South Nassau Communites Hospital

National Labor Relations Board - Board Decisions

Jul 22, 1982

262 N.L.R.B. 1166 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
South Nassau Communities Hospital and District
1199, National Union of Hospital and Health
Care Employees, Retail, Wholesale and Depart-
ment Store Union, AFL-CIO. Cases 29-CA-
7717, 29-CA-7772-1, 29-CA-7772-2, 29-CA-
7815, 29-CA-8001, and 29-CA-8001-2
July 22, 1982
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On September 4, 1981, Administrative Law
Judge Arthur A. Herman issued the attached Deci-
sion in this proceeding. Thereafter, Respondent
filed exceptions and a supporting 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 brief
and has decided to affirm the rulings, findings, 1
and conclusions2 of the Administrative Law Judge
and to adopt his recommended Order, as modified
herein.
I Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
Although the Administrative Law Judge failed to state specifically that
he was crediting the testimony of employee Tomel concerning Manager
Marshall's statements at a meeting on January 31, we find that his ulti-
mate conclusion that Respondent violated Sec. 8(aXI) by Marshall's state-
ments establishes that he was implicitly crediting Tomel's testimony
rather than Marshall's.
I We agree with the Administrative Law Judge that Respondent en-
gaged in unlawful discrimination when, inter ahia, it issued warning letters
to employees Miller and Saleeby for overextending their lunch breaks, as-
signed Miller to more onerous work, and required Miller to produce a
doctor's note after taking a day of sick leave. Although the Administra-
tive Law Judge found that Respondent intended to retaliate against em-
ployees' union activities by each of the foregoing acts, he failed to state
expressly in ultimate findings and/or conclusions of law that such con-
duct violated Sec 8(a)(3) as well as Sec. 8(a(1) of the Act. We hereby
make such findings and conclusions.
In addition, we note that the Administrative Law Judge erred by stat-
ing in reference to Miller's doctor's note requirement that "[t]here is not
one shred of evidence produced by Respondent to show that Miller was
ever told, throughout all the years of her employment, that the Hospital
was dissatisfied with her attendance record." In 1977, Miller was request-
ed a doctor's note for having been absent in excess of 3 days and her
May 31, 1979, performance appraisal form rated her attendance as
"poor." We find. howver, that these remote instances of rebuke in a 7-
1/2-year history of poor attendance by Miller do not rebut the inference
of antiunion discrimination and disparate treatment which arises from the
precipitate imposition of the doctor's note requirement for a single day's
absence. We also deem particularly significant Respondent's failure to ex-
plain satisfactorily why it requested a note from Miller on February 14,
1980, the day after she leafleted employees on the Union's behalf, rather
than on the first day she returned to work after her February 11 absence.
262 NLRB No. 146
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Laoor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
South Nassau Communities Hospital, Oceanside,
New York, its officers, agents, successors, and as-
signs, shall take the action set forth in the said rec-
ommended Order, as so modified:
1. Add the following as paragraph 2(b) and relet-
ter the subsequent paragraphs accordingly:
"(b) Expunge from its files any references to the
reprimands issued to employees Miller and Saleeby
on February 7, 1980, and any reference pertaining
to the discharge of employees Dawson and Tomel,
and notify them in writing that this has been done
and that evidence of these unlawful disciplinary ac-
tions will not be used as a basis for future discipline
against them."
2. Substitute the attached notice for that of the
Administrative Law Judge.
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 sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WE WILL NOT assign employees to more ar-
duous and less agreeable job tasks to induce
said employees to abandon their support for
District 1199, National Union of Hospital and
Health Care Employees, Retail, wholesale and
Department Store Union, AFL-CIO, or any
other labor organization.
WE WILL. NOT issue written reprimands to
employees for overstaying lunch periods be-
1166
SOUTH NASSAU COMMUNITIES HOSPITAL
cause said employees joined or assisted Dis-
trict 1199.
WE WILL NOT require employees who are
sympathetic to District 1199, or any other
labor organization, to produce physicians'
notes for all future absences.
WE WILL NOT refuse to grant the proper
number of vacation days to employees who
support District 1199.
WE WILL NOT threaten you with reprisals
because you joined or assisted District 1199.
WE WILL NOT express to you the futility of
your support of District 1199.
WE WILL NOT discharge you because of
your activities on behalf of and sympathies for
District 1199 or any labor organization.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the
exercise of any of your rights set forth above
which are guaranteed by the National Labor
Relations Act.
WE WILL offer Helen Dawson and Ray-
mond Tomel reinstatement to their former po-
sitions or, if those jobs no longer exist, to sub-
stantially equivalent positions, without preju-
dice to their seniority or other rights and
privileges.
WE WILL expunge from our files any refer-
ences to the reprimands issued to employees
Miller and Saleeby on February 7, 1980, and
any references pertaining to the discharges of
employees Dawson and Tomel and WE WILL
notify them that this has been done and that
evidence of these unlawful actions will not be
used as a basis for future discipline against
them.
WE WILL make whole Helen Dawson, Ray-
mond Tomel, and Eiline Miller for any loss of
earnings they may have suffered by reason of
the discrimination against them, with interest.
SOUTH NASSAU COMMUNITIES HOSPI-
TAL
DECISION
STATEMENT OF THE CASE
ARTHUR A. HERMAN, Administrative Law Judge: On
January 21, 1980, District 1199, National Union of Hos-
pital and Health Care Employees, RWDSU, AFL-CIO,
herein called the Charging Party or Union, filed an
unfair labor practice charge in Case 29-CA-7717, and on
January 25, 1980, filed an amended charge, alleging that
South Nassau Communities Hospital, herein called the
Respondent or the Hospital, had committed unfair labor
practices within the meaning of the National Labor Rela-
tions Act, as amended, by discharging employee Helen
Dawson for engaging in union activities. On February
11, 1980, the Union filed additional charges in Cases 29-
CA-7772-1 and 29-CA-7772-2 alleging that the Hospital
unlawfully discharged employee Raymond Tomel be-
cause he engaged in union activities, and coerced em-
ployees Eiline Miller and Donna Saleeby in the exercise
of their Section 7 rights because they supported the
Union. On February 27, 1980, an additional 8(a)(1)
charge was filed by the Union in Case 29-CA-7815 al-
leging that Respondent threatened its employees that it
would never recognize the Union. On April 24, 1980, an
order consolidating cases and complaint and notice of
hearing issued incorporating all the charges thus far filed
and alleging all of the matters heretofore mentioned. On
May 12, 1980, the Union filed a charge in Case 29-CA-
8001 alleging the constructive discharge of Eiline Miller
because of her union activities, and on May 16, 1980, the
last charge involved in this proceeding was filed by the
Union in Case 29-CA-8001-2 alleging the discharge of
Glenn Siegel for his union activities. Thereafter, on June
30, 1980, an additional order consolidating cases and
complaint and notice of hearing issued alleging the dis-
charge of Siegel and certain 8(aX1) conduct.' And, on
August 19, 1980, the Regional Director for Region 29 of
the Board issued an order consolidating cases thereby
combining the two complaints for hearing.
Respondent duly filed answers to the complaints deny-
ing the commission of unfair labor practices.
Upon due notice, a hearing was held before me in
New York City on September 8, 9, 10, 15, 16, 18, 19, 22,
and 23, 1980. Briefs were filed by the General Counsel
and Respondent and have been duly considered.'
On the entire record in the case, the briefs, and from
my observation of the witnesses, I make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent, a New York corporation, with its princi-
pal office and place of business in Oceanside, New York,
is engaged in operating a nonprofit hospital and provid-
ing medical and other health related services. Respond-
ent, in the course and conduct of its business operations,
annually derives gross revenues in excess of $250,000,
and annually purchases and receives medical supplies and
other goods valued in excess of $50,000 directly from
suppliers located outside the State of New York. The
complaints allege, the Hospital does not deny, and I find
that Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
I find that District 1199, National Union of Hospital
and Health Care Employees, Retail, Wholesale, and De-
partment Store Union, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
I The complaint does not allege Miller's termination as an unfair labor
practice. See fn. 45, infra.
2 The Union. the Charging Party herein, made no appearance at the
hearing
1167
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ill. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Sometime during December 1979, the Union, for the
third time since 1972, engaged in a campaign to organize
Respondent's employees. Eiline Miller, a senior techni-
cian in the special chemistry laboratory, had received
through the mail a few union authorization cards from
Jeff Cohen, a union organizer, and during the first week
in January 1980,3 Virginia Roth, a laboratory technician,
gave Miller about 50 additional cards. Miller distributed
the cards and union leaflets to employees in the Hospi-
tal's employee cafeteria, the laboratory lounge, and the
ladies' locker room. Specifically, on January 17, Miller
handed out union literature and cards to employees in
the cafeteria on her lunch break in full view of several
acknowledged supervisory personnel. Also, on January
31, Miller, along with Ray Tomel, an X-ray technologist,
leafleted the employees in the cafeteria on their lunch
break and, on February 6 at 6:30 a.m., before reporting
for work, Miller and Tomel leafleted in the cafeteria. 4 It
is also Miller's unrefuted testimony that she continued to
hand out-cards and leaflet employees on many other oc-
casions into May when she was no longer employed by
Respondent. 5 In fact, it is her testimony that, on May 2,
she, Cohen, and Glenn Siegel, an inhalation therapist,
leafleted employees at the main gate leading to the hospi-
tal. In addition to the three employees already named,
Donna Saleeby, an employee, testified that she also dis-
tributed union literature on January 17 and February 7 in
the employee cafeteria and was observed doing so by su-
pervisory personnel. While Miller states that she attend-
ed about six to eight union meetings at a pub away from
the premises, and Tomel says that he met with Cohen on
a few occasions at the same pub, there is no evidence
presented as to the number of employees who attended
these meetings. In fact, except for the incidents of union
activity related above and that concerning Helen
Dawson, below, the record is void of any other union
activity. 6 With this as background, we turn now to the
various acts of alleged discrimination by the employer to
determine to what extent, if any, such union activity en-
tered into the thought processes of management when it
decided, as alleged, to inflict a variety of penalties
against various employees.7
B. The Discharge of Helen Dawson
Dawson, a medical technologist in the chemistry labo-
ratory, was discharged on January 10. She had worked
for the Respondent for 2 years before she was dis-
I All dates herein are in the year 1980 unless otherwise indicated.
4Tomel also testified that he distributed authorization cards to fellow
employees after work, during breaktime in the lounge, and in the locker
room of the radiology department.
* Miller resigned in April.
6 Helen Dawson's involvement will be discussed infra.
? I am firmly of the belief, and Respondent does not deny, that the
Union's attempt to organize Respondent's employees was open and noto-
rious, and well known to Respondent. Leafleting of employees by union
organizers was taking place outside the entrances to the hospital, and
Miller, Saleeby, and Tomel testified. without contradiction, that they
were observed by supervisory personnel leafleting employees in the cafe-
teria, during the months of January and February.
charged. During that 2-year period, according to Re-
spondent, Dawson had been counseled and reprimanded
on a few occasions. Specifically, in September 1979, Dr.
Ahmed Khapra, Respondent's director of pathology,
found out that Dawson had not completed her quality
control report. According to Khapra, it was absolutely
essential that the employees finish the quality control
before starting their work, and any failure to do so was a
serious infraction of the rule. Upon learning of Dawson's
failure to complete the report, Khapra became upset, dis-
cussed it with Dawson, and told William Ulrich, the lab-
oratory manager, to write up the discussion. Also in Sep-
tember 1979, Dawson had received an oral counseling
from Khapra for having returned late from a lunch
break. Such action causes an understaffing of the depart-
ment, and Respondent viewed this as a potentially haz-
ardous situation. In December 1979, Dawson was ques-
tioned by Khapra regarding her signing her timecard
with incorrect hours worked, and was told by Khapra to
be careful in the future.8 And on the day that she was
discharged, January 10,9 Dawson invited a nonemployee
to have lunch with her in the employee cafeteria and
supplied her with a laboratory coat to gain entrance be-
cause nonemployees were not permitted in the cafeteria.
The ruse was detected by management, however, and
the nonemployee was asked to leave.
Dawson testified that, during the first week in Janu-
ary, she had been given two union authorization cards
by Miller, one of which she signed and sent to the
Union. On January 9, after Dawson returned from lunch,
she checked her afternoon schedule as it existed up to
that point, and, finding it to be light, she went to the
lounge for her afternoon break. According to Dawson,
Jerona Johnson, a blood bank technician, was seated at
the table in the lounge having coffee, and Dawson sat
down beside her.10 Shortly thereafter, Miller came in
and mentioned that the Union was trying to organize the
employees. With that, Dawson asked Johnson if she
wanted a card, and, upon receiving an affirmative re-
sponse, Dawson handed Johnson the one remaining card
she had, and Johnson put the card in her pocket. " It is
the unrefuted testimony of Dawson that this constituted
the one and only act of union activity that she engaged
in.
Johnson testified that the above incident did not occur
in the lounge; it occurred in the blood bank where John-
son worked. Johnson described the blood bank as a rec-
tangular room with one entrance. Joyce Robinson, a
fellow blood bank technician, worked at a counter table
to the left of the entranceway, Johnson worked at a
counter table in the left rear area of the room, and Her-
8 It seems that Dawson usually worked from 7 a.m. to 3 p.m. On that
particular day, she arrived at the hospital at 7:30 a.m. and worked until
3:30 p.m. However, she inadvertently signed the timecard 7 a.m.-3 p.m.
9 The exit interview occurred in the afternoon.
'o The lounge is entered from the laboratory in which Dawson and
Miller work. It is approximately 15 by 20 feet and is used as a rest area
during breaktime. The lounge leads into the men's and women's lockers.
It is not used as a work area and no patients are permitted in the lounge.
Johnson works in the blood bank which is adjacent to the chemistry lab-
oratory. Blood bank employees use the same lounge as the lab employees.
II Miller confirms Dawson's testimony.
1168
SOUTH NASSAU COMMUNITIES HOSPITAL
mite Theodule, their supervisor, performed her work at
the right of the entranceway. 12 According to Johnson, it
was around 2 p.m. on January 9, while she was doing a
cross-match,13 when Dawson came alongside her and
asked Johnson in a low voice if she wanted a union au-
thorization card.' 4 When Johnson replied in the nega-
tive, Dawson slipped a card into Johnson's pocket and
walked out of the room. Whereupon Johnson called
Theodule and asked her to look in her pocket. Robinson
came over at the same time when Theodule pulled the
union card from Johnson's pocket. Johnson told them
that Dawson had just put it there, and Robinson volun-
teered the information that just a few minutes earlier,
while she had been working at the computer terminal,
which is also adjacent to the chemistry laboratory,
Dawson had asked her if she wanted a card but Robin-
son refused and Dawson walked away.' 5 Theodule then
went and reported the incident to Dawson's supervisor,
Marion Kilfoyle. That afternoon, Johnson and Robinson
were called to Khapra's office and questioned about the
Dawson incident. Both were asked to give written state-
ments and voluntarily did so.
The nest day, January 10, in the afternoon, Dawson
was called in to John Sikoryak's office' 6 and discharged
for violation of Respondent's no-solicitation rule.17
Dawson testified that she was familiar with the no-solici-
tation rule, and that she knew that employees were not
allowed to give out union literature in the laboratory
area.
The General Counsel contends that the Employer's
discharge of Dawson was violative of the Act because
the conduct she engaged in was protected by the Act.
This contention is predicated on the factual explanation
that the solicitation occurred in the lounge, a nonwork
area, during nonwork time. In the alternative, the Gener-
al Counsel argues, without conceding the point, that,
even if the solicitation took place in the blood bank, dis-
charge was still violative of the Act because it showed
disparate enforcement of the no-solicitation rule in light
of the fact that solicitations for other purposes occurred
frequently on the Hospital's premises during working
hours in work areas.' 8
:2 Nothing obscures the view of any of the employees towards the
others
"1 Before a donor's blood is administered in a transfusion, it must be
cross-matched with the recipient to determine if they are compatible.
14 Both Robinson and Theodule were present in the room at the time.
1' Dawson denies that she ever asked Robinson if she wanted a union
card.
ta He is Respondent's director of personnel.
i7 Respondent's no-solicitation rule appears in the Hoapital's employee
handbook which is distnbuted to every employee. It reads as follows:
Solicitation by an employee of another employee is prohibited in pa-
tient care areas or while either the person doing the soliciting or
being solicited is on working time.
Distribution of advertising material, handbills, or other literature is
prohibited in patient care areas or while either the person doing the
distributing or receiving the material is on working time.
Neither the complaint alleges nor does the General Counsel contend that
the no-solicitation rule is invalid, and I find that the above rule is pre-
sumptively valid
lo The record is replete with uncontroverted testimony that employees
solicited other employees, during working hours in work areas, for con-
tributions to forthcoming marriages of employees, employee birthdays,
and birth gifts Also, illx tations to tupperware parties were common-
Respondent justifies the discharge by insisting that the
solicitation took place in the blood bank, a work area,
during worktime, and it draws a distinction between
such solicitation which it contends causes disruption of
work, and what it calls "beneficent" solicitation which
inspires cooperation among employees.
In my opinion, Respondent's contention as to where
the solicitation took place is not supported by the credi-
ble evidence. In the first place, in observing the demea-
nor of the witnesses while they were testifying, I found
Dawson and Miller to be impressive witnesses, making
an honest effort to recount the facts as they remembered
them, where Johnson and Robinson tended to be evasive
and confusing. Secondly, Dawson testified that she was
aware of the fact that "you are not allowed to give out
Union stuff in the lab area." And since it was just as easy
to hand out a union card in the lounge area, it would
make no sense to force a card on an unwilling employee
in the blood bank, a work area, especially, in full view of
another employee and supervisor. Also, it is not believ-
able that Dawson would pass up the opportunity of forc-
ing the card on Robinson at the computer terminal just
minutes prior to allegedly forcing the card on Johnson.
Under all circumstances, I conclude that the union activ-
ity engaged in by Dawson occurred in a nonwork area
on nonworktime, and, as such, was a protected activity.
And any attempt by Respondent to assign other reasons
for the discharge of Dawson must be rejected. It is inter-
esting to note that Respondent offers no explanation for
its instantaneous action against Dawson on January 10,
without ever giving Dawson an opportunity to be heard.
Yet, on at least two prior occasions as testified to by Dr.
Khapra, and as stated supra, Dawson engaged in conduct
worthy of discharge, but was only reprimanded after
consultation. All in all, it is my conclusion that Respond-
ent discharged Dawson because of her union activities,
albeit such activity was limited to only one incident, in
violation of Section 8(a)(3) and (1) of the Act.
C. The Discharge of Raymond Tomel
After having trained for 2 years in Respondent's radi-
ology department, Tomel was employed by Respondent
in December 1974 as an X-ray technologist. It was his
duty to provide diagnostic radiographs for interpretation
by radiologists. 9 When a patient enters the Department
of Radiology, he usually has with him a requisition
signed by the patient's physician which specifies clinical
information regarding the patient and the particular ra-
diologic examination requested. After the X-rays are
taken, the patient is brought back outside the room to
wait while the films are developed and checked. The X-
rays are sent to the darkroom for developing by either
an X-ray technician or the technologist himself. In the
event the films are capable of proper radiological inter-
pretation, the patient is returned to his room, or, if he is
an outpatient, he is sent home. If the X-rays do not ade-
place, and sales of candy and other products were engaged in. At no
time, and Respondent concurs, was an employee ever discharged for par-
ticipating in these solicitations.
g9 At the time of Tomel's employment, Respondent employed 11 full-
time, 7 part-time, and several per diem technologists.
1169
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
quately demonstrate what the radiologist is looking for,
he will request additional pictures be taken.
Tomel testified that, on January 31, he and Miller dis-
tributed prounion leaflets to employees in the cafeteria
during lunchtime, and that Les Marshall, the manager of
the department of radiology and Tomel's supervisor,
came by him and glanced over his shoulder to see what
he was distributing.20
On Wednesday morning, February 6, at or about 6:40
a.m., Tomel and Miller leafleted again in the cafeteria
until about 7:20 a.m. Tomel testified that he then went to
work and, at or about 9 a.m., Marshall and Rodzenko
came through the department greeting the employees.
They greeted Tomel and, as they passed, Tomel heard
Marshall say to Rodzenko, "He's the one." 2 1
Between 11 a.m. and noon that same day, Tomel was
assigned to take X-rays of two patients. Three chest X-
rays were taken of the first patient; when developed by
Tomel the first X-ray came out too dark, and the second
and third adhered to each other when they came
through the processor, making them worthless because
they overlapped. This necessitated the retaking of the X-
rays, which was undesirable since the patient was of
childbearing age. The second patient required a skull
series of four X-rays, and the first two films came out on
the light side and had to be repeated. That afternoon, at
or about 3:30 p.m., Tomel was called into Sykoriak's
office and discharged. Respondent contends that Tomel
was negligent in the taking and developing of the X-rays,
and that such negligence in patient care cannot be con-
doned. Therefore, it had no choice but to terminate
Tomel. The General Counsel contends that, although the
incidents regarding the X-rays occurred, it does not con-
cede that Tomel was negligent, and lays the termination
squarely on Tomel's union activity.
Inasmuch as there is no factual dispute regarding the
actual occurrence of the defective X-rays, I do not find
it necessary for me to assess the evidence for the purpose
of determining whether or not Tomel was negligent in
his operation of the X-ray machine or the processor that
developed the X-rays.2 2 Certainly, an employer has a
right to draw his own conclusion as to the competency
of an employee, and terminate that employee if he feels
that he had not performed his duties properly. However,
if the incident relied on by the employer is merely an
excuse to rid himself of an employee, because the em-
ployer's ulterior motive is the employee's union activity,
then the discharge is violative of the Act, and the ques-
tion of negligence would have nothing to do with it.
In examining the evidence in this case, I must come to
the conclusion that it was Tomel's union activity that
prompted him termination, and not the earlier incidents
that occurred on the discharge date, February 6. In
reaching this conclusion, I am persuaded by several fac-
'o Although Marshall was called by Respondent to testify, he was not
questioned regarding this incident, and so I find that Respondent had
knowledge of Tomel's union activity as of January 31.
21 Although Rodzenko testified that he saw his attorney and gave an
affidavit to a Board agent on the morning of February 6, neither he nor
Marshall deny that this incident occurred, and so it stands unrefuted. I
therefore credit Tomel as to what transpired.
22 The record is replete with testimony from both sides as to the pro-
cedures to be followed in taking X-rays and developing them.
tors. Tomel had been employed as a technologist by Re-
spondent for over 5 years, and no evidence was intro-
duced by Respondent to show that they were ever dis-
satisfied with his work. Yet, two incidents occur back to
back on February 6, and without even calling Tomel in
to offer an explanation, he is summarily discharged. All
this in the face of unrefuted evidence that, in the normal
course of a hospital's operation, X-rays have to be re-
peated from time to time in order for the radiologist to
give a proper diagnosis. Why else would the Respondent
employ two quality control men and station them at the
X-ray processor? In fact, evidence was offered to show
that retakes of X-rays was standard operating procedure,
and, although Respondent's record was better than other
hospitals, it still had a 6-percent retake factor.23
Also, while the Hospital's rules of conduct provide
that an employee's negligence could result in discharge,
no evidence was offered by Respondent to. show that it
was ever done in the radiology department. Such dispar-
ate treatment of Tomel could have only one explanation.
Respondent had just learned one short week before that
Tomel was a union adherent, and so, under the guise of
negligent conduct, it sought to terminate his employ-
ment.
Under all of the circumstances, I find that Respond-
ent's discharge of Tomel was motivated solely by his
union activity. This is based upon Tomel being a compe-
tent employee for 5 years who had never been disci-
plined and whose union activities had become known to
Respondent just a few days earlier. The timing is most
convincing. 24 Such immediate action against Tomel
without oral or written reprimand for the alleged negli-
gence allows me to infer that Respondent's motive was
discriminatory and unlawful.25 Accordingly, the dis-
charge of Ray Tomel violates Section 8(a)(3) and (1) of
the Act.
D. The Discharge of Glenn Siegel
The General Counsel contends that Siegel was dis-
charged in May 1980 for being a known union adherent
and playing an active role in the Union's organizing cam-
paign. Respondent, on the other hand, argues that the
discharge was not unlawfully motivated, but that it re-
sulted from its enforcement of a long-established policy
of terminating employees who willfully falsify their job
application.
On December 12, 1979, Siegel filled out an application
for a job as a respiratory therapist in Respondent's Hos-
pital. 2 6 In answering the question pertaining to prior em-
ployment and the reason for leaving, Siegel omitted men-
tioning that he had previously been employed by Flush-
ing Hospital as a respiratory therapist from May 7 to
July 6, 1979. Notwithstanding this omission, Siegel
signed his name on the application below a statement
that said, "The above answers are correct and complete.
23 This was revealed through a study conducted by the DuPont Com-
pany.
's Southern Paint A Waterproofing Co., Inc., 230 NLRB 429, 433 (1977).
2" The Halloran House, 249 NLRB 759 (1980).
s6 Siegel had worked previously at the Hospital as a student from
March to August 1978.
1170
SOUTH NASSAU COMMUNITIES HOSPITAL
... I understand employment is conditional upon re-
ceipt of satisfactory references and any FALSIFICA-
TION WILL LEAD TO IMMEDIATE DISCHARGE.
. . ." At the hearing, Siegel admitted that he intentional-
ly withheld information concerning Flushing Hospital
for fear that Respondent would not hire him.2 7
About a week after Siegel filled out the application, he
received a call from Sykoriak offering him a job as a
technician on the night shift. Siegel rejected the offer on
the grounds that he was a therapist not a technician, and
he did not want to work the night shift. Sykoriak con-
tacted Siegel again at or about the end of December
1979, and offered Siegel an evening position as a thera-
pist. Siegel accepted and started working for Respondent
on January 18, 1980. The uncontroverted testimony of
Siegel is that during his employment at the Hospital he
did not receive any reprimands, disciplinary warnings,
nor other complaints about his work performance.
Shortly after he started on the job at the Hospital,
Siegel began handing out union authorization cards to
employees; he left Union leaflets in the cafeteria and
handed them out to employees outside the Hospital; and
he discussed the Union with other employees at lunch
and supper.2 s Some time in March, Siegel was trans-
ferred to the day shift.
Siegel testified that on May 6 he wrote a letter ad-
dressed to Michael Rodzenko, the Hospital's executive
director, and brought it to Rodzenko's office and left it
with his secretary; duplicate originals were mailed to the
Board and to the Union. Also, typewritten copies were
made and distributed by the Union.29 The letter identi-
fies Siegel and puts the Hospital on notice that he is a
prounion activist. In one pertinent part Siegel writes, "I
worked in an 1199 hospital in the past." Rodzenko
brought the letter to Sikoryak to place in Siegel's person-
nel file. Sikoryak read it and wondered about the quoted
phrase above, not knowing which hospital Siegel had in
mind. Being admittedly curious, Sikoryak contacted
Bruce Witz O3 and asked Witz if any of the hospitals
listed on Siegel's employment application were organized
by Local 1199. Witz testified that, since he was not sure
of the status of New York Hospital, one of the hospitals
that Siegel had listed on his application, he contacted his
counterpart there and was told that New York Hospital
was not affiliated with Local 1199. However, upon ex-
amination of Siegel's job application at New York Hospi-
tal, it was revealed to Witz that Siegel had previously
worked at Flushing Hospital, a fact which had been left
off Siegel's application when he applied for his position
at South Nassau. Witz relayed this information to Sikor-
yak, who in turn advised Rodzenko. After confirmation
of Siegel's employment and termination from Flushing
2" Siegel stated that he omitted Flushing Hospital from among his em-
ployers because Flushing Hospital's employees were represented by a
union, and if that fact were known to Respondent he would not get the
job.
's Siegel testified that he had known Jeff Cohen, the union organizer,
for about 10 years. and before he applied for the job at the Hospital, he
told Cohen that he would help organize the employees for the Union
once he started to work there.
s0 See G.C. Exhs. 14 and 15.
a0 The Hospital's technical director for the respiratory therapy depart-
ment.
Hospital was received by Rodzenko, he recommended
termination of Siegel for falsifying his employment appli-
cation at the Hospital. And so Siegel was discharged by
Sikoryak on May 12.
In attempting to justify the discharge of Siegel, Re-
spondent introduced evidence to show that on two other
occasions it had discharged employees for falsification of
their employment applications. In both cases the individ-
uals had failed to state that they had been discharged
from former positions, but reference checks revealed the
truth, and both were terminated at the Hospital for falsi-
fication of their employment applications. In the instant
case, Siegel purposely withheld information regarding his
employment at Flushing Hospital, and, therefore, no rou-
tine reference check could possibly reveal it. It was only
after Siegel himself triggered the inquiry by stating in his
letter to Rodzenko that he had worked for "an 1199 hos-
pital" that the falsification of his employment application
came to light. Although the General Counsel would
have me conclude that Respondent's reason for Siegel's
discharge was pretextual, and that the true reason for his
discharge was his union activity, I am unable to do so. If
not for Siegel's own revelation, no inquiry would have
materialized. In fact, by Siegel's own admission his union
activity was open and notorious from shortly after he
started on the job back in January, and therefore well
known to Respondent for several months before his dis-
charge. Yet, he continued in Respondent's employ for
those several months until he himself caused the inquiry
that resulted in his discharge.
In Wright Line, a Division of Wright Line, Inc., 251
NLRB 1083 (1980), the Board has set forth a new test of
caution for cases alleging violations of Section 8(aX3) of
the Act. The test provides that the General Counsel
make a prima facie showing sufficient to support the in-
ference that protected activity was a motivating factor
for the discharge. At that point, the burden shifts to the
respondent to demonstrate that the discharge would still
have occurred even in the absence of the protected con-
duct. It is my belief that Respondent here has amply met
that burden. It has explicitly shown that it will not toler-
ate falsification of employment applications by showing
the discharges of two other employees for that very
reason, and the General Counsel could produce no evi-
dence to rebut such proof. Although there are other as-
pects of this case, as described above, which lend them-
selves to the belief that Respondent discriminated against
employees for their union activity, I do not join with the
General Counsel in assessing Siegel's discharge in such
light. Under the circumstances, it is my opinion that Re-
spondent has demonstrated that Siegel's discharge would
have taken place even in the absence of any protected
activity, and for that reason I find and conclude that this
allegation of the complaint must be dismissed.31
E. The 8(a)(1) Allegations
The consolidated complaints cite eight separate allega-
tions of violations of Section 8(a)(1) of the Act. Five3s
a' See Service Garage. Inc.. 256 NLRB 931 (1981).
32 One of the five allegations involves two separate incidents to be dis-
cussed, infra.
1171
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of these relate to incidents involving Eiline Miller,3S and
three refer to violative statements made at various times
by supervisory personnel, Lester Marshall, Michael Rod-
zenko and Bruce Witz to groups of employees.
According to the testimony presented at the hearing,
Miller appeared to be the leading protagonist for the
Union. As stated above, beginning in early January 1980,
she was the principal distributor of union authorization
cards and leaflets to employees in nonwork areas of the
Hospital. And, as found by me earlier, Respondent was
well aware of her union activities. The question is
whether this knowledge played any part in the discipline
and other actions taken against Miller by Respondent in
the incidents herein related.
The first incident involving Miller occurred during the
middle of January 1980. On or about January 15, 1980,
Miller received a written warning notice3 4 for having re-
ceived T-3 reagents from a manufacturer which had a
short shelf life. The evidence established that, although
the Hospital had no written policy stating what the mini-
mum shelf life should be, it was the practice of the man-
ufacture to send these reagents to the Hospital that had a
minimum shelf life of 45 days. The written warning
notice to Miller pointed up the fact that Miller had ac-
cepted reagents with only a 32-day shelf life, and that as
a result they were not usable during the period for
which they should have been available. While it is true
that Miller herself brought to the attention of her super-
visor, William Ulrich, the inutility of the reagents, this
does not excuse the initial act of acceptance on her part.
Inasmuch as there is no dispute as to the facts involved
in this incident, and Respondent has presented sufficient
evidence to show that other employees similarly situated
have been equally reprimanded, and I find no causal rela-
tionship between this incident and Miller's union activi-
ty, 35 I shall dismiss this allegation of the complaint. a"
On Friday, January 18, Miller and Saleeby met Jeff
Cohen, the union organizer, in the Hospital coffeeshop
for lunch. Cohen gave Miller a large envelope filled with
union material. Later that afternoon Ulrich told Miller
that starting Monday, January 21, she was to replace
Gladys Byrne, a student, on the blood pickup team and
take blood specimens from the patients each morning, in
addition to performing her regular duties as a senior lab
technician. Prior to the commencement of this task, Mill-
er's hours at the Hospital were 8 a.m. to 4 p.m. As a
member of the blood pickup team, her hours changed to
33 Donna Saleeby is also named in one of these allegations.
34 The disciplinary policy of the Hospital is a three-step procedure.
First, there is oral counseling; second, there is a written warning notice;
and third, suspension or withholding of increments or termination.
35 Miller testified that she gave out authorization cards to only three
employees prior to January 15, and that, on January 15, she left a stack
of union literature in the lab lounge before work. There is no testimony
that she was observed by management personnel on either occasion. By
her own admission, Miller's first public exposure of her union activity oc-
curred on January 17 when she handed out union literature and cards to
employees in the cafeteria.
16 The fact that Respondent chose to bypass the first step of its disci-
plinary policy and proceed with the second merely emphasizes to me the
gravity with which it viewed this transgression.
7 a.m. to 3 p.m.37 Miller continued to perform blood
pickup chores on a daily basis until she resigned her job
at the end of April. According to Miller, she had per-
formed blood pickup work a few years back, but then
only once a week. Ulrich testified, in response to my
questions, that the selection of the blood pickup team
was basically the responsibility of Shirley Kent, the he-
motology section head; that each week on Wednesday,
she submits a copy of her pickup schedule to Ulrich for
the following week; that the total number of employees
on the team varies from 8 to 10; that there is difficulty in
staffing the team because it depletes other departments;
and, although all 55 technicians are fair game to be
placed on the schedule, selection is usually limited to em-
ployees in the chemistry and hemotology department,
whose combined number is about 15. Ulrich also stated
that Miller was chosen to replace Byrne because of com-
plaints received about the latter's work.
The General Counsel contends that the assigning of
Miller to the blood pickup team constituted an unlawful
reprisal against her because she had been involved in
union activities. Respondent claims that Miller replaced
Byrne because of the unavailability of employees who
could be spared.
It is my view that the General Counsel's contention is
correct. The record and my findings above that Re-
spondent had knowledge of the fact that Miller was a
leading union adherent, and the timing of this onerous
assignment following closely on the heels of Miller's
union activity just I day earlier in the cafeteria, leave no
doubt in my mind that Respondent's action was geared
to discourage employees from joining or assisting labor
organizations and therefore violative of Section 8(aX3)
and (1) of the Act. I do not believe that Respondent
gives a valid, reasonable explanation of how Miller was
chosen to replace Byrne sufficient to rebut the prima
facie case presented by the General Counsel. While
senior technicians may have been used once a week or
on occasion to work on the blood pickup team, the
record is void of any evidence to show that any senior
technician, other than Miller, was assigned on a daily
basis with no promise of relief in the forseeable future.
Respondent's own testimony, through Ulrich, seemed to
reflect the fact that, while schedule changes were a
weekly procedure, only students worked on the blood
pickup team with some degree of permanence; certainly
not a senior technician of Miller's caliber. Absent some
reasonable explanation as to why only Miller, a senior
technician, was assigned as a permanent substitute for a
student, and considering that her assignment followed
closely on the heels of her activity as a key union orga-
nizer, a fact well know to Respondent, the inference is
warranted, and I find, that the assignment was because of
Miller's union activity. As was stated by Administrative
Law Judge Fitzpatrick in Lowery Trucking Company, 200
NLRB 672, 677 (1972), "This was prohibited discrimina-
tion even though there is no evidence that [Miller] was
disadvantaged thereby, and I find that in so discriminat-
3i Miller testified that, because of the additional duties, she was com-
pelled to work about 5 hours' overtime each week in order to keep cur-
rent with her regular work.
1172
SOUTH NASSAU COMMUNITIES HOSPITAL
ing against [her] Respondent committed an unfair labor
practice within the meaning of Section 8(a)(3) of the
Act."
The third incident of alleged disciplinary action taken
against Miller also included Saleeby and occurred on
February 7. It seems that, sometime back in September
1979, Miller, Saleeby, and Dawson were 15 minutes late
in coming back from lunch, and were orally reprimanded
for this infraction of a hospital rule. On February 7, at or
about 3 p.m., Miller was called into Ulrich's office and
told that he was writing her up for taking an extended
lunch period and he handed her a written warning.38 Sa-
leeby was also presented with a written warning. On
February 8, a third employee, Jackie Fass, was given an
oral reprimand for the same offense.3a Miller and Sa-
leeby contend that it was a common practice at the Hos-
pital, engaged in by employees and supervisors alike, to
combine lunch periods and afternoon break time, and
that the Employer was well aware of the practice; but
that because Miller and Saleeby were known union ac-
tivists, Respondent was coercing them in this regard. Re-
spondent claims that, inasmuch as similar punishment
was handed out to Fass, an employee who was not ac-
tively supporting the Union, and other employees were
also disciplined for overstaying their coffeebreaks,40 the
action taken against Miller and Saleeby was not discrimi-
natory and therefore not violative of the Act. Fass testi-
fied that she heard about the punishment meted out to
Miller and Saleeby on the night of February 7, and pro-
ceeded to Ulrich's office first thing on the morning of
February 8 to find out if she were being written up. It is
her uncontroverted testimony that Ulrich assured her
that she was "doing a fine job" and that she was "not
involved with anything" and "that they [the Administra-
tion] were looking at certain people." Fass impressed me
as a forthright witness who told the truth without any
personal desire to favor either party, and it is for that
reason that I conclude, from the remarks attributed to
Ulrich and not denied, that Miller's and Saleeby's punish-
ment was directly related to their union activity. Ac-
cordingly, I find that Respondent coerced Miller and Sa-
leeby within the meaning of Section 8(a)(1) of the Act.
Respondent's employee handbook provides that "after
3 or more consecutive sick days, a note from a physician
is required; and depending upon circumstances, a note
may be required for each absence.4 The handbook also
provides that employees with a minimum, of I year of
service shall be permitted 11 days' sick leave annually
with pay. The record shows that, during the 7-1/2 years
that Miller worked at the Hospital, she exceeded the 11
days' sick leave on three occasions: 1976. 1977, and
1979.42 On February 11, Miller took her first sick day in
1980; on February 13, Miller leafleted employees in the
cafeteria with union literature and, on February 14,
Ulrich called Miller to his office and requested that she
as As stated above, Miller had leafleted employees on the preceding
day and Saleeby had done the same on February 7 in the cafeteria.
39 Respondent contends that this was Fass' first offense.
40 See Resp. Exh. 40 A-D. It is interesting to note, however, that
these exhibits are a1l dated 1/31/78, more than 2 years prior to the cur-
rent incident
4' Resp. Exh. 2
42 Resp. Exh. 21.
bring a doctor's note for her absence on February II.
The General Counsel contends that Ulrich's actions were
motivated by Miller's union activity, citing the fact that
although Miller had been on sick leave for approximately
90 days during her 7-1/2 year tenure at the Hospital, all
prior to her first engaging in union activity, she had
never been requested to produce a doctor's note; where-
as, following her first day of sick leave in 1980, the year
she became active on behalf of the Union, she is harassed
by Respondent for a doctor's note. Respondent coun-
tered by attempting to show that Miller's frequent ab-
sences interfered with the proper functioning of her de-
partment and had to cease. In addition, Respondent in-
troduced evidence to show that other employees, not in-
volved in union activity, had been disciplined for exces-
sive absences. In analyzing the testimony, I must reject
Respondent's contention. As pointed out by the General
Counsel, in each instance involving the other employees
each had been orally counseled about his absentee record
and given fair warning of the consequences. This was
not done in Miller's case. There is not one shred of evi-
dence produced by Respondent to show that Miller was
ever told, throughout all the years of her employment,
that the Hospital was dissatisfied with her attendance
record. Even her performance appraisal form dated 4-5-
77 (Resp. Exh. 3) has the box "GOOD" checked next to
the title "ATTENDANCE," despite the fact that on
page 2 of the form reference is made to her attendance
as being "erratic presumably due to sickness." Under the
circumstances, I must conclude both from the timing of
Respondent's request for a doctor's note and its discrimi-
natory treatment of Miller in this regard that Respondent
was motivated solely by Miller's union activity and thus
violated Section 8(aXl) of the Act.
The next to last alleged violation of Section 8(a)(I) of
the Act involving Miller requires very little comment.
The General Counsel contends that Respondent, by
Khapra, "imposed more onerous working conditions
upon its employee, Eiline Miller, by ceasing to speak
with her." The evidence on this point is conflicting.
Miller claims that, prior to the end of February, Khapra
would engage in pleasantries with her on a daily basis
and would always discuss work-related problems; how-
ever, after Khapra became aware, at the end of Febru-
ary, that Miller was going to testify at Dawson's unem-
ployment insurance hearing, he ceased talking to her.
Khapra testified that, as far as he was concerned, it was
business as usual, and he was not aware of any unusual
aloofness that he engaged in toward Miller. Inasmuch as
the allegation involves the alleged inaction of an individ-
ual rather than the commission of an overt act, thus in-
volving the state of mind of both parties toward the rela-
tionship, I credit both versions but I cannot find a viola-
tion of the Act. In any event, assuming the condition
complained of did exist, I do not find that it rises to the
level of a more onerous working condition and, there-
fore, I shall dismiss this allegation.
And finally, we come to the last allegation pertaining
to Miller. The General Counsel alleges that Respondent
refused to grant Miller the proper number of vacation
days because of Miller's union activity. The parties stipu-
1173
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lated on the record that in 1977 Miller took one vacation
day more than she was entitled to, and that in 1978 and
1979 she was permitted to take the full complement of
vacation days without having to pay back the one day
from 1977. The evidence further establishes that on April
14, 1980, Miller requested 4 days' vacation leave,43 and
the payroll clerk advised her that she would get back to
Miller after she checked the records; on April 21, Miller
was advised that, because of the extra day that she had
taken in 1977, she was now entitled only to 3 days' vaca-
tion; Miller resigned her employment on April 27,4 4 ef-
fective April 28, 1980.4 5 The General Counsel asserts
that Respondent, by not exacting the day Miller owed
for 1977 in 1978 or 1979, condoned the taking of the
extra day, but that when Miller became a union activist
in 1980 it retaliated against her. Respondent contends
that the total number of vacation days accrued by an em-
ployee would not be checked unless or until the employ-
ee sought clarification or severed her employment, and
claims that Miller did both. I disagree. Insofar as the re-
quest is concerned, not only Miller testified that it was
normal procedure for the payroll clerk to check the em-
ployee's time, but also Ulrich, on direct examination,
stated, "Phyllis [his secretary] had reviewed her [Miller]
vacation entitlement to make sure that she had those four
days coming to her, which is the normal practice." As
for Respondent's contention that, if Miller had not sev-
ered her employment by resigning effective April 28, the
vacation day determination would never have been
made, a review of the uncontroverted evidence reveals
that Miller was advised of the vacation day determina-
tion 6 days before she resigned. As stated above, Miller
was advised by the payroll clerk on April 21, and Mill-
er's letter of resignation is dated April 27, date-stamped
"Received, Personnel Department, Apr. 29, 1980."
It is, of course, well settled that an employer violates
Section 8(a)(3) and (1) of the Act when it takes adverse
action against employees, whether by discharge or dim-
inution of benefits, or worsening of working conditions,
in retaliation for engaging in protected union conduct.
Jack August Enterprises, Inc., 232 NLRB 881 (1977). As
stated above, in determining whether a given allegation
of discriminatory conduct has merit, the Board applies
the following test:
First, we shall require that the General Counsel
make a prima facie showing sufficient to support the
inference that protected conduct was a "motivating
factor" in the employer's decision. Once this is es-
tablished, the burden will shift to the employer to
demonstrate that the same action would have taken
place even in the absence of the protected conduct.
[Wright Line, a Division of Wright Line, Inc., supra,
251 NLRB at 1089.]
's The dates requested were April 23-25 (Wednesday-Friday) and
April 28 (Monday).
4 See Resp. Exh. 7.
4' No constructive discharge is alleged by the General Counsel and
when asked specifically on the record by the Administrative Law Judge,
the General Counsel assured the court that it was not contending that a
constructive discharge occurred.
I find that the General Counsel has made a sufficient
prima facie showing, and that Respondent has failed to
rebut it. Under the circumstances, I conclude that the
action taken by Respondent in denying Miller the extra
vacation day was not for the purpose of rectifying its
records, but was in retaliation for Miller's support of the
Union and, therefore, violative of Section 8(a)(3) and (1)
of the Act.
We come now to the three allegations relating to state-
ments made by Respondent's supervisory personnel. The
first incident complained of is alleged to have taken
place on January 11, the day after Dawson was dis-
charged. Saleeby testified that, on the morning of Janu-
ary II, Ulrich went from aisle to aisle in the chemistry
laboratory telling the employees that Rodzenko wished
to meet with them to clarify the Dawson discharge; that
when the employees gathered together that morning,
Rodzenko told them that Dawson was discharged for en-
gaging in a solicitation that was against hospital policy;
that he, Rodzenko, had reason to believe that "the solici-
tation was for a union and as you know you all have the
right to look at the union but we are not going to stand
by and allow employees to tweak our noses." Rodzenko
then said, "naturally, we will do everything in our
power to keep the union out." Although Rodzenko was
called by Respondent to testify on other matters, he was
not questioned with regard to these statements, and Sa-
leeby was not cross-examined on this incident. I, there-
fore, credit Saleeby, and, in light of my finding, supra,
that Dawson's discharge was violative of the Act, I find
that Rodzenko's remarks, which I accept to be a follow-
up of the Dawson incident, were threats to the employ-
ees regarding any efforts they might engage in to seek
union representation. Under the circumstances, I find
that Respondent violated Section 8(a)(1) of the Act by
the remarks made by Rodzenko on January 11.
A regularly scheduled meeting of the employees in the
radiology department was held on January 31, and Les
Marshall, its manager, addressed the employees. Accord-
ing to Tomel, Marshall advised the employees that he
was aware of the fact that the Union was trying to orga-
nize the employees but that the employees must under-
stand that things would not be the same if the Union rep-
resented the employees. Specifically, Marshall cited the
discretionary powers he had to overlook employee error,
tardiness, and improper dress of employees when there is
no union present, but that he would not have that power
if a union represented the employees. Marshall further
stated, according to Tomel, that Michael Rodzenko, the
Hospital's chief administrator, was opposed to a union
and Marshall felt that Rodzenko would never sign a con-
tract with the Union that called for a pay raise.
Marshall testified that, in response to an employee's
question regarding bereavement benefits, a discussion
about unions developed at that meeting, and Marshall
told the employees that, from his prior experience at an-
other hospital, everything is predicated on the contract
that is negotiated; that it took three decisions over a
period of more than 2 years before a union was voted in,
and that the employees received no increase in salary
during that time; that, after the contract was signed,
1174
SOUTH NASSAU COMMUNITIES 1HOSPITAL
there was stricter observance regarding worktime and
proper attire.
Although Respondent admits that Marshall advised the
employees of the possibility of stricter enforcement of
company rules and working conditions once a union rep-
resented the employees, it contends that such remarks
were protected by Section 8(c) of the Act.48 I disagree.
Although I am aware of the fact that the meeting of Jan-
uary 31 was not specifically held to discuss the existing
union situation at the Hospital but rather was a regularly
scheduled business meeting, I am of the opinion that
management seized upon the opportunity to attempt to
discourage employees from joining up and assisting the
Union. As stated above, Respondent was well aware of
the Union's organizational campaign on January 31.
Once given the opportunity, Respondent, through Mar-
shall, attempted to disenchant the employees by implied-
ly threatening that it would change existing practices
with the advent of the Union. I find that such remarks
fall outside the protection of Section 8(c) and are viola-
tive of Section 8(a)(1) of the Act. 47
The General Counsel further alleges that, on February
19, Rodzenko conducted a regularly scheduled monthly
meeting of the staff, attended by one representative from
each department, at which Rodzenko informed the em-
ployees that it would be futile for them to select the
Union as their representative. The basis for the allegation
lies in the testimony of employee Virginia Roth48 who
attended the meeting. Roth referred to the meeting as a
regularly scheduled rumor clinic meeting at which em-
ployees place questions in a suggestion box, and Rod-
zenko plucks them out at random and attempts to answer
the questions. At this particular meeting on February 19,
after answering questions dealing with the Hospital's
parking field and building fund, Rodzenko responded to
a question regarding Tomel's discharge and then pro-
ceeded to describe in detail the process by which unions
organize, how an NLRB election is obtained, unit break-
downs in hospitals, and collective-bargaining negotia-
tions. Roth testified that Rodzenko said, "As long as I
am at this hospital, there will never be a Union. It will
only be unionized over my dead body." According to
Roth, Rodzenko also told the employees that shortly
after the employees at Syosset Hospital were organized
and a union represented them in negotiations, the hospi-
tal went bankrupt. Rodzenko is also alleged to have told
the employees that, if the Union is voted in, everyone in
the unit would have to join the Union.
Rodzenko acknowledged the mode of the meeting and
that a question was asked which led him to speak about
unions. He admitted giving a dissertation on the process
of union organization as stated above, and that he "per-
sonally was very much against unionization." When
asked on direct examination whether he used the phrase
4s Sec 8(c) of the Act provides:
The expressing of any views, argument, or opinion, or the dissemi-
nation thereof, whether in written, printed, graphic, or visual form,
shall not constitute or be evidence of an unfair labor practice under
any of the provisions of this Act, if such expression contains no
threat of reprisal or force or promise of benefit.
4 Vincent's Steak House, Inc., 216 NLRB 647. 649 (1975).
4' Roth was subpoenaed to testify.
"over my dead body," Rodzenko responded, "I certainly
could not specifically say that I said that in so many
words. However I can say that it might not be some-
thing that I would not use the phraseology." When
pressed by his own counsel, Rodzenko said, "I really
could not specifically say yes . . . but I could have used
the phrase."
Inasmuch as Roth impressed me as a frank and honest
witness, and, although I believe that Rodzenko also was
an honest witness and sought to the best of his ability to
tell the truth as he remembered it, I am convinced, espe-
cially in light of Rodzenko's inability to categorically
deny it, that Rodzenko did use the phrase "over my dead
body" when referring to his acceptance of unionization.
To me, the use of such a phrase conveys a sense of futil-
ity to the employees that selection of a union to repre-
sent them would be to no avail. And, the Board has
found that where an employee imparts such a sense of
futility to its employees, it constitutes a violation of Sec-
tion 8(a)(l).49
The last statement alleged by the General Counsel to
be violative of the Act occurred onf May 2. On that day,
Bruce Witz, Respondent's director of respiratory therapy
and an admitted supervisor, addressed seven employees
in the respiratory therapy department at a regular meet-
ing. Several topics, including the Hospital's dinner dance,
parking facilities, and vacation schedule, were discussed.
Then questions arose regarding the "flyers" that the
Hospital and the Union were handing out, and Witz, in
response to a question, "What can we expect should a
union come in here?" told the employees that he could
not tell them what to expect but that he could tell them
his experiences with unions at a hospital where he for-
merly worked. Witz stated that before the union came in
at Wyckoff Heights Hospital the staff did not have to
punch a timecard, but afterwards timecards were manda-
tory. He also testified that, prior to the union, he was
able to discuss problems with employees on a one-to-one
basis, but after the advent of the union, a union repre-
sentative had to be present during such discussion. Witz
stated that this portion of the meeting took only a few
minutes and no further questions regarding unions were
asked. Aside from eliciting the fact from Witz that put-
ting in timeclocks was the Employer's idea and not the
Union's, 50 the General Counsel's evidence adduced at
the hearing from its witness, Glenn Siegel, bears a strik-
ing resemblance to that stated by Witz, thus requiring no
necessary resolution of the evidence presented. Rather,
the question to be resolved is whether, as alleged by the
General Counsel, the remarks of Witz threatened the em-
ployees with more onerous working conditions, in the
event a union represented them, in violation of Section
'9 International Medication Systems Ltd., 244 NLRB 861, 869 (1979).
Cf. Metropolitan Life Insurance Company, 142 NI.RB 929 (1%3), wherein
an election was set aside when it was found that company supervisors
advised employees that the employer would continue his present policies
and rules even if "Jesus Christ were representing" the employees. The
Board found that such a statement was calculated to convey to the em-
ployees "the utter futility of having union representation."
'0 Witz acknowledged that he did not convey this fact to the employ-
ees, but that he did tell them that the contract required the employees'
time to be documented
1175
DECISIONS OF NATIONAL LABOR RELA TIONS BOARD
8(a)(1) of the Act. I do not believe so. At most, Witz
was telling the employees, in response to a question from
one of them, what existed at another hospital as a result
of bargaining with a union. As such, Witz was merely
conveying to the employees a bit of knowledge that he
acquired while being employed elsewhere, and was
trying to be responsive to a question. Under the circum-
stances, I do not find that Witz' remarks, of such short
duration during the course of a regular business meeting,
constitute a threat of imposing more onerous conditions
on the employees, and, therefore, I shall dismiss this alle-
gation in the complaint.5 1
CONCLUSIONS OF LAW
1. Respondent South Nassau Communities Hospital is
an employer engaged 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.
2. The Union, District 1199, National Union of Hospi-
tal and Health Care Employees, Retail, Wholesale and
Department Store Union. AFL-CIO, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. Respondent, acting through its agents, violated Sec-
tion 8(a)(1) of the Act by assigning employees to more
arduous and less agreeable job tasks, by issuing written
reprimands to employees for overstaying their lunch pe-
riods, by requiring employees to produce physicians'
notes for all future absences, and by refusing to grant its
employees the proper number of vacation days, all be-
cause said employees joined and assisted the Union for
the purpose of collective bargaining.
4. Respondent, acting through its agents, violated Sec-
tion 8(a)(1) of the Act by warning and threatening em-
ployees with reprisals if they joined and assisted the
Union, and by expressing to its employees the futility in
their adherence to the Union by stating that only "over
its dead body" would the the Union succeed.
5. Respondent violated Section 8(aX3) and (1) of the
Act by discharging its employees Helen Dawson and
Raymond Tomel on January 10 and February 6, 1980,
respectively.
6. Respondent violated Section 8(a)(3) and (1) of the
Act by refusing to grant Eiline Miller I day of vaca-
tion.52
7. Respondent did not engage in any other unfair labor
practices as alleged.
8. The unfair labor practices enumerated above are
unfair. labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
THE REMEDY
As Respondent has been found to have engaged in cer-
tain unfair labor practices, I shall recommend that it
cease and desist therefrom and that it take certain affirm-
ative action designed to effectuate the policies of the
Act.
si Dixon Distributing Company, 211 NLRB 241, 243 (1974); Island
Holidays, Ltd. d/bla Coco Palms Resort Hotel, 208 NLRB 966, 967 (1974).
sa But for the action of Respondent in denying Miller the fourth vaca-
tion day, it can be assumed that Miller would have been an employee on
April 28, and therefore entitled to be paid for that vacation day.
Having found that Respondent discriminatorily dis-
charged Helen Dawson and Raymond Tomel, and re-
fused to grant Eiline Miller I day of vacation, I shall rec-
ommend that Respondent be required to make the em-
ployees whole for any loss of earnings they may have
suffered as a result of the discrimination against them.
The loss of earnings shall be computed as prescribed in
F. W Woolworth Company, 90 NLRB 289 (1950), plus in-
terest as set forth in Isis Plumbing & Heating Co., 138
NLRB 716 (1962), and Florida Steel Corporation, 231
NLRB 651 (1977).
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:
ORDER53
The Respondent, South Nassau Communities Hospital,
Oceanside, New York, its officers, agents, successors,
and assigns, shall:
i. Cease and desist from:
(a) Assigning employees to more arduous and less
agreeable job tasks to induce the employees to abandon
their support for the Union or any other labor organiza-
tion.
(b) Issuing written reprimands to employees for over-
staying lunch periods because said employees joined and
assisted the Union.
(c) Requiring employees sympathetic to the Union or,
any other labor organization, to produce physicians'
notes for all future absences.
(d) Refusing to grant the proper number of vacation
days to employees who support the Union.
(e) Threatening employees with reprisals if they joined
or assisted the Union, or any other labor organization.
(f) Expressing to employees the futility of their adher-
ence to the Union.
(g) Discharging employees because of their activities
on behalf of and sympathies for the Union, or any other
labor organization.
(h) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
Section 7 rights.
2. Take the following affirmative action, which is nec-
essary to effectuate the policies of the Act:
(a) Offer to Helen Dawson and Raymond Tomel im-
mediate and full reinstatement to their former positions
or, if such positions no longer exist, to substantially
equivalent positions, without prejudice to their seniority
or other rights previously enjoyed, and make them
whole for any loss of pay or other benefits suffered by
reason of the discrimination against them in the manner
described above in the section entitled "l'he Remedy."
(b) Pay Eiline Miller for I day of vacation plus interest
as set forth above in the section entitled "The Remedy."
s3 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 its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
1176
SOUTH NASSAU COMMUNITIES HOSPITAL
(c) Preserve and, upon 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
under the terms of this Order.
(d) Post at its Oceanside, New York, place of business
copies of the attached notice marked "Appendix."54
s4 In the event that 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 National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
Copies of said notice, on forms provided by the Regional
Director for Region 29, after being duly signed by Re-
spondent'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
employees 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 for Region 29, in
writing, within 20 days from the date of this Order, what
steps have been taken to comply herewith.
1177