University Hospital

National Labor Relations Board - Board Decisions

Apr 5, 1973

202 N.L.R.B. 927 (N.L.R.B. 1973)

UNIVERSITY HOSPITAL
Coliseum Hospital , Inc. d /b/a University Hospital and
Harold T . Steen . Case 31-CA-3050
April 5, 1973
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
On October 11, 1972, Administrative Law Judge
George H. O'Brien issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions2 of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby is,
dismissed in its entirety.
I The General Counsel 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
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions were incorrect Standard Dry Wall
Products, Inc, 91 NLRB 544, enfd 188 F 2d 362 (C A 3) We have carefully
examined the record and find no basis for reversing his findings
2 Inasmuch as the parties did not raise or litigate the issue of deferral to
arbitration at the hearing, the record evidence before us is insufficient for
finding that deferral is warranted in this case Accordingly, we find it
unnecessary to pass on the gratuitous comments of the Administrative Law
Judge concerning National Radio Company, Inc, 198 NLRB No I For
reasons stated in the dissenting opinion in National Radio, Member Jenkins
would not, in any event, defer to arbitration in this case
DECISION
STATEMENT OF THE CASE
GEORGE H. O'BRIEN, Administrative Law Judge: On
August 31, 1972, in Los Angeles, California, a hearing was
held in the above-entitled matter. The complaint, issued
July 11, 1972, is based on a charge filed April 20, 1972, by
Harold T. Steen, an individual employee, and alleges
violations of Section 8(a)(1) and (3) of the National Labor
Relations Act by Coliseum Hospital, Inc. d/b/a University
Hospital, herein called Respondent.
Upon the entire record in this proceeding, including my
observation of the witnesses while testifying under oath, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
927
Respondent is a California corporation engaged in the
operation of a hospital for profit located in Los Angeles,
California. Respondent annually receives gross revenue in
excess of $250,000, and annually receives in excess of
$30,000 in the form of Medicare payments from the United
States Government. Respondent annually receives, directly
from suppliers located outside the State of California,
goods and supplies valued in excess of $5,000, and
annually receives from California suppliers goods and
supplies valued in excess of $10,000, which said goods and
supplies were shipped to said California suppliers directly
from points located outside the State of California.
Respondent's business meets the Board's jurisdictional
standard described in Butte Medical Properties, d/b/a
Medical Center Hospital, 168 NLRB 266.
II. THE LABOR ORGANIZATION INVOLVED
Service and Hospital Employees Union, Local 399,
Service Employees International Union, AFL-CIO, herein
called the Union, is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
1. Whether Respondent, when it changed the work
schedule of Harold Steen from a regular 5-day 40-hour
week to a 3-day 24-hour week was motivated by an intent
to discourage membership in the Union.
2. Whether Respondent, by reducing Steen's hours of
work, forced him to quit his employment, and thereby
constructively discharged him.
B. Material Facts
In December 1971, Respondent employed one male full-
time orderly on the day shift. This was Ross Simmons. On
December 19, 1971, Harold Steen was hired by Director of
Nursing Julia Tovar, and worked regularly 2 days a week
on Simmons' days off through the week ending February
19, 1972. He was told by Tovar that he was a "part-time
employee." During this period, Steen obtained other work
through "The Registry," a vehicle used by nurses and
orderlies to obtain employment in hospitals, private homes,
and elsewhere.
When, on February 21, 1972, Simmons took a leave of
absence projected to last for 6 to 8 weeks, Steen was
assigned Simmons' hours and duties as the regular male
full-time orderly on the day shift. Except for the fact that
he was frequently late for work, and occasionally repri-
manded for tardiness, Steen performed these duties to the
complete satisfaction of Tovar for the remainder of
February and through the month of March.
In late March, Tovar told Steen that Simmons was not
coming back, that she was considering giving Simmons'
position to Steen for permanent duty, but would first have
202 NLRB No. 149
928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Steen in her office to discuss it. This exchange took place in
the lobby of the hospital.
On Friday, April 7, 1972, Tovar called Steen to her office
and charged him with three separate derelictions of duty. A
woman patient had complained that Steen had refused to
prepare her sitz bath. Steen answered that the patient had
refused the sitz bath. Another woman patient, who was on
a salt-free diet, had complained that Steen brought her a
food tray with bacon and had compounded his error by
setting the tray in a position which she could not reach.
Steen merely answered that this was false. Tovar's third
complaint was that Steen had failed to answer the bell of a
woman patient. Steen's answer was that he was unaware of
any occasion when he had failed to answer a bell. Tovar
then stated that, because of these complaints, she could not
make him permanent at that time, but would see how he
worked out in the future.
On the morning of Thursday, April 13, Steen encoun-
tered the Union's business agent, Thomas Moore Bond, in
a hospital corridor. Steen told Bond that Tovar had refused
to make him permanent because of these complaints, and
Bond said, "I am going to look into it."
At about 11 a.m. on Thursday, April 13, Bond entered
the maternity ward and sat down beside the desk at which
Tovar was working. Tovar had dust prepared her work
schedule for the period, Sunday, April 16, through Sunday,
April 30. The schedule is in tabular form. In the left-hand
column are 16 names written in ink. The 15 succeeding
columns are each headed by day and date. The assignment
of each employee on each date is noted in pencil. The
document received in evidence shows many erasures,
where assignments have been changed. Bond, from where
he was sitting, could easily observe that Steen was
scheduled to work only on the following days:
Sunday, April 16
Wednesday, April 18
Saturday, April 22
Sunday, April 23
Wednesday, April 26
Friday, April 28
Saturday, April 29
Sunday, April 30
Although the Union has had a collective-bargaining
agreement with Respondent since February 1969, and
although Bond had since January 26, 1972, been assigned
the duty of administering this contract, he had not
previously conferred with Tovar on any matter. Bond
opened the conversation by inquiring as to the status of
Steen Tovar answered that Steen was a part-time employ-
ee. Bond replied that this was impossible, pointing out that
there was no such thing as a part-time employee recognized
by the contract. Bond reminded Tovar that Steen had
worked longer than the 90-day probationary period set
forth in the contract, and, since he had been working 40
hours per week during the entire month of March, he had
more than fulfilled the 80-hour requirement for health and
welfare contributions set forth in a contract amendment
signed by Respondent February 2, 1972. Tovar insisted
that the contract did not apply to part-time employees, that
Steen, when he was hired, accepted part-time status, and
that Steen had been working 40-hour weeks only because
Simmons was on leave of absence. In answer to Bond's
inquiry as to why Steen was being cut back to 3 days per
week, Tovar answered that she was reducing Steen's hours
because her male census was low,' because Steen did not
appear to get along with female patients, and because he
was late. Bond insisted that Steen should be restored to a 5-
day work schedule and, when Tovar persisted in her
refusal, Bond said he would take it to the Labor Board.
It is doubtful if Bond understood what Tovar was saying.
She was annoyed by his intrusion and spoke very rapidly
with such a pronounced Spanish accent that Bond thought
some of her remarks were in Spanish. Tovar did not erase
any mark on her schedule while Bond was present.
Bond went immediately to the employees' cafeteria
where he found Steen eating lunch with his charge nurse,
Mrs. Wallen. Bond reported that he had been unable to get
anywhere with Mrs. Tovar, and that she had told him that
she was going to reduce Steen's hours to 2 days per week.
At this point, Tovar approached the group and addressing
Steen said: "You speak to him and tell him what I told
you." Steen made no reply. Bond stood up and told Tovar
that they had had their discussion and there was no need to
discuss it further. Tovar, as she left, announced: "He will
have to go back on three days a week."
Tovar posted the assignment sheet on Friday, April 14.
Prior thereto, she had erased the characters "fl" in the
square under "4-28FRI" opposite the name, "Steen, H.
Orderly." When Steen observed the schedule, he called a
hospital where his application had been on file for more
than a year and announced that he was available for "on
call" work.
On Monday, April 17, Bond handed to Tovar a formal
grievance.2 Tovar said they would take care of it in the
front office. On April 20, Steen, at the suggestion of Bond,
filed the charge giving rise to the instant proceeding.
Steen worked for Respondent on Sunday, April 16, and
Wednesday, April 19. He was absent on his next scheduled
workday, Saturday, April 22. He worked for Respondent
on Sunday, April 23, and Wednesday, April 26. He was
late for work on Saturday, April 29. During the intervening
period, he worked 3 days on calls which he had received
from the other hospital.
On Saturday, April 29, when Tovar asked Steen why he
was late, Steen replied that he had been working on
another job because his days had been cut.
On Friday, April 28, Tovar posted a schedule showing
Steen scheduled for 6 days' work in the ensuing 2-week
period. Steen worked for Respondent on Sunday, April 30,
and on Tuesday, May 2. He did not report for his third
scheduled workday during the week beginning April 30.
When Steen called for his bi-weekly paycheck on Friday,
May 5, he told the charge nurse, Mrs. DeLeone, that he
' The average number of male patients in April 1972 was between four arbitration It also contains the following clause
and five In addition to the registered nurse in charge of the floor, there were No employee or applicant for employment shall be discriminated
six other female nurses on the day shift Between April 3, 1972, and May 5, against, either by the Employer or the Union, because of membership
1972, Steen was the only male employee caring for patients on the day shift in or activities on behalf of the Union, or on account of age, sex, race,
2 The contract contains a detailed grievance procedure ending in binding color, religious creed, or national origin
UNIVERSITY HOSPITAL 929
would not be returning. back to work and that he was
quitting because he had another job.
On Monday, May 8, Steen telephoned Tovar. Steen
testified:
I was supposed to return to work on a Monday. I didn't
go in on that particular Monday because I knew that I
had a permanent part-time job that I have now for five
days a week. So this is when I called to let Mrs. Tovar
know that I wouldn't be returning. I had already
notified my charge nurse prior to that on pay day when
I picked up my check that I wouldn't be returning.
C. Concluding Findings
Tovar's decision to reduce Steen's hours had been made,
and the schedule implementing this decision had been
prepared before she was visited by Bond. The reasons
which she stated to Bond were true: i.e. the male census
was low, female patients had complained, and Steen was
frequently late for work. There is no credible evidence in
this record of union animus on the part of any of
Respondent's officials or supervisors. Respondent, in
reducing Steen's hours of work, was not motivated by the
intent to discourage union or other concerted activity.
I 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.
Steen quit his employment because he secured a position
which he liked better , prior to the resolution of the
grievance which the Union had filed on his behalf. This
controversy could and should have been resolved through
the grievance procedure of the contract . National Radio,
Company, Inc., 198 NLRB No. 1.
CONCLUSIONS OF LAW
1. Coliseum Hospital , Inc., doing business as Universi-
ty Hospital , Respondent herein , is an employer within the
meaning of Section 2(2) of the Act, engaged in commerce
and in a business affecting commerce within the meaning
of, Section 2(6) and (7) of the Act.
2. Respondent has not , on this record , engaged in
unfair labor practices affecting commerce within the
meaning of Section 8(a)(1) or (3) of the Act.
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:
ORDERS
The complaint is dismissed in its entirety.
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. -