St. Anne's Hospital, 1009 (1979)

Docket Number:01-CA-14319-1
 
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ST. ANNE'S HOSPITAL St. Anne's Hospital and Madeleine M. Souza, Leslie J. Rocha, Rose Mary Almeida, and Patricia Danis.

Cases -CA-14319. 1-CA-14320, 1-CA-14450, 1CA- 14938, and I-CA- 14465

September 28, 1979 DECISION AND ORDER

BY MEMBERS PENELLO, MURPHY, AND TRUESDALE On February 27, 1979, Administrative Law Judge Herbert Silberman issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed cross-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 briefs and has decided to affirm the rulings, findings.' and conclusions of the Administrative Law Judge, as modified herein, and to adopt his recommended Order, as modified herein.

The Administrative Law Judge found, and the record reveals, that, for a number of years prior to March-April 1978, employees Madeleine Souza and Rose Mary Almeida would normally substitute for Head Nurse Hilda Paruch, an admitted supervisor, when Paruch was absent from work.2

As more fully discussed in his Decision, the Administrative Law Judge also found that between March 17, 1978, and April 16, 1978, Respondent refused to allow either Souza or Almeida to substitute for Paruch when she was absent from work. The Administrative Law I In adopting the Administrative Law Judge's recommended dismissal of the allegation of the complaint concerning Respondent's promulgation of a rule restricting operating room conversations, we find it unnecessary to rely on Textile Workers Union ofAmenca v. Darlington Manufacturing Co., et aL, 31{0 U.S. 263, 268 (1967), cited by the Administrative Law Judge. Rather we are satisfied that the result is fully consistent with the teachings of the Supreme Court in Beth Israel Hospital v. N.LR.B., 437 U.S. 483 (1978):

N.LR.B.. v. Baptist Hospital, Inc., 99 S. Ct. 2598, 86 LC 111,351 (1979), and similar cases that deal with the application of no-solicitation and nodistribution rules in the hospital context.

We agree with the Administrative Law Judge's findings that Respondent violated Sec. 8(aXI) of the Act by discharging employees Souza and Rocha for engaging in Sec. 7 activity. In so doing, we note that Souza and Rocha were openly active in the nurses' protected activity. We also emphasize that Respondent itself recently had established the procedure by which nurses who felt unqualified to participate in assigned surgery could notify their supervisor and be relieved of their assignment. Souza and Rocha dutifully followed this procedure. Hence, Respondent's decision to discharge Sousa and Rocha for doing no more than following instructions and exercising their prerogative to be relieved of their assignments in such sensitive surgery as an aortic aneurysm and an exploratory laparotomy reveals that Respondent's real motive for the discharges was an unlawful one.

2 At such times, the two employees would be referred to as acting charge nurses.

Judge found that the reason for Respondent's refusal of this work to Souza and Almeida was their participation in protected concerted activity during the period from January through March 1978. We agree with this conclusion. However, the Administrative Law Judge also found that, notwithstanding the reason for Respondent's refusal of this work, Respondent had not thereby violated Section 8(a)(1) because 'the process of hiring supervisors.' temporary or othelwise, is not subject to the protection of the Act. For the following reasons, we disagree with the Administrative Law Judge and find a violation in Respondent's refusal to utilize Souza and Almeida as substitutes for Paruch.

In support of his conclusion that Respondent had not violated the Act, the Adminis,:ative Law Judge relied on a portion of the Board's decision in Pacific American Shipowners Association. et al.3

There, a Board majority found that eight individuals who were applying for supervisory positions through a hiring hall were not entitled to the protection of Section 8(a)(3) of the Act. The Administrative Law Judge noted that in dismissing the 8(a)(3) allegation there the majority in Pacific American had stated that 'when Congress amended the Act to exclude supervisors from the definition of the term 'employee,' it thereby denied to those seeking and to those holding supervisory jobs the protection of Section 8(a)(3).'4

However, in that portion of Pacific American on which the Administrative Law Judge relied, the Board majority was speaking of those applicants for supervisor who were not already employed by the hiring employer. Thus, the majority in Pacific American made it clear that its decision was not intended to deprive of the Act's protection present nonsupervisory employees who were seeking promotion to a supervisory position. Specifically, the majority stated that:

Further, we cannot agree that our decision herein affects adversely the rights of nonsupervisory employees in the particular respect which concerns our dissenting colleague: viz, where a rank and file employee of a particular employer.

who applies to his employer for promotion to a supervisory vacancy, is told that he will not receive consideration for the promotion because he has been an active union member. A refusal to accord an actual employee the normal consideration for promotion to a higher position, albeit that of supervisor, based on protected concerted activity during such employment, would clearly 198 NLRB 582 (1952).

498 NLRB at 596.

245 NLRB No. 130

1009

DECISIONS OF NATIONAL LABOR RELATIONS BOARD be a violation of the rights of nonsupervisory employees.5

Clearly, it is just such a situation that we have before us except that here consideration and selection were inextricably intertwined. Almeida and Souza were employees of Respondent who were denied promotions and consideration for promotion, albeit temporary, to a supervisory position because of their involvement in protected concerted activity, i.e., the attempt of the operating room nurses to effect changes in their working conditions. Accordingly, based on that portion of Pacific American which the Administrative Law Judge failed to discuss, we find that Respondent's refusal to offer the temporary supervisory work to Souza and Almeida, which was available during the relevant time period, was a violation of Section 8(a)(l) of the Act.

We also reject the Administrative Law Judge's subsidiary finding that Respondent's actions were justified because Respondent was entitled to the undivided loyalty of its supervisors, temporary or full-time, and Almeida and Souza, by virtue of their activities on behalf of the nurses, had rendered their loyalty subject to question. In a recent decision,6 the Board, in adopting the decision of the Administrative Law Judge, rejected the same argument. The Administrative Law Judge in Little Lake found that until an employee who is being considered for a supervisory position actually becomes a supervisor, he may continue his actions as a rank-and-file employee and may not be held to the code of a supervisor before becoming one. Therefore, here, Respondent's refusal to utilize employees Souza and Almeida in temporary supervisory positions because of their failure to honor a duty of loyalty that they were not bound to honor constituted a violation of the Act.7 AMENDED REMEDY

Having found, contrary to the Administrative Law Judge, that Respondent engaged in certain additional unfair labor practices in violation of Section 8(a)( ) of the Act by refusing to place employees Madeleine Souza and Rose Mary Almeida in the position of acting charge nurse in the operating room because they engaged in protected concerted activities, we find it necessary, to effectuate the purposes of the Act, that Respondent be ordered to cease and desist from engaging in such unlawful conduct and that it be ordered to make the affected employees whole for any I Id. at 597.

6Little Lake Industries, Inc., 233 NLRB 1049 (1977).

7See also Richboro Community Mental Health Council. Inc., 242 NLRB 1267 (1979), to the same effect.

loss of pay they may have suffered as the result of such activity. Backpay shall be computed in accordance with F. W. Woolworth Company. 90 NLRB 289 (1950), and FloridaSteel Corporation, 231 NLRB 651 (1977).8 ORDER

Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modified below, and hereby orders that the Respondent, St.

Anne's Hospital, Fall River, Massachusetts, its officers, agents, successors, and assigns, shall take the action set forth in this recommended Order, as so modified:

1. Insert the following as paragraphs (d) and (e) and reletter the remaining paragraph accordingly:

'(d) Refusing to place employees Madeleine Souza and Rose Mary Almeida in the position of acting charge nurse in the operating room ,because of their protected concerted activities.' '(e) In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of their rights guaranteed in Section 7 of the Act.' 2. Insert the following as paragraph 2(c) and reletter the following paragraphs accordingly:

'(c) Make whole Madeleine Souza and Rose Mary Almeida for any loss of earnings they may have suffered by reason of Respondent's unlawful conduct in refusing to place them in the position of acting charge nurse because of their protected concerted activities in the manner set forth in the Remedy section of the Board's Decision.' 3. Substitute the attached notice for that of the Administrative Law Judge.

See, generally. Isis Plumbing d Healing Co., 138 NLRB 716 (1962). However, consistent with our recent...

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