N.L.R.B. v. South Shore Hosp., 77-1321

Citation571 F.2d 677
Decision Date28 February 1978
Docket NumberNo. 77-1321,77-1321
Parties97 L.R.R.M. (BNA) 3004, 83 Lab.Cas. P 10,397 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SOUTH SHORE HOSPITAL, Respondent.
CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)

Frederick Havard, Atty., Washington, D. C., with whom John S. Irving, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Carl L. Taylor, Associate Gen. Counsel, Eliott Moore, Deputy Associate Gen. Counsel, and Michael S. Winer, Atty., Washington, D. C., were on brief, for petitioner.

Peter L. Resnik, Boston, Mass., with whom Herrick & Smith and Michael R. Brown, Boston, Mass., were on brief, for respondent.

Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.

BOWNES, Circuit Judge.

There are two issues presented on this Petition for enforcement of a decision and order of the National Labor Relations Board: 1

1. Was the Board correct in its finding that a statement by the hospital's associate director at an employees' meeting violated section 8(a)(1) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1); 2

2. Is the finding of the Board that the discharge of employees Marie Lyons and Ann Conway violated sections 8(a)(1) and (3), 29 U.S.C. § 158(a)(1) and (3) of the National Labor Relations Act, based on substantial evidence?

The technical employees of South Shore Hospital in Weymouth, Massachusetts, are represented by the Service Employees International Union, Local 880, AFL-CIO. The approximately twenty-five employees of the Central Service and Distribution Department (CS&D) of the hospital remain unorganized. The issues concern the statement and the activities of some of the employees of CS&D during the spring and early summer of 1975.

Sometime in late April or early May of 1975, Bette Hill, the manager of CS&D, and supervisor of Marie Lyons and Ann Conway, gave copies of the Union's constitution and bylaws to Lyons, Conway, and another employee, Joseph Murray, for perusal. Lyons took the documents home one evening, but did not read them. The next day, Hill requested that Lyons return the documents. Lyons read them and returned them. Hill asked Lyons what she thought of the constitution, and Lyons responded that she thought the hospital was no place for a union. Hill said that she was glad to hear that Lyons had that opinion.

At a weekly meeting soon after this conversation, Hill asked the CS&D employees whether they wished to meet with the hospital's Associate Director Topham in order to find out more about the Union. Since a majority of the employees indicated that they favored such a meeting, a session was scheduled for May 21, 1975. The administrative law judge specifically found:

In his discourse, Topham reviewed the pros and cons of unionization and answered questions put to him from the floor. . . . (In) response to a query, Topham stated that "no matter what the union got the union employees, the hospital employees would also get." . . . Lyons asked Topham "what percent of people you needed . . . to start a union and also how do you go about starting a union." In reply, Topham remarked that "he hoped it never got to that." Appendix at 2-3.

The administrative law judge also found that at a business meeting Hill told another employee (Celestino) that Lyons was involved with the Union, that . . . (she) had union cards and . . . was trying to force people to sign them, and that . . . (Lyons) was leading a hate campaign against Ms. Hill. App. at 3.

He further found that:

the EKG department head(,) . . . a Statutory supervisor, informed Ann Conway that . . . "talk of central('s) having a union was all over the hospital." App. at 3.

In early June of 1975, Lyons contacted the Union and was advised to schedule an organizational meeting. Both Lyons and Conway notified the CS&D employees that a meeting would be held at Lyons' apartment on June 19, 1975. A second organizational meeting was held at Conway's home on July 2, 1975. Approximately six employees were in attendance at each meeting, including Lyons and Conway, and most of those present executed union authorization cards. On July 3, the hospital discharged Lyons, and on July 7, it discharged Conway.

The hospital contends that Lyons and Conway were discharged solely for just cause: Lyons because she caused a demoralizing atmosphere in the department, and Conway for general poor work and specifically for dallying thirty to forty minutes in the bacteriology laboratory on July 7.

The administrative law judge found and the Board affirmed that the reasons given for the firing were "frivolous" and that Topham's comment was an unlawful promise of a benefit.

We treat first the issue as to whether Topham's comment violated section 8(a) (1) of the Act. Since the facts as to it are basically undisputed, we deal only with the law, accepting the facts as found by the administrative law judge and the Board.

The Supreme Court laid down the broad principles governing an employer's right of communication when faced with union organizing activities in NLRB v. Gissel Packing Co., 395 U.S. 575, 618, 89 S.Ct. 1918, 1942, 23 L.Ed.2d 547 (1969):

(A)n employer is free to communicate to his employees any of his general views about unionism or any of his specific views about a particular union, so long as the communications do not contain a "threat of reprisal or force or promise of benefit." He may even make a prediction as to the precise effects he believes unionization will have on his company. In such a case, however, the prediction must be carefully phrased on the basis of objective fact to convey an employer's belief as to demonstrably probable consequences beyond his control or to convey a management decision already arrived at to close the plant in case of unionization.

Employer free speech comes from two sources: (1) the First Amendment to the Constitution of the United States; and (2) the Free Speech Provisions of the National Labor Relations Act § 8(c), 29 U.S.C. § 158(c). 3

An important element in determining whether speech is protected or an unfair labor practice is the employer's considerable economic power over its employees. Gissel Packing Co., supra, 395 U.S. at 617, 89 S.Ct. 1918. Statements which are determined to be coercive, such as threats of reprisal or force or promise of benefits, are not protected. Textile Workers v. Darlington Mfg. Co., 380 U.S. 363, 85 S.Ct. 994, 13 L.Ed.2d 827 (1965). Coerciveness is to be determined at least partially from the context in which the speech is made. NLRB v. Virginia Electric & Power Co., 314 U.S. 469, 62 S.Ct. 344, 86 L.Ed. 348 (1941).

An employer's freedom of comment in the face of union organizing activity does not include an untrue statement that unionization may be expected to cost employees money, NLRB v. Gorbea, Perez & Morell, S. en C., 300 F.2d 886 (1st Cir. 1962), or an employer's prediction that unionization On the other side of the coin, we have held that an employer's notice to employees that the Union sought to take away a wage increase was not a threat of reprisal or force or promise of benefit and did not constitute an unfair labor practice where the statement was susceptible of proof and equal time for contradiction was available. Coletti's Furniture, Inc. v. NLRB, 550 F.2d 1292 (1st Cir. 1977); NLRB v. Gotham Industries, Inc., 406 F.2d 1306 (1st Cir. 1969).

might result in unnecessary consequences deliberately inflicted by the employer, or a statement, made without any objective evidence, to the effect that consequences not within the control of the employer would be probable. NLRB v. C. J. Pearson Co., 420 F.2d 695 (1st Cir. 1969). In holding that an employer had committed an unfair labor practice by granting seniority wage increases and insurance premium benefits for purposes of discouraging unionization, we looked at both the date of decision by management and the date of the announcement as they related to the scope of union activities and the proximity of a union election. D'Youville Manor v. NLRB, 526 F.2d 3 (1st Cir. 1975). See NLRB v. Styletek, 520 F.2d 275 (1st Cir. 1975).

The issue here is whether Topham's comment made in response to a query at a meeting suggested by the hospital and then requested by the CS&D employees is a violation of the Act. Topham testified that he was asked whether the hospital discriminated between union and nonunion employees. He responded that the hospital did not discriminate and then made the critical comment, "no matter what the union got the union employees, the hospital employees would also get." 4

The Board, in its brief, places principal reliance on Casey Manufacturing Company v. United Shoe Workers of America, AFL-CIO, 167 N.L.R.B. 89 (1967), in which it held that an unsolicited speech to employees on the day before the scheduled NLRB election containing a statement similar to the one here was an unfair labor practice.

(W)e had to maintain the same working conditions in all our plants because of their close proximity. Id. at 96.

In finding that these words constituted an unlawful promise of benefits, the Board stated:

In our view, . . . (the) statement, in the circumstances prevailing at the time it was made, in effect, was an announcement that the Casey employees would receive all the benefits of a union contract without a union, and was, therefore, by clear implication, a promise of benefits made for the purpose of coercing the employees into rejecting the Union and in violation of Section 8(a)(1) of the Act. 5 Id. at 8.

The circumstances prevailing in Casey were not at all the same or even similar to the ones before us. While in Casey the election was to be the very next day, no election had even been requested, let alone scheduled, at South Shore Hospital. The Board noted that the statement in Casey was unsolicited; here the administrative The Board also relied on two other cases, NLRB v. Exchange Parts Co., 375 U.S. 405, 84 S.Ct. 457, 11 L.Ed.2d 435 (1964), and NLRB v. Sandy's...

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