Hubbard Regional Hosp. v. N.L.R.B.

• Citation: 579 F.2d 1251
• Decision Date: 21 June 1978
• Docket Number: No. 77-1454,77-1454
• Parties: 98 L.R.R.M. (BNA) 2891, 84 Lab.Cas. P 10,665 HUBBARD REGIONAL HOSPITAL, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — First Circuit

Page 1251

579 F.2d 1251

98 L.R.R.M. (BNA) 2891, 84 Lab.Cas. P 10,665

HUBBARD REGIONAL HOSPITAL, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 77-1454.

United States Court of Appeals, First Circuit.

Argued April 4, 1978.

Decided June 21, 1978.

Jerome N. Weinstein, Boston, Mass., with whom Sydelle Pittas and Herrick & Smith, Boston, Mass., were on brief, for petitioner.

Marjorie S. Gofreed, Atty., Washington, D. C., with whom John S. Irving, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Carl L. Taylor, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, and Joseph A. Oertel, Atty., Washington, D. C., were on brief, for respondent.

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

BOWNES, Circuit Judge.

This case arises on a petition for review and cross-application for enforcement of an order of the National Labor Relations Board finding violations of section 8(a)(1) of the National Labor Relations Act based on unlawful threats and promises of benefits and a finding of a violation of sections We deal first with the facts and law surrounding the allegedly unlawful discharges. The essential facts, which are not really in dispute, are summarized from the administrative law judge's opinion. ² The nurses employed by the respondent hospital formed an independent union, Community Nurses Association (CNA), in 1975. An election was held, and CNA was certified in May of 1975. Unable to successfully negotiate a contract, CNA voted to affiliate with District 1199 Massachusetts, National Union of Hospital & Health Care Employees (the Union). As a result of petitions filed by the Union on January 14 and February 4, 1976, elections were directed for two units: technical and service employees, and registered and practical nurses. Elections were conducted on June 10, 1976, and the Union lost by a significant majority in each unit.

                8(a)(1) and (3) for unlawful discharges.  1  Respondent's position as to the discharges is that the employees were discharged for a legitimate business purpose and that the Board failed to articulate and administer the proper standard for determining the motivation of the employer.  It contends that the alleged violations of section 8(a)(1) were nonexistent or so trivial in nature as to preclude enforcement of the order
                

THE DISCHARGES

In early April of 1976, Edward Soltys, husband of Patricia Soltys who was Assistant Director of Nursing and, therefore, a supervisor, was admitted to the hospital with jaundice of an undiagnosed origin. Soltys was placed in isolation because of the possibility that he had infectious hepatitis, one of the most frequent causes of jaundice. Stringent precautions were taken to render the spread of any infection unlikely. Since the cause of the jaundice was not determined after a week in the hospital, exploratory surgery was scheduled for April 9. ³ The day before surgery was scheduled, Geraldine Siegmund, head nurse for Unit D where Soltys' room was located, obtained Mrs. Soltys' signature for an operation on a consent form and, at the conclusion of their conversation, commented that she guessed they would have to wrap Mrs. Soltys' husband in a plastic sheet when they transported him to surgery because of the possibility of his having a contagious condition. Mrs. Soltys wished her husband good luck that evening; she did not plan to see him before the operation the next morning because she knew he would be given preoperative medication and she did not think that her presence would make him feel any less apprehensive about the impending surgery.

On Friday morning, April 9, Soltys was prepared for surgery by the night shift nurses. Sedatives were administered as part of the preoperative procedure. Registered Nurses Siegmund, Sharon Allard, and Susan Fjellman and Licensed Practical Nurse Marlene Plaza came on duty at 7:00 A.M. It was their responsibility to complete preparations for surgery and to take Soltys to the operating room. Normal procedure would be to put a hospital gown on the patient, place him on a stretcher and cover him with two bath blankets. Because of the possibility of Soltys' condition being contagious, a surgical mask might also be used. There was uncredited testimony that a surgical cap was sometimes used in contagious cases. Normally, a patient is transported to the operating room by two hospital employees.

After the preoperative checklist items were completed, Plaza and another nurse, Sharon Haagsma, not a participant in the bizarre incident that followed, put a hospital gown on Soltys, placed him on a stretcher and covered him with two bath blankets. Nurses Allard and Siegmund and an orderly, Roland Brissette, arrived at Soltys' room at about the time he was put on the stretcher. Allard had with her a disposable yellow gown on which she had lettered the words "Yellow Bird Express." This was put on Soltys by either Allard or Brissette. Someone then handed Brissette a brown plastic bag which he placed over Soltys' feet. Siegmund then said that a surgical mask was needed, and one was placed over the patient's face. It was then suggested that a hat was needed and a plastic shower cap was put on Soltys' head. All of this was accompanied by considerable laughing and talking on the part of the nurses. The nurses testified that Soltys joined in the laughing and chatter and made no objection to what was being done. This testimony was contradicted by Nurse Haagsma who said that Soltys was quiet and withdrawn because of the sedatives given him. The administrative law judge credited Haagsma's testimony. None of the nurses or any of the other personnel wore any protective gowns or masks.

When preparations were completed, Siegmund told Allard to call Mrs. Soltys and tell her that they were taking her husband to surgery in case she wanted to see him. Allard had Mrs. Soltys paged and, when she responded, gave her the message. The entire group then started to wheel Soltys' stretcher through the hall to the surgical suite. At about the time the stretcher was leaving Unit D, Brissette left to return to his regular station. Mrs. Soltys met the stretcher as it left Unit D, and Mrs. Fleming, Director of Nursing, was in the hall a short distance away. According to Mrs. Soltys, there was a lot of laughing and joking going on, but her husband was drowsy and did not join in. Mrs. Soltys wished her husband good luck, said she would see him after the operation and left. The stretcher, accompanied by the four nurses, then proceeded past Mrs. Fleming, who made no comment. When they arrived at the surgical suite, the nurses turned the stretcher over to the Operating Room Supervisor Russell. In response to a direct look from Russell, Siegmund said, "What's the matter can't you take a joke so early in the morning?" Russell replied, "Not this."

At about 9:30, Mrs. Soltys asked Fleming of news of the operation, and told her that she was very upset about the manner in which her husband was taken to the operating room. She asked Fleming not to say or do anything about it at that time because she was concerned about her husband's condition and did not want to appear to be an interfering wife.

Mrs. Soltys met Siegmund at the cafeteria during lunch. They talked about her husband's condition, but the "Yellow Bird Express" was not mentioned. At about 2:45 that afternoon, Mrs. Soltys, while giving a patient report to Associate Director of Nursing Diane Canty, told her about her husband's trip to the operating room. She asked Canty to tell the nurses on Canty's shift to be sure that her husband never learned how he was dressed.

When Mrs. Soltys came to visit her husband that evening, she met Richard Garber, an administrative resident, in the lobby. He asked her if what he had heard about her husband was true; she confirmed that it was and told him she was very upset about it. Garber then called the hospital administrator, Bernard Gagnon, partially described what happened, and said that this had upset Mrs. Soltys. This was the first time that Gagnon learned of the incident, and he said he would look into it.

Mrs. Soltys also discussed the affair with the Supervisor of the Intensive Care Unit, Richard Guibault, who told Nurse Marsha Dean that Mrs. Soltys had been crying and was upset about the "Yellow Bird Express" lettering on the gown and the fact that she had been called to come see her husband under such conditions.

Gagnon immediately started an investigation and on Monday, April 12, at about 3:00 P.M. called Siegmund, Allard, and Plaza to his office. He told them that their actions had humiliated their patient and had upset Mrs. Soltys, who was worried about her husband's having cancer. Gagnon went on to tell the nurses that they had acted unprofessionally and that, since he was emotionally upset by what happened, he did not want to take any action at the present time. He suspended all three pending further investigation and adverted to the possibility of termination. He did not ask the three nurses for their version of what had happened, why they had done it, or if anyone else was involved.

On the next day, April 13, a number of nurses gathered outside Gagnon's office, asked that the three nurses be reinstated, and presented him with a petition signed by a number of employees stating their belief that the suspensions were caused by the nurses' union activities. The administrative law judge found, and the record bears him out, that the hospital was well aware of the union activities of all four nurses. They all wore union buttons, and notations to that effect had been placed in their personnel files. Allard had testified at CNA's certification hearing. Siegmund's record showed that Soltys had noted, during the union campaign, in an otherwise favorable evaluation, "(E)motionally she had not been up to her normal self, and the personnel in her unit have also been feeling the uprising tensions."

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