Misericordia Hosp. Medical Center v. N.L.R.B.
| Decision Date | 06 June 1980 |
| Docket Number | 1149,D,Nos. 885,s. 885 |
| Citation | 623 F.2d 808 |
| Parties | 104 L.R.R.M. (BNA) 2666, 89 Lab.Cas. P 12,098 MISERICORDIA HOSPITAL MEDICAL CENTER, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and Committee of Interns and Residents and New York State Nurses Association, Intervenors-Respondents. ockets 79-4216, 80-4004. |
| Court | U.S. Court of Appeals — Second Circuit |
Frederick T. Shea, New York City (Kelly Drye & Warren, Paul L. Bressan, New York City, of counsel), for petitioner.
Richard S. Zuckerman, Atty., N.L.R.B., Washington, D.C. (William A. Lubbers, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Acting Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, Carol A. DeDeo, Atty., N.L.R.B., Washington, D.C., of counsel), for respondent.
Irwin Geller, New York City (Karen S. Schwartz, New York City, of counsel), for intervenor-respondent Committee of Interns and Residents.
Harder & Silber, Albany (Richard J. Silber, Albany, on the brief), for intervenor-respondent New York State Nurses Ass'n.
Before FRIENDLY, FEINBERG and TIMBERS, Circuit Judges.
Misericordia Hospital Medical Center (the Hospital) petitions for review, and the National Labor Relations Board applies for enforcement, of a Decision and Order of the Board, reported at 246 NLRB No. 57, holding that the Hospital had violated § 8(a)(1) of the National Labor Relations Act (the Act), 29 U.S.C. § 158(a)(1), by making statements equating activity protected under § 7 of the Act, 29 U.S.C. § 157, with disloyalty to the Hospital, by threatening to take reprisals against employees who had been involved in the protected activity, and by discharging a head nurse who had been so involved. The Board ordered the Hospital to cease and desist from these unfair labor practices and to reinstate the discharged head nurse. The Hospital argues that the Board's order was improper, both because the activity engaged in by the employees was not protected by § 7 of the Act, and because the head nurse was a supervisor rather than an employee covered by the Act. Since we are not persuaded by either of these arguments, we deny the petition for review and enforce the order of the Board.
At the unfair labor practice hearing, there was evidence of the following: The Joint Commission on Accreditation of Hospitals (JCAH) is an independent corporation that issues certificates of accreditation to hospitals that meet its standards of institutional medical care. Hospitals that satisfy those standards are "deemed" to be in compliance with federal Medicare "Conditions of Participation," and are accordingly eligible for Medicare funds. See 42 U.S.C. § 1395bb. In addition, hospitals that meet the JCAH's standards are "accredited" within the meaning of the governing New York hospital code. 10 NYCRR, Ch. V, Art. 2, Part 405.2(b). The JCAH conducts bi-annual surveys of hospitals to monitor compliance with its standards; to avoid duplication, its surveys are combined with those of the New York State Health Department.
In June 1978, the JCAH conducted a survey of the Hospital. Pursuant to JCAH requirements, the Hospital had posted notices in mid-May that announced the survey; the JCAH invited interested parties "including staff of the hospital undergoing survey" to present relevant information at the JCAH's "public information interview" concerning whether accreditation standards were being met. In response to these notices, certain Hospital personnel formed the Ad Hoc Patient Care Committee (the Ad Hoc Committee), and prepared a report cataloguing what they felt to be inadequacies in the operation of the Hospital. Among those who participated was Antoinette Cafaro, a head nurse who was responsible for one of the Hospital's "patient care units."
The contract administrator of the Hospital's Committee of Interns and Residents (CIR) 1 presented the Ad Hoc Committee's Report (the Report) at the JCAH's public information interview on June 16. In addition to the survey teams, members of the Hospital administration, heads of Hospital departments, and representatives from the Community Board 2 were also present when the Report was read. 3 The Report listed what the Ad Hoc Committee believed to be "serious deficiencies in the quality of care at Misericordia Hospital." The Committee's criticisms focused on three areas: emergency room and admissions policies; the allegedly inadequate and unsanitary facilities that characterized a number of patient care units, including the unit where Cafaro worked; and nursing staff shortages that had led to "insufficient coverage on many shifts." After listing several miscellaneous criticisms, including the supposed failure of the Hospital's administration to respond to previous reports filed by internal professional committees, the Report closed by stating that the Ad Hoc Committee looked to the JCAH "to exert the necessary pressure to see that these deficiencies are corrected."
Dr. Frank Cicero, the Hospital's Chief Executive Officer, prepared a rebuttal to the Report, which he presented at the JCAH's "summation conference" held on June 20. That "conference" was attended by the survey teams, members of the Community Board, and several hundred of the Hospital's employees. In his rebuttal, Dr. Cicero denounced the Report as the "vicious and venal" product of "a selfish few" determined to jeopardize the jobs of "1,100 good, conscientious and hard-working people." He stressed that the Report was unsigned, and called into question the motives of its authors; in this context, he noted that he appended to his reply "a detailed review of this hospital's involvement" with the CIR and with the three nurses in charge of the floors prominently discussed in the Report. Then there occurred what must have been a dramatic scene; Dr. Cicero asked all Hospital personnel attached to the units mentioned in the Report to stand in turn while he answered the Ad Hoc Committee's specific charges. Thereafter, notwithstanding the deficiencies the JCAH found in the Hospital's operations, including some of those mentioned in the Report, the JCAH re-accredited the Hospital.
Two days after the JCAH's summation conference, Dr. Cicero held a special meeting to which all of the head nurses were invited, with the specific exception of Cafaro and another head nurse who had contributed to the Report. At that meeting, Dr. Cicero again responded to the Report, and pointed out that certain nurses were absent because of their involvement in its preparation. When asked what he thought should happen to those who had contributed to the Report, Dr. Cicero responded that he thought they should "apologize to their co-workers . . . and . . . resign." If they did not resign voluntarily, he stated, other action would be taken.
On June 25, Dr. Cicero called Cafaro to his office and informed her that he was discharging her because "she did not fit in with the short or long range goals of Misericordia Hospital." Cafaro asked whether her discharge had anything to do with her earlier union organizational activity for the New York State Nurses Association (SNA) 4 or with the JCAH presentation. Dr. Cicero's only response was that if Cafaro told him she had nothing to do with those events, he would believe her. When Cafaro then asked why she was being discharged, Dr. Cicero responded, "let's just say our philosophies differ." After Cafaro's discharge, the SNA and the CIR filed charges with the Board. Following an extensive hearing, the Administrative Law Judge (ALJ) found that the Hospital had violated the Act; the Board's Decision and Order affirmed his decision. This action followed.
As the foregoing indicates, there is ample basis for the Board's finding that the Hospital impliedly labelled as "disloyal," and threatened reprisals against, employees who had contributed to the Ad Hoc Committee's Report; Dr. Cicero's statements at the summation conference and at the subsequent nurses' meeting are hardly open to any other interpretation, and the Hospital makes only a perfunctory attempt to argue otherwise. Likewise, the record amply supports the Board's finding that the Hospital discharged Cafaro because of her participation in preparing the Report. The ALJ found implausible the alternative explanations for the discharge tendered by Dr. Cicero at the hearing 5 and was, of course, in the best position to judge the credibility of the witnesses. The Board found no basis in the record for overruling his findings as to credibility, and neither do we. The ALJ's determination is supported by all of the surrounding circumstances: the discharge followed very closely on the heels of the Report, which the Hospital concedes "outraged" Dr. Cicero; the evidence suggests that Dr. Cicero was well aware of Cafaro's contribution to the Report; 6 and he did not state to Cafaro any of the reasons for firing her that he later testified to before the ALJ. The Board could also take into account that although Dr. Cicero told Cafaro that she did not "fit in" with the Hospital's goals, she had received satisfactory or better ratings throughout her 15 years as a Hospital employee. In light of all of the evidence, the Board clearly was justified in concluding that Cafaro was discharged because of her involvement with the Ad Hoc Committee.
The Hospital argues, however, that even if these findings were correct, the Board nonetheless erred in concluding that the Hospital's actions violated § 8 of the Act, since contributing to the Report did not constitute protected activity within the contemplation of § 7 of the Act. We disagree. That section establishes the right of employees "to engage in . . . concerted activities for the purpose of collective bargaining or other mutual aid or protection . . . ." 7 The Supreme Court has recently rejected the view that employees lose their § 7 protection "when they seek to improve terms...
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