N.L.R.B. v. Faulkner Hosp.

• Decision Date: 13 October 1982
• Docket Number: No. 82-1022,82-1022
• Citation: 691 F.2d 51
• Parties: 111 L.R.R.M. (BNA) 2690, 95 Lab.Cas. P 13,816 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. FAULKNER HOSPITAL, Respondent.
• Court: U.S. Court of Appeals — First Circuit

Page 51

691 F.2d 51

111 L.R.R.M. (BNA) 2690, 95 Lab.Cas. P 13,816

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. FAULKNER HOSPITAL, Respondent.

No. 82-1022.

United States Court of Appeals, First Circuit.

Argued Sept. 9, 1982.

Decided Oct. 13, 1982.

Howard E. Perlstein, Washington, D. C., with whom William A. Lubbers, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, and Mary L. Browne, Washington, D. C., were on brief, for petitioner.

Arthur P. Menard, Boston, Mass., with whom Anne K. Morrill, and Morgan, Brown, Kearns & Joy, Boston, Mass., were on brief, for respondent.

Before COFFIN, Chief Judge, SWYGERT, ^* Senior Circuit Judge and BREYER, Circuit Judge.

COFFIN, Chief Judge.

The National Labor Relations Board ("the Board") petitions for enforcement of its order against respondent, Faulkner Hospital. The Administrative Law Judge ("ALJ") found that the hospital had discharged employee John Walsh for giving another employee a written statement that was used in a grievance proceeding and had thus violated § 8(a)(1) of the National Labor Relations Act ("the Act"). Adopting that finding, the Board ordered Walsh's reinstatement with back pay. Because that finding is supported by substantial evidence, we enforce the Board's order.

I.

At the time of the relevant incidents, Walsh had been employed by the hospital as a security guard for four years, bearing the title "security supervisor" for the final two-and-a-half. While on duty on the midnight to 8 a. m. shift, Walsh, in the company of another guard, investigated the presence of an unauthorized motor vehicle and encountered its driver, Gerald McCarthy. Walsh knew McCarthy, who worked as a painter for Balco Corporation, a subcontractor responsible for maintenance work and plant operations at the hospital. McCarthy appeared to be intoxicated, and Walsh asked him to leave. Because it was discovered later that morning that two typewriters were missing from the hospital, Walsh, following the instruction of security chief Joseph McBrine, wrote an incident report of the night's activities including the McCarthy incident.

Later Walsh learned that McCarthy had been fired for drinking on hospital property and that his report had been interpreted to indicate that he had actually seen liquor in McCarthy's possession. Walsh spoke with security chief McBrine on several occasions and with hospital vice-president David Folker on one occasion in attempts to correct what he considered a misuse of his report. During this period Walsh received several phone calls from McCarthy accusing him of lying and threatening him and his family.

One month after the initial incident, McCarthy telephoned Walsh and asked him to write a statement for use at an unemployment compensation hearing saying that Walsh had not seen McCarthy on the hospital grounds with liquor. Walsh agreed and gave McCarthy a statement indicating that though his report indicated that he thought McCarthy was intoxicated on the night in question, he had not actually seen alcohol in McCarthy's possession. Later the same day, after McBrine had received a call from a Balco official indicating that McCarthy had taken Walsh's statement to his union for use in a pending grievance of McCarthy's discharge, Walsh was suspended without pay. He was subsequently fired.

II.

Section 8(a)(1) of the Act, 29 U.S.C. § 158(a)(1), makes it "an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7." Among those guaranteed rights is the right "to engage in ... concerted activities for ... mutual aid or protection." 29 U.S.C. § 157. The hospital argues that the Board erred on three counts in finding it guilty of an 8(a)(1) violation: (1) Walsh was a "supervisor" and therefore not an "employee" protected by the Act; (2) Walsh's giving a statement to McCarthy was not concerted activity for mutual aid or protection; and (3) the hospital had legitimate business reasons for firing Walsh.

We review the Board's contrary findings to determine that they are "supported by substantial evidence when reviewed in light of the entire record." Seven-Up Bottling Co. v. NLRB, 506 F.2d 596, 600 (1st Cir. 1974). If they are, we must accept them even if we might have reached different conclusions had the matter been before us de novo. NLRB v. Walton Mfg. Co., 369 U.S. 404, 405, 82 S.Ct. 853, 854, 7 L.Ed.2d 829 (1962); Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 464, 95 L.Ed. 456 (1951); NLRB v. Amber Delivery Service, Inc., 651 F.2d 57, 61 (1st Cir. 1981). Though "the Board's supported analysis of the facts is entitled to great weight", that analysis must be supported by a reasonable reading of the record as a whole. Maine Yankee Atomic v. NLRB, 624 F.2d 347, 360 (1st Cir. 1980).

A. Supervisory status

"Supervisors" are specifically excluded from protections afforded "employees" under the Act. 29 U.S.C. § 152(3). A "supervisor" is

"any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment." 29 U.S.C. § 152(11).

"By well-settled construction, this section is to be read in the disjunctive, with the existence of any one of the statutory powers sufficient to confer supervisory status regardless of the frequency of its exercise." Maine Yankee, supra, 624 F.2d at 360.

Despite Walsh's job title of "security supervisor", the ALJ, citing numerous specific findings of fact, concluded on the record "that Walsh did not sufficiently possess the authority to use his independent judgment with respect to the exercise by him of one or more of the specific authorities and indicia enumerated in Section 2(11) of the Act." The ALJ noted that when Walsh was given the title "supervisor", "there was no discussion about his authority and he was given no special instructions."

The hospital argues that Walsh had supervisory authority to responsibly direct and assign other guards on the midnight to eight a. m. shift; that, indeed, if Walsh did not possess such authority there was no supervision on that shift. The hospital discounts the ALJ's finding that "(t)he performance of the chores on the midnight shift was handled by the three to four security employees on a voluntary and 'democratic' basis", arguing that it is the ultimate existence of supervisory authority not the manner of its exercise that controls. While we agree that it is the existence of supervisory authority and not the frequency of its exercise that is important, Maine Yankee, supra, 624 F.2d at 364, we find the manner in which duties on the third shift were assigned to be an indication that any residual authority that Walsh possessed over such assignment was of a "routine ... nature" not "requir(ing) the use of independent judgment." Further indication is the ALJ's specific finding that Walsh "periodically switched shifts with rank-and-file security officers and supervisors", resulting in occasions on which there was, in fact, "no designated 'supervisor' ... present on the night shift."

We conclude that the Board's finding that Walsh was not a supervisor for purposes of the Act is supported by substantial evidence.

B. Concerted activity for mutual aid or protection

In support of its contention that Walsh did not engage in concerted activity for mutual aid or protection, the hospital argues that: (1) Walsh did not intend mutual aid or protection in coming to McCarthy's aid but acted only out of fear of McCarthy; and (2) Walsh intended to aid McCarthy only at an unemployment compensation hearing, and such aid is not protected by the Act; and (3) McCarthy was properly discharged and therefore Walsh did not act in concert with a statutory employee.

The hospital's first argument assumes that if an employee is motivated solely by personal concern when he comes to the aid of another employee his action is not protected by the Act. We are not at all sure that intent rather than effect should control in evaluating what activity is protected by the Act. Even assuming that intent is critical, the ALJ had ample evidence in the record upon which to base his conclusion that Walsh did not act primarily out of fear but because he wanted "to tell the truth." ¹

The hospital argues similarly that Walsh gave the statement to McCarthy only for use at an unemployment compensation hearing not for use in grievance proceedings, and that we therefore must decide whether aid given for that purpose is protected by the Act. Because the circumstances of another employee's discharge were at issue in the unemployment compensation hearing, we would have no trouble finding that Walsh's aid for purposes of the hearing bore "a sufficiently close nexus to the terms and conditions of employment to be 'protected concerted activity' ", Supreme Optical Co. v. NLRB, 628 F.2d 1262, 1263 (1980), were the question presented. "The circumstances of the termination of a particular employee potentially affects the relationship between all employees and their employer. It is reasonable for employees to be concerned about the consequences of their possible termination." Id. But we think that what controls here is the employer's motivation. If, as we conclude within, there was substantial evidence that the hospital acted to thwart mutual aid in a grievance proceeding, we think that the protected status of such aid is what is at issue. Furthermore, there is no evidence that Walsh objected to the use of his statement for grievance purposes, a use he was aware of soon after giving the...