N.L.R.B. v. Mount Desert Island Hosp.

• Decision Date: 14 December 1982
• Docket Number: No. 82-1313,82-1313
• Citation: 695 F.2d 634
• Parties: 112 L.R.R.M. (BNA) 2118, 95 Lab.Cas. P 13,904 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. MOUNT DESERT ISLAND HOSPITAL, Respondent.
• Court: U.S. Court of Appeals — First Circuit

Page 634

695 F.2d 634

112 L.R.R.M. (BNA) 2118, 95 Lab.Cas. P 13,904

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. MOUNT DESERT ISLAND HOSPITAL, Respondent.

No. 82-1313.

United States Court of Appeals First Circuit.

Argued Oct. 6, 1982.

Decided Dec. 14, 1982.

Elliott Moore, Deputy Associate General Counsel, Washington, D.C., with whom William A. Lubbers, General Counsel, John E. Higgins, Jr., Deputy General Counsel, Robert E. Allen, Associate General Counsel, and Sharon Apfel, Washington, D.C., were on brief, for petitioner.

Thomas C. Johnston, Bangor, Maine, with whom Clare Hudson Payne, and Eaton, Peabody, Bradford & Veague, Bangor, Maine, were on brief, for respondent.

Before COFFIN, Chief Judge, TIMBERS, ^* Senior Circuit Judge, and BOWNES, Circuit Judge.

TIMBERS, Circuit Judge:

The National Labor Relations Board, pursuant to Sec. 10(e) of the National Labor Relations Act, 29 U.S.C. Sec. 160(e) (1976), applies for enforcement of its order, reported at 259 N.L.R.B. 589 (1981), requiring respondent Mount Desert Island Hospital to offer immediate employment to former employee Malachy Grange and to cease and desist from committing various unfair labor practices in violation of Sec. 8(a)(1) of the Act, 29 U.S.C. Sec. 158(a)(1). The Hospital challenges the legal standard applied by the Administrative Law Judge (ALJ) and the Board, as well as the sufficiency of the evidence supporting the Sec. 8(a)(1) findings.

We hold that there was substantial evidence in the record as a whole to support the Board's finding that the Hospital violated Sec. 8(a)(1) by blacklisting Grange; and we are prepared to enforce the Board's order in that respect. The Board's finding that the Hospital's failure to rehire Grange in the summer of 1979 constituted a Sec. 8(a)(1) violation is also supported by substantial evidence. Since we hold, however, that the Board and the ALJ did not apply the proper legal standard to determine whether the Hospital's refusal to rehire Grange in 1980 violated the Act, we remand the case to the Board for further proceedings in accordance with this opinion and we retain jurisdiction pending the Board's further order.

I.

The Hospital hired Grange as a licensed practical nurse in September 1977. In May 1978, Grange began to voice complaints about working conditions in the Hospital as well as what he considered to be inept managerial policies. He discussed his concerns with fellow workers, placed signed and unsigned complaints in the Hospital's suggestion box, and approached his supervisor, Director of Nursing Louise Dunne, to discuss his view of the Hospital's shortcomings.

After receiving little response from his superiors, Grange sent a letter to the editor of the Bar Harbor Times on July 3, 1978. This letter detailed his complaints, both with regard to working conditions at the Hospital and with regard to the level of patient care provided by the Hospital. ¹ Subsequent to the publication of the letter on July 6, the editor of the Times visited the hospital and discussed working conditions with thirty additional employees who substantiated many of Grange's claims. Two weeks later, Grange circulated a petition among the employees of the Hospital requesting that the community and the Board of Trustees of the Hospital investigate working conditions at the Hospital. Over one hundred employees signed the petition. The Times printed the petition on July 27. The adverse publicity allegedly was a factor in the decision of the Board of Trustees to cancel its capital fund drive. The Hospital did not discipline Grange for his activities.

Grange resigned of his own accord in December 1978 to pursue a more advanced nursing degree as a registered nurse (RN). At his exit interview he reiterated that, while he enjoyed working with fellow employees, he had found many of the Hospital's procedures to be grossly inadequate. He received notification that he passed the RN examination in March 1979.

In a letter sent shortly thereafter to Dunne, his former supervisor, Grange requested an application for summer employment. Grange called the Hospital on March 27 to renew his request. Dunne responded that nursing positions were available, particularly on one shift. Grange said he wanted such a position. Dunne told him to consider that he was hired. Grange submitted an official application. Dunne's assistant informed him again to consider himself employed as of the summer.

When Dunne returned from vacation, she informed Lotreck, the Hospital Administrator, that she planned to hire Grange. According to hospital procedures, it was necessary for Lotreck to approve all hiring decisions. Lotreck instructed Dunne to tell Grange that no positions were available, stating that he could not hire someone who had caused the Hospital so much trouble. Subsequently, on May 2, Lotreck instructed his assistant to contact the administrator of the Sonagee Estates Nursing Home to describe the Hospital's dissatisfaction with Grange and to recommend that Sonagee not hire him if he should apply. The administrator of Sonagee testified that he received a phone call informing him that Grange was a troublemaker who had caused grief at the Hospital.

In March 1980, after filing charges with the Board, Grange reapplied to the Hospital for a summer job as a RN. The new Director of Nursing, who believed that Lotreck would not countenance Grange as an employee, responded that no summer position was available. The only summer nurse in fact hired had been promised the job previously. In June, Grange changed his application to one for permanent employment. He was informed that only specialty RNs were needed. He was given a reference, however, for an opening in a nearby hospital. That hospital later offered him a position, which he rejected. The Hospital did not hire any permanent RNs that summer. There was testimony that the Hospital could have trained Grange, as it had trained other nurses in the past, to be a specialty RN in several months, his aptitude permitting.

The General Counsel of the NLRB filed a complaint alleging that the Hospital's refusals to rehire Grange violated Secs. 8(a)(1) and 8(a)(4) of the Act. After trial the ALJ found that the Hospital had violated Sec. 8(a)(1) by refusing to rehire Grange because he had engaged in concerted, protected activities while striving for better working conditions through meetings and through the letter published in the newspaper. No Sec. 8(a)(4) violation was found. The ALJ did find further, however, that the Hospital's advice to Sonagee not to hire Grange constituted blacklisting in violation of Sec. 8(a)(1). Consequently, the ALJ ordered the Hospital to cease and desist from the unfair labor practices and to offer Grange immediate employment in any nursing position available for which he was qualified. The Board adopted the ALJ's findings and his recommended remedy, with the exception that it ordered the Hospital, if necessary, to dismiss any employee the Hospital had hired since refusing to rehire Grange if a vacancy did not exist in a position for which Grange was qualified.

To enforce the Board's order which was entered June 21, 1982, the instant application was filed.

II.

Section 8(a)(1) of the Act proscribes employer actions which restrain or coerce employees in the exercise of rights guaranteed under Sec. 7 of the Act, 29 U.S.C. Sec. 157 (1976). One of the chief rights protected is the right to engage in concerted activities for the purpose of improving working conditions. See NLRB v. Washington Aluminum Co., 370 U.S. 9, 17-18 (1962). Thus, employers have been held to have violated Sec. 8(a)(1) if they have discharged employees because of the employees' prior protected activities. Trustees of Boston University v. NLRB, 548 F.2d 391 (1st Cir.1977); Hugh H. Wilson Corp. v. NLRB, 414 F.2d 1345 (3rd Cir.1969), cert. denied, 397 U.S. 935 (1970). The instant case presents the question whether refusals to rehire employees based on their past concerted, protected activities similarly constitute violations of Sec. 8(a)(1). To resolve that question, we initially must determine whether a job applicant like Grange is an "employee" within the contemplation of Sec. 8(a)(1). We hold that he is.

Although job applicants may not be afforded the full panoply of protections under the Act, they do qualify for many of the core protections. Our starting point is the decision of the Supreme Court in Phelps Dodge Corp. v. NLRB, 313 U.S. 177 (1941), which held that Sec. 8(a)(3) (then Sec. 8(3)) protects applicants from prospective employers who discriminate in regard to hire or tenure of employment. The Court held that Sec. 8(a)(3) covers applicants--to the end of protecting both individual applicants as well as the organizing efforts of employees already hired. The Court said, "The effect of such discrimination is not confined to the actual denial of employment; it inevitably operates against the whole idea of the legitimacy of organization. In a word, it undermines the principle which, as we have seen, is recognized as basic to the attainment of industrial peace." Id. at 185.

The Board and various courts of appeals have relied on Phelps Dodge to provide job applicants other protections under the Act. For instance, in Time-O-Matic, Inc. v. NLRB, 264 F.2d 96, 99 (7th Cir.1959), a foreman told prospective employees that nonmembership in a union was a condition of employment. In holding that the coercive effect of such statements constituted a violation of Sec. 8(a)(1), the court explained that a "violation of section 8(a)(1) of the Act was complete when the statements were made to prospective employees who are employees for purposes of the Act." Id. at 99. We followed that interpretation of Sec. 8(a)(1) in Wyman-Gordon Co. v. NLRB, 654 F.2d 134 (1st Cir.1981). There an employer interfered with an applicant's free exercise of protected rights by interrogating the applicant as to prior union activities. We held, ...