N.L.R.B. v. Los Angeles New Hosp.

• Decision Date: 06 March 1981
• Docket Number: No. 80-7073,80-7073
• Citation: 640 F.2d 1017
• Parties: 106 L.R.R.M. (BNA) 2855, 90 Lab.Cas. P 12,637 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LOS ANGELES NEW HOSPITAL, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1017

640 F.2d 1017

106 L.R.R.M. (BNA) 2855, 90 Lab.Cas. P 12,637

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LOS ANGELES NEW HOSPITAL, Respondent.

No. 80-7073.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Nov. 5, 1980.

Decided March 6, 1981.

Susan L. Dolin, Richard M. Fischl, Washington, D.C., for petitioner.

Catherine Hagen, O'Melveny & Myers, Los Angeles, Cal., for respondent.

On Application for Enforcement of an Order of the National Labor Relations Board.

Before WRIGHT and TANG, Circuit Judges, and HANSON, ^* Senior District Judge.

HANSON, Senior District Judge:

The National Labor Relations Board (Board) found that the Los Angeles New Hospital (Hospital) had interrogated and threatened its employees and created the impression that their protected union-organizing activities were under surveillance, all in violation of § 8(a)(1) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1) (Act). The Board applies to this Court for enforcement of its September 11, 1979, order directing the Hospital to cease and desist from the unfair labor practices and to post an appropriate notice. We conclude that the Board's order should be enforced.

I.

On May 30, 1978, the Hospital announced that it was changing its sick leave policy so that effective June 5, 1978, employees would no longer be paid for their first day of sick leave. Employees Richard Fox and Richard Hopkins began soliciting other employees to sign a petition protesting the policy change. After organizing the petition drive, Fox and Hopkins approached Hospital administrator Jeffery Steadman and asked him to arrange a meeting at which they might present the petition to Stanley Diller, Hospital president and chairman of the board. The meeting was arranged and Fox and Hopkins presented the petition to Diller. At this meeting, the possibility of forming a hospital grievance committee was discussed. The committee composed entirely of employees was formed and it met a few days later in a seventh floor classroom of the Hospital, with management's knowledge and permission. At the grievance committee meeting, discussion turned from specific grievances to unionization, and an organizational meeting was arranged.

On June 19, 1978, a number of hospital employees met with representatives of the Hospital and Service Employees Union, Local 399. The Hospital activities challenged in this proceeding took place before and after the June 19 meeting. We discuss these in more detail below under separate headings, in connection with our review of the Board's separate findings and conclusions.

In reviewing the Board's decision and order, we are mindful that "The judicial role is narrow: The rule which the Board adopts is judicially reviewable for consistency with the Act, and for rationality, but if it satisfies those criteria, the Board's application of the rule, if supported by substantial evidence on the record as a whole, must be enforced." Beth Israel Hospital v. NLRB, 437 U.S. 483, 501, 98 S.Ct. 2463, 2473, 57 L.Ed.2d 370 (1978).

II.

A. Interrogation of Employees Fox and Myles.

1. At the hearing before the Administrative Law Judge (ALJ), employee Richard Fox, a pathologist assistant, testified that Diller approached him while he was in the hospital cafeteria distributing memos that publicized the June 19 union meeting. Diller asked for one of the memos and after reading it, told Fox that he "felt (Fox) was working too hard in the matter." Fox also testified that, on the day of the union meeting, Diller told him "something to the effect that a union would never survive in that hospital and that we were fools and troublemakers for trying to bring one in." Diller also asked Fox for the names of persons who were on the committee. Fox divulged the names, and later, committee members Richard Hopkins and Theresa Siminski told Fox that Diller had called them to his office and questioned them. Also on the day of the union meeting, Fox spoke to Administrator Steadman. Steadman said that he "felt sorry for (Fox) because (he) was under a lot of pressure and that (Fox) had to watch every move (he) made because Mr. Diller was watching (him)." Finally, a couple of weeks after the union meeting, Fox encountered Diller. Fox told him that his involvement in union activities was over. Diller replied, "That's good, because (I'm) still watching (you)." The ALJ credited the testimony of Fox because Steadman's testimony was too "vague and uncertain" to credit and because Diller did not testify at the hearing. The ALJ found that the statements by Diller and Steadman were "derogatory and repressive antiunion comments," and thus § 8(a)(1) had been violated. But, according to the ALJ, the statements failed to indicate that the Hospital had engaged in surveillance of its employees or created the impression that the employees were under surveillance, as alleged in the Complaint filed by the Regional Director. The Board agreed that § 8(a)(1) had been violated, but substituted its own finding that the comments amounted to threats of reprisal, and further created the impression that Fox's union and other protected concerted activities were under surveillance.

2. Jacqueline Myles, a secretary in the engineering department, was asked by Diller on the day after the union meeting whether she had attended that meeting. Diller also asked her for the names of those people in her department who attended. In a separate incident in late September of 1978, Myles was transferred at her request from engineering to the X-ray department. The day after her transfer, Myles's replacement in engineering quit and she was transferred back to her old department. Myles went to Assistant Administrator Sy Zafrani to protest. During their conversation, Zafrani asked her, "How do you feel about the Union?" Myles's testimony was credited because neither Diller nor Zafrani testified at the hearing. The Board upheld the ALJ's finding that the questioning of Myles by Diller and Zafrani was in violation of § 8(a)(1).

3. Interrogation of employees by the employer violates Section 8(a)(1) when that interrogation carries a threat of reprisal against the employee or when it forms a pattern of coercive conduct tending to inhibit the exercise of Section 7 rights. NLRB v. Silver Spur Casino, 623 F.2d 571, 584 (9th Cir. 1980), pet. for cert. docketed, No. 80-660 (filed Oct. 11, 1980). "(T)he test is whether, under all the circumstances, the interrogation reasonably tends to restrain or interfere with employees in the exercise of their protected rights." Penasquitos Village, Inc. v. NLRB, 565 F.2d 1074, 1080 (9th Cir. 1977).

In this case the record amply supports the Board's conclusion that both Fox and Myles were subjected to coercive interrogation by superiors. We note that neither Fox nor Myles was assured by the interrogators that no reprisals would be taken against them. In addition, Diller and Zafrani failed to communicate to the employees whether they had a valid purpose for asking the questions. And finally, Diller, who held the highest position in the hospital management hierarchy, asked both employees specifically for names of individuals who were involved in the organizational activities, reasonably creating an impression that he sought information upon which to base actions against individual employees. All of the aforementioned factors are relevant in weighing the lawfulness of interrogations by management. See NLRB v. Ayer Lar Sanitarium, 436 F.2d 45, 49 (9th Cir. 1970), citing NLRB v. Varo, Inc., 425 F.2d 293, 298 (5th Cir. 1970). Finding substantial evidence on the record as a whole, we uphold the Board's decision as it relates to the interrogation of these two employees.

B. Solicitation by Employee James Cooke.

1. Anesthesia technician James Cooke testified that during the first week of July 1978, he was reading union literature to three other employees during his break time in a break room or lounge that was adjacent to the operating room. He was told by his supervisor, Ora Randall, that he was not supposed to have the literature in that area. According to Cooke, Randall stated that the room was not really a break room and that Cooke was not on a scheduled break. When Cooke continued to read the literature, Randall called him into her office and repeated that he was not on a scheduled break, that he was not supposed to have union literature in that particular room, and that he could be replaced for having the literature there. Randall testified that the area where Cooke was soliciting was not a lounge area, but rather part of the operating room. The ALJ, however, credited Cooke's testimony that the room was used by employees as a break room and that Cooke was in this break room at a time when he customarily took his break. The Board adopted the ALJ's conclusion that Randall prohibited Cooke from discussing unionism on his break time and threatened that he could be replaced for having union literature in the lounge area, both in violation of § 8(a)(1).

2. The general Board policy regarding solicitation in hospitals is that "solicitation on nonwork time may be prohibited only where necessary to avoid disruption of patient care or disturbance of patients." NLRB v. Baptist Hospital, Inc., 442 U.S. 773, 99 S.Ct. 2598, 2603, 61 L.Ed.2d 251 (1979). Thus, proscriptions against solicitation in "immediate patient-care areas" are not regarded as presumptively invalid. Beth Israel Hospital v. NLRB, 437 U.S. 483, 98 S.Ct. 2463, 57 L.Ed.2d 370 (1978). But in areas other than immediate patient-care areas, such proscriptions are presumptively invalid; and if they are to be sustained it is incumbent upon the Hospital to show that "disruption to patient care would necessarily result if solicitation and distribution were permitted in those areas." Id., at 495, 98 S.Ct. at 2470. In addition, we recognize that it is the Board's function to develop presumptions and "its conclusions on such...