National Labor Relations Board v. Huntington Hospital, Inc.

550 F.2d 921, 94 L.R.R.M. (BNA) 2233, 1977 U.S. App. LEXIS 10674
CourtCourt of Appeals for the Fourth Circuit
DecidedJanuary 5, 1977
Docket75-1890
StatusPublished
Cited by25 cases

This text of 550 F.2d 921 (National Labor Relations Board v. Huntington Hospital, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
National Labor Relations Board v. Huntington Hospital, Inc., 550 F.2d 921, 94 L.R.R.M. (BNA) 2233, 1977 U.S. App. LEXIS 10674 (4th Cir. 1977).

Opinions

WIDENER, Circuit Judge:

The National Labor Relations Board has petitioned for enforcement of its order finding defendant Huntington Hospital, Inc., of Huntington, West Virginia (the Hospital), in violation of § 8(a)(1) of the National Labor Relations Act, 29 U.S.C. § 151 et seq. (the Act), for threatening union supporters with discharge, and in violation of §§ 8(a)(1) and (3) of the Act, 29 U.S.C. §§ 158(a)(1) and (3), for discharging employees Chapman, Ross, and Patterson for fheir actual or suspected union activities. The Board’s order requires the Hospital to offer Chapman, Ross, and Patterson reinstatement and back pay. We grant enforcement on account of the Board’s findings of unfair labor practices for both the threats and the three discharges, but we deny in part enforcement of the remedy ordered in the cases of Ross and Patterson.

On August 19, 1974, the Union (District 1199, West Virginia, National Union of Hospital and Health Care Employees, AFL-CIO) instituted a drive to organize the custodial employees of the Hospital. A union organizer distributed leaflets and membership application cards to the employees as they reported for work, telling them about a new law enabling them to organize.1 Two of the employees given this information were Kermit Chapman and Homer Ross. According to Ross’ testimony before the Administrative Law Judge (ALJ), when he entered the hospital after receiving the leaflets, Executive Housekeeper Friend Buckner pulled the union literature out of Ross’ pocket and asked Ross if he “really wanted it.” Ross replied that he was “going to read it, anyway,” and took the literature back. Although Buckner denied the incident, the ALJ credited Ross’ testimony. Determining credibility of witnesses is within the province of the Board, and such judgments will not be disturbed by the reviewing court, Benson Veneer Co. v. NLRB, 398 F.2d 998 (4th Cir. 1968), unless they are not supported by substantial evidence on the record as a whole. Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951).

Although the Union’s organizational drive resulted in only four to six membership application cards being returned, at least three of which were returned before the discharges, both Chapman and 'Ross completed the cards and returned them to the Union. Thereupon, the union organizer sent to Chapman and Ross three blank application cards each, with the request that they solicit additional signatures. Chapman distributed his three, and on the morning of August 29 he distributed Ross’ three cards. Although Ross told other employees that he had signed an application card, he did not solicit additional signatures.

On the afternoon of August 29, Chapman, Ross, and Shannon Patterson were discharged. The Hospital’s testimony was that it had received a telephone call indicating that Ross had a record of at least drinking and was not the type of employee a [923]*923hospital would want. The Hospital’s security officer called the local police to check on Ross and discovered he had arrests for drunkenness and driving while intoxicated, and was considered rowdy or dangerous when drinking. The Hospital was not told, however, that Ross had been convicted of a felony within the past 10 years. According to the Hospital, it believed that Ross had lied on his job application by answering “no” to the question “Have you ever been convicted of a crime in the past ten years, excluding misdemeanors and summary offenses?” 2 Robert Adkins, Assistant to the Director of the Hospital, was told by the Director to get rid of Ross and any other troublemakers and people whose work was not up to par. Adkins thereupon instructed Buckner to discharge Ross. According to the Hospital, Chapman was discharged because his work was haphazard and incomplete, and Patterson was discharged because he had consistently refused to wear his uniform trousers for two months or more. This testimony presented by the Hospital conflicted with the testimony given by Chapman and Ross, and the ALJ credited them over the Hospital’s witnesses.

Chapman had been employed in the housekeeping department for approximately three years and was the most senior member of the 18 department employees. He had received two merit increases at Buckner’s recommendation, the most recent of which was about two months prior to his discharge.

The version of Chapman and Ross, credited by the ALJ, follows.

On August 29, at about 3:00 p.m., Buckner directed Chapman to come into his office. As Chapman arrived, Patterson was leaving. Buckner told Chapman to turn in his keys, which Chapman did, and Chapman asked what was going on. Buckner replied that he was phasing out the ECD (Emergency Care Division) on the second floor.3 When Chapman expressed doubt that that was the real reason, Buckner responded “there’s a few more little friends that was tinkering with the union.” When Chapman requested a paper to show that he had been fired, Buckner told him to see Adkins. When Chapman met with Adkins and expressed doubt that he was being discharged because the ECD was being phased out, Adkins asked Chapman why he wanted a union in the hospital. Chapman said “why would anybody else want a union” and left.

Ross had worked in the housekeeping department for about two weeks. Before he was hired, he filled out a job application and was interviewed by Adkins in Buckner’s presence. Ross testified that he told Adkins that he had been arrested a few times and was out on bond on a non-serious charge.4 Adkins considered these minor, decided to give Ross a chance, and directed Buckner to hire Ross. Ross further testified that he was permitted to leave work once to go to court on the matter he mentioned in the interview. The Hospital admitted that Ross’ work was good.

On August 29, at about 3:30 p.m., Buckner called Ross into his office, where he told Ross to turn in his keys because ECD was being phased out. When Ross asked if this meant he was fired, Buckner said he’d “better believe it.” When asked the reason for the discharge, Buckner replied that Ross had been soliciting votes for the union all over the Hospital. Buckner also told Ross, “don’t feel bad. I’ve got Shannon [Patterson] and Chapman, and I’m going to get a few more around here.” Although Ross denied to Buckner that he had been soliciting, Buckner disagreed and said that Ross, Chapman, and Patterson had solicited all the employees and that “if they got the union in here, it would bankrupt the hospital.” Buckner referred Ross to Adkins for his paycheck. While Buckner testified that Ross was fired for falsifying his job applica[924]*924tion, he admitted that he did not tell Ross this when he was fired, nor did they discuss the police record at that time.

Ross testified that he informed Adkins that he was fired by Buckner for soliciting votes, that Adkins disagreed and asserted that he was discharged for lying. When Ross denied that he had lied, Adkins retorted that everything he put in his application was a lie. The Hospital’s security officer did not agree with Adkins’ testimony that the union was not mentioned when Ross was discharged.

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Bluebook (online)
550 F.2d 921, 94 L.R.R.M. (BNA) 2233, 1977 U.S. App. LEXIS 10674, Counsel Stack Legal Research, https://law.counselstack.com/opinion/national-labor-relations-board-v-huntington-hospital-inc-ca4-1977.