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National Labor Relations Board v. Fairview Hospital

April 28, 1971

NATIONAL LABOR RELATIONS BOARD, PETITIONER
v.
FAIRVIEW HOSPITAL, RESPONDENT



Knoch, Senior Circuit Judge, Fairchild and Pell, Circuit Judges.

Author: Pell

PELL, C. J.:

On December 3, 1970, in accordance with its opinion-order of October 20, 1970, this court entered its decree enforcing an order of the National Labor Relations Board issued on March 20, 1969 which, inter alia, directed that Fairview Hospital, Inc. and its personnel should offer a former employee, an orderly, reinstatement with reimbursement of any lost earnings. Despite various attempts by the Board to secure compliance without further resort to this court, the hospital and its executive directress, Geraldine Freund, have continuously refused to comply with the Board's order enforced by this court. The decision of this court ordering enforcement stands unchallenged by a petition for rehearing, by a petition for a writ of certiorari, or by any other recognized proceedings for the purpose of challenging the correctness of a decision of this court.

Accordingly, on April 9, 1971, Fairview Hospital, Inc. and Geraldine Freund were found in contempt of this court and its decree of December 3, 1970, and they were each fined $500 for each day they failed to purge themselves of said contempt.

The hospital and its directress admit noncompliance but state that the discharged employee "had been breaking into the medicine room and stealing drugs and that he had sexual relations with hospital personnel on hospital premises." It is further claimed that Fairview Hospital is a psychiatric hospital, that many of the younger patients have drug-associated problems and that the retention of the employee constitutes a hazard to the operation of the hospital and is inimical to the welfare, mental health and treatment of the patients. It is further claimed that he was discharged at the earliest opportunity.

This court would not lightly impose upon a psychiatric hospital the necessity of hiring an employee who would be a threat to the proper treatment of mental patients. Because of this and because of the stubborn insistence of the hospital and its directress that there will be no rehiring, we have again reviewed the entire record in this cause in connection with an emergency motion of the hospital and its directress praying for an order staying the contempt order of this court for a period of thirty days and to remit and suspend all fines which may have been incurred heretofore so that during said period a petition for certiorari may be filed with the United States Supreme Court. Presumably, the petition for certiorari could request only a review of the contempt order of this court as there has been no timely request for a review of the opinion and decree of this court ordering reinstatement.

This is not a situation in which we are urged to modify our order because subsequent events or subsequently discovered evidence would tend to show that reinstatement would no longer further the purpose of the Act. See NLRB v. Mastro Plastics Corp., 261 F.2d 147, 149 (2d Cir. 1958). The situation indeed is far removed from Mastro.

In the hearing before the trial examiner, Freund was called as an adverse witness by the General Counsel. When asked why the employee in question was fired, she did state on two counts that she would care "to discuss here now." The following then appears in testimony:

"Q. (By Mr. Maslanka) Why was [the employee] fired?

A. That is because he was doing it.

Q. Doing what?

A. He was discussing the union during working hours.

Q. What did you say to him?

A. I just told him he had repeatedly been told not to discuss union activities while he was taking care of patients, and he had been cautioned long before, and if they are ...


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