Board of Trustees of City Hospital

National Labor Relations Board - Board Decisions

Jan 26, 1981

254 N.L.R.B. 805 (N.L.R.B. 1981)

BOARD OF TRUSTEES OF CITY HOSPITAL
The Board of Trustees of City Hospital, Inc. and
National Union of Hospital & Health Care Em-
ployees, 1199 W. V. A. a/w Retail, Wholesale
and Department Store Union and Violate Bran-
non. Cases 5-CA-10989 and 5-CA-11066
January 26, 1981
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND TRUESDALE
On September 12, 1980, Administrative Law
Judge John M. Dyer issued the attached Decision
in this proceeding. Thereafter, the Respondent filed
exceptions and a supporting brief, and the General
Counsel filed a brief in support of the Administra-
tive Law Judge's Decision and a brief in reply to
the Respondent's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge2 and to adopt his recommended Order, as
modified herein.
i The Respondent has excepted to certain credibility findings nmade by
the Administrative Law Judge. It is the Hoard's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant eidence con-
vinces us that the resolutions are incorrect Standard Dry Hall Prodfuct.
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir 1951) We have
carefully examined the record and find no basis fr reversiig his findings
Additionally, we are satisfied that the Respondent's contclntllns that
the Administrative Law Judge was biased are ultholut nmrit There i,
nothing in the record to suggest that his coIndiuct at the hearing, hi, reso-
lutions of credibility, or the inferences he drew were affected by any bias
or prejudice
2 We agree with the Administrative Law Judge, for the reasons he
stated, that Lydia Nelson was not a supervisor as defined in Sec 2(11) of
the Act. We also agree that Nelson's discharge violated Sec. 8a)(3) of
the Act. Applying the analysis we set forth in Wright Line, a Division of
Wright Line, Inc., 251 NLRB 1083 (1980), to the evidence in this case, we
conclude that the General Counsel made a prima facie showing that Nel-
son's protected activity was a motivating factor in the Respondent's deci-
sion to discharge her, and the Respondent did not establish an affirmative
defense. As pointed out by the Administrative Law Judge, the General
Counsel showed that Nelson was a knoswn unihin supporter. was the em-
ployee who first contacted the Union, circulated a petition to determine
employee interest in a union, and distributed union leaflets The General
Counsel also demonstrated that the Respondent's management was con-
cerned about Nelson's activity, felt she was a "troublemaker." therefore
examined closely her work performance, her attitude, and her actixities,
and determined to try to involve her in supervisory action to remove her
from union activity. In addition, evidence was presented that a few
weeks before Nelson's termination she had autioned the Respondent that
curtailment of benefits would bring the Unilon back In response to this
prima Jfcie case of discrimination the Respondent did not carry out its
burden of showing that its action with respect to Nelson ould hase
been the same even in the absence of protected conduct Although the
Respondent contended that Nelson was a supervisor and was discharged
for insubordination, the evidence did not establish the indicia of supervi-
sory status required by the Act or establish that Nelson was i fact dis-
charged for insubordination. Nelson. who had receited a good ealuallon
254 NLRB No. 97
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
The Board of Trustees of City Hospital, Inc., Mar-
tinsburg, West Virginia, its officers, agents, succes-
sors, and assigns, shall take the action set forth in
the said recommended Order, as so modified:
1. Insert the following as paragraph 2(b) and re-
letter the subsequent paragraphs accordingly:
"(b) Preserve and, upon request, make available
to the Board or its agents, for examination and
copying, all payroll records, social security pay-
ment records, timecards, personnel records and re-
ports, and all other records necessary to analyze
the amount of backpay due under the terms of this
Order."
2. Substitute the attached notice for that of the
Administrative Law Judge.
and a merit pay raise about a month before, as terminated at a brief
interview at s hich she was told she did not get along with superisor)
personnel, and was given little opportunity to present her posltiorl In
Ihlit iltcriew, insuhordination was, not given as the reason for the tIrm
nat.iln So far s Nelson knew, she was the onl_ person to has.e beenh dis-
charged during her 3 years' emplosment with the Respondent
APPENDIX
NOTICE TO EMPI.OYEES
POSTED BY ORDER OF THE
NATIONAl. LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE WILL NOT fire employees for engaging
in union and concerted activities with other
employees for their mutual aid and protection.
WE Wll.l NOT unlawfully interrogate our
employees about their union sentiments or ac-
tivities or the sentiments or activities of other
employees.
WE WILL NOT threaten and coerce employ-
ees by warning them they will be discharged
for engaging in union activities.
WE WILl. NOT maintain an unlawful no-so-
licitation rule.
WE WIILL NOT in the same or any similar
manner interfere with, restrain, or coerce em-
ployees in the exercise of rights guaranteed
them under Section 7 of the Act.
805
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE. wll. offer Lydia Nelson immediate and
full reinstatement to her former job of hema-
tology section supervisor and reimburse her
for the pay she lost as a result of our discrimi-
natory action, with interest.
Our employees are free to become or remain
members of National Union of Hospital & Health
Care Employees, 1199 W. V. A., a/w Retail,
Wholesale and Department Store Union.
THE BOARD OF TRUSTEES OF CITY
HOSPITAL, INC.
DECISION
STATEMENT OF THE CASE
JOHN M. DYER, Administrative Law Judge: On May
22, 1979,' the National Union of Hospital & Health Care
Employees, 1199 W. V. A, a/w Retail, Wholesale and
Department Store Union, herein called the Union or
Charging Party, filed a charge against the Board of
Trustees of City Hospital, Inc., herein called City Hospi-
tal or Respondent, and amended that charge on June 25,
alleging that Respondent had violated Section 8(a)(1) and
(3) of the Act by terminating Lydia Nelson on May 9.
Violet Brannon filed the charge against Respondent in
the second case on June 18 and amended it on July 16,
alleging that Respondent violated Section 8(a)(l) and (3)
of the Act by causing her termination.
The Regional Director issued a complaint in the first
case on July 13, alleging that Respondent had violated
Section 8(a)(l) of the Act by maintaining an invalid no-
solicitation rule and had violated Section 8(a)(3) and (1)
of the Act by its termination of Lydia Nelson.
On August 15, the Regional Director issued a com-
plaint in the second case, alleging that Respondent had
violated Section 8(a)(l) of the Act through the conduct
of its supervisor, Gary Ballard, in threatening discharge
of employees for engaging in union activities and by in-
terrogating employees concerning union activities. An
order consolidating cases and an amended order consoli-
dating cases were issued by the Regional Director in
August.
Respondent's timely answer admitted the service and
commerce allegations and the supervisory status of Ad-
ministrator Gordon Taylor and Assistant Manager Gary
Ballard, but denied that it had violated the Act in any
manner.
Essentially, the cases revolve around Lydia Nelson,
who started the union movement around October 1978
and was terminated by Respondent some 8 months later.
The main question is whether Lydia Nelson was a super-
visor or whether Respondent attempted to portray her as
such in order to stop her union participation as a super-
visor and give itself insulation if it decided to terminate
her and possibly to taint any union organization because
of her relationship with it. The answer to this question is
based principally on credibility findings. I have found
i Unless specifically stated otherwise, the events herein took place
during the latter part of 1978 and the first half of 1979.
that Respondent did violate the Act as alleged, since I
credit the testimony which shows that Respondent em-
barked on a campaign to neutralize the Union and rid
itself of Lydia Nelson who was the main union activist at
Respondent. Administrator Taylor's testimony was con-
tradicted both by written evidence and by a number of
other witnesses, including both the General Counsel and
Respondent witnesses, and I do not find him or Dr. Ji-
menez to be credible witnesses. They were both evasive
and tended to talk around and not answer questions
asked, particularly on cross-examination, but testified in
broad, general terms and contradicted themselves as
well. On occasion, they were also led extensively in im-
portant areas, and some Respondent records produced
contradicted them as well. Some of the General Coun-
sel's witnesses were still employed by Respondent and
some were not. On the whole, their testimony was more
credible and, where there are contradictions between
them and Dr. Jimenez or Administrator Taylor, they are
credited. Since I have found that Respondent embarked
on a scheme to enable it to rid itself of Lydia Nelson and
taint any union organization, there is reason not to credit
some of Respondent's other witnesses who were assisting
in the plan or pay attention to some of Respondent's
physical evidence which was prepared in furtherance of
the scheme.
The parties were afforded full opportunity to appear,
to examine and cross-examine witnesses, and to argue
orally at the hearing held in this matter on February 7
and 8 and March 12 and 13, 1980, in Martinsburg, West
Virginia. General Counsel and Respondent have filed
briefs which have been carefully considered. On the
entire record in this case, including the exhibits and testi-
mony, and on my evaluation of the reliability of wit-
nesses based on the evidence and their demeanor, I make
the following:
FINDINGS OF FACT
I. COMMERCE FINDINGS AND UNION STATUS
Respondent is a West Virginia corporation engaged in
the operation of a nonprofit community hospital in Mar-
tinsburg, West Virginia. During the preceding year Re-
spondent's gross revenue exceeded $250,000, and during
that period it purchased and received materials and sup-
plies directly from outside the State which were valued
in excess of $50,000.
Respondent admits, and I find, that it is engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
Respondent admits, and I find, that National Union of
Hospital & Health Care Employees, 1199 W. V. A., a/w
Retail, Wholesale and Department Store Union, is a
labor organization within the meaning of Section 2(5) of
the Act.
II. THE UNFAIR LABOR PRACTICES
A. Background and Facts
Respondent began as two separate hospitals, City Hos-
pital, herein called City, and Kings Daughters Hospital,
806
BOARD OF TRUSTEES OF CITY HOSPITAL
herein called KD, which were a couple of miles apart in
Martinsburg. Sometime around 1976, the boards of the
two hospitals decided to merge the two institutions and
combine them ultimately in one new larger building to
be known as City Hospital. The merger began with inte-
grations of facilities such as the laboratories, which in
1977 were merged with Marvin Grubbe, the chief techni-
cian at KD, becoming the chief technician over both
units with his office at City. Most of Grubbe's time was
spent at City and he had an assistant at KD.
At the beginning of 1977, when the merger was being
effected, Respondent hired a management corporation,
Hospital Corporation of America, herein called HCA, to
manage the combined operations, and HCA began man-
aging Respondent on February 1, 1977.
The present administrator, HCA employee Gordon
Taylor, was in charge of Respondent's fiscal operations
until he became the administrator in July 1977. The com-
bined operations of the two hospitals employed over 600
people.
The main part of this inquiry deals with the laborato-
ries. At the time of the merger, there were approximate-
ly 40 lab employees which decreased to about 32 to 33
employees during the relevant period. At City there
were four lab sections consisting of histology, blood
bank, hematology, and chemistry and microbiology, each
of which had a section head. Lydia Nelson was the sec-
tion head of the hematology section. At City there were
approximately 8 to 10 people in the lab covering those
sections during the day shift, with a total of some 18
technicians for the three shifts. The balance of the em-
ployees worked at KD.
According to the uncontradicted testimony, when KD
had been a separate hospital, it had set up a large number
of job descriptions covering a chief technician, assistant
chief technician, section supervisors, etc., for a large
number of positions but these job descriptions had not
been used, nor were there people filling all those various
jobs. Those descriptions were brought to City but never
issued to the employees.
B. The No-Solicitation Rules
Prior to the merger, City prepared and distributed to
its employees a personnel policy handbook. The exhibit
shows that it was copyrighted in 1973 by Hospital Publi-
cations, Inc., and it has a cover stating that it is the per-
sonnel policy handbook of City Hospital, Inc., of Mar-
tinsburg, West Virginia. This policy handbook was made
available and given to employees, according to the testi-
mony, up through 1977. It covers all the topics of em-
ployment, including benefits, insurance, rules regarding
absence, leave, smoking, etc., and has a rule which pro-
hibits any solicitation in the building with the exception
of the hospital building fund and sales by the hospital
auxiliary aides. On its face, this rule under Board law is
improper.
The parties stipulated that there was a plaque on a
wall near the reception area and telephone switchboard
at City which stated: "Solicitation is prohibited on hospi-
tal premises." Clearly this rule violates Board law re-
garding solicitation. It was stipulated that during the
hearing in this case the plaque was removed from the
wall.
Administrator Taylor testified that in April 1977 his
predecessor issued a document to both divisions of Re-
spondent which was entitled "Employee Fringe Bene-
fits." According to Taylor, the booklets which had been
in effect prior to that time at KD and City would have
been in conflict regarding a number of items and the
document entitled "Employee Fringe Benefits," which is
approximately six pages long, replaced the other two
booklets.
The covering letter, dated April 14, 1977, states only
that the attached policy of consolidated fringe benefits
was to become effective May 1, 1977, and that efforts
were continuing to equate other benefits and that em-
ployees would be kept informed by letters on publica-
tions. There is nothing in this letter which states that any
rules in the previous booklets or any directions therein
were abolished with the publication of this fringe docu-
ment policy. There is no testimony that prior to the pub-
lication of this April 14, 1977, employee fringe benefits
policy there was any revocation of the rules for either
division. Respondent points to nothing other than this
one document as being a revocation of all other rules.
Taylor also said that in July or August 1977 he told
the heads of the various departments that new hand-
books would be prepared and that all would get policy
letters which would be put out in the interim. According
to Taylor, there was no "no-solicitation" rule in effect
during that period. However, there is nothing which es-
tablishes that the no-solicitation rule was revoked since it
was included in the handbooks and obviously this policy
on employee fringe benefits was not meant as a complete
replacement for everything that was contained in the em-
ployee's handbooks. Indeed the plaque remained on view
to all at City until it was taken down during this pro-
ceeding.
Without a specific revocation of the no-solicitation
rule, the employees could not know that there was any
so-called revocation. Insofar as employees were aware,
the no-solicitation rule was still in effect since it had not
been specifically revoked, and the plaque was still on
view at City.
Employee fringe benefits are not the same as policy
and rules established by Respondent and the issuance
here of a fringe policy benefits statement cannot be held
to be an abrogation of all prior policies or rules.
I therefore conclude and find that during the material
time when union activities were taking place up until the
dates of the hearing in this matter Respondent had in
effect an illegal no-solicitation rule.
That rule has since been replaced by another rule
which is not under attack by the General Counsel. There
is no evidence in this proceeding that any employees re-
ceived any discipline or reprimands as a result of the il-
legal no-solicitation rule. At this point it is not known
what, if any, problems were caused to employees during
the period of union activity by the no-solicitation rule.
Since the unlawful rules have been rescinded or re-
moved, I will not enter an order that Respondent rescind
them but merely provide a prohibitive order.
807
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. Events Between October 1978 and January 1979
Lydia Nelson began working for Respondent in April
1976 in the hematology lab and by the end of 1977 had
become the section head. She worked with two other lab
technicians on the day shift and they would arrive early
and start working on the various samples to be checked.
When Nelson arrived around 9 a.m., she would check
with them to see what had been started and what was
done, to see what she should pick up on. She testified,
and others corroborated, that the only additional respon-
sibilities the section head had was for the quality of the
work done in the section and to check whether the in-
struments were working properly. She would also estab-
lish new tests if they were needed, usually in consulta-
tion with the pathologist and, if she ran into any difficul-
ty, would check with the pathologist.
In 1977, the chief pathologist was Dr. Jimenez who
had Dr. Tamara as his assistant chief pathologist. Ji-
menez had replaced another pathologist and was on a
contract basis with City. He had previous employment as
the director of the KD lab prior to the merger.
Nelson and all others in the lab, with the exception of
Marvin Grubbe, were paid on an hourly basis, punched a
timeclock, and received overtime pay rates for any work
beyond their normal schedules.
Nelson testified and was corroborated by others that
they had not seen any written descriptions of their jobs
prior to her termination and she testified she had not
seen written descriptions of either the assistant chief
technologist or chief technologist's jobs.
Respondent had established a system of pay scales
with various grades set for various classifications. In the
laboratory there was a wage scale of grade 9 for a medi-
cal lab technician who was unregistered and the rates
within that scale were from $4.11 to $5.42 per hour. A
registered medical laboratory technician had a grade II
scale with rates that ranged between $4.45 and $5.87 per
hour. An unregistered medical technologist was in pay
grade 13 with rates from $4.81 to $6.34 per hour. Regis-
tered medical technologists were in grade 15 with pay
rates which ranged from $5.21 to $6.87 per hour. There
is no question but that all of these jobs are nonsupervi-
sory. According to Respondent's pay chart, the next step
or grade is grade 16 which it titles "section supervisor of
the laboratory." That grade has pay scales from $5.42 an
hour to $7.15 per hour. This pay scale was not in use
prior to early 1979. The grade 17 pay scale is the grade
for an assistant chief technologist and the pay ranges
from $5.64 to $7.44 per hour.
From this review of pay grades, it would appear that
there was no separate pay grade for a section head, as
employees such as Lydia Nelson were designated at the
beginning of 1979. After complaints about the pay and
that technologists were bumping the pay ceiling, Respon-
dent changed the title of section heads to section super-
visors and put them in the new grade so that their pay
ceilings were raised and they could earn more money.
All of the testimony was to the effect that there was no
change whatever in job duties, responsibilities, or skills
between the job of a section head and a section supervi-
sor. The job content remained the same although the
title included the word supervisor. Testimony did not es-
tablish that any supervisory responsibilities or authority
were granted to this group of employees.
In September or October 1978, Respondent cut out
call-in pay for lab employees. Call-in pay was paid to
employees who were called back to work after their shift
when an emergency situation arose. The employees
became upset since it represented a decrease in pay. The
lab employees complained to Chief Technologist Grubbe
and to Dr. Jimenez, asking to have the call-in pay re-
stored. Respondent refused to do so. Employees were
also complaining because their anniversary evaluations,
which were evaluations made of their skills, etc., on the
anniversary date of their starting employment with Re-
spondent, were not being made timely. When the evalua-
tions were made, the employees were graded and were
given merit increases, depending on their evaluations,
with the top merit increase being usually an 8-percent
raise. When the evaluations were not done timely, the
people were not getting their raises timely which led to
their complaints.
According to Lydia Nelson, the employees were also
complaining about supervisors reprimanding them and
their being no way to protest the reprimands. She decid-
ed to call a hospital in Fairmont, West Virginia, and
there spoke to a nurse and asked her for information so
they could organize a union at Respondent. Although
she was told a return call would be made, none was.
Later Nelson called a Chambersburg, Pennsylvania, hos-
pital and got the name of the Union. She called the
Charging Party, spoke to an organizer concerning orga-
nizing the employees at Respondent, and was told they
wanted to get an idea on the amount of interest the em-
ployees had in organizing and asked her to get up and
circulate a petition for the Union. Nelson prepared a pe-
tition which stated, "We, the people of City Hospital,
Inc., wish to meet with a representative from the Nation-
al Union of Hospital & Health Care Workers" and
signed her name and department and left space for other
signatures. She made 12 copies of this petition and dis-
tributed them throughout the hospital. She got 10 copies
back showing some employee interest and forwarded
them to the Union around the end of October. There-
after, some union meetings were held and leaflets were
distributed at Respondent, and Nelson assisted in the dis-
tribution of leaflets and attended union meetings.
Marvin Grubbe, who was the chief technologist at Re-
spondent until January 29, 1979, when he resigned at the
request of Administrator Taylor, testified that he became
aware of the union campaign when he was shown a
copy of Nelson's petition by the chief of maintenance at
Respondent. He saw a copy or the same copy in Admin-
istrator Taylor's office that same day when Taylor called
him in for a conference. According to Grubbe, Taylor
said that he was very upset by it and felt that Lydia
Nelson was a troublemaker and that they should do ev-
erything they could to get her out of the hospital. Taylor
told Grubbe that Nelson was the initial contact with the
Union and that Grubbe was to watch out for her passing
out union material or signature cards. Grubbe told
Taylor that the employees were upset over the cut in
call-in pay but that he would do the best he could to ob-
808
BOARD OF TRUSTEES OF CITY HOSPITAL
serve what she did. He was to watch for any mistakes
she made in her work, also what her attitude was to-
wards Dr. Jimenez and himself, to check on her conver-
sations with other employees in the hall or in the lab,
and to watch out for petitions and signature cards.
Taylor told Grubbe that Lydia Nelson had contacted
someone there about organizing a union.
After the original discussion with Taylor, Grubbe dis-
cussed the organizational campaign with Dr. Jimenez
and Dr. Tamara, the two pathologists, and with an attor-
ney from the Hospital Corporation of America.
In another meeting Taylor told Grubbe that John
Roush, Donna O'Rourke, Don Foster, Earl Lanham, and
Loretta Rose, who were all lab employees, were in-
volved in the union movement. Grubbe was told by
Taylor to watch out for the activities of all these em-
ployees and to try to involve Lydia Nelson as much as
possible in actions of a supervisory nature so that Re-
spondent could prove that she was a supervisor which
would remove her from union activity. Taylor said that,
if they could remove her from the union activities pic-
ture, the union movement might die out.
Grubbe testified that meetings with Taylor concerning
Lydia Nelson and the Union and trying to establish her
as a supervisor and trying to undermine the union activi-
ties took place during October, November, and Decem-
ber, 1978 and January 1979.
During the meetings throughout this period Grubbe
reported to Taylor anything he considered to be of a sus-
picious nature, such as Nelson or any of the other five
being involved in conversations with other employees.
Grubbe said he assumed such conversations were about
the Union and would report the names of those in the
conversations to Taylor since Taylor had told him to
keep an eye on these individuals and watch for that sort
of thing. Taylor also told Grubbe that these people could
not conduct union activities on company time.
In a number of these conversations with Taylor, Dr.
Jimenez was present. In one which Grubbe remembered
in particular, Taylor told him, with Jimenez present, to
concentrate on showing Nelson to be a supervisor and
make her use supervisory authority so that they could
prove she was a supervisor and thus remove her from
the lab. Grubbe testified that he was told what items of
supervisory authority to look for and to give her.
Taylor's testimony was somewhat contrary to that of
Grubbe. Taylor admitted he had received a copy of the
petition with Nelson's name on it and said that he had
asked Grubbe if Nelson was not a supervisor saying he
remembered that her job description would indicate that
she was a supervisor.
Presumably, Taylor was talking about a job descrip-
tion for an assistant chief technologist but there was no
job description ever prepared by City for such a job.
Lydia Nelson testified that she was never given such a
job description and Grubbe confirmed that he did not
recall ever showing any of the lab personnel a job de-
scription. Grubbe recalled that some job descriptions
were prepared at KD some years prior, and it is these
job descriptions that Respondent seems to say were the
job descriptions. There is nothing to indicate that such
descriptions were ever made available to any of the in-
cumbents at City nor that they were told of their exis-
tence.
Taylor stated he told Grubbe to inform Nelson that
she was a supervisor and was expected to perform a su-
pervisory role. According to Taylor, Grubbe mentioned
that on one occasion Nelson had refused to work on a
particular shift and Grubbe was concerned because they
were short of staff. Taylor said he told Grubbe that she
should do it because it was her job to do so and that, if
she refused to, it was grounds for dismissal. Grubbe
denied making such a statement to Taylor. Taylor also
stated that it was Grubbe who told him the names of
some of the people he thought were interested in the
Union and denied asking Grubbe for such information.
This testimony by Taylor is not a denial of all the spe-
cific statements Grubbe attributed to Taylor, but it ap-
pears to be an attempt to dance around them. Grubbe's
testimony was specific and direct on a number of points,
and I credit his testimony and discredit the quasi and
seemingly implicit denials in Taylor's testimony.
Lydia Nelson testified that she discussed her union ac-
tivities with Marvin Grubbe and with others in the labo-
ratory. Around the beginning of November, she told
Grubbe she was going to attend a union meeting and
Grubbe said that, if he were not a supervisor, he would
go too. Thereafter, she prepared a list of prounion
people and sent it to the Union.
With the background of Respondent's attempting to
establish a supervisory status for Lydia Nelson to cut her
away from union activities and either get rid of her or
establish her as a supervisor and with the further implicit
possibility of attempting to taint any union activities of
Respondent's employees by having a "supervisor" in-
volved in the initiation of the union campaign, Respon-
dent's attempts thereafter to establish her as a supervisor
through the use of such things as charts, directives, etc.,
is itself tainted and not reliable evidence.
The union campaign appeared to bog down after the
winter and, in effect, seemed to die out about the time
that Nelson was terminated. The lack of interest in the
union campaign was attributed by some employees to a
"sellout" by some lab employees. This suspicion may
have its genesis in the promotion of Roush, who had
been at KD and was an unaccredited technician with ap-
parently some limited experience and apparently no man-
agement training to Marvin Grubbe's position but retitled
as lab manager around May 2, 1979.
Somewhat confirming suspicions of Respondent's plans
is the undenied testimony of Suellyn Carroll, who
worked with Nelson as a hematology technician. She tes-
tified that, in November or December 1978, Dr. Jimenez
offered her the job as section head of hematology, the
job then held by Nelson in addition to her assistant chief
technologist's title. Jimenez told Carroll that Lydia
might step down from her job, Carroll told Jimenez she
did not want the job, and the matter was dropped.
Violet Brannon, a dietician's assistant working in the
kitchen area, first learned of the union activity when Ad-
ministrator Taylor, accompanied by Assistant Adminis-
trator Hyde, talked to some of the employees in the
kitchen about 7 a.m. in mid-January 1979. She testified
809
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Taylor read from a prepared statement why the hos-
pital did not feel the employees needed a union. Follow-
ing the speech the employees talked about it among
themselves. According to Brannon dieticians Sherry
Rosenberg and Laurie Watson, Assistant Manager Bal-
lard, and she were talking about the Union. Brannon told
Ballard she felt they needed a union and that she would
do what she could to bring it in. Ballard said if she had
anything to do with the Union, he would fire her. She
said he could not do that, that she knew her rights and if
he did fire her, she would take him to the Labor Board.
He told her not to get upset, that he was kidding. Short-
ly after that, Ballard, saying that if the union representa-
tives came into the department, illustrated what he
would do and kicked the door to show how he would
throw them out.
Several days later while in the cafeteria, someone from
the lab asked Brannon and some others if they were in-
terested in the Union and, when they replied they were,
gave them a map and directions to a union meeting.
Brannon brought the maps back to the kitchen and Bal-
lard asked where she got them, saying if they went to
the union meeting they would be fired. He then told
them not to discuss it and to put the maps away.
Shortly thereafter, Ballard told Brannon that he was a
supervisor and part of management and could not be a
part of the Union but wanted to know what went on and
that Brannon and others in the department could trust
him. Brannon went to the mid-January meeting and, on
the following day, Ballard asked who was at the meeting
and what was said. She told him she could not give him
the information, that it was confidential. She said that he
kept pestering her about it, stating that she did not trust
him.
Beverly Gonzales, a secretary who also worked in the
kitchen area, testified that Ballard tried to get some in-
formation from her as to who was at the union meeting
and what went on and she refused to give it to him,
saying that the information was confidential. Brannon's
testimony was basically corroborated by Gonzales.
Ballard testified that in the last part of 1978 he found
out about the union drive and went to Assistant Admin-
istrator Eckert and asked him about the Union and was
told by Eckert not to tell anyone that they would be
fired for participating in union activities. He said he vis-
ited Eckert on more than one occasion averaging about
once a week to talk about the Union and that Eckert
told him a number of things he could do and what he
could not do and that he should not question people
about the Union and could not search out things that
were going on in the Union.
Ballard placed Administrator Taylor's speech in De-
cember 1978 whereas all the others placed it in January
1979. In regard to the conversation after Taylor's speech,
Ballard said that Brannon and one other employee were
in the office talking and he told them not to talk about
the Union during worktime but on their own time. He
stated that several people asked him what to do about
the Union and he told them to do what they wanted and
that they could not be fired for joining the Union. He
denied telling Brannon that she could be fired for read-
ing union literature and further denied kicking the door
or making any statement about keeping the Union out. In
regard to the maps, he said he told Brannon not to read
union material on company time. He did admit saying
that he asked where the union meeting was going to be
and was thinking of joining the Union at one time and
later was told he could not be a member.
Ballard's admission about asking where the union
meeting was going to be contradicts what he said were
his instructions from Eckert.
Counsel for Respondent urged crediting Ballard on the
basis that Eckert admonished Ballard as to what he
could and could not do and that he would not have been
in the dark as to his supervisory rights and responsibil-
ities.
Respondent did not produce Eckert to testify and gave
no explanation as to why it did not do so. The only evi-
dence we have as to Eckert's tenure at Respondent is
testimony that Eckert did not start working at Respon-
dent until February 1979. Respondent did not contradict
that testimony in any way. Therefore, Ballard's testimo-
ny that he was consulting with Eckert in 1978 concern-
ing the Union would have been a physical impossibility.
I do not credit Ballard, and the defense that Ballard
would not have made these statements because of Eck-
ert's admonishments fails.
The other witnesses produced by Respondent in an at-
tempt to substantiate Ballard did not do so. They did not
remember statements but did not specifically deny that
they occurred. It would appear that if Ballard did talk to
Eckert it would have been after Eckert came to the hos-
pital in February as to what Ballard had done.
On the basis of the credible testimony and evidence
here, I conclude and find that Respondent, through Bal-
lard, violated Section 8(a)(1) of the Act by threatening to
discharge employees for engaging in union activities and
that he interrogated employees about their union activi-
ties and the union activities of others.
Administrator Taylor initiated a survey of supervisors
in the latter part of 1978. This was a written survey and
promised anonymity to all who participated in it. Lydia
Nelson participated in it and in regard to her supervisor,
Grubbe, downgraded him because she felt he had not
fought the cut in call-in pay and that he was lax in not
timely performing the employee anniversary appraisals,
with the result that the employees were not getting their
increases on time. Apparently a number of the other lab
employees responded to the survey in a similar manner.
Around mid-January 1979, Taylor showed Lydia
Nelson a list of recommended raises and asked if she had
participated in preparing it. She replied that she had not,
that she had seen it for about 5 minutes before Grubbe
took it to a meeting. Taylor asked again whether she was
saying that she had had nothii.g to do with making those
recommendations. She replied that she did not, that
Grubbe handled personnel matters and such things while
she handled the technical matters in the lab. She testified
that Taylor became angry and said he thought he knew
what he could do about it and left. In view of Taylor's
instructions to Grubbe to enmesh Nelson in supervisory
matters, this event seems significant especially in view of
Grubbe's abrupt resignation at Taylor's request.
810
BOARD OF TRUSTEES OF CITY HOSPITAL
On January 29, Grubbe was asked to resign his posi-
tion and did so. Taylor held a meeting with the laborato-
ry employees and announced that Grubbe had resigned.
Taylor said he told the employees that Lydia Nelson
would replace Grubbe as the acting chief of the depart-
ment. Taylor also testified that Nelson remained the
acting chief of the department until Roush was appointed
as the laboratory manager on May 2, 1979.
Pat Breen testified that Lydia Nelson was not at the
meeting and that Taylor said nothing about Nelson being
acting chief and did not mention her name, but to the
contrary Taylor said they were bringing in someone to
run the lab.
Donna O'Rourke testified that, on the day Grubbe re-
signed, Administrator Taylor and Assistant Administra-
tor Hyde had a meeting with the lab employees. Taylor
said that they had asked for Grubbe's resignation because
Grubbe had not gotten the anniversary evaluations made
on time and had not done some things that he should
have in his job. She testified that there was a good bit of
disagreement from the lab employees who said that Dr.
Jimenez should take a good share of the blame, that Re-
spondent was being too severe on Grubbe. She corrobo-
rated Breen that Taylor said Respondent had somebody
coming in from another HCA hospital that afternoon on
loan and that person would take over Grubbe's job to
make the transition smoother until they could get some-
one to fill Grubbe's position. She stated that Lydia Nel-
son's name was not mentioned and that Nelson was not
there that day.
I do not credit the testimony of Taylor and credit the
testimony of Breen and O'Rourke.
Taylor called Lydia Nelson to his office the following
day and asked her to take over Grubbe's duties until
they found a replacement. A short time later, Ray Vin-
cent from HCA was brought in for 2 weeks to help or-
ganize the lab and he taught her how to order supplies.
He took care of those duties for a couple of weeks while
teaching them to her.
Shortly after she took over Grubbe's duties, Taylor
called her in and gave her a list of things he wanted her
to do. One item was to make up an organizational chart
of the lab. She drew up an organizational chart showing
the various positions, listing an assistant chiefs job and a
chiefs job for the lab, showing responsibilities going
from them through the pathologists and then to adminis-
tration. Taylor changed the organizational chart, telling
her the lines of authority went direct to administration,
that the pathologists were merely there to assist them
and give advice and were not in the direct flow to ad-
ministration from the lab.
Despite Taylor's statement and his correction of the
laboratory organizational chart, the pathologists, Dr. Ji-
menez and Dr. Tamara, continued to exercise control
over lab policies, including employment policies, hiring,
firing, wage increases, etc., throughout Nelson's employ-
ment and the lab employees reported to the pathologists
and not directly to the hospital administration.
As part of her new duties, Nelson signed timecards
and prepared evaluations of employees. Shortly after
moving into this position, she talked to Dr. Jimenez and
got his agreement to go to a peer evaluation system.
Under this plan, when the evaluation sheets concerning
an individual were received in the lab sometime prior to
the individual's employment anniversary date, Nelson
would make xerox copies of the sheets and pass out a
copy to a person who worked directly with the individ-
ual to be evaluated, give a second copy to another lab
employee, and the third copy was given to the individ-
ual. When those copies were completed, Nelson would
summarize them on one form and give that, together
with the other analyses, to Dr. Jimenez for his approval
or disapproval of the evaluation, and the evaluation
changed or unchanged by Dr. Jimenez was sent to the
personnel department and administration for their ap-
proval. The evaluations were timely made during the
period that Nelson pursued these policies.
According to Nelson, she made the summaries during
the interim until Jeff Wagner was brought in from HCA
in March and took over the direction of the laboratory
and responsibility for all personnel matters and the evalu-
ations of employees. Respondent's exhibits refer to Jeff
Wagner as the chief technologist, contrary to Taylor's
testimony that Nelson was the acting chief until Roush
was appointed.
During February, Assistant Adminstrator Eckert and
Nelson had a discussion concerning the chiefs job, and
he asked if she were interested in it. She told him she
was not interested in it, that she supported the Union and
felt the employees needed one and felt that the people at
KD would resent her because they felt Grubbe's termi-
nation was unfair.
During the 2-week period that Vincent was there, he
asked if she were interested in the job of chief technolo-
gist and she told him that she was not because she was
too close to the employees.
Sometime around mid-April, she and Wagner had a
discussion concerning benefits. He told her that Respon-
dent realized they would have to start giving more bene-
fits and would probably go to paid retirements and might
pay for 2 hours guarantee on a call-in. She told him that
the employees felt that these were temporary measures
and did not completely trust the administration and, if
any more benefits were taken away, they could expect a
union drive to recommence.
In his testimony, Wagner attempted to portray Nelson
as being in complete charge of the laboratory but later
said she was his assistant. She testified that things under
Wagner were about the same as they had been under
Grubbe, that is that she spent 90 to 95 percent of her
time doing tech bench work, and the other part of her
duties were in getting the schedules filled out and per-
forming some interviews.
In regard to the interviews, the credible testimony was
that Dr. Jimenez would decide which of the lab employ-
ees would interview the applicant besides himself. Dr. Ji-
menez would interview the person and then have desig-
nated employees in the lab section where they had an
opening interview the applicant about school, back-
ground, and experience and give their impressions to
him. Dr. Jimenez would make the final decision on
whether to hire the person and at what pay rate, and the
recommendation would be made to the personnel depart-
8 1 1
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment. Interviewing of prospective employees thus was
not a supervisory work task but was a peer evaluation of
the possibilities of an applicant by fellow employees with
recommendations based on professional competence, re-
serving the decision to Dr. Jimenez.
In regard to the scheduling, originally Dr. Jimenez de-
termined the schedule for all employees. Then Nelson
was told to make up the lab schedule, presumably to
demonstrate her "supervisory" duties. With Dr. Jimenez'
permission, she had the employees fill out the work
schedule for the succeeding month on their preferences,
with the employees knowing that the lab had to be cov-
ered. She would check to be sure that all of the work
periods were covered and would usually cover the he-
matology section by taking the spaces left by the other
two "techs."
At the time Lydia Nelson was made the assistant chief
tech, she received no wage increase. Taylor said that she
got a partial increase when Respondent planned to pro-
mote her and got another part of the increase some 90
days after she had been in "sort" of a probationary
period. However, there is no testimony other than this
particular item relating to pay that Lydia Nelson was
ever told of a probationary basis for the assistant chief
tech job. The wage increase she got around the time she
started the job was a percentage increase that all em-
ployees got at the same time. The wage raise she re-
ceived in April, which was around 90 days after she
started the job, was her anniversary evaluation increase
and not an increase for the promotion. At the time of
Lydia Nelson's termination, she was making $6.47 per
hour while the wage scale of an ordinary technologist
went as high as $6.87 an hour. Thus Taylor's statements
were proven false by Respondent's records.
Both Administrator Taylor and Dr. Jimenez gave
sweeping descriptions of the supervisory authority they
said was conferred on Lydia Nelson. They said she
could hire or fire, recommended raises, and interview ap-
plicants for employment, and that her recommendations
were accepted. Taylor stated that she conducted all the
interviews for all lab employee applicants, which
amounted to around 20. The facts, however, are that she,
with others, interviewed about 5 of the 20 people that
were hired during that time, that she never hired, fired,
or made effective recommendations in those regards. The
recommendations that she made in regard to raises were
always independently reviewed by higher authority,
starting with Wagner and Jimenez. The recommenda-
tions on wage raises that she made shortly after Grubbe
resigned were recommendations that had been made by
Grubbe but not completed and she merely followed
through by signing the forms.
Respondent tried to portray Nelson as having full au-
thority when Grubbe was either on leave or merely 2
miles away at the KD division. However, since tele-
phones were available, nothing of any major import ever
happened without Grubbe being advised. When he was
on vacation, Grubbe left a telephone number where he
could be reached at all times if an emergency arose.
In any event, Dr. Jimenez exercised complete author-
ity over the lab before decisions concerning lab policy or
personnel were sent to the administrators. As Marvin
Grubbe testified, Dr. Jimenez' approval was necessary
for any raise and any decision of any import was made
by him. Decisions on procedures, tests, salaries, down to
the vacation schedule, all had Dr. Jimenez' approval.
Grubbe testified that Dr. Jimenez decided what salary to
start new employees and decided who was or who was
not hired despite any recommendations made by either
Grubbe or others below him.
In essence, Lydia Nelson was an experienced profes-
sional employee who acted similarly to a leadman in that
she had the ability and experience to help other profes-
sionals in their jobs. She worked within the area of her
professional knowledge in seeing that the laboratory ma-
chines operated properly and, if not, were repaired, and
setting up tests when necessary as laboratory technical
problems called for them. This would be done under the
supervision of Drs. Jimenez or Tamara.
Nelson did not want and did not exercise full supervi-
sory authority. She made some recommendations and
performed some ministerial functions, but what she did
was subject to independent review by supervisors who
were readily available. She was not the head of a large
department but only assisted in the technical matters in
running the department with a group of eight or nine
other professional technicians.
The various indicia Respondent points to as indicative
of her "supervisory" authority were not necessarily
known to her. Respondent never gave Nelson a job de-
scription for any position she occupied and, as her testi-
mony established, never told her she had these various
types of authority. It must be remembered that all Re-
spondent claims start from the premise that Respondent
was attempting to portray her as a supervisor for an un-
lawful purpose, in that Respondent wanted to remove
her from her position with the Union and taint any union
activity they started with her.
It is clear from an evaluation of the testimony of Dr.
Jimenez and Administrator Taylor, as contrasted with
that of the other witnesses presented by the General
Counsel, that Jiminez' and Taylor's testimony was
stretched and strained out of shape from the actual facts.
Basically I conclude and find that Lydia Nelson was a
professional employee who acted as a leadman in helping
get things done in the lab, without any true supervisory
status.
It may be arguable that for a short period in February,
after Vincent left and prior to Wagner's arrival, that she
may have been in the position of being the only person
with any authority in the lab, but, as Grubbe testified, he
never felt he was a true supervisor since Dr. Jimenez ex-
ercised authority over every aspect of the lab, and Lydia
Nelson felt the same. After Wagner came, he took over
the personnel supervisory matters and Nelson stayed
with the technical lab matters.
On May 2, 1979, the lab employees were informed that
John Roush, who was the assistant head of the KD lab,
was being made the overall lab manager and taking
Grubbe's former job. Between then and May 5, Nelson
told Roush she no longer wanted to be the assistant chief
technologist and would resign from that post because she
wanted to have more time to work on her masters
812
BOARD OF TRUSTEES OF CITY HOSPITAL
degree and wished to revert to being the section head of
hematology. On May 8, she wrote her resignation from
the assistant chief tech's job and gave copies of it to Dr.
Jimenez, Wagner, Roush, and Taylor. On May 9, Roush
and Wagner told Nelson her pay would be cut from the
$6.47 per hour she was receiving to $6.25 since she did
not have as many responsibilities. She protested a cut as
unfair, saying she had not received a pay raise for being
an assistant chief tech or a section head and should not
have anything taken away from her. Wagner and Roush
insisted that she had received a promotion raise and she
asked them to prove it.
Shortly thereafter with Shirley Eckles, Nelson went to
the personnel office where Wagner was looking at her
file. After he finished, she began reading through it and
was unable to find some of her evaluations and asked
Jeanette Stultz where they were, saying she did not see
them in the folder. Stultz showed her they were stapled
together, and Nelson found them.
Lab Technologist Shirley Eckles testified that, after
the Roush promotion, there were conversations concern-
ing Roush throughout the lab. Jeff Wagner asked her to
come into his office and talk about it. He asked what she
thought of the promotion, and she said she did not think
Roush was capable of handling the people or the job,
etc. On May 9, Eckles was working on "stat" work and
Nelson came over to help her. Wagner was present and
asked Nelson to go to his office and discuss the promo-
tion with him. She told Wagner it would be a waste of
time, she felt Roush was not competent for the job, she
had worked with Roush, and his school had not even
given him a recommendation for a job.
Nelson testified that she felt Roush was incompetent
because he had not had any management training and
she had worked with him for over a year and saw him
make careless laboratory decisions which affected peo-
ple's lives and that he used poor techniques and caused
problems that other technicians would be written up for,
but they were swept under the rug because of his posi-
tion. She did not know of anyone who did not think or
say that Roush was incompetent.
Wagner testified that on May 9 he wrote a letter to
Taylor stating that Nelson had said in his presence that
she felt Roush was incompetent and could not handle the
job of laboratory manager. He concluded, "I consider
this to be gross insubordination and would recommend
immediate disciplinary action."
Jeanette Stultz identified a May 10 letter she wrote to
Taylor wherein she stated that Wagner had requested a
personnel file on Lydia Nelson and that thereafter
Nelson came in and discussed information in the file rela-
tive to her pay rate. Nelson thereafter picked up the file
and, according to the letter, became "rather loud and
abusive" in regard to her evaluations. Stultz concluded
her letter stating that she felt Nelson conducted herself
in an unprofessional manner.
Stultz testified that the letter was accurate. In her tes-
timony, Stultz stated that Nelson was upset and flushed
and that she got loud and angry and had been in the per-
sonnel office prior to Wagner's arrival.
Eckles corroborated Nelson that Nelson did not raise
her voice, was not loud, angry, or abusive, and acted
properly during the time they were in the personnel
office. Nelson is a very mild-voiced person and, although
it is possible that she became angry after being told that
she had received raises that she did not receive and was
unable to find the evaluations immediately in her file, it
is clear that the terms used by Stultz are overblown. It is
also clear from the file that the testimony that she had
received raises because of her "promotion" are in error
since the raise forms show that there was a general raise
and a merit raise, and not a pay raise due to a promotion.
Wagner's apparent horror at hearing Nelson state that
Roush was incompetent is incredible testimony. Wagner
heard such comments from quite a number of people in
the lab. For instance, on the following day, Eckles over-
heard a heated conversation between Lab Tech Breen
and Wagner in which Breen said that Roush was incom-
petent and that, if Wagner wanted to, he could fire her.
Wagner thereafter asked Breen to step into the office.
On May 10, Lydia Nelson was called to Taylor's
office where Roush and Wagner were present. Taylor
accused her of being loud and foul in the personnel
office and she denied it, saying that she had not acted in
any such manner. Taylor then said she had gone around
the lab making derogatory remarks about Roush. She
denied that and said she had only spoken in the presence
of Wagner and Eckles when she said Roush was incom-
petent. Taylor then said it appeared she had a history of
not being able to get along with supervisory personnel,
that in looking at her job application he saw that she did
not get along with her acting supervisor at her previous
job in Washington County. He also said she had prob-
lems getting along with Marvin Grubbe and that they
had talked about it. She said they had not talked about it,
but had merely talked about employees not getting their
raises. Taylor said, "Well, now you're having problems
with Roush and I'm afraid we can't tolerate this type of
behavior." He handed her check to her and asked how
long it would take her to get out of there. She replied
only a couple of minutes and left.
Insofar as Nelson knew, she was the only person ever
to be fired in the 3 years that she worked there and she
had never been disciplined in any manner prior to that
time. She had received her periodic evaluation about a
month prior to her termination and Dr. Jimenez gave her
a good evaluation and she got the highest merit pay in-
crease of 8 percent that employees could receive. She re-
ceived no written reason for her termination, and it was
not until she attended an unemployment hearing that Re-
spondent stated she had been fired for insubordination.
Gordon Taylor testified that around May 2 he an-
nounced that Roush was being made the lab manager to
the lab employees. He testified that at the end of the
meeting Roush told him that Nelson said she was going
to quit. Taylor is the only source of such a statement
since it is clear from all the other testimony that Roush
was told by Lydia Nelson she was going to resign from
the assistant chiefs job, but not quit the hospital.
Taylor next testified that several days later Jeff
Wagner gave him some minor complaints and among
these was that Nelson had missed several days following
the May 2 meeting. This statement was rebutted by the
813
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fact that Nelson had gone home sick and was out sick
for 1 or 2 days. There is no issue about this, and it is an
example of how Taylor was trying to dramatize his testi-
mony and prejudice the case. Taylor also testified that
Wagner told him Nelson had told a number of employ-
ees in the hospital that Roush was incompetent. Wagner
testified that while in the blood bank area he heard
Lydia Nelson say she thought John Roush was incompe-
tent and he wrote up a statement concerning it and sent
it to Taylor. Thus Wagner's testimony flatly contradicts
that of "Taylor." Wagner also neglected to add that he
solicited the comment from Nelson regarding Roush's
appointment. Both Wagner and Taylor stated that Lydia
Nelson had refused to prepare a sample of a specimen to
be sent to one of the reference labs. There is no testimo-
ny concerning this as such, except that Wagner says
Nelson told the person that she no longer had that job
and was not responsible for it. Nelson denied that she
ever refused to work on a specimen. In any event, it is
clear that, refusal or not, it had nothing to do with Re-
spondent's decision to discharge Nelson.
Respondent takes the position that Nelson was fired
because she was insubordinate in describing a supervisor
as incompetent. Secondly, Respondent states that it
could fire Nelson because she was a supervisor and that
the union activities that Nelson engaged in had nothing
to do with her discharge. Taylor also stated that he had
not accepted her resignation from the acting chiefs job
and that therefore she was still a supervisor at the time
of her termination. Respondent adds that Nelson was un-
happy because she did not get the job, but this is a fig-
ment of Respondent's imagination since we have unden-
ied testimony that Nelson had told three separate Re-
spondent officials she had no interest in the job when
they approached her about it.
The facts are that her resignation had been accepted
by Roush and Wagner who, according to Taylor, had
supervisory authority to do so. Nelson had already been
told by them that she was going to receive a 22-cent
wage decrease for resigning that position. Taylor stated
that in this time of change it was necessary that Nelson
give them some time to effect the changeover and there-
fore he was not prepared to accept her resignation.
The fact is that neither of the positions Nelson had as
assistant chief tech nor hematology section supervisor
was filled by Respondent through the conclusion of the
hearing in this matter in March 1980. Respondent did not
state that the hematology section nor the lab as a whole
suffered without those positions being filled.
Viewing the evidence as a whole, it is clear that Re-
spondent was out to set Lydia Nelson up as a supervisor
and thus remove her from any union activity. The union
activity and her part in it was not a dead issue at the
time of her termination. Nelson had spoken to Assistant
Administrator Eckert a few weeks before her termination
and he told her Respondent was going to have to liberal-
ize its fringe benefits. She told him that curtailment or
cancellation of any fringe benefits would be sure to bring
the Union back. There is no question of Nelson's leading
position in the Union and Respondent's knowledge of it,
and it is also clear from the evidence as a whole that
Lydia Nelson was not a supervisor. Respondent's at-
tempts to make her a supervisor for this purpose did not
do so. It is clear also that despite Taylor's and Jimenez'
testimony Dr. Jimenez controlled the labs and their per-
sonnel. As Marvin Grubbe said, although he was termed
a supervisor, neither he nor Lydia Nelson ever felt they
were since everything was subject to Dr. Jimenez' con-
trol down to the scheduling of vacations.
I conclude and find that Lydia Nelson was not a su-
pervisor at the time of her discharge and that the posi-
tions of hematology section supervisor and assistant chief
tech as performed by her were not supervisory and that
her job performance was in the nature of a professional
employee acting as a lead person. I shall therefore order
her reinstatement, without any loss of pay, and provide
for the ordinary and full merit increases she would have
received absent her unlawful and discriminatory termina-
tion by Respondent.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent, set forth in section II,
above, and therein found to constitute unfair labor prac-
tices in violation of Section 8(a)(1) and (3) of the Act,
occurring in connection with Respondent's business op-
erations as set forth in section I, above, have a close, inti-
mate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
IV. THE REMEDY
Having found that Respondent engaged in the unfair
labor practices set forth above, I recommend that it
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Having found that Respondent discharged Lydia
Nelson on May 10, 1979, and refused to rehire her, I rec-
ommend that Respondent offer her immediate and full
reinstatement to her former position as hematology sec-
tion supervisor, without prejudice to her seniority or
other rights and privileges, and that Respondent make
her whole for any loss of pay she may have suffered by
reason of Respondent's discriminatory actions by pay-
ment to her of a sum equal to that which she would
have normally received as wages from the date of her
termination until Respondent offers her reinstatement,
less any net earnings in the interim. Backpay is to be
computed on a quarterly basis in the manner prescribed
in F. W. Woolworth Company, 90 NLRB 289 (1950), and
Florida Steel Corporation, 231 NLRB 651 (1977).2 I fur-
ther recommend that Respondent make available to the
Board, upon request, payroll and other records in order
to facilitate checking the amounts of backpay due and
other rights she might be entitled to receive. Further, her
gross backpay is to be based on the premise that she
would have received the top percentage pay due on an-
niversary evaluations, as well as any other interim raises.
2 See, generally, sis Plumbing & Heating Co., 138 NLRB 716 (1962)
g14
BOARD OF TRUSTEES OF CITY HOSPITAL.
CONCI.USIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Respondent violated Section 8(a)(3) and (1) of the
Act by its discriminatory termination of Lydia Nelson
because she engaged in union and concerted activities
with other employees for the purposes of mutual aid and
protection.
3. Respondent additionally violated Section 8(a)(1) of
the Act by: (a) unlawfully interrogating employees about
their union activities and sentiments and the union activi-
ties and sentiments of others; (b) threatening and coerc-
ing employees by warning they would be discharged for
engaging in union activities; and (c) maintaining an un-
lawful no-solicitation rule.
Upon the basis of the foregoing findings of fact and
conclusions of law, and the entire record in this case
considered as a whole, I hereby issue the following rec-
ommended:
ORDER
The Respondent, The Board of Trustees of City Hos-
pital, Inc., Martinsburg, West Virginia, its officers,
agents, successors, and assigns, shall:
i. Cease and desist from:
(a) Discriminatorily terminating employees because
they engaged in union and concerted activities with
other employees for their mutual aid and protection.
:' In the csent no cxceptions arc filed as provided h Sec 102 4 of he
Rules and Regulations of the National l.abor Relationl HBoard, the find
ings, conclusions, and recommended Order hereil shall as pros ided in
Sec. 102.48 of the Rules ad Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections hereto
shall he deemed waived fior all purposes
(b) Unlawfully interrogating employees about their
union sentiments and activities and the activities and sen-
timents of other employees.
(c) Threatening and coercing employees by warning
they would be discharged for engaging in union activi-
ties.
(d) Maintaining an unlawful no-solicitation rule.
(e) In the same or similar manner interfering with, re-
straining, or coercing employees in the exercise of rights
guaranteed under Section 7 of the Act.
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act:
(a) Reinstate and make Lydia Nelson whole for the
loss of pay she suffered by reason of Respondent's dis-
crimination against her in accordance with the recom-
mendations set forth in the section of this Decision enti-
tled "The Remedy."
(b) Post at its Martinsburg, West Virginia, location
copies of the attached notice marked "Appendix. " 4
Copies of said notice, on forms provided by the Regional
Director for Region 5, shall, after being duly signed by
an authorized representative of Respondent, be posted by
Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 5, in writ-
ing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
In th s cunt his ()rder is enforced h a J d grmet f 1l tild Stals
Court of Appeals, the words in the noltice rfeading "})o,led h ()rlder lof
the National l.ahor Relations Board" shall read "Posted ursu llIt t a
Judgmrnrt of the Untited States Court of Appeall, infltrcing an ()rder of
Ihe National I .bhor Relations Board
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