Carrier Foundation

National Labor Relations Board - Board Decisions

Apr 16, 1993

310 N.L.R.B. 1119 (N.L.R.B. 1993)

1119
310 NLRB No. 185
CARRIER FOUNDATION
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
Carrier Foundation and District 1199J, National
Union of Hospital and Health Care Employees,
AFSCME, AFL–CIO. Case 22–CA–17003
April 16, 1993
DECISION AND ORDER
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
On August 21, 1992, Administrative Law Judge
James F. Morton issued the attached decision. The Re-
spondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order.
The complaint alleges, inter alia, that the Respond-
ent violated Section 8(a)(3) and (1) of the Act, by giv-
ing employee Donna Freeby a negative job evaluation
for 1989 because of her union activities. Freeby, who
had begun working for the Respondent in September
1985 as a nursing assistant, became a unit secretary
under the supervision of Carolyn Schmitt, a nursing
care coordinator, in 1986. In 1988, Schmitt gave
Freeby a good evaluation.
In March 1989, Freeby initiated the Union’s orga-
nizing campaign, soliciting authorization cards among
the Respondent’s nonprofessional employees, and con-
tinued to take a leading, highly visible role in the cam-
paign through the December 18, 1989 election. There
is no dispute that the Respondent was aware of
Freeby’s union activities. Indeed, the judge found that
the Respondent independently violated Section 8(a)(1)
when: (1) Schmitt told Freeby that Schmitt knew what
she had been doing after work, and Director of Human
Resources Merk ordered Freeby to be off the hospital
grounds when her workday ended at 4:30 p.m.; (2)
Schmitt required Freeby to get Schmitt’s permission
before leaving her work area; (3) the Respondent’s su-
pervisors closely watched Freeby’s activities at work;
and (4) the Respondent included in Freeby’s 1989 ap-
praisal a statement to the effect that Freeby had been
counseled about adhering to the requirement to leave
the hospital premises when she finished work. There is
no room to doubt that the General Counsel made out
a prima facie case with respect to the elements of
knowledge and animus.
On December 29, 1989, 11 days after the election,
Schmitt wrote an annual performance appraisal for
Freeby that downgraded Freeby in substantial part, al-
legedly for tardiness. Schmitt’s 1988 evaluation, on
which Freeby received more than double the final
score of her 1989 evaluation, had reflected that Freeby
had a punctuality problem, but this did not result in a
significant deduction of points from her evaluation.
At trial, the General Counsel introduced in evidence
nursing department call-in records for 1988 and 1989
that showed Freeby was late 17 times in 1988 but only
8 times in 1989. The Respondent defended on the
basis of Schmitt’s testimony that, in doing Freeby’s
evaluations, Schmitt relied on her own record of
Freeby’s attendance, not the call-in records. According
to Schmitt, her records, kept in her own notebook,
showed that Freeby was late 15 times in 1989 and only
10 times in 1988. Schmitt’s notebook for 1989, which
contained Schmitt’s recording of the times Freeby was
late in 1989, was introduced by the Respondent to cor-
roborate Schmitt’s testimony. The Respondent did not,
however, introduce a similar notebook for 1988.
Schmitt also testified that Schmitt later checked
Freeby’s sign-in sheets for 1989 and discovered that
Freeby had been late 33 times, a number that she then
noted on Freeby’s 1989 evaluation. Schmitt did not
testify as to whether she examined the sign-in sheets
for 1988, and the Respondent did not introduce into
evidence the actual sign-in sheets either for 1989 or
1988.
The judge found a prima facie case and that Schmitt
downgraded Freeby in retaliation for Freeby’s activi-
ties on behalf of the Union. He noted that the Re-
spondent had not explained why Freeby had received
a higher grade in 1988 ‘‘when her lateness problem
was more severe’’ than in 1989. He thus implicitly re-
lied on Freeby’s testimony, as corroborated by the
nursing department call-in records, that Freeby had
been late more often in 1988 than in 1989.
The Respondent excepts in part on the basis that the
judge erred in relying on the nursing department call-
in records for 1988 and 1989 because those records re-
flect only the number of times Freeby called in to say
that she was going to be late and not the number of
times she was actually late. The Respondent argues
that there is thus no credible evidence to refute
Schmitt’s testimony concerning the number of times
Freeby was late in 1988 and 1989.
The Respondent, of course, in the face of the Gen-
eral Counsel’s prima facie case, has the burden of
proving its defense that Freeby’s punctuality deterio-
rated from 1988 to 1989, thus justifying her downgrad-
ing on her 1989 evaluation. To do so, the Respondent
must offer reliable evidence not only of Freeby’s at-
1120 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 While the Respondent contends the nursing department call-in
records presented an incomplete picture of Freeby’s latenesses, those
records reflect that Freeby called in 17 times in 1988, 7 more times
than the 10 times Schmitt testified she recorded for Freeby in 1988.
When allegedly incomplete records reflect more latenesses than the
allegedly accurate records Schmitt kept, this casts additional doubt
on the reliability of Schmitt’s testimony.
3 In these circumstances, and construing any ambiguity against the
wrongdoer, we agree with the judge that it is appropriate to use the
1988 evaluation for the purpose of determining backpay.
tendance record in 1989, but also of Freeby’s attend-
ance record in 1988. This the Respondent failed to do.
For a number of reasons, we find Schmitt’s testi-
mony, and the Respondent’s supporting documentation,
to be unreliable. First, while the Respondent intro-
duced Schmitt’s 1989 notebook record to corroborate
her testimony that Freeby was late 15 times in 1989,
no such notebook was introduced for 1988. The only
documentary evidence introduced for 1988 was the
summary notation by Schmitt on Freeby’s 1988 eval-
uation that she had been late 10 times. Had Schmitt’s
notebook record for 1988 been introduced, the General
Counsel would have had a fair opportunity to cross-ex-
amine Schmitt on the consistency of her recordkeeping
methodology as between 1988 and 1989, and the judge
would have had a detailed, documentary basis for eval-
uating the accuracy of Schmitt’s testimony concerning
the lateness figure for 1988.
Second, Schmitt’s testimony that the 1989 sign-in
sheets showed that Freeby was late 33 times in 1989
actually proves too much, because it calls into serious
question the reliability of Schmitt’s recorded 15
latenesses for Freeby in 1989. The Respondent, as the
party who maintained these records and offered testi-
mony concerning them, has the burden of explaining
this significant discrepancy. It has failed to do so.2
Third, while the Respondent contends that Schmitt’s
testimony about the 33 latenesses reflected on the 1989
sign-in sheets is further evidence of Freeby’s serious
lateness problem in 1989, we are not so persuaded.
The Respondent did not introduce into evidence the
sign-in sheets either for 1989 or 1988. Thus, we do not
know, for example, how late Freeby was on each of
these 33 occasions. Was it a minute—an arguably de
minimis amount—or an hour? More importantly, per-
haps, we do not have the 1988 sign-in sheets, or even
any testimony as to what they show with respect to the
number of times Freeby signed in late. In the absence
of the ‘‘benchmark’’ 1988 sign-in sheets, the 1989
sheets do not aid us in making the comparison between
1988 and 1989 that is critical to the disposition of this
issue.
We find that the Respondent has not carried its bur-
den of explaining discrepancies and conflicts in the
testimonial and documentary evidence it introduced in
its defense, and thus has not demonstrated that Freeby
was tardy more often in 1989 than in 1988. Accord-
ingly, we conclude, as did the judge, that the Respond-
ent has not established that it would have downgraded
Freeby even in the absence of her union activities.3
Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d
899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982),
approved in NLRB v. Transportation Management
Corp., 462 U.S. 393 (1983).
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Carrier Foundation, Belle
Meade, New Jersey, its officers, agents, successors,
and assigns, shall take the action set forth in the Order.
Dorthy C. Karlebach, Esq., for the General Counsel.
Donald A. Romano, Esq. (Carpenter, Bennett & Morrissey),
of Newark, New Jersey, for Carrier Foundation.
DECISION
STATEMENT OF THE CASE
JAMES F. MORTON, Administrative Law Judge. The com-
plaint alleges that Carrier Foundation (the Respondent), in
violation of Section 8(a)(1) of the National Labor Relations
Act (the Act), maintained an overly broad and vague rule
governing access to its property by off-duty employees and
applied that rule to an employee, Donna Freeby,
discriminatorily for union-related purposes. The complaint
further alleges that the Respondent, in violation of Section
8(a)(1) and (3) of the Act, gave Freeby a negative job eval-
uation in 1989, more closely scrutinized her daily work ac-
tivities and counseled her for violating its access rule—all
because of her activities on behalf of District 1199J, National
Union of Hospital and Health Care Employees, AFSCME,
AFL–CIO (the Union).
The Respondent, in its answer, denies that it violated the
Act and asserts that the allegations are barred by the provi-
sions of Section 10(b) of the Act.
I heard this case in Newark, New Jersey, on December 16
and 17, 1991, and on January 7, 1992. On the entire record,
including my observation of the demeanor of the witnesses,
and after considering the briefs filed by the General Counsel
and the Respondent, I make the following
1121CARRIER FOUNDATION
FINDINGS OF FACT
I. JURISDICTION—LABOR ORGANIZATION
The Respondent operates a psychiatric hospital in Belle
Meade, New Jersey, and meets the Board’s standard for as-
serting jurisdiction over it as a health care institution.
The Union is a labor organization as defined in Section
2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Access Rule
The Respondent has over 500 employees at its facility in
Belle Meade, New Jersey. It maintains the following rule,
entitled ‘‘Access to Hospital’’:
Off-duty employees are not permitted to enter or re-
main in Hospital buildings or anywhere on exterior
Hospital property where work or normal Hospital oper-
ations occur unless granted permission to visit with a
patient or participate in organized Hospital activities.
The General Counsel contends that this rule is vague and
so broad that it interferes with, restrains, and coerces the Re-
spondent’s employees as to their rights under Section 7 of
the Act. The Respondent contends that the rule is lawful as
it bars off-duty employees from access to areas where work
or normal hospital operations occur.
The Board has held that an employer may lawfully pro-
mulgate a rule to limit access to employees, who are not on
duty, solely to the interior of its facility and to other working
areas, so long as the rule is clearly disseminated to all em-
ployees, is nondiscriminatory as to employees engaged in
union activity, and does not bar entry to parking lots, gates,
and other outside nonworking areas unless justified by busi-
ness reasons. See Tri-County Medical Centers, 222 NLRB
1089 (1976). The Board has affirmed a finding that a rule,
substantially identical to the one quoted above, was con-
sistent with the guidelines established in Tri-County and thus
was valid. See Woodsview Rehabilitation Center, 265 NLRB
838, 843 (1982). Based on that holding, I find no merit in
General Counsel’s contention that the quoted rule is facially
invalid.
B. Alleged Discriminatory Limitations on Freeby’s use
of the Hospital Premises
The complaint alleges that the Respondent’s vice president
of human resources, Joseph Merk, and its nursing care coor-
dinator, Carolyn Schmitt, applied the no-access rule to an
employee, Donna Freeby, in order to discourage her activi-
ties on behalf of the Union in that the Respondent permitted
employees access for other than union purposes. The Re-
spondent asserts that this allegation should be dismissed as
the incident giving rise to it took place beyond the limitation
period set out in Section 10(b) of the Act. As to the merits,
the Respondent denies that it discriminated against Freeby.
The complaint also alleges, and the Respondent denies, that
Freeby’s daily work activities were more closely scrutinized
in order to discourage her from continuing her support of the
Union.
Freeby has worked for the Respondent since September
1985. She began as a nursing assistant. In 1986, she became
a unit secretary under the supervision of Carolyn Schmitt, a
nursing care coordinator. In 1988, Freeby received a good
evaluation from Schmitt and anticipated receiving a wage in-
crease commensurate with it. Instead, because of budgetary
considerations, her increase and those given employees simi-
larly rated were limited. In March 1989 Freeby initiated the
Union’s organizing effort among the Respondent’s non-
professional employees. All dates hereafter are for 1989 un-
less stated otherwise.
On October 5, Freeby, carrying two large envelopes con-
taining union authorization cards signed by employees,
walked alongside the Union’s representative at the front of
a ‘‘march’’ by employees to the Respondent’s administration
office. There, they were met by the Respondent’s labor coun-
sel who, after receiving from them the Union’s demand for
recognition, advised them to file a petition for an election.
A petition was filed. A hearing on that petition was held on
November 3. Freeby attended that hearing. The election pur-
suant to that petition was held on December 18. The Union
lost.
The General Counsel offered Freeby’s testimony, which
was uncontroverted, that in the early part of November, after
the Union’s recognition demand was made, she was talking
with various employees in the Respondent’s cafeteria about
campaign literature that was distributed to them by the Re-
spondent. She was there from about 4:30 to 8 p.m. A super-
visor, Betty Pereau, told her that she would like Freeby to
leave and Freeby left. That incident is not alleged as a viola-
tion of the Act. It occurred more than 6 months prior to May
16, 1990, the date on which the initial unfair labor practice
charge in this case was served on the Respondent.
On Friday, November 3, Freeby had occasion to go to
work areas other than her own in order to distribute copies
of a notice to employees which advised that they would be
visited by a consulting neurologist on Monday, November 6.
On the next day, November 7, the Respondent’s director of
nursing services, Anita Mozzai, issued a memorandum which
advised that the nursing office would be handling
‘‘consults.’’ In effect, Freeby was thereby relieved of the job
of distributing notices as to when consulting physicians
would be visiting the various offices. Any allegation that that
change in her work duties was violative of the Act would
also be time-barred by Section 10(b).
The incident discussed next is alleged as violative and the
Respondent has asserted as an affirmative defense that that
allegation is also time-barred.
Freeby testified that, in ‘‘mid-November,’’ her supervisor,
Schmitt, and the Respondent’s director of human resources,
Joseph Merk, came to her desk shortly before 4:30 p.m.
Freeby gave the following account of the discussion then.
Schmitt told her that they ‘‘know what [she has] been doing
after work and that it has got to stop.’’ When she asked what
they were referring to, Schmitt replied that she knows what
they are talking about. Schmitt then said that Freeby’s hours
are from 8:30 a.m. to 4:30 p.m. and that she is to be out
of there at 4:30 p.m. When Freeby commented that it usually
takes her fifteen minutes after quitting time of 4:30 p.m. be-
fore she is ready to leave, Merk told her ‘‘to be off the
grounds at 4:30 p.m.’’ Merk further stated that she was ‘‘not
to go off her unit [for whatever reason] without Schmitt’s
permission.’’ Freeby then stated that she guesses that she has
to have permission to go down the hall to mail a note-a-gram
1122 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(a note-a-gram is an interoffice form used to request time
off, for a vacation, or to apply for a posted job opening, or
whatever). Schmitt offered to mail it. When Freeby declined
the offer, Schmitt said that she would accompany her. Merk
said that would be fine and that Schmitt would go with her.
Merk left. Shortly after that, Freeby walked down the hall to
mail the note-a-gram. Schmitt ‘‘ran after’’ her. Schmitt told
her that she was making a fool of herself. Freeby replied that
Schmitt was the one who was making a fool of herself by
chasing her down the hall. Schmitt followed Freeby until she
got her coat and purse and left.
On the following day, according to Freeby, she received
a telephone call at exactly 4:30 p.m. from the director of
nursing services who told her then that she had dialed the
wrong number. At that same time, three of the Respondent’s
vice presidents were standing outside her office. They stayed
there while she gathered her belongings and left.
The Respondent contends that the incident referred to in
Freeby’s account occurred on November 9, a date more than
6 months prior to the service of the initial unfair labor prac-
tice charge on the Respondent. It bases this contention on the
testimony of Schmitt and a note-a-gram it placed in evi-
dence. The Respondent’s counsel asked Schmitt a series of
questions directed to the following point—as to whether the
note-a-gram was the only one for the month of November,
that she had found in a box or a file which was kept for each
employee in the nursing office. Schmitt’s reply to each of
those questions was in the affirmative. The note-a-gram in
evidence was signed by Freeby and was date-stamped,
‘‘1989 Nov—9 PM 4:36.’’
Freeby testified, in rebuttal, that she has filed dozens of
note-a-grams. Schmitt acknowledged, during her cross-exam-
ination, that she could not be certain that Freeby had filed
only one note-a-gram in November.
The Respondent has the burden of proving that the inci-
dent, alleged as violative, took place more than 6 months be-
fore the filing and service of the unfair labor practice charge.
Hi-Lo Foods, 247 NLRB 1079, 1087 (1980).
The evidence proffered by the Respondent to establish that
the discussion among Freeby, Schmitt and Merk took place
prior to the start of the 10(b) period is not persuasive. The
questions put to Schmitt were leading, her answers were sim-
ply affirmations, and it is unclear as to how note-a-grams are
processed or as to how orderly any recordkeeping system
thereon is. In weighing all the evidence, I find that the Re-
spondent has not met its burden of proof. In that regard, see
St. Mary’s Infant Home, 258 NLRB 1024 fn. 3 (1981). See
also Knapp Foods, supra.
The Respondent disputes Freeby’s account of the discus-
sion she had with Schmitt and Merk. Schmitt’s account of
that discussion is as follows. As the area where Freeby
worked was overcrowded due to renovations being made, she
told Freeby that she wanted her to leave when she finished
work at 4:30 p.m. She thinks she explained to Freeby then
that she had to leave because of the overcrowded conditions.
She does not remember the exact details but she knows that
she said that to Freeby. Freeby then said she had to mail a
note-a-gram. Freeby did not want to give it to her to mail.
In telling Freeby about leaving the work area, she is pretty
sure that she told her, as she had done on other occasions,
that she (Freeby) could take a minute or two to use the rest-
room. She (Schmitt) did not walk after Freeby down the 75-
to 100-foot walkway when Freeby left to mail the note-a-
gram. Schmitt answered in the negative when the Respond-
ent’s counsel asked her if Merk had told Freeby to be off
the grounds by 4:30 p.m. and when he asked if Freeby was
told that she had to get Schmitt’s permission before leaving
her work area.
Merk testified that Schmitt told Freeby that she would like
her to be out of her work area at 4:30 p.m. as her work
hours were from 8:30 a.m. to 4:30 p.m. and as the area was
too crowded. Merk answered in the negative in response to
questions as to whether Freeby was told to be out of the
building, or was told to be off the grounds, or had to get
Schmitt’s permission to leave her work area.
Schmitt, some time later, wrote on Freeby’s job perform-
ance evaluation form, that she had counseled Freeby ‘‘about
leaving the hospital premises in a timely manner when her
work day is completed.’’
I credit Freeby’s account. Schmitt’s reference in Freeby’s
job evaluation form to having to talk to her about leaving the
hospital premises supports Freeby’s account that she was told
to be off the grounds and does not support the account of
Schmitt or that of Merk that she was asked to leave her work
area. Further, the summary denials by Schmitt and Merk that
Freeby was told to get permission before leaving her work
area can be accorded little weight against the candid, detailed
testimony given by Freeby.
The record establishes, and I find, that Freeby actively so-
licited support for the Union among the Respondent’s em-
ployees, that the Respondent was fully aware of her union
activities and that Schmitt was alluding to those activities
when Merk told Freeby to be off the hospital grounds when
her workday ended. This restriction was unlawfully designed
to inhibit Freeby from promoting the interests of the Union
among the Respondent’s employees. See Hickory Creek
Nursing Home, 295 NLRB 1144, 1149 (1989). The require-
ment that Freeby must get Schmitt’s permission before leav-
ing her work area was motivated by the same unlawful con-
sideration. See Heads & Threads Co., 261 NLRB 800, 809
(1982). The close watch put on Freeby that day when
Schmitt trailed her down the hallway and the events of the
following day when Freeby was finishing her workday also
were unlawfully aimed at discouraging her from talking to
employees about the Union. See Peavey Co., 249 NLRB
853, 857–858 (1980).
The Respondent’s brief states that the General Counsel ap-
parently contends that another rule, a no-solicitation rule,
was being discriminatorily applied to Freeby. Its brief as-
serts, in effect, that the evidence does not support such a
contention. Those observations, along with the testimony ad-
duced by the General Counsel that employees were permitted
to sell cakes and to solicit for charitable causes while at the
hospital, obfuscate the clear issues—whether Freeby was told
to get off the grounds at 4:30 p.m., or was told to get
Schmitt’s permission if she wanted to leave her work area,
or was followed, and whether the Respondent was
discriminatorily motivated thereon. Those matters turn on
credibility, as discussed above.
C. Freeby’s Job Performance Evaluation
The complaint alleges that the Respondent gave Freeby a
negative job evaluation for 1989 because of her union activi-
ties.
1123CARRIER FOUNDATION
1 The Respondent, in its brief, states that Freeby’s testimony con-
firmed that she was late 33 times 1989. The testimony it refers to
obviously pertains to Freeby’s comprehension of what Schmitt had
told her when she ‘‘questioned the tardiness reflected on’’ the ap-
praisal. In that context, Freeby’s testimony is not an admission
against interest. If Freeby had so readily conceded that she was late
that many times in 1989, I likely would have received a stipulation
thereon and not conflicting accounts as proffered by the parties.
2 As background to show union animus, the General Counsel of-
fered testimony that, when Freeby began organizing for the Union
in 1989, the Respondent’s director of internal medicine was aware
of her activity. General Counsel contends that she was then given
several warnings about her tardiness, notwithstanding that, in her
prior years in the Respondent’s employ, she received excellent an-
nual appraisals despite a history of being late often. The Respondent
asserts that the warnings issued in 1989 were in response to an esca-
lating problem. It is unnecessary to decide the merits of these con-
flicting views.
3 Were it necessary to do so, I would further find that Schmitt’s
penalizing Freeby because Freeby challenged Schmitt’s statement to
the staff that the Union had threatened her was a direct admission
by the Respondent that Freeby was penalized because of her union
activities.
The evaluation was prepared by Schmitt on a form enti-
tled, annual performance appraisal, which refers to an attach-
ment, entitled ‘‘job description.’’ The appraisal form lists
factors on which an employee is to be rated—attendance,
punctuality, conforms to dress code, ability to work with oth-
ers, and willingness to consider suggestions. The job descrip-
tion form lists 22 ‘‘Duties and Responsibilities’’ to be rated
ranging from ‘‘Assists efficiently in the overall functioning
of unit by acting as receptionist and organizing and per-
forming clerical duties’’ to ‘‘Performs other duties willingly
as requested.’’
The 22 items on the job description form are the first mat-
ters to be evaluated. As to each, one of three marks is made
alongside. A plus mark is worth 3 points, a check mark is
worth 1.5 points, a minus mark is zero. The total is then
averaged by dividing it by 22. Freeby received, on the 1989
job description form, 11 plus marks, 6 checks, and 2 minus
marks—a total of 45 points, resulted in a 2.0 average. From
the job description average, deductions are made for each of
the factors on the annual performance appraisal form on
which an ‘‘x’’ is marked under the category, ‘‘Needs Im-
provement.’’ Of the six factors on Freeby’s 1989 appraisal,
three were checked as ‘‘Needs Improvement’’; deductions
therefor totaled 0.7. That amount was subtracted from her job
description rating of 2.0, giving her a final score of 1.3.
For 1988, her final score was 2.6. Of the then 20 items
on the 1988 job description form, she received 17 plus marks
and 3 checkmarks, giving her a 2.8 average. On her annual
appraisal form, only 0.2 was deducted because she had a
problem with punctuality.
The Respondent asserts that Freeby received a final score
in 1989, lower than that for 1988, because of her problem
with punctuality and because she had called Schmitt a liar
and a fool many times. On Freeby’s 1989 appraisal, Schmitt
noted that her own records show that Freeby was late 15
times in 1989 and that the more stringent records kept by the
payroll department reflected that Freeby actually was late 33
times1 whereas, according to Schmitt, Freeby had been late
only 10 times in 1988. The payroll records in evidence, how-
ever, confirm Freeby’s testimony that she was late less often
in 1989 than in 1988. Those records show that, in 1988, she
was late 17 times and only 8 times in 1989.2
Schmitt testified that she downgraded Freeby in 1989 be-
cause of her tardiness problem. Thus, for the item ‘‘working
cooperatively with staff and team members,’’ Freeby was
downgraded from her rating thereon in 1988, according to
Schmitt, because of her lateness problems in 1989. Schmitt’s
rationale was that, as Freeby was late often, she was not
working cooperatively. No explanation was proffered as to
why Freeby received a higher grade on that item in 1988,
when her lateness problem was more severe. Rather, Schmitt
asserts that she based her determination on the lateness
records she maintained herself, and not on the records of the
payroll department. I am unable to accept that rationale as
the annual performance appraisal form makes provision for
deducting points for punctuality problems. The assessment of
a lateness penalty on that form and then assessing many
other penalties on the job description form for the same late-
ness and on items which address other specific work consid-
erations strike me as needlessly duplicative. The proffered
explanation is implausible. It is even more so when, in 1988,
no such double penalties were assessed.
Schmitt offered a separate explanation for having down-
graded Freeby from 1988 as to several items on the job de-
scription form. She testified that she downgraded Freeby’s
appraisal because Freeby called her a liar shortly after she
had held a meeting with her staff at which she told the em-
ployees that the Union was making anonymous phone threats
to her at home. Schmitt also testified that Freeby called her
a fool and a liar about 25 times and that disclosed to her an
attitude on Freeby’s part that warranted downgrading certain
items on her job description form. She testified further that
she did not warn Freeby about such conduct.
Freeby, as noted above, had responded to Schmitt’s calling
her a fool (when Schmitt followed her while she was mailing
note-a-gram) by saying that Schmitt was the one who was
acting like a fool by following her. Freeby also testified that,
after the meeting in which Schmitt blamed the Union for
anonymous phone threats, she met with Schmitt privately to
tell her that she, Freeby, is in charge of the Union’s cam-
paign, that the Union did not telephone Schmitt and that she
(Freeby) doubts that Schmitt ever got any such telephone
calls. When Schmitt asked, according to Freeby, if Freeby
was calling her a liar, Freeby responded that she had not
called her a liar but that she (Freeby) did not believe that
Schmitt had received threatening phone calls. It is highly un-
likely that Freeby would have called Schmitt a liar and a fool
25 times. It is improbable that she did so with virtual impu-
nity until appraisal time. I do not credit Schmitt’s expla-
nations.
The downgrading in 1989, I find, was in retaliation for
Freeby’s concerted activities on behalf of the Union.3 I fur-
ther find, as alleged in the complaint, that the statement in
Freeby’s appraisal that she was counseled about adhering to
the requirement to leave the hospital premises when she fin-
ishes work was aimed at discouraging her union activities.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
1124 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
5 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
2. The Union is a labor organization defined in Section
2(5) of the Act.
3. The Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(1) of the Act by having
instructed its employee, Donna Freeby, in order to discour-
age her from supporting the Union, to leave its premises
upon completion of her workday and by the conduct de-
scribed in the next paragraph.
4. The Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(3) of the Act by having
given Donna Freeby a negative annual performance appraisal
for 1989, by requiring her to get her supervisor’s permission
to leave her work area, by having her supervisor follow her
about the premises and by counseling her to leave its prem-
ises—all in order to discourage her from supporting the
Union.
5. The unfair labor practices described above affect com-
merce within the meaning of Section 2(6) and (7) of the Act.
6. The Respondent did not engage in any other unfair
labor practice alleged in the complaint.
THE REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find it necessary to order the Re-
spondent to cease and desist therefrom and to take certain af-
firmative action necessary to effectuate the policies of the
Act.
The Respondent contends that no remedial order should
issue as to Donna Freeby’s having been unlawfully given a
negative evaluation for 1989, as it asserts that any monetary
remedy thereon would in effect be de minimis. The violation,
however, is not de minimis. See Regency at the Rodeway
Inn, 255 NLRB 961 (1981). Freeby’s evaluation for 1989
should correspond to that given her in 1988 insofar as the
marks on the job description items are concerned and the av-
erage thereof should be reduced by 0.2, the same amount al-
lotted in 1988 as to punctuality. If the resultant final score
calls for a higher wage increase than the one given her then,
she should be made whole thereon with interest in accord-
ance with New Horizons for the Retarded, 283 NLRB 1173
(1987).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended4
ORDER
The Respondent, Carrier Foundation, Belle Meade, New
Jersey, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Telling employees to leave its premises, in order to
discourage them from supporting District 1199J, National
Union of Hospital and Health Care Employees, AFSCME,
AFL–CIO (the Union).
(b) Giving employees negative annual performance ap-
praisals to discourage support for the Union.
(c) Requiring employees, in order to discourage support
for the Union, to get their supervisor’s permission to leave
their work area.
(d) Having employees followed about their work area to
discourage them from supporting the Union.
(e) Counseling employees that they are to leave the prem-
ises in order to discourage union activity.
(f) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Revise Donna Freeby’s 1989 annual performance ap-
praisal and make her whole, with interest, for any loss of pay
she suffered by reason of the unlawful appraisal given her
then, in accordance with the provisions of the remedy section
above.
(b) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amounts owing under the terms of this Order.
(c) Post at its Belle Meade, New Jersey, copies of the at-
tached notice marked ‘‘Appendix.’’5 Copies of the notice on
forms to be provided by the Regional Director for Region
22, after being signed by the Respondent’s authorized rep-
resentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places at these locations, including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other mate-
rial.
(d) Notify the Regional Director in writing within 20 days
from the date of this Order what steps have been taken to
comply.
IT IS ALSO ORDERED that the complaint be dismissed inso-
far as it alleges violations of the Act not specifically found.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post this notice and abide by its provisions.
WE WILL NOT tell our employees to leave our premises in
order to discourage them from supporting District 1199J, Na-
tional Union of Hospital and Health Care Employees,
AFSCME, AFL–CIO (the Union).
WE WILL NOT give employees negative annual perform-
ance appraisals to discourage support for the Union.
1125CARRIER FOUNDATION
WE WILL NOT require employees to get their supervisor’s
permission to leave their work area, when done to discourage
support for the Union.
WE WILL NOT have employees followed about their work
area to discourage them from supporting the Union.
WE WILL NOT counsel employees that they are to leave the
premises, when done to discourage union activity.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL revise Donna Freeby’s 1989 annual performance
appraisal, on a nondiscriminatory basis and make her whole,
with interest, for any wages lost as a result of our having
issued that appraisal to discourage her from supporting the
Union.
CARRIER FOUNDATION