Communication Workers of America

National Labor Relations Board - Board Decisions

Sep 30, 1998

326 N.L.R.B. 1451 (N.L.R.B. 1998)

COMMUNICATIONS WORKERS LOCAL 13000 1451
Communications Workers of America, Local 13000,
AFL–CIO and Bernadette Moyer. Case 4–CA–
25264
September 30, 1998
DECISION AND ORDER
BY MEMBERS FOX, HURTGEN, AND BRAME
On November 25, 1997, Administrative Law Judge
Nancy M. Sherman issued the attached decision. The
Respondent filed exceptions and a supporting brief. The
General Counsel filed an answering 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 briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Communications Workers of
America, Local 13000, AFL–CIO, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in the
Order.

Richard Heller, Esq., for the General Counsel.
Richard H. Markowitz, Esq., of Philadelphia, Pennyslvania, for
Respondent.
DECISION
STATEMENT OF THE CASE
NANCY M. SHERMAN, Administrative Law Judge. This case
was heard before me on May 14 and 15, 1997, in Philadelphia,
Pennsylvania, pursuant to a charge filed by Bernadette Moyer,
an individual, on September 16, 1996, and amended on Febru-
ary 13, 1997, against Respondent Communications Workers of
America, Local 13000, AFL–CIO; and a complaint issued on
February 14, 1997. The complaint alleges that Respondent
violated Section 8(a)(3) and (1) of the National Labor Relations
Act, as amended (the Act) by suspending the pay of Respon-
dent’s employee Moyer, and thereafter discharging her, because
of her activity on behalf of the Office and Professional Em-
ployees International Union, Local 14–32, AFL–CIO (the
OPEIU).

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
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.
2 In adopting the judge’s finding of antiunion animus on the part of
the Respondent, we rely solely on the statement by the Respondent’s
president to his fellow executives that no one was going to “embarrass”
the Respondent by joining a union and his identifying employee Moyer
as the “driving force” behind efforts to unionize the Respondent’s
employees. We do not rely on the statements by the Respondent’s
president that the employees supporting a union were wrong to think
that a union would automatically get them the same benefits that Re-
spondent’s members received and that they would have to “earn” those
benefits. See Carry Companies of Illinois, Inc. v. NLRB, 30 F.3d 922
(7th Cir. 1994); Holo-Krome v. NLRB, 907 F.2d 1343 (2d Cir. 1990).
On the basis of the entire record, including the demeanor of
the witnesses, and after due consideration of the briefs filed by
counsel for the General Counsel (the General Counsel) and
Respondent, I hereby make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a labor organization, is an unincorporated asso-
ciation with offices in Philadelphia, Pennsylvania. It is engaged
in representing employees in bargaining with employers with
respect to wages, hours, and other terms and conditions of em-
ployment. Respondent receives more than $2.4 million annually
from its parent organization, Communications Workers of
America, AFL–CIO, whose headquarters are in Washington,
D.C. These payments partly consist of 60 percent of dues paid
by Respondent’s members, which dues are transmitted by the
members’ employers, pursuant to checkoff authorizations, to
Respondent’s parent organization. I find that, as Respondent
admits, Respondent is engaged in commerce within the mean-
ing of the Act, and that assertion of jurisdiction over its opera-
tions will effectuate the policies of the Act.
II. THE STATUS OF THE OPEIU
The OPEIU is a labor organization within the meaning of the
Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Moyer’s Activity on Behalf of the OPEIU
As discussed in greater detail infra, at all relevant times until
her August 1996 discharge Moyer was in Respondent’s employ
as a secretary in Respondent’s Philadelphia, Pennsylvania of-
fices. About October 1995, Moyer was approached by Diane
Willer Gormley (the secretary to Patricia Maisano, Respon-
dent’s secretary-treasurer), with the idea of organizing the staff.
After Moyer and Gormley had obtained the support of a third
secretary, Maria Weber, Gormley telephoned the OPEIU. A
week or so later, these three secretaries met with an OPEIU
representative in a tavern around the corner from the employ-
ees’ work location. At this meeting, the employees expressed
their workplace concerns and signed “intent cards” for the
OPEIU, and the OPEIU representative suggested that the em-
ployees get in touch with the rest of Respondent’s secretaries
and arrange for a second, more inclusive meeting. This second
meeting, held in November 1995, was attended by secretaries
Moyer, Gormley, Gerry Sauer (the secretary to Joseph V. Clin-
ton, Respondent’s president), Cathy McDowell (the secretary to
East Region Vice President Edward Carr), and Patricia
Mitchell, but not Weber, who was on maternity leave.1 At this
meeting, employees relayed their concerns to the OPEIU repre-
sentative and he distributed more “intent” cards, but no addi-
tional employees signed these (see infra fn. 2). McDowell, who
did not sign an OPEIU card during the organizing drive which
began in 1995, told the others present that she had recently
signed cards to become an associate member of Respondent.
Because the secretaries who were campaigning for the OPEIU
1 Mitchell worked mostly for Carr, and Weber to some extent
worked for him.
326 NLRB No. 158
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1452
had told the solicited employees that the campaigners wanted to
send off authorization cards as a group, Moyer signed an addi-
tional OPEIU card after signing a card at the initial meeting.2
Perhaps for similar reasons, in about November or December
1995 Moyer induced Weber to sign a second OPEIU card. Em-
ployee discussions about attending an OPEIU meeting occurred
in the presence of Carr, Respondent’s vice president of the
Eastern Region.
Respondent’s offices were located on the second and third
floor of the building. The offices of President Clinton, Execu-
tive Vice President James Carter, and Secretary-Treasurer Mai-
sano were located on the third floor, where secretaries Sauer
and Gormley also worked. The offices of Regional Vice Presi-
dents Carr and Joseph J. Gallagher were located on the second
floor, where Moyer, Weber, McDowell, and Mitchell also
worked. The employee lunchroom, which was sometimes used
by management as well, was located on the second floor. After
the initial meeting with the OPEIU representative in about Oc-
tober 1995, all of the secretaries in the Philadelphia office be-
gan to discuss the OPEIU during lunch and breaks. At one
point, all of the secretaries who had not signed OPEIU cards
were eating their lunch in the conference room, and those who
signed OPEIU cards were eating in the lunchroom. At another
point, remarks by Sauer and then McDowell, to the effect that
the employees did not need a union and unionization would
cause them to lose pay and benefits, led Moyer to leave the
building during lunch. At some time in the fall of 1995,
McDowell, Sauer, and (perhaps) Mitchell unsuccessfully at-
tempted to induce Moyer and others to obtain associate mem-
berships in Respondent rather than to join the OPEIU. Through
the first few months of 1996, Moyer made sporadic efforts to
induce her fellow employees to join the OPEIU.3 However, so
far as the record shows, a majority of Respondent’s secretaries
never did sign authorization cards. Because of the diverse opin-
ions among the employees regarding the desirability of OPEIU
representation, interemployee tensions arose which had not
been there before, and the anti-OPEIU employees were shun-
ning the pro-OPEIU employees until at least March 1996.4

2 It is clear from the record that she signed a card for the OPEIU dur-
ing the October meeting, and another card several weeks later. The
record contains a card which she signed on December 4. It is unclear
from the record whether in November 1995 she signed a card in addi-
tion to her October and December cards, or whether her testimony
erroneously attached a November date to the card dated December 4,
1995. The matter is immaterial.
3 This finding is based on Moyer’s testimony. However, at one point
she described a mid to late November conversation with Independent
Region Vice President Gallagher about organizing as having occurred
“very late in the game. . . . Much after intent cards were signed and
things like that.”
4 This finding is based upon the testimony of Weber (who, however,
was on maternity leave between January 20, 1996, and late February
1996, and also between early October and mid-December 1995) and
Moyer. For demeanor reasons, to the extent inconsistent with these
findings, I do not credit McDowell’s testimony that she did not remem-
ber any pro-OPEIU statements by Moyer other than those she made
when inviting employees to attend the second OPEIU meeting,
McDowell’s testimony that after this meeting there was no discussion
among the secretaries about the OPEIU at any time, or her testimony
that during the first 6 months of 1996 the “usual” social relationships
existed among the secretaries, including Moyer.
B. The Alleged Reactions of Respondent’s President and East
Region Vice President to the OPEIU’s Organizing Campaign
As previously noted, employee Sauer spoke against the
OPEIU; so far as the record shows, she never signed an “intent
card.” Clinton, Respondent’s president, testified without con-
tradiction or corroboration to the following effect: On a date he
was not asked to give, Sauer, who was his secretary, said that
“they were looking at joining the union,” and asked for his
thoughts on it. Clinton said that it was a good idea, but that the
matter was up to her and the “employee body.”
A meeting of Respondent’s executive board, held on No-
vember 8, 1995, was attended by Clinton, Gallagher, Carr,
Maisano, and Carter. As discussed in detail infra, at all relevant
times until May 1996, Gallagher was Moyer’s immediate su-
pervisor. Gallagher entered the room before the meeting was
called to order.5 When he came in, he heard Clinton, Carr, and
perhaps others engaging in a conversation from which Galla-
gher inferred that the secretaries were talking about trying to
organize a union. Gallagher asked when this had started. Clin-
ton said, “Yeah, like you don’t know, your secretary is the driv-
ing force.” Gallagher said that this was the first he had heard of
it, that he knew nothing about it. Clinton said, “[Y]ou know,
this is another time that they want to try and have a Union6 . . .
these people should realize that they think that because we treat
them under the Bell contract that they have the same working
conditions and all under the Bell contract [see infra]. They
think they are automatically going to get these [. They] are not.
You know, we have bargained this contract for years and the
Union is not just going to walk in here and get this contract for
them.”
After the meeting had been called to order, and various sub-
jects had been discussed, the subject of Christmas bonuses for
Respondent’s employees came up. Clinton moved that “our
secretaries” receive a $150 Christmas bonus, and Gallagher
seconded that motion. Carr went into what Gallagher testimoni-
ally described as “a tirade directed at me.” Carr said that in 35
years of combined service for Bell and for Respondent, he had
never had a Christmas bonus or a Christmas party. Carr said
that “These people are constantly complaining that they want to
go to more than one party . . . and if they think that this kind of
stuff is going to happen when the Union comes in here, it’s not
. . . we’re not going to tolerate this. We also are not going to
tolerate people being out sick on Mondays and Fridays, people
talking on the phone all day, people leaving early . . . they’re
going to have to earn what we have with the Bell contract.
They’re just not going to get that.” Gallagher said, “[W]hy are
you talking to me? I’m not trying to organize a union.” Carr
said, “. . . we know that your secretary is behind it and she is
the driving force.” A little later, Carter asked Gallagher where
he started when he was bargaining with a newly organized
company about a new contract. During the subsequent discus-
sions, Gallagher asked, “[W]hy wouldn’t we want [the secretar-
ies] to join a Union? . . . it would be easier for us to deal with
problems that come up in there if we had a Union.” At this
point, Clinton said that nobody was going to “embarrass” the
5 This finding is based on Clinton’s testimony. Gallagher testified
that he did not remember whether the call to order issued before or after
the conversation described in the text.
6 Unionization campaigns had been conducted among Respondent’s
clerical employees in 1988 and in 1990 or 1991. At least during the
1988 campaign, Moyer had refused to sign an authorization card.
COMMUNICATIONS WORKERS LOCAL 13000 1453
executive board by trying to join a union. Then, he reiterated
that “if these people think that they are going to get the Bell
contract it’s just not going to happen.”7
My findings as to Clinton’s remarks on this occasion are
based on Gallagher’s testimony. Clinton testified that during
this November 1995 meeting, one member of the executive
board, whom Clinton was not asked to identify, said that union
representation of the secretaries would be good, and that the
“general discussion was that nobody had a problem with it, if
that’s what they wanted.” As to what happened just before and
during this November 1995 meeting, Clinton denied, in effect,
that Gallagher initially claimed ignorance of the secretaries’
organizational activity; denied telling Gallagher that his secre-
tary was the driving force behind the organizing drive; denied
saying that no one should embarrass the executive board by
trying to join a union; denied saying that the secretaries would
not get a Bell contract; and denied saying that Respondent
wanted to have a union under the Bell contract, not the same
working conditions as the Bell contract. (There is no testimony
attributing this last remark to Clinton during this meeting.)
Clinton testified that he did not recall that Gallagher asked
when the organizing had started. Clinton further testified that
he did not hear Carter tell Gallagher that his secretary was be-
hind the organizing drive; Gallagher’s testimony attributed this
remark to Carr, not Carter. Carter was called by Respondent as
a witness, and at that time was still on Respondent’s executive
board, but he was not asked about these discussions. Maisano
and Carr were not called as witnesses, although at the time of
the hearing they were still on Respondent’s executive board and
although Gallagher testified that Carr was already in the room
when Gallagher entered. I infer that if asked about these discus-
sions, Carter, Maisano, and Carr would not have corroborated
Clinton’s version.8 In view of this absence of corroboration,
because it is uncontradicted that Clinton made somewhat simi-
lar remarks during the February 1996 executive-board meeting
(see infra fns. 11 and 13 and attached text), and after consider-
ing the witnesses’ demeanor, I credit Gallagher notwithstanding
his admission that his prehearing affidavit mistakenly attached
these discussions to the December 1995 executive-board meet-
ing rather than to the November 1995 meeting,9 and nowith-
standing the fact that when he testified, he was competing with
Clinton for the office of Respondent’s president (see infra part
III,H) and was having a dispute with Respondent about his
salary (see infra fn. 12).
After this meeting, Gallagher called Moyer into his office.
He told her that he had “kind of gotten ambushed” at this meet-

7 Because the answer does not deny the complaint allegation that
Carr and Clinton were Respondent’s supervisors and agents at all mate-
rial times, I find that they occupied that status. See Sec. 102.20 of the
Board’s Rules and Regulations.
8 See Ready Mixed Concrete Co. v. NLRB, 81 F.3d 1546, 1552 (10th
Cir. 1996); International Automated Machines, 285 NLRB 1122
(1987), enfd. 861 F.2d 720 (6th Cir. 1988); Champion Rivet Co., 314
NLRB 1097, 1098 fn. 8 (1994).
9 Gallagher has been without access to his records because Respon-
dent has locked him out of his old office (see infra Part III H). When
preparing his prehearing affidavit, he recalled that the discussion about
the organizing campaign occurred during the same meeting as the dis-
cussion about Christmas bonuses, which bonus discussion he had
“automatically put” as occurring during the December 14, 1995 meet-
ing. About two weeks before the May 1997 hearing, he advised the
General Counsel about Gallagher’s error as to the date.
ing, and asked her whether an organizing drive was going on.
She reluctantly said that there was.10
The February 14–15, 1996, executive-board meeting was at-
tended by the entire executive board, including Gallagher, Clin-
ton, Carter, Maisano, and Carr. Among the subjects discussed
at this meeting was paid maternity leave for employee Weber,
who had been in the hospital for a week before the November
2, 1995, birth of her premature baby son by Caesarean section
and who, after returning to work about December 11, 1995, had
taken 6 more weeks of leave begining when her baby came
home from the hospital on January 20, 1996, at which time he
was still on oxygen. Under Respondent’s then collec-
tive-bargaining agreement with Bell Atlantic, Bell Atlantic’s
employees were at least ordinarily entitled to 6 weeks’ paid
maternity leave. During the executive board meeting, Gallagher
said that he had been told by Bell Atlantic and AT&T manage-
ment that if Weber were employed by them under their respec-
tive bargaining agreements with Respondent, in view of the
unusual circumstances presented they would start her 6 weeks’
paid maternity leave when the baby came home from the hospi-
tal, and that Gallagher thought that Respondent’s employees
were paid and treated as if they were covered by the Bell con-
tract. Gallagher moved that she receive 6 weeks’ paid maternity
leave beginning from her baby’s leaving the hospital—a mo-
tion which, if approved, would have given her 12 weeks’ paid
leave (not charged to vacation pay) beginning with the date, a
week before giving birth, when she first entered the hospital.
Nobody seconded the motion. Clinton said, “. . . here they want
a Union and these are the kind of things, you know, we’re good
to these people. We treat these people fairly, we pay them a
good wage and now they want what the Bell contract says . . . if
these people [think] that they are going to get a Union they are
not going to get these kinds of benefits.”11 Weber received 6
weeks’ paid maternity leave, beginning with her hospitaliza-
tion, and 3 weeks’ vacation pay, beginning with when her baby
left the hospital; the rest of her absence was unpaid.
Prior to this meeting, in response to a request by secretary
Gormley that Respondent reimburse her for the tuition she had
paid to a local community college for a mathematics course,
Gallagher had told her that he could not remember that Re-
spondent had ever reimbursed any employee for such tuition,
but because employees received reimbursement under the Bell
contract, he thought she was entitled to it also. At the December
1995 executive-board meeting, Gallagher proposed such reim-
bursement. After some discussion, the board agreed that she
would be paid after a tuition reimbursement plan was estab-
lished.12 Shortly after this discussion, Clinton remarked,
10 My findings in this paragraph are based on Gallagher’s testimony.
Because I believe he had a better recollection than she as to this meet-
ing, I accept his testimony that it was initiated by him, notwithstanding
her testimony that “I believe” she initiated it.
11 My findings in this sentence are based on Gallagher’s uncontra-
dicted testimony.
12 On an undisclosed subsequent date, Gallagher was given the as-
signment, which he never carried out, of preparing a tuition-
reimbursement program for Respondent’s employees. After Respon-
dent’s convention during the last week in May 1996, during which
Gallagher’s position was abolished although he remained an employee
of Respondent until the November 1996 end of his term (see infra part
III,C), he went on a two-week vacation for which he was paid by
AT&T—inferentially, his employer before he assumed full-time paid
union office. After his return from vacation, he attended grievance
meetings with AT&T (for which AT&T paid him), and worked in
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1454
“[T]hey want a Union, they are not automatically going to get
these kinds of things. These are kinds of things that they have
to work for.”13 Gormley received tuition reimbursement (total-
ling about $843) in May and July 1996 and January 1997.
As previously noted, both Gormley and Weber signed cards
for the OPEIU in the fall of 1995. The record fails to show
whether Respondent knew that they had done so.
C. Respondent’s May 1996 Convention;
the Subsequent Reorganization

During the week of May 22, 1996, Respondent’s convention
amended Respondent’s constitution to abolish the Independent
Region (by far the smallest of the three), to transfer the member
employees from that Region to BOC East (renamed the Eastern
Region) or BOC West (renamed the Western Region), and to
abolish the office of vice president of the independent Region,
then held by Gallagher. No contention is made that this reor-
At all relevant times until May 1996, Respondent was ad-
ministratively divided into three regions, each headed by a vice
president—the BOC (an acronym for the Bell Operating Com-
pany) East, the BOC West, and the Independent. During the
existence of the Independent Region, the vice president for that
region was Gallagher. At all relevant times between her Febru-
ary 1987 hire by Respondent and May 28, 1996, Moyer worked
in Respondent’s Philadelphia office as Gallagher’s administra-
tive assistant and secretary. During this period, her duties in-
cluded receiving grievance paperwork, making sure that it was
in order and properly signed, typing the cover letter, and mak-
ing sure that the grievance was processed in timely fashion and
got to the next level within the time limits; handling member-
ship records and mailings to the membership; getting informa-
tion out to the bulletin boards in members’ various work loca-
tions; making travel and meeting arrangements for Gallagher
and his unit presidents; filing and archiving records; tracking
vouchers; answering and forwarding telephone calls, including
calls from members to unit presidents who were absent from
their offices; helping Gallagher and the unit presidents in coor-
dinating grievance and major contract settlements; organizing
and disbursing settlement checks; mailings to the membership
regarding membership meetings; setting up such meetings;
setting up Gallagher’s regional council meetings; regular copy-
ing and mailing; giving out information (including picket
schedules) to members during strikes or threatened strikes;
performing administrative paperwork during contract negotia-
tions; arranging meetings between Gallagher and employer
representatives; handling problems which the staff had with
their computers and with other machines and systems; answer-
ing inquiries from the membership; and making personal phone
calls for Gallagher. Almost all of her work was performed for
the Independent Region.

Respondent’s office. Gallagher was directed by Clinton to report to the
union office for assignment in July 1996, but did not do so. Gallagher
was paid by Respondent for April 1996 and for July or August 1996,
but not for any other periods after April 1996. He was locked out of his
office on a date not clear in the record, but inferentially no later than
the expiration of his term of office as vice president in November 1996.
At the time of the hearing in May 1997, a dispute was pending between
him and Respondent about how much (if any) remaining salary he was
entitled to receive from the Union, at least partly because of the pay-
ments made to him by AT&T. Such events have been taken into ac-
count in assessing his credibility as a witness.
13 My findings as to these remarks by Clinton are based on Galla-
gher’s uncontradicted testimony.
ganization was motivated by unlawful considerations. In March
1996, when the rules committee was setting up the agenda for
the convention, unit 27 president, Frank LaVanga, who was
chairman of that committee and was aware of the OPEIU’s
organizing drive among Respondent’s secretaries, sought to
include on the agenda the unionization of the staff, but this
proposal was rejected by committee members Mike Wharton
and Al Rupert. Clinton was an ex officio member of this com-
mittee, and was present during the vote on LaVanga’s proposal,
but did not vote thereon. Thereafter, during the convention
itself, LaVanga stated from the convention floor that the execu-
tive board should encourage unionization of its employees, and
that it did not “look good” for Respondent to have a non-union
staff. In response, Clinton stated that the executive board had
never had any objections to the staff’s “becoming Union.
That’s their choice . . . that’s the way we want it. . . . We have
no right as employers to interfere in their self-determination on
whether or not they become Union or stay nonunion. That’s up
to them. If there’s any implication that this Executive Board has
discouraged or tried to work against our staff becoming Union,
. . . I don’t want this body to be left with that impression. That’s
absolutely not true.”
At the hearing before me, Clinton testified that the executive
board would do nothing to obstruct its staff’s joining a union;
that if a majority signed authorization cards, the board would
“give them some recognition” and negotiate a contract; and that
he would prefer that Respondent’s staff be in a union.
D. Moyer’s Absence on Claim of Health Reasons
1. Background
At all times relevant here, Moyer’s brother, Daniel Sickman,
was a unit president within Respondent’s organization. On a
date prior to November 8, 1995, Gallagher persuaded Respon-
dent’s executive board that in order to avoid or counteract the
effects of perceived “skullduggery” within a national group
which was called “PT Phone Home” and (inferentially) was
somehow associated with Respondent’s parent affiliate and/or
sister locals, Respondent should engage on the local level in
certain activities—namely, permitting disabled veterans to call
their homes from Veterans’ Administration hospitals—which
PT Phone Home had ostensibly set out to do. This local effort
was headed by Gallagher and Sickman, and Moyer performed
all the clerical support work with Respondent’s computers,
space, and time. After developing the suspicion that Phone
Home was not really seeking its announced purpose, Respon-
dent’s executive board stated that Phone Home could continue
its operations if three members of Respondent’s executive
board were put on Phone Home’s executive board. Although
Gallagher agreed to this arrangement, Phone Home never car-
ried it out, and eventually, Respondent withdrew its financial
support. Thereafter, Clinton instructed Moyer to stop participat-
ing in Phone Home and to clear its records from Respondent’s
computer. Clinton testified to the suspicion that she delayed in
complying with these instructions. Moreover, in mid-July 1996
she attended (as a spectator) a golf tournament for which she
had arranged in connection with Phone Home. Nevertheless,
for demeanor reasons I credit Moyer’s testimony that she
stopped performing work on the Phone Home project when she
was so instructed in early 1996.
COMMUNICATIONS WORKERS LOCAL 13000 1455
2. May 28, 1996, changes in Moyer’s job duties
On May 28, 1996, the next work day following the conven-
tion, Clinton, Carter, and Maisano met with Weber (who had
been working part of her work week under Gallagher’s supervi-
sion) and Moyer. Clinton said that the Independent Region had
been abolished, and that a lot of the work which Moyer and
Weber had been performing in Respondent’s Philadelphia of-
fice would eventually be moved to Respondent’s Pittsburgh
office. He went on to say that initially during the transition
period, Moyer and Weber would be doing the same work as
before, under Carter’s direct supervision. Eventually, Clinton
said, Moyer and Weber would be assimilated into the Eastern
Region and would probably be directly supervised by Carr; and
McDowell, Carr’s secretary, would be instructed to give them
work in connection with that region “as time ensued.” Clinton
said that all the secretaries would have a job and they should
not worry about that; and that Weber and Moyer might be ex-
pected to take on additional responsibility. Clinton said that he
recognized this was a sensitive period for Weber and Moyer;
that he recognized the “long loyalty” Moyer had for Gallagher
and the two secretaries’ allegiance to Gallagher and Sickman;
that Clinton knew Sickman was kin to Moyer; but that this
allegiance to Gallagher and Sickman had to stop now. Clinton
further said that Gallagher was no longer an executive board
member; that Moyer and Weber were not to work for him any
longer unless they were so instructed by the executive board;
that Moyer was not to work for Phone Home; and that the sec-
retaries’ loyalty was to the committee and the membership, and
Respondent as an institution. During this meeting, nothing was
said, at least in terms, about organizing or about a union. Nei-
ther Moyer nor Weber appeared to be upset.14 After the meeting
broke up, Carter told Weber and Moyer that he expected them
to continue to perform the same work that they had previously
performed.
On an undisclosed date after the dissolution of the Independ-
ent Region, Carter told McDowell (who generally assigned
work on the second floor, where Weber and Moyer worked)
that Weber (who had spent half her time working for the Inde-
pendent Region and half for the Eastern Region) and Moyer
would be doing work for the Regions left in Philadelphia the
same work which they had been doing, and would be working
with McDowell and Mitchell, both of whom had been doing
work for the Eastern Region.15
3. Events during and after the transition
During the month of June 1996, Moyer was not assigned any
work. She continued to handle members’ telephoned inquiries
(whose volume was a little higher than usual, but most of which
she could not answer), continued to answer the telephone, reor-
ganized her file system, archived some old files, and performed
one “mobilization” (a special effort to keep members informed
of strike and other significant activity). On four or five occa-

14 My findings as to this meeting are based on a composite of credi-
ble parts of the testimony of Moyer, Carter, and Clinton. The General
Counsel’s witness Weber was still in Respondent’s employ when she
testified, and was not asked about this conversation. I accept Clinton’s
and Carter’s denial of Moyer’s testimony that Clinton said in terms that
there was a “perception out there” that Moyer and Weber were disloyal
and not to be trusted.
15 My findings as to this conversation are based on McDowell’s tes-
timony. For demeanor reasons, I do not credit what at least arguably
amounts to a denial by Carter.
sions during this period, she suggested to Carter that she per-
form various tasks which she believed might help smooth the
transition; on each such occasion, he said that he would talk to
Clinton and then get back to her, but she was never asked to
perform any of the tasks which she had offered to perform.
From the time of her hire in February 1987 until June 1996,
Moyer had enjoyed her job immensely. She had enjoyed her
responsibilities and everything she did, and had felt strongly
about her job and about the services that she provided to the
membership. She had been raised to do the best that she could
at her job, and to believe that if she did not like her job, she
should get another which she did enjoy and obtain satisfaction
from. Moyer credibly testified to the belief that during June
1996, “hardly anybody at work spoke to me except for my
friends.16 I had no interaction . . . with anyone on the executive
board with the exception of some small, short conversations
with Mr. Carter. I really had nothing to do but busy work . . .
I’m just not someone who can sit there and not do anything.
I’m not someone who can accept payment from somebody for
doing nothing. I felt at that point they were hanging me out to
dry and . . . they severed me away from everybody and I was
being belittled and I was being discriminated against and I was
being made to feel like nothing.” She credibly testified that
during June 1996 she did not know whether Respondent was
trying to force her out or fire her; that she lost 10 pounds and
got to the point where she was able to fall asleep (if at all) only
an hour or so before she had to get up; and that she and her
husband “were having a lot of argumentative problems because
he knew what was happening to [her] at work and he didn’t
want [her] to have to go through that.” She began having trou-
ble getting up early enough to arrive at her office on time, and
during the last week in June was getting to work 15 or 20 min-
utes late. Weber credibly testified that during the month after
Moyer had been advised of the changes in her duties, she
looked depressed and sad, and wept from time to time.17
On June 27, Moyer, who was visibly upset, came to
McDowell and said that Moyer thought Respondent was trying
to get rid of her. McDowell said that she believed this was not
true, that there was plenty of work there for everybody to do.
Moyer asked McDowell whether she had complained to the
executive board about Moyer’s being late. McDowell said that
she would never complain about such conduct to an executive
board member, but that some of the secretaries did get upset
when other secretaries came in late, left early, took excessively
long lunch periods, and were on the telephone all day. Moyer
said that if she was going to be forced into a position where she
had no more responsibilities, she was not going to sit in the
“break room” and stuff envelopes all day. McDowell said that
stuffing envelopes was part of all the secretaries’ jobs, but that
was not the only thing Moyer was going to do.
On Friday, June 28, Moyer felt that she was at the end of her
rope, that she had tried as hard as she could to go to work, and
16 McDowell testified, in effect, that this was not true. Moreover, in
May or June 1996, Moyer attended as a volunteer spectator a golf tour-
nament sponsored by Respondent and, in accordance with prior prac-
tice, breakfasted with all the other clerical employees before the tour-
nament began. However, whether Moyer was correct in her perceptions
about being ignored by her associates is immaterial to the case at bar.
17 For demeanor reasons, I do not credit McDowell’s testimony that
during the month of June 1996 and before June 27, she noticed no
physical or emotional changes in Moyer, and that Moyer appeared to be
exactly the same as she had always been.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1456
that she could not walk in the office door again. That morning,
she telephoned Carter that she was not feeling well and was
going to need the day off. He told her, “. . . okay, take care of
yourself and keep us informed.” On the next business day—
Monday, July 1—she again telephoned Carter that she was sick.
When he asked what was wrong, she said that she was not feel-
ing well, and was having trouble sleeping and eating.18 On the
following day, July 2, she again telephoned Carter, who asked
how she was feeling. She said that she was not feeling much
better, and that she thought she should make an appointment to
see her doctor. Carter said that this would probably be a good
idea.
Moyer’s health insurance coverage, which she enjoyed by
virtue of Respondent’s collective-bargaining agreement with
her husband’s employer (Bell Atlantic), required her to use a
health maintenance organization, Conshohocken Family Medi-
cine (CFM). She telephoned CFM on July 2, but was told by
the receptionist that she could not obtain a doctor’s appoint-
ment until July 8. Later that same day, July 2, Moyer tele-
phoned Carter that she had been having trouble getting a doc-
tor’s appointment because of the July 4 holiday, and that she
had obtained an appointment for July 8. Carter said that this
was good, and asked her to call and let him know how she had
made out with that appointment. Also, he suggested that she
should get a doctor’s note; but he did not tell her that she
needed to submit a doctor’s note, did not say whom she was
supposed to give it to, and never asked her to give him one.19
On the morning of July 8, Moyer had a half-hour consulta-
tion with Dr. Rita Mancini, the physician with whom CFM had
set up Moyer’s appointment. As a result of that consultation,
Dr. Mancini suggested that Moyer not return to work at that
time, and that she seek counseling. Dr. Mancini said that her
office would telephone a referral to Corporate Health Adminis-
trators (CHA), and that CHA would telephone Moyer later that
day.
Moyer told Dr. Mancini that Moyer had not been working
since June 28. Dr. Mancini asked Moyer if she needed a doc-
tor’s note. Moyer said that if Dr. Mancini wanted to write a
note, that was “fine,” but that Moyer “had never been asked for
one before.”20 Dr. Mancini said that she would give Moyer
something that would take her from this office visit through the
time that Moyer would be able to have an appointment with the
therapist that CHA would refer her to. Dr. Mancini said that
this was by no means a note saying when Moyer could go back
to work, but that it was a note to fill in this gap. Dr. Mancini
said that once Moyer saw the therapist, the therapist would be
responsible for any time that Moyer was off, because Dr. Man-
cini was not a therapist. Dr. Mancini said that Moyer’s problem
“was a counseling problem not from what she could tell prior to
blood tests it was not a medical problem.” The form which Dr.
Mancini gave Moyer bears what appears to be Dr. Mancini’s
authorized signature and her telephone number. Below the

18 My findings as to the content of this conversation are based on
Moyer’s undisputed testimony. My finding that the conversation oc-
curred on Monday, July 1, is based on the fact that this was the first
working day after Friday, June 28. I believe Moyer was mistaken in
dating this conversation as June 30, which was a Sunday.
19 My findings in this sentence are based on Carter’s testimony. In
view of the probabilities of the case, I accept Carter’s denial of Moyer’s
testimony that, he told her that in order not to set a precedent, she
should not show the note to anyone in management unless requested.
20 The quotation is from Moyer’s testimony. Cf. supra fn. 19.
low the printed caption “Certificate to return to work,” the form
includes the following (handwritten portions underscored):
“Name Bernadette Moyer/has been under my care from 7–8–96
to [blank not filled in] and will be able to return to work on 7–
16–96.” Moyer never showed Respondent this note, and there is
no evidence that Respondent saw it at any material time. Dr.
Mancini also arranged for Moyer to have some “blood work”
done that same morning. Later that day, a CHA representative
and Moyer went over a list of “participating therapists” in the
area. On the basis of the “closest one,” they selected an organi-
zation referred to in the record as “Spectrum”; the “actual per-
son” whom Moyer was to contact was Laurie Kennedy, whose
title is “clinical social worker.” Moyer set up an appointment
with Kennedy for July 11.
After setting up this appointment and before July 11, Moyer
telephoned Carter that she had been referred to a therapist and
her appointment was for July 11. She asked if it was necessary
that she call him prior to that; he said no. Moyer said that her
doctor, Dr. Mancini, had said that at least until the time that
Moyer spoke with the therapist, Moyer should not return to
work. Carter said, “[F]ine, keep me posted.”
Moyer had a 1-hour consultation with Kennedy on July 11.
Kennedy told her to come back again on July 18, said that at
that point they would go over Moyer’s evaluation, and (on the
basis of their conversation) strongly advised her not to return to
work at that time.Moyer did not ask her for a note. Thereafter,
and before meeting with Kennedy on July 18, Moyer tele-
phoned Carter that she would be seeing Kennedy again on July
18, and that at that point Moyer would have more information
based on Kennedy’s evaluation of Moyer. Carter wished her
luck, and asked her to call him following that appointment.21
On July 13, Moyer, who does not play golf, attended a golf
tournament, which she had participated in setting up in connec-
tion with Phone Home, 10 or 15 miles from her home. She
arrived at the country club at about 7 a.m., and stayed for a
subsequent luncheon and an awards ceremony.
Clinton had been on vacation during a period which ended
about midday on July 8. About July 9, Carter told him that
Moyer was absent because of alleged illness. Clinton asked
what was wrong; Carter gave him a vague answer. About July
16, Clinton asked Carter for an “update” about Moyer. Carter
said that he had spoken to her and that she was getting some
kind of treatment.22
Moyer did not have any daily contact with Clinton in the
course of her work. Moreover, Clinton testified that when an
employee is absent because of illness, the employee’s immedi-
ate supervisor—in Moyer’s case, Carter—was primarily re-
sponsible. However, Clinton testified that during his conversa-
tion with Carter about July 16, Clinton told him that Clinton
would send Moyer a letter stating that Respondent needed a
“doctor’s note, a documentation as to why she’s off ill.” Fur-
ther, although (aside from the subsequently described letters to
Moyer) Clinton had never communicated with any staff people
by certified mail, his letter to Moyer was sent by certified mail,
return receipt requested. Under date of July 17, 1996, Clinton’s
letter stated:
21 My findings in this and the preceding paragraph are based on
Moyer’s testimony. For demeanor reasons, I do not credit Carter’s
testimony that he had no conversations with her during this period. See
also, the paragraph attached to fn. 22, infra.
22 My findings in this paragraph are based on Clinton’s testimony.
Carter was not asked about this conversation. Cf. supra fn. 21.
COMMUNICATIONS WORKERS LOCAL 13000 1457

You have been absent from work from June 28, 1996
to the present due to a reported illness.
Please acquire a doctor’s note concerning your illness
providing a detailed statement to me as soon as possible.

Moyer received this letter upon returning from her July 18
appointment with Kennedy. Moyer thereupon contacted Ken-
nedy’s office and asked her to forward a letter to Clinton pro-
viding a detailed statement as to Moyer’s treatment and her
condition. On the following day, July 19, Moyer telephoned
Respondent’s office and asked to speak to Carter. When told he
was out of town, Moyer left an oral message that she had re-
ceived Clinton’s letter and her doctor was forwarding the re-
quested information to him.
By handwritten letter to Clinton dated July 19, 1996, with a
courtesy copy to Moyer, Kennedy stated, in part, that Moyer
had been “involved in psychiatric treatment since July 11,
1996, for the treatment of anxiety associated with perceived
work stress. She will continue in treatment [and] is motivated
towards treatment until said issues are resolved. Please contact
me with any concerns or questions.” Kennedy attached to her
signature the title “Clinical Social Work” and a telephone num-
ber. The letter is written on business stationery with the letter-
head “Spectrum/Access Quality Efficiency” and a printed nota-
tion at the bottom of the page, “A Partnership of Professional
Corporations for Behavioral Health.”
Before receiving Kennedy’s July 19 letter, Clinton sent
Moyer another letter by certified mail, return receipt requested,
dated July 23. This letter stated, in part:

In a letter dated July 17, 1996, I asked you to provide this Lo-
cal with a doctor’s explanation of your illness. You have
failed to do so. If we don’t get a detailed explanation of your
illness, we will have to consider appropriate disciplinary ac-
tion.

On July 24, upon returning home from her grandmother’s
funeral, Moyer found in her mail box a notice that certified
mail was awaiting her at the post office. She went to the post
office and picked up Clinton’s July 23 letter. She immediately
called Respondent’s office, where she was connected with
Carter. She told Carter that she was upset, had received a letter
from Clinton, and wanted to speak with him. Carter said that
Clinton was out of town and would not be back until July 30.
She said that she did not know whether she should speak to
Carter or to Clinton. Carter said that she should probably speak
to Clinton, but that she sounded upset, and asked her what was
wrong. She explained the circumstances surrounding her re-
ceipt of Clinton’s July 23 letter, and said that it had threatened
her with disciplinary action for something which she had not
done. When asked for details, she said that Clinton had asked
her to provide him with a note from her doctor, that she had
called her doctor the day Moyer had received Clinton’s letter,
that her doctor had promised her that it would be mailed out the
next day, and that Clinton had not given her even a full week to
get that letter to him. Carter said that Clinton had never told
him about receiving any correspondence from Moyer or her
doctor. When Moyer speculated that the two letters may have
crossed in the mail, Carter offered to check Clinton’s unopened
mail to ascertain whether he had received the letter which Ken-
nedy had promised to send him. After putting Moyer on hold,
he ascertained that what appeared to be the letter in question
was among Clinton’s unopened mail. When Carter returned to
the telephone and so advised Moyer, she became rather agi-
tated. She said that she felt she was being harassed, to which
Carter replied that she needed to calm down and relax. Moyer
said that she had been trying to calm down, but had not been
given any opportunity to do so, that “they keep on sending me
all these certified letters.” Carter said that he knew all this was
hard for her in view of her allegiance to Gallagher. Moyer said,
“I am sick and tired of hearing and having that shoved down
my throat. As far as I am concerned that is a perception of the
executive board of why I am upset the executive board has to
realize that I am upset based on how they have been treating
me.” Carter said that he would be seeing Clinton the next day,
and asked if it would be all right if Carter were to hand-deliver
the unopened letter. She said that she would appreciate Carter’s
doing this.
Carter hand-delivered the unopened letter in question, which
was in fact Kennedy’s July 19 letter to Clinton, on July 25 in
Hershey, Pennsylvania, where he was attending a union con-
vention. Clinton returned to his Philadelphia office on July 30,
and telephoned Kennedy’s office. He told her receptionist that
he would be faxing Kennedy some material regarding Moyer,
including some papers which Moyer was to sign in order to
release her medical records. Kennedy was not asked to return
his call. The next day, Kennedy asked Moyer whether she
would be willing to sign a release of her medical records. The
record fails to show whether any definitive reply was given by
Moyer, who asked whether the release was being requested for
workmen’s compensation purposes. Kennedy said that she
assumed so but had not received a fax of the paperwork. Ken-
nedy never did receive such a fax, and, so far as she knew, her
office received no other calls from Clinton.23
By letter to Moyer dated July 31, sent by certified mail with
return receipt requested, Clinton stated:

In my letter of July 17, 1996 and my subsequent letter
of July 23, 1996, I asked you for verification of your ill-
ness, specifically a doctor’s diagnosis.
You have chosen not to provide me with such, you
have only provided a sketchy letter from a social worker
who refuses to return my calls. In fact, you called Vice
President Carter when you received your letter on
Wednesday, July 24, 1996 and we have not heard from
you since.
Therefore, I must insist that you return to work on Fri-
day, August 2, 1996.

Upon receiving this letter at 2 p.m. on Friday, August 2,
Moyer telephoned Kennedy and asked her why she had not
returned Clinton’s telephone calls. Kennedy said that so far as
she knew, she had received only one call from Clinton’s office,

23 My findings as to the contacts between Kennedy and Respondent,
and as to the absence thereof, are based on Moyer’s testimony that she
was so advised by Kennedy. Because offered and received without
objection or limitation, such testimony is probative of the truth of the
matter asserted by the declarant. Advance Transportation Co., 300
NLRB 569, 572 (1990), enfd. 979 F.2d 569 (7th Cir. 1992); Today’s
Man, 263 NLRB 332 (1982). Because I know of no particular reason
why the receptionist would have misrepresented the matter to Kennedy
or why Kennedy would have misrepresented the matter to Moyer, be-
cause Moyer was generally a more reliable witness than Clinton, and
for demeanor reasons, I do not credit Clinton’s testimony that on three
separate occasions he left word with Kennedy’s office for her to call
him about Moyer, but Kennedy never returned his calls. See N.LRB v.
Walton Mfg. Co., 369 U.S. 404, 408 (1962).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1458
and that the person who spoke to Kennedy’s receptionist had
said Clinton’s office would be faxing paperwork to Kennedy
which needed to be signed, that the faxes had never been re-
ceived, and that she had not been asked to return the call from
Clinton’s office (see supra fn. 23).
Then, Moyer telephoned Clinton, who asked her how she
was feeling. She said “not too good.” He asked her where she
was. She said that she was at home and had just received his
July 31 letter. She asked whether he really expected her to re-
port to work that day. He said no, but that he did expect her to
report to work at 8 a.m. on Monday, August 5. She said that she
had been advised by her doctor not to return to work yet “based
on the diagnosis.” Clinton said that Kennedy’s note was unsat-
isfactory. Moyer said, “. . . what if I go see a doctor?” He said
that this was what he had been asking her to do all along, but
that he still wanted her to come into work, and that when she
had time to go to the doctor, she would be excused with pay.
She asked what to do if she made the doctor’s appointment for
8 a.m. He said that she should go to the doctor at 8 a.m. and
come in after that. She said that she did not think she could do
that. He said that she could not just decide to go off sick when-
ever she felt like it. She said that this was not a conscious deci-
sion she had made, that it was something that had happened.
She asked what she should do. He told her that she should come
back to work. She said that she could not come back to work at
this time. He asked why not. She said that everyone was look-
ing at her and picking on her, and that she had nothing to do.
He said that there was plenty to do. She said that he did not
understand, that she was used to being in control and in com-
mand, and to running her own operation, that she did not do
that any more, and she could not handle “just doing stuff
around that second floor.” Clinton said that she was receiving a
pay check, and that if the second floor was bothering her, he
would arrange for her to receive work on the third floor (a loca-
tion which, he testified, is “basically behind closed doors”)
until he returned from Pittsburgh, where he was scheduled to be
on August 5. She said that she was not able to come back and
work at that time. He said that Respondent could not provide
her with any benefits other than those provided to members
under Respondent’s bargaining agreement with Bell Atlantic,
and that many Bell members underwent counseling daily and
reported to work daily. She said that her counseling was due to
problems she was having at work, and that she was unable to
return. She asked whether there was anything else she could do,
and whether he wanted her to see a psychiatrist. He said that all
he knew was that he wanted her to come back to work. He said
that because she did not have a satisfactory explanation for her
absence, she was required to come into work on Monday, and
that he would be in Respondent’s Pittsburgh office if she
needed to speak to him. She said that all she could do was try.24

24 My findings as to this Moyer—Clinton conversation are based on
a composite of credible portions of their testimony. Clinton testified at
one point that he wanted her to come to work on August 5 so that he
could talk to her about the situation, and that “I offered to meet her
somewhere else also, it wasn’t a question of coming to work.” How-
ever, he elsewhere testified that this was not his purpose in directing
her to come to work on August 5, and he was admittedly going to be
out of town on business for a period which included August 5. Accord-
ingly, although Moyer merely testified that she did not “recall” his
telling her that he wanted to talk to her, to see her, or to discuss his
illness with her, I do not credit the testimony by Clinton summarized in
this footnote.
That evening, Moyer telephoned Kennedy. Kennedy advised
her not to report for work, and said that because Moyer’s health
and mental state had deteriorated, she should consult a psychia-
trist. Kennedy said that she would arrange for an emergency
appointment for Moyer to see one of Spectrum’s psychiatrists
on Monday, August 5. Moyer never asked Kennedy to refer
Moyer to a psychiatrist or to a doctor of any kind.
E. Allegedly Discriminatory Suspension of Moyer’s Pay
Moyer did not report to work on August 5. That morning,
she called Kennedy’s office to inquire about the appointment
with a psychiatrist which Kennedy had promised to set up.
Moyer was advised that such an appointment had been set up
for 6:15 p.m. that same day, August 5. Then, Moyer telephoned
Clinton’s Philadelphia office and asked his secretary for his
telephone number in Pittsburgh. After being given this informa-
tion, Moyer asked when he would be expected to be there. His
secretary said that he would probably be available about 11
a.m. because he was attending a funeral.
At 11:30, Moyer called the Pittsburgh office, but he was not
available. After allowing for lunch time, at 1:30 p.m. Moyer
again telephoned the Pittsburgh office. When connected with
Clinton, she advised him that she had a 6:15 p.m. appointment
with a psychiatrist at Spectrum. Clinton asked where she was;
she said that she was at home. He said, “. . . you didn’t report to
work this morning?” She said no, she was unable to. Clinton
said that he had asked her to report to work that morning and
that she had left him with the impression that she would at-
tempt to come in. She said that she was not coming in to work.
He said that she was leaving him no choice but to suspend her
pay. She said, “I guess you need to do what you need to do, and
I need to do what I need to do to get well.” He said that her pay
was suspended.25
Up to that point, Moyer had continued to receive her full sal-
ary during the period when she was not reporting to work. After
that, she ceased receiving any pay. Respondent has a practice of
paying employees when they are out sick, at full pay or (de-
pending on their length of service) at a percentage of their regu-
lar pay.
F. Allegedly Discriminatory Discharge
That evening, Moyer had a one-hour consultation with Don-
ald Levin, M.D., whose office is in the same office complex as
Kennedy’s office. During this August 5 consultation, she told
him that she had been out of work since June 27, but did not
show him Clinton’s July 31 letter. Dr. Levin diagnosed her as
suffering from “major depressive disorder, single episode, se-
vere” (see infra), and gave her prescriptions for an anti-
depressant and a sleeping aid. Dr. Levin advised her not to
return to work or to drive while she was on this medication, and
told her that she would have to be on this medication for about
a month. He told her to keep in touch with him by telephone
during that month if she had any problems with the medication
or if she needed to discuss any other problems with her em-
ployer. An appointment with him was scheduled for about Sep-
tember 3; he did not schedule the appointment for an earlier
25 My findings as to this Moyer—Clinton conversation are based on
a composite of credible portions of their testimony. She testified that he
said he was suspending her pay, and he testified to saying that he was
suspending her without pay. Because the complaint alleges merely that
on that day Respondent suspended her pay, I accept her version for
purpose of this Decision.
COMMUNICATIONS WORKERS LOCAL 13000 1459
date because he wanted to allow an adequate time for the medi-
cation to work.
A letter to Clinton from Dr. Levin dated August 5 was re-
ceived by Respondent on August 8. On August 6, Moyer ob-
tained a copy of Dr. Levin’s letter. About August 8, she faxed
to Respondent a copy of this letter and a covering letter (dated
August 7) from her to Respondent, which faxed documents
were received by Respondent on August 9. Moyer’s covering
letter stated:

I have enclosed a copy of my doctor’s correspondence
I hope that this will meet the requirements set forth in your
previous letters. If all goes well, I will be returning to
work early next month.
Please contact either myself [or] Dr. Levin if you
should have any questions.

Dr. Levin’s letter stated that Moyer

is currently under my care for treatment of Major Depressive
Disorder Single Episode Severe (DSM IV 296.33). Her cur-
rent condition renders her temporarily incapable of perform-
ing her work responsibilities. It is estimated that with appro-
priate treatment she may return to work by September 9,
1996.
Inferentially, in citing “DSM IV 296.33,” Dr. Levin
was referring to a book whose title page reads “Diagnostic
and Statistical Manual of Mental Disorders/Fourth Edi-
tion/DSM-IV . . . /Published by the/American Psychiatric
Association/Washington, D.C.,” with a copyright date of
1994.26 DSM-IV sets forth a nomenclature (with an alpha-
betic and numerical coding system) for mental disorders,
which nomenclature is used by, inter alia, psychiatrists and
other physicians, psychologists, social workers, occupa-
tional and rehabilitation therapists, and counselors (p. xv).
It contains a 21–page listing of individual contributors,
mostly medical doctors (pp. 851–872). The classification
system was developed for use in clinical settings, among
others (p. xxiii). DSM-IV states, in part (pp. 320–322, 325,
339–342, 375–378):
Major Depressive Disorder is associated with high
mortality. Up to 15% of individuals with severe Major
Depressive Disorder die by suicide . . . Among individuals
seen in general medical settings, those with Major Depres-
sive Disorder have more pain and physical illness and de-
creased physical, social, and role functioning (p. 340).
Major Depressive Disorder (Single or Recurrent) is
twice as common in adolescent and adult females as in
adolescent and adult males (p. 341)

26 The Library of Congress call number for this book is RC
455.2.C4D54. The page immediately following the title page states,
inter alia:
DSM and DSM-IV are trademarks of the American Psychi-
atric Association . . .
The correct citation of this book is American Psychiatric
Association; Diagnostic and Statistical Manual of Mental
Disorders, Fourth Edition, Washington, D.C.,
American Psychiatric Association, 1994.
Prepared by the Task Force on DSM-IV and other commit-
tees and work groups of the American Psychiatric Associa-
tion DSM-IV.
Major Depressive Disorder
Diagnostic Features
The essential feature of Major Depressive Disorder is a
clinical course that is characterized by one or more Major
Depressive Episodes (p. 339)
[Describing the significance of the fourth digit (3) in
the numerical classification which Dr. Levin attached to
Moyer’s illness] recurrent Major Depressive Episodes (p.
340)
[Describing symptoms calling for the fifth digit (3) in
the numerical classification which Dr. Levin attached to
Moyer’s illness:] Episodes that are Severe without Psy-
chotic Features are characterized by the presence of most
of the criteria symptoms and clear cut, observable disabil-
ity (e.g., inability to work). (pp. 340, 375–376, emphasis
in original)
Major Depressive Episode
Episode Features
The essential feature of a Major Depressive Episode is
a period of at least 2 weeks during which there is either
depressed mood or the loss of interest or pleasure in nearly
all activities. . . . The individual must also experience at
least four additional symptoms drawn from a list that in-
cludes changes in appetite or weight, sleep, and psycho-
motor activity; decreased energy; feelings of worthless-
ness or guilt; difficulty thinking, concentrating, or making
decisions; or recurrent thoughts of death or suicidal idea-
tion, plans, or attempts. . . . The symptoms must persist for
most of the day, nearly every day, for at least 2 consecu-
tive weeks. The episode must be accompanied by clini-
cally significant distress or impairment in social, occupa-
tional, or other important areas of functioning (p. 320)
Appetite is usually reduced, and many individuals feel
that they have to force themselves to eat. . . . When appe-
tite changes are severe (in either direction) there may be a
significant loss or gain in weight (p. 321)
The most common sleep disturbance associated with a
Major Depressive Episode is insomnia (p. 321)
Decreased energy, tiredness, and fatigue are common
Even the smallest tasks seem to require substantial effort
(p. 321)
it is not possible to predict accurately whether or
when a particular individual with depression will at-
tempt suicide (p. 322)
The degree of impairment associated with a Major De-
pressive Episode varies, but even in mild cases, there must
be either clinically significant distress or some interference
in social, occupational, or other important areas of func-
tioning. . . . If impairment is severe, the person may lose
the ability to function socially or occupationally (p. 322)
Course
Symptoms of a Major Depressive Episode usually de-
velop over days to weeks. A prodromal period . . . may
last for weeks to months before the onset of a full Major
Depressive Episode. The duration of a Major Depressive
Episode is also variable. An untreated episode basically
lasts 6 months or longer. . . . In a majority of cases, there is
a complete remission of symptoms, and functioning re-
turns to the premorbid level (p. 325)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1460
Clinton testified that Dr. Levin’s letter “wasn’t satisfactory
for our needs” because it “didn’t describe the type of treatment
she was getting [or] how long [she had] been under treatment
[or] how long he had seen her. It didn’t fit any of the require-
ments that we have with respect to a long term illness such as
this was becoming.” Clinton never attempted to contact Dr.
Levin. Nor did Clinton speak with any experts in the field of
mental health before making the determination that Moyer was
capable of returning to work.
By letter to Moyer dated August 8 and sent certified mail, re-
turn receipt requested, Clinton stated, in part:

You have been absent from work since June 28, 1996,
because of a reputed illness. I wrote to you on July 17,
1996, requesting a doctor’s note validating your illness
and providing a detailed statement to me. I received a hand
written communication from an unidentified concern dated
July 19, 1996, which stated that you had been “involved in
psychiatric treatments since July 11, 1996, for the treat-
ment of anxiety.” This communication is not a doctor’s
report and certainly does not constitute a medical opinion
that you are physically or mentally disabled or unable to
perform your regular duties for this Union. I also have a
letter dated August 5, 1996, from Donald Levin, M.D.,
which I do not find to be an acceptable excuse for your
failure to be at work since June 28, 1996.
I wrote you again under the dates of July 23, 1996 and
July 31, 1996, reiterating my request for a doctor’s expla-
nation of your illness. In my last letter to you of July 31,
1996, I requested you to return to work on Friday, August
2, 1996, and you failed to do so.
Therefore, please be advised that unless you return to
work on Monday, August 12, 1996, or provide a legitimate
medical explanation for your failure to perform your du-
ties for more than a month, this Union will have no alter-
native but to terminate your employment.

Moyer did not return to work because her doctor had advised
her not to, and because the medication which he had prescribed
made her unable to drive; she credibly testified that the antide-
pressant drug called for by her August 5 prescription (which
was later changed) turned her into “a zombie for at least a week
and a half.”27 A letter to her from Clinton dated August 13,
1996, sent certified mail, return receipt requested, states:

Your employment with this Local is hereby termi-
nated.
You have been absent from work since June 28, 1996.
You have been requested on several occasions to provide a
doctor’s note certifying your illness, and finally, by letter
dated August 5, 1996, Dr. Donald Levin wrote to me ad-
vising you were under treatment, but failing to state the
length of such treatment, the length of your illness and to-
tally failing to justify your absence from employment
since June 28, 1996.
By letter dated August 8, 1996, you were advised that
you should either report to work on Monday, August 12,
1996, or provide a legitimate medical explanation for your
failure to do so since June 28, 1996, and you have not
complied with this request.

27 She lives about 2-1/2 miles from the nearest public transportation
to Respondent’s office. The road is either uphill or unpaved. She did
not ask her husband or a friend to drive her down.
Therefore, because of your failure to provide a justifi-
cation for your absence from employment and your failure
to notify this office concerning that absence, and because
of such absence, your employment is terminated.

Although Dr. Levin had advised Moyer on August 5 to con-
tinue to take the medication prescribed by him for about a
month, she discontinued taking that medication about a week
after receiving her August 13 discharge letter. However, she
testified at one point that because of that medication, she was
unable to drive for about the whole month of August.28
Clinton testified at the hearing that Moyer “was terminated
for failure to report to work, for failure to provide the necessary
documents to document her illness. For failure to cooperate
with . . . the management of the local and for job abandonment
basically.” He testified that he did not believe her illness was
“as serious as she was trying to let on that it was.”
Moyer appealed her discharge, inferentially though an inter-
nal procedure maintained by Respondent, but was unsuccessful.
Although she made no claim that she was disabled for as long
as 52 weeks, she claimed to the Union that she should receive
13 weeks of full pay and 39 weeks at half pay, motivated by her
belief that she had suffered a disability due to work. So far as
the record shows, she received no pay from Respondent for any
period after August 5, 1996, when Clinton suspended her sick
pay.
G. Respondent’s Practice Regarding Doctor’s Notes for Ab-
sences Allegedly due to Health Reasons
Before becoming Respondent’s president in January 1994,
Clinton had served as Respondent’s vice president and a mem-
ber of Respondent’s executive board between 1984 and 1992,
and thereafter as Respondent’s executive vice president. He
testified that it was his “understanding” that prior to 1994, staff
employees had to bring doctor’s notes if they were out for any
period of time. He testified that in January or February 1994, he
advised the executive board that Respondent tried to give to its
employees the same basic benefits that Respondent’s member-
ship received under its bargaining agreement with Bell Atlantic,
and “reaffirmed” to the executive board, including Gallagher
and Carter, that “medical documentation” was required of em-
ployees who were out for more than 7 calendar days. Clinton’s
testimony that he so advised the executive board is wholly un-
corroborated. Although Carter, Maisano, and Carr have been on
Respondent’s executive board at all material times, Maisano
and Carr did not testify, and Carter, although called by Respon-
dent as a witness, was not asked about this matter. In view of
this absence of direct or even indirect corroboration, and for
demeanor reasons, I credit Gallagher’s denial that Clinton so
advised the executive board; see supra footnote 12.
My finding that he did not so advise the executive board is
indirectly corroborated by other record evidence. Thus, by his
own admission Clinton did not inform the staff about the alleg-
edly “reaffirmed” policy, staff members have never been given
a copy nor told that it applies to them, and Respondent does not
maintain a copy for the use of the staff (see infra fn. 32). Nor
had Clinton ever related the alleged doctor’s-note policy to
28 As previously noted, Dr. Levin scheduled her second appointment
about a month after her first appointment in order to allow an adequate
time for her medication to work. The record otherwise fails to show
whether her medication interfered with her ability to drive for any
period following its discontinuance.
COMMUNICATIONS WORKERS LOCAL 13000 1461
Western Region vice president Jerry Harris, who had become a
member of the executive board 4 months before Clinton testi-
fied. Furthermore, Respondent did not in practice observe this
allegedly “reaffirmed” policy before Clinton became Respon-
dent’s president in January 1994. Thus, in 1993 Moyer was
absent from work for 2 to 3 weeks because of bronchitis, but
was not asked to and did not supply a doctor’s note. In 1991 or
1992, employee Weber was absent from work for about 4
weeks because of a broken ankle, but was not asked to and did
not supply a doctor’s note. Also about 1991 or 1992, former
employee Marci Demi was on leave for at least a month due to
severe depression, but was not required to bring a doctor’s note.
In 1989, Moyer was absent from work for about 3 weeks be-
cause of foot surgery, but was not asked to and did not supply a
doctor’s note.29
Nor does the record show that after Clinton became Respon-
dent’s president in January 1994, Respondent followed the
practice of requiring doctor’s notes as to all absences exceeding
7 days. Although the record contains all of the doctors’ notes
which had been submitted by Respondent’s employees and
were still in Respondent’s files in April 1997,30 only one of
these notes involves an absence encompassing more than 7
calendar days.31 Moreover, since Clinton became president of
Respondent, and laying Moyer to one side, no employee has
been disciplined, suspended, or discharged for failing to bring a
doctor’s note or for excessive absenteeism. Nor has any em-
ployee except Moyer been suspended or discharged for any
reason during this period. In view of the foregoing evidence,
and for demeanor reasons, I credit Gallagher’s testimony that
throughout Clinton’s presidency and until Gallagher’s tenure as
executive vice president ended in November 1996, Respondent
did not have a regular and consistent practice of requiring doc-
tor’s notes, and that whether such a note would be required
depended on the circumstances.32

29 During Moyer’s absences, her direct supervisor was Gallagher.
During Demi’s absence, her direct supervisors were individuals who
have since died. For the period encompassing Weber’s 1991 or 1992
absence, her immediate supervisor may have been Gallagher.
30 Respondent put into evidence the doctors’ notes which it had sup-
plied to the General Counsel pursuant to an April 1997 subpoena which
called for all of the doctors’ notes submitted by Respondent’s employ-
ees and in Respondent’s files from January 1, 1995, to the present (see
pp. 41–42 of Respondent’s brief). Because Respondent was trying to
show a regular practice of supplying doctors’ notes, I infer that the
unsubpoenaed doctors’ notes which it put into evidence consist of all of
the others which Respondent possessed.
31 This exception was Gormley’s absence between February 3 and
21, 1997.
32 Clinton testified that as to the period of absence after which a doc-
tor’s note would be required, he selected the 7-day period because this
was the period used by Bell Atlantic with respect to the bargaining unit
employees represented by Respondent. In at least attempted support of
this testimony, Respondent offered into evidence a Bell Atlantic docu-
ment dated November 23, 1987, captioned “Attendance Improvement”
and signed only by Bell Atlantic personnel, which states (sec. 4.32):
4.32 Medical Certification
Medical Certification is required on all absence in excess of 7
days. In addition, there are cases where management may feel the
employee is not securing medical care early enough to keep illness
at a minimum, or where there is reasonable doubt as to the validity
of the illness report. In these cases the employee may be required to
provide a statement from the employee’s personal physician. If so,
the employee should be notified of the requirement in advance of the
H. Aftermath
In November 1996, an election for the office of Respon-
dent’s president was conducted among Respondent’s members.
The only presidential candidates on the ballot were Clinton and
Gallagher. The tally showed that Gallagher had received a ma-
jority of the ballots cast, but the election was set aside by the
United States Department of Labor. At the rerun election, the
tally showed that Clinton had received a majority. At the time
of the hearing in the case at bar (mid-May 1997), this result was
under appeal.33
Meanwhile, Moyer applied for unemployment compensation
benefits. An initial determination that she was eligible for such
benefits for the week ending September 28, 1996, was appealed
by Respondent on the grounds, inter alia, that she had engaged
in willful misconduct by failing to supply adequate medical
explanation for her absence from work and by failing to comply
with instructions to return to work by August 12, 1996; and that
she was not able to work during the period at issue. On Decem-
ber 3, 1996, in affirming the initial determination, the referee
found that she was in fact able to and available for work during
the weeks ending September 21 (a “waiting week”) and 28,
1996. He further stated:

Findings of fact:
. . . .
4. Subsequent to June 27, 1996 the claimant was un-
able to report for work because she was suffering from de-
pression and anxiety.
. . . .
6. On July 17, 1996, the employer mailed a letter to the
claimant, which she received, instructing the claimant to
provide the employer with medical documentation justify-
ing her absence.
. . . .
7. In response to the aforesaid letter, on July 19, 1996
the claimant’s therapist mailed to the employer a letter in-
dicating that the claimant was receiving psychiatric treat-
ment for anxiety and had been receiving such treatment
since July 11, 1996
. . . .
10. On August 8, 1996, the employer mailed a letter to
the claimant, which she received, informing the claimant
that she must supply the employer with further medical

employee’s next absence. The statement should indicate the diagno-
sis and prognosis.
The General Counsel’s posthearing brief renews his motion at the
hearing to reject this document, and to strike Clinton’s testimony about
this at least alleged 7-day policy, on the ground that Respondent failed
to produce this document in response to the General Counsel’s sub-
poena for all documents “showing the rules, regulations, policies and
procedures governing the conduct and performance of employees of the
Respondent during the period January 1, 1995 to the present.” The
General Counsel relies on Bannon Mills, Inc., 146 NLRB 611, 614 fn.
4, 633–634 (1964). In view of my finding that Clinton did not in fact
advise anyone about any 7-day period, and that Respondent did not in
fact follow such a policy, I need not and do not reconsider my action at
the hearing in denying the General Counsel’s motion to strike this Bell
Atlantic document and Clinton’s testimony related thereto. I note that
nothing in this document requires a statement of how long the em-
ployee had been under treatment, or of the treatment being received or
contemplated.
33 Neither party contends that Moyer’s discharge was in any way
motivated by the fact that for may years she had worked closely with
Gallagher, Clinton’s perceived intraunion political opponent.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1462
documentation, or return to work by August 12, 1996. The
claimant was informed that if she failed to do either of the
aforestated, she would be terminated.
. . . .
11. On August 8, 1996 the claimant supplied the em-
ployer with a letter from her doctor which indicated that
the claimant was “Currently under my care for treatment
of Major Depressive Disorder Single Episode Severe. Her
current condition renders her temporarily incapable of per-
forming her work responsibilities. It is estimated that with
appropriate treatment she may return to work by Septem-
ber 9, 1996.”
REASONING:
. . . .
[T]he medical documentation submitted by the claim-
ant to the employer was adequate to explain why she was
absent from work, especially in light of the practice estab-
lished by the employer of not requiring medical documen-
tation from other employees who were absent for extended
periods of time for health reasons . . . the claimant was un-
able to return to work by August 12, 1996 as instructed by
her employer because she was still under the care of her
doctor.

Although not controlling as to the findings of fact or conclu-
sions contained therein, the referee’s decision has some proba-
tive value and is admissible into evidence. Western Publishing
Co., 263 NLRB 1110 fn. 1 (1982), and cases cited.
I. Analysis and Conclusions
The evidence shows that Respondent’s president, Clinton,
and Respondent’s Eastern Region vice president, Carr, both
believed that Moyer was “the driving force” behind the move-
ment to organize Respondent’s secretaries into the OPEIU. The
evidence further shows that during November 1995 and Febru-
ary 1996 conversations limited to executive-board members,
Clinton said that nobody was going to “embarrass the board by
trying to join a union,” and stated that Respondent’s secretaries
were very wrong indeed in thinking that if they were unionized
their bargaining representative would automatically obtain for
them the benefits of Respondent’s bargaining agreements with
Bell Atlantic; to which Carr added that Respondent’s secretar-
ies would have to “earn” such benefits. Because these state-
ments by Clinton were made during the perceived privacy of an
executive-board conference, I regard them as a more reliable
reflection of Clinton’s real sentiments toward the secretaries’
OPEIU drive than his late May 1996 statements of neutrality at
Respondent’s convention (after the secretaries—unionization
matter had been publicly brought up notwithstanding the
agenda committee’s March 1996 refusal to include it on the
agenda) and to his own secretary, and his testimony at the hear-
ing that it made no difference to him whether or not staff em-
ployees organized with a union, “in fact, I would be very happy
to see that”; and that he would “prefer” that they be a union.
Moreover, the record shows that Respondent’s tendered rea-
sons for suspending Moyer’s sick pay, and later discharging
her, were pretextual. Moyer had been working for Respondent
for nine and a half years, almost entirely under Gallagher. Gal-
lagher credibly testified to the opinion that her abilities were
“outstanding,” and there is no evidence that any other member
of Respondent’s management believed otherwise.34 Further,
there is no contention or evidence that before July 1996, she
had ever been disciplined or even reproached for any reason.
Moreover, under Respondent’s customary practice, vice presi-
dent Carter would have been primarily responsible for commu-
nicating with her about her illness, and Respondent’s commu-
nications would not have been sent by certified mail. Neverthe-
less, Respondent’s written communications to her about her
illness were sent from the outset by certified mail, and they
were sent by president Clinton, although he did not have daily
contact with her in the course of her work.
Furthermore, the documents submitted by Moyer to Clinton
in connection with her illness, Clinton’s conduct after receiving
them, and his testimony about their alleged deficiencies, belie
the honesty of his testimony that such documents did not to his
satisfaction deal with the health reasons which had led to her
absence. Thus, on August 8, 1996—5 days before Clinton
wrote her termination letter—Respondent received a letter from
“Donald Levin, M.D.,” whom Moyer had described to Clinton
as a psychiatrist, stating that she was under his care for treat-
ment of “Major Depressive Disorder Single Episode Severe.
. . . Her current condition renders her temporarily incapable of
performing her work responsibilities.” This letter obviously
complied with Clinton’s previous instructions to Moyer about
the kind of note she should supply about her illness.35 The
statement in Clinton’s August 13 letter discharging Moyer and
reiterated in his testimony, that Dr. Levin’s letter was insuffi-
cient because it did not describe the type of treatment she was
getting, how long she had been under treatment, or how long
Dr. Levin had seen her, added requirements which before
Moyer’s discharge had never been specified to anyone, either
by Clinton or in the Bell Atlantic Attendance Program. More-
over, the doctor’s notes which Respondent offered into evi-
dence show that it had accepted, over a period of years, doc-
tor’s notes which failed to describe the type of treatment the
employee was receiving and gave only the dates during which
the employee had been under the doctor’s care; Moyer had
advised Clinton on August 5 (the date of Dr. Levin’s letter) that
Dr. Levin was a psychiatrist and, in effect, that her appointment
that day was her first appointment with him; and Kennedy’s
July 19 letter to Clinton had stated that Moyer had “been in-
volved in psychiatric treatment since July 16, 1996, for the
treatment of anxiety associated with perceived work stress. She
will continue in treatment.” Clinton’s dismissal of the letter

34 Rather similarly, unit 27 president LaVanga, who is a customer
systems engineer, credibly testified to the opinion that Moyer was an
“excellent worker.” She was unit 27’s direct staff contact, and almost
always performed work for LaVanga during the one to three days a
week when he visited Respondent’s offices.
35 Thus, in Moyer’s discharge letter dated August 13, Clinton stated
that Moyer had “been requested on several occasions to provide a doc-
tor’s note certifying your illness.” Clinton’s August 8 letter stated that
his July 17 letter had requested “a doctor’s note validating your illness
and providing a detailed statement”; and that Kennedy’s July 19 letter
“is not a doctor’s report and . . . does not constitute a medical opinion
that you are physically or mentally disabled or unable to perform your
regular duties.” Clinton’s July 31 letter stated that his July 23 and July
17 letters had asked “for verification of your illness, specifically a
doctor’s diagnosis.” His July 23 letter stated that his July 17 letter had
asked her to supply “a doctor’s explanation of your illness. . . . If we
don’t get a detailed statement of your illness, we will have to consider
disciplinary action.” His July 17 letter requested “a doctor’s note con-
cerning your illness providing a detailed statement.”
COMMUNICATIONS WORKERS LOCAL 13000 1463
signed by Kennedy “Clinical Social Work” without following
up on his office’s undertaking to fax material to Kennedy for
Moyer’s signature on medical records release forms, his initial
description of a “clinical social worker” as “somebody who,
. . . I guess, listens to people,” and his suspension of Moyer’s
sick pay without troubling to ascertain what such a professional
worker in fact does, foreshadowed his dismissal of Dr. Levin’s
letter without following up on its alleged deficiencies.
Although Clinton testified that he believed Moyer was exag-
gerating her illness,36 he did not testify in terms that he sus-
pended Moyer’s sick pay, and later discharged her, partly be-
cause he believed that she was not as sick as she claimed to be,
and that she was in fact capable of working during part or all of
the period of her absence on claim of health problems. Any
such belief might well be dispelled by a honest layman’s read-
ing of Dr. Levin’s letter stating that Moyer was under treatment
for a “Major” and “Severe” “Disorder,” and was “temporarily
incapable of performing her work responsibilities.” At the very
least, such language would almost certainly prompt an honest
reader to contact Dr. Levin with any questions which such lan-
guage was thought not to answer. On the basis of the coding
which Dr. Levin’s letter attached to his diagnosis, I infer that if
Clinton had taken advantage of the suggestion in Moyer’s cov-
ering letter to “Please contact . . . Dr. Levin if you should have
any questions” and had asked him the questions which (ac-
cording to Clinton’s testimony) Dr. Levin’s letter left unan-
swered, Dr. Levin would have told Clinton that Moyer was
suffering from a mental disorder which, before she consulted
him, had consisted of at least 2 major depressive episodes each
of which had lasted for at least 2 consecutive weeks and was
preceded by symptoms which may have developed over a pe-
riod of months; that during her illness, she was suffering from
clinically significant distress or impairment in occupational
areas of functioning; that nearly every day during this period,
she may have been unable to function socially or occupation-
ally during most of the day; that Moyer’s disorder is associated
with a mortality rate of up to 15 percent; and that if untreated,
her illness would likely last 6 months or longer. (As previously
noted, Dr. Levin’s August 5 letter had said, “It is estimated that
with appropriate treatment she may return to work by Septem-
ber 9, 1996,” about 2–1/2 months after her absence had begun.)
In view of Clinton’s opposition to the unionization of Re-
spondent’s secretaries, his belief that Moyer was the “driving
force” behind their organizational efforts, LaVanga’s action
during the convention in favorably referring to the union
movement among the staff secretaries with whom he dealt,
Moyer’s long tenure and outstanding abilities, and the pretextu-
ous character of Clinton’s explanation for his actions in sus-
pending her sick pay and thereafter discharging her, the Gen-
eral Counsel has shown by a preponderance of the evidence
that such conduct by Clinton was motivated by her union activ-
ity, and in no respect by the reasons advanced by Clinton. See
Whitesville Mill Service Co., 307 NLRB 937 (1992). Although
Respondent’s treatment of two other employees who signed
OPEIU cards—Weber and Gormley—may have been proper as
to Weber and generous as to Gormley (see supra part III,B),
36 Moreover, Respondent’s brief contends (pp. 2, 47) that Respon-
dent entertained a good-faith belief that Moyer was feigning illness.
However, during the unemployment compensation proceedings, Re-
spondent apparently contended that Moyer was unable to work during
the last full week of September 1996. Dr. Levin’s August 5 letter had
estimated that she could return to work by September 9.
there is no evidence that Respondent knew or suspected their
OPEIU activity. In any event, Respondent’s treatment of Weber
and Gormley does not disprove that Respondent discriminated
against Moyer, the perceived “driving force” behind the
OPEIU. See Nachman Corp. v. NLRB, 337 F.2d 421, 424 (7th
Cir. 1964); Cannondale Corp., 310 NLRB 845, 852 (1993). My
finding that the only reasons advanced by Respondent for Clin-
ton’s action were wholly pretextuous necessarily means that
Respondent has failed to sustain its burden, which the General
Counsel’s evidentiary showing imposes upon it, of showing
that even if Respondent had not believed that Moyer was a
leader in the organizational movement, Respondent would
nonetheless have taken such action against Moyer for lawful
reasons. Bridgeway Oldsmobile, 281 NLRB 1246 fn. 2 (1986).
Accordingly, I find that by suspending Moyer’s sick pay and
thereafter discharging her, Respondent violated Section 8(a)(1)
and (3) of the Act.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. OPEIU is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
3. Respondent has violated Section 8(a)(1) and (3) of the Act
by suspending employee Bernadette Moyer’s sick pay on Au-
gust 5, 1996, and discharging her on August 13, 1996.
4. The unfair labor practices described in Conclusion of Law
number 3 affect commerce within the meaning Section 2(6) and
(7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain unfair
labor practices, I shall recommend that Respondent be required
to cease and desist therefrom, and from like or related conduct,
and to take certain affirmative action necessary to effectuate the
policies of the Act. Respondent will be required to offer rein-
statement to Bernadette Moyer to her former position or, if that
position no longer exists, to a substantially equivalent position;
and to make her whole for any loss of pay and other benefits
she may have suffered by reason of the discrimination against
her. Backpay shall be computed as described in F. W. Wool-
worth Co., 90 NLRB 289 (1950), with interest as described in
New Horizons for the Retarded, 283 NLRB 1173 (1987). In
addition, Respondent will be required to post appropriate no-
tices. Because some of the OPEIU organizing activity which
led to the discrimination against Moyer was directed to at least
one employee in Respondent’s Pittsburgh, Pennsylvania, office,
posting will be required in that office as well as the Philadel-
phia office.
On the basis of these findings of fact and conclusions of law,
and on the entire record, I issue the following recommended
Order:37
ORDER
The Respondent, Communications Workers of America, Lo-
cal 13000, AFL–CIO, its officers, agents, successors, and as-
signs, shall
37 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended 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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1464
1. Cease and desist from
(a) Suspending employees’ sick pay, discharging employees,
or otherwise discriminating in regard to hire or tenure of em-
ployment or any term or condition of employment, to discour-
age membership in the Office and Professional Employees
International Union, Local 14-32, AFL–CIO, or any other labor
organization.
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of their rights under Sec-
tion 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days of the date of this Order, offer Bernadette
Moyer full reinstatement to her former position or, if that posi-
tion no longer exists, to a substantially equivalent position,
without prejudice to her seniority or any other rights or privi-
leges previously enjoyed.
(b) Make Bernadette Moyer whole for any loss of pay and
other benefits she may have suffered by reasons of the dis-
crimination against her, in the manner described in remedy
section of this decision.
(c) Within 14 days of the date of this Order, remove from its
files any reference to the unlawful suspension of sick pay to
and the unlawful discharge of Bernadette Moyer, and within 3
days thereafter notify her in writing that this has been done and
that such personnel actions will not be held against her in any
way.
(d) Preserve and, within 14 days of a 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
or useful in analyzing the amount of backpay due under the
terms of this Order.
(e) Within 14 days after service by the Region, post at its fa-
cilities in Philadelphia, Pennsylvania, and Pittsburgh, Pennsyl-
vania, copies of the attached notice marked “Appendix.”38 Cop-
ies of the notice, on forms provided by the Regional Director
for Region 4, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places, including
all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these pro-
ceedings, the Respondent has gone out of business or closed the
facility involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed by the
Respondent at any time since August 5, 1996.39

38 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 Na-
tional Labor Relations Board” shall read, “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
39 This is the date of the first unfair labor practice found, and the date
on and after which Moyer’s fellow employees were exposed to the
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
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 violated the
National Labor Relations Act and has ordered us to post and abide
by this notice.

WE WILL NOT suspend your sick pay, discharge you, or oth-
erwise discriminate in regard to your hire or tenure of employ-
ment or any term or condition of employment, to discourage
membership in the Office and Professional Employees Interna-
tional Union, Local 14-32, AFL-CIO, or any other union.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of your rights under the
Act.
WE WILL, within 14 days from the date of the Board’s Order,
offer Bernadette Moyer full reinstatement to her former job or,
if that job no longer exists, to a substantially equivalent posi-
tion, without prejudice to her seniority or any other rights and
privileges previously enjoyed.
WE WILL make Bernadette Moyer whole, with interest, for
any loss of pay and other benefits resulting from the discrimi-
nation against her.
WE WILL NOT, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlawful
suspension of Bernadette Moyer’s sick pay, and to her unlawful
discharge, and within 3 days thereafter, notify her in writing
that this has been done and that such suspension and discharge
will not be held against her in any way.

effect of their commission. See Syncor International Corp., 324 NLRB
8 (1997); Aiken Underground Utility Services, 324 NLRB 187 (1997).
Cf. Quebecor Printing Dickson, Inc., 323 NLRB 137 (1997); Retlaw
Broadcasting Co., 324 NLRB 138 (1997); Industrial Construction
Services, 323 NLRB 1037 (1997); Paperworkers Local 1048 (Jefferson
Smurfit Corp.), 323 NLRB 1042 (1997); King Broadcasting Co., 324
NLRB 332 (1997); Trinity Transportation Corp., 323 NLRB 1091
(1997).