Park General Clinic

National Labor Relations Board - Board Decisions

Jun 17, 1975

218 N.L.R.B. 540 (N.L.R.B. 1975)

540 DECISIONS OF NATIONAL
Richard M. Brown, D.O. and Donald R. Janower,
D.O., a Co-Partnership d/b/a Park General Clinic
and Local 79, Service Employees International
Union, AFL-CIO. Case 7-CA-11533
June 17, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND PENELLO
On February 28, 1975, Administrative Law Judge
Michael O. Miller issued the attached Decision in
this proceeding. Thereafter, the Respondent and
General Counsel filed exceptions and supporting
briefs, and the Respondent filed a reply brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order as
modified' herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge as
modified below and hereby orders that the Respon-
dent, Richard M. Brown, D.O. -and Donald R.
Janower, D.O., a Co-Partnership d/b/a Park Gener-
al Clinic, Detroit, Michigan, its agents , successors,
and assigns, shall take the action set forth in the said
recommended Order, as so modified:
1. Substitute the following for paragraph 2(a):
"(a) Offer to Joan Stein immediate and full
reinstatement to her former job or, if that job no
longer exists , to a substantially equivalent position,
without prejudice to her seniority or other rights and
privileges previously enjoyed, and make her whole
for any loss of earnings she may have suffered by the
reason of the discrimination against her in the
manner set forth in the section of this Decision
entitled `The Remedy: "
2. Substitute the attached notice for that of the
Administrative Law Judge.
1 The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect . Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
218 NLRB No. 78
LABOR RELATIONS BOARD
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge or otherwise discrimi-
nate against any of you in order to prevent your
exercise of the right to engage in concerted
activities for the purpose of collective bargaining
or other mutual aid or protection. Nor will we by
such action discourage membership in or activi-
ties on behalf of Local 79, Service Employees
International Union, AFL-CIO, or any other
labor organization.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the
exercise of your right to form, join, or assist the
above-named Union or any labor organization, to
bargain collectively with representatives of your
own choosing, or to engage in other concerted
activities for the purpose of collective bargaining
or other mutual aid or protection or to refrain
from any and all such activities.
WE WILL offer Joan Stein immediate and full
reinstatement to her former job or, if that job no
longer exists, to a 'substantially equivalent one,
with backpay.
RICHARD M. BROWN,
D.O. AND DONALD R.
JANOwER, D.O., A CO-
PARTNERSHIP D/B/A
PARK GENERAL CLINIC
DECISION
MICHAEL O. MILLER, Administrative Law Judge: This
case was tried before me at Detroit, Michigan, on January
17 and 18, 1975, based upon a charge filed and served
upon Respondent on October 29 and 30, 1974, respective-
ly, and a complaint which issued on December 9, 1974.
The complaint alleged that Respondent had engaged in
unfair labor practices within the meaning of Section 8(a)(1)
and (3) of the Act. A brief from Respondent has been
received and duly considered.
Upon the entire record in this case including my
observation of the witnesses and their demeanor, I make
the following:
PARK GENERAL CLINIC 541
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Richard M. Brown, D.O.1 and Donald R. Janower, D.O.,
a Co-Partnership d/b/a Park General Clinic, hereinafter
referred to as the employer or Respondent, is engaged in
the Detroit, Michigan, area in the operation of proprietary
health care clinics and the rendering of osteopathic
medical services to patients. During the year ending
December 31, 1973, a representative period, Respondent in
the course and conduct of its business operations received
gross revenues in excess of $750,000 from the rendering of
medical care and other patient services. A substantial but
unspecified portion of the clinic's income was received
from insurance companies and governmental health care
programs . During the same period of time, Respondent
purchased and received drugs and medical supplies valued
in excess of $25,000, in excess of $15,000 of which were
received directly from points outside the State of Michigan.
The complaint alleges, Respondent admits, and I find that
it is an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act and that it will effectuate
the policies of the Act to assert jurisdiction herein?
H. THE LABOR ORGANIZATION ]INVOLVED
medical care on an out-patient basis and are staffed by
doctors of osteopathy, medical assistants , X-ray techni-
cians, receptionists, and clerical employees: Stein was a
medical assistant.
Stein continued her employment with Park General until
July 27, 1974,3 at which time she left her employment
because of the imminent birth of a child.
Prior to her separation from Park General in July 1974,
Stein had been working 12 hours per week at an hourly
rate of $3.85 per hour. However, she was being paid for 15
hours per week. Substantial conflicting testimony was
offered concerning the origin and propriety of Stein
receiving and accepting pay for these extra 3 hours. One
hour's pay, it appears, was added by her employer because
of a babysitting problem. The other 2 hours merely
appeared on Stein's check at sometime in the past and was
assumed by her to be a raise in her weekly remuneration.
The employer contended that the last 2 hours had been
mistakenly included in her pay. Other than concluding that
the additional 2 hours pay given to Stein prior to July 27,
1974, was in fact regularly included in her pay but was not
intentionally so given, I make no findings concerning the
propriety of Stein's receipt of these monies.4
The complaint alleges , Respondent admits, and I find
that Local 79, Service Employees International Union,
AFL-CIO, herein the Union, is a labor organization within
the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Issues
The issues herein, simply stated, are whether Respondent
discharged Joan Stein, its employee, because she had
engaged in union activity or other concerted activity for
the mutual aid and benefit of employees, which conduct is
protected under Section 8(a)(1) and (3) of the National
Labor Relations Act, as amended, herein the Act. As
discussed in more detail infra, I find that General Counsel
has established, by a preponderance of the evidence, that
Joan Stein was discharged because she enlisted the aid of
another employee in support of a grievance. This, I find,
was an activity protected by the Act, and her discharge was
therefore a violation of Section 8(a)(1) of the Act. I also
find that the discharge was the result of Mrs. Stein 's union
activity, and thus constituted a violation of Section 8(a)(3).
B. Introduction - the Factual Setting
Joan Stein first became employed by Respondent at its
Lincoln Park Clinic in June of 1970. Lincoln Park is one of
six clinics in the Detroit, Michigan, area owned by Doctors
Brown and Janower. The clinics provide osteopathic
1 Doctor of Osteopathy.
2 Quoin and Ramstad Clinic, 173 NLRB 1185 (1968).
3 All dates hereinafter are 1974.
* Respondent did not contend that it terminated Mrs. Stein because she
had been dishonest in accepting these monies. Moreover, a resolution of this
issue is not relevant to the credibility determinations herein, because, even
assuming, arguendo, that it was improper for Stem to accept these monies,
C. Mrs. Stein 's Return to Park General
Most unfortunately, the child born to Mrs. Stein in
August did not long survive its birth. Mrs. Stein decided to
return to work. On October 14, Stein and her husband
went to Respondent's office and talked with Dr. Brown,
who approved her request to return as of October 21.
Following her conversation with Dr. Brown, Mrs. Stein
and her husband went to the office of Mervin Sternberg,
Respondent's business manager. They discussed her return
to work and Mrs. Stein described the manner in which her
prior wages had been computed. She stated that she
expected to continue to be so paid and offered the
alternatives of a raise in her hourly rate of pay or a
continuation of her pay on the same basis as she had
received it prior to July 1974. Sternberg stated that this was
the first he had heard of this arrangement, that he would
look into it, and that he would work it out.
After this meeting, Sternberg began an inquiry to
determine what Stein's pay had been and for how many
hours she had been paid per week during the prior period
of employment. He determined that in, fact she had been
paid for 3 hours more per week than she had been
working.5
such conduct falls short of the conviction of a felony or misdemeanor
amounting to crimen false required to discredit a witness . N.LR.B. v.
Baldwin Locomotive Works, 128 F .2d 39 (C.A. 3, 1941).
5 Contrary to Respondent's contention in his brief, the record does not
reflect that Sternberg was told , at that time, that Dr. Janower and Dr.
Brown would not authorize payment of more than 12 hours ' pay for 12
hours' work.
542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D. The Events of the Week of October 21 Through
October 25, 1974
Joan Stein returned to work on Monday, October 21.
That morning she had the first of a week-long series of
conversations with Sternberg concerning her rate of pay.6
Sternberg questioned her about the 3-hour differential
between her pay and the hours worked. Stein confirmed
what 'Sternberg had learned from Dr. Brown and Dr.
Janower, that one -hour had been added to her pay in
consideration of a babysitting problem. She informed him
that the other 2 hours had appeared on her paycheck
without explanation and that she had not questioned the
inclusion of these hours. Sternberg asked Stein whether she
considered it dishonest to have accepted this additional
pay and she replied that she did not. Sternberg told Stein
that he was not going to pay her for hours not worked but
did offer to raise her rate of pay to $3.94 per hour, which,
as he told her, was the rate Rosemary Mazglad, also a
medical assistant, was receiving . Mrs. Stein did not agree
with or accept what Sternberg told her concerning her rate
of pay.
Stein and Sternberg had a second conversation in regard
to the pay issue on Tuesday, October 22. This conversa-
tion, I find, was initiated by Stein. During the conversa-
tion, which lasted between 30 and 45 minutes, Stein
repeatedly referred to the rate of pay offered her as a
reduction in pay. Sternberg reiterated that he was not
going to pay for hours not worked and that he did not see
this as a reduction -in pay. Sternberg characterized Mrs.
Stein as being both more upset and more angry than she
had been on Monday.
Stein's recollection of the Tuesday meeting with Stern-
berg conforms fairly closely to Sternberg's recollection of
the Thursday meeting discussed infra. She recalled howev-
er that at the conclusion of the Tuesday meeting she stated
that she would have to think about what she had been told
and did not know whether she would return to work on
Thursday.
Park General's clinics-- are not open for patient care on
Wednesdays. On Wednesday, October 23, 1974, Stein
telephoned James Thornburg, business representative for
the Union and explained what had happened to her. He
6 Stein ' acknowledged that she may have had a conversation with
Sternberg on Monday, October 21. However she did not recall any
conversation with him on that date regarding her rate of pay. Sternberg,
however, testified affirmatively that a conversation on this subject took
place on Monday, October 21 . The record indicates , without contradiction,
that throughout the week of October 21 to 25, Joan Stem was in an upset or
difficult mental and emotional state, reflected by the fact that on several
occasions , while discussing her rate of pay, she became considerably choked
up and/or broke down in tears. Steinberg's recollection was unencumbered
by an anxious emotional state and Ins testimony concerning this
conversation was consistent with his earlier testimony to the effect that he
investigated the accuracy of Stein's October 14 statement to him concerning
her pay. I have noted that Stein 's version of the conversation she alleged to
have had with Sternberg on Tuesday, October 22 , included all of the matters
Sternberg related to have occurred on October 21 and October 22, 1974.
Also noted was Rosemary Mazglad's observation of Stem going to
Steinberg's office on October 21. I therefore credit the testimony of
Sternberg over Stein 's inability to recall the conversation and find that Stein
and Sternberg had a conversation concerning her rate of pay on October 21.
7 Stem had also contacted the Regional Office of the National Labor
Relations Board on either Tuesday or Wednesday . She testified that she
discussed the alleged reduction of her wages with the "Officer of the Day"
stated that he would send her union literature and asked
her to find out how many employees would be interested in
considering union membership.
On the same day Stein called Rosemary Mazglad, the
employee whose wages Sternberg had mentioned in
comparison to Stein's. By her own testimony, Stein was
very upset by this time. She told Mazglad that her wages
had been reduced because of Mazglad's and inquired if
anything could be done. She also informed Mazglad that
she had looked into the possibility of a union and inquired
of Mazglad's interest therein. Stein then called Jerilyn
McMahan, another medical assistant at Lincoln Park.
McMahan credibly testified that Stein explained about the
decrease in her rate of pay, indicated that she felt that this
was unfair and "felt that this might happen to another
employee, and she would not like this-to happen to anyone
else." Mrs. Stein arranged for a meeting at McMahan's
home later that afternoon.
Stein, Mazglad, and McMahan met at McMahan's house
at 4 p.m. on October 23. The three -medical assistants
discussed Stein's pay and indicated that other employees
might be unhappy with their pay. Stein told them that she
had called the Union for literature and information. They
discussed contacting other employees to determine wheth-
er they might be interested in unionization.?
On Thursday, October 24 Stein and Sternberg once
again discussed Stein's rate of pay.8 They argued again
over whether the refusal to pay her on the basis under
which she had previously been paid was a reduction in pay
or a correction of an error previously committed. Sternberg
reiterated that he thought it had been dishonest of Stein
not to bring this to Respondent's attention earlier. He
again indicated that he would pay her the highest rate for
the medical assistant's position ($3,94 an hour) but that he
would only pay her for the hours she actually worked. At
the conclusion of this hour long conversation Sternberg
indicated that Stein" could appeal, to, Dr. Brown` or Dr.
Janower. She asked to do so and Dr. Janower was called to
Sternberg's office from the medical floor. Dr. Janower
stated immediately, that he was familiar with the situation
and that he agreed with Sternberg as to what Stein's hours
and rate of pay would be. Throughout this meeting Stein
and was informed that such actions did not come within the purview of the
National Labor Relations Board. She also told the "Officer of the Day" that
she intended to contact a union and wished a record-made for her future
protection. Stem's contact with the National Labor Relations Board during
that week is not alleged as a causative factor in her discharge . However, it
does show, to a certain extent, her depth of feeling in regard to what she
deemed to be an unjust decrease in her wages . I specifically reject
Respondent's inference in brief that there was anything sinister in her call to
the Labor Board. Recourse to this Agency is to be protected, not
discouraged. .
a Steins description of a conversation with Sternberg on Tuesday,
October 22 is substantially similar to Steinberg's description of the
Thursday, October 24 conversation. I am included to credit Steinberg's
recollection because, as previously noted, Mrs. Stein's emotional state
throughout the week was such as might reasonably be expected to interfere
with her powers of recollection as to such secondary matters as the specific
day on which a statement was made On the other hand Sternberg was very
specific about the time , date and content of the conversations and indicated
that his memory was aided by connecting the conversation with another
event, the transfer of an employee to his office , which occurred on a date
certain.
PARK GENERAL CLINIC 543
was argumentative, loud, aggravated, and increasingly
upset.
On Thursday, October 24, Mrs. Stein received the
literature and authorization cards she had requested from
the Union. When she went to work on Friday, October 25,
she informed McMahan that she had the literature and
talked to two other employees to determine whether they
would be interested in union representation.
On duty at Lincoln Park on Friday morning was Michael
Sampson, D.O. Dr. Sampson had on occasion treated Mrs.
Stein and members of her family professionally and had a
friendly relationship with Stein and other medical assist-
ants at the clinic. During the course of the morning of
Friday, October 25 Stein had a series of three conversa-
tions with Dr. Sampson. Initially, Dr. Sampson merely
asked Stein how she was, to which she replied "I was upset
at the time and I told him don't ask." Shortly thereafter,
Stein apologized to Dr. Sampson for having been so abrupt
earlier and explained that she was upset.. In response to his
inquiry as the reason for her upset state, she explained the
wage decrease . Dr. Sampson indicated that he had not
heard of this before and, according to the testimony of
Stein as corroborated by Mazglad and McMahan, indicat-
ed that he would look into it for her .9
At around noon, Stein initiated a third conversation with
Dr. Sampson in the privacy of a vacant patient room. She
told Dr. Sampson "I had called a union representative
because of my wages" and that she had discussed this with
other employees. She told him that because an insufficient
number of employees had indicated an interest in the
Union she was not going to pursue the matter any further.
To this point the testimony of Stein and Sampson are in
agreement . Mrs. Stein further testified however that she
told Sampson about her decision to terminate any union
activity so that management, particularly Mr. Sternberg,
would not learn about the union activity "by way of the
grapevine." She told him that she would prefer that they
knew it from her directly. According to Stein, the
conversation concluded with Dr. Sampson stating that he
would go to lunch with Mr. Sternberg and would try to
find out more information concerning her wages. Mrs.
Stein then observed Dr. Sampson talking to Michael
Linten, Sternberg's field representative, heard her name
mentioned, and saw Linten go upstairs, where offices
including that of Sternberg are located. Mrs. Stein's
testimony in this regard is undenied. Dr. Sampson's
testimony is that Stein told him about her union activity
and her intention to drop such activity, but asked him to
keep it confidential. He denied relating her conversation to
Mr. Sternberg. In regard to this conversation, I credit the
testimony of Stein. Had Mrs. Stein wished to keep her
union activity confidential, as Dr. Sampson testified, it
would have been unlikely that she would have discussed it
with him in view of her belief that he was a member of
management.
9 Dr. Sampson's recollection of this conversation is not in substantial
conflict with that of Stem, Mazglad, and McMahan. He recalled telling
Stem that he would attempt to get a clear explanation for her but added that
he could not do anything in regard to her rate of pay as that was a matter
not within his control
10 The foregoing description of this conversation comes substantially
Still on Friday, Mrs. Mazglad observed that Stein
continued to be upset in regard to her pay. Because their
earlier conversation had led Mazglad to believe that Stein's
pay had been reduced because of her own, Mazglad asked
Stein whether she thought "it would do any good if I went
up and talked to Sternberg with you." Initially Stein
declined Mazglad's offer. When Mazglad repeated the
offer however, she accepted it. Mazglad's stated intent in
making this offer was to assist Stein. She had not intended
to discuss any personal dissatisfaction with the rates of pay
with Sternberg.
Mrs. Stein and Mazglad went to Sternberg's office in
the early afternoon of Friday, October 25, and had a
conversation which lasted approximately an hour. Mrs.
Mazglad told Sternberg that she was not being hurt by
Stein receiving a higher rate of pay and that she did not
want Stein's pay to be reduced because of her. Mr.
Sternberg explained that it was not only Mazglad's pay
rate but that of two other medical assistants who were
making the same rate and that at the present time he could
not go above that pay scale. At some point in the
conversation Stein made a plea for Sternberg to give
Mazglad a higher rate of pay. Sternberg replied that that
was not Stein's concern and that the discussion was in
regard to Stein's rate of pay. Stein apologized and
indicated that she was merely conveying her personal
feelings. Mazglad told Sternberg that the other employees
would like wage increases semianually rather than annual-
ly as was Respondent's practice at that time. Sternberg told
both medical assistants that the rates of pay and the timing
of wage increases, as well as other working conditions,
would be looked into in December.
Sternberg asked Stein whether she would accept the
$3.94 per hour rate which Mazglad and certain other
medical assistants were receiving. Stein replied that she
believed that she deserved that plus an additional 25 cents
an hour due her because of the babysitting problem and
the additional 2 hours pay which she had previously been
given. Sternberg again asked her how the extra 2 hours pay
had come about and questioned her honesty in accepting
it. Stein repeated her earlier answers.10
During this conversation Stein told Sternberg that she
"was sure that Doctor Sampson had told him what, I had
told Doctor Sampson." Sternberg did not answer ,with a
"yes" or "no." Stein took his "uh huh" as an affirmative
answer. She also told him of her telephone call to the
Regional Office of the National Labor Relations Board.
Shortly after Stein and Mazglad left Sternberg's office,
Mrs. Stein's husband called Sternberg and asked:to discuss
his wife's pay and problems. A meeting was set for 5:30
p.m. Sternberg testified that he made a decision to
terminate Stein at this time but decided to hold up on
effectuating this decision until after his meeting with Mr.
Stein. He waited for Mr. Stein until 7:30 p.m., but Mr.
Stein never showed up.
from the testimony of Rosemary Mazglad . This testimony, from a
disinterested witness still employed by Respondent , was in substantial
agreement with major portions of the testimony of both Stein and Sternberg
and is worthy of belief as the best representation of what took place during
this meeting. See, e.g., Georgia Rug Mali 131 NLRB 1304, fn. 2 (1961).
544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As previously noted, Joan Stein had earlier concluded
that an insufficient number of employees were interested to
warrant further pursuit of union representation. When she
reported this to Union Representative Thornburg on
Friday, he asked her to secure signed authorization cards
from those who were interested and to mail the names and
addresses of other employees to hun. Shortly before the 6
p.m. closing time at the clinic, Stein returned to the clinic
and gave out union cards, in the waiting room, to several
employees.11 She asked one employee to hand some out to
other employees in the office, and requested that the signed
cards be brought to her at her vehicle in the parking lot.
Joan Stein and her husband waited in the parking lot
until around 6:30 p.m. She received nine or ten signed
pledge cards and, while there, observed Dr. Sampson
coming out o? the clinic. She did not know, however,
whether Dr. Sampson or any members of management
observed her.
E. The Discharge
Mrs. Stein 's next workday was Monday, October 28.
She arrived at the clinic just prior to 10 a.m. and was
informed that Sternberg wanted to see her. After waiting
until Sternberg was alone in his office she went in and the
following conversation took place: 12
Mr. Steinberg told me that the prior week was one of
the worst weeks he had ever experienced. And, then I
told him that I agreed with him, it was one of the worst
experiences for me also. He said that on Friday, my
bringing Rosemary up to see him was not proper. I
interrupted him and . . . after I had agreed with Mr.
Sternberg that the prior week had been a very
uncomfortable week for both of us he told me that he
did not think it was right that I brought Rosemary up
to the office to talk to, him on Friday. At that point I
interrupted him and told him that Rosemary had asked
me to come up with her. It was not the way he said it.
And, he basically told me that no matter who asked
who to come up to the office, it was still my
responsibility. He told me that my husband's calling
the office, making an appointment to come and see
him, was not really called for. He said that he waited I
believe, until 7 o'clock that night, and my husband
never showed. I told Mr. Sternberg that I did not want
my husband to call, and that I felt the reason why he
did not show was because he did not want to make any
of the matters worse than they were already. I agreed
with him that he should have called and canceled his
appointment, which he did not do ... Mr. Sternberg
told me that he felt, and the doctors had felt that they
had been more than kind to me as far as the past week,
and they had - I don't know if I'm using the right
word when I say, kind. They felt that they had been fair
to me and that I had not reciprocated in the same
manner. And when he said that I told him that if they
11 I reject Respondent's contention that Stein lied when she earlier told
Dr. Sampson that she was not going to pursue the union activity further. At
that time I find, that was her intention . She exercised the human perogahve
to change her mind , after discussing the matter with Thornburg.
12 The uncontradicted testimony of Joan Stein.
had in fact told me about my wage decrease before I
started work, or, on the morning that I started work,
that the whole week never would have happened. I told
him that that was one thing that I felt they had - one
kindness they had not shown me, and that was why I
was upset. He told me that my actions nevertheless had
shown that they had no alternative but to terminate my
services.
F. Evidence Relating to Animus
During the noon hour on Monday, October 28, shortly
after Joan Stein's discharge, Jerilyn McMahan and two
other medical assistants appeared at Mr. Sternberg's office
and asked to speak with him. McMahan told Sternberg:
We were unhappy, I explained to him that we were
unhappy over her [Stein's] termination; that we felt we
should come up and let him know that we were
unhappy about it. And our main purpose to go up there
was to protest her being terminated. And, we were
letting him know that we didn't like it.
Q. (By Mr.. Lewis) Did he make any response to
what you told him?
A. Only that this is our right to disagree with him.
Q. Now is this the extent of his remarks? Did he
indicate to you anything which was not your right?
A. No. Only that we had suggested that we were
upset enough that we might leave. He said that this, as
an employer, he could not tolerate. That he was forced
to take action against us if we did so.13'
Joan Stein testified to an event in 1971 or 1972 which
General Counsel contended evidences union animus. At
that time, during a conversation between Dr. Janower and
several of the medical assistants, Stein made a reference to
unionization and Dr. Janower quickly replied that as long
as he was at the clinic, there would never be a union. The
testimony stands undenied and is credited.
IV. ANALYSIS AND CONCLUSIONS
A. Was Mrs Stein Discharged Because of her
Union or Protected Concerted Activities
Joan Stein's venture into union activity was quickly
followed by her discharge, thus giving rise to an inference
that the discharge was the result of such activity. In order
to stand however, this inference must be supported by
evidence that Respondent had knowledge of such activities
and harbored animus toward those who would so engage.14
1. Knowledge of the union activity
To be found herein, knowledge of the union activity
would have to derive from Stein's October 25 conversation
with Dr. Sampson or be established from the circum-
13 This undemed testimony, which comes from an individual in the
employ of the party against whom it may be used, is credited. Georgia Rug
Mild supra.
14 See, e.g. Bayliner Marine Corporation, 215 NLRB No. 11 (1974).
PARK GENERAL CLINIC 545
stances surrounding the union activity itself. There is no
direct evidence of such knowledge.
a. Imputed knowledge - Dr. Sampson 's supervisory
status
Mrs. Stein "confessed" her union activities to Dr.
Sampson in an effort to protect herself from a discrimina-
tory discharge . She wanted Respondent to learn from her
rather than from the "grapevine," that she had engaged in
these activities and to learn that, because they had borne
no fruit, she was ceasing to pursue them. She deemed Dr.
Sampson to be a member of management or at least a
conduit thereto.
If Dr . Sampson is a statutory supervisor, as contended by
General Counsel, his knowledge of Joan Stein 's activities
would be imputed to Respondent.15 Thus, consideration of
Dr. Sampson's status is warranted . The record reflects that
Dr. Sampson works at the Lincoln Park Clinic on Fridays,
at which time he is the more senior of the two doctors of
Osteopathy present. In the course of their duties, Dr.
Sampson and the other doctors give instructions to the
medical assistants , X-ray technicians , and receptionists
concerning what they are to do for the various patients
under the doctor's care . These include directions to
administer medications and injections, give electrocardio-
gram examinations , draw blood , schedule patients for tests,
arrange for examinations by specialists, arrange for
hospital admissions, take X-rays, and take actions with
respect to patient charts . The record reflects that if any of
these functions were to be performed improperly, the
doctor could call this to the attention of the medical
assistant or X-ray technician and direct that it be
performed properly, then and in the future. The doctors
might also admonish medical assistants whose tardiness
delays them in the performance of their medical duties.
The medical assistants are hired by Sternberg or his field
representative, Michael Vinten . They are neither inter-
viewed nor hired by the doctors. While no one is
designated as a supervisor at any of the clinics ; Sternberg
or Vinten spend a portiom of every workday at each clinic.
In case of an emergency, Sternberg or Vinten would be
called and can reach any of the clinics within 25 minutes.
Sternberg handles all matters pertaining to employee
relations and has directed the doctors that they are to leave
this function to him. The record contains uncontradicted
testimony that Dr. Sampson is not empowered by
Respondent to hire , fire, transfer, demote, reward,rd, or
otherwise affect the tenure or remuneration of other
employees. He has made some recommendations in regard
to the tenure or rate of pay of certain medical assistants.
However such recommendations have carried little weight,
and, if effectuated at all, were effectuated only subsequent
to an independent investigation by Sternberg.
Dr. Sampson works at various clinics for Park General
pursuant to a schedule which he receives each week. He
generally works at the Woodward Clinic for 3 or 4 days per
week and his responsibilities at that clinic are essentially
the same as at Lincoln Park . On one occasion however,
according to Stein , sometime in April or May of 1974,
Sampson told her that he was in charge at the Woodward
office.
Dr. Sampson owns no portion of the Park General
Clinic business operation and is paid an annual salary. His
income is not dependent upon the number of patients he
sees . The medical assistants, X-ray technicians, and
receptionists are hourly rated employees . The doctors
receive certain insurance benefits which are not provided
for hourly paid employees.
The relationship of the osteopathic physicians employed
by Respondent to the medical assistants and X-ray
technicians is, I find , that of more skilled employees to
those with lesser skills . Indeed, as the very job title implies,
it is inherent in the functions of medical assistants to assist
and take directions from the doctors . Such directions,
while based upon the skill and learning of the doctors, are
routine, at least in the context of a medical clinic. As the
Board stated in Doctors Hospital of Modesto, Inc., a wholly
owned subsidiary of National Medical Enterprises, Inc., 183
NLRII 950 (1970), an analytically analogous situation:
The Employer's registered nurses are a highly trained
group of professionals who normally inform other,
lesser skilled , employees as to the work to be performed
for patients and insure that such work is done. But,
their daily on-the-job duties and authority in this
regard are solely a product of their highly developed
professional skills and do not , without more, constitute
an exercise of supervisory authority in the interest of
their employer.
Based upon the foregoing and the record as a whole I
conclude that Dr. Michael Sampson is an employee of
Respondent and does not possess the indieia of supervisory
status within the definition of Section 2(11) of the Act.
Accordingly, Dr. Sampson's knowledge of Joan Stein's
union activity cannot be imputed to Respondent.
b. Knowledge based upon eircumstantidl eviderce
Knowledge of union activity need not always be
established by direct evidence. The Board and the courts
have long held that reliance may be placed upon
circumstantial evidence and that knowledge may be
inferred from the record as a whole.16
In the instant case two factors, other than the Employer's
denials, weigh against an inference of knowledge. First,
there is evidence that the employees intended to engage in
these activities in secrecy. Second is evidence that the
Employer did not have supervisors located so that they
might, without engaging in unlawful surveillance, observe
the union activity. Offsetting these fdctdrs, and militating
toward a fording of knowledge, was evidence that, in fact,
the union activity was engaged in openly, at least on
Friday evening, October 25. On that date, Joan Stein
distributed and caused to be distributed union cards and
literature to a majority of the Employer' s small comple-
ment of employees in the clinic 's waiting room and office.
15 See, e.g. Montgomery Ward & Co., 115 NLRB 645, 647 (1956), affd.
242 F .2d 497,501 (C.A. 2, 1957).
16 See, e.g. Midland Container Corp., 190 NLRB 328 (1971); Wiese Plow
Welding Co., Inc., 123 NLRB 616 (1959); F. W. Woolworth Co. v. N. LR.B.,
121 F.2d 658,660 (C .A. 2,1941).
546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sternberg was present in the building at the time, waiting
for Stein's husband.
Moreover, I do not credit Dr. Sampson's statement that
he did not repeat Stein's statements to Sternberg. While he
testified that he deemed his - conversation with her to be
confidential, he was observed, almost immediately after
that conversation, in conversation with Linten, Sternberg's
field representative (and a supervisor admittedly empow-
ered to hire medical assistants). Stein's name was men-
tioned. No other explanation was offered or is plausible
except that Dr. Sampson was relating Stein's conversation
to Linten. I would conclude from this undenied occurrence
that Dr. Sampson told Linten of Stein's activity. This
would establish the requisite knowledge in itself. It also
contradicts Dr. Sampson's claim that he held confidential
that which Stein had told him. Further, within the hour,
Dr. Sampson and Sternberg lunched together. Later, when
Joan Stein asked Sternberg whether Dr. Sampson had told
him of their conversation, Sternberg answered in a manner
normally understood to be an affirmative response. Had
Dr. Sampson not related the conversation to Sternberg, a
more logical response for Sternberg to make would have
been either a denial or a question as to what conversation
Stein had reference.
I note also that Sternberg was aware of Stein's telephone
contact with the National Labor Relations Board. This
information would have alerted him to the possibility of
union activity.
Finally, I note that in the discharge interview, Sternberg
told Stein that he felt that she had not been "fair" to the
employer and that her "actions" had shown that Respon-
dent had no alternative but to discharge her. This
language, while ambiguous, would appear to refer to more
than Stein's wage complaint. An employee's complaint
about her wages, while possibly unreasonable or unjusti-
fied, would not likely be termed "unfair," and the use of
the plural "actions" indicates that something in addition to
her wage complaint was on Sternberg's mind. The only
other "actions" engaged in by Stein were her union
activities and her accompanying of Mazglad to Sternberg's
office, both of which I find to be protected by the Act.17
On balance, I therefore conclude that the circumstantial
evidence is sufficient to warrant a conclusion that
Respondent had knowledge of Joan Stein's union activity.
2. Animus
The joining together of employees for the aid and
protection of any or all of them is the essence of unionism.
The record, while containing no evidence of recent
expressions of animus specifically directed against formal-
ized labor organizations, does establish animus toward
employees acting in concert. The animus, I fmd, was
demonstrated by Sternberg in his statements to Stein at the
time of her termination, objecting to and holding her
responsible for the presence of Mazglad at their Friday
meeting, and in his statements to other medical assistants
on Monday, after Stein's termination, threatening them
with retaliatory action if they concertedly protested Stein's
discharge by walking out 18 In view of these expressions of
animus, Dr. Janower's 1971 or 1972 statement to the effect
that there would be no unions at Park General while he
was there, while remote, was not isolated and is entitled to
at least slight weight as evidencing animus, which weight I
have accorded to it.
3. Was Joan Stein engaged in protected,
concerted activity
Joan Stein was discharged on Monday, October 28, the
first workday following the meeting between Stein,
Mazglad, and Sternberg. Indeed, Sternberg alleged that the
decision to discharge her was made almost immediately
after that meeting. What then was there about this meeting,
as distinguished from all of the other confrontations that
week, to bring about the ultimate sanction in the employee
relations arsenal? The answer, at least in substantial part, I
fmd, is to be found in Sternberg's statement upon
discharging Stein, that it was not proper for her to have
asked Rosemary (Mazglad) to come up with her, and that
even if Rosemary had initiated the meeting, it was still
Stein's "responsibility." That this was a substantial factor
in Sternberg's decision is evidenced by his,emphasis of it in
that conversation. It is also evidenced by Sternberg's
animosity toward concerted action, as demonstrated by his
threat to several of the medical assistants when they
threatened to walk out in protest over Stein's discharge as
previously discussed.
Was, then, the meeting of October 25 concerted activity
for the purposes of mutual aid or protection such that a
discharge for participation therein would be entitled to the
protections of the Act.
Two employees were acting together at least to resolve
the grievance of one of them. General Counsel contends
that the meeting was held in regard to the wages of at least
four employees. This contention, I find, is belied by the
testimony of Stein and Mazglad. Their intentions were
solely to speak to Sternberg about Stein's rate of pay and
any mention of the rate of pay of other employees was
incidental to the purposes of the meeting.
This conclusion, however, does not complete the inquiry,
for General Counsel further contends that even if, the
meeting was solely concerned with Mrs. Stein's wages, the
activity was both concerted and protected. In these
contentions, the General Counsel is supported by a long
and venerable line of authority. Judge Learned Hand,
speaking for the Second Circuit Court of Appeals, in 1942,
in the case of N.L.R.B. v. Peter Cailler Kohler Swiss
Chocolates Company, 130 F.2d 503, stated the following
principle at pp. 505-506:
When all the other workmen in a shop make common
cause with a fellow workman over his separate
grievance, and go out on strike in his support, they
1T These statements by Sternberg evidence motivation for the discharge activity herein nor St-berg's response, however, were framed with the
as well as knowledge of the union activities. legal niceties in mind. I find that Sternberg 's response connotes animus
rs In reaching this conclusion, I am not unmindful of the recent health toward both concerted and union activity. The October' 28 statement,
care industry amendments to the Act , proscribing, in Sec. 8(g), strikes and however, was not alleged as an independent unfair labor practice and I
picketing without notice, with certain exceptions . Neither the employees' make no finding in that regard.
PARK GENERAL CLINIC 547
engage in a "concerted activity" iFor "mutual aid or
protection," although the aggrieved workman is the
only one of them who has any immediate stake in the
outcome. The rest know that by their action each one
of them assures himself, in case his turn ever comes, of
the support of the one whom they are all then helping;
and the solidarity so established is the "mutual aid" in
the most literal sense, as nobody doubts.
This language was quoted with approval by the Supreme
Court in N.L.RB. v. Houston Insulation Contractors
Association, 386 U.S. 664, 666 (1967). See, also , Pauley
Paving Company, Inc., 200 NLRB 861 (1972), wherein three
employees who briefly stopped work to hear what had
happened to a fourth employee who had been discharged
were held engaged in a protected work stoppage; and B &
P Motor Express Incorporated, 171 NLRB 1289 (1968),
enfd. 413 F.2d 1021 (C.A. 7, 1969), in which a group of
employees who walked out in support of an employee who
had been discharged when she refused to work unless she
received a higher rate of pay were held to be engaged in a
protected work stoppage. See also Ross Valley Savings &
Loan Association, 194 NLRB 270 (1971), wherein it was
stated that concerted activity among employees requires
but a speaker and listener.
In the above-cited cases, the employees supported their
fellow employee by engaging in what the employers
considered to be work stoppages. In the instant case, Mrs.
Mazglad lent her support in a less strident, but no less
obvious, manner. It would not effectuate the purposes and
policies of the Act to accord protection to employees only
if they strike, and deny it to those who attempt to resolve
disputes by more peaceable means.
It also matters not to the resolution herein that Joan
Stein might have been wrong; that her complaint may have
been without merit and her demands unreasonable. The
merits of employee complaints are irrelevant to the
question of whether they are protected. Spinoza, Inc., 199
NLRB 525 (1972); Mushroom Transportation Co., Inc., 142
NLRB 1150, 1158 (1963), reversed on other grounds 330
F.2d 683 (C.A. 3, 1964). Also irrelevant is the unreasona-
bleness or lack of wisdom of the employees' decision to
engage in concerted activity. N.L.R.B. v. Washington
Aluminum Co., 370 U.S. 9 (1962); Detroit Forming Inc., 204
NLRB 205 (1973).
B. Conclusions - The Reasons for the Discharge
Respondent contended that Sternberg was frustrated and
annoyed by Joan Stein's refusal to accept his position in
regard to her pay and by her repeated arguments on that
issue . Such frustration and annoyance are both plausible
and understandable . I do not doubt that one of the reasons
for the discharge was this conduct by Stein. However, I
find, based upon a complete evaluation of the record
testimony and Respondent 's brief in the light of my
observation of the witnesses ' demeanor during the course
of the hearing, that Respondent was motivated to dis-
charge Joan Stein for two additional reasons, her union
activity and her protected concerted activity. Both of these
reasons were unlawful and both were substantial factors in
the decision to discharge Stein . Cf. Erie Strayer Company,
213 NLRB No. 45 (1974). As previously discussed,
Respondent disapproved of its employees acting concert-
edly for the benefit of any or all of them. Joan Stein was
engaged in both a concerted nonunion activity,.and union
activity. The former was engaged in during a face-to-face
confrontation with Sternberg and was expressly referred to
by him in the discharge interview. The latter, I have found,
was also known to Respondent and was impliedly referred
to in that same interview. Had but the one lawful reason
existed, I do not believe that Respondent would have
terminated Stein. In this regard I note that Sternberg
tolerated Stein's arguments for three consecutive workdays
without discharging her or even threatening to do so. Had
these arguments alone reached the point where, in
Stemberg's mind, they warranted discharge, or begun to
approach that point, it could reasonably and logically have
been expected that Sternberg would have so warned Stein.
Sternberg did not do this however, and the.breaking point
was not reached until Stein involved another employee in
protected concerted activity and engaged in conduct
which, I have found, gave rise to knowledge of Stein's
union activity.
I therefore find and conclude that the General Counsel
has established by a preponderance of the credible
evidence that Respondent discharged Joan Stein on
October 28, 1974, in violation of Sections 8(a)(1) and (3) of
the Act.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The unfair labor practices of the Respondent set forth in
section III, above, occurring in connection with its
operations - set forth in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow thereof.
VI. THE REMEDY
As I have found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and that it take the following affirmative
actions which are necessary to effectuate the policies of the
Act.
Having found that the Respondent discriminatorily
terminated Joan Stein, I shall recommend that the
Respondent offer her immediate and full reinstatement to
her former or substantially equivalent position without
prejudice to any seniority rights or other privileges she may
enjoy. Respondent shall make her whole for any loss of pay
she may have suffered by reason of the discrimination
against her by payment to her of a sum equal to that which
she would have received as earnings from the date of her
discharge until she is fully reinstated or receives a valid
offer of reinstatement less any net interim earnings. As no
allegation was made that the rate of pay offered Stein was
discriminatory I find that it is at that rate, plus any
increases given comparably paid medical assistants, that
her backpay should be computed. Backpay is to be
computed on a quarterly basis in the manner established
548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by the Board in F. W. Woolworth Company, 90 NLRB 289
(1950), with interest thereon at the'rate of 6 percent per
annum to be computed in the manner set forth in Isis
Plumbing & Heating Co., 138 NLRB 716 (1962).
On the basis of the foregoing findings of fact and upon
the entire record, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By discriminatorily terminating and refusing to
reinstate Joan Stein because of her activities on behalf of
the Union and because of her protected concerted
activities, Respondent engaged in and is engaging in unfair
labor practices affecting commerce within the meaning of
Section 8(a)(3) and (1) and Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law
and the entire record and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 1s
Respondent,, Richard M. Brown, D.O. and Donald R.
Janower, D.O., a Co-Partnership d/b/a Park General
Clinic, Detroit, Michigan, its officers, agents, successors
and assigns, shall:
1. Cease and desist from:
(a) Discharging employees and refusing to reinstate them
in order to discourage employees from engaging in any
union or protected concerted activities.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of
their rights to self-organization, to form labor organiza-
19 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions , and Order, and all objections thereto shall be
deemed waived for all purposes.
tions, to- join or assist Local 79, Service Employees
International Union, AFL-CIO, or any other labor
organization , to bargain collectively with representatives of
their own choosing, and to engage in concerted activities
for the purpose of collective bargaining or other mutual aid
or protection, or to refrain from any or all such activities.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer to Joan Stein immediate and full reinstatement
to her former or substantially equivalent position , without
prejudice to her seniority or other rights and privileges
previously enjoyed , and make her whole for any loss of
earnings she may have suffered by the reason of the
discrimination against her in the manner set forth in the
section of this Decision entitled "The Remedy."
(b) Preserve, and upon request, make available to the
Board or its agents for examination copies of all payroll
records, social security payment records and reports and
all other reports necessary to analyze the amount of
backpay due under this Order.
(c) Post at its facilities copies of the notice attached
hereto and marked "Appendix." 20 Copies of said notice,
on forms duly provided by the Regional Director for
Region 7 , after being duly signed by Respondent's
representatives shall be posted by the Respondent immedi-
ately upon receipt thereof and be maintained by it for 60
consecutive days thereafter in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
ensure that said notices are not altered , defaced, or covered
by any other material.
(d) Notify the Regional Director for Region 7, in writing,
within 20 days from the date of this Order , what steps the
Respondent has taken to comply herewith.
20 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals , the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."