St. Luke's Hospital

National Labor Relations Board - Board Decisions

Sep 24, 1993

312 N.L.R.B. 425 (N.L.R.B. 1993)

425
312 NLRB No. 80
ST. LUKE’S HOSPITAL
1 On March 24, 1993, Administrative Law Judge David L. Evans
issued the attached decision. The Respondent and the General Coun-
sel filed exceptions and supporting briefs. The Respondent filed an
answering brief.
2 No exceptions were filed to the judge’s findings that the Re-
spondent violated Sec. 8(a)(3) and (1) by issuing warning notices to
Anthony Yates on September 11, 1990, and February 7, 1991, be-
cause of his union or protected concerted activities and by issuing
a disciplinary memorandum to Thomas Blythewood on October 10,
1991, and by suspending Blythewood for a period of 3 days on Oc-
tober 14, 1991, because of his union or protected concerted activities
and that the Respondent violated Sec. 8(a)(1) by threatening
Blythewood with discharge because he filed a grievance.
The General Counsel and the Respondent have excepted to some
of the judge’s credibility findings. The Board’s established policy is
not to overrule an administrative law judge’s credibility resolutions
unless the clear preponderace 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.
1 Yates filed the charges in Cases 8–CA–23302, 8–CA–23524, 8–
CA–23637, and 8–CA–23685, on December 26, 1990, and April 5,
May 21, and June 17, 1991, respectively. Blythewood filed the
charge in Case 8–CA–24126 on November 26, 1991.
Saint Luke’s Hospital and Anthony Yates and
Thomas Blythewood. Cases 8–CA–23302, 8–
CA–23524, 8–CA–23637, 8–CA–23685, and 8–
CA–24126
September 24, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
The issues presented in this case are whether em-
ployee Anthony Yates was disciplined and discharged
in violation of Section 8(a)(3), (4), and (1) of the Act
and whether the Respondent threatened Yates because
of his grievance-filing activity in violation of Section
8(a)(1) of the Act.1
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and briefs and has decided to affirm the judge’s rul-
ings, findings,2 and conclusions and to adopt the rec-
ommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Saint Luke’s Hospital,
Cleveland, Ohio, its officers, agents, successors, and
assigns, shall take the action set forth in the Order.
Catherine A. Modic, Esq., for the General Counsel.
Joseph A. Rotolo, Esq., of Cleveland, Ohio, for the Respond-
ent.
DECISION
STATEMENT OF THE CASE
DAVID L. EVANS, Administrative Law Judge. This case
under the National Labor Relations Act (the Act) was tried
before me on August 31 and September 1–2, 1992, in Cleve-
land, Ohio. The case was initiated by charges that were filed
by Anthony Yates and Thomas Blythewood, as individuals,
against Saint Luke’s Hospital (the Respondent).1 On those
charges, General Counsel issued a series of complaints, the
last of which is a consolidated complaint dated February 28,
1992 (the complaint). Respondent duly filed answers admit-
ting that this matter is properly before the National Labor
Relations Board (the Board), but denying the commission of
any unfair labor practices.
As the answer admits, Respondent is a corporate health
care institution located at Cleveland, Ohio, where it provides
inpatient and outpatient professional medical care services.
The answer further admits that, in the course and conduct of
those business operations, Respondent annually derives gross
revenues in excess of $250,000, and it annually purchases
and receives at its facility, directly from suppliers located at
points outside Ohio, products, goods, and materials valued in
excess of $50,000. On these admissions, I find and conclude
that Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
As the answers further admit, I find and conclude that
International Union of Operating Engineers, AFL–CIO, Local
589 (the Union) is a labor organization under Section 2(5)
of the Act.
There are approximately 2100 employees employed at Re-
spondent’s hospital; the 25 employees of the maintenance de-
partment are represented by the Union. Respondent and the
Union are parties to a collective-bargaining agreement that
has grievance-and-arbitration provisions. Charging Party
Yates was, and Charging Party Blythewood still is, employed
in Respondent’s maintenance department.
The complaint alleges that, in violation of Section 8(a)(3)
and (4), Yates and Blythewood received warning notices and
suspensions and, in the case of Yates, discharge, because of
their grievance-filing activities and because of their filing un-
fair labor practice charges under the Act. The complaint fur-
ther alleges that, in violation of Section 8(a)(1), agents of
Respondent threatened employees (meaning Yates and
Blythewood) because of their protected concerted activities,
and that those agents also promised an employee
(Blythewood) benefits to forgo exercise of his Section 7
rights.
Respondent denies that the alleged 8(a)(1) conduct oc-
curred. Respondent also contends that the warning notices
and suspensions and Yates’ discharge were caused solely by
the misconduct of the two employees.
I. FACTS
Persons admitted to be Respondent’s supervisors, within
Section 2(11) of the Act, are:
James Amie, plant engineer
Roland Burke, maintenance department assistant di-
rector
Jacqueline Forrestall, labor relations vice president
Joseph Kajder, foreman
Edward May, institutional services vice president
426 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 Where I have found it appropriate and possible, rather than using
‘‘(sic),’’ I have entered, without notation, some minor grammatical
corrections of exhibits and testimony. Also, punctuation is supplied
for some quotations of transcript (mostly where one witness is
quoting himself or others).
3 Kajder was classified as a ‘‘general foreman,’’ but there were no
foremen subordinate to him at the time of these events.
Kenneth McGraw, maintenance department director
(until December 1990)
Govind Thakkar, maintenance department director
(since February 27, 1991)
Robert Wachtl, maintenance department assistant di-
rector
Yates’ case (as I shall call the set of facts surrounding his
discipline and discharge) involves two instances of alleged
violations of established attendance policy. Attached to the
current collective-bargaining agreement is an Appendix D
which is introduced by a statement that:
The following offenses and statements on absentee-
ism and tardiness are here listed for the convenience of
the employees, are not part of the collective-bargaining
agreement, and do not preclude the Hospital from es-
tablishing other rules.2
In a section entitled ‘‘Attendance,’’ Appendix D states:
Notice of Absence
At least one hour before scheduled starting time on
each day of absence, an employee finding it impossible
to report for duty at the assigned time must so inform
their supervisor or department by telephone or message.
Tardiness
The procedure for informing the supervisor or depart-
ment head of expected tardiness is the same as in the
case of an absence.
Both Yates’ case and Blythewood’s case involve the
issuance of warning notices. In a section entitled ‘‘Warn-
ings,’’ Appendix D of the collective-bargaining agreement
states that warnings may not necessarily be given before the
ultimate penalty of discharge, and whether warnings will be
given depends on the circumstances ‘‘as determined solely
by the Hospital.’’
Respondent utilizes forms entitled ‘‘Saint Luke’s Hos-
pital—Record of Warning or Disciplinary Action.’’ On each
form there is a box entitled ‘‘Action’’; it includes (with indi-
cated blanks for checkmarks and required information):
—Counseling only
—Warnings—# 1, 2, 3 [one to be circled]
Other (specify)lllll
—Suspension: (length)lllll
—Layoff; termination
Other action (specify)lllll
Then follow spaces for ‘‘Date of Incident’’ and ‘‘Date of
Conference.’’ Then, under ‘‘Reason for Discipline’’:
—Absenteeism —Uncooperative Attitude
—Tardiness —Discourtesy
—Unsatisfactory Job
Performance
—Failure to Follow
Instructions
—Insubordination —Unethical Actions
—Uniform
Regulations/Grooming
—Other (specify)lll
Then follow spaces for ‘‘Short Factual Explanation of Above
Incident.’’ After those spaces follow other spaces for the su-
pervisor’s and employee’s signatures.
A. Yates’ Case
At the time of his discharge on June 10, 1991, Anthony
Yates had been employed by Respondent as an incinerator
operator for 12-1/2 years. During his first 10 years of his
employment, Yates filed eight grievances. In his 11th year of
employment, Yates filed some 47 grievances. At some point
during September 10, 1990, Yates became an assistant stew-
ard for the Union. September 11, 1990, is the date of the
first alleged discrimination against Yates because of his
grievance-filing activity.
As an incinerator operator, Yates reported directly to Joe
Kajder.3 Kajder reported to Wachtl; Wachtl reported directly
to Kenneth McGraw until McGraw left Respondent’s employ
in December 1990. McGraw was succeeded on February 27,
1991, by Govind Thakkar. Between McGraw’s leaving and
Thakkar’s arrival, Institutional Services Vice President Ed-
ward May also served as director of the maintenance depart-
ment.
The complaint alleges that: (1) on September 11, 1990,
Yates was issued a written warning notice in violation of
Section 8(a)(3); (2) on February 7, 1991, Yates was issued
a second written warning notice in violation of Section
8(a)(3) and (4); (3) on May 20, 1991, Yates was threatened
by Wachtl in violation of Section 8(a)(1), and on May 21
Yates was given a third written warning notice and a 3-day
suspension in violation of Section 8(a)(3) and (4); and (4) on
June 10, 1991, Yates was discharged in violation of Section
8(a)(3) and (4).
1. September 11, 1990; first warning notice; smoking
and covering interior windows
The incinerator operators have the use of an office on a
mezzanine in Respondent’s building. The office is air-condi-
tioned, and the operators use it for escape from the inciner-
ator’s heat. When doing so, the operators can continue to
monitor the incinerator through two windows, one in the
door and one on the side of the office.
On August 30, 1990, then Maintenance Department Super-
visor McGraw issued to the incinerator operators a memoran-
dum stating that he had observed some items that had
blocked the interior windows of the incinerator operators’ of-
fice and:
From a safety standpoint it is essential that these
windows present a view of the mezzanine area. Please
be advised that effective immediately any materials
blocking these windows will be removed and not re-
placed.
On September 10, Yates worked the 7 a.m. to 3:10 p.m.
shift. The first event in question was about 8 a.m. At that
427ST. LUKE’S HOSPITAL
4 Yates testified that ‘‘alternate steward’’ and ‘‘assistant steward’’
are equivalent terms.
time, as Yates admits, the view from the incinerator opera-
tors’ office windows was blocked by a bulletin board and a
locker that had been placed before them and memoranda that
were on the windows (apparently taped there). Yates testified
that, around 8 to 8:30 a.m., he and Plant Engineer James
Amie and painter Herman Robinson was in the incinerator
operators’ office, with the door closed, when May knocked
on the door. According to Yates, May first said that he
smelled cigarette smoke and May
asked ‘‘was I smoking?’’ He asked me, were those my
cigarettes on the table? I told him yes, they were my
cigarettes.
Amie and Robinson excused themselves. May then said what
he had seen was visible chimney smoke from outside the
building. (There should have been no smoke, or at least no
visible smoke, because of pollution control devices on the in-
cinerator, as discussed infra.) Amie asked Yates if he knew
why there was chimney smoke; Yates did not.
Yates then testified that May commented about the win-
dows of the incinerator operators’ office being blocked.
Yates testified that May said he wanted the lockers, the
memoranda, and the bulletin board away from the windows
by the end of the day. (Yates testified that the items were
removed by the end of the day, and this is not disputed.)
Further according to Yates, May and Yates then went to
check the furnace controls in an effort to determine the cause
of the chimney smoke. As they were checking a newer set
of controls, May asked if Yates had had an ‘‘in-service’’ or
training class on those particular controls. Yates replied that
he did not need an in-service because he had been working
that control panel for a year. May asked assistant mainte-
nance department director Burke to join them; Yates then
stated that he wanted union representation. May and Burke
walked away.
On cross-examination, Yates admitted that smoking is not
permitted in the hospital except in designated areas, and that
the incinerator operators’ office is not a designated smoking
area. Yates further admitted receiving McGraw’s August 30
memorandum that is quoted above.
At some point on September 10, Yates filed grievances
over May’s mention of the in-service and May’s instruction
to clear the windows of the incinerator operators’ office. On
the grievance over May’s mention of an inservice, Yates
wrote:
Nature of grievance
Harassment—Ed May tried to intimidate me [An-
thony Yates] because of my new position as alternate
Union steward and because I filed complaints
w/O.S.H.A. and various agencies. Mr. May then drilled
me on the new equipment. Asked did I know how to
read the panel board.4
Robinson and Amie were called as witnesses for General
Counsel. (Supervisor Amie was called under Rule 611(c).)
Both Robinson and Amie testified that on September 10
they, together, met May shortly after they left the company
of Yates and May in the incinerators’ office. According to
both, May told them that he had smelled cigarette smoke in
the incinerator operators’ office but that he was going to do
nothing about it.
On September 11, Burke issued a warning notice to Yates
that May had drafted. September 11 is listed as the date of
a conference and September 10 as the date of the subject in-
cident. The warning notice indicates that it was Yates’ first
warning and that it was for insubordination, uncooperative
attitude, and failure to follow instructions. As the factual ex-
planation, the warning notice recites:
Failure to follow previous instructions to remove
window covering from incinerator operator’s office
windows. Smoking or allowing smoking to occur in the
incinerator operator’s office.
These observations were made by Ed May on Sept.
10, 1990 at approximately 8:45 A.M.
May testified that on the morning of September 10, as he
came to work, he noticed black smoke pouring from a chim-
ney. According to May:
So I went down to the incinerator room to the mez-
zanine area to find out what was happening. When I
went down I didn’t see anybody in the mezzanine area
attending the incinerator. And I went over to a small
office area. And the door was locked, and the windows
were all blocked over. I knocked on the door, and the
door was ultimately opened. And Tony Yates and Her-
man Robinson and James Amie were in the room. I
asked Tony Yates who was the incinerator operator, if
he knew what was occurring with the incinerator—that
it was smoking and just billowing black smoke. And he
said, no, he didn’t know what was happening. And con-
currently with that as I was in the office I noticed that
there was a pack of cigarettes and an ashtray filled with
cigarette butts, and the room just reeked of smoke. And
I, maybe concurrently with that, said, ‘‘And what are
you guys doing in here? Are you smoking?’’ And I
said, ‘‘There’s somebody’s cigarettes on the table; who
belongs to those [sic]?’’
And Tony said, ‘‘I belong to them [sic], but I wasn’t
smoking,’’ or something like that. . . . I believe he said
he was not smoking.
May denied that he had any knowledge that Amie or Robin-
son was smoking.
Further, according to May
After I left the area I went back to the maintenance
office and I wrote the discipline—the warning.
May was asked on direct examination, and he testified:
Q. Where did you get the disciplinary action form?
Did you ask somebody for it or did you go and get it
yourself?
A. No, I went back to the maintenance offices. And
the secretary had it in the files.
May was also asked on direct examination:
Q. Is there a reason why you dated the date of con-
ference September 11, 1990?
A. He had left for the day.
428 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 In evasive, and incredible, testimony, Burke hinted that he did
not read the grievances; I find that he did.
6 All subsequent dates are in 1991 unless otherwise indicated.
Q. On September 10th?
A. Yes. So the soonest we could do the conference
was the next day. So I dated it the next day and gave
it to Roland and said when he comes in the next day,
you sit down with him and you do the discipline.
May denied knowledge of Yates’ September 10 grievances
when he decided to discipline Yates.
Regarding what he had said to Amie and Robinson after
he left the Company of Yates on September 10, May was
asked, and he testified:
Q. What did you say to them [Robinson and Amie]
as opposed to characterizing it? Can you recall what
you said to them?
A. I said that I’m really not going to do anything re-
garding the incident that occurred. And that I didn’t see
them smoking or didn’t have any knowledge that they
were doing anything there. And that was about it; it
was a very brief conversation.
Burke, who had retired from Respondent’s employ by the
time of the hearing, testified that he issued the warning no-
tice to Yates on September 11, after May presented him on
September 10, ‘‘after 3:00 or 3:30 in the afternoon—some-
place in that area.’’ Burke acknowledged that, around noon
on September 10, Yates attempted to file two grievances
with him. However, before that, according to Burke, May
had told him that he intended to give Yates a warning notice
for smoking in the incinerator operators’ office. Burke was
asked specifically when May had said such; Burke replied,
‘‘[i]t was in the early part of the morning. I mean, we started
about 8:00, so it had to be somewhere between 8:00, 9:00—
someplace in there.’’
General Counsel introduced, as evidence of discriminatory
treatment of Yates, testimony by Blythewood that, on the
Saturday before he testified (on a Wednesday), the windows
of the incinerator operators’ office looked like:
You got documents going across concerning the
scrubber and the incinerators—document [sic] concern-
ing, it’d be the testing of the equipment and certifi-
cation papers. You also have some papers that I guess
Bob Wachtl put up on the window, concerning when
the EPA was coming out to inspect it, and how much
trash we was supposed to have and—letters that have
me and Govind and everybody’s name on it. So I guess
everybody is supposed to have a copy of that paper.
On cross-examination, Blythewood acknowledged that, by
his description of the windows, ‘‘I’m not saying completely
blocked.’’
Credibility Resolutions
On October 10, when May came to the incinerators’ of-
fice, the windows were blocked and Yates was allowing
smoking in that office, and there is no factual issue to that
extent. Also there is no question that May told Amie and
Robinson that he had smelled cigarette smoke, but that he
was not going to do anything about ‘‘the incident’’ (May’s
testimony).
However, May also testified that he qualified his statement
to Amie and Robinson by saying that he was not going to
do anything about the incident, because ‘‘I didn’t see them
smoking or didn’t have any knowledge that they were doing
anything there.’’ This testimony was undoubtedly false. If
there had been any truth to it, Supervisor Amie would have
been given full opportunity to include it when he testified for
Respondent. I find that May did not qualify his statement to
Amie and Robinson to say that he was not going to do any-
thing about whatever they, and only they, had been doing in
the incinerators’ operators office.
The only remaining relevant conflict is between two of
Respondent’s witnesses, May and Burke. May testified that,
‘‘After I left the area I went back to the maintenance office
and I wrote the discipline—the warning.’’ That would nec-
essarily been between 8 and 9 p.m. However, Burke testified
that during that hour May said he was going to write up
Yates.
Although he has retired and does not have the usual rea-
sons for lying, I simply cannot credit Burke. If there had
been any truth to that testimony, May would have come up
with the same, or at least similar, testimony. Instead, May
gave testimony that would permit only the conclusion that he
went straight to the maintenance department office and wrote
out the warning notice at that point; he did not go there, or
anywhere else, and announce that he intended to write it out
at some later time.
(May did see Burke early in the day. As Yates testified,
May called Burke over as May was mentioning the in-serv-
ice. May and Burke left the presence of Yates when Yates
asked for a steward. May could then have said to Burke that
he was going to discipline Yates, but he did not. Again, May
would have so testified. Moreover, the point at which May
asked Burke to join him and Yates was necessarily before
May told Amie and Robinson that he was going to do noth-
ing about ‘‘the incident.’’)
Accordingly, I discredit Burke’s testimony that May said,
early on September 10, 1990, that he intended to discipline
Yates. Nor do I believe May’s testimony that he went
straight to the maintenance department office and wrote out
the warning notice. If he had done that, there were still 6
hours left in Yates’ workday to get the warning notice deliv-
ered. The suggestion that Yates had already left for the day
was, necessarily, false.
I find that the warning notice that was issued to Yates on
September 11 was composed on September 11 or, at least,
at some point after Yates filed grievance with Burke about
noon on September 10.5
2. February 7, 1991; second warning notice; not calling
in absence or tardiness
Yates received a second written warning notice on Feb-
ruary 7, 1991.6 The complaint alleges that issuance of the
warning notice constituted a violation of Section 8(a)(4) and
another violation of Section 8(a)(3). General Counsel’s the-
ory on the former allegation is that it was issued because,
on February 1, the Respondent received the first complaint
issued herein. The 8(a)(3) allegation is generally based on
Yates’ grievance-filing activities.
429ST. LUKE’S HOSPITAL
Yates testified that on February 4, he asked May for per-
mission to take two emergency vacation days to attend to his
sick wife. May agreed. Yates testified that he called the of-
fice on February 6; he asked for May, but May was not
available; he told the office clerical employee who answered
the telephone ‘‘to let Mr. May know that I was taking an-
other vacation time.’’ Yates testified that he made this Feb-
ruary 6 call, even though he had been granted 2 days off
(February 5 and 6) because ‘‘I did not know what day he
thought it was, so, to cover myself, I called in another day.’’
Yates acknowledged that he was due at work at 7 a.m. on
February 7. Yates testified that ‘‘I had a rough night with
my wife, and I overslept’’ on February 7. May called Yates’
home shortly after 7 a.m. and asked Yates if he intended to
come to work. Yates responded that, ‘‘I would like to have
another vacation day off.’’ May told Yates that he was need-
ed at work. Yates testified that he responded to May that
‘‘let me talk with my wife and see if it would be okay.’’
When asked on direct examination what he did next, Yates
replied, ‘‘Talked with my wife—and by 10 o’clock, I was
there.’’
Yates further testified that, after he got to work on Feb-
ruary 7, he was approached by May who handed him the fol-
lowing second warning notice. It is checked at ‘‘Absentee-
ism’’ and ‘‘Failure to Follow Instructions.’’ As the factual
explanation, May wrote:
On 2/4/91 Tony Yates asked if he could have an
emergency leave of 2 days on 2/4 & 2/5 because of
personal reasons. He indicated that he would return the
morning of 2/6. On the morning of 2/6 Tony called in
& said that he needed another vacation day & would
return to work on 2/7. At approximately 9:00 AM on
2/7 I called Tony Yates at his home & questioned why
he didn’t report for work or call in to report his ab-
sence. He had no acceptable explanation other than he
needed another day off. Tony did report to work at ap-
proximately 10:00 AM on 2/7.
Yates testified, ‘‘I tried to explain myself—that I wasn’t ab-
sent but tardy.’’ Yates further testified that, a few days later,
he made the same argument in a third-step grievance meet-
ing, with May and Labor Relations Vice President Forrestall
present, but to no avail.
May testified that on or before February 4 (while he was
serving as acting director of the maintenance department, as
well as vice president of institutional services), Yates asked
for February 4 and 5 off. He further agreed that, on February
6, Yates called the office, but he testified that it was he who
spoke to Yates. Yates asked permission to be off a third day.
And I . . . said ‘‘Hey, it’s really difficult now and
you’ve got to be back the next day.’’ He said, ‘‘fine,’’
he would be coming into work the next morning.
May further testified that on the morning of February 7,
he went to the incinerator area and saw a backup. He asked
where Yates was, but no one knew. He called Yates’ home;
Yates asked for another day off. He agrees that Yates ap-
peared about 10 a.m.
May did not dispute Yates’ testimony that, when presented
with the warning notice, and at a subsequent grievance meet-
ing, Yates argued that he was merely tardy, not absent.
General Counsel contends that discriminatory motive is
demonstrated because Yates was only tardy, not absent, on
February 7. General Counsel also placed in evidence a por-
tion of a personnel manual. It states that an employee guilty
of ‘‘a combination of 3 unexcused absence days in a 3-
month period may be discharged.’’ The manual further pro-
vides that five instances of unexcused tardiness in a 3-month
period ‘‘shall be deemed grounds for discharge.’’
On cross-examination, Yates acknowledged that he did not
call in on February 7, and he acknowledged being aware of
the requirement of calling in beforehand when an absence or
tardiness is expected.
As evidence of discriminatory treatment of Yates, for this
and a subsequent occurrence (that of June 6, as discussed
infra), General Counsel further points to the record of main-
tenance department employee Dan May, Edward May’s son.
On March 7, 1987, Kajder issued to Dan May a first warn-
ing; ‘‘Tardiness’’ is marked; the explanation was that Dan
May was scheduled to be at work at 4 p.m., and that he had
not appeared by 4:35 p.m. on that date. On October 19,
1987, Edward May issued to Dan May a warning notice
marked ‘‘Counseling’’; ‘‘Absenteeism’’ is checked. As the
explanation, Edward May wrote: ‘‘Excessive absenteeism 8
occurrences of absence—9 total sick days.’’ On September
30, 1988, McGraw gave May a second warning for a 1-day
absence. On November 5, 1988, McGraw suspended May for
3 days because he was absent on the preceding Saturday
without calling in properly; McGraw noted that May had
done the same thing the Saturday previous to that; McGraw
recited that May was being warned that further infractions
could result in discharge. On September 19, 1990, McGraw
gave Dan May another 3-day suspension and a ‘‘final’’
warning for having taken 16 days of sick leave since the first
of the year.
Credibility Resolutions
The testimony of Yates conflicts with the warning notice’s
stated explanation, and the testimony of May, in two re-
spects. (1) Yates’ version is that, on February 4 he was asked
for February 5 and 6 off; May’s version is that Yates had
asked for February 4 and 5 off. (2) Yates testified that he
spoke only to an office clerical on February 6; May testified
that it was he who spoke to Yates on February 6, and at the
time, he emphasized to Yates that Yates must be present on
February 7.
I do not believe that Yates called in on February 6 simply
to confirm that he would be off for a second day. I believe
that the purpose of the February 6 telephone call was, as he
originally testified, ‘‘to let Mr. May know that I was taking
another vacation time.’’ I believe that the confirmation call
to a clerical did not occur. I believe, and find, that Yates
spoke to May on February 6, that Yates asked May for a
third day off, and that May granted the request with the ad-
monition about coming in on February 7, as May described.
Then, on February 7, Yates simply overslept, despite the ad-
monition by May. (However, under either version, May did
give Yates permission to be absent on February 6.)
430 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 That charge was filed on April 5; it alleged that Yates’ February
7 warning notice violated Sec. 8(a)(3).
8 The amendment added an allegation that Yates’ February 7 warn-
ing notice also violated Sec. 8(a)(4).
9 Br. 14. Contrast this language with that at Br. 12, where counsel
cites the date that the complaint in Case 8–CA–23302 ‘‘was re-
ceived’’ by Respondent.
10 Emphasis in original.
11 See R. Exh. 39–5. 12 See Alvin J. Bart & Co., 236 NLRB 242 (1978).
3. May 21, 1991; third warning notice and suspension;
excess overtime and early reporting; alleged
threat by Wachtl
As noted, the complaint alleges that Yates was threatened
in violation of Section 8(a)(1) on May 20; it further alleges
that he was issued a warning notice and 3-day suspension,
in violation of Section 8(a)(3) and (4), on May 21.
The 8(a)(4) allegation is based, in part, on timing; the
charge in Case 8–CA–235247 was amended by Yates on
May 20,8 and Yates was issued a third warning and suspen-
sion on May 21. General Counsel predicates a causal rela-
tionship on the representation that the amended charge ‘‘was
served upon the Respondent on May 20, 1991.’’9 General
Counsel needs a finding in this regard because, by a tele-
phone call to his home on the evening of May 20, Yates was
notified of impending discipline, as discussed infra.
Although the return receipts were attached to other charges
and complaints, counsel for the General Counsel did not at-
tach the return receipt to the amended charge in Case 8–CA–
23524 when she submitted the formal documents for this
case. There being no evidence that same-day, actual, service
was accomplished by mail, and no evidence that the charge
was otherwise served on Respondent on May 20, I find that
the earliest that Respondent could have received the amended
charge was May 21. Accordingly, I shall not consider this
‘‘timing’’ contention further.
On February 22 all hospital employees were issued a
memorandum stating:
please pay attention to the following timecard/payroll
items when filling in your time cards
All overtime must be approved by a supervisor
prior10 to working the hours.
[Six paragraphs on filling out timecards follow.]
On May 3, Wachtl issued to Yates a memorandum stating:
Schedule Change:
Effective May 12, 1991 your new duty hours are
Sunday through Thursday, 5:00 a.m. to 1:10 p.m.
Yates admits having received both of these memoranda. Prior
to May 12, Yates’ hours were 7 a.m. to 3:10 p.m., Mondays
through Thursdays, and Saturdays; he had Fridays and Sun-
days off.11
The furnace operator has two cleaning functions in issue
here. The furnace itself has to be cleaned; and the furnace
has a ‘‘scrubber,’’ a pollution-control mechanism, that has
spray nozzles that are cleaned in a separate operation. The
furnace is cleaned on the day after a day that it is not used;
before May 12, it was not used on Sundays, one of Yates’
days off.
Yates testified that prior to May 12 he performed the
cleaning of the incinerator on Mondays, on overtime, and he
performed the cleaning of the scrubber’s spray nozzles on
Tuesdays, also on overtime. Yates further testified that both
tasks were done in the mornings, before his regular shift, be-
cause the trash-loading which he was required to do took 8
hours each day; he would take 2 to 4 hours, all on overtime,
to do each cleaning task. By May 12, according to Yates,
this practice had been in effect for 12 years, in the case of
the furnace, and 1 year, in the case of the scrubber. Specifi-
cally, this practice continued between February 22 (when
employees were notified that they had to have prior approval
for each overtime assignment) and May 12. Yates testified
that he was not told to clean the incinerator and scrubber
during regular time, only, when his schedule changed on
May 12. However, Yates did acknowledge on cross-examina-
tion that his pretrial affidavit admits that, after the February
12 memorandum was issued he told Wachtl before he
worked any overtime. I find this admission to be the fact.12
On direct examination, Yates was asked, and he testified:
Q. [W]hen your schedule [changed on May 12],
when did you perform the functions that you described
previously, concerning the weekly clean out and the
scrubber nozzles?
A. It changed, since there was [then] no burning on
Saturdays, the incinerator was at its coldest point on
Sunday, so I decided to make Sunday my clean out
days of the incinerator. And Monday would be the
clean out day . . . of the spray nozzles [of the scrub-
ber].
It is undisputed that Yates did not discuss his decision with
anyone in supervision.
(At trial, no question was raised about how Sunday, May
12, was handled, and there is no evidence of which 8 hours
Yates worked on that date. Probably the lack of dispute is
because the furnace was operated on Saturday, May 11
(under the prior schedule), and it therefore could not be
cleaned on the next day. If so, on May 12, Yates would have
worked hours that created no issue because he did not clean
the furnace on that date).
In early May, before the May 12 memorandum was issued,
Wachtl and Yates discussed the coming schedules. Yates tes-
tified that Wachtl told him that he could work any 8 hours
on Sundays that he saw fit, ‘‘long as I do eight hours.’’
On May 19, Yates arrived at work at 4 a.m. He first
cleaned out the incinerator. Then Yates worked until 2 p.m.,
for a total of 10 hours, or 2 hours of overtime. General
Counsel did not ask Yates why he stayed beyond noon.
On Monday, May 20, Yates arrived at work at 1 a.m. At
8 a.m., he was approached by Wachtl. Further according to
Yates, Wachtl told him that he had not been authorized to
come in at 4 a.m. on Sunday, or 1 a.m. on that morning, and
that Yates should leave at 9 a.m. Yates responded to Wachtl,
‘‘I always work overtime cleaning out the incinerator and the
spray nozzles.’’
Yates testified that as he left for the day, he handed
Wachtl two grievances. One grievance alleged the failure of
Respondent to pay plumber’s wages for his fixing a faucet
at some unindicated point in time; the other grievance al-
431ST. LUKE’S HOSPITAL
13 Tr. 349, L. 22, is corrected to change ‘‘lean’’ to ‘‘lenient.’’
leged Respondent’s use of an independent contractor to do
other work at another unindicated point in time. Yates was
further asked, and he testified:
Q. And when you saw Bob Wachtl on May 20th,
and you handed him these two grievances, what if any-
thing did he say?
A. He told me, ‘‘Don’t go over my head; you don’t
know what you’re getting into.’’
Yates testified that he asked Wachtl what he meant, and that
Wachtl refused to respond. The complaint alleges that this
statement by Wachtl to Yates was a threat in violation of
Section 8(a)(1).
(As a date/hour stamp on the form indicates, Yates then
went to the Regional Office and filed the amended charge in
Case 8–CA–23524, as discussed supra.)
On the evening of May 20, Yates’ wife received a tele-
phone call from Respondent’s office; the caller stated that
Yates should report at 9 a.m. (rather than 5 a.m.) on the next
day. When Yates reported as directed, Wachtl and Thakkar
presented him with a disciplinary notice. Attached to the no-
tice were the February 22 and May 3 memoranda which are
quoted above. The notice indicates that it is a third and
‘‘Final’’ warning notice and that a 3-day suspension was also
being imposed. The reason checked was ‘‘Failure to Follow
Instructions,’’ and the explanation was:
1. On 5/19/91 Mr. Yates worked two (2) hrs. unau-
thorized overtime. (See [the February 22 memoran-
dum].)
2. On 5/20/91 Mr. Yates punched in at 0057 hrs.
He’s been notified of his duty hours. (See [the May 3
memorandum].) He had no authorization to come to
work early.
Yates testified that Wachtl said, as he presented the notice,
that the maintenance functions were supposed to be done
during regular hours. Yates testified that ‘‘I told him [a sec-
ond time] that we had been doing this maintenance on the
system, since both of their existence, on overtime.’’
Apparently no supervisors were present when Yates
worked on Sunday, May 19, and in the early morning hours
of May 20. (If supervisors had been present, and observed
Yates, and nothing had been said to him, General Counsel
would assuredly have brought out the facts.)
Wachtl testified that Respondent tries to be lenient13 about
Sunday scheduling. He admitted that he did tell Yates, when
his schedule changed to include Sundays, that he could per-
form his duties during any 8 hours that he chose on Sundays;
however, he denied that he granted Yates permission to work
more than 8 hours on Sundays, and he denied that he granted
Yates permission to appear for work early on any other day
of the week.
Wachtl was asked about his alleged statement to Yates
after Yates presented grievances as Yates left the premises
on May 20:
Q. And then what occurred?
A. When we were finished, Tony had all of his pa-
perwork spread out on the desk in front of me—a lot
of paperwork—and he was just gathering up all the pa-
perwork. He was standing, and he gathered up all the
paperwork, and—
Q. Did he say to you anything with regard to why
he was gathering up all the paperwork?
A. Well, I was just putting it all together, and I just
sort of rocked back in my chair. And I said, ‘‘Tony,
why are you doing all of this?’’
And he looked at me and he said, ‘‘Oh, don’t take
this personal, Bob; I’m just making my case. Someday
I’m going to own this hospital.’’
Q. And what did you say at that point if anything?
A. Again I just looked at him awestruck. And I said,
‘‘Tony, all you’re going to do is dig yourself a hole
you’re never going to get out of.’’
. . . .
Q. As he left your office—do you recall him leaving
your office after that, or did he say something to you
in response?
A. No, he just finished gathering up his papers and
then asked if he could use the copy machine which was
right outside my door. He wanted to make some copies
of the things that we had gone through that day.
Q. Do you recall anything that occurred at that point,
then?
A. He started making his copies. I went back to
doing whatever I was doing, and he stuck his head back
in the door. And I remember he said, ‘‘Bob, just what
did you mean by that statement?’’
And in being preoccupied or whatever, I said just
[said], ‘‘Tony, take it however you want to take it. I
can’t tell you; just take it however you want to take
it.’’
Wachtl further gave an extremely long narration to describe
what he was thinking about when he told Yates that he was
digging ‘‘a hole you’re never going to get out of.’’
Wachtl did not deny that, between February 22 and May
12, Yates worked Mondays and Tuesdays, on overtime, to
clean out the furnace and scrubbers.
On redirect examination, Wachtl was asked, and he testi-
fied:
Q. When you informed Mr. Yates that you had not
authorized the overtime on Sunday the 19th, did you
have a particular time in mind when you expected him
to clean out the incinerator and the spray nozzles?
A. He was told he would clean them out during his
routine eight-hour shift.
Credibility Resolutions
I do not believe Wachtl’s testimony that, at some point,
Yates ‘‘was told he would clean them out during his routine
eight-hour shift.’’ If that had been the truth, Wachtl would
have mentioned the fact when Yates twice protested that he
had ‘‘always’’ cleaned out the furnaces on overtime; he did
not. Also this testimony was offered only on redirect exam-
ination, in response to a question about what he ‘‘in mind’’
about when Yates should do the cleaning. That is, it came
late in the testimony, as an afterthought; it was not respon-
sive to the question before him; and Wachtl suspiciously in-
dulged in the passive voice to make the point (rather than
432 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
14 That a written work order would have been required before a
supervisory order was effective is not argued by General Counsel.
saying who told Yates thus). I believe, and find, that the
cleaning of the incinerator and scrubber, on overtime or oth-
erwise, was not mentioned when Wachtl told Yates about the
coming change in schedule.
Regarding the alleged threat, although Wachtl was asked
to respond to what Yates had said in his grievance over his
discipline of May 21, he was not asked to respond to what
Yates had said at trial. What Yates had testified to at trial
was the imperative by Wachtl: ‘‘Don’t go over my head; you
don’t know what you’re getting into.’’ This statement, which
is the one in issue before me, is not denied. To the extent
Wachtl’s testimony can be construed to constitute a denial,
I discredit it. I believe, and find, that both statements were
made: Wachtl told Yates that he should not go over Wachtl’s
head because he did not know what he was getting into; I
further believe, and find, that Wachtl asked Yates why he
was doing what he was doing (filing many grievances), and
Wachtl told Yates ‘‘all you’re going to do is dig yourself a
hole you’re never going to get out of.’’
There is another matter that requires no credibility resolu-
tion. Respondent produced no records that would have dis-
proved Yates’ claim that he worked, and was paid for, over-
time on Mondays and Tuesdays for at least a year, including
specifically the period between February 22 (when the prior
overtime approval requirement was stated in the Hospital’s
memorandum of that date) and May 12 (when his schedule
changed). If the records (such as Yates’ timecards or pay
stubs) no longer existed, Respondent would have explained
that. If they existed and would have Yates untruthful in this
regard, they would have been produced by Respondent. Fur-
ther, if Yates was untruthful on the point, he would have
been contradicted by Wachtl.
(Respondent did have a system to record prior approvals
of overtime. By time of trial, those records had been de-
stroyed (innocently, I find). However, Donna M. Wojtowicz,
the maintenance department payroll clerk at the time of the
events in question, testified that prior supervisory approval
was not always required; if an employee claimed overtime on
his timecard, and she had not previously received a memo-
randum from a supervisor that such overtime had been au-
thorized, she went to the supervisor and got the supervisor
to initial the request (if the initials were not already on the
timecard when the employee submitted it). Respondent did
not ask Wachtl (or any other of Yates’ supervisors) if, from
February 22 through May 12, they had (or had not) subse-
quently initialed timecards of Yates to give him credit for the
Monday–Tuesday overtime work that he described).
Therefore, again, left unchallenged is Yates’ testimony
that, between February 22 and May 12, he reported early on
Mondays and Tuesdays to do incinerator and scrubber
cleanings, and he was paid for the overtime. I find this to
be the fact.
4. June 10, 1991; discharge; not filling a chemical tank,
and not calling in absence
Yates was discharged on June 10. The complaint alleges
that the discharge was imposed in violation of Section
8(a)(3) and (4) of the Act. As a theory for the 8(a)(4) allega-
tion, General Counsel also relies, in part, on timing. On May
31 Respondent received an order consolidating cases with an
amended consolidated complaint and notice of hearing; that
complaint alleged, and realleged, violations as discussed
above.
Respondent contends that Yates was discharged because of
his prior misconduct and because, (a) on June 4 Yates failed
to follow an order to fill a caustic chemical tank, and (b) on
June 6 Yates failed to call in to report that he would be ab-
sent for the day.
a. Yates’ failure to fill a chemical tank
On the first floor of its building, below the mezzanine
level where the incinerator operators’ office is located, Re-
spondent maintains a tank that holds a caustic chemical,
LB18. The chemical is used in the pollution-control function
of the furnaces’ scrubber. It was a duty of the incinerator op-
erators to keep the tank adequately filled. If the tank is
drained below a certain level, an alarm goes off. The alarm
can be silenced for a few minutes, but it will go off again
if the tank is not attended to, sort of like a ‘‘snooze alarm’’
clock. However, again like an alarm clock, the alarm can
also be turned off so that it will not restart itself, even if the
tank has not been refilled.
Yates testified that on June 4, Charging Party Blythewood
appeared at the incinerator operators’ office to relieve him at
12:40 p.m. (before Yates’ 1:10 p.m. quitting time). At 12:45
p.m. Foreman Kajder appeared at the office and said that he
had received a message from a clerical in the maintenance
office that the alarm on the LB18 tank had sounded. Yates
testified that he had not heard the alarm because Bill Perry,
a mechanic, had silenced the alarm. (That Perry had done so
was acknowledged by Respondent’s witnesses.)
Yates testified that Kajder did not tell him to do anything,
nor did Kajder write out a work order,14 but he and
Blythewood ‘‘ran downstairs and investigated the alarm.’’
Yates was asked, and he testified:
Q. After you went down and looked at the area, saw
that the alarm had been silenced, what did you decide
to do?
A. Well, after I reset the button, and I saw that
[Perry] had shut the pump off—which it has to be
purged and all that, which takes time—I decided to re-
plenish the tank the next day.
Q. How long does it take to purge the system?
A. It would take anywhere from a half an hour to
an hour; it depends on how lucky you get.
Q. Any particular reason why you determined to do
it the next day?
A. It wouldn’t hurt. We had been out of LB18 for
six to seven days at a time, and for me to work over-
time at that time—I just felt I could do it first thing in
the morning.
Yates went to the locker room, changed into street clothes,
and punched out at his regular quitting time, 1:10 p.m. Yates
went back to the maintenance office (not the incinerator op-
erators’ office) and met Kajder. Yates told Kajder that Perry
should not have silenced the LB18 tank alarm without noti-
fying him. As Yates and Kajder were talking, Thakkar came
to the office; Yates was asked, and he testified:
433ST. LUKE’S HOSPITAL
15 Apparently, Blythewood meant, ‘‘disciplined for it.’’
16 When Kajder, Yates, and Thakkar were later together, Kajder
did tell Thakkar that he had previously told Yates to fill the tank
(as Yates’ evasiveness on the point acknowledges). At best, Kajder
was then relying on what he conceived to be implicit in his notifying
Yates that the alarm had sounded.
Q. And what, if anything, did Mr. Thakkar say?
A. He asked Joe Kajder—he asked, ‘‘What’s going
on?’’ And Joe Kajder told him that he told me to—that
I had an alarm system, that the chemical tank was low.
And Govind asked Joe Kajder, ‘‘Did you tell him . . .
to replenish the tank?’’
Q. And what did Joe Kajder say in response to that
question?
A. I remember—well, I can’t say what he really said.
Yates testified that Thakkar then told him to punch back in
and fill the LB18 tank, which Yates did, on overtime; Yates
testified (on rebuttal) that it took him an hour to replenish
the tank.
General Counsel also called Blythewood to testify about
the tank-filling issue. Blythewood testified in accord with
Yates that Kajder did not tell Yates to fill the tank, only that
an alarm had sounded. Blythewood testified that after he and
Yates got to the tank area:
I told . . . Tony [Anthony Yates], ‘‘I know you’re
not going to work overtime. You just made up for it15
last week so it’s unauthorized because nobody said
‘work overtime.’’’
So [Yates] . . . said he was going to get dressed and
going to tell them in the office he was going home.
Blythewood testified that either he or Perry could have filled
the tank that time.
Respondent called Thakkar, Burke, Kajder, and Wachtl to
testify about the events of June 4.
On direct examination, Thakkar testified:
On June 4, around 12:30 p.m., I had heard Joe
Kajder, our maintenance foreman, the manager, and
Tony talking to each other as if they were arguing in
the entrance of our [maintenance] office area. And there
was a talk about caustic alarm going off, and Perry
had—Bill Perry, who had silenced the alarm, had in-
formed the office several times that the caustic alarm
is going off, and someone should replenish it. And
someone meant, the operator should replenish the tank.
Joe Kajder was asking Tony why he didn’t fill the
caustic. He was out there to tell him, in his mezzanine
office, but why he hasn’t done so, and why is he ready
to go home? And I thought this may flare up into
something more—argument or something—so I pulled
both of them in my office . . . . And Tony had indi-
cated that he checked it out, and there was enough—
but when the alarm sounds, it’s not enough. I mean, it’s
low. That’s why the alarm is provided for, and he
should have filled it. Also, there was a pump that needs
to be borrowed out of the parts room. That pump was
signed out by Tony, with his intention to fill it, in the
morning around 10:00 a.m. That pump was signed out
by Tony, so he had intended to fill that tank. But some-
how, he didn’t.
On cross-examination Thakkar added that, when Kajder was
asking Yates why Yates had not filled the tank, Kajder also
said to Yates, ‘‘why didn’t you do it? I told you to do [it].’’
Burke testified that he was with Kajder when Kajder first
approached Yates in the incinerator operators’ office. Burke
testified:
Mr. Kajder and I went over to the mezzanine at a
later point in time. Tony was in his office, and we
asked him if he had changed the caustic, and he said
he had checked it—if he’d added the caustic, and he
said he’d already checked it. And then we left the mez-
zanine.
Burke was asked, specifically if Yates had said that he
‘‘checked it’’ or ‘‘filled it’’; Burke reaffirmed that Yates said
‘‘checked.’’
Kajder testified that Perry made ‘‘the’’ call to the office
‘‘probably after 12:45’’ p.m. Kajder got to the office after
that, an office clerical employee, Georgette, told him that
Perry had called and reported that the caustic tank alarm had
sounded. Kajder testified, ‘‘I walked over to the mezzanine
where we put our trash into the thing and I asked him
[Yates] to pump in the caustic for me.’’ After doing so,
Kajder went back to the office area the office. Then, further
according to Kajder:
Georgette said Bill Perry called again and said that the
caustic wasn’t filled and the alarm was off again. Be-
fore I could go over there, Mr. Yates came back into
our office area, into where we have this counter built,
and he was dressed in street clothes. And I asked him,
you know, ‘‘Did you change the caustic?’’ He said, no;
he couldn’t do it because he didn’t have his authorized
overtime.
I think I got a little loud and Mr. Thakkar came up
and said, ‘‘Well, we’ll authorize the overtime’’—right
there on the spot.
Yates then went back to fill the tank, on overtime.
Credibility Resolutions
Kajder did not tell (or ask) Yates to ‘‘pump in the caustic
for me’’ when Kajder went to the incinerator operators’ of-
fice. Burke’s testimony proves that Kajder did not, in haec
verba, tell Yates to do anything. Kajder only told Yates that
the alarm had gone off. Yates replied to Kajder that he had
checked the tank. Kajder, who was unfamiliar with the oper-
ation, accepted that representation as an indication that the
entire matter was a ‘‘false alarm’’ (which Yates was running
to check out).16
b. Yates’ failure to call in absence
Yates testified about 6:30 a.m. on the next day, Wednes-
day, June 5, he hurt his back while pushing trash into the
incinerator. He went to Respondent’s emergency room where
he was X-rayed and diagnosed as having acute lumbar strain.
Yates testified that, after being released from the emer-
gency room, he went back to the incinerator operators’ office
434 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
17 As discussed infra, the complaint alleges that this threat oc-
curred ‘‘on or about October 10.’’
where he left the emergency room physician’s report. That
report was marked ‘‘off duty with treatment’’; and on the re-
port the physician had filled in a blank stating: ‘‘You should
be seen within 1–2 days for follow-up care.’’ The form has
a box to be checked for a directive to consult a private phy-
sician; that box is not checked; ‘‘Health Service’’ is written
in, instead. The report also states that Yates should ‘‘rest [in-
jured] area,’’ he should ice the area for 24 hours, and he
should not engage in twisting or heavy lifting (for an unspec-
ified period of time).
Yates did not report to work the next day. He admitted on
direct examination that he did not call in, as per the written
rules quoted above (that on each day’s absence an employee
must call in at least 1 hour before scheduled to appear) be-
cause ‘‘I felt I was covered on the context of section 12 of
our [collective-bargaining agreement].’’
Article XII of the agreement, ‘‘Authorized Leaves of Ab-
sence Without Pay’’ provides, at Section 1, that:
(i) The employee must report the illness or injury to
his immediate supervisor upon his first day of absence
unless his failure to do so is due to reasons beyond his
control and he does so as soon as possible;
(ii) The employee must make application for the
leave of absence on forms furnished by the Hospital.
Yates saw his personal physician on Thursday, August 6;
that physician told him, in writing, to stay off from work
until June 9. (June 7 and 8 were his regular days off.) Yates
worked his regular shift on Sunday, June 9. Yates was paid
sick pay for missing one-half day on June 5, and a full day
for June 6.
On June 10, Yates was called into Thakkar’s office where,
with Thakkar present, Wachtl handed Yates disciplinary no-
tice marked ‘‘Termination.’’ The categories of misconduct
marked were ‘‘Absenteeism’’ and ‘‘Unsatisfactory Job Per-
formance.’’ The explanation was:
On 6/4/91, approximately 30 minutes prior to the end
of your shift, you were instructed to replenish the caus-
tic tank prior to departing for the day. Your failure to
do so resulted in the tank’s low level alarm to energize
as the liquid was below the pump [word obliterated].
Consequently, this resulted in [obliterated; probably
‘‘having’’] to utilize unscheduled overtime for you to
replenish the tank.
Also, on 6/6/91, you failed to follow the established
hospital call-in policy to report your anticipated absence
from work which caused the incinerator operation to be
unmanned. This action caused the department to be 3
hours behind schedule in waste disposal.
Thakkar testified that Yates’ failure to call in on June 6
did, in fact, cause the backup of trash-burning as the dis-
charge notice described. General Counsel does not dispute
that testimony, and there are no credibility resolutions to be
made at this point.
B. Blythewood’s Case
The complaint alleges that: (1) on October 4, Blythewood
was orally warned in violation of Section 8(a)(3); (2) on Oc-
tober 10, Blythewood was issued a written counseling in vio-
lation of Section 8(a)(3); (3) on October 11, Blythewood was
issued a written warning notice and given a 3-day suspen-
sion, both in violation of Section 8(a)(3) and threatened at
the same time17; and (4) on October 30, by Thakkar, Re-
spondent impliedly promised Blythewood benefits in viola-
tion of Section 8(a)(1).
1. October 4, 1991; washroom incident; alleged
oral warning
Thomas Blythewood has been employed by Respondent
for 14 years. He is now classified as a ‘‘maintenance
helper/incinerator operator.’’ Before July 1991, he and Clar-
ence Kittrells were classified solely as a ‘‘maintenance help-
ers.’’ In a maintenance department meeting that month,
Thakkar told Blythewood and Kittrells that they would there-
after assume Yates’ duties as operators of the incinerator, in
addition to their other duties.
On September 23, by letters of that date, Wachtl notified
Blythewood and Kittrells that, starting October 15, their shift
hours, and days off, were changed.
On October 1, Blythewood filed a grievance stating that
neither he nor Kittrells had been informed about the award
of a previously posted job, ‘‘senior maintenance man.’’ On
October 3, Blythewood filed another grievance alleging that
the rescheduling of Kittrells and himself was a violation of
the collective-bargaining agreement.
Blythewood testified that, on October 4, he was scheduled
for a half-hour lunchbreak at noon. Before noon, he had been
burning infectious waste. He went to the washroom at 11:50
a.m. to thoroughly wash his hands, as per standing instruc-
tions. Before he left the incinerator area, he left more than
one-half hour’s work of burning to be done.
Blythewood testified that, after eating his lunch, he went
back to the washroom at 12:25 p.m. While he was in the
washroom, Robinson was in an adjacent locker room. He and
Robinson exited the combination washroom/locker room
door ‘‘between 12:35 and 12:40’’ p.m. They were met by
Thakkar. Thakkar asked Blythewood where he had been for
the last 13 minutes, and why was he not burning trash;
Blythewood replied that he had been in the washroom. Fur-
ther according to Blythewood, when they were later in
Thakkar’s office, Thakkar ‘‘was concerned about why I
wasn’t burning trash. . . . I should have been over there
burning trash.’’ Blythewood replied to Thakkar that it was
lunchtime when he went to the washroom, and ‘‘I had put
enough in to cover the lunch hour.’’ Thakkar called Wachtl
into Thakkar’s office. With Wachtl present, Thakkar and
Blythewood repeated what they had said before. Blythewood
then asked if Thakkar was ‘‘trying to make it this a depart-
mental issue,’’ and that he should confront all employees if
he were doing so. Thakkar turned to Wachtl and said,
‘‘Maybe we should.’’ The meeting ended at that point;
Blythewood was given no notice of disciplinary action at that
time.
Blythewood testified that the incinerator often goes unat-
tended for periods of 13 minutes, and that no employee that
he ever heard of had ever been admonished about the amount
of time he or she spent in the washroom.
Thakkar testified that, on October 4, he had been making
rounds and noticed that the incinerator was unattended. He
435ST. LUKE’S HOSPITAL
18 Neither Spina nor Kittrells testified.
looked around for ‘‘several minutes’’ and then saw
Blythewood leaving the washroom. Thakkar asked
Blythewood where he had been; then he took Blythewood
into his office. Thakkar was not asked what was then said
between him (and Wachtl) and Blythewood’s testimony in
that regard is therefore undenied.
The complaint alleges that Thakkar’s October 4 verbal re-
marks, as testified to by Blythewood, constituted an oral
warning to Blythewood in violation of Section 8(a)(3). The
complaint further alleges that, also in violation of Section
8(a)(3), Thakkar issued a written counseling to Blythewood
on October 10. The content of that ‘‘counseling,’’ or memo-
randum, is reproduced below (in the discussion of the events
of October 10); its stated basis is the just-described wash-
room incident of October 4.
2. October 10, 1991; grievance meeting incident;
memorandum to Blythewood on washroom incident
On October 10 a second-step grievance meeting was held
in Thakkar’s office; the subject was Blythewood’s October 1
and 3 grievances over scheduling and posting. The meeting
began about 8 a.m. At the start of the meeting only Kittrells,
Blythewood, Wachtl, and Thakkar were present. Blythewood
was asked, and he testified:
Q. When you arrived at this meeting, was there a
union representative present?
A. No. Govind [Thakkar] asked me and Clarence
[Kittrells], did we want our union representative
present? And we both said, ‘‘No.’’ But he proceeded to
tell Bob [Wachtl] that he thought that the steward
should be there. . . . So he told Bob to go get him.
Union Steward Guy Spina arrived shortly. Blythewood testi-
fied:
And I was reading a section out of the contract, and
Spina kind of was coming in the door. So I said,
‘‘Spina, go get the contract because I’m reading from
mine, and you’re going to need yours in order to follow
along.’’ So Spina replied back to me that I didn’t tell
him what to do . . . that I didn’t mess with him first
thing in the morning. And he said it twice.
So . . . I said, ‘‘Spina, what the hell is wrong with
you?’’
And I looked at Clarence, and we looked at each
other, and we just shook our heads.
Then, further according to Blythewood, he told Thakkar that
there was no point in continuing the meeting.
Before the men left the room, Thakkar gave Blythewood
a memorandum concerning the washroom incident of Octo-
ber 4. On hospital stationery it states:
Subject: Memo for the Record
Re: Tom Blythewood
On 10/4/91, at approximately 12:34 p.m., I visited
the mezzanine area to check the status of the daily
burning. Mr. Blythewood, the helper assigned to the in-
cineration duty for the day, was not on the job. Upon
further checking, Tom was seen coming out of the
locker room at about 12:43 p.m. Tom was called into
my office to meet with me and Bob [Wachtl] to explain
as to where he was for the last 13 minutes when he
should have been on the job. Upon asking, Tom indi-
cated that he left for lunch at 5 minutes to 12:00.
Tom’s answer to account for 13 minutes lost time was
that he had to go to the bathroom like anybody else.
While he had all lunch time to go to the bathroom, why
did he go to the bathroom right after lunch hour? He
was also instructed that if he had a medical emergency,
he should have informed someone in the office so we
did not have to look for him.
Unauthorized absence from post of duty, during reg-
ularly scheduled tour of duty, is an infraction against
hospital policy and cannot go unnoticed.
Below this paragraph were spaces for Thakkar and ‘‘Tom
Blythewood’’ (i.e., not a boilerplate ‘‘Employee’’) to sign
and date. Above the space for Blythewood’s signature is the
typed sentence:
I have seen this memo and have discussed it with the
management.
As discussed below, Respondent denies that issuance of the
October 10 memorandum constituted discipline of
Blythewood.
Blythewood examined the memorandum and then told
Thakkar that, if he was to be disciplined for spending too
much time in the washroom, so should all other maintenance
department employees. Blythewood began giving examples
of employees who spent ‘‘excessive’’ time in the washroom
by reading the names of maintenance department employees
from some list that Blythewood had brought to the meeting.
When Blythewood got to Spina’s name, further according to
Blythewood:
Spina looked over at me told me to shut up—that this
matter didn’t concern anybody else but me.
And I . . . said, ‘‘Well, Spina, you can shut up and
you can leave because I didn’t ask you to be here.’’
And Spina said, ‘‘No, I’m not here for you; I’m here
for Govind.’’
Thakkar said nothing during this exchange.18
On direct examination, Thakkar agreed that Blythewood
objected to the presence of Spina at the October 10 meeting,
but management called him anyway. Thakkar was asked, and
he testified:
Q. What occurred that led you to give the discipli-
nary action that we’re talking about—the three-day sus-
pension?
A. When Spina was coming into the office, Tom was
laid back in the chair with a contract, union contract in
his hand. And he asked Spina right away, ‘‘Spina, do
you have your contract with you?’’ Spina said ‘‘No.’’
[Blythewood said,] ‘‘Then go get it.’’ Then Guy said,
‘‘You don’t order me to do things.’’ [Blythewood said],
‘‘What the hell; go get your contract. You can’t be here
if you don’t have your contract with you; you’re a
Union steward.’’ And Spina said, ‘‘Hey, you don’t
order me to do things; I don’t order you to do things.’’
436 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
And then it was going on. And then Tom just got angry
and he started talking—[saying], ‘‘What the hell, what
is the matter with you, Spina? Go get your contract or
get the fuck out of here.’’ That’s exactly—that’s the
words he used. And then I was making some [palms
forward] hand signs to [indicate], ‘‘Hey, take it easy;
take it easy.’’ And there were some exchanges about
‘‘you shut up,’’ [and] ‘‘you shut up.’’ It went that far.
Q. Did Mr. Blythewood ever come up out of his re-
clining position?
A. He was—it appeared to me that he was ready to
attack Spina; he was that angry.
Q. Fine. You heard Mr. Blythewood testify yesterday
with regard to that incident. Was that the tone and the
level of his voice on the occasion that we’re talking
about?
A. No, that was—that was—
Q. Would you describe what the tone of his voice
was, and whether it was loud or not?
A. He was angry. He said, ‘‘Go get the hell out of
here. Go get the fuck out of here. Go get your con-
tract.’’ I mean, he was shaking and he was—I was al-
most afraid that there might be a problem there.
The just-quoted testimony was offered by Respondent on
the second day of the hearing. However, pursuant to Rule
611(c), counsel for General Counsel had called Thakkar on
the first day. Thakkar was asked, if, during the grievance
meeting of October 10, Blythewood had used any word
stronger than ‘‘hell.’’ Thakkar responded that Blythewood
had. Thakkar was asked, and he testified:
Q. (By Ms. Modic): What word would that be?
A. I don’t remember what they were. But there was,
yes.
In his direct examination, Thakkar was asked why he had de-
nied, on the day before, that he could remember any word
used by Blythewood stronger than ‘‘hell.’’ Thakkar an-
swered:
Well, with women sitting here, I’m not—I mean, it’s
not—I don’t use those kind of language—we are not—
I mean it’s my religion that—I mean with women sit-
ting, you don’t use those kind of words. And I mean,
it’s beyond me.
Respondent also called Wachtl to testify on what happened
on October 10. Wachtl testified:
Kittrells was excused, and Tom was asked to stay,
along with Spina—at which time Govind had given
Tom a memo of record, a memo for record of an inci-
dent that had happened some days earlier. Tom was
very nonchalant; Tom approaches everything sort of
nonchalant. He was just sort of sitting back in the chair,
and he read the document and he looked at Govind and
he said something about that—‘‘Yeah, a lot of other
people come back from lunch late.’’ And he started
naming names . . . .
Mr. Spina, who was the union steward said now,
just—he turned to Tom; he said, ‘‘Tom, wait a minute
now; you don’t go telling things about your union
brothers. That’s not what the issue is here.’’
And Tom sort of sat up in his chair and he looked
at Spina and he said, ‘‘Spina, just shut the fuck up and
get the hell out of here.’’
Voices [were] raised—at which time Govind, who
was sitting across the desk sat forward and said, ‘‘Tom,
just calm down. Just shut up and listen; just be quiet.’’
And Tom said, ‘‘You shut up and listen; you listen.’’
He just got real vocal with Govind. I was sitting off to
the side, and as an observer, you see things that maybe
people in the actual action don’t see or recall what they
did—or realize.
Wachtl added that Blythewood ‘‘looked like he was capable
of just getting a hold of somebody, anybody,’’ but he did not
testify that Blythewood touched, or threatened to touch, or
tried to touch, anybody.
On rebuttal, Blythewood denied using the word ‘‘fuck’’ in
the October 10 meeting.
General Counsel contends that the fact that the above-
quoted October 10 memorandum concerning the October 4
washroom incident was given to Blythewood after a week’s
delay, and after the grievance meeting was scheduled, dem-
onstrates an unlawful discriminatory motive. While on direct
examination, Thakkar was asked, and he testified:
Q. (By Mr. Rotolo): Now Mr. Thakkar, there was
a—I’m not going to use the word delay, but there was
a passage of time between October 4th, when the inci-
dent occurred, and the date of this memo for record,
which was 10–10–91. Do you recall why?
A. Scheduling. And when the letter was ready,
maybe Tom wasn’t on duty, or I didn’t check into that,
but that—usually it happens, scheduling, that we don’t
get together right away.
Q. Did you feel there was a particular rush on this?
A. No, no. Remember, I want to add something, that
Tom—he’s a good worker. I mean, I would not, you
know, do anything otherwise for him. I just wanted to
make sure that we talked about this thing, but—I mean
I want to say that.
On the copy of October 10 memorandum that was received
in evidence, below the space for Blythewood’s signature, is
written: ‘‘Tom refuses to sign this.’’ Then follows Thakkar’s
signature.
Credibility Resolution (Deferred)
As discussed below, on October 11, Blythewood was
issued a warning notice and a 3-day suspension over his al-
leged conduct at the October 10 meeting; there was some
discussion of Blythewood’s October 10 conduct when the
suspension was imposed on October 11; Blythewood filed a
grievance over the suspension on October 23; and, on Octo-
ber 30, there was a meeting between Thakkar, Wachtl, and
Blythewood over Blythewood’s October 23 grievance. The
content of the October 11 discussion, and the content of Oc-
tober 30 grievance meeting, shed light on the credibility
issue immediately before me (whether Blythewood used a
curse word stronger than ‘‘hell’’ in the October 10 meeting).
Therefore, I shall defer entering the credibility resolution at
this point.
437ST. LUKE’S HOSPITAL
3. October 11, 1991; warning notice and suspension
over grievance meeting conduct; alleged
threat by Thakkar
On October 11, according to Blythewood, he told Amie,
in the earshot of Thakkar, that he was going to the personnel
office to file a grievance over the October 10 written coun-
seling that Thakkar had given him. When he got to person-
nel, a clerical employee told Blythewood that Thakkar had
called and told him to report back to maintenance department
immediately.
Blythewood went to Thakkar’s office where he was met
by Thakkar, Amie, and Wachtl. Thakkar presented
Blythewood with a disciplinary action form. It was marked
to indicate that a 3-day suspension was being imposed; the
offenses checked were ‘‘Uncooperative Attitude,’’ ‘‘Discour-
tesy,’’ and as ‘‘Other’’ Thakkar filled the blank by writing
‘‘Inappropriate language.’’ As the explanation, Thakkar had
written:
On October 10, 1991, at approximately 8:45 a.m.,
while discussing a 2nd step grievance regarding change
of duty hours and a memo for record issued you regard-
ing absence from place of duty, you displayed behavior
inappropriate for the situation. You became unruly and
extremely disruptive. Your abusive language directed
towards your union steward, by cursing and telling him
to ‘‘shut up,’’ was totally uncalled for. I had to instruct
you several times to take it easy but you persisted. This
type action has no place in our profession, cannot be
condoned nor will it be tolerated. You are hereby given
a 3-day suspension effective 10/14/91. Any recurrence
of this type behavior in the future will result in imme-
diate termination.
Blythewood asked if, by ‘‘abusive language,’’ Thakkar was
referring to his use of the word ‘‘hell.’’ Thakkar would not
answer.
Blythewood said he was being discriminated against be-
cause he had filed grievances. Thakkar responded, according
to Blythewood, ‘‘that I had an attitude; he didn’t like my at-
titude.’’ Blythewood asked Amie and Wachtl if they had a
problem with his work or his attitude; they replied that they
did not. Further according to Blythewood:
He [Thakkar] kept emphasizing that I needed to take
these three days and go home and think about it and
learn how to be ‘‘a team player.’’ He repeated those
words three times.
General Counsel contends that Thakkar’s repeated references
to ‘‘team player’’ was a threat in violation of Section 8(a)(1).
Neither Amie nor Wachtl nor Thakkar disputed Blythe-
wood’s account of the October 11 meeting.
To show discriminatory treatment, General Counsel intro-
duced evidence of how Respondent handled similar mis-
conduct by employee Wayne Fisher. May identified his Janu-
ary 14, 1991 first warning to Fisher for engaging in a shout-
ing match with another employee. The document states that
Fisher had been warned about such conduct in the past.
4. October 30, 1991; second grievance meeting;
Thakkar’s alleged promise
On October 23, after he had served the 3-day suspension,
Blythewood filed a grievance over the warning and suspen-
sion; in the grievance, Blythewood states, inter alia, that
Spina had told him during the October 10 meeting to ‘‘shut
up,’’ and Blythewood’s grievance further stated that there
had been ‘‘no cursing’’ in the meeting.
On October 30, Blythewood was again called to Thakkar’s
office. There, in the presence of Wachtl, Thakkar asked
Blythewood how his October 23 grievance could be resolved
without the matter going any further. Blythewood replied that
he had already served the suspension, and it was up to
Thakkar to suggest a way. Thakkar told Blythewood to think
about it. General Counsel contends that Thakkar’s asking
Blythewood how the grievance could be resolved was an im-
plicit promise of benefit in violation of Section 8(a)(1).
After this exchange between Blythewood and Thakkar, ac-
cording to Blythewood, Wachtl pointed to the October 23
grievance and said that some statements in it were true and
some were not. Blythewood asked which statements were not
true. Wachtl replied, ‘‘the part about Spina telling you to
shut up—that’s not true. You told Spina to shut the hell up.’’
Then, further according to Blythewood, Wachtl and he re-
peated themselves several times. Thakkar stopped the ex-
changes by stating to Wachtl, ‘‘Bob, we’re not here for that;
we don’t want to get into that.’’
Thakkar was not asked about the October 30 meeting; on
direct examination Wachtl was asked about it, but his testi-
mony did not differ from Blythewood’s about what was said.
That is, Wachtl did not deny that, when Thakkar asked what
parts of the grievance were inaccurate, Wachtl replied only
that Spina had not told him (Blythewood) to ‘‘shut up,’’ and
that he (Blythewood) had told Spina to ‘‘shut the hell up.’’
Credibility Resolution for October 10 Incident
Thakkar, on the second day that he testified, said that
Blythewood said ‘‘fuck’’ while the contract issues were
being discussed. Wachtl testified that Blythewood said
‘‘fuck’’ after the contract discussions were completed,
Kittrells was excused, and discipline was being dispensed.
The meeting had distinct parts; if the word had been used
by Blythewood in either, there would not be this conflict be-
tween Respondent’s witnesses about when.
Moreover, it is undisputed that, when Thakkar presented
Blythewood with the warning and suspension notice on Oc-
tober 11, Blythewood responded by asking Thakkar if the
notice was referring to his use of ‘‘hell.’’ Thakkar did not
reply. With all due deference to Thakkar’s religious sensitivi-
ties about when profanity can be repeated, there were no
women present at that time; if there actually had been more
than ‘‘hell’’ said by Blythewood, Thakkar would have men-
tioned it when challenged by Blythewood on October 11.
Finally, regarding what was said in the October 30 meet-
ing, conspicuous in its absence was any reply by Wachtl to
Blythewood that Blythewood said worse than ‘‘hell’’ on Oc-
tober 10. Even if Thakkar was too squeamish to quote the
f-word (or any of its many euphemisms, like ‘‘f-word’’) at
trial, Wachtl was not. Wachtl freely quoted it at trial, and he
assuredly would have quoted it at the October 30 meeting if
438 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
19 Thus, Wright Line, as cited and discussed infra, is not the cor-
rect standard to apply. See Mast Advertising, 304 NLRB 819 (1991).
Blythewood had used it on October 10, as Wachtl and
Thakkar (the second time he testified) described.
That is, even though he asked (on October 11), and asked
again (on October 30), what he had said that was so bad,
Blythewood was not told that he stood accused of anything
worse than the use of ‘‘hell,’’ until the trial testimony of
Wachtl and Thakkar (the second time). I cannot find other
than that the testimony of Wachtl and Thakkar was a post
hoc concoction. I find that, in the October 10 meeting,
Blythewood did not say ‘‘fuck.’’
II. ANALYSIS AND CONCLUSIONS
A. Alleged Violations of Section 8(a)(1)
1. May 20, 1991 threat by Wachtl to Yates
On May 20 Yates presented Wachtl with two grievances
on matters unrelated to anything else that had gone on before
on that day. I have found that, when he was presented with
these grievances, Wachtl told Yates that Yates should not go
over Wachtl’s head because Yates did not know what he was
getting into; I have further found that, at the same time,
Wachtl asked Yates why he was doing what he was doing
(filing many grievances), and Wachtl told Yates ‘‘all you’re
going to do is dig yourself a hole you’re never going to get
out of.’’ Yates left Wachtl’s office; then he came back and
asked what Wachtl had meant. Although at trial Wachtl gave
a virtual soliloquy about what he had meant, he told Yates
to take it, ‘‘however you want to take it.’’
I need not speculate whether Wachtl was motivated by
Yates’ previous grievance-filing activities, the grievances that
had just been presented, or some combination of the two, or
something that was totally unrelated. A reasonable employee
would have been left only with the impression that Respond-
ent intended to punish him because of his grievance-filing
activities. Yates asked Wachtl to disabuse him of such a im-
pression, but Wachtl refused, a fact that would fortify the im-
pression in any reasonable employee. In such circumstances,
the remark by Wachtl was a threat that violated Section
8(a)(1), as I find and conclude.
2. October 11, 1991 threat by Thakkar to Blythewood
It is undisputed that, when Blythewood objected to the 3-
day suspension issued on October 11, Thakkar replied (three
times) that Blythewood needed to be a ‘‘team player.’’ Gen-
eral Counsel argues that Thakkar’s admonition was a viola-
tive threat. On brief, Respondent does not argue the issue,
stating only that there was no conceivable threat ‘‘on Octo-
ber 10, 1991.’’ The complaint alleges that Thakkar threat-
ened an employee ‘‘[o]n or about October 10.’’ There is,
therefore, no variance in the pleading, and no failure to give
Respondent notice of what conduct was in issue. (Certainly,
Respondent did not, at trial, move to strike the allegation that
Section 8(a)(1) was violated on or about October 10, 1991.)
The discipline, as reflected by the warning notice that
Thakkar presented to Blythewood, was premised on alleged
abuse of Spina, the steward. Blythewood and Kittrells had
objected to the presence of Spina; but Thakkar insisted on
Spina’s presence, anyway. As Blythewood was reading from
the contract to present his and Kittrells’ grievances (over
scheduling and posting), Spina appeared. Blythewood asked
Spina to get his contract or leave. Spina refused stating,
‘‘No, I’m not here for you; I’m here for Govind.’’
If there was a company ‘‘team,’’ Spina was on it, at least
at that point. The union steward had, reprehensibly, abdicated
his responsibility to represent employees Blythewood and
Kittrells, and he was siding against their interests. Therefore,
Thakkar was telling, indeed warning, Blythewood that he
should be more like ‘‘team player’’ Spina. As such,
Thakkar’s admonition to Blythewood was a threat in viola-
tion of Section 8(a)(1), as I find and conclude.
3. October 30, 1991 promise to Blythewood by Thakkar
As I have found, on October 30, Thakkar told Blythewood
that he would like Blythewood’s grievance over his suspen-
sion to go no further; he also told Blythewood to think about
it. On brief, General Counsel argues that these remarks were
coercive, but cites no case on the point and does not suggest
any reasonable basis for the conclusion. I find no element of
coercion, and I shall recommend that this allegation of the
complaint be dismissed.
B. Alleged Violations of Section 8(a)(3)
There are two categories of 8(a)(3) violations alleged here:
(1) discipline of an employee, Blythewood, for conduct con-
current with the exercise of union, or protected concerted, ac-
tivities (presenting grievances); and (2) discipline of employ-
ees, both Yates and Blythewood, because of their prior union
or protected concerted activities.
1. Blythewood’s warning notice and suspension
As the October 11 warning and suspension notice states,
Blythewood was disciplined for ‘‘abusive language directed
towards your union steward’’ during the October 10 griev-
ance meeting.
Where an employee engages in misconduct during the pro-
tected concerted activity of presenting a grievance, the activ-
ity nevertheless remains protected because ‘‘an employee’s
right to engage in concerted activity may permit some lee-
way for impulsive behavior which must be balanced against
the employer’s right to maintain order and respect.’’ NLRB
v. Thor Power Tool Co., 351 F.2d 584, 587 (7th Cir. 1965),
enfg. 148 NLRB 1379 (1964). In that case, the employee
called the employer representative, not the union representa-
tive, a crude name as a grievance meeting broke up. The
Board held that the remark was made as part of the res
gestae of the meeting and was thus protected.
The October 11 discipline of Blythewood falls within the
Thor Power Tool category of protected activities.19 I have
found that, at the October 10 grievance meeting, there was
no misconduct, at least to the extent that Respondent con-
tends. Assuming, however, that there was some misconduct,
it occurred during the course of a grievance-presentation by
Blythewood. Thakkar and Wachtl did not agree whether
Blythewood’s alleged misconduct occurred before or after
the issuance of the disciplinary memorandum. Assuming
truth to either version, the alleged misconduct happened
while Blythewood was, nevertheless, grieving; he was griev-
ing scheduling and posting, or he was grieving the issuance
439ST. LUKE’S HOSPITAL
20 The contract provides for oral presentation of grievances as a
first step. (The contract also calls for initial presentation to the first-
line supervisor; however, this was the position in which Thakkar
was, in effect, acting at the time.)
21 If it were necessary, I would also find that Respondent’s treat-
ment of Fisher’s misconduct is evidence of discriminatory treatment
of Blythewood.
22 251 NLRB at 1087.
23 In some quarters ‘‘unauthorized absence from post’’ is dis-
ciplined most severely.
of the memorandum regarding the October 4 washroom inci-
dent.20 Even if he was not grieving, his conduct occurred in
the res gestae of a grievance meeting, as in Thor Power
Tool.
The Board will not find that the statutory protection is lost
without evidence that the employee’s conduct toward an em-
ployer’s representative ‘‘was so offensive, defamatory or op-
probrious as to remove it from the protection of the Act.’’
Ben Pekin Corp., 181 NLRB 1025 (1970). There are no
cases that establish standard by which conduct directed at a
steward during a grievance meeting should be measured, but
presumably it would be at least as great.
Using gross profanity while presenting a grievance has
never been held, without more, to remove the Act’s protec-
tion from an employee. However, even if Blythewood had
used gross profanity, the profanity was directed at (the per-
fidious) Spina, and no one else. (The written warning notice
so states; Thakkar so testified; and Wachtl’s testimony that
Blythewood had ‘‘got real vocal with Govind’’ was nec-
essarily false.) Also, although Thakkar testified that ‘‘I was
almost afraid that there might be a problem there,’’ there is
no evidence that Blythewood engaged in any physical abuse
of anyone.
Therefore, because Respondent has failed to demonstrate
that Blythewood engaged in unprotected conduct as he pre-
sented the grievances, the issuance of a warning notice to,
and suspension of, Blythewood for his conduct (toward the
steward) during the October 10 meeting constituted viola-
tions of Section 8(a)(3), as I find and conclude.21
2. The remaining 8(a)(3) allegations
The law dispositive of the remaining 8(a)(3) allegations is
stated in Wright Line, 251 NLRB 1083 (1980), enfd. 662
F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982),
approved in NLRB v. Transportation Management Corp., 462
U.S. 393 (1983). General Counsel has the initial burden of
establishing a prima facie case sufficient to support an infer-
ence that union or other concerted activity that is protected
by the Act was a motivating factor in Respondent’s action
that is alleged to constitute discrimination in violation of
Section 8(a)(1) or (3). Once this is established, the burden
shifts to Respondent to come forward with evidence that the
alleged discriminatory conduct would have taken place even
in the absence of the protected activity. If Respondent goes
forward with such evidence, General Counsel ‘‘is further re-
quired to rebut the employer’s asserted defense by dem-
onstrating that the [alleged discrimination] would not have
taken place in the absence of the employee’s protected activi-
ties.’’22
To meet its burden under Wright Line, it is not enough for
an employer to show that an employee, for whom General
Counsel has presented a prima facie case of violative dis-
crimination, engaged in misconduct for which the employee
could have been discharged or otherwise disciplined. The Re-
spondent must show that it ‘‘would have’’ discharged, or
otherwise disciplined, the employee for the misconduct in
question. Hrasco Corp., 304 NLRB 729 (1991).
Therefore, the first inquiry is whether the record contains
a prima facie case of discrimination proscribed by the Act,
or credible evidence that the alleged discriminatees have
been disciplined, that the Respondent knew or suspected that
the alleged discriminatees had engaged in union or other pro-
tected concerted activity at the time it decided to discipline
them, and that Respondent’s decision to discipline or dis-
charge the employee was motivated, at least in part, by ani-
mus toward their union or protected concerted activities.
Chelsea Homes, 298 NLRB 813 (1990). If such a prima facie
case is held to have been established, an inquiry will be
made whether the defense has been rebutted, either by show-
ing that it is without factual basis or by a showing that it
is pretextual. Electrowire Truck Products Group, 305 NLRB
1015 (1991).
a. The prima facie cases
(1) The discipline imposed
The first issue is which of the remaining actions by Re-
spondent constituted discipline. There is no issue in regard
to what happened to Yates; Respondent concedes that he was
disciplined, and discharged, as alleged in the complaint.
However, whether Blythewood suffered discipline on Octo-
ber 4 and 10, as alleged, is in issue.
The complaint alleges that Thakkar gave an oral warning
to Blythewood on October 4, in violation of Section 8(a)(3).
On brief, General Counsel does not advance any reason for
holding that a warning, violative or otherwise, was issued
when Thakkar told Blythewood that he should have been
burning trash, as Blythewood described. This was simply a
statement of a manager telling an employee to ‘‘get to
work.’’ I shall recommend dismissal of this allegation of the
complaint.
However, I believe, and conclude, that Blythewood was
disciplined by Thakkar’s October 10 ‘‘Memo for the
Record.’’ Respondent produced Labor Relations Vice Presi-
dent Forrestall to testify that such memoranda have not been
used for disciplinary purposes. However, no matter what pur-
poses such memoranda have served before, this one was pre-
sented to Blythewood as discipline. It was presented in the
locus of managerial authority, Thakkar’s office; the steward
(over the employee’s protest) had been summoned; it was in-
troduced as constituting a ‘‘record’’; it was concluded with
words of gravity and warning, to wit, ‘‘Unauthorized absence
from post23 . . . infraction against hospital policy . . . can-
not go unnoticed’’; it was presented for signature by the em-
ployee; and it was further made a matter of record that the
employee refused to sign. That is, Respondent handled the
memorandum as it did any acknowledged disciplinary memo-
randum, and any employee would reasonably have believed
that he, in fact, had been disciplined by issuance of the Octo-
ber 10 memorandum.
440 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
24 I have previously rejected General Counsel’s contention that Re-
spondent received the amended charge in Case 8–CA–23524 before
the evening of May 20, when, in a telephone call to his home, Yates
was, in effect, notified of impending discipline.
25 Respondent also denies knowledge of Blythewood’s October 11
attempt to file a grievance before Thakkar decided to issue the sus-
pension of that date; that discipline has been found violative on an
independent basis, and this question need not be decided.
26 See Board Ford, Inc., 222 NLRB 922 (1976); Hotel & Res-
taurant Employees Local 19, 240 NLRB 240, 246 (1979).
27 Manimark Corp., 307 NLRB 1059 (1992).
28 Robinson testified that, ‘‘at the time,’’ he was a nonsmoker;
however, there is no evidence that May knew that.
29 Compare Champion Parts Rebuilders, 260 NLRB 731, 733
(1982), in which a prolific grievance-filer engaged in certain conduct
which one supervisor pronounced permissible, but another supervisor
punished; a violation was found, the Board noting that there was no
legitimate explanation for the reappraisal of the conduct.
(2) Knowledge
General Counsel contends that specific knowledge of some
grievances or charges prompted the discipline in question.
Respondent admits knowledge of most of such grievances
and charges,24 but it denies that May had knowledge of
Yates’ September 10, 1990 grievance when he decided to
discipline Yates over the windows and smoking incident.25
I do not believe that May was without knowledge of
Yates’ September 10 grievances when he decided to do
something about the windows and smoking incident. Before
the grievances were filed May told Amie and Robinson that
he was going to do nothing about ‘‘the incident’’ (May’s
words); then he did something. May did not testify that he
changed his mind for some reason other than the grievance-
filings; May testified that he did not change his mind at all.
Burke admitted that he knew that Yates at least attempted to
file a grievance around noon on September 10. It is too
much to believe, and I do not believe, that Burke did not
convey this knowledge to May. At any rate, knowledge by
Burke is imputed to all of Respondent’s agents26 and, as
found above, there is no probative evidence that May de-
cided to discipline Yates before Burke attained such knowl-
edge. I find that May knew of Yates’ September 10 griev-
ances, and their content, before he decided to issue the dis-
ciplinary warning notice of September 11, 1990.
(3) Animus
Animus is clear. The threats to Blythewood and Yates, as
found above, constitute clear evidence of animus towards the
employees’ union, and protected, concerted activities of fil-
ing grievances. Even clearer evidence of animus is found in
the suspension of Blythewood because he insisted on pre-
senting his grievance without suffering the interference from
Spina, who was there ‘‘for Govind’’ and not the employees.
Accordingly, I find and conclude that General Counsel has
presented a prima facie case that the discipline issued to
Yates and Blythewood violated Section 8(a)(3). The next
issue is whether Respondent had demonstrated that the dis-
cipline would have been imposed absent their union or pro-
tected concerted activities of filing charges under the Act and
grievances.
b. The defenses and conclusions on the remaining
8(a)(3) allegations
(1) Yates’ first warning notice; smoking and covering
interior windows
As I have found, when, on September 10, 1990, May ap-
proached the incinerator operators’ office, he found that the
windows were blocked by various items, and he saw (or
smelled) that Yates had allowed smoking in the office.
On August 30, 1990, McGraw issued an unequivocal order
that ‘‘any’’ materials blocking the view from the incinerator
operators’ office were to be removed. However, Plant Engi-
neer Amie was present when May found the windows
blocked on September 10; Amie had to have seen the mate-
rials before May did, as May assuredly realized. But May
said nothing to Supervisor Amie about the window-obstruc-
tion (except, shortly thereafter, May told Amie that he was
not going to do anything about it). Even down to the week-
end before this trial, there were at least some articles block-
ing the windows, as Blythewood testified. That is, before,
during, and after the fact, Respondent’s supervision had con-
doned blockage of the windows in conflict with McGraw’s
memorandum.
Moreover, assuming that Yates was smoking, and Amie
was not smoking, May had equal notice that Supervisor
Amie was ‘‘allowing smoking to occur in the incinerator op-
erator’s office’’ as the warning described the offense. Again,
May did no more to Amie than assure him that ‘‘I’m really
not going to do anything regarding the incident that oc-
curred.’’
Allowing a supervisor to do something for which an em-
ployee is disciplined is discrimination against the em-
ployee,27 and I find that Yates was discriminated against
when May did nothing to discipline Amie for the same al-
leged transgressions of allowing materials to block the win-
dow and allowing smoking in the incinerator operators’ of-
fice.
Moreover, May had at least equal reason to believe that
Supervisor Amie and Robinson were, in fact, smoking. When
he smelled the cigarette smoke and saw the butts, May asked
Yates, Robinson, and Supervisor Amie if they had been
smoking. Robinson and Amie did not answer (at least ac-
cording to May’s testimony). Yates admitted ownership of
the package of cigarettes on the table, but he denied that he
had been smoking. That is, three people (including a super-
visor) were asked if they were smoking; and the only person
disciplined for smoking was the person who denied it,
Yates.28 Again, this was discriminatory treatment of Yates.
McGraw’s memorandum and the general no-smoking pol-
icy, notwithstanding, if anything that Yates had been doing,
or suspected of doing, really constituted a transgression oth-
erwise warranting discipline, something would have been
said to Supervisor Amie at the time to so indicate. However,
nothing was said to Amie, or done to Blythewood or Robin-
son, until Yates filed his October 10 grievances, one of
which identified him, for the first time, as an assistant stew-
ard (and one that already had a record of prolific grievance-
filings).29
In summary, the discrimination against Yates came almost
immediately after the assurance by May that ‘‘I’m really not
going to do anything regarding the incident that occurred,’’
and it did come immediately after the filing of the grievances
which identified Yates as a new assistant steward. In these
441ST. LUKE’S HOSPITAL
30 See Yukon Mfg. Co., 310 NLRB 324 (1993), in which the Board
affirmed a conclusion that: ‘‘The aggrandizement of the offense is,
itself, indicative of pretext.’’
31 Discriminatory treatment is also shown where any employee
was issued warning notices only for being tardy when they were
only tardy. This would include, for example, the first warning to
Dan May.
circumstances, I am compelled to conclude, as I do, that Re-
spondent has not demonstrated that it would have disciplined
Yates over the incident notwithstanding his union or pro-
tected concerted activities, and that, by the issuance of the
September 11, 1990 warning notice to Yates, Respondent
violated Section 8(a)(3) of the Act.
(2) Yates’ second warning notice, being absent or tardy,
and not following instructions
As I have found, Yates was granted permission to be off
February 4 and 5; then, on February 6, May granted Yates
permission to be off a third day, but with an admonition to
be present, at 7 a.m., on February 7. Yates overslept on Feb-
ruary 7, and did not appear until 10 a.m.
As irresponsible as Yates’ conduct appears to have been,
the issue is whether Respondent would have issued Yates a
warning notice for ‘‘Absenteeism’’ had he not engaged in his
grievance-filing activities.
Yates was not absent; he was tardy, albeit extremely so.
There is a difference, contrary to Respondent’s statement on
brief; five acts of tardiness will warrant discharge under Re-
spondent’s disciplinary system, but it takes only three ab-
sences to produce the same result.
It may not have been unreasonable for May to have made
out ‘‘absence’’ notation before Yates finally appeared on
February 7; Yates had not agreed to come in when May
called Yates’ home, and May would reasonably have thought
that Yates was going to be absent. But then Yates did ap-
pear. The issue becomes: Why did May persevere in the cat-
egorization of the offense as an absence when it had proved
to be erroneous?
Yates argued when the discipline was dispensed, and he
argued again in a grievance meeting that he had not been ab-
sent, only tardy. However, neither May nor Forrestall would
rescind the enhanced penalty (by simply moving the chck
mark on the notice, or otherwise); they did not explain to
Yates why they would not do so; they attempted no expla-
nation before me; and Respondent attempts no explanation
on brief.
Under the circumstances, I find and conclude that Re-
spondent has not come forward with evidence that it would
have imposed the enhanced penalty on Yates even if he had
not filed grievances, or become the assistant steward,30 and
the prima facie case presented by General Counsel has not
been rebutted.31
Accordingly, I find and conclude that by issuance of the
February 7 warning notice to Yates, as it applied to his ‘‘ab-
sence’’ violated Section 8(a)(3).
There is no evidence that specifically supports the 8(a)(4)
allegation on this incident, and a finding would not add
meaningfully to the remedy here. Accordingly, I shall rec-
ommend dismissal of that allegation of the complaint.
(3) Yates’ third warning notice; excess overtime and
early reporting
As I have found, on Sunday, May 19, when no supervisors
were present in the incinerator area, Yates worked 2 hours
overtime. On Monday, May 20, he appeared for work and
began working, again when no supervisors were present, at
1 a.m., and continued working until 8 a.m. when Wachtl ap-
peared and told Yates to leave. Before he departed, Yates
handed Wachtl two grievances on unrelated events that had
happened at some point before May 20; Wachtl’s response
to being presented with these grievances, as discussed above,
was a threat in violation of Section 8(a)(1). On May 21
Yates was presented with a third and ‘‘final’’ warning notice
that imposed a 3-day suspension for failure to follow instruc-
tions by working 2 hours of unauthorized overtime on May
19, and having punched in 4 hours early on May 20.
As I have also found, Wachtl and Yates did not discuss
when the incinerator and scrubber were to be cleaned when
Wachtl told Yates of the coming schedule change of May 12.
Between February 22 and May 12, Yates did those duties on
overtime; however, as Yates’ affidavit admitted, he always
told Wachtl when he was going to work overtime; and pre-
sumably, this would have included overtime to clean the in-
cinerator and scrubber. When Yates did that, he was seeking
permission to work overtime, in accord with the February 22
memorandum.
Yates worked the week before May 19, but there is not
the slightest suggestion of why he would not have told
Wachtl during that week that he was going to work overtime
on the coming Sunday. Also there is no testimony about why
Yates stayed on Sunday until 2 p.m. (He testified that the
chore usually took him several hours; but he did not testify
that it took him that long on May 19, or that the 10 hours
were required by a combination of incinerator-cleaning and
his other duties.) I believe, and find, that Yates was ‘‘run-
ning the meter,’’ attempting to accumulate overtime pay
without express or implicit authorization.
Yates was scheduled to work until 1:10 p.m. on Monday,
May 20. He appeared at 1 a.m., 4 hours early. Even with his
generous estimates of the time required to clean the scrubber,
this was outrageously early. Again, he did not tell Wachtl
that he planned to come in early (as he had done from Feb-
ruary 22 to May 12). I find, Yates was attempting, a second
time, to take advantage of the situation in order to
unjustifiably accumulate overtime pay without express or im-
plicit authorization.
Therefore, some discipline was in order; the issue be-
comes, would Respondent have given Yates a written warn-
ing notice, ‘‘third’’ or otherwise, and a suspension, for that
conduct. Possibly not, but there is no evidence that any other
employee conducted himself as did Yates, and no evidence
of discriminatory treatment against Yates in this instance. In
this posture of the case, I find and conclude that the Re-
spondent has met its burden under Wright Line to dem-
onstrate that it would have warned and suspended Yates even
absent his prior union or protected concerted activities.
(4) Yates’ discharge; failure to fill chemical tank and
not calling in absence
I have found that, when he went to the incinerator opera-
tors’ office on June 4, Kajder did not expressly tell Yates to
442 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
32 Br. 18.
33 Yates claimed, and received, sick pay for the 1-1/2 days that he
missed that week.
34 See generally Klate Holte Co., 161 NLRB 1606, 1612 (1966).
See specifically A&T Mfg. Co., 276 NLRB 1183 (1985), in which
the Board found nonviolative the discharge of an employee who had
failed to obey a known requirement to call in an absence, even
though the employer had previously announced an intention unlaw-
fully to discriminate against him.
fill the caustic chemical tank. However, Yates knew that the
tank was low and that it was his duty to fill it, and to do
so on that day. It is undisputed that Yates had, that morning,
checked out the tank-filling equipment. Moreover, it would
defy logic to conclude that Yates, in good faith, believed that
Kajder had come to the incinerator operators’ office to re-
port, merely as an academic matter, that the caustic tank
alarm had sounded. Yates (with Blythewood) ‘‘ran’’ down to
the tank for no reason other than that, implicitly, if not ex-
pressly, Kajder had given them an order to do something.
That is, although Kajder did not couch his statement to Yates
as an order, Yates knew perfectly well that Kajder was tell-
ing him that the tank was to be filled, and Yates was the per-
son selected to do it, and do it then. (I reject General Coun-
sel’s assertion that Respondent should have assigned some-
one else to do the job; this argument is an attempted substi-
tution of General Counsel’s judgment for that of Respond-
ent.)
As he testified, when Yates got to the lower level of the
building, he found that the tank needed to be purged, as well
as filled. At that point, he could have called back upstairs
to find if he was authorized to work the overtime. Instead
of doing that, at the suggestion of Blythewood, Yates just de-
cided to let it wait until the next day. In so doing, Yates was
refusing an order (implied if not express) and Respondent
has demonstrated that he would have been disciplined for
this conduct, his protected concerted activities notwithstand-
ing.
Then on, June 6, although he had been directed to come
back to the Hospital’s health service, Yates went to his per-
sonal physician, and he did so without calling in on that date.
Counsel for General Counsel argues: ‘‘Yates did not call in
absent on June 6, 1991, because he felt both the contract and
the documentation he provided to the office (upon leaving on
June 5) made this notification unnecessary.’’32 I disagree.
The argument is really one that Respondent should have been
able to figure it out, so there was no necessity for Yates to
follow the rule about reporting a prospective absence an hour
before a scheduled shift. This is a case of General Counsel’s
attempted substitution of her judgment of what is necessary
for that of Respondent’s. Moreover, the documentation left
by Yates indicated that he would be limited, but whether Re-
spondent would have accepted that statement as disqualifying
Yates from all work (with or without help) was a judgment
for Respondent, not Yates, to make.
The rule requiring reporting was clear; there is no conceiv-
able argument that the quoted sections of the contract (which
refer to preapproved, unpaid, leaves of absence) nullified ap-
plication of the rule in Yates’ absence of June 6 (for which
he was claiming sick pay).33 There is no evidence of dis-
criminatory treatment of other employees, especially employ-
ees who had previously, validly, been suspended.
I have found that Yates was threatened by Wachtl, specifi-
cally in regard to his grievance-filing activities. And Yates
received two written warnings because of such activities. But
being once threatened and twice disciplined, unlawfully,
hardly gives an employee license to disregard well-estab-
lished, known, nondiscriminatory, disciplinary rules. Con-
versely, even if an employer bears animus toward known
union or protected concerted activities of an employee, it is
not estopped from issuing nondiscriminatory disciple to the
employee, if that employee hands the employer a reason to
do so.34
In these circumstances, I find and conclude that Respond-
ent has met its burden of proving that it would have dis-
charged Yates, notwithstanding his prior union and protected
concerted activities, including his filing of charges under the
Act. Accordingly, I shall recommend that the complaint be
dismissed in this regard.
(5) Blythewood’s disciplinary memorandum of October
10; washroom incident of October 4
Blythewood took 13 extra minutes to return from lunch on
October 4. At the time, Thakkar did nothing except tell him
to get to work. But then, on October 10, when a grievance
meeting was convened, Thakkar had a disciplinary memoran-
dum waiting for him. To meet its Wright Line burden, coun-
sel asked Thakkar to explain the timing of the memorandum.
In prefacing his question to Thakkar, counsel for Respondent
said he would not use the word ‘‘delay,’’ but he did; he did
because there was no other word for it. And the issue be-
comes: why did Thakkar delay in disciplining Blythewood
over the October 4 washroom incident until October 10,
when a meeting over prior grievances convened.
Thakkar answered that ‘‘maybe’’ Blythewood was not on
duty during the intervening week. At minimum, this testi-
mony was short of evidence that Blythewood was not present
during the week.
No other evidence on the point having been offered, I find
and conclude that Respondent has not met its burden under
Wright Line, and that by issuance of the October 10 discipli-
nary memorandum to Blythewood, Respondent violated Sec-
tion 8(a)(3) of the Act.
CONCLUSIONS OF LAW
1. By threatening employees with discharge because they
filed grievances under a collective-bargaining agreement, Re-
spondent has violated Section 8(a)(1) of the Act.
2. By the following acts and conduct, Respondent has vio-
lated Section 8(a)(3) of the Act
(a) Issuing warning notices to Anthony Yates on Septem-
ber 11, 1990, and February 7, 1991, because of his union or
protected concerted activities.
(b) Issuing a disciplinary memorandum to Thomas
Blythewood on October 10, 1991, and suspending
Blythewood for a period of 3 days on October 14, 1991, be-
cause of his union or protected concerted activities.
3. Respondent’s other actions, as described here, did not
violate the Act.
443ST. LUKE’S HOSPITAL
35 Interest shall be computed as prescribed in New Horizons for the
Retarded, 283 NLRB 1173 (1987).
36 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
37 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act. Respondent having unlaw-
fully suspended Thomas Blythewood for a period of 3 days
shall be required to make Blythewood whole, with interest,35
for any loss of pay or other benefits that he may have suf-
fered as a result of the suspension.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended36
ORDER
The Respondent, Saint Luke’s Hospital, Cleveland, Ohio,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening employees with discharge or other dis-
crimination because they filed grievances under a collective-
bargaining agreement.
(b) Suspending employees, and issuing written notices to
employees, because they have filed grievances under a col-
lective-bargaining agreement.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Make Thomas Blythewood whole, with interest, for
any loss in pay that he may have suffered as a result of his
discriminatory suspension on or about October 14, 1991.
(b) Remove from its files any reference to the unlawful
written warning notices issued to Anthony Yates on Septem-
ber 11, 1990, and February 7, 1991, and issued to Thomas
Blythewood on October 10 and 11, 1991, and notify those
employees, in writing, that this has been done and that the
warning notices will not be used against them in any way.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(d) Post at its facility in Cleveland, Ohio, copies of the at-
tached notice marked ‘‘Appendix.’’37 Copies of the notice,
on forms provided by the Regional Director for Region 8,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and maintained 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, de-
faced, or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps 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 vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT threaten you with discharge or other dis-
crimination because you have filed grievances under a col-
lective-bargaining agreement.
WE WILL NOT suspend you, or issue written notices to
you, because you have filed grievances under a collective-
bargaining agreement.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed them by Section 7 of the Act.
WE WILL make Thomas Blythewood whole, with interest,
for any loss of pay that he may have suffered as a result of
his discriminatory suspension on October 14, 1991.
WE WILL remove from our files any reference to unlawful
written warning notices that we issued to Anthony Yates and
Thomas Blythewood, and WE WILL notify them, in writing,
that this has been done and that the warning notices will not
be used against them in any way.
SAINT LUKE’S HOSPITAL