Maine Medical Centers

MAINE MEDICAL CENTERS 707 Maine Medical Center and 1199 National Union of Hospital & Health Care Employees, RWDSU/ AFL-CIO. Case 1-CA-12001 March 27, 1980 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND TRUESDALE On October 3, 1979, Administrative Law Judge Platonia P. Kirkwood issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and Re- spondent filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,l and conclusions of the Administrative Law Judge and to adopt her recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. I Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credi- bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing her find- ings. We hereby correct the following inadvertent errors of the Administra- tive Law Judge which are insufficient to affect our decision herein: In sec. II, B of her Decision she refers to one of the units Flaherty offered Cohen an opportunity to interview for transfer as R-2 rather than R-l; in sec. V,A,l,(a) she stated that Flaherty sent Vogel the June 14, 1976, memo concerning Cohen's performance whereas Vogel sent Flaherty this memo; and in sec. V,A,l,(b) she stated that Gallant, rather than Miller, was the employee who persuaded Cohen to become a union adherent DECISION STATEMENT OF THE CASE PLATONIA P. KIRKWOOD, Administrative Law Judge: Upon a charge filed by 1199 National Union of Hospital & Health Care Employees, RWDSU/AFL-CIO (the Union hereafter), on July 14, 1976, and amended on Jan- uary 20, 1977, a complaint was issued on January 25, 1977, alleging violations of Section 8(a)(3) and (1) of the Act. The complaint asserts, in substance, that Respondent: (a) Disciplined and then discharged Jeffrey Cohen for 248 NLRB No. 101 reasons proscribed by Section 8(a)(3) and (1) of the Act; and (b) subjected Cohen to coercive verbal conduct in- dependently violative of Section 8(a)(1) of the Act. Re- spondent's answer denies the commission of any unlaw- ful conduct. A hearing was held before me in Portland, Maine, from May 9 to 12, 1977. Upon the entire record in this case' including my ob- servations of the witnesses and their demeanor and on due consideration also of the post-hearing briefs filed by Respondent and the General Counsel, I make the follow- ing: FINDINGS OF FACT 2 I. THE NATURE OF THE ISSUES The questions posed in this case are: 1. Whether Respondent in violation of Section 8(a)(1) of the Act engaged in verbal conduct which (a) "restrict- ed" Nurse Jeffrey Cohen's exercise of his Section 7 rights; or (b) implied that Nurse Cohen had been disci- plined or terminated because of his union activities. 2. Whether Respondent, in violation of Section 8(a)(3) and (1) of the Act, was impelled by antiunion consider- ations in taking the following personnel actions: (a) Giving Nurse Cohen a job-evaluation state- ment on April 20, 1976, which rated Cohen's over- all performance to that date as unsatisfactory; warn- ing Cohen he was on a 2-month probationary "shape-up or ship-out" status; and effecting his re- moval as a member of the Nursing Audit Commit- tee. (b) Suspending Cohen from the payroll pending management's resolution of Cohen's request-one presented through Respondent's grievance proce- dures-that the April 20, 1976, personnel actions be set aside. (c) Rejecting Cohen's grievance and then termi- nating Cohen on or about July 9, 1976. 11. BACKGROUND INFORMATION A. The Union Campaign The complaint's allegations that Nurse Jeffrey Cohen was harassed, disciplined, and terminated because of his union activities have, as their backdrop, the conduct of a campaign by the Union to organize all or part of Re- spondent's 2,500 hospital employees. The union cam- paign commenced in October 1975 and remained in active status for about a year. In February 1976 the Union filed a representation petition for a unit composed of Respondent's technical employees (Case -RC-4295).3 Respondent's unopposed post-hearing motion to correct certain errors in the transcript is hereby granted. 2 Respondent admits the jurisdictional allegations of the complaint and the Union's status as a labor organization. Accordingly, I find that Re- spondent's operations affect commerce within the meaning of Sec. 2(6) and (7) of the Act, and that the Union is a labor organization within the meaning of Sec 2(5) of the Act I Later, in April 1976. the Union filed another petition for a unit of service and maintenance employees, but it does not appear that any action was taken on this petition by the Board. MAINE MEDICAL CENTERS 707 708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD petition it also filed an unfair labor practice charge at- tributing to Respondent improper interference with lit- erature distribution activity on behalf of the Union. That charge was withdrawn sometime in early March 1976 pursuant to the provisions of an informal settlement agreement which provided, inter alia, for Respondent's posting of notices stating that proper distribution of lit- erature at the hospital entrances and nonwork areas would not be impeded in any way. There is no claim and no evidence that Respondent violated that settlement agreement's terms. The Board directed an election in the technical unit on July 2, 1976, and conducted that elec- tion on July 29, 1976, 20 days after Cohen was fired. The Union lost that election. In late 1976 the Board set that election aside on findings that certain of Respondent's su- pervisors (none of whom are involved in the instant case) had made objectionable statements to employees implying that Respondent would impose stricter rules or work practices if the Union were elected. The Union chose, however, not to proceed to any further election. It withdrew the representation petition and ultimately abandoned its campaign sometime in late 1976 or early 1977. On the appearance of the Union at the hospital, Re- spondent engaged the services of an outside concern, Modern Management Methods, Inc., both to plan and conduct a massive antiunion propaganda campaign in Respondent's behalf and to advise Respondent's supervi- sors about how they could aid in disseminating Respon- dent's antiunion message to the employees within the confines of the law. Respondent began its antiunion cam- paign in the fall of 1975 and maintained it for the dura- tion of the Union's presence on the scene. It disparaged the Union's leadership, the Union's strike record, and the Union's objectives, and otherwise expressed the idea that the Union's installation as a bargaining agent would not serve the best interests of the employees, the hospital, the patients, or the community. Additionally, officials and supervisory agents of Respondent met with groups of employees from time to time to talk about and against the Union. Respondent's president, Dr. Edward C. An- drews, as the official sponsor of the antiunion campaign signed many of the antiunion handbills. He also attended and spoke at a number of the meetings at which Respon- dent's antiunion message was disseminated. Dr. Andrews candidly admitted at the hearing that he personally en- tertained "intense" antipathy for the Union. General Counsel presented the above-recited facts about Respondent's conduct of the antiunion campaign together with copies of a large number of the handbills (largely in the form of letters signed by Dr. Andrews) solely as "background" evidence to show that Respon- dent was hostile to the Union and that it was determined to keep the Union out of its facilities if possible. 4 She also presented the documents forming part of the Board's official files in the representation cases to show that, by April 1976, when, as the complaint alleges, Respondent embarked upon a course of conduct to harass and to ter- minate Nurse Cohen, the Union and Respondent had ' She conceded that none of the propaganda disseminated by Respon- dent exceeded permissible 8(c) bounds. reason to anticipate the Board's issuance of a direction of election on one of the representation petitions then being processed by the Board; and each side's campaign activ- ity had been intensified, accordingly. B. Information About Cohen's Nursing Job and Review of His Job History RN Jeffrey Cohen was hired by Respondent on June 20, 1975, shortly after he was graduated from a 4-year nursing school. Following his satisfactory completion of a several-week orientation and training program, Cohen was assigned, in late July 1975, to a nursing position in a unit of the hospital known as the R-2 (Richards-2) unit. 5 Shortly after his assignment to that unit, RN Beth Vogel was installed as the unit's head nurse. Vogel had previ- ously served as a staff nurse in other units of the hospi- tal. The R-2 unit was an orthopedic unit containing ap- proximately 50 beds. The number of the patients in the unit at any one time varied from a low of 40 to a high of about 50, and included patients who required orthopedic surgery. The unit operated on a three-shift, round-the- clock basis. The regularly assigned complement of R-2 nursing personnel under Head Nurse Vogel's supervision was composed of six or seven professional nurses (RNs); three or four orthopedic technicians, who were also li- censed practical nurses (LPNs), and two or three nurses aides. Some of these employees had permanent day-shift positions. Others, like Cohen, worked on a rotating day- and night-shift basis. Additional RNs or LPNs were as- signed to the unit on an "as needed" basis from a "float pool" of nursing personnel maintained by Respondent for temporary assignment throughout the hospital. Under established hospital procedures, the R-2 unit (in common with most other hospital units) used the "team" concept for purposes of meeting its patient-care responsi- bilities. Accordingly, as a matter of regular day-to-day routine, each of the R-2 unit RNs was assigned to care for a specific number of patients in the unit as part of a team composed of from three to five employees-one or two RNs; one or two LPNs; and a nurses aide. The unit operated with two teams for each day shift and one team for the night shift.6 The head nurse or, in her absence, an RN appointed by her as the "charge nurse," selected the employees for each team on a day-to-day basis, des- ignated one of the team RNs as the "team leader," and distributed the unit's day-shift, patient-care load between the two teams. Whether assigned as a team member, or as a team leader, the basic job responsibility of each R-2 unit nurse remained the same. Each such nurse was to provide to an assigned number of the unit's patients the medication, treatment, and care as prescribed in the patient-care 5 In the nomenclature of the hospital, its 25 special-care nursing de- partments are called "units" or "floors." Each such unit had its own nursing staff. Each was under the separate supervision of a head nurse 6 On the night shift, a team as usually composed of one RN holding a permanent job in the R 2 unit, and an LPN assigned on a temporary basis from the hospital's "float pool." The R-2 unit RN, accordingly, covered all the charge-nurse, team-leader, and staff-nurse work functions on that shift. MAINE MIEDICAL CENTER 709 plans or orders issued by the patients' physicians or sur- geons and to make and record clinical observations and judgments about the patients' physical condition of a kind requiring the type of professional knowledge usual- ly associated with the title "registered nurse." According to the record, the job description of the staff nurse post provided, inter alia, for every staff nurse's assumption of team leader and "charge-nurse" re- sponsibilities at the request of the head nurse. In practice, however, newly hired nurses were not called upon to serve as team leaders until they had completed the initial 90-day probationary period of their employment. But, once permanent tenure was achieved, each staff RN was normally called upon to serve as team leader on rotation. With respect to the "charge-nurse" post, however, it ap- pears that only the more experienced of the unit's staff nurses were in fact called upon to serve in that capacity on any day shift.7 When designated as team leader, the RN assumed cer- tain special responsibilities. In addition to performing his or her own share of the team's patient-care tasks, the team leader was responsible for coordinating the work activities of team members; checking at regular hourly intervals to see if any changes in the day's medication or patient-care orders for the team's patients had been made by attending doctors; making sure such orders (as well as those already known at the start of the shift) were car- ried out by the team; and serving as the "resource" nurse for the team member whenever any of them needed in- formation or physical assistance, in the course of the workday, to carry out prescribed patient-care orders or to handle an unexpected patient-care problem. When designated as a "charge nurse," the RN substi- tuted for the head nurse in performing the responsibility of coordinating the work activity of the entire nursing staff for that shift, accompanying attending doctors in making patient rounds, and providing guidance and help, when needed, to the nursing staff. Cohen's day-to-day assignments comported with the above customs and practices. According to his uncontra- dicted testimony, he was put only on staff-nurse (team- member) duty for the first 3 or 4 months of his employ. Thereafter, and for the entire remaining period of his employ, he was put on "team-leader" and team-member duty on a rotating basis while on the day shift; and was on dual "team-leader" and "charge-nurse" duty on the night shift about six or seven times. The highlights of Cohen's job history, as they appear in his official personnel file are as follows: In November 1975, Cohen applied for a transfer to a posted vacant nursing post in the Hospital's psychiatric unit, one known as the P-6 unit. Peggy Bradstreet, head nurse of that unit, interviewed him; advised him she did not believe that at this time he had the requisite experi- 7 For obvious reasons, the responsibilities of the "charge nurse" on a day shift were of a more significant character than those of the "charge nurse" on the night shift. On the latter shift, as has been noted, the unit's patient-care activity was covered by a team composed of only a single RN member of the R-2's permanent nursing complement and one or two employees who were members of the hospital's "floating" nursing com- plement. The R-2 unit RN assigned to the night shift therefore func- tioned in the dual capacity of "team leader" and "charge nurse" in ob- serving and directing the ork activity of the "float-pool" employees. ence, leadership, organization, and verbal or written communication skills the job demanded; and therefore rejected his application. On February 27, 1976,8 Cohen received from Agnes Flaherty, Respondent's director of nurses, a letter notify- ing him of his appointment to a 3-member committee known as the nursing audit committee." As described by Flaherty's letter, the function of the audit committee was "to improve the quality of nursing care through a sys- tematic analysis and evaluation of entries made in the pa- tient's clerical records." The committee met once a month. Its members did not receive any additional pay. In early April, Cohen was counseled by RN Elizabeth Hargitt, the assistant director of nursing for personnel counseling, because her review of Cohen's attendance re- cords over the past 3 or 4 months disclosed that Cohen had called in "sick" a number of times and suggested a possible pattern of absenteeism. No disciplinary action was taken on that matter. 10 On April 20, Cohen received from Head Nurse Vogel a formal evaluation of his performance to that date, which rated him as an unsatisfactory employee. That statement also carried notice that from that date on Cohen was on a 60-day "shape-up or ship-out" proba- tionary status and Vogel would take immediate action to have him temporarily suspended from the audit commit- tee while the "shape-up or ship-out" warning remained in effect. On April 28, pursuant to Head Nurse Vogel's recom- mendation, Cohen was suspended from the audit commit- tee. On May 21, Cohen was given a "follow up" oral eval- uation by Vogel at a meeting also attended by Assistant Head Nurse Jewitt. He was told, in essence, that his per- formance and job attitude remained unsatisfactory in most significant respects.'' On May 29, Cohen invoked Respondent's established three-step grievance procedure to obtain the rejection of Vogel's evaluation and personnel action and suggested that the process begin at step two.i 2 8 From this point on all dates are 1976 unless otherwise stated. Cohen's appointment to the committee was recommended to Flaherty by its chair- person, RN Barbara Haas (a nurse who was not on the R-2 unit staff) after Haas approached Cohen and asked him if he would be willing to serve. 9 It was established routine for Hargitt to review attendance records of nurses on a quarterly basis and to meet with those whose records ap- peared questionable. Repeated absenteeism was cause for issuance first of a formal warning and then discharge. 'O The contents of that evaluation and subsequent "follow-up" evalua- tions are set out in full in the section of my Decision, infra, discussing the alleged 8(a)(3) violations. I At various points in the record the witnesses and/or counsel men- tioned May 26 as the date that conference was held. However, a written summary of that meeting, contemporaneously prepared by Vogel for the personnel files, bears the May 21 date. As that summary was adduced in evidence as a joint exhibit of the parties, I have assumed that May 21 is the correct date of the meeting. 12 The grievance procedure, as published in the employee handbook all hospital employees received, provided for three steps as follows: Step One-employee discussion of the grievance with the immedi- ate supervisor. Step Two-employee request for "formal review" by the depart- ment head who would then arrange a meeting at which "all con- cerned should be present." The aggrieved employee had the "right" Conrinued MAINE MEDICAL CENTER 709 710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On June 15, Cohen obtained a step-two hearing on his grievance at a meeting presided over by RN Flaherty, the top nursing department head, and attended also by Nurse Supervisor Winifred Rose, Head Nurse Vogel, and three employee "witnesses" Cohen brought with him. During the meeting's course, Cohen demanded, as a remedy: (1) that Head Nurse Vogel's evaluation be re- moved from his personnel file; (2) that he be transferred to the psychiatric unit known as the P-6 unit; and (3) that Vogel present him with a letter of apology.' 3 On June 17, Cohen received Flaherty's decision deny- ing his grievance but offering him an opportunity to in- terview for transfer to either of two other units, P-I-A or R-2, 4 where Flaherty had found, on inquiry, that there were available nursing jobs. Cohen refused the transfer offer so as to pursue his grievance to the final step. Flaherty then suspended Cohen from the payroll for the asserted reason that the "tension" between him and Vogel was affecting the proper delivery of patient care in the R-2 unit. She advised Cohen, however, that if his grievance was sustained at step three, he would be reinstated with backpay. On July 1, Cohen was given the step-three hearing on his grievance by Respondent's top official, Dr. An- drews.' 5 In addition to Dr. Andrews and Cohen, Per- sonnel Director Mayer was present at Respondent's re- quest, and LPN Gallant was present at Cohen's re- quest. 0 On July 9, Cohen received from Dr. Andrews a letter of discharge dated the prior day. The letter stated: After investigating and reviewing the facts and circumstances of your case with you and with all to present a verbal and/or written statement and to ask other em- ployees "to present information on his/her behalf." Step Three-the employee may request "further review" by the Executive Director at which time: (a) the department head who heard the grievance at Step two would "prepare a full report" of the Step two meeting, with copy to the employee; and (b) the Executive Director would arrange a meeting at which the employee could pre- sent any additional oral or written information. The handbook also stated that the aggrieved employee could "request the advice and assistance of the Personnel Director at any stage of the grievance procedure." la In preparation for that meeting, Flaherty solicited from Vogel her current views about Cohen. Vogel responded, on June 14, with a memo to Flaherty summarizing her prior evaluations of Cohen and declaring, in brief, that Cohen's performance and behavior had not since then demon- strated any "significant and sustained improvement." 4' Both were acute-care units which did not require the kind of spe- cialized patient care by nursing personnel as the R-2 unit did. '5 The meeting was originally scheduled for June 25, but was post- poned at Cohen's request so that Cohen could prepare his case. At the time he granted the postponement, Andrews informed Cohen that he could call on Donald Mayer. director of personnel, for any assistance he might wish in preparing for his grievance presentation. Mayer and Cohen met once in Mayer's office before the meeting with Andrews was held. Mayer explained the general policy of Respondent's grievance procedure, and advised Cohen, also, that his staff would provide any secretarial help Cohen might need. Cohen did not avail himself of the proffered services, but sometime before the July 1 meeting he himself prepared and submit- ted to Andrews a several-page "brief" in support of his grievance, setting forth a chronology of pertinent events together with certain relevant ex- hibits. 16 Don Fairey, the union organizer, and Ralph Tucker, the Union's at- torney, came to accompany Cohen to the meeting but Andrews refused them admittance on the ground that this matter was an "internal" one only, and that Respondent did not have its attorney present. other individuals involved including Mrs. Vogel and Miss Flaherty, it is my decision that the proba- tionary status imposed resulted solely from failure on your part to fulfill your job responsibilities and requirements in an appropriate fashion. In view of this, I am left with no recourse other than to advise you that your employment at Maine Medical Center is being terminated forthwith. The complaint asserts that all of the personnel actions on and after April 20, which had an adverse impact on Cohen's job interests, were discriminatory in character and that they were impelled by Respondent's antiunion- ism and its identification of Cohen as a union activist. 111. NURSE COHEN'S UNION ACTIVITIES AND RESPONDENT'S KNOWLEDGE OF THEM The record shows as follows with respect to Cohen's union activities and Respondent's knowledge of them at dates here relevant. Nurse Cohen joined the Union in November 1975 about 4 months after his hire by Respondent and became an active and vigorous union supporter. He solicited fellow employees to join the Union in the hospital halls, employee lounges, and the cafeteria. Beginning in Janu- ary, he regularly wore a union button on his uniform. He was one of three employees in his unit who did so. 7 His supervisor, Head Nurse Vogel, admittedly observed his button wearing and, on occasion, heard him discussing the Union in favorable terms. Nurse Cohen was also a regular distributor of union bulletins in the hospital entryways and in the hospital's nonwork areas. Between January 13 and May 11, he helped distribute each of the 21 handbills published by the Union in this period (6 up to April 20 and about 15 between then and May 11). Head Nurse Vogel admitted having seen Cohen leafleting for the Union sometime in April. In the forepart of May, Cohen and another staff nurse, RN Ann McPhee, had a couple of arguments about the Union's objectives, and information about those argu- ments was brought to Vogel's attention. The first argument took place a few days before May 6 and was provoked by a comment McPhee made in Cohen's presence when she observed LPN David Gal- lant picking up the pieces of a broken IV bottle in a hall- way outside a patient's room. McPhee's comment was to the effect that the Union would not allow Gallant to do the cleanup task. After that argument, Cohen solicited from Donald Fairey, one of the union organizers, a letter on the issue which Cohen showed to Vogel on or about May 6 and posted on the bulletin board. At the end of the evening he found the letter had been removed. 17 The other two R-2 unit employees who were known union support- ers were LPN David Gallant and Nurse Assistant George Miller. Ac- cording to Cohen, Miller was the one who "really got him interested in the Union." Miller had left Respondent's employ voluntarily by the date Cohen was terminated. LPN Gallant was still in Respondent's employ at the date of the hearing. The record shows, and Cohen admitted, that Gallant also engaged in vigorous solicitation activity and, like Cohen, spoke out in favor of the Union's cause to fellow employees during dis- cussions which took place, on occasion, in the presence of Head Nurse Vogel. - . MAINE MEDICAL CENTER 711 The second argument occurred about a week later. John Green, a painter, was working in the kitchen used by Vogel's nursing staff,' 8 while Cohen and LPN Susan Legrere were talking about the Union. McPhee came in and joined in the discussion when she overheard Cohen say that "nothing had changed" in Vogel's unit. McPhee interpreted Cohen's remark in this respect as criticism of Vogel and proceeded to Vogel's office to tell her of the conversation. Cohen followed McPhee to the office and tried to explain to Vogel that he was speaking of the hospital in general and did not mean to criticize her. Vogel told both McPhee and Cohen that it was neither the time nor the place to conduct that conversation. As will appear in other sections of this Decision, Gen- eral Counsel claims that: (a) Head Nurse Vogel subse- quently, on May 21, expressed directly to Cohen her dis- pleasure with his union activities and sought to restrain him from pursuing them; (b) Personnel Director Donald Mayer made a coercive remark to Cohen a few hours after Cohen was fired; and (c) in discussing Nurse Cohen's termination with employee Sandra Cohen (Nurse Cohen's wife), on or about July 15, Dr. Andrews told her that he would like to have a "friendly conversa- tion" with Cohen when this "Union business was over." 9 IV. THE ALLEGED UNLAWFUL VERBAL CONDUCT A. By Head Nurse Vogel General Counsel asserts that, at the "follow-up" evalu- ation meeting which Vogel and Assistant Head Nurse Bonnie Jewitt held with Cohen on May 21, and at a June 9 meeting with the members of the R-2 staff, Vogel made statements which imposed restraints on Cohen's Section 7 rights by "equating" Cohen's union solicitation or other union-supportive activities with "intimidation" of his fellow employees. The facts bearing on this allega- tion are as follows:20 18 The kitchen is normally used by the staff to service unit patients. Visitors are excluded. According to McPhee, patients sometimes come into the kitchen on their own even though the sign on the door forbids their entry. General Counsel also adduced evidence of other supervisory agents' post-discharge references to Cohen as a paid union agent in conversing with employees aobut Cohen's discharge. The two supervisors (Out-Pa- tient Unit Supervisor Philip Nelson and Chief Technician Denise Cop- pinger), to whom such remarks are attributed in the unrebutted testimony of employees John Green and Catherine Conley, played no part in any of the conduct described by the complaint and its litigation. Nor does Gen- eral Counsel claim that their reference to Nurse Cohen as a paid union agent-though erroneous-was intrusive on the employees' Section 7 rights As appears from documentary evidence Respondent adduced (Resp. Exh. 2) after I permitted Green and Conley to testify about the above remarks over Respondent's objection, the name of an individual named "Jeff Cohen" appears in a list of salaried union organizers the Union in- cluded as part of a financial report for the year ending September 30, 1975, which it filed with the Labor Department. Dr. Andrews testified and I find that a copy of that report was received by Respondent in its official mail on July 12, 3 days after Cohen was fired. 20 My narration of the facts I find and set out here and in subsequent sections of my Decision is drawn, in part, form a synthesis of testimony of both sides' witnesses which I regard as credible and, in part, from written reports or personnel records concerning Cohen which were ad- duced in evidence as joint exhibits of the parties. Some, though not all, of the here-relevant testimony given by Nurse Cohen, General Counsel's principal witness, conflicts or is inconsistent According to Vogel's credible testimony, sometime before May 21, Vogel was told by some of the R-2 em- ployees that Cohen was putting pressure on them to join or support the Union; "they felt a little nervous during hospital times"; and some had apparently suggested also that Cohen's overall attitude towards them was such that they found it difficult to work with him. She decided, accordingly, to speak to Cohen about the matter and did so at the conclusion of her remarks about his job perfor- mance at the "follow-up" evaluation conference she held with him on May 21. The highlights of her discussion with him on the matter are set out in her contemporane- ously prepared report of the May 21 conference with Cohen, as follows: 2 I [Vogel] told Jeff [Cohen] that many on the staff had come to me intimidated by Jeff's union activi- ties on the floor. He objected to this and stated that everyone had a right to their own opinions. I told him that I respected his opinion although I didn't agree and that we weren't impinging on his rights and beliefs but that it seemed that he had been infringing on others by telling them that it was their duty to join the union, and that when enough people complained to me then it became my con- cern. He then tried to start an argument regarding the union but I told him that this was an evaluation and not a union debate. Jeff asked if we could have a conference with the staff as he had no idea that people were having difficulty working with him. It was agreed that within the next week or two we would have one to discuss this issue. 2 2 Thereafter, on June 9, at the conclusion of a regularly scheduled staff meeting of R-2 personnel, Vogel indicat- ed Cohen had been told about reports that he had been with that given on the same subjects by Respondent's witnesses. Where this is so, I have, in general, credited Respondent's witnesses because, notwithstanding the interest of some of them in the outcome of this pro- ceeding, each and every one of them exhibited a high degree of candor and fairness in reporting about events here in issue and left me with a feeling of confidence about the honesty of their reports as I observed them on the stand. Nurse Cohen, on the other hand, struck me as tending to be prolix, quite opinionated, and strongly biased in his accounts of "facts" which he had reason to believe would have some bearing on the outcome of his case. I was not favorably impressed with his testimony overall and found myself unable to trust his recollection or nonrecollec- tion of incidents in which he played some part. 21 I have viewed this document as a reliable evidentiary source of per- tinent facts. Its content was affirmed as truthful in Vogel's testimony and the record nowhere contains as full an account of the dialogue between her and Cohen at the time as that appearing in that report. Furthermore, that report is in evidence as one of the joint exhibits and is referred to extensively in counsel for the General Counsel's post-heanng brief in sup- port of major parts of her position with respect to the alleged unfair labor practices. 22 Cohen, in his account of what Vogel told him about what the em- ployees had characterized as "intimidating" union activity on his part, testified that Vogel referred to the "kitchen" discussion earlier described, and to his "leafleting" activity. Vogel expressly denied, in her testimony, having said anything about Cohen's "leafleting" then or at any other time, and explained that by using the phrase "union activities on the floor" she was referring only to complaints she had received about Cohen's insistent or aggressive efforts to garner union support during working hours. Vogel impressed me overall as a truthful witness not given to improvisation. and I credit her testimony. (See also fn. 20, supra ) MAINE MEDICAL CENTER 711 712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "intimidating" employees and that some employees "did not want to work with him" and that he (Cohen) had asked her (Vogel) to "bring this up at a staff confer- ence." She then turned the floor over to Cohen. Cohen then said that the accusations on the matter had come as a "shock" to him and he asked "generally" if there was anyone there he had "intimidated" or "harassed." No one responded to his query. Thereupon, Gallant got "hot underneath the collar" (as he put it) and proceeded to ask each employee individually if Cohen "had ever in- timidated them." Everyone said "no," some with elabo- rations on their negative responses.23 Concluding Findings Accepting as truthful Vogel's testimony that she raised the matter of Cohen's union-supportive activities "on the floor" because employees had complained that they felt "intimidated" or "nervous" by Cohen's conduct of those activities, I find that Head Nurse Vogel invaded no sta- tutorily protected rights by her statements on the matter to Cohen. See and compare Hicks Ponder Co., 168 NLRB 806 (1967). I shall therefore recommend the dis- missal of paragraph 9(a) of the complaint. B. By Personnel Director Donald Mayer Paragraph 8(b) of the complaint alleges that Respon- dent, through Personnel Director Donald Mayer, "threatened" Cohen on or about July 9 "by telling Cohen that his employment status is hindered by his union activity." The evidence relating to this allegation is to be found in the uncontradicted testimony of Cohen describing a conversation he had with Mayer immediate- ly after he got his termination letter from Dr. Andrews. Cohen testified that he went to see Mayer about get- ting severance pay; that Mayer then made a number of phone calls to get information on the matter, after which he showed Cohen some pertinent provisions in the pub- lished personnel manual and told Cohen he was not eligi- ble for severance pay but would get pay for unused va- cation time. Then, according to Cohen, the following dialogue took place: Then he [Mayer] started talking about how many changes really were needed at Maine Medical Center. He said that he was new at the hospital, but had already started making some changes. He said, "Off the record, I wished you had worked with me instead of against me." He said that I could have been of help in making the neces- sary changes. He said that he hoped that I did not have any regrets in the future and that I was aware of what I was doing and that there was no one taking advantage of me. 23 An account of the June 9 meeting appears in the testimony of Cohen and LPN David Gallant (also a witness for General Counsel). To the extent their accounts differ, I credit Gallant's testimony, I observe, inter alia, that although Cohen's account attributes to Vogel a reference to "leafleting" in making her initial announcement that Cohen wanted to discuss the employees' complaints he had been told about. Gallant's does not do so, thus lending some corroboration to Vogel's testimony, supra, fn. 22. I replied by saying no. He acted surprised and asked if I would repeat that. He was walking around me. I repeated no again, and I explained, "No, I have no regrets," or something to that effect. He did not respond to that. I do not think we talked much more than that be- cause he got a phone call. Discussion and Conclusions General Counsel urges, on the above evidence, that an implied message was given by Mayer to Cohen "off the record" that Cohen had been fired for his union activity. I do not believe, however, that a finding to that effect is justified on the basis of the ambiguous statements Cohen attributed to Mayer in the context of the severance pay discussion, supra. I shall, therefore recommend the dis- missal of paragraph 8(b) of the complaint. V. THE ALLEGED DISCRIMINATORY ACTIONS A. By Head Nurse Vogel Paragraph 9(a) of the complaint and its litigation al- leges that, because of displeasure with Cohen's union ac- tivities, Head Nurse Vogel set Cohen up for removal from her unit and/or Respondent's employ by: (a) Giving Cohen a poor performance evaluation on or about April 20 and putting him on a 60-day "probation" under warning of transfer or removal; (b) removing him from the Audit Committee on April 28; (c) presenting new charges of unsatisfactory conduct about him in a "follow-up" evaluation dated May 21; and (d) filing a further unfavorable performance report about him on June 14 recommending, at the time, that he be trans- ferred or terminated. Respondent contends that, in truth, the sole reasons prompting Vogel's negative evaluations of Cohen and her recommended course of "corrective" action were the reasons as stated by her in the below-quoted reports2 4 and given to Cohen. Respondent further asserts that Vogel's preparation of a formal comprehensive appraisal on April 20 of Cohen's willingness and ability to meet the demands of the job he occupied represented her compliance with a requirement uniformly imposed by Respondent on all its hospital unit supervisors that such an appraisal be prepared during the first year of an em- ployee's tenure and annually thereafter. Respondent notes that this initial appraisal was prepared for Cohen at or near 10 months of his employ. 1. The relevant facts (a) The reasons for the poor evaluation as stated to Cohen; the sequence of the interim events 1. The first of the series of reports, dated April 19, is the first comprehensive supervisory appraisal of Cohen's performance. That report states: 24 All of Vogel's reports as below quoted are in evidence as joint ex- hibits. MAINE MEDICAL CENTER 713 Mr. Jeffrey Cohen has been employed at Maine Medical Center on R-2 since July of 1975. During the first six months of employment, the quantity of Jeffs work was below average, while the quality was usually good. Of greatest concern now is his lack of improvement, as he still does less than aver- age work for a person in his position and with his experience. Jeff requires much prodding, showing little effort to contribute, develop and/or carry out new ideas or methods. The speed with which he masters new routines or grasps explanations is unsatisfactory, particularly on a floor where there are many acute- ly ill patients dependent on his care. For example, a few months ago a patient had an order to adminis- ter two chemotherapeutic drugs via I.V. soluset at 9:00 a.m. Jeff, as a team leader and medication nurse, was reminded several times to start the IV. The first drug was administered at 11:00 AM and then discontinued. When questioned about the reason behind pulling the IV, he stated that he was unaware of the second drug. The IV was restarted and the second drug was administered at 3:00 P.M. after re-ordering it from the pharmacy. Jeff is barely able to handle a moderate patient assignment, let alone to do an effective job as a team leader or a charge nurse. Jeff lacks leadership skill, evidenced by his inabil- ity to [set] simple priorities. It is not uncommon to find IVs behind when he is team leader, or to find him giving his 9:00 AM medications at 11 AM or 12 Noon when he is assigned medications for the floor. On two occasions Jeff was asked soon after report in the morning to do a referral on a patient who was to be transferred to an ECF. Not only was he reminded, and the first part of the referral was completed for him, but by the time the patient was on the stretcher waiting to be transferred, he had still not completed the form and had delayed the patient while he completed it. He has developed an adequate grasp of essential orthopedic skills, but has great difficulty in imple- menting them. Although constant supervision is not required, regular and fairly detailed checking is, in order to prevent many of the afore-mentioned inci- dences from happening. In addition, Jeff is repeat- edly absent and late, having recently received a letter from Mrs. Hargitt, R.N. for poor attendance. In the past, he has been very critical of hospital policy, including the time schedule, yet he refuses to take part in making out the time or in solving problems constructively. While his appearance is neat and professional, his attitude has become increasingly hostile, being re- luctant to cooperate with the rest of the staff. His performance, in summation, is far from satisfactory. I recommend that he be put on a two month proba- tion in which time Mrs. B. Jewitt, R.N., A.H.N., and myself will work with Jeff to help him improve his organization, his ability to set priorities, his in- terest, absenteeism, and tardiness. I also recommend that Jeff be removed at least temporarily from the audit committee until his performance improves and he can become a more valuable resource member to the committee. If, after this period, his work has not significantly improved, I would recommend transfer to a less intense area or dismissal. Vogel discussed the content of that evaluation with Cohen on April 20 at a meeting she held with him for that purpose. The "conference report" she prepared of that discussion for the personnel files summarizes the dia- logue between her and Cohen as follows: 25 After having reviewed Jeffs evaluation with him, we were in total disagreement. Jeff stated that he constantly evaluated himself critically and felt that he gave excellent care and that patients always talked to him and thanked him for the excellent care. In regards to his inability to set priorities he stated that it depended on who set the priorities. He then got into a brief discussion in regards to this hospital and [said] that it was run by doctors and politicians. "Its all a political game with the patient being overlooked." I asked Jeff if perhaps he would like to work in another part of the hospital, if he was unhappy there, but he declined to reply. In regard to his tardiness he stated that he's always here 5 minutes before or 5 minutes after 7:00 A.M. I told him that 5 min[utes] after was tardy, and that one min[ute] after 7:00 A.M. was tardy. He felt that that was ridiculous. In regards to absenteeism he again felt that he wasn't out much, yet questioned as to the fact that he was sick very often he became very angry, and when told that absenteeism alone was reason enough for dismissal, he not only became more angry but was nearly hollering. He then proceeded to try to talk me out of the 2-month probation period. He felt that it would hurt his chances to apply for a new job for instance on P-6. He asked, how I felt he would do in P-6 psychiatry and I told him that I felt he would do poorly be- cause he lacked leadership skills and ability to set priorities and that P-6 was doing primary nursing care and these qualities were necessary in order to do an effective job. Jeff alluded to the fact that many hospital policies were ridiculous and that something had to be done about it. In his testimony about this conference Cohen reported on what he recalled saying to Vogel. He told her, inter alia: that he did not believe he merited the critical com- ments she had made about him; he had been improperly accused of inattentiveness to his medication-delivery tasks in the incident to which Vogel referred in her ap- praisal about the patient who had an order for two che- motherapeutic drugs; he regarded as objectionable her delivery of such report to his personnel file without giving him a prior verbal evaluation; and he deemed overly "harsh" her formal action in putting him "on pro- bation." Cohen further testified that in objecting to 25 Respondent's personnel procedures also called for submission and preparation by the unit supervisor of memorandums documenting the de- livery of evaluative reports to employees and the employees' reaction to their content. MAINE MEDICAL CENTER 713 714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Vogel's action in putting him on probation he told Vogel he did not know of any other employee on whom similar discipline had been imposed and that Vogel advised him such action had in fact been taken in other units where she worked. Thereupon, Cohen told her that he did not believe any employee in the R-2 unit should be put on probation. According to Cohen, Vogel agreed with his latter comment, but said she was making "an example" of Cohen. Vogel, in her testimony, denied making the quoted comment. I credit her testimony. See footnote 20, supra. Within the next 2 or 3 weeks following delivery of the above evaluation Vogel and Cohen exchanged certain re- marks worthy of noting here. On one occasion, while on patient rounds, Vogel observed Cohen delivering patient care and called him aside to tell him he seemed to be "improving" and that she was "pleased." On another oc- casion, she made a critical comment to Cohen. Cohen told Vogel then that if she ever wanted to criticize him he wanted a witness of his own to be present. 2 6 In addition, sometime within that same 2- or 3-week period, Vogel assigned Assistant Head Nurse Bonnie Jewitt to meet with Cohen and to give him advice about scheduling his work. Jewitt then met with Cohen, gave him instructions about how he could effectively organize and plan a day's scheduled assignments to meet time re- quirements and gave him a written plan to follow.2 7 On May 21, Vogel summoned Cohen to meet with her and Assistant Head Nurse Bonnie Jewitt (also an ad- mitted supervisor) and gave him an unfavorable "follow- up" evaluation which, though orally delivered to Cohen, was memorialized in a conference report Vogel prepared shortly after the meeting with Cohen and then sent to Cohen's personnel file. This "conference report" states: Mrs. Jewitt and I talked to Jeffrey regarding his performance during his probation period as one month had already gone by. Overall Jeff was told that we felt he had improved in areas such as absen- teeism and tardiness, but he still seemed to be having difficulty setting priorities and with general organization. He seemed to be able to take care of four or five patients on a quiet day but he did not seem flexible enough to adapt to a new plan or a new set of priorities. We suggested that although we did not want to deemphasize the fact that wash- ing feet and changing an entire bed, etc., were im- portant they were not a priority when pts. [patients] needed to be ambulated, bid. [blood] needed to be hung, I.V.s kept on time, etc. Bonnie spoke of an incident [involving] Mrs. Clote a pt. [patient] who had had a TH [Total Hip] operation and was also a very difficult patient to work with. Apparently Jeff 26 The underlying evidence is to be found in Vogel's uncontradicted testimony. 27 In his testimony, Cohen dated this meeting with Jewitt as having taken place after he had filed his grievance. However, in a document ac- companying his grievance which he wrote on May 29, he had mentioned that Jewitt had held the meeting with him between April 20 and May 21. General Counsel's brief so notes and states that he had apparently gotten his dates "mixed up" when testifying and that his May 29 statement was "likely to be more accurate" about the date of Jewitt's meeting with him. I so find. had left her in the chair for 3 hours, her legs not elevated (to prevent contractures) and had spoken to her in a "mean" manner. Jeff became very defen- sive; instead of looking critically at the incident, he tried to divert us by saying other people do it, and therefore trying to ease the blame on himself. We confronted him with the problem we face, being many patients request that he not take care of them. I asked Jeff if he thought this could be in part due to the fact that he was male or could much of it be his appearance, long hair, beard, etc. He again became hostile stating that nursing was discrimina- tory. I suggested that his appearance needed to be improved by trimming both his hair and beard, [but] he said nothing in response.* I told Jeff that many of the staff had come to me intimidated by Jeff's union activities on the floor. He objected to this and stated that everyone had a right to their own opin- ions. I told him that I respected his opinions. I told him that I respected his opinion although I didn't agree and that we weren't impinging on his rights and beliefs but that it seemed that he had been in- fringing on others by telling them that it was their duty to join the union, and that when enough people complained to me then it became my con- cern. He then tried to start an argument regarding the union but I told him that this was an evaluation and not a union debate. Jeff asked if we could have a conference with the staff as he had no idea that people were having dif- ficulty working with him. It was agreed that within the next week or two we would have one to discuss this issue." '*2 Some time after that meeting, Vogel asked Kathleen Kalaukis, one of Respondent's staff development instruc- tors, to provide instructive counseling to Cohen. Ac- cordingly, for a 2- to 3-day work period Kalaukis worked with Cohen on the floor while Cohen delivered patient care, at the end of which, she advised Vogel that Cohen simply did not feel he needed any instruction and that she (Kalaukis) did not see how she could be of any real help in the circumstances. 29 Meanwhile, on May 29, Cohen initiated a formal grievance with RN Agnes Flaherty, Respondent's direc- tor of nursing, seeking the withdrawal of Vogel's April 20 comprehensive assessment of his performance to that date, and Flaherty set up a meeting with Cohen for June 15-the details of which are reported in a later section of this Decision. In preparation for that meeting, Flaherty asked Vogel to provide her with a current assessment of Cohen. In response, Flaherty sent Vogel the following memo, dated June 14: 2" The portion of this report put between the stars is what I also quoted in sec. II of this Decision, supra, in discussing the 8(a)(1) allega- tions of the complaint. As has been noted, Vogel afforded Cohen an op- portunity to discuss the subjects he wished at a June 9 meeting with the staff. 29 Cohen testified that Kalaukis told him that she did not see why she had been called in as he (Cohen) did not seem to be doing anything wrong. MAINE MEDICAL CENTER 715 Jeffrey Cohen, R.N. was placed on a two-month probation April 19, 1976 because of unsatisfactory performance on R-2. He was informed at the time that unless there was significant and sustained im- provement, I would have no other alternative than to recommend transfer to another unit or termina- tion from M.M.C. [Maine Medical Center.] As his probation period is drawing to an end, I feel com- pelled to request that Jeffrey Cohen be removed from R-2 or discharged from the hospital for the following reasons. (The reasons for probation were put in writing to Mr. Cohen with a copy in his folder.) 1. His general performance of nursing func- tions has not improved significantly in the past two months. Attempts by both Mrs. B. Jewitt, R.N., A.H.N. and myself, and more recently K. Kalaukis, R.N., Staff Development instructor, have been met by both resistance and indiffer- ence. 2. His organization and ability to set priorities has failed to improve, evidenced by his constant overtime whether he has two or six patients. He continues to pass his medications more than 30 minutes late, i.e. 3 p.m. antibiotic being passed at 3:50 p.m. 3. His absenteeism has improved, but his tardi- ness has improved only slightly. 4. There has been no substantial change in either his attitude or his behavior. His observa- tions are adequate; however, he is unable to make decisions such as whether to call a doctor, with- out passing the problems along to someone else. I strive for and expect high standards of nursing care on R-2, which has been interpreted to all nursing staff. Jeff has not been cooperative in achieving these standards expected of a registered nruse. As there has not been any change in this perfor- mance of his attitude in working as a member of the nursing team on R-2, I recommend his termination from the staff. (b) The record evidence about Cohen's performance of his work tasks during the above rating period General Counsel's evidence on this matter was pre- sented principally through Cohen himself. General Coun- sel presented, as additional witness, LPN David Gallant to state what he had observed about Cohen's work. Re- spondent presented its case in rebuttal primarily through Vogel. In addition Respondent presented two other unit employees as its witnesses, RN McPhee and LPN Carol Gillespie, to report on their personal work experience in the conduct of their work relationships with Cohen. I here summarize the pertinent testimony of each of these witnesses. Cohen's Testimony Cohen testified in essence that, in truth, most if not all the critical comments about him which appeared in the formal appraisal Vogel asked him to read on April 20 came as a sudden "surprise" to him because: He had not previously been given any "serious" reprimands, criti- cisms, or counseling about any part of his work-apart from the single counseling session on absenteeism to which he had been summoned by M. S. Hargitt in early April-and this, he said, was a routine discussion in which he satisfied M. S. Hargitt that his sick leave days were for valid cause. He knew of no serious complaints having been leveled against him from any source charg- ing him with misperformance of his nursing tasks.3 0 He had never adopted or displayed a "hostile" or "noncoo- perative" attitude towards any unit employees. Cohen admitted, however, that he could not "get in and out" of patients' rooms as rapidly as "some nurses" could; that he was frequently unable to complete all of his nursing tasks within the normal schedule of hours and had to use overtime to do some tasks-such as re- cording clinical notes on patients' charts. But, he said he saw all of the nurses having similar problems-"some of us to a greater degree than others"; and he implied that this was due largely to the hospital's "understaffing poli- cies." Cohen also acknowledged that, in the course of super- vising the unit's day-to-day work activities, Vogel had, on occasion, made evident to him her observation of his work as follows: (a) Vogel had sometimes observed (and remarked) that he seemed to be "behind" in delivering medications. She had herself sometimes assisted him in finishing the medi- cation tasks,3 1 and other unit employees had helped do so on the average of once a week. (b) Vogel had discussed the hospital's concept of pri- orities with him two or three times and he had also heard others talk about this matter. He did not detail Vogel's side of these discussions. Describing his own views, however, Cohen reported, in pertinent part: I had talked about the hospital setting their prior- ities and I felt with many employees that priorities would conflict with particular nurses' priorities .... I could not understand why a nurse had to arrange certain priorities the way the hospital wanted them to. Why the understaffing should in- terfere with my priorities of giving good patient- care .... I never felt that it was a mistake to allow myself to be interrupted [while visiting a patient] by any need that I felt to do certain things and inter- rupt my administration of medications. (c) He recalled one occasion before April 20 on which Vogel had told him he had to perform a patient-treat- ment procedure properly. On that occasion, he testified, so He specifically denied that he had "botched up" the delivery of chemotherapeutic drugs as charged by Vogel in the April 20 evaluation: and he also claimed that Vogel's descriptions of the incidents involving delayed action on his part in filling out-patient referrals and in responding to patient Clote's calls for aid were both overstated in nature. His testi- mony about these matters indicates, however, that Vogel had talked with him about these incidents but had rejected his position about each. SL He characterized Vogel's comments at such times as having been made casually and "in passing." Asked how often Vogel may have made such comments, he replied, "about once every other month." MAINE MEDICAL CENTER 715 716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Vogel had come into a patient's room while he was changing a "folding catheter" on the patient. She ob- served that he had performed the procedure improperly and showed him how to do it. (d) He remembered being called to task one time about having left patients waiting on stretchers unduly long before filling out "referral" forms; but claimed that, in fact, no more than a 5-minute interval of "delay" was ac- tually involved. (e) On April 1, a patient assigned to the team led by Cohen that day was not given certain medication or- dered by the patient's doctor; and, under established hos- pital policy, this nursing "error" was made the subject of a formal "incident report," dated April 2.32 That report was signed by Cohen, Vogel, Nursing Supervisor Wini- fred Rose (Vogel's superior), and Dr. Lord (the com- plaining physician); and it memorialized the conduct of an investigation by Respondent to determine why the unit nursing staff had not implemented a medication order Dr. Lord had left at 12:01 p.m. for immediate de- livery of Depomedral to a patient of his who was suffer- ing from emphysema. 33 Cohen, who had testified on direct that he had never been involved in or charged with any nursing error which had been made the subject of a documented report, was confronted by Respondent with the above report on cross-examination. 34 He admitted, then, that he had been charged with the error because team leaders were routinely expected to make sure all the team's pa- tients had received prescribed medication and treatment. But, he added, he felt strongly that the "error" had been wrongfully charged to him because he was on lunch break at the time the medication order was entered; an- other nurse was covering for him at the time; and the order's entry was never called to his attention.3 5 (b) Testifying about the post-April period, Cohen re- ported, in here-relevant part, that notwithstanding his strongly held belief that Vogel had not treated him fairly in giving him an unfavorable comprehensive perfor- mance appraisal and in serving him with the "on-proba- 3 Under hospital protocol, any nursing "error" which might form the basis of a financial claim against the hospital at some future time had to be reported to higher management and made the subject of investigation and documentation in an "incident report" for hospital records. The hos- pital required that this report be signed by all members of the hospital staff having knowledge of the "error"; by the complaining physician or patient; and by the administrative official who joined in the investigation. The omission of delivery of prescribed medication was invariably consid- ered the kind of "error" calling for "incident report" procedures. According to RN Flaherty's testimony, a copy of this kind of "incident report" used to be made a part of the personnel file of the employee or employees involved in the "error"; but Respondent had discontinued that practice in recent years. 33 The record indicates that, fortunately, the patient had, by April 2, recovered from the attack of emphysema he had suffered the prior day. The incident report stated the medication order had been "overhoked", and that Dr. Lord had now "cancelled" it. 34 Cohen stated that he had "forgotten" about the report. 3s As appears from his further testimony on the matter during recross- examination, Cohen's superiors rejected his defensive explanation because (as Cohen admitted) medication orders newly prescribed during the course of the workday were normally placed by the unit clerk in the "in" box of the leader of the team assigned the care of the patient involved; the team leader was expected to check his box for such orders periodical- ly (usually every hour or so); and Cohen had apparently failed to look at his "in" box that day. tion" notice, he had held off filing a grievance on the matter because "I thought we could resolve things," and also because, about 2 or 3 weeks later, Vogel called him aside after she observed him delivering patient care to tell him he seemed to be "improving" and that she was "pleased." But, faced on May 21 with Vogel's delivery of an unfavorable "follow-up" evaluation 36 and what he regarded as further "unfair" charges of inattentive pa- tient-care delivery37 and of an "increasingly hostile atti- tude," he decided to advise higher management, through Respondent's grievance procedure, about Vogel's "unfair" treatment of him and to ask, inter alia, that the evaluation be withdrawn from his personnel file. Gallant's Testimony General Counsel called on LPN David Gallant (an R- 2 unit orthopedic technician) to give his observations about Cohen's work. Gallant replied that he regarded Cohen to be a "good" nurse; that, while working on Cohen's team, Cohen had been very "helpful" to him and had given him many useful pointers. He admitted, in response to questions by Respondent's counsel, that in discussing Cohen with him some unit employees had criticized Cohen for being "slow"; 3 8 that he had heard similar comments made at the grievance hearing with Flaherty by the unit employees Cohen had brought with him as "witnesses"; and that he had also heard one of these employees also say (at the grievance hearing) that Cohen did not seem to handle as heavy a workload as other unit employees. Gallant also admitted that during the union campaign he had engaged in many of the kind of visible union ac- tivities in which Cohen had engaged. 39 He acknowl- edged that Vogel and other of Respondent's officials always displayed a "friendly" attitude towards him in discussions of union matters; and that, during the union campaign and after, he had been continuously receiving tuition benefits from Respondent under its employee benefits program. Vogel's Testimony Called as Respondent's principal witness on rebuttal, Head Nurse Vogel testified, in essence, that her evalua- tion of Cohen, as prepared by her on and after April 20, was based solely on an appraisal of (a) quality and quan- a3 In voicing to Vogel and Jewitt his objections to that evaluation, Cohen reminded Vogel that she had told him, about a week or two before, that his work had been "improving." Vogel replied that she had since "changed her mind." 37 Asked at the hearing to give his version of the facts about Vogel's charge on May 21 that he had left Ms. Clote setting up in a chair for 3 hours when, due to her total-hip surgery, she could not move on her own, Cohen replied he had in fact ambulated Ms. Clote every half hour or so most of that day; she probably did not remember his having done so because she was "confused and disoriented," and had probably lodged the complaint against him because, on one single occasion, he had failed to respond promptly to her bell as he "was very busy" with other pa- tients. When he did answer that bell, he noted, he found Assistant Head Nurse Jewiti and "someone else" in the room helping Ms Clote and he therefore "turned around and walked out" to continue doing other of his nursing tasks. " Gallant reported that, in reply, he said, "Sio what, I'm slow too." 39 E.g., "leafletting, button earing, solicitation of fellow employees, and open expression of pro-union views" MAINE MEDICAL CENTER 717 tity of the nursing assignments he performed, and (b) his personal conduct towards herself and others in the han- dling of his work relationships. She testified further that she had regularly delivered "verbal criticism" to Cohen about the unsatisfactory aspects of his patient-care deliv- ery work over the preceding several months and had dis- cussed with him the "complaints" of patients and unit employees which came to her attention; 40 that her verbal "counselling" had not "helped" to bring about im- proved performance on Cohen's part;4 ' and that she de- cided, therefore, that if she put her criticisms about his deficiencies in writing, gave him, in effect, a formal warning to "shape up" or else face possibly more serious consequences, and also arranged to give him instructive aid, such courses of action might prod Cohen into doing his nursing tasks in accord with the standards she re- quired of all unit personnel. Vogel was asked, in the course of her testimony, to ex- plain each part of her evaluative statements and their fac- tual base. I summarize here the highlights of her testimo- nial explanations. I. As indicated by the comprehensive performance ap- praisal she prepared on April 20, she had no problem in recognizing Cohen's willingness and ability to deliver nursing care of a good professional quality. Her negative overall view of his competence or willingness to meet the required demands of his job went primarily to quanti- tative factors: He did not. as a regular matter, handle his fair share of the unit's day-to-day patient-care workload, even when that workload was "relatively light"; he was habitually late in dispensing medications to his patients; he often used overtime hours to complete such of his regular day-to-day nursing tasks as those involving the recording of clinical observations on his patients' charts. 42 Her use of the term "inability to set priorities" in her appraisal had reference to Cohen's failure or unwilling- 40 Vogel testified that she was unable to make certain judgments about employee performance of patient-care work when she made her daily pa- tient-care rounds At those times, also, she would receive complaints from patients concerning the delivery of nursing care and would evaluate what action, if any, those complaints required. Vogel fuirther testified that, as -utine matter, she relied on the nurses assigned to "charge-nurse" and "teamleader" duty to insure and check on the proper performance and completion by the staff of the unit's patient- care work and to report to her the "problems" or "complaints" on such matters as they arose primarily because, in the performance of all the work functions she was required to perform, she could not take time to engage in close "clinical" supervision and checking of the day-to-day work activity of unit employees She necessarily relied on such individ- uals (and especially those assigned as "charge nurses") to perform certain of the supervisory fnctions when she was absent from duty. When receiving a complaint charging an employee with an incident of inadequate or erroneous performance of nursing-care work or of personal misbehavior or misconduct. Vogel averred that she always took the com- plaint up with the employee insolved and obtained his or her version of the "facts" before deciding whether the charge had merit 41 Vogel used the word "counseling" in describing the nature of her periodic oral conversations or discussions with Cohen about his produc fivity, efficiency, and other swork-related matters. She averred that she "counseled" Cohen about his work at least twice a week; and testified she did "the same" with all the unit employees 42 Vogel also observed that Cohen was often late in arriving at work and had had more than a normal amount of absences. Her testimony indi- cates, however, that while his attendance record as of April 20 merited "counseling." she would not have served him with the "on probation" notice because of it ness to recognize and to conform to the hospital's con- cept of "priorities" in using his worktime-i.e., he regu- larly took time to do patient-care tasks which did not re- quire professional nursing skills (and which could there- fore be done by auxiliary members of the nursing staff) at the cost of worktime needed to dispense prescribed patient care which only a professional nurse was quali- fied to deliver and to which he was therefore expected to give priority. 43 She had, she averred, discussed the hospital's "prior- ities" with him a number of times over the meeting period; but his responses indicated that he did not ap- prove of the hospital's policies in this respect; and his performance demonstrated that he did not organize and schedule his worktime in conformity.44 2. Her critical remarks about his "difficulty" in "imple- menting . . . orthopedic skills" were based, in part, on complaints she had received frot patients45 and in part, on instances in which, on making rounds she herself ob- served that Cohen had failed to do something he should have done for the good of his patients. Asked by counsel to give "an example," she replied that she sometimes found that patients' intravenous tubes were "plugged up or behind"; that bedridden patients who had undergone "total hip" surgery would not be properly "positioned in bed"; and that the legs of such patients had not been ele- vated, as they should have been, by putting a pillow or box under them. One time, she said, she found that Cohen had used the wrong technique in putting a folding catheter on a patient, and she called him in to instruct him how this should be done. 3. Her written comments on Cohen's "hostile" atti- tude, Vogel explained, had reference to incidents report- ed to and sometimes observed by her in which Cohen used abrasive and discourteous language in calling on his team members to handle patient-care tasks; evidenced a resistant and negative attitude when asked to respond to a team member's request for coverage or relief for lunch breaks; and displayed resentment whenever criticized. She noted also that on occasions when she attempted to counsel him about adherence to hospital "priorities," he responded with hostile and critical comments about the 43 Asked by General Counsel to explicate what Vogel meant by Cohen's inability to set priorities, she observed as a "for instance" that: Cohen would much rather wash a patient's feet than to make sure that an IV. [intravenous] is on time That same person's I V might be 3 hours behind or ahead He spent too much time with a patient rather than coming back Many times one would have to say to a patient, I cannot do this right now but I will be back. " Vogel also reported that in trying to counsel him about his habitual late delivery of medications, she tried to find out what he was doing: Whether it was a problem of not knowing what the drug was; if he had to go back continuously and check the references to see what the medi- cations were used for; or whether he just simply had difficulty in setting and implementing "priorities " She testified that she really came to feel that her major problem was "prioritizing" him .4 She averred that some patients mostly "eiderl y" patients had voiced ohbijc;ilns to Cohen's nursing them on grounds that they simply "weren't sre" that he knew what he was doing. She could not recall the names of any such patients apart from those she had identified to Cohen on April 20 and May 21. MAINE MEDICAL CENTER 717 718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD hospital's policies; and that, after the April 20 evaluation, his "hostile" attitude towards her "increased." She also testified that Cohen put obstacles in the way of her ef- forts and those of others she had assigned to give him constructive criticism or instruction after April 20 by reacting with resentment or indifference. 4. Vogel acknowledged that she detected in Cohen many of the "deficiencies" she had formally described in her April 20 evaluative report, as far back as November 1975, but that, nonetheless, she continued to list him for regular assignment to the team leader position. She ac- knowledged further that although she "counseled" Cohen verbally about his deficiencies when the occasion arose (on an average of twice each week), she had not in so doing ever delivered a warning of forced transfer or discharge to him. She explained that Cohen was not an experienced nurse when he entered the hospital's employ; she did not believe in denying him (or any newly hired employee) the opportunity to meet "the challenge of his job"; and she had hoped he would "pro- gress" as he gained experience. 5. In light of certain implications of General Counsel's theory that Cohen's strong supportive union activities and the "intensified" state of the Union's campaign that spring were motivating or triggering factors in Vogel's preparation of the unfavorable evaluation of Cohen on April 20, Vogel was asked to concentrate on evidence of inadequate performance or unsatisfactory conduct by Cohen, if any, which came to her attention in a several- week period before April 20. Vogel testified, as a pre- liminary matter, that she was absent from duty due to ill- ness for approximately 6 weeks beginning in late Janu- ary. After her return to duty, in late February or early March, she found, she said, that Cohen continued to be the target of complaint from "all categories" of employ- ees in the unit. The nature of those complaints was such as to connote that Cohen was still handling less than an average share of the unit workload; he was still inclined to use his worktime without due regard to the required "priorities"; that he was still failing to do prescribed medication delivery tasks on time; and that he was not getting along well in the conduct of his day-to-day work relationships with other members of the nursing staff. In addition, and within the 2-month period immediate. ly preceding her preparation of her April 20 appraisal of Cohen, she received reports about two incidents of nurs- ing error or inattentiveness involving patients assigned to Cohen, both of which could have had potentially serious effects on those patients. The first such incident took place in late February or early March, and a report about it was made to Vogel by RN Ann McPhee. Ac- cording to McPhee's report, Cohen had botched up a doctor's order to administer two chemotherapeutic drugs intravenously to a patient. One of the two drugs was started 2 hours late and was discontinued prematurely. The second drug was given after the first one was re- sumed and its dispensation was delayed by several hours more than what was contemplated by the doctor's order. 4 6 4e This is the incident referred to by Vogel in the April 20 evaluation of Cohen. Vogel acknowledged that in discussing the matter with Cohen his version of the incident differed from McPhee's and contained a denial The second incident took place on April I-also a day when Vogel was not on duty-and it came to her atten- tion via the complaint of the patient's doctor. This is the incident which was documented in a formal "incident report" and which involved the nondelivery of pre- scribed Depomedral medication to a patient assigned to the team led by Cohen.4 7 6. Asked by General Counsel to explain why she had decided to put Cohen "on probation" with her delivery to him of the first formal comprehensive appraisal, and/ or why if he was so obviously deficient, she had not fired him outright, Vogel replied: A. I thought that, with an increased amount of help, he could possibly improve in these areas. I do not believe in firing a person without really giving him ample opportunity to improve. I found that verbal criticism did not help. I felt that, maybe by putting it in writing, maybe by putting him on a probationary period, he would improve. Q. Don't you have written warnings available? A. I believe we do. Q. And you have conference reports, also? A. Yes. Q. So you had other options, other than putting him on probation? A. Yes. Q. So wouldn't you say that, by putting someone on probation, is a more severe disciplinary measure than a written warning or a conference report? A. Yes. Q. Why is it you did not give him any written warnings or conference reports prior to the proba- tionary period? A. As I have already stated, I counseled him ver- bally many times. I chose to put him on probation. Q. Rather than have a graduated system of dis- ciplinarian measure, you did not give him a written warning to show how severe you felt the problem was. A. This type of probationary period I felt was a written warning, in effect, that if he did not shape up within two months then I would recommend this and this. Q. Well, I think you said that you would recom- mend discharge or transfer. It was not a gradual thing that you had in mind at the end of this proba- tionary period. A. I did not say it was at the end of the proba- tionary period. Vogel further averred that Cohen did not improve in any significant way following her April 20 disciplinary counseling and evaluation. He continued to be the target of any wrongdoing. However, she testified, she had McPhee investigate and document the "facts"; and she accepted her report about the matter in preference to Cohen's because she regarded McPhee to be more trust- worthy and reliable than Cohen. 4" As noted, Cohen in his testimony disclaimed responsibility for the nondelivery of the medication, and Vogel acknowledged he did so to her as well. Here, too, Vogel asked McPhee to investigate the "facts." McPhee did so and reported finding, contrary to Cohen's statements, that he had "signed off' the medication order on April 1,. thus indicating he knew it had been prescribed. MAINE MEDICAL CENTER 719 of complaints from patients and employees; 48 to be inat- tentive to pertinent patient-care details and late with medications; and to be increasingly hostile to her and to other members of the staff, thus creating tension and dis- cord. 49 She had, she stated, made some efforts after April 20 to provide Cohen with constructive help and guidance. She found it difficult to counsel him personally because he made it plain he resented her and, as noted, had expressly advised her he wanted a witness of his own choosing present if she wanted to criticize him. She had Assistant Head Nurse Jewitt talk to him about orga- nizing his work and, later, she asked Kathy Kalaukis to come in in the hope that an "outside" instructor could be of aid to him. But, she said, Kalaukis told her, after a day or so, that Cohen simply did not feel he needed any special instruction on his work and that she (Kalaukis) did not see how she could be of any real help to Cohen in the circumstances. The Testimony of Employees McPhee and Gillespie RN McPhee and LPN Carole Gillespie testified as Re- spondent's witnesses in affirmation of certain of the spe- cifics of Vogel's evaluative comments about Cohen. McPhee was a senior-staff nurse at the time of Cohen's employ and Gillespie was serving as an orthopedic tech- nician. As noted, both were still serving in the R-2 unit at the time of the hearing.50 Each of them gave undis- puted testimony describing in detail certain abrasive or hostile confrontations each had with Cohen on the job; and each also reported that they complained to Vogel about Cohen's behavior towards them. McPhee, who frequently occupied the position of "charge nurse" when Vogel was not on duty, averred that in observing Cohen's work from the "standpoint of being a charge nurse" she found that he was not as reli- able as other RNs; that he handled less of a workload than others did; that many patient complaints came through to her about Cohen; and that she reported all 48 Vogel mentioned patient Clote's complaint about being left in a chair for 3 hours as an example. Cohen was told of this complaint on and/or before the May 21 "follow-up" evaluation. 49 Vogel acknowledged that she did not document the dates on which she verbally "counseled" Cohen and could not now recall the specifics of undocumented incidents or complaints. She also testified that although she made certain "anecdotal notes" to which she referred in counseling Cohen or in evaluating him, she had not kept specific records about which employees or patients had reported what complaints to her or what precisely each report had covered. She was, however, able to re- member the names of three employees who had made adverse reports about Cohen to her-Ann McPhee, Carole Gillespie, and Karen Strat- tard. As will appear below, McPhee and Gillespie appeared as Respon- dent's witnesses herein. Strattard had left Respondent's employ sometime before the hearing. 50 McPhee had been promoted to the position of Assistant Head Nurse sometime after Cohen's discharge such complaints to Vogel. 51 McPhee further testified that she had tried to help Cohen and "to point things out to him" as she did for any staff person when she had time. But, she declared: I found that when you approached Jeff and offered him help that many times he would turn it down. It would be almost the attitude "I know what I'm doing, you do not have to help me." Gillespie testified, inter alia: I found Cohen very hostile. If you asked him to cover for you and you were going to lunch, which is the protocol on the floor, the answer was no and no reason why. He would not do things to help other staff mem- bers. There would be a lot of deliberate arguing in front of patients. It was just hostility and tactless. Gillespie also reported that she had brought to Vogel's attention a specific incident in which she was directly in- volved and in the course of which Cohen confronted her with a demand in somewhat offensive language. I here quote this part of her testimony: . . it is my job as an orthopedic technician to am- bulate the patients on the floor, but it is also my job as an L.P.N. to cover for people who are off the unit for various reasons in giving medication or just covering their patients, and so during that time I cannot be doing the ambulation also . .. I was getting patient prepared for the operating room which meant medicating the patient . . . When Jeff came into the nursing station, and he had a patient on the opposite side of the hallway who was perfectly safe in bed and had an order to get up in the chair sometime during that morning, he pro- ceeded to tell me to get my "ass" down to room 203 and get that patient up in bed-up onto the chair. I explained to him that my priority was to medicate the patient for the O.R. He said that he did not care what I was doing, to get my "ass" down there and do it. Gillespie also testified that Cohen worked at a slower pace than "most people"; that the charge nurses seemed to give him a smaller patient load than that given others; and that she had not found him helpful when, at times that he was team leader, she asked him for clinical infor- mation. Gillespie expressly affirmed certain comments s' McPhee asserted that, since about a year or so had elapsed from the date Cohen left the hospital's employ until this hearing, she did not have a clear recollection of all the complaints she got She did remember one instance. however, in which a knowledgeable patient had been "quite upset" because Cohen had been slow about medicating her. She recalled another instance where a patient had been left in a chair for an overlong period of time and had complained about it She also testified about re- porting to Vogel on the chemotherapeutic incident to which Vogel re- ferred in her written appraisal of Cohen. MAINE MEDICAL CENTER 719 720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Vogel had made about Cohen's inability to implement orthopedic procedures. She testified that she tried to help Cohen learn the correct way of positioning people and how to move them in and out of bed; and that even after she told Cohen how to do "proper" positioning, she sometimes found that he had done it incorrectly. She had also noted that he often got a "total-hip" patient up on the wrong side of the bed-a danger to the patient if he should slip towards the operated hip. Discussion and Concluding Findings In her post-hearing brief, counsel for the General Counsel summarizes as follows the theory on which she urges that I find Vogel's conduct towards Cohen on and after April 20 had a discriminatory root or object: The April 20 evaluation which is extraordinarily harsh in its content and recommendations, and un- supported by any [precedent formalized] history of Counseling or warnings, can be explained only by the fact that Vogel returned [from sick leave] in February to find Cohen actively campaigning for the Union. Vogel's harsher evaluation on May 21 and her memo to Flaherty [on June 14] recom- mending discharge occur [sic] after the initial evalu- ation had failed to stop the intensification of Cohen's union activity. In the context of the [Union] campaign, the discriminatory evaluation of the only active registered [pro-Union] nurse comes about a week after the second petition had been filed. No petition was ever filed for the registered nurses. The treatment of Cohen would certainly have discouraged interest among the nurses. Cohen's discharge took place at the height of the campaign, between the direction of the election and the actual election. For the reasons explicated below, I find that notwith- standing the presence of evidence in this record that Head Nurse Vogel had identified Cohen as a union sup- porter at dates here relevant and that she, herself, did not favor the Union's cause, the totality of the evidence before me falls short of establishing the necessary basis for my arrival at the contended-for conclusions. As will appear, I do not agree with General Counsel that the content and recommendations are fairly to be character- ized as "extraordinarily harsh" of Vogel's April 20 evalu- ation and her "follow-up" report and that they "can be explained only" by reference to Vogel's knowledge of Cohen's union activities and a hope or desire that the Union's organizational activities would not succeed. 1. To begin with, it is clear from the findings I have made above that the unfavorable views held by Respon- dent's officials and by Vogel were not expressed to em- ployees in any manner violative of the Act. Cohen's sup- portive union activities, while visible and of an aggres- sive character, were not different in kind than those of LPN Gallant--the individual who, according to Cohen, initially persuaded Cohen to become a union adherent. And, while Respondent may have had reason to regard the Union's installation as a bargaining representative of some categories of its employees as a serious possibility at dates here relevant, 52 it was plain to all concerned that few of Respondent's professionals had demonstrated any real interest in union representation. In sum, while the record establishes animus to the Union and the mounting of a strong effort by Respondent to persuade its employees against selecting it as a bargaining agent, it does not show that Respondent was prepared to coerce, bribe, or engage in retaliatory action against employees as part of its antiunion effort. Nonetheless, I have taken into account Respondent's open opposition and antipathy to the Union in evaluating the evidence before me in light of the General Counsel's contentions in support of the complaint and Respondent's defensive contentions as well. 2. 1 cannot fairly draw any inference adverse to Re- spondent from the fact that Vogel prepared the formal comprehensive appraisal of Cohen about a week after the Union's second petition had been filed, and that the sup- porting activities of union sponsors like Cohen were ac- cordingly "intensified." There are special considerations apart from those already stated which militate against such an inference. They are as follows: a. The record evidence before me affirmatively estab- lishes, and I find, that Vogel's undertaking to prepare that comprehensive evaluation of Cohen's performance in formal format represented an implementation on her part of a duty-historically imposed by Respondent on all its first-line supervisors-to submit such an evaluation in her or his unit of a newly hired employee at or near the completion of the first year of tenure and annually thereafter.5 3 Although Vogel prepared Cohen's evalua- tion (on or about April 20) 2 months before the end of Cohen's first anniversary of his initial hire as a hospital employee, her doing so, in lieu of waiting out the full- year period, was not unprecedented. A number of the initially prepared "standard" evaluation forms within the personnel files adduced in evidence as General Counsel's Exhibits 73, 74, and 76 (see fn. 53, supra) are dated I to 3 " The two representation petitions which had been filed with the Board by April 20 described, respectively, a unit of technicals (a unit which encompassed LN's like Gallant) and a unit of service and mainte- nance employees. (See upr, sec I) a I base findings set out in this paragraph on a synthesis of the unim- peached testimony of RN Agnes Flaherty (Respondent's director of all nursing personnel) concerniig operative personnel policies, and certain of the contents of the personnel files adduced i evidence as G.C Exh. 73 and 74. The latter I note, contains, as part of the personllnel history of former employees who were discharged by Respondent over the past several years preceding the events here in issue, copies of formal apprais- als of such employees filled out on "standard forms" (so referred to here- after). Those forms had been developed by Respondent's personnel offi- cials as a list of the qualities or personal attributes on which separate "ratings" should he given and the guidelines to be used (circled, if appro- priate) to express the rating judgment and the conclusionar recommen- dations about the personnel action, if any, to be taken in light of the entire evaluation--e.g -promote or give the employee a raise: hold the employee "on probation"; transfer him or her to another unit; or suspend or discharge him or her. The above files were put in the record together with copies of unfa- vorable performance appraisals Vogel had prepared for other unit em- ployees during the period in which Cohen was also on the staff (.C Exhs. 77 and 73(w)) for my consideration of whether Vogel's treatment of Cohen was or was not "harsher" than (a) that accorded to other em- ployees she had unfavorably rated, and/or (b) that which Respondent's officials viewed as appropriate as a matter of operative hospitalwide per- sonnel policy - MAINE MEDICAL CENTER 721 months before the end of the rated employees' first year of tenure. b. The concluding recommendations set out by Vogel in her evaluative report provide, in any event, a plausible reason for her preparation of it in the 10th month of his employ. Included in those recommendations is a notice to Cohen and to Vogel's superiors that, notwithstanding her judgment that Cohen had not, thus far, proved to be a satisfactory nurse for the R-2 unit, he would be re- tained in his job, albeit "on probation," to afford him an opportunity, for a 60-day period, to shape up his perfor- mance in the respects outlined to him by Vogel. 54 Vogel further stated that she and other supervisors would work with him to "help" him effectuate such shapeup. It was proved by subsequent events that this offer of help was extended in good faith. Thus, at Vogel's request, each of two supervisors respectively took on the task of giving Cohen "corrective" instruction-the one in mid-May, the other, in early June. That instruction was plainly of a type germane to Cohen's needs, as perceived and de- scribed by Vogel in her April 20 evaluation. 3. 1 address next the question posed by the contention of General Counsel that the substantive content of the April 20 evaluation and its recommendations was "ex- traordinarily harsh" and of a discriminatory nature. In this regard, General Counsel urges in essence, it may not reasonably be found that Vogel did, in truth, regard Cohen to be as "poor" an employee as that indicated by her evaluation and her conclusionary recommendations that he be put "on probation" under threat of forced re- moval or discharge and that, meanwhile, he be removed from the "Audit Committee." I do not agree. As a threshold matter it is obvious both from a reading of the content of Vogel's comments as delivered to Cohen on April 20 and from her testimony about the matter at the hearing that portions of her evaluation were favorable to Cohen.5 5 Vogel stated she had no problem with Cohen's ability to deliver nursing care of "good" professional quality; that he had acquired "knowledge" of orthopedic skills and that his "appear- ance" was "neat and professional." Her stated reasons for rating Cohen as an unsatisfactory R-2 unit nurse "in summation" rested on negative observations about s4 Cohen's representation that the "corrective" instruction offered him did not in fact cover anything he did not already know-even if true (a matter I need not and do not decide) has no bearing, in my view, to the determination of the issues going to Vogel's motivation or objective in issuing a "poor" evaluation of Cohen on or after April 20. Neither Cohen nor any other of General Counsel's witnesses I observed, provided evi- dence to show that Cohen sought corrective "help" from any source after April 20 The implications of Cohen's here-pertinent testimony are, rather, that while he presented himself to the supervisors Vogel had as- signed to "help" him, he did not really "need" that "help." As found below, Vogel's implicitly stated belief to the contrary was not without a rational base 5S It bears noting that the separately stated criteria on which Vogel "measured" or rated Cohen's performance were, on their face, clearly relevant ones. Each of them, I observe, appears in the standard perfor- mance appraisal forms referred to in fn. 53 of this Decision. Much of the language in which Vogel phrased her ratings of Cohen appears on those standard forms, as well. The only difference that I can perceive between the format used by Vogel in preparing this and other of her evaluative reports and that in the "standard form" is that Vogel used a narrative method of expressing her ratings rather than merely checking or circling boxes of comments set out in the standard forms Cohen's seeming inability or unwillingness-after more than 6 months on the job-to: (a) Organize and use his scheduled worktime in accord with the hospital's con- cept of "priorities" so as to handle a fair share of the unit's day-to-day patient-care workload; (b) to effect on a consistent basis the delivery of medications at times rea- sonably close to those prescribed by the patients' doc- tors; and (c) to develop and maintain the kind of harmo- nious interpersonal work relationships with other em- ployees of essence to the effective functioning of the "team" system of patient-care delivery. 5 6 The record amply demonstrates, I find, a rational and nondiscriminatory basis for Vogel's negative rating of Cohen on his demonstrated willingness or ability to meet the unquestionably important quantitative requirements of a nurse assigned to a busy unit. This is apparent not only from a review of the plausible and to some degree uncontradicted testimony of Vogel and of the unit em- ployees who worked with Cohen, which I credit, but it is evident as well from the testimony of Cohen himself. Cohen, as acknowledged in his testimony, had made it plain to Vogel that he disapproved of the hospital's con- cept of "priorities" and felt free to and would follow his own idea of "priorities" in delivering nursing care not- withstanding Vogel's instructions or counseling to the contrary. s7 Further, by his own admission, he was fre- quently "behind" in delivering medications, required help in the performance of this basic nursing task at least once a week; and he often regularly used overtime hours to complete this and other basic tasks such as filling in appropriate nursing notes on patients' charts.5 8 Cohen's testimony also indicates awareness that patients assigned to his care (or the patients' doctors) had complained to supervisory personnel about inattentiveness to or delays in fulfilling medication-delivery and treatment orders, and that these complaints had been discussed with him before delivery of the April 20 evaluation.5 9 1s While other factors such as absenteeism, tardiness, personal appear- ance, and demonstrated "interest" in mastering the particular skills of his job were rated (delivery of ratings on those factors was, as I note, re- quired), Vogel's testimony indicates that her stated conclusionary judg- ment of Cohen as an unsatisfactory unit nurse was based on the deficien- cies above outlined. $7 I am under the impression that Cohen may have been acting under a misconception of the reach of his Sec. 7 rights. It may be conceded, ar- guendo, that in voicing to Vogel and/or to others his objections to and criticisms of Respondent's "priority" requirements and quantitative work standards, Cohen's action in this respect was protected under Sec. 7 against disciplinary action. But it does not follow, and I would not find. that Sec. 7's umbrella extended, as well, to his unilateral undertaking to do his work in the fashion he believed appropriate, rather than that dic- tated by Respondent. 58 I have duly noted Cohen's testimony that some, though not all, of the other unit nurses had similar "problems" in handling their work tasks within the time limit of a scheduled 8-hour shift. Vogel, whose testimony on all the details of the matters here under consideration impressed me as sincere and fair, acknowledged that, on occasion, other nurses were in fact late in delivering medications and also used overtime hours to com- plete nursing-note charting tasks. But, she added, Cohen's "problems" in these respects were of a more frequent and recurrent character. There is no evidence in contradiction, and I find Vogel's testimony worthy of credit "S I have not overlooked the fact that Cohen denied the commission of any blameworthy conduct on his part in the incidents forming the subject of such complaints both to Vogel and to her superiors, and that at the hearing he declared, in truth, he had been guilty of no error of omission Continued MAINE MEDICAL CENTER 721 722 DECISIONS OF NATIONAl LABOR RELATIONS BOARD The further criticisms Vogel leveled at Cohen's con- duct in the handling of his interpersonal work relation- ships are also found to have a rational base. The unrebut- ted and hereby credited testimonial reports of RN McPhee and LPN Gillespie, as above summarized, show that, in fact: (a) Cohen had displayed what would fairly be viewed as a "hostile" and "non-cooperative" attitude towards each of them in the conduct of his interpersonal work relationships with them; (b) each of them had con- tinuously discussed the incidents evocative of such a characterization with Vogel; and (c) each had made known to Cohen that she had done so. 6 Furthermore, I find that Cohen's firm maintenance of a right to set and follow his own "priorities" in the pre-April 20 discus- sions Vogel held with him about this matter could fairly be viewed by Vogel as "hostile" and "non-cooperative" conduct. With respect to Vogel's "counseling" of Cohen about his deficiencies before April 20, Vogel's credible testimo- ny shows that she had, at periodic intervals, over the several months of Cohen's employ, delivered numerous verbal signals to him of dissatisfaction with his work via critical remarks and had, on occasion, engaged in longer verbal discussions with him about the hospital's "prior- ities" and Cohen's failure to perform his duties in accord. s or commission. But for purposes of this Decision I am not called upon to resolve the factual question raised by Cohen's testimony in this regard. What is of import here is that complaints along the lines set out above had in fact been made; that they involved patients assigned to Cohen's care; that Vogel-as her credible testimony indicates-asked RN McPhee, a senior nurse whom she regarded as trustworthy eind reliable-- to investigate internally available "facts" about the substance of those complaints and Cohen's role in the incidents giving rise to them; that the results of McPhee's investigation as she reported them to Vogel were un- favorable to Cohen and contradictory to those proffered by Cohen; and that each of the underlying incidents as reported to Vogel presented the potential of injury to the well-being of the patients involved Contrary to an argument made by General Counsel, I do not find that some indicia of unlawful discrimination can properly be inferred either from Vogel's request that McPhee (an employee opposed to the Union) investigate the facts underlying the above medication-tlelivery com- plaints, or from Vogel's reliance on McPhee's report on the investigation when she assessed the credibility of Cohen's position thai he had been erroneously accused of blameworthy conduct. In the first place, there is no direct evidence that Vogel was aware of McPhee's negative views about the Union until sometime in May. In the second, the weight of the credible evidence shows that Vogel had legitimate reasons to put more trust in McPhee than in Cohen and had so indicated by recurrently desig- nating her as the unit "charge nurse" to act in her (Vogel's stead) when Vogel was absent from the floor. I also observe that McPhee, as I heard her testimony, left me with a favorable impression of trustworthiness. eO See, particularly, Gillespie's unrebutted testimony that, with Cohen following her, she had, promptly after Cohen directed her to drop what she was doing and get her "ass" to another patient's rooom, gone to Vogel with a complaint about Cohen's attitude and that she left while Vogel was "talking to" Cohen about the incident. e1 Cohen's testimony I have earlier summarized acknowledges that Vogel had delivered verbal remarks to him of a critical nature from time to time before April 20 and that she had "discussed" the subject of "pri- orities" with him; but implies, however, that her verbal remarks did not come through to him as stern reprimands or "serious" indications that there was anything significantly wrong with his work performance. His representations in the latter regard may well be true. But they are of questionable relevance, if any, here. For the issues I am ere called upon to examine and resolve about the alleged discriminatory treatment of Cohen do not call for me to sit in judgment on the adequacy-from Cohen's (or General Counsel's) point of view-of Vogel's verbal efforts to direct the day-to-day work activity or work efforts of the employees she supervised so as to accomplish the results she wanted To be sure, the record does not show that Vogel had subjected Cohen to extensive "counseling" or "correc- tive instruction" sessions before April 20 of the type al- luded to by counsel for the General Counsel in her brief. Nor had she theretofore "documented" Cohen's person- nel file with written reports about the "problems" with his performance that she outlined in her comprehensive evaluative report. But I do not see how these facts help General Counsel's case, absent proof-here lacking-that Vogel used such techniques with respect to other em- ployees she supervised. Indeed, what affirmative evi- dence there is about Vogel's "style" of supervision shows that she confined her regulation of the day-to-day performance on personal behavior of the unit employees to the delivery of verbal criticisms of somewhat longer oral "counseling" of the kind she delivered to Cohen; and reserved, until such time as she prepared a formal comprehensive "performance appraisal," the delivery of extensive, in-depth "counseling" of the employees and its "documentation" for the personnel files. Vogel violated no policy or rule of Respondent in so doing. 6 2 4. General Counsel also claims that in preparing Cohen's appraisal; choosing to put him "on probation"; having him removed from the audit committee; and giving him formal warning that he risked a "ship-out" from his employ if he did not "shape-up" his perfor- mance in the 60-day "probationary" period, Vogel treat- ed him differently and more "harshly" than she did other "poor performing" employees and did so because he was a union activist. The relevant evidence, below summa- rized, shows to the contrary. In briefing this point, General Counsel has referred me to evidence showing that during the period in which Cohen was employed Vogel had occasion to prepare formal "performance appraisals" for two other members of her nursing staff-one of whom was employed in the capacity of a professional nurse, and the other, as a nurses aide. In each case, Vogel's appraisal was unfavor- able to the employee; and she concluded each appraisal with an implicit recommendation against the continued retention of each of the rated employees on the hospital's staff.6 3 I do not see how this evidence shows that Vogel 52 The unimpeached testimony of Flaherty, which I credit, shows that although Respondent held training sessions with its first-line supervisors about "techniques" of obtaining employee compliance with standards of performance or behavior, it did not obligate the supervisors to follow some particular "technique." In addition, while it advised its supervisors of disciplinary personnel actions "available" to them (such as discharge, suspension, forced transfer, warnings or reprimand, and "on probation" notices) it did not obligate them to use a progressive system of disci- plianry methods, but left each free to decide, on her or his own, the kind of discipline deemed suitable in particular circumstances. Flaherty's testimony also shows that, in the fall of 1975, Dr Andrews, then newly installed as president of Respondent, initiated a decentralized system of managerial control over unit supervisors under which head nurses and other first-line unit supervisors were granted full authority to initiate personnel actions and terminations of a disciplinary type without first clearing with the office of the director of nursing personnel, as had been the system before Dr. Andrews' arrival. Under this "new" manage- ment system, participation by higher-ranking supervisors or management officials in the disciplinary or other personnel actions affecting hospital employees could be obtained on request of the first-line supervisor and/ or on the filing of a grievance by the affected employee or employees. 63 The pertinent personnel evidence concerning Nurse J. S. shows that she was hired by the hospital as a newly graduated nurse in June 1975 Continued MAINE MEDICAL CENTER 723 either applied "harsher" standards in evaluating Cohen's performance, or chose a "harsher" form of discipline or reprimand in setting out as conclusionary comments about his continued retention in the unit that he be put "on probation" for a 60-day period-this, as I have found, with the intent of giving him a fair opportunity to demonstrate his willingness to do his work in the manner Vogel told him she wanted it done, and removal from the unit or from the hospital's employ only if he failed so to demonstrate. To be sure, Vogel also recommended, in her April 20 evaluation (and subsequently arranged), Cohen's tempo- rary removal from the nursing audit committee-a kind of "status" position involving no extra pay, and to which Cohen was appointed while Vogel was on extended sick leave. But in light of her views about the unsatisfactory nature of Cohen's quantitative performance and her unfa- vorable estimate of the "leadership" and "resource" ca- pabilities he had thus far developed and applied, this per- sonnel action does not appear to be unreasonable. Perfor- mance of the stated functions of the audit committee plainly called for the kind of "leadership" and "re- source" capabilities Vogel's appraisal indicated she did not believe Cohen had thus far developed to the degree necessary to make a valuable contribution to the hospi- tal's interests in establishing that committee.6 4 In these and then assigned to the R-2 unit. In the fall of 1975, Vogel prepared and submitted to . S. and her superiors a formal performance appraisal report which described J. S.'s quantitative performance, personal behav- ior, and attentiveness to her patient-care duties in highly unfavorable terms. (See G.C. Exh. 7 7(a).) Vogel concluded this report with the fol- lowing statement: To summarize, I feel that Jan Ellen's attitude and her general perfor- mance of her duties are very indifferent I question whether she is well suited for this type of work. Nurse J. S resigned from Respondent's employ soon after Vogel pre- pared the above evaluation, giving as the reason for her resignation the fact that she had suffered a back injury and was in poor health. With respect to Nurses Aide J. M., the pertinent personnel data (G.C. Exh. 73(w)) shows that she was newly hired by Respondent in August 1975 and was assigned to the R-2 unit. About 7 months later, M. ap- plied for a voluntary transfer to the hospital's child-care nursery. She gave as the reason for wishing to transfer that she found the patient-care handling in the R-2 unit was putting too much of a strain on her stomach muscles. In accord with practice, Vogel was asked to comment on . M.'s request for transfer. She wrote the following commentary on April 5: [J. M.] has been more than a problem since her employment. After more than 7 months of employment she has been unable to meet even the basic nursing skills. Her work has often been unacceptable, she needs lots of constant prodding, showing little initiative. She has been extremely undependable both in performance and attendance. In my opinion [J. M.] is not suited for the type of work that any area of the hospital would require. J. M. was fired on April 7. The letter of termination. signed by "Eliza- beth Hargitt, R.N, Assistant Director of Nursing for Personnel Counsel- ling," stated, inter alia, that J. M. had failed to keep certain medical ap- pointments which had been set up by the Respondent for her for the prior day; that she had not worked for over a month but had neglected to keep the hospital informed about her "progress" with respect to her health problem. The letter concluded: Because of your failure to comply with our policies and requests .. . we no longer consider you an employee at Maine Medical Center as of this date 4/7/76. 64 The audit committee, as noted had, as its objective "the improvement] of the quality of nursing care" throughout the hospital and called for evaluative judgments by the committee members of the professional nursing care given by the hospital's nurses through systemat- ic analysis of the clerical records made by the nurses on patients' charts. duties Vogel owed to her employer called for the ad- verse recommendation that she made about Cohen's con- tinued membership on the committee. 5. In briefing her "disparate-treatment" point, General Counsel also referred me to evidence of personnel action taken by some other unit supervisors-mainly during a several-year period preceding Dr. Andrews' advent as the hospital's executive officer-which tends to show the use by such supervisors of evaluative performance stan- dards, and of "counseling" and disciplinary procedures arguably more favorable to the job interests of employ- ees than those of Vogel. But I do not see how this evi- dence aids General Counsel's case. For it is the unim- peached and credible testimony of Respondent's officials that the personnel policies instituted by Dr. Andrews as part of a "decentralization-of-management" program ac- corded to each unit supervisor virtually unrestricted dis- cretion to set her own standards for purposes of planning and regulating the work activity of her unit and its em- ployee complement. (See fn. 62, supra.) In any event, such differences and inconsistencies as may be found be- tween the standards and modes of discipline used by Vogel and those used by other unit supervisors in regu- lating the work activity and conduct of employees each was respectively assigned to supervise would not give rise to an inference that Vogel's standards were unlaw- fully discriminatory ones. As has been found above, the record does not show that Vogel imposed a higher stan- dard of performance on Cohen than she imposed on other unit employees, or that she resorted to "harsher" discipline or other methods in seeking to enforce compli- ance with her standards. 6. I further find no substantial record warrant for re- jecting as pretextual or contrived the content of Vogel's May 21 and June 14 "follow-up" appraisals of Cohen or for otherwise inferring that she would not have invoked the disciplinary sanctions she did invoke against Cohen on June 14 were it not for Cohen's union activities. Vogel testified in affirmation of those appraisals. That testimony shows that, except for an improved attendance record, Cohen had neither cured nor made any signifi- cant efforts to cure the unsatisfactory aspects of his per- formance she had described to him on April 20 and that he had responded to her efforts to help him overcome his deficiencies with "hostility or indifference." Her testi- mony further indicates a reasonable factual basis for those negative evaluative comments. I credit it in toto. There is little in Cohen's testimony-and nothing in any other evidence presented by General Counsel-in contra- diction. Indeed, Cohen's here-relevant testimony, read as a whole, leaves me with the impression that he continued to do his day-to-day nursing work after April 20 in sub- stantially the same manner he had been doing it before that date either because he could not alter his work habits, or because he felt, as a matter of personal princi- ple, that a professional nurse in a hospital environment should not be held to quantitative measures of perfor- mance in delivering patient care and should be free to follow his or her own concept of "priorities." To be sure, Cohen did present himself for "corrective" instruction to Jewitt and to Kalaukis, the two supervisors who Vogel summoned to help Cohen during the course MAINE MEDICAL CENTER 723 - 724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of his 60-day "probationary" period. But his testimony indicates a negative view of any "need" for such instruc- tion. And I believe it plausible that he conveyed to Vogel an attitude of indifference to those efforts. Fur- ther, he did not testify in negation of Vogel's testimonial report that, when she tried to give him verbal "criti- cism" on his work or on-the-job behavior after April 20 during the course of her day-to-day supervision of the unit, he advised her, in effect, that he would take criti- cism from her only if a witness of his own choosing were present. A supervisor receiving such a response from an employee could fairly characterize the employ- ee's attitude towards her as "hostile." The disciplinary sanctions Vogel invoked against Cohen on June 14, which called for his immediate re- moval from the unit or from the hospital's employ, were the very sanctions she had warned Cohen on April 20 that she would invoke absent observable efforts on Cohen's part to do his unit nursing work in the manner she wanted it done with due regard to the quantitative needs of the unit, to the timeliness requirements in the delivery of medications, and to the adverse effect on "team" members jointly responsible for patient-care deliv- ery of Cohen's demonstration of a noncooperative and hostile attitude towards his fellow workers. As I have amply indicated the credible evidence before me supports Respondent's claim that the content of Vogel's formal comprehensive appraisal of April 20 and of her "follow-up" evaluation reports since that date represented an honest and measured supervisory judg- ment; that she violated no policy, practice, or rule of Re- spondent in putting Cohen "on probation" cn April 20 under warning that she would invoke "ship-out" action against him if he did not "shape-up" his performance in the probationary period; that she had not been less "harsh" in her treatment of other employees for whom she issued "poor performance" reports at dates here ma- terial; and that, although she did not favor the Union's cause, she did not, in expressing her opposing views to Cohen or to any other employee, intrude on any protect- ed Section 7 right. And while it may be arguable that by expressing to her superiors on June 14 a view firmly op- posed to Cohen's continued retention in the unit or in the hospital's employ, even though about a week re- mained before the expiration of the 60-day period, Vogel overreacted or "jumped the gun" because of some feel- ing of annoyance with Cohen's efforts, via the "griev- ance procedure" route, to have her branded an "unfair" or incompetent supervisor, this would not prove her con- duct on June 14 to be an unfair labor practice in all the circumstances of this case. To conclude, I am not persuaded on the evidence before me that General Counsel has successfully carried her burden of proving, by a fair preponderance of the credible evidence, the complaint's attribution to antiun- ion motives or objectives of Head Nurse Vogel's deliv- ery, on and after April 20, of negative evaluations of Cohen's competence or willingness to meet important re- quirements of his job as an R-2 unit nurse and of the corrective or disciplianry measures she thereafter initiat- ed. Accordingly, I shall recommend dismissal of the complaint's 8(a)(l) and (3) allegations as contained in paragraph 9(a) of the complaint. B. The Alleged Discrimination by RN Flaherty and Dr. Andrews 1. Basic facts Paragraphs 9(b) and (c) of the complaint respectively allege as violative of Section 8(a)(3) and (1) of the Act Respondent's suspension of Cohen's employ on or about June 17, "pending resolution of his grievance," and Re- spondent's final severance of Cohen's employ on or about July 8. As appears from the summary of Cohen's employment history in section II of this Decision, supra, the decision to suspend Cohen was made and announced by RN Fla- herty at step two of Respondent's internal grievance pro- cedure, and the decision to terminate him was made and announced by Dr. Andrews at the final step to that grievance procedure. Cohen had invoked that procedure on May 27 to present charges that Vogel's formally stated negative ratings of his performance did not, in truth, represent measured or fair supervisory judgment and that she had been "overly harsh" in putting him for- mally "on probation" without first having given him an oral evaluation and/or warning. The facts describing the particular circumstances in which RN Flaherty and Dr. Andrews respectively an- nounced the suspension and termination decision to Cohen and the reasons each gave him at the time bear brief recapitulation here. Unless otherwise stated, these facts are not of a disputed character. RN Flaherty conducted the first of the "grievance" hearings on June 15. At that hearing, she obtained Cohen's oral statement of his position, Vogel's statement of hers, and the observation on aspects of Cohen's work performance of the three individuals Cohen had brought to the meeting as his "witnesses." 6 5 She also received from Cohen his "remedial" requests-i.e., that Vogel's unfavorable evaluations of him be expunged from the personnel records; that Vogel give him a letter of apol- ogy; and that he be transferred to the position in the P-6 unit of the hospital for which he had applied the prior November and had been turned down. Thereafter, on June 17, RN Flaherty met privately with Cohen and sought to "settle" the grievance case by offering Cohen an opportunity to transfer to a nursing 65 Cohen's "witnesses" were LPN Gallant, LPN Nancy Tarcetti, and Development Instructor Kathy Kalaukis. It appears from a composite of mutually consistent testimony about the meeting given by Gallant, Cohen, and Flaherty, that Gallant, Tarcetti, and Kalaukis made certain favorable observations, in general, about Cohen, and described him as a "good" nurse. Gallant and Tarcetti both admitted to Flaherty, however, that Cohen was a "slow" worker in com- parison to others; and Tarcetti made an additional comment that Cohen's workload seemed to be lighter than that of other nurses and that she per- sonally "wondered" if Cohen had been "shown the ropes." Neither Tarcetti or Kalaukis were called as witnesses in the proceeding before me. MAINE MEDICAL CENTER 725 position in one of two other hospital units (R-4 and R-l) where she had found that RN vacancies existed.66 In response, Cohen advised Flaherty, inter alia, that he would not accept a transfer to any but the P-6 unit. He also told her that he did not want to prejudice his right to pursue his "grievance" to the final step by accepting Flaherty's transfer offers. At this point, Flaherty advised Cohen that she was rejecting his grievance over the evaluation; that she believed the "tension" between him and Vogel was affecting patient care; and that she was therefore suspending him from his duties as an R-2 unit nurse pending Cohen's pursuit of his grievance to final level of the grievance procedure. Flaherty further in- formed Cohen that if the grievance were resolved in his favor he would be reinstated to active duty with full backpay. Dr. Andrews conducted the final-step hearing on Cohen's grievance on July 1, by which time he had re- ceived from Flaherty a report on what had taken place at the preceding step of the grievance procedure and from Cohen a lengthy typewritten "brief' setting forth a chronology of pertinent events,6 7 his side of the story about the lack of any concrete factual base for the nega- tive comments and "examples" of poor performance which Vogel had set down in her formal evaluative report, and his argument about the "unfair" or "overly harsh" nature of Vogel's action in putting him "on pro- bation" without prior verbal warning or "serious" coun- seling on his alleged deficiencies. Cohen's brief also in- cluded his request that his "grievance" be satisfied by the deletion of Vogel's formal appraisal from his personnel records, the delivery to him of a letter of "apology" from Vogel, and his placement by Respondent in a nurs- ing position in the P-6 unit. In addition to the principals (Dr. Andrews and Cohen), Personnel Director Mayer was present at the hearing at Dr. Andrews' request and LPN Gallant was present at Cohen's request. 68 Dr. Andrews opened the meeting by thanking Cohen for his "helpful" brief. During the meeting's course, Cohen made it plain that he believed he was entitled to concrete evidence of unsatisfactory performance of his nursing functions and had not received it. Andrews as- I6 Each was an acute-care rather than specialty-care unit like R-2 or P-6. The nursing positions within them were not as demanding as those within the R-2 unit. Flaherty admitted that she would not have considered transferring Cohen to the P-6 unit since he had previously sought a transfer to that unit and had been turned down (after the head nurse in charge of it had interviewed him) for lack of experience and inadequate leadership and communication skills. 67 Cohen's chronology included a reference to his encounters with other employees in May concerning the Union, Vogel's communication to him on May 21, that employees had "complained" of his union solici- tation and/or support activity as being of an "intimidating" nature, and the fact that at a staff meeting held June 9, the employees were asked by Cohen and Gallant if Cohen had "intimidated" any of them, and that all of them had responded in the negative. I8 Union Business Agent Don Fairey and Union Attorney Ralph Tucker attempted to accompany Cohen to the hearing, but Andrews re- fused to allow them to attend. Dr. Andrews told them that the matter was an "internal one" which did not call for the presence of outside rep- resentatives. General Counsel does not contend that Dr. Andrews' refusal to have either or both of these two union agents come to the meeting was in any way violative of the Act sured him that he would conduct a personal "investiga- tion" of the matter before issuing his decision on the "grievance." Andrews asked a few pertinent questions of Cohen and Gallant. The latter spoke up in favor of Cohen, described him as a "good" nurse who had been helpful to him (Gallant). He admitted that certain of the unit employees had criticized Cohen as being a "slow" worker. He also summarized the occurrences at the June 9 R-2 unit staff meeting where Cohen and he had asked those present if any of them had felt "intimidated" or "pressured" by Cohen's union activities and had received negative responses. Andrews asked Cohen, inter alia, whether there was a "personality conflict" between him and Vogel; and Cohen responded he was aware of none-that he and Vogel were "able to relate very well on a one-to-one basis." The meeting concluded with An- drews' assurance that he would give Cohen his decision within the next few days after he had personally spoken with some of Cohen's fellow workers. During the week following the above meeting, Dr. Andrews conducted separate private interviews with two members of supervision-RN Flaherty and RN Vogel- and with two of Cohen's fellow workers in the R-2 unit-RN McPhee and LPN Susan Legere.69 He ad- vised each of the latter two that he was investigating Cohen's grievance and elicited from each of them what she knew about Cohen's work and his ability to get along with people. Their responses were, in general, un- favorable to Cohen. 70 On July 8, Dr. Andrews wrote to Cohen informing him that he (Andrews) had concluded that Cohen had been put "on probation" by Vogel only because of his "failure to perform assigned responsibilities in an appro- priate fashion" and that he (Andrews) "had no choice" at this point but to terminate Cohen's employ. Certain post-discharge events also bear mentioning again only because General Counsel-contrary to my view-urges that they are relevant to the alleged 8(a)(3) and (1) violations she here attributes to Respondent's of- ficials. Immediately after Cohen received Andrews' termina- tion letter he went to see Personnel Director Mayer about severance pay. Certain remarks were allegedly made by Mayer at that time which General Counsel claimed to have been of a coercive nature. I have reject- 6 An interview appointment had been set up by Dr. Andrews' secre- tary with a third employee, LPN Tarcetti, one of the members of the R- 2 unit nursing complement who had come to the first grievance meeting held by RN Flaherty to be a "witness" for Cohen Tarcetti did not show up for her appointment. 70 The evidence about what was told to Dr. Andrews during those in- terviews appears in testimony given by Dr Andrews, RN McPhee, and Head Nurse Vogel. It is mutually consistent. LPN Legere was not called as a witness, and the report of what she told Dr Andrews appears in his testimony alone. According to that report, which I credit, Legere told Dr. Andrews she felt that Cohen was "slow" in carrying out his duties and had difficulty in setting priorities; but that she got along with him so far as their personal work relationship was concerned. McPhee was criti- cal of Cohen's personal behavior and of his performance in general. During her interview with Dr. Andrews, Head Nurse Vogel reaffirmed her written comments about Cohen, and expanded on the efforts she had made to "help" Cohen after April 20 by calling on Jewitt and Kalaukis to give him "corrective" instruction and on Cohen's reaction thereto, as well as on his "hostile" behavior towards her (Vogel) personally. MAINE MEDICAL CENTER 725 726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ed General Counsel's claim in this respect for reaons ex- pressed in section III(A) of this Decision, supra. Within the next few days, a rumor was circulated around the hospital by certain of Respondent's supervi- sors that Cohen had been employed by the Union as a paid organizer prior to and perhaps during his employ as a hospital nurse. The "rumor" was communicated to Cohen by fellow employees and Cohen denied its truth. General Counsel claimed that a union financial report for fiscal 1975 forming that "rumor's" base (because it listed a "Jeffrey Cohen" as a paid union organizer) had been received by Dr. Andrews before Cohen was fired. I have found that claim unproved. (See fn. 19, supra.) On July 14, the unfair labor practice charges initiating this proceeding were filed. Within the next few days, Dr. Andrews respectively informed LPN Gallant and LPN Sandra Cohen (the al- leged discriminatee's wife), during informal conversa- tions with each, that he would like to have Cohen come to talk with him at some future date. In his conversation with Mrs. Cohen, Dr. Andrews referred to a day "some time after this Union business is over." Cohen did not, however, contact Andrews either personally or in writ- ing after the end of his employ with the hospital. Discussion and Concluding Findings General Counsel has briefed the alleged 8(a)(3) and (1) violations predicated on Cohen's suspension on June 17 and his termination on July 8 on two alternate theories. General Counsel's threshold theory presumes the al- leged unlawful root or object of Vogel's unfavorable performance appraisals of Cohen and of the personnel actions she initiated, and invokes the legal concept that any implementation by management agents of discrimina- tory disciplinary recommendations of lower echelon su- pervisors would, a fortiori, be discriminatory. For reasons obvious from a reading of the preceding section of my Decision, I would and do find lacking the requisite factu- al base for invocation of the stated legal concept. The alternate theory of General Counsel appears to be that RN Flaherty and Dr. Andrews could each have overruled Vogel's recommendations against Cohen's con- tinued retention in the unit and/or the hospital's employ at either step of the "grievance" procedure and would have done so were it not for Respondent's animus to the Union and Cohen's known or suspected identification with the Union's cause. General Counsel stresses in this respect, the admission of Dr. Andrews that he enter- tained intense "antipathy" for the Union; the evidence proving Respondent's knowledge of Cohen's union activ- ity (and, allegedly, also, its suspicion that Cohen was a union "plant"); and the "timing" of Cohen's suspension and termination in relation to the pendency of the Board election in the technical unit. Respondent maintains that Cohen's failure to heed and meet Vogel's requirements in performing his nursing work, his indifference to Vogel's efforts to provide him with "corrective" help during his post-April 20 "proba- tionary period," and his "hostile" behavior towards Vogel provided valid and compelling reasons for its offi- cials' managerial decisions to resolve Cohen's grievance case as they did. Respondent further asserts that its offi- cials would have acted no differently even if Cohen had never engaged in union activity, and that Flaherty's offer to Cohen, on June 17, of a "fresh start" as a nurse in other nursing units in the hospital effectively rebuts any notion that Respondent's officials used or sought to use their disciplinary authority to remove Cohen from Re- spondent's employ and thereby rid it of a union activist. I hold with Respondent on the issues thus raised-and this, for the reasons which follow. 1. General Counsel's "timing" of argument clearly has no merit. The Board's Decision and Direction of Election in Case -RC-14295 had not yet issued when Flaherty met with Cohen and offered him the option of transfer to other vacant nursing positions before advising him that she would sustain Vogel's position, rather than his, in ruling on his "grievance." The 60-day probationary period on which Cohen had been placed by Vogel on April 20 had, by that date, almost run out and Cohen had made it very plain to Respondent that he wanted no employment relationship with it except on terms that he had set-i.e., a management judgment that his supervi- sor's evaluation was of an unfair or untruthful character; a management edict that his supervisor deliver a letter of "apology" to him; and management's placement of him in the specific job he designated as that in which he wanted to continue his hospital employ. The evidence I credit-all of which has been set out above-clearly establishes, and I find, that no unlawful taint could be imputed to any action of Respondent's management which resulted in sanctioning the "fairness" and integrity of Vogel's evaluation of Cohen and in im- plementing Vogel's request, accordingly, that Cohen be removed from her unit, even at the cost of firing him. Respondent's expression of a willingness to keep Cohen on the hospital staff in a position where Vogel would not have any responsibility for supervising him met dual ob- jectives. It accorded Vogel the deference management wanted-for valid reasons-to accord her; and, while it might have denied to Cohen the deference to his position which he may have believed he was, in truth, entitled to get, it obviously also indicated that Respondent was not bent on getting rid of him simply because he was identi- fied as a union adherent or supporter or because he had voiced objections (with which they disagreed) to a su- pervisory act affecting his job interests. Although the nursing positions Flaherty offered to Cohen on June 17 were located in "general-care" hospital units-as distin- guished from "specialty-care" units like R-2 or P-6-it is undisputed that they carried the same basic rate of pay, equivalent fringe benefits, and the same opportunities for advancement as the "specialty-care" nursing posts.7 ' 2. Other evidence to which counsel for the General Counsel has referred me does not show, as her brief sug- gests, that Flaherty or any other management agent had ever compelled a first-line supervisor to "tolerate" an 7 Both were physically located in the same hospital building as the R- 2 unit, though on different floors. Cohen admitted at the hearing that he did not regard the nursing positions in those units to be good ones to which to transfer because he had heard talk from others that they "didn't enjoy working there." He further admitted that he himself had never vis- ited either of these two units. MAINE MEDICAL CENTER 727 employee who, as was the case with Cohen, had gotten from the supervisor an unfavorable formal evaluation after a substantial time on the job and had been told, as well, that his removal from that job was being recom- mended. Indeed, without belaboring the point, I observe, inter alia, that my careful review of all the personnel documents to which General Counsel's brief referred me in tendering a "disparate treatment" agrument (i.e., G.C. Exhs. 73, 74, and 76) fails to reveal any such case. All that appears to be of any relevance here shows that but a few months prior to Cohen's presentation of his "griev- ance" Respondent had offered reassignment on a 2- month "probation" to a nurse (identified as "K. L.") who had received from her supervisor a highly unfavorable formal performance appraisal for the initial 10 months of her employ; the nurse had accepted the reassignment offer, was then put through a "corrective instruction" course given by a trained development instructor; and, at the date of this hearing, was still in Respondent's employ at the reassigned position. But this evidence, it seems to me, serves to rebut, rather than strengthen General Counsel's case. 3. It is true that Dr. Andrews did not renew Flaherty's offer of other nursing posts to Cohen when he decided to reject Cohen's grievance and advised him he had "no choice" but to terminate him. But I would not, on the record in this case, infer from his failure to renew that offer a discriminatory motive or intent. The credible evi- dence shows that Andrews knew what Cohen's response to Flaherty's offer had been and he could plausibly have concluded from all that Cohen had told him, as well, that Cohen had no interest in maintaining a job on the hospital staff other than on the terms set out in the "re- medial" requests accompanying his grievance. The fact that Dr. Andrews was antipathetic to the Union and had sponsored the conduct of an intense campaign to dis- suade its employees from selecting it does not, it seems to me, suffice to warrant drawing the conclusion that Andrews would have acted any differently in handling and disposing of Cohen's "grievance" case if Cohen had not engaged in any union activity at all. The evidence about Respondent's conduct of its antiunion campaign, though arguably restrainful, provides no real indicia that it was prepared to single out union supporters for dis- criminatory treatment. The Union had been on the scene for almost 9 months at the time Cohen was terminated; and Cohen's visible union activity was not so outstand- ingly of a more prominently or more aggressive charac- ter than that of other visible union sponsors or activ- ists.72 No employee of the 2,500 employees at the hospi- tal other than Cohen provided any evidence before me which would suggest that Respondent had ever made a statement about engagement in union activity carrying coercive implications or promises of benefit to any em- "7 It bears noting here that the names of approximately 100 employees were published in written documents listing the members of the Union's inplant organizing committee; and that there were approximately 60 em- ployees who, like Cohen, engaged in such visible union activity as leaflet- ing at dates here material, and a large number of others, as well, who wore union buttons openly. ployee. And none claimed that Respondent displayed a hostile attitude to Cohen when its officials met with him and his "witnesses" to give him the audience of his "grievance" which had been promised by Respondent's published grant of "grievance procedure" rights to all its employees. Although certain statements made to or about Cohen after his discharge taken together with Respondent's "union animus" may arguably render suspect the facial "fairness" which Andrews.displayed to Cohen in han- dling his grievance, they do not suffice in my view to support an inference that Andrews would have "investi- gated," reviewed, or disposed of Cohen's "grievance" differently but for Cohen's known or suspected involve- ment with the Union. In sum, the action taken by management agents may also be explainable on some other and a legitimate basis. It seems to me that to justify an inference of unlawful motivation the evidence of union animus would have to be stronger than is shown by the record in this case. Recapitulation It follows from all the foregoing that I would and do conclude that General Counsel has not carried the burden of proving that, as alleged in paragraphs 9(a), (b), and (c) of the complaint, Respondent engaged in conduct violative of Section 8(a)(3) and (1) of the Act by issuing a "poor performance" evaluation to or about Cohen on or after April 20, by putting him "on probation" on April 20, by removing him from the audit committee on April 28, by suspending him on June 17 pending "final" resolution of his grievance, and by terminating him on July 8. Accordingly, I shall recommend the dismissal of all these allegations. Having previously found that General Counsel has also failed to sustain the independent 8(aXl) allegations of the complaint, I shall recommend dismissal of the complaint in its entirety. CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent has not, as alleged in the complaint, en- gaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. Upon the foregoing findings of fact, conclusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recom- mended: ORDER 73 The complaint in this proceeding is hereby dismissed. "3 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. MAINE MEDICAL CENTER 727