Niagara Falls Memorial Medical Center, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Niagara Falls Memorial Medical Center, Inc. and Buffalo & Western New York Hospital & Nursing Home Council, AFL-CIO. Cases 3-CA-6814 and 3- CA 6933 May 25, 1978 DECISION AND ORDER BY MEMBERS PENELLO. MuRPHY. AND TRUESDAI. On October 6, 1977, Administrative Law Judge Al- mira A. Stevenson issued the attached Decision in this proceeding. Thereafter, the General Counsel, the Charging Party, and the Respondent filed exceptions and supporting briefs. 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, findings,' and conclusions 2 of the Administrative Law Judge. to modify her remedy,3 and to adopt her recommended Order, as modified herein. The Administrative Law Judge concluded, inter 'lThe General C('unsel. the Charging Party and the Respondent haoe excepted to certain credibility findings made by the Administrative ILaw Judge. It is the Board's established policy not to overrule an Administra- tive Law Judge's resolutions with respect to credibility unless the clear pre- ponderance of all of the relevant evidence convinces us that the resolutions are incorrect Standard Dry uall Products. Inc. 91 NLRB 544 1950), enfd 188 F.2d 362 (('A. 3 1951I). We have carelully examined the record and find no basis for reversing her findings. In sec. ll (C, ,of her Decision, the Administrative Iaw Judge inadver- tently states that employee Lee became ill at work on January 16. 1977. rather than January 17, 1977. 2 Respondent has excepted to the Administrative Law Judge's conclusion that it violated Sec. 8(a)( 1 of the Act by interrogating and threatening Stephen Ward in July 1976 Respondent argues that neither the charge dal- ed November 5, 1976, nor the complaint. dated February 17. 1977, alleged that these incidents were unlawful and, therefore, any finding based thereon is barred under Sec. IO(b) of the Act. Respondent further argues that these incidents were not fully litigated The original charge in this proceeding alleged, inter alia, that by "the above and other acts," Respondent has inter- fered with. restrained, and coerced employees in the exercise of the rights guaranteed in Sec 7 of the Act. We have held that it is not necessary to allege each unfair labor practice to be litigated. See Benner Glaus (Co.. 209 NLRB 686. 687 (1974). FTS Corp (Division of Hilco), 184 NLRB 787, 789 (1970). We further note that the interrogation of, and the threat to, Ward in July 1976 were related to similar unlawful threats made to employees herein, including Ward. Furthermore, although counsel for the General Counsel indicated at the hearing that she was "not contending that these conversa- tions are 8(a)(1), but merely background. because they are 10(b)," Respon- dent obviously did not rely on the disclaimer by the counsel for the General Counsel. as it cross-examined Ward about the incidents and the matter was fully litigated. The Administrative Law Judge inadvertently specified interest to be paid at 7 percent. Pursuant to our decision in Florida Steel (orporation, 211 NLRB 651 (1977). interest will be calculated according to the "adjusted prime rate" used by the U1.S. Internal Revenue Service for interest on tax payments. See. generally. Isis Plumbing & Heating Co., 138 NLRH 716 (1962). alia, that Respondent did not violate Section 8(a)(3) and (I) of the Act by reprimanding and suspending employees Chester Clark and Stephen Ward. We dis- agree with these findings for the reasons set forth below. Respondent operates a hospital in Niagara Falls, New York, and has about 1000 employees. The Union began an organizational campaign in Decem- ber 1975. The Union won a Board-conducted elec- tion on September 16. 1976, and was subsequently certified as the exclusive representative of a unit of all full-time and part-time service and maintenance employees. Clark and Ward were among the most active union supporters both during and after the election campaign. They attended union meetings, distributed literature, and each of them secured sig- natures on about 100 authorization cards on behalf of the Union. Clark and Ward were designated as the Union's observers at the election, and subsequently served as shop stewards and members of the Union's negotiating team. I. Clark was hired as a carpenter in the mainte- nance department, in November 1975, by vice presi- dent of plant services, William Irr. On December 26, 1975, Clark received a satisfactory rating in all as- pects of his work from his immediate supervisor, di- rector of maintenance, Leonard LaFrenere. On May 7, 1976, LaFrenere gave Clark a copy of a "verbal" reprimand for driving his truck on the hospital's lawn. On October 1. 1976, 2 weeks after the Union's victory in the election, Irr gave Clark a copy of an undated written notice of reprimand for alleged dis- regard of hospital property and sloppy workmanship concerning eight jobs performed between March and late September 1976. A copy of this reprimand was placed in his file on October 12, 1976. On November 4, 1976, Clark was given a typed copy of a notice of reprimand, dated November 3, 1976, for "unsatisfac- tory workmanship, creating a safety hazard. etc.," listing five additional complaints concerning work done between June and late October 1976, and he was suspended for 5 working days. On November 12, 1976, LaFrenere gave Clark his annual performance review, wherein he was rated as "marginal" because he had sloppy work habits and created safety hazards. Clark was therefore denied his "l-year 10 cents-an-hour wage increase." On Jan- uary 4, 1977, Clark received another reprimand from LaFrenere because he failed to clean up after a job, and he was suspended for 3 days. The Administrative Law Judge dismissed the com- plaint allegations that Clark was unlawfully repri- manded and suspended because of his union activi- ties on the grounds, inter alia, that there was no evidence of union animus by Irr and LaFrenere; 236 NLRB No. 41 342 NIAGARA FALLS MEMORIAL MEDIC AL CENTER Clark was "guilty" of the misconduct with which he was charged; there was no basis to find that Respon- dent departed from established disciplinary proce- dure; and the timing of Respondent's conduct was not a critical factor. It is clear, however, that Respondent's Supervisors Irr and LaFrenere knew of Clark's union activity in July 1976. It is also clear from the entire record that at times material herein Respondent, through various officials, demonstrated its union animus by certain actions against the unit employees because of their union activity, and we have adopted the Administra- tive Law Judge's finding that Respondent has vio- lated the Act by such conduct. Thus, Director of Food Services Dominic Bianca unlawfully interro- gated employee Stephen Ward in July 1976 and em- ployees Carol Giarano and Mary Battaglia in Febru- ary 1977, and unlawfully threatened Ward the day after the election. Additionally, Respondent, through Bianca, unilaterally changed the kitchen employees' working conditions in February 1977 by not permit- ting any more personal telephone calls or the drink- ing of beverages in the kitchen, and by restricting employees to the kitchen, except when they were on their work breaks, which could be taken only in the cafeteria. Furthermore, Respondent, on two occa- sions, denied employee Cheryl Cody's request for union representation at investigatory interviews which she reasonably believed would result in disci- plinary action against her. Respondent also violated the Act by issuing reprimands to Helen Lee. like Clark a shop steward and a member of the union negotiating committee, to discourage her union activ- ity. Furthermore, Respondent conceded that other maintenance employees who were working with Clark on several of the jobs for which he was repri- manded were not reprimanded. For example, as found by the Administrative Law Judge, in March Clark "and other maintenance employees were doing construction work . . . [and] they used an antique desk as a work bench . . ." and "they failed to pro- tect the rug from debris." In June, Clark and "others failed to use drop cloths to keep the area free from debris .... " In September, Clark and another em- ployee, Tolfa, left a job area without cleaning up. Clark was not in charge of any project for which he was reprimanded. Yet Clark was the only employee shown to have received reprimands for these pro- jects, despite Respondent's apparent dissatisfaction with its maintenance employees generally. Thus the Administrative Law Judge found that LaFrenere "rode hard" on the maintenance employees every day, he complained "all the time about every job." and he "complained [daily] to everyhody . . . about sloppy workmanship, or failure to clean up." Fur- thermore, although Clark was allegedly "verbally" reprimanded on several occasions beginning in March 1976, prior to October 1., 1976, Clark was aware of only the reprimand he was given in May. Additionally, Respondent had a policy which re- quired that all disciplinary actions, including verbal reprimands, be reduced to writing and placed in the emplosee's personnel record at the time they occur. Respondent did not follow this policy with regard to Clark. and indeed, as noted above, the notice of rep- rimand to Clark dated October 1, 1976, was not placed in his personnel file until October 12, 1976, and there is no explanation by Respondent as to why this was not done in accordance with its policy. Finally, contrary to the Administrative Law Judge. we find it significant that the timing of Respondent's action in resurrecting old complaints, some of which were undated, and documenting new ones concern- ing Clark. was within a short time after the Union's victory and Clark's designation as a shop steward and a member of the Union's negotiating committee. When coupled with its actions against Lee and Ward, also shop stewards and members of the negotiating committee, it is clear that Respondent, soon after the election, commenced on a course of conduct de- signed to harass and intimidate the employees who were the most active in the union campaign and who would continue to be called upon as leaders in nego- tiations. Thus, even assuming that some of the complaints against ('lark may have been justified, it is well es- tablished that action taken against employees by their employer which is motivated in whole or in part by their union activities violates Section 8(a)(3) of the Act, and the mere existence of valid grounds for dis- cipline is no defense to a charge that such action is unlawful. 4 In light of the entire record, especially the timing of Respondent's actions, the disparate treat- ment of Clark. Respondent's departure from its poli- cy with respect to recording reprimands. and the other unfair labor practices committed against other active union adherents, we find that by issuing the reprimands to Clark and suspending him. Respon- dent discriminated against him because of his union activity. Accordingly. we find that by such conduct it violated Section 8(a)(3) and (1) of the Act. We fur- ther find that, inasmuch as Clark was denied his "1- year 10 cents-an-hour wage increase" because of an annual review based on unlawfully issued repri- mands and suspensions. Respondent thereby further violated Section 8(a)(3) and (I) of the Act. 2. Ward was emplosed as an electrician in the 343 4 ( .... .. a, ( .a, h ( ., I/, 2'<( N I RB 874. 88, I 1 It7 DECISIONS OF NATIONAL LABOR RELATIONS BOARD maintenance department for 6 years under the super- vision of Irr and LaFrenere. He had a good work record and received no reprimands or warnings until February 8, 1977, at which time he was suspended, assertedly for taking two 3-cent packages of jelly from the cafeteria without paying for them. In April 1976, Ward began actively to solicit support for the Union and, as noted above, served as an election observer, steward, and chief of the Union's negotiat- ing committee. Respondent learned of his union ac- tivity as early as July 1976, and at that time, Director of Food Services Dominic Bianca told Ward that "things were going to change" at the hospital if the Union got in, and that Ward would be "a fool" to vote for the Union. On September 17, 1976, Bianca remarked that Ward thought he was a "big hero" because the Union won the election, but that Ward "should wait 6 months and see if he would still be the hero he thought he was." On February 1, 1977, Bian- ca observed two kitchen employees talking to Ward, and instructed them not to talk to Ward while he was in the kitchen on assignment.5 On February 8, 1977, Bianca and Irr accused Ward of taking two packages of jelly from the cafete- ria without paying for them on that date. Ward re- sponded by asking if Respondent could prove that accusation. Bianca told Ward he saw him do it. Irr then suspended Ward, pending discharge. After meeting with the Union over this matter, Respondent suspended Ward for 3-l2 days. The Administrative Law Judge concluded that Ward in fact took the jelly without paying for it and that therefore he was sus- pended for good cause. We do not agree. It is clear from the entire record that Respondent had knowledge of Ward's union activity and its ac- tions with respect to Ward were part of the pattern of harassment directed at the union stewards and the members of the negotiating team. Thus, as we have noted above, Ward was subjected to unlawful inter- ference by Bianca both before and after the election, and Clark and Lee were given reprimands and sus- pensions because of their union activity. Further- more, although the Administrative Law Judge found that there was no indication that stealing by employ- ees was tolerated or that Ward was treated different- ly from any other employee, the record shows that LaFrenere admitted that occasionally he gave hospi- tal property of small value to employees. Additional- ly, it is clear that Respondent, although aware of prior occasions when Ward took jelly without paying for it, did not consider the matter to be of grave im- portance. Thus, LaFrenere admitted that he had pre- viously been informed that Ward had been taking jelly without paying for it for "quite some time" be- fore he decided to do anything about the matter. He further explained that he did not think it sufficiently important to bring to Respondent's attention until the incident on February 8 because he saw "a lot of things" around the hospital which he did not report. In these circumstances, we conclude that Respon- dent merely seized upon the February 8 incident as a pretext for suspending Ward, and that such conduct clearly was part and parcel of Respondent's cam- paign against its employees in order to discourage their union activity. Accordingly, we find that Re- spondent by suspending Ward violated Section 8(a)(3) and (1) of the Act. 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, as modified below, and hereby orders that the Respondent, Niag- ara Falls Memorial Medical Center, Inc., Niagara Falls, New York, its officers, agents, successors, and assigns, shall take the action set forth in the said rec- ommended Order, as so modified: 1. Substitute the following for paragraph l(c): "(c) In any other manner interfering with, coercing, or restraining employees in the exercise of rights guar- anteed them in Section 7 of the National Labor Rela- tions Act, as amended." 2. Substitute the following for paragraph 2(a): "(a) Remove from its personnel files and records all references to the reprimands issued to Helen Lee on January 3 and 19, 1977: the reprimands issued to Cheryl Cody on February 10 and May 1, 1977; the reprimands and suspension issued to Chester Clark between October 1, 1976, and January 4, 1977; and the suspension of Stephen Ward." 3. Add the following as paragraphs 2(b) and (c) and reletter subsequent paragraphs accordingly: "(b) Make Cheryl Cody, Chester Clark, and Ste- phen Ward whole for any loss of earnings they may have suffered by reasons of the discrimination against them, plus interest. "(c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. 4. Substitute the attached notice for that of the Administrative Law Judge. We have found that Ihis conduct by Bianca, as well as his remarks to Ward in July and September 1976 were violative of Sec. 8(a)(I) of the Act. 344 NIAGARA FALLS MEMORIAL MEDICAL CENTER APPENDIX DECISION NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WiLL NOT discriminatorily reprimand or suspend employees, or unilaterally change their working conditions, or threaten to do so, to dis- courage membership in or support of Buffalo & Western New York Hospital & Nursing Home Council, AFL-CIO, or any other union. WE WILL. NOT threaten employees with repri- sals because of their activities on behalf of the above-named or any other union; prohibit em- ployees from talking about the Union in the ab- sence of a valid rule prohibiting union activity on working time; deny employee requests for union representation at investigatory interviews which they reasonably believe might result in disciplinary action, or coercively interrogate employees about their union activities. WE WILL NOT in any other manner interfere with, coerce, or restrain employees in the exer- cise of rights guaranteed in Section 7 of the Na- tional Labor Relations Act, as amended. WE WILL remove from our personnel files and records all references to the reprimands issued to Helen Lee on January 3 and 19, 1977, and to Cheryl Cody dated February 10 and May I, 1977; WE WILL remove all copies of suspension and reprimands issued to Chester Clark between October 1, 1976, and January 4, 1977: and wF WILL remove any and all references to the sus- pension of Stephen Ward. WE WILL make whole Cheryl Cody, Chester Clark, and Stephen Ward for any loss of earn- ings they incurred as a result of our discrimina- tion against them, plus interest. WE WILL restore the working conditions of the kitchen employees to what they were immedi- ately before the meeting of February 10, 1977, without depriving them of any privileges they now enjoy. WE WILL, upon request, bargain collectively in good faith with the above-named Union as the certified representative of the employees in the appropriate unit of all full-time service and maintenance employees concerning any' changes in their working conditions. NIAGARA FALLS MEMORIAL MEDICAL CENT- ER, INC. STATEMENT OF THE CASE ALMIRA ABBOT STEVENSON, Administrative Law Judge: This case was heard in Buffalo, New York, May 9-12, 1977. The charge in Case 3-CA-6814 was filed and served on the Respondent November 5, 1976; the complaint was issued February 17, 1977. The original charge in Case 3- CA 6933 was filed February 25, and served February 28, 1977: an amended charge was filed and served, and the complaint was issued, March 18, 1977. An order consoli- dating cases was also issued March 18, 1977. Pursuant to notices of intention to amend issued May 2 and 5, 1977, the consolidated complaint was amended, and it was also further amended, at the hearing. The Respondent duly filed answers, and amended its answers at the hearing. The issues are whether or not the Respondent violated Section 8(a)(3) of the National Labor Relations Act by (I) issuing and/or placing reprimands or warning letters in the personnel file of employee Chester H. Clark Ill, suspend- ing him twice, issuing him an unsatisfactory evaluation, and denying his annual pay increase; (2) twice repri- manding employee Helen Lee: and (3) suspending Stephen Ward: violated Section 8(a)(3) and (5) by unilaterally changing working conditions in retaliation against employ- ees' concerted union activities: and whether or not the Re- spondent violated Section 8(aX1) of the Act by threatening Stephen Ward with possible reprisals for supporting the Union, prohibiting employees from talking to other em- ployees, interrogating employees, and twice denying em- ployee Cheryl Cody's requests for union representation at disciplinary interviews. For the reasons given below, I conclude that the Re- spondent committed some, but not all, of the violations alleged. Upon the entire record., including the demeanor of the witnesses, and after due consideration of the briefs filed by the General Counsel and the Respondent, I make the fol- lowing: FINI)IN(iS OF FACT AND CONCLUSIONS OF LAW I JURISDICTION The Respondent is a nonprofit New York corporation engaged at its 621 Tenth Street, Niagara Falls, New York, facility and at other facilities as a private hospital. During the past year. the Respondent received gross revenues in excess of $250,000 and received goods and matenals val- ued in excess of $5,000 directly from outside the State of New York. The Respondent is therefore engaged in com- merce within the meaning of Section 2(6) and (7) of the Act, and it will effectuate the policies of the Act to assert jurisdiction in this proceeding. T' he (iencr;l ( Counsel', rnollon to correct errors in transcript is granted in the absence of ipposillon 345 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I1. lABOR ORGANIZAtION The C'harging Party Union is a labor organization within the meaning of Section 2(5) of the Act. Ill1 tNFAIR LABOR PRA('II('iES A. Background The Respondent admits, and I find, that the following persons are its supervisors and agents: Donald Corey, hospital administrator William Gi. Irr, vice president of plant services Robert Klumpp, vice president for patient services Ronald Gates, director of personnel Leonard LaFrenere, director of maintenance Dominic Bianca. director of food services Ronald Swader, director of environmental services (housekeeping) M. Latta, supervisor R. N. Stewart. supervisor The Respondent employs approximately 1000 employees of whom about 470 are service and maintenance. The Union's most recent campaign among the latter group (and the technical employees) got under way in December 1975 with the distribution of literature and the holding of em- ployee meetings. The Respondent conducted a vigorous campaign against the Union, and a National Labor Rela- tions Board election was conducted September 16, 1976. The Union won the service-and-maintenance unit but lost the technical unit: no objections were filed.2 In early De- cember Union Representative William Yarmal gave the Respondent's attorney the names of a five-member, em- ployee-elected, negotiating committee, and obtained agree- ment for them to be excused from their duties for that purpose. Negotiations began later in December 1976 or early in January 1977. At the time of the hearing, no agree- ment had been reached except that five stewards were ap- pointed, and acknowledged, and a grievance procedure was put in effect covering suspension and discharge only, on March 7, 1977. Stephen Ward is chief negotiator and chief steward, and members of the negotiating committee and stewards are Chester Clark, Helen Lee, Ruth Smith, and Pearlie Everett. B. Chester Clark The compliant alleges that the Respondent issued a writ- ten reprimand to Clark October 1, 1976, placed five previ- ous verbal reprimands in his personnel file October 12, is- sued a second written reprimand and suspended him for 5 days November 4, gave him an unsatisfactory work evalua- tion November 12 resulting in a denial of his annual pay increase, and suspended him for 3 days January 4, 1977, because of his Union and concerted activity. The Respon- dent contends that Clark's work was inadequate and that he was indifferent and irresponsible. 2 T'he Respondent admits that the certified unit of all full-time and regu- larly scheduled part-tinme sern ice and maintenance employees is appropriate Clark was hired as a carpenter in maintenance Novem- ber 12, 1975. At his employment interview Vice President of Plant Services William Irr told him that although the job called for a journeyman carpenter, the hospital was non- union and no union apprenticeship or union card was nec- essary as long as he could do a carpenter's job.3 Clark's immediate supervisor throughout was Leonard LaFrenere. On December 26, 1975. he evaluated Clark as good in all aspects of his work, and as a satisfactory em- ployee. Other than participating in a March 1976 general wage increase, Clark has never received a pay raise. Clark became active in the Union campaign in April 1976. He attended meetings, distributed literature, and ob- tained signatures on 100 union-authorization cards. He was on the committee to telephone employees during the week before the election. He was a union observer at the election which was held September 16. Vice President Irr and Director of Maintenance LaFrenere testified they be- came aware of Clark's union activity in July. Irr testified that he was surprised to learn that Clark was an observer as Irr did not believe there was a need for a union at the hospital. It is clear that LaFrenere rode hard on the main- tenance employees, complaining about Clark's and ev- erybody else's work daily, saying he did not like something that had been done, telling them to change it and do it in a different way, including complaining about their sloppy workmanship and failure to clean up. On May 7, 1976, LaFrenere issued Clark a verbal repri- mand and gave him a copy, because he drove his truck across the lawn. The reprimand states, The above mentioned employee has been advised that this reprimand constitutes a warning and a guide to future conduct. Continued violation will result in dis- ciplinary action possibly involving temporary suspen- sion without pay or discharge. On October 1, 1976, Irr and LaFrenere called Clark into the office and handed him a written reprimand for disre- gard of hospital property and sloppy workmanship, de- tailed as discussed below. Clark read the reprimand and told Irr and LaFrenere it was ridiculous, but LaFrenere told him his workmanship was sloppy, and he did not clean up after himself, and did not use drop cloths. 4 Clark substantially conceded, and I find, that he com- mitted the errors attributed to him in the October I repri- mand, except for damaging the light fixtures in the instru- ment room. Thus, in March, when he and other maintenance employees were doing construction work in the offices of Dr. Macaluso and Dr. Mash, they used an antique desk as a work bench to lay their tools on until LaFrenere told them to take their stuff off and put a pro- tective covering over the desk, and they failed to protect the rug from debris and dust until LaFrenere admonished them to use drop cloths. The damage to the light fixtures in Based on Irr's testimony, which is more plausible than ('lark's version of this interview. 4 I do not credit Clark's testimony that Irr and Lal:renere expressed op- position to C lark's prounion 'iews. Clark's testimony regarding his employ- ment interview with Irr has been found implausible above, and his de- meanor was not sufficiently impressive to offset their denials that the Union was mentioned and the absence of an tither evidence of antiunion remarks bh either of them 346 NIAGARA FALLS MEMORIAL MEDICAL CENTER the instrument room occurred in April or May while Clark and two other employees were dropping the ceiling there: two of the new lights to be installed were delivered with broken diffusers. When LaFrenere, upset over having to order new ones, asked Clark how the diffusers were bro- ken, Clark said he did not know. Electrician Stephen Ward testified he was responsible for installing these fixtures. Again in June, Clark and others failed to use drop cloths and to keep the area free from debris while working in Dr. Marino's office. Also while working on that job in June, LaFrenere remonstrated with Clark and maintenance man Dominic Tolfa for breaking up salvageable pieces of wall board, and, subsequently, for excessive use of new tile in repairing the ceiling. On September 8, LaFrenere told Clark and Tolfa to stack old ceiling tiles they were replac- ing in the physical therapy room in the corner and to clean up before they' left for the day; they stacked the tiles as instructed but left without cleaning up. On September 21 or 22. Clark failed to sand some storage shelves he built in the X-ray room leaving them rough and splintered. Clark claimed he and others had built many X-ray storage cabi- nets the same way before without complaints. Also in Sep- tember, Clark was instructed to build a medicine cabinet with a lock for the storage of drugs in the family practice center. Employees of the center complained to Vice Presi- dent Irr that the doors of the cabinet could be lifted out even while locked. Irr explained to Clark how the cabinet should have been built and instructed him to fix it. LaFrenere testified that the decision to issue the October I reprimand was made when Irr told him about the inci- dent of the drug cabinet in the family practice center, and LaFrenere then informed Irr about the other incidents, for which he had given Clark verbal reprimands, all of which were then incorporated into the written reprimand. They conceded that none of the other employees involved in the incidents were given reprimands, and I do not credit their testimony that this was because Clark was in charge of the projects. Clark testified, and in the absence of any testi- mony to the contrary, I find, that he was never told he was in charge of any project. On October 12, 1976, five verbal reprimands by LaFren- ere were placed in Clark's file in the personnel office. All referred to incidents covered in the written reprimand of October 1. There is no explanation as why the reprimands were not put in the file until October 12. Although each form states clearly on its face, "Forward to Personnel De- partment Immediately," LaFrenere could not say exactly when he wrote most of them up, what he did with them, or when they were forwarded to the personnel office. He con- ceded they should have been in the file by October 1. On about November 4, 1976, Irr sent for Clark and La- Frenere to come to his office where he handed Clark a second written reprimand dated November 3 which carried with it a 5-day suspension without pay. Clark read over the reprimand, protested it was ridiculous, and charged man- agement with harassing him for his union activity. He pointed to the second item on the reprimand, that he replaced some porch steps without getting them painted, primed, or sealed before nailing them down, asked what it meant, and said he had done what his boss had told him to do. They informed him, "that you always paint and prime steps be- fore they are put on .... They told me that the)' were unhappy with my work since the last reprimand they gave. (Clark admitted all the incidents cited. Although Clark testified he cut a carpet in Dr. Marino's office in June or July (before his first written reprimand) Irr testified he did not hear about it until after Clark's October I reprimand. Clark testified he failed to report the cut because he as- sumed that LaFrenere's brother, who was working with C'lark and knew about his cutting the rug, would tell La- F:renere about it. The porch steps were built during Octo- ber. When he finished the job, LaFrenere asked him if he painted them. Clark said he had not, as LaFrenere had not instructed him to. LaFrenere said he should always paint steps before they are built, but Clark testified that of the hundreds of houses he had built and remodeled, he has never seen steps painted before they are built. He claimed the nails would spoil their appearance. With respect to the third item on the reprimand. Clark testified that while he was working on the steps, employee Richard Winker of- fered to carry the old boards to the alley. Although Clark cautioned Winker that the nails had to be removed or pounded down, Winker either did not hear or ignored him. leaving the boards in the alley with the nails exposed creat- ing a safety hazard. Clark built some crooked sidewalk forms in October because, he said, no metal stakes were available and the wooden stakes he used were ineffective in the black top and stone base on which he had to work. LaFrenere sent him back the next day to straighten the forms, which he did without using any metal stakes. About October 22 Irr discovered Clark had mounted a bulletin board with big heavy 16D coated nails when, according to Irr. it should have been screwed to the wall or suspended with picture-frame wire. Clark said he used a big nail be- cause there was only one stud in the wall, and that he had previously hung a bulletin board with a 16D nail and no one had complained. On November 12. LaFrenere gave Clark his annual per- formance review., rating him marginal and commenting on his sloppy workmanship and creating safety hazards. Clark was denied his l-year. 10-cent-an-hour wage increase. On January 4, 1977. LaFrenere handed Clark his third written reprimand and second suspension: On 1-4-77 you were working in the administration area & vour failure to clean up after the job has brought criticism to the dept from administration & Doctors. Clark had mounted plastic corner guards at II locations throughout the hospital, and left work without cleaning up the plaster and dust which had fallen on the floor in each place. Clark testified he went by the housekeeping depart- ment at or about 3:40 p.m.. to tell them to vacuum but no one was there. and that he left work anyway as he knew that housekeeping vacuumed after 3 p.m. everN da\. Clark was suspended for the 3 days. Chester (Clark testified that he was not aware of being disciplined for any of the above incidents when they hap- pened, except for the May 7 verbal reprimand. the October I written reprimand, and the November 4 and January 4 written reprimands and suspensions. He said he thought 347 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the May 7 reprimand was a written one, and that a verbal reprimand was only a chewing out of which no record was made. The record shows that other employees were given verbal reprimands without receiving copies and sometimes without their knowledge. The personnel handbook states, under disciplinary procedure on p. 28, that "All discipli- nary action, including verbal reprimands, become a perma- nent part of the employee's personnel record," and the rec- ord shows that verbal reprimands of other employees were reduced to writing. Personnel Manager Ronald Gates testi- fied that "it is not the procedure to" give employees copies of verbal reprimands (although some are) and that they are not always forwarded to the personnel office at the time of the incident as they should be. The General Counsel contends that the complaints against Clark were frivolous, unreasonable, and contrary to past practice and to the Respondent's treatment of other employees. She further contends that beginning shortly af- ter the Union won the election, the Respondent amassed a lot of minor incidents, many of them previously known to it but not known to Clark as being the basis of reprimands, to build a case against Clark as a pretext for suspending him without pay and denying his annual wage increase, the real motive for which was his union activity. The General Counsel's contentions are supported by the following factors: (1) Clark was one of the two most active and aggressive Union advocates. (2) Other management officials of the Respondent are found below to have committed unfair la- bor practices. (3) The timing of Respondent's disciplinary steps toward Clark coincide to some extent with the in- creasingly leading role Clark played in the union move- ment and the Respondent's knowledge of it. Thus, al- though Clark was presented with a copy of a verbal reprimand on May 7, before the Respondent became aware of his union activity, no reference was made to his having been issued verbal reprimands for misuse of the antique desk or the broken light diffusers which had al- ready occurred. Nor were any of the subsequent incidents employed as an instrument for bringing to Clark's atten- tion the prior verbal reprimands until shortly after Clark served as a Union observer in the September 16 election when an incident involving the drug cabinet was used as the occasion for confronting him with the verbals, and within a month after that written copies of the old verbal reprimands were placed in his file and an additional list was presented to him. His second suspension occurred af- ter he was known to have been elected to the Union negoti- ating committee. (4) The Respondent failed to explain the timing of the date the old verbal reprimands were placed in the file. (5) Clark clearly was not responsible for one of the incidents, the broken light diffusers, although he was blamed for it instead of Ward who, if anyone, was respon- sible. (6) None of the other employees involved in some of the incidents was reprimanded, and I have rejected the Re- spondent's purported explanation, that Clark was the one in charge. (7) Some of the incidents seem too trivial to form the basis of a reprimand, and there appears to be no clear policy with regard to the extent of cleanup expected of the maintenance employees. On the other hand, the following factors support the Re- spondent's defense: (I) There is no credited evidence of anti-union animus on the part of Irr or LaFrenere, who were solely responsi- ble for the disciplining of Clark, except for Irr's expressed view that a union was not needed at the hospital. (2) Clark clearly was guilty in every instance but one of the miscon- duct with which he was charged. There is no indication that any of these incidents by themselves would have got- ten Clark into serious trouble. It was the cumulative effect of the incidents, some of which the Respondent considered unworkmanlike carpentry, that was his downfall. Not being persuaded that the carpentry jobs were not per- formed in an unworkmanlike manner, I cannot say that the Respondent's view was unreasonable. (3) Although the general cleanup policy for maintenance may have been un- certain, it is clear that Clark himself had been warned re- peatedly over this entire period about his failure to clean up and yet he continued to ignore the warnings, an indiffer- ence which culminated in his January 4 suspension for leaving dust and debris at I I different locations throughout the hospital. (4) This record does not justify a finding that the Respondent departed from an established uniformly followed disciplinary procedure in its handling of Clark's case; and he was not the only hospital employee who was disciplined, as reprimands, suspensions, and even dis- charges were not uncommon, nor was he the only one who was given verbal reprimands without knowing about it. (5) The timing theory is considerably weakened by the fact that although the Respondent failed to resurrect Clark's previous verbal reprimands for incorporation in the May 7 reprimand, before it knew about his Union activity, it also failed to resurrect them and several subsequent ver- bals at its first opportunity after it had such knowledge, on September 8 when he failed to clean the physical therapy room, or at its first opportunity after he served as a Union observer at the election when he failed to sand the storage shelves in the X-ray room. Between then and the time Clark botched the drug-cabinet job, his participation in union activities did not change. In all these circumstances, I find that although some of the factors involved in the Respondent's conduct toward Chester Clark on October I and October 12 are suspicious, a preponderance of the credible evidence fails to establish that any of the Respon- dent's conduct toward Clark was motivated by discrimina- tory considerations. Accordingly, I conclude that no viola- tion has been shown and this allegation must be dismissed. C. Helen Lee The complaint alleges that the Respondent issued repri- mands to Helen Lee January 3 and 19, 1977, because of her union activities. The Respondent contends that the con- duct, by its director of environmental services, Ronald Swader, were honest mistakes and not discriminatorily mo- tivated. Lee has been employed for 6 years as a cleaning lady. Before September 16, 1976 her union activity consisted only of attending union meetings, but she was a union ob- server at the September 16 election, and in early December she was elected a member of the negotiating committee on which she began to serve in late December or early Janu- 348 NIAGARA FALLS MEMORIAL MEDICAL CENTER ary. Her immediate supervisor is R. N. Stewart (who did not testify) and her department head is Ronald Swader. Swader testified on direct examination that he was first aware of Lee's Union activity on March 7, 1977, when her name was posted as a steward. On cross-examination, how- ever, he conceded he knew she was being excused after December 1976 to attend negotiating sessions. Before the union campaign, Lee had been given one written reprimand, by Swader. in October 1975, for insub- ordination in refusing to clean extra rooms at the request of a supervisor. Since the negotiations began, Swader has given Lee a verbal reprimand and a "documentation." The verbal rep- rimand was dated January 3, 1977 and stated, Mrs. Lee was observed removing ornaments from Christmas tree on her assigned floor. This is not in her job description. As a result her work was being ne- glected. Lee testified that this incident occurred in late afternoon when she had only one more patient's room to clean and was waiting for a visitor to leave that room. Rather than remain idle, she began removing ornaments from the Christmas tree in the lounge. Swader came in and informed her that removing Christmas-tree ornaments was not in her job description and to go back to her regular duties. Evad- ing repeated questions on cross-examination as to whether he knew Lee had rooms to clean at the time, Swader insist- ed she should have had rooms to clean but did not know what if any duties she failed to perform that day. Lee testi- fied she had never seen a job description and Swader con- ceded he had never shown one to her. Lee testified that she had performed all other work required of her that day. and after Swader left the lounge, she merely waited for the visit- or to leave so she could clean the last patient's room. Swad- er conceded that maids were not to clean patients' rooms while visitors were present and that it was Lee's duty to keep the lounge clean, although he said floor clerks or aides generally take Christmas-tree ornaments down. On Monday, January 16. Lee became ill at work with a fast heartbeat, an ailment she had in the past been treated for at the hospital emergency room and sent home from work. On this occasion, Lee left her work and went to the health nurse who directed her to the emergency room. In the emergency room, a physician advised her to see her own doctor. On her way out of the hospital, Lee advised Supervisor Latta she had been to the emergency room and was going home. Latta said all right and Lee punched out. leaving her vacuum cleaner unemptied. Lee visited her doctor that afternoon and on his advice stayed home all day Tuesday. She returned to work Wednesday. On Wednesday, January 19, Swader summoned Lee to his office and in the presence of Supervisor Stewart gave her a written "documentation." which he construed as a reprimand, for punching out without informing a supervis- or, and failing to empty her vacuum cleaner before she left. Swader testified he told Lee the rules required her to seek permission from someone in authority before visiting the health nurse or the emergency room. He testified he did check with the emergency room and, "They said that she was ill and being sent home." He conceded he would not expect an employee suffering fast heartbeat to seek permis- sion to visit emergency, but claimed he was not aware Lee had a heart problem. The disciplining of this employee. who had received only one reprimand more than a year previously, during the 6 years of her employment for this conduct was so clearly unreasonable that the Respondent admits it was a mistake. I find that it was more than an "honest" mistake, however, as the Respondent contends. Swader's evasiveness in at- tempting to justify himself, and his attempt at downright falsehood about knowing of Lee's position as a member of the U.nion negotiatingcommittee, convinces me, even in the absence of direct evidence of antiunion animus, that his true motive was to punish or intimidate her because of her committee membership. I conclude that Swader thereby discriminated against Lee to discourage her union activity, in violation of Section 8(a)(3) and (I) of the Act.5 D. Stephen Ward The complaint alleges that the Respondent suspended Ward on January 8. 1977 because of his union activity. The Respondent asserts that Ward was suspended for stealing food from the hospital cafeteria. Ward has been employed by the Respondent for 6 years as an electrician under the supervision of Leonard LaFren- ere and William Irr. He never received a reprimand. He is a board member of the hospital credit union, an active member of its communications council and safety-inspec- tion team. and has received commendations for his work on the United Way Fund drives and for founding the spe- cial memorial care fund. Ward was one of the most active union advocates, at- tending meetings, passing out approximately 200 authori- zation cards, and obtaining employee signatures on 100 cards. Ward was the chief Union observer at the Septem- ber 16 election, and became its chief negotiator. Ward testified without dispute and I find that in July 1976. Director of Food Services Dominic Bianca told him, "1 heard )ou are pushing the Union." and when Ward responded he would decide whether or not the Union was good for him, Bianca said. "Things are going to change around here if the Union gets in: You would be a damn fool if you vote for the Union." In August, when Ward was working in the special procedures department two nurses asked him, in LaFrenere's presence. how the Union was going, and a week later LaFrenere told him if he wanted to talk about the Union. to do it on his own time, and not on the hospital's time., On the day after the election, Ward testified, and I find in the absence of a flat denial, that Bianca told him. "You think you're a big hero now because you won the election, let's wait six months from now and see if you are a big hero." The events of FebruarN I are not substantially disputed. See iShairatu I)lA nn Mintrig ( orproratio:n (Iron Aing Branch), 362 F 2d 466. 47( (('A. 9, 19,6) ° Baed ,m Ihe iist111o1i~ of L.al recre whorm I hae c.redited above Ward i neot crediled where hi, teostimon is contradlcted hb 1linesses more helievabl e ih an he 349 DECISIONS OF NATIONAL LABOR RELATIONS BOARD While Ward was in the kitchen on assignment, two em- ployees, Carol Giariano and Mary Battalgia, engaged him in conversation for 2 to 10 minutes. Shortly after that, Bi- anca called the two into his office. Bianca asked Giariano if she had been talking about the Union; she denied it; Bianca told her when Ward was in the kitchen he had work to do. Bianca asked Battalgia what she had been talking to Ward about; she replied it was idle conversation; Bianca told her not to talk to Ward while he was in the kitchen. Neither of the two employees had been prohibited from talking to anyone before. It is substantially undisputed that on February 8 Ward went to the hospital cafeteria on his coffee break just be- fore 10 a.m., as usual. About 5 minutes after he joined other maintenance employees at a table, Bianca and Vice President Irr requested him to follow them to the office. In the office, Bianca accused Ward of taking jelly he did not pay for. Ward responded, "Can you prove that?" Bianca said he had seen Ward do so. Irr suspended Ward pending discharge until further notice, and accompanied him out of the hospital. On the way out, Ward asked Irr, "Do you realize what effect this is going to have on my wife and children?" After a conference with union representatives, the Re- spondent decided on a 3-1/2 day suspension. Ward testified he did not steal the jelly, and explained that the reason he did not deny it at the time was that "it was an obvious concoction." He also explained he made the remark about his wife and children because "anyone who loses their job, it would have quite an adverse effect on their wife and family." The Respondent presented evidence that Leonard La- Frenere had told Vice President Irr in late January that LaFrenere's brother, a maintenance employee, had said it was well known throughout the maintenance shop that Ward had been taking jelly out of the cafeteria for some time without paying for it. Irr, who was responsible for security, subsequently reported this to Administrator Co- rey. Corey then passed the intelligence along to Bianca who was repsonsible for the cafeteria. Bianca and Rose Heiman, a 50-year employee of the hospital who was cafe- teria supervisor and cashier, both testified that Bianca re- quested her to watch Ward when he went through the cafe- teria line February 7. Both testified they saw Ward pocket two packages of jelly worth about 3 cents each. He paid the cashier 21 cents, the price of coffee and toast which he had on his tray. Bianca followed Ward and observed him at a table spreading the jelly on his toast. The next morning. Bianca again requested Heiman to watch Ward; both Hei- man and Bianca watched him; both saw him put two packs of jelly in his pocket. He checked through without paying for it. It was after this that Bianca asked Irr to accompany him to Ward's table in the cafeteria, where they claimed they observed jelly containers on the tray, and they re- quested Ward to accompany them to the office, with the results discussed above. Employees Randall Clark and Vennie Moore testified they were in the cafeteria line with Ward on February 8 but did not see him take any jelly. Employee Aloysius Knoll and Randall Clark testified they regularly share Ward's table at coffee break. Knoll said he has reason to observe Ward's eating habits, as they both have high blood pressure, and that he never saw Ward eat jelly; and he did not eat any February 7 or 8. Randall Clark testified he has known Ward to have jelly on coffee break occasionally, but he did not have any on February 8. After careful examination of all the testimony taken re- garding this matter, I am convinced and find that Ward did indeed steal the jelly. In all the circumstances I agree with Respondent that he would have denied it at once if he had not done so. Moreover, I cannot help note that in mentioning the effect of his suspension on his family he was concerned not with the damage to his reputation caused by being called a petty thief, but of his loss of in- come. Even though Ward's record of job performance and charitable activities at the hospital was superior, these facts do not necessarily correlate wholly with honesty and truth- fulness. On the other hand, Heiman's demeanor was that of a truthful person, and Bianca, although strongly antiun- ion, was not shown to be untruthful. Both were in positions to see what happened. Ward's colleagues, on the cafeteria line and at the table, were not conscious at the time, as Bianca and Heiman were, of the jelly issue and I believe Ward could have pocketed it without being seen by Ran- dall Clark or Vennie Moore, and that Clark and Knoll (who were somewhat inconsistent about Ward's jelly-eat- ing habits) had no reliable memory of whether or not he ate jelly on February 7 and 8. The issue then is whether Irr and Bianca seized upon a trifling matter as a pretext for disciplining Ward. It is true that Ward was the leader of the union movement, as Irr and Bianca knew. Moreover, Bianca was strongly anti- union, and, as found below, he interfered with the Union activities of employees including Ward whom he threat- ened right after the election. However, although Bianca had no authority to discipline Ward, he was carrying out his responsibilities when, upon being tipped off by the hos- pital administrator, he confirmed with the support of his witness, that Ward was stealing jelly from the cafeteria, and when he reported it to Irr. Irr had the disciplinary authority, and although he knew about Ward's Union lead- ership, and probably of Bianca's antiunionism, there is no credible evidence that Irr harbored any antiunion animus. Moreover, Irr was confronted with evidence, which Ward did not deny and which, I have found, was true. Would Irr, absent Ward's known Union leadership, have meted out less severe discipline or none at all to Ward because of his long superior service? The personnel handbook lists theft a cause of immediate discharge at the first offense. Although Director of Maintenance LaFrenere gave hospital property of small value to employees upon occasion, there is no indication that stealing by employees was tolerated or that Ward was treated differently from any other employee in similar circumstances. Although the value of the four pack- ets of jelly Ward was observed taking was small, the Re- spondent was justified, in my opinion, in taking a serious view of theft regardless of the value and regardless of Ward's previous good record and his leadership in the Union. In all the circumstances, therefore, I find that a prepon- derance of the credible evidence fails to support the allega- tion that Ward was disciplined because of his union activi- 350 NIAGARA FALLS MEMORIAL MEDICAL CENTER ties and I conclude that it should be dismissed. E. Unilateral Change in Working Conditions The complaint alleges and the answer denies that on February 10. 1977 Director of Food Services Bianca threatened the kitchen employees with retaliation because they engaged in concerted activity in support of the Union, and unilaterally changed their working conditions by abol- ishing certain privileges in retaliation against them and without bargaining with the Union, in violation of Section 8(a)(1), (3), and (5) of the Act. At a union meeting held after Ward was suspended, Representative Yarmal directed the members to boycott the hospital cafeteria, and to ask for a receipt for anything they did purchase so that, Yarmal explained, they would have proof of payment if they were accused of stealing. The next day, February 10, three employees, Cheryl Cody., Joanne Beningo, and Lampkin purchased coffee in the caf- eteria and asked the cashier, Rose Heiman, for receipts. About 11:30 that morning, Bianca called a meeting of about 40 kitchen employees: Based on the accounts of em- ployees Joanne Beningo and Cheryl Cody and of Supervis- or Bianca which did not vary in essential respects, I find that Bianca told the employees they thought they were cute asking Rose Heiman for a receipt for a 10-cent cup of coffee, but he could be cute, too; he had given them privi- leges but that was going to change; employees would do more cleaning, personal telephone calls would no longer be permitted, and employees would be restricted to the kitch- en except when on break which could be taken only in the cafeteria. After these meetings, the kitchen employees were no longer allowed to drink pop or coffee for a short period after clearing the lunch belt but were required to spend the time cleaning, no longer allowed to go anywhere except the cafeteria on break, and personal telephone calls and bathroom privileges were restricted. Bianca and Beningo testified Bianca calls such meetings about once a month when the kitchen got dirty, to jack the employees up on their cleaning habits, and three or four times a year he tells the employees he is not going to give them privileges if they do not shape up. The conduct of Bianca on February 10 was clearly not a mere continuation of his past practice of calling meetings and tightening up on the rules because employees had been goofing off. The February 10 meeting was called and more onerous rules were imposed solely because three employees had requested receipts for coffee as advised by their union representative at a union meeting after the union leader was suspended. I find that the three employees were en- gaged in concerted union activity in requesting the re- ceipts, and I conclude that Bianca's threatening remarks and unilateral changes in working conditions in retaliation therefor constituted violations of Section 8(a)(1), (3), and (5) of the Act, as alleged in the complaint. F. Interference, Restraint, and Coercion The complaint alleges in effect and the answer denies that Director of Food Services Bianca threatened Stephen Ward with possible reprisal because of union activity on September 17, 1976; interrogated Carol Giariano and pro- hibited Giariano and employee Mary Battaglia from talk- ing with other employees because of union activity on Feb- ruary 1; that Bianca and Personnel Director Ronald Gates denied employee Cheryl Cody's request for union represen- tation at an interview on February 10, 1977. which resulted in disciplinary action; and that Bianca and Vice President for Patients Services Robert Klumpp denied Cody's re- quest for union representation at an interview which result- ed in disciplinary action on May 4, 1977. The allegation that Bianca threatened Ward on Septem- ber 17, 1976 is based on the statement I have found Bianca made to Ward on that date, the day after the election, "You think you're a big hero now because yvou won the election, let's wait six months from now and see if you are still a big hero." This is an implied threat, and it coerced Ward in the exercise of his rights under Section 7 of the Act. I conclude that it violated Section 8(a)( I). In addition. Bianca interrogated Ward, and threatened him in July 1976. Although not specifically alleged, this incident was fully litigated, and I conclude that it also constituted a violation of Section 8(a)(1).7 di3anca's alleged interrogation of and interference with Giariano and Battaglia are based on the facts, as found above, that on February I he asked Giariano if she had been talking to Ward about the Union, and told the two employees not to talk to Ward while he was in the kitchen. This conduct constituted coercive interrogation of Giari- ano, and, in context and in the absence of a valid rule prohibiting union activity on working time, also consti- tuted interference. I conclude that the Respondent thereby further violated Section 8(a)(1) of the Act. Earlier in the morning of February 10, the same day that Bianca called the employee meeting discussed above, he called kitchen employee Cheryl Cody out of the ladies' room where she was conferring with employee Diane Green. and took her to Personnel Director Ronald Gates' office. On the way. Bianca accused Cody of pulling people off the job, taking too many and too long breaks, being a lousy worker, calling in sick too much, and said she should be canned. When they arrived in Gates' office, Gates was on the telephone. Codv told Bianca she wanted someone in there with her, a representative. Bianca instructed her to sit down and shut up. and told Gates he wanted her warned. Cody's request for a representative was ignored.8 As a re- sult of this interview. Cody received a written reprimand signed by Bianca for neglect of duty. which contained the following language: The above-mentioned employee has been advised that this reprimand constitutes a warning and a guide to future conduct. Continued violation will result in dis- ciplinary action possibly involving discharge. A few months later, on Wednesday, May 4, 1977, Cody was summoned to Bianca's office again, where she found La-renere's remark to Ward in Aufust vas neither alleged to he a Sola tioin nor full\ litigated ' Based chiefl\ on (Codx's credited testimions Bianca did not dens that (Cods requcted representation and GCatles .,as uncertain in the point ('ods explainedthatb eachrequestforrepresentationsheintended. I nion tesardl 351 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bianca, Vice President Klumpp, and Bianca's secretary, Shirley Lloyd. Bianca questioned Cody about being off sick the preceding Thursday through Sunday. He said she was seen out driving with her boyfriend on Sunday. Cody denied it and told Bianca it was not any of his business. Bianca responded, "Well, we're going to talk to Mr. Klumpp." Cody told him she would want a representative, and returned to work. Fifteen minutes later Lloyd came to the dishroom and told Cody she was to come to Klumpp's office. On the way, Cody asked Lloyd if there was going to be someone there to represent her and Lloyd said she did not know, to ask when she got there. In Klumpp's office, Klumpp conceded, Cody requested representation at the meeting. The request was denied, Klumpp said, because the interim agreement with the Union provided for repre- sentation "for suspension and discharge only.... This was a fact-finding inquiry about her whereabouts on that Sunday." Cody admitted, in his meeting, that she had been out in her car with her boyfriend that Sunday. As a result of the meeting, Gates testified, Cody "was given a verbal reprimand or a warning. .... For lying about her wherea- bouts on that Sunday," and that she was deprived of I day's sick leave and not paid for Sunday. Personnel Direc- tor Gates conceded that a verbal reprimand is the first stage of the disciplinary procedure, and that it can be "the beginning of a very serious type of discipline." It is well established that an employer's denial of an employee's request that her union representative be present at an investigatory interview which the employee reason- ably believed might result in disciplinary action constitutes an unfair labor practice in violation of Section 8(a)(1) of the Act.9 That Cody reasonably believed that these inter- views might result in disciplinary action is clearly estab- lished by the evidence including the fact that disciplinary action was indeed taken against her on both occasions. Her statutory right to be represented upon request clearly had not been waived by the interim agreement between the Union and the Respondent setting up a grievance proce- dure applicable only to suspensions and discharges. Accordingly, I conclude that the Respondent violated Section 8(a)(1) by denying Cody's requests for representa- tion at the disciplinary meetings of February 10 and May 4, 1977. THE REMEDY Having found that the Respondent has engaged in unfair labor practices in violation of Section 8(a)(1), (3), and (5) of the Act, I recommend that the Respondent be ordered to cease and desist therefrom and to take certain affirma- tive action designed to effectuate the policies of the Act. Having found that the Respondent violated Section 8(a)(1) of the Act by reprimanding Cheryl Cody and deny- ing her a day's sick-leave pay, I recommend that the Re- spondent remove the reprimands dated February 10, and May 1, 1977, from its files and pay her one day's pay plus interest at 7 percent a year from the date of the first pay day after Sunday, May 1, 1977. °0 N. L R.B. v. J Weingaorten. Inc. 420 U.S. 251 (1975); Climax. Molhbde- num (onlpan,. a Divi.ion of Alma.. Inc.. 227 NLRB 1189 (1977). it) Florida Srteel ( orporation, 231 NLRB 651 (1977). Although the General Having found that the Respondent violated Section 8(a)(3) of the Act by reprimanding Helen Lee, I recom- mend that the Respondent remove from its files the repri- mands dated January 3 and 19, 1977. Having found that the Respondent violated Section 8(a)(3) and (5) by unilaterally changing working conditions of kitchen employees February 10, 1977, in retaliation for their union activities, I recommend that working condi- tions be restored to what they were immediately before the change, and that the Respondent bargain in good faith with the Union in the appropnate unit of all full-time and regularly scheduled part-time service and maintenance em- ployees concerning any changes in working conditions in the future. Nothing in my recommended Order shall be construed as depriving employees of any privileges they may now enjoy. Upon the foregoing findings of fact and conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER PI The Niagara Falls Memorial Medical Center, Inc., Niag- ara Falls, New York, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Discriminatorily reprimanding employees, or unilat- erally changing their working conditions or threatening to do so, to discourage membership in or support of Buffalo & Western New York Hospital and Nursing Home Coun- cil, AFL-CIO, or any other union. (b) Threatening employees with reprisals because of their activities on behalf of the above-named Union or any other union, prohibiting employees from talking about the Union in the absence of a valid rule prohibiting union ac- tivity on working time, denying employee requests for Union representation at investigatory interviews which they reasonably believe might result in disciplinary action, or coercively interrogating employees about their union ac- tivities. (c) In any like or related manner interfering with, coerc- ing, or restraining employees in the exercise of rights guar- anteed them in Section 7 of the National Labor Relations Act, as amended. 2. Take the following affirmative action necessary to ef- fectuate the policies of the Act: (a) Remove from its files the reprimands issued to Helen Lee on January 3 and 19, 1977; remove the reprimands of Cheryl Cody dated February 10 and May 1, 1977, and pay her I day's pay plus 7-percent interest. (b) Restore the working conditions of the kitchen em- ployees to what they were immediately before the meeting of February 10, 1977, without depriving them of any privi- leges they may now enjoy. Counsel requested 9-percent interest, I am required to follow the Board. Io.wa Beef Packers, Inc.. 144 NLRB 615 (1963). H 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. 352 NIAGARA FALLS MEMORIAL MEDICAL CENTER (c) Upon request, bargain collectively in good faith with the above-named Union in the appropriate unit of all full- time and regularly scheduled part-time service and mainte- nance employees concerning any changes in their working conditions. (d) Post at its hospital in Niagara Falls, New York, cop- ies of the attached notice marked "Appendix." 12 Copies of said notice, on forms provided by the Regional Director 2 In the event that this Order is enforced hby a Judgment of a UInited States Court of Appeals. the words in the notice reading "Posted hs Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." for Region 3, after being duly signed by an authorized rep- resentative of the Respondent. shall be posted by it imme- diately upon receipt thereof, and maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent ;' insure that the notices are not altered, defaced, or cov- ered by any other material. (e) Notify the Regional Director of Region 3, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS AL SO ORDERED that the complaint be, and it hereby is. dismissed insofar as it alleges violations of the Act not fpund herein. 353