Medical Ancillary Services, Inc.

MEDICAL ANCILLARY SERVICES, INC. 789 Medical Ancillary Services, Inc. and Isabel Gugyela and Office and Professional Employees Interna- tional Union, Local 10, AFL-CIO. Cases 7-CA-8827 and 7-CA-8830 August 9, 1972 DECISION AND ORDER By CHAIRMAN MILLER AND MEMBERS JENKINS AND-KENNEDY On March 15, 1972, Trial Examiner Morton D. Friedman issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel, The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and brief and has decided to affirm the Trial Examiner's rulings, findings,' and conclusions2 and to adopt his recommended Order3 as modified herein. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner as modified below and hereby orders that Respondent, Medical Ancil- lary Services, Inc., Troy, Michigan, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order, as so modified: i 1. Substitute the following as paragraph 1(c): "(c) Engaging in retaliatory and discriminatory harassment of employees for the purpose of discour- aging union membership and activities." 2. Substitute the following for paragraph 2(a): "(a) Offer Isabel Gugyela immediate and full reinstatement to her former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to her seniority or other rights and privileges previously enjoyed, and make her whole for any loss of earnings she may have suffered by reason of the discrimination against her in the manner set forth in the section of this Decision entitled `The Remedy.' " 3. Substitute the attached notice for the Trial Examiner's notice. i The Respondent has excepted to certain credibility findings made by the Trial Examiner It is the Board's established policy not to overrule a Trial Examiner's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions were incorrect Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F 2d 362 (C A 3) We have carefully examined the record and find no basis for reversing his findings We agree with the Trial Examiner's findings that employee Gugyela was discriminatorily discharged in violation of Sec 8 (a)(l) of the Act and that, in the context of this case, postdischarge statements made by her did not constitute sufficient cause to justify Respondent's continuing failure to reinstate her Gugyela has, therefore, a continuing right to be reinstated in her former or a substantially equivalent position Under these circum- stances, we need not , and do not, pass upon the Trial Examiner's additional finding that Respondent's August 1970 refusal to employ Gugyela constituted a violation of the Act 2 We agree with the Trial Examiner's findings that Respondent's actions in searching the desks of employees Passmore and Tavtigian and in removing material from the bulletin board were violative of Sec. 8(a)(1) of the Act However, in our view, the record does not support the Trial Examiner's conclusions that the desk search was designed to discover prounion material or that the removal of bulletin board items was a change in working conditions Rather, we conclude from the timing and other circumstances set forth by the Trial Examiner that these actions of Respondent constituted retaliatory and discriminatory harassment of known prounion employees, undertaken for the purpose of discouraging union membership and activities and, therefore , were violative of the Act. 3 In the absence of exceptions thereto, we adopt pro forma the Trial Examiner's dismissal of the complaint's allegations that employees Bradley, McIntosh, Johnson, and Salimino were discharged in violation of the Act For the same reason, we do not pass upon the Trial Examiner's failure to make findings with respect to the complaint's allegation that certain conduct of Respondent found by the Trial Examiner to be violative of Sec 8(a)(1) of the Act was also violative of Sec. 8(a)(3). APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT give the impression that we are keeping our employees' union or concerted protected activities under surveillance. WE WILL NOT engage in retaliatory and discriminatory harassment of employees for the purpose of discouraging union membership and activities. WE WILL NOT tell our employees that we have discharged any employee for engaging in union or protected concerted activities. WE WILL NOT advise our employees that we will give them a lesser performance rating for engag- ing in union or protected concerted activities. WE WILL NOT discharge or in any other manner discriminate against employees because of their concerted activities for the purpose of mutual aid or protection. WE WILL NOT discourage membership in Office and Professional Employees International Union, Local 10, AFL-CIO, or any other labor organiza- tion, by changing employee working conditions or by placing employees on probation or otherwise discriminating against them in regard to their hire or tenure or conditions of employment or any term or condition of employment. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the 198 NLRB No. 109 790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD exercise of their rights to form , join, or assist or be represented by Office and Professional Employ- ees International Union, Local 10, AFL-CIO, or any other labor organization , to bargain collec- tively with representatives of their choosing, or engage in other concerted activity for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activity. WE WILL offer to Isabel Gugyela immediate and full reinstatement to her job or, if that job no longer exists, to a substantially equivalent posi- tion, without prejudice to her seniority or other rights and privileges previously enjoyed, and we will make her whole for any loss of earnings she may have suffered as a result of our discrimina- tion against her. All our employees are free to become or remain, or refrain from becoming or remaining, members of Office and Professional Employees International Union, Local 10, AFL-CIO, or any other labor organization. MEDICAL ANCILLARY SERVICES, INC. (Employer) Dated By (Representative) (Title) consolidated complaint, the Respondent, while admitting certain of the allegations, denied the commission of any unfair labor practices. Pursuant to notice, a hearing in this case was held before me at Detroit, Michigan, on November 8-11, 1971. All parties were represented and were afforded full opportuni- ty to be heard, to present relevant evidence, to present oral argument, and to file briefs. Oral argument was waived. Briefs were filed by counsel for the General Counsel and the Respondent. Upon consideration of the entire record herein, including the briefs of the parties, and upon my observation of each of the witnesses as they appeared before me, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent, a Michigan corporation, maintains its principal office and place of business in the city of Troy, Michigan, where it is engaged in the business of providing management services for physicians and hospitals. During the fiscal year ending July 30, 1971, a representative period, the Respondent performed services valued in excess of $500,000, of which services valued in excess of $50,000 were performed for clients located in States other than the State of Michigan. It is admitted, and I find, that the Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, 500 Book Building, 1249 Washington Boulevard, Detroit, Michigan 48226, Telephone 216-522-3715. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE MORTON D. FRIEDMAN, Trial Examiner: Upon a charge filed :n Case 7-CA-8827 on July 14, 1971, by Isabel Gugyela, herein called Gugyela, and a charge filed in Case 7-CA-8830 on July 14, 1971, by Office And Professional Employees International Union, Local 10, AFL-CIO, herein called the Union, the Regional Director for Region 7 of the National Labor Relations Board, herein called the Board, issued a consolidated complaint on August 26, 1971, against Medical Ancillary Services, Inc., herein called the Company or the Respondent, alleging violations of Section 8(a)(1) and (3) of the National Labor Relations Act, herein called the Act. In its duly filed answer to the II. THE LABOR ORGANIZATION INVOLVED It is admitted, and I find, that the Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Issues The Union began an organizing drive of the Respon- dent's employees during the month of May 1971. Thereaf t- er, it filed a representation petition with the Board 1 which resulted in a Board-conducted election on July 8, 1971, in which the Union received a majority of the votes. The complaint alleges that before the union campaign began, during the campaign and after the election, the Respon- dent, through various officials and supervisors, conducted a discriminatory campaign among its employees to discourage union and concerted protected activity which campaign consisted of various acts of interference, coer- cion, and restraint, unlawful discharges, and discriminato- ry changes in working conditions. The Respondent either denies that certain of the alleged unlawful acts ever occurred or contends that the action taken in the other instances was necessitated and justified solely for good business and economic reasons, with no discriminatory motivation. 1 Case 7-RC-10583 MEDICAL ANCILLARY SERVICES, INC. B. The Discharge of Isabel Gugyela 1. The supervisory issue The Respondent contends that regardless of the question of whether Gugyela was discriminatorily discharged, in any event, Gugyela was a supervisor and that therefore the Respondent could not have committed a violation of the Act in discharging her. Thus, there is presented the threshold issue of Gugyela's status as of the date of her discharge. Gugyela was hired on August 28, 1968, as a file clerk. After being promoted to successively more difficult and important positions, Gugyela was finally appointed, in October 1970, to the position of quality control coordina- tor and assistant to the director of the claims department. At the time of her discharge, Gugyela was earning $600 a month. Five or six other girls in that department who were admittedly not supervisors and were classified as evalua- tors were receiving the same amount . Gugyela did not receive an increase in salary when she became quality control coordinator . In all her jobs, and in her most recent job, Gugyela punched a timeclock , as did every employee. Supervisors did not . Moreover, Gugyela lunched in the cafeteria in the basement where she ate with other nonsupervisory employees. According to Gugyela, there was a separate dining area for management people. She was not permitted to eat at that facility. At the time of her discharge on January 15, 1971, Gugyela reported to Norma Harvey , her supervisor and head of the claims department. During her tenure of employment with the Respondent, in the position of quality control coordinator, Gugyela never hired, trans- ferred, suspended, laid off, recalled, promoted, discharged or disciplined employees , or adjusted employees' griev- ances. Gugyela spent much of her time performing the work of an evaluator. However, for certain periods each day she checked the work of other employees in the evaluation department for mistakes. She would check billing data, typing, and other errors which might appear on claim sheets. However, although she checked these errors and reported the same to the head of the depart- ment, Gugyela never did recommend any employees for corrective action . Nor did she ever attend supervisory or management meetings although Norma Harvey did. Gugyela was scheduled to work from 8 a.m. to 5 p.m. and was paid for overtime when she worked overtime. However, management and supervisory employees worked on a basic salary and were not paid for overtime ; at least not to Gugyela's understanding. As part of her job as quality control coordinator, Gugyela kept a list of mistakes on a sheet of paper with the person's name thereon who made the mistake . She did this every day. About once a week she would talk to the employees about their mistakes . However, she only did this when she was asked to do so by Harvey. In the 3 weeks prior to her discharge on January 21, Gugyela shared an office with Harvey. There is much testimony in the record concerning 791 Gugyela's authorization of overtime. Respondent intro- duced into evidence timecards of employees in the claims department showing that Gugyela had initialed the timecards and authorized the same . However, it is also apparent from the record that this overtime was not authorized, as such, by Gugyela but was, for the most part, work performed at home by these girls whose overtime was then recorded on an honor system. The girls reporting how much time they had spent at home on Respondent's work. It was at this point that Gugyela was asked to initial the cards and indicate that she had authorized the overtime. Gugyela states emphatically that such authorization as she did exercise was delegated to her by Norma Harvey, or other supervisors . In other words, it would appear that her authorization of overtime was mere routine and did not indicate that she exercised judgment in selecting those who would work overtime nor indicate how much overtime they would work . One time, during a 3-day absence of Harvey, Gugyela did authorize overtime on her own initiative. It would appear, although there were discharges from the department as a result of Gugyela's reporting errors on work of the employees of the department to the supervisor of the department, that Gugyela did not make recommen- dations for discharge nor did she participate in the decisions to discharge. So far as direction of the other employees of the department is concerned, Gugyela did, upon occasion, point out to the employees the mistakes they made. Moreover, Gugyela was, upon occasion, asked which employees were to be assigned certain kinds of work. It was only the supervisor who ultimately made up the lists of assignments and decided which accounts would be given to each employee.2 From the fall of 1967 until August 1970, Yvonne Tilwick was the supervisor of the claims department . During some of that period of time, Gugyela assisted her in certain functions. Thus, when Tilwick was supervisor she was absent occasionally. On these occasions she left instruc- tions to Gugyela as to how to manage the department. These instructions were to make notes of any employees that were absent or tardy ; outline the daily functions in the morning report to be handed to Maria Maraveleas, vice president of the Company ; and more or less oversee the department in Tilwick's absence.3 According to Tilwick, the reason she appointed Gugyela as her assistant was because Gugyela was more capable than other employees and because she could help oversee the area and help with the morning reports. If the girls had any questions, Gugyela could help them and assist them in those areas of their work in which they had doubts . However, according to Tilwick, Gugyela never assigned work to the employees unless Tilwick was absent, in which case , Gugyela might assign work . However, these occasions were very infre- quent. This was so because the employees knew more or less what to do in their jobs. All Gugyela would do in Tilwick's absence was to see that nothing was left undone. Tilwick told the other employees in the department that Gugyela was her assistant and that she was to oversee the operations of the department . However, this more or less 2 All of the foregoing from the testimony of Gugyela, which I credit. 3 From the testimony of Tilwick, which is uncontradicted. 792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD consisted of Gugyela's helping the employees do their work. This was because of her experience. Thus, Gugyela would help the girls solve their work problems, thus eliminating the necessity of the employees bothering Tilwick when there was a question to be asked. Gugyela, however, did not report to Tilwick on the performance of the other employees' work except to routinely list mistakes. At the most, Gugyela would oversee work for a total of I hour per day while the rest of the day she spent doing her own work of evaluation. Although Gugyela's complaints with regard to Yvonne Tilwick's management of the claims department resulted in the demotion of Tilwick to a nonsupervisory position, it is clear from the record that Gugyela made her complaints to higher management not as a representative of such management, but rather as a spokesman for other employees who were likewise disenchanted with the operation of the department by Tilwick. Although Gugyela might, at first blush, seemed to have exercised the authority of a supervisor and seemed to possess the indicia of supervisory authority, a close study of her actual authority leads to the conclusion that Gugyela was a highly skilled and important employee in the claims department, but that such direction of other employees which was authorized to Gugyela to perform was of a routine nature, and did not require the exercise of independent judgment. It is concluded that the authority which was exercised by Gugyela was merely derived from job experience and that the direction which she exercised was that of an experienced employee which is customarily exercised over less experienced employees and is routine in nature. The Board has held that an individual who exercises such a routine form of control or authority is not a supervisor.4 Moreover, it is concluded from all of the foregoing testimony that Gugyela was a mere conduit for the conveying of routine and standardized instructions from the head of the claims department to the employees. Additionally, although Maria Maraveleas testified that Gugyela, on infrequent and sporadic occasions, relayed to management certain complaints against fellow employees, such complaints were investigated independently by management and were not relied on by management for the taking of any action against the employees complained of. Thus even in this respect there is no indicia of supervisory authority with regard to Gugyela. Accordingly, and on the basis of all of the foregoing, it is concluded, and I find, that Gugyela was not a supervisor within the meaning of the Act and that, rather, she was an employee within the meaning of the Act and entitled to the protection of the Act. 2. Gugyela's discharge Gugyela testified that on January 15, 1971, at a time when her supervisor, Norma Harvey, was absent, Gugyela was approached by six or seven employees of the claims department who told Gugyela that they were complaining because they had not received a wage increase which had been promised them when they were hired. Gugyela told these employees that she could do nothing about adjusting their grievance and referred them to Personnel Director Bruce Schulte. Gugyela believed that she had the authority to do this in the absence of Harvey. The employees then went to Schulte who related this matter to Elizabeth Rohrmaier and Maria Maraveleas. While Rohrmaier was discussing the matter with Maria Maraveleas, Peter Maraveleas, the president of the Respondent, approached and, overhearing the conversation, said that he would take care of it. Thereafter, Gugyela was approached by Peter Maraveleas who asked her by what authority she had referred the employees to Schulte. When Gugyela ex- plained to Peter Maraveleas that she thought she had the authority in the the absence of Harvey and because she felt that the protest might lead to a failure of the employees involved to perform their services, Maraveleas began to shout and, according to Gugyela, told her "I know who the troublemaker is. You are nothing but a damn bitch and you have no business interfering with management problems. You stabbed Yvonne Tilwick in the back. I heard you were trying to get a union in the Company." After this, Gugyela was told by Maraveleas that he was going to throw her down the stairs and out of the premises. Gugyela answered that she was leaving and that she did not have to sit there and listen to what Maraveleas was saying. Later, when she was picking up her belongings from her desk, Peter Maraveleas told Gugyela to "get out of the Company and never set foot in it again." According to Peter Maraveleas, the events occurred somewhat differently. In his version, he asked Gugyela why she was doing these things when the director of the department was absent and asked her why these people could not wait until Monday morning upon the return of Harvey. According to Maraveleas, he explained to Gugye- la that it was the policy of the Respondent to relay all complaints and grievances to the various department heads. If the department heads could not satisfy the complaint, the matter was then, and only then, referred to higher management. To this explanation, testified Marave- leas, Gugyela answered "If this is the policy, I quit." Maraveleas replied "I accept your resignation." Gugyela then said that she was going to have to go home to bring back a typewriter which she had borrowed. Maraveleas said "never mind about that." He told Gugyela to give the typewriter to one of the girls she knew on the following Monday. Gugyela began to put her personal things in a box and Maraveleas carried the box to the elevator. That, according to Maraveleas, was the end of the matter on that day. There thus arises the question of whether Gugyela was discharged or whether she quit. There is testimony in the record which would seem to resolve this issue. Yvonne Tilwick, who was at one time the director of the claims department and Gugyela's superior, and whose position as such supervisor was withdrawn by the Respondent at the behest of Gugyela and others in the claims department, testified that within a short time, perhaps a day or so after Gugyela's discharge, she had a conversation with Peter + Sanborn Telephone Company, 140 NLRB 512, 515, G C Murphy Company, 171 NLRB No. 45 MEDICAL ANCILLARY SERVICES, INC. 793 Maraveleas. In this conversation, Maraveleas told Tilwick that he had fired "the troublemaker" and she was no longer in the Company. He said that was the end of the troubles. He also told Tilwick that Gugyela was the primary force for stabbing Tilwick in the back. He also said that Gugyela was responsible for the talk about a union coming into the Company.5 Tilwick further testified that, on one occasion prior to Gugyela's termination, she was asked by Peter Maraveleas "Have you heard Liz [referring to Gugyela] talking about the Union?" Gugyela testified that on January 18, after her discharge, she had a conversation with Elizabeth Rohrmaier, a vice president of the Respondent. In that conversation Gugyela asked Rohrmaier the reason why Gugyela had been discharged. Rohrmaier answered that she understood that Gugyela was "putting her nose into too many things that were none of her business" and whenever there was trouble Gugyela's name was mentioned. She also said that they knew that Gugyela was trying to get a union into the Company,6 As further evidence of what occurred on January 15, the date of Gugyela's leaving, the Respondent Company introduced into evidence a statement signed by Bruce Schulte, addressed to the Michigan Employment Security Commission, to the effect that Gugyela had left the employment of Medical Ancillary Services because she interfered in management decisions which were not in her jurisdiction on several occasions. In contravention of all of the foregoing, the Respondent introduced testimony to the effect that Gugyela, although very intelligent and a very hard worker who was also extremely amibtious, was by the same token extremely emotional. According to Respondent's witnesses, Gugyela had upon numerous occasions threatened to quit. The most recent such occasion being only several weeks before her ultimate leaving the firm. On this occasion Maria Marave- leas had come down to the department upon being called and found Gugyela crying and stating that she would quit because the girls in the department had been too much for her and had complained that they were not permitted to wear pantsuits. When Maria Maraveleas assured Gugyela that the contrary was true and told Gugyela to dry her eyes, Gugyela was persuaded to remain in Respondent's employ. Although the foregoing testimony was elicited for the purpose of showing the propensity of Gugyela to quit whenever presented with a situation of stress, I conclude and find that Gugyela was discharged. As noted above, the testimony of Tilwick with regard to her postdischarge conversation with Peter Maraveleas points to the fact that Maraveleas discharged Gugyela for, among other things, 5 Although on cross-examination Tilwick did not relate this event in exactly the same words, I am convinced that her testimony on direct was the testimony she meant to give and that this was the manner in which the event occurred Tilwick had no reason to be enamored of Gugyela, who had caused her to lose her supervisory position. Moreover, Tilwick's testimony on both direct and cross-examination was given in a forthright and straightforward manner and I was much impressed with both her intelligence and her ability to relate the facts clearly Accordingly, I credit Tilwick over Peter Maraveleas' version of this conversation 6 By reason of the fact that I have already credited Gugyela in other respects, and I have also credited the testimony of Tilwick, I find that his belief that Gugyela was trying to introduce a union into the Respondent's employee complement . Supporting this testimony is Gugyela's credited testimony of her conversa- tion with Rohrmaier to the effect that the Respondent thought that Gugyela was bringing a union into the shop. Although it is entirely probable, and Gugyela's testimony certainly confirms that Peter Maraveleas was more than merely annoyed at the fact that Gugyela had overstepped the bounds of her authority, there is presented the additional reason for her discharge, that Maraveleas thought at the time, and so stated, that Gugyela was trying to bring a union in. Although it is true, as established by the record, that the union activity in the Respondent's shop did not begin until some time in May, some 4 months after Gugyela's discharge, there is no question that there was talk of unionization among the Respondent's employees about the time that Gugyela was discharged. Although Gugyela herself admitted that she was not engaged in any union activity at the time she was let go, the Board has held upon many occasions that where an employee is dis- charged because his employer believes him to be engaged in concerted or union activity, the discharge is violative of the Act whether or not such belief is well founded. The instant case presents just such a situation. Among the reasons for the discharge, as stated by Maraveleas to Gugyela, and by Rohrmaier to Gugyela, and by Marave- leas to Tilwick, was the fact that Maraveleas believed that Gugyela was engaged in union or concerted activity.? Moreover, Gugyela was known as a leader among the Respondent's employees. Thus, approximately a month before her discharge, Gugyela had caused the Respondent, at the behest of her fellow employees in the claims department, to hold a Christmas party in the department rather than in a room adjoining the company cafeteria. Also, in the matter which brought about Gugyela's discharge, she was acting on behalf of the employees in sending them to the Respondent' s personnel director for the purpose of airing their grievance with regard to their promised pay increases. Such activity is concerted and protected. This engaging by Gugyela in protected concert- ed activity brought about her discharge. Accordingly, I find and conclude that Gugyela was discriminatorily discharged in violation of Section 8(a)(1) of the Act. 3. Postdischarge events involving Gugyela Some time after Gugyela's discharge, Peter Maraveleas was informed that Gugyela had called several doctors and Blue Cross and Blue Shield and told them that the Respondent had falsified records and diagnoses, cheating on the fees charged by the Respondent on behalf of the Gugyela's version of the telephone conversation with Rohrmaier is more reliable than the version given by Rohrmaier who denied that there was any mention of union organization in their conversation According to Rohrmaier, she was under the impression at that time that Gugyela had been discharged because Peter Maraveleas had told her that they were nd of the troublemaker but she did not realize that he did not state that Gugyela was discharged and she merely assumed that Gugyela had been discharged not knowing the full account of what had happened. 7 See Ridge Tool Company, 102 NLRB 512, 513, Winkel Motors, Inc, 178 NLRB 627, and Nursing Centers, Inc d/b/a Three Fountains Nursing Center, 184 NLRB No 29 794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD physician to the patients. Maraveleas denied that any such practices ever occurred and that, in fact in the case of one doctor, an audit was made in his account and the account was found to be above reproach. Gugyela, on the other hand, testified that these allegations that she made were true. Nevertheless, in July 1971, Peter Maraveleas, by his own admission, had considered Gugyela for reemployment as a supervisor in a new department that was being set up. This occurred after Gugyela's alleged accusing the Respon- dent of cheating. Thus, it would seem that Maraveleas did not put much stock in the alleged accusations made by Gugyela and had, in effect, condoned her actions. However, according to Maraveleas, when Gugyela was asked to come to the Respondent's facility to make application for the new job, she told the receptionist, "Pete is bringing me back to work now because he figures since he has to pay me back for all the months I did not work, that he might as well get his money back." For this reason Maraveleas refused to consider Gugyela for reemployment. Respondent relies on the foregoing to defend its actions in refusing to reinstate or rehire Gugyela. Evidently the Respondent also contends that because of the foregoing Gugyela would not be eligible for reinstatement or backpay. However, as noted above, Respondent' s action in considering Gugyela for reemployment in July, in effect, constituted a condonation of Gugyela's actions in relaying to customers of the Respondent that the Respondent had been cheating. Moreover, I do not find that Gugyela's statement to the receptionist to the effect that Maraveleas was considering her for reemployment only for the purpose of diminishing any possible backpay constituted sufficient reason to preclude an order of reinstatement and backpay insofar as Gugyela is concerned. Whether or not the statement made by Gugyela was true, it was not so damaging to the Respondent as to constitute sufficient cause to refuse reinstatement to Gugyela. Accordingly, I find and conclude that the Respondent's continued refusal to reinstate or reemploy Gugyela constituted additional violations of Section 8(a)(1) of the Act. The complaint also alleges and counsel for the General Counsel contends that Peter Maraveleas' remark to Tilwick that Gugyela had been discharged and that Gugyela was responsible for the talk about a union coming in had a chilling effect upon employees to the extent that it tended to dissuade employees from engaging in union or concert- ed activities under penalty of discharge. The Respondent argues that this remark could not have been coercive in that the Union won the election held in July. It is concluded that Respondent's argument is without merit. It requires no citation of authority to support the Board's often held conclusion that it is not necessary to show actual adverse effect on employees in such cases if the mere uttering of the remark would have a natural tendency to coerce. It is found in the present instance that Peter Maraveleas' remark to Tilwick had such tendency and it was therefore coercive in violation of Section 8(a)(1) of the Act. C. Impression of Surveillance As heretofore related, the Union began an organizational drive among the Respondent's employees in late May 1971. Thereafter, the first organizational meeting took place around the first part of June. The day after the first meeting, Peter Maraveleas spoke to Gloria Passmore, an employee in the claims department. He told Passmore that he was aware that the employees had started a union and that there was a union movement going on.8 The Respondent contends that this remark by Marave- leas was merely casual and fell far short of a statement that would give any reasonable person the impression that management was checking on union activities or meetings. However, in the context of the other unfair labor practices heretofore found, and hereinafter found, it cannot be concluded that this was a mere casual, isolated incident that could have no effect upon the employee's conclusion that management was checking on their union activities and meetings; Accordingly, I find and conclude that this remark of Maraveleas constituted the impression of surveillance of union activities and meetings and therefore violated Section 8(a)(1) of the Act. D. The Events of July 9, 1971 1. The testimony As heretofore noted, the Board conducted an election among the Respondent's employees on July 8, 1971, which the Union won. On July 9, the Respondent took a number of actions which the General Counsel alleges constitute violations of the Act. Thus, shortly after 9 a.m. on July 9, Peter Maraveleas entered the office of the claims depart- ment and approached the desk of Mary Ann Tavtigian, an evaluator who had been employed by the Respondent for approximately 5 years and who was the union observer at the election and the chief steward of the Union; In an earlier conversation with Maria Maraveleas, Tavtigian had told Maria Maraveleas that she was the chief steward. When Peter Maraveleas came to Tavtigian's desk, he opened it, turned to her, and told her to take everything out of her desk except that which pertained to her work. Peter Maraveleas then approached the desk of Glona Passmore, also a union steward, and gave the latter similar instructions. None of the other employees present were requested to remove articles from their desks. Both Tavtigian and Passmore testified that never before this had they ever been informed of, nor did they have knowledge of, any company rule to the effect that they could not keep personal belongings in their desks. After the foregoing instructions, Peter Maraveleas approached a bulletin board that was on the wall of the room and began to remove personal items from the bulletin board. He even removed a posted vacation schedule. Passmore and Tavtigian testified that the employees had posted personal momentos on this board for a long period of time, in fact they had used this bulletin board before they moved into the building that they occupied at the time of the events herein. According to " From credited testimony of Passmore, which was undenied by Maraveleas in testifying MEDICAL ANCILLARY SERVICES, INC. 795 them, there was no prior occasion when management informed them that they were not to use the bulletin board. Nor were there any similar occasions when anyone from management specifically removed postings from the bulletin board. After removing the items from the bulletin board, Maraveleas left the room but soon came back . This time he approached Tavtigian's desk once again. He opened her desk drawer and observed a deck of playing cards therein. Maraveleas picked up the playing cards and told Tavitigi- an that she could claim them at 4:30 when she left for the day and that there was to be no more of that. Tavtigian testified that she had kept playing cards in her desk for 6 to 8 months before this occasion. However, on cross-examination Tavtigian admitted that she had been warned against playing cards prior to this occasion . Thus, about a week before July 9, Tavtigian was playing solitaire at her desk and Peter Maraveleas told her that there was to be no more of this. This occurred during the morning break . Tavtigian immediately picked up the cards and put them in her drawer and that was the last time she touched them . Moreover, Tavtigian admitted that she had knowledge of the fact that prior to July 9 and upon various occasions Maraveleas did inspect the desks of the employees. She said that she thought he was most likely looking for food. Furthermore, Tavtigian also admitted that Peter Maraveleas had mentioned that he had found knives in some of the employees' desks. However, this occurred the first week in September , long after the July 9 incident. However, Maraveleas did talk numerous times about food in desks prior to July 9. In explaining his actions of that day , Peter Maraveleas did not deny that the events with regard to the cards or the bulletin board occurred . However, he testified, and in this he was supported by his wife, Maria Maraveleas, that on the day of the election , shortly after the election was over, Maria Maraveleas heard a great deal of hubbub at the time the poles closed. She heard voices and sound and became rather apprenhensive . At approximately 4:30 p.m. she heard a blood curdling scream and became quite upset. Subsequent to that, Elizabeth Rohrmaier came into Maria's office and told her the results of the election. Then Maria Maraveleas heard horns honking, looked out and saw some of the employees making fist -like gestures. At that time, rumors were wild in the Company and Maria Maraveleas heard that there might be a strike. Peter Maraveleas testified that when he arrived home from an out-of-town trip on the night of July 8, after the election , these matters were related to him by Maria Maraveleas . He testified that Maria Maraveleas also told him that some of the employees were threatening union members. Because he did not have experience with this type of occurrence, Peter Maraveleas became apprehen- sive. Therefore , that very night he called Elizabeth Rohrmaier at her home and asked her to call two administrators, Walter Punder and Bruce Schulte , and ask them to be on the premises the following morning early for the purpose of observing in the hallway of the department in case there was any difficulty. The next morning Peter Maraveleas arrived at the Respondent's facility about 7 a in. He did so because he was concerned about the safety of some of his employees. After arriving at the office he went to some of the desk drawers and into the storage area and inspected approxi- mately every shelf in the storage area . He did this, according to Maraveleas, because he was concerned that there would be weapons. After that he went to the evaluation area where Passmore and Tavtigian worked and checked their desks. He also removed some articles from the bulletin board. He admitted that he did not inspect anyone else's desk drawers. This was because he assumed that if there was going to be any violence of any type it was going to be primarily concered with Tavtigian and Passmore and would be visited upon these two people. Therefore he was concerned that these two people might have weapons in their desks. However, he admitted he found no weapons. Peter Maraveleas further testified that he had conducted desk searches for some time in the past, as long as a year before the events herein . The reason he had done this was because occasionally food was left by the employees in desk drawers which became rotten and caused bad odors in the working areas. Moreover, at one time, there had been a grudge fight between two of the employees and he had found a knife in one of the desk drawers . In addition, at one time he had found what he thought was narcotics in one of the desk drawers . He felt that inspection was necessary for the safety of the employees and the good of the Respondent . Accordingly, there was nothing novel about the desk search that he made on July 9. However, he admitted, on cross-examination, that he knew who the union leaders were, or who he considered them to be. They were, according to him , Mary Ann Tavtigian and Gloria Passmore and another girl, Alicia Little. However, it is noteworthy that in his testimony Peter Maraveleas did not explain the fact of his removal of the articles from the bulletin board or the reason why he did so. The events of July 9 were not limited to the activities of Peter Maraveleas. On that day, in the early morning, Fran Maiers held a meeting of the people in her department. Maiers instructed the employees that the Union had won the election and said that it was unfortunate because some people did not want it . Then she said "It's time to get back to work and from now on there will be no talking or asking any questions." According to Tavtigian , she meant that there would be no talking between the employees or asking of questions. According to Passmore, Fran Maiers stated that there would be no goofing off and talking among the employees and that if there were any questions to be asked she would relay them to the people whom the employees wanted to talk to. Both Passmore and Tavtigian testified that Maiers also stated that there would be no more getting ready to go home at 4:20 p.m., at which time employees had been getting their desks straightened out; that from now on they had to work until 4:30. Maiers emphasized that cleanup time was to start at 4:30 because they are paid to work from 8 : 30 to 4:30. Both Tavtigian and Passmore stated that they had always been permitted , prior to this, to talk fairly freely among themselves , although there had been repri- mands for excessive talking . Moreover, they both testified that they had always been permitted a period of time 796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD before 4:30 in which to clean up their desks and get ready to leave at 4:30. In testifying, Maiers denied that she told the employees that they had to clean off their desks at 4:30. What she did tell them, was that their working hours were from 8 until 4:30 and that she expected them to work up until that time and that at 4:30 they should not be sitting around waiting for the buzzer to ring. Masers further testified that she told the employees that they were behind in their work in the department and'she felt that because of the unnecessary conversation by both parties during the union campaign and election that the decision had been made that the unnecessary talking should be stopped and the employees should get back to work. She stated that she had held many such meetings before the election and since and that she often reprimand- ed employees both before and after the election for excessive talking. If they were standing around and talking she insisted they go back to their work stations and work. She reprimanded them for talking before the union campaign and she had done the same after the campaign and she had never allowed employees to stop working prior to 4:30. In support of this testimony, Elizabeth Rohrmaier testified that there was a company policy to the effect that employees do not talk to each other during working hours unless it is job related and questions have to be directed to the supervisors but not to the other employees. If there is any excessive talking it is the supervisors' role to step in and stop it. Nor is there any set company policy as to cleanup time. There is no such thing as cleanup time as such. The policy is that an employee has to leave her work station in perfect order. The punching out time is 4:30 and that is quitting time. At approximately 1:30 in the afternoon of July 9, Mary Ann Tavtigian was summoned to the office of Personnel Director Bruce Schulte. She was accompanied by her supervisor, Fran Maiers. When they arrived in Schulte's office, Schulte told Tavtigian that if people were allowed to play cards other people would get the impression that gambling was allowed in the office and it would not be good for the Respondent; that it would be better not to play cards. Schulte had a green sheet with a statement on it saying that Tavtigian agreed not to play cards or have gambling paraphernalia in her possession; and if she did she would be dismissed. Tavtigian had to sign this statement. Thus was Tavtigian placed on probation on that day. Tavtigian testified that prior to July 9 there were no similar cases and she never had to sign anything about playing cards nor was she ever called to Schulte's office concerning playing cards. However she did admit that prior to July 9 there were conversations about the right to play cards. This first occurred about 6 to 8 months prior to July 9. In approximately November 1970, at lunchbreak, instead of going to lunch, Tavtigian and two other girls played pinochle. Sometimes at coffeebreak time they would also play pinochle. Sometimes Peter Maraveleas would joke around about card playing but he did not say too much. He did say, however, that they should not play cards. Once he stopped them from playing cards but he did so in a joking manner . Then, approximately in the beginning of May he told them again that they were not to play cards. However, Tavtigian further testified that before July 9 she was never told she would be discharged if she was caught playing cards or having cards in her desk. Maraveleas also testified that he had talked to Tavtigian at least three times before and advised her to please stop playing cards. On the third occasion he told her she was an older employee and that if younger employees saw her they were apt to gamble away their paychecks. After he took the cards away from Tavtigian on July 9, Peter Maraveleas instructed Schulte to tell Tavtigian that if she brought any gambling paraphernalia into the office she would be terminated. When Gloria Passmore came into the office on the morning of July 9, her timecard was missing and was still missing at lunchtime . Passmore became concerned about it. Then, about 2 o'clock in the company of Fran Maiers, she was called to Bruce Schulte's office. Schulte told her that they were reviewing peoples' records and they were beginning to enforce new rules. Schulte told Passmore he had received the records of tardiness. He told Passmore that she had been late nine times since January 1971. Then, he said, "We are going to enforce some of the things that we have been planning to enforce regarding absenteeism." He showed Passmore a list of the dates that she had been tardy. Passmore stated that it seemed rather peculiar that this would happen the day after the election . Schulte said that he was not picking on her that it had been something they had been trying to enforce for quite some time. Finally, he told Passmore that if she was tardy one more time in the next 60-day period she would be terminated. Passmore was requested to sign a sheet with the records as shown by Shculte which she did. On this sheet was also printed the statement that if she was late within the 60-day period she would be discharged. Passmore testified further that prior to July 9, 1971, she never had been called into Schulte's office concerning her attendance . Never before had she been given a warning or a 60-day notice. However, on cross-examination Shculte did admit that before July 9, Peter Maraveleas spoke to her on a number of occasions about her tardiness. Also on July 9, employee Penny Trammel was placed on probation in much the same manner and for the same reason as was Passmore . Schulte told Passmore that she had been tardy and absent too many times and that she was on probation for 60 days . He told her that if she missed any days during that time she would be dismissed. She signed a paper to this effect . Although Passmore testified that prior to July 9 she had never been told that she would be discharged because of tardiness or lack of attendance , she did admit that other employees were disciplined for being tardy or absent. This was prior to July 9, 1971. She remembered distinctly that her roommate was put on probation the year before that for being tardy. Linda Pawlowski was also placed on probation the day in question for being excessively tardy. She was told by Schulte that if she was late or tardy again she would be fired, Prior to the day in question no one in management had ever advised or warned Pawlowski that she was subject to probation or discharge because of her attendance. MEDICAL ANCILLARY SERVICES, INC. 797 It should be noted that both Tavtigian and Passmore were known union leaders and were both union stewards. Pawlowski and Trammel were active in the Union only to the extent that they attended union meetings and voted in the election. In explaining the placing of these individuals on probation, Peter Maraveleas testified that on July 9 he reviewed the attendance record of people in the depart- ment and found that there was excessive tardiness within the claims department. Therefore, he went to Bruce Schulte, after pulling the cards of the individuals who were excessively tardy, and told Schulte to place these people on notice and tell them that excessive tardiness could no longer be tolerated . Neither Schulte nor Maiers, who were present at the time the employees were placed on probation, testified as to this matter. On that same day, July 9, Rose Ann Bradley, a claims typist, was discharged. July 9 was a Friday but Bradley's payday was not due until the following Thursday. She was discharged at approximately 3:30 p .m. whereas the normal quitting time is 4:30 p.m. She admitted that 3 weeks before July 9 she had been placed on probation at which time she was told that she had to better her production or she would have to leave by June 25 . However, she was not discharged on June 25. Also discharged on that day were employees Susan McIntosh, Sandra Johnson, and` Doris Salimino. The General Counsel offered no testimony as to these three individuals. However, the Respondent proffered considera- ble testimony with regard to the discharges of the four individuals on July 9. In the first instance, Peter Maraveleas testified, without contradiction, that he usually reviews production records on Friday, and July 9 was a Friday; On that day, he checked the production records and found that two major departmenst of the Company were at their lowest possible point. The keypunch department was especially bad, being 20 days behind schedule . This was detrimental to the Respondent, since the Respondent's work is seasonal to a certain extent and primarily reaches its peak during the summer months. This is so because schools are closed and the volume of the emergency departments at the hospitals begins to accelerate at the beginning of July. This fluctuating demand naturally effects the workload of the Respondent which services these hospital emergency rooms. After reviewing the production records, Maraveleas spoke to Elizabeth Rohrmaier , vice president in charge of production, and told her that if they continued to get far behind during the summer months it would be difficult to catch up. The Company could not stay in business, as they would begin to lose clients. He told her to summarize the records of the week and that anybody who did not meet the average production of their department was going to be let go and they would have to find people who would be able to do the jobs . Maraveleas did not instruct Rohrmaier to discharge any particular individual. Rohrmaier's testimony shows that Rose Ann Bradley was employed on April 26, 1971, as a probationary employee for the probationary period of 90 days. The work performance of Bradley was constantly below standard and she was periodically informed of this . This first time was on May 13, the second on June 2 . Respondent's records, which support the testimony of Rohrmaier, show that Rose Ann Bradley was consistently below the level for medical typist trainees, the classification for which she was being trained . Then, on June 17, Rose Ann Bradley was put on probation . However, she had slightly improved after that so that she was not terminated on June 25 . Though Bradley was still below standard on June 25 , when it came time to decide what to do about her, it was decided to give Bradley another chance because she had improved to a certain extent. The person who was training the typists was Norma Harvey, who was leaving the Respondent 's employ, and did leave the Respondent's employ on July 9 . It was on that day, or the day before , that Harvey gave the employees a final test . In the final test, the lowest grade for passing was 10 mistakes . However, Rose Ann Bradley had made 15 mistakes. The next lowest was 10 . Therefore, on July 9, according to the instructions given to her by Peter Maraveleas, Rohrmaier discharged Bradley . Rohrmaier was satisfied at that time that Bradley would not be able to comply with the Respondent's requirements and standards for production. Rohrmaier further established in her testimony that Doris Salimino took a test prior to her being hired as a keypunch operator. The determination of this test is how many cards can be punched in a 10-minute interval and Salimino did exceptionally well. However , Salimino's record on July 9 showed that her hourly production averaged only 2,700 to 2,800 strokes per hour whereas the standard is 9,000 strokes per hour. Moreover, the average in the Respondent's keypunch department is between 10,000 and 11,000 strokes per hour . Therefore, Salimmo's average was not quite 1 /3 of the standard used in the Respondent's establishment. Moreover, during her short period of employment with Respondent, Salimino was absent once and tardy five times. Sandra Johnson was hired on May 12, 1971, as a trainee keypunch operator. In the case of a trainee, Respondent gives the trainee approximately 5 or 6 weeks to become a proficient operator who could meet the standard of 9,000 strokes per hour. Sandra Johnson's 90-day probationary period was up 90 days after May 12 but she was consistently below standard and showed no significant improvement. Her average was between 5.5 and 6.6 thousand strokes per hour . On the day of her termination, her average was only 5,000 compared to a standard of 9,000. Moreover, her attendance record was also bad. During the time of her employment , she was absent four times and tardy three times. On June 14, 1971, Susan McIntosh was employed as an experienced keypunch operator who had had in excess of 5 years of experience . As she was experienced, McIntosh was expected to have rapid advancement, but she also was consistently below the average of 9,000 strokes per hour. As a matter of fact, her average never exceeded 6,000 strokes per hour. But, her salary was also higher than the rest of the other employees because of her previous experience. Therefore, upon reviewing her record, it was decided to discharge McIntosh. 798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Rohrmaier further stated that these three keypunch operators produced, between them, what one average keypunch operator in the Respondent's department pro- duced. This influenced Rohrmaier in making her decision to discharge these three individuals. 2. Concluding findings as to the events of July 9 Maiers' prefacing remarks at her meeting with her department employees on July 9 to the effect that it was too bad that the Union was voted in9 set the keynote for that meeting. It was in the context of this statement that Maiers informed her department that there was to be no more talking and that there was to be no special cleanup time and that the workday did not end until 4:30. In testifying, Maters did not deny the testimony of Tavtigian that in May or June 1971 Maters told the employees that they were allowed 5 or 10 minutes before the 4:30 quitting time to clean up their desks as long as they did not sit around idly. However, she did deny that she told them that they could not clean up their desks before 4 : 30. But, Tavtigian testified credibly that the import of Maiers' instruction on July 9 was that they were not to clean up until after the buzzer sounded at 4:30. Since they could not punch out until the cleanup was completed , the result was that they had to clean up in the 5 or 10 minutes after 4:30 for which they were not paid overtime. This, then, was a change in working conditions. The same conclusion is reached with regard to the no-talking instructions. While it may well be that before July 9 Maiers had had to warn the employees about excessive talking, talking as such, which did not prevent employees from doing their work, was not prohibited. However, the instruction of Maiers on July 9 indicated that all talking was interdicted . Therefore, it is concluded that this constituted a change in working conditions. A like conclusion is reached with regard to the removal of the material from the bulletin board and the denial of its use to the employees by Peter Maraveleas. With regard to this incident, the Respondent offered no testimony or other evidence to disprove that the event took place or to explain the reason therefore. We come now to the placing on probation of employees Tavtigian, Passmore, Trammel, and Pawlowski. As Res- pondent has asserted, Tavtigian was warned upon a number of occasions prior to July 9 not to play cards. However, she was not warned that she could not have personal items in her desk . With regard to Passmore, Trammel, and Pawlowski, each of these employees had undoubtedly been somewhat lax in reporting on time for their workdays in the past. However, not one of these four employees had ever before been on probation for their faults. Nor had they ever been warned that they would be put on probation . I note also that so far as Tavtigian and Passmore were concerned, they were the two leading union advocates in the Respondent's employ and, moreover, Tavtigian had acted at the poles in the election held the previous day. Thus, the placing of these employees on probation came at a time immediately after the Union had won the election and two of the • four employees were known union adherents. The events of July 9 cannot be regarded in a vacuum, nor can they be considered as individual , isolated inci- dents. Although Peter Maraveleas, as president of the Respondent, did not in the preelection period express unyielding opposition to the Union , it should be noted that earlier in the year, in the case of Isabel Gugyela, Maraveleas instituted her discharge for the reason that he thought that she was involved in union activity . Further- more, I note that in early June Maraveleas again expressed the fact that he knew his employees were engaging in union activity. Thus, there is demonstrated hostility which, I find, did effect Maraveleas' judgment on July 9. While it is entirely possible that Maraveleas was concerned on July 9 with the conditions that prevailed in his facility and it is also possible that the claim that production had fallen behind and that the summer months were the busiest is quite true, I nevertheless believe that when all of the foregoing factors are considered together, the conclusion must be reached that these foregoing activities were taken for discriminatory reasons. In coming to this conclusion, I have considered as vital the fact that all of these events took place suddenly and without warning the day after Maraveleas learned that the Union had won the election. Furthermore, there was an admission in the record that on no prior occasion had four employees from the same department been placed on probation on the same day. Thirdly, as mentioned above, both Tavtigian and Passmore were known, strong union adherents. Accordingly, I conclude and find that the change in cleanup time, the change in the no-talking rule, the refusal of the use of the bulletin board, and the placing of the four above employees on probation constituted discriminatory acts undertaken to discourage membership in and activity on behalf of the Union. Such action is violative of Section 8(a)(1) and (3) of the Act. There remains for consideration the discharges of Bradley, McIntosh, Johnson, and Salimino. In each instance, the Respondent, through Vice President Rohrm- ater, was able to give ample explanation of the reasons for the discharge. Each one of these employees failed to come up to the work standards set by the Respondent. Furthermore, it was shown, without contradiction, that Harvey, the instructor of the class teaching the medical typists, left Respondent's employ on July 9 and that Rose Ann Bradley did not pass the final examination. This would explain why July 9 was chosen as the date of Bradley's discharge . With regard to the other three , there is no contravening evidence or testimony by the General Counsel to show that any of these employees did, in fact, meet the standards set by the Respondent. Rohrmaier's testimony was unqualified and uncontradicted on the record. While there may be some suspicion with regard to these discharges because of their timing and the fact that Respondent committed other unfair labor practices on the same day, it is nevertheless concluded that the General Counsel has failed to prove by a preponderance of the evidence that the discharges of Bradley, McIntosh, Johnson, and Salimino were discriminatory rather than for 9 In her testimony , Maters did not deny this remark MEDICAL ANCILLARY SERVICES, INC. cause. Accordingly, I shall order dismissed this allegation of the complaint. However, I do not accept Peter Maraveleas' explanation as to the reasons for his searching the desks of Passmore and Tavtigian on July 9. In the context of the other unfair labor practices which occurred on July 9 and in view of the fact that both Passmore and Tavtigian were the two union leaders in the shop, I find and conclude that the purpose of Maraveleas' search of their desks was to discover any prounion material that they might have harbored. It is concluded that this was part and parcel of a retaliatory action taken by Maraveleas in order to discourage the employees from engaging in union activity and was therefore violative of Section 8(a)(1) of the Act. In coming to this conclusion I have considered the fact that the record establishes inspection of desks by Maraveleas in the past for items such as food , drugs, and weapons. I have also taken into consideration the testimony of Peter Maraveleas and Maria Maraveleas to the effect that they were concerned about the safety of their employees and especially with regard to Tavtigian and Passmore as union leaders. Nevertheless, I have concluded that the natural consequence of Maraveleas' act was to have a coercive effect upon the employees and interfered with their Section 7 rights. E. The September 1971 Incident to At a meeting of the employees and management held sometime in August 1971, Peter Maraveleas told the employees, among other things, that he expected perfect attendance and no tardiness. He also told them that if they had any suggestions that they were to put them in a suggestion box. He also spoke about the effect of the President's Phase I wage freeze. Then he made some derogatory remarks about some of the evaluators with regard to their being overweight. He then went on to talk about the union business agent, Thelma O'Dell, and made the remark that "her mouth was as big as her ass." Among the employees attending this meeting was Marlene Struckman, a medical typist. After the meeting, Struckman and other employees from her department met and decided that they resented the personal remarks made by Maraveleas concerning the size and weight of some of the employees and of the union business agent. Therefore, a letter was typed up addressed to Maraveleas stating that the employees felt that, since the union meetings were voluntary, the meetings of the employees should also be voluntary and that they did not like malicious talk about their fellow employees. Struckman was among the employ- ees who signed this letter which was placed in a suggestion box. Some weeks later the employees who signed the letter were called to meet Peter Maraveleas. Maraveleas told the employees that he had read the letter and asked the employees what they thought "malicious" meant. The employees answered that they thought it meant talking about employees the way he did and talking about their 10 The allegation as to this event is contained in par . 8(d) of the complaint which was added to the complaint by amendment by counsel for the General Counsel at the hearing herein. 11 All of the foregoing from the credited testimony of Struckman which 799 weight. He told them that the meetings were held on company time; that they were being paid for them; and that they were obliged to attend.'1 Sometime in late September , Struckman was called for an interview with Maria Maraveleas, executive vice president of the Respondent . Maria Maraveleas showed Struckman her evaluation sheet , how it was made up, and how they computed it. Maraveleas went over Struckman's report and showed the latter where she had made her mistakes. Mrs. Maraveleas then reviewed the quantity and quality of Struckman's work and told her that she had above average in initiative. Mrs. Maraveleas said, however, that she was very disappointed in Struckman as she saw Struckman's name on the letter to Peter Maraveleas. When Struckman explained why she had signed the letter, Maria Maraveleas repeated that she was very disappointed that Struckman had signed the letter . She then went on to tell Struckman that she thought Struckman 's attitude had been above average but now she would only have to rate her as average. Struckman admitted on cross -examination that her conversation with Maria Maraveleas was not a merit review conference and that no action was taken on her at that time. However, she reiterated on cross-examination that Maria Maraveleas told her that until that time she thought Struckman's attitude had been above average but now because of the letter she would have to rate her as average and that she was disappointed in Struckman. Maria Maraveleas testified that she went on to explain to Struckman that they were not reviewing Struckman for an isolated incident. Maria Maraveleas further testified that Struckman has not been reclassified because of the incident. It is concluded that the action of Struckman and her fellow employees in drafting the letter of protest to management was concerted and protected activity within the meaning of the Act. It was in response to Peter Maraveleas' demonstrated hostility to union leaders, to employees, and to union representatives . The natural and probable consequence of Maria Maraveleas' statements to Struckman concerning her activity was to reasonably lead Struckman to believe that she had or would have been penalized because of her protected and concerted activi- ties. In analagous situations the Board has found a violation where an employer by its agents has penalized or led employees to believe they had been penalized in regard to their employment status for engaging in activities protected by the Act.12 Here Maria Maraveleas definitely stated to Struckman that she would down rate her as being only average instead of above average in attitude. Accordingly, I find and conclude that the Respondent's actions were violative of Section 8(a)(1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent, set forth in section III, above, occurring in connection with the operations of the was not controverted by the testimony of any of the Respondent's witnesses. 12 See National Springs Corporation, 160 NLRB 148; Brown & Root- Northrop, 177 NLRB I. 800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent set forth in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It having been found that Respondent has engaged in activities constituting interference, coercion, and restraint within the meaning of Section 8(a)(1) of the Act, it will be recommended that Respondent cease and desist therefrom and from any like or related conduct. It having been further found that the Respondent has engaged in discriminatory activity within the meaning of Section 8(a)(3) of the Act, it will be recommended that Respondent cease and desist therefrom and from any similar conduct. It having been found that Respondent has discriminator- ily discharged Isabel Gugyela, I shall recommend that Respondent offer said employee immediate and full reinstatement to her former or substantially equivalent position, without prejudice to her seniority or other rights and privileges. In addition, I shall recommend that the Respondent make her whole for any loss of earnings she may have suffered by reason of the discrimination against her by payment to her of a sum of money equal to that which she would normally have earned from the date of her discharge, less net earnings during said period. Backpay shall be computed with interest on a quarterly basis in the manner described by the Board in F. W. Woolworth Company, 90 NLRB 289, 291-295, and Isis Plumbing & Heating Co., 136 NLRB 716. Upon the basis of the above findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By interfering with, restraining, and coercing em- ployees in the exercise of their rights guaranteed in Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. By discriminatorily changing employees' working conditions, the Respondent has engaged in conduct violative of Section 8(a)(3) and (1) of the Act. 5. By discharging employee Isabel Gugyela and there- by interfering with her Section 7 rights, Respondent has violated Section 8(a)(1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 7. By the discharge of employees Rose Ann Bradley, Susan McIntosh, Sandra Johnson, and Doris Salimino, the Respondent has not engaged in activities violative of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 13 ORDER Respondent, Medical Ancillary Services, Inc., its offi- cers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Telling its employees that it has discharged any employee for engaging in union or protected concerted activity. (b) Creating the impression of engaging in surveillance of employees' union activities. (c) Engaging in surveillance of its employees' union activities by requiring employees to show the contents of their work desks. (d) Advising its employees that it would give them a lesser performance rating for engaging in union or protected concerted activities. (e) Discharging or in any other manner discriminating against employees because of their concerted activities for the purpose of mutual aid or protection. (f) Discouraging membership in Office and Professional Employees International Union, Local 10, AFL-CIO, or any other labor organization, by changing employee conditions of employment or by placing its employees on probation or otherwise discriminating against employees in regard to their hire or tenure of employment or any term or condition of employment. (g) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to form, join, assist, or be represented by the aforesaid Union, or any other labor organization, to bargain collectively through representatives of their own choosing, or to engage in other concerted activity for the purpose of collective bargaining, or other mutual aid or protection, or to refrain from any or all such activity. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer Isabel Gugyela immediate and full reinstate- ment to her former or substantially equivalent position, without prejudice to her seniority or other rights and privileges enjoyed, and make her whole for any loss of earnings she may have suffered by reason of the discnmi- nation against her in the manner set forth in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, and all other reports necessary to analyze the amount of backpay due under this recommended Order. 13 In the event no exceptions are filed as provided by Sec 102 46 of the 102 48 of the Rules and Regulations. be adopted by the Board and become Rules and Regulations of the National Labor Relations Board, the findings, its findings, conclusions, and Order, and all objections thereto shall be conclusions, and recommended Order herein shall, as provided in Sec deemed waived for all purposes MEDICAL ANCILLARY SERVICES, INC. 801 (c) Post at its facility in Troy, Michigan, copies of the attached notice marked "Appendix." 14 Copies of said notice, on forms provided by the Regional Director for Region 7, after being duly signed by the Respondent's representative, shall be posted by the Respondent immedi- ately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places , includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that said notices are not altered, defaced, or covered by any other material. No other material relevant to this matter shall be posted during this period. (d) Notify the Regional Director for Region 7, in writing, within 20 days from the receipt of this Decision, what steps the Respondent has taken to comply herewith.15 IT IS FURTHER ORDERED that the complaint be dismissed insofar as it alleges violations of the Act not specifically found herein. 14 In the event that the Board's Order is enforced by a Judgment of a 15 In the event that this recommended Order is adopted by the Board United States Court of Appeals, the words in the notice reading "Posted by after exceptions have been filed , this provision shall be modified to read: Order of the National Labor Relations Board" shall read "Posted Pursuant "Notify the Regional Director for Region 7, in writing, within 10 days from to a Judgment of the United States Court of Appeals Enforcing an Order of the date of this Order, what steps the Respondent has taken to comply the National Labor Relations Board ." herewith."