Detroit Industrial Clinic, P. C.

516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Detroit Industrial Clinic, P. C. and International Un- ion, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW). Case 7- CA-9172 October 6, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On June 12, 1972, Administrative Law Judge' Jo- sephine H. Klein issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions, with exhibits attached thereto, and a supporting state- ment. The General Counsel filed a brief in support of the Decision and a motion to strike exhibit "A" at- tached to Respondent's exceptions. 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 attached Decision in light of the exceptions and briefs and has decided to affirm 2 the rulings, findings,3 and conclusions of the Administrative Law Judge and to adopt her recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Detroit Industrial Clinic, P. C., Warren, Michigan, its officers, agents, succes- sors, and assigns, shall take the action set forth in the said recommended Order. ' The title of "Trial Examiner" was changed to "Administrative Law Judge" effective August 19, 1972. 2 The General Counsel's motion to strike Respondent's exhibit "A," at- tached to Respondent's exceptions, is hereby granted . The tendered material was not offered at the hearing and was neither newly discovered nor previ- ously unavailable. 3 While we agree with the contention that it was not incumbent on Re- spondent to show the date of receipt of the union demand letter , we need not decide whether the language used by the Administrative Law Judge imposes such a burden. Instead, we find that all the circumstances surrounding Post's discharge amply support the finding that Respondent knew of her union activity. In addition to the factors relied on by the Administrative Law Judge, the inference of knowledge is supported by the unusual circumstances at- tending the meeting of employees called by Alexander immediately after Post's discharge. Thus, at this meeting, Alexander took the unprecedented step of discussing the Post discharge and describing her as a "troublemaker," which, on this record, could only have referred to her union activities. In addition, he informed employees that if they were dissatisfied they could leave, hence, Alexander was offering the same alternative as he subsequently expressed on November 28 upon discovering that Ann Alexander had signed an authorization card. We note further that Alexander also claimed to have had no knowledge of union activity on November 28 despite the clear evi- dence to the contrary. In addition, at the meeting, Alexander stressed the benefits enjoyed by employees and indicated that additional benefits would be forthcoming. The very nature of these statements, against the total circum- stances, compels the conclusion that this meeting was an attempt , under, veiled conditions, to hold out the Post discharge as an object lesson and to further combat known union activity with the type of propaganda often used by employers to neutralize a threat of unionization . Therefore, this meeting called suddenly on the heels of the Post discharge and 2 days after she secured signed authorization cards from all unit employees, as well as Super- visor Burroughs, itself strongly suggests that Respondent assembled the em- ployees with and in reaction to knowledge of the union activity in which Post was the principal employee organizer. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JOSEPHINE H. KLEIN, Trial Examiner : This case was tried in Detroit, Michigan, on March 20, 1972, on a complaint' issued against Detroit Industrail Clinic, P. C.,' on January 21, 1972, pursuant to a charge filed on December 17, 1971,1' by International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW) (the Union). The complaint alleges that Respondent, through A. E. Alexander, its administrator, coercively inter- rogated employees concerning their union activities and threatened discharge of employees for union activities or support, in contravention of Section 8(a)(1) of the Act ,2 and discharged employee Virginia Post on November 24 for her union activities, in violation of Section 8(a)(3) and (1). All parties were afforded full opportunity to be heard, to present oral and written evidence, and to examine and cross-examine witnesses. The parties waived oral argument and since the hearing a brief has been filed on behalf of the General Counsel. Upon the entire record, observation of the witnesses, and consideration of the General Counsel's brief, the Trial Examiner makes the following: FINDINGS OF FACT I PRELIMINARY FINDINGS A. Respondent, a Michigan professional corporation, with its principal office and place of business in Warren, Michigan, operates medical clinics for profit in Detroit (West Clinic) and Warren (East Clinic), Michigan. East Clinic is the only facility here involved. During the fiscal year ended October 31, 1971, a representative period, Re- spondent, in the course and conduct of its business, had a gross revenue in excess of $500,000 and purchased and caused' to be transported and delivered to its East Clinic 'Respondent's name appears here as amended at the hearing. 1 Except where otherwise stated, all dates herein are in 1971. 2 National Labor Relations Act, as amended (61 Stat. 136, 73 Stat. 519, 29 U.S.C. Sec. 151, et seq.). 199 NLRB No. 67 DETROIT INDUSTRIAL CLINIC, P. C. 517 drugs, medical supplies, and other goods and materials val- ued in excess of $50,000, which were received from other enterprises in Michigan which had received them directly from points outside Michigan. Respondent is now and has been at all times material herein an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. B. The Union is and has been at all times material herein a labor organization within the meaning of Section 2(5) of the Act. II. THE UNFAIR LABOR PRACTICES A. Background and Chronology Approximately 20 people work at Respondent's East Clinic in Warren, Michigan. Of these, about six are clerical employees: two medical transcriptionists (stenopool), two receptionists (front desk), a computer operator, and a spe- cial appointments secretary.3 Virginia Post was hired in March 1970 as a medical transcriptionist, working in the stenopool . Like most of the other clerical employees, she was also given instruction in handling the front desk so she could perform relief service as a receptionist when necessary. Around November 1970, because of her excellent performance , A. E. Alexander, ad- ministrator, promoted Post to the position of appointments secretary, whose main duty is to schedule appointments with the clinic's doctors for medical examinations and treat- ment. Arrangements therefor are generally made by tele- phone with employers, insurance company representatives, or patients. Post remained as appointments secretary until around the middle of August, when, after substituting for a receptionist who was out sick for a week or two, she re- turned to the stenopool, with no change in salary. Sometime early in October, Post, at the suggestion of a newly hired employee, spoke to the other clerical employ- ees about the possibility of unionizing. By informal designa- tion by her coworkers, Post undertook to make contact with a union. The first union she approached neglected her re- quest. Accordingly, after speaking with the other employees again, she got in touch with the present Union. On Novem- ber 22, on her lunch hour, Post went to the union office and obtained authorization cards. She then returned to the clinic where she distributed the cards to the other employees. Eight people, including Burroughs, then signed cards. Most of the cards were signed in the laboratory area, where the administrator's and assistant administrator's offices were 3 The list stated herein is based on the evidence in the present case. On March 7, 1972, the Regional Director, in directing an election, after a hear- mg, found that : "There are six clerical employees employed at the East Clinic, including two stenographers, one clerk, and one purchasing secre- tary." Case 7-RC-10908. In the representation case, Marion Burroughs, head of stenopool, was held to be a supervisor. The computer operator was held to be a clerical rather than a technical employee. Other office or secretarial employees, such as the administrator's secretary, have apparently been ex- cluded from the bargaining unit, presumably as confidential or managerial employees. then located and where all personnel, including doctors, technicians, and administrative personnel, frequently vis- ited or spent time. At noontime on November 23 Post re- turned the signed cards to the union office. On the afternoon of November 24, the day before Thanksgiving Day, Post was called into Alexander's office, where, with Assistant Administrator Joanne Biscorner present, Alexander discharged Post forthwith, giving her a check for salary through the end of the next week. Alexan- der said that Post was being fired, in effect, because of her poor attitude, as evidenced most recently by a complaint which Alexander had overheard her making to another em- ployee that day. (The reason for the discharge is discussed at length below.) About 4:30 or 4:45 p.m., after having fired Post, Alex- ander called a meeting of the clerical employees. Despite Alexander's vague testimony that employee meetings are not unusual,4 Burroughs credibly testified that the only such prior meeting she could recall was in May 1970, shortly after her employment began. Post could not recall any such em- ployee meetings. At the employee meeting, Alexander said that he had reluctantly discharged Post because she was a troublemaker and he would not tolerate dissension within the clinic staff. According to Burroughs, a totally creditable witness, Alex- ander told the employees that his door was always open to them if they had problems. He added that if the employees were not satisfied they "could leave." According to Bur- roughs, the clerical employees, including Post, all got along very well together, the only source of "dissension" at the clinic being Assistant Administrator Sloan, who apparently was almost uniformly disliked. As set forth below, Alexan- der shared the employees' opinion of Sloan and discharged him very shortly thereafter. As Burroughs recalled, at the November 24 employee meeting Alexander referred to the clinic's employee benefits and indicated that he was at- tempting to provide hospitalization benefits. He also made some reference to possible wage increases and the existing wage freeze .5 B. Section 8(a)(1) Ann Alexander, wife of Ronald L. Alexander, A. E. Alexander's nephew, is employed by Respondent as a com- 4 Alexander testified: Q How often do you have meetings of employees? A. Frequently as is needed. Q When was the last one, prior to November 24th? A. A month prior to that I was away from the clinic a good portion of the time. I attempted to set up a number of meetings as teaching aids to the employees, and so over the past year or more meetings with the employees have been on a requested basis by the employee for the most part. The complaint does not allege any violations based on the employee meeting of November 24. The evidence concerning it, however, is relevant as part of the surrounding circumstances. 518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD puter operator. On November 28, Alexander telephoned the young Alexanders' home and spoke to Ronald. Alexander, Sr., asked Ronald about Ann's having signed a petition or some other paper for the Union. Ronald called to Ann in the next room to inquire what she had signed. Ronald then relayed to A. E. Alexander Ann's statement that she had simply signed a "card" indicating that she was interested and wanted to learn more about the Union. Alexander then said, and several times repeated, that if Ann was not happy working at the clinic Alexander would be happy to help her find another job. Each time Alexander made such a state- ment Ronald asked if Alexander was in effect saying that Ann was being or was about to be fired. Each time Alexan- der replied in the negative but persisted in volunteering to help her find employment elsewhere if she was unhappy working for Respondent. Alexander generally corroborated Ronald's and Ann's testimony as to the substance of the telephone conversation but attempted to minimize it as a "family aside" which he initiated because he was "dis- mayed" upon learning that the employees were interested in a union. Although Alexander was vague as to the date of this telephone conversation,6 other evidence conclusively places it as about 9:30 a.m. on Sunday, November 28. Ann and Ronald had gone to Iowa over the Thanksgiving holiday and the telephone call was received upon their return. Ann recalled having returned from Iowa around November 30. On the Monday after her return, Ann and other employees were interviewed individually by A. E. Alexander. Bur- roughs, supervisor of the stenopool, and employee Carol Koth dated these interviews on Monday and Tuesday, No- vember 29 and 30. Since it is undisputed that the telephone conversation occurred on a Sunday evening, there can be no question that it was on November 28 .1 Burroughs, Koth, and Ann Alexander testified that on the Monday or Tuesday after Thanksgiving Day (i.e., No- vember 29 or 30) each employee was called into Alexander's office. Alexander conceded that he had talked to several of the employees but denied that he had spoken to all of them and he said that the interviews had been held at the employ- ees' requests,8 apparently following his statements in the general employee meeting of November 24 to the effect that his "door was always open" to employees who had prob- lems or complaints. Burroughs particularly impressed the Trial Examiner as a thoroughly honest, conscientious, and reliable witness. Although she is a personal friend of Post, by whom she was initially recommended for her job with Respondent, Burroughs was clearly an impartial witness intent on nothing other than to testify factually, to the best 6 The General Counsel apparently infers from Alexander 's testimony that he placed the conversation on December 5 However , as noted below, that is not a necessary inference from Alexander's testimony. 7 When Ronald's memory failed at the hearing, the pretrial affidavit he had given to a Board agent on January 3, 1972, was received in evidence That affidavit unequivocally times the conversation as sometime after 9 p in on Sunday, November 28 8 Alexander testified: Q. Did you on that Monday meet with all of the employees? A. I did not. Q. Did you meet with Mrs Alexander on that Monday? A. Yes, I did. Q. Did you meet with any other employees? A Yes I did, a young lady by the name of Jean Adkins Q. Any others? of her recollection, which was generally very good. Al- though Ann Alexander appeared somewhat reluctant to tes- tify 9 and her recollection was somewhat less sharp than Burroughs', she obviously testified truthfully, with no at- tempt to strain or color her testimony. Koth was a most reluctant witness, attempting to avoid providing testimony against Respondent.1° However, what testimony she did! give appears to have been generally honest and reliable. Ann testified that on Monday, November 29, she was called into the office, where Alexander asked her if she was happy at the clinic or if she had any problems. As he had the night before in speaking to her husband, the elder Alex- ander volunteered to help Ann find another job if she was discontented at the clinic. According to Koth, she was called into the office, where Alexander said that he thought Koth "didn't like working at the clinic, and if [she] didn't like working there it would be better for [her] and for everyone else if [she] didn't. If [she] would find another job. Because [she] would be making it harder on everyone else if [she] didn't like [her] lob." In this interview Alexander also asked Koth "what type of card [she] had signed or if [she] has signed one." Although Koth denied that the word "union" was used, there can be no doubt that the "card" referred to was her union authorization. Alexander himself testified that the occasion for his having asked about Ann's "signing" some- thing was his "dismay" at learning that the employees were interested in a union. Alexander never specifically denied having asked Koth about her card. Nor did he deny having told Koth and Ann that he thought they were unhappy working at the clinic and should probably obtain other employment. Indeed , as here- tofore shown, Alexander affirmatively testified to having volunteered his assistance in securing other employment for Ann. Although the evidence does show that Koth and Ann, as well as other employees, complained about Mr. Sloan, who was then assistant administrator, the record as a whole shows that this fact was not the basis of Alexander's "sug- gestion" that they seek other employment. On the contrary, Alexander found the employees' complaints about Sloan justified and Sloan was discharged." Thus, it is clear that A Possibly. I don't know I don't remember how many of the employees requested to see me. 9 Post credibly testified that in the employees ' initial discussions concern- mg possible unionisation , Alexander had "said she would be afraid to go [to the Union] because she was related to Mr Alexander. She didn't want him to think that she was involved in picking up the cards." 10 Alexander had in effect threatened Koth with discharge on November 29 or 30. On February 21, 1972, between the time she gave a statement to a Board agent and the time of the present hearing , she had written to the Board requesting return of her union authorization . Although the General Counsel called Koth as his witness, he was eventually permitted to cross- examine her as a hostile witness. "Alexander testified as follows concerning Sloan: Mr Sloan was separated with thirty days notice dating back to somewhere in the week immediately following Thanksgiving. I told him it had been brought to my attention from a number of employees that he had in fact instituted a number of controls that were not to my liking and they were not at my direction They were without my knowledge and I objected to them and my investigation revealed that he in fact had been exceeding his authority in certain areas as far as the employees were concerned. Biscorner testified that she replaced Sloan on December 20 DETROIT INDUSTRIAL CLINIC, P. C. 519 complaints about Sloan were not the occasion for Alexander's suggestion that the employees leave Respondent's employ if they were "unhappy." The sugges- tion could have been related only to the "unhappiness" reflected in the union activities. Thus, Alexander's sugges- tion, particularly when accompanied by questions concern- ing the signing of union authorization cards, could be reasonably interpreted only as giving the employees the alternative of dropping the Union or terminating their em- ployment.12 That message was particularly clear against the backdrop of the discharge of Post, the union leader. Alexander's statements were clearly violative of Section 8(a)(1), as were his questions concerning the signing of un- ion authorization cards. C. The Discharge of Virginia Post As previously set forth, Post was summarily discharged late in the afternoon of November 24, 2 days after she solicited union authorization cards from all her clerical co- workers and the day after she delivered the executed cards to the Union. Respondent maintains that Alexander, who was solely responsible for the discharge, had no knowledge of any union activities until after Post's discharge. The General Counsel's witnesses, including Post, frankly conceded that they had no direct evidence that Al- exander knew of the union activities. Upon the advice of the Union, transmitted by Post, the employees attempted to keep the matter confidential until the cards were signed and delivered to the Union. However, the solicitation took place at the clinic, most of it in the lab area, where Alexander's office was located at the time and where all personnel fre- quently visited. As shown above, Alexander knew of the activity on Sunday, November 28. He must, therefore, have obtained the information at least by Friday, the day after Thanksgiv- ing Day. Alexander could have obtained the information by observing and/or overhearing Post's conduct. Burroughs credibly testified that the organizational activities were dis- cussed quite frequently-possibly two or three times a week-during October and November, reaching their peak apparently at the time the cards were signed. Post suspected, though she conceded she could not "prove," that employee Margery Griffith was the source of Alexander's information. Post testified, without contra- diction, that the employees "excluded Marge Griffith" from their initial discussions of the possibility of unionization. But on November 22 Post successfully solicited signed cards from all the clerical employees, including Griffith. Post's suspicion that Griffith may have informed Alexander of the activities takes on considerable plausibility by subsequent events, particularly Alexander's contention that the precip- itating cause of Post's discharge was a complaint he had overheard Post make to Griffith on the morning of Novem- ber 24. Both Post and Burroughs denied that any such inci- dent had occurred. Griffith did not testify. Alexander 12 Ronald had reasonably understood Alexander's offer to help Ann find other employment as an imminent threat of discharge. testified that he questioned Griffith about the matter but he made no attempt to obtain Post's version. He testified that he had not questioned Post because he did not care whether the complaints she allegedly had made to Griffith were warranted or not. Absent any explanation, the one-sided investigation and apparent favoritism shown Griffith are at least consistent with Griffith's suspected role as an inform- er. Alexander maintained that he first learned of any un- ion activities through receipt of the Union's recognition demand. He recalled that as having occurred "after Thanksgiving," around the end of November, and "a few short days" before he received the representation petition, which the record shows was filed on December 7. There is no evidence as to the precise date the demand letter was sent or received. Since the authorization cards were delivered to the Union in Detroit around noon on Tuesday, November 23, it is possible that a recognition demand could have been received at the clinic, in the Detroit metropolitan area, the next day, at the end of which Post was fired. Thus, it is possible that both Post's suspicion of Griffith and Alexander's claim that he first learned of the union activities through the demand for recognition were essen- tially valid. The only significant point which cannot fit into this picture is Alexander's contention that the demand letter was received after Thanksgiving. There was only 1 working day (Friday, November 26) between Post's discharge (on November 24) and the time that Alexander is clearly shown to have known of the union activities (November 28). With the date of Alexander's acquiring knowledge manifestly crucial, one would reasonably expect Respondent to pro- duce the letter and/or other evidence as to the time of its receipt. Alexander's vague and uncorroborated testimony is insufficient to establish that the Union's recognition de- mand was received on November 26.13 Thus, while there is no direct, affirmative evidence that Alexander knew of Post's leadership of the union organiza- tional activity at the time he discharged her, there is no credited evidence tending to establish the absence of knowl- edge. Alexander's testimony concerning his state of mind is not conclusive. Shattuck Denn Mining Corp. v. N.L.R.B., 362 F.2d 466, 470 (C.A. 9). Accordingly, the question of the Company's knowledge must be determined from all the surrounding circumstances. A. J. Krajewski Manufacturing Co., Inc. v. N.L.R.B., 413 F.2d 673, 676 (C.A. 1); Sterling Aluminum Co. v. N.LR.B., 391 F.2d 713, 722 (C.A. 8). The timing of the unheralded discharge is itself suffi- cient to raise a presumption of knowledge (N.L.R.B. v. Montgomery Ward & Co., Inc., 242 F.2d 497, 502 (C.A. 2), cert. denied 355 U.S. 829; N.L.R.B. v. Mid State Sportswear, Inc., 412 F.2d 537, 539 (C.A. 5)), particularly in conjunction with the small size of the facility (N.L.R.B. v. Pembeck Oil Corporation, 404 F.2d 105, 110 (C.A. 2), remanded 395 U.S. 828). 13 Indeed, it does not even affirmatively appear that Alexander was at the clinic on that day, which a great many people took off as part of a long holiday weekend. Alexander testified that he was away from the clinic a great deal during November. And his addressing a memorandum to Sloan on November 24 suggests that he might have intended to be absent on Friday. 520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Alexander's entire course of conduct convinces the Trial Examiner that he knew of the union activities when he discharged Post. First, he never undertook to explain the urgency of Post's discharge, on the eve of a holiday, in the middle of a week. This is particularly noteworthy in view of Burroughs' uncontradicted testimony that the workload was heavy that day and the considerable testimony that there was such a backlog of stenographic work that two temporary part-time stenographers were then working at the clinic. In addition, Ann Alexander was then on leave and Griffith was scheduled to be off on vacation the follow- ing week. Their absence required temporary reassignment of personnel which resulted in reduction of the already small stenographic pool. In the absence of some egregious misconduct on Post's part, one would reasonably expect that she would be retained at least until Griffith had re- turned from vacation. As previously stated, at the end of the day, after firing Post, Alexander held a virtually unprecedented employee meeting. Although Burroughs testified, without contra- diction, that at least four employees had been discharged during her tenure of about 1-1/2 years, Alexander had not held employee meetings to discuss those discharges. The eve of a holiday seems a somewhat unusual time for such a meeting if Post's discharge was, as Alexander maintained, for a long course of misconduct which presumably would be well known to the other employees. Additionally, however, there was introduced into evi- dence a memorandum which Alexander had purportedly addressed to Sloan. That memorandum, dated November 24, begins: In your absence on Wednesday, November 24, 1971, I found it necessary to discharge an employee at the end of the day without waiting for you. Nothing in the memorandum or in Alexander's testimony explains the urgency of either the discharge or the memo- randum. One might conjecture that the urgency of the memo (if it was actually written on November 24 4) arose out of Alexander's intention not to be present on Friday, the day after Thanksgiving Day, and thus had to leave written advice for Sloan, who presumably would be in charge in Alexander's absence. If that conjecture is right, it would, of course, demonstrate that Alexander had knowledge of the union activities on Wednesday, November 24, since he had it by Sunday, November 28. On the other hand, if Alexan- der planned on being at the clinic on Friday, it would seem that the only reason for having a memorandum rushed through on a holiday eve, apparently after normal working hours, would be hastily to create a "record." The "self- serving" and defensive nature of the memorandum clearly suggests a "record-making" motivation. The precipitous discharge of an apparently satisfactory employee, 2 days after she solicited union authorization 14 The memorandum was apparently typed by Joanne Biscorner, who was at that time executive secretary and replaced Sloan as assistant administrator as of December 20. Although she was called as witness by Respondent, she was not examined concerning the memorandum. cards from all her fellow employees, on the employer's premises, is clearly sufficient to establish a prima facie case of discrimination, making it incumbent on Respondent to rebut that factual presumption. N.L.R.B. v. Standard Con- tainer Co., 428 F.2d 793, 794 (C.A. 5). Respondent propounded a variety of reasons for the discharge, all of them designed to establish that, in Alexander's words, Post was "a bad employee." In telling her she was being discharged, Alexander, according to his testimony, "told her that she was being discharged because of regardless of the amount of places I tried to find for her in the clinic to do a suitable job that would keep her in employment with us that I could no longer go along with her. I was just at the end of my rope." Alexander's contention that he had had to transfer her frequently does not withstand analysis. He conceded that when she first worked as a medical transcriptionist she was unusually competent. Because of her superior performance, she was "promoted" to the appointments desk, with an increase in compensation. Ann Goldstein, who had been a temporary supervisor at East Clinic for a few months in the spring of 1971, testified that Post had been somewhat out- spoken in her telephone contacts. So far as appears, Post's major dereliction had been implied criticism of the idiosyn- crasies of Dr. Midgley, one of the clinic doctors, who fre- quently refused to see patients who were late for their sched- uled appointments. Alexander testified that Post "many times in the past had come to [Alexander] on her own to have [him] intercede to have the patient examined and do some- thing about [Dr. Midgley's] problem, as far as she thought he had a problem" and at those times Alexander "instructed her that her function was to make appointments, and it was not her position to question the doctor or to circumvent it." Whether or not Post's conduct concerning Dr. Midgley, as described by Goldstein and Alexander, was improper," there was no direct testimony at the hearing to substantiate the statement in Alexander's self-serving memorandum of November 24 to Sloan that Post "was continuously arguing with the doctors and arguing on the phone with the insur- ance companies." Burroughs, a friend of Post, acknowl- edged that she knew that Alexander was not entirely happy with Post's telephone manner. But Post herself was dis- pleased with the job as appointment's secretary and over a considerable period of time had requested to be relieved therefrom and eventually was transferred back to the steno- pool in August. Thus, for about 3 months before her dis- charge, she had not performed telephone duties. 15 Alexander testified: Q Do you agree that Dr Midgley was a particularly difficult person with respect to keeping appomtments9 A Whether I agree or whether I don't has nothing to do with an individual on the job that she has been hired to do. I might have a personal opinion, but- s • s Q.... Was there any particular difficulty with Dr . Midgley about late patients? A Possibly. DETROIT INDUSTRIAL CLINIC, P. C. 521 A part of the appointments secretary's responsibility is to prepare weekly reports on the status of doctors' reports. According to Alexander, some of Post's status reports inac- curately showed that the doctors' reports were on a substan- tially current basis whereas he subsequently learned that they were up to 6 weeks late. On direct examination Alexan- der testified: Q. Are you telling this Court that she wrote two days behind when they are six weeks behind, actually? A. Definitely. They are a matter of record. However, at another point he revealed that delinquency in reports has plagued Respondent for years and he would be happy if he could get the lag reduced to an average of 30 days. On subsequent questioning Alexander testified that the allegedly "false" records were available in Respondent's files, but they were never produced.16 Although Alexander maintained that Post's motivation in preparing the "false" reports was to conceal the need for overtime work by ste- nographers, he eventually conceded that Post's reports were at most "incorrect," not "falsified."" And he also indicated that after he discovered the extent of delinquency which Post had concealed, he was unsuccessful in his attempts to have the employees perform overtime work. Whatever the true facts may have been about the re- ports, Post was not discharged at the time, which was around July or August. Instead, her longstanding request for transfer from the appointments desk was granted. The allegedly "falsified" or "incorrect" reports are not men- tioned in the November 24 memorandum from Alexander to Sloan detailing the reasons for Post's discharge. Alexander testified that Post was transferred from the' appointments job to the front desk, as a receptionist, pre- sumably because of her derelictions as appointments secre- tary. However, both Post and Burroughs credibly testified that Post served as receptionist only for a short period, not exceeding 2 weeks, while receptionist Koth was out of the office on sick leave. Post was then transferred to the steno- pool. Alexander testified that the transfer from the front desk was made because Post complained about having to work at the front desk.18 However, the Trial Examiner cred- 16 Alexander's attitude is reflected in the following colloquy in the course of cross-examination: Q Is there any way in which we can determine from company records exactly when she was the appointment secretary? I believe there is a dispute m.the record. A. There is a total dispute here, certainly, and I am certainly not going to do your job for you Ma PERmwr, [Respondent's counsel]- Here, we do have the records here THE Wr m We don't have that record. No records were produced, despite their relevance to Respondent's conten- tion that Post was discharged for cause. 17 Alexander testified: Q. (By Mr. Hayes) .. is it your position that she deliberately falsified that report? A. I would think the word "falsification" might be a little strong, but I must say she submitted it incorrectly. An uncorrect report, or incorrectly. Is The November 24 memorandum from Alexander to Sloan says: 'I tried her on the front desk and she objected to this job as it was too much for her and she did not like it there." its Post's testimony that she had not complained about the front desk assignment since it was never considered other than a temporary assignment during Koth' s illness. There is no suggestion that Post's work was unsatisfac- tory after her return to the stenopool in August, 3 months before her discharge. 19 Indeed, although Alexander testified that he had been absent from the clinic a great deal in November, he did not consult Burroughs, supervisor of the pool, or any other supervisory or managerial personnel be- fore discharging Post. Significantly, as Post credibly testi- fied, without contradiction, at the time of her discharge she was temporarily filling in on the appointments desk while employee Griffith was replacing Ann Alexander as comput- er operator and Post was scheduled to continue temporarily on the appointments desk for the next week, when Griffith was to be on vacation. The facts are, therefore, that Post was actually transfer- red only twice during her tenure : First, she was promoted from the stenopool to the appointments desk in November 1970, and later, in August 1971, she was transferred back to the stenopool pursuant to her request and Alexander's belief that her talents lay in nontelephonic work. According to Alexander, the basic reason for the dis- charge was Post's inability to get along with other employ- ees, culminating in a contretemps with employee Griffith on the morning of November 24. Alexander testified that in the lab area about 10 or 10:30 a.m. that day he overheard part of "an aside between Virginia Post and Marge Griffith and another employee" in which Post was "giving Marge the devil, `because I have to do your work:... I had to do part of your work. I don't know why the people can't do their own work around here." Alexander testified that he then decided he had come "to the end of [his] line with Virginia Post." Alexander did not identify the "other employee" allegedly present at the time and Griffith did not testify. Alexander testified that he asked Griffith what the argu- ment was all about, but he did not question Post because, for no explained reason, he "was not interested in whether or not [Post] had to do somebody else's work." Post denied that any such conversation or "aside" had taken place. Bur- roughs testified that she had been in the lab area all that morning and had not heard any such conversation or dis- agreement between Post and Griffith. According to Post, she and Griffith had prepared all necessary charts by 9 a.m., when needed. Alexander's testimony was uncorroborated except for hearsay by Biscomer. The Examiner discredits Alexander's testimony concerning a dispute between Post 19 Alexander testified: A. Her work in the steno pool in the past when I promoted her was excellent. Q. How was it when you returned her there? A. Not too good. The work, per se, her performance was passable. Q. What was the problem? A. The problem was the continuing dissension we had in that de- partment. We could not get people to work overtime , and I still could not get enough out of the office for the amount of people that we had. Petty bickering between the girls. There was no evidence that Post refused any requests to work overtime or induced other employees to do so. 522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and Griffith. Further, even if there had been such an inci- dent, the extent of Alexander's failure to consult Burroughs or otherwise investigate the matter, or to solve the problem by means other than Post's discharge, would clearly warrant the inference that he was looking for a pretext on which to discharge Post. Alexander's contention that Post was discharged for causing "dissension" and "bickering" is unsupported by any credible evidence. Burroughs and Ann Alexander, as well as Post herself, credibly testified that Post had always got along very well with the other employees. Even Alexander's own testimony suggests that Post was not the sole or principal cause of whatever dissension, if any, ex- isted among the employees. For example, he testified that Koth "knows she [Koth] had been a problem child through- out." Although Koth, unlike Post, had been warned of pos- sible discharge, she was not discharged. At another point Alexander testified that there was "petty dissension .. . rampant in the clinic"-hardly an indication that Post was uniquely a troublemaker. Apart from Alexander' s vague and generalized testimony, the only evidence of "dissen- sion" or "petty bickering" in the clinic indicates that it centered about the employees' objection to Assistant Ad- ministrator Sloan. Alexander testified that Sloan had com- plained about Post 20 When asked what his response to such complaints had been, Alexander replied: "Well, unfortu- nately Virginia Post was just one of many that he had com- plaints about." As previously noted, this cause of dissension was removed by the discharge of Sloan. Finally, Alexander had never spoken to Post about the "dissension," which he now maintains was longstanding and for which he claims she was largely responsible. A final word may be said about Respondent' s wide- ranging attempts to justify Post's discharge. 21 In cross-ex- amining the General Counsel's witnesses, Respondent's counsel attempted to show that Post had been discharged from several previous jobs and had falsified her application for employment with Respondent. When asked if and when he had warned Post of possible discharge if she did not improve her performance or attitude, Alexander gratuitous- ly said: "I think Virginia Post also realizes it was a rehabil- itative effort with her, even though she falsified an application." The "falsification" was not mentioned in the November 24 memorandum from Alexander to Sloan and was not referred to in the discharge interview. In any event, the accusation against Post was not sub- stantiated. The testimony indicated that Post's written em- ployment application did not state that she had been fired from her immediately preceding job. However, she credibily 20 Ironically, according to Post's credited testimony, Sloan offered her the position as his secretary after Koth had refused such offer. 21 Respondent's counsel declined to specify the "cause" for discharge in an opening statement at the hearing. testified that she orally revealed this fact when she submit- ted the written application and was hired by Alexander. Apparently the written application, which was not offered in evidence, stated that her prior employment had ended because of a personality conflict between her and a Mrs. Green. According to both Post and Burroughs, who had also worked with Post at the prior job, this personality clash had caused Post's discharge and Alexander had been fully, informed of that fact. Respondent did not succeed in estab- lishing that Post had concealed facts concerning any other previous jobs. The Trial Examiner finds that the alleged "falsifica- tion" of her employment application, filed more than a year and a half before her discharge, with an intervening promo- tion because of her excellent performance, played no part, in the discharge. The repeated reference to this alleged mis- conduct in itself adds considerable basis for doubting, Respondent's motivation. Shattuck Denn Mining Corp. v. N.L.R.B., supra, 362 F.2d at 470. In conclusion, there is no credible evidence showing any reason for Post's sudden discharge on November 24' other than her successful solicitation of union authorization cards from her fellow employees. The General Counsel's evidence, though largely circumstantial, overwhelmingly compels the inference that Post was discharged for her un- ion activities. Respondent totally failed to refute that infer- ence. CONCLUSIONS OF LAW 1. By coercively interrogating employees concerning their union sympathies and activities, and by threatening employees with discharge for adhering to the Union, Re- spondent through A. E. Alexander, its agent, interfered with, restrained, and coerced employees in the exercise of their rights under Section 7 of the Act, thereby engaging in unfair labor practices within the meaning of Section 8(a)(1). 2. By discharging Virginia Post on November 24, 1971, and failing and refusing to reinstate her thereafter, Respon- dent has engaged in and is engaging in an unfair labor practice within the meaning of Section 8(a)(3) and (1) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in unfair labor practices, the Trial Examiner will recommend that Respondent be ordered to cease and desist therefrom and take affirmative action of the type customarily ordered in such cases. Having found that Respondent discriminatorily dis- DETROIT INDUSTRIAL CLINIC, P. C. 523 charged Virginia Post in violation of Section 8(a)(3) of the Act, the Trial Examiner will recommend that Respondent be required,to offer her immediate and full reinstatement, with backpay, to be computed in the manner established in F. W. Woolworth Company, 90 NLRB 289, together with interest at 6 percent per annum in accordance with Isis Plumbing & Heating Co., 138 NLRB 716. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, the Trial Examiner hereby issues the following recommended:' ORDER Respondent, Detroit Industrial Clinic, P. C., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Coercively interrogating its employees concerning their union activities. (b) Expressly or impliedly threatening employees with termination of their employment if they adhere to the Inter- national Union, United Automobile, Aerospace and Agri- cultural Implement Workers of America (UAW), or any other labor organization. (c) Discouraging membership in the said Union, or any other labor organization, by discharging any employee or by discriminating in any other manner in regard to hire and tenure of employment of any term or condition of employ- ment. (d) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the right to self-organization, to form or join labor organizations, and to engage in any other concerted activity for the purpose of collective bargaining or other mutual aid and protection, or to refrain from any such activities. 2. Take the following affirmative action, which is nec- essary to effectuate the policies of the Act: (a) Offer Virginia Post immediate and complete rein- statement to her former job or, if that position is no longer in existence, to a substantially equivalent position, without prejudice to her seniority or other rights and privileges, 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." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, person- nel records and reports, and all other records necessary to analyze and compute the amount of backpay due under the terms of this recommended Order. (c) Post at its clinics in Warren and Detroit, Michigan, 22 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. copies of the attached notice marked "Appendix."23 Copies of said notice, on forms provided by the Regional Director for Region 7, after being duly signed by Respondent's au- thorized representative, shall be posted by Respondent im- mediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, in- cludmg all places where notices to employees are custom- arily posted. Reasonable steps shall be taken by Respondent to msure that said notices are not altered, defaced, or cov- ered by any other material. (d) Notify the Regional Director for Region 7, in writ- ing, within 20 days from the date of receipt of this Decision, what steps the Respondent has taken to comply herewith.24 23 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 24 In the event that this recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read: "Notify the Regional Director for Region 7, in writing , within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial in which all parties had the opportunity to present their evidence, it has been found that we violated the Act and we have been ordered to post this notice about what we are committed to do: The Act gives employees these rights: To organize themselves To form, join, or help unions To bargain as a group through a representative of their own choosing To act together for collective bargaining or oth- er mutual aid or protection To refuse to do any or all these things. We assure all of our employees that: WE WILL NOT do anything that interferes with these rights. WE WILL NOT advise or suggest to employees that they leave our employ if they are not happy or other- wise threaten them with termination of their employ- ment for union activities or sympathies. WE WILL NOT question our employees concerning their union activities or sympathies. WE WILL NOT discharge or otherwise discriminate against any employees because they engage in activities on behalf of the International Union, United Automo- bile, Aerospace and Agricultural Implement Workers of America (UAW), or any other labor organization. WE WILL offer Virginia Post immediate and full reinstatement to her former job (or, if thatjob no long- 524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD er exists, to a substantially equivalent job) without prej- udice to her seniority or other rights and privileges. WE WILL make Virginia Post whole for any loss of earnings she may have suffered by reason of her dis- charge by us on November 24, 1971, together with interest. DETROIT INDUSTRIAL CLINIC, P. C. (Employer) 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 compliance with its provisions may be directed to the Board's Office, 500 Book Building, 1249 Washington Boulevard, Detroit, Michigan 48226, Telephone 313-226-3200. Dated By (Representative) (Title)