Walnut Creek Hospital

656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Walnut Creek Psychiatric Hospital d/b/a Walnut Creek Hospital and Roberta A. Sch m ljobann. Case 20-CA-8134 January 23, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On August 20, 1973, Administrative Law Judge Henry S. Salim issued the attached Decision in this proceeding. Thereafter, General Counsel filed excep- tions 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 attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge to the extent consistent herewith, and to adopt his recom- mended Order as modified herein.' The Administrative Law Judge found that on February 20, 1973, Hospital Administrator Veronte interrogated employee Moerer in violation of Section 8(a)(l) of the Act when he asked her if she had signed "anything" with the Union. No exception has been taken to this finding. However, the General Counsel has excepted to the Administrative Law Judge's failure tofind an additional 8(a)(l) violation stemming from this unlawful interrogation when, upon Moerer's denying any union involvement on her part, Veronte stated that employee Bugnatto had told him otherwise, and that Ingram, whom we find hereinafter to be a supervisor, had told him the same thing. We find merit to this contention of the General Counsel. Accordingly, we find that these statements of Veronte created the impression that her union activities were being kept under surveil- lance in violation of Section 8(a)(1) of the Act. The General Counsel has also excepted to the Administrative Law Judge's failure to find that Ingram was a supervisor and agent of Respondent as alleged in the complaint. That complaint allegation was not denied in Respondent's answer. Neverthe- less, the Administrative Law Judge held that the General Counsel had not established that Ingram was a supervisor or agent of Respondent because no 1 The General Counsel excepted to the Administrative Law Judge's failure to include as part of his remedy that Respondent be required to offer reinstatement to employee Schmaljohann who was found to have been discharged in violation of Sec . 8(aX3) and (1) of the Act. Thereafter, the Administrative Law Judge issued an "Erratum " correcting this inadvertent omission from the remedy part of his decision by requiring Respondent to "offer reinstatement to her to 'the position she held on January 6, 1973." We evidence was adduced as to her status at the hearing. We disagree. Apparently, the Administrative 'Law Judge inadvertently overlooked the failure of the Respondent to contest the allegation of Ingram's supervisory and agency status in .its answer, and, therefore, the lack of necessity for the General Counsel to offer proof in support of it. Under Section 102.20 of the Board Rules and Regulations, Series 8, as amended, the failure of Respondent to deny this allegation constituted an admission by it that Ingram was its supervisor and agent, and we so find.2 Having so found, we must consider the merits of the allegations in the complaint based on Ingram's alleged unlawful conduct as the Administrative .Law Judge dismissed such allegations on the ground that responsibility for her acts could not be imputed to Respondent. Employee ^ Berger testified without contradiction that on February 26, 1973, Ingram' asked her if she had "signed any papers to do with the Union" to which she said it was no concern of Ingram 's. When Ingram became excited, banging her hand on the table and demanding an answer, Berger admitted that she had signed something. We find this conduct of Ingram to be interrogation in violation of Section 8(a)(l) of the Act. Employee Moerer testified without contradiction that on January 8, 1973, she asked Ingram if the Union had been to the hospital, to which Ingram replied that she knew union representatives had been there. The General Counsel contends in his excep- tions that this conduct by Ingram created the impression of surveillance . Since Moerer initially asked Ingram about the Union and no evidence was presented to indicate that Ingram's knowledge of the Union's presence was obtained through anything other than innocent observation, we find that Ingram's response to Moerer's inquiry did not create the impression of surveillance in violation of Section 8(a)(1) of the Act, 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 Administrative Law Judge as modified below and hereby orders that Respondent, Walnut Creek Psychiatric Hospital, d/b/a Walnut Creek Hospital, Walnut Creek, California, its offi- shall modify the recommended order of the Administrative Law Judge to require that Schmaljohann be offered reinstatement to her former or a substantially equivalent position of employment, if the prior job is no longer available 2 Sec. 102.20 in pertinent part provides that "any allegation in the complaint not specifically denied ... in an answer ... shall be deemed to be admitted to be true and shall be so found by the Board ...." 208 NLRB No. 98 WALNUT CREEK HOSPITAL cers; agents, successors , and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Insert the following as paragraph 1(c) and reletter the following paragraphs accordingly: "(c) Creating the impression . of keeping under surveillance the union activities of its employees."- 2. Substitute the following for paragraph 2(a): "(a) Offer to Roberta A. Schmaljohann 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, and make her whole for any loss of earnings of benefits she may have suffered by reason of the discrimination against her from January 6, 1973, until the date of said offer, with reimbursement to be computed as provided in F. W. Woolworth Company, 90 NLRB 289, Isis Plumbing & Heating Co., 138 NLRB 716." 3. Substitute the attached notice for that of the Administrative Law Judge. 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, the National Labor Relations Board has found that we, Walnut Creek Psychiatric Hospital, violated the National Labor Relations Act, and has ordered us to post this notice and to keep the promises that we make in this notice. WE WILL NOT discharge or otherwise discrimi- nate against any employee because of his or her activity on behalf of, or membership in, Hospital and Institutional Workers Union, Local 250, AFL-CIO, or any other labor organization. WE WILL NOT.question our employees about whether they belong to a union or signed union papers. WE WILL NOT create the impression that we are keeping union activities under surveillance. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their rights under Section 7 of the Act. WE WILL offer full reinstatement to Roberta A. Schmaljohann to her former job or, if that job no longer exists, to a substantially equivalent posi- tion, and make her whole for any loss of pay she may have suffered as a result of her discriminato- ry discharge,. plus interest thereon at 6 percent a year. 657 WALNUT CREEK PSYCHIATRIC HOSPITAL D/B/A WALNUT CREEK HOSPITAL (Employer) Dated By (Representative) (Title) 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, 13018 Federal Building, Box 36047, 450 Golden Gate Avenue, San Francisco, California 94102, Telephone 415-556-3197. DECISION HENRY S. SAHM, Administrative Law Judge: This proceeding, heard at San Francisco, California, on July 9 and 10, 1973, pursuant to a charge filed March 6, 1973, and a complaint issued June 20, presents two issues : whether Respondent hospital discriminatorily discharged employee Roberta A. Schmaljohann on January 5, 1973, because of her union activities ; and secondly, whether Respondent engaged in surveillance and interrogated and promised employees benefits including wage increases, in order to discourage their support of the Union. Upon the entire record, including observation of the demeanor of the witnesses, and after due consideration of the briefs filed by General Counsel and by Respondent on August 13, 1973, there are made the following: FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYER AND THE LABOR ORGANIZATION INVOLVED Community Psychiatric Centers , a California Corpora- tion, operates 10 proprietary hospitals in California. One of its hospitals, the Respondent herein, which is located at Walnut Creek, California, had gross annual revenue in excess of $250,000, and annually receives goods and materials valued in excess of $5,000 directly from outside the State and approximately $5,000 in Federal medicare and California medicare medical programs . It is found accordingly, that Respondent is an employer, engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The Union, Local 250 of the Hospital and Institutional Workers' Union, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. 658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 11. THE ALLEGED UNFAIR LABOR PRACTICES 1 A. Introduction It appears that some time after the hospital opened in March that certain employees were dissatisfied with their working conditions, as evidenced by the turnover of personnel. Because of this discontent, they began to discuss among themselves the feasibility of having a union represent them. A prime protagonist for a union was Roberta Schmaljohann who told some of her coworkers that she favored a union and also informed them of the advantages of a union in alleviating those working conditions of which they complained. Schmaljohann, who was an inactive member of the Union herein,2 stated to the employees her favorable views with respect to this Union in particular, and the employees' need in general, for a union to remedy their complaints and improve their working conditions.These prounion sentiments of Schmal- johann were expressed in the presence of her immediate supervisor, Doris Hendricks, who was present on various occasions when Schmaljohann was speaking to other employees about the necessity of a union. It was suggested by Hendricks to Raymond Veronte, the head of the hospital and her superior, that Schmaljohann should be terminated because of her union activities. Veronte discharged Schmaljohann on January 5, 1973, with no prior notice. On March 2, 1973, the Union filed a representation petition, a Board election was held on April 19, which the Union won, and a certification of representa- tive issued on April 27, 1973. B. The Alleged Violation of Section 8(a)(3) Roberta Schmaljohann, the alleged discriminatee, who had 7 years' experience as a medical records secretary, was hired on July 19 as a medical records secretary in the business office of the Respondent hospital. She worked under the immediate supervision of Doris Hendricks, who was the head of the business office and also director of personnel. The hospital physicians dictated their diagnosis regarding the condition of their patients to Schmaljohann who, in turn, transcribed and typed their medical reports. In addition, she opened and distributed the mail, took care of the correspondence of the hospital administrator, Raymond Veronte, and was also in charge of the filing and custody of the medical records. Insofar as the technical aspects of the medical records were concerned, she was under the direct supervision of Evelyn Reynolds, a licensed medical records consulting librarian, who visited the hospital once each month to evaluate, inter alia, the quali ty of Schmaljohann's medical records work, which she incorporated into a written report for submission to Veronte, the hospital administrator. Reynolds was not a hospital employee but performed her duties on a contract basis. At the end of Schmaljohann's 3- 1 All dates are 1972 unless otherwise indicated. 2 She obtained a withdrawal card from the Union in 1969 when she voluntarily left the employ of another hospital. A withdrawal card usually entitles the holder to a very qualified union membership . Such cards are either of the honorary or participating type. Normally, both types carry an exemption for the holder from the dues obligation to the union and entitle the holder to regain regular membership without fulfilling normal month, probationary period, Reynolds submitted to Veronte a favorable report dated October 27, 1972, of her work performance. On the same date, Veronte recom- mended a pay raise for Schmaljohann. See G.C. Exh. 3. The following day, October 28, Veronte discussed Schmaljohann's performance evaluation report with her. According to Schmaljohann, Veronte told her that she "was getting along petty well, that my relationship' with the employees and my coworkers and my supervisors was quite good and that I didn't have any significant problems there. He did say that I showed a reluctance to communi- cate with the doctors as far as completing their charts and medical records, but he thought that this weakness would improve with experience. He said that he didn't have any real unfavorable comments other than that one weakness that I showed in communicating. Also, with the Medical Director and himself, he did say that he felt there was a lack of communication there .... I told him that I felt there was a lack of communication between the Medical Director and the Administrator [Veronte], inasmuch as they were not aware of how much work they had placed upon me, and he thought the lack of communication wasn't between he and the Medical Director as much as it was with me coming to the Medical Director or himself with my comments . . . he didn't have any negative remarks at that time other than the fact that I mentioned previously . . . . He told me that I would be getting my pay raise, effective November 1. He rated me as competent to effective worker, I believe." Veronte, the hospital administrator's version of this interview reads as follows: "In that 90-day evaluation, it was pointed out to her that neatness and accuracy of her work needed improvement and that she needed to organize her work better. These, were things that needed to be done better and this was areas that I talked to her about and I thought that she had to learn to get along better with the Medical Director and the Administrator. She seemed to be confused on how to handle these people and how to handle doctors." Schmaljohann also testified that: "[The] third or fourth week in November, [Veronte] said that Dr. Widroe, the Medical Director, had been complaining about the transcription on the charts on the ward, that he had gone through them. They were not just his charts ... Mr. Veronte asked me at that time whether or not I was having any particular difficulty with the transcription ... . Schmaljohann went on to explain that she was experienc- ing no difficulty except for one particular doctor who "spoke with a brogue, and his accent was sometimes a little difficult to handle, but after you familiarized yourself with him, that he was pretty routine ...." Schmaljohann continued that when Reynolds made her monthly visit to the hospital in December, Reynolds told her that Veronte had discussed with Reynolds the quality of the medical reports which the doctors had dictated to reinstatement requirements. In addition. the holder of the participating withdrawal card is entitled to participate in the pension and insurance benefits of the union's international affiliate upon the payment of certain fees. Withdrawal cardholders are denied all other benefits of membership including the right to attend meetings. but are subject to the Union's constitution. WALNUT CREEK HOSPITAL 659 Schmaljohann and which she transcribed from her short- hand notes. Schmaljohann stated Reynolds assured her that her work was "very adequate," stating, "I want to let you know that I pulled your charts on a random basis on the ward and I found ; your transcription to be very adequate, and I'm going to be putting it, in my next report .... Schmaljohann . stated that the "very adequate" evaluation by Reynolds of her work did appear in the next report and that Veronte read the report in her presence, "but nothing was said [by him] about [Reynold's report] one way or the other." Schmaljohann's status in the Union herein at the time the events in this proceeding occurred was that of an inactive member, as she was issued a withdrawal card by the said Union when she voluntarily left the employ of the Kaiser Hospital in 1969. See footnote 2. However, in discussions by the employees about unsatisfactory working conditions at the Respondent hospital as described, supra Schmaljohann was in the forefront in espousing the benefits of unionism and making invidious comparisons with the differences between Respondent's wages, holi- days, and other working conditions as compared to those hospitals whose employees were represented by the Union herein. On one of many occasions when Schmaljohann was advocating unionism, she told Hendricks, her supervisor, in November, that in view of there being so many "dissatisfied personnel that there was an air of animosity that you could feel from the day that you worked there, and she said that she knew that a problem existed, and I told her [Hendricks] `Well, don't you feel that if there was a union here . that the employees would be protected,' and she knew that a problem existed . . . but she didn't feel that a union was the answer . . . . I told her that with a union, you do have grievance protection. I understood her point though when you do have a union shop that you have to, you know, the employer's hands are tied, and I realized this, but taking everything into consideration , I still maintained my feeling that the employees would be more protected and would be better off with a union." Schmaljohann testified that during the first week in December, while in the hospital cafeteria , with employees of the nursing, dietary, and business departments,3 that they asked her "since I had been a previous employee of Kaiser Hospital, which was a member of Local 250, they asked me what,.the pay scale was at the time. The union contract had just been changed and the pay scale was quite a bit more than what they had been making there, and I can remember some of the nursing personnel in particular were really amazed at the difference in pay that they would be receiving on an hourly basis." On or about December 22,. while having lunch with Hendricks, Schmaljohann informed Hendricks that it was her belief that the employees favored the Union and that she "liked" her work but considering the responsibility placed upon her and the amount of work expected of her, 3 Patricia Gavello, a business department employee, who testified on behalf of the Respondent, was present, and according to Schmaljohann, Gavello complained that the hospital had not paid her for overtime she had worked, stating, "The only thing that'll straighten this place out is a union." Gavello on her direct examination denied she stated "the Union would be a good thing for the hospital," or that Schmaljohann ever discussed union she "felt [she ] was underpaid," compared with the salary she would be receiving if she was employed at a union hospital. On the morning of January 5, 1973, Schmaljohann was summoned by Veronte to his office. The following is her recital of what occurred: He and I were 4he only ones that were present. He leaned back in his chair and he said , "Bobbie, I have something painful to tell you," and I looked at him and he said, "I'm going to have to let you go." And I was stunned at. first, and then I said, "Why," and his reply was, "Well,' he says, "It's many things." He says, "I can't put my finger on any one certain thing ," and he says, "that we," meaning Dr. Widroe, the Medical Director, and himself felt that they couldn't trust me and that I was disloyal. I had said that I didn't see how they could feel that way. I did mention the fact that I consulted Mrs. .Hendricks on a few occasions and he pointed out that I should have consulted him, which , you know, would have been the chain of command , and that, he said, "Well, for an example, I know this sounds petty," but he says, "I asked you to stamp the mail as it was received," and he says, "I had to remind you to do that twice," and he said, "You still haven't done it." Well, this was right around the time of the holidays and we had a three-day weekend in between and I admit I did neglect to do that, but then the holidays, there was quite a bit of work to be done, and that wasn't the first thing on my mind, and he said that he was sorry. I told him, I said, "Do you realize I'm not in a position where I want to work? I'm in a position where I have to work," and he said that he realized that and that he was sorry and if he could do anything to help obtain another job, he'd be happy to because I was a superior worker and, on that note, he told me, he said-I asked him if that was all. I asked him when my last day was and he said, "Today." I said, "Will I be getting my check in two weeks?" He said, "No," he said, "I have it prepared," and so then I went into Medical Records and called my husband and shortly after that he came into Medical Records and asked me for my keys and gave me my check. It was elicited that January 5 was Schmaljohann's regular payday and that Veronte handed her regular check to her that morning and the afternoon of the same day she received her final paycheck approximately at 4 o'clock. She testified that she was given no warning that. she was to be discharged and that she was paid in full up to the date of her discharge but she was not given any compensation for the following week or 2 weeks but merely paid up to the date of her discharge. Morris Wills was northern California acting regional activities with her, other than she agreed with Schmaljohann's statement to her that the hospital would go union . Little credence has been given Gavello's testimony. Also present, testified Schmaljohann, was Grace Ingram, head of the dietary department, who attended "quite a few of the discussions that we had in the cafeteria. " 660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD administrator from June 1972 to February 21, 1973, of four hospitals, including Respondent Walnut Creek Hospital, which were operated by Community Psychiatric Centers.4 His testimony follows: In mid-December, he was "advised" by Veronte that he intended to discharge Schmaljohann. After Veronte stated the reasons for his contemplated action, Wills stated that he "felt that [Veronte] did not have sufficient grounds for termination. ... [because b lased on her employee evaluation and the facts that he [Veronte] had presented to me, I did not feel at the time that there was just cause for termination." At another point in his testimony, Wills stated that when he and Veronte discussed Schmaljohann's evaluation report [General Counsel Exhibit No. 3] he "found nothing in her evaluation that would lead me to dismiss her." Another discussion was had between Veronte and Wills on the morning of January 5, 1973, with respect to Schmaljohann's proposed discharge. Wills testified that they considered whether "there was just cause for termina- tion of Mrs. Schmaljohann." The basis for Veronte's discharging her, continued Wills, was "that he couldn't trust her [because] of her conferring with Evelyn Reynolds on the subject of medical records . . . that she had gone over his head .... [I told him] it would be within the normal chain of command for her to go directly to Mrs. Reynolds on questions pertaining to medical records," and that it was not necessary for her to obtain permission from Veronte before discussing with Reynolds matters involving medical records. Wills concluded that "based on our discussion, that there was no supportive evidence for [her] termination ...." Wills testified that he also told Veronte that terminating people "without back-up proof of malfea- sance of duty could result in poor public relations for the hospital." Wills continued that "it was my contention that seeking clarification of policy regarding medical records directly from Mrs. Reynolds was the appropriate thing to do, as Mrs. Reynolds was the Medical Records Consult- ant.,, A week after Schmaljohann's discharge, Veronte tele- phoned Wills and "questioned [him] as to what his legal responsibility was in supplying the Schmaljohann family with the letter stating reasons for discharge, what would happen to the hospital if he didn't, or what could happen to the hospital if he did not supply the letter, and whether or not he should supply the letter." Wills testified that this letter, which apparently was requested by Schmaljohann, was not supplied to her. Wills concluded his direct examination by testifying that when Veronte was adamant in discharging Schmaljohann, he told him: "Under the circumstances. 1 felt that it would be fair to give her two weeks' notice rather than to discharge her summarily for cause." On cross-examination and redirect, it was elicited that Wills and Veronte discussed in mid-December "the possibility and probability that union activity was taking place at Walnut Creek Hospital" but continued Wills, he did not recall discussing "anyone specifically that would be engaged in union activities...." Wills stated that there "had been an ongoing discussion" with respect to union activities beginning as early as July 1972. Doris Hendricks who was business manager of the hospital from February 1972 to February 9, 1973, and Schmaljohann's immediate supervisor, testified that she informed Veronte in late November or early December that employees were talking to union representatives. "I told him that I felt that one member of my particular staff, and when I say immediate member, I'm speaking mostly of the girls in the Business Office that I was mostly related with, one member had been cultivating or speaking to a union representative, and I furthermore mentioned to Mr. Veronte that it had been brought to my attention that a member of the nursing staff had considered this and there was a lengthy discussion with Mr. Veronte." Hendricks stated that they mentioned names of employees who might be involved in union activities. She continued that she mentioned Schmaljohann's name to Veronte and told him that "surely" he was aware that she was a member of the Union herein "since she came from Kaiser [Hospital] .. . and that she told Veronte of Schmaljohann's union interest. On cross-examination, Hendricks stated that she suggested to Veronte that Schmaljohann might be disloyal and should be separated because of her union activities. Hendricks was absent from the office from December 24 to January 8. 1973, because of illness. When she returned she inquired of Veronte why Schmaljohann was terminated and why he had not informed her before taking this action. Hendricks testified that Veronte never told her he was contemplating firing Schmaljohann. According to Hen- dncks, the reply of Veronte was: "Well, I didn't want to say anything to you in the hospital. I figured you didn't need any more undue strain" and I asked him why and he said, "Well, as you know, I have been thinking of terminating her some time, and she was not able to cope with the work and I said, no, I was not aware that you'd been contemplating this for some time, and I said that if I felt that it was her work, I felt that she was a terr ibly loyal person, and, to my knowledge, having proofread several documents of good size for her and found them to be extremely accurate with a minimal of typing errors, I didn't understand this." Hendricks continued that there may have been two or three criticisms which Veronte made of the quality of Schmaljohann's work but that they "were very, very minor ...." Hendricks also related that she had inquired of Reynolds on "several occasions" with respect to the quality of Schmaljohann's work because Veronte and Dr. Widroe, chief of the hospital's medical staff, had complained about her. Hendricks mentioned this to Reynolds, the hospital's medical records expert, who stated that she was aware of these complaints. Hendricks' testimony continues that Reynolds "wanted me to know that she had pulled [Schmaljohann's] charts at random and checked them out and found her work to be satisfactory .... Just to the fact that she had pulled 12 charts at random and she specifically said Dr. Widroe, since he was making the complaints . . . . She found the work satisfac- tory." When Hendricks was asked what was the hospital's 4 Veronte stated Wills was his "superior," (tr. p 140 ) and Dr. Widroe "boss" of the four hospitals which Community Psychiatric Centers operated Medical Director, testified that Wills was "the number one man" and the in Northern California. WALNUT CREEK HOSPITAL 661 policy with respect to warnings being given employees prior to their discharge, she answered that the policy of Community Psychiatric Centers was to give employees three warnings prior to terminating them but "Mr. Veronte told me [in September or October 19721 we would chuck the policy and do. as we pleased...." Raymond E. Veronte has been employed as administra- tor of the Walnut Creek Hospital from January 1972 to the present time . He testified it was not until February 18, 1973, that he learned from . Gavello, an employee, that there was union activity on the premises of the hospital. Veronte denied he knew Schmaljohann was a union proponent. Unknown . to Schmaljohann, an offer of employment to commence on January 8, 1973, was made to Frances Slate on December 14 for her to, replace Schmaljohann. Veronte testified that he became dissatis- fied with Schmal'ohann in October and he decided to discharge her on ember 14 because of her "inability to get along with the Medical Director, Dr. Widroe" and "I felt that I had a more than adequate replacement " in Slate. Also, continued Veronte, "There had been times when Mrs. Schmaljohann just wasn't able to do the work," and he was unable to trust her. The basis for this lack of trust was not clearly explained by Veronte, other than an obfuscated justification which reads as follows : "I didn't feel that she would not 'convey the information on to Mrs. Hendricks, and Mrs. Hendricks plays an important part in this, because Mrs. Hendricks was going to be terminated as soon as an adequate replacement could be found. Since there was such a close relationship between Mrs. Schmaljo- hann and Mrs. Hendricks.". When asked what occurred between October and December 14, which caused him to recommend Schmaljo- hann's termination, he answered: "Well, this thing that was happening with Mr. Wills and the Business Manager, who is reporting to him, going around me without my knowledge. It just kept building up and at that time, I would say, I started looking for a replacement. As a matter of fact, Mrs. Slate came in and I talked to her and, at the time, she was referred to me by Mrs. Hendricks ... this probably was in November sometime ... And I told her we did not have any openings. Just a few weeks after that, I felt we should make a replacement... " Veronte then asked Slate to come to his office for an interview which eventuated in her being hired in January to replace Schmaljohann who was fired on January 5. On cross-examination Veronte stated that the reason for discharging Schmaljohann "was the lack of confidence that I had in her loyalty to me, to pass the information on that I wanted to give her, or the information that would be made available to her, and keep it within just us, in other words, and when my position was being threatened and she was passing information on to one of the people who was threatening my job , as Administrator, I 'felt that her position ' was untenable." When Veronte was asked if he told Wills, whom he described by his own testimony as his "superior," the reasons stated above for deciding to discharge Schmaljohann, he incredibly answered : "I can't recall exactly what I told him." He then went on to allege that he gave his reasons to Widroe, the medical director, and Hendler, the director of nurses, but not to his "superior" because, "part of the problem that arises in communicating with Mr. Wills is he was part of the problem. In other words, he was going behind my back, I felt, to the business manager [Hendricks) and trying to disrupt Walnut Creek Hospital .... Mr. Wills entered into it because he was trying to get me fired, so if [Schmaljohann is) reporting to him and Mrs. Hendricks, who is working for me, who is going around me and reporting to Mr. Wills, who is the acting regional administrator, I had no choice but to get rid of those people who were not loyal to me... Veronte never informed Schmaljohann that he was dissatisfied with the quality of her work nor warned her that he was going to terminate her. The only time Veronte discussed her work with her was when he interviewed her on October 28, at the time she received her 90-day evaluation report and he recommended a pay raise for her. These objective factors show that he had no substantive complaints about the quality of her work. Dr. Harvey Widroe, medical director of the Respon- dent hospital, testified that Schmaljohann's transcriptions of letters and data that went into the medical charts was "sloppy and on a number of ' occasions actually needed to be retyped. Second, I felt that the volume of material produced was not produced at an adequate rate . In other words, that her production was too slow ... [she] was deficient: whether one would call it lack of maturity, poor judgment, lack of common sense, it seemed to be a repeated deficit." Widroe continued - that he . became "exasperated" in the "middle of November" and he "insisted" that she be "terminated." Significant is Ver- onte's testimony that he did not decide to fire Schmaljo- hann until December 14, a month after Widroe "insisted" that she be terminated, and it was not until 2 months later that she eventually was discharged on January 5, 1973. Although Veronte's prime motivating basis for firing Schmaljohann was her alleged disloyalty, it is noteworthy that when Widroe was asked on his direct examination whether Veronte ever complained to him that he did not "trust" her, he answered: "No, I don't remember anything of that sort." Another salient consideration elicited on cross-examination, is Widroe's testimony that he com- plained to Veronte as early as August about Schmaljo- hann's alleged inadequacies but that he never put these complaints in writing even though it is not too unreasona- ble to assume Widroe was consulted by Veronte when he prepared her satisfactory evaluation report of October 27. Cogently probative of the invalidity of the reasons ascribed for Schmaljohann's discharge is Widroe's admission that he never discussed her alleged deficiencies with Hendricks, who was Schmaljohann's immediate supervisor and to whom she was directly responsible for the quality of her work. Furthermore, Schmaljohann testified that Dr. Widroe never complained or informed her that he was dissatisfied with her work. Credibility-Discussion-Conclusions 'The testimony of Veronte and Widroe has been carefully 662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD considered and their demeanor on the witness stand observed and it is concluded that their testimony alleging Schmaljohann was discharged for valid reasons and not because of her union activities is not worthy of belief.5 The Respondent, of course, believes otherwise. This diversity of views raises an issue of credibility which is resolved in favor of the versions told by the General Counsel's witnesses . Based upon the foregoing recital of the facts in this case and upon the substantial evidence on the record appraised as a whole, and on the straightforward testimony of Schmaljohann, Wills, and Hendricks, the General Counsel's witnesses, Veronte's generally vague denials and unimpressive, if not, in some instances, incredible reasons given for discharging Schmaljohann are not credited. Likewise, Widroe's testimony, as indicated above and below, was ineffective to rebut the evidence elicited by the General Counsel showing that Schmaljohann's discharge was motivated, in part at least, by discriminatory consider- ations within the meaning of Section 8(a)(3) of the Act. Moreover, the witnesses for the General Counsel appeared to be sincere and truthful witnesses, and the events related by them follow a logical sequence, which are consistent with the attendant circumstances in this cases Having resolved the credibility issue as to whose version of the facts herein related shall be accepted as true, the next problem to be decided is a legal question: Whether the discharge of Schmaljohann was, in substantial and controlling part, motivated by union animus in violation of Section 8(a)(3) of the Act? In order to find a violation by an employer of Section 8(a)(3) of the Act (29 U.S.C. Section 158(a)(3)), three requirements must be met: (1) employer discrimination as to hire or tenure of employment; (2) a resulting encourage- ment or discouragement of membership in a union; and (3) antiunion motive.? In the law of labor relations, the term "discrimination" most often refers to inequality of treat- ment based upon discriminatory employment practices on the part of employers to discourage employees' organiza- tional activities for collective-bargaining purposes. Howev- er, the Act does not circumscribe an employer's right to hire, discipline, or discharge an employee for reasons not forbidden by the Act, even though the employee may be an active union adherent or advocate. The employer can hire and fire at will, so long as his action is not based on union membership or activities or intent to interfere with the purposes of the Act.8 The Respondent maintains that Schmaljohann was discharged for good cause. The record reveals otherwise. She was an efficient employee and the alleged faults ascribed to her were of a "petty" and "minor" nature. Based upon the virtually uncontradicted testimony of Wills and Hendricks, as well as Schmaljohann's satisfactory written evaluation report, it is found that the assigned 5 N.L.R.B. v. James Thompson & Co., Inc., 208 F.2d 743, 746 (C.A. 2). 6 Universal Camera Corporation v. N. L. R. B., 340 U.S. 474, 495, 496; N.L.R.B. v. Dinion Coil Company, Inc., 201 F.2d 484 (C.A. 2). 7 N.L.R.B. v. Great Dane Trailers, Inc., 388 U.S. 26, 32-33 (1967). 8 12 Labor Law Journal 325. 9 Santa Fe Drilling Company v. N.L.R.B., 416 F.2d 725, 729 (C.A. 9, 1969). Shattuck Denn Mining Corporation v. N.L. R. B., 362 F.2d 466, 470 (C.A. 9, 1966). 10 N.L.R.B. v. Miller Redwood Company, 407 F.2d 1366, 1369 (C.A. 9, 1969), citing Universal Camera Corporation v. N. L. R. B., 340 U.S. 474 at 488. reasons for discharging her were pretextual, and that Respondent discharged Schmaljohann because of her union activity and in order to rid itself of a leading union adherent. Thus, the crucial issue is one of fact: What was the actual motive for the discharge?9 Because the issue is one of subjective intent, direct evidence is rarely obtaina- ble and consequently the trier of the facts "may rely on circumstantial as well as direct evidence and his inference and finding on motivation must prevail where it is reasonable and supported by substantial evidence on the record considered as a whole." 10 Here the evidence supports the inference that the Respondent discharged Schmaljohann because it had learned that'she was in the forefront of union activities and the person to whom the employees turned for information and advice because of her membership in the Union herein and her knowledge of what they might expect in wages and other benefits if they voted in the Union based upon her experience when she worked at another hospital in the area whose employees were represented by the same union. Moreover, Veronte was well aware that Schmaljohann was a union proponent as Hendricks, her supervisor, not only told Veronte this but she also suggested to him that Schmaljohann should be terminated." On January 6, 1973, 1 day after Schmaljohann's discharge, Veronte interrogat- ed Moerer about union activities at the hospital. In consequence, Veronte not only knew of Schmaljohann's union activities at the time he summarily discharged her on her payday with no advance notice or severance pay, but also in conjunction with his union hostility, it is evident that in appraising the conflicting evidence as to the reason for her discharge, the evidence preponderates in favor of a finding that proscribed motives, namely, Schmaljohann's protected and concerted activities, were the significant and controlling determinant in the Respondent's decision to discharge her, and the legitimate business considerations, based on her alleged shortcomings, were pretexts to cloak the true ground for the discharge.12 Furthermore; the timing and precipitous nature of her discharge, as well as Respondent's union animus, are additional factors from which an inference of unlawful discrimination may be drawn. "Coincidence in union activity and discharge renders an employer vulnerable .. " 13 This is particularly so where, as here, Schmaljo- hann was never given any warning prior to her discharge. Finally, Veronte's shifting reasons for explaining his decision to fire Schmaljohann, are often indicative of a discriminatory intent.14 For instance, his vague answer to her question asking the reason for her discharge, as related by the credited testimony of Schmaljohann when he told her: "It's many things ... I can't put my finger on any 11 On cross-examination, Veronte acknowledged that the Union herein was negotiating in October with the Belmont Hospital in Northern California, also owned by Community Psychiatric Centers. 12 N.L.R.B. v. Whitin Machine Works, 204 F.2d 883. 885 (C.A. I). 1:1 N.L.R.B. v. Council Manufacturing Corporation, 334 F.2d 161, 164 (C.A. 8. 1964). Accord: Signal Oil and Gas Co. v. N.L.R.B., 390 F.2d 338, 342 (C.A. 9, 1968); N.L.R.B. v. Tri-State Stores, Inc., 477 F.2d 204 (C.A. 9, 1972). 14 Dant & Russell Ltd., 92 NLRB 307, 320 ; Intertown Corp., 90 NLRB 1145. 1148. WALNUT CREEK HOSPITAL 663 one certain thing...." and then telling her that he and Dr. Widroe believed her to be disloyal and not trustwor- thy.15 In addition , Veronte charged her with failing to stamp the mail as it was received , which he himself described as "petty." Contradictory of his alleged reason that Schmaljohann was inefficient is his offer during her exit interview that he would be happy to recommend her for another job as she was a "superior worker ." This is not the normal reaction of an employer who accuses his employee of being disloyal and inefficient . Belieing the truth of Veronte's assertion is not only the corroborative testimony of Hendricks and Wills that Schmaljohann was both a loyal and satisfactory employee, but also her October 27 evaluation report and pay raise on November 1. The giving of contradictory reasons may, of course, be considered in determining the real motive,16 and inconsis- tent explanations are a circumstance indicating the motivation.17 Then too, Veronte gave other reasons at the trial for her discharge which he did not mention to either Schmaljohann or Wiils.18 I view as afterthoughts the other reasons which Veronte raised for the first time at the trial and not at the time when he discharged Schmaljohann.19 For all these reasons, Respondent's discharge of Schmaljo- hann is found to be motivated, at least in part, by union animus, and therefore, is an unfair labor practice within the meaning of Section 8(a)(3) of the Act. C. The Alleged Violations of Section 8(a)(l) The General Counsel alleges that Respondent violated Section 8(a) (1) of the Act, when Respondent, by Raymond Veronte and Grace Ingram, interrogated and granted employees additional holidays, pay raises, and created the impression that employees were under surveillance. The uncontradicted evidence reveals that Veronte asked Lucille Moerer on January 6, 1973, if she had talked to union representatives to which she replied she had not. Moerer did testify that on February 16, 1973, she had signed "a petition" on behalf of Local 250, the Union herein. On February 20, Moerer testified that she turned over to Veronte literature which the Union had given her and that he then inquired if she had signed "anything" to which she replied in the negative . Veronte stated that Bugnatto, an employee, had told him that she had, and Ingram, another employee, also told him the same thing. Moerer continued that Bugnatto told her on April 16, 1973, that he had attended a "department heads" meeting and Veronte stated that if the Union got in there would be a strike and he asked the, department heads to be on the lookout for employees in the event that the hospital's personnel went out on strike 20 15 Both Hendricks and Schmaljohann testified that on the evening of January 5, 1973, after Veronte discharged her, she phoned Hendricks from her home, and told her she had seen an application at the office by someone who had applied for Hendrick's job. It is uncontroverted that Schmaljohann was authorized to open mail which was not marked confidential. 16 N.L.R.B. v. Condenser Corporation of America, 128 F.2d 67 (C.A. 3). 17 N. L.R.B. v. Somerset Shoe Company, Ill F.2d 681 (C.A. 1). 18 Based upon the evidence in this case, little credence is ascribed to Respondent's charge that Schmaljohann disregarded the importance of maintaining confidential information. The record fails to reveal any corroboration of Respondent's contention that Schmaljohann had "extreme difficulty" in dealing with doctors or that her maintenance of charts and Moerer also testified that Veronte told her that Local 250 was not a "good" Union and that another hospital's employees "were voting to negotiate to go out of the Union because they were a bad Union and he didn 't want to see us get mixed up with something like that. And I asked him what they had done that was bad but he never gave me any reason why they were bad." Moerer also asked Veronte whether it was true tlillt the hospital would not negotiate with the Union to which Veronte replied that they did not have "to accept the Union" and that if it was selected by the employees in the impending election "some good valued employees would quit and he didn't want to lose them." Synthia Gail Berger was employed as a cook by Respondent from April 1972 to May 1973. She corroborat- ed some of Moerer's testimony. Berger testified that on February 26, 1973, Grace Ingram, whom she described as directing her work, asked her if she had "signed any papers to do with the Union" to which she replied, "it was not any of her concern." Ingram demanded an answer whereupon Berger told her that she had. On March 1 , 1973, Berger received a salary increase and an additional paid holiday. It would appear that Veronte was hostile to union activity in the hospital as evidenced by his discharge of Schmaljohann and his describing the Union as "bad" and stating that the Respondent did not have to accept the Union. In this context, therefore, when Veronte questioned Moerer as to whether she talked to union representatives on the hospital premises and whether she had signed a petition circulated by the Union among the employees, he thereby engaged in proscribed conduct . It is found, accordingly, that Veronte unlawfully interrogated Moerer in violation of Section 8(a)(l) of the Act.21 On March 1 , 1973, 1 day before the Union filed its representation petition on March 2, the Respondent notified all of its personnel of "salary changes" effective March 1, 1973, and the granting to them of one additional paid holiday, provided they had been employed full time for 90 days. The Act does not require an employer pending an election to refrain from making economically motivated decisions involving business matters or any changes in working conditions necessary to the continual and orderly operations of its business, absent a promise of benefits conditioned upon rejection of the Union and/or any causal connection between such changes and the rights accorded to employees by the Act. Normal business decisions must continue to be made and frequently are necessary for the efficient operation of an enterprise , even though it occurs during an organizational campaign.22 The burden of proof is on the General Counsel to establish and sustain the allegations of his complaint by a records was not satisfactory. 19 Peoples Motor Express, Inc. v. N.LR.B., 165 F.2d 903. 905-906 (C.A. 4). 20 Bugnatto was described as "the head housekeeper" who took care of the diningroom floors and assigned work to other employees, as well as maintenance of the hospital kitchen and "grounds," and "other parts of the hospital." Bugnatto .voted at the election conducted by the Board on April 21, 1973. 21 Brake Parts Co., 178 NLRB 247, 252-253. 22 N.LR.B. v. W.T. Grant Company, 208 F.2d 710, 712 (C.A. 4); Burns Brick Company, 80 NLRB 389.391. 664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD preponderance of the probative and credible evidence, and when it is charged these benefits were granted to Respondent's employees under circumstances which vio- lated Section 8(a)(1) of the Act, this allegation must be established by a preponderance of the evidence that Respondent granted and announced the benefits on March 1, 1973, for the purpose of causing the employees to reject the Union. I am not convinced that the General Counsel has established this. Accordingly, this allegation of the complaint will be dismissed. It is alleged that Grace Ingram interrogated and engaged in surveillance in violation of Section 8(a)(1) of the Act. Other than a passing reference to Ingram as being "head" of the dietary department, there was no evidence elicited by the General Counsel either to show that Respondent was liable for any proscribed conduct of Ingram vis a vis the employees or that she was acting for Respondent. Accordingly, the General Counsel has not proven by a preponderance of the evidence that Grace Ingram was held out by Respondent as its agent 23 or was acting as Respondent's agent or was authorized by Respondent to do those acts alleged in the complaint. As such burden is upon the General Counsel, there has been a failure of proof to impute Ingram's alleged conduct to Respondent. Moreover, there is not a scintilla of evidence with respect to alleged surveillance on the part of the Respondent. Accordingly, it will be recommended that these allegations in the complaint be dismissed. III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth 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 of commerce. Upon the foregoing findings and conclusions, there are hereby made the following: CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. The Union, Hospital and Institutional Workers Union, Local 250, Service Employees International Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By interfering with, restraining, and coercing the employees in the exercise of the rights guaranteed in Section 7 of the Act, as specified in this Decision, the Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. By discriminating with regard to the hire and tenure of employment of Roberta A. Schmaljohann, Respondent 23 Cf. Tyler Pipe Company, 171 NLRB 308, 309. 24 In the event no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regulations, the findings, conclusions, recommenda- tions, and recommended Order herein shall, as provided in Sec. 102.48 of said Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be waived discouraged membership in the aforementioned Union and committed unfair labor practices within the meaning of Section 8(a)(3) of the Act. 5. The allegations of paragraphs VII, (b), (c), (d), (e), (f), and (g) of the complaint are dismissed. THE REMEDY It is recommended that the Respondent cease and desist from violating Section 8(a)(1) and (3) of the Act, and that it offer reinstatement to Roberta Schmaljohann to the position she held on January 6, 1973, and that it reimburse her for any loss of earnings suffered by reason of the discrimination against her, by paying to her a sum of money equal to the amount she would have earned from January 6, 1973, until such discrimination has been fully eradicated, less her net earnings during the period of such discrimination, with said reimbursement to be computed as provided in F. W Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. Upon the foregoing findings of fact, conclusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, there is issued the following recommended: ORDER 24 Respondent, Walnut Creek Psychiatric Hospital d/b/a Walnut Creek Hospital, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discriminatorily discharging its employees or other- wise discriminating against any employee because of his or her activity on behalf of, or membership in, Hospital and Institutional Workers Union, Local 250, Service Employ- ees International Union, AFL-CIO, or any other labor organization. (b) Interrogating employees with respect to their union membership or activities. (c) In any other manner interfering with , restraining, or coercing its employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Make whole Roberta A. Schmaljohann in the manner set forth in the section of this Decision entitled "The Remedy" for losses she suffered as a result of her discharge. (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, personnel records and reports, and all other records necessary to analyze the amount of backpay due and rights of employment under the terms of this Decision. (c) Post at its hospital in Walnut Creek, California, copies of the attached notice marked "Appendix." 25 Copies of said notice on forms provided by the Regional Director for Region 20 shall, after being duly signed by for all purposes. 25 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 read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." WALNUT CREEK HOSPITAL 665 Respondent , be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 20, in writing, within 20 days from the date of the receipt of this Decision, what steps Respondent has taken to comply herewith.