The Youngstown Osteopathic Hospital Association

574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Youngstown Osteopathic Hospital Association and Pamela Yacoub Case 8-CA-9155 June 10, 1976 DECISION AND ORDER By MEMBERS FANNING, PENELLO, AND WALTHER On October 16, 1975, Administrative Law Judge Eugene George Goslee issued the attached Decision in this proceeding Thereafter, the General Counsel filed exceptions and a supporting brief Pursuant to the provisions of Section 3(b) of the National Labor 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 at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge only to the extent consistent herewith The Administrative Law Judge found that the General Counsel did not prove by a preponderance of the evidence that Pamela Yacoub was discharged because of her protected concerted activity in viola- tion of Section 8(a)(1), he dismissed the complaint The General Counsel excepts, contending the record is clear that Yacoub was terminated in whole or at least in part because of her protected concerted ac- tivity We find merit in the General Counsel's excep- tions Yacoub, a welfare billing clerk, was hired on May 8, 1974 In September or October 1974 she was com- plimented on her work by Fine, Respondent's execu- tive director, and given a quality increase Beginning in January 1975, however, Yacoub by her own ad- mission fell behind in the billing of welfare accounts Yacoub's dereliction did not go unnoticed, however, for as early as January 1975, employee Fabian, after hearing complaints about Yacoub's leaving the office and not doing her work, reported the problem to Mrs McGinnes, the office manager and Yacoub's immediate supervisor Fabian also reported the prob- lem to Hamrock, the payroll clerk, and showed Ham- rock examples of Yacoub's failure to bill welfare ac- counts timely Hamrock, 6 weeks to 2 months before April 3, 1975 1 (the date of Yacoub's discharge), brought the matter to the attention of Fine, and told him that approximately 500 welfare accounts had not been billed In spite of this serious complaint Fine did nothing about the situation for the next 2 months ' All dates are 1975 unless otherwise noted At the end of March, Fine told Respondent's con- troller, Henshaw, to investigate some problems with welfare billing Henshaw did so and found that al- though Yacoub was behind there was not an exces- sive number of unbilled accounts on her desk On March 29, prior to the quarterly check of welfare accounts made by Fine's secretary and prior to the time when Fine allegedly decided to fire Yacoub, Henshaw called Yacoub into his office and asked her why she was behind in her work According to the uncontradicted evidence Henshaw did not mention termination, but indicated only that Fine was putting some pressure on him about billing problems Ya- coub explained her marital problems to Henshaw and asked if Fine would accept such an explanation, Henshaw said he did not know On April 1, Fine's secretary found that 300-400 of Yacoub's welfare accounts had not been billed and so informed Henshaw and Fine On April 1, as a result of this report, and not before, as erroneously found by the Administrative Law Judge, Fine pur- portedly told Henshaw to fire Yacoub In spite of Fine's order, however, Yacoub was not fired on April 1, but instead continued on with her work, Respon- dent provided no explanation as to why Yacoub was not fired on April 1 or 2 She was not fired until midday of April 3, after she had engaged in protected concerted activity On April 3 Yacoub talked to Nancy Russell, a pro- bationary employee, who had just been discharged Yacoub then complained about Russell's discharge to Union President Donatella who told her that nei- ther he nor the Union could do anything for Russell because she was a probationary employee Yacoub then returned to her desk and drafted a petition pro- testing Russell's discharge Yacoub signed it, and presented it to Donatella who expressed agreement with it, but declined to sign it "at the top" because he did not want Respondent to think it was union-spon- sored Donatella then called Theresa Shaffer, a union grievance representative, and told her about Yacoub's petition Shaffer told her supervisor, Krus- kall, about the petition in Fine's presence Fine stipu- lated on the record that he was aware of Yacoub's petition, and that he told Henshaw about it At or about 2 p in on April 3, 1975, less than 1 hour after Fine learned of the petition, Henshaw called Yacoub to his office and terminated her When Yacoub asked why, Henshaw replied that "we have already dis- cussed your being behind in your work," and added "besides we heard you circulated a petition, and that's against the Union contract " The Administrative Law Judge found that Yacoub's drafting of and attempting to circulate the 224 NLRB No 69 THE YOUNGSTOWN OSTEOPATHIC HOSPITAL ASSOC 575 petition on behalf of Russell was protected and con- certed within the meaning of Section 7 He further found that her activities were not only known to Re- spondent but were interjected by Henshaw at Yacoub's termination interview on April 3 Nonethe- less, the Administrative Law Judge rejected the Gen- eral Counsel's contention that the mention of the protected activity during the termination interview, plus the timing of the discharge and absence of prior warnings , support an 8(a)(1) discharge finding Rath- er, he found that Yacoub was discharged for cause, relying in part on events which occurred after her discharge He relied on the fact that the petition was not mentioned during the April 4 meeting of the Union's job security committee with Fine and Henshaw which was convened to discuss Yacoub's discharge He further noted that Yacoub expressed no surprise at Fine's explanation of her discharge and admitted she had been lax in her work But we are not con- vinced that these facts really bear on why Yacoub was fired, the issue herein We would not expect Fine, an attorney , to admit he fired Yacoub either in whole or in part for circulating the petition In addi- tion, the scope or subject matter of the posttermina- tion discussion was established by Fine and it is, therefore, not surprising that the subject of the peti- tion was not discussed That Yacoub admitted she had been lax in her work is likewise not determina- tive, she had so admitted to Henshaw on March 29 The question is whether her laxity was, without more, the reason for her discharge In answer to the General Counsel's contention that the lack of any prior warning to Yacoub supports the conclusion that the Respondent's asserted reason for the discharge was a pretext , the Administrative Law Judge found Yacoub was warned on March 29, and that she clearly anticipated discharge from that date In fact, the record does not support this finding As early as the beginning of February complaints were made to Fine concerning Yacoub's performance, yet no action was taken against her The first discussion of her situation occurred on March 29, and no men- tion of discharge was made Contrary to the Admin- istrative Law Judge's finding, Henshaw did not fully know "the results of Yacoub 's performance," when he talked to her on March 29, for Fine 's secretary had not made her quarterly check of welfare ac- counts Moreover, even had this information been known by Henshaw on March 29, we fail to see what difference it would have made inasmuch as the same information (that Yacoub was 500 accounts behind) had been given to Fine 2 months earlier by Ham- rock, and no action taken Why did a situation that Fine had been informed existed at least 6 weeks to 2 months before Yacoub's discharge suddenly become so critical And, if Yacoub's work deficiencies were suddenly so serious as to require terminating her midday in the middle of a pay period, why was Re- spondent willing to reinstate her only 2 weeks after her termination 9 2 In summary, Fine knew that Yacoub was 400-500 accounts behind at least 6 weeks before her dis- charge, he did nothing He did not order an investi- gation at that time Yacoub was not given a warning or even spoken to by anyone in management until about 2 months later If the matter was as critical as Respondent contends, why did Fine wait 6 or more weeks to investigate? Respondent submitted no ex- planation On March 29, Henshaw finally asked Yacoub about her work, but did not warn her that she faced termination He, in effect, asked her why she was behind On April 1, after Fine and Henshaw were informed by Fine's secretary that Yacoub was 300- 400 accounts behind, information which had been reported to Fine as much as 6 to 8 weeks earlier, Fine told Henshaw to terminate Yacoub In spite of this order Henshaw did not terminate her on April 1 or 2 Rather he waited until 2 p in on April 3, 1 hour after he and Fine learned of her petition activity Most significantly, as found by the Administrative Law Judge, Yacoub was told at the time of termination that she was being terminated partly because she had circulated the petition-"Besides we heard you were circulating a petition " Under Board precedent if part of the reason for terminating an employee is unlawful, the discharge violates the Act As the Board and the courts have so often indicated, the issue is not whether there existed grounds for discharge apart from union or protected concerted activities That the employer has ample reason for discharging an employee is of no moment An employer may discharge an employee for any reason, good or bad, so long as it is not for union or protected concerted activity Even if the discharge is based on other reasons as well, if the discharge is partly in reprisal for protected concerted activity, it is unlawful Since this was indeed the case with Ya- coub, we find her discharge violative of Section 8(a)(1) THE REMEDY Having found that Respondent has violated Sec- tion 8(a)(1) by terminating Pamela Yacoub, we shall order that it cease and desist therefrom and take cer- 2 Respondents offer to reinstate Yacoub was conditioned on her accept- ing a 3-month probationary pe-iod, such a conditional offer does not toll backpay 576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tam affirmative action to remedy the unfair labor practice and effectuate the policies of the Act Specif- ically, we shall order that Respondent offer Pamela Yacoub immediate and full reinstatement to her for- mer position or, if that job no longer exists, to a sub- stantially equivalent position, without prejudice to her seniority or other rights and privileges We shall also order that Respondent make Pamela Yacoub whole for any loss of earnings she may have suffered by payment to her of the amount she normally would have earned as wages from April 3, 1975, to the date of an offer of reinstatement, less net earnings Back- pay shall be computed on a quarterly basis in the manner set forth in F W Woolworth Company, 90 NLRB 289 (1950), and shall include the payment of interest at the rate of 6 percent per annum to be computed in the manner set forth in Isis Plumbing & Heating Co, 138 NLRB 716 (1962) CONCLUSIONS OF LAW 1 Respondent, The Youngstown Osteopathic Hospital Association, is an employer within the meaning of Section 2(2) of the Act, and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 By discharging Pamela Yacoub for engaging in protected concerted activity, Respondent has violat- ed Section 8(a)(1) of the Act 3 The aforesaid unfair labor practice is an unfair labor practice within the meaning 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 Re- lations Board hereby orders that the Respondent, The Youngstown Osteopathic Hospital Association, Youngstown, Ohio, its officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Interfering with, restraining, or coercing em- ployees by discharging employees for engaging in the protected concerted activity of drafting and circulat- ing a petition protesting another employee's dis- charge (b) In any other manner interfering with, restrain- ing, or coercing employees in the exercise of rights guaranteed in Section 7 of the Act, as amended 2 Take the following affirmative action designed to effectuate the policies of the Act (a) Offer Pamela Yacoub immediate and full rein- statement to her former position or, if that position is no longer available, to a substantially equivalent po- sition without prejudice to her seniority or other rights and privileges, and make her whole for any loss of earnings she may have suffered as a result of her discharge by Respondent 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, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order (c) Post at its place of business at Youngstown, Ohio, copies of the attached notice marked "Appen- dix " 3 Copies of said notice, on forms provided by the Regional Director for Region 8, after being duly signed by Respondent's representative, shall be post- ed 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 8, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply here- with 3In the event that this 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 " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing in which all sides had the opportunity to present their evidence, the National Labor Rela- tions Board has found that we have violated the law and has ordered us to post this notice WE WILL NOT interfere with, restrain, or coerce our employees by discharging them for engaging in the protected concerted activity of drafting and circulating a petition protesting the dis- charge of a fellow employee WE WILL offer Pamela Yacoub reinstatement to her former position or, if that position is no longer available, to a substantially equivalent position without prejudice to her seniority or other rights and privileges THE YOUNGSTOWN OSTEOPATHIC HOSPITAL ASSOC 577 WE WILL make Pamela Yacoub whole for any loss of earnings she may have suffered as a re- sult of our unlawful action against her WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of rights guaranteed them by Section 7 of the National Labor Relations Act, as amend- ed THE YOUNGSTOWN OSTEOPATHIC HOSPITAL ASSOCIATION DECISION STATEMENT OF THE CASE EUGENE GEORGE GoSLEE, Administrative Law Judge This case came on to be heard before me on August 28, 1975, at Youngstown, Ohio, upon a complaint issued by the Gener- al Counsel of the National Labor Relations Board I and an answer filed by Youngstown Osteopathic Hospital Associ- ation, hereinafter sometimes called the Respondent The issues raised by the pleadings relate to whether or not the Respondent violated Section 8(a)(1) of the Act by dis- charging Pamela Yacoub because of her protected concert- ed activities Upon the entire record in this proceeding, and having observed the testimony and demeanor of the witnesses, I hereby make the following 2 FINDINGS OF FACT AND CONCLUSIONS I JURISDICTION The complaint alleges, the answer admits, and I find that (1) the Respondent operates a nonprofit hospital at Youngstown, Ohio, (2) its gross revenues and purchases of goods in interstate commerce are sufficient to satisfy the standards for the assertion of jurisdiction, and (3) the Re- spondent is an employer within the meaning of Section 2(2) of the Act, and engaged in commerce within the mean- ing of Section 2(6) and (7) of the Act II THE UNFAIR LABOR PRACTICES ALLEGED Pamela Yacoub was first employed by the Respondent on May 8, 1974, as a welfare billing clerk in the insurance department In the course of her duties Yacoub handled billing and correspondence for State and local welfare pa- tients, as well as Bureau of Workmen's Compensation and some social agency accounts During the initial stages of her employment, Yacoub's job performance was more than satisfactory, she was complimented on her work by Ray- 1 The complaint in this proceeding was issued on June 13 1975 upon a charge filed on May 2 1975, and duly served on the Respondent on May 7 1975 2 Counsel for the General Counsel and counsel for the Respondent exer- cised the opportunity for oral argument, and both waived briefs mond Fine, the Respondent's executive director, and in September or October 1974, Yacoub was given a quality increase in compensation The record also reflects, howev- er, that during the later period of her employment there was a substantial deterioration in Yacoub's job perfor- mance, and that she dropped far behind in billing welfare accounts Jean Fabian, an insurance clerk, credibly testified that after January 1, 1975, some of the employees in the insur- ance department complained that Yacoub was leaving the office and not doing her work Fabian reported the prob- lem to Mrs McGinnis, the office manager and Yacoub's immediate supervisor Fabian also reported the problem to Mary Helen Hamrock, the payroll clerk, and showed Ham- rock examples of Yacoub's failure to timely bill welfare accounts In the period of 6 weeks to 2 months prior to April 3, 1975,3 Hamrock brought the matter to the atten- tion of Executive Director Fine, explaining Fabian's com- plaints and informing Fine that approximately 500 welfare accounts had not been billed It was Fine's practice to have his secretary check the welfare accounts during the course of each month Some- time late in March Fine told the Respondent's controller, James Henshaw, that there were some problems with wel- fare billing, and asked Henshaw to investigate Henshaw's immediate inquiry revealed no excessive number of un- billed accounts on Yacoub's desk, but after Fine's secre- tary pulled the account cards, Henshaw looked further into the matter and found 300-400 accounts that had not been billed Henshaw reported his findings to Fine shortly be- fore April 1, and Fine instructed Henshaw to terminate Yacoub About March 29, Henshaw called Yacoub to his office and asked why she was behind in her work Henshaw ex- plained that Fine was putting some pressure on him about the billing problems and he had to have information to provide Fine with the reasons Yacoub replied that, as she had told Henshaw before, she was having trouble with her marriage, that she was contemplating divorce, but was planning to quit her employment and leave Youngstown if she did not proceed with a divorce Yacoub also asked Henshaw if he thought these reasons would be acceptable to Fine, and Henshaw stated that he did not know During the lunch hour on April 3, Yacoub met employee Nancy Russell, who informed her that she had been dis- charged because she was not learning her job fast enough as a typist in the medical records department Later on the same day, Yacoub contacted Joseph Donatella, president of the Union which represents some of the Respondent's employees, including office and clerical employees Ya- coub explained the Russell discharge on the grounds that Russell had been terminated without an adequate opportu- nity to learn her job, but Donatella explained that under the terms of the bargaining agreement, there was no possi- bility of processing a grievance for a probationary employ- ee Yacoub returned to her desk and drafted a petition protesting the discharge of Russell on the grounds, factual- ly incorrect, that Russell had been discharged after a trial period of only 3 days Yacoub signed the petition and pre- 3 All dates hereinafter are in 1975 unless specified to the contrary 578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sented it to Donatella, who expressed agreement, but re- fused to sign next because he did not want the employees to believe that the petition was sponsored by the Union Yacoub returned to her desk and without attempting to obtain further signatures, put the petition in her lunch bag After the conversation with Yacoub concerning the Rus- sell petition, Donatella called Theresa Shaffer, the Union's grievance representative for the medical records depart- ment Donatella explained that Yacoub had drafted a peti- tion for the reinstatement of Nancy Russell, and Shaffer asked if it would be all right if she informed her supervisor, Delores Kruskall, about the petition Later on April 3, in the presence of Fine, Shaffer told Delores Kruskall about the petition, and Kruskall replied, "All right " Fine stipu- lated on the record in this proceeding that he was aware of the petition drafted by Yacoub on behalf of Russell, and he passed the information on to Henshaw At or about 2 p in on April 3, Henshaw requested Ya- coub to come to his office, where he informed her, "Go home, you are terminated " Yacoub expressed shock and asked why Henshaw replied, "We have already discussed your being behind in your work," and added, "Besides, we heard that you were circulating a petition, and that's against the Union contract " The foregoing findings are based upon a composite of the testimony of the witnesses presented by the General Counsel and the Respondent, and the essential facts are not seriously in contest After notification that her job was in jeopardy, Yacoub drafted a petition in protest of the discharge of Nancy Russell Yacoub's activity was both protected and concerted within the meaning of Section 7 of the Act, and her activities were known to the Respondent and interjected by Henshaw at Yacoub's termination inter- view on April 3 Although the General Counsel argues that this evidence, plus the timing of the discharge and the ab- sence of prior warnings to Yacoub about her job perfor- mance, supports a finding of discrimination, I find, for the additional reasons advanced below, that Yacoub was dis- charged for cause I have found above, based upon Yacoub's admissions and the credited testimony of other witnesses, that Yacoub's job performance during the last several months of her employment was unsatisfactory, and that a decision had been made to discharge her before she intruded into the matter of the discharge of Nancy Russell The finding that the discharge was motivated by legitimate cause, not by Yacoub's protected concerted activities, is additionally supported by events which transpired after Yacoub's dis- charge It is the Respondent's practice, apparently in accord with its collective-bargaining agreement, to afford the job security committee an opportunity to hear the facts and present opposition in the case of the termination of any employee in the bargaining unit The job security commit- tee met on April 4 concerning the discharge of Yacoub Present were Yacoub, Fine, Henshaw, and several union representatives, including the grievance representative from the insurance department Fine explained that Ya- coub was discharged because she had fallen far behind in billing welfare accounts and had caused the delay in collec- tion of substantial revenues due the Hospital According to the credited testimony of both the General Counsel's and the Respondent's witnesses, I find that Yacoub expressed no surprise at Fine's explanation for the discharge, and admitted that she had been lax in her work Yacoub ex- plained her failure to adequately perform her job on grounds of emotional problems resulting from difficulties with her marriage The record also reflects that Yacoub expressed dissatisfaction with her job, on grounds that it was not very interesting and, because welfare had rejected the Hospital, she was rejecting welfare Although Yacoub initially denied that she referred to any dislike for welfare she admitted when recalled as a witness by the Respondent that she stated that she was tired of welfare bullshit There was no mention at the job security meeting of the petition Yacoub drafted on behalf of Nancy Russell, and it was not raised by Yacoub, the Respondent, or the Union as a fac- tor in Yacoub's termination Fine did not change his decision to terminate Yacoub as a result of the meeting with the job security committee, and Yacoub filed a grievance with the Union The Union's ex- ecutive committee met with Fine, he rejected the grievance, and the Union decided not to submit the matter to arbitra- tion There is no evidence in the record that Yacoub's grievance alleged that the discharge was motivated in any part by the Nancy Russell petition, and even though Dona- tella was aware of Yacoub's activities and the contents of Henshaw's remarks on April 3, there is no evidence that the petition was mentioned when the executive committee met with Fine on the grievance After the Union's decision not to proceed to arbitration, Donatella approached Fine and asked for reconsideration of Yacoub's discharge Fine agreed to reconsider and met with Yacoub, Donatella, and Dora Marsco, Yacoub's grievance representative in the insurance department Fine asked Yacoub if she had given any thought to her job and she replied that she believed she could come back and do the work because her personal problems at home had been taken care of Because the employees in the insurance de- partment had complained about Yacoub's work habits and performance, it was agreed that Marsco would poll the em- ployees in the department to determine whether Yacoub was welcome to return to work A majority of the employ- ees voted to accept Yacoub back in the department and, on April 15, with Donatella present, Fine presented Yacoub with a written offer to return to work The essentials of Fine's offer were reinstatement on a 3-month probationary period effective April 16, but without backpay The written offer also assured Yacoub that she would retain her senior- ity, but for reasons she did not explain at the hearing, Ya- coub rejected the offer In addition to his other contentions, the General Coun- sel argues that Yacoub's inadequate job performance was not the motivating reason for her termination because of Fine's admission that it took only 2 weeks to catch up on the unbilled welfare accounts and because Henshaw gave Yacoub a postdischarge letter of recommendation for em- ployment The General Counsel further argues that the ab- sence of evidence of any prior warning to Yacoub about her performance supports a conclusion that Respondent's asserted reason for the discharge is a pretext I find no merit in these contentions THE YOUNGSTOWN OSTEOPATHIC HOSPITAL ASSOC 579 There is no evidence that Yacoub was warned about her job performance at any time prior to her meeting with Henshaw on March 29 However, on the credited testimo- ny of the witnesses, and Yacoub's admissions during the course of the hearing, there is no doubt that she was fully aware of the inadequacies of her performance, and the im- pact of delayed billings Yacoub was also aware that Fine's secretary periodically checked the welfare accounts, and as a rational human she had no reason to anticipate that her continued derelictions of duty could result in any course other than the imposition of discipline On March 29, after the results of Yacoub's performance were fully known, she was called in by Henshaw for an explanation, and her in- quiry as to whether Fine would accept her personal and emotional problems as a justification is a clear indication that she anticipated termination Fine stipulated at the hearing that he had stated in an affidavit given to the General Counsel that it required 2 weeks to catch up on the unbilled welfare accounts Rose Rothbauer, who took over Yacoub's job after the termina- tion, testified that she spent approximately 2 weeks to put a dent in the backlog, and 6 weeks to fully catch up Roth- bauer actually performed the work, and in the absence of my reason to discredit her testimony, this is the best evi- dence of the state of Yacoub's accounts Moreover, a con- trary finding would not support the General Counsel's con- tention By her own admission, some of Yacoub's unbilled welfare accounts dated back 3 to 4 or more months, and the shorter the time required to make up the backlog, the greater the weight of the evidence that Yacoub was derelict in her duties The record does reveal that on May 6, Henshaw gave Yacoub a letter addressed to "Whom It May Concern," recommending her for employment Henshaw admitted that he volunteered to give Yacoub the recommendation out of personal concern that she was the sole breadwinner for her family Henshaw also admitted that he was given a reprimand by Fine for imposing on another employer an employee who had been discharged for failure to perform her duties Balanced against the Respondent's subsequent offer to reinstate Yacoub if she expressed the willingness to perform her work, Henshaw's letter of recommendation es- tablishes nothing more than an act of personal kindness in recognition of the personal and emotional problems which contributed to Yacoub's inadequacies on the job In summary, I find and conclude that the General Coun- sel has not proved by a preponderance of the evidence that Yacoub was discharged because of her concerted protected activities In arriving at this conclusion, I have considered the timing of the discharge, the Respondent's knowledge of Yacoub's petition on behalf of Nancy Russell, and Henshaw's acknowledgment of the petition at the termina- tion interview Balanced against this evidence is uncontra- dicted evidence that Fine had determined and ordered the discharge of Yacoub before she undertook the petition, and the evidence that Fine's decision to discharge Yacoub was supported by substantial cause I have also considered the postdischarge events, and the complete absence of evi- dence that either Yacoub or the union representatives con- tended or sought to establish in thejob security committee proceedings, the grievance proceedings, or the proceedings leading to Fine's offer of reinstatement, that her discharge was motivated by any reason or consideration other than those asserted by the Hospital In addition, Fine agreed to the Union's request for reconsideration, and his offer to return Yacoub to her position was conditioned solely upon her expression of willingness to properly perform her job, with no mention of any extraneous considerations CONCLUSIONS OF LAW 1 The Respondent, the Youngstown Osteopathic Hos- pital Association, is an employer within the meaning of Section 2(2) of the Act and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 The General Counsel has not proved that the Respon- dent has violated the Act in any respect [Recommended Order for dismissal omitted from publi- cation ]