Western Clinical Laboratory, Inc.

WESTERN CLINICAL LABORATORY, INC. Western Clinical Laboratory, Inc. and United Associa- tion of Clinical Laboratory Technologists of North- ern California, affiliated with Service Employees International Union Local 22, AFL-CIO Western Clinical Laboratory, Inc. and Service Em- ployees International Union Local 22, AFL-CIO Western Clinical Laboratory, Inc. and Geraldine N. Mastin. Cases 20-CA-9521, 20-CA-9627, 20-CA- 9680, 20-CA-10104, 20-CA-10119, and 20-CA- 10165 July 27, 1976 DECISION AND ORDER By MEMBERS FANNING, PENELLO, AND WALTHER On December 22, 1975, Administrative Law Judge Stanley Gilbert issued the attached Decision in this proceeding. Thereafter, both the General Counsel and Respondent filed exceptions and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein. The General Counsel has excepted to the Adminis- trative Law Judge's dismissal of an allegation that by requiring employee Cupler to take paid vacation time for time spent at a Board hearing, under subpena, when he preferred to take leave without pay, Respon- dent violated the Act. We find merit in this excep- tion. As more fully detailed in the Administrative Law Judge's Decision, employee Cupler, a subject of other 8(a)(3) and (1) allegations herein, was subpe- naed by the General Counsel and was required to be present at the hearing for its duration. These facts were related to Respondent's supervisor, Hueners. Although Cupler only testified 1 day, he remained at the hearing throughout. Although Cupler made no request for a leave of absence for the time he attended the hearing, he marked "0" on his timecard under hours worked for the days he attended the hearing. On March 21, Chief Technologist Williamson inquired of Cupler what the zeroes meant, and was informed that Cupler did not want any pay (although he made no mention of a leave of absence). On March 28 Cupler received 725 a check covering the initial week of the hearing which compensated Cupler for the day he testified as though he had worked,' and charged the other days he had attended the hearing against his vacation time. When he questioned Williamson as to this pro- cedure, he was told it was Lab Director Keenan's decision. Williamson also told him that leaves of ab- sence for more than 1 day had to be applied for in writing. On March 31, Cupler requested in writing that he be granted leave without pay retroactively for the days he was at the hearing the previous week and for the remainder of the time necessary to complete the hearing. This request was denied by Williamson because: (a) leaves of absence in excess of I day re- quire prior approval; and (b) present demands on the laboratory staff require maximum attendance. Cupler's next paycheck also compensated him for days spent at the hearing by charging it against his vacation time.' Crediting Keenan's and Williamson's testimony concerning company policy relating to leaves of ab- sence-that they had followed such policy in regard to Cupler, and that they were not aware that Cupler was required by subpena to remain at the hearing (notwithstanding the fact that Hueners did know prior to the hearing)-the Administrative Law Judge found that charging Cupler with vacation time was not calculated to discourage him from participating in a Board hearing nor was it in reprisal for his hav- ing done so. In support of this finding, the Adminis- trative Law Judge noted that Respondent had paid all witnesses for the days they testified; that it had treated all witnesses alike; that Cupler had received leaves of absence in the past when he had no vaca- tion time, and could therefore expect to be treated the same in the future; and that Respondent no doubt would have granted the leave of absence had it known in advance of the subpena requirement. Based on the foregoing, and the fact that Cupler had in the past elected to take leave without pay after he had accepted payment for his accumulated vaca- tion time, the Administrative Law Judge rejected the General Counsel's contention that the required use of vacation time for a witness to remain at a Board hearing was so "inherently destructive of employee interests" that a violation may be found without need for proof of an underlying improper motive 7 and 1 Cupler also received regular pay for I other day he attended the hearing. Respondent gave all the witnesses their regular pay for the days on which they testified 2 Randolph, another General Counsel witness who remained at the hear- ing throughout, was similarly charged with vacation time for the days he did not testify However, he acquiesced in such procedure 3 The General Counsel compared N L R B v John Brown, et al d/b/a Brown Food Stores, 380 U S 278 (1965), N L R B v Fleetwood Trailer Co, Continued 225 NLRB No. 96 726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD found that, under the circumstances present herein, Respondent's actions were not "inherently destruc- tive of employee interests." While we agree with the Administrative Law Judge that the evidence here does not show that Re- spondent's charging Cupler with vacation time for the period he spent at the Board hearing, under sub- pena, was in reprisal for his having testified at the hearing, or was calculated to discourage him from participating in a Board hearing, nevertheless we be- lieve that Respondent's actions so interfered with Cupler's rights, and with the Board's processes, that such actions are violative of Section 8(a)(3), (4), and (1) of the Act. In order for the Board to fulfill its obligation to adequately administer the Act, it is necessary that its processes not be unjustifiably fettered by anything that precludes parties from participating in such pro- cesses free from coercion or restraint . In our opinion, forcing an employee who attends a Board hearing as a witness under subpena to use his accrued vacation time, when he would prefer to take leave without pay, amounts to such a restraint regardless of the motive behind such action. In our judgment, poten- tial witnesses will be reluctant to take the time to testify at Board hearings if they fear the loss of their accrued vacation time by doing so. Thus, the mere existence of such an apprehension would have an ad- verse effect upon the Board's ability to conduct fair and complete proceedings. Morever, although the Administrative Law Judge in this case credited Respondent 's witnesses' testimo- ny that they followed the normal company policy pertaining to the granting or denial of leaves of ab- sence, it is not clear that circumstances such as were presented herein, namely, leave to attend a hearing under force of subpena, were contemplated by Re- spondent in formulating its policy concerning leaves of absence. Indeed, Respondent's employee policy manual does not include such an occurrence as grounds for obtaining such leave. Further, although Respondent assertedly did not know that Cupler was under subpena to remain at the hearing, and denied his request for leave partially on the stated ground that "present demands on the laboratory staff require maximum attendance," it did not request that he leave the hearing and return to work. For the foregoing reasons, we find that Respondent's requirement that Cupler use his vaca- tion time for attendance at the hearing was in viola- tion of Section 8(a)(3), (4), and (1) of the Act. Inc, 389 U S 375 (1967), and N L R B v Great Dane Trailers, Inc, 388 U S 26 (1967) In order to remedy this violation, we will order Respondent to provide Cupler, upon request, leave without pay for the number of days he was required to use his vacation time to attend the Board hearing. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modified below, and hereby orders that the Respondent, West- ern Clinical Laboratory, Inc., Roseville, California, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as herein modified: Insert the following as paragraph 1(h) and reletter the subsequent paragraph accordingly: "(h) Requiring employees, against their wishes, to use vacation time while attending a National Labor Relations Board hearing under subpena." 2. Insert the following as paragraph 2(c) and relet- ter the subsequent paragraphs accordingly: "(c) Upon request, allow James Cupler to take leave without pay for the number of days he was required to use his vacation time while attending the National Labor Relations Board hearing." 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 WE WILL NOT unlawfully interrogate employ- ees about their attitudes and those of their fel- low employees toward United Association of Clinical Laboratory Technologists of Northern California, Service Employees International Union Local 22, AFL-CIO, or any other labor organization. WE WILL NOT unlawfully threaten employees that any attempt on their part to obtain union representation would be futile. WE WILL NOT unlawfully threaten the job se- curity of employees because of their adherence to the above-named Union, or any other labor organization. WE WILL NOT unlawfully solicit grievances from employees and promise to correct them in order to undermine their adherence to the WESTERN CLINICAL LABORATORY, INC 727 above-named Union, or to any other labor orga- nization. WE WILL NOT unlawfully attempt to cause other employers to terminate or otherwise disci- pline a person in its employ because he or she testified in a Board proceeding. WE WILL NOT discourage membership in the above-named Union, or any other labor organi- zation, by discriminatorily giving employees poor evaluations. WE WILL NOT discourage membership in the above-named Union, or any other labor organi- zation, by discriminating against employees in regard to hire or tenure of employment or any term or condition thereof. WE WILL NOT require employees, against their wishes, to use vacation time while attending a National Labor Relations Board hearing under subpena. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exer- cise of rights guaranteed them under Section 7 of the Act. WE WILL offer Monte Young immediate and full reinstatement to his former job or, if his job no longer exists, to a substantially equivalent po- sition, without prejudice to his seniority or other rights and privileges, and WE WILL make him whole for any loss of pay suffered by him by reason of his discriminatory discharge. WE WILL expunge from the personnel records of Monte Young and Thomas Gillespie the dis- criminatory poor job evaluations issued to them on September 26, 1974, and from the personnel records of James Cupler the discriminatory poor job evaluation issued to him on October 28, 1974. WE WILL, upon request, allow James Cupler to take leave without pay for the number of days he was required to use of his vacation time while attending the National Labor Relations Board hearing. 9627 filed by the Union on October 9, 1974, and a charge in Case 20-CA-9680 filed by the Union on October 30, 1974, and an order consolidating the aforesaid cases, a consolidated complaint with respect to said three cases was issued January 31, 1975. Said complaint, as amended dur- mg the course of the hearing , alleges that Western Clinical Laboratory, Inc., hereinafter referred to as the Respondent or WCL, violated Section 8(a)(1) and (3) of the Act. Re- spondent by its answer denies that it engaged in conduct violative of the Act as alleged. Pursuant to notice, a hearing was held in Roseville, Cali- fornia, on March 11-14, 18-21, 25-28, and April 1 and 2, 1975. Appearances were entered on behalf of all the par- ties. Based on a charge filed on April 4, 1975, in Case 20- CA-10104 by Service Employees International Union Lo- cal 22, AFL-CIO, hereinafter referred to as the Union,' a charge filed in Case 20-CA-10119 by the Union on April 9, 1975, and a charge filed in Case 20-CA-10165 by Geral- dine Mastin on April 23, 1975, as amended on May 9, 1975, and an order consolidating said three cases, a consol- idated complaint was issued with respect to said three cases on May 14, 1975. Said consolidated complaint in the latter three cases alleges that Respondent engaged in further vio- lations of Section 8 (a)(1), (3), and/or (4) of the Act. Re- spondent by its answer to the above-mentioned second consolidated complaint denies that it engaged in the unfair labor practices alleged therein. By motion dated May 16, 1975, General Counsel moved to reopen the hearing in the proceeding with respect to Cases 20-CA-9521, -9627, and -9680 and consolidate with said cases for hearing Cases 20-CA- 10104, -10119, and -10165. On May 19, 1975, 1 issued an order to show cause why the motion should not be granted. Thereafter, Re- spondent filed its opposition to said motion on May 28, 1975. On May 28, 1975 , I issued an order 2 granting Gener- al Counsel's motion and reopening the record for the pur- pose of receiving evidence relating to the second consoli- dated complaint. Pursuant to notice, a further hearing was held in Roseville, California, on July 22, 23, and 24, 1975. Briefs were timely filed by General Counsel and Respon- dent which have been fully considered. Based upon the entire record 3 in this proceeding and my observation of the witnesses as they testified, I make the following: WESTERN CLINICAL LABORATORY, INC. DECISION STATEMENT OF THE CASE STANLEY GILBERT, Administrative Law Judge: Based upon a charge filed on September 3, 1974, in Case 20-CA- 9521 by United Association of Clinical Laboratory Tech- nologists of Northern California, affiliated with Service Employees International Union Local 22, AFL-CIO, here- inafter referred to as the Union, a charge in Case 20-CA- Although the name of the labor organization differs from the name of the labor organization in the aforementioned cases, it appears that no pur- pose would be served in attempting to differentiate them and for the pur- poses of this hearing it appears appropriate to consider said labor organiza- tion as the same labor organization which was involved in the aforementioned three cases 2 Respondent requested leave to appeal said order which was denied by the Board b In reviewing the transcript , it became apparent to me that the reporter had omitted testimony between 11 13 and 14 on p 1660 This omission was called to the reporter's attention and on November 11, 1975, he submitted an addendum to the transcript of the hearing on March 26, 1975, consisting of pp 1660(a) through (u) This addendum consists of the testimony which should have been set forth between 11 13 and 14 on p 1660 (It is assumed that copies of this addendum were furnished to all the parties entitled to copies of the transcript ) This decision is predicated upon the entire tran- script of the proceedings , including the aforesaid addendum 728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT pital, WCL took over the operation of the laboratory as of July 1, 1974. It was also apparent from the final award that all of the personnel employed by the hospital in the labora- tory were to be taken over by WCL and that their terms and conditions of employment and accrued benefits would be continued by WCL. It appears, however, that many of the employees, both prior to and after the takeover of the laboratory by WCL, were concerned about their job securi- ty, terms and conditions of employment, and benefits ac- crued prior to the takeover, even though all employees were assured by WCL, at least by mid-June 1974, that they would be retained in the employ of WCL after the takeover and that there would be no changes in the terms of their employment or loss of accrued benefits. Among the personnel who were, prior to July 1, employ- ees of the hospital were Manley Williamson, chief technol- ogist, Thomas Oda, supervising medical technologist, and Gary Hueners, assistant chief technologist.5 Dr. William Keenan,' who served as the laboratory director on behalf of WCL, continued in his capacity as laboratory director after July 1, 1974. Thus, prior to July 1, all of the personnel in the laboratory except Dr. Keenan were employees of the hospital and the aforementioned supervisory personnel re- mained in their same capacities after July 1, 1974, of which the employees had been previously informed. The laboratory employees were made aware of the im- pending takeover by WCL long before July 1, 1974. In May or June, a group of the laboratory employees, includ- ing Hueners, assistant chief technologist, retained Attorney John Moger to represent them to insure that their rights were protected in the arbitration proceeding concerning the terms of the assumption by WCL of the operations of the laboratory. Sometime in June, the technologists formed an organiza- tion which they named the United Association of Clinical Laboratory Technologists of Northern California, herein referred to at times as the Association, but more often re- ferred to herein and in the proceeding as the Union. Monte Young was elected president of that organization; Kenneth Randolph was elected vice president; Lou Alves was elect- ed recording secretary; and Howard Young was elected sergeant-at-arms. On June 24, 1974, the Association filed a petition with the Board in Case 20-RC-12165 seeking an election of all medical technologists employed in the medi- cal laboratory at Roseville Community Hospital. The em- ployer named in the petition was Western Clinical Labora- tory, Inc., and the petition was signed by Monte Young as president of the Association. According to Keenan, he re- ceived a copy of said petition on or about June 24. As Western Clinical Laboratory had not, at the time of the filing of the petition, taken over the operation of the labo- ratory at Roseville Hospital, said petition was withdrawn. A new petition was filed on July 5, 1974, in Case 20-RC- 12194. Thereafter on July 17, 1974, an amended petition was filed, indicating that the Association had affiliated with Service Employees International Union, Local 22, AFL-CIO. Subsequently, pursuant to a Stipulation for Certification Upon Consent Election, and election was 5 All admitted agents and supervisors of WCL (ostensibly as of July 1, 1974) 6 An admitted agent and supervisor of WCL Respondent, a Nevada corporation with its principal of- fice in Reno, Nevada, owns, operates , and directs various medical laboratories in the States of Nevada and Califor- nia, including a laboratory in Roseville, California, which are engaged in producing medical laboratory analyses. During the past calendar year , Respondent, in the course and conduct of its business operations , received gross reve- nues in excess of $500,000. During the past calendar year, Respondent, in the course and conduct of its business op- erations, performed services across state lines valued in excess of $50,000. As is admitted by Respondent , it is, and at all times material herein has been, an employer engaged in com- merce or in operations affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED As is admitted by Respondent, the Union is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. It is also found that United Association of Clinical Laboratory Technologists of Northern California (prior to its affiliation with Local 22), which has also been referred to herein and at the hear- ing as the Union, is a labor organization within the mean- ing of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES Background Information This proceeding involves the operation by Respondent of the medical laboratory at Roseville Community Hospi- tal in Roseville, California. Prior to July 1, 1974, the said medical laboratory was owned and operated by the hospi- tal itself under a contract with WCL whereby WCL fur- nished a director and consulting pathologist and the hospi- tal furnished the physical plant, equipment, supplies, and personnel.4 It appears that, based upon an "opinion by the Attorney General," there was a question as to the validity of the contract between the hospital and WCL. As a result the two entities engaged in negotiations with respect to the op- eration of the laboratory. When an impasse developed in the negotiations, the parties submitted the matter to arbi- tration. In the late spring of 1974, it became apparent, as a result of the release of an interim award by the arbitrator, the WCL would take over the complete operation of the laboratory. Although the final award was not issued until August 27, 1974, by agreement between WCL and the hos- 4 There are references in the record to an entity named Physicians Con- sulting Laboratories Although it appears that said Physicians Consulting Laboratories and WCL are two separate entities performing different func- tions, the parties have stipulated for the purpose of this proceeding only that one may be considered the alter ego of the other and that all references to either entity may be designated as Western Clinical Laboratory, Inc WESTERN CLINICAL LABORATORY, INC. 729 conducted on August 2, 1974, in a unit of all medical tech- nologists employed in the medical laboratory at Roseville Community Hospital. The official tally of ballots of the election shows that, of approximately 14 eligible voters, 7 cast ballots for and 5 cast ballots against the Petitioner. There were three challenged ballots which were sufficient in number to affect the results of the election. On August 9, 1974, the Respondent filed its objections to the election. On February 3, 1975, the Regional Director issued a Re- port on Challenged Ballots and Objections to Election, Or- der and Notice of Hearing, to which exceptions were filed with the Board. I have not been informed of any further developments in Case 20-RC-12194. The Allegations of Unfair Labor Practices Following is set forth the unfair labor practices alleged in the two consolidated complaints herein: (a) On or about June 27, 1974, Respondent unlawfully interrogated employees, threatened them with reprisals be- cause of their union activity, and unlawfully solicited griev- ances from them in order to undermine their support for the Union. (b) On or about July 2, Respondent unlawfully threat- ened employees with reprisals because of their union activ- ity. (c) On or about July 28, Respondent unlawfully solic- ited employees to bargain through the Association and to drop the Association's affiliation with Local 22. (d) On or about Auguat 26, 1974, Respondent unlawful- ly issued a written reprimand to Kenneth Randolph. (e) On or about August 28, 1974, Respondent unlawful- ly issued a written reprimand to James Cupler. (f) On or about September 10, 1974, Respondent unlaw- fully terminated Cupler's overtime work because of his membership in or activities on behalf of the Union. (g) On or about the dates set forth after their respective names, the following employees were unlawfully given poor job evaluations by Respondent because of member- ship in or activities on behalf of the Union: Monte Young September 26, 1974 Thomas Gillespie September 26, 1974 James Cupler October 28, 1974 Isabel Hernandez October 10, 1974 and February 5, 1975 (h) On or about October 3, 1974, Respondent discnmi- natorily discharged Thomas Gillespie. (i) On or about October 28, 1974, Respondent discrimi- natorily discharged Monte Young. (l) On several occasions commencing April 2, 1975, Re- spondent unlawfully attempted to cause the termination, discipline, or reprimand of Geraldine Mastin, an employ- ee of Roseville Community Hospital, because she gave tes- timony in the earlier hearing in this proceeding. (k) On or about April 3, 1975, Respondent unlawfully transferred Cupler and Randolph from the day shift to the evening shift. (1) On or about April 7, 1975, Respondent discriminato- rily discharged Isabel Hernandez. (m) Respondent unlawfully required Cupler to use his vacation time for the days he was required to attend the earlier hearing in this proceeding between March 11 and April 2, 1975, under a subpoena issued by counsel for the General Counsel. Following is an analysis of evidence which General Counsel and Respondent in their briefs apparently believe to be material to the issues herein. The Interviews on June 27 (Paragraphs VI(a), (b), and (c) of the First Complaint) Keenan interviewed three employees on June 27, 1974, during the course of which the General Counsel contends Respondent engaged in conduct violative of the Act (inter- rogation, threats, and solicitation of grievances ). It is noted that this was prior to the takeover of the laboratory by WCL. It appears that prior to these interviews officials of WCL held several general meetings during the month of June with the technologists in which they explained WCL's poli- cies and answered questions as to the effect of the takeover of the laboratory by WCL. Keenan testified that he was aware that there was considerable concern among the tech- nologists as to their job security and to the benefits they would have after the takeover. He testified that he had attempted to assure them during the general meetings that they would recieve the same salary rates and would contin- ue to carry forward accumulated sick time. He further tes- tified that in discussions with Williamson it was evident to both of them that the concern of the technologists had not been alleviated by the general meetings, that Williamson suggested that perhaps individual interviews might allay their apprehensions, and that he decided to start meeting with them individually on June 25. Keenan was asked whether the petition filed by the Association on June 24 had anything to do with his decision to meet with individu- al technologists. His answer to that question was as fol- lows: Well, certainly the union petition stimulated me to become aware of what at that time was an unknown problem to me. I would say that the union petition underscored a lack of communication that was not apparent to me before. I was not aware of the appre- hension of the technologists was such that they would take a special effort to form an organization. Keenan further testified that he talked to all the technolo- gists individually (apparently between June 25 and 27) ex- cept Howard Young and Monte Young, who were on vaca- tion at the time, but that he talked to them at the first opportunity after they returned. It appears that the first of the interviews which General Counsel contends gave rise to the unfair labor practices alleged was the interview with Randolph on June 27. Ran- dolph testified that Keenan began the conversation by ask- ing Williamson and Hueners, who were both present, if there was anything they wanted to ask him; that Wil- liamson told him "that they needed a list of the names of the members in the Union." (It is noted that at the time the Association apparently had not as yet become affiliated 730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with Local 22.) Randolph further testified that he answered that he did not think it was necessary for the Respondent to have that information, "that all they needed was to know that the majority of the technologists were repre- sented." Randolph further testified that Keenan asked him if he wanted to be treated as a laborer and that he replied that he believed the technologists already were being treat- ed as laborers. Randolph further testified that Keenan told him that he had a letter from the NLRB and would he want him (Keenan) to post it, to which he replied that he thought so. Randolph also testified that the interview con- cluded as follows: A. I said that I didn't think that this union should have any negative effects on his organization. If any- thing, it should have nothing but positive effects. Dr. Keenan then said, "There will be no effect at all. That will be all." Q. And that ended the conversation. A. Right. Williamson testified that he was present at Randolph's interview but was called away midway through it. Wil- liamson further testified that he did not hear Keenan make any statement about a union to Randolph; he did not tell Randolph that they needed a list of the union members; and there was no conversation about the technologists being treated as laborers or discussion "about the Union" between Keenan and Randolph. As stated above, Wil- liamson was not present during the entire interview, and it is further noted that Keenan testified that in his interview with Randolph "there was some kind of general discussion of the Union." Hueners testified that he was present at the interview with Randolph; Keenan asked Randolph if he understood the arbitration agreement and if he had any problems with it, but he did not recall what Randolph's response was; there was no discussion about unions; Williamson did not say to Randolph "that they needed a list of members of the Union"; Keenan did not ask Randolph if he wanted to be treated as a laborer; and Keenan did not ask Randolph if he wanted him to post the notice from the NLRB. Keenan testified that he had no recollection of Wil- liamson asking for a list of union members and that if he had said something like that, he "would have thrown him out of the office." Keenan further testified that he did not recall asking Randolph if he wanted to be treated as a laborer, but that he did indicate his opinion that medical technologists were professional people and that he might have made a comparison between professional persons and laborers; that he did not recall Randolph saying that tech- nologists were treated as laborers; and that he did not re- call discussing the matter of posting the material that he had received from the NLRB. Prior to the next interview, Cupler made a telephone call to John Moger, who had been hired as an attorney by some of the technicians, as aforementioned, and told him that Keenan was interviewing the technologists individually and Moger in turn called Richard Will, who also entered his appearance herein on behalf of the Union, and asked him to go out to the laboratory and check into the prob- lem. Will met with Keenan and both of them testified that they had a conversation prior to Keenan's further inter- views of the technologists. Will's testimony of the conver- sation is as follows: A. I informed Dr. Keenan who I was and that I was out there on behalf of John Moger and was repre- senting people who were organizing a union there. Dr. Keenan then began to discuss with me or he began to talk to me about his feelings about a union. Q. Would you tell us what he said in that regard? A. He said that he had completely negative feelings about a union; that he did not want a union in West- em Clinical Lab; that he did not see the need for a union in Western Clinical Lab; that there would not be a union in Western Clinical Lab if he could do anything at all about it. He said that there were many ways to stop this union and that he held all the cards. He mentioned some of the ways. He mentioned that he could bring in workers from across the street, if necessary. Across the street, I believe he made refer- ence to the fact that that referred to another lab which he owned or was in control of. I was aware that there was another lab that he controlled across the street, so I did understand what he meant. He also said that he could in fact just close the whole lab in order to prevent the union coming in. His feelings were that strong. It should be noted at this point that the General Counsel appropriately represented that the foregoing testimony was not being presented as evidence of an unfair labor practice. However, it was received as evidence of Keenan's state of mind and has been considered in evaluating the record. In addition, Will testified that Keenan stated to him that he did not see any reason for having the "Union" and ex- plained why he did not believe that the workers needed a union. Keenan did not contradict any of the foregoing tes- timony of Will and therefore it is credited. Keenan testified, and his testimony is credited, that Will asked him if he could be present when he talked to the technologists. Keenan further credibly testified as follows: I told him I would like him to be present. I told him that I would like him-he was concerned that perhaps something improper was being done. And, I told him if there was anything I said or did that he felt was improper during my interviews with the personnel to immediately call that to my attention and without ar- gumentation, I would decline or desist in what I was discussing. The next interview by Keenan was with Cupler, and Will, Williamson, and Hueners were also present during the interview. Cupler testified as to the interview as fol- lows: A. Yes. Dr. Keenan wanted to know if I personally had any problems with him, had he not always been fair with me, were there any other problems in the laboratory that might have brought on the NLRB no- tification. I told Dr. Keenan that there were some problems in the laboratory and that he had a communication problem with the technologists, such as when asked WESTERN CLINICAL LABORATORY, INC. 731 about benefits, that they had not been specific with us. They had been evasive about things or noncommittal, that they would take care of us, etc. Q. That is what you told Dr. Keenan were the problems? A. Yes. Q. Do you recall what Dr. Keenan's response was to that? A. I believe Dr. Keenan mentioned something about the union activity and the conversation turned to-was directed to Mr. Will. And, at that time Dr. Keenan stated to Mr. Will-however, he was looking at me. He appeared to be glaring at me. He said, there appear to be some ringleaders here and the rest are like sheep, followers. And, if we can get at the ring- leaders, we can get to the problems involved. Q. Okay. Did you have a response to that? A. I told Dr. Keenan that I felt the conversation was intimadating [sic] and that I could not be of any further help to him at that time. Cupler further testified that Keenan stated "that technolo- gists who needed a union were inferior," to which he re- sponded that he believed that they were no more than highly trained laborers and that Keenan asked him if he felt he was a laborer and he replied that he did. Will testified with respect to what occurred at Keenan's interview of Cupler. His testimony is as follows: THE WITNESS: Mr. Cupler then was asked to come in and he came in and Dr. Keenan asked him-well, he first told him that he had heard this news about there was going to be some sort of a union developed at the lab and this was the first Dr. Keenan had heard about it and, "What did you know about it?" What did Mr. Cupler know about it. Q. (By Mr. Berkowitz) Dr. Keenan asked Mr. Cup- ler that? A. Yes. I cautioned Dr. Keenan that this was the type of questioning that tends to identify who is a union member and who is into it, and at this point, I told him this was pretty coercive and that he should not be following those lines of questioning when he is going to be talking to his employees. He asked me if he could talk to his employees and I said, "They are your employees so I cannot object to your talking to them, but your conversation should not be coercive so that you affect the election." Jim did respond to that question, although I previ- ously talked to him and told him he really should not discuss his union sympathies or activities with his em- ployer but Jim responded by saying there were prob- lems at the lab. One problem he mentioned was the insecurity of the position, that he didn't really know if they were going to have their jobs, that it was an inse- cure position they were in as a result of the arbitration agreement and being transferred to work strictly for Dr. Keenan. He felt insecure. He felt insecure about his overtime. He was working quite a bit of overtime at that time and he said that he just could not be assured that he was going to have a continuing wage because the doctor was able to con- trol that. There was no security with respect to over- time. s * » s s THE WITNESS: Dr. Keenan attempted to reassure Mr. Cupler that he did not have intentions of just cutting people off of their salaries, but Mr. Cupler objected that that really was not the issue. The issue was that it was possible for Dr. Keenan to do so, if he chose and, of course, a union association or organization would provide some sort of security from that type of thing. During this meeting there was a more specific state- ment made with regard to the union also because we did talk about union in general and there was a specif- ic statement made by Dr. Keenan that he would not have a union and this was made to Mr. Cupler-that he would not have a union in Western Clinical Lab, that he just did not believe in unions and he would not have them. Keenan, in testifying as to his interview with Cupler, stated that he may have asked him if there were any prob- lems in the laboratory and that he did ask him if there were any problems in communicating with him (Keenan). His further testimony with respect to the interview is as fol- lows: Did you make the statement to Mr. Cupler that some of these techs are ringleaders and that the rest are sheep, and if you get the ringleaders you will solve the problem? A. I really don't believe I said that at all. I can't recall ever saying that. JUDGE GILBERT: Could you have said that? THE WITNESS: I doubt that. Q. (By Mr. Logar) Did you make this statement, or words to this effect: That there are technologists who need a union, and those technologists are inferior? A. No, I don't believe I said that at all. JUDGE GILBERT: Or words to that effect: That if a technologist needs a union that he is probably an infe- rior technologist? THE WITNESS: No, I don't believe that I could make that direct correlation in my mind. Keenan further testified that Cupler asked him whether he would rather deal with an association rather than a union and he replied that he certainly would. It is further noted that when questioned about his interview with Gillespie, which succeeded that with Cupler, he was asked if he re- called making a statement to the effect that he would not have a union at Western Clinical Laboratories and his an- swer was as follows: A. I could have made that statement, I don't recall making it. Q. And, in what context would you have made it, if you made that statement? A. I have made this statement many times in the past: If my treatment of the personnel is unfair to the point that they require a union, I would certainly like to get out of the management business. I have fre- quently taken this position that I feel that I try to be fair to the personnel, consequently, I would be recep- 732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tive to any reasonable discussion with professional people, so that it would not be necessary for them to require an intermediary, such as a union or even an association. Williamson testified that Keenan opened his interview with Cupler by asking him if there were any problems aris- ing in the laboratory; Keenan did not ask Cupler if he was a sympathizer with or supporter of the Union; he did not ask Cupler who the supporters of the Union were; Keenan did not say that some of the medical technologists are ring- leaders and the rest sheep and "if you get the ringleaders you will solve problems"; and Keenan did not say that technologists who needed a union were inferior. Wil- liamson was asked whether or not Will made any sugges- tions or interrupted during the conversation, and Wil- liamson testified that he did and cautioned Keenan not to pursue a line of questioning which he could not remember. Also, Williamson testified that at one point Cupler asked Keenan what he felt the difference was between an organi- zation such as American Medical Association and the union organization, and Keenan replied that there was a considerable difference. Hueners also testified with respect to the interview with Cupler and his testimony was essentially similar to that of Williamson. He also testified that Cupler told Keenan that he (Keenan) had a communication problem with the tech- nologists, and Hueners essentially made the same denials as did Williamson, particularly with respect to the refer- ence to ringleaders, that technologists who needed a union are inferior, and that Keenan did not ask for any informa- tion concerning the Union. Will also was present at the interview with Gillespie. Gillespie's testimony with respect to his interview is as fol- lows: A. Dr. Keenan asked me if I was aware of any problems in the laboratory. I said, not really. I asked, of a technical nature or a personal nature, and he said any problems that I can think of. He said, "this is something new to me and I was not aware of any problems in the laboratory." I said, I did not know of any specific problems. And, he said, "let me ask you this: do you have any- thing against me personally?" I said, "no sir, I do not have anything against you, personally." I said that he had always treated me all right and I had no problems that way. Then, we began to talk about-he asked me if I had ever been a member of a union and Mr. Will said that that was not a fair question, and Dr. Keenan said, "let me rephrase it." He said, "have you ever, outside of this establishment been a member of any union?" Again, Mr. Will said I did not have to answer it, but I said I had been a member of three unions during my working life. Dr. Keenan said, "do you know of any problems within the laboratory that we couldn't solve" meaning, to me, the technologists and he, Dr. Keenan "that we couldn't solve without outside help of a union." Again, I said that I wasn't really aware of problems. I didn't know what he was getting at, at that time. Then we talked for a few more minutes and the subject came up about I worked seven days a week. The subject came up, Dr. Keenan said, "I have a large family and I know you have a large family, and I know it is hard to make ends meet." He said, "I can see with a large family such as yours that you need to work and you can't be without a job." And, I agreed. I said, yes sir, I do. I have to work pretty steady. I can't remember anything else right now. Gillespie further testified that he made the statement to Keenan that he felt that unions were coming to the labora- tory, that it was inevitable, and that it was just a matter of time until they came to laboratories and hospitals. Will testified about the interview with Gillespie and his testimony with respect thereto is as follows: ... Mr. Gillespie came in and sat down and the doctor said something-quened something to the ef- fect that there was a union starting and, "How do you feel about unions?" I, at that point, again cautioned the doctor that this was the kind of identification of union membership or identification of the sympathy of union members that would be coercive in terms of affecting a vote, that this was unfair for him to do that. He said, "All right. Let me rephrase the question." He continued the questioning along the lines of unions but it was much more general and I don't re- member a specific question after that. Q. (By Mr. Berkowitz) Do you recall if he asked Mr. Gillespie if he was a member of any unions? A. Initially, his questions were directed to whether or not he was a member-if he was involved with the- Q. And then after that? A After that he asked about his general sympa- thies That is what it was, because initially, the ques- tion was directed specifically to him in terms of, "What do you know about this union? Are you in- volved in this? Do you know anything about this?" Then, after that, it was a general question about "Why do we need unions? How do you feel about unions?" Q. Did you object to those questions? A. Yes. The general questions, yes, I objected a sec- ond time. I said, "This still continues to be somewhat coercive" but Gil responded, so I did not continue to object. Q. Do you recall what Mr. Gillespie responded? A. Well, he responded in a general way, that unions were necessary, he felt; maybe even a necessary evil, but he felt they were necessary. Will further testified Gillespie said that the only thing that would ever solve the technologists' problem of insecurity was the Union, "that they needed a union to make their wishes known and have some authority where they could actually have some influence." He further testified that there was some discussion about the value of a patholo- WESTERN CLINICAL LABORATORY, INC 733 gists' association. He also testified that at the beginning of the conversation Keenan said to Gillespie "Gil, you have seven children so you need to keep working, don't you" and that Gillespie smiled and said "yes I do." Keenan testified with respect to the interview with Gil- lespie and denied that he asked Gillespie what he knew about the Union or whether he was a member of the Union or the Association. He did state that he asked the technolo- gists whom he interviewed what concerns they had that could not be worked out without representation by a union . Keenan further testified that he asked Gillespie if he felt intimidated and that he said he "wasn't," that he asked him if he (Keenan) treated him fairly and Gillespie an- swered, "yes," and that he asked Gillespie if he wanted to continue the discussion and Gillespie said he did not and thereupon he told him he was free to leave. Keenan further testified that he did recall that in the discussion Gillespie made some indication that he felt it was necessary to get some type of representation and "I presume union repre- sentation." In the course of his testimony, Keenan was questioned about his interviews of the technologists. His testimony with respect to those interviews is as follows: Q. All right. Now, you were asking employees what their problems were. Did you have any intention to correct those prob- lems once you found out what they were? A. Yes, sir. Q. Did you tell the employees during those meet- ings that you would try to solve whatever problems and grievances they had? A. Yes. Williamson testified that Keenan began the interview with asking Gillespie if there were any problems in any of those areas of the laboratory. Williamson further testified that Keenan did not make any statement concerning the Union or the petition that was filed; did not ask Gillespie whether he knew anything about the Union; and did not ask him if he had ever been a member of the Union. When Williamson was questioned as to whether or not Gillespie was asked if he knew of any problems that existed that cannot be solved without a union, Williamson replied that he did not remember that statement but that Keenan made a statement which he "cannot remember the context of" and Will cautioned him with regard to it. Williamson fur- ther testified that he did not hear Keenan ask Gillespie how he felt about the Union. Also, Williamson denied that Gillespie made a statement that unions were necessary to solve insecurity. Further, Williamson testified that he did not hear any mention about the number of children Gilles- pie had. Williamson did testify that he was absent from the interview for a few minutes to answer a phone call. Hueners also testified with respect to the interview. He testified that Keenan started the interview by asking whether he had any apprehensions (ostensibly about WCL's takeover of the laboratory) which Keenan could relieve him of and that Gillespie indicated that he had no problems. He did remember that Will stopped Keenan at one point but he could not remember what the line of cov- ersation was when Will stopped him. Hueners denied that Keenan asked Gillespie if he knew anything about the Union or why he thought the technologists needed a union. Hueners was asked whether Keenan asked Gillespie whether he knew of any problems that could not be han- dled without, a union and his response to the question was "not that I can remember." However, when he was asked whether Keenan could have made a statement about solv- ing problems without the necessity of the Union, he said that he was sure he would have remembered it if it had been made. Further, Hueners denied that Keenan made the statement that he would not have a union at the labora- tory. He further testified that Gillespie said very little, that he did state that he felt he had no problems, and that he understood the arbitration agreement. It is noted that there apparently was an interview with Isabel Hernandez later in the day of June 27. According to her credited testimony, she had observed that others had been called into Keenan's office and asked Williamson for a chance "on the soap box." The substance of her testimo- ny, which is credited, is that she volunteered the informa- tion to Keenan that she was a strong union sympathizer, supported the Union 100 percent, and that she believed all hospitals should be organized. There is no contention by General Counsel that the Respondent committed an unfair labor practice during her interview and it is inferred that her above-outlined testimony was introduced to show that Respondent was aware of her strong prounion sentiments (as an element of General Counsel's case with respect to Respondent's subsequent actions regarding her). Will's testimony of his conversation with Keenan is cred- ited and demonstrates Keenan's hostility toward having a bargaining representative for the employees. However, as above noted, his testimony, of itself, affords no basis for a finding of an unfair labor practice. As to the three above-mentioned interviews with Ran- dolph, Cupler, and Gillespie, aside from the considerable credibility issues raised, the Respondent also raises the le- gal issue as to whether findings of unfair labor practices with respect to them would be appropriate, inasmuch as, at the time, the persons interviewed were not in the employ of WCL and, therefore, were not employees within the mean- ing of the Act. The General Counsel, in his brief, analo- gizes them with applicants for employment and cites cases which demonstrate a well-established principle that appli- cants for employment are considered to be employees within the meaning of the Act. The Respondent, in its brief, attempts to analogize cases involving successor em- ployers, which analogy is inapplicable to the issue of whether the technologists who were interviewed could ap- propriately be considered employees within the meaning of the Act. Although at the time the technologists were on the pay- roll of the hospital, it was well understood by WCL and the technologists that they would be retained as employees by Respondent when it took over the laboratory. Consequent- ly, their relationship to the Respondent was more firmly established than mere applicants for employment. In ef- fect, they had been notified that they were hired by Re- spondent and that their employment would commence on July 1, a few days after the interviews. In the circumstances, it appears appropriate to consider 734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD them as employees within the meaning of the Act, and that any conduct which interferes with, restrains, or coerces them as to their protected activities in their future employ- ment with Respondent should be found to be violative of Section 8(a)(1) of the Act. Moreover, as pointed out by the General Counsel, Section 2(3) of the Act broadly defines the term "employee" as including "any employee, and shall not be limited to the employees of a particular employer, unless the Act explicitly states otherwise. . . ." Section 8(a)(1) of the Act does not contain such an explicit limita- tion. As to the interview with Randolph, I credit his testimony that Williamson stated that "they needed a list" of the union members. Although this testimony was denied by Williamson and Hueners and vigorously denied by Keen- an, nevertheless Randolph impressed me as the more credi- ble witness with respect to this aspect of his testimony. Based upon said credited testimony, it is found that Re- spondent unlawfully interrogated Randolph in violation of Section 8(a)(1) of the Act by seeking information as to who were "union" members. As to the interview with Cupler, I credit Will's testimony that Keenan asked Cupler what he knew about the Union and, despite Will's objection, Cupler responded by stating his reasons why he felt union representation was needed. Although Cupler did not testify that this question was asked of him, none of Respondent's witnesses categorically denied Will's testimony. Furthermore, Will impressed me as a credible witness as to what occurred at the interviews during which he was present. Based upon said credited tes- timony, it is found that Respondent unlawfully interrogat- ed Cupler in violation of Section 8(a)(1) of the Act. Fur- thermore, Will testified, and likewise I credit his testimony, that Keenan told Cupler that "he would not have a union in Western Clinical Lab." It is noted that in Keenan's testi- mony quoted above he admitted that he could have made such a statement, although in another portion of his testi- mony he denied ever making such a statement to a technol- ogist. This statement was violative of Section 8(a)(1) in that it constituted a threat that any attempt upon the part of employees to have a bargaining representative would be futile, which patently would interfere with, restrain, and coerce employees in the exercise of their Section 7 rights. As to Cupler's testimony of Keenan's statement to him about "ringleaders," it is noted that Will testified to a simi- lar statement made to him by Keenan before Cupler en- tered, that Keenan stated, "If he could identify the leaders, then he might be able to identify the problems and there might not have to be any union here at all." However, it is further noted that Will's testimony with respect to the in- terview of Cupler contained no reference to such a state- ment being made by Keenan. It appears likely that if Keenan had this would have been remembered by Will, who, as a lawyer, is trained to recognize significant state- ments made by any party. Respondent's witnesses all de- nied that Keenan made such a statement. In the circum- stances, therefore, the denials of that aspect of Cupler's testimony are credited. As to Gillespie's interview, he testified that Keenan asked him if he had ever been a member of a union and, despite Will's objection, he replied that he had been a member of three unions. Will testified that Keenan asked Gillespie about membership in the Union and what did he know about it; he cautioned Keenan about asking such questions; Keenan then asked him his feelings about unions in general; he objected again, but Gillespie re- sponded that unions were a "necessary evil"; and the tech- nologists needed a union to solve their problem of insecuri- ty. Although the above-outlined testimony was denied by Respondent's witnesses, both Williamson and Hueners tes- tified that Will voiced an objection to something that was said by Keenan but neither could remember what it was. As stated above, Will was an impressive witness and his testimony is credited. Based upon said credited testimony, it is found that Respondent unlawfully interrogated Gilles- pie in violation of Section 8(a)(1) of the Act. Gillespie further credibly testified that Keenan asked him if there was any problem "that we couldn't solve with- out outside help of a union." While Will did not testify that such a question was asked, Keenan, according to his above-quoted testimony, admitted that in his interviews of the technologists he asked them what their problems were and told them that he "would try to solve whatever prob- lems and grievances they had." Consequently, based upon the credited testimony of Gillespie and the admission of Keenan, it is found that Respondent did solicit grievances and implied that they would take care of them and it is inferred that he did so in order to undermine their desire to have a bargaining representative. Such conduct is violative of Section 8(a)(1) of the Act. Swift Produce, Inc., 203 NLRB 360 (1973); ITT Telecommunications, A Division of International Telephone and Telegraph Corporation, 183 NLRB 1129 (1970). Both Will and Gillespie testified that Keenan stated to Gillespie that he (Gillespie) had a large family and needed a job. Although Gillespie testified that the statement was made at the end of the interview and Will that it was made at the beginning, and although there was a denial that Keenan made a reference to Gillespie's family, I credit Will's and Gillespie's testimony and find that, during the course of the interview, Keenan made a reference to Gillespie's family and his need of a job. It is found that, in the context in which such a statement was made (the orga- nizational attempt, the interviewing of technologists indi- vidually, and unlawful interrogation), such a reference was a thinly veiled threat of reprisal for supporting the technol- ogists' organizational efforts in violation of Section 8(a)(1) of the Act, in that it was not a very subtle indication that the retention of his job was at the will of management. The July 1 General Meeting It appears that on July I Keenan held a general meeting with the technologists which he described as a "welcome aboard" type of meeting (ostensibly because this was the first day that WCL took over the laboratory). Monte Young testified to certain statements made by Keenan as follows: Well, Dr. Keenan started out the conversation by telling us that he was sorry about what had happened and that he didn't think we needed a union; that all of WESTERN CLINICAL LABORATORY, INC 735 our cares would be handled by Western Clinical and he felt that he could handle everything that we want- ed. He said that, because of the techs wanting a union, he felt they were going to have to do everything the union way and pathologists were going to take a great- er interest in what was going on out in the laboratory. They were going to come out in the laboratory and check because he knew there were deficiencies in all departments and that when deficiencies were found, they would have to be cleared up and we would be given a certain length of time to clear up these defi- ciencies. It is noted that, well after Young's testimony, General Counsel stated during the course of Keenan's direct exami- nation by Respondent's counsel with respect to the meet- ing that there is no allegation of an unfair labor practice with respect to said meeting. Although General Counsel refers to Young's above testimony in his brief, in the clos- ing argument contained therein he makes no contention that Respondent committed an unfair labor practice at said meeting. Therefore, Young's above-quoted testimony will be considered only for the purpose of determining whether it is probative of union animus. Medicine Bow Coal Company, 217 NLRB 931, fn. 2 (1975). Keenan, in testifying about the July 1 meeting, stated that he was reasonably certain that he announced at the meeting that he could not discuss union matters with them unless they themselves wanted to bring it to his attention. However, he did not categorically deny Young's testimony about his references to the lack of need of a union to solve their grievances. Consequently, Young's testimony with re- gard thereto is credited. Keenan further testified that he talked in general terms of general policies and procedures (of WCL) and indicated that he did not expect any radical or drastic changes in management or in the treatment of the technologists. I am not persuaded by Young' s testimo- ny that Keenan linked with his statement about the "union way," a further statement which Keenan might well have made that the supervisors were going to check on deficien- cies. Consequently, I am of the opinion that Keenan's am- biguous statement about the "union way" does not add anything to my previous finding that Keenan did harbor union animus. However, Young's credited testimony con- firms my finding that Keenan admitted that he, in effect, solicited grievances and promised redress thereof, which action I also have found was calculated to undermine the Union. Cupler-Keenan Conversation on July 2 (Paragraph VI(c) of Original Complaint) Cupler testified that on July 2 he asked to meet with Keenan and following is Cupler's testimony with regard to their conversation: A. When I went in I told Dr. Keenan that I had been involved in the union activities and that I would like to find out from him what my job status would be in the future with Western Clinical Laboratory. I told him that I had recommended the attorney for the as- sociation. And, I told him, at the present time, I could not afford to change my line of work and my daughter was getting ready to go into college in the fall, and I wanted to know where I stood there. He told me that my future employment at Roseville Community Hospital laboratory would be entirely de- pendent upon my job, the performance of my job. He said that I had some discrepancies, and these would be brought to my attention at some date. He said that we all had discrepancies and we would be given a time to correct these discrepancies and if we could not correct them by that time we would be terminated. He said that, "you will have your day in my court," and I inquired as to the other technologists and he said that would be essentially true for all of them. He told me that he absolutely could not tolerate a union and that if necessary he would replace anyone and everyone that was involved in the union. Q. At that point, was there any mention made of your daughter, who was going to college? A. Yes. I believe it was towards the end of the meeting and when I was about to leave , he made the comment to me, "Jim , for your daughter's sake, for the college, I hope that you could walk the line, be- cause I will be looking for an excuse to let you go." Dr. Keenan testified that Cupler did indicate he was in- volved with the Union, wanted to know his status, and also identified himself as the person who was responsible for calling in Will. Keenan further testified that he told Cupler that his union support or lack of support had no bearing on his job tenure; he did have some job deficiencies which could be remedied; he would have a job evaluation and would have an opportunity of challenging any aspect of it; and his job tenure depended upon his job performance. Keenan denied that he said he would not tolerate a union and if necessary would replace everybody involved. Keen- an further testified that there was a reference to Cupler's daughter and that Cupler stated that he was concerned about his job security because of her. He denied that he said that for her sake he hoped that Cupler would "walk the line," that he would be looking for an excuse to let him go. Cupler's testimony that Keenan reassured him that his future employment was "entirely dependent" upon his job performance followed by his testimony that immediately thereafter Keenan engaged in the threats relating to union adherence indicates a very unlikely reversal of Keenan's conduct of the interview. Of the two witnesses , Keenan was the more impressive as to their conversation on July 2 and therefore his version is credited. Consequently, it is found that the General Counsel has failed to prove by a prepon- derance of the evidence the allegation (a portion of par. VI(b) of the first complaint) that on July 2, 1974, Respon- dent threatened employees with reprisals because of their union activity. Conversation between Randolph and Oda Randolph testified that in the first or second week of July he had a conversation with Oda, a friend of long 736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD standing, in which Oda related to him what had occurred at a meeting of the pathologists and supervisory personnel in which they discussed what to do about the Union. There is no allegation of an unfair labor practice with respect to this conversation and the matter was not fully litigated, since neither Oda nor any of the participants at said meet- ing were questioned about the matter. Therefore, a finding of an unfair labor practice with regard thereto would be inappropriate. According to Randolph's testimony, Oda related state- ments made in the meeting with respect to actions that might be taken against the technologists in view of their seeking union representation, including: a suggestion by Keenan that they all be fired (which someone objected to); discussions as to which of them could be fired because they could easily be replaced (including Gillespie, Monte Young, Hernandez, and Cupler) or should not be fired be- cause they could not (only Randolph's name was men- tioned in this category); and a suggestion that they "make a book" on those whom they would terminate. Randolph's testimony, which is uncontradicted and is therefore cred- ited, has been considered in arriving at the findings and conclusions in this Decision. While it might be argued (which it was not) that said testimony is hearsay, I am of the opinion that it may be regarded as being of probative value. It consists of statements made to the witness by an admitted supervisor and agent of Respondent and, in any event, it was received without objection and no contradic- tory evidence was introduced. N.L R.B. v. International Union of Operating Engineers, Local Union No. 12, 413 F.2d 705 (C.A. 9, 1969). It is noted that said testimony both supports the General Counsel's case and Respondent's case. On the one hand, it tends to support General Counsel's contention that actions taken against Gillespie, Monte Young, Hernandez, and Cupler were discriminato- rily motivated and, on the other hand, it tends to support to some extent Respondent's contention that they were not highly regarded as technologists, particularly Young. Randolph's testimony of Oda's description of the meeting relating to the latter contention is as follows: A. Dr. Gregonis said that Tom Gillespie could be fired, that he was a general lab tech and was easily replaced. He said Monte Young, because Monte Young chronically complained and was not that pro- ductive, so he could be eliminated. He was a general lab tech and they are easily replaced. Isabel Hernan- dez: she is a general lab tech and is easily replaced. He mentioned Jim Cupler. At that point, Tom [Oda] intervened and said, "Why Jim Cupler?" Tom said that he thought Jim was a good medical technologist, that he did a good job in hematology. Q. (By Mr. Berkowitz) Any other names? A. Dr. Gregonis said, in answer to Tom's question, "Have you seen his CAP surveys lately?" July 19 Conversation Between Keenan and Monte Young Keenan and Young held a conversation on July 19 which lasted for approximately 6 hours. There is no allega- cure Bow Coal Company, supra tion in the complaint relating to this conversation and General Counsel made no reference to it in his brief. How- ever, testimony concerning it is set forth in considerable detail in Respondent's brief, apparently for the purpose of showing that Young's testimony should not be credited. In view of the content of Young's testimony which contains statements which would constitute unfair labor practices (if alleged) and which would demonstrate Keenan's union an- imus, it does not appear appropriate to disregard the testi- mony about said conversation, even though Young' s testi- mony, even if credited, cannot be the basis for findings of unfair labor practices.' Following are excerpts from Young's testimony of the more crucial statements he claimed Keenan made to him: A. Well, he then-I told him all of the reasons this was going on and that is why we were organizing and he said that he could never live with a union and that he would consider that any medical technologist that would join a union would be incompetent and medio- cre and that any tech of his that joined the union, he would have to consider to be incompetent. He then told me that he thought the techs were out to destroy him and I tried to explain this by telling him that was not true at'all, because if he didn't sur- vive, then we didn't survive. That was absolutely not even realistic. There was nobody out to get him. Q. Okay. And what was said next? A. He said that he had stopped the union because of-it would ruin his profit sharing. Of course, we dis- cussed that and I didn't know that unions ended profit sharing and he said it wasn't hurting him because he didn't have to pay the bill anyway, that it all came out of profit sharing. A. He then said there was no way we could win and he wished that we could stop this before it went to an election. That he hoped there would be some way to stop the election and that it did not matter if we went to election anyway because if we did and won, that he would just precipitate an action that would force us out and that he could bring in techs from outside to run the lab long enough so that we could never get a contract signed in a year. Q. In a year? Was there anything said about a one- year period? A. There was a year, he said he could beat us. That if [he] had to negotiate within a year that he could just hold out until that year was up. Young further testified that Keenan asked him if he felt he "needed a Union personally," and that he said that he did not, that he thought he had been treated fairly, but that he would vote for a union. Young also testified that Keen- an stated that he "knew who all was for the Union, there was already a list." While not all of the above testimony was categorically denied by Keenan, in effect, his testimony constituted a denial of said testimony. ' In view of the absence of any allegation relating to the incident Medi- WESTERN CLINICAL LABORATORY, INC. 737 Of the two witnesses , Young was the more persuasive as to their above-related conversation and I credit his testimo- ny. Said credited testimony demonstrates Keenan's consid- erable hostility toward having a union represent the tech- nologists and a willingness to engage in unfair labor practices in order to prevent it. Solicitation to Bargain Without the Union (Paragraph VI(d) of the First Complaint) Randolph testified that he had a meeting with Wil- liamson and Oda at Williamson's home on July 28. Randolph's testimony as to their conversation is as fol- lows: A. Yes. In that conversation, there was a discussion of what we could do to reconcile the problems with the union, the turmoil in the lab that was being caused. Bud [Williamson] and Tom [Oda] both agreed that Dr. Keenan would not negotiate a contract with the Union, but that he would be willing to negotiate a contract with our original association. JUDGE GILBERT: Who said this? THE WITNESS: Bud Williamson and Tom Oda both agreed. Q. (By Mr. Berkowitz) Okay. Did you reply to that? A. Yes. I said that I would take this suggestion back to the members of the Union and present it be- cause we did want to work with the lab; we wanted to get together and be able to work. I would present it and we would see what their feelings were and I would get back with them. Williamson also testified to the meeting at his home. Ac- cording to Williamson, the meeting was held at Randolph's request (which was not denied by Randolph). Williamson further testified that Randolph indicated "that there was doubt as to how much we [ostensibly the technologists] could rely upon the arbitration award" and that he (Ran- dolph) "felt it [the elements affecting the technologists] needed to be specified in more detail." Williamson also testified that he told Randolph that the provisions ap- peared adequate to him and that he "couldn't understand" why there was any problem, and that Randolph indicated that "he would like to see everything . . . independently listed," that he "didn't like the concept of a blanket cover- age." Williamson denied that Randolph was asked to pre- pare such a list, denied that Randolph was told that Keen- an would negotiate a contract with an association, but not with the Union, and denied that it was suggested to Ran- dolph that he prepare such an agreement. It appears that such a contract was prepared and was presented to an official of WCL at a general meeting of the technologists on or about July 31. It appears that he gave it short shift and stated that any contract would have to await the outcome of the pending election. The General Counsel contends that, through the con- duct of Williamson and Oda, Respondent violated Section 8(a)(1) of the Act by promising to recognize and enter into a contract with the Association if it abandoned its affilia- tion with Local 22. 1 find that he has failed to sustain the allegation of such a violation of the Act by a preponder- ance of the evidence, since I do not credit Randolph's above-quoted testimony as to what was stated to him at the meeting at Williamson's house. Williamson was the more impressive witness as to this incident, and the lack of inter- est on the part of Respondent in proposed contract (with only the Association) confirms my opinion that Williamson's denials of Randolph's testimony should be credited. Furthermore, since the meeting was called at Randolph's request, it does not appear likely that Wil- liamson and Oda could have been prepared to suggest that Respondent would be willing to accept the Association as the bargaining representative if it disaffiliated itself from Local 22. Since Randolph was generally a credible witness, it is quite possible that he made the suggestion and as- sumed that Williamson and Oda agreed to it. "Written Reprimands" to Randolph and Cupler (Paragraph VII of the First Complaint) On August 26 and 28, Randolph and Cupler respective- ly, received an "Inter-Office Memorandum" from Keenan on the subject of "Tardiness to Work." Each memorandum stated that it was to "document" the subject of respective previous discussions with each of them with respect to their tardiness on August 21, 22, and 23. Each memorandum further stated that "it is understood that there will be no future lateness unless under documented unusual circum- stances." Further, each memorandum requested that it be signed to indicate understanding of the memorandum and acknowledgement of the stated deficiencies. The memoran- dum to Cupler also called his attention to OSHA regula- tions prohibiting smoking in various areas of the laborato- ry (of which he had previously been advised orally). Keenan credibly testified that he had observed each of them reporting after 7 a.m. (the starting time for their shift) at times ranging from 12 minutes to 45 mintues on the 3 days indicated. The General Counsel argues that prior to the organiza- tional activities "starting times were flexible" and that smoking had been permitted in all areas of the laboratory. I am not satisfied that this argument is of much weight, since the organizational activities commenced prior to the time that WCL took over the operation of the laboratory. Also, the General Counsel argues that even after the warn- ings were issued to Randolph and Cupler, other employees continued to report to work late and smoked in the labora- tory with impunity. Again, I am not satisfied that this argu- ment is of much weight, since there is no evidence that such subsequent breaches were observed by Keenan except for one instance which was reported to him and was evi- denced by a warning memorandum about smoking issued to Omar Ahmad on October 9. General Counsel further relies on the testimony of state- ments made by Keenan with regard to the memoranda. Both Monte Young and Cupler testified that Young ac- companied Cupler to Keenan's office to discuss the warn- ing and in the ensuing conversation , when Keenan was asked why it would not be sufficient that Cupler be given an oral reprimand, Keenan replied "You guys wanted the 738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union, so we have to do this the union way." Randolph testified that on August 23, when Keenan was discussing his tardiness with him, Keenan said, "We had asked him to play it by the book and he was playing it by the book," to which he (Randolph) replied that it was all right as long as it was applied equally to everyone. Randolph further testi- fied that on August 26 Keenan made the following state- ment to him about the smoking regulations: Dr. Keenan said that these regulations apply to all of his labs, but that he could be more relaxed in the enforcement of these in his other labs because he was not playing it by the book in those labs. The General Counsel does not argue, nor will the record support a finding, that Randolph and Cupler did not re- port late on the dates in question or did not violate the smoking regulations. Keenan credibly testified that he in- formed both technologists that the memoranda should not cause them any apprehension, that they were solely to doc- ument the facts and that they (the technologists) under- stood that unwarranted tardiness and smoking in prohib- ited areas were not tolerated. Further, Keenan credibly testified as to the importance of punctual reporting for work because of the press of work at the beginning of the shift and the need to observe the regulations against smok- ing in areas of the laboratory. Additionally, Keenan denied that he made the statement about doing it "the union way." He also testified that he may have made the state- ment about "playing by the book," that he intended by the remark that he was "showing no favoritism." As to the reference about "being more relaxed in other labs," Keen- an testified that "it is possible, but unlikely" that he made such a statement, that at an earlier meeting Randolph stat- ed he wanted rules applied equally and he may have said, "You asked me to play it by the book and I am playing it by the book," meaning that he was showing no favoritism. Keenan was an impressive witness with respect to the reason for the issuance of the memoranda to Randolph and Cupler and the incidents relating thereto and his testi- mony is credited. As to the statement about "playing it by the book," I am not satisified that, in all the circumstances, it can be construed as a basis for finding that the memo- randa were discriminatorily motivated. I am of the opinion that the General Counsel has failed to prove by a prepon- derance of the evidence the allegation in paragraph VII of the first complaint. Also, as to the fact that written memo- randa were issued to them, it appears that Keenan habitu- ally wrote memoranda with respect to interviews he held. Termination of Cupler's Overtime (Paragraph VIII of the First Complaint) It appears that for some time prior to Respondent's ter- minating Cupler's working on weekends (overtime) in ad- dition to his regular weekday schedule (which he had been doing for a number of years), Cupler had been suffering from a heart problem for which he had been receiving treatment. It further appears that on Friday, August 23, he experienced pain in his chest and requested of Hueners that he be permitted to leave. Keenan credibly testified as follows with respect to a phone call from Hueners on that day concerning the incident: And, he advised me that Mr. Cupler was having a lot of discomfort, chest pain, and he said "He really looks bad, Doc, and he would like to take time off." And, I understood him to say, to get an EKG. I told him, by all means and be sure to not come back to work until he is ready. I came down to the laboratory a short time af- terwards, an hour or an hour and a half later , and said tell me about it. And, Gary said "Boy, he didn't look good at all. He was taking medication and he really looked sick. I was worried." Cupler credibly testified that on August 26 Keenan sum- moned him to his office and his credited testimony with regard thereto is as follows: ... Dr. Keenan came up to me at the microscope in the hematology area and said he would like to see me in his office . He said to me, at that time, "I under- stand you had to go home Friday with chest pains." And, I told him yes I did. He said, "Are you having any chest pains now?" And, I replied, I wasn't. He said, "I wouldn't want you to have any chest pains, but I would like to see you in my office." It appears that they then discussed his tardiness and his smoking in the laboratory and Keenan told him that he would receive a memorandum with regard thereto (the memorandum discussed hereinabove ) which he received a few days later. On September 3, Cupler and Monte Young, who had been asked by Cupler to accompany him, went into Keenan's office and discussed with him the memorandum. Following is a resume of Young's credited testimony. It appears that Cupler refused to acknowledge his tardiness and that Keenan asked Cupler if he was calling him a "liar" and said that it was a dismissible offense to dispute the integrity of a pathologist, to which Cupler replied that he was not disputing his integrity but that he did not want to admit that he had been late (as stated in the memoran- dum). Whereupon Keenan asked him if he wanted him to produce witnesses to substantiate the accusation to which Cupler replied that, if he had witnesses, "bring them in." Keenan called in Hueners and Oda, who both confirmed that Cupler had reported late. Young's testimony continued as follows: Dr. Keenan then turned to Jim and said, "What do you think about that?" Jim says, "Well , I guess if they say I am late, then, I was late." And so, Dr. Keenan said, "Do you mean to tell me that you would take the word of technologists over that of a pathologist? I really find this difficult to un- derstand," he says, "that you would question my in- tegrity." Jim said he was not questioning Dr. Keenan's integ- rity. He just went again through the whole thing, how he did not want to sign a blank statement made by Dr. Keenan. WESTERN CLINICAL LABORATORY, INC. 739 Dr. Keenan said that he thought maybe the best course of action here would be to just relieve Jim of duty, call his attorneys and see if there was in fact a good reason here for dismissal. We told Dr. Keenan at this point that we didn't think this was necessary, that just a verbal reprimand; that Jim admitted that he had been wrong and a writ- ten reprimand would have been enough. Q. Do you recall what Dr. Keenan replied to that? A. He replied that any technologist who would fal- sify his time record would falsify his tests and that, therefore, maybe Jim was not competent as a technol- ogist and, you know, this should be carried further. Q. Okay. A. So, again, we just tried to say no, we did not think that was necessary. Q. And then what happened? A. Let me think. I think with that, Jim was asked if he wanted to leave-oh, Dr. Keenan told me that he would not ac- cept that one because of what was written on the bot- tom; that Dr. Keenan would make out a new memo- randum and that Jim could sign it. He was supposed to sign it within so many days. With that, Jim left. Q. Now, before Jim left- A. Oh, I am sorry. Yes. Dr. Keenan turned to Jim and he said, "Jim, do you find this kind of stress pain- ful?" He says, "Do you find this type of interrogation and this kind of interview stressful, painful?" Jim said, "Yeah." He said, "Does this bother your heart, Jim? Does this bother you at all? Do you have heart pain from this type of interview?" Jim said, "I have chest pains without this kind of thing." Dr. Keenan said he would not want to do anything that would cause Jim pain. Q. All right. And how was-what was Dr. Keenan's tone of voice in talking to Jim in that conversation you have just related? A. He just turned right on to me, "Do you like this?", you know. It was very aggressive. Q. What about when he was discussing or asking Jim whether this interview caused him any pain? A. That is when he said, "Jim, does this cause you any pain? Do you feel any stress from this type of interview?" He just comes right after him. If you want me to say it, I think it was malicious. Q. All right. Was that Dr. Keenan's tone through that portion of the conversation you just related? Yes, it was. While the above-quoted testimony is credited, I am not convinced that I can place much reliance on Young's testi- mony as to the "malicious" manner in which Keenan ques- tioned Cupler about his heart condition. Such subjective testimony might well have been a misinterpretation of the intensity of Keenan's questioning which could have been merely a manifestation of Keenan's concern. Keenan de- rued that he spoke to Cupler in a menacing tone of voice and it is noted that he questioned Cupler about his heart condition several days prior thereto. Young further credibly testified that, after Cupler left Keenan's office, Keenan instructed Hueners to tell Wil- liamson that he was to take Cupler off weekend work. It is noted that Keenan testified that he "took personal offense" that Cupler was "essentially saying that I was not telling the truth " There is considerable testimony by Keenan which was partially corroborated by Dr. Richard Chun, who had been treating Cupler for his heart condition, that Keenan checked with Chun and other doctors and personnel as to the medical advisability of keeping Cupler on weekend work before he decided to take such action. On the other hand, there is in evidence a note dated September 7 that was signed by Chun and which had been written by Cupler's wife, a nurse at the hospital, which stated that Cupler "has shown improvement clinically . . . may work weekends 5 hours per day." Chun testified that he meant no more than 5 hours per day and a maximum of 40 hours per week, that he did not know how many hours Cupler worked dunng the week. Chun's testimony was not very persuasive and neither was Keenan's testimony about checking on the medical advisability of Cupler's working overtime before deciding to terminate Cupler' s overtime. In any event, I am not of the opinion that Keenan's and Chun's testimony is of any materiality. Rather , I am con- vinced, based upon Young's credited testimony, that, im- mediately after the interview with Cupler, Keenan made up his mind at that point to terminate Cupler's overtime and that it was motivated by Keenan's deep resentment that Cupler questioned his "integrity." Consequently, it cannot be found that it was motivated by Cupler's union adher- ence or by some protected concerted activity. While it might be said that Cupler's disputing disciplinary action would constitute protected activity, it involved only Cup- ler, and therefore would not constitute concerted protect- ed activity. Therefore, I am of the opinion that General Counsel has failed to prove by a preponderance of the evi- dence the allegation in paragraph VIII of the first com- plaint. Gillespie's Evaluation and Termination (Paragraphs IX(b) and X of the First Complaint) It is alleged that Gillespie was given a poor evaluation on September 26 and was discriminatorily discharged on October 3 and that both actions were motivated by his union adherence. It is apparent from the findings as to Keenan's interview with Gillespie on June 27 that he knew or strongly suspect- ed Gillespie was a union adherent. It is also apparent from above findings that Keenan was very hostile to union rep- resentation. These two findings have been considered in resolving the issues raised by the above allegations and the evidentiary problems related thereto. As to Gillespie's evaluation, as well as the other evalua- tions (of Monte Young, Cupler, and Hernandez), there are certain general observations which should be made. It ap- 740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pears that evaluations of technologists are an established procedure of WCL and, therefore, no inference adverse to Respondent can be drawn from the fact, of itself, that said evaluations were made of the above-named technologists. It does not appear that they were singled out for evalua- tions, but rather it appears that evaluations were made for all the technologists Williamson, Hueners, and Oda were instructed to pre- pare them on WCL's regular forms and were further in- structed to make independent judgments and then prepare a composite evaluation for each technologist based on their combined judgments. It does not appear that Keenan par- ticipated in their preparation. Thus, the evaluations repre- sented the combined subjective estimates of the three super- visors as to each technologist with respect to 22 categories. Since they are subjective estimates, it is obvious that they are both difficult to substantiate and difficult to attack. At most, the testimony to support them can only consist of some selected incidents 8 which were observed and some general observations of habitual practices or behavior in their work performance. Considerable testimony of this na- ture was introduced into the record by Respondent's wit- nesses and considerable contradictory or explanatory testi- mony was introduced into the record by General Counsel's witnesses in rebuttal. An attempt to detail all of this testi- mony would not only require a tremendous amplification of this Decision, but it would serve little purpose, since it would be of little aid in resolving whether the subjective evaluations were or were not honest impressions of the su- pervisors. I am not convinced that the testimony was unbi- ased, particularly that of the supervisors who, I infer, must have been influenced to some extent by Keenan's obvious union animus. Williamson made evaluations of technologists when they were employees of the hospital and General Counsel points out differences between these evaluations of the four tech- nologists which were excellent and their poor evaluations when employed by WCL. However, Williamson credibly testified that he uniformly selected the best of the various options opposite each category on the hospital's form, that he did not know what use was made of them, and that Keenan was never consulted with respect to the hospital evaluations or even saw them. It appears, therefore, that Williamson did not regard the selection of the options op- posite each category of the hospital form as of much im- portance and that said forms are of little or no probative value with regard to that portion of said forms in contrast- ing them with the selection of the options on WCL's forms. On the other hand, Williamson added comments to some of the hospital forms which to my mind cannot be disre- garded in appraising the WCL evaluations, particularly when such added comments were of such a complimentary nature that they virtually contradict the overall WCL eval- uation of the same individual. It does not seem likely that the performance of such individuals could have so drasti- cally changed as to warrant practically a reversal of the subjective impression of their performance. Therefore, in considering the WCL evaluations of the four individuals at 8 It appears from the record that errors are not infrequent and it is infer- red that incidents can be selected for any technologist to cast his perfor- mance in a poor light issue herein, I will also consider such added comments by Williamson on the hospital forms. Gillespie began work as a laboratory technologist at Roseville Community Hospital in June 1973. On or about May 28, 1974, Gillespie received an evaluation from Wil- liamson. Williamson gave the evaluation to Gillespie sever- al weeks early so that Gillespie could receive a pay raise prior to the takeover of the laboratory by Respondent on July 1. The evaluation rated Gillespie in the best possible categories available on the evaluation form. There were no criticisms of Gillespie's work in the evaluation. In the sec- tion of the evaluation entitled "Major Strongpoints," Wil- liamson wrote the following comments: "Responsible work performance" and "Demonstrates good knowledge in all areas of the clinical lab " There is also the following writ- ten comment: "Tom Gillespie has proven to be a valuable asset to the Clinical Laboratory. Tom is willing to work odd hours and pull call when necessary to provide continu- ous coverage in the lab." Gillespie testified that in late July he applied for part- time work on the graveyard shift at Sutter Memorial Hos- pital in Sacramento. The job was to run from 11 p.m. to 7 a.m on Wednesday, Friday, and Saturday. Gillespie's shift at WCL was from 3 p.m. to 11 30p.m. on Monday through Friday. Gillespie further testified that he asked Williamson if arrangements could be made for him to come in early on Wednesdays and Fridays, so that he could leave early to report to his job at Sutter, and that Williamson agreed to the arrangement, so long as Gillespie made sure that his shift at WCL was covered. Williamson denied that he gave him such permission except for a half hour on an occasion- al basis, and that he did not know Gillespie was working at Sutter, although he suspected it because Hueners told him he had received a call inquiring about Gillespie from Sut- ter. Gillespie further testified that in that conversation he told Williamson that in view of the union campaign, he wanted to protect himself with a part-time job; that Wil- liamson replied that he wished that the whole thing would blow over; and that Williamson further stated, "I have the feeling that some people are going to lose their homes, lose their cars and everything over this union business." Gilles- pie was not an impressive witness and his above testimony as to the arrangements he made with Williamson and the statements made by Williamson is not credited. (It is noted that there is no allegation in the complaint with respect to said statements.) Although General Counsel contends that commencing about mid-August Gillespie reported to work at Western Clinical Laboratory "1 hour early" on Wednesdays and Fridays and left work 1 hour earlier so that he could go to work at Sutter, his time records (which are in evidence) show that he wrote in the following checkin and checkout times at WCL: For the pay period 8/11 to 8/24: First week-"vacation without pay" Second week-Wednesday 2:30 to 11:00 Friday 3:00 to 11:30 For the pay period 8/25 to 9/7: First week-Wednesday 3:00 to 11:30 Friday-va- cation WESTERN CLINICAL LABORATORY, INC. 741 Second week-Wednesday 2:30 to 11:00 Friday 3:00 to 11:30 For the pay period 9/8 to 9/21: First week-Wednesday 2:30 to 11:00 Friday 2:30 to 11:00 Second week-Wednesday 2:30 to 11:00 Friday 2:30 to 11:00 It is noted that the above time records disclose that he never checked out earlier than 11 p.m. and on two occa- sions not until 11:30 p.m. On the other hand, the time records for Sutter disclose that he consistently checked in at 11 p.m. It appears from credited testimony that it takes over a half hour to drive from Roseville Hospital to Sutter Hospital and that the distance between the two is over 20 miles. Although Gilles- pie testified that he had an understanding with Sutter that he was to check in at 11 p.m. no matter what time he arrived, Elizabeth Truett, a technologist at Sutter, credibly testified that she worked on the same shift with Gillespie on Wednesdays and Fridays; that she was in charge of the shift; that, except for one occasion when he called in to say he would be late, he usually either reported on time or early; and that when he was late it was by only 2 or 3 minutes. Gillespie testified that on September 25 he injured his elbow while working at home in the morning, and that he called into WCL and said that he would not be able to work his shift because he had injured his arm. Gillespie treated his arm that day and reported to work at Sutter at I1 P.M. On September 26, Gillespie was called into Keenan's of- fice and was given his evaluation. The evaluation rated Gillespie as average in 9 categories, below average in 10 categories, and unsatisfactory in 3 categories. Gillespie's version of what occurred in Keenan's office is categorically contrary to the testimony of Keenan and Wil- liamson in many respects. Gillespie's testimony is summa- rized immediately herembelow. Gillespie testified that he was shocked by the evaluation and told Keenan that he thought he was being "railroad- ed." After going over several points of the evaluation, Gil- lespie told Keenan that no one had ever come to him with any of these problems or in any way criticized his work. Gillespie pointed out that only 3 months earlier he had received an excellent evaluation from Williamson? Gilles- pie told Keenan that he could not believe the evaluation and thought it was unfair. Keenan asked, "Well, what did you expect?" and Gillespie replied that he expected a bet- ter evaluation. Keenan then said, "Well, I have begged for help and you didn't lift a finger to help me . . you wanted to join the union." Gillespie further testified that later in the conversation Keenan asked him if he had worked at Sutter the night before, to which Gillespie replied that he had. Keenan told Gillespie that he could not believe that Gillespie had called in sick at WCL but had reported to work at Sutter. Gillespie explained to Keenan that he had 9 According to Keenan's credited testimony, this occurred at a subse- quent interview (on October 3) when Gillespie was notified of his termina- tion injured his arm earlier that afternoon, had treated it during the day and, although he was unable to report to work at WCL at 3 p.m., his arm felt better and he was able to report to work at Sutter at 11 p.m. Gillespie also testified that he told Keenan that he "took the day off without pay." Gillespie further testified that Keenan told Gillespie that he thought that Gillespie had committed a terminable offense and felt that Gillespie should be terminated imme- diately, but he wanted to check with his attorney and the board of directors of Respondent in Reno and would talk to Gillespie again in 2 or 3 days. Keenan's and Williamson's testimony as to the interview on September 26 was substantially in accord and is sum- marized immediately herembelow. Gillespie had been rated as unsatisfactory with regard to the use of sick time, so Keenan discussed the purpose of sick time and reminded Gillespie of the WCL manual and memoranda dealing with the use of sick time. In the middle of the discussion, Gillespie said he wanted to make a clean breast of the situation, since he knew that they were check- ing on him. He stated that he had called in sick the day before and thereafter went to work at Sutter. Keenan asked Gillespie how he knew he was being checked on when Keenan did not even know he was working at Sutter. Gil- lespie said that a lady had called Sutter the night before and asked for him, and when he answered the phone, she said she wanted "Bill" and hung up. Keenan responded that he had never known Gillespie was working at Sutter, that he had not been checking up on him, and that he was amazed that Gillespie would call in sick, not come to work at Western Clinical Laboratory, and then go to work some- where else. Keenan asked what possible explanation he could have for such conduct. Gillespie told Keenan that he had injured his elbow and it was paining him, so he called in sick; that he thereafter soaked it; and that it seemed to get better around dinner time, so he went to work at Sutter at his regular time. Keenan then asked him why he did not report to work the rest of his shift at WCL, if he felt better at dinner time, since his shift ran to 11:30, and Gillespie answered that it had never occurred to him to do so. Keen- an testified that he was very surprised and asked Gillespie if he realized that WCL was paying him for being sick, to which Gillespie responded that it was not right but that is what happened. Keenan testified that he then turned to Williamson and asked what he thought should be done, and Williamson replied that he thought the man should be terminated. Keenan replied that he could understand why Williamson felt that way, that he had the same feeling that Gillespie was "ripping them off," but perhaps they were overreacting. Keenan told Gillespie he would get a "fair shake," that the matter would be presented to the general manager and the administrative committee, as well as the legal counsel of WCL, but that he could not offer him much hope, but perhaps others might feel differently. Keenan then asked Gillespie if he wanted to review his evaluation or wanted to discuss specific points, and Gilles- pie replied that he did not agree with the evaluation, but did not want to discuss it. Keenan then advised him he would be preparing a memorandum to the file regarding this incident over the sick time, and told Gillespie he could have a copy if he wanted one. 742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Also, Respondent's witnesses testified as to what action was taken after the interview. Keenan testified that on the morning of September 27, 1974, he checked the timecards to see if Gillespie had actually expected WCL to pay him sick time for the day he called in sick and went to his other job, and that he did, that Gillespie's timecard stated "sick" "8" for the September 25. Gillespie had written a note which was attached to the timecard. Copies of the note were made and it was reattached to the timecard. The pur- pose of making a copy of the note was to have documenta- tion to present to the administrative committee, as Keenan told Gillespie he would do. Later that day or the following day, Keenan was advised by Hueners or Williamson that there was a new timecard for Gillespie that did not contain a claim for sick time on September 25. Keenan looked at it and noticed that there was also a different note. The time- card was substantially changed and there were comments on it that had not been there before. An "o" was written under "regular" time instead of an "8" under sick time. The timecard later disappeared altogether and Keenan was unable to recall when that occurred or if they had the time record when the termination check was prepared. After the meeting with Gillespie, Keenan asked Wil- liamson to check with Sutter to find out if Gillespie worked other times and was informed that Gillespie was working at Sutter on Wednesday, Friday, and Saturday, that there were conflicts in the records between when Gillespie was supposed to be working at Sutter and when he was sup- posed to be working at WCL and that this had been going on for some time. Williamson testified that, after the meeting on Septem- ber 26, Keenan asked him to find out what shift Gillespie was working at Sutter and how long he had been working there. Williamson called Mrs. Crespi, the chief medical technologist at Sutter, who told him that Gillespie was working Wednesday, Friday, and Saturdays from 11 p.m. to 7 a.m. and had started in June 1974. Williamson and Keenan then correlated the dates he was working at WCL and the dates he was working at Sutter and found that he was either leaving WCL early or getting to Sutter late. Williamson further testified that on September 27 he ex- amined Gillespie's timecard for September 25 and saw "8" hours entered under the "sick" time column. A few min- utes later, he went back to get the timecard for Dr. Keenan and found the note. He took the timecard and the note to show Keenan, and a copy was made of the note. Around 5 or 5:30 p.m., he received a report from Hueners that Gilles- pie was doing something on his timecard, so he went back and looked. He found that the card had been changed to reflect an "o" through "regular" time instead of an "8" under sick time, and there was no erasure, that it was a new card. There was also a note attached to the timecard which was different from the note that had been attached that morning. (The first note indicated that he was applying for sick time and the second note omitted such a statement.) Hueners testified that on the afternoon of September 27, between 3 and 5 p.m., he was in Williamson's office and observed Gillespie take his timecard out of the box outside Williamson's window, that the timecard had a note at- tached, that Gillespie laid it down, picked up the timecard tablet and tore a new timecard off and then wrote out a new card. He then took a piece of scratch paper and wrote a note which he attached to the new card, put the new timecard in the box and took the other timecard and note with him. Respondent's witnesses were more impressive than Gil- lespie and their testimony as to the September 26 interview and the action they took thereafter is credited. It is found that they were aware that Gillespie had first charged Re- spondent for sick time on September 25 and then later changed his time record and the explanatory note attached to indicate that he was not charging sick time. Further, it is found as a result of checking with Sutter, Keenan reasonably believed that Gillespie was falsifying WCL's records, not only as to the sick leave on September 25, but probably also as to the time he left WCL on Wed- nesdays and Fridays. It appears that after several days (on either October 2 or 3), Gillespie was summoned to another interview with Keenan and that he took Monte Young with him. It fur- ther appears that Williamson and Oda were also present. Gillespie's testimony as to the interview is as follows: A. Dr. Keenan told me that he had contacted his attorney and the Board of Directors in Reno and they agreed with him that I was to be terminated. And, he had my termination check there and he asked me to look over the check and make sure it was right. And, as a matter of fact they had not paid me for eight hours, they had overlooked that and he said he would take care of that. I was pretty upset at that point. Q. Did Dr. Keenan say why you were being termi- nated, at that point? A. Yes. He said, for calling in sick. And again, I told Dr. Keenan that I had not put in for a days' pay; that day. I had not called in sick, I had called in un- able to go to work. He did not seem to pay any attention to me. He said, "well, you have just been caught." I said, "well, as a matter of fact , it is not even on my time card that I put in for eight hours pay. Eight hours sick pay. There is a copy of my time card that I put in for zero hours." Q. And, did you discuss your evaluation again? A. Yes, I reiterated again that I felt the evaluation was unfair and that it was due to my union sympathies and not my abilities. I merely repeated what I had said on the September 26th meeting. And Dr. Keenan again said that he felt that my evaluation had been a fair one and that he had agreed with what my supervi- sors had written down. That was just about all that was said about the eval- uation. Gillespie further testified that Young left and that he had a further conversation with Keenan as follows: I said, "Dr. Keenan I have heard that you blackball people." WESTERN CLINICAL LABORATORY, INC. 743 Dr. Keenan said, "What do you mean blackball?" I said, "I understand that there was a technologist who, five or five and one half years after you had fired him had-an employer had sent a letter for a recom- mendation and you had shot him down." Dr. Keenan didn't say anything to that. But, I said, "Are you going to blackball me?" Dr. Keenan said, "Are you going to continue to bad mouth me?" I said, "Dr. Keenan, I have never bad mouthed you." Dr. Keenan said, "Yes, you are right there, I have never heard you, or heard of you saying anything about me." He said, "Well, let us put it this way: you will never get a job between Roseville and Reno." He said, "I could call pathologists in Sacramento." Q. Okay. Anything further? A. Well, I said something else about the evaluation, the disparity between the first and second evaluations. Tom came back in and Dr. Keenan wanted to get Bud back in and ask him why the difference in the evalua- tions. I said, "Look, I have been fired. I just want to get out of here." I said, "Whatever is between you and Bud, or you and Tom, or whatever you want to talk about has really nothing to do with me." I said, "I have had it, I have been fired, I have my check and I want to leave." And, I left. Keenan, in testifying to the termination interview, relat- ed that he told Gillespie he had checked with the parties he had mentioned in the previous interview and was advised to terminate him. Keenan's testimony continues as follows: A. I told him that I felt that it was unfortunate that this matter had developed, this whole situation regard- ing calling in sick or signing out fraudulently. I had to, in my own mind, weigh whether or not if a man would falsify his own records, whether he would falsify reports that left the laboratory. This was a mat- ter I had to decide in my own mind and I felt that I could not continue him in this capacity on the basis of the findings that I had to that time received. Q. Did he respond to that statement? A. Well, he did indicate to me, I remember him saying he felt that he was being railroaded. Q. Did he say anything else? A. He indicated to me that he had previously re- ceived a good evaluation, what he felt was a good evaluation. Q. Which evaluation was he referring to? A. He was referring to an evaluation which was performed when he was in the employ of Roseville Community Hospital by Mr. Williamson earlier that same year. Q. Did you have a discussion with Mr. Gillespie about his prior evaluation? A. Well, I told Mr. Gillespie that he was not being terminated primarily because of his evaluation, which was a poor evaluation; he was being terminated be- cause of his dishonesty in reporting time to me and reporting his hours of work. Q. Did you, at that time, discuss his evaluation that he had received from Western Clinical Laboratory with him? A. I believe we tried to go into the evaluation when he brought up this point about; well, how could he change so much. Never having seen the evaluation that he received as a Roseville Hospital employee, I said that I cannot comment on a change when I don't even know what you are talking about. He said he had a copy of the evaluation and would I like to see it. I said I would very much like to see it. Q. Did he show it to you? A. He brought it to me and showed it to me. Q. And? A. I reviewed the evaluation that he received and then I reviewed the evaluation, the more recent evalu- ation he received as an employee of Western Clinical Laboratory. I think I said something to him to the effect that, "I can understand that you would be con- cerned that these entries all on the righthand side of the page-you would feel perhaps you were doing a goodjob." But that was not my observations of his job I had seen in the laboratory. I had never reviewed that evaluation before so I could not in any way take re- sponsibility for it. And I believe at that time I pointed out to him that on that evaluation sheet some of the entries, even though marked on the righthand side, did not indicate to me he was doing a very good job or an outstanding job. Q. What evaluation are you talking about? A. The one from Roseville Hospital by Mr. Wil- liamson. Q. Do you recall anything else that was discussed at that meeting with Mr. Gillespie? A. Yes, I do. I recall him asking me if I was going to blackball him. Q. Were those his words? A. Yes, he did ask me if I was going to blackball him. Q. And did you respond? A. Yes, I did. Q. What did you say? A. I asked him why he would think I would black- ball him-first, I asked him what he meant by black- balling. Q. What did he say? A. He said-I think the reason I remembered was he said something that- Q. Well, don't tell me what you felt, tell me what he said. A. He said to me, he said "I know you are one of the most powerful pathologists in the Sacramento area and you could stop me from working elsewhere" and did I intend to stop him from working elsewhere. Q. Did you answer that question? A. Yes, I did. Q. What did you say? 744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A. I told him I was disappointed that he would think I would interfere with his personal life. I did indicate to him that I would never wish to see him working at Western Clinical Laboratory because of his dishonesty, but I had no intention whatsoever of in- volving myself in the Sacramento pathology practice of blackballing or in some way ostracizing him. I had no intention, I could not conceive of myself doing that, and I reassured him that what he did with his personal life was fine with me. I just did not want him working at Western Clinical Laboratory any more. He looked at me as though, "are you really saying that?" He gave me the impression he really didn't be- lieve what I was saying. I said, "Tom, if you would like I will write a letter of recommendation . It will be an honest letter, it will say what I know to be the facts. I will give you a copy of it if it is helpful for you to obtain work elsewhere, you can have a copy, it is yours." I said that it will take me time to draft it. I said, "I am not going to in any way attempt to hurt your personal life." Keenan further testified that there was a disparity in the amount of Gillespie's check and that he had it corrected. Keenan was the more impressive witness as to the termi- nation interview and his testimony is credited. I am of the opinion that in all the circumstances , particu- larly the almost complete contradiction between Williamson's very complimentary comments in his evalua- tion of Gillespie just prior to the takeover by WCL and the poor evaluation by WCL, that the latter evaluation was discriminatorily motivated . In arriving at this conclusion, I have fully considered the testimony of Respondent's wit- nesses offered to support the latter evaluation and do not find it as persuasive as the contrast between the two evalu- ations. Therefore, it is found that the General Counsel has proved by a preponderance of the evidence the allegation in paragraph IX(b) of the first complaint and that the poor evaluation constituted a violation of Section 8(a)(3) and (1) of the Act. On the other hand, I do not find that General Counsel has proved by a preponderance of the evidence the allega- tion in paragraph X of the first complaint that Gillespie was discriminatorily discharged . I credit the testimony of Respondent's witnesses as to the changes by Gillespie of his timecard and as to their learning of the conflict be- tween his shifts on Wednesdays and Fridays at WCL and Sutter and that his termination was motivated by these facts. Based upon said credited testimony, I am convinced that it would be inappropriate to find that Gillespie's dis- charge was motivated by knowledge of or suspicion of his union adherence . In arriving at this conclusion , I have giv- en full consideration to all the findings of fact tending to support General Counsel's contention, including the un- lawful conduct Respondent engaged in with respect to Gil- lespie found hereinabove. The October 26 Randolph-Keenan Conversation Randolph testified that , on October 26, Keenan asked him to come into his office where the two held a conversa- tion. Randolph's testimony with regard thereto is as fol- lows: Dr. Keenan told me that he knew how some of the members of the union had voted , but he was pretty sure how I had voted . He did not know about some of the others. I said there was no way really, anyone would ever know because it was a closed ballot. He said that there are members of this Union who could hurt his organization . I said these are the same people we had before and they were considered good techs before. Dr. Keenan said that they had changed ; their atti- tude had changed . He said, "It is like a malignant cell that has to be cut out." It was during this conversation that he told me there would be terminations. Randolph further testified that he does not recall that Keenan stated any reason why there would be termina- tions, that it was said just after Keenan stated "that there are members in the Union that could hurt this organiza- tion." There is no allegation in the complaint with regard to this incident and it does not appear that it was fully litigat- ed. Therefore, no finding of an unfair labor practice can be appropriately based on said testimony. While Randolph's testimony is credited, its probative value is limited to mere- ly confirmation of my previous finding of Keenan 's consid- erable hostility toward accepting union representation. Further, it indicates that he was inclined to the idea of terminating union advocates and that he knew or suspect- ed certain employees of being union adherents. The Evaluation and Termination of Monte Young (Paragraphs IX(a) and XI of the First Complaint) Monte Young was hired as a medical technologist in October 1972 by Keenan to work in the laboratory at Roseville Community Hospital. It was Young's first job as a medical technologist and he was immediately assigned to work on the 7 to 11:30 p .m. shift to which there was no supervisor assigned. On or about December 14, 1973 , Young received an an- nual performance evaluation on the hospital's form signed by Williamson . In every category the best option is checked and it concludes with the handwritten comment: Monte could better utilize his capabilities if he were given the official job as p.m. supervisor. He has been acting in that capacity and has done an outstanding job for the hospital laboratory. In addition, there are written comments that Young is "dedicated to good patient care ," "has leadership capabili- ties" and "promotes and participates in continued educa- tion." In the appraisal interview Young was told by Wil- liamson that he had been doing very well and that Williamson was going to suggest that Young be given the job of night supervisor. As stated hereinabove , Young signed the first petition WESTERN CLINICAL LABORATORY , INC. 745 for an election as president of the Association . Also, as set forth hereinabove, he had a 6-hour interview with Keenan in which it was found that Young stated his support of the Union and Keenan made statements which demonstrated his (Keenan's) considerable hostility toward union repre- sentation and a willingness to engage in unfair labor prac- tices to prevent it.10 It is further noted that Young acted as the observer in the Board-conducted election on August 2. It is clear from the record that Respondent reasonably, - must have believed that Young was the leader in the orga- nizational efforts of the technologists. On October 26, Young was summoned to Keenan's of- fice and was handed his evaluation by Keenan with the comment that "this is your day in court." t t The evaluation was very poor. It rated Young as "average " in eight catego- ries, "below average" in nine, and "unsatisfactory" in six, 12 and also contained some handwritten adverse comments. Considerable testimony was elicited by Respondent as well as the General Counsel to support and rebut the eval- uation. Although such testimony has been fully considered, setting it forth in detail would considerably amplify the length of this Decision and would serve little purpose, for the reasons stated hereinabove. Rather, I am more con- vinced by evidence which I consider to be unbiased, such as the evaluation by Williamson prior to the organizational attempts (even though it was made some 9 months prior to WCL's takeover) and evidence and testimony emanating from patently unbiased sources, personnel in the emergen- cy room of the hospital who had to rely on the technolo- gists' performance on the evening shift. According to Young's credited testimony, after he exam- ined the evaluation, he indicated his disbelief that it was a fair evaluation and threre was a discussion of some of the written comments . His credited testimony with regard thereto is as follows: Dr. Keenan said, "You should take this very seri- ous. This is a true evaluation of you." So then we looked at it more closely. He read to me and we discussed-I think the first things I noticed were two things on there ; one, he marked me unsatis- factory in getting along with my fellow employees. I asked him what that meant, and he read down there at the bottom where he said-where you com- pare wages and benefits and work schedules of union employees as compared to non-union employees. I said I didn't see where-nobody ever told me that that bothered them, that I was doing anything wrong. Q. Let me interrupt your testimony for a second. Did you do anything in particular in terms of comparing wages between Western Clinical Laborato- ry and any other locations? 10 As stated heremabove , no unfair labor practices were found with re- spect to said statements in the absence of an allegation in the complaint relating to the incident ii No significance is attached to this comment which, at best , is ambigu- ous and, in any event, it appears from credited testimony of Keenan that he frequently used the expression in connection with his appraisal with tech- nologists of their evaluations. 12 In one category he was rated both "average" and "below average" A. Yes. At one of our meetings, we kind of won- dered what the difference was between our lab and the union laboratory. I then received a copy of Kaiser's contract; their pay scales as per technologists. Q. Union contract? A. Union contract, yes. I then took our pay scale and just wrote in the com- parable wage scales that Kaiser paid at that time for each of the Tech I, Tech II, Tech III, Tech IV and like that. Q. Okay, and what did you do with that document that you wrote up? A. The people that wanted a copy, I gave it to them. Q. Did you do anything else with it? A. I posted it on a bulletin board. Q. Okay. Was there any other discussion then about that portion of your evaluation? A. Yeah, I said that I didn't think that it bothered anybody. As a matter of fact, I get along with my fellow workers very well and have no problem at all getting along with them. There is no problem with that at all. He then said-Dr. Keenan said, "Well, how about this on the bottom?" He said, "Here is where you don't follow your chemistry work through." I asked him what that was and he said , "On the salycylate." Q. What is the salycylate? A. It is measuring the aspirin level. Q. And that is a test? A. That is a test, a chemistry test that we do. Q. All right. A. I said, "Well, that is really unusual," because I didn't think I had ever done a salycylate. Dr. Keenan then turned to Bud and said, "Maybe that was Gil who had done that." Keenan then asked him if he would like to see an exam- ple of his "bad work" and referred to a spinal fluid test which Young had performed the night before (after the evaluation had been prepared). Young testified that he re- membered the test because he had received an abnormally low result. He wanted to redo the test but could find no more of the specimen on which he could perform another test. Young then telephoned to the hospital floor and said that he was returning the results of the test but that the results were questionable . Young asked the nurse on duty to call the attending physician and ask if he wanted the test repeated. Keenan stated that he had had the test rerun on the day shift and found that Young's results were incorrect. Young asked whether they had obtained another specimen from the patient. Keenan replied that he had retrieved the specimen from the refrigerator. It appears that Young, be- cause he genuinely thought there had been no more of the specimen left, became angry and walked out of the room, 746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD stating that he wanted to make copies of his evaluation. Young made copies of his evaluation and returned to Keenan's office. At that time Keenan told Young that he would be reevaluated in 30 days and that if he did not improve in his work performance, he would be terminated. On September 25, the evening that Young performed the above mentioned test, two of the four technologists sched- uled to work were out sick. In addition, it was an extremely busy night for emergency room work. Young admitted that it would have been best to have contacted a supervisor before releasing the spinal fluid test result; however, he explained there was no time to do so that evening. It is noted that the emergency room staff, who apparently were impressed by Young's performance in the laboratory that evening, sent a memorandum dated September 25 to Keen- an praising Young's speed and efficiency in performance of his laboratory duties that evening. The memorandum was signed by the emergency room personnel, four nurses and the physician in charge.13 Also, Dr. Simon Viss, an emergency room physician, heard of the poor evaluation of Young and, on September 26, sent a letter to Keenan with regard thereto. Viss' letter states in part: "I have always been impressed with his excellent attitude, spirit of coopo- ration, enthusiasm and the accuracy of his work. It is my opinion that he performs in a superior and outstanding manner in all areas of his work." 14 Apparently Keenan chose to ignore both the memorandum and letter. Young credibly testified that on October 2 he asked Wil- liamson why he had received such a bad evaluation and that Williamson replied, "Well, Monte, after you joined, what did you expect?" In all the circumstances, including the prior excellent evaluation by Williamson set forth above,15 it is found that the poor evaluation of Young was motivated by his activity and leadership role in organizing the technologists and that said evaluation was violative of Section 8(a)(3) of the Act. Young credibly testified that on October 24, Dr. D. J. Stoudard, one of WCL's pathologists, came into the labo- ratory and asked Young to accompany him to his office. Young replied that he was working in "stat work" (emer- gency work to be performed immediately) and would be with him in a minute. Stoudard told Young that someone else would pick up his work and that Young should come with him immediately. Stoudard and Young went into one of the offices, where Stoudard gave Young 12 slides which he instructed Young to examine and diagnose. Young said that he could not give a diagnosis, as he was only a medical technologist, not a doctor. Stoudard told him just to write down everything that he saw. Young said he would do so and would also note whether he could refer the slide to a pathologist for review. Young reviewed the slides and wrote down his answers which he returned to Stoudard. It appears that he received a very low grade on the test. 16 Although a plausible reason was offered for giving him the test, that he had failed to read a slide correctly, I am of the opinion that he was singled out to take the test in order to obtain proof to substantiate a reason for terminating him. The record clearly indicates that not infrequently errors are committed by technologists, but there is no showing that any of them was ever given a test to check on his or her competence because of an error. l" Based upon Randolph's credited testimony set forth hereinabove that it had been suggested at a management meeting that they "make a book" on those whom they would terminate, Young's known leadership role in the organizational activities of the technologists, Respondent's union animus , and all the cir- cumstances, I am of the opinion that the test was given in order to supply a chapter in the "book" that Respondent was attempting to assemble in order to document an osten- sibly lawful reason to terminate Young. Young further credibly testified that on October 28 he was called into a meeting with Keenan, Williamson, Oda, and pathologists Dr. Goldfarb and Dr. Stoudard. Keenan told Young that he had not improved on his evaluation, that he was doing very poor work, and that he was going to be terminated. Stoudard added that Young had flunked the 12-slide test. Keenan then said that he would give Young an additional 2 weeks, at which time he would be reevaluated in every aspect of the laboratory work. Keenan added, however, "I don't think you want to go through the personal embarrassment of that, but you can if you want to." Young asked who his evaluator was to be at the end of the 2-week period, to which Keenan replied that it would be he. Young replied that he thought that he would be wasting his time and Keenan's and that he would leave immediately. That was the last day Young worked at WCL. Based upon all the circumstances, and particularly the above findings with respect to Young, I am convinced that Young was constructively discharged on October 28 and that it was discriminatorily motivated. I am of the opinion that the alternative to termination, to work 2 weeks, was a meaningless alternative. It appears that Young must have reasonably assumed from the manner in which he was giv- en the choice that the 2-week trial would only be an exer- cise in futility for him Thus, his choice of the alternative of immediate termination , instead of the meaningless other choice, is found to constitute a constructive discharge and that Respondent was discriminatorily motivated in giving him the two choices. Therefore, it is further found that General Counsel has proved by a preponderance of the evidence that Young was constructively discharged on Oc- tober 28, 1974, in violation of Section 8(a)(3) and (1) of the Act. 13 Although this is hearsay evidence, there was no objection to its receipt in evidence and, in the circumstances , I am of the opinion that I can rely on it as of probative value 14 See preceding footnote 15 Although Williamson testified that the comment about making Young a supervisor was written at the request of Wesley Berg, a member of the board of directors of the hospital at the time, Berg credibly denied that he made such a request of Williamson 16 1 am in no position to judge the appropriateness of the grade he re- ceived, but there is nothing in the record to indicate that the grade was not substantially correct Rather, it appears that Young believed that he had failed the test and claimed he was under stress when he took it 17 For example, Omar Ahmad, a technologist, made an apparently serious error on August 7, 1974, on a spinal fluid test (which error was checked by Williamson), but there is no evidence that he was given a test to check on his competence WESTERN CLINICAL LABORATORY, INC. 747 Evaluations of Hernandez (Paragraph IX(d) of the First Complaint) During the course of the hearing, the first complaint was amended to add a subparagraph (d) to paragraph IX of the complaint alleging that evaluations of Hernandez on Octo- ber 10, 1974, and February 5, 1975, were discriminatorily motivated. In the October evaluation she was rated "above average" in five categories, "average" in seven categories, "below average" in eight categories, and "unsatisfactory" in two categories. Although on June 27 she had volunteered to Keenan that she was strongly in favor of union representa- tion, there is virtually nothing else in the record to support a finding that the October evaluation was discriminatorily motivated. While Williamson's evaluation of her before the takeover may very well have been better with respect to the choice of options in the various categories on the hospital form, for the reasons stated hereinabove that fact of itself is of no probative value. Consequently, I am of the opinion that I cannot appropriately find that the subjective esti- mates of her in the October evaluation were discriminaton- ly motivated. Moreover, it does not appear that the evalua- tion can be characterized as "poor." As for the February 1975 evaluation, she was rated "av- erage" in 14 categories, "below average" in 6 categories, and "unsatisfactory" in 2 categories. The only intervening incidents which can be said to relate to her union adher- ence were insubordinate actions on her part to show her resentment with regard to Monte Young's termination. It appears that these incidents were discussed with her during her February 1975 evaluation. As to the above-mentioned incidents of insubordination, Hernandez testified that she learned of Young's termina- tion and was very angry. Her testimony as to what then ensued is as follows: So, shortly thereafter, Dr. Keenan walked out, and I let into him. Q. What did you say? A. I asked him where Monte was, and he said that Monte's evaluation did not measure up, and "I cannot discuss another employee's evaluation with you, but if you would care to discuss it with Mr. Young I will have him come back." Of course, I couldn't butt in on another employee's evaluation. I had a test tube in my hand. I didn't even realize it, and I just picked it up and smashed it down on the counter. JUDGE GILBERT: I don't understand. THE WITNESS: I had a glass test tube in my hand and I just picked it up and smashed it and walked out. Q. (By Mr. Berkowitz) Was there anything further? A. I told him it was a frameup. Q. You told Dr. Keenan it was a frameup? A. Oh, yes. I was furious. Q. And what did Dr. Keenan reply, if anything? A. He didn't. I just went storming out. Q. And was that incident referred to or discussed in your evaluation? A. That is one of the insubordinate attacks. Q. All right. And what was the other? A. Well, the following evening, on my way back from the cafeteria, he was standing, talking to Bud Williamson, and I was still plenty mad and I butted into the conversation. I realized later it was bad man- ners, but anyway I did. I told him. JUDGE GILBERT: Told who? THE WITNESS: I told Dr. Keenan that I thought he was terribly over-reacting to this business of the union and he was only firing the union people, and that there was absolutely no job security in that lab for the union people. That was about all. Of course, he knew that I was furious. Q. (By Mr. Berkowitz) Okay. A. He hollered at me, "If you don't like it here you can leave." Her testimony clearly demonstrates that Respondent had reasonable grounds to consider that she was insubordinate on said occasions. Again, I am of the opinion that I cannot appropriately find that the subjective estimates of her in the February 1975 evaluation were discriminatorily motivated, although it was not as favorable as her prior evaluation. Consequently, I conclude that the General Counsel has failed to prove by a preponderance of the evidence the allegation in paragraph IX(d) of the first complaint. Evaluation of Cupler (Paragraph IX(c) of the First Complaint) It should be noted that the record clearly indicates that Respondent was aware of Cupler's prounion attitude and that it was he who was responsible for Will appearing on June 27 when the employees were being individually inter- viewed. On October 28, Cupler received his evaluation which found him to be "average" in 11 categories, "below aver- age" in 6 categories, and "unsatisfactory" in 5 categories." It is noted that in his evaluation by Williamson in May 1974 Williamson wrote the following comments: "Consci- entious in work performance-dependable employee- promotes or participates in continuing education." There is also the following written comment: "Jim is a long time employee of Roseville Commnity Hosp Laboratory. Dur- ing those years (8) he has proven to be a good Medical Technologist... . It is further noted that in April 1974 he had an evalua- tion by Williamson which contains the following handwrit- ten comments: "Willingness to help out by working after hours; produces high volume of quality work." There are also the following handwritten comments: "Jim continues to be one of our most conscientious technologists. He par- 18 There is a comment, however, as to the unsatisfactory rating with re- spect to "at work on time," as follows, "unsatisfactory until notification [ostensibly referring to the written reprimand discussed hereinabovel-aver- age since " 748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ticipates in continuing education. Maintains a keen interest in his profession." In an April 1973 evaluation there are contained the following handwritten comments: "depart- ment supervisor, hematology, participates in continuing education, supports the field of medical technology." It also contains the further handwritten comment: "Jim Cupler's supervising capabilities will be utilized better as we continue to grow with Roseville Community Hospital." The disparity between the poor evaluation by WCL (af- ter the organizational activities) and the consistent com- plimentary comments by Williamson in the evaluations which preceded the organizational activities, and the rea- son he gave for Cupler's subsequent transfer to the night shift (that he needed a "good tech"), when viewed in light of Cupler's known union adherence and Respondent's ani- mosity toward union representation and the leaders seek- ing to obtain it, leads me to the conviction that the October 28, 1974, evaluation of Cupler by Respondent was discrim- inatorily motivated. Therefore, I am of the opinion that the General Counsel has proved by a preponderance of the evidence the allegation in paragraph IX(c) of the first com- plaint and that by said conduct Respondent violated Sec- tion 8(a)(3) and (1) of the Act. As indicated hereinabove, there was a second hearing in this proceeding to take evidence on a second consolidated complaint based upon charges filed after the first hearing had closed. Following is a resolution of the issues raised by said second complaint. Attempt to Cause Termination or Other Disciplinary Action Against Geraldine Mastin (Paragraph VI of the Second Complaint) It is alleged that Respondent violated Section 8(a)(1) of the Act "by attempting to cause the termination, discipline or reprimand of Geraldine Mastin" because she testified as a witness for the General Counsel in the first hearing. Mas- tin is not an employee of Respondent, but is a registered nurse employed by Roseville Community Hospital. She is the "charge nurse" in the emergency room on the p.m. shift which runs from 3 to 11:30 p.m., the same hours which Young worked in the laboratory. Mastin was called as a rebuttal witness by the General Counsel on April 2, 1975, the last day of the first hearing. In essence, Mastin testified that the laboratory per- formed services for the emergency room and that Young's work was performed quickly and that there were never any complaints about the quality of his work. Her testimony apparently was offered to rebut Respondent's assertion that Young was incompetent and inefficient. I did not rely on her testimony (to the effect that Young was efficient and competent) in resolving the issues with respect to Young, since it was of little probative value. As disclosed by her testimony, she had little opportunity to pass judgment on the work of any of the laboratory tech- nologists with sufficient specificity to permit her evaluation of them to be given much weight. It appears, however, that Keenan could not and did not foresee that I would arrive at such a conclusion. On the contrary, as set forth herein- below, it appears that he was very much disturbed by her having testified in support of Young. In essence, Keenan testified that he was disturbed by what she was prepared to testify as had been indicated by General Counsel's offer of proof, and interviewed hospital personnel to determine its validity, that he was not aware of any problems with regard to the night shift until then.19 It appears that the day after Mastin testified Keenan arranged to have two conversations with Dr. Robert Lind, director of emergency services at the hospital, one early in the morning of April 3, and the other later in the day with Ronald Logar, Respondent's counsel, present part of the time. Lind credibly testified to the first conversation as fol- lows: A. I went into his office and he was wondering, I believe, if I was aware of the Western Clinical involve- ment with the NLRB in this situation. I said that I was and he proceeded to ask me if I was aware of Gerry Mastin testifying on the previous day? I said that I was aware she had been subpoenaed, but I don't think I was aware at that time that she had testified on the previous day. He was, I think, upset at that time with the testimo- ny that she had given. Q. What did Dr. Keenan say? A. To the best of my recollection, he went into de- tail as to her testimony and of its relevancy to Western Clinical Laboratory and that he felt it had been very detrimental to Western Clinical Laboratory. Q. And, what else was discussed that was said? A. Well, I think that his main concern was that Ms. Mastin had not reported this to the proper administra- tion of the hospital, at that time; JUDGE GILBERT: Had not reported what? THE WITNESS: Had not reported that she was going to testify at the trial to the administration of the Hospital and that this was a rather flagrant thing on her part. In addition to this, he felt that the testimony that she had given at that time exposed him as well as Western Clinical Laboratory to potential malpractice or public scorn or ridicule. Q. (By Mr. Berkowitz) Okay. Do you recall whether anything else was said in that conversation? A. Well, I think that my first concern was, "What did she say?". I think he went into detail as to what she testified to. I said, "Well, I would just like to see a copy of what she said in court before I make any judgments one way or another." Q. What did Dr. Keenan respond to that? A. I think that he got into the fact that the person- or he was telling me that a person such as this may not have good judgment in the future and because of that, 19 1 had ruled that I would not receive her testimony as to the deteriora- tion in the quality of the laboratory service on the night shift after Young's termination It is noted, as indicated herembelow, that Keenan had been made aware of complaints with regard thereto at least a week before Mastin testified, according to Williamson's credited testimony, that he had consult- ed with Keenan about the need to make an adjustment in the night shift because of complaints he had received about that shift WESTERN CLINICAL LABORATORY, INC 749 might unnecessarily expose the hospital or perhaps me to unnecessary litigation by testifying without, per- haps, first checking with administration. Q. Anything else said in that regard? A. This was, I think, the main context of our dis- cussion. I think he mentioned, also, that because of this he really felt he should speak with the hospital adminis- trator, nursing personnel, and the Board regarding maybe getting rid of a person like this. Lind further testified, in essence, that Keenan clearly indicated that she should be terminated; he told Keenan that he did not have the authority to terminate her; he felt she was an excellent nurse and expedited the emergency service "tremendously"; "we [the staff] had confidence in her judgment"; he "would probably like to see her stay on"; and an attempt to get rid of her would "generate physician involvement." It appears from his cross-exami- nation that Keenan also asked him questions with regard to the matters contained in the aforementioned offer of proof. It appears that the second conversation was more or less repetitive of the first and that Logar was present to explain about Mastin's testimony. According to Lind's credited testimony, reference again was made to the matters con- tained in the aforementioned offer of proof. However, Lind also credibly testified as follows: Q. (By Mr. Berkowitz) Was there anything said to- wards or with respect to the tone of voice that Ms. Mastin may have used on the witness stand? A. Yes. I recall that she was said to have been hos- tile. Mr. Logar explained to me, also, that the records may not really indicate the amount of hostility that she had in her tone of voice towards the type of labo- ratory service. Since the offer of proof was made by General Counsel, it is apparent that the reference to her tone of voice was not addressed to the offer of proof but rather to her testimony. Keenan testified that he also spoke with Hospital Ad- ministrator Ron Davey on April 4. In that conversation Keenan "reminded" Davey of the hospital's rules requiring an employee to notify the hospital upon being subpenaed and asked Davey to investigate the matter. Apparently, Keenan also discussed Mastin's testimony with Davey, be- cause Keenan testified that he called Davey on May 1 and asked him if he had completed his "investigation" and that Davey told him that he had reviewed the transcript and had not seen anything in the transcript "derogatory" of Respondent. It appears that no disciplinary action was tak- en against Mastin. Respondent in its brief confines its defense (to the alle- gation regarding Mastin) solely to the argument that Mas- tin is a supervisor and, therefore, does not come within the protection of the Act. No purpose would be served in re- solving the issue of whether she was or was not a supervi- sor. Even if it were assumed that she is a supervisor, that affords no defense to the allegation. Economic reprisal against a supervisor for testifying in a Board proceeding is violative of Section 8(a)(1) of the Act inasmuch as it would tend to inhibit employees as well as supervisors from testi- fying in Board proceedings. Better Monkey Grip Company, 115 NLRB 1170, 1171 (1956). It follows therefrom that an attempt to cause a reprisal to be taken against a supervisor for testifying in a Board proceeding is also violative of the Act, since it would tend to have the same effect as an ac- complished reprisal. Based upon Lind's credited testimony and the above tes- timony of Keenan, it is found that Keenan was attempting to cause Mastin's termination, in substantial part for her testifying in support of General Counsel's case. Conse- quently, I am of the opinion that General Counsel has proved by a preponderance of the evidence the allegation in paragraph VI of the second complaint and that by the conduct alleged therein, Respondent violated Section 8(a)(1) of the Act. The fact that Mastin was not in the employ of Respondent does not affect my conclusion. A us- tin Company, 101 NLRB 1257, 1258, 1259 (1952). Transfer of Cupler and Randolph to Night Shift (Paragraph VII of the Second Complaint) It is alleged that Respondent discriminatorily transferred Cupler and Randolph from the day shift to the night shift because of their protected activities "and/or" because they testified in the first hearing. The issue with respect to this allegation is whether the transfers were motivated by busi- ness reasons, as asserted by Respondent, or unlawfully mo- tivated as alleged. By memoranda dated April 3, 1975, and signed by Wil- liamson, Cupler and Randolph were notified as follows: It has been brought to our attention that the 3:00 PM to 11:30 PM coverage is lacking experienced per- sonnel. Since you are one of only two full time senior technologists who has not been designated as a section head or supervisor, I am transferring you to that shift effective Monday April 7, 1975. It is hoped that this transfer in personnel will strenghten [sic] the 3:00 PM to 11:30 PM coverage. Williamson credibly testified that he made the decision to effect the transfer because of complaints he had received about the newer people on the p.m. shift and slowness of the service, and that he discussed it with Keenan approxi- mately a week to a week and a half before the end of the first hearing.20 Lind credibly testified that there had been complaints in the emergency room about the newer technologists on the shift, that Mastin had complained to him that there had been a significant change in the quantity or quality of the work emanating from the laboratory, and that there had been incidents of poor service which he had observed. It appears from Williamson's credited testimony that a com- plaint by Mastin about the work of the shift as well as complaints of other hospital personnel had been relayed to him during the course of the first hearing. As to the contention that the selection of Randolph and Cupler, instead of others, was discriminatorily motivated, 20 Williamson was a convincing witness as to this aspect of his testimony 750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the record is not sufficiently clear to determine whether or not they were the "only two full time senior technologists" available for transfer. In the circumstances, I do not believe it appropriate to reject Respondent's reason for effecting the transfer Con- sequently, I am of the opinion that General Counsel has failed to prove by a preponderance of the evidence the allegation in paragraph VII of the second complaint that Cupler and Randolph were discriminatorily transferred to the night shift.21 It should be noted that the transfer to the night shift did not constitute a demotion or involve more unpleasant work for Cupler or Randolph and that it enti- tled them to an increase in pay. I am not satisfied that the personal inconvenience it caused Cupler was of sufficient significance to require a contrary finding. Also, absent any probative evidence as to the reason why Randolph re- signed shortly after the transfer, I cannot consider it to be of any materiality. I have not failed to consider all the circumstances which would tend to support General Counsel's contention with respect to the transfers. Discharge of Hernandez (Paragraph VIII of the Second Complaint) It is alleged that Isabel Hernandez was terminated on or about April 7, 1975, because of her union adherence "and/ or" because she gave testimony in this proceeding. Keenan testified that it was his decision to terminate her and it was made around the time of the first hearing. His testimony continues as follows: Q. (By Mr. Logar) Did you have a reason for her termination? A. The basic reason was the tampering with records unauthorized. When this occurred and when it was brought to my attention- JUDGE GILBERT: I am sorry; I can't hear you. A. Ms. Hernandez indicated in court that she, in fact, did go into Mr. Williamson's office and did seek out records and did take copies of records. This supported testimony that was given to me by Mr. Williamson that there were eye-witnesses who said she had done these things. I felt that this was dust about as far as we could go with Ms. Hernandez. I felt that was out of line; I had already felt that her performance and her insubordi- nation in the past, as indicated in the preceding trial, earlier in the trial, was sufficient grounds to terminate her, and when I felt that she did this, there was just no more; I just could not consider continuing her any more. Hernandez testified as follows to her termination inter- view: A. Yeah, sometime in the early afternoon, Bud asked me to step into Dr. Keenan's office, so he es- 2i As is noted hereinabove, the selection of Cupler to help improve the service on the night shift because it needed a "good tech" tends to confirm my finding hereinabove that his poor evaluation on October 28, 1974, was discriminatorily motivated corted me in and Dr. Knight was there, and I think, Dr. Goldfarb was there, if I remember correctly. Anyway, he asked me for my letter of resignation. Q. Who asked you? A. Dr. Keenan. Q. All right. A. And I told him no. So, then he handed me the check, dated-I am sure it was dated on a Friday; it was already made out. The check, I think, was two days old, anyway. This was on a Monday that I went in. So, I asked him if it had all the holidays and over- time and he said they didn't have it completely item- ized. Anyway, I think I asked Mr. Williamson if that meant Placerville, too, and Dr. Keenan said, "You are all through at Western Clinical." So, I said, "Cheers" and walked out. It is noted that she asked about her employment at "Pla- cerville." This referred to the fact that she had been work- ing part time in the laboratory at Marshall Hospital (which is located in Placerville) since November 1974 and that the laboratory had been taken over by WCL effective Febru- ary 1, 1975. It appears that she was working 40 hours per week at WCL in Roseville and that sometime before she was hired at the Marshall laboratory she requested of Oda that she be permitted to work part time and to change her shift so she could work at the Marshall laboratory as well. It further appears that Keenan finally arranged to permit her to work at Roseville three 8-hour days per week (which gave her enough hours per week to participate in WCL's profit-sharing plan and insurance coverage). This indicates that Keenan was willing to accomodate her despite her professed belief in the desirability of union representation and her above-mentioned insubordinate conduct following Young's termination. Based on credited testimony, it is found that on March 5, 1975, three technologists working on the 3 to 11:30 p.m. shift reported to Williamson that Isabel had, at approxi- mately 8 p.m. the previous day, gone into Williamson's office, looked through files therein, and removed certain documents and photocopied them. It is further found that they did not know, however, the nature of the documents which had been removed and that Williamson relayed their report to Keenan. Williamson credibly testified that he had not at any time extended to any of the technologists the right to come in and look through any of Respondent' s files, that he was never asked by any of the technologists to see the said files, and that in the past he had never observed any technologist going through the files. Hernandez testified on cross-examination during the first hearing as follows: Q. Did you on March 4, 1975, during your shift, enter the office of Bud Williamson, the chief technolo- gist? A. I can't remember. Q. Do you recall an incident on or about that time when you entered his office, opened his desk file draw- WESTERN CLINICAL LABORATORY, INC. 751 ers, removed documents, and copied them on the of- fice copy machine? A. I got the copy of Omar's time sheet, because on Monday and Tuesday nights he is gone, he is teaching school, and he is paid full salary for that while he is gone. Q. Did you have authority from Mr. Williamson or any of the supervisors? A. No. It does not appear that any of the testimony she gave at the first hearing on direct examination was of sufficient significance to have disturbed Keenan. On the contrary, in her cross-examination a good portion of her testimony was damaging to herself (regarding her insubordinate conduct and her admission that she had copied Ahmad's records). Consequently, I am not persuaded that her testimony was considered so damaging to Respondent that it could rea- sonably be found to have motivated her discharge. On the other hand, her admission as to copying Ahmad's records did confirm the report that Keenan had received earlier (of her having entered Williamson's office, removed some doc- ument or documents, and copied them) and it also identi- fied what document she had copied (which was not known earlier). I am of the opinion that said admission motivated her discharge, there having been no prounion activity on her part which could have precipitated her discharge subse- quent to her profession of union support on June 27, 1974, and her indignation over Young's termination at the end of October 1974. In all of the circumstances, I credit Keenan's testimony (quoted hereinabove) as to the reason he discharged Her- nandez.22 Therefore, I find that General Counsel has not proved by a preponderance of the evidence the unlawful discharge of Hernandez as alleged in paragraph VIII of the second complaint. Requiring Cupler to Use Vacation Time for Days He Was Required to Be at Hearing (Paragraph IX of the Second Complaint) It is alleged that Respondent violated "Section 8(a)(3) and/or (4) and (1)" of the Act by requiring Cupler to use his vacation time for the days he was required under a subpena from the General Counsel to attend the first hear- ing. It appears that Respondent did charge him with vacation pay as alleged, except that it gave him his regular pay for 2 days, including the day he testified at the first hearmg.23 It further appears that Respondent paid all employees for the days they testified. It also appears that one other employee, Randolph, was charged for vacation time as was Cupler, but that he acquiesced in the arrangement when he in- quired as to how the time he would be at the hearing would be handled. On the other hand, it appears that Cupler 22 Also, Keenan was a convincing witness with respect to this aspect of his testimony 23 It appears from Keenan's credited testimony that he was given regular pay for the day he testified and also for one extra day in addition in case he was needed by the General Counsel or the "Court" made no such inquiry but wrote an "0" in the column for hours worked on his timecard for each day he attended the hearing. He testified without contradiction, and his testi- mony is credited, that he notified Hueners of the subpena and that he had to be present for the duration of the hear- ing. He also testified that he obtained permission from Wil- liamson to be away from work to attend the hearing, which testimony I do not credit. It is noted that while he made no request to be granted leave without pay, his marking "0" on his timecard, as above-mentioned, reasonably must have indicated to Respondent that he did not expect to be paid for the days so marked. Williamson credibly testified that he called Cupler on March 21, 1975, and asked him "what the zeros meant" and that Cupler replied that they meant "he didn't want any pay," but that he made no men- tion of being on a leave of absence. It does not appear that Williamson would have made such an inquiry of him if he had given him permission to be absent for the entire hear- ing. On March 28, Cupler received a check for the initial week of the hearing which compensated him for the days he was away from work, except apparently the day he testi- fied, by charging those days against his accumulated vaca- tion. 4 He asked Williamson why he was paid in that fash- ion and was told that it was Keenan's decision. On cross-examination Cupler admitted that he did not say anything to Williamson about leave of absence, but that Williamson told him that a leave of absence for more than I day had to be applied for in writing. On March 31, he submitted a written request that he be granted leave with- out pay retroactively for the days he was at the hearing the previous week (March 25 through March 28, 1975) and for the remainder of the time necessary to complete the hear- ing.25 Shortly thereafter he received a paycheck covering the second week of the hearing which again compensated him for the days he was at the hearing by charging it against his vacation time. It appears that his paychecks for the days he attended the rest of the first hearing were on the same basis. Williamson testified as to his understanding of WCL's leave of absence policy. (It appears that WCL' s manual is silent on the matter except for absence for "an extended period of time" with the "wish later to return to work" and there is no provision with respect to court appearances or jury duty.) His testimony is essentially that it is his under- standing, if the leave of absence is for 1 day only, the em- ployee does not lose any of his employment benefits; how- ever, if the leave of absence is for more than 1 consecutive day, the employee loses all of his benefits. Williamson testi- fied that he has in the past, while an employee of WCL, 24 It is not clear when he received regular pay for the additional day as mentioned hereinabove 25 This request was denied by Williamson by comments appended thereto setting forth the following reasons I All L 0 A s [leaves of absences] in excess of one day require prior approval 2 Present demands on the laboratory staff require maximum atten- dance It is noted that the request made no mention of a subpena and that Williamson's comment No 2 tends to indicate that Williamson was not aware that Cupler was required to be at the hearing and therefore was not available to work in the laboratory 752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD granted leaves of absence on several occasions , and more particularly, to Cupler in the fall of 1974 which Cupler requested to replace the vacation time he had taken pay for when WCL took over the laboratory on July 1, 1974. Wil- liamson, however, granted leave to Cupler for only 1 day at a time, totaling some 12 to 16 days (on Wednesdays during the hunting season). Williamson further testified that he understood that he had no authority to grant leaves of ab- sence for more than 1 day, and that such leaves of absence must be applied for in writing in advance and have the approval of Respondent's general manager. Williamson was a convincing witness with respect to the above-quoted testimony and it is credited. Keenan testified as follows as to why he arrived at the decision to charge Cupler with vacation time: I had given just a few leaves of absence , and conse- quently, I felt that on the condition of the leaves of absence I had given in the past, it was always prior notification and I checked with the General Manager to see what the policy in other practice was, and he assured me that that was the policy in practice on the Nevada side as well. It was an overall policy of the corporation that leave of absence was always request- ed in advance. Then, I checked with Mr. Logar as to his interpreta- tion of this, and after I visited with Mr. Mouchou, the General Manager, and Mr. Logar, I felt that a consis- tent application of the Western Clinical Policy would be to give vacation time and not authorize a leave of absence retroactively. Had we done it that way, it would have been an inconsistency, basically, in the policy previously ap- plied. Q. Well, had you taken into consideration that Cu- pler had marked his time sheet zero hours and that you knew where he was and his reason being absent? A. No. What I took into consideration was that to the best of my understanding he was required to testi- fy at least one day, which I had witnessed, the time he was spending in the court I did not understand to be required of him. I asked the business office to pay him one day and pay him for the additional day, in the event that either General Counsel or Court might want him to be around additionally to follow up on his testimony. It was my clear understanding that he was not re- quired to be here any additional time. Q. In other words, you had no knowledge of the fact that he had been required to be present by the General Counsel? A. I felt that his participation in the courtroom dur- ing that daily time was volitional on his part, just what he desired to do. Q. I see. Now, there were other employees who testified in these proceedings, some of them were subpoenaed; I don't recall who they were, but what action did you take with respect to the other employees who were either here on a subpoena or who testified or were present attending the hearing? Do you have any recollection of this? A. Yes, I do. All employees who were subpoenaed to court to testify were, and-did testify-who were required to be here were paid as though they had worked that day. To best of my knowledge, no leaves of absence were given to any employees for time spent in the court- room, not relating to testimony or not required by the court. Q. I don't know whether there were any who were here more than the day they were supposed to testify. Did you, with respect to any other employee, im- pose vacation time instead of leave that day? A. Yes; I believe Mr. Randolph was treated in the same way; he is the only other employee that I think stayed in the courtroom without being required, to the best of my knowledge or subpoenaed to stay in the courtroom. Q. You charged him with vacation? A. When he was testifying, during the time he was required to be here, he was paid as though he was working and any time that he spent in the courtroom, when he was not required to be in the courtroom, he was given vacation pay. Q. Any others beside Randolph? A. As I indicated to the court, those were the only two individuals that would fall into that category to the best of my recollection. Keenan was a convincing witness with respect to the above-quoted testimony and it is credited. Although Cup- ler credibly testified that he notified Hueners that he was required to remain through the entire proceeding under General Counsel's subpena, I am not satisified that I can assume that that fact or that Randolph was under a similar subpena was communicated to Williamson or Keenan. The General Counsel argues as follows: In this case Cupler spent fourteen days at the hearing at the request of General Counsel. It can readily be seen that if witnesses were required to use their vaca- tion time in order to participate in a Board hearing, they would be reluctant to do so. While most hearings admittedly do not go on for fourteen days, even one or two days off an individual's vacation schedule, which might be as little as one week per year, is significant. The required use of vacation time in these circum- stances is so "inherently destructive of employee inter- ests" that a violation may be found without need for proof of an underlying improper motive. Cf. N.L.R.B. v. Brown, 380 U.S. 278, 287; N.L.R.B. v. Fleetwood Trailer Co., 389 U.S. 375; Great Dane Trailers, Inc., 388 U.S. 26 [34]. Nor is there any legitimate, compel- ling business reason which would justify a refusal to allow an employee time off without pay while attend- ing an N.L.R.B. hearing under subpoena. Although in General Counsel's view Respondent's requiring Cupler to use his vacation time is a per se violation of the Act, it should be noted that the evi- dence demonstrates that Respondent's conduct in this regard was yet another act of deliberate discrimina- WESTERN CLINICAL LABORATORY, INC. tion against Cupler, the only named union adherent still employed by Respondent. It does not appear from all the circumstances that charg- ing Cupler with vacation time was calculated to discourage him from participating in a Board hearing or was in repn- sal for his having done so. In view of the above-mentioned uniformity of the treatment of General Counsel's witness- es, it does not appear appropriate to infer that the action taken with respect to Cupler was in reprisal for his testify- ing in the first hearing. Moreover, I do not think that that action was "inherently destructive of employee interests." It is noted that Cupler had previously elected to take pay- ment for his accumulated leave acquired before WCL's takeover of the laboratory and during the fall of 1974 had been granted by Williamson at least 12 single days of leave of absence to permit him to go hunting on Wednesdays. It would appear that in view of this fact it would be appropri- ate to assume that Cupler could reasonably have expected similar treatment in the future. In any event, I cannot as- sume that, had Cupler made a request for leave without pay upon the basis that it was necessary to comply with a subpena, it would not have been granted. True, Williamson denied Cupler's request of March 28, but there is no show- ing, and I am not persuaded, that Williamson was aware of the fact that Cupler's presence at the hearing was required by subpena. Rather, as above indicated, it appears from Williamson's second reason for his refusal that he did not know that Cupler was required to remain at the hearing but believed that he was available for duty at the laborato- ry. The fact that Respondent paid employees for the days that they were required to testify instead of making them take leave without pay indicates a willingness to cooperate with, rather than to obstruct, the Board's proceedings. In all the circumstances, I am of the opinion that Gener- al Counsel has failed to prove by a preponderance of the evidence the allegation in paragraph IX of the second com- plaint. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The unfair labor practices of the Respondent set forth in section III, above, occurring in connection with its opera- tions set forth in section 1, above, have a close, intimate, and substantial relationship to trade, traffic, and com- merce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY It will be recommended that the Respondent be ordered to cease and desist from engaging in the unfair labor prac- tices found herein and take certain affirmative action, as provided in the recommended Order below, designed to effectuate the policies of the Act. It having been found that Monte Young was unlawfully discharged on October 28, 1974, it will be recommended that Respondent be ordered to offer him immediate and full reinstatement to his former fob or, if his fob no longer exists, to a substantially equivalent position, without preju- 753 dice to his seniority or other rights and privileges. It will be further recommended that Respondent be ordered to reim- burse him for any loss of pay he may have suffered as a result of its discriminatory action against him in the man- ner set forth in F. W. Woolworth Company, 90 NLRB 289, 291-293 (1950), together with 6-percent interest thereon in accordance with Isis Plumbing & Heating Co., 138 NLRB 716 (1962). It will be further recommended that Respondent be re- quired to expunge from the personnel records of Monte Young, Thomas Gillespie, and James Cupler the evalua- tions it issued to them on September 26, 1974 (Young and Gillespie) and October 28, 1974 (Cupler). Upon the basis of the foregoing findings of fact and upon the entire record in this proceeding, I make the fol- lowing: CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union 26 is a labor organization within the mean- ing of Section 2(5) of the Act. 3. Respondent violated Section 8(a)(1) of the Act by the following conduct: (a) On June 27, 1974, Respondent unlawfully interrogat- ed employees about their union sympathy and that of their fellow employees (par. VI(a) of the first complaint). (b) On June 27, 1974, Respondent unlawfully threat- ened employees that any attempt on the part of employees to obtain a bargaining representative would be futile, and impliedly threatened an employee about his job security should he adhere to the Union (par. VI(b) of the first com- plaint). (c) On June 27, 1974, Respondent unlawfully solicited grievances from its employees and promised correction thereof in order to undermine adherence to the Union (par. VI(c) of the first complaint). (d) Respondent unlawfully attempted to cause Roseville Community Hospital to terminate Geraldine Mastin, or otherwise discipline her, for testifying for the General Counsel in the first hearing in support of General Counsel's contentions regarding Monte Young (par. VI of the second complaint). 4. Respondent violated Section 8(a)(3) and (1) of the Act by the following conduct: (a) By issuing poor work evaluations to Monte Young and Thomas Gillespie on September 26, 1974, and to James Cupler on October 28, 1974 (pars. IX(a), (b), and (c) of the first complaint). (b) By constructively discharging Monte Young on Oc- tober 28, 1974 (par. XI of the first complaint). 5. General Counsel has failed to prove by a preponder- ance of the evidence the following allegations: (a) That on July 2, 1974, Respondent violated Section 8(a)(1) of the Act by unlawfully threatening employees 26 United Association of Clinical Laboratory Technologists of Northern California, the same Association affiliated with Service Employees Interna- tional Union Local 22, AFL-CIO, and the latter organization are all re- ferred to throughout the proceeding and this Decision as the Union 754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with economic reprisals (a portion of the allegation in par. VI(b) of the first complaint). (b) That Respondent violated Section 8(a)(1) of the Act by soliciting the employees to bargain through their Asso- ciation and disaffiliate itself from Local 22 (par. VI(d) of the first complaint). (c) That Respondent violated Section 8(a)(3) and (1) of the Act by issuing written reprimands to Randolph and Cupler (par. VII of the first complaint). (d) That Respondent violated Section 8(a)(3) or (1) of the Act by terminating Cupler's overtime (par. VIII of the first complaint). (e) That Respondent violated Section 8(a)(3) and (1) of the Act by terminating Thomas Gillespie on or about Oc- tober 3, 1974 (par. X of the first complaint). (f) That Respondent violated Section 8(a)(3) and (1) of the Act by issuing poor work evaluations to Isabel Hernan- dez on October 10, 1974, and February 5, 1975 (par. IX(d) of the first complaint). (g) That Respondent violated "Section 8(a)(3) and/or (4) and (1)" of the Act by transferring Cupler and Ran- dolph to the night shift (par. VII of the second complaint). (h) That Respondent violated "Section 8(a)(3) and/or (4) and (1)" of the Act by terminating Isabel Hernandez on or about April 7, 1975 (par. VIII of the second complaint). (i) That Respondent violated "Section 8(a)(3) and/or (4) and (1) of the Act" by charging James Cupler for vacation time (instead of giving him leave without pay) for the time he was away from work attending the first hearing. Upon the foregoing findings of fact, conclusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER27 Respondent, Western Clinical Laboratory, Inc., Rose- ville, California, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Unlawfully interrogating its employees about their union sympathy and that of their fellow employees. (b) Unlawfully threatening employees that any attempt on their part to obtain union represenation would be futile. (c) Unlawfully threatening the job security of employees because of their adherence to the Union. (d) Unlawfully soliciting grievances from employees and promising to correct them in order to undermine their adherence to the Union. (e) Unlawfully attempting to cause another employer to terminate or otherwise discipline a person in its employ because he or she testified on behalf of the General Coun- sel in a Board proceeding. (f) Discouraging membership in the Union, or any other labor organization, by discrimmatorily giving employees poor job evaluations. (g) Discouraging membership in the Union, or any other labor organization, by discriminating against em- ployees in regard to hire or tenure of employment or any term or condition thereof. (h) In any other manner interfering with, restraining, or coercing employees in the exercise of rights under Section 7 of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Offer Monte Young immediate and full reinstate- ment to his former job or, if his job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay suffered by him by reason of his discriminatory discharge in the manner set forth in the sec- tion heremabove entitled "The Remedy." (b) Expunge from the personnel records of Monte Young and Thomas Gillespie the discriminatory poor job evaluations issued to them on September 26, 1974, and from the personnel records of James Cupler the discrimina- tory poor job evaluation issued to him on October 28, 1974. (c) Upon request, make available to the Board or its agents, for examination and copying, all payroll and other records containing information concerning its backpay obligation under this recommended Order. (d) Post at its place of business in Roseville, California, copies of the attached notice marked "Appendix." 28 Cop- ies of said notice, on forms provided by the Regional Di- rector for Region 20, after being duly signed by an author- ized representative of Respondent, shall be posted by Respondent immediately upon receipt thereof and be maintained by it for 60 consecutive days thereafter, in con- spicuous places, including all places where notices to em- ployees 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. (e) Notify the Regional Director for Region 20, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the allegations in the consoli- dated complaints which have been found hereinabove not to have been sustained, should be, and are, hereby dis- missed, including the allegations of the discriminatory dis- charges of Thomas Gillespie and Isabel Hernandez. 27 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 28 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 "