Baylor University Medical Center

BAYLOR UNIVERSITY MEDICAL CENTER 771 Baylor University Medical Center and Laborers Inter- national Union of North America, Local Union No. 648; and North Central Texas Laborers District Council, Laborers' International Union of North America, AFL-CIO. Cases 16-CA-5888, 16-CA- 6050, and 16-CA-6206 July 29, 1976 DECISION AND ORDER BY MEMBERS FANNING, PENELLO, AND WALTHER On April 29, 1976, Administrative Law Judge John P. von Rohr issued the attached Decision in this pro- ceeding. Thereafter, the Respondent filed exceptions and a supporting brief, and the Charging Party filed a reply brief. 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) ORDER mg the allegation of unlawful conduct alleged in the com- plaints. Pursuant to notice, a hearing was held before me in Dal- las, Texas, on June 23, 1975, and November 4, 5, and 6, 1975. Briefs were received from the General Counsel, the Respondent, and the Charging Party on December 15, 1975, and they have been carefully considered. Upon the entire record in this case, and from my obser- vation of the witnesses, I hereby make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Baylor University Medical Center is a Texas corpora- tion, with its principal office and place of business located in Dallas, Texas, where it maintains and operates a non- profit hospital. During the 12 months preceding the hear- ing herein, Respondent purchased goods or services valued in excess of $50,000 from points and places outside the State of Texas . The parties concede, and I find, that Re- spondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Laborers International Union of North America, Local Union No. 648, AFL-CIO; and North Central Texas La- borers' District Council, Laborers International Union of North America, AFL-CIO, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. 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 and hereby orders that the Respondent, Baylor University Medi- cal Center, Dallas, Texas, its officers, agents, succes- sors, and assigns, shall take the action set forth in the said recommended Order. 1 Respondent's motion for oral argument is hereby denied In our judg- ment the record, including exhibits and briefs, adequately presents the is- sues and the positions of the parties DECISION STATEMENT OF THE CASE JOHN P. VON ROHR, Administrative Law Judge: Upon charges, duly filed, the General Counsel of the National Labor Relations Board, by the Regional Director for Re- gion 16 (Fort Worth, Texas), issued consolidated com- plaints against Baylor University Medical Center, herein called the Respondent, alleging that it had engaged in cer- tain unfair labor practices in violation of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended, herein called the Act.I The Respondent filed answers deny- III. THE UNFAIR LABOR PRACTICES A. The No-Solicitation, No-Distribution Rule; Respondent's Enforcement Thereof Preliminarily, and as the only background in this pro- ceeding, it is noted that the Charging Union commenced an organizing campaign among Respondent's employees in about September or October 1974. At this time Respon- dent maintained a no-solicitation, no-distribution rule which, as set forth in an employee handbook entitled "Working at Baylor" and under the section entitled "Im- mediate Discharge" stated as follows: An employee may be discharged without notice when his presence constitutes a significant problem to the Medical Center or when he engages willfully in con- duct which is detrimental to the welfare of the Medi- cal Center. The following are examples of causes for immediate discharge: s 7. Engaging in any type of sales or solicitation ac- tivity, any distribution of literature, or other com- 1 The complaint in Case 16-CA-5888 issued on April 18, 1975, based upon a charge filed on January 31, 1975 The complaint in Case 16-CA- 6050 issued on July 31, 1975, based upon a charge filed on May 6, 1975. The complaint in Case 16-CA-6206 issued on October 20, 1975, based upon a charge filed on September 4, 1975. 225 NLRB No. 102 772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mercial activity among patients, visitors, employees or others on or adjacent to the hospital property without written administration approval. Thelma Goolsby, a clerical, was one of Respondent's employees to become active in the organizational cam- paign. It is undisputed that on December 2, 1974, she was summoned to the office of Gary Robinson, the administra- tor of Truett Hospital.2 Robinson testified that he spoke to her at this time because earlier that day he had received a report that she had "handed an envelope with union cards" to another employee to distribute and that this had oc- curred while both "allegedly were on duty." Concerning this conversation, Robinson related that he asked Goolsby if she had been soliciting in any way, to which she replied, "Well, it wasn't on company time." He then showed her the employee handbook and referred her to the rule cited above. Quoting Robinson, he testified further: "I just gave her some examples and told her that if she, indeed, was soliciting that it could be grounds for termination in the future." 3 Approximately 2 weeks later, Goolsby had a conversa- tion with James Reedy, an assistant unit manager at Truett. Reedy asked if he had correctly observed her and another employee handing out literature on a sidewalk out- side the hospital. When Goolsby confirmed that she had, Reedy asked why she would engage in this activity after Robinson had already called her down to the office and spoken to her about Respondent's no-solicitation rule. Goolsby responded that she had handbilled on her own time and, further, that the Federal Government gave her the right to unionize if she so desired. According to Gools- by, Reedy thereupon "asked me why would I give them something to put their finger down on me after I had been told of the solicitation rule, and that whoever told me about the Federal Government rule that they should go back and read it again." ° That Respondent intended to enforce the aforenoted no- soliciation, no-distribution rule is further reflected in a let- ter to the Truett employees dated December 23, 1974. I set forth this letter in its entirety not only because it reflects Respondent's policy with regard to the rule, but also be- cause its antiunion tone is relevant background to the ter- mination of Barbara Moseley, whose discharge is also at issue herein. The letter stated as follows: To: ALL PATIENT SERVICE EMPLOYEES , TRUETT HOSPITAL As you probably know, there is an effort to unionize some of our employees . Several employees have asked our advice on this matter. We believe that a union would not be in the best inter- ests of employees or of the institution. 2 Truett Hospital is one of five hospitals which constitute the Baylor Uni- versity Medical Center. 3 Goolsby testified that she distributed union leaflets and union authori- zation cards during this period, but that this was done either in the cafeteria or in the area of the parking lot during her nonworking time ° The above conversation is set forth in accordance with the credited testimony of Goolsby. Insofar as Reedy's version of this conversation dif- fers with that of Goolsby, from my observation of the witnesses, I do not credit it Patient care requires teamwork among all employee groups. Union tactics could interrupt patient care. Their real leaders are outsiders and do not under- stand the loyalty we have to each other and to pa- tients. Each employee's right to deal directly with his em- ployer on his individual needs and interests is a pre- cious thing. With unions, the decisions would be made through lawyers and negotiators, which would be unsatisfactory both to the employee and to the Medical Center. Baylor regularly reviews wages and benefits and has increased them every year for many years. In this, it has been a leader among hospitals. In 1974, wages were increased twice and another holiday was add- ed. The union has stressed the legal rights of employees to join unions under new Federal law. The law also pro- tects the rights of individual employees who do not wish to join. Since we are convinced of the negative impact of unions on our employees and patients, we will exercise all of the rights an employer has under the Federal law. For several years, the Medical Center has had a policy against solicitation or the distribution of non- authorized literature on hospital premises by anyone. The new Federal law does not change this policy. Contacting employees at work is a violation of it and we hope that employees will not be misled into such violations. You are encouraged to contact your supervisor or me directly if anyone pressures you to sign anything or interferes with your right not to join. You can count on our keeping this in confidence. It is undisputed that on June 21, 1975, Respondent pro- mulgated the following additional no-solicitation, no-dis- tribution rule: 5 Solicitation of patients or visitors by anyone on Baylor University Medical Center property is strictly prohibited. Solicitation of employees of Baylor Uni- versity Medical Center by non-employees or the distri- bution of literature, pamphlets or other material by non-employees on Baylor University Medical Center property is prohibited. Unauthorized sales and solicitation of orders for any type of product or service to anyone on Medical Center premises are prohibited. Solicitation of employees of Baylor University Med- ical Center by other employees or distribution of liter- ature between employees is prohibited during work time and/or in work areas. The term "work areas" includes patient care floors, hallways, elevators or any 5 The allegation that Respondent "promulgated" this rule is admitted in Respondent's answer While the record is not clear on the subject, presum- ably the rule was reduced to writing and posted and/or distributed to its employees There is no showing that the original rule set forth in the em- ployee handbook was ever revoked BAYLOR UNIVERSITY MEDICAL CENTER 773 other area, such as laboratories, surgery or treatment centers, where any type of service is being adminis- tered to or on behalf of patients and also includes any areas where persons visiting patients are likely to be disturbed. Service to our patients and their visitors in- cludes not only primary and acute medical care, but food service and psychological support. The Board's decision in the St. John's case is controlling here.' Accordingly, I find that by promulgating and main- taining an unlawful no-solicitation, no-distribution rule to the extent that it prohibits all solicitation and distribution on Respondent's property and in hospital areas other than immediate patient care areas Respondent violated Section 8(a)(1) of the Act. B. Conclusions as to the Rule and Its Enforcement It is well settled that the rule initially set forth in the employee handbook which prohibits solicitation and distri- bution of literature on the premises by anyone is invalid on its face. Although citation of authority is hardly required, see, for example, Summit Nursing and Convalescent Home, et al., 196 NLRB 769 (1972), and authorities cited therein. Insofar as the rule promulgated by Respondent on June 21, 1975, is concerned, this rule is substantially the same as that found to be unlawful in St. John's Hospital and School of Nursing, Inc., 222 NLRB 1150 (1976). Respondent in this case raises the same contention raised by the employer in the St. John's case, namely, that the nature of a hospital is such that they are justified in maintaining broad no-solici- tation, no-distribution rules. Recognizing that prohibiting solicitation in certain areas in the hospital may be justified, but finding that the rule in question was unlawful in that it prohibited all solicitation and distribution in all areas to which patients and visitors have access, the Board stated as follows: We recognize that the primary function of a hospi- tal is patient care and that a tranquil atmosphere is essential to the carrying out of that function. In order to provide this atmosphere, hospitals may be justified in imposing somewhat more stringent prohibitions on solicitation than are generally permitted. For example, a hospital may be warranted in prohibiting solicitation even on nonworking time in strictly patient care areas, such as the patient's rooms, operating rooms, and places where patients receive treatment, such as x-ray and therapy areas. Solicitation at any time in those areas might be unsettling to the patients-particularly those who are seriously ill and thus need quiet and peace of mind. Consequently, banning solicitation on nonworking time in such areas as described above would seem justified in hospitals and to the extent that Respondent's rule prohibits such activity in those ar- eas it is valid. Respondent's broad restrictions, however, are not justified by these considerations insofar as they apply to other areas. As to the restriction in visitor access areas other than those involved in patient care, the possibility of any disruption in patient care resulting from solicitation or distribution of literature is remote. As to the restrictions in patient access areas such as cafeterias, lounges, and the like, we do not perceive how patients would be affected adversely by such ac- tivities. On balance, the interests of patients well enough to frequent such areas do not outweigh those of the employees to discuss or solicit union representa- tion. [Footnote omitted.] C. Surveillance A union meeting was held at the Dr. Martin Luther King Center, Dallas, Texas, on or about August 27, 1975. The meeting was conducted by a paid organizer of the Charg- ing Union, with employees of Respondent in attendance. It is undisputed that this meeting was also attended by Robert C. Felder, the administrator of the pulmonary serv- ices department and a supervisor within the meaning of the Act. Employee Thelma Goolsby testified that near the out- set of the meeting she saw Felder enter the room with an- other man and pick up some union literature which was displayed on a table near the entrance. Felder and the other individual then took a seat near the back. Felder remained for 15-30 minutes and then departed. Felder explained his presence at the meeting by testify- ing that, as he was driving home around 4:30 p.m., he heard an announcement over the radio that there would be "a big hospital workers meeting at Martin Luther King Center at 7:00 p.m." He said that the reason he attended the meeting was because "it was advertised as a Health Care Workers' meeting and I am a Health Care Worker." He further asserted that he was not aware that the meeting was in fact a union meeting until this was made clear from the remarks of the organizer when she addressed the meet- ing and that he left the meeting at this point. Felder conceded that for some time prior to the meeting he was aware of the organizational campaign among Respondent's employees and that he had also seen various union handbills and literature, including union authoriza- tion cards, which were distributed to the employees. He also conceded that at the meeting he recognized Goolsby and two other Respondent employees in attendance. I cannot conceive that Felder was so naive as to not suspect that the meeting concerning which he heard the announcement was anything other than a union meeting. I do not credit his testimony to the contrary. In any event, assuming arguendo that he did not know the purpose of the meeting, it hardly seems that it should take him 15-20 min- utes to find out. From my observation of the witnesses, and in consideration of the entire circumstances involved, I am persuaded that Felder was primarily motivated to attend the meeting for reasons proscribed by the Act, namely, to engage in surveillance. I find that by such conduct Respon- dent violated Section 8(a)(1) of the Act. D. The Discharge of Barbara Moseley Barbara Moseley was hired by Respondent on February 'See also the recent decision in Baptist Hospital, Inc, 223 NLRB 344 (1976) Both of these cases were decided subsequent to the hearing and filing of briefs herein 774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1 or 2, 1975, as a special accounts collection assistant. Her principal duties involved the reviewing and posting of dis- counts for physicians, clergymen, and Baylor Hospital em- ployees and to review accounts with bad debt charges. Respondent's rules provide that all employees are hired on a probationary basis for a period of 3 months. Moseley was terminated at the end of her probationary period; i.e., on May 1, 1975.7 After learning about the organizational activity in April, Moseley presented herself to representatives of the Union and let it be known that she wished to become an organiz- er. The Union promptly accepted her services but advised her that, in accordance with its policy, Respondent should be apprised of this role. Accordingly, Moseley signed a form letter provided by the Union. This letter, bearing the date indicated, was sent to Respondent by the Union and stated as follows: 04/11/75 GENTLEMEN: We the undersigned are members of the Laborers' In- ternational union of North America, AFL-CIO, and are actively engaged in building a union at BAYLOR UNI- VERSITY ME151CAL CENTER. This letter is to inform you that we intend to do our job, as we have in the past, with no interference with our duties. However, we are cognizant of our rights under federal law, which grants us the right to be members of the union and work in its behalf without threats of discharge or intimidation from manage- ment. It should not be presumed from our activities on the behalf of the union that we have animosity toward our supervision or management. It is our opinion that our rights as employees are best served when we bargain collectively with our employer. Very Truly Yours, Barbara Moseley EW cc: Mr. Edwin Youngblood, Regional Director National Labor Relations Board The above letter was received by Respondent on Mon- day, April 14. In mid-afternoon of the same date, April 14, Moseley was summoned to the personnel office. She was there greeted by Allan Sutton, the director of business serv- ices; Elvis Bates, the director of personnel services; and David Reynolds, Moseley's supervisor, who is the manager of discharged patients accounts. Bates began by handing Moseley the following letter and asking her to read it: Dear Mrs. Moseley: This is to confirm that Baylor University Medical Center has a policy concerning distribution of litera- ture and solicitation of employees. You are advised that solicitation of employees and/or distribution of literature to them by you during your work time and 7 All dates hereinafter refer to the year 1975 their work time, or in the Business Office, is prohib- ited. We have confirmation that you have violated this rule. Be advised that any further violation of it will be grounds for immediate termination in accordance with Baylor policies. If you have any questions about the meaning of this warning, please discuss them with me. Cordially yours, [Elvis E. Bates, Director Personnel Services] Upon reading the letter, Moseley inquired as to the na- ture of the solicitation which prompted the charge that she had engaged in any such activity. Bates replied that he was not obliged to reveal the source. When Moseley repeated the question and asked what type of literature she was sup- posed to have distributed, Bates answered, "Well, you know." Moseley rejoined, simply, that she was aware of Respondent's no-solicitation rule. Bates thereupon stated, "Well, we want you to be the best employee that you can." At this point, Reynolds spoke up to say, "Well, I don't see any problem with her work." g Moseley finally asked if they had not been informed by the Union of her intent to work on its behalf. Bates stated, "Oh, you signed the let- ter," and then asked, "When did you sign it?" Moseley replied that she had done so on the preceding Friday. Bates thereupon ended the discussion with the statement, "Well, I don't feel we have anything further to talk about." How- ever, as Moseley was leaving the office, Reynolds asked if she would give him the letter which she had received from Bates. Moseley declined, stating that she wished to retain it 9 For the apparent purpose of explaining the reason for calling in Moseley on this particular date, Respondent called Karen Hopkins to testify on its behalf. Hopkins, an employee, holds the position of accounts counsellor. On direct examination, Hopkins testified that around 1 p.m. on April 14 she went to Moseley's office to see employees Lee Cooksie and Lois Ford, who also worked there, about business. At that time, she said, Moseley stopped her, asked if she was interested in the Union, and handed her three pieces of union literature. Hopkins' testimony on cross-examination was more enlightening. In the first place, on cross she could not give any valid reason for pinpointing the date of this incident as being April 14. Sig- nificantly, in her prehearing affidavit, given 4 months earli- er, she stated, "I don't remember the date when this oc- curred." Furthermore, in the affidavit she also stated, "No one put me up to seeing if Moseley was working for the Union. I just did it on my own." In the latter connection, Hopkins conceded that upon entering Moseley's office it was she, Hopkins, who brought up the subject of the Union. She said she did this by asking Cooksie what she thought about the Union. It was at this point, she then testified, that Moseley spoke up and asked her if she was interested in knowing about the Union; and at this point 8 Credited testimony of Moseley Moseley impressed me as being a truth- ful witness 9 Although Reynolds denied that he asked for the letter, I do not believe that Moseley fabricated the above testimony and I credit it BAYLOR UNIVERSITY MEDICAL CENTER 775 Moseley handed her the literature. Furthermore, it is inter- esting to note, as Hopkins conceded, that upon receiving the literature she promptly went to the office of Ray Gwinn, the accounts manager, who is on the same supervi- sory level as Reynolds, and gave him the literature. Hop- kins conceded that she was on her working time when she brought up the subject of the Union and that she was aware that this was against the rules. She also conceded that on other occasions she would turn over union litera- ture to Gwinn and that she and Gwinn would discuss the Union during working hours. If Respondent sought to show through the testimony of Hopkins that Moseley was confronted and warned by three Respondent officials on April 14 because she alleged- ly solicited Hopkins on that day, it failed its purpose. Not only was Hopkins' testimony inconsistent with her pre- hearing affidavit, but she was also less than forthright in giving her testimony on direct examination. In short, I do not credit her testimony that on April 14 Moseley broached her about the Union. To the contrary, I credit the testimony of Moseley that she did not pass out any litera- ture prior to April 14. Moreover, it is not without signifi- cance that two of the principals on that day, namely Bates and Sutton, were not called as witnesses by Respondent to give an explanation for their calling in Moseley on April 14. As for Reynolds, who was called, he indicated only that it was Bates who decided to call Moseley in. As to the purported reason for Bates taking this action, Reynolds testified merely that "Mr. Bates did indicate that he had received notification that Ms. Moseley had violated Baylor's solicitation rule and he wanted to make sure she understood this rule and this policy." As previously noted, Respondent received a letter notify- ing it of Moseley's affiliation with the organizing campaign on April 14. Although the parties did not stipulate as to the time of day the letter was received, it is noteworthy that Moseley was not called to the office until midafternoon of that date. Upon the entire record in this, and in the light of the discussion set forth above, including the absence of any testimony or credible explanation by the Respondent wit- nesses involved for taking this action, I am persuaded and find that this action was prompted entirely by Respondent's receipt of the letter in question on that date.10 Continuing with the chronology of events, it was on the next day, April 15, that Reynolds prepared a highly critical report concerning Moseley's work performance. More will be said about this in the succeeding section of this Deci- sion. This report, which Reynolds said he retained in his files, was not shown or discussed with Moseley. It reads as follows: On Monday, March 17, 1975, the weekly data pro- cessing run of DA Accounts (Debit Balance) was re- ceived as usual by me, and I noticed an unusual large number of accounts on the run. There were approxi- mately 80 accounts rather than the usual four or five. Upon scrutinlLing the accompanying statements, I discovered that about 75 of the debit balances had been created by erroneous postings by Mrs. Moseley on March 15, 1975. 1 had a conference with Mrs. Moseley on March 17, 1975, at which time I carefully reviewed her errors with her, and instructed her on the proper corrective turn-around which I wanted accom- plished during the week. However, on Monday, March 24, 1975, upon receiv- ing the weekly data processing run of DA Accounts (Debit Balances), I noticed that none of the errors had been corrected by Mrs. Moseley, as I had thoroughly instructed her the previous Monday, I again had a conference with Mrs. Moseley, this time on March 24, 1975, at which time I questioned her as to why she had not accomplished the turn-around as I had instructed her. She had no answer-or rather, said that she didn't know why. Therefore, I again carefully instructed her on how to properly correct the errors she had made on March 15, 1975. 1 even filled out a sample Accounts Receiva- ble Memo form for her to use as a guideline in her corrections. Sure enough, on Monday, March 31, 1975, a review by me of the weekly data processing run of DA Ac- counts revealed that only half of the errors had been corrected. I again had a conference with Mrs. Mose- ley, at which time I expressed my dissatisfaction and disappointment over her failure to perform the turn- around as I had twice explicitly instructed her to do so. She again had no answer as to why only part of the accounts had been corrected. Again, I gave her in- structions on how to properly correct the errors she had made on March 15, 1975. On Monday, April 7, 1975, a review by me of the weekly data processing run of DA Accounts revealed that all but about 10 of the errors had been corrected. I repeated the instruction session once again with Mrs. Moseley, who again had no explanation as to why some of the accounts had not been turned around by her. On Monday, April 14, 1975, there still appeared one account which was handled erroneously by Mrs. Moseley on March 15, 1975, which still had not been corrected as she had been instructed by me, not once, but on three different occasions. For Mrs. Moseley to take an entire month to ac- complish a corrective turn-around which could and should have been done in only a matter of minutes, indicates to me a lack of aptitude and an unwilling attitude to perform her assigned duties. The foregoing is a classic example of substandard work performance which would indicate that Mrs. Moseley does not have the potential for being a good employee on a long- term basis. [David D. Reynolds] 10 I do not construe the testimony alluded to by Respondent as indicative that Respondent did not, in fact, receive this letter prior to calling Moseley to the office Moseley was terminated on May 1, 1975. Called before Sutton and Reynolds, Sutton at this time handed her the following letter: 776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Dear Mrs. Moseley: You will recall that when you were selected for Baylor employment as a Collection Assistant in the Dis- charged Patient Accounts Office, you were advised that for all employees the first three months of em- ployment is a probation period. The probation policy is set forth also in Baylor's gen- eral information handbook, Working at Baylor. Your overall duty performance in your position has been less than satisfactory over this probationary pen- od for reasons that have been brought to your atten- tion. This is notice that your employment with Baylor Uni- versity Medical Center will be terminated at the end of your duty schedule on May 1, 1975. Sincerely, [Allen D. Sutton] A rather lengthy conversation ensued at this time in which Moseley essentially protested the basis for her dis- charge. When she finally asked if the decision to discharge her was influenced by her union activities, Sutton replied that he was not at liberty to discuss the matter and that he considered the discussion closed. E. Respondent's Defense; Conclusions as to Moseley As indicated in Sutton's May I letter to Moseley, it is Respondent's contention that Moseley was terminated at the end of the 90-day probationary period because her work performance had been less than satisfactory. Upon consideration of all the facts and the entire circumstances discussed below, I do not agree. In support of the assertion that Moseley was not a satis- factory employee, Respondent introduced 15 exhibits (Resp. Exhs. 6-20) which consist of patient account re- cords showing errors for which Moseley was purportedly responsible. However, it was conceded that eight of these documents, since they were in the nature of computerized running accounts, were not printed, and hence not avail- able to Reynolds, until after Moseley had been terminated. Accordingly, and as Reynolds conceded, his decision to recommend Moseley's termination was not, and could not be, predicated upon consideration of whatever these docu- ments purported to show. In short, these documents were not uncovered by Respondent until some point after Moseley's termination and undoubtedly were sought out in preparation for the proceeding herein. I therefore can but regard them as of little probative value in assessing the motive for the termination. The records which fall into this category consist of Respondent Exhibits 9 and 11 through 19. I turn now to the exhibits which reflect purported errors made by Moseley prior to her termination. Preliminarily, it is noted that Respondent's billing statements and related data are prepared and issued by means of a complicated system of code numbers which are first entered into a man- ually operated keypunch system and then fed into a com- puter. There are 7,000 such transactions fed to the key- punch daily. Although Moseley was responsible for initially determining the correct code numbers, her func- tion did not include operation of the keypunch or of the computerized data processing system. According to Reyn- olds, there are a combination of digits which make up be- tween 300 and 400 financial classification codes, alone. The first of the exhibits, Respondent Exhibit 6, is a patient billing statement which reflects, inter alia, an entry stating "Routine Employee Exam." According to Reynolds, this was an error and should have read "Address Correction." The error was caused because Moseley used the wrong code number and this was entered manually into the key- punch system, resulting in the entry stated." The exhibits reflect that two such mistakes were made on April 18, 1975. There is no evidence that the recipients of the two state- ments made any complaint and it is obvious that there was no monetary loss sustained by either Respondent or the hospital. Respondent Exhibit 7 consists of four statements reflecting mistaken entries of employee discounts. These are statements of employee patients who are entitled to a discount, the payments being made by payroll deductions. As I interpret it, two of the documents reflect credit bal- ances because of the payroll deduction entries instead of one. The other two reflect similar irregular credits or de- ductions, but they were corrected before being sent out. Respondent Exhibit 8 is the billing statement of a nurse. As I interpret Reynolds' testimony, it appears that she was credited with a nurse's discount whereas, since she was married to a doctor, she was entitled to a doctor's discount, which was somewhat higher. In any event, the difference amounted to $5.10 and was credited to the nurse's account by the refund clerk 2 weeks later. Reynolds said the error had been called to Moseley's attention and should have been corrected by her 2 weeks earlier. Concerning this type of mistake, Reynolds on cross-examination conceded that "Others [employees] have made similar errors, yes." Re- spondent Exhibit 10 is a statement to a doctor. After reflect- ing one insurance payment and two Blue Cross payments, the statement shows a current balance due of $4.91. The error consisted in a failure to give a physician's discount, which would have resulted in no balance being due. Addi- tionally, Moseley rubberstamped the bill "Your insurance company paid its portion of this statement. The balance is your responsibility. Please remit." Reynolds testified that this stamp should not have been placed on the statement because it is the hospital's policy not to use this stamp on the statements of physicians. Respondent Exhibit 20 requires a fuller discussion. This exhibit consists of records of bad debt accounts. Although Reynolds' testimony was not technically clear on the point, as best I understand it, the bad debt accounts should not reflect a debt balance or a credit balance. "They're written off," he said, "to bad debt in the account from an audit viewpoint as a zero balance." In any event, this exhibit reflects that, in the month of March 1975, 80 such accounts incorrectly reflect a debt balance rather than a zero bal- ance. Significantly, these errors came to Reynolds' atten- tion on March 17, 1975, and Moseley conceded that at this time Reynolds came to her and asked why "we would make such a large mistake." However, Moseley testified 11 The code used was 38-7363 It should have been 38-7393 BAYLOR UNIVERSITY MEDICAL CENTER 777 that she explained to Reynolds that she had followed the notes pertinent to the subject left by her predecessor, Rita Carpenter.12 According to the unrefuted testimony of Moseley, Reynolds called Carpenter and Carpenter agreed that the notes were in error. In any event, Moseley was instructed as to the correct procedure and she proceeded to correct the errors. Moseley testified that in so doing she came in on her own time and made the corrections in I day. Reynolds testified that all the corrections were not made for about a month. Moseley testified, however, that after the mistake was uncovered and the problem solved nothing further was said to her about the matter.13 I turn now to my conclusions. It is, of course, well settled that the Board may not substitute its judgment for that of any employer in determining whether an employee's work performance, or whatever other reason, is, in the employer's view, a justifiable ground for termination. I should not attempt to do this here. Nevertheless, in de- termining whether Moseley was discharged because of her union activity, as the General Counsel contends, or wheth- er she in fact was terminated because she failed to perform her job properly, as Respondent contends, an assessment of the evidence in support of the employer's claims must be made. As has been discussed above, the fact that Moseley did make mistakes during her 3-month period of employment is not open to question. But this is hardly surprising. Con- sidering the fact that, as a new employee, her job required that she become familiar with 300-400 financial classifica- tion codes, the fact that 90 percent of the 7,000 account transactions are processed through the business depart- ment where Moseley worked, and the fact that there are various different types of forms and statements involved in the processing of the accounts, it would appear that certain errors are bound to creep in. But I need not speculate on the matter, for even Reynolds admitted this to be true. In this connection, it is noteworthy that prior, during, and after Moseley's period of employment Respondent admit- tedly had an "ongoing" problem with the keypunch opera- tion which submitted documents to data processing, that this was a factor which directly affected the efficiency of the work entailed in Moseley's job, and that it contributed to the likelihood of errors being made. Moreover, indica- tive of the complexity of the work involved, it is significant to note that, after Moseley was terminated, the duties of her job were assigned to two employees. Although these employees also performed some other work, Reynolds tes- tified that Moseley's work was divided between them be- cause, "it would have put too much responsibility upon one person, so we shifted it to someone else." Although Reynolds testified that at times he cautioned Moseley to the effect that she was making "too many mis- takes," he conceded that he did not give her any warning to the effect that she was not doing her work properly. Mose- ley testified that the only time that Reynolds expressed 12 Moseley was hired to replace Carpenter when Carpenter indicated that she was permanently retiring to have a child Carpenter remained on thejob to help train Moseley for a period of 5 weeks 13 1 shall have further comment below concerning any criticism or warn- ings given to Moseley during the period prior to her termination concern to her about mistakes were those committed in March as reflected in Respondent Exhibit 20. However, as previously related, Reynolds subsequently accepted her ex- planation that these occurred because of incorrect instruc- tions left to her by her predecessor. On the entire record, I am persuaded and find that during her entire period of employment Moseley was not subject to any more criticism than might be expected of any new employee. In fact, it appears that dust the opposite was true, for Moseley credi- bly testified that, at one point prior to her termination, Reynolds introduced her to the keypunch operator as "the crackerjack new employee." 14 I have previously set forth the memo which Reynolds prepared and placed in Moseley's personnel file on April 15. I find incredible Reynolds' assertion that the occasion for his taking this action on the very day following Moseley's being taken to task by three Respondent offi- cials for allegedly violating an unlawful no-solicitation rule was just a matter of coincidence. Indeed, even a cursory reading of that memo impels the distinct impression that it was prepared as groundwork for future action.15 This is particularly true when it is considered that the subject mat- ter related to errors that had occurred in March and had for the most part long been corrected.16 Moreover, absent an outside reason, it seems peculiar that Reynolds would take the time to show the memo to his superior, as he con- ceded doing, prior to placing it in Moseley's file. Apart from the other violations herein found, Respondent's union animus was clearly demonstrated when, upon learning of Moseley's union activities, it pro- ceeded to summon her before three high echelon supervi- sors and warn her, without apparent provocation, to com- ply with its unlawful no-solicitation rule. This was in rather sharp contrast to its permitting Karen Hopkins, who was clearly opposed to the Union, to discuss the current union activity with her supervisor during working hours. In sum, and for all the reasons above set forth, I find that Respondent discharged Moseley because of her activi- ty in support of the Union and to discourage union activity among its employees. It thereby violated Section 8(a)(3) and, derivatively, Section 8(a)(1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operation of Re- spondent described in section I, above, have a close, inti- mate, and substantial relationship to trade, traffic, and 14 Reynolds denied introducing her to the keypunch operator as a crack- erjack employee and said that he could not recall describing her in such terms to any other supervisor I do not believe that Moseley fabricated this testimony, and, as indicated above, I credit her on the point 15 Reynolds' memo of April 15 includes the setting forth of certain con- versations which he allegedly held with Moseley during the period indi- cated To the extent that Reynolds did not give sworn testimony concerning these individual conversations, which he largely did not, I do not accept as fact the accounts of these conversations as stated in the memo 16 Reynolds testified that it was not uncommon for Respondent to termi- nate unsatisfactory employees prior to the expiration of their probationary period It might well be questioned why Respondent did not take similar action with respect to Moseley if in fact her performance were such as that characterized in Reynolds' memo 778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in certain conduct in violation of Section 8(a)(1) and (3) of the Act, I shall recommend that Respondent be ordered to cease and desist therefrom and to take certain affirmative action, as set forth below, designed to effectuate the policies of the Act. It having been found that Respondent discharged Bar- bara Moseley in violation of Section 8(a)(3) of the Act, I shall recommend that Respondent be ordered to offer her full and immediate reinstatement to her former position or, if this position no longer exists, to a substantially equiva- lent position, without prejudice to her seniority and other rights and privileges and to make her whole for any loss of earnings she may have suffered from the date of her dis- charge to the date of Respondent's offer of reinstatement. Backpay shall be computed in accordance with the formu- la prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest thereon computed in the manner and amount prescribed in Isis Plumbing & Heating Co, 138 NLRB 716 (1962). In view of the nature and extent of the unfair labor prac- tices herein found, it will be recommended that Respon- dent be ordered to cease and desist from in any manner infringing upon the rights guaranteed employees in Section 7 of the Act. CONCLUSIONS OF LAW 1. Baylor University Medical Center is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By engaging in the conduct described in section III, above, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. On the basis of the above findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: nonworking time in any area of its hospitals or on its out- side premises other than immediate patient care areas. (b) Engaging in surveillance of its employees' union meetings or activities. (c) Discouraging membership in Laborers International Union of North America, Local Union No. 648, AFL- CIO; and North Central Texas Laborers' District Council, Laborers International Union of North America, AFL- CIO, or any other labor organization by discharging em- ployees or otherwise discriminating in any manner in re- gard to their hire or tenure of employment or any term or condition of employment. (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights guaran- teed them in Section 7 of the Act. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act: (a) Offer Barbara Moseley immediate reinstatement to her former position or, if this position no longer exists, to a substantially equivalent position, and make her whole for any loss of pay she may have suffered by reason of the discrimination against her in the manner set forth in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records neces- sary to analyze the amount of backpay due under the terms of this Order. (c) Rescind its rules restricting the areas in which em- ployees may solicit on behalf of a labor organization dur- ing the employees' nonworking time insofar as it applies to other than immediate patient care areas, and prohibiting distribution of union literature during employees' non- working time in nonworking areas of its operations or on its outside premises. (d) Post at its hospital facilities in Dallas, Texas, copies of the attached notice marked "Appendix." 18 Copies of said notice, on forms provided by the Regional Director for Region 16, after being duly signed by Respondent's representative, shall be posted by it immediately upon re- ceipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Rea- sonable 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 16, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. ORDER 17 The Respondent, Baylor University Medical Center, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Promulgating, maintaining in effect, enforcing, or applying any rule or regulation prohibiting employees from soliciting on behalf of any labor organization during their 17 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 18 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 Judgement of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " BAYLOR UNIVERSITY MEDICAL CENTER 779 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT promulgate , maintain, or enforce any rule or regulation which prohibits our employees from soliciting on behalf of any labor organization on our hospital premises or grounds other than immediate pa- tient care areas during employees' nonworking time, or from distributing other than in immediate patient care areas literature on behalf of any labor organiza- tion in nonwork areas of our hospital , or on our grounds during their nonworking time. WE WILL NOT reprimand or warn employees for en- gaging in union activities. WE WILL NOT engage in surveillance of our employ- ees' union meetings or union activities. WE WILL offer Barbara Moseley immediate and full reinstatement to her former position or, if this position no longer exists, to a substantially equivalent position, without prejudice to her seniority and other rights and privileges and WE WILL make her whole for any loss of earnings she may have suffered by reason of her un- lawful discharge. WE WILL NOT in any other manner interfere with, restrain , or coerce employees in the exercise of their rights guaranteed in Section 7 of the Act. All our employees are free to become or remain or to refrain from becoming or remaining members of Laborers International Union of North America, Local Union No. 648, AFL-CIO; and North Central Texas Laborers' Dis- trict Council, Laborers International Union of North America, AFL-CIO , or any other labor organization. BAYLOR UNIVERSITY MEDICAL CENTER