Board of Trustees of City Hospital

BOARD OF TRUSTEES OF CITY HOSPITAL The Board of Trustees of City Hospital, Inc. and National Union of Hospital & Health Care Em- ployees, 1199 W. V. A. a/w Retail, Wholesale and Department Store Union and Violate Bran- non. Cases 5-CA-10989 and 5-CA-11066 January 26, 1981 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND TRUESDALE On September 12, 1980, Administrative Law Judge John M. Dyer issued the attached Decision in this proceeding. Thereafter, the Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief in support of the Administra- tive Law Judge's Decision and a brief in reply to the Respondent's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions of the Administrative Law Judge2 and to adopt his recommended Order, as modified herein. i The Respondent has excepted to certain credibility findings nmade by the Administrative Law Judge. It is the Hoard's established policy not to overrule an administrative law judge's resolutions with respect to credi- bility unless the clear preponderance of all of the relevant eidence con- vinces us that the resolutions are incorrect Standard Dry Hall Prodfuct. Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir 1951) We have carefully examined the record and find no basis fr reversiig his findings Additionally, we are satisfied that the Respondent's contclntllns that the Administrative Law Judge was biased are ultholut nmrit There i, nothing in the record to suggest that his coIndiuct at the hearing, hi, reso- lutions of credibility, or the inferences he drew were affected by any bias or prejudice 2 We agree with the Administrative Law Judge, for the reasons he stated, that Lydia Nelson was not a supervisor as defined in Sec 2(11) of the Act. We also agree that Nelson's discharge violated Sec. 8a)(3) of the Act. Applying the analysis we set forth in Wright Line, a Division of Wright Line, Inc., 251 NLRB 1083 (1980), to the evidence in this case, we conclude that the General Counsel made a prima facie showing that Nel- son's protected activity was a motivating factor in the Respondent's deci- sion to discharge her, and the Respondent did not establish an affirmative defense. As pointed out by the Administrative Law Judge, the General Counsel showed that Nelson was a knoswn unihin supporter. was the em- ployee who first contacted the Union, circulated a petition to determine employee interest in a union, and distributed union leaflets The General Counsel also demonstrated that the Respondent's management was con- cerned about Nelson's activity, felt she was a "troublemaker." therefore examined closely her work performance, her attitude, and her actixities, and determined to try to involve her in supervisory action to remove her from union activity. In addition, evidence was presented that a few weeks before Nelson's termination she had autioned the Respondent that curtailment of benefits would bring the Unilon back In response to this prima Jfcie case of discrimination the Respondent did not carry out its burden of showing that its action with respect to Nelson ould hase been the same even in the absence of protected conduct Although the Respondent contended that Nelson was a supervisor and was discharged for insubordination, the evidence did not establish the indicia of supervi- sory status required by the Act or establish that Nelson was i fact dis- charged for insubordination. Nelson. who had receited a good ealuallon 254 NLRB No. 97 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 modi- fied below, and hereby orders that the Respondent, The Board of Trustees of City Hospital, Inc., Mar- tinsburg, West Virginia, its officers, agents, succes- sors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Insert the following as paragraph 2(b) and re- letter the subsequent paragraphs accordingly: "(b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security pay- ment records, timecards, personnel records and re- ports, and all other records necessary to analyze the amount of backpay due under the terms of this Order." 2. Substitute the attached notice for that of the Administrative Law Judge. and a merit pay raise about a month before, as terminated at a brief interview at s hich she was told she did not get along with superisor) personnel, and was given little opportunity to present her posltiorl In Ihlit iltcriew, insuhordination was, not given as the reason for the tIrm nat.iln So far s Nelson knew, she was the onl_ person to has.e beenh dis- charged during her 3 years' emplosment with the Respondent APPENDIX NOTICE TO EMPI.OYEES POSTED BY ORDER OF THE NATIONAl. LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportu- nity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice. WE WILL NOT fire employees for engaging in union and concerted activities with other employees for their mutual aid and protection. WE Wll.l NOT unlawfully interrogate our employees about their union sentiments or ac- tivities or the sentiments or activities of other employees. WE WILL NOT threaten and coerce employ- ees by warning them they will be discharged for engaging in union activities. WE WILl. NOT maintain an unlawful no-so- licitation rule. WE WIILL NOT in the same or any similar manner interfere with, restrain, or coerce em- ployees in the exercise of rights guaranteed them under Section 7 of the Act. 805 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE. wll. offer Lydia Nelson immediate and full reinstatement to her former job of hema- tology section supervisor and reimburse her for the pay she lost as a result of our discrimi- natory action, with interest. Our employees are free to become or remain members of National Union of Hospital & Health Care Employees, 1199 W. V. A., a/w Retail, Wholesale and Department Store Union. THE BOARD OF TRUSTEES OF CITY HOSPITAL, INC. DECISION STATEMENT OF THE CASE JOHN M. DYER, Administrative Law Judge: On May 22, 1979,' the National Union of Hospital & Health Care Employees, 1199 W. V. A, a/w Retail, Wholesale and Department Store Union, herein called the Union or Charging Party, filed a charge against the Board of Trustees of City Hospital, Inc., herein called City Hospi- tal or Respondent, and amended that charge on June 25, alleging that Respondent had violated Section 8(a)(1) and (3) of the Act by terminating Lydia Nelson on May 9. Violet Brannon filed the charge against Respondent in the second case on June 18 and amended it on July 16, alleging that Respondent violated Section 8(a)(l) and (3) of the Act by causing her termination. The Regional Director issued a complaint in the first case on July 13, alleging that Respondent had violated Section 8(a)(l) of the Act by maintaining an invalid no- solicitation rule and had violated Section 8(a)(3) and (1) of the Act by its termination of Lydia Nelson. On August 15, the Regional Director issued a com- plaint in the second case, alleging that Respondent had violated Section 8(a)(l) of the Act through the conduct of its supervisor, Gary Ballard, in threatening discharge of employees for engaging in union activities and by in- terrogating employees concerning union activities. An order consolidating cases and an amended order consoli- dating cases were issued by the Regional Director in August. Respondent's timely answer admitted the service and commerce allegations and the supervisory status of Ad- ministrator Gordon Taylor and Assistant Manager Gary Ballard, but denied that it had violated the Act in any manner. Essentially, the cases revolve around Lydia Nelson, who started the union movement around October 1978 and was terminated by Respondent some 8 months later. The main question is whether Lydia Nelson was a super- visor or whether Respondent attempted to portray her as such in order to stop her union participation as a super- visor and give itself insulation if it decided to terminate her and possibly to taint any union organization because of her relationship with it. The answer to this question is based principally on credibility findings. I have found i Unless specifically stated otherwise, the events herein took place during the latter part of 1978 and the first half of 1979. that Respondent did violate the Act as alleged, since I credit the testimony which shows that Respondent em- barked on a campaign to neutralize the Union and rid itself of Lydia Nelson who was the main union activist at Respondent. Administrator Taylor's testimony was con- tradicted both by written evidence and by a number of other witnesses, including both the General Counsel and Respondent witnesses, and I do not find him or Dr. Ji- menez to be credible witnesses. They were both evasive and tended to talk around and not answer questions asked, particularly on cross-examination, but testified in broad, general terms and contradicted themselves as well. On occasion, they were also led extensively in im- portant areas, and some Respondent records produced contradicted them as well. Some of the General Coun- sel's witnesses were still employed by Respondent and some were not. On the whole, their testimony was more credible and, where there are contradictions between them and Dr. Jimenez or Administrator Taylor, they are credited. Since I have found that Respondent embarked on a scheme to enable it to rid itself of Lydia Nelson and taint any union organization, there is reason not to credit some of Respondent's other witnesses who were assisting in the plan or pay attention to some of Respondent's physical evidence which was prepared in furtherance of the scheme. The parties were afforded full opportunity to appear, to examine and cross-examine witnesses, and to argue orally at the hearing held in this matter on February 7 and 8 and March 12 and 13, 1980, in Martinsburg, West Virginia. General Counsel and Respondent have filed briefs which have been carefully considered. On the entire record in this case, including the exhibits and testi- mony, and on my evaluation of the reliability of wit- nesses based on the evidence and their demeanor, I make the following: FINDINGS OF FACT I. COMMERCE FINDINGS AND UNION STATUS Respondent is a West Virginia corporation engaged in the operation of a nonprofit community hospital in Mar- tinsburg, West Virginia. During the preceding year Re- spondent's gross revenue exceeded $250,000, and during that period it purchased and received materials and sup- plies directly from outside the State which were valued in excess of $50,000. Respondent admits, and I find, that it is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Respondent admits, and I find, that National Union of Hospital & Health Care Employees, 1199 W. V. A., a/w Retail, Wholesale and Department Store Union, is a labor organization within the meaning of Section 2(5) of the Act. II. THE UNFAIR LABOR PRACTICES A. Background and Facts Respondent began as two separate hospitals, City Hos- pital, herein called City, and Kings Daughters Hospital, 806 BOARD OF TRUSTEES OF CITY HOSPITAL herein called KD, which were a couple of miles apart in Martinsburg. Sometime around 1976, the boards of the two hospitals decided to merge the two institutions and combine them ultimately in one new larger building to be known as City Hospital. The merger began with inte- grations of facilities such as the laboratories, which in 1977 were merged with Marvin Grubbe, the chief techni- cian at KD, becoming the chief technician over both units with his office at City. Most of Grubbe's time was spent at City and he had an assistant at KD. At the beginning of 1977, when the merger was being effected, Respondent hired a management corporation, Hospital Corporation of America, herein called HCA, to manage the combined operations, and HCA began man- aging Respondent on February 1, 1977. The present administrator, HCA employee Gordon Taylor, was in charge of Respondent's fiscal operations until he became the administrator in July 1977. The com- bined operations of the two hospitals employed over 600 people. The main part of this inquiry deals with the laborato- ries. At the time of the merger, there were approximate- ly 40 lab employees which decreased to about 32 to 33 employees during the relevant period. At City there were four lab sections consisting of histology, blood bank, hematology, and chemistry and microbiology, each of which had a section head. Lydia Nelson was the sec- tion head of the hematology section. At City there were approximately 8 to 10 people in the lab covering those sections during the day shift, with a total of some 18 technicians for the three shifts. The balance of the em- ployees worked at KD. According to the uncontradicted testimony, when KD had been a separate hospital, it had set up a large number of job descriptions covering a chief technician, assistant chief technician, section supervisors, etc., for a large number of positions but these job descriptions had not been used, nor were there people filling all those various jobs. Those descriptions were brought to City but never issued to the employees. B. The No-Solicitation Rules Prior to the merger, City prepared and distributed to its employees a personnel policy handbook. The exhibit shows that it was copyrighted in 1973 by Hospital Publi- cations, Inc., and it has a cover stating that it is the per- sonnel policy handbook of City Hospital, Inc., of Mar- tinsburg, West Virginia. This policy handbook was made available and given to employees, according to the testi- mony, up through 1977. It covers all the topics of em- ployment, including benefits, insurance, rules regarding absence, leave, smoking, etc., and has a rule which pro- hibits any solicitation in the building with the exception of the hospital building fund and sales by the hospital auxiliary aides. On its face, this rule under Board law is improper. The parties stipulated that there was a plaque on a wall near the reception area and telephone switchboard at City which stated: "Solicitation is prohibited on hospi- tal premises." Clearly this rule violates Board law re- garding solicitation. It was stipulated that during the hearing in this case the plaque was removed from the wall. Administrator Taylor testified that in April 1977 his predecessor issued a document to both divisions of Re- spondent which was entitled "Employee Fringe Bene- fits." According to Taylor, the booklets which had been in effect prior to that time at KD and City would have been in conflict regarding a number of items and the document entitled "Employee Fringe Benefits," which is approximately six pages long, replaced the other two booklets. The covering letter, dated April 14, 1977, states only that the attached policy of consolidated fringe benefits was to become effective May 1, 1977, and that efforts were continuing to equate other benefits and that em- ployees would be kept informed by letters on publica- tions. There is nothing in this letter which states that any rules in the previous booklets or any directions therein were abolished with the publication of this fringe docu- ment policy. There is no testimony that prior to the pub- lication of this April 14, 1977, employee fringe benefits policy there was any revocation of the rules for either division. Respondent points to nothing other than this one document as being a revocation of all other rules. Taylor also said that in July or August 1977 he told the heads of the various departments that new hand- books would be prepared and that all would get policy letters which would be put out in the interim. According to Taylor, there was no "no-solicitation" rule in effect during that period. However, there is nothing which es- tablishes that the no-solicitation rule was revoked since it was included in the handbooks and obviously this policy on employee fringe benefits was not meant as a complete replacement for everything that was contained in the em- ployee's handbooks. Indeed the plaque remained on view to all at City until it was taken down during this pro- ceeding. Without a specific revocation of the no-solicitation rule, the employees could not know that there was any so-called revocation. Insofar as employees were aware, the no-solicitation rule was still in effect since it had not been specifically revoked, and the plaque was still on view at City. Employee fringe benefits are not the same as policy and rules established by Respondent and the issuance here of a fringe policy benefits statement cannot be held to be an abrogation of all prior policies or rules. I therefore conclude and find that during the material time when union activities were taking place up until the dates of the hearing in this matter Respondent had in effect an illegal no-solicitation rule. That rule has since been replaced by another rule which is not under attack by the General Counsel. There is no evidence in this proceeding that any employees re- ceived any discipline or reprimands as a result of the il- legal no-solicitation rule. At this point it is not known what, if any, problems were caused to employees during the period of union activity by the no-solicitation rule. Since the unlawful rules have been rescinded or re- moved, I will not enter an order that Respondent rescind them but merely provide a prohibitive order. 807 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. Events Between October 1978 and January 1979 Lydia Nelson began working for Respondent in April 1976 in the hematology lab and by the end of 1977 had become the section head. She worked with two other lab technicians on the day shift and they would arrive early and start working on the various samples to be checked. When Nelson arrived around 9 a.m., she would check with them to see what had been started and what was done, to see what she should pick up on. She testified, and others corroborated, that the only additional respon- sibilities the section head had was for the quality of the work done in the section and to check whether the in- struments were working properly. She would also estab- lish new tests if they were needed, usually in consulta- tion with the pathologist and, if she ran into any difficul- ty, would check with the pathologist. In 1977, the chief pathologist was Dr. Jimenez who had Dr. Tamara as his assistant chief pathologist. Ji- menez had replaced another pathologist and was on a contract basis with City. He had previous employment as the director of the KD lab prior to the merger. Nelson and all others in the lab, with the exception of Marvin Grubbe, were paid on an hourly basis, punched a timeclock, and received overtime pay rates for any work beyond their normal schedules. Nelson testified and was corroborated by others that they had not seen any written descriptions of their jobs prior to her termination and she testified she had not seen written descriptions of either the assistant chief technologist or chief technologist's jobs. Respondent had established a system of pay scales with various grades set for various classifications. In the laboratory there was a wage scale of grade 9 for a medi- cal lab technician who was unregistered and the rates within that scale were from $4.11 to $5.42 per hour. A registered medical laboratory technician had a grade II scale with rates that ranged between $4.45 and $5.87 per hour. An unregistered medical technologist was in pay grade 13 with rates from $4.81 to $6.34 per hour. Regis- tered medical technologists were in grade 15 with pay rates which ranged from $5.21 to $6.87 per hour. There is no question but that all of these jobs are nonsupervi- sory. According to Respondent's pay chart, the next step or grade is grade 16 which it titles "section supervisor of the laboratory." That grade has pay scales from $5.42 an hour to $7.15 per hour. This pay scale was not in use prior to early 1979. The grade 17 pay scale is the grade for an assistant chief technologist and the pay ranges from $5.64 to $7.44 per hour. From this review of pay grades, it would appear that there was no separate pay grade for a section head, as employees such as Lydia Nelson were designated at the beginning of 1979. After complaints about the pay and that technologists were bumping the pay ceiling, Respon- dent changed the title of section heads to section super- visors and put them in the new grade so that their pay ceilings were raised and they could earn more money. All of the testimony was to the effect that there was no change whatever in job duties, responsibilities, or skills between the job of a section head and a section supervi- sor. The job content remained the same although the title included the word supervisor. Testimony did not es- tablish that any supervisory responsibilities or authority were granted to this group of employees. In September or October 1978, Respondent cut out call-in pay for lab employees. Call-in pay was paid to employees who were called back to work after their shift when an emergency situation arose. The employees became upset since it represented a decrease in pay. The lab employees complained to Chief Technologist Grubbe and to Dr. Jimenez, asking to have the call-in pay re- stored. Respondent refused to do so. Employees were also complaining because their anniversary evaluations, which were evaluations made of their skills, etc., on the anniversary date of their starting employment with Re- spondent, were not being made timely. When the evalua- tions were made, the employees were graded and were given merit increases, depending on their evaluations, with the top merit increase being usually an 8-percent raise. When the evaluations were not done timely, the people were not getting their raises timely which led to their complaints. According to Lydia Nelson, the employees were also complaining about supervisors reprimanding them and their being no way to protest the reprimands. She decid- ed to call a hospital in Fairmont, West Virginia, and there spoke to a nurse and asked her for information so they could organize a union at Respondent. Although she was told a return call would be made, none was. Later Nelson called a Chambersburg, Pennsylvania, hos- pital and got the name of the Union. She called the Charging Party, spoke to an organizer concerning orga- nizing the employees at Respondent, and was told they wanted to get an idea on the amount of interest the em- ployees had in organizing and asked her to get up and circulate a petition for the Union. Nelson prepared a pe- tition which stated, "We, the people of City Hospital, Inc., wish to meet with a representative from the Nation- al Union of Hospital & Health Care Workers" and signed her name and department and left space for other signatures. She made 12 copies of this petition and dis- tributed them throughout the hospital. She got 10 copies back showing some employee interest and forwarded them to the Union around the end of October. There- after, some union meetings were held and leaflets were distributed at Respondent, and Nelson assisted in the dis- tribution of leaflets and attended union meetings. Marvin Grubbe, who was the chief technologist at Re- spondent until January 29, 1979, when he resigned at the request of Administrator Taylor, testified that he became aware of the union campaign when he was shown a copy of Nelson's petition by the chief of maintenance at Respondent. He saw a copy or the same copy in Admin- istrator Taylor's office that same day when Taylor called him in for a conference. According to Grubbe, Taylor said that he was very upset by it and felt that Lydia Nelson was a troublemaker and that they should do ev- erything they could to get her out of the hospital. Taylor told Grubbe that Nelson was the initial contact with the Union and that Grubbe was to watch out for her passing out union material or signature cards. Grubbe told Taylor that the employees were upset over the cut in call-in pay but that he would do the best he could to ob- 808 BOARD OF TRUSTEES OF CITY HOSPITAL serve what she did. He was to watch for any mistakes she made in her work, also what her attitude was to- wards Dr. Jimenez and himself, to check on her conver- sations with other employees in the hall or in the lab, and to watch out for petitions and signature cards. Taylor told Grubbe that Lydia Nelson had contacted someone there about organizing a union. After the original discussion with Taylor, Grubbe dis- cussed the organizational campaign with Dr. Jimenez and Dr. Tamara, the two pathologists, and with an attor- ney from the Hospital Corporation of America. In another meeting Taylor told Grubbe that John Roush, Donna O'Rourke, Don Foster, Earl Lanham, and Loretta Rose, who were all lab employees, were in- volved in the union movement. Grubbe was told by Taylor to watch out for the activities of all these em- ployees and to try to involve Lydia Nelson as much as possible in actions of a supervisory nature so that Re- spondent could prove that she was a supervisor which would remove her from union activity. Taylor said that, if they could remove her from the union activities pic- ture, the union movement might die out. Grubbe testified that meetings with Taylor concerning Lydia Nelson and the Union and trying to establish her as a supervisor and trying to undermine the union activi- ties took place during October, November, and Decem- ber, 1978 and January 1979. During the meetings throughout this period Grubbe reported to Taylor anything he considered to be of a sus- picious nature, such as Nelson or any of the other five being involved in conversations with other employees. Grubbe said he assumed such conversations were about the Union and would report the names of those in the conversations to Taylor since Taylor had told him to keep an eye on these individuals and watch for that sort of thing. Taylor also told Grubbe that these people could not conduct union activities on company time. In a number of these conversations with Taylor, Dr. Jimenez was present. In one which Grubbe remembered in particular, Taylor told him, with Jimenez present, to concentrate on showing Nelson to be a supervisor and make her use supervisory authority so that they could prove she was a supervisor and thus remove her from the lab. Grubbe testified that he was told what items of supervisory authority to look for and to give her. Taylor's testimony was somewhat contrary to that of Grubbe. Taylor admitted he had received a copy of the petition with Nelson's name on it and said that he had asked Grubbe if Nelson was not a supervisor saying he remembered that her job description would indicate that she was a supervisor. Presumably, Taylor was talking about a job descrip- tion for an assistant chief technologist but there was no job description ever prepared by City for such a job. Lydia Nelson testified that she was never given such a job description and Grubbe confirmed that he did not recall ever showing any of the lab personnel a job de- scription. Grubbe recalled that some job descriptions were prepared at KD some years prior, and it is these job descriptions that Respondent seems to say were the job descriptions. There is nothing to indicate that such descriptions were ever made available to any of the in- cumbents at City nor that they were told of their exis- tence. Taylor stated he told Grubbe to inform Nelson that she was a supervisor and was expected to perform a su- pervisory role. According to Taylor, Grubbe mentioned that on one occasion Nelson had refused to work on a particular shift and Grubbe was concerned because they were short of staff. Taylor said he told Grubbe that she should do it because it was her job to do so and that, if she refused to, it was grounds for dismissal. Grubbe denied making such a statement to Taylor. Taylor also stated that it was Grubbe who told him the names of some of the people he thought were interested in the Union and denied asking Grubbe for such information. This testimony by Taylor is not a denial of all the spe- cific statements Grubbe attributed to Taylor, but it ap- pears to be an attempt to dance around them. Grubbe's testimony was specific and direct on a number of points, and I credit his testimony and discredit the quasi and seemingly implicit denials in Taylor's testimony. Lydia Nelson testified that she discussed her union ac- tivities with Marvin Grubbe and with others in the labo- ratory. Around the beginning of November, she told Grubbe she was going to attend a union meeting and Grubbe said that, if he were not a supervisor, he would go too. Thereafter, she prepared a list of prounion people and sent it to the Union. With the background of Respondent's attempting to establish a supervisory status for Lydia Nelson to cut her away from union activities and either get rid of her or establish her as a supervisor and with the further implicit possibility of attempting to taint any union activities of Respondent's employees by having a "supervisor" in- volved in the initiation of the union campaign, Respon- dent's attempts thereafter to establish her as a supervisor through the use of such things as charts, directives, etc., is itself tainted and not reliable evidence. The union campaign appeared to bog down after the winter and, in effect, seemed to die out about the time that Nelson was terminated. The lack of interest in the union campaign was attributed by some employees to a "sellout" by some lab employees. This suspicion may have its genesis in the promotion of Roush, who had been at KD and was an unaccredited technician with ap- parently some limited experience and apparently no man- agement training to Marvin Grubbe's position but retitled as lab manager around May 2, 1979. Somewhat confirming suspicions of Respondent's plans is the undenied testimony of Suellyn Carroll, who worked with Nelson as a hematology technician. She tes- tified that, in November or December 1978, Dr. Jimenez offered her the job as section head of hematology, the job then held by Nelson in addition to her assistant chief technologist's title. Jimenez told Carroll that Lydia might step down from her job, Carroll told Jimenez she did not want the job, and the matter was dropped. Violet Brannon, a dietician's assistant working in the kitchen area, first learned of the union activity when Ad- ministrator Taylor, accompanied by Assistant Adminis- trator Hyde, talked to some of the employees in the kitchen about 7 a.m. in mid-January 1979. She testified 809 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that Taylor read from a prepared statement why the hos- pital did not feel the employees needed a union. Follow- ing the speech the employees talked about it among themselves. According to Brannon dieticians Sherry Rosenberg and Laurie Watson, Assistant Manager Bal- lard, and she were talking about the Union. Brannon told Ballard she felt they needed a union and that she would do what she could to bring it in. Ballard said if she had anything to do with the Union, he would fire her. She said he could not do that, that she knew her rights and if he did fire her, she would take him to the Labor Board. He told her not to get upset, that he was kidding. Short- ly after that, Ballard, saying that if the union representa- tives came into the department, illustrated what he would do and kicked the door to show how he would throw them out. Several days later while in the cafeteria, someone from the lab asked Brannon and some others if they were in- terested in the Union and, when they replied they were, gave them a map and directions to a union meeting. Brannon brought the maps back to the kitchen and Bal- lard asked where she got them, saying if they went to the union meeting they would be fired. He then told them not to discuss it and to put the maps away. Shortly thereafter, Ballard told Brannon that he was a supervisor and part of management and could not be a part of the Union but wanted to know what went on and that Brannon and others in the department could trust him. Brannon went to the mid-January meeting and, on the following day, Ballard asked who was at the meeting and what was said. She told him she could not give him the information, that it was confidential. She said that he kept pestering her about it, stating that she did not trust him. Beverly Gonzales, a secretary who also worked in the kitchen area, testified that Ballard tried to get some in- formation from her as to who was at the union meeting and what went on and she refused to give it to him, saying that the information was confidential. Brannon's testimony was basically corroborated by Gonzales. Ballard testified that in the last part of 1978 he found out about the union drive and went to Assistant Admin- istrator Eckert and asked him about the Union and was told by Eckert not to tell anyone that they would be fired for participating in union activities. He said he vis- ited Eckert on more than one occasion averaging about once a week to talk about the Union and that Eckert told him a number of things he could do and what he could not do and that he should not question people about the Union and could not search out things that were going on in the Union. Ballard placed Administrator Taylor's speech in De- cember 1978 whereas all the others placed it in January 1979. In regard to the conversation after Taylor's speech, Ballard said that Brannon and one other employee were in the office talking and he told them not to talk about the Union during worktime but on their own time. He stated that several people asked him what to do about the Union and he told them to do what they wanted and that they could not be fired for joining the Union. He denied telling Brannon that she could be fired for read- ing union literature and further denied kicking the door or making any statement about keeping the Union out. In regard to the maps, he said he told Brannon not to read union material on company time. He did admit saying that he asked where the union meeting was going to be and was thinking of joining the Union at one time and later was told he could not be a member. Ballard's admission about asking where the union meeting was going to be contradicts what he said were his instructions from Eckert. Counsel for Respondent urged crediting Ballard on the basis that Eckert admonished Ballard as to what he could and could not do and that he would not have been in the dark as to his supervisory rights and responsibil- ities. Respondent did not produce Eckert to testify and gave no explanation as to why it did not do so. The only evi- dence we have as to Eckert's tenure at Respondent is testimony that Eckert did not start working at Respon- dent until February 1979. Respondent did not contradict that testimony in any way. Therefore, Ballard's testimo- ny that he was consulting with Eckert in 1978 concern- ing the Union would have been a physical impossibility. I do not credit Ballard, and the defense that Ballard would not have made these statements because of Eck- ert's admonishments fails. The other witnesses produced by Respondent in an at- tempt to substantiate Ballard did not do so. They did not remember statements but did not specifically deny that they occurred. It would appear that if Ballard did talk to Eckert it would have been after Eckert came to the hos- pital in February as to what Ballard had done. On the basis of the credible testimony and evidence here, I conclude and find that Respondent, through Bal- lard, violated Section 8(a)(1) of the Act by threatening to discharge employees for engaging in union activities and that he interrogated employees about their union activi- ties and the union activities of others. Administrator Taylor initiated a survey of supervisors in the latter part of 1978. This was a written survey and promised anonymity to all who participated in it. Lydia Nelson participated in it and in regard to her supervisor, Grubbe, downgraded him because she felt he had not fought the cut in call-in pay and that he was lax in not timely performing the employee anniversary appraisals, with the result that the employees were not getting their increases on time. Apparently a number of the other lab employees responded to the survey in a similar manner. Around mid-January 1979, Taylor showed Lydia Nelson a list of recommended raises and asked if she had participated in preparing it. She replied that she had not, that she had seen it for about 5 minutes before Grubbe took it to a meeting. Taylor asked again whether she was saying that she had had nothii.g to do with making those recommendations. She replied that she did not, that Grubbe handled personnel matters and such things while she handled the technical matters in the lab. She testified that Taylor became angry and said he thought he knew what he could do about it and left. In view of Taylor's instructions to Grubbe to enmesh Nelson in supervisory matters, this event seems significant especially in view of Grubbe's abrupt resignation at Taylor's request. 810 BOARD OF TRUSTEES OF CITY HOSPITAL On January 29, Grubbe was asked to resign his posi- tion and did so. Taylor held a meeting with the laborato- ry employees and announced that Grubbe had resigned. Taylor said he told the employees that Lydia Nelson would replace Grubbe as the acting chief of the depart- ment. Taylor also testified that Nelson remained the acting chief of the department until Roush was appointed as the laboratory manager on May 2, 1979. Pat Breen testified that Lydia Nelson was not at the meeting and that Taylor said nothing about Nelson being acting chief and did not mention her name, but to the contrary Taylor said they were bringing in someone to run the lab. Donna O'Rourke testified that, on the day Grubbe re- signed, Administrator Taylor and Assistant Administra- tor Hyde had a meeting with the lab employees. Taylor said that they had asked for Grubbe's resignation because Grubbe had not gotten the anniversary evaluations made on time and had not done some things that he should have in his job. She testified that there was a good bit of disagreement from the lab employees who said that Dr. Jimenez should take a good share of the blame, that Re- spondent was being too severe on Grubbe. She corrobo- rated Breen that Taylor said Respondent had somebody coming in from another HCA hospital that afternoon on loan and that person would take over Grubbe's job to make the transition smoother until they could get some- one to fill Grubbe's position. She stated that Lydia Nel- son's name was not mentioned and that Nelson was not there that day. I do not credit the testimony of Taylor and credit the testimony of Breen and O'Rourke. Taylor called Lydia Nelson to his office the following day and asked her to take over Grubbe's duties until they found a replacement. A short time later, Ray Vin- cent from HCA was brought in for 2 weeks to help or- ganize the lab and he taught her how to order supplies. He took care of those duties for a couple of weeks while teaching them to her. Shortly after she took over Grubbe's duties, Taylor called her in and gave her a list of things he wanted her to do. One item was to make up an organizational chart of the lab. She drew up an organizational chart showing the various positions, listing an assistant chiefs job and a chiefs job for the lab, showing responsibilities going from them through the pathologists and then to adminis- tration. Taylor changed the organizational chart, telling her the lines of authority went direct to administration, that the pathologists were merely there to assist them and give advice and were not in the direct flow to ad- ministration from the lab. Despite Taylor's statement and his correction of the laboratory organizational chart, the pathologists, Dr. Ji- menez and Dr. Tamara, continued to exercise control over lab policies, including employment policies, hiring, firing, wage increases, etc., throughout Nelson's employ- ment and the lab employees reported to the pathologists and not directly to the hospital administration. As part of her new duties, Nelson signed timecards and prepared evaluations of employees. Shortly after moving into this position, she talked to Dr. Jimenez and got his agreement to go to a peer evaluation system. Under this plan, when the evaluation sheets concerning an individual were received in the lab sometime prior to the individual's employment anniversary date, Nelson would make xerox copies of the sheets and pass out a copy to a person who worked directly with the individ- ual to be evaluated, give a second copy to another lab employee, and the third copy was given to the individ- ual. When those copies were completed, Nelson would summarize them on one form and give that, together with the other analyses, to Dr. Jimenez for his approval or disapproval of the evaluation, and the evaluation changed or unchanged by Dr. Jimenez was sent to the personnel department and administration for their ap- proval. The evaluations were timely made during the period that Nelson pursued these policies. According to Nelson, she made the summaries during the interim until Jeff Wagner was brought in from HCA in March and took over the direction of the laboratory and responsibility for all personnel matters and the evalu- ations of employees. Respondent's exhibits refer to Jeff Wagner as the chief technologist, contrary to Taylor's testimony that Nelson was the acting chief until Roush was appointed. During February, Assistant Adminstrator Eckert and Nelson had a discussion concerning the chiefs job, and he asked if she were interested in it. She told him she was not interested in it, that she supported the Union and felt the employees needed one and felt that the people at KD would resent her because they felt Grubbe's termi- nation was unfair. During the 2-week period that Vincent was there, he asked if she were interested in the job of chief technolo- gist and she told him that she was not because she was too close to the employees. Sometime around mid-April, she and Wagner had a discussion concerning benefits. He told her that Respon- dent realized they would have to start giving more bene- fits and would probably go to paid retirements and might pay for 2 hours guarantee on a call-in. She told him that the employees felt that these were temporary measures and did not completely trust the administration and, if any more benefits were taken away, they could expect a union drive to recommence. In his testimony, Wagner attempted to portray Nelson as being in complete charge of the laboratory but later said she was his assistant. She testified that things under Wagner were about the same as they had been under Grubbe, that is that she spent 90 to 95 percent of her time doing tech bench work, and the other part of her duties were in getting the schedules filled out and per- forming some interviews. In regard to the interviews, the credible testimony was that Dr. Jimenez would decide which of the lab employ- ees would interview the applicant besides himself. Dr. Ji- menez would interview the person and then have desig- nated employees in the lab section where they had an opening interview the applicant about school, back- ground, and experience and give their impressions to him. Dr. Jimenez would make the final decision on whether to hire the person and at what pay rate, and the recommendation would be made to the personnel depart- 8 1 1 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ment. Interviewing of prospective employees thus was not a supervisory work task but was a peer evaluation of the possibilities of an applicant by fellow employees with recommendations based on professional competence, re- serving the decision to Dr. Jimenez. In regard to the scheduling, originally Dr. Jimenez de- termined the schedule for all employees. Then Nelson was told to make up the lab schedule, presumably to demonstrate her "supervisory" duties. With Dr. Jimenez' permission, she had the employees fill out the work schedule for the succeeding month on their preferences, with the employees knowing that the lab had to be cov- ered. She would check to be sure that all of the work periods were covered and would usually cover the he- matology section by taking the spaces left by the other two "techs." At the time Lydia Nelson was made the assistant chief tech, she received no wage increase. Taylor said that she got a partial increase when Respondent planned to pro- mote her and got another part of the increase some 90 days after she had been in "sort" of a probationary period. However, there is no testimony other than this particular item relating to pay that Lydia Nelson was ever told of a probationary basis for the assistant chief tech job. The wage increase she got around the time she started the job was a percentage increase that all em- ployees got at the same time. The wage raise she re- ceived in April, which was around 90 days after she started the job, was her anniversary evaluation increase and not an increase for the promotion. At the time of Lydia Nelson's termination, she was making $6.47 per hour while the wage scale of an ordinary technologist went as high as $6.87 an hour. Thus Taylor's statements were proven false by Respondent's records. Both Administrator Taylor and Dr. Jimenez gave sweeping descriptions of the supervisory authority they said was conferred on Lydia Nelson. They said she could hire or fire, recommended raises, and interview ap- plicants for employment, and that her recommendations were accepted. Taylor stated that she conducted all the interviews for all lab employee applicants, which amounted to around 20. The facts, however, are that she, with others, interviewed about 5 of the 20 people that were hired during that time, that she never hired, fired, or made effective recommendations in those regards. The recommendations that she made in regard to raises were always independently reviewed by higher authority, starting with Wagner and Jimenez. The recommenda- tions on wage raises that she made shortly after Grubbe resigned were recommendations that had been made by Grubbe but not completed and she merely followed through by signing the forms. Respondent tried to portray Nelson as having full au- thority when Grubbe was either on leave or merely 2 miles away at the KD division. However, since tele- phones were available, nothing of any major import ever happened without Grubbe being advised. When he was on vacation, Grubbe left a telephone number where he could be reached at all times if an emergency arose. In any event, Dr. Jimenez exercised complete author- ity over the lab before decisions concerning lab policy or personnel were sent to the administrators. As Marvin Grubbe testified, Dr. Jimenez' approval was necessary for any raise and any decision of any import was made by him. Decisions on procedures, tests, salaries, down to the vacation schedule, all had Dr. Jimenez' approval. Grubbe testified that Dr. Jimenez decided what salary to start new employees and decided who was or who was not hired despite any recommendations made by either Grubbe or others below him. In essence, Lydia Nelson was an experienced profes- sional employee who acted similarly to a leadman in that she had the ability and experience to help other profes- sionals in their jobs. She worked within the area of her professional knowledge in seeing that the laboratory ma- chines operated properly and, if not, were repaired, and setting up tests when necessary as laboratory technical problems called for them. This would be done under the supervision of Drs. Jimenez or Tamara. Nelson did not want and did not exercise full supervi- sory authority. She made some recommendations and performed some ministerial functions, but what she did was subject to independent review by supervisors who were readily available. She was not the head of a large department but only assisted in the technical matters in running the department with a group of eight or nine other professional technicians. The various indicia Respondent points to as indicative of her "supervisory" authority were not necessarily known to her. Respondent never gave Nelson a job de- scription for any position she occupied and, as her testi- mony established, never told her she had these various types of authority. It must be remembered that all Re- spondent claims start from the premise that Respondent was attempting to portray her as a supervisor for an un- lawful purpose, in that Respondent wanted to remove her from her position with the Union and taint any union activity they started with her. It is clear from an evaluation of the testimony of Dr. Jimenez and Administrator Taylor, as contrasted with that of the other witnesses presented by the General Counsel, that Jiminez' and Taylor's testimony was stretched and strained out of shape from the actual facts. Basically I conclude and find that Lydia Nelson was a professional employee who acted as a leadman in helping get things done in the lab, without any true supervisory status. It may be arguable that for a short period in February, after Vincent left and prior to Wagner's arrival, that she may have been in the position of being the only person with any authority in the lab, but, as Grubbe testified, he never felt he was a true supervisor since Dr. Jimenez ex- ercised authority over every aspect of the lab, and Lydia Nelson felt the same. After Wagner came, he took over the personnel supervisory matters and Nelson stayed with the technical lab matters. On May 2, 1979, the lab employees were informed that John Roush, who was the assistant head of the KD lab, was being made the overall lab manager and taking Grubbe's former job. Between then and May 5, Nelson told Roush she no longer wanted to be the assistant chief technologist and would resign from that post because she wanted to have more time to work on her masters 812 BOARD OF TRUSTEES OF CITY HOSPITAL degree and wished to revert to being the section head of hematology. On May 8, she wrote her resignation from the assistant chief tech's job and gave copies of it to Dr. Jimenez, Wagner, Roush, and Taylor. On May 9, Roush and Wagner told Nelson her pay would be cut from the $6.47 per hour she was receiving to $6.25 since she did not have as many responsibilities. She protested a cut as unfair, saying she had not received a pay raise for being an assistant chief tech or a section head and should not have anything taken away from her. Wagner and Roush insisted that she had received a promotion raise and she asked them to prove it. Shortly thereafter with Shirley Eckles, Nelson went to the personnel office where Wagner was looking at her file. After he finished, she began reading through it and was unable to find some of her evaluations and asked Jeanette Stultz where they were, saying she did not see them in the folder. Stultz showed her they were stapled together, and Nelson found them. Lab Technologist Shirley Eckles testified that, after the Roush promotion, there were conversations concern- ing Roush throughout the lab. Jeff Wagner asked her to come into his office and talk about it. He asked what she thought of the promotion, and she said she did not think Roush was capable of handling the people or the job, etc. On May 9, Eckles was working on "stat" work and Nelson came over to help her. Wagner was present and asked Nelson to go to his office and discuss the promo- tion with him. She told Wagner it would be a waste of time, she felt Roush was not competent for the job, she had worked with Roush, and his school had not even given him a recommendation for a job. Nelson testified that she felt Roush was incompetent because he had not had any management training and she had worked with him for over a year and saw him make careless laboratory decisions which affected peo- ple's lives and that he used poor techniques and caused problems that other technicians would be written up for, but they were swept under the rug because of his posi- tion. She did not know of anyone who did not think or say that Roush was incompetent. Wagner testified that on May 9 he wrote a letter to Taylor stating that Nelson had said in his presence that she felt Roush was incompetent and could not handle the job of laboratory manager. He concluded, "I consider this to be gross insubordination and would recommend immediate disciplinary action." Jeanette Stultz identified a May 10 letter she wrote to Taylor wherein she stated that Wagner had requested a personnel file on Lydia Nelson and that thereafter Nelson came in and discussed information in the file rela- tive to her pay rate. Nelson thereafter picked up the file and, according to the letter, became "rather loud and abusive" in regard to her evaluations. Stultz concluded her letter stating that she felt Nelson conducted herself in an unprofessional manner. Stultz testified that the letter was accurate. In her tes- timony, Stultz stated that Nelson was upset and flushed and that she got loud and angry and had been in the per- sonnel office prior to Wagner's arrival. Eckles corroborated Nelson that Nelson did not raise her voice, was not loud, angry, or abusive, and acted properly during the time they were in the personnel office. Nelson is a very mild-voiced person and, although it is possible that she became angry after being told that she had received raises that she did not receive and was unable to find the evaluations immediately in her file, it is clear that the terms used by Stultz are overblown. It is also clear from the file that the testimony that she had received raises because of her "promotion" are in error since the raise forms show that there was a general raise and a merit raise, and not a pay raise due to a promotion. Wagner's apparent horror at hearing Nelson state that Roush was incompetent is incredible testimony. Wagner heard such comments from quite a number of people in the lab. For instance, on the following day, Eckles over- heard a heated conversation between Lab Tech Breen and Wagner in which Breen said that Roush was incom- petent and that, if Wagner wanted to, he could fire her. Wagner thereafter asked Breen to step into the office. On May 10, Lydia Nelson was called to Taylor's office where Roush and Wagner were present. Taylor accused her of being loud and foul in the personnel office and she denied it, saying that she had not acted in any such manner. Taylor then said she had gone around the lab making derogatory remarks about Roush. She denied that and said she had only spoken in the presence of Wagner and Eckles when she said Roush was incom- petent. Taylor then said it appeared she had a history of not being able to get along with supervisory personnel, that in looking at her job application he saw that she did not get along with her acting supervisor at her previous job in Washington County. He also said she had prob- lems getting along with Marvin Grubbe and that they had talked about it. She said they had not talked about it, but had merely talked about employees not getting their raises. Taylor said, "Well, now you're having problems with Roush and I'm afraid we can't tolerate this type of behavior." He handed her check to her and asked how long it would take her to get out of there. She replied only a couple of minutes and left. Insofar as Nelson knew, she was the only person ever to be fired in the 3 years that she worked there and she had never been disciplined in any manner prior to that time. She had received her periodic evaluation about a month prior to her termination and Dr. Jimenez gave her a good evaluation and she got the highest merit pay in- crease of 8 percent that employees could receive. She re- ceived no written reason for her termination, and it was not until she attended an unemployment hearing that Re- spondent stated she had been fired for insubordination. Gordon Taylor testified that around May 2 he an- nounced that Roush was being made the lab manager to the lab employees. He testified that at the end of the meeting Roush told him that Nelson said she was going to quit. Taylor is the only source of such a statement since it is clear from all the other testimony that Roush was told by Lydia Nelson she was going to resign from the assistant chiefs job, but not quit the hospital. Taylor next testified that several days later Jeff Wagner gave him some minor complaints and among these was that Nelson had missed several days following the May 2 meeting. This statement was rebutted by the 813 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fact that Nelson had gone home sick and was out sick for 1 or 2 days. There is no issue about this, and it is an example of how Taylor was trying to dramatize his testi- mony and prejudice the case. Taylor also testified that Wagner told him Nelson had told a number of employ- ees in the hospital that Roush was incompetent. Wagner testified that while in the blood bank area he heard Lydia Nelson say she thought John Roush was incompe- tent and he wrote up a statement concerning it and sent it to Taylor. Thus Wagner's testimony flatly contradicts that of "Taylor." Wagner also neglected to add that he solicited the comment from Nelson regarding Roush's appointment. Both Wagner and Taylor stated that Lydia Nelson had refused to prepare a sample of a specimen to be sent to one of the reference labs. There is no testimo- ny concerning this as such, except that Wagner says Nelson told the person that she no longer had that job and was not responsible for it. Nelson denied that she ever refused to work on a specimen. In any event, it is clear that, refusal or not, it had nothing to do with Re- spondent's decision to discharge Nelson. Respondent takes the position that Nelson was fired because she was insubordinate in describing a supervisor as incompetent. Secondly, Respondent states that it could fire Nelson because she was a supervisor and that the union activities that Nelson engaged in had nothing to do with her discharge. Taylor also stated that he had not accepted her resignation from the acting chiefs job and that therefore she was still a supervisor at the time of her termination. Respondent adds that Nelson was un- happy because she did not get the job, but this is a fig- ment of Respondent's imagination since we have unden- ied testimony that Nelson had told three separate Re- spondent officials she had no interest in the job when they approached her about it. The facts are that her resignation had been accepted by Roush and Wagner who, according to Taylor, had supervisory authority to do so. Nelson had already been told by them that she was going to receive a 22-cent wage decrease for resigning that position. Taylor stated that in this time of change it was necessary that Nelson give them some time to effect the changeover and there- fore he was not prepared to accept her resignation. The fact is that neither of the positions Nelson had as assistant chief tech nor hematology section supervisor was filled by Respondent through the conclusion of the hearing in this matter in March 1980. Respondent did not state that the hematology section nor the lab as a whole suffered without those positions being filled. Viewing the evidence as a whole, it is clear that Re- spondent was out to set Lydia Nelson up as a supervisor and thus remove her from any union activity. The union activity and her part in it was not a dead issue at the time of her termination. Nelson had spoken to Assistant Administrator Eckert a few weeks before her termination and he told her Respondent was going to have to liberal- ize its fringe benefits. She told him that curtailment or cancellation of any fringe benefits would be sure to bring the Union back. There is no question of Nelson's leading position in the Union and Respondent's knowledge of it, and it is also clear from the evidence as a whole that Lydia Nelson was not a supervisor. Respondent's at- tempts to make her a supervisor for this purpose did not do so. It is clear also that despite Taylor's and Jimenez' testimony Dr. Jimenez controlled the labs and their per- sonnel. As Marvin Grubbe said, although he was termed a supervisor, neither he nor Lydia Nelson ever felt they were since everything was subject to Dr. Jimenez' con- trol down to the scheduling of vacations. I conclude and find that Lydia Nelson was not a su- pervisor at the time of her discharge and that the posi- tions of hematology section supervisor and assistant chief tech as performed by her were not supervisory and that her job performance was in the nature of a professional employee acting as a lead person. I shall therefore order her reinstatement, without any loss of pay, and provide for the ordinary and full merit increases she would have received absent her unlawful and discriminatory termina- tion by Respondent. III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent, set forth in section II, above, and therein found to constitute unfair labor prac- tices in violation of Section 8(a)(1) and (3) of the Act, occurring in connection with Respondent's business op- erations as set forth in section I, above, have a close, inti- mate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. IV. THE REMEDY Having found that Respondent engaged in the unfair labor practices set forth above, I recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent discharged Lydia Nelson on May 10, 1979, and refused to rehire her, I rec- ommend that Respondent offer her immediate and full reinstatement to her former position as hematology sec- tion supervisor, without prejudice to her seniority or other rights and privileges, and that Respondent make her whole for any loss of pay she may have suffered by reason of Respondent's discriminatory actions by pay- ment to her of a sum equal to that which she would have normally received as wages from the date of her termination until Respondent offers her reinstatement, less any net earnings in the interim. Backpay is to be computed on a quarterly basis in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977).2 I fur- ther recommend that Respondent make available to the Board, upon request, payroll and other records in order to facilitate checking the amounts of backpay due and other rights she might be entitled to receive. Further, her gross backpay is to be based on the premise that she would have received the top percentage pay due on an- niversary evaluations, as well as any other interim raises. 2 See, generally, sis Plumbing & Heating Co., 138 NLRB 716 (1962) g14 BOARD OF TRUSTEES OF CITY HOSPITAL. CONCI.USIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent violated Section 8(a)(3) and (1) of the Act by its discriminatory termination of Lydia Nelson because she engaged in union and concerted activities with other employees for the purposes of mutual aid and protection. 3. Respondent additionally violated Section 8(a)(1) of the Act by: (a) unlawfully interrogating employees about their union activities and sentiments and the union activi- ties and sentiments of others; (b) threatening and coerc- ing employees by warning they would be discharged for engaging in union activities; and (c) maintaining an un- lawful no-solicitation rule. Upon the basis of the foregoing findings of fact and conclusions of law, and the entire record in this case considered as a whole, I hereby issue the following rec- ommended: ORDER The Respondent, The Board of Trustees of City Hos- pital, Inc., Martinsburg, West Virginia, its officers, agents, successors, and assigns, shall: i. Cease and desist from: (a) Discriminatorily terminating employees because they engaged in union and concerted activities with other employees for their mutual aid and protection. :' In the csent no cxceptions arc filed as provided h Sec 102 4 of he Rules and Regulations of the National l.abor Relationl HBoard, the find ings, conclusions, and recommended Order hereil shall as pros ided in Sec. 102.48 of the Rules ad Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections hereto shall he deemed waived fior all purposes (b) Unlawfully interrogating employees about their union sentiments and activities and the activities and sen- timents of other employees. (c) Threatening and coercing employees by warning they would be discharged for engaging in union activi- ties. (d) Maintaining an unlawful no-solicitation rule. (e) In the same or similar manner interfering with, re- straining, or coercing employees in the exercise of rights guaranteed under Section 7 of the Act. 2. Take the following affirmative action which is nec- essary to effectuate the policies of the Act: (a) Reinstate and make Lydia Nelson whole for the loss of pay she suffered by reason of Respondent's dis- crimination against her in accordance with the recom- mendations set forth in the section of this Decision enti- tled "The Remedy." (b) Post at its Martinsburg, West Virginia, location copies of the attached notice marked "Appendix. " 4 Copies of said notice, on forms provided by the Regional Director for Region 5, shall, after being duly signed by an authorized representative of Respondent, be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 5, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. In th s cunt his ()rder is enforced h a J d grmet f 1l tild Stals Court of Appeals, the words in the noltice rfeading "})o,led h ()rlder lof the National l.ahor Relations Board" shall read "Posted ursu llIt t a Judgmrnrt of the Untited States Court of Appeall, infltrcing an ()rder of Ihe National I .bhor Relations Board ' 815