St. Alphonsus Hospital

DECISIONS OF NATIONAL LABOR RELATIONS BOARD St. Alphonsus Hospital and Office and Professional Employees International Union, Local 196, AFL-CIO. Case 19-CA- 12843 April 30, 1982 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND ZIMMERMAN On November 30, 1981, Administrative Law Judge Jerrold H. Shapiro issued the attached Deci- sion in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief in support of the Ad- ministrative Law Judge's Decision and a response to 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 conclusions2 of the Administrative Law Judge and to adopt his recommended Order.3 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 and hereby orders that the Respondent, St. Alphonsus Hospital, Boise, Idaho, its officers, agents, succes- sors, and assigns, shall take the action set forth in the said recommended Order. I Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board'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 evidence con- vinces us that the resolutions are incorrect. Standard Dry Wall Products. Inc. 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. I In affirming the Administrative Law Judge's conclusion that Re- spondent violated Sec. 8(aXl) of the Act when Radiology Department Manager Deneen announced at a department meeting that Respondent in- tended to discharge coordinator Gurr because he had voted in the repre- sentation election, we rely not only on the Administrative Law Judge's conclusion that Supervisors Champion and Benoit, who attended the meeting, are not supervisors within the meaning of Sec. 2(11) of the Act, but we rely also on the Administrative Law Judge's conclusion that co- ordinator Code, who also attended the meeting in question, was not a su- pervisor within the meaning of the Act during the time material herein. I In accordance with his dissent in Olympic Medical Corporation, 250 NLRB 146 (1980), Member Jenkins would award interest on the backpay due based on the formula set forth therein. Inasmuch as the Administrative Law Judge found that Respondent's al- leged lawful reason for changing the working hours of Gurr was a fabri- cation, Member Jenkins considers the Administrative Law Judge's reli- ance on the principles of Wright Line. a Division of Wright Line, Inc., 251 NLRB 1083 (1980), to be unnecessary and misleading. 261 NLRB No. 91 DECISION STATEMENT OF THE CASE JERROLD H. SHAPIRO, Administrative Law Judge: The hearing in this case held on May 21 and 22, 1981, is based on an unfair labor practice charge filed by Office and Professional Employees International Union, Local 196, AFL-CIO, herein called the Union, on October 7, 1980, and a complaint issued on November 24, 1980, on behalf of the General Counsel of the National Labor Re- lations Board, herein called the Board, by the Regional Director for Region 19 of the Board, alleging that St. Alphonsus Hospital, herein called Respondent, has en- gaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the National Labor Relations Act, herein called the Act, by changing the work sched- ule of employee Michael Gurr in September 1980 and discharging him later that month because of his union ac- tivities, and by informing employees that it intended to terminate certain individuals because they had voted in a union representation election. Respondent filed an answer denying the commission of the alleged unfair labor practices. ' Upon the entire record, from my observation of the demeanor of the witnesses, and having considered the post-hearing briefs submitted by the General Counsel and Respondent, I make the following: FINDINGS OF FACT I. THE ALLEGED UNFAIR LABOR PRACTICES A. The Background and the Events Leading Up to and Surrounding the Change in Gurr's Work Schedule and His Discharge Respondent operates St. Alphonsus Hospital in Boise, Idaho, where it employs more than 1,000 persons. The hospital department involved in this case is the depart- ment of radiological services, herein referred to as the radiology department. During the time material herein Fred Deneen was the department manager. The assistant manager was Terry Krogstad. Deneen was subordinate to Assistant Administrator Chris Anton who reported to the Hospital's administrator, Sister Beverly Ann Nelson. The alleged discriminatee Michael Gurr was employed in the radiology department. At the time of Gurr's discharge in September 1980, he was classified as a coordinator. He worked the weekend shift, Friday through Sunday: 8 hours Friday; 16 hours Saturday; and 16 hours Sunday. During the remainder of the week Gurr operated his own business taking portable X-rays for two radiologists. Respondent's management including Deneen knew this. Gurr began work for the Hospital in May 1976 as a staff technologist in the radiol- ogy department on the graveyard shift from 11:30 p.m. to 7 a.m. He worked this shift until late 1977 when he started working the 40-hour weekend shift that he was ' In its answer Respondent admits that it is an employer engaged in commerce within the meaning of Sec. 2(6) and (7) of the Act and meets the Board's applicable jurisdictional standard, and that the Union is a labor organization within the meaning of Sec. 2(5) of the Act. 620 ST. ALPHONSUS HOSPITAL working at the time of his discharge. Initially, when he began working weekends he was classified as a senior technologist, then with the other senior technologists in the department was reclassified to the position of super- visor and then, in February 1980, was reclassified to co- ordinator. The function of the radiology department, briefly stated, is to take X-rays of the sick and injured who are patients at the Hospital or come to the Hospital in an emergency basis. In addition to the employees of the Hospital who work in this department, there are radiolo- gists employed there who are physicians trained to read the X-rays taken by the department's employees. The ra- diologists are not employees of the Hospital, but are in- dependent contractors who, as a group, have a contract with the Hospital to provide radiologic services. The ra- diologists' work brings them into close contact with the technicians employed in the radiology department and the radiologists' work is dependent on the quality of the work performed by the technicians. Likewise, the group of physicians who are employed in the Hospital's emer- gency room, who are also independent contractors, rely on the work of the technicians employed in the radiol- ogy department. In late July or early August 1979 the Union com- menced a campaign to organize the Hospital's employ- ees. On March 31, 1980, the Union filed representation petitions with the Board seeking a representation election in two separate bargaining units: a unit encompassing only the Hospital's professional employees and another unit encompassing all other employees excluding the pro- fessionals. A hearing was conducted in April 1980 and during the hearing the representatives of the Union and Respondent stipulated that inasmuch as persons classified as "coordinator-radiology" and "supervisor-radiology" had the authority to hire or fire or effectively recom- mend the same that the employees employed in those classifications should be excluded from voting in the rep- resentation elections. The hearing was closed later in April. However, prior to the issuance of a decision the representatives of the Union and Respondent, with the approval of the Board's Regional Director, on May 30, 1980, entered into separate agreements to hold elections in the foresaid bargaining units. There is no evidence that at the time the parties entered into these election agreements that there was an agreement whereby the parties agreed that persons employed as coordinator-radi- ology or supervisor-radiology were ineligible to vote as statutory supervisors. However, the Excelsior list submit- ted by Respondent to the Union omitted the name of Gurr and apparently omitted the names of all of the other persons classified as coordinators.' The election was conducted on July 10, 1980, and inasmuch as the Union failed to secure a majority of the ballots cast in either unit the Board certified the results of the election. 'An "Excelsior List" is a list of the names and addresses of potentially eligible voters drawn up by the employer and submitted to the Board several weeks before an election. The list is distributed to all parties to the election to facilitate access to the electorate. See Excelsior Underwear, Inc and Saluda Knitting Inc., 156 NLRB 1236 (1966). This same list is also used during the election to indicate which employees actually voted. When the Union commenced its organizational cam- paign Gurr was one of approximately 14 persons em- ployed by Respondent who were on the Union's organi- zational committee. They were responsible for the Union's organizational campaign. Early in August 1979 the names of these persons were transmitted by letter to Respondent's management which was informed that they were organizers for the Union. Shortly after management received this letter, Gurr, in the presence of Assistant Administrator Anton, was informed by Department Manager Deneen that management considered Gurr to be a supervisor and that all of Gurr's union activity must cease. Gurr indicated he was not sure he agreed that he was a supervisor and asked to see a copy of his job de- scription. Anton told him he did not need to see a copy of his job description, that he was considered a part of management and should act accordingly. Gurr again stated he was not sure he was a supervisor and asked to see his job description. Anton again declined to show him a copy of his job description. Deneen warned Gurr that if he did not stop his union activity his job would be in jeopardy. Gurr concluded this conversation by stating he would have to check into the matter further and con- sider it. Shortly thereafter Gurr informed Deneen that he would comply with management's requests and cease all of his union activities. But, late in January 1980 when Gurr was complaining to management about Respond- ent's failure to promote him to the position of coordina- tor, it is undisputed that Deneen told him that the reason he was not promoted was that Deneen and Anton still thought he was involved with the Union because he had been observed talking with union sympathizers and his wife was observed distributing union leaflets. Deneen stated that Gurr would be promoted if he swore he would have no more contact with the Union and would support the Hospital. Gurr replied that his wife had not engaged in the union activity attributed to her and that he had ceased his union activities, whereupon he was promoted to coordinator. Thereafter in April 1980 Gurr attended the representation hearing as a spectator and with several other employees sat immediately behind the representative of the Union. And, on July 10, 1980, the day of the representation election. Gurr and another co- ordinator employed in the radiology department, Ray Kapalczynski, went to the polling area and voted. Since their names were not on the Excelsior list their ballots were challenged by the Board agent in charge of the election. Later that day when the parties discussed the challenged ballots Respondent's representative took the position that Gurr and Kapalczynski were ineligible to vote because they were statutory supervisors. The repre- sentative of the Union indicated that the Union did not have sufficient information about their duties to take a position. On July 10, 1980, when Deneen was informed that Gurr and Kapalczynski voted in the election he became very angry and decided to discharge them because they had voted contrary to Respondent's instructions not to vote.s Deneen's superior, Assistant Administrator Anton, ' Deneen testified that Gurr and Kapalczynski, along with the other persons who Respondent regarded as supervisors, had been told by Re- Continued 621 DECISIONS OF NATIONAL LABOR RELATIONS BOARD agreed that Gurr and Kapalczynski should be dis- charged, but on July 10 Deneen and Anton accepted the recommendation of Respondent's lawyer that Respond- ent take no action against Gurr or Kapalczynski for I month so as to allow a "cooling off" period. Between this July 10 meeting and the subsequent meeting with Respondent's lawyer held on approximately August 10, 1980, infra, Deneen during a meeting attended by Assist- ant Manager Krogstad, Supervisors Champion and Benoit, and Coordinators Lawson and Code told them that Respondent intended to discharge Gurr and Kapalc- zynski because they voted in the union representation election even though they were told they were ineligible to vote as supervisors.' On approximately August 10, 1980, Deneen and Anton met with Respondent's lawyer and its personnel director to discuss the discharges of Gurr and Kapalczynski. The lawyer informed them that they had every right to fire Gurr and Kapalczynski, but warned that if they did fire them they could expect the discharges to be litigated, that he felt the discharges would cause a lot of morale problems among the staff, and that in view of these considerations plus the fact that Respondent had just won a victory in the representation election that he felt Respondent would be better off to forget about the matter and not discharge them. Deneen and Anton accepted the lawyer's recommendation. On Monday, September 15, or Tuesday, September 16, 1980, Deneen informed Gurr that his work schedule was being changed from weekends to weekdays, that effec- tive Monday, September 22, Gurr would work the day shift, 8 a.m. to 5 p.m., Monday through Friday, rather than his 40-hour weekend shift. Deneen stated that the reason for the change in Gurr's work schedule was that the radiology department needed another coordinator to work on the day shift. Gurr protested this change in his work schedule. He told Deneen it would hurt him finan- cially because for the past 3 years he had been operating his own portable X-ray business during weekdays. Gurr asked whether Deneen was responsible for the schedule change or whether Deneen's superiors had directed him to make the change. Deneen stated that he, not his supe- riors, instituted the change because he needed a person of Gurr's ability to work weekdays because of a "staffing need" in the department during the day shift. Gurr indi- cated he did not think he was being treated fairly. Deneen told him to speak with Respondent's personnel director, David Halter, if he felt he were being treated unfairly. 5 spondent's attorney that they were not eligible to vote in the representa- tion election because they were supervisors, and that it was even illegal for them to be in the voting area because of their supervisory status. ' The record also reveals that Deneen, sometime between June 22, 1980, and July 22, 1980, told radiologist James Mack that since Gurr was a supervisor or an administrator that he should not talk about the Union or be "as actively involved in union activity as he was," and indicated that he thought Gurr's family was also involved in union activity. In ad- dition, after the July 10, 1980, representation election Deneen also in- formed Mack that Gurr had "influenced" Coordinator Kapalczynski to vote in the election. I The description of the aforesaid conversation between Gurr and Deneen and their later conversation, infra, on Friday, September 19, 1980, is based on Gurr's testimony. I have rejected Deneen's version of these conversations insofar as they conflict with Gurr's because in terms Shortly after Gurr was notified about his new work schedule the subject was brought up at a supervisory meeting. The supervisors informed Deneen that the em- ployees in the radiology department felt Respondent was treating Gurr unfairly by transferring him from week- ends to weekdays and asked whether Gurr was being punished "on account of the Union." Supervisor Linda Benoit testified that, in response to this question, Deneen told the supervisors, "Yes, it's true, but we are to tell the people that the reason [for Gurr's reassignment from weekends to weekdays] is because the weekend shifts were going down; we were not having as many patients, and that our weekday shift was increasing. " ' On November 16, 1980, Gurr, immediately after speak- ing to Deneen, went to Personnel Director Halter's office. Halter's secretary informed him that Halter was out of the office, so Gurr left a message for Halter to contact him as soon as possible. Halter failed to contact Gurr, so prior to starting work on Friday, September 19, Gurr again spoke to Deneen. Gurr asked whether he had any choice in the matter of working weekdays. Deneen told him that he would have either to work weekdays as requested or resign. Gurr stated that he would not resign, that he felt that what Deneen was doing to him was unfair. Deneen again advised Gurr to speak to Per- sonnel Director Halter if he felt he was being treated un- fairly. The meeting ended with Deneen agreeing to give Gurr 2 weeks more before he had to report for work on the day shift, so that the radiologists whom Gurr worked for during the week would have an opportunity to make other arrangements. On Friday, September 19, upon leaving Deneen's office Gurr again went to the office of Personnel Direc- tor Halter and was informed that Halter was not in his office and that the message that Gurr had left earlier that week was still on Halter's desk. Gurr asked Halter's sec- retary to be sure and have Halter phone him at the Hos- pital anytime that weekend as he would be working there for the entire weekend. ' Later that same day, Friday, September 19, after start- ing work Gurr spoke to three of the department's radi- ologists, including Dr. James Mack who is the depart- ment's medical director. Gurr asked if they had been in- formed about the changes which were going to effect the department's weekend shift. They indicated they had not been informed of any changes. Gurr told them he was being removed from the weekend shift and reas- signed to the weekday shift against his will and that there was going to be a total change in the organization of his demeanor Gurr impressed me as a reliable and sincere witness whereas Deneen did not. a The description of what was stated about Gurr's reassignment to weekdays at this meeting is based on the testimony of Linda Benoit who, when she testified, was employed by Respondent and who, in terms of her demeanor, impressed me as a reliable and sincere withness. Deneen generally denied having told anyone that Gurr's work schedule was changed because of Gurr's union sympathies, but did not testify about the aforesaid meeting or what, if anything, about Gurr was mentioned at that meeting. Benoit impressed me as a more credible witness than Deneen. 7 It is undisputed that Halter did not contact Gurr. Halter testified that he did not receive Gurr's message until "late on Friday afternoon." Halter did not explain why he made no effort to contact Gurr that week- end as requested. 622 ST. ALPHONSUS HOSPITAL of the weekend shift. Gurr indicated he felt the depart- ment would not be able to provide the same service weekends without his presence for the full 40 hours be- cause he, Gurr, knew more about what went on in the department weekends than anyone who would be rotat- ing through there. The radiologists indicated they had not been informed of this change. Gurr indicated that he felt he could not accept the change in schedule because it would destroy him financially by disrupting his other business and stated that he felt he was being punished by Respondent because of his past involvement with the Union. Dr. Mack advised Gurr that he thought very highly of him as a technologist and that he would speak with Department Manager Deneen about the matter. On September 19, after having spoken with the radi- ologists, Gurr also informed the physician in charge of the emergency room, Dr. Robert Miller, that he was being reassigned to work weekdays and that this would affect the weekend staffing of the emergency room. Gurr also stated that he felt his reassignment was unfair and that it was a political move by Respondent designed to punish him. Miller offered to help Gurr by drafting a letter to Deneen on behalf of Gurr which would be signed by the other emergency room physicians. In fact, such a letter, signed by six of the physicians who worked in the emergency room, was delivered to Deneen on Monday morning, September 22, 1980. The letter reads as follows: It has come to our attention that Mr. Gurr will be moved from a weekend coordinator to a daytime week coordinator. We feel that this transfer, for what ever management reason, is not in the best in- terest of patient care and emergency x-ray cover- age. During the busy weekend patient load in the emergency room, it is important that the emergency room physicians be provided with excellent ancil- lary medical coverage. Our confidence in the radi- ology technician is most important to our needs, es- pecially during times when there are less radiolo- gists in the department and when there are in- creased patient visits. Mr. Gurr has provided excel- lent trauma and emergent medical x-ray films for the emergency physicians and has immediate rap- port and patient interest that often has a calming effect upon the anxiety prone traumatized patient. We strongly recommend that you continue the same coverage for the weekend that has been pro- vided in the past. We too often have been provided with far from excellent coverage for these difficult night and weekend hours. This may be a result of lack of interest of the technician to work these hours or lack of technician expertise. We therefore see no reason to make a change in a system and person that provides these excellent services and qualities. On Monday, September 22, Dr. Mack met with Deneen and Anton and indicated that the department's radiologists were upset about management's decision to remove Gurr from the weekend shift. Mack stated that Gurr was doing an excellent job with respect to the technical coverage on the weekends and that the physi- cians in the emergency room were also happy with his work and felt he was doing a good job on weekends. Deneen indicated that the decision to reassign Gurr to the day shift had been a joint decision made by himself and Anton and explained the reason for the decision. The meeting concluded with Deneen and Anton indicat- ing that they agreed with Mack's evaluation of Gurr's work on the weekend shift, but that they felt that by complaining to the radiologist about his change of sched- ule rather than following the Company's usual grievance procedure that Gurr had acted improperly and that be- cause of this indicated Gurr would be terminated.8 Later, on September 22, Gurr asked Mack if he had learned anything from the Hospital's administration about Gurr's change of assignment. Mack answered that Gurr did not want to know what he had learned because things did not look good for Gurr. Gurr asked whether Mack meant that Gurr was going to have to work week- days. Mack told him that it did not make any difference if he accepted the weekday assignment because the Hos- pital's administration had informed Mack that they "were not willing to work with [Gurr] in any way." On Tuesday, September 23, Deneen asked Gurr to come to his office. When Gurr entered the office, ac- cording to Gurr's credible and undenied testimony, Deneen stated, "I'd finally done it, that I had been asking for this for a long time." Gurr asked what Deneen meant. Deneen handed him a termination slip and a ter- mination check. When Gurr asked why he was being ter- minated, Deneen pointed to the termination slip which stated that Gurr was being discharged because he "failed to follow established grievance procedure. " ' On September 23 Deneen called a meeting of the staff of the radiology department for the purpose of informing them about Gurr's termination. He told them that the ' The description of the aforesaid conversation Mack had with Deneen and Anton is based on a composite of Mack's and Deneen's testimony which was not inconsistent. However, whenever there is a conflict in their testimony about what was stated at this meeting and who was pres- ent, Deneen failed to place Anton at this meeting, I have credited Mack's testimony because of his status as a disinterested witness and because in terms of his demeanor he impressed me as a more credible witness then Deneen. ' Respondent's grievance procedure as set forth in its "personnel poli- cies" handbook distributed to employees, reads as follows in pertinent part: EMPLOYEE PROBLEMS If an employee feels he/she has a just complaint or a problem, Saint Alphonsus Hospital has a definite procedure which is to be fol- lowed. FIRST The employee should discuss the complaint frankly and sin- cerely with his/her immediately [sic] supervisor. If this fails to prove satisfactory answer .... SECOND The employee should discuss it with the Division Direc- tor. If it is a justifiable complaint, it wil be corrected. However, if a solution is not reached in this manner .... THIRD An appointment with the Personnel Director should be re- quested by the employee to discuss the complaint. The Personnel Director will review the complaint and, if necessary, will discuss it with the Administrator. The decision of the Administrator will be final and will be made known to the employee immediately after all facts are known and evaluated. 623 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hospital had decided to terminate Gurr, that Gurr "had been asking for it for a long time," and stated that if any of the staff wanted to find out the reason for Gurr's ter- mination they could speak to Deneen personally after the meeting. Immediately following the meeting it is undis- puted that technician Linda Wandro went to Deneen's office and asked why Gurr had been terminated and that Deneen told her that the reason for Gurr's termination was that Gurr "refused to work the day shift." Respondent admittedly did not hire a technologist to take the position Gurr was scheduled to assume on the day shift and there is no evidence that Respondent other- wise assigned someone to fill that position. And, regard- ing the operation of the weekend shift after Gurr's termi- nation, the record reveals for a period of 2 months im- mediately after his termination there were weekends during which no supervisor or coordinator was assigned to work on that shift, rather the shift was covered by a staff technologist. '0 B. The Supervisory Status of Benoit, Champion, and Gurr 1. Applicable principles Under Section 2(11) of the Act, the term "supervisor" includes: Any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or disci- pline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not or a merely routine or clerical nature, but requires the use of independent judgment. The burden approving supervisory status rests on the party alleging that such status exists. Tucson Gas & Elec- tric Company, 241 NLRB 181 (1979), and cases cited therein. While it is established that the possession of any one of the functions enumerated in Section 2(11) is suffi- cient to establish supervisory status, Section 2(11) re- quires, however, that a supervisor must perform these functions with independent judgement as opposed to in a routine or clerical manner. Walla Walla Union-Bulletin, Inc. v. N.L.R.B., 631 F.2d 609, 613 (9th Cir. 1980); N.L.R.B. v. Harmon Industries, Inc., 565 F.2d 1047, 1049 (8th Cir. 1977); N.L.R.B. v. Security Guard Service, Inc., 384 F.2d 143, 147 (5th Cir. 1967). Although the existence of any of the Section 2(11) powers, "regardless of the frequency of its exercise is sufficient," the "failure to ex- ercise [supervisory powers] may show the authority does not exist." Laborers and Hod Carriers Local No. 341 v. N.L.R.B., 564 F.2d 834, 837 (9th Cir. 1977). Moreover, isolated and infrequent incidents of supervision does not elevate a rank-and-file employee to supervisory level. 1' Based on the testimony of staff technologist Linda Wandro who worked weekends twice during this 2-month period when there was no supervisor or coordinator, I have considered Deneen's testimony that he did not believe there was such a period when the weekend shift was without supervision, but Wandro impressed me as a more credible wit- ness than Deneen in terms of her demeanor. N.L.R.B. v. Doctors' Hospital of Modesto, Inc., 489 F.2d 772, 776 (9th Cir. 1973); Westinghouse Electric Corpora- tion v. N.L.R.B., 424 F.2d 1151, 1158 (7th Cir. 1970). Fi- nally, the Board, in interpreting Section 2(11) has been instructed that "[i]t is important for the Board not to construe supervisory status too broadly, for worker who is deemed a supervisor loses his organizational rights." McDonnell Douglas Corporation v. N.L.R.B., 106 LRRM 2925, 2928 (9th Cir. 1981). Accord: Westinghouse Electric Corp. v. N.L.R.B., supra. ("The Board has a duty to em- ployees to be alert not to construe supervisory status too broadly because the employee who is deemed a supervi- sor is denied employee rights which the Act is intended to protect.") 2. Champion and Benoit During the time material herein Benoit and Champion worked in the radiology department diagnostic section on the day shift. They were classified as supervisors. The diagnostic section's day shift, besides Champion and Benoit, employed 10 staff technologists, 2 receptionists, 7 aides, and Cliff Code, a coordinator technologist. The person in charge during the day was Fred Deneen, the department manager. Under Deneen in the supervisory hierarchy was Department Assistant Manager Terry Krogstad. Deneen and Krogstad spent approximately 50 percent and 70 percent of their time, respectively, during the day shift in the diagnostic section. It was Deneen and Krogstad, more particularly Krogstad, who assigned the work to the technologists employed on the day shift and, when it was necessary to change an assignment due to an absence or another reason, Krogstad made the new as- signment. Deneen and Krogstad are admittedly statutory supervisors. Respondent contends that Code, Benoit, and Champion are likewise statutory supervisors. Respondent does not contend nor is there evidence to support a contention that either Benoit or Champion, during the time material herein, possessed the authority as enumerated in Section 2(11) of the Act to hire, trans- fer, suspend, lay off, recall, promote, discharge, or to ef- fectively recommend such action. In support of its contention that Benoit effectively rec- ommended that employees be rewarded, Respondent points to the fact that Benoit filled out an annual per- formance evaluation form for two of the receptionists who worked in the department's office. The evaluation forms were then reviewed by Benoit's supervisors; i.e., Deneen and/or Anton. There is no evidence that in any one of the evaluations performed by Benoit that she made any recommendations and if she did whether man- agement adopted or rejected them. Nor is there any evi- dence that management relied on Benoit's evaluations without an independent investigation, or whether an evaluation of Benoit had any effect on employees' em- ployment status or that they impaired a reasonably ex- pected employment benefit, or resulted in a reward. Quite the opposite, as evidenced by the evaluations sub- mitted by Coordinator Gurr, infra, an inference is war- ranted that management conducts an independent investi- " It is undisputed that Champion did not fill out evaluation forms. 624 ST. ALPHONSUS HOSPITAL gation and does not automatically accept the recommen- dations set forth in the evaluation. Under the circum- stances, I am of the opinion that the record does not es- tablish that Supervisors Champion or Benoit has the au- thority to effectively recommend that employees be re- warded. In support of its contention that Champion and Benoit were authorized to discipline other employees or to ef- fectively recommend such action, Respondent points to Manager Deneen's testimony that at a meeting of the su- pervisors and coordinators he told them that they had the right to discipline employees and showed them disci- plinary action forms and explained how to fill them out. This testimony was given in response to a leading ques- tion and was not corroborated by any other witness. Quite the opposite, Champion, Benoit, and Gurr in effect denied Deneen ever gave this instruction. Benoit, how- ever, testified that when she thought one of the persons who worked in the office needed to be disciplined she discussed the matter with the person involved and then made a note of it in the person's personnel file and if she felt the matter warranted it also made a notation in the person's annual evaluation. There is no evidence that Benoit made any kind of a disciplinary recommendation or if she made such a recommendation whether or not management accepted or rejected it or conducted an in- dependent investigation or whether as a result of what Benoit placed in an employee's personnel file or evalua- tion that the employee's employment status was effected or that it impaired a reasonably expected employment benefit. Under the circumstance the record does not es- tablish that Benoit or Champion had the authority to dis- cipline other employees or to effectively recommend such action. In support of its contention that Champion and Benoit were authorized to adjust employees' grievance or to ef- fectively recommend such action, Respondent points to its published grievance procedure which states that if employees have complaints or problems they should use the Company's grievance procedure and that at the first step of first procedure the employees should discuss their complaints with their "immediate supervisor." There is absolutely no evidence that either Champion or Benoit or any other individual classified as a supervisor in the radiology department ever adjusted an employee's griev- ance pursuant to this or any other procedure, nor was there any other evidence presented to establish the per- sons classified as supervisors possessed the authority to adjust employees' grievances or to effectively recom- mend how they should be adjusted. It is for these rea- sons that I find that there is insufficient evidence to es- tablish that Champion or Benoit was authorized to adjust employees' grievances or to effectively recommend such action. During the time material herein Benoit, besides doing the work of a staff technologist, worked in the X-ray de- partment's office where she coordinated the flow of work between the X-ray department and the other de- partments of the Hospital. The record establishes that the work performed by the receptionist and the aides in the office of the X-ray department was routine work which required little if any discretion. Benoit performed the same work as the aide and/or receptionist who worked with her in the office and, in addition, due to her experi- ence as a technologist coordinated the flow of work be- tween the Hospital and the X-ray room. There is no evi- dence that Benoit responsibly directed or assigned work to the personnel in the office, or that she engaged in this conduct using her independent judgment. I recognize that Benoit at one point testified she supervised the em- ployees in the office. However when viewed in the con- text of her entire testimony it is clear that she was refer- ring to her duties of coordinating the work of the office with the other areas of the Hospital. There is absolutely no evidence that in coordinating the work that Benoit either directed the office employees or assigned them work. During the time material herein besides performing the usual work of a staff technologist, Champion was in charge of ordering all of the department's supplies and was the person in charge (PIC) of the department's light- room one afternoon a week. 2 There is no evidence that Champion at any time directed or assigned work to other radiology department technologists or that she di- rected or assigned work to employees in connection with the ordering of supplies. Regarding her role as PIC she coordinated the work of the department. There is no evi- dence that in doing this she either responsibly directed employees or assigned work to employees other than routine work which did not require her to use independ- ent judgment. Specifically if the Hospital's surgery de- partment phoned and stated it needed an X-ray technolo- gist in surgery, Champion paged the X-ray technologist who had already been designated by Assistant Manager Krogstad to perform that duty. Also the people in the radiology department's office transferred phone calls to the PIC from doctors wtih questions about certain exams performed by the radiology department. The PIC an- swered these questions, usually after conferring with the radiologist. Finally, the PIC places the X-ray request which came from the office into one of the four baskets located in te lightroom and one of the aides picks up the request form and takes the patient into the lightroom, at which time the PIC tells the aide which X-ray room is available for the patient to be x-rayed. In support of its contention that Benoit and Champion possess the power to responsibly direct and independent- ly assign work to the employees in their section, Re- spondent points to the job description maintained by Re- spondent for the position "supervisory/x-ray technolo- gist." In pertinent part the job description describes one of the duties of a person employed in this classification as that of recommending and assigning for the various sections in the radiology department, of recommending the room assignments of the staff technologist on a daily basis, and of making the necessary adjustments on a day- to-day basis as is needed. Also, with respect to "supervi- sory responsibility" said job description states that the '" Subsequent to the time material herein there was a change in Cham- pion's duties. Approximately 2 months after Gurr's discharge, Respond- ent decided to place its supervisors and coordinators in charge of the weekend shift on a rotating basis. 625 DECISIONS OF NATIONAL LABOR RELATIONS BOARD supervisory/X-ray technologist "supervises daily routine operations of an assigned section." The aforesaid job description is false insofar as it infers that a person who is classified as a radiology department supervisor on the day shift has the authority to assign or recommend the assignment of technologists to the sever- al X-ray rooms in the department or adjust such assign- ments. It is undisputed that Department Manager Deneen and Assistant Manager Krogstad, more particu- larly Krogstad, make and modify such assignments. And, insofar as the job description indicates that the supervi- sory responsibility of the supervisor is limited to "rou- tine" matters, it fails to comport with the requirements of Section 2(11) which states that the exercise of the power enumerated in that section must be more than merely routine in nature, but requires the use of independent judgment. There is no evidence that Benoit or Champion was ever shown the aforesaid job description. Benoit testified that in approximately 1977 when she was reclassified from the position of staff technologist to supervisory technologist that her duties did not change, that she was not told that her job duties were changed, and that she was never shown a copy of a job description. In fact, the record establishes that when a supervisory technologist asked to see a copy of the job description for that classi- fication his request was refused. Specifically, in the fall of 1979, Mike Gurr, who at the time was classified as a supervisory technologist, was informed by Manager Deneen and Assistant Administrator Anton that since management considered him to be a supervisor that his union activity must cease. Gurr questioned the assertion that he was a supervisor and asked to see the job de- scription for his position. Deneen refused to allow Gurr to see the description of his job. 13 Finally, the uncontra- dicted and credible testimony of Benoit and Champion, supra, demonstrates that in connection with the direction of other employees or the assigning of work to other em- ployees their duties were merely of a routine or clerical nature which did not require the use of independent judgment. In support of its claim that Benoit and Champion were statutory supervisors during the time material herein, Re- spondent also points to certain secondary indicia: their classification and designation as supervisors; 4 their at- tendance at supervisory meetings, in particular a manage- ment training workshop; the fact that they received more money than the other staff technologists;"5 the fact that they either shared an office or desk with a coordinator whereas other employees had no desk or office of their own; and the fact that the representatives of Respondent I" In view of Deneen's refusal to permit Gurr access to his job descnp- tion, I reject the uncorroborated testimony of Personnel Director Halter that employees have free access to their job descriptions. 14 I note that in determining whether a person is a statutory supervisor that "[jlob titles are unimportant." Laborers and Hod Cariers Local No. 341 v. N.LR.B., supra. Accord: Walla Walla Union-Bulletin. Inc. v. N.LR.B., supra ("The specific job title of the employee is not control- ling"); Arizona Public Service Company v. NLR.B., 453 F.2d 228, 231, fn. 6 (9th Cir. 1971) (The job title is "irrelevant"). 1" It is settled that disparity of compensation cannot be "accorded litmus paper significance in the absence of solid evidence of the posses- sion of supervisory responsibility." Oil. Chemical and Atomic Workers v. N.LR.B., supra. and the Union, during the representation hearing, stipu- lated that persons classified as "supervisors" in the radi- ology department were statutory supervisors. 16 But, where as here there is no evidence that Benoit or Cham- pion possesses any one of the several indicia for a super- visor enumerated in Section 2(11) of the Act, the afore- said secondary indicia which are not statutory indicators of statutory authority are insufficient to establish that Benoit and Champion are supervisors as that term is de- fined in Section 2(11) of the Act."' Moreover, that Re- spondent did not intend to give Champion or Benoit any of the authority enumerated in Section 2(11) when it re- classified them as supervisors is established by the unden- ied and credible testimony of technologist Wandro that Assistant Department Manager Krogstad told her that if technologists performed any duties over and above the usual duty of a technologist, such as ordering supplies, they were classified as supervisors and paid more money. I also am of the opinion that any inference for the above- described secondary indicia that Respondent intended that Champion and Benoit be statutory supervisors is nullified by the absence of either Champion's or Benoit's name on the Respondent's list of "management titles." This is a list of persons and their job titles maintained by Respondent's personnel department who were consid- ered to be a part of management. It was intended to be used by Respondent for, among other things, determin- ing the supervisory status of persons in National Labor Relations Board's represenatation proceedings. Although there are several persons classified as supervisors named on this list, the names of Champion and Benoit are absent. 18 Based on the foregoing, I am persuaded that Respond- ent has not established that either Benoit or Champion was a supervisor within the meaning of Section 2(11) of the Act. 3. Gurr a. Background Gurr began work for Respondent in May 1976 as a staff technologist in the radiology department. He worked from 11:30 p.m. to 7 a.m. and was the only tech- nologist in that department who worked this shift. Com- 16 Although the representatives of Respondent and Union entered into this stipulation during the representation hearing, the hearing was thereaf- ter aborted as the parties entered into an election agreement. There is no evidence or contention that at the time the parties entered into their elec- tion agreement that they agreed that the supervisors in the radiology de- partment were statutory supervisors. I also note that the stipulation, on its fact, proved too much inasmuch as the basis for the stipulation rested on the parties' subsidiary stipulation that the radiology supervisors had the power to hire and fire or to effectively recommend the same, where- as it is undisputed that the supervisors do not have any such authority. Clearly this demonstrates the unreliability of the stipulation. 17 Likewise the fact that Respondent, in evaluating the performance of Champion and Benoit evaluated their "supervisory ability" does not es- tablish that either one of them was a statutory supervisor whereas here there is no evidence that they in fact possessed any of the powers enu- merated in Sec. 2(11) of the Act. "' Personnel Director Halter testified that the absence of Champion's and Benoit's names from the list was due to either an oversight or a con- clusion by personnel that their positions did not meet the requirements of a supervisor. 626 ST. ALPHONSUS HOSPITAL mencing in November 1977 the radiology department, at Gurr's suggestion, instituted a weekend shift wherein Gurr and another radiology technologist worked 40 hours Friday through Sunday, thereby eliminating the necessity of having technologists employed during the week from working weekends every 3 weeks on a rotat- ing basis. When Gurr commenced working weekends he was reclassified from a staff technologist to a senior tech- nologist. Sometime during 1978 the other technologist ceased working 40 hours a weekend and once again the other technologists worked weekends on a rotating basis. Gurr continued to work 40 hours each weekend. Either in 1978 or 1979 Gurr and the other senior technologists employed in the radiology department were reclassified as supervisors. In November 1979 all of the supervisory technologists in the radiology department except for Gurr, Champion, and Benoit were reclassified as coor- dinators, a newly created position. Those reclassified as coordinators were as follows: Cliff Code, Kathy Hol- comb, Dan Kaplczynski, and Judy Lawson. Late in November 1979 or early in December 1979 the subject of the newly created position of coordinator was discussed at a staff meeting of the radiology department. In response to a request by the technologists for a copy of the job description for the newly created position, De- partment Manager Deneen stated he did not have a copy of the job description to give them. When asked to de- scribe the qualifications a technologist needed to qualify for a coordinator's position Deneen stated that a tech- nologist had to have a certain amount of seniority in the department to qualify for the position, but that the job duties of the technologists who were promoted to coor- dinator would not change. Deneen explained to the staff that the coordinator position was instituted "to create more steps within the department, so that a staff tech- nologist could not fill a supervisor technologist position. It was to create more steps within the department." During the same period of time, Gurr who was unhappy about not being promoted to coordinator, complained to Deneen and Anton about the Respondent's failure to re- classify him. Deneen informed him that he and Anton had decided not to make him a coordinator because he did not supervise the same people every weekend. Gurr pointed out that Code, who had been promoted to coor- dinator, did not supervise anyone. Deneen stated that the reason he had promoted Code to a coordinator's position was because Code, as the most senior technologist in the department, was at the top of the pay scale and there was no other way management could move Code up salary wise, other than through a coordinator's position. Gurr indicated that he disagreed with management's de- cision not to promote him and indicated he felt he should have been promoted because of his responsiblities and because of his seniority. Thereafter in late January or early February 1980, as described supra, after promising he would support management and not engage in union activity, Gurr was promoted from supervisor to coordi- nator with a pay raise of approximately $1 an hour which accompanied the reclassification. At the time of the reclassification from supervisor to coordinator, Holcomb was coordinator of the depart- ment's ultra sound section which besides Holcomb em- ployed I technologist; Lawson was the coordinator of the department's special procedures section which be- sides herself employed I or 2 technologists; Kapalczynski was the coordinator of the night shift, 3 to 11:30 p.m., which employed 3 to 4 technologists plus a receptionist and 2 to 3 aides; and Code, according to Deneen's initial testimony, was the coordinator for the department's di- agnostic section on the day shift on which 10 staff tech- nologists, 2 supervisors, 2 receptionists, and 6 or 7 aides worked. Deneen's later testimony, however, indicates that during the time material herein Code's responsibil- ities were limited to the taking of portable X-rays in sur- gery on the day shift. 9 Deneen testified that Code, be- sides performing the usual work of a staff technologist in taking the portable X-rays, "was over those that did them, when they were doing them. In other words, he would set up the protocol how they were to be done, and he did them himself also." Deneen failed to flesh out the aforesaid testimony. As I have indicated previously, it is undisputed that Deneen and Assistant Manager Krogstad were both present in the diagnostic section during the day shift. The section's work assignments were normally made by Krogstad and normally he or Deneen was present to supervise the work of the em- ployees in that section. The testimony about the work of the department presented by X-ray technologists Wandro, Champion, and Benoit, who were employed on Code's shift, signficantly omits any reference to Code having any contact with them workwise or otherwise. Indeed, Champion testified that Code regularly worked in surgery doing the portable X-rays and performed the same work which Champion did when she was doing portables and that one afternoon a week Code worked as a PIC, as Champion did. In short, Deneen's conclusion- ary testimony that Code "was over" technologists who did the portable X-rays in surgery in that he would "set up the protocol how [the X-rays] were to be done" was not elaborated on nor was it corroborated by any other witness and it was substantially contradicted by the credible testimony of Champion and Gurr. 20 Any doubt that Code did not supervise any other employees in any sense of that term-statutory or otherwise-is removed by Deneen's admission to Gurr, described supra, that Code did not supervise anyone but had nevertheless been promoted to the position of coordinator because, as the most senior technologist in the department, he was at the top of the pay scale for his classification, so the only way that management could give him more money was by reclassifying him as a coordinator. I find that Code, during the time material herein, was not a supervisor as that term is defined in Section 2(11) of the Act. At the time Gurr was reclassified to the position of co- ordinator he was working the weekend shift; namely, Friday from 3:30 to 11:30 p.m.; Saturday, 7 a.m. to 11:30 p.m.; and Sunday, 7 a.m. to 11:30 p.m. Gurr's Friday '9 Thereafter, well after Gurr's termination, Code was apparently given additional responsibilities which are not material to the Decision herein. 'O In corroboration of Champion's aforesaid testimony. Gurr testified that Code was the most senior technologist in the department who had the most experience in performing portable X-rays of the kind done in surgery and spent virtually all of his time doing this work although on occasion he performed X-ray exams in the diagnostic section. 627 DECISIONS OF NATIONAL LABOR RELATIONS BOARD work shift coincided with the evening shift, thus there were the same number of persons working at that time who were usually employed on the evening shift, includ- ing Evening Shift Coordinator Kapalcyznski. 21 On Satur- day, approximately three to four technologists worked 8 hours during the day plus the technologists who normal- ly worked from 7 p.m. to 7 a.m. Also, two to three aides and one receptionist worked during part of Gurr's Satur- day shift. On Sunday, one technologist besides Gurr worked 8 hours during the day and another one came in from 7:30 p.m. to 7:30 a.m. Also, one receptionist and one or two aides worked during a part of this shift. The technologists who worked during the days with Gurr on Saturday and Sunday were regularly assigned to either the day shift or the evening shift, but every 4 weeks ro- tated for weekend work. 22 The aides and receptionists were regularly assigned to the weekend shift. b. Gurr's authority to assign or responsibly direct employees using independent judgment rather than acting in a routine or clerical manner The X-ray technologists employed in the diagnostic section of the radiology department performed various types of X-ray examinations of patients. They are highly skilled workers who, as Department Manager Deneen testified, know what is expected of them and do it with- out supervision. The receptionist employed in the X-ray department re- ceives the patients, schedules the timing of the exams, prepares the paperwork connected with the X-rays, per- forms the typing and filing connected with said paper- work, and answers the department's telephone. The record establishes that this work is of a routine and cleri- cal nature which requires no supervision. The weekend shift receptionist, Dolores Brawley, testified that she needed no supervision because she knew what to do, that Gurr did not direct her work, and that her contacts with Gurr during working time were minimal. If there were questions about the treatment of patients, Brawley testi- fied, she consulted with Gurr or if she could not locate a patient's X-ray, which happened once a month, she in- formed Gurr who had one of the aides try to locate it. The aides in the diagnostic section of the radiology de- partment transport those patients who are immobile, to and from the X-ray rooms. Their work is of a routine nature and they normally perform it without any direc- tion or assignment. Carol Brannon, the weekend shift aide, testified she was just as likely to be asked by one of the other technologists in the department to assist with a patient as by Gurr. Gurr testified that he spend 90 percent of his working time doing the same work as the other technologists who worked with him. The other 10 percent of his time, he testified, was spent in coordinating the staff so as to ex- pedite the flow of patients in and out of the diagnostic section; i.e., answering questions about the order in which the patients should be x-rayed and whether the 2' On Friday, if Kapalcyznski or any of the other technologists from the evening shift were scheduled to work Saturday and/or Sunday, they did not work Friday night. 2" Coordinators Code and Kapalcyznski rotated working weekends with the other staff technologists. department was equipped to perform certain kinds of X- ray examinations. Gurr testified he did not assign the persons assigned to work weekends to do any particular work or to come to work or to work weekends or to do additional work, but that "it was a cooperative thing" and that Gurr worked alongside of everyone else. Gurr's testimony in this respect is corroborated by weekend aide Carol Brannon who in effect testified that she did not feel anyone was in charge during the weekends, but that the persons employed weekends "were very much like a little family [with] everyone just pretty much help- ing each other." If the testimony of the General Counsel's witnesses which has been set forth above is credited, it is plain that Gurr as the coordinator on the weekend shift, did not asign or direct the work of the employees as those terms are defined in Section 2(11) of the Act. 2 Respondent failed to call one witness to controvert the aforesaid de- scription of the operation of the weekend shift during Gurr's tenure. Although Respondent called Evening Shift Coordinator Kapalczynski as a witness he was not asked to testify about the manner in which the weekend shift operated despite the fact that over the period of 3 years in which Gurr was responsible for that shift Ka- palczynski worked on that shift on numerous occasions. I can only presume that his testimony would have cor- roborated the testimony of Gurr and the other employ- ees who testified on behalf of the General Counsel. It is for the foregoing reasons that I find that Respond- ent has failed to establish that Gurr exercised the author- ity to assign or direct, as those terms are defined in Sec- tion 2(11) of the Act. c. Gurr's authority to reward employees or effectively to recommend such action It is undisputed that Gurr has no authority to grant employees wage increases and the record establishes that on each occasion when Gurr recommended that an em- ployee be granted a pay raise his recommendation was rejected. Eventually he ws informed by Manager Deneen that management did not want his input regarding pay raises because management would decide who was going to get a pay raise and who was not going to get one. Specifically, on November 17, 1979, Gurr recommend- ed that student technologist Shigihara receive a pay raise due to his outstanding work; on May 11, 1978, recom- mended that receptionist Brawley receive a merit pay raise for her outstanding work; and on December 2, 1979, recommended that aide Brannon receive a pay raise due to her excellent work. Each of these recom- mendations were rejected. 24 In fact, after Brannon appar- :3 The General Counsel's witnesses, in particular Gurr, impressed me as credible witnesses demeanorwise. " This conclusion is based on Respondent's payroll records for the aforesaid employees and the credible testimony of Brannon and Brawley. I have rejected Deneen's testimony that Brawley received the pay raise recommended by Gurr. This testimony was contradicted by Brawley's and Gurr's testimony and Brawley's payroll records. I note that generally speaking Deneen, in terms of his demeanor, impressed me as an insincere witness who seemed to be more interested in bolstering Respondent's po- sition than in the truth. 628 ST. ALPHONSUS HOSPITAL ently complained to Deneen about her failure to receive the pay raise which Gurr had recommended, Deneen told Gurr that he should not recommend pay raises for the employees because it raised false hopes for the em- ployees and that management did not want Gurr's rec- ommendations regarding pay raises because other man- agement personnel would decide which employees would and would not receive pay raises. e. Gurr's authority to transfer, suspend, lay off recall, promote, or discharge employees or effectively to recommend such actions There is no evidence in the record that Gurr had any of the above-described authority. f. Gurr's authority to discipline employees or effectively to recommend such action Deneen testified that at a meeting attended by supervi- sors and coordinators he told them that they had the right to discipline employees, showed them the disciplin- ary action forms, and explained how these forms were to be filled out. This testimony which was given in the form of a "yes" answer to a leading question was uncor- roborated. Gurr and Champion specifically denied that any such instruction was given. I credit their testimony because Deneen, in terms of his demeanor impressed me as an incredible witness, whereas Gurr and Champion impressed me as honest witnesses. Deneen also testified that in approximately May 1979 Gurr complained to Deneen that an employee on the weekend shift went home early. Deneen testified he told Gurr that since Gurr was "the coordinator in charge he should have written up a disciplinary action form on the employee" and showed Gurr how to write up such a form. Gurr's version of what occurred differs. Gurr testi- fied he told Deneen that an employee who worked weekends had refused to do something which Gurr had asked him to do. Gurr asked what he could do about it. Deneen advised Gurr to send the person home and that Deneen would dispose of the matter. Gurr stated that he was uncomfortable doing this and asked Deneen if there were a company regulation he could refer the employee to when he issued this instruction. Deneen told Gurr not to worry about the matter and that he, Deneen, would handle the matter if Gurr sent the person home.' Since Gurr, in terms of his demeanor, impressed me as the more credible witness, I credit his version of the afore- said conversation. Gurr's uncontradicted testimony is that during the entire period of time that he was in charge of the week- end shift as either senior technologist, supervisor, or co- ordinator he never disciplined an employee or recom- mended that an employee be disciplined and, in fact, does not even know what a disciplinary action form looks like. Based on the foregoing, I find that Respondent has failed to establish that Gurr exercised the authority to discipline employees or effectively recommended such action. I am not persuaded that, because Gurr once re- ported an employee's misconduct to Deneen and was u Gurr never sent the person home. told to send that particular employee home, it warrants the inference that he possessed the authority to discipline employees inasmuch as this was an isolated episode. Moreover, Deneen made it clear that he, Deneen, would dispose of the problem, thereby suggesting that it was Deneen rather than Gurr who would discipline the em- ployee. 26 Also the fact that Gurr was never even shown the disciplinary action forms used by Respondent to dis- cipline employees indicates that Respondent did not intend that he exercise this authority or effectively rec- ommend employees' discipline. g. Gurr's authority to adjust employees' grievances or to effectively recommend such action Respondent's grievance procedure published in its em- ployees' personnel policies handbook states that, in perti- nent part, an employee should discuss his complaint with his or her immediate supervisor and if this fails to pro- vide a satisfctory answer should discuss it with the divi- sion director. Deneen testified that each of Respondent's coordinators are a part of the first step of the Company's grievance procedure. There is no evidence that Gurr at any time adjsuted an employee's grievance or effectively recommended such action either pursuant to the Compa- ny's grievance procedure or otherwise. Other than Den- een's conclusionary testimony set forth above, Respond- ent presented no other testimony on this matter. The ra- diology department's evening shift coordinator, Kapalc- zynski, a witness for Respondent, failed to corroborate Deneen's testimony. In addition, Deneen, who in terms of his demeanor impressed me as an insincere witness, failed to explain why if the coordinators had the authori- ty to adjust grievances that their position description failed to mention it. Based on the foregoing, I find that Respondent has failed to establish that Gurr possessed the authority to adjust employees' grievances or to effectively recom- mend such action, h. Ultimate conclusion as to whether Gurr possessed any of the statutory authority setforth in Section 2(11) of the Act As I have found supra, while employed by Respondent as senior technologist, supervisor, and coordinator in charge of the weekend shift, Gurr did not in fact exer- cise any of the indicia of statutory authority enumerated in Section 2(11) of the Act. This does not end the matter because the question is whether Gurr possessed such au- thority. Respondent urges that Gurr possessed such au- thority but chose not to exercise it. In support of this contention, Respondent points to its job description for the position of coordinator and also argues that all of the other coordinators in the department are statutory super- visors. The position of coordinator was created by Respond- ent in November 1979 during the midst of the Union's 'The reporting of employee misconduct is a matter of monitoring rather than a manifestation of supervisory authority. Greyhound Airport Services Inc. and Greyhound Airport Services Inc. of Virginia, 189 NLRB 291, 293-294 (1971). 629 DECISIONS OF NATIONAL LABOR RELATIONS BOARD organizational campaign. The job description for this po- sition, which is dated October 30, 1979, states that a co- ordinator will devote 25 percent of his or her working time to "supervision" and in pertinent part describes a coordinator's duties as follows: Under the clinical direction of a radiologist and the administrative direction of the Assistant Manager of Radiology coordinates the day-to-day operations and services a section of Radiology. Supervises the work of the technologist and an- cillary personnel assigned within the section. Recommends salary increases and performance appraisals. Recommends disciplinary action and termina- tions. Trains personnel in operations of section. Recommends scheduling of personnel. Interprets departmental and hospital rules and regulations where applicable to personnel in their section. Insures a safe working environment and enforces safety regulations in their section. Coordinates the clinical functions of a section through the Assistant Manager. Insures that the section is adequately stocked, equipment is operatable, and that all required sup- plies are available for the daily operations. Issues work orders for repairs through pre- scribed procedures. Coordinates scheduling of patients and prepa- ration of room. Insures quality of exams meet the requirements of radiologist and department. Participates in the formal teaching programs and in- service educational classes as required. Performs exams and procedures on daily basis or as required to insure service meets the demands. I am of the opinion that in the circumstances of this case the job description for the position of coordinator constituted "no more than naked designations of paper power." Oil, Chemical and Atomic Workers International Union, AFL-CIO v. N.L.R.B., supra. As the court in the Oil, Chemical and Atomic Workers International Union case stated (445 F.2d at 243), "We agree that, beyond the statements or directives themselves, what the statute re- quires is evidence of actual supervisory authority visibly translated into tangible examples demonstrating the exist- ence of such authority." In N.L.R.B. v. Security Guard Service, Inc., 384 F.2d 143, 149 (5th Cir. 1967), the court succinctly stated the essential point: What is amiss with this argument which is based on paper credentials is that there is lack of actual au- thority to match. The concept of supervision has some elasticity, but it must have substance and not be evanescent .... A supervisor may have poten- tial powers, but theoretical or paper power will not suffice. Tables of organization and job descriptions do not vest power .... In the instant case Respondent created the position of coordinator for the radiology department and reclassified certain of its supervisors in that department to this posi- tion in the midst of a union's organizational campaign when such reclassification "are often addressed as much to the Board as they are to company's pensonnel." Oil, Chemical and Atomic Workers International Union AFL- CIO v. N.L.R.B., supra. There is no evidence that the job description was ever shown to the employees in- volved and on the one occasion when the technologists asked to see a copy of the job description Department Manager Deneen stated he did not have a copy.2 7 But more significant is that Deneen at the time the coordina- tor classification was initiated informed the staff of the radiology department that the job duties of the technolo- gists who were to be reclassified as coordinators would remain the same and that the reason Respondent created the position of coordinator was to create a means to in- crease the wages of the department's senior employees who were at the top of their pay classification. Likewise Deneen, as described above, admitted to Gurr that the sole reason that Code was reclassified from supervisor to coordinator was not because he was going to be assigned additional responsibilities, but because it was the only way in which Respondent could increase Code's salary as he was at the top of the pay scale for the position of supervisor. Deneen's aforesaid explanations of why Re- spondent created the new position of coordinator and Respondent's reason for reclassifying Code to this posi- tion warrant the inference that the description of the job duties of a coordinator set forth in the job description are unreliable and constitute "no more than naked desig- nations of paper power." The record does not establish that this is a situation where all of Respondent's coordinators possessed the same inherent powers and responsibilities which would make them supervisors within the meaning of Section 2(11) of the Act, and that Gurr simply did not have the occasion to exercise these powers or chose not to do so. First, it is highly improbable that in the approximately 2- 1/2 years in which Gurr was in charge of the weekend shift that Gurr would not have exercised at least one of the statutory powers set forth in Section 2(11) of the Act if he had been in fact authorized to exercise any one of such powers. Nonetheless, other than Deneen's testimo- ny which for the most part was made up of glittering generalities couched in conclusionary language, the record contains no evidence which establishes that Gurr ever exercised on any occasion one of the statutory powers which would make him a statutory supervisor. Moreover, the record does not establish that all of the other supervisors who were promoted to coordinator were statutory supervisors. Quite the opposite, the record establishes, as I have found supra, that Coordina- tor Code was not a statutory supervisor at any time ma- "' Respondent's personnel director, Halter, testified he had no personal knowledge whether or not copies of the job description were ever dis- tributed to the coordinators. 630 ST. ALPHONSUS HOSPITAL terial to this case. Under these circumstances the fact that one or more of the other coordinators may have been statutory supervisors does not warrant a finding that Gurr must have been one also. Based on the foregoing, I am of the opinion that while numerous conclusionary allegations have been made by Respondent through the testimony of Deneen and the coordinator's printed job description attributing supervi- sory status to Gurr, the total lack of evidence of the ex- ercise of such authority, in the circumstances of this case, negates its existence. I find that Respondent has failed to establish that Gurr possessed any of the indicia of statutory authority enumerated in Section 2(11) of the Act. i. Secondary indicia of statutory authority 1. Gurr's evaluation of employees The record reveals that for the approximately 2-1/2 years when Gurr was in charge of the weekend shift as senior technologist, supervisor, and coordinator he evalu- ated those employees who worked on a regular basis: the aides, the receptionist, and a student technologist. The record also establishes that, after discussing the evalua- tion with the employee who was being evaluated, Gurr gave the evaluation to the department manager. The de- partment manager reviewed it and then give it to the as- sistant administrator who reviewed it, and it was thereaf- ter reviewed by the personnel director. The sole evi- dence in the record that Gurr's evaluations had an impact upon the employees' employment status is Den- een's testimony that he could not think of any of the rec- ommendations made by Gurr in these evaluations which were overruled. The record as a whole refutes Deneen's testimony. The only recommendations made by Gurr in these evaluations were as follows: In two instances he recommended probationary employees should be contin- ued as regular employees and on three occasions recom- mended employees be given merit wage increases for their work performance. As I have found supra, Gurr's recommendations regarding the wage increases were re- jected each time and he was told that management was not interested in whether or not he thought an employee deserved a merit wage increase. In the case of the two probationary employees there is no evidence whether management relied on his evaluation or conducted an in- dependent investigation before deciding whether to retain them as regular employees. From management's treatment of Gurr's wage increase recommendations it is a fair inference that management conducted its own in- vestigation before deciding whether or not to retain the employees as regular employees. In short, there is no evidence that as the result of Gurr's evaluations that an employee's employment status was either adversely or beneficially affected. The fact that Gurr evaluates employees does not necessarily mean that he possesses the requisite authority of a statutory su- pervisor is demonstrated by the fact that Supervisor Champion, who evaluates employees' work perfor- mances, and Coordinator Code, who also evaluates em- ployees' work performances, 28 are not, as I have found supra, supervisors within the meaning of the Act. Under these circumstances, I am not persuaded that the fact that Gurr evaluates employees' work performances by itself or in conjunction with the other record evidence herein warrants the inference that he was a statutory su- pervisor. 2. Miscellaneous When there is not enough staff present weekends either because of an unexpected increase in patients or if someone fails to come to work as scheduled, there is a list of employees on call who are called in to work. Gurr is normally the person who contacts the on-call employ- ees and asks them to come to work. If Gurr is unavail- able, i.e., working in surgery, one of the other technolo- gists on the shift takes it upon themself to contact the on- call person in these situations. Only on those rare occa- sions when the on-call persons were not available did Gurr contact other persons and ask them if they desired to come to work to help out. The Hospital has no set policy with respect to employ- ees' lunch breaks. During the weekend shift Gurr's policy was that employees could take their lunch breaks whenever the flow of patients enabled them to do so. Gurr earned between 20 percent and 22 percent more than the other staff technologists.2 He attended supervi- sory meetings with the other supervisors and coordina- tors including a management training workshop. Howev- er, Coordinator Code, who earns the same amount of money, is not a statutory supervisor and Code and Su- pervisors Champion and Benoit who are also not statu- tory supervisors attended the same or similar supervisory meetings. Gurr, like Respondent's other coordinators and super- visors, either shares an office or desk with another super- visor or coordinator. But, as I have found supra, some of the supervisors and coordinators are not statutory super- visors. Gurr is responsible for the operation of the weekend shift. He is recognized by management, by himself, and by most of the employees as being in charge of the weekend shift, and if he is not a statutory supervisor the employees who worked on this shift would have been without a statutory supervisor. Deneen testified that employees work overtime and do so with the approval of the coordinators. There is no evidence that Gurr ever authorized anyone to work overtime nor was there any evidence presented that this duty requires the exercise of independent judgment char- acteristic of statutory supervisory status. During the representation hearing the representatives of Respondent and the Union stipulated that all of the persons classified as coordinators in the radiology depart- 2" Deneen testified that all of the Respondent's coordinators, as part of their job, complete performance evaluations for the employees they su- pervise. 2 It is settled that disparity of compensation cannot be "accorded litmus paper significance in the absence of solid evidence of the posses- sion of supervisory responsibility." Oil. Chemical and Atomic Workers v N.LR. B.. supra. 631 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ment were statutory supervisors. The proceedings con- nected with this hearing were aborted when the parties entered into an election agreement and there is no evi- dence or contention that, in connection with the election agreement, the parties agreed that the coordinators in the radiology department were statutory supervisors or oth- erwise excluded them from the voting unit. I also note that, even though the stipulation rested on the parties subsidiary stipulation, the radiology department's coor- dinators had the power to hire and fire or to effectively recommend the same, there is no evidence or contention herein that Gurr had the power to fire and the evidence overwhelmingly establishes he had no involvement what- soever in the hiring process, and the one time that he did venture to make a recommendation in that area, it was rejected. In annually evaluating the performances of the radiol- ogy department's employees classified as "supervisors" and "coordinators," Respondent evaluated, among other things, their "supervisory ability." There is no indication on the face of the evaluation forms that the supervisory abilities being evaluated met the statutory requirements of Section 2(11) and, as I have found supra, Supervisors Champion and Benoit and Coordinator Code who, like Gurr, were evaluated for their "supervisory ability" were not statutory supervisors. 3. Ultimate conclusions regarding secondary indicia In concluding, supra, that Gurr did not possess any of the authority set forth in Section 2(11) of the Act I have considered the several miscellaneous secondary indicia, set forth supra, and am persuaded that whether viewed separately or together they are insufficient to support a finding of supervisory status within the meaning of Sec- tion 2(11) where, as here, there is no evidence that Gurr possessed at least one of the supervisory powers enumer- ated in Section 2(11). Under this circumstance to base a finding of supervisory status on secondary indicia would be contrary to the statute because, as the courts, with the Board's approval have instructed me, "[i]t is important for the Board not to construe supervisory status too broadly, for a worker who is deemed a supervisor loses his organizational rights." McDonnell Douglas Corp. v. N.L.R.B., 582 F.2d 1289 (9th Cir. 1981). Accord: Wes- tinghouse Electric Corporation v. N.L.R.B., 424 F.2d 1151, 1158 (7th Cir. 1970) ("The Board has a duty to employ- ees to be alert not to construe supervisory status too broadly because the employee who is deemed a supervi- sor is denied employee rights which the Act is intended to protect.") I realize that I am holding that Gurr is not a statutory supervisor even though he is admittedly re- sponsible for and in charge of the operation of the week- end shift of the diagnostic section of Respondent's X-ray department and there is no statutory supervisor present in that section during that shift. However, the absence of a statutory supervisor during Gurr's shift, while relevant to a determination of his status, is not conclusive, and is overcome in this case by the clear evidence that his au- thority was strictly of a routine nature, that the section whch was extremely dimished in size during the week- end essentially ran itself during the weekend. See, e.g., Oil, Chemical and Atomic Workers International Union, AFL-CIO v. N.LR.B., supra (Senior operators who did not exercise independent judgment not found to be statu- tory supervisors even though they were often on duty with no supervisor over them); Beth Israel Medical Center, 229 NLRB 295, 296 (1977) (found the night crew housekeeping supervisor not a statutory supervisor even though he was the only supervisor on duty from 11 p.m. until 7:30 a.m. Sunday through Thursday in charge of a crew of 48 employees); N.LR.B. v. Monroe Tube Co., 545 F.2d 1320 (2d Cir. 1976) (found night foreman not a statutory supervisor even though frequently no one of higher authority in the plant during that shift). As I have described in detail supra, it is undisputed that Gurr spend 90 percent of his worktime performing the identical work as the other rank-and-file workers employed on the weekend shift. The weekend shift employed only a maxi- mum of four technologists, three aides, and one recep- tionist and at times during the weekend there was sub- stantially fewer workers. Since the technologists were regularly employed on the weekday shifts and only worked weekends on a rotating basis, there were only approximately four employees who regularly worked the weekend shift; the three aides and one receptionist. s In- asmuch as the technologists were highly skilled workers and the aides and receptionists performed unskilled work of a routine nature, the employees on the weekend shift performed their work without the type of supervision which Section 2(11) of the Act contemplates and Gurr spent the majority of the 10 percent of his worktime that he was not doing technologists' work coordinating the flow of patients; i.e., answering questions pertaining to the scheduling and treatment of patients. Thus, it is not surprising that when Gurr took his vacation in 1979 the person who management left in charge of the weekend shift in Gurr's place was a student technologist who had only recently finished training, rather than one of its more experienced technologists or supervisory technolo- gists. Moreover, as I have found supra, for approximately the first 2 months after Gurr's termination, Respondent failed to assign a supervisor or coordinator to the week- end shift. It is for all of the foregoing reasons that I find that the record, as a whole, does not establish that Gurr was a supervisor within the meaning of Section 2(11) of the Act. C. Respondent Informs its Supervisors and Coordinators Employed in the Radiology Department that It Intended To Discharge Gurr for Voting in the Union Representation Election As described in detail supra, between July 10 and August 10, 1980, Radiology Department Manager Deneen, at a meeting attended by Assistant Manager Krogstad, Supervisors Champion and Benoit, and Coor- dinators Code and Lawson, stated that Respondent in- tended to discharge Coordinators Kapalcyznski and Gurr 0 As described supra, it was for this reason that Respondent initially told Gurr that it did not feel the weekend shift warranted a coordinator and it was only after Gurr's objection that he was reclassified as a coor- dinator 2 months after the other technologists had been reclassified to that position. 632 ST. ALPHONSUS HOSPITAL because they had voted in the union representation elec- tion despite the fact that they were told by management that as supervisors they were not eligible to vote. The complaint alleges that by Deneen's aforesaid statement Respondent violated Section 8(a)(l) of the Act. I agree. The right of an employee to vote in a union represen- tation election conducted by the Board is a right sanc- tioned by Section 7 of the Act. A statement by manage- ment to employees that another employee will be dis- charged because he or she voted in a union representa- tion election obviously has a tendency to interfere with the free exercise of the employees' statutory right to vote. I recognize that, at all times herein, Respondent was taking the position that the persons employed in its radiology department who were classified as supervisors and coordinators were statutory supervisors, and that Respondent believed that its position was correct. But, I have found supra that Champion, Benoit, Code, and Gurr were not statutory supervisors, but instead were employees entitled to the protection of Section 7 of the Act. Their rights under the Act were not subject to de- feasance merely because Respondent mistakenly believed that they were statutory supervisors. (See N.L.R.B. v. Puerto Rico Rayon Mills, Inc., 293 F.2d 941, 945-946 (Ist Cir. 1961.) s' For, "it is too well settled to brook dispute that the test of interference, restraint, and coercion under Section 8(a)(1) of the Act does not depend on an em- ployer's motive .... [r]ather, the illegality of an em- ployer's conduct is determined by whether the conduct may reasonably be said to have a tendency to interfere with the free exercise of employee rights under the Act." El Rancho Market, 235 NLRB 468, 469 (1978), and cases cited therein. It is for the foregoing reason that I find that as alleged in the complaint Respondent violated Section 8(a)(l) by telling employees that it intended to discharge another employee because he had voted in a union representation election conducted by the Board. D. Respondent Changes Gurr's Work Schedule I am of the opinion that the General Counsel has made a prima facie showing that Respondent changed Gurr's work schedule on approximately September 16, 1980, be- cause it was angered by his union activities and the fact that he voted in the union representation election and be- lieved that he had disregarded Respondent's instruction to cease those activities. In reaching this conclusion I considered the following circumstances in their totality. In August 1979 when Respondent learned that Gurr was an organizer for the Union, the manager of Gurr's department, Fred Deneen, warned him that his job would be in jeopardy if he did not cease his union activi- ties because management considered him to be a supervi- sor. Gurr indicated he did not believe he was a supervi- sor, but shortly thereafter advised Deneen he would cease his union activities as Deneen had requested. But Deneen did not believe Gurr, for in January 1980 Deneen told Gurr that the reason Gurr was not promot- ed to the newly created position of coordinator was that S' Accord: N.LR.B. v. Cast-A-Stone Products Co, 479 F.2d 396, 397 (4th Cir. 1973); Answengn Inc., 215 NLRB 688, 689 (1974). Deneen and Deneen's superior, Assistant Administrator Anton, still thought Gurr was involved with the Union because he had been seen talking with union sympathiz- ers and Gurr's wife was seen distributing union litera- ture. When Gurr denied he was still supporting the Union, he was promoted at this time to the position of coordinator. Thereafter, in May 1980, on his own time, Gurr attended the representation hearing connected with the Union's petition for a representation election where he was seen by management, and on July 10, 1980, in violation of Respondent's instruction that persons classi- fied as supervisors and coordinators were not eligible to vote in the union representation election, Gurr voted in the election. The undenied and credible testimony of ra- diologist James Mack establishes that at this point in time Deneen still believed that Gurr was engaging in proun- ion activities. Mack testified that sometime during the period between June 22 and July 12, 1980, Deneen in- formed him that since Gurr was a supervisor or an ad- ministrator Gurr should not talk about the Union or be "as actively involved in union activity as he was, "and indicated to Mack that he thought Gurr's family was also involved in activity on behalf of the Union. After the July 10, 1980, union representation election Deneen also informed Mack that Deneen thought Gurr had "in- fluenced" Coordinator Kapalczynski to vote in the elec- tion. It is undisputed that on July 10, 1980, Deneen became angry when he learned Gurr had voted in the union rep- resentation election held that day and, with the concur- rence of Assistant Administrator Anton, decided to dis- charge him for voting in the election. Respondent's lawyer persuaded Deneen and Anton to let the matter rest for I month so as to allow a cooling off period. During the 1-month cooling off period Deneen did not change his mind about discharging Gurr, as is evidenced by his statement made during this period to several of the supervisors and coordinators in the department that he intended to fire Gurr for voting in the union election. At the end of the cooling off period, on approximately August 10, 1980, Respondent's lawyer recommended that Deneen and Anton not carry out their decision to fire Gurr because such a discharge would subject Respond- ent to litigation and hurt the morale of the other employ- ees. Deneen and Anton accepted this recommendation, but approximately I month later Deneen changed Gurr's work schedule from the weekend shift to the weekday day shift. Deneen knew that such a change of work schedule would seriously inconvenience Gurr, who oper- ated his own business during the weekdays. Shortly after Deneen told Gurr about the change in his work schedule, Deneen admitted to several of the su- pervisors in Gurr's department that in changing Gurr's work schedule Respondent's intent was to punish Gurr on "account of the union," but that they should tell the rest of the staff that the reason for Gurr's reassignment from the weekend shift to the weekday day shift was that the patient load on weekends was decreasing where- as it was increasing during the weekdays. The record, as summarized above, establishes that Gurr was one of the organizers of the Union's campaign 633 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to organize Respondent's employees. Respondent was hostile towards Gurr because of his union acitivities, threatened to discharge him if he continued to support the Union, and thereafter refused to believe that Gurr had discontinued his union activities. It was in this con- text that Respondent, upon learning that Gurr had voted in the union representation election, immediately decided to discharge him, but did not implement this decision when its attorney recommended against it. Instead Re- spondent, shortly thereafter, changed Gurr's work sched- ule from the weekend shift to the weekday day shift knowing that such a change would cause a significant hardship to Gurr because he operated his own business during the week. Respondent, in explaining the reason to the supervisors in Gurr's department for its decision to change Gurr's workshift admitted to them that the change was not prompted by any legitimate business considerations, but by a desire to punish Gurr on ac- count of his union activities. These circumstances, viewed in their totality, make out a prima facie showing that Respondent changed Gurr's work schedule because it was angered by its union activities and thought he had disregarded its instruction to cease these activities or, at the very least, because Gurr had voted in the union rep- resentation election. 3 2 Having concluded supra that the General Counsel has made a prima facie showing that Gurr's protected con- duct was a motivating factor in Respondent's decision to change his work schedule, I shall evaluate Respondent's reasons for changing his work schedule. In doing so I have used the Board's Wright Line analysis wherein "once [a prima facie showing] is established, the burden will shift to the employer to demonstrate that the same action would have taken place even in the absence of the protected conduct." Wright Line, a Division of Wright Line, Inc., 251 NLRB 1083, 1089 (1980).33 It is undisputed that the reason given Gurr by Depart- ment Manager Deneen for Gurr's reassignment from the weekend to the weekday day shift was that the Hospital needed Gurr to work the weekday day shift because there was a "staffing need" in the radiology department on that shift. This was consistent with Deneen's instruc- tion to the department's supervisors that they should tell the staff that Gurr was reassigned because the patient load on the weekday day shifts was increasing. It was 11 I realize Respondent did not discriminate against Coordinator Ka- palczynski who, with Gurr, voted in the election and who Respondent had also decided to discharge for voting. This does not detract from the conclusion that Respondent discriminated against Gurr, for the law is set- tled that the failure to discriminate against all persons who engage in ac- tivity protected by the Act does not negate evidence of discriminatory motive. See NL.R.B. v. Challenge-Cook Brothers of Ohio, Inc., 374 F.2d 147, 152 (6th Cir. 1967); N.L.R.B. v. Puerto Rico Telephone Company, 357 F.2d 919, 920 (Ist Cir. 1966); Nachman Corp. v. N.LR.B., 337 F.2d 421, 424 (7th Cir. 1964); N.L.R.B. v. W C Nabors, d/b/a W. C. Nabors Com- pany, 196 F.2d 272, 276 (5th Cir. 1952). This principle is especially appli- cable in the instant case because Respondent, at all times material, be- lieved Gurr was a leading union adherent and believed he was the person who persuaded Kapalczynski to vote in the union election Other than casting his ballot in the election Kapalczynski engaged in no activity pro- tected by the Act, including union activity, nor is there evidence Re- spondent thought he was a union supporter. 3" The burden referred to is merely the burden of going forward to meet a prima facie case, not the burden of persuasion on the ultimate issue of the existence of a violation. also consistent with the testimony of Deneen's immediate superior, Assistant Administrator Anton, that Gurr's reassignment was the result of a staffing study which showed that more "manpower" was needed during the weekdays and not much "manpower" was needed during the weekends. In short, Respondent ostensibly reassigned Gurr to the weekday day shift because it needed another technologist on that shift. But, it is undisputed that when Gurr was terminated another technologist was not hired or tranferred to fill Gurr's position on the weekday day shift. This unexplained omission refutes Anton's testimo- ny that Respondent needed more manpower on the day shift.3 4 The inference that Respondent did not need more manpower on the day shift at the time of Gurr's reas- signment is warranted not only by Respondent's failure to fill the vacant position on the day shift left by Gurr's termination, but also by the fact that, with the elimina- tion of Gur's position on the weekend shift, it has meant that the staff on the day shift now worked weekends every 3 rather than 4 weeks, leaving even less manpower available on the day shift than prior to Gurr's reassign- ment. Despite this, the position Gurr was reassigned to on days still has not been filled. It is for all of the forego- ing reasons, including my feeling that Deneen and Anton, in terms of demeanor, were not credible wit- nesses, that I find that Respondent's contention that it reassigned Gurr to the day shift because it needed more manpower on that shift is a fabrication, entirely without substance. Deneen testified that there was a second reason for Gurr's change of work schedules; Deneen's conclusion that the nature of the weekend shift insofar as it required Gurr to work two consecutive days of 16 hours a day made it impossible for Gurr "to remain sharp" and that Deneen had heard rumors that Gurr slept during work- ing hours. It is true that Gurr did "nap" occasionally during working hours when there was no work, but it is also true that when Gurr assumed his weekend assignment that he was authorized to do this by Deneen's predeces- sor. Gurr credibly testified that after Deneen assumed the position of department manager that Gurr continued his practice of taking an occasional nap, that he did this in Deneen's presence, and that Deneen said nothing about this to him.35 There is absolutely no evidence or contention that management had any complaints about Gurr's work performance during his approximately 3 years of work on the weekend shift. Quite the opposite, it is undisputed that Gurr's performance was regarded as outstanding by management as well as by the radiologists and emergency room physicians who depended on Gurr's work. In short, the whole record reveals no con- cern by management about the length of Gurr's work- day. This is not surprising because Gurr, did in fact stay "sharp" during the weekend shift as is evidenced by his " No explanation was offered by either Deneen or Anton for Respond- ent's failure to replace Gurr on the weekday day shift. s5 I reject Deneen's testimony that he merely heard rumors about Gurr's sleeping. In terms of demeanor, Gurr, whose testimony I have credited on this subject, impressed me as a more credible witness than Deneen. 634 ST. ALPHONSUS HOSPITAL exemplary work record, and Deneen knew this. Also I note that, in notifying Gurr about the change in his work schedule, Deneen significantly failed to mention Gurr's long hours as a justification for the reassignment. The foregoing circumstances, plus my observation that Deneen in terms of demeanor was not a trustworthy wit- ness, have persuaded me to reject Deneen's testimony that one of the reasons which led him to reassign Gurr was Deneen's conclusion that Gurr was working too many consecutive hours on the weekend shift. I find that this reason was a fabrication. Respondent urges that the record establishes that Gurr would have been reassigned to the day shift even absent his protected activity because the decision to reassign him was made prior to the time he voted in the union representation election and was a part of other changes made by the Hospital as the result of a productivity study. With respect to its timing, Anton and Deneen testified that the decision to reassign Gurr was made in the summer of 1980, with Deneen setting the date as June 1980, but was delayed until after the election upon the advice of Respondent's lawyer. In terms of their demea- nor neither Anton nor Deneen impressed me as trustwor- thy witnesses when they gave this testimony. Moreover, their testimony is impugned by the record as a whole which indicates that as early as January 1980 Respond- ent's management was refusing to promote Gurr to the position of coordinator because it thought he was still supporting the Union and Respondent was using as one of its excuses the fact that Respondent thought it might have to change Gurr's workshift. Specifically, it is undis- puted that in late 1979 and early 1980 when Gurr com- plained to Deneen about management's failure to pro- mote him to the newly created position of coordinator, and grant him the $100-a-month pay raise that went with it, that Deneen, on three separate occasions, gave Gurr completely different reasons for the Hospital's refusal to promote him. At their first meeting Gurr was told that he had not been promoted because he did not supervise the same people every weekend; at their next meeting Gurr was told he had not been promoted because the Hospital might have to eliminate his weekend position and move him to days; and at their third meeting Gurr was told that he had not been promoted because manage- ment thought he was still supporting the Union, rather than management. Gurr at this time swore he was no longer supporting the Union and was then promoted to the position of coordinator. Considering the context in which management first mentioned to Gurr that he might be transferred from his weekend shift, the infer- ence is warranted that Respondent's preelection decision to change Gurr's work schedule was simply a fabrication to deny Gurr promotion because Respondent thought he was still engaging in union activities. This bolsters the in- ference that Respondent's postelection decision to change Gurr's workshift was likewise a fabrication de- signed to punish Gurr because Respondent still thought he was a union supporter. With respect to Respondent's contention that the change in Gurr's work schedule was a part of other work schedule changes made pursuant to a productivity study, the record reveals that the work schedules of technologists O'Connor and Hammond were changed at the same time as Gurr's. It is undisputed, however, that the change of O'Connor's and Hammond's schedules was completely unrelated to Gurr's. Their reassignment was not dependent on Gurr's reassignment or vice versa. Under the circumstances, the fact that Respondent chose to reschedule Hammond and O'Connor does not warrant the inference that the rescheduling of Gurr would have also taken place absent his union activities. For the reasons set forth above, I am of the opinion that Respondent has failed to meet its burden of rebut- ting the General Counsel's prima facie case. Based on the foregoing, I find that the General Coun- sel has proven, by a preponderance of the evidence, that Respondent reassigned Gurr from the weekend to the weekday day shift because of his union activities and be- cause he voted in the union representation election con- ducted by the Board. E. Gurr's Discharge I am persuaded that the General Counsel has estab- lished a prima facie case that Respondent on September 23, 1980, discharged Gurr because of his union activities and because he voted in the union representation elec- tion. This conclusion is based on the following consider- ations in their totality. Respondent immediately before discharging Gurr, as I have found supra, violated Section 8(a)(3) and (1) of the Act by reassigning Gurr from the weekend shift to the weekday day shift because of his union activities and be- cause he voted in the union representation election. The discharge took place shortly after Respondent, acting on the advice of its lawyer, had decided not to carry out its decision to discharge Gurr for voting in the union representation election. When Department Manager Deneen notified Gurr and the rest of the department's staff that Gurr was being ter- minated he prefaced his remarks with the statement that Gurr had been asking to be discharged "for a long time." Viewed in context this could only have been a reference to Gurr's voting in the union representation election de- spite Respondent's instruction not to vote and to Re- spondent's belief that Gurr had continued to support the Union despite its instruction that he cease his union ac- tivities. Thus, it is undisputed that Gurr, whose work performance was highly regarded by management, had an unblemished employment record. The sole evidence of any complaint by management about Gurr relates to his voting in the union representation election and to management's belief that he had not obeyed its instruc- tion to refrain from engaging in activities on behalf of the Union. Also significant in evaluating Respondent's motivation in discharging Gurr is the undisputed fact that, where as Deneen on the day of the discharge told Gurr he was discharging him because he had failed to follow the Company's established grievance procedure, Deneen on the same day informed technologist Wandro that Gurr had been discharged for refusing to work on the day shift. Deneen, who did not deny that he gave completely 635 DECISIONS OF NATIONAL LABOR RELATIONS BOARD different reasons to Gurr and Wandro for Gurr's dis- charge, did not explain this inconsistency. The aforesaid considerations, in their totality, persuade me that the General Counsel has established a prima facie case that Respondent discharged Gurr on September 23, 1980, because of his union activities and because he voted in the union representation election. I shall now evaluate the reason relied on by Respond- ent for discharging Gurr. This reason is set out in Gurr's September 23, 1980, termination slip, signed by Deneen and Anton, which, in the section reserved for a detailed explanation of the reason of reasons for a discharge, states that Gurr was discharged because: "[Gurr] failed to follow established grievance procedure." I shall scruti- nize this reason in the light of the whole record. Respondent's published grievance procedure as applied to Gurr provides for Gurr to take his grievance to De- partment Manager Deneen, then to Assistant Administra- tor Anton, then to Personnel Director Halter, and, if it is still not resolved, to the Hospital's administrator. Gurr did not comply with this procedure when he grieved about his reassignment from the weekend to the weekday day shift. Rather than discuss his grievance with Assist- ant Administrator Anton, after failing to resolve it by talking to Deneen, Gurr went to the radiologists and emergency room doctors and sought to resolve his griev- ance by having them speak on his behalf to management. Without question Respondent has established a legitimate nondiscriminatory reason to discipline Gurr. But this does not end the matter, for the question to be decided is whether the record, as a whole, demonstrates that Re- spundent during the normal course of business would or would not have discharged Gurr for engaging in this misconduct even absent its antagonism against him for voting in the union representation election and engaging in activity on behalf of the Union. I am of the opinion that the record demonstrates Respondent would not have discharged Gurr during its normal course of business. This opinion is based on the following considerations. In the past Respondent condoned Gurr's failure to comply with the Hospital's established grievance proce- dure. In August 1979 when Gurr thought Deneen had acted improperly in directing him to cease his union ac- tivities because he was a supervisor, Gurr took his griev- ance directly to the administrator of the Hospital and, in December 1979, in connection with his grievance about not being promoted to coordinator, Gurr, after grieving to Deneen next took his grievance to Assistant Manager Krogstad, rather than to Assistant Administrator Anton, and next went to Personnel Director Halter rather than to Anton. In neither instance did management discipline or even criticize Gurr for not following the established grievance procedure. As a matter of fact, in connection with Gurr's grievance about the change of his work schedule, Deneen directed Gurr to speak to Personnel Director Halter about his grievance, rather than to Anton, as provided for by the grievance procedure. 36 "e Gurr, in less than a week, made two unsuccessful attempts to speak to Halter about his grievance and his messages to Halter in this respect went unanswered. It was only after he had been unsuccessful in his effort to speak to Halter that Gurr spoke to the physicians about his grievance. Gurr, who had been employed by Respondent for 4- 1/4 years and was regarded as an outstanding employee was punished by the imposition of the most severe penal- ty available to Respondent. This, despite the fact that other than the criticism because of his union activities, Gurr was never criticized or disciplined by management for anything. Nor is there evidence that other employees were discharged for not following Respondent's griev- ance procedure. Of course the choice of discipline is the sole prerogative of management, and it is not my func- tion to second guess management, but the law is settled that the imposition of the ultimate form of discipline upon a long-term valued employee for a first offense cer- tainly is relevant evidence which must be considered in determining whether an employer would have normally discharged an employee absent the employee's protected activity. American Thread Company v. N.L.R.B., 631 F.2d 316 (4th Cir. 1980). The penalty of discharge was imposed upon Gurr in complete disregard and in contravention of Respondent's progressive disciplinary system. Respondent's personnel director, Halter, testified that Respondent has a progres- sive disciplinary procedure whereby: There must be one disciplinary action on file for any termination before one can be terminated for other than cause such as, say drunkenness, theft, or drug use, or this type of thing-but for any other type of thing that involves counseling . . . a disci- plinary action is required, and that is a form signed by the employee, and states the conditions of basi- cally some type of probationary period. Respondent's personnel handbook distributed to the em- ployees in the section entitled "Disciplinary Action" states, [a]s a general rule, an employee will not be dis- charged . . . unless at least one disciplinary action record is on file for a previous offense," except for cer- tain enumerated "gross violation of conduct" which it lists as follows: A. Unsatisfactory reference B. Incompetence C. Irregular attendance or excessive absenteeism D. Repeated failure to report an accident E. Gross neglect of duty F. Insubordination G. Unprofessional traits H. Dishonesty I. Disorderly conduct J. Falsification of time records K. Soliciting or accepting tips L. Willful destruction of hospital property M. Intoxication or bringing intoxicating beverage on premises N. Habits or state of health dangerous to the worker, coworkers, or the patients. O. Falsification of employment application P. Drug abuse or addiction Gurr's conduct of taking his grievance about his changed work schedule to the physicians with whom he worked, instead of complying with Respondent's griev- 636 ST. ALPHONSUS HOSPITAL ance procedure does not even remotely resemble any of the "gross violation of conduct" listed in the Hospital's handbook which warrant immediate dismissal. It is clear- ly the type of misconduct which Personnel Director Halter testified Respondent normally handles by first counseling the employee and issuing a disciplinary action slip. Neither Halter, Anton, nor Deneen explained why Respondent in Gurr's case deviated from its usual system of progressive discipline. 37 The foregoing circumstances-Respondent's condona- tion of Gurr's past failure to comply with the Company's grievance procedure, the severity of Gurr's punishment, and the fact that Gurr's punishment violated Respond- ent's progressive disciplinary system-persuade me that Respondent seized upon Gurr's failure to use the Hospi- tal's grievance procedure as a pretext to discharge him and that Gurr ordinarily would not have been dis- charged during the normal course of business for this act of misconduct. Respondent, in its post-hearing brief urges that Gurr was fired not only for failing to abide by the Hospital's established grievance procedure, but also because he fal- sely alarmed the Hospital's doctors about the confidence of the radiology department's staff during weekends. Ini- tially I note that the termination slip issued to Gurr on the date of the discharge simply stated Gurr was dis- charged because he failed to follow the Hospital's estab- lished grievance procedure. It did not refer directly or indirectly to the nature of Gurr's conversations with the doctors. Nor did Deneen or Anton testify that the nature of Gurr's comments to the doctors played a part in the decision to discharge him. In any event, Gurr's state- ments to the doctors that he felt the radiology depart- ment would not be able to provide the same service during weekends without him stems from a situation which Respondent itself created by virtue of its unfair labor practices. Respondent's illegal action of changing Gurr's work schedule from the weekend to the weekday day shift in violation of Section 8(a)3) and (1) of the Act was, by its very nature, the kind of conduct calculated to provoke Gurr's sense of indignation and his temper. It was natural for Gurr to speak to the doctors who worked with him in an effort to have Respondent re- scind its illegal action and, under the circumstances, his remarks were not unreasonable. It is plain that but for Respondent's unlawful alteration of Gurr's work sched- ule, the conduct attributable to Gurr and relied on by Respondent to discharge him would never have oc- curred. While I do not condone Gurr's statement to the doctors it would be inequitable to allow Respondent to rely on this conduct in order to justify his discharge, par- ticularly since his conduct was not sufficiently egregious so as to ordinarily deny an employee the protection of the Act and would not have occurred but for Respond- ent's unfair labor practices. Cf. Louisiana Council No. 17, AFSCME, AFL-CIO, 250 NLRB 880, 889 (1980); Max Factor & Co., 239 NLRB 804, 818-819 (1978). Based on the foregoing I am of the view that the Gen- eral Counsel has proven by a preponderance of the evi- " There is no evidence that Respondent normally deviates from its progressive disciplinary system. dence that Respondent discharged Gurr because it thought he had disregarded its instruction not to support the Union and because he had disregarded its instruction not to vote in the union representation election, thereby violating Section 8(a)(1) and (3) of the Act. 38 Upon the foregoing findings of fact and the entire record, I make the following: CONCLUSIONS OF LAW 1. Respondent, St. Alphonsus Hospital, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union, Office and Professional Employees In- ternational Union, Local No. 196, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. Michael Gurr is not a supervisor within the meaning of Section 2(11) of the Act. 4. By informing employees that it intended to dis- charge Gurr for voting in a union representation elec- tion, Respondent violated Section 8(a)(1) of the Act. 5. By changing Gurr's work schedule from the week- end shift to the weekday day shift on September 16, 1980, and by discharging him on September 23, 1980, be- cause of his union activities and because he voted in a union representation election, Respondent violated Sec- tion 8(aX)(1) and (3) of the Act. THE REMEDY Having found that Respondent, in violation of the Act, transfered Michael Gurr from the weekend shift to the weekday day shift and thereafter discharged him, I shall recommend that Respondent offer him immediate and full reinstatement to the position of coordinator on the weekend shift in the radiology department, or, if that po- sition no longer exists, to a substantially equivalent posi- tion, without prejudice to his seniority and other rights and privileges and make him whole for any loss of earn- ings he may have suffered by reason of such unlawful conduct, by payment of a sum of maney equal to that which he normally would have earned as wages from the date of discharge to the date of said offer of rein- statement, less net earnings during said period, with backpay computed on a quarterly basis in the manner es- tablished by the Board in F. W Woolworth Company, 90 NLRB 289 (1950), together with interest thereon com- puted in the manner prescribed in Florida Steel Corpora- tion, 231 NLRB 651 (1977).?' Additionally, Respondent shall expunge from its employment records all references to Gurr's discharge. " The fact that in changing Gurr's work schedule and in discharging him for his union activities and/or for voting in the union representation election, Respondent mistakenly believed he was a statutory supervisor is no defense because Gurr's rights under the Act to support the Union and vote in the representation election were not subject to defesance merely because Respondent mistakenly believed he was a statutory supervisor. N.L.R.B. v. Puerto Rico Mills Rayon, Inc., supra; Orr Iron, Inc., 207 NLRB 863 (1973), enfd. 508 F.2d 1305 (7th Cir. 1975); Montgomery Ward & Co., Incorporated, 198 NLRB 52 (1972). 39 See, generally, Isis Plumbing d Heating Company, 136 NLRB 716 (1962). 637 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the foregoing 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: ORDER 40 The Respondent, St. Alphonsus Hospital, Boise, Idaho, its officers, agents, successors, and assigns, shall: i. Cease and desist from: (a) Discharging, changing the work schedules, or oth- erwise discriminating against employees for supporting or engaging in activities on behalf of Office and Profes- sional Employees International Union, Local No. 196, AFL-CIO, or any other labor organization, or for voting in a union representation election conducted by the Na- tional Labor Relations Board. (b) Threatening employees with discharge if they vote in a union representation election conducted by the Na- tional Labor Relations Board. (c) In any like or related manner interfering with, re- straining, or coercing employes in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Immediately offer to Michael Gurr full reinstate- ment to his former position as coordinator on the week- end shift in the radiology department or, if that position no longer exists, to a substantially equivalent position without prejudice to his seniority or any other rights and privileges previously enjoyed, and make him whole for any loss of earnings or other benefits suffered as a result of the discrimination against him, in the manner set forth i. the section of this Decision entitled "The Remedy." (b) Expunge from its records all references to Michael Gurr's discharge. (c) Post at its facility in Boise, Idaho, copies of the at- tached notice marked "Appendix."4 ' Copies of the said notice on forms provided by the Regional Director for Region 19, after being duly signed by Respondent's rep- resentative, shall be posted by Respondent immediately upon receipt thereof and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, including all places where notices to employees are customarily 40 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. 4i In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or cov- ered by any other material. (d) Notify the Regional Director for Region 19, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discharge, change the work sched- ules, or otherwise discriminate against employees for supporting or engaging in activities on behalf of Office and Professional Employees International Union, Local No. 196, AFL-CIO, or any other labor organization, or for voting in a union repre- sentation election conducted by the National Labor Relations Board. WE WILL NOT threaten employees with discharge if they vote in a union representation election con- ducted by the National Labor Relations Board. WE WILL NOT in any like or related manner in- terfere wth, restrain, or coerce employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. WE WILL immediately offer to Michael Gurr full reinstatement to the position of coordinator on the weekend shift in the radiology department, or, if that position no longer exists, to a substantially equivalent job, without prejudice to his seniority or other rights and privileges previously enjoyed; and WE WILL make him whole for any loss of earnings or benefits, with interest, and expunge all references to his discharge from our employment records. ST. ALPHONSUS HOSPITAL 638