Western Health Clinics

400 305 NLRB No. 39 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1 The Respondent has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule and ad- ministrative law judge’s credibility resolution unless the clear pre- ponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. In the absence of exceptions we adopt, pro forma, the judge’s findings that the challenges to the ballots cast by Peggy Johnson and Pat James be overruled. 2 In rejecting the Respondent’s exceptions to the judge’s findings that certain interrogations of employees Decker and James violated Sec. 8(a)(1) of the Act, we rely on the totality of circumstances sur- rounding the interrogations. See Sunnyvale Medical Clinic, 277 NLRB 1217 (1985) (indicia of coercion include inquiries about other employees’ union activities and context of employer hostility to Union). 1 All dates are in 1990 unless stated otherwise. 2 The General Counsel did not file a brief. Western Health Clinics and Service Employees International Union, Local No. 49, AFL–CIO. Cases 36–CA–6339 and 36–RC–5233 October 10, 1991 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS DEVANEY AND RAUDABAUGH On June 12, 1991, Administrative Law Judge James S. Jenson issued the attached decision. The Respondent filed exceptions and a supporting brief. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions and brief and has de- cided to affirm the judge’s rulings, findings,1 and con- clusions2 and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge and orders that the Respondent, Western Health Clinics, Portland and Salem, Oregon, its officers, agents, suc- cessors, and assigns, shall take the action set forth in the Order. IT IS FURTHER ORDERED that the Regional Director for Region 36 shall, within 10 days from the date of this Decision and Order, open and count the ballots of Nancy Schneider, Judy Decker, Peggy Johnson, and Pat James, and prepare and serve on the parties a re- vised tally of ballots. Thereafter, the Regional Director shall issue the appropriate certification. Dale Cubbison, Esq., for the General Counsel. Rick Quintero, Ph.D, and Mintra Sharma, of San Pedro, California, for the Respondent. Rick Ball, of Portland, Oregon, for the Union. DECISION STATEMENT OF THE CASE JAMES S. JENSON, Administrative Law Judge. I heard these matters in Portland, Oregon, on June 26 and 27, 1990.1 The charge in Case 36–CA–6339 was filed on April 9, amended on April 13, and the complaint issued on May 25. On the latter date, the Acting Regional Director for Region 19 also issued a report and recommendation on challenged ballot and notice of hearing on remaining challenged ballots in Case 36–RC–5233, and also an order consolidating the two cases for hearing. The complaint alleges a variety of conduct vio- lating Section 8(a)(1) of the Act, and that Respondent termi- nated employees Nancy Schneider and Judy Decker in viola- tion of Section 8(a)(3) of the Act. The Respondent denies it committed any unfair labor practices, and claims that Schnei- der was terminated for cause and Decker laid off for non- discriminatory reasons and later recalled. The ballots of Schneider, Decker, Peggy Johnson, and Pat James were chal- lenged by the Employer in the election held on May 4, on the ground they were no longer employees. All parties were given full opportunity to appear, to intro- duce evidence, examine and cross-examine witnesses, to argue orally and to file briefs. The General Counsel and Re- spondent argued orally and the Respondent also filed a brief, all of which have been carefully considered.2 On the entire record in the matters, and from my observa- tion of the witnesses and their demeanor, I make the fol- lowing FINDINGS OF FACT I. JURISDICTION Western Health Clinics, a California corporation with its principal office located in Harbor City, California, and with facilities located in Portland and Salem, Oregon, is a health care institution engaged in providing medical and psycho- logical services to substance abusers. During the year pre- ceding issuance of the complaint, its gross volume of busi- ness exceeded $500,000 and it purchased and received goods and materials within the State of Oregon valued in excess of $50,000 directly from sources outside Oregon, or from sup- pliers in Oregon which in turn obtained such goods and ma- terials directly from sources outside Oregon. As the fore- going complaint allegations are neither specifically denied nor explained, in accordance with Section 102.20 of the Board’s Rules and Regulations, it is found that the Respond- ent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and a health care institution within the meaning of Section 2(14) of the Act. II. THE LABOR ORGANIZATION INVOLVED In accordance with Section 102.20 of the Board’s Rules and Regulations, it is further found that Service Employees International Union, Local No. 49, AFL–CIO is a labor orga- nization within the meaning of Section 2(5) of the Act. 401 WESTERN HEALTH CLINICS 3 Respondent apparently operates other clinics not involved in this proceeding. 4 The unit specified in the stipulated election agreement in Case 36–RC–5233 and herein found appropriate as alleged in par. 5 of the complaint consists of: All employees, including Front Office Managers, Nurse Coun- selors, Dispensing Nurses, Counselors, Part-Time Front Office, employed by the Employer at its facilities in the Portland Metro- politan area and the Salem, Oregon area; but excluding all client Services Managers, Medical Services Coordinator, RN’s, Doc- tors, Regional Director, Administrator, Office Manager Coordi- nator, Executive Director, professional employees, guards and supervisors as defined in the Act. III. THE ISSUES The complaint alleges in substance: (1) That Mintra Sharma, Respondent’s administrator, inter- rogated employees, threatened them with discipline and un- employment if they continued to engage in concerted activi- ties, ordered them to write her letters concerning their union sympathies, created the impression of surveillance, and ques- tioned employees as to how they would vote in a union elec- tion. (2) That Rick Quintero, Respondent’s executive director, ordered closer scrutiny of an employee in retaliation for her union activities, interrogated employees concerning their union activities, questioned them how they would vote and threatened more onerous conditions if they selected the Union as their bargaining agent, promised them benefits if they rejected the Union, and threatened them with discharge in retaliation for their union activities. (3) That Calvin Hightower, Respondent’s executive direc- tor, promised employees benefits if they rejected the Union, threatened them with unemployment if they selected the Union, and through Office Manager Coordinator Kathy Wheeland, threatened to shut down or sell Respondent’s clin- ics before it would negotiate with a union. (4) That Respondent instituted new disciplinary procedures in retaliation for its employees’ union activities. (5) That Respondent discharged Nancy Schneider and Judy Decker because they supported the Union and engaged in concerted activities. A resolution of the 8(a)(3) allegations will dispose of the issues regarding the challenged ballots of Nancy Schneider and Judy Decker, leaving for independent consideration the challenges to the ballots of Peggy Johnson and Pat James. Credibility, as in virtually all 8(a)(1) and (3) cases, is a critical issue, the record revealing considerable conflict be- tween the General Counsel’s and Respondent’s witnesses. In determining whose testimony is the more credible, I have considered several factors including the demeanor of the wit- nesses as they were testifying, their ability to recall past events, the consistency or inconsistency of their testimony when it is considered in the context of other testimony, docu- mentary evidence, and matters not in dispute. In considering the conflicts in the testimony of witnesses, I have considered which version appears to be more logical in the cir- cumstances, the various positions occupied by the witnesses and their possible bias and/or interest in the outcome. With regard to the ability of a witness to recall past events, con- sideration has been given to whether the witness’ answers to certain questions were in response to suggestive or leading questions asked on direct examination. (See F.R.Evid. 611(c).) Further, to the extent I credit a witness only in part, I do so upon the evidentiary rule that it is not uncommon ‘‘to believe some and not all of a witness’ testimony.’’ NLRB v. Universal Camera Corp., 179 F.2d 749, 754 (2d Cir. 1950). IV. THE ALLEGED UNFAIR LABOR PRACTICES A. The Setting The Respondent operates three methadone clinics in Port- land and one in Salem, Oregon.3 Mintra Sharma, whose of- fice is in Harbor City, California, is the administrator for all of the clinics. She is in charge of the receivables, payables, payroll, and makes all contractual arrangements for the clin- ics. As she physically visits them but two, three, or four times a year, she relies to a great extent on the front office managers.4 Dr. Rick Quintero, Mintra Sharma’s husband, is Respondent’s executive director. He described his function as being ‘‘certain that the clinics are operating in compliance with applicable federal regulations, state regulations, that the quality of the services are at a level which is therapeutic and that the clients are being treated fairly and well and to be certain as much as possible that all job functions are per- forming well.’’ Calvin Hightower is Respondent’s regional director. He visits each of the clinics at least once a week. One of his functions is to review the ‘‘owing list’’ (a listing of the amount each client is required to pay for treatment) with the office manager every week and to approve or dis- approve arrangements made for payment, including recom- mending to the medical director placing the client on a detox program for nonpayment. In addition to a salary, he receives a specified amount per client per month. Thus, it is seen that it behooves him to see that client fees are paid. Christy Wheeland is the office manager coordinator and works in the Southeast Portland clinic. Paula Forbes is client services manager, dispenser coordinator, and medical service coordi- nator. She is also a counsellor at the Beaverton clinic. Each of the foregoing is alleged to be and is a supervisor of Re- spondent within the meaning of Section 2(11) of the Act and its agent within the meaning of Section 2(13) of the Act. Sandra Freeland is the client services manager at the South- east clinic. While her status as a supervisor or agent was not alleged, the client service managers are specifically excluded from the election unit. She impressed me as being evasive throughout the General Counsel’s cross-examination. Since May 1990, Wendy Kidder has been administrative assistant in the Northeast Portland clinic. From the description of her duties prior to that, it appears she had been a front office manager. Her unit inclusion or exclusion was not established. All of the foregoing testified for the Respondent. Testifying on behalf of the General Counsel were Nancy Schneider, an alleged discriminatee who was the office man- ager in the Salem clinic; Judy Decker, also an alleged discriminatee, who was hired to do audit work, later changed to quality control, and also filled in as office manager in the Southeast clinic in Christy Wheeland’s absence; Kathy James who, until her termination on April 13, was the nurse dis- penser and counsellor at the Beaverton and Northeast clinics, and also the wife of Pat James, also testifying, who worked every other weekend in April and May as receptionist at the Beaverton clinic and whose ballot was challenged by the Re- 402 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 5 Employees at the Southeast clinic signed a copy of Schneider’s response after the original had been sent to Sharma. spondent in the election; Kathy Buck, a nurse counsellor at the Southeast clinic; Gloria Hernandez, the dispensary nurse at the Salem clinic; Judy Ellis, an LPN and counsellor in the Salem clinic; Peggy Johnson, a dispensary nurse at the Southeast clinic whose ballot was challenged by Respondent on the ground she was no longer an employee but whom Re- spondent now claims was a supervisor; and Jay Lawshe, a client services manager (a supervisory position) and nurse counsellor who testified on rebuttal pursuant to subpoena. B. Concerted Activities Sometime in the fall of 1989, Hightower told employees in the Salem clinic that he had negotiated with Sharma and Dr. Quintero for pay for the Thanksgiving and Christmas holidays for the employees, and that he was working on other holidays. At a staff meeting in November before Thanksgiving, the employees asked Dr. Quintero if it was true that they were going to be paid for Thanksgiving, and he responded in the negative and that a staff meeting wasn’t the appropriate place to bring up the issue. He advised them to get something together and submit it to him in writing for consideration. Accordingly, Schneider typed up a benefit package which Wheeland, the office manager coordinator in the Southeast clinic in Portland, heard about, and sent her a copy at her request. Wheeland told Hightower and Freeland about it and after showing it to employees in all the Portland clinics, who concurred in its contents, returned it to Schnei- der. Schneider retyped the document, and on January 23 mailed it to Sharma. The document, Respondent’s Exhibit 5, to ‘‘Mintra Sharma, Rick Quintero, Calvin Hightower’’ from ‘‘ALL WESTERN HEALTH STAFF,’’ is attached hereto as Appendix A. On Thursday, January 25, Hightower met with the Salem clinic employees regarding the document. Schnei- der testified that during discussion of ways of getting Sharma to negotiate with them, unionization, a strike and contacting the media regarding Respondent’s business practices were mentioned. Hightower asked the employees to ‘‘hold off’’ since he was trying to negotiate with Sharma and Dr. Quintero and stated ‘‘they would rather see them closed than see a union come in.’’ Without eliciting details of the con- versation, Hightower admitted he had discussed closing the Salem clinic because he didn’t think Respondent was ‘‘that tied into Oregon.’’ He claimed he was merely rendering an opinion. While claiming he had no knowledge of employee union activity until the instant charge was filed in April, he admitted on cross-examination that he may have had a con- versation with Sharma about employees going to the Union prior to the charge being filed. I believe he did and that from at least January 25, the Respondent had knowledge of union activity in addition to the benefit package letter which in itself was a protected concerted activity. Coming from some- one in Hightower’s position, telling employees that the Re- spondent would rather close than see a union come in clearly restrains and coerces employees and violates Section 8(a)(1) of the Act, as alleged in paragraph 6 of the complaint. On Saturday, January 27, Sharma called Schneider at home. Ac- cording to Schneider, whom I credit, the call lasted about half an hour. She testified as follows regarding the conversa- tion: Well, she [Sharma] said that she was very upset about my letter, and I explained to her that it was not my letter but an all-staff memo and explained to her the process that we had gone through, that it had been sent to other clinics, that there were other staff involved be- sides myself, and that once we had all agreed on what we wanted, then it was sent to her, and she said that she had talked with other staff, and that they were— they didn’t want anything to do with it. They denied any knowledge of ever seeing it, and that they didn’t want to go along with it and didn’t want any part of it. I asked her what staff she had talked to, and she evaded the question, didn’t tell me who she’d talked to, so I have no idea who she talked to. We went on and discussed the people that were in- volved. I think I brought up Cristy’s name, that she had presented it to staff up in Portland and that they had seen it, and she continued throughout the whole con- versation to refer to the memo as my letter, my prob- lem, my benefits, you know. During the conversation, you know, she was saying that she was upset, and she had been up till three in the morning writing a response letter to me, and that I would be getting that shortly in the mail, but she wanted to discuss it with me person- ally. She said in that response she had said that she would not be giving any benefits, that there would be nothing forthcoming, and, you know, that was the end [of] it, that there would be nothing. She also told me in that conversation that in Cali- fornia she had had trouble with her clinic. I believe it was the Harbor City Clinic where the staff were really upset about benefits, and she had fired everybody with- in that clinic and brought in a registry, and that they worked for about a month, and then everything smoothed out and everything was wonderful again, that she did not owe people anything, that she was not mak- ing them work for her, and that if they didn’t like what Western Health had to offer, they were free to go work somewhere else. The implied threat to terminate the employees involved in the benefit package violates Section 8(a)(1) as alleged in paragraph 7(a) of the complaint. On Monday, January 29, Schneider talked to Wheeland in the Southeast clinic by phone. According to Schneider, whom I credit, Wheeland predicted that the employees would be fired because of the memo. Schneider said she didn’t think so and that she was going to send Sharma another let- ter since Sharma insisted the January 23 ‘‘benefit package’’ was from Schneider alone instead of the rest of the staff. Sharma responded to the January 23 letter with General Counsel’s Exhibit 3 which is dated January 26, addressed to Schneider ‘‘Re: Your letter dated January 23, 1990,’’ and at- tached hereto as Appendix B. Schneider responded with Gen- eral Counsel’s Exhibit 4 which is dated February 9, and at- tached hereto as Appendix C.5 The final paragraph is particu- larly noteworthy and bears repeating here: Your response indicates you are unwilling to even consider a better benefit package for your employees now or in the immediate future. You state ‘‘no changes will occur immediately or in the near future.’’ I submit 403 WESTERN HEALTH CLINICS 6 Hightower admitted he cautioned her repeatedly about being a spokesperson for the staff and that he told her ‘‘If you’re going to be involved in what your being involved in, make sure you cover your ass and you’re doing your work.’’ 7 Schneider’s testimony was not refuted and is credited. 8 Beginning on p. 24 of the transcript. to you the very real possibility that changes will indeed occur at Western Health Services in the effect that staff are so frustrated with management’s lack of under- standing of their need for better benefits and the unwill- ingness on your part to address these issues that their only alternative is to seek help from an outside source to act as mediator on their behalf. Please understand staff at ‘‘all’’ of Western Health Services are behind this proposal and your lack of an All Staff response has been noted by them. I am requesting you send such a memo addressed to each staff person or at least a memo to each clinic to clearly inform them of your position in this matter. The record shows that, in late January, Schneider con- tacted a representative of the Oregon Public Employees Union, to which she had formerly belonged, and in February she contacted a representative of the Charging Union, from whom she obtained authorization cards which she passed out to Salem clinic personnel and mailed to an employee of the Southeast clinic in Portland for distribution among the em- ployees of the clinics there. Schneider signed a card on Feb- ruary 13. At 7 a.m., February 16, Schneider received a telephone call at the Salem clinic from Sharma accusing her of being behind in her ‘‘owing list’’ and stating that Hightower didn’t have any idea that so many people were behind in their pay- ments. Schneider responded she couldn’t understand High- tower making that statement since she sat down with him every week and went through the ‘‘owing list.’’ She re- minded Sharma of a conversation in January following an audit Sharma had done which showed that a lot of people had fallen behind in payments because of Christmas holidays throughout the whole Western Health system and that they were to ‘‘work with them until they caught up.’’ Schneider testified that some of the people had been behind for months, some longer than she had worked there and that she would ‘‘detox’’ them if Sharma wanted her to. Sharma’s response was no, because they wouldn’t recover their money if the people were ‘‘detoxed,’’ or put off the program. Contrary to her initial statement that she didn’t want to talk about the benefit package, Sharma said she didn’t understand how the employees could be asking for more benefits when they weren’t doing their jobs, and proceeded to criticize the work of all of the Salem employees. She accused Schneider of bothering employees both at home and at work regarding the ‘‘benefit package,’’ which Schneider denied. Sharma also questioned her about an employee meeting scheduled for the following Saturday, asking if the Union was going to be present and stating it was ‘‘inappropriate’’ for them to meet without either her or Dr. Quintero being present. Schneider responded that it was ‘‘still up in the air’’ whether a union representative would attend, and that the employees just wanted to meet and discuss what they wanted, to which Sharma responded it was still inappropriate to meet without her. Hightower was standing nearby during the latter part of the conversation. Upon its completion, Schneider told him Sharma said he hadn’t seen her ‘‘owing list’’ and he re- sponded he didn’t know where she got that from. They dis- cussed the meeting scheduled for February 24, and he asked who would be there, which she declined to tell. She testified he told her that he had seen employees involved in that type of activity before, and that if she was a spokesperson for the staff that she needed to watch her back because she might not be able to work in ‘‘this field’’ again because of her ac- tivity, ‘‘you need to be very careful, because I don’t want to lose my best employee in the system.’’6 The two then went through Schneider’s ‘‘owing list’’ and Hightower com- mented that while her payment arrangements were different than in other clinics, he let her do things differently because she was more qualified than the other office managers. It is clear that Hightower did not berate her over the condition of the owing list on February 16. C. Schneider’s Termination The record shows that an ad appeared in the Salem news- paper on Sunday, February 18, for an office manager for the Salem clinic. Schneider testified without contradiction that the deadline for placing the ad would have been 3 p.m. on Friday, February 16, the day the above conversations with Sharma and Hightower took place. Thus, it is clear the deci- sion to terminate her was made prior to Hightower’s check- ing the owing list on that date. On Monday, February 19, Schneider was called into an of- fice by Dr. Quintero and told that she was terminated be- cause of her ‘‘owing list.’’ Asked how that could be since her ‘‘owing list’’ had been approved by Hightower on a weekly basis ‘‘and if that was the case, why wasn’t Calvin [Hightower] the one who was getting his check. It was his responsibility to insure that I was doing my job, that they had never said that I was doing it inappropriately,’’ Dr. Quintero responded ‘‘it was over my owing list, that that was the way it was.’’7 Dr. Quintero admitted on cross-examina- tion, however, that he hadn’t seen her February owing list prior to deciding to terminate her. She testified that High- tower had told her and several other employees that nobody could be fired without his approval, and ‘‘unless I’m telling you you’re doing a bad job, don’t worry about it.’’ High- tower testified he didn’t recommend her discharge. He ac- knowledged that he was in a position to observe her work more than anyone else and that he had told Schneider and the other employees that she was his best office manager. The record shows that at the time she was terminated Schnei- der’s ‘‘owing list’’ totaled about $8700. Wheeland, who is a supervisor and testified as a witness for Respondent, ac- knowledged on cross-examination that her owing list at the Southeast clinic was $8500 at the time Schneider was termi- nated and that at the beginning of the month it could be be- tween $10,000 and $12,000. She claimed it should be down to about $5000 on the 20th of the month. It became apparent during Schneider’s cross-examination that Respondent was claiming Schneider was also deficient in respects other than her owing list. In response to my ques- tion, Sharma enumerated the following additional reasons for her termination:8 1. Failure to adhere to administrative policies that she had agreed to, specifically ‘‘her continued defiance to enter pa- 404 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 9 Sharma claimed she granted the raise out of the ‘‘goodness of my heart.’’ 10 The meeting had originally been scheduled for Decker’s house, but after Schneider’s discharge was changed to a restaurant. tients into contracts to pay fees, inconsistent with the late fee policy.’’ 2. Contracting with outside vendors without administrative approval (involving service on a copy machine). 3. Continually making problems with the landlord resulting in an eviction notice due to her verbal abuse. 4. Failure to maintain documents, e.g., the urinalysis track- ing list, phone log, stamp log, copy paper log, the time schedule for herself and other employees. 5. Continued unexcused absences. 6. Causing stress on other employees by leaving the job place and asking other employees to take her place in an- swering the telephones and collecting fees. 7. Becoming belligerent with Sharma on the phone on February 16 and stating she had no intention of imple- menting any of Respondent’s administrative policies. 8. Not maintaining the office properly, leaving files unat- tended on top of filing cabinets, inability to file and docu- ment things, and failure to send items to corporate office for audit purposes. 9. Causing problems in the office so that Respondent was unable to collect and pay bills timely. 10. Inconsistent with collections, playing favoritism to cer- tain clients, doing counseling when it wasn’t her job. 11. Filed a workman’s compensation claim for an old in- jury Sharma didn’t know about. Sharma claimed that Schneider’s work deficiencies started in August 1989, from which time on she was not a good em- ployee. She testified that while they had considered termi- nating Schneider by the end of December 1989, or by the first or second of January, the decision to do so was not made until February 12 or 13. In an effort to prove that Schneider was an undesirable employee, it was shown that Schneider had written a per- sonal check which bounced which she had apparently cashed with company funds in her possession. Schneider testified without contradiction that she made the check good and re- imbursed Respondent for the bank’s returned check charge. This incident apparently prompted issuance of a June 7, 1989 memorandum to the staff that utilizing company funds to cash checks would be grounds for immediate dismissal. There is no evidence to indicate Schneider ever did it again. Respondent claimed that an undated invoice for mainte- nance on a copy machine, Respondent’s Exhibit 2, which was signed by Schneider, upon completion of the work, con- stituted a contract to service the machine and extended the lease for another 6 months and that Schneider thereby ex- ceeded her authority. The original lease agreement was exe- cuted by Sharma and is in Respondent’s possession. Its pro- duction would have cleared up any question regarding main- tenance and term of the agreement. Respondent’s failure to produce it leads me to conclude its production would not have been favorable to its argument. In any event, the amount to be paid on the invoice, $152.78, was for the num- ber of copies that had been used and was not a contractual commitment by Schneider as claimed. Appearing at the bot- tom of Respondent’s Exhibit 2 is a typed note to Schneider dated February 15, admonishing her for entering into an agreement on behalf of Respondent. Schneider testified that she never saw the note prior to the hearing. I credit her de- nial. Having carefully examined the invoice and the testi- mony concerning the copy machine, it seems apparent to me that Sharma added this self-serving note in an apparent effort to give credence to Respondent’s argument, which I find unpersuasive. Sharma’s testimony regarding Schneider’s other claimed work deficiencies was also unpersuasive. The record shows that Hightower, who visited the Salem clinic twice a week and who reviewed Schneider’s work regularly, considered Schneider to be Respondent’s best office man- ager, a viewpoint which he shared with other employees. It wasn’t his idea to terminate her. He testified she was a very dedicated employee, putting in more working hours than any- one else and that she was not paid for overtime in excess of 40 hours or for working on Saturday. Further, the record shows that in August 1989, Schneider received a 50-cent-an- hour wage increase, and in November she and Sharma agreed on an additional pay raise of 25 cents per hour plus medical and dental insurance for which Respondent was to pay 100 percent of the premium. A disagreement apparently later arose in January over the effective date of the insur- ance, January 1 or February 1, and since Schneider’s hus- band has just secured a position with benefits covering Schneider, she and Sharma negotiated a 50-cent-per-hour raise in lieu of the insurance.9 Granting the raises severely undercuts Sharma’s claim that she had been dissatisfied with Schneider since mid-1989. D. Decker’s ‘‘Layoff’’ Decker was hired November 13, 1989, to do dispensing and clinical auditing and intake in each of the clinics. Dr. Quintero testified that he ‘‘wanted an agent . . . who was not a clinical person to audit . . . a tunnel vision person who . . . would make sure that each nurse put the correct date in the right place with the right numbers adding up to have a reconciliation of this liquid medication that we have to track.’’ She was to go to each of the Portland clinics twice a week and to Salem once a week. On Sunday, March 25, she received a call at home from Dr. Quintero who stated he would have to let her go since he couldn’t see paying for a full-time auditor and stating there might be a job open in the Beaverton clinic; depending on whether another em- ployee who was on short hours but wanted long hours, con- tinued. While that job did not materialize, Decker later filled in at the Southeast clinic for Wheeland, who was out sick. About a month prior to the instant hearing, she started work- ing two 6-hour days per week in the Northeast clinic. Decker, who impressed me with her forthrightness, testi- fied that at the end of February, while she was filling in for Wheeland at the Southeast clinic, she received a telephone call from Sharma who stated she had heard Decker was the union instigator in the Southeast clinic, which Decker denied, and that a meeting was going to be held at Decker’s house and asked why she and Dr. Quintero had not been invited. The record shows the petition in Case 36–RC–5233 was filed on February 28. Decker responded that it was a meeting for the employees to air things out and the employees didn’t feel they could talk openly before her and her husband.10 Sharma also asked what she thought about the Union and if she would vote for it. According to Decker, she told Sharma it 405 WESTERN HEALTH CLINICS was none of her business and didn’t want to discuss it. Deck- er testified that about this time, while working at the South- east clinic, Dr. Quintero asked what she thought about the Union and how she was going to vote, which she declined to talk about and told him she didn’t appreciate Sharma call- ing and accusing her of being the union instigator when she wasn’t. He responded Sharma was just fishing around to get information. According to Decker, 3 days later Sharma called again and stated she hadn’t meant to upset her, but they didn’t want the Union and wanted to stop it. Decker re- sponded she didn’t like being accused of something she didn’t do. Sharma told Decker to let her know if she heard anything. Sharma, whom I found to be lacking in credibility, denied ever speaking to Decker ‘‘about her union involve- ment.’’ I find that the conversations in fact took place as Decker testified and that Sharma thereby created the impres- sion of surveillance of union activities, and unlawfully ques- tioned Decker about union activities and how she would vote, all as alleged in paragraph 7(c) of the complaint. Decker testified that a few days later Sharma called again and told her that she should only be working 6 instead of 8 hours a day. Decker responded that she had been hired to work full time and that she had a paper so stating which bore both Dr. Quintero’s and Hightower’s signatures. Her hours were not reduced at that time. In early March, Dr. Quintero visited the Salem clinic and talked to her and employee Tomoko Gersch. She testified: [H]e asked if we knew anything about the rumor going around that he was going to sell or close down the clinics if the union got in, and I told him, yes, I heard it from Cristy Wheeland, the office manager-co- ordinator, and he wanted to tell me that it wasn’t true and that he never said that. I told him I didn’t think so, because that was where his money was coming from, and he smiled, and then he asked me again about the union, and I told him I didn’t want to talk about it. Wheeland testified that she had received a phone call from Hightower who was ‘‘obviously distraught,’’ informing her that Dr. Quintero ‘‘had indicated that he would just as soon sell the clinics or see them closed down than to see them . . . go union,’’ and that she should tell the other employees, which she did. Wheeland’s testimony corroborates that of Decker and Kathy Buck. Hightower called her back later and told her to be careful how she handled it and it wasn’t in- tended as a threat but that he felt the employees should be aware of it. A couple of weeks prior to her termination on March 31, Dr. Quintero again asked Decker if she had heard anything about the Union and how she would vote, which she de- clined to talk about, and stated that ‘‘if the Union got in, our little happy family would no longer exist.’’ The General Counsel has proven paragraph 8(b) of the complaint. The foregoing events cast a dark cloud over the reason Re- spondent claims Decker was ‘‘laid off’’ or terminated. Dr. Quintero testified she had been hired because he wanted someone ‘‘who was not a clinical person to audit . . . a tun- nel vision person.’’ to make sure the nurses’ records were accurate, and to monitor both the Salem and Portland clinics. As the reason for letting her go, however, he ‘‘wanted nurs- ing personnel who were involved in that function on a daily basis to do the audits in order to improve the quality of the audits.’’ Discussion Section 7 of the Act guarantees employees ‘‘the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing and to engage in other concerted activities for the purpose of collective bargaining.’’ (Emphasis added.) Section 8(a)(1) implements those guarantees by making it an unfair labor practice for an employer ‘‘to interfere with, restrain or coerce employees in the exercise of the rights guaranteed in Section 7.’’ Section 8(a)(3) makes it an unfair labor practice for an employer ‘‘by discrimination in regard to hire or ten- ure of employment . . . discourage membership in any labor organization.’’ Whether the discharge of an employee is un- lawful depends on the employer’s motive, and since an em- ployer will rarely concede that a discharge was prompted by a discriminatory motive, the Board may infer an unlawful motive from circumstantial evidence. Relevant circumstantial evidence supporting an inference of unlawful motivation in- cludes the failure of an employer’s testimony to withstand scrutiny. Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466 (9th Cir. 1966). Such is the case here. While the Respondent contends it did not have knowledge of any union activity until the charge was filed, the record evidence set forth above convinces me otherwise. But even if the Respondent had in fact lacked knowledge of union in- volvement, it was clearly aware through the January 23 ben- efit package and the February 9 response to Sharma’s Janu- ary 26 letter that the employees had acted together—in con- cert—‘‘for the purpose of collective bargaining or other mu- tual aid or protection.’’ Acting in concert for the improve- ment of their working conditions prior to the advent of the Union was as protected by the Act as their later union activ- ity. The Respondent fails to perceive, it appears, that pro- tected concerted activity does not necessarily include union involvement. As found, Respondent had knowledge of employees’ in- volvement in bettering their working conditions by January 25, and that unionization, a strike, and contact with the media were options which could be taken if Respondent re- fused to cooperate. The record further shows that High- tower’s response to their action was to say that Respondent would rather close than see a union come in. On January 27, Sharma attributed the origin of the benefit package to Schneider and impliedly threatened to terminate everyone in- volved as she had done at the Harbor City clinic. On January 29, Wheeland told Schneider that she thought the employees would be fired because of the benefit package. Following Sharma’s January 26 response to the first benefit package proposal to the effect that ‘‘no changes would occur,’’ Schneider responded on February 9, concluding with the statement that the ‘‘only alternative is to seek help from an outside source.’’ Schneider contacted the Charging Union, signed an authorization card and distributed others. In a tele- phone call on February 16, Sharma accused Schneider of being behind in her ‘‘owing list,’’ and criticized the work of all of the Salem employees and stated she didn’t understand how they could be asking for more benefits, and accused Schneider of bothering employees at home regarding the ben- efit package. Sharma also questioned her about an employee 406 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD meeting scheduled the following Saturday and stated it was inappropriate for them to meet without her and her husband. Hightower also questioned Schneider about the upcoming meeting and cautioned her to be careful because he didn’t want to lose his best employee. To reemphasize, this con- versation occurred on February 16, 3 days prior to her dis- charge. On the same day, Respondent placed an ad in news- papers to fill Schneider’s position as office manager in Salem. On February 19, she was terminated, ostensibly be- cause she was behind in her ‘‘owing list.’’ The record shows that at the time of her discharge, Wheeland’s owing list was within $200 of Schneider’s. It is further clear that Hightower had gone over her owing list on Friday, February 16, and failed to criticize her for its condition. It is further admitted that Dr. Quintero hadn’t seen the list prior to terminating her. Hightower admitted he had told Schneider and other employ- ees that she was his best office manager, and his testimony attempting to back off from that position was feeble as were Sharma’s attempts to portray her as a poor employee com- mencing in August 1989. The quality of her work is better characterized by Hightower’s testimony that she was a very dedicated employee who put in more working hours than anyone else, including overtime and Saturday work for which she was not paid. The record makes it clear that her dedica- tion and superior work were rewarded with raises in August 1989, when Sharma claimed her work deficiencies com- menced, and again after the first of the year. In sum, I con- clude and find that the reasons advanced by Respondent are pretextual and that the real reason for Schneider’s discharge was her engagement in protected concerted activities as al- leged in paragraph 14 of the complaint. The petition in Case 36–RC–5233 was filed on February 28, 9 days following Schneider’s unlawful termination. With knowledge that the meeting was to be held at Decker’s house, Sharma called Decker and accused her of being the union instigator in the Southeast clinic, questioned why she and her husband hadn’t been invited, and queried Decker about the Union and her voter preference. Dr. Quintero also asked her about her union feelings and voter preference. Within a few days Sharma called her again and stated Re- spondent didn’t want the Union and wanted to stop it, and asked Decker to let her know if she heard anything. Wheeland had spread the word that Respondent was going to sell or close down if the Union got in. A couple of weeks prior to her termination, Dr. Quintero again questioned her about the Union and how she would vote, to which she de- clined to respond. Dr. Quintero indicated ‘‘our little happy family would no longer exist’’ if the Union got in. Thus, it is seen that at the time of her termination on March 31, Schneider, the spokesperson for the employees, had been un- lawfully terminated for engaging in protected concerted ac- tivities, the Union had filed a petition for an election, Sharma had learned about a union meeting to be held at Decker’s house and had questioned her about it and protested the fact Sharma and her husband hadn’t been invited, both Sharma and Dr. Quintero had asked how she would vote and that she declined to say. Inasmuch as she declined to inform Re- spondent that she would vote against the Union, it was prob- able that Respondent concluded she was still a union sup- porter and would vote for it. Thus, when she was terminated, and presumably rendered ineligible to vote in the forth- coming election, Respondent had rid itself of two known union sympathizers. In this regard, it is noted that the Stipu- lated Election Agreement had already been signed by Re- spondent and approved by the Regional Director on March 30. Her later re-employment following the filing of the charge in Case 36–CA–6339, was, in my view, meant to add legitimacy to the ‘‘layoff’’ claim. I conclude, as in Schnei- der’s case, that the reason Respondent gave for Dexter’s ‘‘layoff’’ was pretextual and that the real reason was its be- lief that she was going to vote for the Union. Accordingly, Respondent violated the Act as alleged in paragraph 14 of the complaint. E. Other 8(a)(1) Allegations Paragraph 7(b) of the complaint alleges that on or about March 1, Sharma ordered employees to write her letters con- cerning their union sympathies and desires. Judy Ellis, an LPN and counsellor in the Salem clinic testified that in late March, Sally Sidaway, who succeeded Schneider as the of- fice manager in the Salem clinic, told Gloria Hernandez, Tomoko Gersch, and Jay Lawshe, who is the client services manager and nurse counsellor, that Sharma had requested that they write her a letter stating their feelings about the Union. Her testimony was corroborated by Hernandez. Gersch was not a witness, and while Lawshe was a witness for the General Counsel on rebuttal, no questions were asked of her regarding the conversation. Sidaway was not a wit- ness, nor was it shown she was either a supervisor or agent of Respondent. Sharma testified that Sidaway had told her over the telephone 1 day that things were chaotic with people asking her what was going on with the Union, and that she told Sidaway to: Just have them call me directly, or they can call the union rep or whoever they want to, but they cannot ask you or discuss union activities at work. At that time she says well, what do I do when they come to me and ask me these things, what Western Health is doing about it, and I said well, they can write to me their concerns and mail it to me, or they can telephonically communicate with me, and that was where it was left with Sally Sidaway. The General Counsel has failed to prove by a preponder- ance of the evidence the allegation in paragraph 7(b) of the complaint. Paragraph 8(a) alleges that on or about February 19, Dr. Quintero ordered closer scrutiny of Kathy Buck’s work in re- taliation for her union activities. Buck was a nurse counsellor in the Southeast clinic. She testified that she signed an au- thorization card about February 20 and tried to get others to sign them. Decker testified that on February 19, she received a telephone call at the Southeast clinic from Dr. Quintero in Salem wherein he asked her to audit Buck’s files. She told him that she had already audited them and he told her to do it again, that it was top secret and he didn’t want anyone to know what she was doing. Accordingly, she audited 12 of Buck’s charts and left the results on Hightower’s desk. Based on this evidence it is concluded the General Counsel has failed to prove by a preponderance of the evidence the alle- gation in paragraph 8(a) of the complaint. Paragraph 8(c) alleges that on or about March 28, Dr. Quintero interrogated employees and promised them benefits if they rejected the Union. Buck testified that on Wednesday, 407 WESTERN HEALTH CLINICS 11 Ellis testified that on the day before the May 4 election, Dr. Quintero was in the Salem clinic and stated ‘‘[Y]ou’re going to vote against the union, aren’t you,’’ and went on to state ‘‘We have this benefit package for you if you don’t vote for the union. We’re work- ing on it.’’ March 28, a weekly team meeting was held at the Southeast clinic with Dr. Quintero, Hightower, and Wheeland. During the meeting, according to Buck, Dr. Quintero asked what the union dues were and what they expected from the Union. Buck responded that he wasn’t supposed to be discussing the Union with the employees, and Hightower stated that they needed to talk to Dr. Quintero and that was the reason he was there. After that, several employees spoke and Buck told him that after Sharma’s letter saying there would be no bene- fits now or in the future, that the employees knew they need- ed outside help. Wheeland told him that Sharma had asked the employees to write down why they wanted the Union and what they expected from it. According to Buck, Dr. Quintero ‘‘said that he had a package, but he could not tell us about it right now, because . . . of the union.11 While Respondent contends Dr. Quintero’s statements were protected as free speech under Section 8(c) of the Act, they were not denied. Contrary to Respondent, it is found that Dr. Quintero en- gaged in unlawful interrogation and impliedly promised em- ployees unspecified benefits if they rejected the Union, all as alleged in paragraph 8(c) of the complaint. Paragraph 9(a) of the complaint alleges that on or about March 21, Hightower promised employees benefits if they rejected the Union and threatened them with unemployment if they selected the Union. Buck testified without contradic- tion that during a conversation on March 21, Hightower asked why the employees hadn’t come to him if they wanted benefits and that ‘‘the clinic could run without us, that if we didn’t really like it here we could move on, that they could hire [an] agency to dispense, and the clients could see a counselor every 30 to 90 days. He said I know that you’re professional and you deserve pay, but the corporation was really quite small and couldn’t afford it . . . maybe he could get some [benefits] for us, that we should . . . work with him.’’ She responded that he had been there 3 years and hadn’t gotten anything for the employees, to which he re- plied ‘‘[P]eople come and go, and that’s just the way it would be.’’ The General Counsel has proven paragraph 9(a) of the complaint. Paragraph 9(b) alleges that on or about March 23, Hightower threatened employees, through Wheeland, to shut down or sell its clinics before it would ne- gotiate with a union. Asked if she had ever told Decker and Buck that the clinic would be closed, Wheeland testified: One afternoon I received a phone call from Calvin Hightower. He was at the Salem Clinic, and he was ob- viously distraught. He informed me that he had re- ceived a phone call—that he had conversed with Dr. Quintero, and that he had indicated that he would just as soon sell the clinics or see them closed down than to see them go—or to close them down than to see them go union, . . . and that I should let the other em- ployees know this . . . [which] I did. She testified Hightower called her back ‘‘and said you’ve got to be careful how you handle this. It’s not intended to be a threat. It’s simply information that I feel that the employees should be aware of.’’ The General Counsel has proven para- graph 9(b) of the complaint. Paragraph 10(a) alleges that on or about March 29, Dr. Quintero interrogated employees concerning their union ac- tivity, and paragraph 10(b) alleges that on or about March 31, he threatened employees with discharge (to clean house) in retaliation for their union activities. Kathy James testified that on Friday, March 30, Dr. Quintero came into her office and, knowing she had worked at Kaiser and been represented by the Union, stated he was interested in what she could tell him about the Union and asked how she was going to vote. She stated she would vote against the Union. On Saturday morning, March 31, Dr. Quintero came to the Southeast clin- ic and talked to Kathy James and her husband, Pat, who was working as receptionist. She testified that as Dr. Quintero left the building he stated that ‘‘if they went union, he’d clean house again, or that he had cleaned house, and he would do it again.’’ Her husband confirmed the fact they talked ‘‘about unions in general’’ and that he would probably vote against the Union, but that he didn’t remember Dr. Quintero relating cleaning house with union problems. Kathy James’ testimony is credited. The General Counsel has proven paragraphs 10(a) and (b) of the complaint. Paragraph 11 of the complaint alleges that in late March, Respondent instituted new disciplinary procedures in retalia- tion for its employees’ union activities. The General Counsel has failed to point to any testimony supporting this allega- tion. I recommend its dismissal. Paragraph 12 alleges that on April 2, Forbes interrogated employees concerning their and other employees’ union ac- tivities. Kathy James testified without contradiction that in early April she expressed frustration over her shortened work hours to Forbes and that she didn’t like the way things were going and might change her vote. There had been a union meeting the previous Saturday. Forbes asked who had at- tended and stated that James shouldn’t tell anyone about the conversation or she could get in trouble about it. James told her who had attended that she knew. The General Counsel has proven paragraph 12 of the complaint. Paragraph 13 alleges that on or about April 2, Dr. Quintero interrogated employees regarding their union activi- ties. Kathy James testified that she received a telephone call from Dr. Quintero that morning, and while she didn’t recall how the subject came up, they discussed the union meeting held the previous Saturday. She explained it had been a bad experience for her because she had been called a ‘‘snitch’’ which made her uncomfortable. She did not testify that he asked her about the Union. The General Counsel has not proven paragraph 13 of the complaint. To recap my findings, the General Counsel has proven the following complaint allegations: Paragraphs 6, 7(a), 7(c), 8(b), 8(c), 9(a), 9(b), 10(a), 10(b), 12, and 14. He has failed to prove the following allegations: Para- graphs 7(b), 8(a), 11, and 13. V. CHALLENGED BALLOTS The ballots of Schneider, Decker, Peggy Johnson, and Pat James were challenged by the Employer on the ground they were no longer employees. Having found that Schneider and Decker were unlawfully terminated, I find that they were eligible voters and that their 408 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 12 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and rec- ommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all purposes. votes should be counted. Accordingly, I recommend the chal- lenges to their ballots be overruled. The Respondent contends Peggy Johnson is a supervisor. Johnson is an LPN, as are a number of the unit employees. She was hired as the dispensing nurse by Sharon Deavers, the dispensary coordinator, to work in the Northeast clinic, and later transferred to the Southeast clinic. The classifica- tion of dispensing nurse is included in the unit description. While she testified she trained new nurses, no one else works under her in the dispensary. Diane Jacobs and Kathy Buck, LPNs included in the unit, work in the dispensary every third Saturday and Jacobs also works there some every Wednes- day. Johnson is directly responsible to Hightower and to Paula Forbes who succeeded Deavers as dispensary coordi- nator. She has worked in Forbes’ place when Forbes was ill. When hired, she was told her basic job was to dispense methadone and keep records on it and maybe someday she could work into doing some counseling. Counselors are also included in the unit description. On one occasion she re- ported to Hightower her concern over some things Jacobs was doing and was told to write her up. Forbes showed her how to do it. She and Hightower later met with Jacobs con- cerning the problems outlined in the document, and both she and Jacobs signed the writeup at Hightower’s request. She lacks authority to hire, fire, or discipline fellow employees. Section 2(11) of the Act defines ‘‘supervisor’’ as: any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, pro- mote, discharge, assign, reward, or discipline other em- ployees, 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 of a merely routine or clerical nature, but requires the use of independent judgment. Except for the time she worked in Forbes’ place when Forbes was ill, it appears that her work is routine and does not require the use of independent judgment such as would require a finding that she is a supervisor. With respect to re- placing Forbes when she was ill, the duration nor her actual authority during that time were shown. It is well settled, however, that filling in as a supervisor on a sporadic or ir- regular basis is insufficient to warrant a conclusion that an employee is a supervisor. See, e.g., Canonsburg General Hospital Assn., 244 NLRB 899 (1979). Accordingly, I find that Peggy Johnson was not a supervisor and recommend that the challenge to her ballot be overruled. The name of Pat James was challenged by the Board agent since his name did not appear on the election eligibility list. The Employer contended he was no longer an employee. Testimony regarding James was less than meager. To be eli- gible to vote in a Board election, an employee must be em- ployed in the appropriate unit on both the payroll eligibility date, here on March 30, and the date of the election, here on May 4. James was hired by Hightower as a receptionist on March 3 and quit on May 19. He worked 3 hours a day every other weekend, or six times for a total of 18 hours. Thus, he was employed as a part-time employee during the critical period. It is noted further that the classification of ‘‘Part-Time Front Office’’ is included in the description of the unit agreed to by the parties and approved by the Re- gional Director. Upon the foregoing, it is found that he was employed on the critical dates and was an eligible voter. I recommend that the challenge to his ballot be overruled. To recap, I find that all four challenged voters were eligi- ble to vote and recommend the challenges to their ballots be overruled. REMEDY Having found that Respondent has engaged in certain un- fair labor practices, I shall recommend that it cease and de- sist therefrom and take certain affirmative action designed to effectuate the policies of the Act. I shall recommend that Re- spondent offer Nancy Schneider and Judy Decker immediate and full reinstatement to their former jobs, dismissing if nec- essary any replacements, or if those jobs no longer exist, to substantially equivalent jobs, without prejudice to their se- niority and other rights and privileges, and make each of them whole for any loss of earnings they may have suffered by reason of Respondent’s discrimination against them, by payment of a sum of money equal to that which they nor- mally would have earned as wages or benefits from the date of their discharges to the dates of the respective offers of full reinstatement, less net earnings during such period, to be computed in the manner prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest in accordance with New Horizons for the Retarded, 283 NLRB 1173 (1987). I shall also recommend that Respondent remove from its records any reference to the unlawful discharges and shall provide each of the discriminatees with written notice of such re- moval and inform each that the discharges will not be used as a basis for further personnel actions concerning them. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and a health care institution within the meaning of Section 2(14) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By implying they would receive benefits if employees rejected the Union, by creating the impression of surveillance of their union activities, by interrogating employees, by threatening to discipline them, by threatening to discharge them, by threatening more onerous conditions of employ- ment, by threatening them with unemployment, and by threatening to close down or sell its operations because they engaged in union and concerted activities protected by the Act, Respondent violated Section 8(a)(1) of the Act. 4. By discharging Nancy Schneider and Judy Decker be- cause they engaged in union and other protected concerted activities, Respondent violated Section 8(a)(1) and (3) of the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommended12 409 WESTERN HEALTH CLINICS 13 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading ‘‘Posted by Order of the National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.’’ ORDER The Respondent, Western Health Clinics, Salem, Oregon, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Discharging or in any other manner discriminating against its employees because they have engaged in union or other protected concerted activities. (b) Implying benefits to employees if they rejected the Union; creating the impression that Respondent is keeping their union or other concerted activities under surveillance; interrogating employees, threatening to discipline or dis- charge them, threatening to close down or sell the operations; threatening more onerous working conditions; and threat- ening them with unemployment because they engaged in union and/or concerted activities protected by the Act. (c) In any like or related manner interfering with, restrain- ing, or coercing its employees in the exercise of the rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action necessary to ef- fectuate the policies of the Act. (a) Offer Nancy Schneider and Judy Decker immediate and full reinstatement to their former jobs or, if they no longer exist, to substantially equivalent jobs, without preju- dice to their seniority or other rights and privileges, dis- missing, if necessary, any employees hired as replacements and make them whole for any loss of earnings in the manner set forth in the remedy section of the decision. (b) Remove from its files any reference to the unlawful discharges and notify Nancy Schneider and Judy Decker in writing that this has been done and that the terminations will not be used against them in any way. (c) Preserve and make, on request, available to the Board and its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to ana- lyze and determine the amount of backpay due under the terms of this Order. (d) Post at its Portland and Salem clinics copies of the at- tached notice marked ‘‘Appendix D.’’13 Copies of the notice, on forms provided by the Regional Director for Region 19, after being signed by the Respondent’s authorized representa- tive, shall be posted by the Respondent immediately upon re- ceipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, de- faced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps Respondent has taken to comply. IT IS RECOMMENDED that the consolidated complaint be dismissed insofar as it alleges violations of the Act not found herein, specifically paragraphs 7(b), 8(a), 11, and 13. IT IS FURTHER RECOMMENDED, in Case 36–RC–5233, that the challenges to the ballots of Nancy Schneider, Judy Deck- er, Peggy Johnson, and Pat James be overruled, that their ballots be opened and counted and that a revised tally of bal- lots be issued. APPENDIX A January 23, 1990 To: Mintra Sharma, Rick Quintero, Calvin Hightower From: Western Health Staff Re: Benefit Package Per Dr. Quintero’s suggestion we are submitting the fol- lowing proposal for your consideration. We are requesting a response from WHS Management staff within two weeks. 1. Holiday Pay: It is proposed that staff of WHS be reim- bursed for any legal holiday recognized by management and whenever Western Health is on holiday dosing hours. Those staff members who are required to work will be paid for the time they are working in addition to a full day’s holiday pay. (Double-time). 2. Vacation: It is proposed that WHS revise their vacation benefit package to reflect: one week (40 hours) after the first year of full time employment; two weeks (80 hours) after the second year of full time employment; and, three weeks (120 hours) after the fifth year of full time employment. 32 hours and more equals full time. Part time employees would accrue vacation hours at half the rate of full time employees. 3. Sick Pay: It is proposed that sick time be accrued at a rate of four (4) hours per month, six (6) days per year. All sick time not utilized would be carried forward into the next year with a maximum number of hours of accrual. This num- ber of hours to be negotiated. It is suggested that an em- ployee be allowed to accrue 250 hours of sick time. Thus in case of emergency surgery, etc. an employee could utilize this time and not be financially impacted over time loss from work. 4. Medical/Dental Benefits: Medical/Dental benefits will be provided to full time WHS after six months of employ- ment. WHS management will pay 50% of the premium and after one year of full time employment this amount will in- clude management payment of 100% of medical/dental pre- miums. An employee can enroll members of their families at their own expense. It is requested that three (3) packages be presented to staff from medical/dental providers and that staff be allowed to choose which plan most meets their needs and a vote be taken and a provider selected. 5. Annual Raises: It is proposed that WHS provide staff with an annual raise of 5%. This raise is given on the anni- versary date of employment and will be reflected in the next pay check. If a supervisor is unable to meet with the em- ployee to perform a performance appraisal the employee will not be put off on his/her annual raise. 6. Travel Time/Pay: Whenever WHS requests a staff mem- ber use their own vehicle to provide a WHS service, the staff member will be reimbursed for their time and .20 cents per mile. If a staff member must carry doses to jail, the em- ployee is reimbursed for all expenses incurred, i.e., time, mileage and parking if utilized. A WHS staff member should never be requested to perform a service for management without being properly reimbursed. A WHS staff person who is requested to attend a meeting which involves travel will be reimbursed accordingly or be excused from attendance. 410 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 7. Training: WHS management is requested to provide training to all staff. This training is to include in-service edu- cation provided by WHS and outside training designed to better educate staff on addiction, etc. 8. Grievance Procedure: A process be set up for WHS staff to utilize in case of disagreement with a management decision. 9. WHS staff are requesting that new employees be fully advised of what benefits are available. No more secrets. Standardized treatment for all staff. Policy regarding benefits should be maintained in the policy manual in precise detail, fully explaining benefits. 10. WHS staff are requesting a specific dollar amount be deducted from their checks as a draw (or advance) in the middle of the pay period. This amount would be individual and given to employee on an ongoing basis and deducted from monthly paycheck. 11. Adequate Supplies/Equipment: Management provide employees with requested supplies. New equipment should be purchased as necessary in a timely manner. Desks and chairs should be adequate for employees’ comfort. Straight back chairs are not acceptable for an employee who sits most of the day. Management should consider that staff members are working for them and accept their responsibility to make their jobs as comfortable as they can. 12. Salary ranges. A salary range be established for posi- tions and reviewed annually. An employee upon employment can negotiate within salary range. This salary range is to be placed in policy manual and available to all staff. APPENDIX B January 26, 1990 To: Nancy Schnieder From: Mintra Sharma, Administrator Re: Your letter dated January 23, 1990 During my regular management meeting with Mr. High- tower today, he assured me that an amicable understanding has been reached with you pertaining to the issues addressed in your letter. Nevertheless, I feel compelled to respond to you personally. Please be advised that all your requests will be considered whenever we review any part of the current policy and procedures. However, no changes will occur im- mediately or in the near future. You addressed the letter, ‘‘From all W.H. Staff.’’ Further investigation revealed that most of the W.H.C staff were un- aware of the issues you presented on their behalf nor wished to condone your assertions. I will address each issue individually as follows. Items 1, 2, 3, 4, 5, 6, 9, 10, and 12 are specified in the W.H.C. Manual. However, I will rewrite each of these issues again and elaborate in order to simplify them. All applicants are required to read the policy manual prior to their employment with WHC. No one employee has ever been hired in protest of the WHC Policy as written. Item #7. In-service training are [sic] during our weekly staff meeting. I recall my December visit, U.A. training was conducted at all the Team Meetings at the various WHC sites. During the last Management Meeting, I was made aware that the Dispensary Procedure Training took place at the Salem Clinic site in mid January 1990. In December of 1989, I ofered to all WHC staff an opportunity to attend the State Training which would be conducted outside of the WHC Facility during 1990. All but two staff members had some excuse not to attend. The two staff who signed up, later cancelled for some personal reasons. Oregon Aids [sic] Task Force offered a seminar recently and Dr. Quintero was the only one who voluntarily attended. It is apparent that WHC Management will have to mandate attendance to at least one of the outside training and all of the weekly in- service training. Mr. Hightower has completed the in-service training manual, prepared with Ms. Boley’s assistance. Per- haps you can discuss the implementation of this task with Mr. Hightower at your next Team Meeting. Item 8. In reference to the grievance procedure, there is a section in the Policy Manual. Please refer to this section of your Manual as soon as possible in order to review it. Item 11. On your monthly request form you can indicate any furniture or equipment needed. Christi will verify the in- ventory or get price quotes and will submit it for approval. Furniture and equipment request does take at least 30 days to get approval and order. All other requests will be filled within 10 days. As you are aware, we try to accommodate all staff mem- bers as best as we possibly can. Although, at times it is very difficult to make changes with varied staff personalities. We have some very comfortable desk chairs in storage at the S.E. Clinic site, please remind Mr. Hightower to exchange the straight back chairs with the ones in storage. W.H. strives for staff comfort. A relaxing work environment is imperitive for productivity. Dr. Quintero and Dr. Hewitt are always available to ad- dress any clinical issues that arise at any of the WHC sites. Mr. Hightower is always available to address any manage- ment or personnel issues. I am always available to address any administative issues. All employees are continuously given constructive feed-back on their job performance. Item 12. Salary range is established and agreed upon prior to hiring of any employees to work at any of the WHC sites. This last item should conclude my response to your issues addressed in your letter. Finally, any effort to disrupt therapeutic care provided by WHC will be grounds for immediate dismissal. It has been brought to my attention that staff’s personal problems has been imposed upon other staff members and certain clients. This behavior only causes confusion and interupts their work and ongoing quality treatment that we set-up to provide. All issues must be presented to Mr. Hightower, and a writ- ten memo from him will be presented to the Administration for review and response. An in-service training will be proviced to all Salem staff on Clinic Policies as soon as it is revised. cc. Mr. Calvin Hightower, Dr. Rick Quintero, Mr. Paul Dud- ley, Attorney at Law, File APPENDIX C INTEROFFICE MEMO February 9, 1990 To: Mintra Sharma, Administrator, Rick Quintero, Executive Director Subject: Response To January 26, 1990 Letter From Mintra 411 WESTERN HEALTH CLINICS There are many areas addressed in your letter to me regard- ing the benefits proposal submitted to you by Western Health staff I am concerned about. They are as follows: 1. This proposal was not written by one staff person (my- self) and submitted to you. It is an effort in which all Salem staff met and determined what benefits they felt Western Health Services should offer to their employees. It was then shared with staff at the Portland area clinics to get their input. After this it was submitted to yourself and other man- agement staff. Vicky at N.E. was the only staff who ex- pressed no desire to be involved and her wishes were re- spected. However, there are staff at the NE clinic who are concerned with a better benefit package. 2. When we talked by telephone on Saturday, you indi- cated you had spoken to several staff persons (Vicky, Paula, Christie and Sandy) who had denied any knowledge of this proposal. On Monday I spoke with Christie who stated she had not talked with you over the weekend and to her knowl- edge no one else other than Vicky had talked with you. I do not consider talking to one person who was opposed to the proposal a thorough investigation of where Western Health staff stand on this issue. Further investigation on my part in- dicates staff at all Western Health clinics are awaiting your response to their proposal. 3. I realize items 1, 2, 3, 4, 5, 6, 9, 10, and 12 are speci- fied in the WHS policy manual. However the proposal was written to express dissatisfaction with these items and not to request simplification of them. We can read the manual and see for ourselves what the benefit package provides. It is not enough! To merely rewrite these items does not address the fact that [the] WHS benefit package is outdated and not com- petitive in today’s job market. 4. Applicants review the policy manual sections which refer to clinic policies, State and Federal guidelines and do not read sections referring to benefits. Therefore they should be fully explained prior to employment. 5. This is perhaps my greatest concern. Salem staff met with Calvin to discuss this proposal but in no way were these issues resolved or an amicable understanding reached. Your response indicates you are unwilling to even con- sider a better benefit package for your employees now or in the immediate future. You state ‘‘no changes will occur im- mediately or in the near future.’’ I submit to you the very real possibility that changes will indeed occur at Western Health Services in the effect that staff are so frustrated with management’s lack of understanding of their need for better benefits and the unwillingness on your part to address these issues that their only alternative is to seek help from an out- side source to act as mediator on their behalf. Please under- stand staff at ‘‘all’’ of Western Health Services are behind this proposal and your lack of an All Staff response has been noted by them. I am requesting you send such a memo addresssed to each staff person or at least a memo to each clinic to clearly inform them of your position in this matter. NLS cc: Calvin Hightower, Regional Director; Jay Lawshe, Clin- ical Services Manager; Charles D. Burt, Attorney at Law APPENDIX D NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we vio- lated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protection To choose not to engage in any of these protected concerted activities. WE WILL NOT discourage membership in or activity on be- half of Service Employees International Union, Local No. 49, AFL–CIO, or any other labor organization, or interfere with the protected concerted activities of employees, by discrimi- nating against employees who engage in such activity. WE WILL NOT discharge employees because we believe they have engaged in union or other protected concerted ac- tivities. WE WILL NOT imply that employees will receive benefits if they reject a union. WE WILL NOT create the impression that we are keeping our employees’ union or protected concerted activities under surveillance. WE WILL NOT interrogate our employees about their union or protected concerted activities, or threaten to discharge them or discipline them for engaging in such activities. WE WILL NOT threaten more onerous working conditions, threaten to close down or sell our operations or threaten em- ployees with unemployment because they have engaged in union or other concerted protected activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of rights guaranteed them by Section 7 of the Act. WE WILL offer Nancy Schneider and Judy Decker imme- diate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other privileges, and WE WILL reimburse them for any loss of earnings they may have suffered because we discharge them, together with interest. WE WILL remove from our files any reference to the un- lawful discharges and notify Nancy Schneider and Judy Decker in writing that this has been done and that the termi- nations will not be used against them in any way. WESTERN HEALTH CLINICS