Hospital Of St. Raphael

46 HOSPITAL OF ST 'RAPHAEL Hospital of St. Raphael and New England Health Care Employees Union, District 1199, a/w Na- tional Union of Hospital and Health Care Em- ployees, RWDSU, AFL-CIO. Cases 39-CA- 539 and 39-CA-839 30 November 1984 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 3 September 1982 Administrative Law Judge Arline Pacht issued the attached decision. The Re- spondent filed exceptions and a supporting brief, the General Counsel filed cross-exceptions and a supporting brief, and the Respondent filed an an- swering brief. The National Labor Relations Board has delegat- ed 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 briefs and has decided to affirm the judge's rulings, findings, 1 and conclusions only to the extent consistent with this Decision and Order. We agree with the judge's findings that the Re- spondent did not violate Section 8(a)(3) and (1) of the Act by revising employee Rosen's work sched- ule effective 8-September 1980 or by issuing a writ- ten warning to her on 13 October 1980. We alsb agree with the judge's findings that the adverse personnel actions taken against Rosen after she filed a grievance over the warning were not moti- vated by R osen's union activities and therefore were not violative of Section 8(a)(3) and (1). Con- trary to the judge, however, we further find that Rosen's conduct in filing and pursuing the griev- ance did not constitute protected concerted activity and therefore the adverse personnel actions taken by the Respondent did not violate Section 8(a)(1). The relevant facts, as more fully set forth in the judge's decision, are as follows. Rosen was em- ployed for about 6 years as a part-time clerk-typist in the Department of Respiratory Therapy, which was headed by Mazzacane starting in July 1980. On 13 October 1980 Rosen received a written warning from Mazzacane for "leaving work with- out authorization." Rosen immediately complained about the warning to Mazzacane, advising him that she was doing so pursuant to the Respondent's in- I The Respondent and the General Counsel have excepted to some of the judge's credibility findings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance 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 Or 1951) We have carefully examined the record and find no basis for reversing the findings ternal grievance procedure and claiming that the warning was harassment for her union activities.3 In the course of processing her grievance, Rosen also protested to several of the Respondent's offi- cials that Mazzacane had committed certain techni- cal violations of the grievance procedure itself.4 Ultimately, on 13 January 1981, Executive Vice President Beeman advised Rosen in writing that the warning would be removed from her personnel file. He also stated that the grievance procedure had been reviewed and would be "further clari- fied" in the near future. On 17 February 1981 Rosen received from Mazzacane her first negative performance appraisal. Other adverse personnel ac- tions followed, including a second negative per- formance appraisal on 30 July 1981, 5 before Rosen submitted her resignation from work effective 9 October 1981. The judge found that Rosen's conduct in pursu- ing her grievance was protected concerted activity. Finding NLRB v. Interboro Contractors6 applicable even though no collective-bargaining agreement was involved, and citing Alleluia Cushion Co., 7 she found that Rosen's protest "was designed, at least in part, to vindicate rights guaranteed to all em- ployees, by Section 7 of the Act" and that Rosen "set in motion a process which could only inure to the benefit of her co-workers." The judge went on to find that many of the subsequent adverse person- nel actions taken against Rosen were part of a con- tinuing pattern of retaliation for the manner in which she pursued her grievance. Contrary to the judge, we find that Rosen's pur- suit of her grievance did not constitute concerted activity within the meaning of Section 7 of the Act. Following the judge's decision herein, the Board issued Meyers Industries, 8 in which it over- ruled Alleluia Cushion and its progeny and held:9 In general, to find an employee's activity to be "concerted," we shall require that it be en- gaged in with or on the authority of other em- 2 The grievance procedure, as set forth in the employee handbook, consists of three steps at step 1 the employee must present the complaint to his or her supervisor, at step 2 the employee may present the com- plaint in writing to the department head, and at step 3 the employee may take the matter to the administrator, whose decision is final and binding 3 It is undisputed that Rosen was a known, active supporter of the Union both before and after the representation election on 8 September 1980, which the Union lost 4 Because Mazzacane at that time was Rosen's supervisor as well as the department head, there apparently was some confusion as to meeting the requirements of steps 1 and 2 5 The judge inadvertently erred in referring to February and July 1980 rather than 1981 6 388 F 2d 495 (2d Or 1967), enfg 157 NLRB 1295 (1966) 7 221 NLRB 999 (1975) 8 268 NLRB 493 (1984) 9 Id 273 NLRB No. 8 HOSPITAL OF ST RAPHAEL 47 ployees, and not solely by and on behalf of the • employee himself. Thus, the Board will no longer presume that an in- dividual employee's activity is concerted simply be- cause the matter complained about is of interest tO other employees. Moreover, although the Board has held that an individual employee's filing of a grievance based on a collective-bargaining agree- ment constitutes protected concerted activity—see, e.g., Interboro Contractors, above—the Board has not extended its holding to an individual employ- ee's filing of a grievance pursuant to an employer's noncontractual grievance procedure. Thus, in Alcan Cable, 1 ° the Board specifically held:11 An employee's action in filing an internal com- plaint cannot constitute concerted activity if, as Lawson's action undisputedly was, it is done solely. by and on behalf of the -employee himself and is not done in reliance on any col- lective-bargaining agreement. See Snap-On Tools Corp., 207 NLRB 238 (1973). In the instant case, the record establishes that Rosen's grievance was, at bottom, an individual and purely personal complaint, and that Rosen's pursuit of the grievance did not constitute concert- ed activity." Rosen challenged a written warning directed at herself alone. As found by the judge, the written warning arose out of a misunderstand- ing between Rosen and her supervisor and was not motivated by her union - activities. Further, al- though Rosen also, in the course of processing her grievance, protested certain technical aspects of the Respondent's internal grievance procedure, no other employee joined her protests. Thus, in ac- cordance with Meyers Industries and Alcan Cable, we find that Rosen's complaints were not "concert- ed" because they were made solely by and on behalf of herself and not in reliance on any collec- tive-bargaining agreement. Therefore, we further find that any adverse personnel actions taken against Rosen in retaliation for her grievance ac- tivities were not violative of Section 8(a)(1)." Ac- 1 ° 269 NLRB 184 (1984) " Id at 184 12 We note that the US Supreme Court in NLRB v City Disposal Sys:- terns, 104.5 Ct 1505 at fn 6 (1984), in sustaining the Board's "Interboro doctrine," also recognized the Board's distinction in Meyers Industries, above, between cases based on the existence of a collective-bargaining agreement—e g, Interboro—and those that are not—e g, the Instant case 13 Although the finding that the Respondent's actions were retaliatory makes Rosen's situation a sympathetic one, we note that the Board in Meyers Industries stated the following in response to a similar concert) (268 NLRB 493, 499) We do not believe, however, that, Section 7, framed as it was to le- gitimize and protect group action engaged in by employees for their mutual aid or protection, was Intended to encompass the case of in- dividual activity presented here Pile are not empowered to cordingly, we shall dismiss the complaint in its en- , tirety. ORDER The complaint is dismissed. correct all immorality or even illegality arising under the total fabric of Federal and state laws DECISION STATEMENT OF THE CASE ARLINE PACHT, Administrative Law Judge. This matter was heard in Hartford, Connecticut, on February 1, 2, and 3, and in New Haven, Connecticut, on March 15 and 16, 1982. Pursuant to charges filed on February 17 and September 21, 1981, as amended on October 27, 1981, a consolidated complaint issued on November 4, 1981, alleging that the Hospital of St. Raphael (the Hos- pital or Respondent) unlawfully discriminated against its employee, Sandra Rosen, for engaging in union and other concerted protected activity in violation of Section 8(a)(1) and (3) of the National Labor Relations Act (the Act). Respondent's timely answers deny the allegations of the complaint as amended All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-ex- amine witnesses, and to argue orally. On the record, in- cluding my observation of the demeanor of the witnesses and after due consideration of the briefs filed by counsel for the General Counsel and for Respondent, I make the following FINDINGS OF FACT I. JURISDICTION* THE BUSINESS OF THE EMPLOYER AND THE LABOR ORGANIZATION INVOLVED Respondent, a Connecticut corporation with an office and place of business in New Haven, Connecticut, has been at all material times engaged as a health care insti- tution operating a hospital which provides in-patient and out-patient medical and professional health care services. During the calendar year ending December 31, 1980, in the course and conduct of its business operations, Re- spondent purchased and received at its New Haven facil- ity products, goods, and materials valued in excess of $50,000 directly from points outside the State and de- rived gross revenues in excess of $250,000. Accordingly', I find that Respondent is now and has been at all times material 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. New England Health Care Employees Union, Distnct 1199 (the Union) is now, and has been at all times mate- rial a labor organization within the meaning of Section 2(5) of the Act 48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II ISSUES The issues presented in this case are whether: (1) Re- spondent engaged in the following conduct in order to discriminate against Sandra Rosen because of her union or otherwise concerted protected activity . (a) revised her work schedule on September 8, 1980, (b) issued her a written warning on October 13, 1980; (c) issued adverse performance appraisals to her on February 5 and July 30, 1980; (d) denied her an annual merit increase in February 1981; and (e) denied her request for a revised summer work schedule, and (2) these measures, together with other actions involving criticism of her performance as an employee, compelled Rosen to resign and thereby constituted a constructive discharge in violation of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Sandra Rosen was first employed by the Hospital in February 1974. For approximately 6 years prior to her termination on October 9, 1981, she served as a part-time clerk in the Hospital's respiratory, therapy department. During her first 5 years in this position, under then De- partment Chief Peter Pagliari, Rosen maintained an un- blemished work record and regularly received annual merit increases. Pagliari evidently valued her efforts, for in January 1980 he gave her a glowing evaluation com- menting that "she has the ability to handle almost any- thing that is assigned." In October of the same year, she received a 17-percent pay raise as part of a hospitalwide program designed to revise job descriptions and upgrade wages. B. Rosen's Union Activity The record shows that Rosen became involved in union activity as early as December 1979 when Local 1199 began an organizational drive among the service employees at the Hospital From March, when the Union's campaign surfaced and quickened, through Sep- tember when the election was held, Rosen was among the staunchest of union advocates She distributed leaflets at hospital entrances and in the cafeteria between shifts, served as spokesperson for the group of employees who requested recognition for the Local, posted union notices on the departmental bulletin board, was one of several speakers at the Union's rally on August 15 shortly before the election, attended the meeting at which the list of eli- gible employees was devised, and served as an observer for the Union at the September election Her efforts on behalf of the Union did not go unnoticed, as several of Respondent's witnesses conceded. The Hospital responded to the Union's drive with a countercampaign of its own. At considerable expense, a management consulting firm was hired which had among its responsibilities the preparation of numerous antiunion letters which were issued to employees. Although the letters were not alleged by the Union to be unlawful, they nevertheless unmistakably revealed Respondent's antipathy to unionism and to the value of collective bar- gaining by outside interventionists as a means of redress- ing employee problems. Telling evidence of antiunion bias may also be found in an admission reluctantly of- fered by John Bimonte, Respondent's vice president of human resources,' that he instructed his staff to be wary of hiring "union plants," and from a comment to Rosen by the current chief of the respiratory therapy depart- ment, John Mazzacane, that "people must be desperate to go to a union."2 The Union lost the election held on September 8, 1980, and thereafter filed no objections as to Respond- ent's conduct during the organizational drive. Even after the Union's defeat, however, and throughout the dura- tion of her employment, Rosen continued to wear the Union's button as a sign of her commitment 1. Alleged harassment In June 1980, John Mazzacane, formerly head of the school of respiratory therapy, became acting chief of the respiratory therapy department, replacing Pagliari who left for a new post. In August, he became chief. Under Mazzacane's administration, Rosen suffered a series of adverse employment actions which ultimately led her to quit her job. These are the source of the unfair labor practice allegations in this case. a. Schedule change The first conflict between Mazzacane and Rosen arose over her work schedule Under Pagliari, Rosen worked four 5-hour days per week . Monday: Wednesday, Thurs- day, and Friday Her day usually commenced at 10 a.m., although her starting time was variable. Rosen testified that on August 24, without prior notice,- Mazzacane informed her that her schedule would be altered effective September 8 to a 5-day workweek. On August 25, Rosen sent Mazzacane a memo in which she stated she would accept the work schedule revision, but only under protest Respondent's account of this matter varies widely from that offered by the General Counsel. Mazzacane re- lated that prior to becoming chief, he and others in the department were troubled by Rosen's erratic hours and were never sure of precisely when she would be avail- able. Therefore, he determined to regularize her work schedule He chose the hours of 1 to 5 p.m out of a desire to have the clerk-typist available at times which suited his own work schedule, to insure coverage of the telephone during a shift change between 3 and 3.30 p m., and to make way for a second part-time clerk typist. Mazzacane stated that he told Rosen early in July that it would be necessary to stabilize her work schedule. In the latter part of July, he was more definite, telling Rosen that he wished her to work a 5-day workweek from 1 to 5 p.m. On August 1, shortly before Rosen left for a 2- week vacation, Mazzacane further maintained that he told her the new schedule would take effect on Septem- Bimonte served as director of personnel in 1980 and 1981 when the events giving rise to the Instant complaint occurred 2 Rosen impressed me as a sincere witness, who testified in a forthright manner. whereU..s Mazzacane frequently offered shifting and inconsistent explanations for his actions and of events Therefore. I am inclined to credit Rosen's assertion that Mazzacane made such a remark HOSPITAL OF ST RAPHAEL ' 49- ber 8. In an effort' to' accommodate Rosen's interests, somewhat, Maizacane 'agreed 'to a 12-to-4 shift' for her. He Subsequently confirmed the schedule change by memo dated August 8: Since Rosen was on leave at that time, she could not have 'received the memo until she re- turned to Work abont August 20' Minutes taken at a - supervisory "staff meeting held' on August 6 indicate' that Mazzacane :announced 'inter alia' that "the new schedule was diScussed with clerk-typist and will begin soon. It will provide employees with 'coy-' erage '5 days/week. The same hours each day. In ad&'. tion , we will try to expand that position to 40 hours-" Off August 22, the entire department was notified by memd - that Rosen wotild commence a 5.;daY schedule from 12 to 4 p.m. on September 8., _ . ,Documentary proof entered into the record of this case , provides a convenient mearis of resolving the dis- pute as to when Rosen was advised of a schedule change. Turning first to the August 6 memo, I note that it refers only to the prospect of "5-day workweek for the clerk-typist; it makes no mention of-specific hours or ,of the effective date for the new schedule. Although the memo of August 8 is more specific as, to the details of the schedule change, this memo could not have been transmitted to- Rosen until. she returned from vacation. From •this I infer that, although Mazzacane probably, mentioned the possibility of a 5-day workweek to Rosen, she was not given notice of the express „hours she would . work or the date that , the new schedule would be mented until about August 20 when .she .returned from her' vacation. . • b. Warning , The next clash between Mazzacane and Rosen ocl - , curred when she left work an hour early on October 10. Here, too, the parties' acconnts of this cOntretemps differ. sharply. Rosen testified' that -on 'October 3 she asked Mazzacine how she shohld deal 'with medical appoint- ments previously scheduled for her Children on October 13 and 17 which conflicted with her new 'Working hOurs'.., Mazzacane allegedly assured her; that ;she could leave work an hour early oh these ode-ask:ins. AccordinglY, on October 10,, she punched out' at, 3 -p.m. , - Mazzacane acknowledged that, -apprOx' imately a week . before October 10, Rosen asked huh, in a general way, what procedure she should follow if,prescheduled medi- cal appointments conflicted with her new work schedule. He denied that she referred to any specific dates. Mazza cane stated- that, during .the same conversation, Rosen urged him. to permit her to resume her former working hours. The following Friday. afternoon,. when Mazzacane was unable to locate Rosen, he feared, that she .was re-, verting to her former irregular work pattern without au-,_ thorization, and issued a written warning to her on Octo- ber 13. This was -the first disciplinary measure she had received _throughout the course of her employment with Respondent. - Rosen's reaction to the warning was immediate. she accused ,Mazzacane of harassing. her for union activity and filed a Written grievance the same day. 3 Rosen pur- sued .her grievance zealously through each' step of the grievance- procedure In an effort to 'clarify the process, particularly with regard to the 'distinction- between step 1 and '2,4 'Rosen telephoned: met With, and Wrote memos to various members of the administrative' hierarChy in- cluding Personnel Director :-BirriOnte, Departmental Co- Director Dr Sekand, the Hospital's 'Associate AdminisL. trator Skopac, and finally' Respondent's 'Executive Vice President Beeman. Her memos forcefully set 'forth her position, adamantly denied.`Mazzacane's version .of the' incident, 'and accused him- of issning the warning' as union' harassment, repeatedly criticized' the handling of her 'grievance as violative Of hospital policy and request- ed that the warning be rescinded. Ultimately, on January- 13; 1981, Beeman issued a written decisicin in which he, ruled that the warning would be rescinded. His-decision Was based on "a reviewl of the events .‘ : : leading up to' the invalid warning together with a review-of your 'work' at the Hospital." Further, Beeman '- wrote that "the Grievance Procedure process which was followed in this case was also *reviewed, - and 'will' be further -clarified 'by: Mr. 'Skopac in the near future" ' c. Performance appraisals_ . - ,;, . Ih_adcOrdance with the Hospital's evalnation system, Rosen received written employee.performan.ce,appraisals; on February 17 and again on July,.30,, 1980 , In ,contrast to Pagliare,s' very favorable assessment 4.0ctober 1980, . ,Mazzacane's February evaluation fonrid,Roseh,severelY' deficient in each of the areas identified on Pie,„form. cifically, Mazzacane note,d that her typewritten work was unacceptable in that it contained , freerit that her productive output was poor, that she Was u67 willing to handle difficult - and , undesirable' assignments, had occasional , conflicts with ,her „supervisor and "is ex- tremely defensive making implausible excuses for errors." As a result of this negative appraisal,' Rosen failed to 're-_ delve a merit pay increase. , Maz_zacane testified ,at length .about shOrtcomings Rosen's * performance which he, believed warranted his harsh appraisal. Numerous letters', memos-, and .6ther_ma-,„ terials, which Rosen typed were introduced in evidence to demonstrate:alleged errors or,ornissions. For example, Mazzacane testified with respect to a .merno to another department chief he had ,prepared as, one of his first ad- ministrative acts. Although the final copy, of the memo, did not contain errors, he nevertheless was concerned that erasures might .be evident on the Original copy "Miz, zacane; therefore opted not to send_ the Original ,and, stead, sent his colleague a clean xeroxed copy which .did not reveal the corrections Mazzacane .further testified . •, . 3,, The Hospital's employee handbook ,describes-a three-step grievance_ procedure step 1 calls for presentation of a written grievance to the em- ployee's supervisor who is to provide a decision within 2 working days, step 2 prOvides that thereaftei the complaint shall be 'forwarded to the department head who shall isslie a decision" within 1 week, at step 3 the matter goes forward to the hospital administrator who is required to issue' a final decision in writing "as soon as possible „ ,.1 - 4 Some' of the confusion in processing_Ro-sen's g'rie'vance arose from the fact thai Mazzacane was both lier , supe'rvisor anCitlie'departmental head, thereby obscuring the distinction"between -steri 1 and step 2 - 50 DECISIONS OF NATIONAL LABOR. RELATIONS BOARD that because Rosen , failed to type one page of a- three- page memo, he had, to type it himself. Rosen-denied any. connection- with this ..memo, recalling specifically that, when it -was posted; she -remarked to a coworker that the word, t-lopinion" on the. secondpage had been typed as "opion," kmistake she would have corrected. Mazzacane offered another memo, typed in January 1981, to show that even on a. corrected version, Rosen had omitted cer-- tam -phrases. ,On returning the corrected copy _ of this memo-to Rosen, Mazzacane circled in red the portions of the letter,,which -were omitted. According to Mazzacane, Rosen-remonstrated that he should not encircle matters in red isince it made it impossible for her to correct them., .Mazzacane responded that, he did not wish such a large omission to be inserted, 1,13.ut -rather, wanted the entire_ . page to be redone. 1 ,Cal.kreuth, having,cosigned the feb- ruary evaluation,' concurred with.:Mazzacane's assessment.' of Rosert's typing skills. He estimated; that during. the, August to February evaluation, period, during a- ,bad week, -out-:of -approximately 20 documents, .5 to. ,6 might have to,.be..;retiirned.1 to Rosen for correction; while during.a good week, only 2,-or 3 might need revision. . Mazzacane also testified as to ROsen'_s purported inabil- ity td complete her work aecurately For instance, he as: serted that she failed to , identify and record in her notes the salient topics at 'depaitmental meetings. As a conse- quence;- he was compelled to completely . revise minutes or a' SePiernber , 30f,ineeting. On October 23, Mazzacane "serdRosen'a rn—eino pointing 'out that certain niOntfily re- ' '' • rd"'' 'tfr "' ports tit e Efficiency Work- Sheets" cbritained eirOrs. The Mein() Vated. that henceforth the reports first_ Were to be submitted- to Kalkreuth Rosen. did . not =deny making ,theseerrors: ,Mazzacane also- tgtified that-be- eande, ROSeh"failed!tà fill in three, pieces of information On 'forms 'designated' "Retrospective Analysis," a report which ideritifieS'.the various kinds of treatments adminis- tered. to Patientiftlie,department, he had to enter the data Sim- selh -Fie-aCknoW- ledged :that; after .bringing this matter to'ROseh's attehtiOn in No-Vember -1980, he had no further problems With the manner in' which she COmplet- eci these fOrmS:' IsTeVettheless, on lanuary. '16, 3 days'after ROseh's''‘gfieVancew-as' resolved in her favor: ,Mazzaeine- COMplained iii a ''Wfitten memo' id Kilkreuth-ihat the analyses -were -liar -being sUbmitied in a timelY 'manner This was the first "ocCasion that Rosen 'Was' adVised that the repbris'Wereconsidered late. ' • 'A significant portion Of ROsen''s 'work involved filing: various eamPuter'Printduts . Whiely 'were reCeiVed oil a weekly" or rnônthlj"1ásis Mazzacalie testified- that he found the sheet' filed so. ' that, the Piinted 'material was folded 'inside 'Out or _upside down, ,making'thern difficult td" readY-COntrar'y' Maizacane's assertion 'that 'he brought this Vroblein to RoSen's attention on arleast six occasions between August and January 1981, she re- called that the first-shch criticism occurred about -Janu- - Mazzacane 'also .a'skeeRosen to prepare, a :catalog' of reference books and-alleged that ,he gave her- a sample to follow which showed book titles listed in numerical order. Rosen denied 'having been'siven any sample and simply prepared ,a eatalog in. which the bdoks, were, not listed sequentially, ,She added that, when- she. turned in-, her work product, Mazzacane. merely thanked her and never registered any dissatisfaction. Moreover, she point- ed out that, several weeks prior toiler termination, he asked , her to add other books to those previously. listed. -Mazzacane further charged Rosen , with responsibility' for incorrectly assembling forms used by the billing de- partment. Normally, such forms were preprinted, and automatically assembled. However, when _the supply of such, forms was exhausted, Mazzacane requested .a - number, of staff members to, help assemble them, manual:: ly - Five identical pages in each form had to be carefully stapled together so that billing entries appeared in the sime grid on each of the five'pages,'Mazzacane testified that after the billing departrhent 'rejected many of the forms because charges -appeared 'in inappropriate grids, he asked each' staff member with the exception of Rosen to initial the forms they were' assembling. Thereafter, when forms were returned' which Were not initialed,: Mazzacane concluded that Rosen was responsible for the' assembling eirors. Ma-zzacane obseived that :Rosen 're- sented hiving 'to undertake this- task, and-faulted him for failing to' order a sufficient- supply. before they ran' Out.-- Kalkreuth, whose desk was - adjacent to Rosen's, ob- served that'She had difficulty in properly aligning the forrns. Also in the month of January 1981, Mazzacane asked- Rosen to chart the attendance records ' for department members for-the previous year. On reviewing her work, Mizzacane found approximately:, 70 ' errors and spent' some -3 hours' preparing a corrected' version.' Rosen ac- knowledged her errors on this project and on one or . two' other pieces of work she did in one week in January but attributed her poor performance fo the stress she felt at awaiting a final decision' on her :grievance and also be- cause of concern with.certain personal problems. ,Mazzacane described other problem he -perceived in Rosen's peformance. For example, he faulted ,her to, distinguish between importanf and' less important, as-. signments. TO resolve this problem, he established a priz ortty , System- designating -.each pieCe_ of work as having either first, second, or third prioritY., He instrUcted her to sandWich telephone 'calls in between her WOrk if they did not interrUpt and interfere 'With hei prodACtiVity. , 'Fur- ther, he testified that he7ried .on two occaStchis tO haVe her maintain- his appointment 'bOok, but Withdrew this task when she did not Perform the job to his satisfaction He alleged that Rosen misfiled catalogs frdm various supply hOuses and failed to file certain forms titled'"Un- reported Therapy . RepOrts" in chrOnologiCal order. 'Ad-- ditionally, Mazzacane testifiedthat others in- the depart: nient expressed to him their discontent 'with Roseh's per- formance. Thus,' Mazzacane alleged th'at- a former -day-, shift supervisor, Dorrance Johnson, _complained to him' about Rosen's irregular hours; that She failed to. page personnel properly of:to repage them, and that she-ne- glected:to complete priority woil promptly However, when Johnson was called by the 'Respondent to testify he flatly contradicted Mazzacane. -His dissatisfaction lay not at all with Rosen's performance Rather,. Johnson's concern was with the 'fact that no telephone_ dispatcher was available throughout the day. He pointed- out that a. HOSPITAL OF ST RAPHAEL 51 high percentage of "telephone calls to the department were of an urgent nature and commended Rosen's re- sponsible Manner in handling the dispatching functions. He made no mention of Rosen's alleged failure to com- plete priority work. Maziacane also testified that Dorothy Freel, formerly a clinical coordinator and then head of the school of res- piratory therapy, on one occasion returned some material to him for correction which Rosen had typed. When Re- spondent called Freel as a witness, however, she ex- pressed satisfaction with Rosen's work. In fact, Rosen typed not only departmental materials for her but pre- pared private term papers as well. In addition, Freel found nothing wanting in Rosen's services as registrar to the school. Freel expressed approval of Rosen's revised work schedule since its regularity helped her to plan her own work accordingly. d. The July evaluation Although Rosen should have been -reevaluted within 3 months of the February appraisal in accordance with hospital procedure, Kalkreuth, then her immediate super- visor, did not prepare another evaluation until July 30. At this time, he was as critical of her work as Mazzacane had been-. Thus, he noted that, although her typing im- proved during this period, it continued to be of an unac- ceptable quality. He further commented that she com- pleted priority work in a timely manner but that her pro- ductivity suffered At the hearing, Kalkreuth did not provide any documentary support for this evaluation other than to point to one memo which Rosen typed on a full rather than half sheet of paper as he had instructed. The only samples of Rosen's alleged poor typing during this second evaluation period were introduced into evi- dence by Mazzacahe. In two instances, letters to sales representatives contained misspellings, but were mailed out over Mazzacane's signature anyway. As a result of the July evaluation, Rosen again was denied a pay in- crease e. Denial of revised summer schedule 'Each .summer prior to 1981, Rosen , was permitted to work an earlier schedule than she did during the balance of the year. In June 1981, Rosen requested Kalkreuth's permission to revise her summer hours so that she could commence working at 11 a.m. rather than at noon Kalk- reuth and Mazzacane both refusedto consent. Initially, Kalkreuth's response was that she would have to choose between her family and her job. However, at the hear- ing, Kalkreuth and Mazzacane both maintained that her request was denied because the department had benefited significantly from the regularity - of her schedule. 2 Rosen's termination In May, Rosen began to suffer premature or skipped heart beats. Her family physician prescribed Indero1,5 6. A drug prescribed for the treatment of a variety of cardiac condi- tions See Physicians Desk Reference (Medical Economics Co, 1982 ed ) performed a number of tests and suggested she take some time off from wdrk. Consequently, between June and July she took the maximum allowable sick leave. While on vacation in August, these symptoms disappeared, but recurred when she returned to work toward the end of the month. In the latter part of August, two incidents oc- curred which Rosen alleged exacerbated the stress she was feeling on the job. One such episode concerned a project which Mazzacane gave to her several hours before she was to leave on vacation, stating that it had the highest priority. She began the assignment, but left the balance of it on her desk to be completed after her vacation. When she returned to her job, she found that many of the materials she was using for the project were missing and then learned from Mazzacane that the project no longer had a high priority. Mazzacane ex- plained that it was his superior who in fact determined that the project no longer had the significance originally attached to it. The second incident occurred when Rosen found certain computer printouts on her desk with in- structions to file them Having never seen these printouts before; she entered Mazzacane's office to ask him where they should be filed According to Rosen, Mazzacane became furious with her, and began pacing around his office saying that she should know where the documents were to be filed. Dorothy Freel, who was present in Mazzacane's office during this encounter, recalled that Rosen appeared quite distraught, but had no recollection of Mazzacane raising his voice to her at .any time Toward the end of August, Rosen returned to her physician for new tests. In mid-September, the test re- sults revealed that her symptoms were not related to a physical impairment. 6 Concluding that her problems were generated by work-related stress, Rosen tendered written resignations on September 18, effective October 9. C. Discussion 1. The schedule change and warning were not unlawfully motivated The General Counsel contends that the Respondent re- vised Rosen's work schedule, issued a written warning and two unjust performance appraisals, withheld a pay increase, and denied special summer hours to penalize her for her involvement in union and other protected concerted activities In addition, these acts together with other forms of alleged harassment were designed to make Rosen's working environment so intolerable as to compel her resignation. The Respondent contends, to the contrary, that its conduct toward Rosen was justified by her poor performance and by legitimate business consid- erations. Thus, a resolution of the issues in this case poses the recurring problem of discerning the true rea- 6 At the hearing, I rejected for hearsay reasons G C Exh 26, a -medi- cal report from Rosen's physician I have decided to reverse that ruling sua sponte, for after reconsidering this matter, I conclude that the docu- ment was not being offered for the truth of the matters asserted therein, but rather to provide the basis for Rosen's belief that her symptoms were not physiologic, and also to explain why her resignation was not ten- dered until mid-September Accordingly, G C Exh 26 is admitted into evidence 52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sons underlying Respondent's treatment of Rosen. In cases such as this, where alleged violations of Section 8(a)(3) and (1) of the Act turn on an employer's mixed motives, the Board has devised a two-part analytic ap- proach. First, the General Counsel has the initial burden of proving that protected activity was a substantial factor in the discipline imposed by the employer. Once the General Counsel has made this prima facie case, the burden shifts to the employer to prove as an affirmative defense .that the decision would have been the same in the absence. of the protected activity. Wright Line, 251 NLRB 1083, 1089 (1980).7 Here, several essential ingredients requisite to estab- lishing a prima facie case are easily satisfied. :The record clearly shows that the Hospital was opposed to the orga- nization of its employees and was well aware of Rosen's tireless efforts on behalf of the Union. Against this back- drop, the General Counsel relies heavily on the element of timing to establish the impropriety of Respondent's decision to change Rosen's work .schedule. Thus, he argues that Rosen was not advised of the schedule change until shortly after her prominent participation in the Union's August 15 rally. However, as I found above, Mazzacane did mention the schedule revision to .Rosen toward the latter part of July or early August, albeit in unspecific terms. Further, he advised the supervisory staff in early August, prior to the union rally, that the change would occur. This announcement tends to negate a causal link between Rosen's appearance at the rally and the subsequent alteration of her working hours 8 • The General Counsel further submits that Respond- ent's proffered business justification for the schedule change is wholly lacking in merit. I agree that Mazza- cane's explanation that Rosen was needed to dispatch telephone calls during the 3 to 3:30 p.m shift change made little sense. Telephone dispatching was undeniably an important function, but not only in the afternoon hours Assuring Rosen's presence during a particular half-hour period would in no way address the dispatch- ing problem during the balance of the day when she was not on duty. Further, Kalkreuth did not corroborate Mazzacane's contention that Rosen was needed to answer the telephone during the shift change. Rather, he explained that her presence during this time would permit maximum exposure to the greatest number of people in the department In this event, however, a sub- stantial number of the staff would be present to answer the telephone. If Respondent's only justification for revising Rosen's schedule rested on the need to have her available for telephone dispatching, I would have grave reservations as to the legitimacy of its motivation. However, Mazza- cane offered other reasons for the schedule change 7 In a recent decision, Zurn Industries v NLRB. 680 F 2d 683 (9th Cir 1982), the court specifically affirmed the Board's two-step approach in Wright Line, after carefully reviewing the relevant legislative history, but noted that there was not universal agreement among the circuits (id, fn 9) 8 As found above, Rosen was not notified of the precise details of the schedule change until on or about August 20 Thus, her charge that the change was Unlawful, filed on February 17, 1981, was within the 6-month proscription.of Sec 10(b) of the Act which are more convincing. Thus, he explained that he wished to stabilize her schedule so as to provide certain- ty to other department members who utilized her serv- ices; make way for another part-time clerk, and better accommodate his own work habits. Nothing in the record suggests that these were not valid considerations. Mazzacane's August 6 memo documents his intent to add a part-time clerk. Freel, a neutral and objective witness, testified that she valued the certainty of Rosen's new schedule. In addition, I note that Mazzacane testified without controversion that he acquiesced to Rosen's re- quest for a starting time of 12 noon rather than 1 p.m. His willingness to defer to Rosen's wishes, at least in part, suggests that he was not acting wholly out of arbi- trary and unreasonable motivations. On balance, then, I conclude that Respondent would have altered Rosen's work schedule even if she had not participated in union activity. Similarly, although the October 13 warning to Rosen poses a close question as to the legitimacy of Respond- ent's motives, I conclude, based on the record as a whole, that the General Counsel failed to prove by the preponderance of the evidence that it was issued for un- lawful reasons. I credit Rosen's assertion that she specifically referred to the dates of October 10 and 17 in discussing with Mazzacane the medical appointments for her children, for it defies logic to believe that she would raise the matter in a general way when the appointments were al- ready made. By the same token, it is illogical that Maz- zacane would admit to having had such a conversation with Rosen on October 3 only to deny that she men- tioned any dates to him. If Mazzacane were dissembling, he conveniently could have forgotten that any conversa- tion about medical appointments occurred at all. As a matter of‘ common sense, I surmise that Mazzacane simply forgot that Rosen mentioned express dates to him. Even granting Mazzacane's forgetfulness, a question re- mains as' to his reason for issuing a written rather than a simple oral warning to an employee who had a 6-year untarnished work record In reaching the conclusion that Mazzacane's overreaction was not in reprisal for her union activism, I bear in mind that the Union filed no objections alleging preelection campaign misconduct by any hospital representative. Further, the General Counsel was not successful in showing that any of Respondent's employees were treated disparately either because they supported or opposed the Union. Moreover, if Respond- ent wished to retaliate against Rosen for her union activi- ty, it would not have granted her a 17-percent pay raise on October 17 as part of a job upgrading -program. In light of these considerations, I conclude that, while Maz- zacane's warning was intemperate, it was not issued for reasons which are violative of the Act. 2 The evaluations and denial of pay raises were unlawful • As soon as Mazzacane's warning was overturned, Rosen was subjected to a series of adverse employment actions which culminated in a devastating performance critique issued in early February 1981. The nexus be- ; -5 a ..- 0 1-10SPITAL OF ST:\ RAPHAEL "; 53 tween 'the successfaconehision of`-ROsen's::grievance and the subsequent aetions taken4ganist- her:stronglP suggest that in '-§ucCes§fully 'pfosectiting nher tomplainV;Rosen won a 'victory i-Only to lose- the :War 9i.Thus, on -the--same day 'that-Rosen received the }final decisionr-revoking-Ithe warning,' Mazzadane :advised Kalkrenth it in .ta written memo that the iretrospective an-alyses"iWere:not:being sub- mitted in a 'timely Mathier..Yet, ,by' 'his'owtt- account, Mezzacane admitted that Rosen had .Preparedithese 'arial- yses :properly since NoveMberfand 'there iSmtreyidence in the record that he requested her to' submit,them rat an- other time. Therefore, it. is more than -cubousahat : he failed to mention that he had a problem with: their timeli, ness until '.thevery date. that the gnevance-_process 'Was concluded. ApprOximately l' week lateri,Mazzacane- ob- jected to -the manner in which Rosen _filed computer printouts, work she had iperformedx throughout.: her career with Respondent without .comment. arrt skeptical of Mazzacane's assertion 'that he' spoke. to Rosen' about her improper filing techniques on numerOus-,past -occa- sions. 'Rosen was an articulate and .-.obviously college-educated woman. Throughout her testimOny;ishe seldom forgot important-- -matters, whereas- Mazzacane frequently forgot the dates when certain events took place or who-had been involved in them. I deducetfrom this that if Mazzacane had admonished her ini the ,Oast she would not have made the 'same mistake twice.,There= fore, Mazzacane's attempt to:poi-tray:Rosen a§ a careless and inept employee who consistently failed to perform simple filing tasks ,seems. manufactured 'or, at_best, very much-exaggerated: • -,;• Soon after these ill-founded-criticisms _were- lodged, Rosen received' the --employee - performance, appraisal which found .:her deficient 'in -virtually every. regard. In finding that this appraisal stemmed from vindictive -moL tives, I rely- on more than the coincidence in timing be- tween its issuance and the successful 'prosecution of Rosen's grievance. Among the other-factors -which must be taken into account is- Rosen's- previOus work `history. Throughout her career with Respbndent; she regularly received - merit increases. Paglian; who without.contra- diction was depicted as a demanding t taskmaster, .de- scribed Rosen in exemplary terms 'in-his-last appraisal of her. Paglian's comments were not tho-se.of a, easual server; rather, they reflected the considered judgments of a supervisor who 'had closely scrutinized Rosen's work on a daily basis for 5-years Respondent fails in itSr at: tempt to call:into.,question Paglian's standards or- judg- ment by introducing into evidence. various -imperfect • - 9 At the hearing, I granted the General Counsel's motion to afnend the complaint to allege expressly ,that Respondent's unlawful conduct also constituted a violation of Sec.48(a)(1) in that It was designed to retaliate against Rosen because she- resorted to tile griuyance-procedure Respond- ent argued strentfously, then and .in'its brief (Q the amendment is time- barred 'under Sec 10(b)" of the' Act 'Respondent's argument is without merit 'Settled authority,establislies that once a charge is filed the, Board may deal with any related matter which arises out of the original event See NLRB s. Douon Cod C. 201 F 2d 484. 491 (2d Cir- 19-S -2). Gould. Inc, 260. NLRB 54 ,(1 "982) Here, Rosen's charge referred to unlawful ireprIman‘ds. Including the one which gave rise to her gm ance Thus, it cannot seriously.' be' dtsputeaT that allegations Of wrongful motivation based on Rosen's, pressing that grievance are , not closely,_ related to the original charge typeWrittens,inemos.w,The.claim or rather suggestion-,that these: memos--were -all ...Roseri!s work was _unsupported by theevidenCe. There -was' no showing, that all or most of these -memos were - her.:-.iwork: or under What 'circum- stanCes dr,-conditions,:th-e errors- and ..handwritten'inser- tiOns Werdi niäde, Or-that -they -were not-correCted prior to circulation,' Further, • the'l-Febniary -evaluation- Was cosigned 'by Kalkreuth who had 'served 'a§" -the t associate chief thrOughout much of Rosen's" erriplOYment in that depart- ment and -who shared the same' office-with =her: - Yet, there is no' documehlatiOn in- the record -that at -any time prior '1O February 1981- he-tdornPlained abotit-hen'per: ' -1 ' formance ''. 7 = Based on this adverse -appfais'al, Rosen': Was 'Cle-nied merit increase_ Although several 'other stalrmembers re- ceived Unfavorable evalitatiOn -§,' Ro-sen: wa§- the'Wnly' ern- ployee among the staff of ai)proilinatelY ratory therapy department to receive ,poor per- konnance`eyaluation and a Wage freeze didingihe . first 2 years of -Mazzacane's administration.-1°, These, circumstances give rise_to:a 'e -OMpelling infer; ence that' Mazzacane's - evaluation of -WO-See-Was: prO- .v( • foundly ,colored by the fact that she i-1"d " ,e 1.(1 a',grievance Which Spb-§ed his decision-making to the,sprutiny of his superiors ,and' embroiled him and -other a'dinini§tFators in an .attertuate,d ,proces§"..which., nItitnitelY; ,-led_to 'an ac- knowledgement. that_ the- Ho.spital's grience- -pro°edures . , were flawed. ThroughOut,,Rosen not dnly protested ,.- impropriety of the W-a'rning, she alsb:Challenget -451 -,the pro- . , . cedures employed. In so dOing,,she._,was.engagedi : in °tin-- certed pi6tected . aetivity-. It settle(' .thatcurhyidual efforts: to compel conipliatice -with _a_collectiv-e7bargain- ing agreement will, be considered as ,serVing a,conceited purpose within the,nieaning:of the Act-.:S-eeNlAB i In terboro Contractors, 338_F.2d 495,,500 (2a Cii; 066). The principle of Interboro, is applicable even. .the,absence a labor contract where, as .here,.Roten.,iny-oked the grievance' procedure-not only to rectify a ,personal'injus-; tice„ but also-to challenge, a ;wrong which, she believed stemmed from antiunion motives. Thus, her protesi _was designed,. at least in, part, , to vindicate ,rights guaranteed to all _employees,: by -Section ,7 -f the ,Act:. In pursuing her griev,ances; Rosen Indnce -d Respondent,-to reexamine and clarify , its grievance machinery— She thereby set in motion ,a process. which-could 'only inure to the benefit of her, coworkers. See Air, Surrey _Corp„ 229 NLRB 1064 (1977). -Alleluia Cushion Co., 221 NLRB 999-,(1975)..- Respondent avers that Rosen's negative eyaluation . was warranted -.because: herhperformance-mas marginal:- To support .its _position, , IRespondent Introduced., numerous documents which were _intended „to, expose -Rosen's in- competence A close examination of these materials, to- gether with Mazzacane's, texplanationt of: their- imperfec- tions,,does not 'withstand scrutiny. For _example, Mazza- cane was :_,particularly ,critical, of Rosen's -typewritten wotk. It became evident,'. however, that Mazzacane was not complaining. about Rosen's finished_ work -product - _ •■ " In contrak, between •January 1979 and January 1980, Paghan with- held merit Increases for four other employees 54 DECISIONS OF NATIONAL'.:LABOR "RELATIONS BOARD but about: her,first drafts. •In..dtheit:Words-othe ing on error-free work-) It -does; nota-equire expertise-An Modern offiCe • practiceMO2 recognize 'Oat Mazzacane's standard isI:virtually,unattainable: tSince,Rosen-was _alto: gether willingto Correct-, any, errors,-since -many „otrthe memos ':she' .prepared:,wereirfor 3 intradepartmental con- sumption only, and since previously, xeroxed copies, of her typewritten -work_ had -been. acceptable, : Mazzacane's insistence on perfection ,seemslparticularly unreasonal;le. Seyeral others, Freel,and,Rebecca .,iloyt„ another; instrucl tor e in the school , of respiratory therapy,..-were pleased with Rosen's t yping;.„ so much so .that,theyjelied on.her to type, papers, for personal-,projects. Kalkeutfl, too, ,vas sufficiently satisfied with her skills to requestthat„She type several Jetters -for in„connection;,with a private business, in which he _w-aS.....engaged.,,..I; a"tfach.paktfiOnlar significance tokalkreuth'S observation that have "typed- approximately 2Q. doe-Uri-tents a:. ek out of which._Some 6 to 8 mere returned for cOrrection in ã , bad week; and only 2 to. 3 in a good' ood ,Orie.,,,Thisoineans, of course, that it worst,. ,12:CioctifitentS cOmpleted without mistake. Such perforMance inay"fall Shor' t Of'Per= 'fection and leaYse :room - for imprOVenient,' but it hardly Warrants total,COndemnatidit A ,rkumber. of ,cloCuments 'whieh ..Respdrident 'moved evidence reYeaVkOse'n'S `deficiency as 'Mich as they do the HoisPital'effoits to grossly disparage her perforrna` rice: Unquestionably Rosen committed errors; Thus she admitted making certain nitaikes'On the' unre- ,.•/` ported .therapy forms She further acknowledged' doing a c3P' dr fob bri ,cei.tairi,Work-Cdritpleted,inilie-monthlOf =Jan uhrY, perforiiialiCiel 'at that time to both the stress 'OraWaitiiii the'rdisfidiitiOn of her grievance and to personal problems; Hover' s error only =serves, td;:`eiiharic-e. the trustworthiness of her 'disclaimers of "responsibiliry for certain projects which Respondent 'attributed . to' her. All though leoseh'sc'Wdik‘N,Va4srjiidi 'free Of-fatilt; atininibei ' of illustrationS'idadaition to thOsepigion'slilaisFusSed süffice tO show that'ResipOlidene I o VeAfit arliFf. short- , . comings tO'crreates'a false iinpres'sion that-she .-Was inc6m- Pe' tent.- ' 1,r■C in r„. --M'azzacane's-testimotiY With reiPect't6qhe Problem en2 countered when' certain ' IfOrms'lhail'itO,be hand as- 'seinbled' isin4icative 'of his- attetript' ct'd `lptlild a case" against' Rosen'. The itifiiit;"dfihiS2testithany-"was ' that -on learning :that_ .sdrne of 'these =ToriliSi-were-'`not .pro-petly aligned and .1apled',"heldeViSed 'a method 'Cowdetermine which of the emp'16-yees- wereresponsible =fOrqhe defeC-'- •tively assembled forms.' He stated that he instructed each 'of the emplOyees";as-sisting him inithiszwork; to the forms they: aSsembled. :Howeyer,•-he did r not iso instruct Rosen, apparently: believing that -he cotilde_betterPidentify improperly assembled. forms asi her work if they.boreno identifying- initials. Maziacanetestifieththat= an' unspeci- fied ntimber of forms which- had-no' thein were found -to be defective? FlOweer, he Producedino exam- ples either" dr an - allegedlyg.defeetwe :which was retuinett6 orlof a perfect'forinrwith an- " Its not af:all clear why:the'abience-of initials could better identify Rosen's work than if her initials appeared 'on a-returned form other • employee'initials, on ;it.' 13y, failing-to furnish any real:evidence2.supportingsthese claims, when:document& tion:, 'should . „have been „within ..Respondent's , possession and :control, an- - inference, arises thathad,:such..records been-lproduced;othey would not hay,e. substantiated. Maz- zacane's contentions. 2, -Thus,-Mazzacane:s,:own accotint of' his efficiency--controli .effort•JsIrnore -indicative of his hostility, to Rosen.than it is proof,of her-inefficiency.- - • ..Mazzacaries _criticism; of the- minutes ,-of-'a ;supervisory meeting:,which Rosen prepared was equally -unwarranted. A . comparison of., the finaLversion,Of Rosen's . minutes with _those Mazzacane :completed reveals; at' most, minor stylistic differences birt:-no substantive:distinctions.. • Mazzacane's.:testirnony -with respect . to ;Rosen's 'prepa- ration of a library:catalog- also-is:incredible. He allegedly instructed Rosen-to lift a group. of books ..sequentially_ac- cording • to numbers. -assigned to (thee' and' provided her with -a ' sample.catalog to follow. However, the- model that Mazzacane Introduced into evidence differs.m...eVery respect from.,theilist-which Rosen .typed: I fincLit. impos- sible tO belieVe4hatc a Iconsciéntious, responsible iemploy- ee like-Rosen. would-wholly ignore a-format provided by her department<chief. _Therefore, I- ,credit-f-ljet! account that he such sample. Moreover,' Mazzacane could not have -been as .displeased with her work- as he claimed for he nevensuggested ;that-she revise thelcata; log 'after: it was submitted -AO .January:' Inr..fact, shortlyibefore Rosen_ resigned; he asked .'her to add addi= tional titles to-the w = _ Mazzacane's ;-disparaginglidescription of .the ways in which Rosen handled the acute care shift _logs' . also strikes.; me .as `misleading::: He :suggested that because Rosen =mistakenly» identified certain: therapists . as22not having „submitted daily ,logs as they were, required to .do, he; Mazzacane, wrongly . rebuked those .who were blame. lessIt ;is peculiar, however, t that Mazzacarfe did not name nor .thd•-Respondent produce .as .a.,_witness 'a single wrongly 7rebuked therapist. i'Moreover,_ since,.Maz-zacane had the logs in his cnstddy, easilyg.could .have-;•_con- firmed. that -a particular,therapist- ,had failed toAubmit a daily':log before chastising_him. Finally, since Mazzacane was not aware that Rosen: had -erredNn . compiling -these lists until.‘she mentionedrit, shortly ;before her termination; her mistake' Could: not have9beem taken-into: aôcount preparing 'her:evaluation._ . . '. siiin,- Respondent failed to' piovidericonvincing evi- dence that'Rosen's:performanceo.i a-Clerk-typist was so deficient aS -tO:jtiStifY the; scnthing,.appraisaVissued to her in =February 4981; just weeks r_afterf•the krievance proce- dure had run its course These circumstances_persuade -me that Mazzacane:s.,judgrnent,was distorted by a desire to retaliate "against Rosen; because of -the- manner in Which `Stie,purstied her- glieafiree'Vgainst' him.- Respond- .ent:S 41,155Wing, ' Rosen to prail on hergrievance does inot alter. the Jact,,thati. Mazzacane -and, others in the- ad- 'ministration were irritated by ,her charges of union har- "It 2 : eij' iPriciiiit'Oac t iltiterhatigt2Y 1-■11..:Rn 1376. 1381-42 (1980):'''Rcl& 1,7F:laibing-; 243 ":412:it.ii 1022 (1979) Respondent's' in- ability to..", present such ,cloCiimntaluin''is particularly puzzling in tight of Mazzácane:s-adinissioethat.. counsel instructed huh to preserve evidence of Rosen's fault3; . wOrk' after she"file&-ter utifaiis labor 'practice charie HOSPITAL' OF ST .12APHAEL- 55 assment and her persistence- in 'seeking clarification of and adherence to •the grievance procedure. Skopac's comment that management felt_ harassed by Rosen's ef- forts to resolve her grievance suggests a willingness on the part of the administration to accept and act upon a negative appraisal of a troublesome employee Accord-' ingly, I find the issuance of the February evaluation and the attendant denial of a merit increase were violative of Section 8(a)(1) of the Act. The General Counsel submits that the unlawful consid- erations which distorted the February evaluation infected Rosen's July 'appraisal as well. I agree for the record fur- nishes even less justification for the. second adverse eval- uation than it did for the first. ,Kalkreuth, who prepared this appraisal after having served as Rosen's ,supervisor for 6 months, could offer, only one picayune example of her allegedly deficient performance—her failure to use a half sheet of. paper rather than a full one fora typing as- signment as instructed. Other than ,this, Mazzacane, not, Kalkreuth, offered very few examples of Rosen's pur- portedly poor typing during this period. Again, it was-- apparent that he was referring to inaccurate first efforts, not to finished products. Indeed, Kalkreuth saw , an improvement in Rosen's performance up to May. Yet, he chose not to prepare an interim evaluation based on her improved performance Within a 3-month period in Conformance with hospital procedure, . , Given Kalkreifth's inability to Substantiate his dissatis-, factions with Rosen's performance, and Mazzacane's continued reliance on uncorrected work, the conclusion is inescapable that Reipondent's second appraisal . Of koSen 'was Unjustified and 'designed 'to ,buttress 'the pro- priety'of the earlier one As such, it was a perpetuation of Respondent's unlawful conduct I also agree with the Genera) Counsel's Contentions that Respondent denied Rosen's request for an .earlier, summer schedule for retaliatory reasons. Respondent of- fered no sound business justification for its refusal tO accede to Rosen's modest request. Kalkreuth and Mazza- cane merely asserted , that her current hours were "good' for the Departmene,'Without offering any' explanation of why this was so Arriving and departing from, work 1 hour earlier for a : period of 8 , weeks could in no way offer less,certainty or stability -to those in the departmeni who might need,her seryices There was no special need for her to be available at the 3 _p.m. = hift Change as- ,was found in the discussion above. Mazzacane ,even suggested that she dispense answering the phone if it interfered with her other more important duties Further, Kalk-:, reuth's flexibility in permitting others with equivalent or less seniority then Rosen to rearrange their schedules and designate their shift preferences contrasts- markedly, with his intransigence toward her In "the absence of any legiti- mate , explanation for its position, I infer that Respond- exit's denial of Rosen's r'eque'st for revised summer hours was part of a continuing pattern Of retaliation. 3 Rosen was constructively discharged The ,General Counsel posits that the totality of Re- spondent's conduct had the foreseeable effect of compel- ling Rosen to resign He contends,' -therefore, _that Re- spondent is liable for Rosen's constructive discharge., In determining whether a constructive 'discharge . has occurred, the Board holds that two elements must be es- tablished. first, an emplo- yer must deliberately , make an employee's working.conditions intolerable so.as:to force him.to quit his job; second;, it--must be shown that' these. burdens were imposed because - of the employee's union activities See Crystal Princeton Refining Co., 222 ,NLRB 1068, 1069 (1967) 13 • • In the present ,case, I found, on the one hand, that not all Of the adverse actions taken against- Rosen-'were un- lawfully motivated. There was, for 'example, insufficient proof that Respondent's' decision to alter Rosen's work schedule or to give her a written Warmng was discrimi- natory. Neither can I find that Respondent deliberately withheld Rosen's job description.. Rather; the evidence suggests that her description, along with 'those for 'others in the department,•;was revised and, inadvertently; not.re- turned in timely fashion for inclusion in a reference manual., Similarly, am not persuade&that Mazzacane. purposely gave Rosen Conflicting instructions about corn-' piling a report of overtime worked by staff members., The evidence also does not suliport the allegation in the amended Complaint `that Mazzacane screamed at Rosen about her failure to-file new computer printouts.- It fol- lows that such Conduct may not be relied onto establish• a constructive discharge; 'however' distressing 'such inci- dents may have b'eéri to" Rosen. On the other hand,. Re: spondent did make a numbef of far-reaching decisions af- fecting Rosen'S status as' an emploSree which were moti: vated by an intent to retaliate against herlor having en- gaged in protected concerted activity. Aceordirigly, the- second test enunciated in Crystal- Princeton has-been Met.. The -critical question which remains is whether this un- lawful _conduct . Created a % sufficiently oppressive atmos-. phere which RespOndent reasonably 'could'apect would foree Rosen's resignation' A,r6fiew o'f'the entire record cOmPels the conclusion 'that this quesiion must-be an- swered affirmatively -• • . As YoUnd above, ROSen was given twO 'evaluation which unjuStly, , exaggei2aied certain weaknesses in hei pet-for-Mance and which prOvided ,jUst ifieatiOn tor, with- holding a pay increase for,'more than 8 months. She was the only person iii the department subjected to _such. treatment. Further; Rosen was 'criticiied for performing, her job in a way which for 5 years -had been wholly ac- ceptable to the former department chief. The alteration in the way in which Rosen's work was regarded-cannot- be attributed solely to the 'advenf . ord new depaftment chief, particularly since .Mazzacane was considered a less demanding taskmaster than Pagliari..Mazzacane's insist-, ence ,on perfection from Rosen; contrasted with his toler-. ance- for , other employees'_ errors, is more than suspect. ..,. • In-acknowledging receipi of the employee perform:' ance appraisal, Rosen stated her belief that the evaluation stemmed from unlawful motives and 'did-not reflect her real performance. Nevertheless, in order to placate Maz- 13 The sane principles, of course, hold true where burdens are Im- posed- on an employee who is engaged in concerted protected activity 56 DECISIONS OF 'NATIONAL LABOR RELATIONS BOARD zacane, she began checking and rechecking her typing. The upshot of this was -that her productivity decreased, leading to new criticisms. Thus," in an effort to Satisfy Mazzacine-,and ward off his unreasonable faultfinding, Rosen was thrust into a no-win position Denying Rosen an earlier summer work schedule served to exacerbate an already tense situation. Depriving her of this modest ben- efit without sound reason suggests that it was part Of a• continuing effort to make her working conditions as .un- comfortable and inflexible as possible. Then, even after: conceding that her efforts had improved, Kalkreuth un- leashed another devastating evaluation. With both_ her supervisors denigrating her efforts, Rosen could have htle expectation for ordinary consideration on the job, much less hope for advancement. Respondent cites Van Pelt Fire Trucks, 238 NLRB 794 (1978), for the proposition that an .employee such as Rosen: has an alternative other than quitting; that. seek redress .through the Board's processes. However, given the amount of time which inevitably elapses before an- unfair labor practice charge is,resolved, Rosen could not look forward to a' swift palliative for her physical and' emotional reactions Rosen had no real options here. As .long as she remained in an atmosphere where no amount of 'effort on her part would satisfy those who controlled her working conditions, she continued to, ,ex- penence symptoms which she reasonably attributed to work-related stress. While the Board imposes a "reasona- ble person". standard in determining whether conditions are objectively onerous or _merely unpleasant, 14 it does not insist that the reasonable employee be a stoic. See, e.g , Pinter Bros., 227 NLRB 921, 938-939 (1977), Zinke Foods, 185_ NLRB 901, 906 (1970). If Dorothy Freel, who did ,not work with Rosen on a daily basis, could" during one brief, episode in Mazzacane's office observe her discomposure, then Mazzacane,and Kalkreuth had to be aware that their actions were causing her considerable distress. Consequently, Respondent must be. held , ac- countable for creating conditions which clearly signaled to Rosen that she was no longer wanted. No reasonable employee_ is expected to continue working , under the Conditions ,such. a those created by Respondent. .,See. General Meals, 247 NLRB 1036, 1038740 '(198'0); W.. T Grant Co, 195 NLRB 1000, 1608-09 (1972); Zmke Foods, supra. Accordingly, becau§e _I 'find that Rosen tendered her resignation under compulsion, it follOws , that, her ter- Mination Must be, regarded as a constructive diScharge . , CONCLUSIONS OF LAW . 1. Respondent Hospital of St. Raphael is an employer A within the meaning of 'Section 2(2) of the ct, engaged in commerce within the meaning of Seen& 2(6) and (7) of the Act, and a health dare institution within the mean- ing of Section ,2(14) of the Act. 2. New England 'Health Care Employees Union, Dis- trict 1199, is a labor organization within the meaning of Section 2(5) of the Act. '3. Respondent violated Section 8(a)(1) of the Act by issuing to Sandra Rosen two , adverse employee perform- ance appraisals, denying her an annual . merit wage in-- crease and earlier summer working hours' in retaliation for her engaging in protected 'concerted activities. 4. Respondent has violated Section 8(a)(1) -of the Act by discharging Sandra Rosen on October 9, 1981, and by failing and refusing to reinstate her at all times thereafter. 5. The aforesaid unfair labor practices affect commerce within 'the meaning of Section 2(6) and (7) of the Act 6. Respondent did not violate the Act by 'revising ROsen's work schedule nor by issuing a Written warning' to her THE REMEDY Having found that Respondent's conduct violated See-1 tion 8(a)(1) of the Act in that it was designed to retaliate against Sandra Rosen for engaging in protected concert-_ ed activities, I shall recommend that Respondent be re- quired to cease and desist therefrorn and from' engaging in any like or related conduct hereinafter. In addition, in order to effectuate the policies of the Act I shall reco .m- mend affirmatively that Respondent be' required to offer Sandra Rosen immediate reinstatement to her former job' or if that job no longer exists; to a substantially equiva- lent position, without prejudice to her seniority or other rights and privileges previously enjoyed and to make her whole' for any loss of pay, she may have Suffered by reason of her' discharge by paying to her a sum of money equal to that which she would have earned but for her discharge from October 9, 1981, to the date'of an offer of reinstatement, less any net earnings during this period, to be computed in the manner described in F. W. Wool- worth Co, 90 NLRB 289 , (1950), with interest 'as pre- schbed in Florida Steel Corp., 231 NLRB 651 (1977), and Isis Plumbing Co, 138 NLRB 716 (1962) Respondent will' preserve and Make available to the Board on request all records' necessary :and useful to determining the amount of backpay due under the terms of this decision. In addition, I shall recommend that ResPondent be re- quired to rescind and expunge , Rosen's adverse perform- ance appraisals from her personnel file and, also, to pot appropriate notices. ' ' [Recommended Order omitted from publication.] of the evidence that Respondent would not have retaliated against Rosen, in the 'absence of her uniorractivities, a violation of Sec - 8(a)(3) does not properly he here • violative Of Section: 8(a)(1) of the Act.15 • • 14 Hit 'A'Rutt Food Stores, 231 NLRB 660, 666 (1977) 15 The complaint alleges that Respondent's Conduct toward ROsen was motivated by her union activities in 'violation of Sec 8(a)(3) of the Act There is without doubt some evidence of union ammus •here. and one can safelyassume that Respondent would be happy to rid itself of a principal union proponent Therefore, it is difficult for the trier of fact, as it must have been for the Respondent, to regard Rosen's participation in' the gneVinCe process as severable from her role as a key union activist However, since the Board has rejected an in part" test of motivation in Wright Line, supra, and the record does not establish by a preponderance_