Sierra Hospital Foundation

SIERRA HOSPITAL ,FOUNDATION Sierra Hospital Foundation and United Food and Commercial Workers Union , Local 1288, United Food and Commercial Workers International Union, AFL-CIO-CLC. Case 32-CA-3001 28 February 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 11 January 1982 Administrative Law Judge Jesse Kleiman issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering brief. 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, I and conclusions only to the extent consistent with this Decision and Order. The judge found that the Respondent by its di- rector of nursing, Beth Nichols, violated Section 8(a)(1) of the Act by coercively interrogating union activist Marcia Cory about her union sympa- thies and the union activities of others, by telling Cory that her union activity was disruptive and or- dering her to cease such activity, by creating the impression that its employees' union activities were under surveillance, and by threatening to refuse to bargain in good faith should the Union be selected as the employees' representative. The judge also found that the Respondent violated Section 8(a)(3) and (1) of the Act when, on 11 August 1980, Nich- ols imposed disparate reporting and timekeeping re- quirements on Cory in an attempt to inhibit and interfere with Cory's union activities. The Re- spondent excepts to each of the unfair labor prac- tice findings made by the judge. As discussed below, we find in agreement with the judge that the Respondent unlawfully threatened to refuse to bargain in good faith, interrogated Cory about her union sympathies, and created the impression that i The Respondent has excepted to certain credibility findings made by the judge In support of this exception the Respondent asserts that the judge improperly relied on a memorandum purportedly distributed by the Respondent, but which was never introduced into evidence The Board's established policy is not to overrule an administrative law judge's credi- bility resolutions unless the clear preponderance of all the relevant evi- dence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have careful- ly examined the record and find no basis for reversing the findings The memorandum referred to by the Respondent was relied on by the judge to reinforce his conclusion that the Respondent bore animus toward its employees' union activities In this regard, the record evidence amply supports the conclusion that the Respondent's director of nursing, Beth Nichols, personally bore such animus, and her admission of this on cross- examination buttresses the judge's resolution to discredit her contrary tes- timony on this issue Inasmuch as Nichols is the official alleged to have committed the unfair labor practices in question and whose credibility is in dispute, we find the judge's partial reliance on evidence outside the record to be a harmless error in evaluating Nichols' credibility 427 its employees' union activities were under surveil- lance. We further find, contrary to the judge and in agreement with the Respondent, that the Respond- ent did not unlawfully impose disparate working conditions on Cory, interrogate Cory about the union activities of others, or instruct Cory to cease engaging in lawful organizing activities. The judge found, and we agree, that the Re- spondent unlawfully created the impression that its employees' union activities were under surveillance when, on 4 August, Nichols told Cory that she knew that there had been a union meeting attended by 25 nurses from various units in the hospital, and again on 11 August when Nichols stated to Cory that she knew that nurses Phillips, Green, Haskins, and Stone were involved in the organizing cam- paign. We agree with the judge's assessment that such statements, showing such specific knowledge of employee organizing activities, suggest that the Respondent was engaged in surveillance.2 We fur- ther agree with the judge's finding that the Re- spondent unlawfully threatened to refuse to bargain in good faith when Nichols stated on 11 August that the hospital's administrator would not agree to anything the Union asked for in negotiations, and that there would have to be a strike. Finally, we agree with the judge's finding that the Respondent engaged in an unlawful interrogation when Nichols asked Cory on 11 August why she felt so strongly about having a union at the hospital. This question was not an isolated inquiry but occurred in the context of the other unlawfully coercive statements found above, thereby conveying the message that the Respondent was displeased with Cory's union sympathies. 3 We do not agree with the judge's finding that the Respondent unlawfully interrogated Cory about the union activities of other employees. As noted above, Nichols stated to Cory at the 11 2 Chairman Dotson would not find these statements to be unlawfui under the circumstances presented in this case The Chairman notes that the organizing activity was common knowledge and was discussed openly throughout the facility He also notes that Nichols informed Cory that she had been told about the organizing campaign, that she had re- ceived complaints about it from other employees, and that she had been told about the union meeting Accordingly, the Chairman finds that Nichols' reference to that meeting was not calculated to imply that the Respondent was surreptitiously watching its employees' union activities and would not reasonably have given that impression to Cory. See Shera- ton Plaza La Riena Hotel, 269 NLRB 716 (1984), Pedro's Restaurant, 246 NLRB 567 (1979) Similarly, the Chairman finds that Nichols' statement that she knew that certain other employees were involved in the organiz- ing campaign would not reasonably tend to create the impression of sur- veillance given the fact that the employees' activities were open and common knowledge throughout the hospital and had been the subject of complaints to Nichols a In finding this unfair labor practice, Member Hunter and Member Dennis put no reliance on the judge's citation to Gossen Co, 254 NLRB 339 (1981), which was disapproved of in Rossmore House, 269 NLRB 1176 (1984) Chairman Dotson would not find this question to be unlaw- ful 274 NLRB No. 56 428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD August counseling session that she knew that cer- tain other employees were involved in the organiz- ing campaign and we have found in agreement with the judge that this statement unlawfully cre- ated the impression of surveillance. However, we do not agree with the judge's further conclusion that this statement was also an unlawful interroga- tion. The judge's finding is based on his conclusion that Nichols' statement was designed to elicit a re- sponse from Cory to confirm her suspicions about the other employees. The record does not support this conclusion. It is undisputed that Nichols was well aware of the union activities which were openly taking place in the hospital and there is no basis in the record to infer that she was asking Cory to divulge information about those activities. Accordingly, we conclude contrary to the judge that Nichols' statement, even in the context of the other unlawful statements made by Nichols at the counseling session, was not an attempt to gather in- formation and cannot support a finding of unlawful interrogation. Similarly, we do not agree with the judge's finding that Nichols' statement that Cory was a disruptive influence and her request that Cory cease disrupting the staff during working hours were unlawful. Contrary to the judge we cannot conclude that by these statements Nichols was attempting to interfere with Cory's lawful off- duty union activities. While Nichols may have be- lieved that all of Cory's union activities were dis- ruptive, her comments were clearly directed only to Cory's on-duty conversations with other em- ployees and the judge's opinion as to her subjective beliefs is of no consequence. Indeed, Cory admitted that Nichols told her that she had the right to so- licit during breaktime and off-duty hours and that she would no longer be a disruptive influence if she ceased talking union while on duty. Accordingly, we conclude that the Respondent's attempt to con- trol only Cory's unprotected worktime activities was not unlawful 4 4 Member Dennis agrees with her colleagues that Nichols ' statement to Cory about other employees' union activities was not an unlawful inter- rogation, but in so finding, she does not rely on the alleged openness of the union activities Rather, Member Dennis finds that Nichols' state- ment, in context, did not call for an answer Compare Asociacton Hospital Del Maestro, 272 NLRB No 132 (Oct 19, 1984) Contrary to her colleagues, Member Dennis would find unlawful Nich- ols' statements that Cory's union activities were "disruptive " and that Cory should cease them The "disruptive" activities remarks were made during the same l1 August 1980 "counseling session" for Cory in which other unlawful statements were made Like the judge, Member Dennis would find that Nichols did not adequately confine her remarks about disruption to Cory's union activities while she was on duty The record shows that Nichols viewed the entire union campaign as "disruptive," and her instruction to Cory that she cease all activities that were "disrup- tive" was unlawfully broad Unlike the judge, Member Dennis does not rely on Cory's subjective state of mind Finally, we agree with the Respondent that it has established legitimate and lawful reasons for the reporting and timekeeping requirements which Nichols imposed on Cory at the 11 August coun- seling session . Cory admitted that it had been her practice since she had taken over as emergency room coordinator to report to the nursing office at the beginning of her shift and she further admitted that she had abandoned this practice prior to the 11 August counseling session . Accordingly, we con- clude, contrary to the judge, that reporting in was not a newly imposed requirement but was consist- ent with past practice, and that the Respondent es- tablished that it had a legitimate business need to have its emergency room coordinator contact her supervisors before beginning her work shift. Simi- larly, we find, contrary to the judge, that the re- quirement that Cory keep a record of the hour that she took her dinner break was consistent with ex- isting hospital policy. In this regard Cory acknowl- edged that day nurses had always been required to record their dinner break on their timecards and admitted that she had not consistently done so since becoming the emergency room coordinator. The fact that she was engaged in union activities at this time does not insulate Cory or detract from the hospital's legitimate need to have its rules followed by all employees and there is no evidence that this rule was applied selectively to Cory. Finally, we find, contrary to the judge, that the Respondent had a legitimate interest in requesting that Cory keep a record of when she took her breaks and that this requirement did not inhibit Cory' s lawful union activities. Nichols' undisputed testimony shows that she had been receiving complaints about Cory's breaktimes and that she asked Cory to keep a record of her breaktimes so that the Respondent could verify that Cory was not abusing the inde- pendent nature of her position as emergency room coordinator. While the issue concerning Cory's use of breaktimes may have arisen only as a result of her union activities, the hospital' s legitimate request was not intended to and did not interfere with Cory's lawful union activities since Cory was still free to take her breaks at any time that was con- venient to her and there were no restrictions on how or where she spent her breaktime so long as she kept a record of the time on her timecard. Ac- cordingly, we conclude that the Respondent has not violated Section 8(a)(1) and (3) of the Act as specified above and we shall therefore dismiss those portions of the complaint.5 5 Contrary to her colleagues, Member Dennis would affirm the judge's findings and conclusions that the Respondent violated Sec 8(a)(3) and (1) by placing stricter and disparate reporting and timekeeping requirements on Cory SIERRA HOSPITAL FOUNDATION 429 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Sierra Hospital Foundation, Fresno, Cali- fornia, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modi- fied. 1. Substitute the following for paragraph 1(c). "(c) Coercively interrogating an employee con- cerning her union sympathies." 2. Delete paragraph 1(d). 3. Substitute the following for paragraph 1(e) and reletter as 1(d). "(d) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them under Section 7 of the Act." 4. Delete paragraph 1(f). 5. Substitute the attached notice for that of the administrative law judge. APPENDIX 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 violated 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, ,loin, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT do anything to interfere with, re- strain, or coerce you with respect to these rights. More specifically, WE WILL NOT create among our employees the impression that their union activities are under sur- veillance. WE WILL NOT threaten or warn our employees that we will not agree to improvements in working conditions, thereby in effect refusing to bargain in good faith with the Union absent a strike, and that it would be futile for our employees to select the Union as their collective-bargaining representative. WE WILL NOT coercively interrogate you con- cerning your union sympathies. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act SIERRA HOSPITAL FOUNDATION DECISION STATEMENT OF THE CASE JESSE KLEIMAN, Administrative Law Judge. Upon a charge filed on August 21, 1980, by United Food and Commercial Workers Union , Local 1288, United Food and Commercial Workers International Union, AFL- CIO-CLC (the Union) the General Counsel of the Na- tional Labor Relations Board , by the Regional Director for Region 32, Oakland , California, duly issued a com- plaint and Notice of Hearing on September 18, 1980, against Sierra Hospital Foundation (the Respondent) al- leging that the Respondent engaged in certain unfair labor practices within the meaning of Section 8(a)(1) and (3) of the National Labor Relations Act. On September 29, 1980, the Respondent, by counsel , duly filed an answer denying the material allegations in the complaint A hearing was held before me in Fresno , California, on March 17, 1981 At the close of the General Coun- sel's case the Respondent moved to dismiss the complaint for failure of proof. I denied this motion . All parties were afforded full opportunity to appear , to introduce evidence, to examine and cross-examine witnesses, to argue orally on the record, and to file briefs . Thereafter, the General Counsel and the Respondent filed briefs. In its brief the Respondent "recommended that the case be dismissed." For the reasons appearing hereinafter I deny the Respondent's recommendation to dismiss the com- plaint in its entirety. On the entire record and the briefs of the parties, and on my observation of the witnesses , I make the following FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent, at all times material herein, has been a corporation organized under and existing by virtue of the laws of the State of California, maintaining its princi- pal office and place of business in Fresno, California, where it is, and has been at all times material herein, continuously engaged in the operation of a hospital hos- pital and in providing and health care services and relat- ed services as a private not-for-profit health care institu- tion In the course and conduct of the Respondent's busi- ness operations during the preceding 12 months, these operations being representative of its operations at all times material herein, the Respondent derived gross rev- enues therefrom in excess of $250,000 and purchased and received goods or services valued in excess of $50,000 in interstate commerce directly from States of the United States other than the State of California The complaint alleges, the Respondent admits, and I find that the Re- spondent is now, and has been at all times material 430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD herein, an employer engaged in commerce within the meaning of Section 2 (2), (6), and (7) of the Act. 11. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the Respondent admits, and I find that United Food and Commercial Workers Union, Local 1288, United Food and Commercial Workers International Union, AFL-CIO-CLC is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. dente herein Cory and night shift nurse supervisor Verda Packard and assistant night shift nurse supervisor Jolene Olsen did not get along and during Cory's tenure as a staff nurse (November 1977 through May 1980) vari- ous incidents occurred between them4 which resulted in Cory registering complaints about Packard to Beth Nich- ols, Sierra Hospital's director of nursing,5 and to Cory's immediate night shift nurse supervisor at the time, Sally Ryland6 on the one hand , and the "counseling"7 of Cory by Nichols and Ryland , on the other. 8 III. THE UNFAIR LABOR PRACTICES The complaint alleges that the Respondent violated Section 8(a)(1) and (3) of the Act by creating the impres- sion that it was engaged in surveillance of its employees' union activities; by telling its employees that selection of the Union as their collective-bargaining representative would be futile as the Respondent "would not agree to improvements in working conditions absent a strike"; by telling an employee that she was a disruptive influence because she engaged in union activities and instructed her to cease such activities; by interrogating an employee concerning her reasons for supporting the Union, and by imposing stricter and disparate working conditions on its employee Marcia Cory by requiring her to report to the director of nursing daily at a fixed hour and to keep de- tailed records of her work stations during work shifts, all because the employees joined or assisted the Union or engaged in other concerted activities for the purposes of collective bargaining or other mutual aid or protection. The Respondent denies these allegations. A. Background The Respondent operates a hospital in Fresno, Califor- nia, employing therein approximately 64-65 registered nurses. "Mr. Rowe" is the "head" of the Respondent, Sierra Hospital Foundation, "Mr Berg" is the adminis- trator of Sierra Hospital,' and Beth Nichols is the Hospi- tal's director of nursing. The General Counsel alleges, the Respondent admits, and I find that Nichols is a su- pervisor within the meaning of Section 2(11) of the Act, and has been and is now an agent of the Respondent acting on its behalf.2 Additionally, the parties herein stip- ulated that Kathy Etcheverry, the Hospital's assistant di- rector of nursing and in-service director, is a supervisor within the meaning of Section 2(11) of the Act. B. The Evidence Marcia Cory commenced her employment at Sierra Hospital in the early part of November 1977 as a night- shift staff nurse in the Hospital's intensive care and criti- cal care units 3 According to the uncontradicted evi- i Sierra Hospital is also referred to herein as the Hospital z From the record it is reasonable to infer that Rowe and Berg are managerial employees and/or supervisors as defined by the Board and the courts (case law) and/or within the meaning of Sec 2( 11) of the Act, respectively 8 Cory testified that she began her employment with the Respondent on November 7, 1977 Beth Nichols, who became the Respondent's direc- tor of nursing in November 1977 testified that both Cory and her close friend staff nurse Maureen Phillips were hired together on November 3, 1977, by Sierra Hospital's former acting director of nurses Cory testified that on one occasion, sometime in 1978, Packard un- fairly accused her and Phillips of giving employee Susan Wellborn "a bad time" since Wellborn had complained about this and had threatened to quit her job at the Hospital, and told them to stop whatever they were alleged to be doing to Wellborn 5 Nichols testified that Cory had discussions with her in which Cory registered unhappiness with Packard 's lack of leadership as a nurse super- visor She also testified that on one occasion Cory and other night-shift employees had complained to her about Packard and Olsen with Cory alleging that they were "collaborating together " against her, and Nichols had called Packard and Olsen into the discussion "to put an objective light on whatever it is " 6 Ryland testified that Cory and Olsen did not get along and both had complained to her about each other She also related that Cory had com- plained about Packard's not providing adequate supervision or appropri- ate relief at lunchtime Ryland added that Cory and Maureen Phillips on one occasion registered their belief to her that Packard "couldn 't handle the patient" when a patient became "abusive and quite agitated" and Ryland had been summoned to the patient's room 7 According to the evidence herein "counseling " is a procedure in which an employee and his or her immediate supervisor discuss problem areas in the employee 's job performance setting goals to improve or re- solve these problems A written record of the counseling session is placed in the personal files of nursing department employees which are kept in that department's office and are separate from the employee's personnel record files located in the Hospital 's personnel office (R Exh 7) Counsel- ing is not a part of the Respondent's disciplinary procedure , rather it is a part of the Respondent's employee evaluation process used for purposes of performance improvement and for promotion and ment raises 8 Sally Ryland , currently employed as a staff nurse at Sierra Hospital and previously employed there as the night -shift supervisor of the critical care unit from 1970 to August 1, 1980, testified that Cory was one of her staff nurses during this period and sometime in February 1979 Ryland had counseled or admonished Cory for leaving the Hospital under the following circumstances as culled , in substance , from the testimony of Ryland, Nichols, and Cory herself Cory had agreed to work an additional evening in February 1979 al- though it was her scheduled night off and finding upon arrival at the hospital that she was assigned to work on "the floor" or in a unit being supervised by Joleen Olsen instead of her usual assignment in the Critical Care Unit , protested this to Lucy Beal, the "p m super- visor" as being unfair, since Cory was working the extra shift and there were other nurses who could be assigned to work with Olsen After Beal discussed this with Olsen, Olsen told Cory that the as- signment would stand and if Cory didn't like it she could leave Whereupon Cory left the hospital without completing her work shift Ryland stated that after Nichols brought this incident to her attention the following morning, since she had not been on duty that particular evening, she spoke to Cory about it Ryland related that she told Cory that she was suprised Cory had left the patients with Olsen because Cory was "by far the superior nurse" and that her behavior was inappropriate and this should never happen again Ryland added that Cory said there would be no repetition of such action ever again Concerning this Nich- ols testified that she also counseled Cory concerning the incident Ryland additionally testified that when she had been advised by Nich- ols of Cory's action in leaving the Hospital she was prepared to fire Cory and said so but that Nichols "talked me out of it because she said that there were extenuating circumstances and she did feel that Marcia had come in on her night off SIERRA HOSPITAL FOUNDATION Cory continued that sometime in mid-July 1979, she had gone to Nichols' office to complain about Packard's failure to fairly apportion "weekends off," favoring other employees over her. According to Cory, Nichols told her during this conversation that Packard had on prior occasions related to Nichols that, . . . my father had been an organizing director here in Fresno for the Retail Clerks and that my brother was also a union organizer in Sacramento and that Mrs. Packard had told her at different times that she should get rid of me because I would probably prove to be trouble at some time in the future. Cory stated that Nichols mentioned that "Sierra was one big happy family and that we didn't really need a union here," to which Cory responded "that our problems weren't that big as other hospitals, certainly, and that maybe we didn't need a union."9 Cory added that Nich- ols told her that she would be getting her "weekends off' and agreed that "Mrs Packard perhaps wasn't that desirable of a person " Cory testified that she also complained to both Nichols and Ryland about probems she was having with Maur- een Phillips, a fellow staff nurse in the intensive care unit. Cory related that she and Phillips had been good friends but that she was "getting the harder assignments and pulling more than my share of the work," at first saying nothing about this because of their friendship and trying to resolve the problem herself by dividing up the patients more evenly. She continued that, sometime in July 1979, while working in the intensive care unit with a "very ill patient" she needed assistance because the pa- tient was comatose and she requested Phillips' aid over the intercom. Cory stated that instead of coming to her assistance Phillips and a "monitor tech" "taunted" and "teased" her saying, "Oh, look at Marcia do things. She doesn't need any help. She does such a good job." Cory added that when she ran out of suction catheters, since the patient required suctioning and "started turning blue," she went to the door of the patient's room and asked the monitor tech "to please go and get some suc- tion catheters" whereupon Phillips negated the request unless Cory would say, "pretty please." Cory recounted that she then returned and improvised tubing for the pa- tient's suctioning until a respiratory therapist making rounds provided her with the catheters. According to Cory she then "stopped speaking" to Phillips at all. Concerning Cory's relationship with Phillips and its effect on other Hospital employees, Sally Ryland testi- fied that after Cory and Phillips returned from a Europe- Cory testified that her father had been the "Southwest Regional Co- ordinator for the Retail Clerks International" and her brother was cur- rently employed as "an organizer for one of the locals Retail Clerks in Sacaramento [California] " Concerning this Nichols denied that she had ever told Cory that Packard recommended her discharge because of her family's union affiliations In fact, Nichols testified that it was Cory herself who first advised her of Cory's family union ties Nichols related that sometime in the early part of 1978 Cory told her "that she was raised in a strong union family and she believed strongly in the unions and that her brother was in the union , but this hospital didn't need it because I kept an open door, and [I ] was easy to talk to and we had a grievance procedure that would handle people's grievances" 431 an vacation together Cory had become ill necessitating her taking frequent sick leave. She spoke to Cory about her absences preferring that Cory take time off to fully recover rather than to intermittently take days off here and there Ryland related that shortly thereafter Cory visited her at her apartment to discuss a "personal prob- lem" at which time Cory told her about having problems with Phillips which started in England and carried back to the hospital, including the above incident, and request- ed that she and Phillips be separated during working hours 10 Ryland continued that she then spoke to Nich- ols about the problem and Nichols agreed that, since both Cory and Phillips were good nurses, Ryland should try to separate them regarding work schedules and shifts. i l She added that this worked out well until until Cory complained to her that Phillips had come to the critical care unit where Cory was working at the time and "bothered" her Ryland stated that when she ques- tioned Phillips about this Phillips responded that she had only wanted to ask Cory how she was getting along be- cause she was worried about her physical condition and because Cory had stopped speaking to her. Ryland ad- vised Phillips to stay away from Cory and not to do this anymore. 12 Cory related that sometime in November 1979 she told Nichols about the problems she was having with Phillips because other staff employees at the hospital were taking sides between them after she and Phillips stopped work- ing together and she ceased speaking to Phillips. She added that there was "a lot of talk . . . behind my back" about the incident involving the suction catheters and she asked Nichols to help resolve the problem since "there was a lot of separation in the staff over this . . . just a lot of negativism going around." However, Cory denied that she discussed her personal problems with Nichols on a regular or frequent basis asserting that she could recall only once having telephoned Nichols at home to discuss the possibility of her working a 12-hour shift. 13 to Ryland testified that she spoke to Phillips and the "monitor tech" involved in the incident but they denied its occurrence l i Ryland testified that it was common knowledge at the Hospital that Cory and Phillips were having problems and this was causing "confu- sion" and "disruption" among the hospital staff with employees "taking sides" and Ryland had to speak to the nursing staff under her supervisor "to calm them down " 12 Ryland testified that Cory often discussed personal problems with her including other problems with Phillips, complaining to Ryland that she had loaned her credit card to Phillips for the purchase of a refrigera- tor and Cory believed that Phillips would refuse to pay for it Ryland also related that Cory had telephoned her to say that she was afraid that Phillips and her husband, who occupied the next apartment to Cory's, were going to do her bodily harm, "shoot her," and she was afraid to remain in her apartment Ryland advised Cory to obtain therapeutic help which Cory did at Sierra Hospital Ryland added that being concerned about Cory's physical condition she asked Dr Froese, who was treating Cory, about this and he advised her that he did not feel there was any- thing physically wrong with her Cory confirmed that she often spoke to Ryland about her problems both personal and those affecting the Hospi- tal is Nichols testified that Cory often discussed her personal problems with her at times calling her at home while at other times discussing them with Nichols at the Hospital She stated that Cory complained to her about Phillips on several occasions , in one instance alleging that she Continued 432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Cory testified that on April 16, 1980, she applied for the newly created position of "Emergency Room/- Recovery Room Coordinator" (coordinator) after it was posted for filling at the hospital 14 Cory related that thereafter, on April 21, 1980, she was admitted to Sierra Hospital for knee surgery and during her stay at the hos- pital was visited by Nichols to see how she was getting along 1-1 Cory stated that she was released from the hos- pital on or about April 24 or 25, 1980, and remained at home for a time to recuperate According to Cory, Nich- ols and Nurse Supervisor Killburn telephoned her at home during the last week in April or the first week in May 1980 to advise her that she had been appointed to the "Coordinators" job and Cory returned to work on May 12, 1980, in this new position 16 Concerning this Nichols testified initially that when Cory delivered her formal letter of application for the coordinator's position dated April 16, 1980, presumably on April 17, 1980,17 they discussed the duties and goals of this job at length and Nichols then advised Cory that she would select the most qualified candidate to fill the position. Nichols then testified that Cory came to see her on April 21, 1980, to apprise her that she was entering the hospital for knee surgery which was to occur on the following day, "and we discussed the whole thing" in- cluding the duties of the coordinators job, with Nichols now alleging that she had previously given Cory a copy of the job description of this position to take home and read. 1 s Nichols related that during their discussion of the duties and goals of the job she instructed Cory to discuss with her, albeit at some unspecified later date, the ideas for upgrading or improving nursing care at Sierra Hospi- tal to benefit the Hospital, the patients, and the nursing staff which Cory had made passing reference to in her job application letter She added that she also advised Cory to meet with Assistant Director of Nursing Kathy Etcheverry in order to implement a "pre-op teaching was afraid that Phillips' husband was going to shoot her whereupon she requested Phillips ' discharge Nichols added that she advised Cory that Cory should not allow her personal problems to interfere with the per- formance of her nursing duties on the job 14 Nichols testified that this position was created because of complaints by doctors, anesthetists, and the hospital administrator concerning the lack of adequate care being given to postoperative surgery patients Nich- ols added that since nurse coordinator would also assume relief duties in the critical care unit and on the "hospital floor" when her duties attend- ing to the surgery patients permitted it, the job was not assigned to any specific department at the hospital but instead was placed directly under Nichols' supervision as director of nursing She continued that Cory and "one or two" other nurses applied for the job in April 1980 and she chose Cory to fill it as the best qualified applicant Nichols added that she had made the decision to appoint Cory to the coordinator position sometime in late April 1980 Is Cory testified that during the visit there was no discussion between her and Nichols about her application for the coordinator's job 16 Cory's duties as coordinator were "to take care of any Emergency Room [or Recovery Room] patient relieve in [the critical care unit]" and perform nursing duties throughout the Hospital as needed and as re- quested by the director of nursing, Nichols It is admitted that Cory's duties in this job required her presence at various times in the emergency room, recovery room , critical care unit, intensive care unit, and on the "2nd or 4th floors" of the Hospital 11 See R Exh 2 which has thereon Nichols' initials and the date April 17, 1980 18 Nichols testified that Cory had requested a copy of the coordina- tor's job description sometime between April 17 and 21 , 1980, and Nich- ols had given a copy to her idea" which Nichols had formulated 19 Nichols addition- ally alleged that she had instructed Cory to keep a record of the time she spent in the various departmental units at the Hospital such as, ICU, CCU, emergency room, etc , since this was required for budget preparation and the allocation of funds to the proper department and for "cost reports over in the main foundation." Nichols indicated that she believed she told Cory of her appoint- ment to the coordinator position at that time because both her signature and Cory's appear on the job descrip- tion which is dated April 21, 1980, and she never dates a document until all the parties involved have signed it 20 Nichols added that she advised Cory that she would not "post" the formal announcement of Cory's appointment to the new position at the Hospital until Cory was ready to return to work after recuperating from her operation According to Nichols she telephoned Cory at home after the operation to find out how Cory was progressing and when she would return to work Cory told her she would be returning on or about May 8, 1980 Nichols then "posted" the announcement of Cory's appointment to the coordinator's job at the Hospital on May 5, 1980 According to the evidence herein the Union com- menced its organizing campaign among the Respondent's employees in July 1980. Cory testified that previous thereto she and other nurses "on the committee" had dis- cussed the possibility of representation by various unions and because of her family's "affiliation" with the "Retail Clerks International Union" it was decided to contact Local No 1288, the Union herein. Cory cor'tmued that after "the committee" contacted the Union there were "eight to twelve" nurses who assumed leadership roles in the campaign, including herself, with Cory becoming the "liaison with the union's office here in Fresno." Cory stated that the nurses were seeking a unit of "RN's" (reg- ister nurses), and that their organizing activities consisted in soliciting the signatures of fellow nursing department employees on union authorization cards to achieve a ma- jority so that an election could be secured. She added that she conducted her activities in soliciting the card signatures both "away from the hospital" personally and by telephone, and at the Hospital when the employees were off duty and while she was on breaks in the cafete- ria and around the Hospital Cory related that there were several meetings held at the Union's office in Fresno, the largest of which, held on July 30, 1980, involved "about 19 The "pre-op teaching" program as envisioned by Nichols includes "educating" patients who are scheduled for surgery as to what to expect during and after their operations 20 However, Cory denied that she had been advised by Nichols of her appointment to the coordinator's position on April 21, 1980 She stated that she entered the hospital as a patient on April 21 , 1980, preparatory to her scheduled knee operation on April 22, 1980, and did not know at the time that she had been appointed to the new job She testified that the first time she ever saw a copy of the job description was after she returned to work on May 12, 1980 , and commenced her new duties, whereupon "Mrs. Frazenna, a night nurse supervisor," showed her a copy thereof in the Hospital 's organizational manual Cory also denied having signed the job description until after the "counseling session" on August 11, 1980, more about which will appear hereinafter Cory addi- tionally denied that she had complained to Berg, the hospital administra- tor, that she had never seen the job description, explaining that what ac- tually happened concerning this was that she told Berg that she and Nichols had never discussed the duties of the coordinator's job SIERRA HOSPITAL FOUNDATION 25 people" including nurses assistants , LVNs (licensed vocational nurses), and RNs employed at Sierra Hospital She recounted that the Union 's representative at this meeting explained that there would be separate bargain- ing units for various types of employees at the Hospital, j e., nurses would be included in their own bargaining unit composed solely of RNs. What Occurred on August 4, 1980 Cory testified that on August 4, 1980, while she was working in the Hospital's emergency room, Beth Nichols came in and said to her, "I heard the rumor that you're trying to get a union in here at Sierra Hospital and I said that Marcia wouldn't do that." Cory stated that after she admitted that this was true and that she was "not acting alone" Nichols told her, . that she knew that I was intelligent and I was smart and that she was told she should get rid of me, but that she told them that I'm not management and that I had a right to do what I was doing . . She then went on to tell me that she knew my background had prepared me for this and that she told them that I wasn't going to get caught doing anything on Company time . . And then she went on to say that she was told we had a meeting the other day and that there were 25 people there from various departments Cory continued that she told Nichols that she "was aware of the laws and how it affected both she and I" and assured Nichols that "I was not going to do any- thing illegal and that I would not do anything on Com- pany time." Cory added that Nichols remarked that she had been told that Cory "was doing this just to get to her personally" and Cory responded that "there was nothing personal in it between her and I and that I was basically just looking out for my own rights as well as my fellow employees " According to Cory, Nichols and she continued this conversation, going on to "lighter talk" and then Nichols said, "Keep up the good work," and left the emergency room 21 Nichols' version of the conversation in the emergency room on August 4, 1980, between her and Cory although generally similar in nature to that given by Cory differed in some material aspects thereof. Nichols testified that Cory had not been in to report to her regarding the co- ordinators job for "quite a while" and when Nichols ob- served her working in the emergency room, went in to speak to her, "I was walking by and it was a spur of the 21 On cross-examination Cory was asked, Q Isn't it really true that during this conversation she was inform- ing you of the proper manner and the proper times to do your solic- iting, if you were doing your soliciting, in the proper places so as not to disturb any people that might be engaged in direct patient care" A Do I think that" Q Well, isn't that, in fact, what she said" A I guess that is what she said, yes Q And didn't she tell you that if you were soliciting during your non-working time, that that was fine and it was your right to do that but that you shouldn't be soliciting during work time or disturbing other people who were supposed to be working A Yes 433 moment "22 Nichols stated that she told Cory, "You haven't been near the nursing office," and Cory said that she had been busy and had lots of things to do. Nichols related that she then told Cory, I have been flooded with nurses that are calling me up and telling me that "Marcia's union is running rampant all over-the hospital" and that they are causing pressure and the staff is dividing between the pros and the cons and then there's the ones that are in between that are all upset that they're getting pressured There's some that are reporting that you are passing cards on duty. Nichols continued that after Cory denied doing "any- thing like that," and asserting that she knew "all the rules and regulations," Nichols then said, I know you do because you and I have discussed that you have come from a union family and you would know all the rules and regulations, but I feel like it's my duty to inform you that you can pass cards downstairs on your break, and any place else, but you cannot do it on duty. Nichols added that Cory now shook her finger at her and said, "You can't stop me doing anything," which ended the conversation and Nichols then left the emer- gency room 23 Nichols denied that she mentioned anything to Cory in this conversation about "a union meeting that might have occurred." She testified that, "I didn't even know about it." She also denied telling Cory that she knew who was involved in the Union. Nichols related that the employ- ees who had called her to complain about Cory's activi- ties additionally named other employees who were also engaging in alleged disruptive and intimidative conduct. The Counseling Session on August 11, 1980 Cory testified that on August 11, 1980, while on duty at the Hospital "putting an IV in a patient " she was called to the intercom whereupon she was directed to immediately report to Nichols' office . Cory stated that when she entered the office, Kathy Etcheverry, the as- sistant director of nursing , was also present . Nichols now 22 Nichols also testified that she spoke to Cory on August 4, 1980, be- cause her "work was totally disrupted for weeks" prior to this date be- ginning on or about July 23, 1980, by employees, approximately 10 or 15, calling her at home "all hours of the night" to tell her that Cory had instigated the Union's organizational campaign and that Cory, "Marcia and her hoods," were "bothering" employees about the Union even when they indicated their opposition or disinterest in union representation Nichols continued that nursing assistants at the hospital particularly felt that they were "being coerced on duty" and complained to her about this because they were subject to and worked under the authority of the nurses at the Hospital Nichols related that she felt that this was "pretty serious business " Nichols added that, although she wanted to make refer- ence to the names of these employees when confronting Cory with this, the employees advised her that they did not want their names disclosed as having complained to her because they were afraid that "their tires would be slashed and all kinds of things " 29 Cory denied that Nichols had told her in this conversation that she had heard rumors that Cory was "soliciting on work time," or that Nich- ols had said that employees were complaining that she had "been disturb- ing them" during their worktime 434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD proceeded to advise her that the personal files of nursing department employees kept in Nichols' office "had been broken into . . . this is very serious stuff' and that Cory's file was one of those which was missing. Cory re- lated that she told Nichols that she was unaware of this but anyway there wasn't anything in the file except three annual evaluations According to Cory, Nichols respond- ed that there were also several other forms in her file "from when you were written up and counseled" but Cory denied ever having been written up and counseled to her knowledge. She continued that Nichols told her that Sally Ryland and Berta Packard had written her up and counseled her on occasion and that Nichols had con- firmed this with Ryland just "the other day.24 Cory added that Nichols now opened a folder which was present on her desk and "said that she had compiled a list of things that I had either been written up or coun- seled on in the past that she had recalled from memory." She indicated that Nichols allowed her to view the list at her request with Cory observing, "I recall seeing such things on there as illness, foul language , and nearly being fired once in the past."25 Cory recounted that she told Nichols that she did not agree about the "counseling" but she could not prove otherwise, and that arguing with Nichols would not "settle anything." Cory continued, We then went on to another subject and Mrs. Nich- ols told me that she was concerned about patient care at Sierra Hospital and the fact that there may be a strike. I told her that no one was talking about striking and that I also was concerned about patient care at Sierra. She said, "Well, I can tell you, Mr. Rowe won't give you anything the union asks for and you'll have to strike." I looked at her and I said, "Then what you're saying is that Mr. Rowe doesn't intend to bargain in good faith," and Mrs. Nichols replied and said, "He won't give you any- thing "26 24 Ryland testified that she made "anecdotal notes" concerning her conversations with Cory involving the various incidents set forth above and also made notes of the conversations she had with Cory about her personal problems on yellow legal sheets and had placed this material in Cory's personal file Cory testified that she asked Nichols to have Ryland brought to the office so that this could be straightened out but that this was not done 25 Cory testified that she had never before been shown or given a copy of a "counseling" form nor had she ever signed one until August 11, 1980 While Cory denied ever being counseled for using "foul lan- guage" at the Hospital she did admit that she had been counseled once for "walking off the job at the hospital," this incident having been set forth above See fn 8 Concerning the "foul language" incident, Ryland testified that on one occasion Nichols had advised her that "a patient in ICU" had complained about the language used by the nurses on duty Ryland stated that she then "counseled" all the nursing staff under her supervision about using "foul language" while on duty at the Hospital Ryland added that since Cory and Phillips were actually the nurses on duty on the evening this incident allegedly occurred, she personally spoke to them about the incident but did not write them up , "It was a verbal warning " She related that while they both denied using foul lan- guage that evening they indicated that they would be careful what they said around the patients Also see Ryland's testimony, set forth above, concerning Cory's frequent absences 26 As indicated above, Rowe is the head of the Sierra Hospital Foun- dation She added that Nichols told her that she was receiving complaints about her from various departments at the Hospital, radiology for one, concerning Cory being seen all over the Hospital and Cory said that she often was required to take patients to the radiology department from the emergency room as part of her duties.27 Cory stated that Nichols now told her that it had been reported to her that Cory's attitude was "poor " to which Cory responded that she did not feel this was correct or accurate . 28 Cory related that concerning this Nichols said that she "was intimidating the aides and . . . dis- rupting the Nursing Department . . talking union at work and . . . instigating trouble, basically." Cory testi- fied, Mrs. Nichols did tell me that she saw me down in the cafeteria with Bea Miller, who's a Nursing As- sistant, and she saw me give Bea a union card and I told her, "You most certainly did not. I'm aware who I've signed up," and that what if I had? I was on my break. Mrs. Nichols went on to tell me at that time, that she had seen me down there at 3:30 in the afternoon and that she and Kathy saw me give Bea Miller a union card and I told her I didn't, but that I wasn't aware that she was there . . and I never saw her or Kathy. She told me, "Well, you did and we saw you do this. Are you calling us liars? We saw you," and I said, "Well, I can't argue at this point with you, but I am aware of who was there at the time." She went on to tell me, then, that they also saw Jenny Adelle and Laurie Phillips in the cafeteria with me.29 Cory recounted that Nichols told her that "she knew that Maureen Phillips and Vicky Green and Syd Haskins and . . . Marge Stone were in on this with me and I told her that I didn't know about that and that I would not divulge any of this information to her."30 Cory contin- ued that Nichols now advised her that she was "being very disloyal to the Sierra Hospital," which Cory denied, asserting that her union activity was not interfer- ing with her job performance. She related that Nichols told her that "she had spent two years building up this Nursing Department and that all I was running around doing was instigating things." Cory added that Nichols "asked me why the other staff members hadn't come to her first about problems that were going on and of course I couldn't answer for those people." 27 Nichols testified that she had mentioned to Cory that the head of radiology "was wondering why Marcia was down in his department" and Nichols had told him that it was sometimes necessary that Cory bring emergency room patients "to X-ray" and that this was another reason she wanted Cory to keep records on where she was working in the Hospital, "to sort of help her " 21 According to Cory, Nichols told her that it had been reported that Cory had a "bad attitude" and when Cory asked Nichols who had said this Nichols replied, "It was hearsay, but it was up to her to investigate it " 29 Adelle and Phillips are nurses at the Hospital 30 Cory testified that when Nichols mentioned that these other em- ployees were "in on this with me" Nichols was referring to their union activities SIERRA HOSPITAL FOUNDATION Cory testified that Nichols discussed with her "three separate allegations" against her listed on a "filled-out- form," these being: failure to report to Nichols' office on arriving at Sierra Hospital for work, failure to discuss with Nichols ideas that Cory had alluded to in her letter of application for the coordinator's job to better patient care and the overall operation of the nursing department at Sierra Hospital, and "the third one was attitude."3 t Cory continued that Nichols reviewed with her a "list of goals for my improvement at Sierra Hospital, in relation to the things that I was in violation of " Cory stated, The first goal that I was asked to perform was that I was to go to the Nursing Office and report every day at 1:30 to Mrs. Nichols and the second goal was that she wanted me to keep a written record of where I was throughout my shift at all times and that I was to turn it in to her, and the third goal was simply, do not disrupt the Nursing Staff any longer. Concerning these goals Cory testified that she told Nichols that she had frequently reported to the nursing office and in many instances there was no one present therein. On other occasions she had reported her pres- ence to Harriet Vogel, Nichols' secretary, to pass on to Nichols. Cory stated that she also told Nichols that she "almost always bumped into the day supervisor within moments of being there and that someone knew when I was there." As to the second goal Cory asked Nichols how she wanted her to accomplish the recordkeeping as to where she was working in the Hospital and Nichols told her it was not necessary to list the "names and places of where I was and people who were with me, patient's names, or numbers or procedures . . . she pri- marily wanted whether I was in the Emergency Room, CCU or in Recovery."32 Cory related that she also asked Nichols how she was to meet the third goal, "which was not disrupting the Nursing Department any longer, since I hadn't felt as though I had done this anyway" and that Nichols replied, "Stop intimidating the aides,33 and don't talk union while on duty."34 Cory added that she told Nichols that "I hadn't done that anyway" but "could see that she would never have proof of that." She continued that she told Nichols that Nichols was being unfair to her and that "I didn't feel as 31 Cory was obviously making reference to a "Counseling Session" form dated 8/11/80 [R Exh 1] which lists, "Problem Areas 1-unac- counting of time for dinner and break time 2-Not putting E R , CCU, and R R time on back of time card 3-Not discussing the ideas that would be of further benefit to Sierra Hospital, its patients, and employ- ees 4/16/80 4-Attitude " This form additionally lists, "Goals 1-Report to Director of Nursing or Day Supervisor when coming on duty to see needs to be met 2- Prepare a daily statement of number of E R 's, R R , relief of CCU and how time spent 3-Refrain from disrupting nursing staff" 32 Cory denied that she had ever been asked "to keep track" of her time spent in the various units or areas of the Hospital prior to August 11, 1980 33 Nichols testified that several nursing assistant employees had com- plained that they were being pressured to sign authorization cards by being "written up for any little misdemeanor to put pressure on them " 34 Cory testified that at this meeting nothing had been said by Nichols about where she could solicit card signatures or as to when she could "talk union " 435 though these were correct," whereupon Nichols "went on to tell me, at that point, that she was doing this-she was having to do this to protect my ass." Cory continued that Nichols asked her how Sierra Hospital was supposed to recruit nurses if they had to pay a union initiation fee of "$400 or some such number" and Cory told her that this would not be a problem since it was more in the $300 range" and that this amount was not "that high." According to Cory,Nichols also asked her why she felt so strongly about having a union at the Hospital and Cory responded that the Union was needed to strenghten the employer-employee relationship and that it was important for job security and rights. ". . . I went on to say that mainly I felt that way because if we had any, this conversation wouldn't be taking place here and now the way it is." She stated that Nichols then told her that if she accomplished the goals for improvement as discussed "everything would turn out okay" and Nichols put her arm around Cory's shoulder as a gesture of friendship and said that "she had always taken me under her wings since I'd been there and that things would turn out okay if I did what I was asked to do," whereupon she left Nichols' office.35 The testimony of the Respondent's witnesses, Beth Nichols and Kathy Etcheverry, regarding Cory's "coun- seling session" on August 11, 1980, while similar in gen- eral nature to that given by Cory again substantially dif- fered in several important and material aspects. Nichols testified that in or about August 1, 1980, she decided to arrange a counseling session with Cory to "really assess the job."36 She stated that sometime prior to August 11, 1980, she had inquired of Kathy Etche- verry if Cory had contacted her about the "pre-op in- training program" and Etcheverry had advised her that they had not met to discuss this. Nichols related that on or about August 10, 1980, it had additionally been brought to her attention by her secretary that Cory had not been complying with the requirement of recording and accounting for her dinner and breaktimes although she had previously been doing so.37 She recounted that since it was her practice generally to counsel new nurse employees after 2 or 3 months on the job she felt that a counseling session with Cory who had embarked on her new job assignment as "Coordinator" approximately 3 months before would be purposeful and worthwhile. She also wanted to discuss with Cory performance areas needing improvement and the goals necessary to achieve 35 Cory testified that during the counseling session Nichols had showed her the "counseling form" which she read and then signed Cory also testified that at times Nichols had become angry, raising her voice and pointed her finger at Cory Cory admitted, however, that she had also raised her voice to Nichols during the conversation 36 Nichols testified, Well, as I had told her when she first took the job, I was going to let her have a couple of months to get the feel and the lay of the land and then all the stuff broke up and it was really my fault that I didn't get to her sooner, because I had too many interruptions with people coming in my office 31 It should be noted that Nichols' testimony concerning this on cross- examination seemed equivocal and somewhat unclear Nichols also testi- fied that her secretary had advised her that Cory was not recording her time spent in the various hospital departments 436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD this 38 Nichols added that she requested Etcheverry to attend Cory's counseling session since "I wanted her to be theie to discuss the in-service part of the pre-op pro- gram, and I wanted her to be there as a witness so that Marcia and I both would be objective and that there would be somebody there to hear what we had to say It keeps me pure." Nichols continued that therefore on August 11, 1980, she had Cory called to her office for a counseling ses- sion.39 She stated that with Etcheverry present she dis- cussed four problem areas with Cory, the first of which concerned Cory's accounting for "dinner and break times " Regarding this Nichols related that she had re- ceived numerous complaints from employees about Cory's "free reign" of the Hospital during working hours and who were alleging disparate treatment in favor of Cory 40 To resolve what appeared to be an employee morale problem, according to Nichols, she requested that Cory record the times "she went to dinner and break time." Nichols' version of what was then said went as follows: she says, "Well, Beth, you know I only take the breaks that I should," and I said, "Yes, that is true," and she said, "I don't-these are all unfair," and I said, "Well, they are saying that you are taking your break time right at 3.30 when the day shift is going off " She said, "That isn't true. I take it all times." I said, "Well, you took your break time at 3:30 yesterday," and she said, "I don't, know what time it was " I said, "Well, I do. Kathy and I were leaving the building and Kathy happened to talk to Virginia Radell, who was getting coffee and Maureen Phillips were getting coffee, and I saw you sitting over at a desk with Bea Miller, and she was writing something on a piece of paper" ["a white card"] and she said, "I was not. I was not with her " I said, "Yes you were. We were standing right there before we left " So that had to do with the break time I said, "This way it will give me an idea that when they're coming to me and telling me that you're breaking all the time, if you write it down, I can say, `No, she was not there at that time ">11 38 Nichols testified that counseling is a part of the Hospital's employee evaluation program rather than its disciplinary process and is used to help employees work out any problem areas in the performance of their duties on the job by setting goals for improvements to be attained Nich- ols also testified that Cory's problem areas could not have been going on for very long, "or I would have counseled her before that " 39 Cory testified that she received Nichols' summons to her office while she was administering an "IV" to a patient and was instructed to "Drop whatever you're doing and come here right away," which she did However, Nichols denied this testifying that she told whoever was contacting Cory, her secretary or a supervisor, "When she's through, please tell her to come down here " 40 Nichols related that Cory asked her to name the employees who had complained about her but she told Cory that she was keeping the identity of the employees confidential because they had requested that she do so since they all had to work together at the Hospital 41 Nichols testified that Cory was not required to obtain permission from anyone, for dinner, lunch, or other breaks, taking her breaks when- ever she wanted to, since "This job has to have free reign because of its flexibility with the recoveries and the emergencies " Nichols also testified that she told Cory that "she could discuss union activities down on break Nichols testified that she reminded Cory that she had failed to record on the back of her timecards the time she spent in the various Hospital units such as ICU, CCU, emergency room, etc., and Cory indicated that she thought she had, with Nichols stating that this require- ment was for accounting, budgeting, and cost report pur- poses.42 Nichols related that the nurses' worktime is budgeted to the particular unit in which they work and that, since Cory worked in various units and filled in as a floor nurse as well, it was necessary that she show where she was performing her duties and how long she spent in the unit so that her time could be properly budgeted to that department. Nichols stated that Cory had asked her how she was to accomplish this and Nichols told her she did not have "to put down everything" but dust the record of "how many hours or half hours that she had been in ER and in Recovery, working on the floor, re- lieving so that I could get some idea of what was going on as far as the job goes." She added that Cory agreed to do so and thereafter recorded her worktime as re- quested 43 Nichols recounted that she also counseled Cory con- cerning Cory's failure to discuss with her the ideas that Cory had referred to in her letter requesting appointment to the coordinator's position which supposedly would benefit Sierra Hospital, the patients, the nurses, etc., and result in better patient care. She stated that Cory said she had been "very busy and was thinking about it and she would get to me soon with that."44 Nichols added that time" but not on duty, as part of the discussion concerning Cory being observed by Nichols and Etcheverry in the cafeteria at 3 30 with another employee Cory admitted that Nichols had never restricted her from "going other places in the hospital " She also admitted that she had failed to comply with the Hospital's policy requiring supervisors' signatures on timecards when employees do not take their lunch or dinner breaks, ex- plaining this by asserting that her timecard was located in different places during her tour of duty and she never punched in or out for dinner breaks 42 The Respondent introduced into evidence the timecards of Beverly Kent (R Exh 6), a registered nurse who allegedly is the counterpart of Cory or performs similar duties on the day shift, showing on the back thereof notations recording the time worked by Kent in the emergency room of Sierra Hospital, as to the dates and hours spent therein Interestingly Nichols also testified that Cory had actually been keeping records of the times and places she worked in the hospital for a time prior to the counseling session on August 11, 1980, and according to Nichols this was why she had not previously been advised that Cory was no longer keeping such records 4' Nichols testified that another reason for her request to Cory to keep a record of time spent in the various departments at the Hospital was that the job of coordinator was a newly created position and she wanted to be able to eventually evaluate it as to whether it should be full time or part time and to project the duty needs of the position departmentally or unit- wise Cory testified that Nichols had never asked her to keep a record of where she worked in the Hospital until the request made at the August 11, 1980 "counseling" meeting, but she did admit to knowledge and awareness of the Hospital's policy requiring nurses who worked away from their normal job stations to record on their timecards , whereever and whenever this occurred , the reason having "something to do with the budget " Cory added that Nichols also gave as a reason for requiring such recordkeepmg that the coordinator's position was funded through "different cost centers and budgeting " 44 Cory testified that she reminded Nichols that although Nichols had indicated that she had previously mentioned this to Cory when she was appointed to the job , actually Nichols was mistaken , and they had never discussed it before since Cory was hired for the job while she was conva- lescing from her knee surgery SIERRA HOSPITAL FOUNDATION she spoke to Cory and Etcheverry about "getting togeth- er" to work out a "pre-op" training program and again Cory said that she had been very busy and had "a lot of things on her mind" and would "get with [Etcheverry] soon "45 Nichols continued, Then we got down to attitude and she looked at that and she become a little defensive and said, Is this because of my union activity," and I said, "Marcia, let's not go into that. The only thing that I'm interested in is running this hospital and keeping good patient care, but personnel have been coming to me and they're been saying that you have been discriminatory because you've been nice to the pros and you haven't been nice to them" She said, "Now Beth, you know I wouldn't do that," and I said, "I don't think you would Marcia. I think that you are smarter than that but I think that I should tell you what is being said about you out there," She said, "I think that this is just because of my union activities," and there again, I said "No," that this had nothing to do with that 146 Nichols testified that she had received many complaints commencing in or about July 23, 1980, from employees about Cory's organizing activities taking place both on and off the Hospital premises and during working time and "off hours "47 She related that she spoke to Cory at the counseling session about all these complaints because it was affecting the nursing staff but "I was interested in what was happening on duty time and duty time only."48 Nichols testified that she next discussed the goals to be achieved by Cory in solving these problem areas requir- ing Cory to report to either Nichols, her secretary, or the day nurse supervisor when Cory came on duty and generally to report as to where she was in the Hospital because the day supervisor and others had been com- plaining to Nichols that they could not locate Cory at times, did not know where Cory was, and that "paging" her through the Hospital's intercom system was on occa- sion less than successful Nichols added, I asked her to prepare a daily [log] or ER emergen- cy room, recovery room, relief of the CCU and how her time was spent This was mainly for my action flow sheet as to decide how this job was 45 Nichols added that Etcheverry also asked Cory why she had not come to see her to discuss the "pre-op teaching" program and Cory re- sponded that she had been dust too busy but would do so thereafter 46 Nichols testified that she also told Cory that "they were making the [nurses] aides uncomfortable because of all this and I wanted her to go out and treat everybody equal as long as she was on duty she was to try to keep a continuity of care because when people were all nervous and upset, they were not doing their best work " 47 Nichols stated , "There were 10 to 25 , at least," but about 10 had complained specifically about Cory engaging in union activities at the Hospital during working hours She testified that she also "had about five RN's who were threatening to quit " because "they didn 't want to get in- volved one way or the other and they felt like they were being put in a vise " 48 Nichols admitted that the counseling of Cory on August 11, 1980, was due in great part to "her union activities because [she] had com- plaints about [Cory's] union activities " 437 going to formulate with its formal job description Okay? And I told her to-about refraining from dis- rupting the nursing staff and that this was a very tense time when people were being pulled one way and the other and it was disrupting to the nurses and the staff and that I wanted her to help keep a smooth continuity because this is very important for patient care. That's what I was really interested in. I asked her if she had anything to say and she said, "No," and I said, "Would you like to write some- thing" and she said, "No."49 Nichols stated that she requested that Cory sign the counseling form which Cory did. She related that she put her arm around Cory because "I was very fond of Marcia. I think she was a very good nurse and I wanted to let her know that there weren't any bad feelings." Nichols testified that she also told Cory about the files being "broken into" and Cory asked her if Nichols was accusing her of this to which Nichols responded, "No " She stated that she told Cory that she had informed each employee whose file had been "tampered with" as to which items were missing therefrom, and that she felt this was a serious matter.50 Nichols added that she did not tell Cory as to the nature of the "counseling materi- al" in the file which had been taken.51 Nichols denied that she had made any statements to Cory "to the effect that [she] knew who was involved in the union," or that there was any discussion at this meet- ing about "the pros and cons of unionism," or that the possibility of strikes was mentioned, or that "Mr. Rowe's" name was brought up during the "counseling session" in any manner or context. Nichols also denied that she interrogated Cory about her feelings toward the Union, or had accused Cory of being disloyal to the Hospital by engaging in union activities She further denied that her instructions to Cory about reporting her arrival at the Hospital to Nichols or a supervisor, and that of keeping a record of her work stations was im- posed "because of Cory's union activities " Additionally Nichols testified at first that Cory's fail- ure to record the times and places she worked at the Hospital during her tour of duty was the "more impor- 49 Cory explained her failure to comment on the counseling form by alleging that she was "a little bit shocked" at what was occurring and could not think of anything relevant to write down at the time so Etcheverry also testified that Nichols had mentioned to Cory that the personal files of nursing department employees kept in Nichols' office had been broken into and items removed from various employees' files including Cory's These files are kept in addition to the employees' gener- al records maintained in the Hospital 's personnel department and contain counseling notes , disciplinary warnings, etc 51 Nichols' testimony with regard to the informal "counseling ses- sions" above referred to, i e, Cory's problems with Phillips, Packard, and Olsen for which counseling was allegedly given to Cory by Nichols or Ryland respectively, and as to whether Cory actually knew that notes of these sessions were being recorded and placed in her personal file, was at times evasive, defensive, and unclear She stated that all employees knew about this and that she specifically had told Cory that this was being done concerning Cory's problems with Phillips, "because it was disrupt- ing the nursing staff" Nichols then testified that she was not sure wheth- er she had actually told Cory that these notes were being placed in her file Nichols continued that the personal files of the nursing personnel could be reviewed by the employee upon request but that Cory had never asked to see or inspect her file 438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tant" problem requiring Cory's counseling on August 11, 1980, "because I was not getting any feedback about the formulation of this job and the benefits that she was going to give the hospital and the patients and the em- ployees. That was my number 1 that I had on my notes." Then in response to a question concerning whether this was more important than "all the furor about the union activities" she responded, No. I was getting from the first, you realize that this was happening from the 23rd of July and it was picking up and picking up and I wanted to make sure that I had enough people coming for me Just one or two people, when they come to me does not do a problem, but it has got to be a great, big, huge problem. Etcheverry52 testified that Nichols advised Cory that this meeting constituted a counseling session and showed Cory a prepared counseling form listing her problem areas and the goals to be met to resolve these prob- lems 53 She stated that Nichols wanted Cory to "keep track" of her time spent in the emergency room, recov- ery room, critical care unit, etc. on her timecard "so that we could use it for budgetary purposes and also to evalu- ate the job because this job was relatively new to our hospital and we wanted to see what we were going to do with it " Etcheverry continued that this had previous- ly been explained to Cory but she was not complying therewith "and that this was one of the areas that was not being met."54 In this connection Etcheverry also re- lated that Cory was asked to keep an "accounting of where she was at all times, like when she went to dinner, when she went on break, if she was in X-ray, here and there," so that the Respondent could use "these action flow sheets" to evaluate the job 55 She added that while Cory agreed to record the required information on the back of her timecard and in "action flow sheets" as re- quested, Cory also asked Nichols if these requirements were being imposed because of Cory's union activities and Nichols responded, "No, we are not." Etcheverry testified that the duties of the "coordina- tor's" job also included working with the "In-service [Education] Department" in developing a formal preop- 52 As assistant director of nursing and the in-service director at Sierra Hospital Etcheverry assists Nichols in her work as director of nursing "making patient rounds, handling any problems that come through" and in Nichols' absence acts as the director of the nursing department Etche- verry's duties as in-service director involve coordinating the educational activities of the nursing personnel at the Hospital Etcheverry testified that she frequently sits in on counseling sessions and meetings between Nichols and hospital staff nurses 53 Etcheverry testified that she and Nichols had discussed Cory's problem areas prior to August 11, 1980 , but she could not recall when Nichols had apprised her that she was to attend the counseling session with Cory on that day 54 Etcheverry testified that Sierra Hospital requires that all employees account on their timecards for work performed outside their regular or normal duty stations for "budgetary purposes " Also see R Exh 6 Nich- ols testified that in June 1980 she had reminded Cory to "put her time on the time card" but at the time this did not represent a problem since the job was only a month or two old 55 Nichols testified that the coordinator's position was currently a part- time job and was made so on the basis of the time records that Cory had kept after the counseling session on August 11, 1980 erative patient education program and Nichols asked Cory and Etcheverry to work together to accomplish such a program.56 Etcheverry stated that after she "got across" to Cory the need "to start doing some pre-op teaching" Cory agreed to meet with her to develop and implement such a program.57 Etcheverry testified that another area discussed by Nichols was Cory's "attitude." She continued that Nich- ols told Cory that she and Etcheverry had received nu- merous complaints from employees, nurses, and nursing assistants, that Cory had been "disruptive out on the floor . . . talking about the union on duty time and some of these people felt that they were being discriminated against when they didn't present a positive attitude to- wards the union."58 She added that, "Beth told her that she was not to do this on duty time and that you can't do that."59 Etcheverry recounted that Nichols told Cory that "her only interest was in running this hospital and that she wanted the patients to get care. That was all she was concerned with, and she wanted anything that was disruptive to stop."fio 56 This program envisions Cory educating patients who are at the hos- pital for surgery as to what to expect priorto , during , and after their op- erations generally lessening their apprehension and psychologically pre- paring them for the scheduled operative procedures 5' Etcheverry admitted that until the August 11 , 1980 counseling ses- sion she had personally not made any request to Cory to meet with her concerning the "pre-op teaching " program Cory testified that there was no discussion between her and Etche- verry at this meeting concerning the "pre-op teaching " program but re- membered that Etcheverry had brought up something about Cory failing to come to her "about the pre-op teaching program or some such thing like that " 58 Etcheverry testified that approximately five employees, two nurses and three nursing assistants , had personally complained to her about Cory's union activities in that Cory had asked them to sign union authori- zation cards and when they refused to do so Cory continued pressuring them to change their minds , and was not as friendly toward them as she had been before Etcheverry continued that there was a great deal of "talk" about the Union at the time and these employees said that they were "sick of hearing about it and they were sick of what it was doing to the floors " She related that they had said, They felt pressured that people were still coming to them and want- ing them to sign cards They felt that the people involved in this sit- uation and they specifically named Marcia were not treating them the same way that they had been treated before all of this came about Etcheverry added that the employees made it clear that Cory was not the only one engaging in such activities, there were other employees doing this at the Hospital According to Etcheverry, however, only Cory was counseled about this Concerning this Nichols testified that six em- ployees besides Cory had been named by other employees as being "union activists" but Nichols did not counsel these other employees, in- stead bringing this to their supervisor's attention to ensure that they "did not have any difficulties " 58 Cory acknowledged in her testimony that Nichols at no time direct- ed her to cease talking to employees about the Union but only advised her not to do so during "duty time " 60 When asked on cross-examination "to summarize the conversation on August 11, with particular reference to Nichols telling Marcia to stop being a disruptive influence, what particular activity was she asking her to stop," Etcheverry answered, "She was asking her to stop discriminat- ing in her behavior towards the rest of the nursing personnel " She added that Nichols said that "her only concern , was patient care She wanted to maintain the high quality of care that our hospital has been noted for we, over the past two years, have built up a real good group of people and have had a very cohesive atmosphere within the hospital" and Nich- ols did not want this disrupted SIERRA HOSPITAL FOUNDATION Etcheverry continued that employees had told her that they had seen Cory soliciting union authorization card signatures during worktime and one of these employees had herself been solicited by Cory while on duty While Etcheverry's testimony seemed a little bit confused at this point she did testify that while employees had com- plained about also receiving phone solicitations to sign authorization cards from other employees who were union adherents, so far -as she could remember the com- plaints about direct solicitation on working time involved only Cory. According to Etcheverry, Cory denied being disruptive and registered disbelief that anyone had or would complain about her. Etcheverry related that when Cory asked Nichols to tell her the names of employees who had complained about her, Nichols refused to do so alleging confidentiality since these employees had re- quested that their names not be disclosed. Etcheverry testified that Nichols mentioned that she had received complaints from hospital staff members concerning Cory's movement throughout the Hospital and "it seemed to them that she didn't have any supervi- sion, that she had free rein of the place."6 i She stated that Cory responded that "her job leads her all over the hospital." Etcheverry continued that Nichols also told Cory that there were complaints registered against her concerning the inability of -nurse supervisors or other personnel on occasion to locate her at the Hospital. Nichols instructed her to report to Killbom, the day nurse supervisor, or to Nichols herself when Cory ap- peared at the Hospital each day so that she could be as- signed where needed.62 She added that this was being done not only to aid the hospital but to protect Cory from the above criticism as well.63 Etcheverry testified that Nichols told Cory that she "couldn't talk about the union on on-duty time, but in the cafeteria if you were on your break, that this was okay " She continued that after Cory said, "Well, you've never seen me do that," Nichols responded that she had the day before when she and Etcheverry were leaving the Hospital at 3:30 "that we had been down in the cafe- teria and seen Marcia down there with some various people." Etcheverry denied that Nichols had told Cory that "she knew that any of the employees that were in the cafeteria at that time were supporters of the union or engaged in any of the union activities." Etcheverry also denied that Nichols had mentioned anything during the counseling session about the possibility of a strike, or that Rowe's name had been raised during the conversa- tion, or that there was any discussion whatsoever as to what employees "may expect to get or not get in collec- tive bargaining." She additionally denied that Nichols had asked Cory to state the reasons for her support of 61 However, Etcheverry admitted that in the performance of her duties in her new job Cory would of necessity have to be "all over the hospital " 62 Etcheverry testified that there had been a problem with the utiliza- tion nurse not knowing when Cory was present at the Hospital Since the utilization nurse works from 7 a in to 3 30 p ,m and during her shift she also covers the emergency room until 1 30 p in when Cory commences her work shift, this nurse "didn't know when to turn over the Emergen- cy Room She didn't know what area Marcia was at, if she came on and went up to CCU or went to the second floor or whatever " 63 Etcheverry stated that Cory readily agreed to do this 439 the Union or that any discussion about the "pros and cons of unionism" occurred between them at this meet- ing. Cory's Evaluation Conference on August 22, 1980 On August 22, 1980, Cory met with Nichols in Nich- ols' office, to discuss her yearly evaluation report. Cory testified that she was given a copy of the written evalua- tion to review64 and after reading it through told Nich- ols, I felt that it had been one of the fairest evaluations I had received since being there at Sierra Hospital. I also went on to tell her that, in view of what hap- pened in the last couple of weeks, that I felt it was a little inconsistent with what had occurred. Mrs. Nichols didn't make any direct comments to that. The rest of the conversation was just generalities about evaluations and she alluded to the fact that mine was good. . . . She did tell me that I was a hard working person and that I had done a lot of good for the p.m. shift, since I had been on that shift, and with that she turned the page over and she went over the salary adjustments with me. Cory added that the one area that was marked as need- ing improvement was "the category of absences or ill- nesses-attendance" which they discussed Cory stated that she explained to Nichols that she had missed "six or seven weeks" during the past year for various reasons such as her having undergone knee surgery at the hospi- tal, being involved in a car accident, being hospitalized twice for "stomach problems" and "We discussed this and both agreed that that was understandable and seemed to be no big issue."65 Concerning this Nichols testified that she acknowledged to Cory that there had been improvements made by her regarding the problem areas discussed previously between them at Cory's coun- seling session on August 11, 1980 Nichols testified that she held another counseling ses- sion with Cory on November 10, 1980 She stated that Cory had been keeping track of her time, reporting her activities properly, and since Nichols now had a good idea as to what the coordinator's job entailed she told Cory to discontinue the recordkeeping. Nichols additionally testified that sometime in June or July 1980, prior to the advent of the Union's organiza- tional campaign, she had informed nurses at a staff meet- ing, . . . that the nursing staff is the largest group in the hospital, and if they were having difficulties, they 64 The evaluation report is dated July 18, 1980, and is signed by both Cory and Nichols (see R Exh 4) Cory testified that the first time she ever saw this report was on August 22, 1980, when it was discussed with her by Nichols after which she signed it Nichols confirmed this testify- ing that she dated the form "7/ 18/80" when she prepared it and Cory's signature was not on it at the time It should be noted that this would seem to contradict Nichols' previous testimony that she only signs and dates a document after all the parties have signed it 65 Cory testified that there was no discussion about her union activities during her evaluation conference with Nichols 440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD should get together and I would set up a meeting with Mr Berg. The nurses had decided to have one. They said yes, they wanted one Mr Berg and I had conferred. He had all of my-you know, it was budget time and he was getting all of his things together for his benefit pack and he has to-he doesn't have the final word He has to go to the Board to get approval, as this was all in the docket and we were going to have a meeting with Mr. Berg before Also, according to Nichols, the Respondent's official policy during the Union's organizing campaign was one of neutrality. However, on cross-examination Nichols was asked if she had read the series of staff memos issued by Sierra Hospital Administrator Berg in August 1980 concerning the subject of the Union's organizing cam- paign and Nichols answered, "Yes, she had," characteriz- ing the Hospital's position therein as "They were giving them the facts." Counsel for the General Counsel then read a portion of one of these memos into the record which states as follows: Finally, we don't want the union and we don't need the union here at Sierra Hospital It is our honest opinion that when the union gets into your hospital, it will not work for your best interest, but could work to your disadvantage. Therefore, we will oppose this union with every ounce of energy that we have. After listening to this Nichols now denied having previ- ously read this particular language . She also attempted to explain her previous statement that the Respondent's po- sition was a neutral one regarding the Union by relating it to patient care as affected by "how the nurses feel" and to her own actions and statements as to the nurses "sticking together" and "ironing out our problems with Mr Berg " She finally admitted, however, her opposition to union representation "Because I feel like the nurses are losing something because you have to bargain, and in bargaining you alway lose. Nobody wins "66 Cory voluntarily terminated her employment at Sierra Hospital on November 16, 1980. At the time of the hear- ing Cory was working at another hospital, Valley Medi- cal Center, having commenced her employment there in January 1981. C Acts of Interference, Restraint, and Coercion Section 8(a)(1) of the Act prohibits an employer from interfering with, restraining , or coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. 66 Nichols related that on one occasion when showing a prospective nurse employee through the Hospital they were approached by one of the RNs at Sierra Hospital who advised the prospective nurse employee not to work there Nichols continued , "She said they were in the middle of an [organizational campaign] , and so the nurse did not come " I Impressions of surveillance The complaint alleges that the Respondent on August 4,,1980, and again on August 11, 1980,67 created the im- pression that it was engaged in surveillance of its em- ployees' union activities thereby violating Section 8(a)(1) of the Act The Respondent denies this allegation Analysis and Conclusions The resolution of the issues presented in this case rests initially upon a determination of the credibility of the re- spective witnesses herein and I admittedly have found such a determination to be difficult and distressing at best. As the administrative law judge observed in Cas Walker Cash Stores, 249 NLRB 316, 321 (1980)• Resolution of credibility conflicts are often diffi- cult, requiring the weighing of equally plausible narrations of testimony of witnesses who appear to be telling the truth and who are no more prejudiced and biased than others who are telling a totally dif- ferent story. Ofttimes, there are no fatal inconsisten- cies nor contradictions for the determiner of factual issues to seize upon to arrive at a firm conclusion In those instances, the trial judge or jury must rely upon a sixth sense and instinct, which makes the resolution of certain conflicts somewhat unsatisfac- tory, leaving the chance , sometimes slight and many times significant, that the final decision was errone- ous. A reasonble doubt remains. While much of what was said above holds true in this case, still I find that based upon a careful analysis of the testimony of the parties and the evidence presented herein, and based upon my observation of the demeanor of the witnesses, established or admitted facts, inherent probabilities, and reasonable inferences which may be drawn from the record as a whole'68 I am constrained to credit Marcia Cory's version, in most part, of what oc- curred between her and Beth Nichols during their meet- ings on August 4 and 11, 1980. Cory's testimony was generally consistent, sincere, and believable 69 In con- trast thereto, Nichols' testimony was at various times evasive, unclear, defensive, and less than believable'70 67 The complaint alleges that the Respondent , "On or about August 11, 1980, created the impression that it was engaged in surveillance of its employees' union activities by identifying those employees whom it felt were most active on behalf of the Union " 6' Gold Standard Enterprises, 234 NLRB 618 (1978), V & W Castings, 231 NLRB 912 (1977), Northridge Knitting Mills, 223 NLRB 230 (1976) 69 Interestingly the Respondent observes in its brief, "There is no ques- tion that Cory was well prepared for her appearance at this proceeding Her testimony follows her pre-trial affidavit almost verbatim with only a slight deviation " I understand that by this statement the Respondent wishes a negative inference to be drawn concerning the content and manner of Cory's testimony However , I do not find such an inference warranted from the record 70 When Nichols denied having told Cory on August 4, 1980, that she had heard about the union meeting on July 30, 1980, at which 25 of the Respondent 's employees from various hospital departments attended, she added that she "didn ' t even know about it " This is unbelievable in view of her testimony that from on or about July 23, 1980, she had been del- uged with calls from employees reporting about Cory's and other em- ployees' union activities and complaining that they were being "bothered Continued SIERRA HOSPITAL FOUNDATION 441 giving rise to a strong inference and belief that while she was generally relating, in most part, what occurred as truthfully as she remembered it, when it came to giving any testimony that might be construed as adverse to the Respondent's position herein or supportive of a finding of unlawful conduct on the Respondent's part, she geared her answers to either an outright denial of such unlawful conduct'' or an attempt to portray such con- duct in the most favorable light.72 Of particular significance in this respect was Nichols' constant attempts to downplay the basic underlying reason for having a conversation with Cory on August 4, 1980, and a counseling session with her on August 11, 1980. Nichols attributed happenstance, "spur of the moment," as the reason for the first, and the need to assess and evaluate the new job of coordinator which Cory had been performing for approximately 3 months, to the second. The evidence herein clearly shows, with Nichols eventually and somewhat grudgingly admitting the same, that the Union's organizing campaign and Cory's active roll therein, albeit allegedly disruptive to hospital staff and regimen, was the actual and primary cause, and the catalyst which set these events in motion .7 3 by Marcia and her hoods," etc Add to this the fact that Sierra Hospital is a relatively small hospital facility and a sizeable number of employees, 25, attended the meeting and Nichols' denial of knowledge thereof seems weak indeed There is no evidence in the record that the Union's organi- zational campaign was being conducted secretly nor that the employees' union activities were being engaged in surreptitiously In fact it seems likely that the issue of union representation was the most discussed topic at the Hospital at this time and therefore it is reasonable to assume and highly probable to believe that Nichols was told about this meeting and apprised Cory of her knowledge thereof to get the point across that she knew what was happening concerning the union activities of the Re- spondent's employees 71 Nichols' own statements form the basis of the unlawful 8(a)(1) con- duct alleged herein and it seemed that she wanted to undo the "harm" she may have caused the Respondent by her actions 72 For example, Nichols testified that the Respondent's position to- wards the Union's organizational campaign at Sierra Hospital was one of neutrality However, the evidence clearly shows that its position was one of virulent opposition to any union representation of its employees What clearer statement of antiunion motivation on the part of the Respondent, although not unlawful unless accompanied by conduct violative of the Act, than Berg's memo to the Hospital staff which stated Finally, we don't want the union and we don't need the union here at Sierra Hospital It is our honest opinion that when the union gets into your hospital, it will not work for your best interest, but could work to your disadvantage Therefore, we will oppose this union with every ounce of energy that we have [Emphasis added I That Nichols was aware of the Respondent's attitude toward the Union is beyond doubt despite her testimony that she had not read the memo As director of nursing she perhaps held the next highest administrative and/or supervisory position at Sierra Hospital after the Hospital's admin- istrator, Berg In support thereof is Nichols' own testimony on cross-ex- amination wherein after some evasiveness , and after her consistent at- tempts to portray herself as being completely impartial towards the Union, she finally admitted that she did not favor union representation, in fact she implied a strong opposition thereto 73 It should be noted that the only real topic of substance discussed between Cory and Nichols on August 4, 1980, was, according to their own testimony, the reports that Nichols had heard concerning Cory's union activities and her admonition to Cory to restrict her union activi- ties to the off-duty or nonwork hours of both herself and the other em- ployees, and Nichols' reference to the union meeting It is obvious that Nichols sought out Cory on that day to discuss this Additionally, I am not unaware that Nichols' denials that she made any unlawful statements to Cory at the August 11, 1980 "counseling session" was supported by the testimony of Kathy Etcheverry who was also present at this meeting Further, in explaining the presence of Etcheverry at the "counseling session" Nichols interestingly testified, "I wanted her to be there to discuss the in-service part of the preop program, and I wanted her to be there as a witness so that Marcia and I both would be objective and that there would be somebody there to hear what we had to say. It keeps me pure " (Emphasis added.) Nichols im- pressed me as being an intelligent woman somewhat fa- miliar, in a layman's sort of way, with what was accepta- ble and lawful conduct by a supervisor during an organi- zational campaign, in support of an employer's opposi- tion to union representation of its employees, and Etche- verry's presence therefore could just as well have been to back up Nichols' subsequent denial that she made any unlawful statements tending to intimidate, influence, or hinder Cory's union activities were such statements later brought to light. The question in my mind, which arises from Nichols' statement, "It keeps me pure," is as to what did Nichols actually intend at the counseling ses- sion which could be interpreted as "impure" if she were not contemplating some sort of unlawful action. Why the need for Etcheverry's attendance as a safeguard and why bring this up as a reason for Etcheverry's presence at all, if not self-serving, to corroborate subsequently any ver- sion of what happened that Nichols might give. Etche- verry's presnece concerning the preop program would have been justification enough? I keep getting the decid- ed impression, famous in mystery and detective litera- ture, that "the plot thickens." Moreover, the Respondent seeks to discredit Cory's testimony on the basis of the problems Cory had with other employees at Sierra Hospital which the Respond- ent asserts were psychological in nature. According to the Respondent, "She exhibits classic characteristics of paranoia, a mental disorder characterized by systema- tized delusions and the projection of personal conflicts that are ascribed to the supposed hostility of others." While various incidents concerning Cory and other hos- pital employees were testified to in detail by Cory her- self, Ryland, Nichols, and Etcheverry, I cannot from the evidence herein accept the Respondent's proffered diag- nosis above This is true despite the additional' evidence that Cory sought and received therapy at the Hospital because of her problems. Contrasted with the above is the fact that both Nichols and Ryland investigated many of Cory's complaints and problems with other employees and took some action thereon, at times in Cory's favor, i.e, Nichols separated Phillips and Cory as to their work assignments and Ryland admonished Phillips to stay However, Etcheverry is the assistant director of nursing at Sierra Hospi- tal and I believe that while basically desiring to testify as to just what actually did happen at this meeting, she supported Nichols' testimony concerning her denials since as a higher echelon supervisor and Nichols' close assistant she felt compelled to do so both because of her loyalty to and as part of Sierra Hospital's management, and the need to be support- ive of her immediate supervisor for whatever reason It is Etcheverry's testimony plus the fact that Cory, as an interested party herein and with a family background of union involvement, would also have a reason to testify as she did, that has made the credibility determination in this case both distressing and difficult Of all the witnesses herein I must admit that the testimony of Sally Ryland was the most believable However, her testimony shed no direct light on the issues presented herein since she was not present at either of these meetings 442 'DECISIONS OF NATIONALLABOR RELATIONS BOARD away from Cory after such separation, etc'-The fact that, despite all 'of the above, Cory was seletted, over two other applicants to fill the newly created and".responsible position of coordinator, with the Respondent's full knowledge of these problems obviously for the reason that Cory was an able, dependable, competent and expe- rienced nurse, also supports my rejection of the Re- spondent's above assertion regarding- Cory's credibility. It should be noted that the actual participants in the most serious of these incidents, the threat of bodily harm against Cory by Phillips' husband, which the Respondent pointedly refers to in its brief in support of its above con- tention, did not testify herein to refute Cory.'s^ testimony thereon. Neither Maureen Phillips nor. her husband. was called as a witness in this matter. The Union commenced its organizing campaign at Sierra Hospital sometime in July 1980. That the Re- spondent became aware of this in the latter part of that same month or at the beginning of August is clear from the record.74 According to Cory's testimony which I credit, for the reasons as set forth above, on August 4, 1980, Nichols had a conversation with her in the Hospi- tal's emergency room during which Nichols said that she had heard a rumor that Cory was attempting "to get a union in here at Sierra Hospital" which Cory admitted was true. Cory continued that Nichols informed her that she could solicit authorization card signatures during her "non-working time" but not during the working hours of either herself or those of the other employees. She testi- fied that Nichols then "went on to say that she was told that we had a meeting the other day and that there were 25 people there from the various departments." Additionally Cory testified that during her "counseling session" with Nichols on August 11, 1980, Nichols told her that "she knew that Maureen Phillips and Vicky Green and Syd Haskins and . . Marge Stone were in on this with me" after Nichols had indicated to her that she and Etcheverry had seen Cory giving a "union card" to another employee while they were in the hospital caf- eteria. The Respondent asserts in its brief that Nichols' remark to Cory that she had heard a rumor that Cory was trying to get a union into the Hospital is insufficient in and of itself to warrant a finding that the Respondent thus created the impression that it was engaged in sur- veillance of its employees' union activities. I agree. The Respondent continues that Nichols' remark that there had been a meeting "is not sufficient without more to es- tablish an impression that the Employer was actively en- gaged in surveillance for reasons mentioned in Section III of this brief," citing Pedro's Restaurant, 246 NLRB 567 (1979). This time I do not agree. The applicable facts in the Pedro's Restaurant case, supra, were as follows: Ronald Weimer, a waiter em- ployed by the employer therein, invited another waiter- employee, Edward Cone, to attend a scheduled union 74 Nichols testified that she had been receiving complaints regularly from hospital employees concerning "Marcia's union running ramp- ant all over the hospital " including allegations that they were "pressur- ing" the nursing staff to sign union authorization cards and with Cory soliciting such signatures while on and off duty, this all happening prior to August 4, 1980 meeting during, a union .organizing campaign Cone re- plied that- he was totally against the idea of a union and 'declined the invitation. Thereafter, Weimer observed Cone in 'conversation, with, the Respondent's assistant manager Cynthia Ramirez. Soon after this Ramirez asked ,to -see Weimer in her office -upon the completion of his work shift., and when -he- appeared Ramirez told him, "People have come to me 'and told me that you have asked them to' these meetings," which Weimer denied doing. On the basis of these facts the administrative law judge found that "her statements that she had been told that Weimer was inviting employees to meetings were not calculated. to nor did' they reasonably tend to create the impression that, Respondent was engaged in surveil- lance of the union activities of its employees " The Board affirmed the above ruling. I do not find the Pedro's Restaurant case similar factually or applicable herein. In, the instant case Nichols' statement, that "she was told that we had a meeting the other day and that there were 25 people there from various departments," is of a substantially different nature from Ramirez'. In the Pedro's Restaurant case, Weimer could reasonably infer that Cone had told Ramirez about being invited to the union meeting after Weimer had extended the invitation to him so that there could be no impression created that the employees' union activities had been placed under surveillance by the employer. Further, because of this, Ramirez' statement would be speculative as to invitations to any other employees in her use of the plural "employ- ees." However, Nichols' statement herein indicated the specific number of people who had attended and the fact that they came from various departments in the Hospital. This, and the fact that Cory's own union activities had been reported to Nichols as Nichols disclosed to her, was indicative of more than mere speculation. It was in- dicative of actual surveillance of employees' activities.75 As to Nichols' statement made to Cory on August 11, 1980, that she knew that other employees were taking active part in the Union's organizational campaign, and naming these employees with particularity, it cannot be seriously contended that under the circumstances present in this case such a statement would not give the impres- 76 The Respondent offers, in further support of its contention that Nichols' statement "even assuming arguendo" that it had been made does not give rise to an impression of surveillance , that Nichols did not dis- close "how she knew of the meeting, where it was held, when, who at- tended, who called it, etc In fact, even from Cory's testimony we cannot even be sure that such a remark, had it been made, was in reference to a Union meeting " The Respondent adds that Nichols' "remark obviously stands alone and totally out of the context of the rest of the conversation as reported by both Nichols and Cory" and therefore supports its above contention asserting that Nichols' statement could possibly have referred to the number of people complaining about Cory's actions during her union activities as well I do not agree According to Cory's credited tes- timony Nichols' statement came after she had apprised Cory that it was rumored that Cory was "trying to get a union in here at Sierra Hospital," and that Cory should not engage in union activities during her own work hours or those of other employees The conversation between them was directed primarily at the Union 's organizational campaign and Cory's role in it What else could Nichols have meant in view of the actual fact that such a union meeting had previously been held Credulity dictates a re- jection of the Respondent's contention concerning this SIERRA HOSPITAL FOUNDATION 443 Sion that the union activities of the employees were under surveillance by the Respondent. In determining whether an employer created an im- pression of surveillance, the test applied by the Board is whether employees would reasonably assume from the statements or actions in question that their union activi- ties had been placed under surveillance 76 In considering the above statements I find that such an assumption is reasonable. The statements in these instances were not in the nature of rumor but of positive fact and well could give the employees involved the impression that their ac- tivities were under surveillance.77 In view of the above, I find and conclude that the Re- spondent, by the above statements of its representative Nichols, created the impression among its employees that their activities on behalf of the Union were under sur- veillance and thereby violated Section 8(a)(1) of the Act.7 8 2. Threats and warnings The complaint alleges that on or about August 11, 1980, the Respondent, acting through Beth Nichols, told employees that selection of the Union as their collective- bargaining representative would be futile as the Re- spondent would not agree to improvements in working conditions absent a strike in violation of Section 8(a)(1) of the Act. The Respondent denies this allegation. Analysis and Conclusions According to Cory's credited testimony during her counseling session on August 11, 1980, Nichols while in- dicating her concern about patient care in the event of a strike at Sierra Hospital stated, "Well, I can tell you, Mr. Rowe won't give you anything the union asks for and you'll have to strike." Cory continued that after she re- sponded to Nichols' statement with, "Then what you're saying is that Mr. Rowe doesn't intend to bargain in good faith," Nichols replied, "He won't give you any- thing."79 Nichols' statements obviously constituted a threat that the Respondent would not negotiate with the Union should the Union become the collective-bargaining rep- resentative of its employees at Sierra Hospital. This is clearly violative of Section 8(a)(1) of the Act and I so find.80 3. Interrogation of employees concerning their union activity and support The complaint alleges that about August 11, 1980, the Respondent interrogated an employee concerning her reasons for supporting the Union in violation of Section 8(a)(l) of the Act, which allegation the Respondent denies. Analysis and Conclusions Cory testified that during her counseling session on August 11, 1980, Nichols told her that she knew that various other employees were also engaging in union ac- tivities and named these individuals to which Cory re- sponded, "that I didn't know about that and that I would not divulge any of this information to her." It is clear that Cory inferred from Nichols' statement that Nichols was seeking confirmation that these other named em- ployees were actually engaging in such union activities. Cory additionally testified that Nichols asked her why she felt so strongly about having a union to represent employees at Sierra Hospital. The General Counsel asserts that by the foregoing the Respondent unlawfully interrogated Cory. I agree. The basic premise in situations involving the questioning of employees by their employer about union activities is that such questions are inherently coercive by their very nature and therefore are violative of the Act "because of its natural tendency to instill in the minds of employees fear of discrimination on the basis of the information the employer has obtained "81 However, the Board has held that in certain circumstances employers may have a le- gitimate purpose for making a particular inquiry of em- 76 7-Eleven Food Store, 257 NLRB 108 (1981), Schrementi Bros., Inc, 179 NLRB 853 (1969) 77 Contrast G C Murphy Co, 217 NLRB 34 (1975) 79 7-Eleven Food Store, supra, South Shore Hospital, 229 NLRB 363 (1977), enfd in pertinent part 571 F 2d 677 (1st Cir 1978), Richlands Tex- tile, 220 NLRB 615 (1975) 79 The Respondent in its brief states in support of its contention that Nichols never made this remark, "It stands alone in the conversation as the sole comment on the mechanics of collective bargaining" and, "The supposedly coercive statements and questions attributed to Nichols by Cory do not follow the theme or the tone of the rest of even Cory' s testi- mony " Again I do not agree Both the Respondent's and Nichols' main concerns, as clearly indicated by the evidence herein, were that the union activities of the Respondent's employees not disrupt the day-to-day oper- ation of the Hospital and proper patient care, and to ensure the failure of the Union's organizational campaign among the Hospital's employees That Nichols would reasonably make reference to these things in her desire to effectuate the above is not an unreasonable inference to be drawn from the circumstances present herein as the Respondent suggests Neither is it apparent from the record that because Nichols' remarks "stand alone" in the context of the topics discussed at these meetings, this supports Nichols' testimony that they were not made Actually, when the record is considered as a whole the contrary is true Nichols wanted to make Cory aware that the Respondent was displeased about her union activities since although it knew of her former union background Cory had previously expressed her belief that a union was not needed at Sierra Hospital Moreover, Nichols' attempt, at the meeting on August 4, 1980, albeit indirectly, to accomplish this had failed Additionally in support thereof, the Respondent asserts in its brief, "Moreover, to attribute such a position to Mr Rowe, the head of the Sierra Hospital Foundation, is not logical inasmuch as such decisions re- garding terms and conditions of employment are traditionally made by the Administrator of a hospital " However, this is not usually true In fact, final approval of the terms and conditions of a collective-bargaining agreement is usually made by the owners of hospitals whether a board, foundation, whatever, even though the hospital administrator may negoti- ate the terms thereof on behalf of the owners or administer it after the agreement is signed See, for example, Parkview Acres Convalescent Center, 255 NLRB 116 (1981) Also see Nichols' testimony in which she ac- knowledged that the Respondent's "Board" has the power to finally ap- prove any substantial changes in the terms and conditions of employees at the Hospital 90 See Georgia, Florida, Alabama Transportation Co, 219 NLRB 894, 896-897 (1975), enfd 529 F 2d 1350 (5th Cir 1976) Further, underlying the remarks made by Nichols is also the inference that it would be futile for the employees to select a union to represent them, because the union could not secure any improvements in their terms and conditions of em- ployment which is also violative of Sec 8(a)(I) of the Act Paoli Chair Co, 231 NLRB 539 (1977) Si Sans Souc, Restaurant, 235 NLRB 604 (1978), NLRB v West Coast Casket Co, 205 F 2d 902 (9th Cir 1953) 444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployees which may involve, to some limited extent, union conduct.82 In this case there were no circum- stances present which might have justified some limited inquiry into the union activities of its employees. The Respondent offered no legitimate reason nor can I find any legitimate purpose for such interrogation or ques- tioning of its employee Cory other than that it was done, when considered in the light of the Respondent's other actions herein, for the purpose of coercing its employees into refraining from engaging in any union or protected concerted activities or to have them renounce the Union 83 Nichols' accompanying remarks during the conversation wherein the interrogation occurred over- whelmingly support this.84 Further, the Respondent, while interrogating its employee, gave her no assurance against reprisals85 and Nichols conducted the interroga- tion of Cory in her office, the "locus of managerial au- thority."86 Additionally, the coercive impact of the in- terrogation is not diminished by either the employee's open union support or by the absence of direct attendant threats of adverse consequences to the employee.87 The test applied in determining whether a violation of Section 8(a)(1) of the Act occurred is "whether the em- ployer engaged in conduct which, it may reasonably be said, tends to interfere with the free exercise of employee rights under the Act. 1188 Applying that test, I find that the Respondent, by interrogating its employee, as set forth above, has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act and has thereby violated Section 8(a)(l) thereof.89 82 P B & S Chemical Co, 224 NLRB 1 (1976), Johnnie's Poultry Co, 146 NLRB 770 (1964), enf denied 344 F 2d 617 (8th Cir 1965) 83 Parkview Acres Convalescent Center, supra, Jefferson National Bank, 240 NLRB 1057 (1979), World Wide Press, 242 NLRB 346 (1979), Seal Trucking, Ltd, 237 NLRB 1091 (1978), Hilton Inn, 232 NLRB 873 (1977) 84 In her conversation with Cory, Nichols implied that if the Union were to become the bargaining representative of the Respondent's em- ployees the Respondent would not bargain with the Union, with the pos- sibility that a strike might well ensure resulting in serious problems for Sierra Hospital and its patients It should also be noted that "stricter and disparate working conditions," more about which will be discussed here- inafter, were imposed on Cory at this same meeting, which Cory consid- ered to be unfair and which she believed were imposed because of her union activities 85 7-Eleven Food Store, supra, Trinity Memorial Hospital of Cudahy, 238 NLRB 809 (1978), Sans Souci Restaurant, supra, Thermo Electric Co, 222 NLRB 358 (1976), enfd 547 F 2d 1162 (3d Cir 1977) 86 Meehan Truck Sales, 201 NLRB 780, 783 (1973) 87 Gossen Co, 254 NLRB 339 (1981) 88 7-Eleven Food Store, supra, Electrical Fittings Corp, 216 NLRB 1076 (1975) 89 7-Eleven Food Store, supra, Parkview Acres Convalescent Center, supra, World Wide Press, supra, Colonial Haven Nursing Home, 218 NLRB 1007 (1975) The Respondent cites the case of Bourne Co. v. NLRB, 332 F 2d 47 (2d Cir 1964), in support of its contention that Nichols' state- ments to Cory (even if made) did not constitute a violation of the Act However, the facts in the instant case differ in important and pertinent aspects from those present in Bourne The cases therefore are clearly dis- tinguishable Of significant note is the fact that in the Bourne case the in- formation sought was of a general nature (as to whether the employees were for the union), the principal interrogation was by a low ranking su- pervisor, the employees were interrogated informally while at work, and there was little showing of any pattern of employer hostility and discrim- ination However, in the instant case the information sought was particu- lar and specific, the interrogation was accomplished by one of the highest ranking supervisors at the Hospital (Nichols, the director of nursing), the 4. Other 8(a)(1) violations Additionally, the complaint alleges that about August 11, 1980, the Respondent, acting through Nichols, told an employee that "she was a disruptive influence because of her engaging in union activities and instructed her to cease such activities" in violation of Section 8(a)(1) of the Act. The Respondent denies this. Analysis and Conclusions The General Counsel in his brief asserts, "It is clear from the context of Nichols' entire testimony, that all of Cory's union activities were disruptive and thus an order to cease disruptive activities was also an order to cease lawful union activities." The Respondent on the other hand in its brief contends, "The allegations that Cory was told she was disruptive because of her union activi- ties and told to cease such activities is clearly without foundation. Virtually all of the witnesses in the trial, both Respondent and the General Counsel testified to Cory's previous problems concerning disrupting the staff, all of which occurred during periods absent any union activity and for all of which Cory was counseled or other appropriate action taken " The Respondent mis- conceives the thrust of the General Counsel's allegation. It is obvious that Nichols' remark to Cory about her being a "disruptive influence" was occasioned and di- rected solely toward the many complaints Nichols alleg- edly received from nursing staff employees concerning Cory's union activities and did not include within its meaning any reference to Cory's previous "problems" with employees at Sierra Hospital prior to the advent of the Union's organizational campaign.90 Be that as it may I agree with the General Counsel's assertion herein. In considering Nichols' statement in the context of its nature as being violative of Section 8(a)(1) of the Act, I note that Nichols, after apprising Cory of the complaints registered against her by other employees because of her "disruptive" union activities, told Cory that she could validly engage in such union activities, during her break periods and those of the other employees and during off- duty hours but not while on duty. Nichols also advised Cory that she was to stop discriminating in her conduct toward employees who had registered their indifference or opposition to the Union because this was also "disrup- tive" behavior. Had there been nothing else said by Nichols concerning Cory's union activities this would not have constituted a violation of the Act. The Re- employee (Cory) was interrogated within the context of a formal "coun- seling session" in Nichols' office, with additional acts of interference, re- straint, and coercion having been committed against this employee at the same time I therefore find that the Bourne case is not persuasive herein 90 This seems clear from the evidence herein Cory's previous "prob- lems" with other hospital employees, especially those concerning Phillips which were of common knowledge at the Hospital and which could be considered to be of a "disruptive" nature because other nursing employ- ees were "taking sides" between Cory and Phillips creating staff dissen- sion thus affecting the operation of the Hospital, were resolved in most part by Nichols or Ryland prior to the Union' s organizational campaign albeit in a less formal manner than the "counseling session" held on August 11, 1980 Enforcing this is the Respondent's apparent disregard of these "disruptive" problems when it appointed Cory to the position of coordinator thereafter SIERRA HOSPITAL FOUNDATION spondent had a right to limit the union activities of its employees to off-duty times and to preclude the disrup- tion of hospital routine which could result in possible harm to patients. However, the "counseling session" also included vari- ous other statements by Nichols which I found previous- ly herein to be unlawful under Section 8(a)(1) of the Act and which were construed by me to be coercive and in- timidating Add to this what can be ascertained from the evidence herein as Cory's state of mind during this con- versation, i.e., her belief expressed to Nichols that she had not done anything unlawful during her activities on behalf of the Union and her feeling that the "counseling session" itself was the result of her having engaged in such activities, and the effect of these statements by Nichols, who is the director of nursing, is readily dis- cernible, namely, that the Respondent wanted all Cory's union activities of whatever nature to cease 91 As stated before, the test applied in determining whether a violation of Section 8(a)(1) of the Act oc- curred is "whether the employer engaged in conduct which, it may reasonably be said, tends to interfere with the free exercise of employee rights under the Act." Ap- plying that test, I find that the Respondent did interfere with, restrain, and coerce its employees in the exercise of their rights guaranteed in Section 7 of the Act and has therefore violated Section 8(a)(1) of the Act. D. The Discrimination Against Marcia Cory Section 8(a)(3) of the Act prohibits an employer from discriminating against its employees in regard to hire, tenure, and other terms and conditions of employment for the purpose of encouraging or discouraging member- ship in a labor organization. The complaint herein alleges that on or about August 11, 1980, the Respondent "imposed stricter and disparate working conditions on its employee Marcia Cory by re- quiring said employee to report to Nichols daily at a fixed hour and to keep detailed records of her work sta- tions during the shift . . . because Marcia Cory joined or assisted the Union or engaged in other protected con- certed activities for the purposes of collective bargaining or other mutual aid or protection." The Respondent denies this allegation Analysis and Conclusions Direct evidence of a purpose to discriminate is rarely obtained, especially as employers acquire some sophisti- cation about the rights of their employees under the Act; but such purpose may be established by circumstantial evidence.92 Under the law if the employer's action 11 Note Cory' s remarks to Nichols concerning the "counseling ses- sion" itself and the "goals" imposed upon her by Nichols, more about which appears hereinafter Cory told Nichols, in response to what was happening, that had the Respondent 's employees been represented by a union at the time, the conversation concerning Cory' s union activities would not be taking place in the manner it was Cory also queried Nich- ols as to whether she was being subjected to the "counseling" and the "goals" imposed upon her because of her union activities 92 Jefferson National Bank, 240 NLRB 1057 (1979), Corrte Corp Y NLRB, 375 F 2d 149 (4th Cir 1967), Shattuck Denn Mining Corp v NLRB, 362 F 2d 466 (9th Cir 1966) 445 against employees is motivated by antiunion design such action is violative of the Act. Direct evidence of dis- criminatory motivation is not necessary to support a finding of discrimination and such intent may be inferred from the record as a whole 93 In Wright Line, 251 NLRB 1083, 1089 (1980), the Board stated, [W]e shall henceforth employ the following causa- tion test in all cases alleging violation of Section 8(a)(3) or violations of 8(a)(1) turning on employer motivation First, we shall require that the General Counsel make a prima facie showing sufficient to support the inference that protected conduct was a "motivating factor" in the employer's decision Once this is established, the burden will shift to the employer to demonstrate that the same action would have taken place even in the absence of the protected conduct. 14 14 In this regard we note that in those instances where , after all the evidence has been submitted , the employer has been unable to carry its burden , we will not seek to quantitatively analyze the effect of the unlawful cause once it has been found It is enough that the employees' protected activities are causally related to the employer action which is the basis of the complaint Whether that "cause" was the straw that broke the camel 's back or a bullet be- tween the eyes, if it were enough to determine events, it is enough to come within the proscription of the Act According to the evidence herein at the "counseling session" on August 11, 1980, Nichols imposed the fol- lowing requirements on Cory: to report to either the nurse supervisor on duty, Nichols, or Nichols' secretary when Cory arrived at the Hospital to commence her work shift; to keep a detailed record or log of her work stations throughout the Hospital, i.e., ICU, CCU, emer- gency room, etc., and to keep a record of her "dinner and breaktime" taken during her shift. That Cory was a knowledgeable, able, and competent nurse is obvious from the record That she was also a strong proponent of the Union, perhaps its most active adherent among the Respondent's employees at Sierra Hospital, is also clear herein Moreover, that the Respondent was fully aware of her union activities is apparent from the evidence since this was admitted by the Respondent's own wit- nesses. As the Board pointed out in Wright Line, supra at 1083-84, In modern day labor relations, an employer will rarely, if ever, baldly assert that it has disciplined an employee because it detests unions or will not toler- ate employees engaging in union or other protected activities. Instead, it will generally advance what it asserts to be a legitimate business reason for its action. And that is exactly what happened in this case. Nichols' statement to Cory that she was being disloyal to Sierra Hospital by engaging in activities at the Hospital on behalf of the Union significantly exposes the Respond- 11 Heath International, Inc, 196 NLRB 318 (1972) 446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ent's motivation for its actions. While there was some le- gitimate reason for Nichols' imposition of the require- ment that Cory maintain a record of her work stations througout the Hospital,94 the other recordkeeping re- quirements imposed on Cory, that of reporting to Nich- ols or the supervisor on duty when Cory arrived at the Hospital, and to record the occasions when she took her dinner or other breaktimes, appear clearly to be geared to Cory's union activities and the desire of the Respond- ent to keep an eye on her because of this or to restrict such activities. Cory's activities on behalf of the Union were being re- ported back to the Respondent through complaints by employees or otherwise. By keeping close track of Cory, especially with regard to her dinner and breaktime when she admittedly was engaging in campaigning for the Union and soliciting employee signatures on union au- thorization cards, and when she arrived at the Hospital which usually occurred at the end of the day shift, the Respondent could monitor her union activities and per- haps limit or even counter and negate Cory's effective- ness.95 Nichols' statements when considered in the con- text of the record as a whole, which were previously found to be of an interfering, restraining and coercive nature and unlawful, and most of which were made sig- nificantly at the same "counseling session" in which these "stricter and disparate working conditions" were imposed substantiates this. From all the foregoing, I conclude that the General Counsel made a prima facie showing that Marcia Cory's union activity was a motivating factor in the Respond- ent's decision to impose the aforementioned "stricter and disparate working conditions" on her. This having been established and in accordance with the causation test enunciated by the Board in the Wright Line case, the burden of proof shifts to the Respondent to demonstrate that the same action would have taken place against Cory even in the absence of her union activity. The Respondent asserts, that due to the numerous complaints from staff, Cory "was apparently abusing the unstructured aspect of her position by taking excessive breaks for lunch and dinner," she was told by Nichols "simply to comply with existing Hospital policies and procedures when she went on her lunch and dinner breaks, and to comply with existing Hospital policies and procedures when she skipped these break periods. She was also reminded to be sure to check in 'just to let her know she was in the building and where she was 94 The reasons advanced by the Respondent for such recordkeeping, namely, that it was required for purposes of budgetary fund allocation and cost accounting, is supported by the record evidence herein That this was also required of other employees who worked in various depart- ments or units in the Hospital outside their normal work stations would bolster this In fact, Cory testified that she had previously been keeping such records 95 I am not unmindful that, according to both Nichols and Etcheverry, Cory was also engaging in union activities during her worktime and that of other employees Even assuming this to be true the evidence strongly infers that the Respondent sought by its actions to curtail and if possible stop most, if not all, of Cory's activities on behalf of the Union not only the alleged unlawful ones despite Nichols' testimony to the contrary, and to dilute the effectiveness thereof The Respondent's union animus and its commission of other violations of the Act, as found herein, additionally support this inference going."' It is admitted that the coordinator's job was unique and required that Cory, in the performance of her duties, be all over the Hospital. The job had been as- signed to the director of nursing for this very reason. Her dinner and other breaktimes were not regimented as other employees' were because of her duty requirements, therefore she was not asked to keep such a record at the time she started working as coordinator. It was only after Nichols was advised that Cory was using her break- time to engage in union activities that a problem arose. The Respondent in its brief itself touched on the actual reason for the imposition of the above reporting require- ments providing the nexus therein, THe last problem area that was discussed with Cory was her being disruptive to the nursing staff and soliciting union cards on duty. At no time was Cory instructed to cease any protected activity. . .. In order to insure that there would be no mis- understanding, Nichols requested that Cory do no more than any other nurse was asked to do in re- porting breaktimes to their immediate supervisors. However, the record shows that nurses were required to report dinner, lunch, or breaktimes only when they failed to take their usual or scheduled breaks and not at all times as Cory was now required to do. And the reason for the stricter and disparate requirements as to Cory was to control or inhibit her union activities not just during her worktime, as the Respondent mentions, but as to whenever she was present at the Hospital. That Nich- ols allegedly limited her remarks to Cory's worktime is clearly countered by her other actions implying that this was directed at all Cory's union activities. In additional support thereof remains the Respondent's unlawful conduct directed at hindering the Union's orga- nizational campaign by interfering with, restraining, and coercing the Union's leading adherent among its employ- ees and the Respondent's virulent antiunion posture during such campaign, i.e., "Therefore, we will oppose this union with every ounce of engery that we have." At this point I think it desirable to note that, through- out my consideration of the issues herein, I have been conscious of and have followed the principles that union membership or activity neither confers immunity, nor is a guaranty against employer action for cause,96 and that the Board may not "substitute its judgment for the Re- spondent's business judgment" concerning actions taken against its employees.97 Notwithstanding the foregoing principles, in view of all of the above I find that the Re- spondent has failed to demonstrate that it would have taken the same action against Cory in the absence of her having engaged in union activities. Accordingly, for the reasons noted herein, I find that the Respondent violated 96 Maple City Stamping Co, 200 NLRB 743 (1972), Whitcraft House- boat Division, 195 NLRB 1046 (1972), Hawkins v NLRB, 358 F.2d 281 (7th Cir 1966) 97 Maple City Stamping Co, supra, Thurston Motor Lines, 149 NLRB 1368 (1964), Portable Electric Tools Y NLRB, 309 F 2d 423 (7th Cir 1962) SIERRA HOSPITAL FOUNDATION Section 8(a)(3) and (1) of the Act by imposing stricter and disparate working conditions on Marcia Cory.98 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III above, found to constitute unfair labor practices oc- curing in connection with the operations of the Respond- ent described in section I above, have a close, intimate, and substantial relationship to trade, traffic, and com- merce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free now thereof. V. THE REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Since the unfair labor practices committed by the Re- spondent were serious and go to the very heart of the Act, I shall recommend that it cease and desist therefrom and in any other manner from interfering with, restrain- ing, and coercing its employees in the exercise of the rights guaranteed to them in Section 7 of the Act.99 CONCLUSIONS OF LAW 1. The Respondent, Sierra Hospital Foundation, is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. United Food and Commercial Workers Union, Local 1288, United Food and Commercial Workers International Union, AFL-CIO-CLC is a labor organiza- tion within the meaning of Section 2(5) of the Act. 3. The Respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guar- anteed in Section 7 of the Act, and has thereby engaged in unfair labor practices in violation of Section 8(a)(1) of the Act by: (a) Creating the impression that the employees' activi- ties on behalf of the Union were under surveillance. (b) Threatening and warning its employees that it would not agree to improvements in working conditions, thereby in effect refusing to bargain in good faith with the Union absent a strike, and that it would be futile for them to select the Union as their collective-bargaining representative. (c) Coercively interrogating an employee concerning her union activities and sympathies (d) Telling an employee she was a disruptive influence because she engaged in lawful union activities and in- structing her to cease such activities. 96 See Wright Line, supra ss Hickmott Foods, 242 NLRB 1357 (1979) A broad order is warranted to remedy the Respondent's unfair labor practices herein since the Re- spondent's misconduct is such as "to demonstrate a general disregard for the employees' fundamental statutory rights " It should also be remem- bered that its misconduct was directed against the Union's strongest ad- herent at Sierra Hospital and because the Hospital is, comparatively speaking, a "small" health care facility, its actions, as set forth herein and any consequences to be inferred therefrom, would be well known to all its employees especially those in the nursing department 447 4. By imposing stricter and disparate working condi- tions on its employee Marcia Cory, requiring her to report to Beth Nichols or the nursing supervisor on duty daily at a fixed hour and to keep detailed records of when she took her dinner or other breaktimes, all be- cause she joined or assisted the Union or engaged in other protected concerted activities for the purposes of collective bargaining or other mutual aid or protection, the Respondent has engaged in unfair labor practices in violation of Section 8(a)(3) and (1) of the Act. 5. The unfair labor practices found above are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- edioo ORDER The Respondent, Sierra Hospital Foundation, Fresno, California, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Creating the impression that the employees' activi- ties on behalf of the Union are under surveillance. (b) Threatening and warning its employees that it would not agree to improvements in working conditions thereby refusing to bargain in good faith with the Union absent a strike and inferring the futility of employee se- lection of the Union as their collective-bargaining repre- sentative. (c) Coercively interrogating its employees concerning their union activities and sympathies. (d) Telling employees that they are a disruptive influ- ence because they engage in lawful union activities and instructing employees to cease such activities. (e) In any other manner interfering with, restraining, or coercing employees in the exercise of the rights guar- anteed them under Section 7 of the Act. (f) Discouraging membership in or support of United Food and Commercial Workers Union, Local 1288, United Food and Commercial Workers International Union, AFL-CIO-CLC, or any other labor organization, by imposing stricter and disparate working conditions on its employees as set forth above, or in any other manner discriminating against them with respect to their hire, tenure, or other terms, or conditions of employment. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Post at its Fresno, California facility copies of the attached notice marked "Appendix." 10 i Copies of the too If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended 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 pur- poses 101 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 Na- tional Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation- al Labor Relations Board " 448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD notice, on forms provided by the Regional Director for where notices to employees are customarily posted. Rea- Region 32, after being signed by the Respondent's au- sonable steps shall be taken by the Respondent to ensure thorized representative, shall be posted by the Respond- that the notices are not altered, defaced, or covered by ent immediately upon receipt and maintained for 60 con - any other material. secutive days in conspicuous places including all places