Paintsville Hospital Co., Inc.

724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Paintsville Hospital Company, Inc. and United Steelworkers of America, AFL-CIO-CLC. Cases 9-CA-19802-1, 9-CA-19802-2, 9-CA- 19802-3, 9-CA-19802-4, 9-CA-19802-5, and 9-RC-14304 26 February 1986 DECISION, ORDER, AND CERTIFICATION OF REPRESENTATIVE By CHAIRMAN DOTSON AND MEMBERS DENNIS AND JOHANSEN On 12 March 1984 Administrative Law Judge Claude R. Wolfe issued the attached decision. The Respondent filed exceptions and a supporting brief and the General Counsel filed an answering brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings,' findings,2 and conclusions only to the extent consistent with this Decision and Order. The judge found that the Respondent committed numerous violations of Section 8(a)(1) and (3) of the Act during an organizing campaign at its hospi- tal. While we adopt all of the judge's other find- ings, we do not adopt his findings that several of the Respondent's 'supervisory and managerial per- sonnel unlawfully interrogated and threatened em- ployees. With respect to the alleged interrogations by Su- pervisors Webb and Tackett, the judge found that, although they had displayed their sympathy and support for the employees' organizing efforts, as supervisors their inquiries to employees about those efforts necessarily violated Section 8(a)(1) of the Act. We disagree. ' The Respondent has excepted to the judge's ruling denying its motion for leave to file objections to the election based on evidence that several of its supervisors actively supported the Union' s organizing ef- forts The judge denied the Respondent's motion on the grounds that (1) Sec 102.69(a) of the Board's Rules and Regulations requires that objec- tions be filed with the Regional Director, and (2) the objections were in any event untimely since they were filed beyond the 5-day ]mutation period established by Sec 102.69(a) and (b) of the Board's Rules and Regulations and no other objections had been timely filed by the Re- spondent See Prudential Insurance Co, 215 NLRB 66, 67 (1974), enfd 529 F 2d 66 (6th Cir. 1976). We affirm the judge's ruling, for the reasons stated, and, accordingly, will issue a Certification of Representative 2 The Respondent has excepted to some of the judge's credibility find- ings. The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings In Rossmore House,3 the Board rejected a per se rule -that any and all questions to employees by management agents concerning union activities vio- late the Act. The Board held, rather, that such questions must be evaluated as to whether under all the circumstances, taking into account the realities of the workplace, they reasonably tend to restrain, coerce, or interfere with rights guaranteed by the Act. The Board noted several factors which might be considered: (1) the background; (2) the nature of the information sought; (3) the identity of the ques- tioner; and (4) the place and method of interroga- tion. We find that the third factor here, the identity of the questioner, compels the conclusion that the in- quiries by Webb and Tackett were not coercive. It is clear, as found by the judge, that both Webb and Tackett, though admitted supervisors, were sup- portive of the employees' organizing efforts. Webb, for example, among other things acted as an in- formant for the Union, keeping it apprised of man- agement's private statements and intentions con- cerning the organizing campaign. Union Represent- ative Claude Hall testified that he was convinced that Tackett also sincerely supported their efforts. It is equally clear that each of the employees questioned by Webb or Tackett knew of their prounion sympathies. Salyer, whom the judge found Webb interrogated on 14 June about the number and identity of employees who signed cards, testified that it was none other than Webb who had first told her whom to contact in order to find out what union to get in at the hospital. Adams, whom the judge found Webb interrogated on 21 June about whether she had attended that day's union meeting, who else was there, and whether she had signed a card, testified that it was Webb who had told her the day before that she should go to the meeting and sign a card. Van- hoose, whom the judge found Webb interrogated on 25 June about whether she was going to the next day's union meeting and on 27 June about how many employees were there, testified that Webb had told her at least twice previously that she and Tackett supported the employees. And Music, whom the judge found Tackett interrogated on 10 June about whether he had gone to the 6 June union meeting, who else was there, and whether he had signed a card, testified that he knew at that time that Tackett was prounion and was helping the Union in its campaign. Under these circumstances, where Webb and Tackett actually supported the Union and not the Respondent, and the employees knew of their sup- 2 269 NLRB 1176 (1984), affd 760 F 2d 1006 (9th Cir 1985) 278 NLRB No. 107 PAINTSVILLE HOSPITAL CO. ' 725 port, we find that their union-related inquiries to these employees did not violate Section 8(a)(1) of the Act.4 The judge also found that, in addition to interro- gating employees, Webb and Tackett warned em- ployees that they should remove their union but- tons, cautioned them that they would be dis- charged if Hisey found out they favored the Union, told employees that Director of Employee Rela- tions Lewis said he had fired Salyer because of her union activities and that he was going to get the other union supporters as well, told employees that Assistant Administrator Br-anon said that he had sent Music home because he wore a button, and told employees that they knew who had signed union cards and that management knew when there was going to be a union meeting. The judge con- cluded, again because Webb and Tackett were su- pervisors, that these statements unlawfully threat- ened employees with discharge or created the im- pression of surveillance. We also disagree with this finding. In not one of the instances above were Webb and Tackett acting on behalf of management, much less at management's direction. Rather, both were acting in their own interest and in accordance with their own sympathies which were plainly contrary to those of management. Their unquestioned goal was to assist and protect the employees from man- agement, not to coerce them. Thus, in warning em- ployees not to wear buttons and cautioning them not to reveal their sympathies to management, it is clear that Webb was only trying to protect the em- ployees from retaliation. And in telling employees that certain union supporters had been discharged for that reason or that management knew there was going to be a union meeting, Webb and Tackett were merely acting as informers, and not to re- strain concerted activity. Finally, Local Union Representative Blair acknowledged that Webb was only responding to her request for such informa- tion when Webb told her and employee Patty that Lewis had said he discharged Salyer because she was a leader of the organizing effort. Under analogous circumstances the Board has held that such supervisory conduct is not coercive. In Montgomery Ward & Co.,s the Board held that a supervisor's statement to an employee that the em- ployee would lose her job if she got involved with the union did not violate the Act where the super- 4 See Ohmite Mfg. Co., 217 NLRB 435, 439 (1975), enfd 557 F.2d 577 (7th (--it '1977); Pepsi Cola Bottling Co., 203 NLRB 183, 196 (1973), enfd. as modified 496 F.2d 226 (4th Cir 1974); Graneto-Datsun , 203 NLRB 550, 554 (1973) (finding similar inquires by prounion supervisors noncoer- cive) 5 115 NLRB 645 (1956) visor by stipulation was included in the voting unit. The Board reasoned as follows: Statements made by a supervisor violate Sec- tion 8(a)(1) of the Act when they reasonably tend to restrain or coerce employees. When a supervisor is included in the unit by agreement of the Union and the Employer and is permit- ted to vote in the election, the employees ob- viously regard him as one of themselves. State- ments made by such a supervisor are not con- sidered by employees to be the representations of management, but of a fellow employee. Thus they do not tend to intimidate employ- ees. For that reason, the Board has generally refused to hold an employer responsible for the antiunion conduct of a supervisor included in the unit, in the absence of evidence that the employer encouraged, authorized, or ratified the supervisor's activities or acted in such a manner as to lead employees reasonably to be- lieve that the supervisor was acting for and on behalf of management.6 More recently, the Board reaffirmed the principles enunciated above in Montgomery Ward in dismiss- ing allegations that supervisors unlawfully attempt- ed to decertify an incumbent union,7 and that a su- pervisor unlawfully disparaged an incumbent union.8 While' in all of these cases, unlike here, the su- pervisors were included in the voting unit, they cannot be so easily distinguished. As this case illus- trates, a supervisor need not necessarily be in the voting unit for employees "to regard him as one of themselves." Indeed, judging from the extent of Webb's and Tackett's prounion activities, it appears that insofar as they were agents of management at all, they' were so in name only.8 Accordingly, we 6 Id at 647. The record discloses no evidence that would render the Respondent liable under these principles 7 A. T. & K Enterprises, 264 NLRB 1278 (1982); Robertshaw Controls Co., 263 NLRB 958 (1982) 8 Bennington Iron Works, 267 NLRB 1285 (1983). 9 The extensive evidence of Webb's and Tackett's prounion sympathies and activities outlined above distinguishes this case from those where the evidence indicates a supervisor's mere "friendliness" with employees See, e.g., H B. Zachry Co., 261 NLRB 681 (1982) The cases cited by our dissenting colleague, Maidsville Coal Co., 257 NLRB 1106 (1981), and Daniel Construction Co., 241 NLRB 336 (1979), are also distinguishable. In Maidsville Coal the judge found that the alleged prounion supervisor had only limited prior involvement with the union and, despite that in- volvement, had alerted the employer's superintendent that union activity had commenced, informed the superintendent that a specific employee had signed a card, and subsequently told several employees that they "might just as well forget about the Union" because of the employer's opposition. In Daniel Construction the employer was unquestionably aware of its supervisors' prounion sympathies and ;activities, yet, as noted by the judge, "at no time were there any pronouncements or indications by management that the supervisors involved were not acting within the realm of their designated authority." 241 NLRB at 340 Here, in contrast, there is no evidence that the Respondent knew of Webb's and Tackett's proumon sympathies and activities. 726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD find that their -above-described statements, like their union-related inquiries, did not violate Section 8(a)(1) of the Act. We also disagree with the judge's finding that Shaw, the Respondent's financial manager, unlaw- fully interrogated Salyer when on 13 June he asked her how many employees she had signed up for the Union. Salyer was a known union supporter. Salyer herself testified that on 8 June she deliber- ately put a union card in front of promanagement supervisor, William Cook, to ensure that the Re- spondent would know of her activities. Further, Shaw's inquiry sought only the number of employ- ees Salyer had signed up, not the names of those employees. In these circumstances, we find that Shaw's inquiry did not violate the Act.10 Finally, contrary to the judge, we find that the General Counsel failed to prove that Lewis, the Respondent's director of employee relations, made any coercive statements when he met with Salyer at her request on 20 June. The judge found that Lewis was unlawfully attempting to extract infor- mation from Salyer when he told her at the meet- ing that he could not resolve grievances, threaten, interrogate, promise, or spy, but that if she wanted to volunteer information he would listen . However, Lewis' uncontroverted testimony, which the judge credited, indicates that Lewis was merely respond- ing to Salyer's complaints about working condi- tions at, the hospital and the fact that she had been discharged: Q. Okay. What happened at that meeting? A. Well, I met her at the restaurant and asked her if she'd like a cup of coffee or break- fast. And I believe she had a cup of coffee. And Betty proceeded to voice her dissatisfac- tion with being discharged; dissatisfaction with Hisey; the lack of supplies; the shortage of personnel. I told her that I was in no position to re- solve grievances, that I could not threaten, in- terrogate, promise, or surveil. And if she wanted to volunteer information, I could sit there and listen to it, but was in no position, other than to listen. It is clear from the foregoing that rather than at- tempting to interrogate Salyer, Lewis simply let Salyer know that he could not do anything which would constitute an unfair labor practice. Accord- to See generally Rossmore House, supra. Cf. also Olin Conductors, 185 NLRB 467, 481 (1970) (finding supervisor's similar inquiry to a known union supporter did not violate the Act) - ingly, we find that Lewis' statement did not violate Section 8(a)(1) of the Act.1 The judge also found that Lewis' remark to Salyer near the end of the meeting that he would see- what he could do about her discharge was a direct response to her statement that if he could get her reinstated she could stop the union campaign. The' judge concluded, therefore, that Lewis' remark constituted an unlawful inducement to Salyer. The record does not support the judge's finding. Only Salyer and Lewis testified about the content of ' their conversation. Salyer never men- tioned in her testimony that she said she could stop the union campaign if Lewis could get her reinstat- ed. And while Lewis testified that she said it, he also testified that his response was that he was in no position to do that, and that; again he could not do anything that would constitute an unfair labor practice. As Lewis' testimony was uncontroverted and the, judge did not specifically discredit it, we credit it. Thus, even if Lewis did make a conclud- ing remark that he would see what he could do for Salyer, in light of his prior statements above Salyer could not have perceived such a £emark,as an un- lawful offer of inducement. Accordingly, we find that this remark also did not violate Section 8(a)(1) of the Act. AMENDED CONCLUSIONS OF LAW Delete Conclusions of Law 4 through 10 and re- number the subsequent paragraphs. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below an d orders that the Re- spondent, Paintsville Hospital Company, Inc., Paintsville, Kentucky, its officers, agents, succes- sors, and assigns, shall take the action set forth in the Order as modified 1. Delete paragraphs 1(b) through 1(g) and relet-, ter the subsequent paragraph. 2. Substitute the attached notice for that of the administrative law judge. CERTIFICATION OF REPRESENTATIVE IT IS CERTIFIED that a majority of the valid bal- lots have been cast for the United Steelworkers of America, AFL-CIO-CLC, and that it is the exclu- 11 The judge also noted, in support of his finding, that Lewis had made a prefatory remark about the considerable amount of union talk at the hospital. The record, however, does not reveal when Lewis made this remark in relation to his statement above PAINTSVILLE HOSPITAL CO 727 sive collective-bargaining representative of the em- ployees in the following appropriate unit, All employees at the Employer's Paintsville, Kentucky facility, including service and main- tenance employees, ward clerks, registered nurses, licensed practical nurses, housekeeping employees, dietary employees, nurses' assist- ants, orderlies, central supply employees, cen- tral store employees and office clerical em- ployees, but excluding confidential employees, guards and supervisors as defined in the Act. MEMBER DENNIS , dissenting in part. I agree with my colleagues' adoption of the judge's findings that the Respondent violated Sec- tion 8(a)(3) and (1) by discharging four employees and laying off a fifth. I disagree, however, with their wholesale reversal of all the independent 8(a)(1) allegations the judge found. First, I cannot find lawful Financial Manager Shaw's telephoning employee Salyer at her work station to ask how many people she had signed up. Assuming without deciding Salyer was an open and active , union supporter,' such a remark is plainly coercive in light of the following circum- stances: (1) the background, a significant number of serious unfair labor practices; (2) the nature of the information sought, the strength of the organiza- tional drive; (3) the identity of the questioner, a high-level Respondent official; and (4) the place and method of interrogation, not a casual encoun- ter but a premeditated call to an employee at her work station.2 Nor can I join in finding that Employee Rela- tions Director Lewis did not violate the Act during his restaurant conversation with Salyer after the latter's unlawful termination. As the judge found, Lewis" statement he would listen to volunteered in- formation, despite his assertion that he could not interrogate Salyer, was plainly an attempt at un- lawful questioning. Likewise, the judge properly found that Lewis' promise to see what he could do to get Salyer's job back, as a response to her state- ment she wanted her job back and could halt the union campaign if she were reinstated , was an un- lawful inducement. My colleagues dismiss all the remaining 8(a)(1) allegations (involving interrogations, warnings, threats of discharge, impression of surveillance, etc.) on the ground that Supervisors Webb and Tackett, who made the statements, supported the union campaign. Although in the circumstances present here, the application of the general rule , See Rossnsore House, 269 NLRB 1176 (1984), affd. 760 F.2d 1006 (9th or. 1985). 2 Id at 1178 fn 20 may seem unduly harsh, I am not persuaded that Webb's and Tackett's proffered union sympathies are sufficient to justify deviation from the bright- line principle that an employer is responsible for a supervisor's conduct vis-a-vis its employees, wheth- er or not that conduct was authorized and even where it may have been specifically prohibited. See NLRB v. Ace Comb Co., 342 F.2d 841, 844 (8th Cir. 1965); Jays Foods, Inc. v. NLRB, 573 F.2d 438, 445 (7th Cir. 1978), cert. denied 439 U.S. 859 (1978). The Board has so held even where supervi- sors have engaged in some union activity. Maids- ville Coal Co., 257 NLRB 1106, 1122-1123 (1981), enf denied in part on other grounds 693 F.2d 1119 (4th Cir. 1982), enfd. in full after rehearing en banc 718 F.2d 658 (1983); Daniel Construction Co., 241 NLRB 336, 340 (1979). Further, an employer has broad latitude to discipline or discharge supervisors it believes may be or may have been disloyal. Parker-Robb Chevrolet, 262 NLRB 402 (1982). Ac- cordingly, I find, as did the judge, that Webb's and Tackett's conduct violated Section 8(a)(1) of the Act. 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. WE WILL NOT discourage membership in United Steelworkers of America, AFL-CIO-CLC, or any other labor organization, by discharging or laying off any of our employees or in any other manner discriminating against them in regard to their tenure of employment or any term or condition of employment. 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. WE WILL offer Melba J. Brown, Delmer Cox, Charles N. Patty, and Betty Salyer immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent po- sitions, without prejudice to their seniority or other rights and privileges, and make them, and Larry Music, whole for any loss of earnings, with inter- est, they may have suffered as a result of the dis- crimination against them. WE WILL notify each of them that we have re- moved from our files any references to their dis- 728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD charge or layoff and that their discharge or layoff will not be used against them in any way. PAINTSVILLE HOSPITAL COMPANY, INC. excess of $50,000 directly from points outside the State of Kentucky. Respondent is, and has been at all times material to this proceeding, a health care institution within the meaning of Section 2(14) of the Act and an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. Jane Ballenger Socoloff, Esq. and Carol Shore, Esq., for the General Counsel. Charles H. Zimmerman Jr. Esq., and Thomas C. Fenton, Esq., for the Respondent. Claude Hall, for the Union. DECISION STATEMENT OF THE CASE CLAUDE R. WOLFE, Administrative Law Judge. This consolidated proceeding was heard by me at Preston- burg, Kentucky, on October 18, 19, and 20, November 29 and 30, and December 1, 1983. The charges were filed on June 23 and 29, 1983. The complaint in Case 9- CA-19802-1, -2, -3, -4, -5 issued August 8, 1983,1 alleg- ing that Delmer R. Cox, Betty S. Salyer, Melba J. Brown, Larry Music, and Charles Nelson Patty were laid off and/or discharged in violation of Section 8(a)(3) of the National Labor Relations Act (the Act), and that various supervisors and agents of Paintsville Hospital Company, Inc. (Respondent) committed numerous viola- tions of Section 8(a)(1) of the Act by interrogating and threatening its employees, by creating an impression that employee union activities were under surveillance, by so- liciting employee complaints and grievances, by telling employees not to wear union buttons, and by advising employees that their fellow workers had been laid off, sent home, or discharged because of their union activi- ties. On September 15, the Regional Director for Region 9 ordered a hearing on issues raised by challenges to the ballots cast by 23 individuals in the August 18 represen- tation election in Case 9-RC-14304,2 and consolidated that case with the unfair labor practice proceeding for hearing. Respondent denies the commission of unfair labor practices. From the entire record, including my observations and evaluation of the demeanor of the witnesses as they testi- fied, and after consideration of the able posttrial briefs submitted by all parties, I make the following findings and conclusions. 1. JURISDICTION Respondent is incorporated in Kentucky and engaged at Paintsville, Kentucky, in the operation of a hospital providing inpatient and outpatient medical care services for the general public. During the 12 months preceding the issuance of the complaint, a representative period, Respondent derived gross revenues in excess of $250,000 from the operation of this hospital, and there purchased and received products, goods, and materials valued in i All dates are 1983 unless otherwise indicated. 2 The petition for election in Case 9-RC-14304 was filed on June 23 H. THE LABOR ORGANIZATION United Steelworkers of America, AFL-CIO-CLC (the Union), is a labor organization within the meaning of Section 2(5) of the Act. III. SUPERVISORS AND AGENTS The complaint alleges, Respondent agrees, and I find that the following named persons were supervisors and agents of Respondent at times material to the allegations of the complaint : James Branon, Bernard Dotson, Bill Drake, William Hisey, Tom Lewis, Margaret Petry, Barry Tackett, John Shaw, and Judy Webb. Respondent and the General Counsel stipulated that Barbara Allen was an agent of Respondent at times ma- terial to the complaint. IV. THE ALLEGED UNFAIR LABOR PRACTICES A. Preliminary Findings The independent violations of Section 8(a)(1) of the Act are attributed to Judy Webb, Barry Tackett, John Shaw, Barbara Allen, and Tom Lewis. Webb, Tackett, and Shaw did not testify and the testimony regarding their conduct is uncontroverted, is not inherently im- probable, and is credited. Similarly, Barbara Allen was called as a witness by Petitioner to testify on challenged ballots, but was never asked to testify with respect to her alleged conduct. Accordingly, the testimony regarding that conduct is uncontroverted and credited. About the first of May, there was some discussion among the employees to the effect they needed a repre- sentative. In mid-May, Betty Salyer commenced encour- aging other employees to seek union representation. Salyer then contacted Claude Hall, union representative, in late May or early June. A meeting between Hall and some of Respondent's employees was scheduled for and took place on June 6. On the morning of June 6, Super- visor Judy Webb called Salyer at her home and advised that Supervisor Barry Tackett had said that the hospital management knew there would be a union meeting that day. Webb promised to find out how management knew and to report back to Salyer. True to her word, Webb called back about 45 minutes later and reported to Salyer that Tackett had said that he had been told of the up- coming meeting by John Shaw, Respondent's financial manager. Employees, including Salyer, signed authorization cards for the Union at the June 6 meeting. Salyer was given additional blank cards which she solicited employ- ees, both at the hospital and away, to sign. On June 8, Salyer told Webb she had signed a union card, and solic- ited other employees to sign cards in Webb's presence. When Salyer gave one to Mabel Rowland, then a cook but now a supervisor, Webb cautioned her to hurry and PAINTSVILLE. HOSPITAL CO not let anyone see her.3 William Cook, whom I find to be a supervisor for reasons explained in, the section of this decision devoted to challenged ballots, also saw a blank authorization card in Salyer's possession, and com- mented, "Oh, no." During the week following the June 6 meeting, Bar- bara Allen a registered nurse who was then serving as a supervisor in the absence of Veronica Brown who was on maternity leave, called Salyer and asked if she knew what was going on. Salyer replied that she was again4 engaged in union activity and there had been a union meeting. Allen advised her to be careful, and that Salyer had not been fired during the previous campaign because Respondent knew employees did not then want a union, but that Salyer would get fired when Respondent found out about her current activity. On June 10, Salyer told Webb that employees were planning to wear union badges to work on the following Monday, June 13. On June 13, Supervisor John Shaw called Salyer at her work station and asked how many they had. Think- ing that Shaw was inquiring about the patient popula- tion, Salyer gave him that number. Shaw said that was not what he meant and what be meant was how many people she had got, signed, and obvious reference to her solicitation on behalf of the Union. Salyer professed not to know what he was talking about. He told her to wait until they were away from the hospital, and that he was a better friend than she might think. Later that day, Director of Nursing Petry told Salyer that William Hisey, the hospital administrator, had in- structed her to lay off all second floor ward clerks be- cause the number of full-time equivalents (FTE's) was too high in relation to the patient census. An FTE is a unit of 80 paid hours per 2-week pay period, including all paid vacations, holidays, or other paid hours within that period. Petry advised Salyer that she would be re- called as soon as the patient census went up. After Salyer talked to Petry, she reported her layoff to Shaw. He predicted that would cause trouble. She agreed, Shaw continued that the "girls" could not be blamed for what they were doing because they needed something. He then opined that if it would get rid of Hisey and Petry all would be well, and that is what he would ask for if the Union got in. Salyer asked how he knew so much about unions when she did not. Shaw re- joined, "Betty, you can't tell 'tine that. I know what's going on." He added that he had expected everyone to come in that morning with a union badge. Salyer again denied knowing about the Union. Shaw repeated that she could not tell him that, and that he also had friends there. The next day, June 14, Webb called Salyer and asked if there were enough cards. Salyer said she did not know. Webb then advised Salyer that if Salyer would talk to all the people, there would be more than enough. Webb then recited the names of 72 employees, depart- 3 Rowland was called by Respondent to testify on other matters but was not asked about this incident Accordingly, II have credited Salyer's testimony 4 Salyer had been active on behalf of another union the previous year 729 ment by department, asking with respect to each wheth- er Salyer had talked to them and whether they had signed a union card. Webb also named the ones she thought would sign the cards. By letter dated June 15, Hisey advised Salyer as fol- lows: A low patient census at Paintsville Hospital has forced me to take measures to reduce our FTE's. As you know, one of these measures was a tempo- rary layoff of all second floor ward clerks. This measure has reduced our FTE's, however, we find ourselves in need of a ward clerk on second floor. Due to this situation I have decided to perma- nently eliminate all ward clerk positions on second floor, with the exception of one 8:00 a.m. 4:30 p.m., Monday - Friday position. The most senior employee of the ward clerks that were places on temporary layoff will be retained for this position. I am sorry to have to inform you that you are not the most senior employees of that group. Unfor- tunately this means that your employment with Paintsville Hospital will be terminated. The effec- tive date, of this termination is the date of this letter. Director of Nursing Petry credibly testified that she had understood the ward clerk layoffs of June 13 were temporary. Hisey's letter to Salyer of June 15 confirms that was in fact the case, and that he only later decided to permanently terminate them . Hisey does not explain why it was necessary to terminate employees on indefi- nite layoff. When Hisey told Petry on June 15 that the 4 ward clerks were terminated rather than laid off, Petry insisted that she needed to, keep one. Hisey told her to bring back the most senior of the clerks. Respondent, in its posttrial brief, asserts that it was not Respondent's policy to lays off by seniority. This is cor- roborated by the absence of any provision in Respond- ent'spersonnel manual for the application of seniority in layoff or recall situations. The manual expressly states that when a reduction in force is necessary "those em- ployees who best meet the operational needs of the Com- pany will be retained." There is no evidence the reten- tion of Butcher rather than Salyer "best met" the hospi- tal's operational needs. Hisey's application of seniority in this situation was therefore inconsistent with Respond- ent's policy. Petry checked with the payroll department and ascer- tained that although Salyer had initially been employed before Butcher she, had left Respondent's employment for a time and returned after Butcher was hired. On the basis of their last hire dates, Petry concluded that Butch- er was senior and so advised Hisey. Hisey then author- ized Petry to recall Butcher, and she did. On June 16, Salyer called Petry and asserted that she was senior, to the retained employee, Teresa Butcher, and referred Petry to Respondent's personnel manual. Petry did not consult the manual, but reported the problem raised 'by Salyer to Hisey. Hisey told her that seniority only continued if the break in service did not exceed 30 days. Petry so advised Salyer. 730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hisey testified that the personnel policy in effect since June 1982 provides that seniority is not accumulated if the break in service exceeds 30 days. He was then con- fronted with Respondent's personnel manual which con- tains no such proviso but, rather, provides as follows: An employee's employment date is the date she/he starts to work with HMA.5 It does not change during continuous full-time or part-time employ- ment and is used as the basis for calculating seniori- ty. If an employee terminates employment and is later re-employed, the date of employment will be adjusted to include prior service. Hisey then testified that the foregoing extract was indeed the paragraph that dealt with seniority, but asserted that this was not complete and there was an addendum to the paragraph not included with the manual in evidence from which the extract came . Respondent's counsel then represented, in response to an order to produce, that the manual in evidence was effective June 1982 and contains the only rules in effect since that time. Inasmuch as the manual was produced pursuant to the General Counsel's subpoena and Respondent's counsel represents there is nothing else, which I have no reason to doubt, Hisey's persistence in testimony that the 30-day rule existed is not credited. Moreover, I find it difficult to believe that Hisey, the administrator of the hospital , was not aware of its nonexistence, and I conclude that his refusal to so concede was designed to justify the advice he gave Petry. An examination of employer records provides the in- teresting result that at the time of the layoff Butcher had in fact actually been employed 37 days longer than Salyer, notwithstanding Salyer's earlier hire date.6 This, however, is my computation, not Hisey's. The happen- stance that his seniority conclusion might have turned out to be correct does not obscure the fact that the reason purportedly relied upon by him in reaching that conclusion did not exist, and further fact that the existing policy, which in his capacity as administrator he was surely aware of, was readily available to him for review, but was ignored by him in the fact of Salyer 's reference to it, which I am convinced Petry reported, and Petry's concern that her selection might have been incorrect. Hisey concedes that he was aware that Salyer took a leading role in the Union's campaign and the she was the only ward clerk active for the Union that he knew of. After her termination Salyer met with Tom Lewis, Respondent's director of employee relations on June 20 and 21 . Their testimony is complimentary in some re- spects, but where their versions significantly conflict I credit Salyer because her account was believable, de- tailed, and delivered without equivocation , and because her demeanor was superior to that of Lewis. She im- 5 HMA is an abbreviation for Hospital Management Associates, Inc which is Respondent's parent corporation 6 Butcher was hired June 2 , 1973, and has since been continuously em- ployed Salyer was hired July 10, 1972, left September 6, 1973, was re- hired March 17, 1974, left February 28, 1977, and was then again rehired August 17, 1977, and was continuously employed until the layoff of June 13, 1983 pressed me as a forthright and candid witness whose tes- timony on most subjects had the ring of truth . Lewis, on the other hand, frequently took refuge in a failure of memory on cross-examination , although not so on direct examination, even though he was present throughout the testimony of the other witnesses who were sequestered. The impression he left was one of evasion and lack of candor when pressed. On June 20, Salyer requested through John Shaw, and was granted, a meeting with Lewis at the Heart 0' High- lands restaurant that same morning . Before - Lewis and Salyer met, Shaw had told Lewis that Salyer had been soliciting union cards at the hospital . At the meeting, Salyer complained about her discharge , hospital manage- ment, and the lack of sufficient equipment and employ- ees. Lewis asked if Salyer had spoken to Petry about the equipment and employee problems . She advised that she had told Petry of the lack of equipment . Salyer showed Lewis her termination letter. He commented there was a lot of union talk at the hospital . She feigned ignorance. Lewis asked if she wanted her job back, and receiving an affirmative response, said he would see what he could do. Lewis asked if she thought she was terminated due to union activities and, when she said she did not know, told her he hoped to get the situation straightened out. Lewis avers that he told Salyer he could not resolve grievances, threaten, interrogate, promise, or spy, but that if she wanted to volunteer information he would listen. He further testified that Salyer said she could stop the whole thing, obviously a reference to the campaign, if Lewis could get her reinstated . These two averments by Lewis are credited . The first had the ring of truth and the second is not all improbable, considering that Salyer was unemployed and probably needed employment. The next day, June 21 Salyer called Lewis and re- quested a meeting. He agreed and they met that morn- ing. She told him she wanted her job back. He told her she would have to fill out a new application to be reem- ployed, and gave her one. She filled out part of it, but did not complete the rest for the reason given to Lewis that there was no need to because she would never be permitted to work again. Notwithstanding her failure to complete the applica- tion, Petry called Salyer back to work October 4. Salyer then filled , out an application and returned to work Octo- ber 5. A emorandum of October 4, signed by Petry and Salyer, sets forth the reinstatement of the ward clerk po- sition due to an increase in patient census as reason for the recall. Salyer was not the only one with whom Respondent's agents discussed the Union in June, nor is her severance the only one at issue. About June 9, Webb told Kathy Adams and Donna Vanhoose that if Administrator Hisey found out they and Webb were for the Union he would get rid of them. On June 20, Webb told Adams that she should go to the union meeting that night and sign a card because they needed all the votes they could get. The following day, Webb asked Adams if she had gone and if she had signed a card. Adams answered "yes" to both questions, and named two other employees in re- sponse to Webb's asking who else was at the meeting. PAINTSVILLE HOSPITAL CO. 731 Later the same week Webb told Adams that Tom Lewis had said he was going to get Claude Hall and the union people. In late June, Adams wore a union button. Webb told her she should not because Administrator Hisey would start pressuring employees and would fire them. Adams removed the button, but had one on her purse the next day. She took it off because Webb told her that she would be fired if seen with it. Webb, within a day or two after this occasion, told Adams and Mabel Rowland she had told them to remove bu€tons because a reason to fire them would be found. Vanhoose credibly testified to three conversations, with Webb on about June 6. The first started with Van- hoose asking Webb if she thought the Union would get in. Webb said she thought so, and added that she, had gone out on a limb for the employees and they had better stand behind her. This statement contains no un- lawful element of interference, restraint, or coercion. Later that day, Webb said she knew Vanhoose had union cards, but she did not want to see them. Still later, Webb said she knew they all had signed cards, laughed, and left. About June 9, Webb and Barry Tackett told a group of employees that they were behind the employees, the employees should be as quiet as possible, and if the em- ployees were seen wearing union buttons they would be fired. When Adams protested that the employees would be protected, Webb said it would make no difference be- cause a way to fire them would be found. On June 20, Webb told Vanhoose to remove the union button she was wearing because she would be fired if anyone saw it. Vanhoose moved it onto her pocket, but Webb told her to put in her pocket. Vanhoose did so. On June 25, Webb asked Vanhoose if she was going to a union meeting. Vanhoose said she was. On June 27, when Vanhoose was in the kitchen with Webb and Tackett, Webb asked how many employees had attended a union meeting. Vanhoose said she did not know. Webb retorted that she had a list of all the em- ployees at the meeting . Vanhoose asked why Webb had asked her. Webb laughed. - In addition to her conversations with employees, Webb had several telephone talks with Sandra Blair, president of a union local at another employer active in the organizing campaign at Respondent 's facility, com- - mencing June 9. On that date, after Salyer had talked to Webb, Blair took the phone and asked if there was anyone at the hospital undecided about the Union whom Blair could explain it. Webb replied that everyone who worked for her was for the Union and had signed cards. Webb added that she was worried that Salyer would be fired because she was openly promoting the Union. Webb said that Administrator Hisey had inquired about union activity, but she had convinced him there were none to worry -about. She asked Blair to caution Salyer not to be so open with union cards. The conversation ended with Blair requesting Webb to call her if anything came up, and Webb giving Blair her name and phone number. On June 19 or 20, Webb called Blair and advised that Hisey had said Respondent had gotten Salyer and would do anything to weaken the people. Webb cautioned that Salyer should not come to the hospital because she was being watched, anyone Salyer talked to would be watched, and if Respondent found they had signed cards they would be fired. She added that a guard was report- ing the identity of employees who supported the Union to Hisey. On June 25, Blair called Webb and asked what she knew about the discharge of Charles Patty . Patty lis- tened on an extension phone. Webb did not know he had been fired, but offered that Tom Lewis had said he had gotten rid of Salyer and- Would get rid of the other union leaders,7 and asked if .Patty was one. Blair said he was. About July 1, Webb later called back and said the word around the hospital was the Patty was a leader and Re- spondent had gotten him. This later call of Webb is only a report of a rumor, and is not relied on. Blair and Webb had other conversations in June, but their content was not developed. The Discharge of Delmer Cox Cox was employed by Medical Services , a contract service covering the hospital's respiratory therapy de- partment, for about 3 months until the hospital took over and ran the service itself. The employee separation notice tendered Cox when he was discharged on June 8 shows he first worked for the operator and Cox's em- ployer on April 4. Cox was a respiratory therapy techni- cian. Anita Watts, the director of the department from Janu- ary 23 to May 27, credibly testified' that Cox worked under her supervision, was complete and thorough in his work, had excellent attendance and appearance, did ex- cellent charting work, was an all-around good employee whose work was of excellent quality, and who gave no problems with respect to cooperation . She further stated that she had never reprimanded or disciplined him, and that he was superior to respiratory therapy technician Monica Cantrell in attendance and quality ' of work. Watts characterized Cantrell as undependable. Watts was succeeded as the department director by Bernard Dotson,8 an admitted supervisor and agent. Cox did not work on June 6 and 7 because those were his scheduled days off. On June 6 ,- he attended a union meeting and signed -an authorization card. On June 8, just 12 calendar days after he as the position of department director , Dotson told Cox that he was discharged because he had found from other em- ployees that Cox's work was inadequate, he complained too much, and his charting of patient treatment was wrong. The separation notice prepared by Dotson states that the quality of Cox's work was unsatisfactory, and that Cox consistently complained about his workload and the work of other employees, was poor in cooperation and willingness, and was not eligible for reemployment. This bare conclusory documentation by Dotson is unsup- 7 Blair generally testified that Webb said Respondent was trying to get rid of union leaders. Patty's version, which I credit, is not inconsistent with Blair's, but is simply more specific and complimentary to the testi- mony of Blair. 8 Dotson did not testify. Accordingly, I have credited Cox's uncontro- verted testimony which appeared to be truthful when delivered. 732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ported by any testimony or other probative evidence. There is, however, significant evidence of unlawful moti- vation. Dotson and Cox had previously worked for an- other employer during a strike when Cox went on strike but Dotson continued working. In early August, Anna Ruth Jones, a ward clerk, asked Dotson why Cox was no longer employed. Dotson answered that it had started at their previous employer when Cox was for a union, Dotson was not, and Cox did not like the fact Dotson was going in and working overtime. Dotson continued that when he came to Respondent's employment he felt he and Cox would not get along because there were union activities going on, and that when he had asked Cox tot talk about it they had not gotten along, and "I just had to let him go." Dotson also fired Monica Cantrell on June 8, telling her that Watts and other had so many things against her that he felt he had to relieve her. He also told her that Cox had been terminated because he did not get along, was grumpy, and did not act like he wanted to do his job. When Cantrell wept and pointed out she had two children to support, Dotson relented and granted her an additional 30 days probationary period. The termination of both Cox and Cantrell is inconsist- ent with the testimony of Director of Employee Rela- tions Lewis that one employee had to be out from the respiratory therapy department. Assistant Administrator Branon who, according to Lewis, joined with Dotson in making the separation decision, did not testify. Respondent's personnel manual provides for a 3-month appraisal period after which a written performance ap- praisal is given by an employee's supervisor and a deter- mination is made whether to continue his or her employ- ment. By this standard, Cox would not have been due for appraisal until July, as Watts testified. Yet Dotson completed such an appraisal on June 8, only 12 calendar days9 after he became department head, and discharged Cox on that basis. Moreover, the discharge of June 8 fol- lowed a telephone conversation between Cox and Dotson that very morning wherein Dotson told Cox that he saw no, trouble with his work, charting, or anything like that. Further, Dotson's written evaluation of Can- trell on June 8 rates her higher than Cox in dependabil- ity, cooperation, and self-improvement, but equal in qual- ity of work, initiative, and personality, and lower only in quantity of work. This is clearly contrary to Watts' cred- ible testimony to the superiority of Cox over Cantrell as an employee. Cox testified that, during a meeting conducted by Watts in May to announce a need to cut hours due to low patient load, he stated, in the presence of Supervisor Shaw who briefly stood in the doorway, that it looked like the hospital was trying to get a union and he would do his best to help the Union. Watts does not recall Cox saying anything about the Union, and states Shaw was not at the meeting. Watts and Cox had equally impres- sive testimonial demeanor, and there is nothing in the record that gives me any reason to credit one over the other. Accordingly, I am unable to find that the evi- dence preponderates in favor of Cox's testimony on this incident. Blue Flash Express, 109 NLRB 591 (1954). The Layoff of Larry Music Music is a supply clerk in the central supply depart- ment. After May 19 his hours were cut10 to 2 halfdays a week until the week ending Friday, June 17. He worked 5 hours on Monday, June 13, 2-1/2 hours on Thursday, June 16, and 7-1/2 hours on Friday, June 17. At the close of the June 17 shift, Barry Tackett, the department supervisor, told Music that he would be working a full week the following week so far as Tackett knew. Music then worked 8 hours on Saturday, June 18, and 8 hours on Monday, June 20. Tackett told Music on June 20 that he would be working all day the next day so far as Tacket knew. Music signed a union card on June 6. On June 21, he wore a union button on his shirt while working. The button measures 2-1/4 inches in diameter and identifies the wearer as a "Volunteer Organizer" for the United Steelworkers of America AFL-CIO-CLC. Tackett asked Music to remove the button, and said the two of then would go to the kitchen to see if others were wear- ing them. They observed employee Donna Vanhoose wearing one, whereupon Tackett told Music to put the button back on. Music did so. At or about 10:30 a.m., Music was wearing the button at work as he passed by Respondent's assistant adminis- trator, James Branon. About 11 a.m., Tackett told Music that Branon had told him to send Music home because Branon had seen him with the union button. Music went home at noon. Tackett recalled Music to work on July 1, telling him that he had threatened to resign if Music was not recalled. Since July 1, Music has been working full time. On the day Music was sent home, Tackett and Judy Webb met, at their request, with Claude Hall, the Union's representative. They asked Hall what their rights were. Hall told them that as supervisors they had a right to persuade employees not to join the Union so long as they did not violate the law. After Webb expressed her sympathy for the employees, Tackett told Hall, as he, had told Music, that his boss had told him to terminate usic because he was wearing a union button. Shortly before Music signed a union card, Tackett asked him either if he had or was going to sign one, and got the answer that Music had signed or was going to. Tackett also asked if Music had gone to a meeting to sign ,a card, and who else was present. Music answered the first part of the inquiry affirmatively and said he could not remember in response to the,second. Music's testimony is confused, but is sufficiently clear to warrant a conclusion Tackett did ask about his union activities and the attendance of others at a union meeting. About June 29, Kathy Adams asked Judy Webb if Music had-been fired. Webb said he had been sent home for lack of work. Adams remarked there was always work in the central supply department, and asked if it was about the Union. Webb said she guessed that is what 9 At least 2 of these days were Cox's days off. 10 This reduction is neither alleged nor found to be unlawful PAINTSVILLE HOSPITAL CO. you get for wearing a button. Webb 'did not supervise Music, had no part in the decision to terminate him, has not been shown to be privy to any information lending reliability to this statement, and her comment appears to have been personal surmise. Wisconsin Motor Corp., 171 NLRB 1431, 1433 (Crosby) (1968). I do not believe this easily recognizable speculation in the response to Adams' question rises to the level of interference, restraint, or co- ercion. The Termination of Charles Patty Patty was employed by Respondent as a registered medical technologist from August 1, 1981, to June 25, 1983. His supervisor at the time of his termination was Laboratory Supervisor William Drake. Patty signed 3 union authorization cards dated June 6, June 11, and June 20. He attended the June 20 meeting and there spoke in favor of the Union. Commencing about June 20,11 Patty wore a union button on his laboratory jacket at work. Laboratory workers Fraley and England also wore union buttons. On June 22, Drake asked Fraley and Patty if they were wearing union buttons. Patty said, "Yes." Drake, an unimpressive and faltering witness of admitted poor memory who gave the impression of eva- sion and was less believable than Patty, testified that he did not know Patty was involved in the Union until he noticed Patty was wearing a union button on June 25 when he gave Patty his separation papers. He is not credited, and I find his testimony in this regard was de- signed to conceal his knowledge of Patty's activity. The determination to terminate Patty was allegedly reached during Lewis' visit to the hospital during the week of June 19. Lewis testified that, in accord with a policy to retain employees who best met the operational needs of the hospital, he met with Drake and Branon, and reviewed personnel files. He continues that after ex- amining Patty's file, he asked why Patty was still there because Patty had received a 1-day disciplinary suspen- sion in January for leaving the hospital before complet- ing his work. Lewis claims this record had a bearing on Patty's selection for layoff. Drake recalls that his meeting with Branon and Lewis started when he was asked why there was still a third shift with the census being so low. Drake says Lewis also asked why they still had Patty on the payroll. During the ensuing discussion it was explained that Patty was still there because he was a licensed technologist. After that, according to Drake, Branon told him to get rid of Patty because they were eliminating the third shirt and the census was low. I do not credit Respondent's testimony that Patty's personnel record had a bearing on his selection for dis- charge because Respondent also contends the need to eliminate the' third shift for the reason of low patient census caused the termination. If the latter be true, Patty would have been terminated regardless of the quality of his prior record. The separation notice issued Patty about 6:30 pm. on June 25, without prior warning, states that he was terminated "due to low patient census. ' 1 Bonnie Fraley testified that Patty wore a union button' for 2 weeks before his separation, but I credit Patty. 733 Paintsville Hospital is forced to reduce staff in order to cut costs and Mr. Patty's shift (11 p.m. to 7 a.m.) is being eliminated." This notice also notes Patty to be eligible for rehire and rates him good in quality of work and fair in willingness, cooperation, personal appearance, and health. Respondent obviously had not previously consid- ered his January conduct sufficient to require his separa- tion because he was still working in June and was admit- tedly, eligible for rehire. The effort to posit Patty's con- duct as a reason for his selection for discharge is pretext, and the act of raising it casts considerable doubt on the other reason advanced. I do not credit Drake's assertion that he told Patty his termination was due to the low census and Patty's former conduct because this is not consistent with the written reason given by Drake, be- cause Drake was not generally a believable witness, and because Patty credibly testified that Drake told him the abolition of the third shift was the reason. Respondent's attempt to embellish the reasons for discharge when combined with Drake's effort to conceal his knowledge of Patty's activity, i.e., wearing a union button for sever- al days prior to discharge, warrants an inference that the real motivation' for the discharge was that activity. Patty was the only medical technologist on the third shift, and Drake was the only other one in the depart- ment. The microbiology work which only Patty per- formed prior to his layoff is now sent to an outside labo- ratory. No evidence of the comparative costs of doing the work in or out of house was advanced. On, October 5, Drake called Patty, and informed him the census was up and Patty could return to work. Patty met with Drake at the hospital on October 6. Drake said Patty would work whatever hours were required, the length of his employment would depend on the patient census, and that the length of the employment and Patty's seniority would depend on the outcome of nego- tiations -with the Union if it got in. The offer to Patty, like the 'rehire of Salyer, took place after unfair labor practice charges had been filed and the complaint before me issued. During the pay period in which Patty was discharged, the patient census was indeed low and the ratio of paid hours was quite high. The census was considerably higher and the ratio lower when Patty was recalled in October. The Termination of Melba J. Brown Melba Brown entered the employ of Respondent on November 7, 1961. In 1983 she was a cook in the dietary department under the supervision of Judy Webb. On March 21 Brown injured her foot and ankle in a non- work related accident. She has, since that date, been under a doctor's care and unable to return to work. Re- spondent's personnel manual provides, in pertinent part, as follows: A permanent employee may obtain a leave of ab- sence whereby he/she may be absent from work without pay for a period in excess of 14 consecutive calendar days. Such leaves must be approved- by the appropriate Department Head and the Administra- 734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tor, and are usually granted for no longer than six months. An employee on an approved medical . . . leave off absence is not guaranteed his/her previous posi- tion or any other position upon return to work. If a position is not available when a leave expires, an employee may remain on a reinstatement -list for one month, after which time his/her employment will be terminated. Medical Leave A medical leave of absence may be granted to employees who cannot work due to non-occupa- tional illness or injury and who are not eligible for or have exhausted their ,paid sick leave. A request for a medical leave of absence must be accompanied by a written statement containing -the diagnosis of the employee's personal physician and the physician's estimate of the required length of the leave. Earned sick pay must be taken in full before a medical leave without pay will be granted. On April 16, Webb told Brown she was then receiving her last sick pay check and that any overpayments she had received were excused . Brown advised that she would visit the hospital doctor and would then talk to Webb about her sick leave . Webb instructed Brown to tell her what the doctor said. Brown visited the doctor at the hospital for a checkup on April 20. From the doctor's office she proceeded to Webb's office. Brown told Webb the doctor had con- cluded it would be some time before she could work, and she wanted to see Webb about medical leave. Webb said she and Assistant Administrator Branon had taken care of Brown's medical leave and she was on, medical leave effective April 16, and was not to worry. Brown asked if she had to sign any papers. Webb said, "No." 12 I note that Brown was in a wheel chair and under the care of the hospital's own doctor on the hospital's prem- ises, and this was well known to Webb. On June 22, Branon wrote Brown as follows: As you know, you have not worked a productive shift at Paintsville Hospital since March 2, 1983. Due to your injury you were paid sick pay benefits from that day until they were exhausted on April 16, 1983 . Since that time you have remained on our payroll but you have neither worked or received any pay. According to Paintsville Hospital's and HMA's Standard Personnel Policies, an employee has ex- hausted their sick pay benefits and cannot work due to a non-occupational injury must request a medical leave of absence. Sixty seven (67) days have passed since you exhausted your sick pay benefits and no 12 Brown's believable testimony to this effect is corroborated by that of Glenna Music, Kathy Adams, and Donna Vanhoose Mabel Rowland's testimony that Webb requested and Brown promised to deliver a doctor's statement that she could not work and was under his care is not credited. member of the management of this hospital has re- ceived such a request. Due to this situation, I am afraid I must terminate your employment with Paintsville Hospital. The ef- fective date of your termination will be the date of this letter. All termination benefits due to you, in- cluding vacation pay, will be paid on July 1, 1983. I regret this action, however, I must enforce our-Per- sonnel Policies. Brown called Branon on June 24 and reported her April 20 conversation with Webb. Branon asked where she had talked to Webb and who was present . She told him. He then said he would talk to Webb and call Brown no later than the following Tuesday . He never called Brown. Brown had taken part in an organizing campaign at the hospital by another union in the winter of 1982. Around Christmas 1982, she told Webb that it looked like the old employees would have to get a union in to survive. Webb agreed. In March 1983, prior to her injury, she talked to other employees about the necessity of a union. Webb told Kathy Adams, in March 1983, that Brown was for a union. On June 7, 1983, she signed a union authorization card, and thereafter solicited em- ployees to sign cards by way of telephone calls and during visits to the doctor at the hospital. I am persuad- ed, in view of Webb's close contact with the union cam- paign, her remarks to Blair that everyone who worked for her had signed cards,, and her interrogation of Salyer with respect to the card signing status of some 72 em- ployees, that she was aware Brown supported the Union. According to Director of Employee Relations Lewis, Brown was terminated at the suggestion of Branon and Webb as a part of Respondent's effort to reduce costs at the hospital. Branon and Webb purportedly told Lewis that Brown should be the one selected because her sick leave had run out, she was a poor employee, and had been admonished about bringing in a gun. As Lewis con- cedes, the termination of Brown had no effect on costs. According to Administrator Hisey, it was decided to eliminate one employee in the dietary department after Earl Holland, senior vice president of operations for Re- spondent's parent corporation , instructed him by phone in April or May to reduce man hours by 840 hours per pay period by the following morning. Hisey claims that Webb, in response to his direction to reduce her staff by one, told him Brown was the one to be reduced because her sick leave had run out. Lewis places Holland's phone call, made to Hisey in his presence, in May, and concurs' that Holland told Hisey to cut 14 employees or , 840 hours by 8 a.m. the next day. Brown was not terminated until June 22, long after Holland's call. Accordingly, that call could not have been the reason for the termination, nor does Branon's letter or the separation papers made out by Webb on June 22 claim that it was. The termination of Brown effected no savings to Re- spondent in any event because she was drawing no sick pay or other moneys from Respondent at the time. In fact, the termination cost the hospital $649.60 in separa- tion pay to Brown, and it would logically appear that the payment of this amount would increase hospital costs for a time at least. The evidence simply does not support PAINTSVILLE HOSPITAL CO. Respondent's reliance on an economic defense with re- spect to Brown's discharge, but rather clearly shows this defense is false. The reason for any selection for termina- tion, according to Respondent, was to reduce full-time equivalent hours. The separation of Brown could not do this, and I do not believe Lewis and/or Hisey, both of whom claim to have been bent on cost reduction, would have, if their claim were true, agreed to the termination of a no-cost employee rather than one drawing wages. Webb rated Brown on Respondent's "Employee Sepa- ration Sheet," dated June 22, 1983, as good in quality of work, willingness, cooperation, and personal appearance. The only other rating factor on the form is health, and Brown was understandably rated fair in that factor. This rating contradicts Lewis' report that Webb considered Brown a poor employee. Lewis claims that Branon and Webb told him Brown should be the employee terminat- ed because her sick leave had expired, she was a poor employee, and she had brought a gun to the hospital. In the absence of the testimony of either Webb or Branon, and considering the testimony of Hisey which does not claim the receipt of any such information from Webb or Branon, I do not credit Lewis that Webb and/or Branon made the comments about Brown that he claims they did. Lewis was not a witness whose demeanor inspired confidence, and I conclude he engaged in some embel- lishment in an effort to establish some tenable cause for Brown's termination. Hisey testified that Webb chose Brown to be reduced, and told him the reason was that Brown's sick leave had expired. Hisey's testimony in this regard is hearsay inso- far as the truth of Webb's purported advice is concerned, and the failure of Webb to testify leaves Hisey's testimo- ny lacking in evidentiary weight. I have some doubt that Webb told Hisey what he claims she did. I have found that Webb assured Brown that her medical leave had been arranged by Webb and Branon. Neither Webb nor Branon appeared to contradict this arrangement or ex- plain the apparent change of heart evidenced in their June 22 writings. There is no showing either was not available to Respondent, and the failure to call these su- pervisors strongly suggests their testimony would not have supported Respondent's defenses in this as well as other instances where their participation was crucial. Respondent's Economic Defense Respondent basically urges that the employees alleged- ly discriminated against were laid off, cut back, or termi- nated because the ratio of paid employee hours to pa- tients was too high. It is true that the hospital was under pressure to reduce paid hours commencing in early 1983. On March 18, Earl Holland, the senior vice president for operations of Respondent's parent corporation, instructed in writing that the hospital's paid hours would be imme- diately reduced by 464 hours. According to Lewis, Hisey told him within the week that the three laundry employees would be eliminated, a housekeeping employ- ee would be terminated, a guard's hours would be cut, and others whose jobs Lewis can not recall would be cut. Hisey does not speak to the March 18 memo or any conversation with Lewis the following week. He testified 735 that Holland 13 called him in April or May and ordered him to reduce paid hours by 840 hours per pay period by 8 a.m., the next morning. Hisey continues that he met with Supervisors Branon, Petry, and Shaw on the day of the call, and it was then decided to eliminate the three laundry employees, one housekeeping employee, one in respiratory therapy, four ward clerks, and one in the die- tary department, and one in the laboratory. According to Hisey, this decision was implemented the next day. He specifically recalls that Melba Jane Brown, Charles Patty, Larry Music, Delmer Cox, and Betty Salyers were among the employees eliminated. Hisey's testimony is pa- tently incredible. Apart from his generally poor testimo- nial demeanor, the layoffs and terminations ranging from June 8 to June 25 were obviously not implemented in April or May pursuant to a phone call the day before. Petry credibly testified that the cut back in ward clerks was first discussed on June 13, the same day it was decided to temporarily lay them off. Lewis recalls that he was present with Holland when Holland called Hisey and directed the immediate 840 hours reduction. He believes the call was in May, and as- serts that a May 2 memo from Hisey to Holland was in response to that call. May 1 was a Sunday, and I do not believe it likely Holland made a call on a Sunday. The memo recites a staff reduction of 11 employees including I from dietary and 1 from respiratory therapy, but does not name the employees involved. None of the other re- ductions listed are in classifications occupied by the al- leged discriminatees. According to Lewis, these reduc- tions did not bring about the desired results, and he therefore visited the hospital in June. Lewis is vague on dates, but places his' arrival at the hospital on June 19 or 20. He continues that he took part in decisions to elimi- nate one position in respiratory therapy, but then con- cedes he was not at the facility and took no part in the decision when Delmer Cox was discharged, and was not involved in the decision to cut back ward clerks, includ- ing 'Betty Salyer. Lewis does aver that he was party, during this late June visit, to the decisions to terminate Brown and Patty. Hisey testified that the directive to reduce hours was caused by a decline in patient census below 42 percent of occupancy (31 patients), the break even point. Lewis generally states that 40 percent is the break even point if costs are in line and there are the appropriate number of full-time equivalents, the appropriate number of employ- ees, appropriate inventory levels, good management techniques, and efficient and economical operation. The census fell below 31 one day in May. It was below 31 on 16 days in June, including 12 of the last 13 days in the, month. It was less than 31 on 25 days in July. There is credible evidence that Respondent had, prior to the events alleged in the complaint, resorted to tempo- rary layoffs, fewer hours, elimination of overtime, and giving employees days off without pay. These efforts to reduce payroll costs are not alleged as unlawful, nor do I find any evidence to support such an inference. The record suggests that prudent management might indeed 13 Holland did not testify. 736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD have required a reduction of paid hours. Although a factor to be considered, this does not require a finding that everyone laid off or refused work was so treated be- cause of Respondent's economic needs. Accordingly, I shall examine of the treatment accorded each of the al- leged discriminatees, and the reasons for that treatment in each instance. B. Conclusions Interference, Restraint, or Coercion For more than 35 years the test for measuring employ- er conduct to ascertain if it violates Section 8(a)(1) of the Act has been whether that conduct may reasonably be said to tend to interfere with the free exercise of employ- ee rights guaranteed by the Act. The subjective state of mind of the hearer is irrelevant. See, e.g., G. H. Hess, Inc., 82 NLRB 463 fn. 3 (1949); Masonic Homes of Cali- fornia, 258 NLRB 41 fn. 4 (1981). Much of the conduct to be measured is attributable to Judy Webb, an admitted supervisor and agent, who communicated to rank-and- file employees, as well as union agents, that she was in favor of them securing union representation. Throughout the month of June, Webb made reports to Union agent Blair of what she claimed to be statements and intentions of management officials. In addition , she cautioned em- ployees not to reveal their union support to other man- agement for their own protection. Respondent contends that because Webb was a sup- porter of employee union activities, and employees knew this, her statements did not reasonably tend to coerce employees. The General Counsel contends that Webb's conduct did have such a tendency and is attributable to Respondent by virtue of Webb's status as a supervisor and agent. I agree with the General Counsel. It is settled law that an employer must generally accept responsibil- ity for the conduct of its supervisors, and the Board has consistently refused to insulate an employer from respon- sibility for violations of Section 8(a)(1) of the Act com- mitted by supervisors merely because the supervisors were friendly to or active on behalf of union organizing. Maidsville Coal Co., 257 NLRB 1106, 1122-1123 (Free- man) (1981). B. E. & K., Inc., 252 NLRB 256, 258 fn. 4 261 (1980); Daniel Construction Co., 241 NLRB 336, 340 (1979); Southern Stevedoring Co., 230 NLRB 609 (1977). Accordingly, I conclude and find that the conduct of su- pervisors Webb and Tackett, who displayed ' a lesser degree of sympathy to union activities than Webb, is im- putable to Respondent, notwithstanding their friendliness toward or support for employees' union activity. Barbara Allen worked as acting supervisor in the ab- sence of Veronica Brown during the summer of 1983, and Respondent admits Allen was its agent at times ma- terial to this proceeding. Nevertheless, Allen is a regis- tered nurse normally employed as a staff nurse in the medical/surgery department under Brown's supervision, and it appears that her' stint of acting supervisor' was temporary. All of Respondent's nonsupervisory regis- tered nurses are included in a stipulated voting group in Case 9-RC-14304. Accordingly, I conclude, absent evi- dence to the contrary, that Allen is a member of that voting group. Allen's statements to Betty Salyer which are alleged as violations of Section 8(a)(1) were made during the time she served in Brown's place, and I find, in accord with Respondent's admission, that she was then acting as Respondent's agent in place of Brown. It is a close issue in my view, but it seems to me that her inclusion in the voting group and the absence of any evi- dence that Respondent specifically encouraged, author- ized, or ratified her comments, or did anything to lead employees to reasonably believe that Allen was acting on behalf of management, absolves Respondent from re- sponsibility for her allegedly unlawful statements. Mont- gomery Ward & Co., 115 NLRB 645 (1956). For these reasons, I am persuaded that Allen 's statements to Salyer did not have a reasonable tendency to interfere with Sa- lyer's statutory rights, and did not violate Section 8(a)(1) of the Act. Returning to Webb, I find that she, as a supervisor and agent of Respondent, violated Section 8(a)(1) of the Act by the following conduct, all of which had a reasonable tendency to interfere with employee rights. (a) By interrogating Betty Salyer, on June 14, with re- spect to the number of union authorization cards signed, and the identity of the signers. (b) By asking Kathy Adams, on June 21, if she had at- tended a union meeting, if she had signed an authoriza- tion card, and who else was at the meeting. (c) By asking Donna Vanhoose, on June 25, if she was going to a union meeting. (d) By asking Donna Vanhoose, on June 27, how many employees had attended a union meeting. (e) By warning employees on several occasions that they should remove and not wear union buttons. Schwan's Sales Enterprises, 257 NLRB 1244, 1248 (1981). (f) By telling employees they would be discharged if Administrator Hisey discovered they favored the Union. (g) By telling employees that Tom Lewis, director of employee relations, had said he would get union repre- sentative Hall and the union adherents. (h) By telling employees they would be fired or pres- sured if they were seen with union buttons. (i) By telling Donna Vanhoose that she knew Van- hoose had union cards and that she knew "they" all had signed union cards; by telling Betty Salyer that hospital management knew there would be a union meeting; and by telling Donna Vanhoose that she had a list of employ- ees who had attended a union meeting, Webb created an impression that union meetings and employee union ac- tivities were under surveillance by Respondent. Webb also made statements to Blair, the president of the,Union's local, which are alleged as violations of Sec- tion 8(a)(1). Blair is clearly not an employee of Respond- ent. The Board has, -however, held that the statutory term "employee" means "members of the working class generally," which includes former employees of the em- ployer charged, Little Rock Crate & Basket Co., 227 NLRB' 1406 (1977); Martin-Brower Co., 261 NLRB 752, 758 fn. 23 (1982); pickets not employed by the picketed employer, Consolidation Coal Co., 266 NLRB 670 (1983); and applicants for employment Phelps Dodge Corp. v. NLRB? 313 U.S. 117 (1941). The Supreme Court ex- plained, in Eastex, Inc. v. NLRB, 437 U.S. 556 (1978), PAINTSVILLE HOSPITAL CO. 737 that the statutory definition of employee "was intended to protect employees when they engage in otherwise proper concerted activities in support of employees of employers other than their own." Blair, an employee of a company unrelated to Respondent, is a member of the working class generally and was certainly engaging in the protected activity of union organization among Re- spondent's employees. The real question is whether Webb's private statements to Blair had any reasonable tendency to interfere with or coerce Blair in the exercise of her right, to engage in such organizational activity among Respondent's employees. The statements Webb made to Blair were part of a continuing dialogue between the two initiated and en- couraged by Blair for the purpose of obtaining inside in- formation on Respondent's attitudes and conduct with respect to the union organizing campaign. Webb's re- ports were exactly the type information Blair was seek- ing, and I do not believe they either intimidated Blair or had any reasonable tendency to interfere with the pro- tected activities of Blair who was, as an employee in an entirely different and unionized industry, insulated from retaliation by Respondent. The reports of Webb to Blair that Hisey and Lewis had said Salyer was let go because of her union activities and that Lewis added he was going to get the union people are entitled to probative weight, even though hearsay. The Board has the right to rely on hearsay testimony in the proper circumstance, RJR Communications, 248 NLRB 920, 921 (1980). This is such a circumstance. Neither Hisey nor Lewis denied that they had made these statements attributed to them by Webb. Lewis merely testified he was not involved in the decision to lay off ward clerks. Hisey only denied that union activities in any way caused Salyer 's dismissal, and just does not recall if any union adherent was named in supervisory meetings . This 1 estimony of Hisey, and Lewis does not controvert the statements of Webb, as re- ported by Blair and Patty. Accordingly, the statements of Webb, a supervisor and agent of Respondent, are given evidentiary weight. American Art Clay Co., 148 NLRB 12909, 1219 fn. 16 (1964); Drico Industrial Corp., 115 NLRB 931, 932 (1956); cf. Orenduff & Kappel, Inc., 118 NLRB 859, 862-863 (1957). I further find that al- though Webb's statements were not violative of Blair rights, her report on June 25 that Lewis had said he had gotten rid of Salyer and would get rid of other union leaders violated Section 8(a)(1) of the Act because it was overheard by Patty on the extension, and obviously tended to restrain him in the free exercise of his Section 7 rights. It is not clear that Webb knew Patty was listen- ing in, but whether the communication to Patty was un- intentional is immaterial . Viele d Sons, 227 NLRB 1940, 1944 (1977). When Barry Tackett asked Larry Music about his union activities and those of other employees, he en- gaged in coercive interrogation violative of Section 8(a)(1) of the Act. Tackett's instruction to Music to remove the union button from his uniform was remedied by Tackett's prompt reversal of that instruction, and therefore had no lingering tendency to.restrict Music in the exercise of his Section 7 rights. A finding of violation of the Act in this instance would serve no statutory pur- pose. However, when Tackett told Music he was being sent home because Branon saw him wearing the button he did violate Section 8(a)(1) of the Act by clearly in- forming him his exercise of his rights had caused him to lose work. Martin-Brower Co., 261 NLRB 752, 758 (1982) (statement of Pennino). When John Shaw, Respondent's financial manager, without any apparent justifiable cause, interrogated Betty Salyer on June 13 with regard to how many employees she had sign union authorization cards, he violated Sec- tion 8(a)(1) of the Act. The evidence does not support the complaint allega- tion that Tom Lewis, on June 20, "created an impression among its employees that their union activities were under surveillance." His comment that there was a lot of union talk at the hospital was a statement of fact which may have put Salyer on guard, but did not rise to the level of the complaint allegation. Lewis' advice that he would listen to volunteered information, after telling Salyer that he could not interrogate her, was a rather ob- vious effort to extract information about the goings on at the hospital, including union activity, and violated Sec- tion 8(a)(1) of the Act. That he was indeed interested in information about union activity was conveyed by his prefatory remark about the presence of considerable union talk at the facility. I am not persuaded, however, that his offer to listen was directed, or would be reason- ably construed as being so directed, at soliciting and/or promising to remedy grievances. On the other hand, I am persuaded that his promise to see what he could do about Salyer's termination was a response to her advice that she wanted her job back and could stop the union campaign if she were reinstated. Viewed in that light, his promise was an inducement to Salyer , to refrain from union activities, and therefore violated Section 8(a)(1) of the Act. Melba J. Brown Respondent's purported economic defense with respect to Brown's termination and Lewis' efforts to portray Brown as a poor employee who brought a gun to the fa- cility are false reasons manufactured for the purpose of obscuring the real reason . Branon's failure to call back or make any other effort to explain to Brown why she was terminated notwithstanding Webb's notice that she and Branon had taken care of Brown's medical leave, and the failure of Respondent to call either Branon or Webb to contradict the arrangement described by Brown persuade me that neither Webb nor Branon could or would rebut Brown's testimony and lends additional support to my fording that Respondent advances false reasons. Brown was active in soliciting employees to sign union authori- zation cards. Respondent, by its agent Webb who alleg- edly participated in the decision to dismiss Brown, knew of these activities. Respondent concedes it was hostile to unionization, and its various violations of Section 8(a)(1) and the unlawful treatment of other employees discussed below reveals a willingness to commit unfair labor prac- tices to avoid the prospect of union representation of its employees. 738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The combination of union activity, company knowl- edge and hostility, other unfair labor practices, and the fair inference of discriminatory motivation to be drawn from the failure of Respondent's purported reasons for discharging Brown, Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466, 470 (9th Cir. 1966), requires a ford- ing that the General Counsel has shown by a preponder- ance of the credible evidence, direct and circumstantial, that Respondent discharged Melba J. Brown for the pur- pose of discouraging union activity among its employees. By so doing, Respondent violated Section 8(a)(3) and (1) of the Act. Delmer Cox The discharge of Cox on June 8, the first working day after he attended a union meeting and signed a union card is suspicious in itself. Respondent was aware there was a union meeting on June 6, and Dotson knew that Cox was favorably inclined toward union representation. There is no explanation from Dotson why he elected to evaluate employees on June 8, or why he advised Cox on that morning that there was no trouble with his work and then, the same day, rated his work as unsatisfactory. Respondent has advanced no credible explanation for Cox's discharge, and the true explanation is provided in Dotson's admission to Anna Ruth Jones that he had'to let Cox go because they disagreed over union activities. The discharge of Cox was, I find, like other of Respond- ent's activities designed to discourage union activity and violated Section 8(a)(3) and (1) of the Act. Larry Music Music was a union adherent. This was made obvious to Respondent on June 21 when Music wore a large button at work. He was sent home a scant half-hour after he wore it in the presence of Branon. The admissions of Barry Tackett to Music and Claude Hall that Branon di- rected him to send Music home because he was wearing a union button are diapositive absent contradiction by Branon, Federal Rule of Evidence 801(d)(2)(D); Ameri- can Art Clay, supra; Drico, supra. Respondent's argument that Music was working part time due to the low census throughout June is not impressive. Tackett had told Music he would be working a full week, and Music worked full weeks throughout July when the census was even worse than in June. Moreover, Respondent never clearly posits any specific reason Music was sent home on June 21. The reason given by Tackett was the real reason, and that reason is unlawful. Accordingly, I ford Respondent's action of sending Music home on June 21, and thereby depriving him of the full-time work he had been promised, violated Section 8(a)(3) and (1) of the Act as a deliberate effort to discourage employee union activity. Charles Patty Patty was one of three laboratory employees who wore union buttons to work. There is no allegation or evidence of retaliation against the other two. Standing alone, these facts do little more than show that the Re- spondent knew all three were union adherents. In Patty's case, however, Drake sought to conceal the fact that he knew Patty was wearing a union button before the date of discharge. I have found that this attempt at conceal- ment and the pretextual nature of one reason for dis- charge advanced warrant an inference of unlawful moti- vation, and I further find these factors seriously diminish the weight of the arguably good cause of low census. Weighing Respondent's other unfair labor practices, the advancement of a false reason for the discharge, the failure to show that the cost of replacing Patty's services were less than the wages Patty would have earned, and the concealment of knowledge of Patty's union sympa- thies against Respondent's proffered cause of low census and high ratio of paid hours to patient census, which loses persuasiveness by virtue of the additional false cause advanced, I am persuaded that the General Coun- sel's case has not been rebutted and the evidence prepon- derates in favor of a fording that Patty was singled out for discharge for the purpose of discouraging union ac- tivity. This selection violated Section 8(a)(3) and (1) of the Act. Betty Salyer In its personnel manual, Respondent asserts that it will resist all attempts by labor organizations to organize any of its employees. That this resistence is not limited to lawful means is illustrated by its violations of Section 8(a)(1) and its unlawful discharges and layoffs of employ- ees other than Salyer. With respect to Salyer, Respondent admittedly knew she was a leader in the Union's organizing efforts. There is insufficient evidence to support a fording that the original temporary layoff of the ward clerks on June 13 was unlawful, but the subsequent termination of Salyer is another matter. The statements of Hisey and Lewis, re- ported by Webb, to the effect Salyer had gotten rid of her because of her union activities combined with Hisey's unexplained actions of terminating already indefi- nitely laid-off employees and applying seniority to reten- tion contrary to Respondent's written rules, the failure of either Hisey or Petry to examine Respondent's manual for the correct seniority rule, and Hisey's incredible in- sistence on a false rule for computing seniority persuade me that Respondent was bent on removing Salyer, saw its chance, and did so because of her union activities. I do not think it farfetched in these circumstances to con- clude, as I do, that Hisey, determined to get rid of Salyer and knowing of her breaks in service, told Petry to apply seniority in retention because he believed that would assure that retention of Butcher rather than Salyer. When the selection was challenged by Salyer, he con- cocted a nonexistent rule to perfect the scheme and dis- guise his unlawful conduct. The termination served no apparent purpose but to permanently sever Salyer. The rehire of Salyer after the complaint issued is irrelevant. Similarly, the fact that Salyer actually had less seniority than Butcher is irrelevant because Respondent's estab- lished standard for retention was circumvented by Hisey when he applied the nonexistent seniority standard for unlawful reasons. For the above reasons, I fmd Salyer's discharge was effected on June 15, 1983, for the purpose PAINTSVILLE HOSPITAL CO. of discouraging employee union activities, and therefore violated Section '8(a)(3) and (1) of the Act. V. THE CHALLENGED BALLOTS: CASE 9-RC-14034 On August 18, 1983, pursuant to a Stipulation for Cer- tification upon Consent Election approved by the Re- gional Director for Region 9 on July 27, 1983, an elec- tion by secret ballot was. conducted by the Board among employees of the hospital in two separate voting groups14 to determine whether these employees desired representation by the Union for the purposes of collec- tive bargaining. The stipulation also provided that regis- tered nurses ,(voting Group B) should vote whether they desired to be included in a bargaining unit with the non- professional employees (voting Group A). The tally of ballots in voting group B was 16 for inclusion in a unit nonprofessionals, none against, and 7 challenged ballots; Because a majority in voting group B voted for inclusion in the unit with the nonprofessional employees, their bal- lots were included in the overall tally for voting group A. The tally for the overall unit (voting groups A and B combined) reveals that of approximately 128 eligible voters, 118 voted. 56 ballots were cast for the Union, 39 against, and there were 23 determinative challenges. The challenged voters are: Melba Jane Brown Debbie Meadows Veronica Brown Minnie L. Mendenhall Madonna Bryant Charles N. Patty' Tom Callahan Sharon Pennington Earlene Castle Gene Picklesiner William Cook Evelyn Roberts Delmer Cox Betty Salyer Ruth Cuzzort Anna Mae Saylor James Hall Barry Tackett Margaret Hamilton Sylvia Thomas Judy Herron Karen Zik Roberta Holderby Melba Jane Brown, Delmer Cox, Charles N. Patty, and Betty Salyer, whom Respondent contends are not el- igible voters because they were discharged prior to the payroll eligibility period ending July 9, 1983, were un- lawfully terminated and were therefore eligible to vote in the August 18 election, Martin-Brower Co., supra. The challenges to their ballots are overruled. At hearing, the Union withdrew its challenges to the ballots of Ruth Cuzzort, Judy Herron, and Roberta Hol- derby, all of whom the Union challenged as supervisors. Neither the General Counsel nor Respondent objected to, the withdrawal of these challenges, Accordingly, I find Cuzzort, Herron, and Holderby are eligible voters. 34 The voting groups set forth in the Stipulation are: Voting Group: All employees at the Employer's Paintsville, Kentucky facility, including service and maintenance employees, ward clerks, licensed practical nurses, housekeeping employees, dietary employ- ees, nurses' assistants, orderlies, central supply employees, central store, employees and office clerical employees, but excluding all reg- istered nurses, confidential employees, guards and supervisors as de- fined in the Act Voting Group B: All registered nurses employed by the Employer at its Paintsville, Kentucky facility, excluding all other employees, guards and supervisors as defined in the Act. 739 Barry Tackett was challenged by the Union on the ground he was a supervisor. The complaint alleges, Re- spondent admits, the parties stipulated, and I find Barry Tackett was a statutory supervisor within the meaning of Section 2(11) of the Act. The challenge to his ballot is sustained. The Union and Respondent stipulated that Sharon Pennington, challenged by the Union on the ground that she was hired after the election eligibility date, was an employee prior to the eligibility date and is an eligible voter, The. Union withdrew its challenge, and I find Sharon Pennington to be an eligible voter, The Board agent conducting the, election challenged Earlene Castle and Anna Mae Saylor on the ground their names were not on the election eligibility list. At hear- ing, the parties agreed that Castle was an ineligible voter because her employment was terminated prior to the eli- gibility and election dates. The parties further stipulated that Saylor was an ineligible voter. Accordingly, the challenges to the ballots of Castle and Saylor are sus- tained. Minnie L. Mendenhall was challenged by the Union on the ground she is a confidential employee. Respond- ent disagrees. The Union adduced no persuasive evi- dence in support of its challenge, and therefore has not met its burden of proof. Compare NLRB V. Hendricks County Rural Electric Corp., 454 U.S. 170 (1981). The challenge to Mendenhall's ballot is overruled. The Union challenged the ballots of Veronica Brown, Madonna Bryant, Tom Callahan, William Cook, James Hall, Margaret Hamilton, Debbie Meadows, Gene Pick- lesiner, Evelyn Roberts,' Sylvia Thomas (aka Kitty), and Karen,Zik on the ground they are statutory supervisors. Respondent, took the position they are not. James Hall is the assistant administrator and occupied that position continuously for Hospital Management As- sociates and its predecessor owner until at least Septem- ber 1983. James Branon, assistant administrator and ad- mitted ' supervisor and agent, notified all' employees by memo ' of January 27, 1983, that ' all departments were under the supervision of Shaw, Mills, Hall, and Branon, and that department employees were directly under the supervision of their department head. Shaw, like Branon, is an admitted supervisor and agent, and both are on the same administrative level as Hall. A memo of August 23, 1983, from the administrator notified all, employees that Jim Hall, assistant administrator, was directly responsible for the housekeeping, maintenance, and security depart- ments, and the personnel director, and that each of those department heads were to report directly: to Hall. An or- ganizational chart subsequently issued, dated, August 1983, showed Hall as assistant administrator with the above-named departments under his control. I conclude that Hall is a management employee with supervisory powers to control the operation, and thus the work of the employees, in the departments for which he is re- sponsible. The challenge to his ballot is sustained. Hisey identified Gene Picklesiner and Evelyn Roberts as department heads who attend supervisory meetings. An August 31, 1983, memo from the'new administrator, Sam Fowler, to department heads was sent to Pickle- 740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD siner, Roberts, Cook, Meadows, and Thomas. An earlier memo to department heads from Hisey on April 26, 1983, named Cook, Thomas, Picklesiner, and Roberts as among the recipients. It is settled that titles are not deter- minative of status, Magnolia Manor Nursing Home, 260 NLRB 377, 385 (Banks) (1982), but Respondent's person- nel manual vests authority in department heads to waive employee notification of absence as a condition of eligi- bility for sick leave; to approve employee time off with- out pay not to exceed 14 days; to approve leaves of ab- sence for a period in excess of 14 days; to authorize em- ployees to make up lost work time by staying on duty beyond the scheduled work time; to approve an excused absence with pay or a leave of absence without pay to attend workshops and conventions beneficial to profes- sional advancement; and to adjust employee grievances at the second step of Respondent's grievance procedure. In addition, Assistant Administrator Branon issued a memorandum to all employees on January 27; 1983, wherein he stated that employees are under the direct su- pervision of the head of the department in which they work, and should take their employement problems to the department heads. The authority to adjust grievances is sufficient under Section 2(11) of the Act to establish supervisory status, and the authority to grant or deny employee leave has been held to a supervisory function. Washington Beef Pro- ducers, 264 NLRB 1163, 1174 (1982). Moreover, Re- spondent held department heads out to employees as su- pervisors, and told the employees in writing that the de- partment heads were their direct supervisors, Washington Beef, supra, and department heads, but not their subordi- nates, attend supervisory meetings with management offi- cials, Associated Hospitals of -East Bay, 237 NLRB 1473 (1978). The foregoing is, without more, sufficient to es- tablish that five department heads are statutory supervi- sors, and there is additional evidence to add support to this conclusion. Gene Picklesiner, the salaried head of maintenance,15 has issued written disciplinary memoranda; has sent an employee home for one day because he refused to work overtime; has threatened to fire an employee; has hired an employee; and daily assigns work to maintenance men. Prior to Picklesiner's employment, Assistant Ad- ministrator Branon told Cecil Tackett, maintenance man, that Respondent was going to bring in a supervisor to tell Tackett what to do. Sylvia Kitty Thomas credibly-testified that she was the salaried director of housekeeping from April 4 to Sep- tember 12, 1983, and was given authority by Branon to direct the department as she wished, which authority was extended by Fowler, the new administrator, after Branon left. She exercised her independent judgment in selecting an employee for layoff; cutting employee hours; daily assigning work to housekeeping employees; and changing employees' schedules and shifts. Assistant Ad- ministrator Jim Hall told employee Robert Perkins when Thomas was hired that she would be Perkins' supervisor. She later, in the independent exercise of her authority, assigned Perkins to another shift against his will. William Cook is the director of radiology. He author- izes overtime and has orally warned Susan Barnett of discipline if she does not wear her hearing aid. Barnett refers to Cook as her supervisor. In August 1983, Debbie Meadows was in-service di- rector, training employees on new techniques, equipment, and procedures. That same month she assumed the addi- tional duties of public relations director reporting direct- ly to the administrator. Training other employees, al- though not a controlling factor, has been considered an indication of supervisory status. ITT Lighting Fixtures, 249 NLRB 441, 442 (1980). Evelyn Roberts is in charge of medical records. There is no testimony regarding her status other than Hisey's identification of her as a department head who attends supervisory meetings. The evidence with respect to William Cook, Debbie Meadows, Gene Picklesiner, Evelyn Roberts, and Sylvia Kitty Thomas is sufficient to support a finding, which I make, that they were supervisors at all times material to this proceeding. Although it is not clear to what degree and with what frequency each exercised supervisory au- thority, it is enough that, as Respondent's personnel manual clearly shows, the authority was possessed by them, Kern Council Services, supra. There is no showing that authority was ever taken from them, and Respond- ent concedes its personnel manual contains the rules in effect at all times material to this case. Respondent has not, so far as the record shows, informed any employee, orally or in writing, that, the written instruction reciting the supervisory status of department heads has been re- scinded. The challenges to the ballots of William Cook, Debbie Meadows, Gene Picklesiner, Evelyn Roberts, and Sylvia Kitty Thomas are sustained. Karen Zik has been the obstetrics supervisor since May 1983. At that time Director of Nursing Petry intro- duced her to obstetrices employees as their meetings, prepares employee work schedules, schedules employee overtime, calls in replacements, makes written evalua- tions of employees,16 grants employee persuasive evi- dence that she had to consult' with higher supervision before taking any of these actions that are directed to employees. Clotine Whitaker credibly testified that Zik gave her an unsatisfactory evaluation, and thereafter re- moved her from weekend work, took the charge nurse job from her, and prohibited her from working in the de- livery room on the ground Whitaker was not capable. Inasmuch as Respondent's in-house publication for Sep- tember 1983 and Respondent's organizational chart for August 1983 indicate Zik is a department head, I con- clude she is. As a department head, the various authori- ties, described in Respondent's personnel manual-devolve upon Zik. On the foregoing, I am persuaded Zik has the independent authority, in the interest of Respondent, to discipline, responsibly direct, and adjust _ grievances of 15 Maintenance man Cecil Tackett, who gave uncontroverted testimo- 16 The printed evaluation form shows-on its face that the evaluation is ny in regard to Picklesmer's status, is hourly paid to be performed by a supervisor. PAINTSVILLE HOSPITAL CO. employees. Karen Zik is a supervisor within the meaning of Section 2(11) of the Act, and Respondent has clearly held her out as such. The challenge to her ballot is sus- tained. Margaret Hamilton is the supervisor of the emergency room.17 She calls employee meetings and assigns them work. Nursing Director Petry has told employees to take emergency room work problems to Hamilton, and em- ployees do so. Hamilton attends supervisory meetings. Respondent's organizational chart shows Hamilton on the same level as Zik, Picklesiner, and Thomas, and ad- mitted Supervisors Webb, Tackett, and Drake. I con- clude and find that Margaret Hamilton is a statutory su- pervisor. The challenge to her ballot is sustained. Veronica Brown is the -supervisor of nurses in the medical/surgery department. Nursing Director Petry has introduced Brown to registered nurses as the supervisor over the department who would discipline and counsel them. Brown attends meetings of supervisors, calls meet- ings of the medical/surgical staff, assigns patients to nurses, and schedules employee hours. The schedules are posted and bear the signature of Brown and the title "Supervisor."' Requests for time off, excused absences, and vacations must be cleared through Brown. Brown has and exercises the authority to call additional employ- ees into work as needed. Employee timesheets are signed by Brown before they are submitted to Petry. Brown has the authority, in the interest of the Re- spondent, to assign, discipline, and responsibly direct em- ployees. The exercise of this authority appears to require independent judgment. Accordingly, I find Brown was, at times material, a supervisor within the meaning of Section 2(11) of the Act. The challenge to her ballot is sustained. Madonna Bryant is identified, in a September 1983 issue of the in-house newspaper, as supervisor of ICU- CCU. She was introduced by Petry to Eileen Saunders, R.N., as the supervisor of intensive care when Bryant was hired in 1982, and Petry has told employees in that unit that Bryant has full authority in the cardiac care unit. Respondent's August organizational chart shows Madonna Bryant as the supervisor in CCU/ICU. Bryant made written and oral evaluations of Saunder's perform- ance in 1982. On the foregoing evidence I conclude Bryant is, and was during the time of the election, a supervisor and an ineligible voter. The challenge to her ballot is sustained. Tom Callahan was employed in June or, July 1983. No one claims he was not on the payroll prior to the elec- tion eligibility date. I therefore conclude he was. When he was hired, John Shaw introduced him to office em- ployees as, the office manager who would schedule their work, and to whom they should take any problems they had. Office employees must secure permission from Cal- lahan to take a day off or leave early. They must notify him if they are off sick. Instructions on policy procedure emanate from Callahan. Although Melina Akers credibly 17 This conclusion is confirmed by Respondent's in-house newspaper, the testimony of Anna Ruth Jones, and a September 6 memo from Petry to all nursing units notifying that Hamilton was to be assistant director of nursing but would continue as emergency room supervisor 741 testified that Callahan interviewed applicants for employ- ment, there is no evidence to support a finding Callahan made any effective recommendations with respect to hiring or rejecting the applicants. My conclusion in Cal- lahan's case, like that in Bryant's case, is based on less evidence than I would like to have, but what the parties chose to proffer preponderates in favor of the Union's position that Callahan is a statutory supervisor. In so finding, I note that his name appears in Respondent's hi- erarchy chart on the same level with Barry Tackett, an admitted supervisor. Both Tackett and Callahan report directly to Financial Manager John Shaw who reports directly to the administrator. The challenge to the ballot of Tom Callahan is sus- tained. The nine ballots to which the challenges have been overruled are not determinative of the results of the elec- tion. Accordingly, they will not be opened and counted, and I will recommend that the Board issue a Certifica- tion of Representatives to the Union because it has ob- tained a majority of the valid ballots cast in the August 18, 1983 election. On the foregoing finding of fact and conclusions based thereon, and on the record, I make the following CONCLUSIONS OF LAW 1. The Respondent, Paintsville Hospital Company, Inc., is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union, United, Steelworkers of America, AFL- CIO-CLC, is a labor organization within the meaning of Section 2(5) of the Act. 3. The following unit constitutes a unit appropriate for collective bargaining: All employees at Respondent's Paintsville, Ken- tucky facility including service and maintenance employees, ward clerks, registered nurses, licensed practical nurses, housekeeping employees, dietary employees, nurses' assistants, orderlies, central supply employees, central store employees and office clerical employees, but excluding confidential employees, guards and supervisor as defined in the Act. 4. By coercively interrogating employees about their union activities and those of other employees, Respond- ent violated Section 8(a)(1) of the Act. 5. By creating an impression that union meetings and employee union activities were under surveillance, Re- spondent violated Section 8(a)(1) of the Act. 6. By directing employees to forgo wearing union but- tons, Respondent violated Section 8(a)(1) of the Act. 7. By threatening employees with discharge or other reprisals if they wore union buttons or engaged in other union activities, Respondent violated Section 8(a)(1) of the Act. 8. By telling an employee he was denied work because he was wearing a union button, Respondent violated Section 8(a)(1) of the Act. 9. By stating in the hearing of an employee that other employees had been or would be fired because of their 742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD union activities, Respondent violated Section 8(a)(1) of the Act. 10. By promising to see what could be done about an employee's unlawful discharge in an effort to induce her to refrain from union activity, Respondent violated Sec- tion 8(a)(1) of the Act. 11. By discharging Melba J. Brown, Delmer Cox, Charles N. Patty, and Betty Salyer, and laying off Larry Music in order to discourage union activity and member- ship in a labor organization, Respondent violated Section 8(a)(3) and (1) of the Act. 12. The violations of the Act set forth above are.unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY In order to remedy the unfair labor practices found herein, my recommended Order will require Respondent to cease and desist from further violations, to post an ap- propriate notice to employees, to offer Melba J. Brown, Delmer Cox, Charles N. Patty, and Betty Salyer uncon- ditional reinstatement to their former jobs, or substantial- ly equivalent positions if their former jobs no longer exist, to the extent Respondent has not already done so, make them whole for all wages lost as a result of their unlawful discharge, and make Larry Music whole for all wages lost as a result of his unlawful layoff on June 21, 1983. The backpay and interest thereon is to be comput- ed in the manner prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), and Florida Steel Corp., 231 NLRB 651 (1977).18 I shall also order Respondent to remove from its files any reference to the discharge of Melba-J. Brown, Delmer Cox, Charles N. Patty, and Betty Salyer, and the layoff of Larry Music, and notify them in writ- ing that this has been done and that evidence of their un- lawful discharge or layoff will not be used as a basis for future personnel actions against them. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed19 ORDER The Respondent, Paintsville Hospital Company, Inc., Paintsville, Kentucky, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Discouraging membership in ' the Union, or any other labor organization, by discharging or laying off employees or otherwise discriminating in any manner with respect to their tenure of employment or any term or condition of employment. (b) Coercively interrogating employees concerning their or other employees' union activities and desires. (c) Threatening employees with discharge or other re- prisals because they engage in protected union activities. (d) Promising benefits to employees in order to induce them to refraim from union activities. (e) Telling employees they may not wear union but- tons in nonpatient areas. (f) Creating an impression that other employees have been or will be laid off or discharged because of their union activities. (g) Telling employees that other employees have been or will be laid off or discharged because of their union activities. (h) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the purposes of the Act. (a) Offer to Melba J. Brown, Delmer Cox, Charles N. Patty, and Betty Salyer immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to a substantially equivalent position, to the extent Respond- ent has not already done so, without prejudice to their seniority or other rights and privileges, and make them and Larry Music whole for any loss of earnings they may have suffered by reason of the discrimination against them, in the manner set forth in the remedy sec- tion of this decision.' (b) Remove from its files any references to the dis- charges of Melba J. Brown, Delmer Cox, Charles N. Patty, and Betty Salyer, and the layoff of Larry Music on June 21, 1983, and notify them in writing that this has been done and that the unlawful discharges and layoff will not be used against them in any way. (c) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (d) Post at its Paintsville, Kentucky offices and facili- ties, copies of the attached notice marked "Appendix."20 Copies of the notice, on forms provided by the Regional Director for Region 9, after being signed by,, the Re- spondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. IT IS FURTHER RECOMMENDED that Case 9-RC-14304 be severed and transferred to and continued before the Board in Washington, D.C. IT IS ALSO RECOMMENDED that the challenges to the ballots of Melba J. Brown, Delmer Cox, Charles N. 18 See generally Isis Plumbing Co, 138 NLRB 716 (1962). 19 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. 20 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 Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." PAINTSVILLE HOSPITAL CO. Patty, Betty Salyer, Ruth Cuzzort, Judy Herron, Rober- ta Holderby, Sharon Pennington, and Minnie Mendenhall be overruled; the challenges to the ballots of Barry Tackett, Gene Picklesiner, Sylvia Thomas, Evelyn Rob- erts, James Hall, William Cook, Tom Callahan, Debbie Meadows, Margaret Hamilton, Veronica Brown, Madon- 743 na Bryant, Karen Zik, Anna Mae Saylor, and Earlene Castle be sustained; and a Certification of Respresenta- tives be issued by the Board to the United Steelworkers of America, AFL-CIO-CLC, for the appropriate collec- tive-bargaining unit hereinabove set forth.