Trover Clinic

6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Trover Clinic and Communications Workers of America, AFL-CIO. Case 9-CA-18469 30 May 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND JOHANSEN On 22 August 1983 Administrative Law Judge Steven M. Charno issued the attached decision. The Respondent filed exceptions and a supporting brief, and the Charging Party 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,' and conclusions2 and to adopt the recommended Order. i 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 Cit. 1951). We have carefully examined the record and find no basis for reversing the findings Contrary to our dissenting colleague, we find that Supervisor Troop's comments that employee Gibson "keep a low profile" and "be quiet with it" clearly referred to the latter's organizing activity As for the dissent's assertion that the judge applied a subjective standard in finding Troop's remarks unlawful, the judge found that Troop's comments "would rea- sonably tend to interfere with Gibson's free exercise of her employee rights." Furthermore, the judge correctly cited Jax Mold & Machine, 255 NLRB 942 (1981), and Hanes Hosiery, Inc., 219 NLRB 338 (1975), for the proposition that a supervisor's statements concerning an employee 's union activities can be coercive despite the friendly relationship between the in- dividuals and the well -intentioned nature of the statements We also agree with the judge that the Respondent violated Sec 8(aXl) by informing Gibson that a wage freeze would not be lifted "until the Union question was resolved " As the dissent admits, there is no evidence that the Respondent had any plans to lift the wage freeze However, by linking the continuation of the freeze to the Union, the Respondent placed the onus for the freeze on the Union As a result, the Respondent undermined and discouraged employee support of the Union in violation of Sec. 8(aXl) See Otis Hospital, 222 NLRB 402, 404-405 ( 1976), enfd. 545 F 2d 252 (1st Cir 1976). 2 In finding that the Respondent discriminatorily disciplined and dis- charged employee Gibson, we particularly rely on the judge's findings that the Respondent departed from its customary manner of responding to patient complaints concerning an employee's behavior or work per- formance. The Respondent's practice with respect to patient allegations of improper employee conduct was to investigate the matter and seek an explanation from the employee involved The judge found, however, that the Respondent assumed an accusatory tone when it raised the Littlepage complaint with Gibson, and that it rejected Gibson's attempt to explain and told her that her efforts to satisfy the patient were beside the point As for performance-related problems, the Respondent's policy, except in egregious cases, was to counsel the employee and give a series of repri- mands before reaching the discharge stage . Initially, we note that patient complaints concerning itemized account statements touched upon a sub- ject of ongoing misunderstanding . The evidence reveals substantial confu- sion among employees concerning the proper procedure for the produc- tion of itemized statements Yet the Respondent did not conduct an inves- tigation into the nature of the problem with itemized statements, nor did it counsel or reprimand Gibson about her difficulties with request forms before discharging her. Because we agree with the judge's finding that On 23 April 1982 Clinic Administrator Dockrey and Gibson discussed a cartoon the latter had in her possession. The cartoon depicted a nervous looking character with the following caption: "I've been beaten, kicked, lied to, cussed at, swindled, taken advantage of and laughed at, but the only reason I hang around this place is to see what hap- pens next!" Dockrey remarked that the cartoon was defamatory and would not be posted on the Clinic's bulletin board. Dockrey asked Gibson if she had distributed the cartoon. Gibson said she had not. Dockrey then told Gibson that the distri- bution of material similar to the cartoon "is not protected activity by the NLRB or anyone else, and can be regarded as grounds for dismissal." The judge found that the Respondent had failed to demonstrate the existence of "special circum- stances" to justify prohibiting the distribution of the cartoon, and that Dockrey's statement was a threat in violation of Section 8(a)(1) of the Act.3 The distribution of literature by employees in an employer's facility during nonworking times and in nonworking areas constitutes protected concerted activity provided the literature sought to be distrib- uted falls within the scope of the "mutual aid or protection" clause of Section 7 of the Act.4 The "mutual aid or protection" clause is to be interpret- ed with regard to the relationship the employees' activity bears to their working conditions.5 If found to be protected, and subject to valid rules limiting distribution, the employee literature loses this status only in limited circumstances.6 In considering the cartoon at issue here, the judge overlooked the threshold test of whether the material was protected by Section 7. Instead, the judge assumed the cartoon was protected and re- quired the Respondent to establish the special cir- cumstances which take employee literature outside the protection of the Act. We find that the cartoon was related to the employees' working conditions. Indeed, Dockrey's contention that the cartoon was defamatory amounts to a concession by the Re- Gibson's work deficiencies were not comparable to those of the one cleri- cal employee who had been discharged without prior warning , and given the discriminatory nature of Gibson's earlier discipline, we find that Gibson was unlawfully discharged. 8 The judge relied on Midstate Telephone Corp, 262 NLRB 1291 (1982), enf denied 706 F 2d 401 (2d Cir 1983); and Borman 's, Inc., 254 NLRB 1023 (1981), enf denied 676 F2d 1138 (6th Cir. 1982), which in- volved employees wearing T-shirts displaying union insignia and/or mes- sages pertaining to working conditions and employees' exercise of pro- tected concerted activities. 4 Firestone Steel Products Co, 244 NLRB 826 (1979) 5 Eastex, Inc v. NLRB, 437 U S. 556 (1978). 6 For example, literature containing attacks on an employer's products or services, NLRB v Electrical Workers IBEW Local 1229, 346 U.S 464 (1953), material so disruptive to threaten plant discipline , Southwestern Bell Telephone Co, 200 NLRB 667 (1972); and malicious falsehoods, Na- tional Steel Corp, 236 NLRB 1033 (1978). 280 NLRB No. 2 TROVER CLINIC spondent that it considered it to be directed at the Respondent's treatment of its employees. We fur- ther find that the cartoon's message did not remove it from the protection of the Act and that the Re- spondent did not establish the type of circum- stances that would render the cartoon unprotected. We therefore find that the distribution of the car- toon would constitute protected activity, and that Dockrey's description of that activity as possible grounds for discharge violated Section 8(a)(1).7 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Trover Clinic, Madisonville, Kentucky, its officers, agents, successors, and assigns, shall take the action set forth in the Order. CHAIRMAN DOTSON, dissenting in part. Contrary to my colleagues, and for the reasons set forth below, I fmd that the Respondent did not threaten employee Donna Gibson with discharge or unspecified reprisals for engaging in union or other protected activity, and did not condition ces- sation of a wage freeze on discontinuation of union activities.' First, I do not agree with my colleagues that the Respondent threatened unspecified reprisals against Gibson for engaging in union activity. The facts are as follows: Jay Troop, an hourly employee and a friend of Gibson, was appointed interim manager of Gibson's department. Troop was not opposed to the Union. A day or two after Troop's appoint- ment, Gibson facetiously told Troop that she had run a personal errand on companytime. When Troop gave Gibson a look of frustration, Gibson assured him she was only kidding. Troop then asked Gibson whether she had ever thought about "keeping a low profile." Gibson replied that any- thing to do with her union activities was her re- sponsibility, and she would not do anything to jeopardize Troop's job. Troop replied that he was not worried about his job, but was thinking of hers. When Gibson asked Troop to elaborate, Troop re- plied: "Don't you think you should keep a low profile for a while just for your job security. Just lay low and stay right within the system. Be quiet with it." Gibson expressed her disagreement with Troop and explained that the "system" had inter- ested her in the Union in the first place. 9 This conclusion is not affected by the fact, relied on by the judge, that Dockrey's prohibition was made immediately after reference to other clearly protected materials. There was no allegation and no finding that Dockrey's reference to those other materials was unlawful. i I agree with my colleagues that the Respondent unlawfully disci- plined and discharged Gibson 7 My colleagues agree with the judge that Troop threatened Gibson with unspecified reprisals for her union activities. I disagree. I note at the outset that it was Gibson, not Troop, who first interjected the Union into the conversation, and it was Gibson, not Troop, who returned to that subject. Indeed, Troop, who was not opposed to the Union, never mentioned the Union or Gibson's union activities at any time during the conversation. Thus, to the extent that (in the judge's words) "Troop delivered what Gibson understood to be a warning from [Troop] concerning her Union activities," any such impression on Gibson was entirely the product of her own fixation with construing Troop's remarks as being directed at her union activities. Moreover, the judge erred in applying a subjec- tive standard-Gibson's understanding of Troop's remarks-in analyzing whether these remarks had a reasonable tendency to interfere with, restrain, or coerce Gibson in the exercise of her union activi- ties. It is well settled that in evaluating an employ- er's conduct under Section 8(a)(1) of the Act, the test is not whether the conduct was coercive in actual fact (i.e., in the instant case, not what Gibson may have actually felt or understood), but whether the conduct in question had a reasonable tendency, under the totality of the circumstances, to coerce or intimidate.2 Applying this correct stand- ard eschewed by the judge (and, apparently, by my colleagues), I find that Troop's "low profile" remark to Gibson did not have a reasonable tend- ency under the instant circumstances to interfere with, restrain, or coerce Gibson in the exercise of her rights under Section 7 of the Act. More specifi- cally, Troop was a newly appointed, low-level, in- terim supervisor, a former hourly employee on friendly terms with Gibson, and not opposed to the Union. The conversation in question was initiated by Gibson's facetious remark, and the interjection of the Union into the conversation was entirely Gibson's doing. Troop's "low profile" remarks were prompted by Gibson's apparently cavalier at- titude towards her job and took the form of a well- intentioned personal suggestion. Under these cir- cumstances, I find that Troop's remarks did not violate Section 8(a)(1) of the Acts ' E.g., Amason, Inc, 269 NLRB 750 fn. 1 (1984); Fmrleigh Dickinson University, 264 NLRB 725 fn. 1 (1982), Norton Concrete Co., 249 NLRB 1270, 1274 (1980) 8 The cases relied on by my colleagues and the judge in reaching a contrary result are clearly inapposite. Jax Mold & Machine, 255 NLRB 942 (1981), unlike the instant case, involved an interrogation by a supervi- sor about employee union activities In Jax , a foreman asked his friend (an employee who was active in circulating a petition to withdraw sup- port from the union) whether he (the employee) thought there was a chance to get rid of the union. When the employee responded in the af- firmative, the foreman told the employee that he (the foreman ) thought Continued 8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I also do not agree with my colleagues that the Respondent violated Section 8(a)(1) of the Act when Clinic Administrator Daniel Dockrey told Gibson that the distribution of materials such as the cartoon in question (accurately described by my colleagues) was not protected by the National Labor Relations Act and could be regarded as grounds for dismissal. Contrary to my colleagues, I find that the General Counsel has not established that Gibson's distribution of the cartoon was an ex- ercise of protected activities. My colleagues correctly point out that in finding a violation of the Act in this regard, the judge er- roneously failed to address the threshold issue of whether the cartoon was protected by Section 7 of the Act. In attempting to take up the judge's burden on this aspect, my colleagues correctly state that in order to fall within the protection of the Act, the literature sought to be distributed must relate to employee problems and concerns as em- ployees and their interests in improving their work- ing conditions. Having correctly stated the law, my colleagues fail totally in their attempt to apply it. Thus, with- out any analysis of the facts whatsoever, my col- leagues simply state "We find that the cartoon was related to the employees' working conditions." The cartoon, of course, makes no reference at all to em- ployees, the Employer, the Union, or the clinic itself. Any relationship between the cartoon and working conditions would therefore have to be im- plicit. But I find no such relationship, even implic- itly, and I do not understand-and my colleagues certainly do not explain-how the cartoon's refer- ences to beating, kicking, lying, cursing, swindling, exploiting, and ridiculing have any relationship whatsoever to working conditions at the clinic. My colleagues cite no evidence, and indeed there is none, to show or even infer that there was so much as an instance (much less a practice sufficient to constitute a working condition) of such misconduct "that would be the best thing that ever happened ." Without passing on the question of whether I agree with the Board 's finding in Jax that the above colloquy constitutes an unlawful interrogation , I find in any event that the supervisory inquiry into and encouragement of antiunion activity in Jax is different in kind and degree from Troop's innocuous remark to Gibson in the instant case about keeping "a low profile." Hanes Hosiery, Inc, 219 NLRB 338 (1975), also involved an interroga- tion. A divided three-member panel of the Board reversed the administra- tive law judge's dismissal of the allegation and found instead that a fore- man unlawfully interrogated an employee (with whom the foreman had a "long, cordial work relationship") by asking her "a series of union-related questions, each of which fed upon [the employee's] previous answer " During the next 3 days, the foreman repeatedly asked the employee about the union activities of another employee. Although I fully sub- scribe to the well-reasoned dissenting opinion of Member Kennedy in Hanes Hosiery (see Sunnyvale Medical Clinic, 277 NLRB 1217 (1985); and Rossmore House, 269 NLRB 1176 (1984), affd 760 F.2d 1006 (9th Cir 1985)), the point here is that under any view of the facts in Hanes Ho- siery, those facts are clearly-and materially-distinct from and inapposite to the remark made by Troop to Gibson here at the clinic. Indeed, Gibson herself testified that the cartoon was inaccurate and untrue and bore no relationship to her employment or any other em- ployee's employment at the clinic. Thus, my col- leagues' purported finding of protected activity is both unsupported and unsupportable.4 I choose not to join my colleagues in their extra-evidentiary wanderings, and I therefore see no basis for finding that the Respondent threatened Gibson with dis- charge for distributing protected literature. Finally, I do not agree with my colleagues or the judge that the Respondent implicitly conditioned lifting of a wage freeze on the cessation of union activity. The credited evidence shows that prior to the organizing campaign, the Respondent had institut- ed a wage freeze because of cash flow problems. Gibson raised the subject during a conversation with Dockrey and remarked that the employees would like to see wages unfrozen. Dockrey replied that the freeze would not be lifted "until the Union question was resolved." Contrary to my colleagues, I am unable to find in these circumstances that Dockrey implicitly conditioned lifting the wage freeze on the termination of union activities. The conversation between Dockrey and Gibson oc- curred 1 week after the Union filed a representa- tion petition. Considered in light of the fact that the Union had invoked the process of the Board to determine the representation matter, I find that Dockrey's statement was merely an acknowledge- ment that the Respondent could not lift the wage freeze during the pendency of the representation proceeding. It is well settled that neither granting nor with- holding benefits during an election campaign is ille- gal per se. Such conduct becomes illegal only if the employer is found to be manipulating benefits in order to influence employees' decisions during or- ganizing campaigns.5 Here, there is no evidence that the Respondent had in fact planned, prior to the onset of union activity, to lift the wage freeze. Thus, there are no grounds for inferring that the Respondent was changing its plans in response to union activity. Absent such evidence, I see no basis 4 My colleagues' inferential house of cards is based on Dockrey's off- hand remark that the cartoon was "defamatory." This, say my col- leagues, "constitutes a concession by the Respondent that it considered (the cartoon] to be directed at the Respondent's treatment of its employ- ees " My colleagues thus attempt to build through Dockrey 's remark a budge between the cartoon's humorous, albeit sarcastic, caption and working conditions at the instant clinic That attempt simply amounts to a finding of violations by a preponderance of the inferences rather than a preponderance of the evidence 5 Schnadig Corp., 265 NLRB 147, 155 (1982); Travis Meat & Seafood Co, 237 NLRB 213, 217-218 (1978), enfd. in pertinent part 653 F.2d 233 (6th Cir. 1980), Osco Drug, 237 NLRB 231, 232 (1978), Big John Super Stores, 232 NLRB 134, 137-138 (1977) TROVER CLINIC 9 for fording that the Respondent violated the Act in this regard.6 Communications Workers of America, AFL-CIO (Union) is admitted to be, and I find is, a labor organiza- tion within the meaning of the Act. 6 See Lawson Co. v NLRB, 753 F 2d 471 (6th Cir 1985), NLRB v. Service Garage, 668 F 2d 247 (6th Cir 1982), Village Thrift Store, 272 NLRB 572 (1983). The cases relied on by my colleagues and the judge in reaching a con- trary result are clearly inapposite. In Jax Mold & Machine, supra, the em- ployer directly and expressly promised an employee that his "money would come up considerably if he would vote 'no' on the strike and help to destroy the Union " The instant case contains not even a hint of such calculated manipulation of benefits in order to influence employee con- duct against the Union Similarly, in World Wide Press, 242 NLRB 346 (1979), the employer changed its policy regarding ment wage increases directly and concededly in response to the union organization campaign. In the instant case, however, there is no evidence that the Respondent had planned to lift its wage freeze, and thus there is no evidence on which to find or infer that the Respondent changed its plans in response to union activity Engrid Emerson Vaughan, Esq., for the General Counsel. James U. Smith III, Esq., and W. Kevin Smith, Esq. (Smith and Smith), of Louisville, Kentucky, for the Respondent. Ronald M. Harleman , of Nashville, Tennessee, for the Charging Party. DECISION STATEMENT OF THE CASE STEVEN M. CHARNO, Administrative Law Judge. In response to a charge filed June 28, 1982, a complaint was issued on August 4, 1982, which alleged that Trover Clinic (Respondent) had violated Section 8(a)(1) and (3) of the National Labor Relations Act by threatening and interrogating its employees and by discriminatorily warn- ing and discharging employee Donna Gibson. Respond- ent's answer denied the commission of any unfair labor practice. A hearing was held before me at Madisonville, Ken- tucky, on February 1 and 2, 1983.1 At the hearing, the General Counsel's motion to amend the complaint to add an alleged violation of Section 8(a)(1) concerning a threat of discharge was granted over Respondent's ob- jection. Briefs were filed by the General Counsel and the Respondent under extended due date of March 21, 1983. FINDINGS OF FACT 1. JURISDICTION Respondent is a partnership organized under the laws of Kentucky, which operates primary outpatient health care centers in that State. Its offices and principal facility are located in Madisonville, Kentucky. During the 12 months preceding issuance of the complaint, a represent- ative period, Respondent, in the course and conduct of its business operations, derived gross revenues in excess of $500,000 and purchased and received products, goods, and materials valued in excess of $50,000 from points outside Kentucky. It is admitted, and I find, that Re- spondent is an employer engaged in commerce within the meaning of the Act. i Certain errors in the transcript are noted and corrected. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Donna Gibson was hired by Respondent to work in its patient accounts department on February 19, 1981, and was discharged from that department on May 26, 1982. Between the time she was hired and the onset of the union organizing campaign in March 1982, she was counseled only once concerning her performance. This occurred at the conclusion of her 90-day probationary period when Robert McClintock, the manager of the pa- tient accounts department, told her that she had been too aggressive in her attempts to get patients to pay their bills. Gibson received no warnings or reprimands prior to the organizing campign.2 Gibson attended the first meeting and joined the union organizing committee on March 11, 1982.3 Thereafter, she was "the one that got people in the Business Office and the Insurance Department interested and to come out to the meetings." Ultimately, this function was for- malized, and Gibson was appointed a department cap- tain. Her appointment was announced to the employees in the patient accounts department, but not directly to Respondent's management. Like other members of the organizing committee, Gibson solicited and obtained sig- natures on union authorization cards, wore union insig- nia, and distributed union literature. The latter activity was observed by Respondent's personnel director, Frank- lin Stevenson. Gibson, who was thought by other union adherents to be one of its more vocal supporters , also engaged in ac- tivities which were not participated in by other members of the organizing committee. She posted union parapher- nalia and literature in her office, which came to the at- tention of Respondent' s management . When Respondent announced that all union materials would have to be ap- proved by Stevenson before they could be posted on Re- spondent's bulletin board, Gibson volunteered to obtain the requisite approvals. She was the only employee to approach Stevenson in this capacity prior to the time of her discharge,4 and the president of the Union was un- 2 These findings are based on Gibson's unrebutted testimony. The evi- dence submitted by Respondent demonstrates that McClintock was not averse to counseling, warning, reprimanding , or discharging the employ- ees under his direction when such action was warranted. Gibson's per- sonnel file does not indicate that any such disciplinary actions were di- rected at her during this period, a fact which corroborates her testimony. The testimony of Supervisor Jeanne Henshaw and Controller Fayrene Fuller that they communicated complaints concerning Gibson to McClin- tock does not appear material for two reasons There is no evidence that McClintock found these complaints to be true, of substance, or without explanation. Further, there is no evidence that the alleged complaints were ever discussed with Gibson All dates hereinafter are in 1982, unless otherwise specified. Gibson and Leeta Jones, the Union's president , so testified. Steven- son, while admittedly "foggy" on the subject, testified that Gibson was responsible for only 2 or 3 of the 8 to 10 attempts made to secure ap- proval of union postings prior to May 26 . Stevenson was unable to supply any further information concerning the alleged attempts made by Continued 10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD aware of any other employee who dealt directly with Respondent's management on behalf of the Union prior to May 26. On April 9, two of the Union's International represent- atives and approximately 35 employees congregated at the Clinic to present a letter requesting recognition of the Union to Respondent's management. Just before 8 a.m., one of the representatives, flanked by Gibson and Leeta Jones (who later became the Union's president), and followed by the other employees, approached James Claysmith, Respondent's associate administrator. Clays- mith refused to shake hands and further refused to accept the letter. On April 12, the organizing committee prepared a handbill informing Respondent 's employees that the Union had cards from a majority of employees, the letter refused by Claysmith had been mailed, a repre- sentation petition would soon be filed with the Board, and the employees should be on guard against Respond- ent's propaganda. The same day, Gibson presented this handbill to Stevenson to be approved for posting. The following day, Gibson asked why she had heard nothing concerning the handbill, and Stevenson responded that Respondent's lawyers were examining it. B. The Littlepage Incident On April 12, Gibson was relieving the receptionist in the patient accounts department for lunch when she was approached by two patients, Barbara Littlepage and her daughter. Littlepage raised two problems, the first of which Gibson resolved to Littlepage's apparent satisfac- tion. The second problem concerned a debit balance of approximately $300 in the account of Littlepage's de- ceased aunt. Littlepage asserted that she had made a pay- ment of $300 which the Clinic had not credited. Gibson retrieved the account on her display screen and assured Littlepage that the $300 check had been credited. When Littlepage still insisted that the check had not been cred- ited, Gibson referred Littlepage to the account on the display screen. During the discussion, Gibson attempted to explain that the debit had been transferred from a Medicare account, but Littlepage cut Gibson off.8 Gibson offered to have the account audited, and Little- page responded that she would figure it out for herself. Gibson replied that she or another employee would try to explain the account further if Littlepage still had a problem. Littlepage left the patient accounts department, went to the lobby reception area, complained that she had a problem, and was referred to Respondent's controller, employees other than Gibson during that period . Based on Stevenson's admitted and demonstrated weakness of recollection and on my observa- tion of the demeanor of all three witnesses as they testified , I credit Gibson and Jones over Stevenson on this point. 5 It is by no means clear , as Respondent contends on brief, that Gib- son's attempted explanation of the debit balance was in error. It is uncer- tain from the record whether Littlepage was told that it was a residual transferred from a Medicare account or a direct patient billing that Medi- care did not cover. If, as Controller Fuller testified, resort to materials beyond the display screen was required to ascertain the precise cause of the debit. Gibson was not in a position to perform the required research because she could not leave the reception desk until the receptionist re- turned from lunch. Fayrene Fuller.6 Littlepage, who was visibly upset, com- plained to Fuller that an employee in the patient ac- counts department had not sufficiently resolved a prob- lem and had treated Littlepage in an arrogant and rude manner. Fuller went to the work location Littlepage de- scribed and found Gibson on duty. Fuller asked for a copy of the account, and Gibson replied she had just helped Littlepage with that account . Fuller responded that Littlepage was not satisfied and again requested the account. Referring to the display screen, Gibson showed Fuller that Littlepage's check had been credited to the account. While Fuller stayed in the reception area, Gibson went and made a copy, which she gave to Fuller.? Fuller returned to her office and called in Asso- ciate Administrator Claysmith, who listened to Little- page's complaint. 8 Fuller then asked Littlepage if the Clinic could audit the account and get back to her the following day. Littlepage accepted the suggestion and departed. At approximately 4 p.m. that day, Gibson was sum- moned to Claysmith's office. Gibson, Claysmith, Fuller, and McClintock were present at that meeting. Claysmith reiterated the substance of the Littlepage complaint. He then accused Gibson of not wanting to help Littlepage and of being rude and abusive and indicated that Re- spondent would not tolerate a patient being treated in that manner. Gibson denied that she had displayed an improper attitude and pointed out that she had offered to conduct an audit or refer Littlepage to another employ- ee. Claysmith indicated that Gibson's efforts were beside the point because she had made the patient mad. Gibson said that Claysmith had made up his mind before talking with her. Claysmith stated that he knew McClintock had counseled Gibson many times about being rude. Gibson responded she had been counseled only once by McClin- tock, a fact which McClintock confirmed. Claysmith suggested that Gibson might wish to transfer to another 6 Fuller testified that because she had received a large number of com- plaints concerning the patient accounts department, she ordered the re- ception desk in February or March to refer any new complaint concern- ing that department to her. None of the alleged complaints were docu- mented at the hearing Fuller subsequently testified as Respondent's wit- ness that she received all but two of the alleged complaints in April and May. In addition, Fuller's description of the referral by the lobby recep- tionist does not comport with the existence of a standing order to refer complaints Given her inconsistent testimony and based on my observa- tion of her demeanor while on the stand, I do not credit Fuller's explana- tion. 7 Gibson so testified. Fuller stated that Gibson had given Littlepage a copy of the account and that Gibson had admitted telling Littlepage to go home and figure it out Fuller's version of the conversation is contro- verted by the fact that no copy of the account was available until, tempo- rarily relieved by Fuller at the reception desk, Gibson was able to leave the area and make one. That Gibson did so is undisputed. Fuller's probity was also rendered suspect by her repeated, and less than candid, attempts to portray Gibson as a poor employee. For example, Fuller, in response to a question by Respondent's counsel, acknowledged that she had re- ceived a specific complaint about Gibson from employee Joyce Barton and had referred that complaint to McClintock in January or February. In response to questioning from the bench, Fuller later admitted that Barton had not complained about Gibson For the foregoing reasons and based on my observation of Gibson and Fuller while they testified, I do not credit Fuller's version of the conversation. a For the reasons set forth in fn 7, supra, I do not credit Fuller's ex- planation that she called in Claysmith because of complaints about the patient accounts department TROVER CLINIC department and stated that Respondent was going to document the incident in Gibson's personnel file.9 This meeting differed from Respondent's normal disci- plinary procedure in two significant respects. First, no attempt was made to ascertain whether Gibson had an explanation or could offer any mitigating circumstances relating to the complaint.10 The record discloses that other patient complaints of improper treatment by Clinic employees resulted in investigations in which the accused employees were asked to offer explanations. In at least two such instances, no discipline was imposed as a result of such explanations. Second, in a direct departure from Respondent's demonstrated practice, a complaint about an employee was not referred to and handled by the em- ployee's immediate supervisor."" On April 13, Claysmith dictated his version of the Littlepage incident in the form of a letter of complaint addressed to the Clinic. After it had been typed, Fuller took the "letter" to Littlepage's residence and secured the signatures of Littlepage and her daughter. Fuller was unaware of any other occasion on which Respondent had solicited such a statement from a patient.12 During the afternoon of April 13, Gibson was again summoned to Claysmith's office. Fearing that she would be disciplined, Gibson asked employee Beth Musgrove to accompany her as a witness. Claysmith informed Gibson she had no right to a witness and, when Gibson persist- ed, both Claysmith and McClintock stated that Gibson would not be disciplined.13 Musgrove then departed. 9 Findings concerning what transpired in the meeting are based on Gibson's generally unrebutted testimony Fuller testified that Gibson was not told that she would receive a warning during the conversation To the extent that this testimony may be thought to controvert my finding in the accompanying text , I do not credit it based on Fuller's statement to the contrary in a July 21 affidavit, her later testimony that she was unsure whether Gibson received a warning on April 12 or 14, and my observation of her demeanor while she testified. 10 Given the accusatory tone adopted by Claysmith, I reject Fuller's characterization of the meeting as investigatory in nature 11 Fuller testified that she handled the matter because McClintock had not been performing his job effectively and was about to be terminated McClintock was, however, required to be present and to sign Gibson's subsequent reprimand, and Gibson's discipline was completed before McClintock's termination Claysmith's participation was never cogently explained, and there is no evidence that Respondent 's associate adminis- trator was ever involved in a comparable disciplinary matter Given the discussion of Fuller's credibility in the preceding notes, her often incon- sistent and sometimes evasive testimony, and my observation of her de- meanor, I am dubious of this explanation 12 Respondent ..ppears to contend on brief that the "letter" was solicit- ed because of Respondent's concern over the union organizing campaign However, when Respondent discharged Linda Cole (the only other em- ployee dismissed during the organizing campaign), it did not solicit a statement at or prior to the time it discharged her I infer from these facts that Gibson and the union organizing campaign were closely linked in the minds of Claysmith and Fuller 13 Gibson so testified Fuller's testimony that Musgrove arrived with Gibson on April 14, not April 13, was directly contradicted by Fuller's July 21 affidavit Gibson's version is supported by Charlotte Greenlee, as- sistant manager of the patient accounts department, who testified that she accompanied Gibson to Claysmith's office on April 14 and Musgrove was not with them For the foregoing reasons, I do not credit Fuller I therefore conclude that Gibson's reference in the April 14 "Employee Counseling Report" to being denied a witness refers to the meeting on April 13 11 Claysmith displayed the statement solicited from Little- page and informed Gibson that, although that "letter" was sufficent grounds to discharge her, Respondent was going to give her another chance. Claysmith then handed Gibson a reprimand on an "Employee Counsel- ing Report" form. Gibson protested the allegation on the form that she had been talked with "on previous occa- sions regarding her handling of patients." Although the allegation was not deleted, the phrase "having counseled her on one previous occasion regarding a similar specific complaint" was added.14 Gibson added her comments to the form but refused to sign the reprimand on the grounds that it misrepresented her employment record as well as the Littlepage incident. A copy of the reprimand was given to Gibson, and a copy was placed in her per- sonnel file. Also on April 13, Claysmith called employee Lori Young Gamblin into his office and asked her to sign a complaint against Gibson. At approximately 5 p.m. on April 12, Gamblin observed Gibson making an obscene gesture in the direction of the Clinic administrator's office and swearing in a conversational tone. No one else was present in the area, and Gibson did not see Gamb- lin.15 Gamblin, who was "nosey" about what might have provoked Gibson's behavior, related the incident to her supervisor, Jeanne Henshaw, and asked her what had happened to upset Gibson. Apparently as a result of talk- ing with Henshaw, Claysmith asked Gamblin to sign the complaint. When Gamblin refused to do so, a statement concerning the incident was signed by Henshaw and placed in Gibson's personnel file. That file contains an additional memorandum dated April 13 concerning an- other instance of Gibson's alleged misconduct, which was signed by employee Anne Cunningham. The prove- nance of this memorandum is not apparent from the record, and no investigation of its accuracy was made before it was placed in Gibson's file."s Gibson was not informed of the two memoranda until immediately prior to her discharge. Because McClintock was absent on the morning of April 14, Claysmith called Greenlee and asked her to bring Gibson to his office. Shortly after 8 a.m., Gibson met with Claysmith, Fuller, and Greenlee. Claysmith handed Gibson an "Employee Counseling Report" dated April 14, which he had signed. The only new informa- tion contained in that document was (1) a statement that both it and the Littlepage "letter" would be placed in Gibson's personnel file, and (2) a warning that "any fur- ther misconduct on her part and she would be summarily discharged," which appeared in the "corrective action" 14 Gibson's account of this interchange is corroborated by the fact that the phrase in question is typed at a different angle from the rest of the text 15 Based on my observation of the demeanor of both witnesses, I credit Gambhn's testimony to this effect over Gibson's denial Taking into account the relatively trivial nature of the incident and the fact that Gibson believed she was alone, I believe it unlikely that she would recall the situation In any event, I find Gibson to be a generally credible wit- ness, and it is neither improper nor uncommon for the trier of fact to believe some, but not all, of a witness' testimony See NLRB v Universal Camera Corp, 179 F 2d 749, 754 (2d Cir 1950) 16 The only evidence on this subject, other than the memorandum itself, was Gibson's testimony which was both credible and exculpatory 12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD section of the form. 17 Gibson was given an opportunity to add her comments to the document, which she ac- cepted. Inasmuch as this "Employee Counseling Report" constituted Respondent's first notice to Gibson that she was to receive what amounted to a "final warning" be- cause of the Littlepage incident , I find that the April 14 meeting and document were disciplinary in nature. t s C. Alleged Threat by Troop McClintock was discharged as manager of the patient accounts department on April 15, and Jay Troop was ap- pointed interim manager on April 19. Troop had been employed by Respondent as an auditor for 2 months prior to his appointment. During his tenure as an hourly employee, Troop and Gibson were on friendly terms, and Troop was not opposed to the Union. Some 1 to 3 days after Troop was named interim manager, he and Gibson had a conversation in the reception area of the patient accounts department. Gibson stated that she had just run a personal errand on company time and, after Troop acquired a frustrated look, she explained that she was joking. Troop then asked whether Gibson ever thought "about keeping a low profile." Gibson respond- ed that anything to do with her union activities at the Clinic was her responsibility, and she was not going to do anything to jeopardize Troop's job. Troop responded that he was not worried about his job, but was thinking of hers. In response to Gibson's request for more infor- mation, Troop stated: Don't you think you should keep a low profile for a while just for your job security. Just lay low and stay right within the system. Be quiet with it. Gibson replied in the negative and explained the "system" was what had interested her in the Union in the first place. D. The April 23 Meeting On the morning of April 23, the clinic administrator, Daniel Dockrey, had a message delivered to Gibson to come to his office."" He did so because he had been in- 17 Fuller's attempt to characterize this form as "documentation of .. . the disciplinary action the day before" is significantly weakened by her subsequent inability to remember when Claysmith warned Gibson that further misconduct would result in summary dismissal . In addition, Fuller's testimony is directly controverted by Gibson's unrebutted ac- count of what did occur during the April 13 meeting . For these reasons, as well as those set forth previously , I credit Gibson over Fuller on this point. 18 Both Stevenson and Fuller conceded that it was impossible to tell from the face of an "Employee Counseling Report" whether it chron- icled discipline or nondisciplinary counseling . They testified that the em- ployee receiving the report would be told which circumstance applied. The idea of an employer of Respondent's sophistication going to the trouble of documenting a personnel action with a report which does not disclose what action was taken defies credulity To the extent that this testimony may be thought to support Respondent's position that no disci- plinary action took place on April 14, 1 reject it. 19 Dockrey and Stevenson placed this incident on April 23, while Gibson testified that it took place I week earlier , on April 16. I believe Dockrey and Stevenson to be correct. formed by an unidentifiable individual that Gibson had posted union paraphernalia in her work area.20 Prior to Gibson's arrival, Stevenson entered and stated that he believed Gibson had used a Clinic copying machine for the "reproduction of material disseminated by Union or- ganizers."21 Gibson arrived around 9:30 a.m. and met with Dock- rey and Stevenson. Dockrey instructed Gibson to remove two items from her work area: a bumper sticker stating "I'm Union and Proud of It"22 and an "organiza- tion chart." Stevenson testified that the latter item could "be interpreted as derogatory to Respondent."23 After the meeting, Gibson carried out Dockrey's instructions. At the hearing, Stevenson explained that Respondent had an "oral tradition" forbidding offensive or controversial office decor in patient service areas. He further explained that normally an employee's immediate supervisor would determine what constituted appropriate decor. Although Stevenson felt that Troop's inexperience would probably have caused him to refer the matter to his immediate su- perior, Fuller, there is no evidence that Troop actually did so. Nor is there any evidence on the question of why the matter was not handled by Fuller. Dockrey also informed Gibson of Respondent's rule forbidding the use of Clinic copiers for nonbusiness pur- poses,24 "as well as the particular inappropriateness of reproducing union-distributed material." The material Gibson had copied was a cartoon showing a nervous looking character, which bore the caption: "I've been beaten, kicked, lied to, cussed at, swindled, taken advan- tage of and laughed at, but the only reason I hang around this place is to see what happens next!" Dockrey indicated that the cartoon, which he described as "bla- tantly defamatory," would not be posted on Respond- ent's bulletin board and asked Gibson if she had distrib- uted it. Gibson replied in the negative. Dockrey told Gibson that the distribution of materials, such as the car- toon, "is not protected activity by the NLRB or anyone else, and can be regarded as grounds for dismissal."25 20 Dockrey also testified of his "understanding," presumably obtained from the same unidentifiable individual, that Gibson had refused to remove the paraphernalia when asked Because the record shows that Gibson consistently complied with every management request concerning her union activities, I reject Dockrey's hearsay testimony. Y1 Gibson testified that she made a single copy to submit to Stevenson for bulletin board approval. Although Stevenson did not observe Gibson making multiple copies, he assumed that she did so because of the number setting he later observed on the copying machine. 84 It is unclear whether Dockrey believed this item to be inappropriate because it was a bumper sticker or because it was so "controversial" that it would upset patients 28 Stevenson so testified on two occasions , and Dockrey did not men. tion the chart at all during his testimony It is difficult to imagine a situa- tion where union campaign material could not be "interpreted as deroga- tory" by the company being organized. Accordingly, I find that Re- spondent's assertion on brief that the chart was shown by unrebutted tes- timony to be "derogatory and disparaging to Clinic" lacks record sup- port. 24 Stevenson conceded that "there may be occasions where a one sheet item might be allowed to be copied." 88 Dockrey's quoted language in the above findings was drawn direct- ly from Stevenson's April 26 memorandum, which Stevenson testified was prepared to provide a record of what occurred in view of the "ten- sions" generated by the union organizing campaign . Dockrey's statement Continued TROVER CLINIC Dockrey told Gibson that if she had questions regarding specific material, she should consult the Union's attorney "for your own safety." Finally, pursuant to a general discussion of what Gibson hoped to accomplish through the Union, she made reference to the wage freeze which Respondent had instituted due to cash flow problems prior to the commencement of the organizing campaign . Gibson indi- cated that Respondent's employees would like to see wages unfrozen. Dockrey responded that the freeze would not be lifted until the union question was re- solved.28 On April 26, Stevenson prepared a memorandum of the meeting, which was addressed to Fuller and cap- tioned "Corrective Contact with Donna Gibson, Patient Accounts Clerk." Stevenson admitted that he felt a need for a formal statement of what had occurred on April 23 because of the organizing campaign . A copy of the memorandum was placed in Gibson's personnel file. E. Alleged Interrogation by Troop Employee Schyrel Osborn began working for Re- spondent on January 11. Approximately 1 week after Osborn completed her 90-day probationary period, she was given a union button by Gibson. As Osborn was walking to the patient accounts department between 4:30 and 4:45 p.m. that day, she heard Fuller comment to Troop: "Jay, you've lost another one." Troop later en- tered Osborn's office, where Osborn, Greenlee, and an- other employee were putting on their coats, and said, "Girls, turn around." In response to a chorus of "whys," Troop said: "Fayrene just came down and told me that I had another one in this department wearing buttons. Now, Schyrel, why?" Osborn replied, "For job securi- ty."27 After the employees had directed some bantering comments at Troop, everyone departed. The entire inter- change took place without any evidence of hostility, and Osborn continued to wear her union button until Gibson was discharged. F. Gibson's Discharge Throughout May until her discharge, Gibson contin- ued her highly visible support of the Union and her highly vocal espousal of employee rights in front of Re- spondent's management. On May 3, Fuller instructed Gibson to remove a union button, which bore the legend in accompanying text not only appears in the memorandum, but was twice testified to by Stevenson on the stand Dockrey denied making this statement, but his recall of what transpired on April 23 was demonstrably weak. For example, Dockrey did not recall who had informed him that union paraphernalia was displayed in Gibson 's work area and his version of the meeting totally omitted reference to the "organization chart " For the foregoing reasons and based on my observation of their respective de- meanor while testifying, I credit Stevenson over Dockrey 26 Gibson's testimony to this effect on both direct and cross-examina- tion was consistent, straightforward, and cogent. Dockrey denied having made the comment Significantly, Respondent's questioning of Stevenson concerning the April 23 meeting never touched on this subject . For the foregoing reasons and based on my observation of Gibson and Dockrey while they were on the stand , I credit Gibson over Dockrey. 27 Greenlee and Gibson , who demonstrated a detailed recollection of what occurred, so testified Osborn, whose recall of the incident was sketchy, believed she had said, "Because I wanted to " I credit Gibson and Greenlee over Osborn 13 "The Snake Pit Supports the CWA," to avoid offending patients.28 Gibson did so, and Fuller wrote a memoran- dum concerning the incident for Gibson's personnel file. On May 10, Robert Guy was hired as the new manager of the patient accounts department, and Troop became the assistant manager. When Respondent distributed a new employee handbook around May 19, Gibson at- tempted to invoke the handbook's grievance procedure over her April discipline. Thereafter, Gibson spoke suc- cessively with Troop, Guy, and Stevenson about the matter and caused Troop to write a memorandum to Guy and Guy, a memorandum to Claysmith. On May 25, she alerted Troop to the fact that antiunion campaigners were encroaching on worktime, and she carried her co- workers' complaint concerning a change in lunch and break schedules to Troop on the morning of May 26. One of Gibson's duties at the time of her discharge was to supply itemized statements to patients on request. In order to generate an itemized statement, a request form was filled in by the patient accounts department and submitted to the data processing department, where the information on the form was keypunched by one of four keypunched operators.29 If the necessary informa- tion was correctly entered on the request form and cor- rectly keypunched, an itemized statement would be gen- erated and returned to the patient accounts department within a week to 10 days. Because the employees in the patient accounts depart- ment who prepared the request forms in 1981 had "not been getting a lot of the statements" they had requested, the requesting function was consolidated in a single indi- vidual, Kelly Menser, sometime between July and Octo- ber 1981.30 Menser, who was in charge of requesting itemized statements until mid-December 1981, had been required to submit second and third requests for some statements before she received them.91 At the very end of December or the beginning of January, Gibson was assigned the duty of requesting itemized statements. Nei- ther Gibson nor any other employee in the patient ac- counts department was ever given training in how to fill out the request forms. McClintock explained to Gibson that he did not know how to fill out the forms and in- structed her to secure her predecessor's old requests and adopt Menser's methodology. Gibson initially experienced some difficulty in getting itemized statements in response to the forms previously submitted by Menser, 3 2 and this difficulty continued 28 Gibson testified without contradiction that "the snake pit" was a term used by Fuller to refer to the patient accounts department 29 Although there were nine such operators, Data Processing Supervi- sor Henshaw testified that only four handled requests for itemized state- ments 30 Greenlee, the assistant manager of the patient accounts department, credibly so testified. 31 Greenlee, whose position would cause her to be aware of this situa- tion, credibly so testified. To the extent that Henshaw's testimony that she was unaware Menser had problems requesting statements may be thought to be inconsistent with Greenlee's, I do not credit Henshaw based on my observation of her demeanor while on the stand. In addi- tion, there is no evidence that Henshaw would have had reason to know of Menser's problems. Indeed, there is no reason to believe that Henshaw became aware that Gibson was having similar problems until Gibson brought the matter to Henshaw's attention 32 Gibson and Greenlee so testified 14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD when Gibson began submitting her own requests. Be- tween January and the time of her discharge, Gibson re- ceived some of the itemized statements she requested, but did not receive others. The record reveals several factors which explain Gibson's failure. First, the form itself is confusing. Although it is used by both the insurance department and the patient ac- counts department to request statements , the instructions and format of the form concerning the time period for which a statement is being requested related solely to the insurance function. Thus, the "from date" and "to date" sections of the form contain two boxes in which the month is to be entered, two boxes for the day of the month and a fifth box designated "YR." If one follows the form's instuctions concerning the entry of dates in these boxes, an itemized statement cannot be generated. The correct procedure to request an itemized statement requires one to enter two digits for the month in the first two boxes, to enter the last two digits of the year in the next two boxes, and to ignore the "YR" box. Second, it was shown that during the period Gibson requested itemized statements, three of the four operators who keypunched the requests for these statements did not know the correct procedure for doing so and at least two of them incorrectly keypunched requests by adding the day of the month, even when that information did not appear on the request form.33 In contrast, the re- maining operator occasionally corrected erroneously filled out requests when she keypunched them.34 Gibson was unaware of either of the modifications which were being made in the data processing department. Thus, the fact that Gibson did or did not receive a particular item- ized statement would not allow her to determine wheth- er she had properly prepared the corresponding request form.35 It is uncontested that Gibson's confusion why she was not receiving some of the statements she had requested caused her to approach Data Processing Supervisor Ren- shaw on two or three occasions and McClintock on sev- eral additional occasions to ascertain whether she was making any errors in preparing the forms .36 In response as Keypunch operator Deborah Johnson testified that when Henshaw asked the operators in May whether they knew how to keypunch an itemized statement request, Sherry Tomblmgson (nee Kirkwood) and Lori Young Gamblin answered that they did not. Tomblingson testified that she had incorrectly added the day of the month when keypunch re- quests for itemized statements for almost a year. Johnson further testified that she had to tell operator Faye Green not to add the day of the month when keypunching a request for an itemized statement shortly after Gibson was discharged. 84 Johnson so testified. as In this context, Henshaw's instruction to consult the "Insurance Report Register" to determine whether a mistake had been made in pre- paring a request form is somewhat iromc Gibson knew that mistakes were being made What she needed to know , that is, how to correct those mistakes, could not be learned from the register ss The content of Gibson's conversations with Henshaw is disputed Henshaw testified that she pointed out Gibson's obvious errors on each occasion, and that Gibson corrected them and subsequently received all the itemized statements requested. This testimony is suspect for a number of reasons. First, it is highly unlikely that Gibson would have repeatedly received all the requested statements given the confusion over keypunch- mg requests that existed among the employees under Henshaw's supervi- sion Second , it was clearly not in Henshaw 's interest to admit that one of the problems in generating itemized statements was attributable to her im- properly trained employees , rather than to Gibson . Third, Henshaw testi- to feedback from several sources , some of which was shown to be erroneous, Gibson changed her method of inserting date information on the request forms on at least two occasions . It is undisputed that between Janu- ary and the date of her discharge, Gibson made two types of errors in preparing the forms. First, she entered the wrong insurance company number until she was in- formed of the error.37 Second, she incorrectly entered date information on the request forms. Gibson's succes- sor in requesting itemized statements, Gloria Parker, Also prepared the forms incorrectly.SB In response to patient complaints concerning the non- receipt of itemized statements ,39 Guy prepared a memo- randum on May 24 telling the patient accounts depart- ment that itemized statements should be provided as quickly as possible. The following day, Gibson and Troop came to Guy's office. Gibson explained that she had primary responsibility for requesting itemized state- ments, showed Guy 35 request forms (some of which had been submitted to the data processing department as many as four times) and told him that she had not been able to help the delay. Guy took the request forms to Henshaw, who informed him that Gibson had incorrect- ly entered the date information and that this was a recur- ring mistake.40 Guy returned and gave the forms to feed about a purported conversation in late January when she allegedly corrected Gibson's incorrect date information , but she completely omit- ted mention of the occasion in early February, testified to by Gibson and Johnson, when neither Henshaw nor Johnson were able to find any errors in Gibson's request forms. The timeframe is such that it appears probable that all three witnesses are describing the same conversation. Fi- nally, Henshaw's testimony is rendered suspect by the alacrity with which she apparently reported the relatively trivial incident involving Gibson and Gamblm to Respondent's top management . For the foregoing reasons and based on my observation of her demeanor while on the stand, I do not credit Henshaw's testimony concerning Gibson 's perform- ance. ar When Gibson was informed of this error and by whom are disputed but immaterial . There is no evidence that Gibson had to be informed more than once, and Guy's testimony (concerning his reference to the "Insurance Report Register") establishes that Gibson was not making this en or at the time of her discharge as Johnson credibly so testified. 89 Guy, Dockrey, and Fuller testified to the effect that such com- plaints began at the time Gibson began requesting itemized statements, grew to astounding proportions in April and May, and ceased on Gib- son's discharge. As noted above, Fuller's testimony on this subject was internally inconsistent In addition , Fuller's testimony that she referred 15 complaints to the patient accounts department over the months of April and May is controverted by the facts that she referred no complaints to Troop and Guy received no referrals Thus, no complaints could have been referred after April 15 Dockrey, who had difficulty on direct exam- mation remembering the number of complaints he received , admitted on cross-examination that he was not sure how many related to itemized statements. There are also inconsistencies between Dockrey 's testimony and that of Fuller. With the exception of three telephone complaints re- ceived by Guy on May 24, the purported complaints are without docu- mentations, notwithstanding Dockrey's testimony that a number were embodied in letters. For the foregoing reasons and based on my observa- tion of their demeanor as they testified , I do not credit the testimony of these witnesses on the timing and extent of patient complaints concerning itemized statements. 40 Guy did not understand the mechanics of requesting itemized state- ments and testified on two occasions that request forms which contained errors were returned by the data processing department to Gibson to be corrected. TROVER CLINIC Troop. Troop, in turn, gave them to Gibson, who cor- rected them in accordance with Troop's instructions and resubmitted them to the data processing department. On May 25, Guy prepared a memorandum to Clays- mith recommending Gibson's termination.41 The memo- randum discussed Gibson's problems with itemized state- ments and erroneously stated that she had given Guy "approximately 50" request forms and that incorrectly prepared forms had been returned to her since January with the errors indicated. The memorandum concluded: "This, in conjunction with violations and occurrences of the past, should compel us to promptly terminate Gibson, and I recommend we do so at once." The following day Guy discussed the memorandum with Claysmith, and Claysmith noted on the memoran- dum: "After review of Donna Gibson's total employment record I concur with Bob Guy's recommendation." Guy informed Stevenson of the matter and, thereafter, Guy and Claysmith discussed the recommendation with Dockrey, who was "reviewing terminations because of Union activities." Dockrey concurred in Guy's recom- mendation. Guy then called Gibson into his office and informed her that she was being discharged because of patient complaints concerning itemized statements. The "Department Termination of Employment Report" filled out by Guy at that time listed the cause of discharge as "patient complaints and sub-standard job performance." Guy, Fuller, and Stevenson all testified that Gibson's dis- missal was based in part on the Littlepage incident. In a May 31 letter to the Kentucky Division of Unem- ployment, Stevenson argued that Gibson was discharged for cause, citing the problem with itemized statements, the Littlepage incident, the Cunningham memorandum, other unspecified complaints about patient treatment, and "other instances of misconduct." Respondent's records demonstrate that its clerical em- ployees are normally counseled and, absent improve- ment, then reprimanded for unsatisfactory work perform- ance comparable to Gibson's. Thus, the personnel records of employees Peggy Carter, Betty Merrell, and Irene Worrell show that they were counseled or given verbal warnings for unsatisfactory work performance which consisted of excessive errors or untimely work completion. Guy determined the degree of discipline given the latter two employees. Employee Beth Mus- grove was given a written reprimand without prior counseling when her clerical work was "allowed to back up as far as 3 months." Respondent normally discharged clerical employees only after they have been warned that their job performance is unsatisfactory and they have 41 Guy's testimony that his unfamiliarity with Gibson's work record caused hun to review her personnel file on May 25 is directly contradict- ed by his admitted review of that file on May 20 in connection with Gib- son's contemplated grievance over her April discipline. Guy's attempt to equate the "negative patient relations impact " of incorrectly processing request forms with the abuse and rudeness alleged to have occurred in the Littlepage incident is disingenuous at best Indeed , Guy was defensive and appeared embarrassed when he testified to this effect. However strin- gent Respondent's policy on patient treatment, erroneous work perform- ance does not constitute the type of "misconduct" which was the subject of Gibson's "final warning " For these reasons and based on my observa- tion of Guy's overall demeanor while on the stand, I do not credit his explanation of why he recommended Gibson's termination 15 been given one or more chances to improve .42 Michelle Cavins and Paulette Laffoon were ultimately discharged for unsatisfactory work performance at the end of ex- tended probationary periods as clerical employees, but only after they had been advised of their failings by Re- spondent's management. Lisa Curneal was the only cleri- cal employee who was discharged by Respondent with- out first receiving a warning concerning her perform- ance.43 Her personnel file indicates that she had not an- swered requests for information for 6 months to a year and that she had not cashed or credited checks for as long as 7 months. Her discharge stated that the "mail un- answered was a serious infraction but the checks not handled properly was inexcusable." III. DISCUSSION A. Alleged Threats and Interrogation The General Counsel contends that Troop's remarks to Gibson about April 20 constitute a threat of unspeci- fied reprisals as a result of Gibson 's union activities. Re- spondent notes that Troop's comments must be viewed in the context and circumstances in which they arose and contends that no violation occurred because the incident was an isolated one involving a low-level, newly pro- moted supervisor who was on good terms with Gibson. I cannot accept this rationale . Troop delivered what Gibson understood to be a warning from her immediate supervisor concerning her union activities . This occurred at Respondent's facility during working hours and within a week of Gibson's repeated discipline over the Little- page incident. The fact that Troop and Gibson were friendly (and his warning was well-intentioned) does not prevent my fording that his comment would reasonably tend to interfere with Gibson's free exercise of her em- ployee rights. See Jax Mold & Machine, 255 NLRB 942, 945-946 (1981); Hanes Hosiery, Inc., 219 NLRB 338 (1975). Accordingly, I ford that Troop's threat was an unfair labor practice in violation of Section 8(a)(1) of the Act. The General Counsel next contends that the meeting between Gibson, Stevenson, and Dockrey in the latter's office on April 23 gave rise to two violations of the Act. With respect to the first, the question of whether Dock- rey implicitly conditioned lifting a wage freeze on the termination of union activities turns primarly on credibil- ity determinations. Having accepted Gibson's version of the conversation, I ford that Dockrey's statement unlaw- fully interfered with the rights of Respondent 's employ- ees and constitutes an unfair labor practice in violation of Section 8(a)(1) of the Act. See Jax Mold & Machine, 255 NLRB at 947; World Wide Press, 242 NLRB 346, 360 (1979). The second violation of the Act, which the General Counsel contends took place at the meeting, is based on Dockrey's statement that the distribution of certain union 48 The fact that this is Respondent's policy as well as its practice is established by the section of its employee handbook entitled "Discipli- nary Procedures " 43 The record is silent whether Curneal was counseled prior to her dis- charge 16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD materials was grounds for dismissal .44 Respondent argues that a threat to discharge employees who distrib- ute unprotected materials is not unlawful and urges that the cartoon, which Dockrey stated was an example of the kind of union literature which could not be distribut- ed, was unprotected due to its "scurrilous and defamato- ry" nature. The burden is on Respondent to show the ex- istence of "special circumstances" which justify prohibit- ing the distribution of union materials, and the content of the cartoon in question does not meet this burden. See Midstate Telephone Corp., 262 NLRB 1291 (1982); Bor- man's, Inc., 254 NLRB 1023, 1024-1025 (1981), enf. denied 676 F.2d 1138 (6th Cir. 1982). Moreover, Dock- rey's statement was not confined to the cartoon and was made immediately after he stated that other union para- phernalia could not be displayed in the Clinic. Accord- ingly, I find that Dockrey's threat was an unfair labor practice violative of the Act. Finally, the General Counsel contends that the ques- tion directed to Osborn by Troop at the end of April constitutes coercive interrogation violative of the Act. I disagree. Troop's question was clearly rhetorical in nature, rather than one intended to elicit information. In addition, the question was posed in Osborn's office amidst employee banter, and it elicited an honest re- sponse. Not surprisingly, there is no indication that the incident had a coercive impact on Osborn or anyone else. For the foregoing reasons, I find that Troop's ques- tion was not unlawful. see M. A. Harrison Mfg. Co., 256 NLRB 427, 430 (1981); Lyman Steel Co., 249 NLRB 296, 302 (1980); Fairbanks Medical Clinic, 213 NLRB 741 (1974). Accordingly, I shall dismiss the relevant allega- tion of the complaint. B. Gibson's Discipline The General Counsel contends that Gibson's discipline over the Littlepage incident" and her discharge were motivated by her union involvement. Respondent argues that both discipline and discharge were for cause. Thus, Respondent's motivation is the crucial determinant in re- solving this issue. There can be no question that Gibson was a highly visible, extremely vocal union adherent and advocate of employee rights. Nor is there any doubt that Respondent was fully aware of Gibson's protected concerted activi- ties. One of her activities on behalf of the Union in- volved her repeated, direct contact with Respondent's management, and her other union activities resulted in additional interactions with Respondent's top managers, which they inevitably documented for her personnel file.46 The circumstances surrounding the Littlepage incident gainsay any possibility that it was an even-handed, dis- passionate administration of discipline and convince me 44 Dockrey's instuchon that Gibson remove union paraphernalia from her work area was not alleged to be a violation of the Act 45 Respondent argues that the complaint does not allege that Gibson's discipline over the incident was discriminatory, but only that Respondent discriminated against Gibson by disciplining her for it on three separate occasions. My reading of the complaint differs from Respondent's 46 On brief, Respondent describes Dockrey , Claysmith, and Fuller as "the Clinic's three top management officials " that Respondent's true motivation was Gibson's union in- volvement. An inference that Respondent's motive was unlawful is compelled by the timing of Gibson's disci- pline. Gibson figured prominently in the Union's presen- tation of its recognition letter to Claysmith only 3 days before the Littlepage incident, and Gibson sought Re- spondent's approval of an apparently troublesome hand- bill on the morning of the incident. Similarly, the stated bases for Gibson's discipline cast doubt on Respondent's purported motivation. According to the reprimand given Gibson, her discipline was due to Littlepage' s complaint of not having "received a satisfactory explanantion" and having been "treated in an abusive manner." The former ground can hardly be thought significant since Gibson suggested an audit, the same remedy later offered by Fuller. Notwithstanding the fact that the complaint con- cerning Gibson's abusive behavior is totally devoid of ex- planatory or substantiating detail, Claysmith rejected any attempt by Gibson to explain, instead of attempting to secure her version of the confrontation as was Respond- ent's demonstrated practice. Equally troubling is the fact that Gibson's discipline was handled not by her immedi- ate supervisor or even by that supervisor's immediate su- perior, but by the second-ranking member of Respond- ent's management. Also significant is the body of evidence that Respond- ent was laying a foundation for future disciplinary action against Gibson at the time of the Littlepage incident. Thus, the April 13 reprimand was written, as correctly contended by the General Counsel, "to make it appear that Gibson was a chronic disciplinary problem." The only apparent purpose for disciplining Gibson again on April 14 was to add a "final warning" which would also facilitate future discipline. In the course of attempting to justify Gibson's discipline, Respondent's top managers went to the apparently unprecedented length of prepar- ing a complaint "letter" and securing signatures for it. Respondent's top management also went to some trouble in Claysmith's April 13 attempt to solicit a complaint about Gibson from Gamblin, and the desire to document any adverse circumstances is demonstrated by the inclu- sion of Henshaw's hearsay account in Gibson's personnel file. The final piece of evidence which indicates that Re- spondent was not looking solely at the Littlepage inci- dent when it disciplined Gibson was its insertion of the April 13 Cunningham memorandum in Gibson's person- nel file without asking her about the incident or notify- ing her of their action. 47 In sum, I am forced to con- clude that Respondent's discipline of Gibson over the Littlepage incident was merely the initial step in making an "object lesson" out of the union supporter most visi- ble to Respondent's top management. I therefore find that Gibson's discipline on April 13 and 14 was violative of Section 8(a)(1) and (3) of the Act. Gibson's discharge is also alleged by the General Counsel to have been a violation of the Act. Again, Re- spondent argues that the dismissal was for cause. Resolu- tion of this issue is complicated by the fact that the pur- 47 Parenthetically, I find their failure to do so significant in view of the reliance placed on that memorandum to explain Gibson' s discipline and discharge in Steveson's May 31 letter and in Respondent's brief. TROVER CLINIC 17 ported bases for Respondent's action are not easily ascer- tainable from the record. Gibson was told, and her termi- nation report reflected, that she was discharged because of her unsatisfactory performance in filling out request forms for itemized statements, but Dockrey, Fuller, and Guy all concede that the Littlepage discipline was a sig- nificant factor in her dismissal. From still another per- spective, Guy's written recommendation, Claysmith's no- tation thereon, and Stevenson's May 31 letter indicate that every matter documented in Gibson's personnel file was considered in reaching the decision to terminate her. One thing which is clear is that Respondent's reliance on the discriminatory discipline of April 13 and 14 as a basis for Gibson's discharge fatally tainted its motivation for that discharge. Even if this were not the case, the conclusion that Respondent's motivation was unlawful would be compelled by the animus which may be in- ferred from the violations of Section 8(a)(1) found herein and from the disparate nature of the discipline visited on Gibson on May 26. Except for a single egregious case, it was shown to be Respondent's stated policy and practice to warn clerical employees that their work was unsatis- factory and give them an opportunity to improve before discharging them. As Respondent noted on brief, it dis- charged Gibson "as soon as it became aware that Gibson was responsible for the itemized statement problem." As- suming, arguendo, that Gibson had simply ignored the itemized statement problem for April and May as con- tended by Respondent, her infraction corresponds most nearly with that of the employee who was merely repri- manded for being 3 months behind in her work. The only clerical employee discharged by Respondent for un- satisfactory work performance (without a prior warning concerning that performance) had failed to answer re- quests for information for as long as a year. I do not find persuasive Respondent's attempt to analogize that situa- tion with the one which resulted in Gibson's dismissal. The above findings require a further finding that Gib- son's termination violated Section 8(a)(1) and (3) of the Act. CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By conditioning its lifting of a wage freeze on the termination of union activities, Respondent committed an unfair labor practice within the meaning of Section 8(a)(1) of the Act. 4. By threatening its employees with discharge and other unspecified reprisals because of their participation in union and other protected concerted activities, Re- spondent committed unfair labor practices within the meaning of Section 8(a)(1). 5. By warning, reprimanding, and discharging Donna Gibson for her participation in union and other protected concerted activities, Respondent committed unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. 6. The aforesaid unfair labor practices affect commerce with the meaning of Section 2(6) and (7) of the Act. 7. A preponderance of the credible evidence does not establish that Respondent has otherwise violated the Act. REMEDY Because Respondent engaged in unfair labor practices, it shall be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the purpose of the Act. Such affirmative action shall include an offer to Gibson of immediate and full reinstatement to her former job, discharging any replacement if necessary or, if that job no longer exists, to a substantially equiva- lent job, without prejudice to her seniority or other rights and privileges previously enjoyed. Gibson shall be made whole for any loss that she may have suffered as a result of Respondent's discrimination against her. Back- pay will be calculated in accordance with the formula set forth in F. W. Woolworth Co., 90 NLRB 289 (1950), to which interest shall be added in the manner provided in Florida Steel Corp., 231 NLRB 651 (1977).48 Finally, be- cause the record contains substantial reason to believe that a number of documents in Gibson's personnel file detail what Respondent referred to as "other instances of misconduct" which underlay the decision to discharge her, Respondent shall remove those documents from its records. See Sterling Sugars, 261 NLRB 472 (1982). On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed49 ORDER The Respondent, Trover Clinic, Madisonville, Ken- tucky, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Conditioning the lifting of a wage freeze on the ter- mination of union activities. (b) Threatening its employees with discharge or other unspecified reprisals because they engage in union or other protected concerted activities. (c) Discharging, reprimanding, warning, or otherwise discriminating against its employees because they engage in union or other protected concerted activities. (d) 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 policies of the Act. (a) Offer Donna Gibson immediate and full reinstate- ment to her former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to her seniority or any other rights or privileges previously enjoyed, and make her whole for any loss of earnings and other benefits suffered as a result of the discrimina- 48 See generally Isis Plumbing Co., 138 NLRB 716 (1962) 49 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. 18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion against her, in the manner set forth in the remedy section of the decision. (b) Remove from its files the memoranda authored by Henshaw and Cunningham on April 13, 1982, by Steven- son on April 26, 1982, by Fuller on May 3, 1982, by Troop on May 19, 1982, and by Guy on May 20, 1982, as well as any other reference to the unlawful discipline of Donna Gibson on April 13 and 14, 1982, and her un- lawful discharge on May 26, 1982; and notify Donna Gibson in writing that this has been done and that evi- dence of her unlawful discharge and discipline will not be used as a basis for future personnel action concerning her. (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 Madisonville, Kentucky facility, copies of the attached notice marked "Appendix."50 Copies of the notice, on forms provided by the Regional Director for Region 9, after being signed by the Respondent's au- thorized representative, shall be posted by the Respond- ent immediately upon receipt and maintained for 60 con- secutive days in conspicuous places including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent 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 the allegations of the complaint not specifically found herein be dismissed. 60 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." 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 or- dered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protec- tion To choose not to engage in any of these protect- ed concerted activities. WE WILL NOT condition the lifting of a wage freeze on the termination of union activities. WE WILL NOT threaten you with discharge or other unspecified reprisals because you engage in union or other protected concerted activities. WE WILL NOT discharge, reprimand, warn, or other- wise discriminate against you because you engage in union or other concerted protected activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL offer Donna Gibson immediate and full rein- statement to her former job or, if that job no longer exists, to a substantially equivalent position, without prej- udice to her seniority or any other rights or privileges previously enjoyed and WE WILL make her whole for any loss of earnings and other benefits resulting from her discharge, less any net interim earnings, plus interest. WE WILL remove from our files any reference to the unlawful discharge of Donna Gibson on May 26, 1982, and to her unlawful discipline on April 13 and 14, 1982, and WE WILL notify her that this has been done and that evidence of this unlawful conduct will not be used as a basis for future personnel action concerning her. TROVER CLINIC