Pontiac Osteopathic Hospital

442 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Pontiac Osteopathic Hospital and Bonnie Beltramo, Evelyn Bach, and Sharon McKay. Cases 7-CA- 23035, 7-CA-23162, 7-CA-23475 23 June 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND STEPHENS On 27 June 1986 Administrative Law Judge Wil- liam A. Pope II 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, fmdings, and conclusions only to the extent consistent with this Decision and Order, to modify the remedy,' and to adopt the recommended Order as modified. The judge found that the Respondent violated Section 8(aX1) of the Act by discharging employee Bonnie Beltramo on 6 January 1984, 2 and again on 7 February, and by demoting Supervisor Evelyn Bach on 9 February, and then discharging her on 23 February, and again on 22 March. The Re- spondent excepts to these findings. 3 While we fmd that, for the reasons stated by the judge, the Re- spondent violated Section 8(a)(1) of the Act by dis- charging Bonnie Beltramo, 4 we fmd merit in the Respondent's exceptions to the judge's fmding that the discharge of Evelyn Bach violated the Act. For the reasons set forth below, we reverse the judge and fmd that the Respondent did not violate the Act by demoting and discharging Evelyn Bach. As found by the judge, on 6 January employee Bonnie Beltramo was discharged for writing a "fake newsletter" commenting on, among other things, the Respondent's relationship with its em- ployees. At the time that the Respondent's director of nursing, Rita Mahon, was considering discipline In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), Interest will be computed at the "short-term Fed- eral rate" for the underpayment of taxes as set out in the 1986 amend- ment to 26 U.S.C. § 6621. I All dates refer to 1984 unless otherwise indicated. 6 The Respondent additionally excepts to the Judge's failure to defer to the findings of the appeals board established by the Respondent and its employees. We find no merit in this exception. The Respondent fails to show that its appeals board proceedings meet the standards for deferral to iirbitration as set forth in United Technologies Corp., 268 NLRB 557 (1984), and Olin Corp., 268 NLRB 573 (1984). 4 In affirming the judge's findings that the Respondent's discharges of Beltramo violated the Act, with regard to the second discharge we rely only on the judge's finding that the Respondent's reasons for discharging Beltramo were pretextual. In so doing we in no way pass on the judge's findings concerning Beltramo's rights with regard to contacting advisory board members. 284 NLRB No. 51 to be meted out to Beltramo, Beltramo's supervi- sor, Evelyn Bach, told Mahon that she did not sup- port Mahon's decision to discharge Beltramo. Fur- thermore, Bach told Mahon that she thought it was wrong to discharge someone for expressing her feelings about management. At no time, however, did Mahon ask Bach to carry out the discharge or in any way participate in the discipline. Beltramo appealed her discharge to the Respond- ent's appeals board, which reduced the discharge to a 30-day suspension and a 90-day probationary period upon her return to work. 5 On 7 February, shortly after her return to work, Beltramo was dis- charged for a second time. Two days later, Bach was demoted from her position of clinical nurse co- ordinator to that of a staff nurse. According to Bach, she was told by Mahon that she was being demoted because she had not supported Mahon in the Beltramo matter. On 23 February Bach was discharged for unsatisfactory performance of her clinical nurse coordinator duties. The judge, while acknowledging that supervisors are generally excluded from the Act's coverage, reasoned that under our decision in Parker-Robb Chevrolet, 262 NLRB 402 (1982), the circumstances in this case warranted extending protection to Su- pervisor Bach. We conclude that the judge read Parker-Robb too broadly in extending protection to Bach. It is clear that protection under the Act is afford- ed to employees, not supervisors. Consequently, the discharge of a supervisor violates the Act only where it interferes with the exercise of employees' Section 7 rights. Thus, we stated in Parker-Robb Chevrolet, supra, 262 NLRB at 402-403: [A]n employer may not discharge a supervisor for giving testimony adverse to an employer's interest either at an NLRB proceeding or during the processing of an employee's griev- ance under the collective-bargaining agree- ment. Similarly, an employer may not dis- charge a supervisor for refusing to commit unfair labor practices, or because the supervi- sor fails to prevent unionization. In all these situations, however, the protection afforded supervisors stems not from any statutory pro- tection inuring to them, but rather from the need to vindicate the employees' exercise of their Section 7 rights. [Citations omitted.] 5 Beltramo requested that Bach testify on her behalf at the appeals board proceeding, but she was informed by Robert Rood, the employee advocate for the proceeding, that Bach could not appear on her behalf. Consequently, Bach wrote a letter, which was offered mto evidence at Beltramo's appeals board proceeding, stting that she did not agree with Respondent's action of firing an employee for expressing her dissatisfac- tion with management. PONTIAC OSTEOPATHIC HOSPITAL 443 In Parker-Robb we overruled the "integral part" or "pattern of conduct" cases in which we had held that the discharge of a supervisor, as part of an overall plan to discourage employees from exer- cising their Section 7 rights, violated the Act. While recognizing that the discharge of a supervi- sor for engaging in union or concerted activity almost invariably has a secondary or incidental effect on employees, we reasoned that such con- duct is insufficient to warrant an exception to the general statutory provision excluding supervisors from the protection of the Act. We further rea- soned, however, that when a supervisor is dis- charged for testifying at a Board hearing or at a contractual grievance proceeding, or for refusing to commit unfair labor practices or failing to pre- vent unionization, "the impact of the discharge itself on employees' Section 7 rights, coupled with the need to ensure that even statutorily excluded individuals may not be coerced into violating the law or discouraged from participating in Board processes or grievance procedures, compels that they be protected despite the general statutory ex- clusion." Parker-Robb, 262 NLRB at 404. In the instant case, we are faced with the ques- tion of whether the discharge of a supervisor for failure to support management action amounting to an unfair labor practice constitutes a violation of the Act. The judge concluded that it did, reasoning that there was no difference between discharging a supervisor for refusing to commit an unfair labor practice and discharging a supervisor for failing to support management action amounting to an unfair labor practice. We disagree with the judge's con- clusion. When an employer asks a supervisor to commit an unfair labor practice, the supervisor is forced to choose between violating the law or dis- obeying the employer's request—a choice that could lead to discipline or discharge. Consequently, in such situations, an employer is able to pressure a supervisor into violating the law on its behalf. On the other hand, when a supervisor, acting on his or her own initiative, chooses to express disapproval of a management policy, the supervisor is not co- erced at all (i.e., he or she has not been forced to choose between violating the law or risking the consequences of the employer's wrath). Admitted- ly, the discharge in either situation may have a sec- ondary effect on the employees' exercise of their Section 7 rights, but there is no need to protect the supervisor from coercion when the supervisor is acting on his or her own initiative. 6 As we found 6 In Buddies Super Markets, 223 NLRB 950 (1976), enf. denied 550 F.2d 39 (5th Cir 1977), the Board found that the dismissal of a supervisor for voluntarily warning an employee of possible unfair labor action that might be taken against him violated Sec. 8(a)(1). The Board there rea- in Parker-Robb, it is the need to ensure that statuto- rily excluded employees are not coerced into vio- lating the law or discouraged from participating in Board or grievance proceedings that compels pro- tection for supervisors. As we find that Evelyn Bach was in no way coerced into violating the law or discouraged from participating in Board or grievance procedures here, her discharge was not a violation of the Act.7 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Pontiac Osteopathic Hospital, Pontiac, Michigan, its officers, agents, successors, and as- signs, shall take the action set forth in the Order as modified. 1. Delete paragraph 1(b) and reletter the subse- quent paragraphs. 2. Substitute the following as paragraphs 2(a) and (c). "(a) Offer Bonnie Beltramo immediate and full reinstatement to her former position or, if that posi- tion 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 discrimination soned that "there is little difference between a supervisor refusing to engage in unfair labor practices and refusing to stand by in silence while his employer embarks on a planned course of action toward that end." 223 NLRB at 950 fn. 2 Buddies Super Markets, however, was overruled by Parker-Robb, 262 NLRB at 404 fn. 20. Consequently, Buddies Super Markets is not controlling here. It must also be emphasized that, in restricting the circumstances in which the discharge of a supervisor may constitute a violation of Sec. 8(a)(1) of the Act, the Board in Parker-Robb was not engaged simply in effectuating its own policy preferences. Rather, it was responding to the policies of Congress that underlie the exclusion of supervisors from the protection of the Act. As the Supreme Court noted in reviewing the leg- islative history of Secs. 2(3) and (11) and 14(a) of the Act, Congress rec- ognized supervisors as members of management who were "obliged to be loyal to their employer's interests." Beasley V. Food Fair of North Caroli- na, 416 U.S. 653, 659-660 (1974). The Board simply acknowledged that an employer is generally free to require a supervisor's loyalty to its posi- tions vis-a-vis its employees, except in those circumstances, identified by the Board, in which the employer forces the supervisor to become an in- strument of actions that are directly contrary to employee interests under the Act. Parker-Robb, supra, 262 NLRB at 402-403. 7 While Bach was discouraged from testifying on behalf of Beltramo at Respondent's appeals board proceedings, we note that those proceedings, as the judge found and we affirm, were not proceedings implemented pursuant to a collective-bargaining agreement, to which we would be willing to defer. See fn. 2. Consequently, they are not proceedings that enjoy recognition under the Act Further, as noted, Bach was not even asked, let alone required, to participate in those proceedings in support of the Respondent's position. Reasoning that Bach's second discharge was for the same reason as her first discharge, the judge concluded that the second discharge was also an 8(a)(1) violation. Because we find that Bach's first discharge did not violate Sec. 8(aX1) of the Act, we likewise conclude that the second dis- charge was not a violation of the Act. 444 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD against her in the manner set forth in the remedy section of this decision. "(c) Remove from its files any reference to the discharge of Bonnie Beltramo on 6 January 1984 and 7 February 1984, and advise her in writing that this has been done, and that no evidence of these unlawful acts will be used as a basis for future per- sonnel actions against her." 3. Substitute the attached notice for that of the administrative law judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT discharge employees because they have engaged in protected concerted activities for the purpose of mutual aid and protection. WE WILL NOT maintain in our employee hand- book any rule that prohibits employees from solic- iting funds for any purpose on our property with- out our approval, or from discussing employee problems. 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 National Labor Relations Act. WE WILL offer Bonnie Beltramo immediate and full reinstatement to her former position or, if that position no longer exists, to a substantially equiva- lent position without prejudice to her seniority or other rights or privileges, and make her whole for any losses sustained as a result of our discriminato- ry and unlawful actions, with interest. WE WILL remove from our files any reference to the discharge of Bonnie Beltramo, and notify her in writing that this has been done and that evidence of her unlawful discharge will not be used as a basis for future personnel action against her. WE WILL rescind the rules in our employee handbook prohibiting employees from soliciting funds for any purpose on our property without our approval, and from discussing employee problems. PONTIAC OSTEOPATHIC HOSPITAL Linda Rabin, Esq., for the General Counsel. Stephen M Kelley, Esq., of Detroit, Michigan, and Sharon F. Rapp, Esq., of Pontiac, Michigan, for the Respond- ent. DECISION WILLIAM A. POPE II, Administrative Law Judge. In a complaint, dated 7 March 1984, an amended complaint, dated 21 June 1984, and a second amended complaint, dated 5 July 1984, the Regional Director for Region 7 of the National Labor Relations Board alleged that the Re- spondent, Pontiac Osteopathic Hospital, engaged in unfair labor practices, in violation of Section 8(aX1) and (4) of the National Labor Relations Act (the Act). The three original charges in this case were filed on 19 Janu- ary 1984 (an amended charge was filed on 8 February 1984), 29 February 1984, and 24 May 1984, by Bonnie Be'tram°, Evelyn Bach, and Sharon McKay, respective- ly. Trial took place in Detroit, Michigan, on 22 days be- tween 18 October 1984 and 31 January 1985, before Ad- ministrative Law Judge William A. Pope II. I. BACKGROUND Pontiac Osteopathic Hospital, the Respondent, is a general patient-care facility located in Pontiac, Michigan. In addition to its main hospital, Respondent operates out- patient health care centers in two nearby communities. One of these is the Oxford Health Care Center, located in Oxford, Michigan, a community approximately 17 miles north of the main hospital. The other is the Milford Health Care Center, located in Milford, Michigan, a community approximately 17 miles west of the main hos- pital. All three of the charging parties are former or cur- rent employees of Respondent at its Oxford Health Care Center. Charging Party Bonnie Beltramo is a registered nurse. She began working as a staff nurse at Respondent's main hospital on 5 September 1978, and transferred to the Oxford Health Care Center on 1 July 1980 as a clinical nurse, where she remained employed until dismissed, for the second and final time, on 7 February 1984. It is undisputed that on 31 December 1983, while on duty at the Oxford Health Care Center, Beltramo and Charging Party Sharon McKay, who is employed as a clinical technician at the Center, collaborated in author- izing and preparing an apocryphal edition of "POH People," an in-house news bulletin published periodically by Respondent and distributed to its employees. On a blank piece of paper, to which they had attached the masthead cut from an actual edition of "POH People," Beltramo handwrote two satirical articles that she and McKay had coauthored. One of the articles was entitled "Oxford Succeeds from POH"; the other was entitled "A Salute to Judy." Neither Beltramo's name, nor that PONTIAC OSTEOPATHIC HOSPITAL 445 of McKay, appeared anywhere in the fake edition of "POH People" that they had prepared. According to Beltramo's undisputed testimony, using a copy machine at the Oxford Health Care Center, she made three copies of the fake edition of "POH People," and, tore up and discarded the original. She gave one copy each to McKay and Sharon Meyers (another Oxford Health Care Center clinical technician, who also is Beltramo's sister), and left one copy on the desk of Deborra Okolovitch, a clerical employee at the Oxford Health Care Center. On 4 January 1984, a copy of the fake edition of "POH People" prepared by Beltramo and McKay was delivered through Respondent's internal mail system to the main hospital to the office of Patrick Lamberti, Re- spondent's executive assistant. The sender was anony- mous, and remains so. There is no evidence as to where the anonymous sender obtained the copy of the fake newsletter sent to Patrick Lamberti. Lamberti showed the fake newsletter to Rita Mahon, Respondent's director of nursing, whose office also was at the main hospital, and together, on 5 January 1984, they went to the Oxford Health Care Center to investi- gate the incident. From Charging Party Evelyn Bach, they learned that the handwritting appeared to be that of Beltramo. When confronted, BeWarn° admitted her in- volvement, but declined to identify by name anyone else who was involved. Mahon suspended Beltrarno, and di- rected her to report to Mahon's office in the main hospi- tal at Pontiac the next morning. The next morning Mahon dismissed Beltramo for lalcts of disloyality detrimental to the best interests of the hospital." Although Beltramo disclosed McKay's identity during that meeting, Respondent did not initiate action against McKay then. Beltramo filed a grievance concerning her dismissal, following the formal procedure that Respondent had im- plemented for its nonunion, "regular, non-probationary hourly and supervisory employees, up to but not includ- ing Department Heads." The fmal step in the grievance procedure is a hearing before the hospital's appeals board, whose decision, according to the grievance proce- dure handbook, is final and binding. The appeals board heard Beltramo's grievance on 13 January 1984. It voted to reduce her termination to a suspension of 30 days starting from 5 January 1984, to be followed by a proba- tionary period of 90 calendar days. Complying with the appeals board's decision, Re- spondent reinstated Beltramo on 5 February 1984. But 2 days later, on 7 February 1984, after learning of what he characterized as improper contact by Beltramo with members of a community advisory board to the Oxford Health Care Center, Respondent's chief executive offi- cer, Jack Whitlow, directed Charging Party Evelyn Bach, the clinical nurse coordinator at Oxford Health Care Center, to contact Beltramo an,d tell her she was dismissed. Bach communicated that message to Beltramo in a telephone conversation that evening. The next day, Beltramo met with Whitlow in his office at the main hos- pital, where Whitlow told her his reasons for discharging her. Beltramo filed a grievance over her second dismissal. The appeals board, after hearing the grievance, voted to uphold the dismissal. Charging Party Evelyn Bach is a registered nurse. She was the clinical nurse coordinator at the Oxford Health Care Center from the time it opened in 1980 until she was dismissed in early 1984. As clinical nurse coordina- tor, she was responsible for supervising nursing services at the Oxford Health Care Center. On 9 February 1984, Rita Mahon, Respondent's direc- tor of nursing, reduced Bach to staff nurse and directed another nurse to take over as clinical nurse coordinator and evaluate nursing services at Oxford Health Care Center. On 23 February 1984, after receiving a report of the evaluation, Mahon dismissed Bach, citing "unsatisfactory work performance" as the reason. Bach filed a grievance concerning her dismissal. The appeals board, after hearing her grievance on 2 March 1984, voted to reinstate her to her position of clinical nurse coordinator, with backpay, and, recommended a "90-day training probationary period that would include appropriate training for the position." Respondent, in what it says was compliance with the appeals board's decision and recommendation, reinstated Bach on 19 March 1984. Respondent designated her as a probationary employee in a training program adminis- tered by Ruth Doss, Respondent's director of education, under the supervision of Mahon. But, Mahon refused to make any commitment that Bach would be reinstated to a clinical nurse coordinator position, in apparent disre- gard of the appeals board decision. Bach's participation in the training program and period of reinstatement were brief, in any event. On 22 March 1984, Mahon again dis- charged Bach, for the asserted reason she was not par- ticipating satisfactorily in the training program. Bach filed a second grievance and received another hearing before the appeals board, but this time the appeals board upheld her dismissal. Charging Party Sharon McKay is a clinical technician at the Oxford Health Care Center, where she has worked since June 1980. It is undisputed that about 3 3 May 1984, McKay, who was working the day shift from 7 a.m. to 3:30 p.m., left the Oxford Health Care Center without informing her supervisor, Judy Cunard. McKay explained that she left hurriedly after receiv- ing a telephone call from her son's school, informing her that her son and another boy were missing from the school grounds. She said that she told Shelley Austin, a registered nurse who was on duty at the time, that she was leaving. She left without punching out on her time- card, or taking her coat or paycheck. The two boys ap- parently were located before McKay arrived at the school. Later that afternoon, McKay returned to the Oxford Health Care Center to pick up her coat and pay- check. The incident was reported to Director of Nursing Mahon, who, on 7 May 1984, suspended McKay for 5 days without pay. McKay filed a grievance over the sus- 446 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD pension, but, after a hearing on 5 June 1984, the appeals board upheld the suspension. On May 14, 1984, Cunard "counseled" McKay con- cerning three incidents that had allegedly occurred during the 2-day period of 3 and 4 May 1984. According to the written "Employee Counseling Record," dated 14 May 1984, which was read and signed on that date by McKay, she had allegedly failed to complete an assign- ment, improperly centrifuged a blood sample drawn from a patient, and gave a brusque response to a child- patient's mother who requested clarification of instruc- tions for the child's care. Although the counseling form, itself, has a blank space for entry of the date the form was sent to the personnel department, no entry was made in that space on the copy of the form signed by McKay and entered into evidence as Joint Exhibit 28. IL ISSUES The complaints allege that Respondent committed unfair labor practices in violation of Section 8(a)(1) and (4) of the Act, by (1) Maintaining work rules that prohibit employees from soliciting funds without the approval of the execu- tive director, and from discussing employee problems among themselves. (2) Discharging Charging Party Beltramo about 6 Jan- uary 1984, reducing the discharge to a 30-day suspension and 90-day probation about 13 January 1984; and, again discharging her on 7 February 1984, because she had en- gaged in protected concerted activities and had filed an unfair labor practice charge. (3) Discharging Charging Party Bach about 23 Febru- ary 1984, because she had announced reluctance to engage in an unfair labor practice, and refusing to rein- state her.' (4) Suspending Charging Party McKay for 5 days about 7 May 1984, and issuing her an unfavorable coun- seling record about 14 May 1984, because she had en- gaged in protected concerted activities. A. The General Counsel's Theory of the Case The General Counsel argues that the satirical newslet- ter prepared by Beltramo and McKay was part of an on- going labor dispute between certain employees and man- agement. In the General Counsel's view, the sentiments expressed in the newsletter were genuinely held by the authors, and related to terms and conditions of their em- ployment that they considered unfair. The newsletter, suggests the General Counsel, was readily distinguishable from the official issues of "POH People," and implied no criticism of the quality of health care provided by Re- spondent. The fact that employee activity publicizes a labor dispute does not deprive that activity of protection it is otherwise entitled to under the Act, asserts the Gen- eral Counsel. In any event, publicity did not form part of Respondent's true reason for penalizing the authors; it was their attitude that concerned Respondent, according to the General Counsel. The General Counsel concludes The second amended complaint was amended at tnal to include the allegation that Respondent has refused to reinstate Bach to her former position. that the fake newsletter was a protected concerted activi- ty. Beltramo, one of its authors, stated that she wrote it to air collective concerns, notes the General Counsel. While the General Counsel does not contend that the newsletter "necessarily presaged any formal attempt at employee self-organization," counsel for the General Counsel does argue that it is hard "to imagine a concert- ed employee undertaking more fundamental to any incip- ient union organizing drive than this effort to inspire fellow employees through a bold attack of [sic] long re- sented management failings." Respondent knew that Bel- tramo had acted in concert with other employees in writing the fake newsletter, argues the General Counsel, and, having disciplined Beltramo for her protected activ- ity under those circumstances, violated Section 8(a)(1) of the Act. Turning to the two challenged work rules, the General Counsel notes that Respondent admitted maintaining them in its employee handbook. The test, argues the General Counsel, is not Respondent's motives for main- taining the work rules, but whether the challenged rules have a tendency to interfere with or restrain employees' exercise of their statutory rights. The two rules are, says the General Counsel, overbroad on their face and consti- tute violations of the Act. Moreover, asserts the General Counsel, because Respondent based its 6 January 1984 discharge of Beltramo in part on the "Confidential Infor- mation" rule, the discharge violated the Act, for that reason alone. Respondent's second discharge of Beltramo, on 7 Feb- ruary 1984, also violated the Act, in the view of the General Counsel, who fmds that Beltramo's efforts to enlist the aid of the advisory board involved no untruths, were not disorderly, and were a continuation of her ac- tivity with respect to the newsletter. In any event, argues the General Counsel, Beltramo would not have been dis- charged on 7 February 1984, but for the fact that she had been illegally discharged on 6 January 1984. More- over, asserts the General Counsel, the 7 February 1984 discharge was motivated by Respondent's hostility toward her because she had filed an unfair labor practice charge. The General Counsel argues that the evidence estab- lishes that Charging Party Bach was discharged on 23 February 1984, because she had opposed Respondent's treatment of Charging Party Beltramo. As early as 6 Jan- uary 1984, the General Counsel points out Bach told Di- rector of Nursing Mahon that she did not support the de- cision to discharge Beltramo; Mahon's response was to lecture Bach on the latter's duty to support all adminis- trative decisions. Later, according to the General Coun- sel, Mahon refused to allow Bach to appear as a witness for Beltramo in the latter's appeals board proceeding in January 1984, and, by implication, Mahon refused to allow Bach to appear as a witness for Beltramo in the latter's 21 February 1984 appeals board hearing. Accord- ing to the General Counsel, the timing of Respondent's discharge of Bach on 23 February 1984 shows that Re- spondent's asserted reasons were pretextual, and, that the real reason was because Bach "openly opposed and at- PONTIAC OSTEOPATHIC HOSPITAL 447 tempted to disassociate herself from the unfair labor practices committed against Beltramo." The General Counsel contends, first, that since Bach was discharged after she had been demoted from "clini- cal nurse coordinator" to "staff nurse," she was a statu- tory employee, and her efforts to come to Beltramo's aid after her demotion (on February 1984) were protected concerted activities. But, continues the General Counsel, even if it is found that she was discharged because of her actions as a supervisor, her discharge on 23 February 1984 still violated the Act. The Board has held, notes the General Counsel, that punishing a supervisor for oppos- ing unfair practices undermines the Section 7 rights of employees, and, therefore, violates Section 8(a)(1). Finally, with regard to Charging Party Bach, the Gen- eral Counsel argues that her second discharge, on 22 March 1984, was vindictive, and "largely based on Mahon's refusal to accept the Appeals Board's recom- mendation in Bach's case." Thus, even though it was not alleged in the complaint as a violation of the Act, the General Counsel says, the second discharge was "merely a furtherance of its [Respondent's] original discharge de- cision." The General Counsel concludes that the suspension of Charging Party McKay on 7 May 1984 was in retaliation for her protected concerted activities in coauthorizing the satirical newsletter on 31 December 1983. According to the General Counsel's argument, the suspension im- posed on her on 7 May 1984 constituted disparate treat- ment. Even Respondent's agent, Robert Rood, says the General Counsel, referred to the suspension as an "obvi- ous set-up job." Thus, contends the General Counsel, the suspension was intended to punish McKay for the pro- tected concerted activity, as was the adverse counseling record issued to her on 14 May 1984. Referring to the affirmative defense raised by Re- spondent, the General Counsel argues that the Board's policy of deferral is not applicable in this case, because there was no collective-bargaining agreement containing a grievance and arbitration procedure in existence, and the requirements for deferral established by the Board were not met. Among other things, contends the General Counsel, the parties had not agreed to be bound by the award of the appeals board, and its procedures, in any event, were not fair and regular, violating as they did, "fundamental due process standards." Finally, argues the General Counsel, Respondent cannot escape the appropriate remedies of reinstatement with backpay for Beltramo and Bach, on the theory they forfeited their rights to reinstatement by reason of their conduct. For one thing, asserts the General Counsel, all the alleged misconduct occurred before they were dis- charged, and, in any event, whenever it occurred, none of the alleged misconduct was of such a character as to bar reinstatement. B. Respondent's Theory of the Case Respondent urges that the National Labor Relations Board defer to Respondent's appeals board decisions in the cases of the three Charging Parties. In the event that there is no deferral, Respondent takes the position that Charging Parties Evelyn Bach and Bonnie Beltramo were not "employees" within the meaning of the Act; and, that none of the Charging Parties were disciplined by Respondent for conduct protected by the Act. To the contrary, argues Respondent, all three Charging Parties were disciplined for cause. Further, contends Respond- ent, its employees did not rely on the challenged provi- sions of the employee handbook as a basis for disciplin- ing the three Charging Parties, and, in any event, the challenged provisions do not violate the Act. On the other hand, notes Respondent, it has sought the General Counsel's approval since October 1984 for alternative language, without success. Finally, argues Respondent, neither reinstatement nor backpay would effectuate the purposes of the Act, even if it is found that Respondent violated the Act. Respondent concedes the Board's jurisdiction for pur- poses of the consolidated complaint; however, it denies that it took any action that had an adverse affect on interstate commerce. Respondent notes that it is the Board's policy to defer to binding arbitration decisions where the proceedings appear to have been fair and regular, the parties agreed to be bound, and the decisions are not clearly repugnant to the purposes and policies of the Act. The appeals board, contends Respondent, was developed by the hos- pital and its employees to resolve differences. An elected employee counsel, says Respondent, drafted the appeals board's rules. It has been Respondent's policy from the start, claims Respondent, not to overturn or reject deci- sions of the appeals board, and the Board has been per- mitted to operate independently of management's influ- ence. Cases are initiated only by employees, notes Re- spondent, and the employees whose cases are heard by the appeals board are represented by an employee advo- cate. Each side has the opportunity to submit documents, call witnesses, cross-examine witnesses for the other side, and argue its own position before the appeals board; thus, says Respondent, proceedings before the appeals board are "fair and regular." There being nothing repug- nant to the purposes of the Act about the appeals board procedure, concluded Respondent, the National Labor Relations Board should defer to Respondent's appeals board's decisions in the cases of the three Charging Par- ties. Charging Party Bach, contends Respondent, was "su- pervisor" within the meaning of Section 2(11) of the Act, as is clear from the fact that she had "both the au- thority to hire and to discipline employees and did so." Because she was not an employee, within the meaning of the Act, she had no rights under Section 7, concludes Respondent. She was not asked, says Respondent, to do anything contrary to the Act, nor did she protest or object to instructions to discharge Charging Party Bel- tramo. Accordingly, Respondent contends she was not disciplined for protesting or refusing to undertake con- duct contrary to the Act, nor was such a reason ever communicated to any employee of Respondent. There- fore, Respondent concludes there is no basis for exten- sion of Section 7 rights to Bach. Respondent argues that Charging Party Beltramo also had sufficient supervisory authority to be considered a 448 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD "supervisor" within the meaning of the Act. In particu- lar, says Respondent, on 31 December 1984, when she participated in writing the fake newsletter, she was a su- pervisor because she had assumed Bach's supervisory duties in the latter's absence, and her responsibilities as a "charge nurse" were generally supervisory in nature. In any event, contends Respondent, her preparation of the fake newsletter was not a protected concerted activi- ty. It was not, says Respondent, related to "an active, concrete dispute between the hospital and any of its em- ployees"; moreover, much about the claimed dissatisfac- tions was untrue. Charging Parties Beltramo and McKay never expressed their concerns relating to these matters through the lines of communication procedures in the employee handbook according to Respondent. Nor did Beltramo make any effort "to channel any of her sup- posed concerns to the PACE Committee at any time whatsoever," Respondent claims. Beltramo admitted, Respondent says, that the fake newsletter did not look toward group action, was never intended to be distributed to or seen by her supervisors, was not intended to change anything, and was meant to "blow off steam," to "complain," and to "gripe." In the course of discussions, says Respondent, Beltramo re- ferred to the newsletter as a joke, and said it was intend- ed for comic relief. Activity of such a nature is not "protected concerted activity," argues Respondent. To be protected, an activi- ty must look toward group action; it cannot make exag- gerated, false, and derogatory comments about top level management; and, the employee must communicate the unsatisfactory employment condition to management, Respondent says. Mere griping is not enough, Respond- ent asserts, nor is the venting of a personal grievance; the activity must be intended to adjust or resolve a griev- ance. Respondent concedes that Charging Party Beltramo was terminated on 6 January 1984, as a result of the fake newsletter, for "[a]cts of disloyalty detrimental to the best interests of the hospital." On the other hand, says Respondent, no action was ever taken against Charging Party McKay as a result of the newsletter. In any event, says Respondent, the 6 January 1984 dis- charge of Charging Party Beltramo was nullified by the appeals board's action, which reinstated her, following a 30-day suspension beginning 5 January 1984. Her second discharge, Respondent goes on, was for cause, and not for any protected concerted activity, and therefore did not violate the Act. Likewise, says Respondent, the discharge of Charging Party Bach on 23 February 1984 was for cause, as was her second discharge on 22 March 1984. Mahon, the, di- rector of nursing, discharged Bach on the first occasion for "unsatisfactory work performance," contends Re- spondent; the newsletter had nothing to do with it. Even under the Wright Line case (251 NLRB 1083 (1980), enfd. as modified 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982)), Respondent continues, the General Counsel must prove by a preponderance of the evidence that but for the discharged employee's purport- ed exercise of protected rights, there would have been no discharge. In this case, says Respondent, Bach would have been terminated in any event based on the informa- tion received by Mahon prior to discharging her indicat- ing mismanagement on Bach's part. Bach's second dis- charge, concludes Respondent, was brought about by her refusal to cooperate with the retraining program mandat- ed by the appeals board. Thus, it, too, was for cause, says Respondent, and was entirely unrelated to the fake newsletter. As for the 5-day suspension imposed on McKay in May 1984, it occurred more than 4 months after the fake newsletter incident, argues Respondent, and it was for her admitted misconduct on 3 May 1984, when she left her job at Oxford Health Care Center without permis- sion. The suspension was not disparate punishment for the misconduct, contends Respondent, because it in- volved a violation of a clear hospital tiolicy for which discharge was authorized. On the other hand, says Re- spondent, the employee counseling record issued to McKay on 14 May 1984 was not disciplinary in nature; it was corrective. It was not part of the progressive disci- plinary system, nor was it the equivalent of a written reprimand. Further, Respondent argues, the General Counsel has not shown that the treatment McKay re- ceived was disparate, and Mahon testified that the fake newsletter was not a factor in the imposition of the 5-day suspension. Respondent contends there is no "case or controver- sy" concerning the two challenged provisions of its em- ployee handbook. The provisions were prepared years ago for legitimate hospital purposes, according to Re- spondent, and neither section has been applied in a manner contrary to the Act. Because the two provisions have not been applied in a manner violative of the Act says Respondent, the allegations of the second amended complaint concerning them should be dismissed. In the alternative, Respondent states that it will consent to entry of an order requiring substitution of its suggested replacement language for the two provisions. Beltramo, who engaged in a series of pranks and jokes at the Oxford Health Care Center, unfettered and uncon- trolled by Bach, had a distinct and clearly negative effect on interstate commerce. Therefore, says Respondent, re- instatement of either one of them would be contrary to the purposes and policies of the Act. Neither is it the purpose of the Act, says Respondent, to condone the in- tentional desertion by McKay of her employment re- sponsibilities. Accordingly, concludes Respondent, no award of backpay or reinstatement is appropriate. III. FINDINGS AND CONCLUSION A. Bonnie Beltramo 1. Charging Party Beltramo was an "employee" under Section 2(3) of the Act Charging Party Bonnie Beltramo, a clinical nurse, began her employment at the Oxford Health Care Center on 1 July 1980. 2 She was discharged from that position 2 As previously indicated she worked as a staff nurse in the emergency room at Pontiac Osteopathic Hospital from 5 September 1978 until she transferred to the Oxford Health Care Center. PONTIAC OSTEOPATHIC HOSPITAL 449 for the second and last time on 7 February 1984. Her su- pervisor at the Oxford Health Care Center for the entire time was Charging Party Evelyn Bach. Beltramo agreed in her testimony that at times prior to 22 December 1983, she acted as charge nurse, or the nurse responsible for the Oxford Health Care Center on duty nursing staff employees in the absence of Bach. She testified that she was in charge of the two clinical techni- cians on duty with her on 31 December 1983, because Bach was not in the building. In support of its argument that Beltramo was a super- visor under the Act, Respondent points to the testimony by Bach that she had taken 5 or 6 days off around 31 December 1983, and that she had designated Bonnie Bel- tramo to be in charge when the latter was on duty, and Shelley Austin (another registered nurse employed at the Oxford Health Care Center) to be in charge when she was on duty. Respondent also cites testimony by Mahon, Respondent's director of nursing, that a charge nurse has a number of responsibilities, including scheduling and making recommendations concerning hiring, pay, wage increases, standards of practice, policies, and patient care. Mahon's testimony on this point, however, has been taken out of context, as she was describing her responsi- bilities in previous employment as the charge nurse in the emergency room of Bay City Mercy Hospital, and not the responsibilities of a charge nurse at Respondent's hospital or at its health care centers, in general, or the responsibilities of Beltramo, in particular. The Act defines the term "employee" in Section 2(3) as follows: "The term "employee" shall include any em- ployee. . . but shall not include. . . any individual em- ployed as a supervisor. . . ." It is well established that a person who works for an employer is an employee within the Act unless the employment falls within an ex- cluded category. It is also well established that an indi- vidual's status is determined by his or her duties, not by a job title or theoretical power. Winco Petroleum Co., 241 NLRB 1118, 1122 (1979). Section 2(11) defines a supervisor as any person having authority in the interest of the employer, to hire, trans- fer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively recommend such action, if. . . such authority is not of a merely routine or clerical nature, but requires the use of independent judgment. It is not necessary in order to be classified as a super- visor that a person exercise all the criteria of Section 2(11). It is sufficient to classify an employee as a supervi- sor if he or she meets one of the 12 tests. NLRB v. Yeshi- va University, 444 U.S. 672 (1980). But, mere possession of one or more of the powers enumerated in Section 2(11) does not alone confer supervisory status. Supervi- sory status exists only when the supervisory functions are exercised in a manner requiring the use of independ- ent judgment, and not merely in a routine or clerical manner Hydro Conduit Corp,, 254 NLRB 433 (1981). "[T]he statute expressly insists that a supervisor (1) have authority (2) to use independent judgment (3) in per- forming such supervisory functions (4) in the interest of management." NLRB v. Security Guard Service, 384 F.2d 143, 147-148 (5th Cir. 1967). The Board further held, in the case of a registered nurse who worked as a staff nurse and, sporadically, as an acting relief supervisor, that "her limited role as acting relief supervisor was insufficient to warrant the conclusion that she was a supervisor within the meaning of the Act." Canonsburg General Hospital Assn., 244 NLRB 899, 900 (1979). The Board noted in making its decision that the nurse involved did not spend a substan- tial or significant portion of her working time as an acting relief supervisor, and that her principal substitu- tion for the nursing or regular relief supervisors occurred during their vacation time and otherwise was sporadic and irregular. "Mlle burden is on the party alleging supervisory status to prove that it, in fact, exists." Commercial Movers, Inc., 240 NLRB 288, 290 (1979). Respondent in this case has failed to meet that burden with regard to Bonnie Beltramo. The record here established only that Beltramo, at un- specified times prior to 22 December 1983, and for some portion of a 5- or 6-day period around 31 December 1983, was "in charge" of other employees at the Oxford Health Care Center, in the absence of Bach, the clinical nurse coordinator and regular supervisor. Nowhere is it indicated what powers Beltramo could or did exercise while "in charge," or even how often, over any ascer- tainable period of time, she actually was "in charge." There is nothing, in fact, to indicate that she ever had the authority to exercise any of the criteria of superviso- ry authority listed in Section 2(11), much less that she actually exercised any of them, or that whatever she did do while "in charge" required the exercise of independ- ent judgment and was not merely routine.3 Moreover, it cannot be ascertained from the record whether Beltramo's authority when "in charge" was pri- marily exercised in providing patient care, or in supervis- ing employees on behalf of management. In Misericordia Hospital v. NLRB, 623 F.2d 808 (2d Cir. 1980), the Second Circuit enforced the Board's decision and order in 246 NLRB 351 (1979), holding, in part, that a head nurse was not a supervisor under the Act where her au- thority was exercised primarily in providing patient care, not in supervising employees in the interest of the em- ployer. The court noted that the Board's test for determining whether a health care profes- sional is a sUpervisor is whether that individual, who may give direction to other employees in the exercise of professional judgment which is inciden- tal to the professional's treatment of patients, also exercises supervisory authority in the interest of the employer. [Quoting, Newton-Wellesley Hospital, 219 NLRB 699, 699-700 (1975).] 3 As previously noted, Mahon's testimony adds nothing to the facts pertaining to this issue because her testimony concerned her own earlier responsibilities as a charge nurse for another employer, and not Beltra- mo's responsibilities for this employer. 450 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Of that test, the court said that "while not simple to apply, [it] has nonetheless received the express approval of Congress, as the Supreme Court noted in Yeshiva, supra."4 Misericordia Hospital v. NLRB, 623 F.2d at 625. Thus, the mere fact that Beltramo was at times "in charge" of other employees does not establish that she possessed or exercised any of the statutory indicia of su- pervisory status. Neither West Florida Hospital, 273 NLRB 1421 (1985), nor Albany Medical Center Hospital, 273 NLRB 485 (1984), both of which are cited by Respondent, support the proposition that Beltramo had sufficient supervisory authority to be deemed a supervisor. In West Florida Hospital, the Board held that the evening coordinator in the operating room of the hospital was a supervisor, be- cause for most of the evening shift he was the person of highest authority in the operating room, and, in carrying out his responsibilities, which included assigning and di- recting employees and effectively recommending that they be disciplined, rewarded, or promoted, he exercises "independent judgment to ensure that employees carried out Respondent's requirement of them." In Albany Medi- cal Center, the Board held that assistant head nurses, who had "authority effectively to promote and regard employees working under them," were supervisors. In that case, the Board found that assistant head nurses spent 50 percent of their time taking care of patients' needs, and the remainder performing administrative tasks. The Board further commented that if they were not supervisors, the supervisor-to-employee ratio on evening and night shifts would be inordinately low. In a similar vein, the Board commented in West Florida Hos- pital that if the evening coordinator was not a supervisor, the 15 operating room employees would have been unsu- pervised for about 6 hours a day, "an unlikely situation," in the Board's view. In the case of Beltramo, there is no evidence that her responsibilities on the intermittent and sporadic occasions when she was "in charge" were anything other than to ensure that the patients' needs were met, and that her su- pervision of other employees, to whatever extent she did so, was anything other than incidental to the treatment of patients. At best, her role as "in charge" nurse was limited; there is no evidence that it was a regular occur- rence that occupied a substantial or significant portion of her working time. Nor, is there any evidence that she ex- ercised independent judgment, or possessed or exercised any of the indicia of supervisory status listed in Section 2(11) of the Act. Her situation clearly was distinguish- able from that of the medical personnel whose status was at issue in West Florida Hospital and Albany Medical Center. I find no basis for concluding that Beltramo was a su- pervisor under the Act. Such evidence as there is points strongly to the conclusion that she did not possess or ex- ercise any of the statutory indicia of supervisory status, and, that she was, in fact, an employee under the Act. The burden of proof being on Respondent to establish her supervisory status, and Respondent having failed to 4 NLRB v. Yeshiva University, 444 U.S. 672 (1980). meet that burden, I find that Beltramo was an employee under Section 2(3) of the Act. 2. The fake newsletter prepared by Bonnie Bel- tramo and Sharon McKay on 31 December 1983 was a protected concerted activity The protection extended to employees by Section 7 of the Act is not limited to the right to engage in union ac- tivity or engage in collective-bargaining activities. NLRB v. Washington Aluminum Co., 370 U.S. 9 (1962). It in- cludes activity engaged in for "other mutual aid or pro- tection." But, to be protected, employee activity must be both "concerted" in nature and undertaken for the pur- pose of "other mutual aid or protection." 5 Ontario Knife Co. v. NLRB, 637 F.2d 840 (2d Cir. 1980). At the outset, I fmd that there is overwhelming evi- dence that the preparation of the fake newsletter was a "concerted" activity. "Concerted," by definition, means done or performed by two or more together or in coop- eration. 6 The fake newsletter at issue in this case was written and prepared by two employees of Respondent, Bonnie Beltramo and Sharon McKay, who acted togeth- er and in cooperation with each other. A third, but lesser contributor to the fake newsletter, was Sharon Meyers, another of Respondent's employees, who edited the two pieces authorized by Beltramo and McKay. According to the testimony of Beltramo, whom I fmd to have been a credible witness on this point, on the morning of 31 December 1983, between 9 and 915 a.m., she and McKay were seated at the nursing station at Oxford Health Care Center. Beltramo, who was reading the latest issue of "POH People," Respondent's in-house newsletter, pointed out to McKay that Beltramo did not feel that the activities of Oxford Health Care Center em- ployees were adequately represented in the newsletter. McKay agreed, and the two decided to write their own newsletter. According to Beltramo, the fake newsletter was in her handwriting, but she and McKay collaborated on the wording of the main article, and the second of the two articles was composed by McKay. After finishing the fake newsletter, Beltramo gave it to her sister, Clini- cal Technician Sharon Meyers, to read, and Meyers pointed out a "couple" of spelling errors, a "couple" of punctuation errors, and suggested a grammatical change. Sharon McKay gave similar testimony. She stated that on the morning of 31 December 1983 she and Bonnie Behramo were at the nurses' station at the Oxford Health Care Center. After finishing reading an issue of "POH People," Beltramo commented on its poor quality and absence of much to say. McKay agreed, and further agreed to Beltramo's suggestion that they write their own newsletter. The two of them went to the clean utili- ty room, where they jointly composed and Beltramo transcribed the fake newsletter at issue in this case. McKay said that it was her idea to write the article enti- 5 Sec. 7 provides, in pertment part: "Employees shall have the right . . ., to engage in other concerted activities for the purpose of collec- tive bargaining or other mutual aid or protection . . ." 6 The issue of whether the activities of a smgle employee can also be "concerted" for purposes of the Act does not arise under the facts of this case. PONTIAC OSTEOPATHIC HOSPITAL 451 tied "A Salute to Judy," and that she contributed ideas to the other part of the newsletter. Sharon Meyers testified that she was scheduled to work on 31 December 1983 at the Oxford Health Care Center, and that she arrived about 9:30 a.m. There were no patients in the Center at the time. She found Beltramo and McKay in the clean utility room, and was handed a piece of paper to read by Beltramo. The paper was the original of the fake newsletter. Meyer told Beltramo that "it hit right where it lives, and the hospital always did treat us like a bastard child." Beltramo took the fake newsletter from the room, and returned a few minutes later with copies, one of which she gave to Meyers. Meyers initially testified that she pointed out a few mis- takes in spelling and grammar, and watched while Bel- tramo corrected them. She said she did not recall wheth- er Beltramo made the corrections on the photocopy or the original. Later, Meyers corrected her testimony, saying that she had mixed up the sequence of events, and that she had pointed out the mistakes before the copies were made and Beltramo then made the corrections on the original. I fmd it clearly established by the evidence that Charging Party Beltramo and Charging Party McKay collaborated in jointly authoring and producing the fake newsletter. They agreed on the concept, and each of them contributed thoughts and words to the finished product. It was not a situation in which McKay gave only casual assistance to Beltramo. It was a joint enter- prise, from start to finish. The fact that the newsletter was in Beltramo's handwriting is immaterial. Whether the activity was concerted is determined by such factors as to how the idea originated, and the authorship of the finished product, and not by who performed the function of scribe. Applying that criteria, I fmd that the fake newsletter was a concerted activity within the meaning of Section 7 of the Act. As already stated, Section 7 protects concerted activi- ty for the purpose of "other mutual aid or protection." The Supreme Court has recognized that Congress in- tended the "mutual aid or protection" clause to be broad, reaching beyond grievance settlement, collective bar- gaining, and union activity. This clause of Section 7 has been held to reach concerted activities of employees in support of employees of other employers, and employ- ees' efforts to improve terms and conditions of employ- ment through channels other than the employee-employ- er relationship, including resort to administrative forums and legislators. Eastex, Inc. v. NLRB, 43 U.S. 556, 565 (1978); Kaiser Engineers v. NLRB, 538 F.2d 1379 (9th Cir. 1976), enfg. 213 NLRB 752 (1975). In Eastex, Inc., supra, the Supreme Court, while noting "that some con- certed activity bears a less immediate relationship to em- ployees' interest as employees than other such activity," and "that at some point the relationship becomes so at- tenuated that an activity cannot fairly be deemed to come within the 'mutual aid or protection clause," went on to hold "[t]hat task is for the Board to perform in the first instance as it considers the wide variety of cases that come before it." The Supreme Court in Eastex rejected 7 Rastex, Inc. v. NLRB, supra at 567-568 as unpersuasive the cases cited by the petitioners in sup- port of its argument that to be protected under Section 7, concerted activity must seek a specific remedy for a work-related complaint or grievance.8 The handwritten newsletter at issue here appears under the printed masthead, "Pontiac Osteopathic Hospi- tal People," bearing the date, December 1985. It contains two handwritten articles, one entitled "Oxford Succeeds [sic] from POH," and the other, "A Salute to Judy." The first article announces that OHCC (Oxford Health Care Center) declared its independence from Pontiac Os- teopathic Hospital, as a result of a long series of disap- pointments suffered by OHCC's staff. The article at- tributes the statement, "The OHCC is as much a part of POH as the trash removal service," to Lamberti, identi- fied as the assistant administrator. Lamberti is also quoted as refuting claims that OHCC has been ignored and unacknowledged since opening 3 years earlier by stating, "I've been out there twice—I know its there." J. Whitlow, identified as the administrator, is quoted as er- roneously referring to the Oxford Health Care Center as the "Botsford Health Care Center." Elsewhere in the first article, an "unidentified employee" is quoted as saying, "We've been kept off any committees that have been formed—(Staff Nurse Counsel, PACE Committee; Quality Circle). We never hear any news and any arti- cles that we submit are not published." The second article states that "Judy," identified as "OHCC's newest Administrator," thanks the staff of "P011 People" for keeping her car on the road. In sub- stance, "Judy" is quoted as saying that she uses "POH People" as weights in the back of her car to give it trac- tion on slippery roads. The article continues by quoting "Judy" as saying, "after the roads improve with the wheather [sic], she uses the in-house publication for place mats." 1° In her direct testimony during the trial, Beltramo stated that she wrote the newsletter because she was frustrated and angry about many of the events that had taken place since the health care center had opened, and she wanted to air her grievances. She stated that she felt the health care center staff was not kept abreast of events at the main hospital and positions that became open, and that the health care center was not adequately represented in the POH People newsletter. Beltramo said that the health care center had been promised two seats on the PACE Committee, but that she had recently re- ceived notice that she had not been selected, and knew that no one else from the health care center had been se- lected. Beltramo testified that the newsletter that she and McKay wrote was intended for the coworkers on Beltra- mo's shift. On cross-examination, Beltramo testified that she would characterize the newsletter as satire, and, because it was written in a satirical and sarcastic fashion, as well a Id. at 567 fn. 17. 9 The PACE Committee was established in 1983 by POH's executive director, Jack H. Whitlow, as an advisory group made up of employees and management personnel, who review hospital procedures and prob- lems, and propose solutions. 1° Judy refers to OHCC Administrator Judy Garner. 452 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD as its sloppy physical appearance, nobody would mistake it for an official newsletter. She stated that she intended it to go no further than the three other employees on her shift to whom copies were distributed. She said that it did have something to do with trying to improve work- ing conditions, because it would improve morale and make "us" feel better to identify "our" problems and laugh about them. At another point in cross-examination, Beltramo referred to the newsletter as a "humorous outlet," but also said she was identifying and airing a grievance to her coworkers, Meyers, McKay, and Oko- lovitch. She admitted that she intended "to poke fun" at Whitlow and Lamberti, respectively, the executive direc- tor of the hospital and his executive assistant, but denied that she intended to poke fun at any of Judy Gardner's traits." Beltramo admitted that she did not intend the newsletter to be A vehicle for adjusting grievances. In further testimony, Beltramo stated that she felt the problems of the Oxford Health Care Center were that the administration of the hospital attached little impor- tance to it, and that there was a lack of effective commu- nication with the main hospital. She said that while the newsletter was exaggerated, she hoped the people to whom she showed it would recognize the problems, and that would improve morale. She admitted that she might have told Rita Mahon, the director of nursing, that the newsletter was a joke or prank, and that she told the ap- peals board that it was not so significant that she should lose her job over it. 12 Beltramo said she felt that the newsletter was a means of group communication. She also said it was a way to "blow off steam," to complain, and to gripe. Sharon McKay testified that she agreed with Beltra- mo's observation that the POH People newsletter "really didn't say much," and that she participated in writing the fake newsletter on 31 December 1983. It was, said McKay, her idea to write the piece entitled "A Salute to Judy," and she contributed ideas to the rest of the news- letter. McKay stated that she told Rita Mahon that the fake newsletter was written because of feelings of frus- tration, and that even McKay's husband, if he had read the newsletter, would not have known what it meant. McKay said that she also testified at Beltramo's appeals board hearing on 13 January 1984 that no harm was meant by the newsletter to anyone personally. On cross- examination, during the trial of this case, McKay ac- knowledged that the newsletter was not a serious at- tempt to get grievances adjusted. Its only purpose, she said, was venting off anger. According to Rita Mahon, Respondent's director of nursing, on 5 January 1983, Beltramo admitted she had written the newsletter, but said that she did not mean anything by it. Mahon testified that she told Beltramo that as she was the author, she was responsible for it and that it posed serious potential harm to the Center, her 11 Under a reorganization plan put into effect in late 1983, Gardner, who had formerly been the administrative assistant at the Oxford Health Care Center, was put in charge of clerical personnel and physical facili- ties at the Center. 12 Eteltramo testified that she told the appeals board that she deserved to be punished, but not to be fired. She stated that she felt she had mis- used the hospital's copy machine. coworkers, and the hospital. To this, according to Mahon, Beltramo replied that she had written it in a moment of frustration to provide some comic relief, that it was a bright spot in her morning, and that she meant nothing by it. Mahon stated that she told BeWarn° that she did not think she could afford to keep a nurse who communicated in that fashion, and that she expected reg- istered nurses to provide positive, concrete examples, and to serve as role models for the rest of the staff. Follow- ing further remarks in this same vein, according to Mahon, Beltramo said it was nothing but a joke. At the conclusion of the confrontation, Mahon told Beltramo that she was suspended. The next day, 6 January 1984, Mahon terminated Beltramo's employment. Beltramo, ac- cording to Mahon, again said that she meant nothing by the newsletter. At her appeals board hearing, according to Mahon, Beltramo said that she had made three copies of the newsletter and distributed them to the people she worked with. She stated further that they just laughed, it was of no significance and meant nothing to them, it was just a minor incident. Patrick Lamberti, executive assistant at Pontiac Osteo- pathic Hospital (second in charge at the hospital), stated that he was present on 5 January 1984 when Be!tram° was questioned by Mahon about the newsletter. Accord- ing to Lamberti, Beltramo was upset, and "did not un- derstand why we were trying to make such a big deal out of it." Lamberti testified that Beltramo "assured us it was not to be taken serious," and "that it was a joke." He said that Beltramo stated that she meant nothing by it, that she was not trying to hurt anybody, that she was just trying to be funny. The authors of the fake newsletter used the literary de- vices of satire and irony to mock or censor Pontiac Os- teopathic Hospital and its top administrative officials, Jack H. Whitlow and Patrick Lamberti, for some of the hospital's policies towards the Oxford Health Care Center, and for the lack of, in the authors' opinion, worthwhile material in POH People, the hospital's in- house newsletter. While their effect may arguably fall into the category of bad writing, the fact that the authors used the literary techniques of satire and irony to make their point, as opposed to a more neutral factual recita- tion of their dissatisfaction, does not deprive the commu- nication that they produced of any protection under Sec- tion 7 of the Act to which it might otherwise be entitled. Satire and irony are recognized literary terms of expres- sion. They can be as useful and appropriate in labor rela- tions writing as in writing for any other purpose. The key word, of course, is purpose. Section 7 gives employees the right to engage in other concerted activity for the purpose of other mutual aid or protection. I have already concluded that the writing at issue in this case was a concerted activity; the remaining question is whether it was for the purpose of other mutual aid or protection. In general terms, if a writing amounting to a concerted activity was for the purpose of other mutual aid or protection it is protected under Section 7 regard- less of its style. PONTIAC OSTEOPATHIC HOSPITAL 453 The Supreme Court, in Eastex. Inc. v. NLRB, supra, recognizing that Congress intended that the protection of the other mutual aid or protection clause of Section 7 be broad, stated that it is the Board's responsibility in the first instance to decide what activity comes within the protection of the Act. The matters about which Bel- tramo and McKay complained in the fake newsletter re- lated to complaints by Pontiac Osteopathic Hospital em- ployees that they were kept off committees, that they never heard any news (of the main hospital), and that they were unsuccessful in getting articles that they sub- mitted published in the hospital's in-house newsletter, POH People. Clearly, the matters discussed in the fake newsletter related to employees' concerns and conditions of their employment. They bore, in fact, an immediate relationship to the employees' interests as employees. That relationship was not so attenuated that it does not come within the mutual aid or protection clause. Eastex, Inc. v. NLRB, supra. There is no rule that only concerted activity undertak- en for the purpose of having a grievance adjusted or in anticipation of some other action is entitled to protection under Section 7, as argued by the Respondent. Neither is it significant that Beltramo took no direct action to com- municate her dissatisfaction with employment conditions to her supervisor or anyone else associated with Re- spondent's management." The fact that no plan for deal- ing with their dissatisfaction with terms and conditions of employment had been yet devised or agreed on by Beltramo, McKay, and their coworkers, does remove their concerted activity from the protection of Section 7 by the immediacy of its relationship to their interests as employees, and to conditions of their employment. Action taken by employees to resolve disputes con- cerning terms and conditions of employment seldom occurs spontaneously. In almost every instance, action, whether it be to adjust a grievance or resolve a dispute concerning terms and conditions of employment in some other fashion, is the result of discussions among employ- ees and accommodations of varying points of view until a common course of action is agreed on. Before there can be agreement on a course of action to resolve a problem, there first must be communication among the employees leading to agreement that there is a problem, and then agreement on what course of action to take. 13 Mushroom Transportation Co. v. NLRB, 330 F.2d 683 (3d Cir. 1964); Indiana Gear Works v. NLRB, 371 F.2d 273 (7th Cir. 1967); Tyler Busi- ness Services v. NLRB, 680 F.2d 338 (4th Cir. 1982); Blaw-Knox Foundry & Mill n NLRB, 646 F.2d 113 (4th Cir. 1981); Felton Casteel, Inc. v. NLRB, 627 F.2d 23 (7th Cir. 1980); NLRB a Buddies Supermarkets, 481 F.2d 714 (5th Cir. 1973); and other cases cited by Respondent, do not support the Respondent's argument that protected concerted activity must look toward group action, and must be more than mere griping or the venting of personal grievances. The issue in each of the cases cited by the Respondent was whether the activities of a single employee could be considered concerted for purposes of the Act. Variously in the cases cited, courts of appeals held that to be protected, a single individual's ac- tivity must have been undertaken for the purpose of inducing or prepar- ing for group action, or on behalf of a group of employees; personal mis- sions are not considered concerted activity under any test. Blaw-Knox Foundry & Mill v. NLRB, supra The holdings in these cases, however, are inapposite to the instant case, because here the activity in question involved at least two individuals who collaborated in the Joint authorship of a newsletter. Their activity was by its very nature concerted. These preliminary steps can be accomplished only through full and free communication among the employ- ees, and it is of no importance whether that communica- tion is oral or in writing. It is ludicrous to suggest that before concerted activity is protected by Section 7, it must have reached the ad- vanced stage of agreement by two or more employees on a particular course of action. Obviously, if that were the case, an alert employer, so inclined, could thoroughly, and with relative impugnity, frustrate the purposes of the Act by ferreting out and getting rid of dissatisfied em- ployees before they are able to identify and communicate with other employees similarly dissatisfied with terms and conditions of employment, and convince them to join in a common course of action. In short concerted activity for the purpose of other mutual aid or protection has to start somewhere, and for the protection of the Act to mean anything, such activity must be protected at the start, as well as at later stages when action is taken against the employer. Beltramo testified that she participated in authoring the fake newsletter because she wanted to air her griev- ances about events that had taken place at the health care center. She said she intended it to go no further than her coworkers on her shift, and that she thought all of them would feel better by identifying their problems and laughing at them. She said that she hoped that the people she showed the newsletter to would recognize the problems, and that would improve morale. McKay agreed in her testimony that the fake newsletter, of which she was the coauthor, was written because of feel- ings of frustration, and that it was not a serious attempt to get grievance adjusted. Considering this testimony, which I find credible, I further fmd that the fake news- letter was but a first step in a communication process that dealt with employee dissatisfaction with certain terms and conditions of their employment. It was no dif- ferent, in that context, than an oral statement, and it should be treated no differently. It was a concerted ac- tivity; whether it would have ever led to action by these or other employees concerning the terms and conditions of employment involved, we will never know, because Respondent nipped any future action in the bud by dis- charging Beltramo. That, it can hardly be disputed, rather effectively made the point of what would happen to dissidents who criticized the hospital's policy or its administration. I give no weight to statements allegedly made by Bel- tramo to Mahon on 5 January 1984, the day Mahon sus- pended her, or to the appeals board, when Beltramo ap- peared before that body in an effort to win reinstatement to her job. The conditions under which Beltramo spoke on those occasions were highly coercive; in the first in- stance an explanation for the newsletter was demanded of her after she was called in on her day off by the hos- pital's director of nursing and its second ranking adminis- trative officer. Beltramo had to have realized that she was in serious trouble, as indeed she was since the cost of the incident turned out to be her job, and it was natu- ral for her to attempt to minimize the significance of the incident. Similarly coercive was her appearance before 454 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the appeals board where her only chance to win rein- statement was to appear contrite and, again, minimize the significance of the newsletter. Thus, I fmd that her state- ments on those occasions were coerced and unreliable. The Respondent is not entitled to assert in its defense statements that were coerced from its employee directly, or as a result of a chain of events that it set in motion. There is no question but that the quoted remarks at- tributed in the fake newsletter to Jack Whitlow, Patrick Lamberti, and "Judy" were not, in fact, said by those in- dividuals. That fact alone, however, does not operate to deprive the fake newsletter of the protection it would otherwise have under the Act as protected concerted ac- tivity. There is "nothing in the [newsletter] that rises to the level of public disparagement necessary to deprive otherwise protected activities of the protection of the Act." Allied Aviation Service Co. of New Jersey, 248 NLRB 229, 231 (1980). The newsletter was not intended for public distribu- tion, nor, indeed, is there any evidence that it was seen by any member of the public, at least not until the Re- spondent turned the matter into a public dispute by ter- minating Beltramo. In any event, the contents of the letter do not disparage or vilify Respondent's manage- ment officials, its businees, or its reputation. It is clear that the author's purpose was to make the points that Re- spondent's management did not devote sufficient time and attention to the operation of the Oxford Health Care Center; its employees were not selected to serve on hos- pital committees; and, the in-house newsletter did not give adequate coverage to events at the health care center. There was nothing in the fake newsletter that can reasonably be interpreted as denigrating the three indi- viduals to whom quotes are attributed, or seeking to bring reproach or discredit on them personally. I con- chide that under the circumstances, the fake newsletter was protected. It contained considerable literary license, but not to the point of being egregious in nature, and it was directly related to employee interests and working conditions. Accordingly, for the reasons stated, I find that the fake newsletter authorized by Beltramo and McKay about 31 December 1983 was protected concerted activi- ty under Section 7 of the Act. 3. Respondent violated Section 8(a)(1) of the Act by firing Bonnie Beltramo on 6 January 1984 because of her protected concerted activity Respondent acknowledges that Bonnie Beltramo was fired on 6 January 1984 "for la]cts of disloyalty detri- mental to the best interests of hospital,' based upon her preparation and distribution of the newsletter . . . ." (R. Br. p. 57). As her authorship, and for that matter, limited distribution, of the fake newsletter were protected con- certed activities under Section 7 of the Act, Respondent violated Section 8(a)(1) by terminating Beltramo's em- ployment on 6 January 1984 because of her involvement with the fake newsletter.14 14 Although Rita Mahon, Respondent's director of nursing, testified that it was her decision to fire Beltramo, I find that decision was effec- tively mandated by Jack H. Whitlow, Respondent's executive director, 4. Respondent violated Section 8(a)(1) of the Act by firing Bonnie Beltramo on 7 February 1984 because she had participated in protected concerted activity Respondent argues that its initial discharge of Bel- tramo was nullified by action of the hospital's appeals board, which changed the discharge of 6 January 1984 to a 30-day suspension and reinstatement with a 90-day pro- bationary period. Beltramo's second discharge, on 7 Feb- ruary 1984, did not violate the Act, Respondent contin- ues, because she was discharged for cause and not be- cause of her protected concerted activity. Beltramo's second discharge, which occurred on 7 February 1984, several days after she returned to work following her 30-day suspension, was imposed by Jack H. Whitlow, Respondent's executive director. According to Executive Director Whitlow, while at the Oxford Health Care Center on the evening of 7 Feb- ruary 1984 to attend a meeting of the advisory board (made up of community volunteers who serve as liason between the center and the community), he learned that Beltramo had asked one advisory board member, Robert Ousnamer, for a statement attesting that she was doing a good job in the community, and that she had misrepre- sented to the advisory board chairman, Reverend David Russell, that Mahon was going to attend the advisory board's 7 February 1984 meeting to discuss Beltramo's case, Whitlow also stated that he learned from another advisory board member, Edward Bossardet, about two abusive telephone calls that the latter said he had re- ceived from someone identifying himself as a representa- tive of the NLRB, apparently related to Beltramo's case.15 Whitlow said the board members were upset, and that he was upset that they were being bothered regard- ing something that the hospital had regular channels to take care of. After conferring with Patrick Lamberti and Rita Mahon, who were also present for the board meet- ing, Whitlow said, it was decided "we" would have to go ahead and terminate Beltramo. But, Whitlow testified, his decision was based on Reverend Russell's statements as "we" were not sure who made the telephone calls to Bossardet. who told Mahon that he was very unhappy with the newsletter, which he feared would have adverse financial and public relations consequences for the hospital, and then asked Mahon and Patrick Lambern, Respond- ent's executive assistant, to investigate and take care of it. (Whitlow testi- fied he left the decision as to what was to be done up to Patrick Lam- berti, who was m charge of the health care centers ) In a conversation with Mahon, after she had identified Beltramo as one of the authors of the fake newsletter, Whitlow told Mahon that it was her decision, but that she had to remember that whatever action she took had to be in the best interest of the institution. Under the circumstances, Mahon was left with little discretion, and it is hardly surprising that she took the drastic action that she did. ii Whitlow said he was asked by Patrick Lamberti to attend the board meeting on 7 February 1984 because of complaints by Bossardet and Reverend Russell that they were bemg harassed by Bonnie Beltramo. Before the advisory board meeting started, Whitlow called each of the three board members mdividually mto an office m the Oxford Health Care Center and questioned them concerning any contacts they had with Bonnie Beltramo Patrick Lamberti testified he had asked Whitlow to attend the board meeting after receiving a telephone call from Judy Gardner, administrator of the Oxford Health Care Center, expressing her concerns following a telephone conversation she had with Reverend Rus- sell. PONTIAC OSTEOPATHIC HOSPITAL 455 In any event Whitlow directed that Beltramo, who was not on duty at the Oxford Health Care Center, be summarily fired, without being given any opportunity to present her side of the incidents. Whitlow instructed Bach, who had been told to remain at the Health Care Center and was Beltramo's su- pervisor, to place a telephone call to Be'tram° and tell her that she was fired and to come to Whitlow's office the next morning and he would tell her why. The next morning, according to Whitlow's testimony, he told Bel- tramo that she had no business calling the advisory board members and he would not stand for it. He told her that if she had a problem she knew what the griev- ance procedure was and could follow it, because she had already used it once. Whitlow denied that his decision to fire Beltramo was based on the newsletter. The notice of dismissal, read to BeWaal.° by Patrick Lamberti (but signed by Rita Mahon, who apparently wrote it), gives as reasons for Beltramo's dismissal: "Dis- orderly conduct during 30-day suspension. Fabrication of untruth causing unrest to members of the Advisory Board resulting in professional misconduct—acting in less than the best interest of the institution."16 Mahon testified that she had been asked by Reverend Russell, the advisory board chairman, to attend the board meeting on 7 February 1984 for the purpose of discussing what was happening in home health care hi the community. Bonnie Beltramo acknowledged in her testimony that she had several contacts with members of the advisory board after she was fired on 6 January 1984. On 8 Janu- ary she called Reverend Russell and asked if there was anything he could do to help her from his position as ad- visory board chairman. On 9 January she called Robert Ousnamer, who was a township official, to arrange for his secretary to type a letter of reference written for her by a social worker named Carolyn Wiegand. On 1 Feb- ruary, she met with Ousnamer at his request to discuss medical care matters. In the course of that meeting, ac- cording to BeWarn°, there was brief discussion of her termination, and he mentioned that Mahon was going to talk to the board the next week about some problems at the health care center. Beltramo testified that she spoke to Reverend Russell by telephone on 6 February, and asked him if she could attend the advisory board meeting the next eVening, because she was concerned Mahon was going to talk about her employment relationship with the hospital. Russell said that advisory board meetings were 16 Patrick Lambert' testified it was Whitlow's decision to fire Bel- tramo, but while he gave his feelings why that was necessary, he did not state exact reasons, and he asked Mahon to draft the language. Larnberti testified that he heard Whitlow say that Beltramo's actions were disloyal to the institution; that she had caused concern among the advisory board members by her false statements, and, it was not in the best interests of the institution for an employee to act in that fashion. According to Lam- bend, the disorderly conduct by Beltramo during her 30-day suspension was the telephone calls to the advisory board members, the untruth was the statement that Mahon was coming to the advisory board meeting to discuss Beltramo's case; and, the professional misconduct was that she did not follow protocol in dealing with her problems through the grievance procedure. Lamberti testified that the unrest among board members was shown by Reverend Russell's request that Jack H. Whitlow attend the board meeting on 7 February 1984, because the members were not sure of their responsibilities not open to the public and to his knowledge Mahon was not going to be there to discuss Beltramo's problem, but that if she did, Beltramo would be given an opportunity to address the advisory board. Reverend David Russell and Robert Ousnamer, called as witnesses by the General Counsel, gave testimony that generally paralleled that of Beltramo concerning the nature of her contacts with them in January and Febru- ary 1984. Concerning her request for help in regaining her job, Reverend Russell said that he told Beltramo that the adivsory board was strictly advisory in its function, and the best he could do was to refer her request to the advisory board's employee staff committee, "which re- viewed those kind of things." On the second occasion on which he spoke to her, on the Monday night preceding the regular board meeting, Reverend Russell said he told her that the person she thought was going to be there to discuss her was to be there for an entirely different reason and had been on the advisory board's agenda for several months. 17 Robert Ousnamer, a supervisor of Ad- dison Township (in which Oxford Health Care Center is located) and a member of the Oxford Health Care Center advisory board, stated that although BeWarn° asked him for a letter in support of her, to his knowledge no one connected with the township prepared any let- ters. Ousnamer stated that around 1 February 1984 he in- vited Beltramo to his office to discuss the declining pa- tient load at the Oxford Health Care Center, and that Beltramo brought up her situation at the Center. Al- though she was unhappy at the way she had been treat- ed, she did not ask him to do anything. Ousnarner said he told Judy Gardner of his conversations with Bonnie Beltramo. The normal remedy ordered by the Board in cases where an employee has been discharged because he or she engaged in protected concerted activity is reinstate- ment, with backpay, and a cease-and-desist order pro- scribing similar misconduct in the future (Sec. 10(c) of the Act). But, the obligation to reinstate can be avoided by showing that at some point after an unlawful dis- charge, the employee engaged in misconduct for which he would have been terminated in any event. Section 10(c) of the Act also provides that: "No order of the Board shall require the reinstatement of any individual as an employee who has been suspended or discharged, or the payment to him of any back pay, if such individual was suspended or discharged for cause." In this case, however, I fmd from the evidence that the reasons cited by Respondent for termination of Bonnie Beltramo's employment by Jack H. Whitlow on 7 February 1984 were pretextual, and that Respondent was motivated by unlawful considerations. It is clear that 17 According to Reverend Russell's testimony, at some point in the meeting of 7 February 1984, with knowledge that Bebra= had been fired for the second time, the advisory board met privately to resolve its anxiety as to what its role was Their conclusion was that they had no authority, and their only responsibility was in terms of community rela- tions, with the objective of trying to keep the community from becoming upset by events at the hospital, or having the employees' morale upset by events that "got out of proportion." Reverend Russell also stated that the advisory board was never told it could not discuss employment problems with employees. 456 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Beltramo was not fired on 7 February 1984 for cause. The reasons given by Respondent for the second firing were no more than a pretext, intended to obscure the real reason, which was that Respondent did not want to retain Beltramo as an employee because of her protected concerted activity for which it had unsuccessfully tried to fire her on 6 January 1984. Among the factors that I have considered in reaching this conclusion are the proximity in time of the two dis- charges, the summary nature of the second discharge, and the fact that the activities for which Beltramo was discharged on the second occasion were closely related to and would not have occurred but for her first dis- charge and the protected concerted activities which pre- ceded it. As already noted, Beltramo's first discharge was effec- tively mandated by Jack H. Whitlow, Respondent's exec- utive director, who was displeased by the fake newslet- ter, and made it clear to his subordinates, Patrick Lam- berti, and Rita Mahon, that he thought the activity was not in the best interest of the hospital and required strong action. It is hardly surprising, therefore, that Mahon would not wish to appear weak or indecisive in the eyes of her supervisor, Executive Director Whitlow, and dealt as harshly as she could with Beltramo by dis- charging her, despite the fact that there was absolutely no evidence to support Whitlow's seeming concern about adverse publicity attaching to the hospital because of the fake newsletter. But, even the best laid plans sometimes come unraveled, and in this case, Mahon was unable to convince the hospital's appeals board to sustain anything more than a 30-day suspension, followed by a probation- ary period. Then, a mere 3 days after returning to work following the 30-day suspension, Beltramo was again fired, this time summarily on orders of Executive Direc- tor Whitlow, personally. Curiously, aside from not giving Beltramo a semblance of rudimentary due process by allowing her an opportu- nity to explain her actions, if she could, before taking action against her, Whitlow apparently did not even take the time to tell his subordinates his specific reasons for firing her. Instead, it appears that he contended himself with generalizations such as her actions were disloyal and not in the best interests of the hospital, and caused unrest among advisory board members, and then left it up to his subordinates, Patrick Lamberti and Rita Mahon, to prepare something in writing afterwards. The summary nature of Beltramo's second discharge, and its proximity in time to her return to work after Respond- ent's unsuccessful first attempt to discharge her, are clear indicators that the real reason for the second discharge was the protected concerted activity that brought about the first discharge. The activities for which Beltramo was discharged for the second time occurred as an aftermath of her illegal first discharge. Having been fired for her role in prepar- ing the fake newsletter, Beltramo sought letters of refer- ence from community leaders to submit to the hospital's appeals board. There is no question but that the two members of the Oxford Health Care Center advisory board whom she contacted were leaders in her commu- nity. One, Reverend David Russell was the pastor of a local church; the other, Robert Ousnamer, was a supervi- sor of Addison Township, apparently an elected local government official. That those two individuals hap- pened to be volunteer members, the Oxford Health Care Center Advisory Board merely reaffirms their stature as community leaders. BeWarn° had the same right as any other member of the community to have access to com- munity leaders and government officials. Much as Re- spondent apparently would like to have it otherwise, Bel- tramo forfeited none of her civil rights by undertaking employment with Pontiac Osteopathic Hospital. But, regardless that Beltramo may have had every legal right to speak to whom she chose, the fact that she chose to speak to Reverend Russell and Robert Ous- namer was upsetting to Executive Director Whitlow, who testified that he was upset that Beltramo would bother advisory board members regarding something that the hospital had procedures to handle. The morning after ordering the discharge a Behim°, Whitlow told her that she had no business calling the advisory board members and he would not stand for it. And, clearly, he did not stand for it, as he put it. He ordered that Bel- tramo be discharged, which was the most severe penalty he could impose on her. Just as clearly, the second dis- charge was in retaliation for Beltramo's successful efforts to win reinstatement after being discharged on 6 January 1984 for her protected concerted activities, and reflected Respondent's determination to accomplish the second time what it had failed to accomplish the first time. Of course, even though Beltramo may have had a legal right to contact the advisory board members, the manner in which she did so, or the substance of what she said, might conceivably have been so egregious as to amount to misconduct for which the Respondent could have discharged her for cause. Such, however, was not the case. There was nothing improper, offensive, ob- scene, , threatening, or degrading about Beltramo's con- tact with the two advisory board members. Respondent's attempt to characterize it otherwise in its written termi- nation notice lacks any factual basis and is unpersuasive. Respondent, in the written termination notice, charged Beltramo with disorderly conduct, professional miscon- duct resulting from fabrication of an untruth that caused unrest among advisory board members, and with acting in less than the best interest of the hospital. Executive Director Whitlow characterized her actions as disloyal. These charges are gross exaggerations, completely lack- ing any factual basis. At the time Beltramo first contacted Reverend Russell and Robert Ousnamer, she had been fired from her job. She was no longer an employee of Respondent. Under those circumstances, one must wonder just what duty of loyalty she owed to Respondent, or how her efforts to assemble all available favorable evidence to present in her behalf to the appeals board constituted disloyalty. She did not denigrate the quality of medical care offered by Respondent or the professional qualifications and dedication of its employees. She simply asked for letters of personal reference. That does not amount to disloyal- ty. PONTIAC OSTEOPATHIC HOSPITAL 457 Be that as it may, her contact with the advisory board members, under no reasonable definition of the term, constituted "disorderly conduct." There was nothing dis- orderly about her conduct at all. So far as this record re- flects, she was at all times polite and respectful in her contActs with the two advisory board members. The sug- gestion, advanced by Patrick Lamberti, that her mere contact with the board members, standing alone, was dis- orderly conduct is preposterous. Equally baseless is the charge that she was guilty of professional misconduct by fabricating an untruth that caused unrest among the advisory board members. The untruth, according to Patrick Lamberti, was Beltramo's statement to Reverend Russell that Mahon was coming to the board meeting to discuss Beltramo's case. But, even assuming that the statement was untrue, there is nothing in the record to indicate that it was other than a good-faith mistake on Beltramo's part. There is no evi- dence whatsoever that Beltramo knowingly misstated the purpose of Mahon's visit. In any event, she did not mis- lead or upset Reverend Russell by the statement, as he was aware of the actual purpose of Mahon's visit, which had been scheduled for several months, and corrected Beltramo's misinformation. Finally, there is a complete break in the chain of logic to equate Beltramo's state- ment with professional misconduct. Beltramo is a profes- sional registered nurse; this entire incident had absolutely nothing to do with the manner in which she performed her duties as a nursing professional. As a registered nurse, Beltramo is licensed by the State, and professional misconduct would subject her to possible disciplinary action, including possible revocation of her license. Whatever else this incident may have amounted to, it did not reflect on her professional qualifications or conduct. Professional misconduct is a grave charge, and in this case, a completely baseless and intemperate one. The charge of acting in a manner less than in the best interest of the institution is wordy, but lacking in sub- stance. The best interests of any institution are very sub- jective, and depend mostly on who is interpreting them. In the instant case, Respondent has produced no evi- dence that Beltramo did anything more than take reason- able steps to defend herself against an adverse personnel action brought by her employer. It has not even proven its allegation that she bypassed the so-called grievance procedure because community service and professional reputation were clearly relevant matters that Beltramo could present to the appeals board in her defense. I find that the ambiguous charge of failing to act in the best in- terest of the hospital is unsubstantiated. I find that the Respondent violated Section 8(a)(1) of the Act by discharging Bonnie Beltramo on 7 February 1984. The General Counsel has proven by a preponder- ance of the evidence that the Respondent was motivated in discharging charging her by her protected activities on 31 De- cember 1983, for which it discharged her on 6 January 1984. The discharge on 7 February 1984 was in retalia- tion for Beltramo's successful appeal to Respondent's ap- peals board, which reduced the discharge to a 30-day suspension and a period of probation. The discharge of Bonnie Beltramo on 7 February 1984 interfered with, re- strained, and coerced her in the exercise of rights guar- anteed by Section 7 of the Act. I do not find, however, that the General Counsel has proved, by a preponderance of the evidence, that the Re- spondent was motivated in discharging Bonnie Beltramo on 7 February 1984 by animosity as the result of her filing charges with the National Labor Relations Board, in violation of Section 8(a)(4) of the Act. Respondent's witnesses testified that they did not believe that the al- leged harassing telephone calls made to Edward Bossar- det were made by an NLRB agent, and the General Counsel does not contend that they were. I find the evi- dence insufficient to establish that Executive Director Whitlow discharged Beltranao because he thought that an NLRB investigation was in progress and Beltramo had started it. B. Evelyn Bach 1. Evelyn Bach was a statutory supervisor until she was demoted on 9 February 1984 Until she was demoted to staff nurse on 9 February 1984, Evelyn Bach was clinical nurse coordinator at the Oxford Health Care Center, a position that she had held since the center opened to the public in June 1980. She exercised many of the criteria of Section 2(11) of the Act, which defines a supervisor, including the authority to hire, assign, evaluate, and discipline staff nurses and clinical technicians. The evidence establishes that she had the authority to use independent judgment in per- forming supervisory functions in the interest of manage- ment. Accordingly, I find that Bach was a supervisor, as defined by Section 2(11) of the Act, and that she was in fact on a regular basis in charge of staff nurses and clini- cal technicians at the Oxford Health Care Center. Hydro Conduit Corp., supra; NLRB v. Security Guard Service, Inc., supra. 2. Bach's demotion on 9 February 1984 and subsequent discharge on 23 February 1984 violated Section 8(a)(1) Bach was demoted to staff nurse on 9 February 1984 by Rita Mahon, Respondent's director of nursing. Ac- cording to Mahon, she told Bach that Bach would be acting as a staff nurse, but no changes would be made in her personnel file, and she would receive the same hourly wage. Mahon testified that she also told Bach she was on 30-day notice, that Judy Cunard would be the di- rector of nursing services at Oxford Health Care Center and would evaluate the situation, and that Bach's posi- tion was in question. On 23 February 1984, Mahon discharged Bach. Following her, demotion and dismissal, Bach filed a grievance with the hospital's appeals board, which heard her case on 2 March 1984. The appeals board voted to reinstate Bach to her position as clinical nurse coordina- tor with backpay, and recommended a 90-day training probationary period. Bach returned to work on 19 March 1984 at the main hospital to begin her 90-day training program. But, 4 days later, on 22 March 1984, 458 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Mahon again discharged Bach. A second appeal by Bach to the appeals board was unsuccessful. The General Counsel contends that Bach was dis- charged on 23 February 1984, after she had become a statutory employee, for engaging in protected concerted activity on behalf of Bonnie Beltramo, and, therefore, her discharge violated the Act. In the alternative, the General Counsel asserts that the discharge of Bach on 23 February 1984 violated the Act, even if it is found that the decision was based on Bach's activities as a supervi- sor. The General Counsel further argues that Bach's 22 March 1984 discharge also violated the Act, because it was in retaliation for an unfair labor practice charge that she had filed with the NLRB on 29 February 1984, and because "it was merely a furtherance of its [Respond- ent's] original unlawful discharge decision." The Respondent answers that Bach was discharged for good cause on 23 February 1984, within the meaning of Section 10(c) of the Act. Respondent argues that the evi- dence shows that Bach's 23 February 1984 discharge had nothing to do with the fake newsletter in which Bel- traino was involved, or with Bach's reaction to the newsletter and subsequent disciplinary events. Respond- ent contends that Bach would have been discharged in any event on 23 February 1984, based on information re- ceived by Mahon between October 1983 and the date of discharge, with particular emphasis on information re- ceived during February 1984. Finally, Respondent states that Bach was discharged again on 22 March 1984 be- cause of her failure to cooperate with the retraining pro- gram mandated by the appeals board. Bach testified that Rita Mahon showed her a copy of the fake newsletter in question on 5 January 1984, and she told Mahon that she recognized the handwriting as that of Bonnie Beltramo. Bach said she was present that day when Mahon and Patrick Lamberti questioned Bonnie Beltramo, and that she was present the next day in Mahon's office at the main hospital, when Mahon told Bonnie Beltramo that she was terminated. Bach said she told Mahon that she did not think the incident warranted discipline, and that Mahon expressed concern that Bach would not support the administrative decision, and said she was to support all administrative decisions, no matter what they were. She was also told by Jack H. Whitlow, Respondent's executive director, that she could not openly disagree with administrative decisions. Bach said she replied that while she disagreed with the decision, she had not done so openly. Subsequently, according to Bach, she wrote a letter stating her disagreement with the decision to fire Bel- tramo, which she gave to Beltramo to give to the ap- peals board. Bach testified that she was told by Robert Rood, the employee advocate who represented employ- ees before the appeals board, that she could not appear before the appeals board in person. On the morning of the hearing, Mahon told Bach she could attend if she really wanted to, but Bach declined, because, according to her testimony, the hearing had already started, and she could not get in touch with Robert Rood. Bach stated that she was present in her office on 7 February 1984, when Mahon had a conversation with Bonnie Beltramo 2 days after the latter returned to work. After Bonnie Beltramo left, Mahon. criticized Beltramo's bad breath and lack of a clean uniform, and stated that she was upset by something Bonnie Beltramo had said at the appeals board hearing. In the course of her conversa- tion with Mahon that afternoon, Bach related that she had been told by Bonnie Beltramo that Mahon was going to discuss staff problems with the advisory board that evening. Bach also told Mahon that Bonnie Bel- tramo had learned this from an advisory board member. Mahon said she was going to get to the bottom of the matter, and a short time later left to meet with Executive Director Jack H. Whitlow. A few minutes later, according to Bach, she was sum- moned to Judy Gardner's office, where she found Jack Whitlow, Patrick Lamberti, Gardner, and Mahon wait- ing. Executive Director Whitlow, according to Bach, yelled at her, and demanded to know what she knew about Bonnie Beltramo's contacts with advisory board members. Executive Director Whitlow called in and spoke to three advisory board members (Russell, Ous- namer, and Bossardet), and, after they had left, said that Beltramo was through, to fire her. When Bach asked who was to tell Beltramo, Executive Director Whitlow directed Bach to do it, stating that Beltramo was to be told to come to his office the next morning and he would tell her why he had fired her. Bach stated that she did as 'directed by Executive Director Whitlow. Bach testified that 2 days later, on 9 February 1984, Mahon came to the Oxford Health Care Center, accom- panied by Judy Cunard, another nurse employed by Re- spondent. Bach testified that she was told by Mahon that she could no longer be clinical nurse coordinator and would be a staff nurse, because she had not supported Mahon in the Beltramo situation. According to Bach, up to that point she had not discussed with other Oxford Health Care Center employees how she felt about Beltra- mo's discharge. Mahon told Bach that Judy Cunard would be the nurse coordinator at Oxford, and they would meet again in 30 days to decide whether Bach would get her job back. Bach testified that when she met again with Mahon and Cunard on 23 February 1984, Mahon said she could not tolerate Bach's failure to support administrative deci- sions, and that she had an enormous amount of evidence, specifically mentioning timecards. Bach requested a rep- resentative, and Robert Rood, Respondent's employee advocate, was called in. Rood asked whether it was a counseling or termination session, and when Mahon said, termination, advised Bach to say nothing further. Bach did refuse Mahon's offer to allow her to resign. Bach's notice of dismissal states she was dismissed on 23 Febru- ary 1984 for unsatisfactory work performance. Curiously, a termination of service record 'prepared on 23 March 1984, effective 23 February 1984, signed by Rita Mahon, listed unsatisfactory performance as the reason for dis- charge, rated Bach's work habits and character in a range from excellent to fair, and recommended her for reemployment, with the qualifying notation, "only after a review by myself." Bach stated that she reported to the main hospital on 19 March 1984, to begin the 90-day training program PONTIAC OSTEOPATHIC HOSPITAL 459 recommended by the appeals board. She remained in the program, she said, until 22 March 1984, and performed all the tasks assigned to her during that time. On 22 March 1984, Mahon asked her to sign a committment that she would - complete the program; Bach refused, unless she was guaranteed a job afterwards, a guarantee that Mahon refused to give. Mahon then told Bach to go home and wait for a telephone call. That afternoon, Mahon called Bach and informed her that she was termi- nated. Bach acknowledged that she considered Bonnie Bel- tramo to be her friend. She also stated that she did not support the administrative decision to discharge Bel- tramo, and that she told Beltramo that in person and on the telephone. Bach said she did not refuse to terminate Beltramo on 7 February 1984. Copies of Bach's 1981, 1982, and 1983 employee eval- uations were introduced into evidence as joint exhibits. She was evaluated on 11 June 1981 by Rita Mahon, who rated her as "exceeds responsibility" in 8 of 11 catego- ries, and "meets responsibility" in the remaining 3 cate- gories. Mahon characterized Bach as an "asset," and praised her "sincere honest approach," which Mahon found to be refreshing. Mahon also stated that Bach is consistent and fair, and is respected by "her personnel." On 23 June 1982, on a different type of evaluation form, Bach was given an excellent rating by her supervi- sor, John Cruikshank (then the administrator of the Oxford Health Care Center). By separate letter, dated 25 June 1982, Mahon concurred in the excellent rating given by John Cruikshank, and commented on Bach's high professional standards, accountability, loyalty, and cooperativeness. On 10 June 1983, using yet another type of rating form, John Cruikshank rated Bach as "very effective," the second highest category that the form describes as performance at a very high level with a high degree of proficiency. In a written summary (Jt. Exh. 12) of her meeting with Bach on 7 February 1984, Mahon noted that Bach had disagreed that Bonnie Beltramo's breath was offen- sive that day, and that her uniform was unkempt. Mahon noted that she told Bach "this was just an additional issue that demonstrated the discrepancy in our nursing management philosophies." Mahon further noted that "I discussed her [Bach's] participation in the 'lunch' (a lunch held to welcome Bonnie Beltramo back from her 30-day suspension), and I was concerned of her lack of support for Administration. I reinforced the premise that we could disagree on whatever, but when we are in front of the staff we need to be a united front." Accord- ing to Mahon's summary, "Evelyn informed me that she supported her staff and depended on these people, and she saw no need to support me." In her testimony during the trial of this case, Mahon stated that after talking to Bonnie Beltramo about the fake newsletter on 5 January 1984, she told Evelyn Bach that she was considering a 30-day suspension or termina- tion. Bach replied that a 30-day suspension would not change anything or make any difference. Mahon testified that she met at the Oxford Health Care Center with Bonnie Beltramo and Evelyn Bach on 7 February 1984, 2 days after Beltramo had returned to work following her 30-day suspension. Mahon said she observed that Beltramo had bad breath, and her uniform was dirty and unkempt. She asked Bach why she would allow a nurse to be on duty looking like that, but Bach said she had not seen Beltramo in that fashion. After the advisory board meeting, Mahon testified she had conversation with several members of the Oxford staff (a physician, two nurses, and two clinical techni- cians), who were on duty at the time. The employees complained about working conditions at the Oxford Health Care Center, which they described as deplorable, noting that there was unprofessional conduct and behav- ior and ridicule of patients. Shelley Austin, one of the nurses, stated to Mahon that they had complained to Bach about conditions several times, but she refused to do anything. Mahon described the conversation about pranks and working conditions as "minimal." She said the employees felt helpless because their supervisor would not do anything, and they were glad somebody was finally doing something that evening (presumbly re- ferring to firing Beltramo for the second time). According to Mahon's testimony, on 8 February 1984, she made the decision to demote Bach and send Judy Cunard to the Oxford Health Care Center to be director of nursing services, because of what she had learned about the depressed state of nursing personnel on the night of 7 February. Mahon stated that she also had all the knowledge that she had gained from Bonnie Beltra- mo's first appeals board hearing, and that was a factor in her decision to send Cunard to the Oxford Health Care Center. Mahon Stated she recalled conversations with Bach in which the latter expressed a wish to be a witness for Bonnie Beltramo at the appeals board hearing. Mahon stated that she refused to say yes or no, but told Bach that she was an adult and if she wanted to be a wit- ness she would have to contact Bob Rood. Mahon said she did not recall that she had any contact with Rood about whether Bach could be a witness. Mahon testified that on 14 or 15 February 1984, Judy Gardner gave her a lengthy list of events that had taken place at the Oxford Health Care Center while Bach was supervisor. Judy Gardner was concerned about the events, and also gave Mahon a list of pranks and jokes that had taken place at the Oxford Health Care Center. Judy Gardner told Mahon that she was relieved that Judy Cunard had taken over. On 13 February 1984, Mahon stated she met with Linda Fitzpatrick, a former nurse at the Oxford Health Care Center. Fitzpatrick related that she had made nu- merous complaints to Evelyn Bach about poor working conditions and her personal problems with Bonnie Bel- tramo. According to Mahon, Linda Fitzpatrick stated that Bach refused to do anything because Bonnie Bel- tramo was her friend, and Linda Fitzpatrick felt she had no recourse but to resign. Fitzpatrick showed Mahon an "End of the Nightmare Party" poster, which had been posted at the Oxford Health Care Center when she re- signed and which she believed referred to her. Fitzpa- trick also complained about a questionable evaluation she 460 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD had received from Bach, and an unfavorable reference that Bach sent to a prospective employer. Another person who came forward to complain to Mahon was Nancy Miller, the Oxford town clerk, who accused the night-shift nurses at the Oxford Health Care Center of sexual misconduct and leaving the center while on duty. Miller, however, apparently believed that her husband (a town police officer) was involved in a rela- tionship with one of the nurses, a circumstance that Mahon said caused her to believe that Miller might be less than objective. Mahon testified that on 17 February 1984 she received a letter written to the appeals board concerning the Bel- tramo case, signed by a number of Oxford Health Care Center employees who did want their names disclosed to Bach. According to the letter, the employees feared re- taliation. The letter stated that the employees objected to reinstatement of Bonnie Beltramo, because over a period of years she had played numerous unfunny, unkind, cal- lous practical jokes on certain individuals. Further, the employees stated Bonnie Beltramo had harassed certain employees, both on and off the job, to the point they sought employment elsewhere. The letter also claimed that her professionalism on the job was somewhat jaded, and that there were times when she was inattentive to patients, preferring instead to stay in the clean utility room joking and gossiping with other nursing personnel and center employees. Mahon testified that she considered the letter and the charges that the employees made in it as reasons to dis- charge Bach. Mahon stated that she presented the letter to the appeals board (which denied Bonnie Beltramo's second discharge appeal), with the names covered over. Mahon said that she did not learn anything new in the appeals board hearing concerning Bach. Mahon testified on the morning of 23 February that she met with Judy Cunard, with whom she discussed electrical wiring repairs Bach's husband allegedly made to an EKG and another machine at the Oxford Health Care Center. Mahon testified that she felt the repairs were inappropriate. Cunard also brought timecards that she felt had been improperly filled out and that she be- lieved showed favoritism by Bach towards some employ- ees. Cunard told Mahon that the staff seemed happier, and there seemed to be an increase in the number of pa- tients. According to Mahon, by that time she had already made a rather firm decision to discharge Bach, and the information provided by Judy Cunard just confirmed her conviction," Mahon testified that she told Bach that afternoon that she was terminated, mentioning that as a supervisor Bach had allowed the mistreatment of fellow professionals, and citing other factors, including the im- proper timecards, possible product liability because of 18 Elsewhere in her direct examination, Mahon said that in dividing up the weight she gave to various factors in reaching her decision to dis- charge Bach, she gave 30=35 percent to employee concerns and docu- mentation; one-third to "product liability, and equipment and standards and professionalism, proficience [sic] and so forth"; and, one-third to "time cards and documentation and those type of things, being hospital policies and procedures." the improper wiring, failure to provide a continuing edu- cation program, and her lack of responsibility. Mahon stated that she told Bach that there was noth- ing personal, that she was just doing her job. Mahon denied that anything said by Bach at the time of Bonnie Beltramo's first discharge was a factor in Bach's dis- charge. Mahon stated that Bach never expressed any re- luctance to discipline Bonnie Beltramo, and never re- fused to carry out any disciplinary action against Bonnie Beltramo. According to Mahon, Bach did not say any- thing on the occasion of Bonnie Beltramo's second dis- charge, so that was not a factor in the decision to dis- charge Bach. According to Mahon, she felt that Bach was uncoop- erative in the 90-day training program required by the appeals board. Bach stated at the beginning of the pro- gram, on 19 March 1984, that she would not have agreed to the retraining program if she had known she would be on probationary status. Mahon testified that she told Bach that she could not promise her the job of clinical nurse coordinator at the Oxford Health Care Center, that being a determination that would be made at the end of the training program. On 22 March 1984, after Bach re- fused to sign a written committment that she would follow through with the training program to the end, Mahon suspended her and told her to go home. Later that day, Mahon spoke to Bach by telephone and in- formed her that she was terminated.' 9 Although supervisors are generally excluded from the Act's coverage, there are a few circumstances in which the discharge of a supervisor may violate Section 8(a)(1) of the Act. Parker-Robb Chevrolet, 262 NLRB 402 (1982). I find this case to be one such circumstance. The Board has held that it is the employees, and not the supervisors, who are protected, and that the dis- charge of a supervisor violates the Act only where it interferes with the exercise of employees' Section 7 rights. As stated by the Board in Parker-Robb Chevrolet, supra at 402-403: Thus, an employer may not discharge a supervisor for giving testimony adverse to an employer's inter- est either at an NLRB proceeding or during the processing of an employee's grievance under the collective-bargaining agreement. Similarly, an em- ployer may not discharge a supervisor for refusing to commit unfair labor practices, or because the su- pervisor fails to prevent unionization. In all these situations, however, the protection afforded supervi- sors stems not from any statutory protection inuring to them, but rather from the need to vindicate the employees' exercise of their Section 7 rights. In the same case, the Board also stated (262 NLRB at 404): However, the justification for finding a violation and reinstating a supervisor who would otherwise be excluded from coverage under the Act is 19 Mahon stated that she informed Executive Director Whitlow of her decision to terminate Bach, and that he agreed, stating it was her decision to make. PONTIAC OSTEOPATHIC HOSPITAL 461 grounded upon the view that the discharge itself se- verely impinged on the employees' Section 7 rights. As noted above, the Board has found that, when a supervisor is discharged for testifying at a Board hearing or a contractual grievance proceeding, for refusing to commit unfair labor practices, or for fail- ing to prevent unionization, the impact of the dis- charge itself on employees' Section 7 rights, cou- pled with the need to ensure that even statutorily excluded individuals may not be coerced into vio- lating the law or discouraged from participating in Board processes or grievance procedures, compels that they be protected despite the general statutory exclusion. . . . . In the final analysis, the instant case, and indeed all supervisory discharge cases, may be resolved by this analysis: The discharge of supervisors is unlaw- ful when it interferes with the right of employees to exercise their rights under Section 7 of the Act, as when they give testimony adverse to their employ- ers' interest or when they refuse to commit unfair labor practices. I reject the General Counsel's contention that as an employee after her demotion on 7 February 1984 Evelyn Bach's discharge violated the Act. She was discharged for her activities while she was a supervisor, not for any- thing that happened between 7 February 1984, when she was demoted, and 23 February 1984, when she was dis- charged. The legality of her discharge, therefore, de- pends on what protection under the Act she was entitled to as a supervisor. I find that Respondent, acting through its director of nursing, Rita Mahon, demoted, then discharged, Charg- ing Party Evelyn Bach principally because she had re- fused to support Respondent's efforts to discharge Bonnie Beltramo in retaliation for the protected concert- ed activity in which the latter had engaged and for her vigorous efforts to present an effective defense to the Respondent's appeals board following her first discharge. In making this finding, I have considered the timing of Evelyn Bach's demotion on 9 February 1984 and dis- charge on 23 February 1984, testimony and other state- ments by Evelyn Bach and Rita Mahon, and disparately harsh treatment of Evelyn Bach, The initial question, of course, is whether the dis- charge (or demotion) of a supervisor for refusing to sup- port his or her employer's actions amounting to an unfair labor practice, as opposed to a refusal by the supervisor to commit an unfair labor practice, may violate Section 8(a)(1) of the Act at al1. 20 I conclude that the distinction between a supervisor refusing to support the commission of an unfair labor practice by his or her employer, and the supervisor refusing to commit the unfair labor prac- tice at the employer's direction, is a distinction without difference in legal effect. The purpose of the Act is to encourage and promote harmonious relations between employers and employees. 20 For purposes of the Act demotion may be as discriminatory an action as discharge, and as much a violation of the Act. To accomplish that goal, Section 8(a)(1) of the Act makes it illegal for an employer to interfere with em- ployees in the exercise of their rights guaranteed by Sec- tion 7 of the Act. It would make little sense, and would frustrate the purposes of the Act, to extend coverage of the Act to protect a supervisor who refuses to commit an unfair labor practice in violation of the Act, but not to protect a supervisor who, by refusing to support the employer's commission of unfair labor practices, in effect, tells his employer not to violate the Act. The impact on employees' Section 7 rights of the discharge of a supervisor who refuses to commit an unfair labor prac- tice cannot be distinguished for practical purposes from the impact of the discharge of a supervisor for refusing to support the commission of an unfair labor practice by the employer. Opposition by its supervisors may cause an employer to reconsider its contemplated action, and thus preclude a violation of the Act. Protection of the right of employees to exercise their rights under Section 7 is enhanced when supervisors can freely, without fear of demotion or discharge, voice opposition to unfair labor practices. As previously held, the Respondent committed an unfair labor practice by discharging Bonnie Beltramo on 6 January 1984 because she had engaged in a protected concerted activity (the preparation and distribution of the fake newsletter). The Respondent committed a second unfair labor practice on 7 February 1984, when it discharged Bonnie Beltramo for the second time, for the same reason. The reason advanced by Respondent for discharging Bonnie Beltramo on the second occasion was a pretext, intended to conceal its real motive, which was to complete what it had unsuccessfully tried to do on 6 January 1984, when it discharged Bonnie Beltramo, only to have its own appeals board change the discharge to a 30-day suspension and reinstatement. There is ample evidence that Evelyn Bach, who was Bonnie Beltramo's immediate supervisor, did not support either discharge of Bonnie Behramo, and that her oppo- sition was well known to both Respondent's executive director, Jack H. Whitlow, and its director of nursing, Rita Mahon, who made the decision to demote Bach on 8 February 1984, 1 day after Bonnie Beltramo was dis- charged for the second time. Bach openly stated her op- position to Mahon in January 1984, and sought Mahon's permission to appear as a witness for Emilie Beltramo in the latter's first appeals board hearing in January. Both Executive Director Whitlow and Mahon admonished Bach that it was her duty to support management's deci- sion, and, although Mahon did not tell Bach she could not be a witness for Bonnie Beltramo, Mahon's disap- proval of the idea was clearly conveyed to Bach. As late as the evening of 7 February 1984, a short time before Executive Director Whitlow ordered Bach to contact Bonnie Beltramo and tell her she was again discharged, Rita Mahon again clearly communicated to Bach that she was expected to support management's position with regard to Bonnie 13eltramo.21 21 According to Mahon's written summary of the meeting, she talked to Bach about her participation in a luncheon welcoming Bonnie Bel- Continued 462 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The timing of the demotion of Bach on 9 February 1984, a decision that Mahon, by her own admission, made on 8 February 1984, the day after the second dis- charge of Bonnie Beltramo, coupled with the disapproval by Executive Director Whitlow and Mahon of Bach's support for Bonnie Beltramo, strongly suggests that the demotion of Bach and the discharge of Bonnie Beltramo were linked. The inference can be reasonably drawn from this linkage that in demoting Bach on 9 February, Respondent's agent, Rita Mahon, was motivated by Bach's refusal to support the unfair labor practices that Respondent committed against Bonnie Beltramo. Reinforcing that inference are the circumstances of Bach's termination some 2 weeks later, which point to the conclusion that although Bach was only demoted on 9 February 1986 it was Mahon's intention even then to discharge her. At the time she was informed of her de- motion to staff nurse on 9 February 1984, Bach was told by Mahon that her job was in jeopardy, but that the de- cision would not be made until after a 30-day evaluation to be conducted by Judy Cunard, who would be taking over Bach's supervisory responsibilities at the Oxford Health Care Center. Instead of waiting for the 30-day evaluation to be completed, Mahon discharged Evelyn Bach on 23 February 1984. Mahon had already made a "rather firm" decision to discharge Bach by the time she received Judy Canard's oral report on 23 February 1984. It is clear that it was never Mahon's intention to do oth- erwise. I find that the reasons given by Mahon for discharging Bach on 23 February 1984 are a mere pretext. The offi- cially stated reason was unsatisfactory work perform- ance; in ,elaborating on her reasons, however, Mahon mentioned employee concerns, product liability, and timecards. It is clear from the record, that the latter two factors were brought by Judy Cunard to Mahon's atten- tion after she had "rather firmly" decided to discharge Bach, and thus were not a substantial factor in either Bach's demotion or discharge. Further, the first factor was disparately used as a basis for action against Bach. There is ample evidence in the record to suggest that the staff at the Oxford Health Care Center was divided by factionalism, and that some members of the staff, in- cluding Bonnie Beltramo, made a regular practice of playing practical jokes on each other, and perhaps on other staff members who did not want to be involved, as well. The situation at the Oxford Health Care Center, in fact, was somewhat reminiscent of the television series, "MASH," except that arguably much of what went on was neither humorous nor in good taste. But, whatever took place at the Oxford Health Care Center during the 2-year period after it opened, until the discharge of Evelyn Bach, it is open to considerable question just how much Rita Mahon knew about what had taken place. In fact, the evidence suggests that she knew relatively little, that what she did know was one- sided, and that she made no effort to conduct a thorough tramo back to work following her 30-day suspension, and "reinforced the premise" that Bach was expected to support management's position and present a "united front" In the summary, Mahon noted that she was con- cerned about Bach's lack of support of the hospital administration. or impartial investigation before she took action against Evelyn Bach, ostensibly because she had allowed the staff she supervised to engage in inappropriate behavior. One argument is that had Respondent's management known what was going on at the Oxford Health Care Center sooner, it would have acted sooner to put a stop to it. The fallacy of that line of argument is that the record unequivocally shows that Respondent's manage- ment knew all along what was going on, and condoned it. There is ample evidence that Jack Cruikshank, the ad- ministrator of the Oxford Health Care Center until Octo- ber 1983, who was Evelyn Bach's immediate supervisor, was well aware of the situation at the Center, but, for his own reasons, chose to do nothing about it. Further, it is equally clear that the practical jokers were not limited to the nursing staff, but also included physicians, among them, it appears, the supervising physician. Again it ap- pears that nothing was done to put a stop to objection- able behavior, in this instance through the medical staff channel. Clearly, the official who must bear ultimate responsi- bility for allowing mistreatment of employees and objec- tionable conduct by some employees at the Oxford Health Care Center is the administrator of the center, Jack Cruikshank, who had responsibility for its day-to- day management. 22 There is no indication in the record, however, that any type of disciplinary action was con- templated or taken against him. The treatment of Evelyn Bach was clearly disparate, compared with that of Jack Cruikshank, who was not disciplined at all. I fmd from the evidence that Evelyn Bach was made a scapegoat for poor management of the Oxford Health Care Center. Under the circumstances, I fmd Mahon's claim -that she demoted then discharged Evelyn Bach because the latter had allowed the mistreatment of professionals to be incredible. Had Mahon, or anyone else in Respondent's management, wanted to impose discipline for such a reason, the logical and appropriate inquiry for the pur- pose of fixing responsibility would have included Patrick Lamberti, and Jack Cruikshank, not just Evelyn Bach, who was only the first line supervisor, and at that, not the pupervisor of all involved. Discipline of Evelyn Bach, alone, would have been appropriate only if it could be fairly said that neither Jack Cruikshank nor Pat- rick Lamberti bore any responsibility for poor manage- ment at the Center. That cannot be said to have been the situation here. Moreover, there was, of course, no such inquiry in this case; in fact, Mahon apparently did not even' contact Jack Cruikshank, whom she knew tod be Evelyn Bach's immediate supervisor, to find out from him what he knew about what had taken place at the Center. Obviously, Mahon was not willing, nor probably even in a position to challenge Patrick Lamberti. The allegation of mistreatment of professionals at the Oxford Health Care Center was nothing more than a pretext, a convenient excuse for Mahon to demote rather than discharge Bach, because the latter had not support- ed the Respondent's efforts to get rid of Bonnie Bel- , 2 2 Arguably, Patrick Lamberd must also bear a measure of responsibil- ity because he oversaw operation of both of Respondent's health care centers. PONTIAC OSTEOPATHIC HOSPITAL 463 tramo. The other categories of reasons cited by Mahon for discharging Bach are trivial, or arose after the deci- sion to discharge had already been made. They, too, are clearly pretextual. Finally, Bach's second discharge was not for good cause. It provides no legal impediment to Bach's rein- statement. Bach would not have found herself to be a probationary employee in a retraining program had Re- spondent not unlawfully discharged her in the first place. Uncooperative though she may have been in carrying out the training program, her conduct was not egregious, and Respondent cannot rely on it as grounds to escape the consequences of its unfair labor practice. C. Sharon McKay Respondent did not cormnit an unfair labor practice by suspending Sharon McKay for 5 days because she left the Oxford Health Care Center building on 3 May 1984 without permission before her work shift had been com- pleted; or, by counseling her on work performance on 14 May 1984. I find that there is no link between Charging Party Sharon McKay's protected concerted activities on 31 December 1983 (participation in preparation of the fake newsletter) and the 5-day suspension that she received from her employer on 7 May 1984. The suspension was imposed for an incident that occurred on 3 May 1984. It was remote in time to McKay's protected concerted ac- tivities. The disciplinary action was imposed for good cause, and was not so disparate as to support the infer- ence that McKay was actually being punished for some- thing else. In arguing that Respondent suspended Sharon McKay in retaliation for her protected concerted activities, the General Counsel takes particular notice that McKay ad- mitted her activities to Rita Mahon in January 1984, and that Mahon said she would have disciplined McKay if she had known earlier. The General Counsel contends that the suspension imposed on McKay, because she left the Oxford Health Care Center in a panic, without tell- ing her supervisor, after receiving notice from her young son's school that he was missing, was "unusually draco- nian" compared with the punishment previously imposed on other employees for similar infractions. And, the Gen- eral Counsel says, McKay was told by Robert Rood, Re- spondent's employee advocate, that her suspension was obviously a set-up job. Finally, the General Counsel argues that the counseling record that McKay received on 14 May 1984 was disciplinary in nature and also in retaliation for her protected concerted activities. Respondent, for its part, contends that the suspension was warranted and appropriate, and did not constitute disparate treatment. There is no dispute that McKay left her job without authorization on 3 May 1984, conduct that Respondent states constitutes grounds for discharge in the hospital's employee handbook. Instead, McKay re- ceived only a 5-day suspension, a punishment that Re- spondent denies was disparate or was imposed because of her involvement with the fake newsletter. Finally, Re- spondent argues that the counseling record given to McKay on 14 May 1984 was not disciplinary in nature. The facts surrounding the incident that led up to McKay's 5-day suspension are not seriously in dispute. Sharon McKay acknowledged that she was working the day shift, from 7 a.m. to 3:30 p.m., on 3 May 1984, and that she left the Oxford Health Care Center a few min- utes after 3 p.m., without telling her supervisor, Judy Cunard. Her actions, McKay testified, were prompted by a telephone call that she received from the secretary at her son's school, in which she learned that he and an- other little boy were missing from the school. McKay stated that she went to the nurses' station, picked up her purse, but left wihtout her coat and paycheck, and, as she was leaving, told one of the nurses, Shelley Austin, to tell her husband, who had called by telephone, that she was leaving for the school." McKay went on to tes- tify that her son had been found by the time she arrived at the school, and that later, about 5:30 p.m., after taking her son home, she returned to the Oxford Health Care Center, where she picked up her coat and paycheck. She did not see or talk to Judy Cunard on this later occasion. On 4 May 1984, a scheduled day off for McKay, she re- ceived a telephone call from Judy Gardner who told her she had been suspended and that she was to report to Rita Mahon's office on 7 May 1984. Sharon McKay said that she reported to Mahon's office in the main hospital on 7 May 1984, as directed, accompanied by Robert Rood, the Respondent's employ- ee advocate. She explained the circumstances of her ab- sence to Mahon. Mahon stated that the punishment would be a 5-day suspension. Sharon McKay and Robert Rood were unsuccessful in persuading Mahon to reduce the suspension to 2 days. Judy Cunard testified that she was in the Oxford Health Care Center during the afternoon of 3 May 1984, and that at approximately 3:05 p.m., she learned that Sharon McKay had left the Center. She said that after waiting until the next day without taking any action, to give Sharon McKay a chance to call, she contacted Rita Mahon and reported the incident. Although she wanted to terminate Sharon McKay, she agreed with Rita Mahon's decision that McKay would be suspended. Cunard stated that she left on vacation later on 4 May 1984, and had no further involvement in the incident until she returned, when she signed a written second rep- rimand with a 5-day suspension. Cunard stated that she had not seen the fake newsletter, or talked to Rita Mahon about it, and she did not know of Sharon McKay's involvement in preparing a document critical of the hospital. Judy Cunard stated that she counseled Sharon McKay on 14 May 1984 concerning the latter's job responsibil- ities, and made a written record of the counseling. She denied that the counseling record was disciplinary in nature. The counseling concerned two assignments that Sharon McKay had either failed to complete or had per- formed incorrectly, and a complaint by a child-patient's 23 McKay testified that she believed that a registered nurse, such as Shelley Austin, was in charge in Judy Cunard's absence. McKay did not claim, however, that she made any effort to locate Judy Cunard before leaving the Center, or that she asked for or received permission from Shelley Austin to leave. 464 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD mother. According to Cunard, one incident involved McKay's failure on 3 May 1984 to complete an assign- ment to put away medical supplies that had been deliv- ered. Cunard said the stock was in boxes that were not heavy; Cunard said she carried them from the laboratory to the office herself. The second incident involved an im- properly prepared blood sample that McKay had drawn on 4 May 1984 and sent to the main hospital for analysis. (The third incident, which also allegedly occurred on 4 May 1984, involved a complaint by a child-patient's mother that McKay had seemed irritated when asked to clarify a discrepancy between instructions given by the physician and those given by McKay.) According to Cunard, she wrote the counseling form as she spoke to Sharon McKay. Rita Mahon stated that she was contacted by Judy Cunard on 3 May 1984 about Sharon McKay's absence, and that she directed Cunard to document the incident. (Judy Cunard prepared a written summary of the inci- dent bearing the date May 3, 1984. Mahon said she re- ceived it on 4 May 1986.) On the same day, Mahon spoke to Shelley Austin about the incident, and asked her to make a written report. (Shelley Austin's report is dated May 7, 1984; it is date-stamped May 8, 1984). Mahon stated that she received Shelley Austin's report before imposing punishment on Sharon McKay and relied heavily on it in deciding what punishment was ap- propriate;24 but as Sharon McKay already had a second written reprimand with a 3-day suspension in her file, the next step was a second written reprimand with a 5-day suspension. According to Mahon, the latter was the least amount of punishment she could give; the maximum was termination. Mahon said that she chose the written repri- mand with 5-day suspension after talking with Judy Cunard and Marilyn Floyd, the associate director of nursing (Mahon's assistant). According to Mahon, the employee handbook requires employees to get permission when leaving for personal reasons, and to punch out (on the timeclock) when they leave. Sharon McKay did nei- ther, and admitted she had not told anyone she was leav- ing. Mahon stated that she told Sharon McKay a third reprimand would result in her termination. Mahon denied that the fake newsletter had anything to do with the discipline that she gave to Sharon McKay. There is testimony in the record of trial indicating that no discipline, or discipline of lesser nature, was imposed on other employees who left work without permission or failed to report to work as scheduled. Factually, most similar was a 1982 incident involving nurse Shelley Austin, who left the Oxford Health Care Center without permission before her shift ended because she thought 24 There is a conflict between Mahon's testimony and that of Judy Cunard concernmg when the latter reported Sharon McKay's absence to Mahon. Mahon testified it was on 3 May 1984; Judy Cunard said it was the next day, 4 May 1984. There is a further conflict involved in Rita Mahon's testimony that she received Shelley Austin's written report before disciplining Sharon McKay on 7 May 1984. The report is dated 7 May 1984, but date-stamped 8 May 1984. I do not regard these conflicts as matenal, considenng the tune that has elapsed since the incident. It is clear that Mahon learned of the incident from Judy Cunard, and talked to Shelley Austin before imposing punishment on Sharon McKay on 7 May 1984. Based on the evidence, I conclude that Judy Cunard first con- tacted Rita Mahon on 3 May 1984, as Rita Mahon testified her child was having a seizure. In that instance, Charg- ing Party Evelyn Bach, who was Shelley Austin's super- visor, imposed no discipline. In another incident, Renee Hammond, an employee at the Oxford Health Care Center, also supervised by Charging Party Evelyn Bach, was docked pay for the time she was gone from work without permission to attend a party. The third, and most recent, incident involved Charlene Jaranko, a clini- cal staff nurse at the Oxford Health Care Center, who was not disciplined by Judy Cunard for failing to report for work one day as scheduled. By way of explanation, Charlene Jaranko stated that she had misunderstood the schedule, and believed that she was not assigned to work on the day in question. Respondent's employee handbook provides, in the sec- tion entitled, "Dismissal," that an employee may be dis- missed for just cause for "Weaving work area without permission. . . ." It is, of course, understandable that Sharon McKay would have been upset, perhaps even to the point of panic, at the alarming news that her son was missing from his school. On the other hand, however, her actions at the time did not show that she was so panicked as to be incapable of rational behavior. She, in fact, had the presence of mind to go to the nurses' station, retrieve her purse, and give nurse Shelley Austin a message to relay to McKay's husband, who had called on the telephone. It would have taken only seconds more for McKay to have given Austin a description of what was wrong and to ask her to relay a message to Judy Cunard. Further, even giving McKay the benefit of the doubt, and attrib- uting to stress her failure to take any steps at all at that time to notify her supervisor of her need to leave, there is no persuasive reason that explains away her failure to at least attempt to contact her supervisor, Judy Cunard, once the crisis had been resolved, to explain her behav- ior. Indeed, it appears that she made no such attempt, either later that day when she returned to the Oxford Health Care Center to pick up her coat and paycheck, or even the next day, by means of a simple telephone call. Thus, while I fmd that there were obviously mitigating circumstances, I further find that they were not so com- pelling as to completely excuse Sharon McKay's behav- ior. Characteristic of what the record rather clearly points out to be her style of management, Mahon imposed a harsh punishment on McKay, apparently as an example to deter others from similar conduct, without giving much, if any, weight to any mitigating circumstances in McKay's case. Indeed, it appears that Mahon had al- ready made up her mind what she was going to do before she ever gave McKay a chance to explain her conduct. But, Mahon denied any link to the fake news- letter, which is consistent with her statement to Sharon McKay in January 1984 that she did not intend to disci- pline her for being a coauthor of the newsletter. But, while I find that the disciplinary action selected by Mahon was harsh, under the circumstances, I do no find that it was so harsh, as a matter of law, as to be prima facie proof of discriminatory intent. The employee handbook clearly lists leaving the work area without per- PONTIAC OSTEOPATHIC HOSPITAL 465 mission as cause for dismissal, and under that provision, Mahon could have imposed dismissal, an even harsher punishment than the 5-day suspension that she did impose. That Mahon may arguably be authoritarian, un- sympathetic, and inflexible in her management philoso- phy does not amount to a violation of the National Labor Relations Act. Missing from the record of trial is evidence of any other factors that, considered with the harsh nature of the punishment imposed on McKay, might link that pun- ishment to the protected concerted activities in which she had engaged some 4 months earlier. While not so remote in time as to preclude the possi- bility that the 5-day suspension imposed on 7 May 1984 was actually in retaliation for McKay's protected con- certed activities on 31 December 1983, neither is the sus- pension so proximate as to give rise, standing alone, to that possibility. It is certainly inferrable that if the Re- spondent was looking for a trumped up excuse to retali- ate against McKay, it could have found one in less than 4 months. Under the particular circumstances of this case, I find the timing of the 5-day suspension to be a neutral factor, neither tending to prove nor disprove a link to MclCay's protected concerted activities. While I have already concluded that the 5-day suspen- sion was harsh, although not as harsh a punishment as might have been imposed, I do not find that it was dis- parately harsh. The three incidents of record that might be said to show disparate treatment, actually involved different supervisors, each acting independently, so far as it can be ascertained, according to their perceptions and management philosophies. Any lack of uniformity in how employees in similar circumstances were treated, even assuming, for the moment, that the circumstances were similar, can be attributed to the fact that different supervisors, acting without guidance from written disci- plinary standards, made the disciplinary decisions at dif- ferent times. I detect no substantial evidence of any es- tablished patterns of discipline from which Mahon devi- ated in imposing the 5-day suspension on Sharon McKay. Accordingly, I find the claim of disparate treat- ment to be unsupported. I do not agree that proof of the missing link between the 5-day suspension and Sharon McKay's protected concerted activities is supplied by the statements made by Employee Advocate Robert Rood to Sharon McKay, to the effect that her suspension was a set up. While, Rood must be considered as an agent of management be- cause of commingling of his managerial and employee representation duties, there is no evidence that he was part of an overt effort by management to rig the out- come of appeals board proceedings, or that other manag- ers confided to him their true intentions in imposing dis- cipline in this or any other case. As will be discussed more thoroughly later, the defect in the employee advo- cate concept, as applied in Respondent's system, is more subtle; the person holding the position of employee advo- cate is primarly a manager and lacks true independence as an advocate or representative of employees. I find no evidence that Rita Mahon had confided to Rood her in- tentions in punishing Sharon McKay, or that his alleged statement that the suspension was a set-up was anything more than speculation on his part, his opinion based on the facts as he saw them As that speculation is not cor- roborated by any other evidence, I give no weight to his opinion. Finally, I do not find that the counseling record given to Sharon McKay on 14 May 1984 by Judy Cunard was disciplinary in nature, or constituted an unfair labor prac- tice. There is no evidence that a counseling record (or session) is part of a disciplinary system maintained by Respondent. Sharon McKay does not deny the events that form the basis of the counseling record; she does dispute how they should be interpreted, and she denies that the criticism of her was fair. Judy Cunard, her su- pervisor, appears to be of a different opinion. Wherever the equities may lie, however, there is no evidence tying Judy Cunard to the fake newsletter incident. The Gener- al Counsel has failed to make even a prima facie showing that Judy Cunard acted in this instance in retaliation for Sharon McKay's protected concerted activities. D. Unlawful Work Rules Respondent committed unfair labor practices by main- taining work rules that violate Section 8(aX1) of the Act. There is no dispute that Respondent maintains the two work rules in question in its Employee Handbook. As they appear in the Employee Handbook, the two work rules are: CONFIDENTIAL INFORMATION Hospital affairs, patient information, and employ- ee problems are absolutely confidential and will not be discussed. Violation of this prohibition may be cause for immediate dismissal. SOLICITATIONS Outside agencies and charitable organizations are not permitted to solicit employees without the ap- proval of the Executive Director. No individual is permitted to solicit funds for any purpose on the Hospital premises without the ap- proval of the Executive Director. The solicitation rule is obviously overly broad in vio- lation of Section 8(a)(1), because employees may reason- ably construe it to prohibit them from engaging in per- missible union solicitation. J. C. Penney Co., 266 NLRB 1223, 1224-122 (1983). As stated by the Board in J. C Penney Co., supra, 266 NLRB at 1224; "It is well settled that restrictions on union solicitation in nonworking areas during nonworking time are presumptively in- valid." In that case, the Board refused to dismiss the complaint because any violations of the Act based on the rule was de minimis, noting at 266 NLRB 1224 that: "[The mere niaintenance of such a rule serves to inhibit employees from engaging in otherwise protected organi- zational activity, and, therefore, the absence of evidence of enforcement of a rule does not preclude the finding of a violation or the issuance of a remedial order." Similarly overly broad, because it is indiscriminate in its application, is Respondent's confidential information 466 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD rule. That rule bans, among other things, discussion of hospital affairs and employee problems. As argued by the General Counsel, that ban could reasonably be construed by employees to preclude discussing information con- cerning terms and conditions of employment, including wages, which, could fall under the broad categories of hospital affairs and employee problems. While Respond- ent might have a substantial and legitimate interest in limiting or prohibiting discussion of some aspects of its affairs, or of its employees' personal problems, and cer- tainly of patient information, it has offered no justifica- tion for the broad policy stated in its confidential infor- mation rule. In Waco, Inc., 273 NLRB 746, 748 (1984), the Board held that a rule prohibiting employees from discussing their wages violated Section 8(a)(1) of the Act. In its decision in that case, the Board stated: In the instant case, however, unlike IBM, supra, the Respondent forbade its employees to discuss their own wages among themselves. Further, it did so without establishing a substantial and legitimate business justification for its policy; indeed, the Re- spondent offers no argument whatsoever that justifi- cation exists, relying instead, as did the judge, on the lack of any showing that any employee felt in- hibited by the Respondent's rule. In assessing the lawfulness of the Respondent's rule, we are not concerned with the subjective impact of the rule on particular employees. Instead, we must determine whether the rule reasonably tended to coerce employees in the exercise of their Section 7 rights, and, if so, whether the employees' Section 7 rights are outweighed by any legitimate and substantial business justification for the rule. There can be little question that the Respondent's rule prohibiting employees from discussing their wages constitutes a clear restraint on employees' Section 7 right to engage in concerted activities for mutual aid and protection concerning an undeniably significant term of employment. Because the Re- spondent has failed to establish any business justifi- cation for this restraint, it follows that its rule is un- lawful. In its brief, Respondent indicates a willingness to adopt alternative handbook provisions to resolve any concern over the current provisions, and offers to stipu- late to a decision or order requiring substitution of cer- tain replacement language, which it has suggested for the existing language. I decline to give an advisory opinion on the lawfulness or adequacy of Respondent's proposed revisions. Until there is a controversy concerning them, there is no issue concerning them before me. I note in passing, however, that it would appear to be reasonable for the General Counsel to explore Respondent's offer, with a view towards settlement of the existing issue. E. Deferral Deferral by the National Labor Relations Board to the decisions of Respondent's appeals board is inappropriate. The Respondent's appeals board system was developed and implemented at the direction of Respondent's execu- tive director, Jack H. Whitlow, who testified that it was his idea. The rules for appeals board proceedings were written by a committee composed of management repre- sentatives and volunteers selected by management from the Employee Council, an internal hospital advisory body composed of elected employee representatives. Ex- ecutive Director Whitlow, while acknowledging that he might have reviewed the rules written by the committee, stated that he did not recall making any changes, and that he made it clear that the hospital would not over- turn or reject decisions of the appeals board. The categories of Respondent's employees granted access to the appeals board had not, and still have not, chosen an exclusive bargaining agent to represent them, and there was no collective-bargaining agreement cover- ing them in existence at the time Respondent implement- ed the appeals board system, nor is there one now. The employees never elected representatives to the employee council for the purpose of negotiating a collective-bar- gaining agreement with management, nor did they vote to authorize the elected representatives to the employee council to negotiate a method for settlement of griev- ances. Once management had approved the appeals board rules drafted by the committee it had organized, manage- ment unilaterally implemented the appeals board system. Neither the concept of an appeals board nor the proce- dural rules that had been drafted and approved by man- agement were submitted to the employees for a vote of approval or disapproval. Whatever else the appeals board system may be, it is not an agreed-on method between this Employer and its employees for dispute resolution. It is not a grievance procedure established by contract. It was created and im- plemented unilaterally by Respondent. The employees did not voluntarily elect to become parties to a collec- tive-bargaining agreement containing this or any other form of dispute resolution machinery. The National Labor Relations Board had occasion in two recent cases to set out its standard for deferring to arbitration awards.25 In United Technologies Corp., 268 NLRB 557 (1984), the Board made it clear that deferral is appropriate only to the grievance-arbitration provi- sions of a collective-bargaining , agreement. The Board said at 559: It is fundamental to the concept of collective bar- gaining that the parties to a collective-bargaining agreement are bound by the terms of their contract. Where an employer and a union have voluntarily elected to create dispute resolution machinery cul- minating in final and binding arbitration, it is con- trary to the basic principles of the Act for the Board to jump into the fray prior to an honest at- tempt by the parties to resolve their disputes 25 At least one U.S. Court of Appeals is of the view that the Board's current standard gives away too much and cloys not sufficiently protect employee's rights granted by the Act. Taylor v. NLRB, 786 F.2d 1516 (11th Cir. 1986). In view of my fmding that deferral is inappropriate under the Board's standards, it is unnecessary to consider the implications of the 11th Circuit's decision. PONTIAC OSTEOPATHIC HOSPITAL 467 through that machinery. For dispute resolution under the grievance-arbitration process is as much a part of collective bargaining as the act of negotiat- ing the contract. In our view, the statutory purpose of encouraging the practices and procedure of col- lective bargaining is ill-served by permitting the parties to ignore their agreement and to petition this Board in the first instance for remedial relief. In Olin Corp., 268 NLRB 573 (1984), another case in which the issue was deferral to arbitration under a col- lective-bargaining agreement, the Board again made it clear that deferral to arbitration is appropriate only where the parties have agreed to be bound. The Board said at 573-574: In its seminal decision in Spielberg,26 the Board held that it would defer to an arbitration award where the proceedings appear to have been fair and regu- lar, all parties have agreed to be bound, and the deci- sion of the arbitrator is not clearly repugnant to the purposes and policies of the Act. Accordingly, we adopt the following standard for deferral to arbitra- tion awards. We would find that an arbitrator has adequately considered the unfair labor practice if (1) the contractual issue is factually parallel to the unfair labor practice issue, and (2) the arbitrator was presented generally with the facts relevant to resolving the unfair labor practices. In this respect, differences, if any between the contractual and statu- tory standards of review should be weighed by the Board as part of its determination under the Spiel- berg standard of whether an award is "clearly re- pugnant" to the Act. [Emphasis added.] As there is no collective-bargaining agreement in this case and the appeals board procedure, even if analogized to arbitratiOn, is not contained in a contract to which all parties have agreed to be bound, deferral is clearly inap- propriate. In light of my finding that deferral is inappropriate as a matter of law, because all the parties did not agree to be bound, it is unnecessary to reach the issue of whether the other Spielberg and Olin standards have been met. However, in passing, I find it highly unlikely that pro- ceedings before the appeals board can be considered to be fair and regular, in view of the fact that employees appearing before the appeals board are limited to repre- sentation by Respondent's employee advocate. Respond- ent's current employee advocate is Robert Rood. His principal job is director of security, clearly a manage- ment position; the function of the employee advocate is merely an added responsibility. Rood's good intentions notwithstanding, his loyalties are divided and the poten- tial for conflict of interest is obvious. In any event, the right to choose one's own counsel is so deeply imbedded in our system of law that it hardly requires further com- ment. A system of adjudicating disputes that arbitrarily denies that right of free choice does not meet basic due process standards. Thus, it appears that Respondent's ap- 26 Spidberg Mfg. Co., 112 NLRB 1080 (1955). peals board system is fatally flawed, for that reason, if no other. F. Reinstatement and Backpay Remedy Respondent has failed to show good cause why rein- statement with backpay should not be ordered in the case of Charging Parties Bonnie BeWain° and Evelyn Bach. As noted earlier, pursuant to Section 10(c) of the Act, the Board normally orders reisntatement with backpay of an employee discharged for engaging in protected con- certed activities, together with a cease-and-desist order proscribing similar misconduct in the future. Respondent, however, urges that the normal remedy is inappropriate in this case, because Charging Parties Bel- tramo and Bach do not deserve reinstatement or back- pay. According to Respondent, reinstatement of the two Charging Parties and award of backpay would be con- trary to the purpose of the Act, because their actions as employees of Respondent had a negative effect on inter- state commerce. There is no merit to Respondent's contention. The Board is not in the business of making subjective judg- ments as to who deserves reinstatement and who does not. For a variety of reasons, Respondent now concludes that Charging Parties Bonnie Beltramo and Evelyn Bach were less than satisfactory employees before they were first discharged. Their misconduct, if that is what it was, however, was not a factor in their discharges. They were discharged for reasons that violated the Act; not for cause. Respondent cannot escape the consequences of its illegal actions by arguing, in effect, that if it knew then what it knows now, it would have discharged them for causer and, therefore, should not be required to take them back now. In any event, the activities of Bonnie Beltramo and Evelyn Bach, about which Respondent now complains, were not egregious and caused no demonstrable harm to Respondent's business of reputation in the community. The real problem at the Oxford Health Care Center was lack of adequate supervision, and in that regard Re- spondent does not have clean hands. Bonnie Beltramo may have created problems by her persistent tendency to perpetrate practical jokes on her coworkers, some of which may well have been in very poor taste. Evelyn Bach, in turn, may have failed to exercise sufficient su- pervisory control over Bonnie BeWarn°. But, by the same token, the same criticism can be leveled at Re- spondent's Oxford Health Care Center Administrator, Jack Cruikshanlc, who was Evelyn finch's immediate su- pervisor and had day-to-day responsibility for operation of the Center To single out Bonnie Beltramo and Evelyn Bach for punishment in the form of loss of their jobs, without imposing any form of punishment on Jack Cruikshank, is patently unfair. Respondent cannot use the Board's processes to make scapegoats out of Bonnie Beltramo and Evelyn Bach for obvious shortcomings in Respondent's higher management structure. 468 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1.Pontiac Osteopathic Hospital, the Respondent, is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. By discharging its employee, Bonnie Beltramo, on 6 January 1984, and again on 7 February 1984, because she had engaged in protected concerted activities under Sec- tion 7 of the Act, Respondent committed unfair labor practices in violation of Section 8(a)(1) of the Act. 3. By demoting its employees, Evelyn Bach, on 9 Feb- ruary 1984, then discharging her on 23 February 1984 and again on 22 March 1984, because she had refused to support Respondent's unfair labor practices, Respondent committed unfair labor practices in violation of Section 8(aX1) of the Act. 4. By maintaining work rules that prohibit employees from soliciting funds for any purpose on Respondent's property without Respondent's approval, and from dis- cussing employee problems among themselves, Respond- ent committed and is continuing to commit unfair labor practices in violation of Section 8(a)(1) of the Act. 5. The allegations in the complaint that Respondent committed unfair labor practices in violation of Section 8(aX1) of the Act by suspending its employees, Sharon McKay, for 5 days on 7 May 1984, and issuing her an unfavorable counseling record on 14 May 1984, have not been proved. 6.The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY Having found that Respondent unlawfully interfered with, restrained, and coerced its employees in the exer- cise of their Section 7 rights, I fmd it appropriate to order Respondent to cease and desist therefrom and to take certain affirmative action to effectuate the policies of the Act. Respondent, having engaged in unfair labor practices in violation of Section 8(aX1) of the Act, shall be or- dered to cease and desist from engaging in these unfair labor practices. Respondent shall offer Bonnie Beltramo and Evelyn Bach immediate and full reinstatement to their former positions, or if those positions no longer exist, to substan- tially equivalent positions, without prejudice to their se- niority or any other rights or privileges previously en- joyed, and make them whole for any loss of earnings and other benefits suffered as a result of the discrimination against them. Backpay shall be computed as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), with inter- est as prescribed in Florida Steel Corp., 231 NLRB 651 (1977). See generally Isis Plumbing Co., 138 NLRB 716 (1962). On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed27 27 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. ORDER The Respondent, Pontiac Osteopathic Hospital, Ponti- ac, Michigan, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Discharging its employees because they exercised their rights guaranteed by Section 7 of the Act, and in order to discourage other employees from exercising their rights guaranteed by Section 7 of the Act. (b) Discharging its supervisory employees for refusing to support Respondent's unfair labor practices, in order to discourage its employees from exercising their rights guaranteed by Section 7 of the Act. (c) Maintaining in its employee handbook any rule that prohibits employees from soliciting funds for any pur- pose on Respondent's property without Respondent's ap- proval, or from discussing employee problems. (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 full and immediate reinstatement to their former positions to Bonnie Beltramo and Evelyn Bach, or if those jobs no longer exist, to substantially equiva- lent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed, and make them whole for any loss of earnings and other benefits suffered as a result of the discrimination against them, in the manner set forth in the remedy section of the deci- sion. (b)Rescind the rules in its employee handbook prohib- iting employees from soliciting funds for any purpose on its property without its approval, and from discussing employee problems. (c) Remove from its files any reference to the dis- charge of Bonnie Beltramo on 6 January and 7 February 1984, or the demotion and discharge of Evelyn Bach, on 9 and 23 February, and 22 March 1984, respectively, and advise them in writing that this has been done and that no evidence of these unlawful acts will be used as a basis for future personnel actions against them, (d) 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. (e) Post at its facilities in Pontiac, Michigan; Oxford, Michigan; and Milford, Michigan, and any other facilities operated by Respondent, copies of the attached notice marked "Appendix." 28 Copies of the notice, on forms provided by the Regional Director for Region 7, 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 cus- 22 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." PONTIAC OSTEOPATHIC HOSPITAL 469 tomarily posted. Reasonable steps shall be taken by the (0 Notify the Regional Director in writing within 20 Respondent to ensure that the notices are not altered, de- days from the date of this Order what steps the Re- faced, or covered by any other material. spondent has taken to comply.