Southern Maryland Hospital Center

SOUTHERN MARYLAND HOSPITAL 481 Southern Maryland Hospital Center and Office and Professional Employees International Union, Local 2, AFL-CIO. Cases 5-CA-17182 and 5- CA-17343 April 14, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS , JOHANSEN AND CRACRAFT On July 16, 1986, Administrative Law Judge Norman Zankel issued the attached decision. The Respondent filed exceptions and a supporting brief and the General Counsel filed a brief in response. The Respondent also filed a motion to dismiss or, in the alternative, to remand the proceedings for hearing de novo, and the General Counsel filed an opposition. 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 2 and 1 The Respondent excepts to the judge's refusal to grant its motion to strike the testimony of Linda Stein and Noreen Briley, who were em- ployed at times by the Respondent in supervisory capacities because counsel for the General Counsel failed to provide the Respondent's coun- sel prior notice of his plans to interview these individuals. Sec. 10056.5 of the General Counsel's Casehandling Manual indicates that it is normally the policy of the General Counsel when investigating unfair labor prac- tice charges to contact the charged party's counsel or representative prior to interviewing any supervisors or agents whose statements or ac- tions would bind the respondent, and afford the respondent's representa- tive an opportunity to be present during the interview. However, this practice does not extend to interviews of Amer supervisors because their statements would not constitute admissions against the respondent. See Rule 801(dX2)(D) of the F,ed.R,Evid. Accordingly, because the Respond- ent did not employ either Stem or Briley in a supervisory capacity at the time of their interviews, counsel for the General Counsel has not depart- ed from the General Counsel's casehandlmg guidelines. Further, the Board, in a similar setting involving the General Counsel's practice under Sec. 10056.5, has noted that there is no obligation to provide such notice when, as here, the individuals to be interviewed come forward voluntari- ly. Singer Co., 176 NLRB 1089, 1090 (1969), enfd. in pertinent part 429 F.2d 172 (8th Cir. 1970) In any event, the Respondent failed to offer any evidence that it was prejudiced by its failure to receive notice of the interviews. We therefore find that the judge properly denied the Re- spondent's motion to strike the testimony of Stem and Briley. Member Cracraft agrees that the judge was correct in Ins refusal to strike the testimony of former Supervisors Linda Stem and Noreen Briley In affirming the judge's ruling, however, she relies only on the fact that Briley and Stem came forward voluntarily to be interviewed. She further notes in agreement with her colleagues that the Respondent failed to come forward with any evidence that it was prejudiced by the lack of notice of the interviews The Respondent moves that the Board dismiss or in the alternative remand the proceeding for a new hearing before a different judge be- cause the judge relied, in part, in finding that the Respondent harbored union animus and in making certain credibility resolutions, on an earlier Board decision involving the Respondent which was denied enforcement in part by the Fourth Circuit Court of Appeals. Southern Maryland Hospi- tal Center, 276 NLRB 1349 (1985), enfd in part 801 F.2d 666 (4th Cir. 1986) We find no merit to the Respondent's argument and we deny the motion There is abundant evidence of union animus, both in findings that were upheld by the Fourth Circuit and in the record of the present case. Among what the court agreed were "numerous" violations of Sec. 8(a)(11 has decided to affirm the judge's rulings, findings,3 and conclusions as modified, to modify the remedy,4 and to adopt the recommended Order as modified. We agree with the judge's conclusion that the Respondent's reprimand of and failure and refusal to reinstate Donald Keller violated Section 8(a)(3). We initially note that Keller was an open and active union supporter during the 1984 organizing campaign. He was on the Union's organizing com- mittee, wore a union badge, distributed the Union's newsletter, solicited union authorization card signa- tures, and served as the Union's election observer. On Thursday, May 9, 1985, Director of Medical Records Diane Johnson issued to Keller a 1-day suspension and reprimand, allegedly for failing to adhere to a new work schedule that workweek. As the judge noted, the surrounding circumstances es- tablish that the reason stated for the reprimand was pretextual and that the reprimand constituted dis- was a threat by Dr. Francis Chiaramonte, the Respondent's chief execu- tive officer, to kill an employee because of his union activities. Nor is the judge's finding that the Respondent targeted union activists for discipline fatally compromised by his partial reliance on a discnminatory discipline finding in the prior case that was not upheld by the court The judge properly found strong evidence in the present proceeding to support Such a finding—in particular credited testimony of former Director of Nursing Noreen Briley, not contradicted by Dr. Cluaramonte, that Dr. Chiara- monte had directed the Respondent's department heads to get rid of the union organizers, and credited testimony by a former head nurse that of- ficials of the Respondent had admitted an intent to discharge discrimina- tees Kline and Keller because of their union activities. Finally, because, as noted, the Fourth Circuit ill fact enforced a number of findings indicative of union animus in the prior proceeding, the judge dad not err in taking that background Into account in assessing the credibility of testimony bearing on the Respondent's later conduct to- wards union supporters. 'The Respondent has excepted to some of the judge's credibility find- ings. The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. The Respondent specifically argues that we should overrule the judge's finding that former Assistant Director of Nursing Noreen Briley 'was a credible witness because she made certain derogatory remarks to Dr. Chiaramonte which allegedly establish her bias against the Respondent. The judge devoted considerable attention to Briley's credibility and ap- pears to have carefully examined all factors bearing on her credibility, including her demeanor and her comments to Dr, Chiaramonte Based on the testimony of the Respondent's executive vice president, Sebastian Sunani, whom the judge considered to be the most credible of the Re- spondent's witnesses, Bailey's comments were made in February 1985, many months before she left the Respondent's employ. Even assuming that the discredited testimony of the Respondent's director of nursing, Marie Palmquist, that Briley made her remarks during the month she left Respondent's employ, as correct, we find It insufficient to affect the judge's credibility resolution. In any event, Briley's most damaging testi- mony, regarding statements made by certain of the Respondent's supervi- sors, stands uncontradicted. 4 In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), interest on and after January 1, 1987, shall be computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 U S.C. § 6621 Interest on amounts accrued prior to January 1, 1987 (the effective date of the 1986 amendment to 26 U.S.C. § 6621), shall be computed in accordance with Florida Steel Corp., 231 NLRB 651 (1977). 288 NLRB No. 56 482 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD crimination based on Keller's union activities. Johnson conceded that during the preceding week she had given Keller the option to start the new schedule after returning from his 2-week vacation, which was scheduled to start on May 13. Johnson also conceded that when she issued Keller the rep- rimand she "wasn't sure what was going on" with respect to his exercise of this option. Johnson fur- ther conceded that when she realized on Tuesday, May 7, that Keller had not followed the new schedule at the beginning of the workweek on Monday, May 6, she did not inform Keller that he should not be working his prior schedule or direct him to work the new schedule, and she did not warn him that he might be in jeopardy if he did not follow the new schedule. On Friday, May 10, the effective date of his 1- day suspension, Keller submitted a written resigna- tion to Johnson, who attempted to dissuade Keller from resigning, even telling him that she would delay processing his resignation until he returned from vacation. Keller eventually did reconsider and notified Johnson on Sunday evening, May 12, that he wished to rescind his resignation. When Keller's immediate supervisor, Florence Moran, learned on ,Monday morning, May 13, of his re- quest to rescind his resignation, she told Keller that it was a "good idea." Later that afternoon, howev- er, Johnson informed Keller that his request to re- scind his resignation was denied. Johnson testified that she alone made the deci- sion not to accept Keller's rescission request. Her testimony is contradicted, however, by that of Ex- ecutive Vice President Suriani, who initially admit- ted that he was intimately involved with the deci- sion not to accept Keller's request to rescind his resignation. Suriani later changed his testimony to assert that he had no involvement whatsoever in the decision. Further, former Assistant Director of Nursing Briley credibly testified that Johnson ad- mitted to her that she had been told to get rid of Keller. Briley's testimony in this regard was not denied by Johnson. Moreover, Suriani conceded that the Respondent had previously agreed to rehire an employee who had resigned and that he knew of no management policy against rehiring employees who had previously resigned. There is no dispute that Keller was an exemplary employee. Accordingly, we agree with the judge that the evi- dence demonstrates that the Respondent simply seized on the fortuitous opportunity presented by Keller's resignation to rid itself of an active union supporter. Unlike the judge, however, we would not characterize the Respondent's discriminatory failure and refusal to reinstate Keller as a "con- structive discharge." See Pinter Bras., 227 NLRB 921, 939 (1977). We shall amend the judge's Con- clusions of Law and recommended Order accord- ingly. AMENDED CONCLUSION OF LAW Substitute the following for Conclusions of Law 4. "4. The Respondent discriminated against em- ployees in violation of Section 8(a)(3) and (1) of the Act by issuing a warning to and suspending Donald L. Keller on May 9, 1985, and by failing and refusing to reinstate Keller on May 13, 1985, all because he engaged in union activities." ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Southern Maryland Hospital Center, Clinton, Maryland, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraph 1(c). "(a) Discriminating against employees by dis- charging, suspending, reprimanding, issuing warn- ings, or failing and refusing to reinstate them be- cause they engage in union activities." 2. Substitute the following for paragraph 2(c). "(c) Remove from its files all reference to the discharges, suspensions, reprimands, warnings, and failure and refusal to reinstate found unlawful, and notify Kline and Keller, in writing, that this has been done and that evidence of the unlawful con- duct will not be used as a basis for future personnel actions against them." 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 SOUTHERN MARYLAND HOSPITAL 483 To choose not to engage in any of these protected concerted activities. WE WILL NOT discharge, suspend, reprimand, issue warnings to, or fail or refuse to reinstate any of our employees because they engage in union ac- tivity. WE WILL NOT in any other manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. .‘,VE WILL offer Carol A. Kline and Donald L. Keller immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to sub- stantially equivalent jobs, without prejudice to their seniority or other rights, privileges, and bene- fits; and WE WILL make each of them whole, with interest, for any loss of earnings they may have suf- fered as a result of our discrimination against them by their suspensions, warnings, reprimands, dis- charges or failure and refusal to reinstate them in March, April, and May 1985. WE WILL remove from our files all references to the unlawful suspensions, reprimands, warnings, discharges, and failure and refusal to reinstate issued in December 1984 and March, April, and May 1985, and WE WILL notify Carol A. Kline and Donald L. Keller in writing that this has been done and that evidence of that unlawful conduct will not be used as a basis for future personnel actions against either of them. SOUTHERN MARYLAND HOSPITAL CENTER Edward R. Noonan, Esq. and Steven E. Nail, Esq., for the General Counsel. Warren M Davidson, Esq. (Littler, Mendelson, Fastiff & Tichy) and Benjamin W. Hahn, Esq. (on the brief), of Baltimore, Maryland, for the Employer. Joseph E. Finley, Esq., of Baltimore, Maryland, for the Union. DECISION STATEMENT OF THE CASE NORMAN ZANKEL, Administrative Law Judge. These consolidated cases were tried be fore me on various dates between 5 September 1985 1 and 14 March 1986 in Wash- ington, D.C. The Union filed the charge in Case 5-CA-17182 on 15 April and in Case 5-CA-17343 on 1 July. A complaint issued on 12 June in Case 5-CA-17182, and on 3 Octo- All dates are in 1985 unless otherwise stated. The hearing in Case 5- CA-17182 opened on 5 September and was adjourned mdefinitely pend- ing subpoena enforcement proceedings. The complamt in Case 5-CA- 17343 issued dunng the adjournment. I granted a motion to consolidate the cases The hearing resumed, in its consolidated form, on 21 January 1986 ber in Case 5-CA-17343 Each complaint was amended at the hearing. In substance, the complaints allege that Southern Maryland Hospital Center (the Employer) discriminated against employees in violation of Section 8(a)(3) and (1) of the National Labor Relations Act (the Act) by prepar- ing (on 14 December 1984) and thereafter maintaining a written reprimand for its employee, Carol A. Kline, for alleged abuse of sick leave; by discharging Kline on 9 April; by reprimanding and suspending another of its em- ployees, Donald L. Keller on 9 May; and by terminating Keller's employment on 13 May by refusing to permit him to rescind his earlier resignation. The Employer filed timely answers to the complaints. The answers admitted some of the allegations, but denied that the Employer had committed any of the alleged unfair labor practices. All parties were provided an opportunity to present oral and documentary evidence, examine and cross-exam- ine witnesses, and make oral arguments. Posthearing briefs have been received from counsel for the General Counsel, the Employer, and the Union.2 On the entire record, including my observation of the demeanor of the witnesses, 3 and after due consideration of the briefs, I make the following FINDINGS AND CONCLUSIONS I. JURISDICTION Jurisdiction is admitted. The Employer, at all material times, has been a Maryland corporation. It maintains an office and place of business in Clinton, Maryland. There, it operates a full service general hospital that provides in- patient and outpatient medical and related professional care services to the general public. During the calendar year immediately preceding complaint issuance, the Em- ployer derived gross revenues exceeding $250,000. During the same period of time, the Employer purchased and received goods and materials in excess of $50,000 in value at its Clinton facility (the hospital) directly from points outside of Maryland. The Employer admits, the record reflects, and I find that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and a health care institution within the meaning of Section 2(14) of the Act. The parties agree, the record reflects, and I find the Union is and, at all material times, has been a labor orga- nization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Background The instant allegations emanate from the Union's ef- forts to organize certain of the Employer's personnel, in- cluding registered nurses and service and maintenance employees. The Union conducted two organizing cam- paigns. The first began in spring of 1981 and continued 2 The General Counsel's unopposed motion to correct p. 1484 of the official transcript is granted (see G C Br fn 3) 3 All witnesses were sequestered, except Kline and the Employer's ex- ecutive vice president, Sebastian Sunani. 484 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD to 11 June 1982. On that date, a representation election was conducted. The Union lost. Kline was an active and visible union supporter during the first union campaign. She was a member of the Union's organizing committee. Kline wore a green "or- ganizer" badge daily, solicited union authorization cards, and distributed copies of the Union's newsletter, the "Solid Rock," at both the entrance to the hospital and the entrance to the employee cafeteria. Kline served as the Union's election observer at the 11 June 1982 elec- tion. In November 1982 Administrative Law Judge Arline Pada conducted an unfair labor practice hearing in Cases 5-CA-14016 and 5-CA-14017. Those cases arose from charges filed by the Union on 25 January 1982. The cases involved allegations that the Employer engaged in unlawful conduct during the Union's 1981-1982 organiz- ing campaign. Kline testified in support of the allega- tions. Judge Pacht issued her decision (JD-170-83) on 22 April 1983. She found the Employer had committed sev- eral 8(a)(1) violations, and also discriminated against em- ployees, in volation of Section 8(a)(3), in certain respects. The Employer filed exceptions. The Board issued its De- cision and Order (276 NLRB 1349 (1985)). The Board af- firmed Judge Pacht in most respects. Specifically, the Board found the Employer violated Section 8(a)(1) of the Act by confiscating union materials from its employees; instituting an "Employee of Month" award to discourage support for the Union; unlawfully soliciting and remedying employee grievances; interfer- ing with Board processes by telling employees they need not comply with Board-issued subpoenas; informing em- ployees they did not receive a 1981 Christmas bonus be- cause they sought union representation; restricting em- ployees' access to union organizers during nonworking hours in nonpatient care areas of the hospital; threatening employees with discharge because of their union adher- ence; and threatening employees with bodily harm be- cause they were engaged in distributing union literature or other protected concerted activities. Also, the Board found that the Employer had discrimi- nated against employees in violation of Section 8(a)(3) by having issued counseling reports and reprimands to Patri- cia Vass in a disparate and discriminatory manner Vass was a member of the Union's organizing committee and a notorious union proponent. Finally, the Board affirmed Judge Pacht's finding that the Employer violated Section 8(a)(3) by withholding a bonus from its employees at the end of 1981. Presently, the Board's decision is pending before the U.S. Court of Appeals for the Fourth Circuit. The Union continued its organizing efforts after the 1982 election loss. Kline continued to serve as an orga- nizing committee member. She attended the committee's meetings, wore an organizing committee badge daily, dis- tributed the "Solid Rock" newsletter, and solicited em- ployee signatures on union authorization cards. Keller became active in union activities during the summer of 1983. He served as an organizing committee member, wore an organizing committee badge, solicited signatures on authorization cards, and distributed union literature two to four times per month at the hospital and cafeteria entrances. The Union's second campaign gave rise to additional unfair labor practice charges. The Union filed two charges: Case 5-CA-16186, on 16 February 1984 (amended 19 March 1984); and Case 5-CA-16315 on 12 April 1984 (amended 20 April 1984). Administrative Law Judge Marvin Roth conducted a hearing in February 1985 on a consolidated complaint in those cases. Judge Roth issued his decision on 20 June 1985. Those cases are presently pending before the Board on the Employ- er's exceptions.4 The Union's second campaign resulted in a Board-con- ducted election on 7 December 1984. Both Kline and Keller served as union observers at that election. The Union lost the election. As earlier stated, the first of the alleged unfair labor practices purportedly occurred on 14 December 1984 when a written reprimand was issued to Kline for al- leged sick leave abuse. The Employer's relevant supervisory hierarchy con- sists of the following persons. Dr. Francis P. Chiara- monte is chief executive officer and principal stockhold- er; Suriani is executive vice president; and Robert Chap- pell, director of personnel. In addition, there are supervi- sory personnel relevant to the separate issues involving Kline and Keller. As to Kline there were: Marie Palm- quist, director of nursing; Jacqueline Anderson, head nurse of Coronary Care Unit (CCU). Supervisors rele- vant to Keller are: Diane Johnson, director, of medical records; and Florence Moran, supervisor of utilization review and quality assurance. B. Credibility Resolution of virtually each substantive allegation on which testimony was presented turns on the witnesses' relative credibility. The record is replete with instances of witnesses for each litigant providing testimony in direct opposition to that presented by those of opposing litigants, I shall not discuss all these testimonial conflicts. That task would unduly lengthen this decision. On the other hand, I have not ignored all such testimony, nor arguments of counsel on it. Resolution of witness credibility frequently is a dif- ficult task. It has been complicated in this case by a plethora of variations among witnesses and numerous ar- guments regarding their use. In general, my credibility resolutions are based on my observation of witness demeanor, the weight of the re- spective evidence, established or admitted facts, and in- 4 The General Counsel proffered Judge Roth's decision (G.0 Exh 6) as evidence of the Employer's anti/mon ammus in the instant case. I re- jected that offer because decisions of the Board's administrative law judges have no precedent/al value unless affirmed by the Board itself See Superior Container, 276 NLRB 521 (1985). The General Counsel requests I reconsider the rejection of G.C. Exh 6 (see fn 8, G.C. Br.). On recon- sideration, I reaffirm the rejection of G.C. Exh 6 I do not rely on any of Judge Roth's findings and conclusions as substantive evidence of matters requiring proof in the instant case. Nonetheless, I grant the General Counsel's request to take "judicial notice" of Judge Roth's decision I have done so for the limited purpose of rendering a complete chronologi- cal account of relevant background events SOUTHERN MARYLAND HOSPITAL 485 herent probabilities and reasonable inferences that may be made from the record as a whole. Gold Standard En- terprises, 234 NLRB 618 (1978); V & W Castings, 231 NLRB 912 (1977); Northridge Knitting Mills, 223 NLRB 230 (1976). I have also considered the principle that testimony of current employees who testify against their employer's interests is not likely to be false. Shop-Rite Supermarket, 231 NLRB 500 (1977); Georgia Rug Mill, 131 NLRB 1304 fn. 2 (1965), modified on other grounds 308 F.2d 89 (5th Cir. 1962). I have applied the notion that a trier of fact need not discredit a witness simply because all that witness' testi- mony is not believed. "Nothing is more common than to believe some and not all of what a witness says." Ed- wards Transportation Co., 187 NLRB 3, 4 (1970), enfd. per curiam 437 F.2d 502 (5th Cir. 1971); Wilco Energy Corp., 246 NLRB 851 fn. 1 (1979). Finally, I have particularly reviewed and studied the situations that the Employer, in its brief, cites as adverse reflections on credibility of the General Counsel's wit- nesses. In general, I find the relevant testimony of the General Counsel's witnesses to be more reliable and trustworthy than that presented by the Employer's witnesses. My ob- servation of the demeanor of the General Counsel's wit- nesses persuades me each was striving to tell the truth as best he/she could. Each General Counsel witness ap- peared forthright, candid, and straightforward. In con- trast, the principal employer witnesses appeared hesitant, unsure, and anxious to depict circumstances in a light most favorable to the Employer and their personal inter- ests. More specific credibility resolutions appear below. The probity of witnesses impacts mostly on the Em- ployer's alleged antiunion motivation. The General Counsel contends the record contains direct evidence of such motivation. Part of that evidence consists of admis- sions purportedly made by the Employer's supervisory personnel to, or in the presence of, two individuals, Noreen Briley and Linda Stem,5 Briley worked for the Employer from 1977 until she resigned in May 1985. She held the positions of assistant director of nursing and clinical assistant director of nurs- ing. I found Briley an extremely impressive witness. She was articulate, comprehensive, forthright, and spontane- ous. Briley's testimony is uncontradicted in crucial areas. For example, she testified that Dr. Chiaramonte, during the first union campaign, called Kline a "dirty rat" and disloyal to him and the hospital because of Kline's union activity. Also, Briley testified that Dr. Chiaramonte, in January, told the Employer's department heads to "get rid" of the union organizers. Dr. Chiaramonte did not appear as a witness at any time during the instant pro- ceedings. Briley also testified that Supervisors Ann Kartley and Margaret Greenway both called Kline a "troublemaker" because of Kline's union activities. Briley testified Green- way had also called Keller a "troublemaker" in the con- 5 The General Counsel also relies on I he Board's findings in Judge Pacht's case (See 276 NLRB 1349) text of a conversation in which Greenway noted that Keller's job gave him the chance to traverse various areas of the hospital where he could engage in his orga- nizing activities. Kartley testified, but was not asked to refute this part of Briley's testimony. Greenway did not appear as a witness. Briley also testified that Diane Johnson, supervisor of Keller's immediate supervisor, said that Johnson had been told to "get rid" of Keller, but could not at that time find fault with Keller's performance. Johnson testi- fied before me. She was not asked to contradict this part of Briley's testimony. Regarding Dr. Chiaramonte, there is no evidence that he was unavailable to testify. Kartley and Johnson did not seek to refute the statements Briley ascribed to them. The Employer made no efforts to explain Greenway's absence. Accordingly, in evaluating credibility, I have inferred that the testimony of each of these supervisors would not support the Employer's cause. Interstate Cir- cuit v. U.S., 306 U.S. 208, 226 (1939); NLRB v. Wallick & Schwalm Co., 198 F.2d 477, 483 (3d Cr. 1952); also see Martin Luther King, Sr. Nursing Center, 231 NLRB 15 fn. 1(1977). I found Kartley the most impressive of the Employer's witnesses. She testified in a calm, relaxed, articulate, comprehensive, and candid manner. Part of her testimo- ny was designed to rebut Briley's claim that Dr. Chiara- monte told the department heads to get rid of the union organizers. Thus, Kartley denied that Dr. Chiaramonte made any comments about the December 1984 Board election or what should be done with the union organiz- ers. I find Kartley's testimony is not probative on this issue. She candidly admitted a weakness in recollection of the specific events at the department head meeting when Dr. Chiaramonte was supposed to have made the "get rid of" remarks. Kartley admitted her testimony of what occurred at that meeting was based on her review of the Employer's written minutes of that meeting. She had no clear independent memory of those events. In contrast, Briley's direct testimony of what Dr. Chiaramonte said at the department head meeting was sure and precise. Indeed, during cross-examination, Briley reinforced her earlier testimony. Briley's cross-ex- amination testimony was that Dr. Chiaramonte said (re- ferring to the December 1984 election) that the hospital won, the supervisors should identify the problem areas and why any employees voted for the Union, and should "get rid of the organizers" I find Briley's account of Dr. Chiaramonte's expres- sions of his views of Kline and his instructions to depart- ment heads plausible and probable. It is wholly consist- ent with the disdain Dr. Chiaramonte demonstrated during the Union's first election campaign. His attitude is extensively chronicled in Judge Pacht's decision. Dr. Chiaramonte was personally the Employer's operative in the following conduct 'which Judge Pacht found unlaw- ful and the Board affirmed: confiscation of union litera- ture; threatening bodily harm to an employee distributing union literature; being the source of the announcement of the "Employee of Month" award; solicitation of griev- ances; restriction of employees' access to union organiz- 486 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ers; and being principally instrumental in withholding the 1981 yearend bonus. No evidence was adduced before me to show that Dr. Chiaramonte's philosophy concerning unionism or those involved in it changed at any time after the Union's first organizing campaign to the present time. Indeed, I find that Dr. Chiaramonte's January 1985 request that depart- ment heads search for the problems that prompted union votes in the second election constitutes an extension of his grievance solicitation which the Board has already found unlawful. In the total context, I find it entirely probable Dr. Chiaramonte said all the things Briley at- tributed to him The Employer challenges Briley's veracity, in part, with a claim that she is a disgruntled former employee who harbors a "pathological hatred for Dr. Chiaramonte and the Hospital." Moreover, the Employer argues that documentary evidence reflects her propensity to lie. I disagree with these contentions. Briley (as earlier indicated) resigned in May. That res- ignation was voluntary. Briley testified she resigned be- cause she was disappointed over her failure to receive a promotion to vice president of nursing. Briley claimed, without contradiction, that Dr. Chiaramonte had prom- ised that position to her. During cross-examination, Briley admitted having re- ferred to Dr. Chiaramonte as a "son-of-a-bitch"; and that she remarked that "Dr. Chiaramonte didn't have the balls to tell me to my face" that he had accepted her res- ignation. Briley denied referring to Dr. Chiaramonte as a "m—r f—r." Suriani and Palmquist testified they heard Briley apply the latter obscene remark to Dr. Chiara- monte.6 The Employer produced a 20 February memorandum from Briley to Chiaramonte (R. Exh 2) to contradict Briley's oral assertions that she referred to Dr. Chiara- monte in this way and that she was angry at him Un- questionably, Briley's 20 February memorandum is punc- tuated with obscene and vulgar language. Its tone is highly intemperate. It expresses Briley's fury at Dr. Chiaramonte's broken promise to promote her. I find that letter, however, viewed in light of all other circum- stances relevant to Briley's credibility, insufficient to dis- credit her. First, I note that the 20 February memorandum does not contain the term "m—r f—r." This is consistent with Briley's denial she referred to Dr. Chiaramonte by that term. Accordingly, and because I find Briley credible in other respects, I accept her denial she used this term in the context described by Suriani and Palmquist. Assum- ing, arguendo, that Suriani and Palmquist were credited in this regard, that fact, alone, would not override Bri- ley's impressive demeanor and other factors discussed above and from which I conclude she is credible. A trier of fact need not discredit a witness simply because all of that witness' testimony is not believed. Edwards Trans- portation Co. and Wilco Energy Corp., supra. Second, the relationship between Briley and Dr. Chiaramonte between the 20 February memorandum and 6 I shall find, below, Suriam and Palmquist are not as reliable witnesses as Briley. Briley's resignation in May tends to negate the Employ- er's assertion that Briley's testimony was tainted by lin- gering hostility toward Dr. Chiaramonte. The record re- flects Briley worked at the hospital without serious inci- dent or additional confrontations, written or oral, with Dr. Chiaramonte during those 3 months. There is no evi- dence that any discipline toward Briley resulted from her 20 February memorandum. Her resignation was volun- tary. I observed nothing in Briley's testimonial demeanor from which I could conclude her testimony was shaded by her personal feelings about Dr. Chiaramonte or the hospital, whatever those feelings may have been at the time she testified. I conclude the record as a whole war- rants a fmding that Briley was a credible witness. I credit her in all respects. Linda Stem appeared as a General, Counsel witness. Stem was a part-time registered nurse in CCU. Jacque- line Anderson was then her immediate supervisor. Stem was hired by the Employer in November 1984 as a "floating nurse" in critical care areas. Stem became head nurse at the end of January 1985. She held that position only briefly. She resigned approximately the first week in April 1985. Thereafter, she retained her work relation- ship with the hospital as an "on call" nurse. Stem re- mained in "on-call" status until the beginning of 1986. At that time, she assumed the part-time status that existed at the time she testified. Stem testified she was privy to cOnversations between Anderson and PaImquist, concerning Kline, when Stem was head nurse. Specifically, Stem testified Palmquist asked Anderson "what was happening in order to get [Kline] removed." Further, Stem testified she asked An- derson why they wanted Kline removed. According to Stem, Anderson answered she was being pressured by Palmquist to fire Kline because of her union activity. Anderson told Stem that Anderson's job had been threat- ened and because Anderson was newly employed at the hospital she could not risk her position.7 Stem testified to another conversation with Anderson approximately the same time as the conversation de- scribed in the immediately preceding paragraph. Stem testified she walked into Anderson's office. There, she observed Anderson reviewing patient charts containing Kline's nursing notes. Stem testified she asked Anderson whether the review was in connection with an audit.8 Stem testified Anderson told her she was reviewing Kline's notes for information that could be used against Kline. Stem also testified that Anderson showed her a letter from Baicar, the daughter of one of Kline's patients. (This letter described the incident for which the alleged unlawful 25 March reprimand and 3-day suspension was imposed on Kline.) Stem testified Anderson said Palm- quist solicited the written complaint because it was an- other stepping stone to get Kline removed. Stem also claimed Anderson said she was looking for things that 7 Anderson first became employed by the instant employer on 30 No- vember 1984. She was hired as head nurse in CCU 8 Periodically, audits are performed to assure the proper performance of professional tasks SOUTHERN MARYLAND HOSPITAL 487 would prove Kline "wrong" or that (in Stem's words) "they could get on . . . Kline." Finally, Stem testified she and Anderson spoke about Kline's discharge. This conversation occurred after Stem resigned as head nurse; when she was in on-call status. Stem testified she questioned the validity of the reasons given for Kline's discharge. According to Stem, Ander- son said the matter was not Stem's business and that she should forget whatever she earlier heard about Kline be- cause Stem was no longer a supervisor. Stem claimed she told Anderson she heard Kline was pursuing the matter of her discharge. Stem told Anderson she doubted Stem could avoid telling the truth about what she had heard. Stem claimed Anderson said Anderson would deny any- thing to save her position. I find it unlikely that Stem would have testified false- ly. Stem's testimony is powerful evidence against her Employer. In part, it implicates her current direct sup5r- visor. She has put her job on the line. Her testimony is entitled to considerable weight. Motz Poultry Co., 244 NLRB 573, 575 fn. 7 (1978), citing Georgia Rug Mill, supra. I would credit Stem in any event. At first, Stem ap- peared reluctant to testify. That reluctance is understand- able. She was about to testify against her employer and immediate supervisor. As her testimony progressed, her demeanor became more sure and direct. She was unsha- ken by rigorous cross-examination. Some of Stem's testi- mony before me was not contained in her prehearing af- fidavit. She was confronted with those omissions. I was particularly impressed with the spontaneous and sincere explanation of those omissions. On all the foregoing re- garding Stem's testimony, and my view to be stated about the comparative testimony of Anderson and Palm- quist, I fully credit Stem in all respects. Palmquist, Anderson, Johnson, and Suriani did not im- press me as witnesses in whose testimony I could have complete confidence as to accuracy or reliability. Each of them appeared anxious to exhibit their patent and in- tense loyalty to the Employer and Dr. Chiaramonte. Overall, this attitude led each of them to cast their testi- mony in a light most favorable to the Employer.9, Palmquist's testimony is pervaded by instances of re- sponding to questions based on logic instead of specific, direct recall of events. Whenever it appeared she had no specific recall of art event, Palmquist testified it occurred "probably" as she testified. In some respects her testimo- ny was contrary to Anderson's and was self-contradicto- ry. For example, Palmquist, early in her testimony, claimed that the failure to "give report"" constitutes, without more, sufficient cause for discharge. Palmquist, in later testimony, however, conceded that often nurses will telephone additional information on patients that had not been included in their end-of-shift report. Also, Palmquist conceded that sometimes those reports are in- complete. Thus, Palmquist's later testimony shows she exaggerated the urgency of giving report. 9 Palmquist's loyalty, in particular, is understandable. She apparently received the promotion that Briley expected 1.° This term denotes the routine requirement that nurses departing their work shifts deliver to the nurse on the next shift a report on status, care, and incidents relative to, and affecting, their patients. Kline was discharged allegedly because she failed to give report. Palmquist testified she approved Anderson's recommendation to discharge Kline. Pahnquist claimed she relied only on Kline's alleged failure to give report, and not on the record of Kline's earlier job performance. Anderson testified her decision to discharge Kline was based on Kline's earlier record. I find this inconsistency adversely impacts on the credibility of each of these wit- nesses. It also makes suspect the Employer's explanation for Kline's discharge. Palmquist exhibited a tendency to exaggerate. She claimed rudeness by nurses is a reason for discipline. She claimed she had in fact imposed discipline for that - reason. However, Palmquist could not recall the names of nurses she claimed she disciplined. She also could not recall the nature of the rudeness. Ultimately, Palmquist claimed she had a poor memory. I consider Palmquist's haste to respond in a way favorable to the Employer, combined with her inability to cite examples of her initial claims, casts serious doubt on her testimonial reliability. The parties have made a major issue regarding wheth- er Palmquist solicited Baicar's complaint about Kline in writing. The General Counsel asserts Palmquist did so in order to establish a base for Kline's 25 March reprimand and suspension. Palmquist unequivocally denied she . asked Baicar to submit her complaint in writing. Palm- ', luist asserted it was Baicar who said she wanted to submit a written description of what occurred. Palm- - quist's testimony, in this regard, is consistent with the Employer's position. I conclude this part of Palmquist's testimony is implausible. I have credited Stem's testimony that Anderson told her it was Palmquist who asked Baicar for written docu- mentation of the events involving Kline's treatment of 13aicar's mother. Anderson's revelation to Stem is an ad- mission adverse to the Employer. This admission contra- dicts Palmquist's denial of the letter solicitation. Additionally, Palmquist's denial that she asked Baicar to write her complaint is also contradicted by the reason- able implications within Baicar's letter of complaint. In salient part, Baicar wrote: "I told my dad not to leave mom—I was going to call the doctor and report this nurse [Kline].. . . The doctor. . . was entering the hos- pital so I gave him a complete run down on the situation . . . and he said. . . he would handle it. I told him, the doctor, I was going to report this matter to the Director of Nurses and was told to see Marie Palmquist . . and I was received most warmly and was assured immediate action would to [sic] taken and I agreed to testify if nec- essary to have. . Carol Kline removed from duty.. . . I then called Carol Kline['s] supervisor, to assure myself she would not be assigned to my mother ever again— then I received the same warm compassion from Jackie Anderson." (G.C. Exh 12, 3-4.) I find the above-quoted portion of Baicar's letter rea- sonably suggests it was Baicar's intention to report her complaint about Kline orally to all of Kline's superior authorities."- I find the tenor of the quoted language de- " Baicar did not appear as a witness at the hearing. I draw no infer- ence from this situation. Btucar's absence was explained by the Employ- er's counsel. 488 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD picts the writer as anxious to relay her complaints as rap- idly as possible to whomever conceivably could take re- medial action. If Baicar had contemplated submitting her complaint in writing to all these authorities, it is likely she would have made an initial report (as she did) to the doctor. That report would have been followed by a writ- ten confirmation to be circulated among the appropriate hospital officials. In any event, some of Baicar's language evinces an in- tention limited only to making the immediate reports which she did on the day of the incident. Thus, Baicar wrote that Palmquist "assured immediate action would be taken." Baicar expressly wrote she "was going to call, the doctor and report this nurse."12 Finally, I find some of Baicar's language implicitly contradicts Palmquist's denial she solicited Baicar's com- plaint in writing. Specifically, Baicar signified her writ- ten agreement to testify against Kline to have her re- moved from duty. I fmd that language reflects Baicar and Palmquist discussed possible consequences of Bai- car's complaint and that removal of Kline from duty was raised as a possibility. Baicar wrote she "agreed to testi- fy" to accomplish that result. Baicar's agreement neces- sarily implies Palmquist asked whether Baicar would tes- tify against Kline. I find this context supports the conclu- sion, which I make, that Baicar's written complaint was generated by Palmquist's requests. Such n request was 6 way to preserve the incident in Baicar's words and to be a tool for testimony against Kline if necessary. I find Palmquist's testimony flawed in yet another re- spect. Palmquist, in part, gave testimony apparently in- tended to show Stem was biased against her employer. Palmquist identified specific deficiencies in Stem's per- formance as head nurse. Palmquist testified she "prob- ably" would have removed Stem from her position had Stem not resigned. I find this testimony does not help to establish Stem's testimonial bias. There is no evidence that Palmquist discussed the claimed deficiencies with Stem. The circumstances of Stem's resignation do not appear in the record. Stem, however, was retained in on- call status after she resigned. Later, she became a regular part-time nurse. I conclude this series of events would naturally impart a sense of fealty in Stem toward the Employer. Undoubt- edly, she would be grateful to the Employer for the op- portunity for continued employment. Thus, I conclude Palinquisf s effort to portray Stem as biased against the Employer is contrary to the probable consequences of how Stem was treated after her resignation. This is an example of Palmquist's effort to depict the facts in a light most favorable to the Employer. This situation tends to enhance, rather than diminish, Stem's credibility. It is a classic example of the rationale underlying the rule by which special weight may be given to testimony of cur- rent employees who testify adversely to their employer's interests. 12 The combmation of these two quoted phrases, I find, reasonably suggests that Baicar's concept of a report about Kline's conduct was neb- ulous at best It could have been either oral or written Palmquist's assur- ance that "immediate action would be taken" suggests Baicar's satisfac- tion that her oral report had served its purpose. Anderson was evasive and self-contradictory concern- ing her knowledge of Kline's union activities. She testi- fied on this subject before me and also at a hearing on Kline's claim for unemployment compensation. Anderson testified she was "not sure" whether she heard Kline was a member of the Union's organizing committee; that she "vaguely" remembered she saw "a badge somewhere saying OPI or whatever the initials were"; and that she "honestly" did not recall whether she saw Kline wear a badge. Anderson gave contrary testimony at the unem- ployment compensation hearing. There, she testified that she "saw the button," responding to the question about whether she "knew [Kline] had worn a button openly supporting the Union?" Anderson orally exaggerated Kline's alleged miscon- duct in taking keys to a narcotics cabinet home with her. That incident was one on which Anderson purportedly relied to recommend Kline's discharge. Anderson testi- fied Kline refused to return the keys until she reported to work the following morning. Later, however, Anderson admitted that the nurses on duty had agreed with Kline she need not return the keys until she reported for her regular shift the next day. Anderson's exaggeration of this incident is demonstrated by another event. She pre- pared an employee corrective action form. Anderson tes- tified she considered the form constituted a verbal repri- mand.13 Anderson admitted she did not tell Kline that she was being formally reprimanded for the narcotics key inci- dent. Anderson also acknowledged that she did not show the CAR, relative to the narcotics key matter, to Kline; nor that she asked Kline to present any written com- ments or sign the CAR in the spaces provided for com- ments and employee signature on the form. Anderson testified further that the narcotics key CAR was retained in her personal files in her desk." Anderson's use of the narcotics key CAR in this way is an example of her studied effort to paint the back- ground events in a light most favorable to the Employer. Moreover, Anderson's treatment of that particular CAR is some evidence that the reasons given for Kline's dis- charge are pretextual Anderson provided no explanation for her failure to tell Kline the CAR had been prepared at the time of the incident, the failure to ask Kline to re- spond or sign it; or why she held it in her own personal files. In this context, I find Anderson's use, for the first time during the instant hearing, of the narcotics key inci- dent as a basis for Kline's discharge an exaggeration. Ap- parently, Anderson did not attribute the same importance to the narcotics key incident when it occurred as she claimed during the instant proceeding. I find Anderson's testimony concerning the 14 Decem- ber discipline represented by a CAR of that date (G.C. 13 Anderson's written description of the narcotics key incident appears on a Corrective Action Report (CAR) (R Exli 56) The CAR is a disci- plinary form. Different forms were used by supervisors to make anecdot- al records of noteworthy events Most of such notes were prepared on forms entitled "Hospital Incident Report To Administrator" (HIR), such as G.0 Exh. 20 Some anecdotal notes appear on forms called "Employ- ee Performance Record," such as G C. Exh. 18. 14 Customarily, CAR's are maintained within the personnel folders of the disciplined employee. SOUTHERN MARYLAND HOSPITAL 489 Exh. 17) one of the most glaring examples of her exag- gerations designed to justify the disciplinary actions taken against Kline. Anderson charged Kline, in that CAR, with failure to comply with Anderson's instruction to obtain a doctor's excuse for her absence on a single shift, 11 p.m., 12 December 1984-7:30 a.m., 13 Decem- ber 1984. Kline worked the following shift ending 7:30 a.m., 14 December 1984. Anderson then asked Kline to produce a "physician's" excuse. Anderson conceded that hospital policy requires a physician's excuse for absences exceeding 3 days. Employees need only provide certifi- cation of ability to return to work from the employee health nurse for absences of shorter duration. Anderson asserted hospital policy also vests a head nurse with discretion "at all times" to request a physi- cian's excuse. She claimed she exercised this discretion because she was not convinced Kline actually had been ill." Kline protested Anderson's request for a doctor's excuse because she said she was no longer sick. Kline positively recalled that Anderson changed her request and instructed Kline to obtain a slip from the employee health department. Anderson admitted she "may have" changed her instruction to Kline. 16 Kline delivered a "return to work statement" to Anderson. Kline obtained that statement from the employee health department. The statement was signed by a doctor. Some time later, Anderson told Kline she would not be paid for her sick leave on 12-13 December because the payroll depart- ment had not accepted the employee health slip. Anderson conceded Kline did not often call in sick. Anderson agreed Kline did not abuse sick leave. None- theless, Kline prepared the 14 December CAR. I conclude Anderson's testimony concerning her deal- ings with Kline over this single-shift absence from work a strained attempt to create an unwarranted impression of Kline as a malingering employee. Concededly, Kline had not abused sick leave. No objective evidence was presented for Anderson's extraordinary initial exercise of discretion in asking Kline to produce a physician's certif- icate. Thus, if I were to accept Anderson's account, I would find her insistence on a doctor's certificate, under all the circumstances, some, but not dispositive, evidence of disparate treatment toward Kline. I have credited Kline's testimony, however, that An- derson changed her request for a doctor's excuse to one which Kline could obtain from employee health. Kline complied; yet Anderson prepared the 14 December CAR as a document that suggests Kline was insubordinate. Also, the Employer rejected the employee health form (G.C. Exh. 25) as a basis for sick leave pay to Kline. No good reason for this appears in the record. I find Ander- son's description of the 14 December CAR confusing, self-contradictory, and illogical. As such, I find it ad- versely impacts on Anderson's overall reliability as a wit- ness. ' 5 Kline helped give another nurse a bridal shower in the CCU nurses' lounge on 12 December 1984. Anderson saw Kline at the shower. Kline uncontrovertedly gave proper notice of her intended absence from work that night. i8 I credit Kline's precise memory. Johnson provided extensive testimony for the Employ- er regarding Keller's 9 May disciplinary suspension and the Employer's 13 May refusal to permit Keller to re- scind his resignation. Earlier, I observed that Johnson did not contradict Briley in a critical area. Thus, John- son's testimony contains no denial that she told Briley Johnson had been told to get rid of Keller but could find no reason. I consider Johnson's silence tends to cam pho- rate Briley. I find Johnson's explanation for her imposition of the 1-day disciplinary suspension is implausible. On a single CAR, Johnson issued two disciplines to Keller. The first was for working 10 hours on 6 May "after having been informed/directed that his schedule would be changed to 8-hours/day." The second was because Keller "failed to report to work on Wednesday May 8, 1985." This CAR also reflects Keller's suspension was effective for 10 May only. Johnson, on 2 May, told Keller he would have to change his work schedule. (Then, Keller regularly worked 10 hours per day on 4 workdays each week.) Johnson told Keller he would thereafter be required to work an 8-hour day, 5 days each week. Keller was scheduled to begin a vacation on 13 May. He credibly testified Johnson gave him the option of beginning his new work schedule after he returned from vacation. Johnson testified Keller agreed to begin the new sched- ule on 6 May and he was insubordinate when he worked 10 hours on that date." Johnson testified it was her sole decision to impose the suspension on Keller even though she admitted having consulted the Employer's personnel director, Chappell, in Suriatii's presence. Johnson's assertion that she alone decided to discipline Keller is self-contradictory. Johnson testified that, on 7 May, she learned Keller had worked 10 hours the previ- ous day. On 7 May, she spoke with him Johnson asked Keller why he worked 10 hours on 6 May after he had been informed his 8-hour schedule would begin on that date. Whether Keller answered is not clear." I find it virtually impossible to credit Johnson's claim she singlehandedly decided on Keller's discipline because the evidence shows that decision was made at a confer- ence, on 9 May, attended by Moran, Suriani, and Chap- pell. Moreover, I find Johnson's reaction to Keller's res- ignation inconsistent with her claim she considered him so insubordinate that she alone decided to impose disci- pline on him. On 10 May Keller delivered a written res- ignation to Johnson. (This was on the day of his suspen- sion.) Undisputedly, Johnson tried to dissuade Keller. 17 Moran, Keller's immediate supervisor, was present at the 2 May dis- cussion between Johnson and Keller Moran testified it was not clear to her whether Keller actually had an option to delay implementation of his new work schedule until he completed his vacation. '8 Keller's response, if any, is not relevant to my credibility determina- tion. Johnson answered counsel for the General Counsel, then mterrogat- ing Johnson as an adverse witness, that she then "reiterated that . . . [Keller] should be on his 8-hour schedule." Later, Johnson gave re- sponses inconsistent with a claim that Keller was insubordinate Thus, Johnson testified that she did not ask Keller to leave early; warn him that he might be in Jeopardy for failing to comply with Johnson's 2 May di- rective; or direct him to be at work the following day, Wednesday, 8 May (compare Tr. 831 with 880-881). Keller regularly did not work on Wednesday under his 4-day week schedule. 490 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Keller, in effect, told Johnson he would not be happy on his job and would bear a grudge against the hospital be- cause his work schedule had been changed. Johnson said she would forebear processing of his resignation until Keller returned from his vacation. If Johnson considered Keller as insubordinate as she claimed, I fmd it likely she would have accepted his resignation without hesitation. Johnson was equivocal in her testimony regarding Sur- iani's participation in dealing with Keller's resignation. At first, Johnson could not recall discussing Keller's res- ignation with Suriani on 10 May. Considerably later in her testimony, Johnson altered that testimony. Then, she acknowledged she told Suriani of Keller's resignation, on 10 May immediately after Keller left her office. Finally, I conclude Johnson simply was not candid concerning the decision to decline to accept Keller's res- ignation. Johnson claimed she decided to reject Keller's rescission without discussing the situation with Suriani. Her claim was directly contradicted by Suriani. He testi- fied that Johnson notified him Keller wanted to rescind his resignation. Suriani testified that he then instructed Johnson to process the resignation.1.2 I found Suriani's testimony an enigma. He was articu- late throughout his testimony. He displayed a penchant for precision in many areas of his testimony. Yet, I found Suriani evasive in critical areas. In some instances, he parried with opposing counsel until he could provide a response to satisfy the questioner. Suriani was questioned about the Employer's rejection of Keller's effort to rescind his resignation. He was asked whether the hospital has a policy prohibiting reemploy- ment of individuals who resigned. Suriani admitted his familiarity with personnel matters. Then, counsel for the General Counsel asked, ". . . it's true, is it not, that you have—the hospital has no policy against rehiring people who have resigned assuming it's a normal and amicable resignation." Suriani's immediate response was to ask the question be repeated. It was. Suriani answered, "I don't know, sir. I don't recall, let me put it that way, sir." Counsel pressed on. He asked, "you recall no policy against—." Suriani interrupted, saying: "I recall no policy about rehiring." Counsel completed his question by saying "at all." Suriani replied, "I have no recollec- tion, sir. I don't know, That's my answer, I don't know whether we do or—." Counsel interrupted, asking, "Don't know whether the hospital has a policy that says under no circumstances is someone who submits a resig- nation will be hired as a matter of policy; you don't know whether the hospital has that?" Suriani replied, "That's my answer, sir." (Tr. 533-534.) I find the above-cited dialogue a blatant example of a material evasion. The evidence clearly reflects that, on 13 May, Johnson told Keller he would not be allowed to rescind his resignation. Keller's prominent union activity, in my view, makes it important to know whether resig- nation policies and practices existed. The degree to which the Employer acted toward Keller consistent with such policy, if one existed, is a factor relevant to assess- ment of the Employer's motivation. Suriani impressed 19 Surma vacillated during his account of his participation in Keller's resignation. See discussion of Sunam's testimony. me as highly intelligent. He was quick-witted, alert, and perceptive. Clearly, he comprehended the import of the quoted interrogation. Suriani was hospital administrator from November 1978 until he ascended to his current po- sition as executive vice president in January 1982. He ac- knowledged knowing at least one employee who was re- hired after having resigned. This context exposes the evasive character of Suriani's demeanor and testimony. It makes implausible his professed ignorance. I find it im- probable that Suriani could not recall whether a resigna- tion policy existed. Suriani contradicted himself. I earlier indicated Suriani contradicted Johnson's denial she told Suriani that Keller wanted to rescind his resignation. Suriani changed his testimony later during the hearing. Then, Suriani claimed he first learned of Keller's resignation after Johnson told Keller his rescission had been rejected. Still later, Suriani returned to his original testimony. He then claimed John- son told him Keller resigned on the day the resignation was submitted. Finally, Suriani reasserted that he did not hear from Johnson about Keller's resignation until after the attempted recission. Suriani, near the end of his testi- mony, attempted to explain these variations. In effect, he ascribed them to a deficient memory. He claimed he had been confused, but his last description of events was the most accurate. I find Suriani's explanation uncharacteris- tic of my observations of his intellectual acumen. Those observations, already stated, diminish the sincerity of the proffered explanation. Suriani was asked why the Employer rejected Keller's effort to rescind his resignation. (By its terms, the resig- nation was to be effective 3 weeks later than its accept- ance. See G.C. Exh 39.) Suriani explained the resigna- tion was immediately accepted because Keller told John- son he would hold a grudge against the Employer for having changed his work schedule. 2° Suriani testified he did not recall whether Johnson either recommended ac- ceptance of the rescission or asked Suriani for advice. He said that, in any event, he would have directed accept- ance of the resignation because Keller's statement about a grudge signified an attitude adverse to good job per- formance. I conclude that Suriani responded to the questions concerning the reasons the rescission had been rejected the way he did impacts adversely on the Employer in two ways. First, it tends to show, contrary to Johnson, that Suriani indeed participated in the rescission rejec- tion. Suriani's demeanor, when testifying on that issue, reflected a desire to relate information with which he had been intimately acquainted; more than it was a nar- rative of information imparted to him merely by reports of another. Second, Suriani was obviously eager to ex- press his views on what he might have done, if he re- called actually participating in the rescission rejection. I find his authoritative responses, in this posture, an exam- ple of his effort to cast events to the Employer's advan- tage. 20 This fact was reported, above, within my discussion of Johnson's credibility. Keller candidly admitted he made a statement to that effect SOUTHERN MARYLAND HOSPITAL 491 Ostensibly, Suriani's explanation is not wholly unrea- sonable. I would exceed my authority if I were to substi- tute my judgment for Suriani"s, in such circumstances. Nonetheless, the explanation must be assessed in light of die total record. This record reflects considerable em- ployer hostility to union activity. It also shows Keller was an exemplary employee for the approximately 3-1/2 years he worked at the hospital. Johnson tried to dis- suade Keller from resigning. On balance, I find Suriani's adamant position illogical. The total context, in my view, reflects that Suriani was motivated by considerations other than his personal style as an efficient, stern manag- er. As such, I find this explanation impacts adversely both on his candor and the Employer's defense in gener- al. Kline and Keller testified. I found each refreshingly straightforward, forthright, direct, and internally consist- ent. Each was candid. Each readily acknowledged events and conduct adverse to their interests. For exam- ple, Kline admitted her anger toward Baicar. Kline ad- mitted the charge that the door to Baicar's mother's hos- pital room slammed in Baicar's presence. Further, Kline acknowledged she took the narcotics keys home with her as Anderson testified and challenged Anderson's di- rective to obtain a doctor's excuse. Keller admitted (as described above) he became indignant and curt toward Johnson and Moran when they informed him of his new work schedule. C. The Facts21 1. Kline's discipline Kline was hired on 18 June 1979. She worked as a reg- istered nurse on a medical/surgical floor until August 1983. Then she was transferred to CCU. Kline worked in CCU until her termination on 9 April. Palmquist became director of nursing in July 1984. Kline's employment difficulties began soon after Ander- son became CCU head nurse on 30 November 1984, and only 1 week after the second representation election. Anderson's preparation of the 14 December CAR over Kline's failure to comply with the request for a physi- cian's excuse is the first of her difficulties. The circum- stances surrounding that particular CAR are described in the credibility section above. The Employer questions the "timeliness" of consideration of this event as an unfair labor practice (see fn. 9, R. Br.). I granted the General Counsel's motion to add this incident to the complaint on the fourth day on which testimony was ad- duced. Five additional hearing days were required to complete the hearing. The Employer cites Dayton Auto Electric, 278 NLRB 551 (1986). The Board there, in footnote 1, held its ad- ministrative law judge erred in permitting a midhearing amendment to a complaint 14 months after occurrence of the events that inspired the new allegation. The Board reasoned that the motion contravened the Act's statute 21 The operative facts are substantially undisputed. All factual findings in this section are a composite of unrefuted evidence, stipulations, and credited testimony Not every bit of evidence or argument of counsel is reported Each, however, has been considered Omitted material is deemed irrelevant, superfluous, or of little probative value. of limitations, Section 10(b). Each of the three decisions relied on by the Board in Dayton Auto also involved ap- plication of Section 10(b) to circiimstances that occurred over 6 months before the filing date of the charges. I entertained extensive arguments on this motion to amend (see Tr. 810-820). Counsel for all parties argued. The Employer's argument was not based on Section 10(b). Rather, its thrust was, in effect, simply that the General Counsel was guilty of an unwarranted delay in proposing this issue as an allegation. The Employer's counsel conceded he would not be prejudiced in prepara- tion of a defense because the amendment was being pre- ' sented prior to an anticipated extended recess of the hearing. I reaffirm the grant of this motion to amend. It is ad- dressed to my discretion. No 10(b) problem exists. The complaint to which the amendment is related was issued on a charge filed on 15 April 1985. The violation alleged in the amendment assertedly occurred on 14 December 1984. The 6-month period had not expired. Accordingly, I find Dayton Auto, and cases cited in it, materially distin- guishable. I granted this motion to amend after there had been substantial litigation of the issue': The Employer had suf- ficient additional time to pursue its defense, and did so. Finally, as noted at the hearing, this issue generally was encompassed within the relevant charge. Kline's next confrontation with Anderson occurred on 10 January. Anderson discussed the narcotics key inci- dent with Kline on that date. Kline admitted she took the keys to a narcotics cabinet home with her on 9 Janu- ary. The essential facts of this incident appear above in the credibility section. No further discussion is necessary at this juncture. Kline's next problem involved her conduct regarding Baicar and Baicar's mother, patient Hazel Johnson.22 Kline's care of this patient on 13 March was the subject of Kline's 25 March CAR (G.C. Exh. 11) and 3-day sus- pension. As earlier noted, Kline was neither shown nor asked to sign either of the preceding CARs prepared by Anderson concerning the failure to produce a physician's certificate and the narcotics key incident. Kline did, however, receive the CAR involving Baicar. Kline wrote her comments on, and signed, it. In fact, Kline was presented a revised CAR concerning the Baicar matter. (See G.C. Exh. 10.) The revised CAR was identi- cal to the original, except that it admonished that "any further complaints of this nature or complaints of atti- tude problems will result in termination." Baicar spoke to Palmquist in late afternoon, 13 March. Baicar complained about Kline's treatment of Baicar's mother that day. Palmquist listened. She calmed Baicar. Palmquist assured Baicar her complaints would be inves- tigated and necessary action taken. Palmquist solicited written documentation of Baicar's complaints.23 22 There is no contention that Hazel Johnson is related to Supervisor Diane Johnson. 23 See credibility resolution regarding this issue in sec 11,13, above. Specifically, I credit Stem's testimony that Anderson admitted Pahnquist solicited the Baicar letter as a stepping stone to get Klme removed 492 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Baicar submitted a written description of her com- plaints (G.C. Exh. 12) the next day. Palmquist asked An- derson to investigate. Anderson concluded Kline had been rude and abrasive to Baicar and her father, had left Baicar's mother unattended so that she might have fallen from her bed, that she excessively delayed feeding Bai- car's mother her lunch, 24 and that she "slammed" the hospital room door at Baicar. Anderson showed Kline Baicar's complaint letter on 22 March. Anderson gave Kline the chance to prepare a written response. Kline submitted a written response the same day (see G.C. Exh. 31). In it, Kline presented a comprehensive description of her version of what oc7 curred on 13 March. Kline admitted she became angry because Baicar tried to enter her mother's room contrary to Kline's request. Kline admitted the door slammed shut; not because of her anger but, rather, because she had to push it with her foot while simultaneously bathing Baicar's mother. Kline's written submission acknowl- edged the delay in feeding lunch to Baicar's mother. The delay was attributed to a combination of Kline caring for a different patient and unavailability of replacement as- sistance Finally Kline's submission contained her apol- ogy "for any misunderstandings that may have occurred on the day in question" and her willingness to speak with Hazel Johnson's family to "help resolve these con- cerns." Anderson decided Kline was derelict in patient care. She prepared the CAR that imposed a written reprimand and 3-day suspension on Kline. The suspension was ef- fective 25 March. Kline's discharge arose from her failure to "give report" on 29 March. Kline's work shift was 7 a.m. to 3:30 p.m. that day. Three patients were assigned to her. One of those patients, Biggs, had been transferred to Kline for the first time that morning. Kline cared for Biggs and made appropriate entries and notations on Biggs' chart and required reports. At shift's end, Kline left the hospital without giving report on Biggs to the succeeding nurse, Ellen Effickson. Kline did give report on her other two patients. Ellick- son looked for Kline. Ellickson telephoned Kline's home, when she could not be located at the hospital. Kline had not yet returned home. Ellickson left a message with Kline's mother. Kline called Effickson when she returned home. She gave Ellickson a report on Biggs. Ellickson received this report between 15-20 minutes after Kline left the hospi- tal. Anderson learned that Kline failed to give report. She overheard Effickson tell another nurse that she did not receive a report on Biggs from Kline. Anderson spoke to Ellickson. Ellickson said that Kline gave her report by telephone. Anderson, in turn, reported the incident to Palmquist by telephone. Palmquist requested a written report. Anderson complied. Anderson was absent from work for a few days for personal reasons. Anderson and Palmquist discussed Kline's failure to give report on Biggs after Anderson re- 24 Kline acknowledged she went to lunch without having fed Baicar's mother turned to the hospital. They agreed to terminate Kline. Anderson prepared a CAR (G.C. Exh 14). Anderson cited Kline with a "failure to report [on 3/29/85 on] Biggs. Had to be called at home to obtain report." The CAR contained Anderson's recommendation for dis- charge. Anderson called Kline into Palmquist's office on 9 April at the end of Kline's shift. Kline was told she was terminated for failing to give report on Biggs. Anderson and Palmquist did not give Kline an oppor- tunity to explain her failure to give the Biggs' report. Kline gave her account in the instant hearing. Kline testi- fied she recalled that she forgot to give report on Biggs during her drive home. That drive customarily takes about 15 minutes. Kline's mother conveyed the message that she was called from the hospital. Kline immediately called Ellickson. Kline's report was brief. Kline was un- contradicted when she testified her report was brief be- cause Elhckson "said most of the information was on the clipboard, and she really didn't feel that she needed that much more information on [Biggs]." The Employer expended considerable effort to demon- strate that giving report is a highly essential and critical element of every nurse's job. I have noted, in the credi- bility section above, Palmquist's assertion that failure to give report is a dischargeable offense. I also noted Palm- quist's concessions that nurses telephone additional infor- mation and reports are sometimes incomplete. As noted in the credibility section, Anderson relied on more than just Kline's omission to give report in recommending Kline's discharge. The discharge CAR confirms this is Anderson's view. Although explicitly preparing the CAR over the failure to give report, Anderson also in- corporated by reference Kline's earlier conduct. I find giving report is an important function of nurses. It is necessary to maintain continuity and accuracy of pa- tient care. Nonetheless, I conclude the instant record shows there is latitude in the manner in which nurses perform that function. 2. Keller's discipline Keller's 3-1/2 year tenure (August 1981-13 May 1985) was as a utilization review coordinator in the hospital's medical records department. The salient facts concerning Keller's suspension and termination have already been reported during the course of credibility discussion. Some additional facts are relevant. They appear below. Keller readily admitted that he became visibly upset on 2 May when Johnson told him of the change in his work schedule. Johnson testified, consistent with Keller, she told him he had the option of starting his new sched- ule on 6 May or after he returned from his vacation. Keller responded to the option. He said, "What differ- ence does it make, the decision has been made?"25 Earlier, I reported that Johnson asked Keller, on 7 May, why he worked 10 hours the previous day. I indi- cated the record does not show whether Keller respond- 22 Keller's use of the word "decision" undeniably refers to manage- ment's determination to change his schedule SOUTHERN MARYLAND HOSPITAL 493 ed. He did, however, deliver a grievance letter (G.C. Exh. 37) to Johnson over his schedule change. The grievance letter initiated the Employer's internal griev- ance procedure. Keller did not work on Wednesday, 8 May. This was in accord with his former work schedule. On 9 May Keller reported for work He asked Moran and Johnson whether they had a response to his grievance. Johnson indicated she expected to have a response later that day. Johnson and Moran then met with Suriani and Chap- pell, the Employer's personnel director. A decision was made that two disciplinary actions, a warning and a sus- pension, were appropriate. Johnson then prepared the 9 May CAR. Johnson met with Keller later on 9 May. She told him his grievance had been denied at the department level. Johnson delivered the 9 May CAR. Keller added his written comments. He attributed his 10-hour days on 6 and 7 May, and absence from work on 8 May, to his belief he could exercise the option to defer the operation of his new work schedule until after he returned from vacation. The CAR charged Keller with insubordination because he failed to begin his new schedule on 6 May. It also charged him with being absent from work without calling in on Wednesday, 8 May. Keller took his disciplinary time off on 10 May. He telephoned Johnson and orally withdrew his grievance. Later that day, Keller visited the hospital to claim his paycheck. He delivered his resignation letter to Johnson at that time. As earlier described, Johnson tried to dis- suade Keller from resigning. Specifically, Johnson said, "Don, please don't do this." Johnson was "tearful." She asked Keller to reconsider. She suggested Keller permit her to withhold processing the resignation until his return from vacation. Keller persisted. He said he would be unhappy and would hold a grudge each Wednesday he had to work in the future. On Sunday, 12 May, Keller telephoned Johnson about 11 p.m. at her beach home. He did not speak with John- son. Instead, he left a message with Johnson's husband. Keller told Johnson's husband he wanted to rescind his resignation. Further, Keller's message advised Johnson that Keller would begin his 2-week vacation (which originally was to begin on 13 May) and then return to work. These messages were relayed to Johnson. Johnson testified she decided not to permit Keller to rescind his resignation after she discussed the problem with her husband that night. I do not credit this claim. Earlier, I found Johnson did not present candid testimo- ny regarding the attempted rescission. The reasons for this conclusion are contained in my discussion concern- ing Johnson's and Suriani's credibility relative to their testimonial assertions on the attempted resignation rescis- sion. Another reason exists for rejection of Johnson's claim It is inconsistent with Johnson's report to Suriani of Keller's resignation. I have found Johnson rendered such a report on receipt of the resignation. Johnson explained she did so because Keller "was a union person, and, of course, that is important to the hospital to know those things." (Tr. 1364.) Keller testified he called Moran be- tween 8 and 8:30 a.m., 13 May. He told Moran he decid- ed to rescind his resignation. He also told Moran he would not report to work that day because he was going to start his vacation as scheduled. Moran and Johnson corroborated that testimony. Also, Keller credibly testi- fied Johnson called him about 1 p.m. that day. I credit Keller's testimony that Johnson then told him (in Keller's words) that Johnson "had been talking with hospital administration and that they had decided to accept my resignation, and that . . . [the resignation] was effective that day, on Monday, May 13." Keller's version of the 13 May events is a model of clarity when compared to that of Johnson and Moran. Johnson claimed she spoke with Keller in the morning. However, Moran testified that Johnson was late for work that morning; Johnson called her; and she told Johnson Keller called to rescind his resignation and say he would not be at work that day. Moran's testimony concerning 13 May was otherwise confusing. Moran was asked whether Johnson said she would have to, or did, consult with personnel or admin- istration officials concerning what to do about the rescis- sion. Moran's responses were varied. Their totality per- suades me that Johnson did not, alone, decide to reject Keller's rescission because, ultimately, Moran testified she did not have a "clear recollection" of Johnson saying she would have to go to personnel to discuss the rescis- sion but that "the decision had been made to accept your resignation and not let [Keller] . . . rescind it." (Tr. 639— 645.) Johnson told Keller to come to the hospital that after- noon to receive his terminal pay and "clear" out of the hospital. He complied. D. Analysis I. The prima facie case Under Wright Line, 251 NLRB 1083 (1980), affd 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982); approved in NLRB v. Transportation Management Corp., 462 U.S. 393 (1983), the General Counsel has the initial burden to prove that union or other activity protected by the Act was a motivating factor in an employer's de- cision to take adverse action agamst an employee. If the General Counsel meets this burden, the employer then has the burden to show it would have taken the same action even in the absence of the protected activity. The General Counsel and the Union argue that each of the disciplines imposed on Kline and Keller were dis- criminatory and in retaliation for engaging in union ac- tivities. The Employer claims the record contains no probative evidence of unlawful motivation. In any event, the Employer contends the various disciplinary actions were justified and would have been imposed whether or not Kline and Keller engaged in union activities. I am persuaded that more than ample evidence exists to establish a prima facie violation of Section 8(a)(1) and (3) of the Act. I find the General Counsel's burden was satisfied by the following factors. (1) Kline's and Keller's extensive union activities. Both were union organizing committee members for some time before the alleged unlawful discipline. Kline was a 494 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD union observer at both representation elections. Keller was a union observer at the second election. (2) The Employer's knowledge of Kline's and Keller's protected activities is admitted. (3) The Board's findings in Judge Pacht's case (276 NLRB 1349) are evidence of the Employer's unlawful motivation. In Magnesium Casting Co., 259 NLRB 419 (1981), I concluded the evidence sufficiently established that an employee's layoff was discriminatorily motivated. I based this conclusion, in part, on a previous Board Decision and Order involving the same employer. On exceptions, the Board concluded the employer had rebutted the prima facie case. Nonetheless, the Board approved my findings of antiunion hostility derived from the earlier- decided Board decision. Thus, the Board declared the employer's earlier unlawful conduct "lends support to es- tablishing the General Counsel's prima facie case." Mag- nesium Castings, supra at 419. Currently, the Board decision in Judge Pacht's case is before the U.S. Court of Appeals for the Fourth Circuit. The Employer claims that fact negates my reliance on the Board's earlier unfair labor practice findings as pro- bative evidence of the Employer's motivation. I disagree. At this juncture, I am clearly obliged to follow Board precedent. Waco, Inc.,. 273 NLRB 746 fn. 14 (1984), citing Iowa Beef Packers, 144 NLRB 615, 616 (1963). Two violations found by the Board in Judge Pacht's case are particularly impressive indicators of the perva- siveness of the Employer's unlawful motivation. First, the Employer was found guilty of threatening discharge. Such a threat has been identified by the Board (Sangamo Weston, 273 NLRB 256 (1984)) and the Second Circuit Court of Appeals as a "Hallmark" violation of the Act. (See NLRB v. Jamaica Towing, 632 F.2d 208, 212-213 (2d Cir. 1980.)) Second, the Board found the Employer issued discriminatory counseling reports and reprimands to union committee member Vass. That finding, I con- clude, supports the General Counsel's and Union's theory, broadened by independent evidence in the instant record, that the Employer targeted union activists for severe discipline. (4) Briley's uncontradicted testimony that Dr. Chiara- monte referred to Kline as a "dirty rat" and was disloyal because of her union activity. (5) Briley's credited testimony that, after the second election, Dr. Chiaramonte directed department heads to get rid of union organizers. (6) Briley's credited testimony that Kartley and Green- way called Kline a "troublemaker," and Greenway ap- plied the same term to Keller. In Oak Ridge Hospital, 270 NLRB 918, 919 (1984), the Board observed that an em- ployer's "resentment of. . . a [union activist] . . . is evi- dent in [a supervisor's] characterization of [the union ac- tivist] as a 'troublemaker (7) Briley's credited testimony that Johnson admitted to her Johnson had been told to get rid of Keller. (8) Stem's credited testimony that Anderson admitted Palmquist was pressuring her to fire Kline for her union activity. (9) Stem's credited testimony that Anderson admitted she was reviewing Kline's notes for information to use against Kline. (10) Stem's credited testimony that Anderson admitted Palmquist solicited Baicar's complaint letter as another stepping stone to remove Kline. (11) Stem's credited testimony that Anderson admitted she would deny anything to save her position. Anderson made this remark in the context of anticipating the need to give evidence concerning Kline's discharge. I find Anderson's stated intention to fabricate consti- tutes a valid predicate on which to infer the Employer's defense is pretextual. Clearly, if the defense were legiti- mate and valid, the Employer's supervisors would not need to fabricate, lie, or equivocate. (12) Palmquist's solicitation of Baicar's written com- plaint against Kline. Palmquist reflects obedience to the direction to get rid of the union organizers by this re- quest. This document memorialized the events on which Kline was reprimanded and suspended on 25 March. Palmquist's solicitation tends to confirm Anderson's ad- mission that Palmquist requested written documentation as a stepping stone for Kline's removal. (13) Anderson's reliance on Kline's failure to provide a physician's excuse and the narcotics key incident is an effort to enhance the Employer's case. Anderson admitted she had not apprised Kline that the narcotics key incident was the subject of a formal repri- mand. Kline testified she was not shown nor asked to sign the CAR that Anderson prepared concerning the physician's excuse. I credit Kline. This scenario warrants an inference the Employer's stated reasons for its actions are untrue. (14) Anderson's effort to portray Kline as a malingerer by preparing the 14 December 1984 CAR concerning the physician's excuse grossly exaggerated the facts. Earlier, I concluded Anderson strained to picture Kline in a poor light. The credited evidence shows An- derson revised her request for a physician's certificate to one Kline could obtain from employee health. Kline complied. Thus, Kline was not insubordinate, and Ander- son had no warrant to prepare the CAR. Moreover, Anderson's preparation of the 14 December CAR is inconsistent with her admission that Kline had not abused sick leave. Dr. Chiaramonte did not issue the direction to department heads to get rid of union orga- nizers until approximately 3 weeks later. Kline's compli- ance with Anderson's revised request to obtain an excuse from employee health eliminated the need for Anderson to prepare a CAR over the physician's excuse incident. This circumstance persuades me that the 14 December CAR was prepared, and presented in the instant pro- ceedings, as a contrivance in support of the Employer's defense and as justification for the later severance of Kline from her employment. Accordingly, I find Ander- son's preparation and maintenance of the 14 December CAR establish a basis for finding those actions constitute a prima facie 8(a)(3) violation. (15) Pa1mquist's request that Anderson submit written documentation of Kline's failure to give report. On its SOUTHERN MARYLAND HOSPITAL 495 face, that request bears little or no sinister significance. I conclude, however, that the record as a whole requires a different result. The Employer's claim is that a nurse's failure to give report is a grievous and dischargeable offense. That type of discipline could be imposed summarily. In fact, Kline was discharged just that way. This context makes the need for documentation conjectural. I find it reasonable to presume the discharge recom- mendation would have been made during Anderson's 29 March telephone call to Palmquist. Instead, the discharge decision resulted from a separate conference between Anderson and Pahnquist more than a week after the event. 26 Summary action would not have precluded the need for documentation. But its character would be dif- ferent; from merely a report of the event to a summary of what occurred plus the discipline imposed. These circumstances support the inference that Palm- quist asked for the written report as yet another "step- ping stone" on the path to Kline's removal. (16) Johnson's 7 May failure to insist that Keller imme- diately operate under the new work schedule supports an inference the discipline against him was orchestrated by a source other than Johnson. It is consistent with Briley's testimony that Johnson admitted she was told to get rid of Keller. I find it implausible Johnson personally considered Keller insubordinate, as the Employer contends. Johnson learned, on 7 May, Keller continued to wbrk his old schedule. This knowledge came to her the day after he did so. Her reaction was rather moderate. Johnson then did or said nothing indicating she was angered, enraged, or insulted that Keller worked his old schedule the pre- vious day. Instead, Johnson merely "reiterated" Keller should be on his new schedule. Moreover, Johnson did not tell Keller the failure to work the new schedule might result in dire consequences. She gave him no directive de- signed to ensure he would be at work the following day, a Wednesday. These mild reactions are, to me, inconsistent with those reasonably expected from a supervisor who be- lieves a subordinate has defied work orders. Viewed in the light of Johnson's admissions to Briley, I conclude Johnson's testimonial insistence she consid- ered Keller insubordinate immediately on his failure to work the new schedule is a subterfuge to hide the Em- ployer's unlawful motivation reflected in BriIey's testi- mony. (17) Johnson's rejection of Keller's rescission was pre- cipitous and incompatible with the Employer's policies. Keller testified the 31 May effective date in his resigna- tion letter was consistent with employer policy. He claimed the Employer requested employees with his length of service to give 3 weeks' advance notice of intent to terminate employment. Keller was uncontra- dicted on this point. 26 I have considered that Anderson's absence for most of that period was for emergency purposes That fact does not affect my conclusion be- cause of the Employer's adamant insistence on the gravity of the offense Johnson's initial response to Keller's resignation was sympathetic. She encouraged him to reconsider. She of- fered to defer processing the resignation. Keller, howev- er, was adamant. He claimed he would bear a grudge. Nonetheless, Keller obviously reconsidered. He sought to rescind his resignation. Johnson and Suriani testified they did not consider whether Keller's effort to rescind signified abatement of his disgruntled attitude. Instead, the Employer perempto- rily pressed on to accept the resignation. In so doing, the Employer accelerated the resignation's effective date. The Employer's rejection of the rescission would not be significant in other circumstances. However, I find the context in which it occurred tends to give it an un- lawful character. That context is comprised of (a) the background of antiunion hostility; (b) the credited ex- pressions of animus toward Keller for his union activity; (c) the instruction that department heads get rid of union activists; and (d) the unsuccessful efforts of Johnson and Suriani to make it appear that Johnson spontaneously re- jected the rescission. I fmd these circumstances give meaning to the precipitous rejection of Keller's resigna- tion rescission. The net effect of the Employer's action was to deprive Keller of his employment. Such a result, in the instant circumstances, is tantamount to a constructive discharge. The Employer's refusal to accept Keller's rescission shows the cessation of his employment was involuntary. See Crystal Princeton Refining Co., 222 NLRB 1068, 1069 (1976), for the elements of a constructive discharge. The 17 factors immediately above, in their totality, comprise the elements of the General Counsel's prima facie case: They show that Kline and Keller had been engaged in protected activities; the Employer had knowledge of that activity; harbored strong and perva- sive antiunion animus; and engaged in a persistent and studied effort to discipline Kline and Keller. I find that discipline could not help but have an effect of discourag- ing employees from exercising their Section 7 rights. 2. The defense I now turn to consideration of the Employer's Wright Line burden of proving it would have disciplined Kline and Keller even in the absence of their union activities. I conclude the Employer has not sustained its burden. The Employer contends its disciplinary actions against Kline and Keller were imposed for good cause. The General Counsel and the Union assert the Employer's defenses are pretextual. The Employer has adduced a colorable -defense to each of the alleged unfair labor practices. This is so be- cause the Employer ostensibly based the disciplines on incidents in which Kline and Keller actually had been in- volved. Nonetheless, I find the defenses do not withstand detailed examination. The defense relies, in large measure, on the credence of the Employer's witnesses. I have found Suriarti, Pahn- quist, Anderson, and Johnson internally inconsistent, self- contradictory, evasive, and prone to exaggerate, and depict events in the Employer's favor. Generally, each provided implausible explanations for their actions. I 496 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD conclude these findings, alone, are sufficient basis to de- termine the defenses have no merit. My credibility resolutions cast serious doubt on the Employer's motivation. The credibility assessments nulli- fy the essence of the Employer's defense that Kline and Keller were unsatisfactory employees. For example, my fmdings dictate no reliance can be placed on Anderson's protests that Kline's performance was substandard. Like- wise, I am unable to accept Johnson's claim that Keller was insubordinate. I fmd the testimonial character of the Employer's prin- cipal witnesses reflect a persistent effort to obscure the real motive which underlay, and to present false justifica- tions for, its actions. Thus, I conclude the Employer's stated motives are false. Accordingly, I infer that the Employer was motivated by discriminatory consider- ations when it imposed the various disciplines on Kline and Keller (Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466, 470 (9th Cir. 1966). This inference effectively precludes a finding that the defense has merit. The integ- rity of the Employer's defense has been vitiated by my inability to rely on the major defense witnesses. The matter does not end here. The defense contains other fatal flaws. I shall briefly discuss some of the more prominent defects in defense as they pertain to each of the alleged unlawful activities. (a) Kline's December 1984 reprimand The Employer produced evidence to show written warnings were given to employees for such infractions as an unauthorized absence, abuse of sick leave, and an ap- parent inadvertent failure to report to work. (See R. Exhs 14, 16, 20 and 24.) The General Counsel and the Union do not dispute the existence, or validity, of the Employer's practice of issuing written warnings for good cause. Nonetheless, I find the Employer's evidence re- garding this alleged unlawful discipline does not sustain its burden. My earlier findings reflect that absolutely no factual basis existed for this discipline. Kline produced precisely what Anderson requested in her revised instruction. The relevant evidence, albeit circumstantial, which surround- ed the preparation of the 14 December CAR reasonably leads to the conclusion the reprimand was prepared after the fact to build a case against Kline.27 I conclude this record does not contain sufficient cred- ible evidence that Kline committed the rules infraction charged against her in the 14 December CAR. This con- clusion, in turn, impels the additional conclusion that the defense to this alleged violation is pretextual. (b) Kline 's 25 March reprimand and suspension I have earlier found Palmquist solicited Baicar's writ- ten complaint regarding Kline's treatment of Baicar's mother as part of the Employer's effort to pursue its un- lawful goals. 27 R. Exhs 14, 16, 20, and 24, on their face, show the offending em- ployee was confronted with, and given immediate knowledge of, the dis- cipline. In contrast, the credible evidence shows Anderson did not con- front Kline with, nor advise her of, the fact disciplinary action was being taken The Employer cites three instances of discipline against nurses for offenses that the Employer equates with Kline's conduct surrounding Baicar's complaint. These purportedly comparative disciplines appear as CARs in evidence. (See R. -Exhs. 11, 12, and 44.) The General Counsel claims the evidence shows Kline was treated in a disparate manner (see R. Exhs. 11-13.) The General Counsel argues the available evidence shows that similar incidents of nurse misconduct produced only written warnings, and not suspensions. The relevant CARs show that only written reprimands were imposed on nurses, J. Guerlick in April 1982 for physically abusing a patient and telling him to "shut up"; Isle Beasley in November 1983 for being discourteous to a patient; Judy Liese, in March 1984, for exhibiting "in- appropriate behavior" and being "uncooperative" in re- fusing to admit a patient to the hospital; and again on Isle Beasley, in September 1985, for displaying a noncar- ing, unreasonable, and overbearing attitude toward a pa- tient (see R. Exhs. 11-13 and 44). The above-cited documentary evidence is sparse. Yet, I find it illuminating. The parties' arguments require that I measure the disciplines against the comparative severity of the offenses. I decline the parties' invitation. I cannot indulge in such an evaluation. I would improperly substi- tute my judgment for those managerial decisions which appropriately lie with the Employer's supervisors. How- ever, the evidence permits me to use an objective stand- ard by which to decide whether Kline's discipline re- flects she had been subjected to disparate treatment. Thus, the record contains two CARs for Isle Beasley (R. Exhs. 12 and 13). Beasley was found to have niistreated patients twice. Beasley received only a written reprimand for each of- fense. Beasley's derelictions occurred 3 years apart. But Supervisor J. C. McCormick was a participant in each reprimand. Therefore, the Employer cannot claim it lacked an institutional memory of Beasley's first infrac- tion. Also, Beasley's second warning contains an explicit acknowledgment that her "non-caring portrayal has been discussed with . . . [her] previously." Beasley's second reprimand indicates she was merely counseled about her attitude. I conclude the Employer's imposition on Beasley of only written warnings for multiple offenses that elicited patient and family complaints reflects that Kline was treated differently in significant ways.28 Kline was sus- pended for 3 days for a first offense in the same category as Beasley's two offenses. Moreover, Anderson and Palmquist revised the CAR given Kline for the Baicar incident to warn that Kline was subject to termination from employment for further offenses. Such a warning does not appear on either of the CARs issued to Beasley. Instead, I describe the Employer's treatment of Beas- ley as it appears in the record. I do not intend that de- scription to reflect my view that multiple violations nec- essarily should give rise to greater discipline; or that fewer infractions should receive lesser discipline. 28 I do not mean to substitute a wholly quantitative analysis for that quality based analysis that I decline to make. Such substitution, also, would impinge on managerial judgment SOUTHERN MARYLAND HOSPITAL 497 The backdrop of the Employer's antiunion hostility persuades me the difference in its treatment of Kline and Beasley for offenses of similar character are convincing indicia the defense is pretextual I conclude the Employ- er's evidence relevant to Kline's 25 March reprimand and suspension does not suffice to rebut the powerful evidence that supports the General Counsel's prima facie case. (c) Kline's discharge The Employer argues that giving "the inter-shift report is an integral part of nursing and that failure to give report is a serious offense." I have found giving report is, indeed, an important job task of nurses. I have also found Palmquist and Anderson nonetheless exagger- ated the seriousness of Kline's neglect to give report on patient Biggs. Anderson characterized Kline's failure to give report. Anderson claimed Biggs was put "at risk" and an intoler- able potential for harm to a patient resulted from Kline's omission. I have already rejected Anderson's self-serving exaggerations in this regard. However, I shall assume Anderson was both correct and credible in her testimo- ny, for purposes of my assessment of the Employer's de- fense to Kline's discharge. Initially, I conclude the record shows that patients fre- quently are "at risk." Thus, Anderson reluctantly con- ceded that greater potential for patient harm exists when a nurse makes certain medication errors than from a brief delay in giving report. The documentary evidence shows that medication errors consist of administering an incorrect type or quan- tity of drug. Several examples of medication errors are represented by CARs in evidence. These records show no nurse received discipline greater than a written repri- mand and/or counseling for such infractions. The nature of discipline was not changed even after a nurse commit- ted multiple medication errors (see G.C. Exhs. 44 and 52). Yet, I fmd the totality of documentary evidence warrants a conclusion, which I make, that medication errors are serious mistakes. In some cases, they bear life- threatening potential (see G.C. Exh. 20, nurse Labriola to be discussed further below). The records show that some nurses in CCU (Kline's work area) merely were counseled for medication errors (see HIRs G.C. Exhs. 63 and 68-72). But no disciplinary CARs were placed into those nurses' records. I find the Employer's discipline of nurse Labriola note- worthy. The Employer suspended Labriola for 1 day be- cause she administered the wrong drug to a CCU patient in January 1985. The patient suffered respiratory arrest approximately 3 minutes after Libriola's error. Shortly after this, the patient died. The attending physician indi- cated, on Labriola's HIR, it was unclear whether the medication error caused the death. I find Labriola's situation a glaring example of the dis- parity of discipline imposed on Kline. The Employer contends the cases are distinguishable because Labriola's error was isolated and unintentional. I find the Employ- er's application of such a standard irrelevant. The critical issue is whether the Employer imposed disparate disci- pline on nurses whose actions jeopardized patient wel- fare. Neither a nurse's willfulness nor the frequency of violation is germane. I have accepted Anderson's stated "at risk" standard for analysis purposes. That standard directly addresses the crucial subject. Anderson admitted that Labriola's medication error created a greater risk, and was more se- rious, than failure to give report. Anderson explicitly tes- tified that Labriola's error bore a life-threatening poten- tia1. 2 9 I find Kline was discharged for an error that did not place patient Biggs in as much jeopardy as Labriola's error had to her patient. There is no evidence that La- briola was a union activist. I conclude this context shows that Labriola's lesser discipline is evidence the Employer treated Kline in a disparate manner, inimical to the Em- ployer's Wright Line burden." Finally, Kline was, undisputedly, the only nurse dis- charged for failure to give report. The record contains four situations that directly involve that omission. They are (1) testimony of nurse, C. Smith, that the Employer prohibited nurses from working beyond their designated shifts in 1982, even if the proscription resulted in failure to give report; (2) testimony of Briley that leaving with- out giving report did not justify filing an incident report; (3) nurse D. Laurey's practice of sometimes giving oral reports to nurses, other than the nurse directly replacing her, because Laurey's working hours were adjusted to be different from the usual nursing shifts; and (4) the disci- plMe of nurse M. Asuncion for failing to give report. The Employer argues none of the above issues justifies finding it engaged in disparate conduct. The state of the record, and my earlier findings and conclusions, require I deal only, in depth, with the Asuncion matter." The Employer issued a written reprimand to Asuncion in October 1984. The CAR and attached HIR (G.C. Exh. 23) show Asuncion vacated the hospital during midshift, gave no report on any patient, failed to chart vital signs and write a postoperative recovery report on one patient, and neglected to properly attend to that pa- tient's intravenous and surgical irrigation fluids. Palm- quist approved the reprimand. The General Counsel argues the Employer's discipline of Asuncion is a blatant example of disparate treatment. The Employer contends the Asuncion reprimand shows that failure to give report is serious. Further, the Em- ployer contends a written reprimand is an appropriate re- sponse to a nurse's first serious offense. Thus, the Em- ployer implicitly urges the Asuncion situation is distin- 29 In this context, I conclude the doubt that Labnola's error caused the patient's death does not support the Employer's defense. 20 There is other evidence that I conclude supports the proposition, and my finding, that the Employer treated Kline in a disparate manner (See G.C. Exhs. 66-68 and R Exh 29, E. Christy; G C. Exh 60, G Clawson; G.C. Exh. 58, R. Exh. 33, G. Pyle; and G.C. Exh. 35, M. Southerland ) I find this evidence shows the Employer countenanced nu- merous errors that did not result in discipline as severe as Kline's. I conclude C Smith's and Briley's testimony on the "giving report" issue not highly probative I need not consider Laurey's situation be- cause, contrary to the Employer, I can find no explicit General Counsel claim this matter is urged as an example of disparate treatment. 498 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD guishable from Kline's, inasmuch as Kline's discharge was imposed for her fourth offense.32 I find merit to the General Counsel's position. Asun- cion's failure to give report demonstrably created numer- ous gaps in patient care. Those gaps loom as an assault upon the Employer's professional nursing standards as described by Anderson and Palmquist. I note particularly that Asuncion gave absolutely no report on any patient. Kline, at least, gave report on her regular patients. Kline's omission related otly to Biggs. Moreover, the documentation of Asuncion's errors establishes the de- tails of how patient care was adversely affected by her omission. In contrast, the record is devoid of evidence that Kline's failure to give report had any adverse effect. No evidence was presented to refute Kline's testimony that Ellickson needed very little information from her. I find this context makes it virtually inescapable that the Employer dealt with Kline in a disparate way. Palmquist's explanation is unpersuasive. It is inconsist- ent with the "at risk" standard. Moreover, her explana- tion ignores her own testimonial concession (Tr. 1277) that the charge nurse in CCU gives a general report, albeit sketchy to incoming nurses. Finally, I fmd disingenuous the claim Kline's greater discipline was justified because it had been imposed for her fourth offense. That claim literally exposes the frailty of the Employer's defense. My earlier findings show that two of the incidents the Employer relied on to discharge Kline were exaggerated or contrived to support the dis- charge. (I refer to the December 1984 reprimand and the narcotics key incident.) In light of my findings, reliance on those incidents to justify the Employer's different treatment of Kline compared to Asuncion (and other nurses) only serves to weaken the defense. On all the foregoing, I find the evidence insufficient to establish that the Employer would have issued and main- tained Kline's 14 December 1984 reprimand; reprimand- ed and suspended Kline on 25 March; or discharged her, absent her union activity. Accordingly, I fmd the Em- ployer violated Section 8(a)(3) and (1) of the Act when it engaged in each of these activities and actions against Kline. (d) Keller's warning and suspension The Employer contends its 9 May written warning to, and 1-day suspension of, Keller "was a measured and ap- propriate response" to Keller continuing to work his old schedule on 6 and 7 May (the claimed insubordination) and for absenting himself from work on Wednesday, 8 May, without calling in. The Employer claims the warn- ing and suspension were justified because Keller's actions were willful and defiant of superior authority. The Employer produced no evidence of a disciplinary practice or policy applicable to such offenses. Nor did 82 In this connection, Asuncion's supervisor wrote on the disciplinary CAR, "This is the first incident of this type for . . [Asuncion] and some extenuating circumstances did exist . . ." (There is no dispute that Asuncion left the hospital to attend to an emergency telephone call that her child was very ill.) Moreover, Palmqmst testified failing to give report in Asuncion's medical/surgical unit is less critical than in Kline's CCU unit, because the former nurses work as a team; whereas CCU nurses work on an individual basis the General Counsel adduce evidence designed to show a disparate character to Keller's 9 May discipline. I shall examine the defense in a light most favorable to the Employer. Thus, I presume, for analysis purposes, that the warning and suspension conform to past practice or are in accord with the Employer's disciplinary policy. I find the credited, probative evidence does not sustain the Employer's evidentiary burden. My earlier findings prevent the Employer's contentions from being persua- sive. I have concluded Keller simply was not insubordi- nate. There is no credible evidence that he had been dis- obedient, wittingly or otherwise, to Johnson. In this con- text, I fmd the Employer's defense based on distortions of fact and grossly exaggerated. Clearly, the claimed predicate for Keller's warning and suspension is absent. Therefore, the Employer had no reason to discipline Keller, regardless of its practices or policies. I conclude that all the relevant circumstances show the Employer grasped on Keller's misunderstand- ing of Johnson's discussion with him concerning the change in his work schedule as a pretext to hide the real reason he was selected for discipline. Thus, I fmd the to- tality of relevant evidence does not effectively rebut the prima facie case. (e) Keller's "discharge" The Employer has not produced evidence of its earlier reactions to employee attempts to rescind resignations. However, there is evidence that nurse R. Macy twice submitted resignations; the first in June 1982, and the second in April 1984. Macy submitted resignation letters to Kartley on each occasion. Kartley deferred formal action in both cases. Kartley credibly explained she had not immediately ac- cepted Macy's resignations because Macy was an "excel- lent nurse." The Employer claims the Macy situation cannot be ap- propriately compared to the treatment accorded Keller. The Employer gives various reasons for this contention. I shall not deal with these reasons because I conclude I need not refer to Macy's situation to assess either the merits of the Employer's defense or any General Counsel claim that the Employer's treatment of Macy is evidence the Employer dealt with Keller in a disparate manner. Instead, my assessment of the degree to which the Employer has satisfied its Wright Line burden can be, and is, solely based on the incredulous testimony of Johnson and Suriani concerning the circumstances of re- jection of Keller's effort to rescind his resignation. I find that testimony so grossly implausible, in all the attending circumstances, that its transparancy is fatally destructive to whatever evidence (such as Macy's) the Employer relies on for exoneration. All the credited, plausible, pro- bative evidence persuades me the Employer seized on the fortuitous situation presented by Keller's resignation to "rid" itself of another union protagonist. The Employer, in part, bases its defense on a claim Keller's "discharge" was justified because his conduct paralleled that of a discharged employee in Successful Creations, 202 NLRB 242 (1973). There, the Board re- versed its judge's findings an employer unlawfully dis- SOUTHERN MARYLAND HOSPITAL 499 charged its employee. In Successful Creations, the Board found the Employee lost the Act's protection because he challenged his employer's authority to fix overtime hours and engaged in an outright refusal to work overtime, except at his convenience. I find material factual distinctions between the case at bar and Successful Creations. Keller did not engage in the contemptuous conduct present in Successful Creations. Keller believed he was given an option to defer the be- ginning of his new schedule until return from vacation. I have found Johnson's discussion with Keller makes Keller's belief reasonable. He did not flatly refuse to work the new schedule. Keller's "challenge" to authority was polite. He merely filed a grievance in accord with procedures in place at the time. Therefore, I conclude, contrary to the Employer's contention, that the relevant credited evidence before me does not show that "Keller's behavior closely resembles that of the employ- ee in Successful Creations." I find no valid parallel exists. On all the foregoing, I conclude there is insufficient evidence to sustain the Employer's burden to show it would have rejected Keller's attempt to rescind his resig- nation, absent his union activities. Accordingly, I find the evidence sufficient to conclude, as I now do, that Keller was constructively discharged on 13 May (Crystal Princeton Refining Co., supra), in violation of Section 8(a)(3) and (1) of the Act.33 On the above findings of fact, conclusions, and the entire record, I make the following CONCLUSIONS OF LAW 1, Southern Maryland Hospital Center is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) and a health care institution within the meaning of Section 2(14) of the Act. 2. Office and Professional Employees International Union, Local 2, AFL—CIO is a labor organization within the meaning of Section 2(5) of the Act. 3. The Employer discriminated against employees in violation of Section 8(a)(3) and (1) of the Act by issuing Kline a reprimand dated 14 December 1984 and thereaf- ter maintaining it in Kline's records; by reprimanding and suspending Kline on 25 March 1985; and by dis- charging Kline on 9 April 1985, all because she engaged in union activities. 4. The Employer discriminated against employees in violation of Section 8(a)(3) and (1) of the Act by issuing a warning to, and suspending, Keller on 9 May 1985; and by constructively discharging Keller on 13 May 1985, all because he engaged in union activities. 5. The above unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 33 The Employer claims such a finding is improper because there was a "substantial period of time between Keller's union activities and the events of May." I disagree. Assuming those activities ended at the second election in December 1984, only 5 months had elapsed until the discrimi- natory treatment. I find that period of tune not as substantial as the Em- ployer contends In any event, considerably longer periods of time be- tween protected activity and discipline have not barred findings of dis- criminatory conduct (Bliss & Laughlin Steel Co. 266 NLRB 1165, 1172 fn. 6 (1983)) THE REMEDY My findings that the Employer has engaged in certain unfair labor practices require that it shall be ordered to cease and desist from that activity and take certain af- firmative action designed to effectuate the policies of the Act. To remedy the unlawful discharges and suspensions, I find it necessary to order the Employer to offer Keller and Kline immediate and full reinstatement to their former jobs or, if those positions no longer exist, to sub- stantially equivalent positions without prejudice to their seniority or other rights, privileges, and benefits. Also, the Employer shall be ordered to make Keller and Kline whole for any loss of earnings each may have suffered as a result of the Employer's unlawful actions. Loss of ear- nigns shall be computed as prescribed in F. W. Wool- worth Co., 90 NLRB 289 (1950), and Florida Steel Corp., 231 NLRB 651 (1977).34 Also, the Employer shall be ordered to remove from its records any reference to the unlawful discharges, sus- pensions, reprimands, and warnings. The Employer shall inform Keller and Kline, in writing, that such references have been removed and that the conduct found unlawful will not be used as a basis for further personnel actions against them (Sterling Sugars, 261 NLRB 472 (1982)). The unlawful discharges and suspensions are hallmark violations. They reflect the Employer's continuing disre- gard of the Act's provisions. The Board's findings in Judge Pacht's case are evidence of the Employer's pro- clivity to violate the Act. Therefore, I conclude it is ap- propriate that the Order contain broad proscriptive lan- guage (Hickmott Foods, 242 NLRB (1979)). Accordingly, the Employer shall be ordered to refrain from, in any manner, interfering with, restraining, or coercing its em- ployees in the exercise of their Section 7 rights. On these findings of fact and conclusions of law and on the entire record," I issue the following recommend- ed" ORDER The Respondent, Southern Maryland Hospital Center, Clinton, Maryland, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Discriminating against employees by discharging, suspending, reprimanding, or issuing warnings to them because they engage in union activities. (13) In any other manner interfering with, restraining, or coercing its employees in the exercise of any of the rights guaranteed them by Section 7 of the Act. 34 See generally Ins Plumbing Co., 138 NLRB 716 (1962). 35 The General Counsel asserts' a so-called visitatorial clause (G.0 Exhs. 50 and 51) should be included in the Order. I disagree I find the record does not show it likely the Board would have difficulty obtaining compliance or enforcement of any Order it should issue in this case Indeed, the record reflects the Employer complied with the U S district court's subpoena enforcement order. 36 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. 499B DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer Donald L. Keller and Carol A. Kline mime- diate and full reinstatement to the former job held by each or, if that job no longer exists, to a substantially equivalent position, without prejudice to his or her se- niority or other rights, privileges, and benefits; and make each of them whole, with interest computed in accord- ance with the formula set forth above in the remedy sec- tion for any loss of earnings each may have suffered as a result of the unlawful discharges and suspensions. (b) 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. (c) Remove from its files all references to the dis- charges, suspensions, reprimands, and warnings found unlawful here, and notify Kline and Keller, in writing, that this has been done and that evidence of the unlawful conduct will not be used as a basis for future personnel actions against them. (d) Post at its hospital at Clinton, Maryland, copies of the attached notice marked "Appendix." 37 Copies of the notice, on forms provided by the Regional Director for Region 5, after being signed by the Respondent's author- ized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecu- tive days in conspicuous places including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 37 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" PAGE 499C INTENTIONALLY LEFT BLANK.