Bariatric Clinic

National Labor Relations Board - Board Decisions

Apr 11, 1979

241 N.L.R.B. 830 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Bariatric Clinic and Kathleen B. Gross. Case 6-
CA- 10873
April 11, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS PENELLO
AND TRUESDALE
On January 16, 1979, Administrative Law Judge
George F. Mclnerny issued the attached Decision in
this proceeding. Thereafter, Respondent and the
General Counsel filed exceptions and supporting
briefs, and Respondent filed a brief in response to the
General Counsel's exceptions.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the Respondent, The Bariatric Clinic,
Coraopolis, Pennsylvania, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
said recommended Order, as so modified:
1. Substitute the following for paragraph (a):
"(a) Discharging any employee for engaging in
concerted activities protected by Section 7 of the
Act."
2. Insert the following as paragraphs (b) and l(c):
"(b) Threatening its employees with the closure of
its offices if they select a union to represent them.
I Respondent has requested oral argument. This request is hereby denied.
as the record, the exceptions, and the briefs adequately present the issues and
the positions of the parties.
2 In his recommended Order, the Administrative Law Judge inadvertently
failed to provide that Respondent cease and desist from discharging employ-
ees for engaging in concerted activities protected by Sec. 7 of the Act. In
addition, although the Administrative Law Judge found that Respondent
violated Sec. 8(a I) when it threatened to close its offices if the employees
selected the Union to represent them, in his recommended Order he inadver-
tently failed to refer to the Union. Accordingly, we have modified the Ad-
ministrative Law Judge's recommended Order to correct these inadvertent
errors and conform it to the Board's customary remedies for violations of the
kind founnd herein.
Finally, we reject the General Counsel's exception to the Administrative
Law Judge's failure to provide that interest on backpay in this case be com-
puted at 9 percent. It is the Board's established policy that interest on back-
pay be computed at the rate prescribed in Florida Steel Corporation, 231
NLRB 651 (1977).
"(c) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of their
rights guaranteed by Section 7 of the Act."
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
After a hearing in which all parties had the opportu-
nity to present their evidence, it has been decided that
we violated the law, and we have been ordered to
post this notice. We intend to carry out the Order of
the Board and abide by the following:
Section 7 of the Act gives all employees these
rights:
To organize themselves
To form, join, or help unions
To act together for collective bargaining or
other mutual aid or protection
To bargain collectively through representa-
tives of their own choosing
To refuse to do any or all of these things.
WE WILL NOT discharge any employee for en-
gaging in concerted activities protected by Sec-
tion 7 of the National Labor Relations Act.
WE WILL NOT threaten employees that we will
close our offices if they select a union to repre-
sent them.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the ex-
ercise of the rights guaranteed them by Section 7
of the National Labor Relations Act.
WE WILL offer Kathleen B. Gross immediate
and full reinstatement to her former job or, if it
no longer exists, to a substantially equivalent po-
sition, without prejudice to her seniority or other
rights and privileges, and make her whole for
any loss of pay she may have suffered as a result
of the discrimination practiced against her, plus
interest.
THE BARIATRIC CLINIC
DECISION
STATEMENT OF THE CASES
GEORGE F. MCINERNY, Administrative Law Judge:
Based on a charge filed on January 20, 1978, by Kathleen
B. Gross, an individual, the Regional Director for Region 6
of the National Labor Relations Board issued a complaint
241 NLRB No. 128
830
THE BARIATRIC CLINIC
alleging that The Bariatric Clinic, herein referred to as Re-
spondent or the Company, violated Section 8(aXI) and (3)
of the National Labor Relations Act, as amended, herein
referred to as the Act, by discharging Kathleen B. Gross
because of her activities for and on behalf of Service Em-
ployee's International Union, Local 585, AFL-CIO, herein
referred to as the Union, and for engaging in protected con-
certed activities.' Pursuant to such complaint, a hearing was
held on October 19, 1978, at Pittsburgh, Pennsylvania, at
which time all parties had the opportunity to examine and
cross-examine witnesses, to present evidence, and to argue
orally.2 Following the close of the hearing, General Counsel
and Respondent filed briefs, which have been carefully con-
sidered.
Upon the entire record in this case, including my obser-
vation of the witnesses and their demeanor, I make the fol-
lowing:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is a Pennsylvania corporation which oper-
ates a chain of four clinics in the Pittsburgh area devoted to
the business of assisting people to lose weight. The clinic
involved here is located in Greensburg, Pennsylvania. In
the past 12 month period, Respondent received in excess of
$500,000 in gross revenues and received goods valued in
excess of $3,000 shipped directly from points outside the
Commonwealth of Pennsylvania for use within the Com-
monwealth. The complaint alleges, the answer admits, and
I find that at all times material herein The Bariatric Clinic
has been an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent's answer to the complaint herein, by denying
knowledge, called into question the status of Service Em-
ployees' International Union, Local 585, AFL-CIO, as a
labor organization. Florence Stirbis, a business representa-
tive of Local 585, testified that it admits employees to mem-
bership and to participation in its activities and exists, at
least in part, for the purpose of dealing with employers con-
cerning wages, hours, and other conditions of employment.
Accordingly, I find that Service Employees' International
Union, Local 585, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
Ill. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Discharge of Kathleen B. Gross
Sometime during the night of December 7 and 8, 1977,
Respondent's Greensburg office, located in a trailer-like
building on North Greengate Road in Greensburg, was
broken into. The break was discovered a little after 8
o'clock on the morning of December 8 by Joyce Graham, a
I The complaint was amended at the hearing to allege an additional in-
stance of conduct allegedly violative of Section 8(aXl) of the Act.
2 Certain errors in the transcript are hereby noted and corrected.
full-time registered nurse employed by Respondent. Gra-
ham became alarmed and telephoned Kathleen B. Gross,
who was employed as a "medical assistant" and was sched-
uled to report at 10 o'clock on the same morning. Gross, in
turn, called the State Police and herself came immediately
to the Greensburg office.
Later in the day, following a lengthy discussion between
Graham, Gross, and another Greensburg employee, Sharon
Koter, a part-time registered nurse, on their safety and
what they could do about it, they determined that they
would ask that the hours of the clinic be changed' to permit
the employees to leave before dark, or to have double cov-
erage in case management insisted on retaining the 6
o'clock closing hour.
The next day, December 9, 1977, after further discus-
sions, Gross telephoned Linda Coweison, Respondent's su-
pervising registered nurse, and told her what the three
women had decided they wanted to do. Coweison replied
that there was no way the hours could be changed but that
she would speak to Respondent's secretary-treasurer and
administrative officer, Frank Eggie, about changing the
work schedule to provide double coverage up to 6 o'clock.
As a result of this call, a number of other calls were made
on that day, and on the following Monday and Tuesday,
December 12 and 13, from the three women at Greensburg.
sometimes with all three on the same line at once: and from
Coweison and Eggie. It is not necessary to go into detail on
these conversations except to say that they all concerned
various aspects of a new schedule which would allow two of
the women to be present together each evening up to 6
o'clock.
Coincidentally, on December 8 or 9, Florence Stirbis,
who, as noted above, is a business representative for the
Union, was present in the Greensburg office as a customer.
In conversation, Stirbis learned about the break-in and the
problems the employees were having, and she suggested to
Gross that if they (the employees) were having problems
"they should maybe try to organize into a union." Gross
expressed an interest in this, and Stirbis told her that she
would have to contact all of the employees of Respondent
in all its offices and see if they were interested in organizing
before further steps could be taken.
Thereafter, on the afternoon of December 14, all of Re-
spondent's employees, including Eggie's secretary, were
contacted by Graham and Gross, and a meeting set up for
the evening of December 15 in Monroeville, a nearby com-
munity. About 14 out of Respondent's 20 or so employees
attended the meeting. Gross and at least one other em-
ployee signed union authorization cards at that time, but
the record reveals nothing further either about the meeting
or about further union activity among Respondent's em-
ployees. Eggie's secretary did not attend.
Meanwhile, during the telephone conversations on De-
cember 9 and 12, the employees at Greensburg indicated,
possibly in strong terms, their concern with the new sched-
ule. In fact, at one point on December 9, the three employ-
ees, who were on the phone together, told Eggie that they
would not work until 6 o'clock if they had to work alone
3There is no dispute that the hours when the clinic at Greensburg was
open were from 8:30 a.m. to 6 p.m. This closing time was necessary because
many customers visited the clinic after work,
831
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and would not open the office on Monday, December 12.
They did not carry out this threat, and so informed Cowei-
son on December 9, but on December 12 Eggie instructed
Coweison to place an advertisement in the Greensburg lo-
cal newspaper to seek replacements for all three of the em-
ployees at Greensburg.
By December 13, the Greensburg employees had appar-
ently reconciled themselves to the new schedule, although
Koter could not adjust to it and profferred her resignation.
They informed Coweison of this, but Eggie felt that a firmer
understanding had to be reached. Accordingly, he and
Coweison went out to the Greensburg office on December
14.
At that time Eggie met with Koter, Graham, and Gross
in the kitchen area, while Coweison took care of Respon-
dent's customers (also referred to in the record as patients
or clients). Eggie delivered an ultimatum to the effect that
the clinic would remain open until 6 p.m. and "if they chose
not to work those hours they could terminate their employ-
ment." Koter responded that she was in fact going to termi-
nate her employment upon 2 weeks' notice, but the others,
Gross and Graham, agreed to the new schedule.
Before the meeting terminated, Eggie dismissed Koter
and Graham and informed Gross privately that he was not
doing this intentionally to hurt her or to cause her any
hardships.
In fact, however, Eggie's thoughts were traveling in a
much different direction from his sympathetic words. In the
car on the way back from the Greensburg office, he in-
structed Coweison to "go through with the ad, to take the
applications, to interview the people and we would replace
the employees in Greensburg." He did this, as he stated,
because he was "not satisfied with the response" he got
from the employees at the December 14 meeting. Eggie tes-
tified further that he was concerned by the "group action"
of the employees; in response to my question, stated that he
felt hurt, in a business sense, by this group action of the
employees; and in response to a further question by me as
to whether he took the action against Gross based in part
on that, he replied, "That had a lot to do with it, an awful
lot."
As instructed, Coweison accepted calls in response to the
advertisement which appeared on December 14, set up in-
terviews for the following Monday, December 19, and se-
lected a replacement for Gross on that day. On December
20, the new employee reported to the Respondent's Squirrel
Hill office to begin her orientation. There were no plans at
that time to replace Graham, but Coweison testified that it
was Respondent's intention to do so at a later date. Appar-
ently Graham's voluntary resignation on February 10,
1978, forestalled any actions directed to that end.
The employees at Greensburg got wind of Respondent's
action in hiring a replacement for Gross sometime on De-
cember 20. Graham thereupon called Coweison to ask why,
and Coweison responded that they (management) felt that
"Kathleen was the ringleader, she was the rotten egg and
Frank thought it was best to get rid of her." Coweison did
not deny this conversation. Graham notified Gross of this
conversation, and the latter in turn called Coweison. Cowei-
son evaded Gross' question about why she was fired and
stated that she was acting on Eggie's instructions.
On December 21, Gross called Eggie and asked him why
she had been fired. He replied that she knew what she had
done behind his back and repeated that phrase several
times without elaboration. Finally he stated that he was
"just dissatisfied" with her attitude.'
The General Counsel maintains that the facts of this case
warrant findings that Respondent knew about the union
activity, knew about Gross' involvement in it (primarily be-
cause of the telephone call from Gross to Eggie's secretary),
and discharged her because of it. This may be so, although,
as noted above,' Eggie's own testimony admits that the de-
cision to fire all the Greensburg employees, including
Gross, was made, at the latest, in the car on the way back
from the meeting at Greensburg on December 14, at a time
before he returned to his office and, indeed, before the tele-
phone call to his secretary announcing the union meeting
was made.
However, I do not feel that it is necessary in order to
effectuate the purposes of the Act that I make a finding on
this issue. I do this because I find that Respondent violated
Section 8(a)(l) of the Act in discharging Kathleen B. Gross
on account of her engagement in protected concerted ac-
tivity. Since the remedy is identical with that appropriate
for a finding of an 8(aX3) violation, economy and efficiency
make it superfluous for me to expend the time necessary to
come to a conclusion on the 8(a)(3) allegation.
The record evidence, as recapitulated herein, shows that
Gross and the others were engaged in concerted activities
concerning their safety and working hours. They may have
threatened to engage in a work stoppage, or even to quit,
but nothing in this record shows that they did anything that
would remove their activities from the protection of the
Act. They did not, in fact, quit, and did not engage in any
work stoppage, but negotiated a settlement with their em-
ployer, even though one employee had to give notice of her
intention to resign because of the new schedule. Contrary to
Respondent's assertion in its brief, there is no evidence il-
lustrative of its assertion that Graham and Gross, or either
of them, refused to accept the new schedule at the meeting
in Greensburg on December 14. Eggie's testimony on this
point, even if it is viewed in a light most favorable to Re-
spondent, would lead to the conclusion that Graham and
Gross did not disagree with the new schedule, although
Eggie was not convinced "that they had accepted it fully.
They didn't give me that assurance." However, Eggie also
testified that they gave him "the impression" they had ac-
cepted the schedule. Thus, Respondent is not warranted in
postulating from this that the women "refused to continue
the standing hours of operation."'
Eggie's dissatisfaction with the response of Graham and
Gross led to his decision, while returning to his office, to
terminate them all. It is this, coupled with his resentment at
what he accurately described as the employees' "group ac-
tion," which led to his decision. In his own words, he felt
hurt "in a business sense" by this action, and this factor had
' Eggie's version of this conversation is quite different. He said that he told
her that she was an unsatisfactory employee, based on delays in her reports
reaching him. However, this testimony is largely contradicted by Coweison.
In any event, in view of my disposition of this matter, I do not find it
necessary to resolve this, or any other, credibility issue in this case.
And mentioned in Resp. br.
6 Br. of Resp., p. II.
832
THE BARIATRIC CLINIC
"an awful lot" to do with his decision to terminate Gross
and Graham.
Coweison's comments to Graham are not inconsistent
with these findings. An employee can be a "ringleader" and
a "rotten egg" without being a union ringleader or an orga-
nizing rotten egg. This testimony is merely corroborative of
Eggie's testimony as to his attitude toward Gross, which
appeared to me to be totally credible.
On the basis of the entire record, and relying most partic-
ularly on this testimony, I find that Eggie determined to fire
Gross7 because of her protected concerted activities,' Sears
Roebuck and Co., 221 NLRB 632 (1975); Memphis Chair
Company, Inc., 191 NLRB 713 (1971), thus violating Sec-
tion 8(a)(l) of the Act.
B. The February 1978 Incident
Early in February 1978, at some time prior to the 13th,
Karen Smatlack, an employee in Respondent's Squirrel Hill
office, was preparing to transfer to Respondent's Johnstown
office. Since she felt she was taking on more responsibility
at the new location, she asked Linda Coweison for a raise.
Coweison indicated that she did not think Smatlack could
get a raise because the Company had been upset and hurt
by the employees lately.9 She went into some detail, naming
Gross as one of those who had hurt the Company. Smat-
lack then asked whether Coweison and Eggie had known
about the Union. Coweison "kind of smiled" and said they
knew something was going on at the time and quoted Eggie
as saying "he would rather close down all of the Bariatric
Center's offices than let a union run him."
Coweison did not deny this conversation, and Eggie,
while not denying the substance of the statement, placed it
3 to 4 years earlier and qualified it by saying "I would not
allow a group of employees at any one office to gang up on
me and make me do something that I did not want to do. I
would prefer to close the door."
In view of this at least partial admission, and in view of
the credibility of Smatlack's testimony, I find that the state-
ment was made by Coweison to an employee. Further, in
light of Respondent's actions toward Gross and Graham, I
find that this statement was not an isolated, harmless ex-
pression of opinion but constituted a very real threat to
close the clinics if a union came in. This I find to constitute
a separate violation of Section 8(a)X ). C & T Manufacturing
Company, 233 NLRB 1430 (1977).
CONCLUSIONS OF LAW
I. The Bariatric Clinic is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
Eggie determined to fire Graham as well, but since nothing to that effect
was done and since there is no allegation concerning this in the complaint, I
make no finding concerning Graham's situation.
Eggie's testimony about alleged deficiencies in Grosa' work and her al-
leged improper suggestion to him about falsifying unemployment forms I
view aspost hoc justifications for actions I have found were taken for unlaw-
ful reasons.
'This was, of course, after the instant charge had been filed by Gross on
January 20.
2. Service Employees' International Union, Local 585,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
3. By threatening its employee Karen Smatlack that Re-
spondent would close down its offices if a union was se-
lected as representative of its employees, Respondent has
engaged in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
4. By discharging its employee Kathleen B. Gross on
December 20, 1977, and by refusing to reinstate her, Re-
spondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(aX1) of the Act.
THE REMEDY
Having found that Respondent has engaged in and is
engaging in certain unfair labor practices, I shall recom-
mend that it cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the
Act.
I have found that by threatening an employee with clo-
sure of its offices Respondent restrained and coerced its em-
ployees in the rights guaranteed them in Section 7 of the
Act in violation of Section 8(aX I) of the Act. I shall recom-
mend that it cease and desist from uttering such threats.
Having found that Respondent unlawfully discharged its
employee, Kathleen B. Gross, because she engaged in pro-
tected concerted activities, in violation of Section 8(aX1) of
the Act, I shall recommend that Respondent offer Gross
full reinstatement to her former or substantially equivalent
position, with no loss in seniority or other benefits, and
make her whole for any loss of earnings suffered by reason
of the discrimination against her, by payment to her of a
sum of money equal to that which she normally would have
earned absent the discrimination, less net earnings during
such period, with interest thereon to be computed in the
manner prescribed in F. W. Woolworth Company, 90 NLRB
289 (1950), and Florida Steel Corporation, 231 NLRB 651
(1977).'°
It will be further recommended that Respondent preserve
and make available to the Board, upon request, all payroll
records, social security payment records, timecards, person-
nel records and reports, and all other records necessary and
useful to determine the amounts of backpay due and the
rights of reinstatement under the terms of these recommen-
dations.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I issue the following recommended:
O1See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
The General Counsel has filed a supplemental brief in this matter urging
that the interest be raised to 9 percent. Since the Board has not ruled on this
subject, I feel it inappropriate for me to do so. The General Counsel's request
is, therefore, denied.
833
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER"
The Respondent, The Bariatric Clinic, Coraopolis, Penn-
sylvania, its officers, agents, successors, and assigns, shall:
1. Cease and desist from threatening its employees with
the closure of its offices or in any other manner interfering
with, restraining, or coercing employees in the exercise of
their rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Offer to Kathleen B. Cross immediate and full rein-
statement to her former job or, if it no longer exists, to a
substantially equivalent position, and make her whole for
any loss of pay which she may have suffered as a result of
the discrimination practiced against her, in the manner set
forth in the section of this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
" In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
roll records, social security payment records, timecards,
personnel records and reports, and all other records neces-
sary for determination of the amount of backpay due under
the terms of this Order.
(c) Post at all of its locations in the Pittsburgh, Pennsyl-
vania area, copies of the attached notice marked "Appen-
dix."'2 Copies of such notice, on forms provided by the Re-
gional Director for Region 6, after being signed by an
authorized representative of Respondent, shall be posted by
Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 6, in writ-
ing, within 20 days from the date of this Order, what steps
the Respondent has taken to comply herewith.
2 In the event that 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 National Labor Relations Board" shall read "Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the Na-
tional Labor Relations Board."
834