Children's Mercy Hospital

National Labor Relations Board - Board Decisions

May 26, 1993

311 N.L.R.B. 204 (N.L.R.B. 1993)

204
311 NLRB No. 29
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The General Counsel excepted to the judge’s failure to provide
narrow cease-and-desist language in his recommended Order and no-
tice to employees. We grant the General Counsel’s exceptions, and
modify the Order and notice accordingly.
No exceptions were taken to the judge’s dismissal of certain
8(a)(1) allegations.
2 The Respondent contends that the judge improperly allowed the
General Counsel to amend the complaint at the hearing. The amend-
ment alleged that the Respondent interrogated its employees about
the union activities of other employees in early May 1991, and told
its employees that other employees were discharged because of their
union activities on May 31, 1991. The amended charge, dated Sep-
tember 18, 1991, alleged, inter alia, that the Respondent had threat-
ened employees with discharge and had created an impression of
surveillance in late March and early May 1991.
In finding that the judge properly acted within his discretion in
granting the General Counsel’s motion to amend the complaint at the
hearing, we note first that the amendment was closely related to the
timely amended charge, because they both involved the same legal
theory and the same section of the Act; they both arose from the
same sequence of events; and the Respondent raised the same or
similar defenses to both allegations. Redd-I, Inc., 290 NLRB 1115
(1988). We further note that the judge informed the Respondent at
the hearing that if it needed additional time to prepare its case after
presentation by the General Counsel, the judge would entertain such
a request; the Respondent subsequently never asked for additional
time. Thus, the Respondent has failed to show that it was prejudiced
in any way by the judge’s granting the General Counsel’s motion
to amend the complaint.
3 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. 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.
4 All dates are in 1991 unless otherwise indicated.
5 The PCU contained the children who were the most critically ill,
and the parents of these children were provided 24-hour accom-
modations in the rooms.
The Children’s Mercy Hospital and Thomas
McGregor. Case 17–CA–15742
May 26, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On June 12, 1992, Administrative Law Judge David
L. Evans issued the attached decision. The Respondent
filed exceptions and a supporting brief, and the Gen-
eral Counsel filed cross-exceptions and a supporting
brief.1 The Respondent and the General Counsel each
filed an answering brief to the other’s exceptions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings,2 findings,3 and con-
clusions only to the extent consistent with this Deci-
sion and Order.
The judge found that the Respondent violated Sec-
tion 8(a)(3) and (1) of the Act by discharging em-
ployee Thomas Powell. The Respondent argues, inter
alia, that, even assuming arguendo that the General
Counsel has established a prima facie case, it has dem-
onstrated that Powell would have been discharged for
his misconduct absent his union or protected concerted
activities. For the reasons that follow, we find merit in
the Respondent’s exceptions.
The facts are as follows. The Respondent operates
a 167-bed children’s hospital. The Respondent has a
computerized system by which the operations depart-
ment is notified that certain equipment is due for a
weekly, monthly, or semiannual inspection. Planned
maintenance work orders are generated by the com-
puter and sent to the operations department at the re-
quired intervals. Each work order has a ‘‘closing sta-
tus’’ line in which employees check off ‘‘U,’’ ‘‘F,’’ or
‘‘C,’’ for unfinished, finished, or canceled, respec-
tively. There was uncontradicted testimony that ‘‘U’’
is never used because a work order is either finished
in the time period designated, or it remains on the
shift’s clipboard to be subsequently canceled when the
work is later completed. Each work order also has
large blank spaces in which employees are expected to
note needed additional maintenance.
Operating engineers Thomas Powell and Forrest
Hayes worked on the second shift, which was from 3
to 11 p.m. On May 21,4 they received a work order
for the semiannual inspection and maintenance of the
16 bathroom exhaust fans in the Parental Care Unit
(PCU).5 Powell and Hayes admitted at the hearing that
they checked only 3 or 4 of the fans, rather than all
16, because it started to rain and they were worried
about lightning on the roof. At the end of the shift,
however, Powell turned in the work order with the fol-
lowing notations: his initials, employee number, and
the date; ‘‘1–16—Amps. 1.1—checks made’’; a mark
through the ‘‘F’’ (for finished) blank; a mark through
‘‘2.05,’’ which the computer had listed as the esti-
mated hours to finish the work order; and an insertion
of ‘‘1 hr’’ next to the ‘‘2.05.’’
The Respondent’s director of engineering, Randall
Moberg, credibly testified that on May 22, Operating
Engineer Leadman Thomas Thompson told him that
there was a work order turned in indicating that the
PCU exhaust fans had been checked and that he ques-
tioned whether this had actually been done based on
his work on another project. Moberg asked Thompson
to look at all the fans to see if they were defective.
Thompson did so, and found that on some fans the
motors would not turn, on some the plugs were bad,
and one fan was vibrating badly.
On the basis of Thompson’s report, Moberg called
Powell into his office on May 22. Moberg showed
Powell the work order, and asked him several times if
205CHILDREN’S MERCY HOSPITAL
6 Wright Line, 251 NLRB 1083 (1980), enfd. 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).
7 Powell’s personnel file included a written ‘‘verbal’’ warning
dated January 11, 1989, for ‘‘falsifying his work order request’’ by
not following instructions and not completing the project, and a writ-
ten warning dated August 1, 1990, for poor performance and mul-
tiple occasions of not filling out the logs for the daily equipment
checks.
8 At an engineering department staff meeting on May 9, Moberg,
in response to a question from Powell, stated that if additional repair
work was needed on equipment being checked for a work order, the
work order should indicate that additional repair was needed. Pow-
ell’s personnel file also contained a document which indicated that
on May 15, Moberg told Powell that work orders should be com-
pleted before the paperwork was turned in.
9 In support of this contention, the Respondent refers to the docu-
ment itself, which provides that all employees are ‘‘at will,’’ and
that aggravating or extenuating circumstances may warrant what dis-
cipline may be taken.
10 At the hearing, Moberg was not asked about the Respondent’s
progressive disciplinary system and how he thought that it applied,
or did not apply, to Powell’s situation.
the work was complete. Powell replied that it was.
Moberg then told Powell that he did not think that was
true, because he had some indication that there were
fans with some problems. Powell said that it was prob-
ably frayed cords, which he was aware of, and Moberg
asked if that was all that he found wrong. Powell re-
plied yes, that the rest of the fans were okay. Moberg
said that was not a true statement, explaining that
some fans had locked rotors and one was vibrating.
Powell then indicated that he had not completed look-
ing at all the fans.
On May 23, the Respondent’s employee relations
manager, Theresa Cromwell, interviewed Powell, with
Moberg present. Cromwell asked Powell if he had
completed the work order, and he replied that he
thought he had turned it in as unfinished. Moberg then
gave the original work order (which was marked ‘‘fin-
ished’’) to Cromwell, and she said to Powell, ‘‘you
told Randy Moberg that you completed it, now you’re
saying that you turned it in as unfinished; explain.’’
Powell shrugged.
On May 29, Cromwell and Moberg interviewed
Hayes about the work order. Hayes said that he
thought the work order was going to be put on hold
and completed later, and that the first he knew about
the work order being marked complete was on May
22.
After the Hayes interview, Moberg told Cromwell
that he thought Powell should be discharged, and she
agreed. Powell was then called in and told by Crom-
well that he was being discharged for ‘‘falsification of
record and misrepresentation of the facts.’’
The judge found that the General Counsel estab-
lished a prima facie case of discrimination against
Powell. He also found that Powell falsified the May 21
work order. Applying a Wright Line analysis,6 the
judge nonetheless concluded that the Respondent did
not meet its burden of showing that it would have dis-
charged Powell for falsifying the work order even ab-
sent his union activities. In so concluding, the judge
found that the Respondent had a progressive discipli-
nary system in place that provided for an oral warning,
followed by a written warning, followed by a final
written warning or suspension, and then involuntary
termination. The only exception to this policy was
when ‘‘aggravating or extenuating circumstances’’
were present.
The Respondent argued that aggravating cir-
cumstances were present here because: (1) Powell had
previously received oral and written warnings on the
topic;7 (2) Moberg had just reminded the employees of
the importance of correctly completing work orders;8
and (3) Powell had lied during the investigatory proc-
ess about completing the May 21 work order. The
judge rejected all these contentions. Regarding the first
argument, the judge stated that it begged the question,
because the issue was why Powell was afforded the
first two steps of the progressive disciplinary system
but not the third. Regarding the second and third argu-
ments, the judge stated that they were not supported by
evidence, because Moberg never told Powell during
the discharge process that he believed that there were
present aggravating circumstances which warranted by-
passing the progressive disciplinary system, and
Moberg did not testify that such circumstances were a
consideration in his decision to discharge Powell. The
judge found that the Respondent’s ‘‘evidentiary la-
cuna’’ was a tacit admission that there was no valid
reason for denying to Powell the benefit of the third
step of the progressive disciplinary system, and thus
the Respondent’s entire defense was reduced to the sta-
tus of a pretext.
The judge then concluded that, in the context of ani-
mus, the failure to afford a known union adherent the
benefits of an existing progressive disciplinary system
raised a strong inference of discrimination. Finding
that inference to be compelling here, the judge con-
cluded that the Respondent violated Section 8(a)(3)
and (1) of the Act by discharging Powell.
The Respondent in its exceptions contends that the
‘‘Employee Conduct/Discipline Program’’ in the em-
ployee handbook is a guideline only, not a progressive
disciplinary system.9 We find that the record is unclear
as to whether the ‘‘discipline program’’ was just a
guideline or was a regularly followed system.10 Even
assuming the ‘‘discipline program’’ was regularly fol-
lowed, however, we find that Powell’s misconduct was
sufficiently ‘‘aggravating’’ to warrant departure from
the putative progressive disciplinary system. In this re-
gard, we note that Powell’s misconduct consisted of
knowingly falsifying work orders and misrepresenting
the truth during the investigative process. Although the
206 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 Moberg also testified that in deciding to terminate Powell, he
considered Powell’s personnel file, which contained several warnings
as discussed above in fn. 7 and contained a document indicating that
Powell had been counseled on May 15, 1991, that work orders
should be completed before the paperwork was turned in.
12 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
National 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.’’
judge found that Moberg did not use certain magic
words with Powell, i.e., Moberg did not tell Powell
there were ‘‘aggravating circumstances’’ present, we
note that Moberg did tell Powell, in his first meeting
with him on May 22, that he considered Powell’s fal-
sifying a document and misrepresenting facts to him to
be a ‘‘serious problem.’’ Further, although the judge
found that Moberg did not testify that aggravating cir-
cumstances were a consideration in his decision to dis-
charge Powell, Moberg did testify that he terminated
Powell because Powell had falsified a hospital record,
and had misrepresented the facts to Moberg and Crom-
well during the investigation of the falsified work
order, including stating that he had performed work
when in fact he had not done so.11 Thus, Moberg
thought that he could no longer trust Powell to operate
a shift. These factors clearly establish aggravating cir-
cumstances warranting the bypassing of the steps of
the discipline program, and the evidence shows that
Moberg relied on these factors in terminating Powell.
Thus, we find that, notwithstanding the General
Counsel’s establishment of a prima facie case, the Re-
spondent has met its burden under Wright Line and
demonstrated that it would have discharged Powell in
the absence of any protected activity. Accordingly,
contrary to the judge, we dismiss that portion of the
complaint which alleges that the Respondent violated
Section 8(a)(3) and (1) of the Act by discharging Pow-
ell on May 29.
ORDER
The National Labor Relations Board orders that the
Respondent, The Children’s Mercy Hospital, Kansas
City, Missouri, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Threatening employees with discharge or other
discrimination because they have become or remained
members of International Union of Operating Engi-
neers, Local 6 (the Union) or because they have given
assistance or support to that labor organization.
(b) Interrogating employees about their union mem-
berships, activities, or desires.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Post at its facility in Kansas City, Missouri, cop-
ies of the attached notice marked ‘‘Appendix.’’12 Cop-
ies of the notice, on forms provided by the Regional
Director for Region 17, after being signed by the Re-
spondent’s authorized representative, shall be posted
by the Respondent immediately upon receipt and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material.
(b) Notify the Regional Director in writing within
20 days from the date of this Order what steps the Re-
spondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT threaten employees with discharge or
other discrimination because they have become or re-
mained members of International Union of Operating
Engineers, Local 6 (the Union) or because they have
given assistance or support to that labor organization.
WE WILL NOT interrogate employees about their
union memberships, activities, or desires.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of the rights guaranteed them by Section 7 of the Act.
THE CHILDREN’S MERCY HOSPITAL
Mary G. Taves, Esq., for the General Counsel.
Jack D. Rowe and Brian Wooley, Esqs. (Lathrop &
Norquist), of Kansas City, Missouri, for the Respondent.
Thomas McGregor, pro se.
207CHILDREN’S MERCY HOSPITAL
1 All dates are in 1991 unless otherwise indicated. Some punctua-
tion of long quotations is supplied.
DECISION
STATEMENT OF THE CASE
DAVID L. EVANS, Administrative Law Judge. This matter
under the National Labor Relations Act (the Act) was tried
before me in Mission, Kansas, on January 28–29, 1992. The
original charge was filed by Thomas McGregor, an individ-
ual, against The Children’s Mercy Hospital (the Respondent)
on August 2, 1991.1 The complaint was issued by General
Counsel on September 16. The complaint alleges, inter alia,
that, in violation of Section 8(a)(3) and (1) of the Act, em-
ployee Thomas Powell was terminated by Respondent be-
cause of Powell’s membership in, or activity on behalf of,
the International Union of Operating Engineers Local 6 (the
Union). Respondent duly answered the complaint, admitting
jurisdiction of this matter before the National Labor Rela-
tions Board (the Board), and the status of certain supervisors
under Section 2(11) of the Act, but denying the commission
of any unfair labor practices as defined by the Act.
On the testimony and exhibits entered at trial, and my ob-
servations of the demeanor of the witnesses, and upon con-
sideration of the briefs that have been filed, I make the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation, is a health care institution en-
gaged in the operation of a hospital that provides inpatient
and outpatient professional medical care services at Kansas
City, Missouri. In the course and conduct of said business
operations, Respondent annually derives gross revenues in
excess of $250,000, and it annually purchases and receives
at its facility products, goods, and materials valued in excess
of $50,000 directly from suppliers located at points outside
Missouri.
Therefore, Respondent is now, and has been at all times
material herein, an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act, and the
Union is a labor organization within the meaning of Section
2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Facts
Respondent operates a 167-bed children’s hospital; it em-
ploys about 1700 employees. Involved in this case is Re-
spondent’s operations department, the director of which is
Carl Palermo. Reporting to Palermo are Don Reilly, director
of maintenance, and Randall Moberg, director of engineering.
Reporting to Moberg at the time of the events in question
were Supervisor William Gabbert and two electricians and
seven operating engineers. One of the operating engineers
was leadman Thomas Thompson; another was alleged
discriminatee Thomas Powell. Powell had been employed by
Respondent for 12 years at the time of the events in ques-
tion.
In 1989, Charging Party Thomas McGregor was employed
by Respondent as an operating engineer. McGregor partici-
pated in an unsuccessful organizational attempt among the
operating engineers that year. McGregor was discharged in
1989; he filed NLRB charges and a state civil suit against
Respondent over that discharge. No finding of an unfair
labor practice was made pursuant to McGregor’s Board
charge. On April 9, pursuant to a local court practice, a vol-
untary, nonbinding, arbitration proceeding was held on
McGregor’s civil suit against Respondent. (McGregor’s state
civil action was ultimately dismissed.)
The complaint alleges that, in violation of Section 8(a)(1),
Respondent, by Palermo, in late March, created among its
employees the impression that their union or concerted ac-
tivities were under surveillance and threatened employees
with discharge if they engaged in union or other protected
concerted activities. In support of these allegations, Powell
testified that in late March he and Hayes were told by Pa-
lermo that McGregor was being given permission to return
to the hospital for the purposes of visiting a patient, that they
were to report McGregor’s whereabouts to security, and that
they were not to talk to him. Hayes corroborated this testi-
mony by Powell; however, he placed the instructions earlier
in the year. Palermo denied telling any employees not to talk
to McGregor when McGregor returned to the hospital, al-
though he acknowledges telling employees to notify security
if it appeared that McGregor was doing anything other than
visit the patient. I found Powell credible in his testimony,
both as to the approximate date, and about what was said.
In April, electrician Clyde Bowman secured union author-
ization cards and began distributing them in a second organi-
zational attempt by some of the operations department em-
ployees. Bowman, a day-shift operating engineer, gave four
of the cards to alleged discriminatee Powell for distribution
to employees on the 3 to 11 p.m. shift, the shift on which
Powell usually worked. Powell testified that he signed one
of these cards, and he distributed the other cards to other em-
ployees. Powell further testified that he attended two meet-
ings held by the Union.
Powell, a 12-year employee, was one of two second-shift
operating engineers. The other was Forrest Hayes. Hayes,
who was still employed at time of trial, testified that about
2 weeks before Powell was discharged on May 29 he met
Palermo in the hospital cafeteria. Hayes started a conversa-
tion by stating that ‘‘this’’ (unspecified) was the worst he
had seen things for engineers in 10 years. Palermo asked
Hayes to go to Palermo’s office. When the men got there,
Hayes told Palermo that he was having problems at home
and ‘‘there was union problems.’’ According to Hayes:
First of all, [Palermo] told me that he had a list of
names that were [given] to him by some anonymous
telephone caller and that he knew who all was involved
and he told me that I should not worry about what the
other people were doing, I should worry about what I
was doing, that I would be taking that walk to Person-
nel and he’d be shaking his head that there was nothing
he could do for me. . . . And the conversation went on
a little bit more and at that time, toward the end of the
conversation, Carl Palermo asked me—I feel bad about
it—and he asked me who the key people were in this
organizing and at that time I told him that the two key
people were the two people with the most seniority in
our department, being Tom Powell and Clyde Bowman.
208 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 For the reasons discussed infra, I discredit Powell’s testimony
that it was optional with the employee whether to make such nota-
tions on the face of the planned maintenance work orders.
And at the end of this conversation, Carl Palermo told
me that, if I discussed this with anybody, he would find
out about it and it would be my ass.
Palermo flatly denied any such conversation with Hayes.
Hayes gave three affidavits to the NLRB field examiners,
two shortly after the charge was filed, and one just before
trial. In the first two affidavits, he does not mention this ex-
change with Palermo. Hayes testified that he told the field
examiner about the conversation when he was giving the af-
fidavit, but he asked the field examiner to leave it out be-
cause he was afraid of reprisal by Palermo. Hayes further
testified that he finally came forward with his testimony on
this point because he was feeling guilty about informing
management about who the initial organizers were and about
the fact that one of them, Powell, had been discharged.
Hayes further testified that part of his fear of reprisal came
from the fact that, just prior to McGregor’s April 9 arbitra-
tion, when he informed Palermo that he had been subpoe-
naed to testify in that proceeding, Palermo told him to claim
that he (Hayes) could not remember anything.
Palermo testified that, before the McGregor arbitration,
Powell and Hayes came to him and stated that they had been
subpoenaed to testify for McGregor, but that they did not
wish to. Palermo further testified that he told Powell and
Hayes only that they were required to go to the arbitration,
testify, and tell the truth.
I do not believe that Hayes was reluctant to testify for
McGregor at the April 9 arbitration; and, certainly, Powell
was not. Hayes was credible in his testimony about Paler-
mo’s instruction to claim forgetfulness at the arbitration.
Such instruction, I further find, would reasonably engender
the fear expressed by Hayes, and I do not find that Hayes
has effectively been impeached because he left the above-
quoted remarks by Palermo out of his first two affidavits.
Even without the expressions of fear posited by Hayes, the
Board recognizes that employees who testify against their
current employers do so at their peril, a peril which is not
always effectively eliminated by the proscriptions of Section
8(a)(4). Accordingly, the Board affords a presumption of
credibility to the testimony of currently employed employees
who testify against their employers. Georgia Rug Mill, 131
NLRB 1304 (1961).
I invoke this presumption in this case and, for that reason
and because Hayes had a more credible demeanor, I find that
the remarks attributed to Palermo by Hayes were, in fact,
made by Palermo.
Discharge of Powell
Respondent has established a system by which it conducts
regular checks of, and performs certain routine maintenance
on, the heating, air-conditioning, and other mechanical equip-
ment at the hospital. Different equipment is checked at dif-
ferent intervals. Some equipment is checked daily, and
equipment ‘‘logs’’ are maintained at each such piece of
equipment. After each daily inspection, operations depart-
ment employees complete entries on these logs.
Other equipment is checked weekly, some monthly, and
some semiannually. Respondent has a computerized system
by which the operations department supervisors and employ-
ees are notified that a piece of equipment is due for a week-
ly, a monthly, or a semiannual inspection. Planned mainte-
nance work orders (PMs) are forms that are generated by
computer and sent to the operations department in various
numbers at the required intervals.
Each planned maintenance work order is printed on stand-
ard (8-1/2 by 11 inch) paper. When a planned maintenance
work order is sent to the operations department, it contains,
inter alia, a work order number; the date the planned mainte-
nance work order was printed out; the week of the year that
the work is to be performed; the date that the planned main-
tenance work order is issued; the equipment that is to receive
the routine inspection and/or maintenance; the location of the
equipment; the routine inspection and/or maintenance that is
to be performed on the equipment; and an estimate of the
amount of time that will be required for the maintenance or
inspection. Each planned maintenance work order further has
large blank spaces in which employees describe what action
they took. In this space employees are expected to make
other appropriate notations, including needed additional
maintenance.2 Each planned maintenance work order has
spaces designated ‘‘out’’ and ‘‘in’’ blanks for entry of the
date that the required work is performed. Each planned main-
tenance work order has a ‘‘Closing Status’’ line which has
blanks for the employees to check off ‘‘U,’’ ‘‘F,’’ or ‘‘C,’’
for unfinished, finished, or canceled. Finally, there is an area
that the employee is to place his employee number and his
initials.
When the planned maintenance work orders are received
in the engineering department, Supervisor Bill Gabbert di-
vides them up by placing them on clipboards which are des-
ignated for the first, second, and third shifts. Operating engi-
neers on each shift get to the planned maintenance work or-
ders after they have attended to other, more urgent, assign-
ments and the inspections that are to be conducted daily.
After performance of the work called for by the planned
maintenance work order, the employees complete the docu-
ment and submit them to departmental supervision. The su-
pervisors review the completed planned maintenance work
orders and return them to the computer department so that
there is a record that the planned maintenance and/or inspec-
tion has, in fact, been performed.
If a shift’s employees fail to get to a planned maintenance
work order in the designated time period, the order stays on
the department’s clipboard until they do. If an inspection
function is called for, say, weekly, and no one gets to the
assignment during a given week, another planned mainte-
nance work order is generated during the next week. When
the work is performed, an ‘‘F’’ is marked on that second
order, and ‘‘C’’ is marked on the older planned maintenance
work order. Then both forms are turned in to supervision
(Gabbert). Moberg testified, without contradiction, that the
‘‘U’’ (for unfinished) is never used because a planned main-
tenance work order is either finished in the time period origi-
nally designated, or it remains on the shift’s clipboard to be
subsequently canceled when the work is completed in a sub-
sequent time period.
One wing of the hospital is designated the parental care
unit (PCU). The children who are patients in this wing are
the most critically ill, and parents are provided 24-hour ac-
209CHILDREN’S MERCY HOSPITAL
3 The employees called written communications to and from Su-
pervisor William ‘‘Billy’’ Gabbert ‘‘Billy-grams.’’
commodations in the rooms. Each bathroom in the PCU has
an exhaust fan, the motor of which is at the vent on the roof
of the wing. These fans, 16 in number, are scheduled for
semiannual inspections under the planned maintenance pro-
gram.
On May 21 Powell and Hayes worked their usual 3–11
p.m. shift. A planned maintenance work order that was on
the shift’s clipboard called for the semiannual planned in-
spection and maintenance of the PCU bathroom exhaust fans.
The worked called for was:
Direct drive fan—check for lubrication—grease, if re-
quired or oil. Check motor mounts and tighten. Take
AMP reading[s] and log on work order.
The amperage of each motor on the fans is supposed to be
1.1.
At the end of the May 21 shift, Powell turned in the
planned maintenance work order after he had written, as he
admits, his initials, his employee number, the date, and: ‘‘1–
16—Amps 1.1 checks made.’’ Powell and Hayes admit that
they did not check all the fans. They testified that they start-
ed checking the fans, but it started raining, and they were
worried about lightening, so they left the roof after checking
only three or four of the fans. According to Powell on direct
examination:
Well, like I said, Forrest and I checked about four or
five of them and we pulled off the roof and later on
that afternoon, when we were filling out our logs and
filling out our PM sheets, Forrest handed me, you
know, a handful and he took a handful and I filled out
the PM on the exhaust fans ‘‘1 through 16, 1 amp.’’
That means the motors in those fans are 1 amp. And
I wrote ‘‘checks made.’’ I signed my—I think I signed
my name to it. I left the finished mark open and I also
did not write the amount of time that we had spent be-
cause I told Forrest that him or myself would give a
verbal report the next day and explain that there was
bad wiring and bad plugs on the fans that we had
checked.
Received in evidence as Respondent’s Exhibit 23 was the
original of the planned maintenance work order in question.
On the face of the document, in addition to the computer-
generated type and the marks that Powell admits making,
are: (1) a mark through the ‘‘F’’ (for finished) blank; (2) a
mark through ‘‘2.05’’ which the computer had listed as the
estimated hours to finish the work order; and (3) an insertion
of ‘‘1 hr’’ next to the ‘‘2.05.’’ The defense is that Powell
was discharged solely for making these three marks.
Of course, General Counsel has the burden of proof on
this issue, like all other issues of fact. Neither General Coun-
sel, nor Respondent, called a handwriting expert to testify on
the issue; therefore, it was left to the me, unaided, to deter-
mine whether Powell had made all the marks that are attrib-
uted to him. As I stated at trial, the marks made on the docu-
ment are clearly identical in style and nature to other, admit-
ted, samples by Powell. Because of this, and because of the
credible testimony by Respondent’s witnesses and other cir-
cumstances described as this narrative progresses, I find that
Powell made all the marks in question.
Hayes, testified on direct examination:
I recall at the end of that shift that we were both sit-
ting downstairs and I had the PMs in my hand and I
recall giving Tom Powell half of those PMs . . . and
I took the other half. . . . And then he signed his off
and I signed mine off on the ones that we did on the
[other] side of the building and then I took those PMs
and put them into the—what we call the Billy-gram
box.3
In other words, after Hayes and Powell did their work for
the shift, they split up the planned maintenance work orders
that their shift had been assigned, and they signed them off,
one way or another. The group that Powell signed off, one
way or another, included Respondent’s Exhibit 23.
When Powell arrived for his 3–11 p.m. shift on May 22,
leadman Thompson told him that Moberg wanted to see him.
Powell was asked and testified:
Q. All right. Explain what—Outline the conversation
in Mr. Moberg’s office.
A. Okay. I sat down and [Moberg] said to me that
Tom Thompson had brought him a suspicious looking
work order and I think Randy handed it [R. Exh. 23]
to me and he asked me if I had done the work order.
. . . I said that I had done the work order. He then
said, ‘‘Did you finish it,’’ and I said, ‘‘No.’’ I told him
at that time that I had not crossed out the finished box
and I also had not wrote the hours in and I think he
asked me if I had checked all the fans and I—initially,
I said, ‘‘Yes,’’ and then I said, ‘‘No.’’ [I said that] I
had not checked all the fans, that I only had checked
four or five of the fans; and he asked me if I had found
any problems and I told him that I was going to give
a verbal report on the state of these fans, that I had
found bad wiring and also bad plugs on the four or five
fans that Forrest and I had checked and I explained that
it was late in the after—late in the night and that it was
raining and that we were approaching water, most of
the other fans, you know, had water around them and
that we had pulled off because of weather conditions
and conditions that we couldn’t, you know, go ahead
with the work order. . . . Randy said that he would
have to take this matter to [Employee Relations Man-
ager] Theresa Cromwell.
The next day, May 24, when Powell reported to work,
Moberg escorted him to Cromwell’s office. According to
Powell:
I also told Theresa that I had not checked the finished
mark off, nor did I write the hours in, and she asked
Randy Moberg what he, you know, what he thought
about that and Randy responded, ‘‘This is only a sur-
viving tactic.’’ . . . I just told her that I was going to
give a oral report, stating that the four or five fans that
we had checked had electrical problems. . . . She just
said okay, that she would get back to me on her find-
ings.
210 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 After Powell gave this answer, I observed that he and Hayes
were not scheduled to come back to work until May 22 at 3 p.m.,
and I asked:
JUDGE EVANS: So why did you say you’d give the oral report
in the morning?
THE WITNESS: Well, it’s my morning. When I come in at
three o’clock, it’s my morning.
Hayes never used the term ‘‘morning’’ to refer to the beginning of
the 3 p.m. shift, except once when responding affirmatively to a lead
by the General Counsel. This was just another exercise in evasive-
ness by Powell.
5 This account of how Powell’s misconduct was discovered is not
contested by General Counsel. Cf. Kidde, Inc., 294 NLRB 840
(1989).
Powell’s next work day (after a holiday) was May
29. Powell testified that on his arrival at work, Moberg
again escorted him to Cromwell’s office and:
Theresa told me that my employment at Children’s
Mercy Hospital was being terminated for falsifying hos-
pital records and breaking the hospital’s trust.
On cross-examination, Powell was quite evasive on many
points. He had to be asked many times whether he had been
told to place on planned maintenance work orders any repair
needs that he had noticed while doing the required routine
inspection/maintenance functions. The fourth and fifth at-
tempts to get responsive answers resulted in:
Q. My question is, were you told to put them in
writing? A. You had the option of writing that or a
verbal report.
JUDGE EVANS: But did anyone specifically tell you
that you should put it in writing on the planned mainte-
nance work order after you found something that need-
ed some follow up? Were you ever told, hey, pal, put
that in writing when you found something like that?
THE WITNESS: I think—I think that was said.
More evasiveness came when, on cross-examination, Powell
was asked if, within the 2 weeks before his discharge,
Moberg told the operating engineers ‘‘that planned mainte-
nance work orders had to be completed before the paperwork
was turned in?’’ Powell launched into a long, disjointed, eva-
sive, narrative that included something about an incident with
an air-handling unit and a conclusionary statement that ‘‘it
was up to the operator’s discretion’’ whether to complete the
planned maintenance work order before turning it in. Powell
was brought back to the subject of what Moberg had told the
operating engineers 2 weeks before the discharge:
Q. But do you recall the discussion with Mr.
Moberg?
A. Yes, I do.
Q. And he did advise you that planned maintenance
work orders had to be completed before the paperwork
was turned in?
A. Or noted.
Further on cross-examination, Powell was asked to repeat his
testimony about what he had, and had not, placed on the
planned maintenance work order in question. That line of in-
terrogation concluded with:
Q. And you did not, you’re saying, put the hour on
there?
A. That’s right. I left this work order—When I put
it in the box after discussing it with Forrest Hayes, I
said, ‘‘what do you want to do about this, Forrest?’’ I
said, ‘‘I’m going to leave this thing open and we’ll give
a verbal report in the morning.’’ I said, ‘‘you or I can
tell them that we found bad plugs and bad wiring on
the four or five fans that we checked.’’ And I placed
this [R. Exh. 23] in the box.4
In his direct examination, Powell had not testified that he
told Hayes that he was leaving any part of the document
blank. Hayes did not testify that Powell had said anything on
May 21 about leaving any part of the document blank.
Finally on cross-examination, Powell was referred again to
the marks on Respondent’s Exhibit 23 that he admits that he
did make:
Q. What did you mean by this term ‘‘checks made’’?
A. Just that I had made some checks that I, you
know, what I should have done is wrote four or five
fans, but I just—I made checks, that I was up there and
I did look at some of the fans.
In other words, after all of his exercises in evasiveness, Pow-
ell admitted at trial that he entered some of the handwriting
on Respondent’s Exhibit 23, that those entries were false,
and that he should not have made those false entries.
Moberg testified that on May 22:
Tom Thompson came into my office and said there
was a PM turned in indicating the PC exhaust fans had
been completed. He was questioning whether or not
that work had actually been done based on some inves-
tigation that he had been doing for me of mapping out
the locations of all the exhaust fans and getting those
into the computer properly. It was a different work
order that I had given to him. Various engineers had
told me that the counts or the locations may not be
right on PMs and I asked that be corrected. So, when
he told me that, I said, ‘‘Go up and spot-check a cou-
ple; tell me if they’re still defective.’’ And he did that
and came back and said, ‘‘Yes.’’ I said, ‘‘Okay, go
back again, map all of them up there; look at them and
see if there’s something defective with them; and report
that back to me.’’ So he did that. He brought me a list
that showed some rotors that were locked on motors—
meaning that the motor would not turn—some plugs
that were bad. I believe there was one fan that was vi-
brating real bad.5
Moberg testified that it was on the basis of this report that
he called Powell into his office for discussion of the matter
on May 22.
On May 22, when Powell was called to Moberg’s office.
According to Moberg:
I had the PM work order with me at that point and I
showed the work order to Tom and I said, ‘‘Is this
work complete?’’ And he indicated that it was com-
plete. . . . [He said,] ‘‘I did that work order.’’ I said,
‘‘Is it all done?’’ He said, ‘‘Yes’’; and I questioned
him even so far as he had filled it out and he said,
211CHILDREN’S MERCY HOSPITAL
‘‘Yes, I filled out that work order; that’s my work
order; I did the work.’’ He was really very adamant
that he had done that work. And so I said, ‘‘Tom, I
just—I don’t think that’s the truth; I have some indica-
tion in front of me that shows that there are fans up
there with some problems to [sic] them.’’ He said,
‘‘Yeah, it’s probably frayed cords and I was aware of
that.’’ And I said, ‘‘Is that all that you found wrong?’’
And he said, ‘‘Yeah, that’s—the rest of them are
okay.’’ I said, again, ‘‘That’s not a true statement.’’ I
started explaining to him that there were some of them
with locked rotors, that there was one that was vibrat-
ing. And he . . . did indicate to me that he had not
completed looking at all of the work orders.
Thompson, who was present, testified consistently with
Moberg, and I found them both to be more credible than
Powell about what happened in the May 22 conference.
Moberg described the May 23 interview of Powell by
Cromwell:
[Cromwell] asked [Powell] if he had completed the
work order and he told her in that meeting that he
thought that he had turned it in as unfinished; and so
at that point I went back to our record books that con-
tain the originals and got out the original and went back
to Theresa Cromwell’s office and gave it to her and she
showed it to Tom and said,’’you told Randy Moberg
that you completed it, now you’re saying that you
turned it in as unfinished; explain.’’ And . . . I think
he shrugged his shoulders.
Cromwell testified consistently with Moberg, and I found
them both to be more credible than Powell in testifying about
the May 23 interview in Cromwell’s office.
Moberg testified that he and Cromwell interviewed Hayes
on May 29, before Powell’s discharge on that date. In that
interview, according to Moberg, Hayes stated that he had
been on the roof with Powell, that he suggested leaving the
roof before the work order was completed, and that ‘‘he had
thought that the work order was going to be put on hold and
completed at a later date and that the first that he had learned
about the completed work order, or it being [marked] com-
plete when it wasn’t, was on [May 22].’’ Hayes was not
called in rebuttal to deny this testimony, and I found Moberg
credible at this point.
Moberg testified that after the Hayes interview was com-
pleted, he told Cromwell that he thought Powell should be
fired. Cromwell agreed. Powell was called in and told by
Cromwell that he was discharged for ‘‘[f]alsification of
record and misrepresentation of the facts.’’
Moberg testified that after the discharge interview in
Cromwell’s office:
I went with Tom Powell back to his locker so that he
could get his personal belongings out of his locker and
we got there and he opened up his locker and there was
nothing in it. I was a little shocked at that and asked
him why it was empty and he said, well, he just—he
thought he was going to be terminated and so he’d
gone ahead and cleaned it out prior to that. So we went
ahead and went to an elevator and I proceeded to walk
with him out to his vehicle. As we were exiting the
hospital, he made a statement to me. He said, ‘‘I made
a mistake and I’m paying the ultimate price,’’ and I did
not respond to him. I just escorted him on out to his
pickup truck and went back in the building.
Powell denied making the ‘‘ultimate price’’ statement, but I
found Moberg credible. I further credit Moberg’s testimony
that, at no time during the investigation/discharge process did
Powell state that he had planned to make a ‘‘verbal report’’
on the repairs that the fans needed.
After Powell’s Discharge
Hayes testified that ‘‘approximately one or two days
after’’ Powell’s termination on May 29:
I was getting ready to leave the engineering office and
go through the back part of it and Carl [Palermo] was
coming through that office and at that time he turned
around and closed the back door and he asked me how
it was going and I said it was okay and the next thing
I know Carl told me, he goes, ‘‘Forrest, there’s one
more individual to go and you know who that individ-
ual is.’’ And he looked toward the electrical department
because it was south, south of our office, and I knew
who he was talking about. Hayes testified that he
‘‘knew’’ that Palermo was referring to electrician Clyde
Bowman whom Hayes had previously identified to Pa-
lermo as one of the two principal employee organizers.
Palermo denied any such conversation; however, again,
because of the reasons that I have previously stated, I
found Hayes credible.
Evidence of Discriminatory Treatment
General Counsel offered employee testimony that, in years
past, employees had been instructed to complete planned
maintenance work orders, and mark them off as finished,
when the work had not actually been done. This testimony
was probative of nothing. Each case described was when the
supervisor had found a great backlog, a circumstance not
present here. Moreover, the then supervisors told the employ-
ees, in effect, that such a practice was not something that
should have been done. Finally, the supervisor involved here
was Moberg. Moberg was not involved in the prior aberra-
tions (if, in fact, they occurred); and Moberg had told the
employees only 2 weeks before Powell’s discharge (regard-
less of what had happened before) that all planned mainte-
nance work orders were to be completed accurately before
being turned in to supervision. By Powell’s own testimony,
it has been proved that Powell did not complete Respond-
ent’s Exhibit 23 before he turned it in; also, partly by his
own testimony, it has been proved that Powell entered false
information on the document.
General Counsel also introduced into evidence a section of
Respondent’s employee handbook entitled ‘‘Employee
Conduct/Discipline Program.’’ Listed as part of its ‘‘mini-
mum’’ requirements of employee conduct is ‘‘Providing
clear and accurate information in all written and verbal com-
munications.’’ At the conclusion of the listing of the em-
ployee conduct rules there follows (emphasis is original):
DISCIPLINARY ACTION WILL OCCUR IF ANY OR
ALL OF THE ABOVE GUIDELINES ARE NOT
212 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 As noted, Powell had been employed for 12 years.
7 During the investigation of the 1990 offenses covered by the
written warning, Powell submitted a reply which included the false
statement that he had been working 6 and 7-day weeks. This factor
further detracts from Powell’s credibility.
8 See Gem Urethane Corp., 284 NLRB 1349 at 1363–1364 (1987).
9 See Tartan Marine Co., 247 NLRB 646 (1980), in which the em-
ployee was told that the supervisor heard of the union activity
‘‘some people in a bar.’’
10 Checker Cab Co., 247 NLRB 85 (1980).
11 Jeanette Corp., 217 NLRB 653 (1975), enfd. 532 F.2d 916 (3d
Cir. 1975).
MET. For an employee who has completed his/her in-
troductory period in a full-time or part-time position,6
four types of disciplinary action are generally utilized.
Oral Warning: Allows an employee the opportunity for
self- discipline and correction.
Written Warning: Emphasizes the importance of the of-
fense and the necessity of a plan for improvement.
Final Written Warning or Suspension: Communicates
the seriousness of the offense and emphasizes that fu-
ture incidents will subject the employee to termination.
Involuntary Termination: Occurs when hospital man-
agement believes that continued employment is not in
the best interest of the Hospital, other employees, pa-
tients, and visitors.
. . . .
Absent aggravating or extenuating circumstances, dis-
ciplinary action for a violation of the above standards
will normally start with an oral warning followed by
written warning, final written warning/suspension, and
involuntary termination for subsequent offenses.
On January 11, 1989, Gabbert issued to Powell a written
‘‘verbal’’ warning for, inter alia, ‘‘falsifying his work order
request.’’ As the ‘‘improvement action’’ the Gabbert’s warn-
ing states: ‘‘Work will be monitored more closely—and
work orders will be completed in more detail.’’ On August
1, 1990, Moberg issued to Powell a ‘‘Written Warning’’ for
poor performance and multiple occasions of not filling out
the logs for the daily equipment checks. As ‘‘Plan for Im-
provement,’’ Moberg states: ‘‘Tom Powell will correctly fill
out all logs and log book entries. Tom will also operate his
shift as per instructions both written and verbal.7
Moberg testified, repeatedly, that the decision to discharge
Powell was made solely by him (and that Cromwell only
concurred). Moberg was not asked about Respondent’s pro-
gressive disciplinary system and how he believed that it ap-
plied, or did not apply, to Powell’s case. Specifically,
Moberg was not asked, and he did not testify, that there were
circumstances in the case of Powell’s falsification of the May
21 planned maintenance work order that he considered to be
‘‘aggravating.’’
To show that Powell was treated as any other employee
would have been under the circumstances, Respondent intro-
duced documentation that two probationary employees who
had falsified their employment applications had been sum-
marily discharged for that reason. Respondent also intro-
duced evidence that, subsequent to Powell’s discharge, an-
other employee was discharged for false statements to an-
other business entity about something that had occurred at
the hospital.
B. Analysis and Conclusions
1. Alleged violations of Section 8(a)(1) of the Act
Even as credited, the testimony by Powell and Hayes that
Palermo told them not to talk to Charging Party McGregor,
a nonemployee, when McGregor visited the hospital did not
violate the Act. The testimony advanced by General Counsel
is far from clear that a reasonable employee would have con-
cluded that the instruction in any way related to union or
protected concerted activities. Accordingly, I shall rec-
ommend dismissal of this allegation of the complaint.8
As stated by Administrative Law Judge Shapiro in Califor-
nia Dental Care, 272 NLRB 1153, 1165 (1984):
In determining whether an employer created the im-
pression of surveillance the test applied by the Board
is whether, under the circumstances, the employee
would reasonably assume from the statement in ques-
tion that the employee’s union activities had been
placed under surveillance.
Palermo’s mid-May statement to Hayes that he had re-
ceived an anonymous telephone call and knew who was ‘‘in-
volved’’ in the union activity could not have been coercive
under the circumstances. In the first place, Palermo made no
suggestion that he had engaged in surveillance (or even legal
observations). Second, Palermo gave an identification of his
‘‘source,’’ albeit a vague one.9 Under the circumstances, no
reasonable employee would have concluded that surveillance
had been conducted.
Accordingly, I find and conclude that by Palermo’s state-
ment that Respondent had received an anonymous telephone
call in which identities of union adherents were learned, Re-
spondent did not violate Section 8(a)(1) of the Act.10
However, in the same conversation, Palermo issued two
separate threats of discharge, or other discrimination, to
Hayes. He threatened to discharge Hayes if Hayes got in-
volved in what ‘‘the other people were doing,’’ and he
threatened to discharge Hayes if he told others of their con-
versation. What the other people were doing was union or
protected concerted activities, and the first threat was obvi-
ously violative. By the second threat, Palermo was then im-
posing a condition of employment on Hayes, an illegal one.
Hayes had just as much right to discuss the conversation
with other employees (and the Board) as he did to discuss
his wages or any other condition of his employment.11
Accordingly, I find and conclude that by both of Paler-
mo’s threats toward Hayes, Respondent violated Section
8(a)(1) of the Act.
Of course, Palermo’s asking Hayes to name the ‘‘key peo-
ple’’ who were involved in the union activity was an interro-
gation in violation of Section 8(a)(1) of the Act, as I further
find and conclude.
213CHILDREN’S MERCY HOSPITAL
12 Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466, 470 (9th
Cir. 1966).
13 Board Ford, Inc., 222 NLRB 922 (1976); Bartenders Local 19,
240 NLRB 240 (1979), and cases cited infra at 246.
14 The ultimate issue being, of course, whether the ‘‘ultimate
price’’ was imposed lawfully.
Finally, 2 days after Powell was discharged, Palermo told
Hayes that there was ‘‘one more individual to go’’ and made
a nodding reference to the workplace of the other employee-
organizer, electrician Bowman. This was a threat that Re-
spondent would look for a reason to discharge Bowman,
even if Powell had been discharged lawfully. The only pos-
sible basis for the threat was the information that Palermo
had received in his preceding conversation with Hayes—that
Bowman was one of the two employees who was exercising
the employees’ Section 7 right to engage in union and union
or protected concerted activities.
Accordingly, I find and conclude that by this remark of
Palermo, Respondent violated Section 8(a)(1) of the Act.
2. Alleged violation of Section 8(a)(3)
The complaint alleges that Powell was discharged because
of his union activities; Respondent contends that Powell was
discharged for falsifying a document, to wit, the planned
maintenance work order that Powell submitted on May 21.
The law is that the General Counsel has initial burden of
establishing a prima facie case sufficient to support an infer-
ence that union or other concerted activity that is protected
by the Act was a motivating factor in Respondent’s action
that is alleged to constitute discrimination in violation of
Section 8(a)(3) or (1). Once this is established, the burden
shifts to Respondent to come forward with evidence that the
alleged discriminatory conduct would have taken place even
in the absence of the protected activity. If Respondent goes
forward with such evidence, General Counsel ‘‘is further re-
quired to rebut the employer’s asserted defense by dem-
onstrating that the [alleged discrimination] would not have
taken place in the absence of the employee’s protected activi-
ties.’’ Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d
899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982); ap-
proved in NLRB v. Transportation Management Corp., 462
U.S. 393 (1983). The test applies regardless of whether the
case involves pretextual reasons or dual motivation. Frank
Black Mechanical Services, 271 NLRB 1302 fn. 2 (1984).
‘‘For a finding of pretext necessarily means that the reasons
advanced by the employer either did not exist or were not
in fact relied upon, thereby leaving intact the inference of
wrongful motive established by the General Counsel.’’ Lime-
stone Apparel Corp., 255 NLRB 722 (1981), enfd. 705 F.2d
799 (6th Cir. 1982). If a pretext has been advanced, the in-
ference of unlawful motivation is logically reinforced.12
To meet its burden under Wright Line, it is not enough for
an employer to show that an employee, for whom General
Counsel has presented a prima facie case of discrimination,
engaged in misconduct for which the employee could have
been discharged, or otherwise disciplined. The Respondent
must show that it would have discharged, or otherwise dis-
ciplined, the employee for the misconduct in question.
Hrasco Corp., 304 NLRB 729 (1991).
Therefore, the first inquiry is whether the record contains
a prima facie case of discrimination, or credible evidence
that Respondent knew or suspected that the alleged
discriminatee had engaged in union or other protected con-
certed activity, and that Respondent’s decision to discharge
the employee was motivated, at least in part, by animus to-
ward that activity. Chelsea Homes, 298 NLRB 813 (1990).
If such a prima facie case is held to have been established,
an inquiry will be made whether the defense has been rebut-
ted, either by showing that it is without factual basis or by
a showing that it is pretextual.
I have found that Hayes was threatened and interrogated
by Palermo before Powell’s discharge and that Palermo
threatened to discharge Bowman afterward. Therefore, Gen-
eral Counsel has demonstrated Respondent’s animus toward
its employees’ union activities.
General Counsel has also proved Respondent’s knowledge
of Powell’s union activities. The product of Palermo’s inter-
rogation of Hayes was the identification of Powell as one of
the two employee-organizers. In an attempt to quarantine the
evidence of Palermo’s knowledge, Respondent introduced
testimony by Palermo that he did not involve himself with
discharge decisions, even though he is head of the operations
department (and, according to this record, none other). Addi-
tionally, Moberg was presented to testify that he knew noth-
ing of Powell’s union activities, and that he, and only he,
made the decision to discharge Powell. I do not believe any
of that testimony.
Moberg is not the lowest-level supervisor in the operations
department, but he is the next thing to it. I simply do not
believe that Palermo did not involve himself in a decision to
discharge an employee who had been in his department for
12 years. But, even if Moberg was the only supervisor in-
volved in the decision. Palermo’s actual knowledge is prop-
erly imputed to Moberg.13 (And such knowledge would be
equally imputable to Cromwell whose participation was obvi-
ously more than a matter of form, as Respondent contends.)
Accordingly, I conclude that, with this evidence of knowl-
edge and animus, a prima facie case of discrimination against
Powell has been presented by General Counsel.
Powell falsified the May 21 planned maintenance work
order. The issue is: Would Respondent have discharged Pow-
ell for having done so, even absent his union or protected
concerted activities?
At the time of Powell’s discharge, there was in effect for
Respondent’s employees a progressive disciplinary system
that provided for a ‘‘final warning’’ with suspension that
‘‘[c]ommunicates the seriousness of the offense and empha-
sizes that future incidents will subject the employee to termi-
nation.’’ If this written promise to employees means any-
thing, it means that the seriousness of an infraction will be
impressed on an employee by a suspension, with attendant
loss of pay, before the ‘‘ultimate price’’ (Powell’s words)
would be paid.14 The only exception to Respondent’s prom-
ise to provide penultimate punishment is the case in which
there is present ‘‘aggravating . . . circumstances.’’
On brief, Respondent argues that aggravating cir-
cumstances were present because: (1) Powell had previously
received oral and written warnings on the topic; (2) Moberg
had just reminded the employees of the importance of com-
pleting planned maintenance work orders, and completing
them correctly; and (3) Powell lied during the investigatory
214 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
15 As noted, I do not believe Moberg’s testimony that he, alone,
made the decision to discharge Powell.
16 Hrasco Corp., supra.
17 Transportation Enterprises, 240 NLRB 551, 550 (1979).
18 Certainly, neither Respondent’s evidence that it had discharged
two probationary employees for falsifying their employment applica-
tions, nor its evidence that it discharged another nonprobationary
employee for documentfalsification after it discharged Powell, rebuts
the inference.
process about completing the May 21 planned maintenance
work order.
The first reason advanced for finding aggravating cir-
cumstances begs the question; the issue is: why was Powell
afforded the first two steps of the progressive disciplinary
system but denied the third? The second and third reasons
advanced by Respondent would give more pause if they were
supported by evidence. Moberg did not tell Powell during the
discharge process that he believed that there were present ag-
gravating circumstances which deprived the employee of the
protection of all of the steps of the progressive disciplinary
system; and Moberg did not testify that, even though he did
not mention it to Powell, such circumstances were a consid-
eration in ‘‘his’’ decision to discharge Powell.15
Therefore, in the posture of this case, the argument that
the progressive disciplinary system was not afforded to Pow-
ell because of aggravating circumstances is nothing more
than an argument that Powell could have been discharged for
his misconduct, not that he would have been discharged for
his misconduct even absent his union or protected concerted
activities.16 Respondent’s evidentiary lacuna is a tacit admis-
sion that there was no valid reason for denying to Powell the
benefit of the third step of the progressive disciplinary sys-
tem. Because of this failure of evidence, the its entire de-
fense is reduced to the status of a pretext.
In a context of animus, the failure to afford a known union
adherent the benefits of an existing progressive disciplinary
system raises a strong inference of violative discrimination.17
I find that inference to be compelling here,18 and I conclude
that Respondent violated Section 8(a)(3) and (1) of the Act
by discharging Powell on May 29.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
The Respondent having discriminatorily discharged em-
ployee Thomas Powell, it must offer him reinstatement and
make him whole for any loss of earnings and other benefits,
computed on a quarterly basis from date of discharge to date
of proper offer of reinstatement, less any net interim earn-
ings, as prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950), plus interest as computed in New Horizons for the
Retarded, 283 NLRB 1173 (1987).
[Recommended Order omitted from publication.]