Delta Health Center

National Labor Relations Board - Board Decisions

Jan 7, 1993

310 N.L.R.B. 26 (N.L.R.B. 1993)

26
310 NLRB No. 7
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 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.
In adopting the judge’s finding that the Board should assert juris-
diction over the Respondent, Member Devaney notes that there were
no exceptions to this finding.
1 The General Counsel attached a proposed order and a proposed
notice to the Government’s brief.
2 On September 26, 1991, Delta’s able lead counsel at the trial,
Carlton H. Petway Sr., suffered an untimely death at 51. Joining At-
torney Willie L. Bailey on Delta’s posthearing brief is Julian W.
Blackshear Jr., Attorney Petway’s surviving law partner.
Delta Health Center, Inc. and Charlotte Mosley and
Priscilla Susette Hill. Cases 26–CA–14218–1 and
26–CA–14218–2
January 7, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On March 20, 1992, Administrative Law Judge
Richard J. Linton issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and
the General Counsel filed a brief in response to the
Respondent’s exceptions and in support of the judge’s
decision.
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, findings,1 and con-
clusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Delta Health Center, Inc.,
Mound Bayou, Mississippi, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
Order.
Donna Osborne Griffin, Esq. and Chevella R. Brown, Esq.,
for the General Counsel.
Carlton H. Petway Sr., Esq., Julian W. Blackshear Jr., Esq.
(brief only) (Petway & Blackshear), of Nashville, Ten-
nessee, and Willie L. Bailey, Esq. (Bailey & Griffin), of
Greenville, Mississippi, for Delta Health Center.
DECISION
STATEMENT OF THE CASE
RICHARD J. LINTON, Administrative Law Judge. This is a
concerted activities discharge case. Stipulating that the activi-
ties (memos containing allegations and criticism written part-
ly in harsh language) of the employee group were concerted,
Delta contends that the activities were not protected because
they (1) invaded the exclusive province of management, and
(2) in any event, were so disloyal, reckless, or maliciously
untrue as to be impermissibly abusive. Finding that the lan-
guage falls within the permissible range of harshness, the
employee witnesses more credible and persuasive than the
management representatives, and the concerted activities to
be protected by the Act, I order Delta to offer immediate and
full reinstatement to Charging Parties Hill and Mosley and
to pay them backpay, with interest.
I presided at the trial of this case in Cleveland, Mis-
sissippi, for 6 days, beginning June 3 and concluding August
28, 1991, on the January 31, 1991 order consolidating cases
and consolidated complaint (complaint) issued by the Gen-
eral Counsel of the National Labor Relations Board through
the Regional Director for Region 26 of the Board. The com-
plaint is based on charges filed December 17, 1990, by Char-
lotte Mosley (Mosley) in Case 26–CA–14218–1 and on the
same date in Case 26–CA–14218–2 by Priscilla Susette Hill
(Hill) against Delta Health Center, Inc. (Delta, DHC, or Re-
spondent). All dates are for 1990 unless otherwise indicated.
The General Counsel alleges in the complaint that Delta
violated Section 8(a)(1) of the Act about September 6 by
threatening Charging Party Hill with unspecified reprisals,
about September 30 by issuing written reprimands to Charg-
ing Parties Mosley and Hill, and about October 22 by termi-
nating Mosley and Hill because about September 5 Mosley,
Hill, and others, during a monthly staff meeting, concertedly
complained about Delta’s clinic at Greenville, Mississippi,
and the effect of that clinic on the wages, hours, and working
conditions of Delta’s employees.
By its answer, as amended, Delta admits certain facts, de-
nies the allegation of statutory employer, and denies violating
the Act. For affirmative defenses, Respondent DHC asserts
that (1) the Board lacks jurisdiction respecting the two dis-
charges; (2) the two discharges do not constitute a violation
of Section 8(a)(1); (3) the charges by Mosley and Hill are
deliberately or maliciously false, in bad faith, and for the im-
proper motive and intent ‘‘to coerce and intimidate the Re-
spondent’s efforts to expand its facilities in Greenville, Mis-
sissippi’’; and (4) the bad-faith charges by Mosley and Hill
were ‘‘politically motivated,’’ and with malice, as a result of
the personal disagreement of the charging parties with Del-
ta’s managerial guidelines and policies.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed by the General Counsel1 and Delta,2 I make the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
The pleadings establish that Delta is a corporation with an
office and facility in Mound Bayou, Mississippi, where it has
been engaged as a health care institution in the operation of
medical clinics in Mound Bayou and Greenville, Mississippi,
providing outpatient medical and professional care services.
Annually Delta purchases and receives goods valued at
$50,000 or more direct from points and places located out-
27DELTA HEALTH CENTER
3 References to the six-volume transcript of testimony are by vol-
ume and page. Exhibits are designated G.C. Exh. for the General
Counsel’s and R. Exh. for Respondent Delta’s. 4 42 U.S.C. § 254c(d)(4)(B)(ii).
side Mississippi, thereby establishing legal jurisdiction. As
Delta’s revenues are $250,000 or more per year, it meets the
Board’s discretionary jurisdiction standard. East Oakland
Community Health Alliance, 218 NLRB 1270 (1975).
Although at trial the parties stipulated that Delta is a
health care institution within the meaning of Section 2(14) of
the Act, Delta adhered to the position in its answer denying
that it is a statutory employer. (1:17.)3 Delta’s position, as
expressed at the hearing, is that it is exempt because it is
controlled by a Federal agency. (1:21–25; 2:245.) In its
posthearing brief, Delta does not expressly address the issue
of jurisdiction.
Section 2(2) of the Act extends coverage of the Act to em-
ployers generally, and then excludes certain categories such
as ‘‘any State or political subdivision.’’ As Delta employs in-
dividuals who are employees within the meaning of Section
2(3), Delta clearly is a statutory employer. Because Delta is
not a state or political subdivision, it does not fall within that
exclusionary category. As in Res-Care, 280 NLRB 670 fn.
1 (1986), the question is whether the record demonstrates
that the Board should decline to exercise its discretionary ju-
risdiction because an exempt entity (a Federal agency in this
case) controls the working conditions of Delta’s employees.
The employer bears the burden of persuading the Board not
to exercise its statutory jurisdiction. Human Development
Assn. v. NLRB, 937 F.2d 657, 661 (D.C. Dir. 1991); Fire-
fighters, 292 NLRB 1025, 1026 and fn. 9 (1989). I find that
Delta did not carry its burden.
Delta receives 51 percent of its funds from fees for its
services, and only 49 percent from the Public Health Service
(PHS) division of the United States Department of Health
and Human Services (HHS) under Pub. L. 100–386 § 330,
the Public Health Service Act, 42 U.S.C. § 201, 254c, with
the 1988 amendments, Pub. L. § 100–386, being the most
relevant. (1:27; 2:222–223.) For its Federal funding, Delta
must provide primary health care services to four Mississippi
counties: Bolivar, Coahoma, Sunflower, and Washington.
(1:27, 36.) Since November 28, 1988, Dr. L. C. Dorsey
(Dorsey has a doctorate degree in social work, 1:61) has
been Delta’s executive director. (1:27; 6:1205; G.C. Exhs.
28, 38.) Delta’s policy is set by a 15-member board of direc-
tors, with 51 percent (8, apparently) of the directors being
elected by the patients and the 8 elected then selecting the
other 7. (1:34.)
Luther Wayne Cutchens is the director of PHS’ Atlanta re-
gional office of the Office of Grants Management. Cutchens’
Region 4 covers eight States, including Mississippi. (2:221–
222.) His office handles the financial aspects of the health
program, recommending approval/disapproval to the central
office and otherwise administering and monitoring the funds.
(2:222, 238.) PHS’ Atlanta project officer for the health pro-
gram is Paul Bond. (2:234, 267; 6:1209.) Their two offices,
Cutchens testified, coordinate closely. (2:239.)
Section 330 funds are provided based on a grant applica-
tion submitted by the health center and a notice of grant
award. (1:60; 2:232, 241.) Central to the process is a line–
item budget, which includes items for salaries and benefits.
(2:229, 251, 275, 281.) As a health center partially funded
by the PHS, Delta files an annual report which Cutchens’ of-
fice audits. If the audit finds an expenditure on an item not
approved, that expenditure of section 330 funds would be
disallowed. (2:274–275.) However, this is subject to three ex-
ceptions. First, Delta (the grantee) may switch funds among
line items as long as the total (Federal) budget is not exceed-
ed. (2:275.)
Second, Delta may use other sources to fund above what
the PHS of HHS approves. For example, Cutchens explains,
the number of paid holidays, a line item, must be reasonable
in relation to those listed by other grantees in the eight–state
area of Region 4. If 10 is a reasonable number and Delta
gives 15, Cutchens would ask about the additional 5 and
probably recommend that the central office not fund the ad-
ditional ones. Delta nevertheless would be free to fund the
additional five from other sources. (2:252, 254, 281–282.)
Third, if Delta generates more fees than estimated, it has
excess income, or ‘‘EPI’’—excess program income. Delta
may keep all of that EPI and use it for any of five purposes
specified in the statute, such as improving the administration
of the service program.4 (2:229–230.) That would authorize
Delta, Cutchens explains, to pay bonuses from EPI to man-
agement and staff. So long as Delta uses EPI for the five
statutory categories, the PHS has no control over how Delta
spends that excess money. (2:233, 277.)
Delta’s level of funding depends on what is called ‘‘en-
counters’’; that is, a provider ‘‘seeing’’ or treating a patient,
and the cost per encounter. (2:255–256, Cutchens.) Providers,
Dorsey explains, are the doctors, dentists, and nurses.
(1:108.) In the experience of the workers, a significant loss
of funds has resulted in layoffs. (1:194; 2:452; 3:681, 696;
4:812, 816, 884, 886; 6:1336.) Dorsey testified that the
Greenville clinic was opened in order to increase Delta’s en-
counters. (6:1206.)
Beyond its overall financial restrictions, the Public Health
Service of HHS, Cutchens testified, has no control over the
day–to–day operations of Delta, or any health center, and
does not get involved in such operations. ‘‘These are private
corporations [but nonprofit, 2:277] and the boards [of direc-
tors] are responsible for the operations of the center. We pro-
vide the funds.’’ (2:227.)
Cutchens identified an August 20, 1990 memo (G.C. Exh.
39) from James J. Corrigan, HHS’ national director for sec-
tion 330 grants, in which Corrigan lists 18 ‘‘grant actions’’
which require prior approval. The 18 items range from cap-
ital expenditures for land or buildings to purchase of special
equipment exceeding $25,000 to subcontracting of the oper-
ations. None of the 18 items deals with day–to–day oper-
ations, wages, hours, working conditions, or labor relations.
(2:228.)
Dorsey testified that she and the board of directors set the
hours of the facilities (1:38) (although PHS specifies certain
clinical hours, 1:51), determine employee benefits, including
health insurance coverage and retirement (1:41–44), and va-
cation (1:49–50). They develop, install, and modify personnel
policies and procedures for Delta without approval by HHS
(1:51), including the sick leave, pay day, and leave of ab-
sence policies (1:54), hire and terminate line staff (1:62–63),
lay off (1:65), demote (1:66), transfer (1:71), suspend and
28 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 ‘‘On or about September 5, 1990, during a monthly staff meet-
ing, Mosley and Hill, and others, concertedly complained to the Re-
spondent about Respondent’s Greenville clinic and the effect of said
clinic upon the wages, hours, and working conditions of Respond-
ent’s emlpoyees.’’ (Complaint par. 7 denied.)
promote (1:72) employees, and fix the number and dates of
paid holidays (1:78).
Although the PHS of HHS does not get involved in ordi-
nary personnel matters, at one point before November 1988
it did insist that Delta replace its board of directors and exec-
utive director with, in Cutchens’ words, ‘‘adequate’’ manage-
ment, if Delta wanted continued Federal funding. Delta com-
plied. Replacing Dr. Richard Enochs, Dr. William Lucas was
appointed the acting executive director. (2:242–249.) Dr.
Lucas is a younger brother of Earl S. Lucas, the mayor of
Mound Bayou. (4:924, 939.)
For about 5 years, from August 1984 to August 1989,
Delta operated in what PHS classifies as ‘‘exceptional sta-
tus.’’ (1:66; 2:226.) Contrary to the term’s connotation, that
status is not a good one to be in. ‘‘Exceptional status’’ usu-
ally means, Cutchens explains, that the health center is hav-
ing financial problems and is experiencing a budget deficit.
(2:224.) During the period Delta was in that status PHS pro-
vided technical assistance and performed detailed financial
reviews. (2:225.) Although PHS’ oversight of the financial
management during that time was closer than normal, even
then PHS did not formulate or administer personnel policies.
(2:225–226.) After Dorsey became the executive director in
November 1988 she submitted a plan to correct the budget
deficit. (1:69.) Eventually Dorsey, with diligent effort and
personal sacrifice by the staff (3:747; 4:817, Odom), was
successful and the exceptional status was lifted either in
March 1989 (1:66) or August 1989 (2:226).
As Delta, a statutory employer within the meaning of Sec-
tion 2(2), (6), and (7) of the Act, maintains sufficient control
over the employment conditions of its employees to enable
it to bargain effectively with a labor organization over
wages, hours, benefits, and other terms and conditions of em-
ployment, I find that Delta has failed to carry its burden to
persuade that the Board should not exercise its statutory ju-
risdiction. Human Development Assn., 293 NLRB 1228
(1989), enfd. 937 F.2d 657 (D.C. Cir. 1991); Firefighters,
292 NLRB 1025, 1026–1027 (1989); Community Inter-
actions—Bucks County, 288 NLRB 1029 (1988); Long
Stretch Youth Home, 280 NLRB 678 (1986).
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Basic Facts
1. Background and credibility
Delta Health Center, Dorsey testified, provides a full range
of medical, dental, social (health education), and WIC
(women, infants, and children) services, as primary health
care, to the citizens of four Mississippi counties: Bolivar,
Coahoma, Sunflower, and Washington. (1:27, 36.) Situated
on the west to northwest side of Mississippi, the four coun-
ties lie in the Mississippi River’s delta region.
Delta’s principal office is located at Mound Bayou, a
small town about 10 miles north of Cleveland, in Bolivar
County. Dorsey testified that Delta also has a center at
Clarksdale (situated to the north in Coahoma County) and a
clinic at Greenville (south, in Washington County). As of the
hearing, Delta employed 91 employees in its three facilities.
Dorsey reports to the board of directors. Delta is divided into
four service divisions (medical, dental, home health, and fi-
nancial) whose directors report to Dorsey. (1:27–29, 36.)
Opened August 13, 1990, the satellite clinic in Greenville, its
proposed opening, and the perceived impact of that clinic on
the Mound Bayou (main site or center) employees are at the
center of the controversy in this case.
Concerned about the impact opening and staffing a Green-
ville facility would have on them, Delta’s Mound Bayou em-
ployees raised questions about the proposed opening as soon
as Dorsey announced it at a June 5, 1990 general staff meet-
ing. Raised initially in June as questions by individuals, at
the interim medical director’s monthly staff meeting of Sep-
tember 5 the employee conduct, the General Counsel alleges,
became concerted.5 At trial the parties stipulated that the
conduct of the employees in this respect was concerted (but
no date was fixed), leaving for litigation the question wheth-
er the conduct was protected. (1:16; 2:409–412; 3:761.)
As described at several points in the record and briefs,
Delta’s affirmative defense (G.C. Exh. 1q, August 5, 1991
amendment to answer) is twofold. First, the conduct of the
employees intruded upon managerial prerogatives and was
therefore unprotected. One motivation for this was a pur-
ported personal dislike for Dorsey and/or her managerial
style. Second, the allegations of the charging parties are de-
liberately or maliciously false and made with the bad–faith
intention of defeating or reversing the decision to open a
Greenville facility. The driving motive behind this bad–faith
effort, it is alleged and argued, is local politics in conjunction
with the opposition of Earl S. Lucas, Mound Bayou’s mayor.
In Dorsey’s words, ‘‘they wanted me fired and the [Green-
ville] satellite closed.’’ (1:155.)
However, Ivey B. Odom, the medical records manager
during this period, testified (as a witness for the Govern-
ment) that at a June 5 managers’ meeting Dorsey, in the
course of discussing the Greenville clinic, expressed the de-
sire to convert Greenville into the main site and Mound
Bayou into a satellite, ‘‘and if this is repeated outside this
room, I will deny it.’’ (3:668; 5:995.) Donald Peterson, lab
manager at the time, confirms this. (4:859, 895.) Dorsey
never denied this attributed remark when she testified. Odom
(3:734) and Peterson (4:840) were fired along with the
Charging Parties.
From Mound Bayou the Greenville clinic is about 45
miles south by southwest, or 90 miles roundtrip. (1:37, 181;
3:600.) Opened on Monday, August 13 (1:30, Dorsey;
5:1145, McCaskill; G.C. Exh. 23), the Greenville clinic ini-
tially was staffed by personnel working at Mound Bayou
(transfers and rotations) and by some new hires. (1:184;
3:674.)
Medical staff employees who lived at Mound Bayou and
now were assigned to work 2 days a week (3:598) at the new
clinic in Greenville had to drive there. Some of these em-
ployees expressed concern about the expense and the condi-
tion of their cars being inadequate to withstand such extra
mileage. They also expressed concern regarding a present
staff shortage at the main site. (3:668–669, Odom.) At the
June 5 general staff meeting Dorsey said travel reimburse-
ment would be paid. (1:182, Hill.) Initially that was done
(2:377–378), but by August 28 memo (G.C. Exh. 4) Dorsey
29DELTA HEALTH CENTER
6 Complaint par. 8 alleges that Delta violated Sec. 8(a)(1) of the
Act when Dorsey ‘‘threatened Hill with unspecified reprisals by in-
forming Hill that she was upset and tired of Hill’s critical remarks
made at the [September 5 meeting].’’ Delta denies the allegation.
notified managers that Greenville was part of Delta and em-
ployees reporting to Greenville are not eligible for mileage.
(1:142; 2:378.) ‘‘Therefore, effective September 4, 1990,
mileage will not be paid for travel to the satellite except for
staff who are not scheduled to work in Greenville.’’ Lunches,
too, would be the responsibility of each employee according
to Dorsey’s memo. Dorsey reversed herself as to mileage by
her memo (G.C. Exh. 5) of September 11. (1:142–143;
2:378–379.)
In making the findings which follow, I generally have
credited the General Counsel’s witnesses. This is so not only
because the Government’s version appears more plausible in
light of the record than does Delta’s, but also because the
Government’s witnesses appeared more persuasive than those
called by Delta. I particularly credit the Charging Parties
over Dorsey and Dr. Luther McCaskill.
2. September 1990—Concerted activity begins
During this period Dr. Luther McCaskill was the interim
medical director. At McCaskill’s regular monthly staff meet-
ing on September 5 several questions were raised concerning
the Greenville operation, starting with the travel reimburse-
ment matter. Because McCaskill was unable to answer the
questions, he asked Dorsey to attend. Dorsey came and re-
sponded to these questions. Charging Party Priscilla S. Hill,
then the medical secretary, prepared the minutes (G.C. Exh.
3) of the meeting. (1:191; 2:388.)
As reflected in the minutes of the September 5 meeting,
and in the testimony, after Dorsey joined the meeting she ad-
dressed various issues, the first being that of travel expense.
Thus (G.C. Exh. 3 at 1–2):
1. Mrs. C. [Charlotte] Mosley expressed her concerns
to Dr. Dorsey about the decision to stop reimbursement
for travel to Greenville. Dr. Dorsey stated there is no
funds to continue to do this.
As a followup to Dr. Dorsey’s response, S. [Priscilla
S.] Hill commented maybe we should reevaluate the
status of the satellite clinic, and make some adjust-
ments. Dr. Dorsey replied, we are reevaluating; the
board has asked for the names of employees who refuse
to go along with the health center’s mission.
Charlotte Mosley considered Dorsey’s comment about
names to be threatening. (2:460–462.) Odom testified that
Dorsey’s comment included the explanation that the board of
directors said that such employees needed training in the cen-
ter’s mission since they seem to have forgotten it. (3:679.)
The complaint does not allege Dorsey’s comment about
names to be unlawful.
The next day, September 6, Dorsey called Charlotte Hill
into her office. Referring to Hill’s suggestion the previous
day about reevaluating the Greenville clinic, Dorsey pro-
ceeded to tell Hill that she was tired of Hill’s critical re-
marks, and tired of people not having anything constructive
to offer.6 Dorsey then asked Hill what she would have done
about the travel to Greenville. Hill replied that she would
have tried carpooling instead of paying everyone to drive.
Dorsey said that was a good idea. (1:192–193.) Dorsey does
not deny this conversation, but asserts that Hill made the car-
pooling suggestion at the September 5 meeting. (1:143–145.)
For Hill’s suggestion, Dorsey acknowledges, Hill thereafter
was awarded $50 as the first award of an employee sugges-
tion program. (1:72–73.)
Noting that the September 5 minutes report nothing about
a suggestion for carpooling, and observing Hill’s sincere and
convincing demeanor, I credit Hill and her version of
Dorsey’s September 6 remarks. Dorsey’s remarks, uttered in
the executive director’s office, the locus of official authority,
would tend to strike fear into an employee concerning job se-
curity. Conditioned on my finding the nature of the employ-
ees’ remarks and conduct protected, and particularly the Sep-
tember 5 inquiry by Hill, I find that, as alleged, Delta vio-
lated Section 8(a)(1) of the Act by Dorsey’s implied threat
of unspecified reprisals for concerted activity.
At his September 5 staff meeting McCaskill appointed a
committee to look into the concerns of the medical staff.
Charging Party Ivey B. Odom, then the medical records man-
ager, was appointed as chair. Also appointed were Charging
Party Charlotte Mosley, then a pediatric nurse practitioner;
Nursing Director Marilee Lucas; Dr. Carolyn Eubanks, direc-
tor of dental services (1:89; 2:440) (Eubanks never partici-
pated, 3:683; 5:1022, 1179); Donald Peterson, the lab man-
ager; and Charging Party Priscilla S. Hill. (5:1019, 1096;
G.C. Exh. 3 at 2.) Odom (5:1019) and Hill (5:1096) testified
that the committee’s purpose was to compile a list of con-
cerns to present to the board of directors. Mosley explained
that the list would have to go through Dorsey because she
set the agenda for the board of directors. (2:460; 3:613–614,
616.)
During two meetings thereafter (September 7 and 11), the
committee drafted a two–page paper (G.C. Exh. 44) ad-
dressed from the medical staff committee (naming Odom,
Lucas, Hill, Mosley, and Peterson) to Dorsey with a covering
memo (G.C. Exh. 43), dated September 14, from Odom to
McCaskill. Odom’s cover memo, recounting the appointment
and drafting, asked McCaskill to call a staff meeting to in-
form them of the progress, and closed by stating the com-
mittee would like to submit the memo to Dorsey before the
September 20 meeting of the board of directors. Odom testi-
fied that, in effect, only as a courtesy to McCaskill was a
draft of these concerns submitted to him. (5:1019–1020.)
On September 18, Odom testified (3:686–689; 5:1020–
1021, 1056–1060), McCaskill approved all the draft except
for the remarks in one paragraph on the second page. Odom
said they would be deleted. McCaskill then orally approved
forwarding the memo to Dorsey, and confirmed this later that
day in writing (G.C. Exh. 6). At the hearing McCaskill iden-
tified other items which he felt were incorrect. Because he
had not wanted to impose his will on the committee, he had
said nothing about these other items. (5:1150–1152, 1171–
1172.) I do not believe McCaskill. Nothing would have kept
him from suggesting rather than directing changes, and in his
approval memo he speaks of corrections imposed by him. Fi-
nally, McCaskill’s demeanor was unpersuasive. I find that
McCaskill approved the revised memo with no mental res-
ervations.
The morning of September 19, after Hill had retyped the
memo to Dorsey deleting the portion McCaskill had objected
to, Odom delivered to Dorsey’s office a copy of both
30 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
McCaskill’s approval memo and the committee’s revised
(G.C. Exh. 32) memo. Toward the end of the day on Sep-
tember 19, around 4:45 p.m., Odom delivered to McCaskill
his copy of the two–memo set which Odom had left that
morning for Dorsey. (3:687–692; 5:1021.)
When she made her late afternoon delivery to McCaskill,
Odom testified, McCaskill said (3:688):
Dr. Dorsey has indicated that she is going to close the
Health Center if you all persist in pursuing this.
Replying that she did not think one person could close the
center, Odom asked McCaskill if he agreed that the commit-
tee’s concerns were legitimate. ‘‘Yes,’’ answered McCaskill.
Odom said the committee would proceed to send them [to
the board of directors]. In testifying, McCaskill does not ad-
dress this conversation. I credit Odom who was a persuasive
witness. There is no complaint allegation concerning
Dorsey’s closure threat relayed by McCaskill. Explanation of
the absence apparently lies in the General Counsel’s position
that Odom is a statutory supervisor. (6:1350–1351.)
Addressed and delivered (September 19) to Dorsey, the
committee’s revised memo (G.C. Exh. 32), still bearing the
September 14 date, consists of two pages. At the end of the
memo, and aside from an expression of appreciation and
thanks for Dorsey’s (anticipated) consideration, the com-
mittee requests permission to appear before the board of di-
rectors at its next meeting for ‘‘presentation and discussion.’’
The text reads:
The employees of Delta Health Center, Inc. are com-
mitted to serving the people of Bolivar, Sunflower and
Washington Counties by providing quality health care
to all patients; and hereby declare this to be our mis-
sion.
Since the early eighties, we have made sacrifices
within the center. We have doubled and tripled our
work duties to make sure the functions of our respec-
tive departments are carried out. Even though there are
times when our jobs become depressing and difficult to
perform, we remain dedicated and have served our pa-
tients well.
Just recently DHC opened a satellite clinic in Green-
ville. We have no objection to opening a satellite clinic,
but feel there are other locations in our service area that
need patient care more than Greenville; and we feel this
is not the appropriate time for expansion, at least not
at the magnitude of its present existence; especially in
view of our reduced provider load.
After a discussion in the Medical Staff meeting held
9/5/90, a committee was appointed to discuss and
present to you specific concerns and issues. The com-
mittee met on 9/7 and 9/11/90 and presents the fol-
lowing:
1. We do not have enough physicians to take care
of the needs of our patients. Patients who are presented
for health care are turned away because the providers
are rotating to the satellite clinic. Two of the four adult
physicians and one of the two pediatric poviders see pa-
tients at the satellite clinic twice a week.
2. We do not have a permanent medical director to
oversee the day–to–day operations of the medical divi-
sion; to keep us informed of the guidelines mandated
by the Regional Office, and to see that these guidelines
are adhered to.
Our permanent medical director who was well versed
in his role has resigned. Although he served in a key
position and possessed the kind of leadership ability re-
quired, and we respected him, the Board of Directors
never expressed any interest as to discuss with him the
reason for his resignation. He has since resigned as a
staff physician.
Our acting medical director is one who is very dedi-
cated to providing patient care and has the largest pa-
tient load among the providers. We feel it is unfair to
him and to his patients to have him function in this ca-
pacity for an extended period of time. We need a per-
manent medical director.
3. We do not have adequate support staff in critical
clinical areas; such as X-Ray, Lab, Medical Records,
etc. We have a room full of physical therapy equipment
that is not in use and could be very beneficial to our
patients.
4. Divisional directors/department heads are not
given the opportunity to manage and implement proce-
dures within their respective division/department.
There are times when department heads and/or divi-
sional directors are not aware of changes made in their
particular department. Instructions are handed down to
[a] staff person in a given department without the
knowledge of the supervisor.
5. Our Personnel Policies and Procedures Manual is
not always followed. From time to time, policies and
procedures as stated in the Manual are changed to fit
the occasion. In our opinion, the Personnel Policies and
Procedures Manual is that document which governs an
institution, determines the management system of that
institution, and contributes greatly to its survival or fail-
ure.
The satellite clinic has only been in operation a
month and already we are experiencing staffing and
funding problems. Each day we see our facility taking
a dive for the worse and it’s so painful to see how we
are setting a downward trend and not be able to say or
do anything about it. We hope our concerns will not be
construed or conveyed as just invalid criticism.
We request permission to appear before the Board of
Directors at its next meeting for presentation and dis-
cussion.
Your consideration is greatly appreciated.
By memo (R. Exh. 13) dated September 17, Dorsey re-
minded the members of the board of directors that a meeting
of the board was scheduled for September 20 at 5:30 p.m.
to be followed by a grievance meeting at 7 p.m. (6:1271,
1277.) The 7 p.m. grievance was on a matter unrelated to
this case. (R. Exh. 14; 6:1272.)
By her memo (G.C. Exh. 7) dated September 19, Dorsey
forwarded the medical staff committee’s September 14 memo
(G.C. Exh. 32) to members of Delta’s board of directors.
Stating she had received the memo that morning from Odom,
Dorsey observes that the committee ‘‘did not request a meet-
ing with me or a response to the concerns listed. They re-
quest, instead, permission to appear before the board at its
next regular meeting for presentation and discussion.’’ Dor-
31DELTA HEALTH CENTER
sey concludes her transmittal by stating she is forwarding the
memo because she has no authority over who the board al-
lows to come to its meetings, ‘‘and since their intent is to
talk to the board about these concerns.’’
On September 20 Dorsey (1:149–150) had separate con-
versations in her office with Mosley (2:458) and Odom
(3:710; 5:1021) in which Dorsey, in the presence of certain
division managers, requested specific examples of the ex-
pressed concerns. Each responded, or suggested, that she
would provide specifics if Dorsey would summon the full
committee for the discussion. Dorsey declined, telling
Mosley that the committee was bypassing her. (2:458.)
Failing with her oral requests, Dorsey, that afternoon, by
memo (G.C. Exh. 8) to Odom as chair of the medical staff
committee, requested Odom to ‘‘reduce to writing the spe-
cific instances where these violations have occurred,’’ citing
allegations Nos. 4, and the unnumbered paragraph following
it [directors and departments not given opportunity to man-
age and sometimes are bypassed] and 5 [personnel policies
and procedures manual not always followed], ‘‘as no division
director is aware of any such charges.’’ Dorsey instructed
Odom to submit her response by 5 p.m. for Dorsey’s review
before the meeting that evening of the board of directors.
This led the committee to believe they would be on the
board’s agenda for that evening. (1:214; 2:423–426, 442,
Hill; 2:478, Mosley.)
Odom, as chair, responded in writing. (G.C. Exh. 33;
1:101; 3:706.) Briefly describing the morning’s conference,
and of receiving Dorsey’s memo at 3:40 p.m., Odom states,
‘‘Here are the specifics.’’ For item 4 Odom lists:
1. Pulled a nurse from the Nursing Department for
triage without nursing director’s knowledge.
2. Pulled lab tech out of the Lab to report to the sat-
ellite clinic for an extended period of time without in-
forming the lab manager.
For item 5 Odom lists:
1. Pay schedule change.
2. Leave Form change.
Charlotte Mosley testified that as she walked over to get
her mail around 11 a.m. that September 20, about an hour
after Dorsey had called her into her office to discuss the
committee’s concerns, she observed Dorsey standing in the
hallway talking with Gracie Sanders, the financial director.
When Mosley appeared, Dorsey, raising her voice and look-
ing directly at Mosley, said ‘‘The folks in Atlanta are tired
of these people around here. What I’ll do is just close this
place for 90 days.’’ (2:467, 476; 3:546–549.) Dorsey does
not address this incident, and Sanders did not testify. Al-
though I credit Mosley, the complaint does not allege
Dorsey’s remark to be an unlawful threat, and the General
Counsel seeks no finding in this regard. Before attending the
meeting that evening of the board of directors, Mosley in-
formed the other committee members of Dorsey’s threat.
(2:475–476.)
3. The September 20, 1990 meeting of the board
of directors
The September 20 meeting of the board of directors was
held in Delta’s conference room beginning a few minutes be-
fore 6 p.m. Odom and the medical staff committee (Odom,
Hill, Lucas, Mosley, and Peterson) attended. In presenting
her executive director’s report, Dorsey told the board mem-
bers that the September 14 memo (G.C. Exh. 32) was from
a group of troublesome, disgruntled, and uncooperative polit-
ical activists who opposed opening a satellite clinic at Green-
ville, who wanted the Greenville satellite closed and Dorsey
fired, and that the group was trying to get the physicians to
strike. (1:212; 2:427, 477; 3:713; 5:1064.) Dorsey therefore
asked the board for permission to close the main facility for
90 days in the event there was a strike. Dorsey’s motion was
tabled. (1:109, 212; 2:427, 477; 3:713; 4:830, 896.)
When Odom, toward the close of the meeting, raised her
hand to speak, she was ruled out of order (one member dis-
senting) as not being on the agenda.
Dorsey testified that the minutes (R. Exh. 12) for the Sep-
tember 20 meeting were prepared by Willie Mae Sims, ap-
parently Dorsey’s administrative assistant. After (presumably)
the chair and secretary sign, the minutes are distributed to
the members. (6:1273–1275.) In this case the chair, Estelle
Pryor, did not sign until October 30. Patterson’s signature is
not dated. (R. Exh. 12 at 7.) It is clear, and I find, that Dor-
sey dictated the contents of the minutes for Sims to type. Be-
cause I find Dorsey generally not a credible witness, I find
the minutes—dated much later and perhaps not prepared
until after the discipline administered by Dorsey—to be unre-
liable. Thus, even though the minutes do not record Dorsey
as describing the committee as ‘‘troublesome,’’ or as solic-
iting a strike, as the employees testified Dorsey did, I credit
the employees, Hill, Mosley, Odom, and Peterson. The min-
utes do record Dorsey stating, ‘‘It appears that the objective
of the committee is to close the satellite.’’ (R. Exh. 12 at 6,
par. 3.) Testifying that she does not ever remember calling
the employees troublemakers, Dorsey concedes that (on some
unspecified date or occasions) she has called them disgrun-
tled. (6:1218.)
On leaving the meeting the committee gathered in the
lobby where they discussed the situation. Concluding that
Dorsey ultimately would be allowed to close the Mound
Bayou center for 90 days, that such a closing probably would
become permanent with the employees losing their jobs, the
committee, seeing no other option, decided to send a letter
to the board of directors with copies to Dorsey and HHS’
Public Health Service. (1:215; 2:479; 3:724–730.) Thereafter
such a letter (G.C. Exh. 34; R. Exh. 3) was drafted. Dated
September 25, the letter, typed by Hill (2:388), was mailed
on September 26. (1:216; 2:480; 3:558, 730; 5:1048.)
4. The letter dated September 25, 1990
a. Board agrees to meet with committee
By memo (G.C. Exh. 9) dated and delivered September
25, Dorsey advised Odom that Delta’s board of directors
would hear the committee’s concerns on October 11 at the
‘‘Center in Greenville.’’ Dorsey also advised Odom that the
board would have several agenda items, and when Dorsey
learned the times for the agenda settings she would notify
Odom. A notation on the memo reflects that Odom received
the memo from W. Sims [Willie Mae Sims, Dorsey’s admin-
istrative assistant] at 4:35 p.m. that day. (3:729; 5:1047.)
The Charging parties testified that, notwithstanding their
September 25 receipt of Dorsey’s memo about their October
32 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 appearance before the board of directors, they neverthe-
less, on September 26, sent their letter dated September 25.
They did so because they feared the board would first dis-
cuss the tabled motion to give Dorsey standby authority to
close the Mound Bayou facility for 90 days, or even to close
the facility, before the committee had a chance to voice its
concerns. Moreover, the choice of Greenville as the meeting
place dismayed the committee in light of Dorsey’s request
for standby authority to close Mound Bayou for 90 days—
particularly in light of Dorsey’s June 5 expression of her
goal to elevate the approved Greenville satellite to the main
site. Finally, the board’s September 20 refusal to hear Odom,
on behalf of the committee, left the committee distrustful of
the board of directors.
Indeed, Odom testified (3:727) that when the committee
gathered in the lobby after the board’s September 20 meet-
ing, Peterson reported overhearing board member Evelyn
Peggy remark to another board member, ‘‘We got that com-
mittee tonight, didn’t we.’’ The result was an atmosphere
that left the committee members alarmed.
The committee’s September 25 letter, addressed to Del-
ta’s board of directors, shows copies to Dorsey, ‘‘Re-
gional Office,’’ and ‘‘Central Office.’’ The latter two
are HHS’ Public Health Service (PHS) regional office
in Atlanta and PHS’ central office in Maryland. (2:300,
Hill.) The committee, aware of no rule forbidding com-
munication with the PHS, sent copies to the PHS for
most of the reasons it sent the letter to the board, and
‘‘to get the attention of somebody in authority.’’
(2:299; 3:730.) As Mosley puts it, the committee
thought the PHS should know. ‘‘We wanted to be
heard.’’ (3:560.)
b. The letter
Signed by Odom, Mosley (Odom signed for Mosley with
the latter’s permission, 3:558), Marilee L. Lucas, Donald N.
Peterson, and Hill, the September 25 letter to the board of
directors consists of 3 pages, 16 unnumbered paragraphs, and
5 attachments. I shall number the paragraphs. After a ‘‘Dear
Board’’ salutation, the letter reads:
1. The Medical Staff Committee is very disturbed
over the fact that Dr. L. C. Dorsey, Executive Director,
misled us in thinking we would be placed on the agen-
da for the board meeting of September 20th; and also
because the board chose not to give us an opportunity
to speak.
2. Dr. Dorsey deliberately and intentionally denied
us this opportunity, in spite of the fact, at 3:40 p.m. this
same day, she requested in writing from the committee,
the specifics we had planned to discuss in the meeting;
and she wanted this information by 5:00
3. This committee was appointed by the Acting Med-
ical Director, Dr. McCaskill, because staff had some se-
rious concerns about the satellite and the overall man-
agement of the center. We were formed to meet, dis-
cuss and prepare a presentation to the board.
4. Instead of placing the committee on the agenda,
Dr. Dorsey received this information and used it in
such a way to try and convince the board that we were
a group of uncooperative and troublesome employees.
We made a request to Dr. Dorsey for one reason and
one reason only – to state staff concerns before the
body. We simply want to identify all problems, work
out solutions beneficial to the agency as a whole, and
form a united body to regain our viable program status.
It is not our intent to point a finger or place the blame
on anyone. Even though Dr. Dorsey discussed some of
the issues we had planned to discuss, the board denied
us the opportunity to refute her gross misrepresentation
of the truth by invoking Robert’s Rules of Order. Ac-
cording to the same rules, isn’t it proper that you clar-
ify, at the point of adopting the agenda, whether there
are other items that need adding and accept or reject
these items at that point; or to simply state to the body
that no additional items will be placed on the agenda?
Isn’t it also improper procedure to allow a topic to be
introduced (as did Dr. Dorsey) that you do not intend
to give fair hearing to all parties involved? Dr. Dorsey
was allowed to introduce our request to be placed on
the agenda and give her scathingly erroneous assess-
ment of us and our concerns but you offered us no op-
portunity to comment as to the validity of the issues she
presented. This was totally unfair.
5. In the meeting, Dr. Dorsey stated the committee
was forcing providers to strike. There is no impending
strike by any staff. We are all concerned about the di-
rection our center is taking; not politically but inter-
nally. If you recall, concerns were addressed prior to
opening the satellite, about the ability to operate with
reduced staff and about the drain on funds—no separate
budget allocated for the satellite (see Attachments #2 &
3). It was suggested and totally rejected, that we start
small initially with the satellite and advance as per-
sonnel and funds became available. Other concerns
were also addressed but not considered.
[Attachment 2 is a one-page memo, G.C. Exh. 29
dated June 7, from Hill to Dorsey (individually ex-
pressing her concerns about the impact of a Green-
ville satellite) and Dorsey’s June 14 brief response,
G.C. Exh. 2, converying reassurance but expressing
disappointment ‘‘that you list all your criticisms
without inquiring as to their validity.’’ Attachment 3,
G.C. Exh. 30, is Odom’s June 12 four–page memo
expressing her concerns, and Dorsey’s June 14 five–
page reply, G.C. Exh. 31.]
6. Dr. Dorsey asked for a motion to close this center
for 90 days, without discussing this matter with staff.
The board asked no questions, except for one board
member who suggested to table this matter; and call a
special meeting to discuss the closing of the health cen-
ter. Thank God for giving that person the conviction to
speak out! On considering the matter of the center
being closed because staff is dictating to doctors to go
on strike, remember that the medical director is the
head of all medical services. He is responsible for all
patients and those who work under his jurisdiction have
to abide by his orders, not vice versa. He, of a neces-
sity, is on the same level as the center director in re-
porting and is responsible to the board. We must note,
however, that the medical director’s report to the board
is given by the center director instead of the medical
33DELTA HEALTH CENTER
7 ‘‘Give ear, O heavens, and I will speak; and hear, O Earth, the
words of my mouth.’’ Dt. 32:1. (The Song of Moses, opening verse.)
director. Is this the customary procedure in other agen-
cies?
7. The request to close the center must be viewed for
what it is, a suppressive ploy to intimidate those who
see and speak out about the wrongful tactics employed
to dominate staff.
8. Can the board justifiably consider discounting the
needs of 80% of our patients to serve only 20%, simply
because valid concerns are looked upon as political ac-
tivism to close the Greenville clinic? It was stated prior
to the opening of the satellite by Dr. Dorsey that her
intention was to make the satellite the main clinic and
DHC a satellite and her statement ended with, ‘‘if this
is repeated outside this room, I will deny it.’’ This
statement was made in the presence of several employ-
ees (providers & department heads) the first week in
June 1990. Does this reflect genuine concern for the vi-
ability of the DHC agency in its entirety, or just ‘‘her
program’’ as she continuously refers to the satellite op-
eration.
9. Since the opening of the satellite, Dr. Dorsey has
devoted most of her time and energy toward the sat-
ellite. All of her recruitment has been geared toward
staffing the satellite, with little emphasis placed here at
the center. She has shown no genuine concern, and has
not openly admitted the fact that the opening of the sat-
ellite has affected the health center. She has told the
board no physician wants to come here to work; always
giving the impression that Mound Bayou is so terrible.
Dr. Dorsey came here to work and was given the re-
sponsibility of managing this health center. She knew
what Mound Bayou was all about, and yet she chose
to remain. Dr. Dorsey has been found guilty on numer-
ous occasions of telling the board and staff on thing
and in the absence of each other, has misrepresented
the truth.
10. Dr. Dorsey, in the meeting of 9/20/90, made a
comparison of August 1989 to August 1990 of the pro-
vider productivity report; stating the total encounters
were lower in 1990 than in 1989. This is true, but she
failed to let the board know that providers were out on
vacation during the month of August, at one time or an-
other.
11. Dr. Dorsey stated she did not know Dr. Fuchs
was resigning until after the satellite had opened. Dr.
Fuchs submitted his letter of resignation July 19th and
the satellite clinic opened August 13th (see Attachment
#4). She also knew one of the other physicians’ obliga-
tion would be up this September. [Attachment 4 is a
July 19 letter from Dr. Paul Fuchs to McCaskill in
which Fuchs resigns from the medical staff.]
12. The Financial Services Director, Mrs. Sanders,
gave the board a financial and statistical report on the
satellite, but did not give a report on the status of the
health center. If the computers were down, Mrs. Sand-
ers could have secured the health center’s information
the same way she gathered the information for the sat-
ellite.
13. Realistically, the satellite has no expenditures be-
cause all expenses are applied to the health center. The
satellite was started without a budget. Personnel, sup-
plies and some equipment were moved to the satellite.
In view of the above, if one has to close, then it should
be the satellite, as it has no approved operating budget.
14. We ask that the board be fair to staff; give ear7
to our concerns and opinions, as you have given Dr.
Dorsey in the meeting of September 20th. We request
that the board or a representative committee sit down
with the staff, and Dr. Dorsey, hear what we have to
say; see our supporting documents, and make a fully-
informed decision.
15. We respectfully request the following:
1. A special meeting to address concerns about the
survival of DHC prior to the 10/11/90 meeting in which
you will act on Dr. Dorsey’s request for permission to
close DHC—main site—for 90 days (see Attachment
#5); [Attachment 5, G.C. Exh. 9, is the September 25
memo from Dorsey advising Odom that the board of
directors would hear the committee on October 11 in
Greenville.]
2. That the meeting be held at DHC in Mound
Bayou, MS as this is the community and county that
are threatened with loss of a much needed health care
industry.
16. Your prompt response is greatly appreciated.
By his memo dated September 28 (G.C. Exh. 10), stating
that the September 25 letter, with copies to the PHS offices,
was sent without his knowledge or permission, and that the
committee had gone ‘‘over my head,’’ McCaskill disbanded
the committee. (2:290, 485; 3:371; 5:1153.) Later I discuss
the September 25 letter.
5. Dorsey reprimands the committee
a. Cease-and-desist letter of September 30, 1990
By two-page memos dated September 30 (G.C. Exh. 11)
to all five members of the committee (1:82; 3:731), including
one to Hill (2:290–291) and to Mosley (2:486–487), with
copies to the personnel files of each (1:83), Dorsey (1:82,
88) states that the committee was ‘‘out of order’’ in sending
its unauthorized letter dated September 25 to the PHS. ‘‘Fur-
ther, the memo, which is a poorly disguised attack on the
board of directors and the executive director contained lies
and half–truths, put together in a conspiratorial manner to
hold the director and the board up to public ridicule and crit-
icism.’’
Asserting that the committee’s letter states no grievances,
contains ‘‘deliberate lies,’’ bypasses her without any enabling
provision in the policies and procedures [manual], demands
that the board change a meeting location, and shows dis-
respect for the board of directors, Dorsey instructed the
members of the former committee to ‘‘cease and desist’’
from their ‘‘campaign of disruption and personal attacks by
lies and innuendos.’’
Concluding, Dorsey advises the members that they ‘‘are in
violation’’ of the policies and procedures ‘‘if’’ they are con-
ducting unauthorized activities, and that sending unauthorized
memos to the PHS ‘‘is a serious offense and as such is being
referred to your personnel file in as much as the contents of
34 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the memo violates several provisions of DHC’s policies and
procedures.’’
Rule violations specified by Dorsey, from the personnel
policy manual (G.C. Exh. 26), are for violating Federal regu-
lations restricting political activity (standard policy 2, p. 29),
willful misconduct (rule 7g, p. 31), misconduct or maladmin-
istration (rule 7i, p. 32), falsification of Delta records (rule
7k, p. 32).
b. Complaint paragraph 9
Complaint paragraph 9 describes Dorsey’s cease–and–de-
sist letter as a ‘‘written reprimand’’ to employees Hill and
Mosley, and paragraph 12 alleges that Delta violated Section
8(a)(1) of the Act by the reprimands. Delta denies the allega-
tions. My conclusion on the allegations depends on the deter-
mination of whether the committee’s conduct was protected.
If protected, then I find that the ‘‘cease and desist’’ memo,
clearly a written warning, violates the Act as alleged.
As for complaint allegations and Delta’s rules, the com-
plaint does not attack Delta’s standard policy 13a, ‘‘Solicita-
tion and Canvassing,’’ even though the rule requires employ-
ees organizing under the Act on behalf of a labor union to
obtain written authorization. Authorization requirements are
unlawful. Brunswick Corp., 282 NLRB 794 (1987); Spring-
field Hospital, 281 NLRB 643 fn. 3 (1986), enfd. 899 F.2d
1305 (2d Cir. 1990). In the absence of authorization, the rule
continues, no organizing may occur anywhere on Delta’s
premises at any time. Such a total prohibition is unlawful.
Rocky Mountain Hospital, 289 NLRB 1347, 1359–1361
(1988). The rule reads (G.C. Exh. 26 at 34):
Except as authorized in writing by the executive direc-
tor, all soliciting and canvassing by or on behalf of any
club, society, labor union, religious organization, polit-
ical party or similar association and posting or distribut-
ing of notices, placards or literature of any sort by em-
ployees and other[s] not employed by the Delta Health
Center, Inc., is strictly prohibited at all times on the in-
stitution premises. This prohibition covers soliciting in
any form, whether for membership, for subscription or
for payment of money. Announcement of this prohibi-
tion shall be conspicuously posted on each public and
employee entrance to the Delta Health Center, Inc.
Because the complaint does not attack this unlawful rule,
and because the matter was not litigated, I make no finding
of an unfair labor practice respecting the rule.
6. Grievance hearing of October 17, 1990
a. Introduction
Events caused a delay in the committee’s appearance be-
fore Delta’s board of directors, but beginning about 6 p.m.
Wednesday, October 17, in Delta’s conference room at
Mound Bayou the (former) medical staff committee appeared
before the board’s personnel committee. (G.C. Exhs. 17, 19.)
The meeting was pursuant to the October 1 letter (G.C. Exh.
13) from the chair, Estelle Pryor, that the board’s executive
committee, determining that the September 25 letter ‘‘con-
tained what can be considered as employees’ grievances,’’
had decided that ‘‘they should be heard in accordance to the
Health Center’s Personnel Policies and Procedures Manual.’’
And, ‘‘I have requested the Personnel Committee to treat
your letter of September 25th as a formal grievance.’’
b. Board Chair Estelle Pryor’s October 15, 1990
recommendations
Two days before the meeting at which the board’s per-
sonnel committee finally would hear the employees’ presen-
tation, Pryor, by October 15 memo (G.C. Exh. 27) to her fel-
low board members, submitted three pages of recommenda-
tions for their ‘‘consideration and possible action.’’
Respecting Delta’s personnel policies and procedures,
Pryor recommended (par. 1a) that the personnel committee of
the board meet with a committee of aggrieved staff only
when a majority of the staff has a grievance which they have
been unable to resolve with the executive director. Second
(1b), ‘‘Stipulate that no staff member make contact with
H&HS in the regional office or central office without ap-
proval by the Executive Director.’’
Turning to directives for the executive director, Pryor rec-
ommended (3a) that the board’s attorney and the executive
director ‘‘determine if federal laws are being violated by
staff members who engage in protest activities during work
hours, and/or use Delta Health Center supplies and equip-
ment in their protest efforts.’’ For her last recommendation
(3g) Pryor wrote:
Only legitimate staff committees should be allowed to
voice the concerns of a department or division. The
former medical staff committee has been disbanded by
the medical director, who appointed the committee, and
is therefore only individual staff members who are de-
manding to appear before the board. They are in viola-
tion of the personnel policies and procedures and
should be given ten (10) days to submit their resigna-
tions if they do not want to work at Delta Health Cen-
ter. After ten (10) days, if they have not resigned, they
should be terminated on the grounds that their actions
are interfering with the Board’s mission of providing
services to people in Bolivar, Washington and Sun-
flower counties. Further, they are trying to run the cen-
ter and they have not been hired to do so, nor have
they been hired to interfere with the board by going to
Health and Human Services with complaints before the
board has had a chance to act on the merit of their
complaints.
The record contains no copy of any responses to Pryor and
does not disclose what action, if any, the board of directors
took respecting her recommendations. The complaint con-
tains no allegation attacking any amendment to the policies
manual restricting the right of an employee to contact the
PHS. Pryor, who lives in Greenville (2:428, Hill), did not
testify.
c. The meeting
The meeting, which exceeded 2 hours, was recorded and
transcribed by a court reporter. The 92-page transcription is
in evidence as the first part of General Counsel’s Exhibit 19.
(1:208; 2:288, 308, 492.) Two sets of documents are at-
tached, continuing the page sequence. The first set, offered
there (at 90) by the board of directors’ attorney, Willie Bai-
ley (Delta’s co-counsel here) consists of the September 25
35DELTA HEALTH CENTER
letter and the five attachments, numbered as pages 93–109.
The second set, numbered as pages 110–133, consists of the
group’s opening statement, a three–page listing and discus-
sion of specific concerns (G.C. Exh. 19 at 112–114), plus
copies of memos and forms.
As the (disbanded) committee’s chair, Odom, now the
group’s spokesperson, presented the group’s 24–page pack-
age by reading the opening statement, the three–page listing
of specifics, and discussed the memos and forms in connec-
tion with the specifics. (G.C. Exh. 19 at 2–18; 3:619, 741;
4:789.) Thereafter most of the seven members of the board’s
personnel committee (chaired by Bruce Johnson) asked ques-
tions or made statements, as did Attorney Bailey, and as did
each of the five members (Hill, Lucas, Mosley, Odom, and
Peterson) of the disbanded medical staff committee. The dis-
cussion ranged from informative to spirited to slightly heat-
ed. When the meeting adjourned at 8:20 p.m. (G.C. Exh. 19
at 91), it seems that the employee group perhaps had not
achieved its stated (G.C. Exh. 19 at 110) goal of persuading
the board of directors to, in effect, investigate the group’s al-
legations.
Although some of the testimony before me was directed
toward the positions and dialogue expressed at the October
17 meeting, I shall not summarize the meeting because there
is neither allegation nor contention that the October 22 dis-
charge was based even partly on what occurred there. To the
extent that statements there shed light on relevant matters, I
shall summarize or discuss them.
At the meeting Attorney Bailey inquired whether the
group was saying it would be satisfied if (1) the Greenville
satellite was closed and (2) Dorsey fired. Hill advised him
that such was not what the group was saying. (G.C. Exh. 19
at 36, 68.) Toward the end of the meeting board member
Alice Redfield, although in one breath assuring Peterson and
the group that ‘‘Tonight will not be used against you,’’ in
the next breath wondered if the group appreciated the ‘‘seri-
ousness’’ of its sending the September 25 package to the
PHS. Thus (G.C. Exh. 19 at 74):
If you were the medical [executive?] director, how
would you feel if somebody talked about you and the
board? See, you talked about the board. Everybody was
talked about; the director and the board was talked
about in this letter and then [the letter and attachments]
faxed and sent down to Atlanta and to Washington.
How would you all feel about that? I mean, the seri-
ous—that’s very serious. Do you all realize the serious-
ness of that?
Marilee Lucas defended by saying that at the September
20 board meeting the group was labeled (by Dorsey) as
being ‘‘rabble–rousers’’ causing a lot of problems but were
not given a chance to defend themselves at the meeting.
‘‘Everything that we said, there is something attached to go
along with it. We did not degrade anyone.’’ It was not the
content, Redfield replied, but the fact it was sent at all. (Id.
at 75.) When Lucas inquired whether Redfield was saying
the group should have gotten permission, Redfield answered
no, but they should have thought twice before sending such
a letter. They did, Lucas responded. ‘‘Ms. Odom just ex-
plained in detail to you why we did what we did.’’ (Id. at
75–76.)
Peterson then pointed out that the most ‘‘pressing’’ factor
in the group’s decision ‘‘was the fact the closure of the
Health Center was asked for.’’ If it had been closed for 90
days, Peterson continued, the group feared the Mound Bayou
center would be lost. The group’s members therefore felt
they had to contact someone because they believed, perhaps
mistakenly, that the board of directors did not want to hear
them. Earlier (id. at 55–56) Peterson had described the
group’s mailing of the September 25 letter as a sign of the
members’ ‘‘desperation.’’ (Id. at 75–77.)
Odom added, ‘‘once you close a facility down, it’s not
easy to open it back up. And this is what we were concerned
about.’’ (Id. at 78–79.) Johnson, the chair, reported that had
the group waited a few days they would have learned that
they were on the agenda of the next board meeting, but the
(September 25) letter ‘‘canceled’’ that. (Id. at 82, 87.)
When Johnson adjourned the meeting he did not state what
procedural action the personnel committee would take next.
(G.C. Exh. 19 at 90–91.) Earlier, however, Johnson said that
if the group had grievances or concerns the personnel com-
mittee could consider, ‘‘I assure you that we’re going to look
into them and make suggestions to Dr. Dorsey or whatever.’’
(G.C. Exh. 19 at 28.)
7. Dorsey fires the group
By memo (G.C. Exh. 18) dated October 22, Dorsey fired
each of the group, the members of the now dissolved med-
ical staff committee. (1:123, 141; 2:297, 492; 3:735.) The de-
cision, Dorsey testified, was hers alone. (1:62, 153.) Dorsey
testified that the discharge memo contains all the reasons for
the discharge of the group. (1:170, 172.) The discharge
memo (I have numbered the paragraphs 1 through 11) reads:
1. Delta Health Center was found and exists to pro-
vide health care for patients who were underserved. The
current grant provides for the delivery of health care to
patients from Bolivar, Sunflower and Washington coun-
ties. The specific logistics for how these services will
be provided is outlined in the grant application and ap-
proved by the board of directors before it is submitted
for funding. The grant is made to the board of directors
of Delta Health Center. The notice of grant award is
made directly to the board chair, Mrs. Estelle Pryor.
The contractual obligation of the board to carry out the
program goals is the exclusive responsibility of the
board. They have delegated that responsibility to the
executive director.
2. Your actions in past weeks have challenged the
board’s right to govern this program and their right to
delegate the day to day operations of the program to the
executive director.
3. Beginning with your memo dated September 14,
1990, you have not stated a grievance which would jus-
tify the disruptive activities that you have conducted at
the center and in the community. The specifics of your
concerns were:
1. We do not have enough doctors.
2. We do not have a permanent medical director.
3. We do not have adequate support staff in crit-
ical areas such as x-ray, lab, and medical records.
36 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4. Divisional directors/department heads are not
given the opportunity to manage and implement pro-
cedures within their respective division/departments.
5. Personnel policies and procedures are not al-
ways followed.
4. I concur that we do not have enough doctors or
a permanent medical director. It is an issue that the
board of directors and the regional office of Health and
Human Services were aware of and were working with
Dr. McCaskill and me on correcting. This concern does
not constitute a grievance.
5. Whether there is adequate support in the listed
areas is covered by Health and Human Services support
staff ratios to medical providers. This concern does not
constitute a grievance.
6. Divisional directors and department heads are re-
sponsible for the running of their divisions and depart-
ments. However, no department or division is greater
than the entire operation. Occasionally decisions are
made that reflect the need of the entire operation. The
division directors are always involved in any decision
that affects any department in the division. This con-
cern does not constitute a grievance.
7. The personnel policies and procedures are fol-
lowed in the operation of the center. The specific exam-
ple that you cite is a pay schedule change (which the
board approved) and a change in the leave form (which
changed the form to conform with the specific provi-
sions in the personnel policies and procedures) does not
constitute a grievance.
8. Your actions during the past weeks have created
an atmosphere of tension and confusion in the center
and in the community. Your response to the board of
directors who have attempted to work with you on the
complaints listed, has been disrespectful, hostile, and
demeaning.
9. Your activities make it difficult for the doctors
that you demand to be recruited. The failure to recruit
physicians jeopardizes the health center’s survival. Our
ability to provide a peaceful environment for profes-
sionals to be recruited to is jeopardized by the atmos-
phere that you are creating with your activities.
10. Effective today, October 22, 1990, at the close
of the workday, you are terminated from employment
at Delta Health Center. Your termination is covered
under the rules of good conduct and fair play which in-
clude, but are not limited to:
1. Intentionally seeking to disrupt the operation of
the health center through an organized campaign of
misinformation, intimidation and confusion directed
at staff members, board members, patients and the
regional and central offices of Health and Human
Services.
2. Intentionally circumventing the lines of author-
ity by:
a. demanding a meeting with the board of direc-
tors in absence of a grievance and in defiance of the
executive director’s efforts to the program in an or-
derly manner.
b. sending written complaints directly to Health
and Human Services’ regional and central offices
without giving the executive director and the board
of directors an opportunity to hear and act on these
complaints.
c. rejecting the proffered date and place granted
by the board to hear your complaints, and demanding
to set the terms of the meeting with the governing
board.
3. By engaging in conduct which has caused the
health center and the entire staff to be subjected to
public speculation through a campaign of negative
and false information and which has caused unneces-
sary anxiety in the community and in the patient
population who, based on misinformation feared that
the center was closing. Your paychecks, vacation pay
and severance pay are available in the Human Re-
source office. Any monies owed Delta Health Center
by you for health care services that you have re-
ceived has been deducted from your final check.
A statement of your account is attached showing
the balance due.
11. Your termination may be appealed to the per-
sonnel committee of the board.
Among the copies shown at the end of the discharge letter
is one to Paul Bond at the PHS’ Atlanta regional office. The
record does not disclose whether any of the five, and particu-
larly employees Hill or Mosley, appealed.
B. Discussion
1. Introduction
Executive Director Dorsey’s disciplinary memos of Sep-
tember 30 (G.C. Exh. 11; ‘‘cease-and-desist’’) and October
22 (G.C. Exh. 18; discharge) largely merge even though her
reprimand (cease and desist) memo focuses on the medical
staff committee’s September 25 memo (G.C. Exh. 34; R.
Exh. 3) and her discharge memo reaches back to the commit-
tee’s September 14 memo (G.C. Exh. 32).
It is well established that even if employees’ perception of
their working conditions turns out to have been incorrect,
such an incorrect assessment is not sufficient to remove ac-
tivity based on those perceptions from the protection of the
Act. Tyler Business Services, 256 NLRB 567, 568 (1981),
enf. denied on basis not concerted 680 F.2d 338 (4th Cir.
1982).
Moreover, it is well settled that the truth or falsity of a
communication is immaterial and is not the test of its pro-
tected character. Professional Porter Cleaning Co., 263
NLRB 136, 139 fn. 12 (1982). However, protection will be
lost if the communication is deliberately false in order to sat-
isfy a malicious or otherwise improper motive. Brownsville
Garment Co., 298 NLRB 507 (1990). As the Board recently
expressed the rule in El San Juan Hotel, 289 NLRB 1453,
1455 (1988), although the Act protects statements that are
false, misleading, or inaccurate, as well as rhetorical hyper-
bole that is likely to be recognized for what it is, the Act
does not protect information that is ‘‘deliberately or mali-
ciously false,’’ or made with ‘‘reckless disregard for the
truth.’’
In our case Delta, as an affirmative defense, has placed in
issue the committee’s good faith. As earlier described, Del-
ta’s position is that the committee was motivated to submit
37DELTA HEALTH CENTER
malicious lies for two reasons: (1) to get Dorsey fired and
(2) to oppose, for political reasons, the existence of the
Greenville satellite clinic. If the committee lied for these rea-
sons, such misconduct would remove the committee’s Sep-
tember 14 and 25 memos from the Act’s protection. It there-
fore is necessary to examine the committee’s memos and de-
termine whether the evidence shows they contained such de-
liberate falsehoods that would cause a forfeiture of the Act’s
protection.
2. Committee’s concerns
a. The September 14, 1990 memo
(1) Physician shortage
The committee’s overall concern, as described or implied
in its September 14 memo (G.C. Exh. 32) to Dorsey, was the
impact the recently opened satellite clinic in Greenville
would have on the main site (Mound Bayou)—its patients
and staff. Causing that concern were several issues which the
committee listed, the first being a physician shortage.
The number of doctors is important to both patients and
staff. If patients are turned away at Mound Bayou because
(as asserted in the September 14 memo) the providers are ro-
tating to the Greenville clinic, then the number of encounters
drops at Mound Bayou. As I described earlier, funding is
based on the level of encounters (patients ‘‘seen’’). Past ex-
perience teaches, as I noted in the part of this decision dis-
cussing jurisdiction, that a reduction in funding results in a
loss of jobs. Donald Peterson, the former lab manager, testi-
fied that he was understaffed in the lab. (4:823–827.)
Patients were turned away because some the providers
were in Greenville. (3:694; 6:1333, Odom; 4:890–891, Peter-
son.) (Although Mosley testified, 3:626, that certain forms in
the October 17 package, G.C. Exh. 19 at 115–116, show the
numbers of patients turned away, the testimony does not cor-
relate the data with providers being at Greenville.) When the
Greenville satellite opened, the doctors had to cover both fa-
cilities. This imposed extra work on the support staff.
(1:197–200, 206–208; 2:415, 434–437; 3:692–693.)
(2) No permanent medical director
The committee’s second itemized issue is that there is no
permanent medical director. As Odom explains, this is linked
to quality which in turn connects to funding. The medical di-
rector’s position is about 20-percent administrative, and part
of those duties is to monitor quality assurance. McCaskill,
the acting medical director, carried the highest patient load
and seldom was able to have a meeting of the quality assur-
ance committee, of which Odom was a member. (2:376–377,
422, 471; 3:694–696; 6:1339.)
McCaskill’s testimonial response is that ‘‘I think any
qualified physician on our staff could take care of quality as-
surance.’’ (5:1152.) As already noted, in making his single
objection to the September 14 memo, McCaskill said nothing
about the quality assurance concern. (5:1172.) Crediting
Odom, I find that the evidence falls woefully short of show-
ing bad faith by the committee on the issue of quality.
In the discharge memo Dorsey concedes that Delta has
neither a permanent medical director nor enough doctors, but
that management, the board, and the PHS are working to re-
solve these matters. (G.C. Exh. 18 at 2, par. 4.) In Dorsey’s
view, this therefore does not constitute a grievance. As
Mosley explains, the committee knew Dorsey was attempting
to recruit doctors. The committee felt that the opening of
Greenville should be delayed until the doctors had been
hired. (3:618.) I find that the evidence fails to show that the
committee’s first two items are tainted by bad faith.
(3) Inadequate support staff
By her three-page memo (G.C. Exh. 45) of June 29 to
McCaskill, Odom reported statistical data reflecting that dur-
ing May Delta’s medical records staff was operating pulling
charts requiring work of 43 hours a day, yet able to work
only 32 hours a day with four employees. This produced a
deficit of 11 hours a day resulting in a backlog of work for
Odom’s section. (3:698; 6:1331, 1344–1346.) At page 2 of
her June 29 memo Odom recommended that the opening of
a clinic in Greenville would necessitate the hiring of an addi-
tional person in the medical records department. (G.C. Exh.
45 at 2.) Instead, one person rotated to Greenville, leaving
three employees at Mound Bayou with yet more work.
(3:698.)
Dorsey identified a standards guide for provider to staff ra-
tios and certain ‘‘BCRR’’ reports (R. Exhs. 8, 9, 10, 11) in-
dicating, Dorsey testified (6:1234–1235, 1314–1318), that
Delta was overstaffed. Odom testified that although she had
heard of the BCRR reports she had never seen these docu-
ments and that the committee did not have them. (6:1327,
1334–1340.) I credit Odom who testified with apparent sin-
cerity. I therefore find that the evidence fails to show that
this concern of the committee was tainted by bad faith.
Dorsey testified that Delta had records showing encounters
just at Greenville. (6:1322.) The records not being then at
hand, and it being the last day of the hearing, I approved
Delta’s request for a late-filed exhibit (R. Exh. 16) on the
condition that it be accompanied by the General Counsel’s
stipulation. (6:1322–1326.) Titled ‘‘Monthly Provider Pro-
ductivity Report,’’ and consisting of one page (legal, 15 col-
umns left to right) for each month from January through June
1991, Respondent’s Exhibit 16 is not self-explanatory and
has not been briefed by Delta.
By letter dated February 20, 1992, counsel for the General
Counsel declines to stipulate and objects to Respondent’s Ex-
hibit 16. Responding by letter of February 21, 1992, Delta
suggests that I receive Respondent’s Exhibit 16 if I would
find it helpful. As the General Counsel has not stipulated to
Respondent’s Exhibit 16, and the exhibit, which covers part
of 1991 rather than the relevant months of 1991, as the ex-
hibit is not explained or discussed either in the record or in
the briefs, and as I do not find it helpful, I shall reject Re-
spondent’s Exhibit 16 and place it in the rejected exhibits
file. (I shall forward the correspondence of the parties to the
Board’s case records unit, room 260.)
(4) Managers bypassed
Dorsey questioned item 4 (and item 5) and its followup
paragraph by her ‘‘reduce to writing’’ memo (G.C. Exh. 8)
of September 20. As earlier described, Odom replied later
that day by her memo (G.C. Exh. 33) listing (1) pulling a
nurse from triage and (2) assigning a lab tech to Greenville.
Delta merely cites (Br. at 7–8) general denials (5:1150–
1151) by McCaskill of general item number 4 (on G.C. Exh.
38 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
32, and not Odom’s two specifics of triage and lab tech): ‘‘I
feel it’s incorrect.’’ The General Counsel makes a bare ref-
erence to the topic in the Government’s brief to the lab tech
item. (Br. at 24.)
A triage nurse is one who determines the treatment order
for patients waiting to see a doctor or nurse based on the ur-
gency of their relative medical needs. (3:570; 6:1249–1250.)
Dorsey testified that PHS, apparently at some point before
June 1990, performed a clinical review of Delta and listed
143 deficiencies. One of the 143 was the lack of a triage
program. To correct this, Dorsey, it appears, reassigned a
nurse to perform triage duties. (3:571; 6:1248–1249.)
Acknowledging that assigning a nurse to conduct triage is
a management function, and agreeing that although the triage
program is beneficial to Delta and to patients, Mosley ex-
plains that the committee’s complaint was that Dorsey did
not first consult the nursing director [Marilee L. Lucas] to
assess the impact of the assignment on the staff. The com-
mittee’s concern was not about any ruffled feathers of a su-
pervisor, but about the fact that the nurse now assigned to
triage would have to leave her other duties to conduct triage.
Her absence imposed extra work on the other nurses. In testi-
fying, Mosley was unable to say how much time the triage
nurse was pulled away from her normal duties each day, on
average, to conduct triage. (3:571–578.)
The facts about the triage matter appear to be undisputed,
but not fully developed. The impact on the staff employees,
caused by the absence of the nurse assigned to triage, is not
quantified because Mosley apparently lacked the information.
Still, enough evidence exists to show that the staff felt some
adverse impact, even if that impact was slight.
As Donald Peterson, then the lab manager, explains, at the
June 5 meeting Dorsey held with the division managers and
department heads to advise them that the Greenville clinic
would open, Dorsey said she would assign Peterson’s only
full-time lab technical employee, Deborah Lloyd, to Green-
ville. In a later letter (not in evidence), Dorsey stated that
Lloyd would be at Greenville for 4 days to set up the lab
at Greenville. Peterson’s complaint is that a month after the
opening Lloyd was still there, yet neither Dorsey nor
McCaskill had told him of the extended stay for Lloyd. The
impact, however, seems to have been almost solely on Peter-
son, the lab manager, who had to work many extra hours,
rather than on the part–time workers who assisted him. And
as Mosley concedes, as Lloyd lived in Greenville, Lloyd
simply did not have to commute to Mound Bayou. No ad-
verse impact as to Lloyd is shown. (2:472–4273; 3:539–544,
579; 4:823–824, 843–847.)
Finding, as I do, that there is no showing of bad faith on
this item, it is a close question whether the committee was
concerned about a protectible interest of employees. First, the
item’s phrasing (in Odom’s clarifying letter of September 20,
G.C. Exh. 33) can be interpreted as implying, contrary to
fact, that Lloyd’s assignment was made with no notice at all
to Peterson. Indeed, Mosley appears to have been under that
illusion even at the trial. (3:579–580.)
Second, Mosley’s explanation of the group’s concern is
that Peterson had to work excessive hours—sometimes 12
hours a day—at the lab, frequently alone. Peterson told the
group that such excessive hours would cause him to make
errors. Aside from the stress, as such, on Peterson, lab errors
would ‘‘increase our liability.’’ (2:472–473; 3:537.) Odom
also refers without explanation to this ‘‘liability.’’ (3:697.)
At the October 17 hearing Peterson briefly mentions the pos-
sibility of Delta’s being liable for any of his mistakes (G.C.
Exh. 19 at 51), an apparent reference to possible lawsuits
over negligence. But there is no articulation there or else-
where of how any such liability could have an impact, such
as loss of jobs through uninsured losses on negligence
claims.
Peterson’s two part-time lab techs, perhaps by definition of
their limited hours, seem not to have been impacted by
Lloyd’s transfer. Peterson explains that one could have
worked later, and apparently had done so on some occasions
in the past. The second had a full-time job elsewhere each
day and would not have been available to work extra hours.
Peterson chose to work the extra hours himself rather than
burdening the one part-time tech who possibly could have
worked some extra hours. (4:824–825.)
Odom testified that Peterson could not do as many lab
tests as both he and Lloyd had been doing. That meant less
revenue (at Mound Bayou) and therefore had the potential to
contribute to a future deficit. (3:697.) In his own testimony
Peterson does not expressly assert that he was not able to
perform as many tests as he and Lloyd had performed be-
fore. He spent about 50 percent of his time on managerial
duties. (4:824.) The record does not show whether some or
all of the lab tests Deborah Lloyd began doing at Greenville
were ones she would have done at Mound Bayou had it not
been for her assignment to Greenville.
Based on these limited facts, I find that the lab tech item
was not a protectible concern of the committee because the
only impact was on the lab manager, Donald Peterson, whom
the parties consider to have been a statutory supervisor.
Other than the committee’s concern about an ambiguous ‘‘li-
ability,’’ there is no articulation of how the impact on Peter-
son could have affected, or even been perceived to have af-
fected, staff employees. Eventually, Odom testified, loss of
revenue from fewer lab tests could affect employees by cre-
ating or contributing to a deficit—that is, a potential loss of
funds and jobs. That potential is quite speculative even is
there was a loss of revenue at Mound Bayou from fewer lab
tests. Regardless of whether the evidence is sufficient to es-
tablish that there were fewer lab tests, if the committee per-
ceived that fewer lab tests were being performed at Mound
Bayou because of Lloyd’s extended assignment to Greenville
then that would suffice if fewer lab tests and reduced rev-
enue constituted a legitimate concern of employees. Standing
alone, the remoteness of the potential would not seem to be
a protectible interest.
(5) Departures from personnel policies manual
For item 5 (Personnel Policies and Procedures Manual not
always followed) of the committee’s September 14 memo
(G.C. Exh. 32), Odom’s September 20 clarification (G.C.
Exh. 33) lists two specifics—(1) pay schedule change and (2)
leave form change. The briefs do not address this matter.
Respecting the payday change, the January 1989 personnel
policies manual provided for biweekly paydays on Thurs-
days. (G.C. Exh. 26 at 13.) By her July 13, 1989 memo
(G.C. Exhs. 22, 19 at 123) to her division directors, Dorsey
changed paydays to 4 p.m. on Fridays effective August 4,
1989, in order to avoid the loss of ‘‘thousands of dollars’’
through lost productivity. Previously, paychecks had been
39DELTA HEALTH CENTER
distributed at 11 a.m. on Thursdays. (3:701, Odom.) Accord-
ing to Dorsey’s memo, distribution of paychecks at 11 a.m.
resulted in lost productivity the balance of Thursday and Fri-
day.
Odom describes the impact on the employees (inconven-
ience respecting banking and other business, 3:702, 748–
749), but that is not the key to the point. The committee’s
point is that Dorsey was changing personnel policies at will.
(3:703.) Odom refers to a specific page, page 36, in the pol-
icy manual (G.C. Exh. 26) which describes the procedure to
be followed to make a change. (3:703, 750–754.)
Odom’s point, and that of the committee, apparently is
this: Dorsey made her announced change in July (effective
8–4–89) without following the policy manual provisions.
(3:701–704, 753–754; 4:812.) In this matter, according to an
October 10, 1989 personnel memo (G.C. Exhs. 25, 19 at
124), the board of directors approved the change at the
board’s July and August 1989 regular meetings. (Although
the board approved the switch to Fridays, it apparently left
the hour at 11 a.m. G.C. Exh. 19 at 71, Odom.) By the Octo-
ber 10, 1989 memo, employees were notified of an adden-
dum to the personnel policy and procedures. All this suggests
that Odom and the committee were complaining that
Dorsey’s announced change came first, whereas any change
should only have been proposed and the change procedure
should have been followed thereafter.
The change procedure (G.C. Exh. 26 at 36) is ambiguous.
Any member of Delta’s staff may propose a policy change
which will be submitted to department heads and on up the
chain. No provision expressly requires the executive director
to follow the same procedure. However, it does appear that
approval by the board of directors is required before any pro-
posed change is implemented. Although the payday item was
a 1989 event, it and ‘‘others,’’ Odom testified, indicated a
trend which concerned the group. (4:812.)
‘‘Others’’ would include the leave–form change listed in
Odom’s September 20 response (G.C. Exh. 33) to Dorsey.
Unfortunately, this item is not well articulated in the record.
At the October 17 grievance-presentation hearing, the com-
mittee’s package included a July 25 memo (G.C. Exh. 19 at
120) from Dorsey to her division directors and department
heads announcing various changes in the procedures for ob-
taining vacation and conference leave, with Dorsey now to
approve all leave. Human Resources Manager Marye
Bandy’s July 31 memo transmitted a new leave form to su-
pervisors and division directors in order to implement
Dorsey’s directive. (Id. at 121–122.) Unlike the previous
form (G.C. Exh. 26 at 48), the new one contains a space for
Dorsey’s approval. (G.C. Exh. 19 at 122.) The record is un-
clear whether Dorsey’s memo preceded the proper change
procedure.
Another item not developed in the testimony, but made a
part of the group’s October 17 package, pertains to Delta’s
sick leave policy. Previous policy apparently was that an em-
ployee out sick for one day could charge that day to sick
leave. The new policy (date of change not disclosed in the
record) specifies that any 1-day absence for illness must be
charged to vacation leave. If the illness lasts at least 2 days,
then the employee may have all the absence, including the
first day, charged to sick leave if the employee submits a
note from a licensed physician, dentist, or health care pro-
vider. (G.C. Exh. 19 at 12, 72, 113, 125.) The problem here
is that the General Counsel has not shown that Dorsey had
anything to do with this. The same policy appears in the Jan-
uary 30, 1989 copy of the personnel policies and procedures
manual. (G.C. Exh. 26 at 18.) Accordingly, I attach no
weight to this and other items listed in the group’s October
17 package but not linked to some action by Dorsey.
(6) Funding problems
In the last paragraph of text of its September 14 memo,
before the request to appear before the board of directors, the
committee referred to Delta’s experiencing funding problems.
This information came from Dorsey at the September 5
meeting (briefly referred to earlier in this decision). Dorsey
appeared twice at that meeting. In her first appearance the
discussion of travel reimbursement was addressed. Dorsey
said there were no funds to continue such payments and they
were discontinued to avoid a deficit. (G.C. Exh. 3; 1:143,
187; 2:379–381, 449; 3:676–677; 5:1011.) After this topic
and others were discussed, Dorsey left the meeting (1:142–
143).
After Dorsey left the September 5 meeting for the first
time, McCaskill appointed the medical staff committee.
(2:450; 3:680; 5:1096.) Dorsey returned to the meeting to say
that she had telephoned Paul Bond (at the PHS’ Atlanta of-
fice) and reported to him that the staff was expressing dis-
satisfaction about going to the Greenville clinic. (1:191,
Hill.) As the minuted Hill prepared reflect (G.C. Exh. 3 at
2), for which the testimony (1:191; 2:451; 3:681) is con-
sistent:
Dr. Dorsey returned again to the meeting to say she
had just called Mr. Paul Bond in the Regional Office
and expressed to him the dissatisfaction staff voiced
about going to the satellite clinic. Dr. Dorsey told the
staff Mr. Bond said we should make a special effort to
see that the satellite clinic works because if our encoun-
ters are below the norm, our budget will probably be
cut next year; our encounters are down and the clinic
was opened to increase encounters.
It was stated by Mrs. Odom that if the satellite clinic
remains in existence and our encounters are still down,
it is likely that our budget will still be reduced.
As this item has a factual basis for the committee’s ex-
pression of concern, I find not only good faith, but also that
the topic directly pertains to a protectible interest of the em-
ployees—the economic health of the main center and the ex-
istence of their jobs there.
b. The September 25, 1990 memo
(1) Introduction
Because I find reasonable support in objective facts for a
substantial portion of the committee’s September 25 memo
(G.C. Exh. 34) to the board of directors, copies to Dorsey
and the PHS, I shall not explore every point expressed there.
Stated differently, examination shows a factual basis on some
of the points so that a reasonable employee could form the
perception the committee adopted.
Some of the committee’s language is less than deferential,
and some of the assertions are phrased in rhetorical hyper-
bole or inflammatory terms. Such expressions fail any test
40 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
for a persuasive writing technique. But tests for professional
writing skill are not the measure embodied in the Act. An-
gered and alarmed by what they considered backstabbing by
their superior and unfairness by the governing body of the
organization, the members of the committee lashed out with
stinging criticism. That Dorsey and the board were offended
there is no doubt. Had the committee enjoyed the benefit of
hindsight and wise counsel, perhaps the members would have
waited a day or two, allowed their language to cool, and then
tempered their memo with words of care and terms of per-
suasion. But the law does not require that wisdom be fol-
lowed and eloquence displayed, only that malice or out-
rageous abuse be avoided.
(2) Misleading the committee
In paragraphs 1 and 2 the committee accuses Dorsey of
deliberately misleading the group to think that it would be
placed on the board’s agenda for the September 20 meeting.
Dorsey, as the executive director, plays a substantial role in
preparing the agenda. (5:1115–1116.) The committee erro-
neously inferred from its request to be on the agenda, and
from Dorsey’s ‘‘reduce to writing’’ memo seeking specifics
before the meeting that evening, that it, too, would be on the
agenda. (1:214; 2:425–426, Hill; 2:478, Mosley.)
Hindsight shows that a prudent committee would have
asked Dorsey specifically whether she had placed them on
the agenda, or obtained their placement there. Nevertheless,
there is a substantial factual basis for the committee’s belief
that it would be heard at the September 20 meeting. Given
Dorsey’s earlier expressions of a desire to convert Greenville
into the main site, her threats to close Mound Bayou at least
temporarily (her threat via McCaskill the afternoon of Sep-
tember 19 being directly tied to the committee’s September
14 memo, and her September 20 hallway threat for Mosley’s
hearing clearly related to the committee’s effort to appear be-
fore the board of directors), it was not irrational for the com-
mittee to conclude that Dorsey had implied one thing to the
committee (that it would be heard) but quietly on her own,
or in concert with Estelle Pryor the board’s chair, had delib-
erately left the committee off the agenda.
(3) Gross misrepresentations by Dorsey
Paragraphs 4, 5, and 6 principally address Dorsey’s accu-
sation, at the September 20 board meeting, that the com-
mittee was fomenting a strike by the medical providers.
Crediting witnesses such as Odom (3:714, 723; 5:1048,
1065–1068) and Peterson (4:830, 897), and disbelieving
Dorsey’s denial (6:1276), I have found that Dorsey made the
accusation and that it was false.
Dorsey then used this false accusation as the basis for re-
questing a motion that the board grant her standby authority
to close the Mound Bayou center in the event there was a
strike of the providers. As we have seen, the committee’s
members were alarmed and believed that Dorsey was out to
implement her goal (expressed to Odom, Peterson, and other
managers and department heads on June 5) of causing Green-
ville to replace Mound Bayou as the main health center.
Dorsey’s threats to close, conveyed through McCaskill on
September 19 and expressed for the benefit of Mosley on
September 20, served to reinforce the committee’s alarm.
When the board refused to recognize and hear Odom on Sep-
tember 20, the committee feared that Dorsey would be able
to persuade the board to close the center and operate from
Greenville before the committee would be able to appear be-
fore the board on October 11.
Even a temporary closing, in the committee’s opinion,
would mean the loss of funds and jobs. (2:299–300, 429;
3:725.) Alarmed, the committee members, as Mosley (2:479)
and Peterson (G.C. Exh. 19 at 55–56) describe, were des-
perate. They therefore sent their September 25 letter to the
board, but with copies to the PHS in order, Odom testified
(3:730), to get the attention of someone in authority.
Dorsey’s references at the September 20 board meeting to
the committee members as ‘‘troublesome’’ and ‘‘uncoopera-
tive’’ were simply her own opinion of the concerns these
employees had been expressing. From the group’s viewpoint,
those adjectives were false.
The record supports a finding, which I make, that the com-
mittee’s accusations of gross misrepresentations were based
on facts from which employees could form the impressions
and perceptions the committee formed. I find that there was
no malice.
Paragraph 9 also contains the accusation that Dorsey ‘‘has
been found guilty on numerous occasions of telling the board
and staff one thing and in the absence of each other, has
misrepresented the truth.’’ When Hill was asked about this
on cross examination, she could not recall a single example
of such conduct nor any example the committee discussed.
The General Counsel offered no examples through any of the
other witnesses. However, Hill testified that the committee
did discuss such misrepresentations, but she could not recall
that discussion. (2:401–402.) Although I credit Hill that such
a discussion occurred, her bare testimony, lacking in details,
is only weak evidence supporting a finding of no malice.
(4) Intimidation
Paragraph 7 is the one–sentence description of Dorsey’s
request to close the center as a ‘‘suppressive ploy to intimi-
date those who see and speak out about the wrongful tactics
employed to dominate staff.’’ When asked on cross examina-
tion how she was intimidated at the September meeting of
the board, Hill answered that it was by Dorsey’s calling the
group troublesome and uncooperative (2:391), and Hill’s be-
lief that, apparently, Dorsey was instrumental behind the
scenes in keeping them off the board’s September 20 agenda.
(5:1099–1101.)
As I have noted, Odom testified that Dorsey falsely told
the board that the committee was trying to force the doctors
to go on strike. (4:830; 5:1048, 1066.) In the committee’s
opinion, Dorsey’s statement and request were an effort to si-
lence the committee. (5:1048.) The committee’s expression
of opinion is fair comment.
As for past events, recall that copies of Hill’s June 7
memo (G.C. Exh. 29) to Dorsey, and Dorsey’s ‘‘I am dis-
appointed’’ reply (G.C. Exh. 2), were attached to the Sep-
tember 25 memo as were Odom’s four-page June 12 memo
(G.C. Exh. 30) and Dorsey’s five-page response (G.C. Exh.
31) of June 14. On page 3 of her June 12 memo Odom ad-
dresses Dorsey’s ‘‘inadvertent use of statements/responses
that belittle or demean employees, thereby diminishing em-
ployee questions/responses to questions for fear of ridicule,’’
and Dorsey’s ‘‘underlying or overt threats’’ that a staff per-
son should ‘‘find another job if you can’t go along with the
41DELTA HEALTH CENTER
program’’ if the person questions or disagrees with a deci-
sion of Dorsey.
In her June 14 response Dorsey (at 2) denies any improper
intent, denies (at 4) any threats, and (at 4), in part because
of Odom’s accusation of threats, alerts Odom that ‘‘I am re-
ferring your letter and my reply to the personnel file.’’ At
page 5 Dorsey, in her final paragraph, states, ‘‘People are
free to speak at meetings, and I should not be held respon-
sible if they don’t state their feelings, concerns, or their
anger.’’
Although unable to cite a specific incident (or date),
Mosley asserts that Dorsey intimidates anyone who com-
ments at staff meetings by stating ‘‘I know where the criti-
cism is coming from.’’ (2:474.) Odom states that in meetings
Dorsey belittles anyone who inquires about doing something
differently from Dorsey’s way by declaring, ‘‘Well, we’re
going to do it my way.’’ (3:670.) If asked whether she had
considered some factor, Dorsey may say, ‘‘That’s a dumb
question,’’ or make some similar remark. (4:810.) In meet-
ings ‘‘Dorsey belittles you and makes you look bad.’’
(5:1050.) Odom is unclear whether she is referring to meet-
ings with employees in addition to managers and supervisors.
Although Odom’s testimony is unclear on this, Hill, the
former medical secretary, clearly states that at the monthly
general staff meetings employees would be afraid to say any-
thing because of Dorsey’s habit of giving short answers to
any questions. ‘‘It’s not necessarily what she said, it’s how
she said it,’’ Hill testified. To Hill, this resulted in poor com-
munications. (5:1087–1089.) Dorsey denies knowingly de-
meaning anyone who has asked questions (6:1257) and she
denies retaliating. (6:1279.)
One incident forming a part of the committee’s concern
about intimidation of the staff by Dorsey has a link with the
group’s concern with staff cuts in the nursing department.
The incident involves the discharge of Andrew Atkins, a
young orderly still in probationary status.
Before the September 5 medical staff meeting, memos
were issued concerning staff surpluses resulting from a short-
age of physicians. McCaskill’s memo of September 4 to
Marilee L. Lucas, the director of nursing, instructed Lucas to
inform Atkins that he would be laid off September 7. (G.C.
Exh. 19 at 126.) A memo the following day from Dorsey to
McCaskill covered a reduction in force for at least four posi-
tions, including Atkins, who was to be furloughed. Two
nursing assistants at Greenville were to be laid off if two
could be transferred there from Mound Bayou. If none at
Mound Bayou would transfer, then reduce their hours to cor-
respond with those that providers would be present at Mound
Bayou.
Apparently three nursing aides had only recently been
hired at the Greenville site. (2:450.) At the September 5
medical staff meeting, Lucas asked about the need to reduce
the hours of her aides when Greenville had recently hired
three aides. From there Lucas inquired about the need to lay
off Atkins when there were recent hires at Greenville. At-
kins, who was present, questioned Dorsey on the reason for
his layoff. Dorsey replied that he was a probationary em-
ployee and she did not have to answer his question. Before
the day was over, Dorsey (6:1295; G.C. Exh. 19 at 128) con-
verted Atkins’ layoff to a discharge.
To the committee, Atkins’ probationary status did not mat-
ter, for the manner of his discharge meant that regular em-
ployees could expect the same fate if they questioned the ex-
ecutive director. True, they could appeal (G.C. Exh. 26 at
28–29), unlike a probationary employee, but they neverthe-
less would be on the street trying to obtain reinstatement.
(2:449–450, 462–467; 3:588–594, 677–679.)
The record, I find, has an abundance of credited evidence
to support a finding, which I make, that the committee had
a good-faith belief that Dorsey’s closure request was nothing
more that a pretext to suppress and intimidate employees, as
well as supervisors, who speak out (such as the committee’s
September 14 memo, G.C. Exh. 32) against Dorsey’s wrong-
ful tactics (such as Dorsey’s September 6 statement, alleged
in complaint paragraph 8 as a threat of unspecified reprisals,
that Dorsey was tired of Hill’s critical remarks) employed to
dominate the staff. The ‘‘wrongful tactics’’ include Dorsey’s
September 6 statement, and the conversion of Atkins’ layoff
into a discharge after he questioned Dorsey at the September
5 meeting of the medical staff.
(5) Local politics
Paragraph 8 of the September 25 memo refers, in the
opening sentence, to Dorsey’s (Dorsey is unnamed, but she
is implied) looking on the committee’s valid concerns ‘‘as
political activism to close the Greenville clinic.’’ As dis-
cussed earlier, one of Delta’s main points is that the com-
mittee was motivated in part by its alignment with a local
political faction which opposed Dorsey from the start.
There is some evidence that local politics was involved,
but not necessarily for the reason suggested by Delta. First,
the nursing director, Marilee Lucas, a member of the com-
mittee, is the wife of Mound Bayou’s long-time mayor, Earl
S. Lucas. (2:396–397; 4:929, 940; 5:1009.) They discussed
her role on the committee. He advised her not to rely on Dr.
McCaskill because ‘‘he won’t stand up for nothing.’’ (4:933–
934, 938.) Hill concedes that she discussed with Mayor
Lucas the committee’s concerns, but she denies that the con-
cerns derived from local politics. (2:395.)
By letter (R. Exh. 1) dated August 29, Mayor Lucas wrote
Louis W. Sullivan, secretary of HHS, to express his concern
and disappointment about the Greenville satellite and its
‘‘taking dollars and employment out of a poor community
and placing it in an affluent community such as Greenville,
Miss.’’ Lucas closed by requesting a visit by a representative
of the national office. He expressed his concern ‘‘that we do
not eliminate the Delta Health Center from our community.’’
The mayor’s letter acknowledges, without giving Dorsey’s
name, that Dorsey replaced the mayor’s younger brother,
William Lucas Jr., as Delta’s executive director.
Replying for Sullivan by letter (R. Exh. 2) dated Sep-
tember 13, Sheridan L. Weinstein, assistant surgeon general,
wrote that the PHS at Atlanta authorized the Greenville ex-
pansion on the basis of excess income generated, that ‘‘we’’
understand the mayor’s concerns, and that ‘‘You can be as-
sured that the Public Health Service is committed to assisting
the DHC to meet the needs of the medically underserved in
Mound Bayou and the surrounding communities.’’
A Delta patient, Lonnie Williams, testified that on October
2 Marilee Lucas asked him whether he knew that the health
center was going to close. He said he knew nothing about
it. Concerned, Williams went to Dorsey who assured him it
was not going to close. Williams denies initiating the con-
versation by telling Lucas he had heard that the health center
42 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
was going to close. He concedes that Lucas told him to see
Dorsey. (5:974–980.) Marilee Lucas did not testify.
Earlier Dorsey testified that Williams had told her of the
statement by Lucas, and that Mazio Dennis told Dorsey that
Hill, leader of his Sunday school class, had said the center
was to be closed and the patients transferred to Greenville.
These reports, Dorsey testified, came before her September
30 ‘‘cease and desist’’ letter, and were a factor in her issuing
the letter. (1:114, 161.)
Hill teaches a Sunday school class at her church. At one
of these classes between September 20 and her October 22
discharge, in discussing the class topic, Hill told the class
that Dorsey, at the September 20 board meeting, had asked
the board to close the Mound Bayou health center for 90
days while keeping open the Greenville satellite. Hill did not
mention the context of a strike by providers. At the hearing
Hill could not recall the nature of the Sunday school topic,
and recalled only that she used Dorsey’s proposal as an ex-
ample in relation to the biblical message. Neither at Hill’s
discharge, nor at any time earlier, did Dorsey ever mention
to Hill the matter of Hill’s comment at the Sunday school
class. (2:297–299, 3128–328, 416.) When he testified, Lonnie
Williams was not asked about Hill’s comment at her Sunday
school class.
Hill’s failure at her Sunday school class to describe the
strike-context of Dorsey’s September 20 request is shown as
confusion on Hill’s part as to the thrust of Dorsey’s position,
not malice by Hill to deliberately make a false report at her
Sunday school class. Although Delta points (Br. at 17) to
Hill’s testimony (2:329) that she did not believe the center
would close, Hill was testifying there that although she was
concerned about the effect of low encounters on funding, she
did not believe that the encounters were low enough to bring
about closure. That concern is unrelated to the concern of
Hill and the committee that Dorsey, for personal reasons, in-
tended to convert Mound Bayou to a satellite and Greenville
to the main center. On that point Hill expressed concern
about (1) closure as a result of providers being pulled from
Mound Bayou to work at Greenville, and (2) Dorsey’s Sep-
tember 20 request to the board to close for 90 days. (2:318,
328–329.)
I find that the evidence falls well short of showing that the
committee’s motivation was based on local politics. There
are objective facts to support the committee’s position at
least in substantial part. Bad faith is not demonstrated by the
evidence.
The testimony of Lonnie Williams (although uncon-
tradicted, Williams’ description is not overwhelmingly con-
vincing) shows that Marilee Lucas apparently told Williams
that the center was going to close. That bare statement to
Williams was false. Even if that statement shows malice on
the part of Lucas, that one incident of malice does not over-
come the objective facts the committee had before it. I find
that this falls well short of showing bad faith on the commit-
tee’s part.
(6) No budget
Paragraph 13 asserts that the Greenville satellite was start-
ed without a budget. Disputing this, Dorsey (6:1209–1210)
points to her June 4 five-page letter plus a two-page attach-
ment of income and expenses (G.C. Exhs. 37, 40), to Paul
Bond, PHS’ project officer at Atlanta, setting forth Dorsey’s
estimated 6-month startup income and expenses. Expenses
were estimated at $231,500. To cover these expenses, Delta
had available $211,178 in EPI funds (excess program in-
come), and Dorsey projected savings in patient transportation
of $20,000, plus $2818 income from increased encounters.
Atlanta’s Luther Wayne Cutchens, who oversees finances,
told Bond to give Delta oral approval. (2:233–234; G.C. Exh.
40.) It is important to note, however, Cutchens’ testimony
that there was no approval for additional Federal funds, and
that Delta could not use any of its section 330 funds to open
the Greenville clinic as distinguished from treating persons
from Greenville and Washington county. (2:230–231, 236,
241–242.)
How Dorsey planned to operate the Greenville clinic is un-
clear. Perhaps that would come from an application for Sec-
tion 330 funds specifically providing for Greenville, or per-
haps from anticipating another surplus in the form of EPI.
In any event, Hill (2:404–405) and Odom (5:1052) testified
that in the summer Dorsey, or perhaps Financial Director
Sanders, had said that there was no separate budget for
Greenville. And from Dorsey’s September 5 comments about
having no funds, members of the committee were concerned
that the Greenville clinic was causing Delta to fall back into
a deficit condition. (2:380, Hill; 3:677; 4:790, 815; 5:1011,
Odom.) Hill testified that she feared Dorsey was siphoning
funds from Mound Bayou to support her Greenville project.
(5:1104.)
Regardless of whether the committee’s concerns about the
lack of a separate budget (Section 330 funds) were accurate,
the committee clearly had a factual basis for raising its con-
cerns. Indeed, in the absence of Section 330 funds, and if
there were no repeat of EPI funds, how would Greenville op-
erate? Any increase in fees from encounters at Greenville
would be minor. In short, the committee had an objective
basis for raising questions. Delta has failed to show bad faith
on this topic.
3. The warning and discharge
a. Introduction
Dorsey’s September 30 warning (cease-and-desist) memo
(G.C. Exh. 11) and her October 22 memo (G.C. Exh. 18)
discharging Hill and Mosley (2:492) (the other discharged
members of the committee were supervisors) list essentially
the same reasons for the discipline. Dorsey’s warning memo
refers to the committee’s ‘‘deliberate lies’’ and ‘‘disrespect’’
as a ‘‘campaign of disruption.’’ Dorsey saw evidence of a
possible conspiracy to damage the health program in the
committee’s (1) the committee’s not requesting a meeting
with her, (2) going directly to the board, and (3) asking the
board to hear the committee’s concerns at Mound Bayou
rather than Greenville.
At the trial Dorsey listed (1:90–91) the disruption as (1)
meetings during the work day, (2) the constant flow of
memos, (3) the creation of tension, (4) reporting to PHS in
the form of alleged grievances thereby requiring Dorsey to
respond, (5) copies to the board of directors, and (6) ap-
proaching the medical providers for their support.
For the discharges, Dorsey asserts that the same factors
apply plus her belief that the group’s concerns really invade
the province of management and did not affect them as em-
ployees, plus a bad-faith intent to usurp [not ‘‘use’’ as shown
43DELTA HEALTH CENTER
at 1:154:17] the authority of the board of directors in order
to disrupt a program [Greenville] approved by the PHS.
(1:154.) The group’s challenge of Dorsey and the board, and
especially the manner in which the group addressed its con-
cerns, is what caused their discharge, Dorsey testified.
(1:169–170.) The discharge letter, Dorsey testified, contains
all the reasons for the discharge. (1:172.)
Aside from accusing the committee of lying, Dorsey’s
memos of warning and discharge describe, as both back-
ground and listed reasons, protected conduct. Dorsey’s real
complaint (other than asserted malice) is that she and the
board of directors were offended by the committee’s ‘‘dis-
respectful’’ conduct, that the committee’s concerns do not
constitute ‘‘grievances’’ (under Delta’s policy manual), and
that the committee had bypassed her and the board and in-
volved the PHS. I have found no merit to the malice defense,
and all the other matters listed by Dorsey are protected con-
duct.
b. Analysis and conclusions
The committee’s activities were stipulated to have been
concerted. But activity may be concerted yet unprotected if,
for example, done in an abusive manner. NLRB v. City Dis-
posal System, 465 U.S. 822 (1984); Reef Industries v. NLRB,
952 F.2d 830 (5th Cir. 1991) (mildly sarcastic letter and car-
toon, part of a labor dispute, protected); New River Industries
v. NLRB, 945 F.2d 1290 (4th Cir. 1991) (mocking letter,
done as a lark for the sole purpose of belittling employer’s
gift, unprotected); Caterpillar Tractor Co., 276 NLRB 1323
(1985) (obscene, obnoxious cartoon of supervisor unpro-
tected).
Here many of the group’s concerns ultimately related to a
fear of the loss of funding, jobs, and possibly even the health
center at Mound Bayou as a result of Dorsey’s Greenville
satellite clinic. Dorsey’s expressed desire to convert Green-
ville to the main site, and her threats to close Mound Bayou
either without restriction (McCaskill), for 90 days (Mosley),
or, as her September 20 request for standby authority, for 90
days in the event of a strike by the medical providers, cou-
pled with the board’s refusal to hear the group on September
20 and an atmosphere the group considered unfriendly, so
alarmed the committee that it sent copies of its September
25 memo to the PHS in the unexpressed hope of support by
that Federal agency.
The committee’s activities, I find, related directly to con-
cerns affecting employees. It is immaterial that Hill or
Mosley may have been unaffected personally by some of the
changes brought about by the Greenville operation. They
could have been affected by any loss of jobs and certainly
would have been if the center had to close. In any event,
their personal involvement of assisting other employees more
immediately affected falls within the ‘‘mutual aid or protec-
tion’’ clause of Section 7 of the Act. Eastex v. NLRB, 437
U.S. 556 (1978). Thus, Delta’s first affirmative defense, that
the committee’s activities are unprotected because they in-
vade the province of management, is without merit.
Respecting Delta’s other affirmative defense, that the
group’s allegations against Dorsey were maliciously false, I
have found that defense to have no merit. I further find that
the committee acted sincerely, and not with reckless dis-
regard for the truth.
Delta also argues (Br. at 14) that the committee acted dis-
loyally (and the discipline was therefore proper) by sending
copies of the September 25 memo to the PHS, Delta’s major
funding source. Employees may seek to improve their lot
‘‘through channels outside’’ those available with their em-
ployer. Eastex, 437 U.S. at 565. However, disparaging the
employer to customers, or the funding source, while seeking
support can be unprotected if the communication is suffi-
ciently disloyal, reckless, or maliciously untrue. Brownsville
Garment Co., 298 NLRB 507 (1990) (criticism of manager
in presence of third parties protected notwithstanding man-
ager resented the remarks as personal and unjust).
The committee’s remarks here, while some were stinging
and harsh, nevertheless had some reasonable connection, for
the most part, to objective facts sufficient that a reasonable
employee could form the perceptions, even if erroneous, that
the committee here formed about matters relating to a labor
dispute affecting terms and conditions of employment. Thus,
I find that the remarks and allegations were not so abusive
as to lose the Act’s protection. Brownsville Garment, id.; Si-
erra Publishing Co. v. NLRB, 889 F.2d 210 (9th Cir. 1989),
enfg. 291 NLRB 540 (1988).
Finally, as Dorsey imposed Delta’s discipline on Hill and
Mosley (plus the other members of the committee) solely be-
cause of their protected concerted activities, I need not make
the analysis required under Wright Line, 251 NLRB 1083
(1980). Circle K Corp., 305 NLRB 932 (1991).
CONCLUSIONS OF LAW
1. Delta Health Center, Inc. is a statutory employer within
the meaning of Section 2(2), (6), and (7) of the Act.
2. Delta has failed to carry its burden to persuade that the
Board should not exercise its statutory jurisdiction over
Delta.
3. Delta has committed unfair labor practices within the
meaning of Section 8(a)(1) of the Act affecting commerce
within the meaning of Section 2(6) and (7) of the Act by:
(a) Executive Director Dorsey’s September 6, 1990 threat-
ening medical secretary Priscilla Susette Hill with unspec-
ified reprisals because of protected concerted remarks Hill
made at the medical staff meeting of September 5, 1990.
(b) Issuing the September 30, 1990 ‘‘cease and desist’’
written reprimand to Charging Parties Priscilla Susette Hill
and Charlotte Mosley.
(c) Discharging Charging Parties Priscilla Susette Hill and
Charlotte Mosley on October 22, 1990.
REMEDY
Having found that Respondent Delta has engaged in cer-
tain unfair labor practices, I find that it must be ordered to
cease and desist and to take certain affirmative action de-
signed to effectuate the policies of the Act.
Delta having discriminatorily discharged employees Pris-
cilla Susette Hill and Charlotte Mosley, it must offer them
reinstatement and make them 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 earnings, as prescribed in F. W. Woolworth Co.,
90 NLRB 289 (1950), plus interest as computed in New Ho-
rizons for the Retarded, 283 NLRB 1173 (1987).
44 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
9 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.’’
Because Delta’s Greenville clinic figures prominently in
this case, I shall order Delta to post the notice to employees
there as well as at Mound Bayou, its main site.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended8
ORDER
The Respondent, Delta Health Center, Inc., Mound Bayou,
Mississippi, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging, issuing written reprimands to, or other-
wise discriminating against any employee for engaging in
concerted activities protected by the National Labor Rela-
tions Act.
(b) Threatening employees with unspecified reprisals be-
cause the employees have engaged in protected concerted ac-
tivities.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Priscilla Susette Hill and Charlotte Mosely im-
mediate and full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or any other rights
or privileges previously enjoyed, and make them whole for
any loss of earnings and other benefits suffered as a result
of the discrimination against them, in the manner set forth
in the remedy section of the decision.
(b) Remove from its files the written ‘‘cease and desist’’
reprimand of September 30, 1990, and the October 22, 1990
discharge memo, and any references to those documents, and
notify employees Hill and Mosley in writing that this has
been done and that the reprimand and discharge will not be
used against either of them in any way.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(d) Post at its health center and clinic in, respectively,
Mound Bayou and Greenville, Mississippi, copies of the at-
tached notice marked ‘‘Appendix.’’9 Copies of the notice, on
forms provided by the Regional Director for Region 26, after
being signed by the Respondent’s authorized representative,
shall be posted by the Respondent immediately upon receipt
and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, 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 Respondent 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 vio-
lated 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 representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT discharge you, issue written reprimands to
you, or otherwise discriminate against any of you for engag-
ing in concerted activities protected by the National Labor
Relations Act.
WE WILL NOT threaten you with unspecified reprisals be-
cause you have engaged in protected concerted activities.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL offer Priscilla Susette Hill and Charlotte Mosley
immediate and full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or any other rights
or privileges previously enjoyed, and WE WILL make them
whole for any loss of earnings and other benefits resulting
from their discharge, less any net interim earnings, plus in-
terest.
WE WILL remove from our files the written ‘‘cease and de-
sist’’ reprimand of September 30, 1990 issued to Priscilla
Susette Hill and to Charlotte Mosley, and the October 22,
1990 discharge memo issued to them, and any references in
our files to those disciplinary actions, and WE WILL notify
each of them in writing that this has been done and that nei-
ther the warning nor the discharge will be used against either
of them in any way.
DELTA HEALTH CENTER, INC.