Detroit Industrial Clinic, P. C.

National Labor Relations Board - Board Decisions

Oct 6, 1972

199 N.L.R.B. 516 (N.L.R.B. 1972)

516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Detroit Industrial Clinic, P. C. and International Un-
ion, United Automobile , Aerospace and Agricultural
Implement Workers of America (UAW). Case 7-
CA-9172
October 6, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING AND
PENELLO
On June 12, 1972, Administrative Law Judge' Jo-
sephine H. Klein issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions,
with exhibits attached thereto, and a supporting state-
ment . The General Counsel filed a brief in support of
the Decision and a motion to strike exhibit "A" at-
tached to Respondent's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and briefs
and has decided to affirm 2 the rulings, findings,3 and
conclusions of the Administrative Law Judge and to
adopt her recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Detroit Industrial Clinic,
P. C., Warren, Michigan, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
said recommended Order.
' The title of "Trial Examiner" was changed to "Administrative Law
Judge" effective August 19, 1972.
2 The General Counsel's motion to strike Respondent's exhibit "A," at-
tached to Respondent's exceptions , is hereby granted . The tendered material
was not offered at the hearing and was neither newly discovered nor previ-
ously unavailable.
3 While we agree with the contention that it was not incumbent on Re-
spondent to show the date of receipt of the union demand letter , we need not
decide whether the language used by the Administrative Law Judge imposes
such a burden . Instead, we find that all the circumstances surrounding Post's
discharge amply support the finding that Respondent knew of her union
activity. In addition to the factors relied on by the Administrative Law Judge,
the inference of knowledge is supported by the unusual circumstances at-
tending the meeting of employees called by Alexander immediately after
Post's discharge . Thus, at this meeting , Alexander took the unprecedented
step of discussing the Post discharge and describing her as a "troublemaker,"
which, on this record, could only have referred to her union activities. In
addition , he informed employees that if they were dissatisfied they could
leave , hence, Alexander was offering the same alternative as he subsequently
expressed on November 28 upon discovering that Ann Alexander had signed
an authorization card . We note further that Alexander also claimed to have
had no knowledge of union activity on November 28 despite the clear evi-
dence to the contrary. In addition, at the meeting, Alexander stressed the
benefits enjoyed by employees and indicated that additional benefits would
be forthcoming . The very nature of these statements , against the total circum-
stances, compels the conclusion that this meeting was an attempt , under,
veiled conditions , to hold out the Post discharge as an object lesson and to
further combat known union activity with the type of propaganda often used
by employers to neutralize a threat of unionization . Therefore, this meeting
called suddenly on the heels of the Post discharge and 2 days after she
secured signed authorization cards from all unit employees, as well as Super-
visor Burroughs, itself strongly suggests that Respondent assembled the em-
ployees with and in reaction to knowledge of the union activity in which Post
was the principal employee organizer.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JOSEPHINE H. KLEIN , Trial Examiner : This case was tried
in Detroit, Michigan, on March 20, 1972, on a complaint'
issued against Detroit Industrail Clinic, P. C.,' on January
21, 1972, pursuant to a charge filed on December 17, 1971,1'
by International Union, United Automobile, Aerospace
and Agricultural Implement Workers of America (UAW)
(the Union). The complaint alleges that Respondent,
through A. E. Alexander, its administrator, coercively inter-
rogated employees concerning their union activities and
threatened discharge of employees for union activities or
support, in contravention of Section 8(a)(1) of the Act ,2 and
discharged employee Virginia Post on November 24 for her
union activities , in violation of Section 8(a)(3) and (1).
All parties were afforded full opportunity to be heard,
to present oral and written evidence , and to examine and
cross-examine witnesses . The parties waived oral argument
and since the hearing a brief has been filed on behalf of the
General Counsel.
Upon the entire record, observation of the witnesses,
and consideration of the General Counsel's brief, the Trial
Examiner makes the following:
FINDINGS OF FACT
I PRELIMINARY FINDINGS
A. Respondent, a Michigan professional corporation,
with its principal office and place of business in Warren,
Michigan , operates medical clinics for profit in Detroit
(West Clinic) and Warren (East Clinic), Michigan. East
Clinic is the only facility here involved. During the fiscal
year ended October 31, 1971, a representative period, Re-
spondent , in the course and conduct of its business, had a
gross revenue in excess of $500 ,000 and purchased and
caused ' to be transported and delivered to its East Clinic
'Respondent's name appears here as amended at the hearing.
1 Except where otherwise stated , all dates herein are in 1971.
2 National Labor Relations Act, as amended (61 Stat. 136, 73 Stat. 519, 29
U.S.C. Sec. 151, et seq.).
199 NLRB No. 67
DETROIT INDUSTRIAL CLINIC, P. C. 517
drugs, medical supplies, and other goods and materials val-
ued in excess of $50,000, which were received from other
enterprises in Michigan which had received them directly
from points outside Michigan.
Respondent is now and has been at all times material
herein an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
B. The Union is and has been at all times material
herein a labor organization within the meaning of Section
2(5) of the Act.
II. THE UNFAIR LABOR PRACTICES
A. Background and Chronology
Approximately 20 people work at Respondent's East
Clinic in Warren, Michigan. Of these, about six are clerical
employees: two medical transcriptionists (stenopool), two
receptionists (front desk), a computer operator, and a spe-
cial appointments secretary.3
Virginia Post was hired in March 1970 as a medical
transcriptionist, working in the stenopool . Like most of the
other clerical employees, she was also given instruction in
handling the front desk so she could perform relief service
as a receptionist when necessary. Around November 1970,
because of her excellent performance , A. E. Alexander, ad-
ministrator, promoted Post to the position of appointments
secretary, whose main duty is to schedule appointments
with the clinic's doctors for medical examinations and treat-
ment. Arrangements therefor are generally made by tele-
phone with employers, insurance company representatives,
or patients. Post remained as appointments secretary until
around the middle of August, when, after substituting for a
receptionist who was out sick for a week or two, she re-
turned to the stenopool, with no change in salary.
Sometime early in October, Post, at the suggestion of
a newly hired employee, spoke to the other clerical employ-
ees about the possibility of unionizing. By informal designa-
tion by her coworkers, Post undertook to make contact with
a union. The first union she approached neglected her re-
quest. Accordingly, after speaking with the other employees
again, she got in touch with the present Union. On Novem-
ber 22, on her lunch hour, Post went to the union office and
obtained authorization cards. She then returned to the clinic
where she distributed the cards to the other employees.
Eight people, including Burroughs, then signed cards. Most
of the cards were signed in the laboratory area, where the
administrator's and assistant administrator's offices were
3 The list stated herein is based on the evidence in the present case. On
March 7 , 1972, the Regional Director , in directing an election , after a hear-
mg, found that : "There are six clerical employees employed at the East
Clinic, including two stenographers, one clerk , and one purchasing secre-
tary." Case 7-RC-10908 . In the representation case, Marion Burroughs, head
of stenopool , was held to be a supervisor . The computer operator was held
to be a clerical rather than a technical employee . Other office or secretarial
employees, such as the administrator's secretary , have apparently been ex-
cluded from the bargaining unit, presumably as confidential or managerial
employees.
then located and where all personnel, including doctors,
technicians, and administrative personnel, frequently vis-
ited or spent time . At noontime on November 23 Post re-
turned the signed cards to the union office.
On the afternoon of November 24, the day before
Thanksgiving Day, Post was called into Alexander's office,
where, with Assistant Administrator Joanne Biscorner
present, Alexander discharged Post forthwith, giving her a
check for salary through the end of the next week. Alexan-
der said that Post was being fired, in effect, because of her
poor attitude, as evidenced most recently by a complaint
which Alexander had overheard her making to another em-
ployee that day. (The reason for the discharge is discussed
at length below.)
About 4:30 or 4:45 p.m., after having fired Post, Alex-
ander called a meeting of the clerical employees. Despite
Alexander's vague testimony that employee meetings are
not unusual,4 Burroughs credibly testified that the only such
prior meeting she could recall was in May 1970, shortly after
her employment began. Post could not recall any such em-
ployee meetings.
At the employee meeting, Alexander said that he had
reluctantly discharged Post because she was a troublemaker
and he would not tolerate dissension within the clinic staff.
According to Burroughs, a totally creditable witness, Alex-
ander told the employees that his door was always open to
them if they had problems. He added that if the employees
were not satisfied they "could leave ." According to Bur-
roughs, the clerical employees, including Post, all got along
very well together, the only source of "dissension" at the
clinic being Assistant Administrator Sloan, who apparently
was almost uniformly disliked. As set forth below, Alexan-
der shared the employees' opinion of Sloan and discharged
him very shortly thereafter. As Burroughs recalled, at the
November 24 employee meeting Alexander referred to the
clinic's employee benefits and indicated that he was at-
tempting to provide hospitalization benefits. He also made
some reference to possible wage increases and the existing
wage freeze .5
B. Section 8(a)(1)
Ann Alexander, wife of Ronald L. Alexander, A. E.
Alexander's nephew, is employed by Respondent as a com-
4 Alexander testified:
Q How often do you have meetings of employees?
A. Frequently as is needed.
Q When was the last one, prior to November 24th?
A. A month prior to that I was away from the clinic a good portion
of the time . I attempted to set up a number of meetings as teaching aids
to the employees, and so over the past year or more meetings with the
employees have been on a requested basis by the employee for the most
part.
The complaint does not allege any violations based on the employee
meeting of November 24. The evidence concerning it, however , is relevant
as part of the surrounding circumstances.
518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
puter operator. On November 28, Alexander telephoned the
young Alexanders' home and spoke to Ronald. Alexander,
Sr., asked Ronald about Ann's having signed a petition or
some other paper for the Union. Ronald called to Ann in
the next room to inquire what she had signed . Ronald then
relayed to A. E. Alexander Ann's statement that she had
simply signed a "card" indicating that she was interested
and wanted to learn more about the Union. Alexander then
said, and several times repeated, that if Ann was not happy
working at the clinic Alexander would be happy to help her
find another job. Each time Alexander made such a state-
ment Ronald asked if Alexander was in effect saying that
Ann was being or was about to be fired. Each time Alexan-
der replied in the negative but persisted in volunteering to
help her find employment elsewhere if she was unhappy
working for Respondent. Alexander generally corroborated
Ronald's and Ann's testimony as to the substance of the
telephone conversation but attempted to minimize it as a
"family aside" which he initiated because he was "dis-
mayed" upon learning that the employees were interested in
a union.
Although Alexander was vague as to the date of this
telephone conversation,6 other evidence conclusively places
it as about 9:30 a.m. on Sunday, November 28. Ann and
Ronald had gone to Iowa over the Thanksgiving holiday
and the telephone call was received upon their return. Ann
recalled having returned from Iowa around November 30.
On the Monday after her return, Ann and other employees
were interviewed individually by A. E. Alexander. Bur-
roughs, supervisor of the stenopool, and employee Carol
Koth dated these interviews on Monday and Tuesday, No-
vember 29 and 30. Since it is undisputed that the telephone
conversation occurred on a Sunday evening, there can be no
question that it was on November 28 .1
Burroughs, Koth, and Ann Alexander testified that on
the Monday or Tuesday after Thanksgiving Day (i.e., No-
vember 29 or 30) each employee was called into Alexander's
office. Alexander conceded that he had talked to several of
the employees but denied that he had spoken to all of them
and he said that the interviews had been held at the employ-
ees' requests,8 apparently following his statements in the
general employee meeting of November 24 to the effect that
his "door was always open" to employees who had prob-
lems or complaints. Burroughs particularly impressed the
Trial Examiner as a thoroughly honest, conscientious, and
reliable witness. Although she is a personal friend of Post,
by whom she was initially recommended for her job with
Respondent, Burroughs was clearly an impartial witness
intent on nothing other than to testify factually, to the best
6 The General Counsel apparently infers from Alexander 's testimony that
he placed the conversation on December 5 However , as noted below, that
is not a necessary inference from Alexander's testimony.
7 When Ronald's memory failed at the hearing, the pretrial affidavit he had
given to a Board agent on January 3, 1972, was received in evidence That
affidavit unequivocally times the conversation as sometime after 9 p in on
Sunday , November 28
8 Alexander testified:
Q. Did you on that Monday meet with all of the employees?
A. I did not.
Q. Did you meet with Mrs Alexander on that Monday?
A. Yes, I did.
Q. Did you meet with any other employees?
A Yes I did , a young lady by the name of Jean Adkins
Q. Any others?
of her recollection, which was generally very good. Al-
though Ann Alexander appeared somewhat reluctant to tes-
tify 9 and her recollection was somewhat less sharp than
Burroughs', she obviously testified truthfully, with no at-
tempt to strain or color her testimony. Koth was a most
reluctant witness , attempting to avoid providing testimony
against Respondent.1° However, what testimony she did!
give appears to have been generally honest and reliable.
Ann testified that on Monday, November 29, she was
called into the office, where Alexander asked her if she was
happy at the clinic or if she had any problems. As he had
the night before in speaking to her husband, the elder Alex-
ander volunteered to help Ann find another job if she was
discontented at the clinic.
According to Koth, she was called into the office,
where Alexander said that he thought Koth "didn't like
working at the clinic, and if [she] didn't like working there
it would be better for [her] and for everyone else if [she]
didn't. If [she] would find another job. Because [she] would
be making it harder on everyone else if [she] didn't like [her]
lob." In this interview Alexander also asked Koth "what
type of card [she] had signed or if [ she] has signed one."
Although Koth denied that the word "union" was used,
there can be no doubt that the "card" referred to was her
union authorization. Alexander himself testified that the
occasion for his having asked about Ann's "signing" some-
thing was his "dismay" at learning that the employees were
interested in a union.
Alexander never specifically denied having asked Koth
about her card. Nor did he deny having told Koth and Ann
that he thought they were unhappy working at the clinic and
should probably obtain other employment. Indeed , as here-
tofore shown, Alexander affirmatively testified to having
volunteered his assistance in securing other employment for
Ann. Although the evidence does show that Koth and Ann,
as well as other employees, complained about Mr. Sloan,
who was then assistant administrator, the record as a whole
shows that this fact was not the basis of Alexander's "sug-
gestion" that they seek other employment. On the contrary,
Alexander found the employees' complaints about Sloan
justified and Sloan was discharged." Thus, it is clear that
A Possibly. I don't know I don't remember how many of the
employees requested to see me.
9 Post credibly testified that in the employees ' initial discussions concern-
mg possible unionisation , Alexander had "said she would be afraid to go [to
the Union] because she was related to Mr Alexander. She didn't want him
to think that she was involved in picking up the cards."
10 Alexander had in effect threatened Koth with discharge on November
29 or 30. On February 21, 1972, between the time she gave a statement to
a Board agent and the time of the present hearing , she had written to the
Board requesting return of her union authorization . Although the General
Counsel called Koth as his witness, he was eventually permitted to cross-
examine her as a hostile witness.
"Alexander testified as follows concerning Sloan:
Mr Sloan was separated with thirty days notice dating back to
somewhere in the week immediately following Thanksgiving.
I told him it had been brought to my attention from a number of
employees that he had in fact instituted a number of controls that were
not to my liking and they were not at my direction They were without
my knowledge and I objected to them and my investigation revealed that
he in fact had been exceeding his authority in certain areas as far as the
employees were concerned.
Biscorner testified that she replaced Sloan on December 20
DETROIT INDUSTRIAL CLINIC, P. C. 519
complaints about Sloan were not the occasion for
Alexander's suggestion that the employees leave
Respondent's employ if they were "unhappy." The sugges-
tion could have been related only to the "unhappiness"
reflected in the union activities. Thus, Alexander's sugges-
tion, particularly when accompanied by questions concern-
ing the signing of union authorization cards, could be
reasonably interpreted only as giving the employees the
alternative of dropping the Union or terminating their em-
ployment.12 That message was particularly clear against the
backdrop of the discharge of Post, the union leader.
Alexander's statements were clearly violative of Section
8(a)(1), as were his questions concerning the signing of un-
ion authorization cards.
C. The Discharge of Virginia Post
As previously set forth, Post was summarily discharged
late in the afternoon of November 24, 2 days after she
solicited union authorization cards from all her clerical co-
workers and the day after she delivered the executed cards
to the Union. Respondent maintains that Alexander, who
was solely responsible for the discharge, had no knowledge
of any union activities until after Post's discharge.
The General Counsel's witnesses, including Post,
frankly conceded that they had no direct evidence that Al-
exander knew of the union activities. Upon the advice of the
Union, transmitted by Post, the employees attempted to
keep the matter confidential until the cards were signed and
delivered to the Union. However, the solicitation took place
at the clinic, most of it in the lab area, where Alexander's
office was located at the time and where all personnel fre-
quently visited.
As shown above, Alexander knew of the activity on
Sunday, November 28. He must, therefore, have obtained
the information at least by Friday, the day after Thanksgiv-
ing Day. Alexander could have obtained the information by
observing and/or overhearing Post's conduct. Burroughs
credibly testified that the organizational activities were dis-
cussed quite frequently-possibly two or three times a
week-during October and November, reaching their peak
apparently at the time the cards were signed.
Post suspected, though she conceded she could not
"prove," that employee Margery Griffith was the source of
Alexander's information. Post testified, without contra-
diction, that the employees "excluded Marge Griffith" from
their initial discussions of the possibility of unionization.
But on November 22 Post successfully solicited signed cards
from all the clerical employees, including Griffith. Post's
suspicion that Griffith may have informed Alexander of the
activities takes on considerable plausibility by subsequent
events, particularly Alexander's contention that the precip-
itating cause of Post's discharge was a complaint he had
overheard Post make to Griffith on the morning of Novem-
ber 24. Both Post and Burroughs denied that any such inci-
dent had occurred. Griffith did not testify. Alexander
12 Ronald had reasonably understood Alexander's offer to help Ann find
other employment as an imminent threat of discharge.
testified that he questioned Griffith about the matter but he
made no attempt to obtain Post's version. He testified that
he had not questioned Post because he did not care whether
the complaints she allegedly had made to Griffith were
warranted or not. Absent any explanation, the one-sided
investigation and apparent favoritism shown Griffith are at
least consistent with Griffith's suspected role as an inform-
er.
Alexander maintained that he first learned of any un-
ion activities through receipt of the Union's recognition
demand. He recalled that as having occurred "after
Thanksgiving," around the end of November, and "a few
short days" before he received the representation petition,
which the record shows was filed on December 7. There is
no evidence as to the precise date the demand letter was sent
or received. Since the authorization cards were delivered to
the Union in Detroit around noon on Tuesday, November
23, it is possible that a recognition demand could have been
received at the clinic, in the Detroit metropolitan area, the
next day, at the end of which Post was fired.
Thus, it is possible that both Post's suspicion of Griffith
and Alexander's claim that he first learned of the union
activities through the demand for recognition were essen-
tially valid. The only significant point which cannot fit into
this picture is Alexander's contention that the demand letter
was received after Thanksgiving. There was only 1 working
day (Friday, November 26) between Post's discharge (on
November 24) and the time that Alexander is clearly shown
to have known of the union activities (November 28). With
the date of Alexander's acquiring knowledge manifestly
crucial, one would reasonably expect Respondent to pro-
duce the letter and/or other evidence as to the time of its
receipt. Alexander's vague and uncorroborated testimony is
insufficient to establish that the Union's recognition de-
mand was received on November 26.13
Thus, while there is no direct, affirmative evidence that
Alexander knew of Post's leadership of the union organiza-
tional activity at the time he discharged her, there is no
credited evidence tending to establish the absence of knowl-
edge. Alexander's testimony concerning his state of mind is
not conclusive. Shattuck Denn Mining Corp. v. N.L.R.B., 362
F.2d 466, 470 (C.A. 9). Accordingly, the question of the
Company's knowledge must be determined from all the
surrounding circumstances. A. J. Krajewski Manufacturing
Co., Inc. v. N.L.R.B., 413 F.2d 673, 676 (C.A. 1); Sterling
Aluminum Co. v. N.LR.B., 391 F.2d 713, 722 (C.A. 8).
The timing of the unheralded discharge is itself suffi-
cient to raise a presumption of knowledge (N.L.R.B. v.
Montgomery Ward & Co., Inc., 242 F.2d 497, 502 (C.A. 2),
cert. denied 355 U.S. 829; N.L.R.B. v. Mid State Sportswear,
Inc., 412 F.2d 537, 539 (C.A. 5)), particularly in conjunction
with the small size of the facility (N.L.R.B. v. Pembeck Oil
Corporation, 404 F.2d 105, 110 (C.A. 2), remanded 395 U.S.
828).
13 Indeed, it does not even affirmatively appear that Alexander was at the
clinic on that day, which a great many people took off as part of a long
holiday weekend. Alexander testified that he was away from the clinic a great
deal during November. And his addressing a memorandum to Sloan on
November 24 suggests that he might have intended to be absent on Friday.
520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Alexander's entire course of conduct convinces the
Trial Examiner that he knew of the union activities when he
discharged Post. First, he never undertook to explain the
urgency of Post's discharge, on the eve of a holiday, in the
middle of a week. This is particularly noteworthy in view of
Burroughs' uncontradicted testimony that the workload
was heavy that day and the considerable testimony that
there was such a backlog of stenographic work that two
temporary part-time stenographers were then working at
the clinic. In addition, Ann Alexander was then on leave
and Griffith was scheduled to be off on vacation the follow-
ing week. Their absence required temporary reassignment
of personnel which resulted in reduction of the already
small stenographic pool. In the absence of some egregious
misconduct on Post's part, one would reasonably expect
that she would be retained at least until Griffith had re-
turned from vacation.
As previously stated, at the end of the day, after firing
Post, Alexander held a virtually unprecedented employee
meeting. Although Burroughs testified, without contra-
diction, that at least four employees had been discharged
during her tenure of about 1-1/2 years, Alexander had not
held employee meetings to discuss those discharges. The eve
of a holiday seems a somewhat unusual time for such a
meeting if Post's discharge was, as Alexander maintained,
for a long course of misconduct which presumably would be
well known to the other employees.
Additionally, however, there was introduced into evi-
dence a memorandum which Alexander had purportedly
addressed to Sloan. That memorandum, dated November
24, begins:
In your absence on Wednesday, November 24, 1971, I
found it necessary to discharge an employee at the end
of the day without waiting for you.
Nothing in the memorandum or in Alexander's testimony
explains the urgency of either the discharge or the memo-
randum. One might conjecture that the urgency of the
memo (if it was actually written on November 24 4) arose
out of Alexander's intention not to be present on Friday, the
day after Thanksgiving Day, and thus had to leave written
advice for Sloan, who presumably would be in charge in
Alexander's absence. If that conjecture is right, it would, of
course, demonstrate that Alexander had knowledge of the
union activities on Wednesday, November 24, since he had
it by Sunday, November 28. On the other hand, if Alexan-
der planned on being at the clinic on Friday, it would seem
that the only reason for having a memorandum rushed
through on a holiday eve, apparently after normal working
hours, would be hastily to create a "record." The "self-
serving" and defensive nature of the memorandum clearly
suggests a "record-making" motivation.
The precipitous discharge of an apparently satisfactory
employee, 2 days after she solicited union authorization
14 The memorandum was apparently typed by Joanne Biscorner , who was
at that time executive secretary and replaced Sloan as assistant administrator
as of December 20. Although she was called as witness by Respondent, she
was not examined concerning the memorandum.
cards from all her fellow employees, on the employer's
premises, is clearly sufficient to establish a prima facie case
of discrimination, making it incumbent on Respondent to
rebut that factual presumption. N.L.R.B. v. Standard Con-
tainer Co., 428 F.2d 793, 794 (C.A. 5).
Respondent propounded a variety of reasons for the
discharge, all of them designed to establish that, in
Alexander's words, Post was "a bad employee." In telling
her she was being discharged, Alexander, according to his
testimony, "told her that she was being discharged because
of regardless of the amount of places I tried to find for her
in the clinic to do a suitable job that would keep her in
employment with us that I could no longer go along with
her. I was just at the end of my rope."
Alexander's contention that he had had to transfer her
frequently does not withstand analysis. He conceded that
when she first worked as a medical transcriptionist she was
unusually competent. Because of her superior performance,
she was "promoted" to the appointments desk, with an
increase in compensation. Ann Goldstein, who had been a
temporary supervisor at East Clinic for a few months in the
spring of 1971, testified that Post had been somewhat out-
spoken in her telephone contacts. So far as appears, Post's
major dereliction had been implied criticism of the idiosyn-
crasies of Dr. Midgley, one of the clinic doctors, who fre-
quently refused to see patients who were late for their sched-
uled appointments. Alexander testified that Post "many
times in the past had come to [Alexander] on her own to have
[him] intercede to have the patient examined and do some-
thing about [Dr. Midgley's] problem, as far as she thought
he had a problem" and at those times Alexander "instructed
her that her function was to make appointments, and it was
not her position to question the doctor or to circumvent it."
Whether or not Post's conduct concerning Dr. Midgley, as
described by Goldstein and Alexander, was improper,"
there was no direct testimony at the hearing to substantiate
the statement in Alexander's self-serving memorandum of
November 24 to Sloan that Post "was continuously arguing
with the doctors and arguing on the phone with the insur-
ance companies." Burroughs, a friend of Post, acknowl-
edged that she knew that Alexander was not entirely happy
with Post's telephone manner . But Post herself was dis-
pleased with the job as appointment's secretary and over a
considerable period of time had requested to be relieved
therefrom and eventually was transferred back to the steno-
pool in August. Thus, for about 3 months before her dis-
charge, she had not performed telephone duties.
15 Alexander testified:
Q Do you agree that Dr Midgley was a particularly difficult person
with respect to keeping appomtments9
A Whether I agree or whether I don't has nothing to do with an
individual on the job that she has been hired to do. I might have a
personal opinion, but-
s • s
Q.... Was there any particular difficulty with Dr . Midgley about
late patients?
A Possibly.
DETROIT INDUSTRIAL CLINIC, P. C. 521
A part of the appointments secretary's responsibility is
to prepare weekly reports on the status of doctors' reports.
According to Alexander, some of Post's status reports inac-
curately showed that the doctors' reports were on a substan-
tially current basis whereas he subsequently learned that
they were up to 6 weeks late. On direct examination Alexan-
der testified:
Q. Are you telling this Court that she wrote two
days behind when they are six weeks behind, actually?
A. Definitely. They are a matter of record.
However, at another point he revealed that delinquency in
reports has plagued Respondent for years and he would be
happy if he could get the lag reduced to an average of 30
days. On subsequent questioning Alexander testified that
the allegedly "false" records were available in Respondent's
files, but they were never produced.16 Although Alexander
maintained that Post's motivation in preparing the "false"
reports was to conceal the need for overtime work by ste-
nographers, he eventually conceded that Post's reports were
at most "incorrect," not "falsified."" And he also indicated
that after he discovered the extent of delinquency which
Post had concealed, he was unsuccessful in his attempts to
have the employees perform overtime work.
Whatever the true facts may have been about the re-
ports, Post was not discharged at the time, which was
around July or August. Instead, her longstanding request
for transfer from the appointments desk was granted. The
allegedly "falsified" or "incorrect" reports are not men-
tioned in the November 24 memorandum from Alexander
to Sloan detailing the reasons for Post's discharge.
Alexander testified that Post was transferred from the'
appointments job to the front desk, as a receptionist, pre-
sumably because of her derelictions as appointments secre-
tary. However, both Post and Burroughs credibly testified
that Post served as receptionist only for a short period, not
exceeding 2 weeks, while receptionist Koth was out of the
office on sick leave. Post was then transferred to the steno-
pool. Alexander testified that the transfer from the front
desk was made because Post complained about having to
work at the front desk.18 However, the Trial Examiner cred-
16 Alexander's attitude is reflected in the following colloquy in the course
of cross-examination:
Q Is there any way in which we can determine from company
records exactly when she was the appointment secretary? I believe there
is a dispute m.the record.
A. There is a total dispute here, certainly, and I am certainly not
going to do your job for you
Ma PERmwr, [Respondent 's counsel]- Here , we do have the records
here
THE Wr m We don't have that record.
No records were produced, despite their relevance to Respondent's conten-
tion that Post was discharged for cause.
17 Alexander testified:
Q. (By Mr. Hayes) .. is it your position that she deliberately
falsified that report?
A. I would think the word "falsification" might be a little strong,
but I must say she submitted it incorrectly. An uncorrect report, or
incorrectly.
Is The November 24 memorandum from Alexander to Sloan says: 'I tried
her on the front desk and she objected to this job as it was too much for her
and she did not like it there."
its Post's testimony that she had not complained about the
front desk assignment since it was never considered other
than a temporary assignment during Koth' s illness.
There is no suggestion that Post's work was unsatisfac-
tory after her return to the stenopool in August, 3 months
before her discharge. 19 Indeed, although Alexander testified
that he had been absent from the clinic a great deal in
November, he did not consult Burroughs, supervisor of the
pool, or any other supervisory or managerial personnel be-
fore discharging Post. Significantly, as Post credibly testi-
fied, without contradiction, at the time of her discharge she
was temporarily filling in on the appointments desk while
employee Griffith was replacing Ann Alexander as comput-
er operator and Post was scheduled to continue temporarily
on the appointments desk for the next week, when Griffith
was to be on vacation.
The facts are, therefore, that Post was actually transfer-
red only twice during her tenure : First, she was promoted
from the stenopool to the appointments desk in November
1970, and later, in August 1971, she was transferred back to
the stenopool pursuant to her request and Alexander's belief
that her talents lay in nontelephonic work.
According to Alexander, the basic reason for the dis-
charge was Post's inability to get along with other employ-
ees, culminating in a contretemps with employee Griffith on
the morning of November 24. Alexander testified that in the
lab area about 10 or 10:30 a.m. that day he overheard part
of "an aside between Virginia Post and Marge Griffith and
another employee" in which Post was "giving Marge the
devil, `because I have to do your work:... I had to do part
of your work. I don't know why the people can't do their
own work around here ." Alexander testified that he then
decided he had come "to the end of [his] line with Virginia
Post." Alexander did not identify the "other employee"
allegedly present at the time and Griffith did not testify.
Alexander testified that he asked Griffith what the argu-
ment was all about, but he did not question Post because,
for no explained reason, he "was not interested in whether
or not [Post] had to do somebody else's work." Post denied
that any such conversation or "aside" had taken place. Bur-
roughs testified that she had been in the lab area all that
morning and had not heard any such conversation or dis-
agreement between Post and Griffith. According to Post,
she and Griffith had prepared all necessary charts by 9 a.m.,
when needed. Alexander's testimony was uncorroborated
except for hearsay by Biscomer . The Examiner discredits
Alexander's testimony concerning a dispute between Post
19 Alexander testified:
A. Her work in the steno pool in the past when I promoted her was
excellent.
Q. How was it when you returned her there?
A. Not too good. The work, per se, her performance was passable.
Q. What was the problem?
A. The problem was the continuing dissension we had in that de-
partment. We could not get people to work overtime , and I still could
not get enough out of the office for the amount of people that we had.
Petty bickering between the girls.
There was no evidence that Post refused any requests to work overtime or
induced other employees to do so.
522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Griffith. Further, even if there had been such an inci-
dent, the extent of Alexander's failure to consult Burroughs
or otherwise investigate the matter, or to solve the problem
by means other than Post's discharge, would clearly warrant
the inference that he was looking for a pretext on which to
discharge Post.
Alexander's contention that Post was discharged for
causing "dissension" and "bickering" is unsupported by
any credible evidence. Burroughs and Ann Alexander, as
well as Post herself, credibly testified that Post had always
got along very well with the other employees. Even
Alexander's own testimony suggests that Post was not the
sole or principal cause of whatever dissension, if any, ex-
isted among the employees. For example, he testified that
Koth "knows she [Koth] had been a problem child through-
out." Although Koth, unlike Post, had been warned of pos-
sible discharge, she was not discharged. At another point
Alexander testified that there was "petty dissension .. .
rampant in the clinic"-hardly an indication that Post was
uniquely a troublemaker. Apart from Alexander' s vague
and generalized testimony, the only evidence of "dissen-
sion" or "petty bickering" in the clinic indicates that it
centered about the employees' objection to Assistant Ad-
ministrator Sloan. Alexander testified that Sloan had com-
plained about Post 20 When asked what his response to such
complaints had been, Alexander replied: "Well, unfortu-
nately Virginia Post was just one of many that he had com-
plaints about." As previously noted, this cause of dissension
was removed by the discharge of Sloan . Finally, Alexander
had never spoken to Post about the "dissension," which he
now maintains was longstanding and for which he claims
she was largely responsible.
A final word may be said about Respondent' s wide-
ranging attempts to justify Post's discharge. 21 In cross-ex-
amining the General Counsel' s witnesses , Respondent's
counsel attempted to show that Post had been discharged
from several previous jobs and had falsified her application
for employment with Respondent. When asked if and when
he had warned Post of possible discharge if she did not
improve her performance or attitude, Alexander gratuitous-
ly said: "I think Virginia Post also realizes it was a rehabil-
itative effort with her, even though she falsified an
application." The "falsification" was not mentioned in the
November 24 memorandum from Alexander to Sloan and
was not referred to in the discharge interview.
In any event, the accusation against Post was not sub-
stantiated. The testimony indicated that Post's written em-
ployment application did not state that she had been fired
from her immediately preceding job. However, she credibily
20 Ironically, according to Post's credited testimony , Sloan offered her the
position as his secretary after Koth had refused such offer.
21 Respondent's counsel declined to specify the "cause" for discharge in an
opening statement at the hearing.
testified that she orally revealed this fact when she submit-
ted the written application and was hired by Alexander.
Apparently the written application, which was not offered
in evidence, stated that her prior employment had ended
because of a personality conflict between her and a Mrs.
Green. According to both Post and Burroughs, who had
also worked with Post at the prior job, this personality clash
had caused Post's discharge and Alexander had been fully,
informed of that fact. Respondent did not succeed in estab-
lishing that Post had concealed facts concerning any other
previous jobs.
The Trial Examiner finds that the alleged "falsifica-
tion" of her employment application, filed more than a year
and a half before her discharge, with an intervening promo-
tion because of her excellent performance, played no part,
in the discharge. The repeated reference to this alleged mis-
conduct in itself adds considerable basis for doubting,
Respondent's motivation. Shattuck Denn Mining Corp. v.
N.L.R.B., supra, 362 F.2d at 470.
In conclusion, there is no credible evidence showing
any reason for Post's sudden discharge on November 24'
other than her successful solicitation of union authorization
cards from her fellow employees. The General Counsel's
evidence, though largely circumstantial, overwhelmingly
compels the inference that Post was discharged for her un-
ion activities. Respondent totally failed to refute that infer-
ence.
CONCLUSIONS OF LAW
1. By coercively interrogating employees concerning
their union sympathies and activities, and by threatening
employees with discharge for adhering to the Union, Re-
spondent through A. E. Alexander, its agent, interfered
with, restrained, and coerced employees in the exercise of
their rights under Section 7 of the Act, thereby engaging in
unfair labor practices within the meaning of Section 8(a)(1).
2. By discharging Virginia Post on November 24, 1971,
and failing and refusing to reinstate her thereafter, Respon-
dent has engaged in and is engaging in an unfair labor
practice within the meaning of Section 8(a)(3) and (1) of the
Act.
3. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices, the Trial Examiner will recommend that
Respondent be ordered to cease and desist therefrom and
take affirmative action of the type customarily ordered in
such cases.
Having found that Respondent discriminatorily dis-
DETROIT INDUSTRIAL CLINIC, P. C. 523
charged Virginia Post in violation of Section 8(a)(3) of the
Act, the Trial Examiner will recommend that Respondent
be required,to offer her immediate and full reinstatement,
with backpay, to be computed in the manner established in
F. W. Woolworth Company, 90 NLRB 289, together with
interest at 6 percent per annum in accordance with Isis
Plumbing & Heating Co., 138 NLRB 716.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c) of
the Act, the Trial Examiner hereby issues the following
recommended:'
ORDER
Respondent, Detroit Industrial Clinic, P. C., its officers,
agents, successors , and assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating its employees concerning
their union activities.
(b) Expressly or impliedly threatening employees with
termination of their employment if they adhere to the Inter-
national Union, United Automobile, Aerospace and Agri-
cultural Implement Workers of America (UAW), or any
other labor organization.
(c) Discouraging membership in the said Union, or any
other labor organization, by discharging any employee or
by discriminating in any other manner in regard to hire and
tenure of employment of any term or condition of employ-
ment.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the right
to self-organization, to form or join labor organizations, and
to engage in any other concerted activity for the purpose of
collective bargaining or other mutual aid and protection, or
to refrain from any such activities.
2. Take the following affirmative action, which is nec-
essary to effectuate the policies of the Act:
(a) Offer Virginia Post immediate and complete rein-
statement to her former job or, if that position is no longer
in existence, to a substantially equivalent position, without
prejudice to her seniority or other rights and privileges, and
make her whole for any loss of earnings she may have
suffered by reason of the discrimination against her, in the
manner set forth in the section of this Decision entitled
"The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all payroll
records, social security payment records, timecards, person-
nel records and reports, and all other records necessary to
analyze and compute the amount of backpay due under the
terms of this recommended Order.
(c) Post at its clinics in Warren and Detroit, Michigan,
22 In the event no exceptions are filed as provided by Sec 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations , be adopted by the Board and become its
findings, conclusions, and Order , and all objections thereto shall be deemed
waived for all purposes.
copies of the attached notice marked "Appendix."23 Copies
of said notice, on forms provided by the Regional Director
for Region 7, after being duly signed by Respondent's au-
thorized representative, shall be posted by Respondent im-
mediately upon receipt thereof, and be maintained by it for
60 consecutive days thereafter, in conspicuous places, in-
cludmg all places where notices to employees are custom-
arily posted. Reasonable steps shall be taken by Respondent
to msure that said notices are not altered, defaced, or cov-
ered by any other material.
(d) Notify the Regional Director for Region 7, in writ-
ing, within 20 days from the date of receipt of this Decision,
what steps the Respondent has taken to comply herewith.24
23 In the event that the Board 's 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 be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board "
24 In the event that this recommended Order is adopted by the Board after
exceptions have been filed, this provision shall be modified to read: "Notify
the Regional Director for Region 7, in writing , within 20 days from the date
of this Order, what steps the Respondent has taken to comply herewith.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which all parties had the opportunity to
present their evidence, it has been found that we violated
the Act and we have been ordered to post this notice about
what we are committed to do:
The Act gives employees these rights:
To organize themselves
To form, join, or help unions
To bargain as a group through a representative
of their own choosing
To act together for collective bargaining or oth-
er mutual aid or protection
To refuse to do any or all these things.
We assure all of our employees that:
WE WILL NOT do anything that interferes with these
rights.
WE WILL NOT advise or suggest to employees that
they leave our employ if they are not happy or other-
wise threaten them with termination of their employ-
ment for union activities or sympathies.
WE WILL NOT question our employees concerning
their union activities or sympathies.
WE WILL NOT discharge or otherwise discriminate
against any employees because they engage in activities
on behalf of the International Union, United Automo-
bile, Aerospace and Agricultural Implement Workers
of America (UAW), or any other labor organization.
WE WILL offer Virginia Post immediate and full
reinstatement to her former job (or, if thatjob no long-
524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
er exists , to a substantially equivalent job) without prej-
udice to her seniority or other rights and privileges.
WE WILL make Virginia Post whole for any loss of
earnings she may have suffered by reason of her dis-
charge by us on November 24, 1971, together with
interest.
DETROIT INDUSTRIAL CLINIC, P. C.
(Employer)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's Office,
500 Book Building, 1249 Washington Boulevard, Detroit,
Michigan 48226, Telephone 313-226-3200.
Dated By
(Representative) (Title)