Diagnostic Center Hospital Corp. of Texas

National Labor Relations Board - Board Decisions

Apr 7, 1977

228 N.L.R.B. 1215 (N.L.R.B. 1977)

DIAGNOSTIC CENTER HOSPITAL CORP. 1215
Diagnostic Center Hospital Corp. of Texas and
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America,
Local Union No. 988 and Yolanda Garza de
Birdwell . Cases 23-CA-5436, 23-CA-5464, and
23-CA-5465
April 7, 1977
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
JENKINS AND WALTHER
On April 23, 1976, Administrative Law Judge
Thomas E. Bracken issued the attached Decision in
this consolidated proceeding. Thereafter, Respon-
dent and the General Counsel filed exceptions and
supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority 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 the rulings,'
findings, and conclusions of the Administrative Law
Judge to the extent consistent herewith and to adopt
his recommended Order.
The complaint in this proceeding alleges, inter alia,
that Respondent discharged Yolanda Garza de
Birdwell because she engaged in protected concerted
activity.
Respondent denies the allegations.
The Administrative Law Judge found that, while
Birdwell was discharged for writing a letter to
Respondent's parent corporation,2 there was no
credible evidence that she had acted in concert with
any other employee, or that she had been designated
to act on behalf of her fellow employees. According-
ly, the Administrative Law Judge concluded that
Respondent had not discharged her in violation of
Section 8(a)(1).
Respondent contends, inter alia, that Birdwell was
discharged for disrupting the operation of its busi-
ness and for complaining to another employer
(Diagnostice Clinic).
i Prior to the hearing in this proceeding , an agent of the Equal
Employment Opportunity Commission (EEOC) interviewed Yolanda Garza
de Birdwell The agent made "rough random notes " for the EEOC file
which were apparently not given to Birdwell At no point did Birdwell ever
adopt, ratify, or sign these notes as her own statement We find no merit in
Respondent's exceptions to the ruling of the Administrative Law Judge that
Respondent was not entitled to such notes, and to his denial of
Respondent 's motion to order access to these notes . Such notes do not
constitute a "statement" under Sec 102 118(d ) of the Board's Rules and
Regulations and Statements of Procedures, Series 8 , as amended.
We also find no merit in the exceptions to the Administrative Law
Judge's quashing of Respondent 's subpoena duces tecum The subpena
228 NLRB No. 143
The General Counsel, on the other hand, contends
that Birdwell was engaged in protected concerted
activity on behalf of herself and her fellow employees
when she wrote the letter to Respondent's corporate
officials on September 27, 1974. The letter protested
Respondent's alleged pratices of "racism, sexism,
and favoritism," and its failure to grant the employ-
ees a 10-percent increase in wages.
We agree with the Administrative Law Judge and
find that Respondent's discharge of Yolanda Garza
de Birdwell did not violate Section 8(a)(1) of the Act.
We do so because we find, contrary to the Adminis-
trative Law Judge, that the General Counsel has
failed to establish that Respondent had actual
knowledge, at the time of Birdwell 's discharge, that
she was the author of the letter.
In order to place Birdwell's discharge in its proper
perspective, a brief examination of her work record is
necessary . She was employed as an assistant to
Respondent's personnel director, George Sonder-
gaard, for 2 years prior to her discharge in October
1974. She had a good work record until May 1974.
Beginning at that time, she had several confronta-
tions with Miriam Johnson, the head of the house-
keeping department. The first incident involved a
telephone request for time off by a housekeeping
employee which was taken by Birdwell. The request
was relayed to Johnson. Johnson conveyed her
appreciation to Birdwell for the message but request-
ed that future calls be referred directly to her. The
second confrontation occurred when housekeeping
employee Moreno was hospitalized and members of
his family went to Birdwell rather than to Johnson
for his paycheck. Johnson complained to Sonder-
gaard about Birdwell 's interference . Then in August
1974, while Johnson was distributing paychecks to
housekeeping department employees, Birdwell
"barged into the housekeeping department as the
advocate" of employee Olivia Puente and asserted,
erroneously, that Puente's paycheck had been im-
properly shorted. Puente's timecard and Respon-
dent's log of phone calls received on the day in
question, however, show conclusively that Puente's
paycheck accurately reflected the amount of money
due her. Puente quit her job following this incident.
directed Birdwell to produce "unpurged scrapbook ... newspaper clippings
or other documents or materials . . . pertaining to her life since 1965 " The
Administrative Law Judge quashed the subpena without pre judice to
Respondent 's right "to renew it later if Respondent could show that it is
relevant to this case ." Respondent has made no such showing . As it is clear
that the information sought by the subpena has no bearing on the issues in
this proceeding , we affirm the Administrative Law Judge 's ruling Truck
Drivers, Oil Drivers and Filling Station and Platform Workers Local No 705,
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers ofAmerica (Associated Transport, Inc), 209 NLRB 292 (1974)
2 Hospital Corporation of America.
1216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Johnson subsequently spoke to Sondergaard and to
Robert Holmes, Respondent's administrator, about
Birdwell's conduct and asked them to keep her from
meddling in housekeeping department affairs.
Holmes told Sondergaard to tell Birdwell to confine
her duties to the personnel office. Holmes also
directly conveyed the same message to Birdwell
when the latter spoke to Holmes about problems she
was having with Johnson. The Administrative Law
Judge credited Holmes' testimony that he told
Birdwell that she should stay within the scope of her
authority as a personnel assistant, that she should not
interfere with other departmental problems, and that
he was concerned about her ability to stay within the
chain of command.3
Despite this warning, Birdwell, on October 7, 1974,
called Robert Hall, administrator of the Diagnostic
Clinic (not affiliated with Respondent), and told Hall
that one of his employees rudely interrupted her
during a conversation, and she asked Hall to "correct
the situation." Hall told Holmes of Birdwell's call.
Holmes was angered at Birdwell's conduct in once
again failing to follow the chain of command by not
taking the matter up first with her supervisor. On the
following day, October 8, Birdwell was discharged by
Holmes allegedly for meddling in the affairs of
others.4
The General Counsel, as noted, contends that
Birdwell was discharged not for meddling, but rather
for concertedly protesting working conditions, in-
cluding inadequate wages. On September 27, 1974,
Birdwell had drafted and sent to Respondent's top
corporate officials a letter which protested Respon-
dent's plan to give employees a salary adjustment
based upon rates paid at another hospital rather than
an across-the-board 10-percent increase in wages.
The letter also alleged that "there exists flagrant
practices of racism, sexism, and favoritism."
We disagree with the Administative Law Judge's
finding that Holmes knew that Birdwell was the
author of the letter. The Administrative Law Judge's
conclusion is based upon an inference which we
believe is unsupported by the record. According to
the Administrative Law Judge, Holmes received a
copy of the letter on October 1 or 2 and immediately
suspected that Birdwell was the author. Sondergaard
"softened" some of Holmes' suspicions, however,
when he told Holmes that he did not think that
Birdwell was involved. Several days later, on October
7, Birdwell spoke to Sondergaard about her desire for
3 The Administrative Law Judge noted the "inherent plausibility" of
Holmes' admonition to Birdwell , as this concept is such a basic
fundamental premise of office management "
4 Birdwell's boss, Sondergaard, was also discharged on the same day
There is no allegation that Sondergaard's discharge was in any way
improper
5 See N L R B v Walton Manufacturing Company, 286 F 2d 16, 22 (C A
a 10-percent wage increase. The Administrative Law
Judge concluded that "[a]lthough the record does
not disclose that Sondergaard informed Holmes
about Birdwell's October 7 conversation about her
request for a wage increase , it is a reasonable
inference and I draw the inference." Having first
made this inference, the Administrative Law Judge
then made a second inference that Holmes "put two
and two together, and realized that Birdwell . . . was
the author of the letter ...."
We cannot subscribe to the finding of a violation
here through a process of piling one inference upon
another. It is not at all clear to us that Sondergaard
would go running to Holmes with such information
in view of the fact that Sondergaard himself was
about to be discharged. More importantly, however,
the record shows that other employees were also
verbalizing their desire for a 10-percent wage
increase , and there seems little reason for suspecting
that merely because Birdwell shared this desire she
alone would be singled out as the author of the letter.
There is, at least , a sufficient doubt so that we are
unwilling to attribute an unlawful motive to Bird-
well's discharge.5
In order to sustain an 8(a)(1) discharge finding, it is
necessary to establish that at the time of the
discharge the employer had knowledge of the
concerted nature of the activity for which the
employee was discharged.6 We find no basis in this
record to infer such knowledge and instead conclude
that the timing of Birdwell's discharge on the day
after Respondent's discovery of her unauthorized
contact with another employer is consistent with
Respondent's explanation that the discharge was
prompted by an incurable propensity to meddle in
the affairs of others. Accordingly, we find that
Birdwell's discharge did not violate Section 8(a)(1) of
the Act.
We do disagree, however, with Member Walther's
conclusion that her writing the September 27 letter
did not constitute protected concerted activity.
Birdwell's testimony, corroborated in relevant part
by Robert M. Holmes, Respondent's administrator,
indicates that employees were concerned about
Respondent's intentions to implement a salary
adjustment pursuant to a "salary comparison survey
based on salaries of local hospitals." The employees
preferred a general 10-percent increase such as that
given to the employees at another hospital owned by
the parent corporation. Holmes admitted that Bird-
5, 1961), where the court noted that unlawful motive is not lightly to be
inferred.
6 Walls Manufacturing Company, Inc, 128 NLRB 487 (1960), and 137
NLRB 1317, 1318 (1962); New England Fish Company, 212 NLRB 306, 311
(1974); N.L R B. v. The Office Towel Supply Company, Incorporateit 201
F 2d 838, 840-841 (C.A. 2, 1953). See G. W Murphy Industries, Inc., Portable
Electric Tools Division, 183 NLRB 996, 1000 (1970), and cases cited in fn 23
DIAGNOSTIC CENTER HOSPITAL CORP.
well and other employees had spoken to him about
wages , and that racism, sexism , and favoritism were
common topics of conversation among the employ-
ees. Birdwell further testified that she spoke about
these subjects to employees in the dietary depart-
ment, one employee in the garage department, and to
two employees in the data processing department.?
Thereafter, Birdwell composed a letter, dated
September 27, 1974, and mailed it anonymously to
Respondent's chairman of the board of directors in
Nashville, Tennessee. The letter stated, "[W ]e are
writing this letter in the hope that an unfair situation
may soon be remanded [sic] . . . . We feel it only
just that [Respondent's] employees also receive a
10% salary increase . . . . In addition, there exists
flagrant practices of racism, sexism, and favoritism."
Birdwell did not sign the letter, but rather subscribed
it "Employees Diagnostic Center Hospital."
Birdwell's conduct was concerted and protected
irrespective of whether she was overtly designated by
other employees to act on their behalf or informed
any employee that she was doing so. It is clear from
the circumstances set forth above that Birdwell's
fellow employees shared her concern and interest in
the subject matter of the letter and, consequently,
that Birdwell was acting concertedly on behalf of her
fellow employees. We have recently held in Alleluia
Cushion Co., Inc.,8 that such designation is not
necessary so long as there is evidence that fellow
employees share the acting employee's concern and
interest in common complaints. Member Walther
misreads this case when he states that, as a matter of
statutory accommodation, it represents "a narrow
exception to the basic principle that . . . there must
be evidence in the record that the dischargee's
conduct was concerted in nature." A correct reading
of the case is that activity will be deemed concerted
in nature if it relates to a matter of common concern
and this common concern will be found with respect
to violations of a safety statute which created a
general hazard for employees. The fact that the
individual employee's letter of complaint related to
OSHA violations was relied on principally to
establish that it dealt with matters in which other
employees shared his concern and was therefore
concerted activity. Member Walther's reliance on
Mushroom Transportation Co., infra; Indiana Gear
Works, infra; and Signal Oil and Gas Co., infra, is also
clearly misplaced. Mushroom and Indiana denied
enforcement of Board orders and do not represent
Board law. In any event, they held that activity
7 Respondent called the two employees in the data processing depart-
ment as Its own witnesses Their denials of ever having discussed the
contents of the letter with Birdwell were credited by the Administrative Law
Judge The Administrative Law Judge did not comment on the other
portions of Birdwell's testimony set forth above, which stand undenied on
the record
1217
which involved only communication among employ-
ees with no purpose of advancing their common
interest is not concerted activity . This is in sharp
contrast to the present situation in which Birdwell
communicated directly with Respondent 's top corpo-
rate officials and sought to improve the pay of all
employees and to eliminate discriminatory practices
which adversely affected them . Signal Oil and Gas
held that a nonunion employee 's expression of
sympathy for a prospective strike is protected
concerted activity . It obviously provides no support
for Member Walther's position . The case relied on as
in "accord" with the foregoing citations similarly are
wide of the mark . In Buddies Supermarkets, Inc.,
infra, and Jeannette Corporation, infra, the activity
involved was found to be concerted . In Midland
Frame Div. infra, an apparently "gay" employee was
discharged for his agitation with respect to restric-
tions on his manner of dress . There was no evidence
and no basis for presuming that other employees
were interested in this situation.
In sum , it is clear that Birdwell 's conduct in writing
the September 27 letter was protected concerted
activity . However, since this was not the reason for
her discharge, and since the reason for the discharge
was a protected one under our Act, we shall dismiss
the complaint allegation regarding her discharge.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, and
hereby orders that the Respondent, Diagnostic
Center Hospital Corp. of Texas, Houston, Texas, its
officers , agents, successors, and assigns, shall take the
action set forth in the said recommended Order.
MEMBER WALTHER, concurring in part and dissenting
in part:
I agree with my colleagues that Respondent had no
knowledge that Birdwell was the author of the
September 27 letter and that her discharge was not a
violation of Section 8(a)(1) of the Act. However, I do
not agree with my colleagues' further finding that
Birdwell was nevertheless engaged in protected
concerted activity when she wrote the September 27
letter.
The Administrative Law Judge found, and I agree,
that there is no evidence that Birdwell was designat-
ed by her fellow employees to draft a letter or that
8 221 NLRB 999 (1975); see Hugh H Wilson Corporation, 171 NLRB
1040, 1046 (1968), enfd 414 F.2d 1345 (C.A 3, 1969), Carbet Corporation,
191 NLRB 892 (1971) See G V R, Inc, 201 NLRB 147 (1973)
1 4 18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
she informed any employee that she was doing so. In
addition, there is no evidence that any employee
knew that she was acting on their behalf or
participated in the letter's preparation. Indeed, the
Administrative Law Judge found that Birdwell
"admitted that she drafted and forwarded the letter
without the assistance, and knowledge of any
employee of Respondent " Birdwell further testified
that she "took it up to [her] self to . . . write the
letter but [employees] were not present when she
wrote the letter . . . ." The only assistance she had
in drafting the letter was from her husband who was
not an employee of Respondent. Thus, there is no
basis in the record for finding that Birdwell discussed
the actual contents of the letter with any of her fellow
employees or that she received any authority from
them to speak on their behalf.
While Birdwell did indicate that she spoke to
employees "Lee [and] Phillips . . . [in the data
processing department] . . . a person in the garage
department . . . [and] all the people in the dietary
department [in] formulating the contents of the
letter," the General Counsel did not call any of these
employees to corroborate Birdwell's testimony.
Respondent, however, did call as its own witnesses
employees Lee and Phillips who denied discussing
the contents of the letter with Birdwell. After
evaluating all of the testimony, the Administrative
Law Judge concluded that Birdwell acted alone.
Even assuming arguendo that some employees may
have discussed matters which were subsequently
mentioned in the letter, there is no evidence that their
discussions were directed toward group action. Other
employees may have welcomed such a letter and may
have shared an interest in its subject matter, but this
is an insufficient basis upon which to find that
Birdwell was acting in concert.
In Mushroom Transportation Co.,9 the court noted
that in order to prove concerted activity under
Section 7 of the Act, it is necessary to demonstrate at
least that the activity was for the purpose of inducing
or preparing for group action to correct a grievance
or a complaint. In Mushroom the court found that the
activity involved generalized "griping" by an em-
ployee who was a known "trouble-maker," and that
no question of group action entered into his
conversations with other employees. The court
recognized that preliminary discussions might under
s Mushroom Transportation Company, Inc. v N L. R B, 330 F 2d 683, 685
(CA 3, 1964)
10 Ibid at 685 See also Indiana Gear Works, a Division of the Buehler
Corporation v. N L K . B , 371 F.2d 273, 276 (C.A. 7, 1967) And see Signal Oil
and Gas Company v N L R B, 390 F 2d 338, 343, (C.A 9, 1968) where the
court emphasized that the "relation of speech to group action provides .
the tie to the literal terms of section 7 necessary to bung such speech within
its coverage [footnote omitted I." Accord Midland Frame Division, Midland-
Ross Corporation, 216 NLRB 302, 305 (1975); Jeannette Corporation, 217
some circumstances be concerted activities, but
observed that such an argument "loses much of its
force when it appears from the conversations
themselves that no group action of any kind is
intended, contemplated, or even referred to." 10 Such
are the facts here.
I also disagree with my colleagues' reliance on
Alleluia Cushion Co., Inc., ll in this proceeding. In
Alleluia Cushion, the discharged employee took it
upon himself to write a letter of complaint to the
California OSHA office listing several safety viola-
tions by his employer. The Board found that since
the complaint to OSHA sought to achieve safe
working conditions, a matter of obvious mutual
concern to all employees, verbal communication or
other outward manifestation of mutual interest was
unnecessary. The Board noted that occupational
safety was of vital interest at all levels of government
as evidenced by recent safety and health legislation,
and that the Board must recognize the purposes and
policies of other employment legislation and con-
strue the Act in a manner supportive of the overall
statutory scheme. In view of such legislation, the
Board reasoned that it would be incongruous "to
presume that, absent an outward manifestation of
support, [the discharged employee's] fellow employ-
ees did not agree with his efforts to secure compli-
ance with the [safety laws] for their benefit."
Accordingly, the Board there concluded that "where
an employee speaks up and seeks to enforce statutory
provisions relating to occupational safety designed
for the benefit of all employees, in the absence of any
evidence that fellow employees disavow such repre-
sentation , we will find an implied consent thereto
and deem such activity to be concerted." (221 NLRB
at 1000.)
From the foregoing, it is evident that Alleluia
Cushion was intended to set forth a narrow exception
to the basic principle that in order to find a discharge
unlawful there must be evidence in the record that
the dischargee's conduct was concerted in nature. It
was a decision whose very foundation was the
mutual accommodation of statutory principles. Such
factors, quite clearly, are totally absent in the instant
case . Birdwell was not interested in effectuating
legislative principles, but rather was interested only
in protesting the method by which Respondent
intended to calculate an increase in wages. In
NLRB 653, 657 (1975), Buddies Supermarkets, Inc, 197 NLRB 407, 418
(1972)
My colleagues ' conclusion that these latter cases are "wide of the mark"
focuses on the results reached based on the particular facts therein.
However, my colleagues cannot, as they so conveniently have attempted to
do, ignore the Board 's approval in these cases of the principles set forth in
Mushroom Transportation, Indiana Gear Works, and Signal Oil and Gas
ii 221 NLRB999(1975).
DIAGNOSTIC CENTER HOSPITAL CORP.
addition, the generalized allegation that discrimina-
tion was being practiced in certain areas of Respon-
dent's operation was not in any way tied to equal
employment legislation.
In sum, this case concerns an individual who
harbored certain personal gripes and chose to air
those gripes through written correspondence with
Respondent's officials. The fact that other employees
may have shared Birdwell's concern is irrelevant in
determining whether her conduct was concerted in
nature. Accordingly, for the foregoing reasons, I find
that Birdwell's letter of September 27, 1974, did not
constitute protected concerted activity, and that this
is an additional reason for finding that her discharge
was not unlawful.
DECISION
STATEMENT OF THE CASE
THOMAS E. BRACKEN, Administrative Law Judge: This
case was heard at Houston, Texas, on June 25, 26, 27, and
September 23, 24, 25, 1975.1 The charge in Case 23-CA-
5436 against the Respondent, Diagnostic Center Hospital
Corp. of Texas (hereinafter Respondent,) 2 was filed by the
Union on January 23 (amended January 27); the charge in
Case 23-CA-5464 was filed by the Union on February 14
(amended February 20 and March 14); the charge in Case
23-CA-5465 was filed by Birdwell, an individual, on
February 14; a consolidated complaint was issued on May
7 (amended at the hearing on June 25 and September 24).
The consolidated complaint presents questions as to
whether Respondent violated Section 8(a)(1) and (3) of the
National Labor Relations Act, as amended. In its answer,
duly filed, Respondent conceded certain facts with respect
to its business operations, but denied all allegations that it
had committed any unfair labor practices.
Upon the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by the General Counsel and Respondent, I
make the following:
FINDINGS OF FACT
1. JURISDICTION
Respondent, a Delaware corporation, operates a hospital
in Houston, Texas, providing medical and other hospital
services. During the year preceding the issuance of the
complaint, Respondent purchased goods valued in excess
of $50,000 from firms outside the State of Texas, which
were shipped directly from outside that State to Respon-
dent's facilities in Houston. During the same period of
time, Respondent grossed revenues in excess of $250,000.
Respondent admits for this proceeding, and I find, that it is
an employer engaged in commerce within the meaning of
Section 2(6), (7), and (14) of the Act.
' All dates are in 1975 unless otherwise stated.
2 The name of Respondent appears as amended at the hearing
3 All subsequent dates pertaining to Birdwell are in 1974 unless otherwise
stated
II. THE LABOR ORGANIZATION INVOLVED
1219
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America , Local Union No.
988, herein called the Union , is a labor organization within
the meaning of the Act.
III. THE ISSUES
The primary issues are : (1) Whether or not Respondent
violated Section 8(a)(1) of the Act by the admitted
discharge of Yolanda Garza de Birdwell; (2) whether or
not Birdwell was a confidential and/or managerial employ-
ee; (3) whether or not Birdwell's alleged postdischarge
conduct was of such a nature as,to disqualify her from any
remedy; (4) whether or not Respondent violated Section
8(a)(3) and (1) of the Act by the admitted discharge of
Muriel City; (5) whether or not Respondent by its
supervisors engaged in conduct violative of Section 8(a)(3)
and (1) of the Act by its transfer of Linda Parks, Carolyn
Parks, and Betty Parks; (6) whether or not Respondent, by
its supervisors, engaged in conduct violative of Section
8(a)(1) of the Act by harassment of Linda Parks, Carolyn
Parks, and Betty Parks; (7) whether or not Bobbie Taylor,
Patricia Dean, Jo Ann Shiflett, Irene Carr, and Josephine
Broadus were supervisors or agents of Respondent within
the meaning of Section 2(11) of the Act; and (8) whether or
not through the conduct of Josephine Broadus, Respon-
dent engaged in conduct violative of Section 8(a)(1) of the
Act.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Discharge of Yolando Garza de Birdwell,,-
Findings of Fact and Conclusions of Law With
Respect Thereto
In November, 1972, Yolanda Birdwell was hired as a
personnel assistant by George Sondergaard, personnel
director of Respondent, a hospital having approximately
800 employees. Birdwell spoke Spanish and English
fluently, and could read and write both languages. There
was one other employee in the personnel department,
Sarandos (Sandy) Theocharidas, personnel coordinator.
1. Housekeeping department incidents
On May 7, 1974,3 occurred the first reported conflict
between Birdwell and Miriam Johnson, the head of the
housekeeping department. The personnel department was
directly across the hall from the housekeeping department.
Birdwell went into the housekeeping department office and
told Johnson that Mr. Moreno, an employee in that
department, had just called her on the telephone, stated
that his brother had passed away, and he wanted extra time
off. Johnson told Birdwell that the extra time off for
Moreno was fine, but in the future she would appreciate
Birdwell referring these calls to her.4
Moreno some weeks thereafter was hospitalized. Payday
came, and Birdwell went to the housekeeping office
4 Each employee when hired was provided with a personnel handbook
by Birdwell, containing 30 pages of guidelines, information, and regulations.
(Continued)
1220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(Johnson was not present), asked for and received
Moreno's paycheck for his wife. The following payday,
Birdwell again came to the housekeeping office for
Moreno's check, but this time department head Johnson
was present. Johnson promptly told Birdwell that Moreno
could get his check from her, and to have Mrs. Moreno
contact Johnson. Later that day, Moreno's daughter called
Johnson and told her that her mother had made arrange-
ments with Birdwell about the check, and the daughter was
unhappy over Johnson's request that she be contacted.
Moreno had spoken English with department head John-
son since his employment in 1970. Johnson thereafter
complained to Sondergaard about Birdwell's interference.5
On or about August 16, Birdwell and Johnson had their
most serious confrontation. This concerned the pay of a
housekeeping department employee, Olivia Puente. John-
son testified, without contradiction, that in the latter part
of the summer, on a payday, housekeeping employees were
lined up to get their checks. Puente had already received
her check, when, a few minutes later, she and Birdwell
came marching back into the housekeeping office and
Birdwell said: "Ms. Puente's check has been shorted and I
want to see her records." The department secretary asked
Birdwell if it could not wait until she fmished paying the 10
to 15 other employees, but Birdwell continued to stand
there "more or less" blocking the paycheck line. Johnson
then came out of her office, secured the time records, and
showed Birdwell a timecard of Puente wherein Puente had
signed in at 11:15 a.m. instead of the regular 7:30 a.m.
starting time. Puente stated she did not remember signing
in at 11:15 a.m., and she and Birdwell then left the office.
After the remaining employees were paid, Johnson checked
the department's daily diary in which are logged any
telephone calls from employees. Johnson then saw that on
the day in question, Puente had phoned in at 9:30 a.m.,
reported she had been out of town because of illness, and
Johnson had then asked her to come in, and Puente came
in, signing in at 11:15 a.m. Johnson tried to contact Puente
on the phone, because she was sure that when Puente was
reminded of the telephone call, she would remember what
happened and would feel all right about the smaller check.
Johnson was unable to reach Puente, so she had her
secretary type a note concerning Puente's paycheck, and
took it to Sondergaard, asking that when Puente came in
that she be referred to her for an explanation. Johnson did
not see Puente again, as she quit and filed a claim with the
Texas Employment Commission, asserting on the state
claim form that "I quit my job because my hours were
short on my check." Johnson then went to Sondergaard,
stated that Birdwell had cost her a good employee, and
asked him to keep Birdwell from interfering in her
department's affairs. Johnson also asked Sondergaard to
see to it that when Puente came in for her termination
Under the caption "Attendance" appeared the following
Because of the urgent nature of hospital work , regular attendance by all
employees is very important
If an employee is unable to report for work as assigned, he must
notify his supervisor or department head immediately.
5 The personnel handbook provided as to employee paychecks: "Checks
will ordinarily not be released to anyone other than the employee for whom
they are intended unless written authorization is received "
6 Puente could speak English as Johnson had spoken English with her
check, that she be referred to Johnson, so that she could
talk to her.6
Sometime following the Puente confrontation Birdwell
talked to Sondergaard. Birdwell testified that she told the
personnel director that she was having difficulty in
understanding her position in the personnel office, espe-
cially with relationship to the housekeeping department,
and that she wanted to clarify her position with the Spanish
speaking people.? In the course of the conversation she also
informed Sondergaard of two other "concerns" (1) that a
supervisor had told her she was not going to the hospital
picnics because too many Negroes were going, and (2) that
she felt very uncomfortable when some of the supervisors
from the housekeeping department referred to 20- or 25-
year-old minorities as "boys or girls." Birdwell suggested
that if the housekeeping department had more Mexican-
American supervisors, this would perhaps solve some of
the problems.9
2. Conferences with Holmes
In the meantime, Johnson noted that Puente had not
been referred to her, when she picked up her termination
check at personnel. Johnson then went to see Holmes
while, as she described it, "very angry and unhappy." She
testified that: "I sat down in front of his desk, I told him
that I felt that I had taken all the interference that I could
possibly take in housekeeping, that if I was going to be
responsible for it, I had to be, and that I would appreciate
it if Ms. Birdwell went through the proper people and that
she cease to come in my office." Johnson then described
the problems she had had with Birdwell concerning Puente
and Moreno. Johnson also told Holmes that she was not
getting much cooperation from Sondergaard, that she was
not getting the proper applicants, and that the personnel
department was not functioning as it should.
A day or two after his conversation with Johnson,
Holmes called Sondergaard into his office, and told him of
Johnson's complaints. Holmes then instructed Sonder-
gaard to explain to Birdwell what was the scope of her
authority, "and that she should pay particular attention to
following the chain of command." Holmes stated that
Birdwell could only explain general hospital policies to
employees of any department, but that she could not go
into departmental problems with employees.
While the record does not disclose that Sondergaard
discussed Holmes' admonitions with Birdwell, Birdwell
herself was unsatisfied with the situation. Birdwell testified
that a period of time passed, and seeing no changes, she
requested a meeting with Holmes, receiving it the same
day, which she described as being in the last week of
August. Holmes fixed the time of the meeting, as about 1
week after his conversation with Sondergaard. Birdwell
many tunes. Timecards and records were kept in the individual department,
with no such records being kept in the personnel department.
7 Birdwell estimated that the hospital had between 120 and 160
employees whose primary language was Spanish.
8 Birdwell gave July 4, as the date of the picnic. Administrator Robert M.
Holmes testified that this picnic took place on August 18, and his letter
addressed to all employees (Resp. Exh. 16) sets forth that the picnic was
scheduled for August 18, and I so find.
9 Sondergaard did not testify as to this conversation and I credit
Birdwell's account, as it was uncontradicted.
DIAGNOSTIC CENTER HOSPITAL CORP.
proceeded to tell him , "Mr. Holmes , I want to talk to you
about some problems I am having ." She first told him of
her problems with the housekeeping department , and that
she thought "some of the basic rights of the employees
were being violated ." When asked what she meant by basic
rights , Birdwell stated "even when an employee doesn't
have representation they are entitled to know their salary
changes, vacations or ask questions about salary without
being intimidated ." Birdwell then quoted Holmes as saying
to her "You make Ms. Johnson very insecure. You
intimidate her." 10 Birdwell then said to Holmes , "Well, I
want to know my role, you know what I'm supposed to
do." Birdwell testified that she also told Holmes about the
supervisor that said she was "not going to the picnic
because there were too many Negroes going ." She also
testified that she asked "why we didn 't have any more
minority supervisors ," and that Holmes stated that it was
not easy to do so . Birdwell said she thanked him, shook
hands with him and left after Holmes "mentioned that he
was very happy with my job, that he liked my job, that I
have had a very good performance...."
Holmes admitted that Birdwell had stated that there
should be more Chicano supervisors in the housekeeping
department . However , his version of the meeting centered
on his informing Birdwell that she should stay within the
scope of her authority as a personnel assistant , and not
interfere with departmental problems. Holmes told Bird-
well that he had no complaints about her clerical ability,
but that he was concerned about her ability to stay within
the chain of command.
On cross-examination, Birdwell denied that Holmes
stated that he was concerned about her following a chain of
command . This was one of the few occasions in which
there was a flat contradiction between Birdwell 's testimony
and Respondent's witnesses , as the facts are not in major
dispute . The real problem is the drawing of conclusions
from the lengthy testimony . Holmes answered questions in
a direct and straightforward manner , without equivocation
and I credit him over Birdwell in this instance . Birdwell
was an extremely wordy , evasive witness who padded her
answers with opinion , speculation , and argument. In
addition , I credit Holmes ' testimony that he told Birdwell
to stay within the chain of command because of its
inherent plausibility , as this concept is such a basic
fundamental premise of office management.
3. The anonymous letter
Birdwell testified that since her conferences with Sonder-
gaard and Holmes had not secured the results she wanted,
she drafted a letter, typed it, dated it September 27, and
mailed it to John C. Neff, Chairman of the Board, Hospital
Corporation of America, Nashville, Tennessee , the parent
corporation of Respondent. Birdwell did not sign the letter
with her name , but inserted at the normal place for a
signature , "Employees , Diagnostic Center Hospital." She
testified that "there were about 15 employees that were
very concerned that something will have to be done in
order for all of us to have , to receive a 10 percent [raise]
1221
instead of salary adjustment ," and that the letter "was the
idea of all the employees ." On cross-examination, when
asked who the 15 employees were , she named, "Lee from
the business office" and "Mr. Phillips which is the
supervisor there."
The bulk of the page-and-one-quarter letter dealt with
the complaint that the employees of Bayshore Hospital in
Pasadena , Texas (also owned by Hospital Corporation of
America), had received a 10-percent salary increase,
whereas Respondent's employees had not . The letter also
carried a two-line paragraph , "In addition , there exists
flagrant practices of racism, sexism and favoritism. This
also can be documented ." The letter asserted that the
complaint was being forwarded because "we" were unable
to resolve "it" with Holmes and Sondergaard.
When Respondent put on its case, it subpenaed Clifford
Phillips , supervisor of the data processing department, and
Ms. Gene Lee , an employee of the same department.
Phillips testified that he had never had a conversation with
Birdwell about his wages, or any increase , or employee
policies at the hospital , or about Respondent having racist,
sexist, or a discriminatory policy. After reading Birdwell's
letter of September 27, he further stated that he had never
talked to Birdwell about any of its subject matter at any
time . He candidly stated that he had gone to the personnel
office at times to review the files of some of his employees.
Lee, an employee under Phillips , denied strongly that she
had ever discussed Birdwell's September 27 letter with her,
or that she had ever discussed complaints about her pay
with Birdwell, or had she ever discussed any racist, sexist,
or discriminatory policy of Respondent, nor had she ever
discussed any working conditions with Birdwell . Lee stated
that she had had no real conversation with Birdwell, only
to say hello while passing in the hall. Phillips and Lee were
forthright , straightforward witnesses , and I credit their
testimony over Birdwell's.
Administrator Holmes testified that he received a copy
of the letter from the corporate office in Nashville on
October 1 or 2. He showed this letter to Sondergaard and
to Nursing Director Maxine Dalton, and asked if they had
any idea who wrote it . Holmes specifically asked Sonder-
gaard if he thought Birdwell might have written it, and
Sondergaard replied that he did not think so. Holmes
stated that he only teamed that Birdwell sent the letter,
when she passed out handbills 3 weeks after her discharge,
quoting the letter.
4. Events of October 7
Birdwell testified that the next conversation she had with
a management official of Respondent was on October 7,
when she met with Personnel Director Sondergaard. "It
took place at his office , and Mr. Sandy Theochari-
dis . . . was in that conversation ." When General Counsel
asked what was said in that conversation she replied:
In that conversation was that the big heads, the big
department heads had come from Tennessee and we
wanted to be sure that our department, . . . would be
IU Birdwell was a tall, powerful figure, with a commanding and
imperious manner Johnson was small, and a much older lady.
1222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
represented in the sense of change in salary, and I went
and spoke only of myself, of my salary.
Q. What was said in the conversation?
A. O.K. I wanted to ask him to please review my
job title and my, you know, what I did in cooperation
to Mr. Sandy Theocharidis, and also that we were
asking for the 10 percent increase instead of salary
adjustments.
And he said yes, you have very valid-Mr. Sonder-
gaard said at that time, said you have very valid reasons
to question that. He says there is going to be some
changes. I think you are going to like them. I'll let you
know as soon as I find out what's going to happen.
On the same day, October 7, Birdwell, Personnel
Coordinator Theocharidas, and Ms. Granger, the head of
Respondent's medical records department, were in the
personnel office with Birdwell talking to Granger. An
employee of the Diagnostic Clinic of Houston asked from
out in the hall, how many phones were in that office.
Theochandis answered, "We have 3." Birdwell testified
that she became upset, stated that the man was rude, and
promptly phoned the administrator of the clinic, Robert
Hall. ri
Hall was not in, but returned her call. Birdwell gave her
name, stated she worked in the personnel office in the
hospital, and told Hall she had a complaint about one of
his employees, that the employee had been very rude to her
by interrupting her during a conversation and asked Hall
to "correct the situation."
Hall testified that Birdwell was angry and agitated when
she phoned him, and that she asked him to take action.
Hall called the employee involved, "asked him the
circumstances and asked him to go by and apologize for
being rude if in fact he had been." Hall stated it was not
common for hospital people to communicate directly with
him, but that communications were between Holmes and
himself.
Sondergaard testified that Hall also called him about the
incident, and that he then called Birdwell in about it, and
told her it would have been better if she had waited until he
returned, and handled it through the regular procedures,
that is between the two administrators, Holmes and Hall.
5. The discharge on October 8
The following morning Hall telephoned Holmes and
asked him to meet him in the hospital's cafeteria for coffee.
Holmes testified that he knew it was about a serious matter
because Hall had not called him in over a year to meet and
discuss any subject. Holmes and Hall did meet and Hall
told him of the call from Birdwell, but did not ask Holmes
to take any action.
Holmes testified that he was upset about Birdwell's call
because it had only been in the last month that he had
talked to Birdwell about staying within the scope of her
authority and following the chain of command, and that
now she had gone completely outside the institution to
another institution, and perhaps placed their relationship
ii The Diagnostic Clinic is located in a building adjacent to the
Respondent , and is connected to it only by a common garage The clinic is
owned by 55 medical doctors, who examine patients. Approximately 75
in jeopardy. He then decided to terminate her. When asked
if any other factors influenced his decision, Holmes
replied:
Well, there were a number of complaints that I had
received about the Personnel Department in general. I
was at that time considering that the Personnel
Department as a whole was very weak, was not
functioning properly and was going to terminate Mr.
Sondergaard. Since I was going to terminate Mr.
Sondergaard, I would need to rely on someone in the
Personnel Department and definitely Ms. Birdwell was
not that person because she had very recently done
exactly what I had told her not to. I couldn't keep her
from meddling in other affairs.
That afternoon, Holmes called Sondergaard to his office,
told him that he was unhappy about the complaints he had
been receiving from a number of department heads about
the personnel office such as getting applicants, not getting
ads placed in the paper, and not properly screening
applicants. Holmes also told Sondergaard that he had been
after him for a month to complete a summary of salaries in
the Houston area, and it was still not completed. Holmes
then asked for Sondergaard's resignation, and he complied.
The record does not show that Sondergaard questioned or
challenged Holmes' decision in any way.
At 4 o'clock that afternoon, Holmes called Birdwell to
his office, told her he was going to make some changes in
personnel, told her he had asked for Sondergaard's
resignation and was terminating her. Birdwell wanted to
know why he was discharging her, "and I explained to her
the incident with Mr. Hall." Birdwell became very agitated
and said "she agreed with me that the personnel office was
weak and was not performing like it should but that she felt
that she shouldn't be blamed for Mr. Sondergaard's
negligence in handling his department."
Birdwell testified that when Holmes cited her call to Hall
as the reason for her discharge, she protested to Holmes
that she had handled the situation in a tactful manner, and
that the man had interrupted her when she was talking to
another person, and that he had been very impolite.
Holmes then told her that he wanted her to leave and
Birdwell told him, "I am not leaving, I'm going back to my
office and when you are ready to tell me the real reason I
will leave." Birdwell returned to the personnel office, where
Sondergaard was packing to leave, and she commenced
crying. About 15 minutes later, Holmes went to the
personnel office and seeing Birdwell still there, he told her
he wanted her to leave, or he was calling the police.
Birdwell admittedly replied, "Well, go ahead and call them
because I'm not leaving." Holmes did call the police and
when they arrived about 25 minutes later, he took them to
the personnel office. When Birdwell saw the policemen she
stated that she would leave peacefully, picked up a potted
plant from her desk, and walked out with the policemen
towards the garage lobby.
percent of the patients in Respondent hospital at any one time are referred
by the clinic physicians, resulting in approximately $7 million annual
revenue to Respondent.
DIAGNOSTIC CENTER HOSPITAL CORP.
6. Concluding findings re Birdwell's discharge
It is well established that an employer may terminate an
employee for any reason, good, bad, or indifferent, without
running afoul of the act, provided, the employer is not
motivated by unlawful considerations. The existence of
justifiable grounds for dismissal is no defense if the
motivation for the discharge was in part because of the
employee's participation in protected concerted activities.
With these established principles in mind, and recognizing
that the burden of proof to show the illegality of the
discharge rests with the General Counsel, we now turn to
Birdwell's discharge.
In support of General Counsel's case, we have a
competent employee who worked for Respondent for 23
months, with 21 to 22 of those months free of any real
complaint, suddenly and precipitately, called into the
Administrator's office, and fired. The assigned reason by
Administrator Holmes for Birdwell's discharge, was be-
cause of her phone call to the clinic's administrator, Hall,
on October 7, and secondarily, because of the complaints
he had previously received concerning her interference in
the operation of the housekeeping department.
However, upon examination, these reasons will not stand
scrutiny. Hall did not make any big, formal protest to
Holmes about her call to him. Rather, he called Holmes the
next day, and asked to meet him for coffee in Respondent's
cafeteria. At the meeting, Hall simply recited the call to
Holmes, but did not suggest in any manner that Birdwell
be disciplined, as he testified he did not ask Holmes to take
any action.
Holmes protestations that he believed Birdwell's call had
perhaps placed the relationship of the hospital and clinic in
"jeopardy" is unsupported in fact and in logic. It is
impossible to glean from Hall's testimony any such
allegation or inference. That one phone call from a minor
personnel department employee like Birdwell, protesting
the asserted rudeness of one minor clinic employee, could
be weighty enough to cause a breach of relationship of
several years duration between a clinic and hospital,
located on adjacent plots of ground, connected with each
other by a huge common garage, is beyond belief. There
was no supporting testimony by Holmes or anyone else,
that relations between the institutions were precarious or
even in a minor state of flux, prior to Birdwell's call. To the
contrary, the relationship was obviously functioning
smoothly, as Hall had not called Holmes for over a year to
discuss any matter.
Holmes secondary reason for discharging Birdwell, the
complaints he had concerning her interference in the
operation of the housekeeping department, also, will not
stand scrutiny. Until department head Johnson came to
him in late August or early September about the Puente
paycheck incident, he had not had a "real serious
complaint against her," in the preceding 21 or 22 months.12
There is no doubt that Birdwell and Johnson had a
confrontation about Puente, and Birdwell was in error in
the unprofessional manner in which she barged into the
housekeeping department as the advocate for Puente. The
1223
personnel handbook did state on one page, "If you have
any questions about the way in which your working hours
or pay have been calculated refer them first to your
department head." However, on the next page, under the
caption "Payroll Deductions," appears the summarizing
sentence "Questions about these deductions and others
should be directed to the personnel office." There is an
obvious ambiguity in these instructions, and it is apparent
why Puente would go to the personnel office, about what
could reasonably be considered other deductions from her
paycheck.
As to the Moreno incident, it is obvious that Johnson
herself viewed it as a very low priority item. Although it
occurred around May 7, she did not bother to report it to
Holmes until she went in to see him in late August or early
September, about the Puente confrontation.
Holmes testified that the hospital had 22 department
heads. Yet, he only had complaints about Birdwell from 1
of the 22. I am unable to find that Birdwell's call to the
clinic on October 7, and her interference in the housekeep-
ing department were the real reasons for her discharge, but
find them to be pretextual.
I find that the real cause of Birdwell's discharge was her
writing the letter to the parent corporation with its
complaint about not receiving a 10-percent salary increase,
whereas the employees of another subsidiary hospital in the
same area, had received such an increase.
It is true that Holmes received a copy of the letter on
October I or 2, and that Birdwell was not discharged until
October 8, but it required an incident that occurred on
October 7 to link up the letter with Birdwell in Holmes'
mind. When Holmes first received the letter, he admitted
that he had some suspicions that Birdwell had written it.
He transferred his suspicion into action by asking Sonder-
gaard if he thought Birdwell might have written it.
Undoubtedly Sondergaard softened some of Holmes'
suspicion when the personnel director told Holmes that he
did not think Birdwell was involved. However, the thrust of
the contents of that letter, Birdwell's complaint about not
receiving the 10-percent wage increase, was highlighted on
October 7, when Birdwell had her conversation with
Sondergaard about her desire for a 10-percent wage
increase.
Holmes was a beleaguered man at this time. His
personnel director was 1 month behind in completing a
wage survey that the parent corporation wanted. Top
executives of the parent corporation were in town for a
meeting. Legal counsel had been sent into town by the
parent corporation to investigate the contents of this
anonymous letter, that was critical not only of his
personnel director, but also of himself, the administrator.
Although the record does not disclose that Sondergaard
informed Holmes about Birdwell's October 7 conversation
about her request for a wage increase, it is a reasonable
inference, and I draw the inference. Thus, on October 8,
when Sondergaard reported Birdwell's request for the raise
to the administrator, Holmes put two and two together,
and realized that Birdwell, the hospital personnel assistant,
was the author of the letter that had brought so much
12 When asked what other complaints had been made, Holmes could cite
none , replying, "Oh, people make remarks about Ms. Birdwell from time to
time They make remarks about every employee from time to time "
1224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pressure down on him . It was then he decided to discharge
Birdwell for writing that letter to the parent corporation.
7. Concerted activity
We now turn to the question of whether Birdwell was
participating in concerted activity , or as Respondent
argues in its brief, that Birdwell's conduct "was neither
concerted nor for the purpose of collective bargaining or
other mutual aid or protection."
Section 7 of the Act provides , in pertinent part:
Employees shall have the right to self-organization, ..
and to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or
protection, .. .
The issue is not an easy one, as there is a blending of
roles played by Birdwell while in her employment with
Respondent . On the one hand she was hired to work in the
personnel department as a personnel assistant, and re-
quired to perform the normal duties of that job. On the
other hand , she viewed herself as an advocate , if not a
protector , of the Spanish-named employees of Respondent.
She was fluent in both Spanish and English, and Adminis-
trator Holmes recognized her ability as an employee in the
personnel department , to aid Spanish-speaking employees
as an asset for the hospital . She was also sensitive to the
status of black and female employees as minority employ-
ees, because as she consistently stated she was a minority
employee. Last but not least , she was concerned as an
ordinary employee about her own wages.
The record is clear that in many instances, Birdwell was
speaking as a personnel department employee, reflecting
the duties and problems consonant with that office. When
she conferred with Sondergaard in August after the Puente
incident , she testified:
Well, I was having difficulties understanding my role in
the personnel office , especially with my relationship
with the housekeeping department , and I began by
telling him that I wanted him to clarify my position,
especially with the Spanish speaking people that were
coming to me asking questions such as, vacations, et
cetera, and I was getting a lot of resistance from the
head of the housekeeping department.
During the course of this obviously routine business
conference of the personnel assistant with her boss, the
personnel director , Birdwell also told Sondergaard of a
"problem" that she wanted him to be aware of. Birdwell
had been selling tickets to employees for the Astroworld, as
part of her normal duties , when she asked a supervisor if
she was going to Respondent 's picnic . The employee stated
no, "because there is too many Negroes going." Birdwell
wanted Sondergaard to do something about it , as she was
disturbed that "we were some violation" somewhere.
This request of Birdwell was clearly a normal business
one of a personnel department employee telling her
13 Birdwell used the word Chicano and Mexican-American interchange-
ably
14 Owens-Corning Fiberglass Corporation, 172 NLRB 148 (1968), enfd.
supervisor of a situation that might cause the hospital to be
in violation of some law or other . Birdwell then went on to
suggest that if the hospital had more Chicano 13 supervisors
that perhaps "will solve this problem that I am having with
the housekeeping department ." Birdwell 's problem with the
housekeeping department being Johnson's denial of Bird-
well as a personnel department employee , having any
authority to question or handle matters pertaining to
Spanish-speaking housekeeping department employees.
Birdwell's remark to Sondergaard "that I felt very
uncomfortable" about supervisors referring "to minorities
even if they are 20 years old, 25 , as boys , and girls," was a
personal complaint in her adopted role as an advocate of
minority employees.
About a week later , when she asked for a conference with
Holmes, the record is clear that she went to him to discuss
her duties as a personnel department employee. She
opened the conference by stating , "I want to talk to you
about some problems I'm having," "with the housekeeping
department ...." Her complaints to Holmes were
paralled with her complaints to Sondergaard . Again, she
was speaking to the administrator concerning the normal,
routine clashes of department officials about jurisdiction of
work , and responsibilities therefore , that are part and
parcel of the operation of any large business enterprise, as
was Respondent's 800 employee hospital . There was a deep
personality clash between Birdwell and Johnson, and each
went to Holmes speaking in the role for which they were
paid by the hospital . Johnson sought to defend the
autonomy of the housekeeping department , and Birdwell
sought as a personnel department employee to have some
right to interpose herself into some of the activities of the
housekeeping department such as pay procedure, reporting
and leave procedure, and designation of supervisors.
In addition to Birdwell's late-August -early-September
conferences with Sondergaard and Holmes, the General
Counsel contends that the letter written by Birdwell to the
parent corporation constituted concerted action . It is clear
in this instance, that Birdwell was not acting in her
capacity as an employee of the personnel department. The
important question then, is, in what capacity was she
writing the letter . General Counsel asserts that the author
was a "spearhead" in writing the letter , and was protesting
(1) the fact that Respondent 's employees would receive a
salary adjustment rather than a 10-percent wage increase,
and (2) the practice of racism at Respondent 's hospital. To
be a spearhead there must be the body of the spear
supporting that cutting edge , just as in labor relations, for a
person to act as a spearhead , there must be somebody
backing up the person who is out in front of the protest. It
is well established that the activity of a single employee in
enlisting the support of his or her fellow employees for their
mutual aid or protection in as much concerted activity as is
ordinary group activity . 14 But there is no credible evidence
that Birdwell had enlisted the support of a single employee.
Nor is there any evidence that a single employee was aware
of the fact that she was composing such a letter , or that the
letter was sent to the parent corporation . Birdwell admitted
407 F 2d 1357 (C.A 4, 1969); Ross Valley Savings & Loan Association, 194
NLRB 270 (1971).
DIAGNOSTIC CENTER HOSPITAL CORP.
that she drafted and forwarded the letter without the
assistance, and knowledge of any employee of Respondent.
Her testimony that the letter was the idea of all the
employees was soon whittled down on cross-examination
to "about 15 employees" that were concerned about
receiving a 10-percent raise instead of receiving a salary
adjustment. On further cross-examination she could only
name 2 employees out of the 15, Clifford Phillips and Gene
Lee. Both of these employees testified credibly, that
Birdwell never discussed with them any of the contents of
the September 27 letter. General Counsel did not attempt
to offer any rebuttal to Phillips' or Lee's testimony. With
the exception of one two-line sentence, every paragraph in
the letter referred to the request for a 10-percent wage
increase instead of a wage survey. Undoubtedly, Birdwell
wanted all of the employees of the hospital to receive the
wage increase. But the stating of a request for a wage
increase does not constitute concerted action under the
Act, as it was still the sole, individual action of Birdwell.15
Finally, we have the one instance in which another
employee had knowledge of Birdwell speaking of a pay
raise, or speaking of any subject of protest. This occurred
on October 7, at a conversation which Birdwell testified
took place in Sondergaard's office, and at which Theochar-
idas was also present. Actually, the personnel department
occupied two small rooms, a private office for Sonder-
gaard, and an adjoining room shared by both the personnel
assistant, and the personnel coordinator. This was obvious-
ly a logical place for the two employees of the personnel
department to have a routine conversation with their
department head about pay. There is no doubt that
Birdwell was talking about her personal desire to secure a
10-percent wage increase as she stated "I went and spoke
only of myself, of my salary." In addition, she also had one
other personal matter that she wanted reviewed and that
was her job title, as she testified: "I wanted to ask him to
please review my job title . . . and what I did in
cooperation to Mr. Sandy Theocharidas ..... It is
obvious that Birdwell thought that she performed the same
duties as the personnel coordinator, and that her title
should be changed from personnel assistant to personnel
coordinator, with the resultant increase in her pay.
Sondergaard in fact, stated that she, "had very valid
reasons to question that;" promised that some changes
were going to be made, and "I think you are going to like
them." Birdwell's conversation in the personnel office was
obviously on behalf of herself as a person, as an employee
of the department who thought she was entitled to higher
wages and a higher job title.
Not only is there no evidence that Birdwell was ever
designated by any group of employees, or a single
employee to speak or act on their, or his or her behalf, but
there also is no evidence that she ever informed any group,
or even a single employee that she was acting on their, or
his or her behalf, or that any employee ever knew she was
acting on his or her behalf, in other than personnel
department matters. When Birdwell met with Sondergaard
and Holmes in August and September, she met with them
15 Northeastern Dye Works, Inc, 203 NLRB 1222 (1973).
16 In view of this conclusion it is not necessary that I determine whether
Birdwell was a confidential employee, and , if so, entitled to the protection of
1225
about personnel department conflicts with the housekeep-
ing department, and she spoke in her capacity as an
employee of the personnel department. When she wrote the
anonymous letter to Hospital Corporation of America, on
September 27, she wrote as an individual, independent of
any other employee. When she had the conversation with
Sondergaard in the personnel office on October 7, her
entire concern was on her salary increase, and on her job
title.
In these circumstances, I am therefore unable to find that
Birdwell was engaged in any concerted activity for the
purpose of collective bargaining or other mutual aid or
protection, but was acting alone, and not in concert with
other employees, and that her discharge did not violate
Section 8(a)(1) of the Act. Accordingly, I will recommend
that this portion of the consolidated complaint be dis-
missed.16
B. The Discharge of Muriel City; Findings of Fact
and Conclusions of Law With Respect Thereto
Sergio Ponce, organizer for the Southern Conference of
Teamsters, testified that he was involved in an organiza-
tional campaign at Respondent's hospital, which began in
the middle of November 1974. During the organizational
campaign Muriel City signed a union authorization card
on January 10. On January 16, Ponce sent a telegram to R.
M. Holmes, administrator of Respondent, notifying him of
the union campaign, and informed him that three employ-
ees of Respondent had volunteered to assist the Houston
Teamsters Hospital Division in organizing Respondent's
employees, and named Muriel City as one of these
employees. This telegram was received by Respondent on
January 17, and was posted on the seventh floor bulletin
board of the hospital on or about February 1.
City had been hired on April 26, 1974, as a trayline
employee in the dietary department by Robert H. Cobb,
food service assistant manager. James M. Peacock III was
the food service manager, and Betty Pruitt was the trayline
manager . Respondent admitted that Peacock, Cobb, and
Pruitt were supervisors within the meaning of Section 2(11)
of the Act. Respondent denied that four dietary depart-
ment employees who carried the title of supervisor, Jo Ann
Shiflett, Irene Carr, Patricia Dean, and Bobbie Taylor,
were supervisors within the meaning of the Act.
City testified that on January 17 she was breaking down
food carts in the kitchen, when she overheard a conversa-
tion in which Trayline Manager Pruitt had asked Supervi-
sors Thelma Holmes and Irene Carr to transfer her to the
"hot side" of the trayline. City further testified, "One of the
supervisors asked her why, and she said, `Well, we have
received notice saying that Muriel City, Vera Guidry, and
Miles have joined the Union' and she said: `That is why I
want Muriel City and Vera Guidry transferred to the hot
side so we can keep an eye on them.' " City subsequently
the Act; or whether Birdwell 's postdischarge conduct was of such a nature
as to disqualify her from any remedy.
1226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stated that she liked working on the hot side, "very much."
Respondent denied that City ever worked on the hot side.17
On January 24, City's day off, she and a girl friend went
to the hospital to secure information from another
employee about "some drivers license." While in the
kitchen, Trayline Manager Pruitt approached her, asked if
it was her day off, and upon City admitting that it was,
Pruitt told her that she was not supposed to be on the
premises. Food Service Manager Peacock came out of his
office, and City informed him that she was there to get
some information about a driver's license. Peacock then
told her she was not supposed to be on the premises on her
day off. City then testified as follows: "I asked him why,
you know, I'm not supposed to be on the premises, is it
because of the behalf (sic) of me being on the Union. So he
said `No' He said this is a new hospital rule that you are
not supposed to be on the premises at all on your off
day." 1S City and her girl friend then left the kitchen and
walked out on the loading dock, where her girl friend asked
her what she was going to do about getting the information
about the driver's license . At this time Peacock walked out
with Nina Harrison, the cafeteria manager, and according
to City "he asked me again to leave or he was going to have
me thrown off the premises."
According to Peacock, when he asked City what she was
doing on the premises, she said she was trying to find
direction to the driver's license bureau from one of the
employees. He then asked her on two occasions to leave,
and she finally went out on the loading dock. Upon
returning to the kitchen he saw City still standing on the
loading dock talking to someone. Peacock got Harrington
who was nearby in the storeroom to go with him, went out
on the loading dock, and again asked City to leave. At this
point, City became angry, stamped her foot and said, "Oh,
shit. We might as well go," and left.19
That afternoon, Trayline Manager Pruitt reported to
Peacock that Dons Davis, Respondent's dietitian, had
overheard City use profanity in the vicinity of a patient on
the day before. Peacock then requested Davis to come to
his office for a complete explanation of what she had
heard. Davis testified that she reported to Peacock that she
had been in the hallway going to her office, where she saw
City standing by the dumbwaiter. A female patient in a
robe was standing by the service elevators approximately
10 to 12 feet ahead of City. As Davis passed City, and was
approximately 5 feet beyond her, Davis testified that she
heard City say, "I wish she would get off of my f---
back." As Davis turned to go into her office, which was
next to the dumbwaiter, she saw the patient look back.
Davis testified she reported it to Pruitt , "Because a patient
17 Hot side means a position along the conveyor traylme from which hot
foot such as scrambled eggs, bacon, and ham is placed on a tray by a tray
aide There are hot side positions along both sides of the trayline which runs
on a conveyor
18 Peacock denied that he had told City that it was a new hospital rule
that employees were not supposed to be on the premises on their da y off. On
the contrary, he testified that the rule had existed since 1966, and pointed
out that the rule was carried in the personnel handbook under the caption
loitering City had received a copy of the handbook at the time of her
employment, 9 months previously I credit Peacock's testimony that it was
not a new rule
19 Harrington corroborated Peacock's description of City's vulgar
expression and I credit her testimony
was involved and I didn't think these words should be said
in front of a patient."
On January 27, City's first working day after her off-duty
visit to the hospital, Peacock called her into his office. City
testified that Peacock told her that he had a couple of
complaints about her conduct, "I was using profanity by
the dumbwaiter while the patients was getting on the
elevator." City asked Peacock who told him this, and he
replied that a supervisor had done so, but when City asked
what supervisor, Peacock refused to answer. City then
testified, "And I told him that I didn't make it a habit of
using profanity unless I'm really mad." City denied that
she had used profanity on the job.
According to Peacock, when City came to his office he
discussed with her the obscenity used in front of a patient,
and advised her that this could not be tolerated. He also
reviewed with her the events of January 24 when he asked
her three times to leave, and the vulgar remark she made
when leaving, which he considered insubordinate. He then
discharged her. 20
1. Concluding findings
The issue here, however, is not whether the termination
of City was for a good reason or a bad reason, but whether
it was illegally motivated within the meaning of the Act.
The record is crystal clear that Respondent knew of City's
support for the Union because it had received the Union's
telegram on January 17, containing her name as a union
supporter.21
I also find as a fact that City did say on January 24, "I
wish she would get off of my f--- back." City placed
herself in the hallway near the dumbwaiter on her last day
of work, but denied using any profanity. That City was a
user of profanity was conceded by her when she admitted
that she told Peacock that she did not use profanity,
"unless I am really mad." City was a most unimpressive
witness , and I do not credit her testimony, in part because
of her demeanor,22 in part because of contradictions in her
testimony, and in certain inherent plausabilities in some of
the things she said. It is inconceivable that she was really
on the hospital premises on her off day to get information
from another employee about securing a driver's license, or
that Peacock said, "he was going to have me thrown off the
premises."
Dietitian Davis testified in a professional and credible
manner, stating the facts as she knew them, without any
attempt to gild them for the benefit of her employer, and I
credit her testimony. City admitted that she used the
dumbwaiter for late trays on the last day she worked. Davis
was walking through the hallway, and the only person at
20 Peacock testified that he had fired two other employees for uttering
obscenities in front of a patient or visitor , Addle McDowell in 1972 and
Betty James in 1967.
21 City testified that she passed out about 30 Teamster decals in January,
about 2 or 3 days after she signed her union card, and had 5 cards for which
she toed to secure signatures . The decals were 4 inches x 6 inches carrying
the wording HAPPINESS IS BEING A TEAMSTER. The record does not
reveal that the Respondent had any knowledge of such activity
22 She constantly slouched in the witness chair, repeatedly answered
questions by nodding her head, and spoke in a tone of voice so low that it
was difficult for anyone to hear her answers.
DIAGNOSTIC CENTER HOSPITAL CORP.
the dumbwaiter was City, and Davis was approximately 5
feet past her when she heard the obscene remark. While
Davis frankly admitted that she did not see City make the
statement, the preponderance of the evidence is over-
whelnung that City did utter the obscenity. The only other
person in the area was the patient standing by the service
elevator, approximately 5 to 7 feet in front of Davis, with
her back to both Davis and City. When the obscenity was
uttered the patient looked back, obviously to see who
spoke these words. There was no doubt in Davis' mind
when the incident happened, that the obscene statement
came out of City's mouth as she reported it to Pruitt
forthwith.
A measure of the unreliability of City's testimony is her
account of a conversation she claimed to have overheard in
the kitchen on January 17, that being the day the Union's
telegram containing City's name was received by Respon-
dent. City testified that she overheard Trayline Manager
Pruitt ask Supervisors Holmes and Carr to transfer her to
the "hot side" because City had "joined the Union."
Because of City's insistence that she overheard the
conversation on January 17, I asked City as follows:
Q. Why do you remember that it took place on
January 17?
A. Why?
Q. Yes.
A. Because I had joined the Union on the 10th and
I knew that once they find out or get notice from the
Teamsters Union that I had joined the Union, I knew
they was going to transfer me on the hot side. But I
overheard it, you know, the conversation because I was
breaking down a cart then.
Q. Was a calendar handy that you knew it was the
17th or any physical reason like that?
A. Yes. It was a calendar.
Pruitt , whom I credit, testified that she was not at work
on January 17, because she was ill , and in fact was not at
the hospital from January 10 through the 20th. Minoa
Barnum , secretary to Food Manager Peacock , produced
Respondent 's timesheets for January 17. Barnum main-
tains these records , which contain the printed names of the
dietary department employees and various columns for
employees to enter their in-and-out time . Alongside of
Pruitt 's name was the inked-in letter S , which Barnum had
entered therein , when Pruitt had called in that date and
reported sick . Alongside of Holmes' name was the inked-in
entry D/O, [day-off] which Barnum had also inked in that
date . The record is overwhelming that neither Pruitt or
Holmes worked on January 17, and that City used this date
because it was the day on which Respondent received the
Union's letter of notification.
General Counsel argues in his brief that Respondent did
not investigate the incident which triggered the discharge.
Actually, Respondent did make a reasonably thorough
investigation of the incident . Peacock , the overall manager
of the food service department , did not act on the basis of
23 Olson Bodies, Inc, a subsidiary of Grumman Allied Industries, Inc, 181
NLRB 1063 (1970).
24 Automotive Warehouse Distributors, Inc., 171 NLRB 683 ( 1968).
25 In McDonald's Corporation, and its wholly-owned subsidiary, McDon-
1227
Pruitt's report to him, but had her send the dietitian who
had witnessed the incident to his office, for a complete
review of the facts. It is true that Peacock did not ask City
for her version of the facts, and in the best of industrial
relations worlds he should have. However, he had had
several confrontations with her on her last workday, and
had heard a sample of her vulgar language on the loading
dock.
General Counsel also argues that there was a lack of any
warnings prior to the discharge, and in fact there was none.
However, in the personnel handbook, which City admitted
receiving, under the caption "DISMISSAL FOR CAUSE,"
there is a statement that employees will be terminated for
cause for an infraction of general conduct standards.
Under the caption conduct, it is further stated: "It is
reassuring to patients and visitors to fmd a quiet and
friendly atmosphere throughout the hospital. You can
contribute to their sense of reassurance by maintaining a
considerate, thoughtful, and quiet manner in doing your
work. This is especially true in patient areas, lobbies,
elevators and corridors." The section is then summarized
by one sentence: "In summary remember that while on
duty, your general conduct should always be exemplary
and beyond approach."
It is clear that the use of such language by City in the
hospital corridor in the presence of a patient is an
infraction of general standards of conduct. It is also clear
that City's words were anything but exemplary, and were a
breach of the atmosphere of tranquility owed to hospital
patients by Respondent's employees. St. John's Hospital
and School of Nursing, Inc., 222 NLRB 1150 (1976).
Undoubtedly, the Board and courts have excused profanity
in many cases, as pointed out in N.LR.B. v. Cement
Transport, Inc., 490 F.2d 1024, 1029 (C.A. 6, 1974), enfg.
200 NLRB 841 (1972), in which a truckdriver called the
president of the truck line a son-of-a-bitch. Likewise, the
Board has found that profanity was a common occurence
at a factory,23 and at a warehouse,24 between employees.
But a hospital is not the equivalent of a terminal, factory,
or warehouse, and that a patient in Respondent's hospital
waiting for an elevator was not in the status of an industrial
employee working in a shop.
Consequently, it is concluded that the General Counsel
has failed to prove by a preponderance of the evidence that
Respondent unlawfully discharged City in violation of
Section 8(a)(3) and (1) of the Act, but rather that her
discharge was motivated because of her use of an obscenity
in the presence of a patient. Accordingly, I shall recom-
mend that this allegation of the complaint be dismissed.25
C. The Transfer of Linda Parks, Carolyn Parks,
and Betty Parks; Findings of Fact and Conclusions
of Law With Respect Thereto
1. Background
On January 24, Linda Parks , Carolyn Parks, and Betty
Parks, trayline aide employees of Respondent, signed
aid's of Kahala, 200 NLRB 359 (1972), the Board upheld the discharge of a
known union adherent for using the same obscenity in the presence of a
customer at a quick food restaurant
1228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union authorization cards . Union Organizer Ponce on the
same date sent a second telegram to Respondent , inform-
ing it again of the union organizational campaign, and
named therein, Carolyn Parks, Linda Parks, and Betty
Parks and two others, as employees who would be active
on the Union's behalf.26 The three Ms. Parks had been
hired in the fall of 1974, and were among the approximate-
ly 42 to 44 aides who worked in the dietary department,
with 18 on the morning shift, 16 on the afternoon shift, and
10 who worked on weekends only.
Trayline Manager Betty Pruitt has the overall supervi-
sion of these trayline employees. She in turn answers to
Robert H. Cobb, food service assistant manager and James
M. Peacock III, food service manager. Peacock oversees
130 employees in the dietary department . Respondent
admits in its answer that Peacock, Cobb, and Pruitt were
supervisors within the meaning of the Act.
In addition to Trayline Manager Pruitt, there were two
dietary supervisors on the morning shift, Thelma Holmes
and Bobbie Taylor. The dietary supervisor for the after-
noon shift was Pat Dean and there were two relief
supervisors, Jo Ann Shiflett and Irene Can. Holmes,
Taylor, Dean, Shiflett, and Can each wore a plastic name
tag carrying her own name, and the title, supervisor. It is
Respondent's position that these five employees were not
supervisors under the Act, but were working supervisors.
2. The duties of trayline aides
The morning trayline activities commenced at 5 a.m.,
when two dietary supervisors signed in , turned on ovens
and plugged in food carts , made coffee, and checked
equipment . At 5:30 a.m. Pruitt and the day shift trayline
aides commenced working . Each aide was assigned to a
regular station on the trayline, as listed on a monthly
schedule sheet prepared by Pruitt, and posted on the
bulletin board . Also set forth on the schedule was the
employee 's scheduled workdays and day offs.
At each station along the trayline , there was a tally sheet
setting forth the food items that would be required to
complete the patients' breakfast . The tray aide would study
the tally sheet , then go and obtain the food items that she
would be placing on the trays at her station ; the dietary
supervisors would assist the aides in stocking their stations.
The procedure to make ready the trayline lasted until
approximately 6:15 a.m ., at which time the trayline aides
took 30 minutes for breakfast in the hospital cafeteria.
They then returned to the kitchen , and at 7 a .m., the 12
employees who had stations on the traylme took their
position . A line starter placed two trays on the conveyor,
one for cold food and one for hot food. The two trays then
moved down the conveyor belt, and trayline aids placed
cold foods , such as juice and milk on the cold food tray. On
the second half of the line, various hot foods such as
scrambled eggs, hot cereal , and toast were placed on the
hot food tray.
The dietary employees referred to those employees who
placed cold food on the trays as working on the "cold
26 Respondent stipulated at the hearing that it received the telegram on
January 25
27 The facts set forth above about the trayline operation are chiefly from
Pruitt's testimony and are essentially uncontradicted by any other witness,
side," and those employees who placed hot food on the
trays as working on the "hot side." This did not mean that
all employees who placed cold food on the trays worked on
one side of the conveyor line, and that all employees who
placed hot food on trays worked on the other side. There
were cold side positions on both sides of the conveyor line,
just as there were hot side positions on both sides of the
line. When the trays reached the end of the line, a dietary
supervisor double checked the contents of the tray against
the menu to make sure everything on the menu was on the
tray. The other morning shift supervisor backed up the
trayline, by securing any missing items and handling calls
from the nursing floors.
At 7:30 a.m., the two supervisors leave the kitchen with
four traylines aides , and go to the nursing floors and start
serving the patients from the food carts, after combining
the hot food and cold food on one tray. As soon as the line
is completed, the remainder of the cold side employees go
to the nursing floors to help distribute the trays. The hot
side employees remain in the kitchen and prepare "late
trays," for those patients who were unable to eat at the
regular mealtime. There are no supervisors present when
the hot side employees prepare the late trays.
After the trays are all served, the cold side aides go back
to the patients' rooms, pick up the dirty trays, and place
them on the food cart. Porters bring the carts to the
kitchen. Back in the kitchen, the cold side aides perform
"extra jobs." Extra jobs consist of all work not connected
with putting the food on the trays, such as racking glasses
or cups, picking up late trays, and cleaning food carts.
These extra jobs were set forth on a daily schedule
prepared by a dietary supervisor. The supervisor made her
selection from a monthly schedule prepared by Pruitt, and
were the only job assignments for which she had any
choice. Some of the extra jobs, such as "Break Down
Carts," and "Clean Carts" were messier than others, and
the supervisor's policy in filling out the daily schedule was
to rotate these extra jobs among the nonpermanently
assigned employees, so that no employee would have the
same assignment 2 straight days.27
3. The transfer of the three Ms. Parks
Several days after Linda, Carolyn, and Betty Parks
signed union authorization cards, they saw the Union's
telegram of January 24 posted on the bulletin board of the
hospital on the seventh floor.28 A few days thereafter they
were transferred from their stations on the cold side of the
trayline to working at stations on the hot side, where their
duties consisted of putting hot food onto the tray and
fixing late trays. General Counsel summed up the Parkses'
discontent with this change as follow:
According to the Parkses, working on the hot side was
less desirable than working on the cold side because they
had to stay in the kitchen all of their working time where it
is extremely hot. Additionally, an employee on the hot side
must steadily fix trays in the kitchen while the other
employees deliver and pickup trays.
including the Parkses . Pruitt particularly impressed me as a knowledgeable,
honest and straightforward witness
28 Respondent admitted in its answer that it posted the telegram on or
about January 31
DIAGNOSTIC CENTER HOSPITAL CORP. 1229
Pruitt testified that as a result of an inspection of the
hospital in January, by a Joint Commission 29 Peacock
informed her he was creating two new positions in the
kitchen, "Tray Aide Instructors." Pruitt selected the three
outstanding trayline employees, all of whom had worked
on the hot side to evaluate for the two new positions. Then,
to fill these three temporary vacancies on the hot side,
Pruitt recommended Linda, Betty, and Carolyn Parks
because she thought "they were capable and qualified for
doing so." There was no increase in pay for working a hot
side position, although Pruitt stated that it was a more
responsible one, because they worked without supervision
during part of the day, and were usually considered first for
promotions.
Sometime later in February, after Peacock made his
permanent selection of the two new tray aide instructors,
Pruitt testified that she offered the two available hot side
positions to Linda Parks and Carolyn Parks on a
permanent basis, and they accepted the positions.30
Approximately 1 week later, Carolyn Parks advised Pruitt
that she did not want the hot side position. Pruitt informed
her that she was sorry, but that there were no cold side
openings at the time. On March 10, Carolyn Parks was in
Assistant Food Manager Cobb's office for counseling,
when he also asked her about working on the hot side. He
then had her initial a note on which he had written:
"Carolyn has agreed to accept position working on the hot
side on the patient trayline." 31
4. Concluding findings
The complaint alleges that Respondent transferred
Carolyn Park, Linda Parks, and Betty Parks from not
working on the hot side of the trayline to working
exclusively on the hot side because of their support for the
Union. Therefore, the burden was upon the General
Counsel to show, by a preponderance of the evidence that
in an effort to combat their union activity, Respondent
brought about these transfers. I find that the General
Counsel has not sustained his burden of proof.
It is true that Respondent had knowledge of the union
activity of the Parkses as their names were contained in the
union telegram. Also, the timing of the transfer allows a
suspicion that the transfers were effected to chill their
union activity, but violations of the Act cannot be found
on suspicion.
Food Service Manager Peacock's testimony on the need
for the opening of three hot side positions was reasonable
and uncontradicted, and I credit his testimony. As a matter
of fact there were very few conflicts between the testimony
of the Parkses and the testimony of Respondent's witnesses
concerning the transfers and the surrounding circumstanc-
es. The real problem is the inferences to be drawn from the
often uncontradicted testimony of witnesses for both sides.
It is uncontradicted that Linda Parks did not at any time
tell Pruitt that she disliked or did not want to work on the
hot side. As a matter of fact there is little difference in the
29 Peacock described the Joint Commission as a group of organizations
such as the American Medical Association , Hospital Association, and
Council of Physicians , who have joined together in a self-policing type
organization to inspect and award accreditation to health care facilities.
30 Betty Parks was moved back to the cold side, after she told Pruitt that
she did not like to work on the hot side
duties or working conditions of trayline employees whether
working on the cold side or hot side. Both hot side
employees and cold side employees work in the kitchen the
great majority of their 8-hour day, and it is the heat of the
kitchen that the employees dislike. However, cold side
employees do leave the kitchen to deliver and pickup trays
for 1-1/2 hours a day, which is a plus for cold side
employees. However, cold side employees must do messy
jobs like breaking down food carts and cleaning carts,
duties that hot side employees do not have.
It is also uncontradicted that Pruitt transferred Betty
Parks back to her former cold side position when told by
Betty Parks that she did not like working the hot side. This
accomodation to Betty Parks request is not consonant with
union ammus, and I find none.
This leaves Carolyn Parks as the one remaining transfer-
ee to the hot side, who did not want to remain in a hot side
position. However, Pruitt's testimony, which was uncon-
tradicted and I credit, was that Carolyn had accepted the
permanent transfer to the hot side position, only to change
her mind 1 week later. Hence when she told Pruitt that she
had changed her mind, the permanent positions for the
cold side were filled, and Pruitt was unable to accomodate
her request for a change. Pruitt had originally transferred
the Parkses because she considered them qualified and
capable of working without supervision. This was a
business decision made for the efficient running of the
dietary department.
On the basis of the foregoing evidence it is my conclusion
that the General Counsel failed to establish by a prepon-
derance of the evidence that Linda Parks, Carolyn Parks,
and Betty Parks were the subjects of discriminatory work
transfers, and I shall recommend the dismissal of these
allegations. Okidata Corporation, 220 NLRB 144 (1975);
Merchants Delivery Service, Inc., 219 NLRB 1220 (1975).
D. The Alleged Harassment of Linda Parks,
Carolyn Parks, and Betty Parks; Findings of Fact
and Conclusions of Law With Respect Thereto
General Counsel in his complaint sets forth in paragraph
9, 10, 11, 12, 13, and 14 thereof, various activities which he
contends constitute independent violations of Section
8(a)(1) of the Act. At no place in the complaint is it alleged
that the activities set forth in these paragraphs constitute
surveillance, or the impression of surveillance. General
Counsel in his opening statement did say:
There are several counts of independent 8(a)(1) which
refer to supervisors who have engaged in what General
Counsel feels is surveillance of employees' union
activities during their lunch breaks, at their breakfast,
during their off time in nonproduction areas, which has
had the effect of chilling the employees' lawful right to
discuss the Union on their off time, during their
nonworking time and nonproduction areas.
31 I give little weight to this initialed note because of its background. A
young, unskilled kitchen employee, asked by an assistant department head
to initial this note, would be hard put to refuse such a request
1230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
However, in General Counsel's brief, it is never claimed or
argued that the acts of Respondent set forth in paragraphs
9 through 14 constitute surveillance or the impression of
surveillance. General Counsel in his brief sums up his
argument on how he thinks Respondent violated Section
8(a)(1) in those paragraphs by stating: "Based upon the
above-noted facts, counsel for the General Counsel
submits that Respondent, by and through its supervisors,
harassed union adherents Carolyn Parks, Linda Parks and
Betty Parks in violation of Section 8(a)(1) of the Act."
Respondent in its brief, recognized the vagueness of the
language in the complaint about what violations are
charged in paragraphs 9 through 14 thereof, and states:
"While not stated in the Complaint counsel for the General
Counsel is apparently alleging that Respondent in some
way engaged in surveillance of or created the impression of
surveillance of Carolyn, Linda and Betty Parks' union
activity."
I am in agreement with the General Counsel's complaint
and brief in which he did not assert that Respondent
engaged in surveillance or the impression of surveillance,
as I find none in the record. I have therefore reviewed the
evidence in relation to these paragraphs of the complaint,
and made my findings of fact thereon, on the basis of did
Respondent harass Linda, Carolyn, and Betty Parks, and,
if so, did such harassment constitute interference, threats,
restraint, and coercion in violation of Section 8(axl) of the
Act.
The various activities set forth in paragraphs 9 through
14 are attributed to Food Manager Peacock, his assistant
Cobb, and Trayline Manager Pruitt, all admittedly statuto-
ry supervisors, as well as to Dietary Supervisors Bobbie
Taylor, Patricia Dean, Jo Ann Shiflett, and Irene Carr.
Before I consider the substance of the alleged activities I
shall review the supervisory status of Taylor, Dean,
Shiflett, and Carr as to their coverage or noncoverage by
Section 2(11) of the Act.
1. Supervisory status of Bobbie Taylor, Patncia
Dean, Jo Ann Shiflett, and Irene Carr32
The record is undisputed that Bobbie Taylor, Patricia
Dean, Jo Ann Shiflett, and Irene Carr wore name plates
that carried not only their own name, but also the
description "Supervisor." The record is also undisputed
that Trayline Manager Pruitt informed Linda Parks that
Thelma Holmes and Bobbie Taylor would be her morning
supervisors. Holmes and Taylor normally worked from 5
a.m. until 2:30 p.m., overseeing a work force of 18
employees. Dean ran the afternoon shift starting at 11 a.m.,
with a 14 person work force. Shiflett and Carr were relief
supervisors. All four dietary supervisors performed exten-
sive manual duties, similar to the work done by the tray
aides . The supervisors did direct the aides in the distribu-
tion of the trays on the various floors, as the aides served
32 None of these four dietary supervisors testified in the case, and the
evidence as to their duties and responsibilities is in the main adduced from
the testimony of Pruitt , Peacock , the Parkses, and Muriel City The factual
description of what these supervisors did as seen by the traylme employees,
was not in conflict with the theoretical description of their duties as set forth
by managerial employees
33 The term "supervisor" means any individual having authority, in the
the patients with food. Back in the kitchen, these supervi-
sors filled out a daily work schedule assigning the
employees to extra jobs, such as racking glasses and
cleaning food carts. When a trayline employee did not
showup for work, the supervisors would assign the
additional fill-in work to employees who were present. In
fact, if an employee refused to accept the assignment given
by a supervisor, that refusal constituted grounds for
dismissal as set forth in the Respondent's personnel
handbook. Also, if an employee was unable to report for
work as assigned, that person was required by the
Respondent's handbook that "he must notify his supervisor
or department head immediately."
Pruitt testified that dietary supervisors did not have the
power to hire, to give employees time off, or warn or
discipline employees, and this is uncontradicted. She also
testified that supervisors do not have the power to "fire."
However, the record as to the power of these supervisors to
fire, (discharge in the language of the Act), furnishes a
powerful contradiction to this portion of Pruitt's testimony.
In the personnel handbook, Respondent's Exhibit 5,
under the caption "Termination of Employment," Respon-
dent sets forth three "most common types of termination";
(1) Resignation (2) Quitting and (3) Dismissal. After
dismissal appears the following: "This is an immediate
termination for serious reasons imposed through the
authority of a supervisor or department head." [Emphasis
supplied.] Thus, the official handbook entered into evi-
dence by Respondent states clearly and unequivocably,
that a supervisor (as well as a department head) has the
authority to terminate an employee for serious reasons.
Respondent did not attempt to disavow this printed power
through the testimony of any of its managerial employees
or in its 110-page brief. I cannot call it a nullity and
disregard it, and under the state of the record I must give
this language its plain meaning , and that is , that Supervi-
sors Taylor, Dean, Shiflett, and Carr had the power to
discharge employees.
Since Section 2(11) of the Act33 is written and has been
consistently interpreted disjunctively, the authority of the
supervisors to discharge other employees as set forth in
Respondent's personnel handbook, is sufficient to support
the conclusion that they are supervisors within the meaning
of Section 2(11), and I so find. Respondent in its brief cites
the case of Riveredge Hospital, 205 NLRB 931 (1973), in
which the Board held that a "morning supervisor" was not
a statutory supervisor. While many of the functions of the
morning supervisor were very similar to the dietary
supervisor, there was one all important difference, and that
was the morning supervisor had no authority to discharge,
which makes the cited case inapposite.
Therefore, with the premise that Taylor, Dean, Shiflett,
and Carr are statutory supervisors, I shall review the
charges of harassment in the chronological order as set
forth in the complaint.
interest of the employer , to hire , transfer, suspend , lay off, recall, promote,
discharge , assign , reward, or discipline other employees , or responsibly to
direct them, or to adjust their grievances, or effectively to recommend such
action, if in connection with the foregoing the exercise of such authority is
not of a merely routine or clerical nature, but requires the use of
independent judgment
DIAGNOSTIC CENTER HOSPITAL CORP. 1231
Paragraph 9. Actions of Taylor and Dean: The complaint
alleges that in late January Bobbie Taylor and Patricia
Dean "sat with known Union adherents on the steps that
lead to the entrance to the hospital while these known
Union adherents were on their rest break." Betty Parks
testified that on her lunch break, at about the end of
February or the first of March, Patricia Dean came out and
sat with herself, Linda, and Carolyn Parks. She also
testified that supervisors usually took their breaks at the
same time as the trayline employees. Carolyn Parks
testified that Dean sat with them on the steps outside the
kitchen, about 1 week after her name appeared on the
bulletin board (February 17). Linda Parks testified that
about 2 weeks after her name was placed on the bulletin
board, which would place the date at February 15 she,
Carolyn, and Betty Parks went outside and sat on the back
steps when Dean came out, said she had a toothache and
asked if anyone had an aspirin; when Linda said no, Dean
"just sat down there with us." She also testified that a lot of
tray aides normally ate out there.
Since the Parks' testimony is uncontradicted and not
implausible, I do find that sometime in the month of
February or early March Supervisor Dean did sit with the
Parks during a lunch break. There is nothing in the record
as to whether she sat there 1 minute or 1 hour, and there is
no evidence that she interrogated them about union
acitvity, or that she threatened them, nor is there any
reasonable inference that can be drawn that she sat with
them for an unlawful purpose. Many trayline employees
regularly sat there, and Dean was on breaktime, just as the
aides were. Although the complaint stated that Bobbie
Taylor also sat with Dean on the steps, the Parks at no time
testified that Bobbie Taylor sat on any steps with them, or
was ever near them at lunchtime, so that this allegation
falls of its own weight,
Based on the foregoing, I find that General Counsel did
not establish by a preponderance of the evidence that
Respondent by Dean's activity, or by Taylor, violated
Section 8(a)(1) of the Act, and I shall, recommend this
portion of the consolidated complaint be dismissed.
Paragraph 10. Actions of Peacock and Cobb: The
complaint alleges that from about February 1 and
continuing daily through February 28, Food Service
Manager James M. Peacock III and Assistant Manager
Robert H. Cobb "positioned themselves in close proximity
to known union adherents while these employees were
eating breakfast in the hospital cafeteria."
Linda Parks testified that about 2 days after her name
was posted on the bulletin board [February 21 she, Betty,
and Carolyn Parks were seated at a table in the cafeteria on
their lunch break with other employees when Peacock and
Cobb came, got their lunch, "spotted" her, and came over
and sat right across from her, "about an inch from us" at
the next table. Linda Parks admitted that the cafeteria was
crowded with employees, nurses, and visitors, and that she
did not know if there were other available tables as "I
wasn't looking."
Betty Parks testified that in "about the middle of
March," Cobb and Peacock ate lunch near the Parks in the
cafeteria. She also stated that "usually they wasn't in the
lunch room when we went."
Peacock and Cobb both testified that they regularly ate
lunch in the cafeteria together. They admitted that it was
possible that they had eaten lunch near the Parks but
denied that they had ever purposefully eaten lunch or
breakfast near them.
While the complaint alleges that Peacock and Cobb
positioned themselves close to the Parks for 28 consecutive
days during breakfast, the only testimony adduced by
General Counsel pertaining to the food managers eating in
the cafeteria, concerned one event described by his
witnesses as happening at lunch, not breakfast. Peacock
and Cobb both stated that they ordinarily ate in the
cafeteria. That they did eat in there occasionally, is evident
from Betty Parks ' statement that "usually" they were not in
the lunchroom when she was eating in there. Her use of the
word usually, clearly implies that there were some times
which Peacock and Cobb were in the cafeteria at lunchtime
when the Parks were eating. Linda Parks admitted that the
cafeteria was crowded, and that she did not know if there
were any empty tables or not. Again, there is nothing in the
record as to whether the two managers sat there for 1
minute or 1 hour. There is no testimony that there was any
interrogation, or threats, nor can any reasonable inference
be drawn that the two managers sat there for any unlawful
purpose.
Based on the foregoing, I find that General Counsel did
not establish by a preponderance of the evidence that
Respondent by Peacock's and Cobb's activity violated
Section 8(a)(1) of the Act, and I shall recommend that this
portion of the consolidated complaint be dismissed.
Paragraph 11. Actions of Pruitt - Breakfast: The
complaint alleges that from about February 1 and
continuing daily through February 28, Trayline Manager
Betty Pruitt "positioned herself in close proximity to the
known union adherents while these employees were eating
breakfast in the hospital cafeteria."
Again the evidence produced by General Counsel is far
afield from the allegation. Betty Parks testified that in
about the first week in February, Pruitt started eating
breakfast at 6:30 a.m. with the Parks. When pinned down
as to the number of times Pruitt sat with them she testified
that Pruitt sat at the same table with them once, and that
Pruitt sat near them once . She at first testified that
"Usually she wouldn't go to breakfast with us," and at a
later point she testified that Pruitt had never sat with her
before at breakfast. She stated that Pruitt and Taylor
usually ate breakfast when the trayline aides returned from
breakfast. However, when cross-examined on when Pruitt,
Holmes, and Taylor ate breakfast, she could only answer
that one of the three supervisors always remained in the
kitchen while the other two ate, so that she did not know
when Pruitt normally went to eat breakfast.
According to Linda Parks, Pruitt ate breakfast with the
Parks two times . When confronted with the pretrial
affidavit that she gave to the Board, in which she stated
that Pruitt ate breakfast with the Parks every morning for a
month, she lamely stated: "She followed us. So it could
have been a month."
Carolyn Parks testified that Pruitt ate breakfast with
them "about 2 days," sitting at the same table, but that
prior to that "she don't usually come up there and eat with
1232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
us." However, Carolyn Parks admitted that she had not
kept track of where and when Pruitt had been eating prior
to her signing of the union card.
Pruitt testified credibly, that she normally ate breakfast
at 6:15 a.m. in the hospital cafeteria, with her tray aides. In
fact, the cafeteria at that time was only open to the dietary
employees so that they could eat, and get back to start the
trayline. She candidly stated that she was sure she would
have sat at or near a table with the Parks, because "I
always sit there with my ladies," but she denied ever
purposely sitting at or near a table where the Parks were
eating breakfast.
Assuming, arguendo, that Pruitt sat with the Parkses two
times for breakfast, I cannot fmd a violation of the Act.
The Parkses did not claim that Pruitt interrogated them, or
threatened them or in any manner expressed any disap-
proval of their participation in union activity.
Based on the foregoing, I find that General Counsel did
not establish by a preponderance of the evidence that
Respondent by Pruitt's activity in the cafeteria at breakfast
violated Section 8(a)(l) of the Act, and I shall recommend
that this portion of the consolidated complaint be dis-
missed.
Paragraph 12. Actions of Pruitt-Rest Break: The com-
plaint alleges that on or about February 7, Pruitt "posi-
tioned herself in close proximity to the known union
adherents and followed these employees while they were
working, while on rest breaks and while going to rest-
rooms."
Carolyn Parks was the only trayline aide to testify in
respect to this allegation of the complaint, and her
testimony was very sketchy. She stated that about a week
after her name was posted on the bulletin board (February
7) Pruitt's conduct toward her changed "by following us,"
to the ladies lounge of the restrooms during the aides
breaks. On cross-examination, when asked how many
times Pruitt followed her, Carolyn Parks replied "about 3
times," once to the ladies lounge, once to the phone, and
once to the cafeteria.
This beef inconclusive testimony falls far short of the
burden of proof required of the General Counsel. Parks did
not testify what Pruitt did after she arrived at the restrooms
or at the telephone, whether she remained there observing
them, or merely went to the restroom or telephone for
normal, personal needs. It would be pure speculation to
infer that Pruitt went to the restroom, and to the telephone
for the purpose of harassing Carolyn Parks, as Parks
provided no statements , no threats or no acts of Pruitt from
which this could be inferred.
On the basis of the foregoing evidence, it is my
conclusion that the General Counsel failed to establish by a
preponderance of the evidence that Pruitt's activity
violated Section 8(axl) of the Act. Sarkes Tarzian, Inc.,
169 NLRB 587 (1968); East Side Shopper, Inc., Tri-County
Printers, Inc., Circulation Service, Inc., d/b/a Dawn (Detroit
Area Weekly Newspapers, Inc.), 204 NLRB 841 (1973).
Paragraph 13. Actions of Shett: The complaint alleges
that on or about February 14, Supervisor Shiflett, "posi-
tioned herself in close proximity to the known union
adherents and followed these employees while they were on
rest breaks and to the restrooms."
As Shiflett did not testify, General Counsel relies on the
testimony of one witness, Linda Parks, to prove a violation.
Linda testified that on February 14, she, Carolyn, and
Betty Parks:
We was going around to the restroom and Ms. Shiflett
was coming around there with us, and I asked her
where was she going and she say she was going to the
restroom. So when she went in the restroom she went
inside and used it and we was still sitting on the bench
in there and then I got up and I told Carolyn and Betty
to let's go because Ms. Shiflett was following us and I
say I was going around to the gift shop. And when we
came outside the restroom door we was standing up
and Ms. Shiflett came out behind us and she asked
where was we going. I told her to the gift shop, and she
said, "Oh, yeah. That's right. I've got to go get a
valentine card."
On cross-examination Parks testified that she did not
know if Shiflett bought a valentine card, but that she did go
to the gift shop , at which point the Parks left. Parks also
admitted that this was the only time that Shiflett went to
the restroom at the same time they did.
Parks testimony is uncontradicted and plausible, and I
credit it . However , after crediting it, I am unable to find a
violation . Shiflett was a relief supervisor , and the record
does not show what time of the day that the Parkses went
to the restroom. However , we know from previous
testimony of Betty Parks , that supervisors took their breaks
at the same time as the trayline employees, so it was not
illogical that Shiflett would be going to the restroom at the
same time as the Parkses . When they arrived at the
restroom, the Parkses remained in the lounge , whereas,
Shiflett "went inside and used it," a perfectly normal thing
to do in a restroom . Also, as it was Valentine day, it was
not illogical that Shiflett would be buying a valentine card
at the hospital gift shop that day.
On the basis of the foregoing evidence it is my conclusion
that the General Counsel failed to establish by a prepon-
derance of the evidence that Shiflett 's activity violated
Section 8(a)(1) of the Act.
Paragraph 14. Actions of Carr: The complaint alleges that
on or about February 15, Supervisor Irene Carr , "posi-
tioned herself in close proximity to the known union
adherents and followed these employees while they were on
rest breaks and to restrooms."
As Carr did not testify General Counsel relies on the
testimony of one witness, Betty Parks, to prove a violation,
which essentially is contained in the following answer of
Betty Parks:
Q. And how did her [Carr] conduct change?
A. Well, we was on our break and we went down to
the lounge and she followed us down there and she
asked us for a dime and we told her we didn 't have a
dime . So she sat there with us and when we left she got
up and left with us.
Betty Parks ' testimony is uncontradicted and credible.
However, I am unable to fmd a violation after giving it due
credit . Can was the other relief supervisor and though
DIAGNOSTIC CENTER HOSPITAL CORP. 1233
normally not on the morning shift with the Parks, Betty
Parks admitted that it was the practice for the supervisors
to take their breaks when the other employees took theirs.
Betty Parks quoted no threats or interrogation from Carr
whatsoever, only the request for a dime. Why Carr wanted
a dime could be the subject of unlimited speculation, but it
does not help prove a violation of the Act.
On the basis of the foregoing evidence it is my conclusion
that the General Counsel failed to establish by a prepon-
derance of the evidence that Carr's activity violated Section
8(a)(1) of the Act, and I shall recommend this portion of
the consolidated complaint be dismissed.
E. Respondent's Threats to Employees Concerning
Attendance at Union Meetings; Findings of Fact and
Conclusion of Law With Respect Thereto
Diana George had been hued in October 1974 in the
housekeeping department , to work as a maid in the general
cleanup of patients' rooms. During her 2-day training
period Josephine Broadus informed her that she was her
supervisor, and that she would tell her what to do. Broadus
wore a name tag which had imprinted thereon , "Josephine
Broadus, Supervisor Housekeeping ." Broadus was in
charge of cleaning the patients ' rooms on floors 9, 10, and
11, and she assigned George to floor 11. Occasionally,
when another maid was ill and the hospital had a lot of
checkouts, Broadus would assign her to another floor to fill
in for the other employee. The regular crew to clean a floor
consisted of two maids and one houseman. George testified
that Broadus chiefly checked the floors to see if the work
was done properly, and that once in awhile she might help
them do a check out, wipe something off, or she might strip
a bed, and that this manual work would take about 5 or 6
minutes a day.
In the latter part of January or early February, George
and Mary Mitchell , another housekeeping employee, were
on the 11th floor near the boilerroom or the mechanical
room. George testified that Broadus told them there was
going to be another union meeting, and asked if they had
been going to any. George then testified: "And Mary told
her that she didn't go to them, and I told her I didn't either.
And she told us that if we didn't go we'd better not go
because they were finng just about everybody that went,
and she told us she wasn't supposed to be telling us this.
And she said that it was not going to affect the supervisors,
just the little people, and she walked off, told us she had to
go and check her floors. And she say, `Remember, don't go
to the meetings.' "
Broadus did not testify, and George's account of her
conversation with Broadus on floor I1 is uncontroverted,
and I credit it.
Miriam F. Johnson, executive director of housekeeping
since 1966, testified that she had two shifts in her
department, the first working from 7:30 a.m. to 4:30 p.m.
and the second from 4:30 p.m. to 1 a.m. She was a night
chief supervisor, and a housekeeping training coordinator
who span both shifts. In addition, she has two day time
supervisors , one of whom is Josephine Broadus, who was
assigned to floors 9, 10, and 11, with the other day
supervisor having floors 6, 7, and 8.
Johnson testified that the housekeeping supervisors'
duties were to check the hospital rooms like an inspectress
does in a hotel , and to coordinate their employees in
cleaning the rooms of the patients. Johnson further testified
that on an average , a supervisor would spend 3 to 3-1/2
hours a day performing the same type work as that
performed by other housekeeping employees in cleaning
rooms, such as stripping and making beds, getting the
linen, picking up clean utensils , gathering up various dirty
things and putting them in the dirty utility room. Johnson
admitted that Broadus could move one of her employees to
either of the other two floors under her charge. However, if
Broadus needed help from the employees on floors 6, 7,
and 8 , Johnson would make the decision, and direct the
supervisor of these three floors as to which of her
employees should go up and work on Broadus' floors.
Johnson testified that she alone had the power to hire or
fire employees, to give them time off, to discipline
employees, to decide who will receive pay raises and when
they are to be received, and to determine if overtime is
necessary.
Johnson admitted that when an employee has a "gripe or
a problem," he usually discusses this with his supervisor.
As pointed out by General Counsel in his brief, this
procedure is in conformance with Respondent's pohcy as
set forth in its personnel handbook under the caption,
"Grievance Procedures:" "Should a problem arise, you
should discuss the matter openly and frankly with your
immediate supervisor . In this manner, most problems can
be settled quickly and satisfactorily." Actually, the supervi-
sors could do far more than just discuss the gripe with the
employee, as under the language of Respondent's griev-
ance procedures , the supervisor could settle the grievance.
In the event the supervisor did not settle the grievance to
the satisfaction of the employee, the booklet set forth the
remaining steps in an elaborate grievance procedure.
Johnson's testimony was uncontradicted by George,
except as to the amount of time that Broadus spent in a day
performing the same type of cleanup work as the other
employees . George testified that Broadus spent 5 to 6
minutes a day on manual work , whereas Johnson had her
doing such work up to 3 hours a day. It is not necessary to
choose between these two estimates for, under either
account, the manual work performed by Broadus would
not be equal to half of her workday.
Concluding Findings
Respondent does not contest George 's testimony that
Broadus threatened employees with discharge if they
attended union meetings. Respondent 's defense is that
Broadus was not a supervisor within the meaning of
Section 2(11) of the Act, but only a working supervisor,
and therefore her conduct cannot be attributed to Respon-
dent.
The record is clear that Broadus had no authority to hire,
suspend, layoff, reward, or discipline other employees, or
effectively to recommend such action. However, the record
as to the power of Broadus to discharge is a different
matter.
While Johnson testified that Broadus had no authority to
fire, this is contradictory to the same section contained in
1234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the personnel handbook "Termination of Employment"
that was discussed supra, in reviewing the powers of dietary
supervisors, Taylor, Dean, Shiflett, and Carr. This section
sets forth three procedures for terminating an employee,
with the third method being "Dismissal." After dismissal it
reads "This is an immediate termination for serious reasons
imposed through the authority of a supervisor or depart-
ment head ." As I stated earlier in discussing the dietary
supervisors: Thus, the official handbook entered into
evidence by Respondent states unequivocably, that a
supervisor has the authority to terminate an employee for
serious reasons. This power was not disavowed by
Respondent through the testimony of any of its witnesses,
or in its 110-page brief. I cannot call it a nullity and
disregard it. Hence, I give this language its plain meaning
and that is that Supervisor Broadus had the power to
discharge employees.
Therefore, since Broadus had the power to discharge
employees, to handle the first step of the grievance
procedure, to responsibly direct the work of employees in a
three-floor area, and to transfer employees from one job
and one floor to another, I find that Broadus did occupy
the status of a supervisor within the meaning of Section
2(11) of the Act. While Broadus herself did not threaten to
discharge George and Mitchell, she plainly warned them of
what action management would take if they engaged in the
protected activity of attending union meetings. It is
concluded that her statement was a threat of discharge for
union activity.
Consequently, it is concluded that Respondent by the
conduct of Broadus on that date, did threaten employees
with discharge for union activity in violation of Section
8(axl) of the Act.
V. THE REMEDY
Pursuant to Section 10(c) of the Act, as amended, it is
recommended that Respondent be ordered to cease and
desist from engaging in the unfair labor practice found and
in any like or related conduct and take certain affirmative
action designed to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6), (7), and (14) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By warning employees that they were subject to
discharge if they attended union meetings , Respondent
interfered with , restrained, and coerced employees in the
exercise of their statutory rights within the meaning of
Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practice affects commerce
within the meaning of Section 2(6) and (7) of the Act.
5. Respondent has not engaged in the other unfair
labor practices alleged in the consolidated complaint.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, as amended, I hereby issue the following recommend-
ed:
ORDER 34
The Respondent, Diagnostic Center Hospital Corp. of
Texas, Houston, Texas, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Warning employees that they risk discharge if they
attend union meetings.
(b) In any like or related manner interfering with,
restraining , or coercing, employees in the exercise of rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Post at its hospital in Houston, Texas, the attached
notice marked "Appendix." 35 Copies of the notice, on
forms provided by the Regional Director for Region 23,
after being duly signed by Respondent's authorized
representative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to ensure
that said notices are not altered, defaced, or covered by any
other material.
(b) Notify the Regional Director for Region 23, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
34 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.
35 In the event the Board 's Order is enforced by a Judgment of the
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 "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT warn our employees that they risk
discharge if they attend union meetings.
WE WILL NOT in any like or related manner interfere
with, restrain , or coerce employees in the exercise of
rights guaranteed them by Section 7 of the Act.
WE hereby notify our employees that they are free
to attend union meetings.
DIAGNOSTIC CENTER
HOSPITAL CORP. OF TEXAS