Garfield Park Comprehensive Commumity Health Center

National Labor Relations Board - Board Decisions

Oct 11, 1977

232 N.L.R.B. 1046 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Garfield Park Comprehensive Community Health
Center, Inc. and Elizabeth K. Jackson. Case 13-
CA-1 5680
October 11, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
On May 25, 1977, Administrative Law Judge
Bernard Ness issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions.
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 has
decided to affirm the rulings, findings, and conclu-
sions of the Administrative Law Judge, and to adopt
his recommended Order,' except that his remedy is
modified so that interest is to be computed in the
manner prescribed in Florida Steel Corporation, 231
NLRB 651 (1977). 2
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, Garfield Park
Comprehensive Community Health Center, Inc.,
Chicago, Illinois, its officers, agents, successors, and
assigns, shall take the action set forth in the said
recommended Order.
I In accord with his dissent in East Oakland Communitv Health Alliance.
Inc.. 218 NLRB 1270 (1975). Chairman Fanning agrees with the assertion of
jurisdiction in this proceeding.
2 See, generally, Isis Plumbing & Heating Co., 138 NL RB 716(1962).
DECISION
STATEMENT OF THE CASE
BERNARD NESS, Administrative Law Judge: A hearing in
this proceeding was held in Chicago, Illinois, on January 3
and 4, 1977. The complaint, issued by the General Counsel
of the National Labor Relations Board on September 22,
1976, was based on an unfair labor practice charge filed by
Elizabeth Jackson, an individual, on July 30, 1976. The
complaint, as amended at the hearing, alleges that Garfield
Park Comprehensive Community Health Center, Inc.,
herein called the Respondent, or the Agency, discharged
Ms. Jackson because of her protected concerted activities
on July 29, 1976, in violation of Section 8(a)(1) of the Act.'
I The complaint was amended at the hearing to reflect the Respondent's
correct name as it appears in the caption. Prior to the hearing, the complaint
had been amended to add anotherjurisdictional allegation.
232 NLRB No. 163
The Respondent, in its answer, has denied the commission
of any unfair labor practices. At the close of the General
Counsel's case, the Respondent renewed a motion, previ-
ously denied, for dismissal of the complaint for lack of
jurisdiction. The motion was denied.
Upon the entire record, including my observation of the
witnesses, and after due consideration of the oral argument
made by the General Counsel at the hearing and the brief
and memorandum filed respectively by the Respondent
and the General Counsel, I hereby make the following:
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a nonprofit Illinois corporation with
its facility located in Chicago, Illinois, where it is engaged
in providing community health care. Dr. Bobby Wright,
the Respondent's executive director since the Agency
opened in 1973, testified that the Respondent is the largest
freestanding comprehensive community mental health
center in the country that is controlled by Blacks. It is
solely responsible for a certain area on the west side of
Chicago and is responsible for mental health needs of
about 100,000 people, of which number over 99 percent are
Black. No charge is made to patients for services. Funding
for its operation comes from the Department of Health,
Education and Welfare with matching funds from the State
of Illinois. Total money received for the fiscal year ending
June 30, 1976 was $1,159,480 and was received from
sources as follows: $536,327 from HEW, $560,936 from the
Illinois Department of Mental Health, and $62,216 from
the Respondent's Sheltered Workshop. The funds received
from HEW are used solely for staff salaries and fringe
benefits. The funds received from the State of Illinois are
used to match the Federal funds for salaries and fringe
benefits plus additional money for services, utilities, rent,
etc. The equipment used at the Agency is all state property.
According to Dr. Wright, insurance paid by the Agency for
malpractice, fire, etc. is paid to insurance companies within
the State of Illinois; although not certain he thought the
Agency paid about $1,500 in premiums to an insurance
company outside the State of Illinois. Purchases outside the
State of Illinois are minimal, such as a subscription to a
periodical.
The Respondent, in his brief, points to some factual
differences in the business of the Respondent from that
involved in East Oakland Community Health Alliance, Inc.,
218 NLRB 1270 (1975), where the Board asserted jurisdic-
tion. However, I find such differences of little significance.
As the Board stated in East Oakland, medical care facilities
whose activities may be local in character, may neverthe-
less have a substantial impact on commerce. Although in
the cited case the greatest portion of the health care
institution's revenues was derived from Federal revenue
sharing, the amount so received was far less than the
amount received through HEW grants in the present case,
albeit the Federal funds herein were only about 49 percent
of the total grants received. Accordingly, since the
Respondent's gross annual revenues exceed the $250,000
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GARFIELD PARK HEALTH CENTER
per annum standard, and because the receipt of moneys
through federally supported health care programs ade-
quately demonstrates that the Respondent's operations
have a substantial effect on commerce, I find the
Respondent is an employer whose operations affect
commerce within the meaning of Section 2(2), (6), (7), and
(14) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICE
A. Background and Issues
The Respondent provides community mental health care
to residents in a particular area in Chicago. Its executive
director since it began operations in 1973 has been Dr.
Bobby Wright. Dr. Wright has a Ph.D. from the University
of Chicago in clinical psychology. No labor organization
has represented the employees of the Respondent nor does
the record show any attempts to organize them. There are
about 65 staff employees. Elizabeth Jackson commenced
her employment with the Respondent on September 8,
1975, as a psychologist. She has a Bachelor of Arts degree
from U.C.L.A., a Master's degree in clinical psychology
from Meharry, and at the time of the hearing was working
towards a Ph.D. at Northwestern. Included among her
responsibilities at the Agency were intake responsibilities,
visitations to various schools testing mentally disabled
children, and testing children at the Agency referred by the
school system. The probationary period for new employees
was 4 months. Her initial supervisor was Katheryn
Ogletree. In Ogletree's performance evaluation report of
Ms. Jackson, dated January 27. 1976,2 she recommended
the probationary period be extended through March 31.
Although the report indicated Jackson possessed good
skills, questions were raised regarding her "separating her
personal life and subjective feelings from her professional
responsibilities as they relate to her job" and intervening in
a supervisory problem. Ms. Jackson testified she believed
this referred to her intervention in early January on behalf
of a fellow employee about to be discharged. This action
was conceded by the General Counsel and the Respondent
not to have played any part in the subsequent discharge of
Ms. Jackson on July 29. At the conclusion of the extended
probationary period, Jackson achieved permanent status.
The General Counsel contends that Jackson was dis-
charged on July 29 because she had solicited suggestions
from fellow employees concerning policies and criteria to
be used in granting wage increases for submission to Dr.
Wright. The General Counsel argues that such activity
constituted protected concerted activity and the discharge
for that reason violated Section 8(a)(1) of the Act. The
Respondent argues that Jackson's action in soliciting the
employees was not for the mutual aid and benefit of fellow
employees but was to satisfy an individual "gripe" and thus
did not constitute concerted activity. The Respondent
further argues that Jackson was discharged because of an
2 All dates hereinafter refer to 1976 unless otherwise stated,
: Jackson admitted having talked to Harris' supervisor on his behalf.
Coordinators are one step higher than "supervisors' in the manage-
ment hierarchy. The parties stipulated both were supervisors within the
meaning of the Act.
accumulation of acts constituting insubordinate conduct
and resistance to supervision.
B. The Events Leading to the Discharge
At a staff meeting on July 1, Dr. Wright announced there
would be no wage increase that year because of lack of
funds but the retirement pension plan fund would be
increased 5 percent. On payday, about 10 days later,
Jackson learned that a number of employees had received
wage increases. The next day she told Dr. Wright she had
heard some employees had received increases and wanted
to know why she had not received one. Jackson inquired as
to the criteria used in granting increases. Wright told her
she had recently completed her probationary period and
she had not been recommended for an increase by her
supervisor. Wright also mentioned she had interceded with
a local alderman in January on behalf of a fellow
employee, Harris, who was about to be discharged.
Jackson denied having interceded with the alderman and
remonstrated that Wright was continuing to falsely accuse
her of such action.3 Wright rebuked her for using profanity
in his presence and told her to see her supervisor or
coordinator for the guidelines used in recommending
raises.4 Dr. Wright testified the profanity Jackson used was
the word "shit" and she used it on two occasions in July -
once in this meeting and at a subsequent meeting on July
26. Jackson denied the use of any profanity at the earlier
meeting. Wright conceded no profanity was directed to
him personally.
On July 21, Dr. Wright held another staff meeting. He
discussed how raises were granted - that coordinators
solicit recommendations from supervisors. He told the staff
that if anyone had any suggestions concerning salary
increases to submit them in writing to him by Friday, July
23. In response to Jackson's question, he confirmed the
suggestion should be in writing and presented to him by
July 23. Jackson was the only staff member who spoke at
this meeting.
On Thursday, Jackson normally does developmentally
disabled testing for children who are referred to the
Agency by the school system for testing. On Thursday, July
22, she was scheduled to test two children at the Agency. 5
Early that morning, the parents of the children called in to
report the children were not coming in. She then went
around to individual staff members and asked them if they
agreed to compile into one document the proposals or
suggestions they had concerning the wage increases for
presentation to Dr. Wright. She then noted the suggestions
made by the staff members. In all, she solicited suggestions
from 41 members, including supervisors and coordinators.
It is undisputed Jackson spent the entire working day on
July 22 in this solicitation. None of the supervisors
objected to her performing this activity during working
hours.
On July 23, she prepared a memorandum to Wright. 6
The memorandum stated it was from "The Staff" and the
I She testified testing for each child takes about 4 hours.
6 G.C. Exh. 2. Jackson's July 23 memorandum to Wnght was the
opening gun in the battle of memoranda between the two. To more fully
comprehend the attitude and feeling towards each other, their memoran-
dums are set forth herein.
1047
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
author was not otherwise identified. The initials of the
typist appeared at the bottom. The memorandum read as
follows:
Due to the numerous suggestions and responsiveness of
the staff to your directive on July 21, 1976, to make all
comments and input regarding staff salary increases
known to you by July 23, 1976, we wish to submit a
detailed response to your directive by Tuesday, July
27th.
Because responses were so comprehensive, time is
needed to record, compile, and submit said suggestions.
We are grateful for your cooperation in this matter.
When Wright saw the memorandum in his box that
afternoon he learned from the typist it was Jackson who
had prepared the memorandum. He also ascertained from
other employees that Jackson had gone around the day
before soliciting suggestions from other employees. At
about 3 p.m. he could not locate Jackson and noted she
had signed out as of 5 p.m. He then prepared a
memorandum to her that afternoon (General Counsel's
Exhibit 3).7 It read as follows:
The method in which I received the memorandum
concerning salary increases on July 23, 1976, from "The
Staff" is very disturbing. Since you dictated the memo
and solicited the comments, you should have taken the
responsibility for signing the memo as reflecting the
views of some staff members. Instead I received the
memo in my box without any signature or other
identifying information except the secretary's initials. I
am very concerned that you used this type of subter-
fuge in this situation. The memo implies that the total
staff had concerns, comments and input, when in fact,
you took it upon yourself to go around and interview
staff members. You also misrepresented the facts when
you told certain staff members that I had only given
you a day to respond. I announced at the staff meeting
on July 21, that anyone wishing to have input, should
respond in writing by July 23rd. 1 am well aware of how
divisive tatics [sic] can be used to create staff dissen-
sion. On July 27, 1976, please have the courtesy and
professionalism to deliver the comments to me person-
ally, in order that we may discuss them.
On another matter, when I searched for you today to
discuss the above, I found that you had signed out for 5
p.m., although it was approximately 3 p.m., at the time.
I would suggest that you familiarize yourself with the
regulations of this agency since that is a serious
violation.
On July 26, Jackson was called into Wright's office and
given Wright's July 23 memorandum. He rebuked her for
not having signed the July 23 memorandum indicating it
was her memorandum and not one from the staff. Basically
he repeated his comments contained in the first paragraph
7 I discredit Dr. Wright's other testimony elsewhere in the record that it
was not until July 27 that he learned she had solicited the employees. His
of his July 23 memorandum described above. She replied it
was obvious the memorandum was not intended to be hers
alone and to call her in for such criticism was silly. He also
criticized her for signing out at 5 p.m. on July 23 and she
offered her explanation. He once again referred to her
intervention on behalf of employee Harris about 6 months
before. Her contentions concerning his criticism were
reduced to writing in her memorandum to him, dated July
27 (G.C. Exh. 4a). Contrary to Wright's testimony I find
that at this July 26 meeting he did not accuse her of
wasting Agency time in soliciting the views and suggestions
of the other employees concerning wage increase policies.
If he had harbored any criticism of her on this point at that
time, he most likely would have included this in his
memorandum he handed her at this meeting.
On July 27, Jackson put in Wright's box a memorandum
of the same date responding to his July 23 memorandum. It
read as follows:
In the memorandum that you sent me dated July 23,
1976, you commented that the method by which you
received the memorandum was "very disturbing." You
also go on to say that since I dictated the memo and
solicited the comments, I should have taken the
responsibility for signing the memo as reflecting the
views of some staff members.
While your above comments are true Dr. Wright,
and I indeed did solicit over 57% of the staff (41 staff
people in all) - I felt it quite unnecessary to sign all 41
names to an eight line memorandum.
I was certainly not trying to be deceptive or
"divisive" in any way. How could one be "deceptive"
when openly soliciting comments from 41 staff mem-
bers, among them the Clinical Director, and a number
of coordinators and supervisors. I did not sign my
name because I felt that it was not my memo - Indeed,
I looked upon it as the staff's memo, since the proposal
was a survey of sorts. I am sorry that you misinterpret-
ed my intentions.
On the second matter, regarding my sign-in, sign out
procedure, if you will note both sign out sheets for
Friday, July 23, 1976, you will note on one sheet, I
specifically signed "Children Group" 2:45 - 5:00, and
on the main sheet 5:00 for time out. I accompanied
Yolande (Barnes) Pickett, Georgia (Walker) Hines, and
seventeen children to the park for their picnic. I will
make a note next time to write all the information on
the main sign-out sheet, so that you will not be
confused as to my whereabouts.
Also on July 27, Jackson put in Wright's box a compilation
of the suggestions regarding pay raise increases, consisting
of three pages, single-spaced on legal size paper. The
foreword stated the suggestions were solicited by Jackson,
acting on behalf of the staff members named, and the
comments described were those of the members solicited.
The covering page stated it was from "Elizabeth Jackson
(Compiler, Author) with contributions from" and then
beneath appeared the names of 41 employees and supervi-
memorandum clearly shows he was aware she had interviewed other
employees.
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GARFIELD PARK HEALTH CENTER
sors. Jackson had worked on compiling these suggestions
into one document the evenings of July 22 and 23 and over
the weekend. On July 27, Jackson requested one of the
typist at the Agency, Jessie Foreman, to type it for her.
They both agreed it was to be typed on a priority basis. It
took Foreman 3-4 hours to complete the typing.8 Foreman
normally did not work in the typist pool. She did statistical
work and in her spare time assisted in typing under the
supervision of Jackie Steele, supervisor of the clerical pool.
Steele testified that in the morning there was an abundance
of material in the box waiting to be typed and she asked
Foreman to help out, but Foreman begged off, saying she
was working on statistical data which was her first priority.
In the early afternoon, Steele noticed Foreman typing the
material Jackson had given to her and asked Foreman why
she was working on that when there was material waiting
to be typed. Foreman said Jackson had given it to her and
said it was a priority. Foreman became annoyed and
accused Steele of not wanting her to type it. Steele then
spoke to Wright and asked him to straighten out the
disagreement. Foreman was then called in and Dr. Wright
explained the system governing the order in which work
was to be done. In any event, Foreman was permitted to
complete Jackson's compilation late that afternoon.9 In the
morning of July 28, after Wright had read Jackson's July
27 memorandum and her compilation of suggestions, he
prepared his response which was given to Jackson by
Wright's secretary (G.C. Exh. 5). Wright's response, dated
July 28, read as follows:
Your response to my memo of July 23, 1976, points out
the lack of insight and judgment that you continue to
exhibit. Specifically:
1. It was not suggested that 41 names should have
been on the memo from "The Staff," but that since you
solicited the responses, you should have signed it, as
you did the memo on July 27, 1976, regarding staff
responses. Further, you did not address the issue in
which you told staff members that I had only given you
one day to respond and that leads into the next issue;
2. I am not aware of who gave you permission to
use an inordinate amount of agency time interviewing
and compiling responses to the issue of salary increases.
You further took the liberty to engage a secretary to
type, place on a stencil and run-off a four page
memorandum to me with copies for the entire staff. This
involvement of the secretary resulted in a conflict with
her supervisor which ultimately involved me.
3. 1 am requesting that you learn the sign out
procedure. The main sign out sheet allows a person to
sign out the exact time they leave with space for where
they are going. It is not only important that I know
your whereabouts, but any other administrator who
seeks you.
4. As we were concluding our conference on July
26, 1976, you made the statement, "I am getting tired of
8 A stencil was cut and then the document was reproduced. Jackson
assembled the pages, stapled them, and then put copies in the box of each of
the 41 staff members she had contacted. She also put a cops in W\right's hox.
Agency material s as used in the preparation of the document.
9To the extent of his participation. Wright corroborated Steele's
testimony. Foreman was not called as a witness.
this shit." That was enough to terminate you on the
spot. Less than two weeks ago, I informed you that I
did not accept the use of profanity, which seems to be a
significant part of your vocabulary, between staff
members and requested that you not use it with me. I
bring this up because your behavior since you have
become an employee has been less than satisfactory
and I must warn you that if it continues, your
employment at this agency will be terminated.
Later that day, Jackson was called into Wright's office.
Present with Wright were Clinical Coordinator Love and
Anita Underwood, Jackson's immediate supervisor at the
time.i° Wright told her that all she had done since he
brought her from California to the Agency was cause him
trouble and he didn't understand why she was turning the
staff against him. She explained the staff had a right to
some type of standard criteria for granting wage increases.
Wright also complained about her use of the typist and
Agency material and time. She responded that she did not
twist the typist's arm - that the typist did what she
thought was priority. And with respect to her spending
Agency time on July 22 in soliciting suggestions, she said
she would do it all over again because it was the right thing
to do." Wright warned her that if she caused any more
trouble she would be terminated.
The battle of the written word waged on. On July 29,
Jackson prepared a memorandum responding to his July
28 memorandum. It was given to Dr. Wright that day (G.
C. Exh. 6).t2 It read as follows:
In regards to your memorandum of July 28, 1976. 1
wish to make the following response:
1. I addressed point one (regarding the fact that I
did not sign my name to the memo of July 23, 1976) in
my last memo to you dated July 27, 1976. Please refer
to the third paragraph, fourth line for specifics.
Since all of my comments and solicitations have
been above board, throughout this entire process, I
would certainly ask the same from you. So as regarding
the issue of not responding to your accusations of
telling the staff that I had only one day to respond to
the salary increase question, I would request to know
the individual who gave you such information, and if
the names cannot be provided by you, then this issue
must certainly be an insignificant one-since this is a
question of some anonymous entity, outside of myself,
making statements to you that would affect my welfare
and livelihood. Furthermore, as a sheer matter of
practicality, there was little more than a day to respond,
since you gave us the directive on the eve of July 21,
1976. and since there was a goodbye party on that
afternoon, directly after staff meeting; that would stand
to reason that an individual would have approximately
one day and a half to get any such input back to you.
'O Neither Love nor Underwood testified.
Certain errors in the transcript have been noted and corrected.
2 Mistakenly dated July 30.
1049
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
So what are we quibbling about-the question of a
semantic difference?
2. A natural assumption on my part-and I would
assume the rest of the staff as well, felt you had given
permission to use agency time to illicit [sic] responses
concerning salary increases. It would seem to make
little difference whether time taken was used by forty-
one (41) people individually, or only a portion of their
time, plus more of my time, to solicit a collective
response, as long as my work did not suffer. It must
attest to my professional judgement, that I would only
do this under circumstances where I could afford to use
the time. More significantly, your memo of July 23,
1976 reinforced my thinking that I had acted properly
engaging in the activities as issue. If you will refer back
to that document, you requested that I "please have the
courtesy and professionalism to deliver the comments
to me personally, in order that we may discuss them."
Unfortunately, all discussion we have engaged in
subsequent to that memo, has been centered around
issues that do not relate to staff salary structure.
3. As regards my error in signing out last week, it is
fairly common practice at this agency for employees to
make such mistakes, since the sign out procedure has
been the subject of numerous discussion and policy
changes. In my memo of July 27th, I made it clear that
no improper intent was involved, therefore, I fail to
understand why the combination of these things leads
you to a consideration that my behavior was "a serious
violation."
4. As concerns the allegation that profanity seems
to be a significant part of my vocabulary, I flatly deny
that. In fact, the instance in which I used such
language, which you accurately refer to in your memo
of July 28th, I felt that I had been provoked to such an
extent, that my response was not an unreasonable one.
If you will recall, you had levelled numerous unfound
allegations against me concerning matters in which had
I been involved, as you charged, should have emerged
months ago. If your accusations concerning these
matters are true, I suggest you come forward with
tangible evidence in order to dispose of this matter
once and for all.
Finally, 1, and presumably the rest of the staff, would
appreciate some response from you, concerning the
issue of salary increase, which apparently has been lost
somewhere in the shuffle. It appears that an issue which
generated the participation of the majority of the
staff-would assume a level of importance far greater
than you've indicated to me, since you have yet to
address the issue. My personal involvement is not
intended to be divisive or subversive. However, if my
participation per se is interpreted as subterfuge, then it
would seem that any staff person who represented a
point of view, (indeed in this instance one solicited by
you) which was the least bit controversial, would be
subject to similar charges. I do not believe you intended
to project that connotation.
l: Corroborated by the testimony of Clifford I'aylor, iTommie Williams
and Brenda Hampton. However, there is no testimony that they expressed
any reluctance to Jackson to permit her to act as the spokesman.
I expect that you will accept staff recommendations
in the spirit in which they were given, and hopefully use
them as a framework for restructuring present pay
scales at this agency.
After Wright received Jackson's latest memorandum on
July 29, he called her into the office and handed her his
latest memorandum of that date announcing her termina-
tion. (G.C. Exh. 7) It read as follows:
It is clear that the conference with me and your
supervisors on July 28, 1976, was to no avail. Therefore,
this is an official notice that your services at this agency
are being terminated for "just causes." Specifically, for
gross misconduct and blatant insubordination e.g.,
your memorandum dated July 30, 1976. This termina-
tion is effective at the end of this working day. You are
to return all of the agency's material and properties.
C. Respondent's Defense
In his brief, Respondent's counsel first contends Jack-
son's solicitation of opinions from staff members concern-
ing wage increase policies was not a protected concerted
activity. He argues her activity was in pursuit of an
individual "gripe" and not designed for the mutual aid or
protection of the other employees. He argues further that
after her solicitation activity she displayed a continuous
hostile attitude towards management and resisted supervi-
sion. As he stated in his brief, it was not what she did on
July 22 that caused her termination, it was her manner of
doing things.
Dr. Wright testified at length concerning his conversa-
tions with Jackson and described his mental processes
which finally resulted in her discharge. He testified that
until his meeting with her on July 28, he had in mind only
to reprimand her. But because of her hostile attitude
towards him at the meeting on July 28 he began to consider
discharging her. And when he received her July 29
memorandum, the decision to discharge her was clear.
D. Conclusions
The first issue to be resolved is whether or not Jackson's
activity on July 22 constituted concerted activity. It will be
remembered that at a staff meeting on July 21, Dr. Wright
told employees they could submit suggestions to him in
writing by July 23 concerning wage increase policies. It is
clear that the criteria for granting wage increases is a
matter of continuing concern to members of a work force.
Jackson took the forefront and sought to solicit suggestions
from the staff members. She explained to them she was
compiling all the suggestions into one document for
presentation to Dr. Wright. It was obvious she intended to
act as a conduit for transmission to Dr. Wright of the
suggestions for standards to be employed by the Respon-
dent in granting wage increases. Dr. Wright testified he was
told by several staff members they did not authorize
Jackson to use their names.' 3 As stated above, the staff
members knew Jackson intended to present the suggestions
1050
GARFIELD PARK HEALTH CENTER
to Dr. Wright and nevertheless offered their suggestions. I
find that the staff members at the very least impliedly
consented to her role on behalf of the employees in
communicating with Dr. Wright concerning the wage
increase criteria. Accordingly, I find that under the
circumstances described herein, Jackson's activity on July
22 was a concerted activity for the mutual aid or protection
of the employees.
The more troublesome issue is whether or not Jackson's
conduct in carrying out this protected concerted activity
and her subsequent behavior during the course of the
protected activity rose to the level of seriousness sufficient
to forfeit the protection of the Act.
It is well settled that employees must be granted
considerable latitude about the way in which they engage
in concerted activities, if the guarantees of the Act are to
have a substantial practical effect. Otherwise, employees
might avoid exercising their statutory rights for fear of
reprisal by their employer at the first misstep. Employees,
when engaged in concerted activity under the Act, may be
insulated from punishment for conduct which, in a
different context, might properly be regarded as grounds
for discharge.i 4
On July 23, Dr. Wright already knew that she had
solicited suggestions from other employees, as evidenced
by his memorandum to her of that date. He accused her of
creating staff dissension. It was not until his memorandum
of July 28 that he first warned her that if her "behavior"
continued, her employment would be terminated. By that
time he also alluded to her use of the typist's time to
prepare the compilation of the suggestions from the staff
members. He again referred critically to her not having
shown that her July 23 memorandum to him originated
from her and not the staff. He also again referred to her
failure to sign out properly on July 23 and her use of
profanity on July 23. It was after he prepared this
memorandum that he met with Jackson. At this July 28
meeting Dr. Wright considered discharging her. It was here
that Dr. Wright accused her of fomenting trouble and
turning the staff against him. There was only one reason
for making these accusations; he resented her leading the
way in instigating suggestions for the establishment of
standards for granting wage increases and because of his
mistaken belief she was attempting to represent she was the
agent for the entire staff. He also referred to the use of the
typist and Agency material and time. At the end of the
meeting, he warned her she would be discharged if she
caused any more trouble. I am convinced that when Dr.
Wright received Jackson's July 29 memorandum i he
finally decided to discharge Jackson - and he did.
The genesis of the decision to discharge Jackson arose
when Jackson took the forefront in soliciting suggestions
from various staff members. Initially, Dr. Wright voiced no
concern that she had gone around during the workday
compiling this data. Not even the supervisors who were
interviewed by Jackson objected to her use of working
time. What provoked Dr. Wright was that she sought out
suggestions and assumed the leadership. In engaging in this
activity, it could not be said this caused a disruption in the
1 H. O Seiffert (omprani. 199 NLRB 960, 966 967 (19721, enfd.
unpublished memorandum. 86 LRRM 2152, 75 I.C 10.568 (C.A. 9. 1974).
Agency's operation. For this is not an assembly line
operation where a cessation of work by one employee
could affect the entire operation. Here we are dealing with
a professional person whose appointments scheduled for
that day had been unexpectedly cancelled. Dr. Wright was
the one who initially invited suggestions. Had Jackson
utilized this free time to engage in another type of activity
not relating to working conditions, I have serious doubts
there would have been a barrage of memoranda or any
serious criticism by Dr. Wright. Nor do I believe Jackson's
use of the typist falls in the category of misconduct which
would remove her activity from the protection of the Act.
Dr. Wright was brought into the dispute between Steele,
the pool supervisor, and the typist, not because Jackson
had given the typist the material to type. It was because the
typist chose to type this material rather than work on
material Steele wanted to give to her. It cannot be said that
Jackson should be held accountable for the typist's
selection of priorities. As for the use of agency material and
Jackson's method in signing out on July 23, these were all
incidents stemming from Dr. Wright's annoyance at
Jackson's role in the presentment of the employees'
suggestions.
The exchange of memoranda between Dr. Wright and
Jackson, her leadership role in soliciting and compiling the
suggestions, and the positions taken by Jackson in the
meeting with Dr. Wright depicted her as an aggressive
individual, but also one who was persistent in pressing Dr.
Wright for the establishment of standards in granting wage
increases for the mutual benefit of the staff. She had
canvassed 41 of the 65 staff members, including superviso-
ry personnel.
I am aware that under Board precedent, if part of the
reason for terminating an employee is unlawful, the
discharge violates the Act. Dr. Wright finally decided to
discharge Jackson after receiving her July 29 memoran-
dum. In this memorandum she continued to press him for a
response concerning "the issue of salary increase, which
apparently has been lost somewhere in the shuffle." Based
on the entire record, including my observation of Dr.
Wright as he testified, I am convinced that had Jackson
spent the entire day on July 22 in some other type of
activity not relating to working conditions or not offensive
to Dr. Wright, the barrage of memoranda and confronta-
tions between the two ultimately leading to her discharge
would not have occurred. In short, I find that the primary
reason for discharging Jackson was because she solicited
suggestions from staff members concerning wage increase
policies, presented a compilation of these suggestions to
Dr. Wright, and pressed him for a response. I find such
activity to be protected concerted activity and the dis-
charge violated Section 8(aX l) of the Act.
CONCLUSIONS OF LAW
1. Respondent is an employer whose operations affect
commerce within the meaning of Section 2(2). (6), (7). and
(14) of the Act.
15 As stated earlier. it was mistakenly dated July 30
1051
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. By discharging Elizabeth K. Jackson for engaging in
protected concerted activity, Respondent has violated
Section 8(a)(l) of the Act.
3. The aforesaid unfair labor practice is an unfair labor
practice within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
Having found that the Respondent has violated Section
8(a)(1) of the Act by terminating Elizabeth K. Jackson, it
will be recommended that the Respondent cease and desist
therefrom and take certain affirmative action to remedy
the unfair labor practice and effectuate the policies of the
Act. It shall be ordered that the Respondent offer Elizabeth
K. Jackson full and immediate reinstatement to her former
position or, if that job no longer exists, to a substantially
equivalent position, without prejudice to her seniority or
other rights and privileges, and make her whole for any loss
of earnings she may have suffered in consequence of her
unlawful discharge. Backpay shall be computed on a
quarterly basis, plus interest at 6 percent per annum, as
prescribed in F. W. Woolworth Company, 90 NLRB 289
(1950), and Isis Plumbing & Heating Co., 138 NLRB 716
(1962), from the date of discharge to the date reinstatement
is offered.
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recommend-
ed:
ORDER '
The Respondent, Garfield Park Comprehensive Commu-
nity Health Center, Inc., its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Interfering with, restraining, or coercing employees
by discharging employees for engaging in concerted
activities.
(b) In any other manner interfering with, restraining, or
coercing employees in the exercise of rights guaranteed in
Section 7 of the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Offer Elizabeth K. Jackson immediate and full
reinstatement to her former position or, if that position is
no longer available, to a substantially equivalent position,
without prejudice to her seniority or other rights and
privileges, and make her whole for any loss of earnings she
may have suffered as a result of her discharge by the
Respondent in the manner set forth in the section of this
Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze the amount of backpay due under the
terms of this recommended Order.
(c) Post at its place of business at Chicago, Illinois, copies
of the attached notice marked "Appendix."' 7 Copies of
said notice, on forms provided by the Regional Director for
Region 13, after being duly signed by the Respondent's
representative, shall be posted by the Respondent immedi-
ately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places, where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent
to insure that said notices are not altered, defaced, or
covered by any other material.
(d) Notify the Regional Director for Region 13, in
writing, within 20 days from the date of this Order, what
steps have been taken to comply herewith.
16 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.
17 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall 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 interfere with, restrain, or coerce
our employees by discharging them for engaging
in protected concerted activities.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of rights guaranteed them by Section 7 of
the National Labor Relations Act.
WE WILL offer Elizabeth K. Jackson reinstate-
ment to her former position or, if that position is
no longer available, to a substantially equivalent
position, without prejudice to her seniority or
other rights and privileges.
WE WILL make Elizabeth K. Jackson whole for
any loss of earnings she may have suffered as a
result of our unlawful action against her.
GARFIELD PARK
COMPREHENSIVE
COMMUNITY HEALTH
CENTER, INC.
1052