Louis A. Weiss Memorial Hospital

National Labor Relations Board - Board Decisions

Oct 31, 1997

324 N.L.R.B. 946 (N.L.R.B. 1997)

946
324 NLRB No. 150
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
2 The Respondent has requested oral argument. The request is de-
nied as the record, exceptions, and briefs adequately present the
issues and the positions of the parties.
Louis A. Weiss Memorial Hospital and Barbara
Zimmerman. Case 13–CA–32785
October 31, 1997
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS FOX AND
HIGGINS
On January 16, 1997, Administrative Law Judge
Nancy M. Sherman issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The General Counsel filed a memorandum in answer
to the Respondent’s exceptions and brief, and the Re-
spondent filed a reply brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions1
and briefs and has decided to affirm the judge’s rul-
ings, findings,2 and conclusions and to adopt the rec-
ommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Louis A. Weiss Memorial
Hospital, Chicago, Illinois, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
Order.
Emilie Schrage, Esq., for the General Counsel.
James N. Kosmond, Esq. and Charles E. Whalen, Esq., both
of Chicago, Illinois, for the Respondent.
DECISION
STATEMENT OF THE CASE
NANCY M. SHERMAN, Administrative Law Judge. This
case was heard before me in Chicago, Illinois, on June 12–
14, 1995, pursuant to a charge filed by Barbara Zimmerman
on September 13, 1994, and amended on May 17, 1995,
against Respondent Louis A. Weiss Memorial Hospital; and
a complaint issued on November 15, 1994. The complaint al-
leges that the Respondent violated Section 8(a)(1) of the Na-
tional Labor Relations Act (the Act) by promulgating and
maintaining a rule which forbids employees to discuss union-
related matters with other employees, and by threatening em-
ployees that other employees were selected for discharge be-
cause of their union activities; and violated Section 8(a)(1)
and (3) of the Act by permanently laying off employee Bar-
bara Zimmerman because of her activity in support of the
Warehouse, Mail Order, Office Technical and Professional
Employees Union, Local 743, International Brotherhood of
Teamsters, AFL–CIO (the Union).
On the basis of the entire record, including the demeanor
of the witnesses, and after due consideration of the
posthearing briefs filed by counsel for the General Counsel
(the General Counsel) and the Respondent, I make the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a nonprofit corporation with an office
and place of business in Chicago, Illinois, where it operates
a hospital providing inpatient and outpatient medical care.
During the year preceding the issuance of the complaint, the
Respondent derived gross revenues in excess of $250,000,
and purchased and received at its Chicago, Illinois facility
goods valued in excess of $50,000 directly from points lo-
cated outside Illinois. I find that, as the Respondent admits,
it is engaged in commerce within the meaning of the Act,
and that exercise of jurisdiction over its operations will effec-
tuate the policies of the Act.
II. THE UNION’S STATUS
The Union is a labor organization within the meaning of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background; Alleged Interference, Restraint,
and Coercion
1. Events before the May 1994 representation election;
alleged unlawful statements by Supervisor Jim Mitchell
about May 7, 1994
Barbara Zimmerman was in the Respondent’s employ be-
tween July 1970 and August 31, 1994. Although in Novem-
ber 1993 her job title changed from ‘‘diet assistant’’ to ‘‘diet
technician’’ and she received a pay increase, her job duties
did not change.
On November 21, 1991, the Union filed a representation
petition seeking a unit of about 175 service and maintenance
employees on the Respondent’s staff. On May 1, 1992, the
Regional Director directed an election in a unit larger than
that sought by the Union. By letter dated May 21, 1992, the
Respondent was advised that the Union had withdrawn its
petition.
On an undisclosed date about late 1991 or early 1992, the
Union was certified as the bargaining representative of a unit
of 16 or 17 plant operations and maintenance employees.
After about 18 months of unsuccessful negotiations on a con-
tract, the Union walked away.
About the fall of 1993, Zimmerman and four or five other
dietary employees engaged in a discussion, in the employee
cafeteria, about when and if the Union was coming back.
During this discussion, Zimmerman offered to telephone the
Union and ask about this matter. When she did so, Union
Representative Cassandra Davis said that the Union would
come back if one of the Respondent’s employees asked it to.
Two days later, Davis met with Zimmerman in the hospital
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947LOUIS A. WEISS MEMORIAL HOSPITAL
1 This finding is based on Zimmerman’s testimony, which for de-
meanor reasons I credit over Smith’s testimony that she saw Zim-
merman passing out union cards in the kitchen during working
hours, and said to her, ‘‘[W]ill you please do it during your break
time because they are working.’’ Smith went on to testify that there-
after, Zimmerman refrained from passing out union cards while the
employees were working.
2 This letter was not received into evidence to show the truth of
the contents.
lobby. Davis gave Zimmerman a number of blank union au-
thorization cards, and told her to distribute them among her
fellow employees on her own time and not to take away
from her work or her responsibilities. During the next 2
weeks, Zimmerman distributed about 55 blank cards among
her fellow employees, and received about 60 signed cards,
some of them from employees who had been directly solic-
ited by Davis during a meeting arranged by Zimmerman.
Then, Zimmerman gave Davis the signed authorization cards.
During the period when Zimmerman was distributing union
authorization cards, she was told by Food Service Supervisor
Fannie Smith (admittedly an agent of and statutory super-
visor for the Respondent) that she had heard rumors that
Zimmerman had union cards and that she had better be care-
ful.1
On dates not clear in the record, but inferentially about
early April 1994, the Union filed a representation petition
seeking a unit of the Respondent’s service, maintenance, and
business office clerical employees, and executed with the Re-
spondent a stipulation for a consent election in that unit. Be-
tween the fall of 1993 and the representation election on
May 12, 1994, Zimmerman attended about 15 union meet-
ings (where attendance varied between 10 and 30), and re-
ported about them to a number of her fellow employees.
Also, during the 2-month period before the election, she dis-
tributed to her fellow employees about 12 red, white, and
blue oval union decals about 4 inches high and about 5
inches wide, kept on her desk a mug with union insignia, and
hung over her desk a shiny white plastic union button about
6 inches in diameter, with red and blue printing. Before the
election, nobody asked her to remove the mug or the union
button from her desk.
Carol House, who is the Respondent’s vice president sen-
ior executive for support services, credibly testified that the
University of Chicago Hospital (the UCH) is an alliance of
which the Respondent is a part; but that the Respondent is
a separate corporation from the UCH, must pay the Respond-
ent’s salaries and other expenses from the Respondent’s own
revenues, and ‘‘need[s] to prove that we are worthy of that
affiliation in the sense that we have to be able to sustain our
sales and our own existence.’’ On April 20, 1994, Zimmer-
man composed, and during the next 2 days gave to about 12
of her coworkers, an anonymous typewritten letter (signed
merely ‘‘A very concerned coworker’’) which stated that
management had been telling the employees that a union was
not necessary, but that the unionized employees at hospitals
at least allegedly affiliated with the Respondent (namely, the
UCH and its branches) had given their employer a ‘‘world
renown [sic] reputation.’’ The letter further said, ‘‘All we
want here at Weiss is to be treated the same as our cowork-
ers at the other branches. We are all doing the same job and
responsibilities . . . why must we keep begging to be treated
equal to our coworkers?’’2 About May 1, Zimmerman tele-
phoned the UCH and asked what the Respondent’s relation-
ship was to the University of Chicago. She received the reply
that the Respondent was one of the UCH hospitals. She
asked who Dean Harrison was at the Respondent. She was
told that he was the Respondent’s president, and that Ralph
Muller was president over all the hospitals. Zimmerman said
that the Respondent had hired a new executive officer. She
was told by the person on the telephone that he did not know
whether this new executive would be Harrison’s equal or su-
pervisor at the Respondent.
About May 7, a meeting attended by about 15 employees
(including Zimmerman) and Jonathan Kirk (the Respondent’s
operations manager, food and nutrition services, who is ad-
mittedly an agent of and supervisor for the Respondent) was
conducted by Robert True, who is the Respondent’s director
of support services and is admittedly an agent of and super-
visor for the Respondent. Giving each employee a key to
what looked like a pirate’s treasure chest filled with fake
money, he said that the Union was only there to take all of
the employees’ money, and that they held the key to the
chest. In addition, he lit some ‘‘trick matches’’ and said that
by joining the Union, the employees were just letting their
money go up in smoke. True said that the Union wanted a
lot of money. Zimmerman asked what was a lot of money.
He said $12 a month. Zimmerman then asked how many em-
ployees in the room blew that amount of money a week or
a month on lottery tickets ‘‘or whatever and we don’t know
what we have done with our money.’’ Zimmerman asked
what the Respondent’s connection was with the UCH. True
said that both institutions were hospitals, but that there was
really no connection. Zimmerman asked whether there had
been any unions at the UCH, and explained that she had
heard there had been unions there for many years, the em-
ployees had not gone on strike or had any problems, and
they had many benefits. She said that the employees of the
Respondent merely wanted the same benefits and treatment
that the employees had at the UCH. She asked, ‘‘[W]ho
Dean Harrison was to the University of Chicago Hospital.’’
True said that Dean Harrison was in charge at the Respond-
ent’s hospital and there was no relationship to the UCH.
Zimmerman said that a few days earlier, she had called the
UCH and asked who Dean Harrison was, and that she had
been told that Harrison was president at the Respondent’s
hospital, but that Ralph Muller was in charge of the Univer-
sity of Chicago Hospitals, and that the Respondent’s hospital
did indeed belong to the UCH. True said that McDonald’s
on Foster was different from McDonald’s on Lawrence. Zim-
merman said that problems with McDonald’s could be cor-
rected by going to the corporate office and getting them cor-
rected, and asked whether the Respondent’s employees were
supposed to go to the UCH for correction. True reddened,
and turned his back to Zimmerman.
A letter to the Respondent’s employees dated April 26,
1994 (inferentially, after the meeting just described), from
‘‘Dean M. Harrison/President and Chief Executive Officer
Re: The Weiss/UCH’’ stated, ‘‘[A]mong other things, that
the Respondent and UCH were two separate corporations
with primary service areas which do not overlap.’’ The letter
went on to say:
UCH and Weiss offer significantly different services.
UCH is a 659-bed academic medical center which treats
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948 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 My findings as to this Zimmerman-Mitchell conversation are
based on her testimony. For demeanor reasons, I do not credit his
testimony that he did not hit her on the back, that he did not tell
her that she must be really annoyed about the message he sent her,
and that their contact consisted merely of a harsh-voiced reproach
by Zimmerman for his having gone to Schwartz, to which he reacted
by just walking away.
4 The letters were reproduced on letterhead stationery which at
least arguably identifies the Respondent as one of ‘‘The University
of Chicago Hospitals.’’
5 My findings as to this conversation are based on Zimmerman’s
testimony. For demeanor reasons, I do not credit Smith’s denial.
the most difficult and complex cases. Patients come to
UCH from around the world because they are unique
in providing such high-intensity care. As a teaching
hospital, UCH trains over 600 residents and fellows
every year and conducts basic science research. Weiss,
on the other hand, is a 225-bed community hospital. It
is important for Weiss to be part of the UCH system,
especially as the nation moves forward with health care
reform, because we gain some significant advantages.
We [complement] each other as part of a health care
system, but we are not the same corporation.
Finally, because the differences—in corporate struc-
ture, geographic diversity, intensity of service and vol-
ume—between UCH and Weiss are so great, Weiss and
UCH have significantly different charge and expense
structures. When we measure the success of our Hos-
pital or calculate the market average for compensation,
we look to hospitals comparable in size, location and
the type of services provided. Grant, Swedish Covenant,
St. Joseph’s and Ravenswood are comparable to Weiss.
UCH, on the other hand, is appropriately compared
with other large academic medical centers like North-
western or Rush-Presbyterian-St. Lukes. We are con-
fident that our compensation and benefit plans compare
favorably to those of our real competitors.
We are proud to be a community-based teaching
hospital, serving the northside, effectively competing in
our particular market and a part of the UCH health sys-
tem.
About May 7, Executive Chef Jim Mitchell (admittedly an
agent of and a supervisor for the Respondent) saw Zimmer-
man standing near his departmental bulletin board. Imme-
diately before seeing her there, he had seen that the bulletin
board bore only his weekly menus and the hospital news let-
ter. Immediately after her departure, he saw that a union flier
was also posted there. He sought her out and told her that
the bulletin board was strictly for the hospital newsletter and
his menus and nothing else; she did not reply. Immediately
thereafter, Mitchell approached Administrative Dietician
Carol Schwartz, Zimmerman’s immediate superior, who is
admittedly an agent of and supervisor for the Respondent.
Mitchell said that Zimmerman had posted ‘‘a union notice or
something’’ on the departmental bulletin board, and that the
only things to be posted there were his menus and the hos-
pital news letter. He asked Schwartz to counsel Zimmerman
about the matter. Later that same day, Schwartz told Zim-
merman that Schwartz had a message for Zimmerman from
Mitchell. Zimmerman asked what the message was, and
Schwartz stated that Mitchell did not want Zimmerman to
put any more union ‘‘stuff’’ on ‘‘his’’ bulletin board. Zim-
merman replied that she did not know what Mitchell was
talking about. Still later that day, while Zimmerman was en-
gaging in a work-related conversation on the telephone in the
diet office, Mitchell came into the diet office, hit her on her
back, and (using a scatological expression) asked if she was
annoyed because of his message. She told him that she
would have to talk with him later, because she was on the
telephone. After she got off the telephone, she approached
him and told him never to hit or touch her again. Then, she
asked him why he thought that she was the one that ‘‘put
the stuff up on his bulletin board.’’ He said that he knew that
she was ‘‘into this union stuff’’ and not to put it on ‘‘his’’
bulletin board. She said that she did not know what he was
talking about, because she had not seen it or done it and did
not know who had done it. He told her to stay away from
‘‘his’’ cooks, not to talk to ‘‘his cooks’’ about the ‘‘union
stuff,’’ and not to bring any of that ‘‘union stuff’’ to them.
She said that she had known them longer and better than
Mitchell had. Mitchell said that he and Zimmerman had had
a good working rapport, up until she got involved with the
Union, which he described in scatological terms.3
The May 1994 edition of a newsletter which the Respond-
ent periodically distributed to its employees ‘‘encouraged’’
the eligible employees to vote in the forthcoming representa-
tion election. The newsletter went on to say:
Administration continues to believe it can be most ef-
fective if it works directly with you and not through a
third party. Union contracts vary a great deal depending
on the size, location, type, and economic health of an
institution. [The Union] cannot guarantee anything ex-
cept dues collection and being your sole representative.
The polls for the representation election conducted on May
12 were open between 6 and 9 a.m., and between 2:30 and
5:30 p.m. The Union had two observers during each ses-
sion—Zimmerman during both sessions, and two other em-
ployees during one each. Between these two sessions, Zim-
merman performed her regular job duties. While she was
doing so, about 15 different employees brought her various
copies of a letter which (they told her) had been given to
them early that morning. Although identical in content, each
of the letters began ‘‘Dear’’ followed by the employee re-
cipient’s first name. The letters urged the employees to vote
against the Union, and were signed by ‘‘Dean M.
Harrison/President and Chief Executive Officer.’’4 When the
first employee gave her copy of the letter to Zimmerman, she
asked Supervisor Smith where Zimmerman’s letter was.
Smith replied, ‘‘Well, we know where you stand with the
Union, so what does it matter?’’5 Zimmerman never did re-
ceive such a letter. She had been acting as an observer in
the polling area (the auditorium) when the letters were dis-
tributed; Kirk testified that this was why she never received
a letter, and that to his ‘‘recollection’’ the letter with her
name on it was taken back to ‘‘human resources,’’ even
though her desk was physically located in the department.
2. Events after the May 1994 representation election
The Union lost the May 12 election by a vote of 256 to
151, with 17 nondeterminative challenges. So far as the
record shows, the Union filed no objections to the election.
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949LOUIS A. WEISS MEMORIAL HOSPITAL
6 This finding is based on her testimony. Kirk testified that he did
not remember one way or the other asking her to remove her union
button and mug, but that ‘‘it remained until the end of her employ-
ment.’’ To the extent that their testimony is inconsistent, for de-
meanor reasons I credit her.
7 House’s letter was typed on the same style of letterhead station-
ery described supra at fn. 4.
8 Zimmerman testified that Mitchell had ‘‘bothered’’ her for about
a year, regarding the Union and because ‘‘he didn’t appreciate me
coming over and helping the cooks out and being around the cook’s
area.’’ Before this conversation with Kirk, she had complained to a
number of fellow employees about Mitchell’s conduct.
9 The testimony of Supervisors Smith and Davis that they never
complained to Mitchell about Zimmerman is, of course, consistent
with Mitchell’s testimony that he never received, or told Zimmerman
about, any such complaints. However, if credited, this testimony by
Smith and Davis is also consistent with the inference that in order
to exert pressure on Zimmerman, he was using untrue assertions that
other supervisors had complained to him about her.
10 My finding that he told her this is based on her testimony. For
demeanor reasons, I do not credit Kirk’s denial that he told her she
was laid off for lack of work and he had nothing to do with it. Also,
for demeanor reasons, I do not credit his testimony that she asked
him what was new; he said that they needed to talk; she asked what
he meant; he said that ‘‘since we are talking about it, your position
has been eliminated’’ and that ‘‘we needed to go to Ruth Descher’’
Continued
However, on May 13, 1994, the Union filed a charge against
the Respondent, alleging that about May 12, the Respondent
had ‘‘interfered with, restrained, or coerced employees in the
exercise of rights guaranteed in Section 7.’’ Thereafter, Zim-
merman paid a visit (unaccompanied by any other employ-
ees) to the Board’s Regional Office, and gave a statement.
On June 13, 1994, the Regional Office dismissed this charge
because of ‘‘insufficient evidence.’’ So far as the record
shows, the dismissal was never appealed. Also, after the
election, Supervisor Kirk asked Zimmerman to remove her
union mug from her desk. She did so, and also removed the
union button which she had hanging above her desk.6
Meanwhile, on May 13, 1994, Zimmerman sent a letter to
Ralph Muller. ‘‘University of Chicago Hospital/5841 S.
Maryland Ave./Chicago’’ (the Respondent’s address is 4646
N. Marine Drive, Chicago). The letter stated on its face that
a courtesy copy was being sent to the Union. The letter stat-
ed, among other things, that Zimmerman believed she and
others had received insufficient and inaccurate information
from Respondent Weiss in connection with the union cam-
paign, stated that she had been told Muller was Harrison’s
supervisor at Weiss, and asked Muller to explain ‘‘who you
are and what you are to me and Weiss.’’ By letter to Zim-
merman dated June 3, 1994, with courtesy copies to Harrison
and Muller, House stated that Harrison had forwarded to her
a letter which Zimmerman had sent to Muller. The letter de-
nied as to the Respondent’s antiunion campaign certain fac-
tual allegations contained in the letter, but did not discuss
any relationship between the Respondent and UCH.7
On a Wednesday in late June 1994, Mitchell approached
Zimmerman while she was in the diet office, and told her to
leave the office and talk to him. Zimmerman said that if he
had to talk to her, he would have to talk to her in the diet
office. Mitchell said that he was tired of ‘‘his supervisors’’
coming and complaining to him about Zimmerman and the
Union. She asked who ‘‘his supervisors’’ were. Mitchell
said, ‘‘Well, I am just here to talk about it.’’ Zimmerman
again said, ‘‘I want to know who your supervisors are.’’
Mitchell named Relief Supervisor Ceile Davis (not to be con-
fused with Union Representative Cassandra Davis) and
Smith, neither of whom reports to Mitchell. Zimmerman said
that she and Mitchell should get Kirk and get the matter
straightened out, because she had no idea what anybody was
talking about. Then, having ascertained by telephone that
Kirk, Smith, and Ceile Davis were all off that day, Zimmer-
man left notes on Smith’s and Davis’ timecards stating that
Zimmerman needed to talk to them.
On the following Saturday, Smith and Davis told Zimmer-
man that they had received the message that Zimmerman was
looking for them in regards to Mitchell. Zimmerman said
that she did not understand what was going on. Smith and
Davis said that they did not understand what was going on
either, because they had not discussed anything with Mitchell
concerning Zimmerman and the Union and did not know
why he was dragging them into the conversation.
Later that Saturday, Kirk telephoned Zimmerman, told her
that he had received a telephone call from Davis or Smith
about the situation with Mitchell, and asked Zimmerman to
explain what had happened. Zimmerman said that Mitchell
was ‘‘demanding’’ that she exit the diet office, and that
Mitchell had told her that he was tired of his supervisors’
complaining to him about her and the Union. She asked Kirk
whom Mitchell supervised. Kirk said that Mitchell was only
over the cooks. Zimmerman said that she was afraid of
Mitchell and did not want to deal with him,8 and asked Kirk
to come to the hospital and handle the situation; Kirk said
that because of a family emergency, he could not go to the
hospital. Zimmerman requested that any dealings between
her and Mitchell go through either Kirk or Schwartz. Kirk
agreed that this arrangement would be followed. Kirk told
her that if she felt scared or threatened, she should not hesi-
tate to call ‘‘security.’’ She asked him to take care of the sit-
uation on the following Monday; he said that he would. Zim-
merman never again discussed the matter with Kirk, or com-
plained to him about Mitchell.
My findings as to the diet-office conversation between
Zimmerman and Mitchell are based on her testimony, which
is indirectly corroborated by the testimony of Smith and
Davis (as well as Zimmerman) about the notes Zimmerman
left on their timecards and the ensuing conversations—inci-
dents otherwise unexplained in the record. For these and de-
meanor reasons, I do not credit Mitchell’s denial that such
a conversation took place.9
My findings as to the Zimmerman-Kirk conversation are
based on a composite of credible parts of their testimony.
Because Kirk admittedly had a very poor recollection of this
conversation, I credit her testimony that he called her, rather
than his testimony that she called him. However, I regard
this issue as immaterial.
B. Zimmerman’s Termination; Alleged Additional
Interference, Restraint, and Coercion
Zimmerman was on vacation between August 29 and Sep-
tember 11, 1994. When she reported to work at 5 or 5:30
a.m. on September 12, Kirk told her that he hated to tell her
this but that there was a lack of work, that there had been
a cutback in staff, that her position had been eliminated, and
that he had had nothing to do with it.10 When Zimmerman
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950 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
in ‘‘human resources’’; and Zimmerman chose to talk to Descher
later that day.
11 This finding is based on Zimmerman’s testimony. For demeanor
reasons, I do not credit Mitchell’s denial.
12 At the time of the hearing, Ruffing was no longer working for
the Respondent, and he did not testify.
asked about receiving her vacation pay, he told her
that she should speak to Ruth Descher, whom Kirk
testimonially described as ‘‘our human resource con-
tact.’’ Kirk said that Zimmerman could either work
until the Human Resources Department opened up at
9 a.m., or leave and come back later. Zimmerman
elected to leave. When she went to Descher later that
day, Descher had her sign various termination papers
and gave her the following letter, dated August 31 and
over House’s signature:
Dear Colleague:
Louis A. Weiss Memorial Hospital recently made the
decision to reduce our work force. The net result is that
some of our valued employees will be seeking new em-
ployment opportunities.
Barbara Zimmerman . . . was employed by Weiss
between 07/13/70 and 08/31/94, most recently as a Diet
Technician.
Should your organization have employment opportu-
nities in a related area we hope you will consider this
applicant.
Descher told Zimmerman to make 50 copies of this letter, so
that if she applied for a new job she could use one of them
instead of having her prospective employer call the hospital.
On October 4, Zimmerman visited the hospital to pick up
her checks. After having lunch with some of the dietary staff,
she walked into the kitchen to see some other employees
whom she had not seen in the dining room. She was pre-
ceded into the kitchen by Mitchell, who remarked, ‘‘Oh, is
Barb here to sell that union [scatological term] again?’’11
Then, he saw her talking to cook Johnny Chaney. Mitchell
told Chaney that he had work to do, and asked Zimmerman
to leave the kitchen. After repeated urging, she did so.
The lunch period of food service employees, some of
whom serve lunch to the patients, is scheduled prior to 11:30
a.m., when lunch service for the patients begins. During the
period which included September 12, 1994, employees
Marilyn Thomas and Joe Ruffing, and Supervisors Davis and
Smith, frequently ate lunch together in the hospital dining
room. Thomas testified to the following effect: On Septem-
ber 12, she, Ruffing, Davis, and Smith ate lunch together.
While they were all seated at the table, Smith told Davis that
one of the reasons why Zimmerman was laid off was her in-
volvement with the Union. The conversation at the table
lasted at least 15 minutes, but this was the only statement
Thomas heard before leaving the group to resume her duties,
and Zimmerman had not been discussed before Smith made
this remark.
Because the remarks testified to by Thomas could not have
consumed 15 minutes, because Thomas’ testimony fails to
explain why the subject of Zimmerman’s termination came
up at all, and after considering the witnesses’ demeanor, I ac-
cept the testimony of Davis and Smith that this conversation
never took place.12
C. Evidence Regarding the Respondent’s Explanation
for Zimmerman’s Termination
1. Introduction
Respondent contends that Zimmerman’s termination was
part of a hospitalwide reduction in force effected for eco-
nomic reasons, and that she was selected for termination be-
cause of her relatively low score on reduction-in-force (RIF)
ratings which Kirk prepared for employees in her job classi-
fication (diet technician). Although the General Counsel’s
posthearing brief states (p. 18) that she ‘‘does not dispute the
the Respondent’s assertion that the hospital-wide reduction in
force was essential to its fiscal survival,’’ the General Coun-
sel claims that Zimmerman’s union activity was at least one
of the reasons why she was included in that reduction.
2. Consulting firm’s efficiency recommendations; the
early retirement incentive program
In early July 1994, the Arthur Andersen consulting firm,
which the Respondent had engaged in 1994 to make sugges-
tions about improvements in efficiency, advised the Respond-
ent that a hospital of its size should be staffed by about 815
full-time equivalents (FTEs), whereas the Respondent cur-
rently employed 974 FTEs. By letter to the Respondent’s
staff dated July 15, 1994, the Respondent stated, in part,
‘‘[W]e have offered an early retirement incentive program to
. . . employees who have at least five years of vested serv-
ice with the Hospital and are 55 years of age or over. The
eligible employees received their benefit packets today and
will have 45 days [that is, until August 29, 1994] to consider
the offer.’’ House credibly testified that the Respondent de-
cided to offer this ‘‘enhanced’’ early retirement incentive
program in order ‘‘to minimize the impact of the right sizing
and therefore the number of people that we would have to
lay off for the right sizing . . . we had a target number in
mind . . . that we wanted to reduce by. So obviously . . .
if people took early retirement, we could reduce that number
that we would have to eliminate through a right sizing.’’
About 116 employees received this offer. Thirty-two em-
ployees (one of whom was replaced) took advantage of this
offer. So far as the record shows, this offer was not available
to any of the Respondent’s diet technicians, including Zim-
merman.
3. Forms filled out in connection with Zimmerman
A memorandum captioned ‘‘Rightsizing Process’’ and
dated August 9, 1994, from House to ‘‘Corporate Staff,’’
which did not include True or Kirk but did include Beverly
Tuck (Respondent’s senior executive for support services),
described the process to be used in determining the identity
of the employees to be laid off. House credibly testified that
at the time this memorandum was issued, the Respondent
was not positive about how many people would have to be
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951LOUIS A. WEISS MEMORIAL HOSPITAL
13 The ratings are as follows:
14 The RIF rating forms are different from the PPA forms, which
call for ratings as to job functions. A ‘‘guest relations’’ page on the
PPA forms is separate from the job functions page and calls for a
check before ‘‘Exceeds expectations,’’ ‘‘Meets expectations,’’ or
‘‘Fails to meet expectations’’; a check mark before this last entry
will cause the delay of a merit increase.
15 The ‘‘Diet Technician’’ job description effective in June 1994
required a high school diploma, and ‘‘Associate Degree in Nutrition
highly recommended.’’ Kirk testified in June 1995 that ‘‘the degree’’
(perhaps referring to a 4-year degree) is not a requirement for diet
technicians. the Respondent’s job description for diet technician ef-
fective in May 1995 lists an ‘‘Associate Degree in Nutrition’’ as one
of the ‘‘Minimum Entry Qualifications.’’ However, Kirk testified in
June 1995 that the diet technicians were performing very few tasks
‘‘up’’ the line from those which they had performed before the Au-
gust 1994 terminations.
16 On Zimmerman’s and Hargrove’s rating forms, Kirk had noted,
‘‘Picks up new skills & instructions easily.’’ On Sueno’s rating
forms, he noted, ‘‘Good ability to learn new skills, positive to
change.’’
laid off, partly because the Respondent did not yet know
how many of the 116 people who had been offered early re-
tirement would accept the offer, and partly because the Re-
spondent did not yet know where part-time and full-time em-
ployees would be slotted in the rankings and ratings lists
(which lists are explained, infra). Attached to the memoran-
dum was a packet of forms which ‘‘Managers’’ were to use
in preparing RIF ratings, as well as rankings, for each of the
employees under them. The packet forwarded to Kirk in
early August 1994 (with a cover letter dated August 8) for
the purpose of preparing an RIF rating for each of the em-
ployees under him, included as to the three diet technicians
the four most recent Performance Planning and Appraisal
(PPA) ratings for Corazon Sueno (referred to in the record
as Cora), and the three most recent PPA ratings for Zimmer-
man and Carolyn Hargrove. The two most recent of these
PPA ratings (namely, the most recent PPA ratings for Har-
grove and Sueno) had been prepared by Schwartz and ap-
proved by Kirk and (perhaps) True; the others had been pre-
pared by her predecessor as administrative dietician. Zimmer-
man’s PPA ratings were mostly higher than those of Har-
grove and Sueno.13
Employee
PPA
Rating
Issued
in 1991
PPA
Rating
Issued
in 1992
PPA
Rating
Issued
in
1993
PPA
Rating
Issued
in 1994
Hargrove — 60 58.75 72.5
Sueno 85 66.25 71.25 86.25
Zimmerman 98.75 60 73.75 —
The RIF rating forms to be filled out called for a separate
rating in each of six categories—quality of work, quantity of
work, guest relations, job skills, attendance, and ‘‘job related
experience/education.’’ The rating instructions stated, in part,
that the PPAs ‘‘should be considered, but should not be the
sole consideration’’ (emphasis in original) because the PPA
ratings ‘‘were conducted with the employee’s continued em-
ployment in mind; not termination’’; because there had been
no need to compare similarly situated employees; and be-
cause ‘‘New ratings are necessary to evaluate how employ-
ees perform any identified new, as opposed to former, du-
ties.’’14 The RIF rating forms set forth a mathematical for-
mula for rating attendance, based on the total number of
‘‘occurrences within twelve months.’’ Kirk testified that the
ratings for the three diet technicians, which bear the date of
August 14 after his signature, were prepared by him without
input from anyone else, and that at the time he prepared
these ratings, he did not know how many diet technicians
would be laid off. The documents received in evidence as the
RIF ratings produced by Kirk show the following:
ZIMMER-
MAN
HAR-
GROVE SUENO
Quality of Work 8 6 6
Quantity of Work 8 8 8
Guest Relations 4 8 8
Job Skills 8 8 6
Attendance 4 2 10
Job-Related
Experience/Education 2 2 3
Totals 34 34 41
Kirk testified that as to the three diet technicians, he was
closely familiar with their quality of work, quantity of work,
job skills, and the categories set forth on the RIF rating
forms. As to the category ‘‘Quality of work,’’ Kirk gave
Zimmerman a higher rating than the other two diet techni-
cians ‘‘primarily’’ (he testified) because her work ‘‘was con-
sistent and accurate, more than the other two individuals.’’
As to the category ‘‘Job-related experience/education,’’ Kirk
gave a higher rating (3) to Sueno than to Zimmerman and
Hargrove (2). Kirk noted on the respective forms that Sueno
was a ‘‘Philippine’s [sic] Registered Dietician w/College De-
gree’’; and that Zimmerman and Hargrove had ‘‘No formal
training/education.’’ Although Zimmerman does not have a
dietetics degree of any kind, Supervisor Smith credibly testi-
fied that Zimmerman had obtained additional training in the
dietary field. There is no evidence that Kirk tried to inves-
tigate Zimmerman’s (or Hargrove’s) education before rating
them, although the August 9 ‘‘Rightsizing Process’’ memo-
randum had stated (emphasis in original), ‘‘It is important to
determine the educational background of all employees be-
fore rating any employee on education. If this information is
unavailable for one employee, it should not be used for any
employee you are evaluating.’’15 Kirk testified that ‘‘[b]ased
on formalized education in the field, [Sueno] scored higher
[than Hargrove and Zimmerman] because [Sueno] has a four
year degree in the area of dietetics.’’ He further testified that
as to the ‘‘Job-related experience/education’’ factor, ‘‘we
only looked at the formal training in the field of nutrition or
dietetics [because what] we needed on the staff . . . is some-
one who can work multi-faceted. Someone who has more
formal education can do more things as opposed to someone
who doesn’t, especially in the clinical aspects.’’ When the
General Counsel pointed out that Kirk had rated Sueno lower
than either Zimmerman or Hargrove as to the factor ‘‘Job
skills,’’16 and asked what Sueno would be able to do on the
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952 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
17 The difference between ‘‘ratings’’ and ‘‘rankings’’ is discussed
infra.
On direct examination, by company counsel, Kirk testified as fol-
lows:
Q. Did [Schwartz] review these ratings?
A. Yes she did.
Q. What did she say?
A. She concurred with our ranking of the individuals.
Q. After that, where were these sent?
A. To human resources.
Q. And that would be, the ranking would be the Respondent’s
Exhibit 15 [Zimmerman’s RIF rating sheet], correct?
A. Yes.
. . . .
Q. Did you take any other factors in the consideration, other
than what you testified to, in making these evaluations or
rankings?
A. The evaluation form was the sole consideration.
18 This ‘‘ranking’’ document also bears, with an August 23 date,
a semilegible signature which may be the signature of Ruth Descher,
a member of the Respondent’s ‘‘human resources’’ department who
did not testify.
19 As discussed infra, she dated this conference as Thursday, Au-
gust 4; Friday, August 5; Monday, August 8, or Tuesday, August 9.
job that was a requirement of the job because of her degree,
Kirk replied, ‘‘She would be able to analyze different clinical
issues because of training more than someone who did not
have the training [such as specific] doctor requirements on
diets. I am not a clinician so I can’t tell you exactly a spe-
cific instance.’’ The August 9 instruction sheet directed that
the ratings and rankings, including the second-level review,
be completed by Friday, August 12. True reviewed the diet
technicians’ RIF ratings with Kirk, who testified that True
did not change the numbers; although still part of the Re-
spondent’s management at the time of the hearing, True did
not testify. Both Kirk’s and True’s signatures on the diet
technicians’ ratings are dated Sunday, August 14, 1994. The
date of August 16 appears after True’s signature on the rank-
ing sheet which includes their names.
4. The decision by August 23 to terminate two diet
technicians, including Zimmerman
As previously noted, employees who had been offered
early retirement had until August 29, 1994, to accept such
an offer. House credibly testified that until the Respondent
had the results of the early retirement incentive program, no
determination could be made as to how many employees
would be lost in each specific category. On an undisclosed
date which was a weekday between Wednesday, August 17,
and Tuesday, August 23, Kirk told Administrative Dietician
Carol Schwartz, an admitted supervisor who was his imme-
diate subordinate, to meet him that afternoon in True’s of-
fice. During this conference, True said that for budgetary rea-
sons the Respondent was going to have a big layoff, that
each employee had been evaluated according to certain cri-
teria, that Sueno (the diet technician with the best score)
would be kept, and that the other two (Zimmerman and Har-
grove) would be lost. Schwartz was shown the RIF ratings
of the three diet technicians which Kirk had prepared and he
and True had signed; she expressed agreement with these rat-
ings. Kirk testified, in effect, that after Schwartz had re-
viewed these ratings, they were sent to ‘‘human re-
sources.’’17 For reasons unexplained in the record, nobody’s
signature appears in the blanks calling for the approval of
‘‘human resources’’ on Hargrove’s or Sueno’s RIF rating
sheets. A document captioned ‘‘Ranking,’’ and listing Sueno,
Hargrove, and Zimmerman in that order but with the notation
that Hargrove and Zimmerman were ‘‘tied—34’’ (their total
ratings scores), contains the notations that it was prepared by
True on August 16, received the approval of Beverly Tuck
as ‘‘senior executive’’ on August 23, and received the ap-
proval of House as ‘‘human resources’’ on August 29.18
House credibly testified that after completing the ranking of
employees, management did not yet know exactly how many
employees would be lost in each specific category, because
‘‘that determination had not been made yet . . . because we
didn’t have the results of the early retirement incentive pro-
gram.’’ Also, she credibly testified that by offering some
full-time employees part-time jobs, and by failing to fill
some vacancies, the Respondent reduced the number of full-
time employees who would be laid off.
Zimmerman’s termination letter is dated August 31, 1994,
and gives this as her termination date. Hargrove was termi-
nated during the first few days of September. House testified
that if the Respondent had terminated only one diet techni-
cian, Zimmerman would have been retained because her RIF
rating score equaled Hargrove’s and Zimmerman was senior
to Hargrove. Sueno, with the highest RIF rating, was the
only retained employee with that job classification.
When asked who decided that two diet technicians would
be included in the terminations, House testified that she did
not decide and did not know who decided this, but that she
assumed this decision was made by Kirk, True, and/or Tuck.
Kirk testified, in effect, that the decision was not made by
him (see p. 454, LL. 18–23 of the transcript). True and Tuck
did not testify, nor was their absence explained. Taken to-
gether, the testimony of Schwartz and Kirk indicates the ex-
istence of certain facts which might reasonably lead to a de-
termination to terminate diet technicians rather than dieti-
cians or food service workers—namely, that most or all of
the functions performed by technicians could be performed
by dieticians or food service workers, that food service work-
ers are paid substantially less than technicians, and that the
Respondent had to retain enough dieticians to perform work
which must be performed by a licensed dietician. However,
nobody testified that these or any other specified reasons mo-
tivated the decision to diminish the number of technicians,
or to terminate two rather than only the technician (Har-
grove) who was lowest on the ‘‘ranking’’ list.
My findings as to the substance of the Schwartz-Kirk-True
conference are based on Schwartz’ uncontradicted testimony.
My findings as to the date are based on: (1) Schwartz’ testi-
mony that during this conference, she was shown Zimmer-
man’s RIF rating sheet (R. Exh. 15), on which Kirk and True
had dated their signatures Sunday, August 14; (2) testimony
by Schwartz which is susceptible to the inference that during
this conference she was shown the diet technicians’ ‘‘rank-
ing’’ sheet, which True signed with an August 16 notation
(R. Exh. 18); (3) Kirk’s testimony that he showed Schwartz
the ranking and/or the rating sheets after True had reviewed
them (see supra, fn. 17); (4) the evidence that Schwartz was
not ordinarily scheduled to work on weekends;19 (5) House’s
testimony that after being signed by True, the forms were re-
viewed by Tuck, whose approval of the ranking sheet (R.
Exh. 18) is dated August 23; and (6) Kirk’s testimony that
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953LOUIS A. WEISS MEMORIAL HOSPITAL
20 For reasons not shown by the record, no entry appears after the
blank calling for ‘‘Human resources approval’’ on Hargrove’s or
Sueno’s rating sheets (R. Exhs. 16 and 17). The ranking sheet (R.
Exh. 18) suggest that ‘‘Human resources approval’’ was signed by
Descher on August 23 (see supra, fn. 18) and by House on August
29.
after Schwartz orally approved the rating sheets and perhaps
the ranking sheet, they were sent to ‘‘human resources,’’
whose approval on Zimmerman’s rating sheet is dated Au-
gust 23 (R. Exh. 15).20 I conclude that Schwartz was mis-
taken in dating the conference as August 4, 5, 8, or 9, al-
though such testimony does suggest that the conference oc-
curred early in the August 16–23 time frame. True did not
testify. Kirk was not asked in terms about this conference;
when asked when he first discussed the reductions in his
staff with True at length, Kirk replied, ‘‘That would have
been prior to, somewhere around that, the final receipt of the
ranking.’’ The only filled-out form marked ‘‘ranking’’ in the
record states that it was approved by True on August 16, ap-
proved by Tuck on August 23, and signed by House on Au-
gust 29 (R. Exh. 18); as previously noted, the Respondent
gave August 31 as Zimmerman’s termination date. After tes-
tifying on direct examination about a conversation with Zim-
merman where she described her at least perceived problems
with Mitchell, and accepting company counsel’s suggestion
that this conversation occurred in late June, Kirk testified
(still on direct examination) that it was ‘‘somewhere in this
time frame’’ when he learned that two diet technicians were
going to lose their jobs. Immediately thereafter, when com-
pany counsel asked, ‘‘Sometime perhaps in the middle of or
late August?,’’ Kirk replied, ‘‘[Y]es.’’ In view of the uncer-
tainties and internal inconsistencies in this testimony by Kirk
about dates, I regard it as valueless in fixing either the dates
of these discussions with True about the reductions in staff,
or the date when Kirk learned that two diet technicians were
going to lose their jobs.
5. The Respondent’s postlayoff staff
After the August–September 1994 terminations and at least
until the June 1995 hearing, the Respondent retained only
one employee (Sueno) with the job title of diet technician.
When asked during the June 1995 hearing how the function
was handled without Zimmerman’s presence, Kirk replied,
‘‘Several ways. The administrative dietician [Schwartz] plays
a role in handling those tasks. Dieticians would handle some
of the tasks and food service workers handle some of the
clerical issues.’’ At the end of January 1995, the Respondent
hired Ayashaia (Ann) Gardner and gave her the job classi-
fication of ‘‘Food Service Aide I.’’ At least by April 1995,
she was performing solely diet technicians’ work. In April
1995 and during the first 2 weeks of May 1995 (the last pe-
riod for which her weekly hours are shown by the record),
she averaged about 21 hours per week. Schwartz testified in
mid-June 1995 that Gardner was working about three full
weekend shifts a month. Kirk and Schwartz testified in June
1995 that Gardner had been more active in the diet office re-
cently because Schwartz was getting ready for an inspection
(conducted every 3 years by the Joint Commission for Ac-
creditation), which in September was to extend to the food
and nutrition department; and that when that inspection was
over, Schwartz would resume her duties in that office and
Gardner would return to the kitchen. Schwartz further testi-
fied in mid-June 1995 that employee Elena Grafilo had been
classified as a diet technician until about late February 1994,
had been transferred to a computer project about early Feb-
ruary and reclassified as a computer coordinator about late
February, and on a date which (Schwartz testified) she could
not recall, began to help out in the diet office one full shift
a month and, up to twice a week, between 2 and 3:30 p.m.
‘‘If the census warrants it.’’ In connection with the
‘‘rightsizing,’’ 12 employees were shifted from full-time to
part-time status. So far as the record shows, Zimmerman was
not offered this option.
Kirk testified that before discussing with True the number
of hours involved in reducing Kirk’s department—a discus-
sion which, according to Kirk, took place ‘‘prior to, some-
where around that, the final receipt of the ranking’’ (Zim-
merman’s rating was approved on August 23, her ranking
was dated August 16, and it was approved on August 29),
‘‘the [FTE] target in Kirk’s mind’’ was 8, and that he lost
8 FT’s from his department. He testified that in addition to
losing the two terminated full-time diet technicians, he lost
two early retirement cooks; at least one terminated cafeteria
employee; at least one (probably more than one) terminated
kitchen employee; and four or five terminated part-time em-
ployees. The record fails to show how many FTEs were rep-
resented by the terminated part-time employees, or whether
the terminated part-time employees were among any of the
terminated employees (other than diet technicians) referred to
in the preceding sentence. Company counsel stated in his
oral argument at the close of the hearing that ‘‘12 [of the
terminations and early retirements] came out of the food and
nutrition department’’ headed by Kirk—namely, two cooks,
. . . the two diet technicians and seven or eight I believe it
was came from food services.’’ the Respondent’s answer
avers that ‘‘the restructuring of the Respondent’s Food and
Nutrition Services function . . . resulted in the reduction of
the number of full time employee positions from 49 to 35.’’
More than one of the employees included in the layoff had
30 or more years of service with the Respondent, as com-
pared to Zimmerman’s 24 years.
An August 1994 ‘‘Rightsizing’’ memorandum states that a
total of 126 employees were reduced through the early retire-
ment incentive program and the subsequent reduction in
force; and that additional reductions in budgeted hours for
part-time employees resulted in a total reduction of 129
FTEs.
6. Procedures called for by the ‘‘Rightsizing Process’’
after completion of the RIF ratings
Before being terminated, Zimmerman had been employed
as a diet technician in the ‘‘dietary department,’’ whose job
classifications also included dieticians and food service
workers; the ‘‘dietary department’’ was part of the ‘‘food
service department,’’ whose job classifications also included
cooks, chefs, and tray line workers. At the time of the hear-
ing, in June 1995, there were about 45 persons in the food
service department. The ‘‘Rightsizing Process’’ memorandum
delivered to the managers in early August directed them to
prepare a ‘‘Step 2—Ranking’’ after completing the ‘‘Step
1—Rating’’ process. These instructions stated, in part (em-
phasis in original):
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954 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
21 For example, certain functions must be performed by a licensed
dietician. Accordingly, at least one licensed dietician would have to
be retained even if the RIF ratings of all dieticians were lower than
those of anyone else in the department.
22 Schwartz’ entries on the form state, inter alia, that Zimmerman
told the patient that the only meal choices were the ones on the
printed menu. Schwartz testified, in effect, that Zimmerman failed to
tell the patient about the alternative menu.
Once all the employees have been rated, you must
rank them (#1/highest) in order of those most critical to
the department after the reduction-in-force.
. . . .
Your ranking will be based on:
(1) skills and abilities applicable to departmental
needs going forward
(2) performance as indicated by the rating score,
and
(3) if these are equal, length of hospital service.
The attached ‘‘Ranking’’ form contains blanks for the name
and job title of each employee, but no blank calling for the
employee’s RIF rating, and states, ‘‘Rank order, starting with
those employees whose performance and job skills are most
critical.’’
The instructions went on to say:
A second-level review will be made by Director
and/or Senior Executive. This step will include their re-
view of both the ratings and rankings you developed,
plus the employee’s past performance evaluation scores.
Once the Senior Executive has approved, the ‘‘Affected
Employee List’’ should be created.
Step 4—Layoff List
The Senior Executive will summarize all of their
‘‘Affected Employee Lists’’ into preliminary ‘‘Layoff
List [sic]’’ for each department or job title, whichever
is appropriate.
I infer that at least one purpose of the requirement for a
‘‘Step 2—Ranking’’ was to make sure that the employees to
be retained would be able, as a whole, to perform all of the
functions of the department in question.21 So far as the
record shows, no ‘‘Step 2—Ranking’’ form was ever filled
out which included diet technicians plus other job classifica-
tions. Only the three diet technicians (Zimmerman, Hargrove,
and Sueno) are listed on a ‘‘Ranking’’ form, which was
filled out by True, signed by him with the date August 16,
approved by Beverly Tuck (Respondent’s senior executive
for support services) on August 23, and signed by House on
August 29.
7. Incidents allegedly reflected in the RIF ratings
The job description of diet technician effective before May
1995 includes the requirement: ‘‘Maintains excellent guest
relations. Is considerate and respectful of patient’s needs.’’
Kirk testified that he gave Zimmerman a relatively low rating
on ‘‘Guest Relations’’ because of a patient complaint di-
rected to her. Schwartz credibly testified as follows: On the
morning of March 28, 1994, a patient on a restricted diet
complained to Schwartz that as to the meal served on the
previous day (when Zimmerman was not on duty), the potato
was undercooked, the turkey was too dry, and the sherbet
was melting. The patient went on to say that in her state,
there was a lot of food that she could not tolerate; that she
did not want anything on the menus for the lunch and dinner
to be served that day; that she was not given any alternates;
and that when she started to complain to Zimmerman about
not wanting anything on the menu, Zimmerman was ‘‘flip-
pant,’’ walked out as the patient was talking, and did not
give her an alternative menu sheet. Schwartz got the patient
an ‘‘alternative entree’’ for lunch, and received no more
complaints from her. Later that day, Schwartz stated to Zim-
merman that Schwartz agreed that the patient was a difficult
and very sick lady, but that the diet department personnel
were there for the very purpose of handling situations like
that. Schwartz further told Zimmerman to remember that the
patient is almost always right, and to offer a complainant the
resources that the Respondent had (in this instance, the alter-
native menu list) to try to solve the complaint.
At Kirk’s ‘‘advice,’’ Schwartz prepared, and arranged to
include in Zimmerman’s personnel file, a form captioned
‘‘Record of Disciplinary Action’’ which at least purports to
summarize this incident.22 Notwithstanding Schwartz’ testi-
mony about what she told Zimmerman in connection with
this incident, the form contains, in the paragraph calling for
‘‘Expectation/Warning given at this time,’’ the following un-
derscored entry; ‘‘Further violations of the Hospital policy
against conduct which might embarrass patients/personnel/
visitors could result in further disciplinary action.’’ Schwartz
testified that she documented this incident, and placed the
document in Zimmerman’s file, because this incident ‘‘is a
severe infraction of hospital policy.’’ No check mark appears
before any of the three choices at the top of the form
(‘‘Verbal Warning/Counseling,’’ ‘‘Written Warning,’’ or
‘‘Suspension’’). Although the form calls for a dated signature
by both the employee and the supervisor, the document in
Zimmerman’s file contains neither. Schwartz did not recall
presenting the form to Zimmerman, did not ask her to sign
it, and did not tell her that it was being placed in her person-
nel file. Nor did Kirk suggest that Schwartz take such action.
Schwartz testified that Kirk ‘‘asked if I had discussed it thor-
oughly with her and I had, so it was placed in her file as
a written note . . . it was not placed there as a written warn-
ing.’’ However, Kirk testified that this document ‘‘is a record
of disciplinary action that records the conversation that took
place and what the incident consisted of. This would be
placed in [the] file for two purposes, for further disciplinary
tracks if needed, but also for appraisals.’’ According to the
credible testimony of Schwartz, who when she testified had
been working for the Respondent as administrative dietician
for about 16 months, Kirk had never on any other occasion
advised her to place a written disciplinary warning in an em-
ployee’s file, nor had she ever done so on her own initiative,
even though the dry-turkey incident was not the first time
that a guest had complained about an employee. After asking
Kirk about this incident, the Respondent’s counsel asked
Kirk about two anonymous telephone calls which on Feb-
ruary 13 and/or 14 the Respondent received via its ‘‘hot
line,’’ both of which complained about lack of service by the
the Respondent’s ‘‘dieticians’’—a word which, Kirk testified,
was commonly used to refer to anyone who works in the diet
office. The Respondent never
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955LOUIS A. WEISS MEMORIAL HOSPITAL
23 This figure does not include Schwartz’ April diary, which was
removed from her desk that month by an unknown person or per-
sons.
24 Respondent’s brief also contends that the ‘‘sheer number’’ of
‘‘these repeat’’ incidents set forth in the diary ‘‘suggests that [Zim-
merman] must have believed that she was somehow exempt from the
rules and procedures,’’ and that Kirk’s rating of ‘‘4’’ for Zimmer-
man’s Quality of Work ‘‘may have been overgenerous in view of
his unfamiliarity with Ms. Schwartz’ diary’’ (pp. 10–11). I fail to
perceive the materiality of these arguments in view of Kirk’s testi-
mony that the ‘‘evaluation form’’ was the ‘‘sole consideration’’ in
making ‘‘these evaluations or rankings,’’ and the Respondent’s con-
tention that the decisions about whom to terminate ‘‘were based
solely on’’ the RIF rating forms (p. 11).
25 These and the dates subsequently mentioned in this paragraph
are the dates of the entries, not the dates of the incidents.
26 These were the menus on which the patients had indicated their
food choices for the meals to be served on a particular day. Some-
times no such annotated menu would exist for a particular patient,
because the patient had been admitted after distribution of the
unannotated menus, had been undergoing tests outside his hospital
room when the unannotated menus were distributed, or had had his
diet changed by his doctor after the patient had annotated his menu.
Schwartz’ testimony at least suggests that Zimmerman had a practice
of listing the unfiled menus. Schwartz testified that the number of
unfiled menus listed by Zimmerman exceeded the number which had
been set by Schwartz’ predecessor as a standard maximum, and that
for this reason, Schwartz had concluded the number of unfiled
menus to be excessive. After the layoff, Schwartz instituted a new
policy of filling out the menus for patients who, for the reasons pre-
viously indicated, could not fill out the menus themselves. There-
after, the number of unfiled menus substantially dropped.
27 As of the June 1995 hearing, failures to make calorie counts
continued to be a problem.
did find out who made these calls or at whom these com-
plaints were directed. Kirk testified that Zimmerman had re-
ceived no compliments from guests, whereas Sueno and Har-
grove had each received an undisclosed number of oral com-
pliments (undocumented in the Respondent’s records) for
‘‘going out of their way to deliver some kind of stranger pa-
tient requests.’’
Kirk testified that the factor ‘‘Guest Relations’’ on the rat-
ing sheets ‘‘would have pertained to staff relationships as
well as patients.’’ As to this factor, he wrote on her rating
sheet, ‘‘Have had problems in . . . visitor and staff rela-
tions.’’ He testified that he gave Zimmerman a relatively low
rating on this factor partly because of oral and undocumented
complaints from unit clerks on cooperation, and partly be-
cause of undocumented complaints, whose nature he was not
asked, from visitors.
8. Other incidents
On February 24, 1994, Schwartz conducted a meeting
which was attended by, among others, Kirk, Sueno, and Har-
grove, but not by Zimmerman, who was not on duty that
day. Among the matters discussed was the at least alleged
conduct of Zimmerman and Hargrove in changing their work
schedules on their own accord without going through
Schwartz. The typed agenda for that meeting states, in part,
‘‘If you must call in an absence, please do so as far in ad-
vance as possible. Please notify Carol Schwartz.’’ The par-
ties stipulated that on March 2, Schwartz reviewed the
‘‘agenda topics’’ with Zimmerman. The record otherwise
fails to show whether Zimmerman was advised about the
schedule-change matter; at the hearing, neither she nor
Schwartz was asked about this. Thereafter, on a date not
clear in the record, Schwartz issued a work schedule for May
8 through June 4, 1994. Schwartz testified that she did not
work on May 7 or 8. When she returned to her office on
May 9, she found on her desk a copy of the May 8–June
4 schedule issued by her, with changes entered thereon for
May 9 and June 2–4 and with the following handwritten note
from Zimmerman: ‘‘Carol, Please note changes/sorry.’’ In
accordance with the changes which Zimmerman had entered
on the schedule, she reported to work on May 9, which
Schwartz had scheduled as a holiday for Zimmerman (per-
haps at Zimmerman’s request) at 5:30 a.m., which was her
usual reporting hour but was an hour and a half or more be-
fore Schwartz’ scheduled reporting hour. At least as to the
changes entered by Zimmerman for June 2–4, Schwartz testi-
fied, ‘‘I think we worked it out.’’ As expressed at the hear-
ing, Schwartz’ dissatisfaction with Zimmerman’s conduct
was not with any request by Zimmerman for a schedule
change after the schedule had been made out, but that ‘‘it is
the only time an employee had the audacity to make the
changes and put it on my desk.’’ Kirk testified that after the
February 24 meeting, the problem of employees’ changing
shifts ‘‘never really ceased.’’ After inspecting the exhibit
which is a photocopy of the schedule which Zimmerman had
left on Schwartz’ desk, Kirk testified that it ‘‘appears to be
a change in the schedule on [Zimmerman’s] own wishes
without talking to the supervisor.’’ The record fails to show
whether Kirk knew about this May–June incident at any ma-
terial time.
Schwartz maintained a daily diary in which she noted er-
rors or performance deficiencies, mostly those about which
the employee had been previously counseled. Between March
2 and July 11, 1994, Schwartz made nine such entries nam-
ing Zimmerman, in addition to entries regarding the pre-
viously discussed dry-turkey incident.23 As to the signifi-
cance of these entries in connection with Zimmerman’s rat-
ing, the Respondent’s posthearing brief contains the follow-
ing accurate summary of Kirk’s and Schwartz’ testimony
(pp. 10–11), ‘‘While Mr. Kirk did not solicit input from Ms.
Schwartz when he prepared the ratings . . . she was asked
to review the ratings and she concurred with them.’’24
One of Schwartz’ diary entries noted that on June 3, Zim-
merman had failed to comply with State requirements to
wear a hair net when working in food preparation areas.
Schwartz had also reproached other diet-office employees for
not wearing a hair net in the kitchen area. A May 11 entry
states that Zimmerman had issued future menus in a manner
and at a time which may have interfered with three patients’
opportunity to select their own breakfast.
The other entries naming Zimmerman reflected conduct
about which Zimmerman had been orally counseled once or
twice previously. These entries referred to March 2 and June
2025 failures to file the menus for all the patients before
leaving for the day (conduct in which ‘‘all the staff’’ en-
gaged, although Schwartz testified that she did not recall
speaking to any other diet technicians about the matter);26 a
March 2 failure to make a calorie count,27 a March 2 sign-
out notation that she had left later than she in fact left, a
March 7 failure to comply with instructions to enter on a
production sheet an order for an orange which was to be
quartered because the arthritic patient was physically unable
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956 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
28 Schwartz later constructed a chart which held each diet techni-
cian accountable for covering the office for certain hours. Schwartz
testified that diet technicans other than Zimmerman failed to cover
the office on some occasions, but that Schwartz developed the chart
‘‘particularly’’ for Zimmerman.
29 Schwartz’ diary entry as to her counseling of Zimmerman in
connection with this incident states, ‘‘Talked to [Zimmerman] about
5 a.m. and leaving early—1:45 p.m.’’ Schwartz testified that she
counseled Zimmerman both about leaving at 1:45 p.m. and about her
practice of beginning work at 5 a.m. instead of her scheduled hour
of 5:30 a.m. The record fails to show the hour when Zimmerman
in fact began to work on the day in question; she was not asked
about this matter.
30 These included a failure to record calorie counts, a ‘‘serious of-
fense’’ (according to Schwartz) for which the whole staff was coun-
seled, and failure to make a ‘‘positive’’ reply when a patient wanted
a late lunch tray and hot food was no longer available that afternoon.
31 The complaint does not allege that the Respondent violated the
Act by forbidding the distribution of union literature.
to quarter it herself, a March 10 failure to thoroughly check
off for drug and alcohol dependency patients certain caffeine-
containing items which such patients should not receive, a
June 22 uncovered absence from the office for 35 minutes
for reasons not shown by the record,28 and, on July 11, sign-
ing out 15 minutes before the scheduled end of the shift.29
In addition, Schwartz spoke with Zimmerman at least four
times during April 1994 (see supra, fn. 23) about accuracy,
and ‘‘following through the procedures of the department.’’
Because of Zimmerman’s work schedule, Schwartz
testimonially attached to Zimmerman two reproofs as to
whom Schwartz’ diary does not name the employee. One of
these was a March 29 failure to put a calorie-count sticker
on a breakfast tray. Because Zimmerman was not asked
about this incident, I infer that she was in fact the employee
who was responsible for it. The other incident involved a
failure to make sure that snacks were available for all dia-
betic patients. On direct examination, Schwartz testified that
on July 8, she discussed the importance of this duty with
Zimmerman. Zimmerman was not on duty on July 8. On
cross-examination, Schwartz denied counseling Zimmerman
about this incident. In view of these inconsistencies, I infer
that any neglect was not attributable to Zimmerman.
Schwartz also orally counseled Sueno about certain errors,
but she did not repeat them and they are not noted in
Schwartz’ diary.30 In addition, Schwartz orally counseled
Sueno about her poor handwriting. Although Sueno’s hand-
writing remained ‘‘terrible,’’ Schwartz’ diary does not refer
thereto. The job description for diet technician in effect until
May 1995 states, ‘‘Must be able to write legibly.’’ There is
no evidence that Sueno’s poor handwriting affected the qual-
ity of her job performance.
Schwartz also testified about diary entries she made re-
garding Hargrove. I see no reason to spell out these entries
in detail.
D. Analysis and Conclusions
1. The independent 8(a)(1) allegations
My action in discrediting employee Thomas’ testimony
about remarks allegedly made by Supervisor Smith calls for
dismissal of the complaint allegation that the Respondent,
through Smith, threatened employees that other employees
were selected for discharge because of employees’ union ac-
tivities.
However, I agree with the General Counsel that the Re-
spondent violated Section 8(a)(1) when the Respondent,
through Executive Chef Mitchell, unqualifiedly told em-
ployee Zimmerman not to talk to ‘‘his cooks’’ about the
‘‘union stuff.’’ NLRB v. Rich’s Precision Foundry, 667 F.2d
613, 621–622 (7th Cir. 1981); Eastern Steel Co., 253 NLRB
1230, 1238 (1981), enfd. 671 F.2d 104 (3d Cir. 1982); see
also Beth Israel Hospital v. NLRB, 437 U.S. 483, 491–493
(1978); NLRB v. Magnavox Co. of Tennessee, 415 U.S. 322,
325 (1974).31
2. Zimmerman’s termination
As the Respondent does not appear to question, an em-
ployer who has decided for lawful economic reasons to di-
minish the size of his work force violates Section 8(a)(3) and
(1) of the Act by selecting an employee for inclusion in the
layoff because of his union activity. Sonicraft v. NLRB, 905
F.2d 146, 149 (7th Cir. 1990), enfg. 295 NLRB 766, 783–
788 (1989); Potential School for Exceptional Children, 282
NLRB 1087, 1091–1092 (1987), enfd. 883 F.2d 560 (7th Cir.
1989); Turnbull Cone Baking Co., 271 NLRB 1320, 1355
(1984), enfd. 778 F.2d 292 (6th Cir. 1985), cert. denied 476
U.S. 1159 (1986), W. C. McQuaide, Inc., 319 NLRB 756,
756 fn. 2, 785–786 (1995); Knoxville Distribution Co., 298
NLRB 688 (1990), enfd. mem. 919 F.2d 141 (6th Cir. 1990).
I conclude that the evidence preponderantly shows that Zim-
merman’s union activity was at least in part the reason for
her inclusion in the August–September 1994 layoffs.
Initially, the record shows that the Respondent strongly
opposed the Union, and that the Respondent knew about and
resented Zimmerman’s union and perceived union activity.
Thus, while Zimmerman was distributing union authorization
cards in support of the union campaign initiated by her in
the fall of 1995, Supervisor Smith told her that Smith had
heard rumors that Zimmerman had union cards and that she
had better be careful. Further, during that campaign she kept
a union mug on her desk and hung a 6-inch union button
over her desk. Moreover, during director of support service
True’s May 7 speech to a number of employees in the pres-
ence of Food and Nutrition Operations Manager Kirk, in an
effort to induce employees to vote against the Union, Zim-
merman openly disputed True’s assertion that the Union
wanted a lot of money, openly expressed the opinion that a
union at UCH had improved employees’ working conditions,
and openly disputed True’s assertion that the Respondent and
UCH were not connected in any significant respect. These
publicly expressed views by Zimmerman not only caused
True to redden and to turn his back to her, but may have
led to a letter to the employees from the Respondent’s chief
executive officer asserting that UCH and the Respondent
were significantly different. Further, on inferring that Zim-
merman had posted a prounion flier on ‘‘his’’ bulletin board,
Executive Chef Mitchell caused administrative dietician
Schwartz to tell Zimmerman not to do this again; hit her on
the back; referred to his message in scatological terms; told
her not to give ‘‘his’’ cooks ‘‘union stuff’’ or to talk to them
about it; and ascribed a perceived estrangement between her
and him to her involvement with the Union, which he de-
scribed in scatological terms. During the representation elec-
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957LOUIS A. WEISS MEMORIAL HOSPITAL
32 That even a good-faith decision as to the number of diet techni-
cians (if any) to include in the layoff would have been to at least
some extent a matter of judgment is shown by the evidence that food
service workers and diet technicians have performed some of the
same work, and diet technicians and dieticians have performed some
of the same work.
tion, at which Zimmerman was the only employee to act as
union observer for both sessions, Supervisor Smith responded
to Zimmerman’s questions about her nonreceipt of an
antiunion letter from management by remarking, ‘‘Well, we
know where you stand with the Union, so what does it mat-
ter?’’ By letter to Zimmerman dated June 3, 1994, after the
Union had lost the May 12 election, the Respondent denied
as to the Respondent’s antiunion campaign certain allegations
in a May 13 letter from her to UCH management. About 2
weeks later, Executive Chef Mitchell told Zimmerman that
he was tired of his supervisors’ complaining to him about her
and the Union. When Kirk telephoned Zimmerman about the
matter, Zimmerman repeated to Kirk Executive Chef Mitch-
ell’s remark about ‘‘his supervisors’’’ complaints about her
and the Union, said she was afraid of Mitchell, and asked
that any dealings between her and Mitchell go through Kirk
or Schwartz. Indeed, when after Zimmerman’s termination
she visited the Respondent’s establishment to pick up her
final checks, Mitchell remarked, ‘‘Oh, is [Zimmerman] here
to sell that union [scatological term] again?’’
Finally, the Respondent’s own evidence shows that Zim-
merman’s termination was not a mere incident to the Au-
gust—September 1994 layoffs directed toward a relatively
permanent reduction in the size of the Respondent’s entire
work force; rather, such evidence shows that the lawfully
motivated mass layoff was used by the Respondent to con-
ceal its reasons for terminating Zimmerman. Thus, Carol
House, who is the Respondent’s vice president senior execu-
tive for support services, credibly testified that until the Re-
spondent had the results of the early retirement incentive pro-
gram, no determination could be made about how many em-
ployees would be lost by layoff in each specific category.
The period within which eligible employees could apply for
early retirement did not expire until August 29. However, the
testimony of Administrative Dietician Carol Schwartz, even
when considered in light of dates on the RIF rating sheets
and on the ranking sheet authenticated by the Respondent’s
witnesses, shows that director of support services True knew,
no later than August 23 and (probably) earlier than that, that
two diet technicians were going to be terminated, and that
these would be Hargrove and Zimmerman. True relayed this
information to Schwartz after he and Kirk had signed the
three diet technicians’ RIF rating sheets and dated them Au-
gust 14, and after True had signed the ranking sheet and
dated it August 16, which documents showed that in order
to reach Zimmerman in a manner at least arguably consistent
with the rules to be followed in determining after August 29
the individuals to be laid off and their distribution among the
various job classifications, the Respondent would have to ter-
minate two of its three diet technicians. When considered in
light of the Respondent’s animus against unionization in gen-
eral and union activist Zimmerman in particular, and in light
of supervisor Smith’s warning to Zimmerman that she had
better be ‘‘careful’’ in view of reports to Smith (which were
accurate) that Zimmerman had union cards, the evidence that
the Respondent reached its decision to terminate Zimmerman
before it had enough information to determine the number,
job classifications, and identity of the employees who would
be included in the layoff for lawful economic reasons con-
stitutes persuasive evidence that her union activity was at
least a motive for her termination. ‘‘False defenses become
a two-edged sword in that they may serve to support an ulti-
mate inference of unlawful motive.’’ Western Plant Services,
322 NLRB 183, 194 (1996); see also Whitesville Mill Service
Co., 307 NLRB 937 (1992).
Other evidence casts further doubt on the honesty of the
Respondent’s explanation for Zimmerman’s termination.
Thus, although the Respondent admits (in effect) that Zim-
merman would not have been terminated if management had
not decided to terminate as many as two diet technicians, the
Respondent not only failed to call as a witness a member or
members of management to testify that they were responsible
for making this decision and to explain why they made it,
but also failed to call as a witness anyone who would iden-
tify the management personnel who made this decision.32
Further, although the ‘‘Rightsizing’’ instructions and forms
obviously contemplated that the rankings were at least ordi-
narily to consist of more than a list of employees in each job
classification in the order of their RIF ratings, and also con-
templated that the rankings would override the ratings, the
record is silent as to why the ‘‘ranking’’ list for diet techni-
cians is limited to them. Further, the Respondent’s conduct
in connection with the dry-turkey incident, which according
to Kirk affected Zimmerman’s relatively low rating as to
‘‘guest relations,’’ shows a number of peculiarities. Thus,
Schwartz’ entry on the form purporting to set forth the
reproof given to Zimmerman in connection with this incident
is much sharper than the oral reproof which Zimmerman re-
ceived according to Schwartz’ own testimony. Further, the
reproof as described in the form is inappropriate for the of-
fense as described in the form; more specifically, the form
alleged that she had engaged in ‘‘flippant’’ conduct, had
walked out in the middle of her conversation with the pa-
tient, and had inaccurately described to the patient the nor-
mal hospital policy as to menus unsatisfactory to a particular
patient, but further stated, in effect, that Zimmerman’s con-
duct ‘‘might embarrass patients/personnel/visitors.’’ In addi-
tion, and contrary to the procedure called for by the form,
Zimmerman was not presented with it, and there is no evi-
dence that she saw it at any material time. Moreover,
Schwartz’ descriptions of the incident in the form and on the
witness stand are somewhat inconsistent. Further, although
the Respondent did shift some of the other employees under
Kirk from full-time to part-time positions, there is no evi-
dence that this option was made available to Zimmerman, or
that she was ever offered such a part-time job after her Au-
gust 31, 1994 termination, even though the Respondent sub-
sequently transferred two employees (one of them hired after
Zimmerman’s termination) with other job classifications to
work as diet technicians on a part-time basis. Likewise some-
what peculiar are certain interpretations which Kirk allegedly
placed on the rating form and which disadvantaged Zimmer-
man. Thus, Kirk testified that he interpreted the term ‘‘Guest
Relations’’ to include relations with other members of the
Respondent’s staff and with visitors, and that in rating Zim-
merman as to this factor he relied on her at least alleged
noncooperation with unit clerks and on undocumented and
unspecified complaints from visitors. Moreover, Kirk testi-
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958 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
33 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
fied that as to the RIF rating category which read ‘‘Job-relat-
ed experience/education,’’ Sueno received a higher rating
than Hargrove or Zimmerman because, although Hargrove
and Zimmerman exceeded her as to job skills and as to the
ability to pick up new skills and instructions, ‘‘we’’ looked
only at formal training in the dietetics field because ‘‘we
needed . . . someone who can work multi-faceted.’’ Further-
more, although Supervisor Smith was admittedly aware that
Zimmerman had received additional training in the dietary
field, and although the instruction sheet had directed Kirk not
to use educational background as a basis for rating any em-
ployee if information as to this factor was not available for
one employee, Kirk nonetheless used educational background
in rating all the diet technicians, and the RIF ratings prepared
by Kirk gave Zimmerman (and Hargrove) a relatively low
score as to ‘‘job-related experience/education’’ for the ex-
press reason that they had ‘‘no formal training/education.’’ In
addition, the record is silent as to why ‘‘human resources’’
noted its approval on Zimmerman’s RIF rating sheet but not
on Sueno’s and Hargrove’s rating sheets.
Because the evidence thus preponderantly shows that Zim-
merman’s union activity was a motivating reason for her ter-
mination, her termination violated Section 8(a)(1) and (3) un-
less the Respondent shows, by a preponderance of the evi-
dence, that she would have been terminated even in the ab-
sence of her union activity. NLRB v. Transportation Manage-
ment Corp., 462 U.S. 393, 398–403 (1993); NLRB v. Ad-
vance Transportation Co., 979 F.2d 569, 573 (7th Cir. 1992);
NLRB v. Advance Transportation Co., 965 F.2d 186, 190–
191 (7th Cir. 1992); NLRB v. Bestway Trucking, 22 F.3d
177, 180 (7th Cir. 1994); KNTV, Inc., 319 NLRB 447, 452
(1995); and Manno Electric, 321 NLRB 278, 280 fn. 12
(1996). the Respondent has failed to make such a showing.
More specifically, the Respondent has failed to show that it
would have terminated Diet Technician Zimmerman if it had
waited until after the August 29 early retirement deadline (as
the Respondent did with respect to the lawful economic lay-
off) to ascertain the size of the remaining work force and
their distribution between job categories and between full-
time and part-time status, and had then determined without
regard to Zimmerman’s union activity how many Diet Tech-
nicians (if any) to include in the layoffs.
For the foregoing reasons, I find that the Respondent vio-
lated Section 8(a)(1) and (3) of the Act by terminating Bar-
bara Zimmerman.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. The Respondent has violated Section 8(a)(1) of the Act
by telling an employee not to discuss the Union with other
employees.
4. The Respondent has violated Section 8(a)(1) and (3) of
the Act by terminating employee Barbara Zimmerman.
5. The unfair labor practices set forth in Conclusions of
Laws 3 and 4 affect commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
6. The Respondent has not violated Section 8(a)(1) of the
Act by threatening employees that other employees were se-
lected for discharge because of employees’ union activities.
THE REMEDY
Having found that the Respondent has violated the Act in
certain respects, I shall recommend that the Respondent be
required to cease and desist from such conduct, or like and
related conduct, and to take certain affirmative action nec-
essary to effectuate the policies of the Act. Thus, the Re-
spondent will be required to offer Zimmerman reinstatement
to her former position or, if no such position exists, to a sub-
stantially equivalent position, and to make her whole for any
loss of earnings and other benefits she may have suffered by
reason of her unlawful termination, as prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), plus interest as com-
puted in New Horizons for the Retarded, 283 NLRB 1173
(1987). In addition, the Respondent will be required to re-
move from its records (1) all references to Zimmerman’s un-
lawful termination; (2) the memorandum in her file which in-
cludes the date of March 28, 1994, and is captioned ‘‘Record
of Disciplinary Action’’; (3) her RIF rating sheet dated Au-
gust 14, 1994; and (4) the ranking sheet including her name
and dated August 16, 1994; and to notify her in writing that
this has been done and that the actions and matters reflected
in these documents will not be used against her in any way.
Also, the Respondent will be required to post appropriate no-
tices.
On the basis of these findings of fact and conclusions of
law, and the entire record, and pursuant to Section 10(c) of
the Act, I issue the following recommended33
ORDER
The Respondent, Louis A. Weiss Memorial Hospital, Chi-
cago, Illinois, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Telling employees not to discuss unions with other em-
ployees.
(b) Discouraging membership in Warehouse, Mail Order,
Office Technical, and Professional Employees Union, Local
743, International Brotherhood of Teamsters, AFL–CIO, or
any other labor organization, by terminating employees or by
otherwise discriminating in regard to hire or tenure of em-
ployment or any term or condition of employment.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer Bar-
bara Zimmerman full reinstatement to her former position or,
if this position no longer exists, a substantially equivalent po-
sition, without prejudice to her seniority or any other rights
and privileges previously enjoyed.
(b) Make her whole for any loss of earnings and other
benefits suffered as a result of the discrimination against her,
in the manner set forth in the remedy section of this deci-
sion.
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959LOUIS A. WEISS MEMORIAL HOSPITAL
34 In the event that the Board’s Order is enforced by a judgment
of a United States Court of Appeals, the words in the notice reading
‘‘Posted by Order of the National Labor Relations Board’’ shall be
changed to read, ‘‘Posted Pursuant to a Judgment of the United
States Court of Appeals Enforcing an Order of the National Labor
Relations Board.’’
(c) Within 14 days from the date of this Order, remove
from its files (1) all references to Zimmerman’s unlawful ter-
mination; (2) the memorandum in her file which includes the
date of March 28, 1994, and is captioned ‘‘Record of Dis-
ciplinary Action’’; (3) her rating sheet dated August 14,
1994; and (4) the ranking sheet including her name and dated
August 16, 1994; and within 3 days thereafter, notify her in
writing that this has been done and that the action and mat-
ters reflected in these documents will not be used against her
in any way.
(d) Preserve and, within 14 days of a request, make avail-
able to the Board or its agents, for examination and copying,
all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records
necessary or useful in analyzing the amount of backpay due
under the terms of this Order.
(e) Within 14 days after service by Region 13, post at its
facility in Chicago, Illinois, copies of the attached notice
marked ‘‘Appendix.’’34 Copies of the notice, on forms pro-
vided by the Regional Director for Region 13, after being
signed by the Respondent’s authorized representative, shall
be posted by the Respondent and maintained for 60 consecu-
tive days in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other mate-
rial. In the event that, during the pendency of these proceed-
ings, the Respondent has gone out of business or closed the
facility involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed by
the Respondent at any time since May 7, 1994.
(f) Within 21 days after service by the Region, file with
the Regional Director a sworn certification of a responsible
official on a form provided by the Region attesting to the
steps that the Respondent has taken to comply.
Paragraph V,b of the complaint is dismissed.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT tell you not to discuss unions with other
employees.
WE WILL NOT discourage membership in Warehouse, Mail
Order, Office Technical, and Professional Employees Union,
Local 743, International Brotherhood of Teamsters, AFL–
CIO, or any other union, by terminating you, or otherwise
discriminating in regard to your hire or tenure of employ-
ment or any term or condition of employment.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of your rights under
the Act.
WE WILL, within 14 days from the date of the Board’s
Order, offer Barbara Zimmerman reinstatement to her former
job or, if that job no longer exists, to a substantially equiva-
lent position, without prejudice to her seniority or any other
rights or privileges previously enjoyed.
WE WILL make Barbara Zimmerman whole, with interest,
for any loss of earnings and other benefits she may have suf-
fered by reason of her termination.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files (1) all reference to Zimmer-
man’s unlawful termination; (2) the memorandum in her file
which includes the date of March 28, 1994, and is captioned
‘‘Record of Disciplinary Action’’; (3) her rating sheet dated
August 14, 1994; and (4) the ranking sheet including her
name and dated August 16, 1994, and WE WILL, within 3
days thereafter, notify Zimmerman in writing that this has
been done and the actions and matters reflected in these doc-
uments will not be used against her in any way.
LOUIS A. WEISS MEMORIAL HOSPITAL
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