Magan Medical Clinic

National Labor Relations Board - Board Decisions

Sep 12, 1994

314 N.L.R.B. 1083 (N.L.R.B. 1994)

1083
314 NLRB No. 173
MAGAN MEDICAL CLINIC
1 On April 6, 1993, Administrative Law Judge Jay R. Pollack
issued the attached decision. The General Counsel and the Respond-
ent filed exceptions and supporting briefs. The General Counsel and
the Respondent also filed answering briefs.
2 We note that no exceptions were filed with respect to the judge’s
dismissal of the allegation that the Respondent dominated the forma-
tion of the Committee.
In adopting the judge’s finding that the Respondent interfered with
the formation of the Magan Medical Clinic Grievance Committee
and the recommended Order that the Respondent withdraw recogni-
tion from the Committee, Member Devaney notes that, in the course
of discouraging union supporter Wallin from unionizing the Re-
spondent’s employees, Clifford, the Respondent’s administrator, stat-
ed that he wanted to start a grievance committee and that Wallin
could be in charge of it and could pick the employees on the com-
mittee. The employees elected the committee representatives only
because Wallin told Clifford that such a method was preferable. Fur-
ther, although the grievance committee appeared to free itself at least
partially from the direct control of the Respondent during the course
of its operations, the Respondent formulated the grievance committee
scheme to frustrate employees’ attempts to determine whether they
wanted a bargaining representative and bargained with the Com-
mittee over grievances numerous times. Thus, the Respondent ac-
corded tacit recognition to a representative not freely chosen by a
majority of employees and founded, in part, to frustrate employees’
efforts to choose a representative. See Electromation, Inc., 309
NLRB 990, 1003 (1992) (Member Devaney concurring). Member
Devaney finds this case distinguishable from John Ascuaga’s Nug-
get, 230 NLRB 275 (1977), and Mercy-Memorial Hospital, 231
NLRB 1108 (1977), in which the Board found that committees of
employees set up to resolve employee grievances were not statutory
labor organizations because they performed the managerial function
of deciding grievances. Here, by contrast, the evidence indicates that
the employee representatives on the Committee did not decide em-
ployee grievances but bargained with the Respondent over them.
Member Cohen finds it unnecessary to pass on the judge’s conclu-
sion that the Respondent interfered with the administration of the
Committee. Given the extent of interference with the formation of
the Committee, Member Cohen finds that this violation is sufficient
to support the remedial order.
3 The Respondent appears to have excepted to some of the judge’s
credibility findings. The Board’s established policy is not to overrule
an administrative law judge’s credibility resolutions unless the clear
preponderance of all the relevant evidence convinces us that they are
incorrect. 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.
4 In connection with its defense under Wright Line, 251 NLRB
1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455
U.S. 989 (1982), the Respondent argued that it had previously issued
two written warnings to Wallin based on her harassment of employ-
ees. The Respondent contends that it discharged Wallin after a third
incident of harassment. In response, the General Counsel argued that
the alleged incidents of ‘‘harassment’’ were in fact Sec. 7 activities,
and thus the warnings and the discharge were unlawful. We do not
agree with the General Counsel. Two of the incidents had nothing
whatever to do with Sec. 7 activity. In a third incident, Wallin
sought to induce employee Contreras to support her in her sexual
harassment claim against the Respondent. Contreras replied that she
did not believe that the conduct occurred as Wallin claimed, and that
she (Contreras) would not ‘‘lie’’ on behalf of Wallin. Despite this,
Wallin repeatedly tried to get Contreras to support Wallin’s version,
and said that Contreras’ refusal to do so was a betrayal of friendship.
In these circumstances, we do not believe that Wallin’s continued ef-
forts vis-a-vis Contreras were protected by Sec. 7 of the Act.
Magan Medical Clinic, Inc. and Office and Profes-
sional Employees, International Union, Local
30 and Magan Medical Clinic Grievance Com-
mittee. Case 21–CA–28814
September 12, 1994
DECISION AND ORDER
BY MEMBERS STEPHENS, DEVANEY, AND COHEN
The primary issues in this case1 are whether the
judge erred in finding that the Respondent violated
Section 8(a)(2) by interfering with the formation and
administration of the Magan Medical Clinic Grievance
Committee (the Committee)2 and by dismissing the al-
legations that the Respondent warned and terminated
employee Wallin in violation of Section 8(a)(3). The
case also presents the issues of whether the judge erred
by finding that the Respondent violated Section 8(a)(1)
by unlawfully interrogating employees and by an-
nouncing an overly broad no-solicitation rule.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings,3 findings, and con-
clusions4 and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Magan Medical Clinic,
Inc., Covina, California, its officers, agents, successors,
and assigns, shall take the action set forth in the Order.
Ami Silverman, Esq., for the General Counsel.
John David Pereira, Esq., of Santa Ana, California, for the
Respondent.
Kathleen Simmons, Business Rep., of La Mesa, California,
for the Charging Party.
DECISION
STATEMENT OF THE CASE
JAY R. POLLACK, Administrative Law Judge. I heard this
case in trial at Los Angeles, California, on February 2 and
3, 1993. On July 15, 1992, Office and Professional Employ-
ees, International Union, Local 30 (the Union) filed the origi-
nal charge in Case 21–CA–28814 alleging that Magan Med-
ical Clinic, Inc. (Respondent) committed certain violations of
Section 8(a)(3) and (1) of the National Labor Relations Act
(the Act). On August 26, the Union filed an amended charge
alleging that Respondent had violated Section 8(a)(1), (2),
and (3) of the Act. The Regional Director for Region 21 of
the National Labor Relations Board issued a complaint and
notice of hearing against Respondent on September 16, 1992.
The complaint alleges that Respondent unlawfully dominated
and assisted the Magan Medical Clinic Grievance Committee
1084 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Forum was served with copies of the pleadings but filed no
papers and made no appearance in the case.
(the Employee Forum Committee or the Forum).1 Further the
complaint alleges that Respondent unlawfully discharged
Lara Wallin, an employee, for her union activities on behalf
of the Union and unlawfully interrogated and threatened
Wallin because of her protected concerted activities. Re-
spondent filed a timely answer to the complaint, denying all
wrongdoing.
All parties have been afforded full opportunity to appear,
to introduce relevant evidence, to examine and cross-examine
witnesses, and to file briefs. Upon the entire record, from my
observation of the demeanor of the witnesses, and having
considered the posthearing briefs of the parties, I make the
following
FINDINGS OF FACT
I. JURISDICTION
Respondent is a California corporation with an office and
principal place of business located in Covina, California,
where it is engaged in operating an outpatient clinic. During
the past 12 months, Respondent received gross revenues in
excess of $1 million. During the same period of time, Re-
spondent received from the performance of services directly
to customers located outside the State of California revenues
of approximately $20,000. Accordingly, Respondent admits
and I find that it is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
The Union represents office workers employed by various
other unions and by certain health care facilities. Employees
belong to and participate in the Union. One of its purposes
is to engage in collective bargaining and it has numerous col-
lective-bargaining agreements. Accordingly, I find that the
Union has been a labor organization within the meaning of
Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
Lara Wallin was an office worker with Respondent for 6
years. In February 1992, Wallin spoke to Kathleen Simmons
of the Union and obtained union authorization cards. Begin-
ning in late February, Wallin distributed the authorization
cards to other office workers. Wallin obtained the signatures
of 20–30 employees.
On February 28, 1992, Garrett Clifford, Respondent’s ad-
ministrator, called Wallin into his office for a conversation.
Wallin testified that Clifford asked her if she was unhappy.
Wallin answered that she was unhappy and listed treatment
by supervisors, low morale, and concerns about wages. Ac-
cording to Wallin, Clifford said ‘‘I heard you are bringing
in the Union.’’ After Wallin answered that she was, Clifford
asked her ‘‘why.’’ Wallin stated that she was concerned
about pay, treatment by supervisors, job security, and that
there was no recourse against unjust action by supervisors.
Clifford said it was stupid to bring in a union and that he
couldn’t understand why such a small company needed a
union. Clifford told Wallin that she could not pass out union
cards or engage in union activity while on the clock or while
he was paying her. Clifford told Wallin that an employee had
complained about harassment by Wallin in soliciting for the
Union. Wallin asked who had complained but Clifford would
not tell her the name. Wallin denied harassing any employee
and Clifford told her that any further incident of harassment
would result in her termination.
According to Clifford he had been told that Wallin, who
works on the second floor, was harassing an employee in the
basement. Evidently, the employee had complained to her su-
pervisor. While Wallin was on her break, the employee being
solicited was on duty. Clifford told Wallin not to harass em-
ployees any further and that if she did so, he would have to
take action. In discussing employee concerns, Wallin sug-
gested a committee of employees to hear and act upon griev-
ances. Thereafter, Clifford wrote a memo to Wallin’s per-
sonnel file entitled written warning. However, Clifford did
not give Wallin a copy or tell her of the written warning.
Wallin testified that a few days later Clifford again called
her to his office. According to Wallin, Clifford asked why
she was trying to bring in the Union. Wallin said the em-
ployees had no job protection and that certain supervisors
had been unfair. Clifford answered that he would back up a
supervisor and that he could always replace an employee.
Clifford told Wallin not to intimidate employees.
According to Wallin, a third meeting was held on April
7. However, the record establishes that the meeting was held
on March 4. Clifford asked Wallin why a union was needed
at such a small facility. Wallin answered that it would be
worth getting a union in order to get higher pay. Clifford
told Wallin that he wanted to start a grievance committee
and that she could be in charge of the committee. Wallin told
Clifford that it would be better if the employees voted for
the committee members. Clifford said there could be five
members and that Wallin could pick them. Wallin and
Clifford agreed that an election would be held.
On March 5, a notice was sent to employees announcing
that an election would be held for the employee forum com-
mittee. On March 12, an election was held and employees
voted for representatives to be on the committee. Approxi-
mately 40 employees voted.
Clifford directed a secretary to write the Forum’s rules and
procedures. The express purpose of the Forum was ‘‘to pro-
vide a fair and orderly procedure for airing employee griev-
ances involving wages, hours and terms and conditions of
employment.’’ At the first meeting of the Forum, held in
Clifford’s office, the employees went over the rules and pro-
cedures. Thereafter, the employees issued their own guide-
lines and procedures. Clifford instructed the Forum that the
committee would be governed by the employees and that the
supervisors and administration would not be involved.
A second meeting of the Forum was also held in Clifford’s
office. However, Clifford did not participate in this meeting.
He told the employees that it was their committee and that
he could have nothing to do with it. At this meeting the
Forum finalized its rules and procedures. These rules pro-
vided for grievances to be filed with the Forum and that after
review by the committee, the presentation of recommenda-
tions to Clifford. The revised grievance procedures stated
that the procedures were produced solely by the Forum.
Thereafter, the Forum did not hold its meetings in Clifford’s
office. Rather, it held meetings in Respondent’s computer
training room. The Forum initially held monthly meetings
but later held meetings only if there were grievances to dis-
1085MAGAN MEDICAL CLINIC
cuss. On certain occasions it was able to obtain favorable ac-
tion on grievances from Clifford.
On January 31 and February 1, 1992, Wallin and the other
employees in the medicare department received verbal warn-
ings from Supervisor Shirley Brown. The first of these warn-
ings concerned a ‘‘verbal assault’’ on a coworker. The sec-
ond warning concerned complaints from patients regarding
telephone manners. The General Counsel does not allege that
these first two warnings were discriminatory. However, the
General Counsel alleges that three subsequent warnings were
motivated by Wallin’s organizing activities. On or about
March 25, Wallin gave some of her files to employee Jea-
nette Martinez for filing. Brown questioned Martinez as to
why she was doing someone else’s work. Martinez began to
cry and answered that Wallin had ordered her to do the
work. Brown gave Wallin a written warning citing abuse of
a coworker but Wallin refused to sign the warning slip.
On March 30, 1992, Clifford distributed the Magan Har-
assment Policy to all employees. Clifford testified that he
issued the policy in response to Wallin’s allegation that she
had been sexually harassed by a doctor. The policy prohibits
‘‘physical, verbal or visual harassment and sexual harass-
ment.’’
On April 1, Cynthia Contreras, an employee, complained
to Clifford that Wallin was harassing her in order to coerce
Contraras to testify on behalf of Wallin’s sexual harassment
claim. Clifford prepared a written warning but did not give
the warning to Wallin until April 7. On June 9, employee
Hazel Pope complained to Brown, her supervisor, that Wallin
had been angry at having to answer Brown’s telephone. Pope
reported that Wallin had upset her by stating that Wallin
would know if Pope told anybody about the incident. Brown
reported these events to Clifford and told Clifford that Pope,
an elderly woman, was very upset. On June 15, Clifford gave
Wallin a written statement describing the incident with Pope.
Wallin told Clifford that she had merely commented that
Brown needed an answering machine or a secretary. She ad-
mitted telling Pope not to say anything about what she had
said and that Pope had answered ‘‘don’t worry.’’ Clifford
asked Wallin to sign the warning and she refused. Clifford
handed Wallin her final check and told her that she was dis-
charged.
Clifford testified that he terminated Wallin because this
was the third incident of employee harassment. In reaching
this decision, Clifford relied on the warnings of March 26,
31, and April 1, 1992. The March 26 and 31 warnings in-
volve the same incident and are duplicative. Clifford did not
rely on the warning of February 28 because he had not
shown the warning to Wallin. No other employee has been
fired under the antiharassment policy, however, one em-
ployee was fired for harassing coworkers before the policy
went into effect. At the time of the discharge in June, the
union organizing campaign had ended.
Wallin’s employment history revealed that she was highly
regarded as a worker. However, she had difficulties in the
past in working with coworkers. Her employee evaluation in
1988 included a comment that she needed to work on her re-
lationship with a fellow employee. Her 1989 evaluation indi-
cated a problem ‘‘in her interaction with others.’’ Wallin’s
1990 evaluation praised her work effort but stated that she
needed to improve her interaction with others. Her 1991
evaluation indicated that Wallin had improved and was no
longer ‘‘tormenting [teasing] fellow employees.’’ During the
relevant time period, Wallin was evaluated by Brown on
March 25, 1992. Wallin received a satisfactory evaluation.
However, Brown commented that Wallin didn’t ‘‘seem to
understand that some people find her strong personality and
openness intimidating.’’ Wallin wrote on the evaluation ‘‘I
may say difficulty with other (sic) but I feel I cooperate. I
feel I can do what I am told (asked).’’ The March 1992 eval-
uation was the only evaluation under Brown’s and Clifford’s
supervision. The earlier evaluations took place prior to their
employment with Respondent.
B. Contentions of the Parties
The General Counsel contends that the Forum was a labor
organization within the meaning of the Act. It further con-
tends that Respondent violated Section 8(a)(2) and (1) of the
Act by dominating, interfering with, and supporting the
Forum. General Counsel argues that Respondent violated
Section 8(a)(3) and (1) by terminating the employment of
Wallin because of her unwanted activities on behalf of the
Union. Finally, the General Counsel argues that Respondent
unlawfully interrogated Wallin, prohibited solicitation on be-
half of the Union, and solicited employee grievances in order
to discourage union activities. Respondent argues that Wallin
was discharged for violations of company policy after re-
peated warnings. It further argues that it did not interfere
with or dominate the employee forum committee.
Analysis and Conclusions
A. Domination of and Assistance to the Forum
Section 2(5) of the Act defines a labor organization as fol-
lows:
any organization of any kind, or any agency or em-
ployee representation committee or plan, in which em-
ployees participate and which exists for the purpose, in
whole in part, of dealing with employers concerning
grievances, labor disputes, wages, rates of pay, hours of
employment, or conditions of work.
In NLRB v. Cabot Carbon Co., 360 U.S. 203 (1959), the
Supreme Court held that an employee committee that dis-
cussed with management various subjects pertaining to work-
ing conditions, wages, or grievances was a labor organization
within the meaning of Section 2(5) even though the commit-
tee had no membership requirements, collected no dues, had
no funds, and had never attempted to negotiate a collective-
bargaining agreement. Accordingly, the Board has broadly
construed the definition of labor organization under Section
2(5). St. Anthony’s Hospital, 292 NLRB 1304 (1989).
In Electromation, Inc., 309 NLRB 990 (1992), the Board
indicated that the definitional elements of a Section 2(5) or-
ganization require (1) employee participation, (2) a purpose
to deal with employers, (3) concerning itself with conditions
of employment or other statutory subjects, and (4) if an
‘‘employer representation committee or plan’’ is involved,
evidence that the committee is in some way representing the
employees.
There is no dispute that employees participated in voting
for committee members and that employees served on the
committee. The express purpose of the Forum was to provide
1086 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
a fair and orderly procedure for airing employee grievances
involving wages, hours, and terms and conditions of employ-
ment. The evidence establishes that the committee dealt with
the Employer regarding employee grievances, a term and
condition of employment. Finally, the evidence establishes
that the forum committee has obtained affirmative action on
some of the grievances it has presented to management on
behalf of employees. I find that the forum committee was a
labor organization whose purpose included dealing with Re-
spondent regarding working conditions within the meaning of
Section 2(5) of the Act.
Respondent suggested and encouraged the formation of the
Forum and implied a willingness to deal with it concerning
grievances. Respondent conducted the election and drafted
the original bylaws of the Forum. Respondent agreed to the
procedures established by the committee for filing griev-
ances. Wheelco Co., 260 NLRB 867 (1982); Eastern Indus-
tries, 217 NLRB 712 (1975); Arrow Specialties, 177 NLRB
306 (1969). Furthermore, the Forum was established imme-
diately after Clifford learned that Wallin was attempting to
organize the employees and that one of her reasons was that
employees had no means to adjust grievances against their
supervisors. Rideout Memorial Hospital, 227 NLRB 1338,
1342 (1977).
Although Respondent interfered with the formation and
administration of the Forum ‘‘it does not automatically fol-
low’’ that Respondent unlawfully dominated the committee
in violation of Section 8(a)(2) of the Act. Texas Bus Lines,
277 NLRB 626 (1985); Spiegel Trucking Co., 225 NLRB
178, 179 (1976). General Counsel failed to prove that Re-
spondent controlled and supported the committee and its
membership.
The committee rewrote and simplified the rules and proce-
dures suggested by Respondent. After two meetings in
Clifford’s office, the forum committee held meetings at times
and places of its own choosing. Clifford instructed the com-
mittee that there should be no participation by administration
or management. The rules and procedures disclaim any man-
agement involvement in the committee. Although the impetus
behind the formation of the Forum emanated from Respond-
ent, there is insufficient evidence that the organization has no
effective existence independent from Respondent or that Re-
spondent controls the structure of the organization.
Electromation, supra, citing Duquesne University, 198 NLRB
891, 892–893 (1972). Accordingly, I find that Respondent
unlawfully interfered with the formation of the Forum but
did not unlawfully dominate the Forum.
B. The Warnings and Discharge
In Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d
899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), the
Board announced the following causation test in all cases al-
leging violations of Section 8(a)(3) or violations of Section
8(a)(1) turning on employer motivation. First, the General
Counsel must make a prima facie showing sufficient to sup-
port the inference that protected conduct was a ‘‘motivating
factor’’ in the employer’s decision. Upon such a showing,
the burden shifts to the employer to demonstrate that the
same action would have taken place even in the absence of
the protected conduct. The United States Supreme Court ap-
proved and adopted the Board’s Wright Line test in NLRB
v. Transportation Management Corp., 462 U.S. 393, 399–
403 (1983).
I find that General Counsel has made a prima facie show-
ing that Respondent was motivated by Wallin’s union activi-
ties in discharging the employee. First, upon learning that
Wallin had been soliciting union authorization cards, Clifford
interrogated Wallin about her union activities. Clifford
banned union solicitations while Wallin was on the timeclock
and solicited grievances with the implication that Respondent
would remedy grievances to avoid unionization. In Wallin’s
5 previous years at working for Respondent she received
only one warning. However, she received three warnings
after her union activities came to light.
The burden shifts to Respondent to establish that the same
action would have taken place in the absence of Wallin’s
union and protected concerted activities. For the following
reasons, I find that Respondent has shown that the warnings
and discharge would have occurred in the absence of union
activity. As mentioned earlier, Wallin had a previous history
of not interacting well with other employees. Although
Wallin had only one warning in her first 5 years with Re-
spondent, she received two admittedly lawful warnings from
Brown in February, one of which concerned the treatment of
a fellow employee. Thereafter, three employees complained
about her conduct. When Clifford first questioned Wallin
about her union activities, he did so in response to a com-
plaint by an employee to her supervisor. Another employee
complained and asked Clifford to intervene when Wallin al-
legedly harassed her about Wallin’s sexual harassment
charge. Finally, the last event occurred when an elderly em-
ployee complained about Wallin’s conduct. None of these
complaints were solicited by management. They were all ini-
tiated by fellow workers.
Wallin’s unwanted conduct was consistent with her past
employment history. There is no evidence that Brown or
Clifford condoned such conduct. The discharge was con-
sistent with a January discharge of an employee for abusive
conduct towards other employees. Finally, at the time of the
discharge, the union campaign had fizzled and the Union was
no longer a problem for Respondent. The record as a whole
convinces me that the discharge would have occurred as it
did whether or not Wallin engaged in union activities.
C. The Independent 8(a)(1) Violations
Interrogation of employees is not unlawful per se. In deter-
mining whether or not an interrogation violates Section
8(a)(1) of the Act, the Board looks at whether under all the
circumstances the interrogation reasonably tends to interfere
with, restrain, or coerce employees in the exercise of their
Section 7 rights. Rossmore House, 269 NLRB 1176 (1984);
Sunnyvale Medical Clinic, 277 NLRB 1217 (1985).
Here, I find that the interrogation tended to interfere with
and restrain Wallin in her organizing activities. First, the in-
terrogation took place in the office of Respondent’s highest
ranking administrative official. The interrogation took place
during a disciplinary meeting at which Clifford expressed an
opinion that it was stupid to bring in a union. Third, Clifford
threatened to discharge Wallin if she solicited for the Union
while on the timeclock. Fourth, Clifford interrogated Wallin
on a second occasion at which he suggested the Forum as
an alternative to unionization. Under these circumstances,
1087MAGAN MEDICAL CLINIC
2 All motions inconsistent with this recommended Order are de-
nied. 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.
3 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
Wallin would reasonably conclude that union activities
would lead to adverse action by Clifford and Respondent.
The evidence reveals that Clifford told Wallin that she
could not solicit union authorization cards while she was ‘‘on
the clock’’ or while he was ‘‘paying her.’’ Such a ban is am-
biguous and could be reasonably construed as including
breaktime and lunchtimes—both traditional nonworking
times. See, e.g., Our Way, Inc., 268 NLRB 394, 395 (1983);
National Semiconductor Corp., 272 NLRB 973 fn. 1 (1984).
Clifford’s edict that Wallin could not harass any employee
at any time on Respondent’s property was also ambiguous in
that no distinction was made between soliciting for the union
and harassment. Such ambiguities must be resolved against
Respondent. Accordingly, I find that Respondent violated
Section 8(a)(1) of the Act.
Clifford interrogated Wallin as to why she thought the em-
ployees needed a union. After learning that Wallin was con-
cerned about treatment by supervisors and the lack of re-
course against supervisors, Clifford suggested an employee
grievance committee. He further offered Wallin the oppor-
tunity of chairing the committee. When Wallin declined the
invitation, Clifford involved her in the election of committee
members. The timing of Clifford’s instigation of the com-
mittee and his offers to Wallin suggest that Clifford was so-
liciting grievances and implying that grievances would be
remedied in order to avoid unionization. Electric Hose &
Rubber Co., 267 NLRB 488 (1983).
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce and
in a business affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. The Union and the Forum are labor organizations within
the meaning of Section 2(5) of the Act.
3. By unlawfully interrogating employees, announcing an
overly broad no-solicitation rule, and soliciting grievances
and impliedly promising to remedy them, Respondent has en-
gaged in unfair labor practices within the meaning of Section
8(a)(1) of the Act.
4. By interfering with the formation and administration of
the Employee Forum Committee, Respondent violated Sec-
tion 8(a)(2) and (1) of the Act.
5. The above unfair labor practices are unfair labor prac-
tices affecting commerce within the meaning of Section 2(6)
and (7) of the Act.
6. Respondent has not otherwise violated the Act.
THE REMEDY
Having found that Respondent engaged in unfair labor
practices, I shall recommend that it be ordered to cease and
desist therefrom and that it take certain affirmative action to
effectuate the policies of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended2
ORDER
The Respondent, Magan Medical Clinic, Inc., Covina,
California, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Interrogating employees about their union beliefs or ac-
tivities.
(b) Telling employees that they may not solicit for a union
during nonworking time such as breaks and lunch.
(c) Soliciting employee grievances and implying that they
would be remedied in order to avoid unionization.
(d) Interfering with the formation of, assisting, or other-
wise interfering with the operation and administration of the
Employee Forum Committee.
(e) 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) Withdraw all recognition from the Employee Forum
Committee unless and until certified by the National Labor
Relations Board as the exclusive collective-bargaining rep-
resentative of the Respondent’s employees.
(b) Post at its Covina, California facilities copies of the at-
tached notice marked ‘‘Appendix.’’3 Copies of the notice, on
forms provided by the Regional Director for Region 21, after
being signed by Respondent’s authorized representative, shall
be posted for 60 consecutive days in conspicuous places, in-
cluding all places where notices to employees are custom-
arily posted. Reasonable steps shall be taken by Respondent
to ensure the notices are not altered, defaced, or covered by
any other material.
(c) Notify the Regional Director in writing within 20 days
from the date of the Order what steps Respondent has taken
to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
1088 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL NOT interfere with the formation of, assist, or
otherwise interfere with the operation and administration of
the Employee Forum Committee.
WE WILL NOT tell employees that they may not solicit for
a union during nonworking time.
WE WILL NOT solicit employee grievances and imply fa-
vorable treatment to avoid unionization.
WE WILL NOT interrogate employees about their union
sympathies and beliefs.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
WE WILL withdraw all recognition from the Employee
Forum Committee unless and until certified by the National
Labor Relations Board as the exclusive collective-bargaining
representative of our employees.
MAGAN MEDICAL CLINIC, INC.