Medical Ancillary Services, Inc.

National Labor Relations Board - Board Decisions

Aug 9, 1972

198 N.L.R.B. 789 (N.L.R.B. 1972)

MEDICAL ANCILLARY SERVICES , INC. 789
Medical Ancillary Services , Inc. and Isabel Gugyela
and Office and Professional Employees Interna-
tional Union, Local 10, AFL-CIO. Cases
7-CA-8827 and 7-CA-8830
August 9, 1972
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS JENKINS
AND-KENNEDY
On March 15, 1972, Trial Examiner Morton D.
Friedman issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel,
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and
brief and has decided to affirm the Trial Examiner's
rulings, findings,' and conclusions2 and to adopt his
recommended Order3 as modified herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner as modified below
and hereby orders that Respondent, Medical Ancil-
lary Services, Inc., Troy, Michigan, its officers,
agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's recommended
Order, as so modified: i
1. Substitute the following as paragraph 1(c):
"(c) Engaging in retaliatory and discriminatory
harassment of employees for the purpose of discour-
aging union membership and activities."
2. Substitute the following for paragraph 2(a):
"(a) Offer Isabel Gugyela immediate and full
reinstatement to her former job or, if that job no
longer exists, to a substantially equivalent position,
without prejudice to her seniority or other rights and
privileges previously enjoyed, and make her whole
for any loss of earnings she may have suffered by
reason of the discrimination against her in the
manner set forth in the section of this Decision
entitled `The Remedy.' "
3. Substitute the attached notice for the Trial
Examiner's notice.
i The Respondent has excepted to certain credibility findings made by
the Trial Examiner It is the Board's established policy not to overrule a
Trial Examiner's resolutions with respect to credibility unless the clear
preponderance of all of the relevant evidence convinces us that the
resolutions were incorrect Standard Dry Wall Products, Inc, 91 NLRB 544,
enfd 188 F 2d 362 (C A 3) We have carefully examined the record and
find no basis for reversing his findings
We agree with the Trial Examiner's findings that employee Gugyela was
discriminatorily discharged in violation of Sec 8 (a)(l) of the Act and that,
in the context of this case , postdischarge statements made by her did not
constitute sufficient cause to justify Respondent 's continuing failure to
reinstate her Gugyela has, therefore, a continuing right to be reinstated in
her former or a substantially equivalent position Under these circum-
stances, we need not , and do not, pass upon the Trial Examiner's additional
finding that Respondent 's August 1970 refusal to employ Gugyela
constituted a violation of the Act
2 We agree with the Trial Examiner 's findings that Respondent 's actions
in searching the desks of employees Passmore and Tavtigian and in
removing material from the bulletin board were violative of Sec . 8(a)(1) of
the Act However, in our view, the record does not support the Trial
Examiner's conclusions that the desk search was designed to discover
prounion material or that the removal of bulletin board items was a change
in working conditions Rather , we conclude from the timing and other
circumstances set forth by the Trial Examiner that these actions of
Respondent constituted retaliatory and discriminatory harassment of
known prounion employees, undertaken for the purpose of discouraging
union membership and activities and, therefore , were violative of the Act.
3 In the absence of exceptions thereto, we adopt pro forma the Trial
Examiner's dismissal of the complaint 's allegations that employees Bradley,
McIntosh, Johnson, and Salimino were discharged in violation of the Act
For the same reason , we do not pass upon the Trial Examiner's failure to
make findings with respect to the complaint 's allegation that certain
conduct of Respondent found by the Trial Examiner to be violative of Sec
8(a)(1) of the Act was also violative of Sec. 8(a)(3).
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT give the impression that we are
keeping our employees' union or concerted
protected activities under surveillance.
WE WILL NOT engage in retaliatory and
discriminatory harassment of employees for the
purpose of discouraging union membership and
activities.
WE WILL NOT tell our employees that we have
discharged any employee for engaging in union or
protected concerted activities.
WE WILL NOT advise our employees that we will
give them a lesser performance rating for engag-
ing in union or protected concerted activities.
WE WILL NOT discharge or in any other manner
discriminate against employees because of their
concerted activities for the purpose of mutual aid
or protection.
WE WILL NOT discourage membership in Office
and Professional Employees International Union,
Local 10, AFL-CIO, or any other labor organiza-
tion, by changing employee working conditions or
by placing employees on probation or otherwise
discriminating against them in regard to their hire
or tenure or conditions of employment or any
term or condition of employment.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
198 NLRB No. 109
790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
exercise of their rights to form , join , or assist or be
represented by Office and Professional Employ-
ees International Union, Local 10, AFL-CIO, or
any other labor organization , to bargain collec-
tively with representatives of their choosing, or
engage in other concerted activity for the purpose
of collective bargaining or other mutual aid or
protection , or to refrain from any or all such
activity.
WE WILL offer to Isabel Gugyela immediate
and full reinstatement to her job or, if that job no
longer exists, to a substantially equivalent posi-
tion, without prejudice to her seniority or other
rights and privileges previously enjoyed, and we
will make her whole for any loss of earnings she
may have suffered as a result of our discrimina-
tion against her.
All our employees are free to become or remain, or
refrain from becoming or remaining , members of
Office and Professional Employees International
Union, Local 10, AFL-CIO, or any other labor
organization.
MEDICAL ANCILLARY
SERVICES, INC.
(Employer)
Dated By
(Representative) (Title)
consolidated complaint, the Respondent, while admitting
certain of the allegations, denied the commission of any
unfair labor practices.
Pursuant to notice, a hearing in this case was held before
me at Detroit, Michigan, on November 8-11, 1971. All
parties were represented and were afforded full opportuni-
ty to be heard, to present relevant evidence, to present oral
argument, and to file briefs. Oral argument was waived.
Briefs were filed by counsel for the General Counsel and
the Respondent. Upon consideration of the entire record
herein, including the briefs of the parties, and upon my
observation of each of the witnesses as they appeared
before me, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, a Michigan corporation, maintains its
principal office and place of business in the city of Troy,
Michigan, where it is engaged in the business of providing
management services for physicians and hospitals. During
the fiscal year ending July 30, 1971, a representative
period, the Respondent performed services valued in
excess of $500,000, of which services valued in excess of
$50,000 were performed for clients located in States other
than the State of Michigan.
It is admitted, and I find, that the Respondent is an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, 500 Book Building, 1249 Washington
Boulevard, Detroit, Michigan 48226, Telephone
216-522-3715.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MORTON D. FRIEDMAN, Trial Examiner: Upon a charge
filed :n Case 7-CA-8827 on July 14, 1971, by Isabel
Gugyela, herein called Gugyela, and a charge filed in Case
7-CA-8830 on July 14, 1971, by Office And Professional
Employees International Union, Local 10, AFL-CIO,
herein called the Union, the Regional Director for Region
7 of the National Labor Relations Board, herein called the
Board, issued a consolidated complaint on August 26,
1971, against Medical Ancillary Services, Inc., herein
called the Company or the Respondent, alleging violations
of Section 8(a)(1) and (3) of the National Labor Relations
Act, herein called the Act. In its duly filed answer to the
II. THE LABOR ORGANIZATION INVOLVED
It is admitted, and I find, that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Issues
The Union began an organizing drive of the Respon-
dent's employees during the month of May 1971. Thereaf t-
er, it filed a representation petition with the Board 1 which
resulted in a Board-conducted election on July 8, 1971, in
which the Union received a majority of the votes. The
complaint alleges that before the union campaign began,
during the campaign and after the election, the Respon-
dent, through various officials and supervisors, conducted
a discriminatory campaign among its employees to
discourage union and concerted protected activity which
campaign consisted of various acts of interference, coer-
cion, and restraint, unlawful discharges, and discriminato-
ry changes in working conditions. The Respondent either
denies that certain of the alleged unlawful acts ever
occurred or contends that the action taken in the other
instances was necessitated and justified solely for good
business and economic reasons, with no discriminatory
motivation.
1 Case 7-RC-10583
MEDICAL ANCILLARY SERVICES, INC.
B. The Discharge of Isabel Gugyela
1. The supervisory issue
The Respondent contends that regardless of the question
of whether Gugyela was discriminatorily discharged, in
any event , Gugyela was a supervisor and that therefore the
Respondent could not have committed a violation of the
Act in discharging her. Thus, there is presented the
threshold issue of Gugyela 's status as of the date of her
discharge.
Gugyela was hired on August 28, 1968, as a file clerk.
After being promoted to successively more difficult and
important positions , Gugyela was finally appointed, in
October 1970, to the position of quality control coordina-
tor and assistant to the director of the claims department.
At the time of her discharge , Gugyela was earning $600 a
month . Five or six other girls in that department who were
admittedly not supervisors and were classified as evalua-
tors were receiving the same amount . Gugyela did not
receive an increase in salary when she became quality
control coordinator . In all her jobs , and in her most recent
job, Gugyela punched a timeclock , as did every employee.
Supervisors did not . Moreover, Gugyela lunched in the
cafeteria in the basement where she ate with other
nonsupervisory employees . According to Gugyela, there
was a separate dining area for management people. She
was not permitted to eat at that facility.
At the time of her discharge on January 15, 1971,
Gugyela reported to Norma Harvey , her supervisor and
head of the claims department. During her tenure of
employment with the Respondent, in the position of
quality control coordinator, Gugyela never hired, trans-
ferred, suspended, laid off , recalled , promoted , discharged
or disciplined employees , or adjusted employees ' griev-
ances. Gugyela spent much of her time performing the
work of an evaluator . However , for certain periods each
day she checked the work of other employees in the
evaluation department for mistakes . She would check
billing data , typing, and other errors which might appear
on claim sheets. However , although she checked these
errors and reported the same to the head of the depart-
ment, Gugyela never did recommend any employees for
corrective action . Nor did she ever attend supervisory or
management meetings although Norma Harvey did.
Gugyela was scheduled to work from 8 a.m. to 5 p.m. and
was paid for overtime when she worked overtime.
However , management and supervisory employees worked
on a basic salary and were not paid for overtime ; at least
not to Gugyela 's understanding.
As part of her job as quality control coordinator,
Gugyela kept a list of mistakes on a sheet of paper with the
person 's name thereon who made the mistake . She did this
every day. About once a week she would talk to the
employees about their mistakes . However, she only did this
when she was asked to do so by Harvey. In the 3 weeks
prior to her discharge on January 21, Gugyela shared an
office with Harvey.
There is much testimony in the record concerning
791
Gugyela 's authorization of overtime. Respondent intro-
duced into evidence timecards of employees in the claims
department showing that Gugyela had initialed the
timecards and authorized the same . However , it is also
apparent from the record that this overtime was not
authorized , as such , by Gugyela but was , for the most part,
work performed at home by these girls whose overtime was
then recorded on an honor system . The girls reporting how
much time they had spent at home on Respondent 's work.
It was at this point that Gugyela was asked to initial the
cards and indicate that she had authorized the overtime.
Gugyela states emphatically that such authorization as she
did exercise was delegated to her by Norma Harvey, or
other supervisors . In other words , it would appear that her
authorization of overtime was mere routine and did not
indicate that she exercised judgment in selecting those who
would work overtime nor indicate how much overtime they
would work . One time , during a 3 -day absence of Harvey,
Gugyela did authorize overtime on her own initiative.
It would appear , although there were discharges from the
department as a result of Gugyela 's reporting errors on
work of the employees of the department to the supervisor
of the department , that Gugyela did not make recommen-
dations for discharge nor did she participate in the
decisions to discharge.
So far as direction of the other employees of the
department is concerned , Gugyela did , upon occasion,
point out to the employees the mistakes they made.
Moreover , Gugyela was, upon occasion , asked which
employees were to be assigned certain kinds of work. It
was only the supervisor who ultimately made up the lists of
assignments and decided which accounts would be given to
each employee.2
From the fall of 1967 until August 1970 , Yvonne Tilwick
was the supervisor of the claims department . During some
of that period of time , Gugyela assisted her in certain
functions . Thus, when Tilwick was supervisor she was
absent occasionally. On these occasions she left instruc-
tions to Gugyela as to how to manage the department.
These instructions were to make notes of any employees
that were absent or tardy ; outline the daily functions in the
morning report to be handed to Maria Maraveleas, vice
president of the Company ; and more or less oversee the
department in Tilwick 's absence .3 According to Tilwick,
the reason she appointed Gugyela as her assistant was
because Gugyela was more capable than other employees
and because she could help oversee the area and help with
the morning reports. If the girls had any questions,
Gugyela could help them and assist them in those areas of
their work in which they had doubts . However , according
to Tilwick, Gugyela never assigned work to the employees
unless Tilwick was absent, in which case , Gugyela might
assign work . However , these occasions were very infre-
quent . This was so because the employees knew more or
less what to do in their jobs. All Gugyela would do in
Tilwick 's absence was to see that nothing was left undone.
Tilwick told the other employees in the department that
Gugyela was her assistant and that she was to oversee the
operations of the department . However , this more or less
2 All of the foregoing from the testimony of Gugyela, which I credit.
3 From the testimony of Tilwick, which is uncontradicted.
792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
consisted of Gugyela's helping the employees do their
work. This was because of her experience. Thus, Gugyela
would help the girls solve their work problems, thus
eliminating the necessity of the employees bothering
Tilwick when there was a question to be asked. Gugyela,
however, did not report to Tilwick on the performance of
the other employees' work except to routinely list mistakes.
At the most, Gugyela would oversee work for a total of I
hour per day while the rest of the day she spent doing her
own work of evaluation.
Although Gugyela's complaints with regard to Yvonne
Tilwick's management of the claims department resulted in
the demotion of Tilwick to a nonsupervisory position, it is
clear from the record that Gugyela made her complaints to
higher management not as a representative of such
management, but rather as a spokesman for other
employees who were likewise disenchanted with the
operation of the department by Tilwick.
Although Gugyela might, at first blush, seemed to have
exercised the authority of a supervisor and seemed to
possess the indicia of supervisory authority, a close study
of her actual authority leads to the conclusion that
Gugyela was a highly skilled and important employee in
the claims department, but that such direction of other
employees which was authorized to Gugyela to perform
was of a routine nature, and did not require the exercise of
independent judgment. It is concluded that the authority
which was exercised by Gugyela was merely derived from
job experience and that the direction which she exercised
was that of an experienced employee which is customarily
exercised over less experienced employees and is routine in
nature. The Board has held that an individual who
exercises such a routine form of control or authority is not
a supervisor.4
Moreover, it is concluded from all of the foregoing
testimony that Gugyela was a mere conduit for the
conveying of routine and standardized instructions from
the head of the claims department to the employees.
Additionally, although Maria Maraveleas testified that
Gugyela, on infrequent and sporadic occasions, relayed to
management certain complaints against fellow employees,
such complaints were investigated independently by
management and were not relied on by management for
the taking of any action against the employees complained
of. Thus even in this respect there is no indicia of
supervisory authority with regard to Gugyela.
Accordingly, and on the basis of all of the foregoing, it is
concluded, and I find, that Gugyela was not a supervisor
within the meaning of the Act and that, rather, she was an
employee within the meaning of the Act and entitled to the
protection of the Act.
2. Gugyela's discharge
Gugyela testified that on January 15, 1971, at a time
when her supervisor, Norma Harvey, was absent, Gugyela
was approached by six or seven employees of the claims
department who told Gugyela that they were complaining
because they had not received a wage increase which had
been promised them when they were hired. Gugyela told
these employees that she could do nothing about adjusting
their grievance and referred them to Personnel Director
Bruce Schulte. Gugyela believed that she had the authority
to do this in the absence of Harvey. The employees then
went to Schulte who related this matter to Elizabeth
Rohrmaier and Maria Maraveleas. While Rohrmaier was
discussing the matter with Maria Maraveleas, Peter
Maraveleas, the president of the Respondent, approached
and, overhearing the conversation, said that he would take
care of it. Thereafter, Gugyela was approached by Peter
Maraveleas who asked her by what authority she had
referred the employees to Schulte. When Gugyela ex-
plained to Peter Maraveleas that she thought she had the
authority in the the absence of Harvey and because she felt
that the protest might lead to a failure of the employees
involved to perform their services, Maraveleas began to
shout and, according to Gugyela, told her "I know who the
troublemaker is. You are nothing but a damn bitch and
you have no business interfering with management
problems. You stabbed Yvonne Tilwick in the back. I
heard you were trying to get a union in the Company."
After this, Gugyela was told by Maraveleas that he was
going to throw her down the stairs and out of the premises.
Gugyela answered that she was leaving and that she did
not have to sit there and listen to what Maraveleas was
saying. Later, when she was picking up her belongings
from her desk, Peter Maraveleas told Gugyela to "get out
of the Company and never set foot in it again."
According to Peter Maraveleas, the events occurred
somewhat differently. In his version, he asked Gugyela
why she was doing these things when the director of the
department was absent and asked her why these people
could not wait until Monday morning upon the return of
Harvey. According to Maraveleas, he explained to Gugye-
la that it was the policy of the Respondent to relay all
complaints and grievances to the various department
heads. If the department heads could not satisfy the
complaint, the matter was then, and only then, referred to
higher management. To this explanation, testified Marave-
leas, Gugyela answered "If this is the policy, I quit."
Maraveleas replied "I accept your resignation." Gugyela
then said that she was going to have to go home to bring
back a typewriter which she had borrowed. Maraveleas
said "never mind about that." He told Gugyela to give the
typewriter to one of the girls she knew on the following
Monday. Gugyela began to put her personal things in a
box and Maraveleas carried the box to the elevator. That,
according to Maraveleas, was the end of the matter on that
day.
There thus arises the question of whether Gugyela was
discharged or whether she quit. There is testimony in the
record which would seem to resolve this issue . Yvonne
Tilwick, who was at one time the director of the claims
department and Gugyela's superior, and whose position as
such supervisor was withdrawn by the Respondent at the
behest of Gugyela and others in the claims department,
testified that within a short time , perhaps a day or so after
Gugyela's discharge, she had a conversation with Peter
+ Sanborn Telephone Company, 140 NLRB 512, 515, G C Murphy
Company, 171 NLRB No. 45
MEDICAL ANCILLARY SERVICES, INC. 793
Maraveleas. In this conversation, Maraveleas told Tilwick
that he had fired "the troublemaker" and she was no
longer in the Company. He said that was the end of the
troubles. He also told Tilwick that Gugyela was the
primary force for stabbing Tilwick in the back. He also
said that Gugyela was responsible for the talk about a
union coming into the Company.5
Tilwick further testified that, on one occasion prior to
Gugyela's termination, she was asked by Peter Maraveleas
"Have you heard Liz [referring to Gugyela] talking about
the Union?"
Gugyela testified that on January 18, after her discharge,
she had a conversation with Elizabeth Rohrmaier, a vice
president of the Respondent. In that conversation Gugyela
asked Rohrmaier the reason why Gugyela had been
discharged. Rohrmaier answered that she understood that
Gugyela was "putting her nose into too many things that
were none of her business" and whenever there was trouble
Gugyela's name was mentioned. She also said that they
knew that Gugyela was trying to get a union into the
Company,6
As further evidence of what occurred on January 15, the
date of Gugyela's leaving, the Respondent Company
introduced into evidence a statement signed by Bruce
Schulte, addressed to the Michigan Employment Security
Commission, to the effect that Gugyela had left the
employment of Medical Ancillary Services because she
interfered in management decisions which were not in her
jurisdiction on several occasions.
In contravention of all of the foregoing, the Respondent
introduced testimony to the effect that Gugyela, although
very intelligent and a very hard worker who was also
extremely amibtious, was by the same token extremely
emotional. According to Respondent's witnesses, Gugyela
had upon numerous occasions threatened to quit. The most
recent such occasion being only several weeks before her
ultimate leaving the firm. On this occasion Maria Marave-
leas had come down to the department upon being called
and found Gugyela crying and stating that she would quit
because the girls in the department had been too much for
her and had complained that they were not permitted to
wear pantsuits. When Maria Maraveleas assured Gugyela
that the contrary was true and told Gugyela to dry her
eyes, Gugyela was persuaded to remain in Respondent's
employ.
Although the foregoing testimony was elicited for the
purpose of showing the propensity of Gugyela to quit
whenever presented with a situation of stress, I conclude
and find that Gugyela was discharged. As noted above, the
testimony of Tilwick with regard to her postdischarge
conversation with Peter Maraveleas points to the fact that
Maraveleas discharged Gugyela for, among other things,
5 Although on cross-examination Tilwick did not relate this event in
exactly the same words, I am convinced that her testimony on direct was the
testimony she meant to give and that this was the manner in which the event
occurred Tilwick had no reason to be enamored of Gugyela, who had
caused her to lose her supervisory position. Moreover, Tilwick's testimony
on both direct and cross-examination was given in a forthright and
straightforward manner and I was much impressed with both her
intelligence and her ability to relate the facts clearly Accordingly, I credit
Tilwick over Peter Maraveleas' version of this conversation
6 By reason of the fact that I have already credited Gugyela in other
respects, and I have also credited the testimony of Tilwick, I find that
his belief that Gugyela was trying to introduce a union into
the Respondent's employee complement . Supporting this
testimony is Gugyela's credited testimony of her conversa-
tion with Rohrmaier to the effect that the Respondent
thought that Gugyela was bringing a union into the shop.
Although it is entirely probable, and Gugyela's testimony
certainly confirms that Peter Maraveleas was more than
merely annoyed at the fact that Gugyela had overstepped
the bounds of her authority, there is presented the
additional reason for her discharge, that Maraveleas
thought at the time, and so stated, that Gugyela was trying
to bring a union in. Although it is true , as established by
the record, that the union activity in the Respondent's shop
did not begin until some time in May, some 4 months after
Gugyela's discharge, there is no question that there was
talk of unionization among the Respondent's employees
about the time that Gugyela was discharged. Although
Gugyela herself admitted that she was not engaged in any
union activity at the time she was let go, the Board has held
upon many occasions that where an employee is dis-
charged because his employer believes him to be engaged
in concerted or union activity, the discharge is violative of
the Act whether or not such belief is well founded. The
instant case presents just such a situation . Among the
reasons for the discharge, as stated by Maraveleas to
Gugyela, and by Rohrmaier to Gugyela, and by Marave-
leas to Tilwick, was the fact that Maraveleas believed that
Gugyela was engaged in union or concerted activity.?
Moreover, Gugyela was known as a leader among the
Respondent's employees. Thus, approximately a month
before her discharge, Gugyela had caused the Respondent,
at the behest of her fellow employees in the claims
department, to hold a Christmas party in the department
rather than in a room adjoining the company cafeteria.
Also, in the matter which brought about Gugyela's
discharge, she was acting on behalf of the employees in
sending them to the Respondent' s personnel director for
the purpose of airing their grievance with regard to their
promised pay increases. Such activity is concerted and
protected. This engaging by Gugyela in protected concert-
ed activity brought about her discharge.
Accordingly, I find and conclude that Gugyela was
discriminatorily discharged in violation of Section 8(a)(1)
of the Act.
3. Postdischarge events involving Gugyela
Some time after Gugyela's discharge, Peter Maraveleas
was informed that Gugyela had called several doctors and
Blue Cross and Blue Shield and told them that the
Respondent had falsified records and diagnoses, cheating
on the fees charged by the Respondent on behalf of the
Gugyela's version of the telephone conversation with Rohrmaier is more
reliable than the version given by Rohrmaier who denied that there was any
mention of union organization in their conversation According to
Rohrmaier, she was under the impression at that time that Gugyela had
been discharged because Peter Maraveleas had told her that they were nd of
the troublemaker but she did not realize that he did not state that Gugyela
was discharged and she merely assumed that Gugyela had been discharged
not knowing the full account of what had happened.
7 See Ridge Tool Company, 102 NLRB 512, 513, Winkel Motors, Inc, 178
NLRB 627, and Nursing Centers, Inc d/b/a Three Fountains Nursing Center,
184 NLRB No 29
794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
physician to the patients. Maraveleas denied that any such
practices ever occurred and that, in fact in the case of one
doctor, an audit was made in his account and the account
was found to be above reproach. Gugyela, on the other
hand, testified that these allegations that she made were
true. Nevertheless, in July 1971, Peter Maraveleas, by his
own admission, had considered Gugyela for reemployment
as a supervisor in a new department that was being set up.
This occurred after Gugyela's alleged accusing the Respon-
dent of cheating. Thus, it would seem that Maraveleas did
not put much stock in the alleged accusations made by
Gugyela and had, in effect, condoned her actions.
However, according to Maraveleas, when Gugyela was
asked to come to the Respondent's facility to make
application for the new job, she told the receptionist, "Pete
is bringing me back to work now because he figures since
he has to pay me back for all the months I did not work,
that he might as well get his money back." For this reason
Maraveleas refused to consider Gugyela for reemployment.
Respondent relies on the foregoing to defend its actions
in refusing to reinstate or rehire Gugyela. Evidently the
Respondent also contends that because of the foregoing
Gugyela would not be eligible for reinstatement or
backpay. However, as noted above, Respondent' s action in
considering Gugyela for reemployment in July, in effect,
constituted a condonation of Gugyela's actions in relaying
to customers of the Respondent that the Respondent had
been cheating. Moreover, I do not find that Gugyela's
statement to the receptionist to the effect that Maraveleas
was considering her for reemployment only for the purpose
of diminishing any possible backpay constituted sufficient
reason to preclude an order of reinstatement and backpay
insofar as Gugyela is concerned. Whether or not the
statement made by Gugyela was true, it was not so
damaging to the Respondent as to constitute sufficient
cause to refuse reinstatement to Gugyela.
Accordingly, I find and conclude that the Respondent's
continued refusal to reinstate or reemploy Gugyela
constituted additional violations of Section 8(a)(1) of the
Act.
The complaint also alleges and counsel for the General
Counsel contends that Peter Maraveleas' remark to Tilwick
that Gugyela had been discharged and that Gugyela was
responsible for the talk about a union coming in had a
chilling effect upon employees to the extent that it tended
to dissuade employees from engaging in union or concert-
ed activities under penalty of discharge. The Respondent
argues that this remark could not have been coercive in
that the Union won the election held in July.
It is concluded that Respondent's argument is without
merit. It requires no citation of authority to support the
Board's often held conclusion that it is not necessary to
show actual adverse effect on employees in such cases if
the mere uttering of the remark would have a natural
tendency to coerce. It is found in the present instance that
Peter Maraveleas' remark to Tilwick had such tendency
and it was therefore coercive in violation of Section 8(a)(1)
of the Act.
C. Impression of Surveillance
As heretofore related, the Union began an organizational
drive among the Respondent's employees in late May 1971.
Thereafter, the first organizational meeting took place
around the first part of June. The day after the first
meeting, Peter Maraveleas spoke to Gloria Passmore, an
employee in the claims department. He told Passmore that
he was aware that the employees had started a union and
that there was a union movement going on.8
The Respondent contends that this remark by Marave-
leas was merely casual and fell far short of a statement that
would give any reasonable person the impression that
management was checking on union activities or meetings.
However, in the context of the other unfair labor practices
heretofore found, and hereinafter found, it cannot be
concluded that this was a mere casual, isolated incident
that could have no effect upon the employee's conclusion
that management was checking on their union activities
and meetings; Accordingly, I find and conclude that this
remark of Maraveleas constituted the impression of
surveillance of union activities and meetings and therefore
violated Section 8(a)(1) of the Act.
D. The Events of July 9, 1971
1. The testimony
As heretofore noted, the Board conducted an election
among the Respondent's employees on July 8, 1971, which
the Union won. On July 9, the Respondent took a number
of actions which the General Counsel alleges constitute
violations of the Act. Thus, shortly after 9 a.m. on July 9,
Peter Maraveleas entered the office of the claims depart-
ment and approached the desk of Mary Ann Tavtigian, an
evaluator who had been employed by the Respondent for
approximately 5 years and who was the union observer at
the election and the chief steward of the Union; In an
earlier conversation with Maria Maraveleas, Tavtigian had
told Maria Maraveleas that she was the chief steward.
When Peter Maraveleas came to Tavtigian's desk, he
opened it, turned to her, and told her to take everything
out of her desk except that which pertained to her work.
Peter Maraveleas then approached the desk of Glona
Passmore, also a union steward, and gave the latter similar
instructions. None of the other employees present were
requested to remove articles from their desks. Both
Tavtigian and Passmore testified that never before this had
they ever been informed of, nor did they have knowledge
of, any company rule to the effect that they could not keep
personal belongings in their desks.
After the foregoing instructions, Peter Maraveleas
approached a bulletin board that was on the wall of the
room and began to remove personal items from the
bulletin board. He even removed a posted vacation
schedule. Passmore and Tavtigian testified that the
employees had posted personal momentos on this board
for a long period of time, in fact they had used this bulletin
board before they moved into the building that they
occupied at the time of the events herein . According to
" From credited testimony of Passmore, which was undenied by
Maraveleas in testifying
MEDICAL ANCILLARY SERVICES , INC. 795
them , there was no prior occasion when management
informed them that they were not to use the bulletin board.
Nor were there any similar occasions when anyone from
management specifically removed postings from the
bulletin board.
After removing the items from the bulletin board,
Maraveleas left the room but soon came back . This time he
approached Tavtigian 's desk once again . He opened her
desk drawer and observed a deck of playing cards therein.
Maraveleas picked up the playing cards and told Tavitigi-
an that she could claim them at 4:30 when she left for the
day and that there was to be no more of that.
Tavtigian testified that she had kept playing cards in her
desk for 6 to 8 months before this occasion.
However , on cross-examination Tavtigian admitted that
she had been warned against playing cards prior to this
occasion . Thus, about a week before July 9 , Tavtigian was
playing solitaire at her desk and Peter Maraveleas told her
that there was to be no more of this. This occurred during
the morning break . Tavtigian immediately picked up the
cards and put them in her drawer and that was the last
time she touched them . Moreover, Tavtigian admitted that
she had knowledge of the fact that prior to July 9 and upon
various occasions Maraveleas did inspect the desks of the
employees . She said that she thought he was most likely
looking for food . Furthermore , Tavtigian also admitted
that Peter Maraveleas had mentioned that he had found
knives in some of the employees ' desks. However, this
occurred the first week in September , long after the July 9
incident . However , Maraveleas did talk numerous times
about food in desks prior to July 9.
In explaining his actions of that day , Peter Maraveleas
did not deny that the events with regard to the cards or the
bulletin board occurred . However , he testified , and in this
he was supported by his wife , Maria Maraveleas , that on
the day of the election , shortly after the election was over,
Maria Maraveleas heard a great deal of hubbub at the time
the poles closed . She heard voices and sound and became
rather apprenhensive . At approximately 4:30 p.m. she
heard a blood curdling scream and became quite upset.
Subsequent to that , Elizabeth Rohrmaier came into
Maria's office and told her the results of the election. Then
Maria Maraveleas heard horns honking, looked out and
saw some of the employees making fist -like gestures. At
that time , rumors were wild in the Company and Maria
Maraveleas heard that there might be a strike.
Peter Maraveleas testified that when he arrived home
from an out-of-town trip on the night of July 8, after the
election , these matters were related to him by Maria
Maraveleas . He testified that Maria Maraveleas also told
him that some of the employees were threatening union
members. Because he did not have experience with this
type of occurrence , Peter Maraveleas became apprehen-
sive . Therefore , that very night he called Elizabeth
Rohrmaier at her home and asked her to call two
administrators , Walter Punder and Bruce Schulte , and ask
them to be on the premises the following morning early for
the purpose of observing in the hallway of the department
in case there was any difficulty.
The next morning Peter Maraveleas arrived at the
Respondent 's facility about 7 a in. He did so because he
was concerned about the safety of some of his employees.
After arriving at the office he went to some of the desk
drawers and into the storage area and inspected approxi-
mately every shelf in the storage area . He did this,
according to Maraveleas , because he was concerned that
there would be weapons . After that he went to the
evaluation area where Passmore and Tavtigian worked and
checked their desks. He also removed some articles from
the bulletin board. He admitted that he did not inspect
anyone else 's desk drawers. This was because he assumed
that if there was going to be any violence of any type it was
going to be primarily concered with Tavtigian and
Passmore and would be visited upon these two people.
Therefore he was concerned that these two people might
have weapons in their desks. However , he admitted he
found no weapons.
Peter Maraveleas further testified that he had conducted
desk searches for some time in the past , as long as a year
before the events herein . The reason he had done this was
because occasionally food was left by the employees in
desk drawers which became rotten and caused bad odors
in the working areas. Moreover , at one time , there had
been a grudge fight between two of the employees and he
had found a knife in one of the desk drawers . In addition,
at one time he had found what he thought was narcotics in
one of the desk drawers . He felt that inspection was
necessary for the safety of the employees and the good of
the Respondent . Accordingly , there was nothing novel
about the desk search that he made on July 9. However, he
admitted, on cross-examination , that he knew who the
union leaders were , or who he considered them to be. They
were , according to him , Mary Ann Tavtigian and Gloria
Passmore and another girl, Alicia Little. However, it is
noteworthy that in his testimony Peter Maraveleas did not
explain the fact of his removal of the articles from the
bulletin board or the reason why he did so.
The events of July 9 were not limited to the activities of
Peter Maraveleas. On that day, in the early morning, Fran
Maiers held a meeting of the people in her department.
Maiers instructed the employees that the Union had won
the election and said that it was unfortunate because some
people did not want it . Then she said "It's time to get back
to work and from now on there will be no talking or asking
any questions ." According to Tavtigian , she meant that
there would be no talking between the employees or asking
of questions . According to Passmore , Fran Maiers stated
that there would be no goofing off and talking among the
employees and that if there were any questions to be asked
she would relay them to the people whom the employees
wanted to talk to.
Both Passmore and Tavtigian testified that Maiers also
stated that there would be no more getting ready to go
home at 4:20 p . m., at which time employees had been
getting their desks straightened out; that from now on they
had to work until 4:30. Maiers emphasized that cleanup
time was to start at 4:30 because they are paid to work
from 8 : 30 to 4:30. Both Tavtigian and Passmore stated that
they had always been permitted , prior to this, to talk fairly
freely among themselves , although there had been repri-
mands for excessive talking . Moreover , they both testified
that they had always been permitted a period of time
796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
before 4:30 in which to clean up their desks and get ready
to leave at 4:30.
In testifying, Maiers denied that she told the employees
that they had to clean off their desks at 4:30. What she did
tell them, was that their working hours were from 8 until
4:30 and that she expected them to work up until that time
and that at 4:30 they should not be sitting around waiting
for the buzzer to ring.
Masers further testified that she told the employees that
they were behind in their work in the department and'she
felt that because of the unnecessary conversation by both
parties during the union campaign and election that the
decision had been made that the unnecessary talking
should be stopped and the employees should get back to
work. She stated that she had held many such meetings
before the election and since and that she often reprimand-
ed employees both before and after the election for
excessive talking. If they were standing around and talking
she insisted they go back to their work stations and work.
She reprimanded them for talking before the union
campaign and she had done the same after the campaign
and she had never allowed employees to stop working prior
to 4:30.
In support of this testimony, Elizabeth Rohrmaier
testified that there was a company policy to the effect that
employees do not talk to each other during working hours
unless it is job related and questions have to be directed to
the supervisors but not to the other employees. If there is
any excessive talking it is the supervisors' role to step in
and stop it. Nor is there any set company policy as to
cleanup time. There is no such thing as cleanup time as
such. The policy is that an employee has to leave her work
station in perfect order. The punching out time is 4:30 and
that is quitting time.
At approximately 1:30 in the afternoon of July 9, Mary
Ann Tavtigian was summoned to the office of Personnel
Director Bruce Schulte. She was accompanied by her
supervisor, Fran Maiers. When they arrived in Schulte's
office, Schulte told Tavtigian that if people were allowed to
play cards other people would get the impression that
gambling was allowed in the office and it would not be
good for the Respondent; that it would be better not to
play cards. Schulte had a green sheet with a statement on it
saying that Tavtigian agreed not to play cards or have
gambling paraphernalia in her possession; and if she did
she would be dismissed. Tavtigian had to sign this
statement . Thus was Tavtigian placed on probation on that
day.
Tavtigian testified that prior to July 9 there were no
similar cases and she never had to sign anything about
playing cards nor was she ever called to Schulte's office
concerning playing cards. However she did admit that
prior to July 9 there were conversations about the right to
play cards. This first occurred about 6 to 8 months prior to
July 9. In approximately November 1970, at lunchbreak,
instead of going to lunch, Tavtigian and two other girls
played pinochle. Sometimes at coffeebreak time they
would also play pinochle. Sometimes Peter Maraveleas
would joke around about card playing but he did not say
too much. He did say, however, that they should not play
cards. Once he stopped them from playing cards but he did
so in a joking manner . Then, approximately in the
beginning of May he told them again that they were not to
play cards. However, Tavtigian further testified that before
July 9 she was never told she would be discharged if she
was caught playing cards or having cards in her desk.
Maraveleas also testified that he had talked to Tavtigian at
least three times before and advised her to please stop
playing cards . On the third occasion he told her she was an
older employee and that if younger employees saw her they
were apt to gamble away their paychecks. After he took the
cards away from Tavtigian on July 9, Peter Maraveleas
instructed Schulte to tell Tavtigian that if she brought any
gambling paraphernalia into the office she would be
terminated.
When Gloria Passmore came into the office on the
morning of July 9, her timecard was missing and was still
missing at lunchtime . Passmore became concerned about
it. Then , about 2 o'clock in the company of Fran Maiers,
she was called to Bruce Schulte 's office . Schulte told her
that they were reviewing peoples' records and they were
beginning to enforce new rules. Schulte told Passmore he
had received the records of tardiness . He told Passmore
that she had been late nine times since January 1971. Then,
he said , "We are going to enforce some of the things that
we have been planning to enforce regarding absenteeism."
He showed Passmore a list of the dates that she had been
tardy. Passmore stated that it seemed rather peculiar that
this would happen the day after the election . Schulte said
that he was not picking on her that it had been something
they had been trying to enforce for quite some time.
Finally, he told Passmore that if she was tardy one more
time in the next 60-day period she would be terminated.
Passmore was requested to sign a sheet with the records as
shown by Shculte which she did. On this sheet was also
printed the statement that if she was late within the 60-day
period she would be discharged . Passmore testified further
that prior to July 9, 1971, she never had been called into
Schulte's office concerning her attendance . Never before
had she been given a warning or a 60-day notice . However,
on cross -examination Shculte did admit that before July 9,
Peter Maraveleas spoke to her on a number of occasions
about her tardiness.
Also on July 9, employee Penny Trammel was placed on
probation in much the same manner and for the same
reason as was Passmore . Schulte told Passmore that she
had been tardy and absent too many times and that she
was on probation for 60 days . He told her that if she
missed any days during that time she would be dismissed.
She signed a paper to this effect . Although Passmore
testified that prior to July 9 she had never been told that
she would be discharged because of tardiness or lack of
attendance , she did admit that other employees were
disciplined for being tardy or absent. This was prior to July
9, 1971. She remembered distinctly that her roommate was
put on probation the year before that for being tardy.
Linda Pawlowski was also placed on probation the day
in question for being excessively tardy. She was told by
Schulte that if she was late or tardy again she would be
fired, Prior to the day in question no one in management
had ever advised or warned Pawlowski that she was subject
to probation or discharge because of her attendance.
MEDICAL ANCILLARY SERVICES , INC. 797
It should be noted that both Tavtigian and Passmore
were known union leaders and were both union stewards.
Pawlowski and Trammel were active in the Union only to
the extent that they attended union meetings and voted in
the election.
In explaining the placing of these individuals on
probation , Peter Maraveleas testified that on July 9 he
reviewed the attendance record of people in the depart-
ment and found that there was excessive tardiness within
the claims department . Therefore , he went to Bruce
Schulte , after pulling the cards of the individuals who were
excessively tardy, and told Schulte to place these people on
notice and tell them that excessive tardiness could no
longer be tolerated . Neither Schulte nor Maiers, who were
present at the time the employees were placed on
probation , testified as to this matter.
On that same day, July 9, Rose Ann Bradley, a claims
typist, was discharged. July 9 was a Friday but Bradley's
payday was not due until the following Thursday. She was
discharged at approximately 3:30 p .m. whereas the normal
quitting time is 4:30 p .m. She admitted that 3 weeks before
July 9 she had been placed on probation at which time she
was told that she had to better her production or she would
have to leave by June 25 . However, she was not discharged
on June 25.
Also discharged on that day were employees Susan
McIntosh , Sandra Johnson , and` Doris Salimino. The
General Counsel offered no testimony as to these three
individuals . However , the Respondent proffered considera-
ble testimony with regard to the discharges of the four
individuals on July 9.
In the first instance , Peter Maraveleas testified, without
contradiction , that he usually reviews production records
on Friday, and July 9 was a Friday; On that day, he
checked the production records and found that two major
departmenst of the Company were at their lowest possible
point. The keypunch department was especially bad, being
20 days behind schedule . This was detrimental to the
Respondent , since the Respondent 's work is seasonal to a
certain extent and primarily reaches its peak during the
summer months . This is so because schools are closed and
the volume of the emergency departments at the hospitals
begins to accelerate at the beginning of July. This
fluctuating demand naturally effects the workload of the
Respondent which services these hospital emergency
rooms.
After reviewing the production records, Maraveleas
spoke to Elizabeth Rohrmaier , vice president in charge of
production , and told her that if they continued to get far
behind during the summer months it would be difficult to
catch up. The Company could not stay in business , as they
would begin to lose clients. He told her to summarize the
records of the week and that anybody who did not meet
the average production of their department was going to be
let go and they would have to find people who would be
able to do the jobs . Maraveleas did not instruct Rohrmaier
to discharge any particular individual.
Rohrmaier 's testimony shows that Rose Ann Bradley
was employed on April 26, 1971, as a probationary
employee for the probationary period of 90 days. The work
performance of Bradley was constantly below standard
and she was periodically informed of this . This first time
was on May 13, the second on June 2 . Respondent's
records, which support the testimony of Rohrmaier, show
that Rose Ann Bradley was consistently below the level for
medical typist trainees , the classification for which she was
being trained . Then, on June 17 , Rose Ann Bradley was
put on probation . However , she had slightly improved after
that so that she was not terminated on June 25 . Though
Bradley was still below standard on June 25 , when it came
time to decide what to do about her, it was decided to give
Bradley another chance because she had improved to a
certain extent.
The person who was training the typists was Norma
Harvey , who was leaving the Respondent 's employ, and
did leave the Respondent 's employ on July 9 . It was on
that day, or the day before , that Harvey gave the
employees a final test . In the final test , the lowest grade for
passing was 10 mistakes . However, Rose Ann Bradley had
made 15 mistakes . The next lowest was 10 . Therefore, on
July 9, according to the instructions given to her by Peter
Maraveleas , Rohrmaier discharged Bradley . Rohrmaier
was satisfied at that time that Bradley would not be able to
comply with the Respondent 's requirements and standards
for production.
Rohrmaier further established in her testimony that
Doris Salimino took a test prior to her being hired as a
keypunch operator . The determination of this test is how
many cards can be punched in a 10 -minute interval and
Salimino did exceptionally well. However , Salimino's
record on July 9 showed that her hourly production
averaged only 2 ,700 to 2,800 strokes per hour whereas the
standard is 9,000 strokes per hour . Moreover, the average
in the Respondent 's keypunch department is between
10,000 and 11,000 strokes per hour . Therefore , Salimmo's
average was not quite 1 /3 of the standard used in the
Respondent 's establishment . Moreover , during her short
period of employment with Respondent, Salimino was
absent once and tardy five times.
Sandra Johnson was hired on May 12, 1971, as a trainee
keypunch operator . In the case of a trainee , Respondent
gives the trainee approximately 5 or 6 weeks to become a
proficient operator who could meet the standard of 9,000
strokes per hour . Sandra Johnson 's 90-day probationary
period was up 90 days after May 12 but she was
consistently below standard and showed no significant
improvement . Her average was between 5.5 and 6.6
thousand strokes per hour . On the day of her termination,
her average was only 5,000 compared to a standard of
9,000. Moreover , her attendance record was also bad.
During the time of her employment , she was absent four
times and tardy three times.
On June 14 , 1971, Susan McIntosh was employed as an
experienced keypunch operator who had had in excess of 5
years of experience . As she was experienced, McIntosh was
expected to have rapid advancement, but she also was
consistently below the average of 9,000 strokes per hour.
As a matter of fact , her average never exceeded 6,000
strokes per hour. But, her salary was also higher than the
rest of the other employees because of her previous
experience . Therefore , upon reviewing her record, it was
decided to discharge McIntosh.
798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Rohrmaier further stated that these three keypunch
operators produced, between them, what one average
keypunch operator in the Respondent's department pro-
duced. This influenced Rohrmaier in making her decision to
discharge these three individuals.
2. Concluding findings as to the events of July 9
Maiers' prefacing remarks at her meeting with her
department employees on July 9 to the effect that it was
too bad that the Union was voted in9 set the keynote for
that meeting. It was in the context of this statement that
Maiers informed her department that there was to be no
more talking and that there was to be no special cleanup
time and that the workday did not end until 4:30. In
testifying, Maters did not deny the testimony of Tavtigian
that in May or June 1971 Maters told the employees that
they were allowed 5 or 10 minutes before the 4:30 quitting
time to clean up their desks as long as they did not sit
around idly. However, she did deny that she told them that
they could not clean up their desks before 4 : 30. But,
Tavtigian testified credibly that the import of Maiers'
instruction on July 9 was that they were not to clean up
until after the buzzer sounded at 4:30. Since they could not
punch out until the cleanup was completed , the result was
that they had to clean up in the 5 or 10 minutes after 4:30
for which they were not paid overtime. This, then, was a
change in working conditions. The same conclusion is
reached with regard to the no-talking instructions. While it
may well be that before July 9 Maiers had had to warn the
employees about excessive talking, talking as such, which
did not prevent employees from doing their work, was not
prohibited. However, the instruction of Maiers on July 9
indicated that all talking was interdicted . Therefore, it is
concluded that this constituted a change in working
conditions.
A like conclusion is reached with regard to the removal
of the material from the bulletin board and the denial of its
use to the employees by Peter Maraveleas. With regard to
this incident, the Respondent offered no testimony or other
evidence to disprove that the event took place or to explain
the reason therefore.
We come now to the placing on probation of employees
Tavtigian, Passmore, Trammel, and Pawlowski. As Res-
pondent has asserted, Tavtigian was warned upon a
number of occasions prior to July 9 not to play cards.
However , she was not warned that she could not have
personal items in her desk . With regard to Passmore,
Trammel, and Pawlowski, each of these employees had
undoubtedly been somewhat lax in reporting on time for
their workdays in the past. However, not one of these four
employees had ever before been on probation for their
faults. Nor had they ever been warned that they would be
put on probation . I note also that so far as Tavtigian and
Passmore were concerned , they were the two leading union
advocates in the Respondent 's employ and , moreover,
Tavtigian had acted at the poles in the election held the
previous day. Thus, the placing of these employees on
probation came at a time immediately after the Union had
won the election and two of the • four employees were
known union adherents.
The events of July 9 cannot be regarded in a vacuum,
nor can they be considered as individual , isolated inci-
dents. Although Peter Maraveleas , as president of the
Respondent , did not in the preelection period express
unyielding opposition to the Union , it should be noted that
earlier in the year, in the case of Isabel Gugyela,
Maraveleas instituted her discharge for the reason that he
thought that she was involved in union activity . Further-
more, I note that in early June Maraveleas again expressed
the fact that he knew his employees were engaging in union
activity. Thus, there is demonstrated hostility which, I find,
did effect Maraveleas ' judgment on July 9 . While it is
entirely possible that Maraveleas was concerned on July 9
with the conditions that prevailed in his facility and it is
also possible that the claim that production had fallen
behind and that the summer months were the busiest is
quite true , I nevertheless believe that when all of the
foregoing factors are considered together , the conclusion
must be reached that these foregoing activities were taken
for discriminatory reasons. In coming to this conclusion, I
have considered as vital the fact that all of these events
took place suddenly and without warning the day after
Maraveleas learned that the Union had won the election.
Furthermore , there was an admission in the record that on
no prior occasion had four employees from the same
department been placed on probation on the same day.
Thirdly, as mentioned above , both Tavtigian and Passmore
were known , strong union adherents.
Accordingly , I conclude and find that the change in
cleanup time, the change in the no -talking rule , the refusal
of the use of the bulletin board, and the placing of the four
above employees on probation constituted discriminatory
acts undertaken to discourage membership in and activity
on behalf of the Union. Such action is violative of Section
8(a)(1) and (3) of the Act.
There remains for consideration the discharges of
Bradley , McIntosh, Johnson , and Salimino . In each
instance , the Respondent, through Vice President Rohrm-
ater , was able to give ample explanation of the reasons for
the discharge. Each one of these employees failed to come
up to the work standards set by the Respondent.
Furthermore , it was shown , without contradiction, that
Harvey, the instructor of the class teaching the medical
typists, left Respondent 's employ on July 9 and that Rose
Ann Bradley did not pass the final examination. This
would explain why July 9 was chosen as the date of
Bradley 's discharge . With regard to the other three , there is
no contravening evidence or testimony by the General
Counsel to show that any of these employees did, in fact,
meet the standards set by the Respondent. Rohrmaier's
testimony was unqualified and uncontradicted on the
record . While there may be some suspicion with regard to
these discharges because of their timing and the fact that
Respondent committed other unfair labor practices on the
same day, it is nevertheless concluded that the General
Counsel has failed to prove by a preponderance of the
evidence that the discharges of Bradley , McIntosh,
Johnson , and Salimino were discriminatory rather than for
9 In her testimony , Maters did not deny this remark
MEDICAL ANCILLARY SERVICES, INC.
cause. Accordingly, I shall order dismissed this allegation
of the complaint.
However, I do not accept Peter Maraveleas ' explanation
as to the reasons for his searching the desks of Passmore
and Tavtigian on July 9. In the context of the other unfair
labor practices which occurred on July 9 and in view of the
fact that both Passmore and Tavtigian were the two union
leaders in the shop, I find and conclude that the purpose of
Maraveleas' search of their desks was to discover any
prounion material that they might have harbored. It is
concluded that this was part and parcel of a retaliatory
action taken by Maraveleas in order to discourage the
employees from engaging in union activity and was
therefore violative of Section 8(a)(1) of the Act. In coming
to this conclusion I have considered the fact that the record
establishes inspection of desks by Maraveleas in the past
for items such as food , drugs, and weapons. I have also
taken into consideration the testimony of Peter Maraveleas
and Maria Maraveleas to the effect that they were
concerned about the safety of their employees and
especially with regard to Tavtigian and Passmore as union
leaders. Nevertheless, I have concluded that the natural
consequence of Maraveleas' act was to have a coercive
effect upon the employees and interfered with their Section
7 rights.
E. The September 1971 Incident to
At a meeting of the employees and management held
sometime in August 1971, Peter Maraveleas told the
employees, among other things, that he expected perfect
attendance and no tardiness . He also told them that if they
had any suggestions that they were to put them in a
suggestion box. He also spoke about the effect of the
President 's Phase I wage freeze . Then he made some
derogatory remarks about some of the evaluators with
regard to their being overweight. He then went on to talk
about the union business agent , Thelma O'Dell, and made
the remark that "her mouth was as big as her ass."
Among the employees attending this meeting was
Marlene Struckman, a medical typist. After the meeting,
Struckman and other employees from her department met
and decided that they resented the personal remarks made
by Maraveleas concerning the size and weight of some of
the employees and of the union business agent. Therefore,
a letter was typed up addressed to Maraveleas stating that
the employees felt that , since the union meetings were
voluntary, the meetings of the employees should also be
voluntary and that they did not like malicious talk about
their fellow employees. Struckman was among the employ-
ees who signed this letter which was placed in a suggestion
box.
Some weeks later the employees who signed the letter
were called to meet Peter Maraveleas. Maraveleas told the
employees that he had read the letter and asked the
employees what they thought "malicious" meant. The
employees answered that they thought it meant talking
about employees the way he did and talking about their
10 The allegation as to this event is contained in par . 8(d) of the
complaint which was added to the complaint by amendment by counsel for
the General Counsel at the hearing herein.
11 All of the foregoing from the credited testimony of Struckman which
799
weight . He told them that the meetings were held on
company time; that they were being paid for them; and
that they were obliged to attend.'1
Sometime in late September , Struckman was called for
an interview with Maria Maraveleas , executive vice
president of the Respondent . Maria Maraveleas showed
Struckman her evaluation sheet , how it was made up, and
how they computed it. Maraveleas went over Struckman's
report and showed the latter where she had made her
mistakes. Mrs. Maraveleas then reviewed the quantity and
quality of Struckman 's work and told her that she had
above average in initiative . Mrs. Maraveleas said , however,
that she was very disappointed in Struckman as she saw
Struckman 's name on the letter to Peter Maraveleas. When
Struckman explained why she had signed the letter, Maria
Maraveleas repeated that she was very disappointed that
Struckman had signed the letter . She then went on to tell
Struckman that she thought Struckman 's attitude had been
above average but now she would only have to rate her as
average.
Struckman admitted on cross -examination that her
conversation with Maria Maraveleas was not a merit
review conference and that no action was taken on her at
that time . However , she reiterated on cross-examination
that Maria Maraveleas told her that until that time she
thought Struckman's attitude had been above average but
now because of the letter she would have to rate her as
average and that she was disappointed in Struckman.
Maria Maraveleas testified that she went on to explain to
Struckman that they were not reviewing Struckman for an
isolated incident . Maria Maraveleas further testified that
Struckman has not been reclassified because of the
incident.
It is concluded that the action of Struckman and her
fellow employees in drafting the letter of protest to
management was concerted and protected activity within
the meaning of the Act. It was in response to Peter
Maraveleas' demonstrated hostility to union leaders, to
employees , and to union representatives . The natural and
probable consequence of Maria Maraveleas' statements to
Struckman concerning her activity was to reasonably lead
Struckman to believe that she had or would have been
penalized because of her protected and concerted activi-
ties. In analagous situations the Board has found a
violation where an employer by its agents has penalized or
led employees to believe they had been penalized in regard
to their employment status for engaging in activities
protected by the Act .12 Here Maria Maraveleas definitely
stated to Struckman that she would down rate her as being
only average instead of above average in attitude.
Accordingly, I find and conclude that the Respondent's
actions were violative of Section 8(a)(1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent, set forth in section III,
above, occurring in connection with the operations of the
was not controverted by the testimony of any of the Respondent's witnesses.
12 See National Springs Corporation, 160 NLRB 148; Brown & Root-
Northrop, 177 NLRB I.
800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent set forth in section I, above, have a close,
intimate , and substantial relation to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow thereof.
V. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, it will be recommended that it cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
It having been found that Respondent has engaged in
activities constituting interference, coercion, and restraint
within the meaning of Section 8(a)(1) of the Act, it will be
recommended that Respondent cease and desist therefrom
and from any like or related conduct.
It having been further found that the Respondent has
engaged in discriminatory activity within the meaning of
Section 8(a)(3) of the Act, it will be recommended that
Respondent cease and desist therefrom and from any
similar conduct.
It having been found that Respondent has discriminator-
ily discharged Isabel Gugyela, I shall recommend that
Respondent offer said employee immediate and full
reinstatement to her former or substantially equivalent
position, without prejudice to her seniority or other rights
and privileges. In addition, I shall recommend that the
Respondent make her whole for any loss of earnings she
may have suffered by reason of the discrimination against
her by payment to her of a sum of money equal to that
which she would normally have earned from the date of
her discharge, less net earnings during said period.
Backpay shall be computed with interest on a quarterly
basis in the manner described by the Board in F. W.
Woolworth Company, 90 NLRB 289, 291-295, and Isis
Plumbing & Heating Co., 136 NLRB 716.
Upon the basis of the above findings of fact and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the
meaning of Section 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. By interfering with, restraining, and coercing em-
ployees in the exercise of their rights guaranteed in Section
7 of the Act, Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8(a)(1)
of the Act.
4. By discriminatorily changing employees' working
conditions, the Respondent has engaged in conduct
violative of Section 8(a)(3) and (1) of the Act.
5. By discharging employee Isabel Gugyela and there-
by interfering with her Section 7 rights, Respondent has
violated Section 8(a)(1) of the Act.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
7. By the discharge of employees Rose Ann Bradley,
Susan McIntosh, Sandra Johnson, and Doris Salimino, the
Respondent has not engaged in activities violative of the
Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended: 13
ORDER
Respondent, Medical Ancillary Services, Inc., its offi-
cers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Telling its employees that it has discharged any
employee for engaging in union or protected concerted
activity.
(b) Creating the impression of engaging in surveillance of
employees' union activities.
(c) Engaging in surveillance of its employees' union
activities by requiring employees to show the contents of
their work desks.
(d) Advising its employees that it would give them a
lesser performance rating for engaging in union or
protected concerted activities.
(e) Discharging or in any other manner discriminating
against employees because of their concerted activities for
the purpose of mutual aid or protection.
(f) Discouraging membership in Office and Professional
Employees International Union, Local 10, AFL-CIO, or
any other labor organization, by changing employee
conditions of employment or by placing its employees on
probation or otherwise discriminating against employees in
regard to their hire or tenure of employment or any term or
condition of employment.
(g) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their right to form,
join, assist, or be represented by the aforesaid Union, or
any other labor organization, to bargain collectively
through representatives of their own choosing, or to engage
in other concerted activity for the purpose of collective
bargaining, or other mutual aid or protection, or to refrain
from any or all such activity.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer Isabel Gugyela immediate and full reinstate-
ment to her former or substantially equivalent position,
without prejudice to her seniority or other rights and
privileges enjoyed, and make her whole for any loss of
earnings she may have suffered by reason of the discnmi-
nation against her in the manner set forth in the section of
this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, and all
other reports necessary to analyze the amount of backpay
due under this recommended Order.
13 In the event no exceptions are filed as provided by Sec 102 46 of the 102 48 of the Rules and Regulations. be adopted by the Board and become
Rules and Regulations of the National Labor Relations Board, the findings, its findings, conclusions, and Order, and all objections thereto shall be
conclusions, and recommended Order herein shall, as provided in Sec deemed waived for all purposes
MEDICAL ANCILLARY SERVICES, INC. 801
(c) Post at its facility in Troy, Michigan , copies of the
attached notice marked "Appendix ." 14 Copies of said
notice , on forms provided by the Regional Director for
Region 7 , after being duly signed by the Respondent's
representative , shall be posted by the Respondent immedi-
ately upon receipt thereof , and be maintained by it for 60
consecutive days thereafter , in conspicuous places , includ-
ing all places where notices to employees are customarily
posted . Reasonable steps shall be taken by the Respondent
to ensure that said notices are not altered, defaced, or
covered by any other material. No other material relevant
to this matter shall be posted during this period.
(d) Notify the Regional Director for Region 7, in writing,
within 20 days from the receipt of this Decision, what steps
the Respondent has taken to comply herewith.15
IT IS FURTHER ORDERED that the complaint be
dismissed insofar as it alleges violations of the Act not
specifically found herein.
14 In the event that the Board 's Order is enforced by a Judgment of a 15 In the event that this recommended Order is adopted by the Board
United States Court of Appeals, the words in the notice reading "Posted by after exceptions have been filed , this provision shall be modified to read:
Order of the National Labor Relations Board" shall read "Posted Pursuant "Notify the Regional Director for Region 7, in writing , within 10 days from
to a Judgment of the United States Court of Appeals Enforcing an Order of the date of this Order , what steps the Respondent has taken to comply
the National Labor Relations Board ." herewith."