Pontiac Osteopathic Hospital

National Labor Relations Board - Board Decisions

Jun 23, 1987

284 N.L.R.B. 442 (N.L.R.B. 1987)

442 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Pontiac Osteopathic Hospital and Bonnie Beltramo,
Evelyn Bach, and Sharon McKay. Cases 7-CA-
23035, 7-CA-23162, 7-CA-23475
23 June 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND STEPHENS
On 27 June 1986 Administrative Law Judge Wil-
liam A. Pope II issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed an answering brief.
The National Labor Relations Board has delegat-
ed 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
decided to affirm the judge's rulings, fmdings, and
conclusions only to the extent consistent with this
Decision and Order, to modify the remedy,' and to
adopt the recommended Order as modified.
The judge found that the Respondent violated
Section 8(aX1) of the Act by discharging employee
Bonnie Beltramo on 6 January 1984, 2 and again on
7 February, and by demoting Supervisor Evelyn
Bach on 9 February, and then discharging her on
23 February, and again on 22 March. The Re-
spondent excepts to these findings. 3 While we fmd
that, for the reasons stated by the judge, the Re-
spondent violated Section 8(a)(1) of the Act by dis-
charging Bonnie Beltramo, 4 we fmd merit in the
Respondent's exceptions to the judge's fmding that
the discharge of Evelyn Bach violated the Act.
For the reasons set forth below, we reverse the
judge and fmd that the Respondent did not violate
the Act by demoting and discharging Evelyn Bach.
As found by the judge, on 6 January employee
Bonnie Beltramo was discharged for writing a
"fake newsletter" commenting on, among other
things, the Respondent's relationship with its em-
ployees. At the time that the Respondent's director
of nursing, Rita Mahon, was considering discipline
In accordance with our decision in New Horizons for the Retarded,
283 NLRB 1173 (1987), Interest will be computed at the "short-term Fed-
eral rate" for the underpayment of taxes as set out in the 1986 amend-
ment to 26 U.S.C. § 6621.
I All dates refer to 1984 unless otherwise indicated.
6 The Respondent additionally excepts to the Judge's failure to defer to
the findings of the appeals board established by the Respondent and its
employees. We find no merit in this exception. The Respondent fails to
show that its appeals board proceedings meet the standards for deferral
to iirbitration as set forth in United Technologies Corp., 268 NLRB 557
(1984), and Olin Corp., 268 NLRB 573 (1984).
4 In affirming the judge's findings that the Respondent's discharges of
Beltramo violated the Act, with regard to the second discharge we rely
only on the judge's finding that the Respondent's reasons for discharging
Beltramo were pretextual. In so doing we in no way pass on the judge's
findings concerning Beltramo's rights with regard to contacting advisory
board members.
284 NLRB No. 51
to be meted out to Beltramo, Beltramo's supervi-
sor, Evelyn Bach, told Mahon that she did not sup-
port Mahon's decision to discharge Beltramo. Fur-
thermore, Bach told Mahon that she thought it was
wrong to discharge someone for expressing her
feelings about management. At no time, however,
did Mahon ask Bach to carry out the discharge or
in any way participate in the discipline.
Beltramo appealed her discharge to the Respond-
ent's appeals board, which reduced the discharge
to a 30-day suspension and a 90-day probationary
period upon her return to work. 5 On 7 February,
shortly after her return to work, Beltramo was dis-
charged for a second time. Two days later, Bach
was demoted from her position of clinical nurse co-
ordinator to that of a staff nurse. According to
Bach, she was told by Mahon that she was being
demoted because she had not supported Mahon in
the Beltramo matter. On 23 February Bach was
discharged for unsatisfactory performance of her
clinical nurse coordinator duties.
The judge, while acknowledging that supervisors
are generally excluded from the Act's coverage,
reasoned that under our decision in Parker-Robb
Chevrolet, 262 NLRB 402 (1982), the circumstances
in this case warranted extending protection to Su-
pervisor Bach. We conclude that the judge read
Parker-Robb too broadly in extending protection to
Bach.
It is clear that protection under the Act is afford-
ed to employees, not supervisors. Consequently,
the discharge of a supervisor violates the Act only
where it interferes with the exercise of employees'
Section 7 rights. Thus, we stated in Parker-Robb
Chevrolet, supra, 262 NLRB at 402-403:
[A]n employer may not discharge a supervisor
for giving testimony adverse to an employer's
interest either at an NLRB proceeding or
during the processing of an employee's griev-
ance under the collective-bargaining agree-
ment. Similarly, an employer may not dis-
charge a supervisor for refusing to commit
unfair labor practices, or because the supervi-
sor fails to prevent unionization. In all these
situations, however, the protection afforded
supervisors stems not from any statutory pro-
tection inuring to them, but rather from the
need to vindicate the employees' exercise of
their Section 7 rights. [Citations omitted.]
5 Beltramo requested that Bach testify on her behalf at the appeals
board proceeding, but she was informed by Robert Rood, the employee
advocate for the proceeding, that Bach could not appear on her behalf.
Consequently, Bach wrote a letter, which was offered mto evidence at
Beltramo's appeals board proceeding, stting that she did not agree with
Respondent's action of firing an employee for expressing her dissatisfac-
tion with management.
PONTIAC OSTEOPATHIC HOSPITAL 443
In Parker-Robb we overruled the "integral part"
or "pattern of conduct" cases in which we had
held that the discharge of a supervisor, as part of
an overall plan to discourage employees from exer-
cising their Section 7 rights, violated the Act.
While recognizing that the discharge of a supervi-
sor for engaging in union or concerted activity
almost invariably has a secondary or incidental
effect on employees, we reasoned that such con-
duct is insufficient to warrant an exception to the
general statutory provision excluding supervisors
from the protection of the Act. We further rea-
soned, however, that when a supervisor is dis-
charged for testifying at a Board hearing or at a
contractual grievance proceeding, or for refusing
to commit unfair labor practices or failing to pre-
vent unionization, "the impact of the discharge
itself on employees' Section 7 rights, coupled with
the need to ensure that even statutorily excluded
individuals may not be coerced into violating the
law or discouraged from participating in Board
processes or grievance procedures, compels that
they be protected despite the general statutory ex-
clusion." Parker-Robb, 262 NLRB at 404.
In the instant case, we are faced with the ques-
tion of whether the discharge of a supervisor for
failure to support management action amounting to
an unfair labor practice constitutes a violation of
the Act. The judge concluded that it did, reasoning
that there was no difference between discharging a
supervisor for refusing to commit an unfair labor
practice and discharging a supervisor for failing to
support management action amounting to an unfair
labor practice. We disagree with the judge's con-
clusion. When an employer asks a supervisor to
commit an unfair labor practice, the supervisor is
forced to choose between violating the law or dis-
obeying the employer's request—a choice that
could lead to discipline or discharge. Consequently,
in such situations, an employer is able to pressure a
supervisor into violating the law on its behalf. On
the other hand, when a supervisor, acting on his or
her own initiative, chooses to express disapproval
of a management policy, the supervisor is not co-
erced at all (i.e., he or she has not been forced to
choose between violating the law or risking the
consequences of the employer's wrath). Admitted-
ly, the discharge in either situation may have a sec-
ondary effect on the employees' exercise of their
Section 7 rights, but there is no need to protect the
supervisor from coercion when the supervisor is
acting on his or her own initiative. 6 As we found
6 In Buddies Super Markets, 223 NLRB 950 (1976), enf. denied 550
F.2d 39 (5th Cir 1977), the Board found that the dismissal of a supervisor
for voluntarily warning an employee of possible unfair labor action that
might be taken against him violated Sec. 8(a)(1). The Board there rea-
in Parker-Robb, it is the need to ensure that statuto-
rily excluded employees are not coerced into vio-
lating the law or discouraged from participating in
Board or grievance proceedings that compels pro-
tection for supervisors. As we find that Evelyn
Bach was in no way coerced into violating the law
or discouraged from participating in Board or
grievance procedures here, her discharge was not a
violation of the Act.7
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Pontiac Osteopathic Hospital, Pontiac,
Michigan, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order as
modified.
1. Delete paragraph 1(b) and reletter the subse-
quent paragraphs.
2. Substitute the following as paragraphs 2(a) and
(c).
"(a) Offer Bonnie Beltramo immediate and full
reinstatement to her former position or, if that posi-
tion no longer exists, to a substantially equivalent
position, without prejudice to her seniority or any
other rights or privileges previously enjoyed, and
make her whole for any loss of earnings and other
benefits suffered as a result of the discrimination
soned that "there is little difference between a supervisor refusing to
engage in unfair labor practices and refusing to stand by in silence while
his employer embarks on a planned course of action toward that end."
223 NLRB at 950 fn. 2 Buddies Super Markets, however, was overruled
by Parker-Robb, 262 NLRB at 404 fn. 20. Consequently, Buddies Super
Markets is not controlling here.
It must also be emphasized that, in restricting the circumstances in
which the discharge of a supervisor may constitute a violation of Sec.
8(a)(1) of the Act, the Board in Parker-Robb was not engaged simply in
effectuating its own policy preferences. Rather, it was responding to the
policies of Congress that underlie the exclusion of supervisors from the
protection of the Act. As the Supreme Court noted in reviewing the leg-
islative history of Secs. 2(3) and (11) and 14(a) of the Act, Congress rec-
ognized supervisors as members of management who were "obliged to be
loyal to their employer's interests." Beasley V. Food Fair of North Caroli-
na, 416 U.S. 653, 659-660 (1974). The Board simply acknowledged that
an employer is generally free to require a supervisor's loyalty to its posi-
tions vis-a-vis its employees, except in those circumstances, identified by
the Board, in which the employer forces the supervisor to become an in-
strument of actions that are directly contrary to employee interests under
the Act. Parker-Robb, supra, 262 NLRB at 402-403.
7 While Bach was discouraged from testifying on behalf of Beltramo at
Respondent's appeals board proceedings, we note that those proceedings,
as the judge found and we affirm, were not proceedings implemented
pursuant to a collective-bargaining agreement, to which we would be
willing to defer. See fn. 2. Consequently, they are not proceedings that
enjoy recognition under the Act Further, as noted, Bach was not even
asked, let alone required, to participate in those proceedings in support of
the Respondent's position.
Reasoning that Bach's second discharge was for the same reason as her
first discharge, the judge concluded that the second discharge was also
an 8(a)(1) violation. Because we find that Bach's first discharge did not
violate Sec. 8(aX1) of the Act, we likewise conclude that the second dis-
charge was not a violation of the Act.
444 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
against her in the manner set forth in the remedy
section of this decision.
"(c) Remove from its files any reference to the
discharge of Bonnie Beltramo on 6 January 1984
and 7 February 1984, and advise her in writing that
this has been done, and that no evidence of these
unlawful acts will be used as a basis for future per-
sonnel actions against her."
3. Substitute the attached notice for that of the
administrative law judge.
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 violated 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 representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT discharge employees because they
have engaged in protected concerted activities for
the purpose of mutual aid and protection.
WE WILL NOT maintain in our employee hand-
book any rule that prohibits employees from solic-
iting funds for any purpose on our property with-
out our approval, or from discussing employee
problems.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the National Labor Relations Act.
WE WILL offer Bonnie Beltramo immediate and
full reinstatement to her former position or, if that
position no longer exists, to a substantially equiva-
lent position without prejudice to her seniority or
other rights or privileges, and make her whole for
any losses sustained as a result of our discriminato-
ry and unlawful actions, with interest.
WE WILL remove from our files any reference to
the discharge of Bonnie Beltramo, and notify her in
writing that this has been done and that evidence
of her unlawful discharge will not be used as a
basis for future personnel action against her.
WE WILL rescind the rules in our employee
handbook prohibiting employees from soliciting
funds for any purpose on our property without our
approval, and from discussing employee problems.
PONTIAC OSTEOPATHIC HOSPITAL
Linda Rabin, Esq., for the General Counsel.
Stephen M Kelley, Esq., of Detroit, Michigan, and Sharon
F. Rapp, Esq., of Pontiac, Michigan, for the Respond-
ent.
DECISION
WILLIAM A. POPE II, Administrative Law Judge. In a
complaint, dated 7 March 1984, an amended complaint,
dated 21 June 1984, and a second amended complaint,
dated 5 July 1984, the Regional Director for Region 7 of
the National Labor Relations Board alleged that the Re-
spondent, Pontiac Osteopathic Hospital, engaged in
unfair labor practices, in violation of Section 8(aX1) and
(4) of the National Labor Relations Act (the Act). The
three original charges in this case were filed on 19 Janu-
ary 1984 (an amended charge was filed on 8 February
1984), 29 February 1984, and 24 May 1984, by Bonnie
Be'tram°, Evelyn Bach, and Sharon McKay, respective-
ly. Trial took place in Detroit, Michigan, on 22 days be-
tween 18 October 1984 and 31 January 1985, before Ad-
ministrative Law Judge William A. Pope II.
I. BACKGROUND
Pontiac Osteopathic Hospital, the Respondent, is a
general patient-care facility located in Pontiac, Michigan.
In addition to its main hospital, Respondent operates out-
patient health care centers in two nearby communities.
One of these is the Oxford Health Care Center, located
in Oxford, Michigan, a community approximately 17
miles north of the main hospital. The other is the Milford
Health Care Center, located in Milford, Michigan, a
community approximately 17 miles west of the main hos-
pital. All three of the charging parties are former or cur-
rent employees of Respondent at its Oxford Health Care
Center.
Charging Party Bonnie Beltramo is a registered nurse.
She began working as a staff nurse at Respondent's main
hospital on 5 September 1978, and transferred to the
Oxford Health Care Center on 1 July 1980 as a clinical
nurse, where she remained employed until dismissed, for
the second and final time, on 7 February 1984.
It is undisputed that on 31 December 1983, while on
duty at the Oxford Health Care Center, Beltramo and
Charging Party Sharon McKay, who is employed as a
clinical technician at the Center, collaborated in author-
izing and preparing an apocryphal edition of "POH
People," an in-house news bulletin published periodically
by Respondent and distributed to its employees. On a
blank piece of paper, to which they had attached the
masthead cut from an actual edition of "POH People,"
Beltramo handwrote two satirical articles that she and
McKay had coauthored. One of the articles was entitled
"Oxford Succeeds from POH"; the other was entitled
"A Salute to Judy." Neither Beltramo's name, nor that
PONTIAC OSTEOPATHIC HOSPITAL 445
of McKay, appeared anywhere in the fake edition of
"POH People" that they had prepared.
According to Beltramo's undisputed testimony, using a
copy machine at the Oxford Health Care Center, she
made three copies of the fake edition of "POH People,"
and, tore up and discarded the original. She gave one
copy each to McKay and Sharon Meyers (another
Oxford Health Care Center clinical technician, who also
is Beltramo's sister), and left one copy on the desk of
Deborra Okolovitch, a clerical employee at the Oxford
Health Care Center.
On 4 January 1984, a copy of the fake edition of
"POH People" prepared by Beltramo and McKay was
delivered through Respondent's internal mail system to
the main hospital to the office of Patrick Lamberti, Re-
spondent's executive assistant. The sender was anony-
mous, and remains so. There is no evidence as to where
the anonymous sender obtained the copy of the fake
newsletter sent to Patrick Lamberti.
Lamberti showed the fake newsletter to Rita Mahon,
Respondent's director of nursing, whose office also was
at the main hospital, and together, on 5 January 1984,
they went to the Oxford Health Care Center to investi-
gate the incident. From Charging Party Evelyn Bach,
they learned that the handwritting appeared to be that of
Beltramo. When confronted, BeWarn° admitted her in-
volvement, but declined to identify by name anyone else
who was involved. Mahon suspended Beltrarno, and di-
rected her to report to Mahon's office in the main hospi-
tal at Pontiac the next morning.
The next morning Mahon dismissed Beltramo for
lalcts of disloyality detrimental to the best interests of
the hospital." Although Beltramo disclosed McKay's
identity during that meeting, Respondent did not initiate
action against McKay then.
Beltramo filed a grievance concerning her dismissal,
following the formal procedure that Respondent had im-
plemented for its nonunion, "regular, non-probationary
hourly and supervisory employees, up to but not includ-
ing Department Heads." The fmal step in the grievance
procedure is a hearing before the hospital's appeals
board, whose decision, according to the grievance proce-
dure handbook, is final and binding. The appeals board
heard Beltramo's grievance on 13 January 1984. It voted
to reduce her termination to a suspension of 30 days
starting from 5 January 1984, to be followed by a proba-
tionary period of 90 calendar days.
Complying with the appeals board's decision, Re-
spondent reinstated Beltramo on 5 February 1984. But 2
days later, on 7 February 1984, after learning of what he
characterized as improper contact by Beltramo with
members of a community advisory board to the Oxford
Health Care Center, Respondent's chief executive offi-
cer, Jack Whitlow, directed Charging Party Evelyn
Bach, the clinical nurse coordinator at Oxford Health
Care Center, to contact Beltramo an,d tell her she was
dismissed. Bach communicated that message to Beltramo
in a telephone conversation that evening. The next day,
Beltramo met with Whitlow in his office at the main hos-
pital, where Whitlow told her his reasons for discharging
her.
Beltramo filed a grievance over her second dismissal.
The appeals board, after hearing the grievance, voted to
uphold the dismissal.
Charging Party Evelyn Bach is a registered nurse. She
was the clinical nurse coordinator at the Oxford Health
Care Center from the time it opened in 1980 until she
was dismissed in early 1984. As clinical nurse coordina-
tor, she was responsible for supervising nursing services
at the Oxford Health Care Center.
On 9 February 1984, Rita Mahon, Respondent's direc-
tor of nursing, reduced Bach to staff nurse and directed
another nurse to take over as clinical nurse coordinator
and evaluate nursing services at Oxford Health Care
Center.
On 23 February 1984, after receiving a report of the
evaluation, Mahon dismissed Bach, citing "unsatisfactory
work performance" as the reason.
Bach filed a grievance concerning her dismissal. The
appeals board, after hearing her grievance on 2 March
1984, voted to reinstate her to her position of clinical
nurse coordinator, with backpay, and, recommended a
"90-day training probationary period that would include
appropriate training for the position."
Respondent, in what it says was compliance with the
appeals board's decision and recommendation, reinstated
Bach on 19 March 1984. Respondent designated her as a
probationary employee in a training program adminis-
tered by Ruth Doss, Respondent's director of education,
under the supervision of Mahon. But, Mahon refused to
make any commitment that Bach would be reinstated to
a clinical nurse coordinator position, in apparent disre-
gard of the appeals board decision. Bach's participation
in the training program and period of reinstatement were
brief, in any event. On 22 March 1984, Mahon again dis-
charged Bach, for the asserted reason she was not par-
ticipating satisfactorily in the training program. Bach
filed a second grievance and received another hearing
before the appeals board, but this time the appeals board
upheld her dismissal.
Charging Party Sharon McKay is a clinical technician
at the Oxford Health Care Center, where she has
worked since June 1980. It is undisputed that about 3
3 May 1984, McKay, who was working the day
shift from 7 a.m. to 3:30 p.m., left the Oxford Health
Care Center without informing her supervisor, Judy
Cunard.
McKay explained that she left hurriedly after receiv-
ing a telephone call from her son's school, informing her
that her son and another boy were missing from the
school grounds. She said that she told Shelley Austin, a
registered nurse who was on duty at the time, that she
was leaving. She left without punching out on her time-
card, or taking her coat or paycheck. The two boys ap-
parently were located before McKay arrived at the
school. Later that afternoon, McKay returned to the
Oxford Health Care Center to pick up her coat and pay-
check.
The incident was reported to Director of Nursing
Mahon, who, on 7 May 1984, suspended McKay for 5
days without pay. McKay filed a grievance over the sus-
446 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
pension, but, after a hearing on 5 June 1984, the appeals
board upheld the suspension.
On May 14, 1984, Cunard "counseled" McKay con-
cerning three incidents that had allegedly occurred
during the 2-day period of 3 and 4 May 1984. According
to the written "Employee Counseling Record," dated 14
May 1984, which was read and signed on that date by
McKay, she had allegedly failed to complete an assign-
ment, improperly centrifuged a blood sample drawn
from a patient, and gave a brusque response to a child-
patient's mother who requested clarification of instruc-
tions for the child's care. Although the counseling form,
itself, has a blank space for entry of the date the form
was sent to the personnel department, no entry was
made in that space on the copy of the form signed by
McKay and entered into evidence as Joint Exhibit 28.
IL ISSUES
The complaints allege that Respondent committed
unfair labor practices in violation of Section 8(a)(1) and
(4) of the Act, by
(1) Maintaining work rules that prohibit employees
from soliciting funds without the approval of the execu-
tive director, and from discussing employee problems
among themselves.
(2) Discharging Charging Party Beltramo about 6 Jan-
uary 1984, reducing the discharge to a 30-day suspension
and 90-day probation about 13 January 1984; and, again
discharging her on 7 February 1984, because she had en-
gaged in protected concerted activities and had filed an
unfair labor practice charge.
(3) Discharging Charging Party Bach about 23 Febru-
ary 1984, because she had announced reluctance to
engage in an unfair labor practice, and refusing to rein-
state her.'
(4) Suspending Charging Party McKay for 5 days
about 7 May 1984, and issuing her an unfavorable coun-
seling record about 14 May 1984, because she had en-
gaged in protected concerted activities.
A. The General Counsel's Theory of the Case
The General Counsel argues that the satirical newslet-
ter prepared by Beltramo and McKay was part of an on-
going labor dispute between certain employees and man-
agement. In the General Counsel's view, the sentiments
expressed in the newsletter were genuinely held by the
authors, and related to terms and conditions of their em-
ployment that they considered unfair. The newsletter,
suggests the General Counsel, was readily distinguishable
from the official issues of "POH People," and implied no
criticism of the quality of health care provided by Re-
spondent. The fact that employee activity publicizes a
labor dispute does not deprive that activity of protection
it is otherwise entitled to under the Act, asserts the Gen-
eral Counsel. In any event, publicity did not form part of
Respondent's true reason for penalizing the authors; it
was their attitude that concerned Respondent, according
to the General Counsel. The General Counsel concludes
The second amended complaint was amended at tnal to include the
allegation that Respondent has refused to reinstate Bach to her former
position.
that the fake newsletter was a protected concerted activi-
ty. Beltramo, one of its authors, stated that she wrote it
to air collective concerns, notes the General Counsel.
While the General Counsel does not contend that the
newsletter "necessarily presaged any formal attempt at
employee self-organization," counsel for the General
Counsel does argue that it is hard "to imagine a concert-
ed employee undertaking more fundamental to any incip-
ient union organizing drive than this effort to inspire
fellow employees through a bold attack of [sic] long re-
sented management failings." Respondent knew that Bel-
tramo had acted in concert with other employees in
writing the fake newsletter, argues the General Counsel,
and, having disciplined Beltramo for her protected activ-
ity under those circumstances, violated Section 8(a)(1) of
the Act.
Turning to the two challenged work rules, the General
Counsel notes that Respondent admitted maintaining
them in its employee handbook. The test, argues the
General Counsel, is not Respondent's motives for main-
taining the work rules, but whether the challenged rules
have a tendency to interfere with or restrain employees'
exercise of their statutory rights. The two rules are, says
the General Counsel, overbroad on their face and consti-
tute violations of the Act. Moreover, asserts the General
Counsel, because Respondent based its 6 January 1984
discharge of Beltramo in part on the "Confidential Infor-
mation" rule, the discharge violated the Act, for that
reason alone.
Respondent's second discharge of Beltramo, on 7 Feb-
ruary 1984, also violated the Act, in the view of the
General Counsel, who fmds that Beltramo's efforts to
enlist the aid of the advisory board involved no untruths,
were not disorderly, and were a continuation of her ac-
tivity with respect to the newsletter. In any event, argues
the General Counsel, Beltramo would not have been dis-
charged on 7 February 1984, but for the fact that she
had been illegally discharged on 6 January 1984. More-
over, asserts the General Counsel, the 7 February 1984
discharge was motivated by Respondent's hostility
toward her because she had filed an unfair labor practice
charge.
The General Counsel argues that the evidence estab-
lishes that Charging Party Bach was discharged on 23
February 1984, because she had opposed Respondent's
treatment of Charging Party Beltramo. As early as 6 Jan-
uary 1984, the General Counsel points out Bach told Di-
rector of Nursing Mahon that she did not support the de-
cision to discharge Beltramo; Mahon's response was to
lecture Bach on the latter's duty to support all adminis-
trative decisions. Later, according to the General Coun-
sel, Mahon refused to allow Bach to appear as a witness
for Beltramo in the latter's appeals board proceeding in
January 1984, and, by implication, Mahon refused to
allow Bach to appear as a witness for Beltramo in the
latter's 21 February 1984 appeals board hearing. Accord-
ing to the General Counsel, the timing of Respondent's
discharge of Bach on 23 February 1984 shows that Re-
spondent's asserted reasons were pretextual, and, that the
real reason was because Bach "openly opposed and at-
PONTIAC OSTEOPATHIC HOSPITAL 447
tempted to disassociate herself from the unfair labor
practices committed against Beltramo."
The General Counsel contends, first, that since Bach
was discharged after she had been demoted from "clini-
cal nurse coordinator" to "staff nurse," she was a statu-
tory employee, and her efforts to come to Beltramo's aid
after her demotion (on February 1984) were protected
concerted activities. But, continues the General Counsel,
even if it is found that she was discharged because of her
actions as a supervisor, her discharge on 23 February
1984 still violated the Act. The Board has held, notes the
General Counsel, that punishing a supervisor for oppos-
ing unfair practices undermines the Section 7 rights of
employees, and, therefore, violates Section 8(a)(1).
Finally, with regard to Charging Party Bach, the Gen-
eral Counsel argues that her second discharge, on 22
March 1984, was vindictive, and "largely based on
Mahon's refusal to accept the Appeals Board's recom-
mendation in Bach's case." Thus, even though it was not
alleged in the complaint as a violation of the Act, the
General Counsel says, the second discharge was "merely
a furtherance of its [Respondent's] original discharge de-
cision."
The General Counsel concludes that the suspension of
Charging Party McKay on 7 May 1984 was in retaliation
for her protected concerted activities in coauthorizing
the satirical newsletter on 31 December 1983. According
to the General Counsel's argument, the suspension im-
posed on her on 7 May 1984 constituted disparate treat-
ment. Even Respondent's agent, Robert Rood, says the
General Counsel, referred to the suspension as an "obvi-
ous set-up job." Thus, contends the General Counsel, the
suspension was intended to punish McKay for the pro-
tected concerted activity, as was the adverse counseling
record issued to her on 14 May 1984.
Referring to the affirmative defense raised by Re-
spondent, the General Counsel argues that the Board's
policy of deferral is not applicable in this case, because
there was no collective-bargaining agreement containing
a grievance and arbitration procedure in existence, and
the requirements for deferral established by the Board
were not met. Among other things, contends the General
Counsel, the parties had not agreed to be bound by the
award of the appeals board, and its procedures, in any
event, were not fair and regular, violating as they did,
"fundamental due process standards."
Finally, argues the General Counsel, Respondent
cannot escape the appropriate remedies of reinstatement
with backpay for Beltramo and Bach, on the theory they
forfeited their rights to reinstatement by reason of their
conduct. For one thing, asserts the General Counsel, all
the alleged misconduct occurred before they were dis-
charged, and, in any event, whenever it occurred, none
of the alleged misconduct was of such a character as to
bar reinstatement.
B. Respondent's Theory of the Case
Respondent urges that the National Labor Relations
Board defer to Respondent's appeals board decisions in
the cases of the three Charging Parties. In the event that
there is no deferral, Respondent takes the position that
Charging Parties Evelyn Bach and Bonnie Beltramo
were not "employees" within the meaning of the Act;
and, that none of the Charging Parties were disciplined
by Respondent for conduct protected by the Act. To the
contrary, argues Respondent, all three Charging Parties
were disciplined for cause. Further, contends Respond-
ent, its employees did not rely on the challenged provi-
sions of the employee handbook as a basis for disciplin-
ing the three Charging Parties, and, in any event, the
challenged provisions do not violate the Act. On the
other hand, notes Respondent, it has sought the General
Counsel's approval since October 1984 for alternative
language, without success. Finally, argues Respondent,
neither reinstatement nor backpay would effectuate the
purposes of the Act, even if it is found that Respondent
violated the Act.
Respondent concedes the Board's jurisdiction for pur-
poses of the consolidated complaint; however, it denies
that it took any action that had an adverse affect on
interstate commerce.
Respondent notes that it is the Board's policy to defer
to binding arbitration decisions where the proceedings
appear to have been fair and regular, the parties agreed
to be bound, and the decisions are not clearly repugnant
to the purposes and policies of the Act. The appeals
board, contends Respondent, was developed by the hos-
pital and its employees to resolve differences. An elected
employee counsel, says Respondent, drafted the appeals
board's rules. It has been Respondent's policy from the
start, claims Respondent, not to overturn or reject deci-
sions of the appeals board, and the Board has been per-
mitted to operate independently of management's influ-
ence. Cases are initiated only by employees, notes Re-
spondent, and the employees whose cases are heard by
the appeals board are represented by an employee advo-
cate. Each side has the opportunity to submit documents,
call witnesses, cross-examine witnesses for the other side,
and argue its own position before the appeals board;
thus, says Respondent, proceedings before the appeals
board are "fair and regular." There being nothing repug-
nant to the purposes of the Act about the appeals board
procedure, concluded Respondent, the National Labor
Relations Board should defer to Respondent's appeals
board's decisions in the cases of the three Charging Par-
ties.
Charging Party Bach, contends Respondent, was "su-
pervisor" within the meaning of Section 2(11) of the
Act, as is clear from the fact that she had "both the au-
thority to hire and to discipline employees and did so."
Because she was not an employee, within the meaning of
the Act, she had no rights under Section 7, concludes
Respondent. She was not asked, says Respondent, to do
anything contrary to the Act, nor did she protest or
object to instructions to discharge Charging Party Bel-
tramo. Accordingly, Respondent contends she was not
disciplined for protesting or refusing to undertake con-
duct contrary to the Act, nor was such a reason ever
communicated to any employee of Respondent. There-
fore, Respondent concludes there is no basis for exten-
sion of Section 7 rights to Bach.
Respondent argues that Charging Party Beltramo also
had sufficient supervisory authority to be considered a
448 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
"supervisor" within the meaning of the Act. In particu-
lar, says Respondent, on 31 December 1984, when she
participated in writing the fake newsletter, she was a su-
pervisor because she had assumed Bach's supervisory
duties in the latter's absence, and her responsibilities as a
"charge nurse" were generally supervisory in nature.
In any event, contends Respondent, her preparation of
the fake newsletter was not a protected concerted activi-
ty. It was not, says Respondent, related to "an active,
concrete dispute between the hospital and any of its em-
ployees"; moreover, much about the claimed dissatisfac-
tions was untrue. Charging Parties Beltramo and McKay
never expressed their concerns relating to these matters
through the lines of communication procedures in the
employee handbook according to Respondent. Nor did
Beltramo make any effort "to channel any of her sup-
posed concerns to the PACE Committee at any time
whatsoever," Respondent claims.
Beltramo admitted, Respondent says, that the fake
newsletter did not look toward group action, was never
intended to be distributed to or seen by her supervisors,
was not intended to change anything, and was meant to
"blow off steam," to "complain," and to "gripe." In the
course of discussions, says Respondent, Beltramo re-
ferred to the newsletter as a joke, and said it was intend-
ed for comic relief.
Activity of such a nature is not "protected concerted
activity," argues Respondent. To be protected, an activi-
ty must look toward group action; it cannot make exag-
gerated, false, and derogatory comments about top level
management; and, the employee must communicate the
unsatisfactory employment condition to management,
Respondent says. Mere griping is not enough, Respond-
ent asserts, nor is the venting of a personal grievance; the
activity must be intended to adjust or resolve a griev-
ance.
Respondent concedes that Charging Party Beltramo
was terminated on 6 January 1984, as a result of the fake
newsletter, for "[a]cts of disloyalty detrimental to the
best interests of the hospital." On the other hand, says
Respondent, no action was ever taken against Charging
Party McKay as a result of the newsletter.
In any event, says Respondent, the 6 January 1984 dis-
charge of Charging Party Beltramo was nullified by the
appeals board's action, which reinstated her, following a
30-day suspension beginning 5 January 1984. Her second
discharge, Respondent goes on, was for cause, and not
for any protected concerted activity, and therefore did
not violate the Act.
Likewise, says Respondent, the discharge of Charging
Party Bach on 23 February 1984 was for cause, as was
her second discharge on 22 March 1984. Mahon, the, di-
rector of nursing, discharged Bach on the first occasion
for "unsatisfactory work performance," contends Re-
spondent; the newsletter had nothing to do with it. Even
under the Wright Line case (251 NLRB 1083 (1980),
enfd. as modified 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982)), Respondent continues, the
General Counsel must prove by a preponderance of the
evidence that but for the discharged employee's purport-
ed exercise of protected rights, there would have been
no discharge. In this case, says Respondent, Bach would
have been terminated in any event based on the informa-
tion received by Mahon prior to discharging her indicat-
ing mismanagement on Bach's part. Bach's second dis-
charge, concludes Respondent, was brought about by her
refusal to cooperate with the retraining program mandat-
ed by the appeals board. Thus, it, too, was for cause,
says Respondent, and was entirely unrelated to the fake
newsletter.
As for the 5-day suspension imposed on McKay in
May 1984, it occurred more than 4 months after the fake
newsletter incident, argues Respondent, and it was for
her admitted misconduct on 3 May 1984, when she left
her job at Oxford Health Care Center without permis-
sion. The suspension was not disparate punishment for
the misconduct, contends Respondent, because it in-
volved a violation of a clear hospital tiolicy for which
discharge was authorized. On the other hand, says Re-
spondent, the employee counseling record issued to
McKay on 14 May 1984 was not disciplinary in nature; it
was corrective. It was not part of the progressive disci-
plinary system, nor was it the equivalent of a written
reprimand. Further, Respondent argues, the General
Counsel has not shown that the treatment McKay re-
ceived was disparate, and Mahon testified that the fake
newsletter was not a factor in the imposition of the 5-day
suspension.
Respondent contends there is no "case or controver-
sy" concerning the two challenged provisions of its em-
ployee handbook. The provisions were prepared years
ago for legitimate hospital purposes, according to Re-
spondent, and neither section has been applied in a
manner contrary to the Act. Because the two provisions
have not been applied in a manner violative of the Act
says Respondent, the allegations of the second amended
complaint concerning them should be dismissed. In the
alternative, Respondent states that it will consent to
entry of an order requiring substitution of its suggested
replacement language for the two provisions.
Beltramo, who engaged in a series of pranks and jokes
at the Oxford Health Care Center, unfettered and uncon-
trolled by Bach, had a distinct and clearly negative effect
on interstate commerce. Therefore, says Respondent, re-
instatement of either one of them would be contrary to
the purposes and policies of the Act. Neither is it the
purpose of the Act, says Respondent, to condone the in-
tentional desertion by McKay of her employment re-
sponsibilities. Accordingly, concludes Respondent, no
award of backpay or reinstatement is appropriate.
III. FINDINGS AND CONCLUSION
A. Bonnie Beltramo
1. Charging Party Beltramo was an "employee"
under Section 2(3) of the Act
Charging Party Bonnie Beltramo, a clinical nurse,
began her employment at the Oxford Health Care Center
on 1 July 1980. 2 She was discharged from that position
2 As previously indicated she worked as a staff nurse in the emergency
room at Pontiac Osteopathic Hospital from 5 September 1978 until she
transferred to the Oxford Health Care Center.
PONTIAC OSTEOPATHIC HOSPITAL 449
for the second and last time on 7 February 1984. Her su-
pervisor at the Oxford Health Care Center for the entire
time was Charging Party Evelyn Bach.
Beltramo agreed in her testimony that at times prior to
22 December 1983, she acted as charge nurse, or the
nurse responsible for the Oxford Health Care Center on
duty nursing staff employees in the absence of Bach. She
testified that she was in charge of the two clinical techni-
cians on duty with her on 31 December 1983, because
Bach was not in the building.
In support of its argument that Beltramo was a super-
visor under the Act, Respondent points to the testimony
by Bach that she had taken 5 or 6 days off around 31
December 1983, and that she had designated Bonnie Bel-
tramo to be in charge when the latter was on duty, and
Shelley Austin (another registered nurse employed at the
Oxford Health Care Center) to be in charge when she
was on duty. Respondent also cites testimony by Mahon,
Respondent's director of nursing, that a charge nurse has
a number of responsibilities, including scheduling and
making recommendations concerning hiring, pay, wage
increases, standards of practice, policies, and patient care.
Mahon's testimony on this point, however, has been
taken out of context, as she was describing her responsi-
bilities in previous employment as the charge nurse in
the emergency room of Bay City Mercy Hospital, and
not the responsibilities of a charge nurse at Respondent's
hospital or at its health care centers, in general, or the
responsibilities of Beltramo, in particular.
The Act defines the term "employee" in Section 2(3)
as follows: "The term "employee" shall include any em-
ployee. . . but shall not include. . . any individual em-
ployed as a supervisor. . . ." It is well established that a
person who works for an employer is an employee
within the Act unless the employment falls within an ex-
cluded category. It is also well established that an indi-
vidual's status is determined by his or her duties, not by
a job title or theoretical power. Winco Petroleum Co., 241
NLRB 1118, 1122 (1979).
Section 2(11) defines a supervisor as any person having
authority in the interest of the employer, to hire, trans-
fer, suspend, lay off, recall, promote, discharge, assign,
reward, or discipline other employees, or responsibly to
direct them, or to adjust their grievances, or effectively
recommend such action, if. . . such authority is not of a
merely routine or clerical nature, but requires the use of
independent judgment.
It is not necessary in order to be classified as a super-
visor that a person exercise all the criteria of Section
2(11). It is sufficient to classify an employee as a supervi-
sor if he or she meets one of the 12 tests. NLRB v. Yeshi-
va University, 444 U.S. 672 (1980). But, mere possession
of one or more of the powers enumerated in Section
2(11) does not alone confer supervisory status. Supervi-
sory status exists only when the supervisory functions
are exercised in a manner requiring the use of independ-
ent judgment, and not merely in a routine or clerical
manner Hydro Conduit Corp,, 254 NLRB 433 (1981).
"[T]he statute expressly insists that a supervisor (1) have
authority (2) to use independent judgment (3) in per-
forming such supervisory functions (4) in the interest of
management." NLRB v. Security Guard Service, 384 F.2d
143, 147-148 (5th Cir. 1967).
The Board further held, in the case of a registered
nurse who worked as a staff nurse and, sporadically, as
an acting relief supervisor, that "her limited role as
acting relief supervisor was insufficient to warrant the
conclusion that she was a supervisor within the meaning
of the Act." Canonsburg General Hospital Assn., 244
NLRB 899, 900 (1979). The Board noted in making its
decision that the nurse involved did not spend a substan-
tial or significant portion of her working time as an
acting relief supervisor, and that her principal substitu-
tion for the nursing or regular relief supervisors occurred
during their vacation time and otherwise was sporadic
and irregular.
"Mlle burden is on the party alleging supervisory
status to prove that it, in fact, exists." Commercial
Movers, Inc., 240 NLRB 288, 290 (1979). Respondent in
this case has failed to meet that burden with regard to
Bonnie Beltramo.
The record here established only that Beltramo, at un-
specified times prior to 22 December 1983, and for some
portion of a 5- or 6-day period around 31 December
1983, was "in charge" of other employees at the Oxford
Health Care Center, in the absence of Bach, the clinical
nurse coordinator and regular supervisor. Nowhere is it
indicated what powers Beltramo could or did exercise
while "in charge," or even how often, over any ascer-
tainable period of time, she actually was "in charge."
There is nothing, in fact, to indicate that she ever had
the authority to exercise any of the criteria of superviso-
ry authority listed in Section 2(11), much less that she
actually exercised any of them, or that whatever she did
do while "in charge" required the exercise of independ-
ent judgment and was not merely routine.3
Moreover, it cannot be ascertained from the record
whether Beltramo's authority when "in charge" was pri-
marily exercised in providing patient care, or in supervis-
ing employees on behalf of management. In Misericordia
Hospital v. NLRB, 623 F.2d 808 (2d Cir. 1980), the
Second Circuit enforced the Board's decision and order
in 246 NLRB 351 (1979), holding, in part, that a head
nurse was not a supervisor under the Act where her au-
thority was exercised primarily in providing patient care,
not in supervising employees in the interest of the em-
ployer. The court noted that the Board's
test for determining whether a health care profes-
sional is a sUpervisor is whether that individual,
who may give direction to other employees in the
exercise of professional judgment which is inciden-
tal to the professional's treatment of patients, also
exercises supervisory authority in the interest of the
employer. [Quoting, Newton-Wellesley Hospital, 219
NLRB 699, 699-700 (1975).]
3 As previously noted, Mahon's testimony adds nothing to the facts
pertaining to this issue because her testimony concerned her own earlier
responsibilities as a charge nurse for another employer, and not Beltra-
mo's responsibilities for this employer.
450 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Of that test, the court said that "while not simple to
apply, [it] has nonetheless received the express approval
of Congress, as the Supreme Court noted in Yeshiva,
supra."4 Misericordia Hospital v. NLRB, 623 F.2d at 625.
Thus, the mere fact that Beltramo was at times "in
charge" of other employees does not establish that she
possessed or exercised any of the statutory indicia of su-
pervisory status.
Neither West Florida Hospital, 273 NLRB 1421 (1985),
nor Albany Medical Center Hospital, 273 NLRB 485
(1984), both of which are cited by Respondent, support
the proposition that Beltramo had sufficient supervisory
authority to be deemed a supervisor. In West Florida
Hospital, the Board held that the evening coordinator in
the operating room of the hospital was a supervisor, be-
cause for most of the evening shift he was the person of
highest authority in the operating room, and, in carrying
out his responsibilities, which included assigning and di-
recting employees and effectively recommending that
they be disciplined, rewarded, or promoted, he exercises
"independent judgment to ensure that employees carried
out Respondent's requirement of them." In Albany Medi-
cal Center, the Board held that assistant head nurses,
who had "authority effectively to promote and regard
employees working under them," were supervisors. In
that case, the Board found that assistant head nurses
spent 50 percent of their time taking care of patients'
needs, and the remainder performing administrative
tasks. The Board further commented that if they were
not supervisors, the supervisor-to-employee ratio on
evening and night shifts would be inordinately low. In a
similar vein, the Board commented in West Florida Hos-
pital that if the evening coordinator was not a supervisor,
the 15 operating room employees would have been unsu-
pervised for about 6 hours a day, "an unlikely situation,"
in the Board's view.
In the case of Beltramo, there is no evidence that her
responsibilities on the intermittent and sporadic occasions
when she was "in charge" were anything other than to
ensure that the patients' needs were met, and that her su-
pervision of other employees, to whatever extent she did
so, was anything other than incidental to the treatment
of patients. At best, her role as "in charge" nurse was
limited; there is no evidence that it was a regular occur-
rence that occupied a substantial or significant portion of
her working time. Nor, is there any evidence that she ex-
ercised independent judgment, or possessed or exercised
any of the indicia of supervisory status listed in Section
2(11) of the Act. Her situation clearly was distinguish-
able from that of the medical personnel whose status was
at issue in West Florida Hospital and Albany Medical
Center.
I find no basis for concluding that Beltramo was a su-
pervisor under the Act. Such evidence as there is points
strongly to the conclusion that she did not possess or ex-
ercise any of the statutory indicia of supervisory status,
and, that she was, in fact, an employee under the Act.
The burden of proof being on Respondent to establish
her supervisory status, and Respondent having failed to
4 NLRB v. Yeshiva University, 444 U.S. 672 (1980).
meet that burden, I find that Beltramo was an employee
under Section 2(3) of the Act.
2. The fake newsletter prepared by Bonnie Bel-
tramo and Sharon McKay on 31 December 1983
was a protected concerted activity
The protection extended to employees by Section 7 of
the Act is not limited to the right to engage in union ac-
tivity or engage in collective-bargaining activities. NLRB
v. Washington Aluminum Co., 370 U.S. 9 (1962). It in-
cludes activity engaged in for "other mutual aid or pro-
tection." But, to be protected, employee activity must be
both "concerted" in nature and undertaken for the pur-
pose of "other mutual aid or protection." 5 Ontario Knife
Co. v. NLRB, 637 F.2d 840 (2d Cir. 1980).
At the outset, I fmd that there is overwhelming evi-
dence that the preparation of the fake newsletter was a
"concerted" activity. "Concerted," by definition, means
done or performed by two or more together or in coop-
eration. 6 The fake newsletter at issue in this case was
written and prepared by two employees of Respondent,
Bonnie Beltramo and Sharon McKay, who acted togeth-
er and in cooperation with each other. A third, but lesser
contributor to the fake newsletter, was Sharon Meyers,
another of Respondent's employees, who edited the two
pieces authorized by Beltramo and McKay.
According to the testimony of Beltramo, whom I fmd
to have been a credible witness on this point, on the
morning of 31 December 1983, between 9 and 915 a.m.,
she and McKay were seated at the nursing station at
Oxford Health Care Center. Beltramo, who was reading
the latest issue of "POH People," Respondent's in-house
newsletter, pointed out to McKay that Beltramo did not
feel that the activities of Oxford Health Care Center em-
ployees were adequately represented in the newsletter.
McKay agreed, and the two decided to write their own
newsletter. According to Beltramo, the fake newsletter
was in her handwriting, but she and McKay collaborated
on the wording of the main article, and the second of the
two articles was composed by McKay. After finishing
the fake newsletter, Beltramo gave it to her sister, Clini-
cal Technician Sharon Meyers, to read, and Meyers
pointed out a "couple" of spelling errors, a "couple" of
punctuation errors, and suggested a grammatical change.
Sharon McKay gave similar testimony. She stated that
on the morning of 31 December 1983 she and Bonnie
Behramo were at the nurses' station at the Oxford
Health Care Center. After finishing reading an issue of
"POH People," Beltramo commented on its poor quality
and absence of much to say. McKay agreed, and further
agreed to Beltramo's suggestion that they write their
own newsletter. The two of them went to the clean utili-
ty room, where they jointly composed and Beltramo
transcribed the fake newsletter at issue in this case.
McKay said that it was her idea to write the article enti-
5 Sec. 7 provides, in pertment part: "Employees shall have the right
. . ., to engage in other concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection . . ."
6 The issue of whether the activities of a smgle employee can also be
"concerted" for purposes of the Act does not arise under the facts of this
case.
PONTIAC OSTEOPATHIC HOSPITAL 451
tied "A Salute to Judy," and that she contributed ideas
to the other part of the newsletter.
Sharon Meyers testified that she was scheduled to
work on 31 December 1983 at the Oxford Health Care
Center, and that she arrived about 9:30 a.m. There were
no patients in the Center at the time. She found Beltramo
and McKay in the clean utility room, and was handed a
piece of paper to read by Beltramo. The paper was the
original of the fake newsletter. Meyer told Beltramo that
"it hit right where it lives, and the hospital always did
treat us like a bastard child." Beltramo took the fake
newsletter from the room, and returned a few minutes
later with copies, one of which she gave to Meyers.
Meyers initially testified that she pointed out a few mis-
takes in spelling and grammar, and watched while Bel-
tramo corrected them. She said she did not recall wheth-
er Beltramo made the corrections on the photocopy or
the original. Later, Meyers corrected her testimony,
saying that she had mixed up the sequence of events, and
that she had pointed out the mistakes before the copies
were made and Beltramo then made the corrections on
the original.
I fmd it clearly established by the evidence that
Charging Party Beltramo and Charging Party McKay
collaborated in jointly authoring and producing the fake
newsletter. They agreed on the concept, and each of
them contributed thoughts and words to the finished
product. It was not a situation in which McKay gave
only casual assistance to Beltramo. It was a joint enter-
prise, from start to finish. The fact that the newsletter
was in Beltramo's handwriting is immaterial. Whether
the activity was concerted is determined by such factors
as to how the idea originated, and the authorship of the
finished product, and not by who performed the function
of scribe. Applying that criteria, I fmd that the fake
newsletter was a concerted activity within the meaning
of Section 7 of the Act.
As already stated, Section 7 protects concerted activi-
ty for the purpose of "other mutual aid or protection."
The Supreme Court has recognized that Congress in-
tended the "mutual aid or protection" clause to be broad,
reaching beyond grievance settlement, collective bar-
gaining, and union activity. This clause of Section 7 has
been held to reach concerted activities of employees in
support of employees of other employers, and employ-
ees' efforts to improve terms and conditions of employ-
ment through channels other than the employee-employ-
er relationship, including resort to administrative forums
and legislators. Eastex, Inc. v. NLRB, 43 U.S. 556, 565
(1978); Kaiser Engineers v. NLRB, 538 F.2d 1379 (9th
Cir. 1976), enfg. 213 NLRB 752 (1975). In Eastex, Inc.,
supra, the Supreme Court, while noting "that some con-
certed activity bears a less immediate relationship to em-
ployees' interest as employees than other such activity,"
and "that at some point the relationship becomes so at-
tenuated that an activity cannot fairly be deemed to
come within the 'mutual aid or protection clause," went
on to hold "[t]hat task is for the Board to perform in the
first instance as it considers the wide variety of cases that
come before it." The Supreme Court in Eastex rejected
7 Rastex, Inc. v. NLRB, supra at 567-568
as unpersuasive the cases cited by the petitioners in sup-
port of its argument that to be protected under Section
7, concerted activity must seek a specific remedy for a
work-related complaint or grievance.8
The handwritten newsletter at issue here appears
under the printed masthead, "Pontiac Osteopathic Hospi-
tal People," bearing the date, December 1985. It contains
two handwritten articles, one entitled "Oxford Succeeds
[sic] from POH," and the other, "A Salute to Judy."
The first article announces that OHCC (Oxford Health
Care Center) declared its independence from Pontiac Os-
teopathic Hospital, as a result of a long series of disap-
pointments suffered by OHCC's staff. The article at-
tributes the statement, "The OHCC is as much a part of
POH as the trash removal service," to Lamberti, identi-
fied as the assistant administrator. Lamberti is also
quoted as refuting claims that OHCC has been ignored
and unacknowledged since opening 3 years earlier by
stating, "I've been out there twice—I know its there." J.
Whitlow, identified as the administrator, is quoted as er-
roneously referring to the Oxford Health Care Center as
the "Botsford Health Care Center." Elsewhere in the
first article, an "unidentified employee" is quoted as
saying, "We've been kept off any committees that have
been formed—(Staff Nurse Counsel, PACE Committee;
Quality Circle). We never hear any news and any arti-
cles that we submit are not published."
The second article states that "Judy," identified as
"OHCC's newest Administrator," thanks the staff of
"P011 People" for keeping her car on the road. In sub-
stance, "Judy" is quoted as saying that she uses "POH
People" as weights in the back of her car to give it trac-
tion on slippery roads. The article continues by quoting
"Judy" as saying, "after the roads improve with the
wheather [sic], she uses the in-house publication for place
mats." 1°
In her direct testimony during the trial, Beltramo
stated that she wrote the newsletter because she was
frustrated and angry about many of the events that had
taken place since the health care center had opened, and
she wanted to air her grievances. She stated that she felt
the health care center staff was not kept abreast of
events at the main hospital and positions that became
open, and that the health care center was not adequately
represented in the POH People newsletter. Beltramo said
that the health care center had been promised two seats
on the PACE Committee, but that she had recently re-
ceived notice that she had not been selected, and knew
that no one else from the health care center had been se-
lected. Beltramo testified that the newsletter that she and
McKay wrote was intended for the coworkers on Beltra-
mo's shift.
On cross-examination, Beltramo testified that she
would characterize the newsletter as satire, and, because
it was written in a satirical and sarcastic fashion, as well
a Id. at 567 fn. 17.
9 The PACE Committee was established in 1983 by POH's executive
director, Jack H. Whitlow, as an advisory group made up of employees
and management personnel, who review hospital procedures and prob-
lems, and propose solutions.
1 ° Judy refers to OHCC Administrator Judy Garner.
452 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
as its sloppy physical appearance, nobody would mistake
it for an official newsletter. She stated that she intended
it to go no further than the three other employees on her
shift to whom copies were distributed. She said that it
did have something to do with trying to improve work-
ing conditions, because it would improve morale and
make "us" feel better to identify "our" problems and
laugh about them. At another point in cross-examination,
Beltramo referred to the newsletter as a "humorous
outlet," but also said she was identifying and airing a
grievance to her coworkers, Meyers, McKay, and Oko-
lovitch. She admitted that she intended "to poke fun" at
Whitlow and Lamberti, respectively, the executive direc-
tor of the hospital and his executive assistant, but denied
that she intended to poke fun at any of Judy Gardner's
traits." Beltramo admitted that she did not intend the
newsletter to be A vehicle for adjusting grievances.
In further testimony, Beltramo stated that she felt the
problems of the Oxford Health Care Center were that
the administration of the hospital attached little impor-
tance to it, and that there was a lack of effective commu-
nication with the main hospital. She said that while the
newsletter was exaggerated, she hoped the people to
whom she showed it would recognize the problems, and
that would improve morale. She admitted that she might
have told Rita Mahon, the director of nursing, that the
newsletter was a joke or prank, and that she told the ap-
peals board that it was not so significant that she should
lose her job over it. 12 Beltramo said she felt that the
newsletter was a means of group communication. She
also said it was a way to "blow off steam," to complain,
and to gripe.
Sharon McKay testified that she agreed with Beltra-
mo's observation that the POH People newsletter "really
didn't say much," and that she participated in writing the
fake newsletter on 31 December 1983. It was, said
McKay, her idea to write the piece entitled "A Salute to
Judy," and she contributed ideas to the rest of the news-
letter. McKay stated that she told Rita Mahon that the
fake newsletter was written because of feelings of frus-
tration, and that even McKay's husband, if he had read
the newsletter, would not have known what it meant.
McKay said that she also testified at Beltramo's appeals
board hearing on 13 January 1984 that no harm was
meant by the newsletter to anyone personally. On cross-
examination, during the trial of this case, McKay ac-
knowledged that the newsletter was not a serious at-
tempt to get grievances adjusted. Its only purpose, she
said, was venting off anger.
According to Rita Mahon, Respondent's director of
nursing, on 5 January 1983, Beltramo admitted she had
written the newsletter, but said that she did not mean
anything by it. Mahon testified that she told Beltramo
that as she was the author, she was responsible for it and
that it posed serious potential harm to the Center, her
11 Under a reorganization plan put into effect in late 1983, Gardner,
who had formerly been the administrative assistant at the Oxford Health
Care Center, was put in charge of clerical personnel and physical facili-
ties at the Center.
12 Eteltramo testified that she told the appeals board that she deserved
to be punished, but not to be fired. She stated that she felt she had mis-
used the hospital's copy machine.
coworkers, and the hospital. To this, according to
Mahon, Beltramo replied that she had written it in a
moment of frustration to provide some comic relief, that
it was a bright spot in her morning, and that she meant
nothing by it. Mahon stated that she told BeWarn° that
she did not think she could afford to keep a nurse who
communicated in that fashion, and that she expected reg-
istered nurses to provide positive, concrete examples, and
to serve as role models for the rest of the staff. Follow-
ing further remarks in this same vein, according to
Mahon, Beltramo said it was nothing but a joke. At the
conclusion of the confrontation, Mahon told Beltramo
that she was suspended. The next day, 6 January 1984,
Mahon terminated Beltramo's employment. Beltramo, ac-
cording to Mahon, again said that she meant nothing by
the newsletter.
At her appeals board hearing, according to Mahon,
Beltramo said that she had made three copies of the
newsletter and distributed them to the people she
worked with. She stated further that they just laughed, it
was of no significance and meant nothing to them, it was
just a minor incident.
Patrick Lamberti, executive assistant at Pontiac Osteo-
pathic Hospital (second in charge at the hospital), stated
that he was present on 5 January 1984 when Be!tram°
was questioned by Mahon about the newsletter. Accord-
ing to Lamberti, Beltramo was upset, and "did not un-
derstand why we were trying to make such a big deal
out of it." Lamberti testified that Beltramo "assured us it
was not to be taken serious," and "that it was a joke."
He said that Beltramo stated that she meant nothing by
it, that she was not trying to hurt anybody, that she was
just trying to be funny.
The authors of the fake newsletter used the literary de-
vices of satire and irony to mock or censor Pontiac Os-
teopathic Hospital and its top administrative officials,
Jack H. Whitlow and Patrick Lamberti, for some of the
hospital's policies towards the Oxford Health Care
Center, and for the lack of, in the authors' opinion,
worthwhile material in POH People, the hospital's in-
house newsletter. While their effect may arguably fall
into the category of bad writing, the fact that the authors
used the literary techniques of satire and irony to make
their point, as opposed to a more neutral factual recita-
tion of their dissatisfaction, does not deprive the commu-
nication that they produced of any protection under Sec-
tion 7 of the Act to which it might otherwise be entitled.
Satire and irony are recognized literary terms of expres-
sion. They can be as useful and appropriate in labor rela-
tions writing as in writing for any other purpose.
The key word, of course, is purpose. Section 7 gives
employees the right to engage in other concerted activity
for the purpose of other mutual aid or protection. I have
already concluded that the writing at issue in this case
was a concerted activity; the remaining question is
whether it was for the purpose of other mutual aid or
protection. In general terms, if a writing amounting to a
concerted activity was for the purpose of other mutual
aid or protection it is protected under Section 7 regard-
less of its style.
PONTIAC OSTEOPATHIC HOSPITAL 453
The Supreme Court, in Eastex. Inc. v. NLRB, supra,
recognizing that Congress intended that the protection of
the other mutual aid or protection clause of Section 7 be
broad, stated that it is the Board's responsibility in the
first instance to decide what activity comes within the
protection of the Act. The matters about which Bel-
tramo and McKay complained in the fake newsletter re-
lated to complaints by Pontiac Osteopathic Hospital em-
ployees that they were kept off committees, that they
never heard any news (of the main hospital), and that
they were unsuccessful in getting articles that they sub-
mitted published in the hospital's in-house newsletter,
POH People. Clearly, the matters discussed in the fake
newsletter related to employees' concerns and conditions
of their employment. They bore, in fact, an immediate
relationship to the employees' interests as employees.
That relationship was not so attenuated that it does not
come within the mutual aid or protection clause. Eastex,
Inc. v. NLRB, supra.
There is no rule that only concerted activity undertak-
en for the purpose of having a grievance adjusted or in
anticipation of some other action is entitled to protection
under Section 7, as argued by the Respondent. Neither is
it significant that Beltramo took no direct action to com-
municate her dissatisfaction with employment conditions
to her supervisor or anyone else associated with Re-
spondent's management." The fact that no plan for deal-
ing with their dissatisfaction with terms and conditions
of employment had been yet devised or agreed on by
Beltramo, McKay, and their coworkers, does remove
their concerted activity from the protection of Section 7
by the immediacy of its relationship to their interests as
employees, and to conditions of their employment.
Action taken by employees to resolve disputes con-
cerning terms and conditions of employment seldom
occurs spontaneously. In almost every instance, action,
whether it be to adjust a grievance or resolve a dispute
concerning terms and conditions of employment in some
other fashion, is the result of discussions among employ-
ees and accommodations of varying points of view until
a common course of action is agreed on. Before there
can be agreement on a course of action to resolve a
problem, there first must be communication among the
employees leading to agreement that there is a problem,
and then agreement on what course of action to take.
13 Mushroom Transportation Co. v. NLRB, 330 F.2d 683 (3d Cir. 1964);
Indiana Gear Works v. NLRB, 371 F.2d 273 (7th Cir. 1967); Tyler Busi-
ness Services v. NLRB, 680 F.2d 338 (4th Cir. 1982); Blaw-Knox Foundry
& Mill n NLRB, 646 F.2d 113 (4th Cir. 1981); Felton Casteel, Inc. v.
NLRB, 627 F.2d 23 (7th Cir. 1980); NLRB a Buddies Supermarkets, 481
F.2d 714 (5th Cir. 1973); and other cases cited by Respondent, do not
support the Respondent's argument that protected concerted activity
must look toward group action, and must be more than mere griping or
the venting of personal grievances. The issue in each of the cases cited by
the Respondent was whether the activities of a single employee could be
considered concerted for purposes of the Act. Variously in the cases
cited, courts of appeals held that to be protected, a single individual's ac-
tivity must have been undertaken for the purpose of inducing or prepar-
ing for group action, or on behalf of a group of employees; personal mis-
sions are not considered concerted activity under any test. Blaw-Knox
Foundry & Mill v. NLRB, supra The holdings in these cases, however,
are inapposite to the instant case, because here the activity in question
involved at least two individuals who collaborated in the Joint authorship
of a newsletter. Their activity was by its very nature concerted.
These preliminary steps can be accomplished only
through full and free communication among the employ-
ees, and it is of no importance whether that communica-
tion is oral or in writing.
It is ludicrous to suggest that before concerted activity
is protected by Section 7, it must have reached the ad-
vanced stage of agreement by two or more employees on
a particular course of action. Obviously, if that were the
case, an alert employer, so inclined, could thoroughly,
and with relative impugnity, frustrate the purposes of the
Act by ferreting out and getting rid of dissatisfied em-
ployees before they are able to identify and communicate
with other employees similarly dissatisfied with terms
and conditions of employment, and convince them to
join in a common course of action. In short concerted
activity for the purpose of other mutual aid or protection
has to start somewhere, and for the protection of the Act
to mean anything, such activity must be protected at the
start, as well as at later stages when action is taken
against the employer.
Beltramo testified that she participated in authoring
the fake newsletter because she wanted to air her griev-
ances about events that had taken place at the health
care center. She said she intended it to go no further
than her coworkers on her shift, and that she thought all
of them would feel better by identifying their problems
and laughing at them. She said that she hoped that the
people she showed the newsletter to would recognize
the problems, and that would improve morale. McKay
agreed in her testimony that the fake newsletter, of
which she was the coauthor, was written because of feel-
ings of frustration, and that it was not a serious attempt
to get grievance adjusted. Considering this testimony,
which I find credible, I further fmd that the fake news-
letter was but a first step in a communication process
that dealt with employee dissatisfaction with certain
terms and conditions of their employment. It was no dif-
ferent, in that context, than an oral statement, and it
should be treated no differently. It was a concerted ac-
tivity; whether it would have ever led to action by these
or other employees concerning the terms and conditions
of employment involved, we will never know, because
Respondent nipped any future action in the bud by dis-
charging Beltramo. That, it can hardly be disputed,
rather effectively made the point of what would happen
to dissidents who criticized the hospital's policy or its
administration.
I give no weight to statements allegedly made by Bel-
tramo to Mahon on 5 January 1984, the day Mahon sus-
pended her, or to the appeals board, when Beltramo ap-
peared before that body in an effort to win reinstatement
to her job. The conditions under which Beltramo spoke
on those occasions were highly coercive; in the first in-
stance an explanation for the newsletter was demanded
of her after she was called in on her day off by the hos-
pital's director of nursing and its second ranking adminis-
trative officer. Beltramo had to have realized that she
was in serious trouble, as indeed she was since the cost
of the incident turned out to be her job, and it was natu-
ral for her to attempt to minimize the significance of the
incident. Similarly coercive was her appearance before
454 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the appeals board where her only chance to win rein-
statement was to appear contrite and, again, minimize the
significance of the newsletter. Thus, I fmd that her state-
ments on those occasions were coerced and unreliable.
The Respondent is not entitled to assert in its defense
statements that were coerced from its employee directly,
or as a result of a chain of events that it set in motion.
There is no question but that the quoted remarks at-
tributed in the fake newsletter to Jack Whitlow, Patrick
Lamberti, and "Judy" were not, in fact, said by those in-
dividuals. That fact alone, however, does not operate to
deprive the fake newsletter of the protection it would
otherwise have under the Act as protected concerted ac-
tivity. There is "nothing in the [newsletter] that rises to
the level of public disparagement necessary to deprive
otherwise protected activities of the protection of the
Act." Allied Aviation Service Co. of New Jersey, 248
NLRB 229, 231 (1980).
The newsletter was not intended for public distribu-
tion, nor, indeed, is there any evidence that it was seen
by any member of the public, at least not until the Re-
spondent turned the matter into a public dispute by ter-
minating Beltramo. In any event, the contents of the
letter do not disparage or vilify Respondent's manage-
ment officials, its businees, or its reputation. It is clear
that the author's purpose was to make the points that Re-
spondent's management did not devote sufficient time
and attention to the operation of the Oxford Health Care
Center; its employees were not selected to serve on hos-
pital committees; and, the in-house newsletter did not
give adequate coverage to events at the health care
center. There was nothing in the fake newsletter that can
reasonably be interpreted as denigrating the three indi-
viduals to whom quotes are attributed, or seeking to
bring reproach or discredit on them personally. I con-
chide that under the circumstances, the fake newsletter
was protected. It contained considerable literary license,
but not to the point of being egregious in nature, and it
was directly related to employee interests and working
conditions.
Accordingly, for the reasons stated, I find that the
fake newsletter authorized by Beltramo and McKay
about 31 December 1983 was protected concerted activi-
ty under Section 7 of the Act.
3. Respondent violated Section 8(a)(1) of the Act by
firing Bonnie Beltramo on 6 January 1984 because
of her protected concerted activity
Respondent acknowledges that Bonnie Beltramo was
fired on 6 January 1984 "for la]cts of disloyalty detri-
mental to the best interests of hospital,' based upon her
preparation and distribution of the newsletter . . . ." (R.
Br. p. 57). As her authorship, and for that matter, limited
distribution, of the fake newsletter were protected con-
certed activities under Section 7 of the Act, Respondent
violated Section 8(a)(1) by terminating Beltramo's em-
ployment on 6 January 1984 because of her involvement
with the fake newsletter.14
14 Although Rita Mahon, Respondent's director of nursing, testified
that it was her decision to fire Beltramo, I find that decision was effec-
tively mandated by Jack H. Whitlow, Respondent's executive director,
4. Respondent violated Section 8(a)(1) of the Act by
firing Bonnie Beltramo on 7 February 1984 because
she had participated in protected concerted activity
Respondent argues that its initial discharge of Bel-
tramo was nullified by action of the hospital's appeals
board, which changed the discharge of 6 January 1984 to
a 30-day suspension and reinstatement with a 90-day pro-
bationary period. Beltramo's second discharge, on 7 Feb-
ruary 1984, did not violate the Act, Respondent contin-
ues, because she was discharged for cause and not be-
cause of her protected concerted activity.
Beltramo's second discharge, which occurred on 7
February 1984, several days after she returned to work
following her 30-day suspension, was imposed by Jack
H. Whitlow, Respondent's executive director.
According to Executive Director Whitlow, while at
the Oxford Health Care Center on the evening of 7 Feb-
ruary 1984 to attend a meeting of the advisory board
(made up of community volunteers who serve as liason
between the center and the community), he learned that
Beltramo had asked one advisory board member, Robert
Ousnamer, for a statement attesting that she was doing a
good job in the community, and that she had misrepre-
sented to the advisory board chairman, Reverend David
Russell, that Mahon was going to attend the advisory
board's 7 February 1984 meeting to discuss Beltramo's
case, Whitlow also stated that he learned from another
advisory board member, Edward Bossardet, about two
abusive telephone calls that the latter said he had re-
ceived from someone identifying himself as a representa-
tive of the NLRB, apparently related to Beltramo's
case. 15 Whitlow said the board members were upset, and
that he was upset that they were being bothered regard-
ing something that the hospital had regular channels to
take care of. After conferring with Patrick Lamberti and
Rita Mahon, who were also present for the board meet-
ing, Whitlow said, it was decided "we" would have to
go ahead and terminate Beltramo. But, Whitlow testified,
his decision was based on Reverend Russell's statements
as "we" were not sure who made the telephone calls to
Bossardet.
who told Mahon that he was very unhappy with the newsletter, which
he feared would have adverse financial and public relations consequences
for the hospital, and then asked Mahon and Patrick Lambern, Respond-
ent's executive assistant, to investigate and take care of it. (Whitlow testi-
fied he left the decision as to what was to be done up to Patrick Lam-
berti, who was m charge of the health care centers ) In a conversation
with Mahon, after she had identified Beltramo as one of the authors of
the fake newsletter, Whitlow told Mahon that it was her decision, but
that she had to remember that whatever action she took had to be in the
best interest of the institution. Under the circumstances, Mahon was left
with little discretion, and it is hardly surprising that she took the drastic
action that she did.ii Whitlow said he was asked by Patrick Lamberti to attend the board
meeting on 7 February 1984 because of complaints by Bossardet and
Reverend Russell that they were bemg harassed by Bonnie Beltramo.
Before the advisory board meeting started, Whitlow called each of the
three board members mdividually mto an office m the Oxford Health
Care Center and questioned them concerning any contacts they had with
Bonnie Beltramo Patrick Lamberti testified he had asked Whitlow to
attend the board meeting after receiving a telephone call from Judy
Gardner, administrator of the Oxford Health Care Center, expressing her
concerns following a telephone conversation she had with Reverend Rus-
sell.
PONTIAC OSTEOPATHIC HOSPITAL

455
In any event Whitlow directed that Beltramo, who
was not on duty at the Oxford Health Care Center, be
summarily fired, without being given any opportunity to
present her side of the incidents.
Whitlow instructed Bach, who had been told to
remain at the Health Care Center and was Beltramo's su-
pervisor, to place a telephone call to Be'tram° and tell
her that she was fired and to come to Whitlow's office
the next morning and he would tell her why. The next
morning, according to Whitlow's testimony, he told Bel-
tramo that she had no business calling the advisory
board members and he would not stand for it. He told
her that if she had a problem she knew what the griev-
ance procedure was and could follow it, because she had
already used it once. Whitlow denied that his decision to
fire Beltramo was based on the newsletter.
The notice of dismissal, read to BeWaal.° by Patrick
Lamberti (but signed by Rita Mahon, who apparently
wrote it), gives as reasons for Beltramo's dismissal: "Dis-
orderly conduct during 30-day suspension. Fabrication of
untruth causing unrest to members of the Advisory
Board resulting in professional misconduct—acting in
less than the best interest of the institution."16
Mahon testified that she had been asked by Reverend
Russell, the advisory board chairman, to attend the
board meeting on 7 February 1984 for the purpose of
discussing what was happening in home health care hi
the community.
Bonnie Beltramo acknowledged in her testimony that
she had several contacts with members of the advisory
board after she was fired on 6 January 1984. On 8 Janu-
ary she called Reverend Russell and asked if there was
anything he could do to help her from his position as ad-
visory board chairman. On 9 January she called Robert
Ousnamer, who was a township official, to arrange for
his secretary to type a letter of reference written for her
by a social worker named Carolyn Wiegand. On 1 Feb-
ruary, she met with Ousnamer at his request to discuss
medical care matters. In the course of that meeting, ac-
cording to BeWarn°, there was brief discussion of her
termination, and he mentioned that Mahon was going to
talk to the board the next week about some problems at
the health care center. Beltramo testified that she spoke
to Reverend Russell by telephone on 6 February, and
asked him if she could attend the advisory board meeting
the next eVening, because she was concerned Mahon was
going to talk about her employment relationship with the
hospital. Russell said that advisory board meetings were
16 Patrick Lambert' testified it was Whitlow's decision to fire Bel-
tramo, but while he gave his feelings why that was necessary, he did not
state exact reasons, and he asked Mahon to draft the language. Larnberti
testified that he heard Whitlow say that Beltramo's actions were disloyal
to the institution; that she had caused concern among the advisory board
members by her false statements, and, it was not in the best interests of
the institution for an employee to act in that fashion. According to Lam-
bend, the disorderly conduct by Beltramo during her 30-day suspension
was the telephone calls to the advisory board members, the untruth was
the statement that Mahon was coming to the advisory board meeting to
discuss Beltramo's case; and, the professional misconduct was that she did
not follow protocol in dealing with her problems through the grievance
procedure. Lamberti testified that the unrest among board members was
shown by Reverend Russell's request that Jack H. Whitlow attend the
board meeting on 7 February 1984, because the members were not sure
of their responsibilities
not open to the public and to his knowledge Mahon was
not going to be there to discuss Beltramo's problem, but
that if she did, Beltramo would be given an opportunity
to address the advisory board.
Reverend David Russell and Robert Ousnamer, called
as witnesses by the General Counsel, gave testimony that
generally paralleled that of Beltramo concerning the
nature of her contacts with them in January and Febru-
ary 1984. Concerning her request for help in regaining
her job, Reverend Russell said that he told Beltramo that
the adivsory board was strictly advisory in its function,
and the best he could do was to refer her request to the
advisory board's employee staff committee, "which re-
viewed those kind of things." On the second occasion on
which he spoke to her, on the Monday night preceding
the regular board meeting, Reverend Russell said he told
her that the person she thought was going to be there to
discuss her was to be there for an entirely different
reason and had been on the advisory board's agenda for
several months. 17 Robert Ousnamer, a supervisor of Ad-
dison Township (in which Oxford Health Care Center is
located) and a member of the Oxford Health Care
Center advisory board, stated that although BeWarn°
asked him for a letter in support of her, to his knowledge
no one connected with the township prepared any let-
ters. Ousnamer stated that around 1 February 1984 he in-
vited Beltramo to his office to discuss the declining pa-
tient load at the Oxford Health Care Center, and that
Beltramo brought up her situation at the Center. Al-
though she was unhappy at the way she had been treat-
ed, she did not ask him to do anything. Ousnarner said
he told Judy Gardner of his conversations with Bonnie
Beltramo.
The normal remedy ordered by the Board in cases
where an employee has been discharged because he or
she engaged in protected concerted activity is reinstate-
ment, with backpay, and a cease-and-desist order pro-
scribing similar misconduct in the future (Sec. 10(c) of
the Act). But, the obligation to reinstate can be avoided
by showing that at some point after an unlawful dis-
charge, the employee engaged in misconduct for which
he would have been terminated in any event. Section
10(c) of the Act also provides that: "No order of the
Board shall require the reinstatement of any individual as
an employee who has been suspended or discharged, or
the payment to him of any back pay, if such individual
was suspended or discharged for cause."
In this case, however, I fmd from the evidence that
the reasons cited by Respondent for termination of
Bonnie Beltramo's employment by Jack H. Whitlow on 7
February 1984 were pretextual, and that Respondent was
motivated by unlawful considerations. It is clear that
17 According to Reverend Russell's testimony, at some point in the
meeting of 7 February 1984, with knowledge that Bebra= had been
fired for the second time, the advisory board met privately to resolve its
anxiety as to what its role was Their conclusion was that they had no
authority, and their only responsibility was in terms of community rela-
tions, with the objective of trying to keep the community from becoming
upset by events at the hospital, or having the employees' morale upset by
events that "got out of proportion." Reverend Russell also stated that the
advisory board was never told it could not discuss employment problems
with employees.
456 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Beltramo was not fired on 7 February 1984 for cause.
The reasons given by Respondent for the second firing
were no more than a pretext, intended to obscure the
real reason, which was that Respondent did not want to
retain Beltramo as an employee because of her protected
concerted activity for which it had unsuccessfully tried
to fire her on 6 January 1984.
Among the factors that I have considered in reaching
this conclusion are the proximity in time of the two dis-
charges, the summary nature of the second discharge,
and the fact that the activities for which Beltramo was
discharged on the second occasion were closely related
to and would not have occurred but for her first dis-
charge and the protected concerted activities which pre-
ceded it.
As already noted, Beltramo's first discharge was effec-
tively mandated by Jack H. Whitlow, Respondent's exec-
utive director, who was displeased by the fake newslet-
ter, and made it clear to his subordinates, Patrick Lam-
berti, and Rita Mahon, that he thought the activity was
not in the best interest of the hospital and required
strong action. It is hardly surprising, therefore, that
Mahon would not wish to appear weak or indecisive in
the eyes of her supervisor, Executive Director Whitlow,
and dealt as harshly as she could with Beltramo by dis-
charging her, despite the fact that there was absolutely
no evidence to support Whitlow's seeming concern about
adverse publicity attaching to the hospital because of the
fake newsletter. But, even the best laid plans sometimes
come unraveled, and in this case, Mahon was unable to
convince the hospital's appeals board to sustain anything
more than a 30-day suspension, followed by a probation-
ary period. Then, a mere 3 days after returning to work
following the 30-day suspension, Beltramo was again
fired, this time summarily on orders of Executive Direc-
tor Whitlow, personally.
Curiously, aside from not giving Beltramo a semblance
of rudimentary due process by allowing her an opportu-
nity to explain her actions, if she could, before taking
action against her, Whitlow apparently did not even take
the time to tell his subordinates his specific reasons for
firing her. Instead, it appears that he contended himself
with generalizations such as her actions were disloyal
and not in the best interests of the hospital, and caused
unrest among advisory board members, and then left it
up to his subordinates, Patrick Lamberti and Rita
Mahon, to prepare something in writing afterwards. The
summary nature of Beltramo's second discharge, and its
proximity in time to her return to work after Respond-
ent's unsuccessful first attempt to discharge her, are clear
indicators that the real reason for the second discharge
was the protected concerted activity that brought about
the first discharge.
The activities for which Beltramo was discharged for
the second time occurred as an aftermath of her illegal
first discharge. Having been fired for her role in prepar-
ing the fake newsletter, Beltramo sought letters of refer-
ence from community leaders to submit to the hospital's
appeals board. There is no question but that the two
members of the Oxford Health Care Center advisory
board whom she contacted were leaders in her commu-
nity. One, Reverend David Russell was the pastor of a
local church; the other, Robert Ousnamer, was a supervi-
sor of Addison Township, apparently an elected local
government official. That those two individuals hap-
pened to be volunteer members, the Oxford Health Care
Center Advisory Board merely reaffirms their stature as
community leaders. BeWarn° had the same right as any
other member of the community to have access to com-
munity leaders and government officials. Much as Re-
spondent apparently would like to have it otherwise, Bel-
tramo forfeited none of her civil rights by undertaking
employment with Pontiac Osteopathic Hospital.
But, regardless that Beltramo may have had every
legal right to speak to whom she chose, the fact that she
chose to speak to Reverend Russell and Robert Ous-
namer was upsetting to Executive Director Whitlow,
who testified that he was upset that Beltramo would
bother advisory board members regarding something
that the hospital had procedures to handle. The morning
after ordering the discharge a Behim°, Whitlow told
her that she had no business calling the advisory board
members and he would not stand for it. And, clearly, he
did not stand for it, as he put it. He ordered that Bel-
tramo be discharged, which was the most severe penalty
he could impose on her. Just as clearly, the second dis-
charge was in retaliation for Beltramo's successful efforts
to win reinstatement after being discharged on 6 January
1984 for her protected concerted activities, and reflected
Respondent's determination to accomplish the second
time what it had failed to accomplish the first time.
Of course, even though Beltramo may have had a
legal right to contact the advisory board members, the
manner in which she did so, or the substance of what she
said, might conceivably have been so egregious as to
amount to misconduct for which the Respondent could
have discharged her for cause. Such, however, was not
the case. There was nothing improper, offensive, ob-
scene, , threatening, or degrading about Beltramo's con-
tact with the two advisory board members. Respondent's
attempt to characterize it otherwise in its written termi-
nation notice lacks any factual basis and is unpersuasive.
Respondent, in the written termination notice, charged
Beltramo with disorderly conduct, professional miscon-
duct resulting from fabrication of an untruth that caused
unrest among advisory board members, and with acting
in less than the best interest of the hospital. Executive
Director Whitlow characterized her actions as disloyal.
These charges are gross exaggerations, completely lack-
ing any factual basis.
At the time Beltramo first contacted Reverend Russell
and Robert Ousnamer, she had been fired from her job.
She was no longer an employee of Respondent. Under
those circumstances, one must wonder just what duty of
loyalty she owed to Respondent, or how her efforts to
assemble all available favorable evidence to present in
her behalf to the appeals board constituted disloyalty.
She did not denigrate the quality of medical care offered
by Respondent or the professional qualifications and
dedication of its employees. She simply asked for letters
of personal reference. That does not amount to disloyal-
ty.
PONTIAC OSTEOPATHIC HOSPITAL 457
Be that as it may, her contact with the advisory board
members, under no reasonable definition of the term,
constituted "disorderly conduct." There was nothing dis-
orderly about her conduct at all. So far as this record re-
flects, she was at all times polite and respectful in her
contActs with the two advisory board members. The sug-
gestion, advanced by Patrick Lamberti, that her mere
contact with the board members, standing alone, was dis-
orderly conduct is preposterous.
Equally baseless is the charge that she was guilty of
professional misconduct by fabricating an untruth that
caused unrest among the advisory board members. The
untruth, according to Patrick Lamberti, was Beltramo's
statement to Reverend Russell that Mahon was coming
to the board meeting to discuss Beltramo's case. But,
even assuming that the statement was untrue, there is
nothing in the record to indicate that it was other than a
good-faith mistake on Beltramo's part. There is no evi-
dence whatsoever that Beltramo knowingly misstated the
purpose of Mahon's visit. In any event, she did not mis-
lead or upset Reverend Russell by the statement, as he
was aware of the actual purpose of Mahon's visit, which
had been scheduled for several months, and corrected
Beltramo's misinformation. Finally, there is a complete
break in the chain of logic to equate Beltramo's state-
ment with professional misconduct. Beltramo is a profes-
sional registered nurse; this entire incident had absolutely
nothing to do with the manner in which she performed
her duties as a nursing professional. As a registered
nurse, Beltramo is licensed by the State, and professional
misconduct would subject her to possible disciplinary
action, including possible revocation of her license.
Whatever else this incident may have amounted to, it did
not reflect on her professional qualifications or conduct.
Professional misconduct is a grave charge, and in this
case, a completely baseless and intemperate one.
The charge of acting in a manner less than in the best
interest of the institution is wordy, but lacking in sub-
stance. The best interests of any institution are very sub-
jective, and depend mostly on who is interpreting them.
In the instant case, Respondent has produced no evi-
dence that Beltramo did anything more than take reason-
able steps to defend herself against an adverse personnel
action brought by her employer. It has not even proven
its allegation that she bypassed the so-called grievance
procedure because community service and professional
reputation were clearly relevant matters that Beltramo
could present to the appeals board in her defense. I find
that the ambiguous charge of failing to act in the best in-
terest of the hospital is unsubstantiated.
I find that the Respondent violated Section 8(a)(1) of
the Act by discharging Bonnie Beltramo on 7 February
1984. The General Counsel has proven by a preponder-
ance of the evidence that the Respondent was motivated
in discharging her by her protected activities on 31 De-
cember 1983, for which it discharged her on 6 January
1984. The discharge on 7 February 1984 was in retalia-
tion for Beltramo's successful appeal to Respondent's ap-
peals board, which reduced the discharge to a 30-day
suspension and a period of probation. The discharge of
Bonnie Beltramo on 7 February 1984 interfered with, re-
strained, and coerced her in the exercise of rights guar-
anteed by Section 7 of the Act.
I do not find, however, that the General Counsel has
proved, by a preponderance of the evidence, that the Re-
spondent was motivated in discharging Bonnie Beltramo
on 7 February 1984 by animosity as the result of her
filing charges with the National Labor Relations Board,
in violation of Section 8(a)(4) of the Act. Respondent's
witnesses testified that they did not believe that the al-
leged harassing telephone calls made to Edward Bossar-
det were made by an NLRB agent, and the General
Counsel does not contend that they were. I find the evi-
dence insufficient to establish that Executive Director
Whitlow discharged Beltranao because he thought that
an NLRB investigation was in progress and Beltramo
had started it.
B. Evelyn Bach
1. Evelyn Bach was a statutory supervisor until she
was demoted on 9 February 1984
Until she was demoted to staff nurse on 9 February
1984, Evelyn Bach was clinical nurse coordinator at the
Oxford Health Care Center, a position that she had held
since the center opened to the public in June 1980. She
exercised many of the criteria of Section 2(11) of the
Act, which defines a supervisor, including the authority
to hire, assign, evaluate, and discipline staff nurses and
clinical technicians. The evidence establishes that she
had the authority to use independent judgment in per-
forming supervisory functions in the interest of manage-
ment. Accordingly, I find that Bach was a supervisor, as
defined by Section 2(11) of the Act, and that she was in
fact on a regular basis in charge of staff nurses and clini-
cal technicians at the Oxford Health Care Center. Hydro
Conduit Corp., supra; NLRB v. Security Guard Service,
Inc., supra.
2. Bach's demotion on 9 February 1984 and
subsequent discharge on 23 February 1984 violated
Section 8(a)(1)
Bach was demoted to staff nurse on 9 February 1984
by Rita Mahon, Respondent's director of nursing. Ac-
cording to Mahon, she told Bach that Bach would be
acting as a staff nurse, but no changes would be made in
her personnel file, and she would receive the same
hourly wage. Mahon testified that she also told Bach she
was on 30-day notice, that Judy Cunard would be the di-
rector of nursing services at Oxford Health Care Center
and would evaluate the situation, and that Bach's posi-
tion was in question.
On 23 February 1984, Mahon discharged Bach.
Following her, demotion and dismissal, Bach filed a
grievance with the hospital's appeals board, which heard
her case on 2 March 1984. The appeals board voted to
reinstate Bach to her position as clinical nurse coordina-
tor with backpay, and recommended a 90-day training
probationary period. Bach returned to work on 19
March 1984 at the main hospital to begin her 90-day
training program. But, 4 days later, on 22 March 1984,
458 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Mahon again discharged Bach. A second appeal by Bach
to the appeals board was unsuccessful.
The General Counsel contends that Bach was dis-
charged on 23 February 1984, after she had become a
statutory employee, for engaging in protected concerted
activity on behalf of Bonnie Beltramo, and, therefore,
her discharge violated the Act. In the alternative, the
General Counsel asserts that the discharge of Bach on 23
February 1984 violated the Act, even if it is found that
the decision was based on Bach's activities as a supervi-
sor. The General Counsel further argues that Bach's 22
March 1984 discharge also violated the Act, because it
was in retaliation for an unfair labor practice charge that
she had filed with the NLRB on 29 February 1984, and
because "it was merely a furtherance of its [Respond-
ent's] original unlawful discharge decision."
The Respondent answers that Bach was discharged for
good cause on 23 February 1984, within the meaning of
Section 10(c) of the Act. Respondent argues that the evi-
dence shows that Bach's 23 February 1984 discharge had
nothing to do with the fake newsletter in which Bel-
traino was involved, or with Bach's reaction to the
newsletter and subsequent disciplinary events. Respond-
ent contends that Bach would have been discharged in
any event on 23 February 1984, based on information re-
ceived by Mahon between October 1983 and the date of
discharge, with particular emphasis on information re-
ceived during February 1984. Finally, Respondent states
that Bach was discharged again on 22 March 1984 be-
cause of her failure to cooperate with the retraining pro-
gram mandated by the appeals board.
Bach testified that Rita Mahon showed her a copy of
the fake newsletter in question on 5 January 1984, and
she told Mahon that she recognized the handwriting as
that of Bonnie Beltramo. Bach said she was present that
day when Mahon and Patrick Lamberti questioned
Bonnie Beltramo, and that she was present the next day
in Mahon's office at the main hospital, when Mahon told
Bonnie Beltramo that she was terminated. Bach said she
told Mahon that she did not think the incident warranted
discipline, and that Mahon expressed concern that Bach
would not support the administrative decision, and said
she was to support all administrative decisions, no matter
what they were. She was also told by Jack H. Whitlow,
Respondent's executive director, that she could not
openly disagree with administrative decisions. Bach said
she replied that while she disagreed with the decision,
she had not done so openly.
Subsequently, according to Bach, she wrote a letter
stating her disagreement with the decision to fire Bel-
tramo, which she gave to Beltramo to give to the ap-
peals board. Bach testified that she was told by Robert
Rood, the employee advocate who represented employ-
ees before the appeals board, that she could not appear
before the appeals board in person. On the morning of
the hearing, Mahon told Bach she could attend if she
really wanted to, but Bach declined, because, according
to her testimony, the hearing had already started, and
she could not get in touch with Robert Rood.
Bach stated that she was present in her office on 7
February 1984, when Mahon had a conversation with
Bonnie Beltramo 2 days after the latter returned to work.
After Bonnie Beltramo left, Mahon. criticized Beltramo's
bad breath and lack of a clean uniform, and stated that
she was upset by something Bonnie Beltramo had said at
the appeals board hearing. In the course of her conversa-
tion with Mahon that afternoon, Bach related that she
had been told by Bonnie Beltramo that Mahon was
going to discuss staff problems with the advisory board
that evening. Bach also told Mahon that Bonnie Bel-
tramo had learned this from an advisory board member.
Mahon said she was going to get to the bottom of the
matter, and a short time later left to meet with Executive
Director Jack H. Whitlow.
A few minutes later, according to Bach, she was sum-
moned to Judy Gardner's office, where she found Jack
Whitlow, Patrick Lamberti, Gardner, and Mahon wait-
ing. Executive Director Whitlow, according to Bach,
yelled at her, and demanded to know what she knew
about Bonnie Beltramo's contacts with advisory board
members. Executive Director Whitlow called in and
spoke to three advisory board members (Russell, Ous-
namer, and Bossardet), and, after they had left, said that
Beltramo was through, to fire her. When Bach asked
who was to tell Beltramo, Executive Director Whitlow
directed Bach to do it, stating that Beltramo was to be
told to come to his office the next morning and he
would tell her why he had fired her. Bach stated that she
did as 'directed by Executive Director Whitlow.
Bach testified that 2 days later, on 9 February 1984,
Mahon came to the Oxford Health Care Center, accom-
panied by Judy Cunard, another nurse employed by Re-
spondent. Bach testified that she was told by Mahon that
she could no longer be clinical nurse coordinator and
would be a staff nurse, because she had not supported
Mahon in the Beltramo situation. According to Bach, up
to that point she had not discussed with other Oxford
Health Care Center employees how she felt about Beltra-
mo's discharge. Mahon told Bach that Judy Cunard
would be the nurse coordinator at Oxford, and they
would meet again in 30 days to decide whether Bach
would get her job back.
Bach testified that when she met again with Mahon
and Cunard on 23 February 1984, Mahon said she could
not tolerate Bach's failure to support administrative deci-
sions, and that she had an enormous amount of evidence,
specifically mentioning timecards. Bach requested a rep-
resentative, and Robert Rood, Respondent's employee
advocate, was called in. Rood asked whether it was a
counseling or termination session, and when Mahon said,
termination, advised Bach to say nothing further. Bach
did refuse Mahon's offer to allow her to resign. Bach's
notice of dismissal states she was dismissed on 23 Febru-
ary 1984 for unsatisfactory work performance. Curiously,
a termination of service record 'prepared on 23 March
1984, effective 23 February 1984, signed by Rita Mahon,
listed unsatisfactory performance as the reason for dis-
charge, rated Bach's work habits and character in a
range from excellent to fair, and recommended her for
reemployment, with the qualifying notation, "only after a
review by myself."
Bach stated that she reported to the main hospital on
19 March 1984, to begin the 90-day training program
PONTIAC OSTEOPATHIC HOSPITAL 459
recommended by the appeals board. She remained in the
program, she said, until 22 March 1984, and performed
all the tasks assigned to her during that time. On 22
March 1984, Mahon asked her to sign a committment
that she would - complete the program; Bach refused,
unless she was guaranteed a job afterwards, a guarantee
that Mahon refused to give. Mahon then told Bach to go
home and wait for a telephone call. That afternoon,
Mahon called Bach and informed her that she was termi-
nated.
Bach acknowledged that she considered Bonnie Bel-
tramo to be her friend. She also stated that she did not
support the administrative decision to discharge Bel-
tramo, and that she told Beltramo that in person and on
the telephone. Bach said she did not refuse to terminate
Beltramo on 7 February 1984.
Copies of Bach's 1981, 1982, and 1983 employee eval-
uations were introduced into evidence as joint exhibits.
She was evaluated on 11 June 1981 by Rita Mahon, who
rated her as "exceeds responsibility" in 8 of 11 catego-
ries, and "meets responsibility" in the remaining 3 cate-
gories. Mahon characterized Bach as an "asset," and
praised her "sincere honest approach," which Mahon
found to be refreshing. Mahon also stated that Bach is
consistent and fair, and is respected by "her personnel."
On 23 June 1982, on a different type of evaluation
form, Bach was given an excellent rating by her supervi-
sor, John Cruikshank (then the administrator of the
Oxford Health Care Center). By separate letter, dated 25
June 1982, Mahon concurred in the excellent rating
given by John Cruikshank, and commented on Bach's
high professional standards, accountability, loyalty, and
cooperativeness.
On 10 June 1983, using yet another type of rating
form, John Cruikshank rated Bach as "very effective,"
the second highest category that the form describes as
performance at a very high level with a high degree of
proficiency.
In a written summary (Jt. Exh. 12) of her meeting
with Bach on 7 February 1984, Mahon noted that Bach
had disagreed that Bonnie Beltramo's breath was offen-
sive that day, and that her uniform was unkempt. Mahon
noted that she told Bach "this was just an additional
issue that demonstrated the discrepancy in our nursing
management philosophies." Mahon further noted that "I
discussed her [Bach's] participation in the 'lunch' (a
lunch held to welcome Bonnie Beltramo back from her
30-day suspension), and I was concerned of her lack of
support for Administration. I reinforced the premise that
we could disagree on whatever, but when we are in
front of the staff we need to be a united front." Accord-
ing to Mahon's summary, "Evelyn informed me that she
supported her staff and depended on these people, and
she saw no need to support me."
In her testimony during the trial of this case, Mahon
stated that after talking to Bonnie Beltramo about the
fake newsletter on 5 January 1984, she told Evelyn Bach
that she was considering a 30-day suspension or termina-
tion. Bach replied that a 30-day suspension would not
change anything or make any difference.
Mahon testified that she met at the Oxford Health
Care Center with Bonnie Beltramo and Evelyn Bach on
7 February 1984, 2 days after Beltramo had returned to
work following her 30-day suspension. Mahon said she
observed that Beltramo had bad breath, and her uniform
was dirty and unkempt. She asked Bach why she would
allow a nurse to be on duty looking like that, but Bach
said she had not seen Beltramo in that fashion.
After the advisory board meeting, Mahon testified she
had conversation with several members of the Oxford
staff (a physician, two nurses, and two clinical techni-
cians), who were on duty at the time. The employees
complained about working conditions at the Oxford
Health Care Center, which they described as deplorable,
noting that there was unprofessional conduct and behav-
ior and ridicule of patients. Shelley Austin, one of the
nurses, stated to Mahon that they had complained to
Bach about conditions several times, but she refused to
do anything. Mahon described the conversation about
pranks and working conditions as "minimal." She said
the employees felt helpless because their supervisor
would not do anything, and they were glad somebody
was finally doing something that evening (presumbly re-
ferring to firing Beltramo for the second time).
According to Mahon's testimony, on 8 February 1984,
she made the decision to demote Bach and send Judy
Cunard to the Oxford Health Care Center to be director
of nursing services, because of what she had learned
about the depressed state of nursing personnel on the
night of 7 February. Mahon stated that she also had all
the knowledge that she had gained from Bonnie Beltra-
mo's first appeals board hearing, and that was a factor in
her decision to send Cunard to the Oxford Health Care
Center. Mahon Stated she recalled conversations with
Bach in which the latter expressed a wish to be a witness
for Bonnie Beltramo at the appeals board hearing.
Mahon stated that she refused to say yes or no, but told
Bach that she was an adult and if she wanted to be a wit-
ness she would have to contact Bob Rood. Mahon said
she did not recall that she had any contact with Rood
about whether Bach could be a witness.
Mahon testified that on 14 or 15 February 1984, Judy
Gardner gave her a lengthy list of events that had taken
place at the Oxford Health Care Center while Bach was
supervisor. Judy Gardner was concerned about the
events, and also gave Mahon a list of pranks and jokes
that had taken place at the Oxford Health Care Center.
Judy Gardner told Mahon that she was relieved that
Judy Cunard had taken over.
On 13 February 1984, Mahon stated she met with
Linda Fitzpatrick, a former nurse at the Oxford Health
Care Center. Fitzpatrick related that she had made nu-
merous complaints to Evelyn Bach about poor working
conditions and her personal problems with Bonnie Bel-
tramo. According to Mahon, Linda Fitzpatrick stated
that Bach refused to do anything because Bonnie Bel-
tramo was her friend, and Linda Fitzpatrick felt she had
no recourse but to resign. Fitzpatrick showed Mahon an
"End of the Nightmare Party" poster, which had been
posted at the Oxford Health Care Center when she re-
signed and which she believed referred to her. Fitzpa-
trick also complained about a questionable evaluation she
460 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
had received from Bach, and an unfavorable reference
that Bach sent to a prospective employer.
Another person who came forward to complain to
Mahon was Nancy Miller, the Oxford town clerk, who
accused the night-shift nurses at the Oxford Health Care
Center of sexual misconduct and leaving the center while
on duty. Miller, however, apparently believed that her
husband (a town police officer) was involved in a rela-
tionship with one of the nurses, a circumstance that
Mahon said caused her to believe that Miller might be
less than objective.
Mahon testified that on 17 February 1984 she received
a letter written to the appeals board concerning the Bel-
tramo case, signed by a number of Oxford Health Care
Center employees who did want their names disclosed to
Bach. According to the letter, the employees feared re-
taliation. The letter stated that the employees objected to
reinstatement of Bonnie Beltramo, because over a period
of years she had played numerous unfunny, unkind, cal-
lous practical jokes on certain individuals. Further, the
employees stated Bonnie Beltramo had harassed certain
employees, both on and off the job, to the point they
sought employment elsewhere. The letter also claimed
that her professionalism on the job was somewhat jaded,
and that there were times when she was inattentive to
patients, preferring instead to stay in the clean utility
room joking and gossiping with other nursing personnel
and center employees.
Mahon testified that she considered the letter and the
charges that the employees made in it as reasons to dis-
charge Bach. Mahon stated that she presented the letter
to the appeals board (which denied Bonnie Beltramo's
second discharge appeal), with the names covered over.
Mahon said that she did not learn anything new in the
appeals board hearing concerning Bach.
Mahon testified on the morning of 23 February that
she met with Judy Cunard, with whom she discussed
electrical wiring repairs Bach's husband allegedly made
to an EKG and another machine at the Oxford Health
Care Center. Mahon testified that she felt the repairs
were inappropriate. Cunard also brought timecards that
she felt had been improperly filled out and that she be-
lieved showed favoritism by Bach towards some employ-
ees. Cunard told Mahon that the staff seemed happier,
and there seemed to be an increase in the number of pa-
tients.
According to Mahon, by that time she had already
made a rather firm decision to discharge Bach, and the
information provided by Judy Cunard just confirmed her
conviction," Mahon testified that she told Bach that
afternoon that she was terminated, mentioning that as a
supervisor Bach had allowed the mistreatment of fellow
professionals, and citing other factors, including the im-
proper timecards, possible product liability because of
18 Elsewhere in her direct examination, Mahon said that in dividing up
the weight she gave to various factors in reaching her decision to dis-
charge Bach, she gave 30=35 percent to employee concerns and docu-
mentation; one-third to "product liability, and equipment and standards
and professionalism, proficience [sic] and so forth"; and, one-third to
"time cards and documentation and those type of things, being hospital
policies and procedures."
the improper wiring, failure to provide a continuing edu-
cation program, and her lack of responsibility.
Mahon stated that she told Bach that there was noth-
ing personal, that she was just doing her job. Mahon
denied that anything said by Bach at the time of Bonnie
Beltramo's first discharge was a factor in Bach's dis-
charge. Mahon stated that Bach never expressed any re-
luctance to discipline Bonnie Beltramo, and never re-
fused to carry out any disciplinary action against Bonnie
Beltramo. According to Mahon, Bach did not say any-
thing on the occasion of Bonnie Beltramo's second dis-
charge, so that was not a factor in the decision to dis-
charge Bach.
According to Mahon, she felt that Bach was uncoop-
erative in the 90-day training program required by the
appeals board. Bach stated at the beginning of the pro-
gram, on 19 March 1984, that she would not have agreed
to the retraining program if she had known she would be
on probationary status. Mahon testified that she told
Bach that she could not promise her the job of clinical
nurse coordinator at the Oxford Health Care Center, that
being a determination that would be made at the end of
the training program. On 22 March 1984, after Bach re-
fused to sign a written committment that she would
follow through with the training program to the end,
Mahon suspended her and told her to go home. Later
that day, Mahon spoke to Bach by telephone and in-
formed her that she was terminated.' 9
Although supervisors are generally excluded from the
Act's coverage, there are a few circumstances in which
the discharge of a supervisor may violate Section 8(a)(1)
of the Act. Parker-Robb Chevrolet, 262 NLRB 402 (1982).
I find this case to be one such circumstance.
The Board has held that it is the employees, and not
the supervisors, who are protected, and that the dis-
charge of a supervisor violates the Act only where it
interferes with the exercise of employees' Section 7
rights. As stated by the Board in Parker-Robb Chevrolet,
supra at 402-403:
Thus, an employer may not discharge a supervisor
for giving testimony adverse to an employer's inter-
est either at an NLRB proceeding or during the
processing of an employee's grievance under the
collective-bargaining agreement. Similarly, an em-
ployer may not discharge a supervisor for refusing
to commit unfair labor practices, or because the su-
pervisor fails to prevent unionization. In all these
situations, however, the protection afforded supervi-
sors stems not from any statutory protection inuring
to them, but rather from the need to vindicate the
employees' exercise of their Section 7 rights.
In the same case, the Board also stated (262 NLRB at
404):
However, the justification for finding a violation
and reinstating a supervisor who would otherwise
be excluded from coverage under the Act is
19 Mahon stated that she informed Executive Director Whitlow of her
decision to terminate Bach, and that he agreed, stating it was her decision
to make.
PONTIAC OSTEOPATHIC HOSPITAL 461
grounded upon the view that the discharge itself se-
verely impinged on the employees' Section 7 rights.
As noted above, the Board has found that, when a
supervisor is discharged for testifying at a Board
hearing or a contractual grievance proceeding, for
refusing to commit unfair labor practices, or for fail-
ing to prevent unionization, the impact of the dis-
charge itself on employees' Section 7 rights, cou-
pled with the need to ensure that even statutorily
excluded individuals may not be coerced into vio-
lating the law or discouraged from participating in
Board processes or grievance procedures, compels
that they be protected despite the general statutory
exclusion.
. . . .
In the final analysis, the instant case, and indeed
all supervisory discharge cases, may be resolved by
this analysis: The discharge of supervisors is unlaw-
ful when it interferes with the right of employees to
exercise their rights under Section 7 of the Act, as
when they give testimony adverse to their employ-
ers' interest or when they refuse to commit unfair
labor practices.
I reject the General Counsel's contention that as an
employee after her demotion on 7 February 1984 Evelyn
Bach's discharge violated the Act. She was discharged
for her activities while she was a supervisor, not for any-
thing that happened between 7 February 1984, when she
was demoted, and 23 February 1984, when she was dis-
charged. The legality of her discharge, therefore, de-
pends on what protection under the Act she was entitled
to as a supervisor.
I find that Respondent, acting through its director of
nursing, Rita Mahon, demoted, then discharged, Charg-
ing Party Evelyn Bach principally because she had re-
fused to support Respondent's efforts to discharge
Bonnie Beltramo in retaliation for the protected concert-
ed activity in which the latter had engaged and for her
vigorous efforts to present an effective defense to the
Respondent's appeals board following her first discharge.
In making this finding, I have considered the timing of
Evelyn Bach's demotion on 9 February 1984 and dis-
charge on 23 February 1984, testimony and other state-
ments by Evelyn Bach and Rita Mahon, and disparately
harsh treatment of Evelyn Bach,
The initial question, of course, is whether the dis-
charge (or demotion) of a supervisor for refusing to sup-
port his or her employer's actions amounting to an unfair
labor practice, as opposed to a refusal by the supervisor
to commit an unfair labor practice, may violate Section
8(a)(1) of the Act at al1. 20 I conclude that the distinction
between a supervisor refusing to support the commission
of an unfair labor practice by his or her employer, and
the supervisor refusing to commit the unfair labor prac-
tice at the employer's direction, is a distinction without
difference in legal effect.
The purpose of the Act is to encourage and promote
harmonious relations between employers and employees.
20 For purposes of the Act demotion may be as discriminatory an
action as discharge, and as much a violation of the Act.
To accomplish that goal, Section 8(a)(1) of the Act
makes it illegal for an employer to interfere with em-
ployees in the exercise of their rights guaranteed by Sec-
tion 7 of the Act. It would make little sense, and would
frustrate the purposes of the Act, to extend coverage of
the Act to protect a supervisor who refuses to commit
an unfair labor practice in violation of the Act, but not
to protect a supervisor who, by refusing to support the
employer's commission of unfair labor practices, in
effect, tells his employer not to violate the Act. The
impact on employees' Section 7 rights of the discharge of
a supervisor who refuses to commit an unfair labor prac-
tice cannot be distinguished for practical purposes from
the impact of the discharge of a supervisor for refusing
to support the commission of an unfair labor practice by
the employer. Opposition by its supervisors may cause an
employer to reconsider its contemplated action, and thus
preclude a violation of the Act. Protection of the right
of employees to exercise their rights under Section 7 is
enhanced when supervisors can freely, without fear of
demotion or discharge, voice opposition to unfair labor
practices.
As previously held, the Respondent committed an
unfair labor practice by discharging Bonnie Beltramo on
6 January 1984 because she had engaged in a protected
concerted activity (the preparation and distribution of
the fake newsletter). The Respondent committed a
second unfair labor practice on 7 February 1984, when it
discharged Bonnie Beltramo for the second time, for the
same reason. The reason advanced by Respondent for
discharging Bonnie Beltramo on the second occasion was
a pretext, intended to conceal its real motive, which was
to complete what it had unsuccessfully tried to do on 6
January 1984, when it discharged Bonnie Beltramo, only
to have its own appeals board change the discharge to a
30-day suspension and reinstatement.
There is ample evidence that Evelyn Bach, who was
Bonnie Beltramo's immediate supervisor, did not support
either discharge of Bonnie Behramo, and that her oppo-
sition was well known to both Respondent's executive
director, Jack H. Whitlow, and its director of nursing,
Rita Mahon, who made the decision to demote Bach on
8 February 1984, 1 day after Bonnie Beltramo was dis-
charged for the second time. Bach openly stated her op-
position to Mahon in January 1984, and sought Mahon's
permission to appear as a witness for Emilie Beltramo in
the latter's first appeals board hearing in January. Both
Executive Director Whitlow and Mahon admonished
Bach that it was her duty to support management's deci-
sion, and, although Mahon did not tell Bach she could
not be a witness for Bonnie Beltramo, Mahon's disap-
proval of the idea was clearly conveyed to Bach. As late
as the evening of 7 February 1984, a short time before
Executive Director Whitlow ordered Bach to contact
Bonnie Beltramo and tell her she was again discharged,
Rita Mahon again clearly communicated to Bach that
she was expected to support management's position with
regard to Bonnie 13eltramo.21
21 According to Mahon's written summary of the meeting, she talked
to Bach about her participation in a luncheon welcoming Bonnie Bel-
Continued
462 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The timing of the demotion of Bach on 9 February
1984, a decision that Mahon, by her own admission,
made on 8 February 1984, the day after the second dis-
charge of Bonnie Beltramo, coupled with the disapproval
by Executive Director Whitlow and Mahon of Bach's
support for Bonnie Beltramo, strongly suggests that the
demotion of Bach and the discharge of Bonnie Beltramo
were linked. The inference can be reasonably drawn
from this linkage that in demoting Bach on 9 February,
Respondent's agent, Rita Mahon, was motivated by
Bach's refusal to support the unfair labor practices that
Respondent committed against Bonnie Beltramo.
Reinforcing that inference are the circumstances of
Bach's termination some 2 weeks later, which point to
the conclusion that although Bach was only demoted on
9 February 1986 it was Mahon's intention even then to
discharge her. At the time she was informed of her de-
motion to staff nurse on 9 February 1984, Bach was told
by Mahon that her job was in jeopardy, but that the de-
cision would not be made until after a 30-day evaluation
to be conducted by Judy Cunard, who would be taking
over Bach's supervisory responsibilities at the Oxford
Health Care Center. Instead of waiting for the 30-day
evaluation to be completed, Mahon discharged Evelyn
Bach on 23 February 1984. Mahon had already made a
"rather firm" decision to discharge Bach by the time she
received Judy Canard's oral report on 23 February 1984.
It is clear that it was never Mahon's intention to do oth-
erwise.
I find that the reasons given by Mahon for discharging
Bach on 23 February 1984 are a mere pretext. The offi-
cially stated reason was unsatisfactory work perform-
ance; in ,elaborating on her reasons, however, Mahon
mentioned employee concerns, product liability, and
timecards. It is clear from the record, that the latter two
factors were brought by Judy Cunard to Mahon's atten-
tion after she had "rather firmly" decided to discharge
Bach, and thus were not a substantial factor in either
Bach's demotion or discharge. Further, the first factor
was disparately used as a basis for action against Bach.
There is ample evidence in the record to suggest that
the staff at the Oxford Health Care Center was divided
by factionalism, and that some members of the staff, in-
cluding Bonnie Beltramo, made a regular practice of
playing practical jokes on each other, and perhaps on
other staff members who did not want to be involved, as
well. The situation at the Oxford Health Care Center, in
fact, was somewhat reminiscent of the television series,
"MASH," except that arguably much of what went on
was neither humorous nor in good taste.
But, whatever took place at the Oxford Health Care
Center during the 2-year period after it opened, until the
discharge of Evelyn Bach, it is open to considerable
question just how much Rita Mahon knew about what
had taken place. In fact, the evidence suggests that she
knew relatively little, that what she did know was one-
sided, and that she made no effort to conduct a thorough
tramo back to work following her 30-day suspension, and "reinforced the
premise" that Bach was expected to support management's position and
present a "united front" In the summary, Mahon noted that she was con-
cerned about Bach's lack of support of the hospital administration.
or impartial investigation before she took action against
Evelyn Bach, ostensibly because she had allowed the
staff she supervised to engage in inappropriate behavior.
One argument is that had Respondent's management
known what was going on at the Oxford Health Care
Center sooner, it would have acted sooner to put a stop
to it. The fallacy of that line of argument is that the
record unequivocally shows that Respondent's manage-
ment knew all along what was going on, and condoned
it. There is ample evidence that Jack Cruikshank, the ad-
ministrator of the Oxford Health Care Center until Octo-
ber 1983, who was Evelyn Bach's immediate supervisor,
was well aware of the situation at the Center, but, for his
own reasons, chose to do nothing about it. Further, it is
equally clear that the practical jokers were not limited to
the nursing staff, but also included physicians, among
them, it appears, the supervising physician. Again it ap-
pears that nothing was done to put a stop to objection-
able behavior, in this instance through the medical staff
channel.
Clearly, the official who must bear ultimate responsi-
bility for allowing mistreatment of employees and objec-
tionable conduct by some employees at the Oxford
Health Care Center is the administrator of the center,
Jack Cruikshank, who had responsibility for its day-to-
day management. 22 There is no indication in the record,
however, that any type of disciplinary action was con-
templated or taken against him. The treatment of Evelyn
Bach was clearly disparate, compared with that of Jack
Cruikshank, who was not disciplined at all. I fmd from
the evidence that Evelyn Bach was made a scapegoat for
poor management of the Oxford Health Care Center.
Under the circumstances, I fmd Mahon's claim -that
she demoted then discharged Evelyn Bach because the
latter had allowed the mistreatment of professionals to be
incredible. Had Mahon, or anyone else in Respondent's
management, wanted to impose discipline for such a
reason, the logical and appropriate inquiry for the pur-
pose of fixing responsibility would have included Patrick
Lamberti, and Jack Cruikshank, not just Evelyn Bach,
who was only the first line supervisor, and at that, not
the pupervisor of all involved. Discipline of Evelyn
Bach, alone, would have been appropriate only if it
could be fairly said that neither Jack Cruikshank nor Pat-
rick Lamberti bore any responsibility for poor manage-
ment at the Center. That cannot be said to have been the
situation here. Moreover, there was, of course, no such
inquiry in this case; in fact, Mahon apparently did not
even' contact Jack Cruikshank, whom she knew tod be
Evelyn Bach's immediate supervisor, to find out from
him what he knew about what had taken place at the
Center. Obviously, Mahon was not willing, nor probably
even in a position to challenge Patrick Lamberti.
The allegation of mistreatment of professionals at the
Oxford Health Care Center was nothing more than a
pretext, a convenient excuse for Mahon to demote rather
than discharge Bach, because the latter had not support-
ed the Respondent's efforts to get rid of Bonnie Bel-
,
2 2 Arguably, Patrick Lamberd must also bear a measure of responsibil-
ity because he oversaw operation of both of Respondent's health care
centers.
PONTIAC OSTEOPATHIC HOSPITAL 463
tramo. The other categories of reasons cited by Mahon
for discharging Bach are trivial, or arose after the deci-
sion to discharge had already been made. They, too, are
clearly pretextual.
Finally, Bach's second discharge was not for good
cause. It provides no legal impediment to Bach's rein-
statement. Bach would not have found herself to be a
probationary employee in a retraining program had Re-
spondent not unlawfully discharged her in the first place.
Uncooperative though she may have been in carrying
out the training program, her conduct was not egregious,
and Respondent cannot rely on it as grounds to escape
the consequences of its unfair labor practice.
C. Sharon McKay
Respondent did not cormnit an unfair labor practice by
suspending Sharon McKay for 5 days because she left
the Oxford Health Care Center building on 3 May 1984
without permission before her work shift had been com-
pleted; or, by counseling her on work performance on 14
May 1984.
I find that there is no link between Charging Party
Sharon McKay's protected concerted activities on 31
December 1983 (participation in preparation of the fake
newsletter) and the 5-day suspension that she received
from her employer on 7 May 1984. The suspension was
imposed for an incident that occurred on 3 May 1984. It
was remote in time to McKay's protected concerted ac-
tivities. The disciplinary action was imposed for good
cause, and was not so disparate as to support the infer-
ence that McKay was actually being punished for some-
thing else.
In arguing that Respondent suspended Sharon McKay
in retaliation for her protected concerted activities, the
General Counsel takes particular notice that McKay ad-
mitted her activities to Rita Mahon in January 1984, and
that Mahon said she would have disciplined McKay if
she had known earlier. The General Counsel contends
that the suspension imposed on McKay, because she left
the Oxford Health Care Center in a panic, without tell-
ing her supervisor, after receiving notice from her young
son's school that he was missing, was "unusually draco-
nian" compared with the punishment previously imposed
on other employees for similar infractions. And, the Gen-
eral Counsel says, McKay was told by Robert Rood, Re-
spondent's employee advocate, that her suspension was
obviously a set-up job. Finally, the General Counsel
argues that the counseling record that McKay received
on 14 May 1984 was disciplinary in nature and also in
retaliation for her protected concerted activities.
Respondent, for its part, contends that the suspension
was warranted and appropriate, and did not constitute
disparate treatment. There is no dispute that McKay left
her job without authorization on 3 May 1984, conduct
that Respondent states constitutes grounds for discharge
in the hospital's employee handbook. Instead, McKay re-
ceived only a 5-day suspension, a punishment that Re-
spondent denies was disparate or was imposed because of
her involvement with the fake newsletter. Finally, Re-
spondent argues that the counseling record given to
McKay on 14 May 1984 was not disciplinary in nature.
The facts surrounding the incident that led up to
McKay's 5-day suspension are not seriously in dispute.
Sharon McKay acknowledged that she was working the
day shift, from 7 a.m. to 3:30 p.m., on 3 May 1984, and
that she left the Oxford Health Care Center a few min-
utes after 3 p.m., without telling her supervisor, Judy
Cunard. Her actions, McKay testified, were prompted by
a telephone call that she received from the secretary at
her son's school, in which she learned that he and an-
other little boy were missing from the school. McKay
stated that she went to the nurses' station, picked up her
purse, but left wihtout her coat and paycheck, and, as
she was leaving, told one of the nurses, Shelley Austin,
to tell her husband, who had called by telephone, that
she was leaving for the school." McKay went on to tes-
tify that her son had been found by the time she arrived
at the school, and that later, about 5:30 p.m., after taking
her son home, she returned to the Oxford Health Care
Center, where she picked up her coat and paycheck. She
did not see or talk to Judy Cunard on this later occasion.
On 4 May 1984, a scheduled day off for McKay, she re-
ceived a telephone call from Judy Gardner who told her
she had been suspended and that she was to report to
Rita Mahon's office on 7 May 1984.
Sharon McKay said that she reported to Mahon's
office in the main hospital on 7 May 1984, as directed,
accompanied by Robert Rood, the Respondent's employ-
ee advocate. She explained the circumstances of her ab-
sence to Mahon. Mahon stated that the punishment
would be a 5-day suspension. Sharon McKay and Robert
Rood were unsuccessful in persuading Mahon to reduce
the suspension to 2 days.
Judy Cunard testified that she was in the Oxford
Health Care Center during the afternoon of 3 May 1984,
and that at approximately 3:05 p.m., she learned that
Sharon McKay had left the Center. She said that after
waiting until the next day without taking any action, to
give Sharon McKay a chance to call, she contacted Rita
Mahon and reported the incident. Although she wanted
to terminate Sharon McKay, she agreed with Rita
Mahon's decision that McKay would be suspended.
Cunard stated that she left on vacation later on 4 May
1984, and had no further involvement in the incident
until she returned, when she signed a written second rep-
rimand with a 5-day suspension. Cunard stated that she
had not seen the fake newsletter, or talked to Rita
Mahon about it, and she did not know of Sharon
McKay's involvement in preparing a document critical
of the hospital.
Judy Cunard stated that she counseled Sharon McKay
on 14 May 1984 concerning the latter's job responsibil-
ities, and made a written record of the counseling. She
denied that the counseling record was disciplinary in
nature. The counseling concerned two assignments that
Sharon McKay had either failed to complete or had per-
formed incorrectly, and a complaint by a child-patient's
23 McKay testified that she believed that a registered nurse, such as
Shelley Austin, was in charge in Judy Cunard's absence. McKay did not
claim, however, that she made any effort to locate Judy Cunard before
leaving the Center, or that she asked for or received permission from
Shelley Austin to leave.
464 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
mother. According to Cunard, one incident involved
McKay's failure on 3 May 1984 to complete an assign-
ment to put away medical supplies that had been deliv-
ered. Cunard said the stock was in boxes that were not
heavy; Cunard said she carried them from the laboratory
to the office herself. The second incident involved an im-
properly prepared blood sample that McKay had drawn
on 4 May 1984 and sent to the main hospital for analysis.
(The third incident, which also allegedly occurred on 4
May 1984, involved a complaint by a child-patient's
mother that McKay had seemed irritated when asked to
clarify a discrepancy between instructions given by the
physician and those given by McKay.) According to
Cunard, she wrote the counseling form as she spoke to
Sharon McKay.
Rita Mahon stated that she was contacted by Judy
Cunard on 3 May 1984 about Sharon McKay's absence,
and that she directed Cunard to document the incident.
(Judy Cunard prepared a written summary of the inci-
dent bearing the date May 3, 1984. Mahon said she re-
ceived it on 4 May 1986.) On the same day, Mahon
spoke to Shelley Austin about the incident, and asked
her to make a written report. (Shelley Austin's report is
dated May 7, 1984; it is date-stamped May 8, 1984).
Mahon stated that she received Shelley Austin's report
before imposing punishment on Sharon McKay and
relied heavily on it in deciding what punishment was ap-
propriate; 24 but as Sharon McKay already had a second
written reprimand with a 3-day suspension in her file, the
next step was a second written reprimand with a 5-day
suspension. According to Mahon, the latter was the least
amount of punishment she could give; the maximum was
termination. Mahon said that she chose the written repri-
mand with 5-day suspension after talking with Judy
Cunard and Marilyn Floyd, the associate director of
nursing (Mahon's assistant). According to Mahon, the
employee handbook requires employees to get permission
when leaving for personal reasons, and to punch out (on
the timeclock) when they leave. Sharon McKay did nei-
ther, and admitted she had not told anyone she was leav-
ing. Mahon stated that she told Sharon McKay a third
reprimand would result in her termination. Mahon
denied that the fake newsletter had anything to do with
the discipline that she gave to Sharon McKay.
There is testimony in the record of trial indicating that
no discipline, or discipline of lesser nature, was imposed
on other employees who left work without permission or
failed to report to work as scheduled. Factually, most
similar was a 1982 incident involving nurse Shelley
Austin, who left the Oxford Health Care Center without
permission before her shift ended because she thought
24 There is a conflict between Mahon's testimony and that of Judy
Cunard concernmg when the latter reported Sharon McKay's absence to
Mahon. Mahon testified it was on 3 May 1984; Judy Cunard said it was
the next day, 4 May 1984. There is a further conflict involved in Rita
Mahon's testimony that she received Shelley Austin's written report
before disciplining Sharon McKay on 7 May 1984. The report is dated 7
May 1984, but date-stamped 8 May 1984. I do not regard these conflicts
as matenal, considenng the tune that has elapsed since the incident. It is
clear that Mahon learned of the incident from Judy Cunard, and talked
to Shelley Austin before imposing punishment on Sharon McKay on 7
May 1984. Based on the evidence, I conclude that Judy Cunard first con-
tacted Rita Mahon on 3 May 1984, as Rita Mahon testified
her child was having a seizure. In that instance, Charg-
ing Party Evelyn Bach, who was Shelley Austin's super-
visor, imposed no discipline. In another incident, Renee
Hammond, an employee at the Oxford Health Care
Center, also supervised by Charging Party Evelyn Bach,
was docked pay for the time she was gone from work
without permission to attend a party. The third, and
most recent, incident involved Charlene Jaranko, a clini-
cal staff nurse at the Oxford Health Care Center, who
was not disciplined by Judy Cunard for failing to report
for work one day as scheduled. By way of explanation,
Charlene Jaranko stated that she had misunderstood the
schedule, and believed that she was not assigned to work
on the day in question.
Respondent's employee handbook provides, in the sec-
tion entitled, "Dismissal," that an employee may be dis-
missed for just cause for "Weaving work area without
permission. . . ."
It is, of course, understandable that Sharon McKay
would have been upset, perhaps even to the point of
panic, at the alarming news that her son was missing
from his school. On the other hand, however, her actions
at the time did not show that she was so panicked as to
be incapable of rational behavior. She, in fact, had the
presence of mind to go to the nurses' station, retrieve her
purse, and give nurse Shelley Austin a message to relay
to McKay's husband, who had called on the telephone.
It would have taken only seconds more for McKay to
have given Austin a description of what was wrong and
to ask her to relay a message to Judy Cunard. Further,
even giving McKay the benefit of the doubt, and attrib-
uting to stress her failure to take any steps at all at that
time to notify her supervisor of her need to leave, there
is no persuasive reason that explains away her failure to
at least attempt to contact her supervisor, Judy Cunard,
once the crisis had been resolved, to explain her behav-
ior. Indeed, it appears that she made no such attempt,
either later that day when she returned to the Oxford
Health Care Center to pick up her coat and paycheck, or
even the next day, by means of a simple telephone call.
Thus, while I fmd that there were obviously mitigating
circumstances, I further find that they were not so com-
pelling as to completely excuse Sharon McKay's behav-
ior.
Characteristic of what the record rather clearly points
out to be her style of management, Mahon imposed a
harsh punishment on McKay, apparently as an example
to deter others from similar conduct, without giving
much, if any, weight to any mitigating circumstances in
McKay's case. Indeed, it appears that Mahon had al-
ready made up her mind what she was going to do
before she ever gave McKay a chance to explain her
conduct. But, Mahon denied any link to the fake news-
letter, which is consistent with her statement to Sharon
McKay in January 1984 that she did not intend to disci-
pline her for being a coauthor of the newsletter.
But, while I find that the disciplinary action selected
by Mahon was harsh, under the circumstances, I do no
find that it was so harsh, as a matter of law, as to be
prima facie proof of discriminatory intent. The employee
handbook clearly lists leaving the work area without per-
PONTIAC OSTEOPATHIC HOSPITAL

465
mission as cause for dismissal, and under that provision,
Mahon could have imposed dismissal, an even harsher
punishment than the 5-day suspension that she did
impose. That Mahon may arguably be authoritarian, un-
sympathetic, and inflexible in her management philoso-
phy does not amount to a violation of the National
Labor Relations Act.
Missing from the record of trial is evidence of any
other factors that, considered with the harsh nature of
the punishment imposed on McKay, might link that pun-
ishment to the protected concerted activities in which
she had engaged some 4 months earlier.
While not so remote in time as to preclude the possi-
bility that the 5-day suspension imposed on 7 May 1984
was actually in retaliation for McKay's protected con-
certed activities on 31 December 1983, neither is the sus-
pension so proximate as to give rise, standing alone, to
that possibility. It is certainly inferrable that if the Re-
spondent was looking for a trumped up excuse to retali-
ate against McKay, it could have found one in less than
4 months. Under the particular circumstances of this
case, I find the timing of the 5-day suspension to be a
neutral factor, neither tending to prove nor disprove a
link to MclCay's protected concerted activities.
While I have already concluded that the 5-day suspen-
sion was harsh, although not as harsh a punishment as
might have been imposed, I do not find that it was dis-
parately harsh. The three incidents of record that might
be said to show disparate treatment, actually involved
different supervisors, each acting independently, so far as
it can be ascertained, according to their perceptions and
management philosophies. Any lack of uniformity in
how employees in similar circumstances were treated,
even assuming, for the moment, that the circumstances
were similar, can be attributed to the fact that different
supervisors, acting without guidance from written disci-
plinary standards, made the disciplinary decisions at dif-
ferent times. I detect no substantial evidence of any es-
tablished patterns of discipline from which Mahon devi-
ated in imposing the 5-day suspension on Sharon
McKay. Accordingly, I find the claim of disparate treat-
ment to be unsupported.
I do not agree that proof of the missing link between
the 5-day suspension and Sharon McKay's protected
concerted activities is supplied by the statements made
by Employee Advocate Robert Rood to Sharon McKay,
to the effect that her suspension was a set up. While,
Rood must be considered as an agent of management be-
cause of commingling of his managerial and employee
representation duties, there is no evidence that he was
part of an overt effort by management to rig the out-
come of appeals board proceedings, or that other manag-
ers confided to him their true intentions in imposing dis-
cipline in this or any other case. As will be discussed
more thoroughly later, the defect in the employee advo-
cate concept, as applied in Respondent's system, is more
subtle; the person holding the position of employee advo-
cate is primarly a manager and lacks true independence
as an advocate or representative of employees. I find no
evidence that Rita Mahon had confided to Rood her in-
tentions in punishing Sharon McKay, or that his alleged
statement that the suspension was a set-up was anything
more than speculation on his part, his opinion based on
the facts as he saw them As that speculation is not cor-
roborated by any other evidence, I give no weight to his
opinion.
Finally, I do not find that the counseling record given
to Sharon McKay on 14 May 1984 by Judy Cunard was
disciplinary in nature, or constituted an unfair labor prac-
tice. There is no evidence that a counseling record (or
session) is part of a disciplinary system maintained by
Respondent. Sharon McKay does not deny the events
that form the basis of the counseling record; she does
dispute how they should be interpreted, and she denies
that the criticism of her was fair. Judy Cunard, her su-
pervisor, appears to be of a different opinion. Wherever
the equities may lie, however, there is no evidence tying
Judy Cunard to the fake newsletter incident. The Gener-
al Counsel has failed to make even a prima facie showing
that Judy Cunard acted in this instance in retaliation for
Sharon McKay's protected concerted activities.
D. Unlawful Work Rules
Respondent committed unfair labor practices by main-
taining work rules that violate Section 8(aX1) of the Act.
There is no dispute that Respondent maintains the two
work rules in question in its Employee Handbook. As
they appear in the Employee Handbook, the two work
rules are:
CONFIDENTIAL INFORMATION
Hospital affairs, patient information, and employ-
ee problems are absolutely confidential and will not
be discussed. Violation of this prohibition may be
cause for immediate dismissal.
SOLICITATIONS
Outside agencies and charitable organizations are
not permitted to solicit employees without the ap-
proval of the Executive Director.
No individual is permitted to solicit funds for any
purpose on the Hospital premises without the ap-
proval of the Executive Director.
The solicitation rule is obviously overly broad in vio-
lation of Section 8(a)(1), because employees may reason-
ably construe it to prohibit them from engaging in per-
missible union solicitation. J. C. Penney Co., 266 NLRB
1223, 1224-122 (1983). As stated by the Board in J. C
Penney Co., supra, 266 NLRB at 1224; "It is well settled
that restrictions on union solicitation in nonworking
areas during nonworking time are presumptively in-
valid." In that case, the Board refused to dismiss the
complaint because any violations of the Act based on the
rule was de minimis, noting at 266 NLRB 1224 that:
"[The mere niaintenance of such a rule serves to inhibit
employees from engaging in otherwise protected organi-
zational activity, and, therefore, the absence of evidence
of enforcement of a rule does not preclude the finding of
a violation or the issuance of a remedial order."
Similarly overly broad, because it is indiscriminate in
its application, is Respondent's confidential information
466 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
rule. That rule bans, among other things, discussion of
hospital affairs and employee problems. As argued by the
General Counsel, that ban could reasonably be construed
by employees to preclude discussing information con-
cerning terms and conditions of employment, including
wages, which, could fall under the broad categories of
hospital affairs and employee problems. While Respond-
ent might have a substantial and legitimate interest in
limiting or prohibiting discussion of some aspects of its
affairs, or of its employees' personal problems, and cer-
tainly of patient information, it has offered no justifica-
tion for the broad policy stated in its confidential infor-
mation rule. In Waco, Inc., 273 NLRB 746, 748 (1984),
the Board held that a rule prohibiting employees from
discussing their wages violated Section 8(a)(1) of the
Act. In its decision in that case, the Board stated:
In the instant case, however, unlike IBM, supra,
the Respondent forbade its employees to discuss
their own wages among themselves. Further, it did
so without establishing a substantial and legitimate
business justification for its policy; indeed, the Re-
spondent offers no argument whatsoever that justifi-
cation exists, relying instead, as did the judge, on
the lack of any showing that any employee felt in-
hibited by the Respondent's rule.
In assessing the lawfulness of the Respondent's
rule, we are not concerned with the subjective
impact of the rule on particular employees. Instead,
we must determine whether the rule reasonably
tended to coerce employees in the exercise of their
Section 7 rights, and, if so, whether the employees'
Section 7 rights are outweighed by any legitimate
and substantial business justification for the rule.
There can be little question that the Respondent's
rule prohibiting employees from discussing their
wages constitutes a clear restraint on employees'
Section 7 right to engage in concerted activities for
mutual aid and protection concerning an undeniably
significant term of employment. Because the Re-
spondent has failed to establish any business justifi-
cation for this restraint, it follows that its rule is un-
lawful.
In its brief, Respondent indicates a willingness to
adopt alternative handbook provisions to resolve any
concern over the current provisions, and offers to stipu-
late to a decision or order requiring substitution of cer-
tain replacement language, which it has suggested for the
existing language. I decline to give an advisory opinion
on the lawfulness or adequacy of Respondent's proposed
revisions. Until there is a controversy concerning them,
there is no issue concerning them before me. I note in
passing, however, that it would appear to be reasonable
for the General Counsel to explore Respondent's offer,
with a view towards settlement of the existing issue.
E. Deferral
Deferral by the National Labor Relations Board to the
decisions of Respondent's appeals board is inappropriate.
The Respondent's appeals board system was developed
and implemented at the direction of Respondent's execu-
tive director, Jack H. Whitlow, who testified that it was
his idea. The rules for appeals board proceedings were
written by a committee composed of management repre-
sentatives and volunteers selected by management from
the Employee Council, an internal hospital advisory
body composed of elected employee representatives. Ex-
ecutive Director Whitlow, while acknowledging that he
might have reviewed the rules written by the committee,
stated that he did not recall making any changes, and
that he made it clear that the hospital would not over-
turn or reject decisions of the appeals board.
The categories of Respondent's employees granted
access to the appeals board had not, and still have not,
chosen an exclusive bargaining agent to represent them,
and there was no collective-bargaining agreement cover-
ing them in existence at the time Respondent implement-
ed the appeals board system, nor is there one now. The
employees never elected representatives to the employee
council for the purpose of negotiating a collective-bar-
gaining agreement with management, nor did they vote
to authorize the elected representatives to the employee
council to negotiate a method for settlement of griev-
ances.
Once management had approved the appeals board
rules drafted by the committee it had organized, manage-
ment unilaterally implemented the appeals board system.
Neither the concept of an appeals board nor the proce-
dural rules that had been drafted and approved by man-
agement were submitted to the employees for a vote of
approval or disapproval.
Whatever else the appeals board system may be, it is
not an agreed-on method between this Employer and its
employees for dispute resolution. It is not a grievance
procedure established by contract. It was created and im-
plemented unilaterally by Respondent. The employees
did not voluntarily elect to become parties to a collec-
tive-bargaining agreement containing this or any other
form of dispute resolution machinery.
The National Labor Relations Board had occasion in
two recent cases to set out its standard for deferring to
arbitration awards.25 In United Technologies Corp., 268
NLRB 557 (1984), the Board made it clear that deferral
is appropriate only to the grievance-arbitration provi-
sions of a collective-bargaining , agreement. The Board
said at 559:
It is fundamental to the concept of collective bar-
gaining that the parties to a collective-bargaining
agreement are bound by the terms of their contract.
Where an employer and a union have voluntarily
elected to create dispute resolution machinery cul-
minating in final and binding arbitration, it is con-
trary to the basic principles of the Act for the
Board to jump into the fray prior to an honest at-
tempt by the parties to resolve their disputes
25 At least one U.S. Court of Appeals is of the view that the Board's
current standard gives away too much and cloys not sufficiently protect
employee's rights granted by the Act. Taylor v. NLRB, 786 F.2d 1516
(11th Cir. 1986). In view of my fmding that deferral is inappropriate
under the Board's standards, it is unnecessary to consider the implications
of the 11th Circuit's decision.
PONTIAC OSTEOPATHIC HOSPITAL 467
through that machinery. For dispute resolution
under the grievance-arbitration process is as much a
part of collective bargaining as the act of negotiat-
ing the contract. In our view, the statutory purpose
of encouraging the practices and procedure of col-
lective bargaining is ill-served by permitting the
parties to ignore their agreement and to petition this
Board in the first instance for remedial relief.
In Olin Corp., 268 NLRB 573 (1984), another case in
which the issue was deferral to arbitration under a col-
lective-bargaining agreement, the Board again made it
clear that deferral to arbitration is appropriate only
where the parties have agreed to be bound. The Board
said at 573-574:
In its seminal decision in Spielberg,26 the Board held
that it would defer to an arbitration award where
the proceedings appear to have been fair and regu-
lar, all parties have agreed to be bound, and the deci-
sion of the arbitrator is not clearly repugnant to the
purposes and policies of the Act. Accordingly, we
adopt the following standard for deferral to arbitra-
tion awards. We would find that an arbitrator has
adequately considered the unfair labor practice if
(1) the contractual issue is factually parallel to the
unfair labor practice issue, and (2) the arbitrator
was presented generally with the facts relevant to
resolving the unfair labor practices. In this respect,
differences, if any between the contractual and statu-
tory standards of review should be weighed by the
Board as part of its determination under the Spiel-
berg standard of whether an award is "clearly re-
pugnant" to the Act. [Emphasis added.]
As there is no collective-bargaining agreement in this
case and the appeals board procedure, even if analogized
to arbitratiOn, is not contained in a contract to which all
parties have agreed to be bound, deferral is clearly inap-
propriate.
In light of my finding that deferral is inappropriate as
a matter of law, because all the parties did not agree to
be bound, it is unnecessary to reach the issue of whether
the other Spielberg and Olin standards have been met.
However, in passing, I find it highly unlikely that pro-
ceedings before the appeals board can be considered to
be fair and regular, in view of the fact that employees
appearing before the appeals board are limited to repre-
sentation by Respondent's employee advocate. Respond-
ent's current employee advocate is Robert Rood. His
principal job is director of security, clearly a manage-
ment position; the function of the employee advocate is
merely an added responsibility. Rood's good intentions
notwithstanding, his loyalties are divided and the poten-
tial for conflict of interest is obvious. In any event, the
right to choose one's own counsel is so deeply imbedded
in our system of law that it hardly requires further com-
ment. A system of adjudicating disputes that arbitrarily
denies that right of free choice does not meet basic due
process standards. Thus, it appears that Respondent's ap-
26 Spidberg Mfg. Co., 112 NLRB 1080 (1955).
peals board system is fatally flawed, for that reason, if no
other.
F. Reinstatement and Backpay Remedy
Respondent has failed to show good cause why rein-
statement with backpay should not be ordered in the
case of Charging Parties Bonnie BeWain° and Evelyn
Bach.
As noted earlier, pursuant to Section 10(c) of the Act,
the Board normally orders reisntatement with backpay of
an employee discharged for engaging in protected con-
certed activities, together with a cease-and-desist order
proscribing similar misconduct in the future.
Respondent, however, urges that the normal remedy is
inappropriate in this case, because Charging Parties Bel-
tramo and Bach do not deserve reinstatement or back-
pay. According to Respondent, reinstatement of the two
Charging Parties and award of backpay would be con-
trary to the purpose of the Act, because their actions as
employees of Respondent had a negative effect on inter-
state commerce.
There is no merit to Respondent's contention. The
Board is not in the business of making subjective judg-
ments as to who deserves reinstatement and who does
not. For a variety of reasons, Respondent now concludes
that Charging Parties Bonnie Beltramo and Evelyn Bach
were less than satisfactory employees before they were
first discharged. Their misconduct, if that is what it was,
however, was not a factor in their discharges. They were
discharged for reasons that violated the Act; not for
cause. Respondent cannot escape the consequences of its
illegal actions by arguing, in effect, that if it knew then
what it knows now, it would have discharged them for
causer and, therefore, should not be required to take
them back now.
In any event, the activities of Bonnie Beltramo and
Evelyn Bach, about which Respondent now complains,
were not egregious and caused no demonstrable harm to
Respondent's business of reputation in the community.
The real problem at the Oxford Health Care Center was
lack of adequate supervision, and in that regard Re-
spondent does not have clean hands. Bonnie Beltramo
may have created problems by her persistent tendency to
perpetrate practical jokes on her coworkers, some of
which may well have been in very poor taste. Evelyn
Bach, in turn, may have failed to exercise sufficient su-
pervisory control over Bonnie BeWarn°. But, by the
same token, the same criticism can be leveled at Re-
spondent's Oxford Health Care Center Administrator,
Jack Cruikshanlc, who was Evelyn finch's immediate su-
pervisor and had day-to-day responsibility for operation
of the Center To single out Bonnie Beltramo and
Evelyn Bach for punishment in the form of loss of their
jobs, without imposing any form of punishment on Jack
Cruikshank, is patently unfair. Respondent cannot use
the Board's processes to make scapegoats out of Bonnie
Beltramo and Evelyn Bach for obvious shortcomings in
Respondent's higher management structure.
468 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1.Pontiac Osteopathic Hospital, the Respondent, is an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2. By discharging its employee, Bonnie Beltramo, on 6
January 1984, and again on 7 February 1984, because she
had engaged in protected concerted activities under Sec-
tion 7 of the Act, Respondent committed unfair labor
practices in violation of Section 8(a)(1) of the Act.
3. By demoting its employees, Evelyn Bach, on 9 Feb-
ruary 1984, then discharging her on 23 February 1984
and again on 22 March 1984, because she had refused to
support Respondent's unfair labor practices, Respondent
committed unfair labor practices in violation of Section
8(aX1) of the Act.
4. By maintaining work rules that prohibit employees
from soliciting funds for any purpose on Respondent's
property without Respondent's approval, and from dis-
cussing employee problems among themselves, Respond-
ent committed and is continuing to commit unfair labor
practices in violation of Section 8(a)(1) of the Act.
5. The allegations in the complaint that Respondent
committed unfair labor practices in violation of Section
8(aX1) of the Act by suspending its employees, Sharon
McKay, for 5 days on 7 May 1984, and issuing her an
unfavorable counseling record on 14 May 1984, have not
been proved.
6.The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that Respondent unlawfully interfered
with, restrained, and coerced its employees in the exer-
cise of their Section 7 rights, I fmd it appropriate to
order Respondent to cease and desist therefrom and to
take certain affirmative action to effectuate the policies
of the Act.
Respondent, having engaged in unfair labor practices
in violation of Section 8(aX1) of the Act, shall be or-
dered to cease and desist from engaging in these unfair
labor practices.
Respondent shall offer Bonnie Beltramo and Evelyn
Bach immediate and full reinstatement to their former
positions, or if those positions no longer exist, to substan-
tially equivalent positions, without prejudice to their se-
niority or any other rights or privileges previously en-
joyed, and make them whole for any loss of earnings and
other benefits suffered as a result of the discrimination
against them. Backpay shall be computed as prescribed
in F. W. Woolworth Co., 90 NLRB 289 (1950), with inter-
est as prescribed in Florida Steel Corp., 231 NLRB 651
(1977). See generally Isis Plumbing Co., 138 NLRB 716
(1962).
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed27
27 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
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 pur-
poses.
ORDER
The Respondent, Pontiac Osteopathic Hospital, Ponti-
ac, Michigan, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Discharging its employees because they exercised
their rights guaranteed by Section 7 of the Act, and in
order to discourage other employees from exercising
their rights guaranteed by Section 7 of the Act.
(b) Discharging its supervisory employees for refusing
to support Respondent's unfair labor practices, in order
to discourage its employees from exercising their rights
guaranteed by Section 7 of the Act.
(c) Maintaining in its employee handbook any rule that
prohibits employees from soliciting funds for any pur-
pose on Respondent's property without Respondent's ap-
proval, or from discussing employee problems.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer full and immediate reinstatement to their
former positions to Bonnie Beltramo and Evelyn Bach,
or if those jobs no longer exist, to substantially equiva-
lent positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed, and make
them whole for any loss of earnings and other benefits
suffered as a result of the discrimination against them, in
the manner set forth in the remedy section of the deci-
sion.
(b)Rescind the rules in its employee handbook prohib-
iting employees from soliciting funds for any purpose on
its property without its approval, and from discussing
employee problems.
(c) Remove from its files any reference to the dis-
charge of Bonnie Beltramo on 6 January and 7 February
1984, or the demotion and discharge of Evelyn Bach, on
9 and 23 February, and 22 March 1984, respectively, and
advise them in writing that this has been done and that
no evidence of these unlawful acts will be used as a basis
for future personnel actions against them,
(d) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(e) Post at its facilities in Pontiac, Michigan; Oxford,
Michigan; and Milford, Michigan, and any other facilities
operated by Respondent, copies of the attached notice
marked "Appendix." 28 Copies of the notice, on forms
provided by the Regional Director for Region 7, shall be
posted by the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
22 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 Nation-
al 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."
PONTIAC OSTEOPATHIC HOSPITAL 469
tomarily posted. Reasonable steps shall be taken by the (0 Notify the Regional Director in writing within 20
Respondent to ensure that the notices are not altered, de- days from the date of this Order what steps the Re-
faced, or covered by any other material. spondent has taken to comply.