San Benito Health Foundation

National Labor Relations Board - Board Decisions

Aug 14, 1995

318 N.L.R.B. 299 (N.L.R.B. 1995)

299
318 NLRB No. 23
SAN BENITO HEALTH FOUNDATION
1 On May 10, 1995, Administrative Law Judge Frederick C.
Herzog issued the attached decision. The Respondent filed excep-
tions and a supporting brief.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Drywall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
The Respondent further contends that the judge’s conduct of the
hearing and his findings are tainted with bias, hostility, and prejudice
against the Respondent. Upon our full review of the record and the
decision of the administrative law judge, we find no merit in these
allegations.
3 We shall modify the recommended Order by relettering its af-
firmative paragraphs. We shall also substitute a notice that includes
the Board’s traditional remedial injunction against repetition of ‘‘like
or related’’ unlawful conduct.
San Benito Health Foundation and Hospital and
Health Care Workers Union, Local 250, Serv-
ice Employees International Union, AFL–CIO.
Case 32–CA–12356
August 14, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND COHEN
The issue presented in this case is whether the Re-
spondent discharged employee Elizabeth Garcia in vio-
lation of Section 8(a)(3) and (1) of the Act.1 The
Board has considered the decision and the record in
light of the exceptions and brief and has decided to af-
firm the judge’s rulings, findings,2 and conclusions and
to adopt the recommended Order as modified.3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, San
Benito Health Foundation, Hollister, California, its of-
ficers, agents, successors, and assigns, shall take the
action set forth in the Order as modified.
1. Substitute the following for paragraph 1(a).
‘‘(a) Discharging, or otherwise disciplining, employ-
ees, or otherwise restraining, coercing, or interfering
with their exercise of rights guaranteed by Section 7
of the Act, because they have engaged in activities in
support of a labor organization.’’
2. Substitute the attached notice for that of the ad-
ministrative 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 or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT discharge employees because they
have engaged in activities protected by the Act, includ-
ing serving on a negotiating committee or serving as
a union steward for the Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL offer Elizabeth Garcia immediate and full
reinstatement to her former job or, if that job no longer
exists, to a substantially equivalent position, without
prejudice to her seniority or any other rights or privi-
leges previously enjoyed and WE WILL make her whole
for any loss of earnings and other benefits resulting
from her discharge, less any net interim earnings, plus
interest.
WE WILL notify her that we have removed from our
files any reference to her discharge, and that none of
these records will ever be used against her in any way.
SAN BENITO HEALTH FOUNDATION
Barbara D. Davison, Esq., for the General Counsel.
Eugene Flemate, Esq., of San Jose, California, for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
FREDERICK C. HERZOG, Administrative Law Judge. This
case was heard by me on August 2, 3, and 4, 1994. It is
based on a charge originally filed on February 13, 1992, by
Hospital and Health Care Workers Union, Local 250, Service
Employees International Union, AFL–CIO (the Union). The
charge alleged generally that San Benito Health Foundation
(Respondent), committed certain violations of Section 8(a)(1)
and (5) of the National Labor Relations Act (the Act). On
April 28, 1994, the Regional Director for Region 32 of the
National Labor Relations Board (the Board) issued a com-
plaint and notice of hearing alleging violations of Section
300 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8(a)(1) and (3) of the Act. Respondent thereafter filed a
timely answer to the allegations contained within the com-
plaint, denying all wrongdoing.
All parties appeared at the hearing and were given full op-
portunity to participate, to introduce relevant evidence, to ex-
amine and cross-examine witnesses, to argue orally, and to
file briefs. Based upon the record, my consideration of the
briefs filed by counsel for the General Counsel and counsel
for Respondent, and my observation of the demeanor of the
witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
The complaint alleges, the answer admits, and I find that
Respondent is a California nonprofit corporation, with an of-
fice and place of business in Hollister, California, where at
all times material herein it has been engaged in the business
of providing comprehensive health care services; that during
the 12 months preceding the filing of the complaint, in the
course and conduct of its business operations, it derived
gross revenues in excess of $250,000, and during the same
period purchased and received at its facility mentioned above
goods valued in excess of $5000 directly from points outside
the State of California.
Accordingly, I find and conclude that Respondent is now,
and at all times material herein has been, an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
II. THE LABOR ORGANIZATION
The complaint alleges, the answer admits, and I find that
the Union is now, and at all times material herein has been,
a labor organization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issue
The principal allegation in the complaint is that Respond-
ent discharged its employee, Elizabeth Garcia, on or about
January 17, 1992, because of her activities on behalf of the
Union. Respondent asserts that the allegation is false. It
states that she was discharged because she failed to do her
work properly in that she failed to process billings which
amounted to about $65,000, thereby causing it to lose
money.
B. Background and Labor Relations History
Respondent provides comprehensive health care services
on an outpatient basis to residents of San Benito County,
California. Its goal is to make such services available to the
indigent population that lives and works in the area. Among
its services are pediatric care, family planning, dental care,
and basic medical care. Its income is primarily derived from
the State, under grants which are renewed annually. It par-
ticipates in Federal and state programs aimed at low income
patients. Most billing is directed at collection of funds from
such programs, primarily Medi-Cal.
In the performance of this work, Respondent employed ap-
proximately 35 persons at its Hollister facility, which was lo-
cated on Monterey Street at the time of the occurrence of all
relevant events. These employees included medical profes-
sionals, as well as basic support personnel such as reception-
ists, medical record clerks, and clerks working in the billing
department. Each department had a department head who re-
ported directly to the executive director. The executive direc-
tor was assisted by someone who performed the duties of
personnel manager. At all times relevant herein, the execu-
tive director was Ben Cordova, and Elaine Cantu-Laughon
was the assistant executive director.
Following an organizational campaign, an election and cer-
tification, the Union entered into its first collective-bargain-
ing agreement with Respondent. Its term was October 1,
1990, through September 30, 1993.
Elizabeth Garcia served on the Union’s negotiating com-
mittee, and after the agreement was reached, became a shop
steward for the Union. In that capacity she performed such
duties as dispute resolution, grievance filing, and wage re-
opener negotiations. There is no dispute about whether or not
these activities on her part, which, after all, were carried out
openly and obviously, were well known to Respondent.
C. Elizabeth Garcia
1. Garcia’s work history
Elizabeth Garcia first worked for Respondent in February
1978, and served in a succession of jobs. She became its bill-
ing clerk in 1987. Eventually she was given the title of ‘‘pa-
tients’ account supervisor.’’ There is no dispute, however,
that the position was nonsupervisory. In this job, as soon as
all necessary information had been obtained from either the
patient or the insurer, she billed patients’ accounts. These in-
cluded Medi-Cal, Media-Care-Care, grant programs, private
insurers, corporate insurers, and self-payers. She was also re-
sponsible for troubleshooting the computer system. Because
the system was inadequate, it was often ‘‘down,’’ requiring
her to process accounts by hand.
2. How Garcia’s work was done
Garcia’s work in billing accounts was generally triggered
by her receipt of a form called an ‘‘encounter’’ form. This
form was generated by Respondent, and ‘‘followed’’ a pa-
tient through each visit to the Respondent by the patient with
each ‘‘provider’’ noting the treatment or supplies adminis-
tered to the patient. Eventually, this form made its way to
the billing department, and into Garcia’s hands.
Although a great deal of time was spent at trial describing
the minutia of the billing and/or collection process, I regard
much of what was said as surplusage for purposes of this de-
cision. A general overview, however, follows.
From time to time patients appeared at Respondent’s facil-
ity for treatment lacking the requisite paperwork to enable
processing of their bills. Such patients were not refused treat-
ment, but were told to bring in the appropriate paperwork as
soon as possible. Sometimes the patients did as they were in-
structed. Sometimes they didn’t.
In the latter situation patients were billed directly. But,
while a bill for which a patient had some sort of insurance
was pending direct payment, the records underlying the bill
were kept in a sort of ‘‘tickler file’’ in the billing depart-
ment, which was physically reposed in a black metal box.
301SAN BENITO HEALTH FOUNDATION
1 Cordova hired Roman as Respondent’s manager of its accounting
department in October 1990, with the title of ‘‘Fiscal Officer.’’
Roman became responsible for all Respondent’s accounting, and, as
such, ran the whole accounting department, including the accounts
receivable clerk and the accounts payable clerk. Cordova introduced
Roman to the employees and told them that Roman would be their
supervisor. Thereafter Roman independently prepared the annual
evaluations of employees in the accounting department, granted them
time off, and approved employee timecards. Roman, a salaried em-
ployee, was not covered by the collective-bargaining agreement.
Roman attended management meetings. On these facts I have no dif-
ficulty in finding that at all times material herein Roman was a su-
pervisor within the meaning of Sec. 2(11) of the Act.
Roman was ‘‘laid off’’ by Respondent effective January 6, 1991.
2 Genevieve Sanchez’ testimony was initially to the effect that
Garcia never raised the issue of needing help at any such meeting,
but was later modified to allow for the possibility that Garcia had
done so. Sanchez, still employed by Respondent, gave the impres-
sion of being biased in favor of Respondent.
Cantu-Laughon’s testimony, also apparently biased in favor of Re-
spondent, was initially to the effect that neither Garcia nor Roman
ever mentioned anything concerning help for Garcia in the billing
department, but she eventually admitted that Roman brought it up
at almost every meeting, and that, indeed, Cordova told her that
Roman had discussed getting additional help for the billing depart-
ment, as requested by Roman and Garcia.
Cordova denied having heard such requests for help in the billing
department. I discredit his denial, however, in view of his confessed
desire to see Garcia’s claims defeated, and in view of my highly un-
favorable impression of his testimonial demeanor. Cordova was glib,
and worked hard at appearing charming and honest. The effect was
to produce just the opposite reaction in me. I am suspicious of any
testimony by him which is not independently supported or corrobo-
rated. In short, I regard him to be a fabricator.
3 The only other union steward, Katherine Sims, was not available
for such duties. She had been fired by Cordova early in 1991, alleg-
edly for poor work performance.
4 As Roman recalled it:
Q. Okay. So he said that more than one time?
A. Yeah.
Q. And did he ever express any reason why, why he wanted
her removed?
A. Mainly because she was part of the Union.
Q. Okay. And what words would he use to say that, as best
as you can recall?
Continued
This method of keeping track of ‘‘unbillable’’ forms had
its genesis before the arrival of Garcia in the billing depart-
ment. Employee Debbie Diaz, a credible witness, testified as
to how she had set up the system in 1986 by moving forms
that had previously been kept in an accordion type folder in
the reception area into the more substantial ‘‘black box.’’
Garcia, a thoroughly credible witness, testified that she kept
the system in place throughout her tenure as billing clerk.
The system was well known in Respondent’s facility, and
was used by various other employees in addition to Garcia.
Among other uses of this system was the practice of Garcia,
despite the absence of any formal collection policy, of using
as much time as possible to make telephone calls to jog the
memories of those who ‘‘owed’’ additional paperwork, or
bills. It is undisputed that many such calls were unsuccessful,
and after it was found that the patient had given incorrect in-
formation, or had moved.
3. Garcia’s need for help
It was not, however, always possible for Garcia to devote
a great deal of time to such informal collection efforts. Re-
spondent denied that she ever requested help from it. Both,
however, Garcia and her immediate supervisor, Carlos
Roman,1 testified credibly as to requests made of higher
management, specifically Ben Cordova, during routine de-
partmental meetings to secure help for her to perform the du-
ties of the billing department.
Additionally, Garcia credibly testified as to information
she imparted to management concerning her need for help in
the billing department in the course of management meet-
ings, where she was in attendance in her role as shop stew-
ard.
Finally concerning the issue of whether or not Respondent
was aware of Garcia’s need for help in the billing depart-
ment,2 Garcia credibly testified about having informed man-
agement of that need during the course of various staff meet-
ings. On a few occasions, Barbara Riesgo, the accounts pay-
able clerk, or Diaz, the eligibility clerk, filled in and helped
Garcia. But, usually all that happened was that Garcia was
given some sort of assurance by Cordova that help would be
provided following the move to a new facility, and, in one
instance, help was actually provided in the form of a high
school student being hired temporarily.
4. Garcia’s evaluation
In any event, Garcia’s work was obviously of no great
hindrance to Respondent. For, as shown in her last appraisal,
which was prepared by her immediate supervisor, Roman,
she received ratings of ‘‘very good’’ in nine categories and
‘‘good’’ in the remaining six. She was urged to improve her
supervisory skills through continuing education programs or
any related programs, but was also recommended for a sub-
stantial wage increase.
5. Respondent’s knowledge of Garcia’s union activities
As noted earlier, the Union began its initial organizational
campaign sometime after Garcia became Respondent’s bill-
ing clerk. As also noted earlier, her activities on behalf of
the Union were substantial, various, and obvious. Meanwhile,
however, Cordova became Respondent’s executive director
before the first collective-bargaining agreement was reached
between the parties, effective October 1, 1990.
6. Garcia’s maternity leave
Garcia became pregnant, and went on maternity leave be-
ginning in November 1991, with an anticipated return some-
time in March 1992. While on leave she sometimes came to
Respondent’s facility to perform her duties as a steward for
the Union.3 But her duties in the billing department were as-
signed to Riesgo and Diaz to perform in her absence.
7. Evidence of animus and motivation
In an effort to show that Respondent bore animus toward
adherents of the Union, and that Cordova’s motive in dis-
charging Garcia was to retaliate against her union activities,
counsel for the General Counsel elicited testimony from Car-
los Roman about statements made by Cordova.
According to the testimony of Roman Cordova said to him
one time after Sims had been fired that, ‘‘Katherine Sims is
out, now we go on to the next one.’’4
302 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
A. The strongest one I can remember is to get rid of her.
Q. Get rid of her?
A. Of her. That’s about it. We have to get rid of her.
Q. Okay. Now, was it your impression that that was because
of the Union or did he say it was because of the Union?
A. It wasn’t related to work performance, but for Union mat-
ters.
Q. And he would say that?
A. Yeah.
5 As testified to by Roman: (Questions by Flemate, except where
shown otherwise.)
Q. The statement that occurred around May or June of ’91.
Where did that occur?
A. That occurred, that was again in his office. That was again
in his office.
Q. Okay. And was anyone else present?
A. There was one person that was present but he is not here.
It’s Mr. Raul Perez.
Q. In May of ’91 or June of ’91?
A. May.
Q. Now you are sure it’s May ’91?
A. [No audible response.]
Q. And what was Raul Perez’s job at that time?
A. He was head of the nursing department, the nurse depart-
ment.
ADMINISTRATIVE LAW JUDGE HERZOG: You say Raul Perez
was present at the May or June statement?
THE WITNESS: Um-hmm.
ADMINISTRATIVE LAW JUDGE HERZOG: And am I correct or
am I incorrect in remembering that you earlier testified that that
was supposed to have occurred in Mr. Cordova’s office?
THE WITNESS: Right.
MR. FLEMATE: Did you ever comment on any of these three
conversations with Mr. Cordova? Did you ever make any com-
ment to him once he said this, these statements?
THE WITNESS: No, not really. I didn’t comment anything. Like
I said, one time I thought that when he said that we had to re-
move her that I suggested to relocate her in a different, different
area, a different physical area.
ADMINISTRATIVE LAW JUDGE HERZOG: I thought you testified
to that yesterday that you suggested to him that she could be
put into a different location within the facility. Am I wrong?
THE WITNESS: No, you are right. When he said that we had
to remove her I said, well, I would suggest her to be relocated
in a different physical area in a different department.
ADMINISTRATIVE LAW JUDGE HERZOG: And I thought you
testified yesterday that he made a response to your suggestion.
THE WITNESS: Responded to my suggestion?
ADMINISTRATIVE LAW JUDGE HERZOG: Yes, when you told
Mr. Cordova that you were suggesting that she be moved to an-
other location within the facility I believe—maybe I’m wrong
about it—but I thought you testified yesterday that he responded
to you.
THE WITNESS: No, no, he didn’t respond to that.
ADMINISTRATIVE LAW JUDGE HERZOG: Okay.
By Mr. Flemate:
Q. Did Mr. Cordova ever mention any other reason that he
wanted to get rid of Elizabeth Garcia?
A. No other—No other than being a union representative.
Q. Well, actually he didn’t say because she was the union rep-
resentative. You are putting that together based on the subject
matter that you were talking about. Isn’t that true? He didn’t
say, I want to get rid of her because she is a union representa-
tive. He didn’t say that?
A. No, no, he didn’t say that.
Q. Okay. What you are saying is that the topic was, his frus-
tration with the union activities and then he would say, I have
got to get rid or her or we have got to get rid of her, correct?
A. Correct.
Q. Okay. Did he ever say or do anything that suggested, was
there any other reason as to why he wanted to get rid of her?
A No, he didn’t.
6 Cordova’s testimony concerning his conversations with Roman is
as follows: (Questions by Mr. Flemate.)
. . . there were some meetings where we did discuss the
union situation.
Q. What kinds of things would be discussed when you did
discuss union matters with Mr. Roman?
A. My frustration that I shared with him on a number of occa-
sions was the fact that on some of the items that we were talk-
ing about in regards to union issues that the Union was bringing
up I was finding it rather interesting that what I considered priv-
ileged information was getting out. Sensitive information that I
felt was of a personal nature regarding individuals and wages,
etcetera. . . .
Q. Are you making reference to management proposals at bar-
gaining sessions?
A. Yes.
Q. Okay. And before management would be able to make
these proposals you got the impression that the Union already
knew what the proposals were?
A. Before management sat down with the Union to negotiate
these items it was indicated early on in the discussion that that
information had already been shared or had already been com-
municated. . . . .
Q. So although the contract was effective October 1st, 1990,
come October ’91 you were negotiating a wage reopener?
A. Yes.
Q. And then in 1992 you were negotiating a wage reopener?
A. Yes.
Q. So you are talking about some negotiation sessions that the
comments were made by the union team rejecting out of hand
your proposals before you even had made them?
A. Exactly.
Q. And what was Mr. Roman’s response when you brought
these concerns to him that you were frustrated that there seemed
to be some leaks?
A. His response—It was clear that these types of figures had
to come out of his department and his area and he tried to as-
sure me that was not coming out of, that information was not
coming out of his office, specifically him, or anyone else on his
staff. . . . .
Q. Okay. But notwithstanding his assurances, you still had
your frustrations?
A. Yes.
Q. Did you ever suggest to him that there was a problem in
the location of where Elizabeth Garcia was working?
A. Yes.
Q. And how did you bring that up?
A. Well, it was pretty obvious, like I suggested, the frustration
I was having. . . . I—
Q. Okay. What about the suggestion that Elizabeth Garcia par-
ticularly—Did you ever raise with him that Elizabeth Garcia
perhaps should be moved from the fiscal department?
A. Yes I did.
Q. When did that discussion take place?
Also according to the testimony of Roman, in May 1991
Cordova met with him and the nursing supervisor, Perez. He
recalled Cordova stating, during a discussion of his general
frustrations over dealings between the Respondent and the
Union, that he had to ‘‘get rid’’ of Garcia.5 Roman recalled
that Cordova amplified by saying that Garcia was a threat to
the administration and that he believed that she was leaking
financial information to the Union.6 Roman sought to reas-
303SAN BENITO HEALTH FOUNDATION
A. I can’t remember the date but it was approximately when
I got the first indication at our first meeting for bargaining ses-
sions with the Union.
Q. Okay. Was there any resolution of your suggestion?
A. No.
Q. How did he take your suggestion? Did he agree with it or
did he oppose it?
A. He—He opposed it. He felt like he had the confidence of
his staff that was immediately around him.
Q. And what exactly did you have in mind when you said to
move her? Were you talking about terminating her employment?
A. I was—What I meant and what we discussed was—I mean,
we were all in tight quarters. There was just no room for anyone
to be moved out anywhere in the facility. What I had suggested
for him to do is to work out, either downstairs or down in the
third level, some additional office space. If we couldn’t get just
her situation isolated maybe we could get the situation all the
way downstairs where they can all three work independently in
different offices.
I pretty much left that on him because he would know what would
be a workable situation versus a nonworkable situation. And as far
as I, what I could see and what was happening and the type of indi-
cations I was getting, it was not a workable situation.
7 As testified to by Roman: (Questions by Flemate.)
A. The second time that I remember it clearly was by Septem-
ber.
Q. Why is it that you remember that so clearly in September
of 91?
A. Well, I believe we had some union, he had some union
confrontations in those special times. And that is why I recall
more clearly that he said those, he made those remarks like, we
have got to get rid of her. The incident, I mean—
Q. What was the incident that jogs your memory? You seem
to be pretty clear to September of 91.
A September. I think it was because the union contract had
to be reviewed and some salary increases were due and we were
processing some sort of reclassification for some people to get
some salary increases. And then again, he was frustrated and he
made that remark the second time. That was in September.
sure Cordova that he was mistaken, and thereafter Garcia
was never moved into any less sensitive area.
When the collective-bargaining agreement between the
parties was reopened for wage negotiations in September
1991 Cordova remarked to Roman and Cantu-Laughon that
he had to ‘‘get rid’’ of Garcia.7 Cordova later directed
Roman to discipline Garcia for spending too much time on
union business. Roman privately believed that Garcia was
performing her work as she should, but did as he was told
and spoke to Garcia. They reached agreement that she would
limit her union duties to 1 hour each day, as the contract
specified. She was not, however, ever disciplined for not per-
forming her work.
Diaz, who took over as shop steward after Garcia went on
maternity leave, testified that before she left the employ of
Respondent in August 1992, Cordova told her that the em-
ployees would be better off without a union and that employ-
ees should just cooperate with the board of directors.
8. Garcia’s discharge
In late December 1991 or early January 1992 employee
Evelia Gomez, from the front office, went to Cordova and
asked what should be done with the items in the black box.
Saying he didn’t know what she was asking about, Cordova
and Gomez went to a closet in the billing department. There
they found the black box.
Cordova asked what it was used for. Gomez explained that
it was used for pending claims when patients had not brought
in the proper forms. Diaz chimed in saying that he should
ask Garcia if he had any questions about the black box.
Cordova, however, went to Roman and asked what he
knew of the matter. Roman confessed that he knew nothing
about it. Cordova never asked Roman to inspect anything in
the box, or asked anymore about it. Instead, Cordova said,
according to Roman, that, ‘‘this time I’m going to get her.’’
Cordova then went to consult legal counsel regarding Gar-
cia’s termination.
Thereafter, Cordova asked Garcia to come to the facility.
She did so, and Cordova told her that he had found the black
box, and asked her what it was. Garcia explained fully that
it was used to followup on patients who hadn’t brought their
paperwork. They discussed several examples, and Garcia ex-
plained that while the paperwork was pending the patients
had all been billed individually, until such time as they pro-
vided the appropriate forms.
Garcia did confirm to Cordova that she had not sent out
certain billing statements, saying they had been delayed by
the reports he had asked to have prepared. She said that
when she did the billings for the 60 to 80 patients daily at
the clinic, prepare the reports that Cordova had asked for,
and attend the computer system, there simply wasn’t time to
keep up with the self-pay statements. Cordova kept insisting
that what she was saying was that she hadn’t done her job,
and Garcia kept insisting that was not at all what she was
saying. The meeting ended with no resolution.
Cordova thereafter terminated Garcia without any further
discussion or input from Roman. Weeks later, Cordova re-
ceived a letter confirming her termination, citing as reasons:
Cordova learned on January 2, 1992, that billing
statements to the Respondent’s patients had not been
processed since September 1991;
Cordova learned in January 1992 that billing for var-
ious types of insurance had not been performed back to
1988, costing the Respondent approximately $64,000;
Garcia’s failure to apprise management of needed as-
sistance in management meetings since September,
1990.
A short time later, however, due to the demands of the
clerks in the billing office and the reception area, Cordova
reinstated the ‘‘black box’’ system of keeping track of paper-
work for patients who had not brought their own.
9. Discussion and conclusions
In Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d
899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), the
Board announced the following causation test in all cases al-
leging violations of Section 8(a)(3) or violations of Section
8(a)(1) turning on employer motivation.
First, the General Counsel must make a prima facie
showing sufficient to support the inference that pro-
tected conduct was a ‘‘motivating factor’’ in the em-
ployer’s decision.
Second, upon such a showing, the burden shifts to
the employer to demonstrate that the same action would
304 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 As he testified:
ADMINISTRATIVE LAW JUDGE HERZOG: All right. Well, I gath-
er you do recall that she explained to you. And I don’t know
what her words were but I’m assuming that the gist of them was
along the line, you know, that you have got it wrong, I wasn’t
hiding things, I didn’t do anything to prevent bills from being
collected. Just the opposite this system here was designed to be
a tickler, to help things. And if you assume as I am assuming
that that was the explanation that she gave you my question sim-
ply had to be, whether or not you found that so utterly implau-
sible that there was no way that it could be true?
THE WITNESS: Correct.
ADMINISTRATIVE LAW JUDGE HERZOG: All right. That’s what
I thought. Now was there any reason that you fired her other
than the finding of the black box and the alarming contents
about the money that you came across?
THE WITNESS: No, Sir.
ADMINISTRATIVE LAW JUDGE HERZOG: Nothing else contrib-
uted to it?
THE WITNESS: No, Sir.
have taken place even in the absence of the protected
conduct.
The United States Supreme Court approved and adopted
the Board’s Wright Line test in NLRB v. Transportation
Corp., 462 U.S. 393, 399–403 (1983).
In this case I conclude that the General Counsel has made
a strong case that Garcia was involved in protected activity
preceding her discharge by Respondent. Garcia’s credited
testimony shows that she repeatedly performed work on be-
half of the Union, such as serving on the negotiating com-
mittee and acting as union steward. It cannot be argued that
such conduct is unprotected. The Board finds that the right
of employees to organize for collective bargaining is a strong
Section 7 right, ‘‘at the very core of the purpose for which
the NLRB was enacted.’’ New Process Co., 290 NLRB 704,
705 (1988). In any litany of the ways in which employees
organize themselves for collective bargaining, participation in
negotiations, and in grieving must both surely rank very
high. For this reason they are regarded as protected activities.
Thus, Garcia’s activities must generally be regarded as pro-
tected as well.
Thus, I find that this case is one to which Wright Line has
application. Contrary to Respondent’s position, the motiva-
tion of Respondent has clearly been placed in question
through the testimony of Carlos Roman. For, surely, the tes-
timony of a management official, a person who is clearly a
supervisor, about the words spoken by the highest ranking
official of Respondent concerning his motives in taking ac-
tion against Garcia are highly relevant.
Respondent argues first that Roman is an incredible wit-
ness, and secondly that, in any case, Cordova’s words are
ambiguous.
As to Roman’s credibility, I found him just contrary to
Respondent’s depiction. He is one of those witnesses encoun-
tered periodically whose testimony simply has the ring of
truth about it. I was not troubled, as Respondent argues that
I should be, by his lack of knowledge about some of the de-
tails of how Garcia performed her job. From my perspective,
he appeared to know enough to do his own job, i.e., super-
vise her, while leaving the nitty-gritty details of how she per-
formed to her own discretion. He seemed to be at pains to
avoid exaggeration, and I could detect no bias at all against
Respondent, whether on account of the manner in which his
employment with Respondent ended or on account of some
other reason.
Cordova’s credibility, on the other hand, was continually
impaired by his poor testimonial demeanor, his glibness, his
willingness to fabricate while ‘‘looking-you-in-the-eye.’’ But,
in addition to his exceedingly poor testimonial demeanor, he
repeatedly blandly switched stories when confronted with ap-
parent inconsistencies.
One example was when he sought to portray himself as
still in the process of decisionmaking when he had Garcia in
to be interviewed preparatory to her termination; he testified
that she might have saved her job if she had just not been
so ‘‘arrogant.’’ I believe that he was lying.
Another example was when he couldn’t be pinned down
as to just what the reasons for her discharge were. His later
letter to Garcia was clear enough, and stated three reasons,
all of which can be synthesized into her having used the
‘‘black box system.’’ Yet, at trial he incredibly asserted at
one point that her use of the ‘‘black box system’’ was not
a cause of her firing. Only to shift back to saying that it was
the sole reason for her discharge.8
Still another example was when he sought to explain away
the damning fact of his having reinstated the ‘‘black box sys-
tem’’ only a short time after having used it for the dismissal
of Garcia. According to him, it made all the difference that
its reinstatement had been requested by ‘‘front office’’ per-
sonnel, and apparently it made no difference that its use had
been claimed to have led to the loss of revenues by Respond-
ent for years and years.
I find and conclude that Roman’s testimony about what
Cordova said to him concerning the reasons for Garcia’s dis-
charge is worthy of greater credence than any of Cordova’s
testimony.
Nor do I share Respondent’s view that the testimony of
Roman is ambiguous. Respondent would have it that Cor-
dova’s words, as testified to by Roman, merely reflected
Cordova’s ‘‘frustration’’ at the Union’s actions, and his in-
ability to cope with ‘‘leaks’’ which he clearly thought origi-
nated with Garcia’s position in the fiscal department of Re-
spondent. Respondent’s position, however, fails to accord
with the clear fact that Garcia was never reassigned to a less
sensitive position, or moved to a location in the facility
where her knowledge of confidential matters could be better
controlled. Nor does it explain why, in dealing with the testi-
mony of Roman concerning Cordova’s words, I should not
assign the most common and ordinary meaning to them. I
see no apparent ambiguity to the words, ‘‘get rid of her,’’
especially when used in a context such as the remarks con-
cerning having just gotten rid of one union activist, Sims.
I find such evidence highly relevant to the issue of motiva-
tion. I further find that it also furnishes counsel for the Gen-
eral Counsel with the requisite proof of animus.
Accordingly, I find and conclude that counsel for the Gen-
eral Counsel has proven a strong prima facie case that Garcia
was fired by Cordova precisely because of her union activi-
ties, and thus, in violation of Section 8(a)(3) and (1) of the
Act.
It therefore becomes appropriate to turn to the defenses of
Respondent, in order to determine whether or not ‘‘ they
demonstrate that the same action would have taken place
even in the absence of the protected conduct.’’
305SAN BENITO HEALTH FOUNDATION
The obvious beginning point of any examination of an em-
ployer’s defenses is to look at the employer’s stated reasons
for its actions. This is so because, even in cases where valid
grounds for discipline exist, an employer may neither use
such grounds as a pretext for discrimination nor use them to
bolster disciplinary actions undertaken on some other original
basis. For, it is the ‘‘real motive’’ of the employer which is
decisive. NLRB v. Brown, 380 U.S. 278, 287 (1965); NLRB
v. Great Dane Trailers, Inc., 388 U.S. 26 (1967).
Here, Respondent’s original stated reasons were threefold,
to wit:
Cordova learned on January 2, 1992, that billing
statements to the Respondent’s patients had not been
processed since September 1991;
Cordova learned in January 1992 that billing for var-
ious types of insurance had not been performed back to
1988, costing the Respondent approximately $64,000;
Garcia’s failure to apprise management of needed as-
sistance in management meetings since September
1990.
When I look at these three assertions, however, I find,
based upon my credibility resolution of the conflicts between
the testimonies of Garcia, Roman, and Cordova, that the first
reason is simply untrue. As Garcia attempted repeatedly to
explain to him, all the billing that needed to be done and
which was consistent with the instructions and priorities as-
signed to her work by her supervisor, Roman, or Cordova
through his demands for reports, had been done. What is ger-
mane here is that she had been doing her job as her super-
visor wished her to do. And as he commended her for doing
in her most recent appraisal. And in accord with the prior-
ities set by him prior to her having gone on maternity leave.
And according to the priorities demanded by Cordova’s re-
ports. True enough, Cordova didn’t know about her system
for keeping track of accounts that couldn’t be processed in
the usual way. And neither did Roman know of the full de-
tails. Yet, each was evidently satisfied for years with the re-
sult she obtained.
Similarly, when I examine the third assertion, I find, based
upon the same credibility resolutions, that it is simply untrue
as well. Garcia testified over and over about having re-
quested help repeatedly of Cordova. Her testimony ultimately
was corroborated by several other witnesses, including those
of Respondent.
An employer’s stated reason for discipline is the one
which must be examined for validity, rather then some other
reasons which may come to light after the employer has al-
ready announced its reason. And, if the stated reason is un-
convincing, invalid or untrue, the very fact of its assertion
may be viewed as tending to support the conclusion that an
allegation of unlawful motivation is true. Golden Day
Schools v. NLRB, 644 F.2d 834, 838 (9th Cir. 1981); McCain
Foods, 236 NLRB 447, 452–453 (1978); Colorflo Decorator
Products, 228 NLRB 408, 418 (1977). Cf. Limestone Ap-
parel Corp., 255 NLRB 722 (1981), enfd. per curiam (6th
Cir. 1982). Here, I find and conclude that the assertion of
reasons one and three supports the inference, which I draw,
that Respondent harbored illegal motivation in asserting these
reasons.
Thus, Respondent is left with only the second assertion to
provide a defense that it would have taken the same action
regardless of her protected activities. I regard it as axiomatic
that if an employee actually performs work so poorly, or
hides faulty work, so that it results in a substantial monetary
loss for the employer then the employer is free to discharge
that employee, regardless of past union or protected activi-
ties.
Of course, having once asserted a reason for its action, an
employer may not thereafter shift to another or additional
reason without risking an adverse inference being drawn
from its inconsistency. Zurn Industries, 255 NLRB 632, 635
(1981), citing A. J. Krajewski Mfg. Co. v. NLRB, 413 F.2d
673, 675 (1st Cir. 1969); and NLRB v. Taknor-Apex Co., 468
F.2d 692, 694 (1st Cir. 1972). For it is axiomatic that an em-
ployer’s distortion and magnification of an employee’s defi-
ciencies casts a deep shadow over any claim that mere busi-
ness judgment was involved in the employee’s termination
Postal Service, 256 NLRB 736, 738 (1981).
And that’s what I believe has occurred here. Indeed, Re-
spondent has asserted several different amounts that it claims
that it lost by virtue of Garcia’s misdeeds. They range from
the original assertion of approximately $65,000 in its answer,
to approximately $54,000 at trial, to the vastly inflated figure
of ‘‘over $200,000’’ in its brief. This latter figure is obvi-
ously based upon the testimony of Vicky Torres, who took
over as Respondent’s fiscal officer after the departure of
Roman. Torres’ demeanor during trial clearly showed her
bias against Garcia, and I find her testimony at odds with the
more credible testimony of Roman to the effect that Re-
spondent lost nothing at all by virtue of any billings being
delayed, or being in the ‘‘black box.’’ As Roman and Garcia
each credibly explained, bills were generated by the com-
puter, and went out to each patient regardless of the fact that
some paperwork was held in the black box pending its com-
pletion by the patient’s compliance with instructions to bring
in needed forms.
Thus, it has not been demonstrated to me that Respondent
lost so much as a penny due to any actions taken or not
taken by Garcia. The bills still went out, generated by the
computer. And collections on bills were admittedly not Gar-
cia’s responsibility, but were merely something she had tried
to do as time and circumstances permitted.
One key to understanding Respondent’s motivations comes
from considering that Garcia was discharged for doing a job
poorly which wasn’t her job at all. And using devices or
methods that Respondent had no concern with previously.—
True, Roman didn’t know what methods she used to keep
track of certain information. But, neither did Cordova before
he jumped to the conclusion that her use of the black box
system was responsible for financial losses by the Respond-
ent. Where employees are selected for layoff or transfer,
partly because of their alleged . . . poor work performance,
yet have never been apprised of the employer’s negative
view of their work . . . attitude, and it further appears that
the employer has not conducted an even rudimentary inves-
tigation of such dereliction, it may give rise to an inference
of unlawful motivation. K & M Electronics, 283 NLRB 279
(1987).
Apparently it was assumed that Garcia had failed in her
duties because the box was found in a closet. Yet, there is
no evidence that she put the box in the closet. And it was
306 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 See generally Isis Plumbing & Heating Co., 138 NLRB 716
(1962).
10 See Sterling Sugars, 261 NLRB 472 (1982).
11 All outstanding motions inconsistent with this recommended
Order are hereby denied. If no exceptions are filed as provided by
Sec. 102.46 of the Board’s Rules and Regulations, the findings, con-
clusions, 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 purposes.
12 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
not discovered there until many weeks after her departure for
maternity leave. Who knows how it got into the closet? I
don’t know. Certainly Respondent did not know when it dis-
ciplined her.
A violation is established where the evidence supports a
finding that an employer has resorted to a campaign of
‘‘watchfully waiting for . . . union enthusiasts to give the
. . . slightest reason or pretext to get rid of them because
of their union activities.’’ NLRB v. Lipman Bros., Inc., 355
F.2d 15, 21 (1st Cir. 1966). That seems to me to be precisely
what occurred in this case. And, it is the only conclusion that
accords with the evidence of Cordova’s stated intent to
‘‘gether.’’
Cordova seems to have been a full race to judgment of a
seasoned and superior employee, based upon her past record.
Yet, the inference of unlawful motivation is doubly present
when seasoned and superior employees are laid off or reas-
signed, thereby apparently causing an employer to face the
prospect of replacing them with someone unseasoned (much
less when the employer fails and refuses to recall the sea-
soned and superior employee as vacancies occur, as here). It
would seem that such a course of action by an employer
would cost it substantial sums of money, precisely the oppo-
site result which one presumes the employer hopes to occur,
absent an unstated motive. An employer is not required to
act logically, or consistently. But, when his actions fly in the
face of his own seeming financial self-interest, they cannot
avoid examination for evidence of intent to disguise an un-
lawful motivation. Compare NLRB v. Davidson Rubber Co.,
305 F.2d 166, 169 (1st Cir. 1962); NLRB v. Stage Employees
IATSE (Film Editors), 303 F.2d 515, 519 (9th Cir. 1962),
cert. denied 371 U.S. 826 (1962).
Summarizing, I find and conclude that Respondent’s as-
serted reasons for its actions fail to convince me that it
would have taken the same course even absent Garcia’s pro-
tected union activities.
In conclusion, I find and conclude that Garcia was dis-
charged by Respondent in violation of Section 8(a)(3) and
(1) of the Act.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) and (3) of the Act
by discharging its employee, Elizabeth Garcia, because she
had engaged in protected and union activities.
4. The above unfair labor practices have an effect upon
commerce as defined in the Act.
THE REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
Having found that employee Elizabeth Garcia was unlaw-
fully discharged, Respondent is ordered to offer her imme-
diate reinstatement to her former position, displacing if nec-
essary any replacement, or to a substantially equivalent posi-
tion without loss of seniority and other privileges. It is fur-
ther ordered that Elizabeth Garcia be made whole for lost
earnings resulting from her discharge, by payment to her of
a sum of money equal to what she would have earned from
the date of this suspension to the date of her return to work,
less net interim earnings during that period. Backpay shall be
computed in the manner prescribed by F. W. Woolworth Co.,
90 NLRB 289 (1950), and Florida Steel Corp., 231 NLRB
651 (1977).9 Interest on any such backpay shall be computed
as in New Horizons for the Retarded, 283 NLRB 1173
(1987).
It is further ordered that the Respondent remove from its
records any references to the counseling, warning, and sus-
pension mentioned, and provide Elizabeth Garcia written no-
tice of such expunction, and inform her that the Respond-
ent’s unlawful conduct will not be used as a basis for further
personnel actions against her.10
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended11
ORDER
The Respondent, San Benito Health Foundation, Salinas,
California, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging, or otherwise disciplining, employees, or
otherwise restraining, coercing, or interfering with their exer-
cise of rights guaranteed by Section 7 of the Act, because
they have engaged in activities in support of a labor organi-
zation.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Elizabeth Garcia immediate and full reinstate-
ment to her former job or, if that job no longer exists, to a
substantially equivalent position, without prejudice to her se-
niority or any other rights or privileges previously enjoyed,
and make her whole for any loss of earnings and other bene-
fits suffered as a result of the discrimination against her, in
the manner set forth in the remedy section of the decision.
(b) Remove from its files any reference to the unlawful
discharge, and notify Elizabeth Garcia in writing that this has
been done and that none of these records will ever be used
against her in any way.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(d) Post at its facility in Salinas, California, copies of the
attached notice marked ‘‘Appendix.’’12 Copies of the notice,
307SAN BENITO HEALTH FOUNDATION
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
on forms provided by the Regional Director for Region 32,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.