St. Alphonsus Hospital

National Labor Relations Board - Board Decisions

Apr 30, 1982

261 N.L.R.B. 620 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
St. Alphonsus Hospital and Office and Professional
Employees International Union, Local 196,
AFL-CIO. Case 19-CA- 12843
April 30, 1982
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On November 30, 1981, Administrative Law
Judge Jerrold H. Shapiro issued the attached Deci-
sion in this proceeding. Thereafter, Respondent
filed exceptions and a supporting brief, and the
General Counsel filed a brief in support of the Ad-
ministrative Law Judge's Decision and a response
to Respondent's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions2 of the Administrative Law
Judge and to adopt his recommended Order.3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, St. Alphonsus
Hospital, Boise, Idaho, its officers, agents, succes-
sors, and assigns, shall take the action set forth in
the said recommended Order.
I Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products.
Inc. 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
I In affirming the Administrative Law Judge's conclusion that Re-
spondent violated Sec. 8(aXl) of the Act when Radiology Department
Manager Deneen announced at a department meeting that Respondent in-
tended to discharge coordinator Gurr because he had voted in the repre-
sentation election, we rely not only on the Administrative Law Judge's
conclusion that Supervisors Champion and Benoit, who attended the
meeting, are not supervisors within the meaning of Sec. 2(11) of the Act,
but we rely also on the Administrative Law Judge's conclusion that co-
ordinator Code, who also attended the meeting in question, was not a su-
pervisor within the meaning of the Act during the time material herein.
I In accordance with his dissent in Olympic Medical Corporation, 250
NLRB 146 (1980), Member Jenkins would award interest on the backpay
due based on the formula set forth therein.
Inasmuch as the Administrative Law Judge found that Respondent's al-
leged lawful reason for changing the working hours of Gurr was a fabri-
cation, Member Jenkins considers the Administrative Law Judge's reli-
ance on the principles of Wright Line. a Division of Wright Line, Inc., 251
NLRB 1083 (1980), to be unnecessary and misleading.
261 NLRB No. 91
DECISION
STATEMENT OF THE CASE
JERROLD H. SHAPIRO, Administrative Law Judge: The
hearing in this case held on May 21 and 22, 1981, is
based on an unfair labor practice charge filed by Office
and Professional Employees International Union, Local
196, AFL-CIO, herein called the Union, on October 7,
1980, and a complaint issued on November 24, 1980, on
behalf of the General Counsel of the National Labor Re-
lations Board, herein called the Board, by the Regional
Director for Region 19 of the Board, alleging that St.
Alphonsus Hospital, herein called Respondent, has en-
gaged in unfair labor practices within the meaning of
Section 8(a)(1) and (3) of the National Labor Relations
Act, herein called the Act, by changing the work sched-
ule of employee Michael Gurr in September 1980 and
discharging him later that month because of his union ac-
tivities, and by informing employees that it intended to
terminate certain individuals because they had voted in a
union representation election. Respondent filed an
answer denying the commission of the alleged unfair
labor practices. '
Upon the entire record, from my observation of the
demeanor of the witnesses, and having considered the
post-hearing briefs submitted by the General Counsel and
Respondent, I make the following:
FINDINGS OF FACT
I. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Background and the Events Leading Up to
and Surrounding the Change in Gurr's Work
Schedule and His Discharge
Respondent operates St. Alphonsus Hospital in Boise,
Idaho, where it employs more than 1,000 persons. The
hospital department involved in this case is the depart-
ment of radiological services, herein referred to as the
radiology department. During the time material herein
Fred Deneen was the department manager. The assistant
manager was Terry Krogstad. Deneen was subordinate
to Assistant Administrator Chris Anton who reported to
the Hospital's administrator, Sister Beverly Ann Nelson.
The alleged discriminatee Michael Gurr was employed
in the radiology department.
At the time of Gurr's discharge in September 1980, he
was classified as a coordinator. He worked the weekend
shift, Friday through Sunday: 8 hours Friday; 16 hours
Saturday; and 16 hours Sunday. During the remainder of
the week Gurr operated his own business taking portable
X-rays for two radiologists. Respondent's management
including Deneen knew this. Gurr began work for the
Hospital in May 1976 as a staff technologist in the radiol-
ogy department on the graveyard shift from 11:30 p.m.
to 7 a.m. He worked this shift until late 1977 when he
started working the 40-hour weekend shift that he was
' In its answer Respondent admits that it is an employer engaged in
commerce within the meaning of Sec. 2(6) and (7) of the Act and meets
the Board's applicable jurisdictional standard, and that the Union is a
labor organization within the meaning of Sec. 2(5) of the Act.
620
ST. ALPHONSUS HOSPITAL
working at the time of his discharge. Initially, when he
began working weekends he was classified as a senior
technologist, then with the other senior technologists in
the department was reclassified to the position of super-
visor and then, in February 1980, was reclassified to co-
ordinator.
The function of the radiology department, briefly
stated, is to take X-rays of the sick and injured who are
patients at the Hospital or come to the Hospital in an
emergency basis. In addition to the employees of the
Hospital who work in this department, there are radiolo-
gists employed there who are physicians trained to read
the X-rays taken by the department's employees. The ra-
diologists are not employees of the Hospital, but are in-
dependent contractors who, as a group, have a contract
with the Hospital to provide radiologic services. The ra-
diologists' work brings them into close contact with the
technicians employed in the radiology department and
the radiologists' work is dependent on the quality of the
work performed by the technicians. Likewise, the group
of physicians who are employed in the Hospital's emer-
gency room, who are also independent contractors, rely
on the work of the technicians employed in the radiol-
ogy department.
In late July or early August 1979 the Union com-
menced a campaign to organize the Hospital's employ-
ees. On March 31, 1980, the Union filed representation
petitions with the Board seeking a representation election
in two separate bargaining units: a unit encompassing
only the Hospital's professional employees and another
unit encompassing all other employees excluding the pro-
fessionals. A hearing was conducted in April 1980 and
during the hearing the representatives of the Union and
Respondent stipulated that inasmuch as persons classified
as "coordinator-radiology" and "supervisor-radiology"
had the authority to hire or fire or effectively recom-
mend the same that the employees employed in those
classifications should be excluded from voting in the rep-
resentation elections. The hearing was closed later in
April. However, prior to the issuance of a decision the
representatives of the Union and Respondent, with the
approval of the Board's Regional Director, on May 30,
1980, entered into separate agreements to hold elections
in the foresaid bargaining units. There is no evidence
that at the time the parties entered into these election
agreements that there was an agreement whereby the
parties agreed that persons employed as coordinator-radi-
ology or supervisor-radiology were ineligible to vote as
statutory supervisors. However, the Excelsior list submit-
ted by Respondent to the Union omitted the name of
Gurr and apparently omitted the names of all of the
other persons classified as coordinators.' The election
was conducted on July 10, 1980, and inasmuch as the
Union failed to secure a majority of the ballots cast in
either unit the Board certified the results of the election.
'An "Excelsior List" is a list of the names and addresses of potentially
eligible voters drawn up by the employer and submitted to the Board
several weeks before an election. The list is distributed to all parties to
the election to facilitate access to the electorate. See Excelsior Underwear,
Inc and Saluda Knitting Inc., 156 NLRB 1236 (1966). This same list is
also used during the election to indicate which employees actually voted.
When the Union commenced its organizational cam-
paign Gurr was one of approximately 14 persons em-
ployed by Respondent who were on the Union's organi-
zational committee. They were responsible for the
Union's organizational campaign. Early in August 1979
the names of these persons were transmitted by letter to
Respondent's management which was informed that they
were organizers for the Union. Shortly after management
received this letter, Gurr, in the presence of Assistant
Administrator Anton, was informed by Department
Manager Deneen that management considered Gurr to
be a supervisor and that all of Gurr's union activity must
cease. Gurr indicated he was not sure he agreed that he
was a supervisor and asked to see a copy of his job de-
scription. Anton told him he did not need to see a copy
of his job description, that he was considered a part of
management and should act accordingly. Gurr again
stated he was not sure he was a supervisor and asked to
see his job description. Anton again declined to show
him a copy of his job description. Deneen warned Gurr
that if he did not stop his union activity his job would be
in jeopardy. Gurr concluded this conversation by stating
he would have to check into the matter further and con-
sider it. Shortly thereafter Gurr informed Deneen that he
would comply with management's requests and cease all
of his union activities. But, late in January 1980 when
Gurr was complaining to management about Respond-
ent's failure to promote him to the position of coordina-
tor, it is undisputed that Deneen told him that the reason
he was not promoted was that Deneen and Anton still
thought he was involved with the Union because he had
been observed talking with union sympathizers and his
wife was observed distributing union leaflets. Deneen
stated that Gurr would be promoted if he swore he
would have no more contact with the Union and would
support the Hospital. Gurr replied that his wife had not
engaged in the union activity attributed to her and that
he had ceased his union activities, whereupon he was
promoted to coordinator. Thereafter in April 1980 Gurr
attended the representation hearing as a spectator and
with several other employees sat immediately behind the
representative of the Union. And, on July 10, 1980, the
day of the representation election. Gurr and another co-
ordinator employed in the radiology department, Ray
Kapalczynski, went to the polling area and voted. Since
their names were not on the Excelsior list their ballots
were challenged by the Board agent in charge of the
election. Later that day when the parties discussed the
challenged ballots Respondent's representative took the
position that Gurr and Kapalczynski were ineligible to
vote because they were statutory supervisors. The repre-
sentative of the Union indicated that the Union did not
have sufficient information about their duties to take a
position.
On July 10, 1980, when Deneen was informed that
Gurr and Kapalczynski voted in the election he became
very angry and decided to discharge them because they
had voted contrary to Respondent's instructions not to
vote.s Deneen's superior, Assistant Administrator Anton,
' Deneen testified that Gurr and Kapalczynski, along with the other
persons who Respondent regarded as supervisors, had been told by Re-
Continued
621
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agreed that Gurr and Kapalczynski should be dis-
charged, but on July 10 Deneen and Anton accepted the
recommendation of Respondent's lawyer that Respond-
ent take no action against Gurr or Kapalczynski for I
month so as to allow a "cooling off" period. Between
this July 10 meeting and the subsequent meeting with
Respondent's lawyer held on approximately August 10,
1980, infra, Deneen during a meeting attended by Assist-
ant Manager Krogstad, Supervisors Champion and
Benoit, and Coordinators Lawson and Code told them
that Respondent intended to discharge Gurr and Kapalc-
zynski because they voted in the union representation
election even though they were told they were ineligible
to vote as supervisors.' On approximately August 10,
1980, Deneen and Anton met with Respondent's lawyer
and its personnel director to discuss the discharges of
Gurr and Kapalczynski. The lawyer informed them that
they had every right to fire Gurr and Kapalczynski, but
warned that if they did fire them they could expect the
discharges to be litigated, that he felt the discharges
would cause a lot of morale problems among the staff,
and that in view of these considerations plus the fact that
Respondent had just won a victory in the representation
election that he felt Respondent would be better off to
forget about the matter and not discharge them. Deneen
and Anton accepted the lawyer's recommendation.
On Monday, September 15, or Tuesday, September 16,
1980, Deneen informed Gurr that his work schedule was
being changed from weekends to weekdays, that effec-
tive Monday, September 22, Gurr would work the day
shift, 8 a.m. to 5 p.m., Monday through Friday, rather
than his 40-hour weekend shift. Deneen stated that the
reason for the change in Gurr's work schedule was that
the radiology department needed another coordinator to
work on the day shift. Gurr protested this change in his
work schedule. He told Deneen it would hurt him finan-
cially because for the past 3 years he had been operating
his own portable X-ray business during weekdays. Gurr
asked whether Deneen was responsible for the schedule
change or whether Deneen's superiors had directed him
to make the change. Deneen stated that he, not his supe-
riors, instituted the change because he needed a person
of Gurr's ability to work weekdays because of a "staffing
need" in the department during the day shift. Gurr indi-
cated he did not think he was being treated fairly.
Deneen told him to speak with Respondent's personnel
director, David Halter, if he felt he were being treated
unfairly. 5
spondent's attorney that they were not eligible to vote in the representa-
tion election because they were supervisors, and that it was even illegal
for them to be in the voting area because of their supervisory status.
' The record also reveals that Deneen, sometime between June 22,
1980, and July 22, 1980, told radiologist James Mack that since Gurr was
a supervisor or an administrator that he should not talk about the Union
or be "as actively involved in union activity as he was," and indicated
that he thought Gurr's family was also involved in union activity. In ad-
dition, after the July 10, 1980, representation election Deneen also in-
formed Mack that Gurr had "influenced" Coordinator Kapalczynski to
vote in the election.
I The description of the aforesaid conversation between Gurr and
Deneen and their later conversation, infra, on Friday, September 19,
1980, is based on Gurr's testimony. I have rejected Deneen's version of
these conversations insofar as they conflict with Gurr's because in terms
Shortly after Gurr was notified about his new work
schedule the subject was brought up at a supervisory
meeting. The supervisors informed Deneen that the em-
ployees in the radiology department felt Respondent was
treating Gurr unfairly by transferring him from week-
ends to weekdays and asked whether Gurr was being
punished "on account of the Union." Supervisor Linda
Benoit testified that, in response to this question, Deneen
told the supervisors, "Yes, it's true, but we are to tell the
people that the reason [for Gurr's reassignment from
weekends to weekdays] is because the weekend shifts
were going down; we were not having as many patients,
and that our weekday shift was increasing. " '
On November 16, 1980, Gurr, immediately after speak-
ing to Deneen, went to Personnel Director Halter's
office. Halter's secretary informed him that Halter was
out of the office, so Gurr left a message for Halter to
contact him as soon as possible. Halter failed to contact
Gurr, so prior to starting work on Friday, September 19,
Gurr again spoke to Deneen. Gurr asked whether he had
any choice in the matter of working weekdays. Deneen
told him that he would have either to work weekdays as
requested or resign. Gurr stated that he would not
resign, that he felt that what Deneen was doing to him
was unfair. Deneen again advised Gurr to speak to Per-
sonnel Director Halter if he felt he was being treated un-
fairly. The meeting ended with Deneen agreeing to give
Gurr 2 weeks more before he had to report for work on
the day shift, so that the radiologists whom Gurr worked
for during the week would have an opportunity to make
other arrangements.
On Friday, September 19, upon leaving Deneen's
office Gurr again went to the office of Personnel Direc-
tor Halter and was informed that Halter was not in his
office and that the message that Gurr had left earlier that
week was still on Halter's desk. Gurr asked Halter's sec-
retary to be sure and have Halter phone him at the Hos-
pital anytime that weekend as he would be working
there for the entire weekend. '
Later that same day, Friday, September 19, after start-
ing work Gurr spoke to three of the department's radi-
ologists, including Dr. James Mack who is the depart-
ment's medical director. Gurr asked if they had been in-
formed about the changes which were going to effect
the department's weekend shift. They indicated they had
not been informed of any changes. Gurr told them he
was being removed from the weekend shift and reas-
signed to the weekday shift against his will and that
there was going to be a total change in the organization
of his demeanor Gurr impressed me as a reliable and sincere witness
whereas Deneen did not.
a The description of what was stated about Gurr's reassignment to
weekdays at this meeting is based on the testimony of Linda Benoit who,
when she testified, was employed by Respondent and who, in terms of
her demeanor, impressed me as a reliable and sincere withness. Deneen
generally denied having told anyone that Gurr's work schedule was
changed because of Gurr's union sympathies, but did not testify about the
aforesaid meeting or what, if anything, about Gurr was mentioned at that
meeting. Benoit impressed me as a more credible witness than Deneen.
7 It is undisputed that Halter did not contact Gurr. Halter testified that
he did not receive Gurr's message until "late on Friday afternoon."
Halter did not explain why he made no effort to contact Gurr that week-
end as requested.
622
ST. ALPHONSUS HOSPITAL
of the weekend shift. Gurr indicated he felt the depart-
ment would not be able to provide the same service
weekends without his presence for the full 40 hours be-
cause he, Gurr, knew more about what went on in the
department weekends than anyone who would be rotat-
ing through there. The radiologists indicated they had
not been informed of this change. Gurr indicated that he
felt he could not accept the change in schedule because
it would destroy him financially by disrupting his other
business and stated that he felt he was being punished by
Respondent because of his past involvement with the
Union. Dr. Mack advised Gurr that he thought very
highly of him as a technologist and that he would speak
with Department Manager Deneen about the matter.
On September 19, after having spoken with the radi-
ologists, Gurr also informed the physician in charge of
the emergency room, Dr. Robert Miller, that he was
being reassigned to work weekdays and that this would
affect the weekend staffing of the emergency room. Gurr
also stated that he felt his reassignment was unfair and
that it was a political move by Respondent designed to
punish him. Miller offered to help Gurr by drafting a
letter to Deneen on behalf of Gurr which would be
signed by the other emergency room physicians. In fact,
such a letter, signed by six of the physicians who worked
in the emergency room, was delivered to Deneen on
Monday morning, September 22, 1980. The letter reads
as follows:
It has come to our attention that Mr. Gurr will
be moved from a weekend coordinator to a daytime
week coordinator. We feel that this transfer, for
what ever management reason, is not in the best in-
terest of patient care and emergency x-ray cover-
age.
During the busy weekend patient load in the
emergency room, it is important that the emergency
room physicians be provided with excellent ancil-
lary medical coverage. Our confidence in the radi-
ology technician is most important to our needs, es-
pecially during times when there are less radiolo-
gists in the department and when there are in-
creased patient visits. Mr. Gurr has provided excel-
lent trauma and emergent medical x-ray films for
the emergency physicians and has immediate rap-
port and patient interest that often has a calming
effect upon the anxiety prone traumatized patient.
We strongly recommend that you continue the
same coverage for the weekend that has been pro-
vided in the past. We too often have been provided
with far from excellent coverage for these difficult
night and weekend hours. This may be a result of
lack of interest of the technician to work these
hours or lack of technician expertise. We therefore
see no reason to make a change in a system and
person that provides these excellent services and
qualities.
On Monday, September 22, Dr. Mack met with
Deneen and Anton and indicated that the department's
radiologists were upset about management's decision to
remove Gurr from the weekend shift. Mack stated that
Gurr was doing an excellent job with respect to the
technical coverage on the weekends and that the physi-
cians in the emergency room were also happy with his
work and felt he was doing a good job on weekends.
Deneen indicated that the decision to reassign Gurr to
the day shift had been a joint decision made by himself
and Anton and explained the reason for the decision.
The meeting concluded with Deneen and Anton indicat-
ing that they agreed with Mack's evaluation of Gurr's
work on the weekend shift, but that they felt that by
complaining to the radiologist about his change of sched-
ule rather than following the Company's usual grievance
procedure that Gurr had acted improperly and that be-
cause of this indicated Gurr would be terminated.8
Later, on September 22, Gurr asked Mack if he had
learned anything from the Hospital's administration
about Gurr's change of assignment. Mack answered that
Gurr did not want to know what he had learned because
things did not look good for Gurr. Gurr asked whether
Mack meant that Gurr was going to have to work week-
days. Mack told him that it did not make any difference
if he accepted the weekday assignment because the Hos-
pital's administration had informed Mack that they "were
not willing to work with [Gurr] in any way."
On Tuesday, September 23, Deneen asked Gurr to
come to his office. When Gurr entered the office, ac-
cording to Gurr's credible and undenied testimony,
Deneen stated, "I'd finally done it, that I had been
asking for this for a long time." Gurr asked what Deneen
meant. Deneen handed him a termination slip and a ter-
mination check. When Gurr asked why he was being ter-
minated, Deneen pointed to the termination slip which
stated that Gurr was being discharged because he "failed
to follow established grievance procedure. " '
On September 23 Deneen called a meeting of the staff
of the radiology department for the purpose of informing
them about Gurr's termination. He told them that the
' The description of the aforesaid conversation Mack had with Deneen
and Anton is based on a composite of Mack's and Deneen's testimony
which was not inconsistent. However, whenever there is a conflict in
their testimony about what was stated at this meeting and who was pres-
ent, Deneen failed to place Anton at this meeting, I have credited Mack's
testimony because of his status as a disinterested witness and because in
terms of his demeanor he impressed me as a more credible witness then
Deneen.
' Respondent's grievance procedure as set forth in its "personnel poli-
cies" handbook distributed to employees, reads as follows in pertinent
part:
EMPLOYEE PROBLEMS
If an employee feels he/she has a just complaint or a problem,
Saint Alphonsus Hospital has a definite procedure which is to be fol-
lowed.
FIRST The employee should discuss the complaint frankly and sin-
cerely with his/her immediately [sic] supervisor. If this fails to
prove satisfactory answer ....
SECOND The employee should discuss it with the Division Direc-
tor. If it is a justifiable complaint, it wil be corrected. However, if
a solution is not reached in this manner ....
THIRD An appointment with the Personnel Director should be re-
quested by the employee to discuss the complaint. The Personnel
Director will review the complaint and, if necessary, will discuss it
with the Administrator. The decision of the Administrator will be
final and will be made known to the employee immediately after
all facts are known and evaluated.
623
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hospital had decided to terminate Gurr, that Gurr "had
been asking for it for a long time," and stated that if any
of the staff wanted to find out the reason for Gurr's ter-
mination they could speak to Deneen personally after the
meeting. Immediately following the meeting it is undis-
puted that technician Linda Wandro went to Deneen's
office and asked why Gurr had been terminated and that
Deneen told her that the reason for Gurr's termination
was that Gurr "refused to work the day shift."
Respondent admittedly did not hire a technologist to
take the position Gurr was scheduled to assume on the
day shift and there is no evidence that Respondent other-
wise assigned someone to fill that position. And, regard-
ing the operation of the weekend shift after Gurr's termi-
nation, the record reveals for a period of 2 months im-
mediately after his termination there were weekends
during which no supervisor or coordinator was assigned
to work on that shift, rather the shift was covered by a
staff technologist. '0
B. The Supervisory Status of Benoit, Champion, and
Gurr
1. Applicable principles
Under Section 2(11) of the Act, the term "supervisor"
includes:
Any individual having authority, in the interest of
the employer, to hire, transfer, suspend, lay off,
recall, promote, discharge, assign, reward, or disci-
pline other employees, or responsibly to direct
them, or to adjust their grievances, or effectively to
recommend such action, if in connection with the
foregoing the exercise of such authority is not or a
merely routine or clerical nature, but requires the
use of independent judgment.
The burden approving supervisory status rests on the
party alleging that such status exists. Tucson Gas & Elec-
tric Company, 241 NLRB 181 (1979), and cases cited
therein. While it is established that the possession of any
one of the functions enumerated in Section 2(11) is suffi-
cient to establish supervisory status, Section 2(11) re-
quires, however, that a supervisor must perform these
functions with independent judgement as opposed to in a
routine or clerical manner. Walla Walla Union-Bulletin,
Inc. v. N.L.R.B., 631 F.2d 609, 613 (9th Cir. 1980);
N.L.R.B. v. Harmon Industries, Inc., 565 F.2d 1047, 1049
(8th Cir. 1977); N.L.R.B. v. Security Guard Service, Inc.,
384 F.2d 143, 147 (5th Cir. 1967). Although the existence
of any of the Section 2(11) powers, "regardless of the
frequency of its exercise is sufficient," the "failure to ex-
ercise [supervisory powers] may show the authority does
not exist." Laborers and Hod Carriers Local No. 341 v.
N.L.R.B., 564 F.2d 834, 837 (9th Cir. 1977). Moreover,
isolated and infrequent incidents of supervision does not
elevate a rank-and-file employee to supervisory level.
1' Based on the testimony of staff technologist Linda Wandro who
worked weekends twice during this 2-month period when there was no
supervisor or coordinator, I have considered Deneen's testimony that he
did not believe there was such a period when the weekend shift was
without supervision, but Wandro impressed me as a more credible wit-
ness than Deneen in terms of her demeanor.
N.L.R.B. v. Doctors' Hospital of Modesto, Inc., 489 F.2d
772, 776 (9th Cir. 1973); Westinghouse Electric Corpora-
tion v. N.L.R.B., 424 F.2d 1151, 1158 (7th Cir. 1970). Fi-
nally, the Board, in interpreting Section 2(11) has been
instructed that "[i]t is important for the Board not to
construe supervisory status too broadly, for worker who
is deemed a supervisor loses his organizational rights."
McDonnell Douglas Corporation v. N.L.R.B., 106 LRRM
2925, 2928 (9th Cir. 1981). Accord: Westinghouse Electric
Corp. v. N.L.R.B., supra. ("The Board has a duty to em-
ployees to be alert not to construe supervisory status too
broadly because the employee who is deemed a supervi-
sor is denied employee rights which the Act is intended
to protect.")
2. Champion and Benoit
During the time material herein Benoit and Champion
worked in the radiology department diagnostic section
on the day shift. They were classified as supervisors. The
diagnostic section's day shift, besides Champion and
Benoit, employed 10 staff technologists, 2 receptionists, 7
aides, and Cliff Code, a coordinator technologist. The
person in charge during the day was Fred Deneen, the
department manager. Under Deneen in the supervisory
hierarchy was Department Assistant Manager Terry
Krogstad. Deneen and Krogstad spent approximately 50
percent and 70 percent of their time, respectively, during
the day shift in the diagnostic section. It was Deneen and
Krogstad, more particularly Krogstad, who assigned the
work to the technologists employed on the day shift and,
when it was necessary to change an assignment due to an
absence or another reason, Krogstad made the new as-
signment. Deneen and Krogstad are admittedly statutory
supervisors. Respondent contends that Code, Benoit, and
Champion are likewise statutory supervisors.
Respondent does not contend nor is there evidence to
support a contention that either Benoit or Champion,
during the time material herein, possessed the authority
as enumerated in Section 2(11) of the Act to hire, trans-
fer, suspend, lay off, recall, promote, discharge, or to ef-
fectively recommend such action.
In support of its contention that Benoit effectively rec-
ommended that employees be rewarded, Respondent
points to the fact that Benoit filled out an annual per-
formance evaluation form for two of the receptionists
who worked in the department's office. The evaluation
forms were then reviewed by Benoit's supervisors; i.e.,
Deneen and/or Anton. There is no evidence that in any
one of the evaluations performed by Benoit that she
made any recommendations and if she did whether man-
agement adopted or rejected them. Nor is there any evi-
dence that management relied on Benoit's evaluations
without an independent investigation, or whether an
evaluation of Benoit had any effect on employees' em-
ployment status or that they impaired a reasonably ex-
pected employment benefit, or resulted in a reward.
Quite the opposite, as evidenced by the evaluations sub-
mitted by Coordinator Gurr, infra, an inference is war-
ranted that management conducts an independent investi-
" It is undisputed that Champion did not fill out evaluation forms.
624
ST. ALPHONSUS HOSPITAL
gation and does not automatically accept the recommen-
dations set forth in the evaluation. Under the circum-
stances, I am of the opinion that the record does not es-
tablish that Supervisors Champion or Benoit has the au-
thority to effectively recommend that employees be re-
warded.
In support of its contention that Champion and Benoit
were authorized to discipline other employees or to ef-
fectively recommend such action, Respondent points to
Manager Deneen's testimony that at a meeting of the su-
pervisors and coordinators he told them that they had
the right to discipline employees and showed them disci-
plinary action forms and explained how to fill them out.
This testimony was given in response to a leading ques-
tion and was not corroborated by any other witness.
Quite the opposite, Champion, Benoit, and Gurr in effect
denied Deneen ever gave this instruction. Benoit, how-
ever, testified that when she thought one of the persons
who worked in the office needed to be disciplined she
discussed the matter with the person involved and then
made a note of it in the person's personnel file and if she
felt the matter warranted it also made a notation in the
person's annual evaluation. There is no evidence that
Benoit made any kind of a disciplinary recommendation
or if she made such a recommendation whether or not
management accepted or rejected it or conducted an in-
dependent investigation or whether as a result of what
Benoit placed in an employee's personnel file or evalua-
tion that the employee's employment status was effected
or that it impaired a reasonably expected employment
benefit. Under the circumstance the record does not es-
tablish that Benoit or Champion had the authority to dis-
cipline other employees or to effectively recommend
such action.
In support of its contention that Champion and Benoit
were authorized to adjust employees' grievance or to ef-
fectively recommend such action, Respondent points to
its published grievance procedure which states that if
employees have complaints or problems they should use
the Company's grievance procedure and that at the first
step of first procedure the employees should discuss their
complaints with their "immediate supervisor." There is
absolutely no evidence that either Champion or Benoit
or any other individual classified as a supervisor in the
radiology department ever adjusted an employee's griev-
ance pursuant to this or any other procedure, nor was
there any other evidence presented to establish the per-
sons classified as supervisors possessed the authority to
adjust employees' grievances or to effectively recom-
mend how they should be adjusted. It is for these rea-
sons that I find that there is insufficient evidence to es-
tablish that Champion or Benoit was authorized to adjust
employees' grievances or to effectively recommend such
action.
During the time material herein Benoit, besides doing
the work of a staff technologist, worked in the X-ray de-
partment's office where she coordinated the flow of
work between the X-ray department and the other de-
partments of the Hospital. The record establishes that the
work performed by the receptionist and the aides in the
office of the X-ray department was routine work which
required little if any discretion. Benoit performed the
same work as the aide and/or receptionist who worked
with her in the office and, in addition, due to her experi-
ence as a technologist coordinated the flow of work be-
tween the Hospital and the X-ray room. There is no evi-
dence that Benoit responsibly directed or assigned work
to the personnel in the office, or that she engaged in this
conduct using her independent judgment. I recognize
that Benoit at one point testified she supervised the em-
ployees in the office. However when viewed in the con-
text of her entire testimony it is clear that she was refer-
ring to her duties of coordinating the work of the office
with the other areas of the Hospital. There is absolutely
no evidence that in coordinating the work that Benoit
either directed the office employees or assigned them
work.
During the time material herein besides performing the
usual work of a staff technologist, Champion was in
charge of ordering all of the department's supplies and
was the person in charge (PIC) of the department's light-
room one afternoon a week. 2 There is no evidence that
Champion at any time directed or assigned work to
other radiology department technologists or that she di-
rected or assigned work to employees in connection with
the ordering of supplies. Regarding her role as PIC she
coordinated the work of the department. There is no evi-
dence that in doing this she either responsibly directed
employees or assigned work to employees other than
routine work which did not require her to use independ-
ent judgment. Specifically if the Hospital's surgery de-
partment phoned and stated it needed an X-ray technolo-
gist in surgery, Champion paged the X-ray technologist
who had already been designated by Assistant Manager
Krogstad to perform that duty. Also the people in the
radiology department's office transferred phone calls to
the PIC from doctors wtih questions about certain exams
performed by the radiology department. The PIC an-
swered these questions, usually after conferring with the
radiologist. Finally, the PIC places the X-ray request
which came from the office into one of the four baskets
located in te lightroom and one of the aides picks up the
request form and takes the patient into the lightroom, at
which time the PIC tells the aide which X-ray room is
available for the patient to be x-rayed.
In support of its contention that Benoit and Champion
possess the power to responsibly direct and independent-
ly assign work to the employees in their section, Re-
spondent points to the job description maintained by Re-
spondent for the position "supervisory/x-ray technolo-
gist." In pertinent part the job description describes one
of the duties of a person employed in this classification
as that of recommending and assigning for the various
sections in the radiology department, of recommending
the room assignments of the staff technologist on a daily
basis, and of making the necessary adjustments on a day-
to-day basis as is needed. Also, with respect to "supervi-
sory responsibility" said job description states that the
'" Subsequent to the time material herein there was a change in Cham-
pion's duties. Approximately 2 months after Gurr's discharge, Respond-
ent decided to place its supervisors and coordinators in charge of the
weekend shift on a rotating basis.
625
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
supervisory/X-ray technologist "supervises daily routine
operations of an assigned section."
The aforesaid job description is false insofar as it infers
that a person who is classified as a radiology department
supervisor on the day shift has the authority to assign or
recommend the assignment of technologists to the sever-
al X-ray rooms in the department or adjust such assign-
ments. It is undisputed that Department Manager
Deneen and Assistant Manager Krogstad, more particu-
larly Krogstad, make and modify such assignments. And,
insofar as the job description indicates that the supervi-
sory responsibility of the supervisor is limited to "rou-
tine" matters, it fails to comport with the requirements of
Section 2(11) which states that the exercise of the power
enumerated in that section must be more than merely
routine in nature, but requires the use of independent
judgment.
There is no evidence that Benoit or Champion was
ever shown the aforesaid job description. Benoit testified
that in approximately 1977 when she was reclassified
from the position of staff technologist to supervisory
technologist that her duties did not change, that she was
not told that her job duties were changed, and that she
was never shown a copy of a job description. In fact, the
record establishes that when a supervisory technologist
asked to see a copy of the job description for that classi-
fication his request was refused. Specifically, in the fall
of 1979, Mike Gurr, who at the time was classified as a
supervisory technologist, was informed by Manager
Deneen and Assistant Administrator Anton that since
management considered him to be a supervisor that his
union activity must cease. Gurr questioned the assertion
that he was a supervisor and asked to see the job de-
scription for his position. Deneen refused to allow Gurr
to see the description of his job. 13 Finally, the uncontra-
dicted and credible testimony of Benoit and Champion,
supra, demonstrates that in connection with the direction
of other employees or the assigning of work to other em-
ployees their duties were merely of a routine or clerical
nature which did not require the use of independent
judgment.
In support of its claim that Benoit and Champion were
statutory supervisors during the time material herein, Re-
spondent also points to certain secondary indicia: their
classification and designation as supervisors; 4 their at-
tendance at supervisory meetings, in particular a manage-
ment training workshop; the fact that they received more
money than the other staff technologists;"5 the fact that
they either shared an office or desk with a coordinator
whereas other employees had no desk or office of their
own; and the fact that the representatives of Respondent
I" In view of Deneen's refusal to permit Gurr access to his job descnp-
tion, I reject the uncorroborated testimony of Personnel Director Halter
that employees have free access to their job descriptions.
14 I note that in determining whether a person is a statutory supervisor
that "[jlob titles are unimportant." Laborers and Hod Cariers Local No.
341 v. N.LR.B., supra. Accord: Walla Walla Union-Bulletin. Inc. v.
N.LR.B., supra ("The specific job title of the employee is not control-
ling"); Arizona Public Service Company v. NLR.B., 453 F.2d 228, 231, fn.
6 (9th Cir. 1971) (The job title is "irrelevant").
1" It is settled that disparity of compensation cannot be "accorded
litmus paper significance in the absence of solid evidence of the posses-
sion of supervisory responsibility." Oil. Chemical and Atomic Workers v.
N.LR.B., supra.
and the Union, during the representation hearing, stipu-
lated that persons classified as "supervisors" in the radi-
ology department were statutory supervisors. 16 But,
where as here there is no evidence that Benoit or Cham-
pion possesses any one of the several indicia for a super-
visor enumerated in Section 2(11) of the Act, the afore-
said secondary indicia which are not statutory indicators
of statutory authority are insufficient to establish that
Benoit and Champion are supervisors as that term is de-
fined in Section 2(11) of the Act."' Moreover, that Re-
spondent did not intend to give Champion or Benoit any
of the authority enumerated in Section 2(11) when it re-
classified them as supervisors is established by the unden-
ied and credible testimony of technologist Wandro that
Assistant Department Manager Krogstad told her that if
technologists performed any duties over and above the
usual duty of a technologist, such as ordering supplies,
they were classified as supervisors and paid more money.
I also am of the opinion that any inference for the above-
described secondary indicia that Respondent intended
that Champion and Benoit be statutory supervisors is
nullified by the absence of either Champion's or Benoit's
name on the Respondent's list of "management titles."
This is a list of persons and their job titles maintained by
Respondent's personnel department who were consid-
ered to be a part of management. It was intended to be
used by Respondent for, among other things, determin-
ing the supervisory status of persons in National Labor
Relations Board's represenatation proceedings. Although
there are several persons classified as supervisors named
on this list, the names of Champion and Benoit are
absent. 18
Based on the foregoing, I am persuaded that Respond-
ent has not established that either Benoit or Champion
was a supervisor within the meaning of Section 2(11) of
the Act.
3. Gurr
a. Background
Gurr began work for Respondent in May 1976 as a
staff technologist in the radiology department. He
worked from 11:30 p.m. to 7 a.m. and was the only tech-
nologist in that department who worked this shift. Com-
16 Although the representatives of Respondent and Union entered into
this stipulation during the representation hearing, the hearing was thereaf-
ter aborted as the parties entered into an election agreement. There is no
evidence or contention that at the time the parties entered into their elec-
tion agreement that they agreed that the supervisors in the radiology de-
partment were statutory supervisors. I also note that the stipulation, on
its fact, proved too much inasmuch as the basis for the stipulation rested
on the parties' subsidiary stipulation that the radiology supervisors had
the power to hire and fire or to effectively recommend the same, where-
as it is undisputed that the supervisors do not have any such authority.
Clearly this demonstrates the unreliability of the stipulation.
17 Likewise the fact that Respondent, in evaluating the performance of
Champion and Benoit evaluated their "supervisory ability" does not es-
tablish that either one of them was a statutory supervisor whereas here
there is no evidence that they in fact possessed any of the powers enu-
merated in Sec. 2(11) of the Act.
"' Personnel Director Halter testified that the absence of Champion's
and Benoit's names from the list was due to either an oversight or a con-
clusion by personnel that their positions did not meet the requirements of
a supervisor.
626
ST. ALPHONSUS HOSPITAL
mencing in November 1977 the radiology department, at
Gurr's suggestion, instituted a weekend shift wherein
Gurr and another radiology technologist worked 40
hours Friday through Sunday, thereby eliminating the
necessity of having technologists employed during the
week from working weekends every 3 weeks on a rotat-
ing basis. When Gurr commenced working weekends he
was reclassified from a staff technologist to a senior tech-
nologist. Sometime during 1978 the other technologist
ceased working 40 hours a weekend and once again the
other technologists worked weekends on a rotating basis.
Gurr continued to work 40 hours each weekend. Either
in 1978 or 1979 Gurr and the other senior technologists
employed in the radiology department were reclassified
as supervisors. In November 1979 all of the supervisory
technologists in the radiology department except for
Gurr, Champion, and Benoit were reclassified as coor-
dinators, a newly created position. Those reclassified as
coordinators were as follows: Cliff Code, Kathy Hol-
comb, Dan Kaplczynski, and Judy Lawson.
Late in November 1979 or early in December 1979 the
subject of the newly created position of coordinator was
discussed at a staff meeting of the radiology department.
In response to a request by the technologists for a copy
of the job description for the newly created position, De-
partment Manager Deneen stated he did not have a copy
of the job description to give them. When asked to de-
scribe the qualifications a technologist needed to qualify
for a coordinator's position Deneen stated that a tech-
nologist had to have a certain amount of seniority in the
department to qualify for the position, but that the job
duties of the technologists who were promoted to coor-
dinator would not change. Deneen explained to the staff
that the coordinator position was instituted "to create
more steps within the department, so that a staff tech-
nologist could not fill a supervisor technologist position.
It was to create more steps within the department."
During the same period of time, Gurr who was unhappy
about not being promoted to coordinator, complained to
Deneen and Anton about the Respondent's failure to re-
classify him. Deneen informed him that he and Anton
had decided not to make him a coordinator because he
did not supervise the same people every weekend. Gurr
pointed out that Code, who had been promoted to coor-
dinator, did not supervise anyone. Deneen stated that the
reason he had promoted Code to a coordinator's position
was because Code, as the most senior technologist in the
department, was at the top of the pay scale and there
was no other way management could move Code up
salary wise, other than through a coordinator's position.
Gurr indicated that he disagreed with management's de-
cision not to promote him and indicated he felt he should
have been promoted because of his responsiblities and
because of his seniority. Thereafter in late January or
early February 1980, as described supra, after promising
he would support management and not engage in union
activity, Gurr was promoted from supervisor to coordi-
nator with a pay raise of approximately $1 an hour
which accompanied the reclassification.
At the time of the reclassification from supervisor to
coordinator, Holcomb was coordinator of the depart-
ment's ultra sound section which besides Holcomb em-
ployed I technologist; Lawson was the coordinator of
the department's special procedures section which be-
sides herself employed I or 2 technologists; Kapalczynski
was the coordinator of the night shift, 3 to 11:30 p.m.,
which employed 3 to 4 technologists plus a receptionist
and 2 to 3 aides; and Code, according to Deneen's initial
testimony, was the coordinator for the department's di-
agnostic section on the day shift on which 10 staff tech-
nologists, 2 supervisors, 2 receptionists, and 6 or 7 aides
worked. Deneen's later testimony, however, indicates
that during the time material herein Code's responsibil-
ities were limited to the taking of portable X-rays in sur-
gery on the day shift. 9 Deneen testified that Code, be-
sides performing the usual work of a staff technologist in
taking the portable X-rays, "was over those that did
them, when they were doing them. In other words, he
would set up the protocol how they were to be done,
and he did them himself also." Deneen failed to flesh out
the aforesaid testimony. As I have indicated previously,
it is undisputed that Deneen and Assistant Manager
Krogstad were both present in the diagnostic section
during the day shift. The section's work assignments
were normally made by Krogstad and normally he or
Deneen was present to supervise the work of the em-
ployees in that section. The testimony about the work of
the department presented by X-ray technologists
Wandro, Champion, and Benoit, who were employed on
Code's shift, signficantly omits any reference to Code
having any contact with them workwise or otherwise.
Indeed, Champion testified that Code regularly worked
in surgery doing the portable X-rays and performed the
same work which Champion did when she was doing
portables and that one afternoon a week Code worked as
a PIC, as Champion did. In short, Deneen's conclusion-
ary testimony that Code "was over" technologists who
did the portable X-rays in surgery in that he would "set
up the protocol how [the X-rays] were to be done" was
not elaborated on nor was it corroborated by any other
witness and it was substantially contradicted by the
credible testimony of Champion and Gurr. 20 Any doubt
that Code did not supervise any other employees in any
sense of that term-statutory or otherwise-is removed
by Deneen's admission to Gurr, described supra, that
Code did not supervise anyone but had nevertheless been
promoted to the position of coordinator because, as the
most senior technologist in the department, he was at the
top of the pay scale for his classification, so the only
way that management could give him more money was
by reclassifying him as a coordinator. I find that Code,
during the time material herein, was not a supervisor as
that term is defined in Section 2(11) of the Act.
At the time Gurr was reclassified to the position of co-
ordinator he was working the weekend shift; namely,
Friday from 3:30 to 11:30 p.m.; Saturday, 7 a.m. to 11:30
p.m.; and Sunday, 7 a.m. to 11:30 p.m. Gurr's Friday
'9 Thereafter, well after Gurr's termination, Code was apparently given
additional responsibilities which are not material to the Decision herein.
'O In corroboration of Champion's aforesaid testimony. Gurr testified
that Code was the most senior technologist in the department who had
the most experience in performing portable X-rays of the kind done in
surgery and spent virtually all of his time doing this work although on
occasion he performed X-ray exams in the diagnostic section.
627
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work shift coincided with the evening shift, thus there
were the same number of persons working at that time
who were usually employed on the evening shift, includ-
ing Evening Shift Coordinator Kapalcyznski. 21 On Satur-
day, approximately three to four technologists worked 8
hours during the day plus the technologists who normal-
ly worked from 7 p.m. to 7 a.m. Also, two to three aides
and one receptionist worked during part of Gurr's Satur-
day shift. On Sunday, one technologist besides Gurr
worked 8 hours during the day and another one came in
from 7:30 p.m. to 7:30 a.m. Also, one receptionist and
one or two aides worked during a part of this shift. The
technologists who worked during the days with Gurr on
Saturday and Sunday were regularly assigned to either
the day shift or the evening shift, but every 4 weeks ro-
tated for weekend work. 2 The aides and receptionists
were regularly assigned to the weekend shift.
b. Gurr's authority to assign or responsibly direct
employees using independent judgment rather than
acting in a routine or clerical manner
The X-ray technologists employed in the diagnostic
section of the radiology department performed various
types of X-ray examinations of patients. They are highly
skilled workers who, as Department Manager Deneen
testified, know what is expected of them and do it with-
out supervision.
The receptionist employed in the X-ray department re-
ceives the patients, schedules the timing of the exams,
prepares the paperwork connected with the X-rays, per-
forms the typing and filing connected with said paper-
work, and answers the department's telephone. The
record establishes that this work is of a routine and cleri-
cal nature which requires no supervision. The weekend
shift receptionist, Dolores Brawley, testified that she
needed no supervision because she knew what to do, that
Gurr did not direct her work, and that her contacts with
Gurr during working time were minimal. If there were
questions about the treatment of patients, Brawley testi-
fied, she consulted with Gurr or if she could not locate a
patient's X-ray, which happened once a month, she in-
formed Gurr who had one of the aides try to locate it.
The aides in the diagnostic section of the radiology de-
partment transport those patients who are immobile, to
and from the X-ray rooms. Their work is of a routine
nature and they normally perform it without any direc-
tion or assignment. Carol Brannon, the weekend shift
aide, testified she was just as likely to be asked by one of
the other technologists in the department to assist with a
patient as by Gurr.
Gurr testified that he spend 90 percent of his working
time doing the same work as the other technologists who
worked with him. The other 10 percent of his time, he
testified, was spent in coordinating the staff so as to ex-
pedite the flow of patients in and out of the diagnostic
section; i.e., answering questions about the order in
which the patients should be x-rayed and whether the
2' On Friday, if Kapalcyznski or any of the other technologists from
the evening shift were scheduled to work Saturday and/or Sunday, they
did not work Friday night.
2" Coordinators Code and Kapalcyznski rotated working weekends
with the other staff technologists.
department was equipped to perform certain kinds of X-
ray examinations. Gurr testified he did not assign the
persons assigned to work weekends to do any particular
work or to come to work or to work weekends or to do
additional work, but that "it was a cooperative thing"
and that Gurr worked alongside of everyone else. Gurr's
testimony in this respect is corroborated by weekend
aide Carol Brannon who in effect testified that she did
not feel anyone was in charge during the weekends, but
that the persons employed weekends "were very much
like a little family [with] everyone just pretty much help-
ing each other."
If the testimony of the General Counsel's witnesses
which has been set forth above is credited, it is plain that
Gurr as the coordinator on the weekend shift, did not
asign or direct the work of the employees as those terms
are defined in Section 2(11) of the Act. 2 Respondent
failed to call one witness to controvert the aforesaid de-
scription of the operation of the weekend shift during
Gurr's tenure. Although Respondent called Evening
Shift Coordinator Kapalczynski as a witness he was not
asked to testify about the manner in which the weekend
shift operated despite the fact that over the period of 3
years in which Gurr was responsible for that shift Ka-
palczynski worked on that shift on numerous occasions. I
can only presume that his testimony would have cor-
roborated the testimony of Gurr and the other employ-
ees who testified on behalf of the General Counsel.
It is for the foregoing reasons that I find that Respond-
ent has failed to establish that Gurr exercised the author-
ity to assign or direct, as those terms are defined in Sec-
tion 2(11) of the Act.
c. Gurr's authority to reward employees or effectively
to recommend such action
It is undisputed that Gurr has no authority to grant
employees wage increases and the record establishes that
on each occasion when Gurr recommended that an em-
ployee be granted a pay raise his recommendation was
rejected. Eventually he ws informed by Manager Deneen
that management did not want his input regarding pay
raises because management would decide who was going
to get a pay raise and who was not going to get one.
Specifically, on November 17, 1979, Gurr recommend-
ed that student technologist Shigihara receive a pay raise
due to his outstanding work; on May 11, 1978, recom-
mended that receptionist Brawley receive a merit pay
raise for her outstanding work; and on December 2,
1979, recommended that aide Brannon receive a pay
raise due to her excellent work. Each of these recom-
mendations were rejected. 24 In fact, after Brannon appar-
:3 The General Counsel's witnesses, in particular Gurr, impressed me
as credible witnesses demeanorwise.
" This conclusion is based on Respondent's payroll records for the
aforesaid employees and the credible testimony of Brannon and Brawley.
I have rejected Deneen's testimony that Brawley received the pay raise
recommended by Gurr. This testimony was contradicted by Brawley's
and Gurr's testimony and Brawley's payroll records. I note that generally
speaking Deneen, in terms of his demeanor, impressed me as an insincere
witness who seemed to be more interested in bolstering Respondent's po-
sition than in the truth.
628
ST. ALPHONSUS HOSPITAL
ently complained to Deneen about her failure to receive
the pay raise which Gurr had recommended, Deneen
told Gurr that he should not recommend pay raises for
the employees because it raised false hopes for the em-
ployees and that management did not want Gurr's rec-
ommendations regarding pay raises because other man-
agement personnel would decide which employees
would and would not receive pay raises.
e. Gurr's authority to transfer, suspend, lay off recall,
promote, or discharge employees or effectively to
recommend such actions
There is no evidence in the record that Gurr had any
of the above-described authority.
f. Gurr's authority to discipline employees or effectively
to recommend such action
Deneen testified that at a meeting attended by supervi-
sors and coordinators he told them that they had the
right to discipline employees, showed them the disciplin-
ary action forms, and explained how these forms were to
be filled out. This testimony which was given in the
form of a "yes" answer to a leading question was uncor-
roborated. Gurr and Champion specifically denied that
any such instruction was given. I credit their testimony
because Deneen, in terms of his demeanor impressed me
as an incredible witness, whereas Gurr and Champion
impressed me as honest witnesses.
Deneen also testified that in approximately May 1979
Gurr complained to Deneen that an employee on the
weekend shift went home early. Deneen testified he told
Gurr that since Gurr was "the coordinator in charge he
should have written up a disciplinary action form on the
employee" and showed Gurr how to write up such a
form. Gurr's version of what occurred differs. Gurr testi-
fied he told Deneen that an employee who worked
weekends had refused to do something which Gurr had
asked him to do. Gurr asked what he could do about it.
Deneen advised Gurr to send the person home and that
Deneen would dispose of the matter. Gurr stated that he
was uncomfortable doing this and asked Deneen if there
were a company regulation he could refer the employee
to when he issued this instruction. Deneen told Gurr not
to worry about the matter and that he, Deneen, would
handle the matter if Gurr sent the person home.' Since
Gurr, in terms of his demeanor, impressed me as the
more credible witness, I credit his version of the afore-
said conversation.
Gurr's uncontradicted testimony is that during the
entire period of time that he was in charge of the week-
end shift as either senior technologist, supervisor, or co-
ordinator he never disciplined an employee or recom-
mended that an employee be disciplined and, in fact,
does not even know what a disciplinary action form
looks like.
Based on the foregoing, I find that Respondent has
failed to establish that Gurr exercised the authority to
discipline employees or effectively recommended such
action. I am not persuaded that, because Gurr once re-
ported an employee's misconduct to Deneen and was
u Gurr never sent the person home.
told to send that particular employee home, it warrants
the inference that he possessed the authority to discipline
employees inasmuch as this was an isolated episode.
Moreover, Deneen made it clear that he, Deneen, would
dispose of the problem, thereby suggesting that it was
Deneen rather than Gurr who would discipline the em-
ployee. 26 Also the fact that Gurr was never even shown
the disciplinary action forms used by Respondent to dis-
cipline employees indicates that Respondent did not
intend that he exercise this authority or effectively rec-
ommend employees' discipline.
g. Gurr's authority to adjust employees' grievances or
to effectively recommend such action
Respondent's grievance procedure published in its em-
ployees' personnel policies handbook states that, in perti-
nent part, an employee should discuss his complaint with
his or her immediate supervisor and if this fails to pro-
vide a satisfctory answer should discuss it with the divi-
sion director. Deneen testified that each of Respondent's
coordinators are a part of the first step of the Company's
grievance procedure. There is no evidence that Gurr at
any time adjsuted an employee's grievance or effectively
recommended such action either pursuant to the Compa-
ny's grievance procedure or otherwise. Other than Den-
een's conclusionary testimony set forth above, Respond-
ent presented no other testimony on this matter. The ra-
diology department's evening shift coordinator, Kapalc-
zynski, a witness for Respondent, failed to corroborate
Deneen's testimony. In addition, Deneen, who in terms
of his demeanor impressed me as an insincere witness,
failed to explain why if the coordinators had the authori-
ty to adjust grievances that their position description
failed to mention it.
Based on the foregoing, I find that Respondent has
failed to establish that Gurr possessed the authority to
adjust employees' grievances or to effectively recom-
mend such action,
h. Ultimate conclusion as to whether Gurr possessed
any of the statutory authority setforth in Section 2(11)
of the Act
As I have found supra, while employed by Respondent
as senior technologist, supervisor, and coordinator in
charge of the weekend shift, Gurr did not in fact exer-
cise any of the indicia of statutory authority enumerated
in Section 2(11) of the Act. This does not end the matter
because the question is whether Gurr possessed such au-
thority. Respondent urges that Gurr possessed such au-
thority but chose not to exercise it. In support of this
contention, Respondent points to its job description for
the position of coordinator and also argues that all of the
other coordinators in the department are statutory super-
visors.
The position of coordinator was created by Respond-
ent in November 1979 during the midst of the Union's
'The reporting of employee misconduct is a matter of monitoring
rather than a manifestation of supervisory authority. Greyhound Airport
Services Inc. and Greyhound Airport Services Inc. of Virginia, 189 NLRB
291, 293-294 (1971).
629
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
organizational campaign. The job description for this po-
sition, which is dated October 30, 1979, states that a co-
ordinator will devote 25 percent of his or her working
time to "supervision" and in pertinent part describes a
coordinator's duties as follows:
Under the clinical direction of a radiologist and the
administrative direction of the Assistant Manager of
Radiology coordinates the day-to-day operations
and services a section of Radiology.
Supervises the work of the technologist and an-
cillary personnel assigned within the section.
Recommends salary increases and performance
appraisals.
Recommends disciplinary action and termina-
tions.
Trains personnel in operations of section.
Recommends scheduling of personnel.
Interprets departmental and hospital rules and
regulations where applicable to personnel in their
section.
Insures a safe working environment and enforces
safety regulations in their section.
Coordinates the clinical functions of a section
through the Assistant Manager.
Insures that the section is adequately stocked,
equipment is operatable, and that all required sup-
plies are available for the daily operations.
Issues work orders for repairs through pre-
scribed procedures.
Coordinates scheduling of patients and prepa-
ration of room.
Insures quality of exams meet the requirements
of radiologist and department.
Participates in the formal teaching programs and in-
service educational classes as required.
Performs exams and procedures on daily basis or as
required to insure service meets the demands.
I am of the opinion that in the circumstances of this
case the job description for the position of coordinator
constituted "no more than naked designations of paper
power." Oil, Chemical and Atomic Workers International
Union, AFL-CIO v. N.L.R.B., supra. As the court in the
Oil, Chemical and Atomic Workers International Union
case stated (445 F.2d at 243), "We agree that, beyond the
statements or directives themselves, what the statute re-
quires is evidence of actual supervisory authority visibly
translated into tangible examples demonstrating the exist-
ence of such authority." In N.L.R.B. v. Security Guard
Service, Inc., 384 F.2d 143, 149 (5th Cir. 1967), the court
succinctly stated the essential point:
What is amiss with this argument which is based on
paper credentials is that there is lack of actual au-
thority to match. The concept of supervision has
some elasticity, but it must have substance and not
be evanescent .... A supervisor may have poten-
tial powers, but theoretical or paper power will not
suffice. Tables of organization and job descriptions
do not vest power ....
In the instant case Respondent created the position of
coordinator for the radiology department and reclassified
certain of its supervisors in that department to this posi-
tion in the midst of a union's organizational campaign
when such reclassification "are often addressed as much
to the Board as they are to company's pensonnel." Oil,
Chemical and Atomic Workers International Union AFL-
CIO v. N.L.R.B., supra. There is no evidence that the
job description was ever shown to the employees in-
volved and on the one occasion when the technologists
asked to see a copy of the job description Department
Manager Deneen stated he did not have a copy.2 7 But
more significant is that Deneen at the time the coordina-
tor classification was initiated informed the staff of the
radiology department that the job duties of the technolo-
gists who were to be reclassified as coordinators would
remain the same and that the reason Respondent created
the position of coordinator was to create a means to in-
crease the wages of the department's senior employees
who were at the top of their pay classification. Likewise
Deneen, as described above, admitted to Gurr that the
sole reason that Code was reclassified from supervisor to
coordinator was not because he was going to be assigned
additional responsibilities, but because it was the only
way in which Respondent could increase Code's salary
as he was at the top of the pay scale for the position of
supervisor. Deneen's aforesaid explanations of why Re-
spondent created the new position of coordinator and
Respondent's reason for reclassifying Code to this posi-
tion warrant the inference that the description of the job
duties of a coordinator set forth in the job description
are unreliable and constitute "no more than naked desig-
nations of paper power."
The record does not establish that this is a situation
where all of Respondent's coordinators possessed the
same inherent powers and responsibilities which would
make them supervisors within the meaning of Section
2(11) of the Act, and that Gurr simply did not have the
occasion to exercise these powers or chose not to do so.
First, it is highly improbable that in the approximately 2-
1/2 years in which Gurr was in charge of the weekend
shift that Gurr would not have exercised at least one of
the statutory powers set forth in Section 2(11) of the Act
if he had been in fact authorized to exercise any one of
such powers. Nonetheless, other than Deneen's testimo-
ny which for the most part was made up of glittering
generalities couched in conclusionary language, the
record contains no evidence which establishes that Gurr
ever exercised on any occasion one of the statutory
powers which would make him a statutory supervisor.
Moreover, the record does not establish that all of the
other supervisors who were promoted to coordinator
were statutory supervisors. Quite the opposite, the
record establishes, as I have found supra, that Coordina-
tor Code was not a statutory supervisor at any time ma-
"' Respondent's personnel director, Halter, testified he had no personal
knowledge whether or not copies of the job description were ever dis-
tributed to the coordinators.
630
ST. ALPHONSUS HOSPITAL
terial to this case. Under these circumstances the fact
that one or more of the other coordinators may have
been statutory supervisors does not warrant a finding
that Gurr must have been one also.
Based on the foregoing, I am of the opinion that while
numerous conclusionary allegations have been made by
Respondent through the testimony of Deneen and the
coordinator's printed job description attributing supervi-
sory status to Gurr, the total lack of evidence of the ex-
ercise of such authority, in the circumstances of this
case, negates its existence. I find that Respondent has
failed to establish that Gurr possessed any of the indicia
of statutory authority enumerated in Section 2(11) of the
Act.
i. Secondary indicia of statutory authority
1. Gurr's evaluation of employees
The record reveals that for the approximately 2-1/2
years when Gurr was in charge of the weekend shift as
senior technologist, supervisor, and coordinator he evalu-
ated those employees who worked on a regular basis: the
aides, the receptionist, and a student technologist. The
record also establishes that, after discussing the evalua-
tion with the employee who was being evaluated, Gurr
gave the evaluation to the department manager. The de-
partment manager reviewed it and then give it to the as-
sistant administrator who reviewed it, and it was thereaf-
ter reviewed by the personnel director. The sole evi-
dence in the record that Gurr's evaluations had an
impact upon the employees' employment status is Den-
een's testimony that he could not think of any of the rec-
ommendations made by Gurr in these evaluations which
were overruled. The record as a whole refutes Deneen's
testimony. The only recommendations made by Gurr in
these evaluations were as follows: In two instances he
recommended probationary employees should be contin-
ued as regular employees and on three occasions recom-
mended employees be given merit wage increases for
their work performance. As I have found supra, Gurr's
recommendations regarding the wage increases were re-
jected each time and he was told that management was
not interested in whether or not he thought an employee
deserved a merit wage increase. In the case of the two
probationary employees there is no evidence whether
management relied on his evaluation or conducted an in-
dependent investigation before deciding whether to
retain them as regular employees. From management's
treatment of Gurr's wage increase recommendations it is
a fair inference that management conducted its own in-
vestigation before deciding whether or not to retain the
employees as regular employees.
In short, there is no evidence that as the result of
Gurr's evaluations that an employee's employment status
was either adversely or beneficially affected. The fact
that Gurr evaluates employees does not necessarily mean
that he possesses the requisite authority of a statutory su-
pervisor is demonstrated by the fact that Supervisor
Champion, who evaluates employees' work perfor-
mances, and Coordinator Code, who also evaluates em-
ployees' work performances, 28 are not, as I have found
supra, supervisors within the meaning of the Act. Under
these circumstances, I am not persuaded that the fact
that Gurr evaluates employees' work performances by
itself or in conjunction with the other record evidence
herein warrants the inference that he was a statutory su-
pervisor.
2. Miscellaneous
When there is not enough staff present weekends
either because of an unexpected increase in patients or if
someone fails to come to work as scheduled, there is a
list of employees on call who are called in to work. Gurr
is normally the person who contacts the on-call employ-
ees and asks them to come to work. If Gurr is unavail-
able, i.e., working in surgery, one of the other technolo-
gists on the shift takes it upon themself to contact the on-
call person in these situations. Only on those rare occa-
sions when the on-call persons were not available did
Gurr contact other persons and ask them if they desired
to come to work to help out.
The Hospital has no set policy with respect to employ-
ees' lunch breaks. During the weekend shift Gurr's
policy was that employees could take their lunch breaks
whenever the flow of patients enabled them to do so.
Gurr earned between 20 percent and 22 percent more
than the other staff technologists.2 He attended supervi-
sory meetings with the other supervisors and coordina-
tors including a management training workshop. Howev-
er, Coordinator Code, who earns the same amount of
money, is not a statutory supervisor and Code and Su-
pervisors Champion and Benoit who are also not statu-
tory supervisors attended the same or similar supervisory
meetings.
Gurr, like Respondent's other coordinators and super-
visors, either shares an office or desk with another super-
visor or coordinator. But, as I have found supra, some of
the supervisors and coordinators are not statutory super-
visors.
Gurr is responsible for the operation of the weekend
shift. He is recognized by management, by himself, and
by most of the employees as being in charge of the
weekend shift, and if he is not a statutory supervisor the
employees who worked on this shift would have been
without a statutory supervisor.
Deneen testified that employees work overtime and do
so with the approval of the coordinators. There is no
evidence that Gurr ever authorized anyone to work
overtime nor was there any evidence presented that this
duty requires the exercise of independent judgment char-
acteristic of statutory supervisory status.
During the representation hearing the representatives
of Respondent and the Union stipulated that all of the
persons classified as coordinators in the radiology depart-
2" Deneen testified that all of the Respondent's coordinators, as part of
their job, complete performance evaluations for the employees they su-
pervise.
2 It is settled that disparity of compensation cannot be "accorded
litmus paper significance in the absence of solid evidence of the posses-
sion of supervisory responsibility." Oil. Chemical and Atomic Workers v
N.LR. B.. supra.
631
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment were statutory supervisors. The proceedings con-
nected with this hearing were aborted when the parties
entered into an election agreement and there is no evi-
dence or contention that, in connection with the election
agreement, the parties agreed that the coordinators in the
radiology department were statutory supervisors or oth-
erwise excluded them from the voting unit. I also note
that, even though the stipulation rested on the parties
subsidiary stipulation, the radiology department's coor-
dinators had the power to hire and fire or to effectively
recommend the same, there is no evidence or contention
herein that Gurr had the power to fire and the evidence
overwhelmingly establishes he had no involvement what-
soever in the hiring process, and the one time that he did
venture to make a recommendation in that area, it was
rejected.
In annually evaluating the performances of the radiol-
ogy department's employees classified as "supervisors"
and "coordinators," Respondent evaluated, among other
things, their "supervisory ability." There is no indication
on the face of the evaluation forms that the supervisory
abilities being evaluated met the statutory requirements
of Section 2(11) and, as I have found supra, Supervisors
Champion and Benoit and Coordinator Code who, like
Gurr, were evaluated for their "supervisory ability"
were not statutory supervisors.
3. Ultimate conclusions regarding secondary indicia
In concluding, supra, that Gurr did not possess any of
the authority set forth in Section 2(11) of the Act I have
considered the several miscellaneous secondary indicia,
set forth supra, and am persuaded that whether viewed
separately or together they are insufficient to support a
finding of supervisory status within the meaning of Sec-
tion 2(11) where, as here, there is no evidence that Gurr
possessed at least one of the supervisory powers enumer-
ated in Section 2(11). Under this circumstance to base a
finding of supervisory status on secondary indicia would
be contrary to the statute because, as the courts, with the
Board's approval have instructed me, "[i]t is important
for the Board not to construe supervisory status too
broadly, for a worker who is deemed a supervisor loses
his organizational rights." McDonnell Douglas Corp. v.
N.L.R.B., 582 F.2d 1289 (9th Cir. 1981). Accord: Wes-
tinghouse Electric Corporation v. N.L.R.B., 424 F.2d 1151,
1158 (7th Cir. 1970) ("The Board has a duty to employ-
ees to be alert not to construe supervisory status too
broadly because the employee who is deemed a supervi-
sor is denied employee rights which the Act is intended
to protect.") I realize that I am holding that Gurr is not
a statutory supervisor even though he is admittedly re-
sponsible for and in charge of the operation of the week-
end shift of the diagnostic section of Respondent's X-ray
department and there is no statutory supervisor present
in that section during that shift. However, the absence of
a statutory supervisor during Gurr's shift, while relevant
to a determination of his status, is not conclusive, and is
overcome in this case by the clear evidence that his au-
thority was strictly of a routine nature, that the section
whch was extremely dimished in size during the week-
end essentially ran itself during the weekend. See, e.g.,
Oil, Chemical and Atomic Workers International Union,
AFL-CIO v. N.LR.B., supra (Senior operators who did
not exercise independent judgment not found to be statu-
tory supervisors even though they were often on duty
with no supervisor over them); Beth Israel Medical
Center, 229 NLRB 295, 296 (1977) (found the night crew
housekeeping supervisor not a statutory supervisor even
though he was the only supervisor on duty from 11 p.m.
until 7:30 a.m. Sunday through Thursday in charge of a
crew of 48 employees); N.LR.B. v. Monroe Tube Co.,
545 F.2d 1320 (2d Cir. 1976) (found night foreman not a
statutory supervisor even though frequently no one of
higher authority in the plant during that shift). As I have
described in detail supra, it is undisputed that Gurr spend
90 percent of his worktime performing the identical
work as the other rank-and-file workers employed on the
weekend shift. The weekend shift employed only a maxi-
mum of four technologists, three aides, and one recep-
tionist and at times during the weekend there was sub-
stantially fewer workers. Since the technologists were
regularly employed on the weekday shifts and only
worked weekends on a rotating basis, there were only
approximately four employees who regularly worked the
weekend shift; the three aides and one receptionist. s In-
asmuch as the technologists were highly skilled workers
and the aides and receptionists performed unskilled work
of a routine nature, the employees on the weekend shift
performed their work without the type of supervision
which Section 2(11) of the Act contemplates and Gurr
spent the majority of the 10 percent of his worktime that
he was not doing technologists' work coordinating the
flow of patients; i.e., answering questions pertaining to
the scheduling and treatment of patients. Thus, it is not
surprising that when Gurr took his vacation in 1979 the
person who management left in charge of the weekend
shift in Gurr's place was a student technologist who had
only recently finished training, rather than one of its
more experienced technologists or supervisory technolo-
gists. Moreover, as I have found supra, for approximately
the first 2 months after Gurr's termination, Respondent
failed to assign a supervisor or coordinator to the week-
end shift.
It is for all of the foregoing reasons that I find that the
record, as a whole, does not establish that Gurr was a
supervisor within the meaning of Section 2(11) of the
Act.
C. Respondent Informs its Supervisors and
Coordinators Employed in the Radiology Department
that It Intended To Discharge Gurr for Voting in the
Union Representation Election
As described in detail supra, between July 10 and
August 10, 1980, Radiology Department Manager
Deneen, at a meeting attended by Assistant Manager
Krogstad, Supervisors Champion and Benoit, and Coor-
dinators Code and Lawson, stated that Respondent in-
tended to discharge Coordinators Kapalcyznski and Gurr
0 As described supra, it was for this reason that Respondent initially
told Gurr that it did not feel the weekend shift warranted a coordinator
and it was only after Gurr's objection that he was reclassified as a coor-
dinator 2 months after the other technologists had been reclassified to
that position.
632
ST. ALPHONSUS HOSPITAL
because they had voted in the union representation elec-
tion despite the fact that they were told by management
that as supervisors they were not eligible to vote. The
complaint alleges that by Deneen's aforesaid statement
Respondent violated Section 8(a)(l) of the Act. I agree.
The right of an employee to vote in a union represen-
tation election conducted by the Board is a right sanc-
tioned by Section 7 of the Act. A statement by manage-
ment to employees that another employee will be dis-
charged because he or she voted in a union representa-
tion election obviously has a tendency to interfere with
the free exercise of the employees' statutory right to
vote. I recognize that, at all times herein, Respondent
was taking the position that the persons employed in its
radiology department who were classified as supervisors
and coordinators were statutory supervisors, and that
Respondent believed that its position was correct. But, I
have found supra that Champion, Benoit, Code, and
Gurr were not statutory supervisors, but instead were
employees entitled to the protection of Section 7 of the
Act. Their rights under the Act were not subject to de-
feasance merely because Respondent mistakenly believed
that they were statutory supervisors. (See N.L.R.B. v.
Puerto Rico Rayon Mills, Inc., 293 F.2d 941, 945-946 (Ist
Cir. 1961.) s ' For, "it is too well settled to brook dispute
that the test of interference, restraint, and coercion under
Section 8(a)(1) of the Act does not depend on an em-
ployer's motive .... [r]ather, the illegality of an em-
ployer's conduct is determined by whether the conduct
may reasonably be said to have a tendency to interfere
with the free exercise of employee rights under the Act."
El Rancho Market, 235 NLRB 468, 469 (1978), and cases
cited therein.
It is for the foregoing reason that I find that as alleged
in the complaint Respondent violated Section 8(a)(l) by
telling employees that it intended to discharge another
employee because he had voted in a union representation
election conducted by the Board.
D. Respondent Changes Gurr's Work Schedule
I am of the opinion that the General Counsel has made
a prima facie showing that Respondent changed Gurr's
work schedule on approximately September 16, 1980, be-
cause it was angered by his union activities and the fact
that he voted in the union representation election and be-
lieved that he had disregarded Respondent's instruction
to cease those activities. In reaching this conclusion I
considered the following circumstances in their totality.
In August 1979 when Respondent learned that Gurr
was an organizer for the Union, the manager of Gurr's
department, Fred Deneen, warned him that his job
would be in jeopardy if he did not cease his union activi-
ties because management considered him to be a supervi-
sor. Gurr indicated he did not believe he was a supervi-
sor, but shortly thereafter advised Deneen he would
cease his union activities as Deneen had requested. But
Deneen did not believe Gurr, for in January 1980
Deneen told Gurr that the reason Gurr was not promot-
ed to the newly created position of coordinator was that
S' Accord: N.LR.B. v. Cast-A-Stone Products Co, 479 F.2d 396, 397
(4th Cir. 1973); Answengn Inc., 215 NLRB 688, 689 (1974).
Deneen and Deneen's superior, Assistant Administrator
Anton, still thought Gurr was involved with the Union
because he had been seen talking with union sympathiz-
ers and Gurr's wife was seen distributing union litera-
ture. When Gurr denied he was still supporting the
Union, he was promoted at this time to the position of
coordinator. Thereafter, in May 1980, on his own time,
Gurr attended the representation hearing connected with
the Union's petition for a representation election where
he was seen by management, and on July 10, 1980, in
violation of Respondent's instruction that persons classi-
fied as supervisors and coordinators were not eligible to
vote in the union representation election, Gurr voted in
the election. The undenied and credible testimony of ra-
diologist James Mack establishes that at this point in time
Deneen still believed that Gurr was engaging in proun-
ion activities. Mack testified that sometime during the
period between June 22 and July 12, 1980, Deneen in-
formed him that since Gurr was a supervisor or an ad-
ministrator Gurr should not talk about the Union or be
"as actively involved in union activity as he was, "and
indicated to Mack that he thought Gurr's family was
also involved in activity on behalf of the Union. After
the July 10, 1980, union representation election Deneen
also informed Mack that Deneen thought Gurr had "in-
fluenced" Coordinator Kapalczynski to vote in the elec-
tion.
It is undisputed that on July 10, 1980, Deneen became
angry when he learned Gurr had voted in the union rep-
resentation election held that day and, with the concur-
rence of Assistant Administrator Anton, decided to dis-
charge him for voting in the election. Respondent's
lawyer persuaded Deneen and Anton to let the matter
rest for I month so as to allow a cooling off period.
During the 1-month cooling off period Deneen did not
change his mind about discharging Gurr, as is evidenced
by his statement made during this period to several of
the supervisors and coordinators in the department that
he intended to fire Gurr for voting in the union election.
At the end of the cooling off period, on approximately
August 10, 1980, Respondent's lawyer recommended that
Deneen and Anton not carry out their decision to fire
Gurr because such a discharge would subject Respond-
ent to litigation and hurt the morale of the other employ-
ees. Deneen and Anton accepted this recommendation,
but approximately I month later Deneen changed Gurr's
work schedule from the weekend shift to the weekday
day shift. Deneen knew that such a change of work
schedule would seriously inconvenience Gurr, who oper-
ated his own business during the weekdays.
Shortly after Deneen told Gurr about the change in
his work schedule, Deneen admitted to several of the su-
pervisors in Gurr's department that in changing Gurr's
work schedule Respondent's intent was to punish Gurr
on "account of the union," but that they should tell the
rest of the staff that the reason for Gurr's reassignment
from the weekend shift to the weekday day shift was
that the patient load on weekends was decreasing where-
as it was increasing during the weekdays.
The record, as summarized above, establishes that
Gurr was one of the organizers of the Union's campaign
633
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to organize Respondent's employees. Respondent was
hostile towards Gurr because of his union acitivities,
threatened to discharge him if he continued to support
the Union, and thereafter refused to believe that Gurr
had discontinued his union activities. It was in this con-
text that Respondent, upon learning that Gurr had voted
in the union representation election, immediately decided
to discharge him, but did not implement this decision
when its attorney recommended against it. Instead Re-
spondent, shortly thereafter, changed Gurr's work sched-
ule from the weekend shift to the weekday day shift
knowing that such a change would cause a significant
hardship to Gurr because he operated his own business
during the week. Respondent, in explaining the reason to
the supervisors in Gurr's department for its decision to
change Gurr's workshift admitted to them that the
change was not prompted by any legitimate business
considerations, but by a desire to punish Gurr on ac-
count of his union activities. These circumstances,
viewed in their totality, make out a prima facie showing
that Respondent changed Gurr's work schedule because
it was angered by its union activities and thought he had
disregarded its instruction to cease these activities or, at
the very least, because Gurr had voted in the union rep-
resentation election. 3 2
Having concluded supra that the General Counsel has
made a prima facie showing that Gurr's protected con-
duct was a motivating factor in Respondent's decision to
change his work schedule, I shall evaluate Respondent's
reasons for changing his work schedule. In doing so I
have used the Board's Wright Line analysis wherein
"once [a prima facie showing] is established, the burden
will shift to the employer to demonstrate that the same
action would have taken place even in the absence of the
protected conduct." Wright Line, a Division of Wright
Line, Inc., 251 NLRB 1083, 1089 (1980).33
It is undisputed that the reason given Gurr by Depart-
ment Manager Deneen for Gurr's reassignment from the
weekend to the weekday day shift was that the Hospital
needed Gurr to work the weekday day shift because
there was a "staffing need" in the radiology department
on that shift. This was consistent with Deneen's instruc-
tion to the department's supervisors that they should tell
the staff that Gurr was reassigned because the patient
load on the weekday day shifts was increasing. It was
11 I realize Respondent did not discriminate against Coordinator Ka-
palczynski who, with Gurr, voted in the election and who Respondent
had also decided to discharge for voting. This does not detract from the
conclusion that Respondent discriminated against Gurr, for the law is set-
tled that the failure to discriminate against all persons who engage in ac-
tivity protected by the Act does not negate evidence of discriminatory
motive. See NL.R.B. v. Challenge-Cook Brothers of Ohio, Inc., 374 F.2d
147, 152 (6th Cir. 1967); N.L.R.B. v. Puerto Rico Telephone Company, 357
F.2d 919, 920 (Ist Cir. 1966); Nachman Corp. v. N.LR.B., 337 F.2d 421,
424 (7th Cir. 1964); N.L.R.B. v. W C Nabors, d/b/a W. C. Nabors Com-
pany, 196 F.2d 272, 276 (5th Cir. 1952). This principle is especially appli-
cable in the instant case because Respondent, at all times material, be-
lieved Gurr was a leading union adherent and believed he was the person
who persuaded Kapalczynski to vote in the union election Other than
casting his ballot in the election Kapalczynski engaged in no activity pro-
tected by the Act, including union activity, nor is there evidence Re-
spondent thought he was a union supporter.
3" The burden referred to is merely the burden of going forward to
meet a prima facie case, not the burden of persuasion on the ultimate issue
of the existence of a violation.
also consistent with the testimony of Deneen's immediate
superior, Assistant Administrator Anton, that Gurr's
reassignment was the result of a staffing study which
showed that more "manpower" was needed during the
weekdays and not much "manpower" was needed during
the weekends. In short, Respondent ostensibly reassigned
Gurr to the weekday day shift because it needed another
technologist on that shift. But, it is undisputed that when
Gurr was terminated another technologist was not hired
or tranferred to fill Gurr's position on the weekday day
shift. This unexplained omission refutes Anton's testimo-
ny that Respondent needed more manpower on the day
shift.3 4 The inference that Respondent did not need more
manpower on the day shift at the time of Gurr's reas-
signment is warranted not only by Respondent's failure
to fill the vacant position on the day shift left by Gurr's
termination, but also by the fact that, with the elimina-
tion of Gur's position on the weekend shift, it has meant
that the staff on the day shift now worked weekends
every 3 rather than 4 weeks, leaving even less manpower
available on the day shift than prior to Gurr's reassign-
ment. Despite this, the position Gurr was reassigned to
on days still has not been filled. It is for all of the forego-
ing reasons, including my feeling that Deneen and
Anton, in terms of demeanor, were not credible wit-
nesses, that I find that Respondent's contention that it
reassigned Gurr to the day shift because it needed more
manpower on that shift is a fabrication, entirely without
substance.
Deneen testified that there was a second reason for
Gurr's change of work schedules; Deneen's conclusion
that the nature of the weekend shift insofar as it required
Gurr to work two consecutive days of 16 hours a day
made it impossible for Gurr "to remain sharp" and that
Deneen had heard rumors that Gurr slept during work-
ing hours.
It is true that Gurr did "nap" occasionally during
working hours when there was no work, but it is also
true that when Gurr assumed his weekend assignment
that he was authorized to do this by Deneen's predeces-
sor. Gurr credibly testified that after Deneen assumed
the position of department manager that Gurr continued
his practice of taking an occasional nap, that he did this
in Deneen's presence, and that Deneen said nothing
about this to him.35 There is absolutely no evidence or
contention that management had any complaints about
Gurr's work performance during his approximately 3
years of work on the weekend shift. Quite the opposite,
it is undisputed that Gurr's performance was regarded as
outstanding by management as well as by the radiologists
and emergency room physicians who depended on
Gurr's work. In short, the whole record reveals no con-
cern by management about the length of Gurr's work-
day. This is not surprising because Gurr, did in fact stay
"sharp" during the weekend shift as is evidenced by his
" No explanation was offered by either Deneen or Anton for Respond-
ent's failure to replace Gurr on the weekday day shift.
s5 I reject Deneen's testimony that he merely heard rumors about
Gurr's sleeping. In terms of demeanor, Gurr, whose testimony I have
credited on this subject, impressed me as a more credible witness than
Deneen.
634
ST. ALPHONSUS HOSPITAL
exemplary work record, and Deneen knew this. Also I
note that, in notifying Gurr about the change in his work
schedule, Deneen significantly failed to mention Gurr's
long hours as a justification for the reassignment.
The foregoing circumstances, plus my observation that
Deneen in terms of demeanor was not a trustworthy wit-
ness, have persuaded me to reject Deneen's testimony
that one of the reasons which led him to reassign Gurr
was Deneen's conclusion that Gurr was working too
many consecutive hours on the weekend shift. I find that
this reason was a fabrication.
Respondent urges that the record establishes that Gurr
would have been reassigned to the day shift even absent
his protected activity because the decision to reassign
him was made prior to the time he voted in the union
representation election and was a part of other changes
made by the Hospital as the result of a productivity
study.
With respect to its timing, Anton and Deneen testified
that the decision to reassign Gurr was made in the
summer of 1980, with Deneen setting the date as June
1980, but was delayed until after the election upon the
advice of Respondent's lawyer. In terms of their demea-
nor neither Anton nor Deneen impressed me as trustwor-
thy witnesses when they gave this testimony. Moreover,
their testimony is impugned by the record as a whole
which indicates that as early as January 1980 Respond-
ent's management was refusing to promote Gurr to the
position of coordinator because it thought he was still
supporting the Union and Respondent was using as one
of its excuses the fact that Respondent thought it might
have to change Gurr's workshift. Specifically, it is undis-
puted that in late 1979 and early 1980 when Gurr com-
plained to Deneen about management's failure to pro-
mote him to the newly created position of coordinator,
and grant him the $100-a-month pay raise that went with
it, that Deneen, on three separate occasions, gave Gurr
completely different reasons for the Hospital's refusal to
promote him. At their first meeting Gurr was told that
he had not been promoted because he did not supervise
the same people every weekend; at their next meeting
Gurr was told he had not been promoted because the
Hospital might have to eliminate his weekend position
and move him to days; and at their third meeting Gurr
was told that he had not been promoted because manage-
ment thought he was still supporting the Union, rather
than management. Gurr at this time swore he was no
longer supporting the Union and was then promoted to
the position of coordinator. Considering the context in
which management first mentioned to Gurr that he
might be transferred from his weekend shift, the infer-
ence is warranted that Respondent's preelection decision
to change Gurr's work schedule was simply a fabrication
to deny Gurr promotion because Respondent thought he
was still engaging in union activities. This bolsters the in-
ference that Respondent's postelection decision to
change Gurr's workshift was likewise a fabrication de-
signed to punish Gurr because Respondent still thought
he was a union supporter.
With respect to Respondent's contention that the
change in Gurr's work schedule was a part of other
work schedule changes made pursuant to a productivity
study, the record reveals that the work schedules of
technologists O'Connor and Hammond were changed at
the same time as Gurr's. It is undisputed, however, that
the change of O'Connor's and Hammond's schedules was
completely unrelated to Gurr's. Their reassignment was
not dependent on Gurr's reassignment or vice versa.
Under the circumstances, the fact that Respondent chose
to reschedule Hammond and O'Connor does not warrant
the inference that the rescheduling of Gurr would have
also taken place absent his union activities.
For the reasons set forth above, I am of the opinion
that Respondent has failed to meet its burden of rebut-
ting the General Counsel's prima facie case.
Based on the foregoing, I find that the General Coun-
sel has proven, by a preponderance of the evidence, that
Respondent reassigned Gurr from the weekend to the
weekday day shift because of his union activities and be-
cause he voted in the union representation election con-
ducted by the Board.
E. Gurr's Discharge
I am persuaded that the General Counsel has estab-
lished a prima facie case that Respondent on September
23, 1980, discharged Gurr because of his union activities
and because he voted in the union representation elec-
tion. This conclusion is based on the following consider-
ations in their totality.
Respondent immediately before discharging Gurr, as I
have found supra, violated Section 8(a)(3) and (1) of the
Act by reassigning Gurr from the weekend shift to the
weekday day shift because of his union activities and be-
cause he voted in the union representation election.
The discharge took place shortly after Respondent,
acting on the advice of its lawyer, had decided not to
carry out its decision to discharge Gurr for voting in the
union representation election.
When Department Manager Deneen notified Gurr and
the rest of the department's staff that Gurr was being ter-
minated he prefaced his remarks with the statement that
Gurr had been asking to be discharged "for a long time."
Viewed in context this could only have been a reference
to Gurr's voting in the union representation election de-
spite Respondent's instruction not to vote and to Re-
spondent's belief that Gurr had continued to support the
Union despite its instruction that he cease his union ac-
tivities. Thus, it is undisputed that Gurr, whose work
performance was highly regarded by management, had
an unblemished employment record. The sole evidence
of any complaint by management about Gurr relates to
his voting in the union representation election and to
management's belief that he had not obeyed its instruc-
tion to refrain from engaging in activities on behalf of
the Union.
Also significant in evaluating Respondent's motivation
in discharging Gurr is the undisputed fact that, where as
Deneen on the day of the discharge told Gurr he was
discharging him because he had failed to follow the
Company's established grievance procedure, Deneen on
the same day informed technologist Wandro that Gurr
had been discharged for refusing to work on the day
shift. Deneen, who did not deny that he gave completely
635
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
different reasons to Gurr and Wandro for Gurr's dis-
charge, did not explain this inconsistency.
The aforesaid considerations, in their totality, persuade
me that the General Counsel has established a prima facie
case that Respondent discharged Gurr on September 23,
1980, because of his union activities and because he
voted in the union representation election.
I shall now evaluate the reason relied on by Respond-
ent for discharging Gurr. This reason is set out in Gurr's
September 23, 1980, termination slip, signed by Deneen
and Anton, which, in the section reserved for a detailed
explanation of the reason of reasons for a discharge,
states that Gurr was discharged because: "[Gurr] failed
to follow established grievance procedure." I shall scruti-
nize this reason in the light of the whole record.
Respondent's published grievance procedure as applied
to Gurr provides for Gurr to take his grievance to De-
partment Manager Deneen, then to Assistant Administra-
tor Anton, then to Personnel Director Halter, and, if it is
still not resolved, to the Hospital's administrator. Gurr
did not comply with this procedure when he grieved
about his reassignment from the weekend to the weekday
day shift. Rather than discuss his grievance with Assist-
ant Administrator Anton, after failing to resolve it by
talking to Deneen, Gurr went to the radiologists and
emergency room doctors and sought to resolve his griev-
ance by having them speak on his behalf to management.
Without question Respondent has established a legitimate
nondiscriminatory reason to discipline Gurr. But this
does not end the matter, for the question to be decided is
whether the record, as a whole, demonstrates that Re-
spundent during the normal course of business would or
would not have discharged Gurr for engaging in this
misconduct even absent its antagonism against him for
voting in the union representation election and engaging
in activity on behalf of the Union. I am of the opinion
that the record demonstrates Respondent would not have
discharged Gurr during its normal course of business.
This opinion is based on the following considerations.
In the past Respondent condoned Gurr's failure to
comply with the Hospital's established grievance proce-
dure. In August 1979 when Gurr thought Deneen had
acted improperly in directing him to cease his union ac-
tivities because he was a supervisor, Gurr took his griev-
ance directly to the administrator of the Hospital and, in
December 1979, in connection with his grievance about
not being promoted to coordinator, Gurr, after grieving
to Deneen next took his grievance to Assistant Manager
Krogstad, rather than to Assistant Administrator Anton,
and next went to Personnel Director Halter rather than
to Anton. In neither instance did management discipline
or even criticize Gurr for not following the established
grievance procedure. As a matter of fact, in connection
with Gurr's grievance about the change of his work
schedule, Deneen directed Gurr to speak to Personnel
Director Halter about his grievance, rather than to
Anton, as provided for by the grievance procedure. 36
"e Gurr, in less than a week, made two unsuccessful attempts to speak
to Halter about his grievance and his messages to Halter in this respect
went unanswered. It was only after he had been unsuccessful in his effort
to speak to Halter that Gurr spoke to the physicians about his grievance.
Gurr, who had been employed by Respondent for 4-
1/4 years and was regarded as an outstanding employee
was punished by the imposition of the most severe penal-
ty available to Respondent. This, despite the fact that
other than the criticism because of his union activities,
Gurr was never criticized or disciplined by management
for anything. Nor is there evidence that other employees
were discharged for not following Respondent's griev-
ance procedure. Of course the choice of discipline is the
sole prerogative of management, and it is not my func-
tion to second guess management, but the law is settled
that the imposition of the ultimate form of discipline
upon a long-term valued employee for a first offense cer-
tainly is relevant evidence which must be considered in
determining whether an employer would have normally
discharged an employee absent the employee's protected
activity. American Thread Company v. N.L.R.B., 631
F.2d 316 (4th Cir. 1980).
The penalty of discharge was imposed upon Gurr in
complete disregard and in contravention of Respondent's
progressive disciplinary system. Respondent's personnel
director, Halter, testified that Respondent has a progres-
sive disciplinary procedure whereby:
There must be one disciplinary action on file for
any termination before one can be terminated for
other than cause such as, say drunkenness, theft, or
drug use, or this type of thing-but for any other
type of thing that involves counseling . . . a disci-
plinary action is required, and that is a form signed
by the employee, and states the conditions of basi-
cally some type of probationary period.
Respondent's personnel handbook distributed to the em-
ployees in the section entitled "Disciplinary Action"
states, [a]s a general rule, an employee will not be dis-
charged . . . unless at least one disciplinary action
record is on file for a previous offense," except for cer-
tain enumerated "gross violation of conduct" which it
lists as follows:
A. Unsatisfactory reference
B. Incompetence
C. Irregular attendance or excessive absenteeism
D. Repeated failure to report an accident
E. Gross neglect of duty
F. Insubordination
G. Unprofessional traits
H. Dishonesty
I. Disorderly conduct
J. Falsification of time records
K. Soliciting or accepting tips
L. Willful destruction of hospital property
M. Intoxication or bringing intoxicating beverage
on premises
N. Habits or state of health dangerous to the
worker, coworkers, or the patients.
O. Falsification of employment application
P. Drug abuse or addiction
Gurr's conduct of taking his grievance about his
changed work schedule to the physicians with whom he
worked, instead of complying with Respondent's griev-
636
ST. ALPHONSUS HOSPITAL
ance procedure does not even remotely resemble any of
the "gross violation of conduct" listed in the Hospital's
handbook which warrant immediate dismissal. It is clear-
ly the type of misconduct which Personnel Director
Halter testified Respondent normally handles by first
counseling the employee and issuing a disciplinary action
slip. Neither Halter, Anton, nor Deneen explained why
Respondent in Gurr's case deviated from its usual system
of progressive discipline. 37
The foregoing circumstances-Respondent's condona-
tion of Gurr's past failure to comply with the Company's
grievance procedure, the severity of Gurr's punishment,
and the fact that Gurr's punishment violated Respond-
ent's progressive disciplinary system-persuade me that
Respondent seized upon Gurr's failure to use the Hospi-
tal's grievance procedure as a pretext to discharge him
and that Gurr ordinarily would not have been dis-
charged during the normal course of business for this act
of misconduct.
Respondent, in its post-hearing brief urges that Gurr
was fired not only for failing to abide by the Hospital's
established grievance procedure, but also because he fal-
sely alarmed the Hospital's doctors about the confidence
of the radiology department's staff during weekends. Ini-
tially I note that the termination slip issued to Gurr on
the date of the discharge simply stated Gurr was dis-
charged because he failed to follow the Hospital's estab-
lished grievance procedure. It did not refer directly or
indirectly to the nature of Gurr's conversations with the
doctors. Nor did Deneen or Anton testify that the nature
of Gurr's comments to the doctors played a part in the
decision to discharge him. In any event, Gurr's state-
ments to the doctors that he felt the radiology depart-
ment would not be able to provide the same service
during weekends without him stems from a situation
which Respondent itself created by virtue of its unfair
labor practices. Respondent's illegal action of changing
Gurr's work schedule from the weekend to the weekday
day shift in violation of Section 8(a)3) and (1) of the Act
was, by its very nature, the kind of conduct calculated to
provoke Gurr's sense of indignation and his temper. It
was natural for Gurr to speak to the doctors who
worked with him in an effort to have Respondent re-
scind its illegal action and, under the circumstances, his
remarks were not unreasonable. It is plain that but for
Respondent's unlawful alteration of Gurr's work sched-
ule, the conduct attributable to Gurr and relied on by
Respondent to discharge him would never have oc-
curred. While I do not condone Gurr's statement to the
doctors it would be inequitable to allow Respondent to
rely on this conduct in order to justify his discharge, par-
ticularly since his conduct was not sufficiently egregious
so as to ordinarily deny an employee the protection of
the Act and would not have occurred but for Respond-
ent's unfair labor practices. Cf. Louisiana Council No. 17,
AFSCME, AFL-CIO, 250 NLRB 880, 889 (1980); Max
Factor & Co., 239 NLRB 804, 818-819 (1978).
Based on the foregoing I am of the view that the Gen-
eral Counsel has proven by a preponderance of the evi-
" There is no evidence that Respondent normally deviates from its
progressive disciplinary system.
dence that Respondent discharged Gurr because it
thought he had disregarded its instruction not to support
the Union and because he had disregarded its instruction
not to vote in the union representation election, thereby
violating Section 8(a)(1) and (3) of the Act. 38
Upon the foregoing findings of fact and the entire
record, I make the following:
CONCLUSIONS OF LAW
1. Respondent, St. Alphonsus Hospital, is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. The Union, Office and Professional Employees In-
ternational Union, Local No. 196, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the
Act.
3. Michael Gurr is not a supervisor within the meaning
of Section 2(11) of the Act.
4. By informing employees that it intended to dis-
charge Gurr for voting in a union representation elec-
tion, Respondent violated Section 8(a)(1) of the Act.
5. By changing Gurr's work schedule from the week-
end shift to the weekday day shift on September 16,
1980, and by discharging him on September 23, 1980, be-
cause of his union activities and because he voted in a
union representation election, Respondent violated Sec-
tion 8(aX)(1) and (3) of the Act.
THE REMEDY
Having found that Respondent, in violation of the Act,
transfered Michael Gurr from the weekend shift to the
weekday day shift and thereafter discharged him, I shall
recommend that Respondent offer him immediate and
full reinstatement to the position of coordinator on the
weekend shift in the radiology department, or, if that po-
sition no longer exists, to a substantially equivalent posi-
tion, without prejudice to his seniority and other rights
and privileges and make him whole for any loss of earn-
ings he may have suffered by reason of such unlawful
conduct, by payment of a sum of maney equal to that
which he normally would have earned as wages from
the date of discharge to the date of said offer of rein-
statement, less net earnings during said period, with
backpay computed on a quarterly basis in the manner es-
tablished by the Board in F. W Woolworth Company, 90
NLRB 289 (1950), together with interest thereon com-
puted in the manner prescribed in Florida Steel Corpora-
tion, 231 NLRB 651 (1977).?' Additionally, Respondent
shall expunge from its employment records all references
to Gurr's discharge.
" The fact that in changing Gurr's work schedule and in discharging
him for his union activities and/or for voting in the union representation
election, Respondent mistakenly believed he was a statutory supervisor is
no defense because Gurr's rights under the Act to support the Union and
vote in the representation election were not subject to defesance merely
because Respondent mistakenly believed he was a statutory supervisor.
N.L.R.B. v. Puerto Rico Mills Rayon, Inc., supra; Orr Iron, Inc., 207
NLRB 863 (1973), enfd. 508 F.2d 1305 (7th Cir. 1975); Montgomery Ward
& Co., Incorporated, 198 NLRB 52 (1972).
39 See, generally, Isis Plumbing d Heating Company, 136 NLRB 716
(1962).
637
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER 40
The Respondent, St. Alphonsus Hospital, Boise, Idaho,
its officers, agents, successors, and assigns, shall:
i. Cease and desist from:
(a) Discharging, changing the work schedules, or oth-
erwise discriminating against employees for supporting
or engaging in activities on behalf of Office and Profes-
sional Employees International Union, Local No. 196,
AFL-CIO, or any other labor organization, or for voting
in a union representation election conducted by the Na-
tional Labor Relations Board.
(b) Threatening employees with discharge if they vote
in a union representation election conducted by the Na-
tional Labor Relations Board.
(c) In any like or related manner interfering with, re-
straining, or coercing employes 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) Immediately offer to Michael Gurr full reinstate-
ment to his former position as coordinator on the week-
end shift in the radiology department or, if that position
no longer exists, to a substantially equivalent position
without prejudice to his seniority or any other rights and
privileges previously enjoyed, and make him whole for
any loss of earnings or other benefits suffered as a result
of the discrimination against him, in the manner set forth
i. the section of this Decision entitled "The Remedy."
(b) Expunge from its records all references to Michael
Gurr's discharge.
(c) Post at its facility in Boise, Idaho, copies of the at-
tached notice marked "Appendix."4 ' Copies of the said
notice on forms provided by the Regional Director for
Region 19, after being duly signed by Respondent's rep-
resentative, shall be posted by Respondent immediately
upon receipt thereof and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily
40 In the event no exceptions are filed as provided by Sec. 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
4i In the event that 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or cov-
ered by any other material.
(d) Notify the Regional Director for Region 19, in
writing, within 20 days from the date of this Order, what
steps have been taken to comply herewith.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge, change the work sched-
ules, or otherwise discriminate against employees
for supporting or engaging in activities on behalf of
Office and Professional Employees International
Union, Local No. 196, AFL-CIO, or any other
labor organization, or for voting in a union repre-
sentation election conducted by the National Labor
Relations Board.
WE WILL NOT threaten employees with discharge
if they vote in a union representation election con-
ducted by the National Labor Relations Board.
WE WILL NOT in any like or related manner in-
terfere wth, restrain, or coerce employees in the ex-
ercise of the rights guaranteed them by Section 7 of
the Act.
WE WILL immediately offer to Michael Gurr full
reinstatement to the position of coordinator on the
weekend shift in the radiology department, or, if
that position no longer exists, to a substantially
equivalent job, without prejudice to his seniority or
other rights and privileges previously enjoyed; and
WE WILL make him whole for any loss of earnings
or benefits, with interest, and expunge all references
to his discharge from our employment records.
ST. ALPHONSUS HOSPITAL
638