Tabernacle Community Hospital

National Labor Relations Board - Board Decisions

Dec 23, 1977

233 N.L.R.B. 1425 (N.L.R.B. 1977)

TABERNACLE COMMUNITY HOSPITAL
Tabernacle Community Hospital & Health Center and
Denise Dixon. Case 13-CA- 16030
December 23, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND MURPHY
On August 24, 1977, Administrative Law Judge
Donald R. Holley issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby is,
dismissed in its entirety.
DECISION
STATEMENT OF THE CASE
DONALD R. HOLLEY, Administrative Law Judge: Upon a
charge filed by Denise Dixon, herein called Dixon, on
November 30, 1976, a complaint was issued on December
23, 1976,1 alleging that Tabernacle Community Hospital &
Health Center, herein called Respondent, violated Section
8(a)(l) of the National Labor Relations Act, as amended,
herein called the Act, on November 4, 1976, by discharging
and thereafter refusing to reinstate Dixon "because of her
protected concerted activity." Respondent filed an answer
denying the commission of the unfair labor practice
alleged.
The case was heard before me in Chicago, Illinois, on
February 28 and March 14, 1977. Subsequent to the
hearing, counsel for Respondent and General Counsel filed
briefs which have been carefully considered.
I All dates are 1976 unless otherwise indicated
2 Respondent filed an answer dated January 10. 1977. which merely
denied the commission of the unfair labor practices alleged in the complaint.
The answer made no reference to the jurisdictional and/or agency and
supervisory allegations of the complaint (G.C. Exh. l(e)). Respondent was
advised by telegram dated January 10. 1977, inrer alia, that "Section 102.20
[Board's Rules and Regulations. Senes 8. as amended,] states that all
allegations in complaint are deemed to he admitted to be true if an answer is
233 NLRB No. 208
Upon the entire record and the briefs filed by the parties.
I make the following:
FINDINGS OF FACT
1. JURISDIC1ION
Respondent operates a hospital and health care center at
5421 South Morgan, Chicago, Illinois. During calendar
year 1974, a representative period, its gross volume of
business exceeded $250,000 and during the same period it
purchased and received from points located outside the
State of Illinois goods valued in excess of $5,000.
Upon the foregoing facts, which were admitted by
Respondent,2 I find it is a health care institution within the
meaning of Section 2(14) of the Act and that it is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICE
A. Background Facts
Respondent has operated the hospital involved in this
proceeding since February 12, 1972. Since 1974, a number
of its employees have been represented by Hospital
Employees Labor Program of Metropolitan Chicago, here-
in called H.E.L.P.3 Employees in Respondent's business
department, the department in which alleged discriminatee
Dixon worked, are unrepresented.
In the spring of 1975, Respondent promulgated and
distributed to its employees a handbook which is entitled
"Tabernacle-Your Employee Handbook." 4 The hand-
book closely resembles the normal collective-bargaining
agreement as it contains a comprehensive statement of
work conditions and regulations, provisions concerning
employment status, pay information, a listing of employee
benefits, provisions regarding time off, general provisions.
safety and security provisions, and an employee grievance
procedure. The grievance procedure set forth in the
handbook provides as follows:
IX. EMPLOYEE GRIEVANCE PROCEDURE
It is recognized that employees may have a grievance
which should be reviewed through a formal procedure.
Employee grievances (unless specified otherwise by
the employee) are to be handled in confidence. No
employee is to be adversely treated nor suffer any
negative consequences for filing a grievance.
DEFINITION OF A GRIEVANCE
A grievance is a complaint by any employee(s)
concerning any aspect of employment relationship with
the hospital.
not filed." Respondent filed no further pleadings after receipt of the
described telegram. Accordingly, I find that pars. 1, II, III, and IV of the
complaint were admitted by operation of Sec. 102.20 of the Board's Rules
and Regulations.
3 Although the record reveals Respondent and H.E.L.P. are currently
parties to a collective-bargaining agreement, the contract was not placed in
evidence.
4 G.C. Exh. 4.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
PROCEDURE FOR HANDLING GRIEVANCES
The following procedure has been developed in
order that grievances can be reviewed quickly and
easily.
Any employee who believes s/he has a complaint
with respect to the interpretation or application of, or
compliance with, provisions stated in this handbook or
with respect to disciplinary action taken with the
employee, including the reasonableness of any hospital
rules of conduct or regulations under which the
disciplinary action may have been taken with the
exception of suspensions shall discuss the matter orally
with his immediate Supervisor and/or Department
Head, if applicable, for appropriate resolution. If the
complaint is not satisfactorily adjusted, the employee
may avail himself of the following procedure:
1. File a written statement containing the nature of
the grievance and the relief sought, dated and
signed, submitting it to his immediate Supervisor
and/or Department Head within ten (10) calen-
dar days from the date on which the grievance
occurred or from the date on which the grievance
should have been known to the employee, which-
ever occurs later.
2. Meet with the Supervisor and Department Head to
discuss the matter. Within four (4) calendar days,
thereafter the disposition shall be given to the
employee in a private meeting.
3. If the grievance is not satisfactorily adjusted in Step
2, or if an answer is not given within four (4)
calendar days after the date of submission of the
grievance to the employee's Supervisor of Depart-
ment Head, the employee shall submit the griev-
ance to the Director of Personnel or designee.
The grievance then shall be considered in a
meeting between the employee and the Director
of Personnel or his designee who shall reply in
writing ten (10) calendar days after the meeting.
4. If the grievance is not satisfactorily adjusted in Step
3, a meeting between the Administrator or desig-
nee, the Personnel Director or designee, the
Department Head or Supervisor and the employ-
ee will be held to resolve the problem. The
decision made at this meeting shall be final and
binding.
B. The Alleged Concerted Activity and Discharge
Denise Dixon was hired by Respondent on September
27, 1976. She was referred by the personnel department to
Melba Skillern, assistant supervisor of patient accounts, in
Respondent's business department for interview. Noting
that Dixon had received schooling and training in key-
punching, Skillern hired Dixon as a billing clerk and
initially assigned her to work on Blue Cross-Blue Shield
outpatient billing. In this position, Dixon typed claim
5 Dixon credibly testified Braxton told her as late as November 1 that
Skillern said she was smart and was doing well. Braxton admitted
complimenting Dixon on her work but denied telling her she was smart and
doing well on November 1. Dixon was the more straightforward and I credit
her rather than Braxton.
forms, sent them to Blue Cross and medicare, and
thereafter followed up on the claims by ascertaining why
they had not been paid or why they were not going to be
paid. Some four or five other persons performed similar
tasks within the department.
While Dixon was absent from work on three occasions
during the period September 27 to November 3, she
testified without contradiction that she was complimented
on her work several times by her immediate supervisor,
Skillern, and by the department supervisor, Carl Braxton.5
In late October, a billing clerk who had been handling
commercial insurance inpatient accounts left Respondent's
employ and Dixon was then assigned additional work
which involved the preparation and submission of claims
to commercial insurance companies. In addition to typing
and submitting such claims, she contacted patients to cause
the preparation of claim forms, and followed up in claims
submitted. She continued to perform the Blue Cross-Blue
Shield outpatient work.
On November 3, Dixon was assigned some work involv-
ing commercial insurance which was unfamiliar to her.
Skillern testified she instructed Dixon to confer with her
regarding the assignment before undertaking it. On this
day, Dixon left the work area for lunch at approximately
12 noon and went to the reception area located near the
administrator's office. She there met John Finch, the
supervisor in charge of Respondent's data processing
department. Dixon asked Finch if he had any openings for
a keypunch operator and Finch indicated he needed
another employee who could keypunch, although the
person would not work at that sole task for 8 hours every
day. Dixon credibly testified Finch told her he could use
her and that he asked her what she was going to do about
Braxton, explaining he and Braxton did not see "eye to
eye." 6 Dixon replied that it would be up to Braxton to get
someone to fill her position. The discussion ended as Finch
gave Dixon a book and told her to read it over and not to
worry about anything.
After Finch talked to Dixon on November 3, he obtained
her employment application from the personnel depart-
ment and telephoned Skillern. Skillern told him that Dixon
had been absent three times during her period of employ-
ment.
When Dixon returned to the business department after
the lunch hour, she went to Skillern's office to discuss the
commercial insurance assignment, and left without talking
to Skillern as she was then using the telephone. Shortly
thereafter, Skillern came to the employee's work station
and asked why she was just sitting there with a folder.
Dixon replied she was waiting for instruction and Skillern
then told her what was to be done.
Dixon then telephoned Finch to ask how much the job in
data processing would pay and Finch told her $7,000 or
$8,000. Additionally, he told the employee he had talked to
Skillern and had been informed Dixon had been absent
three times in the month she had been employed. Dixon
6 Finch testified he did not tell Dixon at the time that she could have a
job in his department. Finch's recollection was admittedly bad. I credit
Dixon whose version is substantially in accord with Finch's.
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TABERNACLE COMMUNITY HOSPITAL
assured Finch the absences were occasioned by illness and
informed him she did not intend to be absent anymore.
Shortly after I p.m. on November 3, Skillern returned to
Dixon's work area and escorted her to Braxton's office.
Braxton started the conversation by stating he had heard
Dixon had not done any work that day. Dixon questioned
the statement and Skillern observed Dixon had been sitting
with a folder in front of her all day. Dixon then complained
that she had been assigned two persons' work, and
indicated she was confused about the commercial insur-
ance work and had been told by Skillern to await
instruction before working on it. Braxton commented that
the work Dixon had done at first was peanuts and stated
the commercial work was important. He then ended the
conversation by telling Dixon she was not going to get
transferred and she had better go home, get herself
together, and think about what she was going to do.7
After work on November 3, Dixon prepared and typed
five copies of a letter protesting the actions of Skillern and
Braxton. The letter provides as follows:
To: Dept. Administration
From: Denise Dixon Billing Clerk Business Office
Subject: Unfare [sic] Employment Practice
Date: November 3, 1976
On November 3, 1976 I discussed a possible position
within the department of Data Processing with the
director, Mr. John Finch. During the course of discus-
sion Mr. Finch examined my application and had given
me a book to make myself knowledgeable of the
machine's that are utilized in that department.
It was my understanding that Tabernacle Hospital
practices "Job Opportunities to their employees first,
secondly to those working outside the institution."
After talking with Mr. Finch, he discussed my possible
transfer, promotion, and/or etc. with Ms. V. Skillern,
she informed Mr. Finch that I had been absent too
much sence [sic] the date of my employment, which
was September 27, 1976.
I admit that I have been absent three times during
my employment status here due to illness, however, I
also realize when a supervisor is not satisfied with an
employee, there are specific procedures which should
be followed, of which have not been instituted.
I feel that I have been dealt with unfairly, not only
because of this matter but also the fact that I have been
instructed to be responsible for the work of two
employees, yet my supervisors feels I'm not liable for a
transfer.
I Braxton testified he merely informed Dixon she was not following the
proper procedure to obtain a transfer and Skillern, who placed the
conversation as occurring on November 4. corroborated Braxton. While
procedure was probably mentioned during the conversation. I credit
Dixon's assertion that Braxton told her she was not going to be transferred.
In this connection, I note that the letter prepared by Dixon on November 3
corroborates her version. See G.C. Exh. 3.
8 At some unspecified time, she delivered a copy to Dr. Rawls, chairman
of the board.
9 Braxton denies he told Dixon he had to "let her go." I do not credit
I would appreciate you looking into this matter,
prior to me filing a grievance.
Copy: Willie Gable, Jr. Administrator,
cc: Dr. Rawls, Chairman, Mr. Braxton, Ms. V. Skillern,
Personnel
Dixon claims she prepared the protest letter as she felt her
rights as explained in Respondent's handbook had been
violated. On November 4, she delivered copies of the letter
to the administrator, Willie Gable, Jr., at 8 a.m., and gave
copies to Braxton, Skillern, and personnel between 12:30
and I p.m.8 Braxton's reaction to the letter was swift; he
came to Dixon's work area and asked her to accompany
him to his office. He there told her "I [she] don't come up
here and mess up his organization" and then walked back
to her work area. He then told her "Well, I'm going to deal
with you on this matter today," and called for Mrs.
Skillern. When Skillern arrived he instructed her to take
Dixon to her office with her work and watch her to see
exactly what she was doing. During the conversation,
Braxton told Dixon she should not have given a copy of the
letter to Rawls and commented she was not following the
proper procedure.
At approximately 2:30 p.m. Skillern took Dixon to the
xerox room where Dixon claims Braxton told her "Denise,
I'm going to have to let you go because of your negative
attitude and because of your attitude today and the letter,
the grievance, because the grievance shows a negative
attitude." 9 Upon being told she was fired, Dixon left
Skillern and Braxton and spent the remainder of the
workday talking to Respondent's administrator, Gable,
and gathering her personal effects.'1
Approximately a week subsequent to November 4,
Dixon visited Respondent's premises to pick up her check.
In the meantime, she had talked by telephone with Gable
and Finch. Both advised her to file a "formal" grievance.
Gable indicated to her that his assistant would assist her if
she wanted help. Finch merely referred her to the person-
nel department for information regarding the manner in
which she should press her grievance. She chose to refrain
from filing any further grievance as she testified she felt the
November 3 letter delivered on November 4 was sufficient
to express her grievance.
After his last discussion with Dixon on November 4,
Braxton prepared a memorandum concerning events of
November 3 and 4. It is in the record as Respondent's
Exhibit 2 and states:
Subject: Job Performance (Denise Dixon)
Braxton's denial. Skillern corroborated Dixon by testifying Braxton told
Dixon, "Denise, I don't want anyone working for me that's not going to get
along, that's not going to work. I don't need any problems in this
department." I credit Dixon.
is Gable refused to intervene in the matter when Dixon informed him of
her discharge. He advised her to file a formal grievance in which she stated
what every person said in connection with the transfer matter and instructed
Skillern or Braxton to permit her to return to the department to get her
personal effects.
1427
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On Wednesday, November 3, 1976, a meeting was
held with Denise Dixon, Mrs. Skillern and myself
concerning her attitude and job performance.
1. I asked Mrs. Skillern to inform me about the
problems she was having with Ms. Dixon, she
advised me that there were several areas that
needed to be corrected immediately; namely:
A. Ms. Dixon's belligerent, negative, and hostile
attitude.
B. Ms. Dixon's unproductive manner which has been
observed on numerous occasions.
C. Ms. Dixon's absenteeism and tardiness.
D. Ms. Dixon's unwillingness to accept a change in
her assigned duties; namely, her being changed
from an Out-pt biller to that of an In-pt Ins.
biller.
2. At this time I asked Ms. Dixon if she was having
any problems; she stated that she felt it was
unfair for her to do (2) peoples work. I explained
to Ms. Dixon that she was a probationary
employee and as such would be undergoing an
intensified training program, and that each biller
would be required to have a thorough knowledge
of a secondary billing function. I also advised Ms.
Dixon that she was not being assigned (2) peoples
work, and gave example of the other personnel in
the office.
3. 1 further stated that the main area of my concern
was her negative and hostile attitude, also her
inability to accept criticism, and that her attend-
ance has been very poor.
4. Ms. Dixon was further advised concerning the
correct procedure to follow when an employee
desires a transfer.
IN CONCLUSION:
After reviewing this matter with those concerned, it
is the feeling of this office that with the type of attitude
displayed by Ms. Dixon, she will not develop into the
type positive and concerned employee needed to
perform her duties in the business office, in a profes-
sional manner.
On November 4, 1976, I received a letter from Ms.
Dixon ( SEE ATTACHED); I explained to her once again
the transfer procedure. After considerable discussion
with Ms. Dixon, Mrs. Skillern, and the Personnel
Manager, this office made the decision to terminate
Ms. Dixon.
C. L. Braxton
Additionally Skillern and Braxton prepared a "Notice of
Termination" which was thereafter processed within the
Company. The document, which is in the record as
Respondent's Exhibit I, provides spaces for "Voluntary,"
"Involuntary," and "Other" types of termination. The
"Reason for Termination" information in the Dixon
document consists of X marks preceding "unsatisfactory
Probation" and "Attitude" in the "Involuntary" column."
I" Although Dixon told Gable she had been fired and he discussed the
termination with Skillern or Braxton while she wits in his office, no
Analysis and Conclusions
Viewing the evidence in this case in a light most
favorable to General Counsel, I am nevertheless compelled
to conclude that Denise Dixon did not engage in activity
protected by Section 7 of the Act when she delivered her
protest letter to Respondent on November 4, 1976.
Section 7 of the Act provides (in relevant part):
Employees shall have the right . . . to engage in . . .
concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection ....
In the case sub judice, Dixon spoke solely with manage-
ment representatives concerning her desire to transfer from
Respondent's business department to its data processing
department and, when her department manager indicated
she would not be transferred, she prepared a letter of
protest which was subsequently delivered to and discussed
with management. The letter, which was not shown to have
been discussed with her fellow employees, protested the
actions of supervision, principally the actions of the
departmental supervisor, Braxton.
In Continental Manufacturing Corp., 155 NLRB 255
(1965), the Board reversed a Trial Examiner's finding that
an employee engaged in activity was protected by Section 7
of the Act when she sent her employer a letter protesting
the actions of supervisor and sanitary conditions stating (at
257-258):
The letter, which was directed only to the Respon-
dent, was prepared and signed by Ramirez acting
alone. She did not consult with Rodriguez, any other
employee, or the Union about the grievances therein
stated or her intention of sending the letter to DeSantis.
There is no evidence that the criticisms in the letter
reflected the views of other employees, nor is there
evidence that the letter was intended to enlist the
support of other employees. This letter received no
support from union representatives. We disagree with
the Trial Examiner's finding that the letter was merely
an extension of the concerted efforts of Rameriz and
Rodriguez to find the employees responsible for the
filthy condition of the restroom.... Under all the
circumstances, we find . . . that Ramirez' letter to
DeSantis was not a protected concerted activity. Ac-
cordingly, Ramirez' discharge in part for writing the
letter was not a violation of Section 8(aX 1).
Similarly, in Northeastern Dye Works, Inc., 203 NLRB 1222
(1973), the Board reversed the Administrative Law Judge's
finding that an employee engaged in protected concerted
activity when he voiced complaints to management which
related to another employee stating (at 1223):
. . in order for his complaints to have been protect-
ed, they must have related to the correction of working
conditions which were of concern to the group of
employees allegedly being represented by him and he
Respondent official told her prior to the hearing that they felt she had quit
her job.
1428
TABERNACLE COMMUNITY HOSPITAL
must have been speaking for the benefit of the interest-
ed group, not merely for himself.
Application of the legal principles set forth in the above-
cited cases would appear to compell the conclusion that the
Dixon protest was not a protected activity since it was
purely personal, no other employees were involved in the
matter protested, and no group of employees would have
benefited had Dixon been successful in her protest.
However, counsel for the General Counsel contends that
Dixon's activity was transformed into protected concerted
activity because she was attempting to implement the
grievance machinery unilaterally established by Respon-
dent for the benefit of its unrepresented employees. In
support of this contention, counsel cites cases wherein the
Board has held that attempts by single employees to
implement provisions of collective-bargaining agreements
constitute protected concerted activity as the implementa-
tion of a collective-bargaining agreement "is but an
extension of the concerted activity giving rise to the
agreement." 12 I find those cases are inapplicable here since
Dixon's protest was unrelated to any collective-bargaining
agreement. Alternatively, counsel for the General Counsel
submits the decision of the Board in Alleluia Cushion Co.,
Inc., 221 NLRB 999 (1975), is supportive of his position as
the Board there found that, when an employee individually
complained of a matter of obvious mutual concern to other
employees, the activity was protected by Section 7. 1 find
that the principle enunciated in Alleluia is inapposite as the
employee in that case complained to OSHA in an attempt
to achieve safe working conditions for all employees. In the
instant case Dixon sought something for herself only and
that which she sought did not relate generally to the
working conditions of other employees.
In the final analysis, counsel for the General Counsel
requests that I find in this case that activity by an employee
which is undertaken individually should be deemed to be
concerted activity for the mutual aid or protection of other
employees because the impact of Respondent's actions
upon receipt of the grievance may deter other employees
from utilizing the grievance procedure unilaterally promul-
gated and placed into effect by Respondent. I refrain from
making such a finding as the statute and Board precedent
reveal I must view the activity of the employee rather than
the activity of the employer (and the probable conse-
quences of the latter activity) to determine whether the
12 Merlyn BunneY and Clarence Bunney, partners, d/b/a Bunney Bros.
Construction Company, 139 NLRB 1516. 1519 (1962); Interboro Contractors,
Inc., 157 NLRB 1295 (1966), enfd. 388 F.2d 495 (C.A. 2); C & I Air
Conditioning., Inc., et al. 193 NLRB 911 (1971); and ARO. Inc., 227 NLRB
243 (1976).
13 Respondent defended claiming: (1) That Dixon quit her job; (2) that
Dixon engaged in an unprotected work stoppage which gave Respondent
cause to discharge her, and (3) that Dixon's work and attendance record
were such that discharge for cause was warranted, and (4) that Dixon did
not engage in protected activity on November 3 and 4 and, regardless of the
reason for discharge. Respondent did not violate the Act.
employee's activity is within the purview of Section 7 of the
Act.
With exception of its contention regarding the unprotect-
ed nature of Dixon's letter and/or grievance, I find the
remainder of Respondent's contentions without merit.' 3
Having credited Dixon's version of the discharge conversa-
tion, it necessarily follows, and I find, that she was fired
and did not quit.4 Respondent's claim that Dixon engaged
in an unprotected work stoppage or refusal to perform
assigned duties has not been established factually. The only
evidence relating to this claim is the evidence which reveals
she failed to work on commercial insurance forms on
November 3 until Skillern told her what was to be done. I
credit Dixon's assertion that she had been instructed to do
nothing until she received appropriate instructions from
Skillern. Finally, I find that Respondent's claim that
Dixon's termination was motivated by her poor work and
attendance record is without merit. She was complimented
on her work by Braxton as late as November I and was
assigned more responsible work tasks on or about that
date. Such actions reveal the pretextual nature of the claim
that she was discharged because her work performance and
attendance record were poor. Moreover, she was never told
she was being discharged because of her work performance
or her absenteeism record.
For the reasons stated above, I find that General
Counsel has failed to prove that Denise Dixon was
terminated because she engaged in protected concerted
activities within the meaning of Section 7 of the Act, and I
find that Respondent has not violated Section 8(a)(1) of the
Act as alleged.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
and in operations affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
2. Respondent has not engaged in unfair labor prac-
tices within the meaning of Section 8(a)(1) of the Act as
alleged in the complaint.
Upon the basis of the foregoing findings of fact,
conclusions of law, and the entire record in this case, and
pursuant to Section 10(c) of the Act, I hereby issue the
following recommended:
ORDER 15
This complaint is dismissed in its entirety.
14 Apart from Dixon's testimony, I would reach this conclusion on
consideration of Respondent's records (Resp. Exh. I) and the testimony of
Skillern. Skillern's version of the last conversation was that Braxton told
Dixon, inter alia, "I don't want anyone working for me that's not going to
get along."
is 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.
1429