Trover Clinic

National Labor Relations Board - Board Decisions

May 30, 1986

280 N.L.R.B. 6 (N.L.R.B. 1986)

6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Trover Clinic and Communications Workers of
America, AFL-CIO. Case 9-CA-18469
30 May 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND JOHANSEN
On 22 August 1983 Administrative Law Judge
Steven M. Charno issued the attached decision.
The Respondent filed exceptions and a supporting
brief, and the Charging Party filed an answering
brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions2 and to adopt the recommended
Order.
i The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect . Standard Dry
Wall Products, 91 NLRB 544 ( 1950), enfd 188 F.2d 362 (3d Cit. 1951).
We have carefully examined the record and find no basis for reversing
the findings
Contrary to our dissenting colleague, we find that Supervisor Troop's
comments that employee Gibson "keep a low profile" and "be quiet with
it" clearly referred to the latter 's organizing activity As for the dissent's
assertion that the judge applied a subjective standard in finding Troop's
remarks unlawful , the judge found that Troop's comments "would rea-
sonably tend to interfere with Gibson's free exercise of her employee
rights." Furthermore , the judge correctly cited Jax Mold & Machine, 255
NLRB 942 (1981 ), and Hanes Hosiery, Inc., 219 NLRB 338 (1975), for the
proposition that a supervisor 's statements concerning an employee 's union
activities can be coercive despite the friendly relationship between the in-
dividuals and the well -intentioned nature of the statements
We also agree with the judge that the Respondent violated Sec 8(aXl)
by informing Gibson that a wage freeze would not be lifted "until the
Union question was resolved " As the dissent admits , there is no evidence
that the Respondent had any plans to lift the wage freeze However, by
linking the continuation of the freeze to the Union, the Respondent
placed the onus for the freeze on the Union As a result , the Respondent
undermined and discouraged employee support of the Union in violation
of Sec. 8(aXl) See Otis Hospital, 222 NLRB 402, 404-405 ( 1976), enfd.
545 F 2d 252 (1st Cir 1976).
2 In finding that the Respondent discriminatorily disciplined and dis-
charged employee Gibson, we particularly rely on the judge's findings
that the Respondent departed from its customary manner of responding
to patient complaints concerning an employee's behavior or work per-
formance. The Respondent 's practice with respect to patient allegations
of improper employee conduct was to investigate the matter and seek an
explanation from the employee involved The judge found , however, that
the Respondent assumed an accusatory tone when it raised the Littlepage
complaint with Gibson, and that it rejected Gibson's attempt to explain
and told her that her efforts to satisfy the patient were beside the point
As for performance-related problems , the Respondent 's policy, except in
egregious cases, was to counsel the employee and give a series of repri-
mands before reaching the discharge stage . Initially, we note that patient
complaints concerning itemized account statements touched upon a sub-
ject of ongoing misunderstanding . The evidence reveals substantial confu-
sion among employees concerning the proper procedure for the produc-
tion of itemized statements Yet the Respondent did not conduct an inves-
tigation into the nature of the problem with itemized statements , nor did
it counsel or reprimand Gibson about her difficulties with request forms
before discharging her. Because we agree with the judge's finding that
On 23 April 1982 Clinic Administrator Dockrey
and Gibson discussed a cartoon the latter had in
her possession . The cartoon depicted a nervous
looking character with the following caption: "I've
been beaten, kicked, lied to, cussed at, swindled,
taken advantage of and laughed at, but the only
reason I hang around this place is to see what hap-
pens next!" Dockrey remarked that the cartoon
was defamatory and would not be posted on the
Clinic's bulletin board. Dockrey asked Gibson if
she had distributed the cartoon. Gibson said she
had not. Dockrey then told Gibson that the distri-
bution of material similar to the cartoon "is not
protected activity by the NLRB or anyone else,
and can be regarded as grounds for dismissal." The
judge found that the Respondent had failed to
demonstrate the existence of "special circum-
stances" to justify prohibiting the distribution of
the cartoon, and that Dockrey's statement was a
threat in violation of Section 8(a)(1) of the Act.3
The distribution of literature by employees in an
employer's facility during nonworking times and in
nonworking areas constitutes protected concerted
activity provided the literature sought to be distrib-
uted falls within the scope of the "mutual aid or
protection" clause of Section 7 of the Act.4 The
"mutual aid or protection" clause is to be interpret-
ed with regard to the relationship the employees'
activity bears to their working conditions.5 If
found to be protected, and subject to valid rules
limiting distribution, the employee literature loses
this status only in limited circumstances.6
In considering the cartoon at issue here, the
judge overlooked the threshold test of whether the
material was protected by Section 7. Instead, the
judge assumed the cartoon was protected and re-
quired the Respondent to establish the special cir-
cumstances which take employee literature outside
the protection of the Act. We find that the cartoon
was related to the employees' working conditions.
Indeed, Dockrey's contention that the cartoon was
defamatory amounts to a concession by the Re-
Gibson 's work deficiencies were not comparable to those of the one cleri-
cal employee who had been discharged without prior warning , and given
the discriminatory nature of Gibson's earlier discipline, we find that
Gibson was unlawfully discharged.
8 The judge relied on Midstate Telephone Corp, 262 NLRB 1291
(1982), enf denied 706 F 2d 401 (2d Cir 1983); and Borman 's, Inc., 254
NLRB 1023 (1981), enf denied 676 F2d 1138 (6th Cir. 1982), which in-
volved employees wearing T-shirts displaying union insignia and/or mes-
sages pertaining to working conditions and employees' exercise of pro-
tected concerted activities.
4 Firestone Steel Products Co, 244 NLRB 826 (1979)
5 Eastex, Inc v. NLRB, 437 U S. 556 (1978).
6 For example, literature containing attacks on an employer's products
or services, NLRB v Electrical Workers IBEW Local 1229, 346 U.S 464
(1953), material so disruptive to threaten plant discipline , Southwestern
Bell Telephone Co, 200 NLRB 667 (1972); and malicious falsehoods, Na-
tional Steel Corp, 236 NLRB 1033 (1978).
280 NLRB No. 2
TROVER CLINIC
spondent that it considered it to be directed at the
Respondent's treatment of its employees. We fur-
ther find that the cartoon's message did not remove
it from the protection of the Act and that the Re-
spondent did not establish the type of circum-
stances that would render the cartoon unprotected.
We therefore find that the distribution of the car-
toon would constitute protected activity, and that
Dockrey's description of that activity as possible
grounds for discharge violated Section 8(a)(1).7
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Trover
Clinic, Madisonville, Kentucky, its officers, agents,
successors , and assigns, shall take the action set
forth in the Order.
CHAIRMAN DOTSON, dissenting in part.
Contrary to my colleagues, and for the reasons
set forth below, I fmd that the Respondent did not
threaten employee Donna Gibson with discharge
or unspecified reprisals for engaging in union or
other protected activity, and did not condition ces-
sation of a wage freeze on discontinuation of union
activities.'
First, I do not agree with my colleagues that the
Respondent threatened unspecified reprisals against
Gibson for engaging in union activity. The facts
are as follows: Jay Troop, an hourly employee and
a friend of Gibson, was appointed interim manager
of Gibson's department. Troop was not opposed to
the Union. A day or two after Troop's appoint-
ment , Gibson facetiously told Troop that she had
run a personal errand on companytime. When
Troop gave Gibson a look of frustration, Gibson
assured him she was only kidding. Troop then
asked Gibson whether she had ever thought about
"keeping a low profile." Gibson replied that any-
thing to do with her union activities was her re-
sponsibility, and she would not do anything to
jeopardize Troop's job. Troop replied that he was
not worried about his job, but was thinking of hers.
When Gibson asked Troop to elaborate, Troop re-
plied: "Don't you think you should keep a low
profile for a while just for your job security. Just
lay low and stay right within the system. Be quiet
with it." Gibson expressed her disagreement with
Troop and explained that the "system" had inter-
ested her in the Union in the first place.
9 This conclusion is not affected by the fact, relied on by the judge,
that Dockrey's prohibition was made immediately after reference to other
clearly protected materials. There was no allegation and no finding that
Dockrey's reference to those other materials was unlawful.
i I agree with my colleagues that the Respondent unlawfully disci-
plined and discharged Gibson
7
My colleagues agree with the judge that Troop
threatened Gibson with unspecified reprisals for
her union activities. I disagree. I note at the outset
that it was Gibson, not Troop, who first interjected
the Union into the conversation, and it was Gibson,
not Troop, who returned to that subject. Indeed,
Troop, who was not opposed to the Union, never
mentioned the Union or Gibson's union activities at
any time during the conversation. Thus, to the
extent that (in the judge's words) "Troop delivered
what Gibson understood to be a warning from
[Troop] concerning her Union activities," any such
impression on Gibson was entirely the product of
her own fixation with construing Troop's remarks
as being directed at her union activities.
Moreover, the judge erred in applying a subjec-
tive standard-Gibson's understanding of Troop's
remarks-in analyzing whether these remarks had a
reasonable tendency to interfere with, restrain, or
coerce Gibson in the exercise of her union activi-
ties. It is well settled that in evaluating an employ-
er's conduct under Section 8(a)(1) of the Act, the
test is not whether the conduct was coercive in
actual fact (i.e., in the instant case, not what
Gibson may have actually felt or understood), but
whether the conduct in question had a reasonable
tendency, under the totality of the circumstances, to
coerce or intimidate.2 Applying this correct stand-
ard eschewed by the judge (and, apparently, by my
colleagues), I find that Troop's "low profile"
remark to Gibson did not have a reasonable tend-
ency under the instant circumstances to interfere
with, restrain, or coerce Gibson in the exercise of
her rights under Section 7 of the Act. More specifi-
cally, Troop was a newly appointed, low-level, in-
terim supervisor, a former hourly employee on
friendly terms with Gibson, and not opposed to the
Union. The conversation in question was initiated
by Gibson's facetious remark, and the interjection
of the Union into the conversation was entirely
Gibson's doing. Troop's "low profile" remarks
were prompted by Gibson's apparently cavalier at-
titude towards her job and took the form of a well-
intentioned personal suggestion. Under these cir-
cumstances, I find that Troop's remarks did not
violate Section 8(a)(1) of the Acts
' E.g., Amason, Inc, 269 NLRB 750 fn. 1 (1984); Fmrleigh Dickinson
University, 264 NLRB 725 fn. 1 (1982), Norton Concrete Co., 249 NLRB
1270, 1274 (1980)
8 The cases relied on by my colleagues and the judge in reaching a
contrary result are clearly inapposite . Jax Mold & Machine, 255 NLRB
942 (1981 ), unlike the instant case , involved an interrogation by a supervi-
sor about employee union activities In Jax , a foreman asked his friend
(an employee who was active in circulating a petition to withdraw sup-
port from the union) whether he (the employee) thought there was a
chance to get rid of the union. When the employee responded in the af-
firmative , the foreman told the employee that he (the foreman ) thought
Continued
8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I also do not agree with my colleagues that the
Respondent violated Section 8(a)(1) of the Act
when Clinic Administrator Daniel Dockrey told
Gibson that the distribution of materials such as the
cartoon in question (accurately described by my
colleagues) was not protected by the National
Labor Relations Act and could be regarded as
grounds for dismissal. Contrary to my colleagues, I
find that the General Counsel has not established
that Gibson's distribution of the cartoon was an ex-
ercise of protected activities.
My colleagues correctly point out that in finding
a violation of the Act in this regard, the judge er-
roneously failed to address the threshold issue of
whether the cartoon was protected by Section 7 of
the Act. In attempting to take up the judge's
burden on this aspect, my colleagues correctly
state that in order to fall within the protection of
the Act, the literature sought to be distributed must
relate to employee problems and concerns as em-
ployees and their interests in improving their work-
ing conditions.
Having correctly stated the law, my colleagues
fail totally in their attempt to apply it. Thus, with-
out any analysis of the facts whatsoever, my col-
leagues simply state "We find that the cartoon was
related to the employees' working conditions." The
cartoon, of course, makes no reference at all to em-
ployees, the Employer, the Union, or the clinic
itself. Any relationship between the cartoon and
working conditions would therefore have to be im-
plicit. But I find no such relationship, even implic-
itly, and I do not understand-and my colleagues
certainly do not explain-how the cartoon's refer-
ences to beating, kicking, lying, cursing, swindling,
exploiting, and ridiculing have any relationship
whatsoever to working conditions at the clinic. My
colleagues cite no evidence, and indeed there is
none, to show or even infer that there was so much
as an instance (much less a practice sufficient to
constitute a working condition) of such misconduct
"that would be the best thing that ever happened ." Without passing on
the question of whether I agree with the Board 's finding in Jax that the
above colloquy constitutes an unlawful interrogation , I find in any event
that the supervisory inquiry into and encouragement of antiunion activity
in Jax is different in kind and degree from Troop's innocuous remark to
Gibson in the instant case about keeping "a low profile."
Hanes Hosiery, Inc, 219 NLRB 338 (1975), also involved an interroga-
tion . A divided three-member panel of the Board reversed the administra-
tive law judge 's dismissal of the allegation and found instead that a fore-
man unlawfully interrogated an employee (with whom the foreman had a
"long, cordial work relationship") by asking her "a series of union-related
questions, each of which fed upon [the employee's] previous answer "
During the next 3 days, the foreman repeatedly asked the employee
about the union activities of another employee. Although I fully sub-
scribe to the well -reasoned dissenting opinion of Member Kennedy in
Hanes Hosiery (see Sunnyvale Medical Clinic, 277 NLRB 1217 (1985); and
Rossmore House , 269 NLRB 1176 (1984), affd 760 F .2d 1006 (9th Cir
1985)), the point here is that under any view of the facts in Hanes Ho-
siery, those facts are clearly-and materially-distinct from and inapposite
to the remark made by Troop to Gibson here
at the clinic. Indeed, Gibson herself testified that
the cartoon was inaccurate and untrue and bore no
relationship to her employment or any other em-
ployee's employment at the clinic. Thus, my col-
leagues' purported finding of protected activity is
both unsupported and unsupportable.4 I choose not
to join my colleagues in their extra-evidentiary
wanderings, and I therefore see no basis for finding
that the Respondent threatened Gibson with dis-
charge for distributing protected literature.
Finally, I do not agree with my colleagues or the
judge that the Respondent implicitly conditioned
lifting of a wage freeze on the cessation of union
activity.
The credited evidence shows that prior to the
organizing campaign, the Respondent had institut-
ed a wage freeze because of cash flow problems.
Gibson raised the subject during a conversation
with Dockrey and remarked that the employees
would like to see wages unfrozen. Dockrey replied
that the freeze would not be lifted "until the Union
question was resolved." Contrary to my colleagues,
I am unable to find in these circumstances that
Dockrey implicitly conditioned lifting the wage
freeze on the termination of union activities. The
conversation between Dockrey and Gibson oc-
curred 1 week after the Union filed a representa-
tion petition. Considered in light of the fact that
the Union had invoked the process of the Board to
determine the representation matter, I find that
Dockrey's statement was merely an acknowledge-
ment that the Respondent could not lift the wage
freeze during the pendency of the representation
proceeding.
It is well settled that neither granting nor with-
holding benefits during an election campaign is ille-
gal per se. Such conduct becomes illegal only if the
employer is found to be manipulating benefits in
order to influence employees' decisions during or-
ganizing campaigns.5 Here, there is no evidence
that the Respondent had in fact planned, prior to
the onset of union activity, to lift the wage freeze.
Thus, there are no grounds for inferring that the
Respondent was changing its plans in response to
union activity. Absent such evidence, I see no basis
4 My colleagues ' inferential house of cards is based on Dockrey's off-
hand remark that the cartoon was "defamatory ." This, say my col-
leagues, "constitutes a concession by the Respondent that it considered
(the cartoon] to be directed at the Respondent 's treatment of its employ-
ees " My colleagues thus attempt to build through Dockrey 's remark a
budge between the cartoon's humorous , albeit sarcastic, caption and
working conditions at the instant clinic That attempt simply amounts to
a finding of violations by a preponderance of the inferences rather than a
preponderance of the evidence
5 Schnadig Corp., 265 NLRB 147, 155 (1982); Travis Meat & Seafood
Co, 237 NLRB 213, 217-218 (1978), enfd. in pertinent part 653 F.2d 233
(6th Cir. 1980), Osco Drug, 237 NLRB 231, 232 (1978 ), Big John Super
Stores, 232 NLRB 134, 137-138 (1977)
TROVER CLINIC 9
for fording that the Respondent violated the Act in
this regard.6
Communications Workers of America, AFL-CIO
(Union) is admitted to be, and I find is, a labor organiza-
tion within the meaning of the Act.
6 See Lawson Co. v NLRB, 753 F 2d 471 (6th Cir 1985), NLRB v.
Service Garage , 668 F 2d 247 (6th Cir 1982), Village Thrift Store, 272
NLRB 572 (1983).
The cases relied on by my colleagues and the judge in reaching a con-
trary result are clearly inapposite. In Jax Mold & Machine, supra, the em-
ployer directly and expressly promised an employee that his "money
would come up considerably if he would vote 'no' on the strike and help
to destroy the Union " The instant case contains not even a hint of such
calculated manipulation of benefits in order to influence employee con-
duct against the Union Similarly, in World Wide Press, 242 NLRB 346
(1979), the employer changed its policy regarding ment wage increases
directly and concededly in response to the union organization campaign.
In the instant case , however, there is no evidence that the Respondent
had planned to lift its wage freeze, and thus there is no evidence on
which to find or infer that the Respondent changed its plans in response
to union activity
Engrid Emerson Vaughan , Esq., for the General Counsel.
James U. Smith III, Esq., and W. Kevin Smith, Esq.
(Smith and Smith), of Louisville, Kentucky, for the
Respondent.
Ronald M. Harleman , of Nashville, Tennessee , for the
Charging Party.
DECISION
STATEMENT OF THE CASE
STEVEN M. CHARNO, Administrative Law Judge. In
response to a charge filed June 28, 1982, a complaint was
issued on August 4, 1982, which alleged that Trover
Clinic (Respondent) had violated Section 8(a)(1) and (3)
of the National Labor Relations Act by threatening and
interrogating its employees and by discriminatorily warn-
ing and discharging employee Donna Gibson. Respond-
ent's answer denied the commission of any unfair labor
practice.
A hearing was held before me at Madisonville, Ken-
tucky, on February 1 and 2, 1983.1 At the hearing, the
General Counsel's motion to amend the complaint to add
an alleged violation of Section 8(a)(1) concerning a
threat of discharge was granted over Respondent's ob-
jection. Briefs were filed by the General Counsel and the
Respondent under extended due date of March 21, 1983.
FINDINGS OF FACT
1. JURISDICTION
Respondent is a partnership organized under the laws
of Kentucky, which operates primary outpatient health
care centers in that State. Its offices and principal facility
are located in Madisonville, Kentucky. During the 12
months preceding issuance of the complaint, a represent-
ative period, Respondent, in the course and conduct of
its business operations, derived gross revenues in excess
of $500,000 and purchased and received products, goods,
and materials valued in excess of $50,000 from points
outside Kentucky. It is admitted, and I find, that Re-
spondent is an employer engaged in commerce within
the meaning of the Act.
i Certain errors in the transcript are noted and corrected.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Donna Gibson was hired by Respondent to work in its
patient accounts department on February 19, 1981, and
was discharged from that department on May 26, 1982.
Between the time she was hired and the onset of the
union organizing campaign in March 1982, she was
counseled only once concerning her performance. This
occurred at the conclusion of her 90-day probationary
period when Robert McClintock, the manager of the pa-
tient accounts department, told her that she had been too
aggressive in her attempts to get patients to pay their
bills. Gibson received no warnings or reprimands prior
to the organizing campign.2
Gibson attended the first meeting and joined the union
organizing committee on March 11, 1982.3 Thereafter,
she was "the one that got people in the Business Office
and the Insurance Department interested and to come
out to the meetings." Ultimately, this function was for-
malized, and Gibson was appointed a department cap-
tain. Her appointment was announced to the employees
in the patient accounts department, but not directly to
Respondent' s management . Like other members of the
organizing committee, Gibson solicited and obtained sig-
natures on union authorization cards, wore union insig-
nia, and distributed union literature. The latter activity
was observed by Respondent's personnel director, Frank-
lin Stevenson.
Gibson, who was thought by other union adherents to
be one of its more vocal supporters , also engaged in ac-
tivities which were not participated in by other members
of the organizing committee. She posted union parapher-
nalia and literature in her office, which came to the at-
tention of Respondent' s management . When Respondent
announced that all union materials would have to be ap-
proved by Stevenson before they could be posted on Re-
spondent's bulletin board, Gibson volunteered to obtain
the requisite approvals. She was the only employee to
approach Stevenson in this capacity prior to the time of
her discharge,4 and the president of the Union was un-
2 These findings are based on Gibson 's unrebutted testimony . The evi-
dence submitted by Respondent demonstrates that McClintock was not
averse to counseling , warning, reprimanding , or discharging the employ-
ees under his direction when such action was warranted . Gibson's per-
sonnel file does not indicate that any such disciplinary actions were di-
rected at her during this period , a fact which corroborates her testimony.
The testimony of Supervisor Jeanne Henshaw and Controller Fayrene
Fuller that they communicated complaints concerning Gibson to McClin-
tock does not appear material for two reasons There is no evidence that
McClintock found these complaints to be true, of substance , or without
explanation . Further, there is no evidence that the alleged complaints
were ever discussed with Gibson
All dates hereinafter are in 1982 , unless otherwise specified.
Gibson and Leeta Jones, the Union's president , so testified . Steven-
son, while admittedly "foggy" on the subject , testified that Gibson was
responsible for only 2 or 3 of the 8 to 10 attempts made to secure ap-
proval of union postings prior to May 26 . Stevenson was unable to
supply any further information concerning the alleged attempts made by
Continued
10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
aware of any other employee who dealt directly with
Respondent's management on behalf of the Union prior
to May 26.
On April 9, two of the Union's International represent-
atives and approximately 35 employees congregated at
the Clinic to present a letter requesting recognition of
the Union to Respondent 's management. Just before 8
a.m., one of the representatives , flanked by Gibson and
Leeta Jones (who later became the Union 's president),
and followed by the other employees , approached James
Claysmith, Respondent's associate administrator . Clays-
mith refused to shake hands and further refused to
accept the letter. On April 12, the organizing committee
prepared a handbill informing Respondent 's employees
that the Union had cards from a majority of employees,
the letter refused by Claysmith had been mailed, a repre-
sentation petition would soon be filed with the Board,
and the employees should be on guard against Respond-
ent's propaganda. The same day, Gibson presented this
handbill to Stevenson to be approved for posting. The
following day, Gibson asked why she had heard nothing
concerning the handbill , and Stevenson responded that
Respondent 's lawyers were examining it.
B. The Littlepage Incident
On April 12, Gibson was relieving the receptionist in
the patient accounts department for lunch when she was
approached by two patients, Barbara Littlepage and her
daughter. Littlepage raised two problems, the first of
which Gibson resolved to Littlepage's apparent satisfac-
tion. The second problem concerned a debit balance of
approximately $300 in the account of Littlepage's de-
ceased aunt. Littlepage asserted that she had made a pay-
ment of $300 which the Clinic had not credited. Gibson
retrieved the account on her display screen and assured
Littlepage that the $300 check had been credited. When
Littlepage still insisted that the check had not been cred-
ited, Gibson referred Littlepage to the account on the
display screen. During the discussion, Gibson attempted
to explain that the debit had been transferred from a
Medicare account, but Littlepage cut Gibson off.8
Gibson offered to have the account audited , and Little-
page responded that she would figure it out for herself.
Gibson replied that she or another employee would try
to explain the account further if Littlepage still had a
problem.
Littlepage left the patient accounts department, went
to the lobby reception area , complained that she had a
problem , and was referred to Respondent's controller,
employees other than Gibson during that period . Based on Stevenson's
admitted and demonstrated weakness of recollection and on my observa-
tion of the demeanor of all three witnesses as they testified , I credit
Gibson and Jones over Stevenson on this point.
5 It is by no means clear , as Respondent contends on brief, that Gib-
son's attempted explanation of the debit balance was in error. It is uncer-
tain from the record whether Littlepage was told that it was a residual
transferred from a Medicare account or a direct patient billing that Medi-
care did not cover. If, as Controller Fuller testified , resort to materials
beyond the display screen was required to ascertain the precise cause of
the debit. Gibson was not in a position to perform the required research
because she could not leave the reception desk until the receptionist re-
turned from lunch.
Fayrene Fuller . 6 Littlepage, who was visibly upset, com-
plained to Fuller that an employee in the patient ac-
counts department had not sufficiently resolved a prob-
lem and had treated Littlepage in an arrogant and rude
manner. Fuller went to the work location Littlepage de-
scribed and found Gibson on duty. Fuller asked for a
copy of the account, and Gibson replied she had just
helped Littlepage with that account . Fuller responded
that Littlepage was not satisfied and again requested the
account. Referring to the display screen , Gibson showed
Fuller that Littlepage's check had been credited to the
account. While Fuller stayed in the reception area,
Gibson went and made a copy, which she gave to
Fuller.? Fuller returned to her office and called in Asso-
ciate Administrator Claysmith, who listened to Little-
page's complaint . 8 Fuller then asked Littlepage if the
Clinic could audit the account and get back to her the
following day. Littlepage accepted the suggestion and
departed.
At approximately 4 p.m. that day, Gibson was sum-
moned to Claysmith's office. Gibson, Claysmith, Fuller,
and McClintock were present at that meeting. Claysmith
reiterated the substance of the Littlepage complaint. He
then accused Gibson of not wanting to help Littlepage
and of being rude and abusive and indicated that Re-
spondent would not tolerate a patient being treated in
that manner. Gibson denied that she had displayed an
improper attitude and pointed out that she had offered to
conduct an audit or refer Littlepage to another employ-
ee. Claysmith indicated that Gibson's efforts were beside
the point because she had made the patient mad . Gibson
said that Claysmith had made up his mind before talking
with her. Claysmith stated that he knew McClintock had
counseled Gibson many times about being rude. Gibson
responded she had been counseled only once by McClin-
tock, a fact which McClintock confirmed. Claysmith
suggested that Gibson might wish to transfer to another
6 Fuller testified that because she had received a large number of com-
plaints concerning the patient accounts department, she ordered the re-
ception desk in February or March to refer any new complaint concern-
ing that department to her. None of the alleged complaints were docu-
mented at the hearing Fuller subsequently testified as Respondent's wit-
ness that she received all but two of the alleged complaints in April and
May. In addition , Fuller's description of the referral by the lobby recep-
tionist does not comport with the existence of a standing order to refer
complaints Given her inconsistent testimony and based on my observa-
tion of her demeanor while on the stand, I do not credit Fuller's explana-
tion.
7 Gibson so testified. Fuller stated that Gibson had given Littlepage a
copy of the account and that Gibson had admitted telling Littlepage to
go home and figure it out Fuller's version of the conversation is contro-
verted by the fact that no copy of the account was available until, tempo-
rarily relieved by Fuller at the reception desk, Gibson was able to leave
the area and make one . That Gibson did so is undisputed . Fuller's probity
was also rendered suspect by her repeated , and less than candid, attempts
to portray Gibson as a poor employee. For example , Fuller, in response
to a question by Respondent's counsel , acknowledged that she had re-
ceived a specific complaint about Gibson from employee Joyce Barton
and had referred that complaint to McClintock in January or February.
In response to questioning from the bench , Fuller later admitted that
Barton had not complained about Gibson For the foregoing reasons and
based on my observation of Gibson and Fuller while they testified, I do
not credit Fuller's version of the conversation.
a For the reasons set forth in fn 7, supra, I do not credit Fuller's ex-
planation that she called in Claysmith because of complaints about the
patient accounts department
TROVER CLINIC
department and stated that Respondent was going to
document the incident in Gibson's personnel file.9
This meeting differed from Respondent's normal disci-
plinary procedure in two significant respects. First, no
attempt was made to ascertain whether Gibson had an
explanation or could offer any mitigating circumstances
relating to the complaint.10 The record discloses that
other patient complaints of improper treatment by Clinic
employees resulted in investigations in which the accused
employees were asked to offer explanations. In at least
two such instances, no discipline was imposed as a result
of such explanations. Second, in a direct departure from
Respondent's demonstrated practice, a complaint about
an employee was not referred to and handled by the em-
ployee's immediate supervisor.""
On April 13, Claysmith dictated his version of the
Littlepage incident in the form of a letter of complaint
addressed to the Clinic. After it had been typed, Fuller
took the "letter" to Littlepage's residence and secured
the signatures of Littlepage and her daughter. Fuller was
unaware of any other occasion on which Respondent
had solicited such a statement from a patient.12
During the afternoon of April 13, Gibson was again
summoned to Claysmith's office. Fearing that she would
be disciplined, Gibson asked employee Beth Musgrove to
accompany her as a witness. Claysmith informed Gibson
she had no right to a witness and, when Gibson persist-
ed, both Claysmith and McClintock stated that Gibson
would not be disciplined.13 Musgrove then departed.
9 Findings concerning what transpired in the meeting are based on
Gibson 's generally unrebutted testimony Fuller testified that Gibson was
not told that she would receive a warning during the conversation To
the extent that this testimony may be thought to controvert my finding in
the accompanying text , I do not credit it based on Fuller 's statement to
the contrary in a July 21 affidavit, her later testimony that she was
unsure whether Gibson received a warning on April 12 or 14, and my
observation of her demeanor while she testified.
10 Given the accusatory tone adopted by Claysmith, I reject Fuller's
characterization of the meeting as investigatory in nature
11 Fuller testified that she handled the matter because McClintock had
not been performing his job effectively and was about to be terminated
McClintock was, however, required to be present and to sign Gibson's
subsequent reprimand, and Gibson's discipline was completed before
McClintock 's termination Claysmith's participation was never cogently
explained , and there is no evidence that Respondent 's associate adminis-
trator was ever involved in a comparable disciplinary matter Given the
discussion of Fuller's credibility in the preceding notes, her often incon-
sistent and sometimes evasive testimony, and my observation of her de-
meanor, I am dubious of this explanation
12 Respondent ..ppears to contend on brief that the "letter" was solicit-
ed because of Respondent's concern over the union organizing campaign
However, when Respondent discharged Linda Cole (the only other em-
ployee dismissed during the organizing campaign), it did not solicit a
statement at or prior to the time it discharged her I infer from these facts
that Gibson and the union organizing campaign were closely linked in
the minds of Claysmith and Fuller
13 Gibson so testified Fuller's testimony that Musgrove arrived with
Gibson on April 14, not April 13, was directly contradicted by Fuller's
July 21 affidavit Gibson's version is supported by Charlotte Greenlee, as-
sistant manager of the patient accounts department, who testified that she
accompanied Gibson to Claysmith's office on April 14 and Musgrove
was not with them For the foregoing reasons, I do not credit Fuller I
therefore conclude that Gibson's reference in the April 14 "Employee
Counseling Report" to being denied a witness refers to the meeting on
April 13
11
Claysmith displayed the statement solicited from Little-
page and informed Gibson that, although that "letter"
was sufficent grounds to discharge her, Respondent was
going to give her another chance. Claysmith then
handed Gibson a reprimand on an "Employee Counsel-
ing Report" form. Gibson protested the allegation on the
form that she had been talked with "on previous occa-
sions regarding her handling of patients." Although the
allegation was not deleted, the phrase "having counseled
her on one previous occasion regarding a similar specific
complaint" was added.14 Gibson added her comments to
the form but refused to sign the reprimand on the
grounds that it misrepresented her employment record as
well as the Littlepage incident. A copy of the reprimand
was given to Gibson, and a copy was placed in her per-
sonnel file.
Also on April 13, Claysmith called employee Lori
Young Gamblin into his office and asked her to sign a
complaint against Gibson. At approximately 5 p.m. on
April 12, Gamblin observed Gibson making an obscene
gesture in the direction of the Clinic administrator's
office and swearing in a conversational tone. No one else
was present in the area, and Gibson did not see Gamb-
lin.15 Gamblin, who was "nosey" about what might
have provoked Gibson's behavior, related the incident to
her supervisor, Jeanne Henshaw, and asked her what had
happened to upset Gibson. Apparently as a result of talk-
ing with Henshaw, Claysmith asked Gamblin to sign the
complaint. When Gamblin refused to do so, a statement
concerning the incident was signed by Henshaw and
placed in Gibson's personnel file. That file contains an
additional memorandum dated April 13 concerning an-
other instance of Gibson's alleged misconduct, which
was signed by employee Anne Cunningham. The prove-
nance of this memorandum is not apparent from the
record, and no investigation of its accuracy was made
before it was placed in Gibson's file."s Gibson was not
informed of the two memoranda until immediately prior
to her discharge.
Because McClintock was absent on the morning of
April 14, Claysmith called Greenlee and asked her to
bring Gibson to his office. Shortly after 8 a.m., Gibson
met with Claysmith, Fuller, and Greenlee. Claysmith
handed Gibson an "Employee Counseling Report" dated
April 14, which he had signed. The only new informa-
tion contained in that document was (1) a statement that
both it and the Littlepage "letter" would be placed in
Gibson's personnel file, and (2) a warning that "any fur-
ther misconduct on her part and she would be summarily
discharged," which appeared in the "corrective action"
14 Gibson's account of this interchange is corroborated by the fact that
the phrase in question is typed at a different angle from the rest of the
text
15 Based on my observation of the demeanor of both witnesses, I
credit Gambhn's testimony to this effect over Gibson's denial Taking
into account the relatively trivial nature of the incident and the fact that
Gibson believed she was alone, I believe it unlikely that she would recall
the situation In any event , I find Gibson to be a generally credible wit-
ness, and it is neither improper nor uncommon for the trier of fact to
believe some, but not all, of a witness' testimony See NLRB v Universal
Camera Corp, 179 F 2d 749, 754 (2d Cir 1950)
16 The only evidence on this subject, other than the memorandum
itself, was Gibson's testimony which was both credible and exculpatory
12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
section of the form. 17 Gibson was given an opportunity
to add her comments to the document , which she ac-
cepted . Inasmuch as this "Employee Counseling Report"
constituted Respondent 's first notice to Gibson that she
was to receive what amounted to a "final warning" be-
cause of the Littlepage incident , I find that the April 14
meeting and document were disciplinary in nature. t s
C. Alleged Threat by Troop
McClintock was discharged as manager of the patient
accounts department on April 15, and Jay Troop was ap-
pointed interim manager on April 19. Troop had been
employed by Respondent as an auditor for 2 months
prior to his appointment . During his tenure as an hourly
employee, Troop and Gibson were on friendly terms,
and Troop was not opposed to the Union. Some 1 to 3
days after Troop was named interim manager, he and
Gibson had a conversation in the reception area of the
patient accounts department. Gibson stated that she had
just run a personal errand on company time and, after
Troop acquired a frustrated look, she explained that she
was joking. Troop then asked whether Gibson ever
thought "about keeping a low profile." Gibson respond-
ed that anything to do with her union activities at the
Clinic was her responsibility, and she was not going to
do anything to jeopardize Troop's job. Troop responded
that he was not worried about his job, but was thinking
of hers. In response to Gibson's request for more infor-
mation, Troop stated:
Don't you think you should keep a low profile
for a while just for your job security. Just lay low
and stay right within the system. Be quiet with it.
Gibson replied in the negative and explained the
"system" was what had interested her in the Union in
the first place.
D. The April 23 Meeting
On the morning of April 23, the clinic administrator,
Daniel Dockrey, had a message delivered to Gibson to
come to his office."" He did so because he had been in-
17 Fuller's attempt to characterize this form as "documentation of .. .
the disciplinary action the day before" is significantly weakened by her
subsequent inability to remember when Claysmith warned Gibson that
further misconduct would result in summary dismissal . In addition,
Fuller's testimony is directly controverted by Gibson's unrebutted ac-
count of what did occur during the April 13 meeting . For these reasons,
as well as those set forth previously , I credit Gibson over Fuller on this
point.
18 Both Stevenson and Fuller conceded that it was impossible to tell
from the face of an "Employee Counseling Report " whether it chron-
icled discipline or nondisciplinary counseling . They testified that the em-
ployee receiving the report would be told which circumstance applied.
The idea of an employer of Respondent 's sophistication going to the
trouble of documenting a personnel action with a report which does not
disclose what action was taken defies credulity To the extent that this
testimony may be thought to support Respondent 's position that no disci-
plinary action took place on April 14, 1 reject it.
19 Dockrey and Stevenson placed this incident on April 23, while
Gibson testified that it took place I week earlier , on April 16 . I believe
Dockrey and Stevenson to be correct.
formed by an unidentifiable individual that Gibson had
posted union paraphernalia in her work area.20 Prior to
Gibson 's arrival , Stevenson entered and stated that he
believed Gibson had used a Clinic copying machine for
the "reproduction of material disseminated by Union or-
ganizers."21
Gibson arrived around 9:30 a.m. and met with Dock-
rey and Stevenson. Dockrey instructed Gibson to
remove two items from her work area: a bumper sticker
stating "I'm Union and Proud of It"22 and an "organiza-
tion chart." Stevenson testified that the latter item could
"be interpreted as derogatory to Respondent."23 After
the meeting, Gibson carried out Dockrey's instructions.
At the hearing , Stevenson explained that Respondent had
an "oral tradition" forbidding offensive or controversial
office decor in patient service areas. He further explained
that normally an employee 's immediate supervisor would
determine what constituted appropriate decor. Although
Stevenson felt that Troop's inexperience would probably
have caused him to refer the matter to his immediate su-
perior, Fuller, there is no evidence that Troop actually
did so. Nor is there any evidence on the question of why
the matter was not handled by Fuller.
Dockrey also informed Gibson of Respondent's rule
forbidding the use of Clinic copiers for nonbusiness pur-
poses,24 "as well as the particular inappropriateness of
reproducing union-distributed material." The material
Gibson had copied was a cartoon showing a nervous
looking character, which bore the caption: "I've been
beaten, kicked, lied to, cussed at, swindled, taken advan-
tage of and laughed at, but the only reason I hang
around this place is to see what happens next!" Dockrey
indicated that the cartoon, which he described as "bla-
tantly defamatory," would not be posted on Respond-
ent's bulletin board and asked Gibson if she had distrib-
uted it. Gibson replied in the negative. Dockrey told
Gibson that the distribution of materials, such as the car-
toon, "is not protected activity by the NLRB or anyone
else, and can be regarded as grounds for dismissal."25
20 Dockrey also testified of his "understanding," presumably obtained
from the same unidentifiable individual , that Gibson had refused to
remove the paraphernalia when asked Because the record shows that
Gibson consistently complied with every management request concerning
her union activities, I reject Dockrey 's hearsay testimony.
Y1 Gibson testified that she made a single copy to submit to Stevenson
for bulletin board approval. Although Stevenson did not observe Gibson
making multiple copies, he assumed that she did so because of the
number setting he later observed on the copying machine.
84 It is unclear whether Dockrey believed this item to be inappropriate
because it was a bumper sticker or because it was so "controversial" that
it would upset patients
28 Stevenson so testified on two occasions , and Dockrey did not men.
tion the chart at all during his testimony It is difficult to imagine a situa-
tion where union campaign material could not be "interpreted as deroga-
tory" by the company being organized. Accordingly , I find that Re-
spondent 's assertion on brief that the chart was shown by unrebutted tes-
timony to be "derogatory and disparaging to Clinic" lacks record sup-
port.
24 Stevenson conceded that "there may be occasions where a one
sheet item might be allowed to be copied."
88 Dockrey's quoted language in the above findings was drawn direct-
ly from Stevenson 's April 26 memorandum , which Stevenson testified
was prepared to provide a record of what occurred in view of the "ten-
sions" generated by the union organizing campaign . Dockrey's statement
Continued
TROVER CLINIC
Dockrey told Gibson that if she had questions regarding
specific material, she should consult the Union's attorney
"for your own safety."
Finally, pursuant to a general discussion of what
Gibson hoped to accomplish through the Union, she
made reference to the wage freeze which Respondent
had instituted due to cash flow problems prior to the
commencement of the organizing campaign . Gibson indi-
cated that Respondent's employees would like to see
wages unfrozen. Dockrey responded that the freeze
would not be lifted until the union question was re-
solved.28
On April 26, Stevenson prepared a memorandum of
the meeting, which was addressed to Fuller and cap-
tioned "Corrective Contact with Donna Gibson, Patient
Accounts Clerk." Stevenson admitted that he felt a need
for a formal statement of what had occurred on April 23
because of the organizing campaign . A copy of the
memorandum was placed in Gibson's personnel file.
E. Alleged Interrogation by Troop
Employee Schyrel Osborn began working for Re-
spondent on January 11. Approximately 1 week after
Osborn completed her 90-day probationary period, she
was given a union button by Gibson. As Osborn was
walking to the patient accounts department between 4:30
and 4:45 p.m. that day, she heard Fuller comment to
Troop: "Jay, you've lost another one." Troop later en-
tered Osborn's office, where Osborn, Greenlee, and an-
other employee were putting on their coats, and said,
"Girls, turn around." In response to a chorus of "whys,"
Troop said: "Fayrene just came down and told me that I
had another one in this department wearing buttons.
Now, Schyrel, why?" Osborn replied, "For job securi-
ty."27 After the employees had directed some bantering
comments at Troop, everyone departed. The entire inter-
change took place without any evidence of hostility, and
Osborn continued to wear her union button until Gibson
was discharged.
F. Gibson's Discharge
Throughout May until her discharge, Gibson contin-
ued her highly visible support of the Union and her
highly vocal espousal of employee rights in front of Re-
spondent's management . On May 3, Fuller instructed
Gibson to remove a union button, which bore the legend
in accompanying text not only appears in the memorandum , but was
twice testified to by Stevenson on the stand Dockrey denied making this
statement, but his recall of what transpired on April 23 was demonstrably
weak . For example , Dockrey did not recall who had informed him that
union paraphernalia was displayed in Gibson 's work area and his version
of the meeting totally omitted reference to the "organization chart " For
the foregoing reasons and based on my observation of their respective de-
meanor while testifying , I credit Stevenson over Dockrey
26 Gibson 's testimony to this effect on both direct and cross-examina-
tion was consistent, straightforward, and cogent . Dockrey denied having
made the comment Significantly, Respondent 's questioning of Stevenson
concerning the April 23 meeting never touched on this subject . For the
foregoing reasons and based on my observation of Gibson and Dockrey
while they were on the stand , I credit Gibson over Dockrey.
27 Greenlee and Gibson , who demonstrated a detailed recollection of
what occurred , so testified Osborn , whose recall of the incident was
sketchy, believed she had said, "Because I wanted to " I credit Gibson
and Greenlee over Osborn
13
"The Snake Pit Supports the CWA," to avoid offending
patients.28 Gibson did so, and Fuller wrote a memoran-
dum concerning the incident for Gibson's personnel file.
On May 10, Robert Guy was hired as the new manager
of the patient accounts department, and Troop became
the assistant manager . When Respondent distributed a
new employee handbook around May 19, Gibson at-
tempted to invoke the handbook's grievance procedure
over her April discipline. Thereafter, Gibson spoke suc-
cessively with Troop, Guy, and Stevenson about the
matter and caused Troop to write a memorandum to
Guy and Guy, a memorandum to Claysmith. On May 25,
she alerted Troop to the fact that antiunion campaigners
were encroaching on worktime, and she carried her co-
workers' complaint concerning a change in lunch and
break schedules to Troop on the morning of May 26.
One of Gibson's duties at the time of her discharge
was to supply itemized statements to patients on request.
In order to generate an itemized statement, a request
form was filled in by the patient accounts department
and submitted to the data processing department, where
the information on the form was keypunched by one of
four keypunched operators.29 If the necessary informa-
tion was correctly entered on the request form and cor-
rectly keypunched, an itemized statement would be gen-
erated and returned to the patient accounts department
within a week to 10 days.
Because the employees in the patient accounts depart-
ment who prepared the request forms in 1981 had "not
been getting a lot of the statements" they had requested,
the requesting function was consolidated in a single indi-
vidual, Kelly Menser, sometime between July and Octo-
ber 1981.30 Menser, who was in charge of requesting
itemized statements until mid-December 1981, had been
required to submit second and third requests for some
statements before she received them.91 At the very end
of December or the beginning of January, Gibson was
assigned the duty of requesting itemized statements. Nei-
ther Gibson nor any other employee in the patient ac-
counts department was ever given training in how to fill
out the request forms. McClintock explained to Gibson
that he did not know how to fill out the forms and in-
structed her to secure her predecessor's old requests and
adopt Menser 's methodology.
Gibson initially experienced some difficulty in getting
itemized statements in response to the forms previously
submitted by Menser, 3 2 and this difficulty continued
28 Gibson testified without contradiction that "the snake pit" was a
term used by Fuller to refer to the patient accounts department
29 Although there were nine such operators , Data Processing Supervi-
sor Henshaw testified that only four handled requests for itemized state-
ments
30 Greenlee, the assistant manager of the patient accounts department,
credibly so testified.
31 Greenlee, whose position would cause her to be aware of this situa-
tion, credibly so testified . To the extent that Henshaw's testimony that
she was unaware Menser had problems requesting statements may be
thought to be inconsistent with Greenlee's, I do not credit Henshaw
based on my observation of her demeanor while on the stand . In addi-
tion, there is no evidence that Henshaw would have had reason to know
of Menser's problems . Indeed , there is no reason to believe that Henshaw
became aware that Gibson was having similar problems until Gibson
brought the matter to Henshaw's attention
32 Gibson and Greenlee so testified
14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
when Gibson began submitting her own requests. Be-
tween January and the time of her discharge, Gibson re-
ceived some of the itemized statements she requested,
but did not receive others. The record reveals several
factors which explain Gibson's failure.
First, the form itself is confusing. Although it is used
by both the insurance department and the patient ac-
counts department to request statements , the instructions
and format of the form concerning the time period for
which a statement is being requested related solely to the
insurance function. Thus, the "from date" and "to date"
sections of the form contain two boxes in which the
month is to be entered, two boxes for the day of the
month and a fifth box designated "YR." If one follows
the form's instuctions concerning the entry of dates in
these boxes, an itemized statement cannot be generated.
The correct procedure to request an itemized statement
requires one to enter two digits for the month in the first
two boxes, to enter the last two digits of the year in the
next two boxes, and to ignore the "YR" box.
Second, it was shown that during the period Gibson
requested itemized statements, three of the four operators
who keypunched the requests for these statements did
not know the correct procedure for doing so and at least
two of them incorrectly keypunched requests by adding
the day of the month, even when that information did
not appear on the request form.33 In contrast, the re-
maining operator occasionally corrected erroneously
filled out requests when she keypunched them.34 Gibson
was unaware of either of the modifications which were
being made in the data processing department . Thus, the
fact that Gibson did or did not receive a particular item-
ized statement would not allow her to determine wheth-
er she had properly prepared the corresponding request
form.35
It is uncontested that Gibson's confusion why she was
not receiving some of the statements she had requested
caused her to approach Data Processing Supervisor Ren-
shaw on two or three occasions and McClintock on sev-
eral additional occasions to ascertain whether she was
making any errors in preparing the forms . 36 In response
as Keypunch operator Deborah Johnson testified that when Henshaw
asked the operators in May whether they knew how to keypunch an
itemized statement request, Sherry Tomblmgson (nee Kirkwood) and
Lori Young Gamblin answered that they did not. Tomblingson testified
that she had incorrectly added the day of the month when keypunch re-
quests for itemized statements for almost a year. Johnson further testified
that she had to tell operator Faye Green not to add the day of the month
when keypunching a request for an itemized statement shortly after
Gibson was discharged.
84 Johnson so testified.
as In this context , Henshaw 's instruction to consult the "Insurance
Report Register" to determine whether a mistake had been made in pre-
paring a request form is somewhat iromc Gibson knew that mistakes
were being made What she needed to know , that is, how to correct
those mistakes , could not be learned from the register
ss The content of Gibson's conversations with Henshaw is disputed
Henshaw testified that she pointed out Gibson 's obvious errors on each
occasion , and that Gibson corrected them and subsequently received all
the itemized statements requested . This testimony is suspect for a number
of reasons. First, it is highly unlikely that Gibson would have repeatedly
received all the requested statements given the confusion over keypunch-
mg requests that existed among the employees under Henshaw's supervi-
sion Second , it was clearly not in Henshaw 's interest to admit that one of
the problems in generating itemized statements was attributable to her im-
properly trained employees , rather than to Gibson . Third , Henshaw testi-
to feedback from several sources , some of which was
shown to be erroneous, Gibson changed her method of
inserting date information on the request forms on at
least two occasions . It is undisputed that between Janu-
ary and the date of her discharge, Gibson made two
types of errors in preparing the forms. First, she entered
the wrong insurance company number until she was in-
formed of the error.37 Second, she incorrectly entered
date information on the request forms . Gibson 's succes-
sor in requesting itemized statements , Gloria Parker, Also
prepared the forms incorrectly.SB
In response to patient complaints concerning the non-
receipt of itemized statements , 39 Guy prepared a memo-
randum on May 24 telling the patient accounts depart-
ment that itemized statements should be provided as
quickly as possible. The following day, Gibson and
Troop came to Guy's office. Gibson explained that she
had primary responsibility for requesting itemized state-
ments, showed Guy 35 request forms (some of which
had been submitted to the data processing department as
many as four times) and told him that she had not been
able to help the delay. Guy took the request forms to
Henshaw, who informed him that Gibson had incorrect-
ly entered the date information and that this was a recur-
ring mistake.40 Guy returned and gave the forms to
feed about a purported conversation in late January when she allegedly
corrected Gibson's incorrect date information , but she completely omit-
ted mention of the occasion in early February, testified to by Gibson and
Johnson, when neither Henshaw nor Johnson were able to find any
errors in Gibson 's request forms. The timeframe is such that it appears
probable that all three witnesses are describing the same conversation. Fi-
nally, Henshaw 's testimony is rendered suspect by the alacrity with
which she apparently reported the relatively trivial incident involving
Gibson and Gamblm to Respondent 's top management . For the foregoing
reasons and based on my observation of her demeanor while on the
stand , I do not credit Henshaw's testimony concerning Gibson 's perform-
ance.
ar When Gibson was informed of this error and by whom are disputed
but immaterial . There is no evidence that Gibson had to be informed
more than once , and Guy 's testimony (concerning his reference to the
"Insurance Report Register") establishes that Gibson was not making this
en or at the time of her discharge
as Johnson credibly so testified.
89 Guy, Dockrey, and Fuller testified to the effect that such com-
plaints began at the time Gibson began requesting itemized statements,
grew to astounding proportions in April and May, and ceased on Gib-
son's discharge . As noted above , Fuller's testimony on this subject was
internally inconsistent In addition , Fuller's testimony that she referred 15
complaints to the patient accounts department over the months of April
and May is controverted by the facts that she referred no complaints to
Troop and Guy received no referrals Thus, no complaints could have
been referred after April 15 Dockrey, who had difficulty on direct exam-
mation remembering the number of complaints he received , admitted on
cross-examination that he was not sure how many related to itemized
statements. There are also inconsistencies between Dockrey 's testimony
and that of Fuller . With the exception of three telephone complaints re-
ceived by Guy on May 24 , the purported complaints are without docu-
mentations, notwithstanding Dockrey's testimony that a number were
embodied in letters. For the foregoing reasons and based on my observa-
tion of their demeanor as they testified , I do not credit the testimony of
these witnesses on the timing and extent of patient complaints concerning
itemized statements.
40 Guy did not understand the mechanics of requesting itemized state-
ments and testified on two occasions that request forms which contained
errors were returned by the data processing department to Gibson to be
corrected.
TROVER CLINIC
Troop. Troop, in turn, gave them to Gibson, who cor-
rected them in accordance with Troop's instructions and
resubmitted them to the data processing department.
On May 25, Guy prepared a memorandum to Clays-
mith recommending Gibson's termination.41 The memo-
randum discussed Gibson's problems with itemized state-
ments and erroneously stated that she had given Guy
"approximately 50" request forms and that incorrectly
prepared forms had been returned to her since January
with the errors indicated. The memorandum concluded:
"This, in conjunction with violations and occurrences of
the past, should compel us to promptly terminate
Gibson, and I recommend we do so at once."
The following day Guy discussed the memorandum
with Claysmith, and Claysmith noted on the memoran-
dum: "After review of Donna Gibson's total employment
record I concur with Bob Guy's recommendation." Guy
informed Stevenson of the matter and, thereafter, Guy
and Claysmith discussed the recommendation with
Dockrey, who was "reviewing terminations because of
Union activities." Dockrey concurred in Guy's recom-
mendation . Guy then called Gibson into his office and
informed her that she was being discharged because of
patient complaints concerning itemized statements. The
"Department Termination of Employment Report" filled
out by Guy at that time listed the cause of discharge as
"patient complaints and sub-standard job performance."
Guy, Fuller, and Stevenson all testified that Gibson's dis-
missal was based in part on the Littlepage incident.
In a May 31 letter to the Kentucky Division of Unem-
ployment, Stevenson argued that Gibson was discharged
for cause, citing the problem with itemized statements,
the Littlepage incident, the Cunningham memorandum,
other unspecified complaints about patient treatment, and
"other instances of misconduct."
Respondent's records demonstrate that its clerical em-
ployees are normally counseled and, absent improve-
ment, then reprimanded for unsatisfactory work perform-
ance comparable to Gibson's. Thus, the personnel
records of employees Peggy Carter, Betty Merrell, and
Irene Worrell show that they were counseled or given
verbal warnings for unsatisfactory work performance
which consisted of excessive errors or untimely work
completion. Guy determined the degree of discipline
given the latter two employees. Employee Beth Mus-
grove was given a written reprimand without prior
counseling when her clerical work was "allowed to back
up as far as 3 months." Respondent normally discharged
clerical employees only after they have been warned that
their job performance is unsatisfactory and they have
41 Guy's testimony that his unfamiliarity with Gibson's work record
caused hun to review her personnel file on May 25 is directly contradict-
ed by his admitted review of that file on May 20 in connection with Gib-
son's contemplated grievance over her April discipline . Guy's attempt to
equate the "negative patient relations impact " of incorrectly processing
request forms with the abuse and rudeness alleged to have occurred in
the Littlepage incident is disingenuous at best Indeed , Guy was defensive
and appeared embarrassed when he testified to this effect. However strin-
gent Respondent 's policy on patient treatment, erroneous work perform-
ance does not constitute the type of "misconduct" which was the subject
of Gibson 's "final warning " For these reasons and based on my observa-
tion of Guy's overall demeanor while on the stand, I do not credit his
explanation of why he recommended Gibson's termination
15
been given one or more chances to improve . 42 Michelle
Cavins and Paulette Laffoon were ultimately discharged
for unsatisfactory work performance at the end of ex-
tended probationary periods as clerical employees, but
only after they had been advised of their failings by Re-
spondent's management. Lisa Curneal was the only cleri-
cal employee who was discharged by Respondent with-
out first receiving a warning concerning her perform-
ance.43 Her personnel file indicates that she had not an-
swered requests for information for 6 months to a year
and that she had not cashed or credited checks for as
long as 7 months . Her discharge stated that the "mail un-
answered was a serious infraction but the checks not
handled properly was inexcusable."
III. DISCUSSION
A. Alleged Threats and Interrogation
The General Counsel contends that Troop's remarks
to Gibson about April 20 constitute a threat of unspeci-
fied reprisals as a result of Gibson 's union activities. Re-
spondent notes that Troop's comments must be viewed
in the context and circumstances in which they arose and
contends that no violation occurred because the incident
was an isolated one involving a low-level , newly pro-
moted supervisor who was on good terms with Gibson. I
cannot accept this rationale . Troop delivered what
Gibson understood to be a warning from her immediate
supervisor concerning her union activities . This occurred
at Respondent 's facility during working hours and within
a week of Gibson 's repeated discipline over the Little-
page incident . The fact that Troop and Gibson were
friendly (and his warning was well-intentioned) does not
prevent my fording that his comment would reasonably
tend to interfere with Gibson's free exercise of her em-
ployee rights. See Jax Mold & Machine, 255 NLRB 942,
945-946 (1981); Hanes Hosiery, Inc., 219 NLRB 338
(1975). Accordingly, I ford that Troop's threat was an
unfair labor practice in violation of Section 8(a)(1) of the
Act.
The General Counsel next contends that the meeting
between Gibson , Stevenson , and Dockrey in the latter's
office on April 23 gave rise to two violations of the Act.
With respect to the first , the question of whether Dock-
rey implicitly conditioned lifting a wage freeze on the
termination of union activities turns primarly on credibil-
ity determinations . Having accepted Gibson's version of
the conversation , I ford that Dockrey's statement unlaw-
fully interfered with the rights of Respondent 's employ-
ees and constitutes an unfair labor practice in violation of
Section 8(a)(1) of the Act. See Jax Mold & Machine, 255
NLRB at 947; World Wide Press, 242 NLRB 346, 360
(1979).
The second violation of the Act, which the General
Counsel contends took place at the meeting , is based on
Dockrey's statement that the distribution of certain union
48 The fact that this is Respondent's policy as well as its practice is
established by the section of its employee handbook entitled "Discipli-
nary Procedures "
43 The record is silent whether Curneal was counseled prior to her dis-
charge
16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
materials was grounds for dismissal . 44 Respondent
argues that a threat to discharge employees who distrib-
ute unprotected materials is not unlawful and urges that
the cartoon, which Dockrey stated was an example of
the kind of union literature which could not be distribut-
ed, was unprotected due to its "scurrilous and defamato-
ry" nature. The burden is on Respondent to show the ex-
istence of "special circumstances" which justify prohibit-
ing the distribution of union materials, and the content of
the cartoon in question does not meet this burden. See
Midstate Telephone Corp., 262 NLRB 1291 (1982); Bor-
man's, Inc., 254 NLRB 1023, 1024-1025 (1981), enf.
denied 676 F.2d 1138 (6th Cir. 1982). Moreover, Dock-
rey's statement was not confined to the cartoon and was
made immediately after he stated that other union para-
phernalia could not be displayed in the Clinic. Accord-
ingly, I find that Dockrey's threat was an unfair labor
practice violative of the Act.
Finally, the General Counsel contends that the ques-
tion directed to Osborn by Troop at the end of April
constitutes coercive interrogation violative of the Act. I
disagree. Troop's question was clearly rhetorical in
nature, rather than one intended to elicit information. In
addition, the question was posed in Osborn's office
amidst employee banter, and it elicited an honest re-
sponse. Not surprisingly, there is no indication that the
incident had a coercive impact on Osborn or anyone
else. For the foregoing reasons, I find that Troop's ques-
tion was not unlawful. see M. A. Harrison Mfg. Co., 256
NLRB 427, 430 (1981); Lyman Steel Co., 249 NLRB 296,
302 (1980); Fairbanks Medical Clinic, 213 NLRB 741
(1974). Accordingly, I shall dismiss the relevant allega-
tion of the complaint.
B. Gibson's Discipline
The General Counsel contends that Gibson's discipline
over the Littlepage incident" and her discharge were
motivated by her union involvement. Respondent argues
that both discipline and discharge were for cause. Thus,
Respondent's motivation is the crucial determinant in re-
solving this issue.
There can be no question that Gibson was a highly
visible, extremely vocal union adherent and advocate of
employee rights. Nor is there any doubt that Respondent
was fully aware of Gibson's protected concerted activi-
ties. One of her activities on behalf of the Union in-
volved her repeated, direct contact with Respondent's
management , and her other union activities resulted in
additional interactions with Respondent's top managers,
which they inevitably documented for her personnel
file.46
The circumstances surrounding the Littlepage incident
gainsay any possibility that it was an even-handed, dis-
passionate administration of discipline and convince me
44 Dockrey's instuchon that Gibson remove union paraphernalia from
her work area was not alleged to be a violation of the Act
45 Respondent argues that the complaint does not allege that Gibson's
discipline over the incident was discriminatory, but only that Respondent
discriminated against Gibson by disciplining her for it on three separate
occasions . My reading of the complaint differs from Respondent's
46 On brief, Respondent describes Dockrey , Claysmith, and Fuller as
"the Clinic's three top management officials "
that Respondent's true motivation was Gibson 's union in-
volvement. An inference that Respondent's motive was
unlawful is compelled by the timing of Gibson 's disci-
pline. Gibson figured prominently in the Union's presen-
tation of its recognition letter to Claysmith only 3 days
before the Littlepage incident, and Gibson sought Re-
spondent's approval of an apparently troublesome hand-
bill on the morning of the incident. Similarly, the stated
bases for Gibson 's discipline cast doubt on Respondent's
purported motivation. According to the reprimand given
Gibson, her discipline was due to Littlepage' s complaint
of not having "received a satisfactory explanantion" and
having been "treated in an abusive manner." The former
ground can hardly be thought significant since Gibson
suggested an audit, the same remedy later offered by
Fuller. Notwithstanding the fact that the complaint con-
cerning Gibson's abusive behavior is totally devoid of ex-
planatory or substantiating detail, Claysmith rejected any
attempt by Gibson to explain, instead of attempting to
secure her version of the confrontation as was Respond-
ent's demonstrated practice. Equally troubling is the fact
that Gibson's discipline was handled not by her immedi-
ate supervisor or even by that supervisor's immediate su-
perior, but by the second-ranking member of Respond-
ent's management.
Also significant is the body of evidence that Respond-
ent was laying a foundation for future disciplinary action
against Gibson at the time of the Littlepage incident.
Thus, the April 13 reprimand was written, as correctly
contended by the General Counsel, "to make it appear
that Gibson was a chronic disciplinary problem." The
only apparent purpose for disciplining Gibson again on
April 14 was to add a "final warning" which would also
facilitate future discipline. In the course of attempting to
justify Gibson's discipline, Respondent's top managers
went to the apparently unprecedented length of prepar-
ing a complaint "letter" and securing signatures for it.
Respondent 's top management also went to some trouble
in Claysmith's April 13 attempt to solicit a complaint
about Gibson from Gamblin, and the desire to document
any adverse circumstances is demonstrated by the inclu-
sion of Henshaw's hearsay account in Gibson's personnel
file. The final piece of evidence which indicates that Re-
spondent was not looking solely at the Littlepage inci-
dent when it disciplined Gibson was its insertion of the
April 13 Cunningham memorandum in Gibson's person-
nel file without asking her about the incident or notify-
ing her of their action. 47 In sum , I am forced to con-
clude that Respondent's discipline of Gibson over the
Littlepage incident was merely the initial step in making
an "object lesson" out of the union supporter most visi-
ble to Respondent's top management. I therefore find
that Gibson's discipline on April 13 and 14 was violative
of Section 8(a)(1) and (3) of the Act.
Gibson's discharge is also alleged by the General
Counsel to have been a violation of the Act. Again, Re-
spondent argues that the dismissal was for cause. Resolu-
tion of this issue is complicated by the fact that the pur-
47 Parenthetically, I find their failure to do so significant in view of the
reliance placed on that memorandum to explain Gibson' s discipline and
discharge in Steveson's May 31 letter and in Respondent's brief.
TROVER CLINIC 17
ported bases for Respondent's action are not easily ascer-
tainable from the record. Gibson was told, and her termi-
nation report reflected, that she was discharged because
of her unsatisfactory performance in filling out request
forms for itemized statements, but Dockrey, Fuller, and
Guy all concede that the Littlepage discipline was a sig-
nificant factor in her dismissal. From still another per-
spective, Guy's written recommendation, Claysmith's no-
tation thereon, and Stevenson's May 31 letter indicate
that every matter documented in Gibson's personnel file
was considered in reaching the decision to terminate her.
One thing which is clear is that Respondent's reliance
on the discriminatory discipline of April 13 and 14 as a
basis for Gibson's discharge fatally tainted its motivation
for that discharge. Even if this were not the case, the
conclusion that Respondent's motivation was unlawful
would be compelled by the animus which may be in-
ferred from the violations of Section 8(a)(1) found herein
and from the disparate nature of the discipline visited on
Gibson on May 26. Except for a single egregious case, it
was shown to be Respondent's stated policy and practice
to warn clerical employees that their work was unsatis-
factory and give them an opportunity to improve before
discharging them. As Respondent noted on brief, it dis-
charged Gibson "as soon as it became aware that Gibson
was responsible for the itemized statement problem." As-
suming , arguendo, that Gibson had simply ignored the
itemized statement problem for April and May as con-
tended by Respondent, her infraction corresponds most
nearly with that of the employee who was merely repri-
manded for being 3 months behind in her work. The
only clerical employee discharged by Respondent for un-
satisfactory work performance (without a prior warning
concerning that performance) had failed to answer re-
quests for information for as long as a year. I do not find
persuasive Respondent 's attempt to analogize that situa-
tion with the one which resulted in Gibson's dismissal.
The above findings require a further finding that Gib-
son's termination violated Section 8(a)(1) and (3) of the
Act.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By conditioning its lifting of a wage freeze on the
termination of union activities, Respondent committed an
unfair labor practice within the meaning of Section
8(a)(1) of the Act.
4. By threatening its employees with discharge and
other unspecified reprisals because of their participation
in union and other protected concerted activities, Re-
spondent committed unfair labor practices within the
meaning of Section 8(a)(1).
5. By warning, reprimanding, and discharging Donna
Gibson for her participation in union and other protected
concerted activities, Respondent committed unfair labor
practices within the meaning of Section 8(a)(1) and (3) of
the Act.
6. The aforesaid unfair labor practices affect commerce
with the meaning of Section 2(6) and (7) of the Act.
7. A preponderance of the credible evidence does not
establish that Respondent has otherwise violated the Act.
REMEDY
Because Respondent engaged in unfair labor practices,
it shall be ordered to cease and desist therefrom and to
take certain affirmative action designed to effectuate the
purpose of the Act. Such affirmative action shall include
an offer to Gibson of immediate and full reinstatement to
her former job, discharging any replacement if necessary
or, if that job no longer exists, to a substantially equiva-
lent job, without prejudice to her seniority or other
rights and privileges previously enjoyed. Gibson shall be
made whole for any loss that she may have suffered as a
result of Respondent's discrimination against her. Back-
pay will be calculated in accordance with the formula set
forth in F. W. Woolworth Co., 90 NLRB 289 (1950), to
which interest shall be added in the manner provided in
Florida Steel Corp., 231 NLRB 651 (1977).48 Finally, be-
cause the record contains substantial reason to believe
that a number of documents in Gibson's personnel file
detail what Respondent referred to as "other instances of
misconduct" which underlay the decision to discharge
her, Respondent shall remove those documents from its
records. See Sterling Sugars, 261 NLRB 472 (1982).
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed49
ORDER
The Respondent, Trover Clinic, Madisonville, Ken-
tucky, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Conditioning the lifting of a wage freeze on the ter-
mination of union activities.
(b) Threatening its employees with discharge or other
unspecified reprisals because they engage in union or
other protected concerted activities.
(c) Discharging, reprimanding, warning, or otherwise
discriminating against its employees because they engage
in union or other protected concerted activities.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer Donna Gibson immediate and full reinstate-
ment to her former job or, if that job no longer exists, to
a substantially equivalent position, without prejudice to
her seniority or any other rights or privileges previously
enjoyed, and make her whole for any loss of earnings
and other benefits suffered as a result of the discrimina-
48 See generally Isis Plumbing Co., 138 NLRB 716 (1962)
49 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings , conclusions , and recommended
Order shall , as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion against her, in the manner set forth in the remedy
section of the decision.
(b) Remove from its files the memoranda authored by
Henshaw and Cunningham on April 13, 1982, by Steven-
son on April 26, 1982, by Fuller on May 3, 1982, by
Troop on May 19, 1982, and by Guy on May 20, 1982,
as well as any other reference to the unlawful discipline
of Donna Gibson on April 13 and 14, 1982, and her un-
lawful discharge on May 26, 1982; and notify Donna
Gibson in writing that this has been done and that evi-
dence of her unlawful discharge and discipline will not
be used as a basis for future personnel action concerning
her.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records , social security payment records , timecards,
personnel records and reports , and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(d) Post at its Madisonville, Kentucky facility, copies
of the attached notice marked "Appendix."50 Copies of
the notice, on forms provided by the Regional Director
for Region 9, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER RECOMMENDED that the allegations of
the complaint not specifically found herein be dismissed.
60 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join , or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these protect-
ed concerted activities.
WE WILL NOT condition the lifting of a wage freeze
on the termination of union activities.
WE WILL NOT threaten you with discharge or other
unspecified reprisals because you engage in union or
other protected concerted activities.
WE WILL NOT discharge, reprimand, warn, or other-
wise discriminate against you because you engage in
union or other concerted protected activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL offer Donna Gibson immediate and full rein-
statement to her former job or, if that job no longer
exists, to a substantially equivalent position, without prej-
udice to her seniority or any other rights or privileges
previously enjoyed and WE WILL make her whole for
any loss of earnings and other benefits resulting from her
discharge, less any net interim earnings, plus interest.
WE WILL remove from our files any reference to the
unlawful discharge of Donna Gibson on May 26, 1982,
and to her unlawful discipline on April 13 and 14, 1982,
and WE WILL notify her that this has been done and that
evidence of this unlawful conduct will not be used as a
basis for future personnel action concerning her.
TROVER CLINIC