Walnut Creek Hospital

National Labor Relations Board - Board Decisions

Jan 23, 1974

208 N.L.R.B. 656 (N.L.R.B. 1974)

656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Walnut Creek Psychiatric Hospital d/b/a Walnut
Creek Hospital and Roberta A. Sch m ljobann.
Case 20-CA-8134
January 23, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
On August 20, 1973, Administrative Law Judge
Henry S. Salim issued the attached Decision in this
proceeding. Thereafter, General Counsel filed excep-
tions 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 to the
extent consistent herewith, and to adopt his recom-
mended Order as modified herein.'
The Administrative Law Judge found that on
February 20, 1973, Hospital Administrator Veronte
interrogated employee Moerer in violation of Section
8(a)(l) of the Act when he asked her if she had
signed "anything" with the Union. No exception has
been taken to this finding. However, the General
Counsel has excepted to the Administrative Law
Judge's failure tofind an additional 8(a)(l) violation
stemming from this unlawful interrogation when,
upon Moerer's denying any union involvement on
her part, Veronte stated that employee Bugnatto had
told him otherwise, and that Ingram, whom we find
hereinafter to be a supervisor, had told him the same
thing. We find merit to this contention of the
General Counsel. Accordingly, we find that these
statements of Veronte created the impression that
her union activities were being kept under surveil-
lance in violation of Section 8(a)(1) of the Act.
The General Counsel has also excepted to the
Administrative Law Judge's failure to find that
Ingram was a supervisor and agent of Respondent as
alleged in the complaint. That complaint allegation
was not denied in Respondent's answer. Neverthe-
less, the Administrative Law Judge held that the
General Counsel had not established that Ingram
was a supervisor or agent of Respondent because no
1 The General Counsel excepted to the Administrative Law Judge's
failure to include as part of his remedy that Respondent be required to offer
reinstatement to employee Schmaljohann who was found to have been
discharged in violation of Sec . 8(aX3) and (1) of the Act. Thereafter, the
Administrative Law Judge issued an "Erratum " correcting this inadvertent
omission from the remedy part of his decision by requiring Respondent to
"offer reinstatement to her to 'the position she held on January 6, 1973." We
evidence was adduced as to her status at the hearing.
We disagree. Apparently, the Administrative 'Law
Judge inadvertently overlooked the failure of the
Respondent to contest the allegation of Ingram's
supervisory and agency status in .its answer, and,
therefore, the lack of necessity for the General
Counsel to offer proof in support of it. Under Section
102.20 of the Board Rules and Regulations, Series 8,
as amended, the failure of Respondent to deny this
allegation constituted an admission by it that Ingram
was its supervisor and agent , and we so find .2 Having
so found , we must consider the merits of the
allegations in the complaint based on Ingram's
alleged unlawful conduct as the Administrative .Law
Judge dismissed such allegations on the ground that
responsibility for her acts could not be imputed to
Respondent.
Employee ^ Berger testified without contradiction
that on February 26, 1973, Ingram ' asked her if she
had "signed any papers to do with the Union" to
which she said it was no concern of Ingram 's. When
Ingram became excited, banging her hand on the
table and demanding an answer , Berger admitted
that she had signed something. We find this conduct
of Ingram to be interrogation in violation of Section
8(a)(l) of the Act.
Employee Moerer testified without contradiction
that on January 8, 1973, she asked Ingram if the
Union had been to the hospital, to which Ingram
replied that she knew union representatives had been
there. The General Counsel contends in his excep-
tions that this conduct by Ingram created the
impression of surveillance . Since Moerer initially
asked Ingram about the Union and no evidence was
presented to indicate that Ingram's knowledge of the
Union's presence was obtained through anything
other than innocent observation, we find that
Ingram's response to Moerer's inquiry did not create
the impression of surveillance in violation of Section
8(a)(1) of the Act,
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 as
modified below and hereby orders that Respondent,
Walnut Creek Psychiatric Hospital, d/b/a Walnut
Creek Hospital, Walnut Creek, California, its offi-
shall modify the recommended order of the Administrative Law Judge to
require that Schmaljohann be offered reinstatement to her former or a
substantially equivalent position of employment, if the prior job is no longer
available
2 Sec. 102.20 in pertinent part provides that "any allegation in the
complaint not specifically denied ... in an answer ... shall be deemed to
be admitted to be true and shall be so found by the Board ...."
208 NLRB No. 98
WALNUT CREEK HOSPITAL
cers; agents, successors , and assigns, shall take the
action set forth in the said recommended Order, as so
modified:
1. Insert the following as paragraph 1(c) and
reletter the following paragraphs accordingly:
"(c) Creating the impression . of keeping under
surveillance the union activities of its employees."-
2. Substitute the following for paragraph 2(a):
"(a) Offer to Roberta A. Schmaljohann immediate
and full reinstatement to her former job or, if that job
no longer exists , to a substantially equivalent
position, without prejudice to her seniority or other
rights and privileges, and make her whole for any
loss of earnings of benefits she may have suffered by
reason of the discrimination against her from
January 6, 1973, until the date of said offer, with
reimbursement to be computed as provided in F. W.
Woolworth Company, 90 NLRB 289, Isis Plumbing &
Heating Co., 138 NLRB 716."
3. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To , EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which all parties had the opportunity
to present their evidence, the National Labor
Relations Board has found that we, Walnut Creek
Psychiatric Hospital , violated the National Labor
Relations Act, and has ordered us to post this notice
and to keep the promises that we make in this notice.
WE WILL NOT discharge or otherwise discrimi-
nate against any employee because of his or her
activity on behalf of, or membership in, Hospital
and Institutional Workers Union , Local 250,
AFL-CIO, or any other labor organization.
WE WILL NOT.question our employees about
whether they belong to a union or signed union
papers.
WE WILL NOT create the impression that we are
keeping union activities under surveillance.
WE WILL NOT in any other manner interfere
with, restrain , or coerce employees in the exercise
of their rights under Section 7 of the Act.
WE WILL offer full reinstatement to Roberta A.
Schmaljohann to her former job or, if that job no
longer exists, to a substantially equivalent posi-
tion , and make her whole for any loss of pay she
may have suffered as a result of her discriminato-
ry discharge,. plus interest thereon at 6 percent a
year.
657
WALNUT CREEK
PSYCHIATRIC HOSPITAL
D/B/A WALNUT CREEK
HOSPITAL
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions- concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, 13018 Federal Building , Box 36047,
450 Golden Gate Avenue, San Francisco, California
94102, Telephone 415-556-3197.
DECISION
HENRY S . SAHM, Administrative Law Judge: This
proceeding, heard at San Francisco, California, on July 9
and 10, 1973, pursuant to a charge filed March 6, 1973, and
a complaint issued June 20, presents two issues : whether
Respondent hospital discriminatorily discharged employee
Roberta A. Schmaljohann on January 5, 1973, because of
her union activities ; and secondly, whether Respondent
engaged in surveillance and interrogated and promised
employees benefits including wage increases, in order to
discourage their support of the Union.
Upon the entire record, including observation of the
demeanor of the witnesses , and after due consideration of
the briefs filed by General Counsel and by Respondent on
August 13, 1973, there are made the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER AND THE LABOR
ORGANIZATION INVOLVED
Community Psychiatric Centers , a California Corpora-
tion, operates 10 proprietary hospitals in California. One of
its hospitals, the Respondent herein, which is located at
Walnut Creek, California, had gross annual revenue in
excess of $250,000, and annually receives goods and
materials valued in excess of $5,000 directly from outside
the State and approximately $5,000 in Federal medicare
and California medicare medical programs . It is found
accordingly , that Respondent is an employer, engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
The Union, Local 250 of the Hospital and Institutional
Workers' Union, herein called the Union , is a labor
organization within the meaning of Section 2 (5) of the Act.
658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
11. THE ALLEGED UNFAIR LABOR PRACTICES 1
A. Introduction
It appears that some time after the hospital opened in
March that certain employees were dissatisfied with their
working conditions, as evidenced by the turnover of
personnel. Because of this discontent, they began to discuss
among themselves the feasibility of having a union
represent them. A prime protagonist for a union was
Roberta Schmaljohann who told some of her coworkers
that she favored a union and also informed them of the
advantages of a union in alleviating those working
conditions of which they complained. Schmaljohann, who
was an inactive member of the Union herein,2 stated to the
employees her favorable views with respect to this Union
in particular, and the employees' need in general, for a
union to remedy their complaints and improve their
working conditions.These prounion sentiments of Schmal-
johann were expressed in the presence of her immediate
supervisor, Doris Hendricks, who was present on various
occasions when Schmaljohann was speaking to other
employees about the necessity of a union. It was suggested
by Hendricks to Raymond Veronte, the head of the
hospital and her superior, that Schmaljohann should be
terminated because of her union activities. Veronte
discharged Schmaljohann on January 5, 1973, with no
prior notice. On March 2, 1973, the Union filed a
representation petition, a Board election was held on April
19, which the Union won, and a certification of representa-
tive issued on April 27, 1973.
B. The Alleged Violation of Section 8(a)(3)
Roberta Schmaljohann, the alleged discriminatee, who
had 7 years' experience as a medical records secretary, was
hired on July 19 as a medical records secretary in the
business office of the Respondent hospital. She worked
under the immediate supervision of Doris Hendricks, who
was the head of the business office and also director of
personnel. The hospital physicians dictated their diagnosis
regarding the condition of their patients to Schmaljohann
who, in turn, transcribed and typed their medical reports.
In addition, she opened and distributed the mail, took care
of the correspondence of the hospital administrator,
Raymond Veronte, and was also in charge of the filing and
custody of the medical records.
Insofar as the technical aspects of the medical records
were concerned, she was under the direct supervision of
Evelyn Reynolds, a licensed medical records consulting
librarian, who visited the hospital once each month to
evaluate, inter alia, the quali ty of Schmaljohann's medical
records work, which she incorporated into a written report
for submission to Veronte, the hospital administrator.
Reynolds was not a hospital employee but performed her
duties on a contract basis. At the end of Schmaljohann's 3-
1 All dates are 1972 unless otherwise indicated.
2 She obtained a withdrawal card from the Union in 1969 when she
voluntarily left the employ of another hospital. A withdrawal card usually
entitles the holder to a very qualified union membership . Such cards are
either of the honorary or participating type. Normally, both types carry an
exemption for the holder from the dues obligation to the union and entitle
the holder to regain regular membership without fulfilling normal
month, probationary period, Reynolds submitted to
Veronte a favorable report dated October 27, 1972, of her
work performance. On the same date, Veronte recom-
mended a pay raise for Schmaljohann. See G.C. Exh. 3.
The following day, October 28, Veronte discussed
Schmaljohann's performance evaluation report with her.
According to Schmaljohann, Veronte told her that she
"was getting along petty well, that my relationship' with
the employees and my coworkers and my supervisors was
quite good and that I didn't have any significant problems
there. He did say that I showed a reluctance to communi-
cate with the doctors as far as completing their charts and
medical records, but he thought that this weakness would
improve with experience. He said that he didn't have any
real unfavorable comments other than that one weakness
that I showed in communicating. Also, with the Medical
Director and himself, he did say that he felt there was a
lack of communication there .... I told him that I felt
there was a lack of communication between the Medical
Director and the Administrator [Veronte], inasmuch as
they were not aware of how much work they had placed
upon me, and he thought the lack of communication
wasn't between he and the Medical Director as much as it
was with me coming to the Medical Director or himself
with my comments . . . he didn't have any negative
remarks at that time other than the fact that I mentioned
previously . . . . He told me that I would be getting my
pay raise, effective November 1. He rated me as competent
to effective worker, I believe."
Veronte, the hospital administrator's version of this
interview reads as follows: "In that 90-day evaluation, it
was pointed out to her that neatness and accuracy of her
work needed improvement and that she needed to organize
her work better. These, were things that needed to be done
better and this was areas that I talked to her about and I
thought that she had to learn to get along better with the
Medical Director and the Administrator. She seemed to be
confused on how to handle these people and how to handle
doctors."
Schmaljohann also testified that: "[The] third or fourth
week in November, [Veronte] said that Dr. Widroe, the
Medical Director, had been complaining about the
transcription on the charts on the ward, that he had gone
through them. They were not just his charts ... Mr.
Veronte asked me at that time whether or not I was having
any particular difficulty with the transcription ... .
Schmaljohann went on to explain that she was experienc-
ing no difficulty except for one particular doctor who
"spoke with a brogue, and his accent was sometimes a little
difficult to handle, but after you familiarized yourself with
him, that he was pretty routine ...."
Schmaljohann continued that when Reynolds made her
monthly visit to the hospital in December, Reynolds told
her that Veronte had discussed with Reynolds the quality
of the medical reports which the doctors had dictated to
reinstatement requirements . In addition. the holder of the participating
withdrawal card is entitled to participate in the pension and insurance
benefits of the union's international affiliate upon the payment of certain
fees . Withdrawal cardholders are denied all other benefits of membership
including the right to attend meetings . but are subject to the Union's
constitution.
WALNUT CREEK HOSPITAL 659
Schmaljohann and which she transcribed from her short-
hand notes . Schmaljohann stated Reynolds assured her
that her work was "very adequate ," stating, "I want to let
you know that I pulled your charts on a random basis on
the ward and I found ; your transcription to be very
adequate, and I'm going to be putting it, in my next report
.... Schmaljohann . stated that the "very adequate"
evaluation by Reynolds of her work did appear in the next
report and that Veronte read the report in her presence,
"but nothing was said [by him] about [Reynold 's report]
one way or the other."
Schmaljohann 's status in the Union herein at the time
the events in this proceeding occurred was that of an
inactive member, as she was issued a withdrawal card by
the said Union when she voluntarily left the employ of the
Kaiser Hospital in 1969. See footnote 2. However, in
discussions by the employees about unsatisfactory working
conditions at the Respondent hospital as described, supra
Schmaljohann was in the forefront in espousing the
benefits of unionism and making invidious comparisons
with the differences between Respondent 's wages, holi-
days, and other working conditions as compared to those
hospitals whose employees were represented by the Union
herein.
On one of many occasions when Schmaljohann was
advocating unionism, she told Hendricks, her supervisor,
in November, that in view of there being so many
"dissatisfied personnel that there was an air of animosity
that you could feel from the day that you worked there,
and she said that she knew that a problem existed, and I
told her [Hendricks] `Well, don't you feel that if there was
a union here . that the employees would be protected,' and
she knew that a problem existed . . . but she didn't feel
that a union was the answer . . . . I told her that with a
union, you do have grievance protection. I understood her
point though when you do have a union shop that you have
to, you know, the employer's hands are tied , and I realized
this, but taking everything into consideration , I still
maintained my feeling that the employees would be more
protected and would be better off with a union."
Schmaljohann testified that during the first week in
December, while in the hospital cafeteria , with employees
of the nursing , dietary, and business departments,3 that
they asked her "since I had been a previous employee of
Kaiser Hospital, which was a member of Local 250, they
asked me what ,.the pay scale was at the time. The union
contract had just been changed and the pay scale was quite
a bit more than what they had been making there, and I
can remember some of the nursing personnel in particular
were really amazed at the difference in pay that they would
be receiving on an hourly basis."
On or about December 22,. while having lunch with
Hendricks , Schmaljohann informed Hendricks that it was
her belief that the employees favored the Union and that
she "liked" her work but considering the responsibility
placed upon her and the amount of work expected of her,
3 Patricia Gavello, a business department employee, who testified on
behalf of the Respondent , was present , and according to Schmaljohann,
Gavello complained that the hospital had not paid her for overtime she had
worked, stating , "The only thing that 'll straighten this place out is a union."
Gavello on her direct examination denied she stated "the Union would be a
good thing for the hospital ," or that Schmaljohann ever discussed union
she "felt [she ] was underpaid," compared with the salary
she would be receiving if she was employed at a union
hospital.
On the morning of January 5, 1973, Schmaljohann was
summoned by Veronte to his office. The following is her
recital of what occurred:
He and I were 4he only ones that were present. He
leaned back in his chair and he said , "Bobbie, I have
something painful to tell you," and I looked at him and
he said, "I'm going to have to let you go." And I was
stunned at. first, and then I said, "Why," and his reply
was, "Well,' he says, "It's many things ." He says, "I
can't put my finger on any one certain thing ," and he
says, "that we," meaning Dr. Widroe, the Medical
Director, and himself felt that they couldn' t trust me
and that I was disloyal.
I had said that I didn't see how they could feel that
way. I did mention the fact that I consulted Mrs.
.Hendricks on a few occasions and he pointed out that I
should have consulted him, which , you know, would
have been the chain of command , and that, he said,
"Well, for an example, I know this sounds petty," but
he says, "I asked you to stamp the mail as it was
received," and he says, "I had to remind you to do that
twice," and he said, "You still haven't done it." Well,
this was right around the time of the holidays and we
had a three-day weekend in between and I admit I did
neglect to do that, but then the holidays, there was
quite a bit of work to be done, and that wasn't the first
thing on my mind, and he said that he was sorry. I told
him, I said, "Do you realize I'm not in a position where
I want to work? I'm in a position where I have to
work," and he said that he realized that and that he was
sorry and if he could do anything to help obtain
another job, he'd be happy to because I was a superior
worker and, on that note, he told me, he said-I asked
him if that was all. I asked him when my last day was
and he said, "Today ." I said, "Will I be getting my
check in two weeks?" He said, "No," he said, "I have it
prepared," and so then I went into Medical Records
and called my husband and shortly after that he came
into Medical Records and asked me for my keys and
gave me my check.
It was elicited that January 5 was Schmaljohann's
regular payday and that Veronte handed her regular check
to her that morning and the afternoon of the same day she
received her final paycheck approximately at 4 o'clock. She
testified that she was given no warning that. she was to be
discharged and that she was paid in full up to the date of
her discharge but she was not given any compensation for
the following week or 2 weeks but merely paid up to the
date of her discharge.
Morris Wills was northern California acting regional
activities with her, other than she agreed with Schmaljohann 's statement to
her that the hospital would go union . Little credence has been given
Gavello's testimony . Also present , testified Schmaljohann, was Grace
Ingram , head of the dietary department , who attended "quite a few of the
discussions that we had in the cafeteria. "
660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
administrator from June 1972 to February 21, 1973, of four
hospitals, including Respondent Walnut Creek Hospital,
which were operated by Community Psychiatric Centers.4
His testimony follows:
In mid-December, he was "advised" by Veronte that he
intended to discharge Schmaljohann. After Veronte stated
the reasons for his contemplated action, Wills stated that
he "felt that [Veronte] did not have sufficient grounds for
termination. ... [because b lased on her employee
evaluation and the facts that he [Veronte] had presented to
me, I did not feel at the time that there was just cause for
termination." At another point in his testimony, Wills
stated that when he and Veronte discussed Schmaljohann's
evaluation report [General Counsel Exhibit No. 3] he
"found nothing in her evaluation that would lead me to
dismiss her."
Another discussion was had between Veronte and Wills
on the morning of January 5, 1973, with respect to
Schmaljohann's proposed discharge. Wills testified that
they considered whether "there was just cause for termina-
tion of Mrs. Schmaljohann." The basis for Veronte's
discharging her, continued Wills, was "that he couldn't
trust her [because] of her conferring with Evelyn Reynolds
on the subject of medical records . . . that she had gone
over his head .... [I told him] it would be within the
normal chain of command for her to go directly to Mrs.
Reynolds on questions pertaining to medical records," and
that it was not necessary for her to obtain permission from
Veronte before discussing with Reynolds matters involving
medical records. Wills concluded that "based on our
discussion, that there was no supportive evidence for [her]
termination ...." Wills testified that he also told Veronte
that terminating people "without back-up proof of malfea-
sance of duty could result in poor public relations for the
hospital." Wills continued that "it was my contention that
seeking clarification of policy regarding medical records
directly from Mrs. Reynolds was the appropriate thing to
do, as Mrs. Reynolds was the Medical Records Consult-
ant.,,
A week after Schmaljohann's discharge, Veronte tele-
phoned Wills and "questioned [him] as to what his legal
responsibility was in supplying the Schmaljohann family
with the letter stating reasons for discharge, what would
happen to the hospital if he didn't, or what could happen
to the hospital if he did not supply the letter, and whether
or not he should supply the letter." Wills testified that this
letter, which apparently was requested by Schmaljohann,
was not supplied to her. Wills concluded his direct
examination by testifying that when Veronte was adamant
in discharging Schmaljohann, he told him: "Under the
circumstances. 1 felt that it would be fair to give her two
weeks' notice rather than to discharge her summarily for
cause."
On cross-examination and redirect, it was elicited that
Wills and Veronte discussed in mid-December "the
possibility and probability that union activity was taking
place at Walnut Creek Hospital" but continued Wills, he
did not recall discussing "anyone specifically that would be
engaged in union activities...." Wills stated that there
"had been an ongoing discussion" with respect to union
activities beginning as early as July 1972.
Doris Hendricks who was business manager of the
hospital from February 1972 to February 9, 1973, and
Schmaljohann's immediate supervisor, testified that she
informed Veronte in late November or early December
that employees were talking to union representatives. "I
told him that I felt that one member of my particular staff,
and when I say immediate member, I'm speaking mostly of
the girls in the Business Office that I was mostly related
with, one member had been cultivating or speaking to a
union representative, and I furthermore mentioned to Mr.
Veronte that it had been brought to my attention that a
member of the nursing staff had considered this and there
was a lengthy discussion with Mr. Veronte." Hendricks
stated that they mentioned names of employees who might
be involved in union activities. She continued that she
mentioned Schmaljohann's name to Veronte and told him
that "surely" he was aware that she was a member of the
Union herein "since she came from Kaiser [Hospital] .. .
and that she told Veronte of Schmaljohann's union
interest. On cross-examination, Hendricks stated that she
suggested to Veronte that Schmaljohann might be disloyal
and should be separated because of her union activities.
Hendricks was absent from the office from December 24
to January 8. 1973, because of illness . When she returned
she inquired of Veronte why Schmaljohann was terminated
and why he had not informed her before taking this action.
Hendricks testified that Veronte never told her he was
contemplating firing Schmaljohann. According to Hen-
dncks, the reply of Veronte was: "Well, I didn't want to
say anything to you in the hospital. I figured you didn't
need any more undue strain" and I asked him why and he
said, "Well, as you know, I have been thinking of
terminating her some time, and she was not able to cope
with the work and I said, no, I was not aware that you'd
been contemplating this for some time , and I said that if I
felt that it was her work, I felt that she was a terr ibly loyal
person, and, to my knowledge, having proofread several
documents of good size for her and found them to be
extremely accurate with a minimal of typing errors, I didn't
understand this." Hendricks continued that there may have
been two or three criticisms which Veronte made of the
quality of Schmaljohann's work but that they "were very,
very minor ...." Hendricks also related that she had
inquired of Reynolds on "several occasions" with respect
to the quality of Schmaljohann's work because Veronte
and Dr. Widroe, chief of the hospital's medical staff, had
complained about her. Hendricks mentioned this to
Reynolds, the hospital's medical records expert, who stated
that she was aware of these complaints . Hendricks'
testimony continues that Reynolds "wanted me to know
that she had pulled [Schmaljohann's] charts at random and
checked them out and found her work to be satisfactory
.... Just to the fact that she had pulled 12 charts at
random and she specifically said Dr. Widroe, since he was
making the complaints . . . . She found the work satisfac-
tory."
When Hendricks was asked what was the hospital's
4 Veronte stated Wills was his "superior," (tr. p 140 ) and Dr. Widroe "boss" of the four hospitals which Community Psychiatric Centers operated
Medical Director , testified that Wills was "the number one man" and the in Northern California.
WALNUT CREEK HOSPITAL 661
policy with respect to warnings being given employees
prior to their discharge , she answered that the policy of
Community Psychiatric Centers was to give employees
three warnings prior to terminating them but "Mr. Veronte
told me [in September or October 19721 we would chuck
the policy and do . as we pleased...."
Raymond E . Veronte has been employed as administra-
tor of the Walnut Creek Hospital from January 1972 to the
present time . He testified it was not until February 18,
1973, that he learned from . Gavello, an employee, that
there was union activity on the premises of the hospital.
Veronte denied he knew Schmaljohann was a union
proponent. Unknown . to Schmaljohann , an offer of
employment to commence on January 8, 1973 , was made
to Frances Slate on December 14 for her to, replace
Schmaljohann . Veronte testified that he became dissatis-
fied with Schmal 'ohann in October and he decided to
discharge her on ember 14 because of her "inability to
get along with the Medical Director , Dr. Widroe" and "I
felt that I had a more than adequate replacement " in Slate.
Also, continued Veronte, "There had been times when
Mrs. Schmaljohann just wasn 't able to do the work," and
he was unable to trust her. The basis for this lack of trust
was not clearly explained by Veronte , other than an
obfuscated justification which reads as follows : "I didn't
feel that she would not 'convey the information on to Mrs.
Hendricks, and Mrs. Hendricks plays an important part in
this, because Mrs. Hendricks was going to be terminated as
soon as an adequate replacement could be found. Since
there was such a close relationship between Mrs. Schmaljo-
hann and Mrs. Hendricks.".
When asked what occurred between October and
December 14, which caused him to recommend Schmaljo-
hann's termination, he answered : "Well, this thing that was
happening with Mr. Wills and the Business Manager, who
is reporting to him , going around me without my
knowledge . It just kept building up and at that time, I
would say, I started looking for a replacement. As a matter
of fact, Mrs. Slate came in and I talked to her and, at the
time, she was referred to me by Mrs. Hendricks ... this
probably was in November sometime ... And I told her
we did not have any openings . Just a few weeks after that, I
felt we should make a replacement... " Veronte then
asked Slate to come to his office for an interview which
eventuated in her being hired in January to replace
Schmaljohann who was fired on January 5.
On cross-examination Veronte stated that the reason for
discharging Schmaljohann "was the lack of confidence that
I had in her loyalty to me, to pass the information on that I
wanted to give her, or the information that would be made
available to her, and keep it within just us , in other words,
and when my position was being threatened and she was
passing information on to one of the people who was
threatening my job , as Administrator, I 'felt that her
position ' was untenable ." When Veronte was asked if he
told Wills, whom he described by his own testimony as his
"superior," the reasons stated above for deciding to
discharge Schmaljohann , he incredibly answered : "I can't
recall exactly what I told him ." He then went on to allege
that he gave his reasons to Widroe, the medical director,
and Hendler, the director of nurses, but not to his
"superior" because, "part of the problem that arises in
communicating with Mr. Wills is he was part of the
problem . In other words , he was going behind my back, I
felt, to the business manager [Hendricks) and trying to
disrupt Walnut Creek Hospital .... Mr. Wills entered
into it because he was trying to get me fired, so if
[Schmaljohann is) reporting to him and Mrs. Hendricks,
who is working for me, who is going around me and
reporting to Mr. Wills, who is the acting regional
administrator, I had no choice but to get rid of those
people who were not loyal to me...
Veronte never informed Schmaljohann that he was
dissatisfied with the quality of her work nor warned her
that he was going to terminate her. The only time Veronte
discussed her work with her was when he interviewed her
on October 28, at the time she received her 90-day
evaluation report and he recommended a pay raise for her.
These objective factors show that he had no substantive
complaints about the quality of her work.
Dr. Harvey Widroe, medical director of the Respon-
dent hospital, testified that Schmaljohann's transcriptions
of letters and data that went into the medical charts was
"sloppy and on a number of ' occasions actually needed to
be retyped. Second, I felt that the volume of material
produced was not produced at an adequate rate . In other
words, that her production was too slow ... [she] was
deficient : whether one would call it lack of maturity, poor
judgment, lack of common sense , it seemed to be a
repeated deficit ." Widroe continued - that he . became
"exasperated" in the "middle of November" and he
"insisted" that she be "terminated ." Significant is Ver-
onte's testimony that he did not decide to fire Schmaljo-
hann until December 14, a month after Widroe "insisted"
that she be terminated, and it was not until 2 months later
that she eventually was discharged on January 5, 1973.
Although Veronte's prime motivating basis for firing
Schmaljohann was her alleged disloyalty, it is noteworthy
that when Widroe was asked on his direct examination
whether Veronte ever complained to him that he did not
"trust" her, he answered : "No, I don't remember anything
of that sort." Another salient consideration elicited on
cross-examination , is Widroe's testimony that he com-
plained to Veronte as early as August about Schmaljo-
hann's alleged inadequacies but that he never put these
complaints in writing even though it is not too unreasona-
ble to assume Widroe was consulted by Veronte when he
prepared her satisfactory evaluation report of October 27.
Cogently probative of the invalidity of the reasons ascribed
for Schmaljohann's discharge is Widroe's admission that
he never discussed her alleged deficiencies with Hendricks,
who was Schmaljohann 's immediate supervisor and to
whom she was directly responsible for the quality of her
work. Furthermore, Schmaljohann testified that Dr.
Widroe never complained or informed her that he was
dissatisfied with her work.
Credibility-Discussion-Conclusions
'The testimony of Veronte and Widroe has been carefully
662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
considered and their demeanor on the witness stand
observed and it is concluded that their testimony alleging
Schmaljohann was discharged for valid reasons and not
because of her union activities is not worthy of belief.5 The
Respondent, of course, believes otherwise. This diversity of
views raises an issue of credibility which is resolved in
favor of the versions told by the General Counsel's
witnesses . Based upon the foregoing recital of the facts in
this case and upon the substantial evidence on the record
appraised as a whole, and on the straightforward testimony
of Schmaljohann, Wills, and Hendricks, the General
Counsel's witnesses, Veronte's generally vague denials and
unimpressive, if not, in some instances, incredible reasons
given for discharging Schmaljohann are not credited.
Likewise, Widroe's testimony, as indicated above and
below, was ineffective to rebut the evidence elicited by the
General Counsel showing that Schmaljohann's discharge
was motivated, in part at least, by discriminatory consider-
ations within the meaning of Section 8(a)(3) of the Act.
Moreover, the witnesses for the General Counsel appeared
to be sincere and truthful witnesses, and the events related
by them follow a logical sequence, which are consistent
with the attendant circumstances in this cases
Having resolved the credibility issue as to whose version
of the facts herein related shall be accepted as true, the
next problem to be decided is a legal question: Whether
the discharge of Schmaljohann was, in substantial and
controlling part, motivated by union animus in violation of
Section 8(a)(3) of the Act?
In order to find a violation by an employer of Section
8(a)(3) of the Act (29 U.S.C. Section 158(a)(3)), three
requirements must be met: (1) employer discrimination as
to hire or tenure of employment; (2) a resulting encourage-
ment or discouragement of membership in a union; and (3)
antiunion motive.? In the law of labor relations, the term
"discrimination" most often refers to inequality of treat-
ment based upon discriminatory employment practices on
the part of employers to discourage employees' organiza-
tional activities for collective-bargaining purposes. Howev-
er, the Act does not circumscribe an employer's right to
hire, discipline, or discharge an employee for reasons not
forbidden by the Act, even though the employee may be an
active union adherent or advocate. The employer can hire
and fire at will, so long as his action is not based on union
membership or activities or intent to interfere with the
purposes of the Act.8
The Respondent maintains that Schmaljohann was
discharged for good cause. The record reveals otherwise.
She was an efficient employee and the alleged faults
ascribed to her were of a "petty" and "minor" nature.
Based upon the virtually uncontradicted testimony of Wills
and Hendricks, as well as Schmaljohann's satisfactory
written evaluation report, it is found that the assigned
5 N.L.R.B. v. James Thompson & Co., Inc., 208 F.2d 743, 746 (C.A. 2).
6 Universal Camera Corporation v. N. L. R. B., 340 U.S. 474, 495, 496;
N.L.R.B. v. Dinion Coil Company, Inc., 201 F.2d 484 (C.A. 2).
7 N.L.R.B. v. Great Dane Trailers, Inc., 388 U.S. 26, 32-33 (1967).
8 12 Labor Law Journal 325.
9 Santa Fe Drilling Company v. N.L.R.B., 416 F.2d 725, 729 (C.A. 9,
1969). Shattuck Denn Mining Corporation v. N.L. R. B., 362 F.2d 466, 470
(C.A. 9, 1966).
10 N.L.R.B. v. Miller Redwood Company, 407 F.2d 1366, 1369 (C.A. 9,
1969), citing Universal Camera Corporation v. N. L. R. B., 340 U.S. 474 at 488.
reasons for discharging her were pretextual, and that
Respondent discharged Schmaljohann because of her
union activity and in order to rid itself of a leading union
adherent. Thus, the crucial issue is one of fact: What was
the actual motive for the discharge?9 Because the issue is
one of subjective intent, direct evidence is rarely obtaina-
ble and consequently the trier of the facts "may rely on
circumstantial as well as direct evidence and his inference
and finding on motivation must prevail where it is
reasonable and supported by substantial evidence on the
record considered as a whole." 10 Here the evidence
supports the inference that the Respondent discharged
Schmaljohann because it had learned that'she was in the
forefront of union activities and the person to whom the
employees turned for information and advice because of
her membership in the Union herein and her knowledge of
what they might expect in wages and other benefits if they
voted in the Union based upon her experience when she
worked at another hospital in the area whose employees
were represented by the same union.
Moreover, Veronte was well aware that Schmaljohann
was a union proponent as Hendricks, her supervisor, not
only told Veronte this but she also suggested to him that
Schmaljohann should be terminated." On January 6, 1973,
1 day after Schmaljohann's discharge, Veronte interrogat-
ed Moerer about union activities at the hospital. In
consequence, Veronte not only knew of Schmaljohann's
union activities at the time he summarily discharged her on
her payday with no advance notice or severance pay, but
also in conjunction with his union hostility, it is evident
that in appraising the conflicting evidence as to the reason
for her discharge, the evidence preponderates in favor of a
finding that proscribed motives, namely, Schmaljohann's
protected and concerted activities, were the significant and
controlling determinant in the Respondent's decision to
discharge her, and the legitimate business considerations,
based on her alleged shortcomings, were pretexts to cloak
the true ground for the discharge.12
Furthermore; the timing and precipitous nature of her
discharge, as well as Respondent's union animus, are
additional factors from which an inference of unlawful
discrimination may be drawn. "Coincidence in union
activity and discharge renders an employer vulnerable
.. " 13 This is particularly so where, as here, Schmaljo-
hann was never given any warning prior to her discharge.
Finally, Veronte's shifting reasons for explaining his
decision to fire Schmaljohann, are often indicative of a
discriminatory intent.14 For instance, his vague answer to
her question asking the reason for her discharge, as related
by the credited testimony of Schmaljohann when he told
her: "It's many things ... I can't put my finger on any
11 On cross-examination , Veronte acknowledged that the Union herein
was negotiating in October with the Belmont Hospital in Northern
California, also owned by Community Psychiatric Centers.
12 N.L.R.B. v. Whitin Machine Works, 204 F.2d 883. 885 (C.A. I).
1:1 N.L.R.B. v. Council Manufacturing Corporation, 334 F.2d 161, 164
(C.A. 8. 1964). Accord: Signal Oil and Gas Co. v. N.L.R.B., 390 F.2d 338,
342 (C.A. 9, 1968); N.L.R.B. v. Tri-State Stores, Inc., 477 F.2d 204 (C.A. 9,
1972).
14 Dant & Russell Ltd., 92 NLRB 307, 320 ; Intertown Corp., 90 NLRB
1145. 1148.
WALNUT CREEK HOSPITAL 663
one certain thing...." and then telling her that he and
Dr. Widroe believed her to be disloyal and not trustwor-
thy.15 In addition , Veronte charged her with failing to
stamp the mail as it was received , which he himself
described as "petty." Contradictory of his alleged reason
that Schmaljohann was inefficient is his offer during her
exit interview that he would be happy to recommend her
for another job as she was a "superior worker ." This is not
the normal reaction of an employer who accuses his
employee of being disloyal and inefficient . Belieing the
truth of Veronte's assertion is not only the corroborative
testimony of Hendricks and Wills that Schmaljohann was
both a loyal and satisfactory employee , but also her
October 27 evaluation report and pay raise on November
1. The giving of contradictory reasons may, of course, be
considered in determining the real motive ,16 and inconsis-
tent explanations are a circumstance indicating the
motivation .17 Then too, Veronte gave other reasons at the
trial for her discharge which he did not mention to either
Schmaljohann or Wiils . 18 I view as afterthoughts the other
reasons which Veronte raised for the first time at the trial
and not at the time when he discharged Schmaljohann.19
For all these reasons , Respondent's discharge of Schmaljo-
hann is found to be motivated , at least in part, by union
animus, and therefore , is an unfair labor practice within
the meaning of Section 8(a)(3) of the Act.
C. The Alleged Violations of Section 8(a)(l)
The General Counsel alleges that Respondent violated
Section 8(a) (1) of the Act, when Respondent , by Raymond
Veronte and Grace Ingram, interrogated and granted
employees additional holidays, pay raises, and created the
impression that employees were under surveillance. The
uncontradicted evidence reveals that Veronte asked Lucille
Moerer on January 6, 1973, if she had talked to union
representatives to which she replied she had not . Moerer
did testify that on February 16, 1973 , she had signed "a
petition" on behalf of Local 250, the Union herein. On
February 20, Moerer testified that she turned over to
Veronte literature which the Union had given her and that
he then inquired if she had signed "anything" to which she
replied in the negative . Veronte stated that Bugnatto, an
employee , had told him that she had , and Ingram , another
employee, also told him the same thing. Moerer continued
that Bugnatto told her on April 16, 1973, that he had
attended a "department heads" meeting and Veronte
stated that if the Union got in there would be a strike and
he asked the, department heads to be on the lookout for
employees in the event that the hospital's personnel went
out on strike 20
15 Both Hendricks and Schmaljohann testified that on the evening of
January 5, 1973, after Veronte discharged her, she phoned Hendricks from
her home , and told her she had seen an application at the office by someone
who had applied for Hendrick 's job . It is uncontroverted that Schmaljohann
was authorized to open mail which was not marked confidential.
16 N.L.R.B. v. Condenser Corporation of America, 128 F.2d 67 (C.A. 3).
17 N. L.R.B. v. Somerset Shoe Company, Ill F.2d 681 (C.A. 1).
18 Based upon the evidence in this case, little credence is ascribed to
Respondent 's charge that Schmaljohann disregarded the importance of
maintaining confidential information. The record fails to reveal any
corroboration of Respondent 's contention that Schmaljohann had "extreme
difficulty" in dealing with doctors or that her maintenance of charts and
Moerer also testified that Veronte told her that Local 250
was not a "good" Union and that another hospital's
employees "were voting to negotiate to go out of the Union
because they were a bad Union and he didn 't want to see
us get mixed up with something like that . And I asked him
what they had done that was bad but he never gave me any
reason why they were bad ." Moerer also asked Veronte
whether it was true tlillt the hospital would not negotiate
with the Union to which Veronte replied that they did not
have "to accept the Union" and that if it was selected by
the employees in the impending election "some good
valued employees would quit and he didn 't want to lose
them."
Synthia Gail Berger was employed as a cook by
Respondent from April 1972 to May 1973. She corroborat-
ed some of Moerer's testimony. Berger testified that on
February 26, 1973, Grace Ingram, whom she described as
directing her work, asked her if she had "signed any papers
to do with the Union" to which she replied, "it was not any
of her concern." Ingram demanded an answer whereupon
Berger told her that she had . On March 1 , 1973, Berger
received a salary increase and an additional paid holiday.
It would appear that Veronte was hostile to union
activity in the hospital as evidenced by his discharge of
Schmaljohann and his describing the Union as "bad" and
stating that the Respondent did not have to accept the
Union. In this context, therefore, when Veronte questioned
Moerer as to whether she talked to union representatives
on the hospital premises and whether she had signed a
petition circulated by the Union among the employees, he
thereby engaged in proscribed conduct . It is found,
accordingly, that Veronte unlawfully interrogated Moerer
in violation of Section 8(a)(l) of the Act.21
On March 1 , 1973, 1 day before the Union filed its
representation petition on March 2, the Respondent
notified all of its personnel of "salary changes" effective
March 1, 1973, and the granting to them of one additional
paid holiday, provided they had been employed full time
for 90 days. The Act does not require an employer pending
an election to refrain from making economically motivated
decisions involving business matters or any changes in
working conditions necessary to the continual and orderly
operations of its business, absent a promise of benefits
conditioned upon rejection of the Union and /or any causal
connection between such changes and the rights accorded
to employees by the Act. Normal business decisions must
continue to be made and frequently are necessary for the
efficient operation of an enterprise , even though it occurs
during an organizational campaign.22
The burden of proof is on the General Counsel to
establish and sustain the allegations of his complaint by a
records was not satisfactory.
19 Peoples Motor Express, Inc. v . N.LR.B., 165 F.2d 903 . 905-906 (C.A.
4).
20 Bugnatto was described as "the head housekeeper" who took care of
the diningroom floors and assigned work to other employees, as well as
maintenance of the hospital kitchen and "grounds," and "other parts of the
hospital ." Bugnatto . voted at the election conducted by the Board on April
21, 1973.
21 Brake Parts Co., 178 NLRB 247, 252-253.
22 N.LR.B. v. W.T. Grant Company, 208 F .2d 710, 712 (C.A. 4); Burns
Brick Company, 80 NLRB 389.391.
664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
preponderance of the probative and credible evidence, and
when it is charged these benefits were granted to
Respondent's employees under circumstances which vio-
lated Section 8(a)(1) of the Act, this allegation must be
established by a preponderance of the evidence that
Respondent granted and announced the benefits on March
1, 1973, for the purpose of causing the employees to reject
the Union. I am not convinced that the General Counsel
has established this. Accordingly, this allegation of the
complaint will be dismissed.
It is alleged that Grace Ingram interrogated and engaged
in surveillance in violation of Section 8(a)(1) of the Act.
Other than a passing reference to Ingram as being "head"
of the dietary department, there was no evidence elicited
by the General Counsel either to show that Respondent
was liable for any proscribed conduct of Ingram vis a vis
the employees or that she was acting for Respondent.
Accordingly, the General Counsel has not proven by a
preponderance of the evidence that Grace Ingram was held
out by Respondent as its agent 23 or was acting as
Respondent's agent or was authorized by Respondent to
do those acts alleged in the complaint. As such burden is
upon the General Counsel, there has been a failure of
proof to impute Ingram's alleged conduct to Respondent.
Moreover, there is not a scintilla of evidence with respect
to alleged surveillance on the part of the Respondent.
Accordingly, it will be recommended that these allegations
in the complaint be dismissed.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth above, have a
close, intimate, and substantial relation to trade, traffic,
and commerce among the several states and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
Upon the foregoing findings and conclusions, there are
hereby made the following:
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. The Union, Hospital and Institutional Workers
Union, Local 250, Service Employees International Union,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
3. By interfering with, restraining, and coercing the
employees in the exercise of the rights guaranteed in
Section 7 of the Act, as specified in this Decision, the
Respondent has engaged in, and is engaging in, unfair
labor practices within the meaning of Section 8(a)(1) of the
Act.
4. By discriminating with regard to the hire and tenure
of employment of Roberta A. Schmaljohann, Respondent
23 Cf. Tyler Pipe Company, 171 NLRB 308, 309.
24 In the event no exceptions are filed as provided by Sec. 102.46 of the
Board's Rules and Regulations , the findings, conclusions , recommenda-
tions, and recommended Order herein shall, as provided in Sec. 102.48 of
said Rules and Regulations , be adopted by the Board and become its
findings, conclusions, and order , and all objections thereto shall be waived
discouraged membership in the aforementioned Union and
committed unfair labor practices within the meaning of
Section 8(a)(3) of the Act.
5. The allegations of paragraphs VII, (b), (c), (d), (e),
(f), and (g) of the complaint are dismissed.
THE REMEDY
It is recommended that the Respondent cease and desist
from violating Section 8(a)(1) and (3) of the Act, and that it
offer reinstatement to Roberta Schmaljohann to the
position she held on January 6, 1973, and that it reimburse
her for any loss of earnings suffered by reason of the
discrimination against her, by paying to her a sum of
money equal to the amount she would have earned from
January 6, 1973, until such discrimination has been fully
eradicated, less her net earnings during the period of such
discrimination, with said reimbursement to be computed as
provided in F. W Woolworth Company, 90 NLRB 289, and
Isis Plumbing & Heating Co., 138 NLRB 716.
Upon the foregoing findings of fact, conclusions of law,
and upon the entire record, and pursuant to Section 10(c)
of the Act, there is issued the following recommended:
ORDER 24
Respondent , Walnut Creek Psychiatric Hospital d/b/a
Walnut Creek Hospital , its officers , agents , successors, and
assigns, shall:
1. Cease and desist from:
(a) Discriminatorily discharging its employees or other-
wise discriminating against any employee because of his or
her activity on behalf of, or membership in, Hospital and
Institutional Workers Union, Local 250, Service Employ-
ees International Union, AFL-CIO, or any other labor
organization.
(b) Interrogating employees with respect to their union
membership or activities.
(c) In any other manner interfering with , restraining, or
coercing its employees in the exercise of their rights under
Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Make whole Roberta A. Schmaljohann in the manner
set forth in the section of this Decision entitled "The
Remedy" for losses she suffered as a result of her
discharge.
(b) Preserve and, upon request , make available to the
Board or its agents , for examination and copying, all
payroll records , social security payment records, timecards,
personnel records and reports , and all other records
necessary to analyze the amount of backpay due and rights
of employment under the terms of this Decision.
(c) Post at its hospital in Walnut Creek, California,
copies of the attached notice marked "Appendix." 25
Copies of said notice on forms provided by the Regional
Director for Region 20 shall , after being duly signed by
for all purposes.
25 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board " shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
WALNUT CREEK HOSPITAL 665
Respondent , be posted by Respondent immediately upon
receipt thereof , and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered by
any other material.
(d) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of the receipt of this
Decision , what steps Respondent has taken to comply
herewith.