Western Clinical Laboratory, Inc.

National Labor Relations Board - Board Decisions

Jul 27, 1976

225 N.L.R.B. 725 (N.L.R.B. 1976)

WESTERN CLINICAL LABORATORY, INC.
Western Clinical Laboratory , Inc. and United Associa-
tion of Clinical Laboratory Technologists of North-
ern California, affiliated with Service Employees
International Union Local 22, AFL-CIO
Western Clinical Laboratory, Inc. and Service Em-
ployees International Union Local 22, AFL-CIO
Western Clinical Laboratory, Inc. and Geraldine N.
Mastin . Cases 20-CA-9521, 20-CA-9627, 20-CA-
9680, 20-CA-10104, 20-CA-10119, and 20-CA-
10165
July 27, 1976
DECISION AND ORDER
By MEMBERS FANNING, PENELLO, AND WALTHER
On December 22, 1975, Administrative Law Judge
Stanley Gilbert issued the attached Decision in this
proceeding. Thereafter, both the General Counsel
and Respondent filed exceptions and supporting
briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.
The General Counsel has excepted to the Adminis-
trative Law Judge's dismissal of an allegation that by
requiring employee Cupler to take paid vacation time
for time spent at a Board hearing, under subpena,
when he preferred to take leave without pay, Respon-
dent violated the Act. We find merit in this excep-
tion.
As more fully detailed in the Administrative Law
Judge's Decision, employee Cupler, a subject of
other 8(a)(3) and (1) allegations herein, was subpe-
naed by the General Counsel and was required to be
present at the hearing for its duration. These facts
were related to Respondent's supervisor, Hueners.
Although Cupler only testified 1 day, he remained at
the hearing throughout.
Although Cupler made no request for a leave of
absence for the time he attended the hearing, he
marked "0" on his timecard under hours worked for
the days he attended the hearing. On March 21,
Chief Technologist Williamson inquired of Cupler
what the zeroes meant, and was informed that Cupler
did not want any pay (although he made no mention
of a leave of absence). On March 28 Cupler received
725
a check covering the initial week of the hearing
which compensated Cupler for the day he testified as
though he had worked,' and charged the other days
he had attended the hearing against his vacation
time. When he questioned Williamson as to this pro-
cedure, he was told it was Lab Director Keenan's
decision. Williamson also told him that leaves of ab-
sence for more than 1 day had to be applied for in
writing. On March 31, Cupler requested in writing
that he be granted leave without pay retroactively for
the days he was at the hearing the previous week and
for the remainder of the time necessary to complete
the hearing. This request was denied by Williamson
because: (a) leaves of absence in excess of I day re-
quire prior approval; and (b) present demands on the
laboratory staff require maximum attendance.
Cupler's next paycheck also compensated him for
days spent at the hearing by charging it against his
vacation time.'
Crediting Keenan's and Williamson's testimony
concerning company policy relating to leaves of ab-
sence-that they had followed such policy in regard
to Cupler, and that they were not aware that Cupler
was required by subpena to remain at the hearing
(notwithstanding the fact that Hueners did know
prior to the hearing)-the Administrative Law Judge
found that charging Cupler with vacation time was
not calculated to discourage him from participating
in a Board hearing nor was it in reprisal for his hav-
ing done so. In support of this finding, the Adminis-
trative Law Judge noted that Respondent had paid
all witnesses for the days they testified; that it had
treated all witnesses alike; that Cupler had received
leaves of absence in the past when he had no vaca-
tion time, and could therefore expect to be treated
the same in the future; and that Respondent no
doubt would have granted the leave of absence had it
known in advance of the subpena requirement.
Based on the foregoing, and the fact that Cupler
had in the past elected to take leave without pay after
he had accepted payment for his accumulated vaca-
tion time, the Administrative Law Judge rejected the
General Counsel's contention that the required use
of vacation time for a witness to remain at a Board
hearing was so "inherently destructive of employee
interests" that a violation may be found without need
for proof of an underlying improper motive 7 and
1 Cupler also received regular pay for I other day he attended the hearing.
Respondent gave all the witnesses their regular pay for the days on which
they testified
2 Randolph, another General Counsel witness who remained at the hear-
ing throughout, was similarly charged with vacation time for the days he did
not testify However, he acquiesced in such procedure
3 The General Counsel compared N L R B v John Brown, et al d/b/a
Brown Food Stores, 380 U S 278 (1965), N L R B v Fleetwood Trailer Co,
Continued
225 NLRB No. 96
726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
found that, under the circumstances present herein,
Respondent's actions were not "inherently destruc-
tive of employee interests."
While we agree with the Administrative Law Judge
that the evidence here does not show that Re-
spondent's charging Cupler with vacation time for
the period he spent at the Board hearing, under sub-
pena, was in reprisal for his having testified at the
hearing, or was calculated to discourage him from
participating in a Board hearing, nevertheless we be-
lieve that Respondent's actions so interfered with
Cupler's rights, and with the Board's processes, that
such actions are violative of Section 8(a)(3), (4), and
(1) of the Act.
In order for the Board to fulfill its obligation to
adequately administer the Act, it is necessary that its
processes not be unjustifiably fettered by anything
that precludes parties from participating in such pro-
cesses free from coercion or restraint . In our opinion,
forcing an employee who attends a Board hearing as
a witness under subpena to use his accrued vacation
time, when he would prefer to take leave without
pay, amounts to such a restraint regardless of the
motive behind such action. In our judgment, poten-
tial witnesses will be reluctant to take the time to
testify at Board hearings if they fear the loss of their
accrued vacation time by doing so. Thus, the mere
existence of such an apprehension would have an ad-
verse effect upon the Board's ability to conduct fair
and complete proceedings.
Morever, although the Administrative Law Judge
in this case credited Respondent ' s witnesses ' testimo-
ny that they followed the normal company policy
pertaining to the granting or denial of leaves of ab-
sence , it is not clear that circumstances such as were
presented herein, namely, leave to attend a hearing
under force of subpena, were contemplated by Re-
spondent in formulating its policy concerning leaves
of absence. Indeed, Respondent's employee policy
manual does not include such an occurrence as
grounds for obtaining such leave.
Further, although Respondent assertedly did not
know that Cupler was under subpena to remain at
the hearing, and denied his request for leave partially
on the stated ground that "present demands on the
laboratory staff require maximum attendance," it did
not request that he leave the hearing and return to
work.
For the foregoing reasons, we find that
Respondent's requirement that Cupler use his vaca-
tion time for attendance at the hearing was in viola-
tion of Section 8(a)(3), (4), and (1) of the Act.
Inc, 389 U S 375 (1967), and N L R B v Great Dane Trailers, Inc, 388 U S
26 (1967)
In order to remedy this violation, we will order
Respondent to provide Cupler, upon request, leave
without pay for the number of days he was required
to use his vacation time to attend the Board hearing.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modified
below, and hereby orders that the Respondent, West-
ern Clinical Laboratory, Inc., Roseville, California,
its officers, agents, successors , and assigns , shall take
the action set forth in the said recommended Order,
as herein modified:
Insert the following as paragraph 1(h) and reletter
the subsequent paragraph accordingly:
"(h) Requiring employees, against their wishes, to
use vacation time while attending a National Labor
Relations Board hearing under subpena."
2. Insert the following as paragraph 2(c) and relet-
ter the subsequent paragraphs accordingly:
"(c) Upon request, allow James Cupler to take
leave without pay for the number of days he was
required to use his vacation time while attending the
National Labor Relations Board hearing."
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
WE WILL NOT unlawfully interrogate employ-
ees about their attitudes and those of their fel-
low employees toward United Association of
Clinical Laboratory Technologists of Northern
California, Service Employees International
Union Local 22, AFL-CIO, or any other labor
organization.
WE WILL NOT unlawfully threaten employees
that any attempt on their part to obtain union
representation would be futile.
WE WILL NOT unlawfully threaten the job se-
curity of employees because of their adherence
to the above-named Union, or any other labor
organization.
WE WILL NOT unlawfully solicit grievances
from employees and promise to correct them in
order to undermine their adherence to the
WESTERN CLINICAL LABORATORY, INC 727
above-named Union, or to any other labor orga-
nization.
WE WILL NOT unlawfully attempt to cause
other employers to terminate or otherwise disci-
pline a person in its employ because he or she
testified in a Board proceeding.
WE WILL NOT discourage membership in the
above-named Union, or any other labor organi-
zation, by discriminatorily giving employees
poor evaluations.
WE WILL NOT discourage membership in the
above-named Union, or any other labor organi-
zation, by discriminating against employees in
regard to hire or tenure of employment or any
term or condition thereof.
WE WILL NOT require employees, against their
wishes, to use vacation time while attending a
National Labor Relations Board hearing under
subpena.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exer-
cise of rights guaranteed them under Section 7
of the Act.
WE WILL offer Monte Young immediate and
full reinstatement to his former job or, if his job
no longer exists, to a substantially equivalent po-
sition , without prejudice to his seniority or other
rights and privileges, and WE WILL make him
whole for any loss of pay suffered by him by
reason of his discriminatory discharge.
WE WILL expunge from the personnel records
of Monte Young and Thomas Gillespie the dis-
criminatory poor job evaluations issued to them
on September 26, 1974, and from the personnel
records of James Cupler the discriminatory poor
job evaluation issued to him on October 28,
1974.
WE WILL, upon request, allow James Cupler to
take leave without pay for the number of days
he was required to use of his vacation time while
attending the National Labor Relations Board
hearing.
9627 filed by the Union on October 9, 1974, and a charge
in Case 20-CA-9680 filed by the Union on October 30,
1974, and an order consolidating the aforesaid cases, a
consolidated complaint with respect to said three cases was
issued January 31, 1975. Said complaint , as amended dur-
mg the course of the hearing , alleges that Western Clinical
Laboratory , Inc., hereinafter referred to as the Respondent
or WCL, violated Section 8(a)(1) and (3) of the Act. Re-
spondent by its answer denies that it engaged in conduct
violative of the Act as alleged.
Pursuant to notice , a hearing was held in Roseville, Cali-
fornia, on March 11-14, 18-21, 25-28, and April 1 and 2,
1975. Appearances were entered on behalf of all the par-
ties.
Based on a charge filed on April 4, 1975, in Case 20-
CA-10104 by Service Employees International Union Lo-
cal 22 , AFL-CIO , hereinafter referred to as the Union,' a
charge filed in Case 20-CA-10119 by the Union on April
9, 1975, and a charge filed in Case 20-CA-10165 by Geral-
dine Mastin on April 23, 1975, as amended on May 9,
1975, and an order consolidating said three cases, a consol-
idated complaint was issued with respect to said three cases
on May 14, 1975. Said consolidated complaint in the latter
three cases alleges that Respondent engaged in further vio-
lations of Section 8 (a)(1), (3), and /or (4) of the Act. Re-
spondent by its answer to the above -mentioned second
consolidated complaint denies that it engaged in the unfair
labor practices alleged therein.
By motion dated May 16, 1975, General Counsel moved
to reopen the hearing in the proceeding with respect to
Cases 20-CA-9521, -9627, and -9680 and consolidate with
said cases for hearing Cases 20-CA- 10104, -10119, and
-10165. On May 19, 1975, 1 issued an order to show cause
why the motion should not be granted. Thereafter, Re-
spondent filed its opposition to said motion on May 28,
1975. On May 28, 1975 , I issued an order 2 granting Gener-
al Counsel 's motion and reopening the record for the pur-
pose of receiving evidence relating to the second consoli-
dated complaint . Pursuant to notice , a further hearing was
held in Roseville, California, on July 22, 23, and 24, 1975.
Briefs were timely filed by General Counsel and Respon-
dent which have been fully considered.
Based upon the entire record 3 in this proceeding and my
observation of the witnesses as they testified, I make the
following:
WESTERN CLINICAL LABORATORY, INC.
DECISION
STATEMENT OF THE CASE
STANLEY GILBERT, Administrative Law Judge: Based
upon a charge filed on September 3, 1974, in Case 20-CA-
9521 by United Association of Clinical Laboratory Tech-
nologists of Northern California, affiliated with Service
Employees International Union Local 22, AFL-CIO, here-
inafter referred to as the Union, a charge in Case 20-CA-
Although the name of the labor organization differs from the name of
the labor organization in the aforementioned cases, it appears that no pur-
pose would be served in attempting to differentiate them and for the pur-
poses of this hearing it appears appropriate to consider said labor organiza-
tion as the same labor organization which was involved in the
aforementioned three cases
2 Respondent requested leave to appeal said order which was denied by
the Board
b In reviewing the transcript , it became apparent to me that the reporter
had omitted testimony between 11 13 and 14 on p 1660 This omission was
called to the reporter 's attention and on November 11, 1975, he submitted
an addendum to the transcript of the hearing on March 26, 1975, consisting
of pp 1660(a) through (u) This addendum consists of the testimony which
should have been set forth between 11 13 and 14 on p 1660 (It is assumed
that copies of this addendum were furnished to all the parties entitled to
copies of the transcript ) This decision is predicated upon the entire tran-
script of the proceedings , including the aforesaid addendum
728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
pital, WCL took over the operation of the laboratory as of
July 1, 1974. It was also apparent from the final award that
all of the personnel employed by the hospital in the labora-
tory were to be taken over by WCL and that their terms
and conditions of employment and accrued benefits would
be continued by WCL. It appears, however, that many of
the employees, both prior to and after the takeover of the
laboratory by WCL, were concerned about their job securi-
ty, terms and conditions of employment, and benefits ac-
crued prior to the takeover, even though all employees
were assured by WCL, at least by mid-June 1974, that they
would be retained in the employ of WCL after the takeover
and that there would be no changes in the terms of their
employment or loss of accrued benefits.
Among the personnel who were, prior to July 1, employ-
ees of the hospital were Manley Williamson, chief technol-
ogist, Thomas Oda, supervising medical technologist, and
Gary Hueners, assistant chief technologist.5 Dr. William
Keenan,' who served as the laboratory director on behalf
of WCL, continued in his capacity as laboratory director
after July 1, 1974. Thus, prior to July 1, all of the personnel
in the laboratory except Dr. Keenan were employees of the
hospital and the aforementioned supervisory personnel re-
mained in their same capacities after July 1, 1974, of which
the employees had been previously informed.
The laboratory employees were made aware of the im-
pending takeover by WCL long before July 1, 1974. In
May or June, a group of the laboratory employees, includ-
ing Hueners, assistant chief technologist, retained Attorney
John Moger to represent them to insure that their rights
were protected in the arbitration proceeding concerning
the terms of the assumption by WCL of the operations of
the laboratory.
Sometime in June , the technologists formed an organiza-
tion which they named the United Association of Clinical
Laboratory Technologists of Northern California, herein
referred to at times as the Association, but more often re-
ferred to herein and in the proceeding as the Union. Monte
Young was elected president of that organization; Kenneth
Randolph was elected vice president; Lou Alves was elect-
ed recording secretary; and Howard Young was elected
sergeant-at-arms. On June 24, 1974, the Association filed a
petition with the Board in Case 20-RC-12165 seeking an
election of all medical technologists employed in the medi-
cal laboratory at Roseville Community Hospital. The em-
ployer named in the petition was Western Clinical Labora-
tory, Inc., and the petition was signed by Monte Young as
president of the Association. According to Keenan, he re-
ceived a copy of said petition on or about June 24. As
Western Clinical Laboratory had not, at the time of the
filing of the petition, taken over the operation of the labo-
ratory at Roseville Hospital, said petition was withdrawn.
A new petition was filed on July 5, 1974, in Case 20-RC-
12194. Thereafter on July 17, 1974, an amended petition
was filed, indicating that the Association had affiliated
with Service Employees International Union, Local 22,
AFL-CIO. Subsequently, pursuant to a Stipulation for
Certification Upon Consent Election, and election was
5 All admitted agents and supervisors of WCL (ostensibly as of July 1,
1974)
6 An admitted agent and supervisor of WCL
Respondent, a Nevada corporation with its principal of-
fice in Reno , Nevada, owns, operates , and directs various
medical laboratories in the States of Nevada and Califor-
nia, including a laboratory in Roseville, California, which
are engaged in producing medical laboratory analyses.
During the past calendar year , Respondent , in the course
and conduct of its business operations , received gross reve-
nues in excess of $500,000. During the past calendar year,
Respondent , in the course and conduct of its business op-
erations , performed services across state lines valued in
excess of $50,000.
As is admitted by Respondent , it is, and at all times
material herein has been , an employer engaged in com-
merce or in operations affecting commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
As is admitted by Respondent, the Union is, and at all
times material herein has been, a labor organization within
the meaning of Section 2(5) of the Act. It is also found that
United Association of Clinical Laboratory Technologists
of Northern California (prior to its affiliation with Local
22), which has also been referred to herein and at the hear-
ing as the Union, is a labor organization within the mean-
ing of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
Background Information
This proceeding involves the operation by Respondent
of the medical laboratory at Roseville Community Hospi-
tal in Roseville, California. Prior to July 1, 1974, the said
medical laboratory was owned and operated by the hospi-
tal itself under a contract with WCL whereby WCL fur-
nished a director and consulting pathologist and the hospi-
tal furnished the physical plant, equipment, supplies, and
personnel.4
It appears that, based upon an "opinion by the Attorney
General," there was a question as to the validity of the
contract between the hospital and WCL. As a result the
two entities engaged in negotiations with respect to the op-
eration of the laboratory. When an impasse developed in
the negotiations, the parties submitted the matter to arbi-
tration. In the late spring of 1974, it became apparent, as a
result of the release of an interim award by the arbitrator,
the WCL would take over the complete operation of the
laboratory. Although the final award was not issued until
August 27, 1974, by agreement between WCL and the hos-
4 There are references in the record to an entity named Physicians Con-
sulting Laboratories Although it appears that said Physicians Consulting
Laboratories and WCL are two separate entities performing different func-
tions, the parties have stipulated for the purpose of this proceeding only that
one may be considered the alter ego of the other and that all references to
either entity may be designated as Western Clinical Laboratory, Inc
WESTERN CLINICAL LABORATORY, INC. 729
conducted on August 2, 1974, in a unit of all medical tech-
nologists employed in the medical laboratory at Roseville
Community Hospital. The official tally of ballots of the
election shows that, of approximately 14 eligible voters, 7
cast ballots for and 5 cast ballots against the Petitioner.
There were three challenged ballots which were sufficient
in number to affect the results of the election. On August 9,
1974, the Respondent filed its objections to the election.
On February 3, 1975, the Regional Director issued a Re-
port on Challenged Ballots and Objections to Election, Or-
der and Notice of Hearing, to which exceptions were filed
with the Board. I have not been informed of any further
developments in Case 20-RC-12194.
The Allegations of Unfair Labor Practices
Following is set forth the unfair labor practices alleged
in the two consolidated complaints herein:
(a) On or about June 27, 1974, Respondent unlawfully
interrogated employees, threatened them with reprisals be-
cause of their union activity, and unlawfully solicited griev-
ances from them in order to undermine their support for
the Union.
(b) On or about July 2, Respondent unlawfully threat-
ened employees with reprisals because of their union activ-
ity.
(c) On or about July 28, Respondent unlawfully solic-
ited employees to bargain through the Association and to
drop the Association's affiliation with Local 22.
(d) On or about Auguat 26, 1974, Respondent unlawful-
ly issued a written reprimand to Kenneth Randolph.
(e) On or about August 28, 1974, Respondent unlawful-
ly issued a written reprimand to James Cupler.
(f) On or about September 10, 1974, Respondent unlaw-
fully terminated Cupler's overtime work because of his
membership in or activities on behalf of the Union.
(g) On or about the dates set forth after their respective
names, the following employees were unlawfully given
poor job evaluations by Respondent because of member-
ship in or activities on behalf of the Union:
Monte Young September 26, 1974
Thomas Gillespie September 26, 1974
James Cupler October 28, 1974
Isabel Hernandez October 10, 1974 and
February 5, 1975
(h) On or about October 3, 1974, Respondent discnmi-
natorily discharged Thomas Gillespie.
(i) On or about October 28, 1974, Respondent discrimi-
natorily discharged Monte Young.
(l) On several occasions commencing April 2, 1975, Re-
spondent unlawfully attempted to cause the termination,
discipline, or reprimand of Geraldine Mastin, an employ-
ee of Roseville Community Hospital, because she gave tes-
timony in the earlier hearing in this proceeding.
(k) On or about April 3, 1975, Respondent unlawfully
transferred Cupler and Randolph from the day shift to the
evening shift.
(1) On or about April 7, 1975, Respondent discriminato-
rily discharged Isabel Hernandez.
(m) Respondent unlawfully required Cupler to use his
vacation time for the days he was required to attend the
earlier hearing in this proceeding between March 11 and
April 2, 1975, under a subpoena issued by counsel for the
General Counsel.
Following is an analysis of evidence which General
Counsel and Respondent in their briefs apparently believe
to be material to the issues herein.
The Interviews on June 27
(Paragraphs VI(a), (b), and (c) of the First Complaint)
Keenan interviewed three employees on June 27, 1974,
during the course of which the General Counsel contends
Respondent engaged in conduct violative of the Act (inter-
rogation , threats, and solicitation of grievances ). It is noted
that this was prior to the takeover of the laboratory by
WCL.
It appears that prior to these interviews officials of WCL
held several general meetings during the month of June
with the technologists in which they explained WCL's poli-
cies and answered questions as to the effect of the takeover
of the laboratory by WCL. Keenan testified that he was
aware that there was considerable concern among the tech-
nologists as to their job security and to the benefits they
would have after the takeover. He testified that he had
attempted to assure them during the general meetings that
they would recieve the same salary rates and would contin-
ue to carry forward accumulated sick time . He further tes-
tified that in discussions with Williamson it was evident to
both of them that the concern of the technologists had not
been alleviated by the general meetings, that Williamson
suggested that perhaps individual interviews might allay
their apprehensions , and that he decided to start meeting
with them individually on June 25. Keenan was asked
whether the petition filed by the Association on June 24
had anything to do with his decision to meet with individu-
al technologists. His answer to that question was as fol-
lows:
Well, certainly the union petition stimulated me to
become aware of what at that time was an unknown
problem to me. I would say that the union petition
underscored a lack of communication that was not
apparent to me before. I was not aware of the appre-
hension of the technologists was such that they would
take a special effort to form an organization.
Keenan further testified that he talked to all the technolo-
gists individually (apparently between June 25 and 27) ex-
cept Howard Young and Monte Young, who were on vaca-
tion at the time, but that he talked to them at the first
opportunity after they returned.
It appears that the first of the interviews which General
Counsel contends gave rise to the unfair labor practices
alleged was the interview with Randolph on June 27. Ran-
dolph testified that Keenan began the conversation by ask-
ing Williamson and Hueners, who were both present, if
there was anything they wanted to ask him; that Wil-
liamson told him "that they needed a list of the names of
the members in the Union." (It is noted that at the time the
Association apparently had not as yet become affiliated
730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with Local 22.) Randolph further testified that he answered
that he did not think it was necessary for the Respondent
to have that information, "that all they needed was to
know that the majority of the technologists were repre-
sented." Randolph further testified that Keenan asked him
if he wanted to be treated as a laborer and that he replied
that he believed the technologists already were being treat-
ed as laborers. Randolph further testified that Keenan told
him that he had a letter from the NLRB and would he
want him (Keenan) to post it, to which he replied that he
thought so. Randolph also testified that the interview con-
cluded as follows:
A. I said that I didn't think that this union should
have any negative effects on his organization. If any-
thing, it should have nothing but positive effects.
Dr. Keenan then said, "There will be no effect at
all. That will be all."
Q. And that ended the conversation.
A. Right.
Williamson testified that he was present at Randolph's
interview but was called away midway through it. Wil-
liamson further testified that he did not hear Keenan make
any statement about a union to Randolph; he did not tell
Randolph that they needed a list of the union members;
and there was no conversation about the technologists
being treated as laborers or discussion "about the Union"
between Keenan and Randolph. As stated above, Wil-
liamson was not present during the entire interview, and it
is further noted that Keenan testified that in his interview
with Randolph "there was some kind of general discussion
of the Union."
Hueners testified that he was present at the interview
with Randolph; Keenan asked Randolph if he understood
the arbitration agreement and if he had any problems with
it, but he did not recall what Randolph's response was;
there was no discussion about unions; Williamson did not
say to Randolph "that they needed a list of members of the
Union"; Keenan did not ask Randolph if he wanted to be
treated as a laborer; and Keenan did not ask Randolph if
he wanted him to post the notice from the NLRB.
Keenan testified that he had no recollection of Wil-
liamson asking for a list of union members and that if he
had said something like that, he "would have thrown him
out of the office." Keenan further testified that he did not
recall asking Randolph if he wanted to be treated as a
laborer, but that he did indicate his opinion that medical
technologists were professional people and that he might
have made a comparison between professional persons and
laborers; that he did not recall Randolph saying that tech-
nologists were treated as laborers; and that he did not re-
call discussing the matter of posting the material that he
had received from the NLRB.
Prior to the next interview, Cupler made a telephone call
to John Moger, who had been hired as an attorney by some
of the technicians, as aforementioned, and told him that
Keenan was interviewing the technologists individually
and Moger in turn called Richard Will, who also entered
his appearance herein on behalf of the Union, and asked
him to go out to the laboratory and check into the prob-
lem. Will met with Keenan and both of them testified that
they had a conversation prior to Keenan's further inter-
views of the technologists. Will's testimony of the conver-
sation is as follows:
A. I informed Dr. Keenan who I was and that I was
out there on behalf of John Moger and was repre-
senting people who were organizing a union there. Dr.
Keenan then began to discuss with me or he began to
talk to me about his feelings about a union.
Q. Would you tell us what he said in that regard?
A. He said that he had completely negative feelings
about a union; that he did not want a union in West-
em Clinical Lab; that he did not see the need for a
union in Western Clinical Lab; that there would not
be a union in Western Clinical Lab if he could do
anything at all about it. He said that there were many
ways to stop this union and that he held all the cards.
He mentioned some of the ways. He mentioned that
he could bring in workers from across the street, if
necessary. Across the street, I believe he made refer-
ence to the fact that that referred to another lab which
he owned or was in control of. I was aware that there
was another lab that he controlled across the street, so
I did understand what he meant.
He also said that he could in fact just close the
whole lab in order to prevent the union coming in. His
feelings were that strong.
It should be noted at this point that the General Counsel
appropriately represented that the foregoing testimony was
not being presented as evidence of an unfair labor practice.
However, it was received as evidence of Keenan's state of
mind and has been considered in evaluating the record. In
addition, Will testified that Keenan stated to him that he
did not see any reason for having the "Union" and ex-
plained why he did not believe that the workers needed a
union. Keenan did not contradict any of the foregoing tes-
timony of Will and therefore it is credited.
Keenan testified, and his testimony is credited, that Will
asked him if he could be present when he talked to the
technologists. Keenan further credibly testified as follows:
I told him I would like him to be present. I told him
that I would like him-he was concerned that perhaps
something improper was being done. And, I told him
if there was anything I said or did that he felt was
improper during my interviews with the personnel to
immediately call that to my attention and without ar-
gumentation, I would decline or desist in what I was
discussing.
The next interview by Keenan was with Cupler, and
Will, Williamson, and Hueners were also present during
the interview. Cupler testified as to the interview as fol-
lows:
A. Yes. Dr. Keenan wanted to know if I personally
had any problems with him , had he not always been
fair with me, were there any other problems in the
laboratory that might have brought on the NLRB no-
tification.
I told Dr. Keenan that there were some problems in
the laboratory and that he had a communication
problem with the technologists , such as when asked
WESTERN CLINICAL LABORATORY, INC. 731
about benefits, that they had not been specific with us.
They had been evasive about things or noncommittal,
that they would take care of us, etc.
Q. That is what you told Dr. Keenan were the
problems?
A. Yes.
Q. Do you recall what Dr. Keenan's response was
to that?
A. I believe Dr. Keenan mentioned something
about the union activity and the conversation turned
to-was directed to Mr. Will. And, at that time Dr.
Keenan stated to Mr. Will-however, he was looking
at me. He appeared to be glaring at me. He said, there
appear to be some ringleaders here and the rest are
like sheep, followers. And, if we can get at the ring-
leaders, we can get to the problems involved.
Q. Okay. Did you have a response to that?
A. I told Dr. Keenan that I felt the conversation
was intimadating [sic] and that I could not be of any
further help to him at that time.
Cupler further testified that Keenan stated "that technolo-
gists who needed a union were inferior," to which he re-
sponded that he believed that they were no more than
highly trained laborers and that Keenan asked him if he
felt he was a laborer and he replied that he did.
Will testified with respect to what occurred at Keenan's
interview of Cupler. His testimony is as follows:
THE WITNESS: Mr. Cupler then was asked to come in
and he came in and Dr. Keenan asked him-well, he
first told him that he had heard this news about there
was going to be some sort of a union developed at the
lab and this was the first Dr. Keenan had heard about
it and, "What did you know about it?" What did Mr.
Cupler know about it.
Q. (By Mr. Berkowitz) Dr. Keenan asked Mr. Cup-
ler that?
A. Yes. I cautioned Dr. Keenan that this was the
type of questioning that tends to identify who is a
union member and who is into it, and at this point, I
told him this was pretty coercive and that he should
not be following those lines of questioning when he is
going to be talking to his employees. He asked me if
he could talk to his employees and I said, "They are
your employees so I cannot object to your talking to
them, but your conversation should not be coercive so
that you affect the election."
Jim did respond to that question, although I previ-
ously talked to him and told him he really should not
discuss his union sympathies or activities with his em-
ployer but Jim responded by saying there were prob-
lems at the lab. One problem he mentioned was the
insecurity of the position, that he didn't really know if
they were going to have their jobs, that it was an inse-
cure position they were in as a result of the arbitration
agreement and being transferred to work strictly for
Dr. Keenan. He felt insecure.
He felt insecure about his overtime. He was working
quite a bit of overtime at that time and he said that he
just could not be assured that he was going to have a
continuing wage because the doctor was able to con-
trol that. There was no security with respect to over-
time.
s * » s s
THE WITNESS: Dr. Keenan attempted to reassure Mr.
Cupler that he did not have intentions of just cutting
people off of their salaries, but Mr. Cupler objected
that that really was not the issue. The issue was that it
was possible for Dr. Keenan to do so, if he chose and,
of course, a union association or organization would
provide some sort of security from that type of thing.
During this meeting there was a more specific state-
ment made with regard to the union also because we
did talk about union in general and there was a specif-
ic statement made by Dr. Keenan that he would not
have a union and this was made to Mr. Cupler-that
he would not have a union in Western Clinical Lab,
that he just did not believe in unions and he would not
have them.
Keenan, in testifying as to his interview with Cupler,
stated that he may have asked him if there were any prob-
lems in the laboratory and that he did ask him if there were
any problems in communicating with him (Keenan). His
further testimony with respect to the interview is as fol-
lows:
Did you make the statement to Mr. Cupler that
some of these techs are ringleaders and that the rest
are sheep, and if you get the ringleaders you will solve
the problem?
A. I really don't believe I said that at all. I can't
recall ever saying that.
JUDGE GILBERT: Could you have said that?
THE WITNESS: I doubt that.
Q. (By Mr. Logar) Did you make this statement, or
words to this effect: That there are technologists who
need a union, and those technologists are inferior?
A. No, I don't believe I said that at all.
JUDGE GILBERT: Or words to that effect: That if a
technologist needs a union that he is probably an infe-
rior technologist?
THE WITNESS: No, I don't believe that I could make
that direct correlation in my mind.
Keenan further testified that Cupler asked him whether he
would rather deal with an association rather than a union
and he replied that he certainly would. It is further noted
that when questioned about his interview with Gillespie,
which succeeded that with Cupler, he was asked if he re-
called making a statement to the effect that he would not
have a union at Western Clinical Laboratories and his an-
swer was as follows:
A. I could have made that statement, I don't recall
making it.
Q. And, in what context would you have made it, if
you made that statement?
A. I have made this statement many times in the
past: If my treatment of the personnel is unfair to the
point that they require a union, I would certainly like
to get out of the management business. I have fre-
quently taken this position that I feel that I try to be
fair to the personnel, consequently, I would be recep-
732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tive to any reasonable discussion with professional
people, so that it would not be necessary for them to
require an intermediary, such as a union or even an
association.
Williamson testified that Keenan opened his interview
with Cupler by asking him if there were any problems aris-
ing in the laboratory; Keenan did not ask Cupler if he was
a sympathizer with or supporter of the Union; he did not
ask Cupler who the supporters of the Union were; Keenan
did not say that some of the medical technologists are ring-
leaders and the rest sheep and "if you get the ringleaders
you will solve problems"; and Keenan did not say that
technologists who needed a union were inferior. Wil-
liamson was asked whether or not Will made any sugges-
tions or interrupted during the conversation, and Wil-
liamson testified that he did and cautioned Keenan not to
pursue a line of questioning which he could not remember.
Also, Williamson testified that at one point Cupler asked
Keenan what he felt the difference was between an organi-
zation such as American Medical Association and the
union organization, and Keenan replied that there was a
considerable difference.
Hueners also testified with respect to the interview with
Cupler and his testimony was essentially similar to that of
Williamson. He also testified that Cupler told Keenan that
he (Keenan) had a communication problem with the tech-
nologists, and Hueners essentially made the same denials
as did Williamson, particularly with respect to the refer-
ence to ringleaders, that technologists who needed a union
are inferior, and that Keenan did not ask for any informa-
tion concerning the Union.
Will also was present at the interview with Gillespie.
Gillespie's testimony with respect to his interview is as fol-
lows:
A. Dr. Keenan asked me if I was aware of any
problems in the laboratory. I said, not really. I asked,
of a technical nature or a personal nature, and he said
any problems that I can think of. He said, "this is
something new to me and I was not aware of any
problems in the laboratory."
I said, I did not know of any specific problems.
And, he said, "let me ask you this: do you have any-
thing against me personally?"
I said, "no sir, I do not have anything against you,
personally." I said that he had always treated me all
right and I had no problems that way.
Then, we began to talk about-he asked me if I had
ever been a member of a union and Mr. Will said that
that was not a fair question, and Dr. Keenan said, "let
me rephrase it." He said, "have you ever, outside of
this establishment been a member of any union?"
Again, Mr. Will said I did not have to answer it, but I
said I had been a member of three unions during my
working life.
Dr. Keenan said, "do you know of any problems
within the laboratory that we couldn't solve" meaning,
to me, the technologists and he, Dr. Keenan "that we
couldn't solve without outside help of a union."
Again, I said that I wasn't really aware of problems.
I didn't know what he was getting at, at that time.
Then we talked for a few more minutes and the
subject came up about I worked seven days a week.
The subject came up, Dr. Keenan said, "I have a large
family and I know you have a large family, and I
know it is hard to make ends meet." He said, "I can
see with a large family such as yours that you need to
work and you can't be without a job."
And, I agreed. I said, yes sir, I do. I have to work
pretty steady.
I can't remember anything else right now.
Gillespie further testified that he made the statement to
Keenan that he felt that unions were coming to the labora-
tory, that it was inevitable, and that it was just a matter of
time until they came to laboratories and hospitals.
Will testified about the interview with Gillespie and his
testimony with respect thereto is as follows:
... Mr. Gillespie came in and sat down and the
doctor said something-quened something to the ef-
fect that there was a union starting and, "How do you
feel about unions?"
I, at that point, again cautioned the doctor that this
was the kind of identification of union membership or
identification of the sympathy of union members that
would be coercive in terms of affecting a vote, that
this was unfair for him to do that.
He said, "All right. Let me rephrase the question."
He continued the questioning along the lines of
unions but it was much more general and I don't re-
member a specific question after that.
Q. (By Mr. Berkowitz) Do you recall if he asked
Mr. Gillespie if he was a member of any unions?
A. Initially, his questions were directed to whether
or not he was a member-if he was involved with
the-
Q. And then after that?
A After that he asked about his general sympa-
thies That is what it was, because initially, the ques-
tion was directed specifically to him in terms of,
"What do you know about this union? Are you in-
volved in this? Do you know anything about this?"
Then, after that, it was a general question about
"Why do we need unions? How do you feel about
unions?"
Q. Did you object to those questions?
A. Yes. The general questions, yes, I objected a sec-
ond time. I said, "This still continues to be somewhat
coercive" but Gil responded, so I did not continue to
object.
Q. Do you recall what Mr. Gillespie responded?
A. Well, he responded in a general way, that unions
were necessary, he felt; maybe even a necessary evil,
but he felt they were necessary.
Will further testified Gillespie said that the only thing that
would ever solve the technologists' problem of insecurity
was the Union, "that they needed a union to make their
wishes known and have some authority where they could
actually have some influence." He further testified that
there was some discussion about the value of a patholo-
WESTERN CLINICAL LABORATORY, INC 733
gists' association . He also testified that at the beginning of
the conversation Keenan said to Gillespie "Gil, you have
seven children so you need to keep working, don't you"
and that Gillespie smiled and said "yes I do."
Keenan testified with respect to the interview with Gil-
lespie and denied that he asked Gillespie what he knew
about the Union or whether he was a member of the Union
or the Association. He did state that he asked the technolo-
gists whom he interviewed what concerns they had that
could not be worked out without representation by a
union . Keenan further testified that he asked Gillespie if he
felt intimidated and that he said he "wasn't," that he asked
him if he (Keenan) treated him fairly and Gillespie an-
swered, "yes," and that he asked Gillespie if he wanted to
continue the discussion and Gillespie said he did not and
thereupon he told him he was free to leave. Keenan further
testified that he did recall that in the discussion Gillespie
made some indication that he felt it was necessary to get
some type of representation and "I presume union repre-
sentation." In the course of his testimony, Keenan was
questioned about his interviews of the technologists. His
testimony with respect to those interviews is as follows:
Q. All right. Now, you were asking employees what
their problems were.
Did you have any intention to correct those prob-
lems once you found out what they were?
A. Yes, sir.
Q. Did you tell the employees during those meet-
ings that you would try to solve whatever problems
and grievances they had?
A. Yes.
Williamson testified that Keenan began the interview
with asking Gillespie if there were any problems in any of
those areas of the laboratory. Williamson further testified
that Keenan did not make any statement concerning the
Union or the petition that was filed; did not ask Gillespie
whether he knew anything about the Union; and did not
ask him if he had ever been a member of the Union. When
Williamson was questioned as to whether or not Gillespie
was asked if he knew of any problems that existed that
cannot be solved without a union, Williamson replied that
he did not remember that statement but that Keenan made
a statement which he "cannot remember the context of"
and Will cautioned him with regard to it. Williamson fur-
ther testified that he did not hear Keenan ask Gillespie
how he felt about the Union. Also, Williamson denied that
Gillespie made a statement that unions were necessary to
solve insecurity. Further, Williamson testified that he did
not hear any mention about the number of children Gilles-
pie had. Williamson did testify that he was absent from the
interview for a few minutes to answer a phone call.
Hueners also testified with respect to the interview. He
testified that Keenan started the interview by asking
whether he had any apprehensions (ostensibly about
WCL's takeover of the laboratory) which Keenan could
relieve him of and that Gillespie indicated that he had no
problems. He did remember that Will stopped Keenan at
one point but he could not remember what the line of cov-
ersation was when Will stopped him. Hueners denied that
Keenan asked Gillespie if he knew anything about the
Union or why he thought the technologists needed a union.
Hueners was asked whether Keenan asked Gillespie
whether he knew of any problems that could not be han-
dled without , a union and his response to the question was
"not that I can remember." However, when he was asked
whether Keenan could have made a statement about solv-
ing problems without the necessity of the Union, he said
that he was sure he would have remembered it if it had
been made. Further, Hueners denied that Keenan made
the statement that he would not have a union at the labora-
tory. He further testified that Gillespie said very little, that
he did state that he felt he had no problems, and that he
understood the arbitration agreement.
It is noted that there apparently was an interview with
Isabel Hernandez later in the day of June 27. According to
her credited testimony, she had observed that others had
been called into Keenan's office and asked Williamson for
a chance "on the soap box." The substance of her testimo-
ny, which is credited, is that she volunteered the informa-
tion to Keenan that she was a strong union sympathizer,
supported the Union 100 percent, and that she believed all
hospitals should be organized. There is no contention by
General Counsel that the Respondent committed an unfair
labor practice during her interview and it is inferred that
her above-outlined testimony was introduced to show that
Respondent was aware of her strong prounion sentiments
(as an element of General Counsel's case with respect to
Respondent's subsequent actions regarding her).
Will's testimony of his conversation with Keenan is cred-
ited and demonstrates Keenan's hostility toward having a
bargaining representative for the employees. However, as
above noted, his testimony, of itself, affords no basis for a
finding of an unfair labor practice.
As to the three above-mentioned interviews with Ran-
dolph, Cupler, and Gillespie, aside from the considerable
credibility issues raised, the Respondent also raises the le-
gal issue as to whether findings of unfair labor practices
with respect to them would be appropriate, inasmuch as, at
the time, the persons interviewed were not in the employ of
WCL and, therefore, were not employees within the mean-
ing of the Act. The General Counsel, in his brief, analo-
gizes them with applicants for employment and cites cases
which demonstrate a well-established principle that appli-
cants for employment are considered to be employees
within the meaning of the Act. The Respondent, in its
brief, attempts to analogize cases involving successor em-
ployers, which analogy is inapplicable to the issue of
whether the technologists who were interviewed could ap-
propriately be considered employees within the meaning of
the Act.
Although at the time the technologists were on the pay-
roll of the hospital, it was well understood by WCL and the
technologists that they would be retained as employees by
Respondent when it took over the laboratory. Consequent-
ly, their relationship to the Respondent was more firmly
established than mere applicants for employment. In ef-
fect, they had been notified that they were hired by Re-
spondent and that their employment would commence on
July 1, a few days after the interviews.
In the circumstances, it appears appropriate to consider
734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
them as employees within the meaning of the Act, and that
any conduct which interferes with, restrains, or coerces
them as to their protected activities in their future employ-
ment with Respondent should be found to be violative of
Section 8(a)(1) of the Act. Moreover, as pointed out by the
General Counsel, Section 2(3) of the Act broadly defines
the term "employee" as including "any employee, and shall
not be limited to the employees of a particular employer,
unless the Act explicitly states otherwise. . . ." Section
8(a)(1) of the Act does not contain such an explicit limita-
tion.
As to the interview with Randolph, I credit his testimony
that Williamson stated that "they needed a list" of the
union members. Although this testimony was denied by
Williamson and Hueners and vigorously denied by Keen-
an, nevertheless Randolph impressed me as the more credi-
ble witness with respect to this aspect of his testimony.
Based upon said credited testimony, it is found that Re-
spondent unlawfully interrogated Randolph in violation of
Section 8(a)(1) of the Act by seeking information as to who
were "union" members.
As to the interview with Cupler, I credit Will's testimony
that Keenan asked Cupler what he knew about the Union
and, despite Will's objection, Cupler responded by stating
his reasons why he felt union representation was needed.
Although Cupler did not testify that this question was
asked of him, none of Respondent's witnesses categorically
denied Will's testimony. Furthermore, Will impressed me
as a credible witness as to what occurred at the interviews
during which he was present. Based upon said credited tes-
timony, it is found that Respondent unlawfully interrogat-
ed Cupler in violation of Section 8(a)(1) of the Act. Fur-
thermore, Will testified, and likewise I credit his testimony,
that Keenan told Cupler that "he would not have a union
in Western Clinical Lab." It is noted that in Keenan's testi-
mony quoted above he admitted that he could have made
such a statement, although in another portion of his testi-
mony he denied ever making such a statement to a technol-
ogist. This statement was violative of Section 8(a)(1) in that
it constituted a threat that any attempt upon the part of
employees to have a bargaining representative would be
futile, which patently would interfere with, restrain, and
coerce employees in the exercise of their Section 7 rights.
As to Cupler's testimony of Keenan's statement to him
about "ringleaders," it is noted that Will testified to a simi-
lar statement made to him by Keenan before Cupler en-
tered, that Keenan stated, "If he could identify the leaders,
then he might be able to identify the problems and there
might not have to be any union here at all." However, it is
further noted that Will's testimony with respect to the in-
terview of Cupler contained no reference to such a state-
ment being made by Keenan. It appears likely that if
Keenan had this would have been remembered by Will,
who, as a lawyer, is trained to recognize significant state-
ments made by any party. Respondent's witnesses all de-
nied that Keenan made such a statement. In the circum-
stances, therefore, the denials of that aspect of Cupler's
testimony are credited.
As to Gillespie's interview, he testified that Keenan
asked him if he had ever been a member of a union and,
despite Will's objection, he replied that he had been a
member of three unions. Will testified that Keenan asked
Gillespie about membership in the Union and what did he
know about it; he cautioned Keenan about asking such
questions; Keenan then asked him his feelings about
unions in general; he objected again, but Gillespie re-
sponded that unions were a "necessary evil"; and the tech-
nologists needed a union to solve their problem of insecuri-
ty. Although the above-outlined testimony was denied by
Respondent's witnesses, both Williamson and Hueners tes-
tified that Will voiced an objection to something that was
said by Keenan but neither could remember what it was.
As stated above, Will was an impressive witness and his
testimony is credited. Based upon said credited testimony,
it is found that Respondent unlawfully interrogated Gilles-
pie in violation of Section 8(a)(1) of the Act.
Gillespie further credibly testified that Keenan asked
him if there was any problem "that we couldn't solve with-
out outside help of a union." While Will did not testify that
such a question was asked, Keenan, according to his
above-quoted testimony, admitted that in his interviews of
the technologists he asked them what their problems were
and told them that he "would try to solve whatever prob-
lems and grievances they had." Consequently, based upon
the credited testimony of Gillespie and the admission of
Keenan, it is found that Respondent did solicit grievances
and implied that they would take care of them and it is
inferred that he did so in order to undermine their desire to
have a bargaining representative. Such conduct is violative
of Section 8(a)(1) of the Act. Swift Produce, Inc., 203
NLRB 360 (1973); ITT Telecommunications, A Division of
International Telephone and Telegraph Corporation, 183
NLRB 1129 (1970).
Both Will and Gillespie testified that Keenan stated to
Gillespie that he (Gillespie) had a large family and needed
a job. Although Gillespie testified that the statement was
made at the end of the interview and Will that it was made
at the beginning, and although there was a denial that
Keenan made a reference to Gillespie's family, I credit
Will's and Gillespie's testimony and find that, during the
course of the interview, Keenan made a reference to
Gillespie's family and his need of a job. It is found that, in
the context in which such a statement was made (the orga-
nizational attempt, the interviewing of technologists indi-
vidually, and unlawful interrogation), such a reference was
a thinly veiled threat of reprisal for supporting the technol-
ogists' organizational efforts in violation of Section 8(a)(1)
of the Act, in that it was not a very subtle indication that
the retention of his job was at the will of management.
The July 1 General Meeting
It appears that on July I Keenan held a general meeting
with the technologists which he described as a "welcome
aboard" type of meeting (ostensibly because this was the
first day that WCL took over the laboratory). Monte
Young testified to certain statements made by Keenan as
follows:
Well, Dr. Keenan started out the conversation by
telling us that he was sorry about what had happened
and that he didn't think we needed a union; that all of
WESTERN CLINICAL LABORATORY, INC 735
our cares would be handled by Western Clinical and
he felt that he could handle everything that we want-
ed.
He said that, because of the techs wanting a union,
he felt they were going to have to do everything the
union way and pathologists were going to take a great-
er interest in what was going on out in the laboratory.
They were going to come out in the laboratory and
check because he knew there were deficiencies in all
departments and that when deficiencies were found,
they would have to be cleared up and we would be
given a certain length of time to clear up these defi-
ciencies.
It is noted that, well after Young's testimony, General
Counsel stated during the course of Keenan's direct exami-
nation by Respondent's counsel with respect to the meet-
ing that there is no allegation of an unfair labor practice
with respect to said meeting. Although General Counsel
refers to Young's above testimony in his brief, in the clos-
ing argument contained therein he makes no contention
that Respondent committed an unfair labor practice at
said meeting. Therefore, Young's above-quoted testimony
will be considered only for the purpose of determining
whether it is probative of union animus. Medicine Bow Coal
Company, 217 NLRB 931, fn. 2 (1975).
Keenan, in testifying about the July 1 meeting, stated
that he was reasonably certain that he announced at the
meeting that he could not discuss union matters with them
unless they themselves wanted to bring it to his attention.
However, he did not categorically deny Young's testimony
about his references to the lack of need of a union to solve
their grievances. Consequently, Young's testimony with re-
gard thereto is credited. Keenan further testified that he
talked in general terms of general policies and procedures
(of WCL) and indicated that he did not expect any radical
or drastic changes in management or in the treatment of
the technologists. I am not persuaded by Young' s testimo-
ny that Keenan linked with his statement about the "union
way," a further statement which Keenan might well have
made that the supervisors were going to check on deficien-
cies. Consequently, I am of the opinion that Keenan's am-
biguous statement about the "union way" does not add
anything to my previous finding that Keenan did harbor
union animus. However, Young's credited testimony con-
firms my finding that Keenan admitted that he, in effect,
solicited grievances and promised redress thereof, which
action I also have found was calculated to undermine the
Union.
Cupler-Keenan Conversation on July 2
(Paragraph VI(c) of Original Complaint)
Cupler testified that on July 2 he asked to meet with
Keenan and following is Cupler's testimony with regard to
their conversation:
A. When I went in I told Dr. Keenan that I had
been involved in the union activities and that I would
like to find out from him what my job status would be
in the future with Western Clinical Laboratory. I told
him that I had recommended the attorney for the as-
sociation. And, I told him, at the present time, I could
not afford to change my line of work and my daughter
was getting ready to go into college in the fall, and I
wanted to know where I stood there.
He told me that my future employment at Roseville
Community Hospital laboratory would be entirely de-
pendent upon my job, the performance of my job. He
said that I had some discrepancies, and these would be
brought to my attention at some date. He said that we
all had discrepancies and we would be given a time to
correct these discrepancies and if we could not correct
them by that time we would be terminated.
He said that, "you will have your day in my court,"
and I inquired as to the other technologists and he
said that would be essentially true for all of them.
He told me that he absolutely could not tolerate a
union and that if necessary he would replace anyone
and everyone that was involved in the union.
Q. At that point, was there any mention made of
your daughter, who was going to college?
A. Yes. I believe it was towards the end of the
meeting and when I was about to leave , he made the
comment to me, "Jim , for your daughter 's sake, for
the college, I hope that you could walk the line, be-
cause I will be looking for an excuse to let you go."
Dr. Keenan testified that Cupler did indicate he was in-
volved with the Union, wanted to know his status, and also
identified himself as the person who was responsible for
calling in Will. Keenan further testified that he told Cupler
that his union support or lack of support had no bearing on
his job tenure; he did have some job deficiencies which
could be remedied; he would have a job evaluation and
would have an opportunity of challenging any aspect of it;
and his job tenure depended upon his job performance.
Keenan denied that he said he would not tolerate a union
and if necessary would replace everybody involved. Keen-
an further testified that there was a reference to Cupler's
daughter and that Cupler stated that he was concerned
about his job security because of her. He denied that he
said that for her sake he hoped that Cupler would "walk
the line," that he would be looking for an excuse to let him
go.
Cupler's testimony that Keenan reassured him that his
future employment was "entirely dependent" upon his job
performance followed by his testimony that immediately
thereafter Keenan engaged in the threats relating to union
adherence indicates a very unlikely reversal of Keenan's
conduct of the interview . Of the two witnesses , Keenan was
the more impressive as to their conversation on July 2 and
therefore his version is credited. Consequently, it is found
that the General Counsel has failed to prove by a prepon-
derance of the evidence the allegation (a portion of par.
VI(b) of the first complaint) that on July 2, 1974, Respon-
dent threatened employees with reprisals because of their
union activity.
Conversation between Randolph and Oda
Randolph testified that in the first or second week of
July he had a conversation with Oda, a friend of long
736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
standing, in which Oda related to him what had occurred
at a meeting of the pathologists and supervisory personnel
in which they discussed what to do about the Union. There
is no allegation of an unfair labor practice with respect to
this conversation and the matter was not fully litigated,
since neither Oda nor any of the participants at said meet-
ing were questioned about the matter. Therefore, a finding
of an unfair labor practice with regard thereto would be
inappropriate.
According to Randolph's testimony, Oda related state-
ments made in the meeting with respect to actions that
might be taken against the technologists in view of their
seeking union representation, including: a suggestion by
Keenan that they all be fired (which someone objected to);
discussions as to which of them could be fired because they
could easily be replaced (including Gillespie, Monte
Young, Hernandez, and Cupler) or should not be fired be-
cause they could not (only Randolph's name was men-
tioned in this category); and a suggestion that they "make
a book" on those whom they would terminate. Randolph's
testimony, which is uncontradicted and is therefore cred-
ited, has been considered in arriving at the findings and
conclusions in this Decision. While it might be argued
(which it was not) that said testimony is hearsay, I am of
the opinion that it may be regarded as being of probative
value. It consists of statements made to the witness by an
admitted supervisor and agent of Respondent and, in any
event, it was received without objection and no contradic-
tory evidence was introduced. N.L R.B. v. International
Union of Operating Engineers, Local Union No. 12, 413 F.2d
705 (C.A. 9, 1969). It is noted that said testimony both
supports the General Counsel's case and Respondent's
case. On the one hand, it tends to support General
Counsel's contention that actions taken against Gillespie,
Monte Young, Hernandez, and Cupler were discriminato-
rily motivated and, on the other hand, it tends to support
to some extent Respondent's contention that they were not
highly regarded as technologists, particularly Young.
Randolph's testimony of Oda's description of the meeting
relating to the latter contention is as follows:
A. Dr. Gregonis said that Tom Gillespie could be
fired, that he was a general lab tech and was easily
replaced. He said Monte Young, because Monte
Young chronically complained and was not that pro-
ductive, so he could be eliminated. He was a general
lab tech and they are easily replaced. Isabel Hernan-
dez: she is a general lab tech and is easily replaced. He
mentioned Jim Cupler.
At that point, Tom [Oda] intervened and said,
"Why Jim Cupler?" Tom said that he thought Jim was
a good medical technologist, that he did a good job in
hematology.
Q. (By Mr. Berkowitz) Any other names?
A. Dr. Gregonis said, in answer to Tom's question,
"Have you seen his CAP surveys lately?"
July 19 Conversation Between Keenan and Monte Young
Keenan and Young held a conversation on July 19
which lasted for approximately 6 hours. There is no allega - cure Bow Coal Company, supra
tion in the complaint relating to this conversation and
General Counsel made no reference to it in his brief. How-
ever, testimony concerning it is set forth in considerable
detail in Respondent's brief, apparently for the purpose of
showing that Young's testimony should not be credited. In
view of the content of Young's testimony which contains
statements which would constitute unfair labor practices (if
alleged) and which would demonstrate Keenan's union an-
imus , it does not appear appropriate to disregard the testi-
mony about said conversation, even though Young' s testi-
mony, even if credited, cannot be the basis for findings of
unfair labor practices.'
Following are excerpts from Young's testimony of the
more crucial statements he claimed Keenan made to him:
A. Well, he then-I told him all of the reasons this
was going on and that is why we were organizing and
he said that he could never live with a union and that
he would consider that any medical technologist that
would join a union would be incompetent and medio-
cre and that any tech of his that joined the union, he
would have to consider to be incompetent.
He then told me that he thought the techs were out
to destroy him and I tried to explain this by telling
him that was not true at'all, because if he didn't sur-
vive, then we didn't survive. That was absolutely not
even realistic. There was nobody out to get him.
Q. Okay. And what was said next?
A. He said that he had stopped the union because
of-it would ruin his profit sharing. Of course, we dis-
cussed that and I didn't know that unions ended profit
sharing and he said it wasn't hurting him because he
didn't have to pay the bill anyway, that it all came out
of profit sharing.
A. He then said there was no way we could win and
he wished that we could stop this before it went to an
election. That he hoped there would be some way to
stop the election and that it did not matter if we went
to election anyway because if we did and won, that he
would just precipitate an action that would force us
out and that he could bring in techs from outside to
run the lab long enough so that we could never get a
contract signed in a year.
Q. In a year? Was there anything said about a one-
year period?
A. There was a year, he said he could beat us. That
if [he] had to negotiate within a year that he could just
hold out until that year was up.
Young further testified that Keenan asked him if he felt
he "needed a Union personally," and that he said that he
did not, that he thought he had been treated fairly, but that
he would vote for a union. Young also testified that Keen-
an stated that he "knew who all was for the Union, there
was already a list."
While not all of the above testimony was categorically
denied by Keenan, in effect, his testimony constituted a
denial of said testimony.
' In view of the absence of any allegation relating to the incident Medi-
WESTERN CLINICAL LABORATORY, INC. 737
Of the two witnesses , Young was the more persuasive as
to their above-related conversation and I credit his testimo-
ny. Said credited testimony demonstrates Keenan's consid-
erable hostility toward having a union represent the tech-
nologists and a willingness to engage in unfair labor
practices in order to prevent it.
Solicitation to Bargain Without the Union
(Paragraph VI(d) of the First Complaint)
Randolph testified that he had a meeting with Wil-
liamson and Oda at Williamson's home on July 28.
Randolph's testimony as to their conversation is as fol-
lows:
A. Yes. In that conversation, there was a discussion
of what we could do to reconcile the problems with
the union, the turmoil in the lab that was being
caused. Bud [Williamson] and Tom [Oda] both agreed
that Dr. Keenan would not negotiate a contract with
the Union, but that he would be willing to negotiate a
contract with our original association.
JUDGE GILBERT: Who said this?
THE WITNESS: Bud Williamson and Tom Oda both
agreed.
Q. (By Mr. Berkowitz) Okay. Did you reply to that?
A. Yes. I said that I would take this suggestion
back to the members of the Union and present it be-
cause we did want to work with the lab; we wanted to
get together and be able to work. I would present it
and we would see what their feelings were and I would
get back with them.
Williamson also testified to the meeting at his home. Ac-
cording to Williamson, the meeting was held at Randolph's
request (which was not denied by Randolph). Williamson
further testified that Randolph indicated "that there was
doubt as to how much we [ostensibly the technologists]
could rely upon the arbitration award" and that he (Ran-
dolph) "felt it [the elements affecting the technologists]
needed to be specified in more detail." Williamson also
testified that he told Randolph that the provisions ap-
peared adequate to him and that he "couldn't understand"
why there was any problem, and that Randolph indicated
that "he would like to see everything . . . independently
listed," that he "didn't like the concept of a blanket cover-
age." Williamson denied that Randolph was asked to pre-
pare such a list, denied that Randolph was told that Keen-
an would negotiate a contract with an association, but not
with the Union, and denied that it was suggested to Ran-
dolph that he prepare such an agreement.
It appears that such a contract was prepared and was
presented to an official of WCL at a general meeting of the
technologists on or about July 31. It appears that he gave it
short shift and stated that any contract would have to
await the outcome of the pending election.
The General Counsel contends that, through the con-
duct of Williamson and Oda, Respondent violated Section
8(a)(1) of the Act by promising to recognize and enter into
a contract with the Association if it abandoned its affilia-
tion with Local 22. 1 find that he has failed to sustain the
allegation of such a violation of the Act by a preponder-
ance of the evidence, since I do not credit Randolph's
above-quoted testimony as to what was stated to him at the
meeting at Williamson's house. Williamson was the more
impressive witness as to this incident, and the lack of inter-
est on the part of Respondent in proposed contract (with
only the Association) confirms my opinion that
Williamson's denials of Randolph's testimony should be
credited. Furthermore, since the meeting was called at
Randolph's request, it does not appear likely that Wil-
liamson and Oda could have been prepared to suggest that
Respondent would be willing to accept the Association as
the bargaining representative if it disaffiliated itself from
Local 22. Since Randolph was generally a credible witness,
it is quite possible that he made the suggestion and as-
sumed that Williamson and Oda agreed to it.
"Written Reprimands" to Randolph and Cupler
(Paragraph VII of the First Complaint)
On August 26 and 28, Randolph and Cupler respective-
ly, received an "Inter-Office Memorandum" from Keenan
on the subject of "Tardiness to Work." Each memorandum
stated that it was to "document" the subject of respective
previous discussions with each of them with respect to their
tardiness on August 21, 22, and 23. Each memorandum
further stated that "it is understood that there will be no
future lateness unless under documented unusual circum-
stances." Further, each memorandum requested that it be
signed to indicate understanding of the memorandum and
acknowledgement of the stated deficiencies. The memoran-
dum to Cupler also called his attention to OSHA regula-
tions prohibiting smoking in various areas of the laborato-
ry (of which he had previously been advised orally).
Keenan credibly testified that he had observed each of
them reporting after 7 a.m. (the starting time for their shift)
at times ranging from 12 minutes to 45 mintues on the 3
days indicated.
The General Counsel argues that prior to the organiza-
tional activities "starting times were flexible" and that
smoking had been permitted in all areas of the laboratory.
I am not satisfied that this argument is of much weight,
since the organizational activities commenced prior to the
time that WCL took over the operation of the laboratory.
Also, the General Counsel argues that even after the warn-
ings were issued to Randolph and Cupler, other employees
continued to report to work late and smoked in the labora-
tory with impunity. Again, I am not satisfied that this argu-
ment is of much weight , since there is no evidence that
such subsequent breaches were observed by Keenan except
for one instance which was reported to him and was evi-
denced by a warning memorandum about smoking issued
to Omar Ahmad on October 9.
General Counsel further relies on the testimony of state-
ments made by Keenan with regard to the memoranda.
Both Monte Young and Cupler testified that Young ac-
companied Cupler to Keenan's office to discuss the warn-
ing and in the ensuing conversation , when Keenan was
asked why it would not be sufficient that Cupler be given
an oral reprimand, Keenan replied "You guys wanted the
738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union, so we have to do this the union way." Randolph
testified that on August 23, when Keenan was discussing
his tardiness with him, Keenan said, "We had asked him to
play it by the book and he was playing it by the book," to
which he (Randolph) replied that it was all right as long as
it was applied equally to everyone. Randolph further testi-
fied that on August 26 Keenan made the following state-
ment to him about the smoking regulations:
Dr. Keenan said that these regulations apply to all
of his labs, but that he could be more relaxed in the
enforcement of these in his other labs because he was
not playing it by the book in those labs.
The General Counsel does not argue, nor will the record
support a finding, that Randolph and Cupler did not re-
port late on the dates in question or did not violate the
smoking regulations. Keenan credibly testified that he in-
formed both technologists that the memoranda should not
cause them any apprehension, that they were solely to doc-
ument the facts and that they (the technologists) under-
stood that unwarranted tardiness and smoking in prohib-
ited areas were not tolerated. Further, Keenan credibly
testified as to the importance of punctual reporting for
work because of the press of work at the beginning of the
shift and the need to observe the regulations against smok-
ing in areas of the laboratory. Additionally, Keenan denied
that he made the statement about doing it "the union
way." He also testified that he may have made the state-
ment about "playing by the book," that he intended by the
remark that he was "showing no favoritism." As to the
reference about "being more relaxed in other labs," Keen-
an testified that "it is possible, but unlikely" that he made
such a statement , that at an earlier meeting Randolph stat-
ed he wanted rules applied equally and he may have said,
"You asked me to play it by the book and I am playing it
by the book," meaning that he was showing no favoritism.
Keenan was an impressive witness with respect to the
reason for the issuance of the memoranda to Randolph
and Cupler and the incidents relating thereto and his testi-
mony is credited. As to the statement about "playing it by
the book," I am not satisified that, in all the circumstances,
it can be construed as a basis for finding that the memo-
randa were discriminatorily motivated. I am of the opinion
that the General Counsel has failed to prove by a prepon-
derance of the evidence the allegation in paragraph VII of
the first complaint. Also, as to the fact that written memo-
randa were issued to them, it appears that Keenan habitu-
ally wrote memoranda with respect to interviews he held.
Termination of Cupler's Overtime
(Paragraph VIII of the First Complaint)
It appears that for some time prior to Respondent's ter-
minating Cupler's working on weekends (overtime) in ad-
dition to his regular weekday schedule (which he had been
doing for a number of years), Cupler had been suffering
from a heart problem for which he had been receiving
treatment. It further appears that on Friday, August 23, he
experienced pain in his chest and requested of Hueners
that he be permitted to leave. Keenan credibly testified as
follows with respect to a phone call from Hueners on that
day concerning the incident:
And, he advised me that Mr . Cupler was having a lot
of discomfort , chest pain , and he said "He really looks
bad, Doc , and he would like to take time off." And, I
understood him to say , to get an EKG.
I told him , by all means and be sure to not come
back to work until he is ready.
I came down to the laboratory a short time af-
terwards , an hour or an hour and a half later , and said
tell me about it. And, Gary said "Boy, he didn't look
good at all. He was taking medication and he really
looked sick . I was worried."
Cupler credibly testified that on August 26 Keenan sum-
moned him to his office and his credited testimony with
regard thereto is as follows:
... Dr. Keenan came up to me at the microscope
in the hematology area and said he would like to see
me in his office . He said to me, at that time, "I under-
stand you had to go home Friday with chest pains."
And, I told him yes I did.
He said , "Are you having any chest pains now?"
And, I replied , I wasn't.
He said , "I wouldn ' t want you to have any chest
pains, but I would like to see you in my office."
It appears that they then discussed his tardiness and his
smoking in the laboratory and Keenan told him that he
would receive a memorandum with regard thereto (the
memorandum discussed hereinabove ) which he received a
few days later.
On September 3, Cupler and Monte Young , who had
been asked by Cupler to accompany him, went into
Keenan 's office and discussed with him the memorandum.
Following is a resume of Young's credited testimony. It
appears that Cupler refused to acknowledge his tardiness
and that Keenan asked Cupler if he was calling him a
"liar" and said that it was a dismissible offense to dispute the
integrity of a pathologist, to which Cupler replied that he
was not disputing his integrity but that he did not want to
admit that he had been late (as stated in the memoran-
dum). Whereupon Keenan asked him if he wanted him to
produce witnesses to substantiate the accusation to which
Cupler replied that , if he had witnesses, "bring them in."
Keenan called in Hueners and Oda, who both confirmed
that Cupler had reported late.
Young's testimony continued as follows:
Dr. Keenan then turned to Jim and said , "What do
you think about that?"
Jim says, "Well , I guess if they say I am late, then, I
was late."
And so, Dr. Keenan said, "Do you mean to tell me
that you would take the word of technologists over
that of a pathologist? I really find this difficult to un-
derstand ," he says, "that you would question my in-
tegrity."
Jim said he was not questioning Dr. Keenan 's integ-
rity. He just went again through the whole thing, how
he did not want to sign a blank statement made by Dr.
Keenan.
WESTERN CLINICAL LABORATORY, INC. 739
Dr. Keenan said that he thought maybe the best
course of action here would be to just relieve Jim of
duty, call his attorneys and see if there was in fact a
good reason here for dismissal.
We told Dr. Keenan at this point that we didn't
think this was necessary, that just a verbal reprimand;
that Jim admitted that he had been wrong and a writ-
ten reprimand would have been enough.
Q. Do you recall what Dr. Keenan replied to that?
A. He replied that any technologist who would fal-
sify his time record would falsify his tests and that,
therefore, maybe Jim was not competent as a technol-
ogist and, you know, this should be carried further.
Q. Okay.
A. So, again, we just tried to say no, we did not
think that was necessary.
Q. And then what happened?
A. Let me think.
I think with that, Jim was asked if he wanted to
leave-oh, Dr. Keenan told me that he would not ac-
cept that one because of what was written on the bot-
tom; that Dr. Keenan would make out a new memo-
randum and that Jim could sign it . He was supposed
to sign it within so many days.
With that, Jim left.
Q. Now, before Jim left-
A. Oh, I am sorry. Yes. Dr. Keenan turned to Jim
and he said, "Jim, do you find this kind of stress pain-
ful?" He says, "Do you find this type of interrogation
and this kind of interview stressful, painful?"
Jim said, "Yeah."
He said, "Does this bother your heart, Jim? Does
this bother you at all? Do you have heart pain from
this type of interview?"
Jim said, "I have chest pains without this kind of
thing."
Dr. Keenan said he would not want to do anything
that would cause Jim pain.
Q. All right. And how was-what was Dr. Keenan's
tone of voice in talking to Jim in that conversation you
have just related?
A. He just turned right on to me, "Do you like
this?", you know. It was very aggressive.
Q. What about when he was discussing or asking
Jim whether this interview caused him any pain?
A. That is when he said, "Jim, does this cause you
any pain? Do you feel any stress from this type of
interview?"
He just comes right after him. If you want me to say
it, I think it was malicious.
Q. All right. Was that Dr. Keenan's tone through
that portion of the conversation you just related?
Yes, it was.
While the above-quoted testimony is credited, I am not
convinced that I can place much reliance on Young's testi-
mony as to the "malicious" manner in which Keenan ques-
tioned Cupler about his heart condition. Such subjective
testimony might well have been a misinterpretation of the
intensity of Keenan's questioning which could have been
merely a manifestation of Keenan's concern. Keenan de-
rued that he spoke to Cupler in a menacing tone of voice
and it is noted that he questioned Cupler about his heart
condition several days prior thereto.
Young further credibly testified that, after Cupler left
Keenan's office, Keenan instructed Hueners to tell Wil-
liamson that he was to take Cupler off weekend work. It is
noted that Keenan testified that he "took personal offense"
that Cupler was "essentially saying that I was not telling the
truth "
There is considerable testimony by Keenan which was
partially corroborated by Dr. Richard Chun, who had been
treating Cupler for his heart condition, that Keenan
checked with Chun and other doctors and personnel as to
the medical advisability of keeping Cupler on weekend
work before he decided to take such action. On the other
hand, there is in evidence a note dated September 7 that
was signed by Chun and which had been written by
Cupler's wife, a nurse at the hospital, which stated that
Cupler "has shown improvement clinically . . . may work
weekends 5 hours per day." Chun testified that he meant
no more than 5 hours per day and a maximum of 40 hours
per week, that he did not know how many hours Cupler
worked dunng the week. Chun's testimony was not very
persuasive and neither was Keenan's testimony about
checking on the medical advisability of Cupler's working
overtime before deciding to terminate Cupler' s overtime.
In any event, I am not of the opinion that Keenan's and
Chun's testimony is of any materiality. Rather , I am con-
vinced, based upon Young's credited testimony, that, im-
mediately after the interview with Cupler, Keenan made up
his mind at that point to terminate Cupler's overtime and
that it was motivated by Keenan's deep resentment that
Cupler questioned his "integrity." Consequently, it cannot
be found that it was motivated by Cupler's union adher-
ence or by some protected concerted activity. While it
might be said that Cupler's disputing disciplinary action
would constitute protected activity, it involved only Cup-
ler, and therefore would not constitute concerted protect-
ed activity. Therefore, I am of the opinion that General
Counsel has failed to prove by a preponderance of the evi-
dence the allegation in paragraph VIII of the first com-
plaint.
Gillespie's Evaluation and Termination
(Paragraphs IX(b) and X of the First Complaint)
It is alleged that Gillespie was given a poor evaluation
on September 26 and was discriminatorily discharged on
October 3 and that both actions were motivated by his
union adherence.
It is apparent from the findings as to Keenan's interview
with Gillespie on June 27 that he knew or strongly suspect-
ed Gillespie was a union adherent. It is also apparent from
above findings that Keenan was very hostile to union rep-
resentation. These two findings have been considered in
resolving the issues raised by the above allegations and the
evidentiary problems related thereto.
As to Gillespie's evaluation, as well as the other evalua-
tions (of Monte Young, Cupler, and Hernandez), there are
certain general observations which should be made. It ap-
740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pears that evaluations of technologists are an established
procedure of WCL and, therefore, no inference adverse to
Respondent can be drawn from the fact, of itself, that said
evaluations were made of the above-named technologists.
It does not appear that they were singled out for evalua-
tions, but rather it appears that evaluations were made for
all the technologists
Williamson, Hueners, and Oda were instructed to pre-
pare them on WCL's regular forms and were further in-
structed to make independent judgments and then prepare
a composite evaluation for each technologist based on their
combined judgments. It does not appear that Keenan par-
ticipated in their preparation. Thus, the evaluations repre-
sented the combined subjective estimates of the three super-
visors as to each technologist with respect to 22 categories.
Since they are subjective estimates, it is obvious that they
are both difficult to substantiate and difficult to attack. At
most, the testimony to support them can only consist of
some selected incidents 8 which were observed and some
general observations of habitual practices or behavior in
their work performance. Considerable testimony of this na-
ture was introduced into the record by Respondent's wit-
nesses and considerable contradictory or explanatory testi-
mony was introduced into the record by General Counsel's
witnesses in rebuttal. An attempt to detail all of this testi-
mony would not only require a tremendous amplification
of this Decision, but it would serve little purpose, since it
would be of little aid in resolving whether the subjective
evaluations were or were not honest impressions of the su-
pervisors. I am not convinced that the testimony was unbi-
ased, particularly that of the supervisors who, I infer, must
have been influenced to some extent by Keenan's obvious
union animus.
Williamson made evaluations of technologists when they
were employees of the hospital and General Counsel points
out differences between these evaluations of the four tech-
nologists which were excellent and their poor evaluations
when employed by WCL. However, Williamson credibly
testified that he uniformly selected the best of the various
options opposite each category on the hospital's form, that
he did not know what use was made of them, and that
Keenan was never consulted with respect to the hospital
evaluations or even saw them. It appears, therefore, that
Williamson did not regard the selection of the options op-
posite each category of the hospital form as of much im-
portance and that said forms are of little or no probative
value with regard to that portion of said forms in contrast-
ing them with the selection of the options on WCL's forms.
On the other hand, Williamson added comments to some
of the hospital forms which to my mind cannot be disre-
garded in appraising the WCL evaluations, particularly
when such added comments were of such a complimentary
nature that they virtually contradict the overall WCL eval-
uation of the same individual. It does not seem likely that
the performance of such individuals could have so drasti-
cally changed as to warrant practically a reversal of the
subjective impression of their performance. Therefore, in
considering the WCL evaluations of the four individuals at
8 It appears from the record that errors are not infrequent and it is infer-
red that incidents can be selected for any technologist to cast his perfor-
mance in a poor light
issue herein, I will also consider such added comments by
Williamson on the hospital forms.
Gillespie began work as a laboratory technologist at
Roseville Community Hospital in June 1973. On or about
May 28, 1974, Gillespie received an evaluation from Wil-
liamson. Williamson gave the evaluation to Gillespie sever-
al weeks early so that Gillespie could receive a pay raise
prior to the takeover of the laboratory by Respondent on
July 1. The evaluation rated Gillespie in the best possible
categories available on the evaluation form. There were no
criticisms of Gillespie's work in the evaluation. In the sec-
tion of the evaluation entitled "Major Strongpoints," Wil-
liamson wrote the following comments: "Responsible work
performance" and "Demonstrates good knowledge in all
areas of the clinical lab " There is also the following writ-
ten comment: "Tom Gillespie has proven to be a valuable
asset to the Clinical Laboratory. Tom is willing to work
odd hours and pull call when necessary to provide continu-
ous coverage in the lab."
Gillespie testified that in late July he applied for part-
time work on the graveyard shift at Sutter Memorial Hos-
pital in Sacramento. The job was to run from 11 p.m. to 7
a.m on Wednesday, Friday, and Saturday. Gillespie's shift
at WCL was from 3 p.m. to 11 30p.m. on Monday through
Friday. Gillespie further testified that he asked Williamson
if arrangements could be made for him to come in early on
Wednesdays and Fridays, so that he could leave early to
report to his job at Sutter, and that Williamson agreed to
the arrangement, so long as Gillespie made sure that his
shift at WCL was covered. Williamson denied that he gave
him such permission except for a half hour on an occasion-
al basis, and that he did not know Gillespie was working at
Sutter, although he suspected it because Hueners told him
he had received a call inquiring about Gillespie from Sut-
ter. Gillespie further testified that in that conversation he
told Williamson that in view of the union campaign, he
wanted to protect himself with a part-time job; that Wil-
liamson replied that he wished that the whole thing would
blow over; and that Williamson further stated, "I have the
feeling that some people are going to lose their homes, lose
their cars and everything over this union business." Gilles-
pie was not an impressive witness and his above testimony
as to the arrangements he made with Williamson and the
statements made by Williamson is not credited. (It is noted
that there is no allegation in the complaint with respect to
said statements.)
Although General Counsel contends that commencing
about mid-August Gillespie reported to work at Western
Clinical Laboratory "1 hour early" on Wednesdays and
Fridays and left work 1 hour earlier so that he could go to
work at Sutter, his time records (which are in evidence)
show that he wrote in the following checkin and checkout
times at WCL:
For the pay period 8/11 to 8/24:
First week-"vacation without pay"
Second week-Wednesday 2:30 to 11:00 Friday
3:00 to 11:30
For the pay period 8/25 to 9/7:
First week-Wednesday 3:00 to 11:30 Friday-va-
cation
WESTERN CLINICAL LABORATORY, INC. 741
Second week-Wednesday 2:30 to 11:00 Friday
3:00 to 11:30
For the pay period 9/8 to 9/21:
First week-Wednesday 2:30 to 11:00 Friday 2:30
to 11:00
Second week-Wednesday 2:30 to 11:00 Friday
2:30 to 11:00
It is noted that the above time records disclose that he
never checked out earlier than 11 p.m. and on two occa-
sions not until 11:30 p.m.
On the other hand, the time records for Sutter disclose
that he consistently checked in at 11 p.m. It appears from
credited testimony that it takes over a half hour to drive
from Roseville Hospital to Sutter Hospital and that the
distance between the two is over 20 miles. Although Gilles-
pie testified that he had an understanding with Sutter that
he was to check in at 11 p.m. no matter what time he
arrived, Elizabeth Truett, a technologist at Sutter, credibly
testified that she worked on the same shift with Gillespie
on Wednesdays and Fridays; that she was in charge of the
shift; that, except for one occasion when he called in to say
he would be late, he usually either reported on time or
early; and that when he was late it was by only 2 or 3
minutes.
Gillespie testified that on September 25 he injured his
elbow while working at home in the morning, and that he
called into WCL and said that he would not be able to
work his shift because he had injured his arm. Gillespie
treated his arm that day and reported to work at Sutter at
I1 P.M.
On September 26, Gillespie was called into Keenan's of-
fice and was given his evaluation. The evaluation rated
Gillespie as average in 9 categories, below average in 10
categories , and unsatisfactory in 3 categories.
Gillespie's version of what occurred in Keenan's office is
categorically contrary to the testimony of Keenan and Wil-
liamson in many respects. Gillespie's testimony is summa-
rized immediately herembelow.
Gillespie testified that he was shocked by the evaluation
and told Keenan that he thought he was being "railroad-
ed." After going over several points of the evaluation, Gil-
lespie told Keenan that no one had ever come to him with
any of these problems or in any way criticized his work.
Gillespie pointed out that only 3 months earlier he had
received an excellent evaluation from Williamson? Gilles-
pie told Keenan that he could not believe the evaluation
and thought it was unfair. Keenan asked, "Well, what did
you expect?" and Gillespie replied that he expected a bet-
ter evaluation. Keenan then said, "Well, I have begged for
help and you didn't lift a finger to help me . . you wanted
to join the union ." Gillespie further testified that later in
the conversation Keenan asked him if he had worked at
Sutter the night before, to which Gillespie replied that he
had. Keenan told Gillespie that he could not believe that
Gillespie had called in sick at WCL but had reported to
work at Sutter. Gillespie explained to Keenan that he had
9 According to Keenan's credited testimony, this occurred at a subse-
quent interview (on October 3) when Gillespie was notified of his termina-
tion
injured his arm earlier that afternoon, had treated it during
the day and, although he was unable to report to work at
WCL at 3 p.m., his arm felt better and he was able to
report to work at Sutter at 11 p.m. Gillespie also testified
that he told Keenan that he "took the day off without
pay." Gillespie further testified that Keenan told Gillespie
that he thought that Gillespie had committed a terminable
offense and felt that Gillespie should be terminated imme-
diately, but he wanted to check with his attorney and the
board of directors of Respondent in Reno and would talk
to Gillespie again in 2 or 3 days.
Keenan's and Williamson's testimony as to the interview
on September 26 was substantially in accord and is sum-
marized immediately herembelow.
Gillespie had been rated as unsatisfactory with regard to
the use of sick time, so Keenan discussed the purpose of
sick time and reminded Gillespie of the WCL manual and
memoranda dealing with the use of sick time. In the middle
of the discussion, Gillespie said he wanted to make a clean
breast of the situation, since he knew that they were check-
ing on him. He stated that he had called in sick the day
before and thereafter went to work at Sutter. Keenan asked
Gillespie how he knew he was being checked on when
Keenan did not even know he was working at Sutter. Gil-
lespie said that a lady had called Sutter the night before
and asked for him, and when he answered the phone, she
said she wanted "Bill" and hung up. Keenan responded
that he had never known Gillespie was working at Sutter,
that he had not been checking up on him, and that he was
amazed that Gillespie would call in sick, not come to work
at Western Clinical Laboratory, and then go to work some-
where else. Keenan asked what possible explanation he
could have for such conduct. Gillespie told Keenan that he
had injured his elbow and it was paining him, so he called
in sick; that he thereafter soaked it; and that it seemed to
get better around dinner time, so he went to work at Sutter
at his regular time. Keenan then asked him why he did not
report to work the rest of his shift at WCL, if he felt better
at dinner time, since his shift ran to 11:30, and Gillespie
answered that it had never occurred to him to do so. Keen-
an testified that he was very surprised and asked Gillespie
if he realized that WCL was paying him for being sick, to
which Gillespie responded that it was not right but that is
what happened. Keenan testified that he then turned to
Williamson and asked what he thought should be done,
and Williamson replied that he thought the man should be
terminated. Keenan replied that he could understand why
Williamson felt that way, that he had the same feeling that
Gillespie was "ripping them off," but perhaps they were
overreacting. Keenan told Gillespie he would get a "fair
shake," that the matter would be presented to the general
manager and the administrative committee, as well as the
legal counsel of WCL, but that he could not offer him
much hope, but perhaps others might feel differently.
Keenan then asked Gillespie if he wanted to review his
evaluation or wanted to discuss specific points, and Gilles-
pie replied that he did not agree with the evaluation, but
did not want to discuss it. Keenan then advised him he
would be preparing a memorandum to the file regarding
this incident over the sick time, and told Gillespie he could
have a copy if he wanted one.
742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Also, Respondent's witnesses testified as to what action
was taken after the interview. Keenan testified that on the
morning of September 27, 1974, he checked the timecards
to see if Gillespie had actually expected WCL to pay him
sick time for the day he called in sick and went to his other
job, and that he did, that Gillespie's timecard stated "sick"
"8" for the September 25. Gillespie had written a note
which was attached to the timecard. Copies of the note
were made and it was reattached to the timecard. The pur-
pose of making a copy of the note was to have documenta-
tion to present to the administrative committee, as Keenan
told Gillespie he would do. Later that day or the following
day, Keenan was advised by Hueners or Williamson that
there was a new timecard for Gillespie that did not contain
a claim for sick time on September 25. Keenan looked at it
and noticed that there was also a different note. The time-
card was substantially changed and there were comments
on it that had not been there before. An "o" was written
under "regular" time instead of an "8" under sick time.
The timecard later disappeared altogether and Keenan was
unable to recall when that occurred or if they had the time
record when the termination check was prepared.
After the meeting with Gillespie, Keenan asked Wil-
liamson to check with Sutter to find out if Gillespie worked
other times and was informed that Gillespie was working
at Sutter on Wednesday, Friday, and Saturday, that there
were conflicts in the records between when Gillespie was
supposed to be working at Sutter and when he was sup-
posed to be working at WCL and that this had been going
on for some time.
Williamson testified that, after the meeting on Septem-
ber 26, Keenan asked him to find out what shift Gillespie
was working at Sutter and how long he had been working
there. Williamson called Mrs. Crespi, the chief medical
technologist at Sutter, who told him that Gillespie was
working Wednesday, Friday, and Saturdays from 11 p.m.
to 7 a.m. and had started in June 1974. Williamson and
Keenan then correlated the dates he was working at WCL
and the dates he was working at Sutter and found that he
was either leaving WCL early or getting to Sutter late.
Williamson further testified that on September 27 he ex-
amined Gillespie's timecard for September 25 and saw "8"
hours entered under the "sick" time column. A few min-
utes later, he went back to get the timecard for Dr. Keenan
and found the note. He took the timecard and the note to
show Keenan, and a copy was made of the note. Around 5
or 5:30 p.m., he received a report from Hueners that Gilles-
pie was doing something on his timecard, so he went back
and looked. He found that the card had been changed to
reflect an "o" through "regular" time instead of an "8"
under sick time, and there was no erasure, that it was a new
card. There was also a note attached to the timecard which
was different from the note that had been attached that
morning. (The first note indicated that he was applying for
sick time and the second note omitted such a statement.)
Hueners testified that on the afternoon of September 27,
between 3 and 5 p.m., he was in Williamson's office and
observed Gillespie take his timecard out of the box outside
Williamson's window, that the timecard had a note at-
tached, that Gillespie laid it down, picked up the timecard
tablet and tore a new timecard off and then wrote out a
new card. He then took a piece of scratch paper and wrote
a note which he attached to the new card, put the new
timecard in the box and took the other timecard and note
with him.
Respondent' s witnesses were more impressive than Gil-
lespie and their testimony as to the September 26 interview
and the action they took thereafter is credited. It is found
that they were aware that Gillespie had first charged Re-
spondent for sick time on September 25 and then later
changed his time record and the explanatory note attached
to indicate that he was not charging sick time.
Further, it is found as a result of checking with Sutter,
Keenan reasonably believed that Gillespie was falsifying
WCL's records, not only as to the sick leave on September
25, but probably also as to the time he left WCL on Wed-
nesdays and Fridays.
It appears that after several days (on either October 2 or
3), Gillespie was summoned to another interview with
Keenan and that he took Monte Young with him. It fur-
ther appears that Williamson and Oda were also present.
Gillespie's testimony as to the interview is as follows:
A. Dr. Keenan told me that he had contacted his
attorney and the Board of Directors in Reno and they
agreed with him that I was to be terminated. And, he
had my termination check there and he asked me to
look over the check and make sure it was right. And,
as a matter of fact they had not paid me for eight
hours, they had overlooked that and he said he would
take care of that.
I was pretty upset at that point.
Q. Did Dr. Keenan say why you were being termi-
nated, at that point?
A. Yes. He said, for calling in sick. And again, I
told Dr. Keenan that I had not put in for a days' pay;
that day. I had not called in sick, I had called in un-
able to go to work.
He did not seem to pay any attention to me. He
said, "well, you have just been caught."
I said, "well, as a matter of fact , it is not even on my
time card that I put in for eight hours pay. Eight hours
sick pay. There is a copy of my time card that I put in
for zero hours."
Q. And, did you discuss your evaluation again?
A. Yes, I reiterated again that I felt the evaluation
was unfair and that it was due to my union sympathies
and not my abilities. I merely repeated what I had said
on the September 26th meeting . And Dr . Keenan
again said that he felt that my evaluation had been a
fair one and that he had agreed with what my supervi-
sors had written down.
That was just about all that was said about the eval-
uation.
Gillespie further testified that Young left and that he
had a further conversation with Keenan as follows:
I said, "Dr. Keenan I have heard that you blackball
people."
WESTERN CLINICAL LABORATORY, INC. 743
Dr. Keenan said, "What do you mean blackball?"
I said, "I understand that there was a technologist
who, five or five and one half years after you had fired
him had-an employer had sent a letter for a recom-
mendation and you had shot him down."
Dr. Keenan didn't say anything to that. But, I said,
"Are you going to blackball me?"
Dr. Keenan said, "Are you going to continue to bad
mouth me?"
I said, "Dr. Keenan, I have never bad mouthed
you."
Dr. Keenan said, "Yes, you are right there, I have
never heard you, or heard of you saying anything
about me." He said, "Well, let us put it this way: you
will never get a job between Roseville and Reno." He
said, "I could call pathologists in Sacramento."
Q. Okay. Anything further?
A. Well, I said something else about the evaluation,
the disparity between the first and second evaluations.
Tom came back in and Dr. Keenan wanted to get Bud
back in and ask him why the difference in the evalua-
tions.
I said, "Look, I have been fired. I just want to get
out of here." I said, "Whatever is between you and
Bud, or you and Tom, or whatever you want to talk
about has really nothing to do with me." I said, "I
have had it, I have been fired, I have my check and I
want to leave." And, I left.
Keenan, in testifying to the termination interview, relat-
ed that he told Gillespie he had checked with the parties he
had mentioned in the previous interview and was advised
to terminate him. Keenan's testimony continues as follows:
A. I told him that I felt that it was unfortunate that
this matter had developed, this whole situation regard-
ing calling in sick or signing out fraudulently.
I had to, in my own mind, weigh whether or not if a
man would falsify his own records, whether he would
falsify reports that left the laboratory. This was a mat-
ter I had to decide in my own mind and I felt that I
could not continue him in this capacity on the basis of
the findings that I had to that time received.
Q. Did he respond to that statement?
A. Well, he did indicate to me, I remember him
saying he felt that he was being railroaded.
Q. Did he say anything else?
A. He indicated to me that he had previously re-
ceived a good evaluation, what he felt was a good
evaluation.
Q. Which evaluation was he referring to?
A. He was referring to an evaluation which was
performed when he was in the employ of Roseville
Community Hospital by Mr. Williamson earlier that
same year.
Q. Did you have a discussion with Mr. Gillespie
about his prior evaluation?
A. Well, I told Mr. Gillespie that he was not being
terminated primarily because of his evaluation, which
was a poor evaluation; he was being terminated be-
cause of his dishonesty in reporting time to me and
reporting his hours of work.
Q. Did you, at that time, discuss his evaluation that
he had received from Western Clinical Laboratory
with him?
A. I believe we tried to go into the evaluation when
he brought up this point about; well, how could he
change so much.
Never having seen the evaluation that he received as
a Roseville Hospital employee, I said that I cannot
comment on a change when I don't even know what
you are talking about.
He said he had a copy of the evaluation and would
I like to see it. I said I would very much like to see it.
Q. Did he show it to you?
A. He brought it to me and showed it to me.
Q. And?
A. I reviewed the evaluation that he received and
then I reviewed the evaluation, the more recent evalu-
ation he received as an employee of Western Clinical
Laboratory. I think I said something to him to the
effect that, "I can understand that you would be con-
cerned that these entries all on the righthand side of
the page-you would feel perhaps you were doing a
goodjob." But that was not my observations of his job
I had seen in the laboratory. I had never reviewed that
evaluation before so I could not in any way take re-
sponsibility for it. And I believe at that time I pointed
out to him that on that evaluation sheet some of the
entries, even though marked on the righthand side, did
not indicate to me he was doing a very good job or an
outstanding job.
Q. What evaluation are you talking about?
A. The one from Roseville Hospital by Mr. Wil-
liamson.
Q. Do you recall anything else that was discussed
at that meeting with Mr. Gillespie?
A. Yes, I do. I recall him asking me if I was going
to blackball him.
Q. Were those his words?
A. Yes, he did ask me if I was going to blackball
him.
Q. And did you respond?
A. Yes, I did.
Q. What did you say?
A. I asked him why he would think I would black-
ball him-first, I asked him what he meant by black-
balling.
Q. What did he say?
A. He said-I think the reason I remembered was
he said something that-
Q. Well, don't tell me what you felt, tell me what he
said.
A. He said to me, he said "I know you are one of
the most powerful pathologists in the Sacramento area
and you could stop me from working elsewhere" and
did I intend to stop him from working elsewhere.
Q. Did you answer that question?
A. Yes, I did.
Q. What did you say?
744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. I told him I was disappointed that he would
think I would interfere with his personal life. I did
indicate to him that I would never wish to see him
working at Western Clinical Laboratory because of his
dishonesty , but I had no intention whatsoever of in-
volving myself in the Sacramento pathology practice
of blackballing or in some way ostracizing him. I had
no intention , I could not conceive of myself doing
that , and I reassured him that what he did with his
personal life was fine with me. I just did not want him
working at Western Clinical Laboratory any more.
He looked at me as though , "are you really saying
that?" He gave me the impression he really didn't be-
lieve what I was saying.
I said, "Tom, if you would like I will write a letter of
recommendation . It will be an honest letter , it will say
what I know to be the facts. I will give you a copy of
it if it is helpful for you to obtain work elsewhere, you
can have a copy, it is yours ." I said that it will take me
time to draft it. I said , "I am not going to in any way
attempt to hurt your personal life."
Keenan further testified that there was a disparity in the
amount of Gillespie 's check and that he had it corrected.
Keenan was the more impressive witness as to the termi-
nation interview and his testimony is credited.
I am of the opinion that in all the circumstances , particu-
larly the almost complete contradiction between
Williamson 's very complimentary comments in his evalua-
tion of Gillespie just prior to the takeover by WCL and the
poor evaluation by WCL, that the latter evaluation was
discriminatorily motivated . In arriving at this conclusion, I
have fully considered the testimony of Respondent's wit-
nesses offered to support the latter evaluation and do not
find it as persuasive as the contrast between the two evalu-
ations. Therefore , it is found that the General Counsel has
proved by a preponderance of the evidence the allegation
in paragraph IX(b) of the first complaint and that the poor
evaluation constituted a violation of Section 8(a)(3) and (1)
of the Act.
On the other hand , I do not find that General Counsel
has proved by a preponderance of the evidence the allega-
tion in paragraph X of the first complaint that Gillespie
was discriminatorily discharged . I credit the testimony of
Respondent 's witnesses as to the changes by Gillespie of
his timecard and as to their learning of the conflict be-
tween his shifts on Wednesdays and Fridays at WCL and
Sutter and that his termination was motivated by these
facts. Based upon said credited testimony, I am convinced
that it would be inappropriate to find that Gillespie's dis-
charge was motivated by knowledge of or suspicion of his
union adherence . In arriving at this conclusion , I have giv-
en full consideration to all the findings of fact tending to
support General Counsel 's contention , including the un-
lawful conduct Respondent engaged in with respect to Gil-
lespie found hereinabove.
The October 26 Randolph-Keenan Conversation
Randolph testified that , on October 26, Keenan asked
him to come into his office where the two held a conversa-
tion. Randolph's testimony with regard thereto is as fol-
lows:
Dr. Keenan told me that he knew how some of the
members of the union had voted , but he was pretty
sure how I had voted . He did not know about some of
the others.
I said there was no way really, anyone would ever
know because it was a closed ballot.
He said that there are members of this Union who
could hurt his organization . I said these are the same
people we had before and they were considered good
techs before.
Dr. Keenan said that they had changed ; their atti-
tude had changed . He said, "It is like a malignant cell
that has to be cut out."
It was during this conversation that he told me there
would be terminations.
Randolph further testified that he does not recall that
Keenan stated any reason why there would be termina-
tions, that it was said just after Keenan stated "that there
are members in the Union that could hurt this organiza-
tion."
There is no allegation in the complaint with regard to
this incident and it does not appear that it was fully litigat-
ed. Therefore , no finding of an unfair labor practice can be
appropriately based on said testimony. While Randolph's
testimony is credited , its probative value is limited to mere-
ly confirmation of my previous finding of Keenan 's consid-
erable hostility toward accepting union representation.
Further , it indicates that he was inclined to the idea of
terminating union advocates and that he knew or suspect-
ed certain employees of being union adherents.
The Evaluation and Termination of Monte Young
(Paragraphs IX(a) and XI of the First Complaint)
Monte Young was hired as a medical technologist in
October 1972 by Keenan to work in the laboratory at
Roseville Community Hospital . It was Young's first job as
a medical technologist and he was immediately assigned
to work on the 7 to 11:30 p .m. shift to which there was no
supervisor assigned.
On or about December 14, 1973 , Young received an an-
nual performance evaluation on the hospital's form signed
by Williamson . In every category the best option is
checked and it concludes with the handwritten comment:
Monte could better utilize his capabilities if he were
given the official job as p.m. supervisor . He has been
acting in that capacity and has done an outstanding
job for the hospital laboratory.
In addition , there are written comments that Young is
"dedicated to good patient care ," "has leadership capabili-
ties" and "promotes and participates in continued educa-
tion ." In the appraisal interview Young was told by Wil-
liamson that he had been doing very well and that
Williamson was going to suggest that Young be given the
job of night supervisor.
As stated hereinabove , Young signed the first petition
WESTERN CLINICAL LABORATORY , INC. 745
for an election as president of the Association . Also, as set
forth hereinabove , he had a 6-hour interview with Keenan
in which it was found that Young stated his support of the
Union and Keenan made statements which demonstrated
his (Keenan's) considerable hostility toward union repre-
sentation and a willingness to engage in unfair labor prac-
tices to prevent it.10 It is further noted that Young acted as
the observer in the Board -conducted election on August 2.
It is clear from the record that Respondent reasonably, -
must have believed that Young was the leader in the orga-
nizational efforts of the technologists.
On October 26, Young was summoned to Keenan's of-
fice and was handed his evaluation by Keenan with the
comment that "this is your day in court ." t t The evaluation
was very poor . It rated Young as "average " in eight catego-
ries, "below average " in nine , and "unsatisfactory" in six, 12
and also contained some handwritten adverse comments.
Considerable testimony was elicited by Respondent as
well as the General Counsel to support and rebut the eval-
uation . Although such testimony has been fully considered,
setting it forth in detail would considerably amplify the
length of this Decision and would serve little purpose, for
the reasons stated hereinabove . Rather , I am more con-
vinced by evidence which I consider to be unbiased, such
as the evaluation by Williamson prior to the organizational
attempts (even though it was made some 9 months prior to
WCL's takeover) and evidence and testimony emanating
from patently unbiased sources, personnel in the emergen-
cy room of the hospital who had to rely on the technolo-
gists' performance on the evening shift.
According to Young 's credited testimony, after he exam-
ined the evaluation , he indicated his disbelief that it was a
fair evaluation and threre was a discussion of some of the
written comments . His credited testimony with regard
thereto is as follows:
Dr. Keenan said, "You should take this very seri-
ous. This is a true evaluation of you."
So then we looked at it more closely. He read to me
and we discussed-I think the first things I noticed
were two things on there ; one, he marked me unsatis-
factory in getting along with my fellow employees.
I asked him what that meant, and he read down
there at the bottom where he said-where you com-
pare wages and benefits and work schedules of union
employees as compared to non-union employees.
I said I didn't see where-nobody ever told me that
that bothered them, that I was doing anything wrong.
Q. Let me interrupt your testimony for a second.
Did you do anything in particular in terms of
comparing wages between Western Clinical Laborato-
ry and any other locations?
10 As stated heremabove , no unfair labor practices were found with re-
spect to said statements in the absence of an allegation in the complaint
relating to the incident
ii No significance is attached to this comment which, at best , is ambigu-
ous and, in any event, it appears from credited testimony of Keenan that he
frequently used the expression in connection with his appraisal with tech-
nologists of their evaluations.
12 In one category he was rated both "average" and "below average"
A. Yes. At one of our meetings, we kind of won-
dered what the difference was between our lab and the
union laboratory.
I then received a copy of Kaiser's contract; their
pay scales as per technologists.
Q. Union contract?
A. Union contract, yes.
I then took our pay scale and just wrote in the com-
parable wage scales that Kaiser paid at that time for
each of the Tech I, Tech II, Tech III, Tech IV and like
that.
Q. Okay, and what did you do with that document
that you wrote up?
A. The people that wanted a copy, I gave it to
them.
Q. Did you do anything else with it?
A. I posted it on a bulletin board.
Q. Okay. Was there any other discussion then
about that portion of your evaluation?
A. Yeah, I said that I didn't think that it bothered
anybody. As a matter of fact, I get along with my
fellow workers very well and have no problem at all
getting along with them. There is no problem with that
at all.
He then said-Dr. Keenan said, "Well, how about
this on the bottom?" He said, "Here is where you
don't follow your chemistry work through."
I asked him what that was and he said , "On the
salycylate."
Q. What is the salycylate?
A. It is measuring the aspirin level.
Q. And that is a test?
A. That is a test, a chemistry test that we do.
Q. All right.
A. I said, "Well, that is really unusual," because I
didn't think I had ever done a salycylate.
Dr. Keenan then turned to Bud and said, "Maybe
that was Gil who had done that."
Keenan then asked him if he would like to see an exam-
ple of his "bad work" and referred to a spinal fluid test
which Young had performed the night before (after the
evaluation had been prepared). Young testified that he re-
membered the test because he had received an abnormally
low result . He wanted to redo the test but could find no
more of the specimen on which he could perform another
test . Young then telephoned to the hospital floor and said
that he was returning the results of the test but that the
results were questionable . Young asked the nurse on duty
to call the attending physician and ask if he wanted the test
repeated . Keenan stated that he had had the test rerun on
the day shift and found that Young's results were incorrect.
Young asked whether they had obtained another specimen
from the patient. Keenan replied that he had retrieved the
specimen from the refrigerator . It appears that Young, be-
cause he genuinely thought there had been no more of the
specimen left, became angry and walked out of the room,
746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stating that he wanted to make copies of his evaluation.
Young made copies of his evaluation and returned to
Keenan 's office . At that time Keenan told Young that he
would be reevaluated in 30 days and that if he did not
improve in his work performance, he would be terminated.
On September 25, the evening that Young performed the
above mentioned test , two of the four technologists sched-
uled to work were out sick. In addition, it was an extremely
busy night for emergency room work. Young admitted that
it would have been best to have contacted a supervisor
before releasing the spinal fluid test result; however, he
explained there was no time to do so that evening. It is
noted that the emergency room staff, who apparently were
impressed by Young' s performance in the laboratory that
evening , sent a memorandum dated September 25 to Keen-
an praising Young's speed and efficiency in performance
of his laboratory duties that evening. The memorandum
was signed by the emergency room personnel, four nurses
and the physician in charge.13 Also, Dr. Simon Viss, an
emergency room physician, heard of the poor evaluation of
Young and, on September 26, sent a letter to Keenan with
regard thereto. Viss' letter states in part: "I have always
been impressed with his excellent attitude , spirit of coopo-
ration, enthusiasm and the accuracy of his work. It is my
opinion that he performs in a superior and outstanding
manner in all areas of his work." 14 Apparently Keenan
chose to ignore both the memorandum and letter.
Young credibly testified that on October 2 he asked Wil-
liamson why he had received such a bad evaluation and
that Williamson replied, "Well, Monte, after you joined,
what did you expect?"
In all the circumstances, including the prior excellent
evaluation by Williamson set forth above,15 it is found that
the poor evaluation of Young was motivated by his activity
and leadership role in organizing the technologists and that
said evaluation was violative of Section 8(a)(3) of the Act.
Young credibly testified that on October 24, Dr. D. J.
Stoudard, one of WCL's pathologists, came into the labo-
ratory and asked Young to accompany him to his office.
Young replied that he was working in "stat work" (emer-
gency work to be performed immediately) and would be
with him in a minute. Stoudard told Young that someone
else would pick up his work and that Young should come
with him immediately. Stoudard and Young went into one
of the offices, where Stoudard gave Young 12 slides which
he instructed Young to examine and diagnose. Young said
that he could not give a diagnosis, as he was only a medical
technologist, not a doctor. Stoudard told him just to write
down everything that he saw. Young said he would do so
and would also note whether he could refer the slide to a
pathologist for review. Young reviewed the slides and
wrote down his answers which he returned to Stoudard.
It appears that he received a very low grade on the test. 16
Although a plausible reason was offered for giving him the
test, that he had failed to read a slide correctly, I am of the
opinion that he was singled out to take the test in order to
obtain proof to substantiate a reason for terminating him.
The record clearly indicates that not infrequently errors are
committed by technologists, but there is no showing that
any of them was ever given a test to check on his or her
competence because of an error . l" Based upon Randolph's
credited testimony set forth hereinabove that it had been
suggested at a management meeting that they "make a
book" on those whom they would terminate, Young's
known leadership role in the organizational activities of the
technologists , Respondent's union animus , and all the cir-
cumstances , I am of the opinion that the test was given in
order to supply a chapter in the "book" that Respondent
was attempting to assemble in order to document an osten-
sibly lawful reason to terminate Young.
Young further credibly testified that on October 28 he
was called into a meeting with Keenan, Williamson, Oda,
and pathologists Dr. Goldfarb and Dr. Stoudard. Keenan
told Young that he had not improved on his evaluation,
that he was doing very poor work, and that he was going to
be terminated. Stoudard added that Young had flunked
the 12-slide test. Keenan then said that he would give
Young an additional 2 weeks, at which time he would be
reevaluated in every aspect of the laboratory work. Keenan
added, however, "I don't think you want to go through the
personal embarrassment of that, but you can if you want
to." Young asked who his evaluator was to be at the end of
the 2-week period, to which Keenan replied that it would
be he. Young replied that he thought that he would be
wasting his time and Keenan's and that he would leave
immediately. That was the last day Young worked at
WCL.
Based upon all the circumstances, and particularly the
above findings with respect to Young, I am convinced that
Young was constructively discharged on October 28 and
that it was discriminatorily motivated. I am of the opinion
that the alternative to termination, to work 2 weeks, was a
meaningless alternative . It appears that Young must have
reasonably assumed from the manner in which he was giv-
en the choice that the 2-week trial would only be an exer-
cise in futility for him Thus, his choice of the alternative of
immediate termination , instead of the meaningless other
choice, is found to constitute a constructive discharge and
that Respondent was discriminatorily motivated in giving
him the two choices. Therefore, it is further found that
General Counsel has proved by a preponderance of the
evidence that Young was constructively discharged on Oc-
tober 28, 1974, in violation of Section 8(a)(3) and (1) of the
Act.
13 Although this is hearsay evidence , there was no objection to its receipt
in evidence and, in the circumstances , I am of the opinion that I can rely on
it as of probative value
14 See preceding footnote
15 Although Williamson testified that the comment about making Young
a supervisor was written at the request of Wesley Berg, a member of the
board of directors of the hospital at the time , Berg credibly denied that he
made such a request of Williamson
16 1 am in no position to judge the appropriateness of the grade he re-
ceived , but there is nothing in the record to indicate that the grade was not
substantially correct Rather , it appears that Young believed that he had
failed the test and claimed he was under stress when he took it
17 For example , Omar Ahmad, a technologist , made an apparently serious
error on August 7, 1974 , on a spinal fluid test (which error was checked by
Williamson ), but there is no evidence that he was given a test to check on
his competence
WESTERN CLINICAL LABORATORY, INC. 747
Evaluations of Hernandez
(Paragraph IX(d) of the First Complaint)
During the course of the hearing, the first complaint was
amended to add a subparagraph (d) to paragraph IX of the
complaint alleging that evaluations of Hernandez on Octo-
ber 10, 1974, and February 5, 1975, were discriminatorily
motivated.
In the October evaluation she was rated "above average"
in five categories, "average" in seven categories, "below
average" in eight categories, and "unsatisfactory" in two
categories . Although on June 27 she had volunteered to
Keenan that she was strongly in favor of union representa-
tion, there is virtually nothing else in the record to support
a finding that the October evaluation was discriminatorily
motivated. While Williamson's evaluation of her before the
takeover may very well have been better with respect to the
choice of options in the various categories on the hospital
form, for the reasons stated hereinabove that fact of itself
is of no probative value. Consequently, I am of the opinion
that I cannot appropriately find that the subjective esti-
mates of her in the October evaluation were discriminaton-
ly motivated. Moreover, it does not appear that the evalua-
tion can be characterized as "poor."
As for the February 1975 evaluation, she was rated "av-
erage" in 14 categories, "below average" in 6 categories,
and "unsatisfactory" in 2 categories. The only intervening
incidents which can be said to relate to her union adher-
ence were insubordinate actions on her part to show her
resentment with regard to Monte Young's termination. It
appears that these incidents were discussed with her during
her February 1975 evaluation.
As to the above-mentioned incidents of insubordination,
Hernandez testified that she learned of Young's termina-
tion and was very angry. Her testimony as to what then
ensued is as follows:
So, shortly thereafter, Dr. Keenan walked out, and I
let into him.
Q. What did you say?
A. I asked him where Monte was, and he said that
Monte's evaluation did not measure up, and "I cannot
discuss another employee's evaluation with you, but if
you would care to discuss it with Mr. Young I will
have him come back."
Of course, I couldn't butt in on another employee's
evaluation. I had a test tube in my hand. I didn't even
realize it, and I just picked it up and smashed it down
on the counter.
JUDGE GILBERT: I don 't understand.
THE WITNESS: I had a glass test tube in my hand and
I just picked it up and smashed it and walked out.
Q. (By Mr. Berkowitz) Was there anything further?
A. I told him it was a frameup.
Q. You told Dr. Keenan it was a frameup?
A. Oh, yes. I was furious.
Q. And what did Dr. Keenan reply, if anything?
A. He didn't. I just went storming out.
Q. And was that incident referred to or discussed in
your evaluation?
A. That is one of the insubordinate attacks.
Q. All right. And what was the other?
A. Well, the following evening, on my way back
from the cafeteria, he was standing, talking to Bud
Williamson, and I was still plenty mad and I butted
into the conversation. I realized later it was bad man-
ners, but anyway I did.
I told him.
JUDGE GILBERT: Told who?
THE WITNESS: I told Dr. Keenan that I thought he
was terribly over-reacting to this business of the union
and he was only firing the union people, and that there
was absolutely no job security in that lab for the union
people.
That was about all. Of course, he knew that I was
furious.
Q. (By Mr. Berkowitz) Okay.
A. He hollered at me, "If you don't like it here you
can leave."
Her testimony clearly demonstrates that Respondent had
reasonable grounds to consider that she was insubordinate
on said occasions.
Again, I am of the opinion that I cannot appropriately
find that the subjective estimates of her in the February
1975 evaluation were discriminatorily motivated, although
it was not as favorable as her prior evaluation.
Consequently, I conclude that the General Counsel has
failed to prove by a preponderance of the evidence the
allegation in paragraph IX(d) of the first complaint.
Evaluation of Cupler
(Paragraph IX(c) of the First Complaint)
It should be noted that the record clearly indicates that
Respondent was aware of Cupler's prounion attitude and
that it was he who was responsible for Will appearing on
June 27 when the employees were being individually inter-
viewed.
On October 28, Cupler received his evaluation which
found him to be "average" in 11 categories, "below aver-
age" in 6 categories, and "unsatisfactory" in 5 categories."
It is noted that in his evaluation by Williamson in May
1974 Williamson wrote the following comments: "Consci-
entious in work performance-dependable employee-
promotes or participates in continuing education." There is
also the following written comment: "Jim is a long time
employee of Roseville Commnity Hosp Laboratory. Dur-
ing those years (8) he has proven to be a good Medical
Technologist... .
It is further noted that in April 1974 he had an evalua-
tion by Williamson which contains the following handwrit-
ten comments: "Willingness to help out by working after
hours; produces high volume of quality work." There are
also the following handwritten comments: "Jim continues
to be one of our most conscientious technologists. He par-
18 There is a comment, however, as to the unsatisfactory rating with re-
spect to "at work on time," as follows, "unsatisfactory until notification
[ostensibly referring to the written reprimand discussed hereinabovel-aver-
age since "
748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ticipates in continuing education. Maintains a keen interest
in his profession." In an April 1973 evaluation there are
contained the following handwritten comments: "depart-
ment supervisor, hematology, participates in continuing
education, supports the field of medical technology." It
also contains the further handwritten comment: "Jim
Cupler's supervising capabilities will be utilized better as
we continue to grow with Roseville Community Hospital."
The disparity between the poor evaluation by WCL (af-
ter the organizational activities) and the consistent com-
plimentary comments by Williamson in the evaluations
which preceded the organizational activities, and the rea-
son he gave for Cupler's subsequent transfer to the night
shift (that he needed a "good tech"), when viewed in light
of Cupler's known union adherence and Respondent's ani-
mosity toward union representation and the leaders seek-
ing to obtain it, leads me to the conviction that the October
28, 1974, evaluation of Cupler by Respondent was discrim-
inatorily motivated. Therefore, I am of the opinion that the
General Counsel has proved by a preponderance of the
evidence the allegation in paragraph IX(c) of the first com-
plaint and that by said conduct Respondent violated Sec-
tion 8(a)(3) and (1) of the Act.
As indicated hereinabove, there was a second hearing in
this proceeding to take evidence on a second consolidated
complaint based upon charges filed after the first hearing
had closed. Following is a resolution of the issues raised by
said second complaint.
Attempt to Cause Termination or Other Disciplinary
Action Against Geraldine Mastin
(Paragraph VI of the Second Complaint)
It is alleged that Respondent violated Section 8(a)(1) of
the Act "by attempting to cause the termination, discipline
or reprimand of Geraldine Mastin" because she testified as
a witness for the General Counsel in the first hearing. Mas-
tin is not an employee of Respondent, but is a registered
nurse employed by Roseville Community Hospital. She is
the "charge nurse" in the emergency room on the p.m. shift
which runs from 3 to 11:30 p.m., the same hours which
Young worked in the laboratory. Mastin was called as a
rebuttal witness by the General Counsel on April 2, 1975,
the last day of the first hearing.
In essence , Mastin testified that the laboratory per-
formed services for the emergency room and that Young's
work was performed quickly and that there were never any
complaints about the quality of his work. Her testimony
apparently was offered to rebut Respondent's assertion
that Young was incompetent and inefficient.
I did not rely on her testimony (to the effect that Young
was efficient and competent) in resolving the issues with
respect to Young, since it was of little probative value. As
disclosed by her testimony, she had little opportunity to
pass judgment on the work of any of the laboratory tech-
nologists with sufficient specificity to permit her evaluation
of them to be given much weight. It appears, however, that
Keenan could not and did not foresee that I would arrive
at such a conclusion. On the contrary, as set forth herein-
below, it appears that he was very much disturbed by her
having testified in support of Young.
In essence, Keenan testified that he was disturbed by
what she was prepared to testify as had been indicated by
General Counsel's offer of proof, and interviewed hospital
personnel to determine its validity, that he was not aware
of any problems with regard to the night shift until then.19
It appears that the day after Mastin testified Keenan
arranged to have two conversations with Dr. Robert Lind,
director of emergency services at the hospital, one early in
the morning of April 3, and the other later in the day with
Ronald Logar, Respondent's counsel, present part of the
time.
Lind credibly testified to the first conversation as fol-
lows:
A. I went into his office and he was wondering, I
believe, if I was aware of the Western Clinical involve-
ment with the NLRB in this situation.
I said that I was and he proceeded to ask me if I was
aware of Gerry Mastin testifying on the previous day?
I said that I was aware she had been subpoenaed,
but I don't think I was aware at that time that she had
testified on the previous day.
He was, I think, upset at that time with the testimo-
ny that she had given.
Q. What did Dr. Keenan say?
A. To the best of my recollection, he went into de-
tail as to her testimony and of its relevancy to Western
Clinical Laboratory and that he felt it had been very
detrimental to Western Clinical Laboratory.
Q. And, what else was discussed that was said?
A. Well, I think that his main concern was that Ms.
Mastin had not reported this to the proper administra-
tion of the hospital, at that time;
JUDGE GILBERT: Had not reported what?
THE WITNESS: Had not reported that she was going to
testify at the trial to the administration of the Hospital
and that this was a rather flagrant thing on her part.
In addition to this, he felt that the testimony that
she had given at that time exposed him as well as
Western Clinical Laboratory to potential malpractice
or public scorn or ridicule.
Q. (By Mr. Berkowitz) Okay. Do you recall whether
anything else was said in that conversation?
A. Well, I think that my first concern was, "What
did she say?".
I think he went into detail as to what she testified to.
I said, "Well, I would just like to see a copy of what
she said in court before I make any judgments one
way or another."
Q. What did Dr. Keenan respond to that?
A. I think that he got into the fact that the person-
or he was telling me that a person such as this may not
have good judgment in the future and because of that,
19 1 had ruled that I would not receive her testimony as to the deteriora-
tion in the quality of the laboratory service on the night shift after Young's
termination It is noted, as indicated herembelow, that Keenan had been
made aware of complaints with regard thereto at least a week before Mastin
testified, according to Williamson's credited testimony, that he had consult-
ed with Keenan about the need to make an adjustment in the night shift
because of complaints he had received about that shift
WESTERN CLINICAL LABORATORY, INC 749
might unnecessarily expose the hospital or perhaps me
to unnecessary litigation by testifying without, per-
haps, first checking with administration.
Q. Anything else said in that regard?
A. This was, I think, the main context of our dis-
cussion.
I think he mentioned, also, that because of this he
really felt he should speak with the hospital adminis-
trator, nursing personnel, and the Board regarding
maybe getting rid of a person like this.
Lind further testified, in essence, that Keenan clearly
indicated that she should be terminated; he told Keenan
that he did not have the authority to terminate her; he felt
she was an excellent nurse and expedited the emergency
service "tremendously"; "we [the staff] had confidence in
her judgment"; he "would probably like to see her stay
on"; and an attempt to get rid of her would "generate
physician involvement." It appears from his cross-exami-
nation that Keenan also asked him questions with regard
to the matters contained in the aforementioned offer of
proof.
It appears that the second conversation was more or less
repetitive of the first and that Logar was present to explain
about Mastin's testimony. According to Lind's credited
testimony, reference again was made to the matters con-
tained in the aforementioned offer of proof. However,
Lind also credibly testified as follows:
Q. (By Mr. Berkowitz) Was there anything said to-
wards or with respect to the tone of voice that Ms.
Mastin may have used on the witness stand?
A. Yes. I recall that she was said to have been hos-
tile. Mr. Logar explained to me, also, that the records
may not really indicate the amount of hostility that
she had in her tone of voice towards the type of labo-
ratory service.
Since the offer of proof was made by General Counsel, it is
apparent that the reference to her tone of voice was not
addressed to the offer of proof but rather to her testimony.
Keenan testified that he also spoke with Hospital Ad-
ministrator Ron Davey on April 4. In that conversation
Keenan "reminded" Davey of the hospital's rules requiring
an employee to notify the hospital upon being subpenaed
and asked Davey to investigate the matter. Apparently,
Keenan also discussed Mastin's testimony with Davey, be-
cause Keenan testified that he called Davey on May 1 and
asked him if he had completed his "investigation" and that
Davey told him that he had reviewed the transcript and
had not seen anything in the transcript "derogatory" of
Respondent. It appears that no disciplinary action was tak-
en against Mastin.
Respondent in its brief confines its defense (to the alle-
gation regarding Mastin) solely to the argument that Mas-
tin is a supervisor and, therefore, does not come within the
protection of the Act. No purpose would be served in re-
solving the issue of whether she was or was not a supervi-
sor. Even if it were assumed that she is a supervisor, that
affords no defense to the allegation. Economic reprisal
against a supervisor for testifying in a Board proceeding is
violative of Section 8(a)(1) of the Act inasmuch as it would
tend to inhibit employees as well as supervisors from testi-
fying in Board proceedings. Better Monkey Grip Company,
115 NLRB 1170, 1171 (1956). It follows therefrom that an
attempt to cause a reprisal to be taken against a supervisor
for testifying in a Board proceeding is also violative of the
Act, since it would tend to have the same effect as an ac-
complished reprisal.
Based upon Lind's credited testimony and the above tes-
timony of Keenan, it is found that Keenan was attempting
to cause Mastin's termination, in substantial part for her
testifying in support of General Counsel's case. Conse-
quently, I am of the opinion that General Counsel has
proved by a preponderance of the evidence the allegation
in paragraph VI of the second complaint and that by the
conduct alleged therein, Respondent violated Section
8(a)(1) of the Act. The fact that Mastin was not in the
employ of Respondent does not affect my conclusion. A us-
tin Company, 101 NLRB 1257, 1258, 1259 (1952).
Transfer of Cupler and Randolph to Night Shift
(Paragraph VII of the Second Complaint)
It is alleged that Respondent discriminatorily transferred
Cupler and Randolph from the day shift to the night shift
because of their protected activities "and/or" because they
testified in the first hearing. The issue with respect to this
allegation is whether the transfers were motivated by busi-
ness reasons, as asserted by Respondent, or unlawfully mo-
tivated as alleged.
By memoranda dated April 3, 1975, and signed by Wil-
liamson, Cupler and Randolph were notified as follows:
It has been brought to our attention that the 3:00
PM to 11:30 PM coverage is lacking experienced per-
sonnel. Since you are one of only two full time senior
technologists who has not been designated as a section
head or supervisor, I am transferring you to that shift
effective Monday April 7, 1975.
It is hoped that this transfer in personnel will
strenghten [sic] the 3:00 PM to 11:30 PM coverage.
Williamson credibly testified that he made the decision to
effect the transfer because of complaints he had received
about the newer people on the p.m. shift and slowness of
the service, and that he discussed it with Keenan approxi-
mately a week to a week and a half before the end of the
first hearing.20
Lind credibly testified that there had been complaints in
the emergency room about the newer technologists on the
shift, that Mastin had complained to him that there had
been a significant change in the quantity or quality of the
work emanating from the laboratory, and that there had
been incidents of poor service which he had observed. It
appears from Williamson's credited testimony that a com-
plaint by Mastin about the work of the shift as well as
complaints of other hospital personnel had been relayed to
him during the course of the first hearing.
As to the contention that the selection of Randolph and
Cupler, instead of others, was discriminatorily motivated,
20 Williamson was a convincing witness as to this aspect of his testimony
750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the record is not sufficiently clear to determine whether or
not they were the "only two full time senior technologists"
available for transfer.
In the circumstances, I do not believe it appropriate to
reject Respondent's reason for effecting the transfer Con-
sequently, I am of the opinion that General Counsel has
failed to prove by a preponderance of the evidence the
allegation in paragraph VII of the second complaint that
Cupler and Randolph were discriminatorily transferred to
the night shift.21 It should be noted that the transfer to the
night shift did not constitute a demotion or involve more
unpleasant work for Cupler or Randolph and that it enti-
tled them to an increase in pay. I am not satisfied that the
personal inconvenience it caused Cupler was of sufficient
significance to require a contrary finding. Also, absent any
probative evidence as to the reason why Randolph re-
signed shortly after the transfer, I cannot consider it to be
of any materiality. I have not failed to consider all the
circumstances which would tend to support General
Counsel's contention with respect to the transfers.
Discharge of Hernandez
(Paragraph VIII of the Second Complaint)
It is alleged that Isabel Hernandez was terminated on or
about April 7, 1975, because of her union adherence "and/
or" because she gave testimony in this proceeding.
Keenan testified that it was his decision to terminate her
and it was made around the time of the first hearing. His
testimony continues as follows:
Q. (By Mr. Logar) Did you have a reason for her
termination?
A. The basic reason was the tampering with records
unauthorized. When this occurred and when it was
brought to my attention-
JUDGE GILBERT: I am sorry; I can't hear you.
A. Ms. Hernandez indicated in court that she, in
fact, did go into Mr. Williamson's office and did seek
out records and did take copies of records.
This supported testimony that was given to me by
Mr. Williamson that there were eye-witnesses who
said she had done these things.
I felt that this was dust about as far as we could go
with Ms. Hernandez. I felt that was out of line; I had
already felt that her performance and her insubordi-
nation in the past, as indicated in the preceding trial,
earlier in the trial, was sufficient grounds to terminate
her, and when I felt that she did this, there was just no
more; I just could not consider continuing her any
more.
Hernandez testified as follows to her termination inter-
view:
A. Yeah, sometime in the early afternoon, Bud
asked me to step into Dr. Keenan 's office, so he es-
2i As is noted hereinabove, the selection of Cupler to help improve the
service on the night shift because it needed a "good tech" tends to confirm
my finding hereinabove that his poor evaluation on October 28, 1974, was
discriminatorily motivated
corted me in and Dr. Knight was there, and I think,
Dr. Goldfarb was there, if I remember correctly.
Anyway, he asked me for my letter of resignation.
Q. Who asked you?
A. Dr. Keenan.
Q. All right.
A. And I told him no. So, then he handed me the
check, dated-I am sure it was dated on a Friday; it
was already made out. The check, I think, was two
days old, anyway. This was on a Monday that I went
in.
So, I asked him if it had all the holidays and over-
time and he said they didn't have it completely item-
ized.
Anyway, I think I asked Mr. Williamson if that
meant Placerville, too, and Dr. Keenan said, "You are
all through at Western Clinical."
So, I said, "Cheers" and walked out.
It is noted that she asked about her employment at "Pla-
cerville." This referred to the fact that she had been work-
ing part time in the laboratory at Marshall Hospital (which
is located in Placerville) since November 1974 and that the
laboratory had been taken over by WCL effective Febru-
ary 1, 1975. It appears that she was working 40 hours per
week at WCL in Roseville and that sometime before she
was hired at the Marshall laboratory she requested of Oda
that she be permitted to work part time and to change her
shift so she could work at the Marshall laboratory as well.
It further appears that Keenan finally arranged to permit
her to work at Roseville three 8-hour days per week (which
gave her enough hours per week to participate in WCL's
profit-sharing plan and insurance coverage). This indicates
that Keenan was willing to accomodate her despite her
professed belief in the desirability of union representation
and her above-mentioned insubordinate conduct following
Young's termination.
Based on credited testimony, it is found that on March
5, 1975, three technologists working on the 3 to 11:30 p.m.
shift reported to Williamson that Isabel had, at approxi-
mately 8 p.m. the previous day, gone into Williamson's
office, looked through files therein, and removed certain
documents and photocopied them. It is further found that
they did not know, however, the nature of the documents
which had been removed and that Williamson relayed their
report to Keenan.
Williamson credibly testified that he had not at any time
extended to any of the technologists the right to come in
and look through any of Respondent' s files, that he was
never asked by any of the technologists to see the said files,
and that in the past he had never observed any technologist
going through the files.
Hernandez testified on cross-examination during the
first hearing as follows:
Q. Did you on March 4, 1975, during your shift,
enter the office of Bud Williamson, the chief technolo-
gist?
A. I can't remember.
Q. Do you recall an incident on or about that time
when you entered his office, opened his desk file draw-
WESTERN CLINICAL LABORATORY, INC. 751
ers, removed documents, and copied them on the of-
fice copy machine?
A. I got the copy of Omar's time sheet, because on
Monday and Tuesday nights he is gone , he is teaching
school, and he is paid full salary for that while he is
gone.
Q. Did you have authority from Mr. Williamson or
any of the supervisors?
A. No.
It does not appear that any of the testimony she gave at
the first hearing on direct examination was of sufficient
significance to have disturbed Keenan. On the contrary, in
her cross-examination a good portion of her testimony was
damaging to herself (regarding her insubordinate conduct
and her admission that she had copied Ahmad's records).
Consequently, I am not persuaded that her testimony was
considered so damaging to Respondent that it could rea-
sonably be found to have motivated her discharge. On the
other hand, her admission as to copying Ahmad's records
did confirm the report that Keenan had received earlier (of
her having entered Williamson's office, removed some doc-
ument or documents, and copied them) and it also identi-
fied what document she had copied (which was not known
earlier).
I am of the opinion that said admission motivated her
discharge, there having been no prounion activity on her
part which could have precipitated her discharge subse-
quent to her profession of union support on June 27, 1974,
and her indignation over Young's termination at the end of
October 1974.
In all of the circumstances, I credit Keenan's testimony
(quoted hereinabove) as to the reason he discharged Her-
nandez .22 Therefore, I find that General Counsel has not
proved by a preponderance of the evidence the unlawful
discharge of Hernandez as alleged in paragraph VIII of the
second complaint.
Requiring Cupler to Use Vacation Time for Days He
Was Required to Be at Hearing
(Paragraph IX of the Second Complaint)
It is alleged that Respondent violated "Section 8(a)(3)
and/or (4) and (1)" of the Act by requiring Cupler to use
his vacation time for the days he was required under a
subpena from the General Counsel to attend the first hear-
ing.
It appears that Respondent did charge him with vacation
pay as alleged, except that it gave him his regular pay for 2
days, including the day he testified at the first hearmg.23 It
further appears that Respondent paid all employees for the
days they testified. It also appears that one other employee,
Randolph, was charged for vacation time as was Cupler,
but that he acquiesced in the arrangement when he in-
quired as to how the time he would be at the hearing would
be handled. On the other hand, it appears that Cupler
22 Also, Keenan was a convincing witness with respect to this aspect of his
testimony
23 It appears from Keenan's credited testimony that he was given regular
pay for the day he testified and also for one extra day in addition in case he
was needed by the General Counsel or the "Court"
made no such inquiry but wrote an "0" in the column for
hours worked on his timecard for each day he attended the
hearing . He testified without contradiction, and his testi-
mony is credited, that he notified Hueners of the subpena
and that he had to be present for the duration of the hear-
ing. He also testified that he obtained permission from Wil-
liamson to be away from work to attend the hearing, which
testimony I do not credit. It is noted that while he made no
request to be granted leave without pay, his marking "0"
on his timecard, as above-mentioned, reasonably must
have indicated to Respondent that he did not expect to be
paid for the days so marked. Williamson credibly testified
that he called Cupler on March 21, 1975, and asked him
"what the zeros meant" and that Cupler replied that they
meant "he didn't want any pay," but that he made no men-
tion of being on a leave of absence. It does not appear that
Williamson would have made such an inquiry of him if he
had given him permission to be absent for the entire hear-
ing.
On March 28, Cupler received a check for the initial
week of the hearing which compensated him for the days
he was away from work, except apparently the day he testi-
fied, by charging those days against his accumulated vaca-
tion. 4 He asked Williamson why he was paid in that fash-
ion and was told that it was Keenan's decision. On
cross-examination Cupler admitted that he did not say
anything to Williamson about leave of absence, but that
Williamson told him that a leave of absence for more than
I day had to be applied for in writing. On March 31, he
submitted a written request that he be granted leave with-
out pay retroactively for the days he was at the hearing the
previous week (March 25 through March 28, 1975) and for
the remainder of the time necessary to complete the hear-
ing.25 Shortly thereafter he received a paycheck covering
the second week of the hearing which again compensated
him for the days he was at the hearing by charging it
against his vacation time. It appears that his paychecks for
the days he attended the rest of the first hearing were on
the same basis.
Williamson testified as to his understanding of WCL's
leave of absence policy. (It appears that WCL' s manual is
silent on the matter except for absence for "an extended
period of time" with the "wish later to return to work" and
there is no provision with respect to court appearances or
jury duty.) His testimony is essentially that it is his under-
standing, if the leave of absence is for 1 day only, the em-
ployee does not lose any of his employment benefits; how-
ever, if the leave of absence is for more than 1 consecutive
day, the employee loses all of his benefits. Williamson testi-
fied that he has in the past, while an employee of WCL,
24 It is not clear when he received regular pay for the additional day as
mentioned hereinabove
25 This request was denied by Williamson by comments appended thereto
setting forth the following reasons
I All L 0 A s [leaves of absences] in excess of one day require prior
approval
2 Present demands on the laboratory staff require maximum atten-
dance
It is noted that the request made no mention of a subpena and that
Williamson's comment No 2 tends to indicate that Williamson was not
aware that Cupler was required to be at the hearing and therefore was not
available to work in the laboratory
752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
granted leaves of absence on several occasions , and more
particularly, to Cupler in the fall of 1974 which Cupler
requested to replace the vacation time he had taken pay for
when WCL took over the laboratory on July 1, 1974. Wil-
liamson, however, granted leave to Cupler for only 1 day at
a time, totaling some 12 to 16 days (on Wednesdays during
the hunting season). Williamson further testified that he
understood that he had no authority to grant leaves of ab-
sence for more than 1 day, and that such leaves of absence
must be applied for in writing in advance and have the
approval of Respondent 's general manager. Williamson
was a convincing witness with respect to the above-quoted
testimony and it is credited.
Keenan testified as follows as to why he arrived at the
decision to charge Cupler with vacation time:
I had given just a few leaves of absence , and conse-
quently, I felt that on the condition of the leaves of
absence I had given in the past, it was always prior
notification and I checked with the General Manager
to see what the policy in other practice was, and he
assured me that that was the policy in practice on the
Nevada side as well. It was an overall policy of the
corporation that leave of absence was always request-
ed in advance.
Then, I checked with Mr. Logar as to his interpreta-
tion of this, and after I visited with Mr. Mouchou, the
General Manager, and Mr. Logar, I felt that a consis-
tent application of the Western Clinical Policy would
be to give vacation time and not authorize a leave of
absence retroactively.
Had we done it that way, it would have been an
inconsistency, basically, in the policy previously ap-
plied.
Q. Well, had you taken into consideration that Cu-
pler had marked his time sheet zero hours and that
you knew where he was and his reason being absent?
A. No. What I took into consideration was that to
the best of my understanding he was required to testi-
fy at least one day, which I had witnessed, the time he
was spending in the court I did not understand to be
required of him.
I asked the business office to pay him one day and
pay him for the additional day, in the event that either
General Counsel or Court might want him to be
around additionally to follow up on his testimony.
It was my clear understanding that he was not re-
quired to be here any additional time.
Q. In other words, you had no knowledge of the
fact that he had been required to be present by the
General Counsel?
A. I felt that his participation in the courtroom dur-
ing that daily time was volitional on his part, just what
he desired to do.
Q. I see.
Now, there were other employees who testified in
these proceedings, some of them were subpoenaed; I
don't recall who they were, but what action did you
take with respect to the other employees who were
either here on a subpoena or who testified or were
present attending the hearing?
Do you have any recollection of this?
A. Yes, I do. All employees who were subpoenaed
to court to testify were, and-did testify-who were
required to be here were paid as though they had
worked that day.
To best of my knowledge, no leaves of absence were
given to any employees for time spent in the court-
room, not relating to testimony or not required by the
court.
Q. I don't know whether there were any who were
here more than the day they were supposed to testify.
Did you, with respect to any other employee, im-
pose vacation time instead of leave that day?
A. Yes; I believe Mr. Randolph was treated in the
same way; he is the only other employee that I think
stayed in the courtroom without being required, to the
best of my knowledge or subpoenaed to stay in the
courtroom.
Q. You charged him with vacation?
A. When he was testifying, during the time he was
required to be here, he was paid as though he was
working and any time that he spent in the courtroom,
when he was not required to be in the courtroom, he
was given vacation pay.
Q. Any others beside Randolph?
A. As I indicated to the court, those were the only
two individuals that would fall into that category to
the best of my recollection.
Keenan was a convincing witness with respect to the
above-quoted testimony and it is credited. Although Cup-
ler credibly testified that he notified Hueners that he was
required to remain through the entire proceeding under
General Counsel's subpena, I am not satisified that I can
assume that that fact or that Randolph was under a similar
subpena was communicated to Williamson or Keenan.
The General Counsel argues as follows:
In this case Cupler spent fourteen days at the hearing
at the request of General Counsel. It can readily be
seen that if witnesses were required to use their vaca-
tion time in order to participate in a Board hearing,
they would be reluctant to do so. While most hearings
admittedly do not go on for fourteen days, even one or
two days off an individual's vacation schedule, which
might be as little as one week per year, is significant.
The required use of vacation time in these circum-
stances is so "inherently destructive of employee inter-
ests" that a violation may be found without need for
proof of an underlying improper motive. Cf. N.L.R.B.
v. Brown, 380 U.S. 278, 287; N.L.R.B. v. Fleetwood
Trailer Co., 389 U.S. 375; Great Dane Trailers, Inc.,
388 U.S. 26 [34]. Nor is there any legitimate, compel-
ling business reason which would justify a refusal to
allow an employee time off without pay while attend-
ing an N.L.R.B. hearing under subpoena.
Although in General Counsel's view Respondent's
requiring Cupler to use his vacation time is a per se
violation of the Act, it should be noted that the evi-
dence demonstrates that Respondent's conduct in this
regard was yet another act of deliberate discrimina-
WESTERN CLINICAL LABORATORY, INC.
tion against Cupler, the only named union adherent
still employed by Respondent.
It does not appear from all the circumstances that charg-
ing Cupler with vacation time was calculated to discourage
him from participating in a Board hearing or was in repn-
sal for his having done so. In view of the above-mentioned
uniformity of the treatment of General Counsel's witness-
es, it does not appear appropriate to infer that the action
taken with respect to Cupler was in reprisal for his testify-
ing in the first hearing. Moreover, I do not think that that
action was "inherently destructive of employee interests."
It is noted that Cupler had previously elected to take pay-
ment for his accumulated leave acquired before WCL's
takeover of the laboratory and during the fall of 1974 had
been granted by Williamson at least 12 single days of leave
of absence to permit him to go hunting on Wednesdays. It
would appear that in view of this fact it would be appropri-
ate to assume that Cupler could reasonably have expected
similar treatment in the future. In any event, I cannot as-
sume that, had Cupler made a request for leave without
pay upon the basis that it was necessary to comply with a
subpena, it would not have been granted. True, Williamson
denied Cupler's request of March 28, but there is no show-
ing, and I am not persuaded, that Williamson was aware of
the fact that Cupler's presence at the hearing was required
by subpena. Rather, as above indicated, it appears from
Williamson's second reason for his refusal that he did not
know that Cupler was required to remain at the hearing
but believed that he was available for duty at the laborato-
ry. The fact that Respondent paid employees for the days
that they were required to testify instead of making them
take leave without pay indicates a willingness to cooperate
with, rather than to obstruct, the Board's proceedings.
In all the circumstances, I am of the opinion that Gener-
al Counsel has failed to prove by a preponderance of the
evidence the allegation in paragraph IX of the second com-
plaint.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The unfair labor practices of the Respondent set forth in
section III, above, occurring in connection with its opera-
tions set forth in section 1, above, have a close, intimate,
and substantial relationship to trade, traffic, and com-
merce among the several States and tend to lead to labor
disputes burdening and obstructing commerce and the free
flow thereof.
V. THE REMEDY
It will be recommended that the Respondent be ordered
to cease and desist from engaging in the unfair labor prac-
tices found herein and take certain affirmative action, as
provided in the recommended Order below, designed to
effectuate the policies of the Act.
It having been found that Monte Young was unlawfully
discharged on October 28, 1974, it will be recommended
that Respondent be ordered to offer him immediate and
full reinstatement to his former fob or, if his fob no longer
exists, to a substantially equivalent position, without preju-
753
dice to his seniority or other rights and privileges. It will be
further recommended that Respondent be ordered to reim-
burse him for any loss of pay he may have suffered as a
result of its discriminatory action against him in the man-
ner set forth in F. W. Woolworth Company, 90 NLRB 289,
291-293 (1950), together with 6-percent interest thereon in
accordance with Isis Plumbing & Heating Co., 138 NLRB
716 (1962).
It will be further recommended that Respondent be re-
quired to expunge from the personnel records of Monte
Young, Thomas Gillespie, and James Cupler the evalua-
tions it issued to them on September 26, 1974 (Young and
Gillespie) and October 28, 1974 (Cupler).
Upon the basis of the foregoing findings of fact and
upon the entire record in this proceeding, I make the fol-
lowing:
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union 26 is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act by the
following conduct:
(a) On June 27, 1974, Respondent unlawfully interrogat-
ed employees about their union sympathy and that of their
fellow employees (par. VI(a) of the first complaint).
(b) On June 27, 1974, Respondent unlawfully threat-
ened employees that any attempt on the part of employees
to obtain a bargaining representative would be futile, and
impliedly threatened an employee about his job security
should he adhere to the Union (par. VI(b) of the first com-
plaint).
(c) On June 27, 1974, Respondent unlawfully solicited
grievances from its employees and promised correction
thereof in order to undermine adherence to the Union (par.
VI(c) of the first complaint).
(d) Respondent unlawfully attempted to cause Roseville
Community Hospital to terminate Geraldine Mastin, or
otherwise discipline her, for testifying for the General
Counsel in the first hearing in support of General
Counsel's contentions regarding Monte Young (par. VI of
the second complaint).
4. Respondent violated Section 8(a)(3) and (1) of the
Act by the following conduct:
(a) By issuing poor work evaluations to Monte Young
and Thomas Gillespie on September 26, 1974, and to
James Cupler on October 28, 1974 (pars. IX(a), (b), and (c)
of the first complaint).
(b) By constructively discharging Monte Young on Oc-
tober 28, 1974 (par. XI of the first complaint).
5. General Counsel has failed to prove by a preponder-
ance of the evidence the following allegations:
(a) That on July 2, 1974, Respondent violated Section
8(a)(1) of the Act by unlawfully threatening employees
26
United Association of Clinical Laboratory Technologists of Northern
California, the same Association affiliated with Service Employees Interna-
tional Union Local 22, AFL-CIO, and the latter organization are all re-
ferred to throughout the proceeding and this Decision as the Union
754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with economic reprisals (a portion of the allegation in par.
VI(b) of the first complaint).
(b) That Respondent violated Section 8(a)(1) of the Act
by soliciting the employees to bargain through their Asso-
ciation and disaffiliate itself from Local 22 (par. VI(d) of
the first complaint).
(c) That Respondent violated Section 8(a)(3) and (1) of
the Act by issuing written reprimands to Randolph and
Cupler (par. VII of the first complaint).
(d) That Respondent violated Section 8(a)(3) or (1) of
the Act by terminating Cupler's overtime (par. VIII of the
first complaint).
(e) That Respondent violated Section 8(a)(3) and (1) of
the Act by terminating Thomas Gillespie on or about Oc-
tober 3, 1974 (par. X of the first complaint).
(f) That Respondent violated Section 8(a)(3) and (1) of
the Act by issuing poor work evaluations to Isabel Hernan-
dez on October 10, 1974, and February 5, 1975 (par. IX(d)
of the first complaint).
(g) That Respondent violated "Section 8(a)(3) and/or
(4) and (1)" of the Act by transferring Cupler and Ran-
dolph to the night shift (par. VII of the second complaint).
(h) That Respondent violated "Section 8(a)(3) and/or
(4) and (1)" of the Act by terminating Isabel Hernandez on
or about April 7, 1975 (par. VIII of the second complaint).
(i) That Respondent violated "Section 8(a)(3) and/or (4)
and (1) of the Act" by charging James Cupler for vacation
time (instead of giving him leave without pay) for the time
he was away from work attending the first hearing.
Upon the foregoing findings of fact, conclusions of law,
and upon the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER27
Respondent, Western Clinical Laboratory, Inc., Rose-
ville, California, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Unlawfully interrogating its employees about their
union sympathy and that of their fellow employees.
(b) Unlawfully threatening employees that any attempt
on their part to obtain union represenation would be futile.
(c) Unlawfully threatening the job security of employees
because of their adherence to the Union.
(d) Unlawfully soliciting grievances from employees and
promising to correct them in order to undermine their
adherence to the Union.
(e) Unlawfully attempting to cause another employer to
terminate or otherwise discipline a person in its employ
because he or she testified on behalf of the General Coun-
sel in a Board proceeding.
(f) Discouraging membership in the Union, or any other
labor organization, by discrimmatorily giving employees
poor job evaluations.
(g) Discouraging membership in the Union, or any
other labor organization, by discriminating against em-
ployees in regard to hire or tenure of employment or any
term or condition thereof.
(h) In any other manner interfering with, restraining, or
coercing employees in the exercise of rights under Section 7
of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Offer Monte Young immediate and full reinstate-
ment to his former job or, if his job no longer exists, to a
substantially equivalent position, without prejudice to his
seniority or other rights and privileges, and make him
whole for any loss of pay suffered by him by reason of his
discriminatory discharge in the manner set forth in the sec-
tion heremabove entitled "The Remedy."
(b) Expunge from the personnel records of Monte
Young and Thomas Gillespie the discriminatory poor job
evaluations issued to them on September 26, 1974, and
from the personnel records of James Cupler the discrimina-
tory poor job evaluation issued to him on October 28, 1974.
(c) Upon request, make available to the Board or its
agents, for examination and copying, all payroll and other
records containing information concerning its backpay
obligation under this recommended Order.
(d) Post at its place of business in Roseville, California,
copies of the attached notice marked "Appendix." 28 Cop-
ies of said notice, on forms provided by the Regional Di-
rector for Region 20, after being duly signed by an author-
ized representative of Respondent, shall be posted by
Respondent immediately upon receipt thereof and be
maintained by it for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to em-
ployees 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.
(e) Notify the Regional Director for Region 20, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the allegations in the consoli-
dated complaints which have been found hereinabove not
to have been sustained, should be, and are, hereby dis-
missed, including the allegations of the discriminatory dis-
charges of Thomas Gillespie and Isabel Hernandez.
27 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec
102 48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes
28 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 "