Western Health Clinics

National Labor Relations Board - Board Decisions

Oct 10, 1991

305 N.L.R.B. 400 (N.L.R.B. 1991)

400
305 NLRB No. 39
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule and ad-
ministrative law judge’s credibility resolution unless the clear pre-
ponderance of all the relevant evidence convinces us that they are
incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
188 F.2d 362 (3d Cir. 1951). We have carefully examined the record
and find no basis for reversing the findings.
In the absence of exceptions we adopt, pro forma, the judge’s
findings that the challenges to the ballots cast by Peggy Johnson and
Pat James be overruled.
2 In rejecting the Respondent’s exceptions to the judge’s findings
that certain interrogations of employees Decker and James violated
Sec. 8(a)(1) of the Act, we rely on the totality of circumstances sur-
rounding the interrogations. See Sunnyvale Medical Clinic, 277
NLRB 1217 (1985) (indicia of coercion include inquiries about other
employees’ union activities and context of employer hostility to
Union).
1 All dates are in 1990 unless stated otherwise.
2 The General Counsel did not file a brief.
Western Health Clinics and Service Employees
International Union, Local No. 49, AFL–CIO.
Cases 36–CA–6339 and 36–RC–5233
October 10, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On June 12, 1991, Administrative Law Judge James
S. Jenson issued the attached decision. The Respondent
filed exceptions and a supporting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions2 and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Western Health Clinics,
Portland and Salem, Oregon, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in
the Order.
IT IS FURTHER ORDERED that the Regional Director
for Region 36 shall, within 10 days from the date of
this Decision and Order, open and count the ballots of
Nancy Schneider, Judy Decker, Peggy Johnson, and
Pat James, and prepare and serve on the parties a re-
vised tally of ballots. Thereafter, the Regional Director
shall issue the appropriate certification.
Dale Cubbison, Esq., for the General Counsel.
Rick Quintero, Ph.D, and Mintra Sharma, of San Pedro,
California, for the Respondent.
Rick Ball, of Portland, Oregon, for the Union.
DECISION
STATEMENT OF THE CASE
JAMES S. JENSON, Administrative Law Judge. I heard these
matters in Portland, Oregon, on June 26 and 27, 1990.1 The
charge in Case 36–CA–6339 was filed on April 9, amended
on April 13, and the complaint issued on May 25. On the
latter date, the Acting Regional Director for Region 19 also
issued a report and recommendation on challenged ballot and
notice of hearing on remaining challenged ballots in Case
36–RC–5233, and also an order consolidating the two cases
for hearing. The complaint alleges a variety of conduct vio-
lating Section 8(a)(1) of the Act, and that Respondent termi-
nated employees Nancy Schneider and Judy Decker in viola-
tion of Section 8(a)(3) of the Act. The Respondent denies it
committed any unfair labor practices, and claims that Schnei-
der was terminated for cause and Decker laid off for non-
discriminatory reasons and later recalled. The ballots of
Schneider, Decker, Peggy Johnson, and Pat James were chal-
lenged by the Employer in the election held on May 4, on
the ground they were no longer employees.
All parties were given full opportunity to appear, to intro-
duce evidence, examine and cross-examine witnesses, to
argue orally and to file briefs. The General Counsel and Re-
spondent argued orally and the Respondent also filed a brief,
all of which have been carefully considered.2
On the entire record in the matters, and from my observa-
tion of the witnesses and their demeanor, I make the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
Western Health Clinics, a California corporation with its
principal office located in Harbor City, California, and with
facilities located in Portland and Salem, Oregon, is a health
care institution engaged in providing medical and psycho-
logical services to substance abusers. During the year pre-
ceding issuance of the complaint, its gross volume of busi-
ness exceeded $500,000 and it purchased and received goods
and materials within the State of Oregon valued in excess of
$50,000 directly from sources outside Oregon, or from sup-
pliers in Oregon which in turn obtained such goods and ma-
terials directly from sources outside Oregon. As the fore-
going complaint allegations are neither specifically denied
nor explained, in accordance with Section 102.20 of the
Board’s Rules and Regulations, it is found that the Respond-
ent is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act, and a health care
institution within the meaning of Section 2(14) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
In accordance with Section 102.20 of the Board’s Rules
and Regulations, it is further found that Service Employees
International Union, Local No. 49, AFL–CIO is a labor orga-
nization within the meaning of Section 2(5) of the Act.
401WESTERN HEALTH CLINICS
3 Respondent apparently operates other clinics not involved in this
proceeding.
4 The unit specified in the stipulated election agreement in Case
36–RC–5233 and herein found appropriate as alleged in par. 5 of the
complaint consists of:
All employees, including Front Office Managers, Nurse Coun-
selors, Dispensing Nurses, Counselors, Part-Time Front Office,
employed by the Employer at its facilities in the Portland Metro-
politan area and the Salem, Oregon area; but excluding all client
Services Managers, Medical Services Coordinator, RN’s, Doc-
tors, Regional Director, Administrator, Office Manager Coordi-
nator, Executive Director, professional employees, guards and
supervisors as defined in the Act.
III. THE ISSUES
The complaint alleges in substance:
(1) That Mintra Sharma, Respondent’s administrator, inter-
rogated employees, threatened them with discipline and un-
employment if they continued to engage in concerted activi-
ties, ordered them to write her letters concerning their union
sympathies, created the impression of surveillance, and ques-
tioned employees as to how they would vote in a union elec-
tion.
(2) That Rick Quintero, Respondent’s executive director,
ordered closer scrutiny of an employee in retaliation for her
union activities, interrogated employees concerning their
union activities, questioned them how they would vote and
threatened more onerous conditions if they selected the
Union as their bargaining agent, promised them benefits if
they rejected the Union, and threatened them with discharge
in retaliation for their union activities.
(3) That Calvin Hightower, Respondent’s executive direc-
tor, promised employees benefits if they rejected the Union,
threatened them with unemployment if they selected the
Union, and through Office Manager Coordinator Kathy
Wheeland, threatened to shut down or sell Respondent’s clin-
ics before it would negotiate with a union.
(4) That Respondent instituted new disciplinary procedures
in retaliation for its employees’ union activities.
(5) That Respondent discharged Nancy Schneider and Judy
Decker because they supported the Union and engaged in
concerted activities.
A resolution of the 8(a)(3) allegations will dispose of the
issues regarding the challenged ballots of Nancy Schneider
and Judy Decker, leaving for independent consideration the
challenges to the ballots of Peggy Johnson and Pat James.
Credibility, as in virtually all 8(a)(1) and (3) cases, is a
critical issue, the record revealing considerable conflict be-
tween the General Counsel’s and Respondent’s witnesses. In
determining whose testimony is the more credible, I have
considered several factors including the demeanor of the wit-
nesses as they were testifying, their ability to recall past
events, the consistency or inconsistency of their testimony
when it is considered in the context of other testimony, docu-
mentary evidence, and matters not in dispute. In considering
the conflicts in the testimony of witnesses, I have considered
which version appears to be more logical in the cir-
cumstances, the various positions occupied by the witnesses
and their possible bias and/or interest in the outcome. With
regard to the ability of a witness to recall past events, con-
sideration has been given to whether the witness’ answers to
certain questions were in response to suggestive or leading
questions asked on direct examination. (See F.R.Evid.
611(c).) Further, to the extent I credit a witness only in part,
I do so upon the evidentiary rule that it is not uncommon
‘‘to believe some and not all of a witness’ testimony.’’
NLRB v. Universal Camera Corp., 179 F.2d 749, 754 (2d
Cir. 1950).
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Setting
The Respondent operates three methadone clinics in Port-
land and one in Salem, Oregon.3 Mintra Sharma, whose of-
fice is in Harbor City, California, is the administrator for all
of the clinics. She is in charge of the receivables, payables,
payroll, and makes all contractual arrangements for the clin-
ics. As she physically visits them but two, three, or four
times a year, she relies to a great extent on the front office
managers.4 Dr. Rick Quintero, Mintra Sharma’s husband, is
Respondent’s executive director. He described his function as
being ‘‘certain that the clinics are operating in compliance
with applicable federal regulations, state regulations, that the
quality of the services are at a level which is therapeutic and
that the clients are being treated fairly and well and to be
certain as much as possible that all job functions are per-
forming well.’’ Calvin Hightower is Respondent’s regional
director. He visits each of the clinics at least once a week.
One of his functions is to review the ‘‘owing list’’ (a listing
of the amount each client is required to pay for treatment)
with the office manager every week and to approve or dis-
approve arrangements made for payment, including recom-
mending to the medical director placing the client on a detox
program for nonpayment. In addition to a salary, he receives
a specified amount per client per month. Thus, it is seen that
it behooves him to see that client fees are paid. Christy
Wheeland is the office manager coordinator and works in the
Southeast Portland clinic. Paula Forbes is client services
manager, dispenser coordinator, and medical service coordi-
nator. She is also a counsellor at the Beaverton clinic. Each
of the foregoing is alleged to be and is a supervisor of Re-
spondent within the meaning of Section 2(11) of the Act and
its agent within the meaning of Section 2(13) of the Act.
Sandra Freeland is the client services manager at the South-
east clinic. While her status as a supervisor or agent was not
alleged, the client service managers are specifically excluded
from the election unit. She impressed me as being evasive
throughout the General Counsel’s cross-examination. Since
May 1990, Wendy Kidder has been administrative assistant
in the Northeast Portland clinic. From the description of her
duties prior to that, it appears she had been a front office
manager. Her unit inclusion or exclusion was not established.
All of the foregoing testified for the Respondent.
Testifying on behalf of the General Counsel were Nancy
Schneider, an alleged discriminatee who was the office man-
ager in the Salem clinic; Judy Decker, also an alleged
discriminatee, who was hired to do audit work, later changed
to quality control, and also filled in as office manager in the
Southeast clinic in Christy Wheeland’s absence; Kathy James
who, until her termination on April 13, was the nurse dis-
penser and counsellor at the Beaverton and Northeast clinics,
and also the wife of Pat James, also testifying, who worked
every other weekend in April and May as receptionist at the
Beaverton clinic and whose ballot was challenged by the Re-
402 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 Employees at the Southeast clinic signed a copy of Schneider’s
response after the original had been sent to Sharma.
spondent in the election; Kathy Buck, a nurse counsellor at
the Southeast clinic; Gloria Hernandez, the dispensary nurse
at the Salem clinic; Judy Ellis, an LPN and counsellor in the
Salem clinic; Peggy Johnson, a dispensary nurse at the
Southeast clinic whose ballot was challenged by Respondent
on the ground she was no longer an employee but whom Re-
spondent now claims was a supervisor; and Jay Lawshe, a
client services manager (a supervisory position) and nurse
counsellor who testified on rebuttal pursuant to subpoena.
B. Concerted Activities
Sometime in the fall of 1989, Hightower told employees
in the Salem clinic that he had negotiated with Sharma and
Dr. Quintero for pay for the Thanksgiving and Christmas
holidays for the employees, and that he was working on
other holidays. At a staff meeting in November before
Thanksgiving, the employees asked Dr. Quintero if it was
true that they were going to be paid for Thanksgiving, and
he responded in the negative and that a staff meeting wasn’t
the appropriate place to bring up the issue. He advised them
to get something together and submit it to him in writing for
consideration. Accordingly, Schneider typed up a benefit
package which Wheeland, the office manager coordinator in
the Southeast clinic in Portland, heard about, and sent her a
copy at her request. Wheeland told Hightower and Freeland
about it and after showing it to employees in all the Portland
clinics, who concurred in its contents, returned it to Schnei-
der. Schneider retyped the document, and on January 23
mailed it to Sharma. The document, Respondent’s Exhibit 5,
to ‘‘Mintra Sharma, Rick Quintero, Calvin Hightower’’ from
‘‘ALL WESTERN HEALTH STAFF,’’ is attached hereto as
Appendix A. On Thursday, January 25, Hightower met with
the Salem clinic employees regarding the document. Schnei-
der testified that during discussion of ways of getting Sharma
to negotiate with them, unionization, a strike and contacting
the media regarding Respondent’s business practices were
mentioned. Hightower asked the employees to ‘‘hold off’’
since he was trying to negotiate with Sharma and Dr.
Quintero and stated ‘‘they would rather see them closed than
see a union come in.’’ Without eliciting details of the con-
versation, Hightower admitted he had discussed closing the
Salem clinic because he didn’t think Respondent was ‘‘that
tied into Oregon.’’ He claimed he was merely rendering an
opinion. While claiming he had no knowledge of employee
union activity until the instant charge was filed in April, he
admitted on cross-examination that he may have had a con-
versation with Sharma about employees going to the Union
prior to the charge being filed. I believe he did and that from
at least January 25, the Respondent had knowledge of union
activity in addition to the benefit package letter which in
itself was a protected concerted activity. Coming from some-
one in Hightower’s position, telling employees that the Re-
spondent would rather close than see a union come in clearly
restrains and coerces employees and violates Section 8(a)(1)
of the Act, as alleged in paragraph 6 of the complaint. On
Saturday, January 27, Sharma called Schneider at home. Ac-
cording to Schneider, whom I credit, the call lasted about
half an hour. She testified as follows regarding the conversa-
tion:
Well, she [Sharma] said that she was very upset
about my letter, and I explained to her that it was not
my letter but an all-staff memo and explained to her the
process that we had gone through, that it had been sent
to other clinics, that there were other staff involved be-
sides myself, and that once we had all agreed on what
we wanted, then it was sent to her, and she said that
she had talked with other staff, and that they were—
they didn’t want anything to do with it. They denied
any knowledge of ever seeing it, and that they didn’t
want to go along with it and didn’t want any part of
it. I asked her what staff she had talked to, and she
evaded the question, didn’t tell me who she’d talked to,
so I have no idea who she talked to.
We went on and discussed the people that were in-
volved. I think I brought up Cristy’s name, that she had
presented it to staff up in Portland and that they had
seen it, and she continued throughout the whole con-
versation to refer to the memo as my letter, my prob-
lem, my benefits, you know. During the conversation,
you know, she was saying that she was upset, and she
had been up till three in the morning writing a response
letter to me, and that I would be getting that shortly in
the mail, but she wanted to discuss it with me person-
ally. She said in that response she had said that she
would not be giving any benefits, that there would be
nothing forthcoming, and, you know, that was the end
[of] it, that there would be nothing.
She also told me in that conversation that in Cali-
fornia she had had trouble with her clinic. I believe it
was the Harbor City Clinic where the staff were really
upset about benefits, and she had fired everybody with-
in that clinic and brought in a registry, and that they
worked for about a month, and then everything
smoothed out and everything was wonderful again, that
she did not owe people anything, that she was not mak-
ing them work for her, and that if they didn’t like what
Western Health had to offer, they were free to go work
somewhere else.
The implied threat to terminate the employees involved in
the benefit package violates Section 8(a)(1) as alleged in
paragraph 7(a) of the complaint.
On Monday, January 29, Schneider talked to Wheeland in
the Southeast clinic by phone. According to Schneider,
whom I credit, Wheeland predicted that the employees would
be fired because of the memo. Schneider said she didn’t
think so and that she was going to send Sharma another let-
ter since Sharma insisted the January 23 ‘‘benefit package’’
was from Schneider alone instead of the rest of the staff.
Sharma responded to the January 23 letter with General
Counsel’s Exhibit 3 which is dated January 26, addressed to
Schneider ‘‘Re: Your letter dated January 23, 1990,’’ and at-
tached hereto as Appendix B. Schneider responded with Gen-
eral Counsel’s Exhibit 4 which is dated February 9, and at-
tached hereto as Appendix C.5 The final paragraph is particu-
larly noteworthy and bears repeating here:
Your response indicates you are unwilling to even
consider a better benefit package for your employees
now or in the immediate future. You state ‘‘no changes
will occur immediately or in the near future.’’ I submit
403WESTERN HEALTH CLINICS
6 Hightower admitted he cautioned her repeatedly about being a
spokesperson for the staff and that he told her ‘‘If you’re going to
be involved in what your being involved in, make sure you cover
your ass and you’re doing your work.’’
7 Schneider’s testimony was not refuted and is credited.
8 Beginning on p. 24 of the transcript.
to you the very real possibility that changes will indeed
occur at Western Health Services in the effect that staff
are so frustrated with management’s lack of under-
standing of their need for better benefits and the unwill-
ingness on your part to address these issues that their
only alternative is to seek help from an outside source
to act as mediator on their behalf. Please understand
staff at ‘‘all’’ of Western Health Services are behind
this proposal and your lack of an All Staff response has
been noted by them. I am requesting you send such a
memo addressed to each staff person or at least a memo
to each clinic to clearly inform them of your position
in this matter.
The record shows that, in late January, Schneider con-
tacted a representative of the Oregon Public Employees
Union, to which she had formerly belonged, and in February
she contacted a representative of the Charging Union, from
whom she obtained authorization cards which she passed out
to Salem clinic personnel and mailed to an employee of the
Southeast clinic in Portland for distribution among the em-
ployees of the clinics there. Schneider signed a card on Feb-
ruary 13.
At 7 a.m., February 16, Schneider received a telephone
call at the Salem clinic from Sharma accusing her of being
behind in her ‘‘owing list’’ and stating that Hightower didn’t
have any idea that so many people were behind in their pay-
ments. Schneider responded she couldn’t understand High-
tower making that statement since she sat down with him
every week and went through the ‘‘owing list.’’ She re-
minded Sharma of a conversation in January following an
audit Sharma had done which showed that a lot of people
had fallen behind in payments because of Christmas holidays
throughout the whole Western Health system and that they
were to ‘‘work with them until they caught up.’’ Schneider
testified that some of the people had been behind for months,
some longer than she had worked there and that she would
‘‘detox’’ them if Sharma wanted her to. Sharma’s response
was no, because they wouldn’t recover their money if the
people were ‘‘detoxed,’’ or put off the program. Contrary to
her initial statement that she didn’t want to talk about the
benefit package, Sharma said she didn’t understand how the
employees could be asking for more benefits when they
weren’t doing their jobs, and proceeded to criticize the work
of all of the Salem employees. She accused Schneider of
bothering employees both at home and at work regarding the
‘‘benefit package,’’ which Schneider denied. Sharma also
questioned her about an employee meeting scheduled for the
following Saturday, asking if the Union was going to be
present and stating it was ‘‘inappropriate’’ for them to meet
without either her or Dr. Quintero being present. Schneider
responded that it was ‘‘still up in the air’’ whether a union
representative would attend, and that the employees just
wanted to meet and discuss what they wanted, to which
Sharma responded it was still inappropriate to meet without
her. Hightower was standing nearby during the latter part of
the conversation. Upon its completion, Schneider told him
Sharma said he hadn’t seen her ‘‘owing list’’ and he re-
sponded he didn’t know where she got that from. They dis-
cussed the meeting scheduled for February 24, and he asked
who would be there, which she declined to tell. She testified
he told her that he had seen employees involved in that type
of activity before, and that if she was a spokesperson for the
staff that she needed to watch her back because she might
not be able to work in ‘‘this field’’ again because of her ac-
tivity, ‘‘you need to be very careful, because I don’t want
to lose my best employee in the system.’’6 The two then
went through Schneider’s ‘‘owing list’’ and Hightower com-
mented that while her payment arrangements were different
than in other clinics, he let her do things differently because
she was more qualified than the other office managers. It is
clear that Hightower did not berate her over the condition of
the owing list on February 16.
C. Schneider’s Termination
The record shows that an ad appeared in the Salem news-
paper on Sunday, February 18, for an office manager for the
Salem clinic. Schneider testified without contradiction that
the deadline for placing the ad would have been 3 p.m. on
Friday, February 16, the day the above conversations with
Sharma and Hightower took place. Thus, it is clear the deci-
sion to terminate her was made prior to Hightower’s check-
ing the owing list on that date.
On Monday, February 19, Schneider was called into an of-
fice by Dr. Quintero and told that she was terminated be-
cause of her ‘‘owing list.’’ Asked how that could be since
her ‘‘owing list’’ had been approved by Hightower on a
weekly basis ‘‘and if that was the case, why wasn’t Calvin
[Hightower] the one who was getting his check. It was his
responsibility to insure that I was doing my job, that they
had never said that I was doing it inappropriately,’’ Dr.
Quintero responded ‘‘it was over my owing list, that that was
the way it was.’’7 Dr. Quintero admitted on cross-examina-
tion, however, that he hadn’t seen her February owing list
prior to deciding to terminate her. She testified that High-
tower had told her and several other employees that nobody
could be fired without his approval, and ‘‘unless I’m telling
you you’re doing a bad job, don’t worry about it.’’ High-
tower testified he didn’t recommend her discharge. He ac-
knowledged that he was in a position to observe her work
more than anyone else and that he had told Schneider and
the other employees that she was his best office manager.
The record shows that at the time she was terminated Schnei-
der’s ‘‘owing list’’ totaled about $8700. Wheeland, who is
a supervisor and testified as a witness for Respondent, ac-
knowledged on cross-examination that her owing list at the
Southeast clinic was $8500 at the time Schneider was termi-
nated and that at the beginning of the month it could be be-
tween $10,000 and $12,000. She claimed it should be down
to about $5000 on the 20th of the month.
It became apparent during Schneider’s cross-examination
that Respondent was claiming Schneider was also deficient
in respects other than her owing list. In response to my ques-
tion, Sharma enumerated the following additional reasons for
her termination:8
1. Failure to adhere to administrative policies that she had
agreed to, specifically ‘‘her continued defiance to enter pa-
404 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 Sharma claimed she granted the raise out of the ‘‘goodness of
my heart.’’
10 The meeting had originally been scheduled for Decker’s house,
but after Schneider’s discharge was changed to a restaurant.
tients into contracts to pay fees, inconsistent with the late fee
policy.’’
2. Contracting with outside vendors without administrative
approval (involving service on a copy machine).
3. Continually making problems with the landlord resulting
in an eviction notice due to her verbal abuse.
4. Failure to maintain documents, e.g., the urinalysis track-
ing list, phone log, stamp log, copy paper log, the time
schedule for herself and other employees.
5. Continued unexcused absences.
6. Causing stress on other employees by leaving the job
place and asking other employees to take her place in an-
swering the telephones and collecting fees.
7. Becoming belligerent with Sharma on the phone on
February 16 and stating she had no intention of imple-
menting any of Respondent’s administrative policies.
8. Not maintaining the office properly, leaving files unat-
tended on top of filing cabinets, inability to file and docu-
ment things, and failure to send items to corporate office for
audit purposes.
9. Causing problems in the office so that Respondent was
unable to collect and pay bills timely.
10. Inconsistent with collections, playing favoritism to cer-
tain clients, doing counseling when it wasn’t her job.
11. Filed a workman’s compensation claim for an old in-
jury Sharma didn’t know about.
Sharma claimed that Schneider’s work deficiencies started
in August 1989, from which time on she was not a good em-
ployee. She testified that while they had considered termi-
nating Schneider by the end of December 1989, or by the
first or second of January, the decision to do so was not
made until February 12 or 13.
In an effort to prove that Schneider was an undesirable
employee, it was shown that Schneider had written a per-
sonal check which bounced which she had apparently cashed
with company funds in her possession. Schneider testified
without contradiction that she made the check good and re-
imbursed Respondent for the bank’s returned check charge.
This incident apparently prompted issuance of a June 7, 1989
memorandum to the staff that utilizing company funds to
cash checks would be grounds for immediate dismissal.
There is no evidence to indicate Schneider ever did it again.
Respondent claimed that an undated invoice for mainte-
nance on a copy machine, Respondent’s Exhibit 2, which
was signed by Schneider, upon completion of the work, con-
stituted a contract to service the machine and extended the
lease for another 6 months and that Schneider thereby ex-
ceeded her authority. The original lease agreement was exe-
cuted by Sharma and is in Respondent’s possession. Its pro-
duction would have cleared up any question regarding main-
tenance and term of the agreement. Respondent’s failure to
produce it leads me to conclude its production would not
have been favorable to its argument. In any event, the
amount to be paid on the invoice, $152.78, was for the num-
ber of copies that had been used and was not a contractual
commitment by Schneider as claimed. Appearing at the bot-
tom of Respondent’s Exhibit 2 is a typed note to Schneider
dated February 15, admonishing her for entering into an
agreement on behalf of Respondent. Schneider testified that
she never saw the note prior to the hearing. I credit her de-
nial. Having carefully examined the invoice and the testi-
mony concerning the copy machine, it seems apparent to me
that Sharma added this self-serving note in an apparent effort
to give credence to Respondent’s argument, which I find
unpersuasive. Sharma’s testimony regarding Schneider’s
other claimed work deficiencies was also unpersuasive. The
record shows that Hightower, who visited the Salem clinic
twice a week and who reviewed Schneider’s work regularly,
considered Schneider to be Respondent’s best office man-
ager, a viewpoint which he shared with other employees. It
wasn’t his idea to terminate her. He testified she was a very
dedicated employee, putting in more working hours than any-
one else and that she was not paid for overtime in excess
of 40 hours or for working on Saturday. Further, the record
shows that in August 1989, Schneider received a 50-cent-an-
hour wage increase, and in November she and Sharma
agreed on an additional pay raise of 25 cents per hour plus
medical and dental insurance for which Respondent was to
pay 100 percent of the premium. A disagreement apparently
later arose in January over the effective date of the insur-
ance, January 1 or February 1, and since Schneider’s hus-
band has just secured a position with benefits covering
Schneider, she and Sharma negotiated a 50-cent-per-hour
raise in lieu of the insurance.9 Granting the raises severely
undercuts Sharma’s claim that she had been dissatisfied with
Schneider since mid-1989.
D. Decker’s ‘‘Layoff’’
Decker was hired November 13, 1989, to do dispensing
and clinical auditing and intake in each of the clinics. Dr.
Quintero testified that he ‘‘wanted an agent . . . who was
not a clinical person to audit . . . a tunnel vision person who
. . . would make sure that each nurse put the correct date
in the right place with the right numbers adding up to have
a reconciliation of this liquid medication that we have to
track.’’ She was to go to each of the Portland clinics twice
a week and to Salem once a week. On Sunday, March 25,
she received a call at home from Dr. Quintero who stated he
would have to let her go since he couldn’t see paying for
a full-time auditor and stating there might be a job open in
the Beaverton clinic; depending on whether another em-
ployee who was on short hours but wanted long hours, con-
tinued. While that job did not materialize, Decker later filled
in at the Southeast clinic for Wheeland, who was out sick.
About a month prior to the instant hearing, she started work-
ing two 6-hour days per week in the Northeast clinic.
Decker, who impressed me with her forthrightness, testi-
fied that at the end of February, while she was filling in for
Wheeland at the Southeast clinic, she received a telephone
call from Sharma who stated she had heard Decker was the
union instigator in the Southeast clinic, which Decker denied,
and that a meeting was going to be held at Decker’s house
and asked why she and Dr. Quintero had not been invited.
The record shows the petition in Case 36–RC–5233 was filed
on February 28. Decker responded that it was a meeting for
the employees to air things out and the employees didn’t feel
they could talk openly before her and her husband.10 Sharma
also asked what she thought about the Union and if she
would vote for it. According to Decker, she told Sharma it
405WESTERN HEALTH CLINICS
was none of her business and didn’t want to discuss it. Deck-
er testified that about this time, while working at the South-
east clinic, Dr. Quintero asked what she thought about the
Union and how she was going to vote, which she declined
to talk about and told him she didn’t appreciate Sharma call-
ing and accusing her of being the union instigator when she
wasn’t. He responded Sharma was just fishing around to get
information. According to Decker, 3 days later Sharma called
again and stated she hadn’t meant to upset her, but they
didn’t want the Union and wanted to stop it. Decker re-
sponded she didn’t like being accused of something she
didn’t do. Sharma told Decker to let her know if she heard
anything. Sharma, whom I found to be lacking in credibility,
denied ever speaking to Decker ‘‘about her union involve-
ment.’’ I find that the conversations in fact took place as
Decker testified and that Sharma thereby created the impres-
sion of surveillance of union activities, and unlawfully ques-
tioned Decker about union activities and how she would
vote, all as alleged in paragraph 7(c) of the complaint.
Decker testified that a few days later Sharma called again
and told her that she should only be working 6 instead of
8 hours a day. Decker responded that she had been hired to
work full time and that she had a paper so stating which bore
both Dr. Quintero’s and Hightower’s signatures. Her hours
were not reduced at that time. In early March, Dr. Quintero
visited the Salem clinic and talked to her and employee
Tomoko Gersch. She testified:
[H]e asked if we knew anything about the rumor
going around that he was going to sell or close down
the clinics if the union got in, and I told him, yes, I
heard it from Cristy Wheeland, the office manager-co-
ordinator, and he wanted to tell me that it wasn’t true
and that he never said that. I told him I didn’t think so,
because that was where his money was coming from,
and he smiled, and then he asked me again about the
union, and I told him I didn’t want to talk about it.
Wheeland testified that she had received a phone call from
Hightower who was ‘‘obviously distraught,’’ informing her
that Dr. Quintero ‘‘had indicated that he would just as soon
sell the clinics or see them closed down than to see them
. . . go union,’’ and that she should tell the other employees,
which she did. Wheeland’s testimony corroborates that of
Decker and Kathy Buck. Hightower called her back later and
told her to be careful how she handled it and it wasn’t in-
tended as a threat but that he felt the employees should be
aware of it.
A couple of weeks prior to her termination on March 31,
Dr. Quintero again asked Decker if she had heard anything
about the Union and how she would vote, which she de-
clined to talk about, and stated that ‘‘if the Union got in, our
little happy family would no longer exist.’’ The General
Counsel has proven paragraph 8(b) of the complaint.
The foregoing events cast a dark cloud over the reason Re-
spondent claims Decker was ‘‘laid off’’ or terminated. Dr.
Quintero testified she had been hired because he wanted
someone ‘‘who was not a clinical person to audit . . . a tun-
nel vision person.’’ to make sure the nurses’ records were
accurate, and to monitor both the Salem and Portland clinics.
As the reason for letting her go, however, he ‘‘wanted nurs-
ing personnel who were involved in that function on a daily
basis to do the audits in order to improve the quality of the
audits.’’
Discussion
Section 7 of the Act guarantees employees ‘‘the right to
self-organization, to form, join, or assist labor organizations,
to bargain collectively through representatives of their own
choosing and to engage in other concerted activities for the
purpose of collective bargaining.’’ (Emphasis added.) Section
8(a)(1) implements those guarantees by making it an unfair
labor practice for an employer ‘‘to interfere with, restrain or
coerce employees in the exercise of the rights guaranteed in
Section 7.’’ Section 8(a)(3) makes it an unfair labor practice
for an employer ‘‘by discrimination in regard to hire or ten-
ure of employment . . . discourage membership in any labor
organization.’’ Whether the discharge of an employee is un-
lawful depends on the employer’s motive, and since an em-
ployer will rarely concede that a discharge was prompted by
a discriminatory motive, the Board may infer an unlawful
motive from circumstantial evidence. Relevant circumstantial
evidence supporting an inference of unlawful motivation in-
cludes the failure of an employer’s testimony to withstand
scrutiny. Shattuck Denn Mining Corp. v. NLRB, 362 F.2d
466 (9th Cir. 1966). Such is the case here.
While the Respondent contends it did not have knowledge
of any union activity until the charge was filed, the record
evidence set forth above convinces me otherwise. But even
if the Respondent had in fact lacked knowledge of union in-
volvement, it was clearly aware through the January 23 ben-
efit package and the February 9 response to Sharma’s Janu-
ary 26 letter that the employees had acted together—in con-
cert—‘‘for the purpose of collective bargaining or other mu-
tual aid or protection.’’ Acting in concert for the improve-
ment of their working conditions prior to the advent of the
Union was as protected by the Act as their later union activ-
ity. The Respondent fails to perceive, it appears, that pro-
tected concerted activity does not necessarily include union
involvement.
As found, Respondent had knowledge of employees’ in-
volvement in bettering their working conditions by January
25, and that unionization, a strike, and contact with the
media were options which could be taken if Respondent re-
fused to cooperate. The record further shows that High-
tower’s response to their action was to say that Respondent
would rather close than see a union come in. On January 27,
Sharma attributed the origin of the benefit package to
Schneider and impliedly threatened to terminate everyone in-
volved as she had done at the Harbor City clinic. On January
29, Wheeland told Schneider that she thought the employees
would be fired because of the benefit package. Following
Sharma’s January 26 response to the first benefit package
proposal to the effect that ‘‘no changes would occur,’’
Schneider responded on February 9, concluding with the
statement that the ‘‘only alternative is to seek help from an
outside source.’’ Schneider contacted the Charging Union,
signed an authorization card and distributed others. In a tele-
phone call on February 16, Sharma accused Schneider of
being behind in her ‘‘owing list,’’ and criticized the work of
all of the Salem employees and stated she didn’t understand
how they could be asking for more benefits, and accused
Schneider of bothering employees at home regarding the ben-
efit package. Sharma also questioned her about an employee
406 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
meeting scheduled the following Saturday and stated it was
inappropriate for them to meet without her and her husband.
Hightower also questioned Schneider about the upcoming
meeting and cautioned her to be careful because he didn’t
want to lose his best employee. To reemphasize, this con-
versation occurred on February 16, 3 days prior to her dis-
charge. On the same day, Respondent placed an ad in news-
papers to fill Schneider’s position as office manager in
Salem. On February 19, she was terminated, ostensibly be-
cause she was behind in her ‘‘owing list.’’ The record shows
that at the time of her discharge, Wheeland’s owing list was
within $200 of Schneider’s. It is further clear that Hightower
had gone over her owing list on Friday, February 16, and
failed to criticize her for its condition. It is further admitted
that Dr. Quintero hadn’t seen the list prior to terminating her.
Hightower admitted he had told Schneider and other employ-
ees that she was his best office manager, and his testimony
attempting to back off from that position was feeble as were
Sharma’s attempts to portray her as a poor employee com-
mencing in August 1989. The quality of her work is better
characterized by Hightower’s testimony that she was a very
dedicated employee who put in more working hours than
anyone else, including overtime and Saturday work for which
she was not paid. The record makes it clear that her dedica-
tion and superior work were rewarded with raises in August
1989, when Sharma claimed her work deficiencies com-
menced, and again after the first of the year. In sum, I con-
clude and find that the reasons advanced by Respondent are
pretextual and that the real reason for Schneider’s discharge
was her engagement in protected concerted activities as al-
leged in paragraph 14 of the complaint.
The petition in Case 36–RC–5233 was filed on February
28, 9 days following Schneider’s unlawful termination. With
knowledge that the meeting was to be held at Decker’s
house, Sharma called Decker and accused her of being the
union instigator in the Southeast clinic, questioned why she
and her husband hadn’t been invited, and queried Decker
about the Union and her voter preference. Dr. Quintero also
asked her about her union feelings and voter preference.
Within a few days Sharma called her again and stated Re-
spondent didn’t want the Union and wanted to stop it, and
asked Decker to let her know if she heard anything.
Wheeland had spread the word that Respondent was going
to sell or close down if the Union got in. A couple of weeks
prior to her termination, Dr. Quintero again questioned her
about the Union and how she would vote, to which she de-
clined to respond. Dr. Quintero indicated ‘‘our little happy
family would no longer exist’’ if the Union got in. Thus, it
is seen that at the time of her termination on March 31,
Schneider, the spokesperson for the employees, had been un-
lawfully terminated for engaging in protected concerted ac-
tivities, the Union had filed a petition for an election, Sharma
had learned about a union meeting to be held at Decker’s
house and had questioned her about it and protested the fact
Sharma and her husband hadn’t been invited, both Sharma
and Dr. Quintero had asked how she would vote and that she
declined to say. Inasmuch as she declined to inform Re-
spondent that she would vote against the Union, it was prob-
able that Respondent concluded she was still a union sup-
porter and would vote for it. Thus, when she was terminated,
and presumably rendered ineligible to vote in the forth-
coming election, Respondent had rid itself of two known
union sympathizers. In this regard, it is noted that the Stipu-
lated Election Agreement had already been signed by Re-
spondent and approved by the Regional Director on March
30. Her later re-employment following the filing of the
charge in Case 36–CA–6339, was, in my view, meant to add
legitimacy to the ‘‘layoff’’ claim. I conclude, as in Schnei-
der’s case, that the reason Respondent gave for Dexter’s
‘‘layoff’’ was pretextual and that the real reason was its be-
lief that she was going to vote for the Union. Accordingly,
Respondent violated the Act as alleged in paragraph 14 of
the complaint.
E. Other 8(a)(1) Allegations
Paragraph 7(b) of the complaint alleges that on or about
March 1, Sharma ordered employees to write her letters con-
cerning their union sympathies and desires. Judy Ellis, an
LPN and counsellor in the Salem clinic testified that in late
March, Sally Sidaway, who succeeded Schneider as the of-
fice manager in the Salem clinic, told Gloria Hernandez,
Tomoko Gersch, and Jay Lawshe, who is the client services
manager and nurse counsellor, that Sharma had requested
that they write her a letter stating their feelings about the
Union. Her testimony was corroborated by Hernandez.
Gersch was not a witness, and while Lawshe was a witness
for the General Counsel on rebuttal, no questions were asked
of her regarding the conversation. Sidaway was not a wit-
ness, nor was it shown she was either a supervisor or agent
of Respondent. Sharma testified that Sidaway had told her
over the telephone 1 day that things were chaotic with people
asking her what was going on with the Union, and that she
told Sidaway to:
Just have them call me directly, or they can call the
union rep or whoever they want to, but they cannot ask
you or discuss union activities at work. At that time she
says well, what do I do when they come to me and ask
me these things, what Western Health is doing about it,
and I said well, they can write to me their concerns and
mail it to me, or they can telephonically communicate
with me, and that was where it was left with Sally
Sidaway.
The General Counsel has failed to prove by a preponder-
ance of the evidence the allegation in paragraph 7(b) of the
complaint.
Paragraph 8(a) alleges that on or about February 19, Dr.
Quintero ordered closer scrutiny of Kathy Buck’s work in re-
taliation for her union activities. Buck was a nurse counsellor
in the Southeast clinic. She testified that she signed an au-
thorization card about February 20 and tried to get others to
sign them. Decker testified that on February 19, she received
a telephone call at the Southeast clinic from Dr. Quintero in
Salem wherein he asked her to audit Buck’s files. She told
him that she had already audited them and he told her to do
it again, that it was top secret and he didn’t want anyone to
know what she was doing. Accordingly, she audited 12 of
Buck’s charts and left the results on Hightower’s desk. Based
on this evidence it is concluded the General Counsel has
failed to prove by a preponderance of the evidence the alle-
gation in paragraph 8(a) of the complaint.
Paragraph 8(c) alleges that on or about March 28, Dr.
Quintero interrogated employees and promised them benefits
if they rejected the Union. Buck testified that on Wednesday,
407WESTERN HEALTH CLINICS
11 Ellis testified that on the day before the May 4 election, Dr.
Quintero was in the Salem clinic and stated ‘‘[Y]ou’re going to vote
against the union, aren’t you,’’ and went on to state ‘‘We have this
benefit package for you if you don’t vote for the union. We’re work-
ing on it.’’
March 28, a weekly team meeting was held at the Southeast
clinic with Dr. Quintero, Hightower, and Wheeland. During
the meeting, according to Buck, Dr. Quintero asked what the
union dues were and what they expected from the Union.
Buck responded that he wasn’t supposed to be discussing the
Union with the employees, and Hightower stated that they
needed to talk to Dr. Quintero and that was the reason he
was there. After that, several employees spoke and Buck told
him that after Sharma’s letter saying there would be no bene-
fits now or in the future, that the employees knew they need-
ed outside help. Wheeland told him that Sharma had asked
the employees to write down why they wanted the Union and
what they expected from it. According to Buck, Dr. Quintero
‘‘said that he had a package, but he could not tell us about
it right now, because . . . of the union.11 While Respondent
contends Dr. Quintero’s statements were protected as free
speech under Section 8(c) of the Act, they were not denied.
Contrary to Respondent, it is found that Dr. Quintero en-
gaged in unlawful interrogation and impliedly promised em-
ployees unspecified benefits if they rejected the Union, all as
alleged in paragraph 8(c) of the complaint.
Paragraph 9(a) of the complaint alleges that on or about
March 21, Hightower promised employees benefits if they
rejected the Union and threatened them with unemployment
if they selected the Union. Buck testified without contradic-
tion that during a conversation on March 21, Hightower
asked why the employees hadn’t come to him if they wanted
benefits and that ‘‘the clinic could run without us, that if we
didn’t really like it here we could move on, that they could
hire [an] agency to dispense, and the clients could see a
counselor every 30 to 90 days. He said I know that you’re
professional and you deserve pay, but the corporation was
really quite small and couldn’t afford it . . . maybe he could
get some [benefits] for us, that we should . . . work with
him.’’ She responded that he had been there 3 years and
hadn’t gotten anything for the employees, to which he re-
plied ‘‘[P]eople come and go, and that’s just the way it
would be.’’ The General Counsel has proven paragraph 9(a)
of the complaint. Paragraph 9(b) alleges that on or about
March 23, Hightower threatened employees, through
Wheeland, to shut down or sell its clinics before it would ne-
gotiate with a union. Asked if she had ever told Decker and
Buck that the clinic would be closed, Wheeland testified:
One afternoon I received a phone call from Calvin
Hightower. He was at the Salem Clinic, and he was ob-
viously distraught. He informed me that he had re-
ceived a phone call—that he had conversed with Dr.
Quintero, and that he had indicated that he would just
as soon sell the clinics or see them closed down than
to see them go—or to close them down than to see
them go union, . . . and that I should let the other em-
ployees know this . . . [which] I did.
She testified Hightower called her back ‘‘and said you’ve got
to be careful how you handle this. It’s not intended to be a
threat. It’s simply information that I feel that the employees
should be aware of.’’ The General Counsel has proven para-
graph 9(b) of the complaint.
Paragraph 10(a) alleges that on or about March 29, Dr.
Quintero interrogated employees concerning their union ac-
tivity, and paragraph 10(b) alleges that on or about March
31, he threatened employees with discharge (to clean house)
in retaliation for their union activities. Kathy James testified
that on Friday, March 30, Dr. Quintero came into her office
and, knowing she had worked at Kaiser and been represented
by the Union, stated he was interested in what she could tell
him about the Union and asked how she was going to vote.
She stated she would vote against the Union. On Saturday
morning, March 31, Dr. Quintero came to the Southeast clin-
ic and talked to Kathy James and her husband, Pat, who was
working as receptionist. She testified that as Dr. Quintero left
the building he stated that ‘‘if they went union, he’d clean
house again, or that he had cleaned house, and he would do
it again.’’ Her husband confirmed the fact they talked ‘‘about
unions in general’’ and that he would probably vote against
the Union, but that he didn’t remember Dr. Quintero relating
cleaning house with union problems. Kathy James’ testimony
is credited. The General Counsel has proven paragraphs
10(a) and (b) of the complaint.
Paragraph 11 of the complaint alleges that in late March,
Respondent instituted new disciplinary procedures in retalia-
tion for its employees’ union activities. The General Counsel
has failed to point to any testimony supporting this allega-
tion. I recommend its dismissal.
Paragraph 12 alleges that on April 2, Forbes interrogated
employees concerning their and other employees’ union ac-
tivities. Kathy James testified without contradiction that in
early April she expressed frustration over her shortened work
hours to Forbes and that she didn’t like the way things were
going and might change her vote. There had been a union
meeting the previous Saturday. Forbes asked who had at-
tended and stated that James shouldn’t tell anyone about the
conversation or she could get in trouble about it. James told
her who had attended that she knew. The General Counsel
has proven paragraph 12 of the complaint.
Paragraph 13 alleges that on or about April 2, Dr.
Quintero interrogated employees regarding their union activi-
ties. Kathy James testified that she received a telephone call
from Dr. Quintero that morning, and while she didn’t recall
how the subject came up, they discussed the union meeting
held the previous Saturday. She explained it had been a bad
experience for her because she had been called a ‘‘snitch’’
which made her uncomfortable. She did not testify that he
asked her about the Union. The General Counsel has not
proven paragraph 13 of the complaint.
To recap my findings, the General Counsel has proven the
following complaint allegations: Paragraphs 6, 7(a), 7(c),
8(b), 8(c), 9(a), 9(b), 10(a), 10(b), 12, and 14.
He has failed to prove the following allegations: Para-
graphs 7(b), 8(a), 11, and 13.
V. CHALLENGED BALLOTS
The ballots of Schneider, Decker, Peggy Johnson, and Pat
James were challenged by the Employer on the ground they
were no longer employees.
Having found that Schneider and Decker were unlawfully
terminated, I find that they were eligible voters and that their
408 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
votes should be counted. Accordingly, I recommend the chal-
lenges to their ballots be overruled.
The Respondent contends Peggy Johnson is a supervisor.
Johnson is an LPN, as are a number of the unit employees.
She was hired as the dispensing nurse by Sharon Deavers,
the dispensary coordinator, to work in the Northeast clinic,
and later transferred to the Southeast clinic. The classifica-
tion of dispensing nurse is included in the unit description.
While she testified she trained new nurses, no one else works
under her in the dispensary. Diane Jacobs and Kathy Buck,
LPNs included in the unit, work in the dispensary every third
Saturday and Jacobs also works there some every Wednes-
day. Johnson is directly responsible to Hightower and to
Paula Forbes who succeeded Deavers as dispensary coordi-
nator. She has worked in Forbes’ place when Forbes was ill.
When hired, she was told her basic job was to dispense
methadone and keep records on it and maybe someday she
could work into doing some counseling. Counselors are also
included in the unit description. On one occasion she re-
ported to Hightower her concern over some things Jacobs
was doing and was told to write her up. Forbes showed her
how to do it. She and Hightower later met with Jacobs con-
cerning the problems outlined in the document, and both she
and Jacobs signed the writeup at Hightower’s request. She
lacks authority to hire, fire, or discipline fellow employees.
Section 2(11) of the Act defines ‘‘supervisor’’ as:
any individual having authority, in the interest of the
employer, to hire, transfer, suspend, lay off, recall, pro-
mote, discharge, assign, reward, or discipline other em-
ployees, or responsibly to direct them, or to adjust their
grievances, or effectively to recommend such action, if
in connection with the foregoing the exercise of such
authority is not of a merely routine or clerical nature,
but requires the use of independent judgment.
Except for the time she worked in Forbes’ place when
Forbes was ill, it appears that her work is routine and does
not require the use of independent judgment such as would
require a finding that she is a supervisor. With respect to re-
placing Forbes when she was ill, the duration nor her actual
authority during that time were shown. It is well settled,
however, that filling in as a supervisor on a sporadic or ir-
regular basis is insufficient to warrant a conclusion that an
employee is a supervisor. See, e.g., Canonsburg General
Hospital Assn., 244 NLRB 899 (1979). Accordingly, I find
that Peggy Johnson was not a supervisor and recommend
that the challenge to her ballot be overruled.
The name of Pat James was challenged by the Board agent
since his name did not appear on the election eligibility list.
The Employer contended he was no longer an employee.
Testimony regarding James was less than meager. To be eli-
gible to vote in a Board election, an employee must be em-
ployed in the appropriate unit on both the payroll eligibility
date, here on March 30, and the date of the election, here
on May 4. James was hired by Hightower as a receptionist
on March 3 and quit on May 19. He worked 3 hours a day
every other weekend, or six times for a total of 18 hours.
Thus, he was employed as a part-time employee during the
critical period. It is noted further that the classification of
‘‘Part-Time Front Office’’ is included in the description of
the unit agreed to by the parties and approved by the Re-
gional Director. Upon the foregoing, it is found that he was
employed on the critical dates and was an eligible voter. I
recommend that the challenge to his ballot be overruled.
To recap, I find that all four challenged voters were eligi-
ble to vote and recommend the challenges to their ballots be
overruled.
REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices, I shall recommend that it cease and de-
sist therefrom and take certain affirmative action designed to
effectuate the policies of the Act. I shall recommend that Re-
spondent offer Nancy Schneider and Judy Decker immediate
and full reinstatement to their former jobs, dismissing if nec-
essary any replacements, or if those jobs no longer exist, to
substantially equivalent jobs, without prejudice to their se-
niority and other rights and privileges, and make each of
them whole for any loss of earnings they may have suffered
by reason of Respondent’s discrimination against them, by
payment of a sum of money equal to that which they nor-
mally would have earned as wages or benefits from the date
of their discharges to the dates of the respective offers of full
reinstatement, less net earnings during such period, to be
computed in the manner prescribed in F. W. Woolworth Co.,
90 NLRB 289 (1950), with interest in accordance with New
Horizons for the Retarded, 283 NLRB 1173 (1987). I shall
also recommend that Respondent remove from its records
any reference to the unlawful discharges and shall provide
each of the discriminatees with written notice of such re-
moval and inform each that the discharges will not be used
as a basis for further personnel actions concerning them.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act, and a
health care institution within the meaning of Section 2(14) of
the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By implying they would receive benefits if employees
rejected the Union, by creating the impression of surveillance
of their union activities, by interrogating employees, by
threatening to discipline them, by threatening to discharge
them, by threatening more onerous conditions of employ-
ment, by threatening them with unemployment, and by
threatening to close down or sell its operations because they
engaged in union and concerted activities protected by the
Act, Respondent violated Section 8(a)(1) of the Act.
4. By discharging Nancy Schneider and Judy Decker be-
cause they engaged in union and other protected concerted
activities, Respondent violated Section 8(a)(1) and (3) of the
Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended12
409WESTERN HEALTH CLINICS
13 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
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.’’
ORDER
The Respondent, Western Health Clinics, Salem, Oregon,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging or in any other manner discriminating
against its employees because they have engaged in union or
other protected concerted activities.
(b) Implying benefits to employees if they rejected the
Union; creating the impression that Respondent is keeping
their union or other concerted activities under surveillance;
interrogating employees, threatening to discipline or dis-
charge them, threatening to close down or sell the operations;
threatening more onerous working conditions; and threat-
ening them with unemployment because they engaged in
union and/or concerted activities protected by the Act.
(c) In any like or related manner interfering with, restrain-
ing, or coercing its employees in the exercise of the rights
guaranteed by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Nancy Schneider and Judy Decker immediate
and full reinstatement to their former jobs or, if they no
longer exist, to substantially equivalent jobs, without preju-
dice to their seniority or other rights and privileges, dis-
missing, if necessary, any employees hired as replacements
and make them whole for any loss of earnings in the manner
set forth in the remedy section of the decision.
(b) Remove from its files any reference to the unlawful
discharges and notify Nancy Schneider and Judy Decker in
writing that this has been done and that the terminations will
not be used against them in any way.
(c) Preserve and make, on request, available to the Board
and its agents, for examination and copying, all payroll
records, social security payment records, timecards, personnel
records and reports, and all other records necessary to ana-
lyze and determine the amount of backpay due under the
terms of this Order.
(d) Post at its Portland and Salem clinics copies of the at-
tached notice marked ‘‘Appendix D.’’13 Copies of the notice,
on forms provided by the Regional Director for Region 19,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps Respondent has taken
to comply.
IT IS RECOMMENDED that the consolidated complaint be
dismissed insofar as it alleges violations of the Act not found
herein, specifically paragraphs 7(b), 8(a), 11, and 13.
IT IS FURTHER RECOMMENDED, in Case 36–RC–5233, that
the challenges to the ballots of Nancy Schneider, Judy Deck-
er, Peggy Johnson, and Pat James be overruled, that their
ballots be opened and counted and that a revised tally of bal-
lots be issued.
APPENDIX A
January 23, 1990
To: Mintra Sharma, Rick Quintero, Calvin Hightower
From: Western Health Staff
Re: Benefit Package
Per Dr. Quintero’s suggestion we are submitting the fol-
lowing proposal for your consideration. We are requesting a
response from WHS Management staff within two weeks.
1. Holiday Pay: It is proposed that staff of WHS be reim-
bursed for any legal holiday recognized by management and
whenever Western Health is on holiday dosing hours. Those
staff members who are required to work will be paid for the
time they are working in addition to a full day’s holiday pay.
(Double-time).
2. Vacation: It is proposed that WHS revise their vacation
benefit package to reflect: one week (40 hours) after the first
year of full time employment; two weeks (80 hours) after the
second year of full time employment; and, three weeks (120
hours) after the fifth year of full time employment. 32 hours
and more equals full time. Part time employees would accrue
vacation hours at half the rate of full time employees.
3. Sick Pay: It is proposed that sick time be accrued at a
rate of four (4) hours per month, six (6) days per year. All
sick time not utilized would be carried forward into the next
year with a maximum number of hours of accrual. This num-
ber of hours to be negotiated. It is suggested that an em-
ployee be allowed to accrue 250 hours of sick time. Thus in
case of emergency surgery, etc. an employee could utilize
this time and not be financially impacted over time loss from
work.
4. Medical/Dental Benefits: Medical/Dental benefits will
be provided to full time WHS after six months of employ-
ment. WHS management will pay 50% of the premium and
after one year of full time employment this amount will in-
clude management payment of 100% of medical/dental pre-
miums. An employee can enroll members of their families at
their own expense. It is requested that three (3) packages be
presented to staff from medical/dental providers and that
staff be allowed to choose which plan most meets their needs
and a vote be taken and a provider selected.
5. Annual Raises: It is proposed that WHS provide staff
with an annual raise of 5%. This raise is given on the anni-
versary date of employment and will be reflected in the next
pay check. If a supervisor is unable to meet with the em-
ployee to perform a performance appraisal the employee will
not be put off on his/her annual raise.
6. Travel Time/Pay: Whenever WHS requests a staff mem-
ber use their own vehicle to provide a WHS service, the staff
member will be reimbursed for their time and .20 cents per
mile. If a staff member must carry doses to jail, the em-
ployee is reimbursed for all expenses incurred, i.e., time,
mileage and parking if utilized. A WHS staff member should
never be requested to perform a service for management
without being properly reimbursed. A WHS staff person who
is requested to attend a meeting which involves travel will
be reimbursed accordingly or be excused from attendance.
410 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7. Training: WHS management is requested to provide
training to all staff. This training is to include in-service edu-
cation provided by WHS and outside training designed to
better educate staff on addiction, etc.
8. Grievance Procedure: A process be set up for WHS
staff to utilize in case of disagreement with a management
decision.
9. WHS staff are requesting that new employees be fully
advised of what benefits are available. No more secrets.
Standardized treatment for all staff. Policy regarding benefits
should be maintained in the policy manual in precise detail,
fully explaining benefits.
10. WHS staff are requesting a specific dollar amount be
deducted from their checks as a draw (or advance) in the
middle of the pay period. This amount would be individual
and given to employee on an ongoing basis and deducted
from monthly paycheck.
11. Adequate Supplies/Equipment: Management provide
employees with requested supplies. New equipment should
be purchased as necessary in a timely manner. Desks and
chairs should be adequate for employees’ comfort. Straight
back chairs are not acceptable for an employee who sits most
of the day. Management should consider that staff members
are working for them and accept their responsibility to make
their jobs as comfortable as they can.
12. Salary ranges. A salary range be established for posi-
tions and reviewed annually. An employee upon employment
can negotiate within salary range. This salary range is to be
placed in policy manual and available to all staff.
APPENDIX B
January 26, 1990
To: Nancy Schnieder
From: Mintra Sharma, Administrator
Re: Your letter dated January 23, 1990
During my regular management meeting with Mr. High-
tower today, he assured me that an amicable understanding
has been reached with you pertaining to the issues addressed
in your letter. Nevertheless, I feel compelled to respond to
you personally. Please be advised that all your requests will
be considered whenever we review any part of the current
policy and procedures. However, no changes will occur im-
mediately or in the near future.
You addressed the letter, ‘‘From all W.H. Staff.’’ Further
investigation revealed that most of the W.H.C staff were un-
aware of the issues you presented on their behalf nor wished
to condone your assertions.
I will address each issue individually as follows.
Items 1, 2, 3, 4, 5, 6, 9, 10, and 12 are specified in the
W.H.C. Manual. However, I will rewrite each of these issues
again and elaborate in order to simplify them.
All applicants are required to read the policy manual prior
to their employment with WHC. No one employee has ever
been hired in protest of the WHC Policy as written.
Item #7. In-service training are [sic] during our weekly
staff meeting. I recall my December visit, U.A. training was
conducted at all the Team Meetings at the various WHC
sites. During the last Management Meeting, I was made
aware that the Dispensary Procedure Training took place at
the Salem Clinic site in mid January 1990. In December of
1989, I ofered to all WHC staff an opportunity to attend the
State Training which would be conducted outside of the
WHC Facility during 1990. All but two staff members had
some excuse not to attend. The two staff who signed up,
later cancelled for some personal reasons. Oregon Aids [sic]
Task Force offered a seminar recently and Dr. Quintero was
the only one who voluntarily attended. It is apparent that
WHC Management will have to mandate attendance to at
least one of the outside training and all of the weekly in-
service training. Mr. Hightower has completed the in-service
training manual, prepared with Ms. Boley’s assistance. Per-
haps you can discuss the implementation of this task with
Mr. Hightower at your next Team Meeting.
Item 8. In reference to the grievance procedure, there is
a section in the Policy Manual. Please refer to this section
of your Manual as soon as possible in order to review it.
Item 11. On your monthly request form you can indicate
any furniture or equipment needed. Christi will verify the in-
ventory or get price quotes and will submit it for approval.
Furniture and equipment request does take at least 30 days
to get approval and order. All other requests will be filled
within 10 days.
As you are aware, we try to accommodate all staff mem-
bers as best as we possibly can. Although, at times it is very
difficult to make changes with varied staff personalities. We
have some very comfortable desk chairs in storage at the
S.E. Clinic site, please remind Mr. Hightower to exchange
the straight back chairs with the ones in storage. W.H. strives
for staff comfort. A relaxing work environment is imperitive
for productivity.
Dr. Quintero and Dr. Hewitt are always available to ad-
dress any clinical issues that arise at any of the WHC sites.
Mr. Hightower is always available to address any manage-
ment or personnel issues. I am always available to address
any administative issues. All employees are continuously
given constructive feed-back on their job performance.
Item 12. Salary range is established and agreed upon prior
to hiring of any employees to work at any of the WHC sites.
This last item should conclude my response to your issues
addressed in your letter.
Finally, any effort to disrupt therapeutic care provided by
WHC will be grounds for immediate dismissal. It has been
brought to my attention that staff’s personal problems has
been imposed upon other staff members and certain clients.
This behavior only causes confusion and interupts their work
and ongoing quality treatment that we set-up to provide.
All issues must be presented to Mr. Hightower, and a writ-
ten memo from him will be presented to the Administration
for review and response.
An in-service training will be proviced to all Salem staff
on Clinic Policies as soon as it is revised.
cc. Mr. Calvin Hightower, Dr. Rick Quintero, Mr. Paul Dud-
ley, Attorney at Law, File
APPENDIX C
INTEROFFICE MEMO
February 9, 1990
To: Mintra Sharma, Administrator, Rick Quintero, Executive
Director
Subject: Response To January 26, 1990 Letter From Mintra
411WESTERN HEALTH CLINICS
There are many areas addressed in your letter to me regard-
ing the benefits proposal submitted to you by Western Health
staff I am concerned about. They are as follows:
1. This proposal was not written by one staff person (my-
self) and submitted to you. It is an effort in which all Salem
staff met and determined what benefits they felt Western
Health Services should offer to their employees. It was then
shared with staff at the Portland area clinics to get their
input. After this it was submitted to yourself and other man-
agement staff. Vicky at N.E. was the only staff who ex-
pressed no desire to be involved and her wishes were re-
spected. However, there are staff at the NE clinic who are
concerned with a better benefit package.
2. When we talked by telephone on Saturday, you indi-
cated you had spoken to several staff persons (Vicky, Paula,
Christie and Sandy) who had denied any knowledge of this
proposal. On Monday I spoke with Christie who stated she
had not talked with you over the weekend and to her knowl-
edge no one else other than Vicky had talked with you. I do
not consider talking to one person who was opposed to the
proposal a thorough investigation of where Western Health
staff stand on this issue. Further investigation on my part in-
dicates staff at all Western Health clinics are awaiting your
response to their proposal.
3. I realize items 1, 2, 3, 4, 5, 6, 9, 10, and 12 are speci-
fied in the WHS policy manual. However the proposal was
written to express dissatisfaction with these items and not to
request simplification of them. We can read the manual and
see for ourselves what the benefit package provides. It is not
enough! To merely rewrite these items does not address the
fact that [the] WHS benefit package is outdated and not com-
petitive in today’s job market.
4. Applicants review the policy manual sections which
refer to clinic policies, State and Federal guidelines and do
not read sections referring to benefits. Therefore they should
be fully explained prior to employment.
5. This is perhaps my greatest concern. Salem staff met
with Calvin to discuss this proposal but in no way were these
issues resolved or an amicable understanding reached.
Your response indicates you are unwilling to even con-
sider a better benefit package for your employees now or in
the immediate future. You state ‘‘no changes will occur im-
mediately or in the near future.’’ I submit to you the very
real possibility that changes will indeed occur at Western
Health Services in the effect that staff are so frustrated with
management’s lack of understanding of their need for better
benefits and the unwillingness on your part to address these
issues that their only alternative is to seek help from an out-
side source to act as mediator on their behalf. Please under-
stand staff at ‘‘all’’ of Western Health Services are behind
this proposal and your lack of an All Staff response has been
noted by them. I am requesting you send such a memo
addresssed to each staff person or at least a memo to each
clinic to clearly inform them of your position in this matter.
NLS
cc: Calvin Hightower, Regional Director; Jay Lawshe, Clin-
ical Services Manager; Charles D. Burt, Attorney at Law
APPENDIX D
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT discourage membership in or activity on be-
half of Service Employees International Union, Local No. 49,
AFL–CIO, or any other labor organization, or interfere with
the protected concerted activities of employees, by discrimi-
nating against employees who engage in such activity.
WE WILL NOT discharge employees because we believe
they have engaged in union or other protected concerted ac-
tivities.
WE WILL NOT imply that employees will receive benefits
if they reject a union.
WE WILL NOT create the impression that we are keeping
our employees’ union or protected concerted activities under
surveillance.
WE WILL NOT interrogate our employees about their union
or protected concerted activities, or threaten to discharge
them or discipline them for engaging in such activities.
WE WILL NOT threaten more onerous working conditions,
threaten to close down or sell our operations or threaten em-
ployees with unemployment because they have engaged in
union or other concerted protected activities.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of rights
guaranteed them by Section 7 of the Act.
WE WILL offer Nancy Schneider and Judy Decker imme-
diate and full reinstatement to their former or substantially
equivalent positions without prejudice to their seniority or
other privileges, and WE WILL reimburse them for any loss
of earnings they may have suffered because we discharge
them, together with interest.
WE WILL remove from our files any reference to the un-
lawful discharges and notify Nancy Schneider and Judy
Decker in writing that this has been done and that the termi-
nations will not be used against them in any way.
WESTERN HEALTH CLINICS