Williamson Memorial Hospital

National Labor Relations Board - Board Decisions

May 29, 1987

284 N.L.R.B. 37 (N.L.R.B. 1987)

WILLIAMSON MEMORIAL HOSPITAL 37
Hospital Management Associates, Inc., d/b/a Wil-
liamson Memorial Hospital and United Steel-
workers of America, AFL-CIO-CLC. Case 9-
CA-15446
29 May 1987
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN DOSTSON AND MEMBERS
JOHANSEN AND STEPHENS
On 22 January 1982 Administrative Law Judge
Joseph M. May issued the attached decision and on
17 January 1984 he issued the attached supplemen-
tal decision. 1 The General Counsel filed exceptions
and a supporting brief. The Respondent filed an an-
swering brief, cross-exceptions, and a supporting
brief, and a motion to strike the General Counsel's
exceptions and brief.2
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision, the sup-
plemental decision, and the record in light of the
exceptions and briefs and has decided to affirm the
judge's rulings, findings, and conclusions only to
the extent consistent with this Supplemental Deci-
sion and Order.
I. BACKGROUND
The Respondent is a privately owned hospital. In
the spring of 1980, the United Steelworkers of
America conducted an organizing effort among the
hospital's nonprofessional employees. The com-
plaint alleged that the Respondent, through alleged
Supervisor Roger Taylor and alleged
Supervisor/Agent Richard Griffey, violated Sec-
tion 8(a)(1) by: coercively interrogating its employ-
ees regarding their and their fellow employees'
union activities and sympathies; threatening several
1 The judge's supplemental decision was issued pursuant to a Board
Order of 20 May 1982 remanding to the judge for the purpose of resolv-
ing credibility disputes and making findings of fact and conclusions of
law
Members Johansen and Stephens did not participate in the Order Re-
manding Proceeding to the Administrative Law Judge.
2 The Respondent has moved to strike the General Counsel's excep-
tions to the supplemental decision in their entirety, contending that they
fail to comply with Sec 102.46(b) of the Board's Rules and Regulations
in that they contain no page citations to the record and/or fall to desig-
nate those portions of the supplemental decision to which they purport to
refer and attempt to renew moot arguments by appending exceptions to
the judge's original decision
The motion is denied inasmuch as the General Counsel's exceptions
properly refer to those portions of the judge's supplemental decision to
which they apply
Further, the judge's original decision is before the Board for consider-
ation. Accordingly, we have properly considered the General Counsel's
exceptions and supporting brief and the Respondent's answering brief,
cross-exceptions, and supporting brief, all filed in response to the judge's
original decision issued on 22 January 1982.
of its business office employees that the hospital
would close if its employees selected the Union as
their bargaining representative; threatening to dis-
charge an employee if she did not sign a petition
seeking the Union's withdrawal from a Board rep-
resentation election; circulating the aforementioned
petition among its employees; and creating an im-
pression of surveillance of its employees' union ac-
tivities.
The complaint also alleged that the Respondent
violated Section 8(a)(3) by permanently laying off
four of its business office employees because they
did not sign an alleged antiunion petition.
In his original decision, the judge dismissed the
complaint in its entirety. He found, without discus-
sion or evaluation, that the testimony did not sup-
port a finding that the Respondent engaged in in-
terrogation, surveillance, threat of job loss, or
threat of hospital closure. The judge did not ad-
dress the issue whether the Respondent violated
Section 8(a)(1) by circulating a petition or by creat-
ing an impression of surveillance.
Upon review, the Board remanded the case, di-
recting the judge to: (1) resolve conflicts of credi-
bility between Taylor and the four alleged discri-
minatees; (2) determine the statutory relationship
between Taylor, Griffey, and the Respondent; (3)
discuss which testimony the judge considered
"consistent with the charge" that the four employ-
ees were discharged for refusing to sign the peti-
tion; and (4) resolve the inconsistency between his
reliance on testimony which indicates that the four
employees were discharged partially for not sign-
ing the petition, and his categorical dismissal, with-
out discussion, of the allegations that the Respond-
ent violated Section 8(a)(1) by circulating an an-
tiunion petition and creating an impression of sur-
veillance.
In his supplemental decision, the judge main-
tained that there were no conflicts of credibility to
be resolved; rather, he asserted the conflict was
one of different interpretations given to the same
set Of facts. He again recommended dismissing the
complaint in its entirety. The General Counsel and
the Respondent except.
Inasmuch as the judge has failed to perceive and
resolve on two occasions the factual and legal
issues before him, the Board is certainly free to
review the record de novo and make appropriate
findings of fact and conclusions of law.3
H. ANALYSIS OF THE CASE
1. The judge found that Roger Taylor was a su-
pervisor based on the fact that he was the business
3 See, e g, California Pellet Mill Co, 219 NLRB 435 (1975)
284 NLRB No. 5
38 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
office and accounts manager and could issue
"orders of limited effect." Although we agree with
the judge's conclusion, we rely additionally on the
following factors: Taylor possessed authority to
evaluate employees' work performances, resolve
disputes, assign work, and effectively recommend
hiring.4
2. The judge also found Richard Griffey to be a
supervisor and/or agent of the Respondent. The
judge found that Griffey attended meetings where
the corporation's position with respect to the
Union was discussed, he "issued orders" to Taylor,
"carried messages" to Taylor and the personnel di-
rector, and the employees regarded him with re-
spect. The Respondent excepts to the judge's ra-
tionale and conclusion finding Griffey to be a su-
pervisor and/or an agent. The General Counsel ex-
cepts only to the judge's rationale. We find, as
urged by the Respondent, that Griffey was neither
a supervisor nor an agent of the Respondent.
The General Counsel subpoenaed Griffey but did
not call him to testify. Griffey's status was fully
litigated during the postelection challenged-ballots
proceeding. There he was found not to be a super-
visor. Although that finding is not binding in an
unfair labor practice case alleging independent vio-
lations of Section 8(a)(1), 5 the evidence in that pre-
vious record was introduced in the instant proceed-
ing in lieu of testimony by Griffey. The record
there showed that Griffey had no authority to hire,
fire, discipline, reward, or promote employees.
Much of Griffey's time was spent in physical in-
ventory and inventory control.
There is no support in the record for a finding
that Griffey at any time issued orders to Taylor or
gave messages to Taylor or to the personnel direc-
tor. The fact that other employees held him in
"high esteem" is not relevant to a finding of super-
visory status. Although the record indicates that
Griffey may have attended management meetings
where campaign literature was handed out to de-
partment heads for distribution in their respective
departments, there appears to be no evidence that
any supervisory authority accompanied his attend-
ance. Nor has the General Counsel adduced any
evidence which we regard as sufficient to establish
an agency relationship between Griffey and the
Respondent that would encompass any of the mat-
ters at issue in this case. Based on the foregoing,
we do not find Griffey to be a supervisor or an
agent of the Respondent Accordingly, any alleged
4 The status of Taylor, like that of Richard Griffey, discussed infra,
was litigated in the preelection and postelection representation proceed-
ings There he was found to be a supervisor within the meaning of the
Act. In any event, the Respondent does not except to the judge's finding
of supervisory status for Taylor
5 See Serv-U-Stores, Inc , 234 NLRB 1143 (1978).
impermissible activity on his part cannot be attrib-
uted to the Respondent.
3. Turning our attention now to the allegations
of the complaint, the record reflects that with
regard to the unlawful interrogation allegation, em-
ployee Chris Henson testified that on one occasion
Taylor, her immediate supervisor, asked her if she
was for or against the Union. On another occasion
he called her into his office and asked her if she
knew if any of the other employees were for or
against the Union, and he named specific persons.
She replied that it was really none of her business,
or his either, for that matter, and declined to dis-
cuss the subject. Probing further, Taylor asked her
if she had plans to sign the petition and she said no.
On yet a third occasion he asked her if she knew
who had passed out the union cards and if she had
attended any of the union meetings.
In response to the Respondent's counsel's read-
ing of the complaint allegation, Taylor summarily
denied coercively interrogating (a legal conclusion)
any employees regarding the Union, yet he admit-
ted asking Henson how she felt about the Union.
Taylor was not asked about, and therefore did not
refute, Henson's specific testimony that Taylor
asked about the union sympathies of other employ-
ees.
The judge, without discussion of Henson's testi-
mony, dismissed the complaint allegation regarding
interrogation. In Rossmore House 6 and Sunnyvale
Medical Clinic, 7 both of which issued subsequent to
the judge's supplemental decision, the Board reiter-
ated its test for evaluating whether interrogations
violate the Act: whether under all the circum-
stances the interrogation reasonably tends to re-
strain, coerce, or interfere with rights guaranteed
by the Act. 5 In Sunnyvale, the Board outlined some
areas of inquiry that may be considered in applying
this totality-of-the-circumstances test. These areas
of inquiry include the background, the nature of
the information sought, the identity of the question-
er, and the place and method of interrogation.
Applying Rossmore House and Sunnyvale and re-
lying on Henson's testimony, we find, unlike the
judge, that Taylor's questioning of Henson was suf-
ficiently coercive to require finding a violation. In
reaching this conclusion, we rely principally on the
following factors: Taylor was Henson's immediate
supervisor; he called her into his office to speak
with him privately; and he asked her if she knew
the union sympathies of specific people. Accord-
6 269 NLRB 1176 (1984), affd 760 F 2d 1006 (9th Cir 1985)
7 277 NLRB 1217 (1985)
8 Blue Flash Express, 109 NLRB 591 (1954), cited in Rossmore House,
269 NLRB at 1177, 1178 fn 20 (1984)
WILLIAMSON MEMORIAL HOSPITAL 39
ingly, the Respondent coercively interrogated
Henson in violation of Section 8(a)(1) of the Act.
4. The judge further concluded that the Re-
spondent, through Taylor, did not make threats to
close its hospital if the Union were selected. The
record shows that the Respondent's counsel did not
call Taylor to testify during its case-in-chief. Nor,
during cross-examination, did the Respondent's
counsel question Taylor concerning any specific
statements. Rather, the Respondent's counsel
merely read Taylor the complaint allegations.
Taylor denied threatening any employees with hos-
pital closure if they selected a union by declaring,
"No. No. I did not do that." He asserted that all
the employees knew he had no power to effect
such a closure. To the extent that he could recall,
he had not made threats that anyone else would
close the hospital either.
On the other hand, employee Elizabeth Pope tes-
tified in detail about a group conversation in which
Taylor brought the previously described petition
(see also discussion of petition infra) into the col-
lections office and asked the four women working
there to sign it. According to Pope, he told them
that "if the Union did not go through, that the hos-
pital would just close their doors, that they weren't
making that much money, and they couldn't pay
their bills now, and they would close their doors
before they would let the Union come in."
Pope's testimony concerning the threat to close
was corroborated by that of employees Roberta
Duty and Aundra Harlow. Duty testified as fol-
lows: "Roger told us that we were the only girls in
the business office that had not signed the petition.
He told us that if the Union came in the hospital,
we would close its doors. He told us if the Union
came in that we would quit; and he tried to get us
to sign; that the hospital would close its doors."
Harlow also remembered Taylor saying that the
hospital would close if the Union came in, but
could not specify the exact time the statement was
made.
We conclude that the preponderance of the evi-
dence supports a finding that the statements out-
lined above were in fact made by Taylor. Taylor
merely denied the complaint's allegation in re-
sponse to a leading question by the Respondent's
counsel. Thus, the specific and detailed testimony
of the three employee witnesses remains essentially
unrebutted. We find the remarks attributed to
Taylor constitute a threat to close the hospital if
employees selected the Union as their representa-
tive. Such statements violate Section 8(a)(1) of the
Act.
5. With regard to Taylor's alleged threat to dis-
charge employee Chris Henson, Henson testified
that on the day before the election she came to
Taylor's office to file papers and she said to
Taylor, "Well, tomorrow is the day when all of
this will be over with." Taylor said, "Yes, it will.
You know, by not signing that petition, that could
cost you your job." She then told him that how
she felt about the Union was her business and then
left the office.
Taylor, who testified first, was not asked about
this specific conversation. Rather, he was asked by
the Respondent's counsel on cross-examination
whether he "threatened an employee with dis-
charge because the employee did not sign the peti-
tion." Taylor responded, "Not true. Never." Inas-
much as Taylor was not recalled to testify, Hen-
son's specific and detailed testimony remains unre-
butted.
Taylor's summary denial of the complaint's alle-
gation was insufficient to refute Henson's testimo-
ny. Accordingly, we find that the Respondent,
through Taylor, violated Section 8(a)(1) by threat-
ening to discharge an employee.
6. The complaint also alleged that the Respond-
ent unlawfully created an impression that union ac-
tivities were under surveillance. Chris Henson testi-
fied that Taylor told her that the Respondent's at-
torney had asked him if he knew whether Henson
was for or against the Union. Henson then asked
Taylor if Respondent made it a practice of asking
about its employees' opinions and views about the
Union, to which Taylor responded, "Well Chris, I
talked to them and then I talk to you, and then I
go back and talk to them." In response to the Re-
spondent's counsel's reading of the complaint alle-
gation, Taylor denied generally that he had created
an impression of surveillance, but was not recalled
to refute this specific testimony offered by the
General Counsel's witness. Again, Taylor's summa-
ry denial of the complaint's allegation was insuffi-
cient to contradict Henson's detailed testimony.
Accordingly, based on Henson's testimony, we fmd
that the Respondent, through Taylor, viOlated Sec-
tion 8(a)(1) by creating an impression of surveil-
lance of employees' union activities.
7. The complaint also alleged that the Respond-
ent, acting through Supervisor Taylor, violated
Section 8(a)(1) by circulating among its employees
a petition seeking the Union's withdrawal from the
representation election then scheduled for 25 April
1980. Taylor admits asking four of his employees in
the collection department to sign a petition which
read as follows:
We the undersigned request that the Steel-
workers Union withdraw from the election at
Williamson Memorial Hospital. There are
40 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
problems at the Hospital and we want to work
them out with the hospital. If in six (6) months
these problems are not improved we want you
to file for another election on our behalf.
The Respondent and the General Counsel dis-
pute the nature of the petition. According to the
Respondent, the petition was "neutral," seeking
only a delay in the election process. The General
Counsel counters that the petition qualifies as "an
anti-union petition." In this regard, the General
Counsel relies on the language of the petition's cap-
tion, the inclusion of signatures of recognized de-
partment heads and/or supervisors, and the Re-
spondent's use of the petition to determine whether
or not employees supported the Union.
Taylor testified that he used the petition as a ba-
rometer to measure employees' antiunion sympa-
thies. He testified that
Griffey came to my office and told me that I
had four girls who did not sign and I told him
that that was impossible because all the girls
that worked for me were anti-union. . . and I
said, "Here, I'll go talk to them. . . ." After
the petition was not signed by those four girls,
I felt that maybe those four girls might not
vote against the Union.
On the basis of the plain language of the petition which
requests the union to withdraw from the election, the in-
clusion of signatures of department heads and/or super-
visors, and the Respondent's use of the petition to deter-
mine whether certain employees supported the Respond-
ent or the Union, we find and conclude, in agreement
with the General Counsel, that it constituted an antiun-
ion petition. Further, the Respondent, through Supervi-
sor Taylor, violated Section 8(a)(1) by circulating it.
8. The judge found that the General Counsel
successfully made out a prima facie showing that
Respondent discriminatorily discharged the four
collection-office employees (Duty, Harlow,
Hensen, and Pope) because they refused to sign the
antiunion petition. He reached this conclusion after
finding that the four dischargees were active and
vocal supporters of representation; they refused to
sign the petition; and the record showed that
roughly twice as many employees signed the peti-
tion as did not sign it, and yet roughly five times as
many signers as nonsigners retained their jobs at
the time of the hearing.
Although we agree with the judge that the Gen-
eral Counsel made out a prima facie case raising an
inference that the discharges were discriminatorily
motivated, we rely only on the following factors:
the General Counsel demonstrated union activity
on the part of the four discharged employees by
their refusal to sign the antiunion petition; the Re-
spondent, through Taylor, knew of their union sup-
port and knew that they were the only four em-
ployees in the collection office who had refused to
sign the antiunion petition; and the Respondent dis-
played union animus through Taylor's unlawful in-
terrogations, his creating an impression of surveil-
lance, and his threat to Henson that not signing the
petition could cost her her job.
In Wright Line, 251 NLRB 1083 (1980,) enfd. on
other grounds 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 959 (1982), 9 the Board held that
once the General Counsel makes a prima facie
showing that protected conduct was a motivating
factor in an employer's action against an employee,
the burden shifts to the employer to demonstrate
that it would have taken the same action even in
the absence of the protected conduct. The employ-
er's proffered basis must be proved by a preponder-
ance of the evidence.
The facts show that the Respondent purchased
the hospital in 1978 and agreed to pay the seller,
Dr. Salton, a percentage of the collections on pre-
existing accounts receivable, called "Salton receiv-
ables." This task was to be accomplished through
the business office, which had been allocated four
full-time equivalent (FTE) slots to work on collect-
ing the Salton receivables. Henson, Harlow, Duty,
and Pope, the four discharged employees, held
those four positions. All four of these employees
admitted that they understood when hired for these
positions that the positions were temporary and
that the special Salton collections operation would
be closed down at some point." At least two of
the employees were advised that this could be as
early as January 1980.
According to a January 1980 memorandum from
the Respondent's corporate consultant to Hospital
Administrator Hugh Drake, certain accounts re-
ceivable were to lie turned over to a collection
agency, one employee was supposed to be termi-
nated on 11 January 1980, the FTE slots for the
business office were to be reduced from four to
three, and further personnel reductions were to be
taken at the end of January and February. These
actions were not taken by Drake, and he was dis-
charged at the end of May.1'
9 Approved in NLRB v Transportation Management, 462 U.S. 393
(1983)
"Employee Duty had previously worked as a secretary to the Re-
spondent's administrator, and she testified that Pat Covington, whom
these employees described as a "consultant" to the Respondent, had en-
couraged her to move over to one of the Salton positions with an oral
promise that she could return to another permanent position when the
Salton operation closed. She admitted that Covington did not promise
she could return to her old job or, indeed, to any particular job.
" Although It is true that employees Henson and Harlow had been
assigned collection work (HMA work) other than the Salton accounts in
March 1980, their testimonies and that of employee Pope indicate that
Continued
WILLIAMSON MEMORIAL HOSPITAL 41
Gerald Tipsword was assigned as Drake's suc-
cessor on Monday, 2 June 1980. On Thursday or
Friday of the same week, Tipsword instructed
Roger Taylor and the personnel director, Gerri
Deaton, to lay off the four alleged discriminatees.
He told Deaton and Taylor these employees were
being laid off because the Salton collection office
was a temporary department and there was a de-
clining return on the investment.
The 6 June notice of discharge to the affected
employees stated that the Salton office had been set
up as a temporary office, which had been contin-
ued longer than the company expected, and
thanked the employees for the work they had
done. The Respondent's check ledger of deposits to
the Salton account also demonstrates that there
was a steady and marked pattern of decline in col-
lections from a monthly high of $166,661.62 in
June 1979 to a monthly low of $10,563.69 12 at the
end of May 1980. Under the purchase agreement
with Dr. Salton, the Respondent would only keep
50 percent of whatever was collected and the bal-
ance would be turned over to Dr. Salton.
Tipsword estimated that the cost to the Re-
spondent of staffing the Salton collection office
was approximately $2500 per month in wages
alone. If a collection agency did the work, based
on a 30-percent commission, the cost to Respond-
ent would be less as collections diminished. Within
30 days after the 6 June discharges, all the Salton
accounts were in fact turned over to an outside
collection agency.' 3
they were given to understand that they would be doing this work only
so long as the ,Salton operation remained open Thus, although their testi-
monies varied whether It was Consultant Covington, Comptroller Beas-
ley, or Administrator Drake who assigned the HMA work, no testimony
directly conflicted with employee Harlow's testimony that she was prom-
ised that she could perform the HMA work "as long as they were bring-
ing in at least $10,000 a month on the Salton Accounts " Pope's tes-
timony indicates that Beasley either quit or was discharged in March or
early April
12 Given this steady downward trend of monthly collections, it ap-
peared likely that they would dip below $10,000 m the month of June,
and the testimonies of Henson, Harlow, and Pope indicate that they un-
derstood that the $10,000 figure was the critical one for keeping the
Salton operation open Of course Tipsword, as a new administrator, was
not, in any event, bound to follow exactly the policies of Drake, who had
failed to make the personnel reductions previously recommended by
Consultant Witsell.
18 Employee Harlow was later, in September 1980, hired as an admis-
sions clerk, and by the time of the hearing she had advanced to the posi-
tion of buaniess office manager
The IlMA collection work on which Henson and Harlow had worked
was performed from June until September or October by Manager
Taylor with occasional assistance from other employees who helped him
when they were not busy with their regular duties (such as answering the
telephone). In September or October, Patty Lawson, was hired to assist
him and, after his discharge in November, she handled the work by her-
self Henee, the evidence indicates that the HMA work performed by
Henson and Harlow could be done essentially by one person. The Re-
spondent 'could reasonably have believed Taylor could handle it initially
and thus had no reason to keep Henson or Harlow on to perform that
work.
Under the facts of this case, we find, as contend-
ed by the Respondent, that the alleged discrimina-
tees were hired on a temporary basis for the limit-
ed purpose of collecting the Salton accounts re-
ceivable. We are persuaded that the discharges of
the four employees in June 1980 were based on le-
gitimate business justifications. The Respondent es-
tablished that as of June 1980 it was no longer fi-
nancially beneficial to operate a Salton collection
office and the conclusion is warranted that it acted
for this reason. Accordingly, we shall dismiss the
8(a)(3) allegations.
ORDER
The National Labor Relations Board orders that
the Respondent, Hospital Management Associates,
Inc., d/b/a Williamson Memorial Hospital, Wil-
liamson, West Virginia, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Initiating, sponsoring, or circulating among
its employees any petition seeking the Union's
withdrawal from a scheduled representation elec-
tion.
(b) Coercively interrogating its employees re-
garding their union membership, activities, and/or
sympathies.
(c) Threatening hospital closure if employees
continue their activities and support on behalf of
the Union.
(d) Threatening employees with job loss because
they have not signed a petition seeking the Union's
withdrawal from a scheduled representation elec-
tion.
(e) Creating an impression among its employees
that their union activities are under surveillance by
Respondent.
(f) In any like or related manner interfering with,
restraining, or coercing employees in the exercise
of the rights guaranteed them by Section 7 of the
Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Post at its Williamson Memorial Hospital
copies of the attached notice marked "Appen-
dix." 14 Copies of the notice, on forms provided by
the Regional Director for Region 9, after being
signed by the Respondent's authorized representa-
tive, shall be posted by the Respondent immediate-
ly upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
14 If this Order is enforced by a Judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board"
42 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced,
or covered by any other material.
(b) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had a chance to
give evidence the National Labor Relations Board
has found that we violated the National Labor Ra-
lations Act and has ordered us to post and abide by
this notice.
WE WILL NOT initiate, sponsor, or circulate
among you any petition seeking the Union's with-
drawal from a scheduled representation election.
WE WILL NOT coercively interrogate you regard-
ing your union membership, activities, and/or sym-
pathies.
WE WILL NOT threaten hospital closure if you
continue your activities and support on behalf of
the Union.
WE WILL NOT threaten you with job loss be-
cause you have not signed a petition seeking the
Union's withdrawal from a scheduled representa-
tion election.
WE WILL NOT create an impression among you
that your union activities are under surveillance.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
HOSPITAL MANAGEMENT ASSOCI-
ATES, INC., D/B/A WILLIAMSON ME-
MORIAL HOSPITAL
Jane E. Ballenger, Esq., for the General Counsel.
John S. Greenebaum, Esq. and Thomas C. Fenton Esq., of
Louisville, Kentucky, for the Respondent.
Steven D. Maas, Esq., of Charleston, West Virginia, for
the Charging Party.
DECISION
STATEMENT OF THE CASE
JOSEPH M. MAY, Administrative Law Judge. The
charge in this matter was filed by United Steelworkers of
America, AFL-CIO-CLC on June 13, 1980. The com-
plaint issued July 16, 1980, alleging that during March
and April 1980 Respondent, through certain agents, coer-
cively interrogated employees with respect to their and
their fellow employees' union membership, activities, and
sympathies; created an impression that any such union
activities were under surveillance; implied the closure of
Williamson Memorial Hospital if employees continued
any activities in support of the charging labor organiza-
tion as their bargaining representative; circulated a peti-
tion seeking withdrawal of the labor organization from a
then-scheduled representation election; threatened an em-
ployee with discharge for failure to sign the petition; and
did discharge that employee and three others because of
their support of the labor organization and their other
concerted activities for the mutual aid and protection.
The complaint charges that the alleged conduct consti-
tutes interference, restraint, and coercion of employees in
the exercise of certain statutory rights in violation of
Section 8(a)(1) of the National Labor Relations Act; and
that the discrimination in regard to the hiring, tenure, or
terms of employment of its employees, so as to discour-
age membership in a labor organization, constitutes
unfair labor practices within the meaning of Section
8(a)(1) and (3) of the same statute. In its answer to the
complaint, Respondent denies all the allegations other
that those constituting the jurisdictional prerequisites.
The proceeding was assigned to me for hearing and
decision. Hearing was held in Williamson, West Virginia,
on March 19 and 20 and April 2, 1981. At the hearing,
Respondent stipulated to the supervisory status of a hos-
pital administrator. Respondent and the General Counsel
filed posthearing briefs.
Jurisdiction
Respondent is a Kentucky corporation that operates a
health care institution within the meaning of Section
2(14) of the Act at Wiliamson, West Virginia. These op-
erations produce annual gross revenue of more than
$250,000; and the facility annually purchases medicine
and supplies valued at more than $50,000 directly from
points outside the State of West Virginia. The Union is a
labor oraganization within the meaning of Section 2(5) of
the Act. The finding is therefore warranted that Re-
spondent is both an employer engaged in commerce and
a health care institution within the meaning of the Act,
that the Uruon is a labor organization within the meaning
of the Act, and that it will effectuate the policies of the
Act to assert jurisdiction.
A simple narrative statement of facts in this case
would be a literary accomplishment of a high order.
Counsel for both parties, though surely not through
guile, chose to introduce evidence consequentially,
through hostile witnesses,' through exhibits that could
not be authenticated when offered, and, in one instance,
through counse1. 2 A recitation of certain background
1 Fn. 7 of the Respondent's brief observes that the General Counsel
had subpoenaed one Griffey (whose agency is alleged m the complaint),
but did not call him despite his availability Except for an obscure refer-
ence on Tr. 408, the judge was not made aware of this subpoena.
2 Thomas C. Fenton,counsel for Respondent, was added as an agent by
amendment of the complaint during the hearing. He was subsequently
permitted to testify about his activities without objection The judge be-
lieves that the requirements of Canon 5 and Disciplinary Rule 5-101
(b)(4) were satisfied
WILLIAMSON MEMORIAL HOSPITAL 43
material, most of which is documented in exhibit form,
will be attempted first.
Williamson Memorial Hospital was organized as a pro-
prietary hospital corporation under the sole ownership of
Russell A. Salton, M.D. until 1978. The latter's name
will be used as descriptive of certain of the hospital's
older accounts receivable, but Dr. Salton himself is not a
party to this action. The hospital and a division of the
accounts receivable were sold to Hospital Management
Associates, Inc., and the collection of those accounts re-
ceivable relates directly to one or more of the unfair
labor practices complained of by the General Counsel.
In the spring of 1980, the Charging Party, United
Steelworkers of America, AFL-CIO-CLC, conducted
an organizing effort among the hospital's nonprofessional
employees. This effort led to a direction on March 26,
1980, that an election be held using a list of eligible
voters compiled on March 21. (G.C. Exhs. 2 and 5.) On
April 11, 1980, Myra Newsome and Ronnie Davis, both
of whose names appear on the eligibility list, directed let-
ters to the Union's organizer at Wheeling, West Virginia,
and the Board's Regional Director at Cincinnati, Ohio,
attaching copies of a petition signed by 74 employees
represented as being eligible voters. The petition, which
is a part of General Counsel's Exhibit 12, is described in
Respondent's brief as "neutral in tone"; but at least three
employees thought it was antiunion and would not sign;
one would not sign because it seemed to settle nothing;
and one initially refused to sign because it seemed proun-
ion. The petition reads as follows:
WE THE UNDERSIGNED REQUEST THAT THE STEEL-
WORKERS UNION WITHDRAW FROM THE ELECTION
AT WILLIAMSON MEMORIAL HOSPITAL. THERE ARE
PROBLEMS AT THE HOSPITAL AND WE WANT TO
WORK THEM OUT WITH THE HOSPITAL. IF IN SIX ( 6 )
MONTHS THESE PROBLEMS ARE NOT IMPROVED WE
WANT YOU TO FILE FOR ANOTHER ELECTION ON
OUR BEHALF.
The election was held by secret ballot on April 25,
1980. There were 93 ballots cast of which 1 was void,
43 were for the Union, 40 were against the Union, and 9
were challenged. Objections were filed in early May, and
an investigation was ordered that resulted in the sustain-
ing of only three challenges. The remaining 6 votes were
then opened and found to be cast against the Union; and
a revised tally of 46 to 43 against the Union was ap-
proved in a Certification of Results issued December 5,
1980. (G,C. Exhs. 3, 4, 6, and 8.)
During this period of time, Hospital Management As-
sociates was busy shuttling executive personnel in an
effort to reduce expenditures and inevitably, employee
payroll, at Williamson General Counsel's Exhibits 5 and
6 establish the number of eligible voters in March 1980
to be approximately 99. There are 74 signatures on Gen-
eral Counsel's Exhibit 12 (the petition); but that does not
mean that only 25 eligibles did not sign, because it is
clear that 10 or more signatures are those of professional
workers or supervisory employees not affected by the
election and not shown on the eligibility list (G.C. Exh.
5). Two signatures on the petition (those of Nyoka
Farley and Roger Taylor) represent two of the success-
fully challenged votes; and it is more than probable, in
view of small numbers involved, that the Geraldine
Deaton on the petition is the Frances G. Deaton on the
eligibility list.
It is necessary for the judge to make this computation
in order to properly evaluate Respondent's Exhibits 7, 8,
and 9. These three exhibits purport to show, respective-
ly, those voters who signed the petition and are no
longer employed, those who signed and are still em-
ployed, and those who did not sign and are no longer
employed. 3 Thus, of the 64 (not 74) voters who signed
the petition, 21 (or 32.8 percent) are no longer employed
at the hospital Of the 35 (not 25) voters who did not sign
the petition, 14 (or 40 percent) are still employed at the
hospital. Although these data clearly indicate that 60
percent of the nonsigning voters must no longer be em-
ployed at the hospital, Respondent's Exhibit 9 accounts
for only eight such persons (or only 22.9 percent). Inas-
much as the three termination exhibits were prepared
and offered by the Respondent it is proper to resolve any
inconsistencies in the manner least favorable to the Re-
spondent. Accordingly, the 60-percent calculation for no
longer employed nonsigners of the petition will be relied
on here. The narrative that follows must be interpreted
in the light of this background.
When Respondent purchased the hospital in 1978, it
agreed to pay a percentage of whatever existing accounts
receivable it could collect as part of the purchase price.
These receivables had been neglected and some were as
much as 20 years old. Their total amount was about $3.8
million.
The agreement with Dr. Salton (a draft of which con-
stitutes R. Exh. 1) provided for the physical separation
of the Salton accounts collection mechanism from that of
Respondent's own collection processes, but it is clear
that this objective was never fully accomplished. Control
procedures proposed April 30, 1979, called for double
tapes of all ledgers and separate telephone lines for the
"Annex" 4 to which two employees were to be assigned
permanently. (R. Exh. 2.) The preponderance of the tes-
timony, however, indicates that the then administrator of
the hospital did not implement these measures. Only the
creation and maintenance of two separate bank accounts
was given the attention of management. In August 1979,
Respondent's centralized management prepared a mini-
3 There is absolutely no justification for the comment on sheet 12 of
the General Counsel's brief that Exhs. 7, 8, and 9 were shown at trial to
be inaccurate in certain respects An employee who elected to resign on
being given that option as an alternative to discharge was properly
grouped among those shown as discharged on R Exh. 7, one who was
rehired subsequently to her original layoff was properly grouped among
thoses shown as still employed on R Exh 8; and three employees laid off
and shown as no longer employed on Respondent's exhibit were properly
identified as those terminated due to the closing of the Salton collections
office to distinguish them from the other five on the exhibit who are
shown as no longer employed by virtue of resignation If the exhibits do
indeed contain inaccuracies, those inaccuracies must be inferred from the
computations set forth in the text above; they were not shown at trial at
all The significance of the exhibits must likewise be recovered from the
context of the record as a whole rather than from the briefs of the par-
ties.
4 The Administrative Building referred to in R. Exh. 10 Some testimo-
ny indicates that all the accounts were in the same office
44 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
mum staff level chart based on the number of patient
beds that might be occupied. The chart was developed in
5-percent increments up to the hospital's full capacity. It
is broken down into levels for each of the many depart-
ments of personnel necessary to run a hospital; and the
levels are expressed in terms of the minimum number of
"full-time equivalents," which is a managerial device for
measuring the contributions of part-time and full-time
employees as a single unit. (R. Exh. 4.) The matters that
are the subject of the complaint being considered herein
occurred among employees of the department known as
the business office. Management had set a level of nine
full-time equivalents for this department at the lowest
rate of patient occupancy. This level was to rise to 11 as
occupancy rose to 30 percent of capacity, to 12 at 60
percent, and to 13 at 90 percent. Nine exceptions were to
be allowed at all occupancy levels throughout the hospi-
tal; and the exhibit clearly shows that four such excep-
tions were allocated to the business office for the Salton
receivables. According to Respondent's Exhibit 5, which
is a January 1980 memorandum from the Company's
comptroller in Dallas, Texas, to Hospital Administrator
Drake, one employee was to be terminated immediately,
the Salton receivables were to be turned over to a col-
lection agency, and the full-time equivalent exception for
the business office was to be reduced from four to three.
These steps were not taken by Administrator Drake in
January, and he was replaced by Tipsword in June, the
day before the four business office employees were dis-
charged. Allowable full-time equivalents in the business
office were fractionally under 12 (without considering
the exceptions) at all times during 1980. Those actually
on board ranged from 18 in January to 16 persons (ac-
cording to R. Exh. 6) or 15 persons (according to dis-
chargee's recollection) on the day of the 4 discharges.
At the time of the discharge, one of the employees
was offered another job, a part-time, night-shift position
on the hospital's switchboard. She refused the offer, and
her testimony together with that of the other three dis-
chargees effectively refuses the self-serving memorandum
that constitutes Respondent's Exhibit 10 in which Roger
Taylor asserts that two people turned down the offer,
and the testimony of Deaton that all four declined the
offer. Deaton could not remember who eventually filled
the position. Taylor, who was business office manager,
was discharged soon thereafter, and at the time of the
hearing his former position was being held by one of the
dischargees, the subsesquently rehired Aundra Harlow.
Taylor (who testified) and Griffey (who did not) are
the individuals alleged to have interrogated the employ-
ees, circulated the petition, and threatened closure of the
hospital if the Union won representation , 5 Hardly any of
the testimony supports these charges. It would require a
strained interpretation of a conversation with Taylor to
read into it a threat of closure or even loss of job. None
of the dischargees was aware of any surveillance. Three
only connected their discharges with the petition activity
after the fourth spontaneously suggested the connection
5 As noted by the General Counsel, It is the fact of these actions, not
their motivation, that is controlling in this aspect of the complaint Moti-
vation is pertinent only to the discharges
as they protested their sudden terminations to Tipsword.
The latter, new on the scene, had nothing to do with the
election but was simply a management-oriented budget
cutter whose single-minded purpose was to reduce the
hospital's payroll to the minimum consistent with man-
agement estimates of the numbers needed to provide hos-
pital services.
The documentary evidence tells another story just as
clearly. Respondent's business office payroll exceeded
management objectives month after month. Administra-
tors were replaced for failure to speed up collection of
accounts receivable and bring the number of employees
down to the levels established as goals in 1979. Further,
Respondent's Exhibit 12, which is its checking-account
ledger running from June 1979 to September 1980, shows
a steady decline m the amounts collected through the ef-
forts of the four employees continuing through the date
of their discharge and for 4 months thereafter. The man-
agerial necessity for the discharges in the business office
is apparent. The manager of the business office, Taylor,
did not escape, as already noted.
The finding is therefore warranted that Respondent
had both a legitimate business reason to lay off the col-
lections employees and an unlawful reason grounded in
the employees' right to engage in an activity protected
by the statute. The discharges present, then, a true
mixed-motive case.
In a mixed-motive case, the General Counsel bears on
initial burden of demonstrating a significant, improper
motivation Statler Industries v. NLRB, 644 F.2d 902 at
905 (1st Cir. 1981). This burden has been satisfied by the
testimony taken together with the statistical improbabil-
ity of the retention of so many petition signers compared
with so few nonsigners. It then falls to the employer to
show that it had a good reason, sufficient in itself, to
produce the discharge. Respondent has clearly shown
that it had a reason, as set forth in the discussion above.
The question presented, then, is whether the discharges
would have taken place even in the absence of the pro-
tected conduct.
The documentation offers some helpful insight into the
thinking of management. The problem of the staffing of
the business office was apparent in 1979 and was specifi-
cally addressed in early 1980 communications from the
home offices of Respondent to the administrator at Wil-
liamson. The administrator did nothing. His successor
did nothing. Finally. Tipsword was dispatched to Wil-
liamson to replace the administrator and put the business
office on a sounder footing. Though the discharges came
suddenly on Tipsword's arrival, the process leading to
them evolved over several months. The General Counsel
alleges that the discharges were accelerated and came
some 6 weeks after the representation election as the ful-
fillment of threats allegedly made during the representa-
tion campaign The allegation of threats has not been
proven and was, indeed, denied by the alleged threatener
even after he, himself, had been discharged. In view of
all the evidence, I conclude that the discharges were
postponed, not accelerated, and that they would have
taken place in the absence of any activity protected by
the statute.
WILLIAMSON MEMORIAL HOSPITAL 45
On consideration of all the evidence of record, the
judge finds that the General Counsel has failed to prove
by credible evidence that the Respondent interrogated or
threatened its employees, interfered with any protected
activities, or discharged an employee for an act that con-
stitutes a concerted, protected activity; and that the com-
plaint should be dismissed.
CONCLUSIONS OF LAW
1. Hospital Management Associates, Inc. is an employ-
er engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act and operates a health care
institution within the meaning of Section 2(14) of the
Act.
2. United Steelworkers of America, AFL-CIO-CLC is
a labor organization within the meaning of Section 2(5)
of the Act.
3. The General Counsel has failed to establish that Re-
spondent has engaged in unfair labor practices as alleged
in the complaint.
[Recommended Order for dismissal omitted from pub-
lication.]
Jane E. Ballenger, Esq., for the General Counsel
John S. Greenebaum, Esq. and Thomas C Fenton, Esq., of
Louisville, Kentucky, for the Respondent.
Steven D. Maas, Esq., of Charleston, West Virginia, for
the Charging Party.
SUPPLEMENTAL DECISION
JOSEPH M. MAY, Administrative Law Judge. History.
The initial decision in this proceeding, dismissing the
complaint in its entirety, was issued January 22, 1982,
after 3 days of oral hearing in Williamson, West Virginia.
This supplemental decision is issued pursuant to the
Board's order of remand, dated May 20, 1982.1
The matter involves a charge filed by United Steel-
workers of America, AFL-CIO-CLC that the Respond-
ent had violated Section 8(a)(1) of the National Labor
Relations Act and had engaged in unfair labor practices
within the meaning of Section 8(a)(3) and (1) thereof. A
summary of these allegation and other jurisdictional facts
is contained in the 1982 decision and will not be repeated
here except to the extent necessary for clarity of discus-
sion.
Briefly, the Charging Party had conducted an organiz-
ing effort among the nonprofessional employees of the
Respondent corporation's proprietary hospital in Wil-
liamson. This effort culminated in a hotly contested elec-
tion in which nine challenged ballots were cast. After an
investigation, only three challenges were sustained and
the counting of the remaining six ballots overturned a
preliminary 43-to-40 result in favor of the Union and
produced instead a certification of a 46-to-43 vote against
representation. Among the employees who were subse-
In 1982, I served the Board on a temporary loan authonzed by the
Office of Personnel Management under the provisions of the Administra-
tive Procedure Act The subsequent reassignment to another agency and
the need for execution of a new loan, which was arranged through the
cooperation of both agencies and OPM, largely account for the lapse of
the time from the date of the remand.
quently discharged by the Respondent were four em-
ployees who had refused to sign a preelection petition
that three of them considered to be antiunion. These dis-
charges after the election and certain preelection activi-
ties alleged to be coercive or intimidating comprised the
focus of testimony and documentation introduced at the
hearing.
The initial decision relied heavily on documentary evi-
dence; the Board's order of remand, on the other hand,
emphasizes the importance of the testimony. Three major
findings of the Board must be addressed. First, the Board
was persuaded that the existence of an 8(a)(1) violation
requires resolution of "the conflicting testimony of
Taylor and the General Counsel's four witnesses, and a
determination of the statutory relationship between
Taylor and Griffey, and the Respondent." 2 Second, the
Board believed that the existence of an 8(a)(3) and (1)
violation requires discussion of which testimony the
judge considered "consistent with the charge" in support
of the General Counsel's prima facie case. Third, the
Board determined "that the Administrative Law Judge
[should] resolve the apparent inconsistency between his
reliance on testimony which indicates that the four em-
ployees were discharged partially for not signing a peti-
tion, and his categorical dismissal of such Section 8(a)(1)
allegations as circulating an anti-union petition and creat-
ing an impression of surveillance." A review of the oral
and documentary evidence of record has been undertak-
en in order to resolve the three dilemmas posed in the
Board's Order.3
Supervision and Agency
The initial decision omits findings relating to the su-
pervisory status of Taylor over the four discharged em-
ployees and to the status of either himself or Griffey as
agents of the Respondent. Such findings are obviously
necessary to impute to the Employer the coercion and
surveillance ascribed to the two individuals; the findings
were omitted because of the conclusion that the fact of
those individuals' coercive or other improper activity
had not been established. The omission may also have
been due to the judge's misunderstanding of the stipula-
tion entered by counsel at the hearing, whereby Re-
spondent had conceded the supervisory status of certain
of its employees named in the complaint, but did not
extend such concession to either Taylor or Griffey.
Clearly, the omission only makes for a more difficult
review of the decisional process; and the Board is enti-
2 Taylor and Griffey are, respectively, Roger Taylor, the former busi-
ness office manager at the hospital, and Richard Gnffey, its central
supply manager Taylor testified at the hearing; Griffey, who was present
at the hearing under subpoena from the General Counsel, was not called
to testify (see fn. 1, in the initial decision). The General Counsel called
Taylor as well as another official of Respondent, Gerald Tipsword, but
the four witnesses referred to in the order of remand are the four em-
ployees whose discharge is central to this dispute
3 The briefs of the parties on exceptions, answer, and cross-exceptions
were not before the judge These documents, accordingly, have not been
reviewed, nor anything else that may have occurred subsequent to the
initial decision, except, to a limited extent, such developing case law of
which the judge may have become aware
46 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tied to (and should have received initially) the supple-
mental findings that appear below.
Taylor was not highly regarded either by the employ-
ees who testified or by management personnel; but he
was the business office manager, and this dispute re-
volves around business office personnel. He was not at
the pinnacle of the organization, but he could issue
orders of limited effect. I conclude that Taylor was a su-
pervisor within the meaning of the statute.
Griffey issued orders to Taylor, and the employees re-
garded him with somewhat more respect. He attended
meetings where the corporation's position with respect
to the organization effort of the Charging Party was dis-
cussed and explained. He carried messages to Taylor and
to the director of personnel. Had he testified, Griffey's
status could have been established definitively. Even as
the record stands, without his testimony, the evidence
points in only one direction. I conclude that Griffey, too,
was a supervisor within the meaning of the statute; and,
further, that any impermissible activity on his part can be
imputed to the Respondent because of his agency rela-
tionship under the law.
These supplemental determinations of supervisory and
agency status do not, of course, affect the finding in the
interrogation, maintained surveillance, or threatened job
loss or hospital closure. There was no interrogation
beyond a discussion of the pros and cons of representa-
tion and the expression of Taylor's personal biases. The
latter was a source of amusement to his listeners who
thought, rightly as it turned out, that the new hospital
management would not keep him around very long.
Indeed, Tipsword was soon to offer Taylor the opportu-
nity to resign.
None of the dischargees was aware of any surveil-
lance; only one of them (Pope) related their conversation
with Taylor in a manner that could be interpreted as
threatening their jobs (and thus unlawfully coercive); and
the thought that their failure to sign the petition had any-
thing to do with their discharges only occurred to one,
Harlow, who by the time of the hearing had been re-
hired and, indeed, was filling the position formerly held
by the terminated Taylor. Truly, hardly any of the testi-
mony supports these charges. The observation in the
Board's order of remand, to the effect that the initial de-
cision reached this conclusion, "dispite the fact that sev-
eral of the charges remained unrefuted by Respondent,"
can only and with all due respect, be described as erro-
neous, most certainly insofar as it pertains to the charges
set forth in General Counsel Exhibit 8 (the complaint).
Although there are conflicts in the interpretations given
events by different witnesses, these are conflicts of opin-
ion; there are no significant conflicts in the various wit-
nesses' recitations of the facts. Accordingly, there are no
conflicts of credibility to be resolved in this supplemental
decision.
The Part Played by the Petition
The testimony of Pope, Harlow, and Taylor is consist-
ent with the charge that the failure of the four discharg-
ees to sign the petition played a part in their discharges.
The initial decision specifically did not rely on such testi-
mony because, standing alone, it could not support so
grave a charge. The documentary evidence, on the other
hand, was viewed as well-nigh overwhelming. In the ini-
tial decision, the documentary evidence is evaluated, as
follows:
It is apparent that roughly twice as many employ-
ees signed the petition as did not sign; and that
roughly five times as many signers as nonsigners re-
tained their jobs at the time of the hearing. Pure
chance does not produce such lopsided figures. . .
Taken together with testimony that is consistent with
the charge, the figures lead the judge to find and
conclude that the failure of the four individuals to
sign the petition played a part in their discharge.
[Emphasis added.]
The Board is empowered to reverse this finding from a
different interpretation of the testimony or for any other
good cause; but in this supplemental decision I must con-
tinue to rely heavily on the documentation where there
is some testimony consistent with the conclusion drawn
from that documentation and no attempt by Respondent,
through testimony or otherwise, to refute the conclusion
that flows so naturally from the facts. It should go with-
out saying that this failure by Respondent has nothing to
do with any testimony offered by way of simple denial.
A Matter of Interpretation
The third need cited in the order of remand, that for a
resolution of the apparent inconsistency between the ap-
parent reliance on the testimony discussed in "The Part
Played by the Petition" hereof and categorical dismissal
of some of the allegations, is obviated if no inconsistency
is shown. It is the judge's responsibility to articulate the
rationale in support of a decision with sufficient clarity
to enable the Board and the courts to understand why a
decision was reached, so that its correctness can then be
evaluated. The initial decision fails to meet this standard
because it can be interpreted to mean that there was tes-
timony relied on for the conclusion that Taylor and Grif-
fey had used coercive tactics against the dischargees, but
that the charges of such tactics should nevertheless be
dismissed. As reread now by me the initial decision was
intended to show only that there was an element of un-
lawful discrimination involved in the four discharges,
such as might be prohibited by Section 8(a)(3) of the
statute. It was not intended to convey the impression
that any testimony was relied on that might establish un-
lawful conduct prior to the representation electiOn. The
encouragement of that notion is properly laid at my the
door. What follows is my best attempt to clarify what
constitutes the preponderance of the evidence on which
the initial decision did rely.
The hard-fought organization campaign and the close,
contested election results already described preceded the
discharges but were not shown to have been accompa-
nied by interference with a protected activity. With re-
spect to the part played by the petition in the four dis-
charges, it is clear from the discussion in "The Part
Played by the Petition" of this suppleniental decision,
and from the initial decision that reliance Was placed not
on testimony, but on statistical conclusions from the ex-
WILLIAMSON MEMORIAL HOSPITAL 47
hibits of record. Those exhibits showed that failure to
sign the petition played a part in the four discharges.
That is an unlawful reason for discharge grounded in the
employees' rights to engage in an activity protected by
the statute. It does not follow that Respondent was
guilty, through Taylor and Griffey, of interrogation, cre-
ating an atmosphere of surveillance, or even of circulat-
ing an antiunion petition (for not all those who did not
want to sign thought it was antiunion; see the initial deci-
sion). The four dischargees were active and vocal sup-
porters of representation and they also refused to sign
the petition. Only subsesquently did a connection be-
tween these two sets of cirmcumstances and the dis-
charges suggest itself.
Furthermore, there was a legitimate business reason to
lay off the employees involved. It is detailed in the initial
decision, as follows:
Respondent's business office payroll exceeded man-
agement objectives month after month. Administra-
tors were replaced for failure to speed up collection
of accounts receivable and bring the number of em-
ployees down to the levels established as goals in
1979. Further, Respondent's Exhibit 12, which is its
checking-account ledger running from June 1979 to
September 1980, shows a steady decline in the
amounts collected through the efforts of the four
employees continuing through the date of their dis-
charge and for 4 months thereafter. 'The managerial
necessity for the discharges in the business office is
apparent. The manager of the business office,
Taylor, did not escape, as already noted.
The supplemental finding is therefore warranted that
Respondent had both a legitimate business reason to lay
off the collections employees and an unlawful reason
grounded in the employees' right to engage in a protect-
ed activity. Without doubt, then, the discharges present a
mixed-motive case.
Supplemental Findings
It was stated in the initial decision, relying on case law
as it had developed through the time it was written, that
in a mixed-motive case the General Counsel bears an ini-
tial burden of demonstrating a significant, improper moti-
vation. Studer Industries v. NLRB, 644 F.2d 902 at 905
(1st Cir. 1981). More recently, in NLRB v. Transportation
Management Corp., 462 U.S. 393 (1983), the Supreme
Court has approved the Board's application of this doc-
trine that the Board had first promulgated in Wright
Line, 251 NLRB 1083 (1980). The Court (462 U.S. at
401) observed that "The General Counsel has the burden
of proving these elements under § 10(c). But the Board's
construction of the statute permits an employer to avoid
being adjudicated a violator by showing what his actions
would have been regardless of his forbidden motivation.
It extends to the employer what the Board considers to
be an affirmative defense but does not change or add to
the elements of the unfair labor practice that the General
Counsel has the burden of proving under § 10(c)." The
Court then held that this allocation of the burden of
proof was clearly reasonable.I
Here, the General Counsel's burden has been satisfied
by the testimony taken together with the statistical im-
probability of the retention of so many petition signers
with so few nonsigners. It then falls to the employer to
show that it had a good reason, sufficient in itself, to
produce the discharge. Respondent has clearly shown
that it had a reason, as set forth in the discussion above.
The only question, then, is whether the discharges would
have taken place even in the absence of the protected
conduct.
As explained in the initial decision, the problem of the
staffing of the business office was apparent in 1979 and
was specifically addressed in early 1980 communications
from the corporate offices of Respondent to the adminis-
trator at Williamson. The administrator did nothing. His
successor did nothing Finally, Tipsword was dispatched
to replace the administrator and put the business office
on a sounder footing. Though the discharges came sud-
denly on Tipsword's arrival, the process leading to them
evolved over several months. The General Counsel al-
leges that the discharges were accelerated and came
some 6 weeks after the representation election as the ful-
fillment of threats alledgedly made during the representa-
tion campaign. But the allegation of threats is not sup-
ported by the record. Even after the alleged threatener
had himself been discharged, he denied ever making any
threats; as recounted by the dischargees, his statements
appear to be nothing more than amusing expressions of
his personal biases and were so understood at the time.
In view of all the evidence of record, I conclude that the
discharges were postponed, not accelerated; and that
they would have taken place in the absence of any activ-
ity protected by the statute.
On supplemental consideration of all the evidence of
record, I find that the General Counsel has failed to es-
tablish that Respondent interrogated or threatened its
employees, interfered with any protected activities, or
discharged an employee for an act which constitutes a
concerted, protected activity; and that the complaint
should be dismissed.
CONCLUSIONS OF LAW
1. Hospital Management Associates, Inc. is an employ-
er engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act and operates a health care
institution within the meaning of Section 2(14) of the
Act.
2. United Steelworkers of America, AFL-CIO-CLC is
a labor organization within the meaning of Section 2(5)
of the Act.
4 Although the amended language of Sec I0(c) refers to "the prepon-
derance of the testimony taken," the Court, m Transportation Manage-
ment, supra, addresses the same concept in the more usual form, prepon-
derance of the evidence in recognition that the concept is not limited to
oral evidence
48 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3. The General Counsel has failed to establish that Re-
spondent has engaged in unfair labor practices as alleged
in the complaint.
[Recommended order for dismissal omitted from publi-
cationl