NOTICE: This
opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive
Secretary, National Labor Relations Board,
Susan Oles d/b/a Susan Oles, DMD and Susan Strickland and Ann Williams. Cases 28–CA–21951
and 28–CA–22095
April 30, 2009
DECISION AND ORDER
By Chairman Liebman and Member Schaumber
On December 1, 2008, Administrative Law Judge Gregory Z. Meyerson issued the attached decision. The Respondent and the General Counsel each filed exceptions, supporting briefs, and answering briefs.
The National Labor Relations Board[1] has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings,[2] and conclusions and to adopt the recommended Order as modified and set forth in full below.[3]
ORDER
The National
Labor Relations Board orders that the Respondent, Susan Oles d/b/a Susan Oles, DMD,
1. Cease and
desist from
(a)
Interrogating its employees about their protected concerted activities and the
protected concerted activities of other employees.
(b) Threatening
its employees with unspecified reprisals because they engaged in protected
concerted activities.
(c) Creating an
impression among its employees that their protected concerted activities were
under surveillance.
(d)
Discharging, denying paid leave/vacation to, or otherwise discriminating
against any of its employees because they engaged in protected concerted activities.
(e) In any like
or related manner interfering with, restraining, or coercing its employees in
the exercise of the rights guaranteed to them by Section 7 of the Act.
2. Take the
following affirmative action necessary to effectuate the policies of the Act.
(a) Within 14
days from the date of the Board’s Order, offer Susan Strickland full reinstatement
to her former job or, if that job no longer exists, to a substantially
equivalent position, without prejudice to her seniority or any other rights or
privileges previously enjoyed.
(b) Make Susan
Strickland whole for any loss of earnings and other benefits suffered as a
result of the discrimination against her, with interest, in the manner set
forth in the remedy section of the judge’s decision.
(c) Make Cindy
Benallie and Ann Williams whole for any loss of earnings and other benefits for
the failure to award them paid leave/vacation as a result of the discrimination
against them, in the manner set forth in the remedy section of the judge’s
decision.
(d) Within 14
days of the date the Board’s Order, remove from its files all references to the
unlawful discharge of Susan Strickland and, within 3 days thereafter, notify
her in writing that this has been done and that the unlawful discharge will not
be used against her in any way.
(e) Preserve
and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated
by the Board or its agents, all payroll records, social security payment
records, timecards, personnel records and reports, and all other records,
including an electronic copy of such records if stored in electronic form, necessary
to analyze the amount of backpay and other earnings and benefits due under the
terms of this Order.
(f) Within 14
days after service by the Region, post at its office in
(g) Within 21
days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting
to the steps that the Respondent has taken to comply.
It is further ordered
that the complaint is dismissed insofar as it alleges violations of the Act not
specifically found.
Dated,
Wilma B. Liebman, 
Chairman
Peter C. Schaumber, Member
(seal) National
Labor Relations Board
APPENDIX
Notice To Employees
Posted by Order
of the
National Labor Relations
Board
An Agency of the
The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice.
federal law gives you the right to
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
We will not interrogate
you about your protected concerted activities and the protected concerted
activities of other employees.
We will not threaten you
with unspecified reprisals because you engaged in protected concerted activities.
We will not create an
impression that your protected concerted activities are under surveillance.
We will not discharge,
deny paid leave/vacation to, or otherwise discriminate against you because you
engaged in protected concerted activities.
We will not in any like or
related manner interfere with, restrain, or coerce you in the exercise of the
rights guaranteed to you by Section 7 of the Act.
We will, within 14 days
from the date of the Board’s Order, offer Susan Strickland full reinstatement
to her former job, or if that job no longer exists, to a substantially
equivalent position, without prejudice to her seniority or any other rights or
privileges previously enjoyed.
We will make Susan
Strickland whole for any loss of earnings and other benefits suffered as a
result of the discrimination against her, less any interim earnings, plus
interest.
We will make Cindy
Benallie and Ann Williams whole for any loss of earnings and other benefits for
the failure to award them paid leave/vacation as a result of the discrimination
against them, plus interest.
We will, within 14 days of the date the Board’s Order,
remove from our files all references to the unlawful discharge of Susan
Strickland and, we will, within 3 days
thereafter, notify her in writing that this has been done and that the unlawful
discharge will not be used against her in any way.
Susan Oles d/b/a, Susan Oles, DMD
William Mabry III, Esq., for the General Counsel.
Frederick
C. Miner, Esq. and Cyrus B. Martinez,
Esq., of
DECISION
Statement of the Case
Gregory Z. Meyerson, Administrative
Law Judge. Pursuant to notice, I heard
these cases in
On August 26,
2008, Ann Williams (Williams), an individual, filed an unfair labor practice
charge in Case 28–CA–22095, which charge alleges that the Respondent violated
Section 8(a)(1) of the Act. On August
26, 2008,2 upon motion of counsel for the General
Counsel, I consolidated both Cases 28–CA–21951 and 28–CA–22095 for trial.3
The Respondent denied the commission of the alleged unfair labor
practices in Case 28–CA–22095.4
All parties
appeared at the hearing, and I provided them with the full opportunity to
participate, to introduce relevant evidence, to examine and cross-examine
witnesses, and to argue orally and file briefs.
Based upon the record, my consideration of the briefs filed by counsel
for the General Counsel and counsel for the Respondent, and my observations of
the demeanor of the witnesses, I now make the following
Findings of Fact5
i. jurisdiction
The complaint
alleges, the answer admits, the parties stipulated, and I find that the Respondent
is owned by Susan Oles (Oles), an individual, as a sole proprietorship, doing
business as Susan Oles, DMD, with an office and place of business in
Accordingly, the
parties agree and I conclude that the Respondent is now, and at all times
material herein has been, an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
ii. alleged unfair labor practices
A. The Dispute
The dispute
between the Respondent and a number of its employees had its inception with the
delivery of a letter of complaint from five employees to the Respondent’s
principal, Susan Oles, DMD. It is the
position of the General Counsel that by submitting this letter to Oles, the
employees were engaged in protected concerted activities, as their complaints
involved the wages, hours, and working conditions of the Respondent’s
employees. According to the allegations
in the complaint, the Respondent, thereafter, violated Section 8(a)(1) of the
Act by discharging two of those employees because of their involvement with the
letter, and by also threatening and interrogating employees regarding their
concerted activities, by creating an impression that their concerted activities
were under surveillance, by denying employees paid leave/vacation benefits, and
by imposing more onerous working conditions on employees because of those
activities. The General Counsel contends
that the primary reason for the Respondent’s course of conduct was Oles’
displeasure with having received her employees’ letter of complaint.
It is the
position of the Respondent that any subsequent course of its conduct was either
unrelated to the letter of complaint, or was an effort to remedy the complaints
raised in the letter. Further, the
Respondent denies the commission of any unfair labor practices, and contends
that its discharge of two employees was for cause, unrelated to any concerted
activity engaged in by the employees.
B. The Facts
Unfortunately,
many of the facts in this case are in dispute, with considerable disagreement
among the involved principals regarding what was said or done. It sometimes seemed as if the critical events
were playing out in two separate arenas.
Often, the only way to resolve these disputes was through a credibility
analysis. In any event, what follows is
my evaluation of the facts, resolving disputes of those facts where ever
necessary.
Dr. Oles is
engaged in the business of providing dental care to patients. She has been in practice for 21 years, and
has been in her current office location since 1994. Her dental office is open Monday through
Thursday, from 8 a.m. to 5 p.m. However,
employees frequently work before and after the hours the office is open to the
public. Oles works on Wednesdays and
Thursdays. She employs as an independent
contractor dentist Dr. Terry Berkley, who provides dental services to patients
on Mondays and Tuesdays. The office is
closed on Fridays.
The office
contains five “operatories,” which are the individual areas where patients are
treated. Each operatory contains a
dental chair, dental equipment, supplies, and cabinets. While all are very similar, certain of the
operatories differ somewhat depending upon what kind of dental equipment, such
as hand pieces, are available.
Generally, the small differences will depend on whether the operatory is
primarily used by the dentists and their assistants, or by the dental
hygienists. The operatories are about 10
by 15 feet in size, with walls that are about a foot short of the ceiling. It is undisputed that at least some sounds
can be heard from one operatory to the next.
In addition to
Drs. Berkley and Oles, a number of other employees worked for the Respondent on
a regular basis. Office Manager Andrea
Diegel, an admitted supervisor, worked mainly in the front office. All the employees reported directly to her or
to Dr. Oles, who was the sole proprietor of the dental practice and, obviously,
an acknowledged supervisor. Also working
primarily in the front office as an office assistant was Jennifer Barth. Oles employed two dental hygienists, Nancy
Grace and Ann Williams, and two dental assistants, Susan Strickland and Cindy
Benallie. The Respondent gave Benallie
the title of “back office manager,” and even though she worked full time as a
dental assistant, it was the position of the Respondent that she was a
statutory supervisor. To the contrary,
the General Counsel strongly argued that Benallie was not a supervisor as that
term is defined in the Act.
The burden of
proving supervisory status authority rests with the party asserting it, which
in this case is the Respondent. Such
proof must be established by a preponderance of the evidence. Oakwood
Healthcare, Inc., 348 NLRB 686, 688 (2006); Dean & Deluca of
In the case of
Cindy Benallie, there is absolutely no credible evidence that she possessed any
of the indicia of supervisory authority as found in Section 2(11) of the
Act. To begin with, I was impressed with
Benallie’s testimony, and I found her to be highly credible. She was an intelligent witness who answered
questions in a calm, straightforward way, and who tried to be helpful
regardless of which side was questioning her.
She worked for Oles for over 9 years, and until near the end of her
employment she apparently had a good relationship with both Oles and
Diegel. Oles was highly complementary of
Benallie’s technical skills as a dental assistant and testified that she had
encouraged Benallie to consider attending dental school.
Benallie
testified at length under the direct examination of counsel for the General
Counsel. She was candid and open in her
testimony, which left no doubt that she simply did not exercise any supervisory
indicia. Further, while she cooperated
fully under cross-examination, counsel for the Respondent was unable to obtain
any admissions regarding her exercise of supervisory authority. She acknowledged that she would sometimes
assist new or temporary employees by showing them which operatory they would
work from, where supplies could be found, and about the office procedures. Also, when asked by Oles to do so, she would
assist Susan Strickland with making temporary crowns and would occasionally
review the resumes of job applicants. However,
it is clear from the totality of the evidence that Benallie helped in these
ways because of her long tenure with the practice and due to her technical proficiency. These were not indicia of supervisory authority.
While both Oles
and Diegel testified about duties that Benallie performed, which if true, would
have clearly constituted supervisory authority; their testimony was denied by
Benallie. For the reasons that I will
discuss later in this decision, I found both Oles and Diegel less than fully
credible. They seemed most inclined to
exaggerate and embellish their testimony in order to support their particular
positions. For example, I simply did not
believe Oles’ contention that Benallie effectively recommended the hiring of
new employees. There was no documentary
evidence to support such testimony from Oles and Diegel, and the testimony of
the other witness did not support them.
The fact that
Benallie’s successor, April Nall, testified that she hired employees and exercised
other indicia of supervisory authority was not probative evidence that Benallie
had previously also done so. Further,
counsel for the Respondent’s contention that “secondary” evidence, such as the
ordering of supplies and the use of the office credit card, arguably establish
supervisory authority is totally insufficient to show such in the face of
Benallie’s and other employees’ credible denials. Accordingly, I am of the view that the
Respondent has failed to meet its burden to establish supervisory
authority. I conclude, therefore, that
Cindy Benallie was not a supervisory as defined in Section 2(11) of the Act
during her employment with the Respondent.
Employees
Strickland, Grace, Benallie, Williams, and Barth had been concerned for some
time about certain work-related problems in the office. After discussions among themselves, it was
decided to prepare a letter of complaint and presented it to Dr. Oles. Nancy Grace was selected by the group to
prepare the letter. Apparently, Grace
got some of her ideas from a poster hanging in the office, which was published
by the State of
Considerable
time was spent at the hearing discussing precisely how the letter was delivered
to Oles. On reflection, it hardly seems
to matter. Oles testified that the NOC
letter was place “in” her purse, which was in her personal office. She was alerted to the letter by Strickland
as employees were departing at the end of the day. However, according to Strickland, while she
had originally intended to leave the letter for Oles “on” Oles’ purse, and had
told her so, ultimately she hand delivered the letter to Oles as she and
Benallie were leaving the office for the day.
As I said, it now seems to make little or no difference how the letter
was delivered to Oles. What is
important, of course, is what the NOC letter said.
The letter,
which is divided into three (A–C) parts, refers to “grievances” that the employees
have against Oles. The first part of the
letter (A) refers to “unethical and unprofessional conduct.” Oles is accused of “over diagnosing”
patients, performing unnecessary dental procedures, and running late, which may
result in liability issues and causes patients to become upset with the
staff. The second part of the letter (B)
refers to “hours of employment and breaks.”
It mentions that employees are frequently required to work late, and
have to do without lunch breaks. In particular,
it names Cindy Benallie, who is said to be a diabetic and needs to eat on a regular
basis. The letter criticizes Oles for “making
disparaging remarks” about employees, failing to show appreciation to employees,
failing to award merit raises, and for insulting those employees who ask for a
raise. It is suggested that “there
should be a set time for merit raises,” and also that the office hours be
changed. Further, Oles is accused of
changing employee timecards. In part
three of the letter (C), Oles is told that the “working environment has become
quite toxic,” and that the “stress level” has led to “headaches, nausea,
irritability, exhaustion, sleep disturbances, and low morale.” Finally, Oles is told that she has a “narcissistic
and selfish attitude.” She is warned
that she should give the matters raised in the letter “careful thought,” and
that “hopefully no other actions will be required.” (GC Exh. 4.)
As with almost
everything else, the parties disagree as to what happened on April 3 after the
letter was delivered. However, all agree
that Oles read the letter and then called Andrea Diegel over to read it too,
after which Oles left for the day with her daughter. According to Susan Strickland, Diegel asked
her and Cindy Benallie, “Do you always sign whatever’s put in front of
you? Who came up with this?” Strickland replied that, “
Both Strickland
and Diegel testified that within about 10 minutes, Strickland called Diegel,
who was still in the office at the front desk.
According to Strickland, she told Diegel that “
Grace testified
that near closing time on April 3 by the front desk, she and Ann Williams were
approached by Diegel who was “out of control.”
According to Grace, Diegel began to make accusations about her and ask
questions including: “This is all [your] fault. . . . [You] instigated this. . . . [Have you] done this before? . . . [Are you] concerned over anybody else but
[yourself]? . . . [Are you] concerned
about Ann Williams and her financial obligations?” According to Grace, she replied that no one
was forced to sign the letter. For the
most part, her testimony was corroborated by Ann Williams.
Diegel recalls
the conversation differently, claiming that Grace approached her and said, “I’ll
bet you’re mad at us,” and “If you’re upset, then fire me.” Diegel replied that she was not mad at her,
and that she had no authority to fire anyone, adding that she could not believe
Grace had involved a lawyer. According
to Diegel, Grace denied that the employees had any legal assistance.
Grace testified
that she solicited Williams’ agreement that she (Grace) had not held anybody’s “head
underwater” to make them sign the letter.
Grace ended the conversation with Diegel by saying that she did not want
to discuss the matter further with Diegel, as it had nothing to do with Diegel.
Apparently,
Diegel was not done talking to the signers of the letter, because according to
Jennifer Barth, she received a voice message on her phone from Diegel on the evening
of April 3. Barth had not been at
work that day because of illness. Barth
testified that Diegel stated in the message that she was upset that Barth had
signed the letter, and had not confided in her before doing so. Diegel did not specifically deny making these
statements.
Barth had one
final conversation with Diegel regarding these matters. Barth resigned from Oles’ dental practice
effective April 23. She had submitted a
resignation letter to Oles dated April 10, in which she indicated that she was
resigning in order to find full time employment that also offered a benefit package. (R. Exh. 2.)
In any event, she testified that on Monday, April 27, she went to the
Respondent’s office to return some keys.
According to Barth, Diegel approached her and said that “both Nancy
[Grace] and Sue [Strickland] had been fired over the weekend, and that if we
had not signed the letter, Cindy would’ve been paid her vacation.” Diegel did
not deny making these statements, and I find Barth credible. Barth no longer worked for Oles, was not a
named discriminatee, had no pecuniary interest in the case, and there was no
reason for her to be untruthful. She
testified in a simple, straight forward, unemotional way, and I believe her
testimony.
Oles testified
that it took her about 5 minutes to read the NOC letter because she “was so
stunned at the first few paragraphs that [she] had to read it over again to
make sure that [she] was really seeing what was written on this paper.” She was disappointed by the letter,
testifying that she had an “open door policy” in her office, and she was
surprised that the employees had not come to her first to discuss their
complaints.
Significantly,
Dr. Berkley testified that he first heard about the letter “about a week or so”
after Oles received it, when Oles called him at home to say that she was
replacing a number of the office staff that he normally worked with.
I found Dr.
Berkley to be a very credible witness.
It was clear from his demeanor and the careful way in which he answered
the questions, that he felt uncomfortable testifying, as he did not want to
take sides between the employees that he had previously worked with and the
person employing him as an independent contractor, namely Dr. Oles. However, I also got the sense that while
being very careful and exact in testifying, he was doing his utmost to testify
truthfully. His testimony was plausible,
certainly had the “ring of authenticity” about it, and was inherently
consistent with the other credible evidence of record.
Following the
delivery of the NOC letter, there was no discussion of its contents between the
signatory employees and Oles. However,
according to Oles, she made a number of efforts to remedy some of the complaints
from the employees as expressed in the NOC letter.7
Oles freely admitted that she runs perpetually late, and that it
sometimes upsets people. According to
Oles, in an effort to better service her patients who were being treated by the
hygienists, she decided to reconfigure the office. One of the complaints in the NOC letter was
that patients undergoing hygienist treatments had to wait too long to be
examined by Oles. In order to speed the
process up, Oles testified that she decided to move Nancy Grace from the back
most operatory to the front most operatory, which was closer to the operatory
where Oles worked. According to Oles,
this would enable her to know immediately when Grace’s patient was ready for
the dentist to perform an examination.
However, the General Counsel contends that moving Grace to an operatory
closer to Oles was in retaliation for Grace’s concerted activity in drafting
and signing the NOC letter.
It is important
to note that all five operators are in very close proximity to each other, with
the front and back operatories only about 15–20-feet apart, and are for the
most part interchangeable. They are all
approximately the same size, and are separated from each other by partitions
that do not rise all the way to the ceiling.
There are some minor differences, specifically that the operatories used
by the hygienists are equipped with a device known as the Titan, which the
hygienist uses as a scaler to clean teeth.
Also, the water flow to some of the hand devices is different, and, of
course, the way in which the hygienists set up their individual work stations
and position supplies is different, depending on their individual preferences.
In any event, on
April 8, near the end of the workday, Diegel, at Oles’ instruction, advised
Grace that she needed to move her belongings and supplies to the front
operatory. However, Grace took no action
to move, and, so, the following morning Oles personally went to Grace and asked
her to make the move. According to Oles,
she told Grace that she was moving Grace to improve “patient flow . . . to do
exams faster . . . and that way [Grace] would not be running behind.” However, Grace testified that Oles gave her
as a reason for the move that “[i]t seems from the letter that I can’t get to
you on time to do exams, so I’m moving you where I can see you.”
Grace still made
no effort to move, complaining that she was with a patient, so Oles instructed
Jennifer Barth to help her move. Barth
accomplished the move as Grace worked with patients, and by the end of the day
the move had been accomplished. However,
another week went by before the operatory was equipped with the Titan and fully
supplied for a hygienist. Oles testified
that the move cost her about $100 to provision the operatory properly for a
hygienist. Apparently, there was no
disruption of patient care, despite the inconvenience to Grace.
Finally, it
should be noted that at the end of the day on April 9, after Grace had been
moved to the front operatory, she presented Oles with a document to sign. Basically, this document stated Grace’s
position that the move was unnecessary, and her opinion that the move was
forced on her “to harass” her in retaliation for “participat[ing] in a
Grievance Letter signed by all the employees in the office [on] April 3, 2008.” (GC Exh. 9.)
Oles refused to sign the document, and Grace testified that Oles
crumbled it up and threw it at her. Oles
denied doing any such thing.
Oles testified
that after seeking advice from counsel, she prepared a written response to the
NOC letter. Her response was dated April
16 and addressed to the five employees who had signed the NOC letter. In her response, which was delivered to
employees with their paychecks on April 17, Oles challenged the various
assertions that the employees had made.
In summary, she stated that she maintains the “highest degree of ethical
and professional conduct” in her office; compensates employees who are required
to work late or through lunch and provides breaks as needed; and denied that
the working environment was “toxic” as claimed by the employees. Of particular interest, she reminded
employees that they were “free to leave at any time,” and also that while she
was willing to listen to any constructive criticism, she would “not tolerate
loose-cannon, slanderous gossip and remarks.”
(GC Exh. 5.)
Dr. Oles has
always provided paid vacation benefits for her employees. Depending upon their length of service with
Oles, employees earn between 1 and 3 weeks of vacation a year. Normally, employees post their vacation
schedule on a large door-sized calendar located on the side of a closet in Oles’
personal office. Typically, employees
post scheduled vacations on the calendar at the beginning of the year when they
have planned to take time off, but they also post shorter duration
leave/vacations on the calendar as soon as they realize that they will need to
take time off.8
Under the
Respondent’s original vacation policy, an employee was free to use her full
benefit at any time during the calendar year, as long as it had been fully accrued,
even if that meant taking her vacation at the very beginning of that year. For example, as a long term employee, Cindy
Benallie was entitled to 3 weeks of paid vacation a year. As the policy had previously been applied,
Benallie was free to take her 3 weeks of vacation in the month of January, even
though the full 3 weeks had only just been accrued.
Oles and Diegel
testified that because of the abuse of the original policy by a former
employee,9 Oles announced at a staff
meeting in mid-2007 that the office vacation policy would be revised to limit
the amount of accrued vacation available to use early in a calendar year. According to Oles and Diegel, the revised
vacation policy was effective in January 2008.
Under the revised policy, each employee would have accrued and have
available to use one third of her annual vacation in each of three trimesters,
which would cover the calendar year.
Diegel prepared a chart to track the accrual and use of paid vacation by
each employee. The chart broke down each
employee’s annual vacation allotment into three 4-month long trimesters so that
the chart illustrated both the amount of vacation time that had been used, and
how much cumulative vacation time remained to be used. (R. Exh. 1.)
However, the
five employees, Williams, Benallie, Strickland, Barth, and Grace, all testified,
more or less, that they were never informed about a new vacation policy during
any staff meeting, and all understood simply that employees earned between one
and 3 weeks of vacation pay a year, depending on length of service. This led to significant disagreements between
the Respondent’s managers, Oles and Diegel, on the one hand and Williams and
Benallie on the other hand.
Benallie
testified that in March 2008 she had requested 50 hours of paid leave for a
vacation scheduled to be taken the following month. She alleges that the hours were approved by
Diegel. However, Diegel denies approving
any more than 1 hour of paid vacation, as that was all that Benallie had
allegedly accrued and had available for use by the start of her vacation. On April 17, she returned from vacation and
went into the office to pick up her paycheck.
Instead of being paid for the 50 hours of vacation pay that she had
requested, Oles informed Benallie that she would receive only the 1 hour that
she had accrued and had available for use.
Oles supported Diegel’s contention that Benallie was aware of the new
policy and Diegel’s denial that she had approved 50 hours of vacation pay. Benallie argued that as a long-term employee,
it was her understanding that the policy that had been in effect when she was
hired remained in effect for her. In any
event, when she finally understood that Oles was only going to pay her for one
of the 50 hours of vacation pay that she had requested, Benallie left the
office indicating that she had no intention of returning. Thus, she quit her employment with the Respondent. It is the General Counsel’s contention that
the Respondent denied Benallie’s vacation pay in retaliation for her protected
concerted activity in signing the NOC letter.
The Respondent contends that the denial of vacation pay to Benallie was
merely a uniform application of the new vacation policy, which had allegedly
gone into effect in January.
Williams’
situation was similar. She testified
that she had made plans a year in advance and was told June 25, the day before
she was to leave, that her vacation pay was not going to be approved. According to Williams, Oles informed her that
she had not accrued and had available enough vacation time for the entire
period for which she sought to be paid.
Oles explained the new formula to her, but Williams responded that she
was “totally unaware of it,” and that she had “never seen it” before. Further, she informed Oles that she had
assumed the policy in effect at the time that she was hired had continued in
effect. In any event, she was not paid
for the entire period that she had requested.
It continues to be the General Counsel’s position that the Respondent’s
conduct in denying vacation pay to Williams was in retaliation for her
protected concerted activity. The
Respondent denies any disparate treatment of Williams, and argues that it was
merely applying the new vacation policy uniformly. Finally, it should be noted that as of the
date of the hearing, Williams was still an employee of the Respondent.10
Following the
resignation of Cindy Benallie, Oles began a search for a new dental assistant. April Nall had first worked in Oles’ office
as a temporary dental assistant on April 9.
She returned on April 2311 for a
working interview to determine whether Nall would be a good fit to join the
staff permanently. On that date she had
a discussion with Oles, who offered her full time employment. However, she had not yet made up her mind,
and told Oles she would return the following day to continue the working
interview, and would give Oles her decision at that time. According to Nall, she also had a
conversation with Sue Strickland on that date.
They were together in the sterile room when Strickland asked her if she
was doing a working interview. Nall
replied that she was, after which Strickland said, “I would think twice about
taking a position here.” Nall did not
respond, and that was the extent of their initial conversation.
Nall returned
the following day, April 24, to continue the working interview. According to Nall, she had three of four
conversations that day with Strickland.
Nall testified that in the morning, she was once again alone with Strickland
in the sterile room. Strickland asked if
she could trust Nall, and then proceed to tell her, “There have been some
problems in the office.” Strickland
mentioned that staff members had written a letter of complaint and given it to
Oles. Among her complaints, Strickland
said that she had never received a raise, and did not believe that she was
being paid what she should have been considering her job description and
duties. Further, she mentioned that a
former employee, Cindy Benallie, had quit because she was not paid her vacation
time. According to Nall, she listened to
Strickland’s complaints without comment, and the conversation ended when their
next patients arrived.
Later in the
day, in Strickland’s operatory, Strickland again told Nall, “If I were you, I
really wouldn’t take this job.” According
to Nall, Strickland just seemed very unhappy with the way things were going in
the office, and was discouraging her from taking a position there. Nall testified that still later in the day,
in the sterile room, Strickland again repeated, “I’m just telling you I wouldn’t
take the position here.” Finally, as
they were cleaning up and closing for the day, Strickland asked Nall if she had
talked with Oles yet about the job opening.
Nall testified that she was now rather annoyed that Strickland was
getting into her personal business, having asked her three or four times about
her decision. Nall replied that she was
going to be talking with Oles before leaving for the day, and a decision would
be made at that time. However, once
again Strickland said, “If it were me, I wouldn’t take it, so don’t take it.” That ended their conversation.
Susan Strickland
recalled her conversations with Nall somewhat differently. She testified that she had a conversation
with Nall in the sterile room on April 24.
According to Strickland, Nall approached her and asked, “Why is Dr. Oles
so desperate to hire me?” Strickland
responded that Oles needed to replace Cindy Benallie. Allegedly, Nall mentioned that she had overheard
Oles and Andrea Diegel discussing Benallie.
According to Strickland, she then said, “You better think hard before
you take a job.” That was the end of the
conversation. However, in response to a
question from counsel for the General Counsel, Strickland testified that this
was the only conversation she had with Nall about working for Oles.
In general, I
found Nall to be a credible witness. She
testified in a calm, believable way, and seemed to have a fairly good recall of
the events in question. I do not believe
that she would have had any particular reason to lie about the events which
occurred before she became a full-time employee. In my view, it makes no sense to think that
she invented these conversations “out of whole cloth.” Her testimony was inherently plausible and consistent
with the other credible evidence of record.
It had the “ring of authenticity” to it.
On the other
hand, I also found Strickland to be generally credible. She seemed sincere, with no indication that
she was deliberately lying. Although, as
a named discriminatee, she clearly had a strong personal and financial interest
in the outcome of the case, I did not get the sense that she was exaggerating
or embellishing her testimony. Her
testimony seemed reasonably plausible and was also consistent with the other
credible evidence of record.
In fact, the
testimony of Nall and Strickland was not all that different. Strickland acknowledged telling Nall, “You
better think hard before you take a job.”
While she only recalls the one conversation, and Nall recalls three or
four such conversations, the exact number is likely somewhere in the
middle. I believe that at least two, perhaps
three such conversations did occur.
Further, it is obvious from the testimony of both Nall and Strickland
that Strickland was trying to discourage Nall from accepting employment with
the Respondent. Strickland’s motives are
irrelevant. She was advising Nall not to
accept Oles’ employment offer. Further,
I think it likely that, as testified to by Nall, Strickland did mention certain
complaints about the office, including raises, salaries, and vacations, the
fact that Cindy Benallie had quit, and, significantly, that the employees had
written a letter of complaint to Oles.
In addition to
her conversations with Strickland, Nall also testified about some significant
interaction that she had with Nancy Grace on April 24. According to Nall, she was in an operatory
with her first patient for the day, Rolf, when Grace entered the room. Nall claims that Grace approached her from
the side and said, “That bitch wants burrs and hand pieces.” Allegedly, Grace had her mask down below her
chin, and made no effort to lower her voice, so that Nall could both clearly
hear her words as well as see her mouth move.
Nall testified that Grace was only about 6 inches from her and about 2
feet from her patient who was in the dental chair when Grace said these
words. Nall did not respond, but merely
handed Grace the burrs and hand pieces.
Grace then left the operatory.
Nall simply assumed that Grace’s reference to “bitch” was directed at
Oles, apparently because Oles was the only dentist in the office on that day,
and, therefore, the only person who could have made such a request.12
Grace specifically
denied that she had ever called Oles a “bitch,” and also denied that she had
any conversation with Nall. She testified
that on April 24, the only patient that she went to get hand pieces and burrs
for was “Debra B,” and that was in the afternoon. In that regard, counsel for the General Counsel
produced a copy of the Respondent’s “Daily Operatory Schedule” for Thursday,
April 24. (GC Exh. 7.) That document indicates the patients who were
undergoing treatment on that date, and also the precise time of their appointments. A number of witnesses offered testimony about
the document, specifically: Grace, Strickland, Williams, Oles, and Diegel. Much testimony was given about which employee
was working on which patient, in which operatory, and at what time; what
treatment certain patients were receiving; and whether it was possible for Nall
to have been working on patient Rolf at a time when Grace, following the direction
of Oles, could have come into Nall’s operatory and requested burrs and hand
pieces. Frankly, I found the document,
along with the sometimes conflicting testimony of the various witnesses, to be
highly confusing. In fact, I found that
evidence so confusing, disjointed, and contradictory, as to be essentially
meaningless. In my opinion, the document
and the witness testimony concerning it was dispositive of nothing. It neither proves nor disproves that Grace
made the comment attributed to her by Nall.
It is entitled to no weight in deciding the issue before me.
As I mentioned
above, I generally found Nall to be a credible witness. However, I can not say the same for
Grace. She testified with a “cocky” demeanor,
as if she had something to prove. Even
beyond being a named discriminatee, Grace seemed to want to make a statement.
She clearly had a lot of her personal pride at stake in the proceeding. I found her to display a hostile attitude
when answering questions from counsel for the Respondent. Her visceral dislike and animosity towards
Oles and Diegel was visible for all to see.
As such, I credit Nall and discredit Grace.
I believe that
Grace did in fact refer to Oles as a “bitch” in the presence of Nall and a
patient.13 After watching and listening to Grace
testify, it seems to me that her reference to Oles in that way would have been
well within her character, capacity, and style, considering her extreme
hostility towards Oles. She was
certainly angry enough with Oles to have abandoned decorum, caution, and common
sense, and to have used profanity in the presence of others when referring to
Oles.
Nall’s testimony
is inherently plausible when considered in the context of Grace’s hostility
towards Oles. Further, her testimony is
consistent when compared with the other credible evidence of record.14
Accordingly, I find that Grace referred to Oles as a “bitch” on April
24.
Nall testified
that on April 24 she had a conversation with Oles about whether she would
accept employment with the Respondent as a full-time dental assistant. According to Nall, she told Oles that she felt
“uneasy at taking a position” with Oles, just because of the conversations that
she had with Strickland about how “the office was so unhappy.” She mentioned to Oles that Strickland had
told her not to accept a job with the Respondent. Allegedly, Oles seemed shocked. During this same conversation, Nall informed
Oles that Nancy Grace had referred to Oles as a “bitch” while in the presence
of Nall and a patient when Grace came into Nall’s operatory to get burrs and
hand pieces.
Dr. Oles
corroborated Nall’s testimony that on April 24 Nall informed her that Sue
Strickland had told Nall not to accept an employment position in her
office. According to Oles, Nall
indicated that Strickland had also said that Oles was “unfair to [her]
employees” and “disrespected them.”
Further, Oles corroborated Nall’s testimony that on the same date, Nall
informed her that Nancy Grace had called Oles a “bitch” in the presence of a patient. According to Oles, Nall indicated to her that
she was shocked at hearing Grace refer to Oles as a “bitch” in the presence of
a patient.
Oles testified
that after hearing from Nall what Grace and Strickland had said on
April 24, she decided to consult with her attorney. After doing so, she was prepared to fire both
employees. On Friday, April 25, a day
the office was closed, Oles made her first attempts to call Strickland and
Grace. She did not reach Strickland and
so, on Sunday, April 27, she left a voice message on Strickland’s phone
advising her that she had been terminated.
Oles testified that in this message she did not inform Strickland of the
reasons for the discharge, and she did not subsequently so inform
Strickland. Similarly, on the same date,
Oles left a voice message on the home phone of Grace advising her that her
employment had been terminated. She testified
that in this message she did not advise Grace of the reasons for the discharge,
and she did not thereafter so inform Grace.
When testifying
under direct examination by counsel for the General Counsel,15 Oles indicated that she had terminated
Strickland because of the information that she had received from Nall,
specifically that Strickland had recommended that Nall not accept employment
with Oles. It was Oles’ position that by
discouraging Nall from accepting employment with the Respondent, that
Strickland was threatening her dental practice by jeopardizing her ability to
hire Nall, or potentially any other employees.
Significantly, Oles also mentioned that Strickland had hurt her business
not only by advising Nall not to accept her offer of employment, but also by
telling Nall that Oles was “unfair and treated employees with disrespect.” She characterized this conduct by Strickland
as “trying to sabotage my business.”
Oles admitted that she never confronted Strickland with Nall’s
accusations, and did not conduct an investigation of the accusations, but
merely accepted Nall’s word of what was allegedly said by Strickland.
During counsel
for the Respondent’s direct examination of Oles in his case-in-chief, she added
for the first time that she had also discharged Strickland because Strickland
had inadequate organizational and technical skills. Apparently, by this comment Oles was
referring to her contention that Strickland had difficulty preparing “temporary
caps” for patients, and was forgetful in recording patient information and in
supplying the operatories. She testified
that in the 7 months that Strickland was employed as a dental assistant, she
had to warn Strickland a number of times regarding her deficiencies. According to Oles, the reason that Strickland
failed to receive an increase in her compensation after her 90-day review, or
thereafter, was because of her poor job performance.16
Oles admitted during cross-examination from counsel for the General Counsel
that earlier, she had testified that the “only” reason she fired Strickland was
because of Strickland’s efforts to discourage Nall from accepting employment
with Oles. However, in reference to her
change in testimony in which she added other alleged reasons for terminating
Strickland, Oles said simply that she “changed [her] mind.”
When testifying
under direct examination from counsel for the General Counsel, Oles indicated
that she had terminated Grace because of the information that she had received
from Nall, specifically that Grace had referred to Oles as a “bitch” in the
presence of Nall and a patient. Counsel
for the General Counsel asked Oles whether the only reason she fired Grace was
because Grace called her a “bitch,” to which Oles responded, “Yes. That is cause enough.” However, Oles also mentioned that she had
previously issued two verbal warnings to Grace about offending patients, when
patients had allegedly jumped out of their treatment chairs while Grace was
treating them. Grace was told not to
offend patients, and that they must be comfortable with her treating them. After the second incident, Oles allegedly
told Grace to go home and get an “attitude adjustment,” and to come back to
work with a positive attitude to “treat the patients as decent human beings.” In any event, Oles admitted that she never
confronted Grace with Nall’s accusations, and did not conduct an investigation
of the accusations, but merely accepted Nall’s word of what was allegedly said
by Grace.
During counsel
for the Respondent’s direct examination of Grace in his case-in-chief, she
added for the first time that she had also discharged Grace because of a
combination of the “bitch” epithet, which was inappropriate, profane, and undermined
her practice, and because of Grace’s unsatisfactory performance history. She mentioned that Grace was “sloppy about
her work,” insulted patients, made “rude, snide” remarks about them, and had a “rattlesnake
type of personality.” Oles admitted during cross-examination from counsel for
the General Counsel that earlier, she had testified that the “only” reason she
fired Grace was because of Grace’s “bitch” comment. However, in reference to her change in
testimony in which she added other alleged reasons for terminating Grace, Oles
said simply that she “changed [her] mind.
It is the
General Counsel’s position that the Respondent discharged both Strickland and
Grace because they engaged in protected concerted activity, specifically their
involvement with drafting and signing the NOC letter. Counsel contends that the reasons originally
alleged for the terminations, namely Strickland’s and Grace’s comments to Nall,
were merely a pretext, and that the additional reasons subsequently added show
a “shifting defense,” which is patently and transparently false.
Following her
notification of discharge on Sunday, April 27, Grace decided to visit the
Respondent’s office, which she did on Monday, April 28.17
According to Grace, she returned to the office to get a copy of her
timecard. Andrea Diegel showed Grace the
timecard, after which there was some disagreement regarding Grace’s recent
hours of employment and how much money she was entitled to receive. Grace made a copy of her card and returned
the original to Diegel. There was apparently
at least one patient in the reception area near where Grace and Diegel were
talking. From the testimony of both
Diegel and Grace, it is clear that the atmosphere was heavily charged. According to Diegel, as Grace left, she said
that Dr. Oles was “a fat, cow, blind, bitch.”
As she exited, Grace allegedly slammed the door. Diegel testified that she immediately apologized
to the patient, and did so again later, after speaking with Oles about the
incident and being told to do so. Grace
testified that she had said no such thing about Oles in the presence of Diegel
or a patient.
As I have noted
in detail earlier in this decision, I found Grace not to be a credible witness. However, in my view, Diegel was also not a
particularly credible witness. She was
highly partisan, and when answering questions from counsel for the General
Counsel, she obviously tried to avoid directly answering certain questions and
instead would go off on a tangent of her own.
She was a very evasive witness.
Further, as will be discussed later in this decision, I found her
denials of certain statements attributed to her by employees to be incredible
for various reasons.
In any event, in
resolving credibility between Diegel and Grace as to this particular incident,
I find that I must credit Diegel. I believe
that Grace did refer to Oles as “a fat, cow, blind, bitch,” or words to that
effect. As I mentioned earlier, Grace’s
visceral dislike and animosity towards Oles and Diegel was clearly visible
through her testimony and demeanor for all to see. The words attributed to her by Diegel fit the
pattern of profane language used by Grace and directed towards Oles, as established
through Nall’s testimony. Having found,
for the reasons that I expressed above, that Grace on April 24, in the presence
of Nall and a patient, referred to Oles as a “bitch,” I find it reasonably
probable that she again referred to Oles in a similar way only 4 days later,
this time in the presence of Diegel and another patient. Grace was simply unable to control her
extreme hostility towards Oles.
Accordingly, I conclude that on April 28, Grace referred to Oles in the
derogatory and profane way claimed by Diegel.
C. The Concerted
Activity
Section 7 of the
Act guarantees employees “the right to self-organization, to form, join, or
assist labor organizations . . . and to engage in other concerted activities
for the purpose of collective bargaining or other mutual aid or protection. . .
.” Employees are engaged in protected
concerted activities when they act in concert with other employees to improve
their working conditions. Eastex, Inc. v. NLRB, 437
In the matter
before me, there is no doubt that the five signatories of the NOC letter,
Barth, Williams, Benallie, Grace, and Strickland, were engaged in concerted
activity. An employee is engaged in
concerted activity if the activity is “engaged in with or on the authority of
other employees and not solely on [the employee’s] own behalf.” Triangle Electric Co., supra; Meyers Industries, supra. All five employees testified that they collectively
discussed the wages, hours, and working conditions of their employment with the
Respondent. Specifically, they discussed
their treatment by Oles, the stresses it created, their hours of employment, having
to work late or without lunch or breaks, disputes involving timecards, wages,
and the overall office atmosphere. In
addition to these discussions, the employees collectively drafted a letter of
grievance, which they entitled Notice of Claim (NOC), memorializing their concerns. See
Champion Home Builders Co., 343 NLRB 671, 680 (2004). Each of the five employees signed the letter,
which was then delivered to Oles. See East Buffet & Restaurant, 352 NLRB 975
(2008).
The five employees,
who comprised the Respondent’s entire nonsupervisory staff, were clearly
engaged in concerted activity in its most obvious, basic form. However, what remains to be determined is
whether the Respondent retaliated against them for exercising their right to
engage in that protected activity.
iii. analysis and conclusions
A. Unlawful Statements
In paragraphs
4(b) and (c) of the complaint, the General Counsel alleges that Andrea Diegel
made certain unlawful statements to various employees. While the complaint mentions two dates, April
3 and 8, 2008, the evidence establishes that the conversations during which the
General Counsel contends Diegel made unlawful statements actually all occurred
on April 3. As noted earlier, the NOC
letter was delivered to Oles on Thursday, April 3. The conversations in question all occurred
shortly after Diegel and Oles read the NOC letter.
For the reasons
that I expressed earlier in this decision, I do not find Diegel to be particularly
credible. She was highly partisan, and
when testifying tried to avoid directly answering questions from counsel for
the General Counsel, was evasive, and often would go off on a tangent of her
own. Further, the statements attributed
to her by employee witnesses fit a pattern, showing her anger and hostility
towards the employees who signed the NOC letter. Based on their testimony, she appeared to be
overly emotional and quick to accuse and pass judgment on the others. As all five of the employees who signed the
letter testified regarding Diegel’s oral conduct during which she allegedly
made unlawful statements, I find their testimony credible. Their testimony is inherently plausible and
consistent as they support each others statements. Accordingly, I accept their testimony as accurate
concerning what Diegel is alleged to have said to them on April 3.
In determining
whether a supervisor’s questions to an employee about her union activities (or
by analogy concerted activities) were coercive under the Act, the Board looks
to the “totality of the circumstances.” Rossmore House, 269 NLRB 1176 (1984),
affd. sub nom, HERE Local 11 v. NLRB,
760 F.2d 1006 (9th Cir. 1985). In Westwood Health Care Center, 330 NLRB
935 (2000), the Board listed a number of factors considered in determining whether
alleged interrogations under Rossmore
House were coercive. These are referred
to as “Bourne factors,” so named because
they were first set forth in Bourne v.
NLRB, 332 F.2d 47, 48 (2d Cir. 1964).
These factors include the background of the parties’ relationship, the
nature of the information sought, the identity of the questioner, the place and
method of interrogation, and the truthfulness of the reply.
Shortly after
reading the NOC letter, Diegel asked Strickland and Benallie, “Do you always
sign whatever’s put in front of you? Who
came up with this?” These questions constitute
unlawful interrogation. The questions
were directed to the employees by their immediate supervisor, in a hostile manner,
in the Respondent’s office, and immediately following their exercise of protected
concerted activity. Not knowing what to
say, Strickland indicated the truth, namely that Nancy Grace had “brought it to
our attention.” However, Strickland was
obviously upset about having suggested to Diegel that Grace was the primary
drafter of the NOC letter, and, so, within about 10 minutes she called Diegel
to say that all the employees had signed the letter of their own “free will.”
Also, on April
3, near closing time, Diegel addressed Nancy Grace, who was with Ann Williams,
stating: “This is all [your] fault. . . . [You] instigated this. . . . [Have
you] done this before? . . . [Are you] concerned over anybody else but [yourself]?
. . . [Are you] concerned about Ann Williams and her financial obligations?” According to Grace, whose testimony I credit
in this limited regard,18 Diegel
seemed “out of control.” Here again, for
the reasons that I just indicated, Diegel was engaging in the unlawful
interrogation of Grace, and also Williams, who was present.
In addition,
Diegel’s questions also created the impression among the employees that their
concerted activities were under surveillance by the Respondent. She seemed to know, and was certainly
suggesting that Nancy Grace was the ring leader of the group. The test for whether an employer creates an
unlawful impression of surveillance is whether, under the circumstances, an
employee could reasonably conclude that her union activities (or by analogy
concerted activities) are being monitored.
Mountaineer Steel, Inc., 326
NLRB 787 (1998), enfd. 8 Fed. Appx. 180 (4th Cir. 2001). That would certainly be the impression that
Diegel would be leaving with the employees concerning her knowledge of which employee
was the leader of the effort to have their grievances addressed. The Board has held that under the Act “[e]mployees
should not have to fear that ‘members of management are peering over their
shoulders, taking note of who is involved in union activities, and in what
particular ways.’” Conley Trucking, 349 NLRB 308 (2007), quoting Fred’k Wallace & Son, Inc., 331 NLRB 914 (2000).
Further, because
of Diegel’s hostile demeanor when addressing Grace and Williams, described by
Grace as being “out of control,” and obvious animosity towards them, I conclude
that the statements made by Diegel also constituted an unlawful threat of
unspecified reprisals because the employees had engaged in concerted
activity. The only reasonable conclusion
that the employees could have gathered was that they were going to be punished
in some way for their concerted activities in drafting and presenting the NOC
letter.
Diegel was not
yet finished making threats, as she called Jennifer Barth on the evening of
April 3 and left a voice message for her.
In that message, Diegel stated that she was “upset” that Barth had
signed the letter, and had “not confided” in her before doing so. What reasonable conclusion could Barth reach,
other than Diegel intended to take her disappointment and unhappiness with
Barth out on Barth in some way. This was
again an unlawful threat of unspecified reprisals because Barth had signed the
NOC letter.
In considering
communications from an employer to employees, the Board applies the “objective
standard of whether the remark tends to interfere with the free exercise of
employee rights. The Board does not
consider either the motivation behind the remark or its actual effect.” Miller
Electric Pump & Plumbing, 334 NLRB 824 (2001). In any event, I believe that Diegel’s remarks
to employees on April 3 were clearly hostile and threatening, and the employees
would reasonably have assumed that they were made because Diegel was upset with
them for having presented Oles with the NOC letter.
Diegel’s
comments would have reasonably interfered with, restrained, and coerced the
Respondent’s employees in the exercise of their Section 7 rights. According, I find that the Respondent,
through Diegel, violated Section 8(a)(1) of the Act on April 3 when she
interrogated and threatened the employees, and created an impression among them
that their concerted activities were under surveillance, all as alleged in
paragraphs 4(b), (c), and 5 of the complaint.
B. More Onerous Working Conditions
It is alleged in
complaint paragraph 4(d) that on April 8, 2008, the Respondent imposed more
onerous working conditions on Nance Grace by separating her from other
employees and placing her under closer supervision. Paragraphs 4(e)(1) and (2) allege that on
April 9, the Respondent created an impression among its employees that their
concerted activities were under surveillance, and also that employees were
threatened by telling them more onerous working conditions were being imposed
on them for having engaged in that concerted activity. These allegations center around Susan Oles’
decision to move Grace from the back most operatory to the front most
operatory. The General Counsel contends
that this action was taken in retaliation for Grace’s involvement with the NOC
letter, while the Respondent contends it was merely an effort on Oles’ part to reconfigure
the office, and, thus, make it more efficient.
The facts as to the move itself are, for the most part,
uncontested.
One of the
complaints from the signatory employees in the NOC letter was “the unnecessary
long waits for patient treatment on Wednesday and Thursday [the days that Oles
was in the office]. The patients are
becoming angry over 15–30 minute waits for hygiene exams and because you’re not
in the office until 8:45–9:00am for your own patient’s treatment.” (GC Exh. 4.)
During her testimony, Oles freely admitted that she runs perpetually
late. Further, she testified that in an
effort to address the complaint from the dental hygienists that the patients’
unnecessarily wait for a dental exam, she decided to bring Grace from the back
most operatory to the front most. The
front operatory was unquestionably a little closer to the operatory from which
Oles worked. According to Oles, this
would allow her more timely access to the patients in Grace’s operatory,
because she would know as soon as Grace finished cleaning their teeth, and,
therefore, were ready for a dental exam.
She would have more immediate access to the patients, thus, facilitating
the process.
It is important
to note that all five operatories are in very close proximity to each other and
are for the most part interchangeable.
They are all approximately the same size, and are separated from each
other by partitions that do not rise all the way to the ceiling. Some sounds can be heard from one operatory
to another. There are some minor
differences, specifically that the operatories used by the hygienists are
equipped with a device know as the Titan, which the hygienists use as a scaler
to clean teeth. Also, the water flow to
some of the devices is different, and, of course, the way in which the
hygienists set up their individual work stations and position supplies is
different, depending on their individual preferences.
Clearly, Grace
did not want to move. However, it is
unclear to the undersigned why she so strongly opposed the move. Although counsel for the General Counsel
suggests that the move was ordered by Oles so that she could more closely observe
Grace, that did not initially appear to be Grace’s concern. In her letter of April 9 protesting the move,
Grace acknowledged that from the operatory that “the dentist works out of [,]
she can see either op[eratory] equally.”
(GC Exh. 9.)
As was noted
earlier, on April 8, near the end of the work day, Grace chose to ignore Diegel’s
order, as relayed from Oles, to move to the front most operatory. The following morning, Oles personally told
Grace to move. Further, Oles testified
that she told Grace that the move was being made to improve “patient flow . . .
to do exams faster . . . and that way [Grace] would not be running behind.” However, even if I fully credit Grace’s
testimony that Oles told her that she was being moved because, “it seems from
the letter that I can’t get to you on time to do exams, so I’m moving you where
I can see you,” I fail to see why Grace was so opposed to the move. After all, the employees complained in the
NOC that Oles was not getting to the patients quickly enough. Oles was attempting to remedy that problem by
placing the hygienist in an operatory
where Oles would more easily be able to see when the hygienist had finished
cleaning, and the patient was ready for an exam. Why was that a problem for Grace, especially
when she acknowledged in her letter that Oles could see into either operatory?
Despite counsel
for the General Counsel’s contention that the move was some sort of big
project, it appears that it was not.
Grace, still refusing to move on April 9, had all her belongings and
supplies essentially moved by Jennifer Barth on that same day. Within a week, the front operatory was
equipped with the Titan and fully supplied for a hygienist. Further, Oles’ testimony that the entire move
cost her only about $100 went unrebutted by any probative, credible evidence. Finally, there was apparently no disruption
of patient care, despite the alleged inconvenience to Grace.
I do not see
Grace’s move to the front operatory as “onerous.” She was not “separate[ed] from other employees”
as the complaint alleges. All the operatories
are in very close proximity. The
dentist, assistant, and hygienist are working in a very small area, with the
dentist and hygienist separated at most by partitions that do not go from floor
to ceiling, and do not prevent sounds from being heard outside the operatory
from which they emanated. By Grace’s own
admission, Oles could observe her from whichever operatory Grace worked. There was no credible, probative evidence
that Oles wanted Grace moved so that Oles could more closely observe Grace’s protected
concerted activity. To the contrary, the
evidence points to Oles wanting Grace moved in order to remedy one of the
employee complaints by improving the flow of the patient care, thereby reducing
the waiting time.
Oles’ efforts to
reconfigure the office by moving Grace from the back to the front operatory were
supported by a reasonable business justification. Oles’ interest in reconfiguring the office to
provide her with more immediate access to the patients having just undergone
hygienist treatments and waiting for their dental exams was understandable in
view of one of the complaints contained in the NOC letter. Further, I do not view the move as having imposed
more onerous working conditions on Grace.
See Angelica Healthcare Services
Group, Inc., 284 NLRB 844, 850 (1987) (moving an employee’s workstation a
short distance where she will continue to do the same work). It is unreasonable to suggest that merely
because Grace has been moved a very short distance, and because it took a week
for the operatory to be fully equipped for hygienist use, that the change in
her operatory was in some way “onerous.”
She was not “separate[ed] from other employees” as the complaint
alleges. Also, while the move may have
placed Grace a matter of feet closer to Oles’ operatory, it is simply hyperbole
to suggest that within the confines of this small office that Grace was now “under
closer supervision.”
The credible
evidence does not establish that Oles made the change in Grace’s operatory for
the purpose of retaliating against her because she was involved in the preparation
and presentation of the NOC letter, nor does it establish that Oles’ intention
was to place Grace under closer supervision in an effort to restrict her future
protected concerted activity. The evidence
shows that Oles was merely trying to improve the quality of patient care in her
office, with which endeavor Grace was apparently not interested in cooperating.
Accordingly, as
I have concluded that Oles’ action in changing Grace’s operatory was unrelated
to her protected concerted activity, it was not a violation of the Act. Therefore, I shall recommend that complaint
paragraph 4(d) be dismissed.
Concomitantly,
as complaint paragraphs 4(e)(1) and (2) are apparently linked to the General
Counsel’s allegation concerning the alleged onerous working conditions, and as
counsel for the General Counsel offered no independent evidence to support
these allegations, I shall recommend their dismissal as well.
C. The Discharge of Grace and Strickland
As noted in
detail earlier in this decision, on April 27, Oles left a message on Grace’s
voice mail terminating her. For the
reasons that I expressed above, I credited April Nall and discredited Grace,
concluding that Grace did in fact refer to Oles as a “bitch” on April 24 in the
presence of Nall and a patient, and that Nall so informed Oles on the same
date. It is the Respondent’s position
that Grace was fired because of that profane reference to Oles, as well as two
previous verbal warnings issued to Grace for offending patients. Of course, the General Counsel contends that
Grace was terminated because of her protected concerted activity in preparing
the NOC letter. Therefore, it is
obviously necessary for me to determine the Respondent’s motivation in
discharging Grace.
In Wright Line, 251 NLRB 1083 (1980), enfd.
662 F.2d 899 (1st Cir. 1981), cert denied 455 U.S. 989 (1982), the Board
announced the following causation test in all cases alleging violations of
Section 8(a)(3) or violations of 8(a)(1) turning on employer motivation. First, the General Counsel must make a prima
facie showing sufficient to support the inference that protected conduct was a “motivation
factor” in the employer’s decision. This
showing must be by a preponderance of the evidence. Then, upon such a showing, the burden shifts
to the employer to demonstrate that the same action would have taken place even
in the absence of the protected conduct.
The Board’s Wright Line test
was approved by the United States Supreme Court in NLRB v. Transportation Management Corp., 462 U.S. 393 (1983).
In the matter
before me, I conclude that the General Counsel has made a prima facie showing
that Nancy Grace’s protected concerted activity was a motivating factor in the
Respondent’s decision to terminate her.
In Tracker Marine, L.L.C., 337
NLRB 644 (2002), the Board affirmed the administrative law judge who evaluated
the question of the employer’s motivation under the framework established in Wright Line. Under that framework, the judge held that the
General Counsel must establish four elements by a preponderance of the evidence. First, the General Counsel must show the
existence of activity protected by the Act.
Second, the General Counsel must prove that the respondent was aware
that the employee had engaged in such activity.
Third, the General Counsel must show that the alleged discriminatee
suffered an adverse employment action.
Fourth, the General Counsel must establish a link, or nexus, between the
employee’s protected activity and the adverse employment action. In effect, proving these four elements creates
a presumption that the adverse employment action violated the Act.19
To rebut such a presumption, the Respondent bears the burden of showing
that the same action would have taken place even in the absence of the
protected conduct. See Mano Electric, Inc., 321 NLRB 278, 280
fn.12 (1996); Farmer Bros. Co., 303
NLRB 638, 649 (1991).
As I have
already found, by preparing, drafting, and signing the NOC letter, and by
discussing work related complaints with fellow employees, there is no doubt
that Grace was engaged in protected concerted activity. Of course, there is also no doubt that the Respondent
was aware of that activity. The NOC
letter was delivered to Oles on April 3, and she responded to it by letter
dated April 16. Also, in conversations
with employees, Diegel made numerous references to Grace, essentially accusing
her of being the ring leader of the complaining employees. As Grace was discharged on April 24, there is
no question that she suffered an adverse employment action.
Further, I believe
that there was a clear link or nexus between Grace’s involvement with the NOC
letter and her subsequent termination.
To begin with, as I have already found, immediately following the
delivery of the NOC letter to Oles on April 3, Diegel made statements to Grace
and other employees, which indicated her belief that Grace was the leader in
the effort to confront Oles with the employees’ complaints. I have found that these statements by Diegel
violated Section 8(a)(1) of the Act, as constituting the unlawful interrogation
of employees, creating an unlawful impression of surveillance among the
employees, and threatening employees with unspecified reprisals. Diegel was credibly described as being “out
of control,” and her animus towards Grace and the other signatory employees because
of their concerted activity was obvious to all the employees.
Also, I find it
very significant and probative that Dr. Berkley credibly testified that in a
telephone conversation with Oles “about a week or so” after she received the
NOC letter, that Oles told him that she was replacing a number of the employees
that he normally worked with. He
recalled that she including Benallie, Strickland, and maybe Grace, and that she
indicated that she was replacing them because of the NOC letter. Oles told
Of course, the
timing of Oles’ discharge of Grace is also suspect, coming only three weeks
after the delivery of the NOC letter.
While Oles initially testified that Grace was fired only because of her
use of the pejorative “bitch” when referencing her in the presence of Nall and
a patient, she later changed her testimony to say the Grace’s poor work history
also played a part in the termination decision.
While it may be true that Oles had previously counseled Grace on several
occasions about disrespecting patients, it does not appear that such past conduct
was considered by Oles prior to discharging Grace. I give such a “shifting defense” little
weight in deciding Oles’ true motivation.
Oles testified that she was very upset by Grace’s reference to her as a “bitch,”
and I have no doubt that she was quite upset.
However, the added reason for which she allegedly fired Grace, because
of her poor work history, was, in my opinion, nothing more than a pretext.
Based on all the
above, I believe that the General Counsel has met his burden of establishing
that the Respondent’s action in terminating Nancy Grace was motivated, at least
in part, by Oles’ animus towards Grace because of her protected concerted
activity. The burden now shifts to the Respondent
to show that it would have taken the same action absent the protected conduct. Senior
Citizens Coordinating Council of Riverbay Community, 330 NLRB 1100 (2000); Regal Recycling, Inc., 329 NLRB 355
(1999). The Respondent must persuade by
a preponderance of the evidence. Peter Vitalie Co., 310 NLRB 865, 871
(1993). I am of the view that the Respondent
has met this burden.
For the reasons
that I previously gave, I credited Nall and discredited Grace, and found that
on April 24, in the presence of a patient and Nall, Grace referred to Oles as a
“bitch.” Further, I believe that this
profane and offensive conduct on the part of Grace was so egregious as to have
resulted in her termination, even in the total absence of Grace’s protected
concerted activities. As counsel for the
Respondent points out in his posthearing brief, the Board has repeatedly
condemned the sort of abusive epithet used by Grace. See Aluminum
Co. of America, 338 NLRB 20, 21–22 (2002) (employee lost the protection of
the Act due to the severity of the profane outburst).
Further, where
medical facilities are involved, such as Oles’ dental office, there is a
greater expectation that employees will use civil language and conduct
themselves with a respectful demeanor.
In Diagnostic Center Hospital
Corp., 228 NLRB 1215 (1971), the Board dismissed a complaint alleging the
discharge of a union supporter, because the discharge was the result of her use
of obscenity directed towards a supervisor in a medical facility, when a patient
was present. The judge said that the
employee’s words “were a breach of the atmosphere of tranquility owed to
hospital patients by [r]espondent’s employees.”
In that regard, the judge also stated that “[A] hospital is not the
equivalent of a terminal, factory or warehouse.”
Even in cases,
unlike the one before me, where the epithet is directed to a supervisor in the
immediate context of ongoing protected concerted activity, the Board has held
certain profane language need not be tolerated.
See Cellco Partnership, 349
NLRB 640 (2007) (employee lost the Act’s protection when referring to her
supervisor as a “bitch,” even though epithet used while directly engaged in
efforts on behalf of the union); Canandaigua
Plastics, 285 NLRB 278 (1987) (union supporter properly discharged for
calling fellow employee a “bitch” and a “crybaby” during an organizing
campaign).
Upon learning
from Nall that Grace had referred to Oles as a “bitch” in the presence of Nall
and a patient, Oles was understandably extremely upset. Such language certainly has no place in a
dental office in the presence of patients who have come to the office seeking
medical treatment. At the time that the
epithet was used, Grace and Nall were working.
They were not engaged in protected concerted activity, and even if they
had been, there was simply no justification for Grace’s profane language. Oles indicated that she considered such
conduct egregious, and in my view she had the right to feel this way.
Grace’s
reference to Oles as a “bitch” was not protected by the Act. While I continue to believe that Grace’s
concerted activity in preparing and signing the NOC letter and by discussing
work related complaints with the other employees may well have been a motivating
factor, I also believe that Oles would have fired Grace upon learning of her
use of profanity directed towards Oles while in the presence of others, even if
Grace had not engaged in any protected concerted activity. Accordingly, the Respondent has met its
burden and rebutted the General Counsel’s prima facie case.
Therefore, I
shall recommend that complaint paragraph 4(h) be dismissed.
Regarding Susan
Strickland, as noted earlier in this decision, on April 27 Oles left a message
on Strickland’s voice mail, terminating her.
For the reasons that I expressed above, I found both Strickland and
April Nall reasonably credible and concluded that they had a series of
conversations at the Respondent’s office on April 23 and 24 during which
Strickland advised Nall a number of times not to accept full-time employment
with Oles. Further, Strickland informed
Nall that there were problems in the office regarding wages and vacation pay,
that the employees had written a letter of complaint to Oles, and that a former
employee, Cindy Benallie, had quit over not receiving her vacation pay.
It is the
Respondent’s position that Strickland was fired because she tried to prevent
Oles from hiring Nall as a full-time employee and also because of Strickland’s
allegedly poor organizational and technical skills. Of course, the General Counsel contends that
Strickland was terminated because of her protected concerted activity in
preparing and presenting the NOC letter.
Therefore, it is obviously necessary for me to determine the Respondent’s
motivation in discharging Strickland.
Using the
framework established in Wright Line, supra,
and its progeny, the General Counsel has been able to establish that Strickland
was engaged in an activity protected by the Act. As repeatedly noted above, Strickland was
involved in discussions with fellow employees regarding their wages, hours, and
working conditions, which discussions resulted in the NOC letter, signed by
Strickland and the other employees, and subsequently presented to Oles. Further, there is no question that Oles was
aware of this protected activity as she received a copy of the NOC letter on
April 3 and responded to it with a letter of her own dated April 16. Also, immediately following the delivery of
the NOC letter, Diegel had several conversations with Strickland and other
employees about their involvement with the letter.
Obviously,
Strickland’s discharge constitutes an adverse employment action. Its timing was suspicious, having occurred
only three weeks following Oles’ receipt of the NOC. Further, the Respondent displayed significant
animus towards the signatory employees, including Strickland. Earlier, I found that Diegel’s immediate response
to learning of the NOC letter was to violate Section 8(a)(1) of the Act by
unlawfully interrogating employees, creating an impression of surveillance
among them, and threatening them with unspecified reprisals. Diegel was credibly described as being “out
of control,” and her animus towards Strickland and the other signatory
employees because of their concerted activities was obvious to all the employees.
Further, as I
said earlier, Dr. Berkley’s testimony was credible, significant, and
probative. He had a telephone conversation
with Oles after she received the NOC letter, during which she named Strickland
as one of the employees that she was going to replace because of their involvement
with the letter. Oles made it very clear
to
It is important
to note that when first testifying under examination by counsel for the General
Counsel, Oles indicated that she had terminated Strickland solely because of
the information that she had received from Nall, specifically that Strickland
had recommended that Nall not accept employment with Oles. It was Oles’ position that by discouraging
Nall from accepting employment with the Respondent, that Strickland was threatening
her dental practice by jeopardizing her ability to hire Nall, or potentially
any other employees. Significantly, Oles
also mentioned that Strickland had hurt her business not only by advising Nall
not to accept her offer of employment, but also by telling Nall that Oles was “unfair”
and treated employees with “disrespect.”
She characterized this conduct by Strickland as “tying to sabotage my
business.”
However, during
her subsequent direct examination by counsel for the Respondent, Oles changed
her testimony and testified for the first time that she decided to terminate
Strickland not only because of what Nall had told her, but also because
Strickland was forgetful in recording patient information, in supplying the
operatories, and because she had difficulty preparing “temporary caps” for patients. Allegedly, in the 7 months that Strickland
was employed as a dental assistant, Oles had to warn Strickland a number of
times regarding her organizational and technical deficiencies, which had resulted
in Strickland’s failure to receive a raise.
When asked by
counsel for the General Counsel why the discrepancy in her testimony between
her examination by him and her examination by Respondent’s counsel, Oles said
simply that she “changed [her] mind.” However,
while I have no doubt that Oles was very upset about what Nall told her that
Strickland had said, I believe that the added reasons for which she allegedly
fired Strickland, because of Strickland’s organizational and technical deficiencies,
were nothing more than a pretext.
In my view, the
General Counsel has established by a preponderance of the evidence that
Strickland was engaged in protected activity, that Oles was aware of that activity,
that the Respondent exhibited significant animus towards Strickland because of
her protected activity, that Strickland was subsequently fired, and that there
was a link or nexus between her discharge and her protected activity. Accordingly, I conclude that the General
Counsel has made a prima facie showing that Strickland’s protected concerted
activity was a motivating factor in the Respondent’s decision to terminate
her. Tracker
Marine, supra. To rebut this
presumption that Strickland’s discharge constituted a violation of the Act, the
Respondent bears the burden of showing that the same action would have taken
place even in the absence of the protected conduct. See Mano
Electric, supra; Farmer Bros., supra.
Counsel for the
Respondent argues in his posthearing brief that “[d]issuading and discouraging
employees from working is intolerable.”
He contends that Strickland’s conduct on April 24 jeopardized Oles’
ability to hire Nall and threatened Oles’ practice. Further, he argues that the Board repeatedly
has held that quitting or urging coworkers to quit, as opposed for example to
striking, is not protected conduct even if it is motivated by opposition to the
employer’s employment practices. Counsel
then proceeds to site a number of Board cases that he contends stand for that
proposition. However, I am of the view
that the situation before me is different and the cases counsel sites are distinguishable
from the issue at hand.
Strickland was
not trying to get existing employees to quit the Respondent’s employ. Rather, she was advising a prospective
employee, Nall, to be very cautions about accepting full-time employment with
the Respondent.20 Further, she was advising Nall about certain
employment conditions in the office, specifically that employees had recently
written a letter of complaint to Oles, that Cindy Benallie had quit over Oles’
failure to give her vacation pay, that there was a problem in the office with
salary, raises, and vacations, and Strickland’s contention that she was not
being paid her correct salary, consistent with her experience and time in the
office. Reasonably, it did likely appear
to Nall that Strickland was advising her not to accept the job, and that was
what she told Oles.
Oles
acknowledged that Nall told her that Strickland had advised Nall not to accept
employment with the Respondent. However,
she added that Nall also told her that Strickland had said that Oles was “unfair
to [her] employees,” and “disrespected them.”
This obviously upset Oles greatly.
I agree with
counsel for the General Counsel’s argument in his posthearing brief that the conversations
between Strickland and Nall, a prospective employee, constituted “classic, protected
concerted activity.” It is axiomatic
that Section 7 of the Act gives employees the right to communicate with each
other regarding their wages, hours, and working conditions. Further, the Board has consistently held that
communications between employees “for nonorganizational protected activities
are entitled to the same protection and privileges as organizational activities.” Phoenix
Transit Systems, 337 NLRB 510 (2002), citing Container Corporation of America, 244 NLRB 318, 322 (1979).
As counsel for
the General Counsel argues in his brief, the topics raised by Strickland in her
conversations with Nall were the very “essence” of protected concerted activity. Strickland was concerned about the treatment
of the employees by Oles, and she sought to alert Nall, a prospective employee,
to her concerns by describing for Nall some of the recent employment issues
raised in the employees’ letter of complaint.
Although the consequences of receiving such information might have been
a decision by Nall declining to accept Oles’ offer of employment, that does not
diminish the protected nature of those communications.
The Respondent
must persuade by a preponderance of the evidence that it would have discharged
Strickland even in the absence of her protected concerted activity surrounding
the NOC letter. Peter Vitalie Co., supra.
The Respondent has failed to meet this burden.
From the
evidence previously discussed, it is clear that Oles was very upset about the
complaints made by her employees in the NOC letter. She was apparently equally, or even more,
upset about the things that Strickland said to Nall, which included Strickland
saying Oles was “unfair to [her] employees,” and “disrespected them.” Oles’ claim that she discharged Strickland in
part because of the things that Strickland told Nall on April 24, which conversation
itself constituted protected activity, obviously does not help to support the
contention that she would have fired Strickland even had she never been involved
with the NOC letter. Whether Oles fired
Strickland because of her involvement with the NOC letter or because of her
conversations with Nall, either would be a violation of the Act, as both
constituted protected concerted activity.
Accordingly, the
Respondent has failed to rebut the General Counsel’s prima facie case by any
standard of evidence. As I noted above,
the contention that Strickland was fired in part because of her poor organizational
and technical skills was nothing more than a pretext. It is, therefore, appropriate to infer that
the Respondent’s true motive was unlawful, that being because Strickland engaged
in protected concerted activity. Williams Contracting, Inc., 309 NLRB 433
fn. 2 (1992); Limestone Apparel Corp.,
255 NLRB 722 (1981), enfd. 705 F.2d 799 (6th Cir. 1982); and Shattuck Denn Mining Corp. v. NLRB 326
F.2d 466, 470 (9th Cir. 1966).
I, therefore,
find that the Respondent has violated Section 8(a)(1) of the Act by discharging
Sue Strickland on April 27, 2008, as alleged in complaint paragraphs 4(g), (i),
and 5.
D. The Denial of Vacation Pay
It is alleged in
complaint paragraph 4(f) that on about April 16, the Respondent denied accrued
paid leave to Cindy Benallie. As noted
earlier, I concluded that Benallie was not a supervisor as defined in the
Act. Despite her title as the “back
office manager,” she was primarily a dental assistant with no supervisory
authority. The parties disagree strongly
over what constituted the Respondent’s vacation policy, which dispute is discussed
in detail earlier in this decision.
Dr. Oles has
always provided paid vacation benefits for her employees. Depending upon their length of service with
Oles, employees earn between one and 3 weeks of vacation a year. Under the Respondent’s original vacation
policy, an employee was free to use her full benefit at any time during the
calendar year, as long as it was fully accrued at the time the vacation was
taken. For example, as a long-term
employee, Cindy Benallie was entitled to 3 weeks of paid vacation a year,
which, if fully accrued, could be taken at any time during the calendar
year.
Oles and Diegel
testified that because of the abuse of the original policy by a former employee,
Oles announced at a staff meeting in mid-2007 that the office vacation policy
would be revised to limit the amount of accrued vacation available to use early
in a calendar year. According to Oles
and Diegel, the revised vacation policy was effective in January 2008. Under the revised policy, each employee would
have accrued and available to use one third of her annual vacation in each of
three trimesters, which would cover the calendar year. Diegel prepared a chart to track the accrual
and use of paid vacation by each employee.
(R. Exh. 1.)
The problem with
this alleged change in the vacation policy was that the five signatory
employees all testified, more or less, that they were never informed about a
new vacation policy during any staff meeting, and all understood simply that employees
earned between 1 and 3 weeks of vacation pay a year, depending on length of
service, which, after accrual, could be used at any time during the calendar
year. There is no way to resolve this
dispute without a credibility determination.
For the reasons that I expressed earlier, I determined that Diegel was
not a credible witness.
I find Oles also
to be a less than credible witness. Her
testimony was filled with self serving statements. It was clear that she saw herself as a victim
in some grand conspiracy by her employees to harm her dental practice. From her testimony and that of Dr. Berkley it
was obvious that she was very personally offended by the NOC letter. Her written response of April 16 was
quite defensive, and she reminded her employees in that letter that, “you are
free to leave at any time.” (GC Exh.
5.) While it would be natural for
someone in Oles’ position to testify in a partisan way, I found her testimony
unreasonably emotional. On several occasions
during her testimony, she began to cry, and the hearing needed to be paused so
that Oles could compose herself.
Frankly, I did not believe that these were genuine manifestations of
emotion. Rather, I thought that Oles was
engaging in histrionics and theatrics in an effort to appear more sympathetic
and influence the outcome to the hearing.
Regarding the
Respondent’s vacation policy, I found the collective testimony of the five
employees much more credible than that of Oles and Diegel. For the most part, the testimony of the five
employees supported each other. Further,
it should be noted that when Ann Williams testified, she was still employed by
the Respondent. As an active employee of
the Respondent, Williams’ willingness to testify in contradiction to her
employer’s supervisors, Oles and Diegel, impressed me with her veracity. On this matter, the testimony of the five
employees was consistent and had the “ring of authenticity” to it. Therefore, in reference to the issue of
vacation pay, when their testimony was in conflict, I credited the employees
over Diegel and Oles.
If the
Respondent changed its vacation policy, none of the employees were aware of the
change. All five employees assumed the
policy remained the same, and they took actions consistent with that
belief. Perhaps the Respondent did
intend to change the policy at some time, and perhaps there were conversations
to that effect between Diegel and Oles, but a new policy that employees are
totally unaware of is no policy at all. Rather, it appears to me that the Respondent
simply denied Benallie her vacation pay because Oles and Diegel were unhappy
with Benallie’s involvement with the NOC letter.
Benallie
testified that in March 2008 she had requested 50 hours of paid leave for a
vacation scheduled to be taken the following month. She alleges that the hours were approved by
Diegel. However, Diegel denies approving
any more than 1 hour of paid vacation, as that was all that Benallie had
allegedly accrued by the start of her vacation.
On April 17, she returned from vacation and went into the office to pick
up her paycheck. Instead of being paid
for the 50 hours of vacation pay that she had requested, Oles informed Benallie
that she would receive only the 1 hour that she had accrued. At their meeting, Oles supported Diegel’s contention
that Benallie was aware of the new policy and Diegel’s denial that she had
approved 50 hours of vacation pay.
Benallie argued that as a long-term employee, it was her understanding
that the policy that had been in effect when she was hired remained in effect
for her. In any event, when she finally
understood that Oles had no intention of paying her for 49 of the 50 hours of
vacation pay that she had requested, Benallie left the office indicating that
she was unlikely to return.
As noted, I
credit Benallie. I believe that the
Respondent denied her vacation pay because of her protected concerted
activity. Benallie had been involved
with the other employees in the preparation of the NOC letter, which involvement
was well known to the Respondent. The
Respondent’s animus towards the employees because of their concerted activity
was clearly established through Diegel’s unlawful remarks made shortly after
the delivery of the NOC letter. Also,
the denial of Benallie’s vacation pay on April 17 occurred a mere 2 weeks following
the receipt of the NOC letter by Oles.
In any event,
the strongest evidence of the Respondent’s unlawful denial of vacation benefits
was the testimony of Jennifer Barth. As
noted earlier, Barth, a signer of the NOC letter, voluntarily quit her job with
the Respondent in order to pursue other employment opportunities. On April 27, several days after she had quit
her job, Barth returned to the Respondent’s office to return some keys. According to Barth, Diegel approached her and
said that “both Nancy [Grace] and Sue [Strickland] had been fired over the
weekend, and that if we had not signed the letter, Cindy would’ve been paid her
vacation.” When she testified, Barth no
longer worked for Oles, was not a named discriminatee, had no pecuniary
interest in the case, and there was no reason for her to be untruthful. She testified in a simple, straight forward,
unemotional way, and I believe her testimony.
I conclude that
there was no “new” vacation pay policy.
Benallie and the other employees were aware of only the original policy,
under which Benallie was entitled to 50 hours of vacation pay. On April 17, she was denied all but 1 of
those hours because the Respondent was retaliating against her due to her
protected concerted activity.
Accordingly, I find that the Respondent violated Section 8(a)(1) of the
Act, as alleged in complaint paragraphs 4(f), (i), and (5).
Ann Williams’
situation was similar.21 She testified that she had made plans a year
in advance and was told June 25, the day before she was to leave, that her
vacation pay was not going to be approved.
According to Williams, Oles informed her that she had not accrued enough
vacation time for the entire period for which she sought to be paid. Oles explained the new formula to her, but
Williams responded that she was “totally unaware of it,” and that she had “never
seen it” before. Further, she informed
Oles that she had assumed the policy in effect at the time that she was hired
had continued in effect. In any event,
she was not paid for the entire period that she had requested.
As noted above,
I credit Williams. The fact that she
testified against the interest of the Respondent, for whom she still worked,
made her all the more credible. I
believe that the Respondent denied her vacation pay because of her protected concerted
activity. Williams had been involved
with the other employees in the preparation of the NOC letter, which involvement
was well known to the Respondent. The
Respondent’s animus towards the employees was clearly established through
Diegel’s unlawful remarks made shortly after the delivery of the NOC letter.
As I have said,
there was no “new” vacation pay policy.
Williams and the other employees were aware of only the original policy,
under which Williams was entitled to the hours of vacation pay that she
requested. On June 25, she was denied
some of her requested hours because the Respondent was retaliating against her
due to her protected concerted activity.
Accordingly, I find that this action by the Respondent violated Section
8(a)(1) of the Act.
Conclusions of Law
1. The
Respondent, Susan Oles, an Individual, d/b/a Susan Oles, DMD, is an employer
engaged in commerce within the meaning of Section 2(2), (6), and (7) of the
Act.
2. By the
following acts and conduct the Respondent has violated Section 8(a)(1) of the
Act:
(a)
Interrogating its employees regarding their concerted activities and the
concerted activities of other employees.
(b) Threatening
its employees with unspecified reprisals because they engaged in concerted
activities.
(c) Creating an
impression among its employees that their concerted activities were under
surveillance.
(d) Denying paid
leave/vacation to its employees Cindy Benallie and Ann Williams because they
engaged in concerted activities.
(e) Discharging
its employee Susan Strickland because she engaged in concerted activities.
3. The above
unfair labor practices affect commerce within the meaning of Section 2(6) and
(7) of the Act.
4. The
Respondent has not violated the Act except as set forth above.
Remedy
Having found
that the Respondent has engaged in certain unfair labor practices, I find that
it must be ordered to cease and desist and to take certain affirmative action
designed to effectuate the policies of the Act.
The Respondent
having discriminatorily discharged its employee Susan Strickland, my recommended
order requires the Respondent to offer her immediate reinstatement to her
former position, displacing if necessary any replacement, or if her position no
longer exists, to a substantially equivalent position, without loss of
seniority and other privileges. My recommended
order further requires the Respondent to make Strickland whole for any loss of
earnings and other benefits, computed on a quarterly basis from the date of her
discharge to the date the Respondent makes a proper offer of reinstatement to
her, less any net interim earnings as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as computed
in New Horizons for the Retarded, 283
NLRB 1173 (1987).22
The recommended
order further requires the Respondent to expunge from its records any reference
to the discharge of Susan Strickland, and to provide her with written notice of
such expunction, and inform her that the unlawful conduct will not be used as a
basis for further personnel actions against her. Sterling
Sugars, Inc., 261 NLRB 472 (1982).
Further, the Respondent must not make reference to the expunged material
in response to any inquiry from any employer, employment agency, unemployment
insurance office, or reference seeker, or use the removed material against
Strickland in any other way.
Further, the
Respondent having discriminatorily denied paid leave/vacation to its employees
Cindy Benallie and Ann Williams, my recommended order requires the Respondent
to make them whole for those losses in earnings, plus interest as computed in New Horizons, supra.
Finally, the
Respondent shall be required to post a notice that assures its employees that
it will respect their rights under the Act.
On these
findings of fact and conclusions of law and on the entire record, I issue the
following recommended23
ORDER
The Respondent,
Susan Oles, an Individual, d/b/a Susan Oles, DMD, Phoenix, Arizona, its
officers, agents, successors, and assigns, shall
1. Cease and
desist from
(a)
Interrogating its employees about their concerted activities and the concerted
activities of other employees.
(b) Threatening
its employees with unspecified reprisals because they engaged in concerted
activities.
(c) Creating an
impression among its employees that their concerted activities were under
surveillance.
(d) Discharging,
denying paid leave/vacation to, or otherwise discriminating against any of its
employees because they engaged in concerted activities.
(e) In any like
or related manner interfering with, restraining, or coercing its employees in
the exercise of the rights guaranteed to them by Section 7 of the Act.
2. Take the
following affirmative action necessary to effectuate the policies of the Act.
(a) Within 14
days from the date of the Board’s Order, offer Susan Strickland full reinstatement
to her former job or, if that job no longer exists, to a substantially
equivalent position, without prejudice to her seniority or any other rights or
privileges previously enjoyed.
(b) Make Susan
Strickland whole for any loss of earnings and other benefits suffered as a
result of the discrimination against her, in the manner set forth in the remedy
section of this decision.
(c) Make Cindy
Benallie and Ann Williams whole for any loss of earnings and other benefits for
the failure to award them paid leave/vacation as a result of the discrimination
against them, in the manner set forth in the remedy section of this decision.
(d) Within 14
days from the date of the Board’s Order, remove from its files any reference to
the unlawful discharge of Susan Strickland, and inform her in writing that this
has been done, and that her unlawful discharge will not be used against her as
the basis of any future personnel actions, or referred to in response to any inquiry
from any employer, employment agency, unemployment insurance office, or
reference seeker, or otherwise used against her.
(e) Preserve
and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place
designated by the Board or its agents, all payroll records, social security
payment records, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay and other earnings and benefits
due under the terms of this Order.
(f) Within 14
days after service by the Region, post at its office in
(g) Within 21
days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting
to the steps that the Respondent has taken to comply.
It is further ordered that the complaint is dismissed insofar as it
alleges violations of the Act not specifically found.
Dated at
APPENDIX
Notice To
Employees
Posted
by Order of the
National
Labor Relations Board
An Agency of the
The National Labor Relations Board has
found that we violated Federal labor law and has ordered us to post and obey
this notice.
federal law gives you the right to
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
We will not do anything that interferes with these rights. Specifically:
We will not coercively question you regarding your activities with
fellow employees taken in an effort to collectively improve your wages, hours,
and working conditions.
We will not threaten you with reprisals because you have taken action
with fellow employees in an effort to collectively improve your wages, hours,
and working conditions.
We will not make it appear to you that we are watching to see whether
you are involved in efforts with fellow employees to collectively improve your
wages, hours, and working conditions.
We will not deny you paid leave/vacation because you have been involved
in activities with fellow employees taken in an effort to collectively improve
your wages, hours, and working conditions.
We will not discharge or otherwise discipline you because you have been
involved in activities with fellow employees taken in an effort to collectively
improve your wages, hours, and working conditions.
We will not in any like or related manner interfere with, restrain, or
coerce you in the exercise of your rights guaranteed you by Federal labor law.
We will, within 14 days from the date of the Board’s Order, offer
Susan Strickland full reinstatement to her former job or, if that job no longer
exists, to a substantially equivalent position, without prejudice to her
seniority or any other rights or privileges previously enjoyed.
We will make Susan Strickland whole for any loss of earnings and
other benefits resulting from her discharge, less any net interim earnings,
plus interest.
We will, within 14 days from the date of the Board’s Order, remove
from our files any and all reference to the unlawful discharge of Susan
Strickland, and notify her in writing that we have taken this action, and that
the material removed will not be used as a basis for any future personnel
action against her, or referred to in response to any inquiry from any
employer, employment agency, unemployment insurance office, or reference
seeker, or otherwise used against her.
We will make Cindy Benallie and Ann Williams whole for any loss of
earnings and other benefits, plus interest, resulting from our unlawful denial
of paid leave/vacation to them.
Susan Oles d/b/a Susan Oles, DMD