Dr. Frederick Davidowitz, D.D.S., A Professional Corp., And Dr. Martin Goldberg, D.D.S., A Professional Corp.; A Partnership

National Labor Relations Board - Board Decisions

Dec 11, 1985

277 N.L.R.B. 1046 (N.L.R.B. 1985)

1046 'DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dr. Frederick Davidowitz , D.D.S., a Professional
Corporation, and Dr . Martin Goldberg, D.D.S.,
a Professional Corporation; a Partnership and
California Federation of Union of American
Physicians and Dentists . Case 32-CA-5683
11 December 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND JOHANSEN
On 23 April 1984 Administrative Law Judge
David G. Heilbrun issued the attached decision.
The Respondent filed exceptions and a supporting
brief, and the General Counsel filed a brief in re-
sponse to the Respondent's exceptions and in sup-
port of the judge's decision.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions as amplified below,
The Respondent 2 has excepted to the judge's
determination that the Respondent violated Section
8(a)(3) and (1) by discharging employees Michael
Slesnick and Lee Porteous because of their support
for the Union. On review of the judge's decision
and the record, we are convinced that the evidence
is sufficient to establish the violations.
As more fully detailed in the judge's decision,
Dr. Slesnick, a dentist at the Respondent's dental
clinic, was instrumental in initiating and conducting
a campaign to organize the Respondent's dentists in
June 1983.3 On Saturday, 2 July, the Respondent's
managing partner Dr. Martin Goldberg ordered
the Respondent's managing director Dr. Michael
Sander to discharge Slesnick. This termination fol-
lowed a week that was characterized by Slesnick's
broad, intensified soliciting for union support at the
clinic and frequent discussions among the dentists
about the campaign. Dr. Goldberg also ordered
Dr. Sander to discharge another union adherent,
Dr. Lee Porteous, who had outspokenly stated his
support of the campaign at a union meeting 1 week
earlier and who had participated in the discussions
i The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951).
We have carefully examined the record and find no basis for reversing
the findings and to adopt the recommended Order
2 In the absence of exceptions we adopt the judge's findings that the
Respondent violated Sec 8(a)(1) by interrogating employees and solicit-
ing grievances from them
3 All dates are in 1983.
about the Union at the clinic. At the same time Dr.
Goldberg also ordered the discharge of Dr. Larry
Porteous, Lee's brother. The brothers both worked
part time at the clinic, each working a half shift to
complement the other. On 5 July, the first working
day after the discharges, Dr. Goldberg initiated a
series of group interrogations concerning the union
activity at the clinic and the dentists' dissatisfaction
with working conditions.
On the question of the Respondent's knowledge,
there is no evidence in the record providing a
direct link between the discharges and the Re-
spondent's awareness of the two employees' pro-
tected activity.4 The Respondent's position is that
it did not find out about the Union's campaign until
3 July, the day after the terminations. The Re-
spondent asserts that at that time Dr. Ronald
Shreve, a dentist employed at the clinic, called Dr.
Sander and informed him of the union drive and
Sander immediately passed on the information to
Dr. Goldberg. However, the judge inferred from
the circumstances that the Respondent was made
aware of the union drive and the supporting roles
of Slesnick and Porteous prior to the discharge de-
cisions and that their union support was a motivat-
ing factor in the decisions. The judge relied on the
timing of the discharges and the pretextual quality
of the Respondent's asserted justification for them
to establish a basis for the inference of knowledge.
We agree with the judge about the significance of
timing and the pretextual excuses in this case. We
find further that several other factors support a
finding that the Respondent had knowledge of the
activities.
The cogency of the timing factor is virtually
self-evident in the present situation. The discharges
occurred approximately 1 wgek after a union meet-
ing where both Slesnick and Lee Porteous outspo-
kenly declared their support of the campaign. The
discharges followed immediately a week of exten-
sive union soliciting by Dr. Slesnick at the clinic
and frequent discussions among the dentists, includ-
ing Lee Porteous, about the merits of the cam-
paign. Further, on the first working day after the
discharges, Dr. Goldberg began a series ofcoercive
meetings designed to neutralize the campaign.5 The
effect of the discharges on the dentists gathered at
these meetings is evident from the activity and
their dissatisfaction with conditions at the clinic,
and they asked about job security in light of the
recent terminations.
4 The complaint does not allege that Dr. Larry Porteous was unlawful-
ly discharged
5 Dr Goldberg admitted at the hearing that the purpose of these em-
ployee meetings, and his subsequent installation of a suggestion box for
the dentists, was to prevent the Union from organizing the dentists.
277 NLRB No. 110
DR. FREDERICK DAVIDOWITZ, D.D.S
In defense of Slesnick 's discharge , the Respond-
ent asserted that it was justified because of his poor
production , lack of competence , and lackadaisical
attitude, all allegedly demonstrated over an ex-
tended period of time . The Respondent further
argued that the, precipitating factor in the discharge
decision was a confrontation between Slesnick and
Dr. Donald McEnhill , the Respondent 's assistant
managing director , over Slesnick's alleged violation
of the clinic's policy concerning patients awaiting
treatment . The judge found all these reasons to be
distinctly lacking in value and pretextual. We
agree.
Concerning Dr. Slesnick's productivity, we
affirm the judge's fording that the Respondent did
not rebut Slesnick 's assertion that he regularly was
given work assignments which generated less reve-
nue for the clinic than those of some of the other
dentists . We also agree that while Slesnick's
monthly production rate was generally below the
clinic's average in 1983, he was merely among a
group of several dentists who were in the same cat-
egory. The Respondent does not assert that the
others were disciplined in any way for poor pro-
duction . In addition , we note from the record that
Dr. Goldberg testified that he gave special atten-
tion to Slesnick 's production figures after a coun-
seling session in March . However, Goldberg could
not recall the fact that the clinic's monthly records
showed substantial improvement in production by
Slesnick in April and May . Even assuming the
truth of the Respondent 's current contention that
the June record , which showed a sharp decline in
Slesnick 's production , was available in the first 2
days of July, there is no evidence that Dr. Gold-
berg relied on or was even aware of this particular
record at the time he decided to discharge Sles-
nick.
We also agree with the judge about the invalidi-
ty of the Respondent 's contentions that Slesnick
was incompetent and displayed a poor attitude.
The Respondent relies heavily on the writeups in
Dr. Slesnick's personnel file to support these con-
tentions . However , Dr. Goldberg testified that he
did not review the file before deciding on the dis-
charge, and Dr. Sander stated that he did not
check the file until after Slesnick was dismissed.
Concerning the file itself, we note that Slesnick's
overall job performance was acceptable enough for
the Respondent to have granted him a raise and a
bonus in late 1982 . Accordingly , we place little
weight on the writeups from that year which were
offered to prove incompetence and unacceptable
attitude . The few writeups that are dated in 1983
simply do not support the Respondent 's claim that
Slesnick 's attitude and competence had become a
1047
serious, continuing problem , a matter allegedly re-
sulting in constant counseling and review in the
months preceding his discharge . In addition, we
are not convinced by the Respondent 's assertion
that the total number of writeups during Slesnick's
tenure, estimated at seven at the time he was dis-
missed, fairly contributed ' to the discharge decision.
The personnel files, of two other dentists , Doctors
Chee and Waldman , ,.were introduced into evi-
dence. Dr Chee's file shows roughly the same
number of writeups as Slesnick 's over an equivalent
period of time, and Dr. Waldman 's file shows well
over 30- writeups during an equivalent period. Both
were still employed by the Respondent at the time
of the hearmg.6
Concerning the confrontation with Dr . McEnhill
which allegedly triggered Slesnick's discharge, we
affirm the judge's finding that the incident in itself
was insignificant . It is apparent that Slesnick was
merely on a permissible work break between pa-
tient assignments when Dr. McEnhill informed him
that he had two patients waiting for treatment. The
record indicated that it was not an unusual occur-
rence for the managing doctors to inform the den-
tists of waiting patients . We also note the various
discrepancies in the testimony of the Respondent's
witnesses about the date this "confrontation" oc-
curred, Dr. McEnhill 's reaction to it , and the
length , of time the two patients allegedly waited.
Further, the crux of the Respondent's assertion is
that Slesnick violated an important policy of the
clinic by keeping the patients waiting . However,
the nature of the policy is not clear in the record.
The most serious of the criticisms against Slesnick
about the length of time the patients waited was 10
minutes. The Respondent 's witnesses testified that
the policy was to attend to patients within 5 min-
utes. However , other dentists testified that al-
though attending to patients quickly was an impor-
tant policy, 10 minutes , at the least , was considered
a customary waiting period . Finally , we note that
Dr. Goldberg testified that the policy was unwrit-
ten and that Slesnick was the first dentist penalized
for violating it.
Concerning the Porteous brothers , we agree
with the judge that the Respondent's asserted
reason for their discharges also is pretextual in
character . Dr. Sander testified that rumors brought
to his attention on 2 July were the basis for the dis-
6 With regard to the documents in Dr Slesnick's personnel file, the
Respondent excepted to the judge ' s determination to "reject the bulk of
them as spurious in origin " Although the rationale and result of the
,fudge 's wholesale "rejection" are not absolutely clear to us , we agree that
the authenticity of at least some of the documents is open to dispute
However, in our review we have credited the documents with their full
value under the circumstances, and we find that they do not diminish the
pretextual nature of the Respondent's explanation of Slesnick 's discharge.
1048 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
charge decision. According to Sander, he heard
that the brothers were luring away dental assistants
from the Respondent's employ for their own devel-
oping dental practice and that they intended to
leave the clinic permanently the following week.
Earlier in the year the brothers had promised the
Respondent that they would give at least I month's
notice before leaving to attend full time to their
dental practice. When Sander related the substance
of the rumors to Dr. Goldberg, Goldberg immedi-
ately ordered their discharge.
There are a number of weaknesses and inconsist-
encies in the Respondent's position. We note that
Dr. Sander could not identify by name the two
dental assistants who allegedly approached him
with the rumors. We also note that he did not at-
tempt to verify the rumors through the Porteous
brothers, who both worked on 2 July, or through
anyone else. In addition, while Dr. Sander testified
that there were two parts to the rumors-the
luring away of dental assistants and the brothers'
intended departure the following week-Dr. Gold-
berg's testimony does not refer at all to the Por-
teous' raiding of dental assistants. Further, Dr.
Goldberg's testimony indicated that he was not
sure whether the story that was related to him had
the brothers leaving the following week without
the promised month's notice, or whether it had
them leaving "soon" with only a week's notice.
Lastly, we note that both Lee and Larry Por-
teous testified that Dr. Sander told each of them
that the reason for their discharges was that the
Respondent no longer needed part-time dentists.
Their testimony is corroborated by documents
dated 2 July found in the Respondent's personnel
files and placed in evidence. Dr. Sander, however,
consistently denied that he gave this reason for dis-
charging them, and he claimed that he knew noth-
ing about the documents.
Given all the above, it is our view that the Re-
spondent's reasons for the three discharges are
clearly pretextual. We find that the pretext factor
and the timing of the discharges together form a
persuasive initial foundation for inferring that the
Respondent knew of the protected activity of Sles-
nick and Lee Porteous prior to their terminations.
In addition to these factors on which the judge
relied, we note that certain characteristics of the
dentists' working environment at the time of the
union campaign further support the inference of
the Respondent's knowledge.
The group targeted by the union organizers con-
sisted of about 20 dentists, with 10 working on
each of the Respondent's two shifts. The dentists,
the Respondent's only professional employees,
made up about 10 percent of those working at the
clinic. Each dentist was assisted by either one or
two dental assistants , depending on workload. It is
apparent that the Respondent's other employees
worked in areas of the clinic separate from the
dental treatment area.
The dentists' day-to-day procedure was charac-
terized by frequent interaction, both professional
and casual, with the managing dentists.' Each of
the dentists consulted individually with a managing
doctor, either Sander or McEnhill, concerning pa-
tient care at least once and as often as four times a
day. The doctors were permitted informal breaks
as the schedule of incoming patients allowed.
These breaks were normally taken in the doctor's
lounge, where a desk was located for use by Doc-
tors Goldberg, Sander, and McEnhill. The dentists
and the managing doctors often engaged in social
"chit-chat" during these informal breaks.
A number of witnesses , including Dr. Goldberg,
testified that the managing doctors were aware of
an active "rumor mill" or "grapevine" existing
among the dentists and their assistants . It was ap-
parently not uncommon for a personal or social
matter, initially discussed between one dentist and
another, or between a dentist and his assistant, to
spread through the treatment area and come to the
attention of management. Dr. Goldberg also testi-
fied that the managing doctors relied in part on
"feedback" from dentists and dental assistants in
evaluating personnel matters. The feedback proc-
ess, which occurred on an irregular basis, was used
to gauge a dentist's performance, care of patients,
and attitude."
The factors above indicate that the transfer of in-
formation about the dentists to management was a
common occurrence in the work environment
where the organizing drive took place. The record
makes quite clear that the union campaign was the
dominant topic of conversation among the dentists
in the week preceding the discharges and, as the
judge noted, by 2 July its intensity had apparently
polarized the dentists into groups either supporting
or opposing the Union. Although Dr. Slesnick indi-
cated that in soliciting for the Union at the clinic
9 Doctors Sander and McEnhill were responsible for the direct super-
vision of the dentists . Each was assigned to one or the other of the Re-
spondent's two shifts Dr. Goldberg was present at the clinic 2 days a
week. His duties involved indirect supervision of the dentists , policy mat-
ters, and broad oversight of the clinic's business. He occasionally engaged
in direct supervision of the dentists.
It is apparent that the Respondent 's nonprofessional employees were
directly supervised by persons other than the managing doctors above.
8 We note the Respondent's asserted reliance on both the rumor mill
and the feedback process in making the discharges which are at issue
here: Drs. Sander and Goldberg testified that rumors were the basis for
firing the Porteous brothers, and Dr. Goldberg testified that he consid-
ered feedback from members of the staff in reaching his decision to dis-
charge Slesnick.
DR. FREDERICK DAVIDOWITZ, D.D.S.
he took care to avoid being observed by the man-
aging doctors, it is also clear that he solicited at
random, approaching dentists known to be opposed
to unionization and on close terms with the manag-
ing doctors. In this regard we think it significant
that the Respondent admits that it learned of the
union drive from Dr. Ronald Shreve, one of the
dentists who had declared his opposition to the
dentists' unionizing . However, we agree with the
judge that the Respondent's explanation of when
and specifically how it learned was contrived and
not worthy of being credited.9
The Board has not hesitated to infer a respond-
ent's knowledge of employees' protected activity
where the circumstances reasonably warrant such a
finding, and the circuit courts have regularly af-
firmed the Board in this area . See, e.g., Famet, Inc.
v. NLRB, 490 F.2d 293 (9th Cir. 1973); Metro
Center, Inc., 267 NLRB 288 (1983); Baja's Place,
Inc., 263 NLRB 881 (1982), enfd. 733 F.2d 416 (6th
Cir. 1984); Dutch Boy, Inc., 262 NLRB 4 (1982),
enfd. sub nom. Artra Group, Inc. v. NLRB, 730
F.2d 586 (10th Cir. 1984). Based on all the relevant
circumstances present in this case, we infer that the
Respondent was aware of Slesnick's and Lee Por-
teous' support of the Union at the time they were
discharged. The factors on which the judge
relied-the timing of the discharges and the pretex-
tual character of the Respondent's reasons-pro-
vide the most significant support for the inference.
The factors related to the dentists' working envi-
ronment-the interaction between dentists and
management, the rumor mill, and the Respondent's
reliance on feedback from its employees-serve to
enhance the reasonableness of inferring the Re-
spondent's knowledge.
The other elements necessary to establish that
the Respondent violated Section 8(a)(3) and (1) by
its discharge of Drs. Slesnick and Lee are suffi-
ciently documented in the judge's decision. The
Respondent's explanation of the discharges, given
their pretextual quality, obviously do not overcome
the General Counsel' s case . Therefore, in accord-
ance with our opinion above and the judge's deci-
sion , we will adopt the recommended Order. 10
9 Dr Sander's testimony indicated that Dr . Shreve's sole purpose in
calling on 3 July was to inform him of the union campaign ; according to
Sander, Shreve was "very much concerned about it " Dr Shreve testified
that his purpose in calling Dr. Sander was to discuss a golf outing and
that he mentioned the union campaign as an incidental matter of no spe-
cial urgency . We also note that Dr. Shreve testified that he first found
out about the campaign on 24 June and that subsequently he worked at
the clinic with Dr- Sander until Thursday in the week leading up to the
discharges.
10 We make no legal finding with respect to Dr Larry Porteous' dis-
charge . He was named as an unlawful dischargee in the original charge
filed with the Board in this case At his request his name was withdrawn
and an amended charge was filed
1049
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Dr. Freder-
ick Davidowitz, D.D.S., a professional corporation,
and Dr. Martin Goldberg, D.D.S., a professional
corporation; a partnership, Oakland, California, its
officers, agents, successors, and assigns, shall take
the action set forth in the Order.
Robert Remar, Esq. and Daniel F Altemus Jr., Esq., for
the General Counsel.
Charles B. Waud, Esq., of Oakland, California, for the
Respondent.
DECISION
STATEMENT OF THE CASE
DAVID G. HEILBRUN, Administrative Law Judge. This
case was tried at Oakland, California, on January 12, 13,
and 19, 1984.1 The original charge was filed by Califor-
nia Federation of Union of American Physicians and
Dentists (the Union), on July 6 and the complaint was
issued August 25, The primary issues are whether Dr.
Frederick Davidowitz, D.D.S., a Professional Corpora-
tion, and Dr. Martin Goldberg, D.D.S., a Professional
Corporation; a Partnership (Respondent),2 (a) unlawfully
interrogated its employees regarding their union sympa-
thies and activities, (b) solicited complaints and griev-
ances from its employees in order to undermine their
support for the Union by utterances of its agents and by
placing of a suggestion box in the facility, and (c) discri-
minatorily discharged Dr. Michael Slesnick and Dr. Lee
(Leland) Porteous because they joined or assisted the
Union or engaged in other protected concerted activities,
in violation of Section 8(a)(1) and (3) of the National
Labor Relations Act.
On the entire record, including my observation of the
demeanor of witnesses, and after consideration of briefs
filed by the General Counsel and Respondent, I make
the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is a partnership formed under the laws of
California, which maintains an office and place of busi-
ness in Oakland, California, where it has been engaged in
the provision of dental health services to the general
public. During a representative past 12-month period Re-
spondent derived gross revenues in excess of $500,000 in
the course and conduct of its business operations, while
purchasing and receiving goods or services valued in
excess of $5000 which originated outside California. On
1 All dates and named months are in 1983, unless otherwise indicated
a The name of this Employer appears as formally amended at the hear-
ing The case was previously identified as "Union Health Services"
which is in fact merely nomenclature for the real property (office build-
ing) in which the business is carried out
1050 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
these admitted facts I find that Respondent is an employ-
er engaged in commerce within the meaning of Section
2(6) and (7) of the Act, and otherwise that the Union is a
labor organization within the meaning of Section 2(5).
II. ALLEGED UNFAIR LABOR PRACTICES
A. Basis of Analysis
Respondent caters to persons having dental insurance,
operating with 16 to 20 professional dentists, a group of
registered dental assistants, and various clerical or sup-
porting employees. Services are provided from 7 a.m. to
9:30 p.m., Monday through Thursday, and from 8 a.m. to
4:30 p.m. on Friday and Saturday. Dentists' shifts during
the extended days are either 7 a.m. to 3:30 p.m. or 2 p.m.
to 9:30 p.m.; however, the practice of doubling over
occurs, as needed, as desired, or a combination of the
two. Dr. Martin Goldberg, an owner residing in south-
ern California, normally visits the business on Monday
and Tuesday, while co-owner Dr. Frederick Davidowitz
appears irregularly at other times. Dr. Michael Sander,
himself a professional dentist, is the managing director,
with former Staff Dentist Dr. Donal McEnhill assisting
from June onward as successor to Dr. Trauty Grau.
Michael Slesnick was employed as a dentist in Novem-
ber 1981, a point at which he had 6 years' professional
experience following graduation. Lee Porteous was em-
ployed as a dentist in December 1981 following profes-
sional service with the United States Public Health Serv-
ice, and, in the process, joining his twin brother, Dr.
Larry Porteous, who had been one of Respondent's staff
dentists since 1979. Slesnick worked continuously until
July except for a 10-week leave of absence from Novem-
ber 1982 into January for recuperation from hepatitis.
The Porteous brothers established their own private
dental practice in a neighboring county, and by early
1983 ' were each working on an approximate halftime
basis with Respondent. They both credibly testified to
conversations and understandings with Sander whereby
they would extend at least 30 days' notice to Respondent
before eventually leaving to practice dentistry exclusive-
ly on their own.
Around late May, Slesnick had spoken to his col-
league, Dr. Handelsman, about the prospects of unioniz-
ing, and from this a meeting followed that month with
Luella Hanberry, the union representative, and a few in-
vited dentists of the staff. A larger gathering occurred on
June 24 at a restaurant as part of Handelsman's going
away party, and at this gathering Hanberry appeared to
describe the benefits of her organization. In the course of
this gathering, Lee Porteous made a pronouncedly out-
spoken statement to the group in which he identified
himself as a supporter of the Union and as willing to
remain on the staff as long as it was necessary to assist in
its organizational objective. Authorization cards had
been produced at an earlier meeting on June 15, and
Slesnick took a supply into work where he unobtrusively
solicited signatures from fellow dentists. The last meet-
ings of this series, by which time Slesnick had promi-
nently assumed the lead role in organizing , occurred on
Thursday, June 30, and Friday, July 1.
Saturday, July 2, was a day of relatively few patients.
Near quitting time Sander called Lee Porteous aside and
said he was terminating the brothers. Shortly thereafter,
about 3:50 p.m., he also told Slesnick his services were
no longer required by Respondent. Goldberg testified
that he had directed Sander to take these actions after (1)
Slesnick had failed to show improved productivity or to
adjust his lackadaisical attitude toward handling patient
flow, and (2) rumors had arisen that the brothers were
not intending to work beyond the following week. Gold-
berg also testified that indeed he had been dissatisfied
with Slesnick's level of professional performance, with
his errors in judgment, and with a lackluster attitude. He
had counseled Slesnick on March 21 particularly about
production, and described receiving a telephone call
from McEnhill on July 1 in which Slesnick was de-
scribed as having been found loitering in the prosthetic
laboratory with patients waiting in his treatment (opera-
tory) rooms. Goldberg reflected on this information and,
on deciding to discharge Slesnick, made the implement-
ing call to Sander on July 2. In this conversation Sander
mentioned having heard from certain dental assistants
that the brothers were proselytizing their ranks for the
outside practice and planning to abruptly leave Respond-
ent's employ. This new advice angered Goldberg who
made an admittedly rash decision to order both brothers
also terminated. Goldberg denied knowing any union ac-
tivities prior to July 3, testifying further how on that
morning Sander had telephoned him to say that union
organizing was reportedly underway as told to him by
Staff Dentist Dr. Ronald Shreve. This was upsetting to
Goldberg who began contacting individual dentists to ar-
range a staff meeting for July 5.
Staff Dentist Dr. Stanley Fong testified that he was
reached by telephone on July 3 by Goldberg, who
seemed disturbed and asked why a union seemed neces-
sary. Fong recalled staff meetings on both July 5 and 6
in which Goldberg pressed the assembly of dentists to
give him reasons for their seeming dissatisfaction with
employment at the facility. As Goldberg stated would be
done, a suggestion box was then provided for employees
to use. Dr. Wendell Fudgen credibly corroborated Fong
in regard to happenings at these meetings, and to an un-
usual phenomenon on July 2 of several dentists, each re-
portedly disinterested in the Union's campaign, repeated-
ly congregating together and guardedly whispering.
B. Analysis
The General Counsel has presented a sufficiently con-
vincing amount of circumstantial evidence to warrant an
inference that both Slesmck and Lee Porteous were dis-
charged for pretextual reasons. Respondent's countervail-
ing explanations in both cases are inherently implausible
and based on evidence that is specifically discreditable or
unpersuasive about the ultimate issue of alleged unlawful
discrimination. For this reason I find that the union ac-
tivities engaged in by Slesnick, and constructively imput-
ed to Lee Porteous, were a motivating factor in their ter-
minations which have not been demonstrated to be ac-
tions that Respondent would have taken in the absence
of such protected conduct.
DR FREDERICK DAVIDOWITZ, D.D.S.
The principal element present in this case is timing,
and I am satisfied that it is the telling indicator of the
actual reason for discharging Slesnick and the derivative
reason that Goldberg's runaway anger visited on Lee
Porteous. Slesnick had progressively become chief facili-
tator in advancing the Union's organizing campaign.
Throughout the June 27 to July 1 workweek he was es-
calating his lead role in soliciting adherents and spread-
ing his exposure in this role beyond the early trusted
confidants. By late that week his activities had lost much
of their clandestine nature and were apparent throughout
the professional staff, whose outlook, as credibly testified
by Slesnick, Fong, and Fudgen, was that of jittery appre-
hension.
I am particularly impressed with the candor of Fud-
gen's testimony in which he meticulously and convinc-
ingly described the untoward whisperings on July 2 be-
tween colleagues Drs. Hughes, Meierhenry, and Glerum,
all objectively thought to be against the Union on a scale
of mild disinclination to definite opposition. This is cir-
cumstantial evidence of significant quality, for it shows
that a definite tension permeated the work setting as pro-
fessional staff polarized in the face of Slesnick's activism.
Another intriguing circumstance is that of Sander's un-
usual action in offering early departure on July 2 to
Fong and Fudgen, for although this particular Saturday
was one of light patient flow, it is more appropriately
presumed that Respondent would want these particular
two persons off the premises in light of what would
unfold.
I associate the significant timing of these two dis-
charges to Goldberg's peculiarly averse view of the
prospect that his professional staff might explore collec-
tive bargaining. His listing of "anger," "hurt," "confu-
sion," and "disbelief' as an admitted reaction to knowl-
edge of union activities, coupled with his own mental
distinguishing of an abstract entitlement to organize by
nonprofessionals, as opposed to professionals, compels
the inference that he actually harbored an animosity to
unionism that translated into impermissibly ridding him-
self of the immediate personalities who reflected this un-
endurable consequence. Such an inference is amply but-
tressed by his followup activities during the staff meet-
ings of July 5 and 6, a particular significance of which,
as resolved issues of this litigation, will be treated below.
I impute to Respondent that by July 2 its managing
agents and owner had learned of Slesnick's action, and
Lee Porteous' supportive inclination, for it would be in
artificial disregard of all probabilities of the fact situation
to do otherwise. This is particularly true when Respond-
ent's explanation of how it did obtain such knowledge
(not until July 3) is analyzed. Here the purported origi-
nator was Shreve, who testified that he telephoned
Sander on July 3 to make golfing plans, and mentioned
in passing that union activities were underway in the fa-
cility. Aside from an unconvincing demeanor causing me
to discredit Shreve, I note that his testimony is starkly
contradictory to Sander, who is similarly unpersuasive in
his testimony as a whole, but here particularly, adds the
telling variation that Shreve's main purpose in the
Sunday morning contact was to advise him of union ac-
tivities afoot. I find this entire component of Respond-
1051
ent's defense to be a disingenuous effort to legitimatize
what is patently unlawful. Had Shreve truly been inquir-
ing about golfing plans, this would have to have stood
out prominently in Sander's mind as the chief theme of
ordinary day-off comraderie. The disparity in their ver-
sions is a defect of such magnitude that I discredit both
witnesses on the point, and conclude that this explana-
tion is a sham devised only to attempt an explaining
away of such precipitate action by an employer and to
claim lack of pertinent knowledge at least a day earlier.
Respondent's brief highlights the validity of this conclu-
sion, in that although arguing too little time existed in
the busy operation for an "exchange of rumor or gossip"
(Tr. 17), it is countervailingly claimed with respect to
the issue of Lee Porteous' discharge that Sander "heard
a rumor circulating through the clinic" and "also heard"
of a separate facet of the Porteous brothers supposed in-
tentions. Patently Respondent cannot have its argument
apply in self-contradicting fashion.
On this reasoning I find the General Counsel to have
made out a prima facie case and, on considering the vari-
ous points made additionally by Respondent in defending
the allegations, I reject them individually and collective-
ly. Slesnick had functioned satisfactorily as a treating
dentist, the predominant breakdown of professionals
under contract with Respondent, the others being the su-
pervisory managing dentist and the examining or diag-
nostic dentist of each shift. His double shifting and pro-
ductivity, as expressed in dollar revenue to Respondent
for dental services performed each day, showed a gener-
ally average profile for the first year of his employment.
He received pay increases and two bonus rewards during
his employment preceding a concededly evident tapering
off in double shifting following illness. The counseling
session by Goldberg did in fact occur; however, Re-
spondent has not dispelled Slesnick 's assertion that the
particular patients referred to him were more typically
needful of less lucrative services such as fillings rather
than the more remunerative modes of crown and bridge
work. In this sense there is first and foremost no con-
vincing showing that Slesnick was unacceptably low in
production, for his assertion that services presented in his
typical patient flow were comparatively unremunerative
was not rebutted. More importantly he was, under the
best view of Respondent' s case, merely among a group
of five who constituted the lowest quartile of producers,
none of the other of whom experienced any adversity.
Respondent produced a group of records from Slesnick's
personnel file which purported to show unsatisfactory
performance of dentistry. These predominate in 1982,
and more recent ones, with two exceptions, were credi-
bly disputed by Slesnick about their authenticity. Nota-
bly these simple records do not, as in a comparable look
at contents of Staff Dentist Dr. Chee's personnel file,
show the five-digit patient chart number and are suspect
to the point that I reject the bulk of them as spurious in
origin . A description of overfill experienced by patient
Cathy Yu, which led to pending litigation against Re-
spondent, was conceded by Slesnick. However, it is not
contended that he was expected to be perfect, and I must
view this admitted single case of treatment error as a
1052 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
predictable fact of high-volume dental practice. The
second writeup is that of McEnhill recording that on
June 29 he had figuratively chased Slesnick back from
the laboratory, in which he was lingering, to resume
needful attention on waiting patients. Slesnick has credi-
bly denied the thrust of this criticism and I accept his
version of the episode over McEnhill's, believing it to be
a mere inconsequential moment of an informal, brief
workbreak phasing out and not a demonstration of sloth
or defiance as McEnhill would depict. In this sense the
basic incident on which Respondent has constructed its
rationale of why Slesnick was discharged lacks sub-
stance.
A final important factor is that Slesnick was credibly
characterized by Fong, Fudgen, and Lee Porteous as a
competent dentist of normal dedication to patient care
and these opinions are not offset by the self-serving eval-
uation of Respondent's witnesses, particularly when there
is every appearance that these are mere afterthoughts. I
focus particularly on Gloldberg's testimony that he, was
so receptive to Slesnick as to once grant him a pay in-
crease solely on an assurance of increased future value,
yet he overlooked the fact that both Sander and Grau
had not recommended tangible, corrective action against
Slesnick over a 1-1/2 year period. Instead, in making
such a critical decision, as had been done in so few past
cases at this facility, he relied on a subjective report of
dubious weight from the newly functioning McEnhill,
coupled with a failure to give rudimentary scrutiny to
the claimed contents of Slesnick's personnel file.
I am satisfied that the totality of evidence in this case
clearly shows Respondent has advancd pretextual rea-
sons for these terminations, attempting in the process to
disguise its true motivation of removing the principal
union organizer from its professional work force. Fur-
ther, there is no logical way to separate the Lee Por-
teous case, for his credible description of expecting at
least a month's notice of termination, and having been
given no indication of impending departure from Re-
spondent's part-time employ, was utterly unrebutted.
Aside from the frailties of testimony by Respondent's
witnesses respecting the supposed intentions of the Por-
teous brothers, its own explanation is self-contradictory
in the sense that the claimed interdiction of their plans
does not square with official notations of record that
they were released because part-time dentists were no
longer desired. This inconsistency simply illustrates still
more the entire tenor of Respondent's implausible expla-
nation for both discharges at issue.
The individual 8(a)(1) allegations of the complaint are
of obvious merit, taken from the credited testimony of
Fong and Fudgen, as well as Goldberg's own version of
what he said to assembled dentists. In the meetings of
July 5 and 6, blatant attempts were made to menacingly
inquire about employee attitudes toward unionism and to
ferret out dissatisfaction in a manner that would be of
chilling effect on, their rights of,self-organization. This
observation applies specifically to the prompt placing of
a suggestion box under fast-breaking circumstances of
the early July period.
CONCLUSIONS OF LAW
1. By discriminatorily discharging Michael Slesnik and
Lee Porteous on July 2 because of their support for the
Union, Respondent engaged in unfair labor practices af-
fecting commerce within the meaning of Section, 8(a)(1)
and (3) and Section 2(6) and (7) of the Act.
2. By interrogating employees and soliciting griev-
ances from them during July, Respondent has further
violated Section 8(a)(1) and Section 2(6) and .(7) of the
Act.
REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I order it to cease and desist and
to take certain affirmative action designed to effectuate
policies of the Act.
Respondent having discriminatorily discharged Mi-
chael Slesnick and Lee Porteous, it must offer them rein-
statement and make them whole for any loss of earnings
and other benefits, computed on a quarterly basis from
date of discharge to date of proper offer of reinstate-
ment, less any net interim earnings, as prescribed in F.
W. Woolworth Co., 90 NLRB 289 (1950), plus interest as
computed in Florida - Steel Corp., 231 NLRB 651 (1977).
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed3
ORDER
The Respondent, Dr. Frederick Davidowitz, D.D.S., a
Professional Corporation, and Dr. Martin Goldberg,
D.D.S., a Professional Corporation; a Partnership, Oak-
land, California, its owners, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against
any employee for supporting California Federation of
Union of American Physicians and Dentists, or any other
union.
(b) Interrogating employees about protected concerted
activity or union activities and soliciting grievances from
them.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer Michael Slesnick and Lee Porteous immedi-
ate and full reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other rights
or privileges previously enjoyed, and make them whole
for any loss of earnings and other benefits suffered as a
result of the discrimination against them, in the manner
set forth in the remedy section of the decision.
3 If no exceptions are filed as provided by Sec 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
DR. FREDERICK DAVIDOWITZ, D.D.S 1053
(b) Remove from its files any reference to the unlawful
discharges and notify Michael Slesnick and Lee Porteous
in writing that this has been done and that the discharges
will not be used against them in any way.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(d) Post at its facility in Oakland, California, copies of
the attached notice marked "Appendix."4 Copies of the
notice, on forms provided by the Regional Director for
Region 32, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
4 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
APPENDIX
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these protect-
ed concerted activities.
WE WILL NOT discharge or otherwise discriminate
against any of you for supporting California Federation
of Union of American Physicians and Dentists, or any
other union.
WE WILL NOT interrogate you about your union sup-
port or activities and we will not solicit your grievances,
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL offer Michael Slesnick and Lee Porteous im-
mediate and full reinstatement to their former jobs or, if
that job no longer exists, to a substantially equivalent po-
sition, without prejudice to their seniority or any other
rights or privileges previously enjoyed and WE WILL
make them whole for any loss of earnings and other ben-
efits resulting from these discharges, less any net interim
earnings, plus interest.
WE WILL notify them that we have removed from our
files any reference to their discharges, and that these dis-
ciplinary records will not be used against them in any
way.
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
DR. FREDERICK DAVIDOWITZ, D.D.S., A
PROFESSIONAL CORPORATION, AND DR.
MARTIN GOLDBERG, D.D.S, A PROFES-
SIONAL CORPORATION; A PARTNERSHIP