Abilities & Goodwill, Inc.

National Labor Relations Board - Board Decisions

Mar 15, 1979

241 N.L.R.B. 27 (N.L.R.B. 1979)

ABILITIES AND GOODWILL
Abilities and Goodwill, Inc. and Abilities and Goodwill
Association of Professional Employees. Case 1-
CA- 10344
March 15, 1979
DECISION AND ORDER
On November 14, 1977, Administrative Law Judge
Thomas E. Bracken issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, and General Counsel
filed a brief in support of the Administrative Law
Judge's Decision.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions' of the Administrative Law Judge and to
adopt his recommended Order except as modified
herein.
The Administrative Law Judge found that Respon-
dent violated Section 8(a)(1) of the Act by discharg-
ing 21 strikers on July 11, 1974, for engaging in pro-
tected, concerted activity, and by thereafter refusing
to reinstate them on July 18, 1974. We agree with
these conclusions of the Administrative Law Judge.
To remedy these violations, the Administrative Law
Judge ordered Respondent to offer immediate rein-
statement to the discharged strikers and to reimburse
them for lost wages accruing from the date of their
request for reinstatement, July 18, 1974. The Admin-
istrative Law Judge's proposed backpay remedy was
in accordance with established Board precedent.'
However, for the reasons set forth below, we now
overrule this precedent and, henceforth, for purposes
of computing the employer's backpay liability, we
will treat unlawfully discharged strikers in the same
manner that we treat other employees who are dis-
criminatorily discharged. Thus, we will no longer re-
quire discriminatorily discharged strikers to request
reinstatement in order to activate the employer's
backpay obligation.
The issue is whether an unlawfully discharged
striker, unlike an unlawfully discharged employee,
must unconditionally request reinstatement in order
I In agreeing with the Administrative Law Judge that the employees' sick-
out was protected activity, we do not rely on his comment that Respondent
did not contend that this action was illegal.
2 See, e.g., Bartlet-Collins Company, 230 NLRB 144 (1977) (Member Jen-
kins, dissenting); Michael Muldoon Elder, d/b/a Vorpal Galleries, 227 NLRB
446 (1976) (then Member Fanning and Member Jenkins, dissenting); Valley
Oil Co., Inc., 210 NLRB 370 (1974) (then Member Fanning, dissenting).
I In his recommended Order, the Administrative Law Judge included the
names of two employees, Meredith Hewitt and Richard Schott, who appar-
ently had made no request for reinstatement. Under the Administrative Law
Judge's analysis, these 2 employees should not have been included in his
proposed remedial order, but under the approach adopted herein the 2 em-
ployees are entitled to the same reinstatement and backpay nghts as the
other 19 discharged stnkers.
to trigger an employer's backpay obligation. We be-
lieve that the equities and policies of the Act compel a
negative answer. It is, of course, well settled that a
discriminatorily discharged employee is entitled to re-
instatement and backpay from the date of the em-
ployer's unlawful action. There is no requirement that
such employee first request reinstatement. Indeed,
such a request, in all likelihood, would fall upon deaf
ears when one considers that the employer has just
fired the employee. In this connection, the Board has
frequently said that it will not require a person to
perform a futile act.4 Furthermore, since it is the em-
ployer who has acted unlawfully in discharging the
employee, the burden is on that employer to undo its
unfair labor practice by offering immediate reinstate-
ment to the employee, and by reimbursing the em-
ployee for all losses suffered from the date of its dis-
criminatory action.
The foregoing rationale is, in our view, equally ap-
plicable to employees who are unlawfully discharged
while engaged in a lawful strike. A discharged striker
is a discharged employee, and is entitled to be treated
as such, for there is nothing peculiar to a strike which
justifies dissimilar treatment. The nature of the em-
ployer's unlawful conduct is not changed by the fact
that the employee happens to be a striker at the time
of discharge. Furthermore, to require a discharged
striker to request reinstatement would be no less futile
than it would be for a discharged employee. Thus, no
logical reason presents itself for treating the two cate-
gories of employees differently. In both cases, the em-
ployer has acted in violation of the Act in terminating
the employee, and in both cases the burden rightfully
rests on the employer to remedy the situation. Ac-
cordingly, we now hold that a discharged striker is
entitled to backpay from the date of discharge until
the date he or she is offered reinstatement.' To the
extent that this holding represents a departure from
prior policy, that policy is hereby overruled. 6
While our dissenting colleague would adhere to
that prior policy and continue to place the burden on
unlawfully discharged strikers to request reinstate-
ment, it is our judgment that such a position does not
best effectuate the remedial purposes of the Act. Pre-
4
See, e.g., Macomb Block and Supply, Inc., 223 NLRB 1285, 1286 (1976);
Mason City Dressed Beef Inc., 231 NLRB 735, 747-748, and fn. 3 (1977);
Alexander Dawson, Inc., d/b/a Alexanders Restaurant and Lounge, 228
NLRB 165, 179 (1977); Penzel Construction Company, Inc.. 185 NLRB 544
(1970).
s If the discharged striker responds to the employer's offer of reinstatement
by continuing to withhold his or her services, the employer's backpay obliga-
tion is tolled and the employee resumes the status of a striker. As such, the
employee will, of course, be required to request reinstatement upon the con-
clusion of, or the striker's abandonment of, the strike. In addition, even in
the absence of an offer of reinstatement, the employer remains free to avoid
or reduce its backpay obligation by establishing that the employee would not
have accepted the offer if made, or by any other evidence showing the incur-
rence of a willful loss of earnings.
6 For a discussion of the Board's prior policy, see cases cited in fn. 2, supra.
241 NLRB No. 5
27
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sumably, the dissent's position is founded on the
premise that backpay awards are generally inappro-
priate for periods during which employees voluntarily
withhold their labor. We too accept this premise.
Thus, there is no dispute between us that striking em-
ployees-who have not been unlawfully discharged-
are not entitled to backpay while engaged in a strike
unless and until they abandon the strike and request
reinstatement. Nor, we presume, is there any dispute
between us that unlawfully discharged employees-
who are not strikers-are entitled to backpay from
the date of their discharge, since under such circum-
stances, the employer is clearly responsible for the
discharged employees' loss of earnings. The problem
in resolving the issue herein is that the discharge of a
striker creates an ambiguous situation. When dis-
charged strikers withhold their services after the date
of the unlawful discharge, one cannot really be cer-
tain whether their continuing refusal to work is vol-
untary, i.e., a result of the strike, or whether the rea-
son for not making application for reinstatement is
that the employer, by discharging the employees, has
unmistakenly impressed on them the futility of mak-
ing such an application. Thus, "it becomes difficult, if
not impossible, to determine whether the employees
would have continued to strike and, if so, for how
long, had the opportunity to return to work been
available."7 This uncertainty could, of course, be re-
solved if the employees immediately apply for rein-
statement, and, one might say, as our dissenting col-
league does, that a showing of such an application is
not an unduly burdensome condition for establishing
entitlement to backpay. However, because the uncer-
tainty is caused by the employer's unlawful conduct,
we will not indulge in the presumption that the dis-
charge itself played no part in keeping the employees
out of work. Rather, it seems to us more equitable to
resolve the ambiguity against the wrongdoer and pre-
sume, absent indications to the contrary, that the dis-
charged strikers would have made the necessary ap-
plication were it not for the fact that the discharge
itself seemingly made such application a futility.
Ignoring the burden that our prior policy placed on
discriminatees, our dissenting colleague seems overly
concerned with the impact which our approach
herein will have on the discharging employer. How-
ever, rather than require the discriminatees to engage
in the vain procedure of requesting reinstatement, it is
clearly less burdensome to require the wrongdoing
employer to advise his victimized employees that, al-
though he discharged them, he is now rescinding that
action and offering them reinstatement. At that point,
if an employee refuses to report to work, the above-
stated ambiguity becomes resolved; it becomes clear
' See Member Jenkins' dissenting opinion in Bartlett-Collins Company, su-
pm.
that the discriminatee wishes to resume the status of a
striker; and the employer's backpay obligation, if
any, is tolled. In addition, as noted earlier, even if the
employer fails to offer reinstatement, it remains free
to seek to reduce backpay by presenting evidence that
the employees would have refused such an offer if
made, or that they failed to make a diligent effort to
mitigate the backpay obligation by seeking interim
employment elsewhere. Such a burden is no different
from that which we ordinarily impose on an employer
who seeks to prove willful loss of earnings.8 Accord-
ingly, unlawfully discharged strikers will now be af-
forded the remedial rights of other discharged em-
ployees, rather than those of ordinary strikers.
Finally, we note that the policy which we now
overrule was itself subject to the exception that dis-
charged strikers need not request reinstatement where
such request would be futile.9 In our view, this excep-
tion itself suggests the inequity of requiring dis-
charged strikers to request reinstatement, for the fact
of discharge itself clearly impresses upon the employ-
ees that their services are no longer desired and that a
request to return would be a useless gesture.'0 Thus,
under our reading of the word "futility," the excep-
tion engulfs the rule."
Applying the foregoing principles to the facts
herein, we find that the discharged strikers were not
required to request reinstatement in order to trigger
Respondent's backpay obligation, for, as discharged
employees, they were entitled to receive backpay
from the date of their unlawful discharge. If any of
the discharged strikers failed to make themselves
available for employment, and thereby incurred a
' In this regard, after the discharge continued participation in the strike is
not, by itself, evidence of such willful loss because, notwithstanding such
continued participation, the discharged employees may still spend hoars not
involved in strike activity seeking employment elsewhere, and thereby satisfy
whatever requirements are necessary for unlawfully discharged employees to
mitigate an employer's backpay liability. Thus, as in any compliance pro-
ceeding, the crucial issue is not how the discharged employees spent their
time, but rather whether the employer can show that, as a result of such
activity, the employees were unavailable or unwilling to accept or seek em-
ployment.
'See, e.g., Valley Oil Co., supra.
'0 Our colleague opines that the employees here hardly thought that such a
request was useless because they did, in fact, request reinstatement. Such
action proves nothing, and certainly does not disprove that the employees
reasonably believed the gesture to be useless. The employees may have been
motivated by nothing more than the stark fact that the then-prevailing
Board law generally mandated their request for reinstatement before back-
pay could commence. Moreover, the futility of making the reinstatement
request was especially borne out here by the fact that the request was refused
by Respondent.
i" In fact, in Sigma Service Corporation, 230 NLRB 316 (1977), a case
decided under the prior policy, the Board adopted the decision of the Ad-
ministrative Law Judge which applied the futility exception and required the
employer there to offer reinstatement where the only fact demonstrating
futility was the employer's clear indication to the employees that they were
fired.
28
ABILITIES AND GOODWILL
willful loss of earnings.2 Respondent can prove this
fact at the compliance stage of this proceeding."
In light of the foregoing, we shall modify the Ad-
ministrative Law Judge's recommended Order as set
forth below.4
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge, as modified be-
low, and hereby orders that the Respondent, Abilities
and Goodwill, Inc., Portland, Maine, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, as so modi-
fied:
i. Substitute the following for paragraph I (b):
"(b) In any other manner from interfering with,
restraining, or coercing its employees in the exercise
of their rights guaranteed in Section 7 of the Act."
2. Substitute the following two paragraphs for 2(a),
and reletter the subsequent paragraphs accordingly:
"(a) Offer to the employees named below (exclud-
ing Marvin Tanck, who has been reinstated) immedi-
ate and full reinstatement to their former jobs or, if
such jobs are no longer available, to substantially
equivalent positions, without prejudice to their se-
niority or any other rights and privileges, discharging,
12 See fn. 8, supra.
I" Our dissenting colleague attempts to make much of the fact that the
result herein fails to set forth the "cumulative administrative experience"
necessary to overturn existing Board precedent. Such a position confuses the
issue before us for, of course, there is no demonstrable basis for determining
instances in which past discriminatees have been prejudiced by our former
policy. In this regard, what our dissenting colleague fails to understand is
that the differences between us are not basecd on differing perceptions of our
administrative experience, but are premised on a philosophical difference
regarding the remedial purposes of the Act. Thus the dissent presumes, ab-
sent indications to the contrary, that discharged strikers fail to offer their
services because of their continuing desire to strike and should, therefore,
only receive the remedial rights of stnkers. We presume, absent indications
to the contrary, that discharged strikers fail to offer their services because the
discharge made such an offer a futility and should, therefore, receive the
remedial rights of ordinary discriminatees. In formulating our position, it is
important to note that the result herein does not baldly overrule 30 years of
unanimous Board support for the position requinng unlawfully discharged
strikers to request reinstatement. Chairman Fanning and Member Jenkins
have repeatedly dissented from the Board's reliance on such a remedial pol-
icy. See, e.g. dissenting opinions in cases cited in fn. 2, supra. The above
discussion adopts the rationale of those dissents and in so doing comports
with early Board decisions in this area. See, e.g., Gulf Public Service Com-
pany, 18 NLRB 586-587 (1940), enfd. 116 F.2d 852 (5th Cir. 1940); Acme
Evans Company, 24 NLRB 71 (1941); Shellbarger Grain Products Co.,
NLRB 336 (1938).
'4 As part of his proposed remedy, the Administrative Law Judge issued a
narrow cease-and-desist Order enjoining Respondent from violating the Act
in "any like or related manner." However, as the unlawful discharge of 21
striking employees is of such a serious nature and strikes at the very heart of
rights intended to be protected by the Act, we shall issue a broad cease-and-
desist Order requiring Respondent to cease and desist "in any manner" from
infringing upon employee rights. N.L.R.B. v. Enrwistle Mfg. Co., 120 F.2d
532, 536-537 (4th Cir. 1941).
if necessary, any replacements hired after the date of
their unlawful discharges.
"(b) Make the employees named below whole for
any loss of earnings which they may have suffered by
virtue of the discrimination against them by paying
them an amount equal to what they would have
earned from the date of discharge to the date that
they are offered reinstatement. Such backpay is to be
computed in the manner set forth in the section of
this Decision entitled Remedy.
David Adams
Robert Anderson
Donald Cannan
Cecelia Cormier
Kathleen Dunn
Maureen Fagan
Donald Flanders
Cecile Gagne
Robert Gross
Meredith Hewitt
Naomi Kronlokken
Johanna Linnehan
Corinne Lynds
Donna Quinn
Richard Schott
Rosanna Spurling
Jan Strout
John Sullivan
Marvin Tanck
Elise Thibodeau
Carl Wilder"
3. Substitute the attached notice for that of the
Administrative Law Judge.
MEMBER PENELLO and MEMBER MURPHY, dissenting:
We would dismiss the complaint in this proceeding
because the Respondent is engaged in charitable,
nonprofit, essentially noncommercial activities which
qualify it as an organization over which the Board
should not assert jurisdiction. As explained in our dis-
senting opinions in Abilities and Goodwill, Inc., 226
NLRB 1224 (1977), and The Rhode Island Catholic
Orphan Asylum, a/k/a St. Aloysius Home, 224 NLRB
1344 (1976), we adhere to Ming Quong Children's
Center, 210 NLRB 899 (1974), in opposing the
Board's assertion of jurisdiction over noncommercial
eleemosynary institutions. There is no need to reiter-
ate at length in this decision arguments which have
already been made there.
Our purpose, however, in this dissent is to protest
the majority's determination to forsake the Board's
policy that employees who are unlawfully discharged
while on strike must indicate abandonment of the
strike and a willingness to return to work in order to
initiate the running of their backpay eligibility period.
In so doing, they have overruled a practical and equi-
table remedy supported by more than 30 years of
Board precedent' 5-to which, in fact, both Chairman
'1 See, e.g., cases cited in fn. 2, supra; Roosevelt Roofing and Sheet Metal
Works, Inc., 204 NLRB 671 (1973) (former Chairman Miller, then Member
Fanning, Member Penello); Astro Electronics, Inc., 188 NLRB 572 (1971)
(former Chairman Miller, then Member Fanning; Member Jenkins. dissent-
ing); Universal Services, Inc., and Associates, 184 NLRB 381 (1970) (former
Member McCulloch, then Member Fanning, Member Jenkins); Sea-Way
Distributing, Inc., 143 NLRB 460 (1963); Elm Tree Baking Company, 139
NLRB 4 (1962); Sea View Industries, Inc., 127 NLRB 1402 (1960); Wheat-
(Continued)
29
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Fanning and Member Jenkins have until recently ad-
hered and contributed-without giving due deference
to the cumulative administrative experience repre-
sented by that precedent and without demonstrating
that the remedial policy herein adopted will better
serve to effectuate the purposes of the Act than its
predecessor. The crux of the majority's rationale for
changing the Board's backpay remedy is that "no
logical reason" presents itself for treating discrimina-
torily discharged strikers differently from discrimina-
torily discharged employees. We are thereby apprised
that the backpay policy at issue has heretofore been
totally illogical. While many who have suffered ad-
versity in Board decisions may welcome this unex-
pected burst of candor, we question its veracity and
will not allow the venerable precedent cited in this
opinion to be so cursorily dismissed.
The Board's broad discretionary authority under
Section 10(c) of the Act to order backpay as a remedy
for unlawful discharge is well established." "And in
applying its authority over back pay orders, the
Board has not used stereotyped formulas but has
availed itself of the freedom given it by Congress to
attain just results in diverse, complicated situ-
ations."'7 In each instance, the "just result" to be at-
tained is "a restoration of the situation, as nearly as
possible, to that which would have obtained but for
the illegal discrimination."' With that goal foremost
in mind, the Board has, until now, held that unlaw-
fully discharged working employees are eligible for
backpay from the date of their discharge, but unlaw-
fully discharged striking employees ae eligible for
backpay only after an unconditional offer to return to
work or, where there is evidence that any such offer
would be futile, after the general abandonment of the
strike.
The use of a different backpay eligibility formula
for unlawfully discharged strikers is wholly equitable,
consistent with the purposes of the Act, and illustra-
tive of the Board's judicially approved propensity for
tailoring make-whole relief to fit the specific circum-
stances of an unfair labor practice. It does not allevi-
ate, much less eliminate, the obligation of an em-
ployer to rectify its wrongdoing. It does not in any
way impugn the incontestable employee status of a
land Electric Cooperative, Inc., 102 NLRB 1119 (1953); National Gas Com-
pany, 99 NLRB 273 (1952); Happ Brothers Company, Inc., 90 NLRB 1513
(1950); Kallaher and Mee, Inc., 87 NLRB 410 (1949); Massey Gin and Ma-
chine Works, Inc., 78 NLRB 189 (1948). The cases cited conclusively over-
ruled the few earlier Board decisions to the contrary in this area. Although
the majority opinion intimates otherwise, an occasional lack of unanimity
has no bearing on the value of these cases as precedent. They have at all
times represented the opinion of at least a clear majority of the Board's
membership.
l* E.g., N.L.R.B. v. J. H. Ruttrrer-Rex Manufacturing Company., 396 U.S.
258 (1969).
'? Phelps Dodge Corporation v. N.L.R.B., 313 U.S. 177, 198 (1941).
" Id., 194.
striker-discriminatee.' 9 It does, however, recognize
the fundamental economic distinction between work-
ing and striking employees at the instant discrimina-
tory action is taken against them. Since the majority
opinion herein ignores this distinction and its control-
ling significance on our make-whole remedial pur-
pose, we must elaborate on them.
Employees who are working at the time of their
discriminatory discharge are performing services for
their employer in exchange for wages and other bene-
fits. Accordingly, "the finding of an unfair labor prac-
tice and discriminatory discharge is presumptive
proof that some back pay is owed."2 0 The Board has
given remedial effect to this presumption by implying
the continuation of the economic status quo through-
out the period of discrimination and by placing upon
the employer the burden "to establish facts which
would negative the existence of liability to a given
employee or which would mitigate that liability."21
In contrast, employees who are on strike at the
time of their discriminatory discharge are voluntarily
withholding services from their employer and are not
entitled to compensation. Any subsequent loss of
wages "cannot conclusively be attributed to their dis-
charge until the employees indicate their willingness
to abandon the strike."2 2 With a logic that is now
being defied, the Board has consistently acknowl-
edged the absence of the usual wage loss presumption
in its backpay orders for unlawfully discharged strik-
ers by again implying the continuation of the eco-
nomic status quo and by placing on the General
Counsel the burden to establish facts which would
activate a given striker's eligibility to backpay.
The failure of my colleagues in the majority to ap-
prehend the critical distinction between the status quo
ante unfair labor practice of working employees and
that of striking employees is a fatal oversite by itself.
They have nontheless compounded their error by fail-
ing to give weight to the Board's considerable practi-
cal experience with the policy predicated on such a
distinction. Their disregard for administrative experi-
ence is in marked contrast to the Board's custom of
justifying the modification or overruling of an estab-
lished remedial policy by reference to a "cumulative
experience" which has revealed the particular short-
comings of that policy.2 3 It may also render liable to
'" The employer is, for instance, under a continuing obligation from the
moment it commits the unfair labor practice to reinstate the discriminatee to
his employee status.
25 N.L. R.B. v. Masiro Plastics Corporation, 345 F.2d 170, 178 (2d Cir.
1965); The Madison Courier, Inc., 202 NLRB 808 (1973).
1 N.L.R.B. v. Brown & Root, Inc., 311 F.2d 447, 454 (8th Cir. 1963).
12 Kitty Clover, Inc., 103 NLRB 1665, 1667, (1953). Similar expressions of
this theory may be found in several other cases cited in fn. 15, supra.
u E.g., F. W. Woolworth Company, 90 NLRB 289 (1950).
30
ABILITIES AND GOODWILL
sharp judicial scrutiny a remedial determination by
the Board which, if reflective of our peculiar adminis-
trative expertise, would ordinarily receive consider-
able deference upon review by the courts.2 4
In truth, the majority in this case would find no
support for their position in an analysis of Board
cases involving the policy they have overruled. For
over three decades the backpay eligibility formula for
striker-discriminatee has met the test of practical ap-
plication in a variety of situations. No apparent in-
equity can be divided from this experience with re-
spect to either the degree of compensation accorded
unlawfully discharged strikers or to the evidentiary
burden placed on the General Counsel to introduce
evidence of a particular individual's right to backpay.
On the contrary, the flexibility inherent in the now-
abandoned backpay standard has enabled the Board
to measure an employer's make-whole liability in a
specific factual context with reasonable accuracy. In
certain cases, as in the present proceeding, the Gen-
eral Counsel has presented evidence of striker-dis-
criminatee unconditional offers to return to work and
thereby established their right to backpay dating
from the time of the offer.25 In other cases, the Gen-
eral Counsel has been able to prove that any offer to
return to work would have been useless, and the
Board has consequently invoked the doctrine of futil-
ity to justify an award of backpay dating from the
time of a strike's general abandonment.2
Notwithstanding the proven ability of the Board to
effectuate its remedial purpose under our established
backpay policy for unlawfully discharged strikers, a
new policy has today been adopted which assumes ab
inilio that every striker-discriminatee would at all
times be performing services and receiving wages but
for the commission of an unfair labor practice and
places on the employer the burden to prove other-
wise. Aside from the aforementioned logical flaws in
the legal fiction proposed, the new backpay policy
entails a reliance on a sterotyped formula which the
Board has typically abjured. 7 In practice, the policy
espoused by our colleagues requires the employer to
prove an unlawfully discharged striking employee's
continued support of the strike in order to mitigate or
See NLR.B. v. Seven-Up Bottling Co., 344 U.S. 344 (1953); Phelps
Dodge Corporation v. N.L R. B., supra.
1 It is notable that no party in the instant proceeding has excepted to the
Administrative Law Judge's Decision to award backpay to the 21 unlawfully
discharged stnkers from the date of the offer to return to work rather than
from the date of discharge.
6 E~g., Mid-West Paper Products Co., 223 NLRB 1367 (1976); Universal
Services, Inc., supra. The majority herein contends that "the fact of discharge
itself clearly impresses upon the employees that their services are no longer
desired and that a request to return would be a futile gesture." The absolute
truth of such a contention is difficult to accept when made in a proceeding
where the subject discriminatees were not so impressed. as evidenced by their
postdischarge offers to return to work.
27 See fn. 17, supra.
eliminate its backpay liability. The facts with regard
to the issue of a striker's allegiance to the strike effort,
however, lie peculiarly within the knowledge of the
striker. Absent evidence of an overt act in sympathy
with the strike by the discriminatee, an employer will
be unable to make the requisite evidentiary showing.
As a consequence, employers found by the Board to
have unlawfully discharged striking employees will
on numerous occasions be required, in effect, to subsi-
dize with backpay the continued passive participation
in the strike by those employees. 8 This is not the "just
result" which the Board is dedicated to achieve in the
exercise of its statutory remedial authority. It is, un-
fortunately, a clearly foreseeable result under an in-
flexible backpay policy which is far worse suited than
its predecessor to the task of accurately determining
the economic positions of the parties involved which
would have obtained but for the occurrence of an
unlawful discriminatory discharge.
In sum, we cannot subscribe to the majority's ill-
considered overruling of the Board's longstanding
backpay eligibility formula for unlawfully discharged
striking employees. That formula is more practical,
more logical, and more consonant with the Board's
make-whole remedial purpose than the formula
herein adopted. We will therefore continue to adhere
to the view that employees who are unlawfully dis-
charged while on strike mrust indicate abandonment
of the strike and a willingness to return to work, un-
less It would be futile to make such a showing, in
order to establish their eligibility for backpay.
2"Cf. Southwestern Electric Power Company, 216 NLRB 522. (1975),
wherein a Board panel majority held that an employer did not violate Sec.
8(a)(3) and () of the Act by treating six employees as strikers and terrmnat-
ing their sick leave payments when it had no objective indication of their
sympathies and reasonably believed that they supported a generally effective
strike effort.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all sides had the chance to
present evidence and argument, the National Labor
Relations Board has found that we violated the Na-
tional Labor Relations Act, and has ordered us to
post this notice:
WE WILL NOT discharge, refuse to reinstate, or
otherwise discriminate against our employees be-
cause they have engaged in concerted activity or
a protected strike for their mutual aid or protec-
tion.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the ex-
31
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ercise of their rights guaranteed under Section 7
of the Act.
WE WILL offer to each of the employees listed
below immediate and full reinstatement to the
job they held immediately before July 11, 1974,
or, if that job no longer exists, to a substantially
equivalent job, without prejudice to their senior-
ity or any other rights and privileges previously
enjoyed, discharging, if necessary, any replace-
ments hired after the date of their discharges.
WE WILL make the employees named below
whole for any loss of earnings they may have
suffered by virtue of the discrimination against
them by paying them an amount equal to what
they would have earned from the date of dis-
charge to the date that they are offered reinstate-
ment, with interest.
David Adams
Robert Anderson
Donald Cannan
Cecelia Cormier
Kathleen Dunn
Maureen Fagan
Donald Flanders
Cecile Gagne
Robert Gross
Meredith Hewitt
Naomi
Kronlokken
Johanna Linnehan
Corinne Lynds
Donna Quinn
Richard Schott
Rosanna Spurling
Jan Strout
John Sullivan
Marvin Tanck*
Elise Thibodeau
Carl Wilder
*Since Tanck was reinstated to his job in 1974,
we will make him whole with interest for the pe-
riod prior to his reinstatement.
ABILITIES AND GOODWILL, INC.
DECISION
STATEMENT OF THE CASE
THOMAS E. BRACKEN, Administrative Law Judge: This
case was heard at Portland, Maine, on April 21-22, 1977.
The charge was filed by the Abilities and Goodwill Associ-
ation of Professional Employees on December 31, 1974'
(amended January 21, 1977), and the complaint was issued
on January 25, 1977.2 The primary issue is whether the
I All dates are in 1974 unless otherwise stated.
2 On August 19, a petition for certification of representative was filed by
Raymond McGuire (amended on the first day of the representation hearing
set forth below, to show the name of the Petitioner as Abilities and Goodwill
Association of Professional Employees). On November 6, 1974, the Regional
Director for Region I dismissed the petition on the basis that the Board
lacked jurisdiction over the Employer. The Petitioner filed a request for
review of the dismissal with the Board and, on December 10, 1974, the
Board issued a ruling on administrative action remanding the petition to the
Regional Director for the purpose of conducting a hearing. A hearing was
duly held on January 23. 24, 28; February 19. 20; and March 18, 1975. On
March 24, 1975. pursuant to direction of the Board, the Regional Director
for Region I transferred the case to the Board for decision. On December I.,
1976, the Board issued its decision, asserting its jurisdiction over the Em-
ployer, and directed elections in two voting groups, the first being nonprofes-
Company, herein the Respondent, discharged employees
and refuses to reinstate them because they engaged in a
work stoppage and other concerted activity, in violation of
Section 8(a)(l) of the Act.
Upon the entire record,' including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by the General Counsel and the Respondent,
I make the following:
FINDINGS OF FACT
1. JURISDICTION
The Company, a nonprofit organization, is established to
provide services for mentally, emotionally, and physically
handicapped individuals in the State of Maine. During
1974, the Company had total revenues of $1,103,104 and
purchased supplies directly from sources outside the State
of Maine valued at $22,022, and gas and oil valued at ap-
proximately $42,000 from suppliers within the State who
received such gas and oil from outside the State. In 1977,
the Company has a budget for expenditures in the amount
of approximately $1,300,000, and primarily due to the in-
crease in the costs of gas and oil, has a budget exceeding
$50,000 for the purchase of gas and oil from suppliers
within the State, who receive such gas and oil from outside
the State. The Company denies that it is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act. For the reasons stated in the representa-
tion Case 216 NLRB 1224 (1975), 1 find that the Company,
as an employer engaged in retail activities, meets the juris-
dictional standards for retail enterprises,' and is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
As found in Abilities and Goodwill, Inc., supra, Abilities
and Goodwill Association of Professional Employees is a
labor organization within the meaning of Section 2(5) of the
Act.
I11. THE ALLEGED UNFAIR LABOR PRACTICES
A. Contentions of the Parties
It is undisputed that on July 8 the Respondent dis-
charged its director of rehabilitation services, Patrick Eisen-
hart,5 one of its two department heads, and that on July 9
and 10, triggered by Eisenhart's discharge, approximately
22 employees of the rehabilitation department staged a
"sickout" and did not report for work. On July 11, at a
sional employees and the second being professional employees. Abilities and
Goodwill, Inc., 226 NLRB 1224. The record does not disclose if an election
was held or, if held, what the result of the election was.
At the request of the General Counsel, official notice was taken of Abili-
ties and Goodwill, Inc., supra. On the motion of Respondent, the transcript of
testimony in the above-cited representation case was received into evidence,
solely on the issue of jurisdiction.
4 Carolina Supplies and Cement Co., 122 NLRB 88 (1958); Siemons Mail-
ing Service, 122 NLRB 81 (1958).
The legality of Eisenhart's discharge is not an issue in this case.
32
ABILITIES AND GOODWILL
meeting with Respondent, these employees were termi-
nated: with the exception of two employees, Howard Hede-
gard and Marvin Tanck. none of the remaining discharged
employees has been reinstated.
It is the General Counsel's contention that the underlying
cause of the employees' sickout on July 9 and 10 was to give
them time to prepare grievances concerning wages, hours,
and other terms and conditions of employment, which were
to be turned over to Eisenhart, who, on their behalf and as
their spokesman, would present their grievances to the
board of directors of the Respondent agency. The General
Counsel accordingly asserts that on July I I, when these
employees were terminated, they were engaging in pro-
tected concerted activity for which they could not lawfully
be discharged, and that, in any event, on July 18 when the
employees unconditionally offered to return to work, Re-
spondent acted unlawfully in refusing their request for rein-
statement and in thereafter refusing or failing to reinstate
them.
Respondent does not challenge the legality of the em-
ployees' sickout on July 9 and 10, but contends that on July
II, "the cause of their discharge was the employees refusal
to remain at work or to continue in their employment un-
less Patrick Eisenhart was in fact rehired," and that such a
demand was unprotected activity. Respondent asserts that
it therefore had a legal right to terminate the employees, as
it had to choose between retaining its Executive Director
Arthur Bennett or capitulate to the employees' demands
and reinstate Eisenhart.
B. Credibility
The record contains several basic testimonial conflicts, in
which General Counsel's witnesses uniformly testified one
way, and Respondent's witnesses testified to the contrary.
In most instances I have indicated my resolution of these
conflicts at the point in the section which follows where the
particular issue is taken up. However, chiefly because of the
fact that many of the witnesses herein had testified on the
same subject matter before three previous tribunals,6 I re-
ceived an overall impression from the witnesses, chiefly the
witnesses for the General Counsel, that they knew the role
they were to play as avowed "professionals," and knew the
answers that they thought should be given for the good of
their cause, regardless of the facts. There was one notable
exception to this role playing and seeking to give answers
helpful to their cause, and that was Harold Berk, president
of Respondent. Berk was a most impressive witness, an-
swering all questions in a straightforward, articulate, candid
manner, with no evasion or embellishment. At the time of
his testimony herein, Berk had completed 4 years of public
service as the uncompensated president of the agency, and
he impressed me as a most conscientious citizen testifying
solely to present the facts as he truly remembered them,
and I have credited his testimony.
6 The Cumberland County Superior Court of Maine, Abilities and Good-
will, Inc. v. Elise Thibodeau, a petition for an injunction, July 29-30, 1974;
the Maine Board of Arbitration and Conciliation, August 1974; and the
Maine Department of Manpower Affairs, Unemployment Security Commis-
sion, January 25, 1977.
C. The June Management Meeting
Eisenhart had been hired in May 1972 as the director of
rehabilitation, one of Respondent's agency's two primary
departments. The other major department was the opera-
tions department, which was mainly concerned with mer-
chandising and whose department head was Raymond Lu-
cas. Employees on Eisenhart's rehabilitation staff, about 30
in number, worked at all five agency buildings scattered
throughout Portland: the central office, the extended em-
ployment center and retail shop, the Elma Mitchell Voca-
tional Evaluation Center, the Carlton House dormitory,
and the Ingraham House dormitory.
Eisenhart testified that in late June, he met with Execu-
tive Director Bennett and Harold Berk,7 president of Re-
spondent, regarding "problems" at the agency. As a result
of the conference, he was told by Berk to compile "a writ-
ten list of grievances from the staff," which he was to have
ready in 2 weeks, when Berk returned from his vacation.
On cross-examination Eisenhart insisted that he was not
told by Berk to present a list of his grievances, but a list of
staff grievances, and that he used the words staff and staff
grievances during the conference.
Berk testified that he had learned of dissension between
Bennett and Eisenhart, and thereupon called the meeting of
the two at the executive director's office.' Berk opened the
conference by stating to Eisenhart and Bennett that he had
heard they did not get along, and that he wanted to know
what was going on. Eisenhart proceeded to accuse Bennett
of being dishonest, of skimming, of cribbing on expenses, of
not knowing anything about rehabilitation, and stated that
Bennett "wasn't worthy of being a pimple on rehabilita-
tion's ass." In the hour long conference, Eisenhart also
stated that the agency's truck had been used by the son of
Operations Director Lucas for personal reasons, and that
Lucas' son had been in an accident with the truck. Eisen-
hart then stated that he expected that Bennett would fire
him, and that if he was fired he would pull all his people out
with him. Bennett commented that he did not think Eisen-
hart could do that. Berk testified that he then directed Eis-
enhart to "go back and put his allegations on paper, with
whatever supporting evidence he could put together." He
promised that when the "letter" was received, he would
appoint a committee, the "allegations" would be investi-
gated, and a full hearing would be held.
On cross-examination Berk strongly denied that Eisen-
hart referred to problems of his staff, or to poor working
conditions, or to any question about discrimination against
some female employees with respect to rates of pay. Berk
stated that if Eisenhart at any time had stated that other
employees had criticisms of Bennett, he would have asked
who they were and their names would have been brought
into the conversation. Berk further testified that the only
matters discussed were Eisenhart's personal experiences
with Bennett and "Nothing else," and that the only time
Berk's office as president of Respondent was an unpaid one; he was also
president and general manager of a Portland shoe manufacturing company.
I Berk was surpnsed to hear of this dissension, as several weeks previously
he had met with Eisenhart at dinner; they had discussed the workings of the
agency and its future in detail, and Eisenhart had not mentioned any dissen-
sion.
33
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the staff was mentioned was when Eisenhart stated
that he would pull the staff if he was fired. The meeting
concluded with Eisenhart agreeing to prepare a list of the
accusations he had made against Bennett and to formalize
these in a letter to Berk.
Eisenhart was an evasive, argumentative, inexact witness
and I do not credit his testimony except where uncontested.
An example of this is his answer after testifying that he was
certain that a report (G.C.Exh. 2) had been turned over to
the board of directors on July 8 and also testifying that he
was not asked by Berk to present a list of Eisenhart's griev-
ances, but a list of the staffs grievances.
Q. Are you as certain of that fact, sir, as you were of
the fact that the list of grievances was given to the
board of directors on July 8th?
A. When you say you, Mr. DeTroy, in my capacity
as director of rehabilitation? That could be a very
equivocal term. If you're talking about in my capacity
as director of rehabilitation, translating it to the board
of directors-is that what you're talking about? Or, are
you talking about my personal-my alone kind of
thing? Because I think it's very difficult for me to sepa-
rate from that-separate my personal versus the entire
staffs.
I credit Berk's testimony that the charges made at this
meeting were Eisenhart's personal complaints targeted at
the executive director's alleged mismanagement of the
agency, and that grievances, as grievances of the staff, were
not mentioned. Berk's testimony that Eisenhart stated that
he would pull the staff if he was fired was uncontradicted
and is credited.
D. The June 28 Rehabilitation Staff Meeting
Eisenhart testified that after this meeting with Berk and
Bennett, he had "at least three" meetings with employees
about grievances. The first meeting was held at the home of
the assistant rehabilitation director, Dick Schott, with two
other rehabilitation department employees, Donald Can-
nan and Cecile Gagne. The second and third meetings, ac-
cording to Eisenhart, were held at Eisenhart's house with
the majority of his staff, over 20 people, present.'0 Robert
Gross, an avid witness for the General Counsel, admitted
on cross-examination that the question of grievances had
been brought up to the rehabilitation staff for the first time
at the late June [28] meeting.
However, there can be no doubt but that staff grievances
were discussed at this June 28 meeting. Howard Hedegard,
an employee of the Respondent in 1974 as well as at the
time of the hearing, was called by the Respondent as its
witness. He fixed the date of this large "rehab" staff group
meeting as June 28, although he admitted that there had
been some prior small meetings. Hedegard testified that at
this June 28 meeting Eisenhart informed his staff, that he
9 Subsequent witnesses of the General Counsel testified conclusively that
the report had not been compiled by July 8 and, in fact, was turned over to
the directors on the evening of July 10.
mi All other staff witnesses testified that there was only one large meeting in
June, and I so find.
had had a meeting 2 days prior [June 26] with Bennett and
Berk, and that he had informed Berk that he thought that
Bennett and Lucas were incompetent; that, as a result of
this charge, Berk had requested him to complete a list of
what he thought was wrong at the agency to prove this
incompetence; and that Eisenhart then asked the staff
members to "compile any grievances that we had with our
particular programs, primarily due to funding."" Hedegard
also testified that Eisenhart stated he thought that he would
be fired because of his endeavors; and upon hearing this,
the group decided that if anyone was fired they would meet
again to decide what to do, "but that some action would be
taken to protect either Pat or other members of the rehab
staff." Gross testified that he was involved in that part of
the conversation that dealt with some action would be
taken if any staff member was fired.
E. The Events of July 8, 9, and 10
On the morning of July 8, Monday, Eisenhart was dis-
charged by Executive Director Bennett. There is no ac-
count of what occurred at this meeting by either Bennett or
Eisenhart, and it is not material to this case. Eisenhart
thereafter informed Hedegard and several other rehabilita-
tion staff employees of his discharge, and advised them that
there would be a meeting at his house at 5:30 p.m. that
evening. A meeting was held that night, attended by a large
number of staff employees, estimated by Gross to be about
25 to 30 and by Hedegard as about 25. The meeting lasted
about 2 to 3 hours. When asked by Respondent's counsel
what happened at the meeting, Hedegard replied:
At that meeting there was some discussion as to
what had happened, that is Pat's being fired, as to our
grievances, as what we were going to do about that as
a rehab staff. We decided without a doubt that we
would all call in sick the following morning, and that
would give us time to get together to finalize the prep-
aration of this grievance list.
Hedegard further testified:
Everybody wanted to stay out because they wanted
to get this task force report put together and the other
reason was because at the meeting of June 28, they had
promised that if a rehab member was fired, we would
meet and determine what we were going to do. And at
this time the group decided that they were supporting
Eisenhart.
At this July 8 meeting there was also a discussion by the
group as to whether there was a Maine state law that would
allow employees to call in sick for a 3-day period, without
the necessity of providing a note from a doctor indicating
that they had actually been sick. They expressed concern
1" On July 4 Hedegard did turn in to Eisenhart a three page, rambling,
social worker's report, mildly decrying the lack of adequate financing for
Ingraham House, for which he was house manager (G.C. Exh. 6). Specifi-
cally, he stated that the Ingraham House needed a full-time maintenance
individual, two new furnaces, furniture, and carpeting. While these items
would improve the health and welfare of the mentally, emotionally, and
physically handicapped individuals (referred to by the witnesses as clients) in
the house, they would also obviously make better working conditions for
Hedegard and his assistants.
34
ABILITIES AND GOODWILL
about their status as employees, if they were out more than
3 consecutive days.
On the following day, July 9, rehab staff employees, in-
cluding Gross, Kathleen Dunn, Donald Cannan, Naomi
Kronlokken, Jan Strout, and Cecile Gagne called into the
agency and reported sick. All admitted that they partici-
pated in the "sickout." When asked on direct examination
why they participated in the sickout on July 9 and 10 they
gave virtually the same answer. Cannan stated the reply
most completely: "We had grievances to present to the
board, and we felt our spokesman had been terminated that
day; we felt there was one way of doing it one-one way of
getting the board of directors to listen to us, to our griev-
ances that we had."
Gross testified that after calling in sick, he then went to
the home of Eisenhart, where there was a meeting of senior
staff members. Here, they took the raw data that the staff
had compiled on grievances pursuant to the meeting of
June 28. The senior staff members read them over and put
them into their final form. After they finished each section,
various staff members with typewriters began typing the
report. The task force report was finally compiled and put
together on Wednesday evening, July 10, around 8 or 9
p.m. Various staff members were given these documents to
take to the members of the board of directors at their
homes.'2 Cannan, Adams, Schott, and Hedegard were then
chosen as spokesmen to meet with the agency's rehabilita-
tion committee on the following day.'
Marvin Tanck, another witness called by Respondent,"
testified that he was aware that the employees were writing
up some sort of written documentation of the problems as
they saw them on July 9. He also agreed that on Tuesday,
he was one of the persons who went over the various state-
ments that people had turned in to Eisenhart form compil-
ing a rough draft.
On the morning of July 10, while the staff members were
present at Eisenhart's house, a request came from Patricia
Corey, a member of the board of directors, to meet with her
subcommittee on rehabilitation. Gross, Hedegard, Adams,
Cannan, and Gagne proceeded to meet with Mrs. Corey,
Tanya Shapiro, and a third member of the subcommittee,
William Reilly. As Gross testified, these three members of
the board requested that the members of the staff return to
work and raise their grievances through proper channels.
Gross maintained to them that the firing of Eisenhart had
cut off their channel to the board, although he did not ex-
plain why this was so. Gross, when asked if he told the
subcommittee what their grievances were, evasively replied,
"I don't recall, but I don't think that we did." None of the
members of the board's subcommittee testified.
Following this meeting with the board subcommittee, the
same employee committee went to the office of attorney
Raymond G. McGuire to discuss the legal rights of employ-
ees, particularly in regard to the State of Maine law on
12 Eisenhart's testimony that the report was completed on July 8 and deliv-
ered by hand to members of the board on the same evening is obviously in
error.
13 Gross testified that the June 28 meeting was run jointly by Eisenhart,
Cannan, and Gagne. The record is clear that Cannan, Gagne, and Gross
were the chief spokesmen and leaders of the group during the week of July 8.
14 Tanck was one of the two members of the staff who had been rehired
subsequently to his discharge. He was obviously a friendly witness to Re-
spondent, and I credit his testimony.
sickouts. The committee was told by McGuire that it was
obvious that they were not sick, as they were spending the
time having meetings, typing things up, and running all
over town.'
On the evening of Wednesday, July 10, the rehab staff
met again at Eisenhart's house. Although apparently there
was no formal vote, the group decided that it would return
to work the following morning and as Gross testified, "to
work the whole next day and to meet Thursday evening, to
discuss any further action." Gross and Gagne testified that
no conditions were placed on their return to work. On
cross-examination, when Gross was asked if at any time
from Monday, the day Eisenhart was fired, until Thursday
morning, was Eisenhart's rehiring a condition of the group
as to their returning to or remaining at work, he answered
at no time.
Hedegard testified that it was decided that if Eisenhart
was not reinstated, or if there was not some assurance that
there would be a full meeting of the board with the full
rehabilitation staff, they were going to call in sick again."
Tanck testified that on Wednesday night the main emphasis
was on Eisenhart's reinstatement and the hope that they
could have a meeting with the full board of directors.
The task force document
General Counsel's Exhibit 2, referred to as the task force
report, was admitted into evidence without objection by
Respondent. It is a Xerox copy of the only copy that the
Regional Office had during its investigation, and is, overall,
a peculiar document. It consists of 29 pages, with the con-
tents thereof typed on obviously several different typewrit-
ers. The first 10 pages are not numbered at all, but begin-
ning with page II, each page thereafter is numbered by
hand in the right hand corner, by plainly different hand-
writings.
The front page identifies the document as "Task Force
on Problems at Abilities & Goodwill, Inc.," and then reads
"completed by 22 members of the Rehabilitation Staff and
presented all or in part to Abilities and Goodwill on or
before July 8, 1974." This is obviously incorrect, as the rec-
ord is clear that staff members only started to put the report
together on the morning of July 9 and finished it late in the
evening on July 10.1'
The second page, which purports to be a letter addressed
"To whom it may concern" is also misleading. Its contents
" Gross participated in the sickout on July 9 and-10, but admitted that he
was not sick those 2 days. When asked, to the best of his knowledge, if
anyone was sick, he answered "I don't know." This is a typical evasive
answer, in which he sought to give the answer that he thought would best
help his former associates. I do not find that Gross was a credible witness,
and I have relied on his testimony only in those instances where the facts are
undisputed.
"6 By Wednesday evening, Hedegard had become disillusioned with the
staff's actions. He stated that it became obvious to him that the group was
considering Eisenhart over-and-above the handicapped. At that point he
began to challenge the group and was thereafter ostracized. While the tenor
of Hedegard's testimony was inclined to be favorable to the cause of the
agency. he answered questions both on direct and cross-examination in a
sincere, frank manner; I credit his testimony, much of which supports the
position of the General Counsel.
'7 Copies of the report were delivered to the homes of board members after
9 p.m. that evening.
35
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
clearly indicate that it was typed sometime after the meet-
ing of July 11; therefore, it could not have been part of the
task force report "presented all or in part to Abilities and
Goodwill on or before July 8, 1974," as stated on the front
page.
The third page reads, "This Report is respectfully sub-
mitted by," and thereafter contains the signatures of 20 em-
ployees including Eisenhart's. Under the signatures is
typed, "Former Staff at Abilities and Goodwill, Inc. fired
by Mr. Arthur G. Bennett from their positions, 7/8/74 thru
7/12/74." Obviously this third page also could not have
been part of the task force report presented to Respondent
on or before July 8.
It is readily apparent that the first three pages of this
exhibit could not have been attached to the sheaf of papers
delivered to the board members on the evening of July 10,
nor could they have been part of the sheaf of papers in the
hands of board members on the morning of July I 11. At
some date thereafter, these three pages were added to that
task force report, undoubtedly by employees of the rehabili-
tation staff; these pages are spurious and misleading, and
give me pause to discredit the entire exhibit. Inasmuch as
Respondent did not object to its receipt, I will disregard the
first three pages and review the balance of its contents.
An examination of the remaining 26 pages reveals a ram-
bling, disconnected number of vague charges and allega-
tions about financial affairs and procedures of the agency
and is, in major part, directed against Director Bennett's
honesty and competency. While most of the complaints re-
fer to working and living conditions of the clients, some of
them refer to working conditions of rehabilitation staff em-
ployees. Page 10 of the report reviews the problems of
wheelchair persons with the agency's toilets and drinking
fountains, and is followed by a recommendation: "That
two architecturally accessible bathrooms with low drinking
fountains be provided to accommodate the needs of wheel-
chair clients and staff on Forest Avenue." The first com-
plaint relating to staff employees only appears on page 16.
Here it is alleged that there is discrimination in wage pay-
ments to women in that men on the staff are paid higher
wages than women. The report then recommends various
wage increases and establishment of a merit rating system.
The report thereafter requests improvements in various
working conditions, such as partitioned offices for privacy,
a new furnace, additional bathrooms, a motor vehicle for
the center, additional full-time and part-time employees,
and a change in the way grievances are handled. The report
also requested that a pension plan be established for all
employees. In sum, the task force report does contain some
employee grievances concerning wages and working condi-
tions.
F. The Events of July 11
On the morning of July 11 some of the rehabilitation staff
employees returned to work, although the number is un-
known. Hedegard testified that he reported to the Ingraham
House at 7 or 7:15 a.m. and spoke with Director Bennett.
Bennett was passing out medications to clients and Hede-
gard told him that he would like to come back to work and
that he was coming back with no demands or conditions.
Bennett advised him that he was busy and that Hedegard
would have to leave and see him later in the day; Hedegard
did leave. Tanck testified that on Thursday morning he
walked into his office, whereupon his immediate supervisor
came to him, said that Director Bennett was at a board of
directors' meeting that morning, asked him to please return
home, and stated that the director would call him as soon as
he was finished at the board meeting. Tanck left. Kathleen
Dunn testified that she and employees Richard Schott,
John Sullivan, and Gross returned on Thursday morning to
work at the 803 Forest Avenue facility. She was advised by
one of the office staff that Director Bennett had stated that
she was not to report to work until further notice. Gagne
also testified that when she returned to work at her station,
she was told by her supervisor that Bennett had requested
that she leave until further notice.
Gross testified that he returned to work on Thursday at
approximately 7:30 a.m.; he claims that he was in a coun-
seloring session with a handicapped individual when Direc-
tor Bennett came to his office and told him do not report to
work until further notice. Gross and other employees of
that branch left the premises and went to the Elma Mitchell
Vocational Evaluation Center where Gross knew that there
was an emergency meeting of the board of directors. When
he arrived he could see employees from the other branches
standing around the center. According to Tanck, someone
asked the group to come inside, and about 18 or 20 mem-
bers of the rehabilitation staff went in."
Harold Berk had been informed on the evening of July 8
by Director Bennett that Eisenhart had been fired. Accord-
ing to Berk, Bennett told him over the telephone that Eisen-
hart "had meeting after meeting with his staff" and that the
purpose of the meetings was not to improve the working of
the organization but rather to destroy the organization. On
the next evening, July 9, Berk, who was away on vacation
in New Hampshire, learned of the work stoppage. He came
back to Portland on Wednesday morning and made ar-
rangements to call a meeting the next day of the board of
directors. He candidly admitted that he was upset about the
fact that the employees were engaged in a work stoppage,
but he added that anyone has a right to quit his job, and he
took their action as an indication that they no longer
wished to work at the agency.
Berk called for a meeting of the full board for July I I at
8 a.m. at the evaluation center. The night before he had
received "a sheaf of papers," General Counsel Exhibit 6,
but he had had no opportunity to look at the papers prior
to the meeting. Berk reported to the board 9 that on the day
before Cannan had telephoned him and stated that if Eisen-
hart was not rehired, the staff employees would not return
to work. Board member Tanya Shapiro reported that she
had been informed by some of the staff that they wanted to
meet with the entire board of directors and that she had
informed them that if they came back to work, she would
attempt to arrange a meeting for them with the entire
" The person who invited the employees to come in was attorney Herbert
Bennett, Berk's business attorney; Berk had requested him to attend this
meeting. Attorney Bennett is not related to Director Bennett.
"1 Attorney Bennett had arrived shortly before Berk and had already
talked to the board members when Berk appeared. The attorney testified
that when he asked the people to come inside so that they could have a
discussion, Gagne had replied "Who the nell are you-we don't have to talk
with you," and that she said "Well, we're going to talk to the full board or
nobody."
36
ABILITIES AND GOODWILL
board. It was decided that it would be too unruly a meeting
to have 50 people present. The board then instructed Berk
to get the employees back to work so as to service the cli-
ents, because it was the clients who were important. The
board then directed the two Bennetts and Berk to go out
and talk to the assembled employees and to try to get them
to go back to work.?
Vast amounts of testimony were given by many witnesses
as to who said what to whom at this meeting. However,
Berk's testimony as to what occurred was in the main un-
contradicted, and I credit it. Cannan and Gross were the
chief spokesmen of the assembled employees, and in the
course of the meeting there was a discussion as to whether a
condition of their going back to work was the rehiring of
Eisenhart. Berk repeatedly told the employees that the
board wanted them to go back to work, and that the board
would appoint a three-member committee to five-member
committee to meet with a committee appointed by the staff,
and at that time they could "air all grievances, whatever
they are." Upon not receiving a satisfactory response, attor-
ney Bennett then stepped forward and said "Wait a minute.
Do I understand that a demand of this group is that they
will not go to work until Eisenhart is rehired?" When there
was no response, Berk asked "Does anyone disagree?"
Upon receiving no response, Berk himself asked if the rein-
statement of Eisenhart was a condition of their going back
to work, and Cannan, who had been the chief spokesman,
answered that is was." No one stated that he or she dis-
agreed with Cannan's answer, and Gagne admitted that six
or seven persons agreed. 2
Berk further testified that it was clear to him that no one
would go back to work until Eisenhart was rehired. He then
told the group that the board would have to find people to
take care of the clients, and he adjourned the meeting. Berk
admitted that it was his understanding that these people
had voluntarily quit or had been terminated.23 He also ad-
mitted that one of the employee demands was to meet with
the full board of directors.
The meeting broke up abruptly, and some staff members
went to Eisenhart's house. That evening there was a general
meeting of the staff at Eisenhart's just as on the previous
three evenings. Hedegard did not attend this meeting; on
0 There is no evidence to show that the members of the board knew that
some employees had attempted to return to work earlier that morning. Berk
testified that he did not know that any employees had returned to work.
While attorney Bennett testified that he knew that some employees had
returned to work. he did not claim to have imparted that information to any
board member.
l Cannan denied that he stated that Eisenhart's reinstatement was a con-
dition of their returning to work, claiming that he said it was "one of the
things they wished to talk about." At a hearing before the Cumberland
County Superior Court on July 29 and 30, 1974, the transcript showed that
Carmnnan had testified that one of the conditions of the group for a return to
work was the reinstatement of Eisenhart. Cannan was not a forthright wit-
ness, and repeatedly replied that he could not recall what he said at the July
II meeting; at one point he stated I don't remember what I said that day."
I credit Berk's and Bennett's testimony that Cannan stated that one of the
conditions of the group's return to work was the reinstatement of Eisenhart.
22 The General Counsel in his brief conceded that "some employees" an-
swered in the affirmative when asked if it was correct that the reinstatement
of Eisenhart was a condition of their returning to work.
2 Attorney Bennett testified that the employees were told that if they left
because they were requiring Eisenhart's reinstatement they were terminating
their employment.
the next morning, upon going to see Director Bennett, he
resumed his employment.
G. The July 18 Request To Return to Work
By letter dated July 18, 20 employees of the rehabilita-
tion staff, including Eisenhart, signed a letter addressed to
Director Bennett that read as follows:
Please be advised that on July I i, 1974, the Rehabilita-
tion Staff of Abilities and Goodwill was told by Arthur
Bennett or staff members under his instructions not to
return to work until further notice. On July 12, 1974 a
court restraining order made it a criminal offense for
any of us to return to work on Goodwill property.
Please be advised that we are willing to return to work
unconditionally because of our concern for our clients.
On July 22, attorney Bennett, by a letter addressed to
attorney McGuire, responded to the staffs letter (G.C. Exh.
5). Bennett acknowledged that their letter stated that they
were willing to return to work unconditionally, and he then
went on to state:
However, that letter also reveals a serious misconcep-
tion of the instructions given by me to the various
members of the Rehabilitation Staff on the morning of
July 11, 1974. At that time, I informed all the employ-
ees who were present outside the board meeting at the
Elma L. Mitchell Vocational & Medical Center that
their service with Abilities and Goodwill was termi-
nated. Any instructions given earlier that day by Mr.
Arthur Bennett or various staff members were obvi-
ously superceded at that time.
The attorney's letter concluded by stating that the facility
was willing to accept applications from the signatories of
that letter, but that each such application would be consid-
ered as a new application.
H. Analysis and Conclusions
Both the General Counsel and Respondent cite the same
Board decision as containing the fundamental Board law
applicable to the instant case, Dobbs Houses, Inc., 135
NLRB 885, 888-889 (1962). In Dobbs Houses, 16 waitress-
employees walked out following the discharge of the assist-
ant manager. The respondent therein contended that the
assistant manager's discharge was the cause of the strike,
and that when the employees struck in protest of such dis-
charge they were not engaged in protected activity. In find-
ing that the employees were engaged in a protected eco-
nomic strike, the Board said:
. . concerted action by employees to protest an em-
ployer's selection or termination of a supervising em-
ployee is not automatically removed from the protec-
tion of the Act. Each case must turn on its facts.
Where, as here, such facts establish that the identity
and capability of the supervisor involved has a direct
impact on the employees' own job interest and on their
performance of the work they are hired to do, they are
legitimately concerned with his identity. Therefore,
strike or other concerted action which evidences the
37
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees' concern is no less protected than any other
strike which employees may undertake in pursuit of a
mutual interest in the improvement of their conditions
of employment.
The record is clear that Eisenhart intensely disliked and
disrespected the executive director, Arthur Bennett. As to
the meeting of June 26 called by Board President Berk to
learn why the two were not getting along, I have credited
Berk's testimony that Eisenhart's criticisms were his per-
sonal feelings and experiences against the director, chiefly
related to financial matters of the agency, and were not the
criticisms of his staff.
However, when the board president opened the door to
Eisenhart to present his written complaints, it is clear that
Eisenhart availed himself of the opportunity to include
therein all of the individual complaints of the employees on
his staff. At the June 28 staff meeting, grievances of individ-
ual staff employees were discussed. Hedegard, who later
spurned the strike and returned to work to aid the handi-
capped, admitted that Eisenhart had requested the 20 staff
members present to compile any grievances they had relat-
ing to their programs. After Eisenhart stated that he prob-
ably would be fired, it was also agreed that the group would
take some action to protect Eisenhart or any other member
of the staff. Plainly, the members of the rehabilitation staff
linked themselves and their problems at the agency with
Eisenhart.
During the following week, some employees did work at
compiling grievances. Hedegard's report to Eisenhart
pointed up the need of new furnaces, furniture, and carpet-
ing which would make the Ingraham House more livable.
Director Bennett knew that employees were meeting with
Eisenhart; on the day of Eisenhart's discharge, he informed
Berk that Eisenhart had been holding meeting after meeting
with his staff to destroy the organization.
On the evening of July 8, the day on which Eisenhart was
discharged, the vast majority of the rehabilitation staff
showed its common cause with its director by gathering at
his house to plan what their future course of action should
be. Again, relying on the testimony of Hedegard, Respon-
dent's own witness, the members of the staff mutually
agreed to call in sick the next morning, so "that would give
us time to get together to finalize the preparation of this
grievance list." By now their own conditions of employ-
ment had surfaced, and they were looking to Eisenhart to
present them to the board of directors.
On the following 2 days, senior staff members, with
Eisenhart's guidance, took the individual statements of
grievances that had been submitted by members of the staff,
read them, and compiled them into the task force report. It
is true that this report is not similar in style or contents to a
standard form of grievance that is normally filed in an in-
dustrial plant situation. The report contains charges of fi-
nancial mismanagement, nepotism, dishonesty, and incom-
petency that relate to management functions. However, the
report also contains basic grievances of employees affecting
their working conditions, as well as a grievance on the
wages paid to females and a grievance requesting a pension
for all employees.
During the 2 days that the employees were engaged in
the sickout, it is clear that they were engaged in protected,
concerted activity by remaining off their jobs, and were, in
fact, engaged in an economic strike. Citizens Trust Bank,
206 NLRB 320 (1973); Lisanti Foods Inc., 227 NLRB 898
(1977). Respondent does not contend that this job action
was illegal and in its brief states that there is no evidence
that the employees were discharged for engaging in the
sickout, and I so agree.
Turning now to the morning of July I I, there undoubted-
ly was some confusion with the board members assembled
in one room and the employees in an adjoining room. The
board members were unaware that any employees had at-
tempted to return to work earlier that morning, and their
basic instruction to Berk and attorney Bennett was to get
the employees back to work to take care of the agency's
handicapped clients.
But it is clear that when Berk and attorney Bennett met
with the assembled employees, the employees had two de-
mands that had to be met before they would return to
work: (I) that Eisenhart, their leader and catalyst, be rein-
stated; and (2) that the employees have a meeting with the
full board of directors, in order to present their grievances,
as specified in the task force report, face-to-face. An earlier
analysis of the grievances clearly reveals that a number of
the grievances concerned the day-to-day working condi-
tions of the employees, such as additional bathrooms, new
furnaces, private offices, additional help, and a new griev-
ance system. Such working conditions, good or bad, plainly
affected their efficiency in the performance of their duties.
These employee grievances on working conditions at the
various branches not only affected their ability to perform
their own duties, but also affected Eisenhart's ability to suc-
cessfully operate the rehabilitation department, so that the
grievances were interacting; the employees' grievances were
Eisenhart's grievances. For these reasons, the discharge of
Eisenhart was a matter of legitimate interest to the staff
employees, and the loss of their spokesman would have a
substantial impact upon their own working conditions. On
the facts of this case, it was therefore permissible for the
employees to engage in a strike in protest of Eisenhart's
discharge and also to compel his reinstatement. Plastilite
Corporation, 153 NLRB 180 (1965); Kelso Marine Inc., Kel
Stress Division, 199 NLRB 7 (1972); F. C. F. Papers Inc., A
Division of the Mead Corporation, 211 NLRB 657 (1974).
It is true that the employees had turned down the request
of board members Shapiro, Corey, and Reilly to tell them
their grievances at the subcommittee meeting on July 10,
but there is no question that the employees had grievances
about conditions that actually existed at the agency.
Whether the staff's position in demanding a meeting with
the full board so as to present these grievances was reason-
able or unreasonable is not material. What is material is
that these unrepresented employees had a right to demand
such a meeting to protest existing working conditions under
Section 7 of the Act, and their demand to do so was pro-
tected concerted activity, for which they could not be termi-
nated.
This is not to say that Respondent had to yield to the
employees' demand to reinstate Eisenhart, as such a deci-
sion is clearly a management prerogative. Undoubtedly, on
the morning of July I Respondent and its employees were
locked in a bitter confrontation, with the handicapped cli-
ents caught in the middle. However, such hardship does not
38
ABILITIES AND GOODWILL
permit an employer to violate the Act. When the meeting
broke up, there would have been no violation of the Act.
had not Respondent terminated the employees. This it may
not do, as it is fundamental that an employer may not dis-
charge employees for engaging in protected concerted ac-
tivity guaranteed in Section 7 of the Act. By its discharge of
these employees, Respondent converted an economic strike
to an unfair labor practice strike, and the terminated em-
ployees became unfair labor practice strikers.
During the following week, since the employees did not
notify Respondent that they were changing their position
from a conditional request to return to work to an uncondi-
tional one, Respondent was under no duty to reinstate
them. However, the jointly signed letter of July 18 was
plainly an unconditional offer to return to work, and the
employees at that time were entitled to be reinstated to
their former or substantially equivalent positions of em-
ployment. This Respondent refused to do, and thereby vio-
lated Section 8(a)( 1) of the Act.
CONCLUSIONS OF LAW
I. Abilities and Goodwill, Inc., is an employer engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. The work stoppage which began on July 9 was pro-
longed by Respondent's unfair labor practice.
4. By discharging and refusing to reinstate the 21 striking
employees listed below because they engaged in protected
concerted activity for their mutual aid and protection, Re-
spondent has interfered with, restrained, and coerced its
employees in the exercise of rights guaranteed them in Sec-
tion 7 of the Act, in violation of Section 8(a)(l) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I find it necessary to order Respon-
dent to cease and desist therefrom and to take certain affir-
mative action designed to effectuate the policies of the Act.
To remedy Respondent's unlawful discharge and refusal
to reinstate the strikers when they made an unconditional
application by letter dated July 18, 1974, to return to work,
Respondent will be required to offer each of them immedi-
ate and full reinstatement to his or her former job or, if such
job no longer exists, to a substantially equivalent job, with-
out prejudice to his or her seniority or other rights and
privileges, and make each of them whole for any loss of
earnings he or she may have suffered by reason of the dis-
crimination against him or her. Such backpay shall be com-
puted on a quarterly basis, with interest therein to be com-
puted in the manner prescribed in F. W. Woolworth
Company, 90 NLRB 289 (1950), and Florida Steel Corpora-
tion, 231 NLRB 651 (1977).24
4See, generally. Isis Plumbing Heating Co, 138 NLRB 716 (1962).
Upon the foregoing findings of fact and conclusions of
law, upon the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER"
The Respondent, Abilities and Goodwill, Inc., Portland,
Maine, its officers, agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Discharging, refusing to reinstate, or otherwise dis-
criminating against its employees because they have en-
gaged in protected strike, work stoppage, or other concerted
activity for their mutual aid or protection.
(b) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of their
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Offer to the employees named below (excluding Mar-
vin Tanck, who has been reinstated), immediate and full
reinstatement to their former jobs or, if their jobs no longer
exist, to substantially equivalent positions without prejudice
to their seniority or other rights and privileges, and make
them(including Marvin Tanck), whole for their loss earn-
ings in the manner set forth in The Remedy. The employees
are: David Adams, Robert Anderson, Donald Cannan, Ce-
celia Cormier, Kathleen Dunn, Maureen Fagan, Donald
Flanders, Cecile Gagne, Robert Gross, Meredith Hewitt,
Naomi Kronlokken, Johanna Linnehan, Corinne Lynds,
Donna Quinn, Richard Schott, Rosanna Spurling, Jan
Strout, John Sullivan, Marvin Tanck, Elise Thibodeau, and
Carl Wilder.
(b) Preserve and, upon request, make available to the
National Labor Relations Board or its agents, for examina-
tion and copying, all payroll records, social security pay-
ment records, timecards, personnel records and reports, and
all other records necessary to effectuate the reinstatement
and backpay provisions of this Order.
(c) Post at its facilities in Portland, Maine, copies of the
attached notice marked "Appendix."6 Copies of the notice,
on forms provided by the Regional Director for Region 1,
after being duly signed by Respondent's authorized repre-
sentative, shall be posted by Respondent immediately upon
receipt thereof, and be maintained for 60 consecutive days
thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to insure that the
notices are not altered, defaced or covered by any other
material.
(d) Notify the Regional Director, in writing, within 20
days from the date of this Order, what steps the Respon-
dent has taken to comply herewith.
25 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
16 In the event that this Order is enforced by a judgment of a United States
court of appeals. the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
39