Anna Erika Home For Adults

National Labor Relations Board - Board Decisions

Jun 26, 1990

298 N.L.R.B. 924 (N.L.R.B. 1990)

924 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Joseph F. Sirangelo, Vincent Sirangelo , Phillip
Emma, Angelo Servideo and Joseph Cillo d/b/a
Anna Erika Home for Adults and Local 1115,
Nursing Home and Hospital Employees Union.
Case 29-CA-13914
June 26, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On March 7, 1990, Administrative Law Judge
Raymond P. Green issued the attached decision.
The Respondent filed exceptions and a supporting,
brief.
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
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings,' and
conclusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Joseph F.
Sirangelo, Vincent Sirangelo, Phillip Emma,
Angelo Servideo and Joseph Cillo d/b/a Anna
Erika Home for Adults, Brooklyn, New York, its
officers, agents, successors, and assigns, shall take
the action set forth in the Order.
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
Elizebeth Orfan, Esq., for the General Counsel.
Sanford E. Pollack, Esq. and Steven B. Horowitz, Esq.
(Horowitz & Pollack, PC.), for the Respondent.
Richard M. Greenspan, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge. This
case was tried in Brooklyn, New York, on August 14
and 15, and October 12 and 13, 1989. The charge was
filed on February 7, 1989, and the complaint was issued
on March 26, 1989. In essence, the complaint alleged
that the Respondent:
1. Interrogated employees concerning their activities
and membership in the Unions involved in this case.
2. Urged and encouraged employees to abandon their
activities and support for the Charging Party.
3. Threatened employees with discharge in they con-
tinued to engage in union activities.
4. Threatened to file a lawsuit against employee
Eugene Wimmer because he accused the Respondent of
engaging in unfair labor practices.
5. Discriminatorily discharged employees Eugene
Wimmer and Steven Taylor.
On the entire record, including my observation of the
demeanor of the witnesses, and after considering the
briefs filed, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent admits and I find that it is an employ-
er engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act. The Respondent also admits
and I find that Local 1115, Nursing Home and Hospital
Employees Union (Local 1115) and District 6, Interna-
tional Union of Industrial, Service, Transport and Health
Employees are labor organizations within the meaning of
Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
For a number of years the Respondent had a collec-
tive-bargaining relationship with District 6, International
Union of Industrial, Service, Transport and Health Em-
ployees (District 6). The most recent contract between
District 6 and the Respondent ran from May 5, 1986, to
November 30, 1989.
Petitions for an election were filed by Local 1115 on
January 9, and March 3, 1989 and pursuant to a Direc-
tion of Election issued on July 14, 1989, a secret ballot
election was conducted by the Regional Office of the
NLRB on September 7, 1989. At the election, Local
1115 received 18 votes, District 6 (the Intervenor), re-
ceived 1 vote and 5 votes were cast against both Unions.
There also were 13 challenged ballots.
In relation to the election, ultimately on October 27,
1989, the Regional Director after an investigation con-
cluded that certain objections to the conduct of the elec-
tion filed by the Employer and by District 6 were with-
out sufficient merit to set aside the election. He also con-
cluded, after determining that some of the challenged
voters were not eligible to vote, that the challenges were
insufficient in number to affect the outcome of the elec-
tion. The Regional Director therefore certified Local
1115 as the bargaining representative.
B. Operative Facts
Eugene Wimmer was employed by the Respondent
since May 5, 1988, as a porter and was scheduled to
work 5 days per week with Fridays and Saturdays off.
Steven Taylor began his employment as a porter in early
January 1989. Both worked on the day shift.
In October 1988 employee Angelina Pagamucci told
Wimmer that she wanted to step down as the shop stew-
ard for District 6. Wimmer expressed an interest in the
298 NLRB No. 141
ANNA ERIKA HOME 925
position and within a month he had been designated by
default as the shop steward.
In late November 1989, Local 1115 commenced an or-
ganizing campaign at the Respondent. On November 30
Union Representative Guy Masters introduced himself to
Wimmer who expressed an interest in that Union. As a
consequence, Wimmer signed an authorization card for
Local 1115 and began soliciting on its behalf.
During the campaign by Local 1115, Guy Masters
made a habit of parking his car near the facility. After
work, Wimmer made a habit of talking with Masters by
the car. In January 1989 when Taylor was hired, he cus-
tomarily joined Masters and Wimmer after work.
Sometime around the second week of January 1989,
the Respondent's administrator Vincent Sirangelo asked
Wimmer if he was engaging in organizing efforts for a
union other than the incumbent, District 6. At first
Wimmer denied this, but after being asked again, he con-
ceded that this was so. Sirangelo then said that Wimmer
was being unfaithful and should -step down as the Dis-
trict 6 shop steward. Wimmer responded that it was not
up to Sirangelo to ask him to resign as shop steward;
that this was up to District 6. (This transaction is essen-
tially admitted by the Employer.)
Wimmer asserts that about a week later, Sirangelo
called him into the office and asked if he (Wimmer) had
made any decision about resigning as shop steward.
Wimmer repeated that this was not up to Sirangelo but
was a matter between Wimmer and District 6.
On January 30, Wimmer asserts that he did not feel
well and after reporting his physical condition to Super-
visor Larry Lewis, was told to see a doctors. According
to Wimmer just prior to leaving the facility, to go to
Staten Island Hospital, he left a letter on the desk of Sir-
angelo's secretary for delivery to him. This letter, which
mistakenly is dated November 30, reads, in pertinent
part:
On 1/30, 1988 I was approached by Vincent Sir-
angelo . . . I was approached and asked to step
down from my shop steward position. At the time I
was totally off guard, I didn't have any witness
with me to vouch for what I am saying, or what
was said to me. At this time I am informing you by
written statement-to the administrator who is "Vin-
cent Sirangelo," I am not stepping down as shop
steward. After consulting and receiving legal advice
in this matter , I would like to know, why manage-
ment is acting as a union or management partici-
pates in union contracts for the people of Anna
Erika.
Enclosed is a letter from "The National Labor
Relations Board. . . . The rights of all employees of
Anna Erika are being violated. According to the
enclosed letter, which is from the Labor Board.
The employees of Anna Erika has a right to choose,
not one that is dictated by management. The reason
for a union is to protect all employees from unfair
practice from Management.
On February 1 Wimmer did not go to work and did
not call in until 3 p.m. because he asserts that he was ill
and had overslept.
On February 2, Wimmer states that he went in to
work and gave to Larry Lewis a letter from the hospital
setting forth a description of his illness. According to
Wimmer, at about 10 a.m., he was called into Sirangelo's
office and told that the hospital note was no good be-
cause it was undated. He states that Sirangelo told him
to punch out and to go back to the hospital to get a new
note. Wimmer also states that before he left, Sirangelo
told him that Larry Lewis was going to give him
(Wimmer), a letter to sign . This turned out to be a Warn-
ing Report indicating that a warning was being issued to
Wimmer for failing to call in on February 1 to report
that he would not be into work. Wimmer had never re-
ceived any prior warnings.
Upon Wimmer's return from the hospital, Sirangelo
took the new note as acceptable. At the same time, Sir-
angelo told Wimmer that he wanted to have a meeting
with him and he asked Trapp (Assistant Administrator),
and District 6's' former shop steward, Angelina Paga-
mucci, to attend as witnesses . Wimmer, for his part asked
Steven Taylor to attend as his witness. According to
Wimmer and Taylor when they arrived at the meeting
they were told by Sirangelo to remove their Local 1115
pins. They state that Taylor complied but that Wimmer
refused. Wimmer additionally asserts that Sirangelo
stated that anyone seen wearing a Local 1115 pin would
be immediately terminated. Taylor on the other hand,
testified that in the context of discussing buttons, Siran-
gelo said that he didn't want anyone talking about Local
1115 in the facility because it was not a recognized
Union, and that if anyone did they would be fired.
Apart from what was said at the commencement of
the meeting (regarding union buttons), there is not much
dispute as to what was said during the remainder of the
meeting on February 2.1 Sirangelo first acknowledged
receiving Wimmer's January 30 letter quoted above, but
asserted that there was no enclosure as indicated. At this
point, Wimmer handed Sirangelo an NLRB notice form
which set forth the Section 7 rights of employees. Siran-
gelo then asked Wimmer why he (Wimmer) was claim-
ing that the Company was violating his rights and
Wimmer responded that both Sirangelo and Trapp were
interrogating employees including himself. Sirangelo
thereupon read out loud letter that he had written to
Wimmer and also handed a second letter to Winimer
which was from District 6. The letter from Sirangelo to
Wimmer read as follows:
i I received into evidence as R Exh 7, a tape recording which Siran-
gelo made of the February 2 meeting The contents of this recording
confirms each side's version of the meeting itself There was some dispute
however, as to what took place immediately before the meeting began
and what was said after the meeting ended Wimmer and Taylor assert
that before the discussion ensued, Sirangelo told them to remove union
buttons. They also state that after the meeting ended, Wimmer asked for
and obtained permission to leave early Neither of these transactions were
on the tape recording That fact, however, is not inconsistent with the
assertions by Taylor and Wimmer that they occurred Sirangelo used a
hand held tape recorder which he controlled at all times It is likely, in
my opinion, that he simply did not record any introductory remarks and
did not record what took place after the meeting ended
926 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
I am in receipt of your letter dated January 30,
1989, in which you made reference to me, .. .
asking you to step down as Shop Steward for Dis-
trict 6.
I wish to clarify that on January 23, 1989 I asked
you to let me know if you are still Shop Steward
for District 6, or are you working for Local 1115.
I asked you this for clarification purpose so I
know who I am talking to, District 6 or 1115, at
that time you told me you would let me know by
Thursday, January 26, 1989, but you did not.
So on Monday, January 30, 1989, I again asked
you, at that time you told me you are resigning
from District 6, I said, "fine, post your letter of res-
ignation by the time clock."
I wish to clarify that the Home is not in violation
with the National Labor Relations Board, as you
stated in your letter and I further take personal ref-
erence to your slanderous statement that I inter-
fered with Union Activities in the Home and unless
you immediately cease from any further slanderous
remarks, you will be terminated from employment
and I will sue you for slander.
The letter from District 6 to Wimmer read:
It has come to my attention, Mr. Wimmer is now
claiming to represent Local 1115. Local 1115 is not
the certified bargaining agent with Anna Erika, Dis-
trict 6 is and therefore he cannot have interest in
the welfare of our members at Anna Erika.
According to Wimmer and confirmed by Taylor, at
the conclusion of the meeting, he told Sirangelo that he
was tired and asked for the remainder of the day off.
Permission was given, but instead of going home,
Wimmer spent the rest of the day outside with Guy Mas-
ters of Local 1115. After finishing his shift, at about 4:30
p.m., Taylor joined Wimmer and Masters outside the fa-
cility.
Sirangelo testified that at the conclusion of the Febru-
ary 2 meeting, Wimmer said that he felt sick and was
given permission to leave early. Sirangelo states that at
about 3. p.m. he was informed that Wimmer was outside
the facility handing out Local 1115 literature He further
states that at about 5:30 he went outside to confirm for
himself that Wimmer was there and that he was angry
because Wimmer had earlier claimed that he was ill and
wanted to go home.
Steven Taylor testified that after the meeting on Feb-
ruary 2, but on the same afternoon, he was told to go to
Trapp's office where she gave him a written warning
notice to sign and which related to an absence on Janu-
ary 23, 1989. According to Taylor, when he asked how
come this warning was given more than a week after the
absence, Trapp did not respond.
Regarding the warning notice referred to above,
Taylor states that the one he was asked to sign dealt
only with a single absence and made no mention of his
failure to buy a uniform. Thus, he states that the warning
notice which was received into evidence and dated Feb-
ruary 2 was not the same as when it was presented to
him. on that date. That is, Taylor asserts that those por-
tions of the notice relating to uniforms were added after
he signed it. He testified that Trapp made no mention of
uniforms at all.
With respect to uniforms, it seems that porters are sup-
posed to wear brown shirts and pants. It also appears
that during the brief time that Taylor was employed, he
did not buy these items asserting that he could not afford
to do so. Although Sirangelo asserted that Taylor's Su-
pervisor Larry Lewis had spoken to Taylor several times
about getting a uniform, Lewis testified that he spoke to
Taylor but once on this subject. Moreover, although Re-
spondent asserted that failing to obtain a proper uniform
is grounds for discharge, it could not point to any person
who in the past had been discharged for this reason. (I
do not take seriously, Respondent's assertion that in the
past many employees, when told that they needed to get
uniforms , simply left of their own accord.) I also note
that Respondent's witnesses Trapp and Lewis testified
that Taylor was a good and responsible worker who
shortly before his discharge was going to be shifted to
work on the night shift because of his reliability. (Trapp
also testified that it was difficult for the Respondent to
get good workers because of the pay scale and that it
therefore was unusual for discharges to occur without a
substantial prior record by the employees in question.)
The General Counsel called a witness, Christina Phil-
lips, who testified to a conversation with Sirangelo on
February 2, 1989. According to Phillips, she and another
employee Nicole Velasco, were wearing Local 1115 but-
tons when Sirangelo asked if Local 1115 was coming in.
She states that when the two employees said they' didn't
know, Sirangelo said that Local 1115 would not be
coming in if he had anything to do with it. According to
Phillips, Sirangelo asked where Wimmer was getting all
the support for Local 1115 and said: "why don't we
work with the' Union that we already have?" Phillips
states that at one point the other employee started to
take off her Local 1115 pin whereupon Sirangelo told
her to leave it on as he couldn't tell her what to do. Ac-
cording to Phillips, she said that the employees never
saw the representative of District 6 and didn't know his
name, whereupon Sirangelo, after asking if they would
be interested in becoming District 6 shop stewards, sug-
gested that they talk with Angelina Pagamucci.2 Phillips
also testified that during this conversation, Sirangelo said
that he would have to lay some people off to pay for
what Local 1115 wanted.
On February 6, 1989, the Respondent discharged both
Wimmer and Taylor. Sirangelo testified that his reason
for discharging Taylor was because Taylor had not yet
gotten a uniform and refused to do so when asked., Siran-
gelo claims that he discharged Wimmer because of Wim-
mer's failure to call in when absent on February 1 cou-
pled with the alleged false claim by Wimmer that be was
2 Although not entirely clear, it appears that after this conversation on
February 2, Phillips spoke with Pagamucci and was appointed to a bar-
gaining committee that District 6 forced to deal with the Respondent in
negotiations. It also appears that when Phillips missed some of the meet-
ings, both Pagamucci and on one occasion in late February, Sirangelo
asked her why she wasn't at the meetings.
ANNA ERIKA HOME
sick on February 2 which he used to obtain permission
to leave early.
III. ANALYSIS
The facts establish that in mid-January 1989, Wimmer
was asked by Sirangelo if he was engaging in organiza-
tional activities on behalf of a union other than the in-
cumbent, District 6. Although initially denying this,
Wimmer admitted the activity when Sirangelo repeated
the question. Upon being told that Wimmer was engag-
ing in such activity, Sirangelo said that Wimmer should
step down as shop steward for District 6. Wimmer in
turn, responded that this was none of Sirangelo's busi-
ness.
The General Counsel alleges that by questioning
Wimmer in the manner described above, the Respondent
has engaged in coercive interrogation in violation of Sec-
tion 8(a)(1) of the Act. I do not agree. At the time this
incident occurred, Wimmer had been openly engaged in
organizational activity on behalf of Local 1115 and was
spending considerable time outside the facility openly so-
liciting with Local 1115 Business Agent Guy Masters.
Additionally, it seems to me that Sirangelo had a legiti-
mate reason for confirming Wimmer's activities for
Local 1115 because at the time, Wimmer was the shop
steward for District 6. In such circumstances, I can see
that it would be reasonable for the Employer to ascertain
if in dealing with a union representative (for example on
grievances), he would be faced with a person who would
be in a conflict of interest situation, As this interrogation
was not at the time accompanied by any real or implied
threats and as it occurred in the circumstances described
above, I do, not believe that it constituted a violation of
the Act. Rossmore House, 269 NLRB 1176 (1985).3
I shall also recommend the dismissal of the allegations
relating to the interrogation of Christina Phillips. In this
respect, it was shown that at the time of the alleged in-
terrogation, Phillips and Velasco were wearing Local
1115 buttons and therefore were openly displaying their
support for that union. Also from her testimony, it
would appear that the conversation was casual. Al-
though she contended that Sirangelo said that he would
have to lay off employees in order to pay for what Local
1115 wanted, it is my opinion that Phillip's testimony
was too disjointed and tentative to convince me that a
threat was made in this particular instance.
Subsequent to the incident described above, Wimmer
wrote a letter to Sirangelo which he delivered on Janu-
ary 30. In this letter Wimmer objected to the suggestion
that he step down as District 6 shop steward and further
indicated his perception that Sirangelo was interfering
with the rights of the employees to choose. This prompt-
ed the meeting of February 2, 1989',, wherein the General
Counsel contends that the Respondent violated the Act
in various ways.
3 In my opinion, the cases cited by the General Counsel are inopposite.
In both Kona 60 Minute Photo, 277 NLRB 867 (1985), and Sunnyvale
Medical Clinic, 277 NLRB 1217 (1985). the interrogations involved em-
ployees who were not open supporters of a union In Churchill's Super-
markets, 285, NLRB 138 (1987), to the extent that the Board found that
certain interrogations of open union supporters were unlawful, such inter-
rogations were accompanied by unlawful threats
927
There is no dispute that at the February 2 meeting Sir-
angelo read to Wimmer a letter wherein in response to
Wimmer's January 30 letter, Sirangelo stated that the
Respondent was not in violation of the "National Labor
Relations Board as you stated in your letter." Sirangelo
further asserted that Wimmer's letter was slanderous by
stating that Sirangelo interfered with union activities. Fi-
nally, Sirangelo threatened that unless Wimmer ceased
making any further slanderous remarks, he would be dis-
charged and sued.
Whether or not Wimmer was legally correct in his
conclusion that Sirangelo 's previous interrogation and
suggestion that he resign as shop steward was unlawful
interference, Wimmer's assertions in his January 30 letter
were clearly made in good faith and were arguable at
the least. Accordingly , it is my opinion that Sirangelo's
threats to discharge and sue Wimmer for asking "slan-
derous" statements exceeded the bounds of permissible
conduct and constituted unlawful interference with em-
ployee's Section 7 rights.4
The credited testimony of Wimmer and Taylor also es-
tablished that at the commencement of the February 2
meeting, Sirangelo directed them to remove the Local
1115 buttons that they were wearing. Also, in light of
the admitted threat by Sirangelo to discharge Wimmer
made later in the meeting, it seems to me that it is proba-
ble that Sirangelo also threatened (as contended by
Wimmer), to discharge any employees who wore such
buttons. Accordingly, I conclude that in this respect the
Respondent violated Section 8(a)(1) of the Act. NLRB v.
Malta Construction Co., 806 F.2d 1009 (11th Cir. 1986);
Cannon Industries, 291 NLRB 632 (1988); Page Avjet
Corp., 275 NLRB 773 (1985); Albertson's Inc., 272 NLRB
865 (1984); Dixie Machine Rebuilders, 248 NLRB 881,
882 (1980).
There is no doubt as to the Company's knowledge of
Wimmer's activities on behalf of Local 1115. Nor is
there any doubt that Sirangelo was upset by the fact that
Wimmer was engaged in such activities -while at the
same time occupying the position of District 6 shop
steward. Also, it is evident that Sirangelo figuratively
"hit the ceiling" when Wimmer on January 30 accused
him of interfering with the rights of the employees.
Thus, on February 2, Sirangelo threatened Wimmer with
discharge for the latter's supposedly slanderous state-
ments against him. Given these facts, it is not difficult to
state that the General Counsel has met her burden of es-
tablishing, prima facie, that the Respondent's discharge
of Wimmer on February 6 was illegally motivated. As
such under Wright Line, 251 NLRB 1083 (1980), enfd.
622 F.2d 899 (1st Cir. 1981), cert, denied 495 U:S. 989
(1982), the burden is shifted to the Respondent to estab-
lish that it would have discharged Wimmer for good
cause despite his protected activity.
The Respondent's assertions concerning its reasons for
discharging Wimmer are not persuasive to me.
4In S.E. Nichols Marcy Corp., 229 NLRB 75 (1977), the Board held
that the respondent violated Section 8(a)(1) of the Act by threatening to
institute a slander suit against an employee because of an antiunion state-
ment she credibly claimed had been made to her by a supervisor.
928 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
It is true that Wimmer_on February 1 did not come to
work and did not call in until the afternoon. However, it
is also true that on the previous day he had gotten per-
mission to leave early on account of illness. On the
morning of February 2 Wimmer was given a warding by
Trapp for not calling in. Yet according to Trapp such a
warning would not ordinarily be given in the absence of
several previous occurrences. Moreover, she testified
that her general practice (not followed in Wimmer's
case), was to call employees at home who for one reason
or another hadn't arrived and hadn't called. As the issu-
ance of a warning to Wimmer on account of his absence
on February 1 was contrary to past practices and was
given immediately following the receipt of his January
30 letter, the inference is that the warning was not given
because of Wimmer's failure to abide by company rules
but rather because of his protected activity.
The proximate cause of Wimmer's discharge according
to the Respondent was the fact that he was outside the
facility on the afternoon of February 2, engaged in union
activity when he had earlier claimed that he was too sick
to be at work and had received permission to go home.
There is in fact no dispute that Wimmer did receive
permission to leave early on February 2. Sirangelo
claims that Wimmer specifically asserted that he was too
sick to continue to work the remainder of the day.
Wimmer on the other hand, claims that he did not assert
that he was sick. According to Wimmer, in response to
Sirangelo's threats, he told Sirangelo that he was disgust-
ed, tired, and wanted to take the rest of the day off to
get his thoughts together.
I credit Wimmer's account. But even if I were to
credit Sirangelo's testimony I would still conclude that
the Respondent had not met its burden of establishing
that it would have discharged Wimmer for reasons unre-
lated to his protected activity. As noted above, Wimmer
had no previous warnings, he clearly was a good worker
and the Respondent, as shown by the testimony of
Trapp, was extremely reluctant to discharge employees
because of the difficulty in obtaining adequate replace-
ments. Indeed Trapp could not recall anyone other than
Wimmer and Taylor who had been discharged over the
past several years.
With respect to Steven Taylor the evidence shows
that he assisted Wimmer in union solicitation, that he
was asked to attend the February 2 meeting as Wimmer's
witness, and that on that afternoon he was outside with
Wimmer and union representative, Guy Masters. Given
my conclusion that the Respondent unlawfully dis-
charged Wimmer, I conclude for the same reasons that
the General Counsel has established a prima facie case
concerning her allegation that,Taylor was discriminatori-
ly discharged.
As in the case of Wimmer, I conclude that the Re-
spondent has not met its burden concerning its assertion
that it discharged Taylor for good cause. In my opinion
the assertion that Taylor was discharged because he re-
fused to buy a uniform was pretextual. For one thing,
Trapp and Taylor's supervisor Lewis conceded that he
was a very good and reliable worker. Also, the Respond-
ent could not establish that it had discharged any other
employees in the past on account of their failure or re-
fusal to buy a uniform. Finally, I note again the testimo-
ny of Trapp that because of the inability to obtain ade-
quate employees at the wages being offered, the Re-
spondent was exceedingly reluctant to discharge any em-
ployees.
CONCLUSIONS OF LAW
1. By discharging Eugene Wimmer and Steven Taylor
because they joined and/or supported Local 1115, Nurs-
ing Home and Hospital Employees Union, the Respond-
ent has violated Section 8 (a)(1) and (3).
2. By ordering employees to remove union buttons the
Respondent has violated Section 8(a)(1) of the Act.
3. By threatening to discharge employees because they
join or engage in activities in support of Local 1115, the
Respondent has violated Section 8(a)(1) of the Act.
4. By threatening to sue employees because they join
or engage in activities in support of Local 1115 , the Re-
spondent has violated Section 8(a)(1) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
6. Except to the extent found above , the Respondent
has not violated the Act in any other manner as alleged
in the amended complaint.
REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, I find that it must be ordered
to cease and desist and to take certain affirmative action
designed to effectuate the policies of the Act.
At the hearing the Respondent argued that I should
defer to arbitration the discharge cases of Wimmer and
Taylor. I decline to do so for the following reasons:
1. In the case of Taylor, as he was a probationary em-
ployee, the arbitration provisions of the contract between
the Respondent and District 6 do not apply.
2. In the case of both employees, and particularly
Wimmer, as they were instrumental in organizing for
Local 1115 (and ousting District 6), there would be an
inherent conflict of interest between them and District 6.
Cf. Kansas Meat Packers, 198 NLRB 543 (1972); and
Warehouse Employees Local 20408 (Doubousky & Sons),
296 NLRB 396 (1989). As such it would not be reasona-
ble to assume that District 6 would necessarily use its
best efforts to win arbitration cases on their behalf.
3. In a Board-conducted election, the Regional Direc-
tor for Region 29 has certified that Local 1115 and not
District 6 is the collective-bargaining representative of
Respondent's employees. Assuming that this certification
is sustained by the Board, it would, by virtue of Section
8(d) of the Act, nullify any collective-bargaining agree-
ment between District 6 and the Respondent. As such
there would no longer be any contractual basis for going
to arbitration in either Wimmer's or Taylor's case.
The Respondent having discriminatorily discharged
two employees, it must offer them reinstatement and
make them, whole for any loss of earnings and other
benefits, computed on a quarterly basis from date of dis-
charge to date of proper offer of reinstatement, less any
net interim earnings, as prescribed in F. W. Woolworth
ANNA ERIKA HOME 929
Co., 90 NLRB 289 (1950), plus interest as computed in
New Horizons for the Retarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed5
ORDER
The Respondents, Joseph F. Sirangelo, Vincent Siran-
gelo, Phillip Emma, Angelo Servideo and Joseph Cillo
d/b/a Anna Erika Home for Adults, their officers,
agents, successors , and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against
employees because they join or support Local 1115,
Nursing Home and Hospital Employees Union, or any
other labor organization.
(b) Ordering employees to remove union buttons.
(c) Threatening to discharge employees because they
join or engage in activities in support of Local 1115, or
any other labor organization.
(d) Threatening to sue employees because they join or
support Local 1115, or any other labor organization.
(e) In any like or related manner inter fering 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 Eugene Wimmer and Steven Taylor 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.
(b) Remove from its files any reference to the unlawful
discharges and notify Eugene Wimmer and Steven
Taylor 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 copies of the attached notice
marked "Appendix."6 Copies of the notice, on forms
provided by the Regional Director for Region 29 after
being signed by the Respondent 's authorized representa-
tive, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in
conspicuous places including all places where notices to
5 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 See 102 48 of the Rules , be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses,
6 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."
employees are customarily posted . Reasonable steps shall
be taken by the Respondent to ensure that the notices
are not altered , defaced, or covered by any other materi-
al.
(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.
APPENDIX
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.
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 employees because they join or support
Local 1115, Nursing Home and Hospital Employees
Union, or any other labor organization.
WE WILL NOT order employees to remove union but-
tons.
WE WILL NOT threaten to discharge any employees be-
cause they join or engage in activities in support of
Local 1115, or any other labor organization.
WE WILL NOT threaten to sue any employees because
they join or support Local 1115,'or any other labor orga-
nization.
WE WILL NOT in any like or related manner interfere
with, restrain , or coerce employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
WE WILL offer Eugene Wimmer and Steven Taylor
immediate 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 deci-
sion.
WE WILL remove from our files any reference to the
unlawful discharges and notify Eugene Wnnmer and
Steven Taylor in writing that this has been done and that
the discharges will not be used against them in any way.
JOSEPH F. SIRANGELO, VINCENT SIRAN-
GELO, PHILLIP EMMA, ANGELO SERVIDEO
AND JOSEPH CILLO D/B/A ANNA ERIKA
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