Bide-A-Wee Home Association

National Labor Relations Board - Board Decisions

Mar 31, 1980

248 N.L.R.B. 854 (N.L.R.B. 1980)

854 BIDE-A-WEE HOME ASSOCIATION
Bide-A-Wee Home Association and Local 868, an
affiliate of the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America. Cases 29-CA--6404 and
29-CA-6461
March 31, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND TRUESDALE
On August 24, 1979, Administrative Law Judge
Irwin Kaplan issued the attached Decision in this
proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings,' findings, 2
and conclusions of the Administrative Law Judge
and to adopt his recommended Order.3
ORDER
Pursuant to Section 10)c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
I Respondent has excepted to certain rulings made during the hearing
by the Administrative Law Judge. At the hearing, the Administrative
Law Judge sustained General Counsel's objections to certain questions
asked, on cross-examination, by Respondent counsel of General Counsel's
witnesses regarding Technician Juanjo Coronado. The Administrative
Law Judge also refused Respondent counsel's request to direct General
Counsel to turn over to Respondent the investigatory affidavit of Juanjo
Coronado. (Juanjo Coronado did not testify at the hearing.) We have
carefully examined the rulings of the Administrative Law Judge and have
concluded that they are correct.
Moreover, we find that Respondent has not shown that it was adverse-
ly prejudiced by the Administrative Law Judge's rulings. Respondent
contends that those rulings precluded it from showing that Chief Techni-
cian Juanjo Coronado (a statutory supervisor) was an "integral part" of
the organizing effort and was acting as an agent of the Charging Party.
We note that the Administrative Law Judge found that Juanjo Coronado
engaged in significant union activities including promoting the techni-
cians' efforts to unionize and encouraging them to sign union cards. As-
suming, arguendo, that Respondent could have shown further union activ-
ity by Juanjo Coronado, the result in this case would be the same. Re-
spondent has failed to demonstrate how the matters i seeks to prove
would in any way undercut the ultimate findings and conclusions of the
Administrative Law Judge.
2 Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
3 Our Order, of course, does not preclude Respondent from attempting
to prove, in the compliance stage of this proceeding, that the unlawfully
discharged strikers incurred a willful loss of earnings bty continued par-
ticipation in the strike after their date of discharge. See Puerto Rico Fod
Products Corp.. Tradewinds Food. Inc. and Island Can Corp., 242 NLRB
No. 126 (1979).
248 NLRB No. 110
order of the Administrative Law Judge and hereby
orders that the Respondent, Bide-A-Wee Home As-
sociation, Wantah, New York, its officers, agents,
successors, and assigns, shall take the action set
forth in the said recommended Order.
MEMBER TRUESDALE, concurring:
agree that Respondent violated Section 8(a)(1)
and (3) of the Act by discharging and failing to re-
instate striking employees. In so concluding, I note
the uncontroverted evidence that the strike which
began on May 8, 1978, was motivated by, inter alia,
the employees' desire for union representation, con-
cern over job security, dissatisfaction with a 6-day
workweek and the failure to receive overtime for
Sundays and holidays, and the desire of the techni-
cians to be treated as paraprofessionals, all of
which are terms and conditions of employment
over which employees are free to strike. In these
circumstances, I do not deem it necessary to deter-
mine (I) whether Chief Technician Juanjo Corona-
do was, as Respondent contends, the leading union
advocate or (2) whether a strike solely in protest
over Coronado's discharge would have lost its pro-
tected character.
DECISION
STATEMENT OF THE CASE
IRWIN KAPLAN, Administrative Law Judge: This
matter was heard before me at Brooklyn, New York, on
January 10, 11, and 12, 1979. The underlying charges
were filed by Local 868, an affiliate of the International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, herein called the Union, on
May 10 and June 13, 1978, in Cases 29-CA-6404 and 29-
CA-6461, respectively, which culminated in the issuance
on July 31, 1978, of an order consolidating cases, com-
plaint and notice of hearing (amended at the hearing).
The consolidated complaint alleged in essence that on
or about May 18, 1978, Bide-A-Wee Home Association,
herein called Bide-A-Wee or Respondent, discharged
certain named employees because they went out on
strike for collective-bargaining purposes and mutual aid
and protection and that Respondent thereby violated
Section 8(a)(3) and (1) of the National Labor Relations
Act, as amended, herein called the Act. It is also alleged
that Respondent unlawfully interrogated employees in
violation of Section 8(a)(1) of the Act. Respondent filed
an answer (amended at the hearing) conceding, inter alia,
the jurisdictional allegations but denying that it engaged
in any of the alleged unfair labor practices. Respondent
also argued affirmatively that the strike was unprotected
because it occurred principally to protest the discharge
of a supervisor.
Upon the entire record, including my observation of
the demeanor of the witnesses, I make the following:
854 I
BIDE-A-WEE HOME ASSOCIATION 855
FINDINGS OF FACT
I. JURISDICTION
Respondent is a New York corporation engaged in the
business of operating animal shelters, veterinary clinics,
animal cemeteries, and related services. In this connec-
tion Respondent has maintained several offices and
places of business in the State of New York, including
the facility involved herein, located at 3300 Beltagh
Avenue in the town of Wantagh and county of Nassau.
During the past year, and at all other times material
herein, Respondent derived gross revenue in connection
with its business operations in excess of $500,000. Fur-
ther, during the same timeframe, Respondent purchased
and caused to be transported and delivered to its New
York locations pet supplies and other goods and materi-
als valued in excess of $50,000 directly from points locat-
ed outside the State of New York. Respondent admits,
and I find, that Respondent is an employer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
Respondent admits, and I find, that the Union is a
labor organization within the meaning of Section 2(5) of
the Act.
II. THE UNFAIR LABOR PRACTICES
A. Setting
In December 1977 the Bide-A-Wee veterinary techni-
cians employed at its Wantagh facility first contacted
and met with union representatives for purposes of ex-
ploring union representation. The same month a union
meeting was held in the home of alleged discriminatee
Jane Coronado, attended by the Bide-A-Wee technicians
and Business Agent Langston McKay. There were other
union meetings conducted subsequently in Coronado's
home and also in the home of alleged discriminatee
Susan Story.
The Union by letter dated December 12, 1977, assert-
ed that it represented a majority of Respondent's em-
ployees and requested a meeting with Respondent for the
purpose of negotiating a collective-bargaining agreement.
(Resp. Exh. 4.) In addition, the Union filed a representa-
tion petition for an election with the New York State
Labor Relations Board (herein State Board). Respondent
on February 17, 1978,1 filed its own representation peti-
tion in Case 2-RM-1820 with the National Labor Rela-
tions Board New York Regional Office for a unit cover-
ing all its employees employed not only at its Wantagh
location, but additionally for its employees employed at
its facilities in New York City and Westhampton, New
York. While the National Labor Relations Board assert-
ed jurisdiction thereby preempting the State Board from
further processing, the petition was dismissed because it
encompassed too broad a unit. On March 31, the Union
filed a representation petition with the National Labor
Relations Board Brooklyn Regional Office, in Case 29-
RC-4162 for a unit limited to the 10 technicians em-
ployed at Respondent's Wantagh facility. (G.C. Exh.
4(c).) The Brooklyn Regional Office, by Decision and
I All dates hereinafter refer to 1978 unless otherwise indicated.
Order dated May 15, dismissed this petition on the basis
that the unit sought to be represented was too limited in
scope to be appropriate. The Union filed still another
representation petition with the Brooklyn Regional
Office on May 25 in Case 29-RC-4239, describing there-
in a broader unit than requested in its previous petition
and a Decision and Direction of Election issued thereon
dated June 22, which election is blocked pending the dis-
position of the instant proceeding.
As noted above, a number of union meetings were
conducted in the home of Jane Coronado. These meet-
ings were also attended by Jane Coronado's husband,
Juanho Coronado, chief technician at the Wantagh
animal facility who was later found to be a statutory su-
pervisor. 2
Jane Coronado testified that, in January, Dr. Warren
Hoag, director of veterinary services, asked her if she
knew anything about the Union and who started it, to
which she responded in the negative and the subject was
dropped. Dr. Hoag, who did not testify, left Bide-A-Wee
on or about January 30. Virginia Torrone became acting
hospital administrator and acting director at that time.
Dr. Hoag's responsibilities were later shared by Staff
Veterinarians Dr. Joel Rubin and Dr. James Goris, who
on March 28 became acting directors over the surgical
and clinical areas, respectively.
On March 29, Dr. Goris and Dr. Rubin issued a joint
memorandum (C.P. Exh. I) to all the technicians, the
body of which reads as follows:
Effective March 30, 1978, Wards A and B will be
considered part of the clinical area. The recovery
ward will remain under the surgical area.
Within the next week or two we both will be
having conferences with each individual technician
to review clinic procedures. Until these conferences
are completed there will be no other changes in
working or scheduled areas.
According to Dr. Goris and Dr. Rubin, as they were
assertedly unaware of the abilities and educational back-
grounds of the Wantagh technicians, they decided to
conduct interviews to better acquaint themselves with
these employees. The technicians were interviewed gen-
erally one at a time either by Dr. Goris or Dr. Rubin
and sometimes in the presence of both of them over a
period from April 3 to on or about May 5. The employ-
ees interviewed were asked for their opinions regarding
contemplated changes in working conditions, such as ro-
tating their work stations from one area to another and
working Sundays, and some of them voiced displeasure
at these changes. Several technicians testified that they
also objected to training Farmingdale students because
they were concerned about job security and they were
2 Juahno Coronado was discharged on May 8 for insubordination and
charges were subsequently filed by the Union in Cases 29-CA-6404 and
29-CA-6461 alleging, inter alia, that Juanho was terminated in violation
of Sec. 8(aX3) and (1) of the Act. The Brooklyn Regional Office found
that Juanho was a supervisor within the meaning of the Act and accord-
ingly determined that he was unprotected. (Resp. Exhs. (a) and 2(c).)
856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fearful that Respondent would replace them with the stu-
dents they helped train.3
Selin Soliman, a veterinary technician employed in the
clinic, testified that during the course of his interview he
was asked by Dr. Goris his opinion of the Union. Ac-
cording to Soliman, he pointed out to Dr. Goris, relative
to the advantages of having a union, a concern for job
security and better health insurance and Dr. Goris in
turn noted the benefits under Respondent's Blue Cross-
Blue Shield plan. Maureen Reilly, another technician,
testified that Dr. Goris asked her during her interview
whether she had been approached by a union.
According to Dr. Goris and Dr. Rubin, they were un-
aware that the Union was engaged in organizing efforts
at the time the aforenoted interviews were conducted
and they denied that the Farmingdale program was men-
tioned at said interviews. Further, Dr. Goris denied that
he questioned the technicians about the Union but assert-
ed that some of them asked him whether he knew any-
thing about the Union and he responded in the negative.
As noted previously, the interviews were completed
on or about May 5. According to General Counsel's wit-
nesses at or about that time, Respondent Executive Di-
rector Richard Carlson called a meeting and compli-
mented the employees on the work they were doing and
assertedly made assurances that they were secure in their
jobs stating that Respondent had no intention of termi-
nating any of them. On May 8 Respondent discharged
Juanho Coronado, a statutory supervisor and chief tech-
nician, for insubordination. That evening his wife, Jane
Coronado, phoned Union President John Burke and
Business Agent Langston McKay and brought them up
to date regarding the events at Bide-A-Wee including the
discharge of her husband and they in turn told her that
the employees would have to strike. Jane Coronado
called other technicians, informed them of Juanho's dis-
charge, and passed on the Union's call to strike.4
The following day, May 9 at or about 3 a.m., Union
Business Agent McKay appeared at the Bide-A-Wee
Wantagh facility with picket signs and the strike com-
menced with approximately 9 of the 11 technicians par-
ticipating therein.5 There were a number of different
signs which in substance identified Teamsters Local 868
and stated that "Bide-A-Wee is unfair." The strikers
picketed in the street immediately outside Respondent's
gate leading to the animal shelter. Dr. Goris left the fa-
cility to urge the strikers to return to work and was met
by McKay who told him that "the strikers had been co-
erced and abused and browbeaten, and that he is repre-
senting them." According to Dr. Goris he got a few
"obscene gestures" and "obscene comments" but none of
the strikers went back to work.
3 Since 1977 Respondent has maintained a program whereby it helps
train students from the New York State Agricultural School in Farming-
dale, New York, become animal technicians.
4 General Counsel's witnesses Jane Coronado, Marilyn Braunstein,
Rosemarie Cucci, and James Surica testified that they had discussed
going out on strike when Respondent first informed them about changes
in working conditions about I month earlier.
5 The striking employees were Marilyn Braunstein, Jane Coronado,
Rosemarie Cucci, Joyce Dudzinski, Mary Ann Hanley, Maureen Reilly,
Selin Soliman, Susan Story, and James Surica.
According to the striking technicians the principal
reason for the strike was their concern for job security.
A number of technicians testified th,,t this concern which
they asserted they had for some time was heightened by
the discharge of Chief Technician Juanho Coronado,
given the fact that Carlson gave the technicians assur-
ances a week earlier that no one would be terminated.
Further, some of the technicians testified relative to job
security that they were fearful that Respondent would
replace them with Farmingdale students at a lower pay
rate and they were therefore protesting additionally the
further training of these students. Still further reasons
given by the technicians for striking are that they wanted
to be treated as paraprofessionals, and to have the Union
recognized as their collective-bargaining agent. These
reasons were incorporated in a leaflet (G.C. Exh. 2) dis-
tributed to the general public which also protested the
discharge of Juanho Coronado, "because he wanted to
help his fellow employees form a Union." The techni-
cians' complaints are set forth in the leaflet as follows:
1. THE EMPLOYEES ARE FORCED TO WORK SIX (6)
DAYS A WEEK. NO OVERTIME IS PAID FOR SUNDAYS
OR HOLIDAYS.
2. DOCTORS' LACK OF RESPECT TO TECHNICIANS
AS PARAPROFESSIONALS.
3. THE BIDE-A-WEE HOME ASSOCIATION IS RUN BY
A BUREAUCRACY WHOSE ADMINISTRATIVE PERSON-
NEL ARE INCOMPETENT NON-PROFESSIONALS. THE
INTERFERENCE OF THESE NON-PROFESSIONALS RE-
SULTS IN A LACK OF HOSPITAL SYSTEM.
4. JOB SECURITY . . . EMPLOYEES ARE BEING
FORCED TO TRAIN STUDENT TECHICIANS WHEN
THERE IS NO JOB SECURITY FOR THOSE TECHNICIANS
ALREADY EMPLOYED.
On May 18 by letter over Executive Director Carl-
son's name, Respondent terminated all the striking em-
ployees. (G.C. Exhs. 3(a)-(h).) Respondent then hired
permanent replacements. (Resp. Exhs. 3(a)-(f).) By letter
dated June 8, Union President Burke notified Carlson
that the striking employees "will present themselves for
work on Monday June 12." (Resp. Exh. 6.) In a letter
dated June 9, Respondent acknowledged receipt of the
aforementioned union letter but advised "that these ter-
minated employees will not be permitted to return to
work." (Resp. Exh. 7.)
The striking employees, with Jane Coronado as their
spokesperson, appeared at the Bide-A-Wee Wantagh fa-
cility on Monday morning, June 12,6 and informed
Clinic Administrator Virginia Torrone that they were
ready and available to work. Executive Director Carlson
then appeared and notified a local policeman that these
individuals were "terminated personnel" and had the po-
liceman escort them off the grounds. The discharged em-
ployees immediately put on their picket signs and re-
sumed picketing.
6 While the General Counsel's witnesses testified that they offered to
return to work on June 5, 1 find on the basis of the above-noted exchange
in correspondence (Resp Exhs. 6 and 7) that they were obviously mistak-
en and attribute this error principally to the timelag of approximately 7
months to the time they testified.
BIDE-A-WEE HOME ASSOCIATION 857
B. Alleged Interrogation
Jane Coronado testified that in January Dr. Hoag
asked her while they were alone in the surgery room if
she knew anything about the Union and who started it.
According to Coronado, she responded in the negative
and the subject was dropped. It is alleged that by Dr.
Hoag questioning Jane Coronado in this manner Respon-
dent coercively interrogated employees in violation of
Section 8(a)(1).
While Dr. Hoag did not testify, the record reflects that
he was no longer employed by Bide-A-Wee at the time
of the hearing and I therefore draw no negative infer-
ence from Respondent's failure to call him as a witness.
Thus this allegation rests solely on the uncontroverted
testimony of Jane Coronado. On the basis of my observa-
tion of Coronado's demeanor and in the manner she re-
sponded to certain questions I found her to be less than
forthright in several instances. For example, on direct ex-
amination she was asked whether she had at any time
discussed the Union with a member of management and
in response thereto she named Chief Technician Juanho
Coronado. I find the fact that she did not identify
Juanho Coronado as her husband until questioned on
cross-examination tends to reflect negatively on her
credibility. In addition she was not fully responsive on
cross-examination and at times sparred with counsel for
Respondent and I had to caution her from such exercise.
In these circumstances I do not credit the above-noted
remarks ascribed to Dr. Hoag by Jane Coronado and
shall dismiss this allegation.7
It is also alleged that on or about April 15 Dr. Goris
coercively interrogated employees in violation of Section
8(a)(1). In support thereof, Selin Soliman testified that at
the time Dr. Goris and Dr. Rubin conducted the previ-
ously described interviews (April 3 to on or about May
5), Dr. Goris asked him his opinion of the Union. Fur-
ther, Maureen Reilly testified that Dr. Goris asked her
during her interview whether she had been approached
by a union.
Dr. Goris denied that he initiated discussions with em-
ployees concerning the Union but asserted rather that
the employees questioned him about the Union during
the interviews. According to Dr. Goris he was unaware
that the Union was interested in representing employees
at the Wantagh location and he told the employees who
questioned him that he did not know anything about the
Union. Dr. Goris testified that he was in Florida around
January 15 and did not return to Bide-A-Wee until
March 20. He asserted that he had only heard rumors
about the Union and denied that he ever discussed the
subject with Dr. Rubin or any other company official.
It is undisputed that the Union filed a representation
petition with the State Board in December 1977, fol-
lowed by Bide-A-Wee's own representation petition in
February 1978 with the National Labor Relations Board
7 However, on the basis of Coronado's overall demeanor and noting
that a substantial portion of her testimony was corroborated, I credit her
testimony in all other critical areas. "It is no reason for refusing to accept
everything that a witness says, because you do not believe all of it; noth-
ing is more common in all kinds of judicial decisions than to believe some
and not all" N.L.R. v niversal Camera Corporation. 179 F.2d 749, 754
(2d Cir. 1949). reversed on other grounds 340 U.S. 474 (1950))
and a representation hearing was conducted thereon and
that the Union filed still another representation petition
with the Board on March 31. In these circumstances
noting particularly that Dr. Goris became acting director
in the clinic on March 28, I find it incredible that Dr.
Goris would maintain that at the time the interviews
were conducted (April 3 to on or about May 5) that
"[he] had heard rumors [about the Union] but nobody of-
ficially spoke to [him] about it."8 While Dr. Goris con-
ceded that the subject of the Union came up during the
interviews, he asserted, as noted above, that it was the
employees and not he who raised said subject. In this
regard however it is noted that Dr. Goris could not
specify by name any of the employees who assertedly
questioned him about the Union. Thus, he testified, "I
don't remember that because it was treated so lightly
that the fact that I told them that I knew nothing about
the situation with the Union."
On the basis of consistency, responsiveness, plausibil-
ity, and demeanor, I credit the General Counsel's wit-
nesses over Dr. Goris in all material respects.9 Accord-
ingly, I find that Dr. Goris by questioning the employees
about the Union in the manner set forth above without
providing appropriate safeguards from reprisals violated
Section 8(a)(1) of the Act as alleged.
C. Discharged Strikers
The credited testimony discloses that, at all times ma-
terial herein, the technicians were principally concerned
about job security and it was this concern which led
them initially to contact the Union in December 1977.
Their concern about job security persisted during the
succeeding months. Thus even Dr. Goris testified that
when the technicians were interviewed in April and May
they expressed "a feeling that they were insecure in their
jobs." Several of the technicians credibly testified that
they were fearful of being replaced by the Farmingdale
students whom they helped train and they voiced this
concern at the interviews. Dr. Goris testified that the
technicians were told that if they were "punctual and did
their work there would be no reason for insecurity."
The uncontroverted and credited testimony discloses
that, some time during the first week in May, Executive
Director Richard Carlson complimented the technicians
on their work and assured them that they were secure in
their jobs by stating that Respondent had no intention of
terminating any of them. Approximately a week later,
Respondent terminated Chief Technician Juanho Coro-
nado, a statutory supervisor.
While it is undisputed that most of the technicians
under the Union's auspices struck at least in part to pro-
test Juanho's discharge, the credited testimony discloses
that the technicians struck additionally because they
wanted to be treated as paraprofessionals and objected to
8 I similarly find Dr. Rubin's testimony incredible that he too was un-
aware of the Union's organizational efforts during the above timeframe
and it is hereby rejected.
9 While the testimony of Selin Soliman was somewhat disjointed I at-
tribute this to difficulties with the English language noting that he ob-
tained his education in Egypt and that the United States is not his native
country lIn any event I find that overall his testimony is understandable
and worthy of belief
BIDE-A-WEE HOME ASSOCIATION
858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
training Farmingdale students, rotating work stations,
working Sundays and holidays, and other changes in
working conditions. The proximate cause of the strike,
however, was the discharge of Juanho, which reactivat-
ed the technicians' principal concern over lob security.
Thus, Marilyn Braunstein noted that Carlson had assured
the technicians I week earlier that none of them would
be fired and "a few days later [Juanho's discharge] just
proved that none of that was true . . . [a]nd we just all
feared for our jobs. That that would happen to us." Fur-
ther, James Surica also referred to Carlson's speech vis-a-
vis job security and asserted that "if Juan[ho]-if one of
the administration was fired, who was to say that we
couldn't be fired. That showed us that we had no job se-
curity." Other technicians testified similarly that the dis-
charge of Juanho, so soon after Carlson's assurances tht
no one would be fired, rekindled their own fears over
job security and precipitated the strike.
Counsel for Respondent in his brief contends that, as
"the dominating factor for the strike" was to protest
Coronado's discharge, the strikers are unprotected even
if it is determined that the "strike was partially caused by
reason of the terminated employees' grievances." Re-
spondent misconceives the law by relying principally on
Coronado's status as a statutory supervisor in maintaining
that the strikers are not protected. Employees engaged in
a strike to protest a supervisor's discharge does not, ipso
facto, disqualify them from protection under the Act but
rather depends on the facts in each case. o lIn this regard
the Board recently noted that "[it] has consistently held
that where facts establish that the identity and capability
of the supervisor involved have a direct impact on the
employees' own job interest they are legitimately con-
cerned with his identity and thereby have a protected
right to protest his termination."
Applying the foregoing standard to the instant case, it
is noted that Coronado as chief technician supervised
other technicians and worked in close proximity to them.
Further, the record discloses, as testified to by Dr.
Goris, that Coronado became "upset" and "boisterous"
in voicing objections to higher management officials
about changes in the technicians' working conditions.
The record reveals that Coronado further aligned himself
with the technicians by promoting their efforts to union-
ize and encouraged them to sign union cards. In these
circumstances, noting particularly that Respondent dis-
charged Coronado about a week after it assured the
technicians that no one would be fired, I find that the
strikers had a legitimate concern that Coronado's dis-
charge might impact directly on their own job security
or terms and conditions of employment. Thus, the strike
was protected notwithstanding the fact that it was preci-
pitated by the discharge of a statutory supervisor. Ac-
cordingly, I find that Respondent by discharging the em-
'o See Puerto Rico Food Products Corp.. Tradewinds Foods. Inc. and
Island Can Corp., 242 NLRB No. 126 (1979); F C. F Papers. Inc.. A Divi-
sion of the Mead Corporation, 211 NLRB 657, 658, 665 (1974); Kelso
Marine, Inc.., Kel Stress Division, 199 NLRB 7, 12-13 (1972); Dobbs
Houses, Inc., 135 NLRB 885, 888 (1962).
' Puerto Rico Food Products Corp.. supra.
ployees for engaging in a strike for their mutual aid or
protection violated Section 8(a)(l) of the Act.'2
I further find as alleged that Respondent discharged
the strikers in violation of Section 8(a)(3) of the Act.
Thus, the record discloses that the strike was called by
the Union and that the Union provided the picket signs
and otherwise participated actively in the strike. More-
over it is noted that Respondent acknowleged the
Union's prominent role in the strike in a letter to its cli-
ents dated May 22 wherein Respondent provided its ver-
sion of the "labor dispute." (Resp. Exh. 5.) Respondent
stated therein in relevant part:
On May 9, 1978 the union called out certain Bide-
A-Wee clinic employees on strike and since that
date has maintained picket lines ....
Legal Counsel has advised Bide-A-Wee that this
constitutes an illegal strike.
In these circumstances, noting particularly that Re-
spondent discharged the strikers for engaging in what it
characterized as a union-called illegal strike, I find that
such conduct tends to discourage participation in a labor
organization and that Respondent thereby additionally
violated Section 8(a)(3) of the Act. 13
Respondent through its counsel argued that the strik-
ing employees are not entitled to reinstatement because
they did not offer "unconditionally" to report to work
and in any event they were replaced before they made
any offer. Moreover, Respondent contends that the strik-
ing employees forfeited protection under the Act by
picket-line misconduct. I find that these positions are not
supported by the record or in law.
The record disclosed that Respondent by letter dated
May 18 terminated each of the striking employees but
did not hire replacements until later dates. By doing so
Respondent discharged these employees unlawfully and
it is immaterial that they were replaced before they made
an offer to return.' 4 In any event the record clearly es-
tablishes that the strikers offered to return to work on
June 12 "unconditionally" although the precise term
might not have been used.
First, it is noted that the Union by letter dated June 8
notified Respondent that the strikers would be back to
work Monday, June 12. This proved to be a futile ges-
ture as Respondent immediately countered by letter
dated June 9 advising "that these terminated employees
will not be permitted to return to work and that the ter-
minations of employment by Bide-A-Wee stand." Not-
withstanding the aforenoted letter, all the striking em-
ployees appeared at the Wantagh facility Monday morn-
ing, June 12, as promised earlier by the Union, and with
Jane Coronado as their spokesperson announced to Re-
spondent that they were ready and available to work.
The strikers did not list any conditions precedent nor
were they asked by Respondent to clarify their offer to
return to work. As noted previously Executive Director
12 Ibid.; at 9; see also F C. F. Papers, Inc., supra at 665.
'' See Facifinders Detective Bureau, Inc., 133 NLRB 1332, 1343 (1961);
see also Okla-lnn, Holiday Inn of Henryetta, 198 NLRB 410 (1972); F. C
F Papers, Inc.. supra; Kelso Marine, Inc., supra at 13-14.
4' See N.L.R.B. v. International Van Lines, 409 US. 48, 52-53 (1972).
- - -
BIDE-A-WEE HOME ASSOCIATION 859
Carlson notified a local policeman that these individuals
were "terminated personnel" and had this policeman
escort them off the premises. In these circumstances, I
am satisfied that the requirements of an unconditional ap-
plication for reinstatement have been met. 15
With regard to Respondent's alternative argument that
picket-line misconduct precludes relief under the Act, I
find that the record is devoid of probative evidence in
support thereof. One nonstriking employee testified that
she was told by Union Business Agent McKay and other
striking employees that if the Union got in and she elect-
ed not to join she would lose her job. In the context of a
union-security clause in a collective-bargaining agree-
ment, the aforenoted statement ascribed to the Union and
strikers appears to be technically correct. In any event,
without more, I do not find that the statement is coer-
cive.
While some nonstriking employees were called "scabs"
and unspecified obscenities, I find more persuasive that
there is no probative evidence tending to show that the
strikers were responsible for damage to property or that
they threatened anyone with physical harm or other re-
prisals. In these circumstances it appears that the striking
employees engaged in only minor incidents of miscon-
duct, if at all.' 6
In sum, I find that Respondent discharged the striking
employees on May 18 in violation of Section 8(a)(3) and
(I) of the Act and I shall recommend that they be rein-
stated with backpay in the manner set forth below.
II1. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section II,
above, occurring in connection with its operations de-
scribed in section I, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor dis-
putes burdening and obstructing commerce and the free
flow of commerce.
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of
Section 2(2) of the Act and is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent coercively interrogated employees con-
cerning union activities and their union sympathies there-
by violating Section 8(a)(1) of the Act.
4. Respondent by discharging striking employees Mari-
lyn Braunstein, Jane Coronado, Rosemarie Cucci, Joyce
Dudzinski, Mary Ann Haney, Maureen Reilly, Selin Soli-
man, Susan Story, and James Surica on May 18, 1978,
because said striking employees engaged in a union-
called strike and other concerted activities for collective-
bargaining purposes and mutual aid and protection, and
by refusing to reinstate said employees, said Respondent
1" See, e.g., Coca-Cola Bottling Company of Miami. Inc., 237 NLRB
932 (1978).
16 See Moore Business Forms, Inc.. 224 NLRB 393, 395-396 (1976)
has engaged in unfair labor practices within the meaning
of Section 8(a)(3) and () of the ACt.
5. The foresaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
6. Except as specifically found herein, Respondent has
not otherwise violated the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices I shall recommend that Respondent
be ordered to cease and desist therefrom and that it take
certain affirmative action found necessary to effectuate
the policies of the Act.
It has been found that Respondent in violation of Sec-
tion 8(a)(3) and (1) of the Act discriminatorily dis-
charged striking employees Marilyn Braunstein, Jane
Coronado, Rosemarie Cucci, Joyce Dudzinski, Mary
Ann Haney, Maureen Reilly, Selin Soliman, Susan Story,
and James Surica on May 18, a date on which it had not
yet hired permanent replacements, and Respondent fur-
ther violated Section 8(a)(3) and (1) of the Act by refus-
ing to reinstate said striking employees upon their uncon-
ditional application to return to work on June 12. It will
therefore be recommended that Respondent offer imme-
diate and full reinstatement to the aforenamed striking
employees, without prejudice to their seniority or other
rights and privileges, dismissing, if necessary to effectu-
ate such reinstatement, any person hired by Respondent
after May 18. In addition, Respondent shall make these
employees whole for any loss of earnings they have suf-
fered or may suffer by reason of the unlawful discrimina-
tion or refusal to reinstate them, by paying them a sum
of money equal to the amount they normally would have
earned from the date of their unlawful discharge 7 until
the date Respondent offers them reinstatement, comput-
ed in the manner set forth by the Board in F W. Wool-
worth Company, 90 NLRB 289 (1950), together with in-
terest thereon as computed in the manner prescribed in
Florida Steel Corporation, 231 NLRB 651 (1977).18 Pay-
roll and other records in possession of Respondent are to
be made available to the Board, or its agents, to assist in
such computation.
While the unfair labor practices herein are serious, the
record does not reflect that Respondent has a proclivity
to violate the Act or has engaged in such egregious or
pervasive misconduct as to warrant a broad remedial
order. Accordingly, I will recommend the narrow in-
junctive language, "in any like or related manner." See
Hickmott Foods, Inc., 242 NLRB No. 177 (1979).
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
17 See .4bilities and Goodwill. Inc., 241 NLRB No 5 (1979); Puerto Rico
Food Products Corp., supra at 9-10.
18 See, generally, Isis Plumbing Healing Co., 138 NLRB 716 (1962)
BIDE-A-WEE HOME ASSOCIATION
860 DECISIONS OF NATIONAL, LABOR RELATIONS BOARD
ORDER' 9
The Respondent, Bide-A-Wee Home Association,
Wantagh, New York, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating; their employees concern-
ing union activities and their union sympathies.
(b) Discharging, refusing to reinstate, or otherwise dis-
criminating against their employees because they have
engaged in a protected strike or other concerted action
for collective-bargaining purposes and mutual aid and
protection.
(c) Discouraging membership in and activities on
behalf of Local 868, an affiliate of the International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, or any other labor organization.
(d) In any like or related manner interfering with, re-
straining, or coercing their employees in the exercise of
their rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer striking employees Marilyn Braunstein, Jane
Coronado, Rosemarie Cucci, Joyce Dudzinski, Mary
Ann Haney, Maureen Reilly, Selin Soliman, Susan Story,
and James Surica immediate and full reinstatement to
their former jobs or, if those jobs no longer exist, to sub-
stantially equivalent jobs, without prejudice to their se-
niority or other rights and privileges previously enjoyed,
discharging, if necessary, any replacements hired after
the date of their unlawful discharges, and make them
whole for any loss of earnings they may have suffered
by virtue of the unlawful 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 in the manner set forth in The
Remedy section herein.
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other re-
cords necessary to analyze the amount of backpay due
under the terms of this Order.
(c) Post at its Wantagh, New York, facility copies of
the attached notice marked "Appendix." 20 Copies of said
'B 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 bjections thereto
shall be deemed waived for all purposes.
20 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
notice, on forms provided by the Regional Director for
Region 29, after being duly signed by Respondent's rep-
resentative, shall be posted by it immediately upon re-
ceipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or cov-
ered by any other material.
(d) Notify the Regional Director for Region 29, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge, refuse to reinstate, or
otherwise discriminate against our employees be-
cause they have engaged in a protected strike or
other concerted action for collective-bargaining
purposes and mutual aid and protection.
WE WILL NOT discriminate against our employees
in order to discourage membership in, and activities
on behalf of, Local 868, an affiliate of the Interna-
tional Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, or any other
labor organization.
WE Wll.l NOT interrogate our employees con-
cerning union activities or their union sympathies.
WE WILL NOT in any like or related manner in-
terfere with, restrain, or coerce our employees in
the exercise 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 their
former jobs or, if those jobs no longer exist, to sub-
stantially equivalent jobs, without prejudice to their
seniority or other rights and privileges previously
enjoyed, and WE WILL make them whole for any
loss of earnings they may have suffered by reason
of the unlawful discrimination against them with in-
terest measured from May 18, 1978:
Marilyn Braunstein
Jane Coronado
Rosemarie Cucci
Joyce Dudzinski
Mary Ann Haney
Maureen Reilly
Selin Soliman
Susan Story
James Surica
BIDE-A-WEE HOME ASSOCIATION