Bristol Convalescent Home, Inc

National Labor Relations Board - Board Decisions

Apr 11, 1989

293 N.L.R.B. 625 (N.L.R.B. 1989)

BRISTOL CONVALESCENT HOME 625
Bristol Convalescent Home , Inc and Connecticut
State Federation of Teachers/Federation of
Nurses and Health Professionals, AFT/AFL-
CIO
Bristol Convalescent Home , Inc and Bristol Conva-
lescent Home Grievance Committee Cases 39-
CA-1315, 39-CA-1471, 39-CA-1324,39-CA-
1419, 39-CA-1420, and 39-CA-1469
April 11, 1989
DECISION AND ORDER
BY MEMBERS JOHANSEN , CRACRAFr, AND
HIGGINS
On September 30, 1983, Administrative Law
Judge Harold B Lawrence issued the attached de
cision The Respondent filed exceptions and a sup-
porting 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 the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings, and
conclusions,1 as modified below, and to adopt the
recommended Order as modified and set forth in
full below
1 A principal issue presented in this case is
whether the Respondent violated Section 8(a)(3)
and (1) of the Act by refusing to reinstate service
and maintenance unit employees who engaged in a
sympathy stake from June 14 until August 8, 1982,
when they unconditionally offered to return to
work The Respondent's primary defense is that the
sympathy strikers were engaged in unprotected ac-
tivity because they had violated the no-strike
clause in the collective-bargaining agreement be-
tween the Respondent and the Bristol Convales-
cent Home Grievance Committee (the Committee)
The judge found that the sympathy strikers were
not acting in breach of their contract, and that the
Respondent therefore violated the Act as alleged
We agree, but our analysis of this issue is based on
the standards set forth in Indianapolis Power Co,
273 NLRB 1715 (1985) (Indianapolis Power 1), re
manded sub nom Electrical Workers IBEW Local
1395 v NLRB, 797 F 2d 1027 (D C Cir 1986), de-
cision on remand 291 NLRB 1039 (1988) (Indianap-
olis Power II), which issued subsequent to the
judge's decision 2
In Indianapolis Power II, the Board reaffirmed
the rule of Indianapolis Power I, but abjured appli-
cation of that rule to create an irrebuttable pre-
sumption that a broad no-strike clause bars sympa-
thy strikes In sum, the Board stated
[W]e continue to believe that a broad no-stake
clause should properly be read to encompass
sympathy strikes unless the contract as a
whole or extrinsic evidence demonstrates that
the parties intended otherwise In deciding the
issue of whether sympathy strikes fall within a
no-strike provision's scope, the parties' actual
intent is to be given controlling weight and ex-
trinsic evidence should be considered as an in-
tegral part of the analysis 3
The contract at issue here was in effect from
January 1, 1980, to December 31, 1982, with a con-
ditional provision for automatic annual renewal
thereafter Article 15 of this contract states
It is mutually agreed by the parties to this
Agreement that there shall be no strike, slow-
down, walkout or stoppage of work by the
Committee, nor shall there be any lockout by
the Employer during the life of this Agree-
ment, and that any difference or misunder-
standing that may arise between the contract
ing parties shall be amicably adjusted by and
between the parties themselves, and if the par
ties themselves cannot amicably adjust the dif
ference, then the matter shall be referred to ar-
bitration, as provided for in this Agreement 4
We find that the foregoing language, read as a
whole, is not sufficient to bar sympathy strikes Al-
though this language is in a contractual article sep-
arate from those containing grievance and arbitra-
tion provisions and it expressly bars a broad range
of job actions, the specific reference to arbitrability
indicates that the no-strike provision is functionally
related to arbitration and intended to be in effect
only when disputes could be resolved by the arbi-
tration process Indeed, the no-strike clause and the
provision for referring differences or misunder-
standings to the arbitration procedure are not only
in the same contract article but are part of a single
sentence This apparent relationship between the
express no strike provision and arbitration warrants
i In accord with our analysis in Texaco Inc 285 NLRB 241 (1987)
we agree with the judge s conclusion that the Respondent violated Sec
8(a)(3) and ( 1) by refusing to pay undisputedly accrued vacation pay to
striking nurses and to service and maintenance employees who honored
the nurses picket line We find it unnecessary to pass on whether the Re
spondent also violated Sec 8(a)(5) by failing to pay the accrued vacation
pay inasmuch as the make whole remedy for such a violation would not
differ from the remedy for the violation found
2 In agreeing with his colleagues that the sympathy strikers did not act
in breach of the parties contract Member Johansen has applied the anal
ysis set forth in his concurring opinion in Indianapolis Power Co (Indian
apolis Power 11) supra
3 291 NLRB 1039 1040
4 Arts 24 and 25 contain the parties grievance and arbitration prove
sions
293 NLRB No 73
626 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the inference that the parties intended a narrower
limitation on strikes than in cases involving an ex-
press no-strike provision that is functionally inde
pendent from the arbitration process 5 As the sym-
pathy strikers here refused to cross a picket line es-
tablished by the Respondent's unrepresented nurses
in support of their organizational strike, the under
lying dispute was clearly not a difference or a mis-
understanding ansing under the contract, and was
not arbitrable Accordingly, the wording of the
contract, standing alone, does not bar the service
and maintenance employees' action
Furthermore, extrinsic evidence does not demon-
strate any broader intent with respect to the con-
tractual ban on strikes Extrinsic evidence about
the parties' discussion and understanding when ne-
gotiating the no-strike clause would be of great sig-
nificance, but there is no such evidence in the
record There is also no evidence concerning past
practice or arbitral interpretation To the extent
that it is relevant, testimony about the parties' un-
derstanding of the clause at the time of the 1982
strike or the 1983 unfair labor practice hearing is
varied and ambiguous The Respondent's adminis-
trator, Archer, testified that she reminded service
and maintenance employees before the strike that
they did have a working contract-working agree
ment-that called for no work slowdown or strike
or anything that would affect their performance
inside the home And they were expected to show
up on duty Monday the 14th " She further stated
that "those that did not come in were replaced "
The Committee's vice president, Hutchins, testified
that the Respondent's officials warned that "we
had a contractual agreement that we would not go
on strike, that we could lose our jobs if we didn't
you know, play by the rules The Committee's
chairman, Pearson, explained that he waited across
the street from the nurses' picket line because it
stipulates in our contract that if we-well, it would
be a contract violation if we went anywhere near
the strike or, you know, near the sidewalk when
nurses were picketing "
In light of the contract language, none of the
foregoing testimony clearly evinces the parties'
actual intent to waive the right of service and
maintenance employees to participate in sympathy
strikes The testimony by Archer and Hutchins am-
biguously implies either the potential for job loss,
permissible if the right to strike were waived, or
the more limited consequence of replacement, per
5 E g United States Steel Corp v NLRB 711 F 2d 772 (7th Cir 1983)
The court there stated Of course in cases where an arbitration clause
and an express no strike clause are closely interwoven it may be reasona
ble to infer that the parties intended the two provisions to have the same
scope 712 F 2d at 777 Compare Indianapolis Power II supra 1040 fn
I1 (no strike clause fully independent of arbitration clause)
missible even if the sympathy strike were protect-
ed Pearson s testimony is even more unclear, sug-
gesting the view that the contract proscribed phys-
ical proximity to the nurses' picket line or strike
action In sum, viewing the inconclusive extrinsic
evidence in light of the contract language expressly
relating the strike waiver to arbitrability, we find
that the Committee had not waived the right of
unit employees to engage in a sympathy strike
2 In the judge's conclusions of law and recom-
mended Order, as well as at various other points in
the judge's decision, he indicated that the Respond
ent had violated Section 8(a)(3) and (1) not only by
refusing to reinstate 20 sympathy strikers who
signed an unconditional offer to return to work on
August 8, 1982, but also by discharging these indi-
viduals Although Administrator Archer's testimo-
ny and the parties' arguments on brief are incon
sistent in sometimes characterizing the Respond-
ent's actions as replacing and refusing to reinstate
and sometimes characterizing them as termination 6
the relevant complaint allegations and the prepon-
derance of the testimony indicate that the Respond-
ent did not discharge the strikers but did view
them as replaced Accordingly, we shall modify
the judge's conclusions of law and recommended
Order by deleting references to the unlawful dis-
charge of the strikers
Consistent with the foregoing modification, the
Respondent excepts to the judge's remedial recom-
mendations requiring it to offer the 20 discrimina
tees immediate reinstatement and backpay dating
from their August 8, 1982 offer to return to work
In accord with precedent governing the rights of
these strikers,7 the Respondent's argument that it
should be required only to honor a hiring prefer-
ence for the strikers would be meritorious if it had
proved that all 20 discriminatees had been perma-
nently replaced prior to their offer to return to
work and remained replaced thereafter
6 For instance in addition to the testimony referred to in sec 1 above
Archer testified as follows in response to leading cross examination by
counsel for the General Counsel
Q You testified that all of these members of the Grievance Com
mittee who didn t come in on the first two days of the strike were
replaced-
A Um hum-
Q -under the contract
A Yes sir
Q I mean they were terminated
A They were replaced on the job yes
Q The contract gave you a right to terminate them
A They voluntarily quit their job as far as we were concerned
Q So you terminated them
A Its a matter of semantics I would assume so yes [Tr 191-
192 ]
7 La,dlaw Corp 171 NLRB 1366 (1968) enfd 414 F 2d 99 (7th Cir
1969) cert denied 397 U S 920 (1970)
BRISTOL CONVALESCENT HOME
According to the record, however, only nine of
these individuals had undisputedly been replaced as
of August 8, 1982 8 Further, Archer admitted and
uncontroverted documentary evidence substantiates
that from August 17, 1982, until no later than Janu-
ary 17, 1983, the Respondent hired 21 new employ-
ees as nurses aides, the job classification for posi-
tions held by the replaced employees For reasons
set forth in the judge's decision, we agree that the
alleged legitimate reasons for refusing to consider
the former sympathy strikers for reinstatement
were pretextual Accordingly, we affirm the
judge's conclusion that the Respondent unlawfully
refused to reinstate 20 sympathy strikers9 who of
fered to return to work, and we adopt his recom-
mendation that the Respondent must offer each dis-
criminatee immediate reinstatement We shall leave
to compliance proceedings, however, for purposes
of computing the initial date of the backpay period,
the determination of when the Respondent should
have reinstated those nine discriminatees who had
been replaced by August 8, 1982 10
AMENDED CONCLUSIONS OF LAW
I Substitute the following for Conclusion of
Law 5(a)
"(a) Refusing to reinstate the following named
employees because they refused to cross a picket
line established by CSFT on June 14, 1982 Stuart
Hutchins, Robert Piring, Abraham Pearson, Donna
Parenti, Helen Swanson, Virginia Briggs, Dorothy
Coppola, Brenda Eastman, Carrol Edwards, Susan
Gennett, Nelly Goff, Heidi Kottke, Jean Perkins,
Ann Marie Skorupski, Maureen Soucy, Susan Thi
bodeau, Anna Marie Ross, Lisa Belanger, Geneva
Earls, and Janice Palance "
8 G C Exh 6 a document provided by the Respondent and authenti
cated by Archer lists the following as having been replaced Donna Par
enti Helen Swanson Virginia Briggs Dorothy Coppola Susan Gennett
Heidi Kottke Jean Perkins Ann Mane Skorupski and Susan Thibodeau
Although that document also lists discnminatee Abraham Pearson as
having been replaced by Karen Fellows on June 15 1982 Archer testi
fled that Fellows became recreation director in July (replacing Marilyn
VanBeveren whom the Respondent unlawfully discharged a month
later) Consequently the evidence indicates that Pearson s position was
vacant on August 8
8 Although the complaint alleged the names of an additional five indi
viduals as sympathy striker discnminatees there are no exceptions to the
judge s exclusion of these individuals because they did not sign the offer
to return to work and there is no specific evidence identifying any of
them as participants in the sympathy strike There also are no exceptions
to the judge s failure to include as discnminatees the names of two mdi
viduals who signed the offer to return to work but were not alleged as
discnmmatees in the complaint
10 In accordance with our decision in New Horizons for the Retarded
283 NLRB 1173 ( 1987) interest on and after January 1 1987 shall be
computed at the short term Federal rate for the underpayment of taxes
as set out in the 1986 amendment to 26 U S C § 6621 Interest on
amounts accrued prior to January 1 1987 (the effective date of the 1986
amendment to 26 U S C § 6621) shall be computed in accordance with
Florida Steel Corp 231 NLRB 651 (1977)
627
2 Delete the reference to Section 8(a)(5) in Con
clusion of Law 6
ORDER
The National Labor Relations Board orders that
the Respondent, Bristol Convalescent Home, Inc,
Bristol, Connecticut, its officers, agents, successors,
and assigns, shall
1 Cease and desist from
(a) Doing any of the following things in order to
induce employees to reject any labor organization
as their collective-bargaining representative or to
abandon a strike promising increased wages, pen-
sion benefits, job security, and improved working
conditions, threatening employees with closure of
the business, and soliciting employees to support a
company union
(b) Refusing to pay accrued vacation pay to
striking employees or to employees who honor
their picket line
(c) Discharging employees who actively support
their Union
(d) Refusing to reinstate employees, after their
unconditional offer to return to work, because they
refused to cross the picket line set up by other
striking employees
(e) Refusing to bargain collectively with the
Bristol Convalescent Home Grievance Committee
by refusing its request to supply relevant informa-
tion needed by it to perform its duties as collective
bargaining representative of the employees in the
following appropriate unit
All service and maintenance employees, in-
cluding employees in the dietary department,
nursing department, housekeeping department,
maintenance department, laundry department
and administrative aides, recreation directors,
patient care coordinator, administrator's aide,
but excluding registered nurses, licepsed prac
tical nurses, clericals, supervisors and guards,
as defined in the National Labor Relations
Act
(f) Unilaterally and without consent of the Bris-
tol Convalescent Home Grievance Committee fail-
ing and refusing to remit dues deducted from em-
ployees' paychecks pursuant to the provisions of
the collective-bargaining agreement between the
Respondent and the Committee
(g) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act
2 Take the following affirmative action neces-
sary to effectuate the policies of the Act
628 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(a) Offer Marilyn VanBeveren, Stuart Hutchins,
Robert Piring, Abraham Pearson, Donna Parenti,
Helen Swanson, Virginia Briggs, Dorothy Cop-
pola, Brenda Eastman, Carrol Edwards, Susan
Gennett, Nelly Goff, Heidi Kottke, Jean Perkins,
Ann Marie Skorupski, Maureen Soucy, Susan Thi-
bodeau, Anna Marie Ross, Lisa Belanger, Geneva
Earls, and Janice Palance immediate and full rein
statement 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 ben-
efits suffered as a result of the discrimination
against them in the manner set forth in the attached
judge's decision, as modified in this decision
(b) Remove from its files any references to the
unlawful discharge of Marilyn VanBeveren and to
the unlawful refusal to reinstate any of the other
employees named in paragraph 2(a) of this Order,
and notify them in writing that this has been done
and that evidence of these unlawful actions will not
be used against them in any way
(c) Pay all accrued and unlawfully withheld va
cation pay owing to the following employees with
interest computed in the manner set forth in this
decision
Barbara Belanger
Claudia Connelly
Sandra Festa
Carol Malteius
Robert Piring
Helen Swanson
Brenda Eastman
Nelly Goff
Maureen Soucy
Anna Mane Ross
Janice Palance
Marilyn Poirer
Joanne Houle
Linda Dorman
Eva Sheets
Abraham Pearson
Tanya Sakowski
Mabel Hallstein
Clara Posa
Stuart Hutchins
Donna Parenti
Dorothy Coppola
Carrol Edwards
Heidi Kottke
Ann Marie Skorupski
Lisa Belanger
Virginia Briggs
Susan Gennett
Jean Perkins
Susan Thibodeau
Geneva Earls
(d) Furnish, in timely and updated fashion, to the
Bristol Convalescent Home Grievance Committee,
the following information that it has requested and
that is relevant to its duties as collective-bargaining
representative the names, dates of hire, titles, or
names of positions and rates of pay for all individ-
uals hired into the above-described bargaining unit
since June 1, 1982, as well as the amount of dues
deducted for each bargaining unit employee since
that date
(e) Remit to the Bristol Convalescent Home
Grievance Committee all union dues deducted
from the paychecks of employees in the above-de
scribed bargaining unit since the date of the last
such remittance with interest computed in the
manner set forth in this decision
(f) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order
(g) Post at its facility in Bristol , Connecticut,
copies of the attached notice marked "Appen
dix "i i Copies of the notice, on forms provided by
the Regional Director for Region 34, after being
signed by the Respondent's authorized representa
tive, shall be posted by the Respondent immediate
ly upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to 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 material
(e) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply
" If this Order is enforced by a judgment of a United States court of
appeals the words in the notice reading Posted by Order of the Nation
al Labor Relations Board shall read Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board
APPENDIX
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 ordered us to post and abide by this notice
WE WILL NOT do any of the following things in
order to induce employees to reject any labor orga-
nization as their collective-bargaining representa-
tive or to abandon a strike promising increased
wages, pension benefits, job security, and improved
working conditions, threatening employees with
closure of the business, and soliciting employees to
support a company union
WE WILL NOT refuse to pay accrued vacation
pay to striking employees or to employees who
honor their picket line
WE WILL NOT discharge employees who actively
support their Union
BRISTOL CONVALESCENT HOME
WE WILL NOT refuse to reinstate employees,
after their unconditional offer to return to work,
because they refused to cross the picket line of
other striking employees
WE WILL NOT refuse to bargain collectively with
the Bristol Convalescent Home Grievance Com-
mittee by refusing its request to supply relevant in-
formation needed by it to perform its duties as col
lective-bargaining representative of the employees
in the following appropriate unit
All service and maintenance employees, in-
cluding employees in the dietary department,
nursing department, housekeeping department,
maintenance department, laundry department
and administrative aides, recreation directors,
patient care coordinator, administrator's aide,
but excluding registered nurses, licensed prac-
tical nurses, clericals, supervisors and guards,
as defined in the National Labor Relations
Act
WE WILL NOT unilaterally and without the con-
sent of the Bristol Convalescent Home Grievance
Committee fail and refuse to remit dues deducted
from employees' paychecks pursuant to the provi-
sions of the collective bargaining agreement be-
tween the Respondent and the Committee
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer
cise of the rights guaranteed you by Section 7 of
the Act
WE WILL offer to Marilyn VanBeveren, Stuart
Hutchins, Robert Piring, Abraham Pearson, Donna
Parenti, Helen Swanson, Virginia Briggs, Dorothy
Coppola, Brenda Eastman, Carrol Edwards, Susan
Gennett, Nelly Goff, Heidi Kottke, Jean Perkins,
Ann Marie Skorupski, Maureen Soucy, Susan Thi-
bodeau, Anna Mane Ross, Lisa Belanger, Geneva
Earls, and Janice Palance immediate and full rein-
statement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other
rights and privileges previously enjoyed and WE
WILL make them whole for any loss of earnings
and other benefits resulting from discrimination
against them, less any net interim earnings, plus in-
terest
WE WILL remove from our files any references
to the unlawful discharge of Marilyn VanBeveren
and to the unlawful refusal to reinstate any of the
employees listed above and we will notify all of
these employees in writing that this has been done
and that these unlawful actions will not be used
against them in any way
WE WILL pay all accrued and unlawfully with-
held vacation pay with interest owing to
Barbara Belanger
Claudia Connelly
Sandra Festa
Carol Malteius
Robert Piring
Helen Swanson
Brenda Eastman
Nelly Goff
Maureen Soucy
Anna Marie Ross
Janice Palance
Marilyn Poirer
Joanne Houle
Linda Dorman
Eva Sheets
Abraham Pearson
Tanya Sakowski
Mabel Hallstein
Clara Posa
Stuart Hutchins
Donna Parenti
Dorothy Coppola
Carrol Edwards
Heidi Kottke
Ann Mane Skorupski
Lisa Belanger
Virginia Briggs
Susan Gennett
Jean Perkins
Susan Thibodeau
Geneva Earls
629
WE WILL furnish, in timely and updated fashion,
to the Bristol Convalescent Home Grievance Com-
mittee, the following information that it has re
quested and that is relevant to its duties as collec-
tive-bargaining representative the names, dates of
hire, titles, or names of positions and rates of pay
for all individuals hired into the above-described
bargaining unit since June 1, 1982, as well as the
amount of dues deducted for each bargaining unit
employee since that date
WE WILL remit to the Bristol Convalescent
Home Grievance Committee all union dues deduct-
ed from the paychecks of employees in the above-
described bargaining unit since the date of the last
such remittance with interest
BRISTOL CONVALESCENT HOME, INC
Otto P Witt Esq, for the General Counsel
Auerbach Labes & Woicik of New York New York for
the Respondent
HAROLD B LAWRENCE Administrative Law Judge
This case was tried before me on April 4 and 5, 1983 at
Hartford Connecticut The consolidated complaints are
based on charges filed against the Respondent, Bristol
Convalescent Home Inc, by the Connecticut State Fed
eration of Teachers/Federation of Nurses and Health
Professionals, AFT/AFL-CIO (CSFT) on September 9
and December 21, 1982, and by the Bristol Convalescent
Home Grievance Committee (the Grievance Committee)
between September 16 and December 21, 1982
CSFT charges the Respondent with having violated
Section 8(a)(1) of the National Labor Relations Act (the
Act) by promising its members increased wages and ben
efits and threatening them with shutdown of the facility
in order to induce them to abandon a strike and their
Union, and with soliciting their support for a company
union, and with violation of Section 8(a)(1) and (3) of the
Act by refusing to pay its members who went on strike
their accrued vacation pay
630 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The Grievance Committee charges the Respondent
with having violated Section 8(a)(1) and (3) by refusing
to reinstate and pay accrued vacation pay to those unli
censed employees who refused to cross the CSFT picket
line with having violated Section 8(a)(3) and (1) by
firing an official of the Grievance Committee, and with
violations of Section 8(a)(5) and (1) by unilaterally ceas
ing the remittance of Grievance Committee dues deduct
ed from paychecks and by refusing to furnish informa
tion requested by the Grievance Committee
The Respondent denied all allegations of wrongdoing
and statutory violation and raised affirmative matter by
way of defense in various of its answers (except in Case
39-CA-1315), as follows that Respondent is in reorgani
zation under Chapter 11 of the Bankruptcy Act, that it
doubts in good faith that the Grievance Committee rep
resents a majority of the bargaining unit consisting of the
unlicensed service and maintenance employees, that the
information requested in the Grievance Committees re
quest for information, dated November 4, 1982, was not
timely, and the contract between Respondent and Union
was extended for a year, pursuant to contractual provi
sions, that the employees who failed to cross the CSFT
picket line did so because of their fear of harassment and
violence, that the employees who failed to cross the
picket line have been lawfully replaced, that the employ
ees who failed to cross the picket line did so in violation
of the collective bargaining agreement governing their
employment that the offer to return to work made by
the employees who honored the picket line was not un
conditional that an intervening state law disqualified
them from returning to the jobs that they had aban
doned
The parties were afforded full opportunity to be heard
to call examine and cross examine witnesses and to in
troduce any relevant evidence Posthearing briefs have
been filed by the General Counsel and the Respondent
On the entire record and based upon my observation
of the witnesses and consideration of the briefs submit
ted I make the following
FINDINGS OF FACT
I JURISDICTION
There is no issue as to jurisdiction The complaints
allege and the Respondent admits, and I find that the
Respondent is a Connecticut corporation that operates a
health care institution consisting of a nursing home in
Bristol, Connecticut, providing inpatient medical and
professional care services During the calendar year
ending December 31, 1982, it derived gross revenues in
excess of $100,000 and received, at Bristol products,
goods, and materials valued in excess of $5000 directly
from points outside the State of Connecticut and at all
pertinent times has been engaged in commerce within
the meaning of Section 2(2) (6) and (7) of the Act
It is alleged, admitted and I find that CSFT and the
Grievance Committee at all material times have been and
are labor organizations within the meaning of Section
2(5) of the Act
II THE ALLEGED UNFAIR LABOR PRACTICES
A General Statement of the Facts'
The Respondent operates a nursing home in Bristol,
Connecticut Harry Ostreicher is one of the principals of
the owning corporation which is the Respondent in
these proceedings Elizabeth Archer is the Respondent s
administrator Beverly Perugmi is the director of nurs
mg The Grievance Committee is the collective bargain
ing representative and has entered into a series of collec
tive bargaining agreements with Respondent the latest of
which was in effect throughout the calendar year 1982
on behalf of a unit defined therein as follows
All service and maintenance employees , including
employees in the dietary department , nursing de
partment , housekeeping department maintenance
department , laundry department and administrative
aides, recreation directors patient care coordinator,
administrators aide , but excluding registered nurses,
licensed practical nurses, clericals, supervisors and
guards, as defined in the National Labor Relations
Act
CSFT began an organizational campaign and on June
14 commenced a strike against the Respondent 2 Twelve
of its members participated in the strike and a picket line
was set up across the entrance to the nursing home
On August 11, Ostnecher left the nursing home by a
side exit and was hailed by some of the nurses on the
picket line as he was getting out of his car He called
back to them and about half a dozen of them crowded
around his car A conversation ensued in which he made
a number of statements the substance of which was as
follows
if the nurses abandoned their union they could
have an in house union and he would be their repre
sentative
he would fire anyone they wanted fired,
he would give them all sorts of raises and bene
fits
he would never recognize the Union
he had set aside their vacation pay and they
could have it back if they came inside
they would get retroactive raises,
if they wanted a pension, they could have a pen
lion,
they should take off the picket signs because he
would never recognize the Union, they would
never get back into the nursing home as long as
they belonged to that or any other union,
if they wished, he would bring back a pharmacist
whom they knew who was no longer employed at
the home and he would fire the Director of Nurs
ing
if they wanted more money they could have it
' The facts of the case are a narrative composite of the undisputed and
credited testimony admissions in the answers and data contained in the
exhibits
2 All references to dates refer to dates in 1982 unless otherwise stated
BRISTOL CONVALESCENT HOME 631
Ostreicher s reference to their getting back vacation
pay was a reference to the fact that accrued vacation
pay had not been paid to certain strikers despite request
On the hearing it was stipulated that under the vacation
policy of the Respondent employees received 2 weeks
vacation after 1 year of employment and 3 weeks after 5
years, that in computing the amount accrued the current
year is excluded, vacation being based on service
through the preceding year, prior to these proceedings, a
charge was filed (Case 39-CA-1279) but settled by an
agreement for payment of vacation pay to six nurses who
were participating in the strike who had put in their va
cation requests prior to the start of the strike
By letter dated December 3, CSFT demanded pay
ment of accrued vacation pay and sick pay for the other
nurses, both the registered nurses and the licensed practi
cal nurses The Respondent made no reply to the re
quest
Two weeks before the strike, Archer summoned the
entire first shift to a meeting at the nursing home It was
attended by all department heads, administrative person
nel, and all nonlicensed personnel Archer informed the
meeting that the nurses were planning to go on strike
and that if they wanted to protect their jobs, they had
better show up for work 3 Police protection for those
crossing the picket line was promised by Archer About
4 days before the strike, she called another meeting and
told them that protection would be provided by a pn
vate security agency employed by the Respondent, em
ployees would be provided with name tags and a van
would pick them up at locations to be disclosed later
Those walking should on approaching the crossing to
the nursing home, await a signal before starting across
On the Friday evening before the strike, a majority of
the members of the Grievance Committee, i e, the unli
censed personnel, met at the Bristol Regional High
School for the purpose of determining the course to be
taken by the Grievance Committee during the strike Be
tween 95 and 120 persons attended Abraham Pearson,
the chairman of the Grievance Committee, described the
discussion as follows
Q And, was there any decision made at that
meeting as far as the strike?
A No well we left it up to each individual If
they wanted to go in-a lot of people asked ques
tions where was the van going to be and, you
know a few people said that they were going in be
cause they had mortgages to pay and, you know, it
was just an open discussion on what could happen,
you know
Q Was there any vote taken by the grievances
committee?
A Well we had asked how many people were
going to cross the picket line and the majority of
the people raised their hands and very few didn t
raise their hands And, you know we didn t take
any tally of any votes
3 According to Hutchins the group was told that we had a contrac
tual agreement that we would not go on strike that we could lose our
jobs if we didn t you know play by the rules
The testimony of Stuart Hutchins , another officer of
the Grievance Committee , was to the same effect, de
scribing the actions of the meeting as a vote not to strike
and a vote not to honor the picket line
On the first day of the strike , however , although an es
timated 80 percent of the membership of the Grievance
Committee entered the nursing home , mostly in the van
provided by the Respondent or by driving their own
cars through the picket line, a group of approximately 25
who showed up at the normal time , dressed for work,
nevertheless remained across the street with the picket
ing nurses The reasons for this will be examined in some
detail below Pearson attempted to arrange a meeting
with Archer and made one telephone call to her on each
of the first 2 days of the strike She told him she was ex
tremely busy and no meeting was set up On the third
day a group of officers of the Grievance Committee-
Pearson , Hutchins , and Robert C Piring-crossed the
picket line and attempted to enter the nursing home At
the door , they were waived off by Archer, turned
around and went back across the street Thereafter, the
group of unlicensed employees who had not entered the
home on the first day of the strike remained away from
work , and Archer filled 12 of their jobs with new ap
pointees Union dues were apparently deducted from
their wages and deductions from the wages of other unli
censed employees pursuant to the dues checkoff system
provided for in the collective bargaining agreement were
continued However , though Respondent continued de
ducting union dues from employees paychecks, it
stopped forwarding the money to the Grievance Com
mittee By letter dated August 9 , admittedly received by
Respondent on August 12, turnover of the funds was re
quested
Dear Ms Archer,
We The Bristol Convalescent Home Grievance
Committee, would like you to submit the names,
date of hire titles and/or names of positions and
rate of pay of all individuals hired in our Bargaining
Unit since 6/1/82 and thereafter
For the sole purpose of making sure these people
are paying union dues We would appreciate it if
you would remit our union checks, effective as of
6/14/82 to present Please send immediately to this
address
c/o Abraham Pearson
13 Dwight St
Bristol Ct 06010
Respectfully Yours
/s/ Abraham Pearson
Thank You
The Respondent did not answer this letter and provid
ed none of the information requested No remittance was
made
The Respondent also failed to respond to demands for
payment of accrued vacation pay served by the Griev
ance Committee on November 4 on behalf of unlicensed
employees who had honored the picket line and by
CSFT on December 3, on behalf of certain striking
632 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
nurses 4 In settlement of a charge filed with the National
Labor Relations Board, the Respondent had paid the ac
crued vacation pay of those nurses who put in for it
before June 14, but has refused to make payment in the
case of those nurses who had not done so by the time
the strike started
On August 12 the Grievance Committee sent Archer
a letter signed by 22 members of the Grievance Commit
tee asserting that they were not on strike and were will
ing to return to work, unconditionally 5 No response was
made by Respondent to this demand for reinstatement
The final matter in contention is the discharge of Man
lyn VanBeveren for theft of company property VanBe
veren returned from sick leave in July to find that her
post as recreation director was no longer available
During her absence, Pearson had worked out an arrange
ment with Beverly Perugini under which VanBeveren
would come back in as a nurses aide trainee At the time
of VanBeveren s return, her regular position was not
being filled, and two applicants were waiting for it to
open up VanBeveren decided she did not wish to train
as a nurses aide and, at her own request, she was laid off
so that she could collect unemployment insurance pay
ments She subsequently changed her mind and began a
course as a nurses aide trainee on August 9 This in
volved attending a class for 4 hours each day On her
second day at Pearson s request she picked up an em
ployee suggestion box from the staff dining room and
placed it in the trunk of her car Perugini saw her doing
it, summoned her on the loudspeaker system, and de
manded that she bring the box back VanBeveren told
her Pearson had said it belonged to the Grievance Corn
mittee Perugini said it was property of the nursing
home VanBeveren went back to her car, got it, and
* Accrued vacation pay was demanded by CSFT for Barbara Belanger
Claudia Connelly Sandra Festa Joanne Houle Linda Dorman Tanya
Sakowski Mabel Hallstein Clara Posa Eva Sheets Clara Malteius and
Marilyn Poirer Amounts claimed to be due to each of these were set
forth in a schedule enclosed with the demand With respect to Sheila
Sugrue no specific amount was demanded but Respondent was request
ed to furnish information as to her hours and the amount owed to her so
that claim could be made for payment of the same Demand for payment
to her was withdrawn by the General Counsel The Grievance Commit
tee made demand on behalf of its members who honored the picket line
5 The letter of August 8 1982 asserts that the officers of the Gnev
ance Committee who attempted to enter the Home to see Archer on June
16 wanted to speak to her were concerned about the pushing and shov
ing and other incidents and were afraid to cross the picket line The
clear meaning of the letter is that that was the proposed subject of the
meeting they wanted to have with Archer The request for permission to
return to work is itself unconditional It states We are not on strike and
are willing to return to work unconditionally The balance of the letter
sets forth no condition regarding their return The signatories to the
letter are described with the words Here is a list of all personal (sic]
wishing to return to work The signatories are Susan Gennett Jean H
Perkins Virginia Briggs Robert C Piring Stuart Hutchins Abraham
Pearson Donna Parenti Helen Swanson Lisa Belanger Dorothy Cop
pola Geneva Earls Brenda Eastman Carol Edwards Nellie Goff Heidi
Kottke Anne Mane Skorupuski Suzanne Thibodeace Maureen Soucy
Anna Mane Ross Sharon Dufour and Janice Palance One signature is
illegible (it looks like Bnere Roy) Several names alleged in the complaint
are not on the letter Caty Vandenheubal Sherri Riley Telschea De
Mens Regina Syr and Carne Kolbioki Signatories to the letter who are
not named in the complaint are Sharon Dufour and the party whose
name appears to be Roy Other than the demand for reinstatement there
is no evidence in the record identifying all the unlicensed employees who
refused to cross the picket line and were denied reinstatement and pay
ment of accrued vacation pay
handed it over to Perugini On August 11, VanBeveren
was summoned to a meeting with Archer and Perugini,
was told that by taking the box she had broken every
rule of the nursing home, and was terminated for theft of
nursing home property
B Promises Threats and Solicitation by Ostreicher
The pickets who testified concerning the conversation
with Harry Ostreicher on August 11 clearly indicated
that they had greeted his rather extravagant promises
with skepticism, derision, and banter They did not be
leeve him and they told him so Though he invited them
to come into the nursing home the next day to talk to
him none of them accepted his invitation Repeated invi
tations were also declined
The Respondent contendss that the nurses' testimony
clearly shows that he was kidding around and suggests
that therefore no liability should attach to his statements
That defense is untenable as a matter of law and as a
matter of fact The nurses may have been kidding
around, but I fail to see any evidence that he was joking
He appears to have persisted in pressing his arguments
on them in the face of their sarcasm The fact that the
nurses did not take him seriously does not mean that he
was not seriously attempting to induce them to abandon
the strike and give up the CSFT by making a combing
tion of threats and promises In fact unlike the situation
regarding the promises, there is nothing in the record re
garding the nurses reaction to the threats Only the
threats themselves are in evidence There is consequently
nothing on which a finding that they were made in jest
can be based (assuming, indeed, that that would be a de
fense)
We know only the nurses' frame of mind In the ab
sence of evidence respecting Ostreicher s state of mind
when he made the threats and promises the contention
of the Respondent that they were not advanced seriously
is unsupported Ostreicher did not testify, leaving the
nurses testimony wholly uncontroverted and requiring
that I draw an inference unfavorable to the Respondent
from his failure to appear and explain the circumstances
The interpretation of the statements made by him must
therefore be literal as any other interpretation would be
speculative
It is of no importance who started the conversation
because in the circumstances of this encounter, that
cannot affect the character of the statements as threats
and promises
My conclusion that Ostreicher s proposals and threats
were made with serious intent is of significance in con
nection with my analysis below of the evidence relating
to Respondents motive in withholding payment of ac
crued vacation pay from strikers and other employees
who honored their picket line In connection with the
matter here under discussion however the law is clear
that Ostreicher s intentions are irrelevant and even if I
had reached a different finding regarding them the lack
6 Respondents postheanng Br 3
BRISTOL CONVALESCENT HOME 633
of serious intent would not be available to the Respond
ent as a defense 7
Accordingly, I find that the statements testified to by
the pickets were made by Ostreicher and violated Sec
tion 8(a)(1) of the Act
C Refusal to Pay Accrued Vacation Pay to Nurses
and Unlicensed Employees Who Honored the Picket
Line
Though the Respondent settled a proceeding brought
before the National Labor Relations Board by some of
the nurses who had put in for their vacations prior to the
commencement of the strike, by agreeing to pay their ac
crued vacation pay, it has steadfastly refused to make
payment of accrued vacation pay to those nurses who
applied for their vacation pay after June 14 and to mem
bers of the Grievance Committee who honored the
nurses picket line on June 14 and thereafter There is no
issue of fact respecting such nonpayment and entitlement
is not an issue in these proceedings Archer expressly tes
tified that the Respondent recognizes its obligation to
pay the accrued vacation pay questions only whether all
of those named in the complaint in Case 39-CA-1471 are
entitled to it It appears that some of the nurses may
have taken their vacations Nevertheless, Archer offered
no information that would have clarified the issue In the
case of Sheila Sugrue, Archer had failed to furnish infor
mation requested by CSFT, which claimed both vacation
benefits and sick pay for her, and similarly failed to clan
fy the matter at the hearing
The issue in this proceeding is whether the Respond
ent's failure to make payment to date constitutes an
unfair labor practice The Respondent contends that it
has not violated the Act because nonpayment was not a
result of discrimination against employees or former em
ployees on account of their engagement in protected ac
tivities but was due entirely to the serious financial
plight of the Respondent Archer testified that in Octo
ber cash flow was adequate enough to enable the Re
spondent to agree to pay the vacation pay owed to the
six nurses who filed charges with the Board Monthly
payments through March 1983 were arranged with them
and according to Archer, it was the Respondent's inten
tion to pay all of such obligations thereafter However,
reduction in the number of beds caused a drastic increase
in Respondents cash flow, making further payments im
possible
This contention fails legally and factually That the
Respondent refused to pay accrued vacation benefits as a
reprisal against the strikers and those who honored the
picket line is abundantly clear from the simple fact that
June 14, the day the strike started, was the demarcation
line between who got their money and who did not,
from the fact that, when pressed in a proceeding brought
before the Board, Respondent found the money to pay it,
and from the fact that Ostreicher explicitly promised the
nurses who were picketing on August 11 that if they
would abandon the strike and the Union he would,
among other things, give them their vacation pay 8
Even if the Respondent's actions had been prompted
by severe financial troubles (and I have no doubt that
the existence of an excuse not to meet this expense was
welcome), its unilateral failure to honor its vacation pay
obligation in accordance with the collective bargaining
agreement constitutes a violation of the Act, being dis
crimination in its simplest form ' and requiring the Em
ployer in such circumstances to come forward with 'evi
dence of legitimate motives' for the failure to pay, spec
ulation on its motives being insufficient 9 Section 8(a)(1),
(3), and (5) of the Act are violated, for what is involved
is unilateral alteration of the wage scale 1 0 In language
which clearly embraces the circumstances of this case,
the Board has set out the rationale as follows
It cannot be gainsaid that an employer's decision
in midterm of a contract to pay its employees for
the remainder of the contracts terms at wage rates
below those provided in the collective bargaining
agreement affects what is perhaps the most impor
tant element of the many in the employment rela
tionship which Congress remitted to the mandatory
process of collective bargaining under the Act Be
cause so substantial a portion of the remaining as
pects of a bargaining contract are dependent upon
the wage rate provision, it seems obvious that a
clear repudiation of the contracts wage provision is
not just a mere breach of the contract, but amounts
as a practical matter, to the striking of a death blow
to the contract as a whole and is thus in reality, a
basic repudiation of the bargaining relationship We
believe the jurisdiction granted as under the Act
clearly encompasses not only the authority but the
obligation to protect the statutory process of collec
tive bargaining against conduct so centrally disrup
tive to one of its principal functions-the establish
ment and maintenance of a viable agreement on
wages
Turning to the merits, Respondent alleges there is
no room in the facts for any finding that its conduct
violated the good faith bargaining standards im
posed upon it by the Act It urges, in this respect,
that its sole motive and intent in reducing wages
was to meet an economic crisis, that its action in
fact had the salutary effect of preserving for em
ployees jobs they would otherwise have lost and
that it advised the Union fully of all the reasons for
7 Motive is irrelevant to a finding of violation of Sec 8 (a)(1) the Act
is violated if the employers statement would reasonably tend to interfere
with the free exercise of employees rights under the Act regardless of
whether the employer meant statements as threats or whether employees
actually felt threatened See Marion Rohr Corp 261 NLRB 971 977 fn 5
(1982) (friendly and humerous threats in presence of other unfair labor
practices cannot be ignored ) Poletti s Restaurant 261 NLRB 313 (1982)
El Rancho Market 235 NLRB 468 (1978) enfd mem 603 F 2d 223 (9th
Cir 1979)
8 The nurses skepticism and the contention of Respondents counsel
that Ostreicher was not serious did not preclude me from finding that he
made the statements attributed to him with the serious intent of inducing
them to abandon the strike and I have found Consequently his promise
respecting the vacation pay is one of the factors that ought to be consid
ered in ascertaining the reason why payment was withheld
9 NLRB v Great Dane Trailers 388 U S 26 32 (1967)
io Nassau County Health Assn 227 NLRB 1680 (1977) Oak Cliff
Golman Baking Co 207 NLRB 1063 (1973)
634 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
its action and of the financial facts supporting it
We have no doubt that Respondents description of
its motive and its object is a truthful one But we
have here a situation where these considerations are
irrelevant The unambiguous language of Section
8(d) of the Act explicitly (1) forbade Respondent's
midterm modification of the contracts wage provi
lions without the Union s consent, and (2) granted
the Union the privilege it exercised to refuse to
grant consent Nowhere in the statutory terms is
any authority granted to us to excuse the commis
sion of the proscribed action because of showing
either that such action was compelled by economic
need or that it may have served what may appear
to us to be a desirable economic objective To
borrow the words of the Supreme Court, what must
here be recognized is that [t]he law is its own
measure of right and wrong, of what it permits, or
forbids, and the judgment of the courts [and of the
Board] cannot be set up against it in the supposed
accommodation of its policy with the good inten
tion of parties and, it may be, of some good re
sults Standard Sanitary Mfg Co v US, 226 U S
2049 From all this, it follows that Respondent s
unilateral modification of the wage provisions of its
contract violated Section 8(a)(5) and (1) of the Act
as alleged 11
In the present case the Respondent has attempted to
modify the contract unilaterally without either notice to
or discussion with the Grievance Committee resulting in
a clear violation of Section 8(a)(1) (3) and (5) of the
Act 12
D Refusal to Remit Dues and Furnish Information
Respondents violation of Section 8(a)(5) of the Act by
reason of its failure to remit dues to the Grievance Com
mittee and by reason of its failure to provide the Griev
ance Committee with certain requested information is
clearly established 13 The evidence is uncontroverted
that the Respondent has continued to collect union dues
from members of the unit of unlicensed employees cov
eyed by its collective bargaining agreement with the
Grievance Committee Its power and authority to do so
derives from the collective bargaining agreement Never
theless it has made no remittance to the Grievance Com
mittee since May 1982
At the hearing, Archer explained the failure to make
remittance by asserting that she did not know to whom
I I Oak Cliff Golman Baking Co 207 NLRB 1063 1064 (1973) enfd
mem 505 F 2d 1302 (5th Cir 1974)
12 A violation of Sec 8(a)(5) is found pursuant to the unopposed
motion of counsel for the General Counsel made at the conclusion of the
hearing to conform the pleadings to the proof Decision was reserved
because of lack of specificity with respect to the conformance The
motion is granted to the extent that the conduct of the Respondent in
failing to make payment of accrued vacation pay to sinkers and employ
ees honoring their picket line regarding which the facts were fully liti
gated at the hearing and were substantially admitted by the Respondent
constitute violation of Sec 8(a)(5) of the Act as well as Sec 8(a)(1) and
(3) and the complaints in Cases 39-CA-1419 39-CA-1420 and 39-CA-
1471 are deemed amended accordingly
13 Merryweather Optical Co 240 NLRB 1213 (1979)
or where to send the money She testified, I am await
ing instructions 14 This is a highly unsatisfactory expla
nation, in view of the lack of any evidence whatsoever
that she attempted to find out, in view of the explicit
provisions of the collective bargaining agreement provid
ing that all dues, assessments, and other moneys withheld
from employees shall be transmitted to the Grievance
Committee by the 15th day of the month following the
month in which the money is collected, and in view of
the very clear and precise instructions contained in the
demand for remittance dated August 8, which is quoted
in full in the statement of the facts of this case
With respect to the charge that the Respondent failed
to furnish the information requested in that same
demand, the Respondent offered no evidence whatsoever
to controvert the evidence that the information had been
requested and that no response had been furnished Re
spondent has addressed the issue only by denying knowl
edge or information sufficient to form a belief as to the
allegations that the information had been requested and
not furnished while alleging affirmatively that the
demand was untimely The information sought is of the
type needed to enforce compliance with the terms of the
collective bargaining agreement The letter to Archer
stated, For the sole purpose of making sure these
people are paying union dues It is therefore presump
tively relevant,15 but the Respondent has made no at
tempt to show that there is in fact no need for the infor
mation or questioned the Grievance Committees right to
have it Respondent's failure to furnish the information
impedes the objective of enforcing the collective bar
gaining agreement 16 The notion expressed that the re
quest for information regarding collection of union dues
was not timely ignores the obligation of the Respondent
to furnish information required to enforce the agreement
though the agreement had been extended for a year and
no negotiations were pending the information was still
presumptively relevant Because of the actions of the Re
spondent in replacing employees hiring new employees,
and failing to remit union dues while continuing to col
lect them an actual need would appear to have been
demonstrated The doubt expressed in one of the Re
spondent s answers whether the Grievance Committee
represents a majority of the bargaining unit was not
14 Counsel for the Respondent has argued that Respondent lacks quali
fication to determine the original owner as between the two groups
(Respondent s Postheanng Br p 9) No identification is made of the
groups referred to and there is no evidence that any group other than the
Grievance Committee is entitled to or claims to be entitled to all or any
portion of the funds collected from the employees by the Respondent A
bare assertion by Archer that 80 percent of the unlicensed employees and
members of the unit crossed the picket line and have been working in no
way raises any question as to the right of the Grievance Committee to
receive the union dues collected pursuant to the collective bargaining
agreement in which it is the exclusive bargaining representative of the
unit
15 In Georgetown Holiday Inn 235 NLRB 485 486 (1978) the Board
noted However it is well settled that the names and addresses of unit
employees like wage data are presumptively relevant to the Union s role
as bargaining agent either during contract negotiations or during the
terms of an agreement Hence no showing of particularized need was
necessary
16 Boston Herald Traveler Corp 110 NLRB 2097 (1954) enfd 223 F 2d
58 (1st Cir 1955)
BRISTOL CONVALESCENT HOME
backed up by any evidence which would require that I
ignore the fact that there is a subsisting collective bar
gaining agreement in effect between the Respondent and
the Grievance Committee
Consequently , I find that the Respondent has violated
Section 8(a)(5) of the Act by its refusal to remit the
union dues collected and by its refusal to furnish the in
formation requested
E Termination of Marilyn VanBeveren
The reason given for the discharge of Marilyn VanBe
veren who was secretary of the Grievance Committee
was that she stole a suggestion box Archer testified that
there was no other reason for her discharge The expla
nation furnished by Beverly C Perugini, the director of
nursing services, sounded like a prepared statement for
the record rather than a statement of the actual reasons
for the discharge
Q Why was she terminated?
A The employees suggestion box belongs to all
employees Since eighty per cent were in the build
ing, the box basically belonged to the majority of
the employees of Bristol Convalescent Home
Q Why did you decide to terminate her?
A Its a violation of the personnel policy Any
stealing of property-it s one of the conditions of
discharge under the personnel policy of our facility
JUDGE LAWRENCE Were you offered any expla
nation as to why she took the suggestion box?
THE WITNESS Because she thought it belonged
to the Union Eighty percent of the union members
were still in the building
Archer, who made the decision to fire VanBeveren
testified that the suggestion box was an employees sug
gestion box, it was removed from the employees staff
dining room that immediately on its removal the Di
rector of Nurses asked her to return it which she did,
and then we had a meeting the next day with one of the
in house grievances representatives with us " VanBever
en s explanation that she had been asked to remove it by
Pearson, that she thought it belonged to the Grievance
Committee and that she complied immediately with Per
ugini 's demand for return of the box, seems to have
fallen on deaf ears She was fired for taking the box out
to her car
According to Archer the suggestion box had been in
stalled at Pearson s request for the benefit of the employ
ees to collect suggestions for what she termed general
facility benefit " Archer said she had a key for it, but ad
mitted that the contents of the box had never been re
moved by anybody to her knowledge from the time of
its installation a year before the incident with VanBe
veren When asked whether there existed any arrange
ment for emptying the box from time to time, she con
ceded that Pearson as head of the Grievance Commit
tee, was supposed to do it and that he was supposed to
monitor the contents of the box for whatever purposes
the Grievance Committee wanted
In spite of this testimony Archer insisted that VanBe
veren was discharged for removing facility property
635
It was facility property, in the facility, attached to
the physical plant of the facility " This inappropriate in
vocation of the law of fixtures was followed by asser
tions on her part that she had a key to the box and that
from time to time she opens the box to read the employ
ees suggestions
Archer s careful restriction of her testimony apropos
of the last mentioned point to the present tense under
scores the evidence that current practice is not what pre
vailed up to June 14 and corroborates testimony by
Hutchins that the box was constructed by a friend of his
mother and that he had the only key to it Pearson testi
feed that the box was intended as a receptacle for sugges
tions from employees relating to upcoming contract ne
gotiations Whereas Archer admitted that she had never
opened the box prior to June 14, Pearson testified that
his practice was to open it every 2 weeks, review the
suggestions, and return them to the box for storage until
needed He asked VanBeveren to get the box for him
when she returned to work because he felt that an undue
length of time since he had reviewed its contents (prior
to June 14) had elasped
I conclude on the basis of all the testimony on the
point that the box was installed at the request of the
Grievance Committee for its own purposes rather than
those of the Respondent and that Archer and Perugini
were well aware of the fact Even in the event of the
far fetched possibility that they believed the box really
was property of the Respondent , I would expect that
Archer and Perugmi would have intuitively recognized
that the caption and asportation of the box by VanBe
veren were without the criminal intent required for
criminal liability to attach to her act, and that thieves do
not usually return property on request
The firing of an employee on a trumped up charge
such as this is indicative of animus Other evidence of it
is abundant The fact cannot be ignored that this incident
occurred at the very inception of her return to employ
ment with the Respondent in her capacity as a nurses
aide in training into which she had been invited after she
had contested her layoff from her job as recreation direc
tor by filing a charge with the National Labor Relations
Board and by filing a grievance through the Grievance
Committee Though VanBeveren had to cross the picket
line to report back to work there was no question as to
where her sympathies lay
It was apparent that VanBeveren was an ardent sup
porter of the Grievance Committee and an active partici
pant in its activities Even after she was fired, she had an
exchange with Archer regarding differentials in pay of
new employees in violation of the collective bargaining
agreement and she had alerted new workers of the fact
that there was a contract and that it contained pay provi
lions different from the pay scale under which they were
working Although Respondents personnel may not
have been aware of all her activities, they certainly knew
her attitude and interests They avoided rehiring her
after her return from medical leave on July 7 She testi
feed she offered to take another job other than recreation
director and she finally agreed to nurses training They
fired her at the first opportunity after she began training
636 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
She returned on August 9, the incident with the box oc
curred on August 10, she was discharged on August 11
VanBeveren testified that when Perugini directed her
to bring the suggestion box back from her car, Perugini
declared that she didn t know where my loyalties were,
in there or outside with them Though Perugini
testified after VanBeveren, she did not deny making the
statement and offered no explanation of it In the meet
ing on August 11 VanBeveren was told as soon as she
walked into the room that she had broken every rule in
the place by taking the suggestion box out of the place
and that they had a meeting and that they had no alter
native but to terminate me It was all settled before she
walked in
Accordingly, I find that she was discriminatorily dis
charged in violation of Section 8(a)(3) of the Act
F Refusal to Reinstate Unlicensed Employees Who
Refused to Cross Picket Line
A group of more than 20 members of the Grievance
Committee, including its chairman, Abraham Pearson
and two officers, Stuart Hutchins and Robert C Pinng,
did not cross the picket line set up by CSFT when they
arrived for work on Monday morning June 14, though
they were dressed for work The complaints issued by
the General Counsel in Cases 39-CA-1419, 39-CA-1420,
and 39-CA-1469, all allege that they refused to cross
the picket line and that Respondents actions against
them because of it were discriminatory in violation of
the Act The Respondent contends that these workers
engaged in an unlawful sympathy strike which violated
the no strike provision contained in the collective bar
gaining agreement That provision reads as follows
15 It is mutually agreed by the parties to this
Agreement that there shall be no strike slowdown,
walkout or stoppage of work by the Committee
nor shall there be any lockout by the Employer
during the life of this Agreement and that any dif
ference or misunderstanding that may apse between
the contracting parties shall be amicably adjusted
by and between the parties themselves and if the
parties themselves cannot amicably adjust the differ
ence then the matter shall be referred to arbitra
tion as provided for in this Agreement
Pearson and Hutchins testified that they did not cross
the picket line because they were fearful of harassment
and violence Pearson also testified that they did not
cross because a signal which the Respondent was sup
posed to give them was never given In addition, Pear
son testified that they could not come into the Home on
the van that the Respondent was using to bring most of
the employees in because they had never been advised of
the location of the pickup points
The concern about the possibility of violence testified
to by Pearson and Hutchins seems to have had some
basis in fact for the Respondent made elaborate provi
sions to bus in employees through the picket line in a
van with covered windows It also hired security guards
However, evidence of actual violence or harassment is
almost nil Only two incidents were testified to by Pear
son and Hutchins In one, a woman who started crossing
without the signal from the security guards was pushed
back and denied admittance by the security guards she
was not given a rough time by the pickets In the other
incident, a male nurse who tripped on the way in blamed
the pickets
Though no signal came from the Home attempts to
telephone Archer or contact her in some other fashion
were extremely lackadaisical and Pearson s testimony
shows that he was interested in having a meeting with
Archer rather than safe conduct through the picket line
On Monday morning, June 14 Pearson tried to talk to
Archer by telephone, but waited 4 hours before placing
the call When he did, he asked for a meeting, and said
nothing about difficulty getting across the street past the
picket line On Tuesday morning, June 15, he waited 3
1/2 hours before placing a call and again asked for a
meeting He testified that he was unable to tell Archer
anything more than that he wanted a meeting because of
her abruptness and refusal to converse with him
Nevertheless, on the third morning, Wednesday June
16 the fear of violence appears to have vanished and
Pearson and several others started through the picket
line to cross the street without any signal from the Home
or the people guarding it They were not stopped by the
picket line Archer stopped them by waving them off
They telephoned her from a nearby house and Archer
told them she did not want them on the property
No attempt was made by Pearson or Hutchins to ex
plain the failure to send a message to Archer through the
employees who were regularly reporting to work inside
the home Their accusation that Archer deliberately con
cealed from them the location of the points at which the
van was picking up workers who wished to cross the
picket line rings hollow in view of the utter lack of any
evidence that all the persons who honored the picket line
were lacking that information or any evidence that even
a minimal attempt was made to get that information from
the hundred or so employees who were riding the van
or coming in in their own cars Pearson in fact, testified
that the location of the pickup points was discussed in an
open meeting of the Grievance Committee just before
the strike started
I believe that the explanation lies in Pearson s testimo
ny that he was in contact- consultation might be a
more accurate description-with Carl Linneon the
CSFT strike manager on the scene The overwhelming
impression that I have from the testimony is that in fail
ing to cross the picket line the unlicensed employees and
members of the Grievance Committee were acting in
sympathy with the strike called by CSFT The testimony
of Pearson and Hutchins exhibited confusion, which mdi
cates that a combination of motives unquestionably exist
ed This is apparent in the testimony regarding the pur
pose of the telephone calls to Archer and what they
wanted to negotiate Pearson indicated in his testimo
ny that he wanted to discuss the failure of Archer to
signal the Grievance Committee members that it was all
right to attempt to cross the picket line Hutchins said
they wanted to let Perugini know that they did not
know where to congregate to be given a ride through
BRISTOL CONVALESCENT HOME 637
the picket line in the van He also indicated, somewhat
vaguely, that he wanted to discuss whether they should
use the van or their own cars and he wanted to
straighten out the matter of his having been replaced
His explanaton for remaining on the picket line was that
he saw the male nurse get tripped That was the first
day and I figured since we did not get in there on the
first day because of that wed have to negotiate to get
back in
However, in any of the eventualities just discussed, the
failure to cross the picket line constituted activity pro
tected by law If the actions of those who honored the
picket line are viewed as a sympathy strike, as contended
by Respondent, such a strike did not violate the no strike
provision quoted above from the collective bargaining
agreement, since it does not contain an express waiver of
the right to conduct a sympathy stnke 17 If the refusal to
cross the picket line was prompted, in the case of some
of the unlicensed personnel, by fear of harassment or vio
lence or by mere sympathy with the strikers, on a purely
individual basis, it is protected activity The motive is
immaterial 18 The right to act on an individual basis, de
spite the formal action of the Grievance Committee in
deciding not to honor the CSFT picket line is pre
served 119
That being the case, the failure of the Respondent to
honor the Grievance Committee's written request for the
reinstatement of the signatories to the letter of August 8
must be held to constitute a violation of the Act unless
the Respondent establishes the existence of a valid reason
for refusing such reinstatement, which excludes the dis
crimination which is alleged 20
The Respondent wholly failed to do so Instead it sug
gested several transparently pretextual reasons (1) that
the requirements of the nursing home operation had
made the hiring of those replacements necessary, (2) that
an intervening Connecticut statute had rendered the unli
censed employees who had been terminated no longer
qualified, and (3) that the employees had violated compa
ny policy by failing to telephone in for 2 consecutive
days to advise that they were not coming in
Reference has been made to circumstances from which
union animus may be inferred and to hostility to the ac
tivities of the employees in the discussion of VanBever
en s termination In connection with these other employ
ees Archer freely admitted that they were not reinstated
17 A no strike provision in a collective bargaining agreement that does
not expressly refer to sympathy strikes or refusal to cross picket lines
does not waive those rights and discharge of employees who exercise
such rights is an unfair labor practice in violation of the Act Amcor Devi
stun 247 NLRB 1056 ( 1980) enf denied 641 F 2d 561 (8th Or 1981) (on
basis that other evidence established that union did not maintain its right
to engage in sympathy strikes but restating and confirming the principle
of nonwaiver as stated ) Gary Hobart Water Corp 210 NLRB 742 (1974)
enfd 511 F 2d 284 (7th Cir 1975)
18 Under Board decisions motivation for refusal to cross a picket line
is irrelevant Congoleum Industries 197 NLRB 534 (1972) Cooper Ther
mometer Co 154 NLRB 502 (1965)
19 An employee who honors a lawful picket line is engaged in protect
ed activity without regard to whether he is a member of the picketing
labor organization or is merely sympathetic to the objectives of the
picket line Kapiolani Hospital 231 NLRB 34 42 43 (1977) enfd 581 F 2d
230 (9th Or 1978)
20 Laidlaw Corp 171 NLRB 1366 (1968) enfd 414 F 2d 99 (7th Cir
1969) NLRB v Fleetwood Trailer Co 389 U S 375 (1967)
because they had honored the picket line She did not
deny and admitted facts from which animus can be in
ferred, such as her refusal to admit or talk to Pearson,
Hutchins, and Piring when they crossed the picket line
on the morning of June 16 her insistence that she had
not replaced them but terminated them ( They voluntari
ly quit their job as far as we were concerned ), and as
will be mentioned below, her refusal to reinstate employ
ees whose jobs had not been filled by replacements 21
Archer refused reinstatement to all the 22 employees
who requested it, though only 12 of the positions were
actually filled and 10 jobs remained available That is
not, however, the whole story, because the replacements
were not hired right away The list of replacements fur
nished by Archer in the course of her testimony shows
that three positions were not filled by replacements until
July Hutchins was not replaced until mid August Pear
son, on the other hand, was replaced on June 15
Shift Nurses Aide Replacement
Hired
73 Donna Parenti 7/7
73 Helen Swanson 6/15
73 Virginia Briggs 7/10
73 Dorothy Coppola 6/25
73 Susan Gennett 6/22
3 11 Heidi Kottke 6/15
73 Jean Perkins 6/29
3 11 Ann Mane Skorupski 6/22
3 11 Cathy Vanderheubal 6/28
3 11 Susan Thibodeau 7/2
73 Susan Hutchins 8/17
84
Porter
Abraham Pearson 6/15
The Respondent failed to meet the test as set forth in
Gary-Hobart Water Corp 210 NLRB 742, 746 (1974)
enfd 511 F 2d 284 (7th Cir 1975)
The Board has held in cases involving sympathy
strikes although primarily when the activity was
engaged in at the premises of another employer
that although the refusal to cross the picket line of
another union is protected this right must be bal
anced against the business interest of the employer
and that it is only when the employers business in
terest to replace employees is such as clearly to out
weigh the employees protected right that an inva
sion of the statutory right is justified (Redwing Car
riers Inc, 137 NLRB 1545, Overnite Transportation
Co, 154 NLRB 1271) The termination of employ
ees is justified where the employer `acted only to
preserve efficient operation of his business, and ter
minated the employees only so it could imme
21 That terminations were not for the purpose of preserving the Re
spondent s operations at requisite level of efficiency but were punitive in
nature may be shown by the fact of replacement of only a few of the
discharged employees after a lapse of time and failure to demonstrate that
terminations were necessary in order to obtain replacements Gary Hobart
Water Corp supra
638 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
diately or within a short period thereafter replace
them (Redwing Carriers, supra at 1547)
The assertion that failure to telephone in was a factor
in their termination is not borne out by statements made
by Archer to the State of Connecticut in connection
with the employees unemployment insurance claims It
is a reason that was never asserted prior to the hearing
and was only brought up at the 11th hour in the course
of Archer s testimony
The assertion that newly hired personnel, especially
nurses aides, were required to be certified in accordance
with Connecticut state law, which became effective Jan
uary 1, conflicts with the facts that 12 new employees
were not certified when they were hired, not all the 22
who honored the picket line and were seeking reinstate
ment were nurses aides , because the 22 were already in
the Respondents employ at the time the statute went
into effect, they were either exempt or were entitled to
become certified by taking an examination (as the 12
newly hired aides did after they were hired), and they
were entitled to preference under the collective bargain
ing agreement The pretextual nature of the Respondent's
asserted reason for refusing to reinstate them is demon
strated, among other things, by the case of Robert
Pinng , who had been theraputic recreation program di
rector He had been president of the Grievance Commit
tee and , under the Greivance Committee constitution, at
the time of the strike held the office of adviser to the in
cumbent president, Pearson He was also serving as
union steward for the recreation department Pinng testi
feed that he became certified as a nurses aide by taking a
challenge test at the Bristol Convalescent Home 2
months before the strike He therefore could have been
recalled without difficulty so far as the new law was
concerned
Thus all the employees involved were either already
qualified under the new legislation , had specialties that
did not require certification were exempt because they
were working in the subject positions at the time the leg
islation became effective, or were prepared and qualified
to take tests to obtain the necessary certification
As I find the reasons stated by Respondent for its fail
ure to reinstate the employees who unconditionally re
quested reinstatement on August 8 to be pretextual I
find that the Respondent has violated Section 8(a)(1) and
(3) of the Act 22
III THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The unfair labor practices committed by the Respond
ent have a close intimate, and substantial relationship to
trade, traffic, and commerce among the several States
and tend to lead to labor disputes burdening and ob
structing commerce and the free flow of commerce
CONCLUSIONS OF LAW
1 Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act
22 NLRB Y Wright Line 251 NLRB 1083 (1980) enfd 662 F 2d 899
(1st Cir 1981) cert denied 455 U S 989 (1982)
2 The Grievance Committee and CSFT are labor or
ganizations within the meaning of Section 2(5) of the
Act
3 The Grievance Committee at all pertinent times
was, and continue to be, the exclusive representative for
the purposes of collective bargaining within the meaning
of Section 9(b) of the Act of employees of Respondent in
a bargaining unit defined as follows
All service and maintenance employees, including
employees in the dietary department, nursing de
partment, housekeeping department maintenance
department, laundry department and administrative
aides, recreation directors, patient care coordinator
administrators aide but excluding registered nurses,
licensed practical nurses, clericals, supervisors and
guards, as defined in the National Labor Relations
Act
4 Respondent violated Section 8(a)(1) of the Act by
(a) Promising increased wages, pension benefits job se
cunty and improved working conditions if employees
abandoned a strike in which they were engaged and re
jected CSFT as their collective bargaining representa
tive
(b) Threatening employees with closure of the Bristol
Convalescent Home unless they abandoned support for
the CSFT
(c) Soliciting employees to support a company union
5 Respondent violated Section 8(a)(1) and (3) of the
Act by
(a) Discharging and refusing to reinstate the following
named employees because they refused to cross a picket
line established by CSFT on June 14, 1982, Stuart
Hutchins Robert Pinng Abraham Pearson, Donna Par
enti , Helen Swanson, Virginia Briggs, Dorothy Coppola,
Brenda Eastman Carrol Edwards Susan Gennett Nelly
Goff, Heidi Kottke, Jean Perkins, Ann Marie Skorupski
Maureen Soucy, Susan Thibodeau Anna Mane Ross
Lisa Belanger , Geneva Earls, and Janice Palance
(b) Discharging Marilyn VanBeveren
6 Respondent violated Section 8(a)(1) (3), and (5) of
the Act by
(a) Refusing to pay accrued vacation pay to the fol
lowing employees because they engaged in a strike
Babara Belanger Joanne Houle
Claudia Connelly Linda Dorman
Sandra Festa Eva Sheets
Carol Malteius Tanya Sakowski
Marilyn Poirer Mabel Hallstein
Clara Posa
(b) Refusing to pay accrued vacation pay to the fol
lowing employees because they refused to cross a picket
line established by other striking employees Stuart
Hutchins, Robert Piring Abraham Pearson , Donna Par
enti, Helen Swanson, Virginia Briggs , Dorothy Coppola,
Brenda Eastman , Carrol Edwards Susan Gennett, Nelly
Goff Heidi Kottke Jean Perkins Ann Mane Skorupski,
Maureen Soucy Susan Thibodeau, Anna Mane Ross,
Lisa Belanger Genera Earls, and Janice Palance
BRISTOL CONVALESCENT HOME 639
7 Respondent violated Section 8(a)(1) and (5) of the
Act by
(a) Refusing to furnish to the Grievance Committee in
formation it requested regarding the names , dates of hire,
titles or names of positions and rates of pay for all mdi
viduals hired into the bargaining unit described in Con
clusion of Law 3, supra, and the amount of dues collect-
ed from employees ' checks since June 14, 1982 , pursuant
to the checkoff provisions of the collective bargaining
agreement between the Respondent and the Grievance
Committee
(b) Ceasing the remittance to the Grievance Commit
tee of dues deducted from employees paychecks pursu
ant to the checkoff provisions of the collective bargain
ing agreement between the Respondent and the Gnev
ance Committee without prior notice to the Grievance
Committee or affording the Grievance Committee an op-
portunity to negotiate and bargain with respect to refusal
to make deductions or remittances
THE REMEDY
Having found that the Respondent engaged in unfair
labor practices , I recommend that Respondent be direct
ed to cease and desist therefrom and take certain affirma
tive action to effectuate the policies of the Act I recom
mend that the Respondent be directed to offer to all the
employees named in Conclusion of Law 5 immediate and
full reinstatement to their former positions or, if these
positions are no longer available, to substantially equiva
lent positions , without prejudice to their seniority or
other benefits and privileges , and that Respondent be di
rected to make them whole for any loss of earnings they
may have suffered by reason of their discharge, with
backpay to be computed in the manner prescribed in
F W Woolworth Co, 90 NLRB 289 (1950), with interest
to be computed in the manner prescribed in Florida Steel
Corp , 231 NLRB 651 (1977) and Isis Plumbing Co 138
NLRB 716 (1962) In the case of Marilyn VanBeveren,
backpay is to be computed from the time of her dis
charge on August 11 , 1982, less her net earnings for the
period In the case of the other employees , who were re
fused reinstatement , backpay shall be computed from the
date of their unconditional offer to return , to wit August
8, 1982 , less their net earnings for the period In this con
nection , with respect to all of these employees , I will fur
ther recommend that the Respondent , with respect to
each such employee , be directed to expunge from its files
any reference to the disciplinary discharge of the em
ployee and notify the employer that such action has been
taken and that evidence of the employee 's unlawful dis-
charge will not be used for future personnel actions
against the employee
Apart from and separate from the above recommended
direction for payment of backpay and interest , I will fur
ther recommend that the Respondent be directed to pay
to the employees named in Conclusions of Law 6 the ac
crued vacation pay that the Respondent has withheld
from them , with interest Finally , I will recommend that
the Respondent be directed to turn over to the Gnev
ance Committee all dues deducted from the paychecks of
employees in the above described unit and that Respond
ent provide to the Grievance Committee as soon as prac
ticable the information the Grievance Committee re
quested on August 9 1982 , as set out in Conclusion of
Law 7(a)
[Recommended Order omitted from publication