Child Development Council of Northeastern Pennsylvania

National Labor Relations Board - Board Decisions

Aug 24, 1994

314 N.L.R.B. 845 (N.L.R.B. 1994)

845
314 NLRB No. 140
CHILD DEVELOPMENT COUNCIL OF NORTHEASTERN PENNSYLVANIA
1 We defer deciding the remaining issues until the judge issues his
supplemental decision.
Child Development Council of Northeastern Penn-
sylvania, Inc. and American Federation of
State, County and Municipal Employees, Dis-
trict Council 87, Local 2562 (AFSCME). Case
4–CA–20011
August 24, 1994
ORDER REMANDING PROCEEDING
BY MEMBERS STEPHENS, DEVANEY, AND COHEN
On October 19, 1993, Administrative Law Judge
Hubert E. Lott issued the attached decision. The Gen-
eral Counsel and the Respondent filed exceptions and
supporting briefs, and both filed answering briefs.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and finds
it necessary to remand the proceeding to the judge for
additional factual findings.
The amended complaint alleges, inter alia, that the
Respondent’s attorney, David Koff, violated Section
8(a)(1) by telling employees during a June 27, 1991
bargaining session that if the employees went on
strike, the most senior employees would be the first to
be permanently replaced. The judge found this state-
ment to be an unlawful threat that violated Section
8(a)(1), but he found it was not a contributing cause
of the July 1, 1991 strike.
The Respondent excepts to the judge’s finding of a
violation. The Respondent argues that the statement
was not punitive, destructive, or motivated by union
animus, and was motivated by legitimate economic
considerations. The General Counsel excepts, inter alia,
to the finding that Koff’s statement was not a cause of
the strike. For the reasons set forth below, we find that
the disposition of these issues requires that the judge
make further factual findings.1
In his factual narration, the judge found:
Koff stated that if the employees went on strike
the company would have to permanently replace
strikers in order to keep the childcare centers op-
erating and that employees would be replaced in
reverse order of seniority (most senior employees
replaced first) since they are the most costly. Koff
testified that [Executive Director] Gurbst had
done and [sic] analysis of sick-leave and vaca-
tions and concluded that $40,000 could be saved
by replacing senior employees first. None of the
this was explained to the Union nor was Gurbst’s
analysis offered into evidence. [Emphasis added.]
At the hearing, Union Negotiator Edward Harry tes-
tified that Koff did not say that there was an economic
reason for his statement:
Q. When Mr. Koff indicated that Child Devel-
opment Council would continue to operate and
hire permanent replacements by inverse senior-
ity—that is, replacing the most senior first—did
he articulate an economic reason for that position?
A. No.
Q. Did he state that the most senior had the
most benefits, and replacing them first would be
an economic gain to the Child Development
Council?
A. No.
Q. When that statement was made, you were at
a bargaining session, were you not?
A. Yes.
Ellen Davenport, a negotiating committee member
who ranked first on the employee seniority list, testi-
fied as follows concerning Koff’s statement:
Q. Mr. Koff made a statement that replacement
workers would be hired, and that the most senior
would be replaced first on down. Is that correct?
A. On what?
Q. On down to the least senior?
A. Right.
Q. Did he explain why CDC was going to take
that action?
A. I don’t remember. I really, I don’t remem-
ber. I don’t think so.
Q. It’s possible that he did?
A. I don’t recall any of that discussion about
why.
JUDGE LOTT: Well, you wrote it down in the
minutes. It must have been pretty important.
THE WITNESS: You mean about—
JUDGE LOTT: Yes, inverse order. Okay.
THE WITNESS: Oh.
JUDGE LOTT: Replacement in inverse order.
You wrote it down, right?
THE WITNESS: Oh, yes, because those were the
five things.
JUDGE LOTT: That was important, wasn’t it?
THE WITNESS: Yes.
JUDGE LOTT: Okay. And you don’t remem-
ber—
THE WITNESS: But he didn’t—if he said be-
cause it would be cheaper? He didn’t say that, be-
cause it would be cheaper.
JUDGE LOTT: Then what’s your testimony? He
said nothing other than the bare statement?
THE WITNESS: Right. That’s my testimony. He
looked at me and said they’ll replace, and I’d be
the first replaced. So, I mean, he didn’t say—that
846 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 We do not now decide whether the statement, if explained, would
be lawful.
the most senior person would be replaced first, is
what he said.
Q. (Respondent’s Counsel): Now you just testi-
fied that he looked at you and said you would be
the first one replaced?
A. No, I’m sorry. I’m correcting that. He
looked at me and he said, ‘‘The most senior per-
son would be replaced.’’ That’s me.
. . . .
Q. Dave Koff was looking straight ahead when
he said this?
A. Looking right at me.
Q. But straight ahead?
A. I was right in front of him. He was looking
at me.
. . . .
Q. But I want to make clear, you weren’t sit-
ting down at the end of the table. He didn’t look
down at the end of the table and say, ‘‘And the
first one to go is going to be the most senior?’’
You were right across from him; is that correct?
A. Right.
Attorney Koff also testified about what he told the
employee negotiating committee concerning a strike:
I then said to them that considering the nature of
this business, the agency has to stay open, be-
cause if it closes, the subsidy is gone. The agency
would attempt to stay open. But if did, it would
probably be necessary to hire permanent replace-
ments. And if that occurred, that the intent of the
agency was to replace employees with the most
senior first and going down the list. And I specifi-
cally gave the reason, which was that it was a
matter of cost, and I mentioned two items: vaca-
tions and sick leave. Those were the two areas
that we thought there would be a substantial sav-
ings going that way.
And, in fact, when—in the conversations I had
with Ms. Gurbst, the calculation was some where
in a $40,000 range.
JUDGE LOTT: What do you mean, $40,000 sav-
ings?
THE WITNESS: Yes.
JUDGE LOTT: Per—
THE WITNESS: If you go down the list as op-
posed to up the list.
JUDGE LOTT: Per month, per year, per week?
THE WITNESS: Per year.
JUDGE LOTT: Alright.
THE WITNESS: When the reason Your Honor, if
you will, you have, I believe, a joint exhibit,
which is the collective bargaining agreement. If
you look you’ll see that there is a rather unique
provision—not unique, but different provisions
which provide for vacations and sick leave for
those hired prior to July 1, 1979 and those hired
afterwards.
. . . .
Q. You, in conjunction with Ms. Gurbst, for-
mulated the procedure for the formula for recall
by inverse seniority or for replacement by inverse
seniority?
A. Yes.
Q. Why did you at that meeting of June 27th
inform the Union and its negotiating committee
that you intended to hire permanent replacements
in the event of an economic strike?
A. There were two reasons: Firstly, it was my
opinion that the subject of the methodology of the
replacement is a mandatory subject of bargaining
and the Employer has an obligation to bargain
about it. We were in a situation where there
would not have been time between the 27th of
June and July 1st for another meeting. And if
there was a strike, the Employer would have to
begin a replacement process immediately.
The judge found that the Respondent’s announce-
ment at the last negotiating session, prior to the strike,
that striker replacement would be in reverse order of
seniority, was a threat to the negotiating committee
calculated to be punitive and was inherently destruc-
tive of employee rights because there was no valid rea-
son for making the announcement and because senior
employees were on the committee. The judge rejected
the Respondent’s contention that it had an economic
reason for making the statement. He found that the
economic justification for the statement was an after-
thought that was only used as a defense at the time of
trial.
In arriving at these conclusions, the judge failed to
address the above-quoted testimonial discrepancies
concerning what, if any, reasons Koff gave at the June
27 negotiating session for the statement that if employ-
ees struck the Respondent would permanently replace
strikers by inverse seniority. Resolution of these dis-
crepancies in the foregoing testimony may be critical.
As noted, in his factual narration, the judge found that
Koff said, on June 27, that senior employees would be
replaced first because ‘‘they are the most costly.’’ His
legal analysis, however, is based on the assertion that
any economic reason was a post-hoc ‘‘after-thought’’
used as a defense at trial.
We find the judge’s decision internally inconsistent
on this issue because, if Koff gave an economic reason
at the time he made the statement, then that economic
reason was not an ‘‘after-thought’’ and might con-
stitute a valid business justification.2 In addition, reso-
lution of the foregoing conflict in testimony was piv-
847CHILD DEVELOPMENT COUNCIL OF NORTHEASTERN PENNSYLVANIA
otal because the character of the strike may turn on
whether the alleged threat is unlawful.
The conflict in testimony should be resolved by the
judge, who had the opportunity to observe the de-
meanor of the witnesses at the hearing, and not by the
Board on the basis of a cold record. On remand, there-
fore, the judge should review the differing versions of
the testimony and determine which version or versions
should be credited. Accordingly, we remand this pro-
ceeding to the judge to make the requisite credibility
determination concerning what, if any, reasons Koff
gave for announcing at the June 27, 1991 bargaining
session that if the employees struck, the Respondent
would permanently replace strikers by inverse senior-
ity, and to make any other findings of fact and conclu-
sions of law that follow from the credibility determina-
tion or that may be otherwise supported by the record.
ORDER
It is ordered that this proceeding is remanded to the
administrative law judge for consideration of the mat-
ters discussed above.
IT IS FURTHER ORDERED that the judge shall make
the credibility determinations and findings of facts and
conclusions of law discussed above, and that he shall
prepare and serve on the parties a supplemental deci-
sion setting forth his determinations and findings, con-
clusions of law, and recommended Order based on
those determinations, findings, and conclusions. Fol-
lowing service of the supplemental decision on the par-
ties, the provisions of Section 102.46 of the Board’s
Rules and Regulations shall be applicable.
Margaret McGovern and Linda Carlozzi, Esqs., for the Gen-
eral Counsel.
Richard Ferguson, Esq., for the Respondent.
Timothy Bergen, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
HUBERT E. LOTT, Administrative Law Judge. This case
was heard in Scranton, Pennsylvania, on November 18, 1992,
upon unfair labor practice charges and amended charges filed
on August 20, 1991, and January 21, 1992. A complaint and
amended complaint issued on January 22 and September 10,
1992.
Respondent’s answers to the complaints, duly filed, denies
the commission of any unfair labor practices.
The parties were afforded an opportunity to be heard, to
call, to examine and cross-examine witnesses, and to intro-
duce relevant evidence. Since the close of hearing, briefs
have been received from the parties.
Upon the entire record, and based upon my observation of
the witnesses and in consideration of the briefs submitted, I
make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is a corporation with an office and principal
place of business in Wilkes Barre, Pennsylvania, where it is
engaged in the operation of 12 childcare centers at various
locations in northeastern, Pennsylvania. During the fiscal
year ending June 20, 1991, Respondent, in conducting its
business operations, derived gross revenues in excess of
$250,000 and purchased and received at its facilities prod-
ucts, goods, and materials valued in excess of $5000 directly
from points outside the Commonwealth of Pennsylvania.
The company admits, and I find, that it is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act and that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
The parties have had an amicable collective-bargaining re-
lationship for over 15 years. The last collective-bargaining
agreement extended from July 1, 1990, to June 30, 1991, and
covered two separate units: A professional unit comprised of
4 teachers and a nonprofessional unit of 80 employees.
Under this agreement, Respondent paid for all the health in-
surance benefits.
The parties negotiated from April to June 1991 but could
not reach agreement. On June 27, 1991, the parties met. The
Company was represented by Attorney David Koff and Ex-
ecutive Director Gurbst. The Union was represented by
AFSCME Representative Edward Harry and an employee
committee comprised of Ellen Davenport, who had 20 years’
service and was 1st on the seniority list, and four other em-
ployees whose seniority ranking was 2d, 5th, 9th, and 19th.
At this session, Harry presented eight union proposals. They
included four noneconomic proposals dealing mostly with se-
niority and layoffs, shift assignment, and transfers. The eco-
nomic proposals included $1500-per-year wage increase, em-
ployer payment of health insurance, bereavement pay, and in-
clusion of parents for employee sick leave. These proposals
were rejected by Koff, who made a final offer of no wage
increase and cost sharing on health insurance. Finally, Koff
stated that if the employees went on strike the Company
would have to permanently replace strikers in order to keep
the childcare centers operating and that employees would be
replaced in reverse order of seniority (most senior employees
replaced first) since they are the most costly. Koff testified
that Gurbst had done and analysis of sick leave and vacations
and concluded that $40,000 could be saved by replacing sen-
ior employees first. None of this was explained to the Union
nor was Gurbst’s analysis offered into evidence.
Harry and Davenport testified that on the evening on June
27 a membership meeting was held among 50 to 55 employ-
ees. Harry set forth the Company’s formal offer and dis-
cussed the open issues presented by the Union. He told them
that if there was a strike, the Company intended to replace
them in reverse order of seniority. Both Harry and Davenport
testified that employees were upset about the replacement
issue because they figured the negotiating committee would
be the first to go. Martina Jacobs, a 3-year employee, testi-
fied that Harry told the members that the Employer offered
no raise, would cut health benefits, and offered nothing on
848 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
noneconomic issues. When she heard that the Company con-
sidered noneconomic issues insignificant and that most senior
employees would be replaced first, she abstained from voting
instead of voting against the strike. The members voted,
overwhelmingly, to reject the Company’s final offer and to
strike.
The strike began on July 1 and ended on July 25, 1991.
The picket signs did not mention unfair labor practices or the
replacement of strikers. Nor were these issues mentioned in
any other way during the strike. On July 25, the parties met
and Harry told Koff the strike was over, get rid of replace-
ments and bring all the employees back and we will continue
to bargain for as long as it takes. Koff testified that he asked
Harry what would happen if they did not reach agreement
and Harry responded that he reserved the right to strike. Koff
asked how long they intended to bargain and Harry said 6
months. Koff stated that the Company had permanently re-
placed all strikers and he couldn’t accept the 6 months’ con-
dition because it would place a possible strike in the middle
of a semester.
On August 12, 1991, Harry made a written unconditional
offer to return to work in a letter to Koff. Fifty-four employ-
ees went on strike, twenty-six did not. From August 12,
1991, to January 13, 1992, 34 replacements were hired. On
January 13, 1992, Ellen Davenport was offered reinstatement.
Thereafter, all committee members were offered reinstate-
ment in order of seniority. Starting January 19, 1992, other
strikers were offered reinstatement by seniority.
Ellen Davenport testified that 2 weeks before the strike,
admitted Supervisor Connie Stroud told her not to discuss
the strike with the children’s parents. Stroud said Gurbst told
her to convey this message to the employees. Then Stroud
said, ‘‘Please tell your people because they could be fired.’’
Davenport testified that about the same time, she posted, in
the daycare center where parents go, a notice to members of
a strike authorization vote. She was never asked to remove
it.
Davenport further testified that while on the picket line,
admitted Supervisor Karen Bronsberg told her that Harry
wasn’t telling her everything, that a $500 bonus was offered.
She testified that she called Harry to confirm this and he said
he didn’t know what she was talking about.
Martina Jacobs testified that on June 18 or 21, Supervisor
Ellen Adams told her not to discuss the strike with parents
or she could lose her job.
Connie Stroud and Mary Ellen Adams testified that they
had no instructions from Gurbst about strike talk and that
they never told Davenport or Jacobs not to discuss the strike
with parents.
Karen Bronsberg testified she never mentioned a $500
bonus to Davenport.
The final allegation concerns Respondent’s request that
strikers, upon returning to work sign an ‘‘Acknowledgement
and Recordation of Unconditional Offer to Return to Work.’’
The form, among other things, acknowledges that the em-
ployee was engaged in an economic strike and that the em-
ployee unconditionally offers to return to work. No evidence
was taken as to whether this form was ever used, signed, or
required as a condition of reinstatement.
Analysis and Conclusions
I find the Respondent’s announcement at the last negoti-
ating session, prior to the strike, that striker replacement
would be in reverse order of seniority to be a threat to the
negotiating committee calculated to be punitive and was in-
herently destructive of employee rights because there is no
other valid reason for making such an announcement and be-
cause senior employees were on the committee. Respondent
contends that it had an economic reason for doing this. How-
ever, the evidence supports a conclusion that this was an
afterthought which was used as a defense at time of trial. I
also find that the statement is merely a violation of Section
8(a)(1) and did not inhibit bargaining because there was no
8(a)(5) allegation.
The issue then is whether or not the threat to the negoti-
ating committee was a contributing cause of the strike. I find
that it was not for the following reasons.
Although the striker replacement issue was discussed at
the employee meeting, so was Respondent’s unattractive final
offer. General Counsel did not carry her burden of proof that
striker replacement was a factor influencing any employees’
vote. She only called two witnesses who attended the meet-
ing. Davenport didn’t testify as to how she voted or why. Ja-
cobs testified that when she heard the company offer and the
proposal on replacements, she abstained.
General Counsel should have called some witnesses to tes-
tify that striker replacement was considered in their decision
to strike. Since she did not, I will presume that striker re-
placement was not an issue. Moreover, it should be noted
that at no time during the 25-day strike was there any men-
tion of unfair labor practice or striker replacement by reverse
seniority, either on picket signs or verbally. Finally, I con-
clude that the threat had no impact on the bargaining rela-
tionship. Accordingly, I find that Respondent’s final offer,
which would reduce employee wages, was the sole cause of
the economic strike.
I further find that an unconditional offer to return to work
on July 1 was not made by the Union because it wanted all
employees returned en masse and all replacements dis-
charged immediately. However, I do not find this condition
obtaining in the August 12, 1991 written unconditional offer.
Therefore, I find that Respondent violated Section 8(a)(3) of
the Act when it hired permanent replacements after August
12, 1991.
I do not credit the uncorroborated testimony of Davenport
and Jacobs over the flat denials of Stroud and Adams that
they threatened them with discharge if they discussed the
strike with parents.
I do not credit the uncorroborated testimony of Davenport
over the flat denial of Bronsberg that she mentioned a $500
bonus. Even Harry did not confirm any telephone call from
Davenport.
I can not consider the form acknowledging an economic
strike and an unconditional offer to return to work as a viola-
tion because there is no evidence in the record to support this
allegation.
CONCLUSIONS OF LAW
1. Respondent Child Development Council of Northeastern
Pennsylvania, Inc. is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
849CHILD DEVELOPMENT COUNCIL OF NORTHEASTERN PENNSYLVANIA
1 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
2 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
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
2. American Federation of State, County and Municipal
Employees, District Council 87, Local 2562 (AFSCME) is a
labor organization within the meaning of Section 2(5) of the
Act.
3. Respondent Child Development Council of Northeastern
Pennsylvania, Inc. violated Section 8(a)(1) of the Act by
threatening the bargaining committee with replacement by re-
verse seniority if a strike occurred.
4. Respondent Child Development Council of Northeastern
Pennsylvania, Inc. violated Section 8(a)(3) of the Act by hir-
ing striker replacements after strikers made an unconditional
offer to return to work.
5. All other allegations are dismissed.
6. The aforesaid unfair labor practices effects commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
The Respondent, having hired striker replacements after an
unconditional offer was tendered, must discharge all replace-
ments hired after August 12, 1991, and offer reinstatement
to all strikers where vacancies exist and make them whole
for any loss of earnings and other benefits, computed on a
quarterly basis from the date when a new permanent replace-
ment was hired (after August 12, 1991) until such time as
the striker is given a proper offer of reinstatement. Backpay
to be computed in accordance with current Board law.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended1
ORDER
The Respondent, Child Development Council of North-
eastern Pennsylvania, Inc., Wilkes Barre, Pennsylvania, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening the Union’s negotiating committee.
(b) Refusing to offer reinstatement to strikers.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer reinstatement to strikers in accordance with the
affirmative action set forth in the remedy section of this deci-
sion.
(b) Preserve and, on request, make available to the Board
or its agents for examination and copying, 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.
(c) Post at its facility in Wilkes Barre, Pennsylvania, cop-
ies of the attached notice marked ‘‘Appendix.’’2 Copies of
the notice, on forms provided by the Regional Director for
Region 4, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately 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.
(d) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT threaten the negotiating committee with per-
manent replacement by reverse seniority.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL discharge all striker replacements hired after an
unconditional offer to return to work was made by our strik-
ers and offer reinstatement to the strikers where vacancies
exist 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 they may
have suffered, where appropriate.
CHILD DEVELOPMENT COUNCIL OF NORTH-
EASTERN PENNSYLVANIA, INC.