Every Woman'S Place, Inc.

National Labor Relations Board - Board Decisions

Dec 11, 1986

282 N.L.R.B. 413 (N.L.R.B. 1986)

EVERY WOMAN'S PLACE
Every Woman's Place, Inc. and Cathee Doran. Case
7-CA-20797
11 December 1986
DECISION AND ORDER
BY CHAIRMAN DOTsoN AND MEMBERS
JOHANSEN ANID STEPHENS
On 19 September 1983 Administrative Law
Judge Donald R. Holley issued the attached deci-
sion. The Respondent filed exceptions and a sup-
porting brief, and the General ' Counsel filed a brief
in support of the judge's decision. -
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 briefs and has
decided to affirm the judge 's rulings, findings, l and
conclusions and to adopt the recommended Order
as modified.
Contrary to our dissenting colleague, we are not
repudiating the rationale of Meyers2 in concluding
that employee Cathee Doran 's telephone call to the
Wage and Hour Division of the U.S. Department
of Labor was sufficiently (linked to group activity
to constitute "concerted" activity within the mean-
ing of Section 7 of the Act. We note the judge's
finding, supported by the credited testimony of
Doran and the Respondent 's former acting director
Michael Tardani, that during at least several weeks
before Doran made that telephone call she and two
fellow employees had brought the matter of over-
time compensation for holidays to Tardani on at
least four or five occasions.
That Tardani was treating this as more than just
a complaint of Doran's is indicated by his testimo-
ny that, after approaching the new chief manage-
ment officer, Beverly Geyer, with the employees'
complaints , he "went [back] to them" with the
news that the matter was "`being investigated." Al-
though Doran made the subsequent telephone call
on her own, she made it because "we had -no re-
sponse" (emphasis added) on the complaint. The
call was a logical outgrowth of the original protest
by all three employees.
i The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
2 Meyers Industries, 268 NLRB 493 (1984), remanded sub nom. Frill v.
NLRB, 755 P.2d 941 (D.C. Cir. 1985), cert. denied 106 S.Ct 313, 352
(1985), reaffirmed 281 NLRB 882 (1986). Member Johansen , who did not
participate in Meyers, agrees that Meyers and similar decisions are distin-
guishable.
413
Unlike employee Prill in Meyers, who it was
found, was simply registering complaints about his
own truck and never made common cause with
any fellow employee with ' similar complaints,
Doran was seeking information because she and
fellow employees had received no response to their
common complaint . As a continuation of protected
activity, her conduct was concerted within the
meaning of Section 7 of the Acts It is immaterial
that she was not following express instructions
from the other employees in doing so. It was spe-
cifically noted in Meyers that, where the record
showed the existence of a group complaint, the
Board would not require evidence of formal au-
thorization in order to find that steps taken 'by indi-
viduals in furtherance of the 'group's goals are a
continuation of activity protected by Section 7 of
the Act.
Neither, contrary to our dissenting colleague,
does our decision here represent a return to Alle-
luia Cushion Co., 221 NLRB 999 (1975). Under that
doctrine the Board required no actual' demonstra-
tion of common complaints; the Board simply as-
sumed that any complaint to a government agency
that could benefit others automatically qualified as
an expression of common concern. We need rely
on no such assumption here. The employees had
spoken for themselves, and Doran was advancing -
those expressed interests with her cal1:4
a JMC Transport, 272 NLRB 545 in. 2 (1984), enfd. 776 F.2d 612, 617-
618 (6th Cir. 1985); Dayton Typographical Service, 273 NLRB 1205 ( 1984),
enfd. in relevant part 778 F.2d 1188, 1191-1192 (6th Cir. 1985). See also
Walter Brucker & Co., 273 NLRB 1306, 1307 (1984) (employee Wright's
complaint about wages deemed concerted where employee Culbreath re-
frained from taking action because of Wright's plan to complain).
We note that in Walter Brucker, supra, we dismissed the complaint be-
cause there was no showing that the employer knew of other employees'
concerns and because it could reasonably have believed that employee
Wright was simply protesting about his own wages Id. at 1307. To the
extent that we require a showing of employer knowledge of concerted
activity, it is satisfied in the present case by Tardani's testimony, noted
above, concerning the employees who came to him and by the linkage of
the telephone, call to the subject matter of those vocal complaints. It is
also noteworthy in this connection that when it was suggested, several
months after Doran was laid off, that she be rehired for a part-time posi-
tion Director Geyer vetoed the suggestion, observing that Doran and an-
other of the employees who had raised questions about the holiday com-
pensation policy were "negative influences ." Management thus evidently
viewed with alarm Doran's potential for stirring up opposition to its poli-
cies.
In two of the cases on which our dissenting colleague relies, Access
Control Systems, 270 NLRB 823 ( 1984), and American & Efird Mills, 269
NLRB 1077 (1984), each charging party employee had complained to his
employer about his own circumstance , and there was no evidence of any
relationship to group complaints . Another case he cites, Allied Erecting
Co., 270 NLRB 277 ( 1984), is closer to the present case, but there are still
distinguishing facts. In Allied greeting, charging ' party Collins was the
only employee who ever complained to the employer about wages, so
the employer would have had no necessary reason to connect his action
to group activity. Member Stephens also notes that in Mannington Mills,'
272 NLRB 176 (1984), the employee action at issue was a threat of a par-
tial work stoppage-a strike that would arguably be unprotected. It may
well make sense to require more in the way of a showing of authorization
where threats of actions that could cause employees to lose their jobs are
concerned.
282 NLRB No. 48
414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Every Woman's Place, Inc., Muskegon,
Michigan, -its officers, agents, successors, and as-
signs, shall take the action set forth in Order as
modified.
Substitute the, following for paragraph 2(e).
"(e) Post at its place of business in Muskegon,
Michigan, copies of the attached notice marked
"Appendix."' ° Copies of the notice, on forms pro-
vided by the Regional Director for Region 7, after
being signed by the Respondent's authorized repre-
sentative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consec-
utive days in conspicuous places including all
places where, notices to employees are customarily
posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered,
defaced, or covered by any other material."
CHAIRMAN DOTSON, dissenting.
I dissent on two grounds from my colleagues'
adoption of the judge's finding that the Respondent
violated Section 8(a)(1) by discharging employee
Cathee Doran because of her protected concerted
activities. First, I would decline to assert jurisdic-
tion over the Respondent, a nonprofit corporation
that provides shelter and counseling to runaway
youths. As I have stated previously, I would return
to the policy of Ming Quong Children's Center, 210
NLRB 899 (1974), and decline to assert jurisdiction
over nonprofit, charitable institutions unless it has
been demonstrated that such institutions have a
massive impact on interstate commerce. See my
dissenting opinions in Salvation Army of Massachu-
setts, 271 NLRB 195 (1984), and Alan Short Center,
267 NLRB 886 (1983). As no such showing has
been made here, I would not exercise jurisdiction
over the Respondent.
Secondly, I do not agree with my, colleagues'
conclusion that Doran engaged in concerted activi-
ty when she individually contacted the Wage and
Hour Division of the U.S. Department of Labor,
the act for which the Respondent discharged her.
A review of the undisputed facts will help to put
the issue into focus.
In 1981 Webster House for Runaways, Inc.
merged with the Respondent. During the merger
process employees of Webster House became con-
cerned as to what the Respondent's policy was
going to be with respect to holidays and compensa-
tory time. In October 1981 several employees, in-
cluding Doran, questioned Michael Tardani, the
Respondent's program coordinator, about the Re-
spondent's policy regarding these issues.' On 9 No-
vember 1981 Doran called the Wage and Hour Di-
vision to ask what pay employees were entitled to
receive for working on holidays. Doran subse-
quently reported the information she received to
Beverly Geyer, the Respondent's chief manage-
ment official. The Respondent subsequently dis-
charged Doran for having contacted the Wage and
Hour Division.
On these facts I cannot conclude that Doran's
contact of the Wage and Hour Division was con-
certed. As an initial proposition, I find that the
General Counsel failed to establish that the em-
ployees' questioning of Tardani regarding compen-
satory time for holiday work was concerted. As
noted above, the record is silent as to the circum-
stances surrounding this questioning. My colleagues
apparently presume that the employees questioned
Tardani together. Yet nothing in the record sup-
ports this presumption. From the record evidence
it is equally plausible that the employees questioned
Tardani individually on separate occasions. Under
Meyers,' such questioning is not concerted. As the
Board emphasized in that decision, "individual em-
ployee concern, even if openly manifested by sev-
eral employees on an individual basis, is not suffi-
cient evidence to prove concert of action." Meyers,
supra at 498. Obviously then, if the initial question-
ing of Tardani were not concerted, there can be no
basis for finding any subsequent individual act re-
lating to that questioning to be concerted.
Even assuming, arguendo, that the prior ques-
tioning of Tardani was concerted, I would not find
Doran's contact of the Wage and Hour Division to
be concerted. There is no evidence that Doran was
acting on the authority of any employees when she
made the call. In this regard, there is no evidence
that the employees intended to pursue the matter
further or that, if the matter were to be pursued,
the Wage and Hour Division should be contacted.
In fact, Doran testified, "I took it upon myself to
call the Wage and Hour Division." (Emphasis
added.) There is also no evidence that the employ-
ees in ' any way chose Doran as their spokesman, di-
rected her to make the contact, or were even
aware that she made the contact. Partial parallelism
of concern is not activity in concert. Moreover,
there is no evidence that Doran made the contact
in an, attempt to initiate, induce, or prepare for
group, action. Indeed, her first action after making
the call to Wage and Hour was to telephone the
I The record is silent as to the circumstances surrounding this ques-
tioning.
2 Meyers Industries, 268 NLRB 493 (1984), remanded sub nom. Prill V.
NLRB, 755 F.2d 941 (D.C. Cir. 1985), cert. denied 106 S.Ct. 313, 352
(1985), reaffirmed 281 NLRB 882 (1986).
EVERY WOMAN'S PLACE
Respondent's official Geyer, an , action obviously
taken on an individual basis. Further, there is no
evidence that the Respondent knew of the alleged
concerted nature of Doran 's call-a necessary ele-
ment to establish a, violation . See our first Meyers
decision, supra at 497.
Implicitly acknowledging this lack of evidence
that is required by the Board 's Meyers decision, to
establish the concerted nature of the activity, the
majority, nevertheless, fords Doran's contact of the
Wage and Hour Division and subsequent relay of
that information to the Respondent to be concerted
as they were a "logical outgrowth"s of the original
(unproved) joint protest and thus a "continuation
of protected activity ," citing JMC Transport, 272
NLRB 545 (1984) (Chairman Dotson dissenting).
In so finding , my colleagues have chosen to
ignore the dictates of Meyers, in which the Board
pointed out that, for individual acts to be protected
on the basis of concertediess, they must be per-
formed on the authority of the protected group,
the act involved must be protected , and the Gener-
al Counsel must prove than , the adverse action was
directed at the protected acts of - the group 's specifi-
cally designated agent.
In my opinion the majority, without regard to
what the General Counsel has in fact established or
failed to establish, fords concertedness by applying
the Alleluia4 presumption that individual actions re-
garding "group concerns" are-concerted-the very
legal fiction that the Board intended to eliminate in
its Meyers decision . The continued attempt to
create legal fictions-here a so-called logical out-
growth-as functional substitutes for evidence of
employees' actual behavior in the workplace con-
tributes little to realistic analysis and again turns
the Board into an ombudsman for the remedy of
every injustice in the workplace . Such a role is not
contemplated by the statute.5
a The appearance of such an undefined connective in the majority's
reasoning is a' matter of deep concern. One may derive almost any find-
ing by the use of such terms. One might, e.g., prove that separately
owned and operated aircraft were flying in formation. Such a finding
could, after all, be a "logical outgrowth" of the facts that the aircraft de-
parted the same airport within a minute or two of one another and had
the same destination . The respective pilots need not , of course, be aware
of their "concerted" act. Such reasoning does serious harm both to the
legal grammar of the term "concerted activity" and the logic of our
Meyers decision.
a Alleluia Cushion Co., 221 NLRB 999 (1975).
a Although not raised by my colleagues, I do not view Doran's dis-
charge for her call to the Wage and Hour Division as having a "chilling
effect" on the exercise of other employees ' Sec. 7 rights. As the Board
observed in Meyers II, in which employee Gore had also complained to
the respondent about the same truck as prompted employee Prill' s call to
OSHA, whatever remote incidental effect an otherwise lawful discharge
may have on other employees does not render the discharge unlawful
281 NLRB 882, 887.
415
, ` Moreover, the majority 's unexplained departure
from the Meyers analysis in this case leaves the
Board open to correction by a reviewing court for
failing to explain the reasoning behind its departure
from its own precedent . As then .Judge Scalia re-
cently criticized the Board:
The purpose of the APA requirement that
there be included in the agency's decision the
"conclusions, and the reasons or basis therefor,
on all the material issues of ... law" is only
secondarily to enable reviewing courts to dis-
cern irrationality . Its primary purpose is to
impose a discipline upon the agency itself, as-
suring that it has undergone a process of rea-
soned decision-making rather than haphazardly
reached a result that could (on one or another
basis of analysis) be sustained. . . . In the cir-
cumstances of this case; we think it was un-
questionably incumbent upon ' the Board to ex-
plain why it did not consider its decision a de-
parture from the principles established in its
prior cases, or why it considered a departure
appropriate.
Iron Workers Local 111 v. NLRB, 792 F.2d 241,
247-248 (D.C. Cir. 1986), denying enf. 274 NLRB
742 (1985). Accord : NLRB v. Metropolitan Life In-
surance Co., 380 U .S. 438, 443-444 (1965); NLRB v.
Indianapolis Mack Sales, 802 F .2d 280, 284-285 (7th
Cir. 1986), denying enf. 272 NLRB 690 (1984); Res-
taurant Corp. of America v. NLRB, , 801 F.2d 1390,
1395 (D.C. Cir. 1986), denying enf. 27-1 NLRB
1080 (1984). As another judge has observed,
"There may not be a rule for Monday, another for
Tuesday, a rule for general application , but denied
outright in a specific case." Mary Carter Paint Co.
v. FTC, 333 F.2d 654, 660 (5th Cir . 1964) (C.J.
Brown, concurring specially), quoted with approv-
al in NLRB v. Operating Engineers Local 925, 460
F.2d 589, 604 {5th Cir . 1972). The Board's recent
reaffirmation of the Meyers decision at 281 NLRB
882 (1986) stands in sharp contrast to my col-
leagues ' reasoning in this case , and their failure to
recognize this point fatally flaws their decision
here.
All that the evidence in this case in fact reveals
is that Doran, of her own accord, sought informa-
tion from the Labor Department and, of her own
accord, reported her findings to management.
Doran was discharged for individually contacting
the Labor Department . It is this type „ of conduct
that the Board found not to be concerted activity
416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in Meyers and subsequent cases.6 For these, reasons,
I dissent.
6 American & Efird Mills, 269 NLRB 1077 (1984); Allied Erecting Co.,
270 NLRB 277 (1984); Access Control Systems, 270 NLRB 823 (1984);
Mannington Mills, 272 NLRB 176 (1984).' I readily acknowledge that in
certain situations , unlike the present case, the evidence will warrant a
finding that an individual 's conduct is a factual continuation of prior con-
certed activity. See Dayton Typographical Service, 273 NLRB 1205 (1984);
The Loft, 277 NLRB 1444 (1986).
J. Frederick Gatzke, Esq., for the General Counsel.
Michael M. Knowlton, Esq. (O'Toole, Stevens, Johnson,
Knowlton, Potter & Rolf), for the Respondent.
DECISION
STATEMENT OF THE CASE
DONALD R. HOLLEY, Administrative Law Judge. On
an original charge filed in Case 7-CA-20797 by Cathee
Doran, the Regional Director of Region 7 of the Nation-
al Labor Relations Board (the Board) issued a complaint
on July 2, 1982, which alleged, in substance, that Every
Woman's Place, Inc. (EWP or Respondent) violated Sec-
tion 8(a)(1) of the National, Labor Relations Act (the
Act), on January 6, 1982, by laying off Cathee Doran be-
cause she had engaged in protected concerted activity by
contacting the Wage and Hour Division of the Depart-
ment of Labor concerning overtime pay for employees
who , worked on holidays. Respondent filed a timely
answer denying that it had engaged in the unfair labor
practice alleged in the complaint.
The case was heard in Muskegon, Michigan, on March
17, 1983. All parties appeared and were afforded full op-
portunity to participate in the proceedings. Subsequent
to the close of the hearing, the General Counsel and
counsel for Respondent filed briefs that have been care-
fully considered. On the entire record and from my ob-
servation of the demeanor of the witnesses, I make the
following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a Michigan corporation, is headquartered
at Muskegon , Michigan, where it is engaged in providing
crisis intervention, counseling services , and shelter to
women and youths, Its Webster House facility located at
125 Delaware Street in Muskegon is the only facility in-
volved in the proceeding.
The complaint alleges , and Respondent admits, that
during its fiscal year that ended September 30, 1981, its
gross revenue exceeded $500,000 and it provided services
for the State of Michigan that were valued at in excess
of $50,0001. It was further stipulated that during its fiscal
year , 1982 , Respondent's gross income dropped to ap-
proximately $354,598 although it continued to furnish
services to the State of Michigan in an amount valued at
in excess of $50,000.`
Observing that the operative facts in the instant case
all occurred during its 1982 fiscal year , Respondent con-
tends I should find the Board has no jurisdiction in this
case as its gross revenue during fiscal year 1982 was less
than $500,000. I find the contention to be without merit.
As noted by the General Counsel, the Board in St. Louis
Christian Home, 251 NLRB 1477 (1980), asserted juris-
diction over a facility that provided residential care and
therapy for abused and neglected children, that experi-
enced an annual gross income of $250,000, and that pur-
chased electricity and telephone services valued at ap-
proximately $16,000 from firms engaged in interstate
commerce. Here, Respondent's gross income for fiscal
year, 1982 exceeded $250,000 and it performed services
for the State of Michigan during fiscal year 1982 that
were valued in excess of $50,000. On these admitted
facts, I find that Respondent is an employer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act, and the Board has jurisdiction over Re-
spondent's operations.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Prior to October 1, 1981,1' Webster House for Run-
aways, Inc. was a small nonprofit corporation that pro-
vided shelter and counseling to runaway youth pursuant
to two contracts with the Michigan Department of
Social Services. It was headquartered in Muskegon,
Michigan, where it operated a resident facility called
Webster House.2 During the time period under discus-
sion, Mike Tardani was acting director of the operation.
He reported to a board of directors. Other persons em-
ployed included: Cathee Doran, counselor; Vicki Dunn,
outreach counselor; Bobby Thompson, paraprofessional
counselor; Cathy Hoff, office manager; Nellie Day,
house manager; and several hourly paid employees who,
in effect, babysat at, the facility when no salaried staff
member was present.
During the late summer of 1981, the board of directors
of Webster House for Runaways, Inc. voted to merge
with Every Woman's Place, Inc. Under the terms of the
merger agreement, Webster House was to convey its
assets to EWP. EWP was to become the licensee of the
residential and outreach contacts described above, and
the Webster corporation was to be dissolved.
When the merger of the two nonprofit corporations
became effective on October 1, Tardani no longer held
his commanding position as Beverly Geyer and her as-
sistant, Sue Ashby, became the chief management offi-
cials at the facility. Tardani was demoted to the position
of program director. In addition to the fact that the man-
agement hierarchy at the Webster House facility
changed at the time of the merger, the policies and pro-
cedures followed by EWP became the new policies and
procedures of Webster House. As a consequence, the
members of the Webster House staff, who met with Tar-
dani once each week at so-called supervisory meetings,
i All dates herein are 1981 unless otherwise indicated.
2 One contract funded activities at Webster House and was valued at
approximately $130,000. The second funded outreach community and
counseling services performed in Oceans and Newaygo Counties, which
are contiguous to Muskegon County. The latter contract was valued at
approximately $22,000.
EVERY WOMAN'S PLACE'
asked numerous questions about the new policies, and
procedures.3 One area of concern was the policy that
would be followed with respect to holidays and compen-
satory time. Tardani testified that Cathee Doran, Cathy
Hoff, and Vicki Dunn, in particular, asked him four or
five times what the holiday and compensatory policy
would be under EWP. Although Tardani sought to as-
certain what the policy would be in those areas, he indi-
cated Geyer could give him no definite answers.
B. Doran 's Wage and'Hour Inquiry
On approximately November 9, Doran telephoned the
Wage and Hour Division of the U.S. Department of
Labor to ask what pay employees were legally entitled
to receive if they worked ,on holidays. She indicated she
was informed employees were entitled to double time in
such situations. After discussing the matter with the
wage and hour spokesman, she telephoned Geyer and re-
layed the information she had received. She also told
Geyer whom she had talked to and who furnished her
with the wage and hour telephone number to enable her
to verify the information provided. Geyer subsequently
contacted the Wage and Hour Division and was fur-
mshed information by mail. After studying the informa-
tion provided, Geyer concluded that members of the
professional staff of EWP were exempt from the over-
time provisions of the Fair Labor Standards Act. It is
undisputed, however, that as a result of Doran's actions,
EWP amended its policies and procedures about Novem-
ber 19 to provide that members of the professional staff
who were required to work on holidays observed by
EWP would be granted 2 compensatory days off.4
Tardani testified that on November 18, Geyer in-
formed him that Doran had failed to observe the chain-
of-command policy of EWP by contacting her in the
wage and hour situation. She further indicated to Tar-
dimi that Doran had displayed a lack of tact in the situa-
tion, and that she felt that Tardani did not have his staff
under control. Tardani testified he defended Doran and
himself by informing Geyer that Doran had followed the
chain-of-command because she had asked him what
E'WP's holiday policy was and had contacted Wage and
Hour Division and Geyer only after Tardani was unable
to answer the inquiries made by Doran and other em-
ployees.s
C. The Fund Reduction
In early October, the Michigan Department of Social
Services notified Respondent by letter that it would fund
its existing runaway programs through December 31, but
that shortage of funds would require changes thereafter.
Subsequently, about November 19, that department noti-
fied Respondent that its residential (the Webster House
21 Tardam indicated in reports sent to Geyer after such meetings that
Webster House employees were apprehensive and concerned. See G.C.
Exhs. 23-26.
' See G.C. Exh. 4. The language adopted as a direct result of Doran's
contact with the Wage and Hour Division and Geyer is found at item 12,
p. 17 and under the heading "Exemption from Overtone" on pp. 50-52.
5 After meeting with Geyer, Tardam informed Doran that Geyer was
angry with her because she had not followed the chain -of-command in
the wage and hour matter.
417
in,Muskegon) contract would be, reduced by 20 percent
and/or or $19,487 for services to be provided from Janu-
ary 1 to September 30, 1982.
David Mills, the program manager for the Michigan
Department of Social Services Office of Children and
Youth Services, testified that when the budget cuts in
the residential contracts were announced, he contacted
the man in charge of the so-called "A" or outreach con-
tracts, 'which had not been cut, and ascertained that
counselors could devote less time to those contracts,
thereby enabling them to devote more time to the
slashed residential programs. While Mills indicated he
communicated such news to providers over the tele-
phone and during network meetings attended by provid-
ers, he could not recall any specific contact with any Re-
spondent management official.,
Geyer testified that, after considering various alterna-
tives for 3-4 weeks, she decided that Respondent would
have to lay off counselors to permit it to operate under
its reduced budget. As the residential rather than the out-
reach contract had been cut, she indicated that she de-
cided, in accordance with her normal policy, to lay off
counselors working in that program. The counselors
chosen were Cathee Doran and Bobby Thompson, the
paraprofessional counselor. Geyer explained that she felt
Mike Tardani, assisted by EWP master counselor Tony
Senna, who was working at Webster House approximate-
ly 25 percent of the time, could, if assisted by outreach
counselor Vicki Dunn, accomplish the necessary counsel-
ing at Webster House. Geyer further indicated that Sue
Ashby, her assistant, could relieve Tardani of some of his
administrative duties.
D. Tardani 's Attempts to Cause Geyer to Retain
Doran
After learning that Geyer had tentatively decided to
absorb the budget' cut in the residential contract by
laying off counselors, Tardani met with her on Decem-
ber 30, 1981, and January 4, 1982, in an attempt to cause
her to consider other possible solutions. During the De-
cember 30 meeting, he made suggestions that would
absorb approximately $18,500 of the $19,487 cut. The
plan involved, inter alia, reducing the house manager
(Nellie Day) and the secretary (Cathy Hoff) from an 8-
hour day to a 6-hour day. Geyer rejected his proposal,
indicating that she planned to lay Doran off and go to a
live-in arrangement for child care when the regular staff
was off. Tardani testified he asked Geyer to reconsider
her decision to lay Doran off, observing that Doran ac-
complished half of the counseling performed at Webster
House. Geyer's response was that Doran did not fit into
the 'team approach; that she had attitude and morale
problems and had not participated in some of the fund-
raising activities. Tardani further indicated that Geyer
told him that if Doran had been an EWP employee out-
side the merger situation, she would have been fired on
the spot for violating the chain-of-command and ap-
proaching Geyer in a manner that ' lacked tact. At the
conclusion of the meeting, Geyer informed Tardani that
she still planned to lay Doran off, but would think about
it.
418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
When Tardani and Geyer next met on January 4, Tar-
dani proposed that Respondent avoid a layoff by cutting
both Doran and Vicki Dunn's hours by 50 percent.
Geyer rejected the suggestion. Tardani then compared
Doran and Dunn at length, pointing out his feeling that
while Dunn had adequate qualifications and had done a
good job as outreach counselor, Doran had superior
qualifications and experience and had done an excellent
job as residential counselor. Geyer ended the meeting by
indicating her final decision was to lay Doran off. At
some point in the conversation, she informed Tardani
that Doran and Cathy Hoff had pressured Tardani to do
things that did not facilitate a smooth merger and that
Doran had some manipulative tendencies.
E. The Layoffs
On January 6, 1982, Geyer and Tardani met with
Doran in the latter's office. Geyer informed the employ-
ee that the budget cut necessitated laying her off effec-
tive January 21. Doran became hysterical and could
recall little of what happened. While Geyer claims she
told Doran they were going to a live-in arrangement and
she offered the live-in position to Doran, the employee
and, Tardani recall that no such offer was made; that in-
stead she was offered relief staff work."
It is undisputed that Bobby Thompson, a paraprofes-
sional counselor who was also employed at Webster
House, was informed on January 6 that he was being laid
off as of January 22 for economic reasons. The record
further reveals he was offered and accepted the live-in
attendant position created about the time he and Doran
were informed they were being laid off.
When they were informed of their layoffs on January
6, both Doran and Thompson were given letters indicat-
ing the reason for the action. Geyer indicated in such let-
ters that each had been a valuable employee and that Re-
spondent could be counted on to give an excellent refer-
ence.
F. Post-termination Events
By memorandum dated January 8, 1982, Vicki Dunn
was informed by Geyer, inter alia, that effective January
1 her salary was increased to $6.75 per hour and that her
duties would change to include more time in Muskegon.7
Shortly thereafter, on January 28, Tardani informed
Wood, who supervised outreach services in Newaygo
County, by letter that due to budget cuts Dunn would be
spending less time in outreach counties. Thereafter,
Dunn, spent approximately 1 day a week in each of the
outreach counties for approximately 3 months. Thereaf-
ter, she spent almost all of her time in Muskegon. Even-
tually the outreach contract was given to another pro-
vider because Respondent was not performing adequate-
ly.
8 As Tardani was not employed by Respondent at the time of the hear-
ing and he was an extremely persuasive witness, I credit his testimony
when it conflicts with that of Geyer who has an obvious interest in the
outcome of this case.
' G.C. Exh. 21. The record reveals that even though she had been em-
ployed after Doran, Dunn was hired at a higher hourly rate than Doran
received.
In February 1982, Sue Ashby replaced Tardani as the
project coordinator at Webster House and Tardani was
demoted to the position of casework supervisor. In April
1982, Ashby was to be assigned other duties and on
April 21 she interviewed Tardani who had applied for
the project coordinator position. Tardani testified with-
out contradiction that during the interview Ashby asked
him what he would like to do if he obtained the position.
When he indicated he would like to rehire Doran, Ashby
told him Doran was not a team player and in Ashby's
mind Doran had cut her own throat. The next day, April
22, Geyer interviewed Tardani. Tardani testified that
when Geyer asked him which individuals in which ca-
pacities he would use if selected as a program coordina-
tor, he informed her he would keep the current staff and
consider rehiring Doran, at least part-time. Geyer told
him that was out of the question, and made further com-
ments to the effect that Doran as well as Cathy Hoff did
not fit the team approach and were negative influences.
0. Accrediting Evidence Offered to Show Doran's
Excellence
To bolster his claim that Doran was an excellent em-
ployee who was more highly qualified to perform the
Webster House work than Vicki Dunn, the General
Counsel placed a resume prepared by Doran and two
employee evaluations prepared by Tardani during the
period Doran was employed by Respondent in evi-
dence. s The resume reveals, inter alia; that Doran ob-
tained a B.S. degree in sociology in 1974; that she was a
juvenile case worker from January 1973 until May 1974;
that she was a youth home director from January to
May 1974; that 'she was a child care worker at a youth
home from September 1975 to March 1977; that she was
a court screener working with the court, prosecutor, and
public defender in Lowell, Massachusetts, from August
to December 1974; and that she was a research assistant
from January to April 1975. In brief, the employee eval-
uations prepared by Tardani on June 24, 1981, and Janu-
ary 4, 1982, respectively, reveal that Doran was given
"Better than Average Performance" or "Outstanding
Performance" ratings in all categories in both reviews.
The single exception was that she was given an "Aver-
age Performance" rating in the June evaluation on re-
sponsibility.
Analysis and Conclusions
A threshold issue is whether Doran was engaged in
protected concerted activity when she contacted the
Wage and Hour Division and subsequently contacted
Geyer concerning the holiday matter.
It is well established that the conduct of an individual
employee may constitute "concerted activity" for pur-
poses of Section 8(a)(1). Alleluia Cushion Co., 221 NLRB
999 (1975); Air Surrey Corp., 229 NLRB 1064 (1977). Ex-
pounding on the issue in ARO, Inc. v. NLRB, 596 F.2d
713, 718 (1979), the Sixth Circuit stated:
8 See G.C. Exhs. 27, 29, and 30.
EVERY WOMAN'S PLACE 419
For an individual claim or complaint to amount to
concerted action under the Act- it must not have
been made solely on behalf of an individual employ-
ee, but it must be made on behalf of other employ-
ees or at least be made with the object ' of inducing
or preparing for group action and have some argu-
able basis in the collective bargaining agreement.
Here, the factual situation is one in which practically
all the Webster House employees voiced concern during
meetings with their supervisor over the policies and pro-
cedures to be followed by Respondent after the merger.
Employees Cathy Hoff, Cathee Doran , and Vicki Dunn
specifically inquired what the policy on holidays and
compensatory , time would be and, although he attempted
to obtain answers for their inquiries , Supervisor Tardani
was unable to do so . It was in the above context that
Doran individually contacted the Wage and Hour Divi-
sion and thereafter Geyer on November 9.
Although Respondent argues that Doran acted individ-
ually and solely for her own benefit, the record reveals
that after Geyer investigated the matter she caused Re-
spondent's written policies and procedures to be amend-
ed to indicate that salaried employees who worked on
holidays recognized by Respondent would receive 2
compensatory days for each holiday worked and that
professional employees were exempt from the overtime
provisions of, the Fair Labor Standards Act.
In the circumstances described, I find that Doran's ac-
tions reflected a commonality of purpose meant to inure
to the mutual aid and benefit of the entire staff of Web-
ster House. Indeed, Respondent seemingly recognized
this by deciding , after Doran had contacted the Wage
and Hour Division and Geyer, to clarify its holiday
policy by amending its policies and procedures. I find
that Doran engaged in protected concerted activity
when she telephoned the Wage and Hour Division and
subsequently briefed Geyer on'the matter on November
9, 1981.
The more difficult issue in this - case is whether Re-
spondent discharged Doran because of her November 9
activity, or Whether, as it contends, she was discharged
for economic reasons.
In Wright Line, 251 NLRB 1083 , 1089 (1980), the
Board indicated the causation test to be employed in dis-
charge cases - involving alleged violations of Section
8(a)(1) or (3) as follows:
First, we shall require , that the General Counsel
make a prima facie showing sufficient to support the
inference that protected conduct was a "motivating
factor" in the employer 's decision . Once this is es-
tablished, the burden will shift to the employer to
demonstrate that the same: action would have taken
place even in the absence of the protected conduct.
I find, without hestitation , that the General Counsel
adduced sufficient facts in the, instant case to support an
inference that Doran's protected activities were a "moti-
vating factor" in Respondent's decision to terminate the
employee. Thus, the record clearly reveals that: (1)
Geyer exhibited marked animosity towards Doran be-
cause she questioned Respondent's holiday , policy in
early,-November; (2) Doran was a senior employee at
Webster House and was shown to have been exceptional-
ly well qualified to perform work required by both the
residential and the outreach contracts ; (3) Geyer was
shown to have stated immediately before Doran was ter-
minated that she would have been terminated "on the
spot" if she had engaged in protected conduct in a non-
merger situation ; and (4) in April 1982, Geyer rejected a
suggestion that Doran be rehired stating it was "out of
the question" because she and Cathy Hoff (who also in-
quired concerning EWP's holiday policy) were negative
influences (on Tardani). The factors described compel an
inference that Doran's November 9 actions were a "mo-
tivating factor" in the decision to terminate her.
Turning to Respondent 's defenses, I note that they
consist, in main, of bare assertions , which are uncorro-
borated in any respect. The first contention is that
Doran's November 9 activity was unprotected . My find-
ings, supra, resolve this matter adversely to Respond-
ent's. The remaining defenses are that Respondent's
policy is to lay off persons who are performing work re-
lated to the contacts that are cut; that Vicki Dunn was
retained because of her valuable contacts with people in
Oceana and Newaygo counties; and that Geyer deter-
mined that Tardani and Senna could accomplish the nec-
essary counseling work required at Webster House.
These defenses are discussed individually below.
With respect to Geyer's claim that she customarily
counters cuts in the funds for specific programs or con-
tracts by laying off employees engaged in the perform-
ance of such contracts, I note that this is a bare claim
unsupported by any evidence whatsoever. Although the
record suggests that EWP had experienced other cuts in
its budget around the same time the Department of
Social Services cut its Webster, House residential, con-
tract by 20 percent, Geyer made no mention of person-
nel layoffs, which were effectuated in other programs,
that were made to permit Respondent to operate under
reduced budget conditions . To the contrary, she testified
that such situations were handled , in part, by posting all
jobs available and permitting employees to bid on them.
In the circumstances , I am unwilling to attach significant
weight to , Geyer's bare assertion that Respondent's
normal policy is to lay off'employees who perform work
under contracts that are cut.
Similarly, Geyer's claim- that Dunn rather than Doran
was retained because her contacts in Oceana and
Newaygo Counties were -valuable ' is a bare assertion un-
supported by any evidence. As noted by the General
Counsel in brief, the record reveals that the Department
of 'Social Services notified, providers at the time Re-
spondent's, residential contract was cut that the supervi-
sor of the outreach contracts had agreed the providers
could devote less time to outreach contracts. Viewing
Tardani's letter to that department that indicates Re-
spondent intended to devote less effort to the Oceana
and Newaygo outreach contracts with that record evi-
dence that reveals that, Respondent caused Dunn to
spend so little time in the named counties during 1982
that the contract was awarded to another provider, I
420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conclude that Geyer was not as concerned with the out-
reach contracts and-Dunn's contracts as she claims.
Finally, although Geyer claimed that she decided prior
to Doran's termination that Senna and Tardani could ac-
complish the necessary counseling at Webster House
after Doran was gone, the record clearly reveals that, in
fact, Dunn was required to spend the vast majority of
her time counseling at Webster House after Doran left.
Thus, it appears that by terminating Doran, Respondent
chose to use a less qualified employee who was paid
more to do the job previously performed by alleged dis-
criminatee Doran:
In sum, the record evidence in this case fails to per-
suade me that Respondent would have selected Doran
for layoff in January 1982 if she had not engaged in the
protected activity described, supra. I find 'Respondent
has failed to rebut the General Counsel's prima facie
showing that Respondent selected Doran for termination
for discriminatory reasons. Accordingly, I fmd, as al-
leged, that by terminating Doran on January 21, 1982,
Respondent violated Section 8(a)(1) of the Act.
CONCLUSIONS OF LAW
1. Every Woman's Place, Inc. is an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
2. By terminating Cathee Doran because she engaged
in protected concerted activities, Respondent violated
Section 8(a)(l) of the Act.
3. The aforesaid unfair labor practice affects commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it be or-
dered to cease and desist therefrom and take certain af-
firmative action designed to effectuate the purposes of
the Act.
Having found that Respondent discharged Cathee
Doran in violation of Section 8(a)(1), I shall recommend
that Respondent reinstate Cathee Doran to her former
job or, if such job no longer exists, to a substantially
equivalent position, without prejudice to her seniority or
other rights and privileges previously enjoyed, and I
shall recommend that Respondent make Doran whole
for any loss of earnings she may have suffered because of
the discrimination practiced against her by payment to
her of a sum equal to what she normally would have
earned from the date of her discharge on January 21,
1982, to' the date Respondent offers her reinstatement,
less her net earnings during that period. Backpay shall be
computed in the manner set forth in F. W. Woolworth
Co., 90 NLRB 289 (1950), with interest as prescribed in
Florida Steel Corp., 231 NLRB 651 (1977). See generally
Isis Plumbing Co., 138 NLRB 716 (1962).
' On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed9
9 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations , the findings , conclusions , and recommended
Order shall, as provided in Sec 102.48 of the Rules, be adopted by the
ORDER
The Respondent, Every Woman's Place, Inc., Muske-
gon, Michigan, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against
any employee for the purpose of discouraging employees
from engaging in protected concerted activity.
(b) In any like or related manner interfering with, re-
straining , or coercing employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer Cathee Doran immediate and full reinstate-
ment to her former position of employment or, if that
job no longer exists, to a substantially equivalent posi-
tion, without prejudice to her seniority and other rights
and privileges previously enjoyed.
(b) Make whole employee Cathee Doran for any losses
of pay she may have suffered by reason of the discrimi-
nation agianst her in the manner set forth above in the
remedy section.
(c) Remove from its files any reference to the layoff or
termination of Cathee Doran on January 21, 1982, and
notify her in writing that this has been done and that evi-
dence of this unlawful termination will not be used as a
basis for future personnel actions against her.
(d) Preserve and, on request,, make available to the
Board or its agents,' for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary or useful to the analysis of the amount
of backpay due under the terms of this Order.
(e) Post at its, place of business in Muskegon, Michi-
gan, copies of the attached notice marked "Appendix." 1
Copies of the notice, on forms provided by the Regional
Director for Region 7, after being signed by the Re-
spondent's authorized representative, shall be posted by
the Respondent immediately 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 Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material.
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps Respondent
has taken to comply.
Board and all objections to them shall be deemed waived for all pur-
poses.
10 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."
EVERY WOMAN 'S PLACE 421
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT discharge or otherwise discriminate
against employees ' for the purpose of discouraging them
from engaging in protected concerted activity.
WE-WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed yogi by Section 7 of the Act.
WE WILL offer Cathee Doran immediate and full rein-
statement to her former job or ,, if that job no longer
exists, to a substantially equivalent position, without prej-
udice to her seniority or other rights , and WE WILL make
her whole for any loss of pay she may have suffered by
reason of our discrimination against her , with interest.
WE WILL remove from our files any references to the
discharge of Cathee Doran on January 21, 1982, and WE
WILL notify her that this has been done ' and tht evidence
of this unlawful discharge will not be used as a basis for
future personnel actions against her.