Joseph De Rario, Dmd, P.A.

National Labor Relations Board - Board Decisions

Apr 10, 1987

283 N.L.R.B. 592 (N.L.R.B. 1987)

592 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Joseph De Rario , DMD, P.A. and Sandra Falcone.
Case 22-CA-14083
10 April 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 14 October 1986 Administrative Law Judge
James F. Morton issued the ' attached decision. The
Respondent filed exceptions and a supporting brief
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member, panel.
The Board has considered the decision and the
record in light of the exceptions and brief -and has
decided to affirm the judge's rulings , findings,' and
conclusions as modified and to adopt the recom-
mended Order.
The Respondent, Joseph De Rario, DMD, P.A.,
operates a dental office located in Oakhurst, New
Jersey. De Rario employs between 12 and 15
people. Sandra Falcone began working for the, Re-
spondent as a hygiene assistant in May 1985 and
performed the regular duties of a hygienist includ-
ing preparing the room, taking and mounting X-
rays, and discussing home care with the patients. In
August 1985 Falcone received an above-average
performance rating . At or about that time she also
assumed two additional duties. The first was ad-
ministering temporal mandibular joint or "TMJ"
therapy, a form of facial and neck massage, to pa-
tients. The second was acting as a periodontal as-
sistant to Dr. Chang, which entailed preparing the
room for the periodontist and assisting him during
the procedures.
On Thursday, 10 October 1985,2 one of the den-
tists, Dr. Trufolo, held a meeting with the employ-
ees to express his displeasure at some of the work-
related problems which had occurred that day.
Sandy Falcone and a coworker, Lisa Manrodt,
were sitting together on the same chair. During the
meeting Manrodt interrupted Dr. Trufolo several
times and disagreed with his comments. The Re-
spondent's office manager, Vickie Devaney, was
present at the meeting and, when it ended, she told
Manrodt and Falcone that she wanted to see them
in her office. Devaney then criticized both Man-
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.
a The judge inadvertently states that this meeting was held on Friday,
11 October 1985.
rodt and Falcone for what she considered to be
their childish behavior during the Trufolo meeting.
She stated that during the meeting they were gig-
gling and punching each other and that she was
very embarrassed by their behavior. She also repri-
manded both - Manrodt and Falcone because the
two women had allegedly been spending too much
time together socializing during working hours
which was interfering with the performance of
their jobs.
Falcone and Manrodt became very upset at what
they perceived as unjust criticism and tried to dis-
cuss the matter quietly with Devaney. However,
Devaney became increasingly distraught, began to
yell, and slammed her hands on her desk. Falcone
testified that she decided to "just agree with her
because she's not going to listen to anything that
we have to say." At that point Falcone and Man-
rodt left the room.
During the weekend following the 10 October
meeting, Falcone and Manrodt discussed their
meeting with Devaney and composed a summary
of their account of the meeting . Falcone also tele-
phoned three coworkers during the weekend and
explained to each of them the unfair treatment she
and Manrodt believed they had received from De-
vaney, at the 10 October meeting with her. One of
the employees Falcone called, Donna White, also
expressed her, dissatisfaction at the unfair treatment
she was receiving from Devaney at work. During
these telephone conversations, Falcone discussed
with each of the three employees she called Man-
rodt's and her view that the employees should get
overtime pay when they worked during their own
time and that they should not have to pay anything
toward the cost of their uniforms.3 Falcone was
told by these employees that she should go to see
Devaney on Monday. On Monday, 14 October
1985,4 the three employees whom Falcone had
telephoned told Devaney, before Falcone arrived
for work, that Falcone had telephoned them over
the weekend and discussed various matters includ-
ing the 10 October meeting Devaney had held with
Falcone and Manrodt, overtime pay, and the cost
of uniforms. These employees also told Devaney
that they had told Falcone to talk directly to De-
vaney on Monday morning.
On the morning of 14 October 1985, Falcone
asked to speak with Devaney, and they met shortly
thereafter in private. Several items were discussed
a De Ratio's employees pay one-half the cost of their required work
uniforms and, not infrequently, are expected to work during their own
time, i e., during lunch hours and after the normal workday, without re-
ceiving additional compensation
4 The judge erroneously refers to the date of this meeting as 15 Octo-
ber 1985 in his decision
283 NLRB No. 86
JOSEPH DE RARIO; DMD, P.A. '
at that meeting . One of the first items discussed
was that Falcone and Manrodt were very upset
about the 10 October. 1985 meeting they had with
Devaney because they felt that Devaney was false-
ly accusing them of spending too much worktime
together. Falcone then told Devaney that she was
becoming ill during the times she assisted the peri-
odontist because there was "a lot of blood" during
some of the procedures and asked if she could be
relieved of these duties to concentrate onr areas in
which she believed she performed better : Devaney
told her that she could not hire another assistant to
perform the work but that Falcone could ask an-
other dental assistant to switch duties with her.
Falcone also brought up the subject of her TMJ
therapy duties. Falcone stated that while she en-
joyed the work, she felt that she was entitled to
some additional type of compensation for perform-
ing, the therapy as it was not in her job duties when
she was hired. At that point, Devaney threatened
to take the TMJ duties away from Falcone, who
objected. Falcone then brought up the subject of
payment for overtime, to which Devaney respond-
ed by banging her hand on the desk and saying
that she had no legal obligation to pay overtime as
she had fought that matter out. Falcone stated that
"by law De Rario is required to pay us for a hun-
dred per cent of our overtime hours" and "a hun-
dred percent for our uniforms." According to the
credited testimony, it was at that point that De-
vaney stated: "That's it, Sandy. You're out of hand,
you have an attitude problem, I can't deal with you
anymore . . . you can. have two weeks or stay till
the end of the day." When Falcone asked Devaney
if that meant she was fired, Devaney responded
that it did.
At that point Falcone walked out of the office
and went, home. She returned to the office around
noon and asked Devaney for her job back. De-
vaney denied the request and told Falcone that she
would not rehire her "after what took place over
the weekend and because of all the threats she
made this morning."
Later that day Falcone then went to see De
Rario who called Devaney into his office to hear
her account. Devaney told De Rario that she fired
Falcone "number one . . . because of [her] atti-
tude. Number two, because [she] refused to do pe-
riodontal assisting . Number three . . because
[she] demanded to be paid for TMJ therapy.
Number four . . . because . . . [she] demanded to
be paid for overtime hours. Number five, because
[she] demanded to be paid for your uniforms." Fal-
cone told De Rario that she never refused to per-
form periodontal assistant duties or demanded to be
paid for TMJ work. De Ratio upheld the decision
593
to fire Falcone. De Rario did not testify at the
hearing. _
For the following reasons, we find that Sandra
Falcone was discharged as a result of her concert-
ed activities protected by Section 7 of the Act. In
Meyers 11,5 the Board reaffirmed its adoption of-the
following definition of "concerted- activities" in
Meyers 1:6 "In general, to find an employee's activ-
ity to be-'concerted,' we shall require that it be en-
gaged , in with or on the authority of other employ-
ees, and not solely by_'amf on behalf of the employ-
ee himself.'' Moreover, once activity is found to
be concerted, an 8(a)(1) violation will be found if,
in addition, the employer knew of the concerted
nature of the activity, the activity was protected by
the Act, and the adverse employment action at
issue was motivated by the protected, concerted
activity.8 In the present case, Falcone clearly acted
on a collective basis "with or on the authority of
other employees." As the judge found in his deci-
sion, Falcone received authorization from the em-
ployees to discuss various complaints including
overtime pay and uniform allowances. The em-
ployees whom Falcone called over the weekend
told her to talk to Devaney on Monday. Therefore
her activities were concerted.
Furthermore, the Respondent was made aware
of the concerted nature of Falcone's actions. On 14
October 1986 prior to Devaney's meeting with Fal-
cone, the three employees to whom Falcone spoke
over the weekend told Devaney that they had been
called by Falcone over the weekend. They specifi-
cally informed her that Falcone had discussed the
10 October meeting Devaney had with Manrodt
and Falcone, the Respondent's failure to pay over-
time, and its failure to reimburse employees for the
full cost of their uniforms. These employees told
Devaney that they had advised Falcone to talk to
Devaney about these matters on Monday. Devaney
also admitted at the hearing that Falcone told her
at the 14 October meeting that "she [Falcone] was
the spokesperson for everyone because they were
afraid to talk with me." Falcon's concerted activi-
ties are clearly protected under the Act since the
subjects the employees discussed constitute terms
and conditions of employment.9
We also find that the General Counsel satisfied
the burden of proving by a preponderance of the
evidence that the Respondent's discharge of Fal-
5 281 NLRB 882, 884 (1986).
6 268 NLRB 493 (1984).
7 Id. at 497 (1984).
s Id.
e Member Johansen, who did not participate in Meyers, agrees that Fal-
con's activities were concerted , and that the Employer knew of that ac-
tivity.
594 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
cone was based on Falcone's protected concerted
activities. In NLRB v. Transportation Management
Corp., 462 U.S. 393 (1983), the Supreme Court af-
firmed the test enunciated by the Board in Wright
Line10 for determining whether an employee was
discharged because of the exercise of Section 7
rights. Under Wright Line the General Counsel,
under Section -10(c) of the Act, has the burden of
establishing a prima facie case that the employee's
protected conduct was a substantial or motivating
factor in the employee's discharge or other adverse
action taken by the employer. Once the General
Counsel satisfies this burden, the employer can
avoid liability under the Act by proving by a pre-
ponderance of the evidence an affirmative defense
that it would have taken the same action even if
the unlawful motives;had not existed.
In the instant case, the General Counsel estab-
lished that at least three, reasons Devaney gave for
firing Falcone-Falcone's attitude," her demand
for payment of overtime compensation, and for
payment of uniform allowances for the employ-
ees-involved protected concerted activities under
the Act. At that point, the Respondent could only
avoid being held in violation of the Act by proving
by a preponderance of the evidence that even
absent the improper motives, it would have dis-
charged Falcone for legitimate reasons . While the
Respondent proffered additional reasons for firing
Falcone-that Falcone refused to assist the peri-
odontist and that she demanded to be paid the full
amount for performing TMJ therapy-the judge
discredited , these reasons , and found them to be
"pretextual." i 2 Thus, the only' credited reasons the
Respondent gave for firing' Falcone were based on
her protected concerted activities:13 The Respond-
10 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F .2d 899 (1st Cir.
1981), cert. denied 455 U .S. 989 (1982), approved in NLRB v. Transporta-
tion Management Corp., 462 U.S. 393 (1983).
11 Devaney's. first reason given for firing Falcone was her attitude
problem It appears that Devaney was referring to Falcone 's attitude in
voicing- her' group concerns regarding payment for employees ' overtime
and uniform allowances . Thus, , as noted above , after Falcone told her
that the Respondent was required "by law" to pay "for a hundred per
cent of our overtime hours" and "a hundred percent for our uniforms,"
Devaney responded : "You're out of hand, you have an attitude problem,
I can't deal with you anymore . you can have two weeks or stay till
the end of the day."
12 The judge credited Falcon's testimony that she only requested to
be paid some compensation for performance of TMJ therapy, and that
she did not demand that the Respondent pay her the full amount he re-
ceived for the therapy sessions as Devaney testified. Since Falcone was
making this demand on her own behalf and had not sought support from
any other employees, her demand for additional compensation was not
concerted activity under the Act. However, it is clear that the Respond-
ent has not established that it would have discharged Falcone solely for
making this request.
13 As we note above , Devaney in citing "attitude" appeared to be re-
ferring to Falcon 's complaints with respect to overtime and uniform al-
lowances. However, even if "attitude" included matters related to work
ent therefore failed to prove that even absent un-
lawful motivations, it would have discharged Fal-
cone. Accordingly, we find that Falcone was un-
lawfully terminated for engaging in protected con-
certed activities in violation of Section 8(a)(1) of
the Act.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Joseph De
Rario, DMD, P.A., Oakhurst, New Jersey, its offi-
cers, agents, successors , and assigns , shall take the
action set forth in the Order, except that the at-
tached notice is substituted for that of the adminis-
trative law judge.
performance, we find the Respondent has not met its burden to establish
that these matters would have resulted in Falcone 's discharge even in the
absence of her protected concerted activities.
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 discharge any of you for engaging
in concerted activities for your mutual aid and pro-
tection.
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 Sandra Falcone immediate and
full reinstatement to her former job or, if, that job
no longer exists, to a substantially equivalent posi-
tion, without prejudice to her former seniority or
any other rights and privileges previously enjoyed
and WE WILL make her whole for any loss of earn!
ings and other benefits resulting from her dis-'
charge, less any net interim earnings, plus interest.
WE WILL expunge from our files any reference
to her disciplinary discharge and WE WILL notify
her that this has been done and that evidence of
this unlawful discharge WILL not be used, as a basis
for future personnel actions against her.
JOSEPH DE RARIO, DMD, P.A.
JOSEPH DE RARIO , DMD, P.A. 595
Gary A. Carlson, Esq., for the General Counsel.
Laurence M. McHeffey, Esq. (Hanlon, McHeffey, Herzfield
& Rubin), of Edison, New Jersey, for the Respondent.
DECISION
STATEMENT OF THE CASE
JAMES F. MORTON , Administrative Law Judge. The
complaint alleges that Joseph De Rario, DMD, PA (Re-
spondent) discharged Sandra Falcone in violation of Sec-
tion 8(a)(1) of the National Labor Relations Act. The
General Counsel contends that Respondent discharged
Falcone because of her role as employee spokesperson in
seeking overtime pay and other employee benefits. Re-
spondent asserts that she was discharged because she
stated that she would refuse to perform assigned tasks.
I heard this case on 18 , and 24 April 1986 in Newark,
New Jersey . On the entire record , including my observa-
tion of the demeanor of the witnesses , and after due con-
sideration of the briefs filed by the General -Counsel and
Respondent , I make the following
FINDINGS OF FACT
1. JURISDICTION
The pleadings , as amended , establish and I find that
Respondent is engaged in the practice of dentistry and
that its operations meet the Board 's jurisdictional stand-
ard for health care institutions.
times, apparently to disagree with some of his comments.
Respondent's office manager, Vickie Devaney, was
present at the meeting and, when it ended , she told Man-
rodt and Falcone that she wanted to see them in her
office.
Devaney told them in no uncertain terms that she was
displeased with Manrodt's interruptions and with Fal-
con's actions which Devaney perceived as having en-
couraged Manrodt . Falcone and Manrodt were very
upset over what they perceived as unjust criticism, in-
temperate and bordering on calumny.
B. Falcon 's Activities
Over the weekend, 'Falcone and Manrodt composed a
summary of their account of the meeting . In Addition,
Falcone telephoned several coworkers . She told each of
the meeting with Devaney and also discussed with each
Manrodt's and her view that the employees should get
overtime pay when they work during their own time and
that they should not have to pay anything toward the
cost of their uniforms . She was told by those employees
that she should go to see Devaney on Monday.
Three of the employees, whom Falcone had tele-
phoned, told Devaney on Monday , 15 October, before
Falcone arrived for work , that Falcone had telephoned
them over the wekend and talked to them about the 11
October meeting , about overtime pay, and the cost of
work uniforms.
II. THE ALLEGED' UNFAIR LABOR PRACTICES
A. Background
Respondent has about 12 employees at its dental office
in Oakhurst, New Jersey . Sandra Falcone began work-
ing there as a hygiene assistant in May 1985 . Respondent
arranged to have her learn the technique in administering
a form of neck and facial massage (TMJ therapy), and in
late August 1985, that function was added to her duties.
About the same time, she began to train as a periodontal
assistant but she was hardly enamoured of that job be-
cause the sight of blood upset her. Also in August, she
received an above-average performance review. She was
told, however,that she would not receive a raise until
her next evaluation as she had been hired at a salary
higher than she previously earned.
As noted below , the employees discussed overtime
pay and the money they spent on their uniforms." They
contributed ' to the cost of their work uniforms and, not
infrequently, are expected to work during their own
time, ( i.e., lunch hour, at the end of the normal work-
day) without receiving additional , compensation therefor.
Falcone and her coworkers , in August, discussed among
themselves their view that Respondent should pay the
full cost of uniforms and also overtime pay, but they did
not then broach either of these subjects with Respond-
ent.
On Friday, 11 October 1985 , one of the dentists held a
meeting of the employees to express his displeasure at
the overall level of work performance . One of the em-
ployees, Lisa Manrodt, who was seated alongside Fal-
cone during this meeting, interrogated the dentist several
C. Falcone 's discharge
When Falcone arrived at work later on 15 ' October,
she asked to speak with Devaney . They talked in private.
Falcon's account is as follows . Falcone told her that she
gets sick' to her stomach when she sees a lot of blood
during periodontal procedures and asked if she could be
relieved of those duties to concentrate on areas to which
she believed she did better . Devaney responded in effect
that she would get used to the periodontal work but that
it would take time . Falcone stated that she really felt sick
doing that work . Devaney suggested that Falcone talk to
one of the other assistants to see if , they would switch
with her and she told Falcone that she would not hire
another assistant . Falcone then brought up the subject of
TMJ therapy . She pointed out to Devaney that she was
happy with that work as she treated the patients by her-
self. She pointed out to Devaney that Respondent
charged those patients $20 for each of those visits and
she said she was entitled to some additional compensa-
tion for TMJ work as that was not in her job duties
when she was hired . Devaney's response was to tell her
that she' would be relieved of TMJ ' duties . Falcone
became "very, very upset" at Devaney's taking away her
TMJ function as she "didn't refuse to do anything." Fal-
cone then "brought up the issue" of overtime pay. De-
vaney responded by banging her hand on the desk and
she informed Falcone that she has no legal obligation to
pay overtime as she has fought that matter out . Falcone
stated that the employees are entitled to be paid for all
overtime work and also that Devaney "is supposed to
pay us a hundred percent for our uniforms ." Devaney re-
plied, "That's it Sandy . You're out of hand, you have an
596 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
attitude problem. I can't deal with you anymore . . . you
can have two weeks or stay till the end of the day." Fal-
cone asked if Devaney was firing her. Devaney respond-
ed that she was. Falcone left and returned later that day
to appeal to Respondent's president, Dr. De Rario. He
called Devaney in to hear her account. Devaney told De
Rario that she fired Falcone "number one, because of
[her] attitude . . . number two, because [she] refused to
do periodontal assisting . , .. number three because [she]
demanded to be paid for TMJ therapy . . . number four
... because she demanded to be paid for overtime .. .
number five because [she] demanded to be paid for your
uniforms." Falcone told De Rario that she never refused
to perform periodontal assisting or demanded to be paid
for TMJ work. De Rario excused Devaney, who left. De
Rario then told Falcone that he has full faith in Devaney
and he left. Devaney returned and accused Falcone of
having undermined her by calling employees over the
weekend. Falcone said she called them to try to work
something out. Devaney kept "yelling and yelling" so
Falcone left.
Devaney was, called by General Counsel to testify pur-
suant to Rule 611(c) of the Federal Rules of Evidence."
She acknowledged that she had no intention of discharg-
ing Falcone at the end of the meeting she had with Man-
rbdt and Falcone on 10 October and that on 14 October
several employees had told her that Falcone had dis-
cussed with them her dissatisfaction with -Respondent's
policy as to overtime hours and reimbursement for work
uniforms. Devaney testified that she then spoke with Fal-
cone and that Falcone told her that she, Falcone, was
the spokesperson for the "front desk people" (i.e., the re-
ceptionists and other clerical employees) as they were
afraid; to confront Devaney themselves." Devaney's ini-
tial responses to the General Counsel's questions indicat-
ed that Falcone brought up the overtime and uniform re-
imbursement matters after she had been discharged. Her
later response indicates that Falcone's references to those
matters- preceded her discharge. The chronology set out
in her pretrial affidavit was quite detailed and reveals
that Falcone's references to employee complaints about
overtime pay and uniform reimbursement took place
before Devaney discharged her. Devaney testified further
that she discharged Falconein that interim because Fal-
cone stated, she could not perform periodontal duties, and
would not work for Respondent unless Respondent paid
her $20 an hour for her TMJ work, paid her overtime
pay, and reimburse her 100 percent for the cost of, her
uniforms. As to the meeting later that day with Dr. De
Rario and Falcone, Devaney testified that De Rario
called her into the meeting and asked her if she ever had
made any personal comments about Falcone, not related
to, her work, When she denied doing so, De Rario told
Falcone that Devaney's decision would stand and he left,
according to Devaney.
Dr. De Rario- did, not testify.
In- rebuttal, General Counsel recalled Falcone who tes-
tified without contradiction that Respondent bills $20 an
hour for the TMJ work she performs. She denied ever
telling Devaney she refused to do periodontal work or
that she demanded $20-an-hour payment for TMJ work.
D. Analysis
I credit Falcone's testimony. Devaney's account would
have me find that Falcone set forth a multipoint ultima-
tum on 14 October which gave Devaney no choice but
to discharge Falcone." I find it highly improbable that a
person of Falcone's demeanor would even think of pre-
senting Devaney with any ultimatum ." Devaney's ac-
count seems so unlikely that it is understandable why Dr.
De Rario did not appear as a witness to offer corrobora-
tion of it.' It is even more unlikely that Falcone would
even suggest, let alone demand, that Respondent turn
over to her its full payment for her TMJ work. Respond-
ent contends that Falcone's testimony supports its con-
tention that she had refused -to perform periodontal
work. The credited evidence discloses , however, that
Falcone had asked Devaney to relieve her of that func-
tion, and that Devaney instead offered Falcone the op-
portunity to obtain a substitute whenever she was sched-
uled to -assist rthe periodontist and that, when Devaney
told her on 14 October she would take away her TMJ
assignments , Falcone protested that she had never said
she refused any assignment . In short, there is no proba-
tive evidence to support Respondent's assertion that Fal-
cone had refused to perform periodontal duties.
In Dayton Typographical Service, 273 NLRB 1205
(1984), the Board held that an employee was engaged in
protected concerted activity in protesting the employer's,
policy regarding overtime compensation, that the em-
ployer there was aware of that activity, and that the
reason given for the employee's discharge-was a pretext.
The Board thus found that the discharge violated Sec-
tion 8(a)(1) of the Act. 'As the instant case parallels that
holding, L find that Respondent discharged Falcone, be-
cause of her concerted protected activities and it thereby
violated Section 8(a)(1).
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of ' Section 2(2), (6), and (7)- of the
Act.
2. Respondent -has committed an unfair labor practice
in violation of Section 8(a)(1) of the Act by having-dis-
charged employee Sandra Falcone because she engaged
in activities protected by Section 7 of the Act.
THE REMEDY
Respondent having unlawfully discharged Sandra Fal-
cone, I find it necessary to order it to offer her reinstate-
ment and make her whole for lost earnings and,other
benefits, computed on a quarterly basis from date of dis-
charge to date of proper offer of reinstatement , less any
net interim earnings, in accordance with F. W. Woolworth
Co., 90 NLRB 289 (1950), plus interest as computed in
Florida Steel Corp., 231 NLRB' 651 (1977). See generally
Isis Plumbing Co., 138 NLRB 716 (1962).
Although the General Counsel had, stated in the com-
plaint in this case that she seeks -as part of the remedy a
visitatorial clause, the General Counsel did not pursue
that request in her brief. I infer that such relief is no
longer .deemed warranted.
JOSEPH DE RARIO, DMD, RA. 597
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed'
ORDER
The Respondent, Joseph De Rario, DMD, P.A., Oak-
hurst, New Jersey, its officers, agents, successors , and as-
signs, shall
1. Cease and desist from
(a) Discharging any of its employees because they en-
gaged in protected concerted activities for their mutual
aid and protection.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.'
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer Sandra Falcone immediate and, full reinstate-
ment to her former job or, if that job no longer exists, to
a substantially equivalent position, without prejudice to
her seniority or any other rights or privileges previously
enjoyed, and make her whole for any loss of earnings
and other benefits she may have suffered as a result of
the discrimination against her, in the manner set forth,in
the- remedy section of the decision.
(b) 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 to anlayze the amount of backpay due
under the terms of this Order.
(c) Remove from its files any reference to the dis-
charge of Sandra Falcone, and notify her in writing that
this has been done and that evidence of this unlawful dis-
charge will not be used as a basis for future personnel
actions against her.
(d) Post at its office in Oakhurst, New Jersey, copies
of the attached notice marked "Appendix."2 Copies of
the notice, on forms provided by the Regional Director
for Region 22, after being signed by the Respondent's
authorized representative, shall be posted by the Re-
spondent 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.
(e) Notify the Regional Director in writing within 20
days from the date of this Order, what steps the Re-
spondent has aken to comply.
1 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
Board and all objections to them shall be deemed waived for all pur-
poses.
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 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."