Lane, Jules V., D.D.S., P.C.

National Labor Relations Board - Board Decisions

Jun 11, 1982

262 N.L.R.B. 118 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Jules V. Lane, D.D.S., P.C. and Carol Goldkuhle.
Case 29-CA-8372
June 11, 1982
DECISION AND ORDER
BY MEMBERS JENKINS, ZIMMERMAN, AND
HUNTER
On December 23, 1981, Administrative Law
Judge D. Barry Morris issued the attached Deci-
sion in this proceeding. Thereafter, Respondent and
the General Counsel filed exceptions and support-
ing briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
I Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
In the absence of exceptions, we adopt, pro forma, the Administrative
Law Judge's finding that Respondent did not unlawfully solicit employ-
ees to repudiate the UnLion.
Although the Administrative Law Judge did not specifically find that
Respondent's asserted reason for Gcldkuhle's discharge was a pretext, it
is clear from his analysis that he implicitly made such a finding. Thus, he
completely rejected Respondent's contention that it discharged Gold-
kuhle pursuant to its decision to phase out its dental hygienist program,
and he concluded that Goldkuhle's discharge was prompted by her union
activities. Where, as here, the asserted reason for a discharge is found to
be a pretext, Member Jenkins would not apply the analysis set forth in
Wright Line. a Division of Wright Line. Inc., 251 NLRB 1083 (1980). In
Member Jenkins' view, that analysis is applicable only in cases involving
mixed motives, where a genuine lawful reason and a genuine unlawful
reason exist, and it is misleading to apply it in cases like this one.
In finding that Respondent had knowledge of Goldkuhle's union activi-
ties, the Administrative Law Judge relied on the "small plant" doctrine
and cited Borin Packing Co., Inc., 208 NLRB 280, 287, fn. 31 (1974). We
note initially that Borin Packing Co. does not support the Administrative
Law Judge's finding, since in that case the Board reversed a determina-
tion that the employer had unlawfully discharged two employees. The
Administrative Law Judge there had relied on the small-plant doctrine,
but the Board merely assumed, arguendo, that the doctrine was applica-
ble, while finding the evidence insufficient to establish an unlawful
motive. 208 NLRB at 281. In any event, we find it unnecessary to rely
on the small-plant doctrine in the instant case. Where there is no direct
evidence of knowledge, that doctrine permits the Board to infer from the
size of the plant and other circumstances that an employer was aware of
an employee's union activities. See, e.g., Florida Cities Water Company,
247 NLRB 755, 756 (1980); Marsden Electric Company, Inc., 226 NLRB
1097, 1099 (1976); Wiese Plow Welding Co., Inc., 123 NLRB 616, 617-618
(1959). Here, there is substantial direct evidence that Respondent was
aware of Goldkuhle's union activities. Supervisor Eleanor Romano and
Dr. Lawrence Scharf, the director of the Commack facility, both ad-
mitted to Goldkuhle that she was discharged because of such activities,
and it is established that Romano said to Goldkuhle shortly after the
posting of the recognition agreement, "I understand you started a union."
In view of the circumstances, we find that reliance on the small-plant
doctrine is unnecessary to establish Respondent's knowledge.
262 NLRB No. 13
Judge and to adopt his recommended Order,2 as
modified herein.
The Administrative Law Judge found, and we
agree, that Dr. James Parks acted as Respondent's
agent when he unlawfully announced, 2 weeks
after Respondent's recognition of the Union at the
Commack facility, that employees at that facility
no longer would be permitted to smoke or eat in
the lounge or to make personal telephone calls.
However, the Administrative Law Judge also
found that Parks was not acting as Respondent's
agent during his encounters with Commack em-
ployees Carol Goldkuhle and Teresa Harsh, and he
therefore concluded that Parks' conduct with re-
spect to those employees did not violate Section
8(a)(1). In agreement with the General Counsel's
exceptions, we find, for the reasons below, that
Parks' conduct was attributable to Respondent and
was violative of the Act.
The record discloses that, soon after the recogni-
tion of the Union, Respondent requested that
dental hygienist Goldkuhle become an independent
contractor. Parks subsequently advised Goldkuhle
to contact another dental hygienist to whom the
same request had been made. Goldkuhle called the
employee at home, and they discussed the conse-
quences of becoming an independent contractor as
well as the recent decision of the employees at the
Commack facility to become unionized. On the fol-
lowing day Parks confronted Goldkuhle and said,
"I understand you discussed the union activities on
the premises and I have no choice but to tell Dr.
Lane to have you fired." Goldkuhle acknowledged
having spoken to the other employee about the
Union, but asserted that they were both at home at
the time of the conversation. Upon hearing that the
conversation did not take place on Respondent's
premises, Parks responded, "Oh, well in that case
there's nothing I can do about that."
The Administrative Law Judge found that,
shortly after the Union was recognized, Parks ap-
proached employee Teresa Harsh and asked her
who started the Union and why the employees
wanted the Union. Several days later, Parks asked
her the same question again and commented that
choosing the Union was a "bad move" and that the
employees "should never have gotten involved."
The Administrative Law Judge found that Parks
was not acting as Respondent's agent when he en-
gaged in the above conduct. He found that Parks'
function was to "help straighten out the office,"
and that such a function would not encompass in-
terrogating or threatening employees.
2 In accordance with his dissent in Olympic Medical Corporation, 250
NLRB 146 (1980), Member Jenkins would award interest on the backpay
due based on the formula set forth therein.
lls
JULES V. LANE, D.D.S., P.C.
After a careful review of the record, we find
that the Administrative Law Judge erred in failing
to attribute Parks' conduct to Respondent. In as-
certaining Parks' agency status, we must determine
whether, under all of the circumstances, employees
would reasonably believe that Parks was reflecting
company policy and speaking and acting for man-
agement by questioning Harsh and by telling Gold-
kuhle that he would attempt to have her fired. s
The circumstances to be considered included
Parks' position and duties 4 as well as the context in
which his conduct occurred. 5
In the instant case, as found by the Administra-
tive Law Judge, Parks was hired as an assistant to
Dr. Bruce Safran, Respondent's dental director.
Parks traveled among Respondent's various offices,
serving as Safran's "eyes and ears" and ensuring
that employees adhered to the guidelines estab-
lished by the main office. As the Administrative
Law Judge also found, one of Parks' functions was
to "help straighten out" the Commack facility.
Parks' responsibilities, therefore, served to set him
apart from other employees and to leave no doubt
that he enjoyed a distinct position.
In examining the context of Parks' conduct, we
note that his encounters with Goldkuhle and Harsh
were consistent with other unfair labor practices
committed by Respondent. Thus, it is noteworthy
that Parks' questioning of Harsh was similar in sub-
stance to the other unlawful interrogations by Re-
spondent's supervisors, who questioned employees
as to what the Union was doing and why they had
selected the Union. 6 The other interrogations oc-
curred shortly after the Union was recognized and,
therefore, coincided in time with Parks' inquiries.
Further, Parks' threat to discharge Goldkuhle
proved to be an accurate prediction of the conse-
quences of engaging in union activities, in view of
Goldkuhle's unlawful discharge only a few weeks
later." These circumstances strongly suggest a con-
nection between Respondent's unlawful activity
and Parks' conduct. Finally, we find it especially
significant that Parks directly participated in other
unlawful activity by announcing, in the presence of
Supervisors Romano and Scharf, that employees no
longer would be permitted to smoke or eat in the
8 Community Cash Stores Inc., 238 NLRB 265 (1978); Aircraft Plating
Company. Inc., 213 NLRB 664 (1974).
4 American Lumber Sales. Inc. 229 NLRB 414, 420 (1977); Samuel
Liefer and Harry Ostreicher, a Copartnership. d/b/a River Manor Health
Related Facility, 224 NLRB 227, 235 (1976); Aircraft Plating Company,
Inc., supra.
Win. Chalson & Co., Inc., 252 NLRR 25, 34 (1980); Community Cash
Stres, Inc. supra;. American Lumber Sales. Inc.. supra at 420; Aircraft Plat-
ing Company, Inc., supra.
' See Wnm Chalson & Ca. Inc.. supra at 34; American Lumber Sales,
Inc, sNpra at 420, Aircraft Plating Company, Inc, supra.
7 See Community Cash Stores. Inc., supra at 266; Aircraft Plating Com-
pany, Inc.. supra
lounge or to make personal telephone calls. We
agree with the Administrative Law Judge that em-
ployees would reasonably believe that Parks, in
making the announcement with Respondent's rep-
resentatives present, was reflecting company policy
and speaking and acting for management. Howev-
er, in view of Parks' duties and the context of his
conduct, we see no reason to draw a distinction be-
tween that incident and his encounters with Gold-
kuhle and Harsh. We therefore find that employees
could reasonably believe that Parks was reflecting
company policy and speaking and acting for man-
agement when he threatened Goldkuhle with dis-
charge and interrogated Harsh about the Union.
Consequently, we further find that Respondent vio-
lated Section 8(a)(1) in connection with those inci-
dents.
AMENDED CONCLUSIONS OF LAW
Insert the following as paragraph 3 and renum-
ber the subsequent paragraphs accordingly:
"3. By threatening to discharge Carol Goldkuhle
if she engaged in union activities, Respondent has
violated Section 8(a)(l) of the Act."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Jules V. Lane, D.D.S., P.C., Commack, New
York, its officers, agents, successors, and assigns,
shall take the action set forth in the said recom-
mended Order, as so modified:
1. Insert the following as paragraph l(a) and re-
letter the subsequent paragraphs accordingly:
"(a) Threatening to discharge employees if they
engage in union activities."
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE WILL NOT threaten to discharge employ-
ees if they engage in union activities.
119
0DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT interrogate employees con-
cerning their union activities.
WE WILL NOT impose stricter work rules be-
cause of employees having engaged in union
activities.
WE WILL NOT discriminatorily discharge
employees for activities protected by Section 7
of the National Labor Relations Act.
WE WILL. NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed them by
Section 7 of the National Labor Relations Act.
WE WILL offer Carol Goldkuhle full and im-
mediate reinstatement to her former position
or, if that position no longer exists, to a sub-
stantially equivalent position, without loss of
seniority or other rights or privileges previous-
ly enjoyed, and WE Wil.l make her whole for
any loss of earnings she may have suffered by
reason of the discrimination against her, with
intere ct.
JULES V. LANE, D.D.S., P.C.
DECISION
S'IATEMENT OF THE CASE
D. BARRY MORRIS, Administrative Law Judge: This
case was heard before me in New York City on July 13,
29, 30, and 31, 1981. The charge was filed on October
10, 1980, and amended on October 29, 1980. The com-
plaint was issued on December 10, 1980, alleging that
Jules V. Lane, D.D.S., P.C. (Respondent), violated
Section 8(a)(l) and (3) of the National Labor Relations
Act, as amended (the Act). Respondent filed an answer
denying the commission of the alleged unfair labor prac-
tices.
The parties were given full opportunity to participate,
produce evidence, examine and cross-examine witnesses,
argue orally, and file briefs. A brief was filed by the
General Counsel I
Upon the entire record of the case, including my ob-
servation of the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent, a New York corporation, with its princi-
pal office and place of business in Hicksville, New York,
is engaged in providing dental and related services.
During the 12 months preceding the issuance of the com-
plaint, Respondent's gross revenues were in excess of
$250,000. During the same period Respondent purchased,
directly and indirectly, and caused to be delivered to its
New York facilities, goods valued in excess of S50,000,
from suppliers located outside the State of New York.
Respondent admits that it is engaged in commerce within
l In addition, Respondent submitted a letter dated September 25, 1981,
which I have duly considered.
the meaning of Section 2(6) and (7) of the Act, and I so
find.
11. THE IAROR ORGANIZATION INVOLVED
Local 144, Hotel, Hospital, Nursing Home and Allied
Health Services Union, Division 100, SEIU, AFL-CIO
(Local 144), is a labor organization within the meaning
of Section 2(5) of the Act.
111. THE ALLEGED UNFAIR [ABOR PRACTICES
A. The Issues
The amended complaint 2 alleges that Respondent vio-
lated Section 8(a)(1) and (3) of the Act by discharging its
employee, Carol Goldkuhle, because of her union activi-
ties,; by interrogating its employees concerning their
union activities; by imposing stricter work rules; and by
soliciting employees to repudiate Local 144. Respondent
denied the allegations.
The issues are: (1) Did Respondent discharge its em-
ployee, Carol Goldkuhle, because of her union activities;
(2) did Respondent interrogate its employees concerning
their union activities; (3) did Respondent impose stricter
work rules upon its employees; and (4) Did Respondent
solicit employees to repudiate Local 144.
B. The Facis
1. Background
Carol Goldkuhle began her employment with Re-
spondent as a dental hygienist in June 1979. She worked
in Respondent's Commack office which employed ap-
proximately 16 persons other than the dentists and the
office manager. In March 19803 she discussed with a
representative of Local 144 the possibility of bringing a
union into the Commack office. A meeting was set up
during the second week of March at the Candlelight
Diner in Commack, which was attended by approximate-
ly 8 to 10 employees. At the meeting, the Union was dis-
cussed, authorization cards were distributed, and Gold-
kuhle was selected as the union representative. During
the next several days Goldkuhle distributed authorization
cards to those employees who had not attended the
meeting.
On April 7 Respondent entered into a recognition
agreement, recognizing Local 144 as the exclusive bar-
gaining representative of the employees at the Commack
facility. On the same day, a copy of the recognition
agreement was posted on the bulletin board of the facili-
ty.
2. Discharge of Goldkuhle
Several days after the posting of the agreement, Gold-
kuhle was called by Dr. Bruce Safran, dental director of
Respondent. Goldkuhle credibly testified that Safran
asked her if she would "sign on as an independent con-
tractor." Goldkuhle told Safran that she questioned the
2 At the hearing General the Counsel moved to amend the complaint.
The motion was granted.
s All dates refer to 1980 unless otherwise specified.
120
JULES V. LANE, D.D.S., P.C.
legality of that arrangement and she would "have to get
some advice on it and get back to him." About a week
later, the office manager, Eleanor Romano, told Gold-
kuhle that Safran was waiting for her answer and that
she should telephone him. Goldkuhle testified that she
called Safran and told him:
I thought about this. I wasn't sure of the legality of
it. I want to be considered part of the team here,
and at this point we had a union and that he should
have been talking with my rep and not to me, and
he just said, "Well, we'll see about that."
On April 21, several days after that conversation,
Safran telephoned Goldkuhle at home, on her day off,
and told her "Carol, we don't want you to come back to
work anymore."
Approximately 10 minutes after the conversation with
Safran, Romano called. Goldkuhle credibly testified that
Romano said the following: "Carol, Dr. Safran told the
girls he was firing you. I'm very sorry. I want you to
know I had nothing to do with it." And she said, "You
know, it was because of the union activities."
Several days later Goldkuhle went to the Commack
office and spoke with Dr. Lawrence Scharf, the director
of the office. Goldkuhle credibly testified that she told
Scharf "I think [the discharge is] because of the union."
Scharf replied, "So do I."
Respondent contends that Goldkuhle was discharged
because Respondent was in the process of phasing out its
dental hygienists. However, the record does not support
Respondent's contention. Safran conceded that Gold-
kuhle was the only hygienist who was fired. While sev-
eral hygienists in some of Respondent's other offices left
their positions, this was done on their own accord. In ad-
dition, while Goldkuhle was initially employed on a part-
time basis, on February 26, less than 2 months prior to
her discharge, she was asked to work full time. Theresa
DeGolyer credibly testified that Goldkuhle was main-
taining a heavy schedule and had approximately 4 weeks'
advance bookings at the time of her discharge. With re-
spect to Goldkuhle being asked to become an independ-
ent contractor, Safran testified that he discussed this with
her in June 1979, at the time of her initial interview.
While this may be the case, there is nothing in the
record to indicate the matter was again discussed with
Goldkuhle prior to Safran's call to her, soon after the
posting of the recognition agreement.
3. Interrogation
Goldkuhle credibly testified that after the recognition
agreement was posted, Romano said to her, "I under-
stand you started a union. Will you be getting more
benefits?" DeGolyer similarly testified that 2 days after
the recognition agreement was posted Romano said to
her, "Come on Terri, tell me about this Union." DeGo-
lyer also testified that during the third week of May
Scharf said to her and two other employees, "Girls, I
don't know why you started this whole union business."
Teresa Harsh corroborated this testimony. She credibly
testified that Scharf asked her who started the Union.
Similarly, Linda Mistretta credibly testified that soon
after the recognition agreement was posted Scharf asked
her "what's going on with the Union," and "why is the
Union coming in." Mistretta testified that several weeks
later Scharf again asked the same questions. Scharf con-
ceded that on two different occasions he asked Mistretta
"what was going on" with the Union.
4. Announcement of stricter work rules by Parks
Safran testified that Dr. James Parks was his assistant
who was hired in December 1979. It was Parks' function
to travel to the various offices, observe office procedures
and "see that the guidelines that we set down from the
main office were being adhered to." Safran testified that
Parks functioned as his "eyes and ears." Goldkuhle testi-
fied that Parks was "Safran's representative in the Com-
mack office."
DeGolyer credibly testified that 2 weeks after the rec-
ognition agreement was posted, a meeting of approxi-
mately eight employees took place with Parks, in the
presence of Romano and Scharf. Parks announced at this
meeting that there was to be no more smoking or eating
in the lounge. DeGolyer also credibly testified that Parks
told the employees that there were to be no more per-
sonal phone calls. Harsh corroborated this testimony.
DeGolyer credibly testified that these instructions had
not been given before the recognition agreement was
posted. Similarly, Harsh credibly testified that these were
"new rules that were instituted" after the recognition
agreement was posted.
Safran conceded that he instructed Parks to enforce
the regulation that personal phone calls were to be made
on the phone downstairs and that there was to be no
eating or smoking in the patient areas. While Safran testi-
fied that these were standing regulations, I credit the tes-
timony of DeGolyer and Harsh that the regulations, if
indeed there had been any, had not been previously en-
forced. The enforcement came only after the posting of
the recognition agreement.
5. Solicitation to repudiate Local 144
The amended complaint alleges that Respondent solic-
ited its employees to repudiate Local 144. In this regard,
Safran credibly testified as follows:
Terry [Harsh] came to me in October of 1980 and
told me that she was dissatified with the union, that
she didn't know what they were doing for them and
she said she had called up a couple of times and left
messages and no one ever called her back, and she
didn't know what was going on with the union,
whether they were coming in or not.... She
asked me how she could get out of it. If there was a
way [she] could get out of the union.
Safran testified that he told Harsh that he did not
know but that he would ask his attorney. Safran testified
that he then asked his attorney and subsequently supplied
Harsh with the number of the "Information Officer" of
the NLRB. Harsh, for the most part, corroborated Sa-
fran's testimony. She testified that she told Safran that
she was "disgusted with the Union" anq that Safran gave
121
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
her the telephone number of the "Information Officer."
Harsh testified that she spoke to the "Information Offi-
cer" who told her that the way to get out of the Union
was to send a letter signed by the employees stating that
they did not want the Union to represent them. Harsh
testified that such a letter was never sent and Safran
never approached her and asked her why this was not
done.
6. Other allegations
The amended complaint also alleges that Respondent
threatened to discharge an employee. In this connection
Goldkuhle testified that after she was asked to become
an independent contractor, Parks told her to call the
dental hygienist in the Hicksville office and discuss the
matter with her. After having such a discussion with the
other hygienist, Goldkuhle credibly testified that Parks
confronted her and stated: "I understand you discussed
the union activities on the premises and I have no choice
but to tell Dr. Lane to have you fired." After telling
Parks that she spoke to the other hygienist from her
home, Parks responded, "Oh, well in that case there's
nothing I can do about that."
In her brief, counsel for the General Counsel points to
an incident involving Parks as another example of al-
leged unlawful interrogation. Harsh credibly testified
that Parks asked her "who's idea was it to start the union
and why we wanted the union." Harsh further credibly
testified that several days later Parks again questioned
her concerning the Union and "he suggested that it was
a bad move, that we should never have gotten in-
volved."
C. Discussion and Analysis
1. Supervisory status
At the hearing, Respondent stipulated that Safran and
Scharf are supervisors within the meaning of Section
2(11) of the Act. However, Respondent contends that
neither Romano nor Parks is a supervisor within the
meaning of the Act.
a. Romano
Goldkuhle testified that Eleanor Romano had the posi-
tion of office manager and in that capacity she hired em-
ployees, she fired her daughter Tina Goldkuhle, and as-
signed work. DeGolyer similarly testified that Romano
hired employees and assigned work. Harsh testified that
it was Romano who discharged Tina Goldkuhle, and
that Romano assigned work and disciplined employees.
The parties stipulated that Romano was paid $250 per
week whereas the salaries of the other employees ranged
from $117.80 to $175 per week. Based on the evidence in
the record it is clear that Romano is a supervisor within
the meaning of Section 2(11) of the Act.
b. Parks
The amended complaint alleges that Parks was either a
supervisor or agent of Respondent. Concerning the alle-
gation that he was a supervisor, I find that the record
does not sustain a finding that Parks was a supervisor
within the meaning of the Act. DeGolyer testified that
she did not consider Parks a "supervisor." Harsh testified
that Parks did not hire employees, fire them, or assign
work. Safran testified that Parks did not hire or fire em-
ployees. Accordingly, I find that Parks was not a super-
visor within the meaning of Section 2(11) of the Act.
With respect to the question of whether Parks was an
"agent" of Respondent for certain purposes, the Board
has stated the criteria to follow in determining agency.
In Community Cash Stores, Inc., 238 NLRB 265 (1978),
the Board stated:
[W]e rely on the substantial evidence in the record
indicating that Clowney had the apparent authority
to act for Respondent in its antiunion campaign.
The critical issue in making this determination is
whether under all the circumstances the employees
would reasonably believe Clowney was reflecting
company policy and speaking and acting for man-
agement.
Harsh testified that Parks was in the Commack office
"to help straighten out the office." As discussed earlier,
Safran testified that Parks functioned as his "eyes and
ears" and that it was Parks' assignment to see that guide-
lines that were set down in the main office were "being
adhered to."
I find that Parks' announcement that there was to be
no more smoking or eating in the lounge, and no more
personal phone calls, was in his capacity as "agent" of
Respondent. This announcement was made in the pres-
ence of Romano and Scharf, both supervisors. Parks was
regarded as "Safran's representative in the Commack
office." In addition, Safran conceded that he instructed
Parks to enforce the regulation that personal phone calls
were to be made only on the phone downstairs and that
there was to be no eating or smoking in the patient areas.
Accordingly, with respect to any announcements that
Parks made concerning office procedures, I believe that
the employees could reasonably believe that Parks was
"reflecting company policy and speaking and acting for
management." See also Wm. Chalson & Co., Inc., 252
NLRB 25, 33-34 (1980).
Concerning Parks' threat to discharge Goldkuhle and
his questioning Harsh concerning her union activities, I
find that he was acting independently and not as an
"agent" of Respondent. As previously noted, it was
Harsh's understanding that Parks was sent to "help
straighten out the office." While this could well have en-
compassed such matters as eating, smoking, and personal
phone calls, it would not in the normal course include
threats to discharge or questioning as to union activities.
In this respect, I do not believe that the evidence in the
record indicates that Parks had the "apparent authority
to act for Respondent." 4
4 Accordingly, the allegations that Respondent violated the Act
through Parks' threatening to discharge an employee and through Parks'
interrogation of an employee concerning her union activities are dia-
missed.
122
JULES V. LANE, D.D.S., P.C.
2. Discharge of Goldkuhle
Three weeks after the posting of the recognition
agreement, Goldkuhle was discharged. Ten minutes after
Goldkuhle received the telephone call from Safran dis-
charging her, she received another telephone call from
the office manager, Romano, who conceded that the dis-
charge was because of Goldkuhle's union activities. Like-
wise, several days later, when Goldkuhle returned to the
Commack office, Scharf, the director of the office,
agreed with Goldkuhle's assessment that the discharge
was because of her union activities. Goldkuhle was the
union representative in the organizing campaign. It was
she who distributed authorization cards to those employ-
ees who had not attended the meeting at the Candlelight
Diner. It is clear that Respondent knew of Goldkuhle's
activities. Soon after the recognition agreement was
posted, Romano said to Goldkuhle, "I understand you
started a union." In any event, inasmuch as there were
only approximately 16 employees in the Commack facili-
ty, the Board's "small plant" doctrine would apply. Borin
Packing Co., Inc., 208 NLRB 280, 287 fn. 31 (1974).
The timing of the discharge is closely related to the
posting of the recognition agreement, the discharge
having come just 3 weeks after the posting of the agree-
ment. Concerning animus and the reason for the dis-
charge, both Scharf and Romano conceded that Gold-
kuhle was discharged because of her union activities.
The Board has recently restated the test to be applied
in so-called mixed-motive cases. Wright Line, a Division
of Wright Line, Inc., 251 NLRB 1083 (1980). The Board
requires 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 deci-
sion. Once this is established, the burden shifts to the em-
ployer to demonstrate that the "same action would have
taken place even in the absence of the protected con-
duct." I believe that the record demonstrates that the
General Counsel has made a prima facie showing that
union activity was a motivating factor in the discharge.
Respondent contends, however, that it was in the
process of phasing out its dental hygienists. As discussed
earlier, Goldkuhle was the only hygienist to have been
fired. In addition, less than 2 months prior to her dis-
charge, her position was changed from part time to full
time. Furthermore, the record indicates that she was
maintaining a heavy schedule and had approximately 4
weeks' bookings at the time of her discharge. While in
the long run Respondent may have wished to entirely
phase out its dental hygienist program, it is clear that
Goldkuhle's discharge on April 21 was not because Re-
spondent had then concluded that it wished no longer to
have a dental hygienist at the Commack facility. Instead,
the discharge on that particular day was because of
Goldkuhle's union activities.
Accordingly, I find that Respondent has not demon-
strated that the "same action would have taken place
even in the absence of the protected conduct." I con-
clude, therefore, that by discharging Goldkuhle for her
union activities Respondent has violated Section 8(aX3)
and (1) of the Act.
3. Interrogation
I have credited DeGolyer's testimony that 2 davs after
the recognition agreement was posted, Romano said to
her, "Come on Terri, tell me about this union." I have
also credited DeGolyer's and Harsh's testimony that
during the third week of May Scharf said to them,
"Girls, I don't know why you started this whole union
business." Furthermore, I have credited Mistretta's testi-
mony that soon after the recognition agreement was
posted Scharf asked her "what's going on with the
Union," and "why is the Union coming in." I find that
these questions, by supervisory personnel, constituted co-
ercive interrogation, in violation of Section 8(a)(1) of the
Act. See Williamsport Plumbing and Heating Co., Inc.,
253 NLRB 883 (1980); Americana Health Care Corpora-
tion of Ohio d/b/a Barberton Manor, 252 NLRB 380
(1980).
4. Stricter work rules
I have found that soon after the recognition agreement
was posted, employees were instructed that there was to
be no more smoking or eating in the lounge and no more
personal phone calls. While there may have been stand-
ing regulations with respect to these matters, the regula-
tions had not been previously enforced. Enforcement of
these rules came only after the posting of the recognition
agreement.
In Larsen Supply Co., Inc., 251 NLRB 1642 (1980), the
Board stated:
It is well settled that an employer violates . . . the
Act when it initiates changes in employees' working
conditions in order to retaliate against them for se-
lecting a union as their bargaining representative.
I find that the imposition of the stricter work rules
was in retaliation for the employees' selecting the Union
as their representative and came soon after the posting of
the recognition agreement. This constitutes a violation of
Section 8(a)(l) and (3) of the Act.
5. Solicitation to repudiate the union
The amended complaint alleges that Respondent solic-
ited employees to repudiate Local 144. In this regard the
record demonstrates that Harsh approached Safran and
told him that she was "dissatisfied with the Union" and
asked if there was a way she "could get out of the
Union." Safran told Harsh that he did not know but that
he would consult his attorney. After consulting his attor-
ney, he supplied Harsh with the telephone number of the
NLRB's "Information Officer." Safran never inquired as
to what steps, if any, Harsh took with respect to her re-
quest.
Section 8(a)(l) of the Act provides that it is an unfair
labor practice for an employer to interfere with the
rights guaranteed to employees in Section 7. Section 7
gives employees the right to select or reject a bargaining
representative. The question is whether furnishing the
telephone number of the NLRB's "Information Officer,"
where an employee stated that she was "dissatisfied with
123
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union" and asked "how she could get out of it,"
constitutes interference violative of the Act.
In Tartan Marine Company, 247 NLRB 646 (1980), the
company posted a "Notice To Employees" which in-
formed them that they had the right to cancel their
union cards and have them returned. The notice further
advised the employees that "if they decided to get their
cards back, they should write a letter to the Union with
a copy to the Board asking that their cards be cancelled
and returned to them." The notice set forth the address
of the union representative and Region 11 of the Board.
The Board affirmed the Administrative Law Judge's de-
cision, which stated, in pertinent part (at 656):
[T]he mere publication to employees of the address-
es of the Union and Region II is not, in my opin-
ion, unlawful encouragement or solicitation of em-
ployees to cancel their union cards, given their
right to do so, and the employer's right to so state.
I believe the instant proceeding is analogous to the sit-
uation in Tartan Marine. Respondent was told by an em-
ployee that she was dissatisfied with the Union and asked
how she could get out of it. Respondent merely gave the
employee the telephone number of the NLRB Regional
Office. I do not believe that this constituted interference
with the employee's Section 7 rights.
In support of her position, counsel for the General
Counsel has cited Cumberland Shoe Co., 160 NLRB 1256
(1966). I believe the facts in that case, however, are
clearly distinguishable from the instant proceeding. In
Cumberland Shoe the company took an active role in
trying to get the employees to withdraw from the Union.
As the Board stated (at 1259):
We think that Respondent violated Section 8(a)(1)
when Bransford went beyond his legal advice and
assisted employees to the considerable extent that
he did in attempting to withdraw from the Union.
Once an employee entered Bransford's office,
Bransford literally took command of the situation
and shepherded the employee through the process
of drafting and mailing the withdrawal letter, and
then informing the employee that a copy of the
letter would be kept in his personnel file. Inherent
in the situation was, in our view, an influence exert-
ed by Bransford upon such employees to complete
the process of withdrawing from the Union which
interfered with the rights of the employees not to
do so if, at any point, they chose not to complete
the process.
Accordingly, I believe that Respondent did not inter-
fere with the employees' Section 7 rights and this allega-
tion is dismissed.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By discharging Carol Goldkuhle for activities pro-
tected by the Act, Respondent has engaged in an unfair
labor practice within the meaning of Section 8(aX3) and
(1) of the Act.
4. By interrogating employees concerning their union
activities, Respondent has violated Section 8(a)(1) of the
Act.
5. By enforcing stricter work rules because of the em-
ployees' union activities, Respondent has violated
Section 8(aX3) and (1) of the Act.
6. The aforesaid unfair labor practices constitute unfair
labor practices affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
7. Respondent did not violate the Act in any other
manner alleged in the complaint.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I find it necessary to order Re-
spondent to cease and desist therefrom and to take af-
firmative action designed to effectuate the policies of the
Act.
Respondent, having discharged Carol Goldkuhle in
violation of the Act, I find it necessary to order Re-
spondent to offer her full reinstatement to her former po-
sition or, if such position no longer exists, to a substan-
tially equivalent position, without prejudice to her se-
niority or other rights and privileges, and make her
whole for any loss of earnings she may have suffered
from the time of her termination to the date of Respond-
ent's offer of reinstatement.
Backpay shall be computed in accordance with the
formula approved in F. W. Woolworth Company, 90
NLRB 289 (1950), with interest computed in the manner
prescribed in Florida Steel Corporation, 231 NLRB 651
(1977).5
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended.
ORDER6
The Respondent, Jules V. Lane, D.D.S., P.C., Com-
mack, New York, its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from:
(a) Interrogating employees concerning their union ac-
tivities.
(b) Changing employees' working conditions because
of their union activities.
(c) Discharging employees for activities protected by
Section 7 of the Act.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights under Section 7 of the Act.
I See, generally, Isis Plumbing d Heating Co., 138 NLRB 716, 717-721
(1962).
5 In the event no exceptions are filed as provided in Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the find-
ings, conclusions, and recommended Order herein shall, as provided in
Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
124
JULES V. LANE, D.D.S., P.C.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer Carol Goldkuhle immediate and full rein-
statement to her former position or, if such position no
longer exists, to a substantially equivalent position, with-
out prejudice to her seniority or other rights and privi-
leges, and make her whole for any loss of earnings, in
the manner set forth in the section above entitled "The
Remedy."
(b) Post at its facility in Commack, New York, copies
of the attached notice marked "Appendix."7 Copies of
In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
the notice, on forms provided by the Regional Director
for Region 29, after being duly signed by Respondent's
authorized representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained by
it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by Respondent to ensure that the notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 29, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
IT IS FUR'IHER ORDERED that those allegations of the
complaint as to which no violations have been found are
hereby dismissed.
125