Montgomery County MH/MR Emergency Service

National Labor Relations Board - Board Decisions

Dec 13, 1978

239 N.L.R.B. 821 (N.L.R.B. 1978)

MONTGOMERY COUNTY MH/MR EMERGENCY SERVICE
Montgomery County MH/MR Emergency Service
and District 1199C, National Union of Hospital and
Health Care Employees, RWDSU, AFL-CIO.
Case 4-CA-8937
December 13, 1978
DECISION AND ORDER
BY MEMBERS PFNELIO. MURPHY. AND TRIFESDAIF.
On July 26, 1978, Administrative Law Judge Rob-
ert E. Mullin issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel filed
a brief in answer to Respondent's exceptions.
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, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
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 and hereby
orders that the Respondent, Montgomery county
MH/MR Emergency Service, Norristown, Pennsyl-
vania, its officers, agents, successors, and assigns,
shall take the action set forth in the said recom-
mended Order.
I Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to oser-
rule an Administrative Law Judge's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect Standard Dr, Wall Productsr Inc., 91
NLRB 544 (1950). enfd. 188 F.2d 362 (3d Cir. 1951) We have carefullk
examined the record and find no basis for reversing his findings.
DECISION
STATEMENT OF THE CASE
ROBERT E MULLIN. Administrative Law Judge: This
case i was heard on January 30, February 1, and February
14, 1978, in Philadelphia, Pennsylvania, pursuant to a
IAttorney Gafni served as counsel of record for the Charging Parts
throughout the hearing. Subsequent thereto, a blief for the Union was suh-
mitted by the firm of Goldstein & Gloss, Philadelphia. Pennslvania.
charge, duly filed and served,2 and a complaint issued on
November I i. 1977. The complaint presents questions as to
whether the Respondent violated Section 8(a)(1) and (3) of
the National Labor Relations Act, as amended. In its an-
swer duly filed, the Respondent conceded certain facts
with respect to its business operations. but it denied all
allegations that it had committed any unfair labor prac-
tices.
At the hearing, all parties were represented by counsel.
All were given full opportunity to examine and cross-exam-
ine witnesses and to file briefs. The parties waived oral
argument. On May 1., 1978, briefs were received from all
parties. On that same date. Respondent filed a motion for
permission to file a reply brief. This was opposed by the
General Counsel. After due consideration, Respondent's
motion was granted and the parties were given until June I.
1978, to file reply briefs. Leatherwood Drilling Companr.,
180 NLRB 893 (1970). On the latter date, such a brief was
submitted by the Respondent.
Upon the entire record in the case, including the briefs
of counsel, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACt
I THE BUSINESS OF THE RESPONDENT
Respondent, a nonprofit Pennsylvania corporation, is
engaged in the business of providing emergency services
and emergency care on its premises in Norristown, Penn-
sylvania, for mentally disabled persons. During the year
preceding issuance of the complaint, a representative pe-
nod, Respondent received gross revenues in excess of
$250,000 for services rendered: dunng that same period, it
purchased and received goods and supplies valued in ex-
cess of $50,000 from suppliers located within the Common-
wealth of Pennsylvania who received these goods and sup-
plies directly from points outside the Commonwealth of
Pennsylvania. Upon the foregoing findings, Respondent
concedes, and it is now found, that Montgomery County
MH/MR Emergency Service, herein Respondent, or
MCES, is an Employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
11 THE LABOR ORGANIZATION INVOLVED
District 1199C, National Union of Hospital and Health
Care Employees, RWDSU, AFL-CIO, herein Union, is a
labor organization within the meaning of Section 2(5) of
the Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Sequence of Events
Respondent is a nonprofit corporation which provides
emergency psychiatric and other services for patients suf-
fering from drug and alcohol problems. It is located in
what is known as building 16 on the grounds of the Norris-
: 'he charge was filed on September 23. 1977.
821
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
town State Hospital in Norristown. At that location it has
24 beds where patients customarily remain only for a short
period while awaiting referral to other facilities for more
extended hospitalization and treatment. It has approxi-
mately 80 ernployees. At all times material, its medical ex-
cutive director has been Dr. Angelo M. Zosa, and its ad-
ministrator has been Dr. Naomi R. Dank.
In the spring of 1977 3 the Union began an organiza-
tional campaign among Respondent's employees. During
the month of May, Respondent laid off a substantial num-
ber of its staff. Included within that group were Howard I.
Stabler, Gregory White, and Richard Tynan. General
Counsel alleges that the layoffs of these last named were
discriminatorily motivated. This allegation is denied by
Respondent in its entirety. To the facts in connection with
the foregoing, as well as related issues, we will now turn.
B. The Respondent's Fiscal Problems
Respondent receives over 90 percent of its revenue from
payments made by Blue Cross and other health insurers
which provide coverage for the patients. Other sources of
income are grants from the Federal Government, Mont-
gomery County, and various foundations. Since 1973, Re-
spondent has received an annual grant from the Law En-
forcement Assistance Administration (herein LEAA).
Initially, this was awarded Respondent to finance an out-
reach ambulance service for the Norristown community.
Although the money for this grant is provided by the Fed-
eral Government, the grant is administered through the
Governor's Justice Commission of the Commonwealth of
Pennsylvania. The money for this was given to MCES as a
series of I-year grants, the first of which was made in 1973.
Initially, 10 percent of the amount was provided by Mont-
gomery County and the other 90 percent was paid through
the LEAA. In the third year, there was a 50 percent-50
percent match. In its fourth year, if it were available,
LEAA would provide 25 percent and a 75 percent match
would be provided by Montgomery County for a total of
$121,500. 4
MCES submitted its first application for the fourth year
extension of the grant in December 1976. Early in April
1977, Dr. Dank learned from various officials of the
Governor's Justice Commission that it was unlikely that
the application would be approved. In addition, during
that same month, an annual grant from the National Insti-
tute of Drug Abuse expired on April I. This grant had been
in the amount of $70,000 a year. Although it was not com-
pletely terminated, it was cut back to the sum of only $777
a month from April through December 1977. Late in the
month of April, and as a result of the ominous prospects of
a severly restricted budget, MCES began to freeze posi-
tions by not hiring replacements for employees who re-
signed and by not filling vacant positions. During the week
of April 24, MCES learned that there was practically no
prospect that there would be a fourth year continuation of
the LEAA grant. At about the same time, Respondent's
All dates herein are for 1977. unless specifically noted otherwise.
4This total is based on the credible testimony of Dr. Dank. According to
him, this amount exceeded 10 percent of the total budget for MCES in 1977
officials also found that Montgomery County would not
extend any money unless the LEAA would guarantee its
share.
On April 27, [)r. Dank reported to the MCES executive
committee that the current LEAA grant would expire on
May 31, that the Governor's Justice Commission had indi-
cated that a fourth year extension would not be granted,
and that since that Commission would not meet again until
August, severe spending restrictions would have to be im-
posed by MCES. Respondent thereupon decided to lay off
up to 12 mental health counselors, unit assistants, and tele-
phone intake workers. Respondent further decided to lay
off part-time employees first. Early in May, Dr. Dank ad-
vised the supervisors to notify employees of this action.
The first employees to be so notified, a part-time mental
health counselor and three nurses, received termination let-
ters dated May 3.
During that same week in May, Dr. Zosa and Dr. Dank
concluded that several full-time employees would also have
to be laid off. Dr. George Furse, then Respondent's clinical
coordinator, was given the responsibility for developing a
rating system by which the mental health counselors, unit
assistants, and telephone intake workers would be evaluat-
ed for layoff. Prior to that time, Respondent had a system
for periodic evaluation of these same employees pursuant
to which theirjob performances in 6 to 13 categories were
rated on a scale of I to 5. After the layoffs were completed
Respondent went back to this system. However, for
purposes of the layoff, Furse was given a free hand to de-
velop a system which, purportedly. would be more objec-
tive than the existing system for evaluating employees.
On the basis of the record, it is clear that in May 1977,
Respondent was faced with the likelihood of a severe de-
crease in its income from grants, particularly that from the
LEAA. Although, in fact, at a much later date 5 the LEAA
grant was ultimately renewed, Respondent's administra-
tion, on the basis of the facts in this record, certainly had
cause for alarm in April and May. The decision to effectu-
ate a layoff at that time was no more than a demonstration
of prudent management in the face of what appeared likely
to be a continuing budgetary problem. Whether the layoffs
were carried out in a completely nondiscriminatory man-
ner is another question which will be disposed of later
herein.
C. The Organizational Campaign
At some time in February, employees at MCES first con-
tacted the Union about an organizational campaign. Em-
ployee Richard Tynan was one of those instrumental in
making the first contact with Barbara Cable, 6 a representa-
tive of the Union. In March. Tynan organized a union
meeting for the employees on his shift. In mid-April, the
Union held a meeting for Respondent's employees at a
nearby motel at which time they voted to wear their union
buttons to work on May 6. Members of the organizing
committee also wore an additional button which identified
them as being on that committee.
In September 1977
In the transcript, this name is also spelled Kabel
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MONTGOMERY COUNTY MH/MR EMERGENCY SERVICE
Employees Charles Franz, Laura Harris, Yvonne Mayer,
Joseph Scotti, Howard Stabler, Harrone Taylor, Richard
Tynan, and Gregory White were members of the organiz-
ing committee. From time to time during the organization
drive, the members of that committee passed out union
leaflets and posted them on employee bulletin boards
throughout the plant. White was particularly active in dis-
tributing union handbills and putting them on the bulletin
boards. He also placed them in the mail boxes of all the
staff, whether employees or supervisors.
On May 9, several members of the organizing committee
attempted to meet with Dr. Zosa as he was leaving his
office. Employees within this group were Joseph Scotti,
Laura Harris, Howard Stabler, and Richard Tynan. Scot-
ti, acting as spokesman for the group, told the director that
the Union represented a majority of the employees. He
further told Zosa that he had a letter requesting recognition
and that he wanted Zosa to accept the letter and grant the
request. Zosa, however, declined to accept the letter and
dismissed their attempt to meet with him because they had
not gone through what he described as "accepted chan-
nels." 8
On May 13, Zosa invited the union organizing commit-
tee to meet with him in his office. Substantially, the entire
committee was present, as well as several other employees.
Zosa told the employees that, although he was not meeting
with them as a union organizing committee and that his
action was not to be construed as recognition of the Union,
he would listen to their complaints. The employees then
voiced a number of grievances about their working condi-
tions and Zosa promised that he would consider them. He
also told them that because of the impending loss of the
LEAA grant that layoffs would be necessary. When asked
as to the basis on which layoffs would be effected, Zosa
told those present that seniority would be one of the crite-
ria used.
Later that day, Respondent held a staff meeting at which
Zosa, Dank, and all of the supervisors were present. Ac-
cording to Dr. Dank, this was a special meeting called to
inform the staff as to the economic outlook for the coming
months. Zosa spoke to the employees present about the
necessity of a layoff, and Dr. Furse explained the job clas-
sification system he had devised for evaluating the groups
of employees who would bear the brunt of the layoff.
On May 12, employee White posted notices entitled
"You Have the Right to Organize" on all of Respondent's
bulletin boards, including those located in the first and
second floor lobbies. He also put them in all mailboxes at
the hospital. Either on that occasion or earlier, White had
posted another notice on bright orange paper which was
captioned "Attention Dr. Zosa" and in which Zosa was
taken to task for the layoff of an employee and for other
actions which the union pamphlet described as harassment
and reprisal. At the bottom of this leaflet there was a line
which read "Issued by the Montgomery County Emer-
gency Services Organizing Comm." and thereafter the
names of seven employees were listed.9
7At this point Stabler had already received notice of his layoff
The term in quotation marks is from the testimony of Richard Tynan.
I.E.. Franz. Mayer. Scotti. Taylor. Tynan. and White
Not long after the union pamphlets appeared on the lob-
by bulletin boards, most of the members of the organizing
committee were summoned to Dr. Dank's office. Accord-
ing to Dr. Dank, on the afternoon of May 12, she talked
with employees Harris. Mayer, and Taylor. Early the next
morning she talked with White and Tynan. Dank testified
that she gave substantially the same warning to both
groups. According to her, she told them that it was against
hospital policy to post anything on the bulletin boards
without first asking Dianne Martin, her administrative as-
sistant, for permission. Since that had not been done with
reference to the union leaflets, she wanted to get the name
of the individual who had broken the rule so that it would
only be necessary to discipline that one individual rather
than the whole organizing committee. She further testified
that in her conversation with Harris, Mayer, and Taylor on
May 12, none of them acknowledged any information as to
the identity of the individual who had posted the material
in question and that she kept these employees in her office
for only a very brief period.'0
Tynan testified that when he and White were in Dank's
office on the morning of May 13, the administrator told
them that if they did not disclose the identify of the person
who had posted the notices, that disciplinary action would
be taken against every member of the organizing commit-
tee whose name appeared on the pamphlet. According to
Tynan, when he asked what she meant by "disciplinary
action." she told him "administrative action," and when he
further questioned her as to what that would entail, she
told him that the type of discipline would be for the admin-
istration to decide.' Tynan further testified that both he
and White told her that they had never seen any notices on
the bulletin boards which prohibited unauthorized post-
ings. However, Tynan acknowledged that on leaving
Dank's office he saw a sign on the lobby bulletin board
which required that any notices be cleared with Dank's
administrative assistant.
Dianne Martin testified that at Dank's direction, in Oc-
tober or November 1977, she posted signs on both the first
and second floor lobby bulletin boards which read "Please
see Administrative Assistant before Posting Anything."
According to Martin, about once a week thereafter she
checked the boards to ascertain whether any unauthorized
notices had appeared.' 2 She testified that she received no
specific instructions from Dr. Dank as to the type of no-
tices which were to be allowed on the boards, and that that
decision was left largely to her judgment and discretion.
According to Martin, during the period when she was
Dank's administrative assistant,'3 she removed notices
about personal matters, want ads and garage sales, as well
as notices intended only for employees of the Norristown
t) Dank's account was credible and General Counsel offered no testi-
mony as to Dank's meeting with the employees on the afternoon of May 12
which conflicted with that given by the administrator.
IITvnan's testimon) as to the meeting with Dr. Dank on May 13 was
credible and was not in conflict with the version of this meeting to which the
administrator testified.
:1 She described the bulletin boards in question as being about 2 feet by 3
feet in size.
13 At the time of the hearing, Martin was no longer in Respondent's em-
ploy.
823
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
State Hospital which were inadvertently posted on the
MCE(S bulletin boards. Martin testified that, in substance,
her principal responsibility with respect to the bulletin
boards was to clear them of stale notices and to make sure
that other people came to her first before posting any new
item. It was also evident from her testimony that, other
than removal of notices which had been posted without
Martin's approval, no other action was ever taken against
any individual who had posted such a notice.
Martin was a credible witness. It is now found that, as
she testified, since about October or November 1977 signs
had been on the bulletin boards in question which set forth
the requirement that clearance from the administrative as-
sistant was necessary before anything could be posted
thereon.
D. The Alleged Violations of Section 8(a)(l); Findings and
Conclusions With Respect Thereto
General Counsel alleged that the Respondent violated
the Act: (I) by Dr. Dank's interrogation of White and Tyn-
an on May 13 about the identity of the individual who had
posted the union pamphlets on the bulletin boards and by
threatening disciplinary action against such employee; and
(2) by promulgating a new rule on that date requiring em-
ployees to obtain administrative approval before posting
notices on the bulletin boards. These allegations are denied
by Respondent in their entirety.
Dr. Dank's interrogation of White, Tynan, and the other
members of the organizing committee about the identity of
those who had posted the union notices was coercive and
in violation of Section 8(a)(l). Polyurethane Products Com-
pany, Inc., 168 NLRB 98, 99-100 (1967); Fremont Manufac-
turing Company, Inc., 224 NLRB 597, 604 (1976). Insofar as
indicated by the record herein, Respondent had never be-
fore disciplined any employee for posting notices on the
bulletin boards. Administrative Assistant Martin had re-
moved numerous notices to which she had not given prior
clearance, but no further action had ever been taken
against those responsible for the postings. Consequently,
Dr. Dank's threat to discipline the members of the organiz-
ing committee for having participated in the notice posting
constituted unlawful coercion and interference.
On the other hand, the record does not support General
Counsel's contention that Respondent's rule requiring
clearance of all notices by Administrative Assistant Martin
was newly promulgated on May 13. From the credible tes-
timony of Martin it is apparent that the rule had been in
effect for many months. Nevertheless, Dank's announce-
ment on May 13 that discipline would be imposed on those
who had posted the union notices without prior approval
was different from any action taken by Respondent in the
past. No evidence was offered that ever before had disci-
pline been meted out to any employee who had failed to
secure approval or clearance from Dank's administrative
assistant before posting a notice. In the past, the offending
notice had merely been removed. Respondent made no ef-
fort to establish that there was any other penalty. Nor was
any evidence proferred that on any earlier occasion Dr.
Dank had sought to discover the identity of anyone who
posted an unauthorized notice or threatened to invoke dis-
ciplinary action against an), employee for such an offense.
It is apparent from the findings set forth above, that
prior to the union campaign, Respondent had no rule or
policy on disciplining violators of the practice with respect
to use of its bulletin boards. Consequently, here, as in Med-
ley Distilling Company, Inc., 187 NLRB 84, 87 (1970), the
establishment of such a rule "for the first time at the very
birth of union activity is in itself a coercive step .... "(See
also The Wm. H. Block Company, 150 NLRB 341 (1964).
Accordingly, it is now found that Respondent further vio-
lated Section 8(a)(1) with Dr. Dank's announcement on
May 13, that the employee who posted the union notice on
the bulletin boards would be disciplined, or in the alterna-
tive, that all the employees listed on the notices as mem-
bers of the organizing committee would be disciplined.
E. The Layoffs of Gregory White, Richard Tynan, and
Howard 1. Stabler, :indings and Conclusions With Respect
Thereto
1. The issue as to company knowledge
General Counsel alleges that White, Tynan, and Stabler
were discriminatorily laid off. These allegations are denied
by Respondent, according to whom these employees were
laid off solely because of its anticipated lack of funds when
Respondent learned that the LEAA grant would not be
renewed.
As found earlier herein, on May 6, most of the prounion
employees wore union buttons when at work that day, and
the members of !he organizing committee wore an addi-
tional button identifying them as members of that commit-
tee. General Counsel alleges that even before that date,
Respondent was aware of the employees' union activity.
There is some evidence of that, but it is not as persuasive as
General Counsel would prefer to believe. Respondent's
witnesses, in large measure, denied knowledge of any
union activity among the employees until the day on which
the buttons were worn.
The three aforementioned employees were active union
protagonists, and for at least 2 months before their layoffs
they were engaged in solicitation of their coworkers. Gen-
eral Counsel describes them in her brief as the most promi-
nent of the employee activists in the union campaign.
However, this is not clear from the record, for at the two
meetings which the organizing committee had, or sought to
have, with Dr. Zosa, the spokesman for the committee was
another employee, namely Joseph Scotti.
White testified that one morning late in April, John Sta-
chowski, his supervisor and the intake coordinator, de-
clared to him and to the others present in the office that
"this is a bad time to organize a union, there's talk of [al
grant loss from the LEAA, and we all know what that
would mean." According to White, he questioned the sup-
ervisor as to whether he was singling him out for that state-
ment and Stachowski assured him that he was not, but then
went on to declare that "it just seems like a bad time to
have a union come in this building, because, you know, the
loss of the grant money could mean lay offs." Stachowski
never specifically denied having made these comments. He
acknowledged having had a conversation with White, but
824
MONTGOMERY COUNTY MH/MR EMERGENCY SERVICE
stated that he did not recall that it had transpired in quite
the way in which White testified. White was a credible
witness in connection with this incident. In view of
Stachowski's weak responses when queried about the mat-
ter, it is non found that the conversation occurred substan-
tially as the employee testified. It is further found that the
supervisor's remarks to White established that Stachowski
had knowledge of the union organizational campaign that
was then in progress.
Apart from Stachowski's conversation with White, there
is an additional basis for infering Respondent's knowledge
of the employees' union activity. This arises from the fact
that Respondent's facility had only 24 hospital beds, it oc-
cupied two floors of a small building, and had only 80
employees. In view of the fact that the organizing was car-
ried on by the employees both on and off the premises and
involved the circulation of handbills among coworkers and
the solicitation of authorization cards which culminated in
the button wearing demonstration on May 6, it is unlikely
that by the latter part of April Respondent's management
was unaware of the employee involvement in the Union's
campaign. Coral Gables Convalescent Home, Inc., 234
NLRB 1198, 1201 (1978); Tayko Industries, 214 NLRB 84,
87-88 (1974).'14
2. The layoffs
During the month of May, Respondent laid off approxi-
mately 15 part-time and 5 full-time employees. According
to MCES, this action was taken solely for economic rea-
sons. Early in May, at the direction of Dr. Zosa, Dr. Furse
devised what he described as a point factor rating system
whereby full-time mental health counselors, unit assistants,
and telephone intake workers were evaluated for layoff.
This step was taken notwithstanding the fact that Respon-
dent already had a system for the periodic evaluation of its
employees pursuant to which their performance was regu-
larly rated. Furse testified that the system he devised was
designed to make the evaluations on an objective rather
than a subjective basis. Thus, individuals were rated in four
areas: seniority, and skills in nursing, social services,. 5 and
administrative work. From a mere listing of these criteria,
f4 General Counsel also contends that another incident tends to estabhlish
Respondent's knowledge of the employees' union actisity. Thus. employee
Stabler testified that late in April, he and White were engaged in a discus-
sion with Union Organizer Barbara ('able when Dr Furse walked by them.
Furse, however, testified that he did not notice the employees on that occa-
sion and that it was not until sometime in Maw that he learned of ('able's
identity as a union representative. Furse's denial was credible.
General Counsel offered in evidence what purported to be a cops of a
petition which employee Stabler testified he and others had circulated
among their coworkers In January. This was (;.(. Exh 7 Stabler testified "I
believe I gave it to, or I showed it to. Dianne Attenborough one morning "
Attenborough, however, crediblN denied that Stabler had ever handed the
document to her. At the hearing, Respondent denied that an5 such petition
could be found in its files. The exhibit in question did not purport to be the
onginal; nor was it a complete cop)y. Stabler testified that the original had
25 signatures affixed thereto, whereas no signatures appear on (; C. Exh 7
Since the latter was not properly authenticated, it is now rejected In ans
event. the circulation of the petition in January. which constituted protected
concerted activity. was no more than remotely connected with the union
organizational campaign which began some time later.
5 Intake workers were evaluated as to their inake and interpersonal skills
rather than their nursing skills and social service abilities
however, it is evident that, apart from seniority, all of the
other items, on which Furse relied in his evaluation
scheme, required the supervisors to use very subjective
considerations in rating the employees for layoff.
a. Gregory White
White was a full-time intake worker who had started to
work for MCES in 1974. He was hired as an ambulance
driver at $7,500 a year and in May 1976 he was promoted
to the position of intake caseworker. Thereafter, he was the
sole intake worker on the midnight to 8 a.m. shift. On May
17, 1977, Stachowski notified him that he was being laid off
at the end of the month. White credibly testified that when
his supervisor informed him of the layoff he asked him
whether the action resulted from his union activities, but
that Stachowski made no comment. In a letter of recom-
mendation dated June 1, and written after the layoff, the
supervisor gave White fullsome praise for the high quality
of his performance on the job and recommended him unre-
servedly for further employment.
Stachowski testified that he began the evaluation of the
three full-time intake workers during the week of May 9.
These were Robert Sattazahn, Frances Botto, and White.
The latter was the least senior, so in that category he was
ranked third. Stachowski acknowledged that when evaluat-
ing intake and interpersonal skills he did not refer to a list
of skills, or to the personnel files, but based his ratings
solely on his overall impression of each individual's ability.
This put White at an immediate disadvantage since Sta-
chowski normally spent all his time on the day shift and
was seldom at the hospital between midnight and 8 a.m.,
when White was on duty. Moreover, although Dr. Furse
testified that a feature of the rating system that he devised
was that employees would be rated by more than one sup-
ervisor, the intake workers received no such review and
were evaluated only by Stachowski.t 6
Dr. Dank testified that the part-time staff nimerbers were
to be laid off first. Nevertheless, George Craddock and
Charles Walker, two part-time intake workers, wsere re-
tained, whereas White, a full-time employee, was laid off.
Stachowski and Dank testified that the two were kept be-
cause they held critical positions. However, Respondent's
designation of their positions as "critical" was unrelated to
the nature or quality of work performed. Dr. Dank conced-
ed that it was based solely on the conclusion that their time
slots could not be filled easily. Nevertheless, White. the
full-time worker who was being laid off, was accorded no
option to remain as a part-time intake worker in place of
either Craddock or Walker. Stachowski acknowledged that
16 Stac;losski testified that he reprimanded White about tardiness during
the course of the preceding winter and that he had entered a note on that
matter in the emplocee' personnel file I he purported reprimand. howecer.
was neser offered in e idence and Respondent subsequenils acknowledged
that no such document could he found in White's personnel file In ans
event. criticism of W hite's work performance was hardl' In keeping with the
letter of recommendation vshlch Stachowskl wrote for the employee shortly
thereafter In that document. certainly no routine letter of reference. Sta-
chowkl described White as an emplosee wh'ose "skills and perfor-
mance b. have been exemplars I have found him to be a reliable and
extremely resourceful worker, capable of handling acute and critical situa-
tions with professionalism and sensitivil tio the needs of client, and the
conii unit '
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he did not offer White the opportunity of doing any part-
time work.
Early in May, Thomas Costello was a full-time mental
health counselor on the midnight shift. It appears that, for
reasons of his own, Costello preferred to be an intake
worker. In May or June he was allowed to transfer over to
the job of intake worker on the same shift. Prior to that
time he spent several weeks receiving on the job training
from none other than White. Stachowski testified that he
arranged to have Costello "spend at least an hour or so
[each night] in training with Mr. White, and longer if possi-
ble .... Stachowski conceded that Costello did not have
as much education as White, and, of course, that Costello
did not have as much experience as an intake worker. Nev-
ertheless, on May 17, White was notified that he was being
laid off and within a short while thereafter Costello, his
trainee, became a full-time intake worker.
In view of foregoing circumstances and in the light of the
above findings, it is now found that White was selected for
layoff on the basis of his union activities rather than his
work record. International Signal and Control Corp., 226
NLRB 661, 665-666 (1976). By this course of conduct Re-
spondent violated Section 8(a)(3) and (I) of the Act.
b. Howard 1. Stabler and Richard Tynan
Stabler was a part-time mental health counselor '7 on the
third shift. He had begun work in January 1977. On May 6,
he was notified by Dianne Attenborough, director of nurs-
ing, and Dr. Furse, that he was being laid off effective on
May 13. At the time the supervisors met with Stabler he
was wearing the union buttons that all the members had
agreed to wear that day.?i
Tynan was first employed by MCES in June 1976. He
worked as a part-time mental health counselor on the mid-
night shift under Attenborough. He was notified of his lay-
off on May 16.
General Counsel asserts that both Stabler and Tynan
were offered full-time employment within only a few weeks
prior to their layoff. This is not entirely correct, as will be
seen from the facts set forth below.
Early in April. Stabler learned that Randy McNamee. a
fellow employee, then working full time, was resigning. He
thereupon asked Attenborough, his supervisor, whether he
could have McNamee's position when the resignation be-
came effective. Attenborough was receptive to his request,
but he insisted that Stabler accept McNamee's work sched-
ule which involved being at the job every weekend. Stabler
was unwilling to accede to this condition and no final reso-
lution of this difference was achieved. Tynan likewise man-
ifested a desire to have McNamee's position, and in a con-
versation with Attenborough early in April he also
- Also, known in the record as a menial healih , orker
"I Stabler testified that at the time that Furse and .ttenhborouch mel A iith
him on May 6, he was wearing both his union memibership button and his
organizing committee button. The two supervisoirs testified thllat theN had no
recollection that Stabler had any such insignia on thai occasion. lovAever.
Patricia Buch, a mental health counselor who worked on the samni shift a,
Stabler and who was still in the emplo) of Respndentl hen she testified.
corroborated Stabler's testimon) to the effect that hc was wearing his union
buttons while at work on May 6.
requested consideration for this opening if it materialized.
The supervisor told him that Stabler would be given prefer-
ence since Stabler had put in his request first, but she did
express the hope that something also could be done for
Tynan in June.
In neither instance as to Stabler or Tynan can it be held
that Respondent had offered full-time jobs in the weeks
immediately before their layoffs. As to both of them, Sup-
ervisor Attenborough manifested great interest. But as to
Stabler who declined to work the hours on McNamee's
shift, no decision was ever reached because no shift that
could be tailored to suit Stabler's convenience had been
agreed upon. As to Tynan, no promise had been made
other than that if a full-time opening arose in the near
future he would be considered.
During the month of May, Respondent laid off all the
part-time mental health counselors. This included not only
Stabler and Tynan, but also Maria Benson, William Me-
chuda, Jessie Gray, Davis Farrell, Gary Olsen, and Curtis
Friday. Similarly, part-time employees in other job classifi-
cations were likewise reduced in force. This number in-
cluded four registered nurses, a psychologist, two intake
caseworkers, a janitor, a unit assistant, and a food service
aide. Several full-time mental health workers were also laid
off that same month, viz, Joy Bolton, Michael Zahner, Har-
rone Taylor, and Joseph Scotti. The latter, of course, had
been the employee spokesman on the two occasions when
a delegation of prounion staff members sought to meet
with Dr. Zosa prior to the layoffs.'
On the facts set forth earlier, it has been found that early
in May Respondent was faced with a budgetary crisis
which necessitated some reductions in its staff. Thereafter,
during the latter part of the summer and after MCES was
finally assured that the LEAA grant would be renewed,
some raises were granted and some of the full-time workers
who had been laid off were offered reinstatement. At the
time of the hearing in this matter, however, none of the
part-time mental health workers had been recalled.
Stabler and Tynan were among the organizational lead-
ers and their union activities had come to the attention of
Respondent prior to their layoffs. However, on the facts
presented in this regard, it does not appear that, when Re-
spondent was faced with a fiscal crisis, Stabler and Tynan
were treated any differently from the rest of the part-time
mental health counselors who were all laid off. Although
the matter is not entirely free from doubt, on this record,
the undersigned concludes and finds that General Counsel
has not proved by a preponderance of the evidence that
either Stabler or Tynan was discriminatorily terminated.
F. The Reinstatement Issue
At the time of his layoff, White was earning $9,900 a
year as a telephone intake worker. On July 27, Respondent
offered him a job as unit assistant at $6,500 a year which
White declined. Neither at the hearing, nor in its brief, did
Respondent contend that this offer was for a job that was
substantially equivalent to the one which White held at the
1I he complaint, howeser. does not aliege that Scotti was discriminato-
rlIs treated
826
MONTGOMERY COUNTY MH/MR EMERGENCY SERVICE
time of layoff. Later, however, and in a letter dated Sep-
tember 23, 1977, Dr. Zosa wrote White to inform him that
Respondent had received confirmation that the LEAA
grant had been approved for the coming year and that
MCES was trying to get the ambulance service back in
operation. The letter stated that there would be several
openings and closed with the comment:
If you are interested, please contact Barbara Stiteler
by September 30, 1977. If we do not hear from you by
that date, we will assume that you are not interested in
applying for a position with the van service. 20
The letter made no reference as to the salary that Respon-
dent proposed to pay for work on the ambulance. How-
ever, Dr. Dank testified that the job described would have
paid the same rate as the employee was receiving prior to
his layoff. White did not respond to this communication,
and on October 4, 1977, a notation was placed in his per-
sonnel file to the effect that he had been permanently dis-
charged for failure to accept recall.21 Both at the hearing
and in its brief, Respondent contends that the letter of
September 23 constituted a valid offer of reinstatement
which White declined.
There is no merit to Respondent's position. An employee
who is discriminatorily discharged or laid off is entitled to
an unequivocal and unconditional offer of reinstatement to
his former job, if it still exists, and if it does not, then to an
equivalent position. An invitation for an employment in-
terview or an offer of a new job is not an unequivocal and
unconditional offer. Controlled A lloy, Inc. and Harlin Preci-
sion Sheet Metal Fabrication Co., Inc., 208 NLRB 882, 883
884 (1974). Nor does an inquiry as to whether an employee
is interested in employment constitute an unconditional of-
fer. E. L. Barr and Merle Barr, d/b/a Barr Packing Compa-
ny, 82 NLRB 1, 4 (1949); Hydro-Dredge Accessorv Co., 215
NLRB 138, 139 (1974). Here, Respondent merely suggest-
ed that if White were interested in a job he should contact
Barbara Stitler, at which time qualifications and require-
ments for the opening would be discussed. Such an inquiry
does not constitute an unequivocal offer of reinstatement.
Nor was White under an obligation to answer the letter
from Dr. Zosa. When an employee is unlawfully terminat-
ed, it is the employer who has the obligation to remedy the
wrong "by seeking out the employee and offering reinstate-
ment." Southern Greyhound Lines, Division of Grevhound
Lines, Inc., 169 NLRB 627, 628 (1968), enfd. 425 F.2d
1299, 1303-04 (3d Cir. 1970); J. H. Rutter-Rex Manufactu-
ing Co., Inc., 206 NLRB 656, 657-658 (1973). And until the
discriminatee has received an unconditional offer from his
employer he is incapable of refusing reemployment. REA
Trucking Company., Inc., 176 NLRB 520, 526 (1969), enfd.
439 F.2d 1065, 1066 (9th Cir. 1971). Accordingly, it is now
held that Respondent never extended to White a valid offer
of reinstatement.22
20 An Indentical letter was sent to each of the fi e full-time emploees
who were laid off on May 31. vi:. Joy Bolhon Joeph Scotttl. larrone i a'-
lor Michael Zahner. and White
fl Dr. Dank testified that none of the fise emplo)ees named abohe mani-
fested any interest in the letter of September 23 and Ihat all of them were
permanently discharged as of October 4
22 Both at the hearing and in its brief. Respondent Intimates Ihat the real
CONCLUSIONS OF LAw
1. Respondent is engaged in commerce and the Union is
a labor organization, all within the meaning of the Act.
2. By discriminating in regard to the hire and: tenure of
Gregory White, thereby discouraging membership in the
Union, Respondent has engaged, and is engaging in, unfair
labor practices within the meaning of Section 8(a)(3) and
(1) of the Act.
3. By interfering with, restraining, and coercing its em-
ployees in the exercise of the rights guaranteed in Section 7
of the Act, Respondent has engaged, and is engaging in,
unfair labor practices within the meaning of Section 8(a)(1)
of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
5. General Counsel has not proved by a preponderance
of the evidence that Respondent engaged in any violations
of the Act other than as herein specifically found.
THiE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, it will be recommended that Re-
spondent be ordered to cease and desist therefrom and to
take certain affirmative action designed to effectuate the
policies of the Act.
Having found that Respondent discriminatorily termi-
nated Gregory White, it will be recommended that Re-
spondent be ordered to make him whole for any loss of
earnings he may have suffered from the time of his dis-
charge to the date of Respondent's offer of reinstatement.
The backpay shall be computed in accordance with the
formula set forth in F. W. Woolworth Company, 90 NLRB
289 (1950), with interest computed in the manner pre-
scribed in Florida Steel Corporation, 231 NLRB 651
(1977).2 3 It will be recommended that said Respondent be
required to preserve and make available to the Board, or its
agents, payroll and other records to facilitate the computa-
tion of backpay due.
Since "a discriminatory discharge of an employee . . .
goes to the very heart of the Act" (N.LR.B. v. Entwoistle
Manufacturing Company, 120 F.2d 532, 536 (4th Cir 1941)),
it will be recommended that Respondent be ordered to
cease and desist from infringing in any manner upon the
nghts guaranteed in Section 7.
Upon the foregoing findings, conclusions, and the entire
record, and pursuant to Section 10(c) of the Act, I make
the following recommended:
reas.on White did not return to M( ES '.a, because he was collecting unem-
plosment benefit, while working In the side. There is testsmon) in the
record hb Kenneth Courage, issstanl to D)ank. that during a chance en-
counter atl a baseball game in the ,ummer of 1977. White told Courage that
he Al, ermpllsed and sas also collecting unemplo ,ment compensation
VWhite never denied this testimon'. Ilowever, In view of the finding. .upra,
that Respondent never .ahdl, offered to reemp! ,) White. it is unnecessary
to speculate on what \'hite's respotlne wsould have been had Respondent
unconditiona ll] offered to rinlate him it the poition he had held at the
time ,f his la!off
Sec. generall',. t1s Plumbnihng & lleasi, ( ,. 138 NL RB 716 (196).
827
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER 24
Respondent Montgomery County MHI/MR Emergency
Service, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Laying off, or otherwise discriminating against any
employee because of activity on behalf of, or membership
in, District 1199C, National Union of Hospital and Health
Care Employees, RWDSU, AFL CIO, or any other labor
organization.
(b) Coercively interrogating any employee concerning
that individual's union activity, or that of other employees,
in a manner constituting a violation of Section 8(a)(l) of
the Act.
(c) Discriminatorily applying the rules on use of the bul-
letin boards for the purpose of obstructing organizational
and collective-bargaining rights.
(d) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their right to self-
organization, to form, join, or assist any labor organiza-
tion, to bargain collectively through representatives of their
own choosing, or engage in concerted activities for the pur-
pose of collective bargaining or other mutual aid, or to
refrain from any or all such activities.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Make whole Gregory White in the manner set forth
in the section of this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records neces-
sary, or appropriate, to analyze the amount of backpay
due.
(c) Post at its premises in Norristown, Pennsylvania,
copies of the attached notice marked "Appendix." 25 Cop-
ies of said notices, on forms provided by the Regional Di-
rector for Region 4, after being duly signed by Respon-
dent's authorized representative, shall be posted by it for a
period of 60 days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or covered
by any other material.
(d) Notify the Regional Director for Region 4, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
Ir IS FURTHER ORDERED that the complaint be dismissed
insofar as it alleged unfair labor practices not found herein.
24 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 findings,
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.
2' In the event that this Order is enforced by a judgment of the United
States Court of Appeals. the swords in the notice reading. "Posted by Order
if the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States C(ourt of Appeals Enforcing an Order of the
National Labor Relaiions Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF HE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage membership in District
1199C, National Union of Hospital and Health Care
Employees, RWDSU, AFL-CIO, or any other labor
organization by laying off, or otherwise discriminating
against our employees because of their union or con-
certed activities.
WE WILL NOT coercively interrogate any employee
concerning that individual's union activity, or that of
other employees, in a manner constituting a violation
of Section 8(a)(I) of the Act.
WE WILL NOT discriminatorily apply the rules on use
of the bulletin boards for the purpose of obstructing
organizational and collective-bargaining rights.
WE Wi.L NOr in any other manner interfere with,
restrain, or coerce employees in the exercise of their
right to self-organization, to form, join, or assist the
above-named Union, or any other labor organization,
to bargain collectively through representatives of their
own choosing, and to engage in concerted activities
for the purpose of collective bargaining or other mutu-
al aid or protection, or to refrain from any or all such
activities.
WE WILL make whole Gregory White for any loss of
pay suffered because of our discrimination against
him.
MONTGOMERY COUNTY MHMR EMERGENCY SER-
VI( F
828