Needell & McGlone, P.C.

National Labor Relations Board - Board Decisions

May 28, 1993

311 N.L.R.B. 455 (N.L.R.B. 1993)

455
311 NLRB No. 49
NEEDELL & MCGLONE, P.C.
1 In support of its Exception I, the Respondent argues that the
Charging Party should be denied backpay because the General Coun-
sel presented no evidence regarding proof of monetary loss suffered
by her because of her discharge. We disagree. A make-whole order
is undertaken ‘‘in order to return the unlawfully discharged em-
ployee to the status quo that would have existed absent the unfair
labor practice. The particulars of that status quo determination, e.g.,
offsets from backpay, if any, or, where appropriate, identification of
a ‘substantially equivalent’ position, generally are not litigated in the
original proceeding on the merits.’’ Dean General Contractors, 285
NLRB 573 (1987). Rather, these issues are typically resolved in the
compliance stage, and therefore, a fully litigated record on this issue
at this point is not warranted.
2 G.C. Exh. 4, a letter submitted by the Respondent in response
to the discriminatee’s unemployment compensation claim and quoted
in part by the judge, was identified, authenticated, and acknowledged
as accurate by the principals of Respondent at the hearing, but the
exhibit was apparently inadvertently not formally moved into evi-
dence. However, as the substance of the exhibit was subjected to tes-
timonial direct and cross-examination, and as none of the parties
have excepted to this inadvertent omission, we are admitting the ex-
hibit into the record at this time. See Electrical Workers IBEW Local
1579 (CIMCO), 311 NLRB 26 at fn. 4 (1993).
The General Counsel has moved to strike a portion of Respond-
ent’s Exception D because it references matters contained in Re-
spondent Needell’s pretrial affidavit (G.C. Exh. 5—not formally
moved or admitted into evidence) that were neither presented in tes-
timony nor subjected to cross-examination in the hearing. Because
General Counsel 5, even if admitted into evidence in its entirety,
would not affect the outcome of this case, we find it unnecessary
to rule on the motion to strike.
3 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. 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.
Needell and McGlone, P.C. and Sharon Hashemi.
Case 22–CA–18057
May 28, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On January 27, 1993, Administrative Law Judge
James F. Morton issued the attached decision. The Re-
spondent filed exceptions and a supporting brief. The
General Counsel filed a motion to strike a portion of
the Respondent’s exceptions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions,1 brief, and motion
and has decided to affirm the judge’s rulings,2 find-
ings,3 and conclusions and to adopt the recommended
Order as modified.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent,
Needell and McGlone, P.C., Trenton, New Jersey, its
officers, agents, successors, and assigns, shall take the
action set forth in the Order as modified.
1. Substitute the following for paragraph 1(b).
‘‘(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.’’
Stephen J. Holroyd, Esq., for the General Counsel.
Charles J. Casale, Jr., Esq., of Trenton, New Jersey, for the
Respondent.
DECISION
STATEMENT OF THE CASE
JAMES F. MORTON, Administrative Law Judge. The com-
plaint alleges that Needell and McGlone, P.C. (the Respond-
ent) has engaged in an unfair labor practices within the
meaning of Section 8(a)(1) of the National Labor Relations
Act (the Act) by having discharged its employee, Sharon
Hashemi, because of her concerted activities with other em-
ployees in complaining about the distribution of work and
the enforcement of work rules. The Respondent denies that
Hashemi engaged in activities protected by the Act and as-
serts that she was discharged because she had violated a rule
against looking at confidential material.
I heard this case in Newark, New Jersey, on July 15, 1992.
Upon the entire record, including my observation of the de-
meanor of the witnesses, and after due consideration of the
briefs filed by the General Counsel and the Respondent, I
make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a professional corporation of the State
of New Jersey, engaged in the practice of law. The pleadings
established that, in its operations annually, it meets the
Board’s standard for asserting its jurisdiction in this case.
II. THE ALLEGED UNLAWFUL DISCHARGE
All the events discussed below took place in 1991.
Hashemi was hired by the Respondent on January 14 to
perform various clerical functions and to assist the secretaries
employed by the Respondent. She and two of the secretaries,
Alice Nelson and Linda Dubinski, regularly had lunch to-
gether. They discussed what they perceived to be preferential
treatment accorded by the Respondent’s office manager to a
third secretary, Rose Giancarlo, in allowing her to come to
work late and in not asking her to help them out with the
workload when she was caught up with her work.
At a meeting in June between the Respondent’s two prin-
cipals, Stanley Needell and Patricia McGlone, and the cleri-
cal staff, the matter of Alice Nelson’s having been ‘‘written
up for being tardy’’ came up. Hashemi told the principals
that Nelson should not have been written up inasmuch as
456 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Giancarlo had not been written up for being late. Hashemi
was told that the matter of Nelson’s being disciplined was
none of her concern.
Sometime afterwards, Giancarlo complained to Needell
and McGlone as to the way that Hashemi, Nelson, and
Dubinski were acting towards her. The Respondent decided
to discharge Hashemi then because of ‘‘the dissension among
the employee that she was creating.’’ Its newly hired office
manager, Karen Tattory, suggested that, instead of discharg-
ing Hashemi, she should be moved to another floor to re-
place another secretary who was scheduled to retire.
Before that move took place, however, Hashemi was dis-
charged under the circumstances discussed below.
On July 24, Hashemi, Nelson, and Dubinski talked, while
having lunch, about the heavier workloads they were carry-
ing as compared to Giancarlo’s. Later that afternoon,
Hashemi complained to Office Manager Tattory that ‘‘she
didn’t think that [Giancarlo] pitched in and helped out the
other girls.’’ Hashemi also told Tattory that she and the other
secretaries had seen Giancarlo’s timesheets and that these
sheets showed that Giancarlo was reporting times ‘‘other
then what she came in’’ and that she ‘‘wasn’t penalized.’’
Tattory testified for the Respondent that, right after that
conversation, she told McGlone and Needell that she had
changed her mind and that Hashemi should be discharged in-
stead of moved to another floor. Tattory was then asked by
the Respondent’s counsel if she also mentioned to McGlone
and Needell ‘‘the time sheets’’ and she responded in the af-
firmative.
On the next day, Hashemi met with McGlone, Needell,
and Tattory. Hashemi testified that Needell told her then that
she was a good worker but that he was sorry to have to let
her go because she was ‘‘being a spokesperson and a ring-
leader for other secretaries and trying to alienate them from
another secretary.’’ She testified further that Needell also
told her he hoped that she would not repeat that mistake
while assuring her that he would give her a good reference.
The Respondent’s contention is that Hashemi was dis-
charged solely because she looked at confidential documents,
i.e., the timesheets of Giancarlo.
As to the discharge interview on July 25, Needell and also
McGlone testified thereon. Tattory’s testimony related to
other events; she did not relate as to what was said at that
meeting.
McGlone testified in a conclusory manner as to what tran-
spired at that meeting. She testified that Hashemi was told
then that she was discharged because ‘‘she had gone through
records and that we can’t put up with that.’’ Needell testified
that he explained fully to Hashemi that he could not coun-
tenance an employee going through records which are con-
fidential, and that, although a decision had been made to
solve the problem by moving her upstairs, she now had to
be let go because she could not be trusted in that she had
gone through confidential records. According to Needell,
Hashemi’s primary concern then was getting a good rec-
ommendation; he related that he told her that, if she would
‘‘just say the words that [she] won’t do that sort of thing
again,’’ she would get a good recommendation. He did not
testify as to what, if anything, she said in response.
As to the testimony offered by the Respondent relative to
its office staff being restricted in its access to confidential
files, the evidence discloses that the Respondent had never
promulgated any rule or guideline to inform its clerical staff
that certain items were off-limits to them. More significantly,
the General Counsel presented uncontroverted testimony that
the timesheets, referred to above, were left each day along-
side legal forms that the entire office staff used routinely and
that these sheets were never kept secret.
Also relevant to the issue as to what was said by Needell
to Hashemi on July 25 and as to the ultimate merits is cer-
tain documentary evidence. Hashemi had filed an unemploy-
ment compensation claim after she was discharged. The Re-
spondent submitted a statement of its position as to the
claim. In its statement, it related that Hashemi was dis-
charged ‘‘because of her continued attempts to manage per-
sonnel and creation of dissension among [the] legal secretar-
ial support staff.’’
I credit Hashemi’s account as to the July 25 discharge
meeting. It is more probably true than those offered by the
Respondent, in the context of the overall circumstances dis-
cussed above, including the position statement the Respond-
ent submitted on Hashemi’s unemployment compensation
claim.
The Respondent’s principal contention is that Hashemi’s
activities, in complaining to the Respondent that Giancarlo
was being given preferential treatment to that accorded to the
rest of the clerical staff, are not protected by the Act. The
evidence in this case establishes that Hashemi had often dis-
cussed with two secretaries their concern as to what they per-
ceived to be the special treatment given Giancarlo, that she
has spoken out on this matter at a staff meeting held by
Needell and by McGlone, and that she again registered a
complaint with the office manager on July 24. Her protests
were the logical outgrowth of the concerns discussed by her
and her coworkers. They are thus concerted activities pro-
tected by the Act. See Mike Yurosek & Son, Inc., 306 NLRB
1037 (1992). The credited evidence establishes also that the
Respondent discharged her on its belief that she was the
ringleader of an employee group which was complaining as
to preferential treatment given Giancarlo. Thus, the Respond-
ent discharged her because it believed she was engaged in
concerted activities which, by their nature, are protected by
the Act. Yurosek, supra.
In its brief, the Respondent contends that NLRB v. City
Disposal Systems, 465 U.S. 822 (1984), requires a dismissal
of the complaint because there is no evidence that Hashemi
ever told McGlone, Needell, or the office manager that she
had discussed with her coworkers the matter of preferential
treatment given Giancarlo. I have been unable to find, in City
Disposal, any support for that proposition. The Act does not
require that employees keep their employer abreast of their
protected activities. Rather, it is well settled that circumstan-
tial evidence of employer knowledge may be entirely valid
to support a finding that an employee was discharged be-
cause of activities protected by the Act. See, e.g., Abbey’s
Transportation Services, 284 NLRB 698, 701 (1987).
In view of Hashemi’s activities, in conjunction with her
two coworkers as to their working conditions, the clear evi-
dence of the Respondent’s knowledge thereof, the animus
thereto, the timing of her discharge in relation to her protest
to the office manager on July 24 and the credited testimony
as to the July 25 meeting, I find that the General Counsel
has established a prima facie case that the Respondent dis-
charged Hashemi for unlawful reasons.
457NEEDELL & MCGLONE, P.C.
1 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
2 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
Under Wright Line, 251 NLRB 1083 (1980), the burden
then devolved on the Respondent to prove that it would
have, absent her protected activities, still discharged
Hashemi, for a nondiscriminatory reason. I have already re-
jected its contention that she was discharged for violating a
rule as to access to confidential documents. The Respondent
has not met its Wright Line burden. I this find that, in dis-
charging Hashemi, the Respondent has interfered with, re-
strained, and coerced its employees as to their rights pro-
tected by Section 7 of the Act. Trayco of S.C., 297 NLRB
630 (1990), and cases discussed therein.
CONCLUSIONS OF LAW
1. The Respondent, Needell and McGlone, P.C, is an em-
ployer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Respondent, by discharging its employee Sharon
Hashemi, on July 25, 1991, engaged in conduct violative of
Section 8(a)(1) of the Act.
3. The aforesaid unfair labor practice affected commerce
within the meaning of Section 2(6) of the Act.
THE REMEDY
Having found that the Respondent has engaged in an un-
fair labor practice, I shall recommend that it be ordered to
cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Having found that the Respondent has illegally discharged
its employee in violation of the Act, I shall order the Re-
spondent to offer Sharon Hashemi immediate and full rein-
statement to her former position or, if that position no longer
exists, to a substantially equivalent position, without preju-
dice to her seniority or other rights and privileges. I further
order the Respondent to make her whole for any loss of
earnings she may have suffered as a result of the discrimina-
tion against her and that the Respondent remove from its
records any reference to her discharge and to notify her in
writing that the Respondent’s unlawful conduct will not be
used as a basis for further personnel action. Backpay shall
be computed as described in F. W. Woolworth Co., 90
NLRB 289 (1950), with interest as described in New Hori-
zons for the Retarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended1
ORDER
The Respondent, Needell and McGlone P.C., of Trenton,
New Jersey, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging its employees because of their protected
activities under the Act.
(b) In any like or related manner, interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Sharon Hashemi 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 se-
niority or any other rights or privileges previously enjoyed,
and make her whole for any loss of earnings and other bene-
fits suffered as a result of the discrimination against her, in
the manner set forth in the remedy section of this decision.
(b) Remove from its files any reference to her unlawful
discharge and notify her in writing that this has been done
and that the discharge will not be used against her in any
way.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(d) Post at its office in Trenton, 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 representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, 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 Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT discharge any of our employees for discuss-
ing, among themselves, problems relating to conditions of
work.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
458 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL offer Sharon Hashemi immediate and full rein-
statement to her job and WE WILL make her whole, with in-
terest, for any wages and benefits she lost as a a result of
our having unlawfully discharged her.
WE WILL remove from our files all references to her dis-
charge and WE WILL notify her in writing that this has been
done and that her discharge shall not be used against her in
any way.
NEEDELL AND MCGLONE, P.C.