Richboro Community Mental Health Council

National Labor Relations Board - Board Decisions

Apr 6, 1977

228 N.L.R.B. 1198 (N.L.R.B. 1977)

1198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Richboro Community Mental Health Council , Inc. and
Guild of Professional , Technical and Office Em-
ployees, District 1199, National Union of Hospital
and Health Care Employees , Retail, Wholesale and
Department Store Union , AFL-CIO. Case 29-
CA-5054
April 6, 1977
DECISION AND ORDER
BY MEMBERS JENKINS , PENELLO, AND
WALTHER
On December 17, 1976, Administrative Law Judge
Robert E. Mullin issued the attached Decision in this
proceeding . Thereafter, the General Counsel filed
limited exceptions and a supporting brief, and the
Charging Party filed limited exceptions and a
supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as. amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three -member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings , findings,
and conclusions of the Administrative Law Judge as
modified herein.
We agree with the Administrative Law Judge's
finding that Respondent, during its antiunion cam-
paign , on numerous occasions violated Section
8(a)(1) of the Act, as detailed in the Administrative
Law Judge 's Decision . We also agree with his finding
that the Respondent violated Section 8(a)(5) of the
Act by refusing to bargain in good faith with the
Union as the exclusive representative of its employ-
ees in the certified unit when it unilaterally subcon-
tracted the work of the nurses to the United States
Public Health Service and laid off the unit members
without notification to the Union . While the Admin-
istrative Law Judge correctly found that the Respon-
dent violated Section 8(a)(3) of the Act by discrimi-
natorily laying off the employees who had performed
nursing services for the Respondent , the Administra-
tive Law Judge failed to conclude that the subcon-
tracting of the nursing service which resulted in the
layoff was also violative of Section 8(a)(3) of the Act.
General Counsel and the Charging Party have
excepted to the Administrative Law Judge 's failure to
find the additional 8(a)(3) violation. Inasmuch as the
record amply demonstrates that the Respondent was
motivated by antiunion considerations in deciding to
subcontract out the nursing service, we find merit to
these exceptions . Accordingly, we hereby find that
the subcontracting out of work , as well as the layoffs
resulting therefrom , violated Section 8(a)(3) of the
Act.
The Remedy
Having found that the Respondent has engaged in
certain unfair labor practices we shall order it to
cease and desist therefrom and to take certain
affirmative action necessary to effectuate the policies
of the Act.
Although the Administrative Law Judge found that
there is no merit to the Respondent's contention that
it was forced to terminate the nursing services
because of budgetary considerations and further
concluded that "on the basis of well documented
antipathy of the Respondent for the employees'
choice of a bargaining representative, it is now found
that the Respondent's action in terminating the
nurses, after they declined to abandon the Union
constituted a violation of Section 8(a)(3) and (1)," he
declined to require Respondent to reinstate its
former nursing services together with the discrimina-
torily discharged employees who had performed this
service. The General Counsel and the Charging Party
have excepted to this omission. We find merit in their
exceptions.
In requiring a Transmarine Navigation Corporation 1
type remedy the Administrative Law Judge states
that such a remedy was requested by the General
Counsel. The record, however, shows that the
General Counsel's reference to Transmarine Naviga-
tion was suggested merely as a possible alternative
remedy if for some reason the traditional remedy of
restoring the status quo was found to be inappropri-
ate on the facts of this case. There is nothing,
however, in this case to show that a traditional
remedy is not warranted.2
Thus the Respondent has failed to substantiate its
defense of economic necessity as the motivation for
illegally subcontracting the nursing work. The
subcontract is terminable on 30 days' notice, and it
has not been shown that it would cause the
Respondent any undue hardship if the Board were to
order the reinstatement of the nursing operation. The
record reflects that the subcontracted operation is
still being continued. The only difference is that the
Respondent is using the United States Public Health
Service for the performance of duties which other-
wise would be performed by its illegally discharged
employees. In these circumstances, not to require
Respondent to resume its former operations and
reinstate the discriminatorily discharged employees
would not completely remedy Respondent's unfair
1 170 NLRB 389 (1968).
2 See, e.g, Townhouse T V and Appliances, 213 NLRB 716 (1974); B. F.
Goodrich Products Company, 221 NLRB 288 (1975)
228 NLRB No. 159
RICHBORO COMMUNITY MENTAL HEALTH COUNCIL
labor practices. If there is any hardship caused by
this remedy, it is only fair that the wrongdoer rather
than the wronged should bear it. Moreover, a
meaningful bargaining order can be fashioned only
by directing Respondent to reinstate the nursing
operation.
Accordingly, we shall order Respondent to reestab-
lish its nursing operation and to reinstate those
employees found to have been illegally discharged.
We shall also award them backpay based on the
earnings they normally would have received from the
date of their discharge to the date of Respondent's
offer of reinstatement, less any net interim earnings
which shall be computed on a quarterly basis in the
manner set forth in F. W. Woolworth Company, 90
NLRB 189 (1950), with interest at the rate of 6
percent per annum as set forth in Isis Plumbing &
Heating Co., 138 NLRB 716 (1962).
AMENDED CONCLUSIONS OF LAW
Insert the following as Conclusions of Law 5 and
renumber present Conclusions of Law 5, 6, and 7 as
6, 7, and 8, respectively:
"5. By subcontracting out its nursing operation
because its employees chose union representation,
the Respondent has engaged in an unfair labor
practice within the meaning of Section 8(a)(3) of the
Act."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Richboro Community Mental Health Council, Inc.,
Brooklyn, New York, its officers, agents, successors,
and assigns , shall:
1. Cease and desist from:
(a) Failing and refusing to bargain with Guild of
Professional, Technical and Office Employees, Dis-
trict 1199, National Union of Hospital and Health
Care Employees, Retail , Wholesale and Department
Store Union, AFL-CIO, or any other labor organiza-
tion, representing its employees in an appropriate
unit, respecting the effects of any decision to transfer
the work of any employee in the following appropri-
ate unit:
All full-time and regular part-time registered
nurses employed by the Respondent, exclusive of
all other employees, casual employees, guards and
supervisors as defined in Section 2(11) of the Act.
(b) Failing or refusing, upon request, to bargain in
good faith with any labor organization representing
its employees in an appropriate unit, respecting rates
1199
of pay, wages, hours, or other terms or conditions of
employment.
(c) Interrogating any employee concerning that
individual's union activity, or that of other employ-
ees, in a manner constituting a violation of Section
8(a)(1) of the Act.
(d) Threatening its employees with loss of jobs or
closing of the drug abuse program if a majority
become members of, or assist, a labor organization,
and subcontracting out nursing services and laying
off employees because they support a labor organiza-
tion.
(e) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of their
right to self-organization, to form, join, or assist
labor organizations, to bargain collectively through
representatives of their own choosing, or to engage in
other concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection as
guaranteed in Section 7 of the National Labor
Relations Act, as amended, or to refrain from any or
all such activities.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Cancel, after proper notice, its contract with the
United States Public Health Service with respect to
the performance of nursing services at the site
involved in this case.
(b) Reestablish its own provision of nursing
services and offer to those employees whose employ-
ment was terminated as a result of the contract with
the United States Public Health Service immediate
and full reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority and
other rights and privileges, and make each of them
whole for any loss of earnings suffered in the manner
provided in the section of this Decision and Order
entitled "The Remedy."
(c) Preserve and, upon 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) Upon request, bargain collectively with the
aboved-named labor organization as the exclusive
representative of all the employees in the appropriate
unit set forth above in respect to rates of pay, wages,
hours of employment, or other terms and conditions
of employment and embody any understanding
reached in a signed agreement.
1200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(e) Post at its place of business in Richmond
County, New York, copies of the attached notice
marked "Appendix." 3 Copies of said notice, on
forms provided by the Regional Director for Region
29, after being duly signed by Respondent's represen-
tative, 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 insure that said notices are not
altered, defaced, or covered by any other material.
(0 Notify the Regional Director for Region 29, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply here-
with.
I 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 Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT fail and refuse to bargain with
Guild of Professional, Technical and Office
Employees, District 1199, National Union of
Hospital and Health Care Employees, Retail,
Wholesale and Department Store Union, AFL-
CIO, or any other labor organization, represent-
ing our employees in an appropriate unit, respect-
ing the effects of any decision to transfer the work
of any employees in the following appropriate
unit:
All full-time and regular part-time registered
nurses employed by the Respondent, exclu-
sive of all other employees, casual employ-
ees, guards and supervisors as defined in
Section 2(11) of the Act.
WE WILL NOT interrogate any employee con-
cerning that individual's union activity or that of
any other employee in a manner constituting a
violation of Section 8(a)(1) of the Act.
WE WILL NOT threaten our employees with the
loss of their jobs or the closing of our drug abuse
program if a majority of our employees become
members of, or assist, a labor organization.
WE WILL NOT subcontract out our program
and/or lay our employees off because they
support a union.
WE WILL NOT refuse to bargain in good faith
with the above-named Union, or any other labor
organization, with respect to rates of pay, wages,
hours of employment, or other terms and condi-
tions of employment, and embody any under-
standing reached in a signed agreement.
WE WILL NOT 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 mutual aid or
protection, or to refrain from any or all such
activities.
WE WILL, after proper notice, cancel our
contract with the United States Public Health
Service as it relates to our nursing services.
WE WILL reestablish our former nursing servic-
es at our Richmond County facility.
WE WILL offer Helen Bracy, Christine DeMar-
co, Emily DeSimone, Margaret McPhail, Nancy
Steinert, and Betty Young immediate and full
reinstatement to their former positions or, if those
positions no longer exist, to substantially equiva-
lent positions, without prejudice to their seniority
and other rights and privileges and we will make
them whole for any loss of earnings they may
have suffered by reason of our discrimination
against them.
WE WILL upon request bargain collectively with
the above-named labor organization as the
exclusive representative of our employees in the
above unit found appropriate with respect to rates
of pay, wages, hours of employment, and other
terms and conditions of employment and embody
any understanding reached in a signed agreement.
RICHBORO COMMUNITY
MENTAL HEALTH
COUNCIL, INC.
DECISION I
STATEMENT OF THE CASE
ROBERT E. MULLIN, Administrative Law Judge: This
case was heard on August 30 and 31, 1976, in Brooklyn,
New York, pursuant to a charge, duly filed and served,2 a
complaint issued on July 16, 1976, and an amended
' Mr Quinn stated at the outset of the hearing that he was not
representing the Respondent Employer, and that he was present only
because of the allegations which had been made against the board of
directors and him personally Nevertheless, thereafter, and as a lawyer who
very obviously has had extensive experience in litigation , he participated
fully in the cross-examination of all witnesses for the General Counsel and
in the presentation of the Respondent 's case.
2 The charge was filed on June 11, 1976.
RICHBORO COMMUNITY MENTAL HEALTH COUNCIL
complaint issued on July 26, 1976. The complaint and
amended complaint presents questions as to whether the
Respondent violated Section 8(a)(1), (3), and (5) of the
National Labor Relations Act, as amended. In its answer,
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
practices.
At the hearing all parties were given full opportunity to
examine and cross-examine witnesses and to file briefs. The
General Counsel presented oral argument at the close of
the hearing. The parties were accorded an opportunity to
file briefs, but no briefs were submitted. Upon the entire
record in the case, and from my observation of the
witnesses, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent, a not-for-profit corporation, organized
under the laws of the State of New York, maintains its
principal office and place of business in Staten Island,
County of Richmond, city and State of New York, where it
has been engaged in the operation of a nonprofit health
related facility since about 1974. During the year prior to
issuance of the complaint the Respondent received in
excess of $250,000 in gross revenues for providing health
care and related services. During that same period it had
delivered to its place of business, goods and materials
valued in excess of $5,000, of which amount in excess of
$5,000 were transported and delivered to its place of
business in interstate commerce directly from States other
than the State of New York. On the foregoing facts, the
Respondent concedes, and it is now found, that Richboro
Community Mental Health Council, Inc. (herein Richboro,
or the Respondent), is engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Guild of Professional , Technical and Office Employees,
District 1199 , National Union of Hospital and Health Care
Employees , Retail , Wholesale and Department Store
Union , AFL-CIO (herein Union , or District 1199), is a
labor organization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction and Sequence of Events
The Respondent was established in 1974 as a nonprofit
health care facility for the treatment of drug abuse
problems. Its entire income is in the form of grants from
the New York State Office of Drug Abuse Services which,
in turn , receives the money from the National Institute of
Drug Abuse , a Federal agency . The board of directors is
3 All dates hereinafter are for the year 1976 unless specifically noted
otherwise.
" On that same day, in a parallel proceeding involving the counselors,
and after another representation election held on May 21, the Regional
Director also certified the Union as the majority representative of a unit
1201
made up of civic, religious, and community leaders, the
chairman of which is John J. Quinn, an attorney in active
practice. At all times material, the full-time administrator
was Terence McCabe.
In the spring of 1976,3 the Union began an organization-
al campaign among the Respondent's employees, and on
April 9 it filed a representation petition to represent a unit
made up of the registered nurses. Richboro Community
Mental Health Council, Inc., Case 29-RC-3374. On May
21, and pursuant to a consent election agreement, a Board-
conducted election was held wherein the registered nurses
in the Respondent's employ unanimously voted for
representation by the Union. On June 1, the Regional
Director certified the Union as the exclusive collective-
bargaining representative of a unit made up of all full-time
and regular part-time registered nurses employed by the
Respondent.4
As found in the representation proceeding, and now
found by me, the appropriate unit for the nurses is as
follows: All full-time and regular part-time registered
nurses employed by the Respondent, exclusive of all other
employees, casual employees, guards and supervisors as
defined in Section 2(11) of the Act. Further, since May 21,
the Union has been the representative for the purposes of
collective bargaining of the employees in the unit described
above, and by virtue of Section 9(a) of the Act has been the
exclusive representative of all the employees in that unit.
On May 18, the Respondent signed an agreement with
the United States Public Health Service (hereinafter
USPHS), whereby the Respondent subcontracted to the
USPHS at its Staten Island Hospital the work of providing
nursing services, which, until then, were being performed
by the nurses in the appropriate unit described above. This
contract was subsequently approved by the USPHS on
June 3. The following day, the Respondent gave notice of
termination to all nurses then on its staff, the discharges to
be effective on June 18.
B. The Facts
On March 29, Dennis Brown, a coordinator of vocation-
al rehabilitation, held a union organizational meeting at his
home. In attendance, along with some of the counselors,
were four of the nurses in the Respondent's employ, Emily
DeSimone, Nancy Steinert, Helen Bracy, and Christine
DeMarco. All of those present signed authorization cards.
Thereafter, they prepared a letter to the board of directors
in which they expressed their desire to be represented by
District 1199 and asked that the Respondent recognize the
Union and proceed to negotiations for a collective-bargain-
mg agreement. This was sent to the Board and on April 6,
Brown himself carried a copy to the office of Administrator
Terence McCabe, and supplied copies to Lou Bunz,
supervisor of supportive services, Camille Buffa, supervisor
of nurses, and other members of management.
Shortly after McCabe received the letter he asked that
Brown come to his office. When Brown complied, McCabe
made up of counselors, mental health professionals, social workers, the
vocational rehabilitation coordinator, day care coordinator, and research
evaluator, excluding all other employees, registered nurses, guards and
supervisors.
1202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
questioned the employee as to whether he was supporting
the Union. On receiving an affirmative response, McCabe
then asked "Who are the others?" Brown declined to
answer that question and returned to his work.5
The following day Brown met with Administrator
McCabe and Board of Directors Chairman Quinn in the
office of the former. Quinn expressed his opposition to the
Union's organizational efforts on the ground that its
presence would destroy the drug abuse program which the
Respondent was endeavoring to establish. Quinn further
stated that he was not free to expend the hundreds of hours
which negotiating with the Union would require and that
to forestall this necessity he would resign from the board.
He further stated that if he did so, thereafter the rest of the
board would probably resign. Brown urged that Quinn not
take that drastic step since the resignation of the entire
board of directors would be tantamount to the destruction
of Richboro and its program. McCabe closed the discus-
sion with the comment that "No union would be good for
our program and, above all, [District] 1199, because it's the
worst of all unions. ..." 6
On April 7, employees Jack Paluszek and Carmine Largo
met with McCabe to ask whether he would agree to a card
count that would determine the Union's majority status.
The administrator declined to do so and then went on to
declare that if Paluszek and Largo had "only waited 85
days instead of getting this Union in . . . we would have
gotten substantial raises and promotions." Later that same
day Paluszek and Largo also met with Quinn where they
again raised the issue of a card count. Quinn declined to
endorse their request and told them that he felt that "the
Union was going to strangle the program." He went on to
express the view that the issue was "one of control" and
then concluded that he would "not let a union control this
program." 7
As noted earlier, on April 9, the Union filed a
representation petition requesting an election for a unit of
nurses . Not long thereafter, Brown was questioned by his
supervisor, Lou Bunz, director of supportive services, as to
whether Brown was going to vote for the Union. On April
21, the employees sent another letter to the board of
directors requesting that it recognize and bargain with the
Union. As found earlier, on April 28, the parties signed
consent election agreements for the two separate units of
nurses and of counsellors.
On the evening of May 3, the employees and the board of
directors met for almost 3 hours in the Richboro confer-
ence room. There was some confusion as to which side
requested the meeting . However, the more credible testi-
mony on this issue was that of Reverend Kenneth Hall, a
member of the board. According to Reverend Hall, it was
employee Brown and other members of the staff that
sought the meeting. In any event, at the outset of the
5 The findings in this paragraph and the quotation are from the credible,
undemed testimony of Brown. When on the stand , McCabe did not dispute
the accuracy of Brown's version of what was said at their meeting.
6 The findings and quotations in this paragraph are from the credible,
undemed testimony of Brown . Quinn did not testify and McCabe's
testimony corroborated that of Brown as to the findings that appear above.
7 The findings and quotations in this paragraph are from the credible,
undemed testimony of Paluszek
" At the hearing, Mr Gianvito acknowledged that he had proposed
instituting a grievance procedure and testified " I said that we would
conference, several of the employees, including Brown and
Paluszek, set forth their grievances and complaints about
the manner in which their working conditions were
unsatisfactory and the reasons why they felt that the
management should recognize the Union as their bargain-
ing agent . According to Brown, Chairman Quinn told the
employees that if the Union won the election he would
resign and that the rest of the board would follow suit. He
predicted that, if that occurred, the agency would probably
go out of existence because of the difficulties that would be
encountered in securing a new group of community leaders
to serve on the board. According to Brown, Quinn
concluded with the plea "I beg of you, don't join this
union." Joseph Gianvito, another board member, asked
that the employees give the board another year without a
union to solve their problems. He told the employees, "if
we let you down, . . . you can always go to a union .. .
but give us a chance to rectify these problems." Gianvito
referred to one issue that had been raised; namely, a
complaint of the nurses that they did not receive pay for
one-half hour of worktime. On that issue Gianvito stated
"I'm appalled by the fact that the nurses don't get paid that
extra half hour they work ... I will see to it in the new
budget that's rectified...." The employees had not raised
the issue of a grievance procedure, nor did the employer
have a formal grievance procedure for its employees.
Gianvito, however, proposed that such a procedure be
instituted and Lou Bunz, supervisor of the counseling staff,
was designated to draft such a proposal .8 McCabe, who
was present throughout the meeting, told those present that
raises which had been promised the nurses in January
would go into effect in the next budget period which would
start July 1. McCabe promised that "he would see that the
nurses . . . got adequately compensated and were taken
care of. . . ."9 Emily DeSimone, a nurse who was present,
testified that McCabe told her during the course of the
meeting that a salary increase which he had promised her
"was going into the [new] budget."
On about May 18, Nancy Steinert, a nurse, received a
telephone call at her home from Camille Buffa, the
supervisor of nursing. Steinert had previously told Buffa
that she was supporting the Union. In this telephone
conversation Buffa cautioned the employee that the board
of directors was very distressed with the employee support
for District 1199, and that the members of the Board were
"very against it.... " In concluding the conversation,
Buffa went on to tell Steinert that "our jobs were in
jeopardy, that there were not many jobs for drug abuse
nurses and you have a family and it's cold out there and
you should really reconsider your voting."
On June 1, Buffa telephoned Steinert again . This time
Buffa asked that Steinert attend a meeting at the home of
Lou Bunz, supervisor of the counseling staff. Buffa told
review their grievances as quickly as possible and resolve them as quickly as
possible."
9 The findings and quotations in the foregoing paragraph are from the
credible, undemed , and uncontradicted testimony of Brown, Paluszek,
DeSimone , and Reverend Hall. Gianvito acknowledged that he had
requested the employees that they accord the board a year's opportunity to
satisfy their demands before going to a union . At the hearing, McCabe
testified At great length , but did not deny or contradict any of the testimony
presented by the General Counsel's witnesses as to this meeting
RICHBORO COMMUNITY MENTAL HEALTH COUNCIL
Steinert that she had learned "that the nurses were being let
go and that we should really try to get together and meet
with the Board and try to bargain with them to save our
positions and give up the union." Steinert attended the
meeting and , while there, she and her coworkers were
informed by Buffa that Richboro was about to terminate
the nursing staff and that "we should really try to get the
administration and the Board together and try to make an
agreement to give up the union . . . and that they [Buffa
and Bunz] were presenting this material to the staff hoping
that we would let the union go . . . to save our jobs." 10
On or about May 26, Brown had a conversation with
Administrator McCabe in the office of the latter. The
preceding week the Union had won both the election for
the unit of nurses and the election for the counseling unit.
McCabe criticized Brown and the other employees for
having gone ahead with their organizational efforts. He
told Brown, "if you had only waited 85 days. . . . The
nurses would have all received their promised raises. All
the staff would receive a substantial cost of living index
increment . . . six positions were going to be upgrad-
ed...." Brown then inquired why those goals could not
be realized now that the Union had won the elections.
McCabe responded with the comment "I'm not even sure if
the program is going to continue.... We could have been
around for 15, 20 years. And now, at best 2 or 3
years. . . ." McCabe then resorted to allegory and stated
"You know, we almost had a beautiful, viable baby, and
now we're going to have, if not a dead child, a severely
maimed and crippled child. And it didn't have to be this
way. But the Board of Directors might choose to abort the
baby rather than see it strangled slowly by a Union."
McCabe continued "The Union will destroy the pro-
gram. . . . The Board of Directors will probably resign.
And if the Board of Directors resigns, we may have no
entity with which to administer the program, and we may
lose funding and may cease to exist.""
About noon on June 3, Brown had a conversation with
Administrator McCabe wherein Brown inquired as to
whether there was any substance to rumors that some of
the staff might be laid off. McCabe confirmed that that
likelihood was more than a mere rumor. He told the
employee "Time is running out. It's a matter now of hours,
not days. If you can get the staff to give up the Union
today, jobs can be saved." When Brown questioned him
further as to whether any contracts had been signed that
would affect the tenure of the staff, McCabe declined to
answer and only commented: "I'm not at liberty to say." 12
After this conversation, Brown spoke to several members
of the counseling staff and later that afternoon Supervisor
Bunz arranged for the employees to meet with Chairman
Quinn, as well as several members of the board and
Administrator McCabe. There was a brief exchange
between the board and the employees and then the
employees present asked for a recess to caucus. They then
10 The findings and quotations in this and the preceding paragraph are
from the credible, undenied, and uncontradlcte testimony of Stemert.
Buffa was present at the outset of the hearing, but was never called to the
stand by the Respondent.
11 The findings and quotations in the foregoing are from the credible,
undemed and uncontradicted testimony of Brown.
12 The findings and quotations in this paragraph are from the credible
undemed testimony of Brown
1203
left the room. When they returned a few minutes later, they
reported to the board, according to Brown, that "We were
willing to talk about the possibility of giving up the Union
and keeping all the employees at work. If that was the only
thing that could keep all the people working. . . ." Brown
testified that the employees also promised that in a matter
of 2 days they would come back with an agenda for a
meeting with the board of directors. That evening, and
after the meeting, Nurse Emily DeSimone received a
telephone call from her supervisor, Camille Buffa. Accord-
ing to DeSimone, Buffa told her that "she felt very badly
that the staff did not negotiate with management [that
afternoon] that she felt that we must have known that what
management wanted was for us to give up the Union so we
could keep our jobs." 13
The meeting which the employees contemplated having
with management 2 days after June 3 was never held. As
found earlier, at sometime on June 3, the USPHS notified
the Respondent that it had approved the contract whereby
the USPHS would take over all nursing functions for
Richboro at the Staten Island hospital. On June 4, all of the
Respondent's nurses received notices that they would be
terminated on June 18.14 On the afternoon of that day, as
Brown was leaving his work, McCabe spoke to him.
According to Brown, whose testimony was credible and
undemed, McCabe stated "The nurses are gone now, and
more jobs will be lost unless you can get the staff to give up
the Union. Please try to do everything in your power to get
the staff to . . . give up the Union . . . and ask the Union
to disclaim interest.... " Brown further testified, and
without being contradicted by any subsequent testimony,
that about June 14 McCabe told him "Three times we
almost stopped this Union. And three times you, Dennis,
... kept the people from deserting the union. We are
looking very closely at you now, and you are going to have
to prove that you're working, because we're going to be
watching you very closely."
Prior to June 18 , Richboro used a ward at the USPHS
hospital in Staten Island for patients who were undergoing
detoxification. Richboro's staff had access to the hospital's
laboratories and various other facilities. However, all the
nursing service was performed by Richboro's own staff.
The latter had no connection with USPHS, having been
hired by Richboro and having been paid and supervised at
all times by the Respondent's management. On June 13,
however, all that came to an end when Richboro's contract
with USPHS became effective and thereafter the nursing
service which Richboro's own employees had formerly
performed was thereafter provided in the same ward by
employees of the USPHS.
It was undenied that the Respondent never informed the
Union of its plans to subcontract the work of the nurses or
seek to bargain as to the effect which this drastic change
might have on the members of the nurses' bargaining unit.
In a letter dated June 14, District 1199 requested bargain-
13 The findings and quotations in this paragraph are from Brown's
credible and undemed testimony.
14 The names of the employees who were terminated on the latter date
were- Helen Bracy, Christine DeMarco, Emily DeSimone, Margaret
McPhail, Nancy Stemert, and Betty Young.
1204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing on behalf of the counselors and nurses . Richboro
responded to this request on June 29 . On July 19 a brief
bargaining session was held, but at that time it was agreed
by the parties that any discussion of the nurses would be
held in abeyance until the present proceeding was resolved
by the NLRB.15
C. The Respondent 's Defense
At the hearing the Respondent contended that the
elimination of the nursing unit was necessitated by a
budget cutback forced on Richboro by the New York State
Office of Drug Abuse . The budget year extended from July
I of one year to June 30 of the following year. In its
budgets for the time prior to June 30, 1976, the Respondent
had received funds for expenses that were allocated under
three different headings , viz, administration , outpatient
department, and detoxification services. In the vocabulary
of the budget analysts , these three divisions were known as
"work-scopes" or "modalities ." McCabe testified that in
February he learned that for the fiscal year 1975-76,
Richboro would not be allowed funds for its administrative
work-scope . Other than McCabe's testimony to that effect,
however , there was no corroboration or documentation to
support the claim that he had learned as early as February
of an impending budget reduction . A letter dated May 17,
from the New York State office to the Respondent,
apprised Richboro of the necessity of absorbing adminis-
trative costs under other "work-scopes" in the forthcoming
budget . When the Respondent's budget was eventually
approved , Richboro 's funding was reduced from $572,000
which it received for the fiscal year 1975-1976, to $515,000
for the year 1976-77.
In the budget for 1975- 1976, the amount allocated for
the administrative work-scope had included funds for
payment of the salaries , inter alia, of Administrator
McCabe, his secretary , a medical director , a counselor, a
research evaluator , the comptroller, and the nurses. The
new budget only provided funds for two work -scopes, viz,
outpatient services and detoxification . McCabe acknowl-
edged , however, that almost all of the positions previously
listed in the prior budget under the admimstrative work-
scope were subsequently absorbed by the outpatient and
detoxification work-scopes . Thus, McCabe's own salary is
now being paid out of funds that appear in the budget for
outpatient services, as is the money used to pay his
secretary , the comptroller, and a counselor . Similarly, the
medical director, whose salary in the previous year came
from the administrative work-scope , is now paid with funds
that were allocated in the new budget to the detoxification
work-scope . McCabe conceded that, in effecting the
economies necessary to live within the new budget, it was
only the nursing staff and a few other isolated positions
which were eliminated . It is significant that , notwithstand-
ing the frugality which McCabe asserted had become
necessary , in the current fiscal year , the budget for 1976-77
allowed him to establish a new liaison officer's position at a
salary of $12,000 per annum.16
The Respondent was not directed by the New York State
Office of Drug Abuse to eliminate any personnel . Robert
Carloss, associate contract manager for the New York
State office, was called as a witness for the Respondent.
Carloss , who testified at some length about his various
responsibilities in overseeing the manner in which Rich-
boro expended the funds allocated to it , acknowledged that
at no time during the period in question did the New York
State Office of Drug Abuse order the Respondent to
eliminate any services . Clearly, then , the decision to
eliminate the nurses from the 1976-77 budget was solely a
decision of Richboro.
When on the stand, McCabe conceded that at no time
between April 28 , when the consent election agreement was
signed, and May 18, when the Respondent signed the
contract with USPHS, did he advise Shtob, or any other
union representative that the entire unit of nurses was
being eliminated from the new budget . As found earlier,
subsequent to the election the Respondent gave the nurses'
bargaining agent no notice that it planned to terminate all
those employees in the nursing unit , nor did it apprise
District 1199 of its intentions so as to permit any
bargaining about the effect of such action on the employ-
ees whose jobs it was about to eliminate.
D. The Alleged 8(a)(1) Violations; Findings and
Conclusions in Connection Therewith
The General Counsel alleged a substantial number of
violations of Section 8(a)(1). The evidence offered to
support these allegations was largely undenied or substan-
tially uncontradicted. On the basis of the findings set forth
earlier herein , it is now found that the Respondent engaged
in interference , restraint, and coercion and violated Section
8(a)(1) of the Act by the following actions and conduct of
its supervisory personnel on the following dates: (1) On
April 6, when Administrator McCabe questioned employee
Brown as to the identity of the employees who were
involved in organizational activity . (2) On April 7 and May
26, when Administrator McCabe told employee Brown
that if the employees had only waited 85 days before going
to the Union the staff would have received substantial
raises , promotions and a cost of living increment, and
McCabe's further statement on May 26 that the advent of
the Union would "destroy" the Respondent's drug abuse
program or cause it to be "strangled slowly ." (3) Shortly
after April 9, when Supervisor Lou Bunz questioned
employee Brown as to whether the latter was going to vote
for the Union . (4) On April 7 and on May 3 when
Chairman Quinn told the employees that if the Union won
the election he would resign from the board and that the
other directors very likely would follow his example, in
which event Richboro would probably go out of existence.
(5) On May 3 when Director Gianvito asked that the
employees allow the Respondent a year to resolve their
problems without the Union and then promised that if they
followed this course their complaints would be resolved,
that the nurses ' objections as to pay would be met and that
a grievance procedure would be instituted . (6) On May 3,
15 The charge out of which this case arose was filed on June 11
16 The full -time nurses were receiving annual salaries of from $11,000 to
$12,000
RICHBORO COMMUNITY MENTAL HEALTH COUNCIL
when Administrator McCabe assured the nurses that the
raises which had been promised the preceding January
would be effective with the new budget in July and that "he
would see that the nurses . . . got adequately compensated
and were taken care of...." (7) On June 3, when
Administrator McCabe threatened employee Brown that
only if Brown could "get the staff to give up the Union
today [can] jobs . . . be saved ..." and on June 4, when
McCabe uttered the further threat to Brown and other
employees that was incorporated in his comment "The
nurses are gone now, and more jobs will be lost unless you
can get the staff to give up the Union. Please try to do
everything in your power to get the staff to . . . give up the
Union . . . and ask the Union to disclaim interest... .
(8) On June 14, when Administrator McCabe told
employees Brown that because Richboro held him respon-
sible for having foiled the Respondent's effort to stop the
Union on three different occasions "We are looking very
closely at you now, and you are going to have to prove that
you're working, [for ] we're going to be watching you very
closely," thereby threatening the employee with more
arduous working conditions and discriminatory surveil-
lance . (9) On May 18, when Camille Buffa, supervisor of
nurses, telephoned employee Steinert and told her that the
board of directors was very much opposed to the Union
and that Steinert, whom she knew was supporting the
Union, should reconsider the matter because "our jobs
were in jeopardy, . . . there were not many jobs for drug
abuse nurses . . . you have a family and its cold out
there...." (10) On June 1, when Supervisor Buffa, both
in a telephone conversation and at a meeting later that day,
sought to induce employee Steinert and the other nurses
"to give up the Union" in order to "save our jobs." (11) On
June 3, and after the meeting which the staff had with the
board of directors that day, when Supervisor Buffa
telephoned employee Emily DeSimone and told her that
"she felt very badly that the staff did not negotiate with the
management [that afternoon]" since "she felt that we must
have known that what the management wanted was for us
to give up the Union so we could keep our jobs." (12) The
various statements by Chairman Quinn that if the Union
won the election he would resign from the board and that if
that occurred the rest of the board would also resign,
thereby precipitating the demise of Richboro.
E. The Alleged 8(a)(5) and (3) Violations; Findings
and Conclusions in Connection Therewith
Under normal circumstances an employer cannot unilat-
erally subcontract unit work when such action results in
any detriment to the employees in the unit. Town &
Country Mfg. Co., Inc., 136 NLRB 1022 (1962), enfd., 316
F.2d 846 (C.A. 5, 1963); Fibreboard Paper Products Corp. v.
N.L.R.B., 379 U.S. 203 (1964). The teaching of these cases
is that such action by an employer is a mandatory subject
of bargaining under Section 8(a)(5) and 8(d) of the Act.
Fibreboard, supra at 214. And the employer must provide
the union "an opportunity to bargain over the rights of the
employees whose employment status will be altered by the
managerial decision ." Ozark Trailers, Incorporated, 161
NLRB 561, 563-570 (1966); N.L.R.B. v. Royal Plating and
Polishing Co., 350 F.2d 191, 196 (C.A. 3, 1965).
1205
In this case, the employees had first requested that the
Respondent recognize the Union as their bargaining agent
on April 7. When McCabe declined to do so, the Union
promptly filed a representation petition. Thereafter, and
pursuant to a consent agreement , an election was sched-
uled for May 21. Notwithstanding its full knowledge that a
question concerning representation had arisen, on May 18,
the Respondent signed a contract with the USPHS to take
over all of the unit work which the nurses were performing,
a contract which would not be final until approved by the
USPHS, an approval that was secured on June 3. In the
meantime , the Union won the election and on June 1, it
was certified as the exclusive bargaining agent for the
nurses.
At a meeting with the staff on May 3, Administrator
McCabe told the nurses that raises which had been
promised them in January would go into effect on July 1,
and he assured those employees that "he would see that
... [they] got adequately compensated . . ." He specifi-
cally told DeSimone, one of their number, that a salary
increase which she had been promised "was going into the
[new] budget." At this same meeting, board of directors'
member, Gianvito, similarly assured the nurses that
provisions would be made in the new budget for rectifying
their grievances about pay and hours of work. Immediately
after the Union won the election, however, McCabe and
Supervisor Buffa set about to destroy those results by
threats of discharge and threats that the entire drug abuse
program might be terminated. Thus, McCabe told employ-
ee Brown that if the employees "had only waited 85 days
[until the new budget became effective] . . . The nurses
would have all received their promised raises" and the
entire staff would have been given a cost-of-living incre-
ment. Then, in contrast with that rosy alternative, McCabe
told Brown that as a result of the Union's appearance on
the scene "I'm not sure if the program is going to continue
... ," and then concluded with the prediction "The Board
of Directors might choose to abort [the program] rather
than see it strangled slowly by a Union." In the meantime,
Buffa, the supervisor of the nurses, was actively soliciting
the employees under her to abandon the Union with
threats that their jobs were in jeopardy unless they
reconsidered their vote and their support for District 1199.
On June 1, Buffa told the nurses that she had learned that
the administration was about to terminate the nursing staff
and that their only hope was to meet with McCabe and the
board of directors to persuade them that the nurses would
be willing to "let the union go . . . to save our jobs." On
June 3, Administrator McCabe told Brown that the
employees would have to act swiftly to abandon the Union
in order to save their jobs, that it was then "a matter . . . of
hours, not days." That afternoon the staff met with
McCabe and the board of directors, but did not volunteer
to desert their designated bargaining agent which had been
certified only 2 days before. That evening, Supervisor Buffa
telephoned employee DeSimone to admonish her about
this development and to chide DeSimone that the nurses
"must have known that what management wanted was for
us to give up the Union so we could have our jobs." The
very next day the nurses received notices of termination.
That afternoon McCabe told Brown "The nurses are gone
1206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
now, and more jobs will be lost unless you can get the staff
to give up the Union ," thus making clear to Brown that
unless the counselor 's heeded McCabe's advice the axe
might soon fall on their unit as well.
It is now found that there is no merit to the Respondent's
contention that it was forced to terminate the nursing unit
because of budgetary considerations . Notwithstanding the
elimination of the administrative work-scope in the new
budget , the Respondent was able to adjust its fiscal plans
so as to save the jobs of almost all the others in that work-
scope with the exception of the nurses, and even to create a
new position , that of liaison officer at $ 12,000 a year. On
the findings set forth above , it is now found that the
Respondent completely rejected any responsibility to
bargain collectively with the Union as the duly designated
bargaining agent for the nurses . After District 1199 won
the election , McCabe set out on a campaign of threats and
promises to induce the nurses to abandon their elected
representative . When that failed, he carried out his threats
by subcontracting out their work and discharging them. On
this record , I conclude that the Respondent 's concealment
of its pending transaction with USPHS during the period
when it was obligated to bargain with the Union consti-
tuted bad faith that prevented District 1199 from bargain-
ing over the effects which the termination of nursing
service would have on the unit members. In so doing the
Respondent violated Section 8(a)(5) and (1) of the Act.
Moreover, on the basis of the well-documented antipathy
of the Respondent for the employees ' choice of a
bargaining agent , it is now found that the Respondent's
action in terminating the nurses after they declined to
abandon the Union constituted a violation of Section
8(a)(3) and (1).
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce and the
Union is a labor organization , all within the meaning of the
Act.
2. All full-time and regular part-time registered nurses
employed by the Respondent, exclusive of all other
employees , casual employees , guards and supervisors as
defined in Section 2(11) of the Act, constitute an appropri-
ate unit for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act.
3. At all times material herein the Union has been the
exclusive collective-bargaining representative of the Re-
spondent 's employees in the aforesaid unit within the
meaning of Section 9(a) of the Act.
4. By refusing, since May 21, 1976, to bargain collec-
tively in good faith with the Union as the exclusive
representative of its employees in the aforesaid unit, by
unilaterally subcontracting the work of the nurses to the
United States Public Health Service and laying off all
members of the above-described unit without reference to
the Union , the Respondent has engaged , and is engaging,
in unfair labor practices within the meaning of Section
8(a)(5) of the Act.
5. By discriminatorily laying off Helen Bracy, Christine
DeMarco, Emily DeSimone , Margaret McPhail, Nancy
Steinert, and Betty Young on June 18, 1976 , the Respon-
dent has engaged in, and is engaging in, unfair labor
practices within the meaning of Section 8(a)(3) of the Act.
6. By interfering with, restraining , and coercing its
employees in the exercise of rights guaranteed in Section 7
of the Act, the Respondent has engaged , and is engaging,
in unfair labor practices within the meaning of Section
8(a)(1) of the Act.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, it will be recommended that
the Respondent be ordered to cease and desist therefrom
and that it take certain affirmative action designed to
effectuate the policies of the Act.
At the hearing the General Counsel requested that a
remedy similar to that in Transmarine Navigation Corpora-
tion and its Subsidiary, International Terminals, Inc., 170
NLRB 389, 390 ( 1968), be granted . There is merit to this
position. Here, as in that case, because of the Respondent's
concealment of its intention to eliminate the nursing unit,
the affected members of the unit have been denied an
opportunity to bargain about the effects of the Respon-
dent's subcontracting their work to the USPHS . The unit
has now been dissipated and any action taken by the
Union will not likely have any economic impact . Conse-
quently, in order to assure some measure of meaningful
bargaining to the Union, the type of remedial order
adopted by the Board in Transmarine and related cases,17
will be recommended here. Thus , the Respondent shall pay
the nurses backpay, at the rate of their normal wages when
last in the Respondent 's employ , from June 18, 1966, the
date of their termination by the Respondent, until the
occurrence of the earliest of the following conditions: (1)
the date the Respondent bargains to agreement with the
Union on those subjects pertaining to the effects on the
nursing unit of the subcontracting of the nurses ' work to
the United States Public Health Service; (2) a bona fide
impasse in bargaining ; (3) the failure of the Union to
request bargaining within 5 days of this Decision, or to
commence negotiations within 5 days of the Respondent's
notice of its desire to bargain with the Union; or (4) the
subsequent failure of the Union to bargain in good faith;
but in no event shall the sum paid to any of these
employees exceed the amount she would have earned as
wages from the date on which the Respondent terminated
its operations to the time she secured equivalent employ-
ment elsewhere, or the date on which the Respondent shall
have offered to bargain , whichever occurs sooner ; provid-
ed, however, that in no event shall this sum be less than
these employees would have earned for a 2-week period at
the rate of their normal wages when last in the Respon-
dent's employ.
» Walter Pape, Inc, 205 NLRB 719, 720-721 ( 1973), Interstate Tool Co.,
Inc, 177 NLRB 686, 687-688 (1969)
RICHBORO COMMUNITY MENTAL HEALTH COUNCIL 1207
In view of the nature and extent of the unfair labor rights of its employees to enjoy the statutory guarantees of
practices which the Respondent has committed, it is also self-organization.
recommended that the Respondent be ordered to cease [Recommended Order omitted from publication.]
and desist from interfering in any other manner with the