Richboro Community Mental Health Council

National Labor Relations Board - Board Decisions

Jun 19, 1979

242 N.L.R.B. 1267 (N.L.R.B. 1979)

RICHBORO COMMUINITY MENTAL HEALTH COUNCII_
Richboro Community Mental Health Council, Inc. and
District 1199, National Union of Hospital and
Health Care Employees, Retail, Wholesale and De-
partment Store Union, AFL-CIO. Case 29 CA
5289
June 19. 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBFRS JE.NKINS
AND TRUESDAI.
On December 29, 1978, Administrative Law Judge
Russell M. King, Jr., issued the attached Decision in
this proceeding.' Thereafter, the General Counsel
filed exceptions and a supporting brief.
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 brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.
1. In adopting the Administrative Law Judge's
conclusion that the Board has jurisdiction over Re-
spondent, we do not rely on his application of our
decision in Teledyne Economic Development Company,
223 NLRB 1040 (1976), to the merits of Respondent's
substantive jurisdictional contention, but rely instead
on our reasoning in The Singer Company, Education
Division, Career Systems, Detroit Job Corps Center,
240 NLRB 965 (1979), which specifically overruled
Teledyne.
2. Contrary to the Administrative Law Judge, we
find that Respondent violated Section 8(a)(1) of the
Act by denying one of its employees, Jack R. Palu-
szek, a promotion because of statements in a letter
which he drafted and distributed in protest of Re-
spondent's discharge of a fellow employee. Paluszek
was a strong supporter and a member of District
1199, which is the collective-bargaining representa-
tive for Respondent's employees. On November 8,
1976, Paluszek sent a letter to the head of the Na-
tional Institute on Drug Abuse (which is the Federal
funding source for Respondent), with copies to offi-
cials of Respondent's state funding source, a United
States Congressman, a local newspaper, and Respon-
I As indicated in the attached Decision. the parties at the hearing entered
into a settlement stipulation providing for a Board order and consent judg-
ment on all issues except those raised by pars. 5. 13. 14. 15. 16. and 18 of the
amended complaint. By order dated November 10 1977. the Board ap-
proved the parties' settlement stipulation. Thus. our Decision toda' disposes
of the remaining aspects of this case.
dent. The letter protested the discharge of a fellow
employee. Brown. and contended that. despite
Brown's invaluable service, Respondent fired him be-
cause of his union activities. Subsequently, Paluszek
was denied promotion to the supervisory position of
associated clinical coordinator.
Although the Administrative Law Judge acknowl-
edged that Paluszek's complaint with regard to
Brown's discharge. standing alone. constituted pro-
tected activity, he nevertheless concluded that Palu-
szek's subsequent statements in the letter reflected a
basic disloyalty to Respondent and. thus, were unpro-
tected. The latter statements were:
This the Brown] matter, in m) opinion, is repre-
sentative of a course of events initiated and car-
ried out by the administration of the Richboro
program. which has signified a decrease in the
quantity and quality of service to clients. It is
also my strong opinion that the persons directly
responsible for this decline in service are Mr.
John Quinn, Chairman of the Board and Mr.
Terence McCabe, Administrator.
I trust that you will take this matter into your
immediate and personal concern. I also request
that the Richboro administration be held ac-
countable to the Staten Island community
through its representative to Congress, the Hon-
orable John Murphy.
The Administrative Law Judge found that these com-
ments were disloyal for the following reasons: The
offending comments did not refer to a labor dispute
and were merely a personal attack on Respondent;
the letter was drafted on Respondent's letterhead
without permission; and the letter was addressed to
Respondent's funding sources, thus publicizing criti-
cism of Respondent in a manner which potentially
threatened Respondent's continued existence. Since
the Administrative Law Judge found that the state-
ments in the letter. which he concluded were unpro-
tected, were the sole reason that Respondent denied
Paluszek a promotion. the Administrative Law Judge
dismissed the allegation that the failure to promote
Paluszek was unlawful.
We conclude that the Administrative Law Judge
erred in finding that Paluszek's criticism of Respon-
dent's operations was unprotected and, thus, consti-
tuted a lawful cause for Respondent's failure to pro-
mote Paluszek. It is undisputed that, by drafting and
distributing a letter protesting Respondent's dis-
charge of a fellow employee, Paluszek was engaging
in protected activity. Although we have recognized
that such protected activity may be rendered unpro-
tected when 'the attitude of the employees is fla-
grantly disloyal. wholly incommensurate with any
grievance which they may have, and manifested by
public disparagement of the emploser's product or
242 NLRB No. 174
1267
DECISIONS OF NATIONAL LABOR REILATIONS BOARD
undermining of its reputation,"2 such is hardly the
case here.
Contrary to the Administrative Law Judge's char-
acterization, Paluszek's criticism of Respondent was
not a personal attack unrelated to his protest of Re-
spondent's labor practices) Even the opening phrase
of the paragraph containing the statements that the
Administrative Law Judge found disloyal indicates
that Paluszek's criticism of Respondent's operations
originated with, and was made in the context of, his
complaint with respect to his fellow employee,
Brown. Paluszek's reference to the general deteriora-
tion in the quality of Respondent's operations merely
supported his specific contention in the opening para-
graphs of the letter that Respondent's discharge of a
valuable employee because of his union activities had
irresponsibly undermined Respondent's program.
Nor did this means of supporting his protest of Re-
spondent's labor practices involve such impropriety
or disloyalty as independently to provide just cause
for Respondent's discipline of Paluszek. Paluszek's
appeal is clearly distinguishable from the type of pub-
lic disparagement of an employer's product which the
Board has found unprotected. 4 In those cases, the dis-
paragement was calculated to alienate the public's
patronage as a tactic to increase the employees' lever-
age in the labor dispute.5 Paluszek's comments cannot
be construed as a deliberate attempt to injure Re-
spondent by impugning its operation.6 Rather, the
clear purpose of his letter was to remedy Respon-
dent's discharge of Brown. There is nothing in the
letter to suggest that Paluszek's intent was to sabotage
or undermine Respondent's reputation.7 Its tone was
neither malicious nor did it ridicule Respondent.8 Nor
is Paluszek's distribution of the letter to Respondent's
funding sources evidence of unprotected disloyalty to
Respondent since, absent a malicious motive, Palu-
szek's right to appeal to the public is not dependent
on the sensitivity of Respondent to his choice of fo-
rum.9
Under these circumstances, we conclude that Palu-
szek's criticism of Respondent's operations involved
protected conduct as it was part of and related to
2 Veeder-Roo Company, a Division of West Pacific Industries, Inc., 237
NLRB 1175 (1978), citing Firehouse Restaurant, 220 NLRB 818 (1975).
'See, generally, Springfield Library and Museum Association, 238 NLRB
1673 (1978).
4Compare The Patterson-Sargeant Compauny, I 15 NL.RB 1627 (1956).
See N.L.R.B. v. Local Union No. 1229, International Brotherhood of Elec-
trical Workers, A.FL. Jefferson Standard Broadcasting Company]v, 346 U.S
464, 476-477 (1953).
6 The National Institute on Drug Abuse did not understand the letter as
such since it responded that it had nojurisdiction in the dispute and that the
issue was one between Respondent and the person discharged.
'7 Compare Community Hospital of Roanoke Vallev. Inc., 220 NLRB 217
(1975), enfd. 538 F.2d 607 (4th Cir. 1976), with Firehouse Restaurant upru
'Compare American Arbitration Association, Inc., 233 N.RB 71 (1977).
9 See St. Josephs High School, 236 NLRB 1623 (1978).
Paluszek's concededly protected protest of Respon-
dent's discharge of a fellow employee and was not so
extreme as to reflect a disloyalty to Respondent. °0 We
also conclude, based on the Administrative Law
Judge's finding which was not excepted to by Respon-
dent, that Paluszek's comments in the letter were the
sole reason that Respondent denied him a promotion
to associate clinical coordinator in April 197711 and
thereafter. Accordingly, we find that Respondent vio-
lated Section 8(a)(1) of the Act by denying Paluszek a
promotion to associate clinical coordinator in April
1977 because of the letter he had written in Novem-
her 1976.12
TItu RMELDY
Having found that Respondent interfered with, re-
strained, and coerced Jack R. Paluszek in the exercise
of his Section 7 rights by denying him promotion to
the position of associate clinical coordinator in April
1977
3 and thereafter, we shall order that Respondent
cease and desist therefrom and take certain actions
intended to effectuate the policies of the Act. We shall
order Respondent to offer to promote Jack R. Palu-
szek to the position of associate clinical coordinator
or, if that position no longer exists, to a substantially
equivalent position, effective April 1977, replacing if
necessary any employee who may occupy the position
to which Paluszek should have been promoted,' 4 and
to make him whole for any loss he may have suffered
10 See S. Joseph's High School, supra, Golden Day Schools, 236 NLRB
1292 (1978); N.L.R.B. v. Oners Mainenance Corp., 581 F.2d 44 (2d Cir.
1978), enfg. 232 NLRB 100 (1977).
In finding that Paluszek was not promoted because of the remarks in his
letter of November 8, the Administrative Law Judge did not specify the date
on which the denial of promotion occurred. Our examination of the record
convinces us that the promotion in question is the one that was given to
employee Scarr sometime in April 1977. This conclusion is supported by the
record evidence indicating, inter alia. That this particular promotion was
posted: that Paluszek applied for and was interviewed for the position; that
Respondent's administrator acknowledged that Paluszek would have made a
good supervisor and that his opinion of Paluszek's potential for such a posi-
tion changed after the letter; that, according to Paluszek's supervisor, Palu-
szek was more qualified and had greater seniority than Scarr;: that Respon-
dent's administrator had admitted to Paluszek's supervisor that the letter
finished Paluszek's chance of becoming a supervisor; and that, in discussing
the letter with Paluszek, Respondent's administrator stated that he could not
seriously consider Paluszek for a supervisory position because of his action,
i.e. the letter, which caused harm to the agency.
Although there were two earlier openings for associate clinical coordina-
tors after the November 8 letter, Paluszek neither applied for those openings
nor protested their award as he did in the case of Scarr's promotion.
1S We find it unnecessary to address the General Counsel's exception to the
Administrative Law Judge's failure to find that Respondent's denial of a
promotion to Paluszek was also in retaliation for Paluszek's membership in
and activity on behalf of the Union and thus was in violation of Sec. 8(a3)
of the Act since the remedy would be the same should we find the additional
siolation.
"1 The exact date, if available, should be determined in the compliance
stage of this proceeding and should be based on the effective date of em-
ployee Scarr's promotion.
"4 See ittle Lake Industries, Inc., 233 NLRB 1049 (1977)., where the Board
ordered the employer to offer a promotion to the supervisory position of
foreman in order to remedy its discriminatorily motivated denial of that
promotion to an employee.
1268
RICHBORO (COMMUINI Y MENTAL. IALTH (OUNCIL
by reason of Respondent's flailure to promote him in
April 1977. with backpay computed in the manner set
forth in F. . Woolorth C(ompatnv. 90 NLRB 289
(1950). and with interest to be computed in the man-
ner set forth in Florida Steel Corporation, 231 NLRB
651 (1977). 15
Furthermore, as Respondent has demonstrated a
proclivity to violate the Act as evidenced by our prior
findings against Respondent reported in 228 NLRB
1198 (1977), we shall order Respondent to cease and
desist from infringing in any other manner upon the
rights guaranteed by Section 7 of the Act.
ANENDI) CO)N(I'USIONS OF LA'V
Substitute the following for Conclusions of Law 3
and 4:
"3. By denying Paluszek a promotion in April
1977 and thereafter, because he engaged in the pro-
tected concerted activity of protesting Respondent's
labor practices, Respondent committed an unfair la-
bor practice within the meaning of Section 8(a)(1) of
the Act.
"4. The unfair labor practice found herein affects
commerce within the meaning of Section 2(6) and (7)
of the Act."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that the Respondent, Rich-
boro Community Mental Health Council, Inc., Staten
Island, New York, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Refusing to promote employees because of
their protected concerted activities.
(b) In any other manner interfering with, restrain-
ing, or coercing its employees in the exercise of their
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action to effectu-
ate the policies of the Act:
(a) Offer to promote Jack R. Paluszek to the posi-
tion of associate clinical coordinator or, if that posi-
tion no longer exists, to a substantially equivalent po-
sition, effective April 1977, and make him whole for
any loss of pay he may have suffered by reason of its
discrimination against him, as provided in "The Rem-
edy."
(b) 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
" See. generall. Isis Plumbing & Heating. Co. 138 NLRB 716 (1962).
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(c) Post at its Staten Island, New York. facilities
copies of the attached notice marked "Appendix."
Copies of said notice. on forms provided by the Re-
gional Director for Region 29, after being duly signed
by Respondent's authorized representative. shall be
posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places. including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered. de-
faced, or covered by any other material.
(d) Notify the Regional Director for Region 29, in
writing, within 20 days from the date of this Order.
what steps the Respondent had taken to comply here-
with.
b In the event that this Order is enforced b ajudgment of a United States
Court of Appeals. the words in the notice reading "Posted b) Order of the
National anbor 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
NAtIONAT LABOR RELATIONS BOARD
An Agency of the United States Government
Following a hearing at which all parties had an op-
portunity to present evidence and cross-examine wit-
nesses, the National Labor Relations Board has
found that we violated the National Labor Relations
Act, as amended, and has ordered us to post this no-
tice:
The National Labor Relations Act gives all em-
ployees the right:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To engage in activities together for the pur-
pose of collective bargaining or other mutual
aid or protection
To refrain from the exercise of any or all
such activities.
Accordingly, we give you these assurances:
WE WI,1L. Not- refuse to promote employees be-
cause of their protected concerted activities.
WE W!.l. NOt in any other manner interfere
with. restrain. or coerce our employees in the ex-
ercise of their rights guaranteed in Section 7 of
the Act.
1269
I)E('ISIONS OF NATIONA. ILABO)R REI.ATIONS BOARD
WE wili. offer to promote Jack R. Paluszek to
the position of associate clinical coordinator or.
if' that position no longer exists, to a substantiallk
equivalent position, effective April 1977.
WE Wil.l. make Jack R. Paluszek whole for
any loss of wages suffered as a result of our dis-
crimination against him, with interest.
RlI(CIBO()R( C()MMUNIIY MENIAA HFAI III
COtN(II. IN(.
D)ECISION
SIAII:MI:NI ()f ilt. (CASt
Russil.l M. KIN(;, JR.. Administrative aw Judge: This
case was heard by me on 9 various days' in July. August
and September of' 1977 in Brooklyn, New York. The initial
charge was filed by the Union on November 3, 1976). and
an amended charge was filed on December 16. The original
complaint was issued on December 27 and alleged im-
proper threats and interrogation in violation of Section
8(a)(I) of the National abor Relations Act (the Act), and
the improper discharge of' employee Dennis A. Brown on
October 21 because of protected union actiS it in violation
of Section 8(a)(3) and (4) of the Act. During the trial var-
ious amendments to the complaint were granted. the most
significant of which involved additional violations of Sec-
tion 8(a)(3) and (4) of the Act relative to the failure to
promote employee Jack R. Paluszek because of' his pro-
tected union activities. Near the end of' the trial and on
August 17. 1977, that portion of the case involving all in-
dependent violations of Section 8(a)( I) of' the Act and the
discharge of employee Brown in violation of Section 8(a)(3)
and (4) of the Act was settled by all parties, a lengthy stipu-
lation was entered into, and formal Board approval was
recommended and requested.4 Thus there now remains in
this case two issues, that of jurisdiction. and the alleged
discrimination against employee Paluszek.'
FINDIN(iS ()o FA(CI
1. JURISI)I(I ION
Respondent contests jurisdiction in the case although it
has admitted the Board's jurisdiction in other previous
t Of the 9 days of hearing of the case. Michael Schnipper attended two
mornings fJuly 7 and August 16. 1977). Schnipper also signed the amended
charges in the case, hut filed no post-trial brief District 1199 union organizer
Eric Shohb was also present and testified the morning of July 6. and was
present August 16.
2The page numbering of the record (approximately 1500 pages) skips
sequence, which is due no doubt to the fact that no less than six diflerent
reporters contributed to the record at various limes.
All dales hereafter are in 1976 unless otherwise indicated.
'Having received no knowledge to the contr:ry. it is presumed that the
Board approved the settlement.
Respondent preserved its right to contest jurisdiction not only at the
outset. but after the Brown portion of the case was settled. Notwithstanding
this fact. I have treated the jurisdictional issue ' ith seriousness and indepen-
dence, and it has proven to be the more difficult of the to remaining issues.
cases.' Respondent moved that it be allowed to make a
record and litigate the question of jurisdiction in this case
based on the Board's holding in T7il'h'd-r Ec,,omic Ievrel-
ope,,lnt (ompanlt. 223 NLRB 1040 (1976). 'I he General
Counsel opposed the motion, after which I agreed to allow
jurisdictional eidence and the matter was fully litigated. I
reserved ruling on the use and status of' the jurisdictional
evidence and the entire question of jurisdiction and chose to
handle the issue in this Decision. Notwithstanding Respon-
dent's earlier admissions of jurisdiction in earlier Board liti-
gation. ' jurisdiction goes to the actual statutory ability of
the Board to hear and determine the issue. Its admission in
separate and previous litigation belfore the Board does not
constitute et'e j/udicat and bar its challenge in subsequent
litigation. The issue wvas properly raised in this case and I
shall dispose of it on the evidence and merits.
Respondent's corporate status. its business and purposes.
and its finances were not the subject of controversy in this
case." Respondent is a not-for-profit corporation organized
I In the consolidated Cases 29 R' 3374 (registered nurses) and 29 RC
3373 (ther professional employees), representation petitions were filed April
9. 1976; agreements fir consent electiolns were entered into; and an election
,as held on May 21. 1976. Both unit elections were held on May 21. 1976.
the petitioning union (the Charging Union in this case) on in both units.
anid w.is certified by the Board on June 1. 1976. 'the Board also Iound
jurisdiction, as admitted. in R, hho)r, ('rnru,lur n lental leulth ( unmil
In . 228 NLRB 1198 1977). In these earlier cases. Respondent was not
represented by an attorney.
' In li'e(dne (Case 6 RC 6993). at the hearing the emploher objected to
the Regional )irector's assertion of jurisdiction, but withdrew the objection
prior to the issuance of the Regional )irector's decision Ihereafter. it re-
newed itsjurisdictional objection and moved the Reginal Director to recon-
sider his decision to assert jurisdiction The motion was denied. the petition-
ing union was certified. and the employer appealed to the Board. In granting
the appeal and reversing the Regional Director, the Board noted that the
matter had been fully litigated and the Regional Director did not base his
substantive determination to assert jurisdiction n o n analysis of the record
In light of current precedent, but rather upon reliance on two cases where the
Board had asserted jurisdiction oUer a different employer but engaged in
operations similar to those involved in 7eled ne In those to cases. jurisdic-
tion had not been contested I he Board went on in 7i'edi ne. considered the
merits. and found in tact (as is urged by Respondent herein) that a govern-
mnient agency (the IS. Department of Labor) so controlled and circum-
scribed the labor relations policy of the employer to a degree which pre-
vented the employer Irom exercising the necessary independent judgement to
effectivelN bargain in good faith as to wages and other working and employ-
ment conditions. and that thus the employer shared said agenci's exemption
from the Act. Respondent, in its brief' herein. implies that the term "earlier
proceedings." as used in Teledvne, referred to previous and separate cases
ins.olving the same employer. Such was not the case.
t Io this extent. Respondent's motion was granted.
' Respondent. in its brief, appears to further imply that jurisdiction is
contested in this case. as opposed to the other previous cases. because of the
"lecent Board" precedent" of ,'eircdne. supra In this regard it is noted that
the Board issued Teledtn' April 23. 1976. Agreements for consent elections
In the presious representation cases were not entered into by Respondent
until on Ma> 5, 1976. and the earlier Richbor, case t228 NLRB 1198) was
heard August 30 31. 1976.
it Pars. I through 4 of the complaint allege these matters. Par. 5 of the
complaint in turn simply alleges that Respondent is engaged In commerce
within the meaning of the Act. Respondent's answer does not address pars. I
through 4 of the complaint and simply denies par. 5. Under Sec 102.20 of
the Board's Rules and Regulations, any "facts" alleged in the complaint and
not specifically addressed in the answer shall be deemed admitted and true.
I conclude that indeed this was the intent of Respondent in this case, not-
wlthstanding the more than sufficient amount of documentar y and testimo-
nial evidence In the record substantiating the basic jurisdictional allegations
contained in pars. I through 4 of the complaint. By denying nly par. 5 of
the complalint. Respondent still preserves the thrust of its urisdictional de-
tense that i is dominated b state control and thus impotent to sufficlentl)
and adequateli bargain with the nion
1270
RICHBORO COMMNI TY MENTAI. HEALTH COUNCIL
under the laws of the State of New York. It 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 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 places of business in New York City, New York, goods
and materials valued in excess of $50,000, which were
transported and delivered to said places of business in inter-
state commerce directly from States other than the State of
New York.
Respondent urges, in effect, that an agency of the State of
New York so controls and circumscribes the labor relations
policy applicable to its employees to a degree which pre-
cludes it from exercising the necessary independent judge-
ment to effectively bargain in good faith with the Union as
to wages and other working and employment conditions. its
the Board found in Teledvlne, supra.'' A review of previous
Board cases makes it apparent that a detailed examination
of the record to ascertain the nature and extent of the con-
trols present and imposed in this case is necessary in deter-
mining the issue here.l2
Respondent is a nonprofit corporation providing, in the
main, free counseling, medical care, and vocational reha-
bilitation services for present and former drug addicts. It
receives all of its funding from the Office of Drug Abuse
Services of the State of New York (hereinafter referred to as
ODAS).' which in turn is partially funded by the National
Institute of Drug Abuse (hereinafter referred to as NIDA).
a branch or agency of the United States Department of
Health, Education and Welfare (HEW)." The basic con-
tract between ODAS and Respondent is a multipart,
lengthy, and complex document several inches thick. It con-
tains not only New York State provisions, but Federal
" In Teledvne, supra. the United States Department of Labor (DOL) con-
tracted directly with the employer, a for-profit private corporation, to oper-
ate two job corps centers on a cost-plus-fixed-fee basis. The Board enumerat-
ed 13 separate categories of controls in finding that DOL exercised a
sufficient degree of control over the employer's labor relations policies so as
to share DOL's exemption from the Act.
1 The Board has frequently declined to assert jurisdiction, as in Teledyne,
supra, over employers who were controlled in varying degrees by other or-
ganizations or governmental departments which were exempt from the Act
See Young Women's Christian Association of Metropolitan Chicago. 221
NLRB 262 (1975): Current Construction Corp and Samuel M. Wagner, 209
NLRB 718 (1974); The Wackenhut Corp., 203 NLRB 86 (1973): Slater Cor-
poration, 197 NLRB 1282 (1972); The Horn & Hardart Comparn, 154 NLRB
1368 (1965); The Prophet Co.. 150 NLRB 1559 (1965); Crottl Brothers, N Y.
Inc., 146 NLRB 755 (1964). Cf. Atlas Guard Service, 237 NLRB 1067 (1978).
Lutheran Welfare Services of Illinois. 216 NIRB 518 (1975); We Transport.
Inc.. and Town Bus Corp.. 215 NLRB 497 (1974); Barrv Industries. Incorpo
rated. 181 NLRB 1003 (1970); Yosemite Park and Currv Co., 172 NLRB
1740 (1968): Herbert Harry Inc.. 171 NLRB 238 (1968); American Smelting
and Refining Company. 92 NLRB 1451 (19;I): N.L.R B v. E. C Atkins &
Company. 331 U.S. 398 (1947).
l) The documentary evidence reflects that this New York State agency is
actually the "Drug Abuse Control Commission," with whom Respondent
actually contracted. This Commission was commonly known as or called
ODAS throughout the record in this case.
1' Respondent could continue its operation under its present form and
structure without such funding provided sufficient funds or contnbutions
from other sources were obtained. However, I do not consider this fact is
significant in this case as what must be dealt with here is what does exist, and
not what could exist.
(H EW) provisions, all covering a multitude of subjects and
often overlapping, inconsistent, or conflicting one another."
However, it is clear from the outset that Respondent is "an
independent contractor and not . . . an agent of the Federal
Government or of the state of New York . . .". and is fur-
ther required, on its own, to furnish "facilities materials,
services, and qualified personnel" fior treatment and reha-
bilitation of drug dependent persons.' Respondent is also
required under the contract to carry adequate liability and
workman's compensation insurance. and to inform "each
labor union" or representative of workers with which it is
bound by a collective-bargaining agreement, a notice in-
firming such union or representative of the "non-discrimi-
nation clauses" contained in the contract. The personnel
standards clause of the contract vests in Respondent the
obligation and responsibility to determine and insure that
all personnel (employees) are "personally and profession-
ally" qualified." NI[)A itself, in Washington, D.C.. and in a
written response to employee Paluszek's letter of complaint
over employee Brown's discharge, indicated it had "no ju-
risdiction in the dispute", suggesting that the matter was
"essentially an issue between the [Respondent] and [Brown]
who was dismissed.""
The control exerted by ODAS (New York State) over
Respondent was in the budget only, and here only in a
general sense. Respondent's organization was by divisions
known as "work scopes" or "modalities." In addition to the
"Administration" work scope, at various times there also
existed the work scopes of "Outpatient Drug Free," "De-
toxification Unit," and "Institutional Hospital Services."
These work scopes themselves would also contain various
branches or smaller divisions, and Respondent, in prepar-
ing and submitting its budget to ODAS, would assign var-
ious amounts to a multitude of line items starting with the
lowest of branches or divisions and terminating upward to
four or five complete work scope budgets which, when com-
bined, would result in the entire budget for a given period
(usually 6 months). Budgeting cuts or increases were appar-
ently substantial enough fr a given period so as to result in
the abolition or addition of most (if not all) of an entire
work scope. However, the figures themselves, including the
numbers, catagories, and salaries of employees, were in the
sole ultimate discretion of Respondent. Such discretion ap-
iS It would be impossible to run any company or organization, large or
small. on the basis of this contract and be anywhere in near compliance with
the same. I sadly suspect. however, that this situation is far from rare or
unique in these days and times. Nor would it be possible for these govern-
mental bodies to monitor compliance effectively. much less understand what
it is that they are monitoring The many hours I spent in reading and at-
tempting to digest the contract were almost completely wasted and lead me
to the brink of oblivion.
' Art. I. sec A of Respondent's contract with ODAS. Hereinafter. the
term "contract" used herein shall refer to this contract unless otherwise indi-
cated.
a Article IV. This clause further and curiously requires Respondent to
submit a resume containing experience and qualifications for each profes-
sional person to be assigned to treatment functions under the contract. No
rejection or other power or authority is mentioned or retained. No such
resume has ever been "disapproved."
IR Employee Palu.zek's letter was to Dr. Robert Dupont of NIDA and
dated November 8, 1976. This letter and the reply from Deputy Director
Karst J. Bertteman of NIDA were both admitted into evidence Paluszek's
letter will be discussed in some length later in this Decision when the allega-
tions of the complaint nvolsing Paluszek are considered.
1271
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pears onlb to have been limited either by the types of re-
quired services under the contract, or hb the overall mone-
tar) resource pool either on hand (or projected to he on
hand) at ODAS.' 5 Salary levels and increases were set by
Respondent in budget submissions to ODAS. This financ-
ing arrangement resulted, on occasion, only in the con-
straint or control of time, aside from the overall impact of
the amount and availability of funds."? Virtually all day-to-
day working conditions. including facilities, hours. equip-
ment, and fixtures. were under the direct and sole control of
Respondent, subject only to overall confinement to the ex-
isting budget.
In summary, I can find only three significant areas or
control actors imposed over or on Respondent by ODAS.
The first involves the contractual provisions (some state and
some Federal) pertaining to the type and manner of services
to be administered to Respondent's patients or clients. The
second deals with the nondiscrimination (in hiring) clauses
in the contract, and the third involves the overall budget or
monetary system. These factors or controls. in my opinion
in this case. do not and did not constitute sufficient intru-
sions or restrictions on Respondent's functions. authority.
and contractual responsibilities so as to impute ODAS im-
munity under the Act to Respondent under the holdings of
Teledyne, supra, and other related authorities. I did not in-
tend to use a broad brush to paint the record in this case.
The contrary was intended. but after many hours of tedious
searching through the record in this case it finally became
obvious that the record just does not permit a significant
itemization in support of a contrary conclusion.
Thus. I find and conclude that the Board does have juris-
diction over Respondent in this case and that Respondent is
an employer engaged in commerce within the meaning of
Section 2(2), (6). and (7) of the Act.
I further find, as admitted by Respondent during the trial
of this case, that the Charging Union (District 1199) is a
labor organization within the meaning of Section 2(5) of the
Act.
II. THE ALLEGED UNFAIR LABOR PRACTICE
Alleged Discrimination (Failure to Promote) Against
Paluszek"
Jack R. Paluszek was employed by Respondent in No-
vember 1975 as a "counselor" or "mental health profes-
1, Budget cuts resulted when funds were low and involved either the least
needed work scope or one from which the least benefits or productivity were
obtained. On occasion, new methods were found and sanctioned, or missions
were switched from one work scope to another. The more significant changes
usually required slight modifications to the original contract.
20 Each succeeding budget served as an extension of the original contract.
together with occasional and newly required provisions usually necessitated
by budget changes.
2l The frequency and detailed nature of the budget (down to the last pen-
cil) gave rise to the necessity of constantly and daily planning for and work-
ing on the next succeeding budget. Notwithstanding, there were periods of
several weeks where Respondent was functioning actually without funds.
However. these delays were bureaucratic and although burdensome and in-
convenient, they were always temporary.
22 As indicated earlier, the original complaint did not contain alleged vio-
lations of the Act concerning employee Paluszek. The complaint was
amended long after the commencement of the case to add the Paluszek
allegations to the original allegations involving only employee Dennis
signal." He was a member and strong supporter of the
Union (District 1199) and this fact was known by Respon-
dent. Paluszek also having testified essentially against Re-
spondent in an earlier and unrelated unfair labor practice
case in August 1976.1 Paluszek had also strongly objected
to employee Brown's discharge on November 5.24 and on
November 8 Pluszek drafted and forwarded a letter, on
Respondent's letterhead, to Dr. Robert Dupont as (then)
head of' the National Institute of Drug Abuse (also herein
referred to as NIDA) in Washington. D.C.. complaining of
Brown's discharge, and further complaining of Respon-
dent's service to clients and its administration by its chair-
man of' the board and its administrator."
My initial impressions of the Paluszek portion of this case
have remained the same, even after a close reading of the
record and a review of the applicable authorities. A promo-
tion would have raised Paluszek to supervisory status as an
"associate clinical coordinator." I find that the sole reason
for Paluszek's failure to be promoted was the remarks in his
letter of November 8 regarding Respondent's administra-
tion and its quality of service.6 Drafted on Respondent's
Brown. Later settlement negotiations between the parties inolved possible
settlements concerning both employees. but resulting in settlement of only
the Brown portion of the case. Although Brown was discharged. Paluszek
remained employed by Respondent. Both Brown and Paluszek were active
union members and supporters. Respondent objects to the Paluszek amend-
ments on the ground that the alleged violations occurred beyond the Sec.
10(b) period set out in the Act. 6 months prior to the filing of the charge.
This objection is so plainly without merit that it deserves little attention. The
initial charge was filed on November 3. The amendments allege continuing
violations commencing on or about November 30,
"2 Case 29-CA-5054 (228 NLRB 1198). This case involved the discharge
of six of Respondent's female nurses, and the refusal of Respondent to bar-
gain with District 1199. The findings and conclusions in this previous case.
together with additional creditable evidence in the record of this present
case, support my finding of continued antiunion attitudes or "animus" on the
part of Respondent.
14 Respondent's defense (before settlement) to Brown's discharge was bud-
getary and Brown's demise had been announced by Respondent almost 2
months prior to the actual discharge date of November 5. Brown was also a
primary witness against Respondent in the earlier case. and he and Paluszek
had worked closely together on union matters and in the organizing cam-
paign which commenced in the spring of 1976.
25 Copies of the letter were also forwarded to the area U.S. Congressman.
officials of Respondent's state funding agency (ODAS) and to the local
newspaper. As discussed earlier, Respondent's funding came from NIDA
through ODAS. It is undisputed in this case that Paluszek's complaints
about Brown's discharge, standing alone, constituted legal and proper pro-
tected concerted activity under the Act. However, Respondent urges herein
that the additional and critical remarks of Paluszek in his November 8 letter
were not protected and served as a major reason for his failure to be pro-
moted. These remarks were as follows:
This [the Brown matter, in my opinion, is representative of a course of
events initiated and carried out by the administration of the Richboro
program, which has signified a decrease in the quantity and quality of
service to clients. It is also my strong opinion that the persons directly
responsible for this decline in service are Mr. John J. Quinn. Chairman
of the Board and Mr. Terence McCabe. Administrator.
I trust that you will take this matter into your mmediate and per-
sonal concern. I also request that the Richboro administration be held
accountable to the Staten Island community through its representative
to Congress. the Honorable John Murphy.
Thank you for your concern and attention.
12 Contrary to the urging of Respondent, the creditable evidence substan-
tially reflects, and I ind that Paluszek was in fact as equally (if not better)
professionally qualified as others who were promoted or hired over him.
Respondent's own administrator testified that he personally advised Paluszek
that his remarks and attitude were such "that [Respondent) could not con-
sider him] for supervision."
1272
RICHBORO COMMUNITY MENTAL HEALTH COUNCIL
own letterhead without permission. the final paragraphs of
the letter reflect Paluszek's personal attack on Respondent's
competence and qualitl of service. In those final para-
graphs. no reference was made to anN labor practice nor
was there an) reference to wages. hours, or working condi-
tions. Further. the letter was primarily directed to Respon-
dent's funding sources and thus posed a potential danger to
Respondent's actual and continued existence. Paluszek's re-
marks, in my opinion. portrayed not merely disagreement.
but a basic disloyalt to Respondent. and even though the
Brown remarks rendered the letter partially protected ac-
tivity under the Act, the manner in which the letter was
drafted, its later remarks and language, and its distribution
in my opinion deprived Paluszek of his protection under the
Act.27 [n short. and in summary, I find that the denial of a
promotion to Paluszek did not constitute the imposition of
a penalty upon him by Respondent because of his protected
concerted activities. I shall recommend that the complaint
be dismissed.
2' .L R.B v. Loarl t ion No 122 /. I BE . 346 l IS 464. (1953).
wherein the Supreme Court commented as lbllosss:
There is no more elemental cause for discharge of an employee than
disloyalty to his employer. It is equally elemental that the Taft-Hartles
Act seeks to strengthen, rather than to weaken, that cooperation. conti-
nuity of service and cordial contractual relation between emploer and
employee that is born of loyalth to their common enterprise.
CONcI.LSIONS OF LAW's
I. That the Respondent. Richboro Community Mental
Health Council. Inc., is an employer within the meaning of
Section 2(6) and (7) of the Act.
2. That the Charging Union. District 1199. National
Union of Hospital and Health Care Employees, Retail.
Wholesale and Department Store Union. AFL-CIO, is a
labor organization within the meaning of Section 2(5) of the
Act.
3. That Respondent's failure to promote or denial of a
promotion to employee Jack Paluszek did not constitute
improper interference with or improper restraint. coercion.
or discrimination against the said Jack Paluszek in violation
of Sections 8(a)( I), (3) or (4) of the Act.
4. That Respondent has not otherwise violated the Act.
[Recommended Order for dismissal omitted from publi-
cation.]-2
28 The acts and conclusions found and made herein are based on the
record as a Whole and upon my observation of the witnesses. The credibility
resoluions herein hase been derived from a review of the entire testimonial
record and exhibits with due regard for the logic of the probability, the
demeanor of the ssitnesses. and the teaching of N L.R .B . Walton Manuacr-
ntring Conparn, and Loganrille Paint Compan. 369 U.S. 404. 408 (1962) As
to those witnesses teslitfing in contradiction to the findings herein. their
testimony has been discredited, either as having been in conflict with the
iestimony of credible witnesses or because it was in and of itself incredible
and unworlh f belief Al4/ testimons has been reviewed and weighed In
lihght of the entlre record.
1273