Abilities & Goodwill, Inc.

ABILITIES AND GOODWILL Abilities and Goodwill, Inc. and Abilities and Goodwill Association of Professional Employees. Case 1- CA- 10344 March 15, 1979 DECISION AND ORDER On November 14, 1977, Administrative Law Judge Thomas E. Bracken issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief, and General Counsel filed a brief in support of the Administrative Law Judge's Decision. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions' of the Administrative Law Judge and to adopt his recommended Order except as modified herein. The Administrative Law Judge found that Respon- dent violated Section 8(a)(1) of the Act by discharg- ing 21 strikers on July 11, 1974, for engaging in pro- tected, concerted activity, and by thereafter refusing to reinstate them on July 18, 1974. We agree with these conclusions of the Administrative Law Judge. To remedy these violations, the Administrative Law Judge ordered Respondent to offer immediate rein- statement to the discharged strikers and to reimburse them for lost wages accruing from the date of their request for reinstatement, July 18, 1974. The Admin- istrative Law Judge's proposed backpay remedy was in accordance with established Board precedent.' However, for the reasons set forth below, we now overrule this precedent and, henceforth, for purposes of computing the employer's backpay liability, we will treat unlawfully discharged strikers in the same manner that we treat other employees who are dis- criminatorily discharged. Thus, we will no longer re- quire discriminatorily discharged strikers to request reinstatement in order to activate the employer's backpay obligation. The issue is whether an unlawfully discharged striker, unlike an unlawfully discharged employee, must unconditionally request reinstatement in order I In agreeing with the Administrative Law Judge that the employees' sick- out was protected activity, we do not rely on his comment that Respondent did not contend that this action was illegal. 2 See, e.g., Bartlet-Collins Company, 230 NLRB 144 (1977) (Member Jen- kins, dissenting); Michael Muldoon Elder, d/b/a Vorpal Galleries, 227 NLRB 446 (1976) (then Member Fanning and Member Jenkins, dissenting); Valley Oil Co., Inc., 210 NLRB 370 (1974) (then Member Fanning, dissenting). I In his recommended Order, the Administrative Law Judge included the names of two employees, Meredith Hewitt and Richard Schott, who appar- ently had made no request for reinstatement. Under the Administrative Law Judge's analysis, these 2 employees should not have been included in his proposed remedial order, but under the approach adopted herein the 2 em- ployees are entitled to the same reinstatement and backpay nghts as the other 19 discharged stnkers. to trigger an employer's backpay obligation. We be- lieve that the equities and policies of the Act compel a negative answer. It is, of course, well settled that a discriminatorily discharged employee is entitled to re- instatement and backpay from the date of the em- ployer's unlawful action. There is no requirement that such employee first request reinstatement. Indeed, such a request, in all likelihood, would fall upon deaf ears when one considers that the employer has just fired the employee. In this connection, the Board has frequently said that it will not require a person to perform a futile act.4 Furthermore, since it is the em- ployer who has acted unlawfully in discharging the employee, the burden is on that employer to undo its unfair labor practice by offering immediate reinstate- ment to the employee, and by reimbursing the em- ployee for all losses suffered from the date of its dis- criminatory action. The foregoing rationale is, in our view, equally ap- plicable to employees who are unlawfully discharged while engaged in a lawful strike. A discharged striker is a discharged employee, and is entitled to be treated as such, for there is nothing peculiar to a strike which justifies dissimilar treatment. The nature of the em- ployer's unlawful conduct is not changed by the fact that the employee happens to be a striker at the time of discharge. Furthermore, to require a discharged striker to request reinstatement would be no less futile than it would be for a discharged employee. Thus, no logical reason presents itself for treating the two cate- gories of employees differently. In both cases, the em- ployer has acted in violation of the Act in terminating the employee, and in both cases the burden rightfully rests on the employer to remedy the situation. Ac- cordingly, we now hold that a discharged striker is entitled to backpay from the date of discharge until the date he or she is offered reinstatement.' To the extent that this holding represents a departure from prior policy, that policy is hereby overruled. 6 While our dissenting colleague would adhere to that prior policy and continue to place the burden on unlawfully discharged strikers to request reinstate- ment, it is our judgment that such a position does not best effectuate the remedial purposes of the Act. Pre- 4 See, e.g., Macomb Block and Supply, Inc., 223 NLRB 1285, 1286 (1976); Mason City Dressed Beef Inc., 231 NLRB 735, 747-748, and fn. 3 (1977); Alexander Dawson, Inc., d/b/a Alexanders Restaurant and Lounge, 228 NLRB 165, 179 (1977); Penzel Construction Company, Inc.. 185 NLRB 544 (1970). s If the discharged striker responds to the employer's offer of reinstatement by continuing to withhold his or her services, the employer's backpay obliga- tion is tolled and the employee resumes the status of a striker. As such, the employee will, of course, be required to request reinstatement upon the con- clusion of, or the striker's abandonment of, the strike. In addition, even in the absence of an offer of reinstatement, the employer remains free to avoid or reduce its backpay obligation by establishing that the employee would not have accepted the offer if made, or by any other evidence showing the incur- rence of a willful loss of earnings. 6 For a discussion of the Board's prior policy, see cases cited in fn. 2, supra. 241 NLRB No. 5 27 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sumably, the dissent's position is founded on the premise that backpay awards are generally inappro- priate for periods during which employees voluntarily withhold their labor. We too accept this premise. Thus, there is no dispute between us that striking em- ployees-who have not been unlawfully discharged- are not entitled to backpay while engaged in a strike unless and until they abandon the strike and request reinstatement. Nor, we presume, is there any dispute between us that unlawfully discharged employees- who are not strikers-are entitled to backpay from the date of their discharge, since under such circum- stances, the employer is clearly responsible for the discharged employees' loss of earnings. The problem in resolving the issue herein is that the discharge of a striker creates an ambiguous situation. When dis- charged strikers withhold their services after the date of the unlawful discharge, one cannot really be cer- tain whether their continuing refusal to work is vol- untary, i.e., a result of the strike, or whether the rea- son for not making application for reinstatement is that the employer, by discharging the employees, has unmistakenly impressed on them the futility of mak- ing such an application. Thus, "it becomes difficult, if not impossible, to determine whether the employees would have continued to strike and, if so, for how long, had the opportunity to return to work been available."7 This uncertainty could, of course, be re- solved if the employees immediately apply for rein- statement, and, one might say, as our dissenting col- league does, that a showing of such an application is not an unduly burdensome condition for establishing entitlement to backpay. However, because the uncer- tainty is caused by the employer's unlawful conduct, we will not indulge in the presumption that the dis- charge itself played no part in keeping the employees out of work. Rather, it seems to us more equitable to resolve the ambiguity against the wrongdoer and pre- sume, absent indications to the contrary, that the dis- charged strikers would have made the necessary ap- plication were it not for the fact that the discharge itself seemingly made such application a futility. Ignoring the burden that our prior policy placed on discriminatees, our dissenting colleague seems overly concerned with the impact which our approach herein will have on the discharging employer. How- ever, rather than require the discriminatees to engage in the vain procedure of requesting reinstatement, it is clearly less burdensome to require the wrongdoing employer to advise his victimized employees that, al- though he discharged them, he is now rescinding that action and offering them reinstatement. At that point, if an employee refuses to report to work, the above- stated ambiguity becomes resolved; it becomes clear ' See Member Jenkins' dissenting opinion in Bartlett-Collins Company, su- pm. that the discriminatee wishes to resume the status of a striker; and the employer's backpay obligation, if any, is tolled. In addition, as noted earlier, even if the employer fails to offer reinstatement, it remains free to seek to reduce backpay by presenting evidence that the employees would have refused such an offer if made, or that they failed to make a diligent effort to mitigate the backpay obligation by seeking interim employment elsewhere. Such a burden is no different from that which we ordinarily impose on an employer who seeks to prove willful loss of earnings.8 Accord- ingly, unlawfully discharged strikers will now be af- forded the remedial rights of other discharged em- ployees, rather than those of ordinary strikers. Finally, we note that the policy which we now overrule was itself subject to the exception that dis- charged strikers need not request reinstatement where such request would be futile.9 In our view, this excep- tion itself suggests the inequity of requiring dis- charged strikers to request reinstatement, for the fact of discharge itself clearly impresses upon the employ- ees that their services are no longer desired and that a request to return would be a useless gesture.'0 Thus, under our reading of the word "futility," the excep- tion engulfs the rule." Applying the foregoing principles to the facts herein, we find that the discharged strikers were not required to request reinstatement in order to trigger Respondent's backpay obligation, for, as discharged employees, they were entitled to receive backpay from the date of their unlawful discharge. If any of the discharged strikers failed to make themselves available for employment, and thereby incurred a ' In this regard, after the discharge continued participation in the strike is not, by itself, evidence of such willful loss because, notwithstanding such continued participation, the discharged employees may still spend hoars not involved in strike activity seeking employment elsewhere, and thereby satisfy whatever requirements are necessary for unlawfully discharged employees to mitigate an employer's backpay liability. Thus, as in any compliance pro- ceeding, the crucial issue is not how the discharged employees spent their time, but rather whether the employer can show that, as a result of such activity, the employees were unavailable or unwilling to accept or seek em- ployment. 'See, e.g., Valley Oil Co., supra. '0 Our colleague opines that the employees here hardly thought that such a request was useless because they did, in fact, request reinstatement. Such action proves nothing, and certainly does not disprove that the employees reasonably believed the gesture to be useless. The employees may have been motivated by nothing more than the stark fact that the then-prevailing Board law generally mandated their request for reinstatement before back- pay could commence. Moreover, the futility of making the reinstatement request was especially borne out here by the fact that the request was refused by Respondent. i" In fact, in Sigma Service Corporation, 230 NLRB 316 (1977), a case decided under the prior policy, the Board adopted the decision of the Ad- ministrative Law Judge which applied the futility exception and required the employer there to offer reinstatement where the only fact demonstrating futility was the employer's clear indication to the employees that they were fired. 28 ABILITIES AND GOODWILL willful loss of earnings.2 Respondent can prove this fact at the compliance stage of this proceeding." In light of the foregoing, we shall modify the Ad- ministrative Law Judge's recommended Order as set forth below.4 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Or- der of the Administrative Law Judge, as modified be- low, and hereby orders that the Respondent, Abilities and Goodwill, Inc., Portland, Maine, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modi- fied: i. Substitute the following for paragraph I (b): "(b) In any other manner from interfering with, restraining, or coercing its employees in the exercise of their rights guaranteed in Section 7 of the Act." 2. Substitute the following two paragraphs for 2(a), and reletter the subsequent paragraphs accordingly: "(a) Offer to the employees named below (exclud- ing Marvin Tanck, who has been reinstated) immedi- ate and full reinstatement to their former jobs or, if such jobs are no longer available, to substantially equivalent positions, without prejudice to their se- niority or any other rights and privileges, discharging, 12 See fn. 8, supra. I" Our dissenting colleague attempts to make much of the fact that the result herein fails to set forth the "cumulative administrative experience" necessary to overturn existing Board precedent. Such a position confuses the issue before us for, of course, there is no demonstrable basis for determining instances in which past discriminatees have been prejudiced by our former policy. In this regard, what our dissenting colleague fails to understand is that the differences between us are not basecd on differing perceptions of our administrative experience, but are premised on a philosophical difference regarding the remedial purposes of the Act. Thus the dissent presumes, ab- sent indications to the contrary, that discharged strikers fail to offer their services because of their continuing desire to strike and should, therefore, only receive the remedial rights of stnkers. We presume, absent indications to the contrary, that discharged strikers fail to offer their services because the discharge made such an offer a futility and should, therefore, receive the remedial rights of ordinary discriminatees. In formulating our position, it is important to note that the result herein does not baldly overrule 30 years of unanimous Board support for the position requinng unlawfully discharged strikers to request reinstatement. Chairman Fanning and Member Jenkins have repeatedly dissented from the Board's reliance on such a remedial pol- icy. See, e.g. dissenting opinions in cases cited in fn. 2, supra. The above discussion adopts the rationale of those dissents and in so doing comports with early Board decisions in this area. See, e.g., Gulf Public Service Com- pany, 18 NLRB 586-587 (1940), enfd. 116 F.2d 852 (5th Cir. 1940); Acme Evans Company, 24 NLRB 71 (1941); Shellbarger Grain Products Co., NLRB 336 (1938). '4 As part of his proposed remedy, the Administrative Law Judge issued a narrow cease-and-desist Order enjoining Respondent from violating the Act in "any like or related manner." However, as the unlawful discharge of 21 striking employees is of such a serious nature and strikes at the very heart of rights intended to be protected by the Act, we shall issue a broad cease-and- desist Order requiring Respondent to cease and desist "in any manner" from infringing upon employee rights. N.L.R.B. v. Enrwistle Mfg. Co., 120 F.2d 532, 536-537 (4th Cir. 1941). if necessary, any replacements hired after the date of their unlawful discharges. "(b) Make the employees named below whole for any loss of earnings which they may have suffered by virtue of the discrimination against them by paying them an amount equal to what they would have earned from the date of discharge to the date that they are offered reinstatement. Such backpay is to be computed in the manner set forth in the section of this Decision entitled Remedy. David Adams Robert Anderson Donald Cannan Cecelia Cormier Kathleen Dunn Maureen Fagan Donald Flanders Cecile Gagne Robert Gross Meredith Hewitt Naomi Kronlokken Johanna Linnehan Corinne Lynds Donna Quinn Richard Schott Rosanna Spurling Jan Strout John Sullivan Marvin Tanck Elise Thibodeau Carl Wilder" 3. Substitute the attached notice for that of the Administrative Law Judge. MEMBER PENELLO and MEMBER MURPHY, dissenting: We would dismiss the complaint in this proceeding because the Respondent is engaged in charitable, nonprofit, essentially noncommercial activities which qualify it as an organization over which the Board should not assert jurisdiction. As explained in our dis- senting opinions in Abilities and Goodwill, Inc., 226 NLRB 1224 (1977), and The Rhode Island Catholic Orphan Asylum, a/k/a St. Aloysius Home, 224 NLRB 1344 (1976), we adhere to Ming Quong Children's Center, 210 NLRB 899 (1974), in opposing the Board's assertion of jurisdiction over noncommercial eleemosynary institutions. There is no need to reiter- ate at length in this decision arguments which have already been made there. Our purpose, however, in this dissent is to protest the majority's determination to forsake the Board's policy that employees who are unlawfully discharged while on strike must indicate abandonment of the strike and a willingness to return to work in order to initiate the running of their backpay eligibility period. In so doing, they have overruled a practical and equi- table remedy supported by more than 30 years of Board precedent' 5-to which, in fact, both Chairman '1 See, e.g., cases cited in fn. 2, supra; Roosevelt Roofing and Sheet Metal Works, Inc., 204 NLRB 671 (1973) (former Chairman Miller, then Member Fanning, Member Penello); Astro Electronics, Inc., 188 NLRB 572 (1971) (former Chairman Miller, then Member Fanning; Member Jenkins. dissent- ing); Universal Services, Inc., and Associates, 184 NLRB 381 (1970) (former Member McCulloch, then Member Fanning, Member Jenkins); Sea-Way Distributing, Inc., 143 NLRB 460 (1963); Elm Tree Baking Company, 139 NLRB 4 (1962); Sea View Industries, Inc., 127 NLRB 1402 (1960); Wheat- (Continued) 29 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Fanning and Member Jenkins have until recently ad- hered and contributed-without giving due deference to the cumulative administrative experience repre- sented by that precedent and without demonstrating that the remedial policy herein adopted will better serve to effectuate the purposes of the Act than its predecessor. The crux of the majority's rationale for changing the Board's backpay remedy is that "no logical reason" presents itself for treating discrimina- torily discharged strikers differently from discrimina- torily discharged employees. We are thereby apprised that the backpay policy at issue has heretofore been totally illogical. While many who have suffered ad- versity in Board decisions may welcome this unex- pected burst of candor, we question its veracity and will not allow the venerable precedent cited in this opinion to be so cursorily dismissed. The Board's broad discretionary authority under Section 10(c) of the Act to order backpay as a remedy for unlawful discharge is well established." "And in applying its authority over back pay orders, the Board has not used stereotyped formulas but has availed itself of the freedom given it by Congress to attain just results in diverse, complicated situ- ations."'7 In each instance, the "just result" to be at- tained is "a restoration of the situation, as nearly as possible, to that which would have obtained but for the illegal discrimination."' With that goal foremost in mind, the Board has, until now, held that unlaw- fully discharged working employees are eligible for backpay from the date of their discharge, but unlaw- fully discharged striking employees ae eligible for backpay only after an unconditional offer to return to work or, where there is evidence that any such offer would be futile, after the general abandonment of the strike. The use of a different backpay eligibility formula for unlawfully discharged strikers is wholly equitable, consistent with the purposes of the Act, and illustra- tive of the Board's judicially approved propensity for tailoring make-whole relief to fit the specific circum- stances of an unfair labor practice. It does not allevi- ate, much less eliminate, the obligation of an em- ployer to rectify its wrongdoing. It does not in any way impugn the incontestable employee status of a land Electric Cooperative, Inc., 102 NLRB 1119 (1953); National Gas Com- pany, 99 NLRB 273 (1952); Happ Brothers Company, Inc., 90 NLRB 1513 (1950); Kallaher and Mee, Inc., 87 NLRB 410 (1949); Massey Gin and Ma- chine Works, Inc., 78 NLRB 189 (1948). The cases cited conclusively over- ruled the few earlier Board decisions to the contrary in this area. Although the majority opinion intimates otherwise, an occasional lack of unanimity has no bearing on the value of these cases as precedent. They have at all times represented the opinion of at least a clear majority of the Board's membership. l* E.g., N.L.R.B. v. J. H. Ruttrrer-Rex Manufacturing Company., 396 U.S. 258 (1969). '? Phelps Dodge Corporation v. N.L.R.B., 313 U.S. 177, 198 (1941). " Id., 194. striker-discriminatee.' 9 It does, however, recognize the fundamental economic distinction between work- ing and striking employees at the instant discrimina- tory action is taken against them. Since the majority opinion herein ignores this distinction and its control- ling significance on our make-whole remedial pur- pose, we must elaborate on them. Employees who are working at the time of their discriminatory discharge are performing services for their employer in exchange for wages and other bene- fits. Accordingly, "the finding of an unfair labor prac- tice and discriminatory discharge is presumptive proof that some back pay is owed."2 0 The Board has given remedial effect to this presumption by implying the continuation of the economic status quo through- out the period of discrimination and by placing upon the employer the burden "to establish facts which would negative the existence of liability to a given employee or which would mitigate that liability."21 In contrast, employees who are on strike at the time of their discriminatory discharge are voluntarily withholding services from their employer and are not entitled to compensation. Any subsequent loss of wages "cannot conclusively be attributed to their dis- charge until the employees indicate their willingness to abandon the strike."2 2 With a logic that is now being defied, the Board has consistently acknowl- edged the absence of the usual wage loss presumption in its backpay orders for unlawfully discharged strik- ers by again implying the continuation of the eco- nomic status quo and by placing on the General Counsel the burden to establish facts which would activate a given striker's eligibility to backpay. The failure of my colleagues in the majority to ap- prehend the critical distinction between the status quo ante unfair labor practice of working employees and that of striking employees is a fatal oversite by itself. They have nontheless compounded their error by fail- ing to give weight to the Board's considerable practi- cal experience with the policy predicated on such a distinction. Their disregard for administrative experi- ence is in marked contrast to the Board's custom of justifying the modification or overruling of an estab- lished remedial policy by reference to a "cumulative experience" which has revealed the particular short- comings of that policy.2 3 It may also render liable to '" The employer is, for instance, under a continuing obligation from the moment it commits the unfair labor practice to reinstate the discriminatee to his employee status. 25 N.L. R.B. v. Masiro Plastics Corporation, 345 F.2d 170, 178 (2d Cir. 1965); The Madison Courier, Inc., 202 NLRB 808 (1973). 1 N.L.R.B. v. Brown & Root, Inc., 311 F.2d 447, 454 (8th Cir. 1963). 12 Kitty Clover, Inc., 103 NLRB 1665, 1667, (1953). Similar expressions of this theory may be found in several other cases cited in fn. 15, supra. u E.g., F. W. Woolworth Company, 90 NLRB 289 (1950). 30 ABILITIES AND GOODWILL sharp judicial scrutiny a remedial determination by the Board which, if reflective of our peculiar adminis- trative expertise, would ordinarily receive consider- able deference upon review by the courts.2 4 In truth, the majority in this case would find no support for their position in an analysis of Board cases involving the policy they have overruled. For over three decades the backpay eligibility formula for striker-discriminatee has met the test of practical ap- plication in a variety of situations. No apparent in- equity can be divided from this experience with re- spect to either the degree of compensation accorded unlawfully discharged strikers or to the evidentiary burden placed on the General Counsel to introduce evidence of a particular individual's right to backpay. On the contrary, the flexibility inherent in the now- abandoned backpay standard has enabled the Board to measure an employer's make-whole liability in a specific factual context with reasonable accuracy. In certain cases, as in the present proceeding, the Gen- eral Counsel has presented evidence of striker-dis- criminatee unconditional offers to return to work and thereby established their right to backpay dating from the time of the offer.25 In other cases, the Gen- eral Counsel has been able to prove that any offer to return to work would have been useless, and the Board has consequently invoked the doctrine of futil- ity to justify an award of backpay dating from the time of a strike's general abandonment.2 Notwithstanding the proven ability of the Board to effectuate its remedial purpose under our established backpay policy for unlawfully discharged strikers, a new policy has today been adopted which assumes ab inilio that every striker-discriminatee would at all times be performing services and receiving wages but for the commission of an unfair labor practice and places on the employer the burden to prove other- wise. Aside from the aforementioned logical flaws in the legal fiction proposed, the new backpay policy entails a reliance on a sterotyped formula which the Board has typically abjured. 7 In practice, the policy espoused by our colleagues requires the employer to prove an unlawfully discharged striking employee's continued support of the strike in order to mitigate or See NLR.B. v. Seven-Up Bottling Co., 344 U.S. 344 (1953); Phelps Dodge Corporation v. N.L R. B., supra. 1 It is notable that no party in the instant proceeding has excepted to the Administrative Law Judge's Decision to award backpay to the 21 unlawfully discharged stnkers from the date of the offer to return to work rather than from the date of discharge. 6 E~g., Mid-West Paper Products Co., 223 NLRB 1367 (1976); Universal Services, Inc., supra. The majority herein contends that "the fact of discharge itself clearly impresses upon the employees that their services are no longer desired and that a request to return would be a futile gesture." The absolute truth of such a contention is difficult to accept when made in a proceeding where the subject discriminatees were not so impressed. as evidenced by their postdischarge offers to return to work. 27 See fn. 17, supra. eliminate its backpay liability. The facts with regard to the issue of a striker's allegiance to the strike effort, however, lie peculiarly within the knowledge of the striker. Absent evidence of an overt act in sympathy with the strike by the discriminatee, an employer will be unable to make the requisite evidentiary showing. As a consequence, employers found by the Board to have unlawfully discharged striking employees will on numerous occasions be required, in effect, to subsi- dize with backpay the continued passive participation in the strike by those employees. 8 This is not the "just result" which the Board is dedicated to achieve in the exercise of its statutory remedial authority. It is, un- fortunately, a clearly foreseeable result under an in- flexible backpay policy which is far worse suited than its predecessor to the task of accurately determining the economic positions of the parties involved which would have obtained but for the occurrence of an unlawful discriminatory discharge. In sum, we cannot subscribe to the majority's ill- considered overruling of the Board's longstanding backpay eligibility formula for unlawfully discharged striking employees. That formula is more practical, more logical, and more consonant with the Board's make-whole remedial purpose than the formula herein adopted. We will therefore continue to adhere to the view that employees who are unlawfully dis- charged while on strike mrust indicate abandonment of the strike and a willingness to return to work, un- less It would be futile to make such a showing, in order to establish their eligibility for backpay. 2"Cf. Southwestern Electric Power Company, 216 NLRB 522. (1975), wherein a Board panel majority held that an employer did not violate Sec. 8(a)(3) and () of the Act by treating six employees as strikers and terrmnat- ing their sick leave payments when it had no objective indication of their sympathies and reasonably believed that they supported a generally effective strike effort. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing in which all sides had the chance to present evidence and argument, the National Labor Relations Board has found that we violated the Na- tional Labor Relations Act, and has ordered us to post this notice: WE WILL NOT discharge, refuse to reinstate, or otherwise discriminate against our employees be- cause they have engaged in concerted activity or a protected strike for their mutual aid or protec- tion. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the ex- 31 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ercise of their rights guaranteed under Section 7 of the Act. WE WILL offer to each of the employees listed below immediate and full reinstatement to the job they held immediately before July 11, 1974, or, if that job no longer exists, to a substantially equivalent job, without prejudice to their senior- ity or any other rights and privileges previously enjoyed, discharging, if necessary, any replace- ments hired after the date of their discharges. WE WILL make the employees named below whole for any loss of earnings they may have suffered by virtue of the discrimination against them by paying them an amount equal to what they would have earned from the date of dis- charge to the date that they are offered reinstate- ment, with interest. David Adams Robert Anderson Donald Cannan Cecelia Cormier Kathleen Dunn Maureen Fagan Donald Flanders Cecile Gagne Robert Gross Meredith Hewitt Naomi Kronlokken Johanna Linnehan Corinne Lynds Donna Quinn Richard Schott Rosanna Spurling Jan Strout John Sullivan Marvin Tanck* Elise Thibodeau Carl Wilder *Since Tanck was reinstated to his job in 1974, we will make him whole with interest for the pe- riod prior to his reinstatement. ABILITIES AND GOODWILL, INC. DECISION STATEMENT OF THE CASE THOMAS E. BRACKEN, Administrative Law Judge: This case was heard at Portland, Maine, on April 21-22, 1977. The charge was filed by the Abilities and Goodwill Associ- ation of Professional Employees on December 31, 1974' (amended January 21, 1977), and the complaint was issued on January 25, 1977.2 The primary issue is whether the I All dates are in 1974 unless otherwise stated. 2 On August 19, a petition for certification of representative was filed by Raymond McGuire (amended on the first day of the representation hearing set forth below, to show the name of the Petitioner as Abilities and Goodwill Association of Professional Employees). On November 6, 1974, the Regional Director for Region I dismissed the petition on the basis that the Board lacked jurisdiction over the Employer. The Petitioner filed a request for review of the dismissal with the Board and, on December 10, 1974, the Board issued a ruling on administrative action remanding the petition to the Regional Director for the purpose of conducting a hearing. A hearing was duly held on January 23. 24, 28; February 19. 20; and March 18, 1975. On March 24, 1975. pursuant to direction of the Board, the Regional Director for Region I transferred the case to the Board for decision. On December I., 1976, the Board issued its decision, asserting its jurisdiction over the Em- ployer, and directed elections in two voting groups, the first being nonprofes- Company, herein the Respondent, discharged employees and refuses to reinstate them because they engaged in a work stoppage and other concerted activity, in violation of Section 8(a)(l) of the Act. Upon the entire record,' including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by the General Counsel and the Respondent, I make the following: FINDINGS OF FACT 1. JURISDICTION The Company, a nonprofit organization, is established to provide services for mentally, emotionally, and physically handicapped individuals in the State of Maine. During 1974, the Company had total revenues of $1,103,104 and purchased supplies directly from sources outside the State of Maine valued at $22,022, and gas and oil valued at ap- proximately $42,000 from suppliers within the State who received such gas and oil from outside the State. In 1977, the Company has a budget for expenditures in the amount of approximately $1,300,000, and primarily due to the in- crease in the costs of gas and oil, has a budget exceeding $50,000 for the purchase of gas and oil from suppliers within the State, who receive such gas and oil from outside the State. The Company denies that it is an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. For the reasons stated in the representa- tion Case 216 NLRB 1224 (1975), 1 find that the Company, as an employer engaged in retail activities, meets the juris- dictional standards for retail enterprises,' and is an em- ployer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED As found in Abilities and Goodwill, Inc., supra, Abilities and Goodwill Association of Professional Employees is a labor organization within the meaning of Section 2(5) of the Act. I11. THE ALLEGED UNFAIR LABOR PRACTICES A. Contentions of the Parties It is undisputed that on July 8 the Respondent dis- charged its director of rehabilitation services, Patrick Eisen- hart,5 one of its two department heads, and that on July 9 and 10, triggered by Eisenhart's discharge, approximately 22 employees of the rehabilitation department staged a "sickout" and did not report for work. On July 11, at a sional employees and the second being professional employees. Abilities and Goodwill, Inc., 226 NLRB 1224. The record does not disclose if an election was held or, if held, what the result of the election was. At the request of the General Counsel, official notice was taken of Abili- ties and Goodwill, Inc., supra. On the motion of Respondent, the transcript of testimony in the above-cited representation case was received into evidence, solely on the issue of jurisdiction. 4 Carolina Supplies and Cement Co., 122 NLRB 88 (1958); Siemons Mail- ing Service, 122 NLRB 81 (1958). The legality of Eisenhart's discharge is not an issue in this case. 32 ABILITIES AND GOODWILL meeting with Respondent, these employees were termi- nated: with the exception of two employees, Howard Hede- gard and Marvin Tanck. none of the remaining discharged employees has been reinstated. It is the General Counsel's contention that the underlying cause of the employees' sickout on July 9 and 10 was to give them time to prepare grievances concerning wages, hours, and other terms and conditions of employment, which were to be turned over to Eisenhart, who, on their behalf and as their spokesman, would present their grievances to the board of directors of the Respondent agency. The General Counsel accordingly asserts that on July I I, when these employees were terminated, they were engaging in pro- tected concerted activity for which they could not lawfully be discharged, and that, in any event, on July 18 when the employees unconditionally offered to return to work, Re- spondent acted unlawfully in refusing their request for rein- statement and in thereafter refusing or failing to reinstate them. Respondent does not challenge the legality of the em- ployees' sickout on July 9 and 10, but contends that on July II, "the cause of their discharge was the employees refusal to remain at work or to continue in their employment un- less Patrick Eisenhart was in fact rehired," and that such a demand was unprotected activity. Respondent asserts that it therefore had a legal right to terminate the employees, as it had to choose between retaining its Executive Director Arthur Bennett or capitulate to the employees' demands and reinstate Eisenhart. B. Credibility The record contains several basic testimonial conflicts, in which General Counsel's witnesses uniformly testified one way, and Respondent's witnesses testified to the contrary. In most instances I have indicated my resolution of these conflicts at the point in the section which follows where the particular issue is taken up. However, chiefly because of the fact that many of the witnesses herein had testified on the same subject matter before three previous tribunals,6 I re- ceived an overall impression from the witnesses, chiefly the witnesses for the General Counsel, that they knew the role they were to play as avowed "professionals," and knew the answers that they thought should be given for the good of their cause, regardless of the facts. There was one notable exception to this role playing and seeking to give answers helpful to their cause, and that was Harold Berk, president of Respondent. Berk was a most impressive witness, an- swering all questions in a straightforward, articulate, candid manner, with no evasion or embellishment. At the time of his testimony herein, Berk had completed 4 years of public service as the uncompensated president of the agency, and he impressed me as a most conscientious citizen testifying solely to present the facts as he truly remembered them, and I have credited his testimony. 6 The Cumberland County Superior Court of Maine, Abilities and Good- will, Inc. v. Elise Thibodeau, a petition for an injunction, July 29-30, 1974; the Maine Board of Arbitration and Conciliation, August 1974; and the Maine Department of Manpower Affairs, Unemployment Security Commis- sion, January 25, 1977. C. The June Management Meeting Eisenhart had been hired in May 1972 as the director of rehabilitation, one of Respondent's agency's two primary departments. The other major department was the opera- tions department, which was mainly concerned with mer- chandising and whose department head was Raymond Lu- cas. Employees on Eisenhart's rehabilitation staff, about 30 in number, worked at all five agency buildings scattered throughout Portland: the central office, the extended em- ployment center and retail shop, the Elma Mitchell Voca- tional Evaluation Center, the Carlton House dormitory, and the Ingraham House dormitory. Eisenhart testified that in late June, he met with Execu- tive Director Bennett and Harold Berk,7 president of Re- spondent, regarding "problems" at the agency. As a result of the conference, he was told by Berk to compile "a writ- ten list of grievances from the staff," which he was to have ready in 2 weeks, when Berk returned from his vacation. On cross-examination Eisenhart insisted that he was not told by Berk to present a list of his grievances, but a list of staff grievances, and that he used the words staff and staff grievances during the conference. Berk testified that he had learned of dissension between Bennett and Eisenhart, and thereupon called the meeting of the two at the executive director's office.' Berk opened the conference by stating to Eisenhart and Bennett that he had heard they did not get along, and that he wanted to know what was going on. Eisenhart proceeded to accuse Bennett of being dishonest, of skimming, of cribbing on expenses, of not knowing anything about rehabilitation, and stated that Bennett "wasn't worthy of being a pimple on rehabilita- tion's ass." In the hour long conference, Eisenhart also stated that the agency's truck had been used by the son of Operations Director Lucas for personal reasons, and that Lucas' son had been in an accident with the truck. Eisen- hart then stated that he expected that Bennett would fire him, and that if he was fired he would pull all his people out with him. Bennett commented that he did not think Eisen- hart could do that. Berk testified that he then directed Eis- enhart to "go back and put his allegations on paper, with whatever supporting evidence he could put together." He promised that when the "letter" was received, he would appoint a committee, the "allegations" would be investi- gated, and a full hearing would be held. On cross-examination Berk strongly denied that Eisen- hart referred to problems of his staff, or to poor working conditions, or to any question about discrimination against some female employees with respect to rates of pay. Berk stated that if Eisenhart at any time had stated that other employees had criticisms of Bennett, he would have asked who they were and their names would have been brought into the conversation. Berk further testified that the only matters discussed were Eisenhart's personal experiences with Bennett and "Nothing else," and that the only time Berk's office as president of Respondent was an unpaid one; he was also president and general manager of a Portland shoe manufacturing company. I Berk was surpnsed to hear of this dissension, as several weeks previously he had met with Eisenhart at dinner; they had discussed the workings of the agency and its future in detail, and Eisenhart had not mentioned any dissen- sion. 33 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the staff was mentioned was when Eisenhart stated that he would pull the staff if he was fired. The meeting concluded with Eisenhart agreeing to prepare a list of the accusations he had made against Bennett and to formalize these in a letter to Berk. Eisenhart was an evasive, argumentative, inexact witness and I do not credit his testimony except where uncontested. An example of this is his answer after testifying that he was certain that a report (G.C.Exh. 2) had been turned over to the board of directors on July 8 and also testifying that he was not asked by Berk to present a list of Eisenhart's griev- ances, but a list of the staffs grievances. Q. Are you as certain of that fact, sir, as you were of the fact that the list of grievances was given to the board of directors on July 8th? A. When you say you, Mr. DeTroy, in my capacity as director of rehabilitation? That could be a very equivocal term. If you're talking about in my capacity as director of rehabilitation, translating it to the board of directors-is that what you're talking about? Or, are you talking about my personal-my alone kind of thing? Because I think it's very difficult for me to sepa- rate from that-separate my personal versus the entire staffs. I credit Berk's testimony that the charges made at this meeting were Eisenhart's personal complaints targeted at the executive director's alleged mismanagement of the agency, and that grievances, as grievances of the staff, were not mentioned. Berk's testimony that Eisenhart stated that he would pull the staff if he was fired was uncontradicted and is credited. D. The June 28 Rehabilitation Staff Meeting Eisenhart testified that after this meeting with Berk and Bennett, he had "at least three" meetings with employees about grievances. The first meeting was held at the home of the assistant rehabilitation director, Dick Schott, with two other rehabilitation department employees, Donald Can- nan and Cecile Gagne. The second and third meetings, ac- cording to Eisenhart, were held at Eisenhart's house with the majority of his staff, over 20 people, present.'0 Robert Gross, an avid witness for the General Counsel, admitted on cross-examination that the question of grievances had been brought up to the rehabilitation staff for the first time at the late June [28] meeting. However, there can be no doubt but that staff grievances were discussed at this June 28 meeting. Howard Hedegard, an employee of the Respondent in 1974 as well as at the time of the hearing, was called by the Respondent as its witness. He fixed the date of this large "rehab" staff group meeting as June 28, although he admitted that there had been some prior small meetings. Hedegard testified that at this June 28 meeting Eisenhart informed his staff, that he 9 Subsequent witnesses of the General Counsel testified conclusively that the report had not been compiled by July 8 and, in fact, was turned over to the directors on the evening of July 10. mi All other staff witnesses testified that there was only one large meeting in June, and I so find. had had a meeting 2 days prior [June 26] with Bennett and Berk, and that he had informed Berk that he thought that Bennett and Lucas were incompetent; that, as a result of this charge, Berk had requested him to complete a list of what he thought was wrong at the agency to prove this incompetence; and that Eisenhart then asked the staff members to "compile any grievances that we had with our particular programs, primarily due to funding."" Hedegard also testified that Eisenhart stated he thought that he would be fired because of his endeavors; and upon hearing this, the group decided that if anyone was fired they would meet again to decide what to do, "but that some action would be taken to protect either Pat or other members of the rehab staff." Gross testified that he was involved in that part of the conversation that dealt with some action would be taken if any staff member was fired. E. The Events of July 8, 9, and 10 On the morning of July 8, Monday, Eisenhart was dis- charged by Executive Director Bennett. There is no ac- count of what occurred at this meeting by either Bennett or Eisenhart, and it is not material to this case. Eisenhart thereafter informed Hedegard and several other rehabilita- tion staff employees of his discharge, and advised them that there would be a meeting at his house at 5:30 p.m. that evening. A meeting was held that night, attended by a large number of staff employees, estimated by Gross to be about 25 to 30 and by Hedegard as about 25. The meeting lasted about 2 to 3 hours. When asked by Respondent's counsel what happened at the meeting, Hedegard replied: At that meeting there was some discussion as to what had happened, that is Pat's being fired, as to our grievances, as what we were going to do about that as a rehab staff. We decided without a doubt that we would all call in sick the following morning, and that would give us time to get together to finalize the prep- aration of this grievance list. Hedegard further testified: Everybody wanted to stay out because they wanted to get this task force report put together and the other reason was because at the meeting of June 28, they had promised that if a rehab member was fired, we would meet and determine what we were going to do. And at this time the group decided that they were supporting Eisenhart. At this July 8 meeting there was also a discussion by the group as to whether there was a Maine state law that would allow employees to call in sick for a 3-day period, without the necessity of providing a note from a doctor indicating that they had actually been sick. They expressed concern 1" On July 4 Hedegard did turn in to Eisenhart a three page, rambling, social worker's report, mildly decrying the lack of adequate financing for Ingraham House, for which he was house manager (G.C. Exh. 6). Specifi- cally, he stated that the Ingraham House needed a full-time maintenance individual, two new furnaces, furniture, and carpeting. While these items would improve the health and welfare of the mentally, emotionally, and physically handicapped individuals (referred to by the witnesses as clients) in the house, they would also obviously make better working conditions for Hedegard and his assistants. 34 ABILITIES AND GOODWILL about their status as employees, if they were out more than 3 consecutive days. On the following day, July 9, rehab staff employees, in- cluding Gross, Kathleen Dunn, Donald Cannan, Naomi Kronlokken, Jan Strout, and Cecile Gagne called into the agency and reported sick. All admitted that they partici- pated in the "sickout." When asked on direct examination why they participated in the sickout on July 9 and 10 they gave virtually the same answer. Cannan stated the reply most completely: "We had grievances to present to the board, and we felt our spokesman had been terminated that day; we felt there was one way of doing it one-one way of getting the board of directors to listen to us, to our griev- ances that we had." Gross testified that after calling in sick, he then went to the home of Eisenhart, where there was a meeting of senior staff members. Here, they took the raw data that the staff had compiled on grievances pursuant to the meeting of June 28. The senior staff members read them over and put them into their final form. After they finished each section, various staff members with typewriters began typing the report. The task force report was finally compiled and put together on Wednesday evening, July 10, around 8 or 9 p.m. Various staff members were given these documents to take to the members of the board of directors at their homes.'2 Cannan, Adams, Schott, and Hedegard were then chosen as spokesmen to meet with the agency's rehabilita- tion committee on the following day.' Marvin Tanck, another witness called by Respondent," testified that he was aware that the employees were writing up some sort of written documentation of the problems as they saw them on July 9. He also agreed that on Tuesday, he was one of the persons who went over the various state- ments that people had turned in to Eisenhart form compil- ing a rough draft. On the morning of July 10, while the staff members were present at Eisenhart's house, a request came from Patricia Corey, a member of the board of directors, to meet with her subcommittee on rehabilitation. Gross, Hedegard, Adams, Cannan, and Gagne proceeded to meet with Mrs. Corey, Tanya Shapiro, and a third member of the subcommittee, William Reilly. As Gross testified, these three members of the board requested that the members of the staff return to work and raise their grievances through proper channels. Gross maintained to them that the firing of Eisenhart had cut off their channel to the board, although he did not ex- plain why this was so. Gross, when asked if he told the subcommittee what their grievances were, evasively replied, "I don't recall, but I don't think that we did." None of the members of the board's subcommittee testified. Following this meeting with the board subcommittee, the same employee committee went to the office of attorney Raymond G. McGuire to discuss the legal rights of employ- ees, particularly in regard to the State of Maine law on 12 Eisenhart's testimony that the report was completed on July 8 and deliv- ered by hand to members of the board on the same evening is obviously in error. 13 Gross testified that the June 28 meeting was run jointly by Eisenhart, Cannan, and Gagne. The record is clear that Cannan, Gagne, and Gross were the chief spokesmen and leaders of the group during the week of July 8. 14 Tanck was one of the two members of the staff who had been rehired subsequently to his discharge. He was obviously a friendly witness to Re- spondent, and I credit his testimony. sickouts. The committee was told by McGuire that it was obvious that they were not sick, as they were spending the time having meetings, typing things up, and running all over town.' On the evening of Wednesday, July 10, the rehab staff met again at Eisenhart's house. Although apparently there was no formal vote, the group decided that it would return to work the following morning and as Gross testified, "to work the whole next day and to meet Thursday evening, to discuss any further action." Gross and Gagne testified that no conditions were placed on their return to work. On cross-examination, when Gross was asked if at any time from Monday, the day Eisenhart was fired, until Thursday morning, was Eisenhart's rehiring a condition of the group as to their returning to or remaining at work, he answered at no time. Hedegard testified that it was decided that if Eisenhart was not reinstated, or if there was not some assurance that there would be a full meeting of the board with the full rehabilitation staff, they were going to call in sick again." Tanck testified that on Wednesday night the main emphasis was on Eisenhart's reinstatement and the hope that they could have a meeting with the full board of directors. The task force document General Counsel's Exhibit 2, referred to as the task force report, was admitted into evidence without objection by Respondent. It is a Xerox copy of the only copy that the Regional Office had during its investigation, and is, overall, a peculiar document. It consists of 29 pages, with the con- tents thereof typed on obviously several different typewrit- ers. The first 10 pages are not numbered at all, but begin- ning with page II, each page thereafter is numbered by hand in the right hand corner, by plainly different hand- writings. The front page identifies the document as "Task Force on Problems at Abilities & Goodwill, Inc.," and then reads "completed by 22 members of the Rehabilitation Staff and presented all or in part to Abilities and Goodwill on or before July 8, 1974." This is obviously incorrect, as the rec- ord is clear that staff members only started to put the report together on the morning of July 9 and finished it late in the evening on July 10.1' The second page, which purports to be a letter addressed "To whom it may concern" is also misleading. Its contents " Gross participated in the sickout on July 9 and-10, but admitted that he was not sick those 2 days. When asked, to the best of his knowledge, if anyone was sick, he answered "I don't know." This is a typical evasive answer, in which he sought to give the answer that he thought would best help his former associates. I do not find that Gross was a credible witness, and I have relied on his testimony only in those instances where the facts are undisputed. "6 By Wednesday evening, Hedegard had become disillusioned with the staff's actions. He stated that it became obvious to him that the group was considering Eisenhart over-and-above the handicapped. At that point he began to challenge the group and was thereafter ostracized. While the tenor of Hedegard's testimony was inclined to be favorable to the cause of the agency. he answered questions both on direct and cross-examination in a sincere, frank manner; I credit his testimony, much of which supports the position of the General Counsel. '7 Copies of the report were delivered to the homes of board members after 9 p.m. that evening. 35 DECISIONS OF NATIONAL LABOR RELATIONS BOARD clearly indicate that it was typed sometime after the meet- ing of July 11; therefore, it could not have been part of the task force report "presented all or in part to Abilities and Goodwill on or before July 8, 1974," as stated on the front page. The third page reads, "This Report is respectfully sub- mitted by," and thereafter contains the signatures of 20 em- ployees including Eisenhart's. Under the signatures is typed, "Former Staff at Abilities and Goodwill, Inc. fired by Mr. Arthur G. Bennett from their positions, 7/8/74 thru 7/12/74." Obviously this third page also could not have been part of the task force report presented to Respondent on or before July 8. It is readily apparent that the first three pages of this exhibit could not have been attached to the sheaf of papers delivered to the board members on the evening of July 10, nor could they have been part of the sheaf of papers in the hands of board members on the morning of July I 11. At some date thereafter, these three pages were added to that task force report, undoubtedly by employees of the rehabili- tation staff; these pages are spurious and misleading, and give me pause to discredit the entire exhibit. Inasmuch as Respondent did not object to its receipt, I will disregard the first three pages and review the balance of its contents. An examination of the remaining 26 pages reveals a ram- bling, disconnected number of vague charges and allega- tions about financial affairs and procedures of the agency and is, in major part, directed against Director Bennett's honesty and competency. While most of the complaints re- fer to working and living conditions of the clients, some of them refer to working conditions of rehabilitation staff em- ployees. Page 10 of the report reviews the problems of wheelchair persons with the agency's toilets and drinking fountains, and is followed by a recommendation: "That two architecturally accessible bathrooms with low drinking fountains be provided to accommodate the needs of wheel- chair clients and staff on Forest Avenue." The first com- plaint relating to staff employees only appears on page 16. Here it is alleged that there is discrimination in wage pay- ments to women in that men on the staff are paid higher wages than women. The report then recommends various wage increases and establishment of a merit rating system. The report thereafter requests improvements in various working conditions, such as partitioned offices for privacy, a new furnace, additional bathrooms, a motor vehicle for the center, additional full-time and part-time employees, and a change in the way grievances are handled. The report also requested that a pension plan be established for all employees. In sum, the task force report does contain some employee grievances concerning wages and working condi- tions. F. The Events of July 11 On the morning of July 11 some of the rehabilitation staff employees returned to work, although the number is un- known. Hedegard testified that he reported to the Ingraham House at 7 or 7:15 a.m. and spoke with Director Bennett. Bennett was passing out medications to clients and Hede- gard told him that he would like to come back to work and that he was coming back with no demands or conditions. Bennett advised him that he was busy and that Hedegard would have to leave and see him later in the day; Hedegard did leave. Tanck testified that on Thursday morning he walked into his office, whereupon his immediate supervisor came to him, said that Director Bennett was at a board of directors' meeting that morning, asked him to please return home, and stated that the director would call him as soon as he was finished at the board meeting. Tanck left. Kathleen Dunn testified that she and employees Richard Schott, John Sullivan, and Gross returned on Thursday morning to work at the 803 Forest Avenue facility. She was advised by one of the office staff that Director Bennett had stated that she was not to report to work until further notice. Gagne also testified that when she returned to work at her station, she was told by her supervisor that Bennett had requested that she leave until further notice. Gross testified that he returned to work on Thursday at approximately 7:30 a.m.; he claims that he was in a coun- seloring session with a handicapped individual when Direc- tor Bennett came to his office and told him do not report to work until further notice. Gross and other employees of that branch left the premises and went to the Elma Mitchell Vocational Evaluation Center where Gross knew that there was an emergency meeting of the board of directors. When he arrived he could see employees from the other branches standing around the center. According to Tanck, someone asked the group to come inside, and about 18 or 20 mem- bers of the rehabilitation staff went in." Harold Berk had been informed on the evening of July 8 by Director Bennett that Eisenhart had been fired. Accord- ing to Berk, Bennett told him over the telephone that Eisen- hart "had meeting after meeting with his staff" and that the purpose of the meetings was not to improve the working of the organization but rather to destroy the organization. On the next evening, July 9, Berk, who was away on vacation in New Hampshire, learned of the work stoppage. He came back to Portland on Wednesday morning and made ar- rangements to call a meeting the next day of the board of directors. He candidly admitted that he was upset about the fact that the employees were engaged in a work stoppage, but he added that anyone has a right to quit his job, and he took their action as an indication that they no longer wished to work at the agency. Berk called for a meeting of the full board for July I I at 8 a.m. at the evaluation center. The night before he had received "a sheaf of papers," General Counsel Exhibit 6, but he had had no opportunity to look at the papers prior to the meeting. Berk reported to the board 9 that on the day before Cannan had telephoned him and stated that if Eisen- hart was not rehired, the staff employees would not return to work. Board member Tanya Shapiro reported that she had been informed by some of the staff that they wanted to meet with the entire board of directors and that she had informed them that if they came back to work, she would attempt to arrange a meeting for them with the entire " The person who invited the employees to come in was attorney Herbert Bennett, Berk's business attorney; Berk had requested him to attend this meeting. Attorney Bennett is not related to Director Bennett. "1 Attorney Bennett had arrived shortly before Berk and had already talked to the board members when Berk appeared. The attorney testified that when he asked the people to come inside so that they could have a discussion, Gagne had replied "Who the nell are you-we don't have to talk with you," and that she said "Well, we're going to talk to the full board or nobody." 36 ABILITIES AND GOODWILL board. It was decided that it would be too unruly a meeting to have 50 people present. The board then instructed Berk to get the employees back to work so as to service the cli- ents, because it was the clients who were important. The board then directed the two Bennetts and Berk to go out and talk to the assembled employees and to try to get them to go back to work.? Vast amounts of testimony were given by many witnesses as to who said what to whom at this meeting. However, Berk's testimony as to what occurred was in the main un- contradicted, and I credit it. Cannan and Gross were the chief spokesmen of the assembled employees, and in the course of the meeting there was a discussion as to whether a condition of their going back to work was the rehiring of Eisenhart. Berk repeatedly told the employees that the board wanted them to go back to work, and that the board would appoint a three-member committee to five-member committee to meet with a committee appointed by the staff, and at that time they could "air all grievances, whatever they are." Upon not receiving a satisfactory response, attor- ney Bennett then stepped forward and said "Wait a minute. Do I understand that a demand of this group is that they will not go to work until Eisenhart is rehired?" When there was no response, Berk asked "Does anyone disagree?" Upon receiving no response, Berk himself asked if the rein- statement of Eisenhart was a condition of their going back to work, and Cannan, who had been the chief spokesman, answered that is was." No one stated that he or she dis- agreed with Cannan's answer, and Gagne admitted that six or seven persons agreed. 2 Berk further testified that it was clear to him that no one would go back to work until Eisenhart was rehired. He then told the group that the board would have to find people to take care of the clients, and he adjourned the meeting. Berk admitted that it was his understanding that these people had voluntarily quit or had been terminated.23 He also ad- mitted that one of the employee demands was to meet with the full board of directors. The meeting broke up abruptly, and some staff members went to Eisenhart's house. That evening there was a general meeting of the staff at Eisenhart's just as on the previous three evenings. Hedegard did not attend this meeting; on 0 There is no evidence to show that the members of the board knew that some employees had attempted to return to work earlier that morning. Berk testified that he did not know that any employees had returned to work. While attorney Bennett testified that he knew that some employees had returned to work. he did not claim to have imparted that information to any board member. l Cannan denied that he stated that Eisenhart's reinstatement was a con- dition of their returning to work, claiming that he said it was "one of the things they wished to talk about." At a hearing before the Cumberland County Superior Court on July 29 and 30, 1974, the transcript showed that Carmnnan had testified that one of the conditions of the group for a return to work was the reinstatement of Eisenhart. Cannan was not a forthright wit- ness, and repeatedly replied that he could not recall what he said at the July II meeting; at one point he stated I don't remember what I said that day." I credit Berk's and Bennett's testimony that Cannan stated that one of the conditions of the group's return to work was the reinstatement of Eisenhart. 22 The General Counsel in his brief conceded that "some employees" an- swered in the affirmative when asked if it was correct that the reinstatement of Eisenhart was a condition of their returning to work. 2 Attorney Bennett testified that the employees were told that if they left because they were requiring Eisenhart's reinstatement they were terminating their employment. the next morning, upon going to see Director Bennett, he resumed his employment. G. The July 18 Request To Return to Work By letter dated July 18, 20 employees of the rehabilita- tion staff, including Eisenhart, signed a letter addressed to Director Bennett that read as follows: Please be advised that on July I i, 1974, the Rehabilita- tion Staff of Abilities and Goodwill was told by Arthur Bennett or staff members under his instructions not to return to work until further notice. On July 12, 1974 a court restraining order made it a criminal offense for any of us to return to work on Goodwill property. Please be advised that we are willing to return to work unconditionally because of our concern for our clients. On July 22, attorney Bennett, by a letter addressed to attorney McGuire, responded to the staffs letter (G.C. Exh. 5). Bennett acknowledged that their letter stated that they were willing to return to work unconditionally, and he then went on to state: However, that letter also reveals a serious misconcep- tion of the instructions given by me to the various members of the Rehabilitation Staff on the morning of July 11, 1974. At that time, I informed all the employ- ees who were present outside the board meeting at the Elma L. Mitchell Vocational & Medical Center that their service with Abilities and Goodwill was termi- nated. Any instructions given earlier that day by Mr. Arthur Bennett or various staff members were obvi- ously superceded at that time. The attorney's letter concluded by stating that the facility was willing to accept applications from the signatories of that letter, but that each such application would be consid- ered as a new application. H. Analysis and Conclusions Both the General Counsel and Respondent cite the same Board decision as containing the fundamental Board law applicable to the instant case, Dobbs Houses, Inc., 135 NLRB 885, 888-889 (1962). In Dobbs Houses, 16 waitress- employees walked out following the discharge of the assist- ant manager. The respondent therein contended that the assistant manager's discharge was the cause of the strike, and that when the employees struck in protest of such dis- charge they were not engaged in protected activity. In find- ing that the employees were engaged in a protected eco- nomic strike, the Board said: . . concerted action by employees to protest an em- ployer's selection or termination of a supervising em- ployee is not automatically removed from the protec- tion of the Act. Each case must turn on its facts. Where, as here, such facts establish that the identity and capability of the supervisor involved has a direct impact on the employees' own job interest and on their performance of the work they are hired to do, they are legitimately concerned with his identity. Therefore, strike or other concerted action which evidences the 37 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees' concern is no less protected than any other strike which employees may undertake in pursuit of a mutual interest in the improvement of their conditions of employment. The record is clear that Eisenhart intensely disliked and disrespected the executive director, Arthur Bennett. As to the meeting of June 26 called by Board President Berk to learn why the two were not getting along, I have credited Berk's testimony that Eisenhart's criticisms were his per- sonal feelings and experiences against the director, chiefly related to financial matters of the agency, and were not the criticisms of his staff. However, when the board president opened the door to Eisenhart to present his written complaints, it is clear that Eisenhart availed himself of the opportunity to include therein all of the individual complaints of the employees on his staff. At the June 28 staff meeting, grievances of individ- ual staff employees were discussed. Hedegard, who later spurned the strike and returned to work to aid the handi- capped, admitted that Eisenhart had requested the 20 staff members present to compile any grievances they had relat- ing to their programs. After Eisenhart stated that he prob- ably would be fired, it was also agreed that the group would take some action to protect Eisenhart or any other member of the staff. Plainly, the members of the rehabilitation staff linked themselves and their problems at the agency with Eisenhart. During the following week, some employees did work at compiling grievances. Hedegard's report to Eisenhart pointed up the need of new furnaces, furniture, and carpet- ing which would make the Ingraham House more livable. Director Bennett knew that employees were meeting with Eisenhart; on the day of Eisenhart's discharge, he informed Berk that Eisenhart had been holding meeting after meeting with his staff to destroy the organization. On the evening of July 8, the day on which Eisenhart was discharged, the vast majority of the rehabilitation staff showed its common cause with its director by gathering at his house to plan what their future course of action should be. Again, relying on the testimony of Hedegard, Respon- dent's own witness, the members of the staff mutually agreed to call in sick the next morning, so "that would give us time to get together to finalize the preparation of this grievance list." By now their own conditions of employ- ment had surfaced, and they were looking to Eisenhart to present them to the board of directors. On the following 2 days, senior staff members, with Eisenhart's guidance, took the individual statements of grievances that had been submitted by members of the staff, read them, and compiled them into the task force report. It is true that this report is not similar in style or contents to a standard form of grievance that is normally filed in an in- dustrial plant situation. The report contains charges of fi- nancial mismanagement, nepotism, dishonesty, and incom- petency that relate to management functions. However, the report also contains basic grievances of employees affecting their working conditions, as well as a grievance on the wages paid to females and a grievance requesting a pension for all employees. During the 2 days that the employees were engaged in the sickout, it is clear that they were engaged in protected, concerted activity by remaining off their jobs, and were, in fact, engaged in an economic strike. Citizens Trust Bank, 206 NLRB 320 (1973); Lisanti Foods Inc., 227 NLRB 898 (1977). Respondent does not contend that this job action was illegal and in its brief states that there is no evidence that the employees were discharged for engaging in the sickout, and I so agree. Turning now to the morning of July I I, there undoubted- ly was some confusion with the board members assembled in one room and the employees in an adjoining room. The board members were unaware that any employees had at- tempted to return to work earlier that morning, and their basic instruction to Berk and attorney Bennett was to get the employees back to work to take care of the agency's handicapped clients. But it is clear that when Berk and attorney Bennett met with the assembled employees, the employees had two de- mands that had to be met before they would return to work: (I) that Eisenhart, their leader and catalyst, be rein- stated; and (2) that the employees have a meeting with the full board of directors, in order to present their grievances, as specified in the task force report, face-to-face. An earlier analysis of the grievances clearly reveals that a number of the grievances concerned the day-to-day working condi- tions of the employees, such as additional bathrooms, new furnaces, private offices, additional help, and a new griev- ance system. Such working conditions, good or bad, plainly affected their efficiency in the performance of their duties. These employee grievances on working conditions at the various branches not only affected their ability to perform their own duties, but also affected Eisenhart's ability to suc- cessfully operate the rehabilitation department, so that the grievances were interacting; the employees' grievances were Eisenhart's grievances. For these reasons, the discharge of Eisenhart was a matter of legitimate interest to the staff employees, and the loss of their spokesman would have a substantial impact upon their own working conditions. On the facts of this case, it was therefore permissible for the employees to engage in a strike in protest of Eisenhart's discharge and also to compel his reinstatement. Plastilite Corporation, 153 NLRB 180 (1965); Kelso Marine Inc., Kel Stress Division, 199 NLRB 7 (1972); F. C. F. Papers Inc., A Division of the Mead Corporation, 211 NLRB 657 (1974). It is true that the employees had turned down the request of board members Shapiro, Corey, and Reilly to tell them their grievances at the subcommittee meeting on July 10, but there is no question that the employees had grievances about conditions that actually existed at the agency. Whether the staff's position in demanding a meeting with the full board so as to present these grievances was reason- able or unreasonable is not material. What is material is that these unrepresented employees had a right to demand such a meeting to protest existing working conditions under Section 7 of the Act, and their demand to do so was pro- tected concerted activity, for which they could not be termi- nated. This is not to say that Respondent had to yield to the employees' demand to reinstate Eisenhart, as such a deci- sion is clearly a management prerogative. Undoubtedly, on the morning of July I Respondent and its employees were locked in a bitter confrontation, with the handicapped cli- ents caught in the middle. However, such hardship does not 38 ABILITIES AND GOODWILL permit an employer to violate the Act. When the meeting broke up, there would have been no violation of the Act. had not Respondent terminated the employees. This it may not do, as it is fundamental that an employer may not dis- charge employees for engaging in protected concerted ac- tivity guaranteed in Section 7 of the Act. By its discharge of these employees, Respondent converted an economic strike to an unfair labor practice strike, and the terminated em- ployees became unfair labor practice strikers. During the following week, since the employees did not notify Respondent that they were changing their position from a conditional request to return to work to an uncondi- tional one, Respondent was under no duty to reinstate them. However, the jointly signed letter of July 18 was plainly an unconditional offer to return to work, and the employees at that time were entitled to be reinstated to their former or substantially equivalent positions of em- ployment. This Respondent refused to do, and thereby vio- lated Section 8(a)( 1) of the Act. CONCLUSIONS OF LAW I. Abilities and Goodwill, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. The work stoppage which began on July 9 was pro- longed by Respondent's unfair labor practice. 4. By discharging and refusing to reinstate the 21 striking employees listed below because they engaged in protected concerted activity for their mutual aid and protection, Re- spondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed them in Sec- tion 7 of the Act, in violation of Section 8(a)(l) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY Having found that Respondent has engaged in certain unfair labor practices, I find it necessary to order Respon- dent to cease and desist therefrom and to take certain affir- mative action designed to effectuate the policies of the Act. To remedy Respondent's unlawful discharge and refusal to reinstate the strikers when they made an unconditional application by letter dated July 18, 1974, to return to work, Respondent will be required to offer each of them immedi- ate and full reinstatement to his or her former job or, if such job no longer exists, to a substantially equivalent job, with- out prejudice to his or her seniority or other rights and privileges, and make each of them whole for any loss of earnings he or she may have suffered by reason of the dis- crimination against him or her. Such backpay shall be com- puted on a quarterly basis, with interest therein to be com- puted in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and Florida Steel Corpora- tion, 231 NLRB 651 (1977).24 4See, generally. Isis Plumbing Heating Co, 138 NLRB 716 (1962). Upon the foregoing findings of fact and conclusions of law, upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER" The Respondent, Abilities and Goodwill, Inc., Portland, Maine, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Discharging, refusing to reinstate, or otherwise dis- criminating against its employees because they have en- gaged in protected strike, work stoppage, or other concerted activity for their mutual aid or protection. (b) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of their rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act: (a) Offer to the employees named below (excluding Mar- vin Tanck, who has been reinstated), immediate and full reinstatement to their former jobs or, if their jobs no longer exist, to substantially equivalent positions without prejudice to their seniority or other rights and privileges, and make them(including Marvin Tanck), whole for their loss earn- ings in the manner set forth in The Remedy. The employees are: David Adams, Robert Anderson, Donald Cannan, Ce- celia Cormier, Kathleen Dunn, Maureen Fagan, Donald Flanders, Cecile Gagne, Robert Gross, Meredith Hewitt, Naomi Kronlokken, Johanna Linnehan, Corinne Lynds, Donna Quinn, Richard Schott, Rosanna Spurling, Jan Strout, John Sullivan, Marvin Tanck, Elise Thibodeau, and Carl Wilder. (b) Preserve and, upon request, make available to the National Labor Relations Board or its agents, for examina- tion and copying, all payroll records, social security pay- ment records, timecards, personnel records and reports, and all other records necessary to effectuate the reinstatement and backpay provisions of this Order. (c) Post at its facilities in Portland, Maine, copies of the attached notice marked "Appendix."6 Copies of the notice, on forms provided by the Regional Director for Region 1, after being duly signed by Respondent's authorized repre- sentative, shall be posted by Respondent immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that the notices are not altered, defaced or covered by any other material. (d) Notify the Regional Director, in writing, within 20 days from the date of this Order, what steps the Respon- dent has taken to comply herewith. 25 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 16 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." 39