Montgomery County MH/MR Emergency Service

MONTGOMERY COUNTY MH/MR EMERGENCY SERVICE Montgomery County MH/MR Emergency Service and District 1199C, National Union of Hospital and Health Care Employees, RWDSU, AFL-CIO. Case 4-CA-8937 December 13, 1978 DECISION AND ORDER BY MEMBERS PFNELIO. MURPHY. AND TRIFESDAIF. On July 26, 1978, Administrative Law Judge Rob- ert E. Mullin issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief in answer to Respondent's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Montgomery county MH/MR Emergency Service, Norristown, Pennsyl- vania, its officers, agents, successors, and assigns, shall take the action set forth in the said recom- mended Order. I Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to oser- rule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Standard Dr, Wall Productsr Inc., 91 NLRB 544 (1950). enfd. 188 F.2d 362 (3d Cir. 1951) We have carefullk examined the record and find no basis for reversing his findings. DECISION STATEMENT OF THE CASE ROBERT E MULLIN. Administrative Law Judge: This case i was heard on January 30, February 1, and February 14, 1978, in Philadelphia, Pennsylvania, pursuant to a IAttorney Gafni served as counsel of record for the Charging Parts throughout the hearing. Subsequent thereto, a blief for the Union was suh- mitted by the firm of Goldstein & Gloss, Philadelphia. Pennslvania. charge, duly filed and served,2 and a complaint issued on November I i. 1977. The complaint presents questions as to whether the Respondent violated Section 8(a)(1) and (3) of the National Labor Relations Act, as amended. In its an- swer duly filed, the Respondent conceded certain facts with respect to its business operations. but it denied all allegations that it had committed any unfair labor prac- tices. At the hearing, all parties were represented by counsel. All were given full opportunity to examine and cross-exam- ine witnesses and to file briefs. The parties waived oral argument. On May 1., 1978, briefs were received from all parties. On that same date. Respondent filed a motion for permission to file a reply brief. This was opposed by the General Counsel. After due consideration, Respondent's motion was granted and the parties were given until June I. 1978, to file reply briefs. Leatherwood Drilling Companr., 180 NLRB 893 (1970). On the latter date, such a brief was submitted by the Respondent. Upon the entire record in the case, including the briefs of counsel, and from my observation of the witnesses, I make the following: FINDINGS OF FACt I THE BUSINESS OF THE RESPONDENT Respondent, a nonprofit Pennsylvania corporation, is engaged in the business of providing emergency services and emergency care on its premises in Norristown, Penn- sylvania, for mentally disabled persons. During the year preceding issuance of the complaint, a representative pe- nod, Respondent received gross revenues in excess of $250,000 for services rendered: dunng that same period, it purchased and received goods and supplies valued in ex- cess of $50,000 from suppliers located within the Common- wealth of Pennsylvania who received these goods and sup- plies directly from points outside the Commonwealth of Pennsylvania. Upon the foregoing findings, Respondent concedes, and it is now found, that Montgomery County MH/MR Emergency Service, herein Respondent, or MCES, is an Employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 11 THE LABOR ORGANIZATION INVOLVED District 1199C, National Union of Hospital and Health Care Employees, RWDSU, AFL-CIO, herein Union, is a labor organization within the meaning of Section 2(5) of the Act. III THE ALLEGED UNFAIR LABOR PRACTICES A. Background and Sequence of Events Respondent is a nonprofit corporation which provides emergency psychiatric and other services for patients suf- fering from drug and alcohol problems. It is located in what is known as building 16 on the grounds of the Norris- : 'he charge was filed on September 23. 1977. 821 DECISIONS OF NATIONAL LABOR RELATIONS BOARD town State Hospital in Norristown. At that location it has 24 beds where patients customarily remain only for a short period while awaiting referral to other facilities for more extended hospitalization and treatment. It has approxi- mately 80 ernployees. At all times material, its medical ex- cutive director has been Dr. Angelo M. Zosa, and its ad- ministrator has been Dr. Naomi R. Dank. In the spring of 1977 3 the Union began an organiza- tional campaign among Respondent's employees. During the month of May, Respondent laid off a substantial num- ber of its staff. Included within that group were Howard I. Stabler, Gregory White, and Richard Tynan. General Counsel alleges that the layoffs of these last named were discriminatorily motivated. This allegation is denied by Respondent in its entirety. To the facts in connection with the foregoing, as well as related issues, we will now turn. B. The Respondent's Fiscal Problems Respondent receives over 90 percent of its revenue from payments made by Blue Cross and other health insurers which provide coverage for the patients. Other sources of income are grants from the Federal Government, Mont- gomery County, and various foundations. Since 1973, Re- spondent has received an annual grant from the Law En- forcement Assistance Administration (herein LEAA). Initially, this was awarded Respondent to finance an out- reach ambulance service for the Norristown community. Although the money for this grant is provided by the Fed- eral Government, the grant is administered through the Governor's Justice Commission of the Commonwealth of Pennsylvania. The money for this was given to MCES as a series of I-year grants, the first of which was made in 1973. Initially, 10 percent of the amount was provided by Mont- gomery County and the other 90 percent was paid through the LEAA. In the third year, there was a 50 percent-50 percent match. In its fourth year, if it were available, LEAA would provide 25 percent and a 75 percent match would be provided by Montgomery County for a total of $121,500. 4 MCES submitted its first application for the fourth year extension of the grant in December 1976. Early in April 1977, Dr. Dank learned from various officials of the Governor's Justice Commission that it was unlikely that the application would be approved. In addition, during that same month, an annual grant from the National Insti- tute of Drug Abuse expired on April I. This grant had been in the amount of $70,000 a year. Although it was not com- pletely terminated, it was cut back to the sum of only $777 a month from April through December 1977. Late in the month of April, and as a result of the ominous prospects of a severly restricted budget, MCES began to freeze posi- tions by not hiring replacements for employees who re- signed and by not filling vacant positions. During the week of April 24, MCES learned that there was practically no prospect that there would be a fourth year continuation of the LEAA grant. At about the same time, Respondent's All dates herein are for 1977. unless specifically noted otherwise. 4This total is based on the credible testimony of Dr. Dank. According to him, this amount exceeded 10 percent of the total budget for MCES in 1977 officials also found that Montgomery County would not extend any money unless the LEAA would guarantee its share. On April 27, [)r. Dank reported to the MCES executive committee that the current LEAA grant would expire on May 31, that the Governor's Justice Commission had indi- cated that a fourth year extension would not be granted, and that since that Commission would not meet again until August, severe spending restrictions would have to be im- posed by MCES. Respondent thereupon decided to lay off up to 12 mental health counselors, unit assistants, and tele- phone intake workers. Respondent further decided to lay off part-time employees first. Early in May, Dr. Dank ad- vised the supervisors to notify employees of this action. The first employees to be so notified, a part-time mental health counselor and three nurses, received termination let- ters dated May 3. During that same week in May, Dr. Zosa and Dr. Dank concluded that several full-time employees would also have to be laid off. Dr. George Furse, then Respondent's clinical coordinator, was given the responsibility for developing a rating system by which the mental health counselors, unit assistants, and telephone intake workers would be evaluat- ed for layoff. Prior to that time, Respondent had a system for periodic evaluation of these same employees pursuant to which theirjob performances in 6 to 13 categories were rated on a scale of I to 5. After the layoffs were completed Respondent went back to this system. However, for purposes of the layoff, Furse was given a free hand to de- velop a system which, purportedly. would be more objec- tive than the existing system for evaluating employees. On the basis of the record, it is clear that in May 1977, Respondent was faced with the likelihood of a severe de- crease in its income from grants, particularly that from the LEAA. Although, in fact, at a much later date 5 the LEAA grant was ultimately renewed, Respondent's administra- tion, on the basis of the facts in this record, certainly had cause for alarm in April and May. The decision to effectu- ate a layoff at that time was no more than a demonstration of prudent management in the face of what appeared likely to be a continuing budgetary problem. Whether the layoffs were carried out in a completely nondiscriminatory man- ner is another question which will be disposed of later herein. C. The Organizational Campaign At some time in February, employees at MCES first con- tacted the Union about an organizational campaign. Em- ployee Richard Tynan was one of those instrumental in making the first contact with Barbara Cable, 6 a representa- tive of the Union. In March. Tynan organized a union meeting for the employees on his shift. In mid-April, the Union held a meeting for Respondent's employees at a nearby motel at which time they voted to wear their union buttons to work on May 6. Members of the organizing committee also wore an additional button which identified them as being on that committee. In September 1977 In the transcript, this name is also spelled Kabel 822 MONTGOMERY COUNTY MH/MR EMERGENCY SERVICE Employees Charles Franz, Laura Harris, Yvonne Mayer, Joseph Scotti, Howard Stabler, Harrone Taylor, Richard Tynan, and Gregory White were members of the organiz- ing committee. From time to time during the organization drive, the members of that committee passed out union leaflets and posted them on employee bulletin boards throughout the plant. White was particularly active in dis- tributing union handbills and putting them on the bulletin boards. He also placed them in the mail boxes of all the staff, whether employees or supervisors. On May 9, several members of the organizing committee attempted to meet with Dr. Zosa as he was leaving his office. Employees within this group were Joseph Scotti, Laura Harris, Howard Stabler, and Richard Tynan. Scot- ti, acting as spokesman for the group, told the director that the Union represented a majority of the employees. He further told Zosa that he had a letter requesting recognition and that he wanted Zosa to accept the letter and grant the request. Zosa, however, declined to accept the letter and dismissed their attempt to meet with him because they had not gone through what he described as "accepted chan- nels." 8 On May 13, Zosa invited the union organizing commit- tee to meet with him in his office. Substantially, the entire committee was present, as well as several other employees. Zosa told the employees that, although he was not meeting with them as a union organizing committee and that his action was not to be construed as recognition of the Union, he would listen to their complaints. The employees then voiced a number of grievances about their working condi- tions and Zosa promised that he would consider them. He also told them that because of the impending loss of the LEAA grant that layoffs would be necessary. When asked as to the basis on which layoffs would be effected, Zosa told those present that seniority would be one of the crite- ria used. Later that day, Respondent held a staff meeting at which Zosa, Dank, and all of the supervisors were present. Ac- cording to Dr. Dank, this was a special meeting called to inform the staff as to the economic outlook for the coming months. Zosa spoke to the employees present about the necessity of a layoff, and Dr. Furse explained the job clas- sification system he had devised for evaluating the groups of employees who would bear the brunt of the layoff. On May 12, employee White posted notices entitled "You Have the Right to Organize" on all of Respondent's bulletin boards, including those located in the first and second floor lobbies. He also put them in all mailboxes at the hospital. Either on that occasion or earlier, White had posted another notice on bright orange paper which was captioned "Attention Dr. Zosa" and in which Zosa was taken to task for the layoff of an employee and for other actions which the union pamphlet described as harassment and reprisal. At the bottom of this leaflet there was a line which read "Issued by the Montgomery County Emer- gency Services Organizing Comm." and thereafter the names of seven employees were listed.9 7At this point Stabler had already received notice of his layoff The term in quotation marks is from the testimony of Richard Tynan. I.E.. Franz. Mayer. Scotti. Taylor. Tynan. and White Not long after the union pamphlets appeared on the lob- by bulletin boards, most of the members of the organizing committee were summoned to Dr. Dank's office. Accord- ing to Dr. Dank, on the afternoon of May 12, she talked with employees Harris. Mayer, and Taylor. Early the next morning she talked with White and Tynan. Dank testified that she gave substantially the same warning to both groups. According to her, she told them that it was against hospital policy to post anything on the bulletin boards without first asking Dianne Martin, her administrative as- sistant, for permission. Since that had not been done with reference to the union leaflets, she wanted to get the name of the individual who had broken the rule so that it would only be necessary to discipline that one individual rather than the whole organizing committee. She further testified that in her conversation with Harris, Mayer, and Taylor on May 12, none of them acknowledged any information as to the identity of the individual who had posted the material in question and that she kept these employees in her office for only a very brief period.'0 Tynan testified that when he and White were in Dank's office on the morning of May 13, the administrator told them that if they did not disclose the identify of the person who had posted the notices, that disciplinary action would be taken against every member of the organizing commit- tee whose name appeared on the pamphlet. According to Tynan, when he asked what she meant by "disciplinary action." she told him "administrative action," and when he further questioned her as to what that would entail, she told him that the type of discipline would be for the admin- istration to decide.' Tynan further testified that both he and White told her that they had never seen any notices on the bulletin boards which prohibited unauthorized post- ings. However, Tynan acknowledged that on leaving Dank's office he saw a sign on the lobby bulletin board which required that any notices be cleared with Dank's administrative assistant. Dianne Martin testified that at Dank's direction, in Oc- tober or November 1977, she posted signs on both the first and second floor lobby bulletin boards which read "Please see Administrative Assistant before Posting Anything." According to Martin, about once a week thereafter she checked the boards to ascertain whether any unauthorized notices had appeared.' 2 She testified that she received no specific instructions from Dr. Dank as to the type of no- tices which were to be allowed on the boards, and that that decision was left largely to her judgment and discretion. According to Martin, during the period when she was Dank's administrative assistant,'3 she removed notices about personal matters, want ads and garage sales, as well as notices intended only for employees of the Norristown t) Dank's account was credible and General Counsel offered no testi- mony as to Dank's meeting with the employees on the afternoon of May 12 which conflicted with that given by the administrator. IITvnan's testimon) as to the meeting with Dr. Dank on May 13 was credible and was not in conflict with the version of this meeting to which the administrator testified. :1 She described the bulletin boards in question as being about 2 feet by 3 feet in size. 13 At the time of the hearing, Martin was no longer in Respondent's em- ploy. 823 DECISIONS OF NATIONAL LABOR RELATIONS BOARD State Hospital which were inadvertently posted on the MCE(S bulletin boards. Martin testified that, in substance, her principal responsibility with respect to the bulletin boards was to clear them of stale notices and to make sure that other people came to her first before posting any new item. It was also evident from her testimony that, other than removal of notices which had been posted without Martin's approval, no other action was ever taken against any individual who had posted such a notice. Martin was a credible witness. It is now found that, as she testified, since about October or November 1977 signs had been on the bulletin boards in question which set forth the requirement that clearance from the administrative as- sistant was necessary before anything could be posted thereon. D. The Alleged Violations of Section 8(a)(l); Findings and Conclusions With Respect Thereto General Counsel alleged that the Respondent violated the Act: (I) by Dr. Dank's interrogation of White and Tyn- an on May 13 about the identity of the individual who had posted the union pamphlets on the bulletin boards and by threatening disciplinary action against such employee; and (2) by promulgating a new rule on that date requiring em- ployees to obtain administrative approval before posting notices on the bulletin boards. These allegations are denied by Respondent in their entirety. Dr. Dank's interrogation of White, Tynan, and the other members of the organizing committee about the identity of those who had posted the union notices was coercive and in violation of Section 8(a)(l). Polyurethane Products Com- pany, Inc., 168 NLRB 98, 99-100 (1967); Fremont Manufac- turing Company, Inc., 224 NLRB 597, 604 (1976). Insofar as indicated by the record herein, Respondent had never be- fore disciplined any employee for posting notices on the bulletin boards. Administrative Assistant Martin had re- moved numerous notices to which she had not given prior clearance, but no further action had ever been taken against those responsible for the postings. Consequently, Dr. Dank's threat to discipline the members of the organiz- ing committee for having participated in the notice posting constituted unlawful coercion and interference. On the other hand, the record does not support General Counsel's contention that Respondent's rule requiring clearance of all notices by Administrative Assistant Martin was newly promulgated on May 13. From the credible tes- timony of Martin it is apparent that the rule had been in effect for many months. Nevertheless, Dank's announce- ment on May 13 that discipline would be imposed on those who had posted the union notices without prior approval was different from any action taken by Respondent in the past. No evidence was offered that ever before had disci- pline been meted out to any employee who had failed to secure approval or clearance from Dank's administrative assistant before posting a notice. In the past, the offending notice had merely been removed. Respondent made no ef- fort to establish that there was any other penalty. Nor was any evidence proferred that on any earlier occasion Dr. Dank had sought to discover the identity of anyone who posted an unauthorized notice or threatened to invoke dis- ciplinary action against an), employee for such an offense. It is apparent from the findings set forth above, that prior to the union campaign, Respondent had no rule or policy on disciplining violators of the practice with respect to use of its bulletin boards. Consequently, here, as in Med- ley Distilling Company, Inc., 187 NLRB 84, 87 (1970), the establishment of such a rule "for the first time at the very birth of union activity is in itself a coercive step .... "(See also The Wm. H. Block Company, 150 NLRB 341 (1964). Accordingly, it is now found that Respondent further vio- lated Section 8(a)(1) with Dr. Dank's announcement on May 13, that the employee who posted the union notice on the bulletin boards would be disciplined, or in the alterna- tive, that all the employees listed on the notices as mem- bers of the organizing committee would be disciplined. E. The Layoffs of Gregory White, Richard Tynan, and Howard 1. Stabler, :indings and Conclusions With Respect Thereto 1. The issue as to company knowledge General Counsel alleges that White, Tynan, and Stabler were discriminatorily laid off. These allegations are denied by Respondent, according to whom these employees were laid off solely because of its anticipated lack of funds when Respondent learned that the LEAA grant would not be renewed. As found earlier herein, on May 6, most of the prounion employees wore union buttons when at work that day, and the members of !he organizing committee wore an addi- tional button identifying them as members of that commit- tee. General Counsel alleges that even before that date, Respondent was aware of the employees' union activity. There is some evidence of that, but it is not as persuasive as General Counsel would prefer to believe. Respondent's witnesses, in large measure, denied knowledge of any union activity among the employees until the day on which the buttons were worn. The three aforementioned employees were active union protagonists, and for at least 2 months before their layoffs they were engaged in solicitation of their coworkers. Gen- eral Counsel describes them in her brief as the most promi- nent of the employee activists in the union campaign. However, this is not clear from the record, for at the two meetings which the organizing committee had, or sought to have, with Dr. Zosa, the spokesman for the committee was another employee, namely Joseph Scotti. White testified that one morning late in April, John Sta- chowski, his supervisor and the intake coordinator, de- clared to him and to the others present in the office that "this is a bad time to organize a union, there's talk of [al grant loss from the LEAA, and we all know what that would mean." According to White, he questioned the sup- ervisor as to whether he was singling him out for that state- ment and Stachowski assured him that he was not, but then went on to declare that "it just seems like a bad time to have a union come in this building, because, you know, the loss of the grant money could mean lay offs." Stachowski never specifically denied having made these comments. He acknowledged having had a conversation with White, but 824 MONTGOMERY COUNTY MH/MR EMERGENCY SERVICE stated that he did not recall that it had transpired in quite the way in which White testified. White was a credible witness in connection with this incident. In view of Stachowski's weak responses when queried about the mat- ter, it is non found that the conversation occurred substan- tially as the employee testified. It is further found that the supervisor's remarks to White established that Stachowski had knowledge of the union organizational campaign that was then in progress. Apart from Stachowski's conversation with White, there is an additional basis for infering Respondent's knowledge of the employees' union activity. This arises from the fact that Respondent's facility had only 24 hospital beds, it oc- cupied two floors of a small building, and had only 80 employees. In view of the fact that the organizing was car- ried on by the employees both on and off the premises and involved the circulation of handbills among coworkers and the solicitation of authorization cards which culminated in the button wearing demonstration on May 6, it is unlikely that by the latter part of April Respondent's management was unaware of the employee involvement in the Union's campaign. Coral Gables Convalescent Home, Inc., 234 NLRB 1198, 1201 (1978); Tayko Industries, 214 NLRB 84, 87-88 (1974).'14 2. The layoffs During the month of May, Respondent laid off approxi- mately 15 part-time and 5 full-time employees. According to MCES, this action was taken solely for economic rea- sons. Early in May, at the direction of Dr. Zosa, Dr. Furse devised what he described as a point factor rating system whereby full-time mental health counselors, unit assistants, and telephone intake workers were evaluated for layoff. This step was taken notwithstanding the fact that Respon- dent already had a system for the periodic evaluation of its employees pursuant to which their performance was regu- larly rated. Furse testified that the system he devised was designed to make the evaluations on an objective rather than a subjective basis. Thus, individuals were rated in four areas: seniority, and skills in nursing, social services,. 5 and administrative work. From a mere listing of these criteria, f4 General Counsel also contends that another incident tends to estabhlish Respondent's knowledge of the employees' union actisity. Thus. employee Stabler testified that late in April, he and White were engaged in a discus- sion with Union Organizer Barbara ('able when Dr Furse walked by them. Furse, however, testified that he did not notice the employees on that occa- sion and that it was not until sometime in Maw that he learned of ('able's identity as a union representative. Furse's denial was credible. General Counsel offered in evidence what purported to be a cops of a petition which employee Stabler testified he and others had circulated among their coworkers In January. This was (;.(. Exh 7 Stabler testified "I believe I gave it to, or I showed it to. Dianne Attenborough one morning " Attenborough, however, crediblN denied that Stabler had ever handed the document to her. At the hearing, Respondent denied that an5 such petition could be found in its files. The exhibit in question did not purport to be the onginal; nor was it a complete cop)y. Stabler testified that the original had 25 signatures affixed thereto, whereas no signatures appear on (; C. Exh 7 Since the latter was not properly authenticated, it is now rejected In ans event. the circulation of the petition in January. which constituted protected concerted activity. was no more than remotely connected with the union organizational campaign which began some time later. 5 Intake workers were evaluated as to their inake and interpersonal skills rather than their nursing skills and social service abilities however, it is evident that, apart from seniority, all of the other items, on which Furse relied in his evaluation scheme, required the supervisors to use very subjective considerations in rating the employees for layoff. a. Gregory White White was a full-time intake worker who had started to work for MCES in 1974. He was hired as an ambulance driver at $7,500 a year and in May 1976 he was promoted to the position of intake caseworker. Thereafter, he was the sole intake worker on the midnight to 8 a.m. shift. On May 17, 1977, Stachowski notified him that he was being laid off at the end of the month. White credibly testified that when his supervisor informed him of the layoff he asked him whether the action resulted from his union activities, but that Stachowski made no comment. In a letter of recom- mendation dated June 1, and written after the layoff, the supervisor gave White fullsome praise for the high quality of his performance on the job and recommended him unre- servedly for further employment. Stachowski testified that he began the evaluation of the three full-time intake workers during the week of May 9. These were Robert Sattazahn, Frances Botto, and White. The latter was the least senior, so in that category he was ranked third. Stachowski acknowledged that when evaluat- ing intake and interpersonal skills he did not refer to a list of skills, or to the personnel files, but based his ratings solely on his overall impression of each individual's ability. This put White at an immediate disadvantage since Sta- chowski normally spent all his time on the day shift and was seldom at the hospital between midnight and 8 a.m., when White was on duty. Moreover, although Dr. Furse testified that a feature of the rating system that he devised was that employees would be rated by more than one sup- ervisor, the intake workers received no such review and were evaluated only by Stachowski.t 6 Dr. Dank testified that the part-time staff nimerbers were to be laid off first. Nevertheless, George Craddock and Charles Walker, two part-time intake workers, wsere re- tained, whereas White, a full-time employee, was laid off. Stachowski and Dank testified that the two were kept be- cause they held critical positions. However, Respondent's designation of their positions as "critical" was unrelated to the nature or quality of work performed. Dr. Dank conced- ed that it was based solely on the conclusion that their time slots could not be filled easily. Nevertheless, White. the full-time worker who was being laid off, was accorded no option to remain as a part-time intake worker in place of either Craddock or Walker. Stachowski acknowledged that 16 Stac;losski testified that he reprimanded White about tardiness during the course of the preceding winter and that he had entered a note on that matter in the emplocee' personnel file I he purported reprimand. howecer. was neser offered in e idence and Respondent subsequenils acknowledged that no such document could he found in White's personnel file In ans event. criticism of W hite's work performance was hardl' In keeping with the letter of recommendation vshlch Stachowskl wrote for the employee shortly thereafter In that document. certainly no routine letter of reference. Sta- chowkl described White as an emplosee wh'ose "skills and perfor- mance b. have been exemplars I have found him to be a reliable and extremely resourceful worker, capable of handling acute and critical situa- tions with professionalism and sensitivil tio the needs of client, and the conii unit ' 825 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he did not offer White the opportunity of doing any part- time work. Early in May, Thomas Costello was a full-time mental health counselor on the midnight shift. It appears that, for reasons of his own, Costello preferred to be an intake worker. In May or June he was allowed to transfer over to the job of intake worker on the same shift. Prior to that time he spent several weeks receiving on the job training from none other than White. Stachowski testified that he arranged to have Costello "spend at least an hour or so [each night] in training with Mr. White, and longer if possi- ble .... Stachowski conceded that Costello did not have as much education as White, and, of course, that Costello did not have as much experience as an intake worker. Nev- ertheless, on May 17, White was notified that he was being laid off and within a short while thereafter Costello, his trainee, became a full-time intake worker. In view of foregoing circumstances and in the light of the above findings, it is now found that White was selected for layoff on the basis of his union activities rather than his work record. International Signal and Control Corp., 226 NLRB 661, 665-666 (1976). By this course of conduct Re- spondent violated Section 8(a)(3) and (I) of the Act. b. Howard 1. Stabler and Richard Tynan Stabler was a part-time mental health counselor '7 on the third shift. He had begun work in January 1977. On May 6, he was notified by Dianne Attenborough, director of nurs- ing, and Dr. Furse, that he was being laid off effective on May 13. At the time the supervisors met with Stabler he was wearing the union buttons that all the members had agreed to wear that day.?i Tynan was first employed by MCES in June 1976. He worked as a part-time mental health counselor on the mid- night shift under Attenborough. He was notified of his lay- off on May 16. General Counsel asserts that both Stabler and Tynan were offered full-time employment within only a few weeks prior to their layoff. This is not entirely correct, as will be seen from the facts set forth below. Early in April. Stabler learned that Randy McNamee. a fellow employee, then working full time, was resigning. He thereupon asked Attenborough, his supervisor, whether he could have McNamee's position when the resignation be- came effective. Attenborough was receptive to his request, but he insisted that Stabler accept McNamee's work sched- ule which involved being at the job every weekend. Stabler was unwilling to accede to this condition and no final reso- lution of this difference was achieved. Tynan likewise man- ifested a desire to have McNamee's position, and in a con- versation with Attenborough early in April he also - Also, known in the record as a menial healih , orker "I Stabler testified that at the time that Furse and .ttenhborouch mel A iith him on May 6, he was wearing both his union memibership button and his organizing committee button. The two supervisoirs testified thllat theN had no recollection that Stabler had any such insignia on thai occasion. lovAever. Patricia Buch, a mental health counselor who worked on the samni shift a, Stabler and who was still in the emplo) of Respndentl hen she testified. corroborated Stabler's testimon) to the effect that hc was wearing his union buttons while at work on May 6. requested consideration for this opening if it materialized. The supervisor told him that Stabler would be given prefer- ence since Stabler had put in his request first, but she did express the hope that something also could be done for Tynan in June. In neither instance as to Stabler or Tynan can it be held that Respondent had offered full-time jobs in the weeks immediately before their layoffs. As to both of them, Sup- ervisor Attenborough manifested great interest. But as to Stabler who declined to work the hours on McNamee's shift, no decision was ever reached because no shift that could be tailored to suit Stabler's convenience had been agreed upon. As to Tynan, no promise had been made other than that if a full-time opening arose in the near future he would be considered. During the month of May, Respondent laid off all the part-time mental health counselors. This included not only Stabler and Tynan, but also Maria Benson, William Me- chuda, Jessie Gray, Davis Farrell, Gary Olsen, and Curtis Friday. Similarly, part-time employees in other job classifi- cations were likewise reduced in force. This number in- cluded four registered nurses, a psychologist, two intake caseworkers, a janitor, a unit assistant, and a food service aide. Several full-time mental health workers were also laid off that same month, viz, Joy Bolton, Michael Zahner, Har- rone Taylor, and Joseph Scotti. The latter, of course, had been the employee spokesman on the two occasions when a delegation of prounion staff members sought to meet with Dr. Zosa prior to the layoffs.' On the facts set forth earlier, it has been found that early in May Respondent was faced with a budgetary crisis which necessitated some reductions in its staff. Thereafter, during the latter part of the summer and after MCES was finally assured that the LEAA grant would be renewed, some raises were granted and some of the full-time workers who had been laid off were offered reinstatement. At the time of the hearing in this matter, however, none of the part-time mental health workers had been recalled. Stabler and Tynan were among the organizational lead- ers and their union activities had come to the attention of Respondent prior to their layoffs. However, on the facts presented in this regard, it does not appear that, when Re- spondent was faced with a fiscal crisis, Stabler and Tynan were treated any differently from the rest of the part-time mental health counselors who were all laid off. Although the matter is not entirely free from doubt, on this record, the undersigned concludes and finds that General Counsel has not proved by a preponderance of the evidence that either Stabler or Tynan was discriminatorily terminated. F. The Reinstatement Issue At the time of his layoff, White was earning $9,900 a year as a telephone intake worker. On July 27, Respondent offered him a job as unit assistant at $6,500 a year which White declined. Neither at the hearing, nor in its brief, did Respondent contend that this offer was for a job that was substantially equivalent to the one which White held at the 1I he complaint, howeser. does not aliege that Scotti was discriminato- rlIs treated 826 MONTGOMERY COUNTY MH/MR EMERGENCY SERVICE time of layoff. Later, however, and in a letter dated Sep- tember 23, 1977, Dr. Zosa wrote White to inform him that Respondent had received confirmation that the LEAA grant had been approved for the coming year and that MCES was trying to get the ambulance service back in operation. The letter stated that there would be several openings and closed with the comment: If you are interested, please contact Barbara Stiteler by September 30, 1977. If we do not hear from you by that date, we will assume that you are not interested in applying for a position with the van service. 20 The letter made no reference as to the salary that Respon- dent proposed to pay for work on the ambulance. How- ever, Dr. Dank testified that the job described would have paid the same rate as the employee was receiving prior to his layoff. White did not respond to this communication, and on October 4, 1977, a notation was placed in his per- sonnel file to the effect that he had been permanently dis- charged for failure to accept recall.21 Both at the hearing and in its brief, Respondent contends that the letter of September 23 constituted a valid offer of reinstatement which White declined. There is no merit to Respondent's position. An employee who is discriminatorily discharged or laid off is entitled to an unequivocal and unconditional offer of reinstatement to his former job, if it still exists, and if it does not, then to an equivalent position. An invitation for an employment in- terview or an offer of a new job is not an unequivocal and unconditional offer. Controlled A lloy, Inc. and Harlin Preci- sion Sheet Metal Fabrication Co., Inc., 208 NLRB 882, 883 884 (1974). Nor does an inquiry as to whether an employee is interested in employment constitute an unconditional of- fer. E. L. Barr and Merle Barr, d/b/a Barr Packing Compa- ny, 82 NLRB 1, 4 (1949); Hydro-Dredge Accessorv Co., 215 NLRB 138, 139 (1974). Here, Respondent merely suggest- ed that if White were interested in a job he should contact Barbara Stitler, at which time qualifications and require- ments for the opening would be discussed. Such an inquiry does not constitute an unequivocal offer of reinstatement. Nor was White under an obligation to answer the letter from Dr. Zosa. When an employee is unlawfully terminat- ed, it is the employer who has the obligation to remedy the wrong "by seeking out the employee and offering reinstate- ment." Southern Greyhound Lines, Division of Grevhound Lines, Inc., 169 NLRB 627, 628 (1968), enfd. 425 F.2d 1299, 1303-04 (3d Cir. 1970); J. H. Rutter-Rex Manufactu- ing Co., Inc., 206 NLRB 656, 657-658 (1973). And until the discriminatee has received an unconditional offer from his employer he is incapable of refusing reemployment. REA Trucking Company., Inc., 176 NLRB 520, 526 (1969), enfd. 439 F.2d 1065, 1066 (9th Cir. 1971). Accordingly, it is now held that Respondent never extended to White a valid offer of reinstatement.22 20 An Indentical letter was sent to each of the fi e full-time emploees who were laid off on May 31. vi:. Joy Bolhon Joeph Scotttl. larrone i a'- lor Michael Zahner. and White fl Dr. Dank testified that none of the fise emplo)ees named abohe mani- fested any interest in the letter of September 23 and Ihat all of them were permanently discharged as of October 4 22 Both at the hearing and in its brief. Respondent Intimates Ihat the real CONCLUSIONS OF LAw 1. Respondent is engaged in commerce and the Union is a labor organization, all within the meaning of the Act. 2. By discriminating in regard to the hire and: tenure of Gregory White, thereby discouraging membership in the Union, Respondent has engaged, and is engaging in, unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 3. By interfering with, restraining, and coercing its em- ployees in the exercise of the rights guaranteed in Section 7 of the Act, Respondent has engaged, and is engaging in, unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 5. General Counsel has not proved by a preponderance of the evidence that Respondent engaged in any violations of the Act other than as herein specifically found. THiE REMEDY Having found that Respondent has engaged in certain unfair labor practices, it will be recommended that Re- spondent be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent discriminatorily termi- nated Gregory White, it will be recommended that Re- spondent be ordered to make him whole for any loss of earnings he may have suffered from the time of his dis- charge to the date of Respondent's offer of reinstatement. The backpay shall be computed in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest computed in the manner pre- scribed in Florida Steel Corporation, 231 NLRB 651 (1977).2 3 It will be recommended that said Respondent be required to preserve and make available to the Board, or its agents, payroll and other records to facilitate the computa- tion of backpay due. Since "a discriminatory discharge of an employee . . . goes to the very heart of the Act" (N.LR.B. v. Entwoistle Manufacturing Company, 120 F.2d 532, 536 (4th Cir 1941)), it will be recommended that Respondent be ordered to cease and desist from infringing in any manner upon the nghts guaranteed in Section 7. Upon the foregoing findings, conclusions, and the entire record, and pursuant to Section 10(c) of the Act, I make the following recommended: reas.on White did not return to M( ES '.a, because he was collecting unem- plosment benefit, while working In the side. There is testsmon) in the record hb Kenneth Courage, issstanl to D)ank. that during a chance en- counter atl a baseball game in the ,ummer of 1977. White told Courage that he Al, ermpllsed and sas also collecting unemplo ,ment compensation VWhite never denied this testimon'. Ilowever, In view of the finding. .upra, that Respondent never .ahdl, offered to reemp! ,) White. it is unnecessary to speculate on what \'hite's respotlne wsould have been had Respondent unconditiona ll] offered to rinlate him it the poition he had held at the time ,f his la!off Sec. generall',. t1s Plumbnihng & lleasi, ( ,. 138 NL RB 716 (196). 827 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER 24 Respondent Montgomery County MHI/MR Emergency Service, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Laying off, or otherwise discriminating against any employee because of activity on behalf of, or membership in, District 1199C, National Union of Hospital and Health Care Employees, RWDSU, AFL CIO, or any other labor organization. (b) Coercively interrogating any employee concerning that individual's union activity, or that of other employees, in a manner constituting a violation of Section 8(a)(l) of the Act. (c) Discriminatorily applying the rules on use of the bul- letin boards for the purpose of obstructing organizational and collective-bargaining rights. (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self- organization, to form, join, or assist any labor organiza- tion, to bargain collectively through representatives of their own choosing, or engage in concerted activities for the pur- pose of collective bargaining or other mutual aid, or to refrain from any or all such activities. 2. Take the following affirmative action which is neces- sary to effectuate the policies of the Act: (a) Make whole Gregory White in the manner set forth in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records neces- sary, or appropriate, to analyze the amount of backpay due. (c) Post at its premises in Norristown, Pennsylvania, copies of the attached notice marked "Appendix." 25 Cop- ies of said notices, on forms provided by the Regional Di- rector for Region 4, after being duly signed by Respon- dent's authorized representative, shall be posted by it for a period of 60 days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 4, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. Ir IS FURTHER ORDERED that the complaint be dismissed insofar as it alleged unfair labor practices not found herein. 24 In the event no exceptions are filed as provided in Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102 48 of the Rules and Regulations, be adopted by the Board and become its findings. conclusions. and Order, and all objections thereto shall be deemed waived for all purposes. 2' In the event that this Order is enforced by a judgment of the United States Court of Appeals. the swords in the notice reading. "Posted by Order if the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States C(ourt of Appeals Enforcing an Order of the National Labor Relaiions Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF HE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discourage membership in District 1199C, National Union of Hospital and Health Care Employees, RWDSU, AFL-CIO, or any other labor organization by laying off, or otherwise discriminating against our employees because of their union or con- certed activities. WE WILL NOT coercively interrogate any employee concerning that individual's union activity, or that of other employees, in a manner constituting a violation of Section 8(a)(I) of the Act. WE WILL NOT discriminatorily apply the rules on use of the bulletin boards for the purpose of obstructing organizational and collective-bargaining rights. WE Wi.L NOr in any other manner interfere with, restrain, or coerce employees in the exercise of their right to self-organization, to form, join, or assist the above-named Union, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutu- al aid or protection, or to refrain from any or all such activities. WE WILL make whole Gregory White for any loss of pay suffered because of our discrimination against him. MONTGOMERY COUNTY MHMR EMERGENCY SER- VI( F 828