Austin Developmental Center, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Austin Developmental Center, Inc. and General Ser- vice Employees Union, Local 73, Service Employ- ees International Union, AFL-CIO. Case 13-CA- 14676 June 7, 1978 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND TRUESDALE On December 12, 1977, Administrative Law Judge Elbert D. Gadsden issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief, and counsel for the General Counsel filed a brief in answer to Respon- dent'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 2 of the Administrative Law Judge and to adopt his recommended Order, as modified herein. I The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibili- ty unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc. 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. 2 In its exceptions to the Administrative Law Judge's Decision Respon- dent urges, inter alia, that the Board reconsider its assertion of jurisdiction over Respondent's operations in Austin Developmental Center, Inc., 226 NLRB 134 (1976). In this connection the Respondent contends that the Administrative Law Judge in the instant case erred in refusing an offer of proof that allegedly would have established the "close connection and intri- cate relationship" between Respondent and the State of Illinois and the extensive regulation of Respondent's operations by state agencies. We find no merit in this exception. In so finding, we note that Respondent concedes that it was "aware" of the regulations and other documents it now offers at the time of the prior representation proceeding in which jurisdiction was raised and litigated, yet Respondent offers no valid explanation for its fail- ure to enter this material into the record during the representation case hearing or to move to reopen the record in the representation case at any time prior to the Board's 1976 decision. In any event, we find nothing in the regulations and documents offered that would alter the conclusion that there is no state control over Respondent's labor relations policies sufficient to warrant reconsideration of our prior decision. In addition, Chairman Fanning and Member Truesdale have found that the so-called intimate connection test is not a relevant consideration and is not a basis for declin- ing to assert jurisdiction. See, generally, Catholic Bishop of Chicago, 235 NLRB 776 (1978): Chicago Youth Centers, 235 NLRB 915 (1978). In adopting the Administrative Law Judge's recommendation that the bargaining obligation should be dated from August I, 1975, we specifically note that the record supports a finding that Respondent unlawfully interro- gated employee Victor Calimee and other employees on that date shortly after receiving the Union's demand for recognition. We also note that on that date a majority of unit employees had signed valid authorization cards in favor of the Union. Finally, in issuing a bargaining order in this case, we find it unnecessary to rely on Steel-Fab, Inc., 212 NLRB 363 (1974). a case cited by the Administrative Law Judge in his Decision. 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, as modified below, and hereby orders that the Respondent, Aus- tin Developmental Center, Inc., Chicago, Illinois, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: Insert the following as paragraph 2(b) and reletter the subsequent paragraphs accordingly: "(b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order." DECISION STATEMENT OF THE CASE ELBERT D. GADSDEN, Administrative Law Judge: Upon unfair labor practice charges filed on September 9, 10, and 17 and November 7, 1975, and October 7, 1976, by General Service Employees Union, Local 73, Service Employees In- ternational Union, AFL-CIO (herein called the Union), against Austin Developmental Center, Inc. (herein called Respondent), a complaint was issued by the General Counsel of the National Labor Relations Board on Decem- ber 30, 1976. In substance, the complaint alleges that Re- spondent interrogated its employees and restrained them in their union activity during nonworking time, in violation of Section 8(a)(l) of the National Labor Relations Act, as amended; that it discharged several of its employees be- cause of their union activity, in violation of Section 8(a)(3) of the Act; and that, by such conduct heretofore described, it rendered a free and fair election impossible, thereby making Respondent's refusal to bargain with the Union a violation of Section 8(a)(5) of the Act, and warranting the issuance of a remedial bargaining order. Respondent timely filed an answer denying that it has engaged in any unfair labor practices as alleged in the com- plaint. The hearing in the above matter was held before me in Chicago, Illinois, on March 28, 29, 30, and 31, 1977. Briefs received from counsel for the General Counsel, counsel for the Charging Party Union, and counsel for the Respon- dent, respectively, have been carefully considered. Upon the entire record in this case and from my obser- vation of the witnesses, I hereby make the following: 236 NLRB No. 83 724 AUSTIN DEVEL.OPMENTIAL CENTER. INC. FINDINGS OF FACT I. JURISDICTION Respondent is now, and has been at all times material herein, an Illinois nonprofit corporation with its principal places of business located at 5151 West Madison Street and 6500 Irving Park Road, Chicago, Illinois. Based on the fact that the employer had gross revenues of $309,679 in its fiscal year ending June 30, 1975; that, of this amount, $236,837 were received as a grant from the Illinois Department of Mental Health; that $56,954 was received from contributions in kind; and that $11,698 was received in tuition reimbursement from the Chicago Board of Education, the Board held in its Decision reported at 226 NLRB 134, of which I take administrative notice, that the employer operates a specialized child care institution with gross revenues in excess of the jurisdictional standard of $250,000 for such an institution, and therefore further held that it will effectuate the policies of the Act to assert jurisdiction herein. Accordingly, I herein find that the Re- spondent is an employer engaged in commerce within the meaning of Section 2(6), and (7) of the Act. Etheria Brown: president and director of the board-James Elam: secretary-Jacqueline Buckner; directors of educa- tion-Linda Doras and Gail Schaetzke; board member-Mr. Jackson. The parties further stipulated that: All employees employed by Respondent at its Madi- son Avenue facility and at its Chicago-Read facility, but excluding guards and supervisors as defined in the Act, constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. On August 1, 1975, the following-named individuals were employed by Respondent in the unit herein described above: Victor Calimee Leroy Cooper Lois Cross June English Shirley Hill Artricia James Robert Vancil Glenn Jones Henry Katz Pearl Luvene Lorraine Rucker Alan Schonberger Hattie Sherry 11 THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits, and I find that General Service Employees Union, Local 73, Service Em- ployees International Union, AFL-CIO, herein called the Union, is now, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. IIl. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Facts Respondent, Austin Developmental Center, Inc., is an Illinois nonprofit corporation engaged in providing educa- tional and counseling services for children and families who reside in the Austin community of Chicago. Respondent's operational activities are carried on at two facilities located at 5151 West Madison Avenue (herein called the Madison post or Madison facility) and 6500 Irv- ing Park Road (herein called the Irving Park post or Irving facility), respectively. The Madison post is the counseling center and it is used exclusively for counseling children and families. Staff at the Madison post consists of psychol- ogists, mental health therapists, a cook, and a security guard. The Irving Park facility is located several miles from the Madison post, and it is the Respondent's school, which has a staff consisting of teachers, community workers (teachers aides), and a cook, all of whom work under the immediate supervision of a director of education. Jurisdiction for the operation of Respondent is vested in a board of directors, and general supervisory authority over all of its personnel is vested in the executive director, Mrs. Illinois Daggett. The parties stipulated that the following-named persons at some time were, or are now, supervisors within the meaning of the Act: clinical directors-Esther Dubey and Prior to July 1, 1974, Austin Developmental Center, Inc., herein called the Center or Respondent, was operated by an advisory group under the jurisdiction of the State of Illinois. The State had a staff which operated the program of the Center on a daily basis, Monday through Friday, 8:30 a.m. to 4 p.m. or 9 a.m. to 5 p.m. It was felt by mem- bers of the advisory group that the needs of the community were not being met by the operatinal hours of the Center since there were no evening hours for service or home visits. On and subsequent to July 1, 1974, the Center was operated under the jurisdiction of a board of trustees, with administrative and supervisory authority vested in the ex- ecutive director, Illinois Daggett. Mrs. Daggett brought to the Center a background of 3 years' college credits, with no prior experience as a director of an agency such as the Center, but 20 years' experience as a paraprofessional com- munity worker. That is, she had served on numerous boards and staffs of various social and service community organizations and agencies. When the board of trustees and Mrs. Daggett undertook operation of the Center on July 1, 1974, they retained the same staff, and a climate of considerable concern and dis- may emerged as a result of new changes in policies and practices issued for implementation by the new director. Such concerns were so intense that the staff asked Director Daggett to meet with them for discussion, but she declined to do so.' B. The Union Activity of Respondent's Employees Alan Schonberger, a psychologist, commenced working for the Center in July 1970, when it was under the jurisdic- tion of the State. He and other staff members did individ- ual, group, and family counseling with children and fami- I he facts set forth habove are undisputed and are not in conflict in the record. 725 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lies. He worked at the Madison facility but went to the Irving Park facility once a week. In July 1975, he called Local 73 and asked Union Representative Cecil Norbert about employee organization information. Thereafter, he contacted employees Lorraine Rucker, Henry Katz, Alan Calimee. and Lee Cooper. All except Lee Cooper worked at the Madison facility. Schonberger said he told them he was concerned about what was happening at the Center; that he had contacted Local 73 and suggested a meeting with its representative, Cecil Norbert, to discuss employee options. Thereafter, on Friday, July 11, 1975, he (Schonbeiger), Lee Cooper, and Victor Calimee met at the apartment of Lorraine Rucker for about 1 hour. Some of the employee complaints discussed with Norbert were Respondent's ex- tension of the workweek to Saturday without any compen- sation; the elimination of their flexible hours of work to deal with clients in the evening, that is, the extension of the working day to 10 hours, although they only worked 8 hours; and the firing of the acting director on the same day said director submitted his resignation, without giving him the required 2 weeks' notice. Schonberger said he signed a union authorization card on the same day as the first meet- ing (July 11), and he observed Lorraine Rucker and the other employees in attendance sign cards. As the meeting concluded, Lee Cooper was to contact the employees at the Irving Park facility for another meet- ing, but Cooper did not follow through because he resigned from the Center and the Union the following week. There- upon, Schonberger said he talked to Irving Park employees Hattie Sherry, Lois Cross, Glenn Jones, Robert Vancil. and Shirley Hill. Consequently, a meeting was held at employee Diane Allen's house on July 28, 1975. Present at that meet- ing were Schonberger, Shirley Hill, Lorraine Rucker. Glenn Jones, Victor Calimee. Pearl Luvene, Henry Katz, Lois Cross, and Union Representative Cecil Norbert. The credited testimonial and documentary evidence of record established that the following-named employees signed single purpose union authorization cards on the dates set opposite their names as follows: Alan Schonberger Hattie Sherry Pearl Luvene Shirley Hill Henry Katz Glenn Jones Victor Calimee Lois Cross Diane Allen Artricia James Lee Cooper July 11, 1975 July 19, 1975 July 14, 1975 July 28, 1975 July 11, 1975 July 28, 1975 July 28, 1975 July 28, 1975 July 11, 1975 July 14, 1975 July 11, 1975 On Friday, August 1, 1975, just prior to a staff meeting of employees, Union Representative Gerry Lee, accompa- nied by a second union agent, visited the Madison Avenue office about 3 p.m. and spoke to Executive Director Illinois Daggett. Lee advised Mrs. Daggett that 13 of her employ- ees wanted the Union's representation and asked her to recognize and bargain with the Union as agent of Respondent's employees. Mrs. Daggett did not agree and she did not recognize the Union, but she advised the Union she would consult with the board.2 C. Respondent's Conduct After the Union Demanded Recognition Alan Schonberger testifed that on August 4 (Monday) Diane Allen came out of Mrs. Daggett's office and in- formed him that Mrs. Daggett wanted to see him in her office. He said he went into the office and, in the presence of secretary Jackqueline Buckner, Mrs Daggett said: "Alan, I heard you were the first one to contact the Union," and he replied, "I don't think we should be discussing it." Mrs. Daggett said, "Is that your attitude?" He remained silent for a few seconds, and she said, "Is that all you're going to say?" and he said, "Yes." During his lunch hour Schonberger said he called the Union and told Lee what Mrs. Daggett had said to him, and that she had called other employees into her office for the same kind of ques- tioning. Mrs. Daggett acknowledged that she received a call from Lee, or the Union, and was advised that it was unlawful for her to question the employees about their union interest or activities. According to Schonberger, about 2 p.m., on Tuesday, August 5, 1975, Esther Dubey came to him, Henry Katz, and Lorraine Rucker, and told them that Mrs. Daggett had said Victor Calimee had informed her (Mrs. Daggett) about the employees' organizing activities(who was present at the organizing meeting, who signed cards, and that Schonberger had excluded Esther Dubey from the meet- ing). Schonberger's testimony in this regard was essentially corroborated by employee Henry Katz. Katz also testified that Mrs. Daggett called him into her office in August and told him that she knew there was employee dissention, and suggested that he not become involved. Pearl Luvene testified that during the second week in August she was called into Mrs. Daggett's office where Jac- queline Buckner was taking notes, and Mrs. Daggett asked her had she signed a union card requesting the Union to represent her. When she asked Mrs. Daggett what card, Mrs Daggett pulled out two business cards and asked her did she recognize the names thereon, and Luvene said she did not. (The cards were Representative Lee's and another person's from the Union.) Mrs. Daggett then asked her if there was anything that she did not like, or if there was something she wanted to talk with her about, how the job was going, did she feel a need for someone to represent her, and did she sign for a union to represent her. Luvene said she responded that she did not feel she should answer the questions. In this regard, Victor Calimee, who left the employ of Respondent on April 15, 1976, testified that he too was present in the early August conference with Mrs. Daggett and Pearl Luvene, and that Mrs. Daggett asked him had he signed a card and he told her that he did sign a card. He said she also asked whc was present at the union meeting and who signed union authorization cards. He said he told 2 The facts recited in sec B. supra. were established by a composite of the credited testimony of Alan Sclionberger, other employees who signed union authorization cards, and Executive Director Illinois Daggett. 726 AUSTIN DEVEILOPMENIAL CENTER, INC('. her, to the best of his recollection, the names of the persons who were present and who had signed cards. Mrs. Daggett then said no agency had a union. and that there was not going to be a union at Austin. She told him it hurt her that he had signed a union card, and she asked him whN did he sign the card. He said he told her he thought it was a good thing and he signed one. Mrs. Daggett acknowledged that she had called employees Pearl Luvene, Lorraine Rucker. Alan Schonberger, and Victor Calimee into her office and asked them about their organizing activities. Mrs. Daggett either admitted, or did not deny, that she questioned said employees. According to Schonberger, about 3 p.m.. on August 7. 1975, he picked up the telephone and Hattie Sherr' in- formed him that she had been fired. They (Schonbercer and Sherry) talked about 15 minutes and, about s seconlds later, Mrs. Daggett came to his desk and told him she wanted to see him in her office. Schonberger continued as follows: A. She said, "Alan, you just spoke fifteen minutes with Hattie Sherry. If you want to do your union thing, you do it on your own time." Q. Did she give any description or explain anything about when you could or could not do union activity? A. No, she didn't. Q. What if anything, did you say? A. I said, 'I feel this is intimidation." Q. Did she make any response? A. She repeated that if you want to do your own stuff, do it on your own time. [Emphasis supplied.] On Thursday, September 11, 1975, Schonberger said he had a conversation with Earl Clark, the janitor, which was as follows: A. I was at my desk doing some paper work. E arl was singing as he was cleaning up with the broom. And he comes by my desk and says, "He), Alan. swh, don't you go out and get some barbeque?" And I didn't say anything. Earl said. "Oh. Alan is not talking today." And I said. "I don't talk to sell outs." And Earl said, "Sell out. I am not a sell out I never was in." And I said, "Well, at least I don't kiss ass." At that point Earl said, "Whose ass did I kiss?" And I said. "Who do you think?" And he said, "Whose ass did I kiss?" And at that point, Earl came over to my desk and I got up and left my desk to go throw out some paper. Earl said, "Mrs. Daggett is my friend." And I said. "I call it like I see it." That was the first conversation we had that evening. About an hour later, Schonberger said they had a few more words and overheard Clark telling Victor Calimee "sell out," and they both laughed. D. Respondent's Discharge of Alan Schonherger On Friday., September 12, 1975, Schonberger received a call on the intercom system asking him to come to M\rs. Daggett's office. He reported and found present there Mrs. [)aggett. Mr. Elam. Earl Clark, and Jacqueline Buckner. who was taking notes. Mrs. I)aggett asked (Clark to tell what had happened on the previous evening between him and Schonberger. Although he had never received a warning that he would he fired or that his work was unsatisfactory, Schonberger said he was fired and ('lark was not fired. About 2 weeks later he said he received a written notice of his discharge ((G. .. h. 7). advising that he was discharged without 2 weeks' notice because of his disrespect to Mrs. Daggett and the C(enter. E. 7he Dis chargte of Other Emnploees by the Respondent lHattie Sherry was hired as a community worker and teachers aide on December 24. 1974. at Irving Park. I)ur- ing mornings, she assisted the teachers in the classroom and in the afternoons she made home visits to the homes of children. Sherry testified that on July 19. 1975. she attend- ed an organizing meeting of the employees and signed a union authorization card. On or about August 5 or 6, 1975, she left home and made a home visit between 7:15 and 7:20 a.m. to pick up the Wiley boy (one of her clients) so he could make a camping trip. The children left Irving Park for the camp about 1:30 or 1:45 p.m. She said she had a home visit to make that afternoon, so she signed out on the trip card (G. C. Exh. 10) about 2 p.m. She left Irving Park and went to Austin and Lake Streets (about 35 min- utes' drive) where she had lunch for about 35 minutes to an hour. Employees did not have particular lunch periods as such but. rather, ate lunch whenever the' could. After lunch she satid she went to the home of Mrs. Wiles where she was met bN Mrs. Wiley's mother who said, "Hattie, I just talked to you on the phone." Sherry said she advised her that she had not called because she was right around the corner from the house. Iheir conversation continued as follows: A. I asked her. "W hat do you mean you just talked to me on the phone." She said. "You just called and said \ou weren't coming." I said. "You couldn't have just talked to me because I was on my wa' here." She said. "Well, whoever I talked to they sounded funn' and I asked them if they had a cold." I said, "No. I don't have a cold and I don't know who you were talking to." In the process I thought. you know. about going and calling the supervisor. Sherrs said she then asked Mrs. Wiley for permission to use her telephone and she called and obtained the number of her super- isor. Linda Doras. who was at the campsite 50 miles from the city of Chicago. She was unable to contact Supervisor Doras so she talked with the grandmother (Wi- le) about the child until about 5:15, when she left for home. Sherrs also said that when she first started work at the Center they' were to indicate on the trip card their time of departure and destination (the name of the famils). However. about a month aeo. she said they were required to also indicate the address and telephone number of the famils the, were visiting. On or ibout August 7. 1975, Sherry said, Mrs. Daggett 727 DECISIONS OF NATIONAL LABOR RELATIONS BOARI) called her into Mrs. Daggett's office and asked her where she was on the previous day. When she told Mrs. Daggett that she was at the Wiley's house, Mrs. Daggett said, "No, you were not," because she (Mrs. Daggett) was there. Sher- ry disputed Mrs. Daggett's contention, and finally Mrs. Daggett asked her why did she have the wrong address and telephone number on the trip sheet. Sherry said she kept the number in her car because the Wileys changed their number so frequently. Mrs. Daggett then said she could not tolerate this sloppiness and advised Sherry that she was terminated. Sherry said she was not given any warning and that she had never been told her work was unsatisfactory. With respect to Hattie Sherry's departure for a home visit on August 6. community worker Joan English testified that, as Hattie Sherry proceeded to leave the office, she saw Sherry hand something to Glenn Jones and say, "If any- thing comes up, this is where I will be." When Hattie Sherry signed out she signed as follows: "Hattie, Dorothy Wiley, 744 North Parkside, 921-7345. ex- pected to return-Wednesday a.m." On August 6, 1975, Mrs. Daggett said, she tried to reach Sherry by telephone and was informed that she was visiting with the Wiley family. She said she finally got the Wileys on a different telephone niLmber from the one Sherry had recorded, and was informed by Mrs. Wiley's mother that Sherry had picked up the little boy at 7:30 that morning. but she was not there then and was not expected to return. At or about 4 p.m., Mrs. Daggett said she took the forms she wanted to discuss with Sherry and drove to Mrs. Wiley's home, arriving there about 4:10 p.m. When she was informed by the Wiley family that Sherry had not re- turned, she stayed until about 4:45 p.m. On the next day, Mrs. Daggett said, she asked Sherry why she did not have the correct telephone number rec- orded on the sign-out sheet for a client (Wiley) she had been servicing for 6 months. The correct address of the Wiley family was 324 North Parkside, and Sherry had 744 North Parkside. Since Sherry's explanation was simply that she made a mistake, Mrs. D)aggett said she informed Sher- ry that such mistakes were the kind the Center did not want and that she was in the wrong program; that she could not accept this as a mistake because she felt Sherry had falsified her trip sheet; that she was not available and could not be found: and that the Center's regulations re- quired that a worker was supposed to be available during worktime. She thereupon terminated Hattie Sherry. Elizabeth Templeton, grandmother of Zearl Wiley, testi- fied that Hattie Sherry picked up Zearl at 7:30 a.m.. re- turned about 3:30 p.m., and remained until 4:30 p.m. She stayed about an hour and a half during that afternoon and she made telephone calls in an effort to locate her supervis- or. She said she did not see Mrs. Daggett at the house (the Wileys') on that afternoon. Pearl Luvene was hired by Respondent on January 6 or 7, 1975, as a mental health therapist at the Madison post. Her immediate supervisor was Esther Dubey, and thereaf- ter, Etheria Brown. Luvene signed a union authorization card on July 14, 1975. and she identified the signature of Artricia James on another union card. Luvene testified that she attended an intake meeting on September 5, 1975, wherein she gave her report on a case and recommended that the problem child therein (an 8-year-old boy) be placed in Mr. Schonberger's therapy group. More specifi- cally, Luvene said that Etheria Brown asked who wanted to take the case and no one responded. Luvene said she then stated that "I am referring him to group therapy"; and Alan Schonberger was the therapist for that age group (8 years of age). Mrs. Brown made no response then, nor at the time she reviewed the case with Luvene on September 8, 1975. On Tuesday, September 9, Mrs. Daggett called her and when she reported to her office the following conversa- tion ensued: I came into Mrs. Daggett's office and she asked me- she said, 'Pearl, I have been told that you refused to lake a case on Friday." I said, "No, Mrs. Daggett. What case?" And she said, "What case did you discuss at the Friday meeting?" I had only discussed one case and I informed her of what case that was. She said, "Did you refuse to take the Case?" And I said, "No, I had not refused to take the case." Mrs. Daggett said, "Are you calling me a liar?" And I said, "No, Mrs. Daggett. You can call Etheria Brown in and she will tell you I didn't refuse to take the case." At which time Mrs. Daggett phoned Mrs. Brown to [to come] into her office. Mrs. Brown came in and I turned to Mrs. Brown to ask Mrs. Brown to explain to Mrs. Daggett what hap- pened. At that time, "Mrs. Brown, did you say that Mrs. Luvene had indeed refused to take a case that had been assigned to her on Friday?" And I said, "Tell her, Mrs. Brown." Mrs. Daggett said, "Are you calling Mrs. Brown a liar? No, I will not have that." Mrs. Brown began to tell what happened at Friday's meeting. When Mrs. Brown had finished her story was basically the same as mine. I said, "See, Mrs. Daggett, Mrs. Brown will tell you I didn't refuse to take it." She said, "You are calling Mrs. Brown a liar. From now on when you are assigned a case you take it." I said, "Okay, Mrs. Daggett." I thought that was the end of it. I didn't refuse to take it. She said, "I don't want to hear it. You are now terminated." I began to cry, and she said, "I don't want to hear it." Mrs. Daggett then gave Luvene a letter of termination (dated September 8, 1975), and Luvene said she was as- tounded because the letter had already been typed up be- fore Mrs. Daggett spoke to her. She then called the date of the letter to the attention of Mrs. Daggett, and requested that it be corrected to September 9. Mrs. Daggett's secre- tary changed the date to September 9. Luvene said she asked Mrs. Daggett why was the letter dated September 8, and Mrs. Daggett said she had typed it on the day before. Luvene said she had never been warned about her work performance. Alan Schonberger essentially corroborated Luvene's testimony that she simply recommended referral of the case to him by saying, "Alan, I think you should take the client." Mrs. Daggett said that, in September 1975, Etheria Brown came to her and advised her that Luvene had worked on an intake case and had refused to take the case, and suggested that Alan Schonberger or someone else take 728 AUSTIN DEVELOPMENTAL ('ENTER, INC it because she could not deal with a religious fanatic (the mother of the child). Mrs. Brown advised her that she thought Luvene was the best person to service the case, especially since she had contact with the family. Mrs. Dag- gett said she then called Luvene into her office and asked her why she was refusing to take the case, and Luvene told her that she felt Alan could handle the case better. Mrs. Daggett said she asked Luvene if that was her judgment to make, and Luvene said that it was not, but she did not feel she could deal with the woman involved. Mrs. Daggett ad- vised Luvene that employees did not refuse to take cases based on the religious beliefs of the client, and that she considered Luvene's action insubordination, in that she was refusing to do what a supervisor was requesting her to do. She thereupon requested Supervisor Etheria Brown to prepare a written memo on the matter. Mrs. Daggett's testimony with respect to the termination of Luvene is essentially consistent with Luvene's testi- monial version, except that Mrs. Daggett contends that l.u- vene refused to take the subject case. Shirley Hill started work with Respondent as a commu- nity leader in September 1972, at its Irving Park facility. She was shown her performance evaluation (G. C. Exh. 141 by her supervisor, Linda Doras, in June or July 1975, which Doras was sending to be typed and placed in her personnel folder, but she never received a copy of it. Hill signed a union card on July 28, 1975. She testified that in September 1975. after Alan Schonberger was fired. Gail Schaetzke. successor of Linda Doras as director of educa- tional programs, said, "The previous director had allowed the employees to do pretty much what they wanted to do. and the employees felt they could take over the program. That was why they felt they could bring a union in." On or about October 10, 1975. Hill said Gail Schaetzke called her and advised that she (Schaetzke) was recom- mending to the director that Hill be terminated. because Hill did not socialize with the other employees and because Hill had a hostile attitude. Hill later went to see Mrs. Dag- gett who gave her a memo which recommended her dis- charge for a hostile attitude and not socializing. Mrs. Dag- gett said, "What do you have to say?" and she said, "What can I say?" Mrs. Daggett said, "You're fired." Hill said she had never been told by Respondent that she was going to be fired, that her attitude was hostile, or that her work was unsatisfactory. She maintained that she did socialize with other employees. Director Daggett testified that, in December 1974, she had occasion to discuss the work performance of Shirley Hill with Supervisor Linda Doras. Doras said Hill was a good worker but limited in ability to deal with acting-out time; that she felt Hill should work with a stronger teacher as an aide in the classroom: and that the work appeared to be boring to Shirley Hill, but that she was nevertheless a good worker. Mrs. Daggett said she agreed with L.inda D)o- ras' assessment of Shirley Hill's work performance. In late July 1975, Gail Schaetzke. who replaced Linda [)oras, came to Mrs. Daggett's office and the following conversa- tion ensued: Gail said to me that she was experiencing some hos- tility from Shirley. She didn't know what it stemmed from, her being a new director enforcing some new guidelines, or new regulations, or what have you. or whether it was the fact that Shirley was dissatisfied with her position since she was then at that point the only one left on the old staff. I then related to Gail the conversation I had had with Linda, and I think our decision at that point was that Gail was going to work with her and see if she felt she could fit into the pro- gram as it was now being structured. Thereafter. Mrs. Daggett said Schaetzke sent her a memo dated September 25, 1975 (Resp. Exh. 3) which de- scribed Hill as having a hostile attitude towards Schaetzke and all new staff, as well as a negative attitude towards all new directives issued to the staff. It further described Shir- ley Hill as giving minimal input and cooperation in car- rving out the work and objectives of the Center and recom- mended that Shirley Hill be terminated. Mrs. Daggett said she did not remember the substance of her conversation with Hill after she terminated her, and was therefore un- able to agree or disagree with Hill's testimonial version. Linda Doras said that during her last days, June 1975 to August 15, 1975, she submitted the evaluation of Shirley Ilill (G. C. Exh. 14) to Mrs. Daggett. She said she did not criticize the performance of Hill, but rather told Mrs. Dag- gett that Hill was becoming more verbal and was a very mature and competent employee. In short, she said she did not recommend Hill's termination.) (iail Schaetzke testified that Hill said very little at staff meetings or to new staff persons. and her responses were minimal. She questioned new directives and was not help- ful to Schaetzke as a new staff member. When she asked Hill about the paperwork dynamics and procedures. Hill referred her to Mr. Vancil. She said, in her opinion. Shirley Hill was inadequate in her classroom performance. With respect to Hill. Schaetzke also said the responsibil- it\ of the community worker was to assist the teacher in academnic and other activities. Hill did not comply with new policies or regulations instituted by Schaetzke. Shirle, Hill testified that she never had a complaint from parents or children and she stated that she had a good working relationship with the children (see G. C. Exhs. 14 and 14 (b) . H',nri' Katz was hired by Respondent on April 1, 1975, as a psychologist. Hie said that, in August. Mrs. Daggett called him into her office and asked him how he felt about supervising others because she felt he did very well. Hle was assigned as a consultant to -lowe Public School, upon his request, to report to the school once a week at 9 a.m., as a consultant to the teachers. Shortly thereafter. Mrs. Petak, principal of Howe School, asked Katz could he come to the school at 8:3(} a.m. (a half hour earlier), and he said he preferred to keep his reporting hour at 9 o'clock: and he explained his reasons to her and she agreed with him. Two days later. on October 9. 1975, Mrs. Daggett called Katz and told him she received a call from Mrs. Petak who ac- cused Katz of showing insensitivity to the communits needs b' not reporting to the Howe School at 8:30. Mrs. 'I oherwd HIll t] bI'- '1 t-sp ken "'-lc hal '1h .1I'ld [.qp.rel) io talkatltl cpFr',oll 729 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Daggett said she asked Mrs. Petak to put her complaint in writing. She advised Katz to check out with his supervisor from then on, and she felt sure he was quite willing to report to the school at 8:30 a.m. Henry Katz said he was called at one of his client's home by Mrs. Daggett on October 10. and was advised that she wanted to see him by appointment. On Monday, October 13, Mrs. Daggett showed him a letter (G. C. Exh. 17) she received from Mrs. Petak. Mrs. Daggett told him that, as a result of the situation, he was terminated. He asked for 2 weeks' notice to close his services with his clients and she agreed. Katz said he had not received any prior warnings or complaints about his work performance. He also stated that he conducted the group therapy sessions for boys from ages 12 to 14 years old, with the assistance of therapist Victor Calimee. With respect to the discharge of Henry Katz, Mrs. Dag- gett said that, after she received the letter from Mrs. Petak complaining about Katz' failure to come to the school at 8:30 instead of 9 o'clock, she terminated Mr. Katz because she did not feel that Mr. Katz could not report to the school at 8:30. In other words, she said she had observed him eating rolls and drinking coffee at the Center at 8:30, and there was no reason why he could not have reported to Howe School at 8:30. She admitted she did not instruct Katz to go to Howe School at 8:30, since he said he preferred not to go until 9 o'clock. She also admitted that, when she called Katz into her office and advised him of Mrs. Petak's letter, Katz said the letter was not necessary, there was no problem. However, she said she nevertheless gave Katz no- tice that he would be terminated within 2 weeks. Mrs. Daggett further testified that, in the spring or sum- mer of 1975, Ms. Dubey came to her office and com- plained about Katz having body odor: that several staff members had made the same complaint and Ms. Dubev was requested to have Alan Schonberger speak to Katz about his body odor; and that Ms. Dubey reported to her that Schonberger had spoken with Katz, and there were no further complaints about the matter. Glenn Jones was hired by Respondent as a teacher and was involved in the employees' organizing activities. On August 28, 1975. Jones said he received a call from Mrs. Daggett at home, where he was on sick leave, and was advised that she had to terminate his employment because he did not have a degree in special education; and that Friday. the next day of that week, would be his last day of work. Jones said he has a bachelor's degree in psychology with a minor in education. When he spoke with Mrs. Dag- gett on Friday., he said she told him that "If he did not like the way things were going there he should have resigned: that she can respect people like that: and that when you try to change things from inside her program, that just can't go, because it was her program." A very favorable performance evaluation on Glenn Jones, dated June 3, 1975 (G. C. Exh. 21), was admitted into evidence. The bottom of the evaluation indicates that it was reviewed, accepted, and signed by Mrs. Daggett. Jones said he never told Mrs. Daggett or anyone that he did not like the Center or its program. or how it was being directed. Respondent's Exhibits 9 and 10 (letters) indicate that employee Diane Freightman had applied, and was being evaluated, for certification in special education, and so was employee Alana Barnes. The applications for employment of Gail Schaetzke and Leslie Freightman do not indicate that either were certified in special education, although Mrs. Daggett claimed she considered such certification when she hired them. Mrs. Daggett further testified that a teacher was to either be certified or given an opportunity to obtain certification. She admitted that she did not give Glenn Jones such an opportunity. Cooper left the Center August 31, 1975, and the Center has not had a special education teacher since he left. The other special education teacher the Center had was Bob Vancil, but Mrs. Daggett said she terminated Glenn Jones because Bob Vancil has a better rapport with the children and he seemed to enjoy his position. I deem the latter state- ment an implication that Jones did not enjoy his position. Lois Cross was employed by the Respondent on July 1, 1974. as a cook at the Irving Park post. She worked under the supervision of Linda Doras. Her primary responsibili- ties were to prepare and cook food for the children, and to purchase the food once a week, on credit, for Respondent, with the assistance of Linda Doras. The receipts for the purchase of food were submitted to the Madison office (to Jacqueline Buckner) by either her or Linda Doras. Cross said she had a private book in which she kept a personal accounting of expenditures for food. Cross further testified that she went on vacation August 16, 1975. for 2 weeks, and was not due back until the Tues- day after Labor Day, September 2, 1975. She said that, on or about August 27, she received a telephone call from Mrs. Daggett, and the substance of their conversation was as follows: She asked me could I come over and go over my records with her, and I told her that I was in town only to change clothes, that I was leaving again that af- ternoon, and she asked me, she told me that you mean to tell me that your vacation means more than your job to you, and I told her that I was home with my husband and I had to do what he tells me to do, and that was all that was said. About 10:30 p.m., on Labor Day, September 2, accord- ing to Cross, she received a telephone call from Mrs. Dag- gett requesting her to report to the Madison Avenue post the next morning. When she reported to Mrs. Daggett on the next morning, she was advised that she was fired be- cause she did not come in during her vacation time to go over her bookkeeping records, and because Mrs. Daggett said her personal record book was sloppily kept, and she (Mrs. Daggett) could not understand it. Although Mrs. Daggett had examined Cross' record book before, she had never said that it was sloppily kept or that she could not understand it, but simply said she was going to purchase another book since Cross had purchased the book she was using. Cross said Linda Doras had not spoken to her about the book not being satisfactorily kept, because the book was Cross' personal book. Linda Doras worked at the Center from September 1974 to September 1975, and she was the supervisor of Lois Cross. Director Daggett testified that on several occasions 730 AUSTIN DEVELOPMENTAL CENI'ER, INC. she had received complaints about the kitchen not being cleaned. The first complaint she received in December 1974. the second in April 1975, and the third in May 1975. She further stated that she had spoken to Lois Cross about her dissatisfaction with the cleanliness of the kitchen, and that on several occasions she had recommended the dis- charge of Cross. Doras said she did criticize Lois Cross' recordkeeping in November or December 1974 but. there- after, neither she nor Mrs. Daggett had any further com- plaints about Cross' bookkeeping performance. Mrs. Daggett said that. during the latter part of August, she called Lois Cross and told her that she had seen the kitchen and she did not like what she saw, and that Cross said she had done the best she could do. Mrs. Daggett said she then told Cross that she had been going over the books and requested that Cross report to her office at the Irving facility on Tuesday. the day after Labor Dav. When (ross reported. Mrs. Daggett said the following conversation en- sued: As near as I can recall, I said to Mrs. Cross that I was really tired of telling her and having Linda tell her constantly about the kitchen- that I felt she was not really involved in what she was doing she didn't like it. She gave me the impression that she didn't like it. and I felt she should not be on the job. tler books her records, were not the kind of records I wanted her to keep, and I thought she would do better someplace else. Mrs. Daggett said she thereupon terminated Lois Cross. Employee Joan English also testified that she observed that the kitchen was greasy and had not been cleaned for several days but, after Cross was terminated, she said she also saw spoiled milk in the refrigerator and a greasy stove. Ms. Schaetzke said that on or about September 2., 1975, she saw the kitchen grill caked with grease and food, and so was the floor and the raft in front of the stove. She also observed spoiled food in the refrigerator in general. She said Lois Cross did not keep the kitchen clean. Schaetzke admitted that she had responsibility for the kitchen. She said the refrigerator had a gas leak and it would not contin- ue running, and the temperature would go down to room temperature but this took 3 or 4 months to occur. She said when Mrs. Rogers cleaned the kitchen she had to do it on her own spare time or on overtime. On rebuttal, Lois Cross said that, before she went on vacation, she cleaned out the refrigerator and the stove and that there was no mold or spoiled food. She denied that the stainless steel was covered with grease and stated that she worked at the Center from July 1974 until her last day, August 6, 1975, and was officially terminated on Septem- ber 9, 1975. She said Schaetzke never spoke to her about conditions in the kitchen and that she had frequent prob- lems with malfunction of the refrigerator. Linda Doras said she supervised Lois Cross from July I. 1974, to September 1975: that she inspected the kitchen daily, and she continued to testify as follows: A. I never found the kitchen itself in an unclean manner. We had housekeeping service that was pro- vided by the State. As Lois stated that theN were re- sponsible for the floors. Sometimes the help wasn't too regular. So on occasion I would say, it doesn't look like the housekeeper is going to show up. Lois would agree to pick up the boards and mop down that por- tion, which was not her job responsibility. Since the housekeeper sometimes was away for a few days, I would suggest it and she would always do it. Q. Did you ever find the grill, stove, or the refriger- ator unclean? A. No. Analysis and Conclusions With respect to several alleged violations of Section 8Ia)( ) of the Act. I credit (individually and/or collectively) the testimonial versions of Victor Calimee. Alan Schonber- ger. Pearl Luvene, and Lorraine Rucker, not only because I was persuaded by their demeanor that they were testify- ing truthfully. but also because their versions were consis- tent. mutually corroborative, and in great measure either partially admitted or not denied by Director Daggett. Based upon a composite of the above-credited testi- mony, I conclude and find as follows: ( I) I'hat on August I, 1975, Director Daggett called Vic- tor ('alimee. Alan Schonberger, Pearl Luvene, and Lor- raine Rucker into her office and asked them if they had signed union cards. Later that day Director Daggett specif- ically asked Victor Calimee for the identity of the employ- ees who attended the union meetings and the names of those employees who signed union cards. She then advised Calimee that "No agency has a union. There wasn't going to be a union at Austin." (2) I'hat on August 4. 1975, Director Daggett called Alan Schonberger into her office and, in the presence of secretary Jacqueline Buckner. advised Schonberger that she knew he was the first employee to contact the Union. (3) 1'hat, during the second week in August 1975, Direc- tor Daggett asked Jacqueline Buckner if she had signed a union card and whether she felt she needed the Union to represent her. (4) That on August 7, 1975. Director Daggett called Alan Schonberger into her office and advised him "that if he wanted to do his thing, to do it on his own time." In the context in which "his thing" was used, Director Daggett could only have had reference to Schonberger's union ac- tiv itv. Based on the foregoing evidence, I further conclude and find that such questioning and threatening statements to employees by such a high level supervisor as Director Dag- gett had a coercive and restraining effect on the exercise of employees' protected rights under Section 7 of the Act, in violation of Section 8(a)( ) of the Act. I further find that such coercive interrogation and re- straining statements by Respondent (Director Daggett) clearly established that Respondent had knowledge of the union activities of employees Hattie Sherry, Glenn Jones, ILois ('ross, Pearl Luvene, Alan Schonberger, Shirley Hill. and Henry Katz. 731 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent's Discharge of Employees Although the record shows that there was considerable unrest among the employees at the Center as a result of the new administration of Director Daggett implementing new policies and procedures to a staff of employees she inherit- ed with the assumption of her new function as director, the evidence of record appears to transcend such difficulties in revealing the real cause for the discharge of seven of Respondent's employees. Respondent does not deny that it discharged seven of its employees (Alan Schonberger, Hattie Sherry, Pearl Lu- vene, Henry Katz, Lois Cross, Glenn Jones, and Shirley Hill), but, rather, contends that all seven employees were discharged solely for cause. With respect to the discharge of Alan Schonberger, Respondent contends that he was discharged for his disrespect to Director Daggett and to the Center (presumably his failure to discuss his union involve- ment with Director Daggett and his denial of Earl Clark's version of an altercation he had with Clark on the day before). The record shows that Director Daggett accepted Earl Clark's version of the altercation and precipitously discharged Schonberger without any prior warning thereof. The record also shows that Director Daggett's inquiry about the alterca- tion suggested that she was engaging in a subtle interrogation of Schonberger about references to the Union during the altercation. Moreover, since the credited evidence shows that Director Daggett knew that Schonberger was the principal union organizer, I conclude and find that Director Daggett's discharge of Schonberger was substantially motivated by his union activity; and that her contention that he was discharged for other reasons, vaguely articulated in the record is an obvious pretext to conceal the unlawful motivation (Schonberger's union activities) for his discharge. With respect to Hattie Sherry's discharge, I credit Sherry's testimonial version over that of Director Daggett's because it is corroborated by Elizabeth Templeton (mother of Mrs. Wiley.) However, while I realize the apparent pos- sibility that Mrs. Templeton's support for Hattie Sherry could have been obtained as a result of Sherry's rapport with the child (Zearl Wiley) and his family to cover for a nonvisit of Hattie Sherry, I do not have sufficient evidence to support such a theory. Moreover, even if the record con- tained such evidence I doubt it would have been sufficient to overcome the very probative evidence in the record of Director Daggett's cloak-and-dagger-like hunt for reasons to discharge seven of her employees within approximately 6 weeks after they became engaged in union activity, of which fact Director Daggett had knowledge. The evidence clearly shows that the primary reason for Hattie Sherry's discharge was her union activity and not her unavailability on the afternoon of August 5 or 6, 1975, assuming she was not in fact available. This is true when the precipitousness of Sherry's discharge is considered along with the fact that it has not been shown that she was previously unavailable or that she had even been given a prior warning about her performance, or the infraction of any of the Center's rules. In fact, the contention that she was not available is clearly a vague pretext to conceal Respondent's unlawful discharge of Sherry for her union activity. With respect to the discharge of Pearl Luvene, the evi- dence of record does not show that Luvene refused to ac- cept a case, but, rather, that Mrs. Daggett contends that she so refused. The record clearly shows that Luvene sug- gested referral of the case to Alan Schonberger, or at least I so credit such testimony herein. The evidence is clear, however, that Respondent (Mrs. Daggett) had knowledge of Luvene's involvement in the organizing efforts of the Union. Thus, in the same posture, as Respondent was in search of a reason to discharge the other six dischargees herein, it likewise attempted to predicate Luvene's dis- charge upon an unestablished cause, to camouflage its real reason (Luvene's union involvement) for discharging her. With respect to the discharge of Shirley Hill, I credit the testimony of Gail Schaetzke and Director Daggett to the effect that Hill was not talkative and was to some degree introverted, because I received the distinct impression as Hill testified that she is somewhat shy, self-conscious, and taciturn. However, these are personality traits which are perhaps present in nearly every work setting involving 13 or more persons. At no time did I receive the impression that Hill was hostile, antisocial, or inept, and I discredit testimony to that effect. In observing Shirley Hill and Gail Schaetzke testify, I was persuaded by their demeanor that there was no necessarily mutual affection between them, which could have very well accounted for Schaetzke's poor evaluation of Hill's work performance following the favor- able evaluation of her performance by her former supervis- or, Linda Doras, 3 months prior thereto. Since the record further shows that Director Daggett knew about Schaetzke's personal evaluation of Hill's per- formance as well as Hill's involvement in the Union, I am persuaded, by all of the evidence of record, that Director Daggett seized upon their (Hill's and Schaetzke's) strained personal relationship, accompanied by the poor perfor- mance evaluation given her by Schaetzke, as a pretext to discharge Hill and to conceal Respondent's (Daggett's) well-established unlawful antiunion motivation for Hill's discharge. With respect to the discharge of Henry Katz, Director Daggett said she terminated him because she did not feel he could not report to the Howe School at 8:30 a.m., in- stead of 9 a.m., as Katz had contended. At the same time, Director Daggett admitted that she did not instruct or or- der Katz to report to Howe School at 8:30 a.m., as she could have, since he preferred not to report there until 9 a.m. Hence, it is readily observed that Respondent did not discharge Katz for failure to comply with an order or direc- tive. It is also noted that, while Mrs. Petak's letter (G. C. Exh. 17) requested Katz' replacement at the school because he could not communicate, or would not cooperate, with her (Mrs. Petak), Director Daggett did not testify that Katz was discharged for such reason. In any event, when it is observed that Director Daggett had knowledge of Katz' union involvement on' the date of his discharge (October 13, 1975); that Director Daggett nor any of Katz' supervisors ever directed him to report to the Howe School at 8:30 a.m.; that Katz was precipitously dis- charged on October 13, 1975, without such an ultimatum or without any prior warning of such disciplinary measure; and that, when the circumstances of Katz' discharge are 732 AUSTIN DEVELOPMENTAL CENTER, INC. considered along with the circumstances of the discharge of the six other dischargees herein, the evidence is more than ample to support the conclusion and finding that Katz' discharge was substantially motivated by his union activity, and that his alleged failure to report to the Howe School at 8:30 a.m. was merely a pretext to justify his otherwise unlawful discharge. With respect to the discharge of Glenn Jones, on August 29, 1975. the evidence of record, which I credit, shows that, while having knowledge of Jones' union involvement on August 29, 1975, Director Daggett called Jones at home and advised him that he was terminated because he did not have a degree or certification in special education. In con- versing with Jones on the day of his discharge, Director Daggett's statements to Jones were: If he did not like the way things were going there he should have resigned; that she can respect people like that; that when you try to change things from inside her program, that just can't go, because it was her program. Such statements by Director Daggett could have had reference only to Glenn Jones' union involvement, since the evidence does not show that Jones was involved in any other incident adverse to Direc- tor Daggett's interest. The above conclusion is further supported when it is not- ed that Jones' performance evaluation, accepted and signed by Director Daggett not quite 3 months prior there- to, was very favorable; that the employment applications of Gail Schaetzke and Diane Freightman, recently em- ployed by Respondent, do not indicate that either was cer- tified in special education; that, assuming that the regula- tions required that a teacher be either certified or given an opportunity to obtain certification, Director Daggett ad- mitted that she did not give Jones an opportunity to obtain certification; and that, when the circumstances of Jones' discharge are considered along with the circumstances of the discharges of six other union involved dischargees herein, it becomes obvious, and I find, that Jones' dis- charge was substantially, if not wholly, motivated by his union activity. Respondent's contention that Jones was dis- charged for cause is not established by the evidence, since Respondent clearly does not require certification of all of its teachers (Schaetzke and Freightman). Hence, Respondent's alleged compliance with required certifica- tion of its teachers is clearly a pretext to justify its unlawful discharge of Jones. With respect to the discharge of Lois Cross, I credit the testimony of Lois Cross and former Supervisor Linda Do- ras over that of Director Daggett and Cross' most recent supervisor, Gail Schaetzke, because, not only was I per- suaded by the demeanor of Cross and Doras that they were testifying truthfully, but also the testimony of Director Daggett and Schaetzke that employees in this proceeding were discharged for cause has been consistently discredited as pretextual in reference to all six other dischargees herein. I find no reason now to credit the testimony of Director Daggett and her newly employed supervisor (Schaetzke) as it relates to the work performance of Lois Cross. This is especially so when it is borne in mind that, on and prior to Cross' discharge, Director Daggett had knowledge of her union involvement; that without any warning Cross was precipitously discharged upon her re- turn from vacation; that Cross' former supervisor since 1974 (Doras) described her work performance very favor- ably: and that, when the circumstances of Cross' discharge are examined with the circumstances of the discharges of the other six dischargees herein, the conclusion is inevita- ble that Cross' discharge was also substantially motivated by her union activity, as were the discharges of the other six dischargees herein. Based on the foregoing evidence and reasons, I conclude and find that Respondent's precipitous and wholesale dis- charge of seven of its employees, within approximately 60 days subsequent to Respondent's acquired knowledge about said employees' union activity, constituted discnmi- nation violative of Section 8(a)(3) and (1) of the Act. Since the undisputed evidence establishes, by Respondent's own admission and otherwise, that on and subsequent to August 1, 1975, Respondent has refused and failed to recognize and bargain collectively with the Union, I further conclude and find that such failure and refusal by Respondent constitutes a violation of Section 8(a)(5) of the Act. Finally, I conclude and find, upon the foregoing evi- dence and reasons, that Respondent's aforedescribed re- straining and threatening interrogation of employees, its oral prohibition against union activity during working hours, its refusal and failure, since August 1, 1975, to bar- gain collectively with the Union, and its other discnmina- tory discharging conduct, having commenced on August 1, 1975, constituted commission of independent, substantial, and pervasive unfair labor practices disruptive of election conditions or processes, which prevented the holding of a free election, and caused the likelihood of the dissipation of the Union's majority status, warranting the issuance of a collective-bargaining order effective as of August 1, 1975. N.L. RB. v. Gissel Packing Co. Inc., 395 U.S. 575 (1969): Steel-Fah. Inc., 212 212 NLRB 363 (1974); and Beasley Energy. Inc., d/b a/ Peaker Run Coal Company. Ohio Divi- sion, 228 NLRB 93 (1977). IV tHE EFFE( F OF THE UNFAIR LABOR PRACTICES UPON COMMENCE The activities of Respondent set forth in section III, above, occurring in connection with the operations of Re- spondent described in section 1, above, have a close, inti- mate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V THE REMEDY Having found that Respondent has engaged in unfair labor practices warranting a remedial order, I shall recom- mend that it cease and desist therefrom, and that it take certain affirmative action to effectuate the policies of the Act. Having found that commencing on August I, 1975, Re- spondent interfered with, restrained, and coerced its em- ployees in the exercise of their Section 7 protected rights, in violation of Section 8(a)(1) of the Act, by coercively inter- 733 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rogating them, ordering them to cease discussing the Union during working hours, advising them that Respon- dent would not be unionized, advising them that they should resign if thev did not like the way things were going at the Center rather than bringing in the Union; by dis- criminatorily discharging 7 of its 13 employees, including the chief union organizer and other participants in the union campaign, for engaging in union activity, in viola- tion of Section 8(a)(3) of the Act; and by failing and refus- ing to recognize and bargain with the Union, subsequent to its receipt of the Union's demand for recognition and bar- gaining, in violation of Section 8(a)(5) of the Act; and that such unlawful conduct by Respondent prevents the car- rying out of a free election and causes the likelihood of dissipating the Union's majority status, the recommended Order will provide that Respondent cease and desist from engaging in such unlawful conduct and that it bargain with General Service Employees Union, Local 73, Service Em- ployees International Union, AFL-CIO, as of August 1, 1975, as the exclusive collective-bargaining representative of its employees. Because of the character of the unfair labor practices herein found, the recommended Order will provide that Respondent cease and desist from in any other manner interfering with, restraining, and coercing its employees in the exercise of their rights guaranteed by Section 7 of the Act. N.L.R.B. v. Entwistle Manufacturing Company. 120 F.2d 532, 536 (C.A. 4, 1941). CONCLUISIONS OF LAW 1. Austin Developmental Center, Inc., the Respondent, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. General Service Employees Union, Local 73, Service Employees International Union, AFL-CIO, is, and has been at all times material herein, a labor organization with- in the meaning of the Act. 3. By coercively interrogating its employees about their union interest or activities, Respondent violated Section 8(a)(1) of the Act. 4. By interrogating its employees about the union inter- est and activities of other employees, Respondent violated Section 8(a)(1) of the Act. 5. By ordering its employees not to discuss the Union during working hours, Respondent violated Section 8(a)(l) of the Act. 6. By advising employees that if they did not like the administration's operation of Respondent, they should re- sign, rather than try to change things by unionizing em- ployees, Respondent violated Section 8(a)(1) of the Act. 7. By giving employees the impression their union activ- ities were under surveillance by Respondent because it overheard their union discussions on the telephone and or- dered them to cease discussing the Union during working hours, Respondent violated Section 8(a)(1) of the Act. 8. By discriminatorily discharging employees Hattie Sherry, Alan Schonberger, Pearl Luvene, Henry Katz, Lois Cross, Glenn Jones, and Shirley Hill, Respondent violated Section 8(a)(3) of the Act. 9. By refusing to recognize and bargain with the Union on August 1, 1975, and thereafter, Respondent violated Section 8(a)(5) of the Act. 10. These unfair labor practices were so independent, substantial, and pervasive that they are disruptive of the election process, precluding a fair election and warranting an order to bargain. II. The aforesaid unfair labor practices affect com- merce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 4 The Respondent, Austin Developmental Center, Inc., Chicago, Illinois, its officers, agents, successors, and as- signs, shall: I. Cease and desist from: (a) Interrogating its employees about their past and cur- rent union interest or affiliation. (b) Interrogating its employees about the union interest and affiliation of other employees. (c) Ordering employees not to discuss the Union during working hours but, rather, on their own time. (d) Advising employees that, if they did not like the administration's operation of Respondent, they should re- sign rather than try to change things by unionizing employ- ees. (e) Giving employees the impression their union activi- ties are under surveillance because their union discussions on the telephone are overheard by Respondent. (f) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights guaran- teed in Section 7 of the Act. 2. Take the following affirmative action necessary to ef- fectuate the policies of the Act: (a) Offer Hattie Sherry, Alan Schonberger, Pearl Lu- vene, Henry Katz, Lois Cross, Glenn Jones, and Shirley Hill reinstatement to their former positions or, if such posi- tions no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights previous- ly enjoyed, and make them whole for any loss of pay suf- fered by reason of the discrimination against them with interest thereon to be computed in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977). 5 (b) Recognize and, upon request, bargain collectively from August 1, 1975, with the General Service Employees Union, Local 73, Service Employees International Union, AFL-CIO, as the exclusive representative of the employees herein found to constitute an appropriate unit for collec- tive bargaining, and, if an understanding is reached, em- body such agreement in a written and signed contract. 4 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. See. generall5. Isis Plumbing & Hearing Co. 138 NLRB 716 (1962). 734 AUSTIN DEVELOPMENTAL (ENTER. INC (c) Post at Respondent's Madison Avenue and Chicago- Read (Irving Park) facilities in Chicago, Illinois, copies of the attached notice marked "Appendix." 6 Copies of said notice, on forms provided by the Regional Director for Region 13, after being duly signed by Respondent's au- thorized representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, including all places where notices to employees are customarily post- ed. Resonable 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 13, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be dismissed insofar as it alleges violations of the Act not found herein. , In the event this Order is enforced bs a Judgment of a Itnited Stale, Court of Appeals. the words in the notice reading "Posted bh Order of the National .ahbor Relations Board" shall read "Posted Pursuant to a Judv- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF MTHE NATIONAL_ LABOR RELATIONS BOARD An Agency of the United States Government WE WIL L NOT discourage membership in General Service Employees Union, Local 73, Service Employ- ees Internation Union, AFL-CIO, or any other labor organization: (a) By coercively interrogating employees about their union interest or activities. (b) By interrogating employees about the union interest and affiliation of other employees. (c) By ordering employees to cease from discuss- ing the Union during working hours. (d) By advising employees if they did not like the administrative operation of the Center they should resign. rather than try to change things by unioniz- ing employees. (e) By giving employees the impression their or- ganizing activities are under surveillance by us. (f) By discriminatorily discharging employees. WE WILL Nor in any other manner interfere with, restrain, or coerce employees in the exercise and en- jo)mnent of rights guaranteed them by Section 7 of the National Labor Relations Act, except to the extent that such rights may be affected by lawful agreements in accord with Section 8(a)(3) of the Act. WE WIl l recall and offer Hattie Sherry, Alan Schon- berger, Pearl Luvene. Henry Katz, Lois Cross, Glenn Jones, and Shirley Hill immediate and full reinstate- ment to their former positions or, if such positions no longer exist, to substantially equivalent ones, without prejudice to the seniority or other rights and previleges enjoyed by them, and WE WIt.L make them whole for any loss of pay they may have suffered by reason of their discharge with interest thereon. WE WiL. recognize and, upon request, bargain col- lectively from August 1, 1975, with General Service Employees Union, Local 73, Service Employees Inter- national Union, AFL-CIO, as the exclusive represen- tative of the employees found herein to constitute an appropriate unit, and, if an understanding is reached, embody such agreement in a written, signed contract. The bargaining unit is: All employees employed by Respondent at its Madison Avenue facility and at its Chicago-Read facility, but excluding guards and supervisors as de- fined in the Act, constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act, as amended. All our employees are free to become, remain, or refuse to become or remain, members of General Service Em- ployees Union, Local 73, Service employees International Union. AFL-CIO. or any other labor organization. At:StrN DEVELOPMENTAI. CENTER. INC 735