House Calls, Inc.

311 304 NLRB No. 44 HOUSE CALLS, INC. 1 The Respondent filed a motion to reopen the record and a request for oral argument. We deny the Respondent’s motion to reopen the record because it does not, as required by Sec. 102.48(d)(1) of the Board’s Rules, ‘‘state briefly the additional evidence sought to be adduced, why it was not presented pre- viously, and that, if adduced and credited, it would require a different result.’’ We deny the Respondent’s request for oral argument because the exceptions and briefs adequately present the positions of the parties. 2 The General Counsel filed a motion to strike the Respondent’s exceptions. Although the Respondent’s exceptions do not fully comply with the Board’s Rules, they are not so deficient as to warrant striking. The General Counsel’s motion to correct the transcript is granted. 3 The Respondent has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an administrative law judge’s credibility resolutions unless the clear preponderance of all the relevant evi- dence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully ex- amined the record and find no basis for reversing the findings. 4 We agree with the judge that the Respondent violated Sec. 8(a)(3) and (1) of the Act by discharging Jacqueline Shatrowskas. We agree that the Respond- ent’s contention that she would have been laid off regardless of her union ac- tivities is without merit, but we do not rely on the judge’s statement that testi- mony concerning earlier discussions about laying off Shatrowskas is meaning- less. 5 In light of our finding that Lelia Corcoran is an agent of the Respondent, we find it unnecessary to pass on the judge’s finding that she is a supervisor. 6 Impact Industries, 285 NLRB 5 fn. 2 (1987), remanded on other grounds 847 F.2d 379 (7th Cir. 1988). House Calls, Inc., House Calls Home Health Agen- cy, Inc., House Calls Home Health Care, Inc., Northeast Diagnostic Services, Inc., and Dura- Med, Inc. and District 1199P, National Union of Hospital and Health Care Employees, AFL– CIO. Cases 4–CA–18105–1, 4–CA–18105–3, 4– CA–18153, 4–CA–18153–3, and 4–CA–18153–4 August 26, 1991 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND OVIATT On September 20, 1990, Administrative Law Judge Thomas A. Ricci issued the attached decision. The Re- spondent filed exceptions and a supporting brief,1 and the General Counsel filed cross-exceptions, a support- ing brief, and an answering brief.2 The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions and briefs, and has decided to affirm the judge’s rulings, findings,3 and conclusions4 as modified, to modify the remedy, and to adopt the recommended Order as modified and set forth in full below. 1. The complaint alleges that Lelia Corcoran was an agent of the Respondent within the meaning of Section 2(13) of the Act. The judge found that she was a su- pervisor, but failed to address specifically the agency allegation. Under Board law, the test for agency is whether, under all the circumstances, an employee would rea- sonably believe that the alleged agent was speaking for management and reflecting company policy. Lovilia Coal Co., 275 NLRB 1358, 1372 (1985). Further, elected or appointed officials of an organization are presumed to be agents of that organization clothed with apparent authority. Nemacolin Country Club, 291 NLRB 456, 458 (1988), enfd. 879 F.2d 858 (3d Cir. 1989). The Respondent is principally owned and managed by John Corcoran, and Lelia Corcoran is his mother. She performs billing and bookkeeping work for the Company, is a member of the board of directors, and has loaned money to the Company on several occa- sions to meet the payroll. The employees were aware of these loans. In addition, her statements to employees were consistent with the Respondent’s antiunion stance, as expressed by its principal officer, John Cor- coran. Under all the circumstances, particularly her po- sition on the board of directors, we find that employ- ees could reasonably conclude that Lelia Corcoran’s statements reflected the views of the Respondent, and that she is an agent under the Act.5 The judge found that the Respondent violated Sec- tion 8(a)(1) by Lelia Corcoran’s interrogating employ- ees and threatening to close the business, and we agree with these findings. The complaint also alleges that she unlawfully solicited complaints and grievances and threatened to discharge employees and cease financial contributions to the business. The judge did not ad- dress these additional allegations. The uncontradicted evidence shows that Lelia Cor- coran stated to employee White that she wanted to know who started the Union and that she wanted them ‘‘out of there.’’ We find this statement was an unlaw- ful threat to discharge the employees who started the Union. Lelia Corcoran also said to White that, if the people were so unhappy, why did they not go to John Cor- coran and say they had a problem. We find that her statement unlawfully implies that the employees’ com- plaints and grievances would have been remedied without the need for a union.6 Lelia also stated that she would not contribute any more money to the business until she discovered which employees were involved with the Union. In light of her repeated rescues of the company payroll, we find this statement constituted a threat of layoff or business closure. 2. The complaint alleges that Anne Marie Gernhart was an agent of the Respondent and that she unlaw- fully engaged in direct dealing with employees by so- liciting them to enter into individual employment con- tracts with attendant unilateral changes in wages and benefits. The judge found that her conduct resulted in unilateral changes, but failed to find that Gernhart was the Respondent’s agent or that her conduct constituted unlawful direct dealing. 312 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 7 Programming & Systems, 275 NLRB 1147 (1985); Lyman Steel Co., 249 NLRB 296 (1980). 8 All dates are in 1989. 9 Jones Plumbing Co., 277 NLRB 437, 441 (1985). The record establishes that, John Corcoran instructed Gernhart, an office manager and secretary for the Re- spondent, to solicit the hourly paid employees to sign individual employment contracts to do the same work on a fee-per-visit basis with no benefits. Gernhart testi- fied that Corcoran said he wanted to retain contract employees ‘‘so he would not have to have the union.’’ Employee Debbie Brennen testified that Gernhart strongly encouraged her to accept the conversion to an individual employment contract and told her that Cor- coran wanted to get rid of the union supporters and re- build the business with contract workers. The evidence clearly establishes that Corcoran in- structed Gernhart to enter into individual contracts with employees. When a principal of an employer has instructed an individual to deal on its behalf, that indi- vidual has actual authority to carry out such instruc- tions. See Alliance Rubber Co., 286 NLRB 645 (1987). Although the judge’s recommended Order and no- tice cover the direct-dealing allegation, he omitted a finding of direct dealing in his discussion and conclu- sions of law. We find that by bypassing the Union and dealing directly with employees, the Respondent has engaged in direct dealing in violation of Section 8(a)(5) and (1) of the Act. The judge failed to include a provision in his rem- edy concerning the unlawful individual contracts. We shall amend the remedy accordingly. 3. The complaint alleges that the Respondent vio- lated Section 8(a)(3) and (1) of the Act by failing to pay the employees for the Memorial Day holiday. The judge failed to address this allegation. The uncontradicted evidence shows that Fiscal Su- pervisor Irene Whitlock, who was found to be a super- visor by the judge, told an employee that she and Lelia Corcoran had been prepared to pay employees for the Memorial Day holiday, but, because the Union came in, they would not do so. It is well settled that an em- ployer’s denial of holiday pay because of employee union activity violates Section 8(a)(3) and (1) of the Act7 Thus, we find in these circumstances that the Re- spondent has admitted that its failure to pay holiday pay was motivated by the Union’s organizing cam- paign and, therefore, violated Section 8(a)(3) and (1) of the Act. 4. The complaint alleges that John Corcoran had un- lawfully threatened employees with unspecified repris- als because they registered complaints against the Re- spondent with the United States Department of Labor. The judge found that on June 12, 1989,8 during Cor- coran’s discussion with the Labor Department inves- tigator, Corcoran was advised that he was behind in his overtime and wage payments. In employee Vukovich’s presence, Corcoran became angry and stat- ed that, if the employees ‘‘screwed him,’’ he would ‘‘screw them.’’ The judge found this statement was not a violation of the Act because it was ‘‘natural’’ for an owner ‘‘to feel concerned’’ when ‘‘the government ex- amines his books’’ and because the General Counsel had not adduced any evidence concerning how the in- vestigation came about or who initiated it. Contrary to the judge, we find that Corcoran’s state- ment constituted an unlawful threat of reprisal. Regard- less of who, in fact, initiated the Labor Department in- vestigation or how it came about, it is clear that Cor- coran believed that the employees were responsible for it. Further, it is well established that the Act ‘‘protects employees . . . when they seek to improve working conditions through resort to administrative . . . forums . . . .’’ Eastex, Inc. v. NLRB, 437 U.S. 556, 565–566 (1978). Therefore, Corcoran’s threat to retaliate against employees for their perceived protected concerted ac- tivity violated Section 8(a)(1) of the Act.9 5. The judge found no merit in the complaint allega- tion that Corcoran violated Section 8(a)(3) and (1) by instituting a policy which prohibited employees from making or receiving telephone calls while at work. He found that the Respondent was motivated by lawful cost-saving considerations in instituting this policy. On June 12, after the meeting with the Labor De- partment investigator, Corcoran instructed Vukovich to type a memorandum stating, ‘‘There will be no per- sonal phone calls in or out of the office.’’ It was signed by Corcoran and posted on the bulletin board. Employee Jean Parry testified that at a meeting with employees, Corcoran informed them that the reason for the change was ‘‘because of the lies that were told to the Labor Department with respect to people not get- ting their lunches.’’ Corcoran’s affidavit stated that he had planned the change since October 1988, yet he failed to make the change for 8 months, until he be- came angry at the employees because of their con- certed and union activities. Indeed, in that same affida- vit Corcoran also stated that he ‘‘implemented some of the new policies at that time because the Labor Depart- ment violation was the straw that broke the camel’s back,’’ thus tacitly admitting that the change in the telephone policy was of recent vintage. Contrary to the judge, we find that the change was discriminatorily motivated. Corcoran’s own affidavit establishes that the timing of the change was not a co- incidence. Following so closely on the heels of Cor- coran’s threat to ‘‘screw’’ employees, it was clearly a response to the perceived group complaints to the Labor Department, as well as the ongoing union orga- nizational campaign. Accordingly, we conclude that the Respondent violated Section 8(a)(3) and (1) by in- 313 HOUSE CALLS, INC. 10 Southern Illinois Petrol, 277 NLRB 160, 164, 170 (1985). stituting a policy that employees could no longer make or receive personal phone calls while at work. 6. The complaint alleges that John Corcoran unlaw- fully interrogated Deborah Vukovich about her union activity. The judge failed to make any factual or legal findings concerning this allegation. Vukovich testified, without contradiction, that on June 12, Corcoran accused her of reporting to the un- employment office that Corcoran’s wife was collecting unemployment while being paid ‘‘under the table’’ by House Calls and told her that some employees had said that she started the Union. When Vukovich asked who said she had started the Union, Corcoran said, ‘‘Why, are you telling me you did start the Union?’’ When Vukovich denied it, Corcoran pointed out that she was the Union’s primary witness at the NLRB joint con- ference. We find that Corcoran coercively interrogated Vukovich about her union activities in violation of Section 8(a)(1). The conversation was particularly co- ercive because it was with the top company official, there was no legitimate reason for Corcoran’s probing into Vukovich’s union sympathies, and the interroga- tion occurred in the context of other unfair labor prac- tices, most committed by Corcoran himself. 7. The complaint alleges John Corcoran unlawfully promised employees improved terms and conditions of employment and threatened to cut the wages of nonunit employees. The judge made no finding con- cerning these allegations. On June 14, nonunit employees Vukovich and Stefanski asked Corcoran if they could change their lunch hours. He replied that he could change the lunch hours, but it depended on the Union, that ‘‘if the Union did not get in, the policies that he made would go.’’ Corcoran also said that, if the Union got in, the salaries of Vukovich, Stefanski, Ludden, and Coley would be cut, but that the salaries of Whitlock, his mother, and himself would remain the same. We find that Corcoran’s statement that he would re- tract some of his oppressive personnel policies if the Union were rejected constituted an unlawful promise of benefits in violation of Section 8(a)(1) of the Act. We further find that the Respondent violated Section 8(a)(1) by threatening to cut the wages of nonunit em- ployees if the Union prevailed in an apparent attempt to influence them to persuade unit employees to reject the Union. 8. The complaint alleges that John Corcoran violated Section 8(a)(1) by telling employees who complained about a delay in receiving their paychecks that they could quit if they did not like it. The judge did not analyze the legal effect of Corcoran’s statement but said only that ‘‘I make no finding of illegality in Cor- coran’s reaction to the concerted unhappiness of em- ployees because of this mechanical breakdown.’’ The General Counsel excepts to the judge’s refusal to find a violation. The uncontradicted testimony reveals that on Friday, June 23, when the employees requested their pay- checks, they were told by Whitlock and John Corcoran that they could not be paid that day because of com- puter problems. On Monday, June 26, the paychecks still were not ready and the employees complained loudly. Corcoran responded that he still could not get into the computer, and if they did not like it, they could quit. We find that the employees were engaged in con- certed protest over working conditions and that Cor- coran’s statement to them suggests that the Respondent did not look favorably on group complaints and did not want employees who engaged in such protected concerted activities to work there. Thus, contrary to the judge, we find that his remarks were coercive and con- stituted a violation of Section 8(a)(1) of the Act. 9. The complaint alleges that, in a conversation with employee Florence Storz, John Corcoran committed several violations of Section 8(a)(1). The judge found that Corcoran unlawfully interrogated her about her union activities, but failed to discuss or make any con- clusions concerning whether Corcoran violated the Act by telling Storz that employees were ingrates who were hitting him when he was down, that he did not have to sign a contract, that, before he would do so, he would ‘‘put a key in the door,’’ and that he would not seek a line of credit for the business as he had planned because of the Union. Storz’ testimony is uncontradicted that Corcoran made these statements to her. We find that, by stating that the employees were ingrates who were hitting him when he was down, Corcoran equated union activity with disloyalty to the Respondent, and we find that this conduct violated Section 8(a)(1).10 We also find that Corcoran’s statement that he would put the key in the door before he would sign a contract constituted an unlawful threat to close the business, and that his state- ment that he would no longer seek a line of credit con- stituted an unlawful threat to reduce business or to close. 10. The complaint alleges that the Respondent vio- lated Section 8(a)(1) of the Act by threatening to refuse to bargain in good faith if the employees se- lected the Union. The judge did not discuss this allega- tion, and the General Counsel excepts to his failure to find a violation. The record reveals that on June 13, John Corcoran conducted a meeting of the unit employees at which Corcoran stated that, if the Union came in, the employ- ees could work for minimum wage and he would not pay mileage, and ‘‘if we thought it was bad working there then, it would be twice as bad’’ after the elec- 314 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tion. The judge found, as alleged, that this statement constituted an unlawful threat to impose more onerous working conditions, but did not discuss the General Counsel’s further contention that it was an unlawful threat to refuse to bargain in good faith. We agree with the judge that the statement con- stitutes a threat to impose more onerous working con- ditions. Contrary to the General Counsel’s contention, however, we find the evidence does not support a find- ing that the Respondent, by this statement, threatened to refuse to bargain in good faith. Therefore, this alle- gation of the complaint is dismissed. AMENDED CONCLUSIONS OF LAW 1. By dealing directly with unit employees and uni- laterally changing their benefits and the compensation system from hourly to piecework rate, and by dis- continuing health insurance benefits, without prior con- sultation with the Union, the Respondent has violated Section 8(a)(5) and (1) of the Act. 2. By discharging Jacqueline Shatrowskas, by insti- tuting a policy that employees could no longer make or receive personal telephone calls, and by failing to pay the employees for the Memorial Day holiday, the Respondent has violated Section 8(a)(3) and (1) of the Act. 3. By soliciting employee grievances and com- plaints, by threatening employees with discharge, by threatening to cease financial contributions to the busi- ness, by telling employees that the Respondent would ‘‘screw’’ them because of their complaints to the U.S. Labor Department, by interrogating employees about their union activity, whether they had signed cards, or who the prounion employees were, by promising em- ployees improved terms and conditions of employment for voting against the Union, by threatening to reduce the wages of nonunit employees, by telling employees they could quit in response to their concerted com- plaints about a delay in their paychecks, by threatening to close the business or not to seek financing for the business, by telling an employee that her support for the Union constituted disloyalty, by telling an em- ployee she was discharged because of her union activ- ity, by threatening to reduce wages and unfavorably change other terms and conditions of employment in retaliation for union activities, and by promising to im- prove conditions of employment in return for rejecting the Union, the Respondent has engaged in violations of Section 8(a)(1) of the Act. AMENDED REMEDY Having found that the Respondent has engaged in unfair labor practices in violation of Section 8(a)(1), (3), and (5) of the Act, we shall order that it cease and desist therefrom and take certain affirmative action de- signed to effectuate the purposes of the Act. Because the violations of the Act committed by the Respondent are widespread and of such an egregious nature that they evidence a general disregard for its employees’ statutory rights, we find that a broad injunctive order is warranted. Hickmott Foods, 242 NLRB 1357 (1979). Discriminatee Jacqueline Shatrowskas has declined the Respondent’s offer of reinstatement. We shall, however, order that she be made whole, with interest, for any loss of earnings or benefits she may have suf- fered to that point as a result of the unlawful discrimi- nation against her. Backpay shall be computed in ac- cordance with the formula set forth in F. W. Wool- worth Co., 90 NLRB 289 (1950). We shall order that the Respondent recognize and bargain with District 1199P, National Union of Hos- pital and Health Care Employees, AFL–CIO. The Re- spondent shall reinstate the employees’ health insur- ance coverage and make employees whole for any losses they may have suffered because of its dis- continuance, plus interest. See Kraft Plumbing & Heat- ing, 252 NLRB 891 fn. 2 (1980), enfd. mem. 661 F.2d 940 (9th Cir. 1981). The Respondent shall compensate the employees for the Memorial Day holiday, plus in- terest, and rescind its rule prohibiting personal phone calls. Concerning the unlawfully negotiated individual contracts, the normal remedy for unilateral changes is a make-whole order. However, the Board does not re- quire that employees forgo increases in wages and ben- efits. As it is not clear whether the change in com- pensation from hourly rate to piecework was a det- riment or a benefit to the employees, we shall issue a restoration order conditioned on the affirmative desires of the affected employees as expressed through their bargaining agent. Dura-Vent Corp., 257 NLRB 430 (1981); Kendall College, 228 NLRB 1083 (1977), enfd. 570 F.2d 216 (7th Cir. 1978). If the change to a piecework compensation system resulted in a loss of earnings to affected employees, at the Union’s request the Respondent shall make employees whole, with in- terest, for any losses they may have suffered, based on the difference between what the employees would have earned under their hourly rates and what they earned under the piecework plan. Interest on all sums due herein shall be calculated in accordance with New Horizons for the Retarded, 283 NLRB 1173 (1987). ORDER The National Labor Relations Board orders that the Respondent, House Calls, Inc., House Calls Home Health Agency, Inc., House Calls Home Health Care, Inc., Northeast Diagnostic Services, Inc., and Dura- Med, Inc., Kingston and West Pittston, Pennsylvania, its officers, agents, successors, and assigns, shall 1. Cease and desist from 315 HOUSE CALLS, INC. 11 In the appendix, the judge described the unit to include the employees of the companies other than House Calls, Inc. The election and certification pertained only to House Calls employees. Therefore, we correct the judge’s erroneous expansion of the unit. 12 If this Order is enforced by a judgment of a United States court of ap- peals, the words in the notice reading ‘‘Posted by Order of the National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.’’ (a) Refusing to bargain with District 1199P, Na- tional Union of Hospital and Health Care Employees, AFL–CIO as the exclusive representative of its em- ployees in the following appropriate unit: All registered nurses, occupational therapists, quality assurance nurses, licensed practical nurses, home health aides, and home health aide coordi- nators employed by House Calls, Inc., excluding all office secretaries, plant operation employees, payroll clerks, computer billers, operators, admin- istrative assistants, guards and supervisors as de- fined in the Act.11 (b) Dealing directly with unit employees as to terms and conditions of employment and unilaterally chang- ing their wages and benefits. (c) Discontinuing employee health insurance cov- erage without prior consultation with the Union. (d) Discharging or otherwise discriminating against any employee for supporting a union. (e) Instituting a policy by which employees could no longer make or receive personal phone calls in retalia- tion for their union activity. (f) Failing to pay the employees for holidays be- cause of their union activity. (g) Soliciting employee grievances and complaints with a view toward adjusting them. (h) Threatening employees with discharge because of their union activity. (i) Threatening to cease financial contributions to the business because of employee union activity. (j) Threatening unspecified reprisals because of em- ployee protected concerted activity. (k) Interrogating employees about their union activ- ity, whether they had signed cards, or who started or supported the Union. (l) Promising employees improved terms and condi- tions of employment for voting against the Union. (m) Threatening to reduce the wages of nonunit em- ployees if the Union prevailed in a Board election. (n) Telling employees they could quit in response to their protected concerted activity. (o) Threatening to close the business or not seek fi- nancing. (p) Telling employees that their support for the Union constitutes disloyalty. (q) Telling employees that they are being discharged for union activity. (r) Threatening to reduce wages and unfavorably change other terms and conditions of employment in retaliation for union activities. (s) Promising to improve conditions of employment in return for rejecting the Union. (t) In any other manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) On request, bargain with the Union as the exclu- sive representative of the employees in the appropriate unit concerning terms and conditions of employment and, if an agreement is reached, embody the under- standing in a signed agreement. (b) If the Union so desires, rescind and cease giving effect to the piecework contracts individually nego- tiated with employees. (c) If the Union so desires, make whole the employ- ees subject to piecework contracts for any losses of wages and other benefits they may have suffered in the manner set forth in the remedy section of this Decision and Order. (d) Reinstate the employees’ health insurance cov- erage and make them whole, with interest, for any losses they may have suffered because of its dis- continuance. (e) Make the employees whole, with interest, for any losses they may have suffered because of the failure to pay holiday pay. (f) Make whole Jacqueline Shatrowskas for any loss of earnings and other benefits resulting from her dis- criminatory discharge, in the manner set forth in the remedy section of this Decision and Order. (g) Remove from its files any reference to the un- lawful discharge and notify Shatrowskas in writing that this has been done and that the discharge will not be used against her in any way. (h) Rescind the policy prohibiting personal phone calls. (i) Preserve and, on request, make available to the Board or its agents for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (j) Post at its places of business in Wilkes-Barre, Pennsylvania, copies of the attached notice marked ‘‘Appendix.’’12 Copies of the notice, on forms pro- vided by the Regional Director for Region 4, after being signed by the Respondent’s authorized represent- ative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the no- 316 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tices are not altered, defaced, or covered by any other material. (k) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protec- tion To choose not to engage in any of these pro- tected concerted activities. WE WILL NOT refuse to bargain with District 1199P, National Union of Hospital and Health Care Employ- ees, AFL–CIO as the exclusive representative of the employees in the following appropriate unit: All registered nurses, occupational therapists, quality assurance nurses, licensed practical nurses, home health aides, and home health aide coordi- nators employed by House Calls, Inc., excluding all office secretaries, plant operation employees, payroll clerks, computer billers, operators, admin- istrative assistants, guards and supervisors as de- fined in the Act. WE WILL NOT deal directly with unit employees as to terms and conditions of employment or unilaterally change their wages and benefits. WE WILL NOT discontinue employee health insur- ance coverage without prior consultation with the Union. WE WILL NOT discharge or otherwise discriminate against any employee for supporting a union. WE WILL NOT institute a policy by which employees may no longer make or receive personal phone calls in retaliation for their union activity. WE WILL NOT fail to pay employees for holidays be- cause of their union activity. WE WILL NOT solicit employee grievances and com- plaints with a view toward adjusting them. WE WILL NOT threaten employees with discharge be- cause of their union activity. WE WILL NOT threaten to cease financial contribu- tions to the business because of employee union activ- ity. WE WILL NOT threaten unspecified reprisals because of employee protected concerted activity. WE WILL NOT interrogate employees about their union activity, whether they signed union cards, or who started or supported the Union. WE WILL NOT promise employees improved terms and conditions of employment for voting against the Union. WE WILL NOT threaten to reduce the wages of nonunit employees if the Union prevails in a Board election. WE WILL NOT tell employees they can quit in re- sponse to their protected concerted activity. WE WILL NOT threaten to close the business or fail to seek financing. WE WILL NOT tell employees that their support for the Union constitutes disloyalty. WE WILL NOT tell employees that they are being dis- charged for union activity. WE WILL NOT threaten to reduce wages and unfavor- ably change other terms and conditions of employment in retaliation for union activities. WE WILL NOT promise to improve conditions of em- ployment in return for rejecting the Union. WE WILL NOT in any other manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL, on request, bargain with the Union as the exclusive representative of the employees in the appro- priate unit concerning terms and conditions of employ- ment and, if agreement is reached, embody the under- standing in a signed agreement. WE WILL, if the Union so desires, rescind and cease giving effect to the piecework contracts individually negotiated with employees. WE WILL, if the Union so desires, make whole, with interest, the employees subject to piecework contracts for any losses they may have suffered. WE WILL reinstate the employees’ health insurance coverage and make them whole, with interest, for any losses they may have suffered because we discontinued it. WE WILL make the employees whole, with interest, for any losses they may have suffered because of our failure to pay holiday pay. WE WILL make whole, with interest, Jacqueline Shatrowskas’ for any loss of earnings and other bene- fits resulting from her discriminatory discharge. WE WILL remove from our files any reference to Shatrowskas unlawful discharge and notify her in writ- ing that this has been done and that the discharge will not be used against her in any way. 317 HOUSE CALLS, INC. WE WILL rescind our policy prohibiting personal phone calls. HOUSE CALLS, INC., HOUSE CALLS HOME HEALTH AGENCY, INC., HOUSE CALLS HOME HEALTH CARE, INC., NORTHEAST DIAGNOSTIC SERVICES, INC, AND DURA-MED, INC. Robert P. Heller, Esq. and Peter Verrochi, Esq., for the Gen- eral Counsel. Mr. John Corcoran and Irene Whitlock of West Pittston, Pennsylvania, for the Respondent. Mr. Steve Williamson of State College, Pennsylvania, for the Charging Party. DECISION STATEMENT OF THE CASE THOMAS A. RICCI, Adminstrative Law Judge. A hearing in this proceeding was held at Wilkes-Barre, Pennsylvania, on May 22, 23, and 24, 1990, on complaint of the General Counsel against five named companies: House Calls, Inc., House Calls Home Health Agency, Inc., House Calls Home Health Care, Inc., Northeast Diagnostic Services, Inc., and Dura Med, Inc. (a single employer in the complaint). The complaint issue on February 28, 1990, on charges filed by District 1199P, National Union of Hospital and Health Care Employers, AFL–CIO, on various dates between May 30 and August 14, 1989. Thereafter the Respondent filed an answer in which it contradicted the essential allegations of wrong- doing. Briefs were filed after the close of the hearing by the General Counsel and the Respondent. On the entire record, and from my observation of the wit- nesses, I make the following FINDING OF FACTS I. THE BUSINESS OF THE RESPONDENT House Calls, Inc. and the other four companies named in the complaint are engaged in the provision of health care services including nursing, physical therapy, respiratory ther- apy, speech therapy, and personal care services, with offices at Kingston, and West Pittston, Pennsylvania. The answer ad- mits that the Respondents, meaning all five of the separate companies called a single employer in the complaint, annu- ally receive gross revenue in excess of $500,000. It also ad- mits that the Respondent in the course of its business pur- chases and receives products, goods, and material valued in excess of $10,000 from other enterprises, located within the Commonwealth of Pennsylvania, each of which other enter- prises received the products, goods, and material directly from point outside the Commonwealth of Pennsylvania. I find that the Respondent is an employer within the mean- ing of the statute. II. THE LABOR ORGANIZATION INVOLVED I find that District 1199P, National Union of Hospital and Health Care Employees, AFL–CIO is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES The central person involved in the operation of the Re- spondent in this case is a man named John Corcoran. For several years he has been the direct operational manager of each of the five separate corporations which together con- stitute a single employer. Early in 1989 the Union filed an election petition naming House Calls, Inc. as the Employer. With the Employer’s agreement an election was held on July 7, 1989, which the Union won, and on July 19 the Union was certified by the Board as its exclusive representative. The unit was there described as: Included, all registered nurses, occupational therapists, quality assurance nurses, licensed practical nurses, home health aides, and home health aide coordinators employed by House Calls, Inc., and its Kingston, Penn- sylvania facility. Excluded: All office secretaries, plant operation employees, payroll clerks, computer billers, operators, and administrative assistants, guards and su- pervisors as defined in the Act. As it became clear that Corcoran was running his business under a variety of corporate names, the complaint here to be considered lists four other separate names and called all a single employer or, a single respondent. John Corcoran per- sonally filed an answer to the complaint, in which he denied each of the asserted allegations of wrongdoing and, espe- cially significant, the allegation that the five named corpora- tions constitute a single employer. Another significant allega- tion which Corcoran also denied is that he, the administrator, Irene Whitlock, fiscal director, Kimberly Coley, assistant to the administrator, and Debra Ludden, director of professional services, are supervisors within the meaning of the Act and agents of the Respondent. In preparation for the hearing the General Counsel served on the Respondent subpoenas relating to the ownership of, organizational structure and managerial control of, super- visors and employees of, and business and financial inter- relationship among all five companies. The Respondent re- fused to produce the subpoened documents. Further, Cor- coran refused to answer questions put to him by the General Counsel relating to Health Care Agency, Home Health Care, Northeast and Dura-Med., the four affiliated companies listed in the complaint. Four other representatives of the Respondent also were called to testify by the General Counsel. They refuse to an- swer any questions put to them. These were: Irene Whitlock, Kimberly Coley, Lelia Corcoran, and Art Masteller. They stated as grounds for their refusal to talk: Kimberly Corcoran: ‘‘Because I do not want to incrimi- nate myself in any way or my husband in any way.’’ Lelia Corcoran: I am going to have to say that without my attorney present, I am not going to answer anything else. Q. Well, let me ask you Ms. Corcoran, are you will- ing to answer questions about the business structure of House Calls, Incorporated? A. No, I am not. Q. Are you willing to testify about what you know about the business structure? A. No. 318 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Irene Whitlock: Q. Ms. Whitlock, do you currently hold any position with House Calls, Inc.? A. I prefer not to answer without the presence of an attorney . . . . Q. Okay, will you answer any questions at all? A. Not without my attorney. Arthur Masteller: Q. Mr. Masteller, were you at one time employed by House Calls, Incorporated? A. Sir, I respectfully decline to answer any questions on the advice of my attorney . . . . Q. But is that accurate Mr. Masteller, that you are asserting a Fifth Amendment Right, against incriminat- ing yourself? A. Yes, sir that is correct. Kimberly Coley: Q. Ms. Coley, were you at one time employed by House Calls, Incorporated? A. Mr. Verrochi, on the advice of my counsel, I can- not answer those questions on the grounds that it might incriminate me. When, 2 days later, the General Counsel rested his case, John Corcoran, for the Respondent, called two witnesses— Irene Whitlock and Kimberly Corcoran, his wife. The Gen- eral Counsel objected to the procedure on the grounds that having refused to testify for the General Counsel those wit- nesses should not be permitted to speak for the Respondent in defense. I sustain his objection. On second thought the General Counsel withdrew that objection and stated clearly that the Respondent was free to call any witness he wished. At that point, the Respondent chose not to call any witness at all and rested his defense with no witness testifying. With not a word of the relevant testimony contradicted in this fashion by the Respondent, it follows that the story as detailed by the General Counsel’s witnesses is to be be- lieved. Auto Workers v. NLRB, 459 F.2d 1329 (D.C. Cir. 1972). Suburban Food, 248 NLRB 364 (1980). The documents in evidence show that between 1985 and May 1988 John Corcoran personally incorporated four of the named companies and was the sole owner of their stock. To- gether with two other persons he also incorporated the com- pany called House Calls, of which he owned one-third of its stocks. He also admitted that at one time or another he was the administrator for each of the five companies. The business of each of these companies is generally called providing health care services. What this means is that they send out experienced nurses and other aides to provide nursing, physical therapy, respiratory therapy, and personal tests of all kind as requested by their physicians, hospitals, and all kinds of medical institutions. The employees mostly go to the homes of the sick people to give them the tests and assistance, as well as in hospital locations. Although Corcoran himself refused to answer questions about exactly what kind of work was furnished by these companies, the testimony of employees called by the General Counsel shows clearly all did the same kind of work. As to where these companies had their central locations, Corcoran also refuse to speak of that. The record shows nev- ertheless that all five of them operated out of two locations, one in Kingston and one in West Pittston, both in Pennsyl- vania. Corcoran lives in one of these locations. The employ- ees did work for more than one of the companies at the same time. Mildred Cannon, a registered nurse on the House Calls payroll, worked as assignment for House Calls Care and Home Health Agency, each of whom then sent her earning statements. The same is true of employee Debra Ludden. These employees of House Calls also testified that they went out on assignment from Dura-Med, another of the five com- panies. The billing for services performed in the name of all these companies were recorded and sent out from the office of House Calls. Money was regularly transferred from one com- pany’s account to that of another. All company accounts were handled in a single office. Whenever questions arose about sufficient money being available in one account or an- other, it was always by consulting Corcoran personally that the office girls were told how to transfer cash from one com- pany’s account to that of another. The story goes on and on, with unending details, all uncontradicted, about common supervision, interchange of employees, functional interrelationship, centralize control of labor relations, common ownership, etc. It would be pointless to repeat here all the uncontradicted testimony in support of all these relevant facts, I find that all five of the separately named companies listed in the complaint are a single em- ployer. All Kind Quilting, Inc., 226 NLRB 1186 (1976); Watt Electric Co., 273 NLRB 655 (1984), and Professional Eye Care, 289 NLRB 738 (1988). The Unfair Labor Practices I find that the five persons named supervisors or agents of the Respondent in the complaint are in fact supervisors and agents of the Board law. The Respondent’s answer denies that any of the five are agents of the companies, but, again, no evidence was offered by the Respondent to offset the di- rect testimony of the General Counsel’s witnesses on this en- tire question. That John Corcoran part owner and direct man- ager of each of the five companies, is a supervisor as alleged hardly needs comment. Irene Whitlock is the Respondent’s fiscal director. She ap- peared at the hearing as a representative of the Respondent. There is direct evidence that she personally hired an em- ployee, Mary Stefanski. Although this lady refused to answer any questions put by the General Counsel when called as a witness her prehearing affidavit reads as follows: As Fiscal Director, I had planned to pay employees for Memorial Day . . . I planned to do this without ap- proval from Corcoran. I do certain things like this from time to time. She later changed her mind and did not pay the employees for the Memorial Day holiday. I find that Irene Whitlock is a supervisor within the meaning of the Act. Debra Ludden was the Respondent’s director of nursing and director of professional services from May 1988 to June 1989. She scheduled patients for treatment and had authority over nurses and health care aidesand actually hired an em- 319 HOUSE CALLS, INC. ployee as a health aide. All this testimony also stands uncontradicted. Ludden also had authority over occupational therapists and physical therapists. She solicited candidates for employment and personally hired at least two employees. She transferred an employee from one job to another and dealt with em- ployee complaints as to matters such as personality disputes and travel and patient problems. I find that Debra Ludden was a supervisor within the meaning of the Act during the time of the incidents that gave rise to this proceeding. Kimberly Coley, the assistant administrator, had authority over Ludden. Corcoran’s affidavit said that an employee have to consult with him, Ludden or Coley as to disciplinary or punitive decisions. Coley signed the employment contract with employee Ann Gernhart as the ‘‘House Calls, Inc., rep- resentative’’ as a house health aide. All this testimony also stands uncontradicted, for like the others, Coley too refuse to testify when called to the stand. I find that Kimberly Coley is a supervisor within the meaning of the Act. Lelia Corcoran is John Corcoran’s mother. She performs billing and bookkeeping work. She loaned money to the company a number of times and served as a member of the company’s board of director. Corcoran used to tell the em- ployees that his mother use to put money in to expand it. I find that Lelia Corcoran too is a supervisor within the mean- ing of the Act. 1. On May 19, 1989, Steven Williamson, an organizer for the Union, called at Corcoran’s office and presented him with a letter demanding recognization. Corcoran became very angry, raised his voice, and said the man had no right to de- mand recognition and that ‘‘either he would get the keys and he would take the keys and lock the door.’’ This was within hearing of other employees. To other employees recalled pre- cisely that Corcoran said ‘‘before I recognize the Union I will put a key in the door.’’ I find that by this statement of Corcoran’s the Respondent committed an unfair labor prac- tice in violation of Section 8(a)(1). Armon Co., 279 NLRB 1245 (1986). 2. That same day, shortly after his talk with Williamson, Corcoran told his assistant’s to discharge two employees— Jacqueline Shatrowskas and Jennine Edwards. As Ludden, the director of professional services, testified, Kimberly Cor- coran, the assistant administrator and supervisor, told her that Corcoran was very upset and ‘‘he wanted to layoff some people and he said that he felt that Jacqueline Shatrowskas and Jennine Edwards started the Union . . . .’’ A little later that day Ludden told both these employees that they were being laid off at the end of the day. To Edwards she said, that Corcoran thinks Edward and Shatrowskas started the Union.’’ As Edwards recalled it Ludden told her ‘‘John wanted her fired and he thought she was the ring leader.’’ Later in the day Edwards was told that she could remain on the job after Corcoran had talked to his lawyer. Shatrowskas lost her job that day. Not only had Shatrowskas never been told of any possibil- ity of discharge, but Ludden, who was over her in charge, testified clearly that Shatrowskas’ work was ‘‘good to excel- lent.’’ More, the Respondent’s termination policy states: ‘‘conditions may arise which necessitate the dismissal of an employee or a decrease in working force. Permanent fulltime employees shall be given (2) weeks notice upon termination. Permanent fulltime employees shall be required to give (2) weeks notice of resignation.’’ Considering the foregoing clear evidence of illegal intent, the timing, and the fact Shatrowskas had never been told anything before that day about possibility dismissal, I find the discharge of Shatrowskas was an unfair labor practice in violation of Section 8(a)(3) of the Act. The testimony by an- other company witness that there had been talk about dis- charging Shatrowskas back in January of that year is mean- ingless. I also find, as alleged in the complaint, that the statement by a supervisor to Edwards, that she was to be laid off be- cause of the union activity that was going on, although the lady was not in fact dismissed, was in itself a violation of Section 8(a)(1) of the Act. 3. Again, that same day, Lelia Corcoran, John’s mother, said to employee Cecilia White she wanted to know who had initiated the Union and that she wanted them out of the place. If they were unhappy here, she asked, why did they not seek work elsewhere instead of starting ‘‘trouble.’’ White’s testimony was corroborated by employee Vukovich. Also, Lelia Corcoran affidavit received in evidence, reads as follows: What the hell is this about the Union, why would they inflict this on John in addition to all the other troubles, don’t they know about all our medicare restrictions, I also said, who every it is who started it why don’t they go some place else were there is a union? I said if peo- ple went on strike for a raise, how could we reconcile what were asking for with what medicare allows us. I said why didn’t they go to John first and say they had a problem if they weren’t satisfied? I said I would like to know who the hell started it, I said I didn’t care if the company had to get rid of every one and close down, I said if they didn’t like the conditions, why didn’t they just leave instead of starting this. I said I wouldn’t put anymore money in the company until I found out who started the Union. Such illegal interrogations and threats to reduce the busi- ness in retaliation for union activity really were repeated vio- lations of Section 8(a)(1) of the Act, and I so find. 4. There is like testimony by employee Florence Storz. She said, again without contradiction, that Corcoran asked her if she knew anything about the Union, if she had signed a union card, and if she knew who had started the union movement. This testimony too was corroborated by employee Vukovich. It was another pure violation of the statue, interro- gation pure and simple with no assurance against reprisal. Raytheon Co., 279 NLRB 254 (1986). 5. There is also evidence of other things the company did, some of them affecting conditions of employment, which the General Counsel contends prove further unfair labor prac- tices. I do not think any of those warrant further findings of illegal conduct here. The Respondent was having financial difficulties at the time of the event. One day it told the employees that they were no longer permitted to make or receive personal tele- phone calls in the company’s office. One day it moved one of two refrigerators from the facility’s kitchen to the nearby office of a supervisor. The refrigerators were used by the 320 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD employees to keep their lunches cool. After the move, the employees were still able to use the second refrigerator when the supervisor was out of the room. The employees in the past took so much time off for lunch each day. No record was kept as to how much time they took. With Government investigators checking on the compa- ny’s proper or improper compliance with Labor Department Rules about overtime and wage violation, the company told the employees that henceforth an accurate record must be made of the precise times they took off for lunch while at work. When the Labor Department informed Corcoran that he was behind in his overtime and wage payments, he be- came angry and said if the employees ‘‘screwed him,’’ he would ‘‘screw them.’’ During the hearing the General Counsel conceded that the change in the lunch hour recording rule was not an unfair labor practice by the Respondent. I reach the same conclu- sion as to the other details. To reduce the cost of its tele- phone bills at a time of financial stress is a perfectly under- standable thing to do. The slight moving of a single refrig- erator—in which blood samples of the patients are kept—did not really inconvenience the employees. And for the owner to feel concerned when the Government examines his books was equally natural, to say nothing of the fact their is no evi- dence of how that investigation came about, or who pro- voked it. The General Counsel’s speculation cannot take the place of affirmative evidence. 6. At a meeting of the aides, which took place shortly be- fore the July 7 election, Corcoran spoke of how he would react to the election results. He said if the Union were voted in he would reduce the wages to the minimum wage level and remove all fringe benefits, and that however bad things were then they would be worse. He also said other condi- tions—such as paid holidays off, would be improved if the Union were rejected. His statements—clear threats to impose harsher conditions if the employees persisted in their prounion activity resolve, and a promise to improve their conditions if they voted against the Union—were both pure violations of Section 8(a)(1) of the Act. I so find. Stop N’ Go, Inc., 279 NLRB 344 (1986). On or about June 26, there was a delay of several days in paying the employees their scheduled wages because the company’s computer, which kept the records, had broken down. Some employees protested the delay, but all were paid as soon as the mechanical failure was remedied. I make no finding of illegality in Corcoran’s reaction to the concerted unhappiness of employees because of this mechanical break- down. 8. When, after the Board’s election of July 7, 1989, the Union was established as an exclusive representative of the employees on July 19, 1989, the Respondent, of course, be- came legally obligated to bargain with the Union. Aside from its deliberate violations of the statue in the repeated attempts to prevent a fair election, Corcoran, acting for all five of the named Respondent companies, ignored the Union and went about his business as though the Union did not exist. His fur- ther violations of the statue, clear unfair labor practices under Section 8(a)(5) of the Act, are equal]y clear. When it suited his purpose he changed the hiring arrangement with a num- ber of nurses aides from hourly pay to piecework rate. On occasion, some employees refused to accept the change; oth- ers did as they were told and worked under new pay rules set down by Corcoran. As far as he was concerned the Union did not exist. That such unilateral changes in conditions of employment, although ignoring the statutory duty to bargain with the employees chosen representative, was an unfair labor practice hardly needs precedent citation. See only NLRB v. Katz, 369 U.S. 736 (1962). I find that by changing the pay arrangement with its em- ployees without first discussing the subject and bargaining about it with the Union, the Respondent in fact refused to bargain with the Union and thereby violated Section 8(a)(5) of the Act. 9. Another direct violation of Section 8(a)(5) was the Re- spondent’s discontinuance, 2 days after the Union’s certifi- cation, of health insurance benefits the employees had long enjoyed. On July 31, 1989, Corcoran posted a notice that henceforth the Blue Cross-Blue Shield Group Insurance was being completely discontinued, and that if the employees so desired, they could pay for it themselves. At the hearing Corcoran seemed to argue, in defense, that his reason for doing that was only that he could not afford the expense. It was an insufficient defense. Corcoran never talked of the subject with the Union. That it was a substantial change in conditions of employment hardly needs comment. If any- thing, this discontinuance of benefit appears instead as a di- rect implementation of Corcoran’s clear threats to the em- ployees, that if they voted in favor of the Union their condi- tions of employment would be worsen. I find that by unilat- erally discontinuing the health insurance benefits without first discussing this subject with the Union the Respondent violated Section 8(a)(5) of the Act. III. THE REMEDY The Respondent must be ordered to cease and desist from again committing any of the many unfair labor practices found above. It must also be ordered to make whole Jac- queline Shatrowskas for any loss of earnings she suffered be- cause of her illegal discharge. In September 1989 this lady was offered reinstatement by the Employer, but she refused to accept it. Therefore there is no occasion to order reinstate- ment now. The Respondent must also be ordered to bargain with the Union henceforth as statue commands. It must make whole any of the employees who may have suffered monetary dam- ages because of the unlawful discontinuance of their health insurance previously supplied by the employer. Equally, the company must restore and reestablish the health insurance for its employees. Finally, the Respondent must be ordered henceforth to bargain with the Union on request in good faith. The unfair labor practices found in this record are so ex- tensive and pervasive that the final order must also include a directive that the Respondent cease and desist from any other manner henceforth violating the statue. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operation of its regu- lar business, have a close, intimate, and substantial relation- ship to trade traffic, and commerce among the several States 321 HOUSE CALLS, INC. and tend to lead to labor disputes obstructing commerce and free flow of commerce. CONCLUSIONS OF LAW 1. By unilaterally changing the compensation system with its employees from hourly to piecework rate, and by dis- continuing the established health insurance benefits they long enjoyed, both without prior consultation with their union rep- resentative, the Respondent has violated and is violating Sec- tion 8(a)(5) of the Act. 2. By discharging Jacqueline Shatrowakas, the Respondent has violated and is violating Section 8(a)(3) of the statue. 3. By foregoing conduct, by telling employees the Re- spondent will close down its business if the employees per- sist in their prounion activity, by telling an employees she was being discharged because of her union activity, by ques- tioning employees as to who started the Union activity and who backed it, by questioning employees as to whether they had signed union cards and as to who the prounion employ- ees were, by threatening to reduce wages and other condi- tions of employment in retaliation for prounion activities, and by promising to improve conditions of employment in return for antiunion activity, the Respondent has engaged in and is engaging in violations of Section 8(a)(1) of the statue. 4. The aforesaid unfair labor practices are unfair labor practice within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.]