Special Touch Home Care Services

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 351 NLRB No. 46 754 Special Touch Home Care Services, Inc. and New York’s Health and Human Service Union 1199/SEIU.1 Case 29–CA–26661 September 29, 2007 DECISION AND ORDER BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND KIRSANOW The central issue in this case is whether the Respon- dent violated Section 8(a)(3) and (1) by refusing to im- mediately reinstate economic strikers to their former or substantially equivalent positions of employment.2 For the reasons stated by the judge, we find that the Respon- dent violated the Act.3 For the reasons set forth below, 1 We have amended the caption to reflect the disaffiliation of the Service Employees International Union from the AFL–CIO, effective July 25, 2005. 2 On September 15, 2005, Administrative Law Judge Raymond P. Green issued the attached decision. Initially, the Respondent filed a nonconforming set of exceptions and supporting brief on November 23, 2005. The Charging Party submitted a brief in support of the judge’s decision, and the General Counsel moved to strike the Respondent’s submission. The Board’s Associate Executive Secretary issued an Order on July 6, 2006, an earlier order having been transmitted to the wrong address, striking the Respondent’s nonconforming documents but giving the Respondent leave to file conforming documents. On July 17, 2006, the Respondent again filed nonconforming exceptions and a brief. The Charging Party resubmitted its brief in support of the judge’s decision on July 28, 2006, and the Respondent filed a reply brief in support of exceptions on August 3, 2006. In the interim, on August 1, 2006, the General Counsel filed a motion to strike the Re- spondent’s exceptions. On April 18, 2007, the Board issued a Supple- mental Order striking the Respondent’s brief and accepting the excep- tions. (349 NLRB 759). (Chairman Battista dissented from the sup- plemental order.) On June 29, 2007, the Board issued a Second Sup- plemental Order denying the Respondent’s motion for reconsideration of the Supplemental Order and the General Counsel’s motion for an extension of time to file an answering brief to the Respondent’s excep- tions. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record in light of the exceptions and briefs (subject to its Supplemental Order), and has decided to affirm the judge’s rulings, findings, and conclusions, as modified and set forth in full below. 3 The Respondent has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an adminis- trative law judge’s credibility resolutions unless the clear preponder- ance of all the relevant evidence 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 examined the record and find no basis for reversing the findings. We grant the Respondent’s unopposed request to admit R. Exhs. 21 and 22, which it inadvertently failed to introduce into evidence during the hearing and which were the subject of a posthearing motion to admit on which the judge inadvertently failed to rule. The judge found that the Respondent violated Sec. 8(a)(1) by inter- rogating two home health aides. However, in finding these violations the judge erroneously stated at fn. 2 of his decision that the Respondent stipulated that all persons occupying the position of coordinator were however, we find that the Respondent lawfully termi- nated Crecencia Miller. Background As detailed in the judge’s decision, the Respondent subcontracts with nursing and health services providers to provide in-home care services to the elderly and in- firm. Its home health aides (aides) report to coordina- tors, who assign them clients and set their schedules, following which the aides report directly to the clients’ homes. At the time of the events in issue, the Charging Party Union, which was attempting to organize the aides, called a city-wide strike.4 On May 27, 2004,5 the Union gave the Respondent notice that the strike would com- mence Monday, June 7, and end Thursday, June 10.6 Following receipt of the notice, the Respondent’s co- ordinators contacted aides and inquired whether they intended to work during the strike.7 The coordinators scheduled “fill-ins” for all of the 75 aides who indicated that they would not be at work. When the strike com- menced on June 7, 48 additional aides struck who had not previously advised the Respondent that they would do so. Forty six of them struck for 1 day, and 2 remained on strike through June 9. supervisors. In fact, the Respondent stipulated only that the coordina- tors identified in the complaint were supervisors. Thus, in affirming the judge’s findings that the Respondent unlawfully interrogated home health aides, we rely solely on evidence that stipulated supervisors “Lydia” and Carmen Vasquez unlawfully interrogated aides Miriam Perez and Soila Peguero, respectively. We find it unnecessary to rely on his apparent finding that coordinator “Jasmine,” who was not in- cluded in the stipulation, also unlawfully interrogated aide Peguero. In finding that the Respondent unlawfully interrogated these aides, Chairman Battista notes that the interrogations occurred in the context of serious unfair labor practices, were initiated by phone calls from the coordinators, and the coordinators offered no assurances against repri- sal. See Rossmore House, 269 NLRB 1176, 1177 (1984), enfd. sub nom. 760 F.2d 1006 (9th Cir. 1985). We find it unnecessary to pass on the judge’s findings that the Re- spondent violated Sec. 8(a)(3) and (1) by suspending, discharging, and constructively discharging the discriminatees and by changing their hours or terms of employment because these findings are subsumed in the finding that the Respondent unlawfully failed immediately to rein- state the discriminatees to their former positions of employment or substantially equivalent positions, and because they would not materi- ally affect the remedy. 4 A representation petition filed on May 26, 2004, was withdrawn af- ter the Respondent challenged the showing of interest. A second peti- tion was filed on June 21, 2004. The Union was certified on November 2, 2005, well after the events in this proceeding. 5 Hereafter, all dates are in 2004, unless otherwise stated. 6 We agree with the judge’s finding that the strike notice provided the Respondent by the Union conformed to what would be required under Sec. 8(g) regarding work stoppages in health care institutions. Accordingly, we also agree with the judge’s conclusion that it is unnec- essary to determine the Respondent’s status as a Sec. 2(14) health care institution. 7 There is no allegation that the inquiries were unlawful. SPECIAL TOUCH HOME CARE SERVICES 755 The Respondent failed to reinstate the 48 aides to their former positions with their prestrike clients, immediately upon their unconditional offers to return to work. Except for the two who struck through June 9, all of these aides either called the Respondent on June 7, following a union rally, to advise that they would return on June 8, or they reported directly to their clients’ homes on June 8. Their reinstatement was delayed at least a week. The 75 aides who had advised the Respondent of their intent to strike when questioned were immediately reinstated to work with their prestrike clients. All but 3 of the 48 alleged discriminatees were ulti- mately reassigned in June, July, August, or September, although in some cases not to their prestrike clients or hours. The exceptions are aides Crecencia Miller, whose employment was terminated, as described in more detail below, and Petra Ortiz and Melania Navarro, who moved with their clients to other in-home care providers when the Respondent failed to reinstate them. The judge found that the Respondent unlawfully failed immediately to reinstate all 48 of the discriminatees to their former positions.8 As stated earlier, we agree with the judge’s rationale for finding that the Respondent vio- lated Section 8(a)(3) and (1) by failing to reinstate im- mediately to their former positions of employment or to substantially equivalent positions all of the discrimina- tees, except Miller, as to whom we reverse. As ex- plained below, we also agree with the judge’s finding that the discriminatees are entitled to reinstatement to their former positions or, if those positions no longer exist, to substantially equivalent positions, and to back- pay from the dates they unconditionally offered to return to work, i.e., June 8 or, in two instances, June 10. Crecencia Miller 1. Facts Miller had two regular clients, one whose home she reported to only on Tuesdays and Thursdays and the other whose home she reported to Monday through Fri- day, albeit for fewer hours on Tuesdays and Thursdays. The events described below involved the Monday through Friday client (the client).9 The Respondent’s vice president, Linda Keehn, and Miller’s coordinator, Edna Padilla, testified that prior to the strike, a decision was made to remove Miller from the client. Keehn testi- fied that Miller’s removal from the client had nothing to do with the strike, but rather was precipitated by com- 8 We leave to the compliance stage of this proceeding the issue of the effect of Ortiz and Navarro’s employment with other agencies on those discriminatees’ backpay. 9 To preserve confidentiality, clients were not identified by name during the hearing. plaints from the client and his family to the contracting agency about Miller’s tardiness and the contracting agency’s request to the Respondent that the client be removed from Miller’s care and assigned another aide. Keehn and Padilla testified that they tried to communi- cate this decision to Miller on Friday, June 4, and during the weekend immediately preceding the strike, and that a voice-mail message advising Miller of the decision was left on Miller’s telephone. Miller denied receiving any such message. Miller participated in the strike on June 7 and went to the client’s home later that day to tell him she would return on June 8. While at the client’s home, she was informed by the replacement aide that she had been per- manently replaced and, according to Padilla, Miller was instructed by Padilla over the telephone not to return to the home again.10 Miller returned to the client’s home on June 8, arriving earlier than the regular start of her shift and prior to the arrival of her replacement. Although there is some dispute whether Miller barred the replace- ment from entering the client’s apartment or whether the replacement declined to enter because of Miller’s pres- ence and her insistence that this was her client, it is clear that Miller refused repeated directions from her coordina- tor and Keehn to leave the premises. The Respondent explained to Miller that she had been replaced, ostensibly because of complaints from the client or the contracting agency. Miller returned to the client’s home on June 9, again directly defying the Respondent’s instructions that she should not go there. Only after the Respondent con- vinced the client’s daughter, who was at work, to call Miller and tell her to leave or the Respondent would call the police, did Miller leave the premises. She was never reassigned. On July 5, in response to Miller’s written inquiry about her status, Keehn wrote, in pertinent part, as follows: Unlike some aides who were no call/no show for their cases on June 7th, you were not scheduled by us to work that day, as we had assigned another aide to this case due to patient complaints. The assigned aide came to work at the start of the shift that day and was caring for the patient when you arrived at the patient’s home several hours late. Your coordi- nator was informed that you were at the patient’s home, and instructed you to leave so that the other aide (who was assigned to that case based on the prior patient complaints about you) could continue with her work. Not only did you refuse to leave but 10 Miller admitted that the replacement aide told her she had been permanently replaced, but she denied talking to Padilla, her coordina- tor, that day. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 756 you refused to answer the phone to speak to the co- ordinator after the initial call. At that moment in time, you were eligible to continue working for Spe- cial Touch but not for the patient who had com- plained about you. However, you refused to leave the home of the patient when asked by your coordinator, Edna. This misconduct on your part continued on June 8th and June 9th as well. You arrived at the patient’s home early[,] entered and improperly refused to allow the assigned aide in to perform her duties. At that point you were no longer assigned to the case and had no reason to be in that home. When Edna and her su- pervisor, Estella, repeatedly asked you to leave the home and allow the assigned aide to perform her du- ties you refused. Your continued refusal to leave, after several requests, and your refusal to follow the instructions of your supervisor led to your termina- tion from Special Touch. . . . You acknowledge that most of the other workers who were removed from their cases following their strike received a letter from Special Touch inform- ing them that they were not being terminated and would be re-assigned as soon as possible. You did not get such a letter because (a) your employment had ended before the letters were sent out and (b) we had no intention of rehiring you after your repeated insubordination. The judge found that the Respondent’s contention that Miller was removed from her client prior to the strike and permanently replaced was undermined by testimony from the client’s daughter that she never complained about Miller and that her father was happy with Miller, and testimony from a representative of the contracting agency who found no record of a complaint or a request for removal in its files. Having found that the Respon- dent did not demonstrate that Miller had been perma- nently replaced, the judge found that she was entitled to be reinstated to the client on June 8, and that the Respon- dent’s failure to do so violated Section 8(a)(3) and (1) of the Act. Without elaboration, he also concluded that because the Respondent’s refusal to reinstate Miller con- stituted a violation of the Act, its subsequent discharge of Miller, even if prompted by her repeated refusals to leave the client’s premises, would also violate Section 8(a)(3) and (1). 2. Analysis In analyzing Miller’s discharge, we start from the premise that the Respondent’s purported nonstrike- related reasons for replacing her were not proved; and the Respondent does not assert that Miller’s replacement was a striker replacement, let alone a permanent striker re- placement. Therefore, we find, as the judge did, that Miller was entitled to resume working with her client on June 8. The question then becomes whether Miller was subsequently lawfully discharged. As explained below, we find that she was. The record establishes that, unlike any of the other dis- criminatees who were wrongfully denied immediate rein- statement, Miller refused the Respondent’s repeated in- structions on June 8 and 9 to leave the client’s premises. Unlike any of the other discriminatees, Miller created a standoff at her client’s home by refusing to leave the premises as directed by her superiors. Her conduct ex- ceeded the acceptable bounds of disagreement with the Respondent’s directive. After reporting to the client’s home on June 8, despite the Respondent’s directive that she not do so, Miller defied the Respondent’s repeated instructions to leave. On June 9, she continued her in- subordinate conduct, leaving only after the client’s daughter warned her that the Respondent would summon the police if she remained. Significantly, the Respondent had previously termi- nated an aide for refusing instructions to leave a patient’s home only 7 months earlier. On January 21, the Respon- dent was instructed by a contracting agency to replace aide Lyubov Nikitina. The client’s family rejected the replacement, so the contracting agency instructed that Nikitina remain with the patient. The following day, the contracting agency notified the Respondent that home care services would be provided by a different entity, which would send a new aide to the client’s home. When the new aide arrived, the Respondent instructed Nikitina to leave the premises. Receiving countermands from the patient’s family, Nikitina refused. The Respon- dent terminated her, effective immediately. Thus, the Respondent has discharged an aide for refusing an in- struction to leave a client’s home even where, as here, the aide received conflicting instructions from the client or the client’s family. Even where an employee’s insubordination is pro- voked by an employer’s unfair labor practices, it is not necessarily protected by the Act. Rather, the employee’s conduct must be evaluated by comparing “the serious- ness of the employer’s unlawful conduct with the extent of the employee’s reaction.” Kolkka Tables & Finnish– American Saunas, 335 NLRB 844, 849 (2001) (internal quotations omitted). Here, even assuming that the Re- spondent could not have lawfully taken the position that Miller had already been permanently replaced when Miller attempted to resume working with her client, Miller’s insubordination was egregious. Miller repeat- SPECIAL TOUCH HOME CARE SERVICES 757 edly refused to leave the client’s home,11 despite being told by her coordinator to do so.12 Additionally, there is no evidence that the client’s medical condition required constant home care attention, and even if it did, the Re- spondent sent a replacement aide to take care of the cli- ent. On the basis of all of foregoing, we find that the Respondent did not violate the Act by discharging Miller.13 Striker Reinstatement The Respondent contends, among other things, that it returned the aides to work within a reasonable period of time after the economic strike ended. Its exceptions mis- takenly suggest that it had 5 days from the end of the strike on June 9 to begin reassigning the aides it replaced when they failed to call in before participating in the strike. Employees who engage in economic strikes are enti- tled to reinstatement to their former positions immedi- ately upon their offer to return to work, unless they have been permanently replaced. See, e.g., Sutter Roseville Medical Center, 348 NLRB 637 (2006); Fairfield Tower Condominium Assn., 343 NLRB 923 (2004). A delay in reinstating strikers may be excused by a legitimate busi- ness justification. Pacific Mutual Door Co., 278 NLRB 11 Our finding that Miller repeatedly disregarded the Respondent’s directives is premised on her refusal to follow instructions on June 7 not to return to the client’s residence and her later refusals to follow instructions on June 8 and 9 to leave the residence. 12 Our dissenting colleague’s assertion that Miller was entitled to ig- nore instructions to leave is seriously undermined by evidence that Miller had been told that she should not return to the client’s premises because she had been replaced. Her actions were not a continuation of her protected activity, but insubordination. Although Miller may have disputed the Respondent’s explanation for removing her from the cli- ent, that did not give her license to repeatedly disobey her coordinator’s instructions that she should not go to the client’s home and, when Miller nevertheless went to the client’s home, that she should leave. 13 For the reasons stated by the judge, Member Liebman finds that the Respondent unlawfully refused Miller reinstatement and unlawfully terminated her. She relies on the judge’s crediting of testimony show- ing that the Respondent’s asserted reason for replacing Miller, alleged complaints from the client and his family, were untrue, as well as the absence of any evidence other than Miller’s participation in the strike to explain the Respondent’s refusal to continue assigning her to the client. Absent a legitimate reason for replacing Miller and absent a lawful reason for refusing to reinstate her immediately to her former position, the Respondent could not lawfully terminate her for insisting, even obstinately, on reinstatement. Employers are responsible for the conse- quences of their unfair labor practices. See Kolkka Tables & Finnish– American Saunas, supra at 849–850 (employee’s refusal to leave plant was clearly provoked by the employer’s unlawful order to remove union stickers from toolbox and unlawful suspension for refusing to remove them. Given that the Respondent unlawfully abridged Miller’s reinstatement right to be present at the client’s home on June 8, and that her refusal to leave was directly provoked by the Respondent’s unfair labor practice, Member Liebman finds that the Respondent cannot rely on Miller’s purported insubordination to justify terminating her. 854, 856 (1986) (replacements hired pursuant to term contracts with a temporary agency). In Sutter Roseville Medical Center, the union notified the employer hospital that employees it represented would engage in a 1-day strike on November 14. The strike notice also contained an unconditional offer to return to work on November 15. The hospital made ar- rangements with a temporary employment agency pursu- ant to 5-day contracts to hire some striker replacements. The other striker replacements the hospital used were in- house managers, supervisors, and nonunit employees. When the strike ended, the hospital delayed the rein- statement of strikers for 5 days, including strikers who had been replaced by in-house personnel. The Board found that the hospital acted unlawfully by delaying the reinstatement of the strikers whom it had replaced with in-house personnel beyond the date of the unconditional offer for the strikers to return to work.14 The Board ex- plained that while an employer has a reasonable time, up to 5 days, to reinstate unfair labor practice strikers, there is no 5-day rule for the reinstatement of economic strik- ers. In that case, in particular, there was no reason to permit the employer to delay reinstatement for up to 5 days, given that the hospital was forewarned that the strike would last only 1 day. Similarly, here, the aides engaged in an economic strike, and the Respondent replaced the strikers with em- ployees who were already on its rolls. Additionally, hav- ing received advance notification of the duration of the strike, the Respondent was aware that the aides who joined it would be out no more than 3 days. Finally, the Respondent has not articulated a justification, other than its erroneous assumption that it could wait for 5 days before reinstating the strikers, for delaying the reinstate- ment of the discriminatees until after June 14.15 Accord- ingly, we affirm the judge’s finding that the Respondent violated Section 8(a)(3) and (1) by delaying reinstate- ment of the discriminatees. 14 The complaint in that case did not allege a violation for the re- spondent delaying the reinstatement of strikers who had been replaced by temporary contract employees. 15 Although there are some references in the record implying that re- placements were permanent, the Respondent has failed to present any detailed evidence to clarify the status of the replacements drawn from the Respondent’s established roster of employees. Accordingly, we find that the Respondent has failed to establish the replacements’ per- manent status. Quantum Electric, Inc., 341 NLRB 1270, 1281 (2004); Consolidated Delivery & Logistics, 337 NLRB 524, 526 (2002), enfd. 63 Fed. Appx. 520 (D.C. Cir. 2003). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 758 ORDER16 The National Labor Relations Board orders that the Respondent, Special Touch Home Care Services, Inc., Brooklyn, New York, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to immediately reinstate eco- nomic strikers who offered to return to work to their former positions of employment or to substantially equivalent positions of employment. (b) Interrogating employees about their support or ac- tivities for New York’s Health & Human Service Union 1199/SEIU. (c) In any like or related manner interfering with, re- straining, 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) Within 14 days from the date of this Order, offer to those strikers who have not yet returned to their former jobs, or those who have had their hours or other terms and conditions of employment changed since the strike, immediate and full reinstatement to their former posi- tions of employment or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed. (b) Make whole the striking employees who uncondi- tionally offered to return to work on June 8, 2004, or at the end of the strike on June 10, 2004, and who were not reinstated immediately, for any and all losses incurred due to the denial of reinstatement to their normal as- signments, in the manner set forth in the remedy section of the judge’s decision as amended herein. (c) Within 14 days from the date of this Order, remove from its records all reference to the unlawful actions taken against the 47 discriminatees, and within 3 days thereafter advise them in writing that this has been done and that these actions shall not be used against them in any way. (d) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place desig- 16 In the remedy section of his decision, the judge provided that all strikers be made whole as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950). However, some strikers were reinstated, just not to their former assignments. Because the Respondent’s discriminatory conduct toward these strikers did not result in the cessation of their employment, the make-whole remedy as to them is properly calculated as prescribed in Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), with interest as prescribed in New Hori- zons for the Retarded, 283 NLRB 1172 (1987). We hereby amend the remedy section of the judge’s decision accordingly. nated by the Board or its agents, all payroll records, so- cial security payment records, timecards, personnel re- cords and reports, and all other records, including an electronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order. (e) Within 14 days after service by the Region, post at its facility in Brooklyn, New York, copies of the attached notice marked “Appendix,” printed in English, Spanish, Russian, and Chinese.17 Copies of the notice, on forms provided by the Regional Director for Region 29, after being signed by the Respondent’s authorized representa- tive, shall be posted by the Respondent 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 Respon- dent to ensure that the notices are not altered, defaced, or covered by any other material. The Respondent shall also duplicate and mail, at its own expense, a copy of the notice to all employees employed by the Respondent at any time since June 8, 2004. (f) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- testing to the steps that the Respondent 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 vio- lated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT fail or refuse to immediately reinstate economic strikers who offered to return to work to their 17 If this Order is enforced by a Judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” SPECIAL TOUCH HOME CARE SERVICES 759 former positions of employment or to substantially equivalent positions of employment. WE WILL NOT interrogate employees about their sup- port or activities for New York’s Health & Human Ser- vice Union 1199, SEIU. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL, within 14 days from the date of the Board’s Order, offer to those strikers who have not yet returned to their former jobs, or those who have had their hours or other terms and conditions of employment changed since the strike, immediate and full reinstatement to their for- mer positions of employment or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privi- leges previously enjoyed. WE WILL make whole, with interest, the 47 strikers for any loss of earnings and other benefits suffered as a re- sult of our refusal to reinstate them to their former jobs. WE WILL, within 14 days from the date of the Board’s Order, expunge from our records all reference to the unlawful actions taken against the 47 discriminatees, and WE WILL, within 3 days thereafter, advise them in writing that this has been done and that these actions shall not be used against them in any way. SPECIAL TOUCH HOME CARE SERVICES, INC. Henry Powell, Esq., Rachel Zweighaft, Esq., and Rosalind Rowan Rossi, Esq., for the General Counsel. Richard J. Reibstein, Esq., for the Respondent. David Slutsky, Esq., for the Union. DECISION STATEMENT OF THE CASE RAYMOND P. GREEN, Administrative Law Judge. I heard this case in Brooklyn, New York, from May 17 through 23, 2005. The charge and amended charges were filed on November 30, 2004, and January 28, 2005. The complaint was issued on February 28, 2005, and alleged: 1. That on May 27, 2004, New York’s Health and Human Service Union 1199/SEIU, AFL–CIO, CLC1 (the Union) noti- fied the Respondent that it intended to strike, picket, and en- gage in other concerted refusals to work at the Respondent’s facility starting on June 7, at 6 a.m. and ending on June 10, 2004, at 6 a.m. 2. That on May 28, 2004, the Union faxed a notice to the Federal Mediation and Conciliation Service to the same effect. 1 It is my understanding that subsequent to the hearing in this case, the SEIU has terminated its affiliation with the AFL–CIO. [Effective July 25, 2005.] 3. That on or about June 2, 2004, the Respondent by Jas- mine, a coordinator2 (a) interrogated employees about their union activities; (b) directed employees not to speak to union representatives; (c) directed employees not to sign union cards; (d) threatened to shorten employees’ hours; (e) threatened em- ployees with the loss of vacations; and (f) threatened employees with the loss of patients if they went on strike. 4. That on June 7, 2004, certain employees ceased work and engaged in a strike. 5. That on or about June 8, 2004, the Respondent by Ana Gonzalez, a coordinator, made threats of reprisals to employees if they went on strike. 6. That from about June 8, 2004, until various dates in June 2004, the Respondent, for discriminatory reasons suspended 18 employees. 7. That from on or about June 8 until about 28, 2004, the Respondent, for discriminatory reasons suspended Norma Lin- dao and has, since June 28, reduced her hours of work. 8. That from on or about June 8 until early August 2004, the Respondent, for discriminatory reasons suspended Reina Santi- ago and in early August until January 2005 reduced her hours of work. 9. That from June 8 until early August 2004, the Respon- dent, for discriminatory reasons suspended Lidia Solano and since August until September 11, reduced her hours of work. 10. That from June 8 until late June 2004, the Respondent, for discriminatory reasons suspended Petra Ortiz and since late June until August 2004, reduced her hours of work. 11. That on or about June 8, 2004, the Respondent, for dis- criminatory reasons constructively discharged Maria Nieves, Altagracia Matos, and Zoila Nivelo. 12. That on or about June 8, 2004, the Respondent, for dis- criminatory reasons discharged Crecencia Miller, Melania Navarro, and Lazurus Phillips. 13. That on or about June 10, 2004, the Respondent by Jas- mine (a) interrogated employees about their union activities; (b) made implied threats of reprisals; (c) threatened employees with discharge; and (d) directed employees not to sign union authorization cards. 14. That on or about June 17, 2004, the Respondent by Jas- mine (a) interrogated employees about union activities, and (b) directed employees not to sign union authorization cards. 15. That on or about June 20, 2004, the Respondent by an assistant to Estrella (a) interrogated employees about union activities and (b) created the impression of surveillance. 16. That on or about June 30, 2004, the Respondent, for dis- criminatory reasons, reduced Ramona’s then hours of work. 17. That in mid-July 2004, the Respondent by Lydia, a co- ordinator, interrogated employees about their union activities. 18. That on or about August 23, 2004, the Respondent by Carmen Vasquez, a coordinator (a) directed employees to speak to management before voting in an NLRB election and (b) threatened to close the agency if the employees voted for the Union. 2 The parties stipulated that those individuals occupying the position of coordinator were supervisors within the meaning of Sec. 2(11) of the Act. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 760 19. That in August 2004, the Respondent, for discriminatory reasons discharged Petra Ortiz. To make a long story short, the essential allegation in this case is that notwithstanding an 8(g) strike notice having been given by the Union, the Employer refused to reinstate to their former positions of employment many of the employees who engaged in a 1- to 3-day strike that commenced on June 7 and ceased on June 9, 2004. The Respondent contends that despite the notice, the Employer was legally free to either not reinstate or reinstate to other jobs, employees who went out on strike who either did not give personal notification of their intention to strike or who had, during the previous week, personally indi- cated that they would work during the strike period. Based on the entire record, including my observations of the demeanor of the witnesses and after considering the arguments of counsel, I make the following FINDINGS AND CONCLUSIONS I. JURISDICTION The parties agree and I find that the Respondent is an em- ployer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the National Labor Relations Act (the Act) and that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES The Respondent is located in Brooklyn, New York, and is a provider of home care services. In doing so, it is a subcontrac- tor to various enterprises that provide nursing and health- related services. The employees involved are home health aides who are as- signed by the Respondent to individuals who are either elderly or sick or both. They provide nonmedical services such as housecleaning, shopping, cooking, and bathing as well as such services as reminding clients to take their medications. Al- though trained in some first aid techniques, they are not li- censed to and cannot provide any kind of medical services. When such services are needed, they are provided either by an attending nurse or a physician. Many of the clients are old and suffer such conditions as Alzheimer’s, Parkinson’s disease, Diabetes, etc. In June 2004, the Respondent employed about 2500 aides. At any given time, it had about 1400 aides who were assigned to specific clients. Some of the aides had permanent assign- ments and some were on-call employees who had ad hoc as- signments. Nevertheless, the distinction between the two was somewhat fluid. Aides could be assigned for various periods of time. Most patients have coverage by an assigned aide on a 5- day/4hr.-per-day basis or 53 hours per week. Some patients have aides on a 24/7 basis and the assignments are split be- tween various employees. On the other hand, some patients need much less care and are visited by an aide for 2 hours per week. Upon release from a hospital or pursuant to a doctor’s instructions, a nurse (employed by a company other than the Respondent such as the Visiting Nurses Association) ascertains what degree of care is necessary and appropriate for each pa- tient. The nurse also visits the home to make sure that the home is set up for the patient who may need to have special equipment or to make sure that furniture, rugs, and utensils are maintained in a safe manner. The clients are matched with aides, primarily on the basis of language. The four major languages are English, Spanish, Chi- nese, and Russian. The Company uses three supervisors who supervise about 30 coordinators who in turn, give out the as- signments to the aides. On May 26, 2004, the Union filed a first petition in Case 29– RC–10216 seeking to represent the home health aides of the Respondent. It seems that the Employer challenged the show- ing of interest and that this petition was withdrawn. The Union filed a second petition on June 21, 2004 in Case 29–RC–10233. On May 27, 2004, the Union sent a 10-day notice to the Company, in conformity with Section 8(g) of the Act, stating that there would be a strike commencing on Monday, June 7, 2004, at 6 a.m. and ending on Thursday, June 10, 2004, at 6 a.m.3 During the week before June 7, the Respondent, through its supervisors, contacted its employees and asked if they intended to work during the week of June 7.4 In many cases, employees said that they were going to participate in the strike while oth- ers said they would be coming into work. Based on the survey, and having a large reserve of on-call employees, the Company made arrangements to have on-call employees cover the clients of those aides who indicated that they were going to participate in the strike. On June 7, 2004, many employees of the Respondent de- cided to engage in the strike. A group of 48 employees who engaged in the strike, did not previously notify the Respondent that they would not be at work during that week. The evidence was that all of these individuals had, at the time of the strike, permanent assignments to specific clients. That is, they were not on-call employees. Of this group, 46 engaged in the strike for only 1 day and sought to return to work, at their previous assignments, on the morning of June 8. Two, Solia Peguero and Altagracia Matos, participated in the strike from June 7 through 9 and did not seek to return to their previous assignments until June 19. With respect to those employees who engaged in the strike and who had notified the employer, during the preceding week, that they would be out of work from June 7 through 9, they were put back to work at their previous assignments. However, as to the 48 employees who went on strike and who had not given such personal notification to the Company,5 there is no dispute that with the exception of Lazarus Phillips (whom the Respondent asserts had quit before the strike), and Crecencia Miller and Melania Navarro (whom it asserts were discharged for cause during or after the strike), they all were not immediately reinstated to their previous assignments until 3 Although it is far from clear that the Respondent provides medical services, it seems that the parties herein, assumed that it is a health care facility within the meaning of the Act. 4 The General Counsel does not contend that this activity constituted unlawful interrogation. 5 There was testimony by the General Counsel’s witnesses that in many instances the aides told their clients and/or the client’s families, during the week before June 7, that they intended to participate in the strike. SPECIAL TOUCH HOME CARE SERVICES 761 sometime after June 14, 2004. This is because management, by Linda Keehn, decided that this group had violated the Respon- dent’s “no-call, no show” rule. In this regard, she sent a letter to this set of employees on June 14, 2004, stating: On May 28, 2004, the New York State Department of Health directed “Special Touch to conduct a survey . . . because of its concerns that some patients may not receive proper . . . service beginning June 7th. . . . You were asked if you would be taking any time off the week of June 7th. You told us that you would be working. Despite your assurance, you did not show up at the pa- tient’s home on June 7th, nor did you call into the office at any time prior to the start of your shift to advise us that you would not be working that day. As a result, you left the patient at risk at being unattended by a home health aide. You know that Special Touch policies and procedures require you to call in. They provide that: You are expected to report to your assignment each day that you are scheduled. Incidents of unexcused absenteeism will be cause for disciplinary action and can result in you[r] immediate dismissal. . . . . It has come to our attention that a number of . . . aides who failed to call in to tell us that they were not working on June 7th were confused whether they needed to call in. We understand that some aides were told by 1199/SEIU not to call in or that it was not necessary to call in. First of all, 1199 does not represent our employees. Second, it is our belief that these types of statements . . . are not legally correct or have the potential to cause detriment to our pa- tients’ health and safety. Even though we believe that an employee has the legal right in these or similar circumstances to terminate its health care workers, we think that termination of employ- ees is not appropriate where a number were confused or given poor advice by a union that does not represent them. We think a more appropriate response is to advise you what actions Special Touch will take should this type of circumstance ever occur again. . . . . Please note that Special Touch recognizes that em- ployees have the right to strike, provided that they do so in accordance with the law. In the future, aides who fail to act in accordance with the law or who forfeit their rights under law because of their conduct or by endangering pa- tients will be subject to immediate dismissal. It should be pointed out that although this June 14 letter stated that the Respondent was not intending to discharge any of the strikers involved in the present case, it did not offer to reinstate them to their former work assignments. Therefore, while asserting that the Respondent decided not to discharge any of these employees, it did decide either (a) to put them back to their previous assignments at various times after the offers to return to work; (b) to reinstate them to different assignments, which in many cases had fewer hours and there- fore reduced income; or (c) never offered to reinstate some to anything other than temporary positions. In at least one in- stance, strikers such as Zoila Nivelo, despite receiving the June 14 letter, never received any new assignment offers from the Respondent. As to those individual cases where there is some dispute, I will discuss them separately below. The General Counsel also alleges that the Respondent, by several of its agents, on a few occasions during the week pre- ceding the strike, interrogated and/or threatened employees. These allegations are not all that significant in the broader con- text of this case and they will also be discussed below. Analysis As stated above, there is substantial doubt in my mind as to whether this Respondent should be construed as a health care provider within the meaning of the Act.6 The services provided by the Company are not medical services, albeit they are pro- vided only after a client receives medical orders from a doctor or nurse to people whose conditions range from somewhat en- feebled to seriously ill or disabled. Obviously, if these services were performed by employees working for or within a nursing home or hospital, their employer would be construed as a health related employer. But the services are performed in individu- als’ homes and are not medical services at all. Nevertheless, this is an issue that need not be reached be- cause the Union, acting on the assumption that the Respondent might be construed as a health related facility, decided to give the 10-day 8(g) strike notices that would be required if such was the case. A fundamental right embedded in the Act is the right of em- ployees to engage in concerted strikes for the purpose of orga- nizing for and obtaining union representation or attempting to improve their wages, hours, or other terms and conditions of employment. NLRB v. Washington Aluminum Co., 370 U.S. 9 (1962). Nor can an employer legitimately contend that em- ployees who engage in a primary strike can be fired or other- wise disciplined because they failed to comply with a company rule such as one requiring them to get permission or give notice before they absent themselves from work. For if that were the case, then an employer could, by enactment of a private rule, nullify the public rights guaranteed by a statute of the United States. As stated by the Court in NLRB v. Washington Alumi- num, supra: Section 10(c) of the Act does authorize an employer to dis- charge employees for “cause” and our cases have long recog- nized this right on the part of an employer. But this, of course cannot mean that an employer is at liberty to punish a man by discharging him for engaging in concerted activities which Section 7 of the Act protects. And the plant rule in question here purports to permit the company to do just that for it would prohibit even the most plainly protected kinds of con- 6 Sec. 2(14) states: The term “health care institution” shall include any hospital, convales- cent hospital, health maintenance organization, health clinic, nursing home, extended care facility, or other institution devoted to the care of sick, infirm, or aged person. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 762 certed work stoppages until and unless the permission [sic] the company’s foreman was obtained. When Congress passed the 1974 Health Care Amendments, the Board was empowered to assert jurisdiction over private institutions in the health care industry. As such, employees, unions, and employers were afforded essentially the same pro- tections and obligations of the Act, on a national basis, as per- sons in other industries subject to the jurisdiction of the Board. Thus, privately employed health care employees, on a national basis, were now entitled to organize and join labor organiza- tions, to bargain through representatives of their own choosing, and to engage in picketing or strikes to the extent not prohibited by Section 8(b)(4) and (7) of the Act.7 Nevertheless, recognizing that the right to strike might pre- sent particular problems not present in other industries, Con- gress also enacted Section 8(g) which states: A labor organization before engaging in any strike, picketing, or other concerted refusal to work at any health care institu- tion shall, not less than ten days prior to such action, notify the institution in writing and the Federal Mediation and Concilia- tion Service of that intention, except that in the case of bar- gaining for an initial agreement following certification or rec- ognition the notice required by this subsection shall not be given until the expiration of the period specified in clause (B) of the last sentence of section 8(d) of this Act [subsection (d) of this section]. The notice shall state the date and time that such action will commence. The notice, once given, may be extended by the written agreement of both parties.8 Section 8(g) to the extent that it imposes a limitation on the right to strike, imposes merely a 10-day notice and waiting requirement. This however, was imposed only on unions and not employees. Walker Methodist Residence & Health Care Center, 227 NLRB 1630, 1631–1632 (1977). Notwithstanding that there is nothing in the Act that requires employees to give advance notice of a strike to an employer in any industry covered by the Act, the Respondent asserts that such notice should be required here because of an imminent danger to its clientele. Such a qualification on the right to en- gage in Section 7 concerted activity is not specified in this stat- ute and even if it could be read into the Act, would not be ap- plicable to the facts in this case. 7 I am not unmindful that there are a limited number of other situa- tions where strikes may not be protected by the Act. These would include sit down strikes (where employees basically occupy the Re- spondent’s premises); intermittent strikes; or strikes in breach of a valid no-strike clause where such a clause is a quid pro quo for an arbitration provision in a collective-bargaining agreement. However, none of those situations is relevant to the present case. 8 Sec. 8(d) in pertinent part states: Any employee who engages in a strike within any notice period speci- fied in this subsection, or who engages in any strike within the appro- priate period specified in subsection (g) of this section, shall lose his status as an employee of the employer engaged in the particular labor dispute, for the purposes of sections 8, 9, and 10 of this Act [sections 158, 159, and 160 of this title], but such loss of status for such em- ployee shall terminate if and when he is reemployed by such em- ployer. For example, in Bethany Medical Center, 328 NLRB 1094 (1999), the Board held that employees in a catheterization lab were engaged in protected concerted activity even though they gave notice of a walkout only 15 minutes prior to the first scheduled procedure. The Board held that as this was a strike by employees, they were not required to give 8(g) notices. Also, the Board held that the minimal advance notice did not, in fact, endanger the health or safety of any patients. Although noting that it stated in Marshall Car Wheel & Foundry Co., 107 NLRB 314 (1953), enf. denied 218 F.2d 409 (5th Cir. 1955), that concerted activity may be “indefensible” where employee “fail to take reasonable precautions to protect the employer’s plant, equipment, or products from foreseeable imminent dan- ger to sudden cessation,” the Board held that the facts in Beth- any did not rise to that level. It noted that although five pa- tients were scheduled for the procedure, all of those cases were routine and that when the walkout occurred, the procedures were either delayed or the patients were transferred to 1 of about 20 other hospitals capable of performing the procedure in the near vicinity. The Respondent also cites Montefiore Hospital v. NLRB, 621 F.2d 510 (2d Cir. 1980). But the facts of that case are different. In that case, the court held that certain doctors who were not represented by a union and who engaged in a sympathy strike without having given an 8(g) notice were nevertheless engaged in concerted activity that was protected by Section 7 of the Act. The court rejected the company’s contention that the doctors were not engaged in protected activity because they did not give advance notice. The court stated that if it adopted the position that any strike without notice by a doctor is unpro- tected, “we would in effect be rewriting Section 8(g) in the very manner we have concluded that Congress did not intend.” In reversing certain of the Board’s conclusions about the doctor’s rights to backpay and reinstatement, the court found that the doctors after commencing the strike, engaged in unprotected picket line activity pursuant to which they forfeited their rein- statement rights. Assuming arguendo that an “imminent danger” qualification can be read into the Act’s conference of the right to strike, the evidence does not establish that such a danger existed in this case. The evidence shows that upon being given the 10-day notice, the Employer ascertained, with a fairly high level of accuracy, how many of its employees, regularly assigned to clients, would have to be replaced for the few days on which the strike would take place. To a limited extent, some employees who had responded to the Company’s inquiries and had stated that they would go to work, decided to change their minds and to participate in the strike. At the end of the day on June 7, 2004, there were only about five clients for whom the Respondent could not get coverage. And as to them, there was no evidence that they suffered any adverse consequences. Nor did the Em- ployer present evidence as to the particular disabilities or condi- tions of the five clients for whom replacement aides could not be immediately found. We therefore cannot even opine as to whether they were in any danger at all. (I also note that the aides who testified in this proceeding stated that even though SPECIAL TOUCH HOME CARE SERVICES 763 they did not notify the Company of their intention to engage in the strike, they did notify family members of their clients.) The Respondent also argues that the employees’ right to strike, absent some prior notice, was somehow affected by the fact that at the time of the strike, the Union had not yet obtained bargaining status pursuant to Section 9(a) of the Act. Frankly, I don’t understand this argument or how it could be relevant to the facts of this case. I therefore reject it. Based on the above, I conclude that the employees in ques- tion were not required to give any notice of their intention to engage in a strike as such notice is not required by the clear and unambiguous provisions of Section 8(g) of the Act. I also con- clude that the Employer has not proffered sufficient evidence to show that the strike or the failure of any individual to give no- tice of his or her intention to participate in the strike caused or could have caused any “imminent danger” to the Respondent’s clientele. Nor do I find that the Respondent has shown that it hired or transferred other employees to replace these strikers as perma- nent replacements. In this regard, an employer is entitled to hire permanent replacements for economic strikers and need not discharge the replacements to make room for the strikers. NLRB v. Mackay Radio & Telegraph Co., 304 U.S. 333, 335 (1938), reaffirmed in NLRB v. Fleetwood Trailer Co., 389 U.S. 375 (1967). However, it is incumbent on the Employer to es- tablish that the replacements hired were in fact permanent and not merely temporary replacements. And in my opinion, the Respondent has not shown that in obtaining replacements for these strikers, that it hired or transferred employees as perma- nent rather than temporary replacements. Chicago Tribune Co., 304 NLRB 259, 261 (1991) (the employer must show a mutual understanding between itself and the replacements that they are permanent). Therefore, when the Employer did not reinstate these strikers to their former positions of employment, immediately upon their offers to return to work, I conclude that the Respondent has violated Section 8(a)(1) and (3) of the Act.9 I also note that having offered to cease striking and to return to work, it was not the responsibility of the individual employees to seek new assignments from the Respondent. Rather, the obligation was on the Respondent to seek out these employees and offer them either their old jobs back or substantially equivalent employ- ment if their old jobs were no longer available. Among the 48 strikers who are involved in this case, most were reinstated to their former jobs at some point soon after June 14, 2004. As to the set of employees who were reinstated to their former jobs, the backpay owed to them would be the number of days from June 8 to the time that they resumed their former jobs. (In the cases of Altagracia Matos and Solia Peguero, it would be the number of days from June 10 to the time that they resumed their former jobs.) 9 In many instances, the employees made clear their intention to come back to work by either calling the Respondent on June 7 or by showing up at their clients homes on June 8. In any event, the Union’s strike notice contains within its text, the offer to return to work on the morning of June 10, 2004, since the notice indicates that the strike would be over by June 10, 2004, at 6 a.m. There were, however, a group who were not reinstated to their former assignments and who had their hours of work sub- stantially changed. Norma Lindao, who had regular assignments with two cli- ents before June 7, was given temporary assignments for a pe- riod until July 24, 2004, when she was given a new long-term assignment. Nevertheless, even after this new assignment, the number of hours assigned to her remained below the number given to her before the strike. Reina Santiago after participating in the strike on June 7, and returning to her client on June 8, was removed from that client. Apart from some brief temporary assignments, she was not given another regular assignment until August 2004. Ramona Then had regular assignments with two clients be- fore June 7; one during the week and another on the weekends. She participated in the strike on June 7, and when she went back to her weekday client on June 8, there was another aide present and she was told to go home. About 2 weeks later, Then was reinstated to her weekday client but was not reas- signed to her weekend client. Lidia Solano was assigned on a regular basis to a client dur- ing the weekdays from 9 a.m. to 1 p.m. She participated in the strike, notwithstanding having told the Respondent that she intended to work on June 7. On the afternoon of June 7, Solano told Metabel that she was going to return to work on June 8 and was told that she should not. After June 14 and until sometime in September 2004, Solano received some temporary assign- ments and was not reinstated to a permanent assignment until some time in September when she was given an assignment involving two 12-hour shifts on the weekends. (This would be 24 hours per week as opposed to her prestrike assignment of 20 hours per week.) The General Counsel also contends that a small number of the strikers were either expressly fired or by being offered an insignificant numbers of assignments after the strike, were ef- fectively fired. Before the strike, Altagracia Matos had a regular assignment of 40 to 60 hours per week. She participated in the strike that began on June 7 but unlike most of the others who offered or attempted to return to work at their client’s homes on June 8, Matos and another employee, Solia Perguero, participated in the strike through June 9. After the strike, she received the June 14 letter and testified that she attempted to call the Re- spondent for work on numerous occasions. Matos was never reinstated to her former client and received a minimal number or assignment offers after June 8.10 Although Respondent’s agent, Carmelita Wilson testified that a person from the Jewish Agency instructed the Respondent to not put Matos back with her client, the Respondent offered no explanation for this al- leged instruction and did not present anyone from that agency to confirm or explain the circumstances. Petra Ortiz, prior to the strike, had a client for whom she worked about 40 hours per week. She participated in the strike 10 The Respondent offered some evidence that Matos was given sev- eral short-term assignments in late June and in July 2004. These how- ever, cannot be construed as constituting reinstatement to her former position of employment. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 764 on June 7, and when she returned to the client on June 8, was told that she was being removed from the assignment. When the client protested the reassignment, the client terminated her relationship with the Respondent and went to another agency. At the same time, Ortiz quit the Respondent and went to work for the same agency chosen by the client. Thus, the two re- mained together after the strike. I suppose that since Ortiz’ quitting came about as a result of the chain of events resulting from her participation in the strike; namely the Respondent’s refusal to reinstate Ortiz to her client and the client’s change of agency, her quitting should be construed as a constructive dis- charge. By the same token, I should note that her backpay probably would be very limited because she obtained immedi- ate other employment and continued to work with the same client. Prior to the strike, Maria Nieves had a regular assignment with a client with whom she had worked for more than 3 years. Nieves participated in the strike on June 7, but when she re- turned to the client’s home on June 8, she was told by a super- visor that she had been removed from this client. From that date, Nieves received three-short temporary assignment offers, one of which she refused because it was for only 4 hours. Zoila Nivelo had two regular assignments before the strike, one during the week and the other on the weekends. She par- ticipated in the strike on June 7, but on June 8 when she showed up at her weekday client’s home, she was told that she was no longer assigned to either the weekday or weekend cli- ents. Nivelo testified that although she was told by the supervi- sor that she would be in touch with her, Nivelo has never been contacted by the Respondent and has not been offered any new assignments. She started working for another agency on June 15, 2004. Before June 7, Lazarus Phillips worked with one client and was told on June 8, by coordinator Ann Marie, after he partici- pated in the strike, that he should go home. He testified that she told him that he was terminated. (She did not testify for the Respondent.) Phillips received the June 14 letter but asserts that he was not offered any reassignments. The Respondent asserted through the testimony of Desiree Cooper that it believed that Phillips had quit. Cooper testified that she called him about reassignments after June 14, and that he told her that he didn’t want to return to work and wanted to go back to his home country. In this regard, I note that Phillips was himself an elderly gentleman who had some difficulty in walking. Cooper’s testimony that Phillips told her that he wanted to go back to his home country was not implausible. Neverthe- less, Phillips did show up at the client’s home on June 8, and neither Cooper nor anyone else from the Respondent, con- firmed in writing, that Phillips was retiring or quitting his em- ployment. This is not to say that the Respondent had to do so; only that in evaluating credibility, it seems to me that it would have been a simple matter for the Respondent to send a letter to Phillips either indicating that it meant to offer him assignments or that it understood that he no longer wished to work for them. I am going credit the testimony of Phillips and conclude that he was ready, willing and able to work after June 8, and that the Respondent failed to offer him either his old assignment or any other assignments. Melania Navarro, prior to the strike, had a regular assign- ment and on June 3 or 4 told the son of her client that she was going to participate in the strike on June 7. After initially par- ticipating in the strike, Navarro appeared at the client’s home on the afternoon of June 7. Navarro testified that while there, she had a conversation with a coordinator through a Spanish translator who told her that she was irresponsible because she went on strike and that she was fired. Notwithstanding that testimony, I doubt very much that Navarro was told that she was fired, albeit she may have misconstrued the remarks. Given the other testimony and the overall pattern, I think that it is more probable that Navarro was simply told that she was being replaced by a substitute. In any event, the evidence shows that instead of accepting a replacement, the client son hired Navarro directly and then on or about June 24, transferred the client to another agency that hired Navarro to take care of her. The evidence does not show that the Respondent ever offered to reinstate or reassign Navarro. Although the Respondent asserts that Navarro voluntarily quit, I don’t think that the facts warrant that conclusion. While I doubt that Navarro was told that she was fired, the fact is that the Respondent intended to replace her with another aide. As- suming, as I do that the Respondent had a legal obligation to reinstate strikers to their former assignments when they offered to return to work, its failure to do so and Navarro’s decision to accept other employment so that she could stay with the client would be tantamount to a constructive discharge. Of course, I note that her decision to accept other employment would obvi- ously affect the amount of backpay (if any) owed to her, al- though not affecting the Respondent’s obligation to at least offer her reinstatement to an equivalent position. The final person in dispute is Crecencia Miller who, prior to the strike, had two regular assignments. She participated in the strike on June 7, and later in the day she went to one of her client’s home where she told the client and the replacement aide that she would be resuming work on June 8. Miller indeed arrived at the client’s home on the following day and refused to leave when she was notified by the Respondent that she no longer was assigned to the client. The Respondent contends that unlike the other aides, it did discharge Miller and did so for cause. It asserts that prior to the strike, the Visiting Nurse Association of Brooklyn (VNAB), notified the Respondent that the client’s family had complained about Miller and that it wanted Miller removed from the client. The Respondent asserts that it decided to reassign Miller from the client in question, not because of the strike but because of the request made by VNAB. It also asserts that when Miller refused to leave the client’s home and effectively locked out the replacement it decided to discharge her. In a letter dated July 5, 2004, the Respondent wrote to Miller as follows: On Friday, June 4, VNAB requested that you be re- moved from your case because of patient and patient fam- ily complaints. We attempted to contact you during the weekend but you did not respond. SPECIAL TOUCH HOME CARE SERVICES 765 Unlike some aides who were no call/no show for their cases on June 7th, you were not scheduled by us to work that day, as we had assigned another aide to this case due to patient complaints. The assigned aide came to work at the start of the shift that day and was caring for the patient when you arrived at the patient’s home several hours late. Your coordinator was informed that you were at the pa- tient’s home and instructed you to leave so that the other aide . . . could continue with her work. Not only did you refuse to leave but you refused to answer the phone to speak o [sic] the coordinator after the initial call. At that moment in time, you were eligible to continue working for Special Touch but not for the patient who had complained about you. However, you refused to leave the home of the patient . . . . This misconduct . . . continued on June 8th and June 9th as well. . . . Your continual refusal to leave, after sev- eral requests and your refusal to follow the instructions of your supervisors led to termination from Special Touch . . . . In response to the Respondent’s claim, the General Counsel produced Maria Jimenez, the client’s daughter who testified that neither she nor her father ever complained about Miller to the VNAB. When the Respondent called VNAB’s director of human re- sources (who did not confirm that VNAB had requested the Respondent to remove Miller from the client), she testified that she had searched VNAB’s records and could only find a file note which related to the Respondent’s decision to discharge Miller despite the client’s desire to keep her. This note which is General Counsel’s Exhibit 11 states: Informed by Glenda Pascal, RN, that she received ATC from director of the Vendor agency informing her that Crecencia Miller was dismissed from that agency yesterday, 6/8/04. However she reportedly returned to client’s home today and repeated calls to home have not been answered. Ms. Pascal called Maria Jimenez, client’s daughter, and this CM spoke jointly with her to Ms. Jimenez, informing her that Ms[.] Miller is no longer employed by the vendor agency and there- fore, cannot continue to provide service to client. Ms[.] Jimenez stated that her father wants to keep worker and that she hasn’t had any problems with the worker. Ms. Jimenez was instructed to contact worker and instruct her to leave cli- ent’s home to avoid getting authorities involved and she reluc- tantly agreed to do so. She also requested a change of vendor by claiming misunderstanding with same on prior occasions. In my opinion, the evidence given by the client’s daughter and the representative of the VNAB tends to negate the Re- spondent’s position and supports the General Counsel’s allega- tion. Inasmuch as I conclude that the Respondent has not dem- onstrated that it had agreed with Miller’s replacement that she would be a permanent replacement, the Respondent’s failure to reinstate Miller to her former assignment when she effectively notified that she was going to resume work on the morning of June 8, constitutes a violation of the Act. Therefore, I also conclude that Miller’s subsequent discharge, even if prompted by her refusal to leave the client’s premises on June 8 and 9 would also violate Section 8(a)(1) and (3) of the Act. The General Counsel produced several employee witnesses who credibly testified that on a number of occasions before the August 2004 election, they were questioned about their contacts with the Union or if they signed union cards. This was testified to by employees Miriam Perez and Soila Peguero and although not particularly serious, I find that these interrogations violated Section 8(a)(1) of the Act. (I am not going to rely on the testi- mony of Basilia Martinez who related a conversation with a person who was not shown to be an agent, notwithstanding that this person was identified as an assistant to a supervisor.) Peguero testified that a coordinator, during the week preced- ing the strike, told her that the strikers would lose their jobs. She also testified that after receiving the election material in the mail, a coordinator told her that the Company would close if the Union won the election. Although I have no reason to discredit Peguero, I think that it is more probable that she was told that if she went on a strike, she could be replaced, a statement which although legal, can easily be misconstrued as a threat of discharge. And as Peguero was the only person who testified about an alleged threat to close, I am not persuaded that this uncorroborated evidence is sufficient to conclude that the Respondent violated the Act in this regard. (Nor do I think that it would add any- thing to the other violations already found.) CONCLUSIONS OF LAW 1. By failing and refusing to reinstate economic strikers upon their unconditional offer to return to work, the Respon- dent has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. 2. By discharging, constructively discharging, or changing the hours or terms of employment of employees because they engaged in a strike, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. 3. By interrogating employees about their union activities, the Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) of the Act. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(2), (6), and (7) of the Act. REMEDY Having found that the Respondent has engaged in certain un- fair labor practices, I find that it must be ordered to cease and desist and to take certain affirmative action designed to effectu- ate the policies of the Act. As the Respondent illegally refused to reinstate at least some of the strikers, or offer them their prestrike assignments, it must offer them reinstatement to their former assignments or if those assignments are no longer available to substantially equivalent assignments and make them whole for any loss of earnings and other benefits, computed on a quarterly basis from the date of such refusal less any net interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 766 As noted above, most of the strikers involved in the present case offered to return to work on June 8, 2004. To the extent that they were not reinstated on that date, the backpay for them would run from June 8, 2004. This, however, would not be the case for Altagracia Matos and Solia Peguero who offered to return to work on June 10 and whose backpay periods would start from that date. To the extent that some of these strikers were reinstated, but not to their former assignments, backpay would be the differ- ence, on a quarterly basis, between their earnings after June 8 and their earnings before June 7. As to those employees such as Crecencia Miller and Petra Ortiz who left with their clients and moved to other agencies, the net backpay for them would have to take into account the fact that they obtained interim employment almost immedi- ately. Nevertheless, as they are construed by me to have been constructively discharged, this would not vitiate the Respon- dent’s obligation to at least offer them reinstatement to substan- tially equivalent employment. [Recommended Order omitted from publication.]