Food & Commercial Workers Local 1357

FOOD & COMMERCIAL WORKERS LOCAL 1357 299 United Food and Commercial Workers International Union, Local 1357, and Elizabeth Murphy. Case 4-CA-12427 14 December 1984 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS • ZIMMERMAN AND HUNTER On 27 October 1983 Administrative Law Judge Marion C. Ladwig issued the attached decision. The Respondent and the General Counsel filed ex- ceptions and supporting briefs. The National Labor Relations Board has delegat- ed 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,2 and conclusions as restated below, and to adopt the recommended Order as modified. In adopting the judge's finding that the Respond- ent Union reprimanded Murphy, required her to take a psychiatric examination, and ultimately dis- charged her in reprisal for her activity in support of a May 1981 strike against the Respondent, we note the ' prominent and outspoken role that Murphy played during that strike. A shop steward for the Respondent's office employees, Murphy was a leader of the strike and conducted the picket line in front of the Respondent's offices: She was also quoted in the local newspaper accusing the Respondent Union's president, Wendell Young, of The Respondent excepts to the exclton of a hospital record It sought to admit as evidence that Murphy sought 'medical treatment on 10 July 1981 for intoxication The Respondent contends that this record is relevant to the charge that It unlawfully required Murphy on 4 August 1981 to undergo a psychiatric evaluation We find that the proffered evi- dence is irrelevant and that the Respondent was not prejudiced by its ex- clusion The issue is not the fact of Murphy's hospital visit but the Re- spondent's motivation in requiring the psychiatric evaluation On this Issue the Respondent was not precluded from presenting evidence The judge permitted the Respondent's president Young to testify that he had heard of Murphy's hospital visit before 4 August and that it was a moti- vating factor in the decision to require her to take the psychiatric exami- nation 2 The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance 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 Or 1951) We have carefully examined the record and find no basis for reversing the findings We have further considered the Respondent's contention that the judge has evidenced bias or at least the appearance of bias in this proceeding We have carefully considered the decision and record and find these charges unsupported and without merit The judge found it unnecessary to rule whether the Respondent's ac- tions against Murphy also violated Sec 8(a)(3) of the Act The General Counsel contends that the judge's findings are clearly sufficient to con- clude that the Respondent violated that section We agree and find that the Respondent's actions against Murphy discouraged union activity in violation of Sec 8(a)(3) of the Act See Radio Officers v NLRB, 347 1.7 S 17 (1954) being a hypocrite for not meeting the employees' contract demands. Additionally, the judge credited Murphy's testimony that after the strike, the Re- spondent's secretary-treasurer told her that Presi- dent Young "said he was going to make an exam- ple of you, that nobody would ever strike against hirn again." Based on these findings, We agree with the judge's conclusion that the Respondent's subse- quent actions against Murphy were in retaliation for her protected strike activity in violation of Sec- tion 8(a)(1) of the Act.3 CONCLUSIONS OF LAW 1. By discharging Elizabeth Murphy on 14 July 1981 for engaging in protected concerted strike ac- tivity, the Respondent engaged in an unfair labor practice affecting commerce within the meaning of Section 8(a)(1) and (3) of the'Act. 2. By issuing , Murphy a warning letter in reprisal for her engaging in protected concerted strike ac- tivity, the Respondent violated Seation 8(a)(1) . and (3) of the Act. 3. By threatening Murphy with reprisals for en- gaging in protected concerted strike activity, the Respondent violated Section 8(a)(1) of the Act. 4. By requiring Murphy to undergo a psychiatric and psychological examination as a condition of 3 The judge found that the Respondent's actions against Murphy also violated Sec 8(a)(I) ihsofar as they were also in reprisal for Murphy's protest to Young after the strike was settled over an article he had writ- ten concerning the strike The judge found that Murphy's protest con- cerned union business and was therefore protected concerted activity Chair-man - Dotson and -Member Hunter do not adopt this- finding for the following reasons Chairman Dotson would reverse the judge's find- ing In the Chairman's view, because Murphy sought only the retraction of the article and not any change in terms and conditions of employment, her protest over the article -wai not protected activity See Phase Inc. 263 NLRB 1168,-1170.(1982), Champion Parts Rebuilders, 260 NLRB 731 fn 3 (1982) Member Hunter finds it unnecessary to pass on whether Murphy's protest over Young's article was protected concerted activity Insofar as the judge found that the Respondent's defense that Murphy was insubordinate and threatened and hinniliated Young during their dis- cussion was a fabrication, Member Hunter would find that it was solely Murphy's protected strike activity which motivated the Respondent to reprimand and ultimately discharge her Thus, in Member Hunter's view, the Respondent's reliance on Murphy's protest as justification for her dis- charge was, like Murphy's . refusal to take a psychiatric examination, simply another pretext for discharging her in retaliation for her protected strike activity Accordingly, the judge's Conclusions of Law and recommended Order are amended to reflect the Chairman's and Member Hunter's findings that the Respondent's actions against Murphy were due solely to her protect- ed strike activity The judge also stated in dictum that, even if Murphy had threatened during their discussion to tell Young's wife that he was having affairs with two of the female office employees, this threat "would not have been so opprobrius to be unprotected " -Ch-airman Dotson does not adopt this dictum In the- Chairman's view, a' threat to disclose private sexual affairs, in the circumstances here, exceeds the bounds of protected con- duct Cf Bell Federal Savings di Loan Assn , 214 NLRB 75 (1974) (dis- closing employer's' private telephone calls unprotected) In view of the judge's finding that Murphy -did not in fact make such a threat. Member Hunter finds It unnecessary to pass on the judge's dictum Member Zimmerman agrees with the judge's analysis of Murphy's ac- tions concerning Young's article and adopts his findings in all respects 273 NLRB No. 44 300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employment to provide a pretext to discharge her, the Respondent violated Section 8(a)(1) and (3) of the Act. 5. The Respondent's aforesaid actions are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. 6. The Respondent did not make Murphy's working conditions more onerous in reprisal for her protected concerted strike activity. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, United Food and Commercial Workers International Union, Local 1357, Philadelphia, Pennsylvania, its officers, agents, and representa- tives, shall take thè action set forth in the Order as modified. 1. Substitute in paragraph 1(a) the words "pro- tected concerted strike activity" for the words "protected concerted activity." 2. Substitute in paragraph 1(b) the words "pro- tected concerted strike activity" for the Words "protected concerted activity." 3. Substitute the attached notice for that of the administrative law judge. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Goveimment The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT discharge or discipline any of our employees for engaging in protected concerted strike activity. WE WILL NOT issue any employee a warning letter in reprisal for such activity, WE WILL NOT threaten an employee with repris- als for engaging in this activity. - WE WILL NOT require any employee to take a psychiatric or psychological examination to pro- vide a pretext for discharging the employee. WE WILL NOT in any like or related manner re- strain or coerce you in the exercise of the 'rights guaranteed you by Section 7 of the Act. WE WILL offer Elizabeth Murphy immediate and full reinstatement to her former job or, if that job no longer exists, to a substantially equivalent posi- tion, without prejudice to her seniority or any other rights or privileges previously enjoyed . and WE WILL make her whole for any loss of earnings and other benefits resulting from her discharge, less any net interim earnings, plus interest. WE WILL notify her that we have removed from our files any reference to her discharge and warn- ing letter and that they will not be used against her in any way. UNITED FOOD AND COMMERCIAL WORKERS INTERNATIONAL UNION, LOCAL 1357 DECISION STATEMENT OF THE CASE MARION C. LADWIG, Administrative Law Judge. This case was tried in Philadelphia, Pennsylvania, September 16-17, 1982. The charge was filed September 24, 1981,1 and the complaint was issued February 10, 1982. An 'Sal shop steward, representing office employees of a large local union, led an 11-day strike against the Union, to the embarrassment of its president. In a heated meeting after the strike with the steward concerning strike publicity, as credited evidence shows, the union president ejected her from his office, seizing her arm, badly bruising it. After she filed a claim alleging injury from the assault, the Union suspended her, later required her to undergo a psychiatric evaluation as a condition of employment, and gave her a formal notice of termination when she refused. The primary issues are whether the Union, the Re- spondent, (a) unlawfully issued thé office employees' steward a warning letter, (b) threatened her with repris- als beCause of the strike, (c) made her working condi- tions more onerous as a reprisal, (d) required her to un- dergo a psychiatric and psychological examination as a condition of employment, to provide a pretext for dis- charging her, and (e) discharged her for engaging in pro- tected concerted activity during and after the strike, in violation of Section 8(a)(1) of the National Labor Rela- tions Act On the entire record, including my observation of the demeanor of the witnesses, and after consideration of the briefs filed by the General Counsel and the Union, I make the following FINDINGS OF FACT I. JURISDICTION Respondent Local 1357, an integral part of a multistate labor organization, is an unincorporated association in Philadelphia, Pennsylvania, where it annually receives over $100,000 in dues and fees, and remits over $25,000 to its International in Washington, D.C. The _Union admits and I find that it is an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. All dates are in 1981 unless otherwise indicated FOOD & COMMERCIAL WORKERS LOCAL 1357 301 II. ALLEGED UNFAIR LABOR PRACTICES A. Embarrassing Strike Against Union Elizabeth "Betty" Murphy, who led the office employ- ee strike against the Union from May 6 to 16, was a good employee and, as admitted by Union President Wendell Young, a "very good shop steward" (Tr. 367). She was the telephone operator and receptionist, and did volun- teer work as secretary and loan officer for the credit union. She was a member of the Seafarers International Union's negotiating committee, which failed to reach an agreement with the Union without a strike. As the SIU strike captain, she conducted the picket line in front of the union offices, causing considerable disruption in the operations when the officers and business agents honored the picket line. The strike was a personal embarrassment to President Young. A May 12 news story in the Philadelphia Daily News (G.C. Exh. 2), identifying Murphy as a picket cap- tain and former nun, quoted her as stating that the major issues in the strike were overtime and a cost-of-living clause and that her boss, Wendell Young, was a hypo- crite. "How can a man like him run around preaching about contracts and be so hypocritical?" President Young admittedly was "very upset" with the "completely one-sided" news article (Tr. 360). He also revealed his displeasure "over the fact that there was a strike altogether." He testified that the "local fellows could not control the situation. In other words, they lost control. In fact, I had to go into the negotiations at the end, and try to sell the package instead of the union offi- cial doing it That is how goofed up it was.". (Tr 375.) This was an obvious reference to the bargaining position of the SIU negotiating committee on which Steward Murphy served. Acknowledging his embarrassment from the adverse publicity, President Young responded to the news story the same day, stating in a letter to the Daily News that "In our opinion, the people on strike are trying to em- barrass us into a very unfair contract" (G.C. Exh. 3). It was this response, which was printed in full in the June issue of the Union's newspaper, the Dialogue, that was the subject of Steward Murphy's heated meeting with President Young on June 9 when, as Young admit- ted, she went to his office "to talk about union business" (Tr. 410). . B Assault Upon Shop Steward On June 9, 3 weeks after the office employee strike against the Union was settled, SIU Shop Steward Murphy saw in the Dialogue an article entitled, "The President Replies to Phila. Daily News," quoting Presi- dent Young's May 12 response to that newspaper's strike story. At 4:15 p.m., she went to Young's office to give him the SIU position on the lack of accuracy of a state- ment in his response about one of the strike issues (Tr. 74-75, 175). His statement was that "As a result of exten- sive days off and lost time due to these programs, over the past few years there has been an increasingly large amount of overtime needed to run the office" As Murphy credibly testified, she told him she would like to talk to him about the article, he asked what was the problem, she handed him the newspaper, and he started reading the article. "It is in reference to this over- time. You say that our girls are getting overtime because they missed so much time during the year, but the truth of the matter is they are filling in for the secretaries who are never at their desks . and then they have to do their work at nighttime." (Tr. 33-34.) She insisted on a retraction (Tr. 79). A heated argument ensued. (Murphy did not remember the full conversation ) Finally Young asked, "Are you telling me how to run his office? She said, "No, Mr. Young, but I think you should print the truth" When asked what then happened, she credibly testified (Tr. 34). A. Mr. Young said "Get out of my office. Get out." He got up from his chair and he came around. I don't think I moved Then he grabbed my arm and I pulled away. He grabbed me again, and he pulled me toward the door. He opened the door and he dropped my arm, and I left his office. He threw me out of his office. [Em- phasis added.] She returned to her desk "in terrible pain," spent 3 to 5 minutes closing (Tr. 77), clocked out at 4:32 p m. (R. Exh. 1), and met two awaiting friends, one of whom drove her car (Tr. 35). Her left arm "felt like it was out of its socket" (Tr. 96). She was holding it and was "teary eyed" (Tr 422). When asked what was wrong, she said, "He threw me out of his office." (Tr. 426) The next morning when she showed one of the two friends (em- ployee Sophia Cleary, the SIU shop steward for another group of the office employees) her "red and swollen" arm (Tr. 423), she explained, "He gripped my arm" (Tr 427) This was the day, June 10, when she came to work and found two of her pictures broken, as discussed below With Secretary-Treasurer Rosmines permission, she did little work that day and spent most of the time resting. At quitting time, Rosmini asked her if she was staying to do some credit union loans and, as she credi- bly testified, "I told him no, that I was having . . . a lot of pain .with my arm, and I was going right home." (Tr. 38-39.) I discredit - Rosmini's denial (Tr. 180) that Murphy complained about her arm at any time that day. (By his demeanor on the stand, he appeared more con- cerned about supporting the Union's cause on critical matters than giving an acc_urate account of what hap- pened.) Rosmini permitted Murphy to rest much of the time during the next 2 days, Thursday and Friday, June 11 and 12. About 2.45 p.m. Friday, when she saw President Young, she told him, "Look at what you did to my arm" He looked at it and said, "I know. I know. See your union." (Tr 44, 122) Before leaving early that day (with permission from , Secretary-Treasurer Rosmini to see a doctor about her arm (Tr 128)), she told Rosmini, "I just showed Mr. Young my arm and he said he knew he did it," to see her union. Rosmini asked, "Do you mean he admitted it?:' and she suggested that Rosmini 302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ask him. In his testimony, Rosmini admitted that he saw Murphy's arm, that it was "very black and blue" with "two large black and blue marks" and "four smaller marks on the other side of her arm;" that he told her "That doesn't look good . . That looks terrible;" that he told her to talk to Young, and that when she re- turned, she said she had • showed Young the black and blue marks and Young "admitted that he did it" -(Tr 188). I discredit Young's testimony that he merely told Murphy, "Come on, get out, go see your union" (Tr. 379). (Murphy impressed me most favorably by her de-. meanor on the stand as an honest, conscientious witness, but Young appeared to be less than candid.) That Friday afternoon, upon the suggestion of an at- torney, Murphy had four color photographs taken of her injured arm, graphically recording the condition of the arm as described by Rosmini. The Union took the- position at the beginning of the trial that Young "never laid a hand on her" (Tr. 20). After the photographs were intrOduced into evidence (G.C. Exh. 6), Secretary-Treasurer Rosmim testified that he had no information how Murphy's arm was injured and admitted having no reason to believe that the bruises were self-inflicted (Tr 277-278). Young continued to deny touching her. I 'reject as frivolous the suggestion in the Union's brief that there is "a reasonable probability that Ms. Murphy self-inflicted these bruises while rubbing her arm after leaving Mrs Young's office or at some other time, in some other way." In arguing that Young's grabbing her arm as Murphy described would not leave two large bruises on the front of the .arm, the Union ignores the credited testimony that Young gripped her arm twice. - After weighing all the evidence and discrediting Presi- dent -Young's denials, I find that Young injured SIU Steward Murphy's arm June 9 when ejecting her from his office. C. Destruction of Steward's Personal Property On Wednesday, June 10, Steward Murphy received another shock that added to the trauma of the assault of the afternoon before She arrived about 8:30 and office boy Thomas Spel- lane opened the door for- her. After clocking in at 8-32 (R. Exh. 1), she went to her desk and found the pictures of her mother and her friend, Sister- Gloria Keltz, lying on the floor with the frames broken She was "most upset" (Tr. 37) and "kind of in total shock" (Tr 98) upon seeing "the glass all over the floor" and' the broken pictures. She turned and walked out, and asked Spellane for Secretary-Treasurer Rosmini's telephone number Rosthini had already left home. As other employees arrived, Spellane opened the door and let them in The next employees -to arrive were Renee Kelly and Margaret O'Brien, followed by Sophia Cleary; who arrived about 8.35, and Kathy Barrett, who arrived a minute or so later (Tr. 420, 429-430) As Kelly and O'Brien entered the reception area, they noticed that the clock on the wall was also broken and Murphy's small Irish flag was burned. One of them com- mented, "Your flag is burned, too, Betty, and so is the clock" broken. (Tr. 38.) As Murphy credibly testified, "it was the pictures that were on my mind, my mother's pic- ture and Sister's picture"; "I didn't know the clock was broken . . . I didn't 'examine it: . I think part of [the flag] was burned I didn't examine it that well, because I was very upset about the- whole episode" (Tr. 101). She did notice that the wall clock had stopp- ed at 11 .p.m. (Tr. 38). When employees Cleary and Barrett came to the area, as Cleary credibly testified, "The first thing that I ob- served was the clock up on the wall stopped at 11:00. . And 1 turned to Kathy Barrett and said, 'It happened at nighttime.' She said, 'It would have had to" (Tr :421, 431) When Secretary-Treasurer Rosmini arrived about 9:05 or 9 . 10 a.m., he saw Murphy standing at her desk, crying. "She told me that someone had broken Sister Gloria's picture and her mother's picture." (Tr. 176.) He cleaned up the glass and told Murphy to get ,some tea and relax (Tr. 103). It was at quitting time that day (after Murphy told Rosmini she was having a lot of pain with her arm and was going right home) when Rosmini told her to stop in his office and, as discussed below, gave her a warning letter for "insubordination or belligerent behavior" and told her, in an apparently unguarded answer to a ques- tion, that President Young "said he was going to make an example of you, that nobody would ever strike against him again." The next day, Thursday, June 11, upon instructions from Young, Rosmini made a perfunctory investigation, taking two statements. (A third employee also gave a statement to Young's secretary, professing to report what the office boy had told him ) The statement that Rosmini took from office boy Spellane (R. Exh. 5) was obviously inaceurate. The statement claimed that "Spellane "went upstairs at 8 . 15 to make the coffee and the bell rang. Betty Murphy came in. Approximately 8.30 I went down to wait 'for the people to come in" Although Rosmini never accused Murphy of destroying her own property and never took a statement from her or any of the other employees who discovered the damage, the Union could argue from this purported timing that Murphy had 15 minutes to smash the pictures of her own mother and her nun friend, to set fire to the flag (ignoring the odor -from the smoke) and, after damaging the wall clock, to have the presence .of mind of somehow reaching the 7-foot- high clock on the wall (Tr. 283) and setting it forward or back several hours. (Except for President Young's dubi- ous suspicion—that the flag burning and destruction of property were "to throw the thing off," or distract atten- tion from Murphy's June 9 conduct in his office (Tr. 377)—nowhere in the evidence is there any suggestion of a motivation for her to damage the clock and destroy her own valued property.) Spellane's statement also asserted "In the meantime, I came in and she said, 'Look at all this.' There was glass on the floor and the clock said something on it. I took notice the clock was on the wall." (Emphasis added ) The timing was obviously wrong, because Murphy's timecard showed that she clocked in at 8.32 am.—not -15 minutes earlier. By the time of trial, the timing was FOOD & COMMERCIAL WORKERS LOCAL 1357 303 changed; Spellane testified that he went downstairs "around 8:30" and let Murphy in the front door (Tr. 308) (This corrected timing, however,' made it even more unlikely that Murphy would be setting -a fire at her desk, breaking pictures and scattering glass around, and breaking and resetting a clock in the few minutes before the other office employees arrived. As found above, Clearly arrived about ' 8:35—about 5 minutes after Murphy—and both Kelly and O'Brien arrived ahead of Cleary.) Also by the time of trial, Spellane had changed an- other part of his story. Although asserting in his written statement (which was witnessed by Secretary-Treasurer Rosmini) that the damaged clock- was on the wall, he claimed at . the trial that "The clock was on the floor" (Tr. 310). Rosmini also claimed that the clock was on the floor (Tr. 176). To the contrary, Murphy and Cleary both credibly , testified that the clock was on the wall when the damage was discovered (The Union contends in its brief "The clock sits seven feet off the floor on the wall of the reception area - She intentionally dam- aged her own property, for what reason we can never be sure, and apparently pulled the clock down off the wall and set it at 11.00 o'clock for obvious reasons) " find that Spellane and Rosmini fabricated the change in testi- mony to support the Union's cause,--placing the dam- aged clock in a more accessible place for Murphy 'to reset it. (Rosmini claimed, "I concluded that [between 8:30 and . 9 o'clock] the clock was moved forward [by Murphy] to indicate it was done the night before (Tr. 272-273), but testified he did not know how to change the time: "Move the hands, I guess" (Tr. 283). Because of (a) the obviously inaccurate timing of Mur- phy's arrival in Spellane's statement, (b) the lack of any plaUsible motivation for Murphy to destroy or damage her own and the Union's property, (c) the implausibility of Murphy's setting a fire at' the reception desk, destroy- ing valued property, and damaging and resetting a wall clock at the beginning of the workday as other employ- ees were arriving, and (d) the failure of the Union to question Murphy and other employees who discovered the damage, I deem it most unlikely' that the Union actu- ally believed two other assertions in Spellane's statement, that "the clock said 10 minutes of 8" and "nothing was disturbed" when he opened the building that morning. (At the trial, Spellane first admitted that he would have to turn his head "almost all around to see the clock" upon entering the front door, and indicated how far he would have to turn, but later indicated he would have to turn only about 90 degrees to the left (Tr. 313-315) He appeared to be less than candid.) Whether or not it was Spellane's own idea to include these assertions in the typed statement (witnessed by Rosmini and President Young's secretary, Janice Pint), I find that the Union falsely claimed that it believed the assertions. I find instead that President Young ordered the per- functoi y investigation to discover some pretext for dis- charging the SIU steward, as discussed below. I discredit Rosmini's claim that he planned "to meet with Ms. Murphy and to discuss the incident and the statements taken in the investigation with her," but that he never had the occasion (Tr. 227).. He later testified that "As far as we are concerned, we had all the information 'we needed -on the June 10th incident" (Tr. 242). Young, after testifying that he ordered the investigation, claimed that "without any evidence at this point ... I thought Betty did it herself" (Tr. 375). The evidence does not reveal who damaged the union and personal property. The damage was not done when the office was cleaned between 8 and 8:30 the evening before, and the night porter was not aware of anyone else being in the building between then and midnight, when he left the building (R. Exh. 4, Tr. 328). President Young testified: • "I thought Betty did it herself . . Because I know I did not do it. . . I know that it was not me And I know that I did not Instruct anybody to do some stupid childish thing like that . . . . I did not burn her flag, or instruct anybody to do it (Tr 375, 393- 394, 412.) Contrary to the Union's contention in its brief that the evidence is overwhelming "that Murphy" "committed the damage herself," I find both that she did not do the damage and that the Union did not in good faith believe that she did when discharging her D. Alleged Coercion Against Steward 1. Written warning and threat of reprisal At quitting time Wednesday, June 10, Secretary-Treas- urer Rosmini called Murphy to his office and gave her a warning letter signed by President Young (G.C. Exh. 4), notifying her that "any further display of insubordination or belligerent behavior . . . such as you exhibited in my office on June 9, 1981, will result in suspension and/or discharge." She first asked Rosmini what Young meant by "insubordination," and he replied that he did not know. Then, as she credibly testified (Tr 40-41), A I said "What seems to be Mr Young's prob- lem? Has he said anything to you?" And he said Mr. Young said he was going to make an example of you, that nobody would ever strike against him again. Rosmini did not specifically deny telling her this. He claimed that when she asked how she was insubordinate, he explained that she failed to follow Young's instruc- tions by not leaving his office and was "loud and boister- ous" (Tr. 180). The evidence is clear that President Young and Stew- ard Murphy had a heated argument June 9 in Young's office, and that she insisted on a retraction of his strike publicity statement that the office employees were get- ting overtime because they missed so much time during the year. As found above, she credibly testified that when he asked, "Are you telling me how to run his office?" she said, "No, Mr. Young, but I think you should print the truth." (That was when he ordered her out and pulled her arm, injuring ) The evidence is also clear that she was in the office longer than the 5 minutes she recalled and that she did not remember the full con- versation. I credit part of Young's testimony about what oc- curred He testified that Murphy stated she felt the pub- 304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lished letter "was against the understanding that we had after the strike [the amnesty clause attached to the agree- ment], that there would be no retaliation." He gave her a long explanation about why his strike publicity letter was printed in the Union's newspaper after the strike was set- tled "And she did not even listen. She just kept looking up in the air . . . staring at the ceiling." (Tr. 359) (This testimony tends to account for her failure to recall part of the conversation.) I find, however, that his denials that he even touched her and his claim that she referred to his morality in the June 9 meeting were fabricated. According to the Union's brief, she suggested "that the Union President was promiscuously involved with two other women em- ployed by respondent," by making a remark that Young interpreted "as a suggestion that he was having sexual relations with these female employees," and that she made another remark that Young interpreted "as a threat by Ms. Murphy to call his wife and tell her that he was having an illicit affair with Pat Scarrelli and Jackie McPeak." The brief argues that this and other conduct were "so provocative and improper as to clearly warrant her dismissal" Yet the warning letter the next day men- tioned only her purported "insubordination or belligerent behavior." Even if Secretary-Treasurer Rosmini's testi- mony were credited that on June 10, Rosmini gave Murphy an explanation of the warning letter, he merely claimed that he told her she "failed to follow Instructions by not leaving [Young's] office, and that she was acting loud and boisterous (Tr. 180, emphasis added). (The Union's brief misstates the record in contending that Rosmini referred to her loud and "abusive" conduct toward Young.) Although some of Young's testimony was corroborated by his secretary, Janice Pintt (who wit- nessed office boy Spellane's obviously inaccurate state- ment about the June 10 property destruction), she did not impress me as being a credible witness , Moreover, even assuming that in their June 9 meeting on union business, Steward Murphy made the statements that President Young claimed, I find that the statements would not have been so opprobrious to be unprotected According to him, she stated that "the only people that you listen to are Pat Scarrelli and Jackie McPeak . . . You hate me because I am Irish . . . . Is your wife going to be home tonight?" (Tr 361-362.) (Although Murphy could not remember the entire conversation, she positively and credibly denied making these statements (Tr. 85-86).) I note that in falsely denying that he even touched Murphy (contrary to her credited testimony that he gripped her arm twice), he gave testimony that under- mined his claim that she was insubordinate by failing to follow instructions to leave the office. He testified (Tr. 362): , I said, ". . . Come on, get out of the office, go see your union. We are finished with this conveisa- tion." I opened the door, and I asked her to leave And she got up and left. I did not touch her. And that whole thing is absolutely , ludicrous, those pictures [of her bruised arm], absolutely ludicrous - The Union contends in its brief that "Even if this con- versation is ,deemed ,to have involved protected activity, Ms. Murphy's conduct during that meeting far exceeded any reasonable bounds of propriety. When she did not succeed in her demand for a retraction, she berated and humiliated Mr Young, suggested that he had a sexual li- aison with two other employees, and made a statement that was Interpreted clearly as a threat to call his wife and relay that false accusation. Under these circum- stances, Mr. Young was justified in issuing the letter of reprimand . . Indeed, he would have been justified, under the circumstances, in meting out a much harsher form of discipline." The union. brief does not reveal, if these were true facts, why this defense was reserved for the trial and not even alluded to at the time. I find that Secretary-Treasurer Rosmtni's June 10 statement to Steward Murphy that President Young "said he was going to make an example of you, that nobody would ever strike against him again" was a threat of reprisals for engaging in the protected concert- ed strike 'activity and violated Section 8(a)(1) of the Act. In view of this finding and the above finding that the. defense that Steward Murphy "berated and humiliated" the union president was fabricated, I reject the argument in 'the Union's brief that the June 10 warning letter "ob- viously had nothing whatsoever to do with the strike" and find that it was 'a reprisal for her leading the strike against the Union and for her engaging in protected con- certed activity in the discussion of union business, with President Young in the June 9 meeting, in violation of Section 8(a)(1). , 7 2Z.More. onerous working conditions On June:1 1, the day after Steward Murphy received the warning:.letter, Organizing Director Hugo McKissic wrote an interoffice communication to secretary Renee Kelly, informing her that she was not to relieve anyone on the switchboard or in any other area "unless you get my personal approval." On June 12 Murphy, as shop steward, received a copy of the communication. The complaint alleges that the Union, through McKis- sic, made telephone operator Murphy's working condi- tions More onerous "by refusing to permit other employ- ees temporarily to relieve her from her duties" McKissic, however, credibly testified that neither President Young nor Secretary-Treasurer Rosmini was aware that he was sending the communication and that it had no relationship to the June 9 and 10 incidents. I therefore agree with the Union that the communication was not issued in retaliation for Murphy's union activities and that the timing was purely coincidental. Accordingly, I find that the allegation must be dis- missed. E Discharge of Office Employees' Steward 1. Her claims for compensation On Friday, June 12, Steward Murphy began taking treatments for her arm On June 15, with Secretary- Treasurer Rosmini's permission, she began taking sick leave (without pay) She took treatments about every FOOD & COMMERCIAL WORKERS LOCAL 1357 305 other day (Tr.- 46), and she was taking "a lot of Anacin" for the pain (Tr. 288) Toward the end of June, she began having stomach and other problems She finally received a doctor's release ,dated July 20, stating that she was permitted to return to work July 27 on a full-time basis. Rosmini ,admitted that he had a conversation with her at least-once a week (Tr. 234). On June 22 one of. Murphy's friends, Sister Gloria, handed Rosmini Murphy's workmen's compensation claim form that. stated that Murphy was injured while meeting with President Young in his office (Tr. 135, 192). Murphy overheard Rosmini state, "I can't sign these. Wendell [Young] would never agree with it" (Tr. 133). According to Rosmini, he said "we" did not agree that Murphy was injured in Young's office, but said he told Sister Gloria that he would mail the claim to the carrier if the doctor filled out his part (Tr. 192) He ad- mittedly advised that Murphy was entitled to file a claim on the health and welfare fund, which provides compen- sation for "two-thirds of pay" (Tr. 196). On June 26, Rosmini sent Murphy some health and welfare fund forms. She submitted a disability claim that same day for "Personal injury sustained June while on the job in the President's Office" (G.C. Exh. 14) On July 2 the claims supervisor, with a copy to President Young, rejected the claim because it was work related (G.C. Exh. 13). About August 18 (Tr. 195, 232), Steward Murphy again submitted a workmen's compensation claim form, which Rosmini this time sent in On the form Murphy made the following assertions (G.0 Exh. 15): During conversation with [Pres.] Young, he became angry and gripped me by the arm, physically eject- ing me from his office. Arm pulled out of socket affecting chest cavity. There has been great bitterness against me as shop steward in Seafarers International Union since a strike was launched against Mr. Young's Local last May 9, 1981 when our contract expired The media attention it gained was a great embarrassment to him and our conversation that day was concerning a newspaper article he sent to the Daily News and printed in the Dialog. - Thus, in all three claims—her June 22 workmen's com- pensation claim (which Secretary-Treasurer Rosmini re- fused to send in), her June 26 disability claim, and her August 18 workmen's compensation claim (which she submitted shortly before her August 21 formal notice of termination)—she asserted that her injury was sustained on the job, in President Young's office; ,Young was most concerned about this assertion (which I find to be truth). He testified (Tr. 385) A. One of the problems that we were having is what Betty was going to put on that form. . . we told . . . the [SIU] . . if she put on the form that I touched her . I was going to sue her, absolutely sue her. And I let that be known. And thatis why we did not get any forms for a while. . . .- she knew that I was waiting for that report to come in. And I was immediately going to go down and sue her for that incident. But we did not get a " form. I called down to health and welfare. . . and said all I want to do is review what she puts down for her sickness. He was referring to the disability claim that she submit- ted June 26, asserting "Personal injury sustained while on the job in the President's office." He did not sue her but, according to the General Counsel, he in effect dis- charged her July 14 when he refused to let her work (al- though the formal notice of termination was not given her until August 21). 2. Her suspensions and notice of termination On Monday, July 13, when Steward Murphy made her usual Monday morning telephone call to Secretary- Treasurer Rosmini to report her continued doctor's treat- ment, Rosmini told her (as she credibly testified), "Mr. Young said as soon as you are better—as soon as you get better, Betty, that you are fired" (Tr. 49, 139-140). Ac- cording to Rosmini, he told her "she was going to be suspended" (Tr. 205). The next day, July 14, in an apparent effort to retain her job, she reported to work despite her feeling "really sick" (Tr. 144) She clocked in, opened the switchboard, and started to work About 9:15, President Young called in, recognized her voice, and told her, "Get off the board, Betty, and do what you are supposed to be doing" (Tr. 49). She left the board, went upstairs, and waited for Rosmini. When asked "what was I supposed to be doing," Rosmini "shook his shoulders" and later told her, "Get yourself well, Betty, get strong, and get a release from the doctor" (Tr. 50). On July 27, Murphy 'returned to work with a doctor's release that read: "Ms. Betty Murphy is permitted to return to work on July 27-, 1981, on a full-time basis. Ms. Murphy will be treated at our facilities during our evening hours" (G C. Exh 7) Rosmini directed her not to clock in and, after conferring with President Young (Tr. 211), gave her a letter stating "please be advised that you are being held out of service until we complete the appropriate investigation. Your recent absences and the facts and allegations surrounding them have raised certain serious questions which indicate that there may be reason requiring further action on our part" (G.C. Exh. 8). He admittedly refused to give her any explana- tion (Tr. 212). On August 4, Rosmini sent Murphy a letter, advising her of an appointment on August 12 with a psychiatrist and a consulting psychologist. The letter explained (G.0 Exh 9) • A thorough consideration of all of the facts has convinced us that in order to make a responsible and informed decision [concerning her future em- ployment], it will be necessary for us to receive a full psychiatric and psychological evaluation This step is necessary for us to be advised whether there 306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD are mental health problems which would dictate that the resolution of your employment question be dealt with in that sphere. On August 6, Rosmini wrote Murphy another letter, stating that the appointment was postponed until August 19. She contacted her-union, which advised her to com- pletely ignore the letters (Tr 153) Instead, she tele- phoned the psychiatrist and told him she did not want to waste his time or the Local's money. Then on August 11, Rosmini wrote Murphy another letter, advising her that the appointment was not for treatment. "It is solely for the purpose of guiding us in determining - what the appropriate action should be in response to your past conduct You are obliged to keep the appointment." The letter warned, "A failure to do so will be dealt with as a deliberate and willful disregard of orders and intentional insubordination" (G C. Exh. 11) The SIU again advised their steward to ignore the letters, and she did, missing the appointment. About August 18, as indicated above, Murphy submit- ted her workmen's compensation claim to the Union, as- serting that President Young "became angry and gripped me by the arm, physically ejecting me from his office." On August 21, Rosmini sent her the formal notice of ter- mination, explaining (G.0 Exh. 12) You were specifically instructed to appear for an examination on Wednesday, August 19, 1981. You were warned that a failure to appear would result in disciplinary .action. Despite this warning, you did not appear and this offense coupled to all attendant circumstances presents just cause for discharge 3. Shifting defenses Secretary-Treasurer Rosmini, Steward Murphy's im- mediate supervisor who signed her August 21 termina- tion notice, positively testified at the trial that there were three and only three reasons for her discharge. He listed them as "insubordination" (failure to appear for the psy- chiatric examination), her "conduct of June . 10th" (burn- ing the flag and destroying other property), and "making slanderous statements about Mr Young" (claiming, and stating on her August 18 workmen's compensation form, that the union president on June 9 injured her arm) (Tr 262-264.) President Young, the Union's chief executive officer for 20 years, stated that he made the final decision to dis- charge Murphy (Tr. 353). He testified that his "initial re- action was to dismiss her because of that [June 10 flag- burning] incident" (Tr. 413), that he "spent almost literal- ly the gosh damn summer, at least an hour or so a day, discussing this damn Betty Murphy situation" (Tr. 394), that the major reasons they had decided to hold her out of service were the June 10 flag burning and the accusa- tion that he had injured her arm (Tr. 405), and that when Murphy did not make the psychiatric appointment, "that was the final straw that broke the camel's back We noti- fied her that she was dismissed" (Tr. 396) Thus at the trial, Rosmini claimed that the accusation against Young, the June 10 incident, and the refusal of psychiatric examination were the sole reasons, and Young claimed they were the primary reasons, for Mur- phy's discharge. Young specifically denied that her dis- charge had "anything at all to do with her functioning as shop steward" (Tr. 354). Both Rosmini and Young claimed that the decision to discharge her was not made until after she refused the psychiatric examination, but admitted that they had previously decided not to let her return to work until their "investigation" was completed. In light of the evidence at the trial, however, these three purported reasons for the discharge were obviously suspect One claim was that the Union was discharging the office employee shop steward for asserting that the union president injured her arm when ejecting her from his office, despite the evidence that her assertion was true. Another claim was that the Union believed, after a perfunctory investigation, that the steward herself burned her own flag and smashed two of her own valued pictures at starting time, despite the evidence in- dicating that the Union did not in good faith have that belief. The third claim was that the Union discharged the SIU steward for insubordination when she refused to obey a demeaning order to take a psychiatric examina- tion for a possible mental problem—which the Union contended it suspected she had primarily because she as- serted (truthfully, as found above) that the union presi- dent injured her arm and because she destroyed her own property (something, as found, she did not do). In its brief, the Union listed other purported "major factors" involved in the Union's ultimate decision to ter- minate Murphy's employment (as well as its decision to seek a psychiatric evaluation). The first two were pur- ported reasons that neither Rosmini nor Young claimed as a basis for the discharge They were Murphy's "sug- gesting that the Union President was promiscuously in- volved with two other women employed by respondent" (found above to be a fabrication) and her "threatening to call the Union President's wife to report on the alleged illicit affairs if the Union President did not accede to Ms. Murphy's demands for a retraction of a newspaper arti- cle" (also found to be a fabrication). Some of the other purported "major factors," contend- ed in' the brief but not claimed by either Rosmini or Young to be a basis for the discharge, were "blaming the mischief [destroying property June 10]- on unspecified 'others' in the Union office" (something she did not do), "reporting to work on three consecutive days [June 10- 12] and spending most of her time in the office lying on a couch in the ladies' lounge" (failing to point out that she did so with Rosmini's permission); and "reporting off sick for a period of six weeks ind offering contradictory reasons concerning the nature of her alleged illness" (a clear pretext). I find that these shifting defenses—particularly the first two purported "major factors"—detract from rather than bolster the Union's defense that it was lawfully motivat- ed. 4. Concluding findings on discharge After weighing all the evidence-, I find that this is a bi- zarre case in which a local union president, seeking a mechanism to discharge a suspended office employee FOOD & COMMERCIAL WORKERS LOCAL 1357 307 shop steward for her protected concerted activity, or- dered her to submit to a psychiatric evaluation as a con- dition of employment and discharged her when she re- fused to comply with the demeaning order. • In its brief, the Union contends that it could have dis- charged SIU Shop Steward Murphy "immediately after the June 10 property destruction incident" and could have discharged her "following the false accusation against President Young," but that "she was a long-term employee, a virtual fixture in -the office," and although she had engaged in this "serious misconduct," the Union decided it "should first attempt to determine whether her problem was due to emotional or mental distress" by re- quiring her to take the psychiatric evaluation. To the contrary, as found, Murphy did not engage in the June 10 property destruction, the Union did not have a good-faith belief that she did and, in fact, ordered the perfunctory investigation to discover some pretext for discharging the SIU steward who had embarrassed Presi- dent Young by her protected concerted strike activity. Also, as found, Murphy's accusation against Young was true; he had injured her arm in the June 9 meeting when she, as shop steward, was engaging in protected concert- ed activity. I agree with the General Counsel that before July 14, when President Young suspended Murphy from work by ordering her off the switchboard, the Union had already decided to terminate her "and was only attempting by further investigation and delay to find some basis or mechanism—the psychiatric evaluation—to achieve this end." I therefore reject the Union's contention that "Not one action taken against [SIU Shop Steward Murphy] had any relationship to her functioning as shop steward or her participating in the strike," and its contention that even if President Young acted in "retaliation for her strike activities . . . a discharge would have been proper, and occurred, even absent such a hostile motivation." I find that the Union unlawfully discharged her for engag- ing in protected concerted activity during and after the strike in violation of Section 8(a)(1) of the Act and that, as alleged in the complaint, she was in fact discharged July 14, after which the Union refused to permit her to work. (I find it unnecessary to rule whether the dis- charge also violated Section 8(a)(3).) I also find that the Union required Shop Steward Murphy to undergo a psychiatric and psychological ex- amination August 19 as a condition of employment, to provide a pretext to discharge her for engaging in pro- tected concerted activity, further violating Section 8(a)(1). CONCLUSIONS OF LAW 1. By discharging Elizabeth Murphy July 14, 1981, for engaging in protected concerted activity, the Union en- gaged in an unfair labor practice affecting commerce within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act 2. By issuing SIU Shop Steward Murphy a warning letter in reprisal for her engaging in protected concerted activity, the Union violated Section 8(a)(1). 3. By threatening the shop steward with reprisals for engaging in protected concerted strike activity, the Union violated Section 8(a)(1). 4. By requiring the shop steward to undergo a psychi- atric and psychological examination as a condition of employment, to provide a pretext to discharge the shop steward, the Union further violated Section 8(a)(1) 5. The Union did not make the shop steward's work- ing conditions more onerous in reprisal for her protected concerted activity. s , • REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, I find it necessary to order it to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. The Respondent having unlawfully discharged an em- ployee, it must offer her reinstatement and make her whole for any loss of earnings and other benefits, com- puted on a quarterly basis from date of discharge to date of proper offer of reinstatement, less any net interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as computed in Florida Steel Corp., 231 NLRB 651 (1977). On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- _ ed 2 ORDER The Respondent, United Food and Commercial Work- ers International Union, Local 1357, Philadelphia, Penn- sylvania, its officers, agents, and representatives, shall 1. Cease and desist from (a) Discharging or disciplining any employee for en- gaging in protected concerted activity. (b) Issuing any employee a warning letter in reprisal for engaging in protected concerted activity. (c) Threatening any employee with reprisals for engag- ing in protected concerted strike activity. (d) Requiring any employee to undergo a psychiatric or psychological examination as a condition of employ- ment, to provide a pretext for discharging the employee. (e) 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) Offer Elizabeth Murphy immediate and full rein- statement to her former job or, if that job no longer exists, to a substantially equivalent position, without prej- udice to her seniority or any other rights or privileges previously enjoyed, and make her whole for any loss of earnings and other benefits suffered as a result of her dis- charge, in the manner set forth in the remedy section of the decision 2 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses '308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Remove from its files any reference to the unlawful discharge and to the June 10, 1981 warning letter and notify the employee in writing that this has been done and that the discharge and warning letter will not be used against her in any way. (c) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (d) Post at its union offices in Philadelphia, Pennsylva- nia, copies of the attached notice marked "Appendix."3 3 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 Judgment Copies of the notice, on forms provided by the Regional Director for Region 4, after being signed by the Re- spondent's authorized representative, 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 arecustomarily posted. Reasonable steps shall be taken by the Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days _ from the date of this Order what steps the Re- spondent has taken to comply. IT IS FURTHER ORDERED that the complaint is dis- missed insofar as it alleges violations of the Act not spe- cifically found. of the United States Court of Appeals Enforcing an Order of the Nation- al Labor Relations Board"