Preterm, Inc.

PRETERM, INC. 683 Preterm, Inc. and District 1199, Mass. National Union of Hospital and Health Care Employees, a division of RWDSU/AFL-CIO. Cases 1-CA- 12325 and .1-CA-12326 14 December 1984 SUPPLEMENTAL DECISION-AND ORDER . BY CHAIRMAN DOTSON AND MEMBERS ZIMMERMAN AND HUNTER On 23 -July 1982 Administrative Law Judge Jerry B. Stone issued the attached supplemental de- cision. The. Respondent filed exceptions and 'a sup- porting brief, and the. General Counsel and the Charging Party also filed exceptions and support- ing briefs. The National Labor Relations Board has delegat- ed- its authority in this proceeding to a three- member panel. The Board has considered the supplemental deci- sion and the record in light of the exceptions. and briefs and has decided to affirm the judge's rulings, findings,' and conclusions 2, and to adopt the rec- ommended Order as modified. 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 Member Hunter would not adopt the judge's finding that employee Harriet Ruffen was working a 40-hour week at the time of the Union's 19 October 1976 strike and was not reinstated to an equivalent position in June 1977 . Ruffen was given a performance . evaluation on 25 Ma Y '1976 which carried a notation from her supervisor that Ruffen would work a 40-hour week until 2 October 1976 Ruffen testified that she was told that she could work full time until the Respondent no longer needed her serv- ices because of the Respondent's practice of hiring Northwestern Univer- sity students to work as nurses aides It is undisputed that about 2 weeks before theq 9 October 1976 strike a Northwestern University student was hired to do the same work Ruffen was doing In addition, Ruffen testified that her regular work schedule called for 7-8 hour days on Saturday and Tuesday through Friday of each workweek On such a schedule, Ruffen would have worked between 42 and 48 hours over the portion of the pay period occurring before the 19 October 1976 strike Instead, Ruffen's payroll record reveals that she worked only 32 hours during this period, a number consistent with the Respondent's contention that Ruffen was placed on a 3-day/24-hour workweek before the strike began While Ruffen testified that her schedule was not changed' before the strike, the judge did not specifically credit this testimony and elsewhere discredited Ruffen Under the circumstances, Member 'Hunter finds that Ruffen was working a'3-day/24-hour workweek before the strike and that the Re- spondent therefore reinstated Ruffen to an equivalent position in June 1977 2 We adopt as consistent with our holding in Clear Pine Mouldings, 268 NLRB 1044 (1984), the judge's conclusions that striking employees Erde, Pinero, Reeves. Walker, and Matson forfeited their entitlement to rein- statement and backpay under the Act by their,stnke misconduct In addi- tion, we find merit in' the Respondent's exception to the judge's conclu- sion that striking employee Rena Baskin did not likewise disqualify -her- self from reinstatement Strike misconduct warrants denial of reinstate- ment and backpay if, under the existing circumstances. it reasonably'tends to coerce or intimidate Clear Pine Mouldings, supra We find that by grabbing a nonstriking employee walking along the sidewalk 'on her way to work by die elbows and shaking her and by' taking an incominep'a- The Respondent has excepted to the judge's con- clusion -that .the Union's expressly unconditional offer ' to return to work on behalf of the unfair labor practice strikers was not in fact conditioned nor was it qualified by the Union's later statements. The Respondent argues that by making the offer on behalf of ."each and every" striking employee in response to the Respondent's position in settlement negotiations that it would not reinstate 10 strikers because, of their strike misconduct, and by later statements, the Union "insisted as part of its offer" that the Respondent take back every striking em- ployee. We have found that 6 of the 10 contested strikers did forfeit their entitlement to reinstatement and backpay under the Act by their misconduct during the strike. Had the Union made an offer on 2 March 1977 providing that the striker's would return to work 'only if all strikers were reinstated, none of the strikers would be entitled to backpay from that date because the- offer would have been conditioned, in part, on the reinstatement of those strikers we have found the Respondent was not le- gally obligated to' reinstate and the Respondent therefore would have been privileged to reject it. See Sawyer Stores, 190 NLRB 651 (1971); American Beauty Baking Co., 171 NLRB 700 (1968). The judge found, however, no evidence that the Union either implicitly or explicitly made such an "all or none" offer. On careful review, we find the judge's conclusion to be supported by the record and therefore adopt it. An offer to return to work on behalf of "each and every" employee, standing alone, does not raise the inference that no striker will return unless all are reinstated. See Homes Insulation Service, 255 NLRB 311, 312 fn. 8 (1981). The Respondent urges that the Union's offer on behalf of each and every striker, does have such import here because it was made in "response" to the Respondent's position in settlement discussions that it would not reinstate 10 of the strikers. The Union's witnesses testified that the Union did .not learn of the Respondent's posi- tion concerning the 10 strikers until after the offer was made. Even assuming, however, that the Re- spondent's version of the sequence of events is cor- rect, -the record shows that the Union's offer both tient by the arm and steering her away from the Respondent's clinic, Baskin clearly engaged in intimidating and coercive conduct We there- fore conclude, 'contrary to the judge, that Baskin is not entitled to back- pay and have modified the recommended Order accordingly In adopting the judge's conclusion that the Respondent failed to carry its burden of demonstrating that employee Harmon did not engage in misconduct warianting a denial of reinstatement, Member Hunter relies solely on the judge's finding under Blue Flash Express, 109 NLRB 591 (1954), that the Respondent did not produce persuasive evidence that Harmon had engaged in the misconduct alleged 273 NLRB No. 97 684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by its terms and the form and circumstances of its delivery is separable from the exchange of positions comprising the contemporaneous settlement discus- sions. The Respondent's witnesses testified that the settlement negotiations were conducted by the pre- siding judge at the unfair labor practice hearing, who relayed each party's position or response to the other while the parties were sequestered in sep- arate rooms. On the other hand; it is uncontested that the Union's offer was in the form of a- signed and dated document expressly stating that it was an unconditional offer to return to work which was delivered directly to the Respondent by the Union in the hallway outside the hearing room during a scheduled break in the negotiations. The evidence proffered by the Respondent establishes at most that the Union was aware of the Respondent's posi- tion on the 10 strikers before making its offer. That the Union nevertheless made the offer on behalf, of each and every striker does not compel the infer- ence that the offer was conditioned on the return of all. Also, we are not persuaded that the Union's statements following the offer to return to work, cited by the Respondent; conditioned the offer on the reinstatement of every striker. The record indi- cates that the Union's 'statement to 'the presiding judge at the hearing and to counsel for the General Counsel that the Respondent should drop the strike misconduct allegations and that all , strikers had to be reinstated pertained to the Respondent's propos- al in settlement discussions that the parties engage in some form of expedited litigation or arbitration to determine whether the listed strikers were enti- tled to reinstatement. The Respondent chiefly relies on union attorney Domesick's testimony that, in re- sponse to • the statement by the Respondent's attor- ney Leon Kowal that the list of 10 strikers repre- sented those employees whom the Respondent would not take back under any circumstances , but that the Respondent was prepared to discuss the return of the others, Domesick told Kowal 'that "we were not going to engage in discussions which were premised on our agreement that these ten under no circumstances would be returned." It cannot be conclusively determined frOm the record whether this exchange concerned the future course of settlement discussions or the fulfillment of the Respondent's legal obligation to reinstate the strik- ers triggered by the offer to return to work. Even assuming that Domesia's remarks concerned rein- statement of the strikers pursuant to the Union's offer, his expression of the Union's disagreement with the' Respondent's position on the 1100 strikers does not amount to a statement that, unless these strikers were reinstated, no employee would return to work. The Respondent also contends in its exceptions that on 2 March 1977 it made a valid unconditional offer of reinstatement to the striking employees both by its expressed willingness in settlement dis- cussions to take back. all the listed strikers without condition and by Leon Kowal's above-mentioned statements to attorney Domesick that the Respond- ent was prepared 'to discuss the return of the other strikers or as to them did not have the same objec- tion as it did to the strikers on the list. We find no merit in this contention. To toll the backpay period, an employer's offer of reinstatement must be unequivocal, unconditional, and sufficiently spe7 cific to apprise employees that they are being of- fered their former jobs, or if these jobs no longer exist, equivalent positions. L. A. Water Treatment, 263 NLRB 244 (1982); Standard 'Aggregate Corp., 213 NLRB 154 (1974). The Respondent's state- ments that it would "take back" certain of -the strikers or was "prepared to discuss" their return lack the required specificity to constitute a valid offer of reinstatement and toll the backpay period. Cf. Moro Motors, 216 NLRB 192 (1975) (employ- er's statement to employee that he would like to have employee back not valid offer of reinstate- ment). For the foregoing reasons, we agree with the judge's conclusion that the Union made a valid offer to return to work on 2 March 1977 and that the backpay period runs from that date. ORDER , The National Labor -Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Preterm, Inc., Brookline, Massachusetts, its officers, agents, successOrs, and asSigns,' shall take the action set forth in the Order as modified. : Strike the name Rena Baskin from ,the "list of backpay recipients. - SUPPLEMENTAL DECISION STATEMENT OF THE CASE JERRY B. STONE, Administrative Law Judge. This pro- ceeding -to determine backpay, if any, due certain unfair labor practice strikers, pursuant to the remedial order issued.by the Board on February 9, 1979 (reported at 240 NLRB 654), and by stipulation conceded to be in all re- spects a valid and proper order, was held on November 16-20, 1981, and January 25-28, and February 1 12 and 8-10, 1982, at Boston, MaSsachusetts. The issues essentially concern (1) whether the Union made an, unconditional offer on March 2, 1977, for the striking employee§ to .return to work, (2) whether certain employees engaged in serious strike misconduct remov- PRETERM, INC 685 ing them from the remedial protection of the Act, (3) whether certain employees engaged in due and diligent search for employment, (4) whether certain interim earn- ings are correct as alleged, and (5) whether there has been inexcusable delay on the part of the General Coun- sel from September 13, .1979, until .April 2, 1981, in issu- ance of the backpay specifications so as to prohibit inter- est as part of the backpay for such period of time. By and large, the formula and computations are not in dis- pute All parties were afforded full opportunity to partici- pate in the proceeding. Briefs have , been filed by all par- ties and have been considered. On the entire record in this c ase, and, from my observa- tion.of the witnesses, I make the following , FINDINGS OF FACT A The Issue of In-excusable Delay The facts reveal that the -Board's remedial order in the underlying unfair, labor practice -proceeding issued on February 9, 1979, and that the Respondent entered into a stipulation conceding that said remedial order was a valid and proper order about September 13, 1979. The Respondent contends that there was an inexcus- able delay on the part of Region 1 of the NLRB in taking from-- September 13, 1979, until April 2, 1981,-to issue the backpay specifications, and that therefore "in- terest" is not properly owed by the Respondent for such period of time The remedial order in the underlying proceeding is di- rected to the Respondent: No evidence was presented to reveal that the Respondent, on its own, could not have made all the computations and determinations necessary for compliance with such order Accordingly, the lack of evidence to establish that the Regional Office withheld facts from the Respondent or made it difficult for the Respondent to see witnesses or records relating to inter- im earnings, search for employment, or expenses would require a rejection of the Respondent's contentions with- out further consideration of the Region's compliance ef- forts. • However, such evidence as was presented concerning the Region's compliance efforts' also fails to establish any basis for the relief requested by the Respondent Thus, the facts clearly reveal that the Region, prior to the underlying decisional order, had commenced efforts in 1977 to obtain information necessary for the determi- nation of backpay. It is clear therefore that as of Septem- ber 13, 1979, the Region had some of the information re- lating to the backpay claims: The precise type of infor- mation to determine what employees would have earned had they worked for the Respondent during the backpay period normally has to be determined from the Respond- ent's records. The facts clearly reveal that shortly after September 13, 1979, efforts were commenced by the I Although compliance with an order is the responsibility Of the Re- spondent, the Board tenders its aid in effectuating compliance, and deter- mines whethe'r compliance is proper and, if disputed. has procedures to resolve such dispute Region to obtain such records from the Respondent and that such records were only received as of July 3, 1980 Although the Region clearly had some information from employees relating to backpay questions as of Sep- tember 13, 1979, such information as was specifically dis- cussed or presented into the record had been obtained in 1977 It is ob:fious that information relating to a backpay period commencing in 1977 and continuing as of Septem- ber 1979 would require further completion or updating of information within the knowledge of the Respondent and/or backpay claimants. No evidence was presented to reveal in detail steps taken by the Region or problems presented. Nor was 'evidence presented to reveal in detail the communications between the Region and the Re- spondent from July 1980, to April 1981. The proceeding revealed much dispute as to backpay issues up and to the trial in this proceeding Many issues were narrowed, but many issues remained unsolved. In sum, the facts fail to establish that there was unreasonable or inexcusable delay, for which the Region should be deemed responsi- ble, with respect to the issuance on.April 2, 1981, of the backpay specifications in this case. Accordingly, the Re- spondent's contention that interest should not be comput- ed on the backpay for such period of time until April 2, 1981, is rejected. B. The Unconditional Offer to Return to Work On March 2, 1977, the Union executed a document purporting to be an unconditional offer to return to work by striking employees. Such document was worded as follows: District 1199 Mass. National Union of Hospital and Health Care Employees, a division of RWDSU/- AFL-CIO, on behalf of each and every employee employed by - Preterm, Inc. as of October 18, 1976, whose work ceased thereafter as a consequence of a labor dispute , with Preterm, Inc., unconditionally offers to return to work at Preterm, Inc Dated: March 2, •1977 /s/ Elliot Small Elliot Small, President On March 2, 1977, .representatives of the Union met certain representatives of the Respondent and handed the above-referred-to document to the Respondent's attorney Kowal. The Respondent objected to the receipt of such docu- ment in evidence on the alleged basis that the document or offer to return to work by strikers was a part of settle- ment negotiations. The document clearly purported to be an unconditional offer to return to work by the striking employees and for such reason was received into the evi- dence. The Respondent was allowed to litigate the question of whether in fact such offer was an unconditional offer to return to work by the striking employees.2 2 The evidence presented with respect to the negotiations for settle- ment has value limited to the specific Issue of whether or not the March 2, 1977, offer was an unconditional offer to return to work by the strik- ers 686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Nothing in the evidence presented reveals that the Union withdrew such offer, or made , any staternents qualifying suck offer. Nor does the evidence presented reveal that such offer was a mere, position or Was quali- fied in any way. The facts relating to the "negotiations" for settlement reveal that'the administrative law judge for the underly- ing unfair labor practice proceeding attempted to aid the parties in the settlement of the unfair labor practice pro- ceeding 'and that an aspect of such settlement involved a strike settlement and a question of the returning to work of striking employees: There had been settlement efforts by the parties_ and the administrative law judge prior to March 2, 1977, the date Of the referred-to Offer to return to work. ,3 There . Were settlement efforts after the re- ferred-to offer. Excluding the events wherein the March 2, 1977 offer to return to work was made,_settlement ef- forts involved eaOlt party having discussions of its own, having disCussion§ with the administrative law judge, making statements to the administrative law judge for transmission to the other party, and rebeiliing statements from the administrative law judge purpottedly transmit- ted from the 'other party. , In effect prior to the March . 2, 1977 unconditional offer to return to work by the strikers, there had been some indication that the parties should bnild step by step to a settlement and that a solution. as to the end of the strike and return to work of striking employees was needed before settlement could'ensue. An unconditional offer to return to waik by strikers is more than a position, it is an actual act. Positions, as viewed with respect to evidentiary questions of settle- ment negotiations, may be said, to be tantamount to con- ditional ,offers. The evidence relating to settlement effort's does not reveal that the Union ever abandoned its act of an un- conditional offer made on March 2, 1977. The evidence, however, reveals that prior to such offer'and afteiward, the' Respondent took the pOsitiOn that certain of the strikers were not to be returned to work because of mis- conduct during the strike. The Union's position in settle- ment discussions consistently was to the effect that any settlement would have to be on the basis that all striking employees be returned to work There is a distinction between the Union's, act, the March 4 1977 unconditional offer for striking 'employees to return to work, and its position. 'As to the Union's act, absent a settlement, the Respondent was obliged to take the striking employees, excepting those disqualified by misconduct from statutory protection; back immediately if such enployees were unfair labor practice strikers, and immediately if not replaced Or Whenever a position became available, if. such employees were economic strikers. The Union's position that all strikers had to be reemployed had only a bearing as a part of negotiations for settlement. _ The evidence presented as to negotiations for settle- ment merely reveals that the Respondent participated in settlement negotiations and considered 'settlement with 3 The offer was made in the hall or outside the room wherein' the unfair labor practice trial was scheduled to be resumed the return of strikers other than ones considered to have engaged in misconduct, despite the fact that many, if not all, strikers had been replaced The evidence reveals that the Respondent's position at the 'unfair labor practice trial was that the strike was an economic strike and not an unfair labor practice strike. At some point in the negotiating discussions with the administrative law judge, apparently toward the end Of such attempts to settle, one of the Respondent's attorneys indicated to the administrative law judge that the Re- spondent would "accept" back the strikers other than certain strikers who had allegedly engaged in mi gcon- duct. There is no evidence to reveal that such remarks were transmitted to the Union. -Nor is there any reason to infer that an administrative law judge 'would commu- nicate such remarks or that the parties should believe that he would. The administrative law judge's interest is in aiding the parties to develop a proper settlement and, if not, to conduct a proper trial. Remarks, not related to "negotiations" of this nature, are of the type that the par- ties themselves should communicate to other parties. Moreover, evidence of later communications reveals that the effect of such remarks involved an understanding that the Respondent was treating such striking employ- ees as "economic" strikers who would be accepted back when a vacancy occurred. The sum of the evidence,' relating to the unconditional offer of March 2, 1977, and to "negotiations" for settle- ment, persuades and I conclude and find that the Union's offer of -March 2, 1977; constituted an unconditional offer to return to work by all striking employees.4 Since the facts reveal that the Union's offer of March 2, 1977, constituted an unconditional offer to return to work by all striking employees, the evidence relating to settlement negotiations must be considered rejected for all other purposes. C. The Backpay Determination 1. Employees as' to whom the only-issue involved the "unconditional ,offer" question As to the below-referred-to employees, the only issue as to backpay or entitlement concerned the validity of the March 2, 1977 unconditional offer to return to work. As indicated beforehand, the March 2, 1977 uncondition- al offer to return to work by the strikers constituted a valid unconditional offer. Based -on the findings and conclusions relating to the March 2, 1977 unconditional offer by the Union for the strikers to return to work and :the pleadings and admis- sions therein, it is concluded' and found that the net back- pay due the individuals set forth below is as follows:5 CALENDAR QTRS. NET BACKPAY Kathryn Alexas Abrams 19774 625 93 4 See Colonial Haven Nursing Home, 218 NLRB 1007 (1975) 5 with minor corrections concerning inadvertent erroneous computa- tions or other errors and with interest as indicated later PRETERM, INC 687 1977-11 . 1967.19 1977-111 1564.80 Sandra Brody 1977-1 214.33 1977-11 576.59 1977-111 696.54 1977-IV 246.47 Betsy Budd 1977-1 772.84 1977-11 1310 42 1977-111 787.12 Ann Chronis 1977-1 90.00 1977-11 240.60 1977-111 221.34 Susan Cohn 1977-1 708.08 1977-11 638.0 1977-111 160 35 Elizabeth Cone 1977-111 11.46 Alice Fine 1977-1 108.64 1977-11 369.28 1977-111 450.62 Cynthia Jones 1977-1 145.53 1977-11 126.29 1977-111 151.32 1977-IV 6.98 Kathleen Kelley 1977-1 515.60 1977-11 1602.29 1977-111 1378.78 1977-IV 63.64 Vivian Kemp 1977-1 252.25 1977-11 • 724 08 1977-111 785.73 1977-IV 675.34 Joan Levine 1977-1 383.71 1977-11 1205.96 1977-111 222.94 1977-IV 30.71 Paula Murray 1977-1 630.12 1977-11 1383.79 1977-111 77.72 1977-IV, 109.20 Frances Newcombe 1977-1 300.09 1977-11 574.87 1977-111 33.22 Anne O'Leary 1977-1 5.45 1977-11 5.70 Elizabeth Phillips - . 197.7-11 522.93 Chldrae Prince 1977-1 145.53 107711 152.46 Judith Rice 1977-1 727.65 1977-11 2305.09 1977-111 , 2483.13 1977-IV 2303.13 1978-1 ' 191.01 . Gail Shulman , 1977,-1 526.68 . 1977:11 1680.36 1977-111 1637.81 1977-IV 52 63 Paula-pires . 1977-1 551.25 1977-11 166.09 1977-IV 12.88 Phyllis Sweet 1977-1 611 18 1977-11 1920 84 1977-111 1973.95 Ann Wax 1977-1 312.35 1977-11 624.70 2. Employees for whom no backpay is alleged to be due Fradkin and Simmons The General Counsel's backpaY allegations included allegations relating to backpay computations for employ- ees for whom there was in effect no ultimate loss in backpay under the formula. Further, as to some individ- uals, the formula sets forth amounts of backpay due for some quarters and not for other quarters during the backpay period. There would appear to have been no dispute between the General Counsel and the Respond- 688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ent on such point. No issues thereto have been 'raised by the pleadings. And no issues have been raised by the par- ties or potential intervenors in interest during the public proceedings held to determine the backpay issues Thus, I note that the issues litigated in this proceeding are the issues raised by the pleadings. Accordingly, I conclude and find that the facts relating to the backpay computa- tions for Sharon Fradkin and Betty Simmons are those alleged in the specifications and admitted in the plead- ings, and that no backpay is due either Fradkin or. Sim- mons 3. Backpay claimants—unavailable as witnesses— Claudia Bostick and Azanah Phipps • „ There are two alleged backpay claimants, Claudia Bos- tick and Azanah Phipps, who were unavailable as wit- nesses at the backpay trial As to these claimants, the res- olution of the "unconditional offer" issue leaves only po- tential issues as relate to search for employment , interim earnings and expenses. There is no dispute. ,as- to the backpay period or as to gross earnings to' be utilized in the computations of backpay for each alleged claimant. Thus, it is clear that the General Counsel has met his ini- tial burden of establishing backpay due to such backpay claimants. It is the Respondent's burden to establish offsets to the gross backpay due claimants. Thus, the Respondent has the burden of establishing that the claimants had, interim earnings not utilized in the backpay computations and to establish willful loss of earnings as by 'failure to‘-'seek em- ployment. The Respondent's answer avers that it is with- out knowledge of whether there were no :Interim earn- ings" or whether the backpay claimants sought- interim employment. It is not necessary to determine the adequa- cy of such pleadings in this case. The parties expressed agreement at trial for a determination of backpay due with provisions for payment into escrow funds of the amounts determined and for provision for future litiga- tion, if, necessary, as to the "interim earnings" and "search for employment" issues. On consideration of the determination that the Union made a valid and unconditional offer on March‘ 2; 1977, for the striking employees to -return to work, the facts re- lating to gross backpay as established by the pleadings, the lack of evidence relating to "interim earnings" or willful loss of earnings, and the agreement bythe parties as to further procedures to be used pending location of the backpay claimants, I conclude and find that the back- pay due, with interest, to the below listed backpay claim- ants is as set forth, but with certain rights accorded to the parties for further litigation, if necessary, concerning backpay determinations.6 ;- 6 In accordance with the procedures set forth in Mastro Plastics Corp, 136 NLRB 1342, 1348 (1962), the' Respondent 'shall place a Sum of moneys, equal to the backpay.determined due said backpay claimants, in escrow accounts Further, on location of one or both of the lpckpay claimants, existence of an estate or hen-i if a backpay claimant is deceased at such tune, or establishment of state of 'Jurisdiction of O'ne or more- of the backpay claimants, if deceased, if; the' Respondent has evidence to present:relating to issues 'concerning "interim earnings" or willful loss of earnings, the Respondent shall be entitled, to a reconsideration of the order relating to backpay to such clirhant and to, litigation Of the issue of "interim earnings" .'and "willful loss of earnings" If there exists noeVi- CALENDAR QTRS. Claudia Bostick NET BACKPAY 19774 $ 450.24 1977-II 1415.04 J536.47 1977.-IV 283.66 Azariah Phipps 19774 462.00 1977-II .1452.00 1977-III 1518.81 1977-IV 751.87 4. Certain miscellaneous issues excepting as relate to misconduct—Dawe, Jones, Present, Poole, and Ruffen a. Janice Dawe The determination has been made that the Union's March 2, 1977 unconditional offer on behalf of the strik- ers to return to work constituted a valid unconditional offer. Excepting for the question of determination of av- erage weekly earnings as a basis for computing gross earnings, there are no other issues concerning backpay due Dawe. The General Counsel's formula averred and the Gen- eral Counsel contends that Dawe's gross earnings should be based on a projection of average earnings for an 18- 1/2-hour week The Respondent contends that Dawe's gross ,earnings should be based on a projection of aver- age weekly earnings of $49 26 as determined from Dawe's earnings of the second and third quarters of 1976. The General Counsel presented testimonial evidence by Regional Compliance Officer Beal to the effect that the backpay computations for Dawe were based on a consideration of an affidavit by Dawe and the Respond- ent's payroll records Beal testified that normally he had utilized the earnings for employees for the second and third quarters of 1976 in determining average earnings for computing gross earnings; 7 that, however, Dawe's af- fidavit indicated that she had worked approxithately 12- 1/2 hours a week until the end of September or begin- ning of October 1976, that a change in , employment oc- curred around such time and that Dawe commenced working_ 5 hours on Saturday in addition to a -schedule of 4-1/2-hours on Monday, Wednesday, and Friday of each week. Beal testified that he spoke with Dawe and ascer- tained that the change and added hours resulted from an dence relating to such issue, the escrow funds shall be paid to such claim- ant, estate or heirs of such claimant, or the person otherwise entitled to such assets, ag the case may be In the event of additional evidence relat- ing to the issues referred to, disposition of the backpay awards shall be in accordance with the procedures in the Mastro Plastics case Further, the Regional Director shall report the status of these backpay claims to the Board when these matters are resolved and in no event later than 1 year from the date of the Supplemental Decision and Order for such further orders as may be necessary 7 It is noted that the unfair labor practice strike commenced on Octo- ber 19, 1976 PRETERM, INC 689 employee named Alice Fine (Springer) dropping Satur- day work. Beal testified that in examination of Fine's af- fidavit corroborated Dawe's affidavit in such respect. The testimony of Beal - was objected to as regards proof of facts -other than the method or asserted basis of com- putation. Neither Dawe nor Fine was presented as a wit- ness. Payroll records for Dawe and Fine were presented into the record. Beal testified to the effect that an examination of Dawe's payroll record and her affidavit, including refer- ence therein to a vacation during the last week of Sep- tember, indicated an 18-1/2-hour workweek. In and of themselves, the payroll records relating to Dawe and Fine are not sufficient to establish an 18-1/2- hour workweek for Dawe during the period of time just preceding the strike. Beal's testimony of a hearsay nature, .objected to, and received on a limited basis, does not supply the necessary evidence to establish that Dawe's workweek immediately prior to the strike was that of an 18-1/2-hour workweek. This being so, the preponderance of the evidence only warrants a finding, as alleged by the Respondent, that Dawe's average earnings should be based on the work history for the second and third quarters of 1976, and that the average weekly earnings, properly to ,be used for computation of gross earnings, should be $49.26 per week as of the commencement of the baCkpay period on March 3, 1977. Accordingly, the computations for Dawe's backpay should be as follows: Calendar Quarters Weeks Gross Back- pay Net Interim Earnings Net Back- pay8 19774 4.2@ $49 26 $206 89 0 S206 89 197741 9@ $49 26 443 34 0 650 22 4@ 9 $51 72 206 88 1977-III 12@ $51 72 .62064 0 674 95 1@ "$54.31 54.31 1977-IV 4 6@ $54 31 249 83 0 249 83 b. Carolyn Jones (LaFleur) The determination has been made that the Union's March 2, 1977 unconditional offer on behalf of the strik- ers to return to work constituted a valid unconditional offer. There remains issues as to whether (1) Jones re- signed on October 21, 1976, and (2) the Respondent made a proper offer 'Of reinstatement on June 8, '1978. Further, the Respondent's pleadings set forth a denial that Jones had "no interim earnings" because the Re- spondent was without knowledge as to whether Jones had sought interim "Saturday" employment 8 with interest as set forth later 9 Dawe would have received a 5-percent wage Increase on June 6, 1977 " Dawe would have received a 5-percent anniversary wage Increase on September 26, 1977 (1) The resignation issue The evidence relating to the "resignation" issue con- sists of the following letter. 3 Adams Street Charlestown, Mass.-02129 OCtober 21, 1976 Preterm Massachusetts 1842 Beacon Street Brookline, Mass. 02146 To Deborah Fembloom: It is my understanding that my picketting [sic] on October 19, 1976 from 6:30 am to 9:00 am aligns me with the strikers at Preterm As a result of this fact and of my decision not to cross the picket line to work my usual part time Saturday schedule as of October 23, I also understand that I have been per- manently replaced at Preterm. • I have remained in this area in hopes that I could have added some constructive element to a very worthy cause. It is very obvious to me that such constructive efforts are of little benefit when both sides are willing to take extreme measures to win. I acknowledge with frustration and sadness that more respect was not shown for some very dynamic women and that no one at Preterm was able to re- spond at the onset with the kind of leadership that maintains good communication and prevents polar- ization. For both personal and professional reasons it is time for me to seek full time employment in another region. Enclosed are my usual forms which I will need by Tuesday, October 26. Sincerely, /s/ Carolyn Jones Carolyn Jones An unfair labor practice striker has a statutory right to reinstatement on an unconditional offer to return to work. Board law consistently has held that the waiver or relinquishment of a statutory right must be clear and un- equivocal. Considering the above letter under such standards, it is clear that Jones did not give up her statu- tory right as an unfair labor practice striker that she be reinstated upon an unconditional offer to return to work. I do not find in such letter any statement of resigna- tion of employment. Rather, such letter asserts that Jones continues to support the strike by a determination not to cross the picket line. The letter reveals that, although Jones continues to support the strike, Jones intends to seek full-time employment. It is noted that such actions, however, are kbstulated on the understanding that Jones had been replaced. Absent evidence that the Respondent, around such time, advised Jones that she had riot been replaced, the evidence warrants a finding that the Re- spondent had 'replaced" Jones. As a matter of law, however, the Respondent could not replace an unfair labor practice striker. Thus, it is further clear that Jones' letter could not constitute a clear and unequivocal waiver of Jones' rights as an unfair labor practice striker. 690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In sum, I conclude and find that Jones' letter of October 21, 1976, does not constitute a letter of resignation of em- ployment. (2) The June 8, 1978 reinstatement offer On June 8, 1978, the Respondent transmitted the fol- lowing letter to Carolyn Jones. June 8, 1978 Ms. Carolyn Jones 331 Shawmut Avenue Boston, MA 02118 Dear Carolyn, . I understand from the NLRB that your letter of October 21, 1976, to Deborah Feinbloom (wherein you said "For both personal and professional rea- sons it is time for me to seek full-time employment in _another region.") was not a letter of resignation I am writing to say that your former position of Saturday Counselor is available if you wish to un- conditionally return to your former job. Please advise me whether you can return to work the week of June 26, 1978. I must know by June 14, 1978, in order to make the necessary arrangements. Sincerely /s/ Diane Richards Diane Richards' Director DR/sa The above letter 'does not reveal itself to be a clear "unconditional" offer to reinstate Jones to her former position Rather, the letter indicates that the job is avail- able. In any event, the Respondent's decision to offer Jones her old job position was in fact conditioned on Jones' receiving a certain amount of retraining. Follow- ing the June- 8, 1978 letter, referred to above, the Re- spondent's agents had communication with Jones con- cerning such retraining during weekdays (not on Satur- day) Later, on June 30, 1978, the Respondent transmit- ted the following letter to Jones June 30, 1978 Ms. Carolyn Jones 331 Shawmut Avenue Boston, MA 02118 Dear Carolyn, This is to confirm our telephone conversation of Friday, June 30, 1978. I understand that at present you have a commitment during the week which makes it impossible for you to come into the clinic on week days to re-orient. As I mentioned to you, it is not feasible for you to come back without going through an orientation period. I further understand that the first week you would be available to come back to work is at the end of August As we discussed, unless you can make a commitment for "on call" in the fall, it may not make sense to re-orient at the end of August. I further understand from you that you want to have a chance to think about this issue. Please advise me whether you will be returning to Preterm by July 7, 1978. If we do not hear from you by July 7, 1978, we will assume you will not be returning to work If you have any questions, please do not hesitate to call me. Sincerely, Deborah H. Feinbloom, Ph.D. Coordinator of Abortion Counseling & Gynecology Clinic DHF/sa Contentions and Conclusions The General Counsel contends that -the Respondent, by its letter of June 8, 1978, did not make a proper offer of reinstatement to her old job to Jones In such regard the General Counsel argues that the "offer" was condi- tioned on Jones' receiving retraining. The Respondent appears to argue that there was a need for "retraining" because of the passage of time and that, in such context, such offer was proper. I find merit in the General Coun- sel's contentions Thus, on or about March 3, 1977, the Respondent had an obligation to reinstate Jones to her old position Although as of June 1978, there might be some merit to a contention that some retraining might be necessary, such would not necessarily be true as of March 3, 1977. The need for any retraining as of June 8, 1978, has either been caused by the Respondent's failure to reinstate Jones in March 1977, or at least greatly ag- gravated by such failure. Further, the 1976 strike was caused and prolonged by the Respondent's unfair labor practices. Under such circumstances, it is the wrongdo- er's responsibility to take such acts as are necessary to enable it to carry out its remedial responsibilities. Thus, the Respondent has the burden of making accommoda- tions to enable it to ensure necessary training of employ- ees connected with the reinstatement of employees. In the 'instant case, if necessary, the Respondent had the ob- ligation to arrange for "retraining" on Saturday. Accord- ingly, I conclude and find that the Respondent's June 8, 1978 offer of reemployment to Jones included a restric- tive condition resulting in such offer being an invalid offer.' (3) Interim earnings The Respondent's answer asserted, "Respondent is without knowledge whether Carolyn Jones ever sought interim 'Saturday' employment during her alleged back- pay period and therefore denies that there are no interim earnings." It is the Respondent's burden of proof to establish "in- terim earnings" or willful loss of earnings. No evidence " I do not find it necessary to pass on whether a need actually existed for retraining for Jones I note. however, It would appear that if such need existed, the same would have been specifically adverted to in the June 8, 1978 letter Further, the June 30, 1978 letter almost suggests an insincerity in the Respondent's actions • PRETERM, INC 691 has been presented as to "interim earnings" or willful loss of earnings other than certain admissions of interim earnings set forth in the backpay computations. (4) The backpay due Jones In accordance with the backpay specifications ' and pleadings, the disposition of the issues as previously set forth, it is clear that the backpay due Carolyn Jones for a backpay period (3/3/77-9/1/79) is as follows: CALENDAR QTRS. NET.BACKPA Yi 2 19774 $138.60 1977-11 435.60 1977411 459 10 1977-IV 472.94 19784 472.94 1978-11 472.94 1978411 434.34 1978-IV 454.20 19794, 496.60 1979-11 524.08 1979411 366.43 c. Amy Present The determination has been made that the Union's March 2, 1977 unconditional offer on behalf of strikers to return to work constituted a valid unconditional offer. It is clear that Present's backpay period ran from March 3 to May 3, 1977, that Present's average weekly earnings for the purpose of computing backpay was 33.44 per week, that Present had no ihterirfi earnings during the backpay period, that gross backpay (subject to the ques- tion of whether backpay should be disallowed because Present did not seek employment during the back-pay period) was $140.44 for the first quarter of 1977, and $147.13 for the second quarter of 1977. The critical issue is whether Present should be disal- lowed backpay because of her failure to search for work There was a paucity of evidence presented with re- spect to the issue as to Present's failure to seek work. Thus, the evidence consists of (1) a questionnaire and statement (attachment to a letter), utilized by Compliance Officer Beal with respect to his determination of "back- pay" due Present, and (2) testimony by Beal as to con- versations with Present Beal's testimony was to the effect that the question- naire and statement were prepared by him, 'sent to Present, and received back in completed form. Consider- ing a presumption of regularity, one . must conclude, absent contrary evidence, that the signature on such doc- uments purporting to be that of Present, was in fact the signature of Present, the backpay claimant. The questionnaire completed by Present and executed on June 30, 1980, contained the following questions and answers excerpts. 12 With minor corrictions concerning Inadvertent erroneous computa- tions and with interest as indicated later III. After March 2, 1977, when Preterm failed to re- - instate strikers upon the Union's request, how long did you continue to picket? . Not sure exactly. When did you begin to search for another job ? I did not as I was in graduate school at that time. For the period between March 2, 1977 and the date Preterm offered you reinstatement to your former or substantially equivalent position (as reflected in section II above): (a) please describe efforts you made to obtain other Work (include names, and locations of places at which yOu applied for work, and when you did so): see above If you did not look for work, please explain fully why? see above—I was in graduate sehool & working a non- paying internship 3 days/week & in class one other weekday, leaving only weekends free for paid employ- ment. Were you unavailable for employment for any reason (sickness, maternity, absence from area or country, attendance at school, etc.) at any time during this period? (If so, please give specific reason and dates of unavailability). I was in graduate school at that time tho 'remained 'available to work the hours I had been working at Pre- term (i.e. Saturdays)—note such a work schedule is nearly impossible to come by at comparable wages, I decided not to seek out comparable employment. The statement, executed by Present on October 13, 1981, contained the following question and answer ex- cerpts. Did you file for unemployment compensation after 'going on strike at Preterm? No. If so, how long did you collect? from to at which office? If you did not file for unemployment compensation, why not? (Please be as specific as you can in your answer). I would have been ineligible at that time as I was-then in graduate school. On what basis did you conclude that it would be nearly impossible to find comparable, or even suita- ble, 'work on Saturdays only? Please explain fully. I was in contact with various people in.similar agencies to find that such part-time, positions (i.e. one-two Sats/month) were not available (if such positions exist- ed at all.) Why did you not thereafter begin looking for an- other position? As stated above, I could find no leads even to begin to pursue that would suit my unusual time specifications. 692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is clear that it is the Respondent's burden to estab- lish that there should be a diminution of damages with respect to the ascertainment of backpay due Present. Thus, the Board set forth in Mastro Plastics Corp., 136 NLRB 1342, 1346 (1962): In this connection the Board reaffirms its long- standing rule that while the general burden of proof is upon the General Counsel to establish the damage which has resulted from Respondent's established discriminatory discharge, i.e., the gross backpay over the backpay period, the burden of proof is upon the Respondent as to diminution of damages, whether from the willful loss of earnings by the fail- ure to either look for or keep a substantially equiva- lent job or from the unavailability of a job at Re- spondent's plant for some reason unconnected with the discrimination. [Footnote omitted.] As for the "willful loss of earnings" we note that that principle rests not so much on the common law theory of mitigation of damages as on a public policy of "pro- moting production and employment." 12 In the utili- zation of the principle the Supreme Court left the matter to the wide discretion of the Board to keep the matter within reasonable bounds and avoid remote and speculative claims by employers. 'Absent a showing by Respondent that the individual claim- ant acted unreasonably or willfully or that a job would not have been available had the discrimina- tion not occurred, the General Counsel has estab- lished a prima facie case. 12 Phelps Dodge Corp v NLRB, supra, 197-200 Even as to the common law theory of mitigation, the generally accepted rule is that the burden of proof for an employer's breach of an employ- ment contract is upon the defendant to show that the plaintiff either found, or, by the exercise of proper industry in the search, could have procured other employment of an approximately simi- lar nature, and that in the absence of such proof the plaintiff is en- titled to recover the salary fixed by the contract Williston, Con- tracts, § 1360 Also note that in the Reed & Prince case, supra, foot- note 10, while the court states that the burden of proof in a con- tempt proceeding is upon the Petitioner, the burden of proving no contempt on the specific ground that the job would not have been available is upon the defendant See also Southern Silk Mills, Inc. supra Considering the evidence presented by the Respond- ent, one must find that the Respondent has not estab- lished that Present's gross backpay should be offset by a diminution based upon either an abandonment of avail- ability for the work market or a deemed constructive willful loss of earnings because of failure to search for work. Thus, the , Respondent has not established that Pre-sent was not available and willing to be employed for the same work hours that she had been employed by Preterm. Nor has the Respondent established that Pre- sent's failure to search for work was done with willful intent to cause a loss of earnings Rather, the Respond- ent's evidence reveals in effect that the failure to search for Saturday comparable work was based on a belief that it wag virtually impossible to find such work The pres- entation of Present's signed questionnaire and statements clearly did not satisfy the Respondent's burden of proof in establishing in effect a willful loss of earnings by Present. Perhaps evidence could have been presented to establish that Present did not believe that it was impossi- ble to secure suitable Saturday employment comparable to her Preterm employment. Perhaps evidence could have been presented to reveal that there was in fact available suitable Saturday employment comparable to Present's Preterm employment and that Present's failure to search for work was unreasonable. - Nevertheless, such evidence has not been presented, and the Respondent otherwise has not met its biirden of establishing that Present had willfully caused a loss of earnings during her backpay penod.' 3 The backpay due Present In accordance with the backpay specifications and pleadings, the disposition of the issues previously set forth, it is clear that the backpay due Amy Present is as follows: CALENDAR QTRS. NET BACKPA Yi 4 • 1977-1 $140.44 1977-11 147.14 d. Gloria Poole The determination has been made that the Union's March 2, 1977 unconditional offer on behalf of strikers to return to work constituted a valid unconditional offer. It is clear that Poole's backpay period ran from. March 3 to May 10, 1977, that Poole's average weekly earnings for the purpose of computing backpay was $165 per week, based on a 5-day week, that Poole was able to work only 3 days per week during the backpay period, that her av- erage weekly earnings for the purpose of computing backpay on a 3-day week basis was $103.95 per week, that Poole had no interim earnings, that gross backpay (subject to the question of whether backpay should be disallowed because Poole did not seek employment during the backpay period) was $436.59 for the first quarter of 1977, and $540.54 for the second quarter of 1977 The only issue with respect to whether or not Poole should receive backpay is whether Poole incurred a will- ful loss of earnings by failure to seek interim employment during the backpay period. The only evidence relating to such issue consists of Beal's credited testimony that Poole stated to him that she had not sought interim em- ployment during the backpay period By the eliciting of such evidence,' the Respondent met its burden of going forward with evidence relating to the question of an offset to gross earnings. The burden of going forward with evidence on such issue shifted to the General Coun- sel and/or the Charging Party Such evidence as needed to overcome the Respondent's evidence relating to a willful loss of earnings was not presented '5 " See Cornwell Co, 171 NLRB 342, 343 (1968) 14 With minor corrections concerning inadvertent erroneous computa- tions and with interest thereon as indicated later herein 15 The evidence relating to Poole's failure to seek interim employment differs from the evidence relating to Present's failure to seek employ. Continued PRETERM, 693 The evidence relating to Poole's failure to seek interim employment during the backpay period reveals a failure to attempt to mitigate a loss of earnings and warrants a finding that there was a willful loss of earnings by Poole during the first and second quarters of 1977. According- ly, the backpay allegations of net backpay due Poole shall be recommended to be dismissed. e. Harriet Ruffen The determination has been made that the Union's March 2, 1977 unconditional offer on behalf of gtrikers to return to work constituted a valid unconditional offer. It is clear that Ruffen's backpay period commenced on March 3, 1977. It is disputed as to whether Ruffen's backpay period was tolled on June 4, 1977, or continued until December 4, 1977. The determination, of this issue depends 'on whether or not Ruffen was entitled to be re- instated to a 5-day workweek instead of the 3-day work- week she was reinstated to on June 4, 1977. Further, there is an issue as to whether Ruffen should be disal- lowed backpay because she failed to diligently seek em- ployment during the backpay period. And there is an issue of the appropriate average earnings to be used for the computations of Ruffen's backpay. (1) The search for employment The evidence relating to Ruffen's search for employT ment consisted of Ruffen's testimony and an executed questionnaire and attachment submitted to the Regional Compliance Officer during the investigation of the back- pay issues as relating to Ruffen. Suffice it to say that I credit Ruffen's 'testimony to the effect that she made application for work in late 1976 to the Peter Bent Brigham Hospital and to the Boston City Hospital. I discredit her testimony to the effect that she made telephone calls to various nursing homes after the strike commenced in October 1976.16 The facts relating to Ruffen's failure to search for work during her backpay period 'establish in effect con- duct tantamount to a willful loss of earnings. According- ly, gross backpay for the period of time March 3 to June 2, 1977, shall be dismissed. (2) The reinstatement issue; the 5-day workweek schedule The facts reveal that on or around May 18, 1976, the Respondent put Ruffen on a 40-hour Week schedule For 1 day (8 hours) on Saturday, Ruffen was employed in a position' described as an "autoclave" position. For 4 days (32 hours) Ruffen was employed as a nurses aide This " Ruffen's questionnaire executed on November 12, 1980, and the "at- tachment" executed on September 18, 1981, is contradictory of her testi- mony that she sought work other than at 'the Peter Bent Brigham Hospi- tal and the Boston City Hospital 40-hour week schedule was set up to last until October 2, 1976. However, as of October 19, 1976, the time of the commencement of the strike, Ruffen was still employed on a 40-hour week basis. No explanation was presented into evidence to reveal why Ruffen Was continued on a 40-hour week basis Absent evidence to reveal otherwise, it is reasonable to presume that Ruffen's' employment for 40 hours per week would have continued beyond Octo- ber 19, 1977. - Respondent's obligation to Ruffen, an unfair labor practice striker, on March 3, 1977, and thereafter, was to return her to the job she held prior to the October 1976 strike. Such job consisted of work for 40 hours per week, 8 hours as an autoclave employee on Saturday, and 32 hours as a nurses aide during the rest of the week. Instead, on June 2, 1977, the Respondent offered Ruffen a job in a vacancy in her "former" position of Saturday autoclave technician Ruffen was reemployed for such autoclave work on Saturday, June 4, 1976. Later, exactly when is not clear, Ruffen was given 2 more days (16 hours) of autoclave work per week 17 It is clear that the Respondent did not assign Ruffen work for a 40-hour week until December 4, 1977. It is undisputed that Ruffen was fully reinstated as of Decem- ber 4, 1977. Considering all of the foregoing, I conclude and find that the Respondent, on March 3, 1977, and thereafter, was obligated to reinstate Ruffen to a job having the equivalency of a 40-hour workweek. Thus, reinstatement of Ruffen was not complete and proper until December 4, 1977. (3) The average earnings The facts set forth with respect to the reinstatement issue reveal a reasonable basis for belief that Ruffen's hours of employment per week would have continued on the basis of 40 hours per week in the backpay period. This being so, a formula using average earnings based on a representative time period of similar employment is more reasonable than one using a mixed history of less than 40 hours per week with earnings based on 40 hours per week or on a workweek of less than 40 hours a week. I find the General Counsel's formula of average earnings based on a 40-hour week as represented by earnings in the third quarter of 1976 to be reasonable. (4) The computations Based on the foregoing and the pleadings and, admis- sions therein, the computations for Ruffen's backpay are as follows: 1 8 17 This work was created by a problem relating to Gloria Poole. an- other autoclave employee 18 With minor corrections concerning inadvertent erroneous computa- tions and with interest thereon as indicated later herein 694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Calendar Quarters Gross Weeks Backpay Netln- terim Earnings Net Backpay 1977-1 '42 '$12350 190 190 190 1977-II 9 20$123 50 20S74 10 200 200 4 $129 67 518 68 $409 20 $183 58 (Total $592 78) 1977-III 13 $12967 $168571 $107756 S608 15 1977-IV 9 $129.67 $1167.03 790 48 376.55 (5) The issues of misconduct and certain other Issues—Baskin, Erde, Harmon, Matson, Pinero, Reeves, Rice, Walker, Weinberg, and Williams Introduction This case involves an unfair labor practice strike which commenced on October 19, 1976. The strike was caused and prolonged by the Respondent's refusal to ne- gotiate with the Union in good faith. The testimony of witnesses for the Union and the Re- spondent demonstrated that the strike evoked hostility from both sides and that a great residue of such hostility still existed at the time of the backpay trial herein. Essen- tially, the overall facts reveal that the Respondent had refused to bargain with the Union, "replaced" strikers, attempted to operate throughout the strike, utilized buses and police protection, and had some strikers arrested. The facts reveal that there was much usage of insulting and profane language by some strikers, personal confron- tation with employees and supervisors, picketing at indi- vidual homes, and some violence As to some of the vio- lence, the facts are insufficient to attach blame on the Union or individual strikers. The critical events as to alleged misconduct occurred around 5 years before the trial of this backpay proceed- ing. Around the time of the events, the Respondent and the Union were represented by counsel, and all parties should reasonably have been aware of the importance of the question of misconduct as affecting the rights of strikers to be reinstated It should also be noted that soon after some of the incidents, unfair labor practice charges were filed against the Union, and later a 10(j) injunction was sought Since the underlying unfair labor practice case was being processed around the same time, all of the ingredients for an investigation of most of the salient incidents _involved and a preservation of written state- ment for aid in pinpointing timing of events were clearly possible. Despite the above-referred-to aids available for utiliza- tion in the narrowing of issues and in the presentation of evidence preciselj7 related to time and detail, much of the evidence and testimony of many of the witnesses was presented in a generalized and conclusionary manner " Because Ruffen engaged in a willful failure to seek work (loss of earnings) during the period of time March 3 to 31. 1977, backpay is disal- lowed for such period 20 Because Ruffen engaged in willful failure to seek work (loss of earn- ings) during the period of time April 1 to June 2, 1977, backpay is disal- lowed for such period Ruffen's gross backpay for June 2, 3, and 4 was at the rate of $24 70 per day a. Rena Baskin The determination has been made that the Union's March 2, 1977 unconditional offer on behalf of the strik- ers to return to work constituted a valid unconditional offer: Excepting. for the question of whether Baskin en- gaged in serious misconduct during the strike (removing her from the remedial protection of the Act) and wheth- er there should be an Offset to gross backpay in the nature of equivalent interim earnings because of the value of a room furnished to her in interim employment, there are no other issues concerning,backpay due Baskin. (1) Misconduct by Baskin During the events of 1976 -and 1977 relating to the question of reinstatement of -Baskin, Jane Levin was di- rector and Diana Richards was assistant to the director of Preterm. The Respondent presented evidence relating . to the Respondent's refusal to reinstate Baskin because of misconduct which was considered in arriving at a deci- Sion not to ieinstite Baskin as of March 2, 1977. Thus, Levin and Richards testified qo incidents of misconduct by Baskin, incidents either personally observed by them or reported to them. The testimony of the witnesses relating to reports is largely conclusionary and wherein not amplified by other evidence is not sufficiently probative to warrant a finding of good-faith belief of disqualifying misconduct. The evidence referred to above relating to misconduct by Baskin may be broken down as follows: a Levin credibly testified, to the effect that on the first day of-the strike (October 19, 1976) she observed Baskin at 9 a.m. engage in misconduct Levin's testimony was as follows:21 Q. What did you specifically see Miss Baskin do at 9 a.m. on the corner of Beacon and Englewood? A. It was a little like - a boxing session. The person would try to move in one direction and then she would move in that direction, and then when she finally grabbed the person below the elbows and just sort of going like this. And I called down— Q. Can you describe in words the grabbing aspect that you are gesturing? A. She -sort 'of took the person's arms right about here— Q. What is here? You have to describe it in words A. Below the elbow, it was sort of trying to stir the person. Q This person, was this a non-striking employee, was this a patient, was this a bystander') A. It was a non-striking employee. Q. And do you know who it was, do you recall? A. No, I don't remember 21 I discredit Baskin's denial of the described Incident Many of the de- nials elicited from the General Counsel's witnesses were elicited by ques- tions phrased in part with verbiage of "do you recollect" or "do you recall " Denials elicited by such questions are not accorded great weight PRETERM, INC 695 I sent a word down to the first floor to ask the police to please take note of what was happening. It was not in the immediate area where the police were, and the police intervened and escorted the staff person. b. Levin credibly testified to the effect that several weeks later she observed Baskin with a patient, that Baskin "took the patient under her arm and was trying to steer her away," that the patient started to cry Levin further described- the situation as is revealed by the fol- lowing credited excerpts from her testimony Q. Did you see her pull her some way or push her some way, or what9 A. She didn't push her, she sort of pulled her. It wasn't terribly hard, but the person was terribly frightened. It wasn't as much of a resistance, a re- sisting situation as the first incident, because the person didn't really resist that much She just didn't understand what was happening Q. In what direction was she being pushed'? A. Down away from the clinic Levin testified to a belief that Baskin was "steering" the patient to a car that Levin believed was being used by strikers to take patients to another clinic. c. Richards and Levin credibly testified to a number of incidents wherein Baskin screamed and shouted state- ments to Richards, Levin, or Coordinator Fembloom as they entered or left Preterm's parking lot 22 One of the incidents testified to by Richards con- cerned an event occurring around November 1 to 19, 1976, wherein Baskin screamed at Coordinator Fein- bloom and told her in effect that she (Fembloom) had sold out women and was rotten and undesirable. Baskin's language included some words having sexual connota- tions Another incident, testified to by Levin, concerned an event occurring around November 1 to 19, 1976, when Baskin screamed and yelled at Levin. During such screaming and yelling, Baskin used terms of a profane, vulgar, or obscene nature and also set forth the follow- ing as is revealed by the following excerpts from Levin's testimony. Q Anything else you remember? A "Running that god damn murder clinic You are murdering all the patients You are running it without nurses and doctors You are stealing money, paying everything to yourself and you are not paying anything to the staff" Q. Okay Anything further about this incident9 A. Yes. She threw small objects through the grating. Q. Did she throw a couple items, two dozen items— '22 I discredit Baskin's denial of these incidents I found Levin's and Richards' testimonial demeanor while testifying to such incidents more frank, forthright, and truthful appearing than I did Baskin's testimony in denial thereof A No, I would say three or four. Q. With regard to these small objects that were being thrown through, I never heard you identify, for example, the small objects .that Rena Baskin was throwing through the grate. Do you have any memory of what they were? A. I believe they were all pretty much the same thing. - Q. What was what'? A. There are pebbles right near the area and leaves and -paper, and I believe it was all the same type thing. Richards, Levin, and others testified to other incidents wherein Baskin used profane or vulgar language directed to them or others. Some of the testimony of Levin and Richards was to the composite effect that there were reports of miscon- duct by Baskin which constituted a part of the basis for their decision not to reinstate Baskin Suffice it to say that the generalized testimony as to such reports lacked probative value to support the Respondent's burden of showing a basis for good-faith belief of such alleged mis- conduct. In any event, I find Baskin's denial of such inci- dents as referred to in such reports to be.more credible than the naked unsupported reports and so credit Bas- kin's denial. The General Counsel filed a petition for a 10(j) injunc- tion with the Federal district court wherein certain alle- gations of conduct, of a serious misconduct nature, by Baskin were alleged. Baskin testified in denial that she engaged in such conduct as alleged in such petition. In the state of the record as presented, I find Baskin's testi- monial denial credible and credit such denials Contentions and Conclusions The Respondent's pleadings averred and the Respond- ent contended at trial and in its brief, in effect, that the Respondent did not reinstate Baskin on and after March 3, 1977, because Baskin engaged in serious misconduct of the type which removed her from the remedial protec- tion of the Act The Respondent further contends that the Respondent's underlying unfair labor practices did not constitute justification for Baskin's misconduct. The Respondent's presentation of evidence of contended mis- conduct or basis of belief of misconduct consisted of direct evidence relating to certain incidents of alleged misconduct, reports of misconduct, and of the allegations in a 10(j) petition The General Counsel and the Charging Party contend that Baskin did not engage in serious misconduct and that the misconduct alleged to have been engaged in would have been justified by virtue of the -Respondent's Underlying unfair labor practice. As to the "reports" of misconduct, the facts establish that such incidents, as -"reported" but not supported by direct evidence, did not occur. As to the existence of a certain allegation of misconduct in a 10(j) petition, the facts similarly establish that such conduct did not occur. 696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As to the contention of supportive justification or lack of justification for misconduct by virtue . of the Respond- ent's underlying unfair labor practices, the facts reveal that the underlying unfair labor practices consisted of a basic type refusal-to-bargain violation essentially unac- companied by "unilateral" changes, "threats" or related unfair labor practices. There is, of course, some differ- ence in the consideration of whether some leeway or jus- tification should be accorded misconduct for an unfair labor practice striker as compared to an "economic" striker In the instant case I am not persuaded that great leeway or justification should be accorded employees who engaged in misconduct Essentially, the question of serious misconduct is to be viewed in the normal sense of the word The Respondent contends and the General Counsel and the Charging Party deny that Baskin used profanity toward Director Levin and others. Similarly, the parties dispute whether the usage of "profanity" or obscenity in a strike situation constitutes serious misconduct of the type to remove Baskin from the protection of the Act. The facts reveal that Baskin did use insulting, profane, and vulgar language in remarks to Levin, Richards, and others Such language certainly is not commendable and is to be deplored. Nevertheless, the Supreme Court of the United. States in Linn v. Plant Guard Workers Local 114, 383 U.S. 53 (1966), and Letter Carriers v. Austin, 418 U S. 264 (1974), has in effect determined that usage of in- sulting, profane, and .vulgar language, in a strike context, is to be tolerated. The question as to "language" of such a nature or of a disparaging nature concerns whether the same was made with malice or with reckless disregard. Included in such assessment is whether a hearer or reader would understand the same as rhetoric or not. 23 I am persuaded that the Linn and Austin cases have oblit- erated the validity of American Tool Workers Co., 116 NLRB 1681 (1956), as a holding that "profanity" in a strike situation is not to be tolerated In sum, I find that the usage by Baskin of vulgar and insulting language did not constitute serious misconduct removing her from the remedial protection of the Act.24 The Respondent contends that Baskin's remarks to Levin about .a "murder clinic," about "murdering all the patients," and the other remarks were disparaging re- marks of the type to constitute .serious misconduct. Although the language as referred to is not commend- able, I am persuaded that Levin knew that Baskin's re- marks were made only as strike rhetoric. For the same reasons as set forth above with respect to the argument about "profanity,'! I am persuaded that the above de- scribed language used by Baskin to Levin comes under the umbrella of the Linn and Austin doctrine and does not constitute serious strike misconduct when directed only at or heard by the employer's agents. The Respondent contends that Baskin's throwing of objects at Levin constituted an act of misconduct. The facts reveal that some small objects, like pebbles, were thrown at Levin by Baskin. The sum of the facts reveal 23 See W C McQuaide, Inc. 220 NLRB 593, 594 (1975) 24 See Firestone Tire Co. 187 NLRB 54 (1970), Capital Rubber Co. 201 NLRB 715 (1973) that no harm was done and that the incident was incon- sequential in nature and clearly did not constitute serious misconduct by Baskin.26 The Respondent contends in effect that Baskin's en- counter with a staff employee, described above, consti- tuted an assault on a nonstriking employee. The Re- spondent contends that Baskin's encounter with said staff employee and with a patient set forth in the facts before- hand, constituted serious misconduct of the type to war- rant removal of the remedial protection of the Act, from Baskin. The facts relating to these incidents, if revealing of misconduct, reveal an insignificant degree of miscon- duct.26 In sum, the evidence does not reveal that Baskin en- gaged in misconduct (during the 'unfair labor practice strike) of such a nature as to remove her from the pro- tection of the Act. It follows and I conclude and find that the Respondent was obligated to reinstate Baskin on March 3, 1977, following the Union's unconditional offer for her return to work.27 (2) Interim earnings - Baskin's backpay period ran from March 3, 19,77, to May_26, 1978 During the backpay period Baskin became employed by the Boston Conservatory of Music in Sep- tember 1977, and worked as a dormitory director throughout the remainder of her backpay period. Baskin received a salary of $100 a month as dormitory director. Baskin also received certain other wages in addition to the $100 monthly salary during the year 1978. As dormi- tory chreCtor, Baskin was required , to stay in a sChool dormitory during the first and second semesters. Baskin's employment with the school was postulated on the basis that she would receive room and board as normally re- ceived by one who paid a residence fee. Such fee was $1250 for the first semester and $650 for the second se- mester. The board consisted of certain meals furnished by the school. Baskin entered into an arrangement with the school whereby she received '$89 per month in lieu of meals. The school, for income tax purposes, reported the above-referred-to $89 as income. The school was not required to and did not report any equivalent value, for income tax purposes, for the furnishing of the dormitory room. The backpay specifications set forth for Baskin's inter- im earnings, a sum equal to the total of her salary and $89 per month for meals. The Respondent argues that those who enforce the Fair Labor Standards Act construe the furnishing of a room to an employee as wages. The General Counsel argues that the Internal Revenue Service does not con- strue the furnishing of a room to an employee required to stay in such a room to be wages. The Internal Revenue Service is concerned with the question of taxation and what should be taxed. There is and probably always will be dispute on the equitability 22 Moore Business Forms, 224 NLRB 393, 404 (1976), Overhead Door Corp. 220 NLRB 431, 440 (1975) 26 The cases cited by the Respondent reveal a factual basis of exten- sive misconduct by the striking employee involved 27 See W C McQuaide, Inc , 220 NLRB 593, 594 (1975) PRETERM, INC 697 of tax laws. The Fair Labor Standards Act is concerned with whether employees are treated fairly by the em- ployer The National Labor Relations Act, and the ad- ministration of the Act by the National Labor Relations Board, with respect to remedial orders and baCkpay de- terminations, is concerned with making the employee whole for loss of wages and benefits suffered as a result of discrimination. I am persuaded that the receipt of a furnished room, by an employee from an employer, may or may not be an item of constructive earnings to be computed in interim earnings. The receipt of such fur- nished room may be of value, may be of no value, or may be of less value to the backpay claimant than the same would be to someone else. Thus, if a backpay claimant lived at a family home nearby the site of the furnished room and had no cost, or substantially less costs than attributed normally to such room, the value of such room, for constructed interim earnings would have to be adjusted or not accorded at all. In the instant case, there is limited data to aid in deter- mining the value of the room furnished Baskin by the Boston Conservatory of Music. The overall facts, indi- cating that Baskin stayed at the school and used the dor- mitory room after the backpay period and during the summer months of 1978 after the school year, preponder- ate for a finding that the dormitory room had value for Baskin. Baskin's statements submitted to the National Labor Relations Board indicated a belief that the total of the residential fees ($1900) prorated on a monthly basis for the entire year revealed a monthly value of $158 for the room..Baskin's statement indicated that she believed that $158 was a fair value for one room. I .note that this determination ignored the fact that the $1900 residence fee covered both room and 'board. The record indicates that a reasonable fair market value of the meals (covered by the $1900 residence fee) was $89 per month. Further, the $1900 residence fee covered the first semester (4 months) and second semester (5 months). Baskin's state- ment to the Board reflected a reasonable basis of why the school _charged a higher fee for the first semester. I find it reasonable and appropriate that the residence fee should be prorated for the 9-month period Thus, $1900 (meals and room per residence fee) prorated for the 9 months equals $211 for meals and room per month. The evidence in the record .reveals that $89 represents a fair market value for meals per month It follows that $122 represents a fair value on a monthly basis for the room furnished Baskin. The referred-to $89, fair market value for meals, has already been included in the interim earn- ings for Baskin. Since the room had value to Baskin, and no offsetting considerations have been presented, the amount of $122 for the value of such room per month should be added to the interim earnings of Baskin for the backpay period from September 1977 to May 26, 1978. 23 The facts persuade that Baskin had worked at the Boston Conserva- tory of Music for 1 month during the third quarter of 1977, had received $100 in pay, received $89 for meals, and that $122 should be Included as interim earnings for the value of the room furnished by the school 29 The facts persuade that Baskin had worked for 3 months at the Boston'Conservatory of Music during the fourth quarter of 1977, had re- ceived‘$300 in pay, had received S267 for meals, and that $366 should be (3) Net backpay In accordance with the foregoing, the computations of Baskin's backpay should be as follows: Calendar Quarters 1977—I Gross Back- pay 549 40 Net Interim Earnings 0 Net Back- pay $54940 1977-11 1726 69 0 1726 69 1977—III 1785 55 189 00 28 +122 00 311 00 1474 55 1977—IV 1785 55 _567 00 29 + 366 00 933 00 852.55 1978-1 1840 51 802 18 38 +366 00 1168.18 672.33 1978—H . 1153 76 613.18 3 '1-225 23 838 41 315 35 b: Anne Erde The determination has been made that the Union's March 2, 1977 unconditional offer on behalf of the strik- ers to return to work constituted a valid unconditional offer. Excepting for the questions of whether Erde's backpay period should be tolled as of August 1, 1977, when she moved to New York, New York, from Boston, Massachusetts, and as to whether Erde engaged in seri- ous misconduct, during the strike which removed her from the remedial protection of the Act, there are no other issues concerning backpay due Erde (1) Erde's misconduct a. The strike commenced on October 19, 1976. During the first 3 or 4 weeks of the strike, Erde "pounded" (with her fist) on two cars taking employees to work, as the cars were near the rear of the Preterm building. During the same period of time, but at another specific time event, Erde also pounded on the side of a school bus used to transport employees to work On both the included as interim earnings for the value of the room furnished by the school The facts persuade that Baskin had worked for 3 months at the Boston Conservatory of Music during the first quarter of 1978, had re- ceived 5535 12 in salary or certain benefits, had received $267 for meals, and that $366 should be included as interim earnings for the value of the room furnished by the school Si The facts persuade that Baskin had worked for 8 weeks for the Boston'Conservatory of Music during the second quarter of 1978, during the baCkpay period, that her wages and certain other earnings for such period of time was $448 88, that she received $16430 for meals (8/13 x $267) and that $225 23 (8/13 x $366) should be added to interim earnings for the value of the room furnished to Baskin The above calculations are based on fair Inferences drawn from the record as a Whole In any event, it is clear that $225 23 should be added to the interim earnings of $613 18, previously set forth in the pleadings and that the resultant net backpay $315 35 698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD referred-to occasions, Erde was with a number of other strikers 32 b. During the first 2 weeks of the strike, Erde, around 8.30 a m., stood in front of a car and when the car then passed by her, used some type of object to scratch the car on two door panels 33 c., On a number of occasions Erde made insulting or vulgar remarks at Director Levin 34 d. Levin testified concerning the usage by Erde and some other striking employees (in the presence of pa- tients) of the terminology - of "Murderers, don't go in there, there are .murderers there" Considering the pres- entation of such testimony, I am persuaded that I must find that it simply lacks sufficient persuasiveness of ob- jectivity or preciseness to have probative value for a finding of "misconduct." Levin's testimony in large part was generalized and conclusionary, reflected an intense- ness and a difficulty in being related to specific incidents. It appeared more a blurred summary of overall recollec- tion of similar incidents I do not find it to have proba- tive value. Accordingly, I do not find the evidence suffi- cient to establish that Erde made the remarks alluded to by Levin on a specific occasion e Early in the strike, between 8.30 and 9.30 a.m., Erde told Yvonne Sullivan, a black Preterm supervisor, as she was entering the front of the Preterm building, that she (Sullivan) was a disgrace to her race. f. The General Counsel's-10(j) petition alleged that "on or about October 23, 1976, picketers Anne Erde and Rena Baskin followed two nonstriking employees away from the picket line and threatened to kill the two non- striking employees." No evidence was presented to .af- firmatively establish that such threats were made. I have previously credited Baskin's denial of such alleged threats. I also credit Erde's denial of such alleged threats. Conclusions Considering all of the foregoing, I am persuaded that Erde's scratching of , the door panels on a,car constituted serious misconduct removing her from the remedial pro- tection of the Act It follows that the Respondent's obli- gation to reinstate Erde had been eliminated as of,March 2, 1977, and that Erde is not entitled to receive back- pay. 33 Accordingly, it is determined that the Respondent owes no backpay to Erde 32 The facts are based on aspects of the credited testimony of Rich- ards I discredit Erde's testimony inconsistent with the facts found I have carefully considered the credibility of all of the witnesses and the presentation of the evidence Much of Richards' and Levin's testimony was presented in a generalized and conclusionary manner Much of said testimony was supplemented after leading questions were used Conse- quently. the weight of such testimony is not overwhelming Nevertheless, I found the facts as indicated to be more persuasive than Erde's denials I do not, however, find the conclusionary testimony as to the "blocking" of cars to be of sufficient probative value and do not find such "block- ing" of cars to have been established Nor do I find the testimony that Erde and other pickets pushed and shoved against a police line to have real meaning as regards the question of misconduct " The facts are based on Levin's credited testimony Erde's denial is discredited 34 The facts are based on Levin's credited testimony Erde's denial is discredited 35 See Bryan Infant Wear Go, 235 NLRB 305 (1978) I would not find that the three incidents of Erde's "pounding" on cars or buses sufficient to constitute seri- ous misconduct warranting her removal from the remedi- al protection of the Act. The usage of the word "pound- ing" ni describing conduct is conclusionary in nature. It is clear that some incidents of "pounding" might consti- tute serious misconduct and other incidents of pounding might not constitute serious misconduct. I do not find other contended incidents of misconduct to have been established. Thus, I do not find the incident of Erde's usage of insulting or vulgar, remarks to Levin to constitute serious misconduct warranting the removal of the remedial protection of the Act from Erde 36 I do not find the facts to establish a properly litigated incident of Erde's having used the terminology of "Murderers, etc ," in front of pickets. Erde's remarks to Sullivan to the effect that Sullivan was a disgrace to her race does not remotely approach conduct of a serious misconduct nature. Further, the facts establish that Erde did not threaten to kill two nonstriking employees (2) The question of tolling of the obligation to reinstate The Respondent's answer averred that Erde's backpay period ended on August I, 1977, when Erde moved to New York City from Boston 'The sum of the facts clearly reveals that Erde diligent- ly sought work during the backpay period while in the Boston area and while in the New York area. It is clear that Erde did not remove herself froth the job market so as to disqualify her for the receipt of constructive back- pay on the theory of a willful loss of earnings The Respondent's contention, however, may be viewed as a contention that Erde's removal to New York from the Boston area constituted in effect a con- structive removal from her Preterm job or potential Pre- term job reinstatement The facts are clear that Erde and her husband had been separated for 2 years prior to August 1977, that Erde continued to live in the Boston area from October 1976 to August 1977, that her husband lived in New York and was trying to start a video tape production business, that Erde and' her husband decided to reconcile, that at the time (of such decision to reconcile) Erde and her husband discussed whether she should move to New York City or whether he would return to the Boston- area, that Erde and her husband decided that she would move to New York since she did not have a job at Boston, and that Erde moved in August 1977 to New York.37 It should be noted that (absent the question of disquali- fying serious misconduct) Erde had a statutory right as an unfair labor practice striker on and after March 3, 1977, to be reinstated to 'her former job at Preterm In my opinion, the principles of waiver are applicable to the assessment of whether Erde abandoned her right of rein- 36 Firestone Tire Go, supra, Capital Rubber Go, supra 32 I, do not credit Erde's testimony to the effect that she had an under- standing with Harmon that she (Erde) could retake her apartment, which was leased on an "at will" basis, if she decided to return to the Boston area PRETERM, INC 699 statement to her Preterm job when she moved to New York City. Thus, the facts must reveal a clear and un- equivocal waiver of ,such right. The facts in the instant case at most reveal a question of ambiguous inferences. For all the facts, concerning the nature of Erde's hus- band's employment, it is speculative as to whether Erde or her husband would have remained in New York City rather than returning to Boston had there been a rein- statement offer at any time prior to May 26, 1978. Ac- cordingly, if it were assumed that Erde's conduct had not removed the remedial protection of the Act from her, it must be found that her backpay period extended to May 26, 1978. c. Nancy Harmon The determination has been made that the Union's March 2, 1977 unconditional offer on behalf of the strik- ers to return to work constituted a valid unconditional offer. There is an issue as to whether or not Harmon en- gaged in strike misconduct which removed the remedial protection of the Act from .her. There is also an issue as to whether Harmon engaged in a willful loss of earnings. (Ti) The alleged misconduct The Respondent contends that its reason for refusal to reinstate Harmon was based on acts of misconduct by Harmon believed or known by the Respondent to have occurred Thus, Levin testified to having considered certain re- ports from staff or patients relating to misconduct by Harmon. Levin's testimony was self-revealing as to its generalized nature and as to questions of reliability as re- gards such reports. Even without Harmon's denials of such alleged events, I would not find Levin's testimony as to such reports to have probative value to establish a good-faith belief basis for such alleged misconduct. I note that Levin's testimony alluded to a report, possibly by "Rabbit" (apparently a reference to employee Ravech). Harmon credibly denied having engaged in misconduct as referred to in Levin's testimony of reports of misconduct. Ravech' did not testify as to having made such reports or as to such alleged misconduct by Harmon In sum, the misconduct, or belief thereof, as set forth in Levin's testimony as to reports about misconduct by Harmon, is insufficient to establish an objective good- faith belief that Harmon engaged in misconduct, and the overall facts warrant a rejection of any contention, based on "reports," that Harmon engaged in misconduct re- moving the remedial protection of the Act from Harmon There are three alleged incidents of misconduct that merit consideration with respect to whether Harmon en- gaged in serious misconduct warranting the removal of the protection of the Act from her. The first incident involves the question of whether dr not Harmon used a rock and broke out a side window of a schoolbus which was transporting employees to work on Saturday, November 20, 1976. The witnesses present- ed with respect to this issue were Levin, Makaretz, Rayech, Harmon, and Erde. The overall record reveals that there was an incident on Saturday, November 20, 1976, where someone damaged a windshield on a school- bus, and someone damaged a side window on the same schoolbus which was transporting employees to work. Levin testified to the effect that Harmon, on the occa- sion concerning damage to the bus, smashed a window on the schoolbus (which was transporting employees) by hitting the same with a rock. Levin's testimony is re- vealed in effect by the following excerpts from her testi- mony: - Q. And when you returned what specifically did you see? A Nancy Harmon with a white mittened hand had a rock and smashed it against the window. The -glass went flying around in that area of the bus. Some of the members of the staff got hysterical, started to cry. I started to take glass out of some people's hair, it was hanging over their eyes. . . . . Q And can you describe the size of the rock? A., It wasn't too big, that's the best way I could describe it. Q. You are holding, up one hand— A. Size, that's right. Q. Your testimony is it was a rock that she could and did hold in one hand? A. One hand, it was not with two hands . . . Q. And I think I asked you how that particular window was broken, if you know? A. That was when I saw Nancy Harmon, with a mitten and a rock; and she was sort of tapping. It was brought to my attention before it actually hap- pened, because she was sort of tapping with this rock on the window. And then the next thing I knew it was—and the staff who were—you see the bus area, the side comes down very low on this bus- Makaretz testified to -the effect that Harmon smashed a window on a schoolbus transporting employees by hit- ting the same with a rock. Makaretz' testimony is re- vealed in effect by the following excerpts from her testi- mony: Q Anything else that you recall about this inci- dent? A As I was sitting in the bus and watching what was happening in front, Nancy Harmon ran to the side of the bus where I was sitting with a rock in her hand, and she smashed the window at the side • Where I was sitting, and the glass cracked in the window. Q. She had a rock in her hand? Al Yes. Q. How large was this rock? A. I would say about 4 inches in diameter. Q. Do you recall which. hand she had it in? A Right. 700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. Could you describe the action or the motion that she used to smash the window, to the best of your memory? A. She just hit the window with the rock. Q Was she still holding onto the rock? A. Yes. She was holding onto the rock. Q She didn't throw it9 A. No. - Makaretz further testified to the effect that a person had kicked in the windshield on the bus before Harmon had smashed the side window with a rock Levin testi- fied with respect to a "photography" of a bus and of someone apparently kicking at the windshield on the bus. Levin's testimony was to the effect that the side window had been smashed before the windshield had been dam- aged. The sum of the evidence persuades that Markaretz' testimony as to the events is not reliable Harmon testified to the effect that she was present on a Saturday when the windshield on a bus was damaged. Harmon's overall testimony was to the effect that her recollection of the events was not good. Harmon did, however, testify in denial that she had broken a side window of the bus with a rock. Harmon testified to the effect that she was 4 feet 9 inches tall, was left-handed, and normally did not use her right hand. Harmon testified to the effect that she did not recall who she was with at the time of the events, that she might have had her child with her, that she did not re- member Anne Erde's being present. - Anne Erde testified to . the effect that she and her child were with Harmon and her child at the scene of the bus incident and that she did not see Harmon hit the bus side window with a rock The credibility resolution in this case presents a diffi- cult task. The events occurred around 5 years prior to the time of the witnesses' testimony, and there is no indi- cation that the parties have had the advantage of an in- vestigation around the time of the events or of a preser- vation of investigatory type affidavits. I have found Makaretz' testimony as to the bus inci- dent.to be unreliable Considering all of the events and Erde's testimony as a whole, I also find little value and. attach virtually no weight to Erde's testimony as to the resolution of the dispute as to the facts relating to Harmon's alleged mis- conduct. The resolution of the dispute boils down to a consideration of whether to believe Levin or Harmon. It is self-evident that a witness would have better recall of positive and special incidents as compared to negative type incidents. If Levin had seen Harmon smash a window with a rock, it is reasonable that she would recall the same. If Harmon had not smashed a window with a rock, it is reasonable that she would not recall nonexcitmg type of details as to who else was present at the time of a contended event. The demeanor impres- sions given by Levin and Harmon were equally good. Levin could be testifying truthfully that she saw Harmon use a rock and smash the side window. On the other hand, Levin could believe that Harmon smashed the window with a rock and as a result of rationalization be convinced that she saw Harmon use a rock and smash the side window Harmon could either be testifying truthfully or untruthfully about the events The burden is on the Respondent to establish a good-faith belief of or the fact of serious Misconduct on the part of Harmon Simply speaking, the Respondent has not met this burden by presenting persuasive evidence that his witnesses are testifying more credibly to facts to support the conten- tion of serious misconduct by Harmon than Harmon is testifying in denial of such conduct.38 Levin also testified to the effect that on the same occa- sion on November 20, 1976, Harmon made certain re- marks to her as she and others left the schoolbus to go into the Preterm building. Levin's testimony as to these remarks was as is revealed by the following excerpts from Levin's testimony. Q. Let me stop you Is this after the window has been broken? A. That's right. And we formed a chain link, ev- erybody held someone's hand and we proceeded to .walk very quickly into the building. And at that time Nancy Harmon came up very close to me and shrieked, "We are going to get you. This is just the beginning." Harmon testified in denial of having made such re- marks as attributed to her by Levin. For the same rea- sons as previously set forth, I do not find Levin's, testi- mony to appear more credible than the testimony of Harmon. Accordingly, the Respondent has failed to meet the burden of persuasion of credibility, of witnesses and consequently has failed to establish the facts needed to prove the alleged misconduct. However, were the facts to be established as testified to by Levin, I would not find such remarks, allegedly made by Harmon, , to consti- tute serious misconduct warranting the removal of the protection of the Act from Harmon." Levin also testified to the effect that Harmon was part of a large number of pickets that blocked- and impeded a car, in which she was riding, on an occasion around 3 weeks after the strike started on October 19, 1976 Levin testified to the effect that Harmon made threats to her on this occasion. Levin's testimony as to what occurred is revealed by the following excerpts from the record. - It was probably about three weeks after the begin- ning of the strike. And that was trying to enter into the garage in • a car. 38 Blue Flash Express, 109 NLRB 591 (1954.) I note that the record reveals the presence of a number of policemen on the scene and that Harmon was not arrested for the damage to the side window It would appear that if a policeman saw Harmon smash the window with a rock, an arrest of Harmon would have been made An arrest not having been made, in view of the overall facts, is indicative that great commotion ex- isted at the time, and that there could be honest confusion as to what occurred " Such remarks do not appear to constitute a serious threat Capital Rubber Co, 201 NLRB 715, 722 (1973), Firestone Tire Co, 187 NLRB 54, 56 (1970) -PRETERM, INC 701 4. We were having trouble negotiating taking the corner and I guess the reason for it is that there were large numbers of people— You have to make a very sharp turn, no matter which way you are coming from you have to take a sharp turn. . . . I believe there were a group of people that were close by and we were having trouble making the turn . . . . Off of the sidewalk, close into the driveway The driveway was totally blocked, but it was hard to maneuver the car around, which happened often Q. Okay And what then specifically happened at this incident involving Nancy Harmon? A. She came up against the window where I . was and banged very hard on the window and said, "We are going to show you. We are going to get you. We are going to finish Preterm " Harmon testified in denial of the above incident. For the same reasons as previously set forth, I do not find Levin's testimony to appear more credible than the testi- mony of Harmon. Accordingly, the Respondent has failed to meet the burden of persuasion of credibility of witnesses and consequently has failed to establish the facts needed to prove the alleged misconduct. However, were I to find Levin's testimony more credible than Har- mon's, I would not find the testimony to be reliable, to establish that the pickets were blocking the passage of the car in which Levin was allegedly riding. Much of Levin's testimony was conclusionary. I am not persuaded that Levin's testimony, if believed, has essential reliabil- ity and sufficient probative value to establish that the car was blocked. If, however, the pickets blocked the car in which Levin was riding, such blocking of the car and such alleged remarks by Harmon do not constitute seri- ous misconduct of such nature to warrant the removal of the remedial protection of the Act from Harmon.4° (2) The interim earnings issue (the search for work) Prior to September 1976, Harmon had worked at Pre- term on the basis of a 4-day (32-hour) week. Around September 1976, Harmon enrolled in the New England School of Law. Around this time Harm6n changed her hours of employment from a 4-day (32-hour) to a 2-day (16-hour) week at Preterm. After the commencement of the unfair labor practice strike on October 19, 1976, Harmon sought employment at hospitals and abortion clinics. Harmon credibly testi- fied to contacting a large number of hospitals and abor- tion clinics and to having filed written applications for employment. Harmon credibly testified that she contin- ued to check newspaper advertisements and to talk to people in other abortion agencies concerning job oppor- 40 See fn 39 tunnies during the backpay period. Harmon only was able to obtain work of a law clerk type. The sum of the above evidence clearly reveals that Harmon made due and diligent search for work during the backpay period Having filed applications for em- ployment with various potential employers, Harmon's ef- forts to secure employment otherwise clearly reveal that she was not 'attempting to cause a willful loss of earn- ings. Harmon credibly testifiedio the effect that she had the responsibility for her child, needed a good paying job, and that she would have accepted other work than as a law clerk if such job were available at good wages. The sum of such evidence reveals that Harmon had not aban- doned the abortion counseling type work to concentrate on legal type work. Further, Harmon's employment in legal type work reveals that Harmon was not engaged in a willful loss of employment." At , most, the Respond- ent's contention that Harmon had voluntarily removed herself from the job market is a speculative contention The sum of the facts does not reveal that Harmon en- gaged in a willful loss of earnings during the backpay period (3) Backpay due Harmon Considering the foregoing findings, and the pleadings and admissions in this case, 42 it is concluded and found that the backpay due Harmon, plus interest, is as follows. CALENDAR QTRS NET BACKPA Y 1977-I $305.63 197741 960.57 1977411 317 33 1977-IV 578.47 1978-I 620 49 1978-11 381.84 d. Lucy Matson The determination has been made that the Union's March 2, 1977 unconditional offer on behalf of the strik- ers to return to work constituted a valid unconditional offer. There are issues as to whether Matson engaged in strike misconduct which removed the remedial protec- tion of the Act from her The incidents of misconduct or alleged misconduct by Matson are as follows 1. On the first day of the. strike Matson impeded the progress of three to four automobiles attempting to enter the rear Preterm parking lot by physically standing in front of the automobiles and pounding on the hoods of the cars." The automobiles would stop and then start up slowly and proceed onward within an estimated 5 to 10 minutes. There is no evidence that Matson damaged any of the cars by her pounding on the hoods. 41 See Ozark Hardwood Co, 119 NLRB 1130, 1133 (1957) 42 With minor correction concerning Inadvertent erroneous computa- tion 43 The facts are based on the credited testimony of Richards The credibility resolution is close However, I found Richards to appear to be slightly the most credible witness as to such incident - 702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Considering the above incident, in context with all of the facts, I am persuaded that such conduct, by Matson, did not constitute serious misconduct warranting the re- moval of the remedial protection of the Act from Matson. 2. Richards testified to the effect that employee Pinero, during the early weeks of the strike, kicked and pounded on cars, and obstructed the progress -of cars Richards testified that Matson did exactly the same thing. Such testimony was generalized and conclusionary in nature. The Respondent did not elicit any specifics from Richards as to Matson's kicking of cars. Matson denied that she kicked cars. Considering the probative value of the testimony, I found Matson's denial to be more credible and believable than I did Richards' testi- mony as indicated. 3. On a morning in November 1976, Matson , and around 10 to 12 pickets ran upthe front steps at Preterm and in effect crashed or ran into the door. 44 There is no evidence that any damage was done to the door Considering the above incident, in context with all of the facts, I am persuaded that such conduct, by Matson, did not constitute serious misconduct warranting the re- moval of the remedial protection of the Act from Matson. 4. On an occasion, around 3 weeks after October 19, 1976, around 4:30 to 6 p, m., Matson yelled through the grating, near the garage, to Levin who was getting in her car. Matson told Levin that she had better take , the strikers back or she would be sorry, that what had hap- pened to her then was nothing compared to what was going to happen to her later.45 There was some evidence presented as to serious prob- lems that had occurred at Levin's home and of activities directed toward Levin. It suffices to say that the evi- dence as a whole is insufficient to reveal that Matson's remarks related to such events Considering the facts as a whole, the remarks of Matson are insufficient to establish that such remarks in and of themselves, or in the context of other events, con- stitute serious misconduct warranting the removal of the remedial protection. of the Act from Matson. At most, such remarks appear no more than talk and _do not appear to reveal a serious threat 46 - 5. In February 1977, on three occasions, Matson and Levin had encounters involving patients who were enter- ing into Preterm's premises. On such occasions .Matson moved or placed herself in such a position as to attempt to block Levin's access to the patients On one occasion Matson spoke to the patient and told the patient in effect not to believe anything that came from Levin's mouth, that it was not safe to go into the clinic, that Preterm had hired people-who Were not Properly trained. On an- other occasion Matson told a patient that it was danger- ous to go into the clinic, that the patient could be seri- 44 The facts are based on Richards' credited testimony To the extent that Matson's testimony is contradictory to the facts found, such testimo- ny is discredited 45 The facts are based on the credited testimony of Levin To the extent that Matson's testimony is a denial of this incident, such testimony is discredited 46 Capital Rubber Go, supra, Firestone Tire Co. supra ously hurt and that Preterm did not know what it was doing. 4 7 Considering the foregoing facts, in context with all of the facts, I am persuaded that Matson engaged in serious misconduct of the type which removed her from the re- medial protection of the Act In making such determina- tion, I do not find that the temporary blocking of Levin to constitute serious misconduct. I do find, however, the statements to the patients that it was not safe to go into the clinic, that it was dangerous to go in the clinic, that the patient could be seriously hurt, and that Preterm did not know what it was doing, constituted serious miscon- duct of such a nature as to remove Matson from the re- medial protection of the Act. In determining that such conduct constituted serious misconduct outside the protection of the Act, I have considered the latitude to be allowed strikers in their rhetoric and whether such statements were with malice or with reckless disregard of the truth. The instant strike involved abortion counselors. There is no basis from the overall facts to reveal that Preterm was not prepared to furnish -proper professional services by doctors and simi- lar professionals for those who desired abortions There is no evidence to reveal a sincere or reasonable belief that any patient was being placed in danger by the serv- ices offered by Preterm. Nor do the facts reveal that "patients" would reasonably construe Matson's remarks as mere rhetoric. Rather, patients attempting to enter an abortion clinic reasonably could be expected to have concern for whether anticipated surgical procedures were unsafe or dangerous It is further clear that Matson and the other strikers should have been aware of such concerns. Under such circumstances, Matson's remarks reveal a reckless disregard for the truth and to be outside the -protective ambit of tolerance to be accorded to strike speech. In sum, the facts reveal Matson's remarks, relat- ing to -dangerous and unsafe conditions, to constitute se- rious misconduct removing- Matson - from the remedial protection of the Act. 6. hi early November 1976, on a morning between 7:30 and 8 a m, Matson encountered nonstriking employ- ee DeAngelis on a subway train. Matson, in a loud voice, told DeAngelis that she was a scab, that she stole employees' jobs, that Levin was "in it for the money," and that DeAngelis was a fool and naive." Considering the above facts, or any contended present- ed version of facts about the incident, I find the facts do not reveal serious misconduct by Matson warranting the removal of the remedial protection of the Act from Matson. 7. In December 1976 Matson and a nonstriking em- ployee named Grace Stead had an altercation on a street in Cambridge, Massachusetts It is clear that the incident was triggered by the individuals' actions, remarks, and respective views relating to the Preterm strike Stead re- 47 The facts are based on- the credited aspects of Levin's testimony Matson's testimony, inconsistent with the facts found, is discredited 48 The facts are based on the credited aspects of DeAngelis' testimony There is little dispute between DeAngelis' and Matson's testimony The ultimate findings of facts would not be affected if either were to be cred- ited in whole or in part or not at all PRETERM, INC 703. ported the incident to Levin and told Levin in effect that Matson was the aggressor and had hit her. Matson credibly testified to the effect that an alterca- tion with Stead occurred and that Stead was the ,agres- sor. Considering the foregoing facts, the report to Levin by Stead constituted evidence to support a good-faith belief of serious misconduct by Matson. Matson's cred- ited testimony, however, reveals that in fact she had not engaged in such serious misconduct as alleged. Accord- ingly, the incident, as a report or not, does not constitute serious misconduct warranting the removal of the reme- dial protection of the Act from Matson. In sum, it has been found that Matson engaged in cer- tain conduct, specifically found herein to constitute seri- ous misconduct removing her from the remedial protec- tion of the Act. Such conduct occurred prior to the Union's March 2, 1977 unconditional offer for the strik- ers to return to work It follows that the Respondent's obligation to reinstate Matson at such time had been eliminated by such serious misconduct and that, there- fore, no backpay is due Matson by the Respondent. e Lillian Pinero The determination has been made that the Union's March 2, 1977 unconditional offer on behalf of the strik- ers to return to work constituted a valid unconditional offer. Considering the foregoing and the pleadings and admissions therein, it is clear that Pinero's backpay period ran from March 3, 1977, to May 26, 1978, if cer- tain alleged misconduct had not removed the remedial protection of the Act from Pinero (1) Misconduct a Richards testified concerning alleged incidents wherein Pinero blocked cars, pounded on cars, and kicked the sides of cars, attempted to kick employees, kicked two employees, and shouted vulgar remarks to persons who were entering the front entrance to Pre- term. The above testimony of Richards did not reach the necessary degree of probativeness to meet "due process" standards necessary for constituting that a specific inci- dent had been litigated. The events allegedly involved occurred 5 years before the trial Richards' testimony as to the alleged incident was generalized, conclusionary, and lacked preciseness as to details The facts are insuffi- cient to establish that Pinero engaged in specific inci- dents of misconduct as suggested by such testimony b On an occasion on the first day or two of the strike, Pinero, around 8 30 a m., encountered a nurse named Rappaport who was attempting to report to work What occurred is revealed by the following credited excerpts from Levin's testimony:49 Q. What did you see? A. One of our new, younger nurses was coming down the street across, this is right near the street, 4 9 The facts are based on the credited aspects of Levin's testimony As to this incident, I found Levin to appear a more frank, forthright, and credible witness than Pinero and Lilliane put herself in front of the nurse And the nurse kept trying to get by her. She was very - slight Q Who was the nurse you are referring to? A. I think her name was Rappaport, Laurie or something Rappaport Q Okay. You said Lilliane Pinero put ,herself front of this nurse? • A. And there was a lot Of Jockeyin ,g and gesticu- lation and talk, but obviously I don't know what the talk was except that the nurse really tried . to move around and Lillie wouldn't let her, and finally grabbed her and shook her. Q. Who grabbed whom? I am not certain . A. Lillie grabbed the nurse and shook her And the nurse started to cry, and at that point I was about to call downstairs to ask someone to get a police person and a policeman intervened and sepa- rated them—or, I should say, asked Lilliane to leave. Considering the above facts, in context with all of the facts, I conclude and find that Pinero, in the described incident, engaged in serious misconduct of such a nature that said misconduct removed_ the remedial protection of the Act from Pinero. c. One morning, early after October 19, 1976, Pinero damaged a car as it went through or by the picket line. On such occasion, Levin was a passenger in such vehi- cle. As the car passed Pinero, Pinero kicked the side of the car and dented the side, to such an extent that it had to be repaired 50 Considering the above facts, in context with all of the facts, I conclude and find that Pinero, in the described incident, engaged in serious misconduct of such a nature that said misconduct removed the remedial protection of the Act from Pmero d On another occasion, within the first 3 weeks after October 19, 1976, Pinero damaged _another car as it crossed the picket line. On this occasion, 'DeAngelis was a passenger in such car. Pinero was on the right side of the car and kicked the right side of the automobile as it passed. As a result Pinero caused a dent in the side of the car 51 Considering the above facts, in context with all of the facts, I conclude and find that Pinero, in the described incident, engaged in serious-misconduct of such a nature that said misconduct removed the remedial protection of the Act from Pinero e. On the first day of the strike, October 19, 1976, Nora Watts, a Preterm nurse, was in a car, around 5 50 The facts are based on the credited aspects of the testimony of Levin As to this Issue, Levin appeared a thoroughly frank, forthright, and truthful witness Pinero's testimonial denial of this incident did not have the persuasiveness of truth I credit Levin's testimony over Pinero's testimony where in conflict Si The facts are based on credited aspects of the testimony of DeAnge- lis I credit DeAngelis' testimony over Pinero's, as to the facts found, where there is dispute DeAngelis also credibly testified to the effect that Pinero engaged in strike rhetoric at the time I do not find DeAngelis' testimony to be of probative value to establish that Pinero blocked cars or that other similar incidents occurred 704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD p.m., leaving work. On such occasion, Pinero and a number of pickets surrounded the car and impeded its progress for several minutes. Pinero pounded on the window of the automobile and screamed. 52 Watts was "frightened" that the window would break. Considering the above facts, I am persuaded that the evidence is insufficient to establish that Pinero, as to the described incident, engaged in serious misconduct war- ranting the loss of remedial protection of the Act. Simi- lar to much of-the testimony in this case, the evidence is of insufficient probativeness to determine that miscon- duct, if it occurred, reached the degree of serious mis- conduct warranting loss of remedial protection of the Act. Watts and other witnesses used general descriptive terms of blocking, pounding, and screaming. The overall testimony does not reveal that the car was blocked for more than an insignificant amount of time There is no evidence that the pounding caused any damage. And thefe is no indication that the screaming was more than strike rhetoric f The Respondent appears to have presented another alleged incident in support of its contentions that Pinero engaged in serious misconduct which was Considered in its refusal to reinstate Pinero. Thus, the Respondent pre7 sented testimony by ,Makaretz relating to an alleged inci- dent on the first day of the strike. Makaretz testified to the effect that she and several nurses, including a nurse named Sandra White, were in a car on October 19, 1976, around 7:30 a m., that Pinero jumped on the hood of the automobile as it entered into Preterm's hack parking lot, that Pinero started pounding on the windshield, and that Pinero was yelling "scab" and "son of a bitch." The general and conclusionary quality of the testimo- ny has insufficient .probative value to reveal that the con- duct of jumping on the hood and pounding on the wind- shield constituted serious misconduct. It is clear that the alleged language did not constitute serious misconduct. Assuming the facts to reveal serious- misconduct by Pinero, the facts are insufficient .to reveal that the Re- spondent considered such alleged misconduct in its fail- ure to reinstate Pinero from March 3, 1977, to May 26, 1978.- Makaretz testified to the effect that she reported this incident to Richards. Richards' and Levin's testimo- ny, however, is of such a nature that the necessary tie in of the,incident as a reason for the Respondent's failure to reinstate Pmero has not been made. Finally, Makaretz'. overall testimonial appearance was of such a nature that it is not more persuasive as to the establishment of facts than Pinero's denial. Considering all of the foregoing, the facts do not reveal that Pinero, in the described alleged incident, en- gaged in serious misconduct of such a nature that said Misconduct removed the remedial protection of the Act from Pinero. g. Richards and Levin credibly testified in composite effect that, in determining not to reinstate Pinero, they took into consideration a published article wherein Pinero had stated that at Preterm she was forced to en- co-urage Spanish-speaking women to be sterilized. This article appeared in a Spanish-American Newspa- per entitled Community News, in a March 1977 Issue. A • story, "A Preterm Worker Explains the Strike," con- tained an interview with Pinero. The story quoted Pinero as saying: On two different occasions I was asked to push sterilization on Spanish-speaking women. Once this had been suggested by an administrator, who hadn't even seen the individual woman's chart I guess it was assumed Spanish-speaking women just had too many children. I was outraged. The facts reveal that the Respondent's policy is not to push sterilization on Spanish-speaking women and that Pinero was aware that it was not the Respondent's policy to push sterilization on Spanish-speaking women. Testimony was presented by Pinero and by Rosoff as to the Respondent's policy and as to the apparent basis or lack of basis for support of the facts asserted in the article. Suffice it to say, I am persuaded that the overall facts reveal that Pinero made the statements asserted, that they were incorrect, that they were not, however, made with malice or reckless disregard. Considering the tolerance to be allowed strike rheto- ric, the fact that the article was clearly set forth in a strike context, I am persuaded that the facts do not reveal that Pinero, by such statements, engaged in seri- ous misconduct of such a nature as to remove the reme- dial'protection of the Act from her. 5 3 (2) Conclusions In sum, it is concluded and found that Pinero's engage- ment in certain specific serious misconduct, as previously set forth, removed the remedial protection of the Act from her, and the Respondent was not obligated to rein- state Pmero on March 2, 1977, and thereafter, because of such misconduct, and that such misconduct and the Re- spondent's reliance thereon tolled any backpay period- as of March 2, 1977. f. Elizabeth Reeves The determination has been made that the Union's March 2;1977 unconditional offer on behalf of the strik- ers to return to work constituted a valid unconditional offer. Considering the foregoing and the pleadings and admissions therein, it is clear that Reeves' backpay period ran from March 3, 1977, to May 19, 1978, if cer- tain alleged misconduct had not removed the remedial protection of the Act from Reeves. (1) The misconduct a. The strike commenced on October 19, 1976. On one of the first days of the strike, Reeves ran into the recep- tion area family room At the time there were around 15 persOns in the room. Some of these persons were em- ployees, patients, and friends or families of patients. 52 The facts are based on the credited testimony of Watts I credit Watts' testimony over Pinero's where such testimony is in conflict 53 See Firestone Tire Co. supra, Capital Rubber Co. supra PRETERM, INC. 705 Reeves told those who were there that they should get out and leave, that it was a dangerous place to be, that there was no one capable of handling any kind of medi- cal care. 5 4 ,Considering the foregoing facts, I conclude and find that such conduct constituted serious misconduct which removed Reeves from the remedial protection of the Act. For reasons expressed . with regard to similar , mis- conduct by another striker, such conduct constituted a reckless regard for the truth and took such speech out- side the ambit of tolerance normally utilized in evaluat- ing strike speech.55 b. Levin testified to the effect that she was present on another occasion when Reeves made similar remarks to patients. Levin also testified to the effect that she also rev, ceived some reports from patients that Reeves had made similar remarks. From my consideration of Levin as she testified and her testimony as a whole, I am persuaded that her testi- mony referred to above is not reliable to establish a spe- cific incident. Accordingly, such, evidence is insufficient to establish serious misconduct of the type to remove Reeves from the remedial protection of the Act. c On a morning within a month after October 19, 1976, an employee named,Ravech rode to the Preterm premises in a bus. After arriving at Preterm, Ravech and other employees left the bus and proceeded to walk through the picket line What occurred is revealed by the following credited excerpts from Ravech's testimo- ny. 5 6 Q. Okay, what happened then? A. As I walked past Becky Reeves, who . was in the front row, she put out her foot as if she—she was trying to trip me And she did . not trip me, but she ended up really kicking me in the shins very hard. Q. Did the kick leave any mark or anything? A. I was quite black and bltie after that. Ravech later reported this incident' to Levin and Rich'- ards Some of Levin's and Richards' testimony seems to suggest that they discussed all employees, their personal recollection of misconduct, and reports from staff and patients as to misconduct of strikers. Their testimony, however, is extremely muddled' and appears to be in an-- swers to questions about specific strikers. I am not per- suaded that the evidence as a whole warrants a finding that Levin and Richards considered -the incident of Reeves kicking Ravech as an incident of serious' miscon- duct as part of the reasoning to refuse to reinstate Reeves. The issue of serious misconduct and the refusal to rein- state Reeves was litigated on the basis that the Respond- ent was relying only on the serious misconduct which constituted a part of the reasoning for the refusal to rein- 54 The facts are based on a composite of the credited aspects a the teS.timony of Levin and Richards I discredit Reeves' denial that she en- gaged in such misconduct " Restaurant Hortkawa, 260 NLRB 197 (1982) 56 I found Ravech to appear to be a more credible witness than Reeves and credit her testimony over Reeves' vhere there is conflict state Reeves. This being so, the Respondent has not es- tablished that the incident involving the kicking of Ravech had a bearing upon the failure to reinstate Reeves. Since I find that Reeves has engaged in serious misconduct of another type, removing her from the re- medial protection of the Act, I do not find it necessary to determine whether this misconduct, the kicking of Ravech, warrants the denial of backpay to Reeves. d. On three or four occasions during a 2- or 3-week period, Reeves impeded the movement of cars entering the Preterm parking lot. On such occasions, Reeves stood in front of the cars. Such cars either stopped or slowed almOst to a standstill and then inched slowly ahead. As the cars moved slowly ahead, Reeves pounded on the hoods. 5 7 Considering the foregoing facts, in context' with all of the facts in this case, I do not find that the facts as to these incidents reveal serious misconduct of such a nature as to remove Reeves from the remedial protection of the Act. ' (2) Conclusions The sum of the, facts relating to Reeves' misconduct during the strike reveals serious misconduct relied on by the Respondent in denying reinstatement to Reeves and that such misconduct during the strike constituted seri- ous misconduct which removed Reeves from the remedi- al protection of the Act." Such conduct occurred before the March 2, 1977 unconditional offer by the Union for the hrikers to return to work. Therefore, the Respondent's remedial responsibility to Reeves of rein- statement and backpay had been eliminated by such mis- conduct. Accordingly, it is determined that the Respond- ent owes no backpay to Reeves. - g. Louise Rice The determination has been made that the Union's March 2, 1977 unconditional offer on behalf of strikers to return to work constituted a valid unconditional offer. Considering the foregoing and the pleadings and admis- sions therein, it is clear that Rice's backpay period ran from March 3, -1977, to May 27, 1978, if certain alleged misconduct had not removed the remedial protection of the Act from Rice '(1) The alleged misconduct a. Levin and Richards testified in composite effect that they relied on reports from staff concerning misconduct by Rice in denying reinstatement to Rice. These reports related to Rice's picketing of employees' homes, follow- ing employees home in her car, and transporting patients to other clinics and making defamatory remarks about the Respondent's clinic. In connection with the conduct referred to in the above "reports," the unfair labor prac- tice complaint against the Union and the 10(j) petition 57 The facts are based on the credited aspects of the testimony of DeAngelis I discredit the , testimony of Reeves to the extent inconsistent with the facts fund I found DeAngelis to appear to be a more frank, forthright, and truthful appearing witness as compared to Reeves 58 see sec above 706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD filed by the General Counsel averred that Rice and others had, on October 27, 1976, followed nonstriking employees to and from work in their automobiles. The only direct evidence presented with respect to alleged misconduct by Rice was the testimony of Makaretz. Makaretz testified to the effect that she had an meow': ter with Rice on a Saturday, several weeks after October 19, 1976, that she was with a Dr. Borman and a Dr. Levy, that Rice was with a group of stnkets at the Pre- term back entrance. Makaretz testified that Rice yelled' to her and the physicians. What Rice allegedly said is re- vealed by the following excerpts from Makaretz' testimo- ny: Q What specifically happened in that incident in- volving Louise Rice? A. We were walking through the back parking lot and we were sort of heading toward the second—the one to the back entrance, and there was a group of strikers at the first entrance, and Louise Rice was at the head of them. She yelled very, very loudly to us, "You must be very proud of that, what you are doing." And the remark was directed to the doctors. "You call yourselves doc- tors, and you must be proud to be the murderers" Q. That last statement, can you tell me—let me make sure I have it right. "You call yourselves doc- tors You must be proud—?" A. "—proud of what you are doing to be mur- derers." Rice credibly testified that she (1) had not engaged in the misconduct as had been reported to Levin and Rich- ards, (2) had not followed * employees as they entered or left Preterm's premises, (3) had not picketed employees' or supervisors' homes during the strike, and (4) had not made the remarks to Makaretz and the physicians as at- - tributed to her by Makaretz. 59 - - (2) The net backpay Considering the foregoing, the pleadings, and the ad- missions therein," I find the backpay due Louise Rice to be as follows: CALENDAR QTRS. NET BACKPA Y 19774 $ 534 79 1977-H 1680 73 1977-III 1744.65 1977-IV 1065.32 19784 • 195.42 1978-II • 124.30 52 I credit Rice's testimony over Makaretz' as to whether 'Rice made the remarks attributed to her by Makaretz The overall facts revealed Makaretz to be less than objective and an unreliable witness As to the other alleged incidents, the testimony as to reports was extreihely general and conclusionary Considering the quality of all the facts, I found Rice's testimony to have the ring of truth Rice's testimonial demeanor was that of a forthright, frank, and honest witness 60 With minor corrections concerning inadvertent erroneous computa2 lions and with Interest as indicated later h. Catherine Walker The determination has been made that, the Union's March 2, 1977 unconditional offer on behalf of the strik- ers to return to work constituted a valid unconditional offer. Considering the foregoing and the pleadings and admissions therein, It is clear that Walker's backpay period ran from March 3, 1977, to May 26, 1978, if cer- tain alleged misconduct had not removed the remedial protection of the Act from Walker. (1) The misconduct a. On the first day of the strike, October 19, 1976, Walker spat on Susan Kell, the assistant to the treasurer at Preterm, as Kell went through the picket line when leaving work Thus, on the first day of the strike, around 4.15 p.m., Kell, and two others connected With Preterm, left work and were walking by or near Catherine Walker and 15 or 20 pickets on the front sidewalk. -On such oc- casion, Walker yelled at Kell, called her a "scab," and asked how she could keep working there. Walker spat at Kell and hit Kell on the right cheek and chin and across the front of her jacket." Considering the above facts, in the context with all of the- facts relating to Walker's misconduct, I conclude and find that the spitting on Kell constituted serious miscon- duct removing' Walker from the remedial protection of . the Act. I would not' find the language or remarks used by Walker to constitute misconduct. Nor would I find that one instance of spitting at a person by a striker to constitute serious misconduct warranting the, removal of the remedial protection of the Act from Walker. Howev- er, considering the overall facts, I am persuaded that the act of spitting was not a spontaneous act and was not an exercise of animal exuberance Rather, the facts reveal other instances of spitting at employees or personnel of Preterm by Walker. Thus, .in .total context, I conclude and find that the act of spitting on Kell constituted seri- ous misconduct which removed the remedial protection of the Act from Walker. 6 2 b One morning around 8 a m, on a day in mid- to late-November 1976, Walker, while picketing with others, spat at but did not hit Donna DeAngelis, a non- striking employee At the time DeAngelis had been going to work and was on the front.steps of Preterm." Considering the above facts, I conclude and find that Walker engaged in serious misconduct which removed the remedial protection of the Act from Walker. Consid- ering the. overall facts, I am persuaded that the act of spitting was not- a spontaneous act and was not an exer- cise of animal exuberance. In context with the other acts of spitting at employees or personnel of Preterm, I con- clude and find that Walker's spitting at DeAngelis con- Si The facts are based on a composite of the credited testimony of Kell and Richards I credit Kell's and Richards' testimony over that of Walker on this point Kell's testimony was also to the effect that later she was lightly bumped by Walker as she went through the picket line It is clear that such touching was accidental I do not believe that Walker, who was pregnant, would use her stomach as an offensive weapon 62 Cf Sea View Industries, 127 NLRB 1402 (1960) 63 The facts are based on credited testimony of DeAng elis I credit DeAngelis' testimony over Walker's where in conflict PRETERM, INC 707 stituted serious misconduct which removed the remedial protection of the Act from Walker. c DeAngelis testified to the effect that there were other incidents of spitting by Walker, one of which oc- curred several weeks after the one set out above It is sufficient to say that I do not find DeAngelis' testimony as to such incident to reveal such sureness of detail as to warrant a finding of a specific incident. d On a -morning during the first couple of weeks after October 19, 1976, Walker spat on Leslie Bernstein, a su- pervisor, as she went through the picket line around 7-30 a.m Bernstein had been transported to work in a private schoolbus. When Bernstein left the schoolbus to go to the front door of Preterm, Walker was with other pick- ets. Walker yelled to Bernstein that she was stealing'her job. Walker spat at Bernstein. Bernstein had put her hand up, and the spit hit Bernstein's hand. Bernstein pushed Walker in the face with her hand.64 For reasons previously set forth, I conclude and find that the above incident constituted serious misconduct of such a nature that the remedial protection of the Act was removed from Walker. e. In October 1976, the Respondent was considering the employment of Janice Irvine as an assistant to the co- ordinator of counseling. Fembloom, the coordinator of counseling; did not want to make a decision about the as- sistant to her position As a result, Irvine was hired as a consultant and commenced answering the telephone and interviewing people for work. After the strike started, on October 22, 1976, around 5 30 p m., Irvine was leaving from work and headed for her automobile Walker and Weinberg approached Irvine and yelled at her. Irvine turned around and headed back to' the Preterm clinic. Around this time Weinberg placed her hand on Irvine's arm." Assistant Director Richards saw the above incident. Later, Richards, Irvine, and a lawyer appeared to have -discussed the events. It appears that several days later Irvine signed a statement relating to the incident referred to above. In any event, around November 18, 1976, Irvine signed a sworn statement containing the follow- ing _On Oct 22, approx 5:30 p.m., I left Preterm to walk to my car A few people yelled "scab" and "how does it feel to be training scabs ?" I kept walk- ing, and when I got to the curb, Katherine Walker ran up to me and grabbed my arm. She asked me if I was working at Preterm. I -ignored her and tried to keep walking but she wouldn't let me go. An- other woman (Susan Weinberg) came up to me and grabbed my other arm. They both started shoving me and yelling "scab" and various obscenities. After 3-4 minutes a policeman came up and told them to leave me alone. He began to walk me to my car. and the two women walked along yelling that "they 64 The facts are based on a composite of the credited aspects of Bern- stein's, Richards', and Walker's testimony I discredit the aspects of any of the testimony of the witnesses inconsistent with the facts found 65 The facts are based on the credited aspects of the testimony of Irvine, Richards, Walker. and Weinberg The testimony of any witness inconsistent with the facts found is discredited would find me and get me" They continued threat- ening me and I decided not to go to my car. I in- formed the policeman that I would not go to my car with the women following . me. They (the Women) said that they would wait six months if they had to. We began to walk back to the clinic and they kept yelling at me I had to leave the clinic by car Janice Irvine The above statement is true to the best of my knowledge and belief. Janice Irvine Sworn to and subscribed before me this eighteenth (18) day of November 1976 in Brookline, MA. Jonathan S R. Beal ' Examiner NLRB It also appears that some sort of legal complaint was filed relating to the incident, some type of hearing (infor- mal or otherwise) was held, and the complaint was dropped. Considering the testimony of the witnesses and all of the facts, the facts are insufficient to reveal that Walker or Weinberg engaged in misconduct during this alleged incident The only evidence of any real value as to this incident consists of those facts previously set forth as based on the testimony of Irvine, Richards, Walker, and Weinberg. I note that Richards initially testified that Weinberg physiCally took hold of Irvine. Later, a leading question was propounded on the Postulation that Wein- berg had physically restrained Irvine. Richards' further testimony was simply that Weinberg had her hands on Irvine's arms. I also note that Irvine appeared to have a sufficient recall of the events. I am not persuaded that her failure to testify in more detail is a result of loss of memory. It would appear that Irvine either did not want to testify to the events' because she, at the time of the trial, had become friendly with the former strikers, or did not want to testify to the events because the alleged facts in the written statement were not true. In any event, the statement prepared for litigation has an aura of unreliability Further, even if the statement as .written were true, I am persuaded that the facts as to this inci- dent do not reveal serious misconduct of a nature to remove the remedial protection of the Act from Walker or Weinberg. f. The Respondent in its brief asserts facts as revealed by the following excerpts from the Respondent's brief. Ms. Levin testified that on four or five occasions during the first several weeks of the strike, Ms. Walker yelled obscenities like "go to hell, fuck you, you're a piece of shit" at her through the garage grating. She also threatened her that "we'll get you" and "you'll be sorry" [Tr. 1079-81.] Ms. Levin testified that toward the end of Octo- ber, 1976, she observed Ms. Walker in the front of Preterm one morning tell a patient who was trying to enter Preterm that Preterm was not providing any patient care. When the patient still tried to 708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD enter, Ms Walker physically blocked her progress, to the point of pushing her back. Finally, when the patient became upset, a policeman intervened and escorted the patient in. [Tr 1082-88 ] It suffices to say that I did not find Levin's testimony in support of these contended facts to appear objective or reliable to establish litigated incidents g In February 1977, Walker was involved in an inci- dent with Levin and Lansky on the subway What oc- curred is revealed by the following credited excerpts from Levin's testimony:66. She came over, stood over us, started to yell and scream and say how irresponsible we were and what a disgrace the clinic was. Aren't we ashamed to be seen in public, what a terrible thing we were doing to womankind. Don't we have any sense of responsibility, how long do we think we can get away with this. Considering the tolerance in rhetoric in strike situa- tions, the above facts do not reveal serious misconduct of a nature to remove the remedial protection of the Act from Walker.67 h. In addition to the above incidents, the Respondent alludes in his brief to certain conduct alleged to have been engaged in by Walker as asserted in a complaint issued by the General Counsel Walker denied having en- gaged in such misconduct. I find Walker's denial to be credible in such denial of allegations unsupported by tes- timony of evidence otherwise Further, evidence as to such incidents is not sufficiently tied up so as to be re- vealed to constitute a part of the Respondent's refusal to reinstate Weinberg during the period of time March 3, 1977, to May 26, 1978. (2) Conclusions In sum, it is concluded and -found that Walker's en- gagement in certain specific serious misconduct, as previ- ously set forth, removed the remedial protection of the Act from her, and the Respondent was not obligated to reinstate Walker on March 2, 1977-; and thereafter, be- cause of such misconduct, and that such misconduct and the Respondent's reliance thereon tolled any backpay period as of March 2, 1977. i. Susan Weinberg The determination has been made that the Union's March 2, 1977 unconditional offer on behalf of the strik- ers to return to work constituted a valid unconditional offer. Considering the foregoing and the pleadings and admissions therein, it is clear that Weinberg's backpay period ran from March 3, 1977, to May 27, 1978, if cer- tain alleged misconduct had not removed the remedial protection of the Act from Weinberg. 66 The facts are based on credited aspects of Levin's testimony I credit Levin over Walker as to this incident 67 W C McQuatde, Inc , 220 NLRB 593 (1975) (1) The alleged misconduct a The incident of the alleged misconduct involving Janice Irvine has previously been set forth and discussed in the section concerning alleged misconduct by Walker. Suffice it to say, for the reasons previously set forth, the facts do not reveal that Weinberg engaged in misconduct in such incident b There is a pharmacy, not a part of the Respondent's enterprise, located in the same building as the Respond- ent (Preterm). One morning Richards was in the pharma- cy Weinberg came into the pharmacy Richards testified to the effect that Weinberg screamed and yelled at her. Richards' testimony. as to what was said appeared to be largely a characterization of what was said rather than what actually was said. Such testimony was essentially as is revealed by the following excerpts from Richards' tes- timony. Q Would you please describe, therefore, to the best of your memory, what she said to you? A. I don't remember the precise words. - - Q Do you remember the topic of her conversa- tion, if you will A. Well, it was, as I said, that I was an idiot, and basically a rotten person, and screaming There were other people in the pharmacy. I was up at the counter She came up to the counter, so that I felt some physical intimidation, in terms of the manner in which she was doing this It suffices to say that I did not find Richards' testimo- ny to be of probative value so as to offer a basis for real factfinding Assuming the details to be as indicated, how- ever, such facts do not reveal serious misconduct by Weinberg The premises were not Preterm's premises The language used, considering the tolerance given to strike rhetoric, clearly does not reveal serious miscon- duct. In sum, the incident is not established to be serious misconduct of such a nature as to remove the remedial protection of the Act from Weinberg c. Levin testified to a number of occasions wherein Weinberg allegedly yelled profane and vulgar remarks at her, threw pebbles or paper wads at her and belittled the clinic. Levin also testified to certain reports concerning Weinberg ' Levin's testimony as a whole, relating to the "miscon- duct" by Weinberg, did not appear objective or specific. In effect, I am not persuaded, under standards of due process, that specific Incidents could be said to have been litigated. However, assuming specific incidents to have been litigated, the facts do not reveal serious mis- conduct by Weinberg The language used is not to be ad- mired. However, considering the tolerance accorded strike rhetoric, _Weinberg's remarks do not reveal serious misconduct. There were "reports" concerning Wemberg and the harassment of employees by- usage of the telephone. I credit Weinberg's denial that she made the alleged har- assing telephone calls. d A few weeks after October 19, 1976, Weinberg and DeAngelis, a nonstriking employee, had an encounter in PRETERM, INC 709 Preterm's back parking lot 68 DeAngelis had ridden to work with another employee named Flink.. After Hulk had parked her automobile, DeAngelis got out of the automobile and started to leave. At such time, DeAngelis encountered Weinberg who was standing between Milk's automobile and the automobile which was parked adjacent to DeAngelis' automobile Because of the loca- tion of the automobile and a fence, Weinberg's position was directly in the way that DeAngelis had to go in order to proceed to work Weinberg, in a loud and yell- ing tone, argued with DeAngelis about DeAngelis' con- tinuing to work during the strike DeAngelis, in effect, asked Weinberg to move and let her pass by Weinberg did not move and continued to argue with DeAngelis. DeAngelis asked Plink to go to get someone. Flink left and returned shortly with a security guard. The security guard spoke to Weinberg and then escorted Weinberg away. The total encounter covered only 5 or 6 minutes. Considering all of the foregoing, I conclude and find that the described incident did not constitute serious mis- conduct of the type that removed the remedial protec- tion of the Act from Weinberg. There is no evidence of physical touching or threats. Rather, the facts indicate a degree of animal exuberance in communications.69 (2) Conclusions In sum, the facts do not establish that Weinberg en- gaged in serious misconduct of such a nature as to remove the remedial protection of the Act from her. Considering the determination of the issues herein, the pleadings and admissions therein, it is clear that the back- pay7° due Weinberg is as follows: CALENDAR QTRS. NET BACKPAY 19774 $ 554.40 197741 1742.40 1977-111 692.98 1 9774V 202 67 19784 202.67 197841 124.72 j. Jean Williams The determination has been made that the Union's March 2, 1977 unconditional offer on behalf of the strik- ers to return to work constituted a valid unconditional offer. Considering the foregoing and the pleadings and admissions therein, it is clear that Williams' backpay period ran from March 3, 1977, to May 26, 1978, if cer- tain alleged misconduct had not removed the remedial protection of the Act from Williams. 68 The facts are based on DeAngelis' credited testimony I found DeAngelis to appear a more credible witness than Weinberg on this Issue I discredit Weinberg's testimony contradictory of the facts found Again, I note counsels' and the parties' difficulties in establishing events within a reasonably accurate time period The incident Involved herein is of such a nature that Weinberg would clearly be aware of the same 69 Ii is not established that this incident constituted a part of the Re- spondent's reason for refusing to reinstate Weinberg from March 3, 1977, to May 26. 1978 Furthermore. It is clear that such conduct did not render Weinberg an unsuitable employee 7 ° With interest thereon as indicated later herein (1) The alleged misconduct a There was an ,incident that occurred during the first few days after October 19, 1976, where Jean Williams temporarily blocked the Movement of someone who was on Preterm's staff and who was attempting to enter into Preterm's_front entrance. 7 1 Considering the above facts, or facts assumed if Levin's testimony were credited in all aspects, the facts of Williams' bumping or blocking' of a staff person for a few moments, does not constitute serious misconduct of such a nature as to remove the remedial protection of the. Act from her. b. Levin testified concerning an alleged article about abortions written by Williams - and published in a woman's magazine in February 1977 Levin's testimony about the article was in generalities as revealed by the following excerpts from her testimony. Q. What is your best memory as to what it is she said concerning Preterm? A. My best memory is that it talked about how Preterm abuses the rights of women in that we do not give them the opportunity to make decisions, that it is in essence forced upon them. The above article was not presented in evidence. Ap- parently the Respondent could not locate such article at time of trial. Williams denied that she had written said article. I found Williams to appear to be a truthful witness. I credit Williams' denial that she had written- the referred- to article. I discredit Levin's testimony to the extent that it can be construed to the effect that Jean Williams wrote and signed the article testified to by Levin Considering all of the facts referred to above, I am persuaded that the facts do not establish that Williams engaged in serious misconduct by writing for publication an article on abortion Assuming Levin's testimony to be correct insofar as establishing that Williams wrote an ar- ticle on abortion,' Levin's testimony is of such a general nature that it is not sufficient to establish the precise facts needed to support a finding of serious misconduct of such a nature as to remove the remedial protection of the Act from Williams. c. Levin also testified that she received reports con- cerning Williams' misconduct and that such reports con- stituted part of the basis for denial of reinstatement to Williams on and after March 3, 1977. Levin's testimony as to such reports was generalized and imprecise. I found Williams to be a truthful appearing witness and credit her denial that she engaged in such alleged misconduct. 71 The facts are based on the credited aspects of Levin's testimony Much of Levin's testimony was conclusionary and general in nature I discredit Levin's testimony to the extent that It can be Interpreted to indi- cate facts different from the facts found I am persuaded that Williams attempted to testify truthfully I am also persuaded that the incident de- scribed herein was so insignificant that Williams would not have con- strued it to be a blocking incident and would with reasonable probability have forgotten the same Williams appeared surprised by the allegations of misconduct If one had not engaged in misconduct; such surprise is reasonable 710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Considering the above facts, I conclude and find that the facts do not establish that Williams engaged in seri- ous misconduct of such a nature as to remove the reme- dial protection of the Act from her. Even in the absence of credited t:, stimony by Williams, I would not find Levin's testimony of sufficient probative value to estab- lish a good-faith objective belief that Williams had -en- gaged in specific acts of serious misconduct. (2) Conclusions In sum, the facts do not establish that Williams en- gaged in serious misconduct of such a nature as to remove the remedial protection of the Act from her. Considering the determination of the issues herein, the pleadings and admissions therein, it is clear that the back- pay72 due Williams is as follows: CALENDAR QTRS. NET BACKPAY 19774 $ 582.12 197741 1829.52 1977411 1891.89 1977-IV 1439.11 k. Miscellaneous The Respondent also presented other evidence (con- cerning the employees denied reinstatement' because of alleged misconduct) apparently relating to misconduct. It is not clear that such other alleged misconduct was con- sidered as part of the reasons for failure to reinstate the employees discussed herein. In any event, such ,other al- leged misconduct does not constitute serious misconduct of the type to remove the remedial protection of the Act from the striking employees. Such conduct, as an exam- ple, involved striking employees engaging in chanting or picketing away from Preterm premises, on the street, or at homes of nonstriking employees or supervisors. Such conduct -mainly consisted of strike rhetoric and picketing. Considering the tolerance to be allowed strike rhetoric, such conduct does not approach the degree of serious misconduct of the type that removes the remedial pro- tection of the Act from striking employees. On these findings of fact and conclusions of law and on the entire record; I issue the folloWing recoMmend- ed73 ORDER The Respondent, Preterm, Inc., Brookline, Massachu- setts, its officers, agents, successors, and assigns, shall pay the individuals named below, 74. a sum of money equal to a composite of the sums indicated as due on a quarterly basis to such individuals, plus interest thereon accruing with the last date of each such quarter and con- tinuing to date of payment, minus such deductions as 72 With interest added thereto as indicated later herein 73 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 74 In the case of Azarmh Phipps and Claudia Bostick, payment shall be made into escrow funds and .ultimate disposition of such payments shall be as set forth above in sec C, 3 may be required by Federal or state law and which are appropriately paid to such governments.75 CALENDAR QTRS. NET BACKPAY Kathryn Alexas Adams 19774 $ 625.93 1977-11 1967.19 1977411 1564.80 'Rena Baskin 19774' 549.40 1977-11 1726.69 1977411 '1474.55 1977-IV 852.55 1978-1 672.33' 1978-11 315.35 Claudia Bostick 1977-1 450.24 1977-11 • 1415.04 1977-111 1536.47 1977-IV ' 283.66 Sandra Brody 19774 214.33 1977-11 576.59 1977,111 696.54 1977-IV 246.47 Betsy. Budd 1977-1 772.84 1977-11 1310.42 1977411 787.12 Ann Chroms 19774 1977-11 1977-111 Susan Cohn 19774 1977-11 1977411 Elizabeth Cone (O'Connell) - 19777111 Janice Dawe 19774 197741 1977-111 1977-IV Alice Fine 1977-1 1977-11 • 90.00 240.60 221 34 708.08 638.19 160.35 11.46 206.89 650.22 674.95 249 83 108.64 369.28 75 with respect to Interest computations, see Florida Steel Corp, 231 NLRB 651 (1977), and ins Plumbing Co, 138 NLRB 716 (1962) PRETERM, INC 711 1977-111 450.62 Elizabeth Phillips Nancy Harmon 1977-11 522.93 1977-1 305.63 Azariah Phipps 1977-11 960.57 1977-111 317.33 1977-1 462 00 1977-IV 578.47 - 1977-11 1452.00 1978-1 620.49 1977-111 518 81 1978-11 381 84 1977-IV 751.87 Carolyn Jones (LaFleur) Amy Present 1977-1 138.60 1977-1 140.44 1977-11 435.60 1977-11 147 14 1977-111 459.10 1977-IV 472.94 Chlorae Prince 1978-1 472.94 1978-11 472.94 1977-1 145.53 1978-111 434.34 1977-11 152.46 1978-IV 454.20 Judith Rice 1979-1 496.60 1979-11 524.08 1977-1 727.65 1979-111 366.43 1977-11 2305.09 Cynthia Jones 1977-111 2483.13 1977-1V 2303 13 1977-1 145.53 1978-1 191.01 1977-11 126.29 1977-111 151.32 Louise Rice 1977-IV 6.98 1977-1 534.79 Kathleen Kelley 1977-11 1680.73 1977-1 1977-11 1977-111 515.60 1602.29 1378 78 1977-111 1977-IV 1978-1 1744.65 1065.32 195.42 1977-IV 63.64 1978-11 124 30 Vivian Kemp Harriet Ruffen 1977-1 252.25 1977-11 183.58 1977-11 724.08 1977-111 608.15 1977-111 785.73 1977-IV 376 55 1977-IV 675 34 Gail Shulman Joan Levine 1977-1 526.68 1977-1 383.71 1977-11 1680 36 1977-11 1205.96 1977-111 1637.81 1977-111 222.94 1977-IV 52 63 1977-IV 30.71 Paula Spires Paula Murray 1977-1 551.25 1977-1 630.12 1977-11 166 09 1977-11 1383 79 1977-IV 12 88 1977-111 77.72 1977-IV 109 20 Phyllis Sweet Frances Newcombe 611.18 1977-1 1977-11 300.09 574.87 1977-11 1977-111 1920.84 1973.95 1977-111 33.22 Ann Wax (Loeb) Anne O'Leary 1977-1 312 35 1977-1 5.45 1977-11 624.70 1977-11 570 712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Susan Weinberg 1977-I 554.40 1977-11 1742.40 1977411 692.98. 1977-IV 202.67 1978-I 202.67 1978-11 124.72 Jean Williams 1977-I 582.12 1977-11 1829.52 1977-III 1891.89 1977-IV 1439.11 IT IS FURTHER RECOMMENDED that the backpay speci- fications be dismissed for employees for whom backpay is not specifically recommended.