Every Woman'S Place, Inc.

EVERY WOMAN'S PLACE Every Woman's Place, Inc. and Cathee Doran. Case 7-CA-20797 11 December 1986 DECISION AND ORDER BY CHAIRMAN DOTsoN AND MEMBERS JOHANSEN ANID STEPHENS On 19 September 1983 Administrative Law Judge Donald R. Holley issued the attached deci- sion. The Respondent filed exceptions and a sup- porting brief, and the General ' Counsel filed a brief in support of the judge's decision. - The National Labor Relations Board has delegat- ed its authority in this proceeding 'to a three- member panel. The Board has considered the decision and the record in light of the exceptions- and briefs and has decided to affirm the judge's rulings, findings, l and conclusions and to adopt the recommended Order as modified. Contrary to our dissenting colleague, we are not repudiating the rationale of Meyers2 in concluding that employee Cathee Doran's telephone call to the Wage and Hour Division of the U.S. Department of Labor was sufficiently (linked to group activity to constitute "concerted" activity within the mean- ing of Section 7 of the Act. We note the judge's finding, supported by the credited testimony of Doran and the Respondent's former acting director Michael Tardani, that during at least several weeks before Doran made that telephone call she and two fellow employees had brought the matter of over- time compensation for holidays to Tardani on at least four or five occasions. That Tardani was treating this as more than just a complaint of Doran's is indicated by his testimo- ny that, after approaching the new chief manage- ment officer, Beverly Geyer, with the employees' complaints, he "went [back] to them" with the news that the matter was "`being investigated." Al- though Doran made the subsequent telephone call on her own, she made it because "we had -no re- sponse" (emphasis added) on the complaint. The call was a logical outgrowth of the original protest by all three employees. i 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 Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. 2 Meyers Industries, 268 NLRB 493 (1984), remanded sub nom. Frill v. NLRB, 755 P.2d 941 (D.C. Cir. 1985), cert. denied 106 S.Ct 313, 352 (1985), reaffirmed 281 NLRB 882 (1986). Member Johansen, who did not participate in Meyers, agrees that Meyers and similar decisions are distin- guishable. 413 Unlike employee Prill in Meyers, who it was found, was simply registering complaints about his own truck and never made common cause with any fellow employee with ' similar complaints, Doran was seeking information because she and fellow employees had received no response to their common complaint . As a continuation of protected activity, her conduct was concerted within the meaning of Section 7 of the Acts It is immaterial that she was not following express instructions from the other employees in doing so. It was spe- cifically noted in Meyers that, where the record showed the existence of a group complaint, the Board would not require evidence of formal au- thorization in order to find that steps taken 'by indi- viduals in furtherance of the 'group's goals are a continuation of activity protected by Section 7 of the Act. Neither, contrary to our dissenting colleague, does our decision here represent a return to Alle- luia Cushion Co., 221 NLRB 999 (1975). Under that doctrine the Board required no actual' demonstra- tion of common complaints; the Board simply as- sumed that any complaint to a government agency that could benefit others automatically qualified as an expression of common concern. We need rely on no such assumption here. The employees had spoken for themselves, and Doran was advancing - those expressed interests with her cal1:4 a JMC Transport, 272 NLRB 545 in. 2 (1984), enfd. 776 F.2d 612, 617- 618 (6th Cir. 1985); Dayton Typographical Service, 273 NLRB 1205 ( 1984), enfd. in relevant part 778 F.2d 1188, 1191-1192 (6th Cir. 1985). See also Walter Brucker & Co., 273 NLRB 1306, 1307 (1984) (employee Wright's complaint about wages deemed concerted where employee Culbreath re- frained from taking action because of Wright's plan to complain). We note that in Walter Brucker, supra, we dismissed the complaint be- cause there was no showing that the employer knew of other employees' concerns and because it could reasonably have believed that employee Wright was simply protesting about his own wages Id. at 1307. To the extent that we require a showing of employer knowledge of concerted activity, it is satisfied in the present case by Tardani's testimony, noted above, concerning the employees who came to him and by the linkage of the telephone, call to the subject matter of those vocal complaints. It is also noteworthy in this connection that when it was suggested, several months after Doran was laid off, that she be rehired for a part-time posi- tion Director Geyer vetoed the suggestion, observing that Doran and an- other of the employees who had raised questions about the holiday com- pensation policy were "negative influences." Management thus evidently viewed with alarm Doran's potential for stirring up opposition to its poli- cies. In two of the cases on which our dissenting colleague relies, Access Control Systems, 270 NLRB 823 ( 1984), and American & Efird Mills, 269 NLRB 1077 (1984), each charging party employee had complained to his employer about his own circumstance, and there was no evidence of any relationship to group complaints . Another case he cites, Allied Erecting Co., 270 NLRB 277 (1984), is closer to the present case, but there are still distinguishing facts. In Allied greeting, charging ' party Collins was the only employee who ever complained to the employer about wages, so the employer would have had no necessary reason to connect his action to group activity. Member Stephens also notes that in Mannington Mills,' 272 NLRB 176 (1984), the employee action at issue was a threat of a par- tial work stoppage-a strike that would arguably be unprotected. It may well make sense to require more in the way of a showing of authorization where threats of actions that could cause employees to lose their jobs are concerned. 282 NLRB No. 48 414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Every Woman's Place, Inc., Muskegon, Michigan, -its officers, agents, successors, and as- signs, shall take the action set forth in Order as modified. Substitute the, following for paragraph 2(e). "(e) Post at its place of business in Muskegon, Michigan, copies of the attached notice marked "Appendix."' ° Copies of the notice, on forms pro- vided by the Regional Director for Region 7, after being signed by the Respondent's authorized repre- sentative, shall be posted by the Respondent imme- diately upon receipt and maintained for 60 consec- utive days in conspicuous places including all places where, notices to employees are customarily posted. Reasonable steps shall be taken by the Re- spondent to ensure that the notices are not altered, defaced, or covered by any other material." CHAIRMAN DOTSON, dissenting. I dissent on two grounds from my colleagues' adoption of the judge's finding that the Respondent violated Section 8(a)(1) by discharging employee Cathee Doran because of her protected concerted activities. First, I would decline to assert jurisdic- tion over the Respondent, a nonprofit corporation that provides shelter and counseling to runaway youths. As I have stated previously, I would return to the policy of Ming Quong Children's Center, 210 NLRB 899 (1974), and decline to assert jurisdiction over nonprofit, charitable institutions unless it has been demonstrated that such institutions have a massive impact on interstate commerce. See my dissenting opinions in Salvation Army of Massachu- setts, 271 NLRB 195 (1984), and Alan Short Center, 267 NLRB 886 (1983). As no such showing has been made here, I would not exercise jurisdiction over the Respondent. Secondly, I do not agree with my, colleagues' conclusion that Doran engaged in concerted activi- ty when she individually contacted the Wage and Hour Division of the U.S. Department of Labor, the act for which the Respondent discharged her. A review of the undisputed facts will help to put the issue into focus. In 1981 Webster House for Runaways, Inc. merged with the Respondent. During the merger process employees of Webster House became con- cerned as to what the Respondent's policy was going to be with respect to holidays and compensa- tory time. In October 1981 several employees, in- cluding Doran, questioned Michael Tardani, the Respondent's program coordinator, about the Re- spondent's policy regarding these issues.' On 9 No- vember 1981 Doran called the Wage and Hour Di- vision to ask what pay employees were entitled to receive for working on holidays. Doran subse- quently reported the information she received to Beverly Geyer, the Respondent's chief manage- ment official. The Respondent subsequently dis- charged Doran for having contacted the Wage and Hour Division. On these facts I cannot conclude that Doran's contact of the Wage and Hour Division was con- certed. As an initial proposition, I find that the General Counsel failed to establish that the em- ployees' questioning of Tardani regarding compen- satory time for holiday work was concerted. As noted above, the record is silent as to the circum- stances surrounding this questioning. My colleagues apparently presume that the employees questioned Tardani together. Yet nothing in the record sup- ports this presumption. From the record evidence it is equally plausible that the employees questioned Tardani individually on separate occasions. Under Meyers,' such questioning is not concerted. As the Board emphasized in that decision, "individual em- ployee concern, even if openly manifested by sev- eral employees on an individual basis, is not suffi- cient evidence to prove concert of action." Meyers, supra at 498. Obviously then, if the initial question- ing of Tardani were not concerted, there can be no basis for finding any subsequent individual act re- lating to that questioning to be concerted. Even assuming, arguendo, that the prior ques- tioning of Tardani was concerted, I would not find Doran's contact of the Wage and Hour Division to be concerted. There is no evidence that Doran was acting on the authority of any employees when she made the call. In this regard, there is no evidence that the employees intended to pursue the matter further or that, if the matter were to be pursued, the Wage and Hour Division should be contacted. In fact, Doran testified, "I took it upon myself to call the Wage and Hour Division." (Emphasis added.) There is also no evidence that the employ- ees in ' any way chose Doran as their spokesman, di- rected her to make the contact, or were even aware that she made the contact. Partial parallelism of concern is not activity in concert. Moreover, there is no evidence that Doran made the contact in an, attempt to initiate, induce, or prepare for group, action. Indeed, her first action after making the call to Wage and Hour was to telephone the I The record is silent as to the circumstances surrounding this ques- tioning. 2 Meyers Industries, 268 NLRB 493 (1984), remanded sub nom. Prill V. NLRB, 755 F.2d 941 (D.C. Cir. 1985), cert. denied 106 S.Ct. 313, 352 (1985), reaffirmed 281 NLRB 882 (1986). EVERY WOMAN'S PLACE Respondent's official Geyer, an , action obviously taken on an individual basis. Further, there is no evidence that the Respondent knew of the alleged concerted nature of Doran's call-a necessary ele- ment to establish a, violation. See our first Meyers decision, supra at 497. Implicitly acknowledging this lack of evidence that is required by the Board's Meyers decision, to establish the concerted nature of the activity, the majority, nevertheless, fords Doran's contact of the Wage and Hour Division and subsequent relay of that information to the Respondent to be concerted as they were a "logical outgrowth"s of the original (unproved) joint protest and thus a "continuation of protected activity," citing JMC Transport, 272 NLRB 545 (1984) (Chairman Dotson dissenting). In so finding, my colleagues have chosen to ignore the dictates of Meyers, in which the Board pointed out that, for individual acts to be protected on the basis of concertediess, they must be per- formed on the authority of the protected group, the act involved must be protected , and the Gener- al Counsel must prove than , the adverse action was directed at the protected acts of-the group's specifi- cally designated agent. In my opinion the majority, without regard to what the General Counsel has in fact established or failed to establish, fords concertedness by applying the Alleluia4 presumption that individual actions re- garding "group concerns" are-concerted-the very legal fiction that the Board intended to eliminate in its Meyers decision. The continued attempt to create legal fictions-here a so-called logical out- growth-as functional substitutes for evidence of employees' actual behavior in the workplace con- tributes little to realistic analysis and again turns the Board into an ombudsman for the remedy of every injustice in the workplace. Such a role is not contemplated by the statute.5 a The appearance of such an undefined connective in the majority's reasoning is a' matter of deep concern. One may derive almost any find- ing by the use of such terms. One might, e.g., prove that separately owned and operated aircraft were flying in formation. Such a finding could, after all, be a "logical outgrowth" of the facts that the aircraft de- parted the same airport within a minute or two of one another and had the same destination. The respective pilots need not, of course, be aware of their "concerted" act. Such reasoning does serious harm both to the legal grammar of the term "concerted activity" and the logic of our Meyers decision. a Alleluia Cushion Co., 221 NLRB 999 (1975). a Although not raised by my colleagues, I do not view Doran's dis- charge for her call to the Wage and Hour Division as having a "chilling effect" on the exercise of other employees' Sec. 7 rights. As the Board observed in Meyers II, in which employee Gore had also complained to the respondent about the same truck as prompted employee Prill's call to OSHA, whatever remote incidental effect an otherwise lawful discharge may have on other employees does not render the discharge unlawful 281 NLRB 882, 887. 415 , ` Moreover, the majority's unexplained departure from the Meyers analysis in this case leaves the Board open to correction by a reviewing court for failing to explain the reasoning behind its departure from its own precedent. As then .Judge Scalia re- cently criticized the Board: The purpose of the APA requirement that there be included in the agency's decision the "conclusions, and the reasons or basis therefor, on all the material issues of ... law" is only secondarily to enable reviewing courts to dis- cern irrationality. Its primary purpose is to impose a discipline upon the agency itself, as- suring that it has undergone a process of rea- soned decision-making rather than haphazardly reached a result that could (on one or another basis of analysis) be sustained. . . . In the cir- cumstances of this case; we think it was un- questionably incumbent upon ' the Board to ex- plain why it did not consider its decision a de- parture from the principles established in its prior cases, or why it considered a departure appropriate. Iron Workers Local 111 v. NLRB, 792 F.2d 241, 247-248 (D.C. Cir. 1986), denying enf. 274 NLRB 742 (1985). Accord: NLRB v. Metropolitan Life In- surance Co., 380 U.S. 438, 443-444 (1965); NLRB v. Indianapolis Mack Sales, 802 F.2d 280, 284-285 (7th Cir. 1986), denying enf. 272 NLRB 690 (1984); Res- taurant Corp. of America v. NLRB, , 801 F.2d 1390, 1395 (D.C. Cir. 1986), denying enf. 27-1 NLRB 1080 (1984). As another judge has observed, "There may not be a rule for Monday, another for Tuesday, a rule for general application, but denied outright in a specific case." Mary Carter Paint Co. v. FTC, 333 F.2d 654, 660 (5th Cir. 1964) (C.J. Brown, concurring specially), quoted with approv- al in NLRB v. Operating Engineers Local 925, 460 F.2d 589, 604 {5th Cir. 1972). The Board's recent reaffirmation of the Meyers decision at 281 NLRB 882 (1986) stands in sharp contrast to my col- leagues' reasoning in this case, and their failure to recognize this point fatally flaws their decision here. All that the evidence in this case in fact reveals is that Doran, of her own accord, sought informa- tion from the Labor Department and, of her own accord, reported her findings to management. Doran was discharged for individually contacting the Labor Department . It is this type„ of conduct that the Board found not to be concerted activity 416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in Meyers and subsequent cases.6 For these, reasons, I dissent. 6 American & Efird Mills, 269 NLRB 1077 (1984); Allied Erecting Co., 270 NLRB 277 (1984); Access Control Systems, 270 NLRB 823 (1984); Mannington Mills, 272 NLRB 176 (1984).' I readily acknowledge that in certain situations, unlike the present case, the evidence will warrant a finding that an individual's conduct is a factual continuation of prior con- certed activity. See Dayton Typographical Service, 273 NLRB 1205 (1984); The Loft, 277 NLRB 1444 (1986). J. Frederick Gatzke, Esq., for the General Counsel. Michael M. Knowlton, Esq. (O'Toole, Stevens, Johnson, Knowlton, Potter & Rolf), for the Respondent. DECISION STATEMENT OF THE CASE DONALD R. HOLLEY, Administrative Law Judge. On an original charge filed in Case 7-CA-20797 by Cathee Doran, the Regional Director of Region 7 of the Nation- al Labor Relations Board (the Board) issued a complaint on July 2, 1982, which alleged, in substance, that Every Woman's Place, Inc. (EWP or Respondent) violated Sec- tion 8(a)(1) of the National, Labor Relations Act (the Act), on January 6, 1982, by laying off Cathee Doran be- cause she had engaged in protected concerted activity by contacting the Wage and Hour Division of the Depart- ment of Labor concerning overtime pay for employees who , worked on holidays. Respondent filed a timely answer denying that it had engaged in the unfair labor practice alleged in the complaint. The case was heard in Muskegon, Michigan, on March 17, 1983. All parties appeared and were afforded full op- portunity to participate in the proceedings. Subsequent to the close of the hearing, the General Counsel and counsel for Respondent filed briefs that have been care- fully considered. On the entire record and from my ob- servation of the demeanor of the witnesses, I make the following FINDINGS OF FACT I. JURISDICTION Respondent, a Michigan corporation, is headquartered at Muskegon, Michigan, where it is engaged in providing crisis intervention, counseling services, and shelter to women and youths, Its Webster House facility located at 125 Delaware Street in Muskegon is the only facility in- volved in the proceeding. The complaint alleges, and Respondent admits, that during its fiscal year that ended September 30, 1981, its gross revenue exceeded $500,000 and it provided services for the State of Michigan that were valued at in excess of $50,0001. It was further stipulated that during its fiscal year, 1982 , Respondent's gross income dropped to ap- proximately $354,598 although it continued to furnish services to the State of Michigan in an amount valued at in excess of $50,000.` Observing that the operative facts in the instant case all occurred during its 1982 fiscal year, Respondent con- tends I should find the Board has no jurisdiction in this case as its gross revenue during fiscal year 1982 was less than $500,000. I find the contention to be without merit. As noted by the General Counsel, the Board in St. Louis Christian Home, 251 NLRB 1477 (1980), asserted juris- diction over a facility that provided residential care and therapy for abused and neglected children, that experi- enced an annual gross income of $250,000, and that pur- chased electricity and telephone services valued at ap- proximately $16,000 from firms engaged in interstate commerce. Here, Respondent's gross income for fiscal year, 1982 exceeded $250,000 and it performed services for the State of Michigan during fiscal year 1982 that were valued in excess of $50,000. On these admitted facts, I find that Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and the Board has jurisdiction over Re- spondent's operations. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Prior to October 1, 1981,1' Webster House for Run- aways, Inc. was a small nonprofit corporation that pro- vided shelter and counseling to runaway youth pursuant to two contracts with the Michigan Department of Social Services. It was headquartered in Muskegon, Michigan, where it operated a resident facility called Webster House.2 During the time period under discus- sion, Mike Tardani was acting director of the operation. He reported to a board of directors. Other persons em- ployed included: Cathee Doran, counselor; Vicki Dunn, outreach counselor; Bobby Thompson, paraprofessional counselor; Cathy Hoff, office manager; Nellie Day, house manager; and several hourly paid employees who, in effect, babysat at, the facility when no salaried staff member was present. During the late summer of 1981, the board of directors of Webster House for Runaways, Inc. voted to merge with Every Woman's Place, Inc. Under the terms of the merger agreement, Webster House was to convey its assets to EWP. EWP was to become the licensee of the residential and outreach contacts described above, and the Webster corporation was to be dissolved. When the merger of the two nonprofit corporations became effective on October 1, Tardani no longer held his commanding position as Beverly Geyer and her as- sistant, Sue Ashby, became the chief management offi- cials at the facility. Tardani was demoted to the position of program director. In addition to the fact that the man- agement hierarchy at the Webster House facility changed at the time of the merger, the policies and pro- cedures followed by EWP became the new policies and procedures of Webster House. As a consequence, the members of the Webster House staff, who met with Tar- dani once each week at so-called supervisory meetings, i All dates herein are 1981 unless otherwise indicated. 2 One contract funded activities at Webster House and was valued at approximately $130,000. The second funded outreach community and counseling services performed in Oceans and Newaygo Counties, which are contiguous to Muskegon County. The latter contract was valued at approximately $22,000. EVERY WOMAN'S PLACE' asked numerous questions about the new policies, and procedures.3 One area of concern was the policy that would be followed with respect to holidays and compen- satory time. Tardani testified that Cathee Doran, Cathy Hoff, and Vicki Dunn, in particular, asked him four or five times what the holiday and compensatory policy would be under EWP. Although Tardani sought to as- certain what the policy would be in those areas, he indi- cated Geyer could give him no definite answers. B. Doran 's Wage and'Hour Inquiry On approximately November 9, Doran telephoned the Wage and Hour Division of the U.S. Department of Labor to ask what pay employees were legally entitled to receive if they worked ,on holidays. She indicated she was informed employees were entitled to double time in such situations. After discussing the matter with the wage and hour spokesman, she telephoned Geyer and re- layed the information she had received. She also told Geyer whom she had talked to and who furnished her with the wage and hour telephone number to enable her to verify the information provided. Geyer subsequently contacted the Wage and Hour Division and was fur- mshed information by mail. After studying the informa- tion provided, Geyer concluded that members of the professional staff of EWP were exempt from the over- time provisions of the Fair Labor Standards Act. It is undisputed, however, that as a result of Doran's actions, EWP amended its policies and procedures about Novem- ber 19 to provide that members of the professional staff who were required to work on holidays observed by EWP would be granted 2 compensatory days off.4 Tardani testified that on November 18, Geyer in- formed him that Doran had failed to observe the chain- of-command policy of EWP by contacting her in the wage and hour situation. She further indicated to Tar- dimi that Doran had displayed a lack of tact in the situa- tion, and that she felt that Tardani did not have his staff under control. Tardani testified he defended Doran and himself by informing Geyer that Doran had followed the chain-of-command because she had asked him what E'WP's holiday policy was and had contacted Wage and Hour Division and Geyer only after Tardani was unable to answer the inquiries made by Doran and other em- ployees.s C. The Fund Reduction In early October, the Michigan Department of Social Services notified Respondent by letter that it would fund its existing runaway programs through December 31, but that shortage of funds would require changes thereafter. Subsequently, about November 19, that department noti- fied Respondent that its residential (the Webster House 21 Tardam indicated in reports sent to Geyer after such meetings that Webster House employees were apprehensive and concerned. See G.C. Exhs. 23-26. ' See G.C. Exh. 4. The language adopted as a direct result of Doran's contact with the Wage and Hour Division and Geyer is found at item 12, p. 17 and under the heading "Exemption from Overtone" on pp. 50-52. 5 After meeting with Geyer, Tardam informed Doran that Geyer was angry with her because she had not followed the chain-of-command in the wage and hour matter. 417 in,Muskegon) contract would be, reduced by 20 percent and/or or $19,487 for services to be provided from Janu- ary 1 to September 30, 1982. David Mills, the program manager for the Michigan Department of Social Services Office of Children and Youth Services, testified that when the budget cuts in the residential contracts were announced, he contacted the man in charge of the so-called "A" or outreach con- tracts, 'which had not been cut, and ascertained that counselors could devote less time to those contracts, thereby enabling them to devote more time to the slashed residential programs. While Mills indicated he communicated such news to providers over the tele- phone and during network meetings attended by provid- ers, he could not recall any specific contact with any Re- spondent management official., Geyer testified that, after considering various alterna- tives for 3-4 weeks, she decided that Respondent would have to lay off counselors to permit it to operate under its reduced budget. As the residential rather than the out- reach contract had been cut, she indicated that she de- cided, in accordance with her normal policy, to lay off counselors working in that program. The counselors chosen were Cathee Doran and Bobby Thompson, the paraprofessional counselor. Geyer explained that she felt Mike Tardani, assisted by EWP master counselor Tony Senna, who was working at Webster House approximate- ly 25 percent of the time, could, if assisted by outreach counselor Vicki Dunn, accomplish the necessary counsel- ing at Webster House. Geyer further indicated that Sue Ashby, her assistant, could relieve Tardani of some of his administrative duties. D. Tardani's Attempts to Cause Geyer to Retain Doran After learning that Geyer had tentatively decided to absorb the budget' cut in the residential contract by laying off counselors, Tardani met with her on Decem- ber 30, 1981, and January 4, 1982, in an attempt to cause her to consider other possible solutions. During the De- cember 30 meeting, he made suggestions that would absorb approximately $18,500 of the $19,487 cut. The plan involved, inter alia, reducing the house manager (Nellie Day) and the secretary (Cathy Hoff) from an 8- hour day to a 6-hour day. Geyer rejected his proposal, indicating that she planned to lay Doran off and go to a live-in arrangement for child care when the regular staff was off. Tardani testified he asked Geyer to reconsider her decision to lay Doran off, observing that Doran ac- complished half of the counseling performed at Webster House. Geyer's response was that Doran did not fit into the 'team approach; that she had attitude and morale problems and had not participated in some of the fund- raising activities. Tardani further indicated that Geyer told him that if Doran had been an EWP employee out- side the merger situation, she would have been fired on the spot for violating the chain-of-command and ap- proaching Geyer in a manner that ' lacked tact. At the conclusion of the meeting, Geyer informed Tardani that she still planned to lay Doran off, but would think about it. 418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD When Tardani and Geyer next met on January 4, Tar- dani proposed that Respondent avoid a layoff by cutting both Doran and Vicki Dunn's hours by 50 percent. Geyer rejected the suggestion. Tardani then compared Doran and Dunn at length, pointing out his feeling that while Dunn had adequate qualifications and had done a good job as outreach counselor, Doran had superior qualifications and experience and had done an excellent job as residential counselor. Geyer ended the meeting by indicating her final decision was to lay Doran off. At some point in the conversation, she informed Tardani that Doran and Cathy Hoff had pressured Tardani to do things that did not facilitate a smooth merger and that Doran had some manipulative tendencies. E. The Layoffs On January 6, 1982, Geyer and Tardani met with Doran in the latter's office. Geyer informed the employ- ee that the budget cut necessitated laying her off effec- tive January 21. Doran became hysterical and could recall little of what happened. While Geyer claims she told Doran they were going to a live-in arrangement and she offered the live-in position to Doran, the employee and, Tardani recall that no such offer was made; that in- stead she was offered relief staff work." It is undisputed that Bobby Thompson, a paraprofes- sional counselor who was also employed at Webster House, was informed on January 6 that he was being laid off as of January 22 for economic reasons. The record further reveals he was offered and accepted the live-in attendant position created about the time he and Doran were informed they were being laid off. When they were informed of their layoffs on January 6, both Doran and Thompson were given letters indicat- ing the reason for the action. Geyer indicated in such let- ters that each had been a valuable employee and that Re- spondent could be counted on to give an excellent refer- ence. F. Post-termination Events By memorandum dated January 8, 1982, Vicki Dunn was informed by Geyer, inter alia, that effective January 1 her salary was increased to $6.75 per hour and that her duties would change to include more time in Muskegon.7 Shortly thereafter, on January 28, Tardani informed Wood, who supervised outreach services in Newaygo County, by letter that due to budget cuts Dunn would be spending less time in outreach counties. Thereafter, Dunn, spent approximately 1 day a week in each of the outreach counties for approximately 3 months. Thereaf- ter, she spent almost all of her time in Muskegon. Even- tually the outreach contract was given to another pro- vider because Respondent was not performing adequate- ly. 8 As Tardani was not employed by Respondent at the time of the hear- ing and he was an extremely persuasive witness, I credit his testimony when it conflicts with that of Geyer who has an obvious interest in the outcome of this case. ' G.C. Exh. 21. The record reveals that even though she had been em- ployed after Doran, Dunn was hired at a higher hourly rate than Doran received. In February 1982, Sue Ashby replaced Tardani as the project coordinator at Webster House and Tardani was demoted to the position of casework supervisor. In April 1982, Ashby was to be assigned other duties and on April 21 she interviewed Tardani who had applied for the project coordinator position. Tardani testified with- out contradiction that during the interview Ashby asked him what he would like to do if he obtained the position. When he indicated he would like to rehire Doran, Ashby told him Doran was not a team player and in Ashby's mind Doran had cut her own throat. The next day, April 22, Geyer interviewed Tardani. Tardani testified that when Geyer asked him which individuals in which ca- pacities he would use if selected as a program coordina- tor, he informed her he would keep the current staff and consider rehiring Doran, at least part-time. Geyer told him that was out of the question, and made further com- ments to the effect that Doran as well as Cathy Hoff did not fit the team approach and were negative influences. 0. Accrediting Evidence Offered to Show Doran's Excellence To bolster his claim that Doran was an excellent em- ployee who was more highly qualified to perform the Webster House work than Vicki Dunn, the General Counsel placed a resume prepared by Doran and two employee evaluations prepared by Tardani during the period Doran was employed by Respondent in evi- dence. s The resume reveals, inter alia; that Doran ob- tained a B.S. degree in sociology in 1974; that she was a juvenile case worker from January 1973 until May 1974; that she was a youth home director from January to May 1974; that 'she was a child care worker at a youth home from September 1975 to March 1977; that she was a court screener working with the court, prosecutor, and public defender in Lowell, Massachusetts, from August to December 1974; and that she was a research assistant from January to April 1975. In brief, the employee eval- uations prepared by Tardani on June 24, 1981, and Janu- ary 4, 1982, respectively, reveal that Doran was given "Better than Average Performance" or "Outstanding Performance" ratings in all categories in both reviews. The single exception was that she was given an "Aver- age Performance" rating in the June evaluation on re- sponsibility. Analysis and Conclusions A threshold issue is whether Doran was engaged in protected concerted activity when she contacted the Wage and Hour Division and subsequently contacted Geyer concerning the holiday matter. It is well established that the conduct of an individual employee may constitute "concerted activity" for pur- poses of Section 8(a)(1). Alleluia Cushion Co., 221 NLRB 999 (1975); Air Surrey Corp., 229 NLRB 1064 (1977). Ex- pounding on the issue in ARO, Inc. v. NLRB, 596 F.2d 713, 718 (1979), the Sixth Circuit stated: 8 See G.C. Exhs. 27, 29, and 30. EVERY WOMAN'S PLACE 419 For an individual claim or complaint to amount to concerted action under the Act- it must not have been made solely on behalf of an individual employ- ee, but it must be made on behalf of other employ- ees or at least be made with the object 'of inducing or preparing for group action and have some argu- able basis in the collective bargaining agreement. Here, the factual situation is one in which practically all the Webster House employees voiced concern during meetings with their supervisor over the policies and pro- cedures to be followed by Respondent after the merger. Employees Cathy Hoff, Cathee Doran, and Vicki Dunn specifically inquired what the policy on holidays and compensatory, time would be and, although he attempted to obtain answers for their inquiries, Supervisor Tardani was unable to do so. It was in the above context that Doran individually contacted the Wage and Hour Divi- sion and thereafter Geyer on November 9. Although Respondent argues that Doran acted individ- ually and solely for her own benefit, the record reveals that after Geyer investigated the matter she caused Re- spondent's written policies and procedures to be amend- ed to indicate that salaried employees who worked on holidays recognized by Respondent would receive 2 compensatory days for each holiday worked and that professional employees were exempt from the overtime provisions of, the Fair Labor Standards Act. In the circumstances described, I find that Doran's ac- tions reflected a commonality of purpose meant to inure to the mutual aid and benefit of the entire staff of Web- ster House. Indeed, Respondent seemingly recognized this by deciding, after Doran had contacted the Wage and Hour Division and Geyer, to clarify its holiday policy by amending its policies and procedures. I find that Doran engaged in protected concerted activity when she telephoned the Wage and Hour Division and subsequently briefed Geyer on'the matter on November 9, 1981. The more difficult issue in this - case is whether Re- spondent discharged Doran because of her November 9 activity, or Whether, as it contends, she was discharged for economic reasons. In Wright Line, 251 NLRB 1083, 1089 (1980), the Board indicated the causation test to be employed in dis- charge cases - involving alleged violations of Section 8(a)(1) or (3) as follows: First, we shall require, that the General Counsel make a prima facie showing sufficient to support the inference that protected conduct was a "motivating factor" in the employer's decision. Once this is es- tablished, the burden will shift to the employer to demonstrate that the same: action would have taken place even in the absence of the protected conduct. I find, without hestitation, that the General Counsel adduced sufficient facts in the, instant case to support an inference that Doran's protected activities were a "moti- vating factor" in Respondent's decision to terminate the employee. Thus, the record clearly reveals that: (1) Geyer exhibited marked animosity towards Doran be- cause she questioned Respondent's holiday , policy in early,-November; (2) Doran was a senior employee at Webster House and was shown to have been exceptional- ly well qualified to perform work required by both the residential and the outreach contracts ; (3) Geyer was shown to have stated immediately before Doran was ter- minated that she would have been terminated "on the spot" if she had engaged in protected conduct in a non- merger situation; and (4) in April 1982, Geyer rejected a suggestion that Doran be rehired stating it was "out of the question" because she and Cathy Hoff (who also in- quired concerning EWP's holiday policy) were negative influences (on Tardani). The factors described compel an inference that Doran's November 9 actions were a "mo- tivating factor" in the decision to terminate her. Turning to Respondent's defenses, I note that they consist, in main, of bare assertions, which are uncorro- borated in any respect. The first contention is that Doran's November 9 activity was unprotected. My find- ings, supra, resolve this matter adversely to Respond- ent's. The remaining defenses are that Respondent's policy is to lay off persons who are performing work re- lated to the contacts that are cut; that Vicki Dunn was retained because of her valuable contacts with people in Oceana and Newaygo counties; and that Geyer deter- mined that Tardani and Senna could accomplish the nec- essary counseling work required at Webster House. These defenses are discussed individually below. With respect to Geyer's claim that she customarily counters cuts in the funds for specific programs or con- tracts by laying off employees engaged in the perform- ance of such contracts, I note that this is a bare claim unsupported by any evidence whatsoever. Although the record suggests that EWP had experienced other cuts in its budget around the same time the Department of Social Services cut its Webster, House residential, con- tract by 20 percent, Geyer made no mention of person- nel layoffs, which were effectuated in other programs, that were made to permit Respondent to operate under reduced budget conditions. To the contrary, she testified that such situations were handled , in part, by posting all jobs available and permitting employees to bid on them. In the circumstances, I am unwilling to attach significant weight to , Geyer's bare assertion that Respondent's normal policy is to lay off'employees who perform work under contracts that are cut. Similarly, Geyer's claim- that Dunn rather than Doran was retained because her contacts in Oceana and Newaygo Counties were -valuable ' is a bare assertion un- supported by any evidence. As noted by the General Counsel in brief, the record reveals that the Department of 'Social Services notified, providers at the time Re- spondent's, residential contract was cut that the supervi- sor of the outreach contracts had agreed the providers could devote less time to outreach contracts. Viewing Tardani's letter to that department that indicates Re- spondent intended to devote less effort to the Oceana and Newaygo outreach contracts with that record evi- dence that reveals that, Respondent caused Dunn to spend so little time in the named counties during 1982 that the contract was awarded to another provider, I 420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD conclude that Geyer was not as concerned with the out- reach contracts and-Dunn's contracts as she claims. Finally, although Geyer claimed that she decided prior to Doran's termination that Senna and Tardani could ac- complish the necessary counseling at Webster House after Doran was gone, the record clearly reveals that, in fact, Dunn was required to spend the vast majority of her time counseling at Webster House after Doran left. Thus, it appears that by terminating Doran, Respondent chose to use a less qualified employee who was paid more to do the job previously performed by alleged dis- criminatee Doran: In sum, the record evidence in this case fails to per- suade me that Respondent would have selected Doran for layoff in January 1982 if she had not engaged in the protected activity described, supra. I find 'Respondent has failed to rebut the General Counsel's prima facie showing that Respondent selected Doran for termination for discriminatory reasons. Accordingly, I fmd, as al- leged, that by terminating Doran on January 21, 1982, Respondent violated Section 8(a)(1) of the Act. CONCLUSIONS OF LAW 1. Every Woman's Place, Inc. is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. By terminating Cathee Doran because she engaged in protected concerted activities, Respondent violated Section 8(a)(l) of the Act. 3. The aforesaid unfair labor practice affects commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it be or- dered to cease and desist therefrom and take certain af- firmative action designed to effectuate the purposes of the Act. Having found that Respondent discharged Cathee Doran in violation of Section 8(a)(1), I shall recommend that Respondent reinstate Cathee Doran to her former job or, if such job no longer exists, to a substantially equivalent position, without prejudice to her seniority or other rights and privileges previously enjoyed, and I shall recommend that Respondent make Doran whole for any loss of earnings she may have suffered because of the discrimination practiced against her by payment to her of a sum equal to what she normally would have earned from the date of her discharge on January 21, 1982, to' the date Respondent offers her reinstatement, less her net earnings during that period. Backpay shall be computed in the manner set forth in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as prescribed in Florida Steel Corp., 231 NLRB 651 (1977). See generally Isis Plumbing Co., 138 NLRB 716 (1962). ' On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed9 9 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 ORDER The Respondent, Every Woman's Place, Inc., Muske- gon, Michigan, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Discharging or otherwise discriminating against any employee for the purpose of discouraging employees from engaging in protected concerted activity. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer Cathee Doran immediate and full reinstate- ment to her former position of employment or, if that job no longer exists, to a substantially equivalent posi- tion, without prejudice to her seniority and other rights and privileges previously enjoyed. (b) Make whole employee Cathee Doran for any losses of pay she may have suffered by reason of the discrimi- nation agianst her in the manner set forth above in the remedy section. (c) Remove from its files any reference to the layoff or termination of Cathee Doran on January 21, 1982, and notify her in writing that this has been done and that evi- dence of this unlawful termination will not be used as a basis for future personnel actions against her. (d) Preserve and, on request,, make available to the Board or its agents,' for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other records necessary or useful to the analysis of the amount of backpay due under the terms of this Order. (e) Post at its, place of business in Muskegon, Michi- gan, copies of the attached notice marked "Appendix." 1 Copies of the notice, on forms provided by the Regional Director for Region 7, after being signed by the Re- spondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps Respondent has taken to comply. Board and all objections to them shall be deemed waived for all pur- poses. 10 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." EVERY WOMAN'S PLACE 421 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. WE WILL NOT discharge or otherwise discriminate against employees ' for the purpose of discouraging them from engaging in protected concerted activity. WE-WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed yogi by Section 7 of the Act. WE WILL offer Cathee Doran immediate and full rein- statement to her former job or,, if that job no longer exists, to a substantially equivalent position, without prej- udice to her seniority or other rights , and WE WILL make her whole for any loss of pay she may have suffered by reason of our discrimination against her, with interest. WE WILL remove from our files any references to the discharge of Cathee Doran on January 21, 1982, and WE WILL notify her that this has been done ' and tht evidence of this unlawful discharge will not be used as a basis for future personnel actions against her.