New Horizons For The Retarded, Inc.

760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD New Horizons for the Retarded, Inc. and Profes- sional and Commercial Employees Union, a/w the International Ladies' Garment Workers Union, AFL-CIO. Cases 3-CA-12852, 3-CA- 12852-2, and 3-CA-12965 14 January 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND BABSON On 29 July 1986 Administrative Law Judge Joel P. Biblowitz issued the attached decision. The Re- spondent filed exceptions and a supporting brief. 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 brief and has decided to affirm the judge's rulings, findings,' and conclusions and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the ' administrative law judge and orders that the Respondent , New Hori- zons for the Retarded, Inc., Ellenville, New York, its officers, agents, successors , and assigns, shall take the action set forth in the Order. 1 Chairman Dotson agrees with the judge's fording that a violation of Sec. 8(a)(3) and (1) occurred The Chairman finds the judge's analysis with regard to the union activity and timing of Hajdasz' discharge to be persuasive and therefore finds it unnecessary to reach the issue of the Re- spondent's reliance on its belief that Hajdasz participated in the planned sick-out. Thomas J. Sheridan, Esq. and Robert A. Ellison, Esq., for the General Counsel. David S. Shaw, Esq. and David A. Kapelman, Esq., for the Respondent. Lester Kushner, Esq., for the Charging Party. DECISION JOEL P. BIBLOWITZ, Administrative Law Judge. This case was tried before me in Liberty and Ellenville, New York, on 9 December 19851 and 5 and 6 May 1986. The charges in this matter were filed on 21 August, 5 Sep- tember, and 15 November by Professional and Commer- cial Employees Union, a/w the International Ladies Gar- ment Workers Union, AFL-CIO (the Union). The com- plaint (portions of which were later amended and other portions of which were withdrawn by motion dated 31 March 1986, granted by me on 5 May 1986), which issued on 25 September, alleges that New Horizons for the Retarded, Inc. (Respondent), violated Section 8(a)(1) ' Unless indicated otherwise, all dates referred to herein are for the year 1985. and (3) of the Act, by suspending and discharging its em- ployee George Bennett on 9 and 13 May, and by elimi- nating or decreasing overtime opportunities for its em- ployee Mark Hajdasz on 14 May and by issuing him warnings and discharging him on 24 May, all because of their activities on behalf of the Union. Respondent admits that it terminated Bennett and Hajdasz, but al- leges that it was solely for work-related reasons. On the entire record, including my observation of the demeanor of the witnesses, and after consideration of the briefs filed by the parties, I make'the following FINDINGS OF FACT I. JURISDICTION AND LABOR ORGANIZATION STATUS Respondent admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that the Union is a labor organiza- tion within the meaning of Section 2(5) of the Act. II. THE FACTS Respondent operates a residential treatment center for mentally and physically handicapped individuals (cli- ents). Hajdasz and Bennett were employed by Respond- ent as counselors; in that capacity their duties were, basi- cally, to assist the clients through their day, beginning with washing and brushing their teeth in the morning, as- sisting them in their daytime activities, their meals, and washing in the evenings. Some counselors 'are also on duty while the clients sleep. A. The Card Signing During January, February, and March some of the em- ployees discussed, what they perceived to be, unwarrant- ed discharges by Respondent. As a result of these discus- sions, in about early April the husband of an employee called a union and arranged for a representative to meet them at a diner in about the middle or end of April. Haj- dasz, Bennett, and about three other employees went to the diner at the appointed time; the individual they were supposed to meet was not there , but they saw an individ- ual with a car that had a union bumper sticker. They asked him (Ed Aspenole) if he was the individual they were supposed to meet. He said that he was a representa- tive of the International Ladies Garment Workers' Union (ILGWU), but he was not supposed to meet anyone. He arranged for them to meet another ILGWU representa- tive who told them that they would have to obtain signed authorization cards from a majority of the em- ployees if they wished the Union to represent them. When she showed Bennett the ILGWU authorization cards, he said that they were not appropriate for the situ- ation and asked if she could give them cards with a union name that the employees would find more palata- ble. On the following Monday , 6 May, Bennett was given a manila envelope containing about 50 authoriza- tion cards with the Union's name . On the following day, he signed a card; he also gave one to Hajdasz who signed one as well on that day. Bennett also gave Haj- dasz and two other employees 12 to 24 cards to distrib- ute to other employees. In addition, on 6, 7, and 8 May, 282 NLRB No. 110 NEW HORIZONS FOR THE RETARDED Bennett solicited approximately 25 employees to sign au- thorization cards; from 7 May through 24 May, Hajdasz approached about 20 employees about signing cards. This was done before or after work in the lobby or the parking lot at the facility. Bennett also asked certain su- pervisors if they would sign an authorization card for the Union; he testified that although he knew that they were employed in supervisory positions-"I thought they would be able to vote." Bennett and Hajdasz asked Jim Burke, the residential manager and their immediate su- pervisory, how he felt about a union. Burke told them that he was against a union and if a union came in, he would quit. Hajdasz asked him why he was so antiunion, and Burke said that he had worked with a union in the past and they were no good and' a union would not bene- fit the employees. Additionally, Bennett asked two other supervisors (also residential managers) if they were inter- ested in signing union authorization cards; both were noncommittal. Respondent admits that it was aware of Bennett and Hajdasz' activities on behalf of the Union prior to the their discharges. John Leibel, who was employed by Re- spondent as administrative coordinator (one level above Burke) until 20 May and as program manager until August, when he left Respondent's employ, testified that in early May he' heard rumors at the facility that Hajdasz and Bennett were involved with the Union. Mary Mistier, Respondent's assistant executive director, called Attorney Shaw prior to discharging Hajdasz and Bennett and asked if they could discharge an employee who was actively soliciting for the Union. In addition, on about 16 May, Mistier, at a supervisory meeting, said that a union was not needed at the facility, that union solicitation was not to be allowed at the facility, and if it was seen in client areas it was to be removed. Alfred Mandiville, who was employed by Respondent as night administrator until he was terminated in July, testified that in mid- May, Iris Edmonds, Respondent's deputy director of support services (and an admitted agent) told him that Respondent "frowned upon staff members who were taking signatures for the union." She mentioned Hajdasz and Bennett and said that she could not understand why anybody would listen to them. On direct examination he was asked: Q. Do you recall her saying that anything had happened to either of these individuals because of it? A. They were gone. Q. How about George specifically? Do you recall ... anything she said? A. That George was a troublemaker and that no one should listen to him. On about 10 May, Respondent posted the following bulletin, to "All Staff" from E. F. Moran, Respondent's director of staff development regarding "No Solicitation Rule": No outside organization or person shall be al- lowed access to staff or residents for the purpose of soliciting contributions, interest, or support for any cause. 761 Employees are prohibited from soliciting other employees during their hours of duty (working time) and/or in Residential care areas, Day Pro- gram areas, and/or other assigned working areas, in which resident contact and/or services are provid- ed. B. The Hajdasz Termination Hajdasz began working for Respondent on 3 January; Respondent has, 90-day probationary period for coun- selors; at the end of that period they are evaluated. If that evaluation is satisfactory and their employment with Respondent is continued, they are eligible to receive medical coverage provided by Respondent. Due to a large turnover of employees, as well as other reasons, it is not unusual for the 90-day evaluations to be delayed. Hajdasz testified that beginning in about mid-April he asked Burke, Richard Hawes, Respondent's director of program operations until about 31 October, and Hawes' secretary for his evaluation and they told him either that the other had it or that they had not seen it. On about 16 May, Hawes, an admitted agent of Re- spondent, and Leibel's immediate superior, told Leibel that he wanted to discharge Hajdasz for leaving his unit unsupervised on 7 April; Leibel said that he did not want to fire him for an incident that occurred 6 weeks earlier because it would further aggravate their low staffing, in addition to the fact that it -did not appear to be a fair thing to do. Hawes then called Moran; they decided that rather than firing Hajadsz, they would give him a verbal warning for leaving his unit unsupervised. On that same day Leibel informed Hajdasz that he was told'to'give him a'verbal warning for leaving his unit unsupervised on 7 April, and if it happened again he could be termi- nated. Hajdasz testified that this was the first time anyone spoke to him about the 7 April incident and he had never previously been given a formal warning about his work. In addition, he testified that on 23 May, Ron Dobson, Respondent's program manager until about 3 October, and an admitted agent 'of Respondent, told him that he was giving him a verbal warning for turning in his paperwork late. Hajdasz objected that his paperwork was late because of inadequate staffing on his 'unit., Dobson said that Respondent gave the counselors enough free time to complete'their daily and monthly re- ports. Hajdasz insisted that there, was not enough time to properly do the reports. Dobson told him that if the problem continued he would be "written up a second time and then after that, I could be terminated." Dobson testified that a short period of time prior to Hajdasz' termination he told Hawes about the chronic problem he was having with Hajdasz' late paperwork, and he felt that a verbal warning was warranted; Hawes agreed. Shortly thereafter, he met with Hajdasz "regard- ing constant lateness with his paperwork over a period of several months." He informed Hajdasz that he was giving him the first step in the disciplinary process-a verbal warning-which does 'not go into the employee's file; he also informed him that if the problem continued it would result in a formal written warning that would 762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD go in his file. Hajdasz said that he did not feel qualified or comfortable doing the monthly reports. Either later that day, or several days' later, Dobson met with Hawes and Leibel; Hawes said that he "wanted to review the Mark Hajdasz situation" because he heard that Hajdasz was organizing a sickout of the night staff and wanted to do something about it. He asked Dobson to provide him with a written report of the verbal warn- ing he had previously given him. Hawes said that "[h]e wanted to pull the case together" because "he wanted to do something about this walkout." Hawes then told Leibel that he understood that there was an incident of Hajdasz leaving his post; Leibel said that it had occurred some time ago, no action had been taken and he did not feel comfortable writing it up so long after the incident. Hawes said that he wanted something written up. Mandiville testified that in about mid-May, Hawes called him into his office and asked: "What the hell is going on with Mark Hajdasz?" Mandiville said that he did not,know. Hawes said that he was "running around taking signatures for the union." Hawes told Mandiville that he did not want Hajdasz working any more over- time on his shift.2 Hawes said that he was going to take care of it and picked up the phone and asked the person to whom he was speaking where Hajdasz' evaluation was. Hawes then said: "I want you to write up an eval- uation and bring it to my office immediately." He then said that he wanted Hajdasz suspended for not doing his paperwork. On 24 May, Hawes told Leibel that he understood that Hajdasz was involved in soliciting for the Union and in organizing a sickout of the night-shift employees3 and he wanted to terminate Hajdasz because of the planned sick- out and he wanted Leibel to document his 16 May verbal warning to Hajdasz. Placed in Hajdasz' file was an Unsigned memo, dated 24 May, from Leibel to Hawes: I verbally counseled Mark Hajdasz on May 16, 1985 concerning the incident in which he left his as- signed area during his shift to have a discussion with another counselor (occurred on April 7, 1985). Mr. Hajdasz told me he fully understood the im- portance of careful, close supervision of clients at all times. I told Mark that if he was found in an area other than his assignment dictates while on duty again, he would be terminated. 2 At the time, Mandiville (who was terminated by Respondent in July) was the night admininstrator for the midnight to early morning shift. As he testified: [A]t twelve o'clock at night it is kind of hard to get someone to come in. We usually request someone to work overtime from the shift previous, Mark was one of the people who was always avail- able to work a Hajdasz testified that in mid-May a fellow employee told him that the employees were discussing the possibility of a sickout on a certain date (which he could not remember) to protest certain of Respondent's actions and that he should' not accept overtime, if asked. Leibel testified that he had heard that Hajdasz might be involved in a planned sickoutof the night shift. Mandeville testified that Hawes told him that he heard that Hajdasz was organizing a sickout the following weekend When Mandeville asked Hajdasz if it were true, he said that because Respondent had learned of it they had canceled it Leibel testified that, at the time, he did not see the final typewritten memo, but he prepared such a memo. At the end of the memo he prepared, however, he stated that since 7 April there had not been a repeat of the inci- dent in question. On the afternoon of 24 May, while Hajdasz was with clients, Burke told him that Hawes wanted to speak to him. When they arrived at his office, Hawes told him that he wanted to discuss his evaluation with him. Hawes then read to Hajdasz and Burke, verbatim from Hajdasz' evaluation; this evaluation contained nine categories for evaluation. At the end of the evaluation, under the title: "Overall Comments and Recommendations," it states: Though Mark has demonstrated certain abilities in relating with clients and performing basic duties, there are several areas of serious concern regarding his ability to meet the given responsibilities of his job. He has been verbally warned never to leave his assigned area unsupervised. Also he has been ver- bally warned regarding his inability to complete necessary paperwork for client programs. He also has not followed appropriate procedures for work- ing extra hours. As a result of these serious concerns, termination is recommended effective May 24, 1985. One of the categories read to him stated: "Mark does not always follow appropriate procedures with his supervisor in working overtime." Hajdasz stated that he understood that the only requirement was to get the administrator on duty or the supervisor's permission to perform over- time work. Hawes answered that he made himself too "accessible" for overtime. Another category read to him stated: "Mark has been consistently late on completing paperwork on client goals and has received a verbal warning as a result. This is a serious deficiency since monthly summaries were sited as a key deficiency in state surveys on client programs." Hajdasz answered that low staffing on his unit made it impossible to do the pa- perwork and care for the clients at the same'time. An- other category read to him stated: "However, he has left his assigned unit unsupervised (16 clients). His Adminis- trative Coordinator has given him a verbal warning re- garding this serious concern." Hawes added that it was a state offense to leave clients unattended. Hajdasz said that he left the floor unattended to complete paperwork with another staff member; he had informed Dobson and the other staff members where he was going and he made his bed checks and fire checks every hour. Hajdasz also told Hawes that employees caught sleeping on the job were suspended and returned to work, while he was discharged even though he was in the building and had fellow employees checking the clients for him. Hawes did not respond. , I Hawes then read the last page attached to the evalua- tion, entitled "Disciplinary Action Report" (which was undated), which was above the unsigned name of Dobson: On May 23, 1985 , Ron Dobson, Program Manag- er conducted a disciplinary action meeting involv- NEW HORIZONS FOR THE RETARDED ing Mark Hajdasz. At this meeting Mark was given a "formal verbal warning." The disciplinary action involved as a direct result of Mark's summary re- ports. Currently, all counselors are assigned three- four residents for whom they are responsible for re- porting on them on a monthly basis. Minutes of the meeting consisted of Ron Dobson advising Mark of the reasons for the meeting-ha- bitual tardiness on paperwork (monthly reports) since January. Mark responded that he felt he "shouldn't have to write monthly summaries." Ron advised him as to why monthly reports are re- quired. Mark was further advised that May monthly reports are due June 5th, and tardiness would result in written notification submitted to his file. Mark acknowledged that he understood. Hajdasz said that it was supposed to be a verbal, not a written, warning; Hawes did not respond. Burke testified that when Hawes asked him to bring Hajdasz to his office on 24 May, he was not aware that Hajdasz was going to be terminated. On 3 April, Burke had handwritten an evaluation of Hajdasz.4 Without comparing this evaluation word-for-word with the final evaluation that Hawes read to Hajdasz on 24 May (por- tions of which are recited, supra) suffice it to say that none of the negative aspects recited by Hawes appeared in Burke's handwritten evaluation of Hajdasz. In addi- tion, Burke gave Hajdasz a numerical rating of 35 out of a possible 45 points, compared to Hawes' 20 points for Hajdasz, Burke's "Overall Comments and Recommenda- tions" stated: I recommend Mark Hajdasz as a permanent status employee in this agency. Mark has functioned at an adequate level of expectations, ensuring qual- ity care for each resident in his unit. Burke was not consulted about, nor had he previously seen, the final typed evaluation (the one Hawes read to Hajdasz) until 24 May; on that day, at Hawes' request, Burke signed it along with Hawes. At the meeting on 24 May, Hawes told Burke that'he changed Burke's evalua- tion because it did not include the verbal warnings Leibel and Dobson gave Hajdasz, Mistier testified that part of her responsibilities is to review and approve evaluations of probationary employ- ees. "At the end of the probationary period, or approxi- mately the end of the period" she received Hajdasz' handwritten evaulation; "I sent it back because I-felt it didn't reflect his performance because of other informa- tion I had [leaving clients unattended and doing the re- quired paperwork in a timely .fashion]." At the time she received the handwritten evaluation (she could not be specific about when she first saw it) she told Hawes that she was concerned that it was not accurate, that it did Burke testified that he learned of the 7 April incident shortly after he prepared Hajdasz' evaluation in early April. He did not attempt to change the evaluation because of the incident. He discussed the incident with Leibel who said that he would speak to Hajdasz about it. Burke tes- tified that he felt that the incident was not a sufficient reason to discharge an employee 763 notreflect the problems they had with Hajdasz leaving clients unattended and his paperwork problems. In about mid-May she received a revised evaluation-"I was not happy with the second evaluation. I thought that, too, didn't reflect enough specifics regarding his perform- ance." She expressed this concern to Hawes: He expressed concerns about the other issues, about whether or not it was-whether we could terminate this person and whether that would be a problem regarding the fact that he thought that he was involved with some activities regarding the union. Mistler then called Attorney Shaw and asked whether "a person could be terminated for performance regardless of whether or not they were involved with that union issue." Shaw told her that if his performance required termination it was okay. She then told Hawes that they could discharge Hajdasz "because he should have been terminated because he left his work station, primarily." The principal reason for discharging Hajdasz was his leaving the clients unsupervised; next in importance was his difficulty with the required paperwork. In addition, it was reported to Mistler that Hajdasz was "hanging around waiting to do overtime," and that he had worked three or more shifts straight, without a break. This "was important. It was coupled with the other issues." Mistler was asked on direct examination: "Was there any discussion, in April, after the actual incident, about firing- Mr. Hajdasz?" She testified that she discussed the matter with Hawes, but was not sure whether it oc- curred in April or early May. She told Hawes that she was concerned that Hajdasz had left clients unsuper- vised; Hawes said that "it was too late because it was not picked up immediately." Mistier told Hawes "to have this person warned, if nothing else, that he should not do that again. Since it was not picked up right away, but should it occur again that would be it" 1. April 7 incident Admittedly, on the evening of 7 April, Hajdasz left his area to do some overdue paperwork. He testified that on that evening, in his presence, Dobson asked a female em- ployee assisting on his unit, for her paperwork; she said that it had not been completed. He told her that it was supposed to have been turned in; he then asked Hajdasz where his paperwork (presumably for the month of March) was, and Hajdasz also said that he had not com- pleted it. Dobson said that it had to be completed and Hajdasz said that the two of them would work on it to- gether that night and have it on Dobson's desk in the morning.5 Prior to leaving, Hajdasz made a bed check and saw that everybody was sleeping;6 in addition 5 He did not tell Dobson that they would be leaving the unit to do the work. 6 There were' 14 to 16 clients under his supervision on that shift, they were asleep, three or four to a room. Normally, the residential counselor sits in an adjacent day room, watching television, listening to the radio, reading, doing paperwork, or listening for the clients. Leibel testified that if the clients were well and sleeping, the counselor should check each room a minimum of every 20 to 30 minutes 764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD during the 2 to 3 hours that they did the paperwork he went upstairs for the bed checks and fire calls. When they completed the paperwork, they left it on Dobson's desk. Leibel testified that during the period of his employ with Respondent, a number of employees were dis- charged for sleeping during their shift; this was serious enough to result in discharge because "it places clients in a very dangerous situation. People need to be awake." In addition, one employee was discharged` for leaving her unit unsupervised for a lengthy period of time, but Leibel could not remember whether that occurred before or after Hajdasz was discharged. Mandiville testified to a number of situations leading to the termination of em- ployees; in about April, a counselor was assigned to a client who had broken her leg or hip and could not move without assistance. On three occasions during one night, Mandiville found that the counselor was not in the proper area to be with the client if she needed assistance; on each occasion Mandiville instructed the counselor that she had to remain with the client. On the' third occa- sion the counselor became indignant. Mandiville told Hawes of the situation and Hawes told him to send the counselor home; she was dismissed, for insubordination and leaving her area. Mistier testified that she regularly reviews Respond- ent's safety logs and in that book "I saw a couple of in- stances" when Hajdasz was reported to have left his work station unsupervised. Respondent placed into evi- dence the safety log for 7 April, which stated that the counselor at the location Hajdasz was assigned to was missing, and a log for 20 April, which refers back to the 7 April incident rather than indicating an additional inci- dent; Mistier testified that she initially saw this log entry a day or two later. Mistier issued two memoranda to the staff in late 1984 regarding the proper supervision of cli- ents; the first, dated 21 November 1984, states, inter alia: In order to insure the safety and well-being of the clients, please be advised that all staff on all shifts are required to be awake and alert throughout their entire shift. Further, should any staff member be found not be awake and alert, they will be immediately sus- pended. I cannot stress strongly enough the responsibility of all staff to provide appropriate supervision for the clients at all times. The other memo, dated 4 December 1984 states: Please be advised that Residential staff are re- quired to remain on duty until a replacement reports to work. This is to insure adequate client supervi- sion. If, at the end of your shift, your replacement fails to report to work, please notify your immediate su- pervisor or the Administrat[or] on Duty on campus by phone. If neither the Supervisor or the AOD are available, then contact the Safety Officer by phone and he will contact the Supervisor or AOD. Do not leave the clients unsupervised. Remain in the unit until the Supervisor arrives and advises you as to what to do., If a personal emergency arises or you become too ill to remain at work, you must call the Supervisor and advise him/her of the situation. The, Supervisor will try to arrange for coverage for your unit but you must wait until you are notified by the Supervi- sor whether you may or may not leave. You must also sign out at the Safety Office before leaving campus. At no time should the clients be left unattended. Mistier also testified that since November 1984 four named employees were dismissed for leaving clients un- supervised, but she did not elaborate on, the circum- stances of these terminations. 2. Paperwork deficiency As stated, supra, Mistier testified that Hajdasz' paper- work deficiencies was one of the factors in Respondent's decision to discharge him. She testified that another reason she sent back the original handwritten evaluation of Hajdasz is that it did not mention his problems with the required paperwork duties of the counselors. Al- though other counselors were late with their paperwork, [h]is was the most obvious. There was alot to do, but his issue was that he was-being asked to do it, and he was not willing to do it. Other people were trying to do it. He didn't seem to make an effort to do it. Hawes informed her that his paperwork was "grossly late." On 17 and 18 April the State Office of Mental Retar- dation and Developmental Disabilities conducted a "re- survey" of Respondent's operation. The formalreport is dated 7 May and received by Respondent a few days later; however, Mistier testified that on 18 April they had an exit conference where she was informed of the results of the resurvey. The report cites numerous defi- ciencies, including paperwork. As regards paperwork, the report states, inter alia, "There is a lack of documen- tation that the QMRPs' assigned to the facility are super- vising the delivery of each resident's individual plan of care." Included under this category was: "Monthly notes are missing for the month of March and do not address all service areas." Dobson testified that approximately 2 weeks prior to Hajdasz' discharge he gave him the verbal warning dis- cussed, supra, for "constant lateness with his paperwork over a period of several months." He told Hajdasi that he was following the established procedure for discipli- nary action? that the verbal warning did not go on his 7 Dobson testified that the procedure began with a verbal warning where the supervisor discussed the problem with the employee and notes of the meeting are maintained in the employee's file The second occur- rence called for a written warning that went into the employee's file. The third offense resulted in a hearing that could result in termination Mistier testified that this procedure did not apply to Hajdasz because he was still a probationary employee. Dobson was not certain whether it applied to probationary employees. NEW HORIZONS FOR THE RETARDED 765 record, but that an additional occurrence would result in a formal written warning in his personal file.8 Hajdasz said that he did not feel qualified to prepare the monthly reports. Dobson testified that although Hajdasz' monthly reports had been traditionally late, Hajdasz had never re- fused to do the reports. Either that same day or a few days subsequent, Dobson met with Hawes and Leibel as stated supra. At this meeting Hawes told Leibel that he wanted Hajdasz written up for the 7 April incident. Dobson testified further that each month since January or February Hajdasz' paperwork was late, and on each of these occasions he told Hajdasz that if he needed as- sistance, he would give it to him. The verbal warning discussed, supra, was the first formal reprimand he gave him. Dobson had not warned any other employee about his/her paperwork responsibilities . Burke testified that his responsibilities for the counselors' paperwork was only for the daily reports prepared by the counselors, and Hajdasz had no problem with that. In February or March, Dobson told him that Hajdasz was having diffi- culty with the monthly reports, but he was assisting him with them; because Dobson was working with Hajdasz on these reports, Burke did not refer to this problem in his handwritten 3 April evaluation for Hajdasz. Mande- ville testified that more often than not the counselors' pa- perwork was handed in late; the reason is that Respond- ent was understaffed. Leibel testified that although both he and Dobson were second-line supervisors over Haj- dasz, Dobson assumed most of the responsibilities regard- ing his paperwork difficulty. In about early April, Dobson told him that Hajdasz was behind in his monthly reports and he was meeting with him in an attempt to correct the situation, although Hajdasz was questioning whether the reports were his responsibilities. Hajdasz never refused to do the reports, but his resistance to pre- paring the monthly reports was persistent. Leibel testi- fied that Hajdasz was good with clients and planning ac- tivities for them, but failed to follow through on these plans. Hajdasz testified that Burke did his January paperwork for him at the end of the month; his February monthly reports were handed in late and from that time until he was fired he was often spoken to about his paperwork being handed in late. He testified further that the paper- work of other counselors was late, as well. 3. Overtime During the period of his employ with Respondent, Hajdasz worked an average of about 20 hours overtime a week. On those occasions, prior to his shift, he had in- formed the administrator on duty that he was available for the following shift if needed and, at the conclusion of his shift, he was often assigned to work the following ad- ditional 8-hour shift. He testified that he never worked more than two straight shifts without a break, he never worked an overtime shift without supervisory permis- sion, and, prior to the end of May, he was never warned about working excessive overtime hours. Leibel testified that Hajdasz' willingness and availability to work over- time was beneficial to Respondent and, to his knowledge, Hajdasz always obtained prior approval for the overtime hours he worked. Mandiville also testified that Hajdasz informed him that he was available for an overtime shift if needed and he felt this was a positive trait. Burke testi- fied that sometime in April he was informed by someone in Respondent's business office that Hajdasz had worked three or four straight shifts and, on occasion, he was not informing supervisors looking for relief employees that he had worked the prior shift or shifts. Hajdasz was in- formed at that time to inform supervision, in those situa- tions, if he had worked the prior shift; he was not given a verbal warning at that time nor, to Burke's knowledge, was he subsequently spoken to about the situation. Burke also testifed that he considered Hajdasz' willingness to work overtime beneficial to Respondent C. The Bennett Termination Bennett began working for Respondent in September 1984 as a counselor on the 3 to 11 p.m. shift. About De- cember 1985 or January 1986 he received his 90-day evaluation; about 3 months later he received his 6-month evaluation; both were "above satisfactory." Respondent alleges that Bennett was discharged for sexually harass- ing a fellow employee, Tammy Simpson, on 6 May; the General Counsel and Charging Party allege that this in- cident occurred substantially prior to 6 May, that it was meant as a joke, and was used as a pretext to discharge Bennett for his contemporaneous union activities, which Respondent was aware of. Bennett testified that the incident in question occurred 2 to 3 weeks prior to his discharge, i.e., the middle to end of April. Bennett was taking Bernard Schneider, a client who was blind and who had a severe hearing im- pairment, through the main lobby to the dining room. Simpson was sitting on a couch in the lobby and Bennett stopped by the couch and told Simpson that a client of his, George Tatakis, had a crush on her and often told him that he loved her and would like to "boop" her.9 Bennett also told Simpson that he had seen a movie about a beautiful woman who believed that she was sent to earth to have sex with unfortunate men to bring hap- piness into their lives. He told Simpson that it would be nice if she would make Tatakis happy by "booping" him. He testified that while he was telling her this he was laughing and, when he finished speaking, she laughed and said, "no way." After the incident, while he was in the dining room with his clients and Simpson with hers, he went to her table and joked with her about different subjects. Simpson testified that the incident occurred at 4:45 p.m. on 6 May; Bennett was walking with Tatakis and told Simpson that Tatakis had recently been given an IQ test and it found that he was not retarded. He said that Tatakis liked her and "that I should take twenty-four hours out of my life and take George off campus and bring twenty-four hours of pleasure into his." He also 8 Dobson had previously informed Hawes that he was going to give Hajdasz a verbal warning for his paperwork difficulties and Hawes agreed. 9 This was another word for sexual intercourse that Bennett created for the clients to use 766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD said that he had seen a movie where a man had a sex change, became a woman, and was able to satisfy all de- prived men, and if he were a woman he would take the deprived men off campus and sexually satisfy them. Ben- nett said this with Tatakis standing next to him. Simpson said that she was "just stunned" by what Bennett said; she did not laugh, nor did she speak to Bennett later that evening in the dining room . The following day she re- ported the incident to her supervisor . Simpson testified that approximately 2 weeks earlier Tatakis told her that he wanted to make love to her; she asked him where he got the idea and he told her that a staff member told him, but he was afraid to' mention his name for fear of getting in trouble. On receiving reassurance from Simp- son, Tatakis told her that it was Bennett . Tatakis also showed her a female doll he had containing female at- tributes. He said that he named her Tammy because an- other counselor said that it had female attributes that re- sembled hers. Simpson also observed that Tatakis had copies of Playboy Magazine , which was unusual for Re- spondent's clients. Tatakis told her that Bennett had gotten them for him. Leibel testified that in about April he spoke to Bennett about inappropriate comments he was making in front of clients. In addition, Bennett was conducting a sexual awareness program with a client even though he had no training for it and was giving clients inappropriate infor- mation. In addition there was another incident involving a client who Respondent was rewarding with visitation rights to her client-boyfriend for periods of good behav- ior. Bennett told her that this was against her civil and constitutional rights. There was a supervisory meeting about this incident. Leibel testified further that he often heard complaints that Bennett openly made comments of a sexual nature to female counselors. Mandiville testified that he had never known Bennett to sexually harass anyone. Shawne Eato, who has been employed by Respondent as a counselor for 2 years, testified that approximately a month before Bennett was discharged, as she was bring- ing a client downstairs she passed Bennett with Tatakis; Bennett said to Tatakis : "Wouldn't you like to get into that pretty stuff?" She ignored the comment, was not of- fended by it, and did not report it to anyone. Bennett tes- tified that he does not recall making such a comment. He also testified that early in 1985 he was directed by his su- pervisors that if any of his clients asked him a question requiring sexual information, he was to discuss it with his supervisors, rather than immediately answering the ques- tion. Mistler testified that Hawes informed her of the Ben- nett-Simpson incident; she considered it psychological abuse of a client and sexual harassment of a counselor and she told Hawes that Bennett should be terminated. "Around the time of the incident," Hawes told her that Bennett (like Hajdasz) was involved with the Union. She called Shaw and asked him if they could fire an employ- ee who was active for the Union. He told her "that if we had grounds for termination of an employee that the pos- sibility of union activities was not an issue . That we should proceed as we normally would." On the morning of 9 May,. Leibel called Bennett at his home and told him that he was suspended for sexual har- assment of a fellow counselor and he should not report for work. On 13 May, Leibel called him and told him to report to the facility for a hearing on the charges against him. At the hearing , Hawes read the statement of the charges filed by Simpson ; Bennett asked to see the state- ment and he read it. He told them of his version of the incident (as set forth, supra) that he did not mean it seri- ously, and that his purpose was misconstrued . Bennett testified that Hawes then asked :' "Is that all we have on him?" John Pernese, Respondent's psychologist, related an incident when Bennett tore apart Tatakis' bed after he had made it. Bennett was then asked to leave . A day or two later Hawes called Bennett and told him that be- cause of the serious nature of the charges against him he was being terminated . Bennett asked if it had anything to do with him signing up 50 people for the Union. Hawes said it did not, that he had no knowledge of it. Discussion and analysis Initially, some credibility determinations must be made. The principal one involves the Bennett-Simpson incident and the conflict between testimony . The impor- tance of this determination is not so much what was said (either way it was degrading to Simpson) but when it was said (the General Counsel's case would be substan- tially stronger if this incident occurred weeks before the discharge, as testified to by Bennett) and who else was present (the General Counsel's case would also be stronger if a hearing-impaired client was with Bennett- as he testified-rather than Tatakis, as there would less chance of client abuse). On the basis of my observation of these witnesses and a careful reading of the, record, I credit Simpson. The most obvious fact is that she is a disinterested party to this proceeding while Bennett clearly is not. In addition, she testified in a direct and (apparently) honest manner while Bennett had extreme difficulty answering questions directly, which caused me to doubt the veracity of much of his testimony . Addi- tionally, although much of Mandiville 's testimony is un- contradicted, I found him to be less than a totally credi- ble witness. He was discharged by Respondent , 2 months after Bennett and Hajdasz, and it appeared to me that his open prejudice against Respondent favored his testimo- ny. In Wright Line, 251 NLRB 1083 (1980), the Board set forth the rule it will henceforth apply in discrimination cases such as the instant matter: "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 established, the burden will shift to the em- ployer to demonstrate that the same action would have taken place even in the absence of the protected con- duct." There can be no doubt that the General Counsel has satisfied her initial burden regarding both Hajdasz and Bennett; they were the most active solicitors for the Union, Respondent was aware of their union activities and Bennett was discharged a few days after his solicita- NEW HORIZONS FOR THE RETARDED ^tion while Hajdasz was discharged-2-Weeks later. Wheth- er Respondent has satisfied its burden will be discussed individually. According to Respondent, Hajdasz was discharged for three areas of deficiency in his work: The 7 April inci- dent of leaving his clients unattended, his paper work difficulties, and his excessive overtime. Admittedly, Haj- dasz was not at his designated post on - 7 April for a couple of hours; rather he was doing some overdue pa- perwork with a fellow counselor. This was the only inci- dent10 established by Respondent where Hajdasz was guilty of (or possibly guilty of) client neglect. Mistler testified that she saw the log entry of Hajdasz' absence within a day or two of the incident, or by 9 April. Addi- tionally, Hajdasz' difficulty with the required monthly paperwork was well known to his supervisors since about February, as was his regular availability for over- time (if, indeed, that was actually improper), Therefore, all these alleged transgressions were known to Respond- ent in early to mid-April, yet Respondent never satisfac- torily explained why it waited 6 weeks to take action against him. Mistier referred to the state audit as a factor and, although it occurred in the intervening period, Re- spondent's paperwork difficulties were only one of many complaints by the state, agency. Additionally unanswered by Respondent was the precipitous nature of his dis- charge. About 16 May Leibel gave Hajdasz a verbal warning for the 7 April incident; about a week later (the day before he 1 was discharged) Dobson gave him a verbal warning for his constantly late paperwork. Dobson also informed him that any further occurrence would result in 'a formal written warning, yet, although there were no further incidents after 16 May, Hajdasz was discharged, on 24 May without further warning. Without minimizing the 'seriousness of the 7 April inci- dent or Hajdasz' tardiness with the monthly paperwork, that was "old news." The only recent "improper" activi- ty he had engaged in, apparently, was soliciting for the Union in early May. I therefore fmd that Respondent has not satisfied its burden and that its discharge of Hajdasz violated Section 8(a)(1) and (3) of the Act. Although Hajdasz may have deserved a warning for the 7 April in- cident at the time, and for his paperwork difficulties months earlier, no such warnings were received. It was not until after his union solicitation that he received the verbal warnings, which did not evolve naturally, but, rather, were inspired from above. I therefore find that these warnings violated Section 8(a)(1) and (3) of the Act. There is also substantial evidence that a factor in the discharge was Hawes' belief that Hajdasz was a leader in a planned sickout of the night employees. Such action by employees is protected concerted activity and a dis- charge in retaliation for such activity violates Section 8(a)(1) of the Act. As the sickout was, apparently, planned as a one-time incident, rather than a pattern of intermittent strikes, it was protected. Enamel Products & Plating Co., 236 NLRB 1611 (1978). 10 Mistler's testimony, "I saw a couple of instances where he was re- ported to have left his work station, leaving clients unsupervised," is not supported by any other evidence and is discredited 767 There, is also an allegation that Hajdasz was denied overtime work in retaliation for his union activities. The basis of this allegation is Mandiville's testimony that in mid-May Hawes told him that Hajdasz was soliciting sig- natures for the Union and that Mandiville should not assign him more overtime., As stated, supra, I found Mandiville to be a less-than-credible witness. Although Hawes did not testify (his employment with Respondent ceased on 31 October), I find it highly unlikely' that Hawes would make such statement to Mandiville or in his presence, and I shall therefore recommend that this 8(a)(1) and (3) allegation be dismissed. I fmd that Respondent,has satisfied its burden regard- ing Bennett's discharge. I have credited Simpson-that the incident occurred late in the day on 6, May and she re- ported the incident to her superiors the following day. Bennett was notified of his suspension, pending a hear- ing, on the morning of 9 May; it is not unreasonable for Respondent to take 2 days to decide whether to termi- nate Bennett, especially as they admittedly had a 'ques- tion whether an employee active for the Union could be discharged. The timing of the discharge (within days -of his union solicitation), together with the fact that his prior evaluations were satisfactory with never a warning of discharge, suggests a correlation between his ' dis- charge and his union 'solicitation. However, the 6 May incident was an extremely serious one, incomparable to those testified to by the General Counsel's witnesses. It involved comments that were both extremely disparag- ing to a counselor and, at the same time, damaging to a client. I will therefore recommend that this allegation be dismissed. CONCLUSIONS OF LAw 1. The Respondent, New Horizons for the Retarded, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. The Respondent violated Section 8(a)(1) and (3) of the Act by issuing warnings to Mark Hajdasz on about 16 and 23 May 1984. 4. The Respondent violated Section 8(a)(1) and (3) of the Act by discharging Mark Hajdasz on about 24 May 1985. 5. The Respondent did not violate the Act by eliminat- ing or decreasing overtime opportunities for Hajdasz or by discharging George Bennett. THE REMEDY Having found that Respondent has engaged in and is engaging in certain unfair labor practices it will be rec- ommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the poli- cies of the Act, to wit, that Respondent offer Hajdasz immediate reinstatement to his former position or, if that position no longer exists, to a substantially equivalent po- sition, without prejudice to his seniority or other rights and privileges. It is also recommended that Respondent be ordered to make Hajdasz whole fox any loss of earn- ings he sustained by reason of his discharge. Backpay 768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD shall be computed in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950) and Florida Steel Corp., 231 NLRB 651 (1977); see generally Isis Plumbing Co., 138 NLRB 716 (1962). I find the visitatorial clause requested by the General Counsel unnecessary herein. O. L. Willis; Inc., 278 NLRB 203 (1986). On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- edit ORDER The Respondent, New Horizons for the Retarded, Inc., Ellenville, New York, its officers, agents, succes- sors, and assigns, shall 1. Cease and desist from (a) Discharging, terminating, warning, or otherwise discriminating against its employees in retaliation for their activities on behalf of the Union. (b) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer Hajdasz immediate reinstatement to his former position of employment or, if that position is no longer available, to a substantially similar position with- out prejudice to his seniority or other rights and privi- leges, and make, him whole for the loss he suffered as a result of the discrimination in the manner set forth above in the remedy section. (b) Remove from its file any references to the warn- ings and termination of Hajdasz and notify him in writ- ing that this had been done, and that the evidence of this unlawful activity will not be used as a basis for future ac- tions against him. (c) Preserve, and on request, make available to the Board or its agents for examination or copying, all records or documents necessary to analyze and deter- mine the amount of backpay owed to Hajdasz. (d) Post at its Ellenville, New York location copies of the attached notice marked "Appendix."12 Copies of the " 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. 12 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 notice, on forms provided by the Regional Director for Region 3, after being signed by the Respondent's author- ized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60-consecu- tive days in, conspicuous places including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, 'defaced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply herewith. IT IS FURTHER RECOMMENDED that the complaint be dismissed insofar as it alleges violations not specifically found herein. the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 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 issue warnings to, our em- ployees due to their activities on behalf of Professional and Commercial Employees Union , a/w the Internation- al Ladies Garment Workers Union, AFL-CIO, or any other labor organization. WE WILL NOT in any like or related manner interfere with, restrain or coerce you in the exercise of your rights guaranteed in Section 7 of the Act. WE WILL make whole Mark Hajdasz, with interest, for any loss or earnings he may have suffered as a result of our discrimination against him; and we will offer him full and immediate reinstatement to his former job or, if that job no longer exists, to a substantially ' equivalent position without prejudice to his seniority or other rights and privileges, previously enjoyed. NEW HORIZONS FOR THE RETARDED, INC.