Council'S Center For Problems Of Living

1122 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Washington Heights-West Harlem-Inwood Mental Health Council, Inc., d/b/a The Council's Center for Problems of Living and Local 1199, Hospital and Health Care Employees Union, RWDSU, AFL-CIO' Local 1199, Hospital and Health Care Employees Union, RWDSU, AFL-CIO and Washington Heights-West Harlem-Inwood Mental Health Council, Inc., d/b/a The Council's Center for Problems of Living. Cases 2-CA-19596 and 2- CG-33 (formerly Case 2-CB-9688) July 26, 1988 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Washington Heights-West Harlem-Inwood Mental Health Council, Inc., d/b/a The Council's Center for Problems of Living, New York, New York, its offi- cers, agents, successors, and assigns, shall take the action set forth in the Order. The recommended Order of the administrative law judge as to the Union is adopted and the com- plaint in Case 2-CG-33 is dismissed. DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS BABSON AND CRACRAFT On December 31, 1985, Administrative Law Judge Winifred D. Morio issued the attached deci- sion. The Respondent Employer filed exceptions and a supporting brief, the General Counsel filed a brief in response and a brief in support of the judge's decision, and the Respondent Union filed a memorandum 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,2 and conclusions and to adopt the recommended Order. ' The Respondent Union's name was changed after the commencement of these proceedings The caption reflects the Union 's name as represent- ed in its memorandum filed with the Board February 25, 1986. 2 The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings 8 The judge found, and we agree, that the September 29, 1982 strike was an unfair labor practice strike The judge further found , applying the doctrine of Mastro Plastics Corp. Y. NLRB, 350 U S 270 (1956), that the Respondent Union was excused , because of the nature of the strike, from the notice requirement of Sec 8(g) of the Act We agree Hospital Em- ployees District 1199E (CHC Corp), 229 NLRB 1010 (1977) Although the strike was delayed 1 day from the time originally specified by the Union, we find no basis for concluding that the resultant delay operated to remove the Union's strike from the Mastro Plastics rationale Finally, the judge found that the Union , in fact, complied with the notice requirement of Sec 8(g) Having adopted the judge 's conclusion that the Union was excused from complying with the notice requirement of Sec . 8(g), we need not pass on the judge's finding of actual compliance The judge found that the Respondent Employer refused to meet with the Federal Mediation and Conciliation Service for mediation The judge found this conduct provided another basis for releasing the Respondent Union from its obligation to comply with the notice requirements of Sec 8(g). Because we adopt the judge's finding that the notice requirement of Sec 8(g) was excused because the strike was an unfair labor practice strike, we need not pass on this finding regarding the failure to take part in mediation At fn 53 of her decision, the judge relies on an alternative theory con- cerning the nature of the employees' activity on September 15, 1982, giving rise to the dispute underlying the stoke . The judge analyzes this in light of NLRB v. Burnup & Sims, 379 U S. 21 (1964). We do not rely on this alternative theory The Respondent Employer contends that the Regional Director's issu- ance of, and consolidation of, the complaints deprived it of due process. We have examined the record and have examined carefully the argu- ments on this matter We are not persuaded that the substantive or proce- dural rights of any party were prejudiced by the conduct of this hearing All parties had notice of the hearing, and of the issues, and had opportu- nity to present evidence and to cross-examine witnesses The complaints in this case involved inconsistent theories, which were predicated largely on the same facts The Regional Director 's consolidation of these cases promoted administrative and judicial economy and efficiency. The Respondent Employer's exception that the complaint in Case 2- CA-19596 is barred by Sec 10(b) of the Act, insofar as the complaint is predicated on events beyond the 6-month period, is mentless. The predi- cate facts-the events of September 1982 (including the discharges)-are not remedied by our decision, but merely indicate the nature of the later (April 1983) conduct examined in the complaint In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), interest on and after January 1, 1987, shall be com- puted at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 U S C. § 6621 Interest on amounts accrued prior to January 1, 1987 (the effective date of the 1986 amend- ment to 26 U.S C § 6621), shall be computed in accordance with Florida Steel Corp., 231 NLRB 651 (1977) Carole Sobin, Esq. and James Paulsen, Esq., for the Gen- eral Counsel. Richard J. Reibstein, Esq. and Ina A. Plotsky, Esq. (Ep- stein, Becker, Borsody & Green, PC), of New York, New York, for Respondent Washington Heights. Vicki Erenstein, Esq. (Sipser, Weinstock, Harper, Dorn & Leibowitz), of New York, New York, for Respondent Union. DECISION STATEMENT OF THE CASE WINIFRED D. MORIO, Administrative Law Judge. These cases were tried on various dates during May, June, July, September, October, November, and Decem- ber 1984 and January 1985 at New York, New York. The complaints were consolidated by order of the Re- gional Director for Region 2 on 24 January 1984. The complaint in Case 2-CA-19596, which was issued on 23 January 1984, alleges, in substance, that Washington Heights-West Harlem-Inwood Mental Health Council, Inc., d/b/a The Council's Center for Problems of Living (Employer/Center) discharged and, thereafter, refused to 289 NLRB No. 145 COUNCIL'S CENTER FOR PROBLEMS OF LIVING reinstate its employees who had engaged in a strike on 29 September 1982, which strike was caused or pro- longed by unfair labor practices committed by the Center when it discharged certain employees on 17 or 20 September 1982.1 The complaint in Case 2-CG-33 al- leges, in substance, that on or about 16 September 1982 District 1199, National Union of Hospital and Health Care Employees, RWDSU, AFL-CIO (Union) gave written notification to the Center and the Federal Media- tion and Conciliation Service (FMCS) of its intention to strike and picket on 28 September 1982 at 9 a.m. Howev- er, according to the allegation in the complaint, the Union did not commence its strike and did not began its picketing until 29 September 1982 (1 day after the time stated in its written notification) and the Union failed to notify the Center 12 hours prior thereto of its intention to engage in such conduct. The complaint also alleges that, commencing in December 1982 and continuing thereafter, the Union engaged in intermittent picketing and it failed to give written notice to the Center and the FMCS 10 days prior thereto of its intention to engage in such conduct. 2 The Center filed an answer in which it denied that it had violated the Act, and in which it as- serted several affirmative defenses, including a defense based on its position that the I 1 employees who had been discharged were engaged in unprotected activity. The Union also filed an answer in which it denied that it had violated the Act, and in which it asserted as an af- firmative defense that the strike was caused by the Cen- ter's unfair labor practices. 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 1. JURISDICTION The Center, a New York nonprofit membership corpo- ration with its principal office and place of business in New York, New York, is, and has been at all times mate- rial, engaged in the operation of a community center providing medical and professional care services for the mentally disabled . Annually, the Center, in the course and conduct of its business operations , derives gross rev- enue in excess of $500,000 and receives reimbursements valued at in excess of $50,000 from the United States Government under Medicaid and other Federal pro- grams. The parties admit, and I find, that the Center is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and a health care institution within the meaning of Section 2(14) of the Act. The parties admit, and I find, that the Union is a labor organization within the meaning of Section 2(5) of the Act. 1 The complaint also stated that if the strike was not found to be an unfair labor practice strike then it was an economic strike , and the Union gave the proper notice. 2 Motions were made during the hearing to amend the complaint in Case 2-CG-33 to include additional periods of time when the Union en- gaged in the intermittent picketing. The motion was granted. II. PRELIMINARY STATEMENT 1123 These cases present an unusual situation , as noted by the Regional Director in the order he issued when he consolidated the cases . Thus, the Regional Director stated, The Complaints referred to above are in large part mutually inconsistent because the resolution of the central unfair labor practices in both cases are depend- ent, to a great extent, on credibility resolutions which cannot be properly made at an administrative level." In Case 2-CA-19596 the General Counsel claimed that the Center violated the Act when it discharged and refused to reinstate 34 employees in April 1983 because those employees commenced a strike on 29 September 1982 to protest the unfair labor practices committed by the Center when it discharged I1 employees on 17 or 20 September 1982. The General Counsel also claimed that the Union gave proper notification as required by Sec- tion 8(g) of the Act before the strike began on 29 Sep- tember 1982. However, it was also the position of this General Counsel that although the Center is a health care facility, the Union was not required to notify the Center prior to commencing the strike on 29 September 1982 because the notification requirements of Section 8(g) of the Act are not applicable when employees engage in a strike to protest the unfair labor practices committed by an employer. However, in Case 2-CG-33 it was the position of the second General Counsel that the strike, which com- menced on 29 September 1982, was an economic strike and the Union failed to comply with notification require- ments of Section 8(g) of the Act, both with respect to the initial strike and picketing and with respect to the intermittent picketing that occurred after December 1982. In addition to the confusion caused by these inconsist- ent positions, the record in this case was complicated by the introduction of testimony concerning the discharges of 11 employees by the Center on 17 or 20 September 1982. Those discharges were the subject of earlier com- plaints in Cases 2-CA-19132 and 2-CA-19140, which were issued by the Regional Director for Region 2 in January 1983. The issues raised by those complaints, in- cluding whether the discharges were violative of Section 8(a)(1) of the Act, were not litigated because the Center executed a settlement agreement that provided for pay- ment of backpay, offers of reinstatement for the 11 em- ployees, and the posting of a notice. During the negotia- tions for the settlement of Cases 2-CA-19132 and 2-CA- 29140, the Union filed the charge in the instant case on 21 April 1983, in which it alleged that the Center had discharged 34 unfair labor practice strikers. The settle- ment agreement contained both a nonadmission clause and a reservation-of-rights clause. These clauses read as follows: 1. Reservation of Rights-The signing of this Agreement shall not preclude the introduction by any party of any evidence contained in Case Nos. 2-CA-19140 or 2-CA-19132 in any forum, in any other proceeding or investigation. 1124 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2. The instant Settlement Agreement outlines only the unfair labor practice charges in Case Nos. 2-CA-19140 and 2-CA-19132 and does not settle any other case currently pending before the Region- al Office, the Office of Appeals or the Office of the General Counsel or the Board nor does it constitute a waiver of any claim that any party may have. Notwithstanding the execution of the settlement agree- ment, the complaint in Case 2-CA-19596, the instant case, referred to the complaints, which had issued about the discharge of the 11 employees, to the fact that the discharges were in violation of Section 8(a)(1) of the Act and to the settlement agreement entered into with re- spect to those discharges. As noted, the Center, in its answer to the complaint in the instant case, admitted that it had entered into a settlement agreement with respect to the discharges, but denied that the discharge of the 11 employees constituted an unfair labor practice. Counsel for the Center, in his opening statement, said that he would prove that the 11 employees were discharged for legitimate, nondiscriminatory reasons. However, during the hearing counsel for the Center did not call witnesses to testify concerning the discharge of the 11 employees but he did cross-examine, extensively, the witnesses pro- duced by the General Counsel who testified with respect to those employees. In December 1984, several months after the hearing started, counsel for the Center made a motion to amend the answer with respect to two issues. Counsel, for the first time, contended that the settlement agreement precluded any litigation of matters relating to the discharge of the 11 employees in September 1982. Counsel also stated that some of the 34 employees who had been discharged in April 1983 had engaged in con- duct which precluded them from being reinstated. Subse- quently, counsel withdrew the contention relating to the alleged misconduct by some of the 34 discharged em- ployees, although advised by the administrative law judge that it was proper to litigate the issue in the unfair labor practice proceeding and not in the backpay pro- ceeding.3 111. WITNESSES-CASE 2-CA-19596 David White-union vice president Edward Lane-union representative Celeste Gordon-teacher therapist Dora de la Torre-mental health worker Olubayo Buchinji-social worker Rose Ann Harris-special education therapist Sandra Powell-receptionist Irma Quitcon-social worker Ernest Adams-staff psychologist Carl Baptiste-psychiatric social worker Azeeza Burston-registrar Mercedes Colinet-clerk typist Marie Font-mental health worker Kamala Mottl-psychologist 8 Although counsel for the Center contended that the Regional Direc- tor did not investigate the allegations of misconduct by some employees, he failed to offer evidence to establish that the issue was raised or that, if raised, an investigation was not conducted Audrey Singleton-purchasing agent Mary Pearl Taylor-employee Mary Harviley-emplov 'e IV. WITNESSES-CASE 2-CG-33 Dr. Clyde A. Pemberton-Center executive di- rector Dr. Ellis B. Charles-medical director Dr. Mary Sitgraves-coordinator of child and adolescent services Elizabeth Payne-coordinator of research and development Norma Burgos-coordinator of continuing treat- ment program Ana Perira-director transitional housing Terrie Reid Payne-project coordinator of com- munity residence and transitional housing Pamela Pannell-assistant project coordinator for community resident programs Alma Oglivie-mental health worker Arthur Herron-business office clerk Theodore Beasley-security Lloyd Bowers-resident counsellor4 V. THE ALLEGED UNFAIR LABOR PRACTICES A. Background The Union has been the recognized collective-bargain- ing representative since 1974 for the registered nurses and the professional and technical employees employed by the Center. The most recent written collective-bar- gaining agreement between the parties covered the period from 1 January 1979 to 31 December 1980. During the period between the expiration of that con- tract and September 1982 there was no written agree- ment between the parties, although the parties did reach agreement about wages , and this agreement , apparently, was implemented. Negotiations for a new agreement were scheduled to commence on 16 September 1982. B. Events Prior to 15 September Commencing about June 1982,6 the employees began to have discussions about what they perceived were problems at the Center. The employees drafted a petition to Dr. Clyde Pemberton, the executive director of the Center, about these problems, but the record does not reveal what happened to that petition. However, accord- ing to an employee, Olubayo Buchinji, during a staff meeting Dr. Pemberton did ask about the petition and he stated that employees would be discharged for circulat- ing any petition that was critical of the Center. At an- other point during the summer months , William Hatcher, chairman of the board of the Center, urged the employ- ees to abandon the Union and start their own in-house black union rather than continue their membership in a union that Hatcher considered to be a Jewish union. The employees reported these events to David White, a vice * Bowers was called by the Employer as a witness, although he also testified for the Union on the issue of the intermittent picketing. 5 All dates are in 1982, unless stated otherwise. COUNCIL'S CENTER FOR PROBLEMS OF LIVING 1125 president of the Union, and he wrote to Pemberton and asked him to cease making these statements to the em- ployees. Pemberton and Hatcher did not testify about these events. David White testified that beginning about July he met with the employees to discuss various problems they had, including the concern of the employees that Pem- berton's failure to sign the prior collective-bargaining agreement could result in the termination of their medi- cal benefits. 6 On 2 September, during a union meeting, the employees decided to engage in a series of demon- strations to protest these various grievances. The demon- strations were to be held from noon to 1 p.m. on the first day, from noon to 2 p.m. on the second day, and from noon to 3 p.m. on the third day. The employees also de- cided to send a 10-day strike notice. However, the strike notice was not sent and the demonstrations were not held between 2 and 15 September. On 14 September Celeste Gordon, an employee and member of the union negotiating committee, and Irma Quitcon, an employee and union delegate , met with other employees to discuss mutual concerns and they de- cided that they needed to meet with a union official to discuss their lack of knowledge concerning the negotia- tions that were scheduled to begin. Gordon contacted White and asked him to meet with the employees, and White agreed to be at the Center at noon to meet with the employees. Management representatives, frequently, had permitted White and other union representatives to meet with employees and had permitted employees to hold union meetings on the premises . These meetings, generally, were held at noon or after 5 p.m. in room 153. According to undisputed testimony given by Quitcon, under a prior administration it had been necessary for employees to request permission, verbally, to use room 153 and permission had been granted if the room was not being used for other functions. Quitcon testified that sometime prior to the events in this case there had been a conflict between two sections of the Center about the use of the room and, thereafter, Dr. Sitgraves had stated that if a group wanted to use the room they would be required to post on the door of the room when the room would be occupied and if such a notice was not posted the room could be used by others. Quitcon did not state that Sitgraves, specifically, referred to the use of the room for union meetings but she, apparently, assumed that the statement included use of the room for such pur- poses. Quitcon did not state when she checked to see if the room was available, but she claimed that she did check and found that the only meeting scheduled for 15 September was the regular staff meeting in the morning. It is undisputed that no specific permission to use the room for a union meeting was given by any employer representative. It is unclear about when or how the em- ployees became aware that a union meeting was sched- uled for 15 September. C. Events on 15 September Wednesday, 15 September, was the day when regular- ly scheduled staff meetings were held and when employ- ees received their paychecks . The staff meeting was held between 9 and 11 a.m. and was attended by members of the bargaining unit and representatives of management, including Pemberton . According to the employees who testified, at the end of the staff meeting an employee an- nounced that the union meeting scheduled for noon would not be held until 2 p.m. It is unclear whether Pemberton was present when this announcement was made. Pemberton did not testify concerning this incident. White testified that when he realized that he would be unable to be at the Center at noon he called the Center and explained the difficulty . An unidentified employee responded that it would not cause a problem, employees could rearrange their lunch schedules to be present for the meeting at 2 p.m. The record reveals that at that point the Center did not have specific hours for lunch periods or breaktimes, employees took their free periods whenever it was convenient for them to do so.7 In addi- tion, on alternate Wednesdays the employees were al- lowed an extra one-half hour to cash their paychecks and there was no set time when they had to use this free time. Gordon, Buchinji, Harris, and de la Tone, unit em- ployees, testified that they used their lunch period to attend the meeting. Thus, Gordon testified that on 15 September, at some point after noon, she took a cab to a nearby bank to cash her check. After she cashed the check, which did not involve more than 15 to 20 min- utes, she returned to the Center where she worked until 2 p.m. when she went to the union meeting . Gordon ini- tially testified that she used her lunch hour to attend the meeting. On cross-examination, Gordon conceded that in a note she gave to Pemberton, after she received a disci- plinary letter, she told him that she had been at lunch be- tween 1 :30 and 3 p.m. on 15 September . Gordon ex- plained that she was entitled to take the 1-1/2 for lunch because she was allowed an hour for lunch and two 15- minute break periods. Buchinji testified that she went to the union meeting between 2 and 3 p.m. and she used her lunch period to attend the meeting , although she admit- ted that there was a notation in her appointment book that her lunch hour on that day was at 1 p.m. Harris tes- tified that after she left the staff meeting she met with a coworker and discussed with her various problems about parents and family groups. The discussion lasted for about 1 -1/2 hours, and she then returned to her own office where she continued to work. Harris claimed that she used her lunch hour to attend the meeting. De la Tone testified that after the staff meeting she cashed her check, and then saw clients until 2 p.m. when she attend- ed the meeting. She admitted that she had a 2 :30 p.m. but she claimed that she told the receptionist where she would be in the the patient arrived. This was not an un- usual procedure at the Center. The patient did not On 16 September Pemberton, by memo, advised all supervisory em- ployees that they were "hereby directed to strictly adhere to assig g specific lunch periods to each staff person ." In July 1983, supervisory ° There had been some rumors that benefits would cease if Pemberton employees were advised that commencing in August 1983 the official did not sign some agreement . lunch hours would be between 12 and 2 p.m. 1126 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD arrive. De la Torre also claimed that she used her lunch period to the meeting. The union meeting was held at 2 p.m. in room 153 and it was chaired by White. The Center did not call wit- nesses with respect to this event. White and employees Celeste Gordon, Olubayo Buchinji, Roseanne Harris, and Dora de la Torre did testified and although their testimo- ny varied in some respects they were in agreement about many of the details of the overall event. According to the testimony of the above-named individuals, the meet- ing began with a discussion about Pemberton's failure to sign the prior contract, the possibility of a loss of em- ployee medical benefits, and the coming negotiations. At some point, the employees decided to ask Pemberton to attend the meeting to ascertain why he had not signed the contract, and White instructed Richard Villa, a union representative, to find Pemberton to ask him to attend the meeting. As Villa left the room, Pemberton entered through another door, asked White what he was doing there, told White to leave, and instructed the employees to return to work. White responded that it was a regular union meeting and that he would leave when the meet- ing was finished. According to Gordon and Quitcon, the employees attempted to tell Pemberton that they were on their lunch hour, but he refused to listen to them and left the room. Notwithstanding Pemberton's instructions, White claimed that he continued the meeting because he thought permission had been secured to hold the meet- ing. After Pemberton left, Dr. Charles, the medical di- rector, entered the room, he had a notepad, and he ap- peared to be taking the names of those employees who were present. Subsequently, Pemberton returned and, ac- cording to the employees, they tried again to speak to him but he refused to talk, said the meeting was illegal and that he had a job action on his hands and he left the room. Charles returned and he made a list of the em- ployees present in the room. There is no evidence that there was any discussion about a strike or demonstration during this meeting. According to White, as he was about to conclude the meeting, about 3 p. m., some em- ployees entered the room and said that the timecards had been pulled. White, together with a large number of the employees, went to the second floor to speak with Pem- berton about the timecards. Pemberton's office, as well as areas for patients, is on the second floor. White and the 10 employees were stopped in their efforts to see Pemberton by a security guard, and White explained that the employees wanted to speak to Pemberton about the missing timecards. The guard relayed the message but Pemberton refused to meet with anyone but White. White, however, refused to meet Pemberton without an employee being present. According to White, he refused to see Pemberton alone because union policy prohibited the union representatives from meeting with employer representatives without the presence of an employee del- egate in order to avoid any claim of a "sell out" to man- agement. The record does not reveal the exact number of em- ployees who went to the second floor after they discov- ered that their timecards were missing, although Celeste Gordon estimated that there were about 30 to 40 em- ployees on the second floor. According to Gordon, she had no appointments scheduled for the afternoon of 15 September.8 On direct examination, Gordon testified that after the union meeting she went to the second floor where she remained for only a few minutes. However, on cross-examination, Gordon admitted that she was on the second floor between 3 and 4 p.m.9 Buchinji claimed that after the meeting she went to the second floor where she remained for about 10 minutes before she re- turned to her office to ask the receptionist whether a client, who was scheduled for a 3 p.m. appointment, had arrived. Buchinji was not sure whether it was before or after 3 p.m. when she questioned the receptionist about whether the patient had arrived. Buchinji admitted that when she was told that the patient had not arrived she returned to the second floor, where she remained be- tween 3:15 and 5 p.m., except for two occasions when she left to check about whether the client had arrived. Harris claimed that after she attended the meeting she re- turned to her office where she worked until 4:30 p.m., her regular quitting time. Harris maintained that she did not go to the second floor and did not know that the timecards had been pulled until she went to clock out and found her card was not in the rack. She went and told her supervisor, Guerrero, about it and she signed a paper to indicate the time she left. De la Torre testified that after the meeting she went to her office, picked up charts, and returned them to the medical records section, which was on the second floor. She then returned to her office on the third floor where she saw Pemberton and Charles who said hello to her. De la Tone admitted that a patient who was scheduled for a 3 p.m. appointment had signed in the patient's logbook at 2:50 p.m., but she did not see that patient. De la Tone claimed that some- time after 3:30 p.m. she was told by a coworker that the timecards had been pulled and she went to the second floor to find out what had happened but she remained there only a few minutes and then she returned to work where she stayed until 5 p.m. Some of the employees who testified claimed that the employees who assembled on the second floor were or- derly when they arrived in the vicinity of Pemberton's office. However, the picture that emerged from the testi- mony of other employee witnesses and White was that the second floor was a scene of confusion and noise. Em- ployees were milling about, chanting in unison that they wanted their timecards, and demanding to see Pember- ton. This state of noise and confusion continued until about 4:45 p.m. when the police advised White and the employees that if they did not leave the premises they would be arrested. White then stood on a chair and di- rected the employees to leave because their dispute was not with the police but with the Center. The employees then left the premises. At some point, while the events 9 Counsel for the Center attempted to establish that Gordon had failed to keep appointments scheduled that day by use of service rendered doc- uments (SRD), which are reports of the employee 's daily activities. How- ever, the document was rejected because there were unexplained era- sures, cross-outs, etc, on it 9 In a note that Gordon sent to Pemberton, dated 20 September, she objected to the amount of time Pemberton had docked from her pay but admitted that he was entitled to dock her for the time between 3 and 4 p M. COUNCIL'S CENTER FOR PROBLEMS OF LIVING 1127 described above were in progress , employer representa- tives decided to close the doors to the Center. Accord- ing to White, he viewed the combined actions of the re- moval of the timecards and the closing of the Center as a lockout. He then instructed his office to send the 10-day strike notice. D. The Warnings-16 September When the employees arrived at work on 16 Septem- ber, they found that their timecards were not in the rack but there was a notice that directed them to report to the second floor, which they did. When the employees ar- rived on the second floor they were not permitted to sign in but were told to remain until their names were called. About 9:30 a.m., Charles called the first employ- ee, Lydia Thomas. When Thomas entered the room she was handed a letter, which stated that the employees had engaged in an illegal work stoppage on 15 September, had ignored a direct order to return to work, and that such action in the future might result in their termina- tion, and they were docked for the hours between 2 p.m. and the close of their regular duty. When the other em- ployees became aware of the contents of Thomas' letter, they demanded that Richard Villa accompany them to their meeting with Pemberton. Villa's efforts to attend the next meeting caused a confrontation between Pem- berton and Villa, which almost resulted in a physical fight between the two men. After approximately a half- hour, Villa and Ida Newton, an employee and delegate, were allowed to be present when the employees received their disciplinary letters. Approximately 26 employees re- ceived these letters at 5-minute intervals and, apparently, each employee was asked to sign a receipt that they had received such a letter which, on advice of the union rep- resentative, they refused to do. Celeste Gordon testified that while she waited for her letter she asked Charles on several occasions to allow her to leave the floor to attend to the children who were her responsibility and Charles refused to allow her to do so. About 10:30 a.m., Gordon was called into Pember- ton's office, given a disciplinary letter, and told by Pem- berton to leave the floor. Roseanne Harris claimed that she was called into Pemberton's office between 11 and 11:15 a.m., was given a disciplinary letter, and told by Pemberton to return to work. Dora de la Torre stated that she did not receive her letter until about noon. She did not testify that Pemberton told her to return to work but she did admit that she heard Charles about 10:30 a.m. tell employees to return to work, when they received their letters. According to Olubayo Buchinji, she was called to Pemberton's office about noon, where she re- ceived a disciplinary letter from Pemberton who asked her to sign it, which she refused to do. Buchinji did not recall that Pemberton told her to return to work. Thus, according to the combined testimony of these employee witnesses, the procedure involving the issuance of these letters commenced about 9:30 a.m. and continued at least until noon on 16 September and at some point during that time the employees were told to return to work when they received their letters." o E. Employees Draft Letter-16 September On 16 September, after they received the disciplinary letters, some employees drafted a letter of protest to Pemberton about the disciplinary letters that they had re- ceived. The only testimony concerning the drafting of this letter was given by Gordon, de la Torre, Buchinji, Harris, and White. According to their testimony, a number of employees went to the first floor of the Center and at some point between 11 a.m. and 2 p.m. they drafted the letter of protest. The record does not disclose the names or numbers of all the employees who engaged in this activity. Gordon testified that after she received her letter of discipline she went to the nursery, which was her usual workplace. The children in the morning session appar- ently had been supervised by another employee while Gordon waited for her letter of discipline . It does not appear that there were children in the nursery when Gordon arrived because she testified that she spent some time putting toys away and arranging the room for the afternoon session. Gordon claimed that as she was doing this work Supervisor Orlando Guerrero passed by and observed her in the room . Guerrero did not testify. At some point, after 11 a.m., other employees came to the first floor, where the nursery is located, and they decid- ed to draft a letter to Pemberton to protest the discipli- nary letters they had received. Gordon joined the group who were drafting the letter and, according to her, the entire process took only a few minutes. She then went to lunch and later returned to the nursery for the afternoon session. Gordon could not recall who was present when the letter was drafted. De la Torre claimed that after she received her letter of discipline, around noon, she went to the first floor where she observed that employees were drafting a letter to Pemberton. De la Torre admitted that she remained with the group who were drafting the letter for about 50 minutes. In her testimony, de la Torre claimed that the employees drafted the letter between 1 and 2 p.m. and at that time she was on her lunch hour. However, in an earlier unemployment hearing de la Torre stated that she took her lunch period on that day at 12:20 p.m. and she finished at 1 p.m. Buchinji stated that after the employees received the disciplinary letters they decided to go to the first floor to discuss what they should do. When they arrived on the first floor, about 12:30 p.m., the employees decided to draft a letter of protest. Buchinji denied that she was in- volved in drafting the letter, although she admitted that she stayed on the first floor for about 20 minutes. Bu- chinji could not recall who drafted the letter or the name of any employee, other than Kamala Mottl, who was present when the letter was being drafted, although she stated that the employees who were present were the 10 Although counsel for the Center attempted to establish, on cross- examination, that all employees had received their letters by 10 :30 a in., there was no credited testimony offered to support that contention. 1128 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD employees who had received the disciplinary letters that morning. Buchinji claimed that she saw Gordon in the nursery with one of the children while the employees were drafting the letter. She did not recall whether de la Torre, Harris, or Chris Sowley were present. According to Buchinji, she thought the drafting of the letter took about 20 minutes, after which she left and returned to work. Buchinji did not recall if she saw any patients be- tween noon and 1 p.m. but she thought she took her lunch period between 1 and 2 p.m. on that day. Harris testified that after she received her letter of discipline, she returned to work where she assisted Randolph" to find the children. At about noon, she joined the employ- ees who were preparing a letter to management and she remained with them for about 10 to 15 minutes. She did not recall Gordon, de la Torre, or Buchinji being in the vicinity when the letter was drafted. After about 10 to 15 minutes, she left, had lunch, and returned to work. According to White, when he came to the Center around noon on 16 September everything appeared to be normal and, in fact, he saw Pemberton and said hello, and Pemberton responded. White testified that he did ob- serve that two employees, who he thought were Kamala Mottl and Chris Sowley, were engaged in writing a letter to Pemberton but he did not observe that any other employees were with them at the time. White testi- fied that although he had "misgivings" about the letter writing, he did not express these feelings to the employ- ees. The evidence fails to reveal that the employees who engaged in this letter writing were noisy, disruptive, or interfered with patient care. F. Negotiations-16 September The first negotiation meeting was scheduled for 16 September and, notwithstanding the events of 15 and 16 September, the meeting was held as scheduled at 3 p.m. in room 271 at the Center. An attendance sheet was signed at the start of the meeting, and an examination of that document establishes that the Center was represent- ed by Pemberton, Charles, Sitgraves, and other Center representatives, including Geven Wise, Rosemari Mealy, 12 Thurmon, Myers, and Halif Braithwaite. The Union was represented by White, Villa, two other un- identified union representatives, and employees, Gordon, Newton, Adams, Quitcon, Bowers, and Baptiste. White presented the Union's proposals to Pemberton.l a How- ever, before the parties discussed the proposals, White requested Pemberton to sign the collective-bargaining agreement, which Pemberton had failed to do, for the period from January 1981 to June 1982. Pemberton re- fused to discuss that issue on the ground that it was not a proper subject for the present negotiations. White then requested that Pemberton sign an interim agreement in order to allow employees to continue to receive their benefits. There was some discussion about Pemberton's belief that there was some collusion between union rep- resentatives and representatives of the fund over the con- tinued payment of benefits. At some point, White asked whether the events of 15 and 16 September could be dis- cussed and Pemberton refused to discuss the matter, con- tending that the warning letters that had been issued were the result of actions by the board members of the Center and were not a proper subject for the negotia- tions. The parties then discussed the various union pro- posals, including the term of the contract, the wages, va- cation periods, daycare for children of employees, etc. There was no agreement reached on any issue. Pember- ton testified that prior to the meeting he had decided that he would listen to the Union's proposal and not make any specific proposals of his own. At the conclu- sion of the meeting, White proposed that the parties engage in round-the-clock negotiations, a suggestion re- jected by Pemberton because he believed that the Union had delayed the start of the negotiations. The witnesses for the Center claimed that the Union set the date of 22 September for the next meeting and they agreed. The Union's witnesses claim that it was the Center's repre- sentatives who set the date and they accepted. In any case, the next meeting was scheduled for 22 September. As the meeting was about to conclude, Pemberton re- ceived notification that the Union had sent the Center a telegram about the start of a strike. The next day the Center received the telegram, which stated that the Union would commence its strike on 28 September 1982 at 9 a.m. This was the only written notification that the Center received. G. The First Discharges-17 September Employees worked their usual schedules on 17 Sep- tember. However, at 5 p.m., when employees went to punch out, some 13 employees discovered that their timecards were not in the rack. These employees went to the second floor where they received letters of termina- tion from Pemberton, Charles, or other managerial repre- sentatives. The employees refused to accept these letters because they had not received their paychecks. These letters then were rescinded, but on 20 September when Mary Austen, Olubayo Buchinji, Dora de la Torre, Ingrid del Rosario, Lillian Font, Celeste Gordon, Bever- ly Gould, Rose Ann Harris, Kamala Mottl, Christopher Sowley, and Lydia Thomas arrived at work they re- ceived letters of termination.14 The letter the employees received stated the following: Following your signing into work on September 16, 1982 and your receipt of a warning letter, you were specifically instructed to return to your work sta- tion. This you refused to do. Indeed the substantial time which elapsed until you reported to your work station, leads to the determination that you again participated in a work stoppage, that of the a.m. of September 16, 1982. 11 Randolph is the daughter-in-law of Hatcher, the head of the Center. 12 This name appears in the record with different spellings, but the at- tendance sheet was signed as noted above 18 There was some conflict between Pemberton and Charles over who chaired the meeting and who was the main speaker for the Union How- ever, it appears that it was White who had the main role for the Union Other than the statement contained in the letter of termi- nation, employees were not told specifically on 20 Sep- 14 It is not clear from the record why the number of discharged em- ployees changed from 13 to 11 between 17 and 20 September. COUNCIL'S CENTER FOR PROBLEMS OF LIVING 1129 tember the reason for their discharge . White testified that when he went to the Center on 20 September he asked Pemberton why the 11 employees had been discharged and Pemberton replied that he had discharged those em- ployees who had engaged in work stoppages on two oc- casions, i.e., on 15 September and on 16 September. The record discloses that the 11 employees who were dis- charged were on the list prepared by Charles at the union meeting on 15 September . 16 However, the record fails to reveal the basis on which the Center determined that these 11 employees had engaged in a work stoppage on 16 September or when that alleged stoppage had oc- curred on 16 September. During the hearing, the parties entered into a stipula- tion with respect to the reason for the discharge of the 11 employees. The stipulation, in pertinent part, states, "The discharges were in part based upon the warnings which were previously issued to those employees on 16 September 1982, as described above in paragraph 2."16 H. The Union Meetings-20 and 21 September After the discharge of the 11 employees, a union meet- ing was held at a nearby church . The meeting, which was attended by a substantial number of the bargaining unit employees, was chaired by White and it focused on the discharge of the 11 employees. Although there were some variations in the testimony given by Gordon, Harris, de is Torre, Buchinji, and White, the one fact about which they agreed was that the employees decided to engage in a strike rather than a demonstration and that the discharge of the 11 employees was the reason for this decision. 17 It appears that at this meeting the employees decided that the strike would commence on 28 September. A second union meeting was held on 21 September, also in the church. At this meeting an employee, Ida Newton, reminded the employees that 29 September was a payday and if they struck on 28 September they might not receive their paychecks. The employees decided to change the day the strike would commence from 28 Sep- tember to 29 September. It is undisputed that the Union did not give written notification to the Center or FMCS about this change of dates. I. The Negotiations-22 September The second negotiation meeting was held, as sched- uled, on 22 September in room 271 at the Center. The Center was represented by Pemberton, Charles, Sit- graves, Braithwaite, Mealey, Ansari, and Myers. The Union was represented by White, Adams, Baptiste, Gordon, Bowers, Quitcon, and Newton. Pemberton, Charles, and Sitgraves testified about this event for the Center. White, Adams, Baptiste, Gordon, and Quitcon testified for the Union about the meeting. The meeting lasted for 2 hours. According to Pemberton, the meeting began with a discussion of whether the Center would sign the 1981-1982 contract or an interim agreement and he advised the union representatives again that those issues were not proper subject matters for discussion. He also advised the union representatives that the Center was prepared to continue the employee benefits and he then began to discuss the Union's proposals. He stated that the Center would not agree to the inclusion of a hiring hall clause, but would consider hiring individuals referred by the Union . Pemberton testified that at this meeting he agreed to the concept of a daycare program, to the Union's proposal on severance pay, and he made a counteroffer with respect to the Union's wage proposal. At some point, according to Pemberton, White apolo- gized for what had occurred on 15 September and stated that if he had known that permission to use the room had not been obtained he would have dismissed the meeting. White indicated that if Pemberton had ap- proached him in a less hostile manner he would have ended the meeting, but Pemberton's actions in front of the members had placed White in a difficult position. White then asked Pemberton to reconsider the actions taken by management over the events of 15 and 16 Sep- tember and Pemberton responded that the decisions made because of those events were decisions by the board, he could not overrule them but he would relay any proposal that White wanted to make about the matter to the board. The union representatives then cau- cused and when they returned White offered to put in writing his apology about the events of 15 September and he asked when the next meeting could be held. Ini- tially, according to Pemberton, Adams proposed 24 Sep- tember for the next meeting, but that date was rejected by both Pemberton and White. 18 Adams then proposed 27 September, which White, after checking a black ap- pointment book, rejected. '9 Adams then asked whether 29 September was an acceptable date and, at that point, Quitcon whispered something to Adams . According to Pemberton, he heard the word "strike" mentioned by Quitcon but he did not hear the rest of the conversation. White then said that the Union had given the 10-day strike notice and they were free to strike at the expira- tion of the 10 days within a 72-hour period. White also said that if the Union did not strike in the 72 hours it would be necessary to give a new notice but that would not pose a problem. Both parties agreed to meet on 29 September. Pemberton denied that either White or any other union representative stated when the strike would 15 The parties entered into a stipulation with respect to the names on the list prepared by Charles. 16 Although counsel for the Center signed this stipulation, he did so subject to his objection about the introduction of any testimony or evi- dence pertaining to the termination of the 11 employees in mid-Septem- ber 1982. 17 In a telegram sent by White to Pemberton, on 5 October 1982, he stated that the reinstatement of the discharged employees "would open the way to negotiate all issues." Union literature issued after the strike started also referred to the discharges as the reason for the strike. is on 24 September, white did write a letter to Pemberton in which he stated that had he been aware that permission to use the room had not been secured he would not have continued the meeting , and he requested Pemberton to reinstate the "discharged employees because such an action would be a great step toward coming to an understanding between the administration and the Union." 19 Pemberton, subsequently, testified that the discussion about possible dates occurred among the union representatives , and the Center's repre- sentatives were not party to those discussions. He also stated that he did not object to any date. 1130 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD occur. He also denied that any union representative used the words, "hit the street." The testimony given by Sitgraves and Charles about this meeting was substantially the same as the testimony given by Pemberton. Both denied that any union repre- sentative stated that the strike would begin on 29 Sep- tember. Sitgraves recalled that after the union represent- atives caucused, White said that the Union was free to strike within 72 hours of the 10-day strike notice. Ac- cording to Charles, after White proposed the date of 29 September there was some "agitation" on the Union's side of the table, someone passed a note to White and White said he knew what he was doing, and they could meet 29 September. White's testimony about the events on 22 September was similar in many respects to Pemberton's testimony. According to White, Pemberton agreed to the Union's proposal on severance pay and agreed to the concept of a daycare program. White claimed that he asked Pem- berton to reconsider the discharge of the employees and Pemberton agreed to discuss the matter with the board members. White explained that he did not know the meeting on 15 September was unauthorized, if he had known he would not have held it. According to White, when the union members heard this statement, they became upset and he asked for a caucus. White went out- side with the members and they told him that they had engaged the room as they had in the past and there was no reason why White should apologize to Pemberton. White told the members that if he had to apologize to get the discharged employees reinstated, he would do it. The employees also were upset that White had agreed to meet on 29 September because that was the day the strike was to begin. White told the employees that they had to meet in order to avoid a strike. White testified that when the union members returned to the meeting, he told the Center's representatives that "we have a mar- riage, that we are here and we are going to stay here." White also claimed that he told the Center's representa- tives, "If we have not settled the issues that exist be- tween us by the 29th, when the 29th comes we're going to find ourselves on the street." White testified that he did not explain why the date of the strike was changed to 29 September. Celeste Gordon testified, initially, that after the union members caucused they returned to the meeting and it was at this point that White said that he was unaware that the union delegate had not secured permission to use the room on 15 September and he apologized for the dis- turbance. White then said that the Center and the Union had to learn to live together, that it was like a marriage, the parties had to work out the details and if they could not work it out, "then we were going to walk on the 29th-we were going to strike Wednesday." On cross-ex- amination, Gordon stated after White apologized for the events of 15 September, the Center's .representatives said that the next negotiation meeting should be on 29 Sep- tember and then the union members caucused to discuss the date suggested by the Center. According to Irma Quitcon, when the union members returned to the meeting after their caucus, White said that the Center and the union had a marriage, they had to work together, he was willing to work 24 hours a day until the following week and that if within that week they had not reached agreement the Union would strike the following Wednesday. Quitcon claimed that it was the Center's representatives who set 29 September as the next day for negotiations and that when the union mem- bers caucused, they discussed whether they could meet because the strike was set for that date and White told them they had to meet with the Center's representatives for negotiations, notwithstanding the possibility of the strike. Quitcon did not recall White looking at a black notebook and she denied that White set the dates for the next meeting or that she conferred with Adams about the dates. Adams testified that after the parties discussed the Union's proposals, White apologized for the confronta- tion on 15 September. Adams also claimed that the Cen- ter's representatives proposed 29 September for the next negotiation meeting. The union members asked White to caucus because they wanted to express their displeasure to him about his apology. During the caucus, White told the members that he would do anything to get the em- ployees rehired. The group then discussed why White had agreed to meet on 29 September when the strike was set to start on that day and White responded that noth- ing could interfere with the negotiations. The members then returned to the room and White told the Center's representatives that the Union was not going away. He said they did not want to walk on 29 September, but they would do so if they had to. Adams recalled that White did look at an appointment book but he denied that White conferred with him or Quitcon about the date for the next negotiation session.20 Carl Baptiste claimed that at this meeting on 22 Sep- tember the parties discussed the Union's proposals, and then White spoke about the employees who had been discharged and apologized for the events of 15 Septem- ber. Baptiste testified that the union members were upset by White's apology and asked for a caucus. During the caucus, White explained that he would do anything he had to do to get the discharged employees reinstated. The union representatives then returned to the meeting and White repeated that he would do everything possible to get the employees rehired. White then told the Cen- ter's representatives that the Center and the Union were like a married couple; they had to sit down to iron out their difficulties. At this point, according to Baptiste, White stated that if they worked out their difficulties it would not be necessary to "walk" but if no agreement was reached the Union would have no other choice other than to be on strike on 29 September. Baptiste also testified that it was the Center's representatives who pro- posed 29 September as the next day for the negotiations. As noted, Lloyd Bowers was an employee-member of the negotiating team and a representative of the Union at the meeting on 22 September. Bowers was called, initial- ly, as a witness by the Center. Bowers was not asked to testify about what happened at the meeting on 22 Sep- 20 In the affidavit given by Adams in the investigation, Adams stated that he did not recall whether the parties set a date for the next meeting at the meeting of 22 September COUNCIL'S CENTER FOR PROBLEMS OF LIVING tember. However, he was asked when he first learned that the Union was going to strike on 29 September. Bowers responded that he secured that information from other employees in the late afternoon on 28 Septem- ber.2 t J. Strike Preparations-22 to 27 September Although Charles claimed that he held individual meetings with coordinators' 2 between 22 and 28 Sep- tember, he did not testify about the details of those meet- ings. Terri Reid Payne, a project coordinator, testified that on 22 September she attended a regularly scheduled junior management meeting, chaired by Charles, during which there was a general discussion about what coordi- nators would do in the event of a strike . This meeting was attended by Sitgraves, Braithwaite, and coordinators Norma Burgos, Rose Fabian, Gil Calcano , Lavernne Crumpler, and Marvin Sessions. On direct examination, Payne testified that those present at the meeting dis- cussed who would be available to work in the event of a strike. On cross-examination, Payne claimed the coordi- nators were told by Charles to bring information about their units to the meeting on 22 September , at some point before the meeting, but she was confused about when or where the coordinators were given these instructions. She also recalled, on cross-examination, that at this meet- ing Braithwaite stated that the Center would provide transportation for those who wanted to work. According to testimony given by Sitgraves, on 22 Sep- tember she attended a regularly scheduled coordinators meeting, which was chaired by Charles . During the meeting, she discussed how her unit would operate if a strike occurred, and the number of staff members who would be available. Sitgraves claimed that she was not given any particular assignment for which she was to be responsible in the event that there was a strike . Someone did mention at this meeting that a notice had been re- ceived and that the strike was to commence on 28 Sep- tember. Norma Burgos, coordinator of the adult day treatment program, testified that about a week prior to the strike23 a special meeting was called to decide what arrange- ments needed to be made in the event of a strike. The meeting was held in the conference room at the Center and Pemberton, Charles, Ana Perira, Thurman Myers, Elizabeth Payne, Marvin Sessions. and Wade were present. Burgos stated others also may have been present at the meeting.24 The discussion centered around what coverage would be needed in each unit in the event of a strike, who would be available, and what food would be needed. However, according to Burgos , the specific date that the strike was to commence was not mentioned, al- though because of the strike notice it was anticipated that it would be 28 September. It was Pemberton's testimony that he held two meet- ings with members of senior management to discuss ai Bowers returned to work after being on strike for several months. sa Coordinators are considered members of junior management ss This would be about 22 September. 24 On crossexamination, Burgos recalled that Braithwaite was present at the meeting and she thought that he was ,designated strike coordinator. 1131 preparations for the strike. The first meeting was held on 24 September and the second meeting was held on 27 September. The first meeting was held in room 271, the conference room at the Center, and was attended by Charles, Braithwaite, Elizabeth Payne, acting administra- tor, and Ana Perira, director of transitional housing. Al- though Pemberton claimed that copies of a strike plan were distributed at this meeting , other witnesses who tes- tified about the meeting did not refer to that fact and Charles, who was asked about such a plan , denied that a written strike plan was reviewed at the meeting on 24 September and denied that copies of such a plan were made available to those present at the meeting .25 Pem- berton also claimed that at this meeting he designated Braithwaite as strike plan coordinator and he directed the others to refer any questions to Braithwaite and he instructed Braithwaite to secure the names and phone numbers of those employees who would not be on strike. Braithwaite was not called to testify. It was Pemberton's testimony that at this meeting he announced that the strike would commence on 28 September, that staff leaves would be canceled, and that the staff would be re- quired to start work at 8:30 a.m. rather than 9 a.m., the usual starting time. The most significant change that Pemberton claimed he announced at this meeting concerned the adult day treatment program, which was normally located at the Center. Pemberton testified that he directed that the pro- gram be transferred from the Center to the Hudson Hotel and he advised those present that Perira would be in charge of the program. He claimed that he instructed Perim to arrange for the transfer of medical records and medication for the clients to the hotel and he told her to secure a catering service to provide food for the clients at the hotel. According to Charles, the adult day treat- ment program is a clinical program , normally under the direction of Norma Burgos, who was located at the Center. Burgos was not present at this meeting, allegedly because she was sick on that day. However, it does not appear from this record, that she was advised about the transfer of this program, nor does it appear that others on her staff were at the meeting or advised of the trans- fer. Perira was in charge of the transitional program and in that capacity she was responsible for the housing pro- gram, which, according to Charles, was not a clinical program. Perira, in her capacity as head of the transition- al program, prior to the events in this case , spent part of her time at the Hudson Hotel. The second meeting, Pemberton testified, was held in his office on 27 September. Present at this meeting were Charles, Braithwaite, and Elizabeth Payne. During the meeting, Braithwaite advised Pemberton that he had not completed the list of employees' names and phone num- bers and Pemberton instructed him to finish the process. There was some discussion about the possibility of moving some units from the fourth to the first floor of the Center and about having all phones ring on the first 25 Charles did testify that prior to the meeting on 24 September he personally reviewed a strike plan, which he had in his files and which had been prepared for an earlier strike. 1132 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD floor. Pemberton directed Braithwaite to contact the phone company to make the necessary arrangements. Charles' recollection of these meetings differed in some respects from the testimony given by Pemberton. Charles testified that the meeting held on 24 September was a joint meeting with senior management members, Pemberton, Braithwaite, Sitgraves, Mealy, Perira, and Guerrero, and coordinators Myers, Burgos, and Dr. Ji- minez in attendance. Pemberton chaired the meeting and he announced that the meeting was being held because of the strike that was scheduled to begin on 28 Septem- ber. However, as noted, Charles did not recall any men- tion about a strike plan. Pemberton announced at the outset that staff members would have to be assigned to different posts to ensure that the Center would continue to operate. The group decided that children in the child care program would enter the building through the base- ment to avoid potential danger and that it would be the responsibility of senior staff to supervise the classrooms. In addition, the group agreed that the adult day treat- ment program and the staff responsible for it would be transferred to the Hudson Hotel, and catering services would be contacted to provide food at the hotel for the clients. There were also discussions about where pickup points should be located for nonstriking employees. Charles did not recall a meeting held in Pemberton's office, which was attended by only Pemberton, Charles, Braithwaite, and Payne. However, he did recall a meet- ing on 27 September that was held in the conference room and was attended by the same people who had been at the meeting on 24 September. At this meeting, individuals reported on their progress with respect to the duties that had been assigned to them at the earlier meet- ing. Braithwaite reported about the employee list that he was preparing, Guerrero explained about his contacts with various ambulette services, and Sitgraves discussed her investigation into the availability of catering services. It was Sitgraves' testimony that she attended a meeting that took place on 24 September at which Pemberton, Charles, and coordinators Sessions, Myers, Mealy, and Guerrero were present. During this meeting, Sitgraves discussed how her unit would operate, about the man- agement of Guerrero's unit, which she supervised, and about contacting parents to assure them that the daycare program would be in operation. During this meeting, those present were told that the strike was expected to commence on 28 September. Sitgraves did not testify that during this meeting plans were made to transfer the adult daycare program to the Hudson Hotel, nor did she testify that Pemberton discussed a strike plan or re- viewed such a plan with those who were present. Sit- graves claimed that at this meeting she was given the as- signment of contacting catering services to provide food for the staff who would be transferred to the hotel. However, she did not contact catering services because she claimed that she was not given information beyond the meeting of 24 September "as to a strike being more imminent and our needing to have food brought in for that day, so I didn't contact them."26 26 Sitgraves testified that she was not convinced in her mind that there was going to be a strike Ana Perira testified that she attended a meeting on 24 September at which Pemberton, Charles, Braithwaite, and Elizabeth Payne were present and during which Pemberton told the group that there would be a strike the following week. At the meeting, Pemberton decided that the adult day treatment program would be trans- ferred from the Center to the Hudson Hotel and be under her supervision. She was instructed to arrange for the transfer to the hotel of the records and medication for those patients in the program and told also to make arrangements for food to be delivered to the hotel for the patients. Perira testified that Pemberton instructed that these changes be completed by 28 September but she was not told during the meeting when the strike would start. Elizabeth Payne, who was acting administrator at the time of these events,27 testified that she was unaware of any specific preparations or plans that were made for the strike before it started. Payne stated that on the Tuesday before the strike started, at a regularly scheduled man- agement meeting, there was a general discussion based on what had happened in an earlier strike, that supervi- sors would be responsible for the duties of employees who were on strike. She was also present on the next day for part of a regularly scheduled meeting for coordi- nators during which there was a general discussion about what had happened in an earlier strike. Payne denied that she attended any meeting where Pemberton appoint- ed Braithwaite as strike plan coordinator or where he re- quested Braithwaite to make a list of the names and tele- phone numbers of nonstriking employees. Payne also denied that she was present at any meeting before the strike started at which Pemberton reviewed a written strike plan or distributed copies of such a plan. In fact, according to Payne, if such plans were distributed it would have been her job, as acting administrator, to make the distribution. In response to a question whether there was a written strike plan, Payne replied, "To the best of my recollection there was something from a pre- vious strike, but I don't recall anything from this strike and I wasn't present at the first strike." Payne also testi- fied that there had been no discussion at any meeting at which she was present, before the strike started, about the transfer of the day treatment program to the Hudson Hotel or about the need to secure a catering service. It was Payne's testimony that the first meeting that she at- tended where plans for the strike were discussed oc- curred 1 week after the strike started. According to Perira, after Pemberton's instructions to her about the transfer of the adult treatment program, she had a meeting with Terri Payne, project coordinator, and Marla Delgado and Pam Pannell, assistant project coordinators, on 27 September. Perira claimed that during this meeting she discussed with Payne, Delgado, and Pannell the transfer of the adult day treatment pro- gram to the Hudson Hotel and she instructed Payne and Delgado to call those clients in the Supportive Living Program to tell them to report to the hotel, rather than 27 Payne was not employed by the Center at the time of the hearing It appears that she had been discharged. COUNCIL'S CENTER FOR PROBLEMS OF LIVING 1133 to the Center, on the following day. Perin also told the staff to make certain that medications of those patients who were to be transferred were current and that there was sufficient medication. According to Perira, she di- rected Payne to arrange for food to be at the hotel for the clients and to have files and chairs transferred to the hotel and to rearrange staff schedules to provide suffi- cient daytime coverage. Payne testified that on 27 September, about 2 p.m., she attended a meeting with Perim, Delgado, and Pannell during which Perira advised them that the adult treat- ment program was to be transferred to the Hudson Hotel. During the meeting, Perira told Payne to instruct Delgado and Pannell concerning their duties in the event a strike occurred and told her also "to look into food preparation for the day treatment program that was going to be moved to the Hudson residence ." At this meeting, Payne then instructed Delgado and Pannell to change their schedules and to begin work the following day at 9 a.m., rather than noon, to contact clients and tell them to go to the Hudson Hotel, to check clients' medications to determine if they were current, and to ar- range to have chairs transferred to the hotel .28 Payne admitted that she "did not take any steps in terms of the food preparation." According to Pannell, on 27 September at a meeting with Perira, Payne, and Delgado,29 she was told to con- tact clients to tell them to report to the Hudson Hotel the following day. She also was instructed to transfer cli- ents' files and chairs to the hotel and, after the meeting, she had a member of the staff make the transfer of the files and chairs and she called about 15 clients and told them that because a strike was expected the adult day treatment program was being transferred to the hotel on the following day. K. Pemberton and FMCS-27 September On either 17 or 24 September, but after the strike notice had been sent, Herbert Robinson, a commissioner with the FMCS, went to the Center and attempted to meet with Pemberton . However, Pemberton refused to meet with the mediator, according to Pemberton, be- cause it was his opinion that Robinson had not helped when the Center requested his assistance to resolve an issue about a wage dispute that existed between the par- ties. On 22 September, Robinson forwarded telegrams to both the Center and the Union requesting their presence at a meeting with the mediator on 27 September at 11 a.m. On 24 September, Pemberton responded that he could not attend because he had a prior commitment and because the notice had not allowed him sufficient time to appear. In fact, although Pemberton claimed that he was away from the premises at some point in that day, the record reveals that he was at the Center for at least some period of time during the morning of 27 September and after 1:30 p.m. in the afternoon. Pemberton did not sug- gest that the parties meet with the mediators at another as Payne testified that she directed Delgado and Pannell to check the clients' medication with Dr. Ford because he was present at the Center on Mondays. 29 Delgado did not testify. time on that day or any other day. According to Pem- berton, he had decided not to meet with the mediators because he did not believe there then existed a need for mediation. The union representatives, apparently, un- aware that Pemberton had refused to come to the meet- ing, were present for the meeting at the mediators' office on 27 September. L. The Center-The Hudson Hotel At the time of the events in the instant case, the Center operated a transitional housing program, which appears to have been funded by the Office of Mental Health of the City of New York. The purpose of the program was to prepare individuals who had been insti- tutionalized in mental institutions for some time for a return to living in the community. The program was di- vided into two major parts, under one part , the Super- vised Living Program, clients who came directly from the institutions were housed at the Hudson Hotel and were under 24 hours' direct supervision by staff members of the Center. As the clients progressed they were trans- ferred to the second part, the Supportive Living Pro- gram, where the time of direct supervision by the staff was reduced to 8 hours a day and where the clients re- sided in apartments or with their families at various loca- tions in the community.so Patients in both programs reported to the Center for the adult day treatment program , which was under the direction of Norma Burgos and which occurred between 9 a.m. and 3:30 p.m. After the completion of the pro- gram, the clients in the 24-hour supervised program re- turned to the Hudson Hotel, which was their residence, while those in the 8-hour supervised program returned to apartments in the community. The record establishes that prior to 28 September, the Center had for some time operated a number of pro- grams at the Hudson Hotel . In July 1982, the Center re- ceived certification from the State to operate a communi- ty resident program at the hotel and since about that time negotiations had been in progress between the Center and the city for the Center to assume the entire management and operation of the hotel to commence on 28 September. Perin, testified that in anticipation of the Center's assumption of responsibility for the operation of the hotel, sometime prior to 28 September, she had hired a manager, security guard, secretary, and handyman. Pemberton testified that on 20 September he spoke with a Donald Powells I about the possibility of employ- ment with the Center. According to Pemberton, Powell was notified on 20 September that "he was to come aboard as an employee of the Center effective Tuesday, the 28th."32 When asked why Powell was hired, Pem- berton stated the following: so It appears that some clients in this program were tenants in apart- ments in the hotel. 31 Pemberton had worked with Powell at the Bronx Psychiatric Center. 32 Pemberton claimed that he spoke to Powell again on 24 September but he did not disclose the details of that conversation, other than to indi- cate that it concerned Powell's employment with the Center. 1134 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Mr. Powell was being hired along with about six other employees of the Bronx Psychiatric Center to provide coverage to the Adult Day Treatment and Transitional Housing Programs . To escort patients from the apartment program, the Supportive Living Program, to the Hudson Hotel in the event that there was difficulty in the patients getting from apartments to the Hudson Hotel. On 27 September, Pemberton introduced Powell to Perira and told Perira that Powell would be coordinating the new staff to be hired from the Bronx Psychiatric Center and that he should be at the Hudson Hotel the following day. Pemberton advised Powell that he would report to Perira who was the director of the unit. Perira indicated that Pemberton told her in this conversation on 27 September that Powell was hired to assist her with the community residence program during the strike. M. Events of 28 September Perira testified that beginning about the time when the Center began operating the residency program at the Hudson Hotel, in July, it was her custom to stop at the hotel before she went to the Center and in anticipation of the takeover of the management of the hotel she had been in the habit of arriving early at the hotel. On 28 September, she arrived at the hotel at 8:15 a.m. and she observed Pemberton's car outside the hotel. It is unclear from the record whether Perira had expected Pemberton to be at the hotel. When she went upstairs she met Pem- berton who introduced her "to a group of fellows who had come from Bronx State who were going to assist me in carrying out the-maintaining the community resident program." Perira claimed that at the time she observed staff members directing clients to the north wing of the hotel. These clients, who Perira claimed had been ad- vised to either stay at the hotel or to come to the hotel on 28 September for the treatment program, included not only those in the Supervised Living Program but also those clients who were in the Supportive Living Pro- gram.33 Perira claimed that about 9:15 a.m. on 28 Sep- tember she received a phone call and as a result of that call she told the staff that the clients could return to the Center because there was not going to be a strike. The adult day treatment program was then conducted at the Center on both 28 and 29 September.34 Perira returned to the Center after 9:15 a.m. and began to make arrange- ments for the transfer of the management of the hotel from the existing operators to the Center. Pannello, who was a member of Perira's staff, also re- called that she saw clients from the adult day treatment program who were in the Supportive Living Program at the hotel on the morning of 28 September, but she also could not recall the name of any client. Terri Reid Payne claimed that when she went to the Center on the a8 Penra could not recall the names of any of the clients who were in the Supportive Living Program who came to the Hudson Hotel on 28 September 94 According to Penra, at some point after 29 September the Center began to operate a treatment program at the hotel This was a new pro- gram for clients with an acute illness as opposed to those who were con- sidered chronically ill morning of 28 September, around 9 a.m., she saw no evi- dence of a strike and she called the hotel, spoke to Perira, and told her that it did not appear that there was going to be a strike. Payne remained at the Center. Pemberton claimed that on 28 September, about 7:30 a.m., he went to the Center, drove around the Center, and then went to his office where he remained for about 45 minutes. He then left the Center and proceeded to the Hudson Hotel where he met Powell and three or four other new employees. He awaited the arrival of Perira and when she arrived he introduced her to the new em- ployees. Pemberton testified that during the time that he was at the hotel he did observe clients but only those cli- ents who were residents of the hotel. Although as noted Perira and Pannell testified that on the morning of 28 September they saw clients at the hotel who were in the Supportive Living Program and who, therefore, normally would not be at the hotel, they admitted that they could not recall the names of any of these individuals. Their testimony about this issue is in conflict with that of Charles. Charles, in response to a question whether patients in the adult treatment program who were not residents of the hotel came to the hotel on 28 September, responded: That's not precise. That's not correct. I would have to change part of that statement to indicate that its occasion in October, Friday the 1st of October when we first began taking patients over. N. Conversations Regarding the Strike Several employees testified about alleged conversa- tions they had with their supervisors about the strike. Marie Font, a mental health worker whose supervisor was Norma Burgos, testified that on 23 September, after a strike vote had been taken, she had a conversation with Burgos. During the conversation, Burgos asked her what had happened at the meeting and she told Burgos that the employees had voted to strike. On the following day, when Font was in Burgos' office, Burgos told her to bring her notes up to date before she went on strike on 29 September. During a staff meeting on 28 September, in the presence of Gabriel Mack and Allen Anderson,35 Burgos asked Font not to discuss the strike with the cli- ents. Later that day, according to Font, as she was leav- ing work with two employees, Colinet and Naut, Burgos told the group that she would see them in a few months. Burgos admitted that during the week before the strike started the members of her staff worked on records in an effort to bring them up to date. However, she denied that she directed her staff members to do this. She also denied that she had a conversation with Font about the strike or that she told Font, Colinet, or Naut on 28 Sep- tember that she would see them in a few months. Mercedes Colinet, a clerk typist, testified that her su- pervisors, Norma Burgos and Rose Fabian, the clerical coordinator, spoke to her about the strike. According to Colinet, on 28 September, at some point between 1 and 3 ss The record established that Mack and Anderson were on Burgos' staff They were not called to testify COUNCIL'S CENTER FOR PROBLEMS OF LIVING 1135 p.m., Fabian told her that the Center would provide transportation for those employees who wanted to work, but Colinet told Fabian that she was going to strike. On 28 September Burgos also asked-her for her keys and told her that she wanted them because Colinet was going on strike the next day. Burgos then told Colinet, Marie Font, and Marie Naut that she would see them in a few months. Colinet claimed that on 28 September there was general talk about the strike starting the next day. Fabian did not testify and Burgos denied that she asked Colinet for her keys or told her that she would see her in a few months. Audrey Singleton, who was purchasing agent at the time of the relevant events,36 testified that on 28 Sep- tember Mary Brown, who was her supervisor, called her to her office before lunch and at that time they had a conversation about the strike . During the conversation, Brown asked Singleton for the keys to her desk and told her to leave her bank because she knew the employees were going to strike the next day. Singleton claimed that she also had a conversation with Elizabeth Payne, the acting administrator, on 28 September. During this con- versation, Payne asked Singleton whether she was going to strike the following day and when Singleton replied that she was going to strike , Payne told her that she did not have to strike and she showed Singleton an article in the New York Times that explained that employees did not have to join a strike called by a union. Payne also advised Singleton that the Center would provide buses for those employees who did not strike and she told Sin- gleton the locations where the employees could meet the buses. Brown did not testify and Payne denied that she spoke to any employee on 28 September about the strike. Azeeza Hurston, who was evening registrar at the time of the events in this case, testified that at the end of the day on 28 September when she turned in her papers to Elizabeth Payne , as was her usual practice, Payne told her that the people who did not come to work on the following day would be fired . Payne expressed the hope that Hurston would not be one of the employees who did not report to work . Hurston replied that management had put her in the unit and, although she had not voted to strike, she would strike the next day. That night Hur- ston received a call from Mary Brown , who was her su- pervisor. Brown told Hurston that she knew that Hur- ston did not want to strike and the Center was prepared to provide bus service for her. Hurston rejected the offer. As noted, Brown did not testify and Payne denied that she spoke to any employee on 28 September about the strike. 0. Security-The Picketing Security services for the Center are supplied by the New York City Health and Hospital Corporation. Lieu- tenant Theodore Beasley, who has been employed by that corporation since 1963, was in charge of the security services at the Center. On 16 September, Pemberton no- tified Beasley that the Center was to be on strike alert and that the alert was to become effective on 20 Septem- ber. According to Pemberton , he made the decision to put the Center on strike alert because he was about to discharge those employees who he thought had engaged in work stoppages on 15 and 16 September and he antici- pated that there would be problems . Pemberton spoke to Beasley about the strike again on 24 September but he denied that in that conversation or any other conversa- tion he told Beasley that the strike was to commence on 29 September. Beasley testified that at the Center there are three tours of duty; the first tour is from midnight to 0800, the second from 0730 to 1530, the third from 1530 to 2400 hours. There are three security officers on duty on the first tour and four officers on the second and third tours and the officers, on a rotating basis, make entries in a logbook which is maintained in accordance with regula- tions of the Health and Hospital Corporation. It was Beasley's responsibility, at the time of the events in this case, to see that the logbook was maintained and that se- curity conditions and other events that occurred at the Center were entered into this book. According to Beas- ley, when Pemberton advised him to put the Center on strike alert he spoke to all the security officers about the possibility of a strike and he instructed them to make en- tries in the logbook about the number of pickets, when the picketing began, and what the pickets did while at the Center. Despite these instructions , Beasley admitted that on several occasions, he was not certain how often37 the officers failed to make entries about the pres- ence of pickets at the Center when , in fact, they had been present. Beasley testified that on some occasions he failed also to record in the logbook the presence of pick- ets at the Center. The logbook was not corrected in either situation. The record also establishes that not all entries in the logbook were made on the basis of first- hand knowledge by the officer who made the entry and that the officer who was at post 1 , where the logbook was maintained, could not see the vehicular traffic en- trance from that post. Beasley did not have an independ- ent recollection about the presence or absence of pickets at any point between September 1982 and August 1983, but relied rather on entries made in the logbook on that issue. An examination of the logbook establishes that Beasley was on duty on the first tour on 28 September . On that tour, and on subsequent tours on that day, there were the usual number of officers on duty for each tour. Addition- al officers were not added and officers on duty were not required to work overtime. An entry made in the log- book on 28 September, about 5 p.m., notes, "Mr. Cavin Allen, the field representative,38 called in reference to the strike 9/29/82, Wednesday." The entries made on 29 September, unlike the entries made on 28 September, es- tablish that additional officers were on duty on 29 Sep- tember. Thus, according to an entry in the logbook, there were six officers rather than the usual four officers on duty for the tour that began at 7:30 a.m. and the log- J° Singleton was employed with the Government at the time of the hearing. 37 He thought it might not have occurred more than 10 times. 38 Allen was a representative for the Health and Hospital Corporation. 1136 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD book contains the notation next to their names, "emer- gency standby." It is the position of the General Counsel that the fact that the logbook does not contain references to the pick- ets for certain periods of time proves that the pickets did not engage in continuous picketing, but rather engaged in intermittent picketing and, when so engaged, they failed to give the proper notification. The following are the periods when the General Counsel contends that the pickets were not present at the Center: 1982 December 16 through December 23, inclusive December 29 through January 3, inclusive 1983 January 5 through January 27, inclusive January 19 through February 11, inclusive February 21 through February 24, inclusive February 28 through March 14, inclusive March 16 through April 25, inclusive April 29 through May 11, inclusive May 16 through May 18, inclusive June 23 through June 27, inclusive June 29 through July 28, inclusive August 3 through August 5 , inclusive August 17 through August 19, inclusive It is undisputed that the picketing, which commenced on 29 September, was continuous from that day through 16 December. An examination of the logbook reveals that there were several days in that period when no en- tries were made about the presence of pickets. Thus, on 29 September there is the following entry, "Tour #1 re- lieved but remaining on duty due to strike." There is no reference in any entry made on that day, the first day of the strike, about the presence of pickets. Although there is an entry on 1 October about strike conditions "being on," there is no reference to the presence of pickets. Fur- thermore, there is no reference about the strike or pick- ets in the entries made on 2, 3, 4, 6, and 9 October. A similar situation exists with respect to other days in Oc- tober and November. The entry for 1 December states that a police officer was present at the picket line.39 Al- though there is no mention whether pickets were present, there is the possibility that they were because the police were present. The entry for 3 December states that no demonstrators were present; however, at some point on that day Brathwaite called and requested the police who had left to return to the Center. The log entry does not state that pickets were present but again an inference can be drawn that they were present be- cause of Brathwaite's request for the police to return to the site. The first entry for 6 December states that no demonstrators were present, however, later entries indi- cate that there were communications between the Center and the police department about whether police could be made available for duty at the Center. There are three entries for 7 December, none refer specifically to the se This same type of entry was made in logbooks in October and No- vember. presence or absence of pickets but one entry does state that the police were removed after consultation with Pemberton. The entries for 8, 9, and 10 December also do not refer to the presence or absence of the pickets but they do contain references to the presence of police at the site. The first time that pickets are mentioned in the first 2 weeks of December is on 13 December, and the entry on that date states, "the `pickets' have arrived (4) pickets." In the period between 16 and 23 December, when the General Counsel contends there were no pickets at the site, the log entries establish the following facts. The en- tries for 16, 17, 20, 21, and 22 December state that police were present at the site, they do not mention whether pickets were present or absent. However, the entry for 17 December refers to the police being on duty at the picket line and at another point on that date it states that there were two police officers "who were on strike patrol." Thus, the entries for the period from 16 through 22 December are similar to the entries made in October, November, and the first 2 weeks of December when the General Counsel does not dispute that pickets were present. In both the period before 16 December and the period thereafter, although there is no mention about the presence of pickets there, are references to the presence of the police at the site. The second period when the General Counsel con- tends that pickets were not present at the site is from 29 December 1982 through 3 January 1983. The logbook for that period does not state that pickets were present but it does state that police were present at the site on 29 and 30 December. In the entry for 3 January, the officer noted that there were no police or pickets at the site. The log entries for the period between 5 and 17 Janu- ary, a period when allegedly there were also no pickets at the site, establishes these facts. There is no reference to either the police or the pickets in the entries for 5 Jan- uary; the entry for 6 January states that the police made a check on strike conditions and on 7 January the entry states that there were no police or pickets present at the site. There is no reference to the police or pickets in the entries made between 7 and 17 January. On 18 January, the logbook contains a notation that there were 10 dem- onstrators on the picket line. In the period between 19 January and the end of April, the logbook contains several references to the police and/or the strike. On 25 January there is a nota- tion that the police called the check on strike conditions; on 2 February there is an entry that Beasley was in- structed to allow all strikers, except those who had been discharged, to enter the building; on 11 February the logbook contains the statement that the Union was plan- ning a demonstration on 14 February, and on 14 Febru- ary; there is another reference to a union demonstration. A later entry for that day contains the statement that a union rally was going on; on 15 February there is a nota- tion that the police had called to report about the possi- bility of another demonstration and there is a reference to the police being "on patrol for the strikers"; on 16 February there is another notation about demonstrators being on the picket line and about the police being COUNCIL'S CENTER FOR PROBLEMS OF LIVING present; on 18 February there is a notation that five dem- onstrators were walking the picket line; on 14 February the logbook contains a reference to police officers being present at the Center but it is unclear if they are present because of the strike; 40 on 25 February there is an entry about strikers walking the picket line; on 16 March there is an entry about strike walkers putting up a picket line and walking the line; on 26 April there is an entry that states that Pemberton directed Beasley to call the police to ask them to clear pickets from the main gate; on that day there is also a notation about demonstrators at the main gate; and later on that day there is a notation that six demonstrators were walking the picket line, on 28 April there is a notation that 10 demonstrators were at the main gate. In the period between the end of April and 11 May, there are no entries about police or pickets being at the site, but there are references about the union demonstrators in the entries made on 12, 13, 19, 20, 24, 26, 27, and 31 May. There are also references to the presence of strikers/or demonstrators in the entries made for 2, 3, 6, 7, 9, 10, 15, 16, 19, 20, 22, and 28 June; 29 July, 2, 8, 9, 10, 11, 16, 10 22, 23, and 26 August. It was the position of the Union that the picketing was continuous throughout and in support of that position it submitted documentary evidence in the form of attend- ance and lunch money sheets, the testimony of Edward Lane, a union representative ,41 and the testimony of em- ployees Lloyd Bowers, Audrey Singleton, Kamala Mottl, Mary Pearl Taylor, Mary Harviley, and Mercedes Co- linet. According to White, the Union maintained attendance sheets either at the strike headquarters located near the Center or at times at the picket line. Strikers were re- quired to sign these sheets before they commenced pick- eting, although at times strikers signed them at various times during the day when they picketed. It was the re- sponsibility of the strike committee and the organizers to see that these sheets were signed. Strikers were also re- quired to sign sheets when they received lunch money on the day they picketed. Lane testified that he went to the strike headquarters "each and every day" except Christmas Day. According to Lane, initially he had not been in charge of the strike headquarters but beginning in December he assumed re- sponsibility for the headquarters and when he took charge he posted the attendance sheets on the walls of the strike headquarters and he directed the strikers to sign these sheets. He also required strikers who received lunch money to sign the list maintained for that purpose. Lane claimed that he picketed every day that he went to the headquarters through August 1983 and he picketed on an average of 5 hours a day. Lane also claimed that at times he was the only person picketing, but this oc- curred in early morning and as the day progressed other strikers joined him. A comparison of the days when the General Counsel contends there were no pickets and the 40 There are several references during the entire period to the presence of the New York city police at the Center because of problems with the clients. 41 Lane was a former employee of the Center who had been terminat- ed. There was an arbitration about the discharge and the Center had been directed to reinstate Lane but had not done so at the time of this hearing. 1137 days when Lane's name appears on the attendance sheet establishes the following: Alleged Absences of Pickets 16 to 23 December 29 to 3 January 5 to 17 January 19 January to 11 February 21 to 24 February 28 February to 14 March 16 March to 25 April 29 April to 11 May 16 May to 18 May 23 to 27 June 29 June to 28 July 3 to 5 August 17-19 August Lane's Name on Attendance Sheet 16, 17, 20-23 December 29 and 30 December 2, 5, and 14 January 21, 24-28, and 31 January; 1, 2, 3, 7-9, and 19 February 22-24 February 1-4 and 7-11 March 16-18, 21-25, and 28-30 March; 5-8, 20, 22, and 25 April 29 April; 3, 5, 9-11 May None 23, 24, and 27 June 29 and 30 June; 1, 5-8, 11- 15, 19-21, and 25-27 July 3-5 August 17-19 August Bowers testified that when he picketed he signed the attendance sheet at the strike headquarters. According to Bowers, the Union paid the strikers a weekly allowance and therefore the strikers were required to sign when they picketed. An examination of these sign-in sheets es- tablishes that Bowers signed in on the 21, 22, 23, and 29 December and on 5, 14, 25, and 26 January.42 Kamala Mottl picketed until May 1983 when she re- turned to work. Mottl claimed that she picketed every day between September 1982 and May 1983 for about 3 or 4 hours a day. She testified that usually she picketed early in the day but she also picketed in the afternoon and evenings. She claimed that she picketed every day that she signed the list for lunch money, however, there were times when she picketed but did not sign the at- tendance sheet. According to Mottl, after she returned to work in May she observed pickets every day at the Center and after work she would be at the strike head- quarters to lend support to those on strike. Mottl testified that at times there were many pickets at the picket line and at other times there were only one or two pickets. Mottl claimed that there were a few occasions when she was the only picket. According to Mottl, the employees picketed on a continuous basis and although she claimed that she usually carried a sign when she picketed, she ad- mitted that not all those who picketed carried signs. Mottl signed the attendance sheets on 20-23 and 29-30 December; 14, 15, 25, and 26 January; 1-3, 14, 16, 18, 23, and 24 February, 1, 2, 4, 9, 15, 17, 18, 22-25, and 28 March; 5 and 20 April; and 3, 13, and 25-27 May. Her name appears on the lunch money list on 3, 7, 10, 11, 18, and 19 January, and 12 April. Mary Pearl Taylor, who also was a striker, testified that she picketed at the Center and that when she picket- ed she signed an attendance sheet at the strike headquar- 48 Bowers also signed in on 20 December , however, he apparently did not picket but went to the unemployment office. 1138 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ters. She also claimed that she picketed on the days that she received lunch money and that she signed when she received the money. Taylor testified that she never spent less than 3 hours picketing and on some days she picket- ed for as much as 6 hours. There were times when sever- al other employees picketed with her and times when she was the only picket. Taylor's name appears on the at- tendance sheets on 16, 21, 23, 27, and 30 December 1982; 5, 14, and 26 January 1983; 1, 2, 7, 8, 14-17, 23, and 28 February 1983; 1-3, 8-11, 14, 18, 22, 28, and 31 March 1983; 1, 15, 19, 21, 25, 28, and 29 April 1983; 9, 11, 12, 23, and 25-27 May 1983; 22-24, and 30 June 1983; 6, 8, 11, 14, 15, 21, and 27 July 1983; 3, 17, and 18 September 1983. Her name also appears on records that indicate she received lunch money on 10, 13, and 20 January 1983; 4 and 28 February 1983; and 11, 12, and 14 April 1983. Mary Harviley, Audrey Singleton, and Mercedes Co- linet, employees who also went on strike, basically testi- fied that on the days they picketed they signed attend- ance sheets and when they received lunch money when they picketed they signed to indicate that they had re- ceived the money. The records establish that Harviley signed attendance sheets on 4, 5, 14, 21, 24, 28, and 31 January 1983; 1-3, 7, 9, 10, 16-18, 22, 25, and 28 Febru- ary 1983; 1-4, 7, 11, 14-18, 21-25, 28-30, and 31 March 1983; 4-8, 18, 19, 21, 22, 25, 26, and 29 April 1983; 3-6, 9, 10, 22, 12, 13, and 16-20 May 1983; 23, 24, 29, and 30 June 1983; 1, 5-8, 11-15, 19, 20, 22, 25, 27, and 28 July 1983; and 3, 4, and 18 August 1983. The records also es- tablish that Harviley signed the lunch sheet records on 3, 6, 7, 11-13, and 18-20 January 1983; 4 and 28 February 1983; 11, 12, and 14 April 1983; 28 June 1983; and 22 and 29 July 1983. Singleton's name43 appears on the attendance sheet records on 16, 20, 21, 22, 28, and 30 December 1982; 4, 14, and 24 January 1983; 2, 7, 9, 14-18, 23-25, and 28 February 1983; 1, 3, 7-9, 14-17, 22, 24, 28, and 30 March 1983; 18, 19, 21, 22, 26, and 28 April 1983; 2, 3, 6, 10-13, 16, and 18 May 1983; 22 and 29 June 1983; 5-7, 11-12, 18, 20-21, 25, 26, and 28 July 1983; and 2, 3, and 8 August 1983. Singleton's signature appears on the lunch sheets on 16, 21, 28, and 30 December 1982; 3, 4, 6, 7, 10-13, 19-20, and 31 January 1983; 11 February 1983; 11 April 1983; and 9 August 1983. Colinet's signature appears on attendance sheets on 16, 17, 21, 22, 27, 29, and 30 December 1982; 4, 21, 25, 26, and 31 January 1983; 1, 2, 8, 9, 16-18, 22, 23, 25, and 28 February 1983; 1, 3, 8, 9, 11, 14-16, 18, 21, 24, 25, 28, 30, and 31 March 1983; 5, 6, 8, 15, 18, 19, 21, and 22 April 1983; 2, 4, 9, 10, 11, 19, 20, 25, 27, and 31 May 1983; 23, 24, and 29 June 1983; 1, 12, 15, 19, 20, 22, 26, and 27 July 1983; and 3, 5, 18, and 19 August 1983. As noted above, the General Counsel contends that from the 16 December 1982 through until August 1983 there were 13 different periods of time when the Union ceased picketing and then resumed it without giving the proper notification to the Center. However, Lane, Bowers, Singleton, Taylor, Colinet, Harviley, and Mottl testified that they signed either an attendance sheet or a 49 Singleton testified that she usually signed the attendance sheet but on occasion someone signed her name for her lunch money sheet or both on the days when they pick- eted. An examination of those records establishes that there is either an attendance sheet or a lunch money sheet signed by Lane or one or more of the striking em- ployees for each day in the different periods of time when the General Counsel contends that there was no picketing. The strike began on 29 September and continued until August 1983. On 4 October 1982, a few days after the strike started, White reiterated the Union's request that the 11 employees be reinstated and stated that strike was in support of those who had been discharged. It does not appear that the Center responded to this appeal. On 15 April 1983 the Center discharged the 34 em- ployees in the instant case. During the hearing, the Center stipulated that the employees were discharged be- cause they had engaged in an strike in violation of Sec- tion 8(g). Discussion A. The Alleged Denial of Due Process It is the position of the Center that it was denied due process with respect to the investigation and trial of this case and in support of that position the Center raises cer- tain arguments. The Center contends that the Regional Director failed to conduct an independent investigation in this case, and relied on the earlier complaints that had issued in Cases 2-CA-19132 and 2-CA-1940 with re- spect to the allegation that it was the Center's unfair labor practice in discharging 11 employees on 20 Sep- tember which caused or prolonged the strike. The Center also contends that it was "patently impermissible" for the General Counsel to include in the instant com- plaint any reference to matters contained in those prior complaints in view of the fact that those cases had been settled and withdrawn. The Center further argues that the complaints in the instant cases that were issued simul- taneously, involve inconsistent theories of law and, there- fore, they negate each other. Moreover, the Center claims that the Regional Director continued to deny the Center due process when he consolidated these cases and refused to allow counsel for the General Counsel in the 8(g) case to cross-examine witnesses or to give counsel for the Center access to the Board's investigative file in order that he might properly fulfill the prosecutorial role, which had been abandoned by the counsel for the General Counsel. The Center argues that the result of this improper consolidation resulted in a lack of confi- dentiality that normally exists when a charging party produces witnesses and documentary evidence in support of its position. Finally, the Center claims that counsel for the General Counsel in the 8(g) case, unlike counsel for the General Counsel in the 8(a)(3) case, failed to rebut the affirmative defense advanced to the 8(g) case and thereby failed to introduce sufficient evidence to prevail on the 8(g) complaint. An examination of all these arguments advanced by the Center discloses that they can be divided into three sections; the failure by the Regional Director to investi- gate certain allegations contained in the 8(a)(3) com- COUNCIL'S CENTER FOR PROBLEMS OF LIVING 1129 tember the reason for their discharge . White testified that when he went to the Center on 20 September he asked Pemberton why the 11 employees had been discharged and Pemberton replied that he had discharged those em- ployees who had engaged in work stoppages on two oc- casions, i.e., on 15 September and on 16 September. The record discloses that the 11 employees who were dis- charged were on the list prepared by Charles at the union meeting on 15 September . t a However, the record fails to reveal the basis on which the Center determined that these 11 employees had engaged in a work stoppage on 16 September or when that alleged stoppage had oc- curred on 16 September. During the hearing , the parties entered into a stipula- tion with respect to the reason for the discharge of the 11 employees. The stipulation, in pertinent part, states, "The discharges were in part based upon the warnings which were previously issued to those employees on 16 September 1982, as described above in paragraph 2."16 H. The Union Meetings-20 and 21 September After the discharge of the 11 employees, a union meet- ing was held at a nearby church. The meeting, which was attended by a substantial number of the bargaining unit employees, was chaired by White and it focused on the discharge of the 11 employees , Although there were some variations in the testimony given by Gordon, Harris, de la Torre, Buchinji, and White, the one fact about which they agreed was that the employees decided to engage in a strike rather than a demonstration and that the discharge of the 11 employees was the reason for this decision.17 It appears that at this meeting the employees decided that the strike would commence on 28 September. A second union meeting was held on 21 September, also in the church. At this meeting an employee, Ida Newton, reminded the employees that 29 September was a payday and if they struck on 28 September they might not receive their paychecks. The employees decided to change the day the strike would commence from 28 Sep- tember to 29 September . It is undisputed that the Union did not give written notification to the Center or FMCS about this change of dates. 1. The Negotiations-22 September The second negotiation meeting was held, as sched- uled, on 22 September in room 271 at the Center. The Center was represented by Pemberton , Charles, Sit- graves, Braithwaite, Mealey, Ansari, and Myers. The Union was represented by White, Adams, Baptiste, Gordon, Bowers, Quitcon, and Newton. Pemberton, Charles, and Sitgraves testified about this event for the Center. White, Adams, Baptiste, Gordon, and Quitcon testified for the Union about the meeting. The meeting lasted for 2 hours. According to Pemberton, the meeting began with a discussion of whether the Center would sign the 1981-1982 contract or an interim agreement and he advised the union representatives again that those issues were not proper subject matters for discussion. He also advised the union representatives that the Center was prepared to continue the employee benefits and he then began to discuss the Union's proposals. He stated that the Center would not agree to the inclusion of a hiring hall clause, but would consider hiring individuals referred by the Union. Pemberton testified that at this meeting he agreed to the concept of a daycare program, to the Union's proposal on severance pay, and he made a counteroffer with respect to the Union's wage proposal. At some point, according to Pemberton, White apolo- gized for what had occurred on 15 September and stated that if he had known that permission to use the room had not been obtained he would have dismissed the meeting. White indicated that if Pemberton had ap- proached him in a less hostile manner he would have ended the meeting, but Pemberton's actions in front of the members had placed White in a difficult position. White then asked Pemberton to reconsider the actions taken by management over the events of 15 and 16 Sep- tember and Pemberton responded that the decisions made because of those events were decisions by the board, he could not overrule them but he would relay any proposal that White wanted to make about the matter to the board. The union representatives then cau- cused and when they returned White offered to put in writing his apology about the events of 15 September and he asked when the next meeting could be held. Ini- tially, according to Pemberton, Adams proposed 24 Sep- tember for the next meeting , but that date was rejected by both Pemberton and White . ' s Adams then proposed 27 September, which White, after checking a black ap- pointment book, rejected. 19 Adams then asked whether 29 September was an acceptable date and, at that point, Quitcon whispered something to Adams . According to Pemberton, he heard the word "strike" mentioned by Quitcon but he did not hear the rest of the conversation. White then said that the Union had given the 10-day strike notice and they were free to strike at the expira- tion of the 10 days within a 72-hour period. White also said that if the Union did not strike in the 72 hours it would be necessary to give a new notice but that would not pose a problem. Both parties agreed to meet on 29 September. Pemberton denied that either White or any other union representative stated when the strike would 16 The parties entered into a stipulation with respect to the names on the list prepared by Charles. 1E Although counsel for the Center signed this stipulation , he did so subject to his objection about the introduction of any testimony or evi- dence pertaining to the termination of the 11 employees in mid -Septem- ber 1982. 17 In a telegram sent by White to Pemberton , on 5 October 1982, he stated that the reinstatement of the discharged employees "would open the way to negotiate all issues ." Union literature issued after the strike started also referred to the discharges as the reason for the strike. is On 24 September, White did write a letter to Pemberton in which he stated that had he been aware that permission to use the room had not been secured he would not have continued the meeting , and he requested Pemberton to reinstate the "discharged employees because such an action would be a great step toward coming to an understanding between the administration and the Union." 19 Pemberton, subsequently, testified that the discussion about possible dates occurred among the union representatives, and the Center 's repre- sentatives were not party to those discussions . He also stated that he did not object to any date. 1140 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD plication of the "Jencks" rule. Rather, I view it as an effort to fully comply with that rule. The Center also claims that it was denied due process because counsel for the General Counsel in the 8(g) case did not object to evidence that was offered by the coun- sel in the 8(a)(3) case to establish that the Center had re- ceived constructive notice of when the strike would commence. In view of the fact that the counsel in the 8(g) case took the position that constructive notice as a matter of law would be insufficient , the Center contends that he should have objected to the introduction of fac- tual evidence that was related to this constructive notice theory. However, the Center was aware that this proce- dure would be followed in order to allow the evidence in both cases to be presented. Counsel for the Center also claims that counsel in the 8(g) case did not fulfill his obligation as a counsel because he did not rebut "the af- firmative defense that the strike on September 29, 1982 was an unfair labor practice strike." The complaint in the 8(a)(3) case alleged that the strike that commenced on 29 September was an unfair labor practice strike. The Center was aware that counsel in the 8 (a)(3) case would seek to prove this allegation as part of her case and was also aware that it would need to defend against this alle- gation. Counsel for the Center was afforded the opportu- nity to cross-examine witnesses who testified with re- spect to this element and for many weeks he did engage in lengthy cross-examinations of those witnesses. The Center also was provided with the opportunity to call witnesses to rebut the assertion that the strike was an unfair labor practice strike, but it chose not to do so. It cannot now claim that it was denied due process when it failed to avail itself of the opportunity afforded to it. Barrus Construction Co., supra. It may well be, as the Center contends, that if only the 8(g) case existed and the Union established an affirmative defense to that case, counsel for the General Counsel would have sought to rebut that defense. However, that was not the situation that existed and the Regional Di- rector, faced with a conflict on an essential issue in two cases, decided to provide both parties with the opportu- nity to be heard, to produce witnesses or documentary evidence, and to argue their respective positions. It would have been unfair to both Charging Parties for the Regional Director to have followed any course other than the one he did. In fact, had the Regional Director decided the credibility issue against the Center and re- fused to issue the 8(g) complaint, the Center would have objected to that action. The Center cited Morrissey v. Brewer, 408 U.S. 471 (1972), in support of its argument that it was denied due process. The Morrissey case in- volved a parole revocation issue, the deprivation of a right for an individual to be free. This obviously is not the situation present in the instant case. However, even in the Morrissey case where the issue of the right to due process was posed in a criminal as opposed to a civil context, the Supreme Court stated that due process is flexible and calls for such procedural protection as the situation warranted. In the instant case, the situation re- quired the Regional Director to give the parties their day in court, which he did. The fact that the Center de- clined to use the opportunity afforded to it to explain its actions does not mean that the Center was denied due process. In Confectionery Workers v. McElroy, 367 U.S. 886, 895 (1961), the Court stated that due process, unlike some other legal rules, is not a technical concept with a fixed content unrelated to the time, place, and circum- stances of the event. Due process is concerned with sub- stance and not with form. In the instant case, the Center was provided with the opportunity to present the sub- stance of their position but they argued that form, who should present the substance of their position, was the important issue. The Center contended that it was the counsel for the General Counsel in the 8 (g) case who should have advanced their argument and when he failed to do so they were denied due process . That argument might have some appeal if the counsel for the General Counsel was the only entity who could have presented the Center's position and if the Center had been denied the opportunity to present its position. That was not the situation in the instant case. Rather, the Center consist- ently was urged to present all the evidence it had to present. The Center either had no additional evidence to present or it made a calculated determination not to present additional evidence. The Center also contends that counsel for the General Counsel in the 8(g) case abandoned his prosecutorial duties and it had to assume that role and , therefore, it was entitled to all the material secured during the inves- tigation of the case. Both counsel for the Union and the Center were given affidavits of all witnesses who testi- fied and the requests of both counsel were denied when they sought material contained in either file which was not disclosed at the hearing. In refusing the requests of counsel for both parties, the Regional Director followed the Board's consistent policy, which policy has been honored by the Courts, to protect confidential material contained in files that is not introduced at a hearing NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214 (1978); Wellman Industries v. NLRB, 490 F.2d 427 (4th Cir. 1974). The Center has cited several additional cases in sup- port of its position that it was denied due process. How- ever, an examination of those cases does not establish that the Center was denied due process . In Morgan v. U.S., 304 U.S. 1 (1938), the Court stated that the appel- lants were entitled to a full and fair hearing with the right to have a reasonable opportunity to know the claims advanced against them. In the instant case, the Center was represented by two competent attorneys who participated fully in the hearing which continued for sev- eral months. The Center was aware for some months before the hearing started of the allegations contained in both complaints and was on notice of the limited roles that both counsels representing the General Counsel would take during the hearing. There was no element of surprise in the actions of counsel for the General Coun- sel at the hearing. In Mathews v. Eldridge, 424 U.S. 319 (1976), the Court stated that a party had the right to be heard at a meaningful time and in a meaningful manner. It is evident in the instant case that the Center was given the right to be heard for several months at a hearing where its counsels participated in lengthy cross-examina- COUNCIL'S CENTER FOR PROBLEMS OF LIVING 1141 tions and detailed arguments. The real thrust of the Cen- ter's argument that it was denied due process arises from its view that counsel for the General Counsel in the 8(g) case should have defended the Center against the allega- tion that the strike, which began on 29 September was caused by the Center's unfair labor practices when it dis- charged the 11 employees on 20 September . It should be noted, however, that had the 8(a)(3) case been tried sepa- rately, as counsel for the Center advocates, then it would have been solely his burden to defend against the alleged 8(aX3) charges. In the unusual circumstances of these cases, it was not an unfair burden or a denial of due process to require both Charging Parties to defend them- selves against alleged violations of the Act , which both would have needed to do if the cases had not required consolidation. The Center argues that its private interests have been affected by these proceedings and that it is a matter of record that if it was required to pay backpay it would render the Center bankrupt and thereby terminate the mental health services available to residents in the com- munity. However, there is no evidence in this record to support the conclusion that a decision , which was con- trary to the interests of the Center would cause either bankruptcy or the termination of the services provided by the Center. This institution provides services that are backed by various governmental agencies and what these agencies would decide to do in the event that the Center was required to pay backpay is an unknown factor. B. The Effect of the Settlement Agreement The Center argues that efforts by the counsel for the General Counsel to go behind the terms of the settlement agreement in order to establish that the discharge of the 11 employees on 20 September was an unfair labor prac- tice constitutes both a denial of due process and a viola- tion of the terms of the agreement . The Center concedes that the settlement agreement contains a reservation of rights clause but it maintains that that clause was inserted to protect the 8(aX3) charge in the instant case and was not intended to permit litigation of the very cases that were being settled. The Center also claims that there is no basis to set aside the agreement because the agree- ment has not been breached and the instant case cannot be used to establish that there was postsettlement breach because the instant case was filed some several weeks before the settlement agreement was signed. Counsel for the General Counsel and for the Union maintain that the existence of the reservation-of-rights clause in the agree- ment and the action of the Center's representatives estab- lishe that it was the understanding of all parties that the issue of the legality of those 11 discharged employees was reserved for litigation in the present proceeding. Both also contend that the Center waived the settlement agreement as a bar to litigating the original unfair labor practices by joining issue in the answer filed by it and by participating in the hearing on the merits. Both also argue that, notwithstanding the settlement agreement, the Union is entitled to litigate the legality of the 11 dis- charged employees because the Union has asserted as an affirmative defense that the strike was an unfair labor practice counsel for the General Counsel requests that if the administrative law judge is of the opinion that she cannot make a finding with respect to the discharge of the 11 employees because of the existence of the settle- ment agreement, then counsel requests the administrative law judge to set aside the agreement. The record discloses that the charge in the present 8(aX3) case was filed on 21 April 1983 and the settlement agreement in the prior cases was signed by the Center on 12 May 1983 and approved by the Regional Director on 1 June 1983. The Regional Director had not revoked his approval of the settlement agreement prior to the hear- ing in the instant case . However, as noted, counsel for the General Counsel did request the administrative law judge to revoke the settlement agreement if she deemed it necessary to decide certain issues in this case . A settle- ment agreement will not be set aside unless a respondent fails to comply with the terms of the agreement , commits unfair labor practices subsequent to the signing of the settlement agreement, or has committed presettlement misconduct of which the Regional Director was unaware through no fault of his own at the time he approved the agreement. In the instant case, there is no evidence that the Center failed to comply with the terms of the agree- ment. The Center offered the 11 discharged employees reinstatement, paid a substantial sum of money in back- pay, and posted the required notice . Nor does it appear that the Center committed unfair labor practices subse- quent to the signing of the settlement agreement . The in- stant charge was filed several weeks prior to the signing of the settlement agreement. In Electronics Equipment Co., 94 NLRB 62 (1951), the Board held that a settle- ment agreement could not be set aside on the ground that the employer had committed subsequent unfair labor practices when the settlement agreement was signed on the same day that a new unfair labor practice charge was filed. In the present situation, the charge was filed sever- al weeks before the settlement was signed and, therefore, the Center's actions cannot be considered postsettlement conduct, which would require revocation of the settle- ment agreement." Further, there is no evidence that the Center engaged in presettlement misconduct of which the Regional Director was unaware at the time he ap- proved the settlement agreement. In these circumstances, I do not find a basis to set aside the settlement agree- ment. It is well established that a settlement agreement dis- poses of all issues involving presettlement conduct of a charged party, unless the prior violations were unknown to the General Counsel, not readily discoverable by in- vestigation, or specifically reserved by the mutual under- standing of the parties. Universal Blanchers, 275 NLRB 218 (1985); ES.L Meats, Inc., 270 NLRB 1430 (1984); 44 Counsel for the General Counsel cited Livernois Moving & Storage, 269 NLRB 299, 306 (1984), and Fun's Cafeterias, 251 NLRB 879 fn. 3 (1980), in support of her position that the agreement should be set aside. However, in both cases the employer's conduct, in fact, occurred after the settlement agreement had been signed. This is not the present situa- tion. Moreover, in Tompkins Motor Lines, 142 NLRB 1, 3 (1963), the Board stated, "nere is no contention or evidence that the Respondent engaged in any improper activity subsequent to entering the settlement agreement other than the very matter which was reserved at the time of the signing " This is the situation in this case. 1142 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Cambridge Taxi Co., 260 NLRB 931 (1982); Steves Sash & Door Co., 164 NLRB 468, 473 (1967); Laminate Plas- tics Mfg. Corp., 238 NLRB 1234 (1978). In the instant case, there are two clauses that relate to the issue of reservation of rights . The first clause states specifically that the signing of the agreement shall not preclude the introduction by any party of any evidence contained in Cases 2-CA-19140 and 2-CA-19132 in any forum or proceeding. The second clause states that the agreement settles only the unfair labor practice charge in Cases 2-CA-19140 and 2-CA-19132 and does not settle any other cases that were pending before the Regional Office, the Office of Appeals, the office of the General Counsel, or the Board, nor does it constitute a waiver of any claim that a party may have. It is the position of the counsel for the General Counsel that these clauses "clearly reserved to the General Counsel the right to liti- gate and seek a finding with respect to the underlying unfair labor practices." Counsel maintains that it would be meaningless and illusory to include such a reservation- of-rights clause for the sole purpose of allowing presett- lenient conduct to be introduced as background evi- dence, this counsel can do without a reservation-of-rights clause. In support of her position, counsel cites Tompkins Motor Lines, supra. In Tompkins, the Board found that despite the absence of a written reservation-of-rights clause the parties had agreed that the settlement agree- ment, which normally settles all presettlement conduct, would not bar a new charge from being filed by the charging party about presettlement conduct. The Board further stated that the "Trial Examiner properly held that it was proper to consider evidence predating the set- tlement agreement in this case to establish the employer's motive." The Board did not state that it would allow the introduction of evidence concerning the presettlement conduct as a basis for finding that the conduct settled by the agreement was a violation of the Act. In fact, in footnote 8, the Board stated that it would not make a finding of unfair labor practices based on the conduct that had been settled. In Metropolitan Alloys Corp., 233 NLRB 966 (1977), in which there was a reservation-of- rights clause, the Board stated, "Obviously the settlement agreement permits the General Counsel, in this proceed- ing, to introduce evidence concerning the matters dis- posed of by thesettlement agreement , but the use of such evidence is limited to that of shedding light on the issues raised by the amended complaint. No unfair labor prac- tice findings can be made with respect to the allegations which have been disposed of in the settlement agree- ment." The Board did not adopt the administrative law judge's findings of independent violations. In Superior Sanitation, 234 NLRB 454, 467 (1978), in which there also was a reservation-of-rights clause, the administrative law judge found that he could not make findings of unfair labor practices with respect to the violations that had been settled, and his conclusions were affirmed by the Board. The General Counsel argues that the Center, however, has waived its right to contend that the settlement agree- ment bars a finding about the settled cases because of its actions in this proceeding. The record reveals that the that the discharge of the 11 employees did not constitute an unfair labor practice because the conduct of those em- ployees was unprotected by the Act. The answer also admitted that the settlement agreement had been execut- ed by the Center and it further stated that the agreement "in its entirety speaks for itself." In addition, during his opening statement counsel for the Center gave a detailed presentation of the events of the 15 and 16 September, during which he contended that the employees had en- gaged in work stoppages on those days and he discussed whether the discharge of the 11 employees was an unfair labor practice and what the impact would be on the Union's obligation under Section 8(g) of the Act, if those discharges were found to be violative of the Act.45 It does appear that the Center, notwithstanding the settle- ment agreement, was prepared to and did litigate, in this proceeding the issue of the status of the 11 employees. However, assuming that by that action, the Center did not waive any rights that it might have by virtue of the settlement agreement, the Center does concede that the reservation language in the settlement agreement permits the General Counsel to litigate the complaint allegations regarding the 34 strikers who were discharged on 15 April 1983. The decision whether the Center violated the Act when it discharged those 34 employees depends on whether those employees were engaged in an unfair labor practice strike, as the Union contends, or unpro- tected activity, as the Center contends. Thus, it appears that when the Center executed the settlement agreement it understood that the General Counsel reserved the right to establish the nature of the strike engaged in by the 34 strikers on and after 29 September and understand also that the General Counsel would seek a finding con- cerning the nature of that strike. Further, it should be noted that the Union alleged, as an affirmative defense against the 8(g) complaint, that the strike was an unfair labor practice strike, and, therefore, that the Union was not required to give the notices nor- mally required by Section 8(g) of the Act. The basis of the Union's assertion that the strike was an unfair labor practice strike is its claim that the employees who struck on 29 September did so because the 11 employees were discharged on 20 September in violation of the Act. In Hotel & Restaurant Employees Local 274 (Warwick Cater- ers), 269 NLRB 482 (1984), the issue was whether a union charged with a violation of Section 8(b)(7)(C) of the Act should be permitted to interpose as a defense to that complaint an allegation concerning an alleged 8(a)(5) charge that had been dismissed by the Regional Director and which dismissal had been upheld by the General Counsel. The Board in concluding that the Union was entitled to put in its defense stated , "'We ac- knowledge that under Section 10(b),' `The person so complained of shall have the right to file an answer to the original or amended complaint and to appear in person or otherwise and to give testimony....' `Absent any limitation on these rights, the Board is bound to hear, receive, and consider the Respondent's answer at a trial-like hearing."' and a subsequent case, Mine Workers Center in its answer, as an affirmative defense, stated 45 Tr. 189-199 COUNCIL'S CENTER FOR PROBLEMS OF LIVING 1143 Local 1329 (Alpine Construction), 276 NLRB 415 (1985), involved violations of Section 8(b)(7XC) of the Act. However, the language used by the Board in Warwick was broad in scope and did not indicate that a respond- ent's right to file an answer and to be heard with respect to defenses raised by the answer was limited to 8(b)(7)(C) situations. In sum, I find that I am obligated, in order to resolve the issues in the 8 (a)(3) case, to decide whether the 34 employees were engaged in pro- tected or unprotected activity when they struck. C. The Reason for the Strike It is undisputed that representatives of the Center were not present during the union meetings when the employ- ees discussed the strike issue. Nevertheless, it is the posi- tion of counsel for the General Counsel that the employ- ees struck for economic considerations and did not strike to protest the discharge of the 11 employees . In support of this position, counsel makes the several points. Months before the discharges, the employees had expressed con- cern over the Center's failure to sign a prior contract and about their belief that the Center had cheated them out of money. It was these topics and other economic issues that were of paramount interest to the employees and not the discharges . Although counsel concedes that there was some discussion about the discharges , he main- tains that the union representatives did not push the issue when the Center stated that the discharges were not a proper subject for discussion at the negotiation meeting. Further, counsel argues that the fact that the employees did not strike when the discharges occurred also estab- lishes that the discharges were not the cause for the strike. The record reveals that the employees had been con- cerned for months before 29 September about the Cen- ter's failure to sign the earlier contract and its alleged failure to pay money that the employees believed were owed to them by the Center. Notwithstanding their un- happiness over these issues for several months , the em- ployees did not strike or even vote to strike. It was in early September when the employees finally decided that some action was warranted, but even then the employees voted only to hold a series of demonstrations they did not vote to strike. Although that vote was in early Sep- tember, the employees did not hold any demonstrations between early September and 16 September when the first negotiation meeting was held. At this first session, the Union presented its proposals , there was some discus- sion about the proposals and the parties agreed to meet again. The Center did not offer any proposals at that meeting, but in negotiations that is not an unusual situa- tion and there is no evidence that the union negotiators considered this failure to offer counterproposals as evi- dence of a failure to bargain by the Center. At the second meeting on 22 September, there was further dis- cussion about the Union's proposals, and Pemberton agreed to the concept of a daycare center , agreed to consider hiring members sent by the Union and made a counterproposal on wages. Although the Center did not make counterproposals, there was some evidence of movement by the Center on proposals made by the Union. The parties were in disagreement about which side proposed 29 September as the next day for negotia- tions. However, there is no dispute that the parties did agree to meet for negotiations on that day. As noted, there was another situation that was unfold- ing as the parties met to negotiate. This situation in- volved the attendance of employees at the union meeting on 15 September, the receipt by the employees of warn- ing letters because of Pemberton's belief that the employ- ees had engaged in a work stoppage on 15 September, and the discharge of the 11 employees, first on 17 Sep- tember and then on 20 September, because of Pember- ton's belief that these employees had engaged in a second work stoppage on 16 September. There is no dispute that the Union and the employees were angered by the warn- ing letters and the discharge of the 11 employees and they attempted to raise both topics at the negotiation meeting. It is true that when Pemberton said that the dis- charges were not a proper subject matter for discussion, the union representatives did not attempt to force the issue. It is possible that had the Union attempted to do so, the Center would have filed a ' refusal-to-bargain charge. However, it is inaccurate to say that the Union and employees abandoned the matter. To the contrary, White forwarded a letter to Pemberton on 24 September in which he stated that the reinstatement of the 11 dis- charged employees "would be a giant step towards coming to an understanding between the administration and the Union."46 The record reveals that on the day the 11 employees were discharged a union meeting was called immediately to discuss the discharges . At this meeting, the employees expressed their anger at the dis- charge of the 11 employees and for the first time they voted to strike. The employees voted to strike unless the 11 employees were reinstated. The evidence further re- veals that throughout the week that followed the issue of the discharges was the prime topic at all the union meet- ings. The Center contended that if the discharges were the cause for the strike then the employees would have struck on 20 September, it ignores the fact that the union representatives and the employees were of the belief that they could not strike before the date set in the strike notice, which was 28 September. The testimony by White and the employees establishes that during the ne- gotiation meeting on 22 September White stated that if the issues that existed between the parties were not set- tled there would be a strike. One of those issues, as evi- denced by White's letter and the testimony of the em- ployees, was the discharge of the I1 employees. Based on the evidence in this record and my observation of the employees, I am convinced that the discharge of the 11 employees was the main, if not the only, reason for the strike. 49 As noted, in his telegram of 5 October 1982, White reiterated that reinstatement of the discharged employees would help resolve the issues between the parties. 1144 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD D. Whether the Issuance of the Disciplinary Letters and the Discharge of the 11 Employees Were Unfair Labor Practices The Center's representatives did not testify as to why the disciplinary letters were issued on 16 September or why the employees were discharged on 20 September. However, in the warning letters that were issued to the employees, Pemberton stated that the employees were being disciplined because they had engaged in an illegal work stoppage and had ignored management's request to return to work. The letters do not disclose when Pem- berton believed that the work stoppage had occurred nor does it state the basis on which Pemberton concluded that the employees had engaged in a work stoppage, and witnesses were not called to clarify either point.47 How- ever, the record does disclose that some employees at- tended a meeting between 2 and 3 p.m. on 15 September and that Pemberton told employees who were at the meeting to return to work. Gordon, Buchinji, Harris, and de la Torre credibly testified that between 2 and 3 p.m. employees, on a rotating basis, attended a union meeting, as they had several times before in room 153 at the pe- mises of the Center. The Center did not dispute that em- ployees had held union meetings at the premises before this meeting on 15 September.48 However, counsel for the Center did state that one of the reasons the Center issued the disciplinary letters was due to the unauthor- ized use of the room by the employees. No evidence was offered to support the claim that the use of the room was unauthorized. In fact, Irma Quitcon testified, without contradiction, that she followed the practice established by Sitgraves; she checked to see if the rooom was avail- able and she found that the room was not being used for any other purpose and, therefore, it could be used for the union meeting. Sitgraves testified and she did not refute that testimony. The Center did not establish that an investigation had been conducted by its representative on either 15 or 16 September, before the disciplinary letters were issued, and that as a result of that investigation it had discovered that the employees had failed to perform their work. Notwithstanding this fact, counsel for the Center at- tempted, during cross-examination, to prove that the em- ployees had neglected their duties in order to be present at the meeting.49 Initially, he attempted to establish that the employees had taken their lunch period before 2 p.m. and, therefore, they were on worktime when they at- tended the meeting. Gordon, Buchinji, Harris, and de la Torre all denied that they had taken their regular lunch period before 2 p.m. Based on my observation of the wit- nesses, I credit those denials.50 Subsequently, counsel at- 47 The letters do not state, specifically, that the employees were being disciplined because they had failed to perform their duties 48 Counsel for the Center indicated that the meetings usually were held at noon or after 5 p in 4e Counsel indicated that the employees were engaged in a demonstra- tion rather than a meeting but he failed to offer evidence to support that assertion 50 Although Gordon initially testified she took her lunch between 2 and 3 p.m and then admitted that she had sent a notice to Pemberton in which she stated that she had taken lunch between 1:30 and 3 p m., I do not consider that this difference is sufficient to warrant the conclusion that her overall testimony was not credible tempted to show that the employees failed to keep scheduled appointments between 2 and 3 p.m. Gordon and Harris credibly testified that they did not have ap- pointments scheduled for the afternoon of 15 September. Buchinji testified that she checked several times during that afternoon to ascertain whether a client who was scheduled for a 3 p.m. appointment had arrived and she found that the client had not come to the Center. The Center did not offer evidence to refute that testimony. De la Torre conceded that she did not see a client who she had scheduled for a 2:30 p.m. appointment and who had signed the client logbook on that afternoon. The record does not disclose the reason de la Torre did not see the client. The record does disclose that at times cli- ents have signed the logbook but for some reason or an- other they have failed to keep a scheduled appointment. De la Torre also testified that after the meeting she re- turned to her office where she picked up records and re- turned them to the medical records division. Her testi- mony that she saw and spoke to Pemberton and Charles while at work at 3:30 p.m. was also not refuted. The Center did not produce any employee's supervisor to es- tablish that an employee failed to perform duties that they had scheduled between 2 and 3 p.m. or thereafter. Nor did the Center produce a client to testify that any employee failed to keep a scheduled appointment. The Center did produce service rendered documents (SRD), which are the records maintained by employees to estab- lish the work they performed and logbooks signed by cli- ents when they come to the Center to support its conten- tion that the employees had failed to keep scheduled ap- pointments. As noted, the SRD for Gordon was rejected because of unexplained defects on the face of the docu- ment. The Center did not produce a SRD for Buchinjist or Harris for 15 September and, apparently, the SRD for other employees also were missing. These documents were within the control of the Center and the Center failed to offer an explanation why some SRD were miss- ing or why the SRD for Gordon contained erasures, cross-outs, etc. De la Torre testified that on occasion when clients arrived at the Center they told the recep- tionist that they were to meet with de la Torre, al- though, in fact, they were not her patients or were not scheduled to see her. This type of situation arose because she acted as a translator for other therapists or doctors and the clients knew this. Further, other witnesses testi- fied that clients sometimes came to see a therapist, al- though they did not have appointments. Thus, the log- books would not always reflect whether a patient who signed the book actually was scheduled to see a thera- pist. In these circumstances, I do not consider either the SRDs or the logbooks as sufficiently reliable evidence to prove that employees failed to perform their duties be- tween 2 and 3 p.m. on 15 September. Moreover, as noted, the Center failed to establish that it had examined any records prior to the time it issued warning letters to 5 l Buchinji could not recall if she had completed an SRD for that day COUNCIL'S CENTER FOR PROBLEMS OF LIVING 1145 ascertain whether employees had failed to perform their duties.52 The Center's representatives did not explain which particular situation on 15 September they considered to be the work stoppage. Counsel for the Center did state that employees did not work between 2 and 5 p.m. on 15 September. Based on my evaluation of the evidence in this record, I find that between 2 and 3 p.m. some em- ployees attended a union meeting on their own time, as they had done on other occasions.53 The evidence also reveals that the employees met with union representa- tives during that meeting to assist those representatives in their preparations for the upcoming negotiations. There is no evidence in this record to establish that the employees failed to perform their duties because of their attendance at the meeting or that the meeting disrupted the operations of the Center or interfered with patient care. It should be noted that due to the nature of their work these employees had great flexibility with respect to their lunch and break periods and with respect to ar- ranging their schedules. The Act protects the right of employees to form, join, or assist a labor organization and it is a violation of the Act to interfere with, restrain, or coerce an employee in the exercise of those rights or to discriminate against em- ployees in order to encourage or discourage union mem- bership. The Supreme Court has stated that Section 7 is not to be interpreted and applied in a limited fashion. Eastex, Inc. v. NLRB, 437 U.S. 556 (1978); NLRB v. J. Weingarten, 420 U.S. 251 (1975); NLRB v. Washington Aluminum Co., 370 U.S. 9, 14 (1962). In the instant case, I fmd that when the employees attended the meeting to assist the union representatives they were engaged in protected concerted activities and were not engaged in a work stoppage. Nor do I consider that the employees lost the protection of the Act because of events that hap- pened after 3 p.m. It is conceded that some employeesa4 went to the second floor to see Pemberton about the timecards, which he had removed from the rack while the employees attended the union meeting . I fmd that the confusion that occurred thereafter was attributable to Pemberton's action in removing the timecards and his adamant refusal to speak to the employees about the matter. It could be argued that when he pulled the cards Pemberton, in effect, discharged the employees . In these circumstances, it would be difficult to conclude that the 62 The Board has considered the failure by an employer "to conduct an investigation of an employee's alleged misconduct is evidence of dis- criminatory intent, especially when viewed in light of the employer's union hosility " Beverly Enterprises, 272 NLRB 83, 90 (1984). as If this was the only time employees had attended a union meeting on the premises of the Center , Pemberton might have had some basis to believe this to be a work stoppage. As noted, however, this was not the first meeting Moreover, Pemberton's good-faith belief would not be a defense if the employees, in fact, were engaged in protected concerted activities. NLRB v. Burnup & Sims Inc., 379 U.S. 25 (1964). 54 There is no evidence to establish whether the Center's representa- tives knew which employees came to the second floor. Harris, for exam- ple, claimed that she never came to the second floor . De la Torre testi- fied that she came to the second floor after she heard about the timecards but she remained only for a few minutes. employees had engaged in a work stoppage.a s Although, it is true that these employees were health care workers, that fact does not mean that they lose the right to engage in protected concerted activity. Phase, Inc., 263 NLRB 1168, 1169 (1982). In the letter of termination that was issued first on 17 September and then 20 September, Pemberton stated the following, "After your receipt of a warning letter, you were specifically instructed to return to your work sta- tion. This you refused to do. Indeed the substantial time which elapsed until you reported to your work station, leads to the determination that you again participated in a work stoppage; that of am. of September 16, 1982." In addition to that statement about the reason for the dis- charges, the Center stipulated that the employees were discharged "in part based upon the warnings which were previously issued to these employees on September 16, 1982." The Center did not call witnesses or produce doc- uments to explain what it considered to be the second work stoppage. Nor did it produce evidence to establish that an investigation had been conducted between 16 and 17 September to ascertain the facts about this alleged work stoppage. The record does establish that on the morning of 16 September the Center's representatives prohibited employees from performing their duties in order to distribute to them the disciplinary letters. There is no evidence about how the work of these employees was performed or if it was performed during this period of time. In fact, some employees were kept from per- forming their duties for a much longer period of time than the hour they had spent at the union meeting. It is undisputed that employees were instructed to return to their work after they received their letter. According to the credited testimony of the employees, they did return to work. Gordon returned to the nursery, put toys away, and helped Rose Ann Harris to put children on the schoolbus. At this point, some employees came to the first floor and started to draft a letter to Pemberton re- questing that the issue of the disciplinary letters be put on the agenda for contract negotiations . Gordon joined them for a few minutes and then she returned to work in the nursery for the remainder of the day. De la Torre did not receive her disciplinary letter until about noon. De la Torre had lunch at some point before 1 p.m. and, thereafter, she joined the group of employees who were drafting a letter to Pemberton, she remained with this group about 50 minutes and then returned to work. Bu- chinji received her letter also about noon , and went to the first floor. She observed employees drafting the letter to Pemberton and she stayed with the group about 20 minutes and then returned to work. Harris received her disciplinary letter between 11:30 and 11 :45 am., and after she received it she went to the nursery and helped to put children on the schoolbus. She noticed the em- ployees drafting the letter and she joined them for a few minutes and then returned to work. Counsel for the Center stated that the employees were not discharged for writing the letter because the Center's representatives did sa In fact, it would have been impossible for employees to keep any appointment after the Center's representatives closed the doors to the Center. 1146 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD not know about it, they were discharged for not per- forming their work sometime on 16 September . Howev- er, counsel did not state what time of day the employees failed to perform their duties or what duties they failed to perform. Nor does the evidence disclose why the Center decided to discharge the 11 employees who were discharged. In sum, the Center has failed to establish any reason for the discharge of the employees other than its stipulated reason, i.e., because the employees attended the union meeting. In view of my finding that the em- ployees were engaged in protected concerted activities at the time they attended the meeting , I find that the Center committed an unfair labor practice when it issued the disciplinary letters and discharged the 11 employees. Brodart, Inc., 257 NLRB 380, 384 (1981); Empire Steel Mfg. Co., 234 NLRB 530, 531 (1978). E. Whether the Union Was Required to Give Notice Counsel for the General Counsel in the 8(a)(3) case and counsel for the Union contend that the employees struck to protest the Center's unfair labor practices and, therefore, the strike was an unfair labor practice strike. In these circumstances, they contend, that under the doc- trine of Mastro Plastics v. NLRB, 350 U.S. 270 (1956), the Union was not required to give any notice. Moreover, both also argue that the Center's conduct during the 10- day period excused the failure, if there was a failure, by the Union to notify the Center about the delay in the start of the strike. Counsel for the General Counsel in the 8(g) case agrees that the notice requirement of 8(g) does not apply to a strike that is called to protest an em- ployer's unfair labor practices. However, he maintains that in the instant case, the strike was an economic strike. The Center did not state specifically that the strike was an economic strike but it did claim that the union was required to give the 8(g) notices timely, which it failed to do. It further claims that the doctrine of Mastro Plastics was not applicable to the instant situation because in Mastro Plastics the Supreme Court dealt with a strike that occurred prior to the expiration of the 60- day "cooling-off period" mandated by Section 8(d) and prior to the expiration of the contractual no-strike period. Therefore, counsel argues, it has no application to a strike commenced after the time specified in the 10- day notice. Rather, counsel claims, the legislative history limits the application of Mastro Plastics to two situations, the Union may choose not to give a 10-day notice or if it gives such a notice it is not required to wait until the ex- piration of the 10-day notice before it strikes. A strike caused by unfair labor practices is an unfair labor practice strike even if it also has economic objec- tives. NLRB v. Louisville Chair Co., 385 F.2d 922, 929 (6th Cir. 1967), cert. denied 390 U.S. 1013 (1968). The unfair labor practice need not be the sole cause of the strike, it is enough if it is one of the reasons for the strike. Crown Cork de Puerto Rico, 273 NLRB 243 (1984); Boyles Galvanizing Co., 239 NLRB 530 (1978); C & E Stores, 221 NLRB 1321 (1976). As noted, the various work-related issues that had concerned the employees for months had not caused them to strike or to even hold the demonstrations they had discussed. There is no evi- dence that at the union meeting on 15 September the em- ployees discussed the possibility of a strike. However, when the Center issued the disciplinary letters and dis- charged the employees it did provoke the other employ- ees to action. The undisputed and credited testimony of the employees establishes that it was these events that triggered the employees to vote for a strike unless the discharged employees were reinstated. Pemberton did not dispute White's claim that he raised the issue of the disciplinary letters and the discharges at the negotiation meetings. Nor did he dispute the assertion that he re- fused to discuss these issues. White's letter of 24 Septem- ber makes clear that the Union and the employees were concerned about the employees who had been dis- charged. In fact, White told Pemberton that a resolution of that problem would go a long way to resolving the other differences between the parties. These outward ex- pressions of concern by the Union and the employees about the discharged employees occurred several days before the strike commenced and were not afterthoughts to protect the employees who went on strike on 29 Sep- tember. In these circumstances, I find that the strike that commenced on 29 September was caused, at least in part, by the unfair labor practices of the Center. I further find that the strike was prolonged by those unfair labor prac- tices at least until the Center remedied those unfair labor practices. 56 In Waiters & Bartenders Local 500 (Mission Valley Inn), 140 NLRB 433, 438 (1963), a union claimed that it was picketing to protest unfair labor practices, al- though the case had been settled by an agreement to which the Union was not a party. The Board stated: The fact remains that under established and regular administrative procedures, any unfair labor practices embraced in the charges must be deemed to have been remedied.. . . For the Board to accord recog- nition to a continued protest against unfair labor practices thereafter would be inconsistent with its obligation to respect established administrative prac- tice and would impinge on the statutory authority of the General Counsel. Both counsels for the General Counsel agree that the legislative history of the health care amendments and the limited Board law in this area establish that under the doctrine stated in Mastro Plastics Corp., 350 U.S. 270 (1956), a union is not required to comply with the 10-day notice requirements of Section 8(g) when a strike is caused by an employer's serious unfair labor practices. However, counsel for the Center contends that the Mastro Plastics doctrine, by its very terms, does not apply to the strike in the instant case, which was com- menced after the time specified in the 10-day notice. Counsel also argues that there is no indication in the leg- islative history of health care amendments that Congress intended to apply the Mastro Plastics doctrine to a strike that commenced after the 10-day period.57 Moreover, 68 The settlement agreement was approved on June 1983 , but the pre- cise date when the Center complied with the terms of the agreement is unclear 6T It does not appear that this contention is being advanced by counsel for the General Counsel However, counsel for the General Counsel in the 8(g) case does argue that this was an economic stake and not an unfair labor practice stoke COUNCIL'S CENTER FOR PROBLEMS OF LIVING 1147 counsel maintains that the failure by the Union to take economic action when the alleged unfair labor practices occurred misled the Center and lulled it into a situation in which the Center believed that the Union would strike, at the time specified and it was unprepared for the strike that occurred 24 hours later. Finally, counsel con- tends that the alleged conduct in the instant case does not constitute interference with rights of the employees to select their own bargaining representative, which was the situation that existed in Mastro Plastics, It is clear from the legislative history of the health care amendments that Congress recognized that the prin- ciples of the Mastro Plastics doctrine would apply even in the health care industry, notwithstanding the Congres- sional concern about patient care . Thus, the Senate Report states the following: Likewise, the public interest demands that employ- ees of health care institutions -be accorded the same type of treatment under the law as other employees in our society, and that the notice not be utilized to deprive employees of their statutory rights. It is clear, therefore, that a labor organization will not be required to serve a ten day notice or to wait until the expiration of the ten day notice when the employer has committed unfair labor practices as in Mastro Plastics Corp. v. NLRB, 350 U.S. 270, 37 LRRM 2587 (1956).68 Further evidence that the doctrine would be applica- ble even to the health care industry can be found in these statements by Congressmen Ashbrook and Thomp- son, who cosponsored the bill in the House. They made the following statement: Mr. Ashbrook: I would say to my colleague from Florida that the Supreme Court has clearly enunci- ated a policy which would override the 10-day re- quirement but it is in a very limited situation. Say, for example, that the hospital fired all employees. The Court has said in effect that the unfair labor practice was so aggravated that a nonstrike clause was not enforceable . Only a very narrow, limited number of situations would be covered . I would answer "yes" to his question. Despite the provision for a 10-day notice, in aggravated situations where the notice is meaningless, the union would not have to give this notice. Mr. Thompson of New Jersey: Mr. Chairman, this particular provision was written in because of the nature of the matter and would apply only to an ag- gravated unfair labor practice, as distinguished, in the normal course of events, under section 8(dX3) of the act. If one was, shall we say, fired as in J. P. Stevens case, on the first day of wearing a union button, this gives the protection to the health care worker and is only applicable in that kind of case.59 The issue of the applicability of the Mastro Plastics doctrine to a health care institution has not been before the Board. However, in Cedarcrest, Inc., 246 NLRB 870 (1979), it was contended that the employer was a health care institution. Although the administrative law judge did not find the employer to be such an institution, he did state that if he had made such a finding then he would have concluded that the requirements of Section 8(g) would not be applicable because the employer in that case had committed serious unfair labor practices. The Board affirmed his findings, on this issue, without comment. Thus, based on both the legislative history and limited Board law it appears that the doctrine of Mastro Plastics is applicable even if the employer involved is an institution involved in the health care field. Counsel's argument that Mastro Plastics, by its terms, does not apply to a strike that commenced after the time specified in the 10-day notice is not persuasive. Mastro Plastics, of course, did not deal with the notice require- ments imposed on a union, either before or after the 10- day notice, and, therefore, in that sense it did not address the immediate issue . However, to say that the doctrine is not relevant to this case is to misunderstand the opinion of the Court. The Court in Mastro Plastics was con- cerned that employees who struck to protest an employ- er's unfair labor practice should not lose their status as employees because they failed to give notice in advance to an employer, who by its conduct, had caused the strike in the first place. Thus, the Court in seeking to protect these rights of employees in such circumstances held that, notwithstanding the explicit language of the Section 8(d), employees could strike prior to the expira- tion of the 60-day cooling-off period and prior to the ex- piration of a contractual no-strike period . The Court eliminated entirely the only type of notice required under the facts existing in the Mastro Plastics case. The scope of that holding was broad and demonstrates the Court's belief that an employer who has committed seri- ous unfair labor practices is not entitled to receive ad- vance notice of the strike that was caused by those prac- tices. Congress, when it stated that the doctrine would be applied to employers in the health field who commit- ted serious unfair labor practices, could not have meant that a union would be excused from giving the 10-day notice specifically required by the Act, but would not be excused from giving the 12-hour notice which is not set forth in the Act. Rather, I find that the rationale of Mastro Plastics applies whether the issue is the 10-day notice or the 12-hour notice. Further, I do not find merit to counsel's contention that the only conduct by an employer that will excuse a union from the need to give the required notice is con- duct which interferes with the employees ' right to select their bargaining representative. That the conduct is not the only type of conduct that will eliminate the union's need to give advance notice of its intention to strike is evident from the following comment by Senator Wil- liams. Thus, he stated: 68 S. Rep. No. 766, 93d Cong., 2d Sess , reprinted 120 Cong.Rec. 12935 (1974). 59 120 Cong.Rec. 16901 (1974) Second, it should be clear that the exception to the section 8(g) notice was never intended to be limited to the precise facts found in Mastro Plastics 1148 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Corp. v. NLRB, 350 U.S. 270 (1956). Mastro Plastics involved a strike against an employer within the 8(d) waiting period and in the face of a no-strike clause solely because the employer discharged an employee because of his organizational activities in support of the union. The Court held that neither section 8(d) nor the no-strike provision prohibited employees from engaging in a strike to protest an employer's unfair labor practices.so In the instant case, the issuance of disciplinary letters to the majority of the bargaining unit employees because they attended a union meeting and the discharge of a sig- nificant number of bargaining unit employees, at least in part, because they attended such a meeting constitutes the type of serious unfair labor practice that would re- lieve the Union of any obligation to give advance notice of its intention to strike. Counsel for the General Counsel in the 8(a)(3) case and counsel for the Union also argue that the Center's conduct during the 10-day period after the Union gave notice of its intention to strike, even if it did not rise to the level of an unfair labor practice, nevertheless re- leased the Union from its obligation to give the required notices. In support of this position counsel cites the fol- lowing language from the Senate Report: ... it is the sense of the Committee that during the ten-day notice period the employer should remain free to take whatever action is necessary to main- tain health care, but not to use the ten-day period to undermine the bargaining relationship that would otherwise exist. For example, the employer would not be free to bring in large numbers of supervisory help, nurses, staff and other personnel from other facilities for replacement purposes. It would clearly be free to take extraordinary steps to stock up on ordinary supplies for an unduly extended period. While not necessarily a violation of the Act, viola- tion of these principles would serve to release the labor organization from its obligation not to engage in economic action during the course of the ten-day notice. [S. Rept. 93-766, 93d Cong., 2d sess., Cover- age of Nonprofit Hospitals Under the National Labor Relations Act.] Counsel for the Union claims that the following con- duct demonstrates that the Center undermined the col- lective-bargaining relationship and, therefore, the Union was not required to give any notice. The Center, after it received the 10-day notice, discharged 11 employees for their participation in a union meeting, refused to discuss the issue of the discharges, hired several employees as permanent replacements for the striking employees, moved a major program to another site, subcontracted food services, hired a private security agency, refused to meet with the Federal mediator, and refused to partici- pate in mediation as requested by FMCS. As stated, with respect to the discharge of the 11 em- ployees, I have concluded that that conduct was viola- 80 120 Cong Rec. 22575 (1974) tive of the Act. However, it should be noted that if the conduct had not been found violative of the Act, an em- ployer's refusal to discuss legitimate discharges during negotiations would not necessarily indicate that an em- ployer was attempting to undermine the collective-bar- gaining process. As will be discussed below, I do not consider that the Center hired additional employees, as replacements for the strikers. It is clear that employees were hired because of the anticipated takeover of the op- eration of the Hudson Hotel by the Center and these hir- ings were unrelated to the strike. Further, for reasons hereafter stated, I do not find that the adult day treat- ment program was transferred to the Hudson Hotel be- cause of the strike or that the Center actually made ar- rangements to subcontract food services. The only con- duct that I find the Center actually engaged in that could be considered to have an effect on the collective-bargain- ing process involved Pemberton's refusal to meet with the Federal mediators. Section 8(d)(C) states as follows: The parties shall participate fully and promptly in such meetings as may be undertaken by the Service for the purpose of aiding in a settlement of the dis- pute. Pemberton admitted that he refused to meet with the Federal mediators both because he did not like the par- ticular mediator and/or because he did not believe that the mediation was necessary. However, it does not appear that Pemberton communicated his belief that me- diation was unnecessary to the FMCS. The Act states that the parties shall participate fully and promptly with the FMCS in an effort to resolve a dispute. That lan- guage does not indicate that either party has the discre- tion to decide whether to meet. In these circumstances, I find that Pemberton's refusal to meet with the mediators as required by the Act was conduct calculated to under- mine the collective-bargaining process and, therefore, was conduct that released the Union from any obligation that it had to comply with the notice requirements of Section 8(g). Hospital Employees District 1199 (CHC Corp.), 229 NLRB 1010 (1977). F. Whether the Union Notified the Center of the Delay in the Start of the Strike As stated above, I have concluded that the Union was released from its obligation to give any notice of its in- tention to strike. However, I consider it necessary, in the circumstances of this case , to discuss whether the Union did comply with the notice requirements of Section 8(g). Section 8(g) states: A labor organization before engaging in any strike, picketing, or other concerted refusal to work at any health care institution shall not less than ten days prior to such action, notify the institution in writing and the Federal Mediation and Conciliation Service of that intention. . . . The notice shall state the date and time that such action shall commence. The notice, once given, may be extended by the written agreement of the parties. COUNCIL'S CENTER FOR PROBLEMS OF LIVING 1149 The Board has held that with respect to the 10-day notice the requirement that the notice state the time and date when the strike would commence was a mandatory and not a discretionary requirement . Operating Engineers Local 39 (Kaiser Foundation Hospitals), 268 NLRB 115 (1983), enfd. NLRB v. Operating Engineers Local 39, 746 F.2d 530 (9th Cir. 1984); Hospital & Institutional Workers Local 250 (Affiliated Hospitals of San Francisco), 255 NLRB 502, 504 ( 1981). In Kaiser Foundation Hospitals, the union argued to the Court that the Board had re- laxed its literal interpretation of Section 8(g) and in sup- port of that position the union cited the Board's holding in Greater New Orleans, 240 NLRB 432 (1979). The Court rejected that argument and noted the following distinction between the two cases. Greater New Orleans Artificial, the Court stated, involved the issue of the time- liness of the receipt of the notice, a matter not specifical- ly addressed in the statute. On the other hand, Kaiser Foundation Hospitals involved the issue of whether the contents of the notice were in conformity with the spe- cifics required by the statute. The Court held that in Greater New Orleans Artificial the Board had more flexi- bility in deciding whether the notice was timely, in Kaiser Foundation Hospitals the statute dictated the con- tents of the 10-day notice and the Board is not free to rewrite the second sentence of Section 8(g). Affiliated Hospitals of San Francisco, supra. It is the Union's position that it fully complied with the 10-day notice requirements set out in Section 8(g), the notice was in writing, and it specified the time and date when the strike would commence. The evidence supports that position. However, the Union did not com- mence its strike until 24 hours after the time stated in the notice and the Center contends that it was not notified about this change and the Union, therefore, violated the Act. The issue then is whether the Union was required to notify the Center about the delay in the start of the strike and, if so, whether the notice had to be in writing and had to state the time and date when the strike would start. As counsel for the Union has stated, the Act does not refer to what notice, if any, a union must give when it delays the start of a strike beyond the date contained in the 10-day notice. However, the legislative history does refer to that issue: The 10-day notice is intended to give health care in- stitutions sufficient advance notice of a strike or picketing to permit them to make certain arrange- ments for continuity of patient care. It is not the in- tention of the Committee that a labor organization shall be required to commence a strike or picketing at the precise time specified in the notice; on the other hand, it would be inconsistent with the Com- mittee's intent if a labor organization failed to act within a reasonable time after the time specified in the notice. Thus, it would be unreasonable in the Committee's judgment, if a strike or picketing com- menced more than 72 hours after the time specified in the notice. In addition, since the purpose of the strike is to give a health care institution advance notice of the actual commencement of a strike or picketing, if a labor organization does not strike at the time specified in the notice, at least 12 hours' notice should be given of the actual time for the commencement of the action. 61 The legislative history, therefore, establishes that Con- gress intended to permit a union to postpone unilaterally the start of a strike and to thereafter strike without giving a new 10-day notice provided the union followed certain conditions, i.e., the postponement of the strike could not be more than 72 hours after the time set forth in the initial 10-day notice and the union had to give at least 12 hours' advance notice to the employer of the actual time when the strike would commence. In the in- stant case, there is no dispute that the first provision was met, the Union struck within 24 hours after the time stated in the 10-day strike notice. Although the Union claims that it gave adequate notice to the Center about the delay in the start of the strike, the Center denies that it received any notice or that it was notified as to the actual time when the strike would commence. White, Quitcon, Gordon, Baptiste, and Adams testified that at the negotiation meeting on 22 September, White told the Center's representatives that the employees would walk or strike on 29 September. Counsel for the General Counsel contends that the contradictions in the testimony given by these witnesses establishes that no such notification was given . It is true that these witnesses did not all testify precisely the same about White's state- ments and there was some conflict in their versions about the sequence of events. Nevertheless, I do not find that these contradictions are sufficient to undermine their basic testimony, which was that White said that the em- ployees would walk or strike on 29 September . I credit their testimony not only on my observation of these wit- nesses, but on my evaluation of the actions of the Cen- ter's representatives after that negotiation meeting. On the day following the meeting Pemberton told the board of directors that he did not believe that the strike would start on either Tuesday, 28 September, or Wednesday, 29 September. It is undisputed that until the meeting on 22 September, the only date mentioned for the start of the strike was Tuesday, 28 September. It is significant that it was following the negotiation meeting that Pemberton, for the first time, mentioned Wednesday, 29 September, as a possible date for the strike to commence. The Center's actions with respect to the security guards also supports the Union's position that they told Pemberton about the delay in the start of the strike. An examination of the logbook shows that the Center did not add additional security guards for the early shift, or for any other shift on 28 September but additional guards were added for 29 September. Further, the logbook con- tains the notation that a representative of Health and Hospital Corporation referred to the fact that the strike was to be on 29 September , there is no such statement for any entry on 29 September. In view of the fact that this representative was the liaison between the city and the Center, an inference is warranted that he gained his e1 S. Rep. No. 766, 93d Cong., 2d Sess.; represented 120 Cong.Rec. 12935 (1974). 1150 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD knowledge about when the strike would start from man- agement representatives. The Center, in support of its position that it was never advised of the delay in the start of the strike, points to the extensive preparation it made for the strike to begin on 28 September. An examination of the testimony given by the Center's representatives reveals that the extent of that preparation was limited to a general discussion about what would happen in the event of a strike. Although Pemberton claimed that on 27 September he discussed a strike plan with management representatives in anticipa- tion of the strike on 28 September, both Charles and Payne denied that there was any such discussion. In fact, Payne claimed that the first preparations that were made for the strike occurred after the strike began. I credit that testimony based on my observation of Payne. Fur- thermore, Pemberton's own testimony establishes that he did not make preparations for the strike because he did not think one would occur. Thus, Pemberton told the board of directors on 23 September that he did not think there would be a strike on Tuesday, 28 September, or Wednesday, 29 September, and he refused to meet with the mediators because he did not believe that mediation was necessary. Neither Sigraves nor Terri Reid Payne, who allegedly was directed to make arrangements for ca- tering services to provide food at the Hudson Hotel for 28 September, made such arrangements. It is difficult to accept that these supervisory personnel would have failed to follow through with the instructions given to them by the director of the Center. Perhaps the most sig- nificant act Pemberton alleged he did in anticipation of a strike on 28 September was to transfer the adult treat- ment program from the Center to the Hudson Hotel. I do not credit that claim. According to Pemberton, he gave the responsibility for the transfer of this program, including the medical needs of the clients in the pro- gram, to Ana Perira. However, Perira was not the super- visor of the clinical portion of the program, that was the responsibility of Norma Burgos. Burgos allegedly was ill when Pemberton spoke to Perira about the transfer of the program. However, this record fails to disclose that Pemberton had discussed this alleged transfer with Burgos at any time before 28 September and there is no evidence that he discussed the transfer with members of her staff before that date. It would appear that if Pem- berton, in fact, planned to transfer such a program, he would have made arrangements with Burgos to do so some time before 28 September. There were no such ar- rangements made because Pemberton did not plan to transfer the program, he did not anticipate that there would be a strike. Pemberton may have discussed with Perira how the Center would conduct its operations at the hotel when it assumed management and control of the hotel on 28 September. Perira had been preparing for that eventuality since July and had spent a considerable part of her time at the hotel. I find that Perira and her staff were at the hotel because the Center was to assume control of the hotel on 28 September and they were not at that location because of the strike. I also find that the employees who were hired were hired in anticipation of this takeover of the hotel and not because of the strike. Although, the Center claimed that it was necessary to transfer the adult treatment program on 28 September because of the strike, there is no evidence that that pro- gram was transferred on 29 September when the strike started or was transferred thereafter to the hotel. In sum, I conclude that the Center did not produce convincing evidence that it prepared for the strike to start on 28 September and was lulled into canceling those arrange- ments because the strike did not start on that day. Although I find that White did tell Pemberton that the strike would commence on 29 September,62 the evidence fails to establish that he notified the Center of the actual time when the strike would start. Counsel for the Gener- al Counsel contends that this failure to give the specific time when the strike would start is not an insignificant requirement and not a de minimis violation. In support of that argument, counsel has cited several cases. However, an examination of the cases cited by counsel establishes that they refer to the specific details which are required to be included in the 10-day notice and they do not refer to whether the need for such specificity is required with respect to the 12-hour notice. It is true that the legisla- tive history states that the Union should give notice of the actual time when the strike will start; however, I am not convinced that the failure to give the specific hour when the strike would start warrants the conclusion, in the circumstances of this case, that the Union failed to give the proper notice. The Center was on notice from 16 September that the strike would start on 28 Septem- ber. Six days before the strike was to start, the Union no- tified the Center that the strike would be delayed 1 day. I do not believe that the failure by the Union to specify the exact hour when the strike would start is sufficient to establish that the Union failed to meet the requirements of Section 8(g). In Greater New Orleans, the Board quoted from comments made by Congressmen Ashbrook and Thompson, which comments were made in the con- text of a union's notice of the postponement of the initial time set for the start of a strike, a situation present in the instant case. The Board (240 NLRB at 435) quoted as follows: The Board, in considering extenuating circum- stances, is expected to act in a reasonable manner con- sistent with the Committee 's intent as stated in its Report. Furthermore, the status of strikers as "em- ployees" would also be determined by the decision of the Board. Section 8(d) of the Act, which has been amended by this bill, clearly states "employ- ees" will lose their status as such if they participate in a strike outside of the notice periods . Should the labor organization be in violation of Section 8(g), the employees would then , according to statute, lose their status as "employees." Consequently, the reasonableness of the Board in applying the intent of 62 I do not find that constructive notice by a union would satisfy a union's obligation under Sec 8(g) of the Act, as contended by counsel for the General Counsel Therefore, I did not rely on the conversations between supervisors and employees on 28 September to establish that the Union gave the required notice, but those conversations do support the conclusion that the Union notified the Center that the strike would com- mence on 29 September COUNCIL'S CENTER FOR PROBLEMS OF LIVING 1151 the Committee to the facts is of major importance. [Emphasis supplied.] The Board then stated: Therefore, the legislative history of the health care amendments demonstrates not only Congress' con- cern for the continuity of patient care , but also its concern that Section 8(g) not be rigidly applied in light of serious consequences flowing from noncom- pliance with its provisions, i.e., the strikers' loss of employee status under the Act. We believe that our decision herein satisfies both of these expressed con- cerns of Congress. I, therefore, conclude that it would be unreasonable to find that the 34 employees should lose their status as em- ployees because the Union failed to state the specific hour when the strike would start in circumstances where the Center was on notice about the actual day of the strike at least 6 days prior thereto. G. The Intermittent Picketing Based on my evaluation of the security logbooks, the attendance sheet, and lunch sheet records described in detail above, I conclude that the Union picketed continu- ously from September 1982 through August 1983, al- though as noted above I do not find that the picketing, after the initial cases were settled, was to protest the dis- charge of the 11 employees. 6 s H. Conclusions Based on the record in this case, I conclude that the issuance of the disciplinary letters to the employees on 16 September and the discharge of the 11 employees on 20 September because they engaged in protected con- certed activities was violative of the Act . I further con- clude that when the employees struck on 29 September to protest these violations, at least in part, they were en- gaged in an unfair labor practice strike and, therefore, the Union was not obligated to give the notices required under Section 8(g) of the Act . Moreover, I find that the Union did comply with the notice requirement of Sec- tion 8(g). Therefore, I fmd that the Center violated Sec- tion 8(a)(3) when it discharged the 34 employees who were engaged in protected concerted activities. 64 Final- ly, I conclude that the Union did not violate the Act as alleged in the complaint. CONCLUSIONS OF LAW 1. Washington Heights-West Harlem-Inwood Metal Health Council, Inc., d/b/a The Council's Center for Problems of Living (Center) is an employer engaged in commerce within the meaning of Section 2(6) and (7) of es Counsel for the General Counsel contends that the logbooks are re- liable, probative evidence of when the Union picketed . However, as noted, the logbooks did not always reflect the presence of pickets in the period between 29 September and 16 December, a period when it is con- ceded that the Union engaged in continuous picketing. 64 Say-On Drugs, Inc., 253 NLRB 816, 822 (1980); Schnabel Associates, 272 NLRB 1022 (1984). the Act and a health care institution within the meaning of Section 2(14) of the Act. 2. District 1199, National Union of Hospital and Health Care Employees, RWDSU, AFL-CIO (Union) is a labor organization within the meaning of Section 2(5) of the Act. 3. By discharging and refusing to reinstate its employ- ees because they engaged in protected concerted activi- ties, the Center has violated Section 8 (a)(3) and (1) of the Act. 4. The above are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. 5. The Union has not violated the Act as alleged. REMEDY65 Having found that the Center has engaged in certain unfair labor practices, I shall recommend that the Center cease and desist therefrom and take certain affirmative action necessary to effectuate the policies of the Act. The Respondent having wrongfully discharged Wil- liam Wright, Audrey Singleton, Roslyn Darzy, Barbara Ross, Michael Johnson, Marion Francis, Irma Quitcon, Sandra Powell, Jonny Ramos, Thelma Dye, Deborah Carroll, Mary Pearl Taylor, Wakil Shakur, Carl Baptiste, Lauri Taylor, Charles Vines, Doris Shepperson , Lillian Font, Almarie Simmons, James Rashard , Allen Ander- son, Ernest Adams, Ida Newton, Victoria Brown, Mer- cedes Colinet, Mary Harmley, Victoria Anderson, Edith Albatt, Norma Akamatsu, Judith McKenzie, Andaye Dela Cruz, Sandra McFall, Lynn Nortman, Edith Beau- champ, and Azeeza Burston on 15 April 1983 and there- after refused to reinstate them I shall recommend that the Center offer them immediate reinstatement to their former jobs or, if such jobs no longer exist , to substan- tially equivalent jobs, without prejudice to their seniority and other rights and privileges , and to make them whole for any loss of earnings they may have suffered by reason of unlawful discrimination against them. The backpay provided and any interest due thereon shall be computed in the manner prescribed in F W. Woolworth Co., 90 NLRB 289 (1950), and Florida Steel Corp., 231 NLRB 117 (1977). I shall recommend also that the Center be required to post the usual notice advising its employees of their rights and the result of this proceeding. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed" ea The Center's contention that there should not be a backpay remedy because it discharged the 34 strikers after it was advised that the Region- al Director would issue the 8(g) complaint is without merit . The Region- al Director's decision did not provide an excuse for or mitigation of the Center's conduct. Saw-On-Drugs, supra. 66 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 1152 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ORDER The Respondent, Washington Heights-West Harlem- Inwood Mental Health Council, Inc., d/b/a The Coun- cil's Center for Problems of Living, New York, New York, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Discharging its employees or otherwise discnmi- nating against them with respect to their tenure of em- ployment, or any term or condition of employment be- cause they engaged in protected concerted activities on behalf of the Union, or any other labor organization. (b) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of their Section 7 rights. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer immediate and full reinstatement to William Wright, Audrey Singleton, Roslyn Darzy, Barbara Ross, Michael Johnson, Marion Francis, Irma Quitcon, Sandra Powell, Jonny Ramos, Thelma Dije, Deborah Carroll, Mary Pearl Taylor, Wakil Shakur, Carl Baptiste, Lauri Taylor, Charles Vines, Doris Shepperson, Lillian Font, Almarie Simmons, James Rashard, Allen Anderson, Ernest Adams, Ida Newton, Victori Brown, Mercedes Colinet, Mary Harmly, Victoria Anderson, Edith Albatt, Norma Akamatsu, Judith McKenzie, Andaye Dela Cruz, Sandra McFall, Lyn Nortman, Edith Beauchamp, and Azeeza Burston to their former jobs and, if those jobs no longer exist, to substantially equivalent jobs without prej- udice to their seniority or other rights and privileges and make them whole in the manner described in the remedy section. Further, the Center will expunge from its records any reference to the discharge of the above- named employees on 15 April 1983, and notify them in writing that this has been done and that evidence of these unlawful discharges will not be used as a basis for future personnel action against them. (b) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (c) Post at its New York, New York facility, copies of the attached notice marked "Appendix."67 Copies of the notice, on forms provided by the Regional Director for Region 2, after being signed by the Respondent's author- ized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecu- 67 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 " 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. IT IS FURTHER RECOMMENDED that the complaint against the Union in Case 2-CG-3,; be dismissed. 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 discourage activities on behalf of Dis- trict 1199, National Union of Hospital and Health Care Employees, RWDSU, AFL-CIO or any other labor or- ganization by discharging our employees or otherwise discriminating against our employees with respect to their tenure of employment, or any term or condition of employment. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their Section 7 rights. WE WILL offer immediate and full reinstatement to William Wright, Audrey Singleton, Roslyn Darzy, Bar- bara Ross, Michael Johnson, Marion Francis, Irma Quit- con, Sandra Powell, Jonny Ramos, Thelma Dye, Debo- rah Carroll, Mary Pearl Taylor, Wakil Shakur, Carl Bap- tiste, Lauri Taylor, Charles Vines, Doris Shepperson, Lillian Font, Almarie Simmons, James Rashard, Allen Anderson, Ernest Adams, Ida Newton, Victoria Brown, Mercedes Colinet, Mary Harmley, Victoria Anderson, Edith Albatt, Norma Akamatsu, Judith McKenzie, Andaye Dela Cruz, Sandra McFall, Lynn Nortman, Edith Beauchamp, and Azeeza Burston to their former jobs or, if those jobs no longer exist, to substantially equivalent jobs, without prejudice to their seniority or other rights and privileges, and make them whole in the manner described in the Remedy. Further WE WILL ex- punge from our records any reference to the discharge of the above-named employees on 15 April 1983, and notify them in writing that this has been done and that evidence of these discharges will not be used as a basis for future personnel actions against them. WASHINGTON HEIGHTS-WEST HARLEM- INWOOD MENTAL HEALTH COUNCIL, INC. D/B/A THE COUNCIL'S CENTER FOR PROB- LEMS OF LIVING