Southern California Developmental Health Services, Inc.

862 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Southern California Developmental Health Services, Inc. and Teamsters Local No. 186, affiliated with the International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO.' Cases 31-CA-16421 and 31-CA-16430 August 16, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On May 18, 1988, Administrative Law Judge Richard J. Boyce issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering brief. The Board has considered the decision and the record in light of the exceptions and briefs 2 and has decided to affirm the judge's rulings, findings, and conclusions and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Southern California Developmental Health Services, Inc., Camarillo, California, its officers, agents, succes- sors, and assigns, shall take the action set forth in the Order. January 11 and 12, 1988. The complaint, based on charges filed by Teamsters Union Local No. 186, affili- ated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO (the Union), alleges that Southern California Developmental Health Services, Inc. (Respondent) vio- lated Section 8(a)(3) and (1) of the National Labor Rela- tions Act (the Act) by discharging Lesi Crowel, Brenda McMillian, Bruce Pickrell, and Gwenndolynn Thompson on February 22, 1987; by discharging Vincente Wood- ward on February 23, 1987; and by discharging Benja- min Long on March 4, 1987.' The complaint alleges that Respondent further violat- ed Section 8(a)(1) on February 16, 1987, when Facility Administrator Jean Turnage "impliedly threatened an employee with loss of employment because of that em- ployee's union activity"; and on February 24, 1987, when Executive Director Gary Gill "promised an employee in- creased benefits if he refrained from supporting the Union." 1. JURISDICTION AND LABOR ORGANIZATION From February 1 through May 22, 1987, Respondent managed a complex of five homes for developmentally disabled adults in Camarillo, California. It received over $250,000 in Government funds to do so, of which over $5000 came from Federal sources. Respondent thus man- aged a health care institution as defined by Section 2(14) during that period; and, so doing, was engaged in and af- fecting commerce within Section 2(6) and (7). The Union is a labor organization within the meaning of Section 2(5) of the Act. Mori Pam Rubin, Esq., for the General Counsel. Gary Gill, Executive Director and Kathi Mottaz, of Camar- illo, California, for the Respondent. ' On November 1, 1987, the Teamsters International Union was read- mitted to the AFL-CIO. Accordingly, the caption has been amended to reflect that change. 2 The Respondent has requested oral argument. The request is denied as the record, exceptions, and briefs adequately present the issues and the positions of the parties. The Respondent's sole exception is to the judge's finding that the Board has jurisdiction in this matter. The Respondent asserts that it was not the operator of the instant health care institution but merely managed it for the operator, so that the jurisdictional standard of $500,000 for retail enterprises should apply rather than the $250,000 standard for health care institutions as defined in Sec. 2(14) of the Act. The Respond- ent, however, stipulated to facts that indicate it was, during the relevant period of time, the Employer in this matter. Furthermore, the judge cred- ited testimony that showed the Respondent acted as the employer and operator of this health care institution. Accordingly, we find that the admission in the uncontroverted stipula- tion remains binding, and that the judge's assertion of jurisdiction is proper. Milford Manor, 233 NLRB 1283 at fn. 1 (1977); see also Resident Home for the Mentally Retarded of Hamilton County, 239 NLRB 3, 6 (1978). DECISION STATEMENT OF THE CASE RICHARD J. BOYCE, Administrative Law Judge. This consolidated matter was tried in Los Angeles, California, 290 NLRB No. 97 II. THE ALLEGED MISCONDUCT A. Evidence 1. Background By contract with an enterprise known as Total Living Continuum (TLC), Respondent took over management of the Camarillo homes from TLC as of February 1, 1987. The homes, each with six "client" beds, were named Bedford, Catalina, Harmony, Loma, and Row- land.2 Respondent also operated similar facilities els- where in Southern California at the time. Gary Phillip Gill, Ph.D., with the titles executive director and clinical director, is Respondent's ranking official. Beneath him in the Camarillo chain of command were Terri Guiboa and ' Sec. 8(a)(3) forbids an employer from "discriminat[ing] in regard to hire or tenure of employment to encourage or discourage membership in any labor organization." Sec. 8(a)(1) prohibits an employer from "interfer[ing] with, or coerc[ing] employees in the exercise of the rights guaranteed in Section 7" of the Act. Sec. 7 guarantees employees "the right to self-organization, to form, join, or assist labor organizations ... and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection ... . 2 Although the contract plainly envisioned permanency, Respondent terminated the arrangement by letter to TLC dated May 22, 1987, return- ing control to TLC. Respondent had concluded, according to the letter, that it did not "have the resources in terms of money, personnel and time ... to properly operate the five TLC facilities." SOUTHERN CALIFORNIA HEALTH SERVICES 863 Jean Turnage, entitled "facility administrators."a Gill transferred them from an Orange County facility, placing Guiboa in charge of Bedford, Loma, and Rowland, and Turnage in charge of the other two. Gill testified that the five homes were "quite short staffed" when the changeover took place; that Respond- ent needed "at least" 12 or 13 additional employees. Re- spondent consequently began advertising for help imme- diately, according to Gill, and gave tryouts to "a large number of" the resulting applicants. In some instances, Gill continued, Respondent was "so desperate that it did not follow the tryout procedure."4 Gill further testified that "continuity of staff" was de- sired; that "it was important to keep people who had learned to work with the clients, and to maintain as much stability as possible with respect to the staff." Gill recalled, as well, that a case manager for the Tri-County Regional Center, which monitored the homes on behalf of the California Department of Developmental Services, was "very concerned that [Respondent] keep on as many TLC staff as possible" to minimize client anxiety. 5 All the alleged discriminatees were on the TLC staff before the changeover, with three-Crowel, Thompson, and Woodward-having the title of house supervisor and possessing certain indicia of true supervisory authority. Among Respondent's first actions, coincident with the installation of Guiboa and Turnage as facility administra- tors, was to divest those three of supervisory status; and, a few days later, to give each the title of program coor- dinator. By memorandum dated February 9 to families of the "residents," Gill stated, referring to Crowel, Thompson, and Woodward, that Respondent was "extremely fortu- nate that three of the most experienced House Managers from TCL are working with us, although in a new ca- pacity." The memorandum also states that most staff sal- aries would be "increased substantially, which will allow us to better retain our current staff." By memorandum to the employees dated February 11, Gill sought to dispel "rumors" that Respondent intended to replace "all of the old staff," proclaiming, "I want to assure you that I have no intention of doing that." The same memorandum stated that , while Respondent "will be instituting a slightly different system," it wanted the staff "to carry on with the current programs" for the present. Referring to Crowel's, Thompson's, and Wood- ward's new roles, it stated that their "initial responsibility is to make sure that the current program is maintained"; and that, upon introduction of the new program, they "will assist in training staff in how to implement it as well as in making sure it is operated properly." 3 The parties stipulated that Guiboa and Turnage were supervisors and/or agents of Respondent for purposes of the Act. 4 Gill testified that "most or, the applicants "were tried out for just several hours and paid out of petty cash" if not retained. a The case manager stressed, per Gill, that the "clients do not like changes and ... are difficult to work with, and it's therefore important to keep people who have learned to work with them and to maintain as much stability as possible." 2. Organizational activity The idea of union representation apparently was first broached on February 4 in a conversation among Crowel, Thompson, and Woodward. The next day Thompson raised the matter in a telephone conversation with Dennis Shaw, an official of the Union, and an orga- nizational meeting took place on February 12 at a Bob's Big Boy restaurant. The meeting was conducted by Shaw and attended by perhaps 10 employees. Crowel, Thompson, and Woodward signed union cards during the meeting, distributed cards to coworkers, and other- wise espoused representation during the ensuing few days. The other three alleged discriminatees also signed cards: Long and Pickrell at work about February 12 and McMillian in Thompson's car on February 16. These three solicited the signatures of others, as well. On February 20, the Union filed a petition for election with the NLRB.a Gill testified that he first learned of the union activity on February 20 when informed of the filing. Thompson testified, on the other hand, that she told Gill, following a "very hostile" staff meeting on February 18, that he "shouldn't have a bad attitude with everyone else, because [she] was the one that started the union drive." Gill did not address this incident in his tes- timony, but did acknowledge that he knew before Febru- ary 20 that some of the employees were upset and had been circulating a petition. He added, however, that he "never understood [that] to have anything to do with the Union." The record suggests that Guiboa knew of the union ferment almost from its inception, and that Turnage also was aware well before Gill's professed first knowledge. Thus, Thompson testified without contradiction that she told Guiboa about it shortly after her initial telephone conversation with Union Official Shaw; and Long testi- fied, likewise without contradiction, that he overheard an exchange between Turnage and Guiboa, on February 12 in which Guiboa wondered where Crowel, Thomp- son, and Woodward were, and Turnage replied that she thought they were starting a union.' 3. Turnage's alleged February 16 misconduct McMillian, who had been vacationing in the East since before the changeover, first worked for Respondent on February 16. Thompson, who is her sister, drove her to work that day, apprising her of the union activity and in- ducing her to sign a card . That afternoon at work, ac- cording to McMillian, she asked coworker Angie Moreno if she had signed a card . Some time later, McMillian testified, Turnage told her that she was "start- s An election was held March 21. The tally was 11 to 9 for representa- tion, with 10 challenged ballots. The matter apparently was never finally resolved because of Respondent's withdrawal from management in May. r Guiboa did not refer to Crowel, Thompson, and Woodward by name, according to Long, but instead as "the three musketeers-an appel- lation by which they were known to coworkers and management alike. Asked his notion of the term's derivation, Gill testified that the three "work together in concert, they spend a lot of time together, they share certain concerns, they are sort of presenting a unified front." He contin- ued that he "never understood it to mean having any implications or re- percussions or any connection with the unionization efforts." 864 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ing on the wrong foot" by "trying to get people to sign union cards at work," and that she would have "to be loyal to the Doc if [she] wished to work for" Respond- ent. McMillian's rendition of this incident is uncontrovert- ed. Turnage did not testify; moreover, Respondent con- cedes in its brief that Turnage "probably did make the threats" attributed to her. 4. The five discharges of February 22 and 23 a. Additional background Gill testified that his responses, on learning of the elec- tion petition, were several. First, he spoke with Guiboa and Turnage. They told him they knew the employees were discontented, he recalled, but claimed ignorance of any union activity. He then called TLC President Mark Katz, declaring that Respondent was rescinding the con- tract by which it had assumed management of the homes, after which he had "two or three" telephone conversations with the Tri-County Regional Center. The Regional Center prevailed on him to rescind the con- tract, he testified, at the same time intimating that the in- trusion of a union would be a "bad precedent." Gill conferred with a lawyer on February 21, asserted- ly telling him that the filing of the petition put him in "an awkward position" inasmuch as he had "made some decisions about staffing changes and [did not] want it to appear that [he was] doing it because of the union activi- ty." The lawyer recommended, according to Gill, that Respondent meet that problem by issuing written termi- nation notices to those being discharged. Each of the five alleged discriminatees fired on Febru- ary 22 and 23 received a written notice of termination, after which the practice was dropped. All were signed by Gill and dated February 22. The record contains no substantial evidence that Gill's decision to effect the February 22 and 23 discharges in fact was made before he received word of the election petition or otherwise learned of the union activity. It contains complelling evidence, on the other hand, at least with regard to the three program coordinators, that the decision was reached and carried out in haste. Thus, by memorandum to the families dated February 22, Gill stated: When I wrote to you before, I had indicated that Lesi Crowel, Gwen Thompson, and Vince Wood- ward would be functioning in the newly created po- sition of Program Coordinator. Unfortunately that system did not work as well as I had envisioned, and I have concluded that we can provide more closely coordinated supevision by relying on the Facility Administrators. . . . In view of our deci- 8 Gill testified that the Regional Center informed him, in the same con- text, that it had contracted its oversight agency in Sacramento , which re- ported that no comparable facility in the State was organized. Gill was notably evasive when pressed by counsel for the General Counsel wheth- er the Regional Center had voiced concern about a bad precedent. He answered, variously: "they were being very cautions"; "I'm not sure that's what they were saying"; "they would probably deny that they ever said it that was"; and "I sort of figured out what they were saying, yeah." sion not to use Program Coordinators, I am tempo- rarily bringing up a few of our Orange County su- pervisors to help institute our new . . . program a bit sooner than I had planned. [Emphasis added.] b. The discharge of Pickrell Pickrell, a programmer at Catalina, was the first of the six to be told, receiving a termination notice from Tur- nage the morning of February 22. The notice gave as reason for the action: After reviewing your performance we have con- cluded that your work performance is not satisfac- tory and we no longer desire your services. Pickrell testified that after he read the notice he asked Turnage for an explanation that she told him to speak with Gill and that Gill told him, simply, that he had de- cided, after "consulting with supervisors and other staff," that Pickrell's "services were no longer needed." Gill did not describe any such consultations in his recital, nor does the record contain any convincing evidence other- wise that they occurred. At the time Pickrell was romantically involved with Crowel, who was to be fired later that morning. Gill tes- tified that "one of the considerations" behind Pickrell's discharge, although not "a major component," was Grill's concern that his continued presence after Crowel's departure "might cause problems." A more basic reason, Gill averred, was that while Pickrell "worked well with the clients and implemented the existing program," he "was opposed to the changes that [Gill] was trying to make." Gill elaborated: I felt like I had to make some changes, and I felt like I had to put together a team that would be willing to make some changes and modifications and would be willing to work with me. I just simply felt that I had to put together a team that was supportive of the kind of programming and clinical inttervention that I wanted to make. Gill admittedly "never sat down face to face" with Pickrell to discuss his attitude toward the proposed changes. He added that the information he obatained about Pickrell's attitude "was hearsay," but did not reveal the sources or describe the nature of that informa- tion. Gill admitted, as well, that "most of the employees" felt "they had a good system" as it was, and "that there was no need to make any changes"; yet, not everyone of that persuasion was discharged. No changes had been instituted as of February 22. c. The discharges of Crowel and Thompson Turnage called Thompson at home the morning of February 22, reporting that Gill wanted to meet with her, Crowel, and Woodward at 11 a.m ., and asking that she pass the word to the other two. Thompson was unable to locate Woodward , but she and Crowel appeared at Gill's office as directed. Gill told them that he had "thought it was going to work out, but it's just not working out"; and "after further SOUTHERN CALIFORNIA HEALTH SERVICES consideration" he had "decided to terminate" them. With that, he handed each a termination notice and a final paycheck, said he "appreciate[d] all [their] help," and es- corted them to the door.9 Both termination notices stated: REASONS FOR ACTION After careful consideration and analysis, this man- agement of our agency has decided to eliminate your job position. Asked why he had decided to eliminate the program coordinator positions so soon after creating them, Gill testified that "a number of things" had happened, "the least of which was the unionization effort." He enlarged: [A]s I reevaluated the amount of money that was coming in, and the amount of expenses that I had, I became aware that there simply wasn't any way, despite how good an appointment it might have been clinically, to maintain the five supervisors ['Furnage, Guiboa, and the three program coordina- tors], and that, regretfully, I had to make that deci- sion, not on a clinical basis, but simply on a finan- cial basis. 10 Gill continued: I think if I could have afford [ed] it, they [the pro- gram coordinators] would have been of very big help to me, and it would have helped the program, no question about that in my mind. d. The discharge of McMillian As earlier mentioned, McMillian, a programmer, first worked for Respondent on February 16, having just re- turned from vacation. Also, as previously noted, Turnage told her on February 16 that she was "starting on the wrong foot by trying to get people to sign union cards at work," and that she "needed to be loyal to the Doc if [she] wished to work for" Respondent. McMillian worked at Catalina under Turnage, on Feb- ruary 16. She had spent much of the preceding night on an airplane from the east coast, not expecting to work February 16, and was persuaded to work that day on a This description of the encounter derives from the testimony of Crowel and Thompson. Gill testified that it "went pretty much as they described." '0 Further, with regard to Respondent's economic circumstances, as newly perceived by Gill, he testified: I had had several meetings with licensing, I had become aware of the ... extent that the deficiency had to be corrected , the extent that the findings that were being applied to TLC, in that effect, to [Responent], I had become aware of problems with the land, with the lease, I became aware that [Respondent] would have to pay rent for the burned-out building [a structure on the Catalina premises], and that the landlord didn't intend in any quick way to rebuild it. I became aware that at least two of the monies from at least two of the clients was going to be held up, and that's six thousand dollars a month. By then I had began to make corrections on one of the homes and it had already cost close to eight thousand dollars to make the repairs and buy the additional furniture , and I could see that to bring all the other houses into compliance was going to be very expensive. 865 little notice because of "an emergency."" Turnage, un- impressed with her performance , recommended during a scheduling meeting February 18 that she not be retained. Thompson and Crowel, citing the arduous plane ride, argued that she had not received a fair trial. Gill agreed, and Guiboa volunteered to "take her " at Rowland. Gill thereupon penciled in McMillian to work several of the remaining days in February, as well as March 3-5.18 McMillian worked full shifts at Rowland on February 20 and 21. She also worked on February 22 until about noon, when Guiboa handed her an envelope and told her to read the enclosed note . The note stated in relevant part: After reviewing our staffing needs we have con- cluded that we do not have a full-time position for you in our agency at this time. We appreciate your willingness to fill in at Catalina and Rowland House this past week. After reading the note, McMillian exclamined: "You couldn't possibly be overstaffed. Why? What have I done?" Guiboa answered, "It's all in the envelope." Gill testified that his position regarding McMillian is: ... that we tried her out and looked at other offers that we had-we were trying to get an all-male staff at Rowland and we simply decided that, that there were other people who would be more appro- priate for that position. Gill appended that he did not "mean to imply that he fired McMillian "because she had done a poor job." Rather, he went on, he was "getting a lot of pressure from the Regional Center to try to use as many male staff as possible to deal with some difficult male clients," so he decided on February 21 "to try to go with a male staff" at Rowland. The record contains no evidence that a male replace- ment for McMillian had been located or was in prospect at that time. Gill conceded that the procurement of a male staff "was difficult to do" and "took awhile." e. The discharge of Woodward Because of Thompson's inability to locate Woodward on February 22, Gill would have discharged him when he fired the other two program coordinators, Crowel and Thompson. Woodward's termination notice was identical to theirs, prepared by Gill at the same time. Woodward received formal word the afternoon of February 23. Informed that morning by Pickrell about the other discharge, he called Respondent's office, and was told that a paycheck was "waiting for" him. He consequently went to the office that afternoon, where- 11 The flight arrived at 2 am. McMillian received a call at 7 am. that she was needed at work. la Gill assertedly decreed that "the fair thing to do before making a decision was to have her try out for three days ." The schedule, which is in evidence, unambiguously establishes that McMillian's status was more permanent than that, however, as do her personnel records, which state that her hire date was "2/1/87," and a staffing sheet prepared by Re- spondent about February 1, which contains this entry: "Brenda McMillen [sic] (on leave)." 866 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD upon Gill gave him the termination notice and the same explanation he had given Crowel and Thompson. In ad- dition, Gill assured Woodward that he had done "a really good job" and that Respondent would not cause him "any trouble" concerning unemployment benefits. Gill also raised Woodward's failure to work scheduled on February 21. Woodward responded, without elabora- tion, that "things had gotten a little too strange" at work the night before, prompting him to stay away.13 Gill testified that "it was [his] assumption that Wood- ward was quitting, because he didn't show up the [21]." Gill admitted, however, that Woodward never said he was quitting; that Woodward's position was being elimi- nated in any case; and that Gill had prepared the termi- nation notice before hearing about the absence. Gill testi- fied, as well, that the decision to terminate Woodward "had nothing to do with the quality of his work, it was simply a matter of there wasn't enough revenues generat- ed to handle five supervisors." Regarding Woodward's absence, Gill acknowledged that Respondent "had problems with people not showing up." The record suggests that employees generally were not assumed to have quit, nor were they discharged, when they failed to show up. it. Ben had worked there before, had a notion of how the old program worked, was strongly com- mitted to the old system. I felt I needed to make some changes, needed to implement the system that I was familiar with and that I could properly super- vise. He was very open about his opposition, he was convinced that his way was proper, but he was op- posed to my way, so I felt on that basis I had to make a change and get somebody in there who would work with me. Gill continued: It had nothing to do with the quality of his work or how long he worked with the clients. I think he cared about the clients and I think he was firmly convinced that his way was correct and that he .. . was helping the clients. Gill's affidavit, provided during the investigation of this matter, does not mention absenteeism as a reason for Long's discharge. Gill concededly never warned Long about absenteeism and, as earlier mentioned, Respondent "had problems with people not showing up." 5. Gill's alleged February 24 misconduct Long, the remaining alleged discriminatee, testified about a February 24 conversation with Gill in the staff office at Rowland, in which Gill said he had "heard rumors of a union starting," then told Long he would re- ceive "a higher position and a higher raise" if he did not "go to any organization or be a part of any organiza- tion." Gill did not speak of this in his testimony, nor was Long's account otherwise challenged. 6. The discharge of Long Long, a programmer aide at Rowland, was discharged by Gill the morning of March 4. Long testified that Gill told him at the time that he was taking the action be- cause Long was "out to sabotage the system and . . . did not want the program to work." Long responded, so he recounted, by asking if he could talk with Gill, anyway, about one of the facility administrators whom Long sus- pected of racial prejudice,14 and Gill answered that he "only takes care of people that are loyal to him," and some of the employees were "out to stab him in the back." This account was not disputed by Gill. Long did not receive a written termination notice. Gill testified that Long was fired . . . because on several occasions he didn't show up for work when assigned and we couldn't get in touch with him, and he was opposed to implement- ing the program the way I was trying to implement '' Woodward testified that he had worked "a good deal of the night of February 20, although not scheduled to do so, because of an emergen- cy; that about midnight someone, presumably Turnage, instructed a new employee to escort Woodward off the premises; and that, as a result, Woodward "was absolutely disgusted" and chose not to report on Febru- ary 21. 14 Long is black. B. Conclusions 1. Turnage's alleged February 16 and Gill's alleged February 24 misconduct As noted, Respondent concedes in its brief that Tur- nage "probably did make the threats" attributed to her- namely, telling McMillian on February 16 that she was "starting on the wrong foot" by "trying to get people to sign union cards at work" and that she would have "to be loyal to the Doc if [she] wished to work for" Re- spondent. With respect to Gill's alleged February 24 misconduct, Long's testimony was both uncontroverted and convinc- ing that Gill told him, in the context of "rumors of a union starting," that he would receive a better job with higher pay by declining to participate. The remarks of both violated Section 8(a)(1) as al- leged; Turnage's by linking job security and Gill's by linking a better job and higher pay to abstention from union activities. 2. The allegedly unlawful discharges a. Controlling principles The Board stated in Wright Line: [W]e shall henceforth employ the following causation test in all cases alleging violation of Section 8(a)(3) or violations of Section 8(a)(1) turning on employer motiva- tion. First, we shall require that the General Counsel make a prima facie showing sufficient to support the in- ference that protected conduct was a "motivating factor" in the employer's decision . Once this is established, the burden will shift to the employer to demonstrate that the SOUTHERN CALIFORNIA HEALTH SERVICES 867 same action would have taken place even in the absence of the protected conduct.16 b. The five discharges of February 22 and 23 I conclude that the General Counsel has made the req- uisite prima facie showing that the five discharges of February 22 and 23 were in unlawful retribution for the discharged employees' union activites and the Union's at- tendant filing on February 20 of a petition for election. The bases for this conclusion are: (a) Each of the five dischargees was conspicuously prounion. All signed cards; all espoused unionization to coworkers; Crowel, Thompson, and Woodward partici- pated in the seminal conversation on February 4; Thompson made the initial contact with the Union; McMillian was unlawfully rebuked by Turnage on Feb- ruary 16 about "trying to get people to sign union cards at work"; and Thompson told Gill on February 18 that she "was the one that started the union drive." 16 (b) All the termination notices were dated February 22, four of the discharges occurred that day, and the fifth occurred a day later only because Woodward was unavailable on February 22. This contiguity indicates a common motive or trigger. (c) That the petition was the common trigger is sug- gested by the temporal proximity between its filing and the discharges; by Gill's deep distress over the petition (and, by extension, the underlying union activity), as shown by his consequent declaration to TLC President Katz that he was rescinding their contract; 17 and by the haste of the discharge decisions implicit in Gill's memo- randum of February 22. (d) Union sympathies aside, each of the dischargees was at least an acceptable employee . Thus, Gill testified that the three program coordinators "would have been of very big help" if retained; that he did not "mean to imply" that he fired McMillian "because she had done a poor job"; and that Pickrell "worked well with the cli- ents and implemented the existing program ." This ac- ceptability, in combination with Respondent's shorthan- dedness and the desirability of retaining as many as possi- ble of the existing staff to preserve the continuity of staff-client relationships, further indicates that the peti- tion was the trigger. (e) The issuance of termination notices, at variance with Respondent's usual practice, betrays its perception that the discharges needed special cosmetic treatment to survive scrutiny. is 251 NLRB 1083, 1089 (1980). This formulation received Supreme Court approval in NLRB Y. Transportation Management Corp., 462 U.S. 393 (1983). 1s Thompson and McMillian, both with convincing demeanor, are credited that Thompson made this remark to Gill. Gill denied it only by implication, testifying that he learned about the union activity when told about the petition. That testimony came across as contrived, to convey the notion that at least some of the discharge decisions were made before Gill came into knowledge, and is not credited. 17 Gill's distress doubtless was reinforced, moreover, by the Regional Center's intimations that unionization would be a "bad precedent." Sub- stantial union animus also was revealed by Turnage's unlawful February 16 comments to McMillian and Gill's unlawful February 24 words to Long. I additionally conclude that Respondent has failed to overcome the General Counsel's prima facie showing. My reasons are: (a) Gill's testimony that he terminated the three pro- gram coordinators "not on a clinical basis, but simply on a financial basis," was not convincing. Not only was his demeanor in the telling unpersuasive , but his recital was nebulous, lacked testimonial or documentary corrobora- tion, and failed to explain with plausibility how the eco- nomic plight so forecefully captured his attention rough- ly coincident with the filing of the petition. (b) Gill's testimony about Pickrell-that he was dis- charged mainly because he "was opposed to the changes that [Gill] was trying to make"-likewise was uncon- vincing. Again, his testimonial demeanor was unimpres- sive, and his professed bases for faulting Pickrell's atti- tude were vague and uncorroborated. Beyond that, Gill's admission that "most of the employees" saw no need to make any changes," yet were not fired, leaves little doubt that his concerns about Pickrell's attitude were but veiled-and incriminating-references to his prounion sentiments. Incriminating, as well, was Gill's testimony that "one of the coonsiderations" behind Pickrell's discharge was a concern that, because of his romantic link with Crowel, he "might . cause problems" after her termination. The il- legality of Crowel's discharge thus necessarily attaches to Pickrell's. Finally, the reason stated on Pickrell's termination notice-that his "performance [was] not satisfactory"- does not correspond with Gill's testimony, a circum- stance impeaching both. (c) Gill's testimony regarding McMillian's discharge suffered much the same deficiencies of demeanor and content as that just discussed . His statement that he had been "getting a lot of pressure from the Regional Center to try to use as many male staff as possible" was neither persuasively presented nor corroborated; and, even if true, does not explain the timing of the discharge deci- sion, the day after the petition was filed , given that a male replacement evidently had not been located and that Respondent was seriously understaffed. (d) As previously noted,' s Gill's testimony that he learned of the union activity on February 20, when told about the petition, came across as contrived to convey the notion that at least some of the discharge decisions had been made before he came into knowledge. His testi- mony that he told Respondent's lawyers on February 21 that the petition put him in "an awkward position" inas- much as he had "made some decisions about staffing changes" and did not want them to appear union -related, bore that same aura of contrivance . Apart from the sundry chinks in Respondent's defenses elsewhere noted, those defenses were grievously compromised by Gill's perceived need to dissemble in this fashion. la See in. 16, supra. 868 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD c. The discharge of Long I conclude that the General Counsel also has made a prima facie showing that the March 4 discharge of Long was unlawful. Thus: (a) Long was actively prounion, and Gill evinced his awareness of that on February 24 by targeting Long for a better job and higher pay if he refrained from union activity. (b) By Gill's admission, the discharge "had nothing to do with the quality of [long's] work." (c) Gill told Long in the conversation attendant the discharge that Long was "out to sabotage the system," that some of the employees were "but to stab him in the back," and that he `only takes care of people that are loyal to him." 19 In all the circumstances, including the continuing pendency of the election, the inference is un- avoidable that Gill was alluding, at least in substantial part, to Long's prounion sentiments and activities and those of his coworkers. (d) As revealed by Gill's earlier unlawful discharge of five employees, the extreme sanction of discharge was central to his union-fighting philosophy. I further conclude that Respondent has not overcome the prima facie showing, Gill's testimonial demeanor once more was less than compelling, and his stated grounds for the discharge-that Long had not shown up for work "on several occasions" and "was opposed to implementing the [new] program"-again were wanting in specificity and corroboration. Yet worse, Gill's failure to cite Long's absenteeism in his affidavit, coupled with his admission that absenteeism was not unique to Long and that he had never warned Long about it, warrants the surmise that this reason was of after-the-fact conjura- tion; and his mention of Long's resistance to the new program fairly can be construed, as in Pickrell's case, as a coded reference to Long's union sympathies. CONCLUSIONS OF LAW 1. Respondent violated Section 8(a)(3) and (1) of the Act by discharging Lesi Crowel, Brenda McMillian, Bruce Pickrell, and Gwenndolynn Thompson on Febru- ary 22, 1987, by discharging Vincente Woodward on February 23, 1987, and by discharging Benjamin Long on March 4, 1987. 2. Respondent additionally violated Section 8(a)(1) on February 16, 1987, when Jean Turnage told McMillian that she was "starting on the wrong foot" by "trying to get people to sign union cards at work," and that she would have "to be loyal to the Doc if [she] wished to work for" Respondent; and on February 24, 1987, when Gary Gill said to Long, in the context of "rumors of a union starting," that he would receive a better job, with higher pay, by declining to participate. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed20 19 Long's uncontroverted testimony in these particulars is credited. 20 All outstanding motions inconsistent with this recommended Order are denied. If no exceptions are filed as provided by Sec . 102.46 of the Board's Rules and Regulations, the findings, conclusions, and recom- mended Order shall, as provided in Sec . 102.48 of the Rules, be adopted ORDER The Respondent, Southern California Developmental Health Services, Inc., Camarillo, California, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Threatening employees with loss of jobs, or prom- ising them better jobs and higher pay, to discourage them from engaging in activities on behalf of Teamsters Union Local No. 186, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO or any other labor organization. (b) Discharging employees for engaging in activities in support of any labor organization. (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the purposes and policies of the Act. (a) Make Lesi Crowe], Brenda McMillian, Bruce Pick- rell, Gwenndolynn Thompson, Vincente Woodward, and Benjamin Long whole, with interest where appropriate, for any losses of wages or benefits suffered as a conse- quence of Respondent's unlawful terminations of them in February and March 1987.2 1 (b) If reasonable in all the circumstances, 22 offer to Lesi Crowel, Brenda McMillian, Bruce Pickrell, Gwenn- dolynn Thompson, Vincente Woodward, and Benjamin Long immediate and full reinstatement their former posi- tions or, if those positions no longer exist, to substantially equivalent positions, without prejudice to their seniority and other rights and privileges. (c) Expunge from the employment records of Lesi Crowel, Brenda McMillian, Bruce Pickrell, Gwenndo- lynn Thompson, Vincente Woodward, and Benjamin Long any reference to their terminations; and notify them in writing that this has been done and that their terminations will not in any way serve as a basis for future personnel or disciplinary action affecting them. (d) 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. (e) Mail copies of the attached notice marked "Appen- dix"23 to all employees who worked in any of the five by the Board and all objections to them shall be deemed waived for all purposes. 21 In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), interest on and after January 1 , 1987, shall be computed 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 amendment to 26 U.S.C. § 6621), shall be computed in accordance with Florida Steel Corp., 231 NLRB 651 (1977). 22 As determined in the compliance phase of this proceeding. 23 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." SOUTHERN CALIFORNIA HEALTH SERVICES 869 homes managed by Respondent in Camarillo, California, at any time from February 20 through March 21, 1987. Copies of the notice, to be provided by the Regional Di- rector for Region 31 , shall be signed by Respondent's au- thorized representatives and then promptly mailed by Respondent to the employees at their last known ad- dresses.24 (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. '* In light of the apparent impossibility of meaningful posting, mailing is necessary to ensure adequate dissemination of this Order. APPENDIX NOTICE To EMPLOYEES POST 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. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protec- tion To choose not to engage in any of these protect- ed concerted activities. WE WILL NOT threaten employees with loss or jobs, or promise them better jobs and higher pay, to discourage them from engaging in activities on behalf of Teamsters Union Local No. 186, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO or any other labor organization. WE WILL NOT discharge employees for engaging in ac- tivities in support of any labor organization. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL make Lesi Crowel, Brenda McMillian, Bruce Pickrell, Gwenndolynn Thompson, Vincente Woodward, and Benjamin Long whole, with interest where appropriate, for any losses of wages or benefits suffered as a consequence of our unlawful terminations of them in February and March 1987. WE WILL, if reasonable in all the circumstances as de- termined by the NLRB, offer to Lesi Crowel, Brenda McMillian, Bruce Pickrell, Gwenndolynn Thompson, Vincente Woodward, and Benjamin Long immediate and full reinstatement to their former positions or, if those positions no longer exist, to substantially equivalent posi- tions, without prejudice to their seniority and other rights and privileges. WE WILL expunge from the employment records of Lesi Crowel, Brenda McMillian, Bruce Pickrell, Gwenn- dolynn Thompson, Vincente Woodward, and Benjamin Long any reference to their terminations; and WE WILL notify them in writing that this has been done and that their terminations will not in any way serve as a basis for future personnel or disciplinary action affecting them. SOUTHERN CALIFORNIA DEVELOPMENTAL HEALTH SERVICES, INC.