Contemporary Guidance Services, Inc.

50 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Contemporary Guidance Services , Inc and Local 868, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO and Dolores Beckham and Kevin Mulvey Cases 2-CA-21761 2-CA- 21917 and 2-CA-21931 September 29 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On March 29 1988 Administrative Law Judge Robert T Snyder issued the attached decision The Respondent filed exceptions and a supporting brief The National Labor Relations Board has delegat ed its authority in this proceeding to a three member panel The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge s rulings findings i and i The Respondent has excepted to some of the judge s credibility find rags 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 Additionally we are satisfied that the Respondents conten Mons that the judge was biased are without merit There is nothing in the record to suggest that his conduct at the hearing his resolutions of credi bility hi rulings or the inferences he drew were affected by any bias or prejudice 2 The judge refused to consider certain Appendixes the Respondent a tached to its posthearing brief (see fn 3 of the judge s decision) and the Respondent filed a motion to reopen the record o receive them n evi dence We deny the Respondents motion on the ground that the Re spondent has not shown that the admission of the evidence in question would require a different result in this case See Sec 102 48(d)(1) of the Board s Rules and Regulations In concluding that the Respondent violated Sec 8 (a)(5) the judge found that the agreed on unit was appropriate for purposes of collective bargaining and that in any event the Respondent was precluded from raising the appropriateness of the agreed on unit in this proceeding We note that the evidence supports a finding that counselors housekeeping and maintenance employees at the three residences and the agreed on unit is an appropriate unit The record establishes that the three rest dences are managed and supervised by a common director the employ ees from these three residences have periodic contact with one anothei perform similar functions from residence to residence and have little or no contact with staff employees at the Respondents other building In addition there is evidence of transfers from one residence to another Thus while an overall unit may as the Respondent argues in this case be an appropriate unit it is not the only appropriate unit The community of interest among those employees in the agreed on unit warrants a find ing that it is an appropriate unit Further we reject the Respondents at gument that the agreed on unit includes professionals The counselors handle client problems assist in cooking maintaining residential rooms grooming of clients and administration of medications as needed Qua] fi cations for the counselor position are a high school education and 1 year of experience working with the mentally retarded Based on the qualifies tions and the evidence regarding the job responsibilities of a counselor we find that these employees are not professionals and thus were prope ly included in the agreed on unit Other employees who may be profes sionals such as the psychiatrists social workers and therapists were not included in the unit sought by the Union In light of our finding that the agreed-on unit is an appropriate unit we find it unnecessary to rely on Chemetron Corp 258 NLRB 1202 ( 1981) enf denied 699 F 2d 148 (3d Cir 1983) in finding that the Respondent violated Sec 8(a)(5) conclusions2 and to adopt the recommended Order as modified 3 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re spondent Contemporary Guidance Services Inc New York New York its officers agents succes sors and assigns shall take the action set forth in the Order as modified 1 Insert the following as paragraph 2(c) and re letter the subsequent paragraphs (c) Remove from its files any reference to the unlawful discharges of Dolores Beckham and Kevin Mulvey and notify them in writing that this has been done and that evidence of the unlawful discharges will not be used as a basis for future personnel actions against them 2 Substitute the attached notice for that of the administrative law judge 9 We deny the Respondents motion to stay this proceeding as lacking in ment The judges citation to New Horizons for the Retarded is correct ed to read 283 NLRB 1 173 (1987) 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 ordered us to post and abide by this notice WE WILL NOT refuse to recognize and bargain collectively with Local 868 International Brother hood of Teamsters Chauffeurs Warehousemen and Helpers of America AFL-CIO and its designated agents as the exclusive representative of the em ployees in the following appropriate unit with re spect to wages rates of pay hours of employment and other terms and conditions of employment All counselors housekeeping and maintenance employees employed at the Chelsea, Yorkville and Berry residence facilities WE WILL NOT discharge or otherwise discnmi nate against employees in regard to their hire, tenure of employment or other terms and condi tions of employment because they have become members of or engaged in activities on behalf of the above mentioned Union WE WILL NOT promulgate maintain and enforce a rule banning any union business discussions or 291 NLRB No 9 CONTEMPORARY GUIDANCE SERVICES 51 solicitations during working hours or on our prem ises and WE WILL NOT interrogate our employees concerning their membership in and activities on behalf of the above mentioned Union WE WILL NOT in any like or related manner interfere with restrain or coerce you in the exer case of the rights guaranteed you by Section 7 of the At WE WILL, on request, bargain collectively with the above named Union and its designated agents as the exclusive representative of our employees in the appropriate unit with respect to wages rates of pay hours of employment and other terms and conditions of employment and if an understanding is reached embody same in a written signed agree ment 'WE WILL offer Dolores Beckham and Kevin Mulvey immediate and full reinstatement to their former jobs or if those jobs no longer exist to sub stantially equivalent positions without prejudice to their seniority or any other rights or privileges pre viously enjoyed and WE WILL make them whole for any loss of earnings and other benefits resulting from their discharge less any net interim earnings plus interest WE WILL remove from our files any reference to the unlawful discharges of Dolores Beckham and Kevin Mulvey, and notify them in writing that this has been done and that evidence of the unlawful discharges will not be used as a basis for future personnel actions against them CONTEMPORARY GUIDANCE SERV ICES INC Judy Minette Sandlers Esq for the General Counsel Bradley B Davis Esq of New York New York for the Respondent John Burke Jr President of New York New York for the Charging Union DECISION STATEMENT OF THE CASE ROBERT T SNYDER Administrative Law Judge This proceeding was tried at New York New York on 20 28 29 and 30 January and 2 and 3 February 1987 The consolidated complaint which issued on 30 December 1986 alleges that Contemporary Guidance Services Inc (CGS or Respondent) reneged on an agreement to rec ognize and bargain with Local 868 International Broth erhood of Teamsters Chauffeurs Warehousemen and Helpers of America AFL-CIO (Local 868 or the Union)' as the exclusive collective bargaining representa i Effective 1 November 1987 the International Brotherhood of Team stern Chauffeurs Warehousemen and Helpers of America affiliated with the AFL-CIO Accordingly the name of the Charging Party Union has been modified to show this affiliation tive of its employees in an appropriate unit following the Union s demonstration of majority status in the unit as the result of an agreed on third party card check and thereby withdrawn its recognition and failed and refused to bargain with the Union in violation of Section 8(a)(5) and (1) of the Act The complains, also alleges that Re spondent promulgated and maintained an unlawful rule bannmg any solicitation during working hours on Re spondent s premises and by a named agent interrogated its employees concerning their union membership and ac tivities in violation of Section 8(a)(1) of the Act Finally the complaint alleges that Respondent issued written warnings to and subsequently discharged an employee Charging Party Kevin Mulvey and discharged another employee Charging Party Dolores Beckham both in violation of Section 8(a)(3) and (1) of the Act Respond ent denied the material and conclusionary allegations of the complaint and interposed various affirmative de fenses which it asserted both in its written answer and by way of amendments made orally during the course of the hearing which will be discussed as warranted during the course of this decision All parties were given full opportunity to participate 2 to introduce relevant evidence 3 to examine and cross ex amine witnesses to argue orally and to file briefs The General Counsel and Respondent each filed posttrial briefs that have been carefully considered On the entire record in the case including my observation of the wit nesses and their demeanor I make the following FINDINGS OF FACT I JURISDICTION AND LABOR ORGANIZATION STATUS CGS is a not for profit corporation organized under the laws of the State of New York with its principal place of business located at 500 Eighth Avenue New York New York where at all times material it has been engaged in providing services to developmentally dis abled adults Respondent stipulated that annually in the z At the outset of the first full hearing day Respondent counsel sought leave to allow numerous members of Respondents staff who were present to speak out of turn on the record without having any idea what any of them would say Counsel had informed his client that anyone who wished could come down to the hearing and state his position (on union representation) because each one of them was going to be affected The General Counsel opposed this request I denied such leave noting that the hearing would be conducted in an orderly fashion with the Government having the burden of proof on the complaint first going forward with its own witnesses after which Respondent could call any of the employees in the presentation of its case I added the caveat that if the evidence sought to be adduced was not relevant to the proceeding I might not hear it and counsel might be required to make an offer of proof to permit me to rule before placing it on the record 8 Respondent attached to its posttrial brief Appendixes 1 through 4 comprising separate documents relating to CGS and CGS Employees Association Appendixes 1 2 and 3 are all dated subsequent to the close of hearing Appendix 4 is already in evidence as G C Exh 7 Respondent has not moved to reopen the record to receive these docu ments as additional exhibits Neither did Respondent serve a copy of its brief on the Charging Union that entered a separate appearance on the record (Tr 93) Thus Respondent s inclusion of this materal and com ment thereon in its brief without notice to the other parties or any oppor tunity for them to be heard on whether it should be included in the record is improper Appendixes I through 3 will be disregarded in my review of the record and preparation of this decision 52 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD course and conduct of providing these services it derives gross revenues in excess of $1 million and gross revenues in excess of $50 000 from the State of New York Re spondent further stipulated that in the calendar year 1986 Cosco Enterprises which is located on Skillman Avenue in the Borough of Brooklyn city and State of New York supplied various cleaning and household goods to CGS of which such goods and materials valued in the amount of $2030 were in turn purchased directly by Cosco Enterprises from a supplier located in the State of New Jersey Based on these facts Respondent denies that it is an employer engaged in interstate commerce within the meaning of Section 2(2) (6) and (7) of the Act Re spondent asserts that as a nonprofit agency housing and educating mentally retarded people it is not a commer cial operation and not within interstate commerce Re spondent s position is not well taken The Supreme Court has noted that Congress vested in the Board the fullest jurisdictional reach constitutionally permissible under the Commerce Clause NLRB v Reli ante Fuel Oil Corp 371 U S 224 226 (1963) Transac tions may also be commerce though insignificant or non commercial See NLRB v National Survey Service 361 F 2d 199 203-204 (7th Cir 1966) The Board within the exercise of its administrative discretion under the Act s broad statutory mandate has for some time asserted ju nsdiction over charitable nonprofit institutions In doing so it has not created a separate jurisdictional category for these institutes but rather classifies them according to their fundamental purposes St Aloysius Home 224 NLRB 1344 (1976) Respondents programs are educa tional and vocational rather than medical in nature4 and are designed to prepare many clients for self sufficient living Thus Respondent is not a health care institution under the Act Abilities & Goodwill 226 NLRB 1224 1225 (1976) The nature of Respondents activities as a service in stitution makes it appropriate that the Board s nonretail jurisdictional standard be applied to its operations See e g Southeast Work Training Center 251 NLRB 487 488 (1980) enfd 666 F 2d 428 (9th Cir 1982) Volunteers of America 272 NLRB 173 (1984) particularly because the amount of the sales to the public from the operation of its minimall store has not been included in the record see Abilities & Goodwill cited supra Because of Respondents receipt of proceeds in excess of $50 000 from the State of New York in the course and conduct of providing its services it has met the Board s indirect outflow standard Electrical Workers IBEW Local 46 273 NLRB 1357 1358 (1985) Southern Alleghenies Disposal Services 256 NLRB 852 (1981) Respondent s re ceipt of all of its revenues from the State of New York as claimed by Respondent does not make it an exempt political subdivision under Section 2(2) of the Act be cause it was not created directly by the State nor is it administered by individuals who are responsible to public officials or to the general electorate see Assn for the De 4A staff nurse oversees the administration of drugs but there is no physician on staff or under contract and any serious medical care or treatment is provided through patient hospital care velopmentally Disabled 231 NLRB 784 (1977) Neither is there any evidence that the State of New York exercise any control over Respondents labor relations policies Hispanic Federation for Development 284 NLRB 500 (1987) In any event as a social service organization other than those for which there exist standards specifi cally applicable to the type of activity in which they are engaged Respondents annual gross revenues in excess of $250 000 meets the gross volume of business standard es tablished in Hispanic Federation for Development cited supra and the more than $2000 it made in purchases in directly from outside the State of New York has more than a de minimis affect on interstate commerce NLRB v Suburban Lumber Co 121 F 2d 829 (3d Cir 1941) 1 therefore conclude that Respondent is an employer en gaged in commerce within the meaning of Section 2(2) (6) and (7) of the Act Respondent in its answer also denies knowledge or in formation sufficient to form a belief as to the complaint allegations that the Union is a labor organization within the meaning of Section 2(5) of the Act John Burke Jr president of Local 868 for the past 12 years testified that he negotiates contracts services contracts including sub mitting matters to arbitration and organizes employees on behalf of the Union The bulk of his testimony dealt with the Unions efforts to represent Respondents em ployees in collective bargaining with CGS Respondent filed a petition in Case 2-RM-1969 acknowledging that Local 868 as a labor organization had presented a claim to it to be recognized as the representative of its employ ees Based on the foregoing I find that the Union is a labor organization within the meaning of Section 2(5) of the Act II THE ALLEGED UNFAIR LABOR PRACTICES A The Organization Operation and Staffing of Respondent CGS is a not for profit corporation chartered by the State of New York in 1974 for the purposes of servicing developmentally disabled adults It is administered by a volunteer nonpaid board of directors who are elected by the Corporations members CGS operates a number of different programs out of various locations within the city of New York all but one situated in the Borough of Manhattan The executive staff including the executive director Pearl Coffee her assistants an accounting manager and director of management and fiscal services and their sup port staff of bookkeepers clericals and receptionists op erate out of Respondents main office located at 500 Eighth Avenue CGS has various programs One a vo cational rehabilitation program also located at 500 Eighth Avenue evaluates and then trains individuals in various primary job skills Training in such skills as office work and mailroom chores is provided at a second day program a sheltered workshop located at 229 W 28th Street CGS clients receive remuneration for per forming mailing tasks there for firms under contract with Respondent A third day program is a retail store called the minimall located at 87th Street at Second Avenue CONTEMPORARY GUIDANCE SERVICES where clients receive training in retail merchandising and culinary skills The aim of these programs is ultimate placement of clients in competitive outside employment CGS also has a program of urban residences where staff provide 24 hour services One consists of eight apartments in a building located at 193 Ninth Avenue in the Chelsea neighborhood described as Chelsea I It is for higher functioning clients where they learn independ ent living skills A second is located at 89th Street be tween York and First Avenue in the Yorkville neighbor hood described as the Yorkville residence It is an inter mediate care facility for nine lower functioning clients A third residence and the only facility located outside the Borough of Manhattan is located on 11th Street in Long Island City the Borough of Queens described as the Berry residence It houses 12 clients who have a dual di agnosis Although generally higher functioning they also have emotional problems A fourth residential program described as Chelsea II consists of a series of 15 apart ments located in the Chelsea neighborhood in different apartment houses near the Chelsea I residence where cli ents who have achieved a certain level of independence beyond that of clients housed in Chelsea I are provided support in a semi independent environment Some of the Chelsea I and II and Berry clients participate in the vo cational training and sheltered workshops In addition to the central management and clerical group also located at 500 Eighth Avenue are a head evaluator and two assistant evaluators psychologist vo cational rehabilitation counselor and remediation special ist all other than trainees with bachelors degrees hold ing masters degrees and including some Ph D candi dates The main office also has two maintenance persons one who is retarded and in all likelihood a client and the other who is not retarded Employed at the sheltered workshop are a staff including a supervisor a rehabilita tion counselor with a master s degree and four other counselors who do not necessarily have college or ad vanced degrees At the minimall are a social worker and teachers all at the masters level Certain other professionals perform services on a con tract basis including a speech therapist at 500 Eighth Avenue and a nutritionist who performs services at the three residences There is also a staff nurse who services the clients at the three residences but whose office is lo cated at 500 Eighth Avenue Each of the three residences employs a staff Some of the staff for Chelsea I also are responsible for servicing the clients housed in the apartments comprising Chelsea II Each residence is headed by a residence manager Di rectly under the manager also in a supervisory capacity are an assistant manager and clinical coordinator The managers along with the coordinators are responsible for the physical plant clinical and staff issues such as ap proving vacation time time off from work and supervis ing observing and evaluating staff The assistant manag ers act as managers in their absence and on weekends when managers are only present sporadically Under them is a direct care staff comprising counselors includ ing a recreation counselor During the relevant period Respondent had a policy of requiring a minimum of an associate degree (2 years college) plus some experience 53 in either residential work or in retardation for these posi tions although as will be seen in the case of Kevin Mulvey this policy was not followed in practice Some of the counselors have either bachelors or masters de grees and have taught classes in special education for the handicapped or disabled in school systems In addition to counselors each residence also employs a cook an escort housekeeper and a maintenance person The counselors work shifts around the clock on week days or weekends They perform vaned duties all direct ed to aiding the clients in learning and improving life skills under the supervision of the manager and coordina tor They help maintain the physical plant and the cli ents apartments cleaning cooking and washing laun dry They interact with the clients daily evaluating their needs assessing their skill attainments disciplining them when necessary and taking them to hospitals for treat ment and on recreation outings They are also advised by a team consisting of a psychologist and a social worker on the attainment of client goals of moving to a next higher level of functioning or residence and ultimately achieving independence The counselors including recreation counselor are paid similar wages receive similar benefits and work the same daily or weekend shifts at the three residences They interact daily with the housekeeper cook and maintenance employee assigned to their residence and their functions particularly in relation to the cook and housekeeper regularly overlap There is evidence that counselors at the different residences particularly Chel sea I and Berry have periodic work contacts at staff meetings on joint client outings when clients are trans ferred between these residences as occurs from time to time on joint parties and as a result of relations between clients in difference residences Staff at Berry use a sta tion wagon assigned to Yorkville and Berry and Chelsea I staff share a van assigned to Berry Although clients housed at Yorkville are the lowest functioning a Berry client accompanied them on a trip and the interaction de scribed does include Yorkville although not as frequently as between Berry and Chelsea I Counselors have also shifted between residences during periods of critical shortages in staff and when the Berry residence closed because of a boiler problem in 1983 or 1984 and clients were housed at Chelsea I and Yorkville Counselors also have interchanges and contact on annual training to re ceive recertification in administration of certain drugs and handling of first aid on medical emergencies Counselors generally have little or no contact with the sheltered workshop and minimall and only occasionally with the central office when personnel problems apse or periodic meetings are held Supervisors have transferred permanently between residences as the need arises B The Union Campaign Third Party Card Checlc, and its Results Kevin Mulvey was hired by Respondent on 12 De cember 1985 to work at Chelsea I residence as recreation counselor on weekends and Wednesdays In early Janu ary 1986 Mulvey contacted John Burke Jr president of Local 868 to seek union organization of the residences 54 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Burke gave Mulvey authorization cards and union liters Lure for distribution to other employees Burke distribut ed cards and solicited signatures at Chelsea and also dis tributed them to contacts and individually at the other residences receiving back signed cards that he forward ed to Burke By certified letter dated 26 March 1986 5 and received on 27 March Burke on behalf of Local 868 advised Coffee executive director of CGS that the Union which represents a majority of the employees employed as counselors and housekeeping and maintenance person nel at the three residences was prepared to submit evi dence to support this claim and requested an early ap pointment to negotiate a collective bargaining agreement to represent these employees On either 26 or 27 March Burke telephoned Coffee told her he represented a majority of the employees working at the three residences and that he had filed a petition with the National Labor Relations Board and would like to sit down to negotiate a contract Coffee advised him to contact her attorney Bradley Davis and gave him Davis telephone number On 28 March the Union filed a petition for certifica tion of representative in Case 2-RC-20139 seeking a unit of all counselors and housekeeping and maintenance per sonnel employed by CGS excluding all office clerical employees guards and supervisors as defined in the Act Burke telephoned Davis and arranged to meet in Davis office The meeting was held within a few days at the end of March or in early April Burke explained he began by informing Davis that he represented the three residences and would like to enter into a labor contract with the agency Davis said that if he did in fact repre sent the employees he would have no problem He would negotiate a contract with Burke Burke testified that they then discussed how they could resolve the issue of representation Davis agreed that Burke did not need to keep the petition in the Board that they could go to a third party Burke then recommended Father Carey to conduct a third party card check It was agreed the unit would be the counselors and maintenance and house keeping employees working in the three residences It was further agreed that the list of employees to be used for purposes of the check would be those employed as of 26 March the date of the Union s demand letter Burke also agreed with the Union that he would pay for the card check As to using Father Carey Davis said he did not know he would talk to the board of directors and get back to Burke Following this meeting Burke sent a letter dated 3 April to Region 2 requesting the withdrawal of the Union s petition because the Company had indicated it would agree to an impartial card check and if Local 868 represented the majority of the employees the Union would be recognized Burke did not forward a copy to Davis By order dated 8 April the Regional Director 5 All subsequent dates listed will be in the year 1986 unless otherwise indicated canceled the hearing and approved withdrawal of the pe tition 6 In subsequent discussions by telephone with Burke Davis rejected Father Carey and later suggested the name of an attorney Mathew J Shebar with offices then located at 82 Wall Street New York New York Burke who did not know the man agreed to Shebar Burke then called Shebar and agreed to mail him the original designation cards signed by employees at the three residences Burke forwarded the cards to him by express mail Shebar subsequently informed Burke that he was going to check the signatures and go to the three locations and to verify if in fact Local 868 did represent the employees Meanwhile following clarifying phone calls between Burke and Davis Davis directed Coffee to prepare a list for Shebar of regular full time employees and part time employees who work 20 or more hours 2 days a week at the three residences As a result of fur ther inquiry he had made Davis also directed that the names of all others employed at the residences including supervisors who were not responsible for hiring and firing be forwarded to Shebar A few days later during April Shebar informed Davis that he had received a staff list and a method of verify ing signatures Davis confirmed he had told Coffee to supply signatures of all employees at the residences By letter dated 29 April 1986 addressed to Burke Shebar first noted his inclusion of a copy of his third party determination report supplied to Davis in which he concluded that Burke s local had been authorized to bar gain for a majority of Contemporary s employees In the next paragraph Shebar congratulated Burke and particu larly Kevin Mulvey for what appeared to be a thorough and well executed organizational effort In the third paragraph Shebar listed his fee for services rendered in the course of the inquiry as $850 and disbursements as $27 for a total of $877 Burke paid this amount Davis acknowledged on the record having received a copy of this letter (Tr 113) In one of the many reversals of his testimony Davis later denied while undergoing exams nation as a witness that he received a copy of this cover letter from Shebar (Tr 691 ) The report then provided a breakdown of the review in the three residences At Chelsea of a list of 11 full time and 4 part time employees provided by manage ment 8 full time and 4 part time employees (a total of 12 employees) had authorized the Union to represent them The Union had also submitted cards from three per diem and one full time employee not listed by management At Yorkville of seven full time five part time and three professional employees provided by management one full time four part time and one professional employee (a total of six employees) authorized the Union to repre sent them The Union also submitted the signed card of one part time employee not listed by management At Berry of a list of 8 full time 7 part time and 3 profes sional employees submitted by management 5 full time 6 part time and 1 professional (a total of 12 employees) 6 The order received in evidence did not include a service sheet The Board s Casehandling Manual (October 1975) provides in Sec 11110 that if the withdrawal request is approved the parties should be notified CONTEMPORARY GUIDANCE SERVICES authorized the Union to represent them The Union also submitted a signed card from one part time employee not listed by management Based on these figures Shebar concluded that 30 of the 49 employees listed by management had authorized the Union to bargain for them He also noted that these results would have been more favorable to the Union if he had included any of the six employees whose status was in discrepancy or if he had excluded any of the pro fessional employees whom the Union argued were out side of the bargaining unit Within a day or so Burke was on the phone to Davis He asked if Davis had received the certification When Davis indicated he had Burke sought an appointment to negotiate a contract and a date was set Early in May Burke accompanied by Mulvey arrived at Davis office Mulvey remained in a waiting room and Burke went into Davis office Davis said [W]ell now we can go for an election for the whole unit Burke taken aback re sponded that was not the agreement The agreement was for the three locations Davis said No now we can go for an election for the whole unit Burke then replied that they had not even attempted to organize the other units They were discussing the three residences Mulvey waiting in an outside area testified that he heard shouting and screaming through the adjoining wall Burke and Davis shortly emerged from the meeting after only about 5 minutes and Burke and Mulvey imme diately left Burke exclaimed to Mulvey that they had been stabbed in the back When Mulvey suggested trying to organize the three other facilities Burke told him to go ahead Davis testimony recounting his first meeting with Burke is completely at variance with Burke s version Davis at first agreed with Burke that they met between 1 and 3 April He later changed this testimony to claim the meeting took place on 9 April based on a single entry of only Burke s name in his office diary for that day Davis clung to this version even when shown Burke s 3 April request to withdraw the Union s petition because of an agreement to a card check and even after having his at tention directed to his two 4 April letters one to Region 2 noting the Teamsters withdrawal of request for an in formal conference on its petition pending resolution of the issue without need for your intervention and the other to Burke confirming the Union s understanding of Shebar s role in examining alleged union members (Tr 898-900) In the interim before their meeting Davis acknowl edged he had learned of the Union s petition from Coffee but denied that Coffee had made him aware of Burke s 26 March demand letter on or shortly after she received it on 27 March When questioned about his knowledge of the Unions majority claim set forth in that letter Davis became quite evasive and only on the third or fourth attempt to elicit a direct answer did he deny such knowledge before his first meeting with Burke Nonethe less the RC petition that Davis admitted receiving early also specifies that the Union requested recognition as bargaining representative on 26 March Coffee testified that if I got [the Union s March 26 demand letter] it was immediately sent to Mr Davis I 55 did nothing with the Union without Mr Davis authority I probably read it and sent it to him (Tr 935 ) It seems clear that Coffee immediately made Davis aware of the contents of the demand letter and the peti tion This conflict between Davis and Coffee must be re solved against Davis whose evasiveness on this point is only one example of a generally unconvincing presenta tion as a witness His testimony undertaken by himself as counsel in question and answer form is at times ram bling at other times unresponsive and still on other oc casions deliberately calculated to avoid the legal conse quences of his own actions and conduct as party to the agreement with the Union pursuant to which recognition in the three residence unit was conditioned on a success ful majority showing on the impartial third party card check It is however Davis recounting of the substance of his initial meeting with Burke that reveals the incredible nature of his testimony particularly where it conflicts with Burke on the elements of the Governments claim of a reneging on a conditional agreement to recognize and bargain with the Union According to Davis after an initial greeting Burke informed him that there had been a blitz drive and on 26 March they got signatures and they now had enough signatures for there to be an election at the agency They filed for an election Davis asked Burke what he meant by that and Burke respond ed that if you get 30 percent of the signatures that you have a right to an election and he also told Davis that if you get the majority of the agency then you have a right to have a union without an election but that he didn t have a majority yet but he was still getting cards signed and he thought he d get a majority Davis continued he then asked who signed and Burke annoyed said You don t expect me to tell you that Davis continued I can t imagine why and Burke said Try to figure it out but it s nothing we ever disclose Davis then asked how was he possibly going to know whether the Union had 30 percent or any percent Burke said [T]he way it works is you re supposed to pick a third party and they review the papers and they decide whether or not there s 30 percent Davis asked if that is what happens at the conference9 Burke said Not at the conference but the person at the conference will tell you the same thing There s going to have to be a count Davis then said that confirmed what he had been told by the Board agent and asked how did they go about it Burke then mentioned a labor priest Father Carey a very well known person who would be willing to do this Davis said that he did not know anything about the man but he would make some inquiry but whatever they did there could be a count Before Burke left he said he was happy with the Teamsters They parted very friendly As Davis 4 April letter to Burke makes clear Davis had also agreed that the cost of the check would be paid by the Union It is unconceivable that an experienced labor repre sentative and negotiator such as Burke would enter an agreement with the Employer for the Union to pay for an impartial third party check to determine whether the Union had a 30 percent showing of interest in three em 56 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ployer locations as a condition for holding a representa tion election among employees at all six employer loca bons (This is the version Davis seeks to have credited ) Burke was well aware that the RC petition then pending would include a preliminary investigation of the Union s showing of interest in the unit sought before further processing to either an agreed on election or a hearing to resolve outstanding issues That investigation is conduct ed without cost to the Petitioner The fact alone that Burke undertook to underwrite a cost that he knew would exceed $600 pursuant to the understanding for a third party check destroys any credibility to Davis ac count that Burke would pay that sum to satisfy a 30 per cent showing of interest rather than a majonty showing leading to recognition and bargaining Burke acted on his clear understanding of the results of their early Apnl meeting when he wrote the Region requesting withdraw al of the Union s petition because of an agreement to have the Union s majority claim verified outside the Board Indeed Davis recognized the same agreement when he informed the Region in his 4 April letter that he agreed in effect to holding the petition in abeyance pending resolution of the issues without need for your intervention What under Davis interpretation would be the result if as happened the Union not only satisfied the 30 percent count but also a more than 50 percent standard? Under Davis account that was not dealt with but it would normally have been foreseen as a possible result Furthermore why would Davis admittedly agree to a showing of interest in only a portion of the unit that he argues elsewhere is the only appropriate one? Clearly Davis version makes no sense and is inconsistent both with Burke s rational straightforward recital and the ex pectations of the Union and the logic of the circum stances Davis is discredited and Burke s version of the meeting is accepted as representing accurately the Union s majority demand the Company s response and the agreement reached for an impartial third party check to determine the Union s majority status in a unit limited to counselors housekeepers and maintenance personnel employed at the three residences Davis version of their second meeting more nearly ap proaches the truth Davis places the meeting on 8 May not significantly later than Burke s recollection of early May Davis places Mulvey in the adjoining room while he and Burke met After initial greetings Davis said he had read the report and he guessed Burke had also and had discussed it with the director and although there were obvious things that could be disputed the board of directors felt that there was no reason to create further antagonism in the agency There obviously were a number of people who are interested in a union but whether it was 30 percent was something they could fight about forever but they had agreed that there would be an election at the agency and the staff could decide what it wanted to do It took a little convincing on his part but the board of directors was going along with it and they might have had different views about unions but good luck to you you ve won At this Burke s mood totally changed he became absolutely furious hailed a barrage of epithets saying don t try to pull tricks on me we know what your trying to do I wasn t born yesterday The Teamsters have a lot of power don t be certain if you play it this way your going to have an agency any more and referred to people they knew in New York State government and stormed out of Davis office Davis did not state that the election would be held among all the agency s employees and I credit Burke s inclusion of this comment in his recital Basically how ever Davis agreed with Burke that even before Burke could make any opening statements relating to negotia tions or implementing the agreement Davis immediately spoke about the card check having now satisfied a pre luminary condition for holding an election and not bar gaining Following this meeting Burke and Davis never met alone again although there were subsequent telephone calls between them relating to an RM petition filed by Respondents seeking to achieve an election among all employees and clients employed at the sheltered work shop consistent with Davis fictitious claim of the agree ment the parties had achieved following Shebar s exams nation Respondent has continued to maintain that no agreement to recognize and bargain with Local 868 in the unit limited to the three residences was ever entered conditional on the Union s demonstrating its majority status among these employees Other CGS defenses to the refusal to bargain allegation will be discussed in the analysis portion of this decision C Respondents Conduct Directed Toward Employee Dolores Beckham and Enforcement of the No Solicitation Rule Dolores Beckham was employed as a weekend coup selor at the Berry residence from 28 July 1981 until her discharge on 15 October 1986 She was the most senior employee at the Berry residence at the time of her dis charge At the end of February 1986 Mulvey visited Berry and discussed forming a union with Beckham and other employees Beckham readily agreed to solicit member ship and pass out union literature Later the same day she conducted a meeting among employees at Berry to discuss the Union and handed out authorization cards During the following week she contacted the Berry weekday employees to seek their union support and prior to monthly staff meetings handed out cards and booklets to them and explained the benefits of the Union Beckham received back nine signed cards from Berry employees that she turned over to Mulvey Beckham was elected temporary shop steward by the weekday staff to represent them until they could have formal elec tions She was also elected to represent the Berry group at a meeting held at union headquarters on 2 May The 2 May meeting was attended by Burke Mulvey Beckham and an employee representative from Chelsea Burke asked the attendees to find out from the staff members at their residences what they wanted to negoti ate in their contract and report this information to him by the following Thursday 8 May (the date of his sched uled meeting with Davis) Burke also distributed union buttons to provide to the staff The following day Satur CONTEMPORARY GUIDANCE SERVICES 57 day 3 May Beckham walked into the residence wearing several buttons and handed out buttons to the other staff members also working that day Beckham also wrote a message in the daily logbook as follows ALL STAFF May 3 1986 I am pleased to announce that we are now members of the Teamsters Union Local 868 On Tuesday 6 P M there will be a Union meeting at Berry to dis cuss the staff's interests and concerns in the final union agreement Temporarily I have been appoint ed shop steward D Beckham P S I have attended the 1st Meeting Friday May 2 1986 Attending were the 2 shop stewards from Chelsea & Yorkville Kevin Mulvey and the Union lawyer There will be a meeting on Thursday with the Union lawyer and CGS s lawyer Therefore its important for you to let us know what you would like included in the contract by attending the meet ing on Tuesday calling me at home (evenings up to 1 or 2 AM) or putting your suggestions in the sug gestion Box (Staff Office) ATTENTION ALL STAFF May 3 1986 ANY DISCIPLINARY ACTION- WILL BE CONDUCTED VIS A VIS THE TEAMSTERS UNION LOCAL 868 As the Teamsters Union is fully aware Contem porary Guidance Services has not made a determi nation whether or not that union is entitled to rec ognition Unless our Board of Directors voluntarily decides to recognize the union such a determine tion will have to be made by the N L R. B There fore unless and until you are advised otherwise in writing by either our Executive Director or the N L R B you do not have to attend any union meeting or other activity You may nevertheless do so if you wish provided it does not interfere with your job functions or responsibilities N L R B stands for National Labor Relations Board Executive Director Coffee explained the genesis of this memorandum and Gooden s notice in a letter to a Board investigative agent dated 26 November Ms Beckham s entry regarding a union meeting was on Saturday May 3rd Upon the advisement of our attorney Mr Davis I sent a memo to all resi dences that there was to be no union business car ned on during working hours or on the residence premises Upon the receipt of this memo the Residence Manager entered a statement in the log that there will be no meeting and she clipped my notice to the page There was no further reference to this entered in the log All other entries pertain to general Resi dence business * If you have any need for representation in a union matter please call Dolores Beckham (718) 426-8761 (evenings) acting Shop Steward at Berry OR Kevin Mulvey (overall Shop Steward) call Chelsea or his home # 1 (212) 777-8034 The logbook is a book of blank looseleaf pages kept in the staff office that is used to communicate with working staff and administrative staff It generally contains mes sages that report information regarding events condi tions and health status of clients on a particular work shift for staff and administration who work different shifts On 3 May Beckham also constructed a suggestion box out of cardboard and placed it on a windowsill in the staff office She had written on it union suggestion box A subsequent message appearing in the logbook dated 5 May 1986 and written and signed by Carolyn (Gooden) the Berry residence manager reads There will be no union meeting on tues night at the residence Contact me for details if needed On the following Saturday 10 May when Beckham reported for work she also saw the following typed memorandum on CGS letterheard stapled in the logbook for the information of the staff May 5 1986 Memo To All Staff or Urban Residences From Mr Brad B Davis Attorney for Urban Rest dences Coffee confirmed that the memo to which she referred in this 26 November letter was Attorney Davis 5 May memo to all staff of urban residences According to Beckham on the morning of 10 May Floyd Black then Berry s assistant manager 7 told her when she walked in there was a message in the logbook concerning union activities from the main office and also a message from Carolyn Gooden Black added that Gooden was very upset about the Union and union ac tivities and that we could not meet on the premises that the Union was not recognized It was then that Beckham read the messages in the logbook That weekend she also noticed that the suggestion box had been opened and dis mantled with one message left by an employee folded open Beckham also testified that Black had spoken to her many times about the Union on weekends at Berry He wanted to know at what stage the union activity was did she hear anything about the Union On one occasion Beckham told him they had received a majority of signa tures but then at one point they were stopped because of negotiation between the main office r In its answer to the consolidated complaint Respondent admitted by failing to admit or deny par 5 which alleges that Coffee Black and Charles Kemether at all times material have been agents of Respondent acting on its behalf and have occupied the positions of executive direc tor supervisor and assistant residence manager See also Respondent s admission at Tr 291 58 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Black who testified later for Respondent was not asked about his 10 May conversation with Beckham on his direct examination but when questioned on cross ex amination admitted he told Beckham Carolyn must have been very angry because he had never seen her respond to any union activities before In view of Black s testimo ny and Beckham s generally trustworthy presentation as a witness I credit her account of their conversation Be sides admitting his status as assistant manager at Berry at the time he also admitted questioning Beckham during discussion with her about the Union His curiosity had been aroused by seeing union literature and pins on the weekend and although not approached to join because of his status he learned about the status of the union or ganizing drive at the three residences from his conversa tions with her On Saturday 11 October she and the other counselors on duty had been scheduled to take all the clients to the Special Olympics However because it was discovered about 12 10 p m that the battery for the CGS van had been stolen the plans were changed to rent a videotape and provide refreshments for the Berry clients James Jorge was one of the counselors then on duty who was to remain in the residence until the 1 p in staff shift change while Beckham and others left to get snacks and then on their return was to get the videotape Jorge had then been employed since 12 May 1984 as a weekend counselor On their return to the residence Beckham learned from two members of the weekend staff who had come in at 1 p in that Jorge said he had to leave because of an emergency situation and would get in touch with Manager Gooden Jorge had not punched out Since Gooden had come to the residence in the interim was out inspecting the van and had taken the logbook with her it was unclear whether he had left a note explaining his absence As Jorge was then on probation Beckham and the others had a concern for his continued employment if he had not left a message Beckham sought to protect Jorge by writing a note stating that Jorge had an emergency situation had to leave and would try to come back He signed it James and put it in her pocket for possible use if Gooden pressed them about Jorge s whereabouts Gooden returned to the residence with Paul Challita and his wife Maha CGS manager of fiscal services and accounting manager respectively to whom she then gave a tour of the house and introduced to the staff Beckham then prepared dinner and other foods for the clients while another counselor got the tape During a discussion with one of the afternoon shift counselors who expressed concern about not having informed Gooden of Jorge s absence on her arrival Beckham gave him the note she had written and he with her knowl edge and consent went to Gooden s office and handed it to her Gooden went to the kitchen and asked Beckham what this was and Beckham confirmed that it was the note that James had written About 3 45 p in Jorge returned to the residence told Beckham he had left because of an emergency and was going to speak to Gooden Beckham then told him that they had covered for him and she had written a note ex plaining his leaving Jorge said fine Gooden then invited him into her office After a few minutes she asked Beck ham to come to her office When she arrived she saw Gooden and Jorge there When Gooden again asked about the note Beckham again said it was James emer gency note When Gooden then asked Jorge if he had written it he denied knowledge of the note Beckham then admitted she had written it Gooden said this could be grounds for termination and told Beckham she would talk to her at the end of the day about what she had de cided on the matter At the end of the workday Gooden told Beckham she had not made up her mind she would think about it and have a message in the office tomorrow On Sunday there was a written message in the logbook from Gooden that she would come in that day to speak to Beckham and Jorge but she did not On the next day 13 October a holiday Beckham received a phone call from Gooden to go to the main office to discuss the matter with Coffee and not to show up at the residence until she had On 14 October Beckham made an appointment to see Coffee on 15 October At their meeting alone Coffee held a document said We re here to discuss the inci dent that occurred on Saturday Coffee then said I have it all here a report from Carolyn and therefore you are terminated Beckham asked what was in that report and added even an accused person had a right to hear what was written or said about that person Coffee started to paraphrase what was in the report Beckham said I want to know what is in the report Coffee said What do you mean do you want to read this? Carolyn tells me that this sort of thing of covering for people happens all the time and therefore you re terminated Then referring to Beckham s request Coffee read from the report but she never gave it to Beckham After reading the report Coffee said You helped a crook Beckham then asked Coffee to concentrate on what she did Beckham said I was in the house I was working Coffee said Working how could you be working if you were worrying about James Coffee then repeated no because as far as she was concerned Beckham had helped a crook she was terminated and should not return to the residence and she would be given 2 weeks severance pay Coffee did not offer any testimony about the exit inter view and Beckham s version then stands uncontroverted and is credited Coffee did confirm on her direct exami nation that as a result of Gooden s oral and written report of the incident she promptly decided to discharge Beckham She did not dispute that this decision was made prior to affording Beckham any opportunity to re spond or to review Gooden s report and in spite of the reservations Gooden had expressed in her report and the information she provided in it that punching for another employee was an ongoing but uncorrected problem at Berry Gooden s report of the incident dated 13 October covers four handwritten pages It first summarizes the events of 11 October including Jorge s admissions he had left the building during his shift without leaving a note or calling management and her confronting Beck CONTEMPORARY GUIDANCE SERVICES 59 ham in front of Jorge who denied writing the note She did not include that portion of Beckham s account in which she admitted having written the note and signed Jorge s name Gooden did not testify I find that Beck ham did finally admit this conduct when she saw that Jorge was not prepared to support her initial story Gooden does report that Jorge sought to remind Beck ham in the meeting that he had told her to tell Carolyn that he had an emergency before he left Gooden in her report then states that she informed them that actions would be taken against the matter spe cifically noting James leaving without permission not notifying appropriate authorities no note in the log the open lie about the note and Dolores covering up for a staff member who left without permission It was her view that James was not going to return and Dolores would punch out for him if she had not come in Gooden continued in her report that James has often left work before his shift ends by entering a note in the log or just punching out or calling in sick She notes that Jorge has a written warning and is serving a 3 months probation In her view punching in and out has been an ongoing problem at Berry on the weekends She accuses Beckham among others but admits no proof Gooden then recommends Jorge s termination and states that al though Beckham should be terminated also she questions whether there are sufficient grounds to do so since she has not been counseled before and not a policy of the agency to fire someone if caught misusing the time clock After repeating certain suspicions about Jorge s and Beckham s conduct Gooden concludes that she had given the staff several open warnings about punching in/out for each other at the various staff meetings and that Berry s staff meeting log could confirm her past ex pressions of concern Beckham confirmed that employees covering for each other was an ongoing problem that Gooden had dis cussed in a staff meeting and about which she had left a message in the log In spite of this the practice happened all the time from administrative staff down No one had ever been fired for punching or covering for another and Beckham had never been spoken to or counseled about it Neither had she been given an opportunity to resign in her meeting with Coffee nor ever been told that covering for someone was a dischargeable offense By letter dated 17 October directed to Coffee Jorge explained that due to personal reasons he was resigning his position of weekend counselor effective that day Respondents written personnel policies effective 1 January 1985 do not include covering for another em ployee by punching the timeclock or otherwise among six itemized causes for which an employee may be dis charged without notice or severance pay Any employee may be dismissed for any other reason on 2 weeks notice together with all other accrued benefits It is clear Beckham did not receive such notice Furthermore a memorandum on employee counselings dated 28 January 1983 from a then coordinator of urban residences to resi dence managers and assistant managers still in effect and not superseded provides for a progressive system of verbal counselings followed by written counselings for purposes of correcting employee behavior or providing a plan of corrective action and to provide a firm base for disciplinary action None of this policy was followed in Beckham s case By letter dated 29 October Coffee in reporting to Davis her termination of Beckham on 15 October stated inter alia Ms Beckham though she has been with us for a long time always was a quiet trouble maker Fur ther along in the letter Coffee remarks Regarding the union I never spoke about it to her but the enclosed ex cerpt from the log indicates her position During her examination by the General Counsel as a witness identified with an adverse party pursuant to Rule 611(c) of the Federal Rules of Evidence Coffee ex plained that she learned about Beckham s having written about the Union in the logbook from Carolyn Gooden that the message was something out of the ordinary and that it disturbed her That report to her by Gooden was when she first learned that Beckham was for unioniza tion D Respondents Conduct Directed Toward Employee Keim Mulvey and Enforcement of the No Solicitation Rule Kevin Mulvey was hired by CGS in December 1985 to work as recreation counselor at the Chelsea residence on weekends and Wednesdays After receiving back signed cards that he had distributed in blank individual ly to employees and at the other residences he turned them in to Burke Burke later invited him to accompany him to the 8 May meeting he held with Davis following issuance of Shebar s report of the results of his card check Following this meeting at his own suggestion ap proved by Burke he called each of the facilities other than the residences to determine union support and mailed union literature to at least one Earlier he had called each of the three residences to advise employees the Union needed a representative from each to help with collective bargaining and to give him their names He also attended the union meeting as overall steward for the residences at which Burke spoke to the assembled employee representatives about the need to supply him with bargaining suggestions by 8 May Approximately 8 days after the 8 May meeting be tween Burke and Davis on Friday 16 May about 4 30 p in Coffee telephoned him and asked What is this business about Chelsea? Mulvey declined to discuss the subject with her on the phone and an appointment was made to meet on the following Tuesday 20 May On 20 May Mulvey went to Coffees office Present were Mulvev Coffee and May Wong director of the vocational rehabilitation program Coffee said that on advice of her lawyer she was to tell Mulvey that he was not to unionize on company time and company property and that how he got in touch with other people at other facilities was his problem Coffee added that he was to cease and desist from organizing even and including Chelsea where he worked Coffee then asked if he knew he was doing the wrong thing Mulvey replied yes he knew the Board s rulings for years had been that you were not to organize on company time or property 60 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD After this meeting Mulvey made no further attempt to reach the other facilities In a memorandum prepared by CGS to memorialize this meeting it is reported that The issue is before the NLRB Until the NLRB makes a statement there are to be no discussions during working hours or on any CGS premises People are free to speak privately on their own time In June Mulvey along with Burke attended an infor mal conference held at Region 2 of the Board on RM petition in Case 2-RM-1969 filed by CGS on 23 May claiming a request for recognition by the Union and list ing the unit involved as including all employees In at tendance for CGS were Coffee Attorney Davis May Wong and Paul Challita Mulvey was the only staff em ployee within the proposed bargaining unit who was present Each time Burke asked to meet separately with the Board agent he left the room with Mulvey to confer with the agent After some time Davis asked why does he go out with Mr Mooney [the Board agent]? Shouldn t he more appropriately be over on indicating the side of the room where the CGS representatives were gathered A discussion about Davis objection ensued Finally Mooney said she would be happy to meet with any body who so requested At some point during the conference Coffee asked Burke where Mulvey came from what his background was and then said He came from NCR [the National Cash Register Company where he had worked previous ly] that s not people that s machines Burke replied that Mulvey had good values and he did care for people and that ended the exchange After periodic staff meetings conducted by the rest dence manager the employees would remain to discuss the Union both before and after the card check The managers left but sometimes the assistant and coordina tor remained while the employees discussed union mat ters At one such union meeting held in May after She bar s card check Clinical Coordinator Connie Callabro said she wanted the Teamsters out She repeated that several times She then tried to appoint employees present to get in touch with the other residences to have representatives come and try to get the Teamsters out Callabro repeated this at another staff meeting Callabro did not testify and Mulvey s testimony in this regard is credited Following Shebar s card check in accord with Burke s instructions Mulvey contacted the employees at the rest dences to tell them that the card check had come through the Union had been certified as the bargaining agent and distributed union buttons stickers and the like It was in all probability following such contact that Beckham placed her notice in the Berry logbook on 3 May Mulvey also continued to wear a union button until his discharge on 12 November On Wednesday 5 November Charles Kemether Chel sea s assistant residence manager presented Mulvey with two pieces of paper which he said Floyd the residence manager 8 wanted him to sign Mulvey looked at them 8 By this time Floyd Black previously the assistant residence manager at Berry had been transferred and promoted and told Kemether he could not sign them because they were inaccurate and not specific One paper was a memorandum from Black to Mulvey dated 30 October initialed apparently by Black stating in substance that on 18 October Mulvey had adminis tered medication and failed to follow the agency s proce dure in that the medication was not listed appropriately (by name) the clients were placed on home visit rather than on a trip as they were and the medication given was not signed for at the time it was given In the second paragraph the memorandum noted that Mulvey had shown poor judgment and unprofessional training by his disclosure in a prior discussion of the matter on 22 October that the assistant had given him directions in what to do although the assistant was not certified to in struct in any kind of way In the last paragraph Black recounts that Mulvey was given a verbal counseling on 11 June 1986 on medication procedures and that he was suspended for a day for medication errors Black then advised that these type of errors should not happen again The other paper was a memorandum from Black to Mulvey dated 6 November stating This is a reminder that you failed to report for supervision and reporting the plans for the upcoming recreational events Our past meetings have been immediately after staff meetings and I plan to keep it this way Mulvey reminded Kemether that as to the memoran dum dealing with administering medication Mulvey at the time had discussed with Kemether how to list on the October medication sheet medications that he had given to clients to take with them on a trip to the former rest dence managers home On the sheets there was a desig nation for home visit but he did not recall a designa tion for trip They had discussed whether to list the medications under home visit administrative leave or some other designation Kemether had said he would take the heat for it and not to worry and Mulvey could record the medications under home visit About the other paper Mulvey explained to Kemether that the mi tial agreement he and Floyd Black had when Floyd had first come to the residence was they would meet after the staff meeting But they had since discussed that it would not be convenient because of so many other ties and pulls on a managers time and they had than agreed that Black would call Mulvey when he was ready That had been the arrangement with the prior manager and on Mulvey s suggestion Floyd had agreed Later in the afternoon of 5 November Mulvey was called to another meeting It was held in Black s office with Black Callabro and Kemether present Mulvey was handed a third sheet This was a memorandum from Black to Mulvey dated 5 November dealing with Mul vey s having worked unauthorized hours Black notes it had been brought to his attention that Mulvey had worked far beyond his scheduled hours on Wednesday 29 October 1986 his card was punched out at 11 p in Black states he did not authorize Mulvey to work beyond 8 p in and he should not do so unless approved by him The memorandum then notes that Mulvey s schedule on Wednesday is from 2 30 until 8 p in (now CONTEMPORARY GUIDANCE SERVICES 61 that the staff meeting will be at 2 30 instead of 3 30 p m) Black concludes by emphasizing again Mulvey would not be paid for extra time not approved by him and warns that working without authorization would result in strong disciplinary action They discussed each memorandum individually Mulvey insisted he had not worked unauthorized hours He had an arrangement with Kemether to work 3 to l lp in due to short staffing It had been his custom for several months to work those hours evidenced by his paystubs and he had never been told his starting time had been changed by 1 hour When Black replied that Mulvey should know his schedule they looked on the next dated schedule posted on the wall and through files and could not locate any that would have provided Mulvey with notice of the changes Mulvey again said he would not sign the memorandum relating to medication errors because it was not accurate it did not include dates and times of his alleged errors Mulvey also repeated that he and Kemether had dis cussed that he would use a home visit designation and he did not remember a trip designation on the October charts At this point in the meeting Kemether said he had told Mulvey he would take the heat for him for using the home visit designation Also discussed was the fact that 3 weeks earlier during a supervisory meet ing Floyd had told him to correct any medication errors on the medication sheets Mulvey said he had since made the corrections on he sheets after receiving help in fill ing them out from a more senior primary (full time) counselor Jacques Laroche Mulvey noted at the hear ing that only very occasionally did he supply medication to clients and then only for them to take on trips so he was not present when they took it Concerning Black s memo about Mulvey s failure to report for supervision timely Mulvey reminded Black that although Wednesday was their day to meet it had been his, understanding from previous discussions that Black would, call him when he was ready that Black would structure the time and that Mulvey would be at his convenifpce Accor`d^mg to Mulvey whose testimony as to this meeting was not contradicted by Black who did not refer at all to this particular written counseling Black did not respond to Mulvey s explanation but only repeated that Mulvey had missed the supervisory meet ing Mulvey continued to `refuse to sign the three docu ments Black then told him that if he did not sign them he did not need Mulvey there that day Mulvey punched out and then asked Black about his status Black said he would call him before the weekend about his status The following day 6 November Muivey returned to the Chelsea residence and asked Black in Kemether s presence to clarify his status Black said he was not fired that he had not needed Mulvey the prior day He would let Mulvey know before the weekend that he did not know which way he wanted to go and the papers had been sent to the main office On 7 November Mulvey again returned to the residence went to Ke mether who left to speak to Black returned and told Mulvey to leave and report for work at 10 a in Satur day the next day i When Mulvey reported for work on 8 November he went to Blacks office where he found Black and Ke mether Black again asked Mulvey to sign the papers Mulvey thanked him for the opportunity but said he was unable to do so Black then told Mulvey he was to meet Coffee the following Monday at her office When Mulvey asked if he could stay and participate in an exer cise program run by a volunteer that day for the clients Black told him he could not he was not working that day and could not stay Mulvey punched out and left On Monday 10 November Mulvey met Coffee in her office Paul Challita also attended Later Black came in The meeting went on for several hours The first topic discussed was the arrangement for supervisory meetings Mulvey explained it had been operative under the man ager that he would meet when she called Challita said Well its a new regime Lets start over start over new When the topic changed to the unauthorized hours Mulvey explained that for the previous months he had worked basically per diem he had worked a lot of time and there was never any question that he could not work past 8 p in because as far as he knew they were short staffed He was never told to go home During the month of one pay period he had 101 1/2 hours paid and no question was ever made of that Again Challita re marked We paid it That s water under the bridge Let s get on to new business On the subject of medication entries Mulvey said that after he had corrected any errors on the charts as of 20 October at Floyd s direction he had talked to the nurse he believed on 29 October and she had said as far as she was concerned the medication in reference to him was correct and in order Coffee responded that she did not care what the nurse said Mulvey recalled that at this meeting and definitely at another one held on 12 November recreation plans and budget were discussed Mulvey said money for recrea tion needs such as trips was nonexistent or in short supply Mulvey said he had to go into his own pocket to fund recreation trips and be reimbursed later Mulvey asked for particulars on the budget Coffee said it was taken out of petty cash for the moment They discussed the individual needs of clients Mulvey referred to a survey he had proposed in October for November to survey what clients did each weekend so their needs could be better served but which had not been done A discussion ensued about the goals of recreation and the fact that few of the clients-anywhere from four to six- participated in planned activities Mulvey responded that a substantial number of clients were living semi inde pendently there was no compulsion to participate some went home for weekends two were boyfriend and girl friend and one noted in his own recreation goal he would not be seen in a group of retarded people On 10 November Mulvey was asked to sign the docu ments but again refused At one point on either 10 or 12 November Challita asked Mulvey if he felt the letters were an harassment and Mulvey said he felt they were Coffee then stated they did not allege union activity and if this was not paranoia she did not know what was An 62 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD other meeting was scheduled for Wednesday 12 Novem ber at 1 in Coffee s office Apparently recreation was the main subject discussed at the conference held on 12 November Mulvey Coffee and Challita were present throughout and Black came in sometime doing its course Mulvey was asked what he would do for recreation for the following weekend Mulvey agreed to survey the clients needs which he had done previously to interview them as to ascertain what proper goals they had and to try and start up an other recreation program A memorandum of the confer ence prepared by Coffee lists as its purpose to review the recreation program and give assistance to Mulvey in areas of weakness They discussed the purpose of recre ational activities as outlined in the original plan that Mulvey helped to develop Many suggestions were made to which Mulvey agreed as to how he could im prove the program e g providing better information to the clients to stimulate their interests and showing more excitement and making a greater effort to become more aware of each client s needs likes and dislikes The memo noted Mulvey s lack of recreational activity expe pence or background for the position The matter of signing the counselings came up again on 12 November At one point Challita asked if he had signed the papers When Mulvey said no Challita said You had said you would sign them today to which Mulvey replied No I said I would address the issue Near the conclusion of the meeting Mulvey was again asked to sign the memos Mulvey responded now that Burke had advised him not to sign them and he would not sign them When Coffee asked if Burke was running his life Mulvey did not respond Coffee then said they had never had a case where someone had refused to sign counselings or memorandum She said she would call her lawyer Coffee then telephoned Davis in the others pres ence and Mulvey heard Coffee respond at one point into the receiver there is no procedure At a request made of him Mulvey got on the phone and Davis told him his union involvement did not matter that he had to sign the papers it would not be fair to other people who had to sign them Coffee expressed the same view After Coffee had completed the call Mulvey sought to excuse himself to go to the residence Black who was now present said no Coffee then said she would call the president of the board of directors and Mulvey waited outside He was then called back Coffee said she had spoken to the presi dent of the board and he was through there and if he did not sign them after he was asked to he was through Mulvey then got up and left Mulvey testified he had never been told by any man agers or supervisors at CGS that refusal to sign counsel ings was grounds for dismissal He also did not know of any personnel policy to that effect Floyd Black testified that he prepared the 30 October memorandum that asks the employee-in this case Kevin Mulvey-to acknowledge the fact that he was counseled verbally about the subject involved Yet the memoran dum nowhere makes this request or provides a space for employee signature or acknowledgement 9 Black also testified that he did not recommend that Mulvey be ter minated because of the errors he had made in filling in the medication chart Black also confirmed that Mulvey had signed a typed memorandum prepared during the 12 November meeting in which Mulvey stated that he would be contacting Chelsea I clients that night and Chelsea II clients on Sat urday or Sunday to survey their recreational preferences and then analyze these preferences and have recommen dations to Floyd with copies for Coffee s review by the following Wednesday Black testified that it was after this memo was prepared and signed that Mulvey s refusal to sign the earlier counselings he had prepared on the advice of Burke led to his termination Coffee testified that from the outset of Mulvey s em ployment because of his lack of prior experience she was dubious about his ability to perform the function of recreation counselor although she had approved his onginal hire on the recommendation of the then Chelsea residence manager Kate McReynolds and the approval of the then director of residences Stathe Moraitis On 8 August 1986 she had met with Mulvey and he reviewed a philosophy of leisure service and procedure for planned leisure activities that Coffee had prepared for his use The procedure included his preparation of leisure planning and evaluation sheets for future weekend activi ties for approval by the residence manager meetings to discuss them with the clients and his preparation of fol lowup evaluations of the activity for weekly discussion with the manager Mulvey prepared these planning and evaluation reports thereafter but Coffee who reviewed them periodically termed them unsatisfactory His planned activities museum visits a day at the beach were not suitable and on average only four to six clients participated and he did little to generate enthusiasm She also continued to monitor his performance and conclud ed it remained at a very very poor level There is no evidence however that Coffee or Black in the succeed ing months followed up to ensure Mulvey s adherence to the plan or to aid him in improving his performance in these particulars 10 Indeed at his exit interview Coffee noted Mulvey s willingness to adhere to the guidelines and improve his performance Coffee also expressed concern about the accuracy of logbook medication entrees because of state regulations 9 Other earlier written counselings that Mulvey had received e g one dated 19 July prepared by Clinical Coordinator Callabor specifically noted that it was a summary of a verbal counseling and contained space for both the supervisors and employees written signatures 10 Apparently based on two counselings issued to Mulvey in July by Callabro one related to a failure to sign for a medication administered and the other dealing with permitting another staff person to take clients to a movie in his place and having reimbursed her with moneys he had borrowed from the petty cash fund Mulvey was suspended with pay on charges pressed by Callabro After Mulvey filed an unfair labor practice charge at a hearing in late July attended by Mulvey Burke Callabro Coffee and Davis among others Mulvey was exonerated and reinstated without loss of any pay and Mulvey withdrew the charge Davis ac knowledged that there was a lot of antagonism between Muvley and su pervisors at Chelsea particularly Callabro The settlement of the charges also included an agreement to review the entire recreation program and Mulvey s assignment within CGS but the record does not show there was any followup on this on the part of Respondent CONTEMPORARY GUIDANCE SERVICES 63 and funding But Coffee did not dispute Mulvey s re sponses regarding this subject matter at his exit inter view his acknowledgement of his errors his subsequent corrections of them on consultation with a more senior employee and his verifying his corrections with the nurse Concerning Mulvey s refusal to sign the three counsel rags Coffee testified that in accordance with a memo sent to all residences and other sites when counseling is done the person who is counseled signs in recognition of the fact that he read the counseling that they understood what it was and they hoped they could do better in the future They were also permitted to write down com ments as Mulvey had done in previous counseling ses sions Coffee also corroborated Mulvey s characterization of Challita s participation as concentrating on seeking to start a fresh slate and then finishing off the discussion of past events by having Mulvey sign the counseling which in Chalhta s words were really just more or less a for mality that did not in any way effect their feeling about his performance However when Mulvey repeated a number of times he would not sign on Burke s advise Coffee confirmed that she called Attorney Davis who advised her to tell Mulvey that CGS had certain rules and regulations it lives by and an employee is expected to go by them and asked to speak to Mulvey directly Only when Mulvey continued in his refusal on the advise of Burke did Coffee decide that Mulvey had been insub ordinate lost her patience and terminated him In Coffees 12 November memorandum to the board of directors explaining her action she repeated her un derstanding that CGS standard procedure calls for the employee to sign the written counseling with leave to note any disagreement She concluded by noting that It became obvious that Mr Mulvey was more interested in pleasing Mr Burke than continuing as an employee of Contemporary Guidance Services Inc When confronted during cross examination with a Jan uary 1983 memorandum on employee counseling to all residence managers and assistants from Moraitis coordi nator urban residences noting copy forward to her Coffee claimed that it had been superceded by a shorter revised memorandum When Respondent could not produce any other writing the next hearing day his memo was received in evidence as representing outstand ing CGS procedure and guidelines on the subject Under paragraph C 3 D relating to written counselings the memorandum provides in part If the employee refuses to sign another employee (preferably a supervisor) should be asked to serve as a witness to the fact and then sign the counseling The employee is to be informed that he/she has a right to attach any comments to the counseling A copy of the written counseling should be given to the employee to the supervisor and to the Coordi nator of Urban Residences with the original filed in the Personnel Office Coffee evaded a direct response when asked whether CGS s own rules and this memo called for another em ployee preferably a supervisor to sign as a witness on an employees refusal to sign a counseling She also con tradicted that the normal procedure on 12 November would have included her asking one of the people present to sign the counseling when Mulvey declined to do so (Tr 979-980 ) Although Black was aware of the January 1983 memo randum and the procedures outlined in it and although Supervisor Kemether was also present when he present ed the three counselings to Mulvey on 5 November he did not ask Kemether to sign when Mulvey declined but he did ask Kemether to write a memo stating he was present and what had taken place That memo was not prepared and he did not inform Coffee at the 12 Novem ber meeting of his request to Kemether That Coffee in particular as well as Davis bore hostil ity toward Mulvey because of his key role in the union organizing campaign has been shown by their comments made to and about him at the representation case confer ence held in June In addition Davis made repeated ref erence to the low esteem in which he held the Teamsters Union In his cross examination Davis sought to establish that Mulvey sought his job for the sole purpose of orga razing the employees and had misrepresented his past employment history on his application in order to mis lead the Respondent although his claim played no role in Mulvey s discharge Coffee who had characterized Beckham as a quiet troublemaker in her 29 October letter to Davis viewed Mulvey as someone who was brought in who became an extreme thorn in everybody s side and caused a great deal of upheaval (Tr 939 ) When the organizing drive was underway she heard that Mr Mulvey was going to bury Mr Mulvey all of a sudden appeared at Yorkville Mr Mulvey s name came up over and over again and I didn t know what was going on at all but he was flying all over the place There is some reason to believe that Coffee was par ticularly incensed by Mulvey s erroneous listing of the clients trip to Kate McReynolds house as a home visit because Respondent believed that McReynolds was aware of and supported Mulvey s interest in organizing CGS s work force when she successfully recommended his employment Davis pursued a line of questioning of Mulvey seeking to establish such prior contacts between them Coffee ordered Mulvey to cease any union discus sions at the workplace and viewed Mulvey s reliance on Burke s advice for ultimately refusing to sign the coun selings as his making a choice between pleasing the union president and his job Coffee s credibility is suspect She insisted that a re vised counseling procedure had superseded the one pro duced by Respondent pursuant to subpoena but could not produce any such document She evaded any direct response when pressed about Respondents failure to apply that procedure to Mulvey at the 12 November meeting From time to time Coffee manifested a lack of cooperation as a witness and exhibited a testiness and loss of her temper by raising her voice and making sar 64 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD castic comments and asides particularly during her cross examination by the General Counsel III ANALYSIS AND CONCLUSIONS A The Alleged Refusal to Bargain In Summer & Co v NLRB 419 U S 301 (1974) the Supreme Court affirmed the Board in holding that an employer does not violate Section 8(a)(5) of the Act solely by refusal to recognize authorization cards as evi dence of a union s majority status However in reaching this result the Board made special note of its reliance upon the additional fact that the Respondent and the Union never voluntarily agreed upon any mutually ac ceptable and legally permissable means other than a Board conducted election for resolving the issue of union majority status Summer & Co 190 NLRB 718 721 (1971) The Supreme Court in Summer & Co made special note that it was not reaching the question as to whether the same result it reached obtains if the employ er breaches its agreement to permit majority status to be determined by means other than a Board election citing the case of Snow & Sons 134 NLRB 709 (1961) enfd 308 F 2d 687 (9th Cir 1962) as affirmative answer to this question More recently in Jerr Dan Corp 237 NLRB 302 303 (1978) the Board declined to follow the recommenda tion of the administrative law judge that an 8(a)(5) and (1) allegation be dismissed because the employers oral recognition that it later repudiated was not reduced to writing or accompanied by unambiguous objective con duct confirming the recognition such as the actual entry into contract negotiations The Board noted the key to the violation was not further evidence of recognition but rather the original commitment of the employer to bargain on some demonstrable showing of majority Once that commitment was made the Respondent could not unilaterally withdraw its recognition and to do so was a violation of the Act Accord Brown & Connolly Inc 237 NLRB 271 (1978) Applying those principles to the instant case I con elude that the General Counsel satisfied the burden of showing that an agreement had been made for the Union to seek to establish its majority in an agreed on unit by means of an objective third party card check and that once that majority had been established the Respondent would bargain Having credited Burke s version of the understanding arrived at with Davis at their initial meeting it is clear that they agreed a third party was to conduct a card check to determine whether the Union represented a ma jority of the counselors housekeepers and maintenance personnel employed at the three residences using a spec ified date to determine the total number of employees in those job categories at the residences Once Shebar con firmed the Unions majority Respondents unilateral withdrawal from its agreement breached its duty to rec ognize and bargain under the Act i i " The fact that the Union did not achieve a majority at one of there locations Yorkville is of no consequence as long as it had a majority in the agreed on unit at the three residences combined Contrary to Respondents contention as Attorney Davis was clothed as an agent with actual authority to enter such an agreement and even if not Burke was en titled to rely on Davis apparent authority to act in that capacity Regarding Davis actual authority Coffee told Burke to deal with Davis with respect to the Unions written demand for recognition and bargaining and Burke did so The Board has held and Section 2(13) of the Act sup ports the conclusion that a respondent employer is re sponsible for its attorneys conduct as long as that con duct is within the general scope of his agency authority even though the respondent may not have authorized the specific acts in question See Batavia Nursing Home 275 NLRB 886 at fn 1 (1985) There can be no question here that Respondents exec utive director having referred the Union to its attorney on the matter of union recognition Davis acted within the general scope of his authority in dealing with Burke Thus even if the agreement he reached with Burke was not specifically authorized Respondent is bound Regarding Davis apparent authority he was held out by CGS as its representative for purposes of the union contact and no notice was provided to Burke that there was any special limitation on Davis authority to negoti ate an agreement with him Thus under this theory Re spondent reasonably led Burke to believe that Davis had the authority he purported to have see Cablevision In dustries 283 NLRB 22 (1987) and Respondent is also bound by the agreement its agent reached My findings of fact also make clear that Davis claim that his agreement was conditioned on interview of each card signer has been rejected No such condition accom panted the agreement Davis 4 April letter to Burke as serts in part that [Shebar] will interview [alleged union members] to determine whether they in fact wish to join the union and if they do not obtain appropriate state ments from them Davis did not say all such alleged members In any event an interview of all such employ ees was not part of the understanding entered on 3 April and Davis does not claim he ever made Shebar aware of this undisclosed condition no copy of the letter was for warded to Shebar and Davis authorized Burke to make all followup contacts with Shebar and to be responsible for implementing their agreement As the parties stipulat ed on the record not every signer was interviewed Nonetheless as Shebar reports the results of his check were based on signature comparisons as well as inter views with employees from all three residences And Shebar had before him the Application For Member ship in Local 868 in which the signer both applied for membership in the Union and voluntarily choose and designated it as his representative for purposes of collec tive bargaining 12 The card did not state that it was for the purpose of seeking an election At the parties second meeting even under Davis ver sion Respondent did not dispute the validity of Shebar s report Davis comment recognized that the unit of em 12 Contrary to Respondents assertion the two cards admitted into evi dence Beckham s and Mulvey s are identical in all these respects includ mg a checkoff authorization CONTEMPORARY GUIDANCE SERVICES 65 ployees at the three locations are interested in a union It was only by its answer dated 8 January 1987 and at the heanng which began later that month that Respond ent for the first time raised a contention that the Union did not represent a majority of the card signers because of alleged misrepresentation in the solicitations that they were signing for an election only Respondent may not so belatedly raise this issue as justification for its earlier refusal to bargain Berbigha Inc 233 NLRB 1476 1494 (1977) Roman Catholic Diocese of Brooklyn 222 NLRB 1052 1054 (1976) enfd in pertinent part sub nom Naza reth Regional High School v NLRB 549 F 2d 873 800 (2d Cir 1977) The record is also silent as to any complaint made by Davis or any other Respondent agent to the Union or to Shebar about the report s conclusion that the Union had been authorized to bargain for a majority of CGS s eligi ble employees Neither did Davis raise any objection to the Union or Shebar in particular after his receipt of the report that not all card signers were interviewed Once Respondents voluntary recognition was estab lished Respondent had the burden at the hearing assum. ing its claim not to have been earlier waived of coming forward with sufficient evidence of union misconduct- in this case misrepresentations in the solicitation of the Union cards-in obtaining its majority showing before Shebar See Royal Coach Lines v NLRB 838 F 2d 47 (2d Cir 1988) enf denied 282 NLRB 1037 (1987) Respond ent has failed to meet that burden At the opening of hearing Respondents counsel Davis requested that he be permitted to call CGS employees out of turn to testify as to their position on union repre sentation although he had not previously interviewed them Thus at that time Respondent had no evidence of improper union solicitations One employee witness Re spondent later called Daphne Johnson refused to meet with Mulvey at the Yorkville residence when he was so liciting cards because she objected to his saying on the telephone he had an appointment with her when she had none with him She understood from her phone conver sation that his visit was all about getting people to sign to decide whether or not they wanted to take a vote as to whether or not they wanted to join the Union She never signed a card However she also testified that she overheard Mulvey solicit three other Yorkville employ ees telling them that he was there to see how many people would be willing to sign up to look into the Union if they wanted to join it or not It should also be recalled that the Union did not achieve a majority of card signers among eligible Yorkville employees having signed only one full time and four part time employees out of seven full time and five part time employees on the list submitted by CGS Regarding another employee witness called by Re spondent who works at Berry residence Beatrice Reavis I rejected an offer of proof made by Respondent counsel that when Reavis who signed a card was solic ited by Mulvey to sign he told her you can just sign these cards that it does not matter at all it is not impor tant we just need these signed Part of the offer was that Reavis was also not interviewed by Shebar Counsel based his offer on a 1 minute conversation in the hall before calling her Respondent in its brief argues that many difficulties apse because the NLRB refused to allow all the cards in evidence or even the cards of signatories no longer working for CGS Yet Respondent counsel never sought the issuance of a subpoena to require their production and use during presentation of its case in chief He did not call another card signer other than Reavis among the 30 whose cards Shebar had validated Neither did he cross examine Mulvey nor Beckham as to their solicita tions in obtaining signatures Given the clear wording on these single purpose cards and Respondents failure to show by a preponderance of the evidence that the Union s solicitation of a majority of the cards was improper 13 Respondents attack on the validity of the cards must fail Respondent also argues that the unit in which the card check was made is inappropriate because it did not in elude all Respondent facilities and it included profession al employees who were not provided their statutory option Both arguments are rejected As an ealier de scnption of their duties and interaction make clear these eligible employees at the three residences share a com munity of interest distinct from the other facilities that establishes them as an appropriate unit for purposes of collective bargaining As noted by the Board in a case involving not dissimilar health care employees a serv ice and maintenance unit in a service industry is the ana logue to the plantwide production and maintenance unit in the industrial sector and as such is the classic appro prate unit Newington Children s Hospital 217 NLRB 793 794 (1975) There is little or no contact or integration of personnel and function with the four counselors at the sheltered workshop the several workers and teachers at the mini mall or the evaluators in vocational training at the main location If this were a representation proceeding it is fairly evi dent that the Union could seek the employees in the three residences as an appropriate unit without requiring it to seek the most appropriate unit if indeed there is none more appropriate 114 See e g Omni International Hotel 283 NLRB 475 (1987) But this is not a proceeding in which the Board is being asked to define the unit The parties have done that by means of their own agreement 13 Employees are bound by the clear language of what they sign unless that language is deliberately and clearly canceled by a union adherent with words calculated to direct the signer to disregard and forget the ]an guage above his signature Single purpose cards may only be invalidated if the employee was actually told that the sole purpose of the card was to obtain a Board election See NLRB v Gissel Packing Co 395 U S 575 (1969) 14 The limited inconclusive and spasmatic history of bargaining by Respondent with an in house association representing all employees in eluding supervisors and professionals between 1982 and 1984 would nor mally be discounted in making this unit determination See The Develop ing Labor Law Vol 1 at 421 (2d ed) Neither does Respondents claim that the eligible employees include professionals ment extended discus Sion Clearly the counselors are akin to the social work assistants and social work associates found not to be professional employees within the meaning of the Act in Child & Family Services of Springfield 220 NLRB 37 38-39 (1975) 66 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD As the Board noted in a similar case in which an em ployer reneged on a recognition agreement after person ally checking the cards because it did not include all em ployees who share a distinct community of interest This is not a case in which the Board is being asked to define an appropriate unit to direct an election or to certify the results of such an election It is therefore unnecessary to decide whether we would find the unit appropriate were the issue raised in such a context Having voluntarily recognized and bargained with the Union as the collective bargaining repre sentative of a unit composed of Penningtan and Hurley Respondent argued for the first time at the hearing herein that the unit is inappropriate because the employees lack a distinct community of interest We reject this belated attempt to repudiate the vol untary recognition A contrary holding would fly in the face of our statutory obligation to promote sta bility in bargaining relationships [Cardox Division of Chemetron Corporation 258 NLRB 1202 (1981) ] B The Alleged Maintenance of an Unlawful No- Solicitation Rule and Interrogation of Employees The undisputed facts are that after discovery of Beck hams 3 May note in the logbook calling for a union meeting at the Berry residence the following Tuesday evening the residence director immediately wrote a note in the same log canceling the meeting and Executive Di rector Coffee on advice of counsel approved a memoran dum directed to all staff of urban residences from Attor ney Davis dealing with the subject of union activity at Respondents premises At Berry residence the memo was affixed in the logbook for the information of the staff Although the memo was phrased in language indi cating that employees may attend any union meeting or other activity provided it does not interfere with your job functions or responsibilities the conduct of Respond ent s management contradicted this benign advise Thus Berry Manager Gooden canceled the meeting without explanation and Executive Director Coffee explained in writing to the Region that the intent of the memo was that there was to be no union business earned on during working hours or on the residence premises The clear intent of Respondents prohibitions was brought home directly to the known leading union advo cates among employees Beckham and Mulvey in lee tures administered to them by members of management On 10 May Berry Assistant Manager Black told Beck ham that Gooden was very upset about her entry and the employees could not meet on the premises When she learned he was making union approaches to staff at other facilities on 20 May Coffee informed Mulvey he was not to unionize on company time and company property and how he got in touch with people at other facilities was his problem She added he was to cease and desist from organizing even and including Chelsea where he worked The CGS memorandum confirming this meeting notes inter alia Until the NLRB makes a statement there are to be no discussions during working hours or on any CGS premises Although the memo adds the sentence People are free to speak privately on their own time it is clear from the prior restriction that em ployees own time to discuss labor related matters was to be off CGS premises The Board has recently clarified the standard that shall govern prohibitions on union soliciting on company property In Our Way Inc 268 NLRB 394 (1983) it reasserted and readopted the standards set forth in Essex International 211 NLRB 749 (1974) in which the Board held that rules that prohibit employees from soliciting during working hours are presumptively invalid be cause that term connotes periods from the beginning to the end of workshifts periods that include the employ ees own time In doing so it overruled T R W Bearing Inc 257 NLRB 442 (1981) to the extent that case re moved the distinction that Essex International had draw between restrictions on employee soliciting during working hours on the one hand and such restrictions on soliciting during working time on the other hand and found both presumptively invalid Unless the em ployer shows through extrinsic evidence that its work ing hours rule was communicated or applied in such a way as to convey an intent clearly to permit solicitation during breaktime or other periods when employees are not actively at work the rule will be found to be invalid Respondent adopted and enforced a rule that prohibits any union solicitation business or activity during work hours or on the residence premises Such a rule is doubly invalid As it breaches the Our Way standard because it prohibits any such union activities during employees working hours it is presumptively invalid Inasmuch as Respondent has failed to show that it nonetheless permits solicitation during the employees own time on its prem ises the rule is conclusively invalid Indeed Respondent could not show any such intent because by the rule and its enforcement it not only prohibits solicitations on em ployees own time but it also prohibits all solicitations whether on its or the employees own time on its prem ices In Republic Aviation Corp v NLRB 324 U S 793 (1945) in which case the Supreme Court first established the principle that underlays the Board s standards the Court adopted the presumption prohibiting union solici tation by employees outside working time although on company property only special evidence showing the necessity for the rule would make valid such a restnc tion No such evidence was offered by Respondent Surely a restriction prohibiting all solicitation on compa ny property falls afoul of both the Republic Aviation prin ciple and Our Way standard I shall accordingly recom mend that Respondents conduct in this regard violates Section 8(a)(1) of the Act On or about 16 May Executive Director Coffee tele phoned Mulvey to ask him what is this business about Chelsea When they met the following Tuesday 20 May Coffee s remarks served to clarify the meaning of her earlier inquiry The purpose of the meeting was to direct Mulvey to cease all his union activities at CGS fa cilities The timing of this confrontation was clearly re lated to Mulvey s visit recent contacts with residences to CONTEMPORARY GUIDANCE SERVICES 67 select union representatives and submit contract propos als and his recent solicitations at other facilities following Davis withdrawal of union recognition at the residences When Coffee pressed Mulvey to agree that his union izing on company time and property was wrong she was clearly seeking to intensify the pressure she had already applied to him to get him to cease legitimate activities expressly protected by Section 7 of the Act She was also attempting to learn more about the depth of Mul vey s union sentiments and adherence In Rossmore House 269 NLRB 1176 (1984) the Board adopted as a test to determine whether interrogations violate the Act whether under all the circumstances the interrogation reasonably tends to restrain coerce or interfere with rights guaranteed by the Act It rejected its prior holding in PPG Industries 251 NLRB 1146 (1980) that questions concerning union sympathies even when addressed to open and active union supporters in the absence of threats or promises are inherently coer cive I conclude that Mulvey s interrogation violates the Rossmore House test Although Mulvey was an avowed and open union adherent the context in which the ques tioning took place suggests that he nonetheless was re strained See Midwest Stock Exchange v NLRB 635 F 2d 1255 1267 (7th Cir 1980) The chain of events started with a telephone call of a cryptic nature in which the Respondents executive director sought information about Mulvey s business at Chelsea Because Mulvey worked there the inquiry had to do with conduct which was other than work related the normal chain of com mand would have been for Mulvey s immediate supervi sors at the residence to counsel him Coffee s direct con tact the words she used and the abrupt nature of the call had the effect of placing Muvley on the defensive about his current nonwork related conduct at the rest dence Even though cryptic in nature it is reasonable to conclude it was directed at his union approaches within and outside the residence Coffee in effect confirmed this on her personal followup meeting in her office the locus of Respondent authority At the meeting Mulvey was first subjected to the imposition of an invalid no so licitation rule and then asked to agree with the Employ er s action At no time was Mulvey assured that he in curred no risk to his job by participating or by the nature of his responses The questioning was far from casual and was directly related to Respondents efforts to circumscribe outside union organization of its work force Although not determinative on the issue Mulvey s own response is revealing As a consequence of the inter change with Coffee he ceased all further union activities at Respondents premises I conclude his interrogation violated Section 8(a)(1) of the Act C The Alleged Discriminatory Discharge of Dolores Beckham Respondent s stated reason for discharging Beckham was that she had covered up a fellow employees leaving the residence without permission Yet this incident was only one in a history of employees covering for each other at Berry residence about which Respondent had done hardly anything prior to Beckham s discharge No employee had been counseled warned or disciplined and only general warnings had been made at two Berry staff meetings That Respondent treated this incident unlike all other similar incidents that arose in the past is shown b3 the fact that contrary to CGS s personnel policies Beckham was not counseled about the matter prior to her dis charge a procedure required of even serious infractions not warranting immediate discharge This fact is even more surprising because Beckham was a longstanding employee in fact the most senior at her residence whose work history had been generally satisfactory Of even greater significance is the fact that James Jorge whom Director Coffee called a crook for leaving the rest dence without permission or any notice or punching out and was already on probation for serious past infractions was permitted to resign for his offense without incident although Beckham who had aided him was fired for hers Such disparate treatment of a known outstanding union advocate as against an employee without any evi dent union interest is striking in the extreme Respond ent failed to mitigate this telling evidence by any expla nation whatsoever A more accurate explanation for Beckham s summary treatment by both Carolyn Gooden Berry s manager and Pearl Coffee CGS s executive director resides in the fact they both harbored hostility toward Beckham s union role in mobilizing support and encouraging partici patron in collective bargaining at Berry residence Assist ant Manager Black reported to Beckham that Gooden was very upset about this Union and her union activities Executive Director Coffee admitted on the witness stand that Beckham s union note in the logbook had disturbed her and in reporting the firing to her lawyer described Beckham as a quiet trouble maker whose prounion po sition was evident from her logbook entry In spite of her hostility however Gooden had evident reservations about discharging Beckham that she ex pressed in her report to Coffee Gooden recognized that punching in and out was an ongoing problem at Berry and although she suspected Beckham of having done so previously she had no proof She ended up questioning whether CGS had sufficient grounds to terminate Beck ham because she had not been counseled before and it was not a policy of the agency to fire someone caught misusing the timeclock Regarding Jorge in view of his prior written warning and probationary status she had no hesitancy in recommending his discharge When confronted with these aspects of Gooden s report at the hearing Coffee explained in a curt manner that she did not have to go by what Gooden advised In stead without providing Beckham with any counseling or even the opportunity to review or to respond to Goo den s report or providing the 2 weeks notice required by CGS s personnel policies Coffee summarily terminated Beckham It is evident from the foregoing that Respondent seized on Beckham s act of covering for Jorge as a pre text to mask its discriminatory intent in eliminating her from its work force and I so find I conclude that the General Counsel has established prima facie that Beck 68 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ham s protected conduct was a motivating factor in Re spondent s decision to fire her and further that Re spondent has failed to satisfy its burden of showing that her discharge would have occurred in any event and for valid reasons See NLRB v Transportation Management Corp 462 US 393 (1983) D The Alleged Discriminatory Warnings to and Discharge of Kevin Mulvey The General Counsel alleges that on or about 5 No vember Respondent issued wntten counselings to Mulvey that interfered with his exercise of Section 7 rights and thus violated Section 8(a)(1) of the Act These were the three memoranda dealing with Mulvey s failure to follow CGS s medication procedures his failure to report for supervision and reporting his upcoming recre ational plans and his having worked unauthorized hours The first two were handed to Mulvey by Kemether but all three were from Residence Manager Black None of them referred to or dealt with Mulvey s pro tected activity Only if found to have been a form of har assment or interference with such activity may they be determined to have been a violation of Section 8(a)(1) The facts show that Mulvey did not comply in all re spects with Respondents procedures for recording medi cations that he provided to clients on the day in ques tion He did not list all medications provided nor did he sign for all of them and he erroneously listed the clients excursion as a home visit rather than as a trip Regarding the claim of Mulvey having worked unauthorized hours although there is some question whether Mulvey was placed on notice that his practice of working extra hours under the pnor manager was no longer being tolerated there is also no evidence that Black had condoned the arrangement The memorandum sought to clear the air and established the permitted parameters of Mulvey s work hours for the future Similarly concerning the third memo dealing with the time for their supervisory meeting the evidence again shows a practice of no fixed scheduling under the prior manager and even some diffi culty in keeping the Wednesday time frame since Black had become manager because of intervening events nonetheless Black s memorandum appears to be setting the matter straight for the future and making Mulvey aware of that fact In measuring the wntings against the employee coun seling procedures and guidelines denved from CGS s 28 January 1983 memorandum there appears to have been some stretching of the guidelines in issuing at least one and perhaps two of the counselings Thus there is no evidence that the issue of supervisory meetings had been previously discussed in a verbal counseling Accordingly one can disagree with Black s judgment in issuing a writ ten counseling about it when he did Again the wnting dealing with unauthonzed hours was not preceded by a verbal counseling as normally called for under the guide lines yet the seriousness of the extra hours as a cost factor to Respondent permitted Black to exercise his dis cretion here as the guidelines permit Regarding the medication procedure breaches Mulvey had received at least one prior verbal counseling regarding this subject in June He had been verbally counseled on 22 October counselings on 5 November 1986 and the written counseling provided an opportunity for Black to reemphasize CGS s procedures and deal with Mulvey s explanation that as to one or more of the errors he had relied on the Assistant Managers advice contrary to policy The form of writing used does not conform with the guidelines which call for the appropriate form (record of employee counseling) However other counseling in the record also appear to have been prepared in a similar way The foregoing review of evidence leads me to con clude that the General Counsel has not sustained the burden of showing that the written counselings them selves constitute warnings or forms of harassment to re frain from union activities in violation of Section 8(a)(1) of the Act and I will recommend dismissal of this allega tion Although Black s judgment in setting some of these complaints in written form may be questioned I am not convinced that their issuance reasonably tend to interfere with the free exercise of employee rights under the Act-the well settled test applied to determine whether certain conduct constitutes an unfair labor practice under that section of the Act The manner in which Respondent issued the counsel ings and the nature of Respondent s reaction to Mulvey s refusal to sign them present a significantly different set of circumstances that form the setting in which to judge whether Respondent terminated Mulvey unlawfully Contrary to the guidelines and unexplained on the record Black the supervisor who issued them 15 did not give two of them to Mulvey did not formally counsel him about the problems they presented and did not re quest him to sign them The supervisor who did Ke mether had also told Mulvey previously that he would take the heat for one or more of the errors on the most serious of the three counselings Thus Black could have reasonably anticipated some problem over Mulvey s agreement with the complaint Later after Black with Kemether present discussed the counselings with Mulvey and Mulvey refused to sign them he failed to follow the option specified in the guidelines of requesting Kemether to serve as witness and to sign them Instead he conditioned Mulvey s continued employment that day on his signing the forms and when Mulvey continued to refuse had him punch out Although he requested Ke mether to prepare a writing as to these events there is no record evidence that Kemether did so and Black did not inform Coffee that he had engaged in this procedure Although forwarding the counselings and a report to Coffee about Mulvey s conduct Black probably had some reservations about some of the transactions be tween them because he did not recommend Mulvey s dis charge I conclude however that Coffee with Davis partici pation used Mulvey s continued refusal to sign the coun selings in reliance on union advice as a pretext to termi nate him from Respondents work force As I have dem onstrated by a review of the evidence in the factual sec 15 The complaint in error alleges that Kemether issued the written CONTEMPORARY GUIDANCE SERVICES 69 tion dealing with Mulvey both Coffee and Davis har bored resentment at Mulvey s single minded effort to un ionize Respondents residence employees This resent ment was exhibited at the representation conference on the witness stand and in the defenses Respondent raised to the manner in which Mulvey became employed Most noteworthy Mulvey became the recipient of Coffee s special and personal interest in her 16 May telephone call and 20 May meeting with him directed solely to coerc mg Mulvey to cease his union activities As Coffee well knew Mulvey was the key union leader among employ ees who coordinated and led the drive and was the liai son between the union president and employees Both Coffee and Davis were aware that an earlier at tempt to discipline Mulvey led by Clinical Coordinator Callabro who had sought to get employees to drop their Teamsters support had proven unsuccessful because it was made without an adequate basis The immediate reason for Mulvey s discharge was his insubordination in continuing to refuse to sign the written counseling in particular dealing with medication procedures and relying on union advise for his refusal Yet during the two sessions to discuss the counselings and the recreation program at Chelsea residence it had become evident as Challita noted without objection from Coffee that Mulvey s signing had become a formal ity As the testimony makes clear Mulvey had orally ac knowledged his errors had explained what he had done to correct them and had been fully counseled and the discussion had moved on to plans for improvement of the recreation program Still Coffee pressed Mulvey to sign the memo She did so in spite of the facts that Mulvey had consistently refused to sign over four sepa rate meetings starting with the 5 November one held with Kemether relying on what he believed were errors in each and Respondents counseling procedures very clearly provided a method of dealing with this contin gency Futhermore Mulvey s cooperation with the counseling procedure had been manifested by his signing a memo randum near the conclusion of the 12 December session committing himself to survey client recreational prefer ences analyze them and make recommendations Thus the purposes of the counselings had been achieved Mulvey knew why they had been done all the pertinent issues had been reviewed Mulvey had been able to respond to each and all decisions as to corrective action had been taken (see employee counseling memo of 28 January 1983 par C 3 c) By agreeing to have Mulvey sign the memo relating to his future recreational program Respondent had condoned Mulvey s past short comings and thus its continued reliance on them during the hearing as leading up to the decision to discharge him must be viewed as an attempt to bolster a defense that served to shield its true motive Coffee and Davis dilemma over Mulvey s position was one of their own making Coffee expressed the view to Davis in their telephone conversation that there was no precedure for dealing with Mulvey s refusal Davis and Coffee both told Mulvey that it would not be fair to others who had to sign In the face of the Respond ent s available procedure these comments reflected a posture that by his stance Mulvey was placing his job at risk When Mulvey coupled his refusal with reliance on union advice Respondents director and attorney both of whom I have found to be unreliable witnesses came to the conclusion that Mulvey was incorrigible and that his continued injection of union considerations into his dealings at the agency would not be tolerated any longer Mulvey was summarily fired over his refusal to comply with a formality and Respondent had rid itself of the thorn in its side Accordingly I conclude that Mulvey s protected conduct was a motivating factor in Respondents decision to discharge him and that Re spondent has failed to prove that it would have dis charged him for like conduct absent his protected con duct CONCLUSIONS OF LAW I The Respondent Contemporary Guidance Services Inc is an employer engaged in commerce within the meaning of Section 2(2) (6) and (7) of the Act 2 Local 868 International Brotherhood of Teamsters Chauffeurs Warehousemen and Helpers of America AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act 3 By promulgating maintaining and enforcing since 3 May 1986 a rule banning any union business discus sions or solicitations during working hours or on its premises and in or about May 1986 by interrogating em ployees concerning their membership in and activities on behalf of the Union Respondent has restrained employ ees in the exercise of the rights guaranteed them by Sec tion 7 of the Act and has thereby engaged in and is en gaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act 4 By discharging employees Dolores Beckham and Kevin Mulvey because they joined and assisted the Union and engaged in other concerted activities for the purpose of collective bargaining or other mutual aid or protection Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act 5 All counselors and housekeeping and maintenance employees employed at the Chelsea Yorkville and Berry residence facilities constitute a unit appropriate for the purposes of collective bagaming within the meaning of Section 9(b) of the Act 6 At all times since 26 March 1986 Local 868 Inter national Brotherhood of Teamsters Chauffeurs Ware housemen and Helpers of America AFL-CIO has been the exclusive representative of all the employees within the above appropriate bargaining unit for purposes of collective bargaining with respect to wages rates of pay hours of employment and other terms and conditions of employment within the meaning of Section 9(a) of the Act 7 By repudiating and reneging on an agreement to recognize and bargain with the Union following its dem onstration of majority status in the agreed on unit as a result of a third party independent card check thereby refusing since on or about 8 May 1986 to recognize and bargain with the Union as the exclusive representative 70 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD of the employees of the above described appropriate unit Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act 8 The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act 9 Respondent has not engaged in any unfair labor practices not specifically found herein specifically Re spondent has not violated the Act by issuing written counselings on 5 November 1986 to employee Kevin Mulvey THE REMEDY Having found that Respondent has engaged in unfair labor practices in violation of Section 8(a)(1) of the Act by promulgating and implementing an invalid no solicita tion rule and by interrogating its employees I shall rec ommend that the Respondent be ordered to cease and desist therefrom and take certain affirmative action nec essary to effectuate the policies of the Act Having found that Respondent unlawfully discharged employees Dolo res Beckham and Kevin Mulvey I shall recommend that Respondent be ordered to reinstate them to their former positions or if no longer available to substantially equiv alent positions without prejudice to their seniority and other rights and privileges and make them whole for any loss of earnings or other monetary losses they may have suffered as a result of the discriminations against them less interim earnings if any with interest therein as computed in New Horizons for the Retarded 238 NLRB 1173 ( 1987) 16 Having found that Respondent violated Section 8(a)(5) and (1 ) of the Act by refusing to bargain with Local 868 International Brotherhood of Teamsters Chauffeurs Warehousemen and Helpers of America AFL-CIO and its designated agents since on or about 8 May 1986 as the exclusive representative of its employees in an appro priate unit I shall recommend that Respondent be or dered to cease and desist therefrom and on request bar gain collectively with the Union and its designated agents concerning wages rates of pay hours of employ merit and other terms and conditions of employment as defined in the Order below On these findings of fact and conclusions of law and on the entire record 17 I issue the following recommend ed1s 16 Under New Horizons interest is 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 accrued before 1 January 1987 (the effective date of the amendment) shall be computed as in Florida Steel Corp 231 NLRB 651 (1977) 17 Following the close of hearing Respondent counsel and one of its program directors issued letters directed to Region 2 of the Board and to third parties with copies to me which made factual claims outside the record and in one instance at least was made ex parte All this material has been disregarded in preparing this decision By order dated 16 April 1987 and pursuant to Secs 102 132 and 102 133 of the Boards Rules and Regulations I opened the record to receive Respondent counsels last letter to a third party dated 9 April 1987 and my order These docu ments have been marked ALJ Exhs 3 and 4 Two responses from parties a letter from Respondents counsel dated 20 April 1987 and a letter from Respondents executive director Pearl Coffee dated 20 April 1987 were received and have also been marked in evidence as ALJ Exhs 5 and 6 respectively ORDER The Respondent Contemporary Guidance Services Inc New York New York its officers agents succes sors and assigns shall I Cease and desist from (a) Refusing to recognize and bargain collectively with Local 868 International Brotherhood of Teamsters Chauffeurs Warehousemen and Helper of America AFL-CIO and its designated agents as the exclusive representative of its employees in the following appropri ate unit with respect to wages rates of pay hours of em ployment and other terms and conditions of employ ment All counselors housekeeping and maintenance em ployees employed at the Chelsea Yorkville and Berry residence facilities (b) Discharging or otherwise discriminating against employees in regard to their hire tenure of employment or other terms and conditions of employment because they have become members of or engaged in activities on behalf of the Union (c) Promulgating maintaining and enforcing a rule banning any union business discussions or solicitations during working hours or on its premises and interrogat ing its employees concerning their membership in and activities on behalf of the Union (d) 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 policies of the Act (a) On request bargain collectively in good faith with the above named labor organization and its designated agents as the exclusive representative of its employees in the appropriate unit with respect to wages rates of pay hours of employment and other terms and conditions of employment and if an understanding is reached embody same in a written signed agreement (b) Offer to Dolores Beckham and Kevin Mulvey im mediate and full reinstatement to their former jobs or if those jobs no longer exist to substantially equivalent po sitions without prejudice to their seniority or other rights and privileges previously enjoyed and make them whole for any loss of earnings or other benefits they may have suffered by reasons of their unlawful discharges in the manner set forth in the remedy section of the deci sion (c) 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 18 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 put poses CONTEMPORARY GUIDANCE SERVICES (d) Post at its principal place of business located at 500 Eighth Avenue New York New York and at its rest dence facilities at 193 Ninth Avenue New York New York 424 East 89th Street New York New York and 47-38 11th Avenue Long Island City New York copies of the attached notice marked Appendix 19 Copies of the notice on forms provided by the Regional Director for Region 2 after being signed by the Respondents au 19 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 71 thorized representative shall be posted by the Respond ent immediately upon receipt and maintained for 60 con secutive days in conspicuous places including all places where notices to employees are customarily posted Rea sonable steps shall be taken by the Respondent to ensure that the notices are not altered defaced or covered by any other material (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re spondent has taken to comply IT IS FURTHER RECOMMENDED that the complaint be dismissed in respect to the allegations that the Respond ent issued written counselings on 5 November 1986 to Kevin Mulvey in violation of the Act js