Bristol Convalescent Home, Inc

BRISTOL CONVALESCENT HOME 625 Bristol Convalescent Home, Inc and Connecticut State Federation of Teachers/Federation of Nurses and Health Professionals, AFT/AFL- CIO Bristol Convalescent Home , Inc and Bristol Conva- lescent Home Grievance Committee Cases 39- CA-1315, 39-CA-1471, 39-CA-1324,39-CA- 1419, 39-CA-1420, and 39-CA-1469 April 11, 1989 DECISION AND ORDER BY MEMBERS JOHANSEN, CRACRAFr, AND HIGGINS On September 30, 1983, Administrative Law Judge Harold B Lawrence issued the attached de cision The Respondent filed exceptions and a sup- porting brief The National Labor Relations Board has delegat ed its authority in this proceeding to a three- member panel The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge's rulings, findings, and conclusions,1 as modified below, and to adopt the recommended Order as modified and set forth in full below 1 A principal issue presented in this case is whether the Respondent violated Section 8(a)(3) and (1) of the Act by refusing to reinstate service and maintenance unit employees who engaged in a sympathy stake from June 14 until August 8, 1982, when they unconditionally offered to return to work The Respondent's primary defense is that the sympathy strikers were engaged in unprotected ac- tivity because they had violated the no-strike clause in the collective-bargaining agreement be- tween the Respondent and the Bristol Convales- cent Home Grievance Committee (the Committee) The judge found that the sympathy strikers were not acting in breach of their contract, and that the Respondent therefore violated the Act as alleged We agree, but our analysis of this issue is based on the standards set forth in Indianapolis Power Co, 273 NLRB 1715 (1985) (Indianapolis Power 1), re manded sub nom Electrical Workers IBEW Local 1395 v NLRB, 797 F 2d 1027 (D C Cir 1986), de- cision on remand 291 NLRB 1039 (1988) (Indianap- olis Power II), which issued subsequent to the judge's decision 2 In Indianapolis Power II, the Board reaffirmed the rule of Indianapolis Power I, but abjured appli- cation of that rule to create an irrebuttable pre- sumption that a broad no-strike clause bars sympa- thy strikes In sum, the Board stated [W]e continue to believe that a broad no-stake clause should properly be read to encompass sympathy strikes unless the contract as a whole or extrinsic evidence demonstrates that the parties intended otherwise In deciding the issue of whether sympathy strikes fall within a no-strike provision's scope, the parties' actual intent is to be given controlling weight and ex- trinsic evidence should be considered as an in- tegral part of the analysis 3 The contract at issue here was in effect from January 1, 1980, to December 31, 1982, with a con- ditional provision for automatic annual renewal thereafter Article 15 of this contract states It is mutually agreed by the parties to this Agreement that there shall be no strike, slow- down, walkout or stoppage of work by the Committee, nor shall there be any lockout by the Employer during the life of this Agree- ment, and that any difference or misunder- standing that may arise between the contract ing parties shall be amicably adjusted by and between the parties themselves, and if the par ties themselves cannot amicably adjust the dif ference, then the matter shall be referred to ar- bitration, as provided for in this Agreement 4 We find that the foregoing language, read as a whole, is not sufficient to bar sympathy strikes Al- though this language is in a contractual article sep- arate from those containing grievance and arbitra- tion provisions and it expressly bars a broad range of job actions, the specific reference to arbitrability indicates that the no-strike provision is functionally related to arbitration and intended to be in effect only when disputes could be resolved by the arbi- tration process Indeed, the no-strike clause and the provision for referring differences or misunder- standings to the arbitration procedure are not only in the same contract article but are part of a single sentence This apparent relationship between the express no strike provision and arbitration warrants i In accord with our analysis in Texaco Inc 285 NLRB 241 (1987) we agree with the judge s conclusion that the Respondent violated Sec 8(a)(3) and (1) by refusing to pay undisputedly accrued vacation pay to striking nurses and to service and maintenance employees who honored the nurses picket line We find it unnecessary to pass on whether the Re spondent also violated Sec 8(a)(5) by failing to pay the accrued vacation pay inasmuch as the make whole remedy for such a violation would not differ from the remedy for the violation found 2 In agreeing with his colleagues that the sympathy strikers did not act in breach of the parties contract Member Johansen has applied the anal ysis set forth in his concurring opinion in Indianapolis Power Co (Indian apolis Power 11) supra 3 291 NLRB 1039 1040 4 Arts 24 and 25 contain the parties grievance and arbitration prove sions 293 NLRB No 73 626 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the inference that the parties intended a narrower limitation on strikes than in cases involving an ex- press no-strike provision that is functionally inde pendent from the arbitration process 5 As the sym- pathy strikers here refused to cross a picket line es- tablished by the Respondent's unrepresented nurses in support of their organizational strike, the under lying dispute was clearly not a difference or a mis- understanding ansing under the contract, and was not arbitrable Accordingly, the wording of the contract, standing alone, does not bar the service and maintenance employees' action Furthermore, extrinsic evidence does not demon- strate any broader intent with respect to the con- tractual ban on strikes Extrinsic evidence about the parties' discussion and understanding when ne- gotiating the no-strike clause would be of great sig- nificance, but there is no such evidence in the record There is also no evidence concerning past practice or arbitral interpretation To the extent that it is relevant, testimony about the parties' un- derstanding of the clause at the time of the 1982 strike or the 1983 unfair labor practice hearing is varied and ambiguous The Respondent's adminis- trator, Archer, testified that she reminded service and maintenance employees before the strike that they did have a working contract-working agree ment-that called for no work slowdown or strike or anything that would affect their performance inside the home And they were expected to show up on duty Monday the 14th " She further stated that "those that did not come in were replaced " The Committee's vice president, Hutchins, testified that the Respondent's officials warned that "we had a contractual agreement that we would not go on strike, that we could lose our jobs if we didn't you know, play by the rules The Committee's chairman, Pearson, explained that he waited across the street from the nurses' picket line because it stipulates in our contract that if we-well, it would be a contract violation if we went anywhere near the strike or, you know, near the sidewalk when nurses were picketing " In light of the contract language, none of the foregoing testimony clearly evinces the parties' actual intent to waive the right of service and maintenance employees to participate in sympathy strikes The testimony by Archer and Hutchins am- biguously implies either the potential for job loss, permissible if the right to strike were waived, or the more limited consequence of replacement, per 5 E g United States Steel Corp v NLRB 711 F 2d 772 (7th Cir 1983) The court there stated Of course in cases where an arbitration clause and an express no strike clause are closely interwoven it may be reasona ble to infer that the parties intended the two provisions to have the same scope 712 F 2d at 777 Compare Indianapolis Power II supra 1040 fn I1 (no strike clause fully independent of arbitration clause) missible even if the sympathy strike were protect- ed Pearson s testimony is even more unclear, sug- gesting the view that the contract proscribed phys- ical proximity to the nurses' picket line or strike action In sum, viewing the inconclusive extrinsic evidence in light of the contract language expressly relating the strike waiver to arbitrability, we find that the Committee had not waived the right of unit employees to engage in a sympathy strike 2 In the judge's conclusions of law and recom- mended Order, as well as at various other points in the judge's decision, he indicated that the Respond ent had violated Section 8(a)(3) and (1) not only by refusing to reinstate 20 sympathy strikers who signed an unconditional offer to return to work on August 8, 1982, but also by discharging these indi- viduals Although Administrator Archer's testimo- ny and the parties' arguments on brief are incon sistent in sometimes characterizing the Respond- ent's actions as replacing and refusing to reinstate and sometimes characterizing them as termination 6 the relevant complaint allegations and the prepon- derance of the testimony indicate that the Respond- ent did not discharge the strikers but did view them as replaced Accordingly, we shall modify the judge's conclusions of law and recommended Order by deleting references to the unlawful dis- charge of the strikers Consistent with the foregoing modification, the Respondent excepts to the judge's remedial recom- mendations requiring it to offer the 20 discrimina tees immediate reinstatement and backpay dating from their August 8, 1982 offer to return to work In accord with precedent governing the rights of these strikers,7 the Respondent's argument that it should be required only to honor a hiring prefer- ence for the strikers would be meritorious if it had proved that all 20 discriminatees had been perma- nently replaced prior to their offer to return to work and remained replaced thereafter 6 For instance in addition to the testimony referred to in sec 1 above Archer testified as follows in response to leading cross examination by counsel for the General Counsel Q You testified that all of these members of the Grievance Com mittee who didn t come in on the first two days of the strike were replaced- A Um hum- Q -under the contract A Yes sir Q I mean they were terminated A They were replaced on the job yes Q The contract gave you a right to terminate them A They voluntarily quit their job as far as we were concerned Q So you terminated them A Its a matter of semantics I would assume so yes [Tr 191- 192 ] 7 La,dlaw Corp 171 NLRB 1366 (1968) enfd 414 F 2d 99 (7th Cir 1969) cert denied 397 U S 920 (1970) BRISTOL CONVALESCENT HOME According to the record, however, only nine of these individuals had undisputedly been replaced as of August 8, 1982 8 Further, Archer admitted and uncontroverted documentary evidence substantiates that from August 17, 1982, until no later than Janu- ary 17, 1983, the Respondent hired 21 new employ- ees as nurses aides, the job classification for posi- tions held by the replaced employees For reasons set forth in the judge's decision, we agree that the alleged legitimate reasons for refusing to consider the former sympathy strikers for reinstatement were pretextual Accordingly, we affirm the judge's conclusion that the Respondent unlawfully refused to reinstate 20 sympathy strikers9 who of fered to return to work, and we adopt his recom- mendation that the Respondent must offer each dis- criminatee immediate reinstatement We shall leave to compliance proceedings, however, for purposes of computing the initial date of the backpay period, the determination of when the Respondent should have reinstated those nine discriminatees who had been replaced by August 8, 1982 10 AMENDED CONCLUSIONS OF LAW I Substitute the following for Conclusion of Law 5(a) "(a) Refusing to reinstate the following named employees because they refused to cross a picket line established by CSFT on June 14, 1982 Stuart Hutchins, Robert Piring, Abraham Pearson, Donna Parenti, Helen Swanson, Virginia Briggs, Dorothy Coppola, Brenda Eastman, Carrol Edwards, Susan Gennett, Nelly Goff, Heidi Kottke, Jean Perkins, Ann Marie Skorupski, Maureen Soucy, Susan Thi bodeau, Anna Marie Ross, Lisa Belanger, Geneva Earls, and Janice Palance " 8 G C Exh 6 a document provided by the Respondent and authenti cated by Archer lists the following as having been replaced Donna Par enti Helen Swanson Virginia Briggs Dorothy Coppola Susan Gennett Heidi Kottke Jean Perkins Ann Mane Skorupski and Susan Thibodeau Although that document also lists discnminatee Abraham Pearson as having been replaced by Karen Fellows on June 15 1982 Archer testi fled that Fellows became recreation director in July (replacing Marilyn VanBeveren whom the Respondent unlawfully discharged a month later) Consequently the evidence indicates that Pearson s position was vacant on August 8 8 Although the complaint alleged the names of an additional five indi viduals as sympathy striker discnminatees there are no exceptions to the judge s exclusion of these individuals because they did not sign the offer to return to work and there is no specific evidence identifying any of them as participants in the sympathy strike There also are no exceptions to the judge s failure to include as discnminatees the names of two mdi viduals who signed the offer to return to work but were not alleged as discnmmatees in the complaint 10 In accordance with our decision in New Horizons for the Retarded 283 NLRB 1173 ( 1987) interest on and after January 1 1987 shall be computed at the short term Federal rate for the underpayment of taxes as set out in the 1986 amendment to 26 U S C § 6621 Interest on amounts accrued prior to January 1 1987 (the effective date of the 1986 amendment to 26 U S C § 6621) shall be computed in accordance with Florida Steel Corp 231 NLRB 651 (1977) 627 2 Delete the reference to Section 8(a)(5) in Con clusion of Law 6 ORDER The National Labor Relations Board orders that the Respondent, Bristol Convalescent Home, Inc, Bristol, Connecticut, its officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Doing any of the following things in order to induce employees to reject any labor organization as their collective-bargaining representative or to abandon a strike promising increased wages, pen- sion benefits, job security, and improved working conditions, threatening employees with closure of the business, and soliciting employees to support a company union (b) Refusing to pay accrued vacation pay to striking employees or to employees who honor their picket line (c) Discharging employees who actively support their Union (d) Refusing to reinstate employees, after their unconditional offer to return to work, because they refused to cross the picket line set up by other striking employees (e) Refusing to bargain collectively with the Bristol Convalescent Home Grievance Committee by refusing its request to supply relevant informa- tion needed by it to perform its duties as collective bargaining representative of the employees in the following appropriate unit All service and maintenance employees, in- cluding employees in the dietary department, nursing department, housekeeping department, maintenance department, laundry department and administrative aides, recreation directors, patient care coordinator, administrator's aide, but excluding registered nurses, licepsed prac tical nurses, clericals, supervisors and guards, as defined in the National Labor Relations Act (f) Unilaterally and without consent of the Bris- tol Convalescent Home Grievance Committee fail- ing and refusing to remit dues deducted from em- ployees' paychecks pursuant to the provisions of the collective-bargaining agreement between the Respondent and the Committee (g) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act 2 Take the following affirmative action neces- sary to effectuate the policies of the Act 628 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (a) Offer Marilyn VanBeveren, Stuart Hutchins, Robert Piring, Abraham Pearson, Donna Parenti, Helen Swanson, Virginia Briggs, Dorothy Cop- pola, Brenda Eastman, Carrol Edwards, Susan Gennett, Nelly Goff, Heidi Kottke, Jean Perkins, Ann Marie Skorupski, Maureen Soucy, Susan Thi- bodeau, Anna Marie Ross, Lisa Belanger, Geneva Earls, and Janice Palance immediate and full rein statement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed, and make them whole for any loss of earnings and other ben- efits suffered as a result of the discrimination against them in the manner set forth in the attached judge's decision, as modified in this decision (b) Remove from its files any references to the unlawful discharge of Marilyn VanBeveren and to the unlawful refusal to reinstate any of the other employees named in paragraph 2(a) of this Order, and notify them in writing that this has been done and that evidence of these unlawful actions will not be used against them in any way (c) Pay all accrued and unlawfully withheld va cation pay owing to the following employees with interest computed in the manner set forth in this decision Barbara Belanger Claudia Connelly Sandra Festa Carol Malteius Robert Piring Helen Swanson Brenda Eastman Nelly Goff Maureen Soucy Anna Mane Ross Janice Palance Marilyn Poirer Joanne Houle Linda Dorman Eva Sheets Abraham Pearson Tanya Sakowski Mabel Hallstein Clara Posa Stuart Hutchins Donna Parenti Dorothy Coppola Carrol Edwards Heidi Kottke Ann Marie Skorupski Lisa Belanger Virginia Briggs Susan Gennett Jean Perkins Susan Thibodeau Geneva Earls (d) Furnish, in timely and updated fashion, to the Bristol Convalescent Home Grievance Committee, the following information that it has requested and that is relevant to its duties as collective-bargaining representative the names, dates of hire, titles, or names of positions and rates of pay for all individ- uals hired into the above-described bargaining unit since June 1, 1982, as well as the amount of dues deducted for each bargaining unit employee since that date (e) Remit to the Bristol Convalescent Home Grievance Committee all union dues deducted from the paychecks of employees in the above-de scribed bargaining unit since the date of the last such remittance with interest computed in the manner set forth in this decision (f) Preserve and, on request, make available to the Board or its agents for examination and copy- ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order (g) Post at its facility in Bristol, Connecticut, copies of the attached notice marked "Appen dix "i i Copies of the notice, on forms provided by the Regional Director for Region 34, after being signed by the Respondent's authorized representa tive, shall be posted by the Respondent immediate ly upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted Reasonable steps shall be taken by the 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 Respondent has taken to comply " 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 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 do any of the following things in order to induce employees to reject any labor orga- nization as their collective-bargaining representa- tive or to abandon a strike promising increased wages, pension benefits, job security, and improved working conditions, threatening employees with closure of the business, and soliciting employees to support a company union WE WILL NOT refuse to pay accrued vacation pay to striking employees or to employees who honor their picket line WE WILL NOT discharge employees who actively support their Union BRISTOL CONVALESCENT HOME WE WILL NOT refuse to reinstate employees, after their unconditional offer to return to work, because they refused to cross the picket line of other striking employees WE WILL NOT refuse to bargain collectively with the Bristol Convalescent Home Grievance Com- mittee by refusing its request to supply relevant in- formation needed by it to perform its duties as col lective-bargaining representative of the employees in the following appropriate unit All service and maintenance employees, in- cluding employees in the dietary department, nursing department, housekeeping department, maintenance department, laundry department and administrative aides, recreation directors, patient care coordinator, administrator's aide, but excluding registered nurses, licensed prac- tical nurses, clericals, supervisors and guards, as defined in the National Labor Relations Act WE WILL NOT unilaterally and without the con- sent of the Bristol Convalescent Home Grievance Committee fail and refuse to remit dues deducted from employees' paychecks pursuant to the provi- sions of the collective bargaining agreement be- tween the Respondent and the Committee WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer cise of the rights guaranteed you by Section 7 of the Act WE WILL offer to Marilyn VanBeveren, Stuart Hutchins, Robert Piring, Abraham Pearson, Donna Parenti, Helen Swanson, Virginia Briggs, Dorothy Coppola, Brenda Eastman, Carrol Edwards, Susan Gennett, Nelly Goff, Heidi Kottke, Jean Perkins, Ann Marie Skorupski, Maureen Soucy, Susan Thi- bodeau, Anna Mane Ross, Lisa Belanger, Geneva Earls, and Janice Palance immediate and full rein- statement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights and privileges previously enjoyed and WE WILL make them whole for any loss of earnings and other benefits resulting from discrimination against them, less any net interim earnings, plus in- terest WE WILL remove from our files any references to the unlawful discharge of Marilyn VanBeveren and to the unlawful refusal to reinstate any of the employees listed above and we will notify all of these employees in writing that this has been done and that these unlawful actions will not be used against them in any way WE WILL pay all accrued and unlawfully with- held vacation pay with interest owing to Barbara Belanger Claudia Connelly Sandra Festa Carol Malteius Robert Piring Helen Swanson Brenda Eastman Nelly Goff Maureen Soucy Anna Marie Ross Janice Palance Marilyn Poirer Joanne Houle Linda Dorman Eva Sheets Abraham Pearson Tanya Sakowski Mabel Hallstein Clara Posa Stuart Hutchins Donna Parenti Dorothy Coppola Carrol Edwards Heidi Kottke Ann Mane Skorupski Lisa Belanger Virginia Briggs Susan Gennett Jean Perkins Susan Thibodeau Geneva Earls 629 WE WILL furnish, in timely and updated fashion, to the Bristol Convalescent Home Grievance Com- mittee, the following information that it has re quested and that is relevant to its duties as collec- tive-bargaining representative the names, dates of hire, titles, or names of positions and rates of pay for all individuals hired into the above-described bargaining unit since June 1, 1982, as well as the amount of dues deducted for each bargaining unit employee since that date WE WILL remit to the Bristol Convalescent Home Grievance Committee all union dues deduct- ed from the paychecks of employees in the above- described bargaining unit since the date of the last such remittance with interest BRISTOL CONVALESCENT HOME, INC Otto P Witt Esq, for the General Counsel Auerbach Labes & Woicik of New York New York for the Respondent HAROLD B LAWRENCE Administrative Law Judge This case was tried before me on April 4 and 5, 1983 at Hartford Connecticut The consolidated complaints are based on charges filed against the Respondent, Bristol Convalescent Home Inc, by the Connecticut State Fed eration of Teachers/Federation of Nurses and Health Professionals, AFT/AFL-CIO (CSFT) on September 9 and December 21, 1982, and by the Bristol Convalescent Home Grievance Committee (the Grievance Committee) between September 16 and December 21, 1982 CSFT charges the Respondent with having violated Section 8(a)(1) of the National Labor Relations Act (the Act) by promising its members increased wages and ben efits and threatening them with shutdown of the facility in order to induce them to abandon a strike and their Union, and with soliciting their support for a company union, and with violation of Section 8(a)(1) and (3) of the Act by refusing to pay its members who went on strike their accrued vacation pay 630 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The Grievance Committee charges the Respondent with having violated Section 8(a)(1) and (3) by refusing to reinstate and pay accrued vacation pay to those unli censed employees who refused to cross the CSFT picket line with having violated Section 8(a)(3) and (1) by firing an official of the Grievance Committee, and with violations of Section 8(a)(5) and (1) by unilaterally ceas ing the remittance of Grievance Committee dues deduct ed from paychecks and by refusing to furnish informa tion requested by the Grievance Committee The Respondent denied all allegations of wrongdoing and statutory violation and raised affirmative matter by way of defense in various of its answers (except in Case 39-CA-1315), as follows that Respondent is in reorgani zation under Chapter 11 of the Bankruptcy Act, that it doubts in good faith that the Grievance Committee rep resents a majority of the bargaining unit consisting of the unlicensed service and maintenance employees, that the information requested in the Grievance Committees re quest for information, dated November 4, 1982, was not timely, and the contract between Respondent and Union was extended for a year, pursuant to contractual provi sions, that the employees who failed to cross the CSFT picket line did so because of their fear of harassment and violence, that the employees who failed to cross the picket line have been lawfully replaced, that the employ ees who failed to cross the picket line did so in violation of the collective bargaining agreement governing their employment that the offer to return to work made by the employees who honored the picket line was not un conditional that an intervening state law disqualified them from returning to the jobs that they had aban doned The parties were afforded full opportunity to be heard to call examine and cross examine witnesses and to in troduce any relevant evidence Posthearing briefs have been filed by the General Counsel and the Respondent On the entire record and based upon my observation of the witnesses and consideration of the briefs submit ted I make the following FINDINGS OF FACT I JURISDICTION There is no issue as to jurisdiction The complaints allege and the Respondent admits, and I find that the Respondent is a Connecticut corporation that operates a health care institution consisting of a nursing home in Bristol, Connecticut, providing inpatient medical and professional care services During the calendar year ending December 31, 1982, it derived gross revenues in excess of $100,000 and received, at Bristol products, goods, and materials valued in excess of $5000 directly from points outside the State of Connecticut and at all pertinent times has been engaged in commerce within the meaning of Section 2(2) (6) and (7) of the Act It is alleged, admitted and I find that CSFT and the Grievance Committee at all material times have been and are labor organizations within the meaning of Section 2(5) of the Act II THE ALLEGED UNFAIR LABOR PRACTICES A General Statement of the Facts' The Respondent operates a nursing home in Bristol, Connecticut Harry Ostreicher is one of the principals of the owning corporation which is the Respondent in these proceedings Elizabeth Archer is the Respondent s administrator Beverly Perugmi is the director of nurs mg The Grievance Committee is the collective bargain ing representative and has entered into a series of collec tive bargaining agreements with Respondent the latest of which was in effect throughout the calendar year 1982 on behalf of a unit defined therein as follows All service and maintenance employees , including employees in the dietary department , nursing de partment, housekeeping department maintenance department, laundry department and administrative aides, recreation directors patient care coordinator, administrators aide, but excluding registered nurses, licensed practical nurses, clericals, supervisors and guards, as defined in the National Labor Relations Act CSFT began an organizational campaign and on June 14 commenced a strike against the Respondent 2 Twelve of its members participated in the strike and a picket line was set up across the entrance to the nursing home On August 11, Ostnecher left the nursing home by a side exit and was hailed by some of the nurses on the picket line as he was getting out of his car He called back to them and about half a dozen of them crowded around his car A conversation ensued in which he made a number of statements the substance of which was as follows if the nurses abandoned their union they could have an in house union and he would be their repre sentative he would fire anyone they wanted fired, he would give them all sorts of raises and bene fits he would never recognize the Union he had set aside their vacation pay and they could have it back if they came inside they would get retroactive raises, if they wanted a pension, they could have a pen lion, they should take off the picket signs because he would never recognize the Union, they would never get back into the nursing home as long as they belonged to that or any other union, if they wished, he would bring back a pharmacist whom they knew who was no longer employed at the home and he would fire the Director of Nurs ing if they wanted more money they could have it ' The facts of the case are a narrative composite of the undisputed and credited testimony admissions in the answers and data contained in the exhibits 2 All references to dates refer to dates in 1982 unless otherwise stated BRISTOL CONVALESCENT HOME 631 Ostreicher s reference to their getting back vacation pay was a reference to the fact that accrued vacation pay had not been paid to certain strikers despite request On the hearing it was stipulated that under the vacation policy of the Respondent employees received 2 weeks vacation after 1 year of employment and 3 weeks after 5 years, that in computing the amount accrued the current year is excluded, vacation being based on service through the preceding year, prior to these proceedings, a charge was filed (Case 39-CA-1279) but settled by an agreement for payment of vacation pay to six nurses who were participating in the strike who had put in their va cation requests prior to the start of the strike By letter dated December 3, CSFT demanded pay ment of accrued vacation pay and sick pay for the other nurses, both the registered nurses and the licensed practi cal nurses The Respondent made no reply to the re quest Two weeks before the strike, Archer summoned the entire first shift to a meeting at the nursing home It was attended by all department heads, administrative person nel, and all nonlicensed personnel Archer informed the meeting that the nurses were planning to go on strike and that if they wanted to protect their jobs, they had better show up for work 3 Police protection for those crossing the picket line was promised by Archer About 4 days before the strike, she called another meeting and told them that protection would be provided by a pn vate security agency employed by the Respondent, em ployees would be provided with name tags and a van would pick them up at locations to be disclosed later Those walking should on approaching the crossing to the nursing home, await a signal before starting across On the Friday evening before the strike, a majority of the members of the Grievance Committee, i e, the unli censed personnel, met at the Bristol Regional High School for the purpose of determining the course to be taken by the Grievance Committee during the strike Be tween 95 and 120 persons attended Abraham Pearson, the chairman of the Grievance Committee, described the discussion as follows Q And, was there any decision made at that meeting as far as the strike? A No well we left it up to each individual If they wanted to go in-a lot of people asked ques tions where was the van going to be and, you know a few people said that they were going in be cause they had mortgages to pay and, you know, it was just an open discussion on what could happen, you know Q Was there any vote taken by the grievances committee? A Well we had asked how many people were going to cross the picket line and the majority of the people raised their hands and very few didn t raise their hands And, you know we didn t take any tally of any votes 3 According to Hutchins the group was told that we had a contrac tual agreement that we would not go on strike that we could lose our jobs if we didn t you know play by the rules The testimony of Stuart Hutchins, another officer of the Grievance Committee, was to the same effect, de scribing the actions of the meeting as a vote not to strike and a vote not to honor the picket line On the first day of the strike , however, although an es timated 80 percent of the membership of the Grievance Committee entered the nursing home, mostly in the van provided by the Respondent or by driving their own cars through the picket line, a group of approximately 25 who showed up at the normal time , dressed for work, nevertheless remained across the street with the picket ing nurses The reasons for this will be examined in some detail below Pearson attempted to arrange a meeting with Archer and made one telephone call to her on each of the first 2 days of the strike She told him she was ex tremely busy and no meeting was set up On the third day a group of officers of the Grievance Committee- Pearson, Hutchins, and Robert C Piring-crossed the picket line and attempted to enter the nursing home At the door, they were waived off by Archer, turned around and went back across the street Thereafter, the group of unlicensed employees who had not entered the home on the first day of the strike remained away from work, and Archer filled 12 of their jobs with new ap pointees Union dues were apparently deducted from their wages and deductions from the wages of other unli censed employees pursuant to the dues checkoff system provided for in the collective bargaining agreement were continued However, though Respondent continued de ducting union dues from employees paychecks, it stopped forwarding the money to the Grievance Com mittee By letter dated August 9 , admittedly received by Respondent on August 12, turnover of the funds was re quested Dear Ms Archer, We The Bristol Convalescent Home Grievance Committee, would like you to submit the names, date of hire titles and/or names of positions and rate of pay of all individuals hired in our Bargaining Unit since 6/1/82 and thereafter For the sole purpose of making sure these people are paying union dues We would appreciate it if you would remit our union checks, effective as of 6/14/82 to present Please send immediately to this address c/o Abraham Pearson 13 Dwight St Bristol Ct 06010 Respectfully Yours /s/ Abraham Pearson Thank You The Respondent did not answer this letter and provid ed none of the information requested No remittance was made The Respondent also failed to respond to demands for payment of accrued vacation pay served by the Griev ance Committee on November 4 on behalf of unlicensed employees who had honored the picket line and by CSFT on December 3, on behalf of certain striking 632 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD nurses 4 In settlement of a charge filed with the National Labor Relations Board, the Respondent had paid the ac crued vacation pay of those nurses who put in for it before June 14, but has refused to make payment in the case of those nurses who had not done so by the time the strike started On August 12 the Grievance Committee sent Archer a letter signed by 22 members of the Grievance Commit tee asserting that they were not on strike and were will ing to return to work, unconditionally 5 No response was made by Respondent to this demand for reinstatement The final matter in contention is the discharge of Man lyn VanBeveren for theft of company property VanBe veren returned from sick leave in July to find that her post as recreation director was no longer available During her absence, Pearson had worked out an arrange ment with Beverly Perugini under which VanBeveren would come back in as a nurses aide trainee At the time of VanBeveren s return, her regular position was not being filled, and two applicants were waiting for it to open up VanBeveren decided she did not wish to train as a nurses aide and, at her own request, she was laid off so that she could collect unemployment insurance pay ments She subsequently changed her mind and began a course as a nurses aide trainee on August 9 This in volved attending a class for 4 hours each day On her second day at Pearson s request she picked up an em ployee suggestion box from the staff dining room and placed it in the trunk of her car Perugini saw her doing it, summoned her on the loudspeaker system, and de manded that she bring the box back VanBeveren told her Pearson had said it belonged to the Grievance Corn mittee Perugini said it was property of the nursing home VanBeveren went back to her car, got it, and * Accrued vacation pay was demanded by CSFT for Barbara Belanger Claudia Connelly Sandra Festa Joanne Houle Linda Dorman Tanya Sakowski Mabel Hallstein Clara Posa Eva Sheets Clara Malteius and Marilyn Poirer Amounts claimed to be due to each of these were set forth in a schedule enclosed with the demand With respect to Sheila Sugrue no specific amount was demanded but Respondent was request ed to furnish information as to her hours and the amount owed to her so that claim could be made for payment of the same Demand for payment to her was withdrawn by the General Counsel The Grievance Commit tee made demand on behalf of its members who honored the picket line 5 The letter of August 8 1982 asserts that the officers of the Gnev ance Committee who attempted to enter the Home to see Archer on June 16 wanted to speak to her were concerned about the pushing and shov ing and other incidents and were afraid to cross the picket line The clear meaning of the letter is that that was the proposed subject of the meeting they wanted to have with Archer The request for permission to return to work is itself unconditional It states We are not on strike and are willing to return to work unconditionally The balance of the letter sets forth no condition regarding their return The signatories to the letter are described with the words Here is a list of all personal (sic] wishing to return to work The signatories are Susan Gennett Jean H Perkins Virginia Briggs Robert C Piring Stuart Hutchins Abraham Pearson Donna Parenti Helen Swanson Lisa Belanger Dorothy Cop pola Geneva Earls Brenda Eastman Carol Edwards Nellie Goff Heidi Kottke Anne Mane Skorupuski Suzanne Thibodeace Maureen Soucy Anna Mane Ross Sharon Dufour and Janice Palance One signature is illegible (it looks like Bnere Roy) Several names alleged in the complaint are not on the letter Caty Vandenheubal Sherri Riley Telschea De Mens Regina Syr and Carne Kolbioki Signatories to the letter who are not named in the complaint are Sharon Dufour and the party whose name appears to be Roy Other than the demand for reinstatement there is no evidence in the record identifying all the unlicensed employees who refused to cross the picket line and were denied reinstatement and pay ment of accrued vacation pay handed it over to Perugini On August 11, VanBeveren was summoned to a meeting with Archer and Perugini, was told that by taking the box she had broken every rule of the nursing home, and was terminated for theft of nursing home property B Promises Threats and Solicitation by Ostreicher The pickets who testified concerning the conversation with Harry Ostreicher on August 11 clearly indicated that they had greeted his rather extravagant promises with skepticism, derision, and banter They did not be leeve him and they told him so Though he invited them to come into the nursing home the next day to talk to him none of them accepted his invitation Repeated invi tations were also declined The Respondent contendss that the nurses' testimony clearly shows that he was kidding around and suggests that therefore no liability should attach to his statements That defense is untenable as a matter of law and as a matter of fact The nurses may have been kidding around, but I fail to see any evidence that he was joking He appears to have persisted in pressing his arguments on them in the face of their sarcasm The fact that the nurses did not take him seriously does not mean that he was not seriously attempting to induce them to abandon the strike and give up the CSFT by making a combing tion of threats and promises In fact unlike the situation regarding the promises, there is nothing in the record re garding the nurses reaction to the threats Only the threats themselves are in evidence There is consequently nothing on which a finding that they were made in jest can be based (assuming, indeed, that that would be a de fense) We know only the nurses' frame of mind In the ab sence of evidence respecting Ostreicher s state of mind when he made the threats and promises the contention of the Respondent that they were not advanced seriously is unsupported Ostreicher did not testify, leaving the nurses testimony wholly uncontroverted and requiring that I draw an inference unfavorable to the Respondent from his failure to appear and explain the circumstances The interpretation of the statements made by him must therefore be literal as any other interpretation would be speculative It is of no importance who started the conversation because in the circumstances of this encounter, that cannot affect the character of the statements as threats and promises My conclusion that Ostreicher s proposals and threats were made with serious intent is of significance in con nection with my analysis below of the evidence relating to Respondents motive in withholding payment of ac crued vacation pay from strikers and other employees who honored their picket line In connection with the matter here under discussion however the law is clear that Ostreicher s intentions are irrelevant and even if I had reached a different finding regarding them the lack 6 Respondents postheanng Br 3 BRISTOL CONVALESCENT HOME 633 of serious intent would not be available to the Respond ent as a defense 7 Accordingly, I find that the statements testified to by the pickets were made by Ostreicher and violated Sec tion 8(a)(1) of the Act C Refusal to Pay Accrued Vacation Pay to Nurses and Unlicensed Employees Who Honored the Picket Line Though the Respondent settled a proceeding brought before the National Labor Relations Board by some of the nurses who had put in for their vacations prior to the commencement of the strike, by agreeing to pay their ac crued vacation pay, it has steadfastly refused to make payment of accrued vacation pay to those nurses who applied for their vacation pay after June 14 and to mem bers of the Grievance Committee who honored the nurses picket line on June 14 and thereafter There is no issue of fact respecting such nonpayment and entitlement is not an issue in these proceedings Archer expressly tes tified that the Respondent recognizes its obligation to pay the accrued vacation pay questions only whether all of those named in the complaint in Case 39-CA-1471 are entitled to it It appears that some of the nurses may have taken their vacations Nevertheless, Archer offered no information that would have clarified the issue In the case of Sheila Sugrue, Archer had failed to furnish infor mation requested by CSFT, which claimed both vacation benefits and sick pay for her, and similarly failed to clan fy the matter at the hearing The issue in this proceeding is whether the Respond ent's failure to make payment to date constitutes an unfair labor practice The Respondent contends that it has not violated the Act because nonpayment was not a result of discrimination against employees or former em ployees on account of their engagement in protected ac tivities but was due entirely to the serious financial plight of the Respondent Archer testified that in Octo ber cash flow was adequate enough to enable the Re spondent to agree to pay the vacation pay owed to the six nurses who filed charges with the Board Monthly payments through March 1983 were arranged with them and according to Archer, it was the Respondent's inten tion to pay all of such obligations thereafter However, reduction in the number of beds caused a drastic increase in Respondents cash flow, making further payments im possible This contention fails legally and factually That the Respondent refused to pay accrued vacation benefits as a reprisal against the strikers and those who honored the picket line is abundantly clear from the simple fact that June 14, the day the strike started, was the demarcation line between who got their money and who did not, from the fact that, when pressed in a proceeding brought before the Board, Respondent found the money to pay it, and from the fact that Ostreicher explicitly promised the nurses who were picketing on August 11 that if they would abandon the strike and the Union he would, among other things, give them their vacation pay 8 Even if the Respondent's actions had been prompted by severe financial troubles (and I have no doubt that the existence of an excuse not to meet this expense was welcome), its unilateral failure to honor its vacation pay obligation in accordance with the collective bargaining agreement constitutes a violation of the Act, being dis crimination in its simplest form' and requiring the Em ployer in such circumstances to come forward with 'evi dence of legitimate motives' for the failure to pay, spec ulation on its motives being insufficient 9 Section 8(a)(1), (3), and (5) of the Act are violated, for what is involved is unilateral alteration of the wage scale 1 0 In language which clearly embraces the circumstances of this case, the Board has set out the rationale as follows It cannot be gainsaid that an employer's decision in midterm of a contract to pay its employees for the remainder of the contracts terms at wage rates below those provided in the collective bargaining agreement affects what is perhaps the most impor tant element of the many in the employment rela tionship which Congress remitted to the mandatory process of collective bargaining under the Act Be cause so substantial a portion of the remaining as pects of a bargaining contract are dependent upon the wage rate provision, it seems obvious that a clear repudiation of the contracts wage provision is not just a mere breach of the contract, but amounts as a practical matter, to the striking of a death blow to the contract as a whole and is thus in reality, a basic repudiation of the bargaining relationship We believe the jurisdiction granted as under the Act clearly encompasses not only the authority but the obligation to protect the statutory process of collec tive bargaining against conduct so centrally disrup tive to one of its principal functions-the establish ment and maintenance of a viable agreement on wages Turning to the merits, Respondent alleges there is no room in the facts for any finding that its conduct violated the good faith bargaining standards im posed upon it by the Act It urges, in this respect, that its sole motive and intent in reducing wages was to meet an economic crisis, that its action in fact had the salutary effect of preserving for em ployees jobs they would otherwise have lost and that it advised the Union fully of all the reasons for 7 Motive is irrelevant to a finding of violation of Sec 8 (a)(1) the Act is violated if the employers statement would reasonably tend to interfere with the free exercise of employees rights under the Act regardless of whether the employer meant statements as threats or whether employees actually felt threatened See Marion Rohr Corp 261 NLRB 971 977 fn 5 (1982) (friendly and humerous threats in presence of other unfair labor practices cannot be ignored ) Poletti s Restaurant 261 NLRB 313 (1982) El Rancho Market 235 NLRB 468 (1978) enfd mem 603 F 2d 223 (9th Cir 1979) 8 The nurses skepticism and the contention of Respondents counsel that Ostreicher was not serious did not preclude me from finding that he made the statements attributed to him with the serious intent of inducing them to abandon the strike and I have found Consequently his promise respecting the vacation pay is one of the factors that ought to be consid ered in ascertaining the reason why payment was withheld 9 NLRB v Great Dane Trailers 388 U S 26 32 (1967) io Nassau County Health Assn 227 NLRB 1680 (1977) Oak Cliff Golman Baking Co 207 NLRB 1063 (1973) 634 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD its action and of the financial facts supporting it We have no doubt that Respondents description of its motive and its object is a truthful one But we have here a situation where these considerations are irrelevant The unambiguous language of Section 8(d) of the Act explicitly (1) forbade Respondent's midterm modification of the contracts wage provi lions without the Union s consent, and (2) granted the Union the privilege it exercised to refuse to grant consent Nowhere in the statutory terms is any authority granted to us to excuse the commis sion of the proscribed action because of showing either that such action was compelled by economic need or that it may have served what may appear to us to be a desirable economic objective To borrow the words of the Supreme Court, what must here be recognized is that [t]he law is its own measure of right and wrong, of what it permits, or forbids, and the judgment of the courts [and of the Board] cannot be set up against it in the supposed accommodation of its policy with the good inten tion of parties and, it may be, of some good re sults Standard Sanitary Mfg Co v US, 226 U S 2049 From all this, it follows that Respondent s unilateral modification of the wage provisions of its contract violated Section 8(a)(5) and (1) of the Act as alleged 11 In the present case the Respondent has attempted to modify the contract unilaterally without either notice to or discussion with the Grievance Committee resulting in a clear violation of Section 8(a)(1) (3) and (5) of the Act 12 D Refusal to Remit Dues and Furnish Information Respondents violation of Section 8(a)(5) of the Act by reason of its failure to remit dues to the Grievance Com mittee and by reason of its failure to provide the Griev ance Committee with certain requested information is clearly established 13 The evidence is uncontroverted that the Respondent has continued to collect union dues from members of the unit of unlicensed employees cov eyed by its collective bargaining agreement with the Grievance Committee Its power and authority to do so derives from the collective bargaining agreement Never theless it has made no remittance to the Grievance Com mittee since May 1982 At the hearing, Archer explained the failure to make remittance by asserting that she did not know to whom I I Oak Cliff Golman Baking Co 207 NLRB 1063 1064 (1973) enfd mem 505 F 2d 1302 (5th Cir 1974) 12 A violation of Sec 8(a)(5) is found pursuant to the unopposed motion of counsel for the General Counsel made at the conclusion of the hearing to conform the pleadings to the proof Decision was reserved because of lack of specificity with respect to the conformance The motion is granted to the extent that the conduct of the Respondent in failing to make payment of accrued vacation pay to sinkers and employ ees honoring their picket line regarding which the facts were fully liti gated at the hearing and were substantially admitted by the Respondent constitute violation of Sec 8(a)(5) of the Act as well as Sec 8(a)(1) and (3) and the complaints in Cases 39-CA-1419 39-CA-1420 and 39-CA- 1471 are deemed amended accordingly 13 Merryweather Optical Co 240 NLRB 1213 (1979) or where to send the money She testified, I am await ing instructions 14 This is a highly unsatisfactory expla nation, in view of the lack of any evidence whatsoever that she attempted to find out, in view of the explicit provisions of the collective bargaining agreement provid ing that all dues, assessments, and other moneys withheld from employees shall be transmitted to the Grievance Committee by the 15th day of the month following the month in which the money is collected, and in view of the very clear and precise instructions contained in the demand for remittance dated August 8, which is quoted in full in the statement of the facts of this case With respect to the charge that the Respondent failed to furnish the information requested in that same demand, the Respondent offered no evidence whatsoever to controvert the evidence that the information had been requested and that no response had been furnished Re spondent has addressed the issue only by denying knowl edge or information sufficient to form a belief as to the allegations that the information had been requested and not furnished while alleging affirmatively that the demand was untimely The information sought is of the type needed to enforce compliance with the terms of the collective bargaining agreement The letter to Archer stated, For the sole purpose of making sure these people are paying union dues It is therefore presump tively relevant,15 but the Respondent has made no at tempt to show that there is in fact no need for the infor mation or questioned the Grievance Committees right to have it Respondent's failure to furnish the information impedes the objective of enforcing the collective bar gaining agreement 16 The notion expressed that the re quest for information regarding collection of union dues was not timely ignores the obligation of the Respondent to furnish information required to enforce the agreement though the agreement had been extended for a year and no negotiations were pending the information was still presumptively relevant Because of the actions of the Re spondent in replacing employees hiring new employees, and failing to remit union dues while continuing to col lect them an actual need would appear to have been demonstrated The doubt expressed in one of the Re spondent s answers whether the Grievance Committee represents a majority of the bargaining unit was not 14 Counsel for the Respondent has argued that Respondent lacks quali fication to determine the original owner as between the two groups (Respondent s Postheanng Br p 9) No identification is made of the groups referred to and there is no evidence that any group other than the Grievance Committee is entitled to or claims to be entitled to all or any portion of the funds collected from the employees by the Respondent A bare assertion by Archer that 80 percent of the unlicensed employees and members of the unit crossed the picket line and have been working in no way raises any question as to the right of the Grievance Committee to receive the union dues collected pursuant to the collective bargaining agreement in which it is the exclusive bargaining representative of the unit 15 In Georgetown Holiday Inn 235 NLRB 485 486 (1978) the Board noted However it is well settled that the names and addresses of unit employees like wage data are presumptively relevant to the Union s role as bargaining agent either during contract negotiations or during the terms of an agreement Hence no showing of particularized need was necessary 16 Boston Herald Traveler Corp 110 NLRB 2097 (1954) enfd 223 F 2d 58 (1st Cir 1955) BRISTOL CONVALESCENT HOME backed up by any evidence which would require that I ignore the fact that there is a subsisting collective bar gaining agreement in effect between the Respondent and the Grievance Committee Consequently, I find that the Respondent has violated Section 8(a)(5) of the Act by its refusal to remit the union dues collected and by its refusal to furnish the in formation requested E Termination of Marilyn VanBeveren The reason given for the discharge of Marilyn VanBe veren who was secretary of the Grievance Committee was that she stole a suggestion box Archer testified that there was no other reason for her discharge The expla nation furnished by Beverly C Perugini, the director of nursing services, sounded like a prepared statement for the record rather than a statement of the actual reasons for the discharge Q Why was she terminated? A The employees suggestion box belongs to all employees Since eighty per cent were in the build ing, the box basically belonged to the majority of the employees of Bristol Convalescent Home Q Why did you decide to terminate her? A Its a violation of the personnel policy Any stealing of property-it s one of the conditions of discharge under the personnel policy of our facility JUDGE LAWRENCE Were you offered any expla nation as to why she took the suggestion box? THE WITNESS Because she thought it belonged to the Union Eighty percent of the union members were still in the building Archer, who made the decision to fire VanBeveren testified that the suggestion box was an employees sug gestion box, it was removed from the employees staff dining room that immediately on its removal the Di rector of Nurses asked her to return it which she did, and then we had a meeting the next day with one of the in house grievances representatives with us " VanBever en s explanation that she had been asked to remove it by Pearson, that she thought it belonged to the Grievance Committee and that she complied immediately with Per ugini's demand for return of the box, seems to have fallen on deaf ears She was fired for taking the box out to her car According to Archer the suggestion box had been in stalled at Pearson s request for the benefit of the employ ees to collect suggestions for what she termed general facility benefit " Archer said she had a key for it, but ad mitted that the contents of the box had never been re moved by anybody to her knowledge from the time of its installation a year before the incident with VanBe veren When asked whether there existed any arrange ment for emptying the box from time to time, she con ceded that Pearson as head of the Grievance Commit tee, was supposed to do it and that he was supposed to monitor the contents of the box for whatever purposes the Grievance Committee wanted In spite of this testimony Archer insisted that VanBe veren was discharged for removing facility property 635 It was facility property, in the facility, attached to the physical plant of the facility " This inappropriate in vocation of the law of fixtures was followed by asser tions on her part that she had a key to the box and that from time to time she opens the box to read the employ ees suggestions Archer s careful restriction of her testimony apropos of the last mentioned point to the present tense under scores the evidence that current practice is not what pre vailed up to June 14 and corroborates testimony by Hutchins that the box was constructed by a friend of his mother and that he had the only key to it Pearson testi feed that the box was intended as a receptacle for sugges tions from employees relating to upcoming contract ne gotiations Whereas Archer admitted that she had never opened the box prior to June 14, Pearson testified that his practice was to open it every 2 weeks, review the suggestions, and return them to the box for storage until needed He asked VanBeveren to get the box for him when she returned to work because he felt that an undue length of time since he had reviewed its contents (prior to June 14) had elasped I conclude on the basis of all the testimony on the point that the box was installed at the request of the Grievance Committee for its own purposes rather than those of the Respondent and that Archer and Perugini were well aware of the fact Even in the event of the far fetched possibility that they believed the box really was property of the Respondent, I would expect that Archer and Perugmi would have intuitively recognized that the caption and asportation of the box by VanBe veren were without the criminal intent required for criminal liability to attach to her act, and that thieves do not usually return property on request The firing of an employee on a trumped up charge such as this is indicative of animus Other evidence of it is abundant The fact cannot be ignored that this incident occurred at the very inception of her return to employ ment with the Respondent in her capacity as a nurses aide in training into which she had been invited after she had contested her layoff from her job as recreation direc tor by filing a charge with the National Labor Relations Board and by filing a grievance through the Grievance Committee Though VanBeveren had to cross the picket line to report back to work there was no question as to where her sympathies lay It was apparent that VanBeveren was an ardent sup porter of the Grievance Committee and an active partici pant in its activities Even after she was fired, she had an exchange with Archer regarding differentials in pay of new employees in violation of the collective bargaining agreement and she had alerted new workers of the fact that there was a contract and that it contained pay provi lions different from the pay scale under which they were working Although Respondents personnel may not have been aware of all her activities, they certainly knew her attitude and interests They avoided rehiring her after her return from medical leave on July 7 She testi feed she offered to take another job other than recreation director and she finally agreed to nurses training They fired her at the first opportunity after she began training 636 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD She returned on August 9, the incident with the box oc curred on August 10, she was discharged on August 11 VanBeveren testified that when Perugini directed her to bring the suggestion box back from her car, Perugini declared that she didn t know where my loyalties were, in there or outside with them Though Perugini testified after VanBeveren, she did not deny making the statement and offered no explanation of it In the meet ing on August 11 VanBeveren was told as soon as she walked into the room that she had broken every rule in the place by taking the suggestion box out of the place and that they had a meeting and that they had no alter native but to terminate me It was all settled before she walked in Accordingly, I find that she was discriminatorily dis charged in violation of Section 8(a)(3) of the Act F Refusal to Reinstate Unlicensed Employees Who Refused to Cross Picket Line A group of more than 20 members of the Grievance Committee, including its chairman, Abraham Pearson and two officers, Stuart Hutchins and Robert C Pinng, did not cross the picket line set up by CSFT when they arrived for work on Monday morning June 14, though they were dressed for work The complaints issued by the General Counsel in Cases 39-CA-1419, 39-CA-1420, and 39-CA-1469, all allege that they refused to cross the picket line and that Respondents actions against them because of it were discriminatory in violation of the Act The Respondent contends that these workers engaged in an unlawful sympathy strike which violated the no strike provision contained in the collective bar gaining agreement That provision reads as follows 15 It is mutually agreed by the parties to this Agreement that there shall be no strike slowdown, walkout or stoppage of work by the Committee nor shall there be any lockout by the Employer during the life of this Agreement and that any dif ference or misunderstanding that may apse between the contracting parties shall be amicably adjusted by and between the parties themselves and if the parties themselves cannot amicably adjust the differ ence then the matter shall be referred to arbitra tion as provided for in this Agreement Pearson and Hutchins testified that they did not cross the picket line because they were fearful of harassment and violence Pearson also testified that they did not cross because a signal which the Respondent was sup posed to give them was never given In addition, Pear son testified that they could not come into the Home on the van that the Respondent was using to bring most of the employees in because they had never been advised of the location of the pickup points The concern about the possibility of violence testified to by Pearson and Hutchins seems to have had some basis in fact for the Respondent made elaborate provi sions to bus in employees through the picket line in a van with covered windows It also hired security guards However, evidence of actual violence or harassment is almost nil Only two incidents were testified to by Pear son and Hutchins In one, a woman who started crossing without the signal from the security guards was pushed back and denied admittance by the security guards she was not given a rough time by the pickets In the other incident, a male nurse who tripped on the way in blamed the pickets Though no signal came from the Home attempts to telephone Archer or contact her in some other fashion were extremely lackadaisical and Pearson s testimony shows that he was interested in having a meeting with Archer rather than safe conduct through the picket line On Monday morning, June 14 Pearson tried to talk to Archer by telephone, but waited 4 hours before placing the call When he did, he asked for a meeting, and said nothing about difficulty getting across the street past the picket line On Tuesday morning, June 15, he waited 3 1/2 hours before placing a call and again asked for a meeting He testified that he was unable to tell Archer anything more than that he wanted a meeting because of her abruptness and refusal to converse with him Nevertheless, on the third morning, Wednesday June 16 the fear of violence appears to have vanished and Pearson and several others started through the picket line to cross the street without any signal from the Home or the people guarding it They were not stopped by the picket line Archer stopped them by waving them off They telephoned her from a nearby house and Archer told them she did not want them on the property No attempt was made by Pearson or Hutchins to ex plain the failure to send a message to Archer through the employees who were regularly reporting to work inside the home Their accusation that Archer deliberately con cealed from them the location of the points at which the van was picking up workers who wished to cross the picket line rings hollow in view of the utter lack of any evidence that all the persons who honored the picket line were lacking that information or any evidence that even a minimal attempt was made to get that information from the hundred or so employees who were riding the van or coming in in their own cars Pearson in fact, testified that the location of the pickup points was discussed in an open meeting of the Grievance Committee just before the strike started I believe that the explanation lies in Pearson s testimo ny that he was in contact- consultation might be a more accurate description-with Carl Linneon the CSFT strike manager on the scene The overwhelming impression that I have from the testimony is that in fail ing to cross the picket line the unlicensed employees and members of the Grievance Committee were acting in sympathy with the strike called by CSFT The testimony of Pearson and Hutchins exhibited confusion, which mdi cates that a combination of motives unquestionably exist ed This is apparent in the testimony regarding the pur pose of the telephone calls to Archer and what they wanted to negotiate Pearson indicated in his testimo ny that he wanted to discuss the failure of Archer to signal the Grievance Committee members that it was all right to attempt to cross the picket line Hutchins said they wanted to let Perugini know that they did not know where to congregate to be given a ride through BRISTOL CONVALESCENT HOME 637 the picket line in the van He also indicated, somewhat vaguely, that he wanted to discuss whether they should use the van or their own cars and he wanted to straighten out the matter of his having been replaced His explanaton for remaining on the picket line was that he saw the male nurse get tripped That was the first day and I figured since we did not get in there on the first day because of that wed have to negotiate to get back in However, in any of the eventualities just discussed, the failure to cross the picket line constituted activity pro tected by law If the actions of those who honored the picket line are viewed as a sympathy strike, as contended by Respondent, such a strike did not violate the no strike provision quoted above from the collective bargaining agreement, since it does not contain an express waiver of the right to conduct a sympathy stnke 17 If the refusal to cross the picket line was prompted, in the case of some of the unlicensed personnel, by fear of harassment or vio lence or by mere sympathy with the strikers, on a purely individual basis, it is protected activity The motive is immaterial 18 The right to act on an individual basis, de spite the formal action of the Grievance Committee in deciding not to honor the CSFT picket line is pre served 119 That being the case, the failure of the Respondent to honor the Grievance Committee's written request for the reinstatement of the signatories to the letter of August 8 must be held to constitute a violation of the Act unless the Respondent establishes the existence of a valid reason for refusing such reinstatement, which excludes the dis crimination which is alleged 20 The Respondent wholly failed to do so Instead it sug gested several transparently pretextual reasons (1) that the requirements of the nursing home operation had made the hiring of those replacements necessary, (2) that an intervening Connecticut statute had rendered the unli censed employees who had been terminated no longer qualified, and (3) that the employees had violated compa ny policy by failing to telephone in for 2 consecutive days to advise that they were not coming in Reference has been made to circumstances from which union animus may be inferred and to hostility to the ac tivities of the employees in the discussion of VanBever en s termination In connection with these other employ ees Archer freely admitted that they were not reinstated 17 A no strike provision in a collective bargaining agreement that does not expressly refer to sympathy strikes or refusal to cross picket lines does not waive those rights and discharge of employees who exercise such rights is an unfair labor practice in violation of the Act Amcor Devi stun 247 NLRB 1056 ( 1980) enf denied 641 F 2d 561 (8th Or 1981) (on basis that other evidence established that union did not maintain its right to engage in sympathy strikes but restating and confirming the principle of nonwaiver as stated ) Gary Hobart Water Corp 210 NLRB 742 (1974) enfd 511 F 2d 284 (7th Cir 1975) 18 Under Board decisions motivation for refusal to cross a picket line is irrelevant Congoleum Industries 197 NLRB 534 (1972) Cooper Ther mometer Co 154 NLRB 502 (1965) 19 An employee who honors a lawful picket line is engaged in protect ed activity without regard to whether he is a member of the picketing labor organization or is merely sympathetic to the objectives of the picket line Kapiolani Hospital 231 NLRB 34 42 43 (1977) enfd 581 F 2d 230 (9th Or 1978) 20 Laidlaw Corp 171 NLRB 1366 (1968) enfd 414 F 2d 99 (7th Cir 1969) NLRB v Fleetwood Trailer Co 389 U S 375 (1967) because they had honored the picket line She did not deny and admitted facts from which animus can be in ferred, such as her refusal to admit or talk to Pearson, Hutchins, and Piring when they crossed the picket line on the morning of June 16 her insistence that she had not replaced them but terminated them ( They voluntari ly quit their job as far as we were concerned ), and as will be mentioned below, her refusal to reinstate employ ees whose jobs had not been filled by replacements 21 Archer refused reinstatement to all the 22 employees who requested it, though only 12 of the positions were actually filled and 10 jobs remained available That is not, however, the whole story, because the replacements were not hired right away The list of replacements fur nished by Archer in the course of her testimony shows that three positions were not filled by replacements until July Hutchins was not replaced until mid August Pear son, on the other hand, was replaced on June 15 Shift Nurses Aide Replacement Hired 73 Donna Parenti 7/7 73 Helen Swanson 6/15 73 Virginia Briggs 7/10 73 Dorothy Coppola 6/25 73 Susan Gennett 6/22 3 11 Heidi Kottke 6/15 73 Jean Perkins 6/29 3 11 Ann Mane Skorupski 6/22 3 11 Cathy Vanderheubal 6/28 3 11 Susan Thibodeau 7/2 73 Susan Hutchins 8/17 84 Porter Abraham Pearson 6/15 The Respondent failed to meet the test as set forth in Gary-Hobart Water Corp 210 NLRB 742, 746 (1974) enfd 511 F 2d 284 (7th Cir 1975) The Board has held in cases involving sympathy strikes although primarily when the activity was engaged in at the premises of another employer that although the refusal to cross the picket line of another union is protected this right must be bal anced against the business interest of the employer and that it is only when the employers business in terest to replace employees is such as clearly to out weigh the employees protected right that an inva sion of the statutory right is justified (Redwing Car riers Inc, 137 NLRB 1545, Overnite Transportation Co, 154 NLRB 1271) The termination of employ ees is justified where the employer `acted only to preserve efficient operation of his business, and ter minated the employees only so it could imme 21 That terminations were not for the purpose of preserving the Re spondent s operations at requisite level of efficiency but were punitive in nature may be shown by the fact of replacement of only a few of the discharged employees after a lapse of time and failure to demonstrate that terminations were necessary in order to obtain replacements Gary Hobart Water Corp supra 638 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD diately or within a short period thereafter replace them (Redwing Carriers, supra at 1547) The assertion that failure to telephone in was a factor in their termination is not borne out by statements made by Archer to the State of Connecticut in connection with the employees unemployment insurance claims It is a reason that was never asserted prior to the hearing and was only brought up at the 11th hour in the course of Archer s testimony The assertion that newly hired personnel, especially nurses aides, were required to be certified in accordance with Connecticut state law, which became effective Jan uary 1, conflicts with the facts that 12 new employees were not certified when they were hired, not all the 22 who honored the picket line and were seeking reinstate ment were nurses aides, because the 22 were already in the Respondents employ at the time the statute went into effect, they were either exempt or were entitled to become certified by taking an examination (as the 12 newly hired aides did after they were hired), and they were entitled to preference under the collective bargain ing agreement The pretextual nature of the Respondent's asserted reason for refusing to reinstate them is demon strated, among other things, by the case of Robert Pinng, who had been theraputic recreation program di rector He had been president of the Grievance Commit tee and, under the Greivance Committee constitution, at the time of the strike held the office of adviser to the in cumbent president, Pearson He was also serving as union steward for the recreation department Pinng testi feed that he became certified as a nurses aide by taking a challenge test at the Bristol Convalescent Home 2 months before the strike He therefore could have been recalled without difficulty so far as the new law was concerned Thus all the employees involved were either already qualified under the new legislation, had specialties that did not require certification were exempt because they were working in the subject positions at the time the leg islation became effective, or were prepared and qualified to take tests to obtain the necessary certification As I find the reasons stated by Respondent for its fail ure to reinstate the employees who unconditionally re quested reinstatement on August 8 to be pretextual I find that the Respondent has violated Section 8(a)(1) and (3) of the Act 22 III THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE The unfair labor practices committed by the Respond ent have a close intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and ob structing commerce and the free flow of commerce CONCLUSIONS OF LAW 1 Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act 22 NLRB Y Wright Line 251 NLRB 1083 (1980) enfd 662 F 2d 899 (1st Cir 1981) cert denied 455 U S 989 (1982) 2 The Grievance Committee and CSFT are labor or ganizations within the meaning of Section 2(5) of the Act 3 The Grievance Committee at all pertinent times was, and continue to be, the exclusive representative for the purposes of collective bargaining within the meaning of Section 9(b) of the Act of employees of Respondent in a bargaining unit defined as follows All service and maintenance employees, including employees in the dietary department, nursing de partment, housekeeping department maintenance department, laundry department and administrative aides, recreation directors, patient care coordinator administrators aide but excluding registered nurses, licensed practical nurses, clericals, supervisors and guards, as defined in the National Labor Relations Act 4 Respondent violated Section 8(a)(1) of the Act by (a) Promising increased wages, pension benefits job se cunty and improved working conditions if employees abandoned a strike in which they were engaged and re jected CSFT as their collective bargaining representa tive (b) Threatening employees with closure of the Bristol Convalescent Home unless they abandoned support for the CSFT (c) Soliciting employees to support a company union 5 Respondent violated Section 8(a)(1) and (3) of the Act by (a) Discharging and refusing to reinstate the following named employees because they refused to cross a picket line established by CSFT on June 14, 1982, Stuart Hutchins Robert Pinng Abraham Pearson, Donna Par enti, Helen Swanson, Virginia Briggs, Dorothy Coppola, Brenda Eastman Carrol Edwards Susan Gennett Nelly Goff, Heidi Kottke, Jean Perkins, Ann Marie Skorupski Maureen Soucy, Susan Thibodeau Anna Mane Ross Lisa Belanger, Geneva Earls, and Janice Palance (b) Discharging Marilyn VanBeveren 6 Respondent violated Section 8(a)(1) (3), and (5) of the Act by (a) Refusing to pay accrued vacation pay to the fol lowing employees because they engaged in a strike Babara Belanger Joanne Houle Claudia Connelly Linda Dorman Sandra Festa Eva Sheets Carol Malteius Tanya Sakowski Marilyn Poirer Mabel Hallstein Clara Posa (b) Refusing to pay accrued vacation pay to the fol lowing employees because they refused to cross a picket line established by other striking employees Stuart Hutchins, Robert Piring Abraham Pearson, Donna Par enti, Helen Swanson, Virginia Briggs, Dorothy Coppola, Brenda Eastman , Carrol Edwards Susan Gennett, Nelly Goff Heidi Kottke Jean Perkins Ann Mane Skorupski, Maureen Soucy Susan Thibodeau, Anna Mane Ross, Lisa Belanger Genera Earls, and Janice Palance BRISTOL CONVALESCENT HOME 639 7 Respondent violated Section 8(a)(1) and (5) of the Act by (a) Refusing to furnish to the Grievance Committee in formation it requested regarding the names , dates of hire, titles or names of positions and rates of pay for all mdi viduals hired into the bargaining unit described in Con clusion of Law 3, supra, and the amount of dues collect- ed from employees' checks since June 14, 1982, pursuant to the checkoff provisions of the collective bargaining agreement between the Respondent and the Grievance Committee (b) Ceasing the remittance to the Grievance Commit tee of dues deducted from employees paychecks pursu ant to the checkoff provisions of the collective bargain ing agreement between the Respondent and the Gnev ance Committee without prior notice to the Grievance Committee or affording the Grievance Committee an op- portunity to negotiate and bargain with respect to refusal to make deductions or remittances THE REMEDY Having found that the Respondent engaged in unfair labor practices, I recommend that Respondent be direct ed to cease and desist therefrom and take certain affirma tive action to effectuate the policies of the Act I recom mend that the Respondent be directed to offer to all the employees named in Conclusion of Law 5 immediate and full reinstatement to their former positions or, if these positions are no longer available, to substantially equiva lent positions, without prejudice to their seniority or other benefits and privileges, and that Respondent be di rected to make them whole for any loss of earnings they may have suffered by reason of their discharge, with backpay to be computed in the manner prescribed in F W Woolworth Co, 90 NLRB 289 (1950), with interest to be computed in the manner prescribed in Florida Steel Corp , 231 NLRB 651 (1977) and Isis Plumbing Co 138 NLRB 716 (1962) In the case of Marilyn VanBeveren, backpay is to be computed from the time of her dis charge on August 11 , 1982, less her net earnings for the period In the case of the other employees , who were re fused reinstatement, backpay shall be computed from the date of their unconditional offer to return , to wit August 8, 1982, less their net earnings for the period In this con nection, with respect to all of these employees , I will fur ther recommend that the Respondent, with respect to each such employee, be directed to expunge from its files any reference to the disciplinary discharge of the em ployee and notify the employer that such action has been taken and that evidence of the employee's unlawful dis- charge will not be used for future personnel actions against the employee Apart from and separate from the above recommended direction for payment of backpay and interest , I will fur ther recommend that the Respondent be directed to pay to the employees named in Conclusions of Law 6 the ac crued vacation pay that the Respondent has withheld from them, with interest Finally , I will recommend that the Respondent be directed to turn over to the Gnev ance Committee all dues deducted from the paychecks of employees in the above described unit and that Respond ent provide to the Grievance Committee as soon as prac ticable the information the Grievance Committee re quested on August 9 1982 , as set out in Conclusion of Law 7(a) [Recommended Order omitted from publication