Port Jefferson Nursing Home

716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Port Jefferson Nursing Home and Health Related Facility and 1115 Nursing Home and Hospital Employees Union, Division of 1115 Joint Board and Nursing Home and Hospital Employees Union, Division of Local 42, affiliated with In- ternational Industrial Production Employees Union, Party in Interest Nursing Home and Hospital Employees Union, Divi- sion of Local 42, affiliated with International Industrial Production Employees Union and 1115 Nursing Home and Hospital Employees Union, Division of 1115 Joint Board. Cases 29- CA-7568-2 and 29-CB-3994-2 August 27, 1980 DECISION AND ORDER On April 15, 1980, Administrative Law Judge James F. Morton issued the attached Decision in this proceeding. Thereafter, Respondent Employer and Respondent Union filed exceptions and sup- porting briefs, the General Counsel filed limited ex- ceptions, and the Charging Party 1115 Nursing Home and Hospital Employees Union, Division of 1115 Joint Board (hereinafter called Local 1115), filed an answering brief to the exceptions of Re- spondents. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs' and has decided to affirm the rulings, find- ings,2 and conclusions of the Administrative Law Judge as modified herein. i Respondent Employer's request for oral argulmcel is herehby denied s the record. the exceptiots, and hr briefs adequately present the issues and psiionls of the parties 2 Respondent Employer and Respondenti Untion h e excepted to cr- tain credibility findings made hy the Admininsratlve I .as Judge It i the Board's estahlished policy not to o errule all administralie la judge's resolutions with respect to credibility unless the clear preponderance f all of the relevant evidence convinces us that the reC,oltiIIIs are IIICor- rect Standard Dry Wall Pnducts. Int., 91 NIRI 544 (19501) efid I88 F.2d 3h2 (3d Cir 1951)V WVe hasc carefully examIlied tlhe recold aind find tr basis for reversing his findings The Administralive I.a.s Judge ilmade seral inladcrtent ilaclual errolrs in hit Decisionll ihey are hereby correcledis il ndicated below lit sec II. A. tile Admilititratis'e I.as Judge staled that Rsponldeint Etriployer and Responrdet Union wvere parlies to fouir separate cllectivsc hargaining agrcene lets l fact, s [hile the Union als certified its Ile lep- resentaletis If the office cleril utit, niegolitiatons for an itial contract for said uit swsere ii priogress durilg the tille {o1t ties proceedrtigs III sec II. II, second paragraplh. tilhe Adlnilll,tliat I a;\ Judge Irfound thal. on or about October 2. 97I, iily ('ross aid Ilarbara -ille tele- phoned the Bolrds' Regional Office fr inforliatioll as It ho the coul d (111 decertify uion Ilo/,eer, the rord rllects th is tI,, hlephole cOln- ersation t. Ik place Septetilher 2 19?7 1i s: II, 13, third paragraiplh. lie Adtriniitralis I tcc Judge taledl that ''tlll about ()cloher 2. 197. I call 1115 distributed (Igilili/ilg leaf lets outside the pretises if te Ritiltei Iiipl) Cr" lI here isno c I. dence iII the record to supporl this Iilding 251 NLRB No. 92 1. We agree with the Administrative Law Judge's finding that, at the urging of Respondent Union, Respondent Employer discharged the em- ployees who resigned from the Union for discrimi- natory reasons. We find that Respondent Employer and Respondent Union brought about the dis- charges because the employees sought to decertify Respondent Union and replace it with Local 1115 as their collective-bargaining representative. In ad- dition to the reasons stated by the Administrative .aw Judge,": the chronology of events leading up to the discharges points to a finding of discrimina- tory motive on the part of Respondent Employer. On October 26, 1979, 4 the president of Respond- ent Union hand-delivered to Respondent Employer a letter which contained copies of the employees' resignations from membership. After referring to the union-security provisions of the contract, the letter stated that the resignations indicated that the 45 employees "are to be fired immediately." On October 29, Respondent Union wrote Respondent Employer and demanded by name that the 45 en- Ill sec. i, II. fifl plluagraph, the Adnlililstrali. Ia.. Judge referred imi i threatelned strike regarding the trllls f ia "rClle al Collltract Co ering the office clerical etriploycs. t11 fact, tIh aigrcclleell ilought sa;l for arl ill l (Illtraclt III sec I. B, sixt paragraphi the Adtlmlit ralise l .aw Judge lated that Ioca I 1115 ad iscd the I lNs aid its upporlers i the aides, order- li!.s. e l uit, that tile righl be subjectted to fics by Respondet Union it a strike ill Ihe office clcrical unlil vere clld allC d they refused to jin it Nhere ill tile recordl !;was there llelltio o filing illenihler 11 i failed lo st rike Rather. Ihe emliployecs crc Uarlled thiat til ( mighl lose their jobs f ilhc lailed t honr t e pickit line Somn clarirIficat iol is required rgardirg the Admrinl ratis c I as Judgc's filldinlgs ill sc I. t, 11lh paragralphl The Admirist rati c I aw Judge staled "1 lie clplo cs lho had resiglned aid who had Inot el becin disiharged h ()ctoher 1I were l rlotilfid il ()October 31, b! Re- ,pildenl tImplCr li that t liy vc ould be li charged unless they prvsclncd Resp(onlldenlt Eiplloycr ith eidence of their c(tillued ilciihership in Responldelt Unllion cin criploycc' srolc R spoidcitl Ilmplii.cr i carly NoIIember hal their duties crc paid up and tIhat Ihus Ihey calillo he dis- c.harged under the ullilon-securitN prois isiln of the contracIl II 1liould he poi ier d out that 1(1 employees refcrred to ecr not those ho had til yet been disc harged. but those c tho had beenl fired is of No, ember 7 1 he Adlminisrali C I .aa Judge ventl oin to find, "the swcrc later dis- charged pursilant to Resprndlenlt Union's earlicr demand In Ithis irlaice, l thcy" referred t lhe ceniples ce vho had it et bhcn dis - cha;rged I he Adnmii e rali I a Judge sattd, il e II, . 12th paragraph, thill Rponlldil Ilnion advised Resporldcilt Eniployer Io l)eccmher 17, 1'7 9 , hal it nito lnger had anly oibjectlionl Io the reilnstalcmclt , lninle iil Ilic ernployces \s ho rcsignedl (io uc r, it lsould he cliphasieId hal Itl itticrllill of IhlC Unionll ;I s eolditiolild, tlaling thli rTl'll tll.llell a% p ssihlc' "if thes cployces rc prcpalicd o rlalliln thcir icilihcrhip l thIe litill" 1 1 ddi lionl. Ie rclerd tlclt, Ihal the )ecenher ]I lttcr refers to Ill 45 cllllo ccy disc hali rged rtl r than isi t Also im Sc II. I. 12th paragraph, th Ainilstratisc l a Jdge slated l a Rc's llnlde It l ioi didi ilo itlend to siubillit .i ripocd order i Jdg Rbbhins iovcS ,., till c rtord shi, Ih;al Lhc tlnlion did IIuhnil all irdcl Ito ti colur I, hilt (ha It s :i c \cr (enteredl W:c' lisasc i .o h , c'.cr. All reliancc mi liec Aditirlisltraic I . Juilgc i' lilig It R l -1nitl d i Iliplo t 'l'- dlcriiitlltory nm oi c b tilhe let titll i i l dich. trgc. t ( tci)hcr i lut) i7 f is, o tt il IsT ut. il c I ocl I s ip ir I Ii p ' cr, is ii It lt .lld , iii i li1 r , it d v, hic l , ss (Inll Rcspoiulc'nt IliplhNio kil e thal 11i'se t',, o pllipc's scrc acIc' stlp r'trs f I cta I 1 15 All I aic, lhercI ric 11 ) l t I tll ss IItc' I s SC Il iia icd P(OR- JEFFERSON NRSIN(G HO()MEt 717 ployees who had resigned be discharged the next week, citing their written resignations from mem- bership in Respondent Union and the union-secu- rity provisions of the applicable collective-bargain- ing contracts. At no time had any of the employees been delinquent in their payment of dues. The par- ties stipulated that the dues for all of these employ- ees were paid through October, as they had been deducted from their pay by checkoff. Also, on Oc- tober 29, Respondent Employer posted a notice on its employee bulletin board informing its employees that the governing contracts required them to remain members of Respondent Union, and that Respondent Employer intended to comply with Respondent Union's demand to discharge those who resigned. (It may be inferred that, by this time, Respondent Employer was aware of the Local 1115 organizing activity, because, on Sep- tember 25, Respondent Union posted a notice on its bulletin board at Respondent Employer's facility asking the employees to attend a meeting on Octo- ber 3, and referring to Local 1115's attempts to oust Respondent Union as bargaining representa- tive.5 ) On October 30, Respondent Employer dis- charged the first nine employees pursuant to Re- spondent Union's demand. It was the same day that Respondent Employer received a telegram from Local 1115 demanding recognition. This sequence of events clearly shows no valid basis for the dis- charge request, and, in the circumstances, compels the conclusion that Respondent Union sought, and Respondent Employer carried out, the discharge of 45 employees in retaliation for exercising their Sec- tion 7 right to displace Respondent Union with Local 115 as their bargaining agent. 2. We find Respondent Union's notices to the Employer of December 17, and January 2, 1980, and its letter to employees of December 17, at- tempting to terminate its backpay liability, to be in- valid and ineffective. 6 Respondent Union's liability to the employees extends from the date of dis- charge, until 5 days after the date on which it noti- fies Respondent Employer and each of the dis- charged employees, in writing, that it no longer has any objection to their immediate reinstatement, and thereafter until it joins with Respondent Em- ployer in submitting a consent order to dismiss the :C Conlra r to Ihe Administratlic I.u .Jluldge Respondidcnt Lnr pliocr did not conCede that t *as a.,arc that I ona.l 1 15 *,a. organl/ing I CIi ployee. hillut did adlmi t knex* Ih ll olnl tllliiol ' %a doing sei f Ihe nontic to the FImployer of IDecemnher 17 alnd the letter t cm- ploCee f nf the amnie date "ere coliditlliol;ll II1 iatir lre ld thui Illillji Both the notice ard the letter, sitalled tht1) If the er xplI'\ e. xI.re prepared to maintaii their memherhip in IhC Uin "to the eCxtent rCqllrtd h) Re',po. ndett Union otlild L not hlteCt t (heir illillllediilt rctlllit- merit I he Januar\ 2, Iti0. liotle! to Ihe illllpllo r *a aloo iniatll l .,s the employees were lit inlotlmed i drli alil ; id iin *.rling thi Re spoindelt Unionl no longer objected to heiI iilllediilc rinstlatemellt court proceeding instituted by it for a preliminary injunction restraining Respondent Employer from reinstating the 45 discharged employees. See Pen and Pencil Workers Union, Local 19593, FL (Parker Pen Company), 91 NLRB 883 (1950); Bap- tist Memorial Hospital, 229 NLRB 45, 46 (1977). 3. We find merit in the General Counsel's excep- tion that the Administrative Law Judge erred in failing to include a broad injunctive provision against Respondent Employer in his recommended Order. In addition, we agree with the General Counsel that the Administrative Law Judge erred in omitting from his recommended Order the pro- vision that Respondent Union cease and desist from causing or attempting to cause Respondent Em- ployer to discharge employees because they seek to decertify Local 42 and replace it with 1115 as their bargaining representative. Although the General Counsel in his exceptions requests that a narrow order be issued against Respondent Union, we find in light of the serious nature of the violations that a broad order is warranted for both Respondents. See Hickmott Foods, Inc., 242 NLRB 1357 (1979). AMNif)lD R~iMIhI)Y Having found that Respondent Employer and Respondent Union have engaged in certain unfair labor practices, we shall order that they cease and desist therefrom and that they take certain affirma- tive action to effectuate the policies of the Act. We shall, among other things, order that Respondent Employer be held jointly and severally liable with Respondent Union in making the employees whole, from the dates of the discharges of these employees set forth opposite their respective names below, until Respondent Employer offers them reinstate- ment and joins with Respondent Union in submit- ting a consent order to dismiss the state court pro- ceeding initiated by the Union. Respondent Union's backpay liability will be joint and several with Re- spondent Employer's, and will be from the dates of the discharges of these employees until 5 days after the date on which Respondent Union notifies, in writing, Respondent Employer and each of the 45 discharged employees that it no longer has any ob- jection to their immediate reinstatement and there- after until it joins with Respondent Employer in submitting a consent order to dismiss the state court proceeding initiated by it. Backpay is to be computed on a quarterly basis in the manner pre- scribed in bF W. Woolworth Company, 90 NLRB 280 (1950), with interest thereon as initially estab- lished in Isis Plumbing & Iteating Co., 138 NLRB 716 (1'62), and at the appropriate rate of interest as 71X I)' CISIONS ()F NATIONAL IL.A()OR RELATIONS O()ARI) set out in Florida Steel Corporation, 231 NLRB 651 (1977). 7 The employees to be offered reinstatement and Paulette Yarsinske Anne Young November 19, 1979 November 19, 1979 to be made whole from side their names are: Susan Barresi Gary Bland Suzette Bohler Patricia Jean Brace Margaret Buschner Patricia Charbonneau Karen Clayton Patricia A. Connolly JoAnn Cordero Emily J. Cross Christina Flint Richard S. Fried Janis S. Gary David Gehring Maria Gibaldi Elizabeth Givgno Joyanne Giraebner Dorothy Graf Patricia Keane Ernest D. Kline Marlene Kozlowski John Lacogca Evelyn Lisenbee Donna Lutz Frances Marscovetera Peggy McDonald Eric Morgan Donna Jean Moswier Yvette Nathaniel Carole S. Nieastro Karen M. Dsiecki Barbara Radesky Luz A. Reyes Linda Richters JoAnn Ruggiero Synthia Sanquist Christine Seifering Lillian Spero Annette Szermen Barbara Tilley Victor M. Torres Frances Tomminello Michael Vinicombe the respective dates along- November 19, 1979 October 30, 1979 November 19, 1979 November 19, 1979 October 30, 1979 November 20, 1979 November 19, 1979 November 19, 1979 November 19, 1979 October 30, 1979 November 19, 1979 November 30, 1979 November 19, 1979 November 19, 1979 November 19, 1979 November 20, 1979 November 19, 1979 November 19, 1979 November 19, 1979 November 20, 1979 November 19, 1979 October 31, 1979 October 30, 1979 November 19, 1979 November 19, 1979 November 19, 1979 December 2, 1979 November 19, 1979 November 19, 1979 November 19, 1979 November 19, 1979 October 30, 1979 October 30, 1979 November 19, 1979 November 5, 1979 October 30, 1979 November 19, 1979 November 19, 1979 November 19, 1979 October 30, 1979 October 30, 1979 November 19, 1979 November 19, 1979 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that: A. Respondent Port Jefferson Nursing Home and Health Related Facility, Port Jefferson, New York, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging any of its employees pursuant to any demand therefor by Nursing Home and Hospi- tal Employees Union, Division of Local 42, affili- ated with International Industrial Production Em- ployees Union, which demand is based on the res- ignation from membership in Local 42 by any of its employees or upon its employees' efforts to decer- tify Local 42, and to replace it with 1115 Nursing Home and Hospital Employees Union, Division of 1115 Joint Board, as their collective-bargaining representative. (b) Threatening to discharge any of its employ- ees because they engage in any of the activities de- scribed in paragraph l(a). (c) In any other 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: (a) Offer the following employees immediate 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 any other rights or privileges previously enjoyed: Susan Barresi Gary Bland Suzette Bohler Patricia Jean Brace Margaret Buschner Patricia Charbonneau Karen Clayton Patricia A. Connolly JoAnn Cordero Emily J. Cross Christina Flint Richard S. Fried Janis S. Gary David Gehring Marla Gibaldi Elizabeth Givgno Joyanne Giraebner Dorothy Graf Patricia Keane Donna Lutz Frances Marscovetera Peggy McDonald Eric Morgan Donna Jean Moswier Yvette Nathaniel Carole S. Nieastro Karen M. Dsiecki Barbara Radesky Luz A. Reyes Linda Richters JoAnn Ruggiero Synthia Sanquist Christine Seifering Lillian Spero Annette Szermen Barbara Tilley Victor M. Torres Frances Tomminello 7 In accordance with his dissent in Olympic Medical (orporation. 250 NLRB No II (9St)). Member Jenkins swould award interest on he hack- pay due based on the formula set forth therein POR JFFEIRSON NURSIN(i Ht()M' Ernest D. Kline Michael Vinicombe Marlene Kozlowski Paulette Yarsinske John Lacogca Anne Young Evelyn Lisenbee (b) Jointly and severally with Respondent Union make the employees listed in the immediately pre- ceding paragraph whole for any loss of earnings they may have suffered due to the discrimination practiced against them by paying each of them a sum equal to what he or she would have earned, less any net interim earnings, plus interest, as pro- vided in the section of this Decision entitled "Amended Remedy." (c) Join with Respondent Union in submitting a consent order to dismiss the proceeding instituted by that Union in the Supreme Court of the State of New York for the County of Nassau, for a prelimi- nary injunction restraining Respondent Employer from reinstating the 45 employees named in para- graph 2(a), and advise the Regional Director for Region 29 of the Board of the disposition of that case. (d) Preserve and, upon request, make available to the Board or its agents, for examination and copy- ing, all payroll records, social security payment re- cords, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (e) Post at its place of business in Port Jefferson, New York, copies of the attached notice marked "Appendix A."8 Copies of said notice, on forms provided by the Regional Director for Region 29, after being duly signed by an authorized repre- sentative of Port Jefferson Nursing Home and Health Related Facility, shall be posted by it imme- diately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicu- ous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Port Jefferson Nursing Home and Health Related Facility to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 29, in writing, within 20 days from the date of this Order, what steps Respondent Employer has taken to comply herewith. B. Respondent Nursing Home and Hospital Em- ployees Union, Division of Local 42, affiliated with International Industrial Production Employees In the elent that thi, Order i, enfirced h a Judgmrenl of a ULnitcd State, Court of Appeal. he 'ord, ill the n,oiice reading "Po'lcd h) Order ,of Ihe Na;ltioal Labor Relation,, (lard" shall read "',ted Puru- anl to a Judgemelnt of the United State, Court of Appeall, tFrlfrcinlg .ll Order of the National lhbor Relations Board " Union, North Lindenhurst, New York, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Causing or attempting to cause Port Jefferson Nursing Home and Health Related Facility (herein called Port Jefferson Nursing Home) to discharge any of its employees because they resigned from membership in Nursing Home and Hospital and Employees Union, Division of Local 42, affiliated with International Industrial Production Employees Union, or because of the employees' efforts to de- certify Local 42, and to replace it with 1115 Nurs- ing Home and Hospital Employees Union, Division of 1115 Joint Board, as their collective-bargaining representative. (b) In any other manner restraining or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action: (a) Notify Port Jefferson Nursing Home, in writ- ing, with copies to the affected employees, that it withdraws its objection to Port Jefferson Nursing Home's employment of the 45 employees named in paragraph A, 2(a) of this Order. (b) Join with Respondent Employer in submit- ting a consent order to dismiss the proceeding insti- tuted by it in the Supreme Court of the State of New York for the County of Nassau, for a prelimi- nary injunction restraining Respondent Employer from reinstating the 45 employees named in para- graph A, 2(a) of this Order. (c) Jointly and severally with Respondent Em- ployer make the employees listed in paragraph A, 2(a) of this Order whole for any loss of earnings they may have suffered due to the discrimination practiced against them by paying each of them a sum equal to what he or she would have earned, less any net interim earnings, plus interest, as pro- vided in the section of this Decision entitled "Amended Remedy." (d) Post at its offices and meeting halls copies of the attached notice marked "Appendix B." 9 Copies of said notice, on forms provided by the Regional Director for Region 29, after being duly signed by Respondent Union's authorized representative, shall be posted by Respondent Union immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, in- cluding all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondent Union to insure that said notices are not altered, defaced, or covered by any other mate- rial. ' See f X8, upra .7 1 L 720 I) ECISIONS OF NATIONAL. I.AI(R RELATI()NS B()ARDI (e) Notify he Regional Director for Region 29, in writing, within 20 days from the date of this Order, what steps Respondent Union has taken to comply herewith. APPENDIX A No-TICE To EMrl.oYi lES PosTrED BY ORDI)ER OF THE NATIONA. LABOR REI.ATIONS BOARD An Agency of the United States Government WE WIL.L NOIr discharge any of our employ- ees pursuant to any demand therefor by Nurs- ing Home and Hospital Employees Union, Di- vision of Local 42, affiliated with International Industrial Production Employees Union (here- inafter called Local 42), which demand is based on the resignation from membership in Local 42 by any of our employees or upon our employees' efforts to decertify Local 42, and to replace it with 1115 Nursing Home and Hospital Employees Union, Division of 1115 Joint Board, as their collective-bargaining rep- resentative. W. WIll. NOT threaten to discharge any em- ployees because they engaged in any of the ac- tivities described in the above paragraph. We WIl. NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Sec- tion 7 of the Act. WE win.t offer each of the following em- ployees immediate and full reinstatement 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: David Gehring Maria Gibaldi Elizabeth Givgno Joyanne Giraebner Dorothy Graf Patricia Keane Ernest D. Kline Marlene Kozlowski John Lacogca Evelyn Lisenbee Christine Seifering Lillian Spero Annette Szermen Barbara Tilley Victor M. Torres Frances Tomminello Michael Vinicombe Paulette Yarsinske Anne Young WE wiI.iL jointly and severally with Local 42, make the employees listed in the immedi- ately preceding paragraph whole for any loss of earnings they may have suffered due to the discrimination practiced against them, by paying each of them a sum equal to what he or she would have earned, less any net interim earnings, plus interest. WE WII.L join with Local 42 in submitting a consent order to dismiss the proceeding insti- tuted by Local 42 in the Supreme Court of the State of New York in the County of Nassau, for a preliminary injunction restraining us from reinstating the 45 employees listed above whom we discharged. PORT JEFFERSON NURSING HOMI AND) HEAI.TH REI ATI ) FACII.IIY APPENDIX B NOTIC: To MEMBERS PosTI AI) BY ORDER OF T1:I NATIONAl. LABOR RF IATIONS BOARD An Agency of the United States Government WE Wil. NOT cause or attempt to cause Port Jefferson Nursing Home and Health Re- lated Facility (hereinafter called Port Jefferson Nursing Home) to discharge any of its em- ployees because they resigned from member- ship in Nursing Home and Hospital Employees Union, Division of Local 42, affiliated with In- ternational Industrial Production Employees Union, or because of the employees' efforts to decertify Local 42, and to replace it with 1115 Local Nursing Home and Hospital Employees Union, Division of 1115 Joint Board, as their collective-bargaining representative. WF Wil.l. NOT in any other manner restrain or coerce employees in exercising the rights guaranteed them by Section 7 of the Act. Susan Barresi Gary Bland Suzette Bohler Patricia Jean Brace Margaret Buschner Patricia Charbon- neau Karen Clayton Patricia A. Connolly JoAnn Cordero Emily J. Cross Christina Flint Richard S. Fried Janis S. Gary Donna Lutz Frances Marscovetera Peggy McDonald Eric Morgan Donna Jean Moswier Yvette Nathaniel Carole S. Nieastro Karen M. Dsiecki Barbara Radesky Luz A. Reyes Linda Richters JoAnn Ruggiero Synthia Sanquist PORT JEFFERS()N NURSING HO()ME 721 WE vwii.i notify Port Jefferson Nursing Home, in writing, with copies to the affected employees, that we withdraw our objection to Port Jefferson Nursing Home's employment of the 45 employees named below: Susan Barresi Gary Bland Suzette Bohler Patricia Jean Brace Margaret Buschner Patricia Charbon- neau Karen Clayton Patricia A. Connolly JoAnn Cordero Emily J. Cross Christina Flint Richard S. Fried Janis S. Gary David Gehring Maria Gibaldi Elizabeth Givgno Joyanne Giraebner Dorothy Graf Patricia Keane Ernest D. Kline Marlene Kozlowski John Lacogca Evelyn Lisenbee Donna Lutz Frances Marscovetera Peggy McDonald Eric Morgan Donna Jean Moswier Yvette Nathaniel Carole S. Nieastro Karen M. Dsiecki Barbara Radesky Luz A. Reyes Linda Richters JoAnn Ruggiero Synthia Sanquist Christine Seifering Lillian Spero Annette Szermen Barbara Tilley Victor M. Torres Frances Tomminello Michael Vinicombe Paulette Yarsinske Anne Young have earned, less any net interim earnings, plus interest. NURSING HOME AN[) HosPIrAI E- Pl.OYEiF S UNION, DIVISION OF LOCA 42, AFFII.IATED WITH IN' -RNA I ION- Al INI)USTRIAI. PROI)UCTION E- PI OYIFS UNION DECISION S I A OII: l:NI() t HI- CASE JAMES F. MORTON. Administrative Law Judge: These consolidated cases were heard by me on January 7. 8. and 9, 1980, in Brooklyn, New York. Upon unfair labor practice charges filed by 1115 Nursing Home and Hospi- tal Employees Union, Division of 1115 Joint Board (herein called Local 1115). a consolidated complaint issued against Port Jefferson Nursing Home and Health Related Facility (herein called Respondent Employer) and Nursing Home and Hospital Fmployees Union, Divi- sion of Local 42, affiliated with International Industrial Production Employees Union (herein called Respondent Union) alleging violations, respectively, by Respondent Employer and Respondent Union of Section 8(a)(l) and (3) of the National Labor Relations Act, as amended (herein called the Act), and of Section 8(b)(1)(A) and (2) of the Act. The issues raised by the pleadings, as amend- ed at the hearing are: 1. Whether Respondent Union, in violation of Section 8(b)(I)(A) and (2) of the Act, caused Respondent Em- ployer to discharge 45 employees, named in the consoli- dated complaint as amended at the hearing (a) because they joined and assisted Local 1115, or (b) because they sought to decertify Respondent Union as their collective- bargaining representative, or (c) notwithstanding the fact that Respondent Union never gave them full and timely notice of their alleged failure to comply with their obli- gations under the applicable union-shop provisions of the contracts covering them, or (d) notwithstanding the fact that they had fully satisfied their obligations under those union-shop provisions. 2. Whether Respondent Employer, in violation of Sec- tion 8(a)(1) and (3) of the Act, discharged those 45 em- ployees (a) upon Respondent Union's alleged unlawful demands, as set out above, or (b) because they sought to decertify Respondent Union as their collective-bargain- ing representative, or (c) because they joined and assisted Local 1115. 3. Whether Respondent Employer, in violation of Sec- tion 8(a)( ) of the Act. threatened to discharge its em- ployees to discourage them from resigning from member- ship in Respondent Union notwithstanding the fact that they had satisfied their legal obligations under the union- shop provisions of the contracts covering them. I have considered the entire record in these cases, the oral argument made by the General Counsel at the hear- ing, ad the post-hearing briefs filed by the parties. Based upon these considerations, I make the following: Wi wii.t. join with Port Jefferson Nursing Home in submitting a consent order to dismiss the proceeding instituted by us in the Supreme Court of the State of New York for the County of Nassau for a preliminary injunction restraining Port Jefferson Nursing Home from reinstating the 45 discharged employees named above. Wte wnt jointly and severally with Port Jefferson Nursing Home make the employees listed above whole for any loss of earnings they may have suffered due to the discrimina- tion practiced against them by paying each of them a sum equal to what he or she would 722 I)'1CISI()NS OF NAII()NAI. I.AH()R REI.A'IONS B()ARI) FINI)IN(iS OF FA(CI I. JURISI)I( I ION The pleadings, as amended at the hearing, establish, and I thus find, that Respondent Employer is an employ- er engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that Respondent Union and local 1115 are labor organizations as defined in Sec- tion 2(5) of the Act. 11. I Hlt Al I (;:I) UNFAIR ABOR PRACTICES A. Background Respondent Employer operates a nursing home in Port Jefferson, New York. During the course of the events discussed below, Respondent Employer and Respondent Union were parties to four separate collective-bargaining contracts covering respectively units of RNs, office cleri- cal employees, approximately 10 LPNs, and lastly a unit of approximately 50 aides, orderlies, dietary employees, housekeeping, and other employees employed by Re- spondent Employer at its facility in Port Jefferson, New York. The LPN contract and the contract covering the aides, orderlies, etc., each contained a no-strike clause, a union-shop clause, and a dues-checkoff clause. The dis- charged employees involved in these cases were covered by one or the other of those two contracts which were scheduled to expire on January 15, 1980. The facts revelant to the issues are not in dispute. B. The Efforts To Decertify Respondent Union and Subsequent Events In late September 1979 (all dates herein are for 1979 unless otherwise stated), employees of Respondent Em- ployer had discussions about decertifying Respondent Union and joining Local 1115. On September 25, Re- spondent Union posted an open letter to employees on its bulletin board at Respondent Employer's premises urging them to come to a meeting on October 3 to get Re- spondent Union's position as to whether they should sign any petition "to eliminate" Respondent Union as their bargaining agent or to have Local 1115 act as their rep- resentative. On or about October 2, an aide, Emily Cross, and an- other aide, Barbara Tilley, telephoned the Board's Re- gional Office for information as to how they could de- certify a union. Cross testified that she had been advised by her sister-in-law, a Local 1115 representative, to call the National Labor Relations Board's office.' They then prepared typed sheets which recited that the undersigned employees desired to decertify Respondent Union from representing them.2 On September 25, 25 of the employ- ees in the unit of aides, orderlies, etc., signed the sheets for that unit; 9 others in that unit signed on September ' [.cal t I 5' president estified that his Union does not raid a repre- sented shop but does undertake an organizing campaign where. as here. the employees have clearly indicated a desire to decerrify the incumbent union. I Respondent Union Iherein was identified as Local 150 AB Beauty Culture and Service Employees nion hich had merged into Respond- ent Union, in 1978 The contracts referred to above ere signed h Local 150 It is undisputed that at all material times herein Respondetit Union has been party to hose contracts as l.ocal 150's successor. 26, and 15 others signed during the next several days. In all. 49 of the approximately 50 employees in that unit signed. Beginning on September 26, and until October 1. 10 of the employees il the LPN unit, i.e., virtually all of them, signed a typed sheet bearing the same decertifica- tion lalnguage. O()n or about October 2, I.ocal 1115 distributed orga- nizing leaflets outside the premises of the Respondent Employer. That same evening. about 23 employees from both units met with Local 1115 representatives at the home of Emily Cross (referred to above). Altogether. 28 employees signed Local 1115 authorization cards on Oc- tober 2; 2 others signed on October 3; 4 more signed on October 4; and I signed on October 5. Six of those were signed bv LPNs; the other 29 cards were signed by em- ployees in the unit of aides, orderlies. etc., consisting of about 50 employees thereit. Respondent Union held a meeting of Respondent Em- ployer's employees on October 3, pursuant to the notice set out in its open letter of September 25. Only about four employees attended. Respondent Union's president urged the several employees there to reject Local 1115's organizing efforts and to support Respondent Union. is efforts appear to have been unsuccessful as Barbara Tilley, on October 4, filed a petition in Case 29-RD-330 to decertify Respondent Unioil as the representati ve in the unit of aides, orderlies, etc., and an LPN. Patricia Brace, filed a petition that same day in Case 29 RD-329 for the LPN unit. Also, October 4, Respondent Union sent a letter to Respondent Employer advising that, if agreement is not reached on the terms of a renewal contract covering the office clerical employees (none of the alleged discrimina- tees in this case are employed in that unit), a strike will begin on October 15. Copies of that letter were posted on Respondent Union's bulletin board at the premises of Respondent Employer. Local 1115 thereupon advised the LPNs and its sup- porters in the aides, orderlies, etc., unit that they may be subjected to fines by Respondent Union if such a strike was called and if they refused to join it. On advice of Local 1115's attorney, 45 employees in the units of LPNs and of the aides, orderlies, etc., then signed separate statements advising Respondent Union that they were re- signing from membership in Respondent Union, effective October 21. These statements were delivered to Re- spondent Union on October 26, by Emily Cross, Barbara Tilley, Patricia Brace, and a Local 1115 representative. The president of Respondent Union, on advice of its counsel, concluded that, as those 45 employees were no longer members of Respondent Union, they should be discharged as its contracts with Respondent Employer required, as a condition of continued employment, that they remain members in good standing. He signed a letter and had it delivered to Respondent Employer by hand on October 26. That letter enclosed copies of the resignations from membership and, after referring to the union-security provisions of the contract, stated that the resignations "indicate" that the 45 employees "are to be fired immediately." (Respondent Employer conceded that it was aware at this point that Local 1115 was ac- t()R JIFF'FRSO(N N'RSIN(i lt()tl 723. tively organizing its employee. () On ()ctober 29, Re- spondent Union wrote Respondent Employer and ex- pressly made a demand for the discharge within the fol- lowing week of these 45 employees. by name, and stated. as the basis therefor, their written resignations from membership in Respondent Union and the uniol-shop provisions of the contracts covering these employees. No reference was made in the October 26, or October 2. letters as to any dues delinquencies of these employees In fact, the parties stipulated that the dues for all of these employees were paid up for October as they had been checked off from their wages earlier that month. On October 29, the administrator of Respondent Em- ployer posted a notice on its employee bulletin board ad- vising its employees that the union contracts, then in effect, required that they must remain members of Re- spondent Union and that Respondent Employer intended to comply with Respondent Union's demand to dis- charge those swho resigned. He testified that the purpose of the notice was to alert its employees that they should be subject to discharge for resigning. O()n October 29, he also wrote Respondent Union for permission to stagger the discharges over a reasonable period of time to ac- commodate its patients. On October 30, Respondent Union wrote to Respondent Employer that it should use reasonable judgment in expediting its demand. On October 30, Emily Cross. Barbara Tilley, and seven other employees were discharged. Respondent Employer notified them that they would be reinstated provided they could show to its satisfaction that they are members in good standing with Respondent Union. Local 1115 had sent a telegram to Respondent Employ- er, also on that day, October 30, demanding recognition. Two other employees were discharged within the next week; 29 were discharged on November 19; and the re- mainder of the 45 within a few days thereafter. The first group, discharged on October 30, was told that Re- spondent Employer regretted having to discharge them but had to honor the demand by Respondent Union. They were also told then that they should have waited until the contracts expired on January 15, 1980, to resign. The administrator testified that they were discharged in the order their names were listed in Respondent Union's demand letter of October 29, and according to the de- partment each worked in, as replacements were hired. He also testified that Respondent Employer incurred ex- penses of close to $10,000 to recruit and train replace- ments. An employee testified that, on October 31, Respondent Employer's head nurse told her that the employees would be given notices with their paychecks advising them that if they, in effect, rescinded their resignations, none would be discharged. Respondent Employer's counsel then commented at the hearing that it never took the position that it required the employees who resigned from membership in Respondent Union to rescind their resignations but only asked that they maintain union membership as required by law. Respondent Employer's administrator acknowledged that he and Respondent Employer's counsel had never defined what that lan- guage meant. Oni November 2, Emily Cross offered Respondent Union's president an envelope containing checks drawn by her and the other employees who resigned and ad- vised him that they there the dues for November. He pushed the envelope back to her without looking at its contents. In I)ecember, Respondent Union rejected a tender for their November and December dues. The em- plofecs. who had resigned and who had not yet been discharged by October 31, were notified on October 31, bh Respondent Employer, that they would be discharged unless they presented Respondent Employer with ei- dence of their continued membership in Respondent Union. Ten emploxees wrote Respondent Employer in early November that their dues were paid up and that thus they could not he discharged under the union-secu- rit> provision of the contract. As noted above. they were later discharged pursuant to Respondent Union's earlier denland and after Respondent Employer wrote them that they had still not submitted evidence that they are mem- hers of Respondent Union "at least to the extent required by law ." On November 29, Respondent Employer rote a letter to Respondent Union which stated that, because Respondent Employer was being picketed by Local 1115, it intended to reinstate the employees who re- signed. Respondent Union then moved in the Supreme Court of New York, Nassau County, for a preliminary injunctilon to restrain Respondent Employer from rein- stating these employees. On December 18, Judge Rob- bins, for that court, granted the motion and stated in his written opinion that his order would issue upon the post- ing by Respondent Union of an appropriate bond of $1.5{X) for possible costs and damages. On December 17 (the day before Judge Robbins' opinion issued), Re- spondent Union advised Respondent Employer that it no longer had any objection to the reinstatement of nine of the employees who had resigned. Respondent Union's counsel stated at the hearing in this case that that letter was sent to cut off any backpay liability Respondent Union may have. On December 26, Respondent Employ- er wrote Respondent Union that it would maintain the status quo ante because Judge Robbins had granted the preliminary injunction restraining it from offering rein- statement to the discharged employees and because it did "not know to whom (it) should offer reinstatement." It appears that no order was signed by Judge Robbins and also that Respondent Union does not intend to submit one to him or to tender the $1,500 bond on which the issuance of the order is predicated. On January 2, 1980. Respondent Union wrote Respondent Employer request- ing that it reinstate the 45 discharged employees. It does not appear that Respondent Union has advised these em- ployees in writing that it no longer objects to their rein- statement. C. Analysis 1. The union-shop question The facts demonstrate Respondent Union demanded, pursuant to its construction of the union-security provi- sions of the applicable collective- bargaining agreements, 724 I)IFCISIO)NS OF NATIONAL. LABOR REIATIONS BOARDI) that Respondent Employer discharge 45 of its employees because thev resigned from membership in Respondent Union and notwithstanding that these employees were current in their dues payments, and notwithstanding that they at all times had tendered the requisite dues pay- ments. The General Counsel asserts that such a demand is violative of Section 8(b)( I )(A) and (2) as the Board has clearly held in Hlershevy Foods Corporation:l that a union cannot compel the discharge of an employee except for his failure to pay required dues and initiation fees and that a union cannot lawfully rely on an employee's resig- nation from union membership alone as the basis for its demand. O(n that same authority, the General Counsel urges that Respondent Employer's acquiescence in tile demand iolated Section 8(a)(1) and (3) of the Act. Re- spondenit Eimployer relies on the dissenting opinion ill lcrhy oods as support for its view that an employee's resignation of' mebership alone is a lawful basis for a union to demiand a discharge under a union-shop clause and that, perforce, its acquiescence in Respondent Union's demand is also lawful. Respondent Union initial- ly ad.;ocated the same view as Respondent Employer. It seems, howev er, that Respondent Union now takes an equivocal position as it has not expressly abandoned that view but asserts that any backpay liability it may have is linmited to the period between the time of its demands and the date on which it notified Respondent Employer that it no longer insists upon their termination of employ- ment but instead seeks their reinstatement. In llerslhel lFodv, the Board decided the central issue posed in the instant case and considered at length there, as did the U.S. Court of Appeals for the Ninth Circuit. the same contention being urged now by Respondent Employer and at least initially by Respondent Union. As it is well settled that I am bound by such precedent, I find that Respondent Union violated Section 8(b)(1)(A) and (2) of the Act by attempting to cause, and causing, Respondent Employer to discharge 45 employees be- cause they resigned from membership in Respondent Union. For the same reasons I find that Respondent Em- ployer violated Section 8(a)(l) and (3) of the Act by dis- charging them pursuant to Respondent Union's de- mands. 4 2. The alleged discriminatory motive The General Counsel asserts that, in any event, Re- spondent Employer and Respondent Union seized upon the resignations of membership as a pretext to conceal an actual discriminatory motive. The General Counsel con- tends that Respondents brought about the discharges be- cause the employees had sought to decertify Respondent Union and replace it with Local 1115 as their collective- bargaining representative in the LPN unit and also in the 20' 2NRB 97 Nl 8 1973) cfd 13 : 2d 0IK83 (9th Cir. 1975} Rcpoilldcinl ni plohter and Respondent Union filed extiensise briefs lhich rcslcs.ed the legislatise and case history of the ulnion-shiop provi- sMlos f tie Act to pcrsuade me to adopt their view that a employec irlus rllln ai nlemher o a Ulioll In good anding where the contract contains uion-sho p clause. not an agency-shop clause Inr effect, they seek recllisderation of thie Board's holding i Hershey Foiod, upra, and cases cited therein tIhir argumelt does not appear toi raise athilig new hut the Board, upon appropriate exceptions. is of course free to re- consider it. unit of aides, orderlies, etc. The General Counsel seeks a finding thereon to preclude Respondents from relying on the rationale of the dissenting opinion in Hershey fbods and to support an order to remedy the alleged discrimi- natory motive. Respondent Employer contended at the hearing that its actions were motivated simply by its desire to pro- mote industrial stability, i.e., to protect itself against any monetary losses or disruptions in providing patient care services which may be caused by any wildcat strike action by the LPNs or by the employees in the other unit involved herein, i.e., the aides, orderlies, etc. In that regard, Respondent Employer noted that any such strike would violate the no-strike provisions of the appli- cable collective-bargaining agreements and argues that it has a right, in the event of such a strike, to hold Re- spondent Union accountable. It concedes it could also itself discipline any employee who strikes in violation of the no-strike provisions but it maintains that it prefers to put the onus first on Respondent Union to insure compli- ance by its members. It argues that were the employees who resigned from membership from Respondent Union permitted to remain in its employ Respondent Union could not have effectively controlled them as they were no longer members and that Respondent Employer was thus deprived of a contractual right of redress against Respondent Union for any possible violation of the no- strike clause by those employees. There is simply no fac- tual basis to support this expressed concern of Respond- ent Employer. At the outset, I note that, if there were any merit in Respondent Employer's argument, it need not have waited for any demand for Respondent Union to dis- charge the employees who resigned from membership in Respondent Union but could have discharged them forthwith. The fact that Respondent Employer instead waited for Respondent Union to demand the discharges of the resigned employees indicated that Respondent Employer adopted that argument sometime afterwards. More significantly Respondent Employer did not ad- vance that reason when it terminated these employees and the undisputed evidence is that the employees who resigned did so in order to be free not to participate in any strike involving the unit of office clerical employees which Respondent Union had tentatively set for October 15. Further, it is unlikely that Respondent Employer was really concerned about protecting itself against the possi- bility of incurring monetary losses in the event of a strike of these 45 employees in violation of a no-strike clause. The prospect of such a strike was remote at best. Never- theless, Respondent Employer spent almost $10,000 in re- cruiting and training replacements for the 45 discharged employees to protect one of its rights, it claims, under the contract to seek redress. i.e., the asserted right it has against Respondent Union to compel its members not to strike during the term of the contract. It is even more 5 It did not expressl 5 pursue this coenltion in its brief Indeed, at one point in its brief, Respondent Elllployer nlutes that there never was any serious threat ,f a strike and that whatever threat existed diminished with eactih passing day. apparentll a reference to Respondent Union's notice that it may call a strike among the ffice clerical employees. PORT JFFFRSON NURSING H)MiE 725 unlikely that Respondent Employer would spend the sum of almost $10,000 to protect such an alternate remedy for so remote a possible contractual breach where the contracts had but a few more months to run; i.e., until January 15, 1980. Additional factors which point up the discriminatory motivation behind the dis- charges are the selection for termination on October 3() of two of the most active Local 1115 supporters and the mass discharge of most of the remaining discriminatees on November 19. Respondent Employer explained that it discharged the employees according to the order their names appeared on Respondent Union's demand letter and consistent with its ability to replace them. The pre- cipitate discharges of the most active Local 1115 adher- ents first and the wholesale termination of virtually the remainder of the 45 employees 3 weeks later belie that assertion. Finally, in determining whether the reason ad- vanced by Respondent Employer was true, I must take into account the factor of patient care. Respondent Em- ployer suggests that it was acting in the best interests of the infirm patient entrusted to its care by discharging all its LPNs and virtually all of its experienced aides, order- lies, etc., during the holiday season and that it did so be- cause there was a possibility that these employees might engage in a wildcat strike during the approximately 2 months left in the terms of the then extant collective- bargaining agreements. The very statement of that con- tention displays a disregard of the interests of these pa- tients. There is no support in fact or logic for the reason advanced by Respondent Employer in accommodating the demands of Respondent Union. Respondent Union makes no pretense as to its motive. It wanted only its supporters in the employ of Respondent Employer. I therefore conclude that Respondent Employer and Re- spondent Union were motivated in bringing about the discharges of the 45 employees in this case by a desire to be rid of any employee who supported the decertifica- tion of Respondent Union and who promoted the cause of Local 1115. They thus respectively violated Section 8(a)(1) and (3) and Section 8(b)(l)(A) and (2) of the Act. 3. The pending state court injunction Respondent Employer contends that it cannot reinstate the discharged employees because there is outstanding an opinion of the Supreme Court of the State of New York forbidding it to do so. The General Counsel has suggest- ed that that opinion was the result of a fraud perpetrated on that court by, in effect, a friendly lawsuit instituted by Respondent Union with the ready assent of Respond- ent Employer. The General Counsel also notes that that court never entered an order requiring Respondent Em- ployer's compliance with its opinion and that, in any event, the Board's authority to remedy violations of the Act is paramount to any interpretation of the Act by a state court. It is ironical that Respondent Employer asks now how it can get out of the dilemma it asserts it is now in by virtue of a state court opinion. When it discharged those 45 employees, it placed them in a dilemma they could not solve except by surrendering their rights under Sec- tion 7 of the Act and even then it was never made clear to them what they otherwise may have to do. Suffice it to sav that the dilemma posed by Respondent '.mplover is only a mirage as it is obvious that Respondent Union is no longer pressing the state court action. In an eent. I shall relieve Respondent Employer of its asserted qualms by requiring Respondent Union to appl' to the state court for the issuance of an order vacating that action, and I shall order Respondent Employer to consent to the entry of that order. 6 4. The alleged threat of discharge The General Counsel contends that the notices given by Respondent Employer to employees that they would be discharged or would remain discharged unless the> show they are members of Respondent Union "as re- quired by law" constitute violations of Section 8(a)(1) of the Act as they interfered with their right to resign from membership in Respondent Union. Notwithstanding Re- spondent Employer's assertion that that was not neces- sarily its intent, I find that the notices were clearly to that effect and that they thus interfered with the Section 7 rights of its employees. CONCIl SIONS OF- l.AVV 1. Respondent Employer is an employer with the meaning of Section 2(6) and (7) of the Act. 2. Respondent Union and Local 1115 are labor organi- zations within the meaning of Section 2(5) of the Act. 3. By discharging 45 of its employees based upon Re- spondent Union's demand therefor which was premised solely on their having resigned from membership in Re- spondent Union, Respondent Employer has engaged ill unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. 4. By discharging the employees referred to in the pre- ceding paragraph because they sought to decertify Re- spondent Union and to replace it %with Local 1115 as their collective-bargaining representative, Respondent Employer has engaged in unfair labor practices ithin the meaning of Section 8(a)(1) and (3) of the Act. 5. By threatening to discharge its employees because they resigned from membership in Respondent Union. Respondent Employer has engaged in unfair labor prac- tices within the meaning of Section 8(a)(1) of the Act. 6. By causing and attempting to cause Respondent Employer to discharge 45 employees because they re- signed from membership in Respondent Union, Respond- ent Union has engaged in unfair labor practices within the meaning of Section 8(b)(1)(A) and (2) of the Act. 7. By attempting to cause and by causing Respondent Employer to discharge the employees referred to in the preceding paragraph because they sought to deccrtif Respondent Union as their collective-bargaining repre- sentative and to replace it with Local 1115, Respondent Union has engaged in unfair labor practices W ithin the meaning of Section 8(h)( I )(A) and (2) of the Act. ' In hi, hrlT. IhC (;ilnr;ll Cmili l irge, I that I ill Rc',pondnI l tnin, , I xlJllldi StiliOll {hj)( I)(A I aI nd 2 h I;asIig inlltllcd IhC 'talte court actlinl A, Ihatl mianlter a, liot tit Il 1i le i a 11 ti l. helrig 0 I 1a J nlol nmak. -rlc a illdinlg 72h I)'LCISI()NS ()F NA I()NAI. I.AB()R REI.AI()ONS H()ARI) 8. The unfair labor practices set forth above affect commerce within the meaning of Section 2(6) and (7) of the Act. 111. 'Ti RMIEI)Y Having found that Respondent Employer and Re- spondent Union have engaged in unfair labor practices violative respectively of Section 8(a)(1) and (3) and Sec- tion 8(b)(1)(A) and (2) of the Act, I recommend that each he required to cease and desist therefrom and to take the affirmatie action as set forth in the recommend- ed Order below. In making the employees whole as pro- vided for in that Order, I recommend that Respondent Employer be held jointly and severally liable therefor with Respondent Union from the dates of the discharges of these employees set forth opposite their respective names below and until Respondent Employer offers them reinstatement and joins with Respondent Union in consenting to the dismissal of the state court action. 7 Re- spondent Union's hackpay liability shall be joint and sev- eral with Respondent Employer's and shall be from the dates of the discharges of these employees and until it notifies each of the 45 discharged employees in vriting that it does not object to their reinstatement by Respond- ent Employer and until Respondent Union files a motion with the state court to \vacate that proceeding in its en- tirety. ackpay is to he computed on a quarterly hasis l the manner prescribed in I' W. Woolworth Company, 9()0 NLRB 289 (1950), with interest thereon as initially estab- lished in Isis Plumbing & Heating Co.. 138 NLRB 716 (1962), and at the appropriate rate of interest as set out in Florida Steel Corporation, 231 NLRB 651 (1977). The employees to be offered reinstatement and to be made whole from the respective dates alongside their names are: Richard S. Fried Janis S. Gary David Gehring Maria Gibaldi Elizabeth Givgno Joyanne Giraebner Dorothy Graf Patricia Keane Ernest D. Kline Marlene Kozlowski John Lacogca Evelyn Lisenbee Donna Lutz Frances Marscovetera Peggy McDonald Eric Morgan Donna Jean Moswier Yvette Nathaniel Carole S. Nieastro Karen M. Dsiecki Barbara Radesky Luz A. Reyes Linda Richters JoAnn Ruggiero Synthia Sanquist Christine Seifering Lillian Spero Annette Szermen Barbara Tilley Victor M. Torres Frances Tomminello Michael Vinicombe Paulette Yarsinske Anne Young November 30, 1979 November 19, 1979 November 19, 1979 November 19, 1979 November 20, 1979 November 19, 1979 November 19, 1979 November 19, 1979 November 20, 1979 November 19, 1979 October 31, 1979 October 30, 1979 November 19. 1979 November 19, 1979 November 19, 1979 December 2. 1979 November 19, 1979 November 19, 1979 November 19, 1979 November 19, 19 79 October 30., 1979 October 30, 1979 November 19, 1979 November 5, 1979 October 30, 1979 November 19, 1979 November 19, 1979 November 19, 1979 October 30, 1979 October 30, 1979 November 19, 1979 November 19, 1979 November 19, 1979 November 19, 1979 Susan Barresi Gary Bland Suzette Bohler Patricia Jean Brace Margaret Buschner Patricia Charbonneau Karen Clayton Patricia A. Connolly JoAnn Cordero Emily J. Cross Christina Flint November 19, 1979 October 30, 1979 November 19, 1979 November 19, 1979 October 30, 1979 November 20, 1979 November 19, 1979 November 19, 1979 November 19, 1979 October 30, 1979 November 19, 1979 In its post-hearing memorandunm, Local 1115 urges that Respondent Employer be required to recognize and bargain with it as the exclusive representative for both the LPN unit and also the unit for aides, orderlies, etc. Local 1115 asserts that a bargaining order is appropriate to remedy the egregious unlawful conduct involved herein, particularly as the evidence demonstrates that a majority of the employees in each unit signed Local 1115 authorization cards. At the hearing, the General Counsel expressly noted that he was not seeking a bargaining order or, for that matter, any remedy requiring Respond- ent Employer to cease recognizing or assisting Respond- ent Union. I recommend that no bargaining order issue to Local 1115's benefit as that issue had not been litigat- ed at the hearing. [Recommended Order omitted from publication.] ' Respondent Employer contends that the letters it sent the discharged employees offering them reinstatemenl if they proved to its satisfaction that they have maintained membership as required by law terminated is backpay liahility Thiose letters. i my iew. simply restate the violation found