Contemporary Guidance Services, Inc.

National Labor Relations Board - Board Decisions

Sep 29, 1988

291 N.L.R.B. 50 (N.L.R.B. 1988)

50 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Contemporary Guidance Services , Inc and Local
868, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America , AFL-CIO and Dolores Beckham and
Kevin Mulvey Cases 2-CA-21761 2-CA-
21917 and 2-CA-21931
September 29 1988
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On March 29 1988 Administrative Law Judge
Robert T Snyder issued the attached decision The
Respondent filed exceptions and a supporting brief
The National Labor Relations Board has delegat
ed its authority in this proceeding to a three
member panel
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge s rulings findings i and
i The Respondent has excepted to some of the judge s credibility find
rags The Board s established policy is not to overrule an administrative
law judge s credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings Additionally we are satisfied that the Respondents conten
Mons that the judge was biased are without merit There is nothing in the
record to suggest that his conduct at the hearing his resolutions of credi
bility hi rulings or the inferences he drew were affected by any bias or
prejudice
2 The judge refused to consider certain Appendixes the Respondent
a tached to its posthearing brief (see fn 3 of the judge s decision ) and the
Respondent filed a motion to reopen the record o receive them n evi
dence We deny the Respondents motion on the ground that the Re
spondent has not shown that the admission of the evidence in question
would require a different result in this case See Sec 102 48(d)(1) of the
Board s Rules and Regulations
In concluding that the Respondent violated Sec 8 (a)(5) the judge
found that the agreed on unit was appropriate for purposes of collective
bargaining and that in any event the Respondent was precluded from
raising the appropriateness of the agreed on unit in this proceeding We
note that the evidence supports a finding that counselors housekeeping
and maintenance employees at the three residences and the agreed on
unit is an appropriate unit The record establishes that the three rest
dences are managed and supervised by a common director the employ
ees from these three residences have periodic contact with one anothei
perform similar functions from residence to residence and have little or
no contact with staff employees at the Respondents other building In
addition there is evidence of transfers from one residence to another
Thus while an overall unit may as the Respondent argues in this case
be an appropriate unit it is not the only appropriate unit The community
of interest among those employees in the agreed on unit warrants a find
ing that it is an appropriate unit Further we reject the Respondents at
gument that the agreed on unit includes professionals The counselors
handle client problems assist in cooking maintaining residential rooms
grooming of clients and administration of medications as needed Qua] fi
cations for the counselor position are a high school education and 1 year
of experience working with the mentally retarded Based on the qualifies
tions and the evidence regarding the job responsibilities of a counselor
we find that these employees are not professionals and thus were prope
ly included in the agreed on unit Other employees who may be profes
sionals such as the psychiatrists social workers and therapists were not
included in the unit sought by the Union In light of our finding that the
agreed -on unit is an appropriate unit we find it unnecessary to rely on
Chemetron Corp 258 NLRB 1202 ( 1981) enf denied 699 F 2d 148 (3d
Cir 1983 ) in finding that the Respondent violated Sec 8(a)(5)
conclusions2 and to adopt the recommended Order
as modified 3
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re
spondent Contemporary Guidance Services Inc
New York New York its officers agents succes
sors and assigns shall take the action set forth in
the Order as modified
1 Insert the following as paragraph 2(c) and re
letter the subsequent paragraphs
(c) Remove from its files any reference to the
unlawful discharges of Dolores Beckham and
Kevin Mulvey and notify them in writing that this
has been done and that evidence of the unlawful
discharges will not be used as a basis for future
personnel actions against them
2 Substitute the attached notice for that of the
administrative law judge
9 We deny the Respondents motion to stay this proceeding as lacking
in ment The judges citation to New Horizons for the Retarded is correct
ed to read 283 NLRB 1 173 (1987)
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice
WE WILL NOT refuse to recognize and bargain
collectively with Local 868 International Brother
hood of Teamsters Chauffeurs Warehousemen and
Helpers of America AFL-CIO and its designated
agents as the exclusive representative of the em
ployees in the following appropriate unit with re
spect to wages rates of pay hours of employment
and other terms and conditions of employment
All counselors housekeeping and maintenance
employees employed at the Chelsea, Yorkville
and Berry residence facilities
WE WILL NOT discharge or otherwise discnmi
nate against employees in regard to their hire,
tenure of employment or other terms and condi
tions of employment because they have become
members of or engaged in activities on behalf of
the above mentioned Union
WE WILL NOT promulgate maintain and enforce
a rule banning any union business discussions or
291 NLRB No 9
CONTEMPORARY GUIDANCE SERVICES 51
solicitations during working hours or on our prem
ises and WE WILL NOT interrogate our employees
concerning their membership in and activities on
behalf of the above mentioned Union
WE WILL NOT in any like or related manner
interfere with restrain or coerce you in the exer
case of the rights guaranteed you by Section 7 of
the At
WE WILL, on request, bargain collectively with
the above named Union and its designated agents
as the exclusive representative of our employees in
the appropriate unit with respect to wages rates of
pay hours of employment and other terms and
conditions of employment and if an understanding
is reached embody same in a written signed agree
ment
'WE WILL offer Dolores Beckham and Kevin
Mulvey immediate and full reinstatement to their
former jobs or if those jobs no longer exist to sub
stantially equivalent positions without prejudice to
their seniority or any other rights or privileges pre
viously enjoyed and WE WILL make them whole
for any loss of earnings and other benefits resulting
from their discharge less any net interim earnings
plus interest
WE WILL remove from our files any reference to
the unlawful discharges of Dolores Beckham and
Kevin Mulvey, and notify them in writing that this
has been done and that evidence of the unlawful
discharges will not be used as a basis for future
personnel actions against them
CONTEMPORARY GUIDANCE SERV
ICES INC
Judy Minette Sandlers Esq for the General Counsel
Bradley B Davis Esq of New York New York for the
Respondent
John Burke Jr President of New York New York for
the Charging Union
DECISION
STATEMENT OF THE CASE
ROBERT T SNYDER Administrative Law Judge This
proceeding was tried at New York New York on 20
28 29 and 30 January and 2 and 3 February 1987 The
consolidated complaint which issued on 30 December
1986 alleges that Contemporary Guidance Services Inc
(CGS or Respondent) reneged on an agreement to rec
ognize and bargain with Local 868 International Broth
erhood of Teamsters Chauffeurs Warehousemen and
Helpers of America AFL-CIO (Local 868 or the
Union)' as the exclusive collective bargaining representa
i Effective 1 November 1987 the International Brotherhood of Team
stern Chauffeurs Warehousemen and Helpers of America affiliated with
the AFL-CIO Accordingly the name of the Charging Party Union has
been modified to show this affiliation
tive of its employees in an appropriate unit following the
Union s demonstration of majority status in the unit as
the result of an agreed on third party card check and
thereby withdrawn its recognition and failed and refused
to bargain with the Union in violation of Section 8(a)(5)
and (1) of the Act The complains, also alleges that Re
spondent promulgated and maintained an unlawful rule
bannmg any solicitation during working hours on Re
spondent s premises and by a named agent interrogated
its employees concerning their union membership and ac
tivities in violation of Section 8(a)(1) of the Act Finally
the complaint alleges that Respondent issued written
warnings to and subsequently discharged an employee
Charging Party Kevin Mulvey and discharged another
employee Charging Party Dolores Beckham both in
violation of Section 8(a)(3) and (1) of the Act Respond
ent denied the material and conclusionary allegations of
the complaint and interposed various affirmative de
fenses which it asserted both in its written answer and
by way of amendments made orally during the course of
the hearing which will be discussed as warranted during
the course of this decision
All parties were given full opportunity to participate 2
to introduce relevant evidence 3 to examine and cross ex
amine witnesses to argue orally and to file briefs The
General Counsel and Respondent each filed posttrial
briefs that have been carefully considered On the entire
record in the case including my observation of the wit
nesses and their demeanor I make the following
FINDINGS OF FACT
I JURISDICTION AND LABOR ORGANIZATION STATUS
CGS is a not for profit corporation organized under
the laws of the State of New York with its principal
place of business located at 500 Eighth Avenue New
York New York where at all times material it has been
engaged in providing services to developmentally dis
abled adults Respondent stipulated that annually in the
z At the outset of the first full hearing day Respondent counsel sought
leave to allow numerous members of Respondents staff who were
present to speak out of turn on the record without having any idea what
any of them would say Counsel had informed his client that anyone who
wished could come down to the hearing and state his position (on union
representation) because each one of them was going to be affected The
General Counsel opposed this request I denied such leave noting that the
hearing would be conducted in an orderly fashion with the Government
having the burden of proof on the complaint first going forward with its
own witnesses after which Respondent could call any of the employees
in the presentation of its case I added the caveat that if the evidence
sought to be adduced was not relevant to the proceeding I might not
hear it and counsel might be required to make an offer of proof to permit
me to rule before placing it on the record
8 Respondent attached to its posttrial brief Appendixes 1 through 4
comprising separate documents relating to CGS and CGS Employees
Association Appendixes 1 2 and 3 are all dated subsequent to the
close of hearing Appendix 4 is already in evidence as G C Exh 7
Respondent has not moved to reopen the record to receive these docu
ments as additional exhibits Neither did Respondent serve a copy of its
brief on the Charging Union that entered a separate appearance on the
record (Tr 93) Thus Respondent s inclusion of this materal and com
ment thereon in its brief without notice to the other parties or any oppor
tunity for them to be heard on whether it should be included in the
record is improper Appendixes I through 3 will be disregarded in my
review of the record and preparation of this decision
52 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
course and conduct of providing these services it derives
gross revenues in excess of $1 million and gross revenues
in excess of $50 000 from the State of New York Re
spondent further stipulated that in the calendar year
1986 Cosco Enterprises which is located on Skillman
Avenue in the Borough of Brooklyn city and State of
New York supplied various cleaning and household
goods to CGS of which such goods and materials
valued in the amount of $2030 were in turn purchased
directly by Cosco Enterprises from a supplier located in
the State of New Jersey
Based on these facts Respondent denies that it is an
employer engaged in interstate commerce within the
meaning of Section 2(2) (6) and (7) of the Act Re
spondent asserts that as a nonprofit agency housing and
educating mentally retarded people it is not a commer
cial operation and not within interstate commerce Re
spondent s position is not well taken
The Supreme Court has noted that Congress vested in
the Board the fullest jurisdictional reach constitutionally
permissible under the Commerce Clause NLRB v Reli
ante Fuel Oil Corp 371 U S 224 226 (1963) Transac
tions may also be commerce though insignificant or non
commercial See NLRB v National Survey Service 361
F 2d 199 203-204 (7th Cir 1966) The Board within the
exercise of its administrative discretion under the Act s
broad statutory mandate has for some time asserted ju
nsdiction over charitable nonprofit institutions In doing
so it has not created a separate jurisdictional category
for these institutes but rather classifies them according to
their fundamental purposes St Aloysius Home 224
NLRB 1344 (1976) Respondents programs are educa
tional and vocational rather than medical in nature4 and
are designed to prepare many clients for self sufficient
living Thus Respondent is not a health care institution
under the Act Abilities & Goodwill 226 NLRB 1224
1225 (1976)
The nature of Respondents activities as a service in
stitution makes it appropriate that the Board s nonretail
jurisdictional standard be applied to its operations See
e g Southeast Work Training Center 251 NLRB 487 488
(1980) enfd 666 F 2d 428 (9th Cir 1982) Volunteers of
America 272 NLRB 173 (1984) particularly because the
amount of the sales to the public from the operation of
its minimall store has not been included in the record
see Abilities & Goodwill cited supra
Because of Respondents receipt of proceeds in excess
of $50 000 from the State of New York in the course and
conduct of providing its services it has met the Board s
indirect outflow standard Electrical Workers IBEW Local
46 273 NLRB 1357 1358 (1985) Southern Alleghenies
Disposal Services 256 NLRB 852 (1981) Respondent s re
ceipt of all of its revenues from the State of New York
as claimed by Respondent does not make it an exempt
political subdivision under Section 2(2) of the Act be
cause it was not created directly by the State nor is it
administered by individuals who are responsible to public
officials or to the general electorate see Assn for the De
4A staff nurse oversees the administration of drugs but there is no
physician on staff or under contract and any serious medical care or
treatment is provided through patient hospital care
velopmentally Disabled 231 NLRB 784 (1977) Neither is
there any evidence that the State of New York exercise
any control over Respondents labor relations policies
Hispanic Federation for Development 284 NLRB 500
(1987) In any event as a social service organization
other than those for which there exist standards specifi
cally applicable to the type of activity in which they are
engaged Respondents annual gross revenues in excess of
$250 000 meets the gross volume of business standard es
tablished in Hispanic Federation for Development cited
supra and the more than $2000 it made in purchases in
directly from outside the State of New York has more
than a de minimis affect on interstate commerce NLRB
v Suburban Lumber Co 121 F 2d 829 (3d Cir 1941) 1
therefore conclude that Respondent is an employer en
gaged in commerce within the meaning of Section 2(2)
(6) and (7) of the Act
Respondent in its answer also denies knowledge or in
formation sufficient to form a belief as to the complaint
allegations that the Union is a labor organization within
the meaning of Section 2(5) of the Act John Burke Jr
president of Local 868 for the past 12 years testified that
he negotiates contracts services contracts including sub
mitting matters to arbitration and organizes employees
on behalf of the Union The bulk of his testimony dealt
with the Unions efforts to represent Respondents em
ployees in collective bargaining with CGS Respondent
filed a petition in Case 2-RM-1969 acknowledging that
Local 868 as a labor organization had presented a claim
to it to be recognized as the representative of its employ
ees Based on the foregoing I find that the Union is a
labor organization within the meaning of Section 2(5) of
the Act
II THE ALLEGED UNFAIR LABOR PRACTICES
A The Organization Operation and Staffing of
Respondent
CGS is a not for profit corporation chartered by the
State of New York in 1974 for the purposes of servicing
developmentally disabled adults It is administered by a
volunteer nonpaid board of directors who are elected by
the Corporations members CGS operates a number of
different programs out of various locations within the
city of New York all but one situated in the Borough of
Manhattan
The executive staff including the executive director
Pearl Coffee her assistants an accounting manager and
director of management and fiscal services and their sup
port staff of bookkeepers clericals and receptionists op
erate out of Respondents main office located at 500
Eighth Avenue CGS has various programs One a vo
cational rehabilitation program also located at 500
Eighth Avenue evaluates and then trains individuals in
various primary job skills Training in such skills as
office work and mailroom chores is provided at a second
day program a sheltered workshop located at 229 W
28th Street CGS clients receive remuneration for per
forming mailing tasks there for firms under contract with
Respondent A third day program is a retail store called
the minimall located at 87th Street at Second Avenue
CONTEMPORARY GUIDANCE SERVICES
where clients receive training in retail merchandising and
culinary skills The aim of these programs is ultimate
placement of clients in competitive outside employment
CGS also has a program of urban residences where
staff provide 24 hour services One consists of eight
apartments in a building located at 193 Ninth Avenue in
the Chelsea neighborhood described as Chelsea I It is
for higher functioning clients where they learn independ
ent living skills A second is located at 89th Street be
tween York and First Avenue in the Yorkville neighbor
hood described as the Yorkville residence It is an inter
mediate care facility for nine lower functioning clients A
third residence and the only facility located outside the
Borough of Manhattan is located on 11th Street in Long
Island City the Borough of Queens described as the
Berry residence It houses 12 clients who have a dual di
agnosis Although generally higher functioning they also
have emotional problems A fourth residential program
described as Chelsea II consists of a series of 15 apart
ments located in the Chelsea neighborhood in different
apartment houses near the Chelsea I residence where cli
ents who have achieved a certain level of independence
beyond that of clients housed in Chelsea I are provided
support in a semi independent environment Some of the
Chelsea I and II and Berry clients participate in the vo
cational training and sheltered workshops
In addition to the central management and clerical
group also located at 500 Eighth Avenue are a head
evaluator and two assistant evaluators psychologist vo
cational rehabilitation counselor and remediation special
ist all other than trainees with bachelors degrees hold
ing masters degrees and including some Ph D candi
dates The main office also has two maintenance persons
one who is retarded and in all likelihood a client and
the other who is not retarded Employed at the sheltered
workshop are a staff including a supervisor a rehabilita
tion counselor with a master s degree and four other
counselors who do not necessarily have college or ad
vanced degrees At the minimall are a social worker and
teachers all at the masters level
Certain other professionals perform services on a con
tract basis including a speech therapist at 500 Eighth
Avenue and a nutritionist who performs services at the
three residences There is also a staff nurse who services
the clients at the three residences but whose office is lo
cated at 500 Eighth Avenue
Each of the three residences employs a staff Some of
the staff for Chelsea I also are responsible for servicing
the clients housed in the apartments comprising Chelsea
II Each residence is headed by a residence manager Di
rectly under the manager also in a supervisory capacity
are an assistant manager and clinical coordinator The
managers along with the coordinators are responsible for
the physical plant clinical and staff issues such as ap
proving vacation time time off from work and supervis
ing observing and evaluating staff The assistant manag
ers act as managers in their absence and on weekends
when managers are only present sporadically Under
them is a direct care staff comprising counselors includ
ing a recreation counselor During the relevant period
Respondent had a policy of requiring a minimum of an
associate degree (2 years college) plus some experience
53
in either residential work or in retardation for these posi
tions although as will be seen in the case of Kevin
Mulvey this policy was not followed in practice Some
of the counselors have either bachelors or masters de
grees and have taught classes in special education for the
handicapped or disabled in school systems In addition to
counselors each residence also employs a cook an
escort housekeeper and a maintenance person
The counselors work shifts around the clock on week
days or weekends They perform vaned duties all direct
ed to aiding the clients in learning and improving life
skills under the supervision of the manager and coordina
tor They help maintain the physical plant and the cli
ents apartments cleaning cooking and washing laun
dry They interact with the clients daily evaluating their
needs assessing their skill attainments disciplining them
when necessary and taking them to hospitals for treat
ment and on recreation outings They are also advised by
a team consisting of a psychologist and a social worker
on the attainment of client goals of moving to a next
higher level of functioning or residence and ultimately
achieving independence
The counselors including recreation counselor are
paid similar wages receive similar benefits and work the
same daily or weekend shifts at the three residences
They interact daily with the housekeeper cook and
maintenance employee assigned to their residence and
their functions particularly in relation to the cook and
housekeeper regularly overlap There is evidence that
counselors at the different residences particularly Chel
sea I and Berry have periodic work contacts at staff
meetings on joint client outings when clients are trans
ferred between these residences as occurs from time to
time on joint parties and as a result of relations between
clients in difference residences Staff at Berry use a sta
tion wagon assigned to Yorkville and Berry and Chelsea
I staff share a van assigned to Berry Although clients
housed at Yorkville are the lowest functioning a Berry
client accompanied them on a trip and the interaction de
scribed does include Yorkville although not as frequently
as between Berry and Chelsea I Counselors have also
shifted between residences during periods of critical
shortages in staff and when the Berry residence closed
because of a boiler problem in 1983 or 1984 and clients
were housed at Chelsea I and Yorkville Counselors also
have interchanges and contact on annual training to re
ceive recertification in administration of certain drugs
and handling of first aid on medical emergencies
Counselors generally have little or no contact with the
sheltered workshop and minimall and only occasionally
with the central office when personnel problems apse or
periodic meetings are held Supervisors have transferred
permanently between residences as the need arises
B The Union Campaign Third Party Card Checlc,
and its Results
Kevin Mulvey was hired by Respondent on 12 De
cember 1985 to work at Chelsea I residence as recreation
counselor on weekends and Wednesdays In early Janu
ary 1986 Mulvey contacted John Burke Jr president of
Local 868 to seek union organization of the residences
54 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Burke gave Mulvey authorization cards and union liters
Lure for distribution to other employees Burke distribut
ed cards and solicited signatures at Chelsea and also dis
tributed them to contacts and individually at the other
residences receiving back signed cards that he forward
ed to Burke
By certified letter dated 26 March 1986 5 and received
on 27 March Burke on behalf of Local 868 advised
Coffee executive director of CGS that the Union
which represents a majority of the employees employed
as counselors and housekeeping and maintenance person
nel at the three residences was prepared to submit evi
dence to support this claim and requested an early ap
pointment to negotiate a collective bargaining agreement
to represent these employees
On either 26 or 27 March Burke telephoned Coffee
told her he represented a majority of the employees
working at the three residences and that he had filed a
petition with the National Labor Relations Board and
would like to sit down to negotiate a contract Coffee
advised him to contact her attorney Bradley Davis and
gave him Davis telephone number
On 28 March the Union filed a petition for certifica
tion of representative in Case 2-RC-20139 seeking a unit
of all counselors and housekeeping and maintenance per
sonnel employed by CGS excluding all office clerical
employees guards and supervisors as defined in the Act
Burke telephoned Davis and arranged to meet in
Davis office The meeting was held within a few days at
the end of March or in early April Burke explained he
began by informing Davis that he represented the three
residences and would like to enter into a labor contract
with the agency Davis said that if he did in fact repre
sent the employees he would have no problem He
would negotiate a contract with Burke Burke testified
that they then discussed how they could resolve the issue
of representation Davis agreed that Burke did not need
to keep the petition in the Board that they could go to a
third party Burke then recommended Father Carey to
conduct a third party card check It was agreed the unit
would be the counselors and maintenance and house
keeping employees working in the three residences It
was further agreed that the list of employees to be used
for purposes of the check would be those employed as of
26 March the date of the Union s demand letter Burke
also agreed with the Union that he would pay for the
card check As to using Father Carey Davis said he did
not know he would talk to the board of directors and
get back to Burke
Following this meeting Burke sent a letter dated 3
April to Region 2 requesting the withdrawal of the
Union s petition because the Company had indicated it
would agree to an impartial card check and if Local 868
represented the majority of the employees the Union
would be recognized Burke did not forward a copy to
Davis By order dated 8 April the Regional Director
5 All subsequent dates listed will be in the year 1986 unless otherwise
indicated
canceled the hearing and approved withdrawal of the pe
tition 6
In subsequent discussions by telephone with Burke
Davis rejected Father Carey and later suggested the
name of an attorney Mathew J Shebar with offices
then located at 82 Wall Street New York New York
Burke who did not know the man agreed to Shebar
Burke then called Shebar and agreed to mail him the
original designation cards signed by employees at the
three residences Burke forwarded the cards to him by
express mail Shebar subsequently informed Burke that
he was going to check the signatures and go to the three
locations and to verify if in fact Local 868 did represent
the employees Meanwhile following clarifying phone
calls between Burke and Davis Davis directed Coffee to
prepare a list for Shebar of regular full time employees
and part time employees who work 20 or more hours 2
days a week at the three residences As a result of fur
ther inquiry he had made Davis also directed that the
names of all others employed at the residences including
supervisors who were not responsible for hiring and
firing be forwarded to Shebar
A few days later during April Shebar informed Davis
that he had received a staff list and a method of verify
ing signatures Davis confirmed he had told Coffee to
supply signatures of all employees at the residences
By letter dated 29 April 1986 addressed to Burke
Shebar first noted his inclusion of a copy of his third
party determination report supplied to Davis in which he
concluded that Burke s local had been authorized to bar
gain for a majority of Contemporary s employees In the
next paragraph Shebar congratulated Burke and particu
larly Kevin Mulvey for what appeared to be a thorough
and well executed organizational effort In the third
paragraph Shebar listed his fee for services rendered in
the course of the inquiry as $850 and disbursements as
$27 for a total of $877 Burke paid this amount Davis
acknowledged on the record having received a copy of
this letter (Tr 113) In one of the many reversals of his
testimony Davis later denied while undergoing exams
nation as a witness that he received a copy of this cover
letter from Shebar (Tr 691 )
The report then provided a breakdown of the review
in the three residences At Chelsea of a list of 11 full
time and 4 part time employees provided by manage
ment 8 full time and 4 part time employees (a total of 12
employees) had authorized the Union to represent them
The Union had also submitted cards from three per diem
and one full time employee not listed by management At
Yorkville of seven full time five part time and three
professional employees provided by management one
full time four part time and one professional employee
(a total of six employees) authorized the Union to repre
sent them The Union also submitted the signed card of
one part time employee not listed by management At
Berry of a list of 8 full time 7 part time and 3 profes
sional employees submitted by management 5 full time
6 part time and 1 professional (a total of 12 employees)
6 The order received in evidence did not include a service sheet The
Board s Casehandling Manual (October 1975 ) provides in Sec 11110 that
if the withdrawal request is approved the parties should be notified
CONTEMPORARY GUIDANCE SERVICES
authorized the Union to represent them The Union also
submitted a signed card from one part time employee not
listed by management
Based on these figures Shebar concluded that 30 of
the 49 employees listed by management had authorized
the Union to bargain for them He also noted that these
results would have been more favorable to the Union if
he had included any of the six employees whose status
was in discrepancy or if he had excluded any of the pro
fessional employees whom the Union argued were out
side of the bargaining unit
Within a day or so Burke was on the phone to Davis
He asked if Davis had received the certification When
Davis indicated he had Burke sought an appointment to
negotiate a contract and a date was set Early in May
Burke accompanied by Mulvey arrived at Davis office
Mulvey remained in a waiting room and Burke went into
Davis office Davis said [W]ell now we can go for an
election for the whole unit Burke taken aback re
sponded that was not the agreement The agreement was
for the three locations Davis said No now we can go
for an election for the whole unit Burke then replied
that they had not even attempted to organize the other
units They were discussing the three residences
Mulvey waiting in an outside area testified that he
heard shouting and screaming through the adjoining
wall Burke and Davis shortly emerged from the meeting
after only about 5 minutes and Burke and Mulvey imme
diately left Burke exclaimed to Mulvey that they had
been stabbed in the back When Mulvey suggested trying
to organize the three other facilities Burke told him to
go ahead
Davis testimony recounting his first meeting with
Burke is completely at variance with Burke s version
Davis at first agreed with Burke that they met between 1
and 3 April He later changed this testimony to claim the
meeting took place on 9 April based on a single entry of
only Burke s name in his office diary for that day Davis
clung to this version even when shown Burke s 3 April
request to withdraw the Union s petition because of an
agreement to a card check and even after having his at
tention directed to his two 4 April letters one to Region
2 noting the Teamsters withdrawal of request for an in
formal conference on its petition pending resolution of
the issue without need for your intervention and the
other to Burke confirming the Union s understanding of
Shebar s role in examining alleged union members (Tr
898-900)
In the interim before their meeting Davis acknowl
edged he had learned of the Union s petition from Coffee
but denied that Coffee had made him aware of Burke s
26 March demand letter on or shortly after she received
it on 27 March When questioned about his knowledge
of the Unions majority claim set forth in that letter
Davis became quite evasive and only on the third or
fourth attempt to elicit a direct answer did he deny such
knowledge before his first meeting with Burke Nonethe
less the RC petition that Davis admitted receiving early
also specifies that the Union requested recognition as
bargaining representative on 26 March
Coffee testified that if I got [the Union s March 26
demand letter] it was immediately sent to Mr Davis I
55
did nothing with the Union without Mr Davis authority
I probably read it and sent it to him (Tr 935 )
It seems clear that Coffee immediately made Davis
aware of the contents of the demand letter and the peti
tion This conflict between Davis and Coffee must be re
solved against Davis whose evasiveness on this point is
only one example of a generally unconvincing presenta
tion as a witness His testimony undertaken by himself as
counsel in question and answer form is at times ram
bling at other times unresponsive and still on other oc
casions deliberately calculated to avoid the legal conse
quences of his own actions and conduct as party to the
agreement with the Union pursuant to which recognition
in the three residence unit was conditioned on a success
ful majority showing on the impartial third party card
check
It is however Davis recounting of the substance of
his initial meeting with Burke that reveals the incredible
nature of his testimony particularly where it conflicts
with Burke on the elements of the Governments claim
of a reneging on a conditional agreement to recognize
and bargain with the Union According to Davis after
an initial greeting Burke informed him that there had
been a blitz drive and on 26 March they got signatures
and they now had enough signatures for there to be an
election at the agency They filed for an election Davis
asked Burke what he meant by that and Burke respond
ed that if you get 30 percent of the signatures that you
have a right to an election and he also told Davis that
if you get the majority of the agency then you have a
right to have a union without an election but that he
didn t have a majority yet but he was still getting cards
signed and he thought he d get a majority
Davis continued he then asked who signed and Burke
annoyed said You don t expect me to tell you that
Davis continued I can t imagine why and Burke said
Try to figure it out but it s nothing we ever disclose
Davis then asked how was he possibly going to know
whether the Union had 30 percent or any percent Burke
said [T]he way it works is you re supposed to pick a
third party and they review the papers and they decide
whether or not there s 30 percent Davis asked if that is
what happens at the conference9 Burke said Not at the
conference but the person at the conference will tell you
the same thing There s going to have to be a count
Davis then said that confirmed what he had been told by
the Board agent and asked how did they go about it
Burke then mentioned a labor priest Father Carey a
very well known person who would be willing to do
this Davis said that he did not know anything about the
man but he would make some inquiry but whatever
they did there could be a count Before Burke left he
said he was happy with the Teamsters They parted very
friendly As Davis 4 April letter to Burke makes clear
Davis had also agreed that the cost of the check would
be paid by the Union
It is unconceivable that an experienced labor repre
sentative and negotiator such as Burke would enter an
agreement with the Employer for the Union to pay for
an impartial third party check to determine whether the
Union had a 30 percent showing of interest in three em
56 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ployer locations as a condition for holding a representa
tion election among employees at all six employer loca
bons (This is the version Davis seeks to have credited )
Burke was well aware that the RC petition then pending
would include a preliminary investigation of the Union s
showing of interest in the unit sought before further
processing to either an agreed on election or a hearing to
resolve outstanding issues That investigation is conduct
ed without cost to the Petitioner The fact alone that
Burke undertook to underwrite a cost that he knew
would exceed $600 pursuant to the understanding for a
third party check destroys any credibility to Davis ac
count that Burke would pay that sum to satisfy a 30 per
cent showing of interest rather than a majonty showing
leading to recognition and bargaining Burke acted on his
clear understanding of the results of their early Apnl
meeting when he wrote the Region requesting withdraw
al of the Union s petition because of an agreement to
have the Union s majority claim verified outside the
Board Indeed Davis recognized the same agreement
when he informed the Region in his 4 April letter that
he agreed in effect to holding the petition in abeyance
pending resolution of the issues without need for your
intervention What under Davis interpretation would
be the result if as happened the Union not only satisfied
the 30 percent count but also a more than 50 percent
standard? Under Davis account that was not dealt with
but it would normally have been foreseen as a possible
result Furthermore why would Davis admittedly agree
to a showing of interest in only a portion of the unit that
he argues elsewhere is the only appropriate one? Clearly
Davis version makes no sense and is inconsistent both
with Burke s rational straightforward recital and the ex
pectations of the Union and the logic of the circum
stances Davis is discredited and Burke s version of the
meeting is accepted as representing accurately the
Union s majority demand the Company s response and
the agreement reached for an impartial third party check
to determine the Union s majority status in a unit limited
to counselors housekeepers and maintenance personnel
employed at the three residences
Davis version of their second meeting more nearly ap
proaches the truth Davis places the meeting on 8 May
not significantly later than Burke s recollection of early
May Davis places Mulvey in the adjoining room while
he and Burke met After initial greetings Davis said he
had read the report and he guessed Burke had also and
had discussed it with the director and although there
were obvious things that could be disputed the board of
directors felt that there was no reason to create further
antagonism in the agency There obviously were a
number of people who are interested in a union but
whether it was 30 percent was something they could
fight about forever but they had agreed that there would
be an election at the agency and the staff could decide
what it wanted to do It took a little convincing on his
part but the board of directors was going along with it
and they might have had different views about unions
but good luck to you you ve won At this Burke s
mood totally changed he became absolutely furious
hailed a barrage of epithets saying don t try to pull
tricks on me we know what your trying to do I wasn t
born yesterday The Teamsters have a lot of power
don t be certain if you play it this way your going to
have an agency any more and referred to people they
knew in New York State government and stormed out
of Davis office
Davis did not state that the election would be held
among all the agency s employees and I credit Burke s
inclusion of this comment in his recital Basically how
ever Davis agreed with Burke that even before Burke
could make any opening statements relating to negotia
tions or implementing the agreement Davis immediately
spoke about the card check having now satisfied a pre
luminary condition for holding an election and not bar
gaining
Following this meeting Burke and Davis never met
alone again although there were subsequent telephone
calls between them relating to an RM petition filed by
Respondents seeking to achieve an election among all
employees and clients employed at the sheltered work
shop consistent with Davis fictitious claim of the agree
ment the parties had achieved following Shebar s exams
nation Respondent has continued to maintain that no
agreement to recognize and bargain with Local 868 in
the unit limited to the three residences was ever entered
conditional on the Union s demonstrating its majority
status among these employees Other CGS defenses to
the refusal to bargain allegation will be discussed in the
analysis portion of this decision
C Respondents Conduct Directed Toward Employee
Dolores Beckham and Enforcement of the No
Solicitation Rule
Dolores Beckham was employed as a weekend coup
selor at the Berry residence from 28 July 1981 until her
discharge on 15 October 1986 She was the most senior
employee at the Berry residence at the time of her dis
charge
At the end of February 1986 Mulvey visited Berry
and discussed forming a union with Beckham and other
employees Beckham readily agreed to solicit member
ship and pass out union literature Later the same day
she conducted a meeting among employees at Berry to
discuss the Union and handed out authorization cards
During the following week she contacted the Berry
weekday employees to seek their union support and
prior to monthly staff meetings handed out cards and
booklets to them and explained the benefits of the Union
Beckham received back nine signed cards from Berry
employees that she turned over to Mulvey Beckham
was elected temporary shop steward by the weekday
staff to represent them until they could have formal elec
tions She was also elected to represent the Berry group
at a meeting held at union headquarters on 2 May
The 2 May meeting was attended by Burke Mulvey
Beckham and an employee representative from Chelsea
Burke asked the attendees to find out from the staff
members at their residences what they wanted to negoti
ate in their contract and report this information to him
by the following Thursday 8 May (the date of his sched
uled meeting with Davis) Burke also distributed union
buttons to provide to the staff The following day Satur
CONTEMPORARY GUIDANCE SERVICES 57
day 3 May Beckham walked into the residence wearing
several buttons and handed out buttons to the other staff
members also working that day Beckham also wrote a
message in the daily logbook as follows
ALL STAFF
May 3 1986
I am pleased to announce that we are now members
of the Teamsters Union Local 868 On Tuesday 6
P M there will be a Union meeting at Berry to dis
cuss the staff's interests and concerns in the final
union agreement Temporarily I have been appoint
ed shop steward
D Beckham
P S I have attended the 1st Meeting Friday May 2
1986 Attending were the 2 shop stewards from
Chelsea & Yorkville Kevin Mulvey and the Union
lawyer There will be a meeting on Thursday with
the Union lawyer and CGS s lawyer Therefore its
important for you to let us know what you would
like included in the contract by attending the meet
ing on Tuesday calling me at home (evenings up to
1 or 2 AM) or putting your suggestions in the sug
gestion Box (Staff Office)
ATTENTION ALL STAFF
May 3 1986
ANY DISCIPLINARY ACTION- WILL BE
CONDUCTED VIS A VIS THE TEAMSTERS
UNION LOCAL 868
As the Teamsters Union is fully aware Contem
porary Guidance Services has not made a determi
nation whether or not that union is entitled to rec
ognition Unless our Board of Directors voluntarily
decides to recognize the union such a determine
tion will have to be made by the N L R. B There
fore unless and until you are advised otherwise in
writing by either our Executive Director or the
N L R B you do not have to attend any union
meeting or other activity You may nevertheless
do so if you wish provided it does not interfere
with your job functions or responsibilities
N L R B stands for National Labor Relations
Board
Executive Director Coffee explained the genesis of this
memorandum and Gooden s notice in a letter to a Board
investigative agent dated 26 November
Ms Beckham s entry regarding a union meeting
was on Saturday May 3rd Upon the advisement of
our attorney Mr Davis I sent a memo to all resi
dences that there was to be no union business car
ned on during working hours or on the residence
premises
Upon the receipt of this memo the Residence
Manager entered a statement in the log that there
will be no meeting and she clipped my notice to the
page
There was no further reference to this entered in
the log All other entries pertain to general Resi
dence business
* If you have any need for representation in a
union matter please call Dolores Beckham (718)
426-8761 (evenings) acting Shop Steward at Berry
OR Kevin Mulvey (overall Shop Steward) call
Chelsea or his home # 1 (212) 777-8034
The logbook is a book of blank looseleaf pages kept in
the staff office that is used to communicate with working
staff and administrative staff It generally contains mes
sages that report information regarding events condi
tions and health status of clients on a particular work
shift for staff and administration who work different
shifts On 3 May Beckham also constructed a suggestion
box out of cardboard and placed it on a windowsill in
the staff office She had written on it union suggestion
box
A subsequent message appearing in the logbook dated
5 May 1986 and written and signed by Carolyn
(Gooden) the Berry residence manager reads There
will be no union meeting on tues night at the residence
Contact me for details if needed
On the following Saturday 10 May when Beckham
reported for work she also saw the following typed
memorandum on CGS letterheard stapled in the logbook
for the information of the staff
May 5 1986
Memo To All Staff or Urban Residences
From Mr Brad B Davis Attorney for Urban Rest
dences
Coffee confirmed that the memo to which she referred
in this 26 November letter was Attorney Davis 5 May
memo to all staff of urban residences
According to Beckham on the morning of 10 May
Floyd Black then Berry s assistant manager 7 told her
when she walked in there was a message in the logbook
concerning union activities from the main office and also
a message from Carolyn Gooden Black added that
Gooden was very upset about the Union and union ac
tivities and that we could not meet on the premises that
the Union was not recognized It was then that Beckham
read the messages in the logbook That weekend she also
noticed that the suggestion box had been opened and dis
mantled with one message left by an employee folded
open
Beckham also testified that Black had spoken to her
many times about the Union on weekends at Berry He
wanted to know at what stage the union activity was
did she hear anything about the Union On one occasion
Beckham told him they had received a majority of signa
tures but then at one point they were stopped because of
negotiation between the main office
r In its answer to the consolidated complaint Respondent admitted by
failing to admit or deny par 5 which alleges that Coffee Black and
Charles Kemether at all times material have been agents of Respondent
acting on its behalf and have occupied the positions of executive direc
tor supervisor and assistant residence manager See also Respondent s
admission at Tr 291
58 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Black who testified later for Respondent was not
asked about his 10 May conversation with Beckham on
his direct examination but when questioned on cross ex
amination admitted he told Beckham Carolyn must have
been very angry because he had never seen her respond
to any union activities before In view of Black s testimo
ny and Beckham s generally trustworthy presentation as
a witness I credit her account of their conversation Be
sides admitting his status as assistant manager at Berry at
the time he also admitted questioning Beckham during
discussion with her about the Union His curiosity had
been aroused by seeing union literature and pins on the
weekend and although not approached to join because
of his status he learned about the status of the union or
ganizing drive at the three residences from his conversa
tions with her
On Saturday 11 October she and the other counselors
on duty had been scheduled to take all the clients to the
Special Olympics However because it was discovered
about 12 10 p m that the battery for the CGS van had
been stolen the plans were changed to rent a videotape
and provide refreshments for the Berry clients James
Jorge was one of the counselors then on duty who was
to remain in the residence until the 1 p in staff shift
change while Beckham and others left to get snacks and
then on their return was to get the videotape Jorge had
then been employed since 12 May 1984 as a weekend
counselor On their return to the residence Beckham
learned from two members of the weekend staff who had
come in at 1 p in that Jorge said he had to leave because
of an emergency situation and would get in touch with
Manager Gooden Jorge had not punched out Since
Gooden had come to the residence in the interim was
out inspecting the van and had taken the logbook with
her it was unclear whether he had left a note explaining
his absence
As Jorge was then on probation Beckham and the
others had a concern for his continued employment if he
had not left a message Beckham sought to protect Jorge
by writing a note stating that Jorge had an emergency
situation had to leave and would try to come back He
signed it James and put it in her pocket for possible use
if Gooden pressed them about Jorge s whereabouts
Gooden returned to the residence with Paul Challita
and his wife Maha CGS manager of fiscal services and
accounting manager respectively to whom she then
gave a tour of the house and introduced to the staff
Beckham then prepared dinner and other foods for the
clients while another counselor got the tape During a
discussion with one of the afternoon shift counselors
who expressed concern about not having informed
Gooden of Jorge s absence on her arrival Beckham gave
him the note she had written and he with her knowl
edge and consent went to Gooden s office and handed it
to her Gooden went to the kitchen and asked Beckham
what this was and Beckham confirmed that it was the
note that James had written
About 3 45 p in Jorge returned to the residence told
Beckham he had left because of an emergency and was
going to speak to Gooden Beckham then told him that
they had covered for him and she had written a note ex
plaining his leaving Jorge said fine Gooden then invited
him into her office After a few minutes she asked Beck
ham to come to her office When she arrived she saw
Gooden and Jorge there When Gooden again asked
about the note Beckham again said it was James emer
gency note When Gooden then asked Jorge if he had
written it he denied knowledge of the note Beckham
then admitted she had written it Gooden said this could
be grounds for termination and told Beckham she would
talk to her at the end of the day about what she had de
cided on the matter
At the end of the workday Gooden told Beckham she
had not made up her mind she would think about it and
have a message in the office tomorrow On Sunday
there was a written message in the logbook from
Gooden that she would come in that day to speak to
Beckham and Jorge but she did not On the next day 13
October a holiday Beckham received a phone call from
Gooden to go to the main office to discuss the matter
with Coffee and not to show up at the residence until
she had
On 14 October Beckham made an appointment to see
Coffee on 15 October At their meeting alone Coffee
held a document said We re here to discuss the inci
dent that occurred on Saturday Coffee then said I
have it all here a report from Carolyn and therefore
you are terminated Beckham asked what was in that
report and added even an accused person had a right to
hear what was written or said about that person Coffee
started to paraphrase what was in the report Beckham
said I want to know what is in the report Coffee said
What do you mean do you want to read this? Carolyn
tells me that this sort of thing of covering for people
happens all the time and therefore you re terminated
Then referring to Beckham s request Coffee read from
the report but she never gave it to Beckham
After reading the report Coffee said You helped a
crook Beckham then asked Coffee to concentrate on
what she did Beckham said I was in the house I was
working Coffee said Working how could you be
working if you were worrying about James Coffee
then repeated no because as far as she was concerned
Beckham had helped a crook she was terminated and
should not return to the residence and she would be
given 2 weeks severance pay
Coffee did not offer any testimony about the exit inter
view and Beckham s version then stands uncontroverted
and is credited Coffee did confirm on her direct exami
nation that as a result of Gooden s oral and written
report of the incident she promptly decided to discharge
Beckham She did not dispute that this decision was
made prior to affording Beckham any opportunity to re
spond or to review Gooden s report and in spite of the
reservations Gooden had expressed in her report and the
information she provided in it that punching for another
employee was an ongoing but uncorrected problem at
Berry
Gooden s report of the incident dated 13 October
covers four handwritten pages It first summarizes the
events of 11 October including Jorge s admissions he
had left the building during his shift without leaving a
note or calling management and her confronting Beck
CONTEMPORARY GUIDANCE SERVICES 59
ham in front of Jorge who denied writing the note She
did not include that portion of Beckham s account in
which she admitted having written the note and signed
Jorge s name Gooden did not testify I find that Beck
ham did finally admit this conduct when she saw that
Jorge was not prepared to support her initial story
Gooden does report that Jorge sought to remind Beck
ham in the meeting that he had told her to tell Carolyn
that he had an emergency before he left
Gooden in her report then states that she informed
them that actions would be taken against the matter spe
cifically noting James leaving without permission not
notifying appropriate authorities no note in the log the
open lie about the note and Dolores covering up for a
staff member who left without permission It was her
view that James was not going to return and Dolores
would punch out for him if she had not come in
Gooden continued in her report that James has often
left work before his shift ends by entering a note in the
log or just punching out or calling in sick She notes that
Jorge has a written warning and is serving a 3 months
probation In her view punching in and out has been an
ongoing problem at Berry on the weekends She accuses
Beckham among others but admits no proof Gooden
then recommends Jorge s termination and states that al
though Beckham should be terminated also she questions
whether there are sufficient grounds to do so since she
has not been counseled before and not a policy of the
agency to fire someone if caught misusing the time
clock After repeating certain suspicions about Jorge s
and Beckham s conduct Gooden concludes that she had
given the staff several open warnings about punching
in/out for each other at the various staff meetings and
that Berry s staff meeting log could confirm her past ex
pressions of concern
Beckham confirmed that employees covering for each
other was an ongoing problem that Gooden had dis
cussed in a staff meeting and about which she had left a
message in the log In spite of this the practice happened
all the time from administrative staff down No one had
ever been fired for punching or covering for another
and Beckham had never been spoken to or counseled
about it Neither had she been given an opportunity to
resign in her meeting with Coffee nor ever been told
that covering for someone was a dischargeable offense
By letter dated 17 October directed to Coffee Jorge
explained that due to personal reasons he was resigning
his position of weekend counselor effective that day
Respondents written personnel policies effective 1
January 1985 do not include covering for another em
ployee by punching the timeclock or otherwise among
six itemized causes for which an employee may be dis
charged without notice or severance pay Any employee
may be dismissed for any other reason on 2 weeks
notice together with all other accrued benefits It is clear
Beckham did not receive such notice Furthermore a
memorandum on employee counselings dated 28 January
1983 from a then coordinator of urban residences to resi
dence managers and assistant managers still in effect and
not superseded provides for a progressive system of
verbal counselings followed by written counselings for
purposes of correcting employee behavior or providing a
plan of corrective action and to provide a firm base for
disciplinary action None of this policy was followed in
Beckham s case
By letter dated 29 October Coffee in reporting to
Davis her termination of Beckham on 15 October stated
inter alia Ms Beckham though she has been with us
for a long time always was a quiet trouble maker Fur
ther along in the letter Coffee remarks Regarding the
union I never spoke about it to her but the enclosed ex
cerpt from the log indicates her position
During her examination by the General Counsel as a
witness identified with an adverse party pursuant to Rule
611(c) of the Federal Rules of Evidence Coffee ex
plained that she learned about Beckham s having written
about the Union in the logbook from Carolyn Gooden
that the message was something out of the ordinary and
that it disturbed her That report to her by Gooden was
when she first learned that Beckham was for unioniza
tion
D Respondents Conduct Directed Toward Employee
Keim Mulvey and Enforcement of the No Solicitation
Rule
Kevin Mulvey was hired by CGS in December 1985
to work as recreation counselor at the Chelsea residence
on weekends and Wednesdays After receiving back
signed cards that he had distributed in blank individual
ly to employees and at the other residences he turned
them in to Burke Burke later invited him to accompany
him to the 8 May meeting he held with Davis following
issuance of Shebar s report of the results of his card
check Following this meeting at his own suggestion ap
proved by Burke he called each of the facilities other
than the residences to determine union support and
mailed union literature to at least one Earlier he had
called each of the three residences to advise employees
the Union needed a representative from each to help
with collective bargaining and to give him their names
He also attended the union meeting as overall steward
for the residences at which Burke spoke to the assembled
employee representatives about the need to supply him
with bargaining suggestions by 8 May
Approximately 8 days after the 8 May meeting be
tween Burke and Davis on Friday 16 May about 4 30
p in Coffee telephoned him and asked What is this
business about Chelsea? Mulvey declined to discuss the
subject with her on the phone and an appointment was
made to meet on the following Tuesday 20 May
On 20 May Mulvey went to Coffees office Present
were Mulvev Coffee and May Wong director of the
vocational rehabilitation program Coffee said that on
advice of her lawyer she was to tell Mulvey that he was
not to unionize on company time and company property
and that how he got in touch with other people at other
facilities was his problem Coffee added that he was to
cease and desist from organizing even and including
Chelsea where he worked Coffee then asked if he knew
he was doing the wrong thing Mulvey replied yes he
knew the Board s rulings for years had been that you
were not to organize on company time or property
60 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
After this meeting Mulvey made no further attempt to
reach the other facilities
In a memorandum prepared by CGS to memorialize
this meeting it is reported that The issue is before the
NLRB Until the NLRB makes a statement there are to
be no discussions during working hours or on any CGS
premises People are free to speak privately on their own
time
In June Mulvey along with Burke attended an infor
mal conference held at Region 2 of the Board on RM
petition in Case 2-RM-1969 filed by CGS on 23 May
claiming a request for recognition by the Union and list
ing the unit involved as including all employees In at
tendance for CGS were Coffee Attorney Davis May
Wong and Paul Challita Mulvey was the only staff em
ployee within the proposed bargaining unit who was
present Each time Burke asked to meet separately with
the Board agent he left the room with Mulvey to confer
with the agent After some time Davis asked why does
he go out with Mr Mooney [the Board agent]?
Shouldn t he more appropriately be over on indicating
the side of the room where the CGS representatives
were gathered A discussion about Davis objection
ensued Finally Mooney said she would be happy to
meet with any body who so requested
At some point during the conference Coffee asked
Burke where Mulvey came from what his background
was and then said He came from NCR [the National
Cash Register Company where he had worked previous
ly] that s not people that s machines Burke replied
that Mulvey had good values and he did care for people
and that ended the exchange
After periodic staff meetings conducted by the rest
dence manager the employees would remain to discuss
the Union both before and after the card check The
managers left but sometimes the assistant and coordina
tor remained while the employees discussed union mat
ters At one such union meeting held in May after She
bar s card check Clinical Coordinator Connie Callabro
said she wanted the Teamsters out She repeated that
several times She then tried to appoint employees
present to get in touch with the other residences to have
representatives come and try to get the Teamsters out
Callabro repeated this at another staff meeting Callabro
did not testify and Mulvey s testimony in this regard is
credited
Following Shebar s card check in accord with Burke s
instructions Mulvey contacted the employees at the rest
dences to tell them that the card check had come
through the Union had been certified as the bargaining
agent and distributed union buttons stickers and the
like It was in all probability following such contact that
Beckham placed her notice in the Berry logbook on 3
May Mulvey also continued to wear a union button until
his discharge on 12 November
On Wednesday 5 November Charles Kemether Chel
sea s assistant residence manager presented Mulvey with
two pieces of paper which he said Floyd the residence
manager 8 wanted him to sign Mulvey looked at them
8 By this time Floyd Black previously the assistant residence manager
at Berry had been transferred and promoted
and told Kemether he could not sign them because they
were inaccurate and not specific
One paper was a memorandum from Black to Mulvey
dated 30 October initialed apparently by Black stating
in substance that on 18 October Mulvey had adminis
tered medication and failed to follow the agency s proce
dure in that the medication was not listed appropriately
(by name) the clients were placed on home visit rather
than on a trip as they were and the medication given
was not signed for at the time it was given In the
second paragraph the memorandum noted that Mulvey
had shown poor judgment and unprofessional training by
his disclosure in a prior discussion of the matter on 22
October that the assistant had given him directions in
what to do although the assistant was not certified to in
struct in any kind of way
In the last paragraph Black recounts that Mulvey was
given a verbal counseling on 11 June 1986 on medication
procedures and that he was suspended for a day for
medication errors Black then advised that these type of
errors should not happen again
The other paper was a memorandum from Black to
Mulvey dated 6 November stating This is a reminder
that you failed to report for supervision and reporting
the plans for the upcoming recreational events Our past
meetings have been immediately after staff meetings and
I plan to keep it this way
Mulvey reminded Kemether that as to the memoran
dum dealing with administering medication Mulvey at
the time had discussed with Kemether how to list on the
October medication sheet medications that he had given
to clients to take with them on a trip to the former rest
dence managers home On the sheets there was a desig
nation for home visit but he did not recall a designa
tion for trip They had discussed whether to list the
medications under home visit administrative leave
or some other designation Kemether had said he would
take the heat for it and not to worry and Mulvey could
record the medications under home visit About the
other paper Mulvey explained to Kemether that the mi
tial agreement he and Floyd Black had when Floyd had
first come to the residence was they would meet after
the staff meeting But they had since discussed that it
would not be convenient because of so many other ties
and pulls on a managers time and they had than agreed
that Black would call Mulvey when he was ready That
had been the arrangement with the prior manager and
on Mulvey s suggestion Floyd had agreed
Later in the afternoon of 5 November Mulvey was
called to another meeting It was held in Black s office
with Black Callabro and Kemether present Mulvey
was handed a third sheet This was a memorandum from
Black to Mulvey dated 5 November dealing with Mul
vey s having worked unauthorized hours Black notes it
had been brought to his attention that Mulvey had
worked far beyond his scheduled hours on Wednesday
29 October 1986 his card was punched out at 11 p in
Black states he did not authorize Mulvey to work
beyond 8 p in and he should not do so unless approved
by him The memorandum then notes that Mulvey s
schedule on Wednesday is from 2 30 until 8 p in (now
CONTEMPORARY GUIDANCE SERVICES 61
that the staff meeting will be at 2 30 instead of 3 30
p m) Black concludes by emphasizing again Mulvey
would not be paid for extra time not approved by him
and warns that working without authorization would
result in strong disciplinary action
They discussed each memorandum individually
Mulvey insisted he had not worked unauthorized hours
He had an arrangement with Kemether to work 3 to
l lp in due to short staffing It had been his custom for
several months to work those hours evidenced by his
paystubs and he had never been told his starting time
had been changed by 1 hour When Black replied that
Mulvey should know his schedule they looked on the
next dated schedule posted on the wall and through files
and could not locate any that would have provided
Mulvey with notice of the changes
Mulvey again said he would not sign the memorandum
relating to medication errors because it was not accurate
it did not include dates and times of his alleged errors
Mulvey also repeated that he and Kemether had dis
cussed that he would use a home visit designation and he
did not remember a trip designation on the October
charts At this point in the meeting Kemether said he
had told Mulvey he would take the heat for him for
using the home visit designation Also discussed was
the fact that 3 weeks earlier during a supervisory meet
ing Floyd had told him to correct any medication errors
on the medication sheets Mulvey said he had since made
the corrections on he sheets after receiving help in fill
ing them out from a more senior primary (full time)
counselor Jacques Laroche Mulvey noted at the hear
ing that only very occasionally did he supply medication
to clients and then only for them to take on trips so he
was not present when they took it
Concerning Black s memo about Mulvey s failure to
report for supervision timely Mulvey reminded Black
that although Wednesday was their day to meet it had
been his, understanding from previous discussions that
Black would, call him when he was ready that Black
would structure the time and that Mulvey would be at
his convenifpce Accor`d^mg to Mulvey whose testimony
as to this meeting was not contradicted by Black who
did not refer at all to this particular written counseling
Black did not respond to Mulvey s explanation but only
repeated that Mulvey had missed the supervisory meet
ing
Mulvey continued to `refuse to sign the three docu
ments Black then told him that if he did not sign them
he did not need Mulvey there that day Mulvey punched
out and then asked Black about his status Black said he
would call him before the weekend about his status
The following day 6 November Muivey returned to
the Chelsea residence and asked Black in Kemether s
presence to clarify his status Black said he was not
fired that he had not needed Mulvey the prior day He
would let Mulvey know before the weekend that he did
not know which way he wanted to go and the papers
had been sent to the main office On 7 November
Mulvey again returned to the residence went to Ke
mether who left to speak to Black returned and told
Mulvey to leave and report for work at 10 a in Satur
day the next day i
When Mulvey reported for work on 8 November he
went to Blacks office where he found Black and Ke
mether Black again asked Mulvey to sign the papers
Mulvey thanked him for the opportunity but said he was
unable to do so Black then told Mulvey he was to meet
Coffee the following Monday at her office When
Mulvey asked if he could stay and participate in an exer
cise program run by a volunteer that day for the clients
Black told him he could not he was not working that
day and could not stay Mulvey punched out and left
On Monday 10 November Mulvey met Coffee in her
office Paul Challita also attended Later Black came in
The meeting went on for several hours The first topic
discussed was the arrangement for supervisory meetings
Mulvey explained it had been operative under the man
ager that he would meet when she called Challita said
Well its a new regime Lets start over start over
new When the topic changed to the unauthorized
hours Mulvey explained that for the previous months he
had worked basically per diem he had worked a lot of
time and there was never any question that he could not
work past 8 p in because as far as he knew they were
short staffed He was never told to go home During the
month of one pay period he had 101 1/2 hours paid and
no question was ever made of that Again Challita re
marked We paid it That s water under the bridge
Let s get on to new business
On the subject of medication entries Mulvey said that
after he had corrected any errors on the charts as of 20
October at Floyd s direction he had talked to the nurse
he believed on 29 October and she had said as far as she
was concerned the medication in reference to him was
correct and in order Coffee responded that she did not
care what the nurse said
Mulvey recalled that at this meeting and definitely at
another one held on 12 November recreation plans and
budget were discussed Mulvey said money for recrea
tion needs such as trips was nonexistent or in short
supply Mulvey said he had to go into his own pocket to
fund recreation trips and be reimbursed later Mulvey
asked for particulars on the budget Coffee said it was
taken out of petty cash for the moment They discussed
the individual needs of clients Mulvey referred to a
survey he had proposed in October for November to
survey what clients did each weekend so their needs
could be better served but which had not been done A
discussion ensued about the goals of recreation and the
fact that few of the clients-anywhere from four to six-
participated in planned activities Mulvey responded that
a substantial number of clients were living semi inde
pendently there was no compulsion to participate some
went home for weekends two were boyfriend and girl
friend and one noted in his own recreation goal he
would not be seen in a group of retarded people
On 10 November Mulvey was asked to sign the docu
ments but again refused At one point on either 10 or 12
November Challita asked Mulvey if he felt the letters
were an harassment and Mulvey said he felt they were
Coffee then stated they did not allege union activity and
if this was not paranoia she did not know what was An
62 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
other meeting was scheduled for Wednesday 12 Novem
ber at 1 in Coffee s office
Apparently recreation was the main subject discussed
at the conference held on 12 November Mulvey Coffee
and Challita were present throughout and Black came in
sometime doing its course Mulvey was asked what he
would do for recreation for the following weekend
Mulvey agreed to survey the clients needs which he
had done previously to interview them as to ascertain
what proper goals they had and to try and start up an
other recreation program A memorandum of the confer
ence prepared by Coffee lists as its purpose to review the
recreation program and give assistance to Mulvey in
areas of weakness They discussed the purpose of recre
ational activities as outlined in the original plan that
Mulvey helped to develop Many suggestions were
made to which Mulvey agreed as to how he could im
prove the program e g providing better information to
the clients to stimulate their interests and showing more
excitement and making a greater effort to become more
aware of each client s needs likes and dislikes The
memo noted Mulvey s lack of recreational activity expe
pence or background for the position
The matter of signing the counselings came up again
on 12 November At one point Challita asked if he had
signed the papers When Mulvey said no Challita said
You had said you would sign them today to which
Mulvey replied No I said I would address the issue
Near the conclusion of the meeting Mulvey was again
asked to sign the memos Mulvey responded now that
Burke had advised him not to sign them and he would
not sign them When Coffee asked if Burke was running
his life Mulvey did not respond Coffee then said they
had never had a case where someone had refused to sign
counselings or memorandum She said she would call her
lawyer Coffee then telephoned Davis in the others pres
ence and Mulvey heard Coffee respond at one point into
the receiver there is no procedure At a request made
of him Mulvey got on the phone and Davis told him his
union involvement did not matter that he had to sign the
papers it would not be fair to other people who had to
sign them Coffee expressed the same view After Coffee
had completed the call Mulvey sought to excuse himself
to go to the residence Black who was now present said
no Coffee then said she would call the president of the
board of directors and Mulvey waited outside He was
then called back Coffee said she had spoken to the presi
dent of the board and he was through there and if he
did not sign them after he was asked to he was through
Mulvey then got up and left
Mulvey testified he had never been told by any man
agers or supervisors at CGS that refusal to sign counsel
ings was grounds for dismissal He also did not know of
any personnel policy to that effect
Floyd Black testified that he prepared the 30 October
memorandum that asks the employee-in this case Kevin
Mulvey-to acknowledge the fact that he was counseled
verbally about the subject involved Yet the memoran
dum nowhere makes this request or provides a space for
employee signature or acknowledgement 9 Black also
testified that he did not recommend that Mulvey be ter
minated because of the errors he had made in filling in
the medication chart
Black also confirmed that Mulvey had signed a typed
memorandum prepared during the 12 November meeting
in which Mulvey stated that he would be contacting
Chelsea I clients that night and Chelsea II clients on Sat
urday or Sunday to survey their recreational preferences
and then analyze these preferences and have recommen
dations to Floyd with copies for Coffee s review by the
following Wednesday Black testified that it was after
this memo was prepared and signed that Mulvey s refusal
to sign the earlier counselings he had prepared on the
advice of Burke led to his termination
Coffee testified that from the outset of Mulvey s em
ployment because of his lack of prior experience she was
dubious about his ability to perform the function of
recreation counselor although she had approved his
onginal hire on the recommendation of the then Chelsea
residence manager Kate McReynolds and the approval
of the then director of residences Stathe Moraitis
On 8 August 1986 she had met with Mulvey and he
reviewed a philosophy of leisure service and procedure
for planned leisure activities that Coffee had prepared for
his use The procedure included his preparation of leisure
planning and evaluation sheets for future weekend activi
ties for approval by the residence manager meetings to
discuss them with the clients and his preparation of fol
lowup evaluations of the activity for weekly discussion
with the manager Mulvey prepared these planning and
evaluation reports thereafter but Coffee who reviewed
them periodically termed them unsatisfactory His
planned activities museum visits a day at the beach
were not suitable and on average only four to six clients
participated and he did little to generate enthusiasm She
also continued to monitor his performance and conclud
ed it remained at a very very poor level There is no
evidence however that Coffee or Black in the succeed
ing months followed up to ensure Mulvey s adherence to
the plan or to aid him in improving his performance in
these particulars 10 Indeed at his exit interview Coffee
noted Mulvey s willingness to adhere to the guidelines
and improve his performance
Coffee also expressed concern about the accuracy of
logbook medication entrees because of state regulations
9 Other earlier written counselings that Mulvey had received e g one
dated 19 July prepared by Clinical Coordinator Callabor specifically
noted that it was a summary of a verbal counseling and contained space
for both the supervisors and employees written signatures
10 Apparently based on two counselings issued to Mulvey in July by
Callabro one related to a failure to sign for a medication administered
and the other dealing with permitting another staff person to take clients
to a movie in his place and having reimbursed her with moneys he had
borrowed from the petty cash fund Mulvey was suspended with pay on
charges pressed by Callabro After Mulvey filed an unfair labor practice
charge at a hearing in late July attended by Mulvey Burke Callabro
Coffee and Davis among others Mulvey was exonerated and reinstated
without loss of any pay and Mulvey withdrew the charge Davis ac
knowledged that there was a lot of antagonism between Muvley and su
pervisors at Chelsea particularly Callabro The settlement of the charges
also included an agreement to review the entire recreation program and
Mulvey s assignment within CGS but the record does not show there
was any followup on this on the part of Respondent
CONTEMPORARY GUIDANCE SERVICES 63
and funding But Coffee did not dispute Mulvey s re
sponses regarding this subject matter at his exit inter
view his acknowledgement of his errors his subsequent
corrections of them on consultation with a more senior
employee and his verifying his corrections with the
nurse
Concerning Mulvey s refusal to sign the three counsel
rags Coffee testified that in accordance with a memo
sent to all residences and other sites when counseling is
done the person who is counseled signs in recognition of
the fact that he read the counseling that they understood
what it was and they hoped they could do better in the
future They were also permitted to write down com
ments as Mulvey had done in previous counseling ses
sions
Coffee also corroborated Mulvey s characterization of
Challita s participation as concentrating on seeking to
start a fresh slate and then finishing off the discussion of
past events by having Mulvey sign the counseling which
in Chalhta s words were really just more or less a for
mality that did not in any way effect their feeling about
his performance However when Mulvey repeated a
number of times he would not sign on Burke s advise
Coffee confirmed that she called Attorney Davis who
advised her to tell Mulvey that CGS had certain rules
and regulations it lives by and an employee is expected
to go by them and asked to speak to Mulvey directly
Only when Mulvey continued in his refusal on the advise
of Burke did Coffee decide that Mulvey had been insub
ordinate lost her patience and terminated him
In Coffees 12 November memorandum to the board
of directors explaining her action she repeated her un
derstanding that CGS standard procedure calls for the
employee to sign the written counseling with leave to
note any disagreement She concluded by noting that It
became obvious that Mr Mulvey was more interested in
pleasing Mr Burke than continuing as an employee of
Contemporary Guidance Services Inc
When confronted during cross examination with a Jan
uary 1983 memorandum on employee counseling to all
residence managers and assistants from Moraitis coordi
nator urban residences noting copy forward to her
Coffee claimed that it had been superceded by a shorter
revised memorandum When Respondent could not
produce any other writing the next hearing day his
memo was received in evidence as representing outstand
ing CGS procedure and guidelines on the subject Under
paragraph C 3 D relating to written counselings the
memorandum provides in part
If the employee refuses to sign another employee
(preferably a supervisor) should be asked to serve as
a witness to the fact and then sign the counseling
The employee is to be informed that he/she has a
right to attach any comments to the counseling A
copy of the written counseling should be given to
the employee to the supervisor and to the Coordi
nator of Urban Residences with the original filed in
the Personnel Office
Coffee evaded a direct response when asked whether
CGS s own rules and this memo called for another em
ployee preferably a supervisor to sign as a witness on
an employees refusal to sign a counseling She also con
tradicted that the normal procedure on 12 November
would have included her asking one of the people
present to sign the counseling when Mulvey declined to
do so (Tr 979-980 )
Although Black was aware of the January 1983 memo
randum and the procedures outlined in it and although
Supervisor Kemether was also present when he present
ed the three counselings to Mulvey on 5 November he
did not ask Kemether to sign when Mulvey declined but
he did ask Kemether to write a memo stating he was
present and what had taken place That memo was not
prepared and he did not inform Coffee at the 12 Novem
ber meeting of his request to Kemether
That Coffee in particular as well as Davis bore hostil
ity toward Mulvey because of his key role in the union
organizing campaign has been shown by their comments
made to and about him at the representation case confer
ence held in June In addition Davis made repeated ref
erence to the low esteem in which he held the Teamsters
Union In his cross examination Davis sought to establish
that Mulvey sought his job for the sole purpose of orga
razing the employees and had misrepresented his past
employment history on his application in order to mis
lead the Respondent although his claim played no role in
Mulvey s discharge Coffee who had characterized
Beckham as a quiet troublemaker in her 29 October
letter to Davis viewed Mulvey as someone who was
brought in who became an extreme thorn in everybody s
side and caused a great deal of upheaval (Tr 939 )
When the organizing drive was underway she heard that
Mr Mulvey was going to bury Mr Mulvey all of a
sudden appeared at Yorkville Mr Mulvey s name
came up over and over again and I didn t know
what was going on at all but he was flying all
over the place
There is some reason to believe that Coffee was par
ticularly incensed by Mulvey s erroneous listing of the
clients trip to Kate McReynolds house as a home visit
because Respondent believed that McReynolds was
aware of and supported Mulvey s interest in organizing
CGS s work force when she successfully recommended
his employment Davis pursued a line of questioning of
Mulvey seeking to establish such prior contacts between
them Coffee ordered Mulvey to cease any union discus
sions at the workplace and viewed Mulvey s reliance on
Burke s advice for ultimately refusing to sign the coun
selings as his making a choice between pleasing the
union president and his job
Coffee s credibility is suspect She insisted that a re
vised counseling procedure had superseded the one pro
duced by Respondent pursuant to subpoena but could
not produce any such document She evaded any direct
response when pressed about Respondents failure to
apply that procedure to Mulvey at the 12 November
meeting From time to time Coffee manifested a lack of
cooperation as a witness and exhibited a testiness and
loss of her temper by raising her voice and making sar
64 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
castic comments and asides particularly during her cross
examination by the General Counsel
III ANALYSIS AND CONCLUSIONS
A The Alleged Refusal to Bargain
In Summer & Co v NLRB 419 U S 301 (1974) the
Supreme Court affirmed the Board in holding that an
employer does not violate Section 8(a)(5) of the Act
solely by refusal to recognize authorization cards as evi
dence of a union s majority status However in reaching
this result the Board made special note of its reliance
upon the additional fact that the Respondent and the
Union never voluntarily agreed upon any mutually ac
ceptable and legally permissable means other than a
Board conducted election for resolving the issue of
union majority status Summer & Co 190 NLRB 718
721 (1971) The Supreme Court in Summer & Co made
special note that it was not reaching the question as to
whether the same result it reached obtains if the employ
er breaches its agreement to permit majority status to be
determined by means other than a Board election citing
the case of Snow & Sons 134 NLRB 709 (1961) enfd
308 F 2d 687 (9th Cir 1962) as affirmative answer to
this question
More recently in Jerr Dan Corp 237 NLRB 302 303
(1978) the Board declined to follow the recommenda
tion of the administrative law judge that an 8(a)(5) and
(1) allegation be dismissed because the employers oral
recognition that it later repudiated was not reduced to
writing or accompanied by unambiguous objective con
duct confirming the recognition such as the actual entry
into contract negotiations The Board noted the key to
the violation was not further evidence of recognition
but rather the original commitment of the employer to
bargain on some demonstrable showing of majority
Once that commitment was made the Respondent could
not unilaterally withdraw its recognition and to do so
was a violation of the Act Accord Brown & Connolly
Inc 237 NLRB 271 (1978)
Applying those principles to the instant case I con
elude that the General Counsel satisfied the burden of
showing that an agreement had been made for the Union
to seek to establish its majority in an agreed on unit by
means of an objective third party card check and that
once that majority had been established the Respondent
would bargain
Having credited Burke s version of the understanding
arrived at with Davis at their initial meeting it is clear
that they agreed a third party was to conduct a card
check to determine whether the Union represented a ma
jority of the counselors housekeepers and maintenance
personnel employed at the three residences using a spec
ified date to determine the total number of employees in
those job categories at the residences Once Shebar con
firmed the Unions majority Respondents unilateral
withdrawal from its agreement breached its duty to rec
ognize and bargain under the Act i i
" The fact that the Union did not achieve a majority at one of there
locations Yorkville is of no consequence as long as it had a majority in
the agreed on unit at the three residences combined
Contrary to Respondents contention as Attorney
Davis was clothed as an agent with actual authority to
enter such an agreement and even if not Burke was en
titled to rely on Davis apparent authority to act in that
capacity
Regarding Davis actual authority Coffee told Burke
to deal with Davis with respect to the Unions written
demand for recognition and bargaining and Burke did so
The Board has held and Section 2(13) of the Act sup
ports the conclusion that a respondent employer is re
sponsible for its attorneys conduct as long as that con
duct is within the general scope of his agency authority
even though the respondent may not have authorized the
specific acts in question See Batavia Nursing Home 275
NLRB 886 at fn 1 (1985)
There can be no question here that Respondents exec
utive director having referred the Union to its attorney
on the matter of union recognition Davis acted within
the general scope of his authority in dealing with Burke
Thus even if the agreement he reached with Burke was
not specifically authorized Respondent is bound
Regarding Davis apparent authority he was held out
by CGS as its representative for purposes of the union
contact and no notice was provided to Burke that there
was any special limitation on Davis authority to negoti
ate an agreement with him Thus under this theory Re
spondent reasonably led Burke to believe that Davis had
the authority he purported to have see Cablevision In
dustries 283 NLRB 22 (1987) and Respondent is also
bound by the agreement its agent reached
My findings of fact also make clear that Davis claim
that his agreement was conditioned on interview of each
card signer has been rejected No such condition accom
panted the agreement Davis 4 April letter to Burke as
serts in part that [Shebar] will interview [alleged union
members] to determine whether they in fact wish to join
the union and if they do not obtain appropriate state
ments from them Davis did not say all such alleged
members In any event an interview of all such employ
ees was not part of the understanding entered on 3 April
and Davis does not claim he ever made Shebar aware of
this undisclosed condition no copy of the letter was for
warded to Shebar and Davis authorized Burke to make
all followup contacts with Shebar and to be responsible
for implementing their agreement As the parties stipulat
ed on the record not every signer was interviewed
Nonetheless as Shebar reports the results of his check
were based on signature comparisons as well as inter
views with employees from all three residences And
Shebar had before him the Application For Member
ship in Local 868 in which the signer both applied for
membership in the Union and voluntarily choose and
designated it as his representative for purposes of collec
tive bargaining 12 The card did not state that it was for
the purpose of seeking an election
At the parties second meeting even under Davis ver
sion Respondent did not dispute the validity of Shebar s
report Davis comment recognized that the unit of em
12 Contrary to Respondents assertion the two cards admitted into evi
dence Beckham s and Mulvey s are identical in all these respects includ
mg a checkoff authorization
CONTEMPORARY GUIDANCE SERVICES 65
ployees at the three locations are interested in a union
It was only by its answer dated 8 January 1987 and at
the heanng which began later that month that Respond
ent for the first time raised a contention that the Union
did not represent a majority of the card signers because
of alleged misrepresentation in the solicitations that they
were signing for an election only Respondent may not
so belatedly raise this issue as justification for its earlier
refusal to bargain Berbigha Inc 233 NLRB 1476 1494
(1977) Roman Catholic Diocese of Brooklyn 222 NLRB
1052 1054 (1976) enfd in pertinent part sub nom Naza
reth Regional High School v NLRB 549 F 2d 873 800
(2d Cir 1977)
The record is also silent as to any complaint made by
Davis or any other Respondent agent to the Union or to
Shebar about the report s conclusion that the Union had
been authorized to bargain for a majority of CGS s eligi
ble employees Neither did Davis raise any objection to
the Union or Shebar in particular after his receipt of the
report that not all card signers were interviewed
Once Respondents voluntary recognition was estab
lished Respondent had the burden at the hearing assum.
ing its claim not to have been earlier waived of coming
forward with sufficient evidence of union misconduct-
in this case misrepresentations in the solicitation of the
Union cards-in obtaining its majority showing before
Shebar See Royal Coach Lines v NLRB 838 F 2d 47 (2d
Cir 1988) enf denied 282 NLRB 1037 (1987 ) Respond
ent has failed to meet that burden
At the opening of hearing Respondents counsel Davis
requested that he be permitted to call CGS employees
out of turn to testify as to their position on union repre
sentation although he had not previously interviewed
them Thus at that time Respondent had no evidence of
improper union solicitations One employee witness Re
spondent later called Daphne Johnson refused to meet
with Mulvey at the Yorkville residence when he was so
liciting cards because she objected to his saying on the
telephone he had an appointment with her when she had
none with him She understood from her phone conver
sation that his visit was all about getting people to sign
to decide whether or not they wanted to take a vote as
to whether or not they wanted to join the Union She
never signed a card However she also testified that she
overheard Mulvey solicit three other Yorkville employ
ees telling them that he was there to see how many
people would be willing to sign up to look into the
Union if they wanted to join it or not It should also be
recalled that the Union did not achieve a majority of
card signers among eligible Yorkville employees having
signed only one full time and four part time employees
out of seven full time and five part time employees on
the list submitted by CGS
Regarding another employee witness called by Re
spondent who works at Berry residence Beatrice
Reavis I rejected an offer of proof made by Respondent
counsel that when Reavis who signed a card was solic
ited by Mulvey to sign he told her you can just sign
these cards that it does not matter at all it is not impor
tant we just need these signed Part of the offer was that
Reavis was also not interviewed by Shebar Counsel
based his offer on a 1 minute conversation in the hall
before calling her
Respondent in its brief argues that many difficulties
apse because the NLRB refused to allow all the cards in
evidence or even the cards of signatories no longer
working for CGS Yet Respondent counsel never sought
the issuance of a subpoena to require their production
and use during presentation of its case in chief He did
not call another card signer other than Reavis among the
30 whose cards Shebar had validated Neither did he
cross examine Mulvey nor Beckham as to their solicita
tions in obtaining signatures
Given the clear wording on these single purpose cards
and Respondents failure to show by a preponderance of
the evidence that the Union s solicitation of a majority of
the cards was improper 13 Respondents attack on the
validity of the cards must fail
Respondent also argues that the unit in which the card
check was made is inappropriate because it did not in
elude all Respondent facilities and it included profession
al employees who were not provided their statutory
option Both arguments are rejected As an ealier de
scnption of their duties and interaction make clear these
eligible employees at the three residences share a com
munity of interest distinct from the other facilities that
establishes them as an appropriate unit for purposes of
collective bargaining As noted by the Board in a case
involving not dissimilar health care employees a serv
ice and maintenance unit in a service industry is the ana
logue to the plantwide production and maintenance unit
in the industrial sector and as such is the classic appro
prate unit Newington Children s Hospital 217 NLRB
793 794 (1975)
There is little or no contact or integration of personnel
and function with the four counselors at the sheltered
workshop the several workers and teachers at the mini
mall or the evaluators in vocational training at the main
location
If this were a representation proceeding it is fairly evi
dent that the Union could seek the employees in the
three residences as an appropriate unit without requiring
it to seek the most appropriate unit if indeed there is
none more appropriate 114 See e g Omni International
Hotel 283 NLRB 475 (1987) But this is not a proceeding
in which the Board is being asked to define the unit The
parties have done that by means of their own agreement
13 Employees are bound by the clear language of what they sign unless
that language is deliberately and clearly canceled by a union adherent
with words calculated to direct the signer to disregard and forget the ]an
guage above his signature Single purpose cards may only be invalidated
if the employee was actually told that the sole purpose of the card was to
obtain a Board election See NLRB v Gissel Packing Co 395 U S 575
(1969)
14 The limited inconclusive and spasmatic history of bargaining by
Respondent with an in house association representing all employees in
eluding supervisors and professionals between 1982 and 1984 would nor
mally be discounted in making this unit determination See The Develop
ing Labor Law Vol 1 at 421 (2d ed) Neither does Respondents claim
that the eligible employees include professionals ment extended discus
Sion Clearly the counselors are akin to the social work assistants and
social work associates found not to be professional employees within the
meaning of the Act in Child & Family Services of Springfield 220 NLRB
37 38-39 (1975)
66 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
As the Board noted in a similar case in which an em
ployer reneged on a recognition agreement after person
ally checking the cards because it did not include all em
ployees who share a distinct community of interest
This is not a case in which the Board is being asked
to define an appropriate unit to direct an election
or to certify the results of such an election It is
therefore unnecessary to decide whether we would
find the unit appropriate were the issue raised in
such a context
Having voluntarily recognized and bargained
with the Union as the collective bargaining repre
sentative of a unit composed of Penningtan and
Hurley Respondent argued for the first time at the
hearing herein that the unit is inappropriate because
the employees lack a distinct community of interest
We reject this belated attempt to repudiate the vol
untary recognition A contrary holding would fly in
the face of our statutory obligation to promote sta
bility in bargaining relationships [Cardox Division of
Chemetron Corporation 258 NLRB 1202 (1981) ]
B The Alleged Maintenance of an Unlawful No-
Solicitation Rule and Interrogation of Employees
The undisputed facts are that after discovery of Beck
hams 3 May note in the logbook calling for a union
meeting at the Berry residence the following Tuesday
evening the residence director immediately wrote a note
in the same log canceling the meeting and Executive Di
rector Coffee on advice of counsel approved a memoran
dum directed to all staff of urban residences from Attor
ney Davis dealing with the subject of union activity at
Respondents premises At Berry residence the memo
was affixed in the logbook for the information of the
staff Although the memo was phrased in language indi
cating that employees may attend any union meeting or
other activity provided it does not interfere with your
job functions or responsibilities the conduct of Respond
ent s management contradicted this benign advise Thus
Berry Manager Gooden canceled the meeting without
explanation and Executive Director Coffee explained in
writing to the Region that the intent of the memo was
that there was to be no union business earned on during
working hours or on the residence premises
The clear intent of Respondents prohibitions was
brought home directly to the known leading union advo
cates among employees Beckham and Mulvey in lee
tures administered to them by members of management
On 10 May Berry Assistant Manager Black told Beck
ham that Gooden was very upset about her entry and
the employees could not meet on the premises When she
learned he was making union approaches to staff at other
facilities on 20 May Coffee informed Mulvey he was
not to unionize on company time and company property
and how he got in touch with people at other facilities
was his problem She added he was to cease and desist
from organizing even and including Chelsea where he
worked The CGS memorandum confirming this meeting
notes inter alia Until the NLRB makes a statement
there are to be no discussions during working hours or
on any CGS premises Although the memo adds the
sentence People are free to speak privately on their
own time it is clear from the prior restriction that em
ployees own time to discuss labor related matters was to
be off CGS premises
The Board has recently clarified the standard that shall
govern prohibitions on union soliciting on company
property In Our Way Inc 268 NLRB 394 (1983) it
reasserted and readopted the standards set forth in Essex
International 211 NLRB 749 (1974) in which the Board
held that rules that prohibit employees from soliciting
during working hours are presumptively invalid be
cause that term connotes periods from the beginning to
the end of workshifts periods that include the employ
ees own time In doing so it overruled T R W Bearing
Inc 257 NLRB 442 (1981) to the extent that case re
moved the distinction that Essex International had draw
between restrictions on employee soliciting during
working hours on the one hand and such restrictions
on soliciting during working time on the other hand
and found both presumptively invalid Unless the em
ployer shows through extrinsic evidence that its work
ing hours rule was communicated or applied in such a
way as to convey an intent clearly to permit solicitation
during breaktime or other periods when employees are
not actively at work the rule will be found to be invalid
Respondent adopted and enforced a rule that prohibits
any union solicitation business or activity during work
hours or on the residence premises Such a rule is doubly
invalid As it breaches the Our Way standard because it
prohibits any such union activities during employees
working hours it is presumptively invalid Inasmuch as
Respondent has failed to show that it nonetheless permits
solicitation during the employees own time on its prem
ises the rule is conclusively invalid Indeed Respondent
could not show any such intent because by the rule and
its enforcement it not only prohibits solicitations on em
ployees own time but it also prohibits all solicitations
whether on its or the employees own time on its prem
ices
In Republic Aviation Corp v NLRB 324 U S 793
(1945) in which case the Supreme Court first established
the principle that underlays the Board s standards the
Court adopted the presumption prohibiting union solici
tation by employees outside working time although on
company property only special evidence showing the
necessity for the rule would make valid such a restnc
tion No such evidence was offered by Respondent
Surely a restriction prohibiting all solicitation on compa
ny property falls afoul of both the Republic Aviation prin
ciple and Our Way standard I shall accordingly recom
mend that Respondents conduct in this regard violates
Section 8(a)(1) of the Act
On or about 16 May Executive Director Coffee tele
phoned Mulvey to ask him what is this business about
Chelsea When they met the following Tuesday 20
May Coffee s remarks served to clarify the meaning of
her earlier inquiry The purpose of the meeting was to
direct Mulvey to cease all his union activities at CGS fa
cilities The timing of this confrontation was clearly re
lated to Mulvey s visit recent contacts with residences to
CONTEMPORARY GUIDANCE SERVICES 67
select union representatives and submit contract propos
als and his recent solicitations at other facilities following
Davis withdrawal of union recognition at the residences
When Coffee pressed Mulvey to agree that his union
izing on company time and property was wrong she was
clearly seeking to intensify the pressure she had already
applied to him to get him to cease legitimate activities
expressly protected by Section 7 of the Act She was
also attempting to learn more about the depth of Mul
vey s union sentiments and adherence
In Rossmore House 269 NLRB 1176 (1984) the Board
adopted as a test to determine whether interrogations
violate the Act whether under all the circumstances the
interrogation reasonably tends to restrain coerce or
interfere with rights guaranteed by the Act It rejected
its prior holding in PPG Industries 251 NLRB 1146
(1980) that questions concerning union sympathies even
when addressed to open and active union supporters in
the absence of threats or promises are inherently coer
cive
I conclude that Mulvey s interrogation violates the
Rossmore House test Although Mulvey was an avowed
and open union adherent the context in which the ques
tioning took place suggests that he nonetheless was re
strained See Midwest Stock Exchange v NLRB 635 F 2d
1255 1267 (7th Cir 1980) The chain of events started
with a telephone call of a cryptic nature in which the
Respondents executive director sought information
about Mulvey s business at Chelsea Because Mulvey
worked there the inquiry had to do with conduct which
was other than work related the normal chain of com
mand would have been for Mulvey s immediate supervi
sors at the residence to counsel him Coffee s direct con
tact the words she used and the abrupt nature of the
call had the effect of placing Muvley on the defensive
about his current nonwork related conduct at the rest
dence Even though cryptic in nature it is reasonable to
conclude it was directed at his union approaches within
and outside the residence Coffee in effect confirmed
this on her personal followup meeting in her office the
locus of Respondent authority At the meeting Mulvey
was first subjected to the imposition of an invalid no so
licitation rule and then asked to agree with the Employ
er s action At no time was Mulvey assured that he in
curred no risk to his job by participating or by the
nature of his responses The questioning was far from
casual and was directly related to Respondents efforts to
circumscribe outside union organization of its work
force Although not determinative on the issue Mulvey s
own response is revealing As a consequence of the inter
change with Coffee he ceased all further union activities
at Respondents premises I conclude his interrogation
violated Section 8(a)(1) of the Act
C The Alleged Discriminatory Discharge of Dolores
Beckham
Respondent s stated reason for discharging Beckham
was that she had covered up a fellow employees leaving
the residence without permission Yet this incident was
only one in a history of employees covering for each
other at Berry residence about which Respondent had
done hardly anything prior to Beckham s discharge No
employee had been counseled warned or disciplined
and only general warnings had been made at two Berry
staff meetings
That Respondent treated this incident unlike all other
similar incidents that arose in the past is shown b3 the
fact that contrary to CGS s personnel policies Beckham
was not counseled about the matter prior to her dis
charge a procedure required of even serious infractions
not warranting immediate discharge This fact is even
more surprising because Beckham was a longstanding
employee in fact the most senior at her residence whose
work history had been generally satisfactory Of even
greater significance is the fact that James Jorge whom
Director Coffee called a crook for leaving the rest
dence without permission or any notice or punching out
and was already on probation for serious past infractions
was permitted to resign for his offense without incident
although Beckham who had aided him was fired for
hers Such disparate treatment of a known outstanding
union advocate as against an employee without any evi
dent union interest is striking in the extreme Respond
ent failed to mitigate this telling evidence by any expla
nation whatsoever
A more accurate explanation for Beckham s summary
treatment by both Carolyn Gooden Berry s manager
and Pearl Coffee CGS s executive director resides in
the fact they both harbored hostility toward Beckham s
union role in mobilizing support and encouraging partici
patron in collective bargaining at Berry residence Assist
ant Manager Black reported to Beckham that Gooden
was very upset about this Union and her union activities
Executive Director Coffee admitted on the witness stand
that Beckham s union note in the logbook had disturbed
her and in reporting the firing to her lawyer described
Beckham as a quiet trouble maker whose prounion po
sition was evident from her logbook entry
In spite of her hostility however Gooden had evident
reservations about discharging Beckham that she ex
pressed in her report to Coffee Gooden recognized that
punching in and out was an ongoing problem at Berry
and although she suspected Beckham of having done so
previously she had no proof She ended up questioning
whether CGS had sufficient grounds to terminate Beck
ham because she had not been counseled before and it
was not a policy of the agency to fire someone caught
misusing the timeclock Regarding Jorge in view of his
prior written warning and probationary status she had
no hesitancy in recommending his discharge
When confronted with these aspects of Gooden s
report at the hearing Coffee explained in a curt manner
that she did not have to go by what Gooden advised In
stead without providing Beckham with any counseling
or even the opportunity to review or to respond to Goo
den s report or providing the 2 weeks notice required by
CGS s personnel policies Coffee summarily terminated
Beckham
It is evident from the foregoing that Respondent
seized on Beckham s act of covering for Jorge as a pre
text to mask its discriminatory intent in eliminating her
from its work force and I so find I conclude that the
General Counsel has established prima facie that Beck
68 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ham s protected conduct was a motivating factor in Re
spondent s decision to fire her and further that Re
spondent has failed to satisfy its burden of showing that
her discharge would have occurred in any event and for
valid reasons See NLRB v Transportation Management
Corp 462 US 393 (1983)
D The Alleged Discriminatory Warnings to and
Discharge of Kevin Mulvey
The General Counsel alleges that on or about 5 No
vember Respondent issued wntten counselings to
Mulvey that interfered with his exercise of Section 7
rights and thus violated Section 8(a)(1) of the Act These
were the three memoranda dealing with Mulvey s failure
to follow CGS s medication procedures his failure to
report for supervision and reporting his upcoming recre
ational plans and his having worked unauthorized hours
The first two were handed to Mulvey by Kemether but
all three were from Residence Manager Black
None of them referred to or dealt with Mulvey s pro
tected activity Only if found to have been a form of har
assment or interference with such activity may they be
determined to have been a violation of Section 8(a)(1)
The facts show that Mulvey did not comply in all re
spects with Respondents procedures for recording medi
cations that he provided to clients on the day in ques
tion He did not list all medications provided nor did he
sign for all of them and he erroneously listed the clients
excursion as a home visit rather than as a trip Regarding
the claim of Mulvey having worked unauthorized hours
although there is some question whether Mulvey was
placed on notice that his practice of working extra hours
under the pnor manager was no longer being tolerated
there is also no evidence that Black had condoned the
arrangement The memorandum sought to clear the air
and established the permitted parameters of Mulvey s
work hours for the future Similarly concerning the
third memo dealing with the time for their supervisory
meeting the evidence again shows a practice of no fixed
scheduling under the prior manager and even some diffi
culty in keeping the Wednesday time frame since Black
had become manager because of intervening events
nonetheless Black s memorandum appears to be setting
the matter straight for the future and making Mulvey
aware of that fact
In measuring the wntings against the employee coun
seling procedures and guidelines denved from CGS s 28
January 1983 memorandum there appears to have been
some stretching of the guidelines in issuing at least one
and perhaps two of the counselings Thus there is no
evidence that the issue of supervisory meetings had been
previously discussed in a verbal counseling Accordingly
one can disagree with Black s judgment in issuing a writ
ten counseling about it when he did Again the wnting
dealing with unauthonzed hours was not preceded by a
verbal counseling as normally called for under the guide
lines yet the seriousness of the extra hours as a cost
factor to Respondent permitted Black to exercise his dis
cretion here as the guidelines permit Regarding the
medication procedure breaches Mulvey had received at
least one prior verbal counseling regarding this subject in
June He had been verbally counseled on 22 October counselings on 5 November 1986
and the written counseling provided an opportunity for
Black to reemphasize CGS s procedures and deal with
Mulvey s explanation that as to one or more of the
errors he had relied on the Assistant Managers advice
contrary to policy
The form of writing used does not conform with the
guidelines which call for the appropriate form (record
of employee counseling) However other counseling in
the record also appear to have been prepared in a similar
way
The foregoing review of evidence leads me to con
clude that the General Counsel has not sustained the
burden of showing that the written counselings them
selves constitute warnings or forms of harassment to re
frain from union activities in violation of Section 8(a)(1)
of the Act and I will recommend dismissal of this allega
tion Although Black s judgment in setting some of these
complaints in written form may be questioned I am not
convinced that their issuance reasonably tend to interfere
with the free exercise of employee rights under the
Act-the well settled test applied to determine whether
certain conduct constitutes an unfair labor practice under
that section of the Act
The manner in which Respondent issued the counsel
ings and the nature of Respondent s reaction to Mulvey s
refusal to sign them present a significantly different set of
circumstances that form the setting in which to judge
whether Respondent terminated Mulvey unlawfully
Contrary to the guidelines and unexplained on the
record Black the supervisor who issued them 15 did not
give two of them to Mulvey did not formally counsel
him about the problems they presented and did not re
quest him to sign them The supervisor who did Ke
mether had also told Mulvey previously that he would
take the heat for one or more of the errors on the most
serious of the three counselings Thus Black could have
reasonably anticipated some problem over Mulvey s
agreement with the complaint Later after Black with
Kemether present discussed the counselings with
Mulvey and Mulvey refused to sign them he failed to
follow the option specified in the guidelines of requesting
Kemether to serve as witness and to sign them Instead
he conditioned Mulvey s continued employment that day
on his signing the forms and when Mulvey continued to
refuse had him punch out Although he requested Ke
mether to prepare a writing as to these events there is
no record evidence that Kemether did so and Black did
not inform Coffee that he had engaged in this procedure
Although forwarding the counselings and a report to
Coffee about Mulvey s conduct Black probably had
some reservations about some of the transactions be
tween them because he did not recommend Mulvey s dis
charge
I conclude however that Coffee with Davis partici
pation used Mulvey s continued refusal to sign the coun
selings in reliance on union advice as a pretext to termi
nate him from Respondents work force As I have dem
onstrated by a review of the evidence in the factual sec
15 The complaint in error alleges that Kemether issued the written
CONTEMPORARY GUIDANCE SERVICES 69
tion dealing with Mulvey both Coffee and Davis har
bored resentment at Mulvey s single minded effort to un
ionize Respondents residence employees This resent
ment was exhibited at the representation conference on
the witness stand and in the defenses Respondent raised
to the manner in which Mulvey became employed Most
noteworthy Mulvey became the recipient of Coffee s
special and personal interest in her 16 May telephone call
and 20 May meeting with him directed solely to coerc
mg Mulvey to cease his union activities As Coffee well
knew Mulvey was the key union leader among employ
ees who coordinated and led the drive and was the liai
son between the union president and employees
Both Coffee and Davis were aware that an earlier at
tempt to discipline Mulvey led by Clinical Coordinator
Callabro who had sought to get employees to drop their
Teamsters support had proven unsuccessful because it
was made without an adequate basis
The immediate reason for Mulvey s discharge was his
insubordination in continuing to refuse to sign the
written counseling in particular dealing with medication
procedures and relying on union advise for his refusal
Yet during the two sessions to discuss the counselings
and the recreation program at Chelsea residence it had
become evident as Challita noted without objection
from Coffee that Mulvey s signing had become a formal
ity As the testimony makes clear Mulvey had orally ac
knowledged his errors had explained what he had done
to correct them and had been fully counseled and the
discussion had moved on to plans for improvement of
the recreation program Still Coffee pressed Mulvey to
sign the memo She did so in spite of the facts that
Mulvey had consistently refused to sign over four sepa
rate meetings starting with the 5 November one held
with Kemether relying on what he believed were errors
in each and Respondents counseling procedures very
clearly provided a method of dealing with this contin
gency
Futhermore Mulvey s cooperation with the counseling
procedure had been manifested by his signing a memo
randum near the conclusion of the 12 December session
committing himself to survey client recreational prefer
ences analyze them and make recommendations
Thus the purposes of the counselings had been
achieved Mulvey knew why they had been done all the
pertinent issues had been reviewed Mulvey had been
able to respond to each and all decisions as to corrective
action had been taken (see employee counseling memo of
28 January 1983 par C 3 c) By agreeing to have
Mulvey sign the memo relating to his future recreational
program Respondent had condoned Mulvey s past short
comings and thus its continued reliance on them during
the hearing as leading up to the decision to discharge
him must be viewed as an attempt to bolster a defense
that served to shield its true motive
Coffee and Davis dilemma over Mulvey s position
was one of their own making Coffee expressed the view
to Davis in their telephone conversation that there was
no precedure for dealing with Mulvey s refusal Davis
and Coffee both told Mulvey that it would not be fair to
others who had to sign In the face of the Respond
ent s available procedure these comments reflected a
posture that by his stance Mulvey was placing his job at
risk When Mulvey coupled his refusal with reliance on
union advice Respondents director and attorney both
of whom I have found to be unreliable witnesses came
to the conclusion that Mulvey was incorrigible and that
his continued injection of union considerations into his
dealings at the agency would not be tolerated any
longer Mulvey was summarily fired over his refusal to
comply with a formality and Respondent had rid itself of
the thorn in its side Accordingly I conclude that
Mulvey s protected conduct was a motivating factor in
Respondents decision to discharge him and that Re
spondent has failed to prove that it would have dis
charged him for like conduct absent his protected con
duct
CONCLUSIONS OF LAW
I The Respondent Contemporary Guidance Services
Inc is an employer engaged in commerce within the
meaning of Section 2(2) (6) and (7) of the Act
2 Local 868 International Brotherhood of Teamsters
Chauffeurs Warehousemen and Helpers of America
AFL-CIO is a labor organization within the meaning of
Section 2(5) of the Act
3 By promulgating maintaining and enforcing since
3 May 1986 a rule banning any union business discus
sions or solicitations during working hours or on its
premises and in or about May 1986 by interrogating em
ployees concerning their membership in and activities on
behalf of the Union Respondent has restrained employ
ees in the exercise of the rights guaranteed them by Sec
tion 7 of the Act and has thereby engaged in and is en
gaging in unfair labor practices within the meaning of
Section 8(a)(1) of the Act
4 By discharging employees Dolores Beckham and
Kevin Mulvey because they joined and assisted the
Union and engaged in other concerted activities for the
purpose of collective bargaining or other mutual aid or
protection Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section
8(a)(3) and (1) of the Act
5 All counselors and housekeeping and maintenance
employees employed at the Chelsea Yorkville and Berry
residence facilities constitute a unit appropriate for the
purposes of collective bagaming within the meaning of
Section 9(b) of the Act
6 At all times since 26 March 1986 Local 868 Inter
national Brotherhood of Teamsters Chauffeurs Ware
housemen and Helpers of America AFL-CIO has been
the exclusive representative of all the employees within
the above appropriate bargaining unit for purposes of
collective bargaining with respect to wages rates of pay
hours of employment and other terms and conditions of
employment within the meaning of Section 9(a) of the
Act
7 By repudiating and reneging on an agreement to
recognize and bargain with the Union following its dem
onstration of majority status in the agreed on unit as a
result of a third party independent card check thereby
refusing since on or about 8 May 1986 to recognize and
bargain with the Union as the exclusive representative
70 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
of the employees of the above described appropriate
unit Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section
8(a)(5) and (1) of the Act
8 The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act
9 Respondent has not engaged in any unfair labor
practices not specifically found herein specifically Re
spondent has not violated the Act by issuing written
counselings on 5 November 1986 to employee Kevin
Mulvey
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8(a)(1) of the Act
by promulgating and implementing an invalid no solicita
tion rule and by interrogating its employees I shall rec
ommend that the Respondent be ordered to cease and
desist therefrom and take certain affirmative action nec
essary to effectuate the policies of the Act Having found
that Respondent unlawfully discharged employees Dolo
res Beckham and Kevin Mulvey I shall recommend that
Respondent be ordered to reinstate them to their former
positions or if no longer available to substantially equiv
alent positions without prejudice to their seniority and
other rights and privileges and make them whole for
any loss of earnings or other monetary losses they may
have suffered as a result of the discriminations against
them less interim earnings if any with interest therein
as computed in New Horizons for the Retarded 238
NLRB 1173 ( 1987) 16
Having found that Respondent violated Section 8(a)(5)
and (1 ) of the Act by refusing to bargain with Local 868
International Brotherhood of Teamsters Chauffeurs
Warehousemen and Helpers of America AFL-CIO and
its designated agents since on or about 8 May 1986 as
the exclusive representative of its employees in an appro
priate unit I shall recommend that Respondent be or
dered to cease and desist therefrom and on request bar
gain collectively with the Union and its designated
agents concerning wages rates of pay hours of employ
merit and other terms and conditions of employment as
defined in the Order below
On these findings of fact and conclusions of law and
on the entire record 17 I issue the following recommend
ed1s
16 Under New Horizons interest is computed at the short term Federal
rate for the underpayment of taxes as set out in the 1986 amendment to
26 U S C § 6621 Interest accrued before 1 January 1987 (the effective
date of the amendment) shall be computed as in Florida Steel Corp 231
NLRB 651 (1977)
17 Following the close of hearing Respondent counsel and one of its
program directors issued letters directed to Region 2 of the Board and to
third parties with copies to me which made factual claims outside the
record and in one instance at least was made ex parte All this material
has been disregarded in preparing this decision By order dated 16 April
1987 and pursuant to Secs 102 132 and 102 133 of the Boards Rules and
Regulations I opened the record to receive Respondent counsels last
letter to a third party dated 9 April 1987 and my order These docu
ments have been marked ALJ Exhs 3 and 4 Two responses from parties
a letter from Respondents counsel dated 20 April 1987 and a letter from
Respondents executive director Pearl Coffee dated 20 April 1987 were
received and have also been marked in evidence as ALJ Exhs 5 and 6
respectively
ORDER
The Respondent Contemporary Guidance Services
Inc New York New York its officers agents succes
sors and assigns shall
I Cease and desist from
(a) Refusing to recognize and bargain collectively with
Local 868 International Brotherhood of Teamsters
Chauffeurs Warehousemen and Helper of America
AFL-CIO and its designated agents as the exclusive
representative of its employees in the following appropri
ate unit with respect to wages rates of pay hours of em
ployment and other terms and conditions of employ
ment
All counselors housekeeping and maintenance em
ployees employed at the Chelsea Yorkville and
Berry residence facilities
(b) Discharging or otherwise discriminating against
employees in regard to their hire tenure of employment
or other terms and conditions of employment because
they have become members of or engaged in activities
on behalf of the Union
(c) Promulgating maintaining and enforcing a rule
banning any union business discussions or solicitations
during working hours or on its premises and interrogat
ing its employees concerning their membership in and
activities on behalf of the Union
(d) In any like or related manner interfering with re
straining or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) On request bargain collectively in good faith with
the above named labor organization and its designated
agents as the exclusive representative of its employees in
the appropriate unit with respect to wages rates of pay
hours of employment and other terms and conditions of
employment and if an understanding is reached
embody same in a written signed agreement
(b) Offer to Dolores Beckham and Kevin Mulvey im
mediate and full reinstatement to their former jobs or if
those jobs no longer exist to substantially equivalent po
sitions without prejudice to their seniority or other
rights and privileges previously enjoyed and make them
whole for any loss of earnings or other benefits they may
have suffered by reasons of their unlawful discharges in
the manner set forth in the remedy section of the deci
sion
(c) Preserve and on request make available to the
Board or its agents for examination and copying all pay
roll records social security payment records timecards
personnel records and reports and all other records nec
essary to analyze the amount of backpay due under the
terms of this Order
18 If no exceptions are filed as provided by Sec 102 46 of the Board s
Rules and Regulations the findings conclusions and recommended
Order shall as provided in Sec 102 48 of the Rules be adopted by the
Board and all objections to them shall be deemed waived for all put
poses
CONTEMPORARY GUIDANCE SERVICES
(d) Post at its principal place of business located at 500
Eighth Avenue New York New York and at its rest
dence facilities at 193 Ninth Avenue New York New
York 424 East 89th Street New York New York and
47-38 11th Avenue Long Island City New York copies
of the attached notice marked Appendix 19 Copies of
the notice on forms provided by the Regional Director
for Region 2 after being signed by the Respondents au
19 If this Order is enforced by a judgment of a United States court of
appeals the words in the notice reading Posted by Order of the Nation
al Labor Relations Board shall read Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board
71
thorized representative shall be posted by the Respond
ent immediately upon receipt and maintained for 60 con
secutive days in conspicuous places including all places
where notices to employees are customarily posted Rea
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered defaced or covered by
any other material
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re
spondent has taken to comply
IT IS FURTHER RECOMMENDED that the complaint be
dismissed in respect to the allegations that the Respond
ent issued written counselings on 5 November 1986 to
Kevin Mulvey in violation of the Act
js