Edp Medical Computer Systems Inc., Consumer Subscription Center Inc. And Consumers Subscription Service Inc.

National Labor Relations Board - Board Decisions

Jul 24, 1987

284 N.L.R.B. 1232 (N.L.R.B. 1987)

1232 DECISIONS OF T_HE NATIONAL LABOR RELATIONS BOARD
EDP Medical Computer Systems Inc., Consumer
Subscription Center Inc. and Consumers Sub-
scription Service Inc. and Local 888, United
Food and Commercial Workers International
Union, AFL-CIO and Lawrence Wilson and
David Arguelles. Cases 29-CA-11726, 29-CA-
11799, 29-CA-11827, 29-CA-11845, 29-CA-
11909, 29-CA-11917, 29-CA-11996, 29-RC-
6353, 29-CA-12006, and 29-CA-12077
24 July 1987
DECISION AND ORDER
BY CHAIRMAN DtOTSON AND MEMBERS
JOHANSEN AND BABSON
On 8 July 1986 Administrative Law Judge
Steven B. Fish issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel 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,' and
conclusions, to modify his remedy, 2 and to adopt
the recommended Order as modified.3
The judge found, and we agree, that during the
course of an organizing campaign by the Union,
the Respondent engaged in numerous violations of
the Act including unlawfully promulgating restric-
tive work rules, interrogating4 and reducing the
The Respondent has excepted to some of the judge's credibility find-
ings. 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.
We correct the judge's inadvertent error in numbering the subheadings
in sec. MB of his decision Following sec. III,B,5 "The Reduction in
Hours," the remaining subheadings should be renumbered 6 through 13.
In sec. III,A,1 the judge mistakenly noted that Simanowitz rather than
Saffern told Beradhio in a discussion on 4 March that Bernard Gelb
would "forget everything if she (Beradino) forgot everything," and said
that Shaw was a troublemaker and brought in the Union.
2 In accordance with our decision in New Horizons for the Retarded,
283 NLRB 1173 (1987), interest will be computed at the "short-term Fed-
eral rate" for the underpayment of taxes as set out in the 1986 amend-
ment to 26 U.S.0 § 6621. Interest on amounts accrued prior to 1 January
1987 shall be computed in accordance with Florida Steel Corp., 231
NLRB 651 (1977).
'The Respondent excepts to the breadth of the judge's recommended
Order that would require it to read the nonce to its employees in the
presence of a Board agent. Under the circumstances of this case, we find
it unnecessary to include such a provision. Accordingly, we will modify
the Judge's recommended Order by deleting references to the provision.
4 Chairman Dotson disagrees with the judge's finding that the Re-
spondent's director of operations, Sherman Simanowitz, unlawfully inter-
rogated employee Lynda Beradino in March 1985 by asking her what she
thought about the Union. Acknowledging that this question might not be
considered coercive under the standards recently set out by the Board,
the judge, nevertheless, concluded that Beradino's perception of the rhor-
284 NLRB No. 117
working hours of employees, assigning employees
more onerous working conditions, and discharging
and/or refusing to rehire several union adherents
all in an effort to prevent formation of a union at
its facility. However, we disagree with the judge's
findings of violations in the following instances.
1. During March and April 1985 5 the Respond-
ent recalled all outstanding personal loans and
debts that were owed to it. At this time employee
Valentine owed $96 as a result of her failure to re-
imburse the Respondent her jury duty check that
she received from the State of New York. She had
earlier agreed to repay this amount in exchange for
receiving her full salary while away on jury duty
and, beginning in March, the money was deducted
from her paycheck in three equal installments.
Likewise, $75 that employee Burgos owed the Re-
spondent was deducted from his check in equal in-
stallments during April and May.
The complaint alleged that the Respondent un-
lawfully required Valentine and Burgos to repay
their loans because of their activities on behalf of
the Union. The judge dismissed this complaint alle-
gation concerning Valentine noting that she simply
had neglected to repay what she owed and, more-
actor and reason for the questions was sufficiently colored by the perva-
sive incidents of 8(a)(1) conduct already engaged in by the Respondent to
render the inquiry unlawful.
Contrary to the judge's finding, the conversation between Simanowitz
and Beradino in which she was asked her opinion of the Union took
place on the morning of 28 February and not on 4 March 1985. At this
time, the Respondent had just learned of the Umon's presence hours ear-
lier and had not yet embarked on the course of unlawful activity which
the judge believed colored Beradino's perception of the inquiry.
The standard to determine whether an interrogation violated the Act is
"whether under all the circumstances the interrogation reasonably tends
to restrain, coerce, or interfere with the rights guaranteed by the Act."
Rossmore House, 269 NLRB 1176, 1177 (1984), quoting Blue Flash Ex-
press, 109 NLRB 591 (1954); Sunnyvale Medical Clinic, 277 NLRB 1217
(1985). Among the factors that the Board in Rossmore suggested as ap-
propriate areas of inquiry in applying the Blue Flash test to an interroga-
tion are the background, the nature of the information sought, the identi-
ty of the questioner, and the place and method of the questioning.
Applying the above test to the incident in question, the Chairman notes
again that the Respondent had not yet demonstrated discrimination or
hostility agamst union supporters at the time the questioning occurred.
Second, the nature of the question, i.e., "what do you think of the
Union," was general and did not seek specific information, but merely an
opinion. Simanowitz did nothing to afford Beradino a reasonable basis for
beheving that reprisals might be taken against her depending on the re-
sponse she gave.
Finally, the fact that the questioner was a high-ranking management of-
ficial, although relevant, is not controlling. The conversation in which
Beradmo's opinion was sought occurred at her work station in an infor-
mal atmosphere and was more aldn to a social debate in which unions in
general were discussed. During the exchange, Beradino got up from her
computer and left the room as Simanowitz was recounting his father-in-
law's unfavorable experiences years earlier with a union. She returned
and found him still in the room talking to another employee Asked more
than once whether Simanowitz ever threatened her during this conversa-
tion, Beradino answered that she had not.
The Chairman would conclude, therefore, that under the totality of the
circumstances, the Respondent's questioning did not reasonably tend to
restrain, coerce, or interfere with Beradino's Sec. 7 rights and, according-
ly, he would dismiss this allegation of the complaint.
5 All dates are in 1985.
EDP MEDICAL COMPUTER SYSTEMS

1233
over, she was afforded the option of having the
money deducted in lump sum or by installments—a
gesture which the judge viewed as not indicative
of retaliatory conduct. For substantially the same
reasons, we dismiss this aspect of the complaint
with respect to Burgos.
Burgos admitted that he owed the $75 at issue,
but after a lapse of almost 2 months without any
expressed intention of when or how he would
repay the money, the Respondent deducted the
amount in three equal installments beginning on 26
April, just as it had done with Valentine. That
Burgos, like Valentine, was not asked how he
wished to repay his debt, is a distinction without a
difference. If the Respondent was bent on retaliat-
ing against Burgos for his involvement with the
Union, it could have demanded immediate payment
in full. Cf. Kermit Super Value, 245 NLRB 1077,
1082 (1979) (supervisor abrogated terms of loan re-
payment and demanded that employee sign over
his entire paycheck).6
Although the deductions were made from Valen-
tine's and Burgos' paychecks at different periods of
time, it was done in the midst of the Respondent's
election campaign which began on 28 February
and was marked by numerous unfair labor practices
affecting both employees. Valentine's installment
deductions commenced on 5 March at which time
she had repaid none of the $96 that she had re-
ceived on 29 May 1984 from the State for jury
duty. One day earlier on 4 March, however,
Burgos had voluntarily made a payment toward his
loan leaving a balance of $75. When he failed for 7
weeks to make any further payments, the Respond-
ent simply recalled the remaining amount in ac-
cordance with an installment plan comparable to a
different Burgos loan which expired the week
before.
To support his finding of the instant violation,
the judge points to a "past practice" contravened
by the Respondent in which Burgos was either al-
lowed to repay loans when he was able or loan de-
ductions were made only after discussions and with
his consent. Contrary to the judge, we are unable
to discern from the record any evidence of such
past practice.
Burgos had taken out only two loans prior to re-
ceiving the one in question. The repayment terms
of the first loan were not in writing and Burgos
timely repaid it without incident The second loan
was in writing and required full payment within 2
months, but Burgos defaulted. He requested and
6 We note also that, unlike Valentine, Burgos' loan was not recalled in
March during the time his hours were reduced or immediately thereafter
when the Respondent learned that he had attended both a union meeting
and the representation case hearing as a union supporter.
was given an extension and he finally repaid the
loan by asking the Respondent to deduct uniform
amounts from his paycheck over a period of sever-
al months. The terms of the third and final loan
were yet again different in that it was neither in
writing nor was repayment required within a speci-
fied period of time.
If indeed there existed a past practice which was
disregarded with respect to the instant loan, it was
a practice established by Burgos alone. He had re-
sponsibly paid off his prior loans or kept the Re-
spondent continuously informed of any difficulties
he had encountered in meeting his payment obliga-
tion while always promising that payment would
eventually be forthcoming. When Burgos departed
from this habit and failed to make any further pay-
ments toward this third loan after 4 March or to
advise the Respondent when it could expect a
future payment, it called the loan in. Thus, the
timing, as well as the method of the Respondent's
action regarding the loan, may be explained by
Burgos' failure to pay or notify the Respondent of
his intentions, without any reference to his union
activity.
Based on the above circumstances, we fmd insuf-
ficient evidence in the record to conclude that the
Respondent's action in requiring Burgos to satisfy
his debt obligation has violated the Act.?
'Member Babson would adopt the judge's finding that the Respondent
violated Sec. 8(a)(3) and (1) when it, in effect, "called in" the personal
loan it had made to Burgos and deducted payments from his wages for
the remaining amount due. Member Babson notes that the evidence estab-
lishes the elements of timing, knowledge, and animus to support the
judge's finding that Burgos' union activity was a motivating factor m the
Respondent's conduct. He further notes that the judge discredited the
Respondent's asserted defense that its conduct was motivated by financial
difficulties and agrees with the judge's finding that the Respondent has
not demonstrated that it would have taken the same action with respect
to Burgos, absent his union activity.
Contrary to his colleagues, Member Babson does not find that the Re-
spondent's treatment of Valentine and Burgos reflect distinctions without
a difference. Thus, the record shows that Valentine had agreed to pay
the Respondent money she had received for jury duty m January 1984
and that when in March 1985 the Respondent asked Valentine for this
money, it gave her the option of paying it in one lump sum or in install-
ments. In contrast, Burgos had been given a $200 loan on 28 February
1985 and had repaid $125 of it on 4 March. At that time Burgos was
warned not to become involved with the Union and nothing was said to
him concerning when and how the remainder of the loan was to be
repaid. Some 7 weeks later and after Burgos had disregarded its warning
by engaging in union activity, the Respondent, without any discussion
with him, began deducting payments from his wages. Further, Member
Babson agrees with the judge's finding that the Respondent treated
Burgos differently regarding the repayment of the instant loan than it had
with respect to his prior loans, and particularly his second loan. Thus,
with respect to the second loan, after Burgos had defaulted in making
repayment under the terms of the loan, the Respondent neither "called
in" that loan nor deducted payments from his wages without his prior
knowledge. In Member Babson's view, the General Counsel has estab-
lished a prima facie case of unlawful conduct that has not been rebutted.
Accordingly, he would adopt the judge's fmdmg of a violation.
Member Babson and Member Johansen note that no excepnon has been
taken to the judge's dismissal of the allegation that the Respondent violat-
ed the Act by refusing to help Burgos prepare his tax return as promised
Continued
1234 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2. The judge concluded that the Respondent vio-
lated the Act by constructively discharging em-
ployee Sarahnie Smith. We cannot agree with this
conclusion.
Two weeks after the Respondent learned of the
Union's presence, it announced to most of its em-
ployees, including Smith, that their hours would be
cut in half and that the reduction in hours would
last for 2 weeks.8 In fact, the reduction lasted 3
weeks before the employees were restored to full-
time status.
During the second week of the reduction, Smith
was offered a job at a bank where her application
had been on file for more than 5 months. During
the third and final week of the reduction, Smith ac-
cepted the bank job. However, it was not until the
following week when everyone was restored to
their normal work schedule that Smith formally
submitted her resignation.
To establish a constructive discharge, it must
first be proven that the burdens on the employee
caused, and was intended to cause, a change in
working conditions so difficult or unpleasant as to
force the employee to resign. Second, it must also
be shown that these burdens were imposed because
of the employee's union or other protected con-
certed activities. See Groves Truck & Trailer, 281
NLRB 1194 (1986); Union 76 Auto Truck Plaza, 267
NLRB 754 (1983).
The judge concluded that the Respondent's ac-
tions in eliminating Smith's overtime and reducing
her working hours were sufficiently "difficult or
unpleasant" to force her to resign. Accordingly, he
found that the Respondent violated Section 8(a)(3)
and (1) of the Act by constructively discharging
Smith. As noted, we reverse this finding.
In our opinion, Smith's working conditions did
not become so intolerable to force her to resign.
The proper standard requires not only that the
change in working conditions be difficult and un-
pleasant, but that the change be so difficult and un-
pleasant that it forces resignation. Algreco Sportswear
Co., 271 NLRB 499, 500 (1984). We have affirmed
the judge's conclusion that the elimination of
Smith's overtime and reduction in her hours were
unlawful acts of discrimination and the Respondent
will be ordered to make her fmancially whole for
her lost hours. But it does not follow that the mere
existence of discrimination is sufficient to warrant
because that was not a "term or condition of employment." While a
change in a term or condition of employment is a predicate to an 8(0(3)
or unilateral-change 8(a)(5) violation, a reprisal against employee exercise
of Sec. 7 rights may come in many forms and still "interfere with, re-
strain, or coerce" employees. E.g., Advertisers Mfg. Co., 280 NLRB 1185
(1987).
s One week earlier, the Respondent eliminated the overtime of Smith
and several other employees.
consideration of abandonment of employment as a
constructive discharge, for if that were the case,
then any discrimination violative of the Act fol-
lowed by a quit by the discriminatee could be
termed a constructive discharge. Algreco Sports-
wear, supra. We decline to adopt such a construc-
tion of the Act.
Further, we note that no other employee whose
hours were cut and overtime eliminated sought em-
ployment elsewhere or resigned during this 3-week
period. Nor did Smith renew efforts during this
time to find another job. It was the bank to which
she had applied 5 months earlier that contacted
Smith and offered her a job. 8 Although we apply
an objective test in constructive discharge cases, it
nevertheless remains relevant that neither Smith
nor her fellow workers seem to have found that
conditions at the Respondent had become so un-
bearable as to force their resignation.
Finally, we find inapposite the two cases relied
on by the judge to support his conclusion that
Smith was constructively discharged. Each case in-
volved an employee who suffered a retaliatory re-
duction in hours which was substantially more
severe in both degree and duration than that expe-
rienced by Smith. In City Service Insulation Co., 266
NLRB 654, 659 (1983), the employee received only
7 hours work over a 2-month period after filing a
grievance under his collective-bargaining agree-
ment. In Sullivan Transfer Co., 247 NLRB 772, 775
(1980), the employee worked just one 8-hour day
after a complaint was lodged against the employer
and was told that hourly assignments would never
improve. By contrast, Smith worked half time with
no overtime for just 3 weeks. Accordingly, we dis-
miss that part of the complaint that alleges Smith
was constructively discharged in violation of Sec-
tion 8(a)(3) and (1) of the Act."
9 The judge thought it significant that the bank job, which paid $57
more per week than Smith's base salary at the Respondent, was not
"better," He explained that when one adds to Smith's base salary figure
the $100 in overtime pay that she averaged each week, her job at the
Respondent was more attractive.
Smith testified, however, that she was offered the choice of working
overtime at the bank and, furthermore, unlike the Respondent, the bank
paid 50 percent of medical costs. Thus, it would appear that when Smith
submitted her resignation telling Judith Gelb that she was leaving for a
"better" job, she was correct.
" Notwithstanding our reversal of the constructive discharge violation
with respect to Smith, we agree that the Respondent unlawfully refused
to rehire Smith when she attempted to rescind her resignation 1 week
later. We reject the Respondent's defense , that Smith had been replaced
and that it maintained an "established policy" of denying reemployment
to those who leave for another job or become "unhappy" at the Re-
spondent. In, fact, Smith had not been replaced and the Respondent's "es-
tablished policy" had not been invoked m the past against other employ-
ees who sought and were granted reinstatement to their jobs. Further,
the Respondent admitted that it considered Smith "unhappy" because she
attended the representation case hearing and sat with union supporters.
Accordingly; we affirm the judge's conclusion that Smith's support for
Continued
EDP MEDICAL COMPUTER SYSTEMS 1235
The dismissal of the above allegations does not
affect our agreement with the judge that a bargain-
ing order is warranted because we find the remain-
ing unfair labor practices fully support the issuance
of a bargaining order. NLRB v. Gissel Packing Co.,
395 U.S. 575 (1969). Thus, the judge found, and we
agree, that the Respondent violated the Act by
threatening, warning, interrogating, and promising
benefits to its employees as well as putting employ-
ees under surveillance, promulgating restrictive
work rules, reducing working hours, eliminating
overtime, assigning more onerous working condi-
tions, and discharging and/or refusing to rehire
several union adherents. The Respondent's viola-
tions undermined the Union's majority status and
destroyed the laboratory conditions under which
the election was held and its postelection violations
indicate that the Respondent continues to harbor
fierce antiunion animus which precludes the hold-
ing of a fair rerun election.11
the Union, which resulted in the reduction of her hours and loss of over-
time, was also the basis for the Respondent's decision not to rehire her, in
violation of Sec, 8(aX1), (3), and (4) of the Act. Heritage Nursing Home,
269 NLRB 230, 234 (1984).
Member Babson would find, essentially for the reasons stated by the
judge, that employee Smith was constructively discharged in violation of
Sec. 8(a)(3) and (1). Initially, he finds that the Respondent's unlawful
changes in Smith's working conditions, i.e., her placement on part-time
status and the virtual elimination of her overtime hours, resulted in such
substantial reduction in Smith's earnings to make her continued employ-
ment with the Respondent untenable He further finds, in agreement with
the judge, that the evidence shows that the Respondent's unlawful
changes I caused, and were intended to cause, Smith to quit. Thus, he
notes that the judge credited Smith's testimony that she would not have
accepted the Chemical Bank job had she not been placed on part-time
status and not had her regular overtime hours eliminated. He also agrees
with the judge that the evidence shows that the Respondent intended to
force Smith to quit based, inter ails, on its statements to employees Val-
entine and Beradino in May, after Smith had left the Respondent's
employ, that because of their union activities they should be looking for
another job and that, if they did so, the Respondent would give them a
favorable, recommendation as it did with Smith.
Furthermore, contrary to his colleagues, Member Babson finds no
merit to the Respondent's contentions that Smith voluntarily quit because
at the time she announced her decision to leave, she told her supervisor
she was leaving for a "better job" or because at that time she had been
restored to full-time status. In so doing, he does not find Smith's state-
ment to her supervisor controlling for, as noted by the judge, under
Board piecedent Smith's failure to inform her supervisor of the true rea-
sons for her departure, here the discriminatory reduction in her hours,
does not preclude a finding that she was constructively discharged. Fur-
ther, Member Babson agrees with the judge that the Chemical Bank job
was not, in fact, a "better job" when that job was on the night shift and
it paid §mith less than what she would have been earning had the Re-
spondent not discriminatorily reduced her working hours. Finally, al-
though Smith had been restored to full-time status at the time she told
the Respondent she was leaving, as the judge found, there was no cer-
tainty how long she would continue in full-time status and her regular
overtime hours had not been restored. Based on the foregoing, Member
Babson ,finds that the elements of a constructive discharge have been es-
tablishail with respect to Smith and, accordingly, he would adopt the
judge's finding of a violation.
" Ccimpare NLRB v. Gordon, 792 F.2d 29 (2d Cir. 1986); NLRB v. 1
Coty Messenger Service, 763 F.2d 92 (2d Cir 1985). The Respondent has
not argued, and there is no evidence in the record, that employee turnov-
er is a factor mitigating against a bargaining order. United Artists Commu-
nicationS, 280 NLRB 1056 fn. 4 (1986).
AMENDED CONCLUSIONS OF LAW
Substitute the following for Conclusions of Law
6 and 7.
"6. By discharging and refusing to teinstate em-
ployees Esther Shaw, Joy Scott, an-il Lawrence
Wilson, refusing to permit Saralmie Smith and
Megaly Lopez to rescind their resignations, curtail-
ing the overtime assignments of employees Ivy
Valentine, Linda Beradino, and Sarahnie Smith, re-
ducing the working hours of its employees, chang-
ing or enforcing more strictly work rules with
regard to personal phone calls, smoking, and radio
playing, issuing written warnings to employees, and
assigning employees more onerous and less agree-
able work because of the employees' support for
and activities on behalf of the Union, Respondent
has violated Section 8(a)(1) and (3) of the Act."
"7. By refusing to permit Sarahnie Smith to re-
scind her resignation because she appeared at a
Board representation hearing, the Respondent has
violated Section 8(a)(1) and (4) of the Act."
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, EDP Medical Computer Systems Inc.,
Consumers Subscription Center Inc., and Consum-
ers Subscription Service Inc., its officers, agents,
successors, and assigns, shall take the action set
forth in the Order as modified.
1. Substitute the following for paragraph 1(h).
"(h) Reducing overtime assignments or working
hours of employees, changing or enforcing more
strictly work rules with regard to personal phone
calls, smoking, radio playing, or other plant rules,
issuing written warnings to employees, or assigning
employees more onerous and less agreeable work
because of their activities on behalf of or support
for the Union."
2. Substitute the following for paragraph 2(c).
"(c) Remove from its files any references to the
discharges of Esther Shaw, Joy Scott, and Law-
rence Wilson, the written warning issued to David
Burgos, and the resignations of Sarahnie Smith and
Megaly Lopez, and notify these employees in writ-
ing that this has been done, and that evidence of
these unlawful terminations and warnings, as well
as the refusal to accept the recision of resignation
from Sarahnie Smith and Megaly Lopez, will not
be used against them in any way."
3. Delete paragraph 2(g).
4. Substitute the attached notice for that of the
administrative law judge.
1236 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT question you concerning your ac-
tivities or sympathies on behalf of Local 888,
United Food and Commercial Workers Internation-
al Union, AFL-CIO or those of other employees.
WE WILL NOT threaten you with discharge,
blacklisting, closing or moving the facility, elimi-
nating our practice of granting personal loans to
employees, stricter enforcement of tardiness, ab-
sence, and other work rules, that we would never
recognize or negotiate with the Union, or the as-
signment of more onerous working conditions be-
cause of your support for or activities on behalf of
the Union.
WE WILL NOT warn or instruct you not to
become involved with the Union.
WE WILL NOT solicit grievances from you and
indicate a willingness to rectify them in order to
undermine the Union.
WE WILL NOT promise you the restoration of our
practice of granting personal loans to you, addi-
tional sick days, raises, that we would forgive and
forget past transgressions by you, or other im-
provements in your terms or conditions of employ-
ment, to induce you to withdraw your support for
the Union or to fail to vote in a Board election.
WE WILL NOT engage in surveillance of your
union meetings or your other union or concerted
activities.
WE WILL NOT discharge or refuse to reinstate
you, or refuse to permit you to rescind your resig-
nations or otherwise discriminate against any of
you because of your activities on behalf of or sup-
port for the Union or any other labor organization.
WE WILL NOT reduce your overtime assignments
or your working hours or change or enforce more
strictly work rules with regard to personal phone
calls, smoking, radio playing, or other plant rules,
or issue written or oral warnings to you or assign
you more onerous or less agreeable work because
of your activities on behalf of or support for the
Union or any other labor organization.
WE WILL NOT discharge or refuse to permit you
to rescind your resignations because you appeared
at a Board representation hearing.
WE WILL NOT in any other manner interfere
with, restrain, or coerce you in the exercise of your
right to self-organization to form, join, or assist
Local 888, United Food and Commercial Workers
International Union, AFL-CIO or any other labor
organization, to bargain collectively through repre-
sentatives of your own choosing, and to engage in
other concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection,
or to refrain from the exercise of such activity.
WE WILL offer Esther Shaw, Joy Scott, Sarahnie
Smith, Megaly Lopez, and Lawrence Wilson im-
mediate and full reinstatement to their former posi-
tions of employment or, if these jobs no longer
exist, to substantially equivalent positions, without
prejudice to their seniority and other rights and
privileges previously enjoyed.
WE WILL make whole Esther Shaw, Joy Scott,
Sarahnie Smith, Megaly Lopez, Lawrence Wilson,
Ivy Valentine, Linda Beradino, and the employees
whose hours we unlawfully reduced on and after
12 March 1985, for any loss of earnings and other
benefits suffered by them as a result of our discrim-
ination against them, plus interest.
WE WILL remove from our files any reference to
the discharges of Esther Shaw, Joy Scott, Law-
rence Wilson, the written warning issued to David
Burgos, and the resignations of Sarahnie Smith and
Megaly Lopez, and notify these employees in writ-
ing that this has been done, and that evidence of
these unlawful terminations and warnings, as well
as the refusal to accept the recision of resignations
from Sarahnie Smith and Megaly Lopez, will not
be used against them in any way.
WE WILL recognize and, on request, bargain
with the Union as the exclusive collective-bargain-
ing representative of our employees in the appro-
priate unit described below with respect to terms
and conditions of employment of such employees
and, if an agreement or understanding is reached,
embody such understanding in a signed agreement:
All data entry operators, computer operators,
computer programmers, production and main-
tenance employees, drivers, collection employ-
ees, and office clerical employees employed by
EDP Medical Computer Systems Inc., Con-
sumers Subscription Center Inc., and Con-
sumer Subscription Service Inc. at their facili-
ty at 143-11. Archer Avenue, Jamaica, New
York, excluding all other employees, guards
and supervisors as defmed in the Act.
EDP MEDICAL COMPUTER SYSTEMS
INC., CONSUMERS SUBSCRIPTION
CENTER INC. AND CONSUMERS SUB-
SCRIPTION SERVICE INC.
EDP MEDICAL COMPUTER SYSTEMS 1237
Elias Feuer, Esq., for the General Counsel.
David Jasinslo; Esq. (Grotto, Glassman & Hoffman), of
Roseland, New Jersey, for the Respondent.
Kenneth Morgan, Esq. (Vladeck Waldman, Elias & Engle-
hard, P.C.), of New York, New York, for the Charg-
ing Party.
DECISION
STATEMENT OF THE CASE
STEVEN B. FISH, Administrative Law Judge. Pursuant
to a number of -charges filed by Local 888, United Food
and Commercial Workers International Union, AFL-
CIO (Local 888 or the Union), Lawrence Wilson, and
David Arguelles, the Regional Director for Region 29
issued a series of complaints and amended complaints on
various dates between 26 April 1985 1 and 4 September.
Additionally, the Regional Director on 12 August and 13
September issued orders consolidating the various CA
cases with Case 29-RC-6353 for hearing. 2 The various
complaints, which were also amended in certain respects
at the hearing before me, allege that EDP Medical Com-
puter Systems Inc., Consumers Subscription Center Inc.,
and Consumers Subscription Service Inc. (Respondent)
violated Section 8(a)(1) of the Act by unlawfully threat-
ening, warning, interrogating, and promising benefits to
and surveilling its employees; by promulgating restrictive
work rules, transferring employees, assigning employees
to less desirable shifts and more arduous working condi-
tions, subcontracting unit work, eliminating overtime, re-
ducing working hours of employees, and by discharging
and/or refusing to reinstate employees David Arguelles,
Esther Shaw, Joy Scott, Sarahnie Smith, Lawrence
Wilson, and failing to rehire these employees as well as
Megaly Lopez, Respondent has allegedly violated Sec-
tion 8(a)(1), (3), and/or (4) of the Act. Finally, the com-
plaint alleges that Respondent has violated Section
8(a)(/) and (5) of the Act by refusing to recognize and
bargain with Local 888 as the exclusive collective-bar-
gaining representative of its employees.
The trial on the above allegations was held before me
in Brooklyn and New York, New York, over the course
of 20 hearing days between 19 September and 25 No-
vember.
Based on the entire record, including my observation
of the demeanor of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION
EDP Medical Computer Systems Inc. (EDP) is a New
York corporation located in Jamaica, New York, en-
gaged in providing computer services and related serv-
ices. Consumer Subscription Center Inc. (Consumers or
Consumers Center) is also a New York corporation lo-
cated at the same address and engaged in the business of
providing sweepstakes entry forms, collection services,
and related services. Consumers is a wholly owned sub-
1 All dates are in 1985 unless otherwise indicated.
2 The objections by Local 888 to the election conducted parallel m
part the instant unfair labor practice allegations.
sidiary of EDP, and they have been affiliated businesses
with common officers, ownership, supervision, and have
formulated a common labor policy affecting employees
of the operations. Additionally, Consumers Subscription
Service Inc. is a wholly owned subsidiary of Consumers
Center.
It is admitted and I find that EDP and Consumers
each performed services valued in excess of $50,000 for
and in enterprises located in States other than the State
in which it is located.3
I find that EDP and Consumers individually and col-
lectively called Respondent, are now and have been em-
ployers engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.4
It is also admitted and I find that Local 888 is a labor
organization within the meaning of Section 2(5) of the
Act.
H. FACTS
A. Respondent's Business
Respondent provides computer services to hospitals
and medical facilities. Its functions include the produc-
tion and processing of accounting and other statistical re-
ports and records, as well as billing and collection work
to its customers, which include hospitals and agencies of
the city of New York. Additionally, it provides an "on
line" function for Bronx Lebanon Hospital, which con-
sists of a telephone-connected service that enables the
hospital to have immediate access to data and vital infor-
mation stored in the Employer's facility by means of a
computerized telephone linkup system between the two
facilities.
Bernard Gelb is Respondent's president and chief op-
erating officer in overall charge of all its operations. His
wife, Judith, is secretary-treasurer of Respondent, and its
director of personnel. Sherman Simanowitz is the direc-
tor of operations, and Matthew Saffern is vice president
of operations and director of data processing.5
Respondent's employees are administratively divided
into the data processing or data entry department, com-
puter services, office clerical, including collections and
maintenance. Saffem is responsible for overseeing the
computer and data entry operations.
Within the data entry department, Ivy Valentine had
the title of supervisor during the period(' material.7
Finally, Respondent employed Joseph Silvagnoli, who
the record discloses has from time to time used various
3 Based on admissions in Respondent's answer.
4 The record also reveals another independent ground for the assertion
of jurisdiction over Respondent in that it performs services valued in
excess of $50,000 for agencies of New York City.
5 It is admitted and I so find that all the above-named individuals are
supervisors and agents of Respondent.
6 Respondent asserts that Valentine was a supervisor within the mean-
ing of Sec. 2(11) of the Act.. The General Counsel takes the position that
she was not. Daniel King has the title of collections manager, and super-
vises employees in the office clerical and collections department.
In this instance the General Counsel asserts that King is a supervisor
under Sec. 2(11) of the Act and an agent of Respondent. Respondent dis-
agrees claiming that King is merely a senior employee.
1238 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
titles such as controller and/or assistant to the presi-
dent. g
B. Appearance of the Union
Local 888's organizational drive at Respondent was in-
stigated by employee Esther Shaw. She had, by some
means unexplained in the record, obtained an authoriza-
tion card for Local 888. She signed it on 16 January and
mailed it to the Union, with a notation on the bottom of
the card reading, "Please contact me at home-evenings."
Shortly thereafter Vicki DePietro, an organizer for
Local 888, called Shaw at home and discussed the orga-
nization of Respondent's employees. They agreed to
meet at 5 p.m. on Friday, 1 February, at the Respond-
ent's facility. This time was chosen because the Gelbs,
Saffern, and Simanowitz are all observant Jews who or-
dinarily leave work early on Fridays.
DePietro arrived at Respondent's facility at 5 p.m. as
arranged. She went to the reception area and asked to
see Shaw. The receptionist contacted Shaw who came to
the reception area and escorted DePietro on a brief tour
of the operation. During this time both Silvagnoli and
Dan King asked Shaw who DePietro was. Shaw re-
sponded, "This is my friend Vicki." She did not tell
either Silvagnoli or King that DePietro was a union rep-
resentative. Shaw and DePietro continued to the com-
puter room where they met with employees Ivy Valen-
tine, Sarahnie Smith, Linda Beradino, and Robert Roth.
DePietro distributed authorization cards to the ern-
ployees present, along with several pieces of union litera-
ture, detailing the process of unionization, the rights of
employees under the Act, and the history of the Union
and its accomplishments. DePietro reviewed some of the
benefits of belonging to a union, as well as the unioniza-
tion process. She explained that the signing of a card au-
thorizes the Union to negotiate for and represent the em-
ployees. She told the employees that if a majority of the
workers signed cards, the Union will request Respondent
to voluntarily recognize it. If Respondent refused, at that
point, the Union would file a petition for an election at
the Labor Board.g
Roth, Valentine, Smith, and Beradino signed and dated
cards on that date and returned them to DePietro."
Roth told DePietro that he did not want Bernard Gelb
to know about his signing because he was at that time
negotiating with Gelb for a return from part-time to full-
time status.
On 8 and 19 February 1985, DePietro conducted addi-
tional organizing meetings at the Gold Coast Restaurant.
During these meetings, employees Megaly Lopez and
8 Respondent asserts that Silvagnoli is a rank-and-file employee, while
the General Counsel contends that he is a 2(11) supervisor and agent of
Respondent.
9 The above summary of what DePietro stated to the employees is
based primarily on DePietro's credited testimony. I do not credit Roth's
testimony that DePietro told the employees that "nothing would be final-
ized until an election was held." I find it more likely that rDePietro's
comments about an election were as she described them, particularly
since her testimony is consistent with the literature that she handed out at
that tune
" The cards are single-purpose authorization cards, which state "I
hereby authorize Local 888, U.F.C.W., AFL-CIO to represent me for
the purpose of collective bargaining."
Larry Wilson signed authorization cards dated 8 and 9
February, respectively, and returned them to DePietro.
On 28 February, about 8:30-9 a.m., DePietro and an-
other union organizer began to hand out union literature
to Respondent's employees outside its premises. The leaf-
lets included a leaflet announcing a union meeting for
employees of Respondent to learn about the benefits of
joining Local 888 for that evening at 5 p.m. at the Gold
Coast Restaurant.
About 9:15 a.m. Judith Gelb came outside and ap-
proached DePietro. Gelb asked DePietro who had called
in the Union. DePietro replied that this was confidential
and she would not disclose this information. Gelb re-
sponded that she would be coming to the meeting. De-
Pietro informed her that she was not allowed to attend.
Gelb asked why not, because the leaflet referred to em-
ployees. DePietro answered that Gelb would be consid-
ered management and was not welcome. She added that
if Gelb were to attend, it would be considered surveil-
lance.
Around 11 a.m. Silvagnoli approached Shaw in the
computer room. Referring to DePietro who was then
outside distributing leaflets, Silvagnoli told Shaw "that
girl looks familiar." Silvagnoli added that Shaw should
be very "careful with this union meeting business."
A few minutes later Dan King approached Shaw in
the computer room. King informed Shaw that one of the
bosses had spoken to him and asked him to attend the
union meeting and "be a spy." King cautioned Shaw that
she should be very careful during the meeting because
there "will be spies at the union meeting?"
On observing the union officials leatletting, Saffern,
Bernard Gelb, and Simanowitz had a meeting among
themselves to discuss the situation. They each expressed
their dismay and chagrin over the appearance of a "for-
eign force," and did not understand why it was happen-
ing. They decided that Gelb and Simanowitz would
divide up the employees and speak to them about the
matter. It was concluded that Respondent would try at
these meetings to find out what the problems were that
caused the employees to seek a union, and to see what
could be done about alleviating or neutralizing these
concerns."
Simanowitz also indicated that if there were any prob-
lems that the employees had, they could have come to
management to discuss them, and that he (Simanowitz)
did not know what the Union could do for them that
management could not, if only employees had talked to
management.
" The above findings relating to conversations between Shaw and Sil-
vagno/i and King are based on the undenied testimony of Shaw.
12 From the testimony of Simanowitz and Saffern. Simanowitz con-
ducted his meeting on 28 February with the data entry department em-
ployees. Present were employees Megaly Lopez, Anna Goodall, Merce-
des Herasi, Ivy Valentine, Joy Scott, Sarah= Smith, and other data
entry workers, as well as Simanowitz. Sunanowitz began the meeting by
stating that he was aware that an effort was being made to organize Re-
spondent's employees, and That a union meeting was scheduled for that
evening. He added that management would prefer not to have a union,
but that it could not stop the effort Simanowitz encouraged employees
to attend the meeting and find out what the Union had to offer.
EDP MEDICAL COMPUTER SYSTEMS

1239
Simanowitz also recounted to the employees the expe-
rience of his father-in-law with the ILGWU. He ex-
plained that his father-in-law was a cutter of women's
coats, but because of the seasonal nature of the industry
was unemployed for 6 months out of the year. Si-
manowitz added that although his father-in-law was ca-
pable of performing other jobs in the industry such as
cutting dresses or other garments, he was discouraged by
the ILGWU from seeking these positions while on
layoff. His father-in-law was told that this would put
others out of work, and instead he was encouraged by
the ILGWU to go on unemployment.
Simanowitz concluded the meeting by expressing puz-
zlement about why the employees needed a union be-
cause Respondent always had an open-door policy. He
then asked if employees had any questions. There were
none. One employee, Mercedes, stated that she was not
interested in a union and the meeting concluded."
Later in the day, Simanowitz approached employee
Linda Beradino in the computer room. He asked her
what she thought about the Union. Beradino replied that
unions have good points and bad points. She added that
there was a union in her prior job at Roosevelt Hospital,
but that she was a manager and was therefore not a
union member.
Bernard Gelb met on 28 February with employees
Richie Wiemert, Earl Haynes, and Larry Wilson in the
back of the facility, near the compactor. Gelb began by
indicating that he was aware of the fact that there was
going to be a union meeting that evening. He said that
he was not telling the employees whether they should go
to the meeting, but he wanted to let the employees know
that if the Union were to come in, employees could no
longer talk to him one-to-one, and there would be no
more personal loans. Gelb added that he would also
become stricter with respect to tardiness and absence.
Gelb then asked the three employees if they were
going to the meeting that night. All three employees re-
plied that they did not know."
About 3 p.m. Judith Gelb called employee Jorge Lee
into her office. She told him that he would be attending
the union meeting that evening, and that he should not
sign anything."
At approximately 5 p.m. on 28 February, Bernard
Gelb told Joe Silvagnoli that he should take employees
Jorge Lee and Art Summers to the union meeting, and
that they should return to the office after the meeting to
let Gelb know who attended and whatever other infor-
13 The above is based on Sirnanovvitz' testimony, essentially corrobo-
rated by the testimony of several employees who were in attendance.
14 The above based on a compilation of the credited testimony of
Wilson and Haynes. Gelb testified that he merely told employees that the
Company always maintained an open-door policy and that the only way
for employees to find out if the Union is for them is to go and find out. I
credit, as noted, the employees' version of the meeting. I was most unim-
pressed with Gelb's testimonial demeanor throughout the hearing. He
was frequently argumentative, and often extremely evasive, claiming that
he did not remember or did not know, in response to a number of ques-
tions where I find it unlikely that he would not be able to answer. In this
instance I note that his testimony differs from that of Haynes, who was
called as Respondent's own witness. I therefore have not credited Ber-
nard Gelb, in most instances where his testimony conflicts with that of
other witnesses.
15 Based on Lee's uncontradicted testimony.
mation that they may have. About 5:05 p.m., Silvagnoli
told Lee "let's go Jorge," and they walked over to the
union meeting together. Lee did not punch out, and was
in fact paid overtime for the time that he attended the
meeting.
The above description of the events of 28 February is
based on the credible testimony of Lee. While Gelb did
not deny the conversation between he and Sllvagnoli,
Gelb did assert that he was not on the premises between
3 and 6 p.m. on 28 February because he was attending a
meeting at Bronx Lebanon Hospital at that time. As
noted above, I do not credit Gelb, as this testimony con-
flicts with that of Lee. While Silvagnoli denied Lee's as-
sertions, and in fact denied going to the meeting with
Lee, I do not credit Silvagnoli either. I found Silvagnoli
to be less than candid in many of his responses, clearly
attempting to tailor his testimony to what he believed to
be favorable to Respondent. For example, he claimed
that Gelb was not at Respondent's facility at any time
during the day on 28 February, which is contrary to
Gelb's own admitted testimony that he was there earlier
in the day and in fact conducted a meeting with employ-
ees. Additionally, Lee's testimony is consistent with the
testimony of DePietro that Judith Gelb informed her
that she intended to come to the union meeting and De-
Pietro responded that she could not do so; with Shaw's
undenied testimony that Silvagnoli and King warned her
about going to the meeting, and told her that there
would be "spies" there; and with Lee's prior undenied
testimony that Judith Gelb earlier in the day told him
that he would be attending the meeting.
The union meeting was held as scheduled on the
evening of 28 February. In addition to DePietro and an-
other union organizer, the following employees of Re-
spondent were present: Shaw, Beradlino, Valentine, Lee,
Silvagnoli, King, Marilyn Nosel, Joy Scott, Lucy Mai-
sonave, Earl Haynes, David Arguelles, and Art Sum-
mers.
DePietro passed around an attendance sheet to be
signed by the employees. All the above-named individ-
uals signed the sheet, except for Lee, Silvagnoli, and
Summers. 16 However, someone, not disclosed by the
record, wrote on the sheet "also in attendance Arty,
George, Joe." DePietro explained that the purpose of the
sheet was to document the union activity of employees.
She continued that if a worker returns to work and is
discriminated against because of their union activity,
there would be proof of such activity as attendance at a
union meeting.
DePietro again handed out the same union literature
that she distributed at the 1 February meeting, along
with authorization cards. She again explained the union-
ization process including the fact that if a majority of
workers signed the authorization cards, the Union would
go to Bernard Gelb and request recognition. If the Em-
ployer refused, then the Union would file a petition for
an election with the NLRB. An employee asked what
the boss would do to the workers if he found out that
15 As noted above, Lee had been mstructed by Judith Gelb not to sign
anything at the meeting.
1240 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
they signed cards or attended the meeting. DePietro ex-
plained that workers under the NLRA have the right to
organize, to come to union meetings, and to sign authori-
zation cards, and that if there is any retaliation by the
Employer because of their union activity, the Union will
file charges with the Board.
During the course of her presentation, Dan King inter-
rupted DePietro several times making various antiunion
statements. DePietro finally admonished King that she
was running the meeting, and the meeting will proceed
according to her agenda.
The meeting then moved on to a discussion about the
benefits of joining the Union, with employees Shaw, Val-
entine, and Beradino speaking up in favor of joining the
Union. King suggested that employees tell their problems
and gripes to him, and he would speak to Bernie Gelb
and see what could be done about working them out
Beradino then questioned whether King would be suc-
cessful in this effort, bringing up a past incident involv-
ing insurance where workers had gotten together and re-
quested a plan from management. Beradino then accused
King of being a supervisor and a member of manage-
ment. King and Beradino argued about that subject,
without any final resolution. King admitted at the meet-
ing that he was a supervisor, and that he could and had
exercised the right to hire and fire employees However,
King still insisted that he was not part of management
and had a right to be in the Union. In fact, King signed
an authorization card at the meeting, dated 28 February
1985.
There was also a discussion at the meeting about the
supervisory status of Beradino and Valentine, with De-
Pietro concluding at the close of such discussion that
they were not supervisors since they do not hire or
fire.17
After the meeting ended, Silvagtioli instructed Lee and
Summers to return with him to Respondent's premises.
When they returned, Bernard Gelb was present, and Sil-
vagnoli reported to Gelb information about what tran-
spired at the meeting. Silvagnoli told Gelb who had at-
tended the meeting, and added that the union official
running the meeting (DePietro) had been the person who
had previously visited the office and met with Shaw, and
was introduced to Silvagnoli by Shaw as Shaw's
"friend."18
After the 28 February meeting, employees Arguelles
and Scott executed authorization cards dated 27 and 28
February, respectively, and mailed them to the Union.
During the month of March 1985, Local 888 obtained
additional signed authorization cards from Richie Wie-
17 The above description of the events of the meeting of 28 February
is based on an amalgam of the credited testimony of DePietro and em-
ployees Lopez, Valentine, Lee, Beradmo, Wilson, and Shaw.
18 The above based again on the credited testimony of Lee. Silvagnoli
and Gelb claim that they had no conversation on 28 February about the
meeting. They assert that the next day, 1 March, Gelb asked Silvagnoli
who attended the meeting, and Silvagnoli rephed, "everybody." I do not
credit this testimony because I fmd it inconsistent with Lee's credited tes-
timony, for the reasons described above in assessing Lee's credibility vis-
a-vis Gelb and Silvagnoh. Moreover, I find it illogical that Gelb would
be satisfied with an answer by Silvagnoli that "everybody" attended,
which was in itself not accurate because a number of employees were not
m attendance.
mert, Earl Haynes, David Burgos, Marilyn Nosel, Lucy
Maisonave, and Haresh Shah, dated 5, 5, 11, 22, 26, and
27 March, respectively.
Respondent contends that the authorization cards of
Haynes and Maisonave should be invalidated. As for
Haynes, it relies on Haynes' testimony that a few days
before he signed his card, in a conversation outside the
plant, DePietro informed him that by signing a card, he
would not necessarily be in the Union, but it was to pro-
tect employees from retaliation. According to Haynes,
he asked DePietro if he would be in the Union if he
signed a card. She replied no, but further down the line
there would be an election held that would decide
whether the workers would be in the Union or not.
I would note, however, that Haynes was at the union
meeting of 28 February, and admitted that DePietro told
the employees therein that once the Union had a suffi-
cient number of cards, she would go to the bosses and
ask for recognition and that, if the bosses agree, the
Union would be able to negotiate on the employees'
behalf.
As for Maisonave, the record reveals that she was also
present at the 28 February meeting, and testified that
DePietro requested that employees sign the cards for
"better benefits." She did not sign a card on that date,
but did so on 26 March while being visited at home by
two union organizers. They gave her an authorization
card and asked her to sign once again "for better bene-
fits."
Maisonave signed the card, but asked the organizers if
she could keep it and mail it in later. However, the orga-
nizers took the card and left.
Maisonave asserts that she did not read the card, but I
do not credit this testimony because her pretrial affidavit
clearly states that she read the card as well as signing
and filling in the date on 26 March.
C. Personnel Actions on or After 28 February
On or after 28 February, Respondent effectuated sev-
eral personnel actions, which the General Counsel con-
tends were violative of the Act.
1. Alleged changes in work rules
On 28 February, Respondent's employees were noti-
fied through the switchboard operator that employees
would no longer be permitted to receive personal phone
calls during working hours. In fact, a number of calls
were made on that day to employees, but the callers
were not put through, and were told that a message
would be taken, contrary to past practice.
For example, Socorro Rentes, an aunt of employee
Megaly Lopez, had called Lopez at Respondent some
two to three times a month, would speak to the recep-
tionist, and would eventually be put through to speak to
Lopez. 19 On 28 February, Rentes called and asked to
speak to Lopez. Judith Gelb then took the call and asked
who Rentes was and what did she want. Rentes replied
that she was Lopez' aunt and needed to get in touch
with her. Gelb responded that she would give Lopez the
' 9 Lopez had been an employee of Respondent since July 1983.
EDP MEDICAL COMPUTER SYSTEMS 1241
message. However, Lopez received no message on that
day from Gelb or anyone else at Respondent.
While the record reveals that on 31 May 1983 Re-
spondent posted a notice setting forth various rules in-
cluding "no personal calls except during breaks or
lunch," it is clear that this notice was not up for very
long, and was in fact not enforced by Respondent.
In this connection, I do not credit Judith Gelb's unsup-
ported testimony that personal phone calls are put
through only during lunch or breaktimes, but not during
working hours. The mutually corroborative testimony of
employees Valentine, Beradino, Lopez, and Smith, as
well as Rentes as noted above, establishes that Respond-
ent has permitted phone calls to be taken by employees
at all times. Indeed, the testimony of Matthew Saffern,
Respondent's supervisor and witness, confirms the testi-
mony of the employees in this respect, as he testified that
he was unaware of any company policy against receiving
personal calls, and in fact complained that the employees
used the phone for inordinate amounts of time.
On 1 March a notice was posted on the bulletin board
forbidding personal phone calls except during breaks or
lunch, as well as radio playing and smoking.
Respondent offered no testimony whatsoever with re-
spect to the subjects of radio playing or smoking. The 31
May 1983 notice that had been posted did also prohibit
radio playing, but made no reference to smoking. How-
ever, the uncontradicted testimony of various employees
establishes that Respondent had in fact permitted both
smoking and the playing of radios by its employees.
Respondent presented no testimony or other evidence
concerning why it decided to institute these changes in
company practice. While Respondent's position is that
these items did not constitute a change in policy, but
merely a reaffirmation of current company practice, it
offered no explanation about why it chose 28 February
and 1 March to renotify employees of its allegedly cur-
rent rules and regulations.
2. Alleged elimination of overtime
Overtime at Respondent is purely on a voluntary basis
and is dependent on business conditions. In the data
entry department, overtime started in November 1984,
and continued to be assigned periodically based on the
needs of the operation.
Saffern would decide on the necessity for overtime, in
consultation with Ivy Valentine, who had the title of su-
pervisor in the department, Valentine would ask the em-
ployees if they wished to stay on a particular evening. In
fact most of the employees in data entry did not wish to
work overtime, and most of the overtime in the depart-
ment was performed by Valentine herself and Sarahnie
Smith." Valentine and Smith, for the four payroll peri-
ods ending in the month of February 1985, worked over-
time each week, averaging 11.69 and 11.54 hours per
week, respectively, of overtime during this period.
Linda Beradino, a computer operator, worked over-
time on almost a regular basis." The procedure would
20 On occasion Joy Scott would agree to and work overtime.
21 For various periods of time, she was the only computer operator
employed by Respondent.
be that Saffern would assign Beradino various jobs to
complete, and Beradino would have the discretion to
decide whether she needed to work overtime on a par-
ticular day in order to complete her assignments. Bera-
dino averaged from 15 to 20 hours of overtime per week
through her career at Respondent. During the four pay-
roll weeks ending in February 1985, she worked over-
time each of these weeks, and averaged 14.06 hours of
overtime per week during this period.
On Friday, 1 March, Beradino, Smith, and Valentine
were all working overtime in the computer room. About
5:30 p.m., Judith Gelb burst into the room, screamed at
the three employees to leave the premises immediately
because she was closing up the building. As the employ-
ees were leaving, Gelb handed Valentine a message that
her daughter had called her. Gelb also told the employ-
ees to read the message on the bulletin board.
Apparently this message was the aforementioned noti-
fication of employees with regard to personal calls,
smoking, and radio playing. The notice also stated there
would be no more overtime unless specifically assigned
by Saffern.
Gelb and Silvagnoli then escorted the employees out
of the premises and to their cars.22
On Monday, 4 March, Saffern told Valentine that
henceforth there would be no more overtime. Valentine
made no reply and the conversation ended. Thereafter,
overtime assignments for Valentine, Smith, and Beradino
virtually ceased.
Valentine received no further overtime work until a
few weeks prior to the instant hearing, when she was
asked by Lynda Jackson and agreed to work some 12-
1/2 hours of overtime over a 3-week period prior to 26
September.
As for Smith, she received no further overtime assign-
ments, except for one day at some point subsequent to 1
March, when Saffern asked her and she agreed to work
a one-half to 1 hour overtime.
Beradino was permitted to work 3.5 hours of overtime
during the payroll week ending 19 April, but received no
other overtime work.
Prior to 1 March the only other employee of Respond-
ent who appeared to work overtime with any regularity
was Jorge Lee, who worked in collections. He averaged
11 hours per week of overtime during February 1985.
Lee, however, continued to receive overtime assign-
ments throughout March at least through the end of
June 1985. In fact, in several of the weeks during this
period, his overtime hours increased to 16.50, 17, 23, 28,
and 33 hours per week.23
The record also reveals that overtime hours were also
worked by employees Lucy Maisonave and Terry Rhett,
clerical employees, during various weeks between 10
May and 28 June, Robert Roth, a programmer, on vari-
ous weeks between 12 April and 28 June, and by an em-
ployee named Wazir Kamil (classification undisclosed by
22 This was the first and only time that employees had ever been es-
corted out of the premises and followed by management representatives
to their cars.
23 Weeks of 5/10, 4/19, 5/24, and 5/17, respectively.
1242 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the record), on various weeks between 17 May and 28
June. 24
Judith Gelb and Matt Saffern testified on behalf of Re-
spondent with respect to the reduction of overtime
hours. Their testimony in this regard was, to say the
least, somewhat inconsistent.
According to Judith Gelb, in late February or early
March, because of financial difficulties that Respondent
was experiencing, a decision was made by Respondent to
eliminate overtime for its employees. Judith Gelb was
neither present nor involved with this decision, but as-
serts that she was informed by Bernard Gelb that the de-
cision had been made. Although Bernard Gelb testified
as did Sherman Simanowitz, neither of them furnished
any testimony with respect to the subject of curtailing or
eliminating overtime.
Matt Saffern did testify, and interestingly asserts, that
as far as he was aware, no decision was made to either
reduce or eliminate overtime by Respondent at any time.
He attributed the reduction in overtime hours for the
data entry employees such as Valentine and Smith to the
fact that Respondent made a decision to eliminate the
process of verification, which data employees had previ-
ously performed. This procedure, which is in effect a
process of checking work, required additional time, and
according to Saffern, he and Simanowitz decided that it
could be dispensed with. Saffern claims that he notified
Valentine of this decision, and that as a result of the
elimination of the verification requirements, overtime no
longer became necessary.25
As for Beradino, Saffern admitted that the verification
change had no effect on the loss of her overtime. Ac-
cording to Saffern, Respondent hired David Arguelles to
work in the department under Beradino, and in Saffern's
view, Arguelles' presence contributed to the lack of the
necessity for Beradino to work overtime."
D. The Alleged Discharge of Esther Shaw
Esther Shaw was employed by Respondent as a pro-
gramer since January 1983.
On Friday, 1 March, about 2 p.m., Shaw informed
Matt Saffern that due to an emergency situation at home,
she would have to leave early that day. She added that
she would probably be able to make up the time on the
next Wednesday. Shaw also told Saffern that there were
two or three items that she was in the middle of, and
would complete these tasks on Monday. Finally, Shaw
left herself a job reminder in the computer concerning a
job that was to be completed on Monday, 4 March.
Shaw punched out and went outside to her car. As she
was driving her car out, Bernard Gelb came running
over to her with an envelope in his hand. Shaw rolled
24 In this connection Maisonave worked overtime the weeks ending
10, 17, and 31 May, and 7, 14, 21, and 28 June, averaging 6.5 hours per
week; Rhett worked the weeks of 17 and 21 May, averaging 10.18 hours
of overtime; Roth worked overtime regularly between the weeks of 12
April and 21 June, averaging some 10 hours per week; and Kamil's over-
time hours averaged 13 hours per week, working overtime each week
from 17 May through 28 June.
25 Saffern could not recall precisely when the decision to eliminate
verification was made.
26 Arguelles was hired on 8 February.
down her car window and Gelb handed her the enve-
lope, saying, "you resigned. You got that job in Tennes-
see." Shaw responded that she had not received a start-
ing date. Gelb repeated that she had resigned and had
gotten a job in Tennessee. Shaw repeated that she had
not gotten a starting date and finally said to Gelb, "Are
you sure you want to do this? You're going to be getting
a letter."27 Gelb replied, "You don't know me," and re-
peated that comment seven or eight times. Inside the en-
velope was a check for her wages. 28
Also highly relevant to the issue of Shaw's termination
are two undenied and credible conversations between
Linda Beradino and various of Respondent's officials.
The first such conversation occurred on Monday, 4
March, the first workday after Shaw was terminated, in
the computer room. Saffern asked Beradino, "Between
you and me wasn't it Esther that brought in the Union?"
Beradino replied that she could not tell one way or the
other and that even if she knew she would not tell him.
Beradino then continued that all the employees wanted
was for Respondent to sit down and recognize the Union
and find out what the employees' gripes were, and that
she could not believe what had happened to Shaw. Saf-
fern replied that Esther had resigned. Beradino respond-
ed, "Come on Matt, Esther didn't resign, Bernie resigned
her." At that point Simanowitz entered and said that he
had overheard what was being said. Beradino repeated
that all the employees wanted was for Respondent to sit
down and recognize the Union and see what the prob-
lems were and Bernie "went crazy on us." Simanowitz
replied that "Bernie would never recognize the Union."
Beradino answered that there were bigger men and
larger companies that accepted a union, what makes
Bernie so different? Simanowitz reiterated that "Bernie
will never recognize a Union."
Beradino then opined that it was too late for the em-
ployees to turn back because Bernie would never forget
what went on. Simanowitz responded that he thought
that Bernie would forget everything..
Simanowitz and Saffern then left the room. A few
minutes later, Saffern came back into the room and in-
formed Beradino that he was pretty sure that if she
would forget everything Bernie would forget everything,
as long as Beradino would say that Esther was a trouble-
maker and had brought in the Union. Beradino an-
swered, "In no way will I do that." The conversation
concluded and Saffern walked out.
The other conversation took place on 13 May, and
will be described more fully below. However, during the
course of this conversation between Beradino and Gelb
about the Union, Gelb admitted that he had gotten rid of
Shaw because he was a troublemaker, and that he
thought that everything would quiet down after that.
Gelb also gave reasons to Beradino about why he
thought that Shaw had brought in the Union.
Returning to Shaw's situation, in fact she had not re-
signed, and did not have a job in Tennessee, effective 1
27 Shaw was referring to an "iimnunity" letter that the Union was in-
tending to send to Respondent.
28 Normally checks are distributed on the Tuesday following the prior
payroll week which ends on Friday; however, 1 March was a Friday.
EDP MEDICAL COMPUTER SYSTEMS

1243
March. Shaw had been interested in leaving Respondent
since November 1984, and she openly expressed dissatis-
faction with living in New York. In early February
Shaw had received an offer to work for a consulting
company, which had promised her a job at a firm in
Tennessee. She was told that there was a possibility of a
starting date sometime in March.
She informed Saffem sometime in February of these
developments, and added that as soon as she finds out a
definite starting date, she would let Saffem know, and
put her resignation in writing, as per company policy.29
A few days later Saffem asked Shaw to tape record
information about the projects that she was working on,
so as to make the transition easier after she left. Shaw
had not made these tape recordings as of 1 March.
After she left Respondent on 1 March, she did not
accept a job in Tennessee because she never received a
starting date from the company, as she had been prom-
ised.
On 13 March Shaw interviewed in New York for and
accepted a new position with Informatics General Cor-
poration, to work at the company's facility in Denver,
Colorado, starting 18 March.
On 13 March Shaw filled out an employment applica-
tion for Informatics. In the space on the form reading
"reason for leaving" EDP, Shaw wrote "resigned."
Shaw testified credibly that she wrote the word "re-
signed" on this application, after consultation with her
father, who advised her to do so, after she told him that
she had been fired as a result of her union activity. Her
father suggested that having a reputation in an industry
as being involved with unions would seriously jeopardize
her chances of continued employment.
Respondent's position is simply that Shaw notified it
that she was resigning and accepting another position as
of 1 March, and that it did not terminate her. In support
of this assertion, Bernard Gelb testified that on various
occasions in February, Shaw specifically told him that
she had accepted a job in Tennessee and would be leav-
ing on 1 March. One of these conversations, according
to Gelb, occurred in the tape library at lunch and was
allegedly in the presence of Saffern, Shnanowitz, and
Judith Gelb. I note that both Saffern and Simanowitz
testified on behalf of Respondent, and furnished no testi-
mony concerning this alleged conversation.
While Judith Gelb did testify about such a conversa-
tion, her version of it differs substantially from that of
Bernard.
I do not credit either Gelb's testimony in this respect,
and fmd that at no time did Shaw ever tell anyone from
Respondent or anyone else for that matter, that she was
resigning or leaving Respondent on 1 March. I note ini-
tially my observation of Bernard Gelb's credibility, set
forth above, which I have of course considered in this
respect. However, even apart from that factor, a number
of other reasons point to a similar conclusion.
29 It is undisputed that Respondent's normal policy is to require resig-
nations to be put in writing In fact the only full-time programmer em-
plOyed by Respondent, Sima (last name unknown), had resigned on 8
February, and, submitted a written resignation to Respondent pursuant to
this policy.
First, the testimony of Respondent's own witness Saf-
fern, Shaw's immediate supervisor. He admitted that at
no time did Shaw tell him that she was leaving effective
1 March. While Saffern contends that Shaw informed
him of her job offer in early February, and told him that
she expected to be "leaving by the end of the month," he
further admitted that she told him that she was still wait-
ing for an assignment from the new employer. In fact,
Saffern admitted that during the month of February, he
personally heard Shaw on a number of occasions during
telephone conversations getting irate with the person
who was supposed to line up the job for her, and com-
plaining about the fact that she had not received her
starting date as promised." Moreover, Robert Roth, a
fellow employee and also a witness for Respondent in
this proceeding, also confirmed the fact that Shaw was
waiting for a phone call to tell her when she would be
starting her new job in Tennessee.
Finally, and perhaps most significantly, is the simple
fact that Shaw never obtained a job in Tennessee on 1
March or any time thereafter. The only job that she did
receive was for Informatics Corp., and that was starting
18 March and was in Colorado.
Accordingly, based on the above analysis, I conclude
that Shaw was terminated by Respondent on 1 March.31
E. The Union Files a Petition and Demands
Recognition
On 4 March, the Union filed a petition with the Board
in Case 29-RC-6353, seeking a unit of "regular full and
part time computer and data entry technical employees."
On the same day the Union sent a certified letter request-
ing recognition for the employees in such a unit. This
letter was returned from the post office, marked un-
claimed.
On 5 March, DePietro went to Respondent's premises
along with Union Business Agent Tom Langford. DePie-
tro told the receptionist that she was from Local 888 and
wished to see Bernard Gelb. The receptionist, after
speaking to someone on the phone, told DePietro that
"Bernard Gelb doesn't recognize you."
29 I have considered two letters introduced by Respondent and con-
clude that they do not require a different conclusion. The first, a letter
dated 22 February from Lee Ross, a representative of Bronx Lebanon
Hospital, refers to the fact that Shaw informed him that she will be leav-
mg "in March." This letter in fact corroborates Shaw's testimony, which
I have credited, that all she told Respondent was that she expected her
assignment to be made sometime in March.
The other letter, allegedly sent by Saffern dated 25 February to Ross
does specify that Shaw notified Respondent she will be leaving 1 March
1985. However, scant significance can be given to the letter, because Saf-
fern, the writer of the letter, admitted that Shaw had never told him that,
and was still complaining to her new employer about a lack of a starting
date.
21 I have considered the Unemployment Insurance decision introduced
by Respondent, which concluded that Shaw had resigned her position
and left the job without good cause. While such decisions are admissible
into evidence and have some probative value, they are not controlling in
unfair labor practice proceedings. In my judgment in the instant case, the
decision is insufficient to overcome the other factors cited above, in
reaching my conclusion that Shaw was discharged. Duquesne Electric
Mfg. Co., 212 NLRB 142 (1974); Armored Transport of Nevada, 265
NLRB 1648, 1652 (1982).
1244 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
DePietro tried to give the receptionist another copy of
the recognition letter, but she refused to accept it saying
she was not authorized to do so.
At that point Judith Gelb came over to the union rep-
resentatives and ordered them to leave the premises or
she would call the police. DePietro then told Gelb that
the Union represented the majority of the computer
technical employees and requested that Respondent rec-
ognize the Union. Gelb repeated that they should leave.
DePietro replied that her flagrant disregard for workers'
rights had to stop.
Gelb then called the police and told them that two
people had refused to leave. A few minutes later the
police came and DePietro and Langford left.
On 27 March, a representation hearing was held on
the Union's petition. At that time the Union amended its
petition and Respondent stipulated to an appropriate unit
including all data entry operators, computer operators,
computer programers, production and maintenance em-
ployees, drivers, collection employees, and office cleri-
cals employed by Respondent, excluding all other em-
ployees, guards and supervisors as defined in the Act.
The only issue litigated at the hearing 32 was the super-
visory status of Valentine and Beradino, with Respond-
ent asserting that both employees were supervisors.
During the course of the hearing it was stipulated that
Dan King is a statutory supervisor possessing the author-
ity to hire and fire, and that Silvagnoli was a managerial
employee under the Act.
On 6 May, the Regional Director for Region 29 issued
a Decision and Direction of Election, directing an elec-
tion in the stipulated unit, and finding that neither Bera-
dino nor Valentine were supervisors within the meaning
of the Act.33
Thereafter, Respondent filed a timely request for
review. The Board on 6 June denied the request for
review with respect to Beradino's status, but ruled that a
substantial issue was raised with respect to the status of
Valentine. Accordingly, it ordered that Valentine be per-
mitted to vote under challenge.
On 6 June, an election was held at Respondent's prem-
ises. The results were 4 votes yes, 13 votes no, and 4
challenged ballots.
On 12 June, the Union filed timely objections to the
election. On 12 August, the Regional Director issued a
supplemental decision, order consolidating cases, and
notice of hearing consolidating the objections with the
then outstanding complaints that had issued.
F. Respondent Postpetition Conduct
1. Alleged termination of Joy Scott
Joy Scott was hired on 19 March 1984 as a keypunch
operator. She attended a union meeting on 8 February
along with employees Shaw, Smith, Lopez, Sima (last
name unknown), and DePietro. She also attended the
32 The hearing lasted several days. Beradino, Valentine, Lopez, and
Arguelles testified as union witnesses Burgos and Smith also attended the
hearing as union supporters.
83 The decision also found pursuant to the stipulation of the parties
that King was a statutory supervisor with the authority to hire and fire.
meeting on 28 February and signed an authorization card
on that date.
On 4 February, Scott went to see Judith Gelb in her
office. Scott explained that she had just been informed
that her mother was terminally ill in England with
cancer, and she requested a leave of absence to visit.
Gelb was very sympathetic, stating that she was very
close to her own mother, and told Scott that she could
have the time when she is ready.
On 12 February Scott again spoke to Gelb, and said
that her husband was in Jamaica at the moment and
when he returns, Scott would be making a reservation
for England and would let Gelb know. Gelb said okay.
On 20 February Scott informed Gelb that she had
made reservations and would be leaving on 2 March and
expected to return to work on 1 April. Gelb replied that
it was okay, and wrote down on her calendar for 1 April
that Scott would be returning on that date.
A few days later, Saffern approached Scott while she
appeared to be crying. Saffem said that he heard about
Scott's mother and was very sorry to hear it. He added
that Scott should not worry because her job will be
there when she returns.
Scott also was approached by Silvagnoli in late Febru-
ary. Silvagnoli told Scott that he had heard about her
mother and was sorry to hear it. He suggested that when
she goes away, she would leave her car at the Respond-
ent's premises and no one will bother it. Scott replied no
thank you, as she had a garage.34
On 5 March, Respondent sent a letter to Scott signed
by Judith Gelb. The letter states that Scott is not entitled
to a 2-month leave of absence, and states that Respond-
ent had to replace Scott "because work must be done,"
The letter adds that if Scott wants to be rehired on her
return to call and see if there is an opening.
On 2 April Scott returned to Respondent with a letter
in her hand requesting her job back. She asked to see
Judith Gelb. Gelb's secretary, after speaking to Gelb,
told Scott that Gelb was too busy to see her that day,
Scott returned the next day. Gelb came out herself and
said that she was too busy to see Scott that day, and sug-
gested that she come back next week. Scott then asked
about her pay, claiming that her fmal check was not cor-
rect. Gelb then invited Scott into her office, and asserted
that she could not find Scott's timesheets, and would get
back to her on her pay. Scott handed Gelb a letter dated
2 April. The letter states that there had bee,en an agree-
ment prior to Scott's departure for her to return to work
on 1 April, and that she was willing and ready to return
to work effective immediately. Scott received no re-
sponse to this letter from Gelb or Respondent.
On 10 April, Scott spoke to Judith Gelb again on the
telephone, and asked about her job. Gelb replied that she
needed more time to think about it. Scott asked how
much time and Gelb giggling answered "indefinitely."
Gelb added, "You know Joy, I think you had better find
yourself another job because the policy of this Company
is you are here one year you get one week vacation or if
34 The above based on the corroborative, consistent, and credible testi-
mony of Scott, Valentme, and Lopez, corroborated m part by Scott's
plane ticket.
EDP MEDICAL COMPUTER SYSTEMS

1245
you are here two years, you get two weeks vacation."
Scott reminded Gelb that she did not ask for vacation,
but had spoken to Gelb and received permission for a
leave of absence and now she was ready to work as
agreed. Gelb responded that she had no more time to
talk and hung up.
Scott received no further communication from Re-
spondent until she received a mailgram on or about 13
August, stating that it had an opening for Scott, and
would keep the position opened for 3 days. Scott called
Judith Gelb and asked about her seniority, vacation, sick
days, and salary. Gelb replied that she would get back to
Scott.
On 14 August Gelb called Scott and informed her that
she was being offered a position as a new keypunch op-
erator, without any seniority. Scott complained about the
fact that she was not getting backpay and had lost se-
niority. Gelb responded that her attorney had instructed
her to make such an offer, and that she had no hard feel-
ings against Scott, but her hands were tied. Scott agreed
to and reported to work on 19 August, and was still em-
ployed by Respondent as of the time of the hearing.
Judith Gelb testified concerning Respondent's actions
with respect to Scott. According to Gelb, Respondent
could not hold Scott's position open for her, andsought a
replacement. She asserts that Respondent had offered a
job to an individual named Carol Roberts to be hired as
a replacement for Scott to start 11 March.
Gelb admits sending the letter of 5 March to Scott,
and claims that the purpose of the letter was merely to
confirm her alleged conversation with Scott."
Gelb admitted that although the letter indicated that
Scott had been replaced, in fact that was not so. She
claims that what she meant in the letter was that Re-
spondent intended to replace her, and hired Roberts for
this purpose but due to financial difficulties 36 at the time,
rescinded the hiring.
In April when Scott returned and requested her job
back, Gelb contends that Respondent was not hiring
anyone, and that it was satisfied with the number of
people that it had in the keypunch department. Gelb also
asserted that when Scott returned, she asked either Si-
manowitz or Saffern or both of them, whether they
needed anyone in keypunch, and that they told Gelb that
they were satisfied with the current staff and did not
need anyone. 3 7
In June or July, Judith Gelb admitted that Respondent
hired a couple of employees in the keypunch department.
When asked why she did not rehire Scott at that time
her response was that she "forgot" about Scott."
Se I note that I have credited Scott's version of her conversations with
Gelb, and do not credit Gelb that she specifically told Scott that her job
would not be held opened and she would be replaced. I also note the
undemed testimony of Beradino, that Bernard Gelb told her that Scott
had been "fired."
Se The nature of Respondent's "fmancial difficulties" will be discussed
more fully infra in connection with Respondent's reduction of hours of
employees on 12 March.
Saffern, the immediate supervisor of the department, testified that
he was not consulted by Gelb or anyone else whether Respondent
needed or should rehire Scott. Simanowitz, although testifying about
other matters, gave no testimony on this subject.
38 I note that a charge alleging Scott's discharge to be unlawful in
Case 29-CA-11799 was filed on 2 May. A complaint alleging that Re-
Gelb further testified that Respondent had unhappy
experiences with the keypunch employees whom it hired
in June or July. Gelb asserts that she was trying to think
about who can be hired without making the same mis-
take, and she suddenly remembered Scott. Therefore, she
offered her a position in August.
2. Reduction in hours
On 8 March in the morning as Respondent's employ-
ees were coming into work, union organizers handed out
leaflets to employees announcing a union meeting for
Tuesday, 12 March, at 5 p.m. The union representatives
arrived about 8:30 a.m. Union Organizer Eric Glather
was standing about 2 to 4 feet from an entrance to Re-
spondent's garage where some employees park their cars.
The normal procedure is for the employee to approach
the garage, honk their horn, the garage would open, and
they would drive in. The door would then close.
On 8 March, however, after the first car followed this
procedure, the garage door remained open.
Simanowitz stood at the garage door for about an
hour observing Glather attempting to distribute leaflets
to the employees. About 10 employees entered the
garage on that day. The employees stopped their cars
and looked at Glather and/or at Simanowitz. Some em-
ployees accepted the leaflet, and others did not. Si-
manowitz made no comment to any of the employees,
nor to Glather during this time.
As noted above, the union meeting was scheduled to
be held on 12 March. On 11 March most of Respond-
ent's employees were informed by various of Respond-
ent's officials that effective Tuesday, 12 March, their
hours would be reduced and cut in half. The employees
were told that the reduction was necessitated by finan-
cial or economic reasons, and would last for 2 vveelcs.39
Half of the employees whose hours were reduced
were placed on a morning shift of 4 hours, and half in
the afternoon for a similar 4-hour working day.
The entire data entry department was subject to the
reduction in hours. This included employees Smith, Val-
entine, Lopez, Lynda Jackson, Mercedes Harasme, and
Anna Gooda11.4°
Respondent employed two computer operators at the
time, Linda Beradino and David Arguelles. Beradino
was not subject to the reduction in hours on 12 March.4'
David Arguelles was subject to the reduction of his
hours at that time."
spondent discharged Scott on 5 March and refused to reinstate her on
various dates in April m violation of the Act was issued on 21 May.
As to Gelb's statement in the letter that she could not hold the job
open for 2 months, she asserts that Scott told her she did not know when
she would be back, and it could be for as much as 2 months. This testi-
mony of Gelb is contradicted by both Scott's plane ticket, which was a
round-trip ticket with a return in 1 month, and by Saffern's testimony
that Scott told him that she expected to return in 3 or 4 weeks.
39 David Arguelles, whose hours were also cut at this time, was not
told that his reduction would last for only 2 weeks. He was not told
when or if his hours would be restored.
40 Of this group, Smith, Valentine, and Lopez attended the 28 Febru-
ary union meeting, and signed authorization cards prior to 12 March.
ei However, as noted above, her overtime hours had been reduced as
of 4 March.
42 Both Beradino and Arguelles were in attendance at the 28 February
meeting and were card signers prior thereto.
1246 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The remaining employees of Respondent include em-
ployees who perform production, maintenance, collec-
tions, and office clerical functions. Of this group Richard
Wiemert, Earl Haynes, David Burgos, Lucy Maisonave,
Marilyn Nosel, Haresh Shah, and James DeStefano, all
had their hours reduced."
The remaining employees in these classifications,
Joseph Diggs, Jorge Lee, Terry Rhett, Daniel King, and
Joseph Silvagnoli did not have their hours reduced.44
The record also discloses an employee on the payroll
named Monroe Trimble, who appears to have been em-
ployed by Respondent as a driver. While no testimony
was offered whether Trimble's hours were reduced, the
payroll records introduced reveal that his hours were not
cut. Trimble did not attend any union meetings and did
not sign a card.
During the course of the reduction of hours, Jorge
Lee continued to work overtime for Respondent, averag-
ing about 10 hours per week of overtime during this
period.
During the second week of the reduction. Lee accom-
panied Bernard Gelb on the truck to the post office to
drop off the mail. While they were driving over, Lee
asked when the people would be put back to regular
hours. Gelb answered it should be one more week. Gelb
added, however, if the Union was ever elected he would
"cut everybody's hours and just hire other people for the
difference."4 5
Although the employees were told that the reduction
in hours would last for 2 weeks, most of the employees
were not returned to full-time status until 29 March.
Lynda Jackson, however, was restored her full-time
hours 1 week prior, on 22 March. 46 Arguelles as also
noted above, did not have his hours restored on 29
March, or at anytime thereafter.
According to Respondent's witnesses, the Gelbs, Si-
manowitz, and Saffern, it was experiencing severe finan-
cial cash flow problems in February and March. These
difficulties stemmed primarily from the failure of the
Emergency Control Board (EC) of New York City,
one of the Respondent's two main clients, to make timely
payments for services rendered by Respondent. This
cash flow shortage, according to Respondent's witnesses,
caused it to be in arrears on a loan payable to the Union
Chelsea Bank.
Simanowitz, Saffern, and the Gelbs all testified consist-
ently that in late February they met with representatives
of the Union Chelsea Bank. During this meeting, the rep-
resentatives expressed concern about Respondent's fail-
ure to make its loan payment on 1 February, 47 and the
43 Of this group, Haynes, Maisonave, Wilson, and Nosel attended the
28 February meeting. Haynes and Wilson signed authorization cards
prior to 11 March. Maisonave and Nosel signed cards later on in March.
44 Rhett and Diggs neither attended the union meeting nor signed
cards. Daniel King attended the meeting and signed a card. Silvagnoli
and Lee also attended the union meeting but, as noted above, at the in-
structions of Gelb.
45 Based on the undeined testimony of Lee.
46 Jackson, in addition to not signing a card or attending a union meet-
ing, was also a witness for Respondent at the R case hearing.
47 Respondent had two outstanding loans at the time to the bank,
$750,000 and $250,000, respectively. The approximate payments were
$15,000 per month. These loans were secured by a mortgage on property,
as well as personally guaranteed by Bernard Gelb.
fact that the loan would be declared delinquent, if not
paid by 28 February, which would in turn result in the
bank officials having to account to their superiors. Re-
spondent's representatives explained its cash flow prob-
lems, and the reasons therefor, and explained that it
would be receiving the money owed by ECB, probably
in a few weeks. This explanation did not satisfy the bank
representatives, who suggested that Respondent take
action to cut costs, including refusing to perform services
for ECB and, if necessary, the layoff of employees. Ber-
nard Gelb replied that, in his view, laying off employees
or refusing to perform services would be counterproduc-
tive and would inhibit future revenues.
At the close of the meeting the bank representatives
stated that it was going to deduct the amounts due from
Respondent's account, regardless of the amount in the
account.4 8
During this period of financial strain, Respondent was
having difficulty paying its bills. For instance, on 6 Feb-
ruary Con Edison sent Respondent a notice threatening
to turn off service unless a bill of $3577 was paid inune-
diately. On the same day that Respondent received the
notice, a Con Edison representative actually turned off
Respondent's electricity. Judith Gelb paid the bill per-
sonally on that day, and Respondent's electricity was
turned back on.49
Respondent's next Con Edison bill was for $2868.02,
received in early March, covering the February bill. This
bill also threatens shutting off electricity unless full pay-
ment is made by 6 March. This bill was paid by Re-
spondent by a check dated 6 March.
Additionally, the record reveals that Respondent's
credit cards were canceled around this time and various
suppliers including IBM and CAM Computer Services
terminated their services because of delinquent payments.
Finally a number of Respondent's payroll checks
bounced during this period of time, including the salary
check of Simanowitz.5°
Respondent's Union Chelsea statement also reveals
that its balance as of 31 January was $3641.16, which
statement included the $16,882.19 loan payment, which
was deducted on 14 January. For the month ending Feb-
ruary 1985, Respondent concluded with a balance of
$6721.24, which did not include a deduction for the loan
payment.
Although ordinarily as noted, loan payments are gen-
erally deducted automatically by the bank, frequently the
bank would defer deducting the amounts on request of
Respondent.
46 In fact the normal procedure with respect to the loan payment is for
the bank to automatically deduct payments from the account at the first
of each month.
46 According to Judith Gelb, Respondent did not even have enough
available funds in the bank at the time to cover the check, but she had to
pay the bill, otherwise the computers could not operate and Respondent
would be effectively shut down.
5° Simanowitz' check for $590.79 was returned by the bank on 7
March. Respondent's February statement from Union, Chelsea Bank, re-
veals one returned check, dated 1 February for $1921. The March state-
ment reveals, in addition to the Simanowitz check, a total of 22 returned
checks between 5 and 21 March, totaling nearly $10,000. Of these re-
turned checks four of them were dated 5 March and five on 7 March.
The remainder were dated subsequent to 11 March.
EDP MEDICAL COMPUTER SYSTEMS

1247
With respect to the moneys due to Respondent from
ECB, the testimony of Michael Moran, director of oper-
ations for ECB, established the following; Respondent
and ECB have been parties to a contract for a number of
years. Such contracts are renewed annually, but must be
approved by the Board of Estimate of New York City.
Due to various bureaucratic and procedural require-
ments, however, it is not unusual for the contracts ap-
proved by the Board of Estimate to be delayed. The
contract with Respondent runs from 1 October to 30
September. During the period of time while the contract
approval is being considered, the ECB provides for tem-
porary payments to vendors if money is available from
the years of the prior contract.
This procedure was utilized in Respondent's case, as
its contract expiring on 30 September 1984 was being re-
viewed by the Board of Estimate. Payments were made
to Respondent under this procedure, until 10 January
1985, when a payment of $35,128.48 was made to it from
ECB. At that point apparently no more funds were avail-
able to pay Respondent, until its new contract went
through all the steps necessary for final approval.
On 24 January 1985 the Board of Estimate approved
Respondent for an extension of the old contract. Moran
informed Simanowitz of the approval, and asked about
expediting payments since Respondent was experiencing
cash flow difficulties resulting from the failure of Re-
spondent to be paid for services rendered. Respondent
signed its copy of the renewal contract on 7 February.
At that point the contract was returned to ECB and
needed to be signed by the commissioner of the Depart-
ment of Environmental Protection. 51 Between 7 Febru-
ary and 7 or 8 March, Moran was in constant communi-
cation with officials of Respondent, wherein either Si-
manowitz or Bernard Gelb asked that approval be expe-
dited due to financial problems that it was experiencing
at the time, including payroll problems, bills to be met,
etc. Moran could not and did not give indications as to
when the contract would be signed by the commissioner.
He simply told Simanowitz, "I don't know."
On 7 March the commissioner signed Respondent's re-
newal contract. Moran informed Simanowitz of this fact.
Once again Simanowitz asked when Respondent could
expect payment. Moran replied that he expected pay-
ment to be forthcoming within 2 or 3 weeks.52
Moran explained to Simanowitz that although the
commissioner signed, the contract still must be registered
by the office of the controller before payment could be
made. Shortly thereafter, Moran ascertained that an on-
line request could be made of the controller's office,
which would expedite payment to Respondent. On 14
March, Moran made such a request, and informed Si-
manowitz of such action on 14 or 15 March. At that time
Moran informed Simanowitz that money would be forth-
coming within a week.
On 20 March, Moran arranged to further expedite pay-
ment by requesting a "walk through" of the checks, per-
mitting the checks to be pulled from the computer and
51 The Department of Environmental Protection controls the ECB.
52 Moran admitted that he could not and did not give assurances that
payment would be made within this period of time. However, he testified
that his estimates as to tune have usually been accurate in the past.
picked up by the vendor. On 21 March, the "walk
through" request was approved by Moran's superior. As
a result of this procedure, the checks were prepared, de-
livered by messenger to Moran on 22 March, and picked
up personally by Saffern from Moran on that same date.
Four checks were issued dated 21 March, totalling
$143,000.52
Moran testified further that he had used the "walk
through" procedure in March 1984 with Respondent. At
that time Respondent also complained to Moran about
not receiving payment, and mentioned that Respondent
was experiencing financial problems, and needed the
money for bills, payroll, postage, etc. However, the
amount late and paid to Respondent using the "walk
through" procedure was approximately $38,000 in 1984.
Evidence was submitted into the record of Respond-
ent's various bank statements at different periods of time,
with each side relying on different statements in support
of their respective positions. Thus, as noted above, Re-
spondent's Union Chelsea account for the period 28 Feb-
ruary to 29 March 1985, contained indications of 22 re-
turned checks on the account. The statement indicates 46
deductions of $8 each marked "overdraft service
charge." The statement does not reveal nor does the
record establish any explanation for the overdraft check-
ing charges and its relation if any to the 22 returned
checks. The statement for that month revealed a consist-
ent overdraft balance, ranging from $14,493 on 7 March
to $1109.62 on 12 March. However, on 8 March Re-
spondent had a plus balance of $1210.42 resulting from a
$16,575 deposit on 8 March. On 22 March a deposit of
$42,448 was made. 54 That statement also showed a bal-
ance of $6721.2455 at the start of the month and
$33,527.76 at the close.
The record also revealed that Respondent had several
other accounts at the time with varying amounts avail-
able. As of 11 March 1985, the date the reduction in
hours was announced, Respondent had $1407 in a Citi-
bank account, and $1233.84 and $3566 in two Marine
Midland accounts. On 8 March, the date the reduction
decision was allegedly made by Respondent, these three
accounts totaled $5989.74.56
During the prior month of February, as noted above,
no loan payments were deducted from Respondent's
Union Chelsea account. During that month Respondent's
balance fluctuated between $391 on 1 4 February to
$35,378 on 13 February. On 28 February the statement
concluded with a balance of $6721.24. During that
month the statement revealed one returned check for
$1921.24 On 1 February, no overdraft checking charges,
but several. unexplained "service charges" of $48 each.
53 The checks included checks for $36,784.90, $27,306.95, $39,020.17,
and $42,448.23, for the months November and December 1984 and Janu-
ary and February 1985, respectively. All but the latter check covering
the February services performed by Respondent were late at the time of
the reduction of hours.
54 Presumably part of the proceeds from the ECB payment.
55 This balance was immediately changed to an overdraft of $12,241
on 1 March by the banks deducting $16,511 for the loan payments de-
scribed infra.
56 The record also revealed that as of 15 March one of the Marine
Midland accounts amounted to $10,590.
1248 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The combined balances for Respondent's other ac-
counts as described above as of 28 February totaled
$20,785.
Respondent's January statement at Union Chelsea re-
vealed no returned checks or overdraft charges, but
again seven unexplained service charges ranging from
$32 to $48. The balance ranged from $431.03 on 10 Janu-
ary to $20,280.95. The closing balance on 31 January
was $2641.46.
On its other accounts as of 31 January, Respondent
had a combined balance of $22,350.
The record also contained Respondent's Union Chel-
sea statement ending December 1984. During this period
Respondent's balance fluctuated from a low of an over-
draft of $7251.27 57 to a high of $29,824.48 on 31 Decem-
ber. During that month it had an overdraft balance on
seven separate occasions, and a total of 22 overdraft
service charges of $8 each, 12 unexplained service
charges of from $24 to $48, and three returned checks
totaling nearly $7500.
Turning to the month ending 30 November, Respond-
ent's Union Chelsea account began with an overdraft of
$3390.04, and its balance reached as high as $43,448 on 5
November. The bank deducted its loan payments on 8
November of that month. On 1 November the bank im-
posed six overdraft service charges of $8 each. The clos-
ing balance was $9239.44.
As for the month ending 31 October 1984, its Union
Chelsea account contained 65 overdraft service charges
of $8 each, and 5 unexplained service charges from $16
to $48. During that month Respondent was in an over-
draft situation for most of the time, and on 18 occasions
reflected in the statement. The overdraft ranged from
$10,106 on 29 October to $23,546 on 12 October."
During the month of October 1984, Respondent's
other accounts had combined balances on 4 October
1984, of $21,203; on 15 October of $10,722, and as of the
end of October of $17,669.
On quite a few occasions during the month of October
1984, Respondent's total bank balances, combining the
Union Chelsea accounts with the others, was below
zero.59
Finally, a stipulation was agreed to with respect to the
total payroll for Respondent's workers for the weeks
ending 29 January through 30 April. For the 4 weeks
ending 29 January through the week ending 20 Febru-
ary, the weekly payroll was ranged between $5166.43 to
$5521.01. For the 2 weeks ending 25 February and 5
March, its payroll was $4880.03 and $4813.78, respective-
ly.
For the remaining weeks in the month of March, its
payroll for the weeks ending 12, 19, and 26 March was
$4026.73, $3573.34, and $3374.93, respectively. Its pay-
roll for April was $3492.21, $3492.21, $3819.48, $4144.81,
57 The overdraft was created as was the case in March 1985, by the
bank's deducting its loan payments on 3 December.
59 Once again the overdraft was created by the banks deducting its
loan payment, on this occasion, on 1 October.
59 Thus on 12 October Respondent's combined balances resulted in an
overdraft of over $14,000. On 26 October its combined balances were
$1678.
and $4168.70, for the weeks ending 3, 9, 16, 23, and 30
April, respectively."
According to Respondent's witnesses, subsequent to
the meeting with the bank officials on 28 February, Re-
spondent's officials met on several occasions among
themselves to decide what action if any to take. Bernard
Gelb, Saffem, and Simanowitz all concur that the deci-
sion was finally made either on 8 or 11 March to reduce
the hours of much of the staff. They all contend that the
conclusion of these meetings was that some step must be
taken to accommodate the bank's request that some per-
sonnel action be taken, and to alleviate Respondent's
then-current problem of cash flow shortages and
bounced checks.
Bernard Gelb in fact contended that he initially con-
curred in a recommendation made by Simanowitz and
Saffern to permanently lay off three employees.61
Gelb further testified that Judith Gelb, pursuant to his
instructions, actually typed up the three letters of layoff
for these employees. However, Gelb claims that Judith
Gelb convinced Bernard that it would be disloyal to
layoff anyone, and that everyone should at least be given
some hours.
While Judith Gelb essentially corroborated Bernard
Gelb's testimony in this respect, Simanowitz and Saffern
did not. Saffern and Simanowitz both contend that they
rejected the option of laying off any employees at all
times, and that the only decision made was to reduce the
hours of employees.
Bernard Gelb admitted that in making its decision to
reduce hours of employees, that no calculation was made
by Respondent concerning how much money it would
save by this action.
It was also decided, according to these witnesses, to
inform the employees that the reduction would last two
weeks, because Respondent expected, pursuant to
Moran's conversations with Simanowitz, to receive sub-
stantial amounts of money from 'ECB in approximately 2
weeks.
It was also agreed at that time that Jorge Lee, Linda
Beradino, Joseph Diggs, Daniel King, and Terry Rhett
would not have their hours reduced. Respondent ex-
plained that these employees did not suffer any reduc-
tions in their hours because they performed essential
functions to its operation that other employees could or
did not.
With respect to Lee, he was the employee who came
in early, opened up and closed the premises, and was in
possession of a set of keys. Additionally, according to
Bernard Gelb, Lee's hours were not reduced because he
also picked up the mail and processed bookkeeping for
the ECB.
Joseph Diggs was not reduced according to Gelb and
Simanowitz and Judith Gelb, because he was the only
6° This stipulation represents the actual days that Respondent's em-
ployees received their paychecks. The checks represent pay for the pre-
vious week. Thus for example the payroll listed above for 12 March,
which is a Tuesday, actually represents payment for the calendar week
ending on Friday, 8 March.
61 Gelb asserts that one employee to be laid off was Marilyn (last
name unknown), a secretary, another was David Burgos, a collection
clerk, and a third he could not recall.
EDP MEDICAL COMPUTER SYSTEMS

1249
employee working on the Department of Real Property
account for New York City, and Respondent was experi-
encing difficulty at the time with this account. Gelb
claims that the Department of Real Property had threat-
ened to cut Respondent off as a New York City vendor
because its level of collections were insufficient.62
As for Daniel King, he was the most experienced col-
lector, and was the only employee authorized to deal
with banks and attorneys. He was also familiar with the
New York City Real Property account, according to
Bernard Gelb. For these reasons the Gelbs testified that
it was decided not to reduce his hours.
Terry Rhett was not reduced in hours, according to
Judith Gelb, because she is an experienced typist who
takes dictation and is the only secretary in the office
who knows how to operate the program computer type-
writer. However, Marilyn Nosel, another secretary, em-
ployed by Respondent, testified that there was no differ-
ence between the work performed by herself and by
Rhett.
Linda Beradino was Respondent's sole experienced
computer operator at the time of the reduction of hours,
and her hours therefore were not subject to a reduction
on 12 March, according to Gelb."
As set forth above, Respondent received checks from
ECB on 22 March valued at approximately $143,000.
However, the reduction in hours continued for most of
the employees cut until a week later, 29 March, when
the data entry department had their hours restored. The
remaining employees' hours were restored the next
week.64
Lynda Jackson who as noted was a witness for Re-
spondent at the representation hearings, and a noncard
signer, had her hours restored on 22 March. Respond-
ent's explanation for waiting until 29 March to restore
the hours of the employees cut was set forth by Bernard
Gelb, and supported by Judith Gelb and Saffem. These
witnesses assert that Respondent offered all employees
the opportunity to work full time immediately on 22
March, but that most did not accept because the repre-
sentation hearing was being conducted during that time.
According to Bernard Gelb, "everyone who worked on
the morning shift that was opposed to the management's
position against the Union, refused to work." The record
reveals that the representation hearing was held on 22
March and then adjourned to Wednesday, 27 March.
Thus, on Monday and Tuesday, 25 and 26 March, there
were no representation hearings involving Respondent.
3. Respondent's subcontracting
For a number of years Respondent had subcontracted
certain data entry work to a company called Arma Data
Services Inc. More specifically this work was character-
ized as "lab slip" jobs, and was work that its employees
could not and did not wish to perform.
62 In a 6- to 9-month period ending February 1985, Respondent re-
ceived approximately $1000 from this account.
63 I note, as set forth above, that the elimination of overtime the week
before had in fact reduced Beradmo's hours.
64 The only exception was employee David Arguelles. His status will
be discussed infra.
During the course of the reduction of hours, as de-
scribed above, a significant backlog of work had piled
up, particularly in the data entry area, where all employ-
ees had suffered a reduction of hours,
Shortly after the employees returned to full-time
status, in late March or early April, Respondent, because
of this backlog, and due to the necessity of expediting
medical records, subcontracted medical records to Anna
Data. This was the first time that Respondent bad ever
subcontracted a medical records job, which had always
been performed by its own employees.
This job consisted of 5633 records, which according to
estimates of Simanowitz and Saffern would generally
take 2 to 3 weeks to be performed by one of Respond-
ent's employees.
When the job was returned from Anna Data to Re-
spondent, sometime in mid-April, Matt Saffern ran it on
the computer himself between 10:30 p.m. and 12:24 a.m.,
rather than have Beradino perform the computer work
the next day.
Saffern and Simanowitz made the decision to subcon-
tract, essentially as noted, because of the huge backlog,
and the fact that medical records work was even more
behind than other jobs. They decided that the employees
should concentrate on punching the priority jobs like
Medicaid and Medicare, and to subcontract out this one
medical records job. Moreover, as Simanowitz noted,
when work is subcontracted, payment is not generally
made until 60-90 days from invoice.
hi the instant situation, Respondent was billed for
$901.28 for this job by Arma Data on 16 April and paid
the bill on 12 July.
As for Saffem running the job himself on the comput-
er, he explained that he was so anxious to get the job out
to the customer that he decided to run it himself, rather
than wait for Beradino to do it the next day, when she
came in.
4. Alleged constructive discharge of and refusal to
allow Sarahnie Smith to rescind her resignation
Smith began her employment with Respondent in the
data entry department on 4 April 1984. As noted, she
was present at the initial union meeting on 1 February,"
as well as the 28 February and 12 March meetings. Ad-
ditionally, she attended the representation hearing as a
union supporter.
In November 1984, Smith applied for a job at Chemi-
cal Bank on being recommended by a friend of hers who
worked there at the time. She interviewed with a person-
nel official and was asked about her skills. There was no
discussion about whether or why she was interested in
leaving Respondent. In fact, Smith testified that she was
not unhappy working at Respondent in 1984, but that
was simply job hunting, which she likes to do.
The representative from Chemical Bank told her that
there was no opening at the time, but she would notify
Smith if a position became available.
During the second week of the reduction in hours, in
March 1985, Smith received a call from Chemical Bank
65 She also signed an authorization card on that date.
1250 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and was offered a job. The job was on the night shift,
from 5 p.m. to 3 a.m. The salary was $282.50 per week
and the Bank pays for 50 percent of her medical benefits.
Smith's salary at Respondent was $225 per week, 66 with
no medical benefits whatsoever. Her regular hours prior
to the reduction were 9:30 a.m. to 5 p.m.
Smith told the representative of Chemical Bank that
she would think about the job offer. During the next
week of the reduction, Smith again spoke to Chemical
Bank and was told that if she wished to accept the posi-
tion, she would have to start by 15 April. Smith accept-
ed the offer at that time. Smith testified that she would
not have accepted the job at Chemical Bank had she not
been on part-time status at the time. 67 Smith testified fur-
ther that she would not have accepted the Chemical
Bank job had she still been receiving overtime.
On 3 April, after Smith had been returned to full-time
status, she notified Judith Gelb of her decision to accept
a job at Chemical Bank. Smith informed Gelb that she
had a better job at the bank. Gelb responded that she
knew, as she had received a call from the bank, and had
given Smith a good recommendation.
Smith asked Gelb if she could continue working part
time for Respondent. Gelb replied that there was no one
working part time for Respondent, but she would think
about it. Gelb instructed Smith to go to the secretary,
ask her to type up a letter of resignation, and sign it.
Smith complied with Gelb's instructions and gave the
signed resignation letter to the secretary.68
On 11 April, while she was still working for Respond-
ent, Smith told Judith Gelb that she had changed her
mind about the Chemical Bank job because she felt it
was dangerous to travel in the subway at night. Smith
asked if she could continue working for Respondent.
Gelb responded that her name was already off the pay-
roll and Respondent had hired someone else to replace
her. Gelb added that she had already done enough
favors for Smith and was not going to do any more."
Smith was asked during the instant hearing why, since
she had been restored to her full-time hours prior to her
starting date at Chemical Bank, and prior to notifying
Respondent, she did not simply notify Chemical Bank
that she changed her mind and wanted to stay at Re-
spondent? Smith responded that she was "confused."
Judith Gelb admitted that Respondent refused to
permit Smith to retract her resignation in April." She
contends that Respondent was merely following its well-
established policy not to rehire employees who leave the
job to accept another position or because they are "un-
happy." She contends and is corroborated by Bernard
66 As also noted above, prior to the eliniinahon of overtime on 4
March, Smith averaged 10 hours per week of overtime.
67 I note that originally Smith was told that the reduction of hours
would last only 2 weeks, and that her acceptance of the job occurred
during the third week of the reduction.
68 The resignation letter dated 3 April 1985 reads as follows:
Please be advised that I Sarahnie Smith will be starting a new job
on April 15, 1985 with Chemical Bank.
My last working day will be April 12, 1985.
It is with great reluctance that I turn in this resignation.
69 Apparently referring to the fact that Gelb had already given her a
good recommendation. The above recitation of the various discussions
between Smith and Gelb is based on the credited testimony of Smith.
10 Respondent admitted that it had not replaced Smith at that time.
Gelb that Respondent has consistently enforced this
policy in the past. Over the past 2 years, Judith Gelb
could only recall three employees who resigned and
asked for their jobs back. They were Smith, Megaly
Lopez," and Lynda Jackson. As for Jackson, she left
Respondent for personal reasons to settle some divorce
problems. Some time later, in December 1984 or January
1985, Jackson requested her job back. Respondent asked
Valentine whether Jackson was a good worker and Val-
entine replied that she was. Accordingly, Respondent re-
hired her.
Judith Gelb could not recall how or when this "al-
leged" policy was effectuated, or who told her about it
She also could not recall any specific examples of any
employees who resigned and requested reinstatement,
and who Respondent refused based on this policy, except
for Smith and Lopez.
Bernard Gelb, however, did recall two specific indi-
viduals where Respondent allegedly enforced this policy.
He could not recall the specific dates, but identified em-
ployees Robert Quinif and Tony Corrado, both of whom
worked in production. Gelb recalled that these employ-
ees quit, asked for reinstatement, and were refused. Gelb
could not recall whether there were openings available
at the time that they reapplied. Gelb also admitted that
these employees requested their jobs back 6 months to a
year after they had resigned.
Judith Gelb admitted that she felt that Smith was "un-
happy" with the Company once she saw Smith at the
hearing with the union supporters.
The record also discloses that on two prior occasions,
Robert Roth, a programer, changed his full-time status
with Respondent, to a put-time position in order to
accept another job. On two separate occasions Roth re-
quested that Respondent reinstate him to his full-time
status and Respondent accommodated his requests both
times.
Roth switched from a full-time to a part-time position
at Respondent in January 1984, in order to accept an-
other position at another company.
After that other position did not work out, 4 months
later Roth asked Bernard Gelb to return to full time
status. Gelb agreed and Roth quit his other position.
In September, 1984, Roth accepted another job, and
once again was permitted by Respondent to be retained
as a part-time employee. In January 1985, Roth began
discussing with Gelb the possibility of returning to full-
time status. Shortly after Shaw was terminated on 28
February, Roth again became full time with Respondent.
Judith Gelb attempted to distinguish Roth's situation
from Smith's and Respondent's policy against permitting
"unhappy" employees from returning, by pointing out
that Roth had never actually left Respondent. Moreover,
Gelb asserts there was never any indication that Roth
was "unhappy" with Respondent, but that "maybe he
wanted more money."
77 Respondent's refusal to permit Lopez to withdraw her resignation is
also alleged to be unlawful and will be discussed below
EDP MEDICAL COMPUTER_ SYSTEMS

1251
5. Refusal to prepare tax return of and unapproved
deduction of loan payments from David Burgos
David Burgos was employed by Respondent in the
collection department. On 28 February he had a death in
his family. As a result thereof, he needed $200 to pay fu-
neral expenses. Accordingly, he called the office of Re-
spondent and asked Silvagnoli if he could borrow $200
from Respondent. Silvagnoli replied that he would check
with Bernard Gelb. A few minutes later Silvagnoli called
Burgos back and told him that the loan was approved
and he could come down to Respondent to pick up the
check. Burgos went to Respondent's facility, received
the check from Silvagnoli, and had no conversation
about when and how the loan was to be repaid.
On 4 March Burgos returned to work from his be-
reavement. Silvagnoli approached Burgos during the cof-
feebreak. Silvagnoli informed Burgos that some of the
employees were organizing a union. Burgos asked who.
Silvagnoli replied that he could not give out any names.
SiIvagnali added, however, that Burgos should not get
involved with the Union. Silvagnoli concluded the con-
versation by adding that the discussion that he just had
with Burgos "never happened," and it would be his
word against Burgos'.
On 11 March as noted, the Union leafletted announc-
ing a meeting for 12 March. Burgos signed an authoriza-
tion card on 11 March and attended the union meeting
on 12 March at the Gold Coast Restaurant. Present in
addition to Burgos and DePietro were employees Bera-
dino, Smith, Valentine, Lopez, Larry Wilson, Earl
Haynes, and Silvagnoli. During the course of this meet-
ing, DePietro asked Silvagnoli if he signed paychecks for
the Company. Silvagnoli admitted that he did. DePietro
then stated that he was part of management, and asked
Silvagnoli to leave. He left without any argument.
The next day when Burgos reported for work, Burgos
found his tax return on his desk, uncompleted.
Burgos approached Silvagnoli and asked why he had
not completed Burgos' tax return. Silvagnoli replied be-
cause Burgos had attended the union meeting.
Burgos had given the return to Silvagnoli to prepare a
few days before and Silvagnoli agreed to prepare it for
him. Moreover, on two prior occasions in past years, Sil-
vagnoli had prepared Burgos' return for him, without
charge. 7 2
Burgos also characterized Silvagnoli's preparing his
tax return as a "personal favor" to him, "not conneeted
with work at all."
On the same day, 4 March, that Burgos returned to
work, he gave $125 in cash to Judith Gelb towards the
balance of his $200 loan. He asked for and received from
Gelb a receipt describing the transaction, and indicating
a balance due of $75. There was no discussion at that
time between them about when and how the remaining
balance was to be paid.
72 Based on the credited testimony of Burgos, who impressed me as a
believable witness. Silvagnoli, although denying that his refusal to help
Burgos with his return had any relation to union activities, did admit that
he had initially agreed to do it. Silvagnoli claimed that he became too
busy with his own return, and did not have the time to assist Burgos, so
he returned Burgos' return to him. Silvagnoh also admitted that he had
helped other employees in the past with their tax returns.
The representation case hearings as noted were held at
the end of March. Burgos was present at the hearings
and sat with the union supporters.
When Burgos received his payroll slip for the week
ending 26 April, he noticed a $25 garnishment marked
"2nd personal loan." Burgos went to Judith Gelb and
told her that he did not understand this deduction from
his check.
Gelb replied that Burgos had taken out a loan from
Bernard Gelb, and that he should speak to Bernard about
it.
Burgos then spoke to Bernard Gelb, and complained
about taking the money out without telling him and
without discussing the terms with him. Burgos added
that he has always paid back when he had taken out
loans in the past. Gelb replied that he was "tired of wait-
ing for the money."
The record reveals that Burgos had in fact loaned
money from Respondent on two prior occasions. The
first loan occurred when Burgos was working in the pro-
duction department at some point prior to 1984. The
amount is not disclosed by the record, but at the time of
the loan Burgos agreed with Bernard Gelb to pay back
the loan over a number of months, and Burgos complied
with the agreement.
In July 1984 Burgos received a $100 loan from Gelb.
There was no specific timetable for the repayment, other
than it would be paid back by September. Between July
and September Burgos made no payments, but told Gelb
that he was in financial difficulties and would be giving
some money soon. Gelb said okay.
In September, Burgos went to Gelb and again pleaded
poverty and asked for more time. Gelb scratched out the
September date and told Burgos to pay back when he
can.
At some subsequent time, Burgos went to Judith Gelb
and authorized her to deduct $10 per week from his
check for the payment of the loan until it was paid off.
Respondent proceeded to do so. The final deduction of
that loan was taken out the week ending 19 April
The only testimony offered by any of Respondent's
witnesses concerning the subject of loans was given by
Judith Gelb. She asserted that because of the financial
difficulties that Respondent was experiencing in March,
Bernard Gelb suggested to her that Respondent should
force the employees who have loans to start paying back
the money that they owed. Gelb contends that at that
time she began to deduct from the salaries of Burgos,
Richie Wiemert, and Earl Haynes who all had outstand-
ing loans at the time.
Earl Haynes testified, however, that he asked Bernard
Gelb for a loan in early March 1985. Gelb initially told
Haynes that he could not give Haynes a loan because
there may be a union coming in, and "if so you have to
go to a shop steward."
After one of the union meetings, probably that on 12
March, Haynes again asked Bernard Gelb for a loan.
Gelb replied that because no union was "formed" at the
meeting, Haynes could have the loan. At that time
Haynes signed a piece of paper setting forth the terms of
the loan, and how it would be paid back. The record
1252 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
does not disclose when and how the money was repaid
by Haynes.
6. The alleged discrimination against Valentine:
demanding payment for jury duty and docking
Valentine for lateness
Valentine, as noted, was one of the original partici-
pants at the first union meeting on 1 February, signed a
card at that time, attended other union meetings, and ap-
peared as a union witness at the representation case hear-
ings.
In January 1984 Valentine was called for jury duty. At
that time Judith Gelb told Valentine that Respondent
would pay her full salary for the time on jury duty, but
that she must agree to reimburse Respondent when she
receives payment from the State, minus carfare. In fact
Valentine signed a piece of paper to this effect dated 16
January 1984.
Valentine was on jury duty for the first 2 weeks of
January 1984. 73 Valentine received her check from the
State for jury duty pay, but did not reimburse Respond-
ent as agreed on. Valentine explained that she needed the
money at the time and figured that she could pay it back
later.
In September or October 1984, Valentine went to
Judith Gelb and asked for a vacation day, which she felt
that she was entitled to. Gelb replied that she did not
have any more vacation days, and added that Valentine
was on jury duty and that Valentine should be glad that
Gelb let her have that week off. Valentine testified that,
based on that conversation, she felt Respondent had used
her vacation days to pay back her jury duty money, and
that therefore she no longer owed Respondent any
money.
On 4 March 1985 Judith Gelb came to Valentine's ma-
chine and asked to speakto her. Gelb reminded Valentine
that last year she had gone on jury duty and was sup-
posed to pay it back and had not done so. Therefore,
Gelb indicated that she intended to deduct the amounts
due from Valentine's checks. Gelb offered Valentine the
option of having the money deducted all at one time or
over a 3-week period. Valentine opted for a 3-week
period. There was an additional discussion about the
amounts due, and the fact that carfare must be deducted
from the amounts due. Gelb agreed to deduct $96 over a
3-month period.
Valentine said nothing during this conversation about
her alleged belief that she did not owe Respondent any
money because it had taken vacation days away from her
in the summer of 1984. Respondent accordingly deduct-
ed $32 per week from Valentine's pay for the weeks
ending 1, 8, and 15 March.
Valentine also testified that prior to 28 February, Re-
spondent would not dock an employee for up to 15 min-
utes of lateness. If an employee was late 15 minutes or
more, the employee would be docked unless the employ-
73 Valentine testified that she thought she was on jury duty for only
the first 8 working days of January 1984, and that she worked for Re-
spondent on the 9th and 10th day. However, Gelb's testimony that she
did not work the last 2 days of the second week is supported by Valen-
tine's timecards for those weeks.
ee chose to make up the time after his or her regular
working hours. 7 4
Valentine further testified that after 28 February, Re-
spondent began to dock her pay for any amounts of min-
utes late.
According to Judith Gelb, Respondent's policy has
always been the same with respect to lateness. Employ-
ees are automatically docked for all minutes late, unless
they choose to make up the time at the end of the day.
Gelb's testimony in this regard is supported by the testi-
mony of various employees, including Lopez and
Wilson, as well as timecards introduced into the record.
These timecards for Valentine, as well as other employ-
ees, for December 1984 demonstrate that Respondent
docked these employees for coming in late for as little as
4 minutes late on various days.
7. Alleged discriminatory work assignments and
verbal warnings to Beradino
Beradino as noted was one of the original supporters
and card signers of the Union, attended all the union
meetings, and was one of the main vocal supporters of
the Union at these meetings.
Beradino was hired by Respondent on 8 October 1983
as a computer operator. She processes the work that is
punched into the computer by the data entry operators,
as well as processing information that comes in directly
from the Bronx Lebanon Hospital, utilizing the on-line
system. Her salary is nearly double that of a keypunch
operator, and her job is si • nificantly more highly skilled.
When she was hired, nothing was said to Beradino
about performing keypunch work, and Simanowitz told
her that her job would be essentially running the com-
puter. In early 1984, Saffern informed Beradino that he
was bringing in some work from the Service Bureau, and
asked her if she would be willing to keypunch this work
on a computer in the computer room, while doing her
other work." She agreed to perform this work, but only
on a temporary basis. The amount of keypunch work as-
signed to Beradino began to increase in 1984, and she
started to complain to Saffem about the increase in these
assignments. She asserted that it was becoming too much
for her to perform both jobs because it required running
back and forth between the machines, plus the fact that
her eyes were hurting from the keypunch work resulting
in headaches. Saffem replied that he would try to find
another employee to perform the work.
Respondent hired an employee named Chu (last name
unknown) in the fall 1984, and she began to perform
some of this keypunch work. In November and Decem-
ber 1984, Beradino was out on disability. During this
time Chu and another employee, Lynda Jackson, per-
formed the work.
74 According to Valentine, no official of Respondent ever told her that
this was the policy. Her testimony in this regard is derived solely from
her own alleged observation of her own timecards.
75 It is possible for Beradino to do this because there are lull periods in
her computer operator work, when the machine is operating and she
doss not have to do any physical work on the computer while this is oc-
curring.
EDP MEDICAL COMPUTER SYSTEMS 1253
When Beradino returned to work in January 1985,
Chu was performing all this work, and Beradino was
not. However, in mid-January Chu quit. At that time
Saffern asked Beradino if she would be willing to help
out and perform this work once again. Beradino agreed
because Saffem promised it would be temporary until he
obtained a new employee. However, her assignments of
this work continued and increased, and no new employee
was hired. In March after Beradino's overtime was elimi-
nated, the situation became even worse, because the per-
centage of her time spent on keypunch work increased.
At one point, to decrease the backlog Saffern assigned
Beradino to keypunch all day long for 2 days, while
Roth performed computer work ordinarily done by Ber-
adino.
During this period of time, Beradino constantly com-
plained to Saffern about having to perform the keypunch
work, reminding him of his promise to her, and com-
plaining about headaches from doing the work. Saffern
kept promising to hire someone, and urging Beradino to
do her best to complete the assignments.
Sometime in mid-May, Beradino after her continued
complaints to Saffern went unheeded, said to Saffern that
she was tired, getting headaches, and was not going to
do any more keypunch work. However she continued to
perform these assignments. A day or two later, Beradino
was summoned to see Bernard Gelb. Gelb began by stat-
ing that he had heard that Beradino did not want to key-
punch any more. Beradino responded, "That's right,"
and pointed out to Gelb all the keypunch work piled up.
She added that she was tired, did not want to do this
work anymore, and requested again that someone be
hired as promised.
Gelb replied that "as long as the Union is here, you've
got to do exactly as you are doing, and continue to
punch." Beradino complained to Gelb about the head-
aches that she had been getting and the problems with
her glasses resulting from doing this work. She added
again that Saffern had promised new employees would
be hired.
Gelb offered to lend her $200 to buy new glasses. Ber-
adino replied that she did not want $200 for new glasses
because she would have to pay the money back to Gelb,
and besides keypunching is simply not her job.
Gelb responded "as long as the Union is here, you will
do it." Gelb continued that if she did not perform the
keypunching work, she would be fired, concluding his
remarks by stating, "this is a warning."
Thereafter Beradino continued to perform keypunch-
ing as assigned.
The election took place on 6 June, and as will be
noted infra, the employees voted against representation
from the Union. Shortly thereafter Saffern approached
Beradino while she was keypunching. He put his arms
and bands on Beradino's shoulders and said, "Let's
forget everything that happened and punching will be
taken away from you and let bygones be bygones." Bern-
dino replied, "Yeah, right."76
76 At the time Beradino was upset that Megaly Lopez had quit and not
been allowed to return. See discussion infra.
However, keypunching work was still assigned to Ber-
adino until mid-July, when an employee named Avon
was hired to perform this work.
8. Alleged discriminatory reduction in hours of and
extension of probation of David Arguelles
Arguelles was hired by Respondent as a computer op-
erator on 8 February 1985. He was hired with the ulti-
mate objective of assigning him to the midnight shift,
where he would be the only computer operator present
and where it would be necessary for him to independent-
ly run Respondent's various jobs."
Initially, Arguelles was placed on the day shift to
work with and be trained by Beradino on the operation
of the various jobs at Respondent.
Arguelles attended the 28 February and 12 March
union meetings, signed a card on 28 February, and testi-
fled at the representation hearing as a witness for the
Union.
On 12 March when the hours of most of Respondent's
employees were reduced, as detailed above, Arguelles'
hours were also cut in half. However, unlike the other
employees, Arguelles was not told at the time of the re-
duction that the reduction would last for only 2 weeks.
In fact, when the hours of other employees were re-
stored in late March and early April, Arguelles remained
working half time.
On 13 May, during a conversation between Beradino
and Bernard Gelb about the Union, Beradino mentioned
that she thought it was unfair to keep Arguelles on 4
hours, particularly as his wife was pregnant at the time.
Gelb answered, "Let's look at it this way, if you have
cancer, you would remove it before it spreads and that's
exactly what rin doing."
Arguelles claims that after he was cut in hours, his
training ended, and he was constantly asking Respond-
ent's officials for more training and to be put back on full
time. Bernard Gelb finally responded to his requests on
19 April by telling him that there was not enough work
that he was capable of performing to justify giving him
any additional hours.
On 2 May, Arguelles received a memo from Si-
manowitz and Saffem stating that Arguelles had com-
pleted his initial probationary period of 3 months, but be-
cause he was still unable to run all but a few production
jobs, on an independent basis,, his probation was being
extended for 2 weeks. On 17 May Arguelles received an-
other memo from Simanowitz indicating that his proba-
tion period was being extended for another 2 weeks until
31 May.
Respondent's position concerning Arguelles, as testi-
fied to by Simanowitz, Saffem, and Gelb, is that Ar-
guelles did not learn the jobs that Respondent performed
as Respondent had anticipated and expected in view of
his prior, experience. According to these witnesses, Ar-
guelles had sufficient training from Beradino and Saffern,
and was simply unable to grasp and perform a sufficient
number of jobs. For someone of his experience, Re-
' Arguelles previously had 5 years of esperience as a computer opera-
tor on similar equipment to that used by Respondent.
1254 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
spondent's witnesses contend that Arguelles should have
been able to learn alot more jobs, and been able to per-
form most jobs, by merely utilizing a flow chart, which
is available to assist Respondent's operators.78
Arguelles' deficiencies became apparent to Respondent
around the time that the reduction in hours for others
was effectuated. Simanowitz and Saffern discussed Ar-
guelles' status at around that time. Simanowitz recom-
mended that Arguelles be terminated but Saffern felt
that he could perform simple jobs, backup work, and
babysitting the computer, and recommended permanent
part-time status for him. This was the decision, and as
noted when Arguelles was notified of the reduction, he
was not told as were others that the reduction would be
temporary.
Arguelles' performance on part-time hours did not im-
prove, and he was still unable to learn Respondent's jobs
as he should have, according to Simanowitz and Saffem.
In early May, Beradino notified Respondent that she
intended to be out of work for some period of time for
an operation on her feet. Thus, Respondent by Saffern
told Arguelles to work full time for the week of 5 May,
so that he could try to learn to become familiar with her
jobs so he could fill in for her when she was out. At the
end of 1 week Simanowitz asked Arguelles if he was fa-
miliar enough with Beradino's work to be able to fill in
for her full time when she was out. Initially Arguelles
said yes. However, after checking with Beradino, Ar-
guelles came back to Simanowitz and said that he did
not know enough of the jobs, and still needed more
training. It turned out that Beradino did not have the op-
eration, and Arguelles returned to part time.
Simanowitz at that time asked Beradino to prepare a
list of all the jobs that Respondent runs. She did so, and
Simanowitz went to Arguelles and asked him to check
off those jobs that he could perform. Of a list of over 40
jobs, Arguelles checked off 5 to 6 jobs that he could run.
Around the same time Simanowitz testified to an inci-
dent, not denied by Arguelles, with respect to bringing
up the computer. The computer went down at a time
that Beradino was not at work. Simanowitz asked Ar-
guelles to bring the computer up. Arguelles replied that
he was not sure how to do it and suggested calling Bera-
dino.
Shnanowitz, recognizing that bringing up the comput-
er is a rather basic chore that Arguelles should know,
asked if there were any written instructions around. Si-
manowitz had recalled that he himself had on a prior oc-
casion brought up the computer using these instructions,
which were relatively simple to follow. Arguelles replied
that he did not know about any such instructions. Finally
Simanowitz searched the area and found the clearly
marked instructions on the desk that Arguelles utilized to
bring up the computer.
Additionally the record reveals that both Robert Roth
and Beradino herself complained to Simanowitz and Saf-
78 Even Linda Beradino, who testified as the General Counsel's wit-
ness, and who supported Arguelles that he needed more training, admit-
ted that a competent computer operator should be able to run any
project by following the flow chart.
fern that Arguelles was not progressing as he should,
was a slow learner, and made mistakes.79
Based on the above-described opinions of Arguelles'
work performance, Simanovvitz and Saffern contend that
they decided to extend his probationary period and to
refuse Arguelles' requests to be returned to full-time
status. They asserted that his limited abilities and capa-
bilities did not justify Respondent utilizing his services
for more than 4 hours a day.9°
9. Respondent's election campaign
On 6 May, the Regional Director issued a decision and
direction of election, fmding that neither Beradino nor
Valentine were supervisors within the meaning of Sec-
tion 2(11) of the Act, as alleged by Respondent. Thereaf-
ter and until the election scheduled for and held on 6
June, Respondent engaged in various campaign meetings
and discussions with employees, which the General
Counsel contends were violative ofthe Act,
Matt Saffem and Linda Beradino had a number of
conversations about the Union, from the time that the
Union first appeared until the election. Saffern initiated
these conversations, which generally began with his
questioning Beradino about why the employees wanted
or needed the Union, why and whether they still wanted
the Union, and what could Respondent do to alleviate
the concerns that employees may have.
Beradino's responses generally dealt with the subject
of medical and/or dental benefits, and they would dis-
cuss how expensive such benefits might be for Respond-
ent. Beradino felt that it would not cost that much
money, and Saffern disagreed. At one point Saffern went
to Simanowitz and discussed the costs with him, and re-
ported back to Beradino that, as Saffem had anticipated,
the costs of such benefits were prohibitively expensive.
During a later discussion between Saffem, Si-
manowitz, and Bernard Gelb about the subject, Saffern
suggested that maybe there is a way to compromise, by
instituting a medical plan partially contributed to by em-
ployees and part by Respondent. Gelb replied that he
would think about it.
Saffem then reported back to Beradino that he had a
discussion with Gelb about her request for medical bene-
fits, and that Respondent would see "if' there is anything
that we can do."
Gelb never got back to Saffem with this matter, and
Saffem had no further discussions with Beradino about
the subject.
79 Based on the undenied testimony of Simanowitz and Saffem, cor-
roborated by Robert Roth. In fact Roth testified that he told Bernard
Gelb and Saffern at various times that, in his opinion, Arguelles was in-
competent, that he was slow to pick up, did not have any incentive, and
that Roth did not think that Arguelles was going to work out.
89 The decision was also discussed with Bernard Gelb who concurred
in the assessment of Simanowitz and Saffem. Gelb himself recalled an in-
cident where he had asked Arguelles if he could perform two or three
jobs on a particular day. Arguelles did not know what Gelb was talking
about, and again said that he needed additional training. Gelb replied that
Arguelles was present for 3 weeks when Beradino was performing these
functions. Arguelles responded either that he was doing something else,
or in the bathroom when Beradino did these jobs.
EDP MEDICAL COMPUTER SYSTEMS 1255
Approximately a week after the Regional Director's
decision was issued, finding Valentine and Beradino to
be employees, Gelb called each of them separately into
the conference room. Joe Silvagnoli was present during
both conversations, but said nothing.
Gelb began the conversation with Valentine by com-
menting that he noticed that Valentine had been coming
in late the last three Mondays, and he assumed that she
was looking for another job. Gelb continued, "If I were
you I would look for another job because I don't want
you working here."
Valentine replied that she was not looking for another
job.
Gelb responded that Valentine should leave now while
they are on good terms. He added that if she leaves he
would give her a good recommendation like with Sarah-
use Smith, but if Valentine stays and tries to leave later,
he would tell anyone who calls for a reference that Val-
entine was a union organizer. Gelb concluded by raising
his voice and stating, "and I will see to it that you never
work again for the rest of your life." Valentine said okay
and left.
Gelb began the conversation with Beradino by stating
that he and Silvagnoli had been trying to come up with a
reason why Beradino was so strongly for the Union.
They had concluded that either she was naive and gulli-
ble or that she had a lesbian relationship with the union
organizer. Beradino got upset at this remark and said
that she could get Gelb in trouble for saying that. Gelb
replied that he would tell people that Beradino had ad-
mitted it to her.
Gelb then started talking about Esther Shaw, and said
that he had gotten rid of Esther because she was a trou-
blemaker, and he thought that everything would quiet
down after that. Gelb added that he thought that Esther
was the one who brought in the Union because she was
the "only one who had the guts to stay in the Union."
Beradino told Gelb that she could not tell him one way
or the other who brought in the Union.
Gelb at that point told Beradino that if she resigned
immediately he would give her a good reference like he
did for Sarahnie, but if not he would let employers know
that she was a union organizer.
I3eradino responded that if Gelb did that she would
sue him, and Gelb then told her to "stand in line."
Gelb then added that he knew that he was not going
to win with her and Ivy being supervisors. 81 Beradino
replied that all the employees wanted Gelb to do was to
sit down with the Union and listen to their gripes. Gelb
responded that he would never recognize the Union.
Beradino then mentioned that he would not forget be-
cause of all the money he was spending on the lawyer.
Gelb responded that Beradino's overtime was paying for
the lawyer.
At that point Beradino brought up David Arguelles,
and stated that it was not fair that Arguelles, with a
pregnant wife, was not restored to the full 8 hours like
the other workers.
81 As noted the Regional Director had found Valentine and Beradino
not to be supervisors contrary to Respondent's position. At this time,
however, Respondent's request for review was either pending or about to
be filed.
Gelb's response was, "Let's look at it this way, if you
have a cancer, you would remove it before it spreads
and that's exactly what I'm doing." Gelb then continued
that Beradino would hate him before this was over. He
added that he had 2 years to appeal and, by then, he
could close the Company and move someplace else. Ber-
adino stated that she thought that was illegal. Gelb re-
plied, "I can do anything I want to."82
In late May, Larry Wilson asked Bernard for a $20
loan. Gelb replied that he would get back to Wilson.
Shortly thereafter, Gelb called Wilson into the office.
Gelb told Wilson that he would lend him the $20 if he
supported the Company. Gelb added that if the Union
were to get in, there would be no more loans, and Gelb
would be strict as far as lateness and absenteeism is con-
cerned. It would not be tolerated.
Wilson agreed, Gelb gave him the $20, and Wilson
repaid the loan in the following pay week."
During the period shortly before the election, Re-
spondent posted on its bulletin board near the timeclock,
a poster about 3 feet by 3 feet square. The poster had
written at the top the words, "Is this Job Security?" Un-
derneath these words were pictures of three companies,
Korvettes Department Stores, Gertz Department Stores,
and a hospital. In all of these pictures there was a sign
stating closed or for sale.
During the course of the campaign, Gelb conducted
two Meetings of various of its employees to discuss the
pending election. Gelb made reference to this poster at
these meetings, and informed the employees that Local
888 had represented the workers at Korvettes, and that
resulted in Korvettes closing down. He also referred to
the other companies having had to close down because
of the Union coming in. He also added that a hospital
had just endured a long strike and that had resulted in
the hospital closing.
Gelb also talked about the possibility of a strike at Re-
spondent. He told the employees that if they selected the
Union that they would be forced to strike, because he
would not negotiate with the Union, would not take the
Union getting in "lying down," and would fight the
Union "tooth and nail." He added that if there was a
strike, Respondent would continue to operate, and would
hire permanent replacements for the employees.
Gelb also stated that he felt that employees could
always talk to him individually and they did not need a
union to negotiate for them. He asked people what the
82 The above description of the two conversations between Gelb and
Beradino and Valentine are based on the credited testimony of the em-
ployees. Gelb did not deny making any of the above remarks, nor did
Silvagnoh, who also testified, deny that Gelb made these comments.
Gelb's and Silvagnoli's version of these conversations was that Gelb
merely told the employees that he was surprised since they were supervi-
sors that they were not supporting management in their position of re-
maining without a union. Insofar as this testimony could be construed as
a denial that Gelb made the above-clescnbed statements to Valentine and
Beradino, I do not credit same. My assessment of Gelb's credibility vis-a-
vis other conflicting testimony is set forth supra. Additionally, I note the
corroborative nature of Valentine's and Beradino's testimony with re-
spect to Gelb's attempts to pressure them to resign, to give them a good
recommendation if they quit, or to inform prospective employers that
they were union organizers if they remained.
83 Based on undenied testimony of Wilson.
1256 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
gripes were? The employees talked about wage increases,
hospitalization, dental, and optical benefits. As to the
benefits, Gelb replied that he could not afford them. As
to wage increases, Gelb stated that when Respondent
was in a better financial situation he would agree to it.84
On 4 June, the Union distributed a leaflet that quoted
statements from Lopez, Wilson, Scott, Beradino, Valen-
tine, and Burgos, as to why each of them supported the
Union and why employees should vote yes on the elec-
tion scheduled for 6 June. On the day that the leaflets
were distributed, Judith Gelb called Lopez into her
office. Gelb had the leaflet in her hand and asked Lopez
if she had seen it. Lopez responded that she had just re-
ceived it and had not read it as yet. Gelb replied that the
leaflet contains a "beautiful letter that you wrote, but
don't worry, forever and ever I'm going to fire you from
this place for the rest of your life," and kept repeating
"forever and ever."
Lopez responded to Gelb that she did not worry be-
cause if the Union loses the election she did not want to
work for Respondent anymore."
On 5 June Silvagnoli approached Wilson and said that
Wilson must have been crazy to write what he did in the
pamphlet. Silvagnoli added that this could follow Wilson
for life and prevent him from ever getting a job. Wilson
replied that that was a chance he would have to take.
Later on the same day, Silvagnoli instructed Wilson he
had an extra sick day for tomorrow, and if Wilson wants
to show his support for the Company, he should use it
and not come in on the day of the election. He told
Wilson that if he complied with Silvagnoli's request, "ev-
erything else would be forgotten.
Later on the same day, Earl Haynes told Wilson that
Bernard Gelb had instructed him to tell Wilson that he
had gone too far by writing what he had in the leaflet,
and the only way that Wilson would be able to save his
hide was to not show up for the election.
As Bernard Gelb was leaving the premises on that
day, Wilson approached him and asked if , it was true that
he had an extra sick day for tomorrow. Gelb replied yes.
The next day, 6 June, Wilson decided to come in and
vote. When Wilson came in, Haynes asked Wilson why
he did not do as he promised. Wilson replied that he had
to go with his gut feeling. Haynes also told Wilson that
Bernard Gelb went into a rampage when Wilson came in
because Gelb felt Wilson had stabbed him in the back.
Gelb became so enraged that he punched a hole in the
wall. 8 6
At approximately 9:30 a.m. on 6 June, Silvagnoli ap-
proached Burgos at the water cooler. Silvagnoli told
Burgos to leave, not to vote, and everything will be for-
" The above description of Gelb's remarks at these meetings is de-
rived from a compilation of the testimony of various witnesses who testi-
fied about these meetings, includmg Gelb, Wilson, Maisonave, Lee, and
Roth. I do not credit Lee's testimony that Gelb made a specific threat
that Respondent would close up its business if the Union came in, or that
he asked employees how they were going to vote at these sessions. He
was the only employee to so testify, and other employees present specifi-
cally denied that Gelb made such remarks at these meetings.
" The above based on Lopez' credited testimony.
86 Lee confirmed that Gelb punched a hole in the wall on the day of
the election because Wilson came in to vote.
gotten. Burgos responded that he was going to stay and
vote.
A few minutes later Haynes spoke to Burgos in the
bathroom. Haynes said to Burgos, "David, this is straight
from Bernie. He told you to leave. Everything will be
forgotten. You're guaranteed a raise." Burgos replied
that he wanted the guarantee in writing. Burgos re-
mained in the restroom and Haynes went to see Gelb.
Five minutes later, Haynes returned and told Burgos that
there would be no letter.87
Both Burgos and Wilson remained at work on 6 June
and voted in the election. Burgos, in fact, acted as the
observer for the Union.
10. Alleged surveillance by Judith Gelb
On 5 June, the day before the election, employees
Marilyn Nosel and Lucy Maisonave approached Judith
Gelb separately. They both told Gelb that they were
afraid that something might happen on the day of the
election, and asked Gelb if she could watch for them
when they come in to work on that day. Gelb replied
that she did not think the employees had anything to
worry about, but that she would be outside waiting for
them when they arrived for work the next day.
Maisonave testified that although there had been no
violence at Respondent's premises, nor any incidents in-
volving Local 888, that she was afraid because of news-
paper reports at the time of violence on the picket line
involving a hotel strike. She was worried that something
might occur because the election was scheduled on that
day.
Accordingly, as a result of the requests of Maisonave
and Nosel, Judith Gelb, a few minutes before 9 a.m. on 6
June, took a chair outside the front entrance to Respond-
ent's premises and sat down with some papers in her
hand. According to Gelb she was doing some work.
At the time, Union Officials DePietro and Glather
were distributing leaflets to employees as they arrived
for work. DePietro and Glather went over to Gelb. De-
Pietro informed Gelb that she was committing unfair
labor practices by her actions and that she should know
the meaning of surveillance by now. Gelb replied that
she was just there to see that her girls get into work
safely.
A few minutes later Nosel and Maisonave came in to
work together and walked past Gelb and into the prem-
ises. Gelb then went beck inside.
87 The above recitation concerning the events of 5 and 6 June is based
on the credited testimony of Burgos and Wilson. I note initially the Con-
sistency and corroborative nature of their testimony concerning com-
ments made to them by Silvagnoli, Haynes, and/or Bernard Gelb. Addi-
tionally, Bernard Gelb did not deny confirming personally to Wilson,
Haynes' relaying of Gelb's message that he was promised a sick day for
the day of the election. Haynes denied that Gelb had given him any such
instructions to relay, but asserted that it was his own idea to suggest that
Wilson take a sick day. I do not credit Haynes in this respect. I note that
he received a loan from Respondent during the time of its alleged finan-
cial crisis, in the context of discussions about the Union. I found Haynes
to be quite nervous while testifying, and appeared to be trying to tailor
his testimony in favor of Respondent, in all of his responses. Finally, both
Gelb and Haynes admitted however that Haynes did speak to Gelb about
Burgos, and that Haynes relayed Gel's responses that nothing could be
put in writing.
EDP MEDICAL COMPUTER SYSTEMS 1257
G. Postelection Events
1. Refusal to rehire Lopez
As noted above, Lopez was an original card signer, at-
tended all the union meetings, and attended the represen-
tation hearings as a union supporter. As also set forth
above, on 4 June she was spoken to by Judith Gelb
about Lopez' statement in the union leaflet supporting
the Union in the election. During the conversation, Gelb
threatened to fire Lopez from Respondent "for the rest
of your life." 8 8
Lopez then responded that if the Union loses the elec-
tion she did not want to work for Respondent anymore.
On 7 June, the day after the election, Lopez called
Judith Gelb on the,, phone at 9:30 a.m. Lopez informed
Gelb that she was quitting. Gelb replied that Lopez
should send in a written letter of resignation and she
would mail Lopez her check.
On the next working day, Monday, 10 June, Lopez
came to Respondent's premises and spoke to Judith
Gelb. Gelb asked Lopez for her resignation letter. Lopez
replied that she did not come for that, that she changed
her mind and wanted her job back. Gelb responded that
her resignation was approved already. Lopez answered
that she was upset at that time but did not really mean it
and wanted her job back. Gelb told Lopez to sit down
and wait.
Twenty minutes later Judith Gelb returned to Lopez
and advised her that Respondent still had not decided
what to do with her, and suggested that Lopez call in 2
or 3 days. On Thursday, 13 June, Lopez called and
Judith Gelb again informed her that Respondent had not
decided about her and instructed her to call the next
week.
On Tuesday, 18 June, Lopez called and again spoke to
Judith Gelb. Gelb informed Lopez that her resignation
was effective, and that Respondent did not want anyone
who is unhappy working with them. Lopez repeated that
she had changed her mind about what she had said
before, that she was upset at that moment, and was will-
ing to come back to work. Gelb repeated that she did
not want unhappy people in the Company. Lopez re-
sponded that Gelb had never cared whether the workers
are happy. Lopez then asked if it had something to do
with the Union. Gelb replied no, it had nothing to do
with the Union and slammed the phone down.
Judith Gelb gave Respondent's position on Lopez' re-
quest, and testified that as was the case with Sarahnie
Smith, Respondent was merely following its alleged
policy of not permitting "unhappy" employees to return
to work for Respondent.
Gelb testified that she had informed Bernard Gelb and
Simanowitz on 7 June when Lopez quit, that she had
done so because the Union lost the election. Gelb con-
tends that she did discuss Lopez' request to return with
Simanowitz and Gelb, and that they had told her that
Lopez did not like it working for Respondent, and that
88 Lopez testified that at the time Gelb made these comments to her,
she had been Informed by Beradino that Gelb had told her that if she
kept supporting the Union he would give her a bad reference so she
could not get a job anywhere else.
she should not be taken back. Gelb did not explain why
it took Respondent 8 days to make this decision with re-
spect to Lopez' request.99
2. Alleged imposition of more onerous working
conditions upon and discharge of Larry Wilson
As noted above, Wilson, an early card signer for the
Union, attended various union meetings, and was one of
the employees whose name appeared in the Union's pree-
lection leaflet. Moreover, as also detailed above, Re-
spondent's officials promised him an extra sick day if he
stayed home on 6 June and did not vote. Wilson did
vote, however, and Bernard Gelb became so upset when
he found out that Wilson had come to work that he
punched a hole in the wall.
Wilson originally was hired a few years ago by Re-
spondent. He left the job to go back to school, and re-
turned and was reemployed by Respondent in mid-1984.
He was employed in the production department, per-
forming messenger work, as well as general maintenance
services, including working on the compactor. In fact
Wilson was given a $15 raise in mid-1984 to compensate
him for working on the compactor and performing main-
tenance work.
After the election, however, Wilson was no longer as-
signed to perform any messenger work. 9 ° His entire day
was thereafter spent on maintenance work: sweeping,
cleaning, taking out trash, and working the compactor.
Moreover, according to Wilson's =contradicted testi-
mony, prior to the election, in most cases when he was
assigned to do work on the compactor, Respondent
would assign another employee to assist him. According
to Wilson, this is essentially a two-person job and in fact
prior to the election when either Simanowitz, Gelb, or
Silvagnoli would see Wilson working the compactor by
himself, they would assign another employee to help
After the election, however, Wilson contends that he
was not given any assistance on the compactor on most
of the occasions that he was performing this work. He
estimated that 60 to 65 percent of his time was spent on
the compactor without any assistance. Moreover, Wilson
asserts that on times that he was assisted on the compac-
tor after the election, Wiemert or Haynes would volun-
teer and give him a hand on their own.",
On 3 July Wilson was discharged by Respondent.
Wilson Was handed a letter signed by Bernard Gelb. The
letter reads as follows:
Dear Mr. Wilson:
You are aware that your starting time is 9:00 a.m.
After repeated warnings, written and verbal, you
have ignored company policies and have arrived
89 Neither Simanowitz nor Bernard Gelb furnished any testimony with
respect to the decision not to rehire Lopez.
9° After the election Earl Haynes, who previously had acted as a mes-
senger only when Wilson was unavailable, took over the bulk of the mes-
senger work. Richie Wiemert became the backup messenger.
91 Earl Haynes confirms that the compactor is generally a two-man
job, but asserts that on occasion he would also work the compactor by
himself.
1258 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
late each and every day for the entire month of June,
which consists of approximately 20 working days.
The month of May found you only on time one day
out of 24 working days.
As previously explained to you, we can not prop-
erly schedule work in the production department
when you arrive at a different time each day.
Your "I don't care attitude" can no longer be tol-
erated.
The fact that you were arrested and detained on
June 3, 1985 for turnstile jumping and possession of
marijuana while on company business only supports
your total disregard for company policy.
Therefore, effective immediately, you are being
terminated from the company for misconduct.
A check for one week's salary is attached.
Sincerely yours,
Bernard Gelb
Director of Operations
The record reveals the following with respect to the
matters set forth in the discharge letter. As for the arrest
on 3 June, it is undisputed that on that date, while
Wilson was acting as a messenger and delivering a tape
to a customer of Respondent, he was arrested for fare
evasion and possession of marijuana.
The next day, 4 June, Wilson was called into Bernard
Gelb's office in the presence of Silvagnoli. Gelb at first
offered to help Wilson with respect to the charges, but
Wilson replied that it would not be necessary. Gelb then
castigated Wilson for being arrested on company time in
the possession of important documents that had to be de-
livered. Gelb added that he could not afford to take a
chance with Wilson, and if this kind of thing happened
again Wilson would be let go. Gelb also asked what hap-
pened to the tapes, and Wilson replied that he had
dropped them off the day before with Saffern.
The record also reveals that in January 1985, Wilson
was also given a summons for fare evasion while acting
as a messenger for Respondent. Judith Gelb and Silvag-
noli spoke to him about the incident at that time. Wilson
was told that he should not do that on company time
and, if Respondent wanted to, it could let Wilson go.
On 5 June Wilson was given another messenger assign-
ment by Saffern to pick up some tapes. This was the last
messenger assignment that he ever received from Re-
spondent.
With respect to lateness, Wilson has had a chronic
problem in this regard. In November 1983, Wilson was
present at a meeting of employees where he and others
were criticized for constant lateness. He as well as five
other employees signed a memorandum dealing with
lateness problems, including a rule that an employee who
has more than three latenesses will be suspended, and
eventually terminated if they do not perform properly in
regard to lateness.92
92 There is no record evidence that this system of suspension for three
latenesses was ever applied by Respondent.
Wilson admitted to having a lateness problem for ap-
proximately the last year that he worked at Respondent.
In fact Wilson also admitted to having the worst lateness
record in the production department.
During the months of April and May, Wilson had four
conversations with various supervisory officials of Re-
spondent about his lateness problem, and was told on
each occasion that if he did not improve Respondent
would take disciplinary action against him, including dis-
charge. According to Wilson, his lateness record im-
proved somewhat in mid-April, but he continued to be
constantly late. Wilson also asserts that he would at
times give reasons for his lateness, such as construction
in his area that forced the bus that he took to work to
detour.
In late May Wilson received a written warning signed
by Bernard Gelb with respect to his lateness.
On 12 June, Wilson was handed another warning letter
by Silvagnoli signed by Gelb. This letter refers to the
fact that Wilson's workday starts at 9 a.m., that he ar-
rived on 11 June at 9:50 a.m., and that this was the sev-
enth workday that he has arrived late. The letter con-
cluded with the comment, "consider this a reminder of
your starting time and company policy."
When Silvagnoli handed the letter t,o Wilson, Wilson
read it and commented, "my mother fucking pig pen."
On 20 June, Wilson received another letter again from
Silvagnoli, again signed by Gelb. This letter refers to
previous warnings given to Wilson, and recites that he
reported to work on 19 June at 11:38 a.m., the 13th day
in a row that he has reported late. The letter continues
that Respondent is unable to properly plan its production
schedule when Wilson continues to arrive at a different
time each day. The letter concludes by stating, "If this
misconduct continues I will have no choice but to sepa-
rate you from this company."
Wilson's response to the receipt of this letter was to
tell Silvagnoli, "You know I'm getting tired of you get-
ting in my face." Silvagnoli responded that if Wilson had
a problem with the document, to take it up with the
sender (Gelb). Wilson made no further comment and
walked away. 9 3
An examination of Wilson's timecards reveals that for
the months of April through the end of June, he was on
time 1 day. His lateness ranged from 4 minutes late on 23
May to 2 hours and 38 minutes late on 19 June. The fol-
lowing chart demonstrates his average, lateness for each
week:
93 Based on the credited testimony of Silvagnofi, over Wilson's denials
that he ever received these last two warning letters. I doubt that Re-
spondent would go so far as to fabricate warning letters as suggested by
the General Counsel. I have considered the General Counsel's argument
that these letters did not contain any initials of the secretary who typed
them, which is generally done at Respondent when typed by such secre-
tary. I consider this fact to be relatively insignificant, particularly since a
similar warning letter admittedly received by Burgos, and in fact alleged
by the General Counsel as an unlawful warning, also did not contain any
initials of the secretary who may have typed same. The answer is of
course that there is no record evidence about who typed any of these
warning letters, and the failure to contain initials cif a secretary, I consid-
er to be unimportant.
EDP MEDICAL COMPUTER SYSTEMS 1259
Week ending Minutes late
4/05 38
4/12 33
4/19 42.6
4/26 19.6
5/03 25.4
5/10 39.2
5/17 23.4
5/24 32.4
5/31 30
6/07 59.8
6/14 41.2
6/21 71.7
6/28 55.2
In further averaging the amounts, for the month of
April, Wilson averaged 33.3 minutes late, for May 30.1,
and for June 74.5 minutes late.
However, on Monday and Tuesday, 1 and 2 July,
WilsOn was on time both days, punching in before 9 a.m.
On Wednesday, 3 July, the day of his discharge, he
punched in at 9:37 a.m.
The record revealed that employee Earl Haynes also
consistently arrived late at Respondent. During the
months of May and June, Haynes did not punch in
before or at 9 a.m. at all. His average minutes late for the
5 payroll weeks in May were 23.7, 10.7, 8.2, 10.1, and
10.6, respectively, with an average of 12.8 minutes late
for this period. For the 4 weeks in June, his average late-
ness was 17.5, 13, 13, 14.5, and 12.5 minutes for an aver-
age of 14 minutes for this period. Additionally, the
record reveals that for the week ending 5 July (the week
of Wilson's termination) Haynes was again late every
day, averaging 26 minutes a day for this week.
According to Haynes' uncontradicted testimony, he
never received any written warnings concerning his late-
ness, nor was he disciplined in any way because of such
lateness. Haynes testified further that he did receive two
verbal warnings from Bernard Gelb, one before the
Union began organizing, and the other before the elec-
tion. At the last warning, Gelb told Haynes that he had
to improve on his lateness and get his act together be-
cause he does not want to take it any further and "take
the necessary steps."
3. The written warning issued to David Burgos
As noted above, Burgos was a union card signer, at-
tended union meetings, appeared in the union leaflet as a
union supporter, and disregarded instructions of Silvag-
noli and Haynes (from Gelb) to go home and not to
vote. In fact be acted as the union observer at the elec-
tion.
On 25 July, Burgos was given a written warning letter
signed by Judith Gelb. The letter recites that his starting
time is 9 a.m. and recently his lateness has become unac-
ceptable. The letter then sets forth his lateness and the
dates for a period between 31 May and 25 July. The
letter concludes by stating that he was on notice that
lateness will not be tolerated, and if he continues to be
"late, dismissal for cause will follow."
The letter sets forth a total of 18 days during this
period of approximately 39 working days when Burgos
was late. The amounts varied from 5 minutes late on 18
July to 50 minutes on 31 May. His average was about 15
minutes late on those days that he was late. If one were
to average all his days, including the remaining days
during this period, his average was about 6.5 minutes
late.
Haynes' record up through 5 July is as set forth above.
For the week ending 12 July Haynes was again late
every day that he worked, averaging 80 minutes late for
that week. For the week ending 19 July he was on time
once, late twice, averaging 10 minutes late. Finally for
the week ending 26 July, the only 2 days that Haynes
worked, he came in at 10:33 a.m. and 9:11 a.m., respec-
tively.
4. The alleged refusal to grant Beradino vacation
pay
Beradino was hired by Respondent on 8 October 1983.
It is undisputed that Respondent's vacation policy pro-
vides for 1 week's paid vacation after 1 year of employ-
ment and 2 week's paid vacation after 2 years. Respond-
ent also has a policy of providing a graduated amount of
paid sick days for its employees again based on length of
service.
In July 1984 Beradino requested Judith Gelb that she
be allowed to take 1-week vacation. Beradino admitted
that she knew that she was not entitled to paid vacation
at the time because she had not worked a full year, and
did not request it. Thus, she took a week's vacation with-
out pay at that time.
Beradino in November and December 1984 was out
sick because of back problems. When she returned to
work in January 1985, Respondent paid her 1 week's va-
cation pay for her first calendar year of employment
ending October 1984.
In late May 1985, Beradino spoke to Judith Gelb and
requested vacation for a week starting 22 July. Gelb,
after checking Beradino's records, informed Beradino
that she was not entitled to vacation as yet because her
second year was not up until October. However, Gelb
notified Beradino that she had 5 days of sick leave
coming to her, and asked if she wished to use those sick
days to take vacation in July. Beradino said fine."
During the months of June and July, Beradino used up
4 of her sick days and was paid for these days by Re-
spondent. A few days before Beradino's vacation was
scheduled to start, Judith Gelb went to Bernard and told
him that Beradino was due to go on vacation, but she
had used up all but one of the sick days that she had
been intending to utilize. Judith Gelb added that Bera-
dino probably has made plans and might file a charge
against Respondent if it took away her vacation. Bernard
instructed Judith to allow Beradino to take the vacation,
but to loan her the 4 days, because she would be entitled
to it in October. He instructed Judith to tell Beradino
that the 4 days would be considered a loan, because Ber-
adino might quit prior to her earning her vacation in Oc-
94 The above based on Gelb's credited testimony. I do not credit in
this instance Beradino's testimony that nothing was said to her at that
time about using sick days instead of vacation days. I note that Gelb's
testimony in this respect is supported by Beradino's personnel records.
1260 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tober. Judith Gelb did not say anything to Beradino
about this arrangement prior to the commencement of
Beradino's vacation.
When Beradino returned to work, she was given her
paycheck by Judith Gelb along with a letter from Re-
spondent. The letter stated that she was not entitled to
the vacation pay, but Respondent had loaned her $360
and took her one remaining sick day to make up her va-
cation pay. After reading the letter, Beradino complained
to Saffern and 'Simanowitz about it. They confirmed that
employees are entitled to 2 week's paid vacation after 2
years, but expressed no opinion on what Respondent had
done With respect to Beradino.
Simanowitz observed that there was no difference, be-
cause by October she will be entitled to the 2 weeks, and
the loan would disappear. Beradino replied that, if she
leaves she will owe Respondent $360 and she felt that
she did not owe anything. Simanowitz and Saffem sug-
gested that Beradino see Judith Gelb about it. Beradino
did not do so, claiming that it would not have mattered
anyway, and she did not want to let Respondent know
that she was bothered by its actions.
5. Shift changes of Beradino and Arguelles
On 12 August, Beradino was transferred from the 7
a.m. to 3 p.m. shift to a shift from 11 p.m. to 7 a.m. At
the same time, Arguelles was transferred from 3 p.m. to
7 p.m. hours to 7 p.m. to 11 p.m. These were specifically
created shifts with no other employees being present
during these hours.
Shortly after the change was effectuated, Lee heard
Bernard Gelb tell another Respondent official that he
had transferred Beradino and Arguelles "to the night
shift to let them know that they were not needed any
more at E.D.P."95
In mid-July Bernard Gelb, as well as Simanowitz,
spoke to Beradino about the shift change. They told her
that Respondent intended to shift production work to the
evenings, and switch Bill Mosely (a programer) to work
days so that it could be able to better monitor Mosely's
production. Beradino replied that she did not think that
it was a good idea and made no sense production wise.
Simanowitz and Gelb told her that Respondent wanted
to try it out.
The discussion then centered around which specific
hours would be utilized for the shift, various hours were
mentioned, and 11 p.m. to 7 a.m. was finally agreed on.
A shift differential of 10 percent was also discussed and
agreed on at that time.
Subsequently, Beradino complained to Saffern about
changing to the midnight shift. Beradino told Saffern as
she had told Gelb and Simanowitz, that the idea did not
make any sense. Saffern responded that Saffern had been
speaking to Gelb about it "until he's blue in the face," to
try to convince Gelb not to do it, but that Gelb would
not change his mind.
The change was finally effectuated on 12 August. Ber-
adino was given a letter to sign by Judith Gelb agreeing
to the change. The letter states that the changes were
"precipitated after discussions with Miss Beradino in
order to accommodate the company's work flow."
Beradino signed the letter, dated 13 August, but added
in the letter that she "was hired to work the first shift.
The only reason I'm working 11 p.m. to 7 a.m. is be-
cause you have directed me to work those hours."
A week or two later Beradino spoke to Simanowitz
and asked t , her hours changed. She complained
about being scared to work alone in the evenings. She
added that the reason given to her for the switch was so
that Respondent could monitor Mosely's work, but
Mosely was still working the evening for most of his
hours. Simanowitz replied that Mosely was having diffi-
culty obtaining a babysitter for his child, but eventually
would be working regularly during the day.
A few days later Simanowitz asked Beradino if she
would be agreeable to change to a shift from 7 p.m. to
2:30 a.m. Beradino agreed.
As for Arguelles, he was informed about the change of
his hours by Gelb and Simanowitz, and was told that the
reason was that production would be henceforth per-
formed in the evening. Arguelles was also given a letter
to sign, indicating his agreement to the change, with
similar language as appeared on the letter signed by Ber-
adino. Arguelles also signed the letter, but added that he
was hired to work a full 8 hours, and the only reason
that he was working 4 hours, from 7 p.m. to 11 p.m. "is
because you directed me to work those hours."
According to Bernard Gelb, the decision to change
these shifts was made to alleviate the conflict between
the programers (Mosely and Roth) and the computer op-
erator, over the use of the computer.
Saffem and Simanowitz concur that this was a reason
for the change, but also added that Respondent wished
to have more control over the work of Mosely. 96 They
note that Mosely and programers in general are all much
more highly paid than operators, and that Bernard Gelb
felt that his work should be monitored more closely.
Moreover, it was noted that industry practice in general
confirms to this approach, with production work being
performed in the evening and programing during the
day.
Gelb insists that the decision was a collective one be-
tween he, Simanowitz, and Saffem, and that all three of
them concurred. While Simanowitz and Saffem agree
that the change was discussed between them and Gelb,
they disagree as to the unanimity of the decision. Both of
them testified that they expressed serious reservations to
Gelb about the efficiency of Gelb's proposal. Si-
manowitz, in fact, admitted that he "was not sold on the
idea," but Gelb was insistent on effectuating the changes.
Although the purported reason for Respondent's shift
changes was for programer Mosely to be switched to the
day shift, he was not initially transferred to the day shift.
In fact it was not until mid-October, in the midst of the
instant hearing, and in fact after Beradino had testified
herein, that Mosely began to start coming in regularly on
the day shift. Simanowitz attributed the delay to alleged
babysitting problems encountered by Mosely.
95 Based on the undemed testimony of Lee. 96 Gelb did not mention this as a reason for Respondent's action.
EDP MEDICAL COMPUTER SYSTEMS 1261
6. The alleged constructive discharge of David
Arguelles
Prior to the reduction of his hours by Respondent, Ar-
guelles earned $9.35 per hour, averaging over $350 per
week. After his hours were reduced, his pay was corre-
spondingly reduced to approximately $187 per week.
Because of this reduction in income, Arguelles asserts
that he began to look for another job. On 27 August Ar-
guelles accepted a job at another computer company, Cy
Care, commencing 2 September. Cy Care is located 45
minutes from his home by car, while Respondent was a
5-minute drive. His salary at Cy Care was $8.52 per
hour. He began working at Cy Care on a shift from 8
a.m. to 5 p.m. This permitted him to retain his job at Re-
spondent, because his shift therein commenced at 7 p.m.
As of 10 September, Arguelles' hours were changed at
Cy Care to 3 p.m. to 11 p.m.
For the next 2 weeks, Arguelles called in sick at Re-
spondent while continuing to work at Cy Care. On 19
September Arguelles spoke to Saffern, told him that he
had been offered another job, and wanted to know if he
was going to be returned to a full-time schedule at Re-
spondent. Saffern replied that it was not his decision, and
suggested that Arguelles call Simanowitz.
On 22 September Arguelles called Simanowitz at
home about 11:30 p.m. in the evening. Arguelles asked
Simanowitz if Respondent intended to change his hours
back to full time. He added that he had an offer of an-
other job and that he needed an immediate decision. Si-
manowitz replied that Respondent was in the middle of
an NLRB trial, and in the midst of the Jewish holidays.
He asked Arguelles to give him a couple of weeks to dis-
cuss the matter with Saffern and Gelb. Arguelles replied
that Respondent has had long enough to change and he
needed an immediate answer. Simanowitz then asked for
a few days. Arguelles responded that he was not waiting
any longer, and that if Respondent did not agree at that
time to restore his hours, he would quit and file a con-
structive discharge charge. Simanowitz told Arguelles
that he could not stop him from taking another job, and
added that Arguelles should not threaten him. Arguelles
concluded the conversation by stating that he was not
threatening Simanowitz, but merely stating that he
would file a constructive discharge charge if his hours
were not restored.
On 24 September Arguelles resigned from Respondent.
In his letter of resignation that he submitted to Respond-
ent, he stated that he was forced to resign and accept an-
other job and that he would still work for Respondent if
his status were returned to full time. The letter added
that a constructive discharge would be filed.
Arguelles testified that he would not have accepted
the job at Cy Care if Respondent had returned him to
full-time status. He also admitted, however, that had Cy
Care not changed his hours of work, he would have con-
tinued to work at Respondent and hold both jobs.
Moreover, Arguelles, when he initially testified about
his quitting, claimed that on 24 September when he re-
signed, he did not have a job yet with Cy Care. He testi-
fied that when he told Simanowitz about his other job,
he was only "bluffmg," hoping to convince Respondent
to restore his hours.
When Arguelles was later recalled to the stand, he tes-
tified to the revised version, as set forth above, and cor-
roborated by documentary evidence, that he began at Cy
Care on 3 September. He testified further that the reason
for his failure to tell the truth originally was because he
did not want Respondent to know that he was calling in
sick at Respondent between 3 and 24 September, while
working at Cy Care.
7. The alleged discriminatory failure to grant a
wage increase to employees
The General Counsel contends that Respondent discri-
minatorily failed to grant awage increase to employees
Arguelles, Burgos, Beradino, Valentine, and Wilson after
the election.
In this connection there is no dispute that Respondent
has no formal or informal policy on wage increases re-
garding amounts or frequency.
The General Counsel relies on the statement made to
Burgos before the election by Bernard Gelb through
Haynes that Burgos would receive a raise, if he did not
appear and vote in the election.
The record does reveal that none of the above-named
employees received a raise from Respondent after the
election. The record also reveals that during the payroll
week ending 3 May employees Lynda Jackson and Terry
Rhett (both noncard signers) received raises. Rhett's
salary was raised from $6.4285 per hour to $6.8571, and
Jackson from $5.7142 to $6.2857 per hour.
On the week ending 14 June, Marilyn Nosel received a
raise from $6.7142 to $7 per hour. Nosel was a card
signer, but also a witness for Respondent at the instant
hearing.
The record further reveals that at some undetermined
date after the election Earl Haynes received a raise, the
amount of which is also not disclosed by the record.
Additionally, Lucy Maisonave received raises from
Respondent in April and in August, the amounts not dis-
closed by the record. She was also a card signer and a
witness for Respondent in the instant proceeding.
Finally, Jorge Lee who as noted was requested by Re-
spondent to "spy" on the union meeting, and was not a
card signer, received a $12-raise in mid-September.
H. Status of Valentine, King, Silvagnoll, and Al
Hennen Berger Jr.
1. Ivy Valentine
Valentine was first employed by Respondent in July
1982 as a keypunch operator. In August 1984 she ac-
quired the title of supervisor in the data entry depart-
ment, along with a raise of $10 per week. 97 Since that
time Valentine was and still is the most senior operator
in the department.
Respondent employed five other data entry operators
in the department in addition to Valentine. Valentine
spent approximately 90 percent of her time keypunching
97 She was removed from her supervisory position in June 1985. This
discussion of her work functions refers to the time when she acted as a
"supervisor."
1262 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
in the same fashion as did the other employees. The re-
maining 10 percent of her time was spent performing
functions which the Respondent contends establish that
she was a supervisor within the meaning of Section 2(11)
Of the Act.
The bulk of the time that Valentine was not punching,
was spent by her performing a function called "batch-
jug," Batching is essentially a production monitoring
device in which incoming work is separated by job type
and assigned a control number or numbers depending on
the volume of work. She also logged each job in a con-
trol book, which permits operators to select jobs that
need to be processed.
Valentine was also involved in the assignment of work
to data entry personnel. The keypunch department per-
forms about 60 different jobs, with no single employee
capable of performing all of them. Most employees are
and were capable of performing 5 jobs or less, while
Valentine as the most senior and experienced operator
could perform about 15 jobs. Some employees perform
essentially one job, and in those cases, such employees
selected their next job from the table without any consul-
tation or involvement with Valentine. When Valentine
made assignments, it was based generally on which em-
ployees are familiar with the particular job involved.
There were occasions when certain jobs are designated
as a priority job, but this decision was made by Saffern
who instructed Valentine to assign operators to perform
such work. At times Saffern himself assigned operators
to perform a priority job.
Valentine also administered and scored a test given to
new applicants for employment in the data entry depart-
ment. The test measures the applicants time of comple-
tion and accuracy in the performance of keypunching
chores. When the test was completed Valentine wrote
the score on a piece of paper and submitted it to Judith
Gelb. Valentine did not interview applicants, or make a
recommendation to Respondent with respect to the
hiring of employees.
As to discipline and/or discharge, the record revealed
one instance when Valentine became involved with the
termination of an employee. A newly hired employee,
Christine Jeffries, was making a substantial amount of
mistakes on her first morning of work. According to
Valentine, when she approached Saffern about it, he said
that he knew why she was here and it was about the
new girl. Valentine claims that she told Saffern that her
patience is worn out, that Jeffries does not understand
anything, and she was going to end up deleting all the
work. Saffern at that point, according to Valentine, told
her to go to Judith Gelb and tell Gelb that Saffern had
authorized the discharge of Jeffries. Valentine complied
with Saffern's instructions, and Jeffries was terminated
by Gelb.
Saffern testified that Valentine came to him and said
that she did not think that Jeffries "was going to work
out." Saffern claims that he, who had not observed Jef-
fries at all, relayed this information to Judith Gelb, who
terminated the employee.
Judith Gelb, on the other hand, asserts that Valentine
came to her directly and recommended that because Jef-
fries was making so many mistakes that Respondent "let
her go." According to Gelb, she followed Valentine's
recommendation and terminated Jeffries immediately.
Valentine punched a timecard as did other data entry
employees, and received a salary of $25 more per week
than the next highest operator. She had a machine as-
signed to her also as did other employees. She played no
role in granting time off, authorizing lateness, or initial-
ing timecards.
When Respondent decided to reduce the hours of
most of its employees as detailed above, Valentine was
included in the group whose hours were reduced, and
was not consulted by Respondent about the decision, nor
about the selection of data entry operators scheduled to
work in each shift on the reduced schedule.
Based on an analysis of the above and the record as a
whole, I am unable to conclude that Respondent has met
its burden of establishing that Valentine was a supervisor
within the meaning of Section 2(11) of the Act. The
Board has long held that the fact that Valentine has or
had the title of supervisor is not determinative of her
status. Marukyo U.S.A., 268 NLRB 1102 (1984); Golden
West Broadcasters, 215 NLRB 760, 761 (1974).
What is si • nificant and controlling is the extent of Val-
entine's authority in various areas, and I do not find that
it has been shown that she exercised sufficient independ-
ent judgment or discretion to meet the criteria for 2(11)
status.
Her role in the assignment of work to employees, I
fmd to have been routine and repetitive. The assignments
that she made were based primarily on the fact that most
employees were familiar with certain types of jobs, and
assignments were made on that basis. Such assignments
are not matters of discretion but, "based on employee
skills and the performance of functions necessary for
plant operations." Vanport Sand & Gravel, 267 NLRB
150 (1983).
As for Valentine's involvement in the testing of new
hires, it is clear that her role in that process was merely
"perfunctory" without the exercise of any independent
judgment. She gathered information for Respondent and
referred it without a recommendation to Gelb for her in-
dependent evaluation. See Marukyo, supra at 1103.
Valentine's role in the discharge of Christine Jeffries
was, as noted, subject to three different versions as testi-
fied to by Saffern, Valentine, and Judith Gelb. Even
crediting the version of the incident most favorable to
Respondent, i.e., that of Judith Gelb, would be insuffi-
cient to establish Valentine's 2(11) status.
At best, this incident, which could be interpreted as an
effective recommendation of discharge, can only be con-
strued as an isolated and sporadic incident of the exercise
of supervisory authority. It is well settled that such an
incident is insufficient to establish that Valentine had the
power to effectively recommend discharge and support a
supervisory finding. NLRB v. Hillview Health, 705 F.241
1461 (7th Cir. 1983); River Hills Nursing Home, 262
NLRB 1458 (1982); Washington Post Co., 254 NLRB 168,
EDP MEDICAL COMPUTER SYSTEMS

1263
184, 193 (1981); Joe and Dodie's Tavern, 254 NLRB 401,
413 (1980).98
I therefore conclude that Respondent has not shown
that Valentine exercised sufficient independent judgment
or discretion to warrant the fmding of her supervisory
status under Section 2(11) of the Act. Thus I find that at
all times material that Valentine was an employee of Re-
spondent.99
2. Daniel King
King was promoted to collection manager in March
1984 earning $550 per week. In March 1985 he received
a raise to $600. The next highest paid collection employ-
ee was paid on an hourly basis, and earned $325 per
week.
In the representation case, Respondent stipulated that
King is a supervisor under Section 2(11) of the Act, with
the power to hire and fire, and Respondent excluded his
name from the voter eligibility list in the election.
While the representation case finding that King is a su-
pervisor may not be binding on Respondent in the in-
stant ULP case l°° the stipulation entered into by Re-
spondent therein, clearly can be construed as an admis-
sion by Respondent that King exercises those superviso-
ry powers. In the instant case, Respondent introduced
absolutely no evidence to dispute or contradict this stipu-
lation, or the facts underlying same. Indeed, the record
contains evidence supporting King's powers in this
regard, such as King's admission at union meetings that
he could hire and fire, Maisonave's testimony that she
was interviewed and hired by King, and testimony of
Valentine and Shaw that King was responsible for the
discharge of employee Lee Staley.
Based on the above, I conclude that King at all times
material possessed and exercised the right to hire and fire
employees of Respondent, and is therefore a supervisor
within the meaning of Section 2(11) of the Act.
3. Joseph Silvagnoli
Silvagnoli is admittedly the "right hand" man of Re-
spondent's president, Bernard Gelb. He has also used
various titles while employed at Respondent, including
controller and assistant to the president. He is involved
in cash control, bookkeeping, accounts receivable work,
and relays messages of Bernard Gelb to employees. Sil-
vagnoli also initials timecards, which enable employees
to be paid on the basis of his initials.
Additionally, Silvagnoli signs payroll checks for Re-
spondent Consumer.
Respondent, in the representation case, stipulated that
Silvagnoli was a managerial employee and excluded from
the bargaining unit, Respondent also did not include his
98 See also Directors Guild of America, 198 NLRB 707, 708 (1972), in
which the Board refused to fmd supervisory status where the record did
not show that supervisory duties were "performed regularly or extensive-
ly."
as I would also note in this connection that Respondent's decision to
reduce the hours of Valentine and other employees, and change their
shifts without consulting her, tends to show that Respondent viewed her
as a rank-and-file employee, rather than a supervisor.
100 See Serv-U-Stores, 234 NLRB 1143 (1978).
name on the election eligibility list, and he did not at-
tempt to vote in the election.
The record also discloses that Silvagnoli is in charge
of Respondent's premises on Jewish holidays and on Fri-
days before sunset because the four main principals of
the Company, the Gelbs, Simanowitz, and Saffem are
not present. During these occasions, Silvagnoli assigns
work to employees and resolves employee problems.
Employee Jorge Lee received a raise from Respondent,
after having requested it of Silvagnoli.
Once again I find that Respondent's stipulation in the
representation case that Silvagnoli is a managerial em-
ployee should be construed as an admission against Re-
spondent of that fact. Once again the evidence of record,
rather than disputing the stipulation tends to support the
conclusion therein. Thus Silvagnoli signs checks on
behalf of Respondent, holds himself out to the public as
a representative of management, using titles such as con-
troller and assistant to the president, and relays messages
from Gelb to employees. Therefore, Silvagnoli is in an
executive type position, more closely aligned with man-
agement than with rank-and-file employees. I fmd him to
be a managerial employee. Seven-Up Bottling of Phoenix,
263 NLRB 596, 605 (1982); Textron Inc., 219 NLRB 385
(1975); Puerto Rico Sheraton Hotel, 248 NLRB 867
(1980).
Accordingly, based on such a finding, Silvagnoli must
be excluded from the appropriate bargaining unit, and
Respondent is responsible for his conduct. Sahara
Datsun, 278 NLRB 148 fn. 2 (1986).
Moreover, even if Silvagnoli were not to be found a
managerial employee, it is clear that Respondent has
placed him in a position that employees could reasonably
believe that he speaks on their behalf. Thus Silvagnoli
must be found to be an agent of Respondent. Community
Cash Stores, 238 NLRB 265 (1978); Roskin Bros., 274
NLRB 413 (1985); Chester Valley, 251 NLRB 1435, 1446
(1980), enfd. 652 F.2d 263, 269 (2d Cit. 1981).1"
4. Al Hennenberger Jr.
Hennenberger was not employed by Respondent
during the month of March. In fact his name does not
appear on Respondent's payroll records for the months
of January, February, March, or April. His name first
appears on Respondent's payroll for the week ending 24
May.102
His name was on the eligibility list submitted by Re-
spondent. When visited by union representatives during
the election campaign, Hennenberger told them that he
had not worked for Respondent since August 1984.
Respondent, although asserting that Hennenberger
should be considered an employee of Respondent in the
unit during March 1985, adduced absolutely no evidence
in this respect, nor any explanation of the gap in Hen-
101 In view of my fmdings above with respect to Silvagnoli's manage-
rial and agency status, I need not and do not decide whether Silvagnoli
was also a supervisor under Sec. 2(11) of the Act as urged by the Gener-
al Counsel.
182 A W-4 withholding certificate signed by Henneberger Jr. was
dated 3 May 1985.
1264 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
nenberger's employment from August 1984 until May
1985.
Accordingly, based on the absence of any evidence in-
dicating that Hennenberger should be considered an em-
ployee as of March 1985, I shall exclude him from com-
puting the number of employees in the unit at that time,
and in calculating the Union's majority status.
III. ANALYSIS
A. Alleged 8(a)(I) Conduct
1. Alleged threats and warnings
Based on my findings of fact as outlined above, I find
that Respondent has violated Section 8(a)(1) of the Act
as follows
By Bernard Gelb's remarks to Linda Beradino in May
that Respondent would "close the company or move
someplace else" should the Union ever become the rep-
resentative of its employees.
By Bernard Gelb's further comments to Beradino
during that same conversation, as well as by similar re-
marks to Valentine at the same time, suggesting that
these employees resign immediately, and if so he would
give them a good recommendation, and if not would
inform prospective employers that they were union orga-
nizers. Swan Coal Co., 271 NLRB 862, 866; Sahara
Datsun, 278 NLRB 1044 (1986).
Similarly, Silvagnoli's statement to Larry Wilson on 5
June, in reference to Wilson's union activities, that it
could follow him for life, and prevent him from ever
getting a job, is also an implied threat by Respondent of
blacklisting and violative of the Act.
By Bernard Gelb's statements at the meeting of em-
ployees on 28 February, and reiterated in his individual
conversations with Larry Wilson in late May and with
Earl Haynes in late March, that if the Union came in,
Respondent would no longer grant personal loans to em-
ployees.
By Gelb's comments at the 20 February meeting and
in his conversation with Wilson in May, that if the Union
came in, Respondent would become stricter with respect
to tardiness and absence. Lancer Corp., 271 NLRB 1426
(1984); Midwest Motel Management, 261 NLRB 719, 722
(1982).
By the statements of Bernard Gelb and Sherman Si-
manowitz to Beradino in May and March respectively,
that Respondent would never recognize the Union.
These remarks constitute threats of futility in violation of
the Act. Uniontown Hospital Assn., 277 NLRB 1298
(1985); Swan Coal, supra at 866.
Similarly, Bernard Gelb's remarks at his campaign
meeting with employees in May that if they selected the
Union they would be forced to strike because he would
not negotiate with the Union, and would fight the Union
"tooth and nail," are also unlawful threats of futility in
violation of Section 8(a)(1) of the Act. Sierra Hospital
Foundation, 274 NLRB 427 (1985); Childress Buick, 270
NLRB 1091 (1984).
By Judith Gelb's comments to Lopez in June after dis-
cussing Lopez' appearance in the Union's leaflet that
Gelb was going to "fire you from this place for the rest
of your life," which constitutes an unlawful threat of dis-
charge.
By Bernard Gelb's statement to Beradino that she will
continue to keypunch "as long as the Union is here," and
if she does not she will be fired.
By Silvagnoli's warning and instructing Burgos on 4
March, not to "get involved with the Union." Purolator
Products, 270 NLRB 694 (1984); Metropolitan Life Insur-
ance Co., 256 NLRB 626, 633 (1981).
Additionally, I have found that in the context of a dis-
cussion between Beradino, Simanowitz, and Saffern con-
cerning Shaw's termination, Beradino was 10asked if
Shaw brought in the Union. During that same conversa-
tion, Simanowitz told Beradino that Bernie would
"forget everything, if she [Beradino] forgot everything,
and said that Shaw was a troublemaker and brought in
the Union." I find this remark to be an implied threat of
reprisal against Beradino also in violation of Section
8(a)(1) of the Act.
The General Counsel also alleges that Simanowitz' in-
forming employees about his father-in-law's unfavorable
experiences with a union constitutes an implied threat of
discharge. I do not agree. Simanowitz made no predic-
tions of what would or might happen at Respondent. He
merely apprised the employees of the experiences of his
father-in-law in connection with a union, and it cannot
be construed as a prediction or a threat of retaliatory
conduct by Respondent. Michael's Markets, 274 NLRB
826 (1985).
In a similar vein, the General Counsel also argues that
Respondent, by virtue of its posting of a poster entitled
"Is this Job Security," showing three companies that had
been closed as a result of union affiliations, including one
company (Korvettes) that had been represented by the
Union, and Gelb's reference to these facts at meetings,
has impliedly threatened plant closure in violation of the
Act. Once again, I do not agree.
Neither these posters nor any of Gelb's remarks at the
meetings suggest that Respondent would close if the
Union came in. Pilliod of Mississippi, Inc., 275 NLRB 799
(1985). Respondent has the right to give employees infor-
mation with respect to industry conditions, and was
merely stating "economic reality" by informing employ-
ees of these events. Michael's Markets, supra.
Accordingly, I do not find that Respondent has violat-
ed the Act by either of these actions.
2. Alleged interrogations, solicitations of grievances,
and promises of benefit
I also fmd violations of Section 8(a)(1) with respect to
the following:
Saffern's interrogating Beradino whether Shaw had
brought in the Union on 4 March. Greensboro News Co.,
272 NLRB 135 (1985).
Bernard Gelb's asking employees at a meeting whether
they were going to the union meeting that night. I note
that this remark was made immediately after Gelb un-
lawfully threatened to eliminate personal loans and to
become stricter with respect to tardiness and absence.
The questioning of Beradino by Simanowitz in March
about what she thought about the Union, and by Saffern
EDP MEDICAL COMPUTER SYSTEMS 1265
in May about why the employees wanted the Union, and
why and whether they still wanted the Union. The
above two conversations, in and of themselves might not
be construed as coercive under the standards set down
by the Board for unlawful interrogation. See Sunnyvale
Medical, 277 NLRB 1217 (1985); Rossmore House, 269
NLRB 1176 (1974). However, I conclude that these inci-
dents in the context of Respondent's pervasive and sys-
tematic 8(a)(1) conduct, as outlined above and below,
reasonably tends to color the employees perception of
the character and reason for such inquiries, and renders
such questioning coercive and unlawful. Cardivan Co.,
271 NLRB 563 (1984); Sierra Hospital Foundation, 274
NLRB 427 (1985).
I have found above that Saffern throughout the elec-
tion campaign solicited Beradino's complaints and rea-
sons for wanting the Union, discussed them with her,
went back to Bernard Gelb with her suggestions, and
even made some proposals of his own to Gelb. Finally,
he reported back to Beradino that Respondent would
"see if there is anything we can do." I find that by the
above conduct, Respondent has unlawfully solicited
grievances of its employees in violation of Section 8(a)(1)
of the Act. Uniontown Hospital, supra; Childress Buick,
supra at 1093; Montgomery Ward & Co., 253 NLRB 196,
206 (1980).
Daniel King's remarks at the union meeting on 28 Feb-
ruary, in which he suggested that employees tell their
problems and gripes to him, and he would speak to Ber-
nard Gelb and see what could be done about working
them out, I find to be similarly violative of the Act.
I also conclude that Respondent has unlawfully prom-
ised employees benefits and improvements in their work-
ing conditions, if they abandoned their support for the
Union, by the following conduct:
(1) Bernard Gelb's telling Earl Haynes in March that,
because no union had been "found" at the 12 March
meeting, Haynes could receive a loan from Respondent.
(2) Bernard Gelb's informing Wilson in late May that
he would lend Wilson the $20 that Wilson had requested,
if Wilson "supported the Company."
(3) Sllvagnoli's promise to Wilson on 5 June, con-
firmed by Bernard Gelb himself to Wilson, of an extra
sick day to be used by Wilson on 6 June, the day of the
election, if he did not vote.
(4) The statements of Silvagnoli to Wilson and Burgos
that if they did not vote in the election "everything will
be forgotten." This implies that Respondent would for-
give all past transgressions by these employees, if they
did not vote.
(5) Similarly, the statement of Earl Haynes that Gelb
had instructed him to tell Wilson that the only way
Wilson could be able to "save his hide" was not to show
up for the election, has a similar implication and justifies
a similar finding.
(6) Additionally, I find unlawful Earl Haynes telling
Burgos that he was relaying a message from Bernard
Gelb, and that Burgos should leave, and not vote in the
election, and if so "everything will be forgotten" and
Burgos was guaranteed a raise. I find that the evidence is
sufficient to establish that Haynes was acting as an agent
for Respondent in connection with his comments to
Bingos, as well as to Wilson. I note that Haynes told
Burgos and Wilson that he was relaying messages from
Bernard Gelb, and Haynes immediately went in to see
Gelb and reported back to Burgos that Burgos' request
to Gelb for a guarantee of Respondent's promise in writ-
ing was denied. Moreover, Supervisor Silvagnoli made
similar comments to Burgos and Wilson, and Gelb per-
sonally confirmed the promise of an extra sick day to
Wilson, for the day of the election.
In these circumstances, Wilson and Burgos could rea-
sonably believe that Haynes was reflecting company
policy, and speaking and acting for management in con-
nection with these remarks. Thus, I find that Respondent
is responsible for the above conduct of Haynes. Commu-
nity Cash Stores, supra. See also Wm. Chalson & Co., 252
NLRB 25, 33, 34 (1980).
3. Alleged surveillance
I have found that Respondent by Bernard Gellb sent its
agent Silvagnoli to the Union meeting on 28 February,
instructed Silvagnoli to take employee Lee to the meet-
ing and report back to Gelb on what occurred therein,
and in fact discussed with Silvagnoli subsequently the
events of the meeting.
Moreover, Judith Gelb also instructed Lee that he
would be attending the meeting that evening and not to
sign anything.
The above conduct clearly constitutes unlawful sur-
veillance by Respondent in violation of Section 8(a)(1) of
the Act. Midwest Motel Management, supra at 723; Porta
Systems, 238 NLRB 192 (1978). I so find
The complaint alleges and the General Counsel also
contends that Respondentengaged in unlawful surveil-
lance of employees' union activities by the conduct of Si-
manowitz on 8 March and Judith Gelb on 6 June.
The record reveals in connection therewith that on 8
March, while union officials were handing out leaflets to
employees, Simanowitz stood at the garage door, and ob-
served the leafletting for about an hour.
As for Judith Gelb, on the day of the election, she sat
in a chair in front of the Respondent's entrance with
some papers in her hand, and again observed the union
leafletting for a short period of time.
The record also reveals that the day before the elec-
tion, employees Maisonave and Nosel had told Gelb that
they were afraid that something might happen on the
day of the election, and asked Gelb to watch for them as
they came into work.1°3
Gelb's testimony that these complaints to her motivat-
ed her actions in sitting outside the premises on the day
of the election is supported by the fact that Gelb imme-
diately went inside after Maisonave and Nosel entered
the premises.
I find nothing unlawful in the conduct of Respondent
with respect to either of these incidents.
The Board has long held that union representatives
and employees who choose to engage in their union ac-
103 Maisonave testified that she was afraid of possible violence, be-
cause of newspaper reports of picket line violence during a then pending
hotel stiike.
1266 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tivities at the employer's premises have no cause to com-
plain that management observes them. Porta Systems,
supra; Milco, Inc., 159 NLRB 812, 814 (1966); Emenee
Accessories, 267 NLRB 1344 (1983).
Therefore, the observation by Simanowitz and Gelb of
the open leafletting by the union agents in front of Re-
spondent's premises does not constitute unlawful surveil-
lance. Emenee, supra; R. H. Macy & Co., 267 NLRB 177,
179 (1983); Palby Lingerie, 252 NLRB 176 (1980).
The General Counsel's position is not enhanced herein
by the fact that Judith Gelb was engaged in writing on
paper while observing the union activities. There is no
record evidence that Gelb's notetaking had any relation
to any union activity of employees. See Uniontown Asso-
ciates, supra; Riley-Beard, Inc., 271 NLRB 155, 157, 164
(1982).
To the contrary, the record contains unrefuted and
credited testimony by Judith Gelb that she was doing
business-related work at the time that she remained out-
side the premises and observing the leafletting. More-
over, in the case of Judith Gelb's observations, the
record also establishes that her actions were motivated
by a lawful purpose of acceding to the wishes of her em-
ployees to watch for them when they come to work.
Based on the above, I shall therefore recommend dis-
missal of these allegations in the complaint.
B. Alleged Discriminatory Discharges and Conduct by
Respondent
1. Alleged discharge of Ester Shaw
The Supreme Court has approved and supported the
Board's burden shifting approach in the analysis of
NLRB discrimination cases. Thus, where an employee's
protected conduct is a motivating factor in an employer's
decision to discharge or otherwise take adverse action
against that employee, a violation of the Act is estab-
lished, unless the employer shows, as an affirmative de-
fense, that it would have taken the same action for legiti-
mate reasons, absent the employee's protected activities.
NLRB v. Transportation Management, 462 U.S. 393
(1983), adopting Wright Line, 251 NLRB 1083 (1980).
It is therefore necessary in assessing the alleged dis-
charge of Shaw, as well as the other alleged discrimina-
tory actions by Respondent, to decide whether the Gen-
eral Counsel has met its burden of establishing by a pre-
ponderance of the evidence that protected activity en-
gaged in by Shaw (and/or the other discriminatees) were
"motivating" factors in Respondent's personnel actions in
regard to them.
With respect to Shaw, the General Counsel has pre-
sented an overwhelming prima facie case that her union
activities were a motivating factor in Respondent's deci-
sion to discharge her. In fact I am convinced that in the
instant case, the General Counsel has shown that the
union activity of Shaw was the only factor in Respond-
ent's actions.
Thus, Shaw was the employee of Respondent who
brought in the Union. She was seen on 1 February by
Respondent's agents, Silvagnoli and King, bringing in
Union Official DePietro to the plant, and meeting with
DePietro and other employees. While neither Silvagnoli
nor King knew who DePietro was on 1 February, they
found out on 28 February when DePietro began leaflet-
ting and DePietro conducted the union meeting on that
evening, with both Silvagnoli and King in attendance.
Silvagnoli, as I have found, recognized DePietro as
the "friend" of Shaw, who met with her and employees
on 1 February and reported this fact to Bernard Gelb on
28 February when he returned from the union meeting.
The very next working day, 1 March, Shaw was ter-
minated by Respondent. Moreover, on 4 March the first
working day after the discharge, Saffern interrogated
Beradino about whether Shaw had brought in the Union,
and later on in the conversation told Beradino that
Bernie Gelb would forget everything as long as she (Ber-
adino) would say that Shaw was a troublemaker and had
brought in the Union. Finally, and perhaps most signifi-
cantly, Gelb admitted to Beradino, during a conversation
in May, that he had gotten rid of Shaw because she was
a troublemaker and had brought in the Union, and that
he thought that everything would quiet down after that.
The above facts coupled with the pervasive and sub-
stantial 8(a)(1) violations described above, establish a
compelling fmding that Shaw's discharge was motivated
by her union activities.
Having so found, the burden then shifts to Respondent
to establish by a preponderance of the evidence that it
would have taken the same action against Shaw, absent
her union activities. Clearly Respondent has not met its
burden herein, as its position is simply that Shaw was not
terminated, but resigned.
I have concluded above that Respondent's contention
has not been established, since Shaw was discharged. As
noted, Shaw left work on 1 March with work in her ma-
chine, and told Saffern that she would finish it on
Monday.
Although she had informed Respondent that she was
intending to leave for a new job in Tennessee sometime
in March, she never informed them that she would be
leaving on 1 March, and in fact Respondent by Saffern
was aware that she was pressing her prospective employ-
er for a starting time, and was not successful in finalizing
a date. Most importantly, of course, Shaw never did
obtain the job in Tennessee, that Respondent claimed
that she had resigned to accept on 1 March.104
It is obvious that Respondent siezed on the fact that
Shaw had notified it of her desire to leave sometime in
March, and accelerated this action into an alleged resig-
nation, by discharging her on 1 March, to rid itself of the
instigator of the union organizing efforts at its facility.
By such conduct, Respondent has violated Section
8(a)(1) and (3) of the Act. I so find.
2. Alleged changes in work rules
I have found above that Respondent, immediately
upon becoming aware of the Union's organizing on 28
February, implemented a policy of no personal phone
104 I have considered the fact that Shaw wrote on an employment ap-
plication with her new employer that she had resigned However, I am
persuaded that Shaw's testimony that she was afraid that her discharge
for union activities would prejudice her future employment opportunities
is a credible and accurate explanation for her actions in that regard
EDP MEDICAL COMPUTER SYSTEMS

1267
calls during working hours, no smoking, and no radio
playing. A notice was posted to this effect on 1 March.
I have also found above, contrary to the testimony of
Judith Gelb, that these rules had not been in effect nor
enforced by Respondent as of this time.
While a memo posted in May 1983 referred to person-
al phone calls and radio playing, the record is clear that
these policies had not been enforced since that time, and
that employees had been permitted to receive personal
calls at any time, and to smoke and play their radios
without any attempts by any of Respondent's officials to
prohibit such conduct.
I would also note that Respondent furnished no testi-
mony explaining what suddenly motivated it to repost a
notice from May 1983, and to start enforcing allegedly
current work rules.
In these circumstances I am convinced that based on
the timing of these actions, as well as the many 8(a)(1)
violations outlined above, including threats by Bernard
Gelb to enforce rules (in that case lateness and absence)
more strictly because of the Union, that the General
Counsel has established that Respondent's actions in this
regard were motivated by the union activities of its em-
ployees.
Since Respondent has offered no explanation why it
chose to implement these rules in February and March, it
has not shown that it would have taken this action
absent such activities.
I therefore conclude that Respondent has violated Sec-
tion 8(a)(1) and (3) of the Act by implementing work
rules prohibiting personal phone calls, radio playing, and
smoking. Tra-Mar Communications, 265 NLRB 664, 682
(1982); Kevah IConner Inc., 256 NLRB 67, 71 (1981).1°5
3. Alleged elimination of overtime
The record discloses that prior to the appearance of
the Union, four employees of Respondent, Beradino,
Valentine, Smith, and Lee, were assigned or permitted to
work significant amounts of overtime hours for Respond-
ent.106
On the evening of Friday, 1 March, the day after the
appearance of the Union, while Beradino, Smith, and
Valentine were working overtime, Judith Gelb burst into
the department, screamed at the employees to leave the
premises immediately, and had them personally escorted
out of the building, 1 " while telling them to read the
notice posted on the way out.1°5
Thereafter Smith, Valentine, and Beradino received
virtually no overtime assignments from Respondent. 1°5
1°5 Even if it were found that Respondent was merely enforcing rules
then in effect more strictly, such conduct would still be violatiVe of the
Act, Service Spring Co., 263 NLRB 812, 818 (1982).
106 As noted, Valentine and Smith averaged between 11 and 12 hours
per Week for the 4 payroll weeks in February. Beradino averaged 14
hours per week during this period of time, and 15-20 hours per week in
general. Lee averaged 11 hours per week during the weeks of February.
107 This was the first and only time that employees had been personal-
ly escorted out of the building.
108 The notice apparently announced the elimination of overtime
unless personally approved by management, as well as imposing the dis-
criminatory work rules as outlined above.
"9 Thus Valentine was asked to and worked 12-1/2 hours of overtime
over a 3-week period, shortly before the instant hearing began, in Sep-
Valentine was specifically told by Saffern on 4 March
that henceforth there would be no more overtime.
Valentine, Smith, and Beradino were all union card
signers, and were part of the original group who met
with DePietro and Shaw on 1 February when the union
organization commenced at Respondent's premises. I
note that Respondent's agents, Silvagnoli and King, both
observed this meeting, and I find it likely that this was
reported to Bernard Gelb, as was the prominence of
Shaw, by Silvagnoli and/or King on 28 February, when
DePietro and the Union began leafletting and conducted
a union meeting.
Additionally, Beradino and Valentine were both sub-
ject to various 8(a)(1) violations as set forth above, in-
cluding interrogations, threats to close, move, discharge,
blacklist, and suggestions to leave. Moreover and most
significantly, Beradino was specifically told by Bernard
Gelb in May, in the context of numerous 8(a)(1) viola-
tions, that "her overtime" was paying for his lawyer's
fees, incurred as a result of the union campaign.
Based on the above, I conclude that the General
Counsel has shown that the decision to virtually elimi-
nate overtime for Smith, Valentine, and Beradino on or
after 1 March, was motivated by their union activities.
I also conclude that Respondent has fallen far short of
meeting its burden of establishing that it would have
taken the same action, absent such union activities. Its
purported defense as outlined by Judith Gelb, that eco-
nomic difficulties motivated the action, has not been
_proven. Indeed she admitted that she was not even in-
volved in the decision, and was merely told about it by
Bernard Gelb. Neither Bernard Gelb nor Sherman Si-
manowitz, who testified on other matters, furnished any
testimony with respect to the decision to eliminate or
reduce overtime.
Moreover, Matthew Saffern, Respondent's only other
official who testified about the loss of overtime, claimed
that as far as he knew no decision was made by Re-
spondent to eliminate or curtail overtime, and attributed
the decline of overtime for Beradino and Valentine to
other factors, which was also not substantiated by any
evidence whatsoever.
Accordingly, Respondent has not met its burden of es-
tablishing that it watild have eliminated or reduced over-
time for these employees, absent their union activities,
and I find that it has therefore violated Section 8(a)(1)
and (3) of the Act. Lawson Printers, 271 NLRB 1279,
1284 (1984); Olympia Plastics Co., 266 NLRB 519, 535
(1983).
tember 1985. Smith worked 1 hour of overtime subsequent to March, and
Beradino permitted to work 3.5 hours of overtime during the payroll
week of 19 April. Lee on the other hand continued to receive overtime
assignments, and in fact his average hours of overtime increased during
the period immediately after it was eliminated for Valentine, Beradino,
and Smith. It must be emphasized that Lee was not a card signer, and
attended the 28 February union meeting at Respondent's instructions to
act as a spy.
1268 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4. The alleged termination of Joy Scott
Joy Scott although not one of the leading union adher-
ents, was present at the meeting of 28 February, and
signed an authorization card on that date.'"
The record also reveals that during the month of Feb-
ruary, prior to the union meeting, Scott had several con-
versations with Judith Gelb pertaining to Scott's going
to England to tend to her terminally ill mother. During
these conversations, Gelb agreed to Scott's request for a
1-month leave of absence, and in fact Gelb wrote on her
calendar that Scott would be returning to work on 1
April.
Moreover, I have also found that Saffern spoke to
Scott in mid-February, consoled her about her mother,
and added that Scott should not worry "because her job
will be there when she returns." Finally, Silvagnoli ap-
proached Scott in late February, and offered her the use
of the company premises for the storage of her car when
she went away.
However, notwithstanding the above evidence, which
establishes beyond any doubt that Scott had received
permission to take a leave of absence, and to return on 1
April when her job will be waiting for her, Respondent
terminated her by letter dated 5 March.
It is quite clear that this letter, which states that Re-
spondent "had to replace her," and if she wants to be
"rehired" upon her return, to contact Respondent, is a
letter of discharge. I so find."1
Based on the above, including the fact that before the
union meeting, Scott received permission for a leave of
absence with a promise to hold her job open, and a week
after the union meeting, Respondent sent her a discharge
letter, coupled with the other evidence of 8(a)(1) and (3)
violations set forth herein, I conclude that the General
Counsel has established that a motivating factor in Re-
spondent's decision to terminate Scott was her union ac-
tivities.
Once again Respondent has fallen short of meeting its
burden that it would have taken the same action against
Scott, absent such union activities. Initially, it must be
noted that Respondent claimed that it did not terminate
her, but she abandoned her job. I have, as noted, con-
cluded that contrary to Respondent's position that Scott
was terminated by the letter dated 5 March.
The record also established that although Respondent's
letter notified Scott that Respondent had to replace her
because "work had to be done," in fact Scott was not re-
placed at that time.
Gelb's purported explanation for this discrepancy in
the letter is not convincing. She asserted that Respond-
ent did intend to, and in fact had, offered a job to a
Carol Roberts to replace Scott. However, according to
Gelb, Respondent's financial difficulties prevented Rob-
erts from being hired, and Respondent rescinded its offer
to her. I note that the letter to Scott was dated on 5
11 ° I note that both Silvagnoli and King, Respondent's agents, were in
attendance at the 28 February meeting. Moreover, the record reveals that
Silvagnoh specifically reported to Bernard Gelb about the events of the
meeting. I therefore find that Respondent became aware of Scott's union
activities on 28 February.
" Moreover, Bernard Gelb around this time told Beradino that Scott
had been "fired."
March, right in the middle of Respondent's alleged finan-
cial difficulties, a week after the bank meeting, and a
week before the reduction in hours of employees. Thus,
on 5 March, if financial problems were in any way moti-
vating factors in its actions with respect to Scott, they
were present at that time. Yet, the letter to Scott on 5
March still asserted, falsely as it turns out, that it "had to
replace her."
Moreover, its actions, when Scott returned to work on
2 April and requested her job back, constitute persuasive
evidence of the discriminatory nature of the original dis-
charge, as well as an independent additional violation of
a refusal to reinstate or rehire Scott on that date. Thus,
the record reveals that Scott had not been replaced, and
there was a huge backlog of work in data entry, in part
due to the reduction of hours that had occurred. Scott
was a competent employee, needed no training, and
clearly could have assisted in reducing the backlog.112
Yet, when Scott asked for her job back on 2 April and
thereafter, Gelb put her off, claimed she was too busy to
talk to Scott, and fmally suggested that Scott fmd herself
another job. When Scott reminded Gelb that she had re-
ceived permission from her for a leave of absence prior
to leaving, and was now ready to work as agreed, Gelb
replied that she had no more time to talk and hung up on
Scott. I note that Gelb did not deny to Scott that she
had given Scott such permission.
Gelb's further assertion that when Scott requested her
job back in April, Respondent's financial problems pre-
cluded her from being hired, was also not established.
Gelb contended that Respondent was satisfied with the
complement of its employees at the time, and that she
checked with Simanowitz and/or Saffern and was told
that Scott was not needed. Gelb was not corroborated in
this testimony by either Simanowitz or Saffern, and in
fact Saffern specifically denies being so consulted.
As of 2 April, Respondent's fmancial constraints were
apparently dissipated. The sole evidence presented by
Respondent of its economic difficulties consisted of testi-
mony and records demonstrating a large cash flow prob-
lem resulting from the failure of the ECB to render
timely payment. However, on 22 March ECB made pay-
ments of $143,000 to Respondent. No evidence was ad-
duced by Respondent of any other financial problem.
Thus I find that as of 2 April, the prior financial difficul-
ties encountered were no longer prominent, and were
not a factor in its decision not to rehire Scott.
Finally, and perhaps most significantly, when Re-
spondent decided to hire employees in data entry during
the months of June and July, it failed to offer a position
to Scott. Judith Gelb's explanation for this "oversight,"
that she simply forgot about Scott, I find too ludicrous
to consider seriously. I note that a complaint was issued
by the Board on 21 May, specifically alleging Scott's dis-
charge and Respondent's refusal to reinstate Scott to be
violative of the Act.
Respondent finally offered Scott a position in August,
only after going through a number of unsatisfactory new
112 I also note in this connection that Respondent was forced to sub-
contract work previously performed by data entry personnel during this
period of time because of the backlog
EDP MEDICAL COMPUTER SYSTEMS

1269
employees, after which, according to Gelb, she "sudden-
ly" remembered Scott and offered her a job. Even this
job offer was as a new employee, minus her prior senior-
ity.
Accordingly, I conclude that Respondent has not met
its burden of establishing that it would have terminated
Joy Scott on 5 March and/or refused to reinstate her on
2 April, absent her union activities, and that it therefore
violated Section 8(a)(1) and (3) of the Act.
5. The reduction in hours
Once again the General Counsel has demonstrated a
strong prima facie case that Respondent's decision to
reduce the hours of its employees on 12 March was mo-
tivated by their union activities.
The record reveals that the union representatives ap-
peared at the premises of Respondent on 28 February
and began leafletting its employees. This triggered, as I
have found above, Respondent's unlawful discharge of
Esther Shaw, the instigator of the union drive on 1
March, numerous 8(a)(1) violations both on 28 February
and thereafter by various supervisors and officials of Re-
spondent, the unlawful changes in work rules of employ-
ees, and the discriminatory elimination of overtime for
three leading adherents on 1 March. Finally, on 5
March, Respondent discriminatorily discharged another
union supporter, Joy Scott, also in violation of the Act.
In the context of these violations, the Union filed a pe-
tition on 4 March, and made an oral demand for recogni-
tion on Respondent on 5 March, seeking a unit of com-
puter technical employees. Judith Gelb refused to recog-
nize the Union and called the police to have the union
representatives removed.
On 11 March the Union again began leatletting in
front of Respondent's premises, announcing another
union meeting for the next day, 12 March. On the very
same day that the union meeting was first publicized, 11
March, Respondent announced to its employees an un-
precedented reduction in hours for most of its employ-
ees, to be effective the next day, 12 March, the day of
the union meeting.
Half of the employees affected were placed on a morn-
ing shift and half on the afternoon shift, each of them
having their hours cut in half. This action had the imme-
diate effect of reducing the likelihood that the 12 March
union meeting would be as well attended as the 28 Feb-
ruary meeting. In fact, as noted above, this was the clear
result, as the attendance at the 12 March meeting was
substantially less than at the initial 28 February meeting.
That Respondent was quite concerned about the 12
March meeting is demonstrated by Bernard Gelb's ac-
tions with regard to the loan request of Earl Haynes.
Thus when Haynes asked Gelb for a loan prior to the 12
March meeting, Gelb declined, telling Haynes that he
could not do so while the Union was around.
However, after the 12 March meeting, Gelb got back
to Haynes and told him that he now could receive a loan
from Respondent, since no union had been "formed" at
the union meeting. Thus it is clear that Gelb anticipated
the possibility of the Union being "formed" at the 12
March meeting, and it is reasonable to conclude, which I
do, that he was most anxious to reduce the attendance of
his employees at the union meeting."3
Additionally, during the second week of the reduction,
in the course of discussing the issue of the reduction of
employee hours with Lee, Bernard Gelb stated that if
the Union was ever elected, he would "cut everybody's
hours." This remark further demonstrates that the March
reduction in hours was motivated by the appearance of
the Union.
The above evidence is in my view more than sufficient
to meet the General Counsel's burden of establishing that
protected conduct motivated Respondent in its decision
to reduce the hours of its employees on 12 March.
The issue then becomes whether Respondent has met
its burden of establishing that it would have taken the
same action absent union considerations. In this respect,
Respondent had adduced a considerable amount of evi-
dence supporting such a conclusion. Indeed, the record
is undisputed that Respondent was experiencing substan-
tial cash flow problems at the time, due to the failure of
ECB to make timely payments to it for services ren-
dered. ECB was over $100,000 in arrears at the time of
the reduction. Moreover, Respondent had experienced
problems with vendors, had its electricity turned off, had
credit cards canceled, and experienced checks bouncing.
Finally it had in late February met with representatives
of the Union Chelsea Bank to discuss problems in Re-
spondent's delinquent loan payment to it, during which
bank representatives suggested that Respondent take per-
sonnel actions to alleviate its cash flow shortage, includ-
ing possibly layoffs of employees.
However, on closer scrutiny, the above-described evi-
dence of Respondent's financial problems is not persua-
sive, and is in my view insufficient to meet Respondent's
burden of proving that it would have reduced the hours
of its employees on 12 March, absent the appearance of
the Union.
Respondent's cash flow problems in February and
March derived primarily from the failure of the ECB to
make prompt payment to it for prior services performed.
In this connection the record revealed that money was
owed for work performed months before February and
March. The problem with Respondent's reliance on the
ECB overdue payments as justifying the reduction in
hours is its choice of 12 March for the start of such
action, and the absence of any explanation for such a se-
lection. The record shows that Respondent's cash flow
problems were not significantly different in February
than they were in March. Indeed Respondent offered tes-
timony herein with respect to the shutdown of Respond-
113 I have considered Respondent's assertion in this connection that
Respondent could not have had any animus towards employee attend-
ance at union meetings, because Simanowitz, on 28 February, urged em-
ployees to attend such meeting to find out for themselves about the
Union. However, I find that this remark of Simanowitz was overshad-
owed and dissipated by the other above-described antiunion animus to-
wards employees' union activities, including attendance at union meet-
ings. I note in particular Respondent's sending supervisors and employees
to spy on and disrupt the 28 February meeting, and unlawfully soliciting
employee grievances therein, as well as the other threats, promises, and
interrogations detailed above, including some violations by Simanowitz
himself.
1270 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ent's electricity by Con Edison for nonpayment of its
bill, caused by Respondent's cash flow shortage. Howev-
er, this incident occurred on 6 February. Bank records
from Respondent's main account, the Union Chelsea
Bank, showed a balance of $391 on 6 February. On 8
March, the date that Respondent claims that it made the
decision to reduce hours, this account contained
$1210.42.
Respondent took no personnel actions on 6 February,
or at any time during February, even after the meeting
with the Union Chelsea Bank, wherein the bank repre-
sentatives suggested that it do so. It must be emphasized
that during the month of February, Respondent was also
owed a considerable amount of money from ECB, and at
that time had no indication from ECB when payment
would be received. Moran's response when asked by Re-
spondent's representative as to the date of payment was
simply "I don't know."
Yet, when Respondent finally decided to take action
to cut personnel costs, on 8 or 11 March, it had just been
told by Moran that Respondent's contract with the city
had been approved, and estimated that payment would
be made in 2 or 3 weeks. It seems rather strange that Re-
spondent chose this particular time to finally take action
to reduce costs, when at long last it finally had received
an estimate l " that payment was imminent.
It is also interesting to note that Respondent's wit-
nesses claim that the decision was made on Friday, 8
March, to reduce the hours of its employees. Yet, the re-
duction was to be effective on Tuesday, 12 March, the
second day of Respondent's payroll week. No explana-
tion was given about why this was done. The only expla-
nation that the record suggests for the choice of 12
March as the commencement of the reduction is as
noted, the fact that a union meeting was scheduled for
that day, and Respondent became aware of it on 11
March, the day that the reduction was announced. See
Car Walker's Cash Stores, 249 NLRB 316, 324 (1980),
affd. 108 LRRM 3007 (6th Cir. 1981).
It is not surprising therefore, and most damaging to
Respondent's assertions herein, that Bernard Gelb admit-
ted that Respondent made no calculations concerning
how much money it would save by its reduction in hours
of employees. An analysis of Respondent's payroll for
the relevant period shows a rather limited savings. A
comparison of its payroll for the week prior to the re-
duction (week ending 8 March), and the 3 weeks of the
reduction (week ending 15, 22, and 29 March), shows a
savings of only $1639.51 for the entire 3-week period.
More significantly, an analysis of the Respondent's fi-
nancial condition at the time of the reduction must also
include Respondent's balances at other accounts. These
accounts refute Respondent's reliance on the overdrafts
in the Union Chelsea account, since they demonstrate
that on 11 March the date the reduction was announced,
Respondent's total balances in all banks exceeded $7000.
In contrast the record establishes that in October 1984,
prior to the appearance of the Union, Respondent's com-
bined balances in all its accounts consistently totaled
below zero, and reached a $14,000 overdraft on 12 Octo-
114 I note that Moran's estimates had usually been accurate in the past.
ber. Respondent's Union Chelsea account in October
1984 contained 65 overdrafts ranging from $10,106 to
$23,546. Thus Respondent's financial situation in October
1984 as reflected in the bank accounts was clearly worse
than it was in either February or March 1985. Yet, Re-
spondent took no action to reduce hours, layoff employ-
ees, or to otherwise reduce costs at that time. Conley
Detlefton Restaurant, 272 NLRB 993, 996, 997 (1984); My
Stores, 147 NLRB 145, 155 (1964), affd. 345 F.2d 494,
497 (7th Cir. 1965).
Respondent's contention that its cash flow shortage
caused by ECB's late payments, motivated the reduction
in hours, is further damaged by examining its payroll
system. Thus as noted employees are paid on the Tues-
day after the prior payroll week ending on Friday.
Therefore, Respondent would not realize any savings in
money paid out until Tuesday, 19 March for the payroll
week ending 15 March. Respondent received checks for
$143,000 from ECB on 22 March, precisely as predicted
by Moran. Thus the record reveals only a 3-day period,
wherein Respondent enhanced its cash flow picture by
the reduction in hours, prior to receipt of the ECB
moneys.
I also note that Respondent did not immediately re-
store its employees' hours on 22 March when the ECB
payment was received. It did not call the data entry em-
ployees back to full-time status until 29 March and the
remaining employees until later. Thus it was not until 10
April, 2-1/2 weeks after Respondent's balances exceeded
$160,000 and 4 weeks after notice that ECB money
would be paid, did employees whose hours were cut re-
ceive pay for a full week.
Respondent's attempt to explain the continuation of
the reduction in hours past 22 March is unconvincing. It
is asserted that Respondent did offer data entry operators
the opportunity to return to full-time status about 22
March, but that the employees refused to do so because
of their desire to attend the representation hearing going
on at the time. However, while this testimony, even if
credited, might explain certain employees' failure to
work full time on days that the hearing was scheduled
such as 22, 27, and 28 March, it does not account for 25
and 26 March when no hearings were held or scheduled.
I conclude therefore that Respondent merely asked em-
ployees to fill in and work full time only to replace other
employees who were testifying, and did not permanently
restore or offer to restore their hours until 29 March."5
The above demonstrates that the ECB nonpayment was
not responsible for Respondent's decision to reduce the
hours of its employees.
Moreover, I also rely on the inconsistency between
the testimony of Respondent's officials in explaining its
decision for the reduction. See Majestic Molded Products,
143 NLRB 71, 76 (1973), affg. 330 F.2d 603 (2d Cir.
1964). In this connection, both Gelbs contend that a de-
cision was initially made to layoff employees, based on
recommendations by Simanowitz and Saffern, but that
Judith Gelb persuaded Bernard Gelb to rescind this
I note that it did permanently restore the hours of Lynda Jackson,
a nonunion supporter and Respondent's witness at the R case hearing on
22 March.
EDP MEDICAL COMPUTER SYSTEMS

1271
action, and to allow everyone to work some hours.
However, both Simanowitz and Saffern flatly contradict
the Gelbs in this respect, and deny that any decision was
made to layoff anyone and contend that they rejected
the option of layoffs at all times during the management
deliberations.
Respondent argues strenuously that the Union's peti-
tion and demand sought to represent only data entry and
computer employees, and that the reduction in hours was
effectuated across the board, and included employees
whom the Union at that time was not seeking to repre-
sent, Bardcor Corp., 270 NLRB 1083, 1088 (1984).
However, this argument has long been rejected by
both the Board and the courts. Disciplinary action by an
employer can violate 8(a)(3) of the Act, "even if some
white sheep suffer along with the black." Majestic
Molded Products v. NLRB, 330 F.2d 603 at 606 (2d Cir.
1964). See also Swan Coal Co., 271 NLRB 862, 868
(1984).
Moreover, an examination of the employees selected
for the reduction does in fact support a fmding of dis-
criminatory motivation. As Respondent itself argued, the
Union sought to represent only the data entry and tech-
nical employees, and it was clear that data entry was the
hotbed of the Union's strength. Every single one of the
data entry employees had their hours reduced. The only
technical employee not reduced was Linda Beradino.
While Beradino was a union adherent, I note that she
had already been discriminated against by the elimination
of her overtime hours, causing a reduction of 10 to 15
hours of work for her. In any event Respondent's further
argument that its failure to reduce Beradino's hours on
12 March is dispositive of the nondiscriminatory nature
of its actions is misplaced. That Respondent did not dis-
cipline all employees who were union supporters does
not alter my findings. A discriminatory motive, other-
wise established, is not disproved by an employer's proof
that it did not take similar action against all union adher-
ents. Master Security Services, 270 NLRB 543, 552 (1984).
Respondent's choice of the other employees whose
hours were not reduced, also raises suspicions and fur-
ther supports a discriminatory finding. See Cas Walker's,
supra at 325.
Respondent's witnesses testified that the employees so
selected, Jorge Lee, Terry Rhett, and Joe Diggs, per-
formed essential services that no other employee was ca-
pable of performing. Respondent also did not reduce the
hours of Daniel King or Joseph Silvagnoli, who as I
have found above were supervisory and managerial em-
ployees of Respondent respectively.
As for Lee, Respondent's witnesses assert that his "es-
sential" and "unique" abilities included opening and clos-
ing the premises, picking up mail, and processing book-
keeping. These are hardly unique tasks or abilities, and I
note that Lee, who was not a card signer, and attended
the union meeting as a spy for Respondent, not only did
not have his hours reduced, but was permitted to work
overtime during the "alleged" financial crisis of the re-
duction, and in fact had his overtime hours increased
during these hours.
Joseph Diggs, another noncard signer and nonattendee
of the union meetings, was allegedly not reduced because
he worked on the Department of Real Property Account
for New York City. However the record reveals that
Respondent received only approximately $1000 from this
account during the previous 6- to 9-month period ending
February 1985. Moreover Bernard Gelb's own testimony
established that Daniel King, was also familiar with this
Real Property Account, and this factor was given by
Gelb as a reason for retaining King in full-time status.
Finally, Judith Gelb testified that Terry Rhett, who
also neither signed a card nor attended a union meeting,
did not have her hours cut because of her unique typing
and dictation skills. However the record reveals that
Marilyn Nosel who did attend the 28 February union
meeting, and did have her hours reduced, performed the
same exact work as Terry Rhett.
Accordingly, based on the above analysis, I am not
persuaded that Respondent has met its burden of proof
of establishing that it would have reduced the hours of
its employees absent their union activities.
I am convinced that its decision was motivated by the
pendency of the union meeting on 12 March, and by a
desire on the part of Respondent to retaliate against and
punish employees for their support of the Union. There-
fore, Respondent has violated Section 8(a)(1) and (3) of
the Act.116
6. The subcontracting
It is undisputed that as a result of the reduction in
hours, Respondent accumulated a large backlog of data
entry work. Shortly after the employees were restored to
their full-time status, the backlog was still prominent.
Accordingly, it was necessary for Respondent to subcon-
tract one medical records job normally performed by
unit employees, to Anna Data, a company previously
utilized by Respondent for other subcontracting.
The General Counsel argues that because the subcon-
tracting was admittedly a by-product of the discriminato-
ry reduction in hours, that the subcontracting should also
be considered unlawful. I find this bootstrap argument to
be unpersuasive.
Although I have found above that the reduction in
hours was unlawful, I do not believe that an automatic
finding that the resulting subcontracting is also discrimi-
natory is warranted.
I will issue an appropriate remedy to rectify the un-
lawful reduction and, in my view, the subcontracting
must be judged separately regarding its discriminatory
motivation.
I conclude that the decision to subcontract by Re-
spondent was motivated solely by the desire of Respond-
ent to cut down on its backlog and get out the work to
its customers in a timely fashion.
The General Counsel's argument that Respondent
failed to explain why it did not clear the backlog by re-
hiring Joy Scott or assigning overtime to other employ-
ees is misplaced. I have already found the discharge and
refusal to reinstate Scott and the reduction of overtime
16 I do not include the reduction m hours of David Arguelles in this
finding. As noted above and below, his situation with regard to the cut in
hours differed from that of other employees, and my conclusions with re-
spect to Arguelles will be discussed infra.
1272 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
for data entry employees to be unlawful, and shall again
appropriately remedy these violations. These findings
again do not render the subcontracting unlawful. The
General Counsel's argument would be analogous to find-
ing that the hiring of a replacement for a discriminatorily
discharged employee constitutes a separate violation in
and of itself.
The General Counsel argues that the fact that when
the work was returned to Respondent from Arma Data,
Saffern ran the program at night on the computer, rather
than assigning it to Beradino the next day, demonstrates
Respondent's attempt to conceal its unlawful action.
I fmd, contrary to the General Counsel, that Saffern's
testimony that he was anxious to get the work out as
soon as possible to the customer, constitutes a credible
and adequate explanation for this conduct. Moreover, in
my view even if this action can be construed as an at-
tempt to conceal the subcontracting from employees, I
do not believe that it necessarily establishes discriminato-
ry intent. Indeed to the contrary, if Respondent's motiva-
tion in subcontracting the work was to retaliate against
employees for their union activities, it would seem to me
that it would want employees to know about the subcon-
tracting, rather than to conceal same from them.
Accordingly, based on the above, I shall recommend
dismissal of this allegation in the complaint.
7. The alleged discrimination against Valentine
The record reveals that Valentine owed Respondent
$96 as a result of her failure to reimburse Respondent for
jury duty money that she received from the State for
jury duty served by her in January 1984.
I reject and do not credit Valentine's testimony that
Respondent had previously taken away two of her vaca-
tion days to make up for the jury duty pay.In fact Valen-
tine's own testimony, even if believed, does not establish
this fact, but only that at the time Valentine asked about
vacation days, Judith Gelb told her that she was not en-
titled to any more, while reminding her of her jury duty
time off. At no time did Gelb ever tell Valentine that
Respondent was using her vacation days to make up for
the jury duty fees that she agreed to pay to Respondent
when she received it.
I also do not believe that Valentine thought that her
jury duty pay obligation was taken care of, as she con-
tends, because she did not mention this alleged belief
when asked about the payment by Gelb in March. It
seems to me that had Respondent substituted Valentine's
vacation days for her jury duty obligations, or even if
Valentine believed this to be the case, she would have
said something to this effect when Gelb inquired about
the matter.
Valentine's failure to do so, convinces me, and I fmd,
that Valentine simply had neglected to repay the money
to Respondent as she had agreed on.
Gelb's explanation for asking Valentine for the money
on 4 March appears to be credible, in view of Respond-
ent's admitted fmancial cash flow problems at the time.
Moreover, I note that Gelb did discuss the matter with
Valentine, asked her if she wanted the moneys deducted
in three equal installments or all at once, and complied
with Valentine's request for the former option, and de-
ducted the amounts due immediately thereafter. Such so-
licitation of Valentine's wishes on the manner of repay-
ment, is not the type of conduct that it appears to me
that Respondent would engage in, had it intended to re-
taliate against Valentine for her union activities;
Based on all the above circumstances, and notwith-
standing Respondent's other violations found, including
some specifically directed toward Valentine, I fmd insuf-
ficient evidence in the record to conclude that its actions
in regard to requiring Valentine to satisfy her jury duty
obligations to it, has violated the Act. I shall therefore
recommend dismissal of this allegation in the complaint.
The complaint also alleges that Respondent violated
the Act by docking Valentine for lateness at various
times between March and June.
In this connection Valentine testified that prior to 28
February, she was not docked for lateness up to 15 min-
utes in duration, but that after that date she would be
docked for any minutes that she was late.
However, the overwhelming record evidence herein
contradicts Valentine's testimony in this regard, and I do
not credit Valentine on this issue. Thus, the testimony of
Judith Gelb, supported by the testimony of other em-
ployees, including Lopez and Wilson, plus Respondent's
records, establishes that Respondent's policy in this
regard has not changed. This policy with respect to
docking for lateness both before and after 28 February,
has been to automatically dock employees for lateness
for any minutes that they come in late. However, em-
ployees are given the opportunity to make up the time
lost at the end of the day. If employees choose this
option, then they are not docked for the lateness.
In view of the above finding, the General Counsel has
not established that Respondent instituted any changes in
its policy with regard to docking for lateness of Valen-
tine or any other employee. Its docking of Valentine for
lateness in the months of March through June was there-
fore consistent with its established policy, and cannot be
found to be violative of the Act. This allegation must ac-
cordingly be dismissed. I so find.
8. The alleged discrimination against Burgos
Burgos, as noted, was out on bereavement leave on 28
February when the Union made its appearance. When he
returned to work on 4 March, Silvagnoli informed
Burgos about the organizational drive, and warned him
in violation of Section 8(a)(1) of the Act not to get in-
volved with the Union.
However, Burgos disregarded Silvagnoli's unlawful in-
structions by signing an authorization card on 11 March
and attending the union meeting on 12 March. This
meeting was also attended by Silvagnoli, and was the
meeting that Silvagnoli was ejected from because of his
management status.
The very next day, when Burgos reported to work, he
found his uncompleted tax return on his desk, put there
by Silvagnoli. When Burgos asked Silvagnoli why he
had not completed the return as he had promised to do,
Silvagnoli replied that it was because Burgos attended
the union meeting.
EDP MEDICAL COMPUTER SYSTEMS

1273
There is little doubt from the above recitation of facts
that Silvagnoli refused to prepare Burgos' tax return as
promised because of Burgos' union activities. This find-
ing however, is not dispositive of whether such action by
Silvagnoli is violative of the Act. In order for such find-
ing to be made, it is necessary for the General Counsel
to show that the preparation of tax returns for employees
had become a "term or condition of employment."
The evidence in this record, that Silvagnoli prepared
Burgos' return for him on two prior occasions, and that
he helped an undisclosed number of employees with
their returns in the past, is insufficient in my view to
meet the General Counsel's burden in this regard.
In fact, Burgos himself admitted that he considered
Silvagnoli's preparing his tax return to be a "personal
favor" to him "not connected with work at all."
In these circumstances, I conclude that it has not been
established that the preparation of tax returns by Silvag-
noli can be construed as a term or condition of employ-
ment for employees of Respondent. Therefore, I shall
recommend dismissal of this allegation in the complaint.
Cf. Benchmark Industries, 270 NLRB 22 (1984).
The complaint also alleges that Respondent violated
the Act by deducting $75 from Burgos' salary without
his consent during the payroll weeks 27 April through 11
May. In this connection the record revealed that Burgos
was granted a $200 loan from Respondent on 28 Febru-
ary, without any discussion about repayments.
On 4 March when he returned to work and as noted
was warned by Silvagnoli not to become involved with
the Union, he also repaid $125 of the $200 loan to Judith
Gelb. Once again nothing was said to Burgos at that
time about when and how the remaining $75 was to be
repaid.
Notwithstanding the instructions of Silvagnoli as de-
tailed above, not to become involved with the Union,
Burgos signed a card on 11 March and attended the 12
March union meeting. Additionally, Burgos attended the
representation case hearings at the end of March as a
union supporter.
When he received his payroll slip for the week ending
26 April, Burgos noticed a $25 garnishment for this loan.
Burgos complained to Bernard Gelb about the deduction
without his consent, and reminded Gelb that he had
always paid back loans in the past. Gelb replied that he
was "tired of waiting for the money."
Moreover, the record also reveals that Burgos had
taken out two prior loans from Respondent, before the
Union's appearance, and was given many months to
repay the money including several extensions While a
deduction from his salary was made for the second loan,
this was done with Burgos' consent and after discussion
with him.
Based on the above circumstances, more specifically
the facts that (1) Burgos was granted the loan on 28 Feb-
ruary and paid back part of it on 4 March without any
discussion about repayment, at the time he was warned
about union involvement; (2) Burgos disobeyed Silvagno-
li's unlawful instructions and shortly thereafter signed a
union card, attended a union meeting, and appeared at
the representation case hearing as a union supporter; (3)
the deduction from his salary was made on 26 April
without his consent, contrary to Respondent's past prac-
tice of permitting him to repay loans when he was able
and deducting from his salary only after discussions with
Burgos; (4) Respondent's numerous other violations de-
scribed above including a threat to eliminate loans be-
cause of the Union; I find that the General Counsel has
established that a motivating factor in Respondent's deci-
sion to deduct money from Burgos' salary on 26 April
thereby in effect "calling in" the loan prematurely, was
Burgos' union activity.
Turning now to Respondent's burden of establishing
that it would have taken the same action, absent such
union activity, once again I am not persuaded that it has
done so.
The only testimony offered by Respondent relative to
this subject was given by Judith Gelb. She asserted that
due to Respondent's "fmancial" crisis in February and
March, she was instructed by Bernard Gelb to collect on
all outstanding loans, and that Burgos' loan was "called
in" along with the loans of Weimert and Haynes. How-
ever, Gelb's testimony in this regard is not substantiated
by the record.
Initially, it must be emphasized that the loan itself was
given to Burgos on 28 February at the height of the al-
leged "fmancial" crisis. Moreover, the loan to Haynes
was approved in March, also while Respondent's finan-
cial problems were still prominent.
Thus Gelb's testimony that its financial difficulties mo-
tivated the "calling in" of Burgos' loan is highly suspect,
particularly since on 26 April when the deduction from
Burgos' salary was made, its cash flow problems had
been alleviated for over a month by the receipt of ECB's
payment of over $143,000.
Haynes' testimony also refutes Respondent's alleged
defense because his loan was approved by Respondent
only after and because the Union was not "formed" at
the 12 March union meeting as feared by Bernard Gelb,
and his repayment plan and the deduction from his salary
was agreed on at the time. Thus it is clear that financial
constraints of Respondent had no bearing on its actions
with regard to the loans made to employees, or its ac-
tions to collect the accounts due.
Accordingly, I conclude that Respondent has violated
Section 8(a)(1) and (3) of the Act by its conduct of "call-
ing in" Burgos' loan and deducting the moneys from his
salary without his consent Laird Printing, 264 NLRB
369, 376 (1982); Massey Stores, 245 NLRB 1077 (1979),
enfd. 631 F.2d 328, 331 (4th Cir. 1980).117
Li? General Counsel also alleges that this action of Respondent
violated Sec 8(a)(4) of the Act because it was motivated in part by his
attendance at the representation hearing. However, I find the record is
bereft of any evidence that Burgos' attendance at the hearing had any
bearing on Respondent's actions G. E Putnam Sons, Inc., 226 NLRB
1256, 1263 (1976). The mere proximity in time between his attendance at
the hearings and Respondent's conduct is insufficient to demonstrate such
a connection. St. Jude Industrial Park, 265 NLRB 597, 601 (1982); Ad Art,
238 NLRB 1124, 1132 (1978). I note that the record contains no evidence
of animus directed towards Burgos based on his attendance at the hear-
ings.
I shall therefore recommend dismissal of the 8(a)(4) allegation in the
complaint with respect to Burgos.
1274 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
On 25 July Burgos received a written warning for
lateness, setting forth that his lateness has become unac-
ceptable and threatening termination if such lateness con-
tinued. I conclude that the General Counsel has estab-
lished a prima facie case that this warning was motivated
by Burgos' union activity. I rely on the above-cited evi-
dence concerning the loan reduction and the reasons set
forth therein, plus the additional evidence concerning the
events of 6 June, the day of the election. On that day
Burgos was subject to two unlawful attempts by Silvag-
noli and Haynes, acting as agents for Respondent, to per-
suade him not to vote by promising him benefits, includ-
ing a raise.
Once again Burgos disregarded Respondent's en-
treaties to refrain from engaging in union activities, and
not only voted in the election, but acted as the union ob-
server therein. Moreover, I also rely on Bernard Gelb's
threat to crack down on lateness if the Union comes in.
Having found that the warning to Burgos was motivat-
ed by his union activity, it again becomes necessary to
determine if Respondent has proven that it would have
taken the same action, absent such activity.
In this connection, Respondent has offered absolutely
no testimony or other evidence why or how it decided
to issue the written warning to Burgos. While the warn-
ing letter itself does indicate that Burgos was late 18
days out of 39, the record also reveals that Earl Haynes
had a far worse lateness record during the same period
of time and thereafter, and was not given any written
warnings at any time. Haynes, as noted above, was a wit-
ness for the Respondent in this proceeding, and more im-
portantly acted as Respondent's agent in transmitting
Bernard Gelb's unlawful promises of benefit to attempt
to unsuccessfully induce both Wilson and Burgos not to
vote in the union election.
Accordingly, Respondent failed to meet its burden of
proof with respect to Burgos' written warning and its
conduct is therefore violative of Section 8(a)(1) and (3)
of the Act. I so find.
9. The alleged constructive discharge of Smith and
the refusal to allow Smith and Lopez to rescind
their resignations
I have found above that Smith, one of the early card
signers and supporters of the Union, suffered unlawful
discrimination (along with Beradino and Valentine) by
the virtual elimination of her overtime and by the reduc-
tion of her hours.
During the second week of the reduction in hours, she
was offered a job at Chemical Bank, but presumably re-
lying on Respondent's initial announcement that the re-
duction in hours would last only two weeks, did not
accept the offer at that time.
During the next week, with the reduction in hours still
in effect, and no sign when it would clearly end, Smith
accepted the offer of a new job with Chemical Bank on
the night shift.
Smith notified Judith Gelb on 3 April, after being re-
turned to full-time status, that she had an offer of a
better job at Chemical Bank, and asked Gelb if she could
continue to work full time for Respondent. Gelb replied
that there was no one working part time for Respondent
at the time, 118 but she would think about the request.
At the same time, however, Gelb instructed Smith to
submit a written resignation as per company policy.
Smith complied with Gelb's instructions and submitted
the written resignation.
A constructive discharge is established if the General
Counsel proves that a respondent discriminatorily im-
poses changes in unlawful working conditions on em-
ployees that cause and are intended to cause the employ-
ees to quit, and that such changes are so difficult or un-
pleasant so as to force employees to resign. K & S Cir-
cuits, 255 NLRB 127 (1981); Master Security Services, 270
NLRB 543, 553 (1984).
In the instant case there is no question but that Re-
spondent's actions in cutting Smith's working hours in
half and the elimination of overtime for her are more
than sufficient to satisfy the requirement of unlawful
changes in working conditions, that are sufficiently diffi-
cult or unpleasant so as to force employees to resign.
City Service Insulation Co., 266 NLRB 654, 659 (1983);
Sullivan Transfer Co., 247 NLRB 772, 775 (1980).
A more difficult question arises, however, with respect
to the other element of a constructive discharge, that of
establishing that the unlawful changes actually "caused"
Smith to resign her position at Respondent. In this con-
nection, Smith credibly testified that she would not have
accepted the job at Chemical Bank, had she not been on
part-time status. She similarly testified credibly that she
would not have accepted the Chemical Bank job had she
still been receiving her full overtime hours.
Respondent argues that no constructive discharge can
be found, because at the time Smith notified Respondent
of her decision to accept the Chemical Bank position, she
had already been returned to full-time status. It is also
noted that when Smith informed Gelb of her decision to
leave, she mentioned that she had obtained a "better job"
at Chemical.
Taking the latter factor first, the Board has not
deemed controlling that employees failed or chose not to
inform employers that they were quitting because of dis-
criminatory working conditions imposed on them.
In K & S Circuits, supra, the Board reversed an admin-
istrative law judge who had failed to find a constructive
discharge, principally because of the failure of the em-
ployees involved to so inform the employer. The em-
ployees there, as in Smith's case, gave the employer dif-
ferent reasons for quitting.119
Notwithstanding these facts, the Board accepted the
credible testimony of the employees that they left their
employment because of the unlawful conditions forced
on them, "regardless of the fact that they failed or chose
not to inform Respondent of the reason," supra at 1270.
The Board looked to all the underlying circumstances
in the situation to come to such a conclusion. I have
1.0 In fact the record reveals that Arguelles was still working part
time for Respondent, and that Roth had recently been switched from
part- to full-time status.
l !' 9 One employee told the employer and put in writing that she was
quitting to go on vacation, and the other employee informed the employ-
er that she quit in order to stay home.
EDP MEDICAL COMPUTER SYSTEMS

1275
done the same, and have reached a similar conclusion
with respect to Smith.
Her testimony that she was "confused" when she noti-
fied Respondent of her decision to quit is credited and
amply supported by the record. I find that such confu-
sion was caused principally by Respondent's unlawful ac-
tions, and that it must bear the burden of any ambiguity
in Smith's mind for which it was responsible. Smith had
been offered the position at Chemical Bank during the
second week of the unlawful reduction in hours, which
she had been informed by Respondent was going to be
the last week of such part time status. However, Re-
spondent extended the unlawful reduction for another
week after, as I have found above, its fmancial crisis had
abated.
It was during this further extension of the reduction
that Smith accepted the job at Chemical. While during
the next week Smith was returned to full-time status, she
could not be sure how long this would continue, or
whether Respondent would be committing any more un-
lawful conduct I note that Bernard Gelb had threatened
employees that if the Union got in, he would cut every-
one's hours in half, and hire new employees for the dif-
ference.
Moreover, Respondent had already unlawfully termi-
nated union adherents (Shaw and Scott), and committed
numerous other violations in a 1-month period from the
appearance of the Union to Smith's resignation. Indeed,
the record also reveals that Respondent's intent to cause
Smith to quit is clearly established by its subsequent con-
duct with respect to Beradino and Valentine.
In May Bernard Gelb spoke to both of them, who
were, as noted, subject to the identical discriminatory
conduct suffered by Smith, i.e., elimination of overtime
and reduction in hours. Gelb told Beradino and Valen-
tine that because of their union activities, they should be
looking for another job, and promised that if they did so,
he would give them a good recommendation, as it did
with Smith. (Emphasis supplied.) If not, Gelb would
notify prospective employers of their union activity and
ensure their inability to obtain other work.
It is thus clear and I find that Respondent's conduct
with regard to Smith was part of its pattern of attempt-
ing to rid itself of as many union adherents as it could.
Finally, and perhaps most significantly, Smith's over-
time hours had not been restored, even when she an-
nounced her decision to leave to Respondent The
record reveals that Smith was averaging over 10 hours
of overtime per week. Multiplying her hourly salary of
$6.428 by 10 hours at time and a half, reveals nearly $100
a week of overtime pay that Respondent unlawfully de-
prived Smith of earning.
Thus when one adds that figure to her $225 base
salary, this amount exceeds the $282.50 that she was to
receive at Chemical Bank for work on the night shift.
Accordingly, I conclude that the Chemical Bank position
was not and would not have been a "better job" for
Smith, had Respondent not discriminated against her as
set forth herein.120
120 I also note in this connection that this Chemical Bank job was on
the night shift.
Accordingly, based on all the circumstances, I fmd
that Smith resigned from Respondent because of the dis-
criminatory treatment accorded her, and was construc-
tively discharged by Respondent in violation of Section
8(a)(1) and (3) of the Act K & S Circuits, supra at 1271;
Master Security, supra at 553.
Approximately a week after she submitted her resigna-
tion, but while she was still employed by Respondent,
Smith had a change of heart On 11 April she told Judith
Gelb that she changed her mind about the Chemical
Bank job because she felt it was dangerous to travel at
night, and requested to continue working for Respond-
ent
Gelb denied Smith's request and informed her that her
name was already off the payroll, and that Respondent
had hired someone to replace her. In fact Respondent
had not hired anyone to replace Smith and did not do so
at that time.
The evidence cited above with regard to Respondent's
prior conduct toward Smith, as well as other employees,
coupled with Gelb's false statement to Smith that she
had been replaced, is more than sufficient to establish
that Smith's protected conduct was a motivating factor
in Respondent's decision not to allow her to rescind her
resignation.
As for Respondent's burden of proving that it would
have taken the same action absent Smith's union activi-
ties, it presented mutually corroborative testimony of the
Gelbs. The Gelbs contended that Respondent was
merely following its well-established policy of not per-
mitting employees who leave for another job or because
they are "unhappy" to be rehired. I reject and do not
credit this testimony as contrived and unpersuasive.
Initially no one could recall when or by whom this al-
leged policy was formulated. Second, Judith Gelb could
not recall any other employees where this policy was ap-
plied, with the exception of Lopez. Bernard Gelb did
testify that he remembered two other employees where
Respondent did not rehire employees who left. Howev-
er, he admitted that he did not recall if there was an
opening at Respondent at the time of the request for
rehire by these employees. Moreover, Gelb admitted that
these employees had been out of work for 6 months to a
year from Respondent when they reapplied. Thus even if
I were to credit Bernard Gelb's testimony, which I do
not, these cases are not comparable to Smith.
Smith was still employed by Respondent at the time
that she requested that her resignation be rescinded, and
Respondent was still in the midst of reducing the back-
log of orders resulting from the reduction in hours. I
note that it was forced to subcontract work during this
period of time, and discharged Scott. Thus it is clear that
Respondent was in need of Smith's services at the time.
Indeed, Judith Gelb informed Smith that she had al-
ready been replaced by Respondent This false statement
of Gelb militates strongly against any reliance by Re-
spondent on an alleged policy of not rehiring unhappy
employees as justifying its actions.
More to the point in connection with establishing Re-
spondent's policies is its conduct toward employees
Lynda Jackson and Robert Roth. The way it handled
1276 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Jackson's request for rehire in January 1985 was, in my
view, more illustrative of how Respondent handles re-
quests for reinstatement. Jackson asked for her job back,
some months after leaving to settle some divorce prob-
lems, and Respondent after inquiring about her abilities
and the need for employees, agreed to and did rehire
her.
As for Robert Roth, he on two prior occasions re-
duced his status from full to part time, in order to accept
other positions. On two subsequent occasions Respond-
ent permitted him to return to full-time status. Judith
Gelb's attempt to distinguish Roth's cases from Respond-
ent's policy of not rehiring "unhappy" employees, by
stating that Roth was not unhappy but merely "wanted
more money" is simply untenable.
Rather, I believe that Respondent's real policy is ex-
emplified by Judith Gelb's startling admission that she
considered Smith to be "unhappy" with the Company
because she saw Smith at the hearing sitting with the
union supporters. Thus I conclude that Respondent se-
lectively applied its alleged policy of refusing to permit
"unhappy" employees to be rehired to Smith whose "un-
happiness" Respondent viewed as stemming from her
support for the Union. Therefore Respondent has not
met its burden of establishing that it would have taken
the same action with respect to Smith absent her union
activity, and it has violated Section 8(a)(1), (3), 121 and
(4) of the Act.122
As for Megaly Lopez, I have found above that she, a
leading union adherent, and early card signer, also was
one of the employees who appeared in the Union's leaf-
let, with a statement supporting the Union in the forth-
coming election. On the day that the leaflet was distrib-
uted, Judith Gelb sarcastically commented on the "beau-
tiful letter" that Lopez had written and threatened to fire
her in violation of the Act. In response to this unlawful
threat, Lopez responded that if the Union loses, she did
not want to work for Respondent anymore.
On 6 June, as set forth above, the Union lost the elec-
tion. On 7 June, Lopez called Gelb and informed her
that she was quitting. Gelb asked Lopez to send in a
written letter of resignation and she would send a check.
The next working day, 10 June, Lopez came to Re-
spondent's premises and advised Gelb that she changed
her mind and wanted her job back. Gelb at first indicat-
ed that her resignation was already approved, but after
Lopez persisted, agreed to discuss the matter with Re-
spondent's other officials.
Some 8 days later, after Lopez had made a number of
unsuccessful attempts to obtain an answer to her request,
Judith Gelb denied Lopez the right to 'rescind her resig-
nation, claiming that Respondent did not want "unhap-
py" employees working for them.
121 Heritage Nursing Home, 269 NLRB 230, 234 (1969); Taft Broadcast-
ing Co., 238 NLRB 588, 593 (1978).
122 The 8(aX4) allegation is established by virtue of the aforemen-
tioned admission by Gelb that she considered Smith to be unhappy be-
cause of her attendance at the R case hearing. This establishes sufficient
animus towards Smith's activity in connection with Board proceedings,
to warrant an 8(a)(4) finding. Cf Quality Millwork Corp., 276 NLRB 591
(1985); Heritage Nursing, supra at 234.
Once again I am persuaded that the General Counsel
has established that a motivating factor in Respondent's
decision to refuse to allow Lopez to rescind her resigna-
tion was her union activities. I rely on in this regard, Re-
spondent's numerous other unfair labor practices found
above, particularly the unlawful threat directed to
Lopez, and its similar unlawful conduct with regard to
Smith. In Lopez' case the prima facie case is even
stronger, because Lopez had not even submitted a writ-
ten resignation as required by Respondent's policy.
As for Respondent's burden of establishing that it
would have taken the same action against Lopez absent
her union activities, it again relies on its alleged policy
against rehiring employees who leave for another job or
who are "unhappy."
I rejected that defense with respect to Smith, and I
similarly conclude with respect to Lopez. In Lopez' case
I also note that unlike Smith, she never accepted another
position, and that her "unhappiness" with Respondent
was admittedly due solely to her support for the Union
and her unhappiness with the election results. Moreover,
I note that Respondent took 8 days to deny Lopez' re-
quest to be rehired. No explanation was offered by any
of Respondent's witnesses about why it took so long to
make such a decision, in view of its professed reliance on
an allegedly firmly established policy against rehiring
"unhappy" employees.
Once again, as in the case of Smith, Respondent has
not met its burden of establishing that it would have
denied the request of Lopez to rescind her resignation,
absent her union activity. Once again I conclude that Re-
spondent's reliance on Lopez' unhappiness stemmed
solely from its connection to her union activities, and
that its action in denying her the right to be rehired, vio-
lated Section 8(a)(1) and (3) of the Act. Heritage Nursing,
supra; Taft Broadcasting, supra.
10. The alleged discriminatory treatment of
Beradino
As found above Beradino, one of the key leading
union supporters, was discriminatorily deprived of her
overtime, and was the subject of numerous 8(a)(1) inter-
rogations and threats including a suggestion by Gelb that
she look for another job.
The complaint also alleges that Respondent discrimi-
nated against Beradino in various other ways, which I
shall now proceed to consider.
The record reveals that Beradino was hired as a com-
puter operator, which is a more highly skilled and highly
paid position than keypunching. However, at various
times prior to the Union's appearance, Beradino was
asked to and did agree to perform keypunching work on
a temporary basis. She began to complain about it in
1984, and another employee was hired to perform the
work, so Beradino's assignments in the area ended.
Shortly after Beradino returned to work from being
out on disability in January 1985, that employee left, and
Beradino was once again asked to help out and do key-
punching by Saffern on a temporary basis. She agreed
because Saffern promised that a new employee would be
hired shortly.
EDP MEDICAL COMPUTER SYSTEMS 1277
However, a new employee was not hired, and Bera-
dino's keypunch assignments increased. After Beradino's
overtime was curtailed in March, the percentage of her
time spent on keypunching expanded. During the next
month, keypunch employees Smith and Scott were dis-
criminatorily terminated, thereby again increasing the
keypunch assignments for Beradino, to the extent that
some of her days were spent entirely performing such
work.
Her complaints about being given these assignments
began to increase in intensity and frequency, and she told
Saffern on many occasions that this work was causing
her headaches and problems with her eyes.
These complaints went unheeded, and finally at one
point in May, Beradino threatened to refuse to perform
any more keypunch work because of these headaches.
She was then called into Bernard Gelb's office, and told
that "as long as the Union is here, you've got to do ex-
actly as you're doing, and continue to punch." Beradino
continued to complain about the assignments and remind-
ed Gelb of Respondent's promise that the assignment
would only be temporary. Gelb warned Beradino that if
she did not perform the keypunching work, she would
be fired.
Her keypunch assignments continued and Beradino
performed the work when asked. After the election re-
sults were announced, Saffern told Beradino "let's forget
about everything that happened and punching will be
taken away from you and let bygones be bygones."
About a month later, a new employee was hired and
Beradino was relieved from keypunching duties.
The above facts establish in my view that the General
Counsel has shown that the decision to continue to
assign Beradino to keypunch functions over her vocifer-
ous objection, and contrary to Respondent's promises
that such assignments would be temporary, was motivat-
ed by her union activities. In this connection, I rely par-
ticularly on the statements of Bernard Gelb that she must
continue to perform this work "as long as the Union is
here," and Saffern's comments after the Union lost the
election, that Respondent would let bygones be bygones,
and take away keypunch work from her.
Respondent contends and the record supports the fact
that Beradino had been assigned keypunch work before
the appearance of the Union and had performed such
work, albeit making complaints about it, during these pe-
riods. It contends simply that Beradino's assignments
continued because it had not hired any new employees
and that when it finally did so the work was taken away
from her.
However, I note that never before had Beradino been
assigned such work for such a prolonged period of time,
and in such large amounts. The fact that she was given
such assignments in the past is not controlling there-
fore, 123 and the remarks of Gelb and Saffern cited above
cannot be readily ignored. These statements plus Re-
spondent's other animus directed towards Beradino, par-
ticularly its suggestion that she quit convince me that it
intentionally did not hire any new employee, in order to
128 Production Stamping, 239 NLRB 1183, 1187 (1979).
continue these assignments to Beradino, in the hope that
she would leave on her own accord.124
Therefore, Respondent has not persuaded me that it
would have continued these assignments to Beradino,
absent her union activities. Accordingly, it has violated
Section 8(a)(1) and (3) of the Act by such conduct.
When Beradino returned from her vacation in late
July, she received a letter from Judith Gelb explaining
that she was not entitled to any vacation pay, but Re-
spondent was giving it to her anyway. However, Re-
spondent was loaning her $360 and using her one remain-
ing sick day to make up her vacation pay. The General
Counsel argues that because Beradino had received per-
mission from Judith Gelb to take her vacation prior to
her leaving and was not told about the arrangement to
loan her money for the vacation, that Respondent's ac-
tions in this regard was another instance of its campaign
of harrassment of Beradino in violation of the Act.
In this instance I do not believe that the General
Counsel has met its burden of proof. The General Coun-
sel overlooks the fact that Beradino was not entitled to
any vacation as of July 1985, and that Gelb permitted
her to take the time only on Beradino's agreement to use
her sick days instead of vacation.125
Yet between the time that Beradino and Gelb agreed
to this arrangement and the date that Beradino left for
vacation, she used 4 of her sick days that were to be
used as a substitute for her vacation days.
I credit the unrefuted and convincing testimony of
Judith Gelb that Respondent was afraid that Beradino
might file a charge if it took away her previously sched-
uled vacation, and that it therefore decided to allow her
to go, but to loan her the money for 4 days of the vaca-
tion, while using her 1 remaining sick day for the final
day. I not that as of October, Beradino's anniversary
date, she would be entitled to the time, and the loan
would be wiped out.
In these circumstances, I find that Respondent's con-
duct was not violative of the Act, and I shall recom-
mend dismissal of this allegation in the complaint.
Finally, the complaint alleges and the General Counsel
contends that Respondent's action in transferring Bera-
dino (along with Arguelles) to night-shift hours on 12
August was violative of Section 8(a)(1) and (3) of the
Act.
The General Counsel emphasizes the tmcontradicted
testimony of Lee that she heard Bernard Gelb admit that
Arguelles and Beradino were so transferred "to let them
know that they were no longer needed by EDP." This
remark does raise suspicions about Respondent's con-
duct, and coupled with Respondent's other violations in-
cluding other unlawful attempts to persuade Beradino to
resign is sufficient to meet the General Counsel's burden
124 In Production Stamping, supra, the employee who was unlawfully
assigned such work, did m fact quit, and was found to have been con-
structively discharged.
125 The General ConnsPl's claim that the vacation of employees after 1
year accrues on a pro rata basis is not supported by the record.
1278 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
of establishing that the transfer was motivated by unlaw-
ful considerations.' 2 6
However, I am persuaded that in the instance Re-
spondent has met its burden of establishing that it would
have taken the same action absent the union activity in-
volved.
The unrefuted and corroborative testimony of various
witnesses established that Respondent's mode of oper-
ation caused conflicts between the computer operators
and programers over use of the computer, and was con-
trary to established industry practice.127
Additionally, the record reveals that Respondent
wished to monitor more closely the work of Bill Mosely,
the programer, whose salary is more than double the
salary of Beradino's. Respondent also discussed the pro-
posed changes with Beradino in July and again in
August prior to its implementation. While Beradino did
express some reservations about the efficiency of the
move, she did not raise any vociferous objections to the
changes. In fact most of the discussions revolved around
whether a shift differential would be included (a 10-per-
cent differential was agreed on), and what Beradino's
actual hours of work would be. In this connection, the
fmal choice of 11 p.m. to 7 a.m. was agreed on and in
fact suggested by Beradino.
Two weeks after the initial change, Beradino com-
plained to Simanowitz about the hours because of her
fear of working alone. Simanowitz accommodated Bera-
dino's request, and switched her hours to 7 p.m. to 2:30
a.m.
Thus Respondent's actions in accommodating Bora-
dino's requests for a night differential and for changes in
her specific hours worked, detract substantially from any
inference that Respondent's shift change was intended to
force her to quit.
The General Counsel stresses that Respondent did not
transfer Mosely to the day shift immediately, and argues
that this demonstrates the pretextual nature of Respond-
ent's defense. I do not agree.
Mosely was eventually switched permanently to the
day shift in October, and the testimony of Simanowitz,
which I credit, stands unrebutted, that this change was
delayed because of Mosely's problems with obtaining a
babysitter for his child.
Based on all the above circumstances, I am satisfied
that Respondent has demonstrated that it would have
made the shift changes of Beradino and Arguelles'28
128 I also note in this connection that these were specially created
shifts with no other employees present, which completely isolated Bera-
dino and Arguelles from contact with other unit employees.
1 127 In this connection even Beradmo admitted that there were con-
flicts between she and the programer, Mosely, over use of the computer.
Arguelles also confirmed that in his prior jobs, as well as his current one,
production work is usually performed in the evenings. Employee Roth
corroborated Respondent's officials as well, with respect to both the con-
tlict over use of the computer and industry practice.
128 Arguelles worked along with Beradmo on production and comput-
er operator work. His shift change was made in conjunction with the
above-described decision to change Respondent's operating procedures. I
note in this regard that when Arguelles was hired he was told that he
would hopefully be transferred to the night shift, and that Arguelles was
agreeable to working that shift.
based on nondiscriminatory business reasons, absent the
union activities of these employees. I shall therefore rec-
ommend dismissal of this allegation in the complaint.
11. The alleged discrimination against Arguelles
The complaint alleges and the General Counsel con-
tends that Respondent discriminated against Arguelles by
reducing his hours, failing to restore such hours when
the hours of the other employees were restored, and by
extending his probationary period.
Arguelles attended union meetings on 28 February and
12 March, signed a card on 28 February, and testified as
a union witness at the representation hearing.
As noted above, his hours were reduced in half along
with the other employees on 12 March, but they re-
mained that way even after the others were restored to
full-time status.
On 13 May, during Beradino's aforementioned discus-
sion with Bernard Gelb concerning the Union, she men-
tioned that she thought that it was unfair to keep Ar-
guelles working only 4 hours, particularly because his
wife was pregnant at the time. Bernard Gelb responded,
"Let's look at it this way, if you have a cancer, you
would remove it before it spreads and that's exactly
what I am doing."
This remark by Bernard Gelb, added to the evidence
of Arguelles' union activity and Respondent's other
unfair labor practices, suffices to meet the General Coun-
sel's initial burden of establishing discriminatory motiva-
tion on the part of Respondent in its treatment of Ar-
guelles.
The burden then shifts to Respondent to demonstrate
that it would have taken the same action against Ar-
guelles, absent his protected conduct. I find that Re-
spondent has met its burden of proof in this regard.
The evidence presented by Respondent, consisting of
virtually uncontradicted testimony of Simanowitz, Saf-
fern, and Bernard Gelb, supported by the testimony of
Robert Roth, and even to some extent Linda Beradino,
establishes to my satisfaction that Arguelles simply did
not make the progress in learning to run Respondent's
jobs that Respondent expected and was entitled to re-
ceive from an employee of his experience.
Thus Arguelles came to Respondent with 5 years of
experience, operating a computer similar to the machine
used by Respondent. He was hired by Respondent with
the understanding and anticipation that he would be able
to be transferred to a night shift, after trailing, and then
be able to independently run Respondent's jobs. It is ob-
vious from the record that Arguelles fell far short of
meeting the standard expected of him by Respondent.
He was hired on 8 February, and after a 5-week train-
ing period during which he was trained by Beradino, and
observed her performance of many of Respondent's jobs,
he was unable to master anything more than the simplest
of tasks.
In March Simanowitz and Saffern conferred concern-
ing Arguelles' status, and Simanowitz recommended Ar-
guelles' termination due to his inability to grasp the
work. Saffern disagreed contending that Arguelles was
capable of performing simple jobs, back up work and
EDP MEDICAL COMPUTER Symms 1279
"babysitting" the computer, and felt that Arguelles could
be useful on a part-time basis. Simanovvitz agreed to this
proposal, and this decision coincided with Respondent's
reducing the hours of others on 12 March. Thus Ar-
guelles was notified of the reduction of hours at the same
time, but was not told as were other employees, that he
would be returned to full-time status in 2 weeks.
Consequently, when Respondent's other employees
had their hours restored in late March and early April,
Arguelles remained working 4 hours per day.
His work abilities, however, did not improve thereaf-
ter, and his inability to master all but the simplest of jobs
continued. These problems were highlighted in May,
when he was given another week of full-time status to
try to learn Beradino's jobs, so that he could fill in for
her when she left for a scheduled operation. Fortunately
for Respondent, Beradino did not choose to have the op-
eration because Arguelles admitted to Respondent at that
time that he was incapable of filling in for Beradino.
fact when Simanowitz initially asked Arguelles if he
could fill in for Beradino, he said yes. But after Ar-
guelles checked with Beradino, he came back to Si-
manowitz and admitted that he did not know enough of
the jobs.
At that time Simanowitz asked Beradino to prepare a
list of all jobs run by Respondent. Beradino did so, and
Simanowitz then asked Arguelles to check off which
jobs he could perform. Arguelles checked off 5 to 6 jobs
out of over 40 on the list.
Accordingly, Simano witz decided to twice extend Ar-
guelles' probation due to his inability to progress in his
ability to learn Respondent's jobs.
Arguelles, as indicated, does not deny the above
events, but asserts that he was not given sufficient train-
ing by Respondent to enable him to perform these jobs
properly. I find this testimony of Arguelles to be uncon-
vincing.
Arguelles did receive 6 weeks of training while ob-
serving Beradino. He was an experienced computer oper-
ator and even Beradino, the General Counsel's witness,
admitted that an experienced computer operator should
be able to run any of Respondent's projects by simply
following the flowchart.
Additionally, Arguelles was unable to run two or
three jobs when asked to do so by Bernard Gelb, even
though Beradino had performed these very same jobs
while training Arguelles. Arguelles lamely explained to
Gelb that he must have been doing something else or in
the bathroom when Beradino was performing such work.
The record also discloses that Arguelles was even un-
familiar with the procedure for bringing up the comput-
er, and that Simanowitz had to find the instructions for
Arguelles in order to perform this rather basic and
simple task.
Finally, both employees Roth and Beradino com-
plained at various times to Simanowitz and Saffern that
Arguelles was not progressing as he should, was a slow
learner, and made mistakes. Roth in fact told Gelb and
Saffern that Arguelles was incompetent, had no incen-
tive, and that Roth did not think Arguelles was going to
work out.
Therefore based on Arguelles' continued inability to
perform up to expectations, Respondent's officials testi-
fied that they did not restore Arguelles' hours, and re-
fused his continued requests to be returned to full-time
status.
I am persuaded that Respondent has, based on the
above evidence, met its burden of establishing that it
would have taken the same personnel actions concerning
Arguelles, regardless of his protected activities.
I shall therefore recommend dismissal of the allega-
tions in the complaint, pertaining to the reduction of his
hours, the failure to restore the hours, and the extension
of his probationary period.
The complaint also alleges that Arguelles was con-
structively discharged by Respondent by 24 September.
Having found that Respondent has not committed any
unfair labor practices directed towards Arguelles, there
can be no basis for a constructive discharge fmding. I
shall therefore also recommend dismissal of this allega-
tion.129
12. The alleged discrimination against Wilson
Wilson was an early card signer for the Union, attend-
ed union meetings, and was one of the employees who
made a statement in the Union's leaflet supporting the
Union in the election, distributed on 5 June.
On that same day, Silvagnoli criticized Wilson for
writing in the union pamphlet, and unlawfully threatened
to blacklist him for this action. Later on that same day,
Respondent further violated the Act by Silvagnoli in-
structing Wilson to take an extra sick day and not show
up for the election the next day, and if so "everything
would be forgotten."
Earl Haynes, acting as agent for Respondent, and Ber-
nard Gelb himself, confirmed this arrangement before
Wilson left work on 5 June.
However, Wilson disobeyed and disregarded these un-
lawful instructions and promises of Respondent and came
to work on 6 June. When Bernard Gelb saw that Wilson
had arrived at work, he became so enraged that he
punched a hole in the wall, and told Haynes that Wilson
had "stabbed him in the back."
The above facts represent compelling evidence of
animus towards Wilson, sufficient to justify a fmding that
a motivating factor in Respondent's actions in relieving
him from messenger work, and assigning him to work on
the compactor without a helper, both after 6 June as
well as terminating him on 3 July, were motivated by his
union activities.
As for the elimination of the messenger assignments,
and the assigning Wilson compactor work without assist-
ance, contrary to past practice, Respondent offered no
testimony or explanation as to why it took these actions.
Insofar as the messenger work is concerned, a possible
explanation is suggested by the record, in that Wilson
had been arrested on 3 June while performing messenger
129 / therefore need not resolve the troublesome credibility problems
presented by the fact that Arguelles gave two different versions of when
and how he accepted his new position and Arguelles' explanation about
why he failed to be candid with Respondent about his employment
status.
1280 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
work, for fare beating and possession of marijuana. On
the next day he was criticized by Gelb for this conduct,
and told that if it happened again, Wilson would be ter-
minated. However, the very next day, 5 June, Wilson
was given another messenger assignment to perform. I
note that 5 June was the fateful day before the election
described above, wherein Wilson was promised benefits
and instructed not to come to vote the next day. Thus
any inference that Wilson's arrest might have motivated
the removal of his messenger duties is dissipated by Re-
spondent's assigning him such work, after the incident,
but still before the election. It was only after the elec-
tion, wherein Wilson had enraged Gelb by coming into
work and voting contrary to Respondent's unlawful at-
tempts to prevent him from doing so, did Respondent
eliminate his messenger work and assign same to Haynes,
while assigning Wilson to less desirable maintenance
tasks. Such conduct is violative of Section 8(a)(3) of the
Act. 7 Up Bottling Co., 261 NLRB 894, 903 (1982).
As for the compactor assignments, prior to the elec-
tion Wilson was routinely given assistance when being
assigned such work. Moreover, the job requires two
people to be done without severe hardship. After the
election, Wilson was assigned to perform compactor
work by himself, and that when he was given assistance,
it was given by other employees voluntarily. By assign-
ing Wilson such work, without the assistance he had
been given in the past, Respondent has assigned him
more arduous and less agreeable job tasks in violation of
Section 8(a)(1) and (3) of the Act. Marchese Metal, 270
NLRB 293, 299 (1984).
As for Respondent's discharge of Wilson, on 3 July,
the substantial prima facie case of unlawful motivation
outlined above, is further strengthened by Gelb's two
prior threats directly to Wilson that if the Union came
in, Respondent would become stricter in its enforcement
of employees' lateness.
Respondent then must present evidence to meet its
burden of establishing that it would have discharged
Wilson absent his union activities. In this connection,
lateness records of Wilson were introduced into the
record, which demonstrate a consistent pattern of exces-
sive lateness by Wilson for the last 3 months of his em-
ployment.
Additionally, the record demonstrates that Wilson re-
ceived a number of oral warnings, and three written
warnings from Respondent for his lateness, prior to his
discharge on 3 July.
While such a record of lateness normally would justify
the discharge of any employee, the issue to be decided is
whether this employer relied on such lateness to termi-
nate Wilson. See Ann's Laundry, 268 NLRB 1013, 1017
(1984), and also at 276 NLRB 269 (1985). I fmd that not-
withstanding Wilson's poor lateness record, Respondent
has not shown that it would have terminated him be-
cause of it, absent his union activities.
The record is undisputed that Wilson was chronically
late at Respondent, particularly for the last year of his
employment. However, Respondent took no personnel
actions against Wilson until after the appearance of the
Union.13°
In April and May, Wilson received four oral warnings
about lateness, including threats of discharge, and one
written warning in May dealing with that subject. How-
ever, it must be emphasized that on 5 June Wilson was
told by Respondent's officials and agents "that every-
thing would be forgotten," if he did not vote in the elec-
tion, the next day. Thus, it is clear that Respondent was
willing to forgive all of Wilson's prior transgressions in-
cluding his latent= record, as well as his arrests while on
the job, if he did not vote in the election. I therefore
conclude that Respondent cannot rely on this preelection
conduct by Wilson to justify its discharge.
While Wilson's postelection lateness record did not im-
prove, and actually worsened, and Respondent again
issued two written warnings 131 to him for such conduct,
I am still unpersuaded that Wilson's lateness motivated
Respondent's decision to discharge him.
Respondent's failure to take any disciplinary action
against Earl Haynes, detracts substantially from the va-
lidity of its defense. Haynes, as noted, acted as Respond-
ent's agent in unlawfully promising Wilson benefits if he
did not vote in the election and was obviously not a
union supporter at that time. Haynes, who also performs
similar work to Wilson, possessed a lateness record
nearly as poor as Wilson's. Yet, Respondent never even
issued Haynes any written warnings, much less terminate
him for his lateness record. 132 Such disparate treatment
of Wilson by Respondent is strong evidence of discrimi-
natory motivation. Bliss & Laughlin Steel Co., 266 NLRB
1165, 1172 (1983), enfd. 754 F.2d 229, 236 (7th Cir.
1985); J. P. Stevens Co., 247 NLRB 420, 461 (1980).
Moreover, and quite curiously, we come to Respond-
ent's decision to terminate Wilson on 3 July. Respondent
offered no testimony or other evidence about why it
chose that date, which is in the middle of a payroll
week, to finally discharge Wilson. What is most ques-
tionable about the choice of this date is the fact that
Wilson on 1 and 2 July punched in on time prior to 9
a.m. These were the first 2 days that Wilson had
punched in prior to 9 a.m. in over 3 months. Thus it
would appear that Respondent's warning letters were fi-
nally having some effect.
Absent some reasonable explanation for Respondent's
choice of 3 July to terminate Wilson, I can only con-
clude, which I do, that it decided to discharge him on
that date because he was finally showing some improve-
ment in his lateness record, and Respondent did not want
such improvement to continue and make its termination
decision suspect. I am persuaded by the above that if Re-
spondent truly was concerned about Wilson's lateness, it
certainly would have given him more time to show im-
13° I note that while Respondent issued a notice in November 1983 to
Wilson and all employees dealing with lateness, and announcing a rule
that an employee with three or more latenesses will be suspended and
eventually discharged, this procedure was not effectuated nor followed.
sal I note that these written warnings were issued shortly after the
election, and Wilson's disregard for Respondent's unlawful instructions
not to vote. Cf. Taylor-Dunn Mfg. Co., 252 NLRB 799, 800 (1980).
132 According to Haynes, he received two verbal warnings from Gelb,
one before the Union appeared and one before the election
EDP MEDICAL COMPUTER SYSTEMS

1281
provement, as he did on 1 and 2 July, the 2 days before
his discharge.
I note further in this connection that during the week
ending 5 July, the week of Wilson's discharge, Haynes
was late every day, and averaged 26 minutes late per
day. Yet no warning or other disciplinary action was
taken against Haynes.
Accordingly, based on the above, I find that Respond-
ent tolerated and condoned Wilson's lateness record,'"
disparately treated him vis-a-vis Haynes, and gave no ex-
planation for discharging him immediately after he final-
ly began to show improvement in his lateness record.
It has therefore failed to meet its burden of demon-
strating that it would have terminated Wilson, absent his
union activities, and has violated Section 8(a)(1) and (3)
of the Act. I so find.
IV. THE ALLEGED DISCRIMINATORY FAILURE TO
GRANT UNION SUPPORTERS RAISES
The General Counsel argues that Respondent discri-
minatorily refused to grant wage increases to union sup-
porters Arguelles, Burgos, Beradino, Valentine, and
Wilson after the 6 June election.
The General Counsel relies on the promise to Burgos
by Respondent that if he did not vote, he would be
given a raise, coupled with the fact that nonunion sup-
porters were granted raises at various times before and
after the election.
I find that the above evidence is insufficient to meet
the General Counsel's burden of proving that a motivat-
ing factor in the failure to give raises to union supporters
was their union activities. Most significantly, the record
is undisputed that Respondent has no established policy,
formal or informal, of granting raises at any particular
time. Furthermore, there is no evidence that any of these
employees were scheduled to receive or had been prom-
ised to receive a definite wage increase.'"
Moreover, I note that some of the employees who re-
ceived wage increases during this period of time, such as
Nose! and Maisonave were card signers, thereby reduc-
ing some of the suspicion from Respondent's choice of
employees who received wage increases.
Accordingly, the General Counsel has failed to estab-
lish that Respondent's failure to grant wage increases to
union supporters was violative of Section 8(a)(1) and (3)
of the Act, and must be dismissed. American Mirror Co.,
269 NLRB 1091, 1094 (1984).
V. THE ALLEGED REFUSAL TO BARGAIN AND
REQUEST FOR A BARGAINING ORDER
It is undisputed that the following 20 individuals con-
stitute employees employed by Respondent in the appro-
"3 I note that Respondent's admitted policy was to dock employees
for every minute late, unless they make it up at the end of the day. Thus
Respondent did not pay for any time not worked, and may not have
therefore been as concerned about lateness as other employers who do
not have such a policy.
"4 The statement made to Burgos by Haynes acting as Respondent's
agent that Burgos would receive a raise if he did not vote, although an
unlawful promise is not in my view sufficient to establish that a raise for
Burgos had been scheduled. In fact, the promise was contingent on
Burgos not voting, and he did in fact vote in the election.
priate bargaining unit135 between 12 and 27 March;
David Arguelles, Linda Beradino, Anna Goodall, Merce-
des Harasme, Megaly Lopez, Robert Roth, Lynda Jack-
son, Sarahnie Smith, David Burgos, Joseph Diggs, James
DeStefano, Earl Haynes, Jorge Lee, Lucy Maisonave,
Marilyn Nosel, Terry Rhett, Haresh Shah, Monroe
Trimble, Richard Weimert, and Lawrence Wilson.
Of the six individuals whose status is in dispute, I have
found above that Esther Shaw and Joy Scott were dis-
criminatorily discharged by Respondent, and that Ivy
Valentine was not a statutory supervisor. Accordingly,
these 3 must be included in the appropriate unit, raising
the number to 23.
I have also found that Dan King was a supervisor
under Section 2(11) of the Act and that Joseph Silvag-
noli was a managerial employee. Thus, they must be ex-
cluded from the unit. Finally, I have also concluded that
Al Hennenberger Jr. was not an employee of Respond-
ent during this period of time; and must also be excluded
from computation of the number of employees in the
unit, leaving the number at 23.
The Union was able to obtain 16 authorization cards
during the campaign. The card of Daniel King must be
excluded from computing the Union's majority because
of his supervisory status. Of the remaining 15 authoriza-
tion cards submitted, Respondent contests the validity of
the cards of Arguelles, Maisonave, Haynes, and Roth
based on alleged misrepresentation made by union offi-
cials." 3 6
Respondent contends that statements made to these
four employees by union representatives amounted to
misrepresentation that the cards would be used only to
obtain an election, and therefore must be invalidated.
Serv-U-Stores, 234 NLRB 1143, 1146 (1978). I do not
agree.
I note initially that all four of the employees attended
union meetings prior to signing their cards, during which
DePietro explained the unionization process, including
telling employees that the signing of union cards author-
izes the Union to represent and negotiate for employees
with Respondent. She also told employees that if the
Union obtained a majority of cards, it would ask Re-
spondent to voluntarily recognize it. If Respondent re-
fused, then the Union would file for an election at the
NLRB It is therefore clear that the comments made by
DePietro at the meetings do not come close to amount-
ing to a misrepresentation that the cards would be used
solely to obtain an election, and that therefore such cards
must be counted. Photo Drive Up, 267 NLRB 329, 365,
366 (1983); Horizon Air Services, 272 NLRB 243, 259
(1984).
136 The appropriate unit, to which the parties stipulated at the repre-
sentation case hearing, and have agreed herein is appropriate, includes
"all data entry operators, computer operators, computer programmers,
production and maintenance employees, drivers, collection employees
and office clerical employees employed by Respondent at their facility
located at 143-11 Archer Avenue, Jamaica, N.Y., excluding all other em-
ployees, guards and supervisors as defined in the Act."
"6 Thus the cards of Beradino, Lopez, Smith, Burgos, Nosel, Shah,
Weimert, Wilson, Shaw, Scott, and Valentine are not contested by Re-
spondent on misrepresentation grounds, and can be used to establish ma-
jority status.
1282 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Haynes also testified that a few days before he actually
signed his card, he asked DePietro if he would be in the
Union if he signed the card. She replied no, but further
down the road there would be an election that would
decide whether the workers would be in the Union.
These remarks by DePietro, which by the way were not
inconsistent with her comments at the union meetings,
also did not amount to a misrepresentation that the card
would be used "solely" to obtain an election. Photo
Drive, supra; Horizon Air, supra. Thus the card of Haynes
must be counted.
As for Maisonave, she testified that she did not read
the card before she signed it, but admitted to being told
the card was to obtain "better benefits." Although as
noted above, I have concluded that contrary to her testi-
mony she did read the card before signing it, even if I
were to have credited her as to such testimony, the fail-
ure to so read the card would not have invalidated it.
Atlas Microfilming, 267 NLRB 682, 692 (1983). Similarly
none of the remarks made to her on 26 March when she
executed her card amounted to improper misrepresenta-
tions under the above cases.
As for Roth, as noted I did not credit his testimony
that DePietro at the union meeting on 1 February said to
employees, "nothing will be finalized until an election
was held." However, even crediting this testimony does
not establish that Roth was told that the cards would be
used "solely" for an election, as required by the above
cases in order to invalidate such card for computing ma-
jority status.
Accordingly, I conclude that the Union obtained 15
valid authorization cards from employees employed in
the unit between 11 and 27 March. As noted, when the
Union made its demands for recognition on 4 and 5
March, it requested recognition for a unit limited to
technical employees (data entry employees and computer
operators). At that time it possessed only nine authoriza-
tion cards of employees in the unit.'" Thus it did not
represent a majority of employees in the appropriate unit
at that time.
The complaint alleges and the General Counsel argues
that the Union obtained its majority status as of 12
March, by virtue of having obtained the authorization
cards of Burgos, Weimert, and Haynes prior thereto.
These three cards all obtained between 4 and 11 March,
raises the Union's count to 12 out of 23, which is suffi-
cient for the establishment of majority status as of 12
March. I also note that between 12 and 26 March, the
Union obtained additional cards from Maisonave, Nosel,
and Shah, raising its total to 15 out of 23 as of 27 March.
Thus, while the Union did obtain majority status in an
appropriate unit, it did not make another demand for rec-
ognition on Respondent in the appropriate unit. Because
the unit alleged in the complaint, as found appropriate
herein, deviated substantially" 8 from the unit in which
137 The cards of Arguelles, Beradino, Lopez, Roth, Scott, Shaw,
Smith, Valentine, and Wilson.
138 In this connection the unit found appropriate is over double the
size of the unit demanded by the Union.
the Union demanded recognition, no -proper demand for
recognition was made by the Union. Nor was such fail-
ure cured by the Union's amending its petition at the
hearing to properly defme the unit; Chester Valley, 251
NLRB 1435, 1450 (1980); Motown Record Corp., 197
NLRB 1255, 1261 (1972). Therefore, the 8(a)(5) violation
must be dismissed.
However, the absence of an 8(a)(5) finding does not
preclude the issuance of a bargaining order if found nec-
essary to remedy the 8(a)(1) and (3) violations found. Soil
Engineering Co., 269 NLRB 55, 57, 79 (1984); Shenani-
gans, 264 NLRB 908 (1982).
It is therefore appropriate to consider whether Re-
spondent's unfair labor practices require the issuance of a
bargaining order under the standards set forth by the Su-
preme Court in NLRB v. Gissel Packing Co., 395 U.S.
575 (1969). I fmd that the unfair labor practices commit-
ted by Respondent in the instant case fall into the first
category of cases in which a bargaining order is re-
quired, marked by "outrageous and pervasive" violations
so that traditional remedies cannot erase their coercive
effects with the result that a fair election is impossible.
See Marchese Metal, 270 NLRB 293, 300 (1984); Kaynard
v. MMIC Inc., 734 F.2d 950, 954 (2d Cir. 1984).
At the very least, the violations committed by Re-
spondent fall into the second category of cases justifying
a bargaining order, where the possibility of erasing the
effects of past practices and of ensuring a fair election or
fair rerun election by the use of traditional remedies
though present, is slight and that employee sentiment
once expressed through cards, would on balance, be
better protected by a bargaining order. Quality Alumi-
num Products, 278 NLRB 338 (1986); Long-Airdox Co.,
277 NLRB 1157 (1985); Kona 60 Minute Photo, 277
NLRB 867 (1985).
Respondent's violations were extensive in number and
pervasive in terms of the number of unit employees they
affected. Quality Aluminum, supra. Respondent dis-
charged or refused to permit employees to rescind their
resignations (tantamount to a discharge) 5 unit employees
out of a unit of 23. Thus over 20 percent of a relatively
small unit was so treated. Additionally, some 16 employ-
ees out of the unit had their hours unlawfully cut in half
for a 3-week period and three employees suffered a sub-
stantial loss of earnings by elimination of their overtime.
Moreover, the entire unit was subject to the unlawful
changes in work rules.
The "hallmark" violations committed by Respondent,
also include unlawful threats to close and move the facil-
ity, and to discharge employees. Quality Aluminum,
supra; NLRB v. Jamaica Towing, 632 F.2d 208, 212, 213
(2d Cir. 1980).
It is also significant that nearly all the violations were
committed by Respondent's top management, most by
Company President Bernard Gelb himself. "The effect of
unfair labor practices is heightened when they are com-
mitted by top management officials who are readily per-
ceived as representing company policy and as possessing
the ability to implement unlawful threats." Long-Airdox,
supra at 1160.
EDP MEDICAL COMPUTER SYSTEMS

1283
It also noted that Respondent continued its unlawful
conduct after the election was over, and while objections
were pending, by assigning more onerous work to and
discharging Wilson, refusing to accept Lopez' resigna-
tion, and issuing an unlawful written warning to Burgos.
Such postelection conduct erodes the possibility of en-
suring a fair rerun election. Ibid.
Accordingly, I conclude in view of the nature and
extent of Respondent's violations, noting the swiftness
and timing of Respondent's conduct that began the day
after the Union appeared, and its continued unlawful
conduct after the election, that a bargaining order is the
only appropriate remedy for these extensive and perva-
sive violations.139 Long-Airdox, supra at 1160; MMIC,
supra; also Kona 60 Minute, supra; Quality Aluminum,
supra.
VI. THE REPRESENTATION CASE
I have found that Respondent committed a number of
unfair labor practices between the date the petition was
filed (4 March) and the date of the election (6 June).
These violations include, inter alia, the discharge of
Scott, the constructive discharge of and refusal to permit
Smith to rescind her resignation, the reduction of hours,
and numerous 8(a)(1) threats, interrogations, and prom-
ises of benefits. Such conduct by Respondent is more
than sufficient to interfere with the laboratory conditions
necessary to ensure that employees exercise a free
choice. Accordingly, I recommend that the election in
Case 29-RC-6353 be set aside and, in view of my issu-
ance of a bargaining order, that all proceedings in con-
nection with the representation case be vacated. Village
IX, supra at 925.
CONCLUSIONS OF LAW
1. Respondents EDP Medical Computer Systems Inc.,
Consumers Subscription Center Inc., and Consumers
Subscription Service Inc., and each of them, are employ-
ers engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Local 888, United Food and Commercial Workers
International Union, AFL-CIO is a labor organization
within the meaning of Section 2(5) of the Act.
3. All data entry operators, computer operators, com-
puter programers, production and maintenance employ-
ees, drivers, collection employees, and office clerical em-
ployees, employed by EDP Medical Computer Systems
Inc., Consumers Subscription Center Inc., and Consum-
ers Subscription Service Inc. at their facility located at
143-11 Archer Avenue, Jamaica, New York, excluding
other employees, guards, and supervisors as defmed in
the Act, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b)
of the Act.
4. At all times since 12 March 1985, the Union has
been the exclusive majority representative of the employ-
139 I shall order the Respondent to bargain with the Union as of 12
March, the date on which the Union obtained its majority status and the
date after which Respondent continued its course of unlawful conduct.
Village IX, supra at fn. 1; Kona 60 Minute, supra.
ees in the aforesaid unit for the purpose of collective bar-
gaining within the meaning of Section 9(a) of the Act.
5. By threatening employees with discharge, blacklist-
ing, closing, or moving the Company, eliminating their
practice of granting personal loans to employees, stricter
enforcement of tardiness, absence, and other plant rules,
that they would never recognize or negotiate with the
Union, and the assignment of more onerous working
conditions because the employees support the Union, by
warning and instructing employees not to get involved
with the Union, by coercively interrogating employees
concerning their or other employees' union activities or
sympathies, soliciting grievances from employees and in-
dicating a willingness to rectify them in order to under-
mine the Union, by promising employees the restoration
of its practice of granting loans to employees, additional
sick days, raises, and that they would forgive and forget
all past transgressions by employees if employees with-
drew their support for the Union and/or failed to vote in
a Board election, and by engaging in surveillance of the
union meetings and other concerted activities of its em-
ployees, Respondents have violated Section 8(a)(1) of the
Act.
6. By discharging and refusing to reinstate employees
Esther Shaw, Joy Scott, Lawrence Wilson, and Saralmie
Smith, refusing to permit Smith and Megaly Lopez to re-
scind their resignations, curtailing the overtime assign-
ments of employees Ivy Valentine, Linda Beradino, and
Sarahnie Smith, reducing the working hours of its em-
ployees, changing or enforcing more strictly work rules
with regard to personal phone calls, smoking and radio
playing, calling in loans of employees and making deduc-
tions from their salaries without the employees' consent,
issuing written warnings to employees, and assigning em-
ployees more onerous and less agreeable work because of
the employees' support for and activities on behalf of the
Union, Respondents have violated Section 8(a)(1) and (3)
of the Act.
7. By constructively discharging and refusing to
permit Sarahnie Smith to rescind her resignation because
she appeared at a Board representation hearing, Re-
spondents have violated Section 8(a)(1) and (4) of the
Act.
8. Respondents' unfair labor practices conduct and the
objections to the election, interfered with the holding of
a free and fair election conducted on 6 June 1985 in Case
29-RC-6353.
9. The above unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
10.Respondents have not engaged in the other unfair
labor practices alleged in the complaint as amended.
THE REMEDY
Having found that Respondents have violated Section
8(a)(1), (3), and (4) of the Act, I shall recommend that
they cease and desist therefrom and take certain affirma-
tive action designed to effectuate the purposes of the
Act. Having found that Respondents discriminatorily dis-
charged and refused to reinstate Shaw, Scott, Wilson,
and Smith, and refused to allow Smith and Lopez to re-
scind their resignations (tantamount to a discharge), I
1284 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
shall recommend that Respondents be ordered to offer
these employees immediate and full reinstatement to their
former positions of employment or, if these positions are
not available, to substantially equivalent positions, with-
out prejudice to their seniority or other rights and privi-
leges previously enjoyed.14°
Respondents shall also be ordered to make whole these
employees for any losses they may have suffered by
reason of the discrimination against them. The loss of
earnings for these employees shall be computed in the
manner prescribed in F. W. Woolworth Co., 90 NLRB
289 (1950), and shall include interest as set forth in Isis
Plumbing Co., 138 NLRB 716 (1962), and Florida Steel
Corp., 231 NLRB 651 (1977).
Having found that Respondents discriminatorily cur-
tailed overtime assignments to Linda Beradino, Ivy Val-
entine, and Sarahnie Smith, and unlawfully reduced the
working hours for a large portion of the bargaining unit,
I shall also recommend these employees be made whole
for any losses of pay suffered by such employees result-
ing from actions of Respondent. The backpay due these
employees shall be computed in the manner set forth in
Ogle Protection Service, 183 NLRB 682 (1970); Olympia
Plastics Corp., 266 NLRB 519 fn. 4 (1983). Interest for
these discriminatees shall be as prescribed for the other
discriminatees set forth above.
I shall also recommend that Respondents remove from
their files any reference to the discharges of Shaw, Scott,
Wilson, and Smith and the resignations of Smith and
Lopez, as well as the written warning to Burgos, and
notify these employees in writing that this has been done
and that evidence of these actions will not be used by
the Respondents as a basis for future personnel actions
against them.
I fmd, in agreement with the request of the General
Counsel, that in view of the flagrant and multiple viola-
tions of the Act committed by Respondents, which ema-
nated principally from their president, Bernard Gelb,
that he should be required to personally read a copy of
the notice, which shall contain a broad cease and desist
order (Cutting, Inc., 255 NLRB 534 (1981); Hickmott
Foods, 242 NLRB 1357 (1979)) to its employees in the
presence of a Board agent. F.W.IL. Lundy Bros. Restau-
rant, 248 NLRB 415, 416 (1980).
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
edi41
ORDER
The Respondents, EDP Medical Computer Systems
Inc., Consumers Subscription Center Inc., and Consum-
140 Although Scott was offered and accepted reinstatement by Re-
spondent in August, this position was as a new employee without her
previous seniority. This is not a sufficient offer, and it is therefore appro-
priate to order that Scott be among those offered an assured unqualified
remstatement. Vulcan-Hart Corp., 262 NLRB 167, 178 (1982).
141 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the fmdings, 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 pur-
poses.
ers Subscription Service Inc., its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Coercively interrogating their employees concern-
ing such employees' or other employees' activities or
sympathies on behalf of Local 888, United Food and
Commercial Workers International Union, AFL-CIO.
(b) Threatening their employees with discharge, black-
listing, closing or moving the facility, eliminating their
practice of granting personal loans to employees, stricter
enforcement of tardiness, absence, and other work rules,
that they would never recognize or negotiate with the
Union, or the assignment of more onerous working con-
ditions because of such employees' support for and ac-
tivities on behalf of the Union.
(c) Warning and instructing employees not to become
involved with the Union.
(d) Soliciting grievances from employees and indicat-
ing a willingness to rectify them in order to undermine
the Union.
(e) Promising their employees the restoration of their
practice of granting personal loans to its employees, ad-
ditional sick days, raises, that they would forgive and
forget past transgressions by employees, and other im-
provements in terms or conditions of employment, to
induce employees to withdraw their support for the
Union or to fail to vote in a Board election.
(f) Engaging in surveillance of the union meetings and
other union and concerted activities of their employees.
(g) Discharging or refusing to reinstate employees, or
refusing to permit employees to rescind their resignations
because of their activities on behalf of or support for the
Union.
(h) Reducing overtime assignments or working hours
of employees, changing or enforcing more strictly work
rules with regard to personal phone calls, smoking, radio
playing, or other plant rules, calling in loans of employ-
ees and making deductions from their salaries without
such employees' consent, issuing written warnings to em-
ployees, or assigning employees more onerous and less
agreeable work, because of their activities on behalf of
or support for the Union.
(i) Discharging or refusing to permit employees to re-
scind their resignations because they appeared at a Board
representation hearing.
(j) In any other manner interfering with, restraining, or
coercing employees in the exercise of their right to self-
organization, to form, join, or assist Local 888, United
Food and Commercial Workers International Union,
AFL-CIO, or any other labor organization, to bargain
collectively through representatives of their own choos-
ing, and to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or
protection, or to refrain from the exercise of such activi-
ty.
2. Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Offer Esther Shaw, Joy Scott, Sarahnie Smith,
Megaly Lopez, and Lawrence Wilson immediate and full
reinstatement to their former positions of employment or,
if these jobs no longer exist, to substantially equivalent
EDP MEDICAL, COMPUTER SYSTEMS 1285
positions, without prejudice to their seniority and other
rights and privileges previously enjoyed.
(b) Make whole Esther Shaw, Joy Scott, Saralmie
Smith, Megaly Lopez, Lawrence Wilson, Ivy Valentine,
Linda Beradino, and the employees whose hours were
unlawfully reduced on 12 March 1985, 142 for any loss of
earnings and other benefits suffered by them as a result
of the discrimination against them, in the manner set
forth in the remedy section of this decision.
(c) Remove from its files any reference to the dis-
charges and/or resignations of Esther Shaw, Joy Scott,
Sarahnie Smith, Megaly Lopez, and Larry Wilson, and
the written warning issued to David Burgos, and notify
these employees in writing that this has been done, and
that evidence of these unlawful terminations, refusal to
accept resignations, and warnings will not be used by it
as a basis for future personnel actions against such em-
ployees.
(d) Recognize and, on request, bargain with the Union
as the exclusive collective-bargaining representative of
the employees in the appropriate unit described below
with respect to terms and conditions of employment of
such employees and, if an agreement or understanding is
reached, embody such understanding in a signed agree-
ment:
All data entry operators, computer operators, com-
puter programmers, production and maintenance
employees, drivers, collection employees, and office
clerical employees employed by EDP Medical
Computer Systems Inc., Consumers Subscription
Center Inc., and Consumers Subscription Service
Inc., at their facility at 143-11 Archer Avenue, Ja-
maica, New York, excluding all other employees,
guards and supervisors as defined in the Act.
142 I note that because I have found above that David Arguelles'
hours were not reduced for unlawful reasons on that date, he of course is
not entitled to any backpay.
(e) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, time cards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(f) Post at their place of business in Jamaica, New
York, copies of the attached notice marked "Appen-
dix.,9143 Copies of the notice, on forms provided by the
Regional Director for Region 29, after being signed by
the Respondents' authorized representative, shall be
posted by the Respondents immediately upon receipt and
maintained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondents to ensure that the notices are not altered,
defaced, or covered by any other material.
(g) At such reasonable time after entry of this as the
Board may request, convene during working time, and
by departments and shifts if necessary, all employees at
their facility and have the attached notice read to the
employees by their president, Bernard Gelb. The Board
shall be afforded a reasonable opportunity to provide for
the attendance of a Board agent.
(h) Notify the Regional Director in writing within 20
days from the date of this Order what steps Respondents
have taken to comply.
IT IS FURTHER RECOMMENDED that the complaints, as
amended, be dismissed in all other respects.
IT IS FURTHER RECOMMENDED that the election peti-
tion in Case 29-RC-6353 be dismissed.
143 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."