Sunnyside Home Care Project

National Labor Relations Board - Board Decisions

Aug 24, 1992

308 N.L.R.B. 346 (N.L.R.B. 1992)

346
308 NLRB No. 65
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 In finding that Supervisor Woubatu threatened employee Ducoste
with discharge if she went on strike, the judge may have relied on
Ducoste’s subjective interpretation of Woubatu’s statement to her.
We note that the Board does not consider subjective reactions, but
rather whether, under all the circumstances, a respondent’s remarks
reasonably tended to restrain, coerce, or interfere with employees’
rights guaranteed under the Act. American Freightways Co., 124
NLRB 146 (1959). We find that under this standard Woubatu’s
statement to Ducoste was coercive.
1 After the time for filing of briefs had expired, Respondent sub-
mitted a motion to dismiss the complaint, which addressed General
Counsel’s brief. I am treating the motion as a reply brief, as to
which no permission for filing had been granted. Even if the motion
had been properly filed, it is denied on its merits. The motion seeks
dismissal of the complaint on the ground that the name of the em-
ployee who was threatened was not set forth in the complaint or at
any time prior to the hearing. Respondent accordingly asserts that
such failure to disclose the victim’s name is a violation of due proc-
ess of law. The motion is denied. There is no requirement that the
identity of the subject of an 8(a)(1) threat be identified prior to the
hearing. Moreover, Respondent could have learned the employee’s
identity if it had chosen to attend the hearing.
Sunnyside Home Care Project, Inc. and Local 1199,
Drug, Hospital and Health Care Employees
Union. Case 29–CA–15687
August 24, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On April 17, 1992, Administrative Law Judge Ste-
ven Davis issued the attached decision. The Respond-
ent filed exceptions, and the General Counsel filed a
brief in response.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Sunnyside Home Care
Project, Inc., Long Island City, New York, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order.
Kevin Kitchen, Esq., for the General Counsel.
Eric Rosenfeld (Seyfarth, Shaw, Fairweather & Geraldson),
of New York, New York, for the Respondent.
DECISION
STATEMENT OF THE CASE
STEVEN DAVIS, Administrative Law Judge. Pursuant to a
charge filed on April 19, 1991, by Local 1199, Drug, Hos-
pital and Health Care Employees Union (Union), a complaint
was issued by Region 29 of the Board on July 2, 1991,
against Sunnyside Home Care Project, Inc. (Respondent).
The complaint alleges that the Union notified Respondent
that certain of Respondent’s employees would engage in a
strike, picketing or other concerted activity at its facility, and
that they did, in fact engage in a strike thereafter. The com-
plaint further alleges that prior to the strike, Respondent
threatened its employees with unspecified reprisals if they
engaged in the strike, and also alleges that after the strike,
Respondent threatened its employees with discharge because
they engaged in the strike.
Respondent’s answer denied the material allegations of the
complaint and asserted certain affirmative defenses, which
will be set forth, infra.
On March 17, 1992, a hearing was held before me in
Brooklyn, New York. Despite proper notification of the hear-
ing, neither Respondent nor its attorney appeared. Imme-
diately prior to the hearing, Respondent’s attorney notified
General Counsel that Respondent would not appear. General
Counsel advised Respondent’s attorney that the hearing
would be held in their absence.
On the evidence presented in this proceeding, and my ob-
servation of the demeanor of the sole witness, and after con-
sideration of the letter-brief filed by General Counsel, I make
the following1
FINDINGS OF FACT
I. JURISDICTION
Respondent’s answer did not deny, and therefore, pursuant
to Section 102.20 of the Board’s Rules and Regulations, ad-
mitted the following allegations of the complaint.
Respondent, a New York corporation, having an office and
place of business at 43–31 39th Street, Long Island City,
New York, has been engaged in providing home health care
services and related services. During the past year, Respond-
ent derived gross revenues in excess of $250,000 from its
business operations, and during the same period of time, pur-
chased and received at its New York location, products,
goods, and materials valued in excess of $50,000 directly
from points located outside New York State. Respondent is
an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
Respondent’s answer admitted that on about April 4, 1991,
the Union notified Respondent that beginning on April 17,
1991, certain of Respondent’s employees represented by the
Union, would engage in a strike, picketing, or other con-
certed activity at Respondent’s Long Island City facility.
Cole Ducoste testified that she has been employed by Re-
spondent for 4 years, as a home attendant. She takes care of
clients in need of care in their homes, as assigned by Re-
spondent. She stated that she has been a member of the
Union for about 2 years, and that other employees of Re-
spondent are also members of the Union.
347SUNNYSIDE HOME CARE PROJECT
2 Her name was spelled Zinny Wabatoo in the transcript. Inasmuch
as this appears to be a phonetic spelling, I have used the name as
set forth in the complaint.
In late March 1991, Ducoste attended a union meeting
near her worksite, which was also attended by other employ-
ees of Respondent. Union Organizer Caroline Buggs led the
discussion concerning improved wages, and notification to
officials of New York City that the Union opposed certain
budget cuts imposed by the City. It was decided that a strike
would take place on April 17. The employees in attendance
agreed.
Ducoste stated that 2 weeks before the strike, she called
her supervisor, Zeni Woubatu,2 and told her that she wanted
to go on strike. Woubatu told her that if she wanted to strike,
‘‘you need another agency.’’ Ducoste responded that she be-
lieved that the Union informed Respondent that it intended
to strike, adding that she wished to participate. Woubatu re-
peated that if Ducoste went on strike, you need another agen-
cy.’’ Ducoste stated that she interpreted Woubatu’s statement
as meaning that if she engaged in the strike, she would have
to get another job.
On April 16, Ducoste again called Woubatu and asked her
to obtain a replacement to care for her client. Woubatu in-
formed Ducoste that she had to give her 2 weeks’ notice if
she wanted to go on strike. Ducoste responded that if
Woubatu would not give her the day off, she would take the
day off herself. Woubatu said ‘‘okay.’’
On April 17, Ducoste engaged in a strike, and participated
with other employees of Respondent at a union demonstra-
tion in Manhattan.
Some time after the strike, Ducoste decided to complain
about Woubatu’s statement to her. She asked an employee of
Respondent, stationed at a desk, for Woubatu’s boss. That
unnamed employee told her that Joan Cohen was Woubatu’s
superior. Ducoste knows ‘‘nothing about’’ Cohen, but met
with her in an office and told Cohen what Woubatu said to
her concerning her intention to strike, as set forth above.
Cohen responded that Ducoste could lose her job, and could
be fired for going on strike, and also advised that she was
supposed to give 2 weeks’ notice, which is agency policy.
Respondent denied knowledge or information that
Woubatu was a statutory supervisor. Ducoste testified that
Woubatu was her supervisor. Woubatu works in an office at
Respondent, and keeps Ducoste’s time records. If Ducoste
has a problem, or if a client has a problem or complaint con-
cerning Ducoste’s performance, Woubatu is contacted and at-
tempts to resolve the matter. If Ducoste wants a day off or
is sick, she calls Woubatu and asks her to obtain a replace-
ment. On one occasion, a client complained that Ducoste was
not caring for him properly, by not taking him in his wheel-
chair a distance which Ducoste believed was too far. The cli-
ent visited Respondent’s office and met with Woubatu. After
their meeting, Woubatu told Ducoste that she (Ducoste) was
wrong, and that she was not supposed to say ‘‘no’’ to a cli-
ent. On another occasion, Ducoste told Woubatu that she did
not like the job she was on and requested a transfer.
Woubatu assigned her to a different client.
Analysis and Discussion
The complaint alleges that on about April 8, 1991, Re-
spondent’s supervisor Woubatu threatened its employees with
unspecified reprisals if they engaged in a strike.
Respondent denied that Woubatu is a statutory supervisor.
Ducoste credibly testified that Woubatu resolves her com-
plaints, and resolves complaints between Ducoste and her cli-
ents, and on one occasion told her she was wrong in her
treatment of a client. Woubatu also assigns and reassigns
Ducoste to various clients. Woubatu also granted time off to
Ducoste at her request. Ducoste identified Woubatu as her
supervisor.
Section 2(11) of the Act provides that an individual is a
supervisor within the meaning of the Act if that person has:
Authority, in the interest of the employer, to hire, trans-
fer, suspend, lay off, recall, promote, discharge, assign,
reward or discipline other employees, or responsibly to
direct them, or to adjust their grievances, or effectively
to recommend such action, if in connection with the
foregoing the exercise of such authority is not of a
merely routine or clerical nature, but would require the
use of independent judgment.
In order to be found to be a supervisor, she is required to
possess only one of the above criteria. Superior Bakery, 294
NLRB 256, 262 (1989).
Based on the evidence received at the hearing, I find and
conclude that Zeni Woubatu is a supervisor within the mean-
ing of the Act. I note that Woubatu assigned and reassigned
Ducoste to jobs and reassigned her at her request, and re-
solved complaints of Ducoste and Ducoste and her client,
during which Woubatu reprimanded Ducoste for not doing as
her client wished. It appears that in the exercise of these re-
sponsibilities, particularly her resolution of the complaint be-
tween Ducoste and her client, and her reprimanding of
Ducoste, Woubatu utilized independent judgment.
Respondent also denied that its employees ceased work
concertedly and engaged in a strike on April 17. Ducoste tes-
tified that prior to the strike, she and other employees of Re-
spondent engaged in a discussion with a union agent con-
cerning improved wages and a protest over certain New York
City budget cuts, and that she and other employees of Re-
spondent engaged in a strike on April 17. There is no evi-
dence that the strike was in violation of a no-strike clause
in the parties’ contract, or that the strike was not protected
or concerted. In addition, it appears that the proper 10-day
notice, pursuant to Section 8(g) of the Act, was given by the
Union. Under these circumstances, I find and conclude that
on April 17, Respondent’s employees ceased work
concertedly and engaged in a strike.
Ducoste’s uncontradicted testimony establishes that about
2 weeks before April 17, Woubatu told her that if she in-
tended to strike she needed another agency, which meant, to
Ducoste, that she would have to get another job.
The complaint alleges that Woubatu threatened its employ-
ees with unspecified reprisals if they engaged in the strike.
The evidence supports a finding that Woubatu threatened
Ducoste with discharge if she engaged in the strike. I accord-
ingly find and conclude that such a threat violates Section
348 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
4 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
National 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.’’
8(a)(1) of the Act. Parkview Gardens Care Center, 280
NLRB 47, 50 (1986).
The complaint also alleges that Respondent, by a super-
visor whose identity was unknown, violated the Act by
threatening employees with discharge for engaging in the
April 17 strike. This allegation apparently relates to the testi-
mony concerning Ducoste’s conversation with Joan Cohen.
I cannot find a violation based on this alleged conversa-
tion. The identity of Respondent’s alleged supervisor is too
vague to support a finding of violation. Thus, Ducoste testi-
fied that Cohen was identified as Woubatu’s supervisor by
an unidentified employee sitting at a desk. Ducoste knew
nothing about Cohen, but was told by Cohen that Ducoste
could lose her job and could be fired for going on strike.
There is thus no credible evidence that Cohen is Respond-
ent’s supervisor or agent. The identification of Cohen by an
unnamed employee as Woubatu’s ‘‘boss’’ is too tentative to
permit a finding of a violation. No other facts concerning
Cohen’s responsibilities or title is known. The fact that
Cohen cited Respondent’s alleged policy as requiring 2
weeks’ notice is only evidence that Cohen was familiar with
Respondent’s rules. Another employee could also be aware
of such a rule.
Respondent’s Defenses
Respondent asserted several affirmative defenses in its an-
swer.
Respondent asserted that its position as to the April 17,
1991 strike was the same as that expressed to the Union’s
president by letter dated June 6, 1991, in response to the
Union’s later expressed intention to strike, in June 1991.
In that letter, which was attached to Respondent’s answer
and therefore received in evidence, Respondent, having re-
ceived notice from the Union that it intended to strike, pick-
et, and engage in other concerted activity at all of Respond-
ent’s sites in mid-June 1991, objected to the strike because,
inter alia, it was dangerous to its clients, and that ‘‘meaning-
ful negotiations’’ had not been attempted by the Union with
Respondent. The letter further stated that the Union had erro-
neously implied that an impasse had been reached in negotia-
tions.
I conclude that this defense is irrelevant to the complaint
allegations. The complaint alleges certain illegal threats to
employees if they engaged in a strike, and because they en-
gaged in the strike. Respondent’s affirmative defense that the
Union’s action in calling a strike was dangerous and in bad
faith, does nothing to controvert the complaint allegations of
the complaint. I therefore find that this affirmative defense
lacks merit.
Respondent’s second affirmative defense is that the allega-
tions are ‘‘de minimis.’’ I do not find the allegation found
to be unlawful to be de minimis. A threat to discharge an
employee because she intended to engage in a strike is not
de minimus.
Respondent’s third affirmative defense asserts that the
strike was an unprotected ‘‘partial’’ strike, within the mean-
ing of Machinists Local 76 v. Wisconsin Commission, 427
U.S. 132, 152–153 fn. 14 (1976). However, in that case the
Supreme Court held that a concerted refusal to work over-
time which did not violate the Act, could not be enjoined by
a state labor relations board. Respondent has not met its bur-
den of proving its affirmative defense, that the strike was not
concerted or unprotected.
CONCLUSIONS OF LAW
1. The Respondent, Sunnyside Home Care Project, Inc., is
an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2. Local 1199, Drug, Hospital and Health Care Employees
Union is a labor organization within the meaning of Section
2(5) of the Act.
3. By threatening its employees with discharge if they en-
gaged in a strike on April 17 and 18, 1991, Respondent vio-
lated Section 8(a)(1) of the Act.
4. Respondent has not violated the Act, as alleged in the
complaint, by threatening its employees with discharge be-
cause they engaged in a strike on April 17 and 18, 1991.
THE REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I shall recommend that it be ordered
to cease and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended3
ORDER
The Respondent, Sunnyside Home Care Project, Inc., Long
Island City, New York, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Threatening its employees with discharge if they en-
gaged in a strike on April 17 and 18, 1991.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Post at is facility at 43–31 39th Street, Long Island
City, New York, copies of the attached notice marked ‘‘Ap-
pendix.’’4 Copies of the notice, on forms provided by the
Regional Director for Region 29, after being signed by Re-
spondent’s authorized representative, shall be posted by the
Respondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to ensure that
the notices are not altered, defaced, or covered by any other
material.
(b) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
349SUNNYSIDE HOME CARE PROJECT
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 vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT threaten our employees with discharge if
they engaged in a strike on April 17 and April 18, 1991.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
SUNNYSIDE HOME CARE PROJECT, INC.