The Masonic and Eastern Star Home of the District of Columbia

National Labor Relations Board - Board Decisions

Oct 30, 1973

206 N.L.R.B. 789 (N.L.R.B. 1973)

THE MASONIC HOME 789
The Masonic and Eastern Star Home of the District of
Columbia and Local 1199 D.C., National 'Union of,
Hospital and Nursing Home Employees , Division of
Retail, Wholesale and Department Store Union,
AFL-CIO. Case 5-CA-5524
October 30, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND JENKINS
On November 17, 1972, Administrative Law Judge
Eugene E . Dixon issued the attached Decision in this
proceeding. Thereafter, General Counsel and Re-
spondent each filed exceptions and a supporting brief.
Respondent also filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended , the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order only to the extent con-
sistent herewith.
Unlike the Administrative Law Judge, we find that
the employees were engaged in a protected concerted
activity on March 7 , 1972,2 and that Respondent's
action in discharging them for that reason violated
Section 8(a)(3) and (1) of the Act. We further find,
contrary to the Administrative Law Judge, that the
strike which began on March 9 was to protest the
unlawful discharges of March 7 and hence was an
unfair labor practice strike from its inception and
Respondent 's refusal to reinstate the discharged and
striking employees upon their unconditional offers to
return to work on May 9 further violated Section
8(a)(3) and (1) of the Act.
The background facts , as more fully described by
the Administrative Law Judge , may be summarized as
follows: On October 21, 1971, the Union was certified
as bargaining representative of Respondent 's employ-
ees in a unit of nurses aides, orderlies , and housekeep-
ing employees . From mid-November 1971 to
February 26, 1972, the parties held four bargaining
' The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge . It is the Board's established policy not to overrule
an Administrative Law Judge 's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect . Standard Dry Wall Products, Inc., 91 NLRB 544,
enfd . 188 F.2d 362 (C.A. 3) We have carefully examined the record and find
no basis for reversing his findings.
2 Unless otherwise indicated, all dates are in 1972.
sessions in which the Union was represented by
Quinn, Muehlenkamp, and some 13 employee mem-
bers of a bargaining committee, and Respondent was
represented by, among others, its labor relations
chairman, Fowler. On February 26, the Union reject-
ed Respondent's last offer and the parties reached an
impasse, with the Union breaking off negotiations
and promising a strike in 10 days. By letter dated
March 3, Quinn advised Respondent that a strike
would commence at 7 a.m. on March 8. This letter
was not received until March 8. In the meantime, the
employees voted against the bargaining committee's
strike recommendation.
Concerning the confrontation which occurred on
March 7, the record indicates the following sequence
of events. At 6:50 a.m., 10 minutes before the 7 a.m.
shift began, Quinn arranged to meet with the.bargain-
ing committee and some of the incoming employees
at the Home for the purpose of discussing with
Respondent's representatives (1) Respondent's use of
German shepherd watchdogs, (2) Fowler's speech to
employees a few days earlier, and (3) the possibility of
returning to the bargaining table. Quinn entered the
infirmary lobby and was met by Fowler. Quinn told
Fowler that he wanted to protest Fowler's speech and
the use of the dogs. Fowler replied that Quinn was
trespassing and asked a security guard to eject him.
Quinn protested, saying that he was there as the offi-
cial spokesman of the employees' bargaining repre-
sentative' Fowler countered that the employees had
been "harassing the people" and invited Quinn to his
office where he showed Quinn a number of charts
allegedly showing that patients had been given unau-
thorized laxatives. Quinn disclaimed any knowledge
of this.
When Quinn and Fowler returned to the lobby a
few minutes after 7 a.m., Fowler asked the employees
in the delegation, all but one or two of whom were
scheduled to work the first shift, to get to work and
feed the patients. Some of the employees replied that
the patients were not fed at that time and that in any
event the food carts had not yet been brought down.
Fowler replied that, in that case, the employees should
leave. The employees answered that they wanted to
talk to him or someone from Respondent's board to
get some understanding about the dogs, Fowler's
speech, and about getting back to the bargaining ta-
ble. At this point, Fowler prevailed upon the group to
move from the infirmary lobby to a "nonpatient
area," the breezeway connecting the Respondent's
Home and infirmary. In the breezeway, Fowler told
the employees that, if they did not immediately go to
work, they would be discharged. Fowler then left.
When he returned to the breezeway a few minutes
later, he repeated his warning. Quinn protested and
206 NLRB No. 127
790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
again asked to discuss the matters in question. Fowler
refused, explaining that Respondent's board members
were scattered and could not be reached. According
to Quinn's testimony, "Fowler wouldn't give us a defi-
nite answer on anything" and asked whether the em-
ployees were going to work. By this time, at
approximately 7:30 to 7:45 a.m., all employees on the
7 a.m. shift had punched in on Respondent' s time-
clock. When Fowler was informed that the employees
would go to work when he talked to the delegation, he
responded by saying, "Then you are all fired," and
instructed the security officer to call the police.
Before the police arrived, Fowler and Ms. Craton,
Respondent's director of nurses, pulled the timecards
of all employees scheduled to work that morning who
were in the delegation. As Fowler called off each of
the names, Craton identified the employee to Fowler
who told the employee she or he was fired. When he
came to Ms. Taylor, Craton said, "Mrs. Taylor you
are scheduled off today" and asked why she was pre-
sent. Taylor replied that she was with her coworkers,
whereupon Fowler said, "Well, then you are fired,
too." When Fowler called Lawrence Dougall's name,
someone in the delegation said he had not yet arrived.
Fowler thereupon said, "That is too bad. He is fired,
too." Quinn and the employees left the premises a few
minutes past 8 a.m. when the police threatened to
arrest them for trespassing.
Two days after this confrontation, on March 9, the
Union established a picket line at Respondent's
Home with signs reading, "Locked Out" and "Mason-
ic and Eastern Home Fires Workers." Also on March
9, Respondent discharged employee Sham Sud Deen.
On May 9, the Union made an unconditional offer on
behalf of 38 named employees to return to work. The
offer was declined because, according to
Respondent's brief, the strikers had all been perma-
nently replaced.
1. Unlike the Administrative Law Judge, we are of
the opinion that the employees were engaged in pro-
tected concerted activity on the morning of March 7.
They claimed to be pursuing genuine grievances con-
cerning Fowler's speech and the use of German shep-
herd dogs. The Administrative Law Judge does not
appear to have believed that they were, but apparently
only because he seems to find that such grievances
were without merit. The law is, of course, that concert-
ed activity in support of grievances ultimately found
to be without merit is as privileged as the pursuit of
more soundly based grievances.
It has long been held that, in the absence of an
established grievance procedure, the conduct of a
group of employees in stopping work and concertedly
presenting a grievance concerning terms and condi-
tions of employment is within the protection of the
Act and that the discharge of employees for partici-
pating in such work stoppage violates Section 8(a)(1)
and (3) of the Act.3 But even if, as the Administrative
Law Judge below found, it was the intention of the
Union to produce a confrontation-by which we as-
sume he meant a brief work stoppage engaged in by
some of the employees at an inconvenient time for the
Employer-we would reach the same conclusion. For
the purpose of such a stoppage was clearly to bring a
form of economic pressure on the Employer in sup-
port of the Union's bargaining position. The employ-
ees here had rejected the notion of a full-scale strike,
and it may be, as the Administrative Law Judge
found, that Quinn decided to utilize the complaints
about the dogs and about Fowler's speech to induce
some of the employees to engage in this lesser form of
economic pressure-a brief absence from their du-
ties-as a strategic move in the then stalemated nego-
tiations. But if this was the real purpose of the
concerted activity, it is also protected-a factor which
the Administrative Law Judge seemed to overlook.
Thus the concerted activity, whether in support of
grievances or as a means of bringing economic pres-
sure to support the flagging negotiations, must be held
protected unless it is found to be of a type which
Fansteel4 and like cases have held to be beyond the
pale of legitimate protest.
In that connection, we must apply the same stan-
dard of conduct to the Respondent as we do to other
employers within our jurisdiction. We are aware that
the resort to collective action by the employees in a
business such as that of the Respondent exerts unusu-
al pressure because of the need for the employer's
customers or clients to have uninterrupted service.'
However, protection of the Act will not be denied
merely because someone not directly affected by the
controversy might consider the work stoppage to be
ill-timed, unreasonable, or showing poor judgment .6
The evidence here does not show conduct paralleling
that in Fansteel, nor even paralleling that in Pepsi-
Cola,' where there was a sitdown in a production area.
3 N.L.R. B. v. Kennametal, Inc., 182 F.2d 817, 818 (C.A. 3), enfg. 80 NLRB
1481.
4 N.L.R. B. v. Fansteel Metallurgical Corporation, 306 U.S. 240.
5 Laura E. Weber, d/b/a Weber Nursing Homes and d/b/a Pleasant View
Rest Home, 194 NLRB 426, 430; Nursing Centers, Inc., d/b/a/ Three Foun-
tains Nursing Center, 184 NLRB 294 (Conclusions).
6 Sec. 9(a) of the Act provides that any individual employee or a group of
employees shall have the right at any time to present grievances to their
employer . Employees may avail themselves of this right notwithstanding the
fact that a union has been certified as their collective-bargaining agent. See
N.L.R. B. v. R. C. Can Company, 328 F.2d 974, 978-979 (C.A. 5, 1964), enfg.
140 NLRB 588.
7 In so holding, we do not agree with the Administrative Law Judge that
a standard of conduct different from that of Pepsi-Cola Bottling Co. of Miami,
Inc., 186 NLRB 477, enfd. 449 F.2d 824 (C.A. 5, 1971 ), cert. denied 407 U.S.
910 (1972), is applicable in the case of nursing homes, because protected
activities might "disturb" the patients . Chairman Miller, while finding the
violations herein, would distinguish these facts from Pepsi-Cola, supra, in
THE MASONIC HOME
Here a gathering of employees took place in a semi-
public area-the lobby-and when requested to move
to an area where there would be no disturbance of
patients, the employees peaceably moved to the
breezeway. There is no reliable evidence that their
presence in the breezeway in any way endangered the
health and safety of the patients. Indeed, the facts
show that the breezeway was not contiguous or adja-
cent to any of the guests' rooms. Accordingly, we
conclude that the activity was protected and that the
exceptions of Fansteel do not apply.
Based on the foregoing, we find that Respondent
violated Section 8(a)(3) and (1) of the Act by discharg-
ing the following employees on March 7 because they
engaged in protected concerted activity:
Vera Bourne Genevieve Robinson
Edward Clayton, Irene Sobban
Alberta Colbert Phyllis Sookermany
Delores Heard Ruth Taylor
Eva Jacobs Betty Tibbs
Roberta King Millie Ann Toney
Doris Kyle Annie Wilcher
Betty C. Prather Leola Williams
Lawrence Dougall s
2. We also find, contrary to the Administrative
Law Judge, that the strike which began on March 9
was caused by and intended to protest the unlawful
discharges described above. The causal connection
between the discharges and the strike is, in our opin-
ion, clearly established by the timing of the strike and
the legends appearing on the picket signs.9 According-
ly, we conclude that the strike was an unfair labor
practice strike from its inception and the strikers were
entitled to reinstatement to their former or substan-
tially equivalent positions within 5 days after they
unconditionally offered to return to work.
3. We agree with the Administrative Law Judge's
which he partially dissented, since here the confrontation which led to the
employees' discharges took place in a nonwork area (the breezeway) and did
not preclude the Respondent from continuing its operation. In Pepsi-Cola,
on the other hand, the employees sat down in a work area, preventing
continuation of operations, and steadfastly refused to leave the plant despite
the employer's repeated entreaties . Moreover , the Respondent 's express rea-
son for discharging the employees in the present case was not for any alleged
trespass or sitdown strike , but for not going to work . This, Respondent may
not do.
8 The Administrative Law Judge found that , because Dougall's timecard
was punched out at 8 a.m on March 7 (unlike the cards of the other employ-
ees who were discharged that morning), Dougall was not discharged but
voluntarily decided to leave with the others . Despite the discrepancy with
regard to his timecard , the record indicates that Fowler called Dougall's
name and said that he, too , was fired. We find, therefore , contrary to the
Administrative Law Judge, that Dougall was among the employees unlawful-
ly discharged on March 7.
9 The fact that the Union had earlier threatened an economic strike to
begin on the morning of March 8 does not alter our conclusion , for the
employees had voted against such strike before the March 7 confrontation
and were, in fact , then attempting to secure a resumption of collective bar-
gaining.
791
finding that employee Abdul-Hakeem Sham Sud
Deen, was discriminatorily discharged on March 9
because of his union activities and sympathies.10 We
also agree with his finding that the record fails ,clearly
to establish that employees Pruitt and Holland, who
were not present at the March' 7 confrontation, were
subsequently discriminatorily discharged in tele-
phone conversations with Craton. It is clear, however,
that both refused to cross the picket line at the Home
on and after March 9 and, hence, became unfair labor
practice strikers on that day.
However, contrary to the Administrative Law
Judge, we find that Respondent's offer of reinstate-
ment to Deen, made on April 19, was conditioned on
Deen abandoning the unfair labor practice strike.
Similar offers were also extended to Pruitt and Hol-
land, conditioned upon their abandoning the strike.
As these offers were therefore not unconditional of-
fers of reinstatement, they do not toll Respondent's
backpay obligation to these employees.
4. We agree with the Administrative Law Judge's
finding, based essentially upon his credibility resolu-
tions, that Respondent independently violated Sec-
tion 8(a)(1) of the Act when Craton, during the
contract negotiations, accused Deen of acting as a spy
for the Union.
THE REMEDY
Having found that Respondent has engaged in and
is engaging in certain unfair labor practices affecting
commerce, we shall order that it cease and desist
therefrom and take certain affirmative action in order
to effectuate the policies of the Act.
Having found that Respondent discriminatorily
discharged certain employees on March 7 and March
9, 1972, and refused to reinstate them upon their un-
conditional offers to return to work, we shall order
that Respondent offer said employees immediate and
full reinstatement to their former jobs or, if those jobs
no longer exist, to substantially equivalent positions
without prejudice to their seniority or other rights and
benefits, dismissing, if necessary, any replacements
hired, and make them whole for any loss of earning
which they may have suffered by virtue of the discri-
mination against them by paying to each a sum of
money equal to the amount which each would nor-
mally have earned from the date of discharge to the
date of Respondent's offer of reinstatement, less inter-
im earnings.
10 Since we have found that the strike which began on March 9 was to
protest the unlawful discharges of March 7 and, hence, was an unfair labor
practice strike from its inception, we find it unnecessary to pass upon the
Administrative Law Judge 's finding that the strike was converted to an unfair
labor practice strike by Respondent's additional discriminatory discharge of
employee Deen on March 9.
792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Having further found that Respondent discrimina-
torily failed and refused to reinstate certain unfair
labor practice strikers upon their unconditional offers
to return to work on May 9, 1972, we shall order that
Respondent offer said employees immediate and full
reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions
without prejudice to their seniority or other rights and
privileges, dismissing, if necessary, any replacements
hired, and make them whole for any loss of earning
which they suffered by virtue of the discrimination
against them by paying to each a sum of money equal
to the amount which each would have earned from
May 14, 1972, (5 days after the date of their uncondi-
tional offers to return to work) to the date of
Respondent's offer of reinstatement, less interim
earnings.
The foregoing backpay is to be computed in the
manner provided for in F. W. Woolworth Company,
90 NLRB 289, with interest at the rate of 6 percent per
annum as provided for in Isis Plumbing & Heating
Co., 138 NLRB 716.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that the Respondent, The
Masonic and Eastern Star Home of the District of
Columbia, Washington, D.C., its officers, agents, suc-
cessors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in the above-named
Union or any other labor organization by discrimina-
torily discharging employees, refusing to reinstate
them, or in any other manner discriminating against
them in regard to their hire or tenure of employment
or any term or condition of employment, except to the
extent authorized in Section 8(a)(3) of the Act.
(b) Accusing employees of being union spies.
(c) In any other manner interfering with, re-
straining, or coercing its employees in the exercise of
their right to self-organization, to form labor organi-
zations, to join or assist the above-named Union or
any other labor organization, to bargain collectively
with representatives of their own choosing, and to
engage in any other concerted activity for the purpose
of collective bargaining or other mutual aid or protec-
tion, or to refrain from any or all such activities, ex-
cept to the extent that such right may be affected by
an agreement requiring membership in a labor organi-
zation as a condition of employment, as authorized in
Section 8(a)(3) of the Act.
2. Take the following affirmative action which we
find will effectuate the policies of the Act:
(a) Offer the employees named below immediate
and full reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or other
rights and privileges, dismissing, if necessary, any re-
placements hired, and make them whole for any loss
of earnings each may have suffered by reason of
Respondent's discrimination against them by paying
to each a sum of money equal to the amount which
each would have earned from the date of discharge to
the date of Respondent's offer of reinstatement, less
interim earnings.
Vera Bourne Betty C. Prather
Edward Clayton Genevieve Robinson
Alberta Colbert Irene Sobban
Abdul-Hakeem Phyllis Sookermany
Sham Sud Deen Ruth Taylor
Lawrence Dougall Betty Tibbs
Delores Heard Millie Ann Toney
Eva Jacobs Annie Wilcher
Roberta King Leola Williams
Doris Kyle
(b) Offer the employees named below immediate
and full reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or other
rights and privileges, dismissing, if necessary, any re-
placements, and make them whole for any loss of pay
each may have suffered by reason of Respondent's
discrimination against them by paying to each a sum
of money equal to that which each would have earned
from the date of discrimination (May 14, 1972) to the
date of Respondent's offer of reinstatement, less inter-
im earnings, such backpay being computed on a quar-
terly basis plus interest at the rate of 6 percent per
annum.
Bernard Barnes Marsha Jones
Cora Barron Ruby Redwood
Oscar Bumbrey Drema Rogers
Archie Burris Callie Robinson
Veronica Charles James Robinson
Theresa Farfan Amy Shaw
Marcia Faxio Laura Smith
Kathleen Henderson Marian Veaney
Mary Johnson Joyce Holland
Daisy Jones Eva Trevino Pruitt
(c) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(d) Post at its Home in the District of Columbia
THE MASONIC HOME 793
copies of the attached notice marked "Appendix." tt
Copies of said notice, on forms provided by the Re-
gional Director for Region 5, after being duly signed
by Respondent's representative, shall be posted by
Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices
to employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any
other material.
(e) Notify the Regional Director for Region 5, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
11 In the event that 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."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage membership in or ac-
tivities on behalf of Local 1199 D.C., National
Union of Hospital and Nursing Home Employ-
ees, Division of Retail, Wholesale and Depart-
ment Store Union, AFL-CIO, or any other labor
organization, by discharging employees, or in
any other manner discriminating against them in
regard to their hire or tenure of employment or
any term or condition of employment.
WE WILL NOT accuse our employees of being
spies for the Union..
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their rights to self-organization, to
form labor organizations, to join or assist the
above-named Union, or any other labor organi-
zation, to bargain collectively through represen-
tatives of their own choosing, and to engage in
other concerted activities for the purpose of col-
lective bargaining or other mutual aid or protec-
tion, or to refrain from any or all such activities.
WE WILL offer the employees named below im-
mediate and full reinstatement to their former
jobs or, if those jobs no longer exist, to substan-
tially equivalent positions, without prejudice to
their seniority or other rights and privileges pre-
viously enjoyed, dismissing, if necessary, any re-
placements, and make them whole from the date
of their discharge for any loss of pay they may
have suffered as a result of our discrimination
against them.
Vera Bourne Betty C. Prather
Edward Clayton Genevieve Robinson
Alberta Colbert Irene Sobban
Abdul-Hakeem Phyllis Sookermany
Sham Sud Deen Ruth Taylor
Lawrence Dougall Betty Tibbs
Delores Heard Millie Ann Toney
Eva Jacobs Annie Wilcher
Roberta King Leola Williams
Doris Kyle
WE WILL offer the employees named below im-
mediate and full reinstatement to their former
jobs or, if those jobs no longer exist, to substan-
tially equivalent positions, without prejudice to
their seniority or other rights and privileges pre-
viously enjoyed, dismissing, if necessary, any re-
placements, and make them whole from May 14,
1972, for any loss of pay they may have suffered
as a result of our discrimination against them.
Bernard Barnes Mary Johnson
Cora Barron Marsha Jones
Oscar Bumbrey Ruby Redwood
Archie Burris Drema Rogers
Veronica Charles Callie Robinson
Theresa Farfan James Robinson
Marcia Faxio Amy Shaw
Kathleen Henderson Laura Smith
Daisy Jones Joyce Holland
Marian Veaney Eva Trevino Pruitt
All of our employees are free to become or remain,
or refrain from becoming, members of the aforesaid
Union or any other labor organization.
THE MASONIC AND EASTERN
STAR HOME OF THE
DISTRICT OF COLUMBIA
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive'
days from the date of posting and must not be altered,
defaced, or covered by, any other material.
794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Federal Building, Room 1019, Charles
Center, Baltimore Maryland 21201, Telephone 301-
962-2822.
DECISION
over nonprofit nursing homes. Nonetheless Respondent
contends that the Board should not take jurisdiction in this
case claiming that the facts here differ from the Drexel facts
lessening the impact here on commerce sufficiently to place
this case in that group of "non commercial-civic and reli-
gious" cases 2 where the Board has refused to assert jurisdic-
tion. I see no such difference and in any event (as
acknowledged by Respondent) I am bound by the Drexel
Home decision.
STATEMENT OF THE CASE
EUGENE E. DIXON, Administrative Law Judge: This pro-
ceeding, brought under Section 10(b) of the National Labor
Relations Act, as amended (61 Stat. 136) herein called the
Act, was heard at Washington, D.C., on June 6 and 7, 1972.
The amended complaint, dated May 30, 1972, and based
upon charges served on March 23, April 3, 13, 24, and May
26, 1972, was issued by the Regional Director for Region 5
on behalf of the General Counsel of the National Labor
Relations Board (herein called the General Counsel and the
Board). The complaint alleged that the Masonic and East-
ern Star Home of the District of Columbia, herein the Re-
spondent or the Home, had engaged in and was engaging
in certain specified unfair labor practices including the dis-
charge and failure and refusal to reinstate various named
employees because of the membership in, assistance to, or
activity on behalf of Local 1199 D.C., National Union of
Hospital and Nursing Home Employees, Division of Retail,
Wholesale and Department Store Union, AFL-CIO, herein
called the Union. The complaint alleged that the foregoing
conduct violated Section 8(a)(1) and (3) of the Act.
In its duly filed answer Respondent denied the commis-
sion of any unfair labor practices.
Upon the entire record I and from my observation of the
witnesses, I make the following:
FINDINGS OF FACT
I RESPONDENT 'S BUSINESS
Respondent was chartered in 1902 by a special act of the
United States Congress and at all times material herein has
been a charitable, nonprofit, nursing care home located in
Washington, D.C. In the course and conduct of its opera-
tions during the 12 months preceding issuance of the com-
plaint, a representative period, Respondent received in
excess of $970,000 in gross revenues per annum, including
monies received from social security payments, civil service
retirement benefits, and public assistance checks. During
the same period of time Respondent purchased supplies and
materials valued in excess of $50,000 from firms doing busi-
ness in the District of Columbia, which firms are engaged
in interstate commerce.
Contrary to Respondent's contention Respondent has
been at all times material herein engaged in commerce with-
in the meaning of Section 2(6) of the Act.
In its brief Respondent concedes that the Board in Drexel
Home Inc., 182 NLRB 1045 (1970) has asserted jurisdiction
i Respondent's unopposed motion to correct the transcript is hereby grant-
ed.
II THE LABOR ORGANIZATION
Local 1199 D . C., National Union of Hospital and Nurs-
ing Home Employees , Division of Retail , Wholesale and
Department Store Union , AFL-CIO, at all times material
herein has been a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
Background
On October 21, 1971, the Union was certified as bargain-
ing representative of Respondent's employees in a unit com-
posed of nurses aides, orderlies, and housekeeping
employees-a majority of whom were employed in the nurs-
ing department. From mid-November 1971 to February 26,
1972, four bargaining sessions took place at the Home.
These sessions usually began in midafternoon and lasted
several hours. The Union was represented by its officials,
Herbert C. Quinn and Robert Muehlenkamp, and some 13
employee members of its bargaining committee. Respon-
dent was represented by a group of people including its
Board Chairman George Allen, Sr., and E. Alfred Fowler,
chairman of Respondent's labor-management relations
committee, both of whom are local businessmen who act for
the Home on a^volunteer and largely uncompensated basis.
Allen's son, George Allen, Jr., also participated, acting as
Respondent's chief negotiator.
On February 26 the Union decided not to accept
Respondent's last offer and an impasse was reached with
the Union breaking off negotiations. At this time, according
to the undenied and credited testimony of Fowler, Union
Representative Quinn stated, "We are going to strike this
Home. We are going to tear this Home to shreds. We are
going to call a congressional investigation for everything
you have done; everything you are doing.... We are
going to bring the community and the Black Masons down
on you and we are going to put a ring around this Home that
no one-but no one-will cross. . . . We are going to strike
this Home in 10 days."
On cross-examination Quinn testified that he had made
no attempt to contact Respondent in any manner whatsoev-
er-orally or in writing-between the date of the impasse
and the ensuing 10-day period regarding the matter. This
testimony was shown to be incorrect. By letter dated March
2 Young Men's Christian Association, 146 NLRB 20, 22 (1964); United
States Book Exchange, Inc, 167 NLRB 1028 (1967); Sheltered Workshops of
San Diego, Inc., 126 NLRB 961, 964 (1960), The Wesleyan Foundation, 171
NLRB 124 (1968); and The First Congregational Church of Los Angeles, 189
NLRB 911 (1971).
THE MASONIC HOME
3 Quinn had written George W. Allen as follows:
Since last November the workers at Masonic & Eastern
Star Home have been attempting peacefully and coop-
eratively to negotiate a contract which meets their
needs.
The workers at Masonic & Eastern Star are demanding
wage raises which can bring them up to a decent stan-
dard of living, health insurance which can provide
these health care workers and their families with some
health care security of their own, and fringe benefits
which do justice to the service the workers provide. In
response to these just demands the Home has re-
sponded only with words and the minimal and insult-
ing proposals-including economic proposals which do
not even cover increases in the District's cost of living.
Your unjust and untenable position which ignores the
needs of the patients and workers at Masonic & East-
ern Star has now forced a situation where the workers
must leave their jobs in order to attain their rights.
We hereby inform you that the workers at the Masonic
& Eastern Star Home will strike the Home as of 7 a.m.,
Wednesday, March 8th.
This letter was not received by the Home until the afternoon
of March 8.
The March 7 Confrontation
Failing to secure strong enough rank-and-file support (al-
though the negotiating committee was practically unani-
mous in favor of strike action) no strike was officially called.
Nonetheless, on March 7 (the date of the orally threatened
strike) Quinn on prearrangement met with the bargaining
committee plus some others of the incoming shift of em-
ployees at 6:50 that morning at the Home for the purpose
(according to Quinn) to discuss with the Home three mat-
ters: (1) the use of German shepherd watchdogs (2) a speech
made by_Fowler to the employees a few days earlier 3 and
(3) an attempt to get the parties back to the bargaining table.
Here is Quinn's version of what happened on the morning
of March 7: He was met by Fowler in the lobby of the
building known as the infirmary which houses the sick
guests (as the occupants of the Home are known) 4 and told
Fowler that he wanted to talk to Fowler about the speech
and about the dogs. Fowler replied that Quinn was trespass-
ing and asked the security guard to put him out. Quinn
protested that he was there as the duly certified bargaining
representative spokesman of the employees. Fowler count-
ered with something about the employees "harassing the
people" and invited Quinn into the office of the director of
3 On cross-examination Quinn admitted that he was surprised to find
Fowler at the Home on this occasion but testified that he expected to find
Allen (which one not specified) there-at 7 a .m.-on the day before the strike
which was threatened in the above letter.
4 On cross-examination Quinn admitted that he and his committee had
gone into the infirmary for the express purpose of getting "additional sup-
port" for his expected meeting with management.
795
nurses where he showed Quinn some 14 charts involving
patients that had been given unauthorized laxatives by em-
ployees who were in the Union's delegation. Quinn re-
sponded that he did not believe it.
When Quinn and Fowler came out of the office into the
lobby again, Fowler asked the employees to go to work and
feed the patients.5 Someone said that the patients were not
fed at that time (it was about 7 or a minute or two after) 6
and besides the food carts were not down yet. Fowler's reply
was, "In that case you should leave." The employees' an-
swer was that they wanted to "talk to . . . either him or
some one from the Board to get some understanding about
the meeting he had called . . . whether (they) were going to
be able to get back to the (bargaining) table, and to get the
dogs." Fowler prevailed upon them to move to the breeze-
way.' They did.
In the breezeway "Fowler informed all the people in the
delegation that they should go to work immediately or they
would be terminated" and then walked off. A "couple of
minutes" later Fowler returned B and, according to Quinn's
testimony, stated, "Mr. Quinn, you know you are trespass-
ing. You should leave immediately. The people should go to
work. If they do not go to work immediately, they will be
fired." When Quinn protested that he wanted to talk to
Fowler "or somebody" Fowler's position, according to
Quinn, was as follows:
He made the statement that the Board members were
scattered. He did not know where he could get them
together and he was not going to talk to me about it.
He wouldn't give us any definite answer on anything.
At that time he asked me were the people going to
work. All of the people there in the delegation-we will
go to work when you talk to us. This was the statement
I made. He said, then you are all fired. You are all fired
and you are trespassing. We are calling the metropoli-
tan police. He asked the security guard, Mr. Flowers,
to call the metropolitan police and have the people
arrested. At that time, he went to Mrs. Craton. He
asked Mrs. Craton who all in the delegation was sup-
posed to be working. Mrs. Craton went and pulled all
of the timecards on the rack and got the schedule. She
started calling off names and Mr. Fowler evidently not
knowing the people, would ask her to point out or
indicate who the person was in the delegation that
fitted the name she called. This she did. She called off
the names and he would say, "Is she here?" And she
Except for one or two all those present were scheduled to work the day
shift starting at 7 a.m. A couple of the employees had punched in prior to
Quinn's arrival; the rest punched in at various times ranging from 6:51 a.m.
to 7.27 a.m.
6 The change in shifts occurred at 7 a in.
r The breezeway was a covered connecting passage between two buildings
described by Quinn correctly as a "non-patient area"-one being the Home
itself and the other the infirmary. Unlike the Home and the lobby of the
infirmary the breezeway was not contiguous or adjacent to any of the guests
rooms
8 Quinn later testified (in agreement with Fowler's testimony) that Fowler
might have been gone on this occasion 15 to 20 minutes. He also testified that
Fowler's threat of discharge was first made in the lobby of the infirmary and
that it was made perhaps 6 to 8 minutes after 7 thus showing that the
confrontation between Fowler and the employees lasted over 15 minutes in
the infirmary lobby before they moved to the breezeway.
796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would say, "Yes, she is there." He called off most the
names in the delegation that are in the complaint. He
got to one name, Mrs. Taylor. Mrs. Craton said, "Mrs.
Taylor you are scheduled off today. You are not sup-
posed to be here. Why are you here?" She said, "I am
here because I am with my coworkers. I am here with
my coworkers." Mr. Fowler said, "Well, then you are
fired, too." And he said each worker was fired, he put
the card in his pocket. He would take the card from
Mrs. Craton and put it in his pocket.
... He called off the name of Lawrence Dougall and
some one in the delegation said he hadn't yet arrived.
He was just coming in the drive. Mr. Fowler said,
"That is too bad. He is fired, too." He put his card in
his pocket. Mr. Dugall came on in and went into the
other building. We don't know what was said.
Finally, according to Quinn's further testimony, the em-
ployees left the Home-after the police came and informed
them that they were trespassing. Quinn tried "to explain to
the lieutenant of the police department why (they) were
there and so forth." The lieutenant indicated that they had
been terminated 'and were no longer employees and asked
them "to leave or be arrested." Two days later, after trying
to get aid through Mayor Washington's office and Con-
gressman Fauntroy,9 the Union established a picket line
displaying among others signs reading, "Locked Out," and
"Masonic and Eastern Home Fires Workers."
There is no significant conflict in Fowler's testimony
about the March 7 confrontation as such.10 Fowler added
some undenied and credited details about which he testified
in part as follows:
I went up to Mr. Quinn and I said-Mr. Quinn,
the Home has very strict regulations regarding nonau-
thorized employees in the infirmary at this hour of the
morning. Mr. Quinn said, "Mr. Fowler, we are going
to sit right here until you negotiate with us." I said "Mr.
Quinn, as often as we have negotiated with you, you
should be well aware of the fact that these negotiations
have always been a full committee action, and that I,
as an individual, did not have the authority to negotiate
with you or anyone else."
We were all standing there in the lobby. Several words
were exchanged between Mr. Quinn and myself. Mr.
9 According to the testimony of Union Representative Robert Muehlen-
kamp in the meeting with Fauntroy, Fowler made the statement that there
was no union at the Home and that there would be no union and that he not
only made this statement once but three times. In his testimony Fowler
denied this . Muehlenkamp further testified , inconsistently in my opinion,
that Fowler also told Fauntroy that he would take up with his board of
directors Fauntroy's request that the Home resume negotiations with the
Union and "see if something could be worked out" adding that "he wasn't
very hopeful that they would want to get together with the Union and the
employees again." I credit Fowler here.
There was some discrepancy with respect to Fowler's action regarding
a couple of individuals as will be shown.
Quinn made reference to the dogs that we had em-
ployed with the security guards. I told Mr. Quinn that
in a very short period of time, I would say in the past
3 or 4 weeks, the Home had been broken into on three
different occasions and two of our employees had been
attacked while leaving their employment. I said these
dogs were put into service for the protection of our
employees and our guests. Absolutely, it had nothing
to do with the union activities. Mr. Quinn also men-
tioned a talk that I had given to the day shift on Satur-
day, the 4th of March. ,He characterized that talk as a
threat to a certain number of employees. I assured him
that it was not intended as a threat, but as a promise.
The nature of that talk was that I had received informa-
tion, documented information, from the infirmary that
several things-
Fowler then proceeded to describe a number of incidents
such as the jamming of plumbing, failure to change bed
sheets, failure to feed guests; and upsettingguests with strike
talk, as the subject of his speech in which he told the em-
ployees that if they had a grievance with management not
to take it out on the "poor, defenseless patients of the
Home." He further told them that if there were continued
reports of such activities they would have to terminate the
entire shift unless the guilty ones confessed.
According to Fowler's further credited testimony the em-
ployees were in the infirmary lobby 20-25 minutes before
moving 11 (because they were disturbing the guests) to the
breezeway where they remained until 8:08 a.m.-the time
that the police report (according to Fowler) indicated they
left the premises under threat of arrest. Fowler also denied
discharging Lawrence Dougall.
Conclusions on the March 7 Confrontation
The General Counsel contends that the Union's conduct
here is protected concerted activity under the Act and cites
Pepsi-Cola Bottling Co. of Miami, Inc., 186 NLRB 477 (and
cases relied on therein) as being closely analogous to the
case at bar. In that case, as here, the union had won an
election and was certified as bargaining representative of
the employees. As here the parties had "exchanged propos-
als and negotiated a few times." Then the employer dis-
charged six employees for engaging in a slowdown.
Thereupon some 97 employees demanded reinstatement of
the six dischargees and when the employer refused to com-
ply with the demand "the employees (according to the stipu-
lated evidence) refused to work, or leave the plant, and sat
down. They made no attempt to seize the plant or machin-
ery. Respondent contacted the police, who arrived a short
time later, and asked the employees to leave the premises.
The employees complied with this request . . . the employ-
ees did not engage in violence, or threats of violence, and
ii As they proceeded to the breezeway from the lobby they passed the
nurses' office where Fowler told Quinn that there were medical charts of 14
patients who had been given unauthorized saline laxatives and asked if
Quinn wanted to see them. Quinn was not interested. They also passed a
patient's room in which a stink bomb had been thrown the day before and
outside of which the patient's clothes were hanging on a clothes rack to air.
Fowler asked Quinn if he would like to smell the rack Quinn made no
comment.
THE MASONIC HOME 797
did not damage equipment. Upon leaving the premises, they
started picketing . . . with signs protesting the ... alleged
unfair labor practices."
Prior to their leaving the plant premises the employer
informed the 97 employees that they were discharged for
having engaged in an illegal sitdown strike under the Fan-
steel Doctrine, N.L.R.B. v. Fansteel Metallurgical Corp., 306
U.S. 240. A three-member panel of the Board (with Chair-
man Miller dissenting) upheld the Trial Examiner's Deci-
sion that the conduct of the 97 employees was protected
concerted activity and that their discharge for engaging in
it violated Section 8(a)(3) and (1) of the Act.
Respondent's position here is that the conduct in question
was unprotected and that the resulting discharges were le-
gal. I agree. Even assuming that the Union had a legitimate
grievance or collective-bargaining purpose in its early
morning confrontation (which, as will be seen, I believe that
the evidence disproves) I am of the opinion that the Pepsi-
Cola case is not dispositive here. The big difference, and the
one that in any event would rule out Pepsi-Cola as control-
ling, is the fact that here we are not concerned with an
manimate work product such as Pepsi but with people-
elderly (averaging in their 80's) and infirm people. It seems
to me that this factor requires a different standard of con-
duct on the part of the Union than in the Pepsi-Cola case
and the cases cited therein.
In any event, as suggested by Respondent, it appears to
me that "the sole purpose of Quinn's coming to the Home
at 6:50 a.m. with the day shift employees was to create a
confrontation in an attempt to solidify lagging union sup-
port among the employees. There had already been a series
of negotiating sessions , an impasse had been reached, and
the Union had announced a strike day, March 7. But a
general meeting of union members had disclosed a lack of
support among the employees . . . and something had to be
done to enlist support. The stage was thus set for the March
7 provocation." Quinn had already threatened to "tear the
Home to shreads." He also testified that he knew that the
7 a.m. mass meeting would involve a substantial interfer-
ence with the operations of the Home.
According to Quinn the purpose of the early morning
meeting was threefold-the dogs, Fowler's speech, and "the
possibility of getting back to the bargaining table." 12 That
he expected to find anyone at the Home at 7 a.m. to discuss
these matters is unbelievable particularly in view of the
letter Quinn had sent threatening a strike not on that day
but the following day. In any event, Quinn unexpectedly (by
his own admission) found Fowler on hand and within some
15 or 20 minutes got all the answers he could expect to his
questions. All of which occurred in the lobby of the infir-
mary adjecent to the patients' rooms.
Unlike the Court's opinion in Pepsi-Cola that there was
no immediate employer interest in getting the employees off
12 As for the dogs, one wonders what concern they were of the Union.
Fowler's speech seems questionable as a subject for discussion at that time
since Quinn did not expect to encounter Fowler that morning. And this
manner of initiating a discussion about returning to the bargaining table
would seem to have been a very odd aproach indeed in view of the fact that
the Union was the side that withdrew from the bargaining relationship, had
made no attempt to set up another meeting and had no reason to expect that
such an overture would be turned down.
the premises that outweighed the employees' right to present
their grievances, here there were some 18 persons congregat-
ed in a small area whose very presence was bound to cause
concern among the elderly patients. Nonetheless, it was
only after the police intervention (after the group moved to
the breezeway) 13 that the employees finally left the prem-
ises having first refused to go to work or to leave voluntarily.
In the circumstances here I find the Union's conduct
unprotected by the Act and that the discharges of those who
participated were not unlawful. There were 20 such employ-
ees named in the complaint as amended. Of these I find the
evidence to show that Callie Robinson, Daisy Jones, and
Lawrence Dougall were not discharged. As for Dougall, the
fact that his card was punched out at 8 a.m. (unlike the cards
of those who were discharged whose cards were not
punched out) would seem to support Respondent's testimo-
ny that he was not discharged but voluntarily decided to
leave with the others. Robinson worked on March 6, not on
7, 8, or 9, and then worked on the 10th and 11th. Jones did
not work after the 6th. Apparently all three assumed the
status of strikers.
The Other 8(a)(3) Allegations
Abdul-Hakeem Sham Sud Deen was an orderly in
Respondent' s nursing service whose work was praised on
the witness stand by Respondent's former director of nurs-
es, Sue L. Craton. He testified about several conversations
during the course of the union negotiations with Craton in
which the latter accused him of being a spy for the Union;
claimed that he was going out of his way "to make contact
with the various employees in the Home" and that she did
not want him to do this because the "negotiating" was not
his "responsibility"; that she had information that he was
a personal friend of Union Representative Quinn, and that
when the "union business" was over that it was not going
to come out the way he thought "because the Masonic and,
Eastern Star Home was much stronger than the Union."
On March 6 or 7 according to Sham Sud Deen's further
testimony, he was enjoying a 2-day excused absence during
which time he came down with a strep throat and stayed out
a third day. The following day he felt well enough to call in
and say that he thought he would be in to work that night
(he was on the night shift). He talked to a Mrs. Kallett about
which he testified as follows:
I called and said who I was and spoke to Mrs.
Kallett and I told her I felt better and I possibly would
be in tonight. Mrs. Kallett told me to wait just a minute.
Mrs. Kallett said to me-she said, I am sorry that you
were sick, but you have been fired. I said why have I
been fired. She said I don't know. I had heard Mrs.
Craton, who was sitting there, the directress of nursing,
tell Mrs. Kallett over the telephone-Mrs. Kallett said,
"Did you hear that?" I said, "Yes, I heard it." I'said,
"Do you know why?" She said, "I do not know why
you have been fired."
13 The fact that the employees moved to the breezeway and apparently
were going to make their stand there where they were not adjacent to the
guests' rooms does not in my opinion eliminate what I consider to be the
basic flaw in the Union's action , i.e., its possible adverse effect on the guests.
798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Eva Trevino Pruitt, a nurses aide (and member of the
bargaining committee) testified that she was off on March
7 (and was not present at the confrontation that day); that
she worked on March 8 but not on March 9. According to
Pruitt, on March 9 (the day the picket line went up) Craton
called her to see if she was coming to work. Pruitt did not
know. Craton asked why and Pruitt explained that her inde-
cision was based on the picket line. Craton told her that if
she "could make it through . . . that (she) could come to
work." Pruitt then continued her testimony as follows: Cra-
ton told her that everyone "that had attended the meeting
of the Union . . . didn't have a job any more" and asked
if she had attended. Pruitt said that she had attended two
meetings. Pruitt was then asked by Counsel if Craton was
telling her not to come to work and answered, "Well, in so
many words she said that everyone that had attended the
meeting for the Union didn't have a job any more. I (had)
attended the meetings . . . two of them. So, that means I
didn't have a job anymore."
Another of the General Counsel's witnesses, Joyce Hol-
land (a nurses aide and union member) testified that about
a week after she had been hired on August 1, 1971, by
Craton the latter called her into the office, told her that she
had heard her name being mentioned in connection with the
Union and asked Holland if she was "with the Union."
Holland, lying, told her that she had no connection with the
Union. Craton said "she was happy to hear that." Accord-
ing to Holland's further testimony, on March 7 she called
the Home and left a message with the pharmacist for Craton
that she would not be in because she thought there was
going to be a strike and she was not going to cross the picket
line. The following day about 2 p.m. Holland again called
the Home and asked Craton if her card had been pulled.
After checking, Craton confirmed that Holland's card had
been pulled. Holland asked why. Craton's explanation was
that Holland had not called in and that she "had attended
all the union meetings."
In her testimony Craton denied having had a telephone
conversation with Pruitt on the 9th about coming in to work
in effect asking what motivation she would have had in
calling Pruitt on the 9th when she had worked the day
before. Craton also denied telling Pruitt that anyone that
"attended the union meeting was fired." Also denied by
Craton in her testimony was Holland's testimony that in
August of 1971 Craton had had her in the office and asked
her about the Union. Craton also denied having had a tele-
phone conversation with Holland on March 8 or at any
other time regarding having pulled Holland's card. Accord-
ing to Craton, Holland worked on the 6th, "was absent on
the 7th, and never returned to work." Craton claimed that
no one had discharged Holland.
As for Sham Sud Deen's testimony, Craton admitted hav-
ing had several conversations with him about his conduct
as related to his work but denied repeatedly that any men-
tion was ever made in these conversations of the Union or
Sham Sud Deen's connection therewith. Indeed, at one
point Craton testified, ". . . I had no idea of his union
activities and don't now." Notwithstanding this point blank
denial of knowledge of Sham Sud Deen's interest in the
Union, a short time later Craton testified that either she was
told by one of the employees or overheard the employee tell
another employee, "I would like to be able to make up my
own mind and I wish that I didn't have to hear so much
about the Union from (Sham Sud Deen)." It is clear from
the foregoing that Craton was considerably less than candid
in her testimony. Another example of Craton's duplicity
appears in her testimony denying that Sham Sud Deen had
been discharged. Just a moment after so testifying she stated
that when Sham Sud Deen called in and talked to Mrs.
Kallett she told Kallett that someone had been hired in his
place and that this was the information given to Sham Sud
Deen. I credit the General Counsel's foregoing testimony in
its essentials as against the testimony of Craton.
Conclusions on the Independent 8(a)3 Allegations
On the basis of the foregoing I find that the preponder-
ance of the evidence clearly supports the allegation that
Sham Sud Deen was discharged because of his union activi-
ty in violation of Section 8(a)(3) of the Act. It is clear from
his credited testimony that any personal pursuits that he was
accused by Craton of following were largely those connect-
ed with his promotion of the Union. Having just had a
reduction in the working force of some 18 people it would
seem that Craton would hardly have been so quick to dis-
charge a good employee for a 1-day's absence because of
illness , unless she had some stronger motivation. In my
opinion that motivation was Sham Sud Deen's union activi-
ty-As for Pruitt and Holland I do not believe that their
testimony is of sufficient clarity and weight to establish that
they were actually discharged. With respect to Pruitt, Cra-
ton told her on the 9th that "if she could make it through"
to come to work. This certainly is inconsistent with a dis-
charge motivation. As for Holland, she had indicated in a
telephone call to the Home on the 7th that she "wasn't going
to cross the picket line." At no time thereafter did she at-
tempt to go to work.
In addition to the 8(a)(3) finding in connection with the
discharge of Sham Sud Deen, I also find that Respondent
violated Section 8(a)(1) by Craton's accusation to him that
he was a spy for the Union.
The Status of the Strike
On May 9, 1972, on behalf of the striking and discharged
employees (naming 38 of them), the Union made an uncon-
ditional offer to Respondent to return to work. As noted,
when the picketing started on March 9, there were signs
reading, "Masonic and Eastern Home Fires Workers," As
also noted, on March 9 Sham Sud Deen was informed that
he had been discharged, which discharge I have found was
discriminatory within the meaning of the Act and thus an
unfair labor practice by Respondent. From this it is clear
that the strike that began on March 9 was an unfair labor
practice strike, if not from its inception then from shortly
thereafter. As an unfair labor practice strike, of course,
Respondent was bound to honor the unconditional offer to
return to work of all those employees named in the Union's
offer of May 9 except those discharged for engaging in the
THE MASONIC HOME
unprotected activity as set forth above, and put them back
to work, replacing if necessary, anyone employed from the
commencement of the strike.
Regardless who is named in the complaint as being in-
cluded in the May 9 offer to return to work,14 I find that the
Union's letter to Respondent (which is in evidence) is con-
trolling here. Accordingly, from that letter I find the follow-
ing to have been entitled to reinstatement within 5 days
from the date of the letter as per Board practice: 15
Bernard Barnes Marsha Jones
Cora Brown Ruby Redwood
Oscar Bumbrey Drema Rogers
Archie Burris James Robinson
Veronica Charles Amy Shaw
Lawrence Dougall Laura Smith
Theresa Farfan Marian Veaney
Marcia Faxio Joyce Holland
Kathleen Henderson Eva Trevino Pruitt,
Mary Johnson
I find further, as alleged in the complaint, that Respon-
dent by its failure and refusal to reinstate the aforesaid
employees discriminated against them in additional viola-
tion of Section 8(a)(3) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations of Re-
spondent described in section I, above, has a close, intimate,
and substantial relation to trade, traffic, and commerce in
the several States and tend to lead to labor disputes burden-
ing and obstructing commerce and the free flow of com-
merce.
V. THE REMEDY
Having found that Respondent has engaged in and is
engaging in certain unfair labor practices affecting com-
merce, I shall recommend that it cease and desist therefrom
and take certain affirmative action in order to effectuate the
policies of the Act.
Having found that Respondent discriminatorily dis-
charged its ,employee Abdul-Hakeem Sham Sud Deen on
March 9, 1972, and further discriminated against its em-
ployees listed supra by failure and refusal to reinstate them
to their jobs upon their unconditional offer to return to
14 Some changes were made by amendment during the hearing.
15 Pepsi-Cola Bottling Company of Miami, Inc, supra
799
work, I shall recommend that Respondent offer said em-
ployees immediate reinstatement to their former or substan-
tially equivalent positions 16 without prejudice to their
seniority or other rights and benefits, dismissing, if neces-
sary, any replacement hired. I shall also recommend that
Respondent make all of the aforesaid employees whole
(Sham Sud Deen, from the date of his discharge, March 9,
1972, and the others from May 14, 1972, the date the dis-
crimination against them began) by payment to each of
them a sum of money equal to that which each would nor-
mally have earned, less net earnings from the dates of their
discrimination to the date of Respondent's offer of rein-
statement. Such backpay to be computed in the manner
provided for in F. W. Woolworth Company, 90 NLRB 289,
with interest at the rate of 6 percent as provided for in Isis
Plumbing & Heating Co., 138 NLRB 716. I also shall recom-
mend that Respondent post appropriate notices of compli-
ance with such order as the Board may issue.
In view of the nature of the unfair labor practices com-
mitted, the commission by Respondent of similar and other
unfair labor practices may be anticipated. I shall, therefore,
recommend that Respondent cease and desist from infring-
ing in any manner upon the rights guaranteed in Section 7
of the Act.
Upon the basis of the above findings of fact, and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAw
1. The Masonic and Eastern Star Home of the District of
Columbia at all times material herein has been engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
2. Local 1199 D.C. National Union of Hospital and
Nursing Home Employees, Division of Retail, Wholesale
and Department Store Union, AFL-CIO, at all times mate-
rial has been a labor organization within the meaning of
Section 2(5) of the Act.
3. By interfering with, restraining and coercing its em-
ployees as found herein in the exercise of rights guaranteed
by Section 7 of the Act, Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(1) of the
Act.
4. By discriminating against its employees as found
above Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(3) of the Act.
[Recommended Order omitted from publication.]
16 The Chase National Bank of the City of New York, San Juan, Puerto Rico,
Branch, 65 NLRB 827.