D & D Health Associates

National Labor Relations Board - Board Decisions

Apr 30, 1984

270 N.L.R.B. 181 (N.L.R.B. 1984)

D & D HEALTH ASSOCIATES
D & D Health Associates, Inc. and Diane Barczyk.
Case 7-CA-20431
30 April 1984
DECISION AND ORDER
BY MEMBERS ZIMMERMAN, HUNTER, AND
DENNIS
On 3 May 1983 Administrative Law Judge
Elbert D. Gadsden issued the attached decision.
The Respondent filed exceptions and a supporting
brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings, and
conclusions only to the extent consistent with this
Decision and Order.
We agree with the judge, for the reasons he
stated, that the Respondent discharged Diane Barc-
zyk because she applied for unemployment com-
pensation following a reduction in her working
hours. Relying on Self Cycle d Marine Distributor
Co., 237 NLRB 75 (1978); Krispy Kreme Doughnut
Corp., 245 NLRB 1053 (1979), enf. denied 635 F.2d
304 (4th Cir. 1980); and Air Surrey Corp., 229
NLRB 1064 (1977), enf. denied 601 F.2d 256 (6th
Cir. 1979), the judge concluded that Barczyk's ap-
plication for unemployment compensation consti-
tuted protected concerted activity and her dis-
charge violated Section 8(aXl) of the Act.
In our recent decision in Meyers Industries, 268
NLRB 493 (1984), we held that, for an employee's
activity to be deemed "concerted," it must be "en-
gaged in with or on the authority of other employ-
ees, and not solely by and on behalf of the employ-
ee himself." Id. at 497. In so holding, we overruled
Alleluia Cushion Co., 221 NLRB 999 (1975), and its
progeny, which held that the invocation of rele-
vant legislation by an individual employee without
the authority or assistance of other employees con-
stituted concerted activity.
Applying pre-Meyers law as noted, the judge
found that Barczyk's act of applying for unemploy-
ment compensation constituted protected concerted
activity. The evidence indicates, however, that
Barczyk engaged in this activity by and on behalf
of herself. Therefore, we conclude, for the reasons
fully set forth in Meyers, that Barczyk's conduct
does not constitute concerted activity within the
meaning of Section 7 of the Act and that her dis-
charge was not unlawful.
270 NLRB No. 30
ORDER
The complaint is dismissed.
MEMBER ZIMMERMAN, dissenting.
Diane Barczyk was discharged because she filed
a claim for unemployment benefits as permitted
under the Michigan Employment Security Act.
Consistent with my dissenting opinion in Meyers In-
dustries, 268 NLRB 493 (1984), I would find, as the
judge did, that Barczyk was engaged in concerted
protected activity and the Respondent's discharge
of her was violative of Section 8(aXl) of the Act.
Like the truckdriver in Meyers Industries, Barc-
zyk was asserting an employment-related statutory
right. The Michigan statute allowed an employee
whose hours had been reduced to apply for and re-
ceive unemployment compensation. The legislature
created that right for all employees who might find
themselves in a situation like Barczyk's with their
hours reduced from full time to half time. By statu-
tory decree Barczyk was entitled to the assurance
of compensation through unemployment benefits;
such assurance was an aspect of working condi-
tions for all employees covered by the statute. It is
reasonable to assume then that all employees cov-
ered by the statute supported Barczyk's right to
apply for unemployment compensation, a right
they also might choose to assert. The concerted
nature of Barczyk's action grows out of that sup-
port and places her within the protection of the
Act. The Respondent's discharge of her for assert-
ing a statutory right, therefore, merits the Board's
censure, not its indifference. I dissent.
DECISION
STATEMENT OF THE CASE
ELBERT D. GADSDEN, Administrative Law Judge.
Upon a charge of unfair labor practices filed on March
7, 1982, by Diane Barczyk, an individual and the Charg-
ing Party herein, against D & D Health Associates, Inc.,
herein called the Respondent, the Regional Director for
Region 7 issued a complaint on behalf of the General
Counsel on April 26, 1982.
The complaint alleges that the Respondent terminated
the Charging Party from its employ, and since that time
has failed and refused to reinstate the Charging Party to
her former position because the Charging Party filed a
claim for benefits with the Michigan Employment Secu-
rity Commission.
An order having extended time for filing an answer,
the Respondent filed an answer on December 20, 1982,
denying that it has engaged in any unfair labor practices
as set forth in the complaint.
A hearing in the above matter was held before me in
Detroit, Michigan, on February 16, 1983. Briefs have
been received from counsel for the General Counsel and
181
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
counsel for the Respondent, respectively, which have
been carefully considered.
On the entire record in this case and from my observa-
tion of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
D & D Health Associates, Inc., the Respondent herein,
is, and has been at all times material herein, a corpora-
tion duly organized under, and existing by virtue of, the
laws of the State of Michigan.
At all times material herein, the Respondent has main-
tained its principal office and place of business at 8033
East 10 Mile Road, Suite 103, Centerline Towers, Inc.,
Centerline, Michigan, herein called the main office.
Here, the Respondent is, and has been at all times materi-
al herein, engaged in providing physical therapy and aid
care to the public and to various nursing homes.
During the fiscal year ending October 31, 1981, which
is a representative period, the Respondent in the course
and conduct of its business operations performed services
valued in excess of $250,000. During the same period of
time, the Respondent purchased goods valued in excess
of $50,000 which were transported and delivered to its
main office in Centerline, directly from points located di-
rectly outside the State of Michigan.
The complaint alleges, the answer admits, and I find
that the Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background Facts
The Respondent provides physical therapy and aid
services in a tricounty area including Wayne, Oakland,
and Macomb Counties, Michigan, involving a radius of
50 miles. Currently the Respondent renders services in
about 3 or 4 facilities in Macomb County, 5 facilities in
Oakland County, and 11 or 12 facilities in Wayne
County. However, prior to January 1982, the Respond-
ent rendered services to the 12 facilities, some of which
were located in each of the 4 named counties.
The Respondent holds contracts with nursing homes,
convalescent centers, and other settings where people
need and request physical rehabilitation services. The
Respondent also provides physical therapy, occupational
therapy, speech therapy, and social work consultation. It
also provides some psychiatric social work counseling
and referrals by its owner and director Dorothy Roer.
To carry out its business operations, the Respondent
employs a number of personnel including physical thera-
pists and aides to physical therapists. Aides assist the
physical therapist in preparing for hot packs, special
toweling to prevent injury to particularly aging skin, and
to assist in exercising limbs of patients as specified in an
exercise plan prescribed by the therapist. The aides also
assist in gait training, wheeling patients from one point to
another in facilities, and cleaning the whirlpools after
they are used. Physical therapists are licensed in the
State of Michigan but aides are not. Aides are given a
training course upon being employed by the Respondent
which involves classroom instruction during the last 2
hours of the day for several weeks. The aides are paid
for the whole day while they are in training and they are
also paid for mileage in traveling to and from facilities to
perform their work. I
B. Barczyk's Employment Tenure with Respondent
In July 1981, Diane Barczyk, whose last name by mar-
riage since the past 7 months is Janco, was employed by
the Respondent as a physical therapist aide. At the time
she was hired, physical therapist and director of educa-
tion, training and placing of aides Jane Maczei testified
that she tells all new employees, including Barczyk, that
there is a chance they may be relocated or reassigned to
where they are needed to work. She said she tells them
the Respondent can never guarantee them full-time work
but they try to provide them with full-time work. Barc-
zyk denied that Director Maczei ever told her the job of
an aide was part time and Barczyk always considered
her job full time. In this regard Barczyk testified that she
commenced work at 8:30 a.m. and worked 35 to 40
hours a week after she completed training. The record
(G.C. Exhs. 2 and 5) shows especially for the months
September, October, and November 1981 that Barczyk
worked between 35 and 40 hours per week. 2
The record shows without dispute that early in her
employment (about September or October 1981) Barczyk
was given an assignment by Director Maczei at a facility
located in a high crime section of the Cass Corridor area
of Detroit, which she refused to accept because of the
high crime rate. Barczyk stated she thought the facility
was the Ambassador but Director Maczei as well as Ad-
ministrator Roer testified that the Respondent did not
have an account with the Ambassador Nursing Home at
that particular time. I credit the Respondent's witnesses
in this regard but I do not deem the testimony of Barc-
zyk as having been intentionally untruthful or mislead-
ing. Rather, if her name of the facility is in fact wrong, I
am persuaded that Barczyk was mistaken with respect to
the correct name of the facility. I also deem such mistake
in this respect insignificant, in that both Barczyk and the
Respondent's managerial witnesses did not deny that
there was a nursing home located in a high crime area
which appears to have been in the Cass Corridor. Ad-
ministrator Roer testified that she was advised by Direc-
tor Maczei about Barczyk's refusal to accept that par-
ticular assignment and expressed her preference not to
'The facts set forth above are undisputed and are not in conflict in the
record.
' I credit Director Maczei's account of what she told newly employed
aides, including Barczyk, about the weekly volume and location of work.
However, it is particularly noted that while Director Maczei said the Re-
spondent could not guarantee full-time work, she also said the Respond-
ent would be trying to do so. Since it may be reasonably inferred from
the latter statement that the Respondent was providing a job for aides
which, for the most part, would be full time, but employees were being
alerted, in truth, that there would be weeks when they would not work
all 40 hours. Under these circumstances, I also credit Barczyk's testimony
that the Respondent did not inform her that her job was part time. More-
over, Barczyk's hours of work record (G.C. Exhs. 2 and 5) supports this
conclusion since she worked several 40-hour weeks, and many weeks
over 33-35 hours.
182
D & D HEALTH ASSOCIATES
work in high crime areas of Detroit. However, both Di-
rector Maczei and Administrator Roer testified that the
Respondent agreed to accommodate Barczyk's wishes in
not assigning her work in the Detroit area, but rather, by
assigning her to facilities at other locations. They both
agree that even though Barczyk had expressed her prefer-
ence not to work in the Detroit area, she nevertheless
had in fact accepted and worked assignments in the De-
troit area; and that the early refusal by Barczyk to
accept an assignment in Detroit was the only such refus-
al by her.
However, during the first week in December 1981,
Barczyk's hours of work were reduced by the Respond-
ent to approximately one-half the amount of hours she
normally worked, as a result of a decrease in the work-
load at one of the facilities where she worked (Abby
House). During the week of December 7, Barczyk went
to the main office where she discussed her reduction in
working hours with the Respondent's administrator
Dorothy Roer. She told Mrs. Roer she needed more
work because she needed the money. According to Barc-
zyk, Roer told her "at the moment," there was no place
to assign her, that she would "just have to wait" for
more work. According to Roer, she discussed Barczyk's
reduced working hours with her and advised her "work
might be available, but it would probably be in Detroit."
She said Barczyk replied that her father did not want her
working in Detroit and Roer told her she would try to
accommodate her situation, but she had no control over
where the work was, and if Director Maczei had more
work it would probably be in Detroit.3
Subsequently, Barczyk filed an application (G.C. Exh.
3) with the Michigan Employment Security Commission
(MESC) for unemployment compensation on December
14, 1981. Barczyk testified that she told the clerk at
MESC that her working hours had been reduced from
35-40 hours per week to 18-21 hours per week. She
stated that she did not tell the agent that she was a part-
time employee because she considered herself a full-time
employee. At that time a clerk of the MESC wrote on
Barczyk's application in ink "underemployed." In a doc-
ument distributed by the MESC describing rights and re-
sponsibility under the Michigan Employment Security
Act (G.C. Exh. 4, p. 11, item 6) "unemployed" is defined
as follows:
This means that you did not work at all during the
week for which you are claiming benefits or, if you
worked part-time, your total earnings (not just take-
home pay) were less than your weekly unemploy-
ment rate.
Barczyk further testified without dispute that after she
filed her application with MESC she discussed it with
physical therapist Chuck Ekiert on one occasion and
with Sally, who works in the office, on another occasion
I Since neither Barczyk nor Roer disputed the testimonial account of
the other, and since their respective accounts are not necessarily incon-
sistent or in conflict with each other, I credit both accounts because I
was persuaded by their demeanor a well as all the evidence of record
that they were testifying truthfully in this regard.
when she was requesting a copy of her working hours to
complete her application with MESC.
Administrator Roer acknowledged that she received a
form entitled "Request of Employer for Wage and Sepa-
ration Information" from the MESC dated December 17,
1981 (R. Exh. 2), and she immediately thought that Barc-
zyk was resigning from the Respondent's employ since
she filed for unemployment compensation. She thereupon
wrote a note on the bottom of the form (G.C. Exh. 2) as
follows: "Please note: This employee is still employed by
us, her hours were reduced as workloads fluctuate.
There is no reason for her to obtain unemployment bene-
fits at this time. Please note employee is not therapist but
aide."
At the time she completed the form (R. Exh. 2) and
returned it to MESC, Roer testified that she was un-
aware of any such thing as "underemployment."
C. Respondent Treated Barczyk's Application for
Unemployment Compensation as Resignation from
Respondent's Employ
At approximately 5:30 p.m. on January 29, 1982, Barc-
zyk testified that she was called at home by Administra-
tor Roer who said she was calling to let her know that
her filing for unemployment compensation was her resig-
nation, and that Roer's attorney had advised her to get
rid of her because the Respondent's insurance would go
up as a result of the application for unemployment bene-
fits. She asked Roer if she had done anything wrong and
Roer replied, "No." Barczyk informed Roer that she had
filed because her hours had been cut and she needed the
money. She was upset and her father took the telephone
and tried to explain to Roer and she repeated to him
what she had said to Barczyk. When Barczyk got back
on the telephone Roer hung up.
Barczyk decided to call Roer 30 minutes later, this
time using a tape recorder, to hear Roer confirm what
she had told her during their prior telephone conversa-
tion. Their conversation continued as follows (R. Exh.
1(a)--b)):
Diane: Um, I was just wondering if you could
confirm what you had said earlier to me about what
I had asked you about if I had done anything
wrong and you said no I wanted you to understand
Dorothy: Well I tell you Diane, you know I've
had various reports over the time that you've been
working with us, but I've always felt that I've
wanted to continue giving you a chance, I like to
give people a chance when I can. But you know
we've been getting reports at Abbey that you ah ah
weren't at the vacility [sic] that you were sitting &
smoking in the main lobby & things like that
Diane: No, that was I was already off work and
waiting for my car because I could not get it started
Dorothy: Okay, but if you've noticed I've never
pointed these things out anyway because I've
always felt though that there was a reasonable
answer to these things you know and that's you
know, that's the way it is so that your [sic] not
183
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
being dismissed as I said I'm accepting your resigna-
tion based on what, what it is that has hit my desk
and I have [sic] to stick to the guns on that
Diane: Could you explain what that is cause I
really don't understand it
Dorothy: Okay, I got a notice saying that you ap-
plied for unemployment and I got some more notices
saying I have to go to a hearing because your [sic] ap-
plying for unemployment and therefore I assume that
you have resigned and I accept your resignation and
that's what it is
Diane: Okay well I did not resign
Dorothy: Well I can only tell you what I have
here dear and what I have to go by
Diane: And what about like what you said about
the attorney and something about
Dorothy: My attorney told me that when I get that
kind of a thing in the mail and that kind of employee
has filed for unemployment and that the employee ob-
viously does not wish to continue working
Diane: I did not resign!
Dorothy: I'm sorry Diane I didn't do it you did
it I didn't
Diane: Yeah, but I did not resign
Dorothy: Well you should have discussed it with
us first then
Diane: Well I'm gonna let you know that I did
not resign, I did not quit
Dorothy: Well I accepted it as your resignation, I
got hear [sic] onthis desk about 28 pieces of paper
that I've got to spend theweekend filling out now.
It tells me that you are collectingand want to col-
lect unemployment and therefore
Diane: It is under
Dorothy: And I assumed that you resigned
Diane: No, it is
Dorothy: Diane, please I have 2 more people
standing here
Diane: Dorothy please please let me say one
thing.
Dorothy: I'm sorry please excuse me I do have
to go I have accepted what you have done
Diane: Can I say one thing please. Okay I am let-
ting you know that I did not quit and I will be re-
porting to work on Monday & also
Dorothy: I am letting you know that you are not
reporting to work on Monday
Diane: Yes I aml
Dorothy: I am letting you know that you are not
reporting to work and that I accepted your resigna-
tion
Diane: But I did not resign!
Dorothy: I am Hey
Diane: You have nothing in paper and I am
saying right now that I did not resign!
Dorothy: Hey Diane Barczyk, Aah this is my
company and I am telling you that I am accepting
your resignation
Diane: You cannot tell me that I resignedl
Dorothy: I am telling you that I'm accepting
your resignation Do not report to work because I
have accepted your resignation, thank you and
good night. [She hung up.]
Barczyk explained that the smoking incident to which
Roer referred occurred when she was off duty and in the
lobby, but not near the oxygen where smoking is prohib-
ited.
Roer testified that she knew from the time Barczyk
was hired that she preferred not to work in Detroit. She
acknowledged that Barczyk accepted work assignments
in Detroit (Hamtramck) but it was not certain areas in
Detroit where there was significant physical and social
deterioration where she preferred not to go, and the Re-
spondent did not assign her to such areas. She said Barc-
zyk was flexible.
Roer admitted on cross-examination that Barczyk told
her she was not resigning but she nevertheless told her
she was accepting her resignation.
Subsequently, in a letter dated February 4, 1982, ad-
dressed to MESC, the Respondent advised as follows:
Gentlemen:
We are in receipt of your letter of February 1, 1982
were [sic] you have allowed unemployment com-
pensation to Diane Barczyk. We want to unequivo-
cably contest this decision since we have now and
have had sufficient work for Miss Barczyk but she
chose not to go to work in Detroit in the nursing
homes where we had work. It was made very clear
to Miss Barczyk upon being hired that aides are to
go wherever they were needed and she agreed to
this when she accepted the position.
In another letter dated February 9, 1982 (G.C. Exh. 6),
addressed to MESC, the Respondent advised that Barc-
zyk resigned from the Respondent when she refused to
work in those locations where she was needed; that the
Respondent accepted her request for underemployment
as the specific decision from her that she did not want to
work for the Respondent. Barczyk informed her supervi-
sor that she did not want to go to Detroit, where the Re-
spondent needed her and therefore the Respondent took
her refusal to work and her filing for unemployment as a
resignation.
In a final letter dated March 5, 1982, addressed to the
MESC, the Respondent again advised as follows:
Gentlemen:
In response to your letter dated February 16, 1982 I
wish to repeat again to you that Diane Barczyk quit
on her own volition. She did not want to work at
the nursing homes where we had the work and she
filed for unemployment. She said her father would
not allow her to go to our Detroit Homes.
Finally Roer testified that she learned what underem-
ployment meant sometime between January 29 and Feb-
ruary 9, 1982. After she learned this, she said her reac-
tion was that the Respondent does not offer full-time em-
ployment to anyone because it cannot do so. There was
no lack of work with the Association, but only lack of
work in certain geographical areas, because at that time
184
D & D HEALTH ASSOCIATES
Director Maczei was adding two aides in the Detroit
area facilities.
Analysis and Conclusions
On the credited evidence summarized under topic B, I
conclude and find that since therapist aide Barczyk did
not have work for 40 hours each week but nevertheless
worked several 40-hour weeks, and several 35-or-more-
hour weeks before her work hours were reduced, her job
with the Respondent was full time, and not part time in
character.
Early in her employment, Barczyk made the Respond-
ent aware that she preferred not to work in high crime
rate areas of Detroit, and she refused to accept one such
assignment. The Respondent respected and agreed to ac-
commodate her preference by not assigning her to facili-
ties in Detroit if at all possible. However, Barczyk was
given a few assignments in Detroit and she nonetheless
did perform the assignments.
As a result of a decline in the workload in facilities
where Barczyk worked in early December 1981, her
hours of work were reduced from 35-40 to 18-21 hours
per week. When Barczyk spoke to Administrator Roer
about her reduced hours of work, she explained that she
needed to earn the money. Roer told her there was no
place to assign her at the time; that she would just have
to wait for more work; and that "work might be avail-
able, but it would probably be in Detroit." Barczyk, now
22 years of age, undeniably told Roer that Barczyk's
father did not want her working in Detroit. It is particu-
larly noted, however, that Roer simply said work might
be available in Detroit, but neither she nor Director
Maczei promised, offered, or assigned Barczyk work in
Detroit. Correspondingly, nor did Barczyk inquire about
or request work in Detroit. There were no further con-
versations between Barczyk and the Respondent regard-
ing her reduced hours of work and Barczyk continued to
work her assigned reduced hours as scheduled.
Barczyk filed an application for unemployment com-
pensation on December 14, 1981, because her hours of
work were reduced by one half. The MESC classified
her as "underemployed." On December 17, 1981, the Re-
spondent received a form (R. Exh. 2) from the MESC
requesting wage and separation information from the Re-
spondent for the period July 1, 1981, to the present, but
the Respondent (Roer) said it immediately thought Barc-
zyk's application for unemployment benefits meant she
had resigned her employment with the Respondent. The
word "underemployed" does not appear on the form (R.
Exh. 2) and Administrator Roer undisputedly testified
that she was unaware of any such thing as "underem-
ployed." 4 Thereupon, the Respondent (Administrator
4 Roer is a highly educated psychiatric social worker and administra-
tor. As I observed her testify, I was persuaded that she manifested the
sensitivity so essential in rendering the kinds of services provided by the
Respondent; that she tries to be considerate in dealing with her employ-
ees; and that she is a very professional person who is very much dedicat-
ed to rendering the best possible services in the business in which she is
engaged. However, I was persuaded that she was not so well acquainted
with the rules and regulations of unemployment compensation, to the
extent that she was familiar with the term "underemployed" as an eligi-
bility factor for unemployment benefits. This conclusion is especially true
since the form (R. Exh. 2) which the Respondent received from MESC
Roer) wrote on the form that the applicant was still em-
ployed by the Respondent even though her hours of
work were reduced as a result of a fluctuating workload,
and there was no reason for the applicant to receive ben-
efits. The Respondent signed, dated, and returned the
form (R. Exh. 2) to MESC on the same date (December
17, 1981). The Respondent did not discuss or mention
the application for unemployment benefits to Barozyk
and Barczyk continued to work her reduced-hours as-
signments.
The termination of Diane Barczyk
The precise factual question presented by the evidence
for determination is whether the Respondent's termina-
tion of Barczyk's employment as a resignation was moti-
vated by Barczyk's having filed for and received unem-
ployment compensation.
It may be reasonably inferred from the Respondent's
February 4 letter (R. Exh. 3), in response to a letter from
MESC to which the Respondent refers, but which letter
is not in evidence, that the MESC letter advising the Re-
spondent that unemployment benefits were awarded to
Barczyk, and later a letter notifying the Respondent of a
hearing, were received by the Respondent before or on
January 29, 1982. Although Roer testified that she first
learned what MESC meant by "underemployed" be-
tween January 29 and February 9, 1982, the evidence of
record clearly shows that she knew what "underem-
ployed" meant before she held her first telephone con-
versation with Barczyk on January 29, 1982. More spe-
cifically, on and before January 29, Roer knew that
Barczyk was still working 18-21 hours per week in spite
of the fact that MESC notified her on December 17,
1981, that Barczyk had applied for unemployment bene-
fits. Even though Roer protested the application on the
same date, she was nevertheless notified of the award of
benefits and a scheduled MESC hearing about January
29, 1982. Additionally, since Roer had been in contact
with her lawyer who advised her that her insurance
would increase as a result of the award of benefits, Roer
had to know at that time that an employee working re-
duced hours could be a recipient of unemployment com-
pensation. About 5:30 p.m. on that same day (January
29), the Respondent (Roer) called Barczyk and advised
her that the Respondent deemed her application for un-
employment compensation to be her resignation from its
employ; and that the Respondent's attorney had advised
that it get rid of Barczyk because its "insurance would
go up" as a result of her application for unemployment
(underemployment) benefits.
I credit Barczyk's testimony that she asked Roer if she
had done anything wrong, and Roer said "no," because
Roer had already explained why her attorney told her to
terminate Barczyk. Also, Roer seemingly commenced
her first telephone conversation with Barczyk in a calm
and dispassionate tone of voice. However, when Barczyk
started to ask questions about what she had done wrong
referred to a claim filed for unemployment benefits, while the term "un-
deremployed" did not appear on the form. I therefore credit Roer's testi-
mony that she was unaware of the term "underemployed" as an eligibil-
ity factor for benefits.
185
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and proceeded explaining that she filed the application
because she needed the money, Roer then appeared to
become somewhat provoked and eventually hung up the
telephone. This conclusion is further supported by listen-
ing to the tape recording and reading of the transcribed
tape recording of the second telephone conversation be-
tween Roer and Barczyk, 30 minutes later.
The transcription of the tape recording of the second
telephone conversation (R. Exh. I(a) and (b)) between
Roer and Barczyk reveals the most explicit explanation
why the Respondent (Roer) construed Barczyk's applica-
tion as a resignation, in the face of Barczyk's repeated
declarations that she had not resigned. That record
shows that Roer said, "I'm accepting your resignation
based on what, what it is that hit my desk" (referring to
the MESC notice of benefits having been awarded to
Barczyk); and that she received a notice that Barczyk
had applied for unemployment benefits and a notice of a
hearing at which Roer must appear as a result of the ap-
plication. Barczyk told Roer that she had not resigned.
Both Roer and Barczyk then engaged in a verbal ex-
change, Roer repeatedly telling Barczyk she had accept-
ed her resignation, and Barczyk insisting that she had not
resigned. Near the end of the exchange Barczyk told
Roer she was reporting to work and the latter told her
she was not reporting to work. Finally, Roer said, "This
is my company and I'm telling you I am accepting your
resignation." Barczyk said, "You cannot tell me that I re-
signed," and Roer said she was accepting her resignation
and hung up the telephone.
I credit Barcysk's undisputed explanation that the
smoking incident, mentioned by Roer during their first
telephone conversation, did in fact occur on Barczyk's
own time in a lobby not near the oxygen, where smoking
was prohibited. I credit Barczyk's testimony because the
incident occurred several weeks before the January 29
telephone conversation and the evidence fails to show
that the Respondent at any time had warned or even
spoken to Barczyk about the smoking incident, or about
any other incident for which disciplinary action might
have been warranted or appropriate.
Although the Respondent (Roer) stated or implied that
initially it believed Barczyk had filed a fraudulent appli-
cation for benefits, it is noted that the Respondent did
not even question Barczyk about the application or inde-
pendently investigate the claim. In any event, it is clear
from the evidence that the Respondent had no reasona-
ble basis for believing the claim was improper after it
was notified, on or before January 29 by MESC, that the
claim was granted over the Respondent's protest. The
Respondent did not appear to be too concerned about
Barczyk's application for compensation until after it was
advised by its attorney that its insurance would increase
as a result of Barczyk's entitlement to benefits.
It should be noted that the right of the Respondent to
reduce the work hours of an employee is not in dispute
here. Nor is the right of the Respondent as an employer
to terminate an employee who expressed a preference
not to work in certain geographical locations of the city
in dispute. The Respondent herein had agreed to honor
and did in fact honor that preference to the extent that it
could, and the employee (Barczyk) did work some as-
signments in unpreferred geographical locations. The
only legal questions remaining for resolution are
1. Whether an employee who legitimately files for un-
employment compensation because his or her hours of
work are reduced is engaged in activity protected by the
Act?
2. Does an employer who terminates an employee be-
cause he or she legitimately files for and receives unem-
ployment compensation violate Section 8(a)(1) of the
Act?
In this regard, the Board has held that an employee's
pursuit of unemployment compensation is "protected
concerted activity." The Board also said, certainly, ". ..
the employee's dispute with the employer over her enti-
tlement to unemployment compensation benefits would
be a matter of common interest to other employees, since
they might find themselves faced with a situation similar
to hers in the future." By discharging the employee for
filing a claim for unemployment compensation, the em-
ployer violated Section 8(aXl) of the Act. Self Cycle d
Marine Distributor Co., 237 NLRB 75 (1978); Krispy
Kreme Doughnut Corp., 245 NLRB 1053 (1979); and Air
Surrey Corp., 229 NLRB 1064 (1977).
Since the discharge of therapist aide Diane Barczyk by
the Respondent, herein, was clearly motivated by her
having filed for and received unemployment compensa-
tion, the discharge was discriminatory and constituted an
interference with, restraint upon, and coercion against
employees in the exercise of their Section 7 rights, in
violation of Section 8(aXl) of the Act. Self Cycle &
Marine Distributor Co., supra; Krispy Kreme Doughnut
Corp., supra. Although the evidence indicated Barczyk
was actually entitled to benefits, such ultimate disposition
of her application was not neccessary to protect her act
of filing the application. Country Club of Little Rock, 260
NLRB 1112 (1982).
Finally, since the record is barren of any evidence that
Barczyk committed any flagrant and egregious wrongs
for which disciplinary action (discharge) by the Re-
spondent would have been appropriate and justified, the
Respondent has not demonstrated that it discharged
Barczyk for cause. Milk Wagon Drivers Union v. Meadow-
moor Dairies, 312 U.S. 287, 293 (1941); Johnston-Tombig-
bee Furniture Co., 243 NLRB 116, 121 (1979).
While I was convinced that the Respondent (Roer) did
not intend to violate the National Labor Relations Act,
unfortunately the Respondent's conduct, without knowl-
edge of the requirements and obligations under the Act,
did result in its violation. A careful review of the cases
cited by counsel for the Respondent reveals that they are
not applicable to the facts as found herein.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The activities of the Respondent set forth in section
III, above, occurring in close connection with its oper-
ations as described in section I, above, have a close, inti-
mate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
186
D & D HEALTH ASSOCIATES
V. THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices within the meaning of Section
8(aX1) of the Act, we shall order that it cease and desist
therefrom and take certain affirmative action to effectu-
ate the policies of the Act.
It having been found that the Respondent interfered
with, restrained, and coerced its employees in the exer-
cise of their Section 7 rights by discharging an employee
because she filed for and received unemployment com-
pensation, the recommended Order will provide that the
Respondent cease and desist from engaging in such un-
lawful conduct, and that it take certain affirmative action
necessary to effectuate the purposes and policies of the
Act.
Because of the character of the unfair labor practices
herein found, the recommended Order will provide that
the Respondent cease and desist from or in any like or
related manner interfering with, restraining, and coercing
employees in the exercise of their rights guaranteed by
Section 7 of the Act. NLRB v. Entwistle Mfg. Co., 120
F.2d 532, 536 (4th Cir. 1941).
On the basis of above findings of fact and on the entire
record in this case, I make the following
CONCLUSIONS OF LAW
1. D & D Health Associates, Inc., the Respondent
herein, is and has been at all times material herein an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. By discriminatorily discharging an employee be-
cause she filed for and received unemployment compen-
sation, the Respondent has interfered with, restrained,
and coerced its employees in the exercise of their Section
7 rights, in violation of Section 8(aXl) of the Act.
3. The conduct described in paragraph 2, above, is an
unfair labor practice affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
187