Franklin Convalescent Center

National Labor Relations Board - Board Decisions

May 5, 1976

223 N.L.R.B. 1298 (N.L.R.B. 1976)

1298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tuschak/Jacobson, Inc. t/a Franklin Convalescent
Center and District 1199, National Union of Hospi-
tal and Health Care Employees , Retail, Wholesale
and Department Store Union, AFL-CIO and Amal-
gamated Local 298, AFL-CIO, Party in Interest
Amalgamated Local 298, AFL-CIO and District 1199,
National Union of Hospital and Health Care Em-
ployees, Retail, Wholesale and Department Store
Union, AFL-CIO. Cases 22-CA-6251 and 22-CB-
2906
May 5, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND PENELLO
On January 8, 1976, Administrative Law Judge
Michael O. Miller issued the attached Decision in
this proceeding. Thereafter, Respondent Employer
filed exceptions and a supporting 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 brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order except as modified
below.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge as modified
below and hereby orders that Respondent Tuschak/
Jacobson, Inc., t/a Franklin Convalescent Center,
Franklin Park, New Jersey, its officers, agents, suc-
cessors , and assigns , and Respondent Amalgamated
Local 298, AFL-CIO, Union City, New Jersey, its
1 The Respondent Employer 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 (1950). enfd . 138 F.2d 362 (C.A. 3. 1951). We have
carefully examined the record and find no basis for reversing his findings-
2 In his recommended Order the Administrative Law Judge uses the nar-
row cease-and-desist language . "in any like or related manner ." Respon-
dents here have committed violations which go to the very heart of the Act.
We shall therefore modify the Administrative Law Judge's recommended
Order to require Respondent to cease and desist from in any other manner
infringing upon the rights guaranteed to its employees by Section 7 of the
Act. N.L.R.B. v. Entwistle Mfg. Co.. 120 F.2d 532. 536 (C.A. 4. 1941).
officers, agents, and representatives, shall take the
action set forth in the said recommended Order, as so
modified:
1. In paragraph A,1,(d), of the recommended Or-
der, delete the words "In any like or related manner"
and substitute in lieu thereof "In any other manner."
2. In paragraph B,1,(d), of the recommended Or-
der, delete the words "In any like or related manner"
and substitute in lieu thereof "In any other manner."
3. Substitute the attached notices for those of the
Administrative Law Judge.
APPENDIX A
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT assist or contribute support to
Amalgamated Local 298 , AFL-CIO, or any
other labor organization , by assisting it to orga-
nize our employees or by recognizing it as the
exclusive collective-bargaining representative of
our employees unless and until it has been certi-
fied as such representative by the National La-
bor Relations Board.
WE WILL withdraw and withhold all recogni-
tion from Local 298 as the collective -bargaining
representative of our employees.
WE WILL NOT threaten our employees with dis-
charge by telling them that they must join Local
298 or any other labor organization as a condi-
tion of employment and WE WILL NOT interrogate
our employees concerning their union member-
ship, activities , and desires.
WE WILL NOT encourage membership in Amal-
gamated Local 298 , AFL-CIO , or any other la-
bor organization , or discourage membership in,
or activities on behalf of, District 1199, National
Union of Hospital and Health Care Employees,
Retail, Wholesale and Department Store Union,
AFL-CIO , or any other labor organization, by
discharging or in any other manner discriminat-
ing against our employees in regard to their hire
or tenure of employment or any terms or condi-
tions of employment.
WE WILL NOT in any manner interfere with,
restrain , or coerce employees in the exercise of
their rights to self-organization , to form labor
organizations, to join or assist District 1199, Na-
tional Union of Hospital and Health Care Em-
ployees, Retail , Wholesale and Department
Store Union , AFL-CIO, or any other labor or-
223 NLRB No. 197
FRANKLIN CONVALESCENT CENTER
ganization, to bargain collectively through rep-
resentatives of their own choosing, to engage in
concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or
to refrain from engaging in any or all such activ-
ities, except to the extent that such rights may be
affected by an agreement requiring membership
in a labor organization as a condition of em-
ployment as authorized in Section 8(a)(3) of the
Act, as modified by the Labor-Management Re-
porting and Disclosure Act of 1959.
WE WILL, jointly and severally with Local 298,
make Linda Lee whole for any loss of earnings
she may have suffered because of her discharge.
TUSCHAK/JACOBSON, INC. T/A FRANKLIN
CONVALESCENT CENTER
APPENDIX B
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT accept recognition as the exclu-
sive collective-bargaining representative of
Franklin Convalescent Center's employees or
enter into a collective-bargaining agreement
with Franklin unless and until we have been cer-
tified as such a representative by the National
Labor Relations Board.
WE WILL NOT restrain or coerce employees by
falsely telling them that we have already been
selected as their collective-bargaining represen-
tative and that they are required to join this
Union as a condition of continued employment.
WE WILL NOT cause or attempt to cause Frank-
lin or any other employer to discharge or other-
wise discriminate against its employees in order
to encourage membership in Local 298 or to dis-
courage membership in District 1199, National
Union of Hospital and Health Care Employees,
Retail, Wholesale, and Department Store
Union, AFL-CIO, or any other labor organiza-
tion.
WE WILL, jointly and severally with Franklin,
make Linda Lee whole for any loss of earnings
she may have suffered because of her discharge.
WE WILL NOT in any other manner restrain or
coerce employees of Franklin in the exercise of
the rights guaranteed them in Section 7 of the
Act.
AMALGAMATED LOCAL 298 , AFL-CIO
DECISION
STATEMENT OF THE CASE
1299
MICHAEL O. MILLER, Administrative Law Judge: Based
upon charges filed by District 1199, National Union of
Hospital and Health Care Employees, Retail, Wholesale
and Department Store Union, AFL-CIO (herein District
1199) against Tuschak/Jacobson, Inc., t/a Franklin Con-
valescent Center (herein Franklin or Respondent Employ-
er) and Amalgamated Local 298, AFL-CIO (herein Local
298 or Respondent Union) on February 24, 1975, and
March 31, 1975 (first amended charge against Local 298),
the Regional Director for Region 22 of the National Labor
Relations Board (herein the Board), on June 11, 1975, is-
sued the order consolidating cases, complaint, and notice
of hearing upon which these cases were heard. The hearing
was held on July 28 through July 31, 1975, at New Bruns-
wick, New Jersey.
The consolidated complaint alleges that Respondent
Employer violated Section 8(a)(1), (2), and (3) of the Na-
tional Labor Relations Act, (herein the Act) by various
acts including threats and interrogations, encouraging
membership in Respondent Local 298, otherwise assisting
and recognizing Respondent Local 298 at a time when said
Local 298 did not represent an uncoerced majority of its
employees in an appropriate bargaining unit and while an-
other union, District 1199, had a substantial claim of repre-
sentation as to these same employees, and by discharging
an employee, Linda Lee, because said employee joined or
assisted District 1199 and refused to join or assist Local
298. As to Respondent Local 298, the complaint alleges
violations of Section 8(b)(1)(A) and (2) by threatening to
cause and causing the discharge of employees and by ac-
cepting recognition at a time when it did not represent an
uncoerced majority of the employees in a unit appropriate
for the purposes of collective bargaining.
Both Respondents have denied the substantive allega-
tions of the complaint.
General Counsel and both Respondents were repre-
sented by counsel at the hearing. All parties were afforded
full opportunity to be heard, to examine and cross-examine
witnesses, to introduce oral and documentary evidence, to
argue orally and to file briefs. Briefs were submitted by
General Counsel and counsel for Respondent Employer
and have been carefully considered.
Throughout the hearing, the witnesses and their demean-
or were carefully observed by me. Based upon these obser-
vations and my consideration of the entire record in this
case, I make the following:
FINDINGS OF FACT
1. RESPONDENT EMPLOYER'S BUSINESS
The complaint alleges, Respondents admit, and I find,
that Respondent Employer is engaged in the business of
providing health and medical care and related services for
the aged at its convalescent center located in Franklin
Park, New Jersey. During the 12 months prior to issuance
1300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the complaint, a representative period , Respondent Em-
ployer had gross revenues in excess of $100,000 and pur-
chased and received goods and materials valued in excess
of $50,000 directly from points located outside the State of
New Jersey. Respondent is an employer within the mean-
ing of Section 2(2) of the Act, engaged in commerce and in
operations affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
11. LABOR ORGANIZATION STATUS
The complaint alleges , Respondents admit , and I find,
that both Respondent Local 298 and District 1199 are la-
bor organizations within the meaning of Section 2(5) of the
Act.
Ill. THE UNFAIR LABOR PRACTICES
A. Background
Respondent Employer 's convalescent center has been in
operation since November 1973. Included among its su-
pervisory hierarchy are Executive Director Nathan Lin-
denbaum, Administrator Roger Wardlow, and Director of
Nursing Judith Tucker.'
Catherine Lafferty was a nurses ' aide alleged in the com-
plaint to be an agent of Respondent Employer and both
shop steward and agent of Respondent Local 298. Both
Respondents denied her agency status . Jack Buck is Local
298's financial secretary and is, I find, an agent of Local
298.
B. The Advent of Local 298 at Franklin
Lindenbaum testified that he learned of the existence of
the Modern Nursing Home Association through periodi-
cals and seminars in 1974. This Association, he stated, pro-
vided its members with information , and engaged in some
lobbying. He was also aware of and admitted interest in
the fact that "the members of the nursing homes of the
association had a good relationship union-wise." In the lat-
ter part of December 1974, Lindenbaum told his adminis-
trator, Wardlow, that they were considering becoming
members of that Association. Wardlow testified that Lin-
denbaum referred to some advantages of membership, in-
cluding the sharing of information regarding various mat-
1 Additionally, Respondents stipulated for the purpose of unit placement
that Constance Mierta , Francis Beckman , and Charles Gilmore were super-
visors within the meaning of Section 2 (l1) of the Act. General Counsel
sought to adduce evidence , and made offers of proof to the effect that these
three individuals had directed certain employees to speak with Local 298's
representatives while the latter were soliciting support. Objections to the
tendered evidence were sustained and offers of proof rejected because the
complaint did not allege these individuals to be supervisors or agents and
therefore did not adequately apprise Respondents of the conduct against
which it would have to defend . At the opening of the second day of hearing,
General Counsel moved to amend the complaint to so allege them and to
allege their conduct as coercive . That motion was granted but subsequently
withdrawn by General Counsel to avoid any delay in the conduct of the
hearing . General Counsel, however, stated his intention to pursue his argu-
ment concerning the admissibility of such testimony in the absence of an
amendment to the complaint but did not allude thereto in brief . The ruling
made at the hearing in regard to such evidence is maintained herein.
ters, such as legislative trends, day-to-day problems, and
labor relations. Among the advantages mentioned was the
ability to act in concert in labor negotiations. Lindenbaum
told Wardlow that the members of the association were
represented by Local 298 and that membership in the asso-
ciation would allow their employees the opportunity to
consider representation by Local 298.2
Thereafter, without further discussions with Wardlow,
Lindenbaum applied for and received membership in the
Modern Nursing Home Association. He told Wardlow of
this on January 20, 1975.3
On that same date, January 20, after being informed by
the president of the Modern Nursing Home Association
that Franklin had become a member, Jack Buck accompa-
nied by another agent of Local 298, Joe Farango, appeared
at Franklin. Buck told Lindenbaum that Local 298 repre-
sented the Association's employees and requested recogni-
tion and the signing of a contract. Buck did not show Lin-
denbaum Local 298's contract with other association
members but showed him a list of various benefits, entitled
"Franklin Convalescent Center" which listed benefits to be
granted in the area of holidays, sick leave, insurance, and
wages, and concluded "MUST JOIN UNION AFTER 30 DAYS." Lin-
denbaum indicated, according to Buck, that he would go
along with some benefits. There were no negotiations and
no agreements reached on benefits or union security. Lin-
denbaum allegedly 4 rejected Buck's request for immediate
recognition on the grounds that there was no showing that
the employees wanted Local 298 to represent them. Buck
asked to be permitted to go through the facility speaking to
employees in order to prove his representative status,
which request was denied. It was agreed, however, that one
employee would be furnished to Buck.
Buck, Lindenbaum, and Wardlow discussed the unit,
with Buck stating that he was considering the nurses' aides,
housekeeping, dietary, and laundry department employees.
He was not interested in representing high school students
and part-time employees working less than 20 hours per
weeks Lindenbaum told Buck that there were between 40
and 42 employees in that unit. This meeting lasted between
15 minutes and one-half hour.
C. The Involvement of Catherine Lafferty
Lindenbaum called Judith Tucker , director of nursing,
and told her that there were some men who wished to
speak with her employees and that she should release those
who wished to be released, but should not allow disruption
of the work. Wardlow then left the office where he had
been talking with Buck and Lindenbaum and went to the
nursing department . He asked Tucker for an employee
] Lindenbaum testified that he was not aware of the identity of the union
representing the association 's members ' employees at that point in time.
Wardlow 's testimony . however, indicated that Lindenbaum identified Local
298 as the union representing those employees . I credit Wardlow 's state-
ment, in the nature of an admission , over Lindenbaum 's denial.
l All dates hereinafter referred to are 1975 unless otherwise specified.
4The testimony of this meeting though self-serving , stands uncontradict-
ed.
5 The contract between Respondent Local 298 and other members of the
Modern Nursing Home Association contained no such exclusion of stu-
dents and part-time employees.
FRANKLIN CONVALESCENT CENTER 1301
from that department who could be spared and Tucker,
observing nurses' aide Catherine Lafferty nearby, suggest-
ed that Wardlow speak with her. Wardlow called her aside,
told her that there was a union representative in his office
who wanted to talk with an employee, and asked her if she
wanted to be a union steward. He told Lafferty that Lin-
denbaum had given his permission for her to talk with the
union representative. According to Wardlow, Lafferty said
that she had never had any dealing with a union and didn't
know anything about it but would go. Lafferty accompa-
nied Wardlow back to his office where he introduced her
to Buck and Farango.
Buck spoke privately with Lafferty in the conference
room. According to his testimony, he told her who he was
and explained that he wanted to represent Franklin's em-
ployees. He showed her the list of benefits previously
shown to Lindenbaum and Wardlow and told her, "that
once I get a contract signed, there would be a clause in the
contract stating that all those who joined in the period of
30 days I would waive the initiation fee." 6 He explained to
her that he was not being permitted to go through the insti-
tution himself, which was why Lindenbaum had appointed
her to come down and see him. He told her to bring a
couple of employees at a time to him and he would explain
why he was there. Lafferty was told that in return for this,
she would be the union steward, that she would receive a
$12 raise and be required to pay neither the initiation fee
nor monthly dues. She was also told, according to her testi-
mony, that she would collect dues, pass out cards, and at-
tempt to resolve problems for employees.
Lafferty returned to the nursing floor and asked Tucker
whether it would be all right for her to take some employ-
ees from the floor to speak with Buck. Tucker replied affir-
matively. She began to bring employees to Buck at the
conference room.
D. The Signing of Local 298s Application for
Membership/Authorization for Representation Cards
Lafferty testified that she went to a number of employ-
ees and told them "that we were going to have a union and
that there were two representatives from the union and
61 am not inclined to credit his self-serving statement. Such benefits.
applicable only at the beginning of a collective-bargaining relationship and'
deriving from the Union, are rarely, if ever the subject of provisions in
collective-bargaining agreements . I note that Local 298's contract with other
association members contained no such provision but did include a union
security clause which stated:
ARTICLE III - UNION SHOP
1. All employees covered by this Agreement shall be or become mem-
bers of the Union on the 30th day following the beginning of employ-
ment or the effective date of this Agreement , whichever is later, and all
such employees shall thereafter maintain their union membership in
good standing with respect to union membership dues and initiation
fees for the duration of the Agreement as a condition of their continued
employment.
I note further that Buck 's alleged statement is inconsistent with the state-
ment in the list of benefits shown the employee , Lafferty and , subsequently.
other employees , that employees "MUST JOIN UNION AFTER 70 DAYS ." The fact that
Buck 's statement was not controverted by Lafferty, a reluctant if not hostile
witness for the General Counsel , does not compel its acceptance in light of
its inconsistency and implausibility . See J. C. Penney Co., Inc. y. N.L.R.B..
416 F.2d 702, 704 (C.A. 7, 1969).
they wanted to speak to them and there were cards to be
signed," that "they had to go into the conference room to
sign the cards and if they had any questions that the two
gentlemen in there would explain it to them." She told at
least some of the employees that Tucker had said it was all
right to leave their work station. She also testified that she
told the employees that the union would cost them $7 per
month, they would receive a wage increase and an addi-
tional holiday and that they had 30 days within which to
join the Union. She testified that she told them that if they
did not join within 30 days, they would have to buy the
union book for either $25 or $30.1 Lafferty handed out or
showed employees the list of benefits provided by Buck.
Lafferty stated that all of the employees who went to the
conference room on January 20 did so upon her urging.
Reviewing the cards relied upon by Local 298 in claiming
majority support she stated that she recalled the following
employees having gone to the conference room: John Bieg-
en, Brenda Cowan, Charlotte Heikkila, Barbara Pilalides,
Ella Posten, Lillian Reed, Olga Ruppert, Rosemarie Rup-
pert, Marie Jane Stout, Addie Taylor, Marilyn Williams,
and Isabel Pagano. Lafferty did not see all of the foregoing
employees sign cards. Lafferty, herself, of course, also
spoke to Buck in the conference room and signed an au-
thorization and membership application card. Pagano was
recalled by Lafferty as having declined to sign a card while
in the conference room; she took the card home for the
expressed purpose of discussing her signing with her hus-
band and then returned the signed card to Lafferty. Laffer-
ty either did not recall or was unsure as to whether the
signers of the remaining cards went to the conference room
at her direction or request: Brian Austin, Harriet Bolyog,
Virginia Bonner, Bruce Emens, Dorothy Harrison,
Gwenthe Wacker, Jeanne Cogan, Sandra Holliday, Eileen
Killea, Susanna Tonelli, Christine LaRose, Irene Retman-
ski, and Sharon Schwartz. One card, in evidence as Gener-
al Counsel's Exhibit 2(a), was illegible and could not be
identified by Lafferty.
Buck did not identify the employees he spoke with in
Franklin's conference room on January 20 and 21. He tes-
tified that to those with whom he spoke, he introduced
himself as the representative of Local 298, the union which
represented the employees of the association of which
Franklin was a member. He testified that: he showed them
the list of benefits, previously referred to, and told them
that those were some of the benefits they would get if he
got a majority of the cards signed; that he would waive
initiation fees for all members that joined within the 30
days after the contract was signed; that those who did not
join within the 30 days would have to pay an initiation fee;
and that they would be discharged if they did not join after
30 days.
The following employees testified in regard to the cir-
cumstances under which they signed Local 298's cards:
Brian Austin: Austin signed his card in Franklin's cafete-
ria on January 21, at the request of an unidentified woman.
7 Oscar Bailey, an employee who did not sign a card, testified that in the
beginning of February, Lafferty asked him to join Local 298 and, when he
replied that he was not interested, told him, "well, I don't know if you know
it or not. you will have 30 days to sign, otherwise your employment will be
terminated." I credit Bailey.
1302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the prior day (Austin testified that it was a couple of
days prior to his signing of the card ; January 20, however,
was the first date the union representatives appeared at
Franklin), Lindenbaum and Wardlow had come to the
kitchen where Austin worked and "said there are a few
people from the union and they would like to tell you
something about it , you know, so in case I would like to
join it ." Austin went to the conference room . It was his
recollection , somewhat vague, that another employee asked
if they had to sign the cards at that time and that one of the
representatives stated that they should sign it at that mo-
ment . Austin and the other employee walked out of the
meeting without signing cards.
John Biegen: Biegen went to the conference room 8 on
January 20 . He recalled several other employees , Jeanne
Cogan , Lillian Reed , Rosemarie Ruppert , and two others
identified only as Susanna and Brenda ," as well as two
union representatives , being present . Biegen 's recollection,
albeit somewhat vague , was that they were told , "our Con-
valescent has a union and it will give you better benefits,
more pay and holidays." In response to a leading question,
Biegen recalled that something was said to the effect that
they had 30 days in which to sign the cards.
Harriet Bolyog: Bolyog was sent, along with Joanne Co-
gan, to Tucker's office where Tucker told them to go to the
conference room where there were two union men that
wanted to talk to them . They went to the conference room
where Buck or Farango told them that they had been
trying to get in for a period of 2 weeks, that they had tried
to get them a 50-cent raise but that the Company would
only give a 20-cent raise which they would get on February
15, and that they would be paid in December for unused
sick leave . She recalled no reference to any 30-day period.
Bolyog and Cogan were given cards and both signed. An-
other employee present took a card but did not sign it.
Virginia Bonner and Barbara Pilalides : Shortly after Bon-
ner arrived for work on the second shift on January 20, she
passed the nurses' station where Tucker greeted her and
told her that there was a union meeting in the conference
room . Bonner recalled waiting for a few minutes and then
going to the conference room with another nurses' aide,
Barbara Pilalides , whom she had told about the meeting.
(Pilalides did not describe going to the meeting with Bon-
ner; she stated that she was told about the meeting by a
man standing by the door as she came in. She did, howev-
er, recall being in the meeting at the same time as Bonner.)
Buck told them of benefits , a raise and payment for unused
sick leave, they would get from the Union , and told them
that they would have to sign within 30 days. They were
told that it they didn' t sign within 30 days, they would have
to pay $25 to join the Union and if they did not pay $25
8 An offer of proof to the effect that he was directed to go to the confer-
ence room by his supervisor was rejected for the reasons set forth in fn. 1.
supra. Similar offers of proof were rejected in regard to the testimony of Ella
Posten and Addie Taylor. the circumstances of whose card signings are
discussed . infra.
9 The payroll list for the relevant date lists only one employee named
Susanna (Tonelli) and two employees named Brenda (Cowan and Burnett).
Brenda Burnett was shown to be a high school student . As previously noted.
a card was signed by Brenda Cowan . Susanna Tonelli's card (G. C. Exh.
2(y)) was identified by Ella Posten and was received in evidence . No card
signed by Burnett was proffered.
they would be discharged.10 Bonner and Pilalides signed
cards.
Charlotte Heikkila: Heikkila signed an authorization
card for Local 298 on January 21 upon being approached
by an employee named Cathy, who claimed to be the shop
steward. (As Lafferty was the only unit employee named
Catherine and apparently the only employee designated as
shop steward, I conclude that she was the person who ap-
proached Heikkila). She asked Heikkila whether Heikkila
would like to join the Union. Heikkila indicated that she
would if everyone else did, and signed the card. Heikkila
then asked Lafferty what they would be getting and Laffer-
ty showed her the list of benefits previously described. She
also asked Lafferty what would happen if they did not sign
and Lafferty told her, "when the union comes in you will
have to sign it."
Within a week of signing the card, Heikkila changed her
mind and attempted to retrieve it from Lafferty. Lafferty
told her that it was in the office. She went to the office and
asked Lindenbaum for the return of her card. She ex-
plained that she did not feel that she was getting enough of
a raise . Lindenbaum told her that everyone was getting
20-cents per hour but that there were possibilities of merit
raises . She again asked for the card and either Lindenbaum
or Tucker, who was also present, told her that the card was
not there, and said that "it ... does [not] matter because
when the union comes in we would all have to sign any-
way."
Sandra Holliday: Holliday was not scheduled to work on
January 20 but was called by Tucker and asked if she
would be able to come in. Tucker told her that there were
two union men to see her and asked if she wanted to sign.
She came into work and Tucker told her to punch in and
then see the union men . The list of benefits was shown to
her and explained by Buck. Buck gave her a card and she
signed it.
About a week later, Holliday attempted to retrieve her
card. She went, allegedly in the company of Eileen Killea
(who testified, but not in regard to this incident) to Linden-
baum and asked if they could have their cards back. Lin-
denbaum told her that the union men had the cards and
that they could get them when the union men came back.
About a week later, the union representatives returned and
Holliday heard Lindenbaum tell them that she was the em-
ployee who wanted to pull her card. Outside the presence
of Lindenbaum , the union representatives told her that "I
wouldn't be able to pull my card because if I did then
within 30 days I would have to be fired. Everyone had to
sign the union card."
Holliday testified that she went to work on January 20
because she thought having a union was a good idea. She
also testified that at the time she signed the card she be-
lieved that the Union was already in at Franklin.
Eileen Killea: Killea called Tucker on January 20 to tell
her that she would be unable to come in because of the
snow storm. However, she agreed to come in if Tucker sent
someone down for her. Holliday was sent to pick her up.
On the way to work, Holliday (whose testimony made no
10The foregoing is from the combined and consistent recollections of
Bonner and Pilalides.
FRANKLIN CONVALESCENT CENTER 1303
mention of picking up or talking to Killea on January 20)
told her that there were two union men at Franklin, talking
to the employees, and that she had already signed a card
for the Union. Holliday told her that there was going to be
a raise.
When Killea arrived at the convalescent home, Tucker
greeted her and told her that there were two union men
there who would like to talk with her. Tucker introduced
Killea to the union men. Lindenbaum had been talking to
the union representatives at this time but left before they
began to talk to Killea. Tucker had also left, but returned
and asked Killea if she could sit in while they talked with
her as she had not heard what they had been telling em-
ployees. I I
Killea was given the list of benefits and was told that she
would get a raise of 20 cents as of February 15. Other
benefits were described and she was told that if a majority
signed cards, everyone would have to sign with that union.
Tucker was present when Killea signed her card.
Isabel Pagano: Pagano signed a card for Local 298 on
January 23. The card had been given to her by Lafferty
and the one^she signed may have been the second card she
received from Lafferty. She took the first card home. Her
testimony, while less than clear, was candid, and revealed
that Lafferty showed her the list of benefits, Pagano pro-
tested that they were inadequate, Lafferty assured her that
they were better than they had previously received and Pa-
gano told Lafferty that she did not like the benefits, did not
want to sign and asked Lafferty what would happen if she
did not sign. Lafferty told her that the union was coming in
and would be in effect on the following day, that if she did
not sign then, she would have to pay $25 and that if she did
not sign the card she would be terminated in 30 days. Simi-
lar remarks, at least about paying the $25, were made to
Pagano by the union representative.
Ella Posten: Posten signed a card for Local 298 on Janu-
ary 20, in a meeting with Buck in the conference room. She
recalled that also present and signing cards at that time
were Christine LaRose, Susanna Tonelli, John Biegen, and
possibly Jeanne Cogan. Buck or Farango told them that
they were there to represent the union and were going to
get them good benefits, more holidays, and more money.
Authorization cards were given out and they were told that
if they signed within 30 days they wouldn't have to pay
anything, that they would have to pay something if they
did not sign within 30 days, and if they did not sign at all
they would be terminated.
Addie Taylor: Taylor testified that she was in the confer-
ence room on January 20 together with John Biegen, Su-
sannL, and Ella. It was her recollection, which she admit-
ted was less than complete, that they were told that the
Union wanted to come in, that they would get a raise after
it came in , that it would cost $7 if they joined and $20 if
they joined after 30 days, and that they had 30 days to
"Tucker admitted having walked into the conference room while Buck
was talking to Killea, but claimed she did so while looking for tardy arrivals
among the nurses' aides and did not pay any attention to the discussion
being carried on. I credit Killea, who impressed me as a candid witness
endeavoring to accurately describe the events about which she was being
questioned.
make up their minds. She received the impression, from
being told that they had 30 days to make up their minds,
that if she didn't sign she would lose her job.
Marie Jane Stout: Stout was given a card by Lafferty,
who told Stout that she was the shop steward. Lafferty
showed Stout the list of benefits. Stout told Lafferty that
she had heard about the union from Addie Taylor and that
"from what I have heard, I guess I have no choice but to go
ahead and sign ...." Lafferty did not reply verbally, but
smiled. Stout signed the card.
E. Franklin's Recognition of Local 298 - The Unit
On January 23, in the morning, Buck again requested
recognition and the execution of a collective-bargaining
agreement . He gave Lindenbaum 29 applications of mem-
bership/authorization for representation cards which pur-
ported to be signed by employees in the unit sought by
Local 298: all nurses' aides, orderlies, dietary, housekeep-
ing, and laundry employees, excluding part-time employees
working less than 20 hours per week, high school students,
guards and supervisors as defined in the Act.12 The parties,
by stipulation at the hearing, agreed'as to the inclusion of
43 employees in this unit.
Nineteen high school students employed by Franklin
were identified by similar agreement and the inclusion or
exclusion of some of them is in dispute herein. Of these 19,
the record reflects that 13 regularly worked less than 20
hours per week and thus, pursuant to the agreement of the
parties, were excluded from the unit. Six, however, aver-
aged more than 20 hours per week in the five payroll peri-
ods preceding and including the date of recognition: Bren-
da Burnett, Richard Daniels, Vickie Lee Humbard,
Barbara Kroeper, Bill Newburg, and Mike Quindlen. Tes-
timony of Wardlow indicated that while high school stu-
dents perform the same work under the same conditions as
other employees, and are eligible for a pro rata share of
most fringe benefits (sick leave, holidays, vacations) if they
average 20 or more hours per week, they had a higher rate
of turnover and less expectancy of continued employment
than other employees. Only one employee could be re-
called as having continued in Franklin's employ following
graduation from high school. The Board, in Otis Hospital,
Inc., 219 NLRB 164 (1975), recently stated:
Upon consideration we conclude that in the health
care industry we will give effect to all stipulations de-
signating unit compositions that do not contravene the
provisions or purposes of the Act or well-settled Board
policies.
The exclusion of high school students from the unit agreed
to herein may not provide for the optimum unit. It does,
however, have a rational basis and does not "contravene
12 General Counsel initially contended that the exclusion of part-time em-
ployees working less than 20 hours per week and high school students who
performed the same work, under the same conditions, as unit employees
was inappropriate . In the course of the hearing, however, General Counsel
withdrew that position and stated that "it does not contend that it was
inappropriate to exclude from the unit in issue, high school students for
others] regularly working 20 or less hours per week." General Counsel con-
tinued to maintain that high school students regularly working more than 20
hours per week should be included in the unit.
1304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the provisions of the Act or well-settled Board policies." I
thus conclude that the high school students were not inap-
propriately excluded from the unit wherein Respondent
Union sought to establish its majority status.
As to the inclusion or exclusion of 10 other individuals,
no agreement was reached. The record as to those individ-
uals reflects the following:
Anne Chase and Jean McCalla, in the five payroll peri-
ods (2 weeks) preceding and including January 23, aver-
aged less than 15 hours per week , except for the period
which would include Christmas week (when part-time or
student employees have more hours available and are uti-
lized to give full -time employees more time off) when each
averaged approximately 32 hours per week . Roseland
Thompson , Anna Davidson , and Irene Retmanski aver-
aged less than 20 hours per week in each of the same pay
periods. Michele Hilyard apparently commenced her em-
ployment in the pay period ending February 6, having
worked but 16 hours in that period and not at all in the
four preceding pay periods. I would therefore conclude
that Chase , McCalla , Thompson , Davidson , Retmanski,
and Hilyard fall within the agreed exclusion of part-time
employees and are not to be counted as part of that unit.
The records, however, also reveal that nurses' aide Star
Brown worked total hours of 63-1/2, 59-1/2, 75-1/2, 55,
and 36-3/4 in the pay periods of December 12, December
26, January 9, January 23, and February 6, respectively,
and that in those same pay periods nurses ' aide Helen Hag-
in worked 39-3/4, 46, 27-1/2, 46-1/2, and 48 hours. I there-
fore conclude that Brown and Hagin regularly worked in
excess of 20 hours per week and are includable in the
agreed-upon unit.
Respondent Employer contended that Linda Carron and
Joann Vitello were supervisors in the dietary department.
The sole evidence relating to them was adduced through
Lindenbaum. He described them as supervisors, having the
authority to assign employees to their work task and direct
them in those tasks. He testified that as supervisors , Carron
and Vitello would have the authority to schedule hours and
assign overtime , if necessary, without checking with Ward-
low, to whom all supervisors reported. Lindenbaum had
not directly observed the work of Carron and Vitello and
did not know how many employees reported to them. He
believed that they were hourly paid and that they worked
on separate shifts . Based upon the foregoing , while not free
from doubt , I am constrained to conclude that Carron and
Vitello are supervisors and thus excluded from the unit.
General Counsel has not sustained his burden of proof to
establish otherwise.
I thus conclude that the unit , at the time of recognition,
contained 45 employees, the 43 agreed to by stipulation
plus Brown and Hagin.
Lindenbaum took the 29 cards proffered by Buck into
his office where he compared the signatures against other
documents . He excluded Irene Retmanski 's card as that of
a part-time employee outside the unit . Two cards were un-
dated but were counted on Buck 's representation that they
had been signed in the same period of time as the other
cards. As Buck had proffered 28 signed cards in a unit that
Lindenbaum deemed to number 43, he agreed to recognize
Local 298 at that time . No contract negotiations were held
at that time and no agreements, beyond recognition, were
reached. Buck did not give or show Lindenbaum a copy of
the association agreement. There was no discussion of
union security. Several times thereafter, Buck and Linden-
baum discussed increases in benefits over the telephone.
F. Activity and Card Signing for District 1199
Linda Lee, a nurses' aide, testified that she made an ini-
tial contact with District 1199 in November 1974, but be-
cause of the pendency of the holidays and other business,
organizational activities were not undertaken at that time.
She made a second contact with District 1199 in January
and arranged a meeting with Mr. Evanoff, a representative
of that union, for her home, to be held on January 22.
According to both Lee and Joyce Milicia, another nurses'
aide, that meeting was held, with Evanoff, Milicia,
Gwenthe Wacher, and Martha Anderson present. Follow-
ing this meeting, where literature and authorization cards
for District 1199 were passed out, but no cards signed, the
employees went to work, and met with additional employ-
ees in Franklin's second floor dining room. It was at the
gathering in the dining room that cards were signed.
On the following evening, January 23, an additional
meeting was held for District 1199, at Corvino's Restau-
rant, near the convalescent center, following the comple-
tion of the 3 p.m. to II p.m. shift. Additional cards were
signed at this meeting.
Twelve authorization cards for District 1199 were identi-
fied or tendered at the hearing. Of these, two cards, those
of Virginia Bonner and Sandra Holliday, were rejected as
evidence because they were admittedly signed at the meet-
ing at Corvino's on January 23, after Franklin's recogni-
tion of Local 298. A third card, that of Oscar Bailey, simi-
larly signed at Corvino's on January 23 and a fourth card,
carrying that same date but about which there was no testi-
mony, were not offered.
Of the eight cards for District 1199, received in evidence,
three (those signed by Sharon Schwartz, Helen Hagin, and
Eileen Killea) are dated January 22. The remainder, cards
signed by Lee, Wacher, Milicia, Martha Anderson, and
Eileen Pinkrah, are dated January 23. Notwithstanding the
dates they bear, General Counsel asserted that these cards
were actually executed on January 22, at the gathering in
Franklin's dining room following the meeting at Lee's
home. Lee so testified and explained the discrepancy in
dates as follows:
Q. (by General Counsel): Would you explain to us
why the date in the upper right-hand corner is January
23, 1975?
A. (by Lee): Because of the nature of the shift in
which I work even though I go in on say a Wednesday
night, the basis of our work is done the next day and
when we sign a document or enter information or
charts [sic] information, we chart on that day's date.
Q. Which day's date?
A. The next day's date.
As she had stated in a May 28 letter to the Board, the date
of January 23 reflected the date of the bulk of the shift
which they were commencing. Lee's testimony in this re-
FRANKLIN CONVALESCENT CENTER 1305
gard is directly corroborated by Milicia. It is further sup-
ported by the testimony of Schwartz, who described both
the meeting in the dining room on January 22 and a subse-
quent meeting at Corvino's and testified that she received
her card from Lee and signed it at the meeting in the din-
ing room on the date it bore, January 22. I note further that
while Bonner testified that she saw Killea and Hagin at the
January 23 meeting at Corvino's, she also testified that not
all of the persons present at that meeting signed cards that
night and that Killea had mentioned signing a card prior to
the meeting at Corvino's. I therefore conclude, in agree-
ment with the contentions of General Counsel, that the
District 1199 authorization cards executed by Schwartz,
Hagin, Killea, Lee, Wacher, Milicia, Anderson, and Pink-
rah were signed on Janaury 22, prior to Franklin's recogni-
tion of Local 298.13 Of these eight employees, Killea, Pink-
rah, Schwartz, and Wacher had previously signed cards for
Local 298.
There was no evidence that anyone in a supervisory or
agency capacity with Franklin was aware of the activity on
behalf of District 1199 prior to Franklin's recognition of
Local 298.
Buck asked Bailey if he wanted to join; Bailey replied that
he was not sure. Neither of the union representatives had a
card for Bailey to take at that time.14
On February 14, Local 298 conducted a meeting in
Franklin's dining room. According to Buck, the purpose of
the meeting was to explain the requirement and advantage
of signing a card for Local 298. Present throughout the
meeting was Director of Nursing Judith Tucker, 5 Tucker
did not speak or otherwise participate in the meeting.
Local 298's authorization cards were passed out, as was
a list of benefits similar in a format and content to that
which had been shown employees during the initial orga-
nizing phase. The benefits, however, were slightly different,
with more holidays, sick leave, and insurance but slightly
less in annual wage increases. The list of benefits was head-
ed:
Local 298 A.F.L. C.I.O.
EFFECTIVE FEBRUARY 15, 1975
ALL EMPLOYEES SHALL RECEIVE
It concluded, as did the original list:
MUST JOIN UNION AFTER 30 DAYS.
G. Events Post-Recognition
Employee Oscar Bailey testified about conversations
with Lafferty in what would appear to be early February.
In the first conversation, she asked him if he wanted to join
Local 298, told him that Local 298 was a union which was
coming in and that he had 30 days to join the union or be
terminated. In the second conversation, the same day, she
repeated her request that he join and told him that it was
for his own good.
About a week later, as he was coming to work, Bailey
was told by Lindenbaum that there were two union men
upstairs, posting a notice rescheduling a union meeting to
February 14 (which would place this conversation around
February 12.) He went upstairs and met Buck and Faran-
go. He introduced himself and asked for information about
the Union. Buck gave him a description of the benefits it
had wrested from Franklin' s management . He asked Buck
how Local 298 had come to Franklin and become the rep-
resentative . Buck told him that Lindenbaum had joined an
association, that all members of the association were under
Local 298's jurisdiction and that the employees had no
choice; they had to join or be terminated. Some mention
was made of an association contract. In response to a ques-
tion , Bailey was told that once the nursing home was under
Local 298's jurisdiction, no other union could come in.
13 In so concluding, I am not unmindful of certain inconsistencies be-
tween Lee's testimony and her pretrial statements in regard to the dates and
places various events took place, as exemplified by the statement in her May
28 letter to the Board purporting to correct the date of her card from Janu-
ary 23 to January 22. In that letter , she stated that she signed her card at the
meeting with Al Evanoff. At the hearing, she testified that she received the
card from Evanoff but signed it at the convalescent home . Similar changes
from her pretrial statements appeared in regard to her attendance at one of
two meetings at Corvino's and the date of a conversation between Anderson
and Lindenbaum . Such inconsistencies weigh against crediting Lee. On bal-
ance , however, considering that three cards were dated on January 22 and
that Lee's testimony was both plausible and corroborated, I am constrained
to reach the conclusion as set forth above.
The employees were told that Local 298 was repre-
senting the employees of Franklin because Franklin had
joined an association of nursing homes and that, because
of that representation, they would receive certain benefits
and increases. According to Buck, he told them that once
the contract was ratified and signed, the benefits would be
retroactive to January 23. He did not tell them when it
would be signed. The list of benefits shown to employees,
Buck testified, was the sum total of the completed negotia-
tions with Franklin. He further testified that he had no
discussion or negotiations with Lindenbaum regarding
union security.
In regard to union security and the requirement set forth
at the end of the list of benefits, Buck stated that the em-
ployees had 30 days from the signing of the contract to sign
up with the union, that those who joined up after 30 days
would have to pay a $25 initiation fee. In response to a
question, Buck told the employees that if they did not sign,
they would be discharged.i6 In the course of the meeting,
Linda Lee repeatedly questioned Buck in regard to the
Modern Nursing Home Association, how Local 298 came
upon the scene at Franklin, how Lafferty came to be stew-
ard and whether employees would be discharged if they
did not join Local 298. She also asked for literature con-
cerning both the Association and Local 298. Buck asked
her who she was and why she was giving them a hard time.
She received no literature on either the Association or the
Union. At least one other employee, James Bonner raised
similar questions and received a reply similar to that given
Lee.
14 The foregoing is from the uncontradicted and credible testimony of
Bailey. Neither Lafferty nor Buck testified as to these conversations.
15 To the extent that the mutually corroborative statements of Lafferty,
Bonner. and Lee placing Tucker at the meeting contradict Tucker's testimo-
ny that she was only in the dining room to control unruly patients, I credit
the employees.
16 Linda Lee's testimony. that employees were told that they would be
discharged if they did not join by February 15. is inconsistent with other,
more plausible evidence, including the list of benefits given to the employ-
ees.
1306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On about February 16, employee Milicia was asked by
Tucker whether she was going to join the Union. She told
Tucker that she was not going to join and Tucker told her
that she had 30 days in which to make up her mind. On
February 20, Lafferty came into the home while Milicia
was working and asked Milicia and another employee if
they were going to join. They both said that they were not
joining and Lafferty told them, "you have a week to decide
or two weeks to find different employment ... ."
Around the third week of February, Bailey was called
into Tucker's office where Tucker was discussing the union
with another employee, Joann Stibal. Tucker told Bailey
that he had 30 days within which to join or he would be
terminated . She told him that he should not wait until the
last minute because he might decide not to join and quit on
the spot. He was given no reference point from which the
30 days began to run. However, he was told that he had a
2-week grace period during which time he could join with-
out payment of the initiation fee. He asked Tucker how
Local 298 could come in and "take over" and was told only
that Local 298 was, in Tucker's experience, "one of the less
violent unions she had anything to do with." Several times
thereafter, Tucker asked Bailey whether he was going to
join Local 298.17
Around March 7, Local 298 held another meeting for
Franklin's employees, at Corvino's Restaurant. Bailey was
told of the meeting by Tucker and went there on his break.
He again asked Buck to explain what was going on and
how the union could just come in and "take over." Buck
told him that they had no choice because the home was
under Local 298's jurisdiction because of the home's mem-
bership in an association. Bailey asked how they could
have a union without an election and Buck told him, "your
election was actually when you signed the cards." Bailey
protested that this should have been told to the employees
when they were asked to sign.18
H. The Discharge of Linda Lee
Around February 15, Lafferty telephoned Linda Lee to
ask whether Lee was going to join Local 298. Lee told her
that she was undecided and was told, in turn, that it had
been decided to give her 30 days from that day within
which to decide. About a week later, as Lee recalls it, Laf-
ferty called her again and asked her if she had made up her
mind about joining the union. Lee said that she had not
and Lafferty told her that she did not have 30 days to
decided, that she only had until the end of the following
17 I credit the foregoing specific testimony of Oscar Bailey as against that
of Tucker, who admitted that Lafferty told her that employees who had not
joined the union would have to be replaced . gave her the names of some
employees who had not joined Local 298. possibly including Bailey's and
who did not specifically deny. but could only state that she did not recall,
discussing Local 298 with Bailey.
19 1 credit this testimony of Bailey notwithstanding that his pretrial affida-
vit omitted any mention of these statements in describing this meeting.
Bailey's explanation that he was thinking of so many things in the course of
the interview that he forgot about these statements at the interview 's conclu-
sion was not implausible . I note that said affidavit related similar statements
by Buck in an earlier conversation . I note , also, that Buck did not contradict
Bailey's testimony.
week because Tucker wanted to give those employees who
were not going to join the union 2 weeks' notice to find
another job. Lee stated that she would take the week to
decide and would let Lafferty know by Friday. However,
on the following day, Lafferty called again and said that
she had to know, immediately, whether Lee was going to
join the union. Lee said that she was not and Lafferty stat-
ed that she would have to tell Tucker. Several hours later,
after being so authorized by Wardlow, Tucker called Lee
and confirmed that Lee was not going to join Local 298.
She told Lee not to report for her next workday, that she
was being terminated and replaced because she was not
joining the union.19
On February 28, Tucker called Lee and offered her rein-
statement to her former position. Lee accepted and re-
turned to work on March 10.
IV. ANALYSIS AND CONCLUSIONS
A. Unlawful Assistance and Support-Section
8(a)(2)-8(b)(1)(A)
To summarize, I find the following chain of events oc-
curred herein: Franklin joined an association of nursing
homes with knowledge that its constituent members main-
tained collective-bargaining contracts with Local 298. Lo-
cal 298 appeared at Respondent Employer's premises, at
the suggestion of the president of the association, almost
immediately upon Franklin's acquisition of membership.
On behalf of Local 298, Buck demanded recognition and
the signing of a contract. Franklin's executive director Lin-
denbaum asked for proof of majority status, agreed to the
suggested unit description, indicated a willingness to go
along with some increases in benefits and told Buck how
much employee support he would need to achieve a major-
ity. Wardlow, Franklin's administrator and Tucker, its di-
rector of nursing, then selected and designated the employ-
ee, Lafferty, who would be appointed shop steward and
assist Local 298. With the assistance of Lafferty, and with
regard to at least six unit employees (Austin, Bolyog, Co-
gan, Bonner, Tucker, and Killea) at the suggestion or urg-
ing of Tucker, Lindenbaum, and/or Wardlow, employees
were brought to or went and spoke with the union organiz-
ers, on company property, during working time. Those who
were brought to Buck and Farango by Lafferty, of whom
there were at least 12, were told by Lafferty that manage-
ment had granted permission for them to leave their work
stations for this purpose. They were also told that they
"were going to have a union," that "there were cards to be
signed," that "they had to go into the conference room to
sign the card," that they had 30 days within which to join
19 The foregoing testimony of Lee was essentially corroborated by Tucker
who acknowledged that Lafferty had told her that several people, including
Lee. had not joined the union, that there was a deadline for these people to
join and that if they didn't join by that deadline, they would have to be
replaced. Tucker admitted checking with Wardlow and being authorized to
terminate Lee for failure to join Local 298. It is also corroborated by
Lafferty's admission that she called Lee several times regarding the joining
of the union. Lafferty's testimony to the effect that Tucker discharged Lee
for absenteeism is without support in the record and is not credited. Lafferty
was a reluctant, if not hostile witness called by General Counsel and may
have been unwilling to assume responsibility for Lee's discharge.
FRANKLIN CONVALESCENT CENTER 1307
the union and that they would receive certain benefits.
They were shown the list of benefits, prepared by Local
298, already entitled with their employer's name, which
concluded with the statement "MUST JOIN UNION AFTER 30
DAYS ." In the conference room , union representatives urged
employees to sign the membership/authorization cards. On
at least one such occasion Tucker was present (Killea) and
employees observed the union agents in cordial discussion
with Lindenbaum and Wardlow. At least some of the em-
ployees were given or received the impression from Laffer-
ty and Buck that Local 298's representative status was al-
ready an established fact.20 Employees were told that if
they joined within 30 days they could avoid paying an initi-
ation fee and were told, or otherwise received the carefully
fostered impression, that if they did not sign after 30 days
they would be discharged 2'
When Buck secured signed cards from what appeared to
be a majority of the employees, he presented the cards to
Lindenbaum. Lindenbaum personally examined the cards,
without the intervention of any neutral third party, and
granted recognition within the hour. Less than 3 days had
elapsed from Local 298's first appearance to the grant of
recognition.
The principal issue herein is whether Franklin's coopera-
tion with the efforts of Local 298 to organize its employees,
as described above, surpassed the line of permissibility and
constituted unlawful assistance and support. As was stated
in Longchamps, Inc. and its Wholly Owned Subsidiary,
S & B Restaurant of Huntington, d/b/a Steak and Brew of
Huntington, 205 NLRB 1025, 1031 (1973):
The quantum of employer cooperation which surpass-
es the line and becomes unlawful support is not sus-
ceptible to precise measurement. Each case must
stand or fall on its own particular facts.
Respondents herein rely upon the Board's decision in
Longchamps and its predecessors, Jolog Sportswear, Inc.
and Jonathan Logan, Inc., 128 NLRB 836 (1960), affd. sub.
nom. Mary Kimbrell Mildred Poteat, et al. for themselves and
other employees of Jolog Sportswear Inc. v. N.L.R.B., 290
F.2d 799 (C.A. 4, 1961), and Coamo Knitting Mills, Inc.,
150 NLRB 579 (1964) to support their position that the
conduct herein did not reach the level of unlawful support.
General Counsel would seek to distinguish the instant case
from those authorities. Other authorities, both antedating
and postdating the line from Jolog to Longchamps, estab-
lish that such distinctions may validly be drawn. In this
20 To the extent that Buck 's testimony in regard to what he told these
employees contradicts that of employees to the effect that Buck created an
impression that Local 298 was already their collective -bargaining represen-
tative, I credit the employees . In so concluding, I place reliance upon Buck's
demeanor which reflected less than full candor , the implausibility of certain
aspects of his testimony , the list of benefits shown to Lindenbaum and the
employees which would foster such an impression , the statement by Laffer-
ty to other employees which had to derive from her conversations with
Buck , and the statements attributed to Buck by the credible testimony of
Oscar Bailey, wherein Buck indicated that Franklin was under Local 298's
jurisdiction because of Franklin's membership in the Modern Nursing
Home Association . These latter statements are some evidence that, at least
in Buck 's mind , the card signing was a formality rather than a requirement.
21 The fact that some employees were able to resist such persuasive cir-
cumstances and avoid signing cards at that time is not relevant as to the
lawfulness or propriety of such pressure.
regard, The Bassick Company, Spring Valley Division, a Di-
vision of Stewart-Warner Corporation, 127 NLRB 1552
(1960), Howard Creations, Inc., 212 NLRB 179 (1974) and
Vernitron Electrical Components, Inc. Beau Products Divi-
sion, 221 NLRB 464 (1975), are of particular interest. A
review of the facts and holdings of these cases is instruc-
tive.
In Jolog, the employer having rejected the union's claim
that it represented the employees by accretion to its exist-
ing bargaining unit, granted permission for the union rep-
resentatives to address its employees in the plant on com-
pany time. The employer's representatives introduced the
union representatives to the employees and remained pre-
sent while the union representatives noncoercively ad-
dressed the employees. Employees were told of advantages
of union membership; they were also told that they were in
a "right-to-work" state and could refrain from joining the
union. No card signing resulted directly from that meeting.
Vigorous campaigning for and against representation fol-
lowed and the employer remained neutral. The card check,
approximately 3 weeks after that meeting, was conducted
by the South Carolina Department of Labor. The Board, in
dealing with these facts, stated:
The Board has never held that mere permission to a
union to address employees on company time is a per
se violation of Section 8(a)(2) of the Act. Such con-
duct, however, has been found to violate this section
of the Act where other unlawful assistance has oc-
curred . . . . (Jolog, supra, at 888, 889).
The Board concluded that the employer's conduct in Jolog
was both isolated and trivial.
Similarly, in Coamo, supra, the employer permitted a
meeting and the distribution of authorization cards on
company property, but during the worktime of only 5 of
the employer's 170 employees. The employer introduced
the union representatives and a company representative
was present during the meeting, but could not and did not
observe the signing of cards. The employer made no effort
to ascertain which employees attended the meeting. The
Union's address to the employees was noncoercive in con-
tent and made clear to the employees that the union was
not yet their representative. A majority signed cards at this
meeting and the employer recognized the Union, without
an outside card check, on the following day. The Board
held that the mere presence of the company representative
during the meeting was insufficient to support a finding
that the employees were coerced in their selection of the
union or that the majority was tainted. The Board also
applied a de minimis rule in regard to the 3 percent of the
work force who were on company time during the meeting.
In Longchamps, a few days after the opening of its res-
taurant, the employer called a meeting to introduce the
newly hired employees to the supervisory staff and explain
the employer's policies. At the end of the employer's pre-
sentation , an employer official introduced union represen-
tatives, turned the meeting over to them, and-together
with other supervisors-left the room. The union represen-
tatives then explained union benefits and distributed au-
thorization cards, 10 of which were immediately signed
and returned to the representatives. Later the same day,
1308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
four employees were directed by a supervisor to leave their
work stations and report to a room where the union repre-
sentatives successfully solicited their authorization card
signatures. Approximately 2-1/2 weeks later, after a card
check by a local governmental agency had affirmed the
Union's card majority, the employer recognized it as the
employees' representative and 2 weeks thereafter executed
a collective-bargaining agreement . The Administrative
Law Judge, whose decision was adopted by the Board,u
found no violation , pointing out that the Employer neither
threatened the employees with reprisals if they did not join
nor promised them benefits if they did join the union, man-
agement did not even urge its employees "in so many
words" to join , management representatives were not pre-
sent when the cards were signed , no other union was seek-
ing to organize the employees at the time and the Union's
majority was verified by an agent of a local governmental
unit.
As noted , other Board cases , treating facts similar to
those of the instant case , have found unlawful support. In
Bassick, the employer advised the Union when it would be
appropriate to organize , indicated a willingness to agree to
an increase in benefits including wages prior to any organi-
zational activity , called a meeting of its employees for the
Union , directed the employees to attend , the meeting was
held on company time and property, management repre-
sentatives opened the meeting , expressed a favoritism to-
ward this Union , and attended the first part of the meeting.
Lower level supervisors told employees that it was a good
union which they should join and such supervisors re-
mained in the meeting . Union representatives assured the
employees that they would get a wage increase , authoriza-
tion petitions were signed at the meeting and the employer
examined those petitions itself immediately after the meet-
ing and granted recognition . The Trial Examiner, in an
Intermediate Report which was adopted by the Board,
stated:
A consideration of the entire record as a whole com-
pels the conclusion, which I find, that the authoriza-
tion petitions did not truly reflect `that complete and
unhampered freedom of choice [of the signers] which
the Act contemplates,' and therefore cannot serve as
the basis for establishing the majority status of Local
1031. Bassick, supra, at 1562.
The Trial Examiner also noted , as an additional basis for
finding a violation , that two other unions had an interest in
these employees , which interests were known , at least to
some extent, by the employer at the time it executed its
contract with the assisted union.
In Howard Creations, the employer:
permitted union agents to come into the plant, use the
company office, and speak to employees on company
time . He provided them with a list of employees and
an interpreter, and told the interpreter to ask each em-
ployee who was called into the office for an interview
to join.
The employer was present for portions of the interviews,
22 Then Chairman Miller vigorously dissented.
going back and forth from the plant to the office while they
were going on. The Union was then recognized and a con-
tract signed on the basis of cards secured under the fore-
going conditions. The employer's conduct was found to be
assistance to the union in the solicitation of the union au-
thorizations cards, in violation of Section 8(a)(2).
The facts in the most recent case in this line, Vernitron,
succinctly stated, were as follows: the employer was in-
formed by his corporate headquarters that representatives
of the union which represented the employees of the corpo-
ration's other plants would be coming to organize the plant
involved. The supervisors, pursuant to instructions, assem-
bled the employees for meetings with the union representa-
tives and told some employees who asked either that what-
ever they did about the union was all right with the
employer or that the employer wanted this union. The
meetings were held on company property and time and the
employees were told by the organizers that the union repre-
sented the company's employees at other plants, that they
would get a raise and other benefits if they signed up, and
that the union "would obtain a union-security clause under
which they would have to join Local 210, 30 days after a
contract was signed, regardless of whether they executed
union cards that day or not." Some employees were misled
to believe that they might as well sign because more than
half the unit employees had already done so. Supervisors
were present for all or part of each meeting and, while not
speaking, were in a position to observe the employees while
they executed authorization cards. The Union secured
signed cards from a substantial majority by the end of
those meetings and the employer, after inspecting the cards
himself, granted recognition the same day. The Board,
finding that the foregoing conduct by Vernitron provided
unlawful assistance to the union in violation of Section
8(a)(2), specifically distinguished these facts from those in
Longchamps, Jolog, and Coamo, as follows:
Here, as in Longchamps, there were no employer
threats or promises, and no other labor organization
was involved as of the date of Local 210's organiza-
tional meetings . But, supervisors were present and ob-
served the solicitation and execution of the Union's
authorization cards, and no neutral source was
brought in to verify the card majority. Further, the
instant recognition granted by Respondent prevented
employees who might have felt pressured by the pres-
ence of their supervisors from having the opportunity
to take subsequent action to either revoke their au-
thorizations or bring another union into the organiza-
tional campaign. In Longchamps, by contrast, there
was a 2-1/2 week hiatus between the date the authori-
zations were solicited and the date recognition was
granted.
... we note that in Jolog no supervisors or other man-
agement personnel were present when the authoriza-
tion cards used in seeking recognition were executed;
a card check was conducted by the representative of a
governmental agency; recognition was not granted
until I month after the union's meeting on company
premises ; and, during the interim, the employer issued
statements assuring employees of their free choice and
FRANKLIN CONVALESCENT CENTER 1309
its neutrality. In Coamo, attendance at the union meet-
ing was not compulsory; all but 5 out of 170 employ-
ees at the meeting were on nonwork, nonpaid time;
and no supervisor or other employer official was in a
position to view the employees executing the authori-
zations.
The Board found that, in Vernitron, a set of factors existed
which, in combination, constituted unlawful assistance: (a)
considerable indirect pressure placed upon employees by
being directed and paid to attend union meetings during
worktime; (b) direct pressure by being solicited to sign au-
thorizations while supervisors were in a position to observe
whether or not they signed, and (c) the employer extended
recognition within a few hours without seeking a neutral
party's verification of the Union's alleged majority status.
It is my conclusion that the facts in the instant case are
more nearly comparable to those of Bassick, Howard Crea-
tions, and, particularly, Vernitron, than to those of Jolog,
Coamo, and Longchamps. Thus, in the instant case, as in all
of the foregoing cases except Coamo, the union representa-
tives spoke to employees on company paid time and prop-
erty; as in Howard Creations, the employer advised the
Union as to how many cards were neded for a majority; an
employee was assigned to assist the union and did so by
indicating that the signing of cards was expected or re-
quired, as in Howard Creations; the employer indicated a
willingness to grant certain benefits, as in Bassick; the em-
ployees were given the impression that the Union's bar-
gaining representative status was already determined (a
factor Lindenbaum could reasonably have garnered from
his examination of Local 298's prepared list of benefits), as
in Vernitron; supervisors were present for portions of the
Union's meetings with employees, as in Jolog, Coamo, Bas-
sick, Howard Creations, and Vernitron; and most signifi-
cantly, as in Coamo, Bassick, and Vernitron, recognition
was granted hastily and without verification of Local 298's
majority status by an independent and neutral third party.
Indeed, the haste with which recognition was granted in
the instant case takes on special significance in view of the
fact that several employees-enough to have affected the
Union's majority status-sought unsuccessfully to revoke
their authorizations within a week of their initial execution.
Additional employees had signed authorization cards for
District 1199 immediately subsequent to the January 23
recognition, which act would have had the same effect as
revocation, even without Respondent Franklin's knowl-
edge, had it occurred prior to recognition.23 This effect of
hasty recognition upon employees who might wish to re-
voke their authorizations or seek representation from an-
other union was precisely the concern voiced by the Board
in finding Vernitron's conduct violative.
Accordingly, I find that by assisting Respondent Local
298 in its efforts to organize its employees, Respondent
Franklin has given assistance and support to Local 298 in
violation of Section 8(a)(2) of the Act. By accepting such
assistance and support, and the exclusive recognition
which derived from it, Respondent Local 298 has violated
Section 8(b)(1)(A) of the Act. International Ladies' Garment
Workers Union v. N.L.R.B.,-[Bernhard-Altmann] 366 U.S.
731 (1961).
Additionally, the foregoing findings of violation by both
Respondents herein are validly based upon another
ground, Local 298's lack of an uncoerced majority, Bern-
hard-Altmann, supra.
As previously found, the unit as "stipulated" contained
45 employees, the 43 agreed to at the hearing plus Brown
and Hagin. Buck proffered the signed authorization cards
of 28 employees purportedly within that unit . However,
four of those cards, those signed by Killea,24 Pinkrah,
Schwartz, and Wacher, were "not reliable evidence of the
signers' selection of the Respondent Union as their exclu-
sive bargaining representative" because those employees
had also signed authorization cards for District 1199 prior
to Franklin's grant of recognition to Local 298. This is so
whether or not either Respondent was aware of activity on
behalf of District 1199 as "the grant of recognition to a
minority union violates the Act without regard to the par-
ties' good or bad faith." Allied Supermarkets, Inc., supra at
927; Bernhard-A ltmann, supra. Thus, the number of ostensi-
bly valid cards possessed by Local 298 dropped to 24. Ad-
ditionally, I would exclude the authorization card executed
by Catherine Lafferty who was asked to assist Local 298
and become its shop steward by Respondent Employer's
Administrator Wardlow. Such an introduction to Respon-
dent Union could not help but prevent Lafferty from exer-
cising a free choice in regard to union affiliation. I would
also exclude the cards of Harriet Bolyog and Joanne Co-
gan, who were sent to meet the union representatives by
Tucker and who, upon meeting them, were told that Local
298 had already completed its negotiations with Franklin.
For the same reasons, I would exclude the cards executed
by Virginia Bonner , Barbara Pilalides, Sandra Holliday,
Isabel Pagano, and Ella Posten. Each of these employees
was led to believe, both by the circumstances of the meet-
ings being held on company time and property, and by the
verbal and written statements of Buck and Lafferty, that
the decision had been made for them, that they were re-
quired to join the union, that there was a direct financial
gain if they joined immediately (waiver of the initiation
fee) and serious economic consequences (a required pay-
ment of an initiation fee or discharge) if they did not join.
Respondent Union's statements regarding the necessity of
joining to avoid discharge were not presented to these em-
ployees in the form of a prediction of what might happen if
a union contract were signed. The impression created was
that such a contract already had been reached. Cards so
secured are not valid designations of representative. Hunter
Outdoor Products, Inc., 176 NLRB 449 (1969); but cf. Ma-
rin Chatmur, Inc. d/b/a Holiday Inn, 188 NLRB 68 (1971).
I conclude that of the 28 cards of unit employees ten-
dered by Buck, at least 12 were either invalid designations
because the signatories had previously executed cards for
another union or were tainted by the pressures levied upon
the signers by both Respondents. At most, therefore, Local
23 Yankee Department Stores, Inc., a Subsidiary of Hartfield-Zodys, Inc.,
d/b/a Zodys, Elbhart, Indiana, 211 NLRB 306 (1974); Allied Supermarkets, 24 Killea's card is also subject to rejection because of Tucker's presence
Inc., 169 NLRB 927 (1968). throughout her meeting with Buck, including when she signed the card.
1310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
298 processed valid authorizations for representation from
16 employees in a unit of 45 . The grant of recognition to
such a minority union violates Section 8(a)(2) and the ac-
ceptance of exclusive recognition under such circum-
stances violates Section 8(b)(1XA) of the Act. Bernhard-
Altmann, supra; Allied Supermarkets, Inc., supra.
As there was no evidence that the organizational activity
on behalf of District 1199 came to Respondent Employer's
attention prior to its January 23 grant of recognition to
Local 298 , nor any evidence that District 1199 ever made
any claim of representation, I find that there were no rival
claims extant on January 23 and the conduct of Respon-
dents , though violative for other reasons , did not contra-
vene the Board 's Midwest Piping doctrine. Midwest Piping
and Supply Co., Inc., 63 NLRB 1060 (1945).
B. Interference, Restraint and Coercion-Independent
Violations of Section 8(a)(1) and 8(b)(1)(A)
Counsel for General Counsel had contended that Re-
spondent Employer violated Section 8(a)(1) of the Act by
interrogating and threatening employees with discharge if
they did not join Local 298 and that Respondent Local 298
violated Section 8(b)(IXA) by similar threats and by mis-
representing to employees that it was already their collec-
tive-bargaining agent . These contentions are well founded.
The record reflects that Catherine Lafferty was selected
by Respondent Employer to act for it and for Respondent
Union in helping to secure signed authorizations . She re-
leased employees from their work on behalf of the Employ-
er. She was appointed Local 298's shop steward and was so
represented to the employees. She was thus the agent of
both the Employer and the Union and both are responsible
for her actions within the scope of this authority . Broyhill
Company, 210 NLRB 288 (1974); N.L.R.B . v. Dayton Mo-
tels, Inc., d/b/a Holiday Inn of Dayton, 474 F.2d 328, 330-
331 (C.A. 6, 1973); Local 825, International Union of Oper-
ating Engineers (Morin Erection Co., Inc.) 168 NLRB 1
(1967).
The record further reflects that both prior to and after
the purported recognition , Lafferty told employees that
they had to join the Union and that they had 30 days, or
less as in the case of her statements to Milicia and Lee, to
sign or be terminated . Similar statements were made by
Buck , orally and in the lists of benefits shown employees,
both before and after the invalid recognition . In addition,
Director of Nursing Tucker was present at the union meet-
ing on February 14 when Buck passed out the second list
of benefits and told employees that Local 298 was repre-
senting the employees, that they were going to get certain
benefits because of that representation and that once (not
if) the contract was signed , they would have 30 days to join
the Union or be terminated. Tucker, herself, made similar
statements to both Bailey and Milicia during the third
week in February and further questioned these employees
and Linda Lee as to whether or not they were going to join
the Union.
Statements to employees telling them that they must join
the Union as a condition of continued employment, when
such a requirement is not based upon a valid union securi-
ty clause , restrains and coerces employees in the exercise of
their statutory rights. In the instant case , there was not, at
any point in time , a valid union security clause; certainly
there was none prior to recognition, there could be none in
view of the invalid recognition, and even if the recognition
were valid, union security was neither discussed nor agreed
to by the employer. Such statements violate Section
8(a)(1) and 8(b)(1)(A), Isaac Putterman d/b/a Rockville
Nursing Center, 193 NLRB 959, 977 (1971); Hunter Out-
door Products, Inc., supra. As was stated in Hunter, at 456:
It would be difficult to imagine a more threatening
and coercive representation in the course of soliciting
union authorizations. It would be unthinkable to hold
that union cards signed under such circumstances reli-
ably reflected the employees' free choice.
In addition to its responsibility for the statements uttered
by Tucker and Lafferty, Respondent Employer is responsi-
ble for those statements uttered by Buck at the February
14 meeting in Tucker's presence and not disavowed by her.
Holiday Inn, 188 NLRB 68, 71 (1971). Similarly, as Linden-
baum was shown Local 298's list of benefits, headed with
the employer's name and setting forth the requirement of
joining the Union within 30 days, and did not prevent it
from being distributed to its employees, Respondent
Franklin must share in the responsibility for the coercive
effect of that distribution.
Finally, in this regard, I find merit to General Counsel's
contention that Tucker's questioning of employees con-
cerning whether or not they were going to join the union
constituted interrogation in violation of Section 8(a)(1) of
the Act. Such interrogation was all the more coercive in
light of the repeated admonitions to join the Union within
30 days or be discharged.
C. The Discharge of Linda Lee-Section 8(a)(3)
and 8(b)(2)
Little, if any, real dispute exists in regard to the dis-
charge of Linda Lee. Lee openly questioned Local 298's
presence at Franklin, campaigned for District 1199 and
refused, when asked by both Lafferty and Tucker, to join
Local 298. Lafferty reported Lee's last refusal to Tucker
and told Tucker that there was a deadline for the employ-
ees to join. Tucker sought and received Wardlow's authori-
zation to discharge Lee and Lee was expressly discharged
for her refusal to join Local 298. There was no collective-
bargaining agreement between the Respondents herein
and, in the absence of a contract and a valid union-security
clause , with a full 30-day grace period, Lee's discharge, and
the causation thereof by Lafferty, Local 298's agent, was
clearly violative of Section 8(a)(1) and (3) and 8(b)(1)(A)
and (2) of the Act.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The unfair labor practices of Respondent Employer and
Respondent Union set forth in sections III and IV, above,
occurring in connection with the operations of Respondent
Employer set forth 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
FRANKLIN CONVALESCENT CENTER 1311
labor disputes burdening and obstructing commerce and 7. The aforesaid unfair labor practices are unfair labor
the free flow thereof.
CONCLUSIONS OF LAW
1. Tuschak/Jacobson , Inc., t/a Franklin Convalescent
Center is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Amalgamated Local 298, AFL-CIO and District
1199, National Union of Hospital and Health Care Em-
ployees , Retail , Wholesale and Department Store Union,
AFL-CIO are labor organizations within the meaning of
Section 2(5) of the Act.
3. By unlawfully assisting Local 298 in obtaining union
application for membership/authorization for representa-
tion cards from its employees , recognizing and granting
exclusive collective -bargaining rights to Local 298 when
said Union did not represent an uncoerced majority of the
employees in the agreed -to unit; by telling employees that
Local 298 was their collective -bargaining representative
and that they had to sign union application for member-
ship/authorization for representation cards as a condition
of continued employment at a time when Local 298 had
not been validly recognized as the collective -bargaining
representative of its employees and no valid union security
clause was in effect ; and by interrogating its employees
concerning their union membership , activities and desires,
Respondent Employer has interfered with, restrained, and
coerced its employees in the exercise of their Section 7
rights in violation of Section 8(a)(2) and (1) of the Act.
4. By discriminatorily discharging Linda Lee because of
her activities on behalf of District 1199 and her refusal to
join Respondent Local 298, Respondent Employer has in-
terfered with , restrained , and coerced its employees in the
exercise of their Section 7 rights in violation of Section
8(a)(3) and (1) of the Act.
5. By accepting recognition as the exclusive representa-
tive of Franklin 's employees in the agreed -to unit at a time
when it did not represent an uncoerced majority of said
employees ; by telling employees that it was their exclusive
collective-bargaining representative and that they were re-
quired to sign its application for membership and authori-
zation for representation cards as a condition of continued
employment at a time when it had not been validly recog-
nized as the collective-bargaining representative of said
employees , and at a time when no valid union -security
clause existed Respondent Union has restrained and
coerced employees in the exercise of their Section 7 rights
in violation of Section 8(b)(1)(A) of the Act.
6. By attempting to cause and causing the discharge of
Linda Lee because of her activities on behalf of District
1199 and her refusal to join Respondent Local 298, Re-
spondent Local 298 has restrained and coerced employees
in the exercise of their Section 7 rights in violation of Sec-
tion 8(b)(1)(A) and 8(b)(2) of the Act.
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that both Respondents engaged in certain
unfair labor practices , in violation of Sections 8(a)(1), (2),
and (3) and 8(b)(I)(A) and (2), I shall recommend that they
cease and desist therefrom and that they take the following
affirmative actions which are necessary to effectuate the
policies of the Act.
I have found that the Respondent Employer unlawfully
assisted Respondent Union to organize its employees and
recognized Respondent Union on January 23, 1975, as the
exclusive collective -bargaining representative of certain of
its employees in an agreed -to unit and that Respondent
Union accepted such recognition as the exclusive collec-
tive-bargaining representative of said employees at a time
when Respondent Union had not been designated or se-
lected as the collective-bargaining representative of an un-
coerced majority of said employees . By such conduct, Re-
spondent Employer has interfered with , restrained, and
coerced its employees in the exercise of their right freely to
select their own bargaining representative , and has accord-
ed unlawful assistance and support to Respondent Union
and Respondent Union has restrained and coerced said
employees in the exercise of those same rights . In order to
dissipate the effect of these unfair labor practices , Respon-
dent Employer shall withdraw and withhold recognition
from Respondent Union as the exclusive representative of
its employees in the aforementioned unit and Respondent
Union shall cease maintaining or giving effect to its current
recognition by Respondent Employer , or any renewal or
extension thereof , until such time as Respondent Union
shall have been certified by the Board as the exclusive rep-
resentative of the employees in question.
Having found that Respondent Employer discriminato-
rily discharged Linda Lee on February 21, 1975, in viola-
tion of Section 8(a)(3) and ( 1) of the Act , and that Respon-
dent Union caused such discrimination , thereby violating
Section 8(b)(2) and (1)(A) of the Act , I shall recommend
that Respondent Employer and Respondent Union, jointly
and severally, make said Linda Lee whole for any loss of
pay she has suffered by reason of such discrimination, by
payment to her of a sum of money equal to the amount of
wages she would have earned between the date such dis-
crimination began and March 10, 1975, the date on which
she was reinstated to her former position , less any interim
earnings , together with interest on said sum at the rate of 6
percent per annum . Isis Plumbing & Heating Co., 138
NLRB 716 (1962).
Upon the basis of the foregoing findings of fact and con-
clusions of law, and the entire record in this proceeding,
and pursuant to Section 10(c) of the Act, I hereby issue the
following recommended:
1312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER 25
A. Tuschak/Jacobson , Inc., t/a Franklin Convalescent
Center, Franklin Park , New Jersey , its officers , agents, suc-
cessors, and assigns , shall:
1. Cease and desist from:
(a) Assisting or contributing support to Respondent Lo-
cal 298, by helping in the organization of its employees or
by recognizing or bargaining with it as the exclusive repre-
sentative of its employees for the purpose of collective bar-
gaining unless and until Respondent Local 298 is certified
by the Board as the collective-bargaining representative of
said employees pursuant to Section 9(c) of the Act.
(b) Discharging or in any other manner discriminating
against its employees in regard to their hire or tenure of
employment or any terms or conditions of employment in
order to encourage membership in Respondent Local 298
or any other labor organization or in order to discourage
membership in District 1199 or any other labor organiza-
tion.
(c) Threatening employees with discharge if they re-
fused to join Respondent Local 298 or any other labor
organization or interrogating employees concerning their
union membership , activities and desires.
(d) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of the
right to self-organization, to form labor organizations, to
join or assist any labor organization , to bargain collectively
through representatives of their own choosing , and to en-
gage in other concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection as guar-
anteed in Section 7 of the Act , or to refrain from any and
all such activities, except to the extent that such right may
be affected by an agreement requiring membership in a
labor organization as a condition of continued employ-
ment, as authorized in Section 8(a)(3) of the Act as modi-
fied by the Labor -Management Reporting and Disclosure
Act of 1959.
2. Take the following affirmative action which it is
found will effectuate the policies of the Act:
(a) Withdraw and withhold all recognition from Re-
spondent Local 298 as the collective-bargaining representa-
tive of its employees unless and until said labor organiza-
tion has been duly certified by the National Labor
Relations Board as the exclusive representative of such em-
ployees.
(b) Jointly and severally with Respondent Local 298,
make Linda Lee whole for any loss of earnings she may
have suffered as a result of her discharge, in the manner set
forth herein in the section entitled "The Remedy."
(c) Preserve and, upon request , make available to the
Board or its agents , for examination and copying , all pay-
roll records , social security payment records , timecards,
25 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings.
conclusions , and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations . be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
personnel records and reports , and all other records neces-
sary to analyze the amount of backpay due under the terms
of this Order.
(d) Post at its Convalescent Center in New Brunswick,
New Jersey , copies of the attached notice marked "Appen-
dix A ." 26 Copies of said notice , on forms provided by the
Regional Director for Region 22 after being duly signed by
the Respondent Employer's representative, shall be posted
by Respondent Employer immediately upon receipt there-
of, and be maintained by it for 60 consecutive days thereaf-
ter, in conspicuous places , including all places where no-
tices to its employees are customarily posted . Reasonable
steps shall be taken by Respondent Employer to insure
that said notices are not altered, defaced , or covered by
any other material.
(e) Post at the same places and under the same condi-
tions as set forth in (d) above , as they are forwarded by the
Regional Director, copies of Respondent Local 298's no-
tice marked "Appendix B."
(f) Mail signed copies of the attached notice marked
"Appendix A" for posting at Respondent Local 298's of-
fices and meeting halls.
(g) Notify the Regional Director for Region 22, in writ-
ing, within 20 days from the date of this Order , what steps
the Respondent Employer has taken to comply herewith.
B. Respondent , Amalgamated Local 298 , AFL-CIO,
Union City, New Jersey , its officers , agents , and represen-
tatives , shall:
1. Cease and desist from:
(a) Accepting exclusive recognition as the representative
of Respondent Franklin 's employees at the Franklin Con-
valescent Center in New Brunswick , New Jersey , or enter-
ing into collective bargaining with Respondent Franklin as
the exclusive representative of those employees unless and
until certified by the Board as the exclusive collective-bar-
gaining representative of said employees pursuant to Sec-
tion 9(c) of the Act.
(b) Causing or attempting to cause Respondent Em-
ployer or any other employer to discharge or in any other
manner discriminate against its employees in regard to
their hire or tenure of employment or any terms or condi-
tions of employment in order to encourage membership in
Respondent Local 298 or any other labor organization or
in order to discourage membership in District 1199 or any
other labor organization.
(c) Restraining or coercing employees by falsely telling
them that the Union has already been selected as their
collective-bargaining representative and that they are re-
quired to join this union as a condition of continued em-
ployment.
(d) In any like or related manner restraining or coercing
Respondent Franklin 's employees in the exercise of the
rights guaranteed them in Section 7 of the Act , except to
the extent that such rights may be affected by an agree-
ment requiring membership in a labor organization as a
26 In the event 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 Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
FRANKLIN CONVALESCENT CENTER 1313
condition of employment as authorized by Section 8(a)(3)
of the Act.
2. Take the following affirmative action, which is neces-
sary to effectuate the policies of the Act:
(a) Jointly and severally with Respondent Franklin,
make Linda Lee whole for any loss of earnings she may
have suffered as a result of her discharge, in the manner set
forth herein in the section entitled "The Remedy."
(b) Post at its offices and meeting halls copies of the
attached notice marked "Appendix B." 27 Copies of said
notice, on forms provided by the Regional Director for
Region 22, after being duly signed by Respondent's Local
27 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."
298's representative shall be posted by Respondent Local
298 immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to members are
customarily posted. Reasonable steps shall be taken by Re-
spondent Local 298 to insure that said notices are not al-
tered, defaced, or covered by any other material.
(c) Post at the same places and under the same condi-
tions as set forth in (b) above, as they are forwarded by the
Regional Director, copies of Respondent Franklin's notice
marked "Appendix A."
(d) Mail signed copies of the attached notice marked
"Appendix B" to the Regional Director for posting at
Franklin Convalescent Center.
(e) Notify the Regional Director for Region 22, in writ-
ing, within 20 days from the date of this Order, what steps
the Respondent has taken to comply herewith.