River Manor Health Related Facility

National Labor Relations Board - Board Decisions

May 28, 1976

224 N.L.R.B. 227 (N.L.R.B. 1976)

RIVER MANOR HEALTH RELATED FACILITY 227
Samuel Liefer and Harry Ostreicher, a Copartnership,
d/b/a River Manor Health Related Facility I and
Local 144 , Hotel, Hospital, Nursing Home and Al-
lied Health Services Union, affiliated with Service
Employees International Union , AFL-CIO and Lo-
cal 531 , International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of Ameri-
ca, Party in Interest
Samuel Liefer and Harry Ostreicher , a Copartnership,
d/b/a River Manor Health Related Facility and Lo-
cal 1115, Joint Board , Nursing Home and Hospital
Employees Division and Local 531, International
Brotherhood of Teamsters , Chauffeurs , Warehouse-
men and Helpers of America, Party in Interest
Local 531, International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of Ameri-
ca 2 and Local 1115 , Joint Board, Nursing Home
and Hospital Employees Division and Samuel Lief-
er and Harry Ostreicher , a Copartnership, d/b/a
River Manor Health Related Facility, Party in In-
terest
Samuel Liefer and Harry Ostreicher , a Copartnership,
d/b/a River Manor Health Related Facility and Lo-
cal 1115, Joint Board , Nursing Home and Hospital
Employees Division. Cases 29-CA-4187, 29-CA-
4187-2, 29-CA-4245, 29-CB-2060, and 29-CA-
4307
May 28, 1976
DECISION AND ORDER
By MEMBERS JENKINS, PENELLO, AND WALTHER
On January 30, 1976, Administrative Law Judge
Julius Cohn issued the attached Decision in this pro-
ceeding Thereafter, the Respondent Employer filed
exceptions and a supporting brief, and the General
Counsel filed a brief in support of the Administrative
Law Judge's Decision
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs,
and has decided to affirm the rulings, findings,' and
i Herein called Respondent Employer
2 Herein called Respondent Union
3 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 188 F 2d 362 (CA 3 1951) We have
carefully examined the record and find no basis for reversing his findings
conclusions of the Administrative Law Judge and to
adopt his recommended Order, except as modified
herein
In footnote 21 of the attached Decision, the Ad-
ministrative Law Judge found that the Respondents'
recognition agreement does not contain a union-se-
curity provision, but merely provides for the inclu-
sion of one in any future collective-bargaining agree-
ment thereafter negotiated The Administrative Law
Judge further found that, without regard to the valid-
ity of the parties' recognition agreement, Respondent
Employer violated Section 8(a)(2) of the Act by re-
quiring employees to sign dues-deduction authoriza-
tion cards on behalf of Respondent Union Addition-
ally, the Administrative Law Judge found that by
this conduct Respondent Employer also violated Sec-
tion 8(a)(3) and Respondent Union violated Section
8(b)(2) because it constituted an attempt to enforce
the above-described provision of the recognition
agreement Inasmuch as we agree with the Adminis-
trative Law Judge that the recognition agreement
does not contain a union-security provision and that
the Respondent Employer's conduct was violative of
Section 8(a)(2), we find it unnecessary to pass on his
finding of 8(a)(3) and 8(b)(2) violations Further-
more, we note that such additional violations do not
affect the remedy herein Accordingly, we shall mod-
ify the Administrative Law Judge's conclusions of
law, recommended Order, and notice in this respect
AMENDED CONCLUSIONS OF LAW
Substitute the following for paragraphs 4 and 8 of
the Administrative Law Judge's Conclusions of Law
"4 By requiring employees to sign dues-deduction
authorization cards on behalf of Respondent Union,
the Respondent Employer has violated Section
8(a)(2) of the Act "
"8 By entering into a recognition agreement with
the Respondent Employer at a time when it did not
represent an uncoerced majority of the employees of
that employer, the Respondent Union has violated
Section 8(b)(1)(A) of the Act "
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 Samuel
Liefer and Harry Ostreicher, a Copartnership, d/b/a
River Manor Health Related Facility, Brooklyn,
New York, its partners, agents, successors, and as-
224 NLRB No 38
228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
signs, and Respondent Local 531, International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, Yonkers, New York,
its officers, agents, and representatives, shall take the
action set forth in the said recommended Order, as so
modified
1 Substitute the following for paragraph A,1(b)
"(b) Giving effect to a certain recognition agree-
ment between Respondent River Manor and Re-
spondent Union dated December 9, 1974, or any ex-
tension or modification thereof "
2 Substitute the following for paragraph A,1(c)
"(c) Assisting Respondent Union by soliciting au-
thorization cards on its behalf from its employees, by
granting access to its premises for the purpose of so-
licitation and conducting of meetings by Respondent
Union and refusing to accord similar access to Local
144 and Local 1115, and by requiring its employees
to sign dues deduction authorization cards on behalf
of Respondent Union "
3 Substitute the following for paragraph B,1 (a)
"(a) Giving effect to a certain recognition agree-
ment between Respondent Union and Respondent
River Manor dated December 9, 1974, or any exten-
sion or modification thereof "
4 Substitute the attached notices for the Adminis-
trative Law Judge's notices
IT IS FURTHER ORDERED that the complaint be, and
it hereby is, dismissed insofar as it alleges violations
not found herein
APPENDIX A
threaten them with reprisals in order to require
them to join or support Local 531
WE WILL NOT discharge or otherwise discrimi-
nate against employees because of their mem-
bership in or assistance or support of Local 144,
Hotel, Hospital, Nursing Home and Allied
Health Services Union, affiliated with Service
Employees International Union, AFL-CIO, or
Local 1115, Joint Board, Nursing Home and
Hospital Employees Division, or any other labor
organization
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their rights guaranteed in Section 7
of the Act
WE WILL cease recognizing Local 531 as the
representative for collective bargaining of our
employees
WE WILL cease giving effect to our recognition
agreement with Local 531
WE WILL cease giving effect to any dues-
checkoff card which our employees may have
signed authorizing us to deduct union dues from
their wages and pay them to Local 531
WE WILL provide to both Local 144 and Local
1115 the same equality of access to our nursing
home, its work areas, bulletin boards, and em-
ployees as may have heretofore been provided to
Local 531
WE WILL make whole Brenda Frazier, Albert
Hazell, and Mary Terrell for any loss of pay or
any benefits they may have suffered by reason
of our discrimination against them
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT recognize and bargain with Lo-
cal 531, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers
of America, as the bargaining representative of
our employees, unless it becomes certified by the
Board as a bargaining representative after a
Board-conducted election
WE WILL NOT give effect to a recognition
agreement signed with Local 531 on December
9, 1974
WE WILL NOT force employees to sign checkoff
authorization cards for Local 531
WE WILL NOT assist Local 531 or any other
labor organization by soliciting authorization
cards on its behalf or permitting it to hold meet-
ings and conduct business on our premises
WE WILL NOT promise benefits to employees or
SAMUEL LIEFER AND HARRY OSTREICHER, A
COPARTNERSHIP, d/b/a RIVER MANOR
HEALTH RELATED FACILITY
APPENDIX B
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT give effect to any recognition
agreement executed with River Manor Health
Related Facility on December 9, 1974, or any
extension or modification thereof
WE WILL NOT act or purport to act as the col-
lective-bargaining representative of employees
of River Manor, unless and until we have been
certified by the Board as the collective-bargain-
ing representative after the holding of a Board
election
RIVER MANOR HEALTH RELATED FACILITY 229
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees of River
Manor in the exercise of rights guaranteed to
them by Section 7 of the National Labor Rela-
tions Act
acts in violation of Section 8(a)(1) The Respondents filed
answers denying the commission of unfair labor practices
These consolidated cases were tried at Brooklyn, New
York, on June 16 through 19 and July 14 through 16, 1975
Issues
LOCAL 531, INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN
AND HELPERS OF AMERICA
DECISION
STATEMENT OF THE CASE
JULIUS COHN, Administrative Law Judge On April 14,
1975, the Regional Director for Region 29 issued an order
consolidating cases and a complaint against Samuel Liefer
and Harry Ostreicher, a Copartnership, d/b/a River Man-
or Health Related Facility, herein called Respondent River
Manor, and Local 531, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, herein called Respondent Union or Local 531
The complaint was based upon charges filed on January
14, 1975, and on January 21, 1975, respectively by Local
144, Hotel, Hospital, Nursing Home and Allied Health
Services Union, affiliated with Service Employees Interna-
tional Union, AFL-CIO, herein called Local 144, and
served on Respondents the same dates, and upon charges
filed March 6, 1975, by Local 1115, Joint Board, Nursing
Home and Hospital Employees Division, herein called Lo-
cal 1115, and served the same date on Respondents There-
after, on June 3, 1975, the Regional Director issued anoth-
er complaint against Respondent River Manor based upon
a charge filed by Local 1115 in Case 29-CA-4307 and
served on Respondent River Manor on April 16, 1975 On
June 3, the Regional Director issued an order consolidat-
ing Case 29-CA-4307 for hearing with the aforementioned
cases
The complaints allege that Respondent River Manor un-
lawfully solicited and by threats and promises of benefit
induced employees to sign authorization cards designating
Respondent Union as their representative It is further al-
leged that the Respondents executed and maintained in
effect a recognition agreement which was signed notwith-
standing that Respondent Union did not represent an un-
coerced majority of the employees covered by said agree-
ment By having thereby rendered unlawful assistance to
Respondent Union, it is alleged that Respondent River
Manor violated Section 8(a)(1) and (2) of the Act, by its
execution of the aforesaid agreement and attempting to
enforce a union-security clause, it is alleged that Respon-
dent Union violated Section 8(b)(l)(A) and 8(b)(2) of
the Act In addition the complaints allege that Respondent
River Manor unlawfully discharged certain of its employ-
ees because of their activities on behalf of Local 144 or
Local 1115, and in Case 29-CA-4307 it is further alleged
that Respondent River Manor not only violated Section
8(a)(3) of the Act but also violated Section 8(a)(4) of the
Act because it discharged an employee who gave testimony
under the Act Finally the complaints allege commission of
Whether licensed practical nurses employed by Respon-
dent River Manor are supervisors or agents acting on be-
half of Respondent River Manor
Whether Respondent River Manor unlawfully assisted
Respondent Union by soliciting its employees to sign cards
designating Respondent Union as their collective-bargain-
ing representative
Whether Respondent River Manor promised benefits to
employees should they sign cards designating Respondent
Union as their representative
Whether Respondent River Manor threatened employ-
ees with discharge or other reprisals if they refused to sign
authorization cards for Respondent Union
Whether Respondent River Manor unlawfully permitted
Respondent Union to conduct union business on the prem-
ises during worktime
Whether the Respondents unlawfully executed, main-
tained in effect, and enforced a recognition agreement at a
time when the Respondent Union did not represent an un-
coerced majority of the employees of Respondent River
Manor
Whether Respondent River Manor unlawfully refused to
permit Local 144 and Local 1115 entry to its premises and
accord them the same privileges as Respondent Union
Whether Respondent River Manor unlawfully interro-
gated certain of its employees
Whether Respondent River Manor discharged certain of
its employees in violation of Section 8(a)(3) of the Act
Whether Respondent River Manor discharged an em-
ployee in violation of Section 8(a)(4) of the Act
All parties were given full opportunity to participate, to
introduce relevant evidence, to examine and cross-examine
witnesses, to argue orally, and to file briefs Briefs submit-
ted by the General Counsel and Respondent River Manor
have been carefully considered
Upon the entire record of the case and from my observa-
tion of the witnesses and their demeanor I make the follow-
ing
FINDINGS OF FACT
I THE BUSINESS OF THE COMPANY
Respondent River Manor is a copartnership composed
of Samuel Liefer and Harry Ostreicher, with a principal
place of business in Brooklyn, New York, where it is en-
gaged in operating a health-related facility providing room
and board, nursing supervision, and ancillary care and
other related services for residents Since it commenced
operations on August 26, 1974, Respondent River Manor
has derived gross revenues at an annual rate in excess of
$100,000, and during the same period it purchased and
received at its place of business food products and other
goods and materials valued at an annual rate in excess of
230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
$50,000, of which goods and materials valued at an annual
rate in excess of $50,000 were received from suppliers lo-
cated in the State of New York, each of which suppliers
having received such goods and materials in interstate
commerce directly from States other than the State of New
York The complaint alleges, Respondent River Manor ad-
mits, and I find that Respondent River Manor is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act
II THE LABOR ORGANIZATIONS INVOLVED
Respondent Union, Local 144, and Local 1115 are labor
organizations within the meaning of Section 2(5) of the
Act
III THE ALLEGED UNFAIR LABOR PRACTICES INVOLVED
A The Alleged Violations of Section 8(a)(2) of the Act
1 The supervisory status of the licensed practical nurses
In August 1974 Respondent River Manor commenced
operations of its nursing home, a six-floor facility of which
only two floors were in operation during the period when
the Respondent Union was engaged in organizing the em-
ployees
Elsie Harrington, a registered nurse, is the director of
nurses and is responsible for the entire nursing operation in
River Manor Thus she supervises the licensed practical
nurses (LPN's), aides, and orderlies Harrington is respon-
sible for hiring and firing of employees in her department
and prepares work schedules, floor assignments, rosters,
and assignments of patients requiring special attention to
the aides and orderlies Harrington, of course, is admitted-
ly a supervisor within the meaning of the Act
The complaint alleges that LPN's Mercado, Russell,
Link, and Pierre are supervisors or agents within the mean-
ing of the Act i The record in this area, based upon the
testimony of Harrington, the LPN's, as well as employee
witnesses, reveals the following the LPN's cannot hire,
fire, lay off, or promote employees Nor can they give rais-
es to employees or discipline or warn employees, or effec-
tively recommend any of the above actions In this connec-
tion, the record does show that LPN's did report to
Harrington concerning the work and conduct of aides or
orderlies but it is clear that an LPN could take no action in
that regard The LPN's punch the timeclock and are paid
on a weekly basis It appears that from time to time the
LPN on the afternoon or night shift would occasionally
telephone for a replacement in the event an aide or orderly
reported that he or she could not come or failed to appear
for work However, such calls were made from a call-in list
of so-called per diem people prepared and maintained by
Harrington It was the custom to call the top name on the
list and if that person was not available the LPN would
communicate with Harrington who was always available to
telephone for further instructions It is clear that such occa-
1 At the hearing the General Counsel was permitted to amend the com-
plaint so as to include Pierre as an alleged supervisor or agent
sional action on the part of a LPN does not involve the
exercise of any independent judgment on her part which
would indicate supervisory authority One of the LPN's,
Mercado, worked days at the same time as Harrington her-
self and she had been instructed by Harrington to prepare
a form or schedule assigning certain duties to the aides and
orderlies The purpose of this form was to assign patients in
such a way to the aides and orderlies on each shift so that
the more difficult patients would be rotated among them
The preparation of this schedule by Mercado did not in-
volve any exercise of individual judgment and is not suffi-
cient, absent all other indicia, to constitute Mercado as a
supervisor
The aides and orderlies have their regular routine duties
and will report to the LPN's only in cases of medical emer-
gency In such instances, the LPN will direct the aide as to
what she could do to help the LPN concerning matters
such as taking temperature, checking vital signs, and the
like
The General Counsel argues that Russell, the LPN on
the night shift and Link, an LPN who relieves Russell on
the night shift when Russell is off, are supervisors because
no acknowledged supervisor or member of management is
at the facility during that shift Russell testified that, if
required, she could change the floor on which an orderly
was working and had been so instructed by Harrington
But since the aides and orderlies already had received their
assignments from schedules prepared by Harrington such a
change by Russell, if it occurred, would be rare and then
only in connection with medical requirements In case of
serious medical emergency, the LPN on the night shift is
instructed to call either Harrington or the doctor They are
not permitted, for example, to call an ambulance to send
the patient to the hospital Only the doctor or Harrington
can authorize them to take such action The night shift
LPN has no more authority than the others The fact that
the director of nurses is not present on the night shift does
not in and of itself create supervisory authority in the LPN
on that shift 2 Finally, factors such as the LPN's giving out
paychecks to employees, particularly on the night shift,
and reporting employees to Harrington who have been
late, or even transmitting a warning from Harrington to an
employee concerning lateness, absent the power to make
effective recommendations, are not sufficient to confer su-
pervisory status upon an LPN as these matters are routine
and most importantly, do not involve the exercise of any
independent judgment on the part of the LPN
In sum, the LPN's exercise a function of giving direc-
tions to aides and orderlies in connection with nursing and
medical care and in that respect they can call upon the
aides and orderlies to assist them In these circumstances,
particularly as they are not possessed of any of the usual
indicia of supervisory authority, I find that the LPN's are
not supervisors within the meaning of the Act 3
Z Leisure Hills Health Centers Inc, 203 NLRB 326 (1973), relied upon by
the General Counsel in this connection in inapposite In that case the LPN
on the night shift found by the Board to be a supervisor had been designat-
ed as such by the employer and it was found that she exercised independent
judgment
a Mountain Manor Nursing Home 204 NLRB 425 (1973) Wing Memorial
Hospital Association 217 NLRB 1015 (1975) Eugene Good Samaritan Cen
ter 191 NLRB 35 (1971)
RIVER MANOR HEALTH RELATED FACILITY 231
However, as it does appear that the LPN's did serve as a
conduit between Harrington and the aides and orderlies,
the question as to whether the LPN's are agents of Respon-
dent River Manor will be discussed in connection with the
allegations of unlawful assistance
2 Facts as to solicitation for Respondent Union
Respondent River Manor commenced operations of the
nursing home in August 1974 As previously noted, Elsie
Harrington is the director of nursing services, and Marvin
Ostreicher is the administrator of the facility In October
Ostreicher introduced Harrington to two representatives of
Respondent Union Harrington recalled that one was
named Valentino and does not recollect the name of the
other representative but they were introduced to her by
Ostreicher as representatives of Local 531 During their
conversation Harrington told them that she was not inter-
ested in a union They asked her if there were any LPN's
around and she informed them that Mercado was present
Harrington then went to Mercado and asked if she was
interested in a union and Mercado told her that she was
Harrington stated that she brought Mercado down through
the corridor to a point outside her office and then intro-
duced her to the representatives of Respondent Union
Harrington says she then went into her own office, closed
the door, and does not know where the others went or what
they did
Mercado identified one of the representatives with
whom she spoke on that day as Charles Kranitz, who is
vice president of Respondent Union Mercado also recol-
lected that this meeting occurred on October 23 since that
is the date that she signed her own card for Respondent
Union She further said that the two representatives came
out of Ostreicher's office and then were introduced to her
by Harrington As a result of her conversation with them,
she was given some membership cards and told to have the
people sign them and that they would be back to pick up
cards Mercado states that thereafter she gave out cards to
the nurses aides working on her tour of duty Just before 4
p in she spoke to Allen, the LPN on the afternoon shift,
and gave her cards to be distributed to the aides and
orderlies on that shift In addition Mercado gave Allen
enough cards to leave for LPN Russell on the midnight to
8 a in shift Mercado saw a representative from Respon-
dent Union a week later, Montanez, and gave him some of
the cards which she had obtained
Mercado, a witness called by the General Counsel,
maintained that Harrington merely told her that there were
two men from Local 531 who wanted to talk with her
Harrington did not say what they wanted to talk about nor
did she say anything about Local 531 or benefits, nor did
Harrington tell her, according to Mercado, the reason that
she wanted her to meet the union representatives Harring-
ton merely said she could talk to these people from Local
531 4
4 When asked by the General Counsel whether Harrington said anything
to her prior to the introduction, Mercado stated that there was something in
the statement she had given to the Board which she wanted to change The
record does not reveal what Mercado had in mind
On December 9, 1974, the Respondents entered into a
recognition agreement following a card check conducted
by an arbitrator who certified that Respondent Union had
authorization cards from a majority of the employees in
the unit The recognition agreement provided for the com-
mencement of negotiations after receipt of union demands
by the Employer, and further provided that the basic
agreement should be the Union's usual contract containing
union-shop and checkoff clauses, among other things A
further provision called for arbitration in the event the par-
ties could not agree on the terms of a contract
Other than the circumstances of the introduction of the
Respondent Union's representatives to Mercado as related
above, certain other acts of illegal assistance and coercion
are alleged in connection with the signing of cards by indi-
vidual employees
Vincent Cox, a dishwasher, testified that one day in Oc-
tober he saw Ostreicher speaking to Kranitz and another
union representative whom he identified as being a Spanish
person They were sitting at a table in the staff dining
room Cox did not hear what they were talking about nor
did they talk to him A day or two later the Spanish union
representative saw him in the kitchen and asked to speak to
the kitchen people in the dining room He told the kitchen
people that they would be making more money if they
signed cards and Local 531 obtained a majority The repre-
sentative gave Cox a card which he did not sign at that
time Cox stated that a few days later a man, whom he
could not identify but believes came from the office, asked
if the kitchen staff had signed the cards for Local 531 Cox
said he had not When Cox asked whether he had to sign,
the office man said if he did not sign the card he could not
work there any longer Thereafter, a union representative
came in and Cox signed and dated the card for him
Cox further testified that in January he was told by a
cook that he had to sign a paper before getting his pay-
check Cox went to the office where the bookkeeper
showed him a checkoff card for dues deduction and told
him that if he did not sign this card he would not get his
check Cox refused to sign and the bookkeeper called Os-
treicher who ordered him to give Cox the check Cox did
not know the name of the bookkeeper Cox then signed the
checkoff card
Marietta Spadaro, a nurses aide, testified on behalf of
the General Counsel that she commenced working at Re-
spondent River Manor on January 3, 1975, after the execu-
tion of the recognition agreement On January 16 when she
went to Harrington's office to pick up her check, Harring-
ton told her to sign an application and checkoff authoriza-
tion card for Respondent Union Spadaro signed the card
and a union representative came in and Cox signed and
dated the card for him
Enid Hoshing was hired on December 17 by Harrington
as a nurses aide Hoshing stated that on January 16 when
she went to the office to get her paycheck, Harrington gave
her a card and told her to sign it Hoshing asked what the
card was about and a nurses aide, Robinson, who was pres-
ent, said that it was a card for Local 531 Harrington then
said that if she did not sign the card Hoshing would not get
her check Hoshing signed the card and Harrington gave
232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
her the check I do not credit Hoshing's testimony with
respect to the threat that she would be fired if she did not
sign the card Not only does Harrington deny making any
threat to Hoshing, but the latter never mentioned it in the
course of her statement given to a Board agent 8 days after
the occurrence Moreover, Robinson did not corroborate
this event even though she was presents
There was some conflict whether Hoshing had signed
one or two cards in Harrington's office on January 16 as
only a sick and welfare card was received in the record
Although in her statement Hoshmg only referred to signing
one card, she stoutly maintained at the hearing that she did
indeed sign two different cards and identified an applica-
tion and checkoff authorization card of the Respondent
Union as being one of the cards she signed I credit Hosh-
ing in this matter The fact that an authorization card was
not produced by Respondents pursuant to subpena does
not preclude a finding that Hoshing actually signed a card
Moreover, Harrington freely admitted that during the
months of January and February she gave out such dual
purpose cards to many employees Nor is it likely that a
sick and welfare fund card would be requested of an em-
ployee who had not signed an application for membership
and checkoff card
Mary Townsend, an aide, was hired by Harrington on
November 6 and signed an authorization card for Respon-
dent Union on November 20 Townsend stated that she
was given the card by Mercado who told her that there was
a union which she would like her to join, that it was Local
531, a good union and that Harrington wanted everyone to
hurry up and join to get more benefits Townsend replied
she wanted to think about it, but Mercado told her if she
wanted to continue to work here she had better sign the
card Townsend then signed Mercado also told her that
she had herself signed a card and Harrington wanted all
employees to sign
Albert Hazell, an orderly, testified that on November 28
he signed an authorization card for Respondent Union
which had been given him by Link, the LPN who filled in
on the night shift during the absence of the regular LPN,
Russell He stated that Link told him that Harrington
would like him to fill out the card without any other em-
ployees knowing about it and return it to Link the next
day, which he did Hazell also recalled signing a previous
card for Respondent Union in October which had been
given to him by other employees who told him that Har-
rington had said he had to sign a card in order to keep his
job
Brenda Frazier, an aide, was hired on October 30 and
worked the shift from 12 midnight to 8 a m She signed an
authorization card dated November 28 for the Respondent
Union At the time, Frazier was in the first floor staffroom
with Russell, the LPN, Dennis Williams, an orderly, and
Allen, the LPN from the previous shift Russell came over
5 Alma Robinson an aide , testified at the hearing that she signed a sick
and welfare fund card on the same date as Hoshing She did not mention
this incident Of course, in her testimony Hoshing referred to a Miss Rob
inson' and it is conceivable that she did not mean the Alma Robinson who
appeared as a witness In any event if another Robinson was employed at
that time, such person did not testify at the hearing
to Frazier and gave her the card and asked her to sign it
Frazier read the card and asked who was a truckdriver,
that this was a nursing home Russell replied that Harring-
ton had said that those who do not sign the card would be
fired Frazier then signed the Local 531 card At about the
same time , Williams received a card for Respondent Union
from Russell,6 who stated that Harrington had given her
the card for him to sign and that she wanted it back in the
morning Williams did not sign the card at once and later
Russell asked for it, saying that she wanted it quickly be-
cause Harrington said that anyone who does not sign the
card would be fired Williams, who had put the card in his
locker, obtained it at the end of the shift, signed it, and
returned it to Russell Williams also recalls Frazier and
Hazell being present at the time
Russell, testifying on behalf of Respondents, stated that
when she came on duty that night she found the authoriza-
tion cards for Respondent Union on her desk Allen, the
LPN from the prior shift, told her "there are some cards on
the desk for the Union, give them to the ones that come in,
have them sign and leave it " Allen did not say where she
got the cards or to whom Russell was to return them, she
merely said to leave them on the desk Russell denied that
Allen told her the cards had been left by Harrington Rus-
sell testified that she heard the employees talking about not
wanting a Teamsters union, but she said they still signed
the cards although they did not care for that Union How-
ever, she denied that Harrington ever asked her to distrib-
ute these cards, stating that she does not see Harrington
when she comes in to work at 1 I p in She further denied
telling these employees that if they did not sign they would
be fired, or that Harrington had said that they must sign
the cards Finally, Russell said that at the end of her shift
she left the cards on her desk and she believes that the
LPN on the morning shift picked them up
Alma Robinson commenced working as an aide at 12
midnight on December 3 and she testified that, several
days after she began working, Russell gave her an authori-
zation card for Local 531 and told her to sign it Robinson
did not do so immediately, and the next day Russell asked
her if she had signed the card and she replied she had not
Russell then obtained another card and told her to sign it
now because Harrington wanted it Robinson then signed
the card and gave it back to Russell 7
There were two instances of employees alleging that they
had signed cards for the Respondent Union which had
been given to them by Harrington herself Neither of these
cards had been produced by the Respondent Union pur-
suant to the subpena Esmond G Phillip, an orderly, began
working in September 1974, right after Labor Day He stat-
ed that about 3 weeks after the commencement of his em-
ployment Harrington gave him a card for the Respondent
Union and told him that everyone had to sign it Phillip
6 Although Williams card is dated November 27 while Frazier s was dat-
ed November 28 it appears from the testimony of Frazier Williams and
Russell that the signing of cards by the employees on the midnight to 8 a in
shift occurred about the same time
' A Local 531 authorization card signed by Robinson was not produced
However Robinson was able to identify a blank card as the same as the one
she had signed On January 16 she signed a sick and welfare card of Re-
spondent Union which was received in evidence I credit Robinson Russell
did not deny the incident
RIVER MANOR HEALTH RELATED FACILITY 233
immediately signed it and gave it back to her At this time
Phillip was working 4 p in to 12 midnight and the incident
allegedly occurred at about 4 30 p in, a time when Har-
rington was still at the facility He stated that Harrington
told him that all the workers had to sign the card Phillip
signed and dated the card and then walked over and re-
turned it to Harrington who was talking to Allen, an LPN,
at the time As to the card he signed, Phillip stated it was
pink with blue writing and then changed his testimony to
say it was a white card with black lettering Harrington
denied giving any union authorization card to Phillip and
asking him to sign it
It is also alleged that Harrington gave Mary Terrell, a
nurses aide, a card for the Respondent Union Terrell be-
gan working on December 4 Although she insisted that
she received an authorization card for Respondent Union
from Harrington, she is not certain of the date At the
outset she stated that about a week after she was hired she
was approached by Mitchell, another aide, who asked her
whether she had received a union card for Local 531 and
Terrell replied that she had not Allegedly Mitchell told her
that she was passing out cards only to people whom Har-
rington told her to approach Terrell said about 1 week
after talking to Mitchell she had a conversation with Har-
rington about a card Presumably that would have oc-
curred approximately December 18 Thereafter Terrell tes-
tified that while she could not be sure of the date when she
signed the card for Respondent Union she could place it in
the following sequence of events She said that on a Satur-
day in December she obtained an authorization card from
Local 144, on the following Monday she talked with Har-
rington about the card from Respondent Union, and on
the next Wednesday she had a discussion in the elevator of
the building with Mitchell concerning a meeting called by
Respondent Union If this chronology is correct, it appears
from the records of the Respondent River Manor that the
only occasion in the month of December in which Terrell
worked on a Saturday, Monday, and Wednesday was De-
cember 14, 16, and 18 It would thus appear that the con-
versation with Harrington occurred on December 16 Ac-
cording to Terrell, Harrington called her while she was
working on the first floor and told her that she had a card
for her to sign She said she did not have it with her but
would bring it back later Harrington returned 20 minutes
later and told Terrell she wanted her to sign the card Ter-
rell stated she took the card from Harrington, looked at it,
and asked whether she had to sign it and Harrington re-
plied she did Terrell took the card into an empty room,
read it, signed it, and took it to Harrington's office where
she placed in on the desk Harrington did not say anything
to her
Terrell further testified to a conversation she had with
LPN Pierre in mid-December 8 Pierre allegedly told Terrell
that she had heard that Local 531 was coming in and that
they had appointed Mitchell to represent the aides and
Mercado to represent the LPN's Terrell asked who ap-
6 As noted the General Counsel was permitted to amend the complaint
so as to allege that Pierre was a supervisor and/or agent However, General
Counsel at the time conceded that he does not allege that Pierre committed
any unfair labor practices
pointed them and Pierre told her to use her head, that
nobody but Harrington and Ostreicher appointed them
Allrich Normil, a cook, testified that on a payday in
November he went to pick up his paycheck from the book-
keeper (Abraham Zehnwirth), who told him he would have
to sign a membership card of Respondent Union in order
to obtain his check Normil stated he then signed the card
and received his check This is another alleged card not
produced by Respondents in accordance with the subpena
Zehnwirth testified that he had never given out to employ-
ees or requested that employees sign authorization cards in
November or December on behalf of the Respondent
Union He did state, however, that in January he distribut-
ed applications and checkoff cards of Respondent Union
as well as sick and welfare cards to be signed by the em-
ployees when they came in for their checks, telling them
they had to sign the card to get their checks In fact he said
he did this with all of the employees except those whom he
did not see such as the night shift As to these, he gave the
checkoffs and sick and welfare cards to the LPN's with
instructions that they have the employees sign them so that
they could get a check Zehnwirth denied giving out any
other cards to employees and stated that he did not recall
ever seeing an application for membership card of the Re-
spondent Union
3 Analysis concerning card solicitation
The various allegations of illegal assistance both ante-
date and postdate the execution of the recognition agree-
ment by the Respondents on December 9 A determination
of whether the recognition agreement was valid, that is,
whether it was executed at a time when the Respondent
Union represented an uncoerced majority of the employees
of Respondent River Manor, is of course dependent on
events preceding the recognition agreement, which will be
first discussed
Respondents' witnesses verify that on October 23, 1974,
the administrator of Respondent River Manor, Marvin
Ostreicher, introduced Director of Nurses Elsie Harrington
to Charles Kranitz, vice-president of Respondent Union,
and another representative of that organization In turn,
Harrington introduced LPN Mercado to the union people
After a short conversation the Local 531 representatives
gave Mercado authorization cards to distribute among the
employees and to obtain their signatures As a result there
ensued the events involved in the solicitation of authoriza-
tion cards described above which are alleged to constitute
unlawful assistance
The Board has held that a certain amount of employer
cooperation with the efforts of a union to organize is insuf-
ficient to constitute unlawful assistance Thus, the Board
found no violation in a recent case relied upon by Respon-
dents, where the employer not only introduced the union
and its representatives to its premises but also provided it
with an opportunity to address a meeting of its employees
during worktime, and the employer directed certain em-
ployees to go into a room so that a union representative
9Jolog Sportswear, Inc 128 NLRB 886 (1960)
234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
could speak to them 10 In the instant case it is urged that
the assistance rendered is somewhat less than occurred in
Longchamps since we have merely the introduction of the
union representatives by the employer and not a meeting
But the Longchamps case rests on the fact that the
employer's conduct was limited to the introduction of the
Union and the on-premises meeting It was stressed that
there was no management involvement in the solicitation
of authorization cards, employees were not threatened with
reprisals if they did not join nor promised benefits if they
did join the union, nor were management representatives
present when the cards were signed In short, Respondents'
reliance on such cases is misplaced as it presupposes an
atmosphere free of coercion of employees by management
or its representatives It is clear where authorization cards
are solicited by supervisors or employees who have been
made agents by the employer such conduct would consti-
tute unlawful assistance to a union 11 Therefore the crux of
the allegations with respect to unlawful assistance lies with
the conduct of Harrington and whether the actions of the
LPN's can be attributed to Respondent River Manor
With regard to Harrington, she is alleged to have ob-
tained authorization cards from two employees, an activity
which she categorically denies The first is Esmond Phillip,
a witness whose testimony can be at best described as un-
certain Phillip stated that he began to work early in Sep-
tember, right after Labor Day Since Labor Day 1974 was
September 2 it can be assumed that he commenced work-
ing during that week (The record does not indicate the
exact date) He then states he signed a card for Harrington
about 3 weeks after he began to work This would put the
occurrence somewhere around the end of September or
even possibly early in October The introduction of the
union representatives to Harrington and to Mercado oc-
curred on October 23, and there has been no testimony
that any card was signed prior to that date At the outset
Phillip testified that he signed a card which was pink and
then later changed his testimony to say that the card was
white The pink card to which he referred is the copy of the
dual purpose application for membership and dues deduc-
tion authorization card apparently used by Respondent
Union after the recognition and no card of this type in
evidence bears any date prior to January 1975 Therefore,
while it may be possible that Phillip signed some paper,
card, or document for Harrington, I cannot conclude from
his testimony that this was an application for membership
in Respondent Union
The other employee alleged to have been given a card
for Respondent Union by Harrington was Mary Terrell,
who had a dim recollection concerning the dates As
Terrell's employment began December 4 and the recogni-
tion agreement was signed December 9, there is slight mar-
gin for error It has been noted above that Terrell can only
pinpoint the date she signed this card as a result of a se-
quence of three events occurring on a Saturday, Monday,
and Wednesday The records of the nursing home reveal
that the only time in December in which she worked such
a sequence of days was December 14, 16, and 18 As this
10 Longchamps Inc, and its wholly owned subsidiary S and B Restaurant of
Huntington, d/b/a Steak and Brew of Huntington 205 NLRB 1025 (1973)
11 See Broyhill Company 210 NLRB 288, 294 (1974)
was her final and positive recollection, the solicitation by
Harrington on behalf of the Respondent Union could only
have happened on December 16 Since that is a week after
the recognition agreement was signed, Harrington's alleged
conduct, even if it had occurred, could have no bearing on
the question of whether the Respondent Union represented
an uncoerced majority of the employees on December 9
In conclusion, with respect to the conduct of Harrington,
I find the evidence insufficient to establish that Harrington
solicited an authorization card for Respondent Union from
Phillip or, indeed, if he ever signed one, nor does the evi-
dence show that Harrington solicited an authorization
from Terrell prior to the date of recognition of the Union
In trying to establish a course of conduct of illegal assis-
tance, the General Counsel places principal reliance on the
activities of the LPN's, Mercado, Russell, and Link, in soli-
citing authorization cards for Respondent Union from em-
ployees Although it is clear that the LPN's solicited many
cards, the specific prerecognition conduct alleged is with
respect to cards obtained by Mercado from Townsend, by
Link from Hazell, and by Russell from Frazier, Robinson,
and Williams The Supreme Court has stated that the con-
clusion that employees' choice was restrained by the
Employer's interference must of necessity be based on the
existence of conditions or circumstances which the Em-
ployer created or for which he was fairly responsible and as
a result of which it may be reasonably inferred that the
employees did not have that free and unfettered freedom
of choice which the Act contemplates 12 Thus, if the activi-
ties of Mercado, Link, and Russell occurred as described
above by the employees, and the Respondent River Manor
is responsible for these actions of the LPN's, then unques-
tionably it would have coerced and interfered with the em-
ployees' freedom of choice and thereby rendered illegal as-
sistance to the Respondent Union I have already found
that the LPN's involved in these incidents are not supervi-
sors within the meaning of the Act The question remains
as to whether they are agents or representatives so as to
bind their Employer for their actions
At the outset I credit the versions of the events as related
by employees Townsend, Hazell, Frazier, Williams, and
Robinson and discredit the testimony of Mercado and
Russell Townsend testified that Mercado told her to join
Local 531, a good union, that Harrington wanted everyone
to join up to get more benefits When Townsend replied
that she wanted to think about it, Mercado said, "if you
want to continue to work I suggest you sign the card"
Townsend testified in a forthright manner and I believe
her Mercado testified at the hearing but did not deny
Townsend's account nor did she allude to it in any man-
ner13
Despite Russell's denial that she used Harrington's name
or said that employees would be fired if they did not sign
the cards, I do not credit her testimony as to these matters
Russell does not deny but rather admits that the employees
on the night shift, including Frazier, Williams, Hazell, and
12 N L R B v Link Belt Company et al 311 U S 584, 588 (1941)
13 Mercado was called as a witness on behalf of the General Counsel and
it was clear that she was hostile and her demeanor reflected a lack of can-
dor In addition as will be hereinafter discussed, her testimony in certain
areas was implausible I do not credit her
RIVER MANOR HEALTH RELATED FACILITY 235
Robinson, discussed among themselves the fact that Re-
spondent Union was a Teamsters union and that they were
employed in a nursing home In fact she testified that "they
didn't care for the Union but they still signed the card "
Since the employees involved did not appear to want to
join the Respondent Union, it is logical to assume that they
signed the cards despite their feeling as a result of the im-
petus received from the remarks of Russell Nor is it con-
ceivable that these employees just voluntarily picked up
and signed authorization cards which were lying on
Russell's desk
Similarly I credit the testimony of Hazell with respect to
his solicitation by Link, the LPN who worked nights in the
absence of Russell, as his testimony in this regard is uncon-
tradicted on the record 14
On the basis of the above findings, it is clear that many
authorization cards were obtained by the LPN's as a result
of threats of discharge or promises of benefits The remain-
ing question is the responsibility of the Respondents for
their activities I find in all the circumstances that the man-
agement herein must bear that burden It was the Respon-
dent River Manor that brought representatives of Respon-
dent Union into its premises and introduced them to LPN
Mercado She was designated for this purpose This initiat-
ed the campaign, the kickoff came from the Employer, not
the employees Thereafter, union representatives were seen
by employees talking to the administrator and they were
permitted to go through the premises soliciting cards on
company time 15
The brunt of the solicitation was delgated to the LPN's,
starting with Mercado I do not credit the assertions of
Harrington and Mercado that the latter was uninstructed
How then could Mercado have free rein in soliciting cards
from employees on the day shift, then instructing Allen to
do the same on the afternoon shift, and also leave cards for
Russell on the last shift? Russell denied being told by Allen
what to do with these cards, but she seemed to know The
name of Harrington was not used in vain by the LPN's,
and the assertion of Russell that the employees signed
cards voluntarily after indicating their dislike of Local 531
is implausible
But, absent specific evidence that the LPN's were in-
structed or authorized to engage in the above-described
conduct, Respondent River Manor is responsible because
they have been placed by management in a strategic posi-
tion where employees could reasonably believe they speak
on its behalf 16 A nursing home or health-related facility, as
it is called, is quite different from the normal employing
entity because of the medical services it renders It is un-
contradicted that LPN's are in "charge" in that area How-
ever, the Board will in all cases apply the statutory criteria
in determining supervisory status so that in some cases
14 Link did not appear or testify at the hearing Finally I do not credit
Normil that Zehnwirth refused him his paycheck unless he signed a Local
531 card in November Zehnwirth credibly denied that he even distributed
authorization cards while freely admitted giving out checkoff cards in Janu-
ary
15 Cox testified without contradiction that Ostreicher spoke to Krani'z in
the dining room Union representatives came into the kitchen
16 See Mississippi Products Inc, 103 NLRB 1388 1393 (1953) enfd 213
F 2d 670 (C A 5 1954)
even a registered nurse will be found not to possess such
authority 17 In any case, by virtue of the medical responsi-
bilities, the LPN is in a position of directing the aides and
orderlies to that extent When this is coupled with certain
other duties, albeit routine, affecting the working condi-
tions of these employees, it may well be concluded in some
case that they may be regarded as an arm of management
Some of these duties in this case include handing out
checks, Russell, upon express instruction from Harrington,
warning Frazier and others about lateness, Harrington re-
ceiving reports from the LPN's as to their performance and
work habits, changing the work location of an orderly
when required, calling for a replacement as needed, and
transmitting information from and to Harrington These
factors lead me to conclude that the LPN's appeared to
have close ties with management and when they said Har-
rington wanted the employees to sign cards or else (or
words to that effect), the employees could reasonably be-
lieve that the LPN's were delivering her message I find,
therefore, the Respondent River Manor is responsible for
the actions and conduct of the LPN's as described above 18
Accordingly, I find that by assisting Respondent Union
in organizing its employees Respondent River Manor has
given assistance and support to Respondent Union in vio-
lation of Section 8(a)(2) of the Act By accepting such as-
sistance and support, and the exclusive recognition, Re-
spondent Union has violated Section 8(b)(l)A) of the
Act 19 I further conclude that the authorization cards sub-
mitted by Respondents to the arbitrator who made the
card check were tainted by the conduct and pressures
exerted upon the employees by the representatives of the
Respondents and the other forms of assistance rendered to
Local 531 By granting recognition to a union which did
not represent an uncoerced majority of its employees, Re-
spondent River Manor violated Section 8(a)(2) and by its
acceptance Respondent Union violated Section 8(b)(1)(A)
of the Act 20
The General Counsel has also alleged acts of unlawful
assistance on the part of Respondent River Manor which
occurred after the execution of the recognition agreement,
principally in January 1975 These are with respect to dis-
tribution of the so-called dual purpose card, the applica-
tion and checkoff authorization blank This was also re-
ferred to by the witnesses as the pink card because a pink
carbon copy was attached for the employer's use for check-
off purpose There is no conflict in the evidence concerning
this activity Harrington freely admitted giving these cards
to the aides and also to LPN's and, in addition, left some
of them in an envelope for the LPN on the night shift to
distribute to employees As described above, Abraham
Wing Memorial Hospital Association, supra
s Broyhill Company, supra N L R B v Dayton Motels Inc 474 F 2d 328
330 (CA 6 1973)
19 International Ladies Garment Woikers Union [Bernhard Altmann] v
NLRB 366 U S 731 (1961)
20 Bernhard-Altmann supra In this connection Respondent's contention
that the evidence did not show that more than a few employees were
coerced is without merit Mercado and Russell admitted soliciting all the
employees on their shifts and other uncontradicted testimony revealed that
Local 531 representatives were all over the premises including the kitchen
The record reveals a pattern of pervasive pressure on all the employees and
assistance to Respondent Union Howard Creations Inc, 212 NLRB 179
(1974)
236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Zehnwirth, the bookkeeper, also admitted that he gave out
the application and checkoff authorization blanks together
with paychecks to the employees in January, and told them
that they had to sign the checkoff authorization cards be-
fore they received their checks In addition, Zehnwirth stat-
ed that, as to those employees who had not picked up their
checks in his office, he sent checkoff cards to the nurses
with instructions that they have the employees sign them in
order to get their checks
All of this occurred in January after the recognition
agreement was signed, and no collective-bargaining agree-
ment has ever been signed As the recognition agreement
has been found invalid, this subsequent conduct in January
of forcing employees to sign checkoff authorization is
clearly unlawful However, even if we assume that the rec-
ognition agreement was validly executed, the conduct of
Zehnwirth and Harrington in January was still unlawful
While employees may voluntarily sign application for
membership and dues deduction authorization cards prior
to the execution of a collective-bargaining agreement, the
above-described conduct can scarcely be considered volun-
tary in view of the admission that employees were told that
the cards had to be signed before they received their pay-
checks I find, therefore, that whether or not the recogni-
tion agreement was validly executed the Respondent River
Manor violated Section 8(a)(1) and (2) by coercing em-
ployees and rendering unlawful assistance to the Respon-
dent Union which also violated Section 8(b)(1)(A) and
8(b)(2) of the Act by attempting to enforce alleged union-
security provisions and being the recipient of the
employer's assistance 21 In view of my findings on this mat-
ter of the general distribution of dues-checkoff cards which
occurred in January, it is not necessary to further discuss
the individual allegations concerning distribution of the
same cards at the same time by Harrington, Russell, and
Zehnwirth to specific employees, since the remedy in any
event would be the same
4 Other alleged acts of assistance
Frank McKinney, a business representative of Local
144, visited the Respondent River Manor early in Septem-
ber and met there with Harry Ostreicher, one of the princi-
pals, and Harrington He asked them about the possibility
of hiring some of his union members who had lost their
jobs because of the closing of another nursing home in
which Ostreicher had an interest In late October or early
November McKinney returned with a Mr Morgan, direc-
tor of the nursing division for Local 144, and another busi-
ness agent Morgan told Ostreicher that Local 144 was in-
21 Despite the allegation in the consolidated complaint that the recogni-
tion agreement contained a provision requiring employees to become and
remain members in good standing of Respondent Union as a condition of
employment, I do not so construe that agreement The recognition agree-
ment provided as follows `The collective bargaining agreement shall be 'he
Union's usual contract for, and shall, provide, among other things for a
union shop checkoff dues and initiations, classifications holidays vaca-
tions, general increases , welfare payments , etc I read this provision as
merely providing that any collective-bargaining agreement reached between
the parties shall contain provisions on the subjects listed Since no agree-
terested and would be organizing at Respondent River
Manor McKinney stated that his union passed out leaflets
on December 28 at Respondent River Manor and on that
occasion he attempted to enter the nursing home He was
refused admission by a guard who told him that he had
instructions not to let in anyone from Local 144 After
further organizing activity, McKinney and Albert Hazell
passed out leaflets again in late January McKinney tried
to enter the facility but was again stopped by a guard who
said he had instructions not to let him in McKinney fur-
ther stated that he returned in February, passed out cards
and leaflets outside the Respondent River Manor, and on
this occasion he observed representatives of Respondent
Union coming out of the building Once more the guard
refused to let McKinney in Finally, on May 1 McKinney
went to the premises with two other business agents and
observed a representative of Respondent Union going in
with material McKinney followed and told the guard he
was there to attend a union meeting, and the guard permit-
ted him to enter McKinney then told the receptionist he
wished to see Ostreicher Instead, Laufer, the assistant ad-
ministrator, came out and warned McKinney that he was
calling the police When the police actually came, McKin-
ney left with his colleagues
William Morales, business representative of Local 1115,
had been to the Respondent River Manor on several occa-
sions in October and November and attempted to distrib-
ute authorization cards outside the premises In fact he had
been let into the kitchen by Allrich Normil and had given
out cards to some of the employees there Thereafter, on
December 12, he went through the front door and asked to
speak to the administrator Marvin Ostreicher appeared
and asked him his business and Morales said he wanted the
same opportunity given other unions to speak to the em-
ployees Ostreicher told him he was not permitted on the
premises and if he did not leave he would call the police
In addition, Respondent Union's vice president, Kranitz,
testified that on November 20 he held a meeting of the
employees in the premises of Respondent River Manor
It has already been established that representatives of
the Respondent Union were not only introduced to the
premises and the employees but were given unlimited ac-
cess to employees during working hours and in working
areas by Respondent River Manor This occurred before
and after the recognition agreement of December 9, which
has been found to be invalid During this time, the Respon-
dent River Manor denied similar privileges to representa-
tives of both Local 144 and Local 1115 although those la-
bor organizations requested such access I find that by this
conduct Respondent River Manor rendered unlawful aid,
assistance , and support to the Respondent Union and
thereby violated Section 8(a)(1) and (2) of the Act 22
ment was ever reached, I find no union-security clause or checkoff provision
would have been in effect even if the recognition agreement was valid
22 Spartans Industries Inc 173 NLRB 1219 (1968) Russell Coal and Clay
Co, 165 NLRB 978 (1967) While Local 144 and Local 1115 engaged in
some activity prior to the recognition, it is not clear whether this was exten-
sive or even serious in any case neither the General Counsel nor either of
these unions allege or contend that the recognition of Local 531 was in
contravention of the Board's doctrine in Midwest Piping and Supply Co, 63
NLRB 1060 (1945) Indeed, they stipulated to the contrary
RIVER MANOR HEALTH RELATED FACILITY 237
B The Alleged Discriminatory Discharges
I Brenda Frazier
As previously indicated Frazier was hired on October 30,
1974, as an aide to work on the midnight to 8 a in shift
She signed a card for the Respondent Union on November
28 She stated that from that point on she and the other
employees on the night shift talked about the Union almost
every night since they believed that they needed a union
and did not know what to do One night early in January
she, Albert Hazell , and Dennis Williams were having a dis-
cussion about the Union in the staff room in the presence
of Russell, the LPN They particularly discussed the fact
that they hadn't heard anything from Local 531 since sign-
ing the cards She said that she would call the Labor Board
in order to get some information This conversation was
corroborated by Dennis Williams and Albert Hazell The
following day Frazier called the State Labor Relations
Board and informed the agent that she and other employ-
ees were forced to sign cards for the Respondent Union
and that they now wanted to get another union to repre-
sent them Frazier said she was told that the employees
could not be penalized for attempting to get another union
She communicated this information to Hazell who later
called her on January 9 and told Frazier that he had also
gone down to the State Labor Board and was given the
same information Hazell said that he also had called Local
144 and made an appointment to meet Frank McKinney,
the business representative, that night, January 9, at the
Respondent River Manor Frazier was not scheduled to
work that night, but she met Hazell and McKinney in front
of the nursing home shortly before midnight Hazell re-
ceived some authorization cards from McKinney and Fra-
zier signed one and then left while Hazell went in to work
During their meeting they discussed briefly Local 144, sala-
ries and benefits, and the like McKinney and Hazell both
verify this conversation and meeting
On the morning of January 10, Frazier received a tele-
phone call from Harrington who told her that she was
making up her check and was going to have to let her go
because she had heard that Frazier was talking to other
employees about Local 144 Harrington said that next
week another union would be in the nursing home Frazier
admitted being late frequently but stated that Harrington
did not mention it when she called to discharge her She
also stated that Harrington never warned her although
Russell , the LPN, spoke to her about getting to work on
time
Harrington, the director of nursing, testified that she dis-
charged Frazier on the morning of January 9 and not on
January 10 as stated by Frazier Harrington said that she
had examined the sign-in book for January 8 the last night
on which Frazier had worked and noticed that Frazier had
again been late and therefore decided to discharge her in
view of the fact that she had been late so many times and
that her habit of lateness had not improved Harrington
said she called Frazier on January 9 and told her she had
been late so much that she decided to discharge her, and
Frazier said all right Harrington said there was no men-
tion of a union in the conversation Harrington admits she
never warned Frazier personally about her excessive record
of latenesses , but she had asked Russell to speak to her and
warn her about this habit Harrington also said that she
had spoken personally to several employees about their
lateness but could recall that only one employee, whose
name she did not remember, had been discharged for late-
ness In addition Harrington stated that she had a great
deal of trouble with people about lateness, particularly on
the night shift, and that it was very difficult to get people to
come in on time
Respondent River Manor contends that it had no knowl-
edge of Frazier's activity, that it discharged her for habitu-
al lateness , and that the discharge occurred on January 9
and not on January 10 as contended by the General Coun-
sel It argues that since the discharge occurred on the
morning of January 9 this would be before Frazier's activi-
ty of meeting the union representative, McKinney, and
Hazell, on the night of January 9 With regard to Frazier's
activity, this was open as was the case with a number of the
employees on the night shift From the credited testimony
of Frazier, Hazell, Williams, and Robinson, it is apparent
that they discussed the situation concerning the advent of
Respondent Union and their own preference for Local 144
on several occasions at least in early January if not clearly
before These conversations occurred in the staff room in
the presence of Russell, the LPN who it has been estab-
lished frequently served as a conduit for information to
Harrington and management Russell herself testified that
Frazier and the others were not happy with Local 531
Moreover, I do not accept Harrington's statement that she
discharged Frazier on the morning of January 9 rather
than January 10 23 I do not credit Harrington as her de-
meanor reflected an attitude of being overly guarded and
too studiously careful in her testimony Moreover, I find it
inconceivable that Frazier, who, as did Hazell, had already
learned something concerning her rights as a result of her
visit to the State Labor Board, had not mentioned her dis-
charge to McKinney and Hazell when they all met on the
evening of January 9 Hazell said he was unaware that she
had been discharged on January 9 McKinney, a very cred-
ible witness, did not include anything concerning the dis-
charge of Frazier in his account of what they discussed and
what occurred during this brief meeting that night Dennis
Williams, a very active employee on behalf of Local 144
who worked on the night shift and who signed a card on
January 10, stated that he had not known at the time that
Frazier had been fired for lateness
Nor has Respondent River Manor sustained its defense
that it discharged Frazier for excessive lateness It is mani-
23 Respondent River Manor sought to bolster Harrington's contention
through the testimony of Alma Robinson whose authorization card for Lo-
cal 144 is dated January 9 and who testified at one point that she believed
she signed her card after Frazier was discharged There was a great deal of
confusion during the hearing with respect to the exactitude of dates particu-
larly as affecting the employees on this midnight shift Part of this stems
from the fact that the aides sign-in book would be dated, for example
January 9 and the employees who signed that page and worked the mid-
night shift would be actually working from midnight to 8 a in on January
10 Because of this a certain amount of confusion is built into the system so
that as I view it it is entirely possible that Robinson s card dated January
9 and the card of Dennis Williams dated January 10 could have been both
signed during the same workday or just before or after
238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fest from the records that a great number of employees
were late an exceedingly large number of times While con-
cededly Frazier may have been late more times than
others, some of the other people with long records of late-
nesses were not employed the same length of time as Frazi-
er In any event, only one employee was ever discharged
for lateness, according to Harrington, and no evidence was
submitted either as to the name of that employee or the
particular circumstances It is apparent that lateness was a
problem and a fact of business life with which the Respon-
dent River Manor was living Harrington herself testified
that almost every one on the night shift had records of
latenesses, and, moreover, it was difficult for her to attract
people to work on that late shift at the location of Respon-
dent River Manor I also note that despite Frazier's record
of lateness Harrington did not see fit to discuss the prob-
lem with her personally but rather delegated it to LPN
Russell
In conclusion I find that Respondent River Manor dis-
charged Brenda Frazier because of her activities on behalf
of Local 144, particularly those in the early part of Janu-
ary, including the night before her termination, rather than
because of her poor record as to punctuality By such con-
duct the Respondent River Manor violated Section 8(a)(1)
and (3) of the Act
2 Albert Hazell
Hazell was employed in September 1974 as an orderly
on the midnight to 8 a in shift Because he was attending
school, Harrington arranged to permit him to work a split
shift in which his offdays would be Mondays and Wednes-
days each week As previously noted Hazell was present at
a conversation in the second floor office among Frazier,
Dennis Williams, Alma Robinson, and himself, in the pres-
ence of Russell, the LPN All of them talked about having
signed cards for Respondent Union and not having heard
anything about it It was suggested by Williams, who had
been a member of Local 144 at one time and which all
thought was a good union, that they attempt to bring in
that union It was decided that Brenda Frazier would call
the State Labor Board and find out the necessary steps to
do this A couple of days later Frazier told Hazell that the
men at the Labor Board said that they should get a majori-
ty of the employees signed up and then take it to the union
who would then approach management Hazell stated that
he himself called the State Labor Board, verified the infor-
mation Frazier had given him, and, on the same day, went
to Manhattan and visited the Board where he was told the
same thing Hazell said he was also informed that if man-
agement fired any of the employees for this activity he
should come back and file a charge Hazell then called
McKinney, the business representative of Local 144, on
January 9 and arranged to meet that night at 11 30 p in in
front of the nursing home He met there with McKinney
and Frazier and, after a brief conversation, Hazell took
authorization cards from McKinney and then went inside
the facility Between the nights of January 9 and 13,
Hazell gave out authorization cards to many of the em-
ployees and in return obtained signed cards from them
In addition he gave authorization cards to Spadaro who
turned them over to Mary Terrell to solicit on her own
shift During this period of time, he also approached LPN
Russell and asked her if she would like to sign up with
Local 144, and Russell said she would not sign because she
did not intend to be working there long Russell in her
testimony acknowledged receiving a Local 144 card from
Hazell Hazell estimated that he obtained at least 15 cards
for Local 144 during this time
On January 13 at approximately 8 am, just prior to his
leaving, Harrington called Hazell to her office and told
him that she understood that he was handing out cards for
Local 144 and that because of this and his work she had to
let him go She did not tell him what was wrong with his
work, but she did say that his job had been a temporary
one Hazell asked her whether she knew it was illegal for
management to bring in a union and Harrington replied
that she did not know anything about a union Hazell
asked how it was that Harrington told Link to give him a
union card and she did not respond Hazell also asked
Harrington who was representing the employees in the
Union and Harrington replied that Mercado, the oldest
employee, was representing the employees in the Union
Hazell said that he left in the middle of the conversation
while Harrington was talking about Mercado
Harrington testified she had told Hazell that he was
being hired temporarily until she could get a staff because
of his split days In January the problems caused by his
split shift were getting too difficult and she decided to dis-
charge him When she saw him in the dining room on Jan-
uary 13, she asked him to come to her office She started to
talk to him but was unable because he interrupted and said
that he was only being called in because of Local 144
Harrington told him she did not know anything about Lo-
cal 144 and he responded that Russell had informed her
She said Hazell began yelling, got up, and, as he left, she
told him he had only been hired temporarily She states
that it was only Hazell who mentioned the Union During
her cross-examination, Harrington added other reasons for
Hazell's discharge she said she noticed that Hazell had
come in late the morning of January 13, had been talking
to employees, and had engaged in the same conduct the
day before She also stated that he had not been doing his
work
On the basis of the above, I find that Hazell was dis-
charged because of his activities on behalf of Local 144
rather than because of the reasons set forth by the Respon-
dent River Manor Hazell was engaged in an open pattern
of union activity at least a week prior to his discharge,
including the solicitation of many employees for authoriza-
tion cards for Local 144 In so doing he even solicited LPN
Russell, who has already been found to be a source of
information for Respondent Moreover, the precipitous na-
ture of his discharge without warning during the height of
his activity is more than suspicious and the reasons ad-
vanced by the Respondent River Manor for his termina-
tion are singularly unpersuasive The idea that he was hired
temporarily because of his split shift hardly obtains after a
period of more than 3 months without complaint He was
never asked by Harrington to change his shift Nor was it
established that his schedule caused any serious problems
in the operation of the nursing home Moreover,
RIVER MANOR HEALTH RELATED FACILITY 239
Harrington's belated advancement of additional reasons
during her testimony reflects her effort to grasp at straws in
piecing together a rationale for the discharge Although she
accused Hazell of having been late too often, there is no
indication that he was ever warned for this delinquency
nor did she ever speak to him concerning his alleged ne-
glect of duty or poor work performance Nor was he
warned for spending time speaking to other employees,
conduct which is alleged only to have occurred during the
last 2 days of employment, and was undoubtedly Hazell's
activity on behalf of Local 144 Accordingly, I find that by
discharging Hazell on January 13 Respondent River Man-
or violated Section 8(a)(1) and (3) of the Act
3 Mary Terrell
Terrell was hired on December 4 by Harrington as an
aide to work on the 8 a m to 4 p in shift In mid-Decem-
ber as Terrell was going to work she was given a card for
Local 144 by McKinney outside the building She went
into the building and began talking with the other aides
about Local 144 During their discussion in which the aides
agreed that Local 144 was a good union, LPN Pierre said
she had heard that Local 431 was coming in and that Mit-
chell, an aide, had been appointed to represent them and
Mercado was to represent the LPN's When Terrell in-
quired as to who appointed them since the employees had
not voted, Pierre told her to use her head, that nobody but
Harrington and Ostreicher appointed them
On January 12 Terrell received Local 144 authorization
cards from Spadaro, another aide, who had been given
them by Hazell but was afraid of getting involved On that
date, as other aides came into work, Terrell distributed
cards to at least five of them She picked up the signed
cards and gave them to Hazell who informed her at this
time that Frazier had been fired and he expected to be
fired next
Terrell was off the following day, January 13, and while
at home she received a phone call from Harrington She
was told not to bother to come in any more as Harrington
was not satisfied with her work Terrell said thank you and
hung up Prior to this, Terrell stated, Harrington had never
criticized her work for any reason
Harrington stated that she had observed Terrell at her
work and noted that she was not a good aide, was a very
poor worker, and was very untidy about herself and her
appearance Moreover, she did not give good patient care,
did not dress them well or bathe them or keep them clean
In addition Harrington characterized her attitude as "a lit-
tle snippy " 24 In spite of these rather serious complaints,
Harrington stated that she never actually warned Terrell
24 Harrington based her "snippy' comment on an alleged report she re-
ceived from Russell, the LPN, who told her that Terrell had said that she
aid not have to take orders from her Russell had inquired as to why Terrell
had not reported to her one morning when she was to commence work at 7
a in Terrell testified that the incident never occurred and that she never
worked on a shift beginning at 7 a in before she was discharged The only
time she came to work at 7 a in was after she had been reinstated in April
In this connection, I credit Terrell rather Harrington and Russell, whom I
have previously discredited In addition there is no indication that Terrell
was required to come to work at 7 a in at any time prior to her discharge
about her performance or attitude Although Harrington
thought she talked to Terrell about performance, she could
not recollect any specific time or incident, and she express-
ly admitted not talking to Terrell about her "snippyness" in
connection with Russell's report
I find Respondent River Manor's explanation for the
discharge of Terrell completely inadequate Terrell was al-
legedly discharged for poor performance as well as certain
personal habits and yet the supervisor is unable to point to
any specific incident or time relating to her performance
when she discussed these matters with Terrell On the other
hand, Terrell engaged in union activity including the distri-
bution of authorization cards and solicitation of signatures
openly right up to the last day before she was discharged
In addition she discussed the relative merits of Local 144
and the Respondent Union with LPN Pierre It has already
been shown that the LPN's frequently reported informa-
tion to Harrington and conveyed messages from her to the
aides In this connection it may be noted that Harrington
pointed to an alleged report she received from LPN Russell
concerning Terrell's attitude and relied upon it, she says, in
deciding to discharge Terrell In all the circumstances, I
conclude that Respondent River Manor discharged Terrell
because of her activities in behalf of Local 144 and thereby
violated Section 8(a)(1) and (3) of the Act
4 Allrich Normil
Normil was hired on September 1 as a cook by Samuel
Liefer, one of the proprietors On November 7 he met Lo-
cal 1115 Representative Morales outside the nursing home
who asked him if there was a union in the place and Nor-
mil told him there was not Normil said he would like to
have a union and Morales gave him some cards to be dis-
tributed and Normil signed a Local 1115 card at that time
Morales also told him he was unable to get into the build-
ing to talk to the employees because the administrator
would not permit him to go in Thereafter, Normil let Mo-
rales into the building on several occasions through the
backdoor to talk to the kitchen employees On January 10
Normil also signed an authorization card for Local 144
which had been given to him by Hazell Normil stated that
during a discussion he had one day in January with the
administrator, Ostreicher, about medical insurance, he told
Ostreicher he did not want to join the Respondent Union
and the latter replied that he would have to join the Union
in order to receive any benefits such as medical insurance
On March 25, Normil gave an affidavit to the National
Labor Relations Board in connection with the investiga-
tion of these cards About a week later several of the aides
told Normil that he had better be careful because manage-
ment knew that he had gone to the Board to give a state-
ment Normil could not identify who the aides were who
passed on this information to him
On April 11 several of the aides stopped working in pro-
test against working conditions Normil told them that he
supported their causes and said that the next move would
be among the kitchen employees Later that day he dis-
cussed the poor working conditions with Mark Barsano,
the other cook in the kitchen The food service manager,
240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lazarus, was present as well as some employees who Nor-
mil is unable to identify In their conversation, they made
reference to the lack of a medical program or benefits
Normil then went to see Mayer Laufer, the assistant ad-
ministrator, and asked him what the working conditions
were since they did not have a union or any benefits Ac-
cording to Normil, Laufer responded by asking about his
activities with Local 1115 and Local 144 Normil said that
he thought that the employees had a right to have their
own union and then Laufer said what about Local 531
That was the end of the conversation
On April 13 Laufer called Normil and told him he want-
ed to see him before he left Normil reported to Laufer
when he finished working and was told that his services
were not needed any more He was not given any other
reason, Normil did not ask why and he left
Laufer disputed Normil's version of the April I I meeting
in his office He said that Normil came in and told him that
he couldn't get along with Lazarus and Barsano and that
he wanted Laufer to fire Barsano Laufer refused, telling
Normil that he thought Barsano was a good cook Laufer
further states that the only thing mentioned about unions
in this conversation was a statement by Normil that Barsa-
no was giving out cards for the Union (referring to the
Respondent Union) and Laufer stated that he did not care
about unions since Barsano was a good cook
The Respondent River Manor contends that it dis-
charged Normil because he was not able to handle the
cooking for and feeding of the large number of patients
resident at the nursing home at the time, that he was in-
competent, and that his performance demonstrated by a
large number of incidents reached a point where they were
unable to keep him any longer Both Laufer and Marvin
Ostreicher, the administrator, testified at length to the per-
formance of Normil According to them Normil had been
reasonably competent at the outset of his employment
when there was a small number of patients in the facility
However, the initial number of 15 or 20 patients at that
time rose to something between 250 and 300 at the time of
his discharge They claimed that Normil was not organized
enough in his work to cope with the large number of peo-
ple
Laufer and Ostreicher testified to a large number of inci-
dents demonstrating Normil's incompetence It is not nec-
essary to go into great detail as to all of these occurrences,
but the following indicate the basis for their conclusion
He frequently splashed food while serving and on at least
one occasion severely burned another employee, 70
pounds of beef stew was lost due to improper preparation
by Normil, he served diabetic patients borscht with sugar
despite the fact that the kitchen stocked two kinds, one of
which was for the purpose of diabetic patients, Normil pre-
pared vegetables without washing them, he constantly left
food uncovered particularly hot food,25 he left chicken gi-
blets in a sink overnight, Normil refrigerated meat and fish
in the same pot, he used the unsanitary pot sinK for soak-
25 Apparently the issue of covering the hot food was always debated be-
tween Normil Laufer and Ostreicher It appears that Normil left hot foods
uncovered to cool off before refrigerating them which is contrary to the
local health department regulations
ing meats,26 Normil used a nondairy creamer for cooking
contrary to instruction The culmination of Normil's trans-
gressions occurred during the Passover holidays which
commenced on March 27 27 During this holiday, at a time
when Normil was the only cook working, he prepared a
batch of non-Passover noodles When this was observed by
the rabbi, the noodles had to be thrown away Normil ad-
mitted doing this but states that they were the only noodles
left for him to use by Lazarus According to Ostreicher, in
preparation for the Passover holidays, all foods which are
forbidden to be used during the holiday were put to one
side and covered with sheets so that the cooks would know
that they could not use anything under the sheets I credit
Ostreicher in this connection as it is reasonable to assume
that the gravity of the religious laws would mandate a sys-
tem which would facilitate compliance At the time of the
noodles incident, Ostreicher was out of town and, when
advised by Laufer by phone, it was decided to get rid of
Normil at once According to Ostreicher and Laufer, they
had discussed over a long period of time the possibility of
replacing Normil, but it was difficult to obtain a suitable
replacement, particularly because of the location in which
the nursing home was situated In any event, they had de-
cided that they would replace him as soon as the holidays
were over However, when Ostreicher received a call from
Laufer as to the noodle incident, he determined to act at
once At that time Laufer heard of another nursing home
which was closing and was able to hire a cook, Braithe-
waite, who had worked there, to commence working on
April 16 to replace Normil in the regular rotation Normil
had been scheduled to be off on April 14 and 15 Braithe-
waite testified credibly that he went to the nursing home on
April 10, filled out an application, and was told on that day
by Laufer that he was hired
With regard to the incidents enumerated above, Normil
admitted most of them However, Normil was evasive and
changeable in his testimony and I do not credit him He
would deny an incident had occurred, then he admitted it,
and attempted to excuse it or blame someone else for doing
it In view of the fact that there were only two cooks em-
ployed at the nursing home during the period and often
they did not work at the same time, it would appear to be
a rather simple matter to determine the responsibility for
any of the events discussed above Both Laufer and Os-
treicher spoke to him on many occasions following the var-
ious incidents and while they did not threaten him with
discharge they nevertheless remonstrated with Normil and
tried to explain the proper procedures Normil did not
deny that he was spoken to on these occasions although he
attempted to vary the impact of what was told to him In
any event it is clear from the above that Normil was, at the
least, a very unsatisfactory employee
While it is true that Normil engaged in certain union
activity, this was spread over a period of many months and
26 A health department inspector upon visiting the nursing home had
warned against using a sink in which pots were cleaned for the purpose of
soaking meats The cooks had been instructed not to do this and to use a
separate sink for the purpose of soaking meats
The Respondent River Manor operated its nursing home and kitchen
in a strictly Orthodox Jewish manner and thus it was necessary to observe
all dietary laws and the kitchen and food was subject to inspection by
rabbis
RIVER MANOR HEALTH RELATED FACILITY
does not appear to have been continuous Thus, he signed
a Local 1115 authorization card in November and at that
time permitted a Local 1115 representative entry to the
kitchen There is no indication that Respondent River
Manor was aware of this He then signed a card for Local
144 in January and had a conversation with Ostreicher
about medical benefits which was uncoercive I do not
credit Normil's assertion that Laufer coercively interrogat-
ed him in his office on April 11 as the uncontradicted and
credited testimony is to the effect that his replacement had
actually been hired on April 10, the day before Noted also
is the fact that by this time the Board had already issued
complaints against the Respondent River Manor I find in
all the circumstances that the General Counsel has not es-
tablished by a preponderance of evidence that Normil was
discharged because of his union activities rather than his
palpable incompetence
The only evidence in support of General Counsel's con-
tention that the Respondent River Manor discharged Nor-
mal because he had given an affidavit to the Board is
Normil's testimony that he was warned by some unknown
employees that management knew that he had given the
statement to the Board As this testimony is unsupported
and not probative, the 8(a)(4) allegation of the complaint
must also be dismissed
As I have not credited Normil's testimony concerning
his conversation with Laufer on April 11, I conclude that
the allegation that he was interrogated in violation of Sec-
tion 8(a)(1) by Laufer concerning his activities on behalf of
Locals 1115 and 144 be also dismissed
In sum, I shall recommend dismissal of the complaint in
Case 29-CA-4307 in its entirety
C The Violations of Section 8(a)(1)
On the basis of the credited evidence and the findings
made above and particularly the conclusions that the
LPN's acted as conduits and agents of Respondent River
Manor in connection with the organizational campaign on
behalf of Respondent Union, I further find that Respon-
dent River Manor engaged in independent violations of
Section 8(a)(2) LPN Mercado promised benefits to Town-
send by stating that Harrington wanted everyone to hurry
up and join the Union to get more benefits In the same
conversation, she also threatened Townsend by telling her
that she had better sign the card if she wanted to continue
to work This occurred in November as did the conduct of
LPN Russell, who told Frazier that Harrington said that
those who did not sign Local 531 cards would be fired and
told the same thing to Williams Thereafter, the threats by
Zehnwirth, the bookkeeper, to employees on January 16,
1975, that they had to sign checkoff authorization cards in
order to obtain their paychecks constituted threats in viola-
tion of Section 8(a)(1) of the Act
In conclusion I find that both promises of benefits and
threats of reprisals were made to employees in November
in order to induce them to sign authorization cards for
Respondent Union and, further, threats were made to
force employees to sign checkoff cards in January All of
this conduct constituted violations of Section 8(a)(1) of the
Act
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
241
The activities of the Respondent set forth in section III
above, occurring in connection with the operations of Re-
spondent River Manor described in section I above, have a
close, intimate, and substantial relation to trade, traffic,
and commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce
V THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that they be or-
dered to cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies of the
Act
As I have found that Respondent River Manor recog-
nized Respondent Union at a time when that labor organi-
zation did not represent an uncoerced majority of its em-
ployees and that Respondents entered into a recognition
agreement and continued to enforce that agreement by re-
quiring employees to execute dues-checkoff authorization
cards, I shall recommend that Respondent River Manor be
required to withdraw and withhold recognition from Re-
spondent Union as the collective-bargaining representative
of its employees and to cease giving effect to that agree-
ment As it appears that no dues or initiation fees were
actually deducted from employees' wages or otherwise col-
lected by Respondent Union, I shall not recommend any
reimbursement remedy
It also appears that Respondent River Manor has rein-
stated Brenda Frazier, Albert Hazell, and Mary Terrell to
their former positions as nurses aides or orderlies I shall
therefore recommend that Respondent River Manor make
them whole for any losses they may have sustained and
backpay as provided in F W Woolworth Company, 90
NLRB 289 (1950), and Isis Plumbing and Heating Co, 138
NLRB 716 (1962)
CONCLUSIONS OF LAW
1 Respondent River Manor is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act
2 Respondent Union, Local 144, and Local 1115 are
labor organizations within the meaning of Section 2(5) of
the Act
3 By recognizing and bargaining with Respondent
Union on and after December 9, 1974, when Respondent
Union did not represent an uncoerced majority of its em-
ployees, Respondent River Manor has violated Section
8(a)(1) and (2) of the Act By permitting representatives of
Respondent Union on company premises during company
time, by otherwise assisting Respondent Union in obtain-
ing union authorization cards from its employees, by caus-
ing membership cards in Respondent Union to be solicited
by its employees, Respondent River Manor further violat-
ed Section 8(a)(2) of the Act
4 By seeking to enforce a provision in said recognition
242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agreement that a union-security clause be included in any
collective-bargaining agreement thereafter negotiated in
such manner as to require employees to sign dues-checkoff
cards on behalf of Respondent Union, Respondent River
Manor has violated Section 8(a)(3) of the Act
5 By discharging Brenda Frazier, Albert Hazell, and
Mary Terrell, its employees, because of their activities on
behalf of Local 144, Respondent River Manor discriminat-
ed against said employees in violation of Section 8(a)(3) of
the Act
6 By refusing access to its premises and employees to
Locals 144 and 1115 at a time when it accorded such privi-
leges to Respondent Union, the Respondent River Manor
thereby rendered unlawful assistance to Respondent
Union in violation of Section 8(a)(2) of the Act
7 By promising benefits to induce employees to join
and threatening employees with loss of employment should
they fail to become members of Respondent Union, Re-
spondent River Manor violated Section 8(a)(1) of the Act
By the acts and conduct set forth in Conclusions of Law 3
through 6, Respondent River Manor further violated Sec-
tion 8(a)(1) of the Act
8 Respondent Union, by entering into a recognition
agreement with Respondent River Manor at a time when it
did not represent an uncoerced majority of the employees
of that employer, and by including in said recognition
agreement a provision that a future collective-bargaining
agreement shall contain a union-security clause, and by
maintaining and enforcing that provision so as to require
employees to sign dues deduction authorization cards, the
Respondent Union has thereby violated Section 8(b)(2)
and Section 8(b)l(A) of the Act
9 The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act
10 The General Counsel has not established by a pre-
ponderance of evidence that Respondent has violated the
Act with respect to the allegations to the complaint in Case
29-CA-4307
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended
ORDER 2a
A Respondent Samuel Liefer and Harry Ostreicher, a
Copartnership, d/b/a River Manor Health Related Facili-
ty, Brooklyn, New York, its partners, agents, successors,
and assigns, shall
1 Cease and desist from
(a) Recognizing or bargaining with Local 531, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, as the collective-bargaining
representatives of its employees, unless and until said labor
organization is certified by the Board as the collective-bar-
29 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
10248 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
gaining representative of said employees pursuant to Sec-
tion 9(c) of the Act
(b) Giving effect to a certain recognition agreement be-
tween Respondent River Manor and Respondent Union
dated December 9, 1974, or any extension or modification
thereof, and seeking to enforce said agreement by requir-
ing employees to sign dues-checkoff cards for Respondent
Union
(c) Assisting Respondent Union by soliciting authoriza-
tion cards on its behalf from its employees, and granting
access to its premises for the purpose of solicitation and
conducting of meetings by Respondent Union and refusing
to accord similar access to Local 144 and Local 1115
(d) Promising benefits or threatening employees with
discharge in order to influence their selection or rejection
of a collective-bargaining representative
(e) Discouraging membership in Local 144, Hotel, Hos-
pital, Nursing Home and Allied Health Services Union,
affiliated with Service Employees International Union,
AFL-CIO, and Local 1115, Joint Board, Nursing Home,
and Hospital Employees Division, or any other labor orga-
nization, by discharging or otherwise discriminating
against employees in respect to their hire or tenure of em-
ployment or other conditions of employment
(f) In any other manner interfering with, restraining, or
coercing its employees in the exercise of rights guaranteed
them in Section 7 of the Act
2 Take the following affirmative action designed to ef-
fectuate the purposes and policies of the Act
(a) Withdraw and withhold all recognition from Re-
spondent Union as the representative of its employees for
the purpose of dealing with the Respondent River Manor
concerning grievances, labor disputes, wages, rates of pay,
hours of employment, or other terms or conditions of em-
ployment, unless and until the National Labor Relations
Board shall certify the Respondent Union as such repre-
sentative, and abrogate the recognition agreement with Re-
spondent Union covering such employees
(b) Make whole Brenda Frazier, Albert Hazell, and
Mary Terrell for any loss of pay or other benefits they may
have suffered as a result of the discrimination found
against them, in the manner set forth in the remedy section
herein
(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,
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 the nursing home facility in Brooklyn, New
York, copies of the attached notice marked "Appendix
A " 29 Copies of said notice, on forms provided by the Re-
gional Director for Region 29, after being duly signed by
Respondent's representatives, shall be posted by it immedi-
ately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
29 In the event the Board s Order is enforced by a Judgment of the 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
RIVER MANOR HEALTH RELATED FACILITY 243
ing all places where notices to employees are customarily
posted Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or covered
by any other material
(e) Notify the Regional Director for Region 29, in writ-
ing, within 20 days from date of this Order, what steps
Respondent has taken to comply herewith
B Respondent Local 531, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, Yonkers, New York, its officers, agents, and rep-
resentatives, shall
1 Cease and desist from
(a) Giving effect to a certain recognition agreement be-
tween the said Respondent Union and Respondent River
Manor dated December 9, 1974, or any modification or
extension thereof, and seeking to enforce such agreement
by requiring employees to sign dues-checkoff cards
(b) Acting or purporting to act as the collective-bargain-
ing representative of the employees of Respondent River
Manor, unless and until it shall have been certified by the
Board as the collective-bargainmg representative of said
employees pursuant to Section 9(c) of the Act
(c) In any other manner interfering with, restraining, or
coercing employees of Respondent River Manor in the ex-
ercise of rights guaranteed to them by Section 7 of the Act
2 Take the following affirmative action designed to ef-
fectuate the purposes and policies of the Act
(a) Post at its office copies of the attached notice
marked "Appendix B "30 Copies of said notice on forms to
be provided by the Regional Director of Region 29, after
being duly signed by the Respondent Union's representa-
tive, shall be posted by Respondent Union immediately
upon receipt thereof, and be maintained by it, for 60 con-
secutive days thereafter, in conspicuous places, including
all places where notices to members are customarily post-
ed Reasonable steps shall be taken by the Respondent
Union to insure that said notices are not altered, defaced,
or covered by any other material
(b) Furnish to the Regional Director for Region 29
signed copies of said notice for posting by Respondent
River Manor in places where notices to employees are cus-
tomarily posted
(c) Notify the Regional Director for Region 29, in writ-
ing, within 20 days from the date of this Order what steps
Respondent Union has taken to comply herewith
IT IS FURTHER ORDERED that the complaint in Case 29-
CA-4307 be dismissed in its entirety
30 See fn 29 supra