Seaport Manor Home for Adults

National Labor Relations Board - Board Decisions

Apr 1, 1980

248 N.L.R.B. 886 (N.L.R.B. 1980)

886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Seaport Manor, Inc. and Martin Rosenberg, Baruch
Mappa, and Emil Klein, a Partnerslhip, d/b/a
Seaport Manor Home for Adults and Joseph
Johnson; Shirley Johnson; Local 6, Internation-
al Federation of Health Professionals, Interna-
tional Longshoremen's Association, AFL-CIO.
Cases 29-CA-5634, 29-CA-5942-2, and 29-
CA-5961
April 1, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND TRUESDALE
On November 7, 1979, Administrative Law
Judge Max Rosenberg issued the attached Decision
in this proceeding. Thereafter, the Respondent filed
exceptions and a supporting brief, and the General
Counsel filed cross-exceptions and a supporting
brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order. 2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Seaport Manor,
Inc. and Martin Rosenberg, Baruch Mappa, and
Emil Klein, a Partnership, d/b/a Seaport Manor
Home for Adults, Brooklyn, New York, their offi-
cers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order.
l The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevint evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products.
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
I The General Counsel has excepted to the Administrative Law
Judge's failure to recommend that interest on backpay should be comput-
ed at the rate of 9 percent per annum We find no merit in this conten-
tion. See Florida Steel Corporation, 231 NLRB 651 (1977).
DECISION
MAX ROSENBERG, Administrative Law Judge: This
proceeding was heard before me in Brooklyn, New
York, on April 12, 13, 14, 24, 25, 26, and 27 and May 24
and 25, 1978, upon a consolidated, amended complaint
248 NLRB No. 120
filed by the General Counsel of the National Labor Rela-
tions Board and an answer interposed thereto by Seaport
Manor, Inc., and Martin Rosenberg, Baruch Mappa, and
Emil Klein, a Partnership, d/b/a Seaport Manor Home
for Adults, herein called the Respondent. l At issue is
whether Respondent violated Section 8(a)(1), (2), (3), (4),
and (5) of the National Labor Relations Act, as amend-
ed, by certain conduct to be detailed hereinafter. Briefs
have been received from the General Counsel and Re-
spondent which have been duly considered.2
Upon the entire record made in this proceeding, in-
cluding my observation of the demeanor of each witness
who testified, I hereby make the following:
FINDINGS OF FACT AND CONCLUSIONS
1. THE BUSINESS OF RESPONDENT
It is undisputed and I find that Seaport Manor, Inc.,
sometimes referred to herein as the Corporation, a New
York corporation, has, during the times material to this
proceeding, maintained its principal office and place of
business in the Borough of Brooklyn, city and State of
New York, where it is engaged in the business of owning
and leasing real property at the premises of 615 East
104th Street, Brooklyn, New York, styled as the Seaport
Manor Home for Adults, herein called the Home.
It is further undisputed and I find that Martin Rosen-
berg, Baruch Mappa, and Emil Klein are engaged as a
copartnership doing business under the trade name and
style of the Home. At all times material herein, the
Home has maintained its principal office and place of
business at the address referred to above, where it is en-
gaged in providing residential and psychiatric care and
related services as a private, proprietary home for adults.
The record shows that, on January 13, 1978, the Re-
gional Director for Region 29, on behalf of the General
Counsel, issued an order in which the charges filed
against the Corporation by Joesph Johnson in Case 29-
CA-5634, by Shirley Johnson in Case 29-CA-5944-2,
and by Local 6, International Federation of Health Pro-
fessionals, International Longshoremen's Association,
AFL-CIO, herein called the Union, in Case 29-CA-
5961, were consolidated for purposes of hearing. On
April 3, 1978, the General Counsel served on opposing
counsel a consolidated amended complaint with a cover-
ing notice of motion which advised that, at the com-
mencement of the hearing herein, he intended to amend
the outstanding consolidated complaint to add the Home
as a party respondent. When the hearing commenced on
April 12, 1978, the motion was urged on me, whereupon
opposing counsel, who represented both entities, at-
tacked the validity of the motion on the ground that the
addition of the Home as a party respondent was barred
by the strictures of Section 10(b) of the Act.3 Counsel
I The complaint, which issued on April 3. 1978, is based on charges
which were filed and served in the following cases on the following
dates: Case 29-CA-5634, May 11, 1977; Case 29-CA-5942-2. October 12
and 14, 1977; and Case 29-CA-5961. October 7 and 12, 1977.
2 The General Counsel's unopposed motion to correct the record in
certain minor respects is hereby granted.
3 In pertinent part, that Section provides that: "no complaint shall issue
based upon any unfair labor practice occurring more than six months
Continued
SEAPORT MANOR, INC. 887
therefore argued that, inasmuch as the Home, and not
the Corporation, was the only employer of the employ-
ees involved, the consolidated complaint, as amended,
was defective as a matter of law and should therefore be
dismissed. Ruling on the said motion was deferred pend-
ing receipt of all material and relevant evidence bearing
thereon. After a review of that evidence, the motion is
hereby granted for the reasons set below.
It is uncontroverted and I find that, sometime prior to
January 1975, the Corporation was founded for the sole
purpose of constructing and owning the real property of
the Home which was to be utilized in affording residen-
tial care for enfeebled and infirmed adults. With its for-
mation, the Corporation has been closely controlled and
manned by three officers. Baruch Mappa assumed the
post of president, Martin Rosenberg was designated as
the vice president, and Emil Klein became an officer
whose title was not defined on the record. During the
construction phase of its operation, the Corporation
hired construction employees as well as independent
building contractors to erect the edifice. When construc-
tion was completed in January 1975, the Corporation no
longer retained any employees but continued to exist ex-
clusively for the purpose of drawing rental revenues
from the Home, which was thereupon created as a co-
partnership consisting of Mappa as president, Rosenberg
as the manager, and Klein. Thereafter, Rosenberg con-
sulted closely with Mappa in the hire and discharge of
employees of the Home, and in the setting of their terms
and conditions of employment. Moreover, Rosenberg,
with Mappa's concurrence, attended to the payroll,
bookkeeping, and purchasing chores. As more fully
chronicled hereinafter, Mappa, in collaboration with
Rosenberg, executed a collective-bargaining agreement
with the Union on December 27, 1976, in which the
name of the employer was listed as the Corporation. Ad-
ditionally, in the operation of the Home, some warning
notices and other communications to employees were
made on the Corporation's business stationery. Further-
more, during the investigation of the charges giving rise
to this proceeding, management officials of the Home
identified the employer of the Home's employees as the
Corporation.
On the record evidence before me, I am persuaded
that all the elements of a single-employer relationship be-
tween the Corporation and the Home are present here.
That evidence establishes that common ownership,
common management, and centralized control over labor
relations exists. In sum, I conclude that the Home was
properly joined as a respondent herein and may be held
liable for any of the unfair labor practices encompassed
in the consolidated, amended complaint.s Accordingly, I
conclude that both the Corporation and the Home con-
stitute the Respondent in this litigation.
The complaint further alleges and the answer admits
that, during the material, annual period, Respondent, as a
private, proprietary home for adults, derived gross rev-
prior to the filing of the charge with the Board and the service of a copy
thereof upon the person against whom such charge is made .... "
' Esgra Inc.., and Esgro Valley, Inc., 135 NLRB 285 (1962); Royal Type-
writer Company, et al., 209 NLRB 1006 (1974), Clinch Valley Clinic Hospi-
tal, .4 Division of Bluefield Sanitarium, Inc., 213 NLRB 515 (1974).
enues in excess of $250,000 and purchased and caused to
be delivered to the Brooklyn-based Home, food, pharma-
ceuticals, and other goods and materials valued in excess
of $50,000 which were delivered to the Home from
other enterprises located in the State of New York, each
of which other enterprises had received the goods and
materials in interstate commerce directly from States of
the United States other than the State of New York. Ac-
cordingly, I find that the Respondent is an employer en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
It is undisputed and I find that the Union and Local
144 are labor organizations within the meaning of Sec-
tion 2(5) of the Act.
111. THE ALLEGED UNFAIR LABOR PRACTICES
The consolidated, amended complaint alleges that Re-
spondent offended the provisions of the Act by: (I) coer-
cively interrogating its employees in May, June, and
July, 1977, concerning their activities on behalf of and
support for Local 144, Hotel, Hospital, Nursing Home
and Allied Health Services, affiliated with Service Em-
ployees International Union, AFL-CIO, herein called
Local 144, in violation of Section 8(a)(1) of the Act; (2)
deducting union dues from its employees' wages on dates
between April and September 1977, and paying same to
the Union, without first obtaining authorization from the
employees to make such deductions, in violation of Sec-
tion 8(a)(2) of the Act; (3) paying moneys in the nature
of union dues to the Union on behalf of its employees in
January and February 1977, without either deducting
those moneys for the wages of the employees or other-
wise collecting those moneys from authorized deductions
from its employees' wages for transmission to the Union,
in violation of Section 8(a)(2) of the statute; (4) laying off
Joseph Johnson on May 10, 1977, and thereafter recall-
ing him on July 20, 1977, to a position which was not
substantially equivalent to that which he formerly occu-
pied, because he had filed a complaint with the United
States Labor Department's Wage-Hour Division on
behalf of Respondent's employees, and had engaged in
other protected, concerted activity in support of Local
144, in violation of Section 8(a)(3) of the Act; (5) fur-
loughing Shirley Johnson on September 30, 1977, be-
cause it believed that she had assisted Local 144 in an or-
ganizational endeavor, had filed complaints of racial dis-
crimination against Respondent with the New York State
Division of Human Rights, had engaged in other con-
certed, protected activities in opposition to the Union,
and had filed a petition with the Board under the Act, all
in violation of Section 8(a)(1), (3), and (4) of the Act; (6)
discharging Aubrey Surgeon on April 27, 1978, because
he gave testimony under the Act, in violation of Section
8(a)(4) of the Act; and (7) encouraging employees to re-
frain from paying dues to the Union, promising and
granting employees health care benefits to induce them
to refrain from becoming or remaining members of the
Union, or assisting that labor organization, or to induce
them to abandon their membership in the Union, all in
SEAPORT MANOR, NC.
888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
violation of Section 8(a)(5) of the Act. For iLts part, Re-
spondent denies the commission of any labor practices
banned by the controlling legislation.
As indicated above, Respondent opened its Home in
January 1975 for the admission of adult residents and
commenced to hire employees to perform the duties of
chambermaids, maids, kitchen and dining room workers,
porters, medication dispensers, recreation directors,
maintenance men, and watchmen. Martin Rosenberg,
who assumed the position of manager of the Home, testi-
fied without contradiction and I find that employees
were not recruited for a particular classification of work,
but were assigned to perform a variety of jobs in the
course of their employment.
The record discloses that, sometime in November
1976, the Union embarked on an organizational campaign
at Respondent's facility. In early December 1976, Union
Organizer Ralph Simmons appeared at the Home and
proffered union authorization cards to Florence Doram,
a housekeeper, who was asked by Simmons to distribute
the designations to the employees for signature. Doram
signed a card and solicited other employees to do so. In
late December 1976, Baruch Mappa, Respondent's presi-
dent, met with William Perry, the president of the
Union. As a result of this meeting, the parties executed a
collective-bargaining agreement effective from Decem-
ber 27, 1976, until January 1, 1980. This compact con-
tained a union-security clause which required member-
ship in the Union following the 31st day of employment.
At the hearing, the General Counsel disclaimed any con-
tention that either the contract or the union-security pro-
vision bore the taint of illegality.
Joseph Johnson was hired by Respondent on January
5, 1977, 5 and was assigned to perform the duties of a
porter on the day shift. At the time, Respondent retained
only one other employee in that capacity, a Jean Mero-
lus. Johnson testified that, during his entrance interview,
Manager Rosenberg informed him that the employees at
the Home were covered by a collective-bargaining
agreement which required membership in the contracting
labor organization after 30 days' employment. In Febru-
ary, Rosenberg advised both Joseph Johnson and Shirley
Johnson, who worked in the dining room, that union
membership would be required of them and that he
would be obligated to deduct membership dues from
their wages. Joseph Johnson replied that he had no ob-
jection to this collection, but Shirley Johnson opposed
the deduction until such time as she was apprised of the
benefits which the Union had to offer.
Joseph Johnson further testified that, on April 27,
Marvin Wimbush, the administrative assistant to Union
President Perry, visited the Home. During his stay,
Wimbush produced a sheet of paper which bore the no-
tation that the employees who appended their signatures
thereby authorized the deduction of union dues from
their wages. Thereupon, Johnson and several other em-
ployees signed the sheet. A discussion then ensued con-
cerning the position of shop steward at the Home which
was currently held by Florence Doram, a housekeeper.
At Wimbush's suggestion, the employees decided to con-
' Unless otherwise indicated, all dates hereinafter fall in 1977.
duct an election in order to choose a replacement for
her. Because too few employees were available to cast
their votes that day, the election was deferred until May
2. On that date, Johnson was selected by his fellow em-
ployees to replace Doram.
Johnson testimonially related that, immediately follow-
ing his election as steward on May 2, employees Gladys
Dorcy and Julia Bras registered a complaint with him
concerning their duty schedules and their failure to be
paid for overtime work. Johnson conveyed the com-
plaint to Bert Liebman, who had been hired by the
Home in March to serve as the assistant administrator.
Liebman advised Johnson that the work hours which
Dorcy and Bras had toiled were not excessive and added
that, in any event, new work schedules would be re-
leased that afternoon which would resolve the matter.
On May 3, when the new schedules were posted, em-
ployees Mavis Martin and Theresa Noel discovered that
they would be required to work 9 and 7 straight days,
respectively. These employees brought the issue to John-
son's attention, complaining that they were unable to
perform the new work regimen because of family consid-
erations. Johnson relayed these complaints to Liebman
who reported that state regulations mandated the pres-
ence of employees at the Home on a 7-day basis and that
he was powerless to change the schedule. On May 4,
Johnson telephoned the U.S. Department of Labor and
presented the complaints to that agency. On May 6, the
Department of Labor responded in writing that an inves-
tigation of the matter would be undertaken.
It is Johnson's further testimony that, on May 6, as he
prepared to leave work, he was told by employee Noel
that she had been terminated by Respondent and, on the
following day, he received a similar report from Bras.
On May 9, after discussing the terminations with Flor-
ence Doram and other housekeeping employees, Johnson
approached Respondent's manager, Rosenberg, and
stated that Noel and Bras has been laid off out of senior-
ity and should be recalled. According to Johnson,
Rosenberg agreed immediately to reinstate Bras that
morning, but declined to recall Noel. 6
On May 9, after receiving the letter from the U.S.
Labor Department promising an investigation of the
complaints which he had lodged, Johnson showed the
letter to some of the complaining employees. He then
gave the document to Rosenberg and asked the manager
to make photocopies of it. Rosenberg did so and retained
a copy. Later that day, Johnson approached Hyman
Jacobs, the Home's administrator. Holding the letter in
his hand, Jacobs inquired into its meaning. Johnson re-
plied that he had registered a complaint with that agency
and, when Jacobs pressed for more information, Johnson
stated that he felt that Gladys Dorcy and Theresa Noel
should be recalled to work because they had greater se-
niority then Mavis Martin and Esther Plummer who had
been retained. Johnson added that he had contacted the
Union about the problem. Jacobs consulted with Rosen-
berg and, displaying the pertinent provision in the collec-
tive-bargaining agreement relating to the termination of
6 In this connection, par. 8 of the contract between the Union and Re-
spondent provides that "Seniority shall prevail in the layoff and rehiring
of employees."
SEAPORT MANOR, INC. 889
probationary employees within 90 days of their hire for
any reason, Jacobs informed Johnson that the layoff of
the employees was contractually permissible and the
matter was dropped.
In his testimony, Johnson went on the recall that,
early in May, he had a conversation relating to unions
and employee-benefits with Assistant Administrator
Liebman, and the name of Local 144 arose. In this con-
nection, the record discloses that, in or about December
1976, Local 144, a labor organization affiliated with an-
other health care union, had instituted an organizational
campaign at the River Manor Health Related Facility
which was located across the street from the Home, and
its representatives normally patrolled near that establish-
ment. According to Johnson, he had never previously
heard of that organization. As the dialogue continued,
Liebman remarked that he had known an individual
named Clarence for several years who held some office
in Local 144, and Liebman observed that t tI union was
a good one which provided desirable benefits for its
members.
On May 6, Johnson was requested by Liebman to
bring some of his clothes from his automobile which was
parked outside the building. Johnson did so and, as he
began his return to the building, he was accosted by a
stranger who introduced himself as Sam and represented
himself as an agent of Local 144. Sam commenced to fill
Johnson in on the benefits which his organization had to
offer, and inquired whether the employees at the Home
were covered by a labor contract. Johnson replied that
they were represented by a union but were not under
contract because, according to the shop steward, he was
given to understand that the compact which Jacobs had
shown him on the previous day was simply a "Memoran-
dum of Agreement." At this juncture, Sam handed over
some cards for Local 144 and stated that, if the employ-
ees desired to be represented by another labor organiza-
tion which afforded greater benefits, he should sign one
and solicit other employees to follow his example.
During his lunchbreak on May 10, Johnson again en-
countered Sam outside the Home who asked whether
Johnson had procured the signed authorizations for the
union agent. Johnson replied in the negative, and the
representative once again urged him to do so. There-
upon, Sam proffered an additional 20 designations which
Johnson took back to work with him. During the bal-
ance of the lunch period, Johnson and some employees
launched into a discussion of labor organizations. In the
course of their dialogue, Housekeeper Florence Doram
broke in and protested that the employees needed a more
effective spokesman than the Union because its only con-
cern up to that point had been devoted to force Respon-
dent to reinstate Shirley Johnson following her discharge
for reasons which will be considered more fully below.
Johnson then informed the assemblage that he had
spoken to an agent for Local 144. Employee Anna Pil-
grim interjected and mentioned that she had been repre-
sented by this entity in the past when she was employed
at a hospital, and that it had provided excellent benefits
for its members. Johnson thereupon handed out cards to
Pilgrim, Esther Plummer, and Doram, but instructed
them to wait a day before executing them so that he
could explore the extent of the benefits which the Union
had to offer.
Johnson further testified that, on the afternoon of May
10, he was notified that he had a telephone call in Assis-
tant Administrator Liebman's office. When he arrived,
Johnson found Liebman and Anna Pilgrim there. John-
son answered the call and Union Representative Marvin
Wimbush was on the other end. Wimbush inquired,
"Joseph I hear they tell me you are passing around a pe-
tition." When Johnson denied that he had done so, the
conversation ended. Johnson returned to his chores and,
later that afternoon, he was summoned to Liebman's
office where Liebman gave him his pay envelope. As
Johnson prepared to leave the office, Liebman called
out, "Well take it easy and tell Clarence I said hello."
Before he left the Home, Johnson ventured into Manager
Rosenberg's office to obtain a layoff slip which would
qualify him for unemployment compensation benefits.
Rosenberg completed the form and handed it to Johnson,
commenting that he was sorry to see Johnson go but that
there was no work available for him.8 According to
Johnson, he was the only employee to be laid off at the
time. Moreover, on the basis of Respondent's own per-
sonnel records, Johnson had received the highest marks
for his work attitude and the quality of his work. On
May 11, Johnson journeyed to the Board's Regional
Office and filed charges against Respondent alone re-
garding his removal from its employment rolls on the
preceding day.
Johnson testified that, following his layoff, he heard
that Respondent had hired a few individuals who were
doing his work as a porter. This information prompted
him to return to the Home in June and ask Manager
Rosenberg if there were any openings for him. Rosen-
berg replied that conditions had not changed and that no
jobs were available.
On June 30, the Regional Director issued a complaint
against Respondent based on the unfair labor practice
charges which Johnson had filed against it on May 11. In
the complaint, the General Counsel alleged that Respon-
dent had laid off Joseph Johnson on May 10 because of
the latter's activities on behalf of Local 144 and because
he had engaged in the protected, concerted activity of
filing a complaint with the U.S. Department of Labor.
On July 15, Johnson received a telephone call from
Union Representative Wimbush instructing him to come
to the Union's offices and assist in negotiating the terms
of his return to work at the Home. On July 17, Johnson
I When called as a witness, Doram failed to deny Johnson's account of
the events which transpired at the luncheon break on May 10. Moreover,
she testified that, following Johnson's layoff, she spoke to a solicitor for
Local 144 outside the Home who informed her that the labor organiza-
tion was attempting to obtain Johnson's reinstatement. Doram hastily
conveyed this information to Manager Rosenberg and, in response to the
inquiry, denied that she had signed an authorization card for that union.
8 Employee Virginia Barker testified that, on the morning of May 10,
she met an agent of Local 144 outside the Home and received and au-
thorization card from him. Her testimony is undenied that, later that
afternoon, as she prepared to quit work with Florence Doram, Manager
Rosenberg and Administrator Jacobs approached the women and asked
whether they had signed any Local 144 designations. Both ladies replied
in the negative. Unsatisfied with their response, the officials repeated the
query Both Barker and Doram again disclaimed engaging in any such
activity
SEAPORT MANOR, INC. 9
890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
appeared at the union hall and met with Wimbush and
Union President Perry. After much discussion, Johnson
agreed to accept reinstatement with a backpay award for
5 of the approximately 11 to 12 weeks he had been out
of work. Johnson was then told by the union agents that
they would contact Respondent and present the rein-
statement proposal to it. When the session ended, John-
son was instructed to appear at the Home on July 20. On
the latter date, Johnson attended a meeting with Wim-
bush and Home Administrator Hyman Jacobs. Wimbush
asked for Johnson's return to work with a backpay
award of $540 and the payment of the wage increase
which the other employees had gained in the interim.
When Jacobs claimed that a position on the night shift
only was available, Johnson reluctantly accepted the
offer. Thereupon, the union officials assured Johnson
that they would attend to the withdrawal of the charges
which he had filed against Respondent with the Board.
With Johnson's reinstatement on July 20, the current
night porter, Aubrey Surgeon, who had been hired by
Respondent in April, was tranferred to the day shift on
which Johnson had formerly toiled. The record discloses
and I find that, in addition to Surgeon, Respondent also
had on its roster a porter named Ralph Lopez who had
been hired after Johnson was laid off on May 10.
Johnson continued in Respondent's employ until
August 5, when he was discharged after receiving three
warning notices from Night Supervisor Abraham "Avi"
Elkayam allegedly for failing to perform his work chores
properly and for sleeping on the job. Inasmuch as the
General Counsel maintains that Respondent should have
assigned Johnson to work on the day shift on July 20
which would have constituted reinstatement to his
former job, and that its failure to do so was5 tantamount
to a discharge, I deem it unnecessary to consider the in-
cidents which led to his termination on that date in
reaching a decision herein.
Bert Liebman took the stand and related that he had
been hired by Respondent in March as the assistant ad-
ministrator of the Home. In this capacity, he supervised
the care and treatment accorded to the Home's residents.
Liebman recounted that he had worked in the health
care field since 1951 and had known a Clarence Morgan,
who was associated with Local 144, for 20 ,lears. He tes-
tified that, when Johnson was elected shop steward at
the Home on May 2, he had a conversation with John-
son during which the latter mentioned some complaints
which the employees had raised about the length of their
workweek, and Liebman replied that he was unable to
resolve the grievances. Liebman further recalled that,
prior to Johnson's layoff on May 10, Johnson inquired
whether Liebman knew a Clarence Morgan. Liebman
asked the reason for the inquiry, and Johnson replied
that he had received an authorization card from Local
144. As Johnson proceeded to leave, Liebman remarked,
"Send him [Clarence Morgan] my regards."
Liebman further testified that, during his employment
with Respondent, which ended in November, the health
care industry had experienced financial difficulties which
forced various facilities to cut back on their work com-
plements. He added that, at the time Johnson was laid
off on May 10, Respondent also trimmed four or five,
and possibly more, employees from its employment rolls,
and that this personnel action was taken in the context of
seniority. However, Liebman failed to name the affected
employees or otherwise substantiate by company records
that this was so.
Respondent's manager, Martin Rosenberg, testified
that he hired Joseph Johnson in January and that he was
aware that Johnson had been elected as the union shop
steward prior to his layoff on May 10. During his exami-
nation, Rosenberg remembered that, about a month after
Respondent's president, Mappa, had signed the contract
with the Union on December 27, 1976, employee Anna
Pilgrim informed him that Local 144 had been distribut-
ing authorization cards at the Home, but Johnson's name
was not mentioned in this connection. Rosenberg there-
upon telephoned Union President Perry to report this in-
telligence, and was assured by the latter that the rival
union could not cause any problems because a 3-year
contract exi ;:d between the parties. Rosenberg then re-
lated that, in May, Anna Pilgrim visited his office and re-
ported that she had heard that Local 144 was to become
their collective-bargaining representative. Rosenberg re-
marked that he knew nothing about this development
and asked Pilgrim for the source of her information. Pil-
grim answered that Joseph Johnson had offered her a
Local 144 designation to sign. Rosenberg inquired
whether she had done so, and Pilgrim replied in the neg-
ative. In view of Johnson's uncontroverted testimony
that he had received 20 cards from Local 144 which he
distributed for the first time to employees Pilgrim, Plum-
mer, and Doram during the lunchbreak on May 10, the
date of his layoff, I am convinced and find that Rosen-
berg engaged in this conversation with Pilgrim prior to
Johnson's layoff on that date. Moreover, Rosenberg con-
fessed that he had learned from Pilgrim that Johnson had
Local 144 authorization cards on his person at the Home
prior to May 10.
Rounding out Rosenberg's testimony in this area, he
denied that he had personally received any communica-
tion from the U.S. Department of Labor relative to
Johnson's complaint about the excessive workweeks to
which the chambermaids had been assigned or the failure
to pay them overtime. However, Rosenberg did not
deny Johnson's testimony that, on May 9, he gave the
letter which he received from the agency to Rosenberg
for duplication and that the manager retained a copy of
the document. Moreover, inasmuch as Respondent's ad-
ministrator, Hyman Jacobs, was not called as a witness in
this proceeding, Johnson's testimony is also undenied and
I find that, on the same day, Jacobs questioned Johnson
about the purport of the agency letter and, after consult-
ing with Rosenberg, informed Johnson that the layoff of
the affected individuals was sanctioned by the collective-
bargaining agreement.
Finally, Rosenberg insisted that at least four or five
other employees were furloughed at the same time as
Johnson because of economic conditions who possessed
greater seniority than he did. Rosenberg mentioned the
name of his daughter, Esther, who distributed medica-
tions at the Home, Gladys and Theresa, an apparent ref-
erence to Dorcy and Noel who worked as maids, and a
Laurie Dahan, none of whom performed the duties of a
SEAPORT MANOR, INC. 891
porter. Conspicuously, Rosenberg did not mention
Aubrey Surgeon, who had been hired in April to work
as a porter, some 4 months after Johnson had been em-
ployed.
On the basis of the foregoing, I have little hesitancy in
finding, as I do, that, prior to his layoff on May 10, Re-
spondent's officials gained ample knowledge that John-
son had distributed authorization cards on behalf of
Local 144 to its employees on that day, and also knew
that he had actively associated himself with that labor
organization in an attempt to obtain more effective repre-
sentation and benefits from that entity than the Union
was affording. Moreover, I am further convinced that,
immediately prior to his layoff, Respondent's administra-
tor, Jacobs, and Manager Rosenberg were fully apprised
that Johnson, as the Home shop steward, had brought
the U.S. Department of Labor to bear upon his com-
plaints about the hours of work to which it had subject-
ed its employees and the lack of overtime pay.
When this knowledge, together with Respondent's in-
quisitive concern over the inroad's Local 144 had made
among its work complement, is viewed against the back-
drop of Respondent's disregard of the contractual senior-
ity clause in selecting Johnson for layoff over the less
senior Surgeon, coupled with the subsequent employ-
ment of Ralph Lopez in preference to recalling Johnson
who had gained high marks both for his work perfor-
mance and deportment, a formidable case of statutory
discrimination emerges. However, an absolute definition
of such discrimination is presented if the testimony of
Marvin Wimbush, a confessed prevaricator, is to be be-
lieved in its pertinent aspects.
Wimbush testified that he had worked as Union Presi-
dent Perry's administrative assistant for approximately 4
years prior to his separation from that organization on
August 3. As part of his duties, Wimbush dealt with
grievances arising under contracts which the Union had
negotiated with employers and had handled the griev-
ances of employee Shirley Johnson when she was first
discharged by Respondent on March 29.
Called as a witness on behalf of the General Counsel,
Wimbush testified that, immediately prior to the layoff of
Joseph Johnson on May 10, Perry received a telephone
call from Respondent's administrator, Jacobs, which
Wimbush overheard on an extension phone and in which
Jacobs reported that Johnson had been soliciting Respon-
dent's employees to sign authorization cards on behalf of
Local 144. Perry thereupon told his assistant that he had
heard from Jacobs that Johnson had been discovered
campaigning for a rival union, and Wimbush expressed
his disbelief. Wimbush placed a call to the Home and
contacted Johnson. During their conversation, Wimbush
inquired whether the shop steward had been passing out
authorization cards for Local 144. Johnson replied that
organizers for that labor organization had been outside
the home and that he had spoken to one of them, but
Johnson declined to reveal wheher he had actually cam-
paigned for that entity. According to Wimbush, he re-
layed this intelligence to his superior, Perry. Perry im-
mediately dialed Jacobs and instruced the latter to
"Blow him away," by which Perry meant to discharge
Johnson.
As heretofore chronicled, Respondent's administrator,
Jacobs, was not called as a witness in this proceeding by
Respondent and no reason was advanced for its failure to
do so. Consequently, Wimbush's testimony stands unden-
ied from that quarter that, on May 10, Jacobs telephoned
Perry to report that Johnson had been distributing desig-
nation cards on behalf of Local 144 to Respondent's em-
ployees. Perry, who represented the Union's interests in
this litigation, took the witness stand on three occasions
in an effort to establish that Wimbush was sworn liar.
Curiously, Perry failed to controvert Wimbush's testimo-
nial assertions as to the conversations which transpired
on May 10 between Jacobs and Perry leading to John-
son's discharge. Standing in isolation, Wimbush's testimo-
ny on this score is undenied and, absent any other con-
siderations, I would have little difficulty in giving cre-
dence to it. But that testimony cannot be viewed in isola-
tion and must be weighed against other sworn utterances
made by him which were spread upon this record.
During the investigation of the charges herein, Wim-
bush gave two affidavits to the Board agent who con-
ducted the investigation. The first was rendered on June
21 in connection with the charges which Johnson had
filed with the Board on May 11 and which led to the
complaint which issued on June 30. In that affidavit,
Wimbush stated that "I never made a phone call to
Joseph Johnson and [the Home] and asked him if he was
passing around a petition." Wimbush further stated that
"I never received any phone call or message from
anyone in [the Home's] management, from any [Home]
employee, or from anyone, saying that Joseph Johnson
was passing around a petition, passing our cards, or
union buttons, or was in anyway involved with Local
144. I was never told this in a face to face conversation
or by letter either."
On August 3, following the execution of the first affi-
davit, Wimbush left the Union's employ. At the outset of
his testimony on this score, he maintained that he had
quit his employment because he objected to the manner
in which Perry was "systematically exploiting minorities,
not living up to his commitments, his arrogant attitude,
his racial overtones, his bigotry ... " Wimbush then
confessed that he had been discharged by Perry on
August 3 for failing to carry out his superior's instruc-
tions during an organizational campaign at a health care
facility in Connecticut. When questioned as to whether
his discharge was related to an accusation by Perry that
he had shaken down an employer for $500, Wimbush
denied that he had ever taken any tainted money from an
employer although he acknowledged that this accusation
had been made against him in a New York State labor
proceeding as a reason for his discharge but was left un-
resolved by the trier of facts in that litigation.
On September 18, Wimbush gave another sworn affi-
davit to the Board agent relative to Joseph's discharge.
In this statement, Wimbush swore that "This statement is
the truth. About a month or two ago I made a statement
to [the] Board agent in which I purposely evaded ques-
tions, after being instructed by William Perry to go to
the Labor Board and make a positive statement for
Local 6." Wimbush went on to relate to the Board agent
approximately what he testified to in this proceeding
SEAPORT MANOR, INC. 891
892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
concerning the circumstances surrounding Johnnson's dis-
charge. According to Wimbush, he was instructed by
Perry to tailor the truth in his first affidavit "if I wanted
to keep my job."9
Despite Wimbush's confession of perjury in the giving
of a sworn affidavit to the Board agent, and the false-
hoods which he uttered regarding his handwriting speci-
mens, I am not persuaded that the totality of his testimo-
ny must be rejected as untrustworthy in view of the in-
herent plausibility which portions of that testimony gains
from other record evidence. As Judge Learned Hand ob-
served many years ago, "It is no reason for refusing to
accept everything that a witness says, because you do
not believe all of it; nothing is more common in all kinds
of judicial decisions than to believe some and not all."10
Thus, Wimbush's testimony that Respondent's adminis-
trator, Jacobs, telephoned Union President Perry just
prior to Johnson's discharge on May 10 to report that
Johnson had been soliciting authorization cards for Local
144 and that Perry instructed Jacobs to "Blow [Johnson]
away" stands undenied on this record despite the fact
that Perry had ample opportunity to rebut this assertion
and Respondent, unaccountably, failed to summon
Jacobs to the stand to do so. Moreover, on the very day
on which Johnson procured those authorization cards,
met with housekeeper Florence Doram and employees
Anna Pilgrim and Esther Plummer to discuss the advan-
tages of joining Local 144, and distributed Local 144
designations to them, Respondent's manager, Rosenberg,
learned from Pilgrim that Local 144 had undertaken an
organizational campaign at the Home and, after question-
ing by Rosenberg, discovered that Johnson was the sole
activist in this endeavor. Immediately upon receiving this
intelligence, Johnson was summoned to Assistant Admin-
istrator Liebman's office where he received a telephone
call from Wimbush. Curiously and unaccountably, Anna
Pilgrim was present in the office at the time. Wirnbush
questioned Johnson as to whether he had been circulat-
ing any petitions, and obvious reference to his engage-
ment in pro-Local 144 activities. Shortly thereafter,
Johnson was called into Liebman's office and informed
that he had been laid off for economic reasons, despite
the fact that the selection did violence to the seniority
clause in the contract with the Union. Finally, as John-
son left Liebman's office, the latter's parting shot was
"tell Clarence I said hello," a reference to an official of
Local 144 about whom Johnson first learned from Lieb-
man, himself. '
9 Wimbush's bouts with the truth continued in his testimony regarding
events leading to the discharge of Johnson on August 5. During his stint
on the stand, Wimbush denied that he had written certain documents or
had received others dealing with warning notices which Johnson had re-
ceived. These denials proved to be patently false, as evidenced by the tes-
timony of a qualified handwriting expert who was summoned to testify in
this proceeding.
o1 See N.L.R.B. v. Universal Camera Corp., 179 F.2d 749, 754 (2d Cir.
1950).
" I do not credit Liebman's testimony that, in his conversation with
Johnson on May 10, Johnson revealed that he knew Clarence Morgan. In
regard to Liebman's credibility in general, employee Aubrey Surgeon ts-
tified without contradiction that Liebman had urged Surgeon to falsely
sign a statement that Johnson was not properly performing his work
chores after Johnson was rehired by Respondent.
In sum, I am convinced and find that Respondent laid
off Joseph Jolhnson on May 10 to punish him for having
joined, assisted, and supported Local 144 in opposition to
the Union, and for having complained to the U.S. Labor
Department about Respondent's wage-payment practices.
By so doing, I conclude that Respondent violated Sec-
tion 8(a)(3) and (1) of the Act. t 2 I am also persuaded
that, when Respondent recalled Johnson on July 20 as a
result of the unfair labor practice charges which he had
filed against it with the Board, it assigned him to work
on the night rather than the day shift on which he had
previously toiled, and Aubrey Surgeon, a less senior em-
ployee, was transferred to day work. In my opinion, had
Respondent returned Johnson to the day shift as it was
required to do under the existing labor agreement, John-
son, who was highly rated by Respondent for both his
work performance and his department, would have
never experienced the difficulties which assertedly led to
his discharge on August 5. Accordingly, I conclude that,
by reinstating Johnson to a position which was not sub-
stantially equivalent to his former job, Respondent con-
tinued to discriminate against this employee in violation
of Section 8(a)(3) of the Act. 13
Shirley Johnson was hired by Respondent on January
31 as a chambermaid but, within a day, was assigned to
the dining room to work as a waitress. In this capacity,
she served residents, and cleaned and set up the tables
under the supervision of Valerie Rosenberg, Respondent
manager's wife.
Johnson testified that, about a week following her em-
ployment, she spoke with Manager Rosenberg who in-
formed her that Respondent ran a union shop and that
she would be required to join the incumbent Union, al-
though Rosenberg failed to identify it by name. Johnson
replied that she would await a visit to the Home by a
union representative to question him about employee
benefits before she made up her mind. On two occasions
in February, Rosenberg repeated that union membership
was a condition of employment at the Home and John-
son again insisted that she first desired to speak to the
union agent about the benefits which would flow from
such an alliance. On the second of these occasions,
Rosenberg offered to pay the dues for her but she turned
down the offer. According to Johnson, she was not ad-
vised at the time of her employment that a labor agree-
ment was in effect which contained a union-security
clause.
Johnson went on to testify that, in the middle of
March, Florence Doram, who had been designated as
the union shop steward by Manager Rosenberg, ap-
proached her and asked Johnson to append her signature
to a blank sheet of paper. When Johnson inquired into
the purpose for this request, Doram replied that she had
received a call from a union agent who instructed her to
procure the signatures of all employees and transmit
them to the Union. Johnson refused to sign the paper.
Events abided until March 24 when Union Organizer
Ralph Simmons visited the Home and spoke to the em-
'2 The Massachussetts Women's Hospital, Parker Hill Medical Center,
227 NLRB 1289 (1977); Advance Carbon Products. Inc., 198 NLRB 741
(1972).
a" See Esgro, Inc., supra at 286, 296.
SEAPORT MANOR, INC. 893
ployees. During his visit, Johnson questioned Simmons
about the medical benefits which would be gained from
union membership. Simmons responded that no benefits
of this type would be available until January 1, 1978, be-
cause the Union needed time to build up a welfare fund
in order to provide these emoluments. A sharp exchange
ensued between Johnson and Simmons over this subject
and Simmons angrily left the room. He returned shortly
thereafter with Rosenberg, and Rosenberg told Johnson
that, unless she joined the Union, she could no longer
work at the Home.
On March 25, a payday, Johnson received her pay-
check and noticed that Respondent had deducted the
monthly union dues from her earnings. Johnson's testi-
mony is undenied and I find that, at no time prior there-
to or thereafter, had she signed any document authoriz-
ing Respondent to do so.
On March 28, Johnson visited the Union's offices
where she spoke ot Union President Perry and ques-
tioned him about the medical benefits which were con-
tractually available. Perry informed her that coverage
was available under a Prudential Life Insurance Compa-
ny policy and handed her a copy of the plan.
On March 29, Johnson reported for work and noticed
that her timecard was missing from its rack. Johnson im-
mediately visited Manager Rosenberg's office where she
was told by him that she had been laid off for lack of
work. Johnson testified that, when she asked for the
reason for her layoff, Rosenberg replied that she had "a
big mouth" and that she "talked too much." Johnson
thereupon requested the manager to provide her with a
layoff slip so that she would qualify for unemployment
compensation. After preparing the document, Rosenberg
offered to reimburse her for union dues which he had
deducted from her paycheck, but Johnson refused to
accept the payment. On March 30, Johnson called the
union hall where they discussed her termination. At the
conclusion of their meeting, Perry promised to obtain
her reinstatement.
On or about April 1, Johnson accompained Union
Representative Wimbush to the Home and was recalled
to duty. During the month of April, Johnson had a series
of run-ins with management concerning the scheduling
of her days off and the time and manner in which she
received her pay. In consequence of these disagreements,
Johnson informed Respondent's officer, Klein, that Man-
ager Rosenberg had been harassing her and that she in-
tended to seek some governmental assistance to correct
her complaints.
On May 2, Johnson found her way to the New York
State Division of Human Rights and filed charges against
Respondent alleging that it was discriminating against
her as a "Black American" in favor of non-American
Blacks and other ethnics. On the same day, she visited
the State Department of Labor where she lodged a com-
plaint that Respondent had failed to pay her overtime.
On May 4, Johnson was again furloughed. When she
questioned Respondent's administrator, Jacobs, about this
personnel action, Jacobs remarked that it was unneces-
sary to give any reason for her layoff because she had
not worked for Respondent for more than 90 days as re-
quired under the probationary-employee provision in the
labor compact with the Union. On May 5, she again en-
listed the aid of Union Agent Wimbush and they con-
vinced Jacobs that she was no longer a probationary em-
ployee and she was immediately reinstated. When John-
son returned to work, Respondent's assistant administra-
tor, Liebman, mentioned that he had learned that she
had filed a complaint with the Division of Human Rights
against the Home and Manager Rosenberg. Liebman at-
tempted to placate Johnson and brought Rosenberg into
the room where the manager and Johnson shook hands
and the matter was put at rest.
Johnson further testified that, sometime in July, her
husband called at the Board's Regional Office to learn
how to obtain a union-deauthorization election in order
to eliminate the obligation of Respondent's employees to
join the Union and pay dues to it.' 4 Upon receipt of this
information, Johnson drafted a petition which recited:
National Labor Relations Board
16 Court Street
Brooklyn, New York
We the Undersign Employees of Seaport Manor
subject to an agreement of our Employer and
Local 6 which by terms requires Union member-
ship as a condition of employment thereby re-
quest the National Labor Relations Board to con-
duct a Union Shop De-Authorzation Election.
She then solicited a few employees to sign the document
but they demurred lest Respondent's officials learn about
It.
Events abided until August 18, when Johnson was ap-
proached by Jean Merolus in the lobby of the Home.
Holding some petitions in his hand bearing signatures of
employees, Merolus announced that he and the employ-
ees at the facility had decided to cease paying dues to
the Union because of the lack of medical coverage and
had signed petitions to that effect which Merolus
planned to present to Respondent and the Union. Mero-
lus invited Johnson to sign the paper and join in
common cause with them. Johnson replied that Merolus
was pursuing his objective in the wrong fashion by solic-
iting employees in such an open and notorious manner,
and counseled him to convey the signed documents to
the Board's Regional Office rather than to Respondent
and the Union. Johnson then advised Merolus that she
had already drafted a similar petition which she planned
to submit to that agency to obtain a deauthorization elec-
tion, and promised to bring the petition to the Home so
that Merolus could solicit the employees to sign it.
Before their discussion ended, Johnson signed Merolus'
petition as a friendly gesture.
Merolus testimonially explained that his concern over
medical coverage stemmed from the happenstance that
his wife had become pregnant and he was in need of in-
14 These deauthorization elections, commonly referred to as UD elec-
tions, are authorized under Sec.
9(e)(1) of the Act which provides that:
Upon the filing with the Board, by 30 percentum or more of the
employees in a bargaining unit covered by an agreement between
their employer and a labor organization made pursuant to section
8(a)(3), of a petition alleging they desire that such authorization be
rescinded, the Board shall take a ballot of the employees in such unit
and certify the results.
SEAPORT MANOR, NC. _ .
894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
surance to cover her hospitalization when she gave birth.
In July, he questioned Union Representative Wimbush
about the matter and apprised the latter that, if no mater-
nity benefits were made available under the existing col-
lective-bargaining agreement, he would refuse to pay his
dues to that organization. After receiving an equivocal
answer, Merolus put the same question to Respondent's
manager, Rosenberg, and learned that only limited cov-
erage was afforded and this was deferred until January
1978. Consequently, Merolus circulated the petition
among the employees which he displayed to Johnson on
August 18.
On the afternoon of August 18, Merolus asked John-
son for her copy of a Blue Cross-Blue Shield booklet
which described the medical coverage to which she had
privately subscribed. After receiving the brochure, Mer-
olus showed it to Respondent's administrator, Jacobs.
The following day, Merlous informed Johnson that Man-
ager Rosenberg had agreed to provide Blue Cross-Blue
Shield coverage to the employees at no extra cost. Short-
ly after August 19, applications for membership in this
plan were made available for enrollment on a desk in the
Home, one of which Merolus signed. In this connection,
housekeeper Florence Doram related on the stand that,
in August, Merolus' wife was due to give birth and Mer-
olus was concerned about the medical coverage which
was available under the collective-bargaining agreement.
Merolus telephoned Union President Perry only to learn
that no such insurance was in effect. At a gathering of
several employees, Merolus informed them of this cir-
cumstance and asked the employees if they would sign a
petition to oust the Union as their collective agent. All in
the group executed the document. A few days later,
Merolus appeared at the Home with a supply of Blue
Cross-Blue Shield forms which he distributed to the em-
ployees, reporting that he had received them from Re-
spondent's manager, Rosenberg. Doram testified that she
signed one of these forms on that day but never there-
after heard anything about coverage from this insurance
carrier. Instead, she was told shortly thereafter that all
employees would receive their coverage under a policy
with the Prudential Life Insurance Company, as pro-
vided under their contract, which was to take effect in
early 1978.
Union President Perry testified that, during this
period, he had received numerous complaints from Re-
spondent's employees about the lack of medical cover-
age. Perry noted that, because the Home was a new fa-
cility when the Union obtained its labor agreement and
had not achieved financial stability, the contractual pro-
vision for welfare fund payments by Respondent was
programmed to commence in January 1978. As a result
of the complaints, Perry contacted Rosenberg and in-
quired whether implementation of an insurance plan
could be accelerated. According to Perry, Rosenberg
protested that he could not afford to provide medical
benefits at this juncture, remarked that Respondent was
experiencing more problems at the Home with the
advent of the Union, and announced that he would make
every effort to rid the Home of union presence. Rosen-
berg added that the employees were circulating a peti-
tion designed to remove the Union as their bargaining
representative, and that he would encourage them in this
endeavor. Despite Rosenberg's asserted animosity, Perry
testified that he spoke to Respondent's administrator,
Jacobs, a few days later and that, on August 24, the par-
ties entered into a written agreement pursuant to which
Respondent covenanted to make contributions to the
welfare fund effective October I so that medical cover-
age could be available to the unit employees.
On August 22, Johnson brought her deauthorization
petition to the Home and offered it to Merolus for signa-
ture as she had previously promised. After Merolus
signed, she persuaded him to circulate it among the
chambermaids and Merolus did so. On September 2,
Merolus returned the document to Johnson which bore
the signatures of Florence Doram and six other maids.
Johnson thereupon signed the petition and obtained the
signatures of two other employees. According to John-
son, all of the employees knew that she was the sponsor
of the union-security deauthorization movement because
Merolus told them that she planned to submit the peti-
tion to the Board.
Armed with the signed document, Johnson proceeded
to the Board's Regional Office on September 7 and filed
a deauthorization petition in Case 29-UD-131. This in-
strument, bearing Johnson's signature, was served on Re-
spondent by the Regional Director on September 12.
As she prepared to go to work on the morning of Sep-
tember 19, Johnson slipped and injured her shoulder and
was taken to the hospital for treatment. When she ar-
rived, she telephoned Respondent's manager, Rosenberg,
to report the accident and to notify him that she might
not be able to work that day. According to Johnson's
uncontroverted testimony, Rosenberg inquired "who
. . . are you suing now." Johnson retorted that she was
not suing anyone and abruptly hung up. When Johnson
came to work on September 20, she was handed a writ-
ten warning by the secretary dated September 19 which
read:
Your excessive absenteeism is causing an undue
burden on your fellow workers and the patients you
care for.
Johnson testified without contradiction and I find that
she had absented herself from work only four times
during the span of her employment from January 31 to
September 19. Her testimony is also undenied'and I find
that employees Julia Bras and Bernadette Joseph had
been absent from duty more often than Johnson. More-
over, Manager Rosenberg testified that he could not
recall any warnings given to other employees concerning
absenteeism.
After receiving the warning slip, Johnson proceeded
to Administrator Jacobs' office to find out the purport of
the notice. When she arrived, she encountered Valerie
Rosenberg, the kitchen supervisor and Manager Rosen-
berg informed Johnson that the latter had been absent
from work almost every week either filing complaints
against Respondent or going to court, and declared that
Johnson was the only employee who had done so.
On October 2, Johnson received a telegram which re-
cited that she had been laid off, effective September 30,
SEAPORT MANOR, INC. 895
because of severe financial conditions which existed at
the Home. In addition, other employees, some more
senior and some more junior to Johnson, were let go for
the same expressed reason. However, Julia Bras and Ho-
melie Gregoire, employees who had less seniority than
Johnson, were retained.
Johnson returned to the Home on October 4 and
spoke to Assistant Administrator Liebman about her
layoff. She testified that Liebman had assured her that
she and the other employees in layoff status would be re-
called in 2 weeks. On the same day, she filed a grievance
with the Union regarding her status. During a conversa-
tion with Union President Perry on October 5 regarding
the grievance, Johnson testified that she complained that
Respondent had retained employees Bras and Gregoire
who had less seniority. Perry suggested that he could ar-
range to have Johnson replace the dishwashing employee
immediately, but Johnson decided to eschew this assign-
ment and await her recall to her former position in 2
weeks based on Liebman's assurance.
Johnson further testified that, on October 11, she re-
turned to the Home for a visit and noticed that Respon-
dent was utilizing the services of another lady in the
dining room who had never worked there before. A few
weeks later, Johnson telephoned Perry on two occasions
to inquire about her return to work and, on each occa-
sion, he promised to get back to her but never did. Re-
spondent's payroll records establish and I find that,
during the period from October 5 to December 26, the
Home hired approximately 10 new employees, 2 of
whom worked in the dining room. Rounding out John-
son's testimony, she related without contradiction and I
find that she attended a conference at the office of the
Division of Human Rights in December which was
called in an attempt to resolve the charges which she
had filed with that agency against the Home and Rosen-
berg. Rosenberg was at the session and, during the dis-
cussions which ensued, he informed an official of that
agency that he had intended to recall Johnson to work.
In his testimony, Manager Rosenberg acknowledged
that he had received a copy of the complaint which
Johnson had filed with the Division of Human Rights in
May, and he also was aware that she had filed charges
with the State Department of Labor in the same month.
Initially, Rosenberg stated that he had received a visit by
an inspector for the Labor Department in September but
he claimed that this visit had no relation to Johnson's
charges. Rosenberg then claimed that the inspector's call
actually took place in January or February 1978, and
was routine in nature. According to Rosenberg, the in-
spector discovered bookkeeping errors in the payment of
overtime to employees. However, he did not attribute
the inspection to any complaint which Johnson had filed
with that agency.
Turning to Johnson's layoff on September 30, Rosen-
berg recounted that a cutback in personnel was dictated
as a result of the financial distress which adult homes in
the area had suffered. At this time, Respondent was
forced to furlough six employees, including Shirley
Johnson. After the reduction in force, Respondent decid-
ed to consolidate its work force by which was meant
that the remaining employees were transferred to jobs
other than those which they normally performed. With
respect to Johnson's work as a waitress, Rosenberg
pointed out that the dishwasher, Homelie Gregoire, was
given the additional assignment of working in the dining
room.
Rosenberg testimonially recalled that, shortly after he
furloughed Johnson, he received a call from Perry who
reported that Johnson had registered a complaint that
employees with less seniority than she possessed had
been retained by Respondent, and Perry suggested that
Respondent recall her. According to Rosenberg, he con-
sented to reinstate Johnson immediately at no cut in pay
if she replaced Gregoire and assumed his duties. Rosen-
berg added that, when Respondent obtained more resi-
dents and funds for the Home, he would transfer John-
son to her regular assignment as a waitress. Perry agreed
to submit this proposal to Johnson.
Sometime thereafter, Perry telephoned Rosenberg
about the Johnson matter. Rosenberg testified that, in
their conversation, Perry reported that he had conveyed
Rosenberg's offer to Johnson who flatly refused to per-
form dishwashing chores for "these fucking Jews,"
adding that "they didn't kill enough of all of the Jews
.... " Because Rosenberg had been an inmate of a con-
centration camp for 4 years during Hilter's interlude in
history, and had lost all of his family in the Holocaust,
Rosenberg became upset upon receiving this intelligence
from Perry and exclaimed that "I will never put her
back in my place."
When called to the stand, Union President Perry con-
firmed that he called Rosenberg in early October to ef-
fectuate Johnson's return to work. Thereafter, he con-
tacted Johnson and relayed Rosenberg's offer to return
her to work as a dishwasher until her regular job in the
dining room became available. Perry testified that John-
son rejected the offer because she refused to wash dishes
and clean floors for Jews, and stated that she would col-
lect unemployment compensation until her regular job
became available.
Perry gave a sworn affidavit to a Board agent during
the investigation of this proceeding. While he attributed
the utterance of anti-Semitic remarks to Virginia Barker
when she called him about her previous discharge by
Respondent, Perry made absolutely no mention in his af-
fidavit of telling Rosenberg that Johnson had cast similar
aspersions upon Rosenberg when she was offered the
dishwashing job as a prelude to her recall to work in the
dining room. In her testimony, Johnson flatly denied that
the subject of Jews had arisen at any time in her conver-
sation with Perry.
The complaint alleges that Respondent violated Sec-
tion 8(a)(1), (3), and (4) of the Act by laying off Shirley
Johnson on September 30 and failing to recall her there-
after. The predicates for the alleged violation of Section
8(a)(3) are that she was chosen for layoff because she
had assisted Local 144 in its organizational campaign,
and had engaged in concerted, protected activities in op-
posing the Union. A careful review of the record fails to
reveal any evidence that Johnson had ever espoused the
Union's cause, as she herself admitted on the stand, or
that she had opposed the Union in any manner other
than taking the steps which led to the filing of the
SEAPORT MANOR, INC 95
896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
deauthorization petition. I shall therefore dismiss the
complaint insofar as it alleges that ResponderLt violated
Section 8(a)(3) of the Act on these grounds. The com-
plaint also charges that Respondent offended the provi-
sions of Section 8(a)(4) and (1) of the Act by furloughing
Johnson and thereafter refusing to recall her because she
had filed a petition with the Board to deauthorize the
union-security provision in the existing contract between
the Union and Respondent, and because she had lodged
a complaint with the State Division of Human Re-
sources. As to these counts, I am satisfied that the Gen-
eral Counsel had met his burden of proof.
As heretofore reported, Johnson filed her complaint
with the state agency on May 2 which was still pending
at the time of her layoff on September 30. In addition,
Johnson had solicited the employees to sign the deauth-
orization petition on August 22 and it became' common
knowledge among the employees at the Home that John-
son had planned to take it to the Board as she did on
September 7. On September 12, the formal deauthoriza-
tion petition, with a covering explanatory letter, was
served on Respondent by the Board with Johnson's sig-
nature clearly appearing thereon. That Respondent's offi-
cials were patently aware of and discomfited by this ac-
tivity is made manifest by Rosenberg's remark to her
when she telephoned him from the hospital on Septem-
ber 19 to report her shoulder injury and was asked "who
. . .are you suing now." Respondent's displeasure was
further evidenced by the warning notice which she re-
ceived on September 20 for her absence on the previous
day which was concededly the first occasion in over 2
years of the Home's existence on which Rosenberg had
ever issued such a caution to an employee. Inasmuch as
Bras and Joseph had absented themselves more often
than Johnson without receiving warning notices, Re-
spondent's motive in disciplining her becomes more sus-
pect, especially when viewed against Mrs. Rosenberg's
accusations on September 20 that Johnson was the only
employee who was constantly filing legal complaints
against the Home.
While Respondent may have been pressed by econom-
ic necessity to trim its staff on September 30, I am not
convinced that its action in laying off Shirley Johnson on
that date was so motivated. The record discloses that
Respondent's contract with the Union mandated that lay-
offs and recalls were to be conducted under the stan-
dards of seniority, and even Assistant Administrator
Liebman and Night Supervisor Avi Elkayam acknowl-
edged that this format was strictly followed. Yet, when
the layoffs took place on September 30, Johnson was
separated from Respondent's employment rolls while
two less senior employees, Julia Bras and Homelie Gre-
goire, were retained.
With respect to Respondent's failure to recall Johnson,
the record discloses and I have found that, commencing
October 5 until the end of December, Respondent en-
gaged 10 employees to work at the Home, 2 of whom
were assigned to dining room duties. I find no persuasive
merit in Respondent's assertion that it declined to recall
Johnson in early October because she had painfully an-
gered Manager Rosenberg by her verbal manifestations
of anti-Semitism. Rosenberg testimonially claimed that
this anger developed when Perry telephonically reported
Johnson's comments to him in connection with Rosen-
berg's offer to recall her to perform dishwashing chores.
Yet Perry, the supposed conduit of this information, sig-
nificantly failed to mention to the Board agent who in-
vestigated this proceeding, that Johnson had in fact in-
dulged in this distasteful conduct, although Perry did as-
sociate Virginia Barker with a similar diatribe. More-
over, Rosenberg's expressed determination never to
rehire Johnson because of her offensive remarks is belied
by his statement to the State Division of Human Re-
sources at a December conference that he had no objec-
tion to reemploying her. Furthermore, if Johnson had in
fact turned down Rosenberg's offer of kitchen work
pending recall to her former position as a waitress, this
circumstance should more appropriately be considered in
a compliance stage of this litigation rather than in this
proceeding.
In sum, I find that Respondent laid off Shirley John-
son on September 30 because she had registered a com-
plaint with the Division of Human Resources and be-
cause she had filed a deauthorization petition with the
Board. By so doing, I conclude that Respondent thereby
violated Section 8(a)(1)' 5 and (4)16 of the Act. I also
find that the warning notice which Respondent issued to
Johnson on September 20 was generated by its opposi-
tion to her known attempts to seek the assistance of state
and Federal agencies in order to right an asserted wrong.
By engaging in this conduct, I conclude that Respondent
independently violated Section 8(a)(1) of the statute.
I turn next to a consideration of the General Counsel's
contention that Respondent violated Section 8(a)(2) of
the Act by deducting union dues from its employees'
wages without first obtaining their authorization to make
such deductions, and by paying moneys in the nature of
dues to the Union on behalf of its employees without
either deducting these sums from the wages of the em-
ployees or otherwise collecting those moneys from au-
thorized payroll deductions for transmission to that labor
organization.
The facts are not in essential dispute and I find that,
commencing in January, Respondent regularly deducted
union dues from its employees' paychecks and remitted
them to the Union. The record specifically discloses that,
at all times material herein, these deductions were made
from the wages of Shirley Johnson, Florence Doram,
Virginia Barker, Bernadette Joseph, and Jean Merolus
without Respondent having received any authorization,
written or otherwise, from these employees to do so. It
also appears that these authorized deductions were made
for all other employees until April 27, when Union
Agent Wimbush visited the Home and received a written
authorization for the deduction of dues from Gladys
Dorcy, Julia Bras, Theresa Noel, Keith McClendon,
Mark Gofman, Nissage Pierre, Joseph Johnson, Esther
Plummer, Ann Pilgrim, Mavis Martin, and Lea Seri.
'a See Advance Carbon Products, Inc., 198 NLRB 741, 742, 747 (1972);
The Massachusetts Women's Hospital, d/b/a Parker Hill Medical Center,
227 NLRB 1289, 1292 (1977).
'6 Aristocrat Inns of America. Inc., 146 NLRB 1599 (1964).
17 Id. at 1600.
SEAPORT MANOR, INC. 897
Respondent's manager, Rosenberg, revealed on the
stand that he made it a practice of paying the collected
dues of employees out of Respondent's coffers on checks
which he remitted to the Union. In this connection,
Rosenberg disclosed that he had uniformly paid the due's
obligations of employees Larisa Grovenman and August
Romano ever since they were employed from Respon-
dent's own pocketbook.
As both the direct payment by Respondent of union
dues without authorized deduction and the unauthorized
deduction of such levies constitute illegal assistance by
an employer to a labor organization, I conclude that, by
engaging in the foregoing conduct, Respondent violated
Section 8(a)(2) of the Act.' 8
While not altogether a paragon of logical consistency,
the complaint further alleges that Respondent violated
Section 8(a)(5) of the Act by encouraging its employees
to refrain from paying dues to the Union, granting them
health care benefits to induce them to refrain from be-
coming or remaining members of or assisting the Union,
and inducing them to abandon their membership.
As heretofore chronicled, the labor compact between
the Union and Respondent provided for medical cover-
age to be underwritten by the Prudential Life Insurance
Company but was not to become effective until January
1978. From the inception of her employment, Shirley
Johnson repeatedly questioned representatives of the
Union and Respondent about the contractual medical in-
surance benefits but received no positive answer regard-
ing that coverage. In July, Johnson decided to draft a
deauthorization petition to obtain a Board election which
would remove the obligation of union membership and
the payment of union dues. During the same month, Jean
Merolus made similar inquiries about hospitalization cov-
erage and received the same response from the Union
and Respondent. This prompted him to draft a petition
similar to Johnson's which he circulated among the em-
ployees at the Home for signature. So far as this record
stands, there is absolutely no evidence which even re-
motely suggests that Rosenberg or any other official of
Respondent instigated, encouraged, supported, or was
aware of Merolus' activity in this regard.'9 On August
18, Johnson accosted Merolus in the Home and a discus-
sion ensued concerning their respective petitions, during
which Johnson persuaded Merolus to defer to her pro-
gram which included submitting her document to the
Board. When Merolus agreed to do so, Johnson prof-
fered him a copy of her Blue Cross-Blue Shield booklet
which he thereafter presented to Respondent's manager,
Rosenberg. On the following day, Rosenberg provided
the enrollment forms for this medical coverage, which
Merolus and Doram signed. Despite their enrollment in
this program, neither Merolus, Doram, nor any other
employee testified that they had ever actually received
any confirmation from that carrier that they were eligi-
ble for coverage, or ever received any benefits there-
from. Indeed, within a week, Union President Perry
managed to persuade Respondent to accelerate its medi-
' See Howard Creations. Inc., 212 NLRB 179, 184 (1974).
19 I, therefore, do not credit PerrN's testimony that he learned from
Rosenberg that the employees had circulated a petition to oust the Union
as their bargaining agent
cal coverage under the contract by making payments to
the welfare fund beginning on October 1, rather than
January 1, 1978, which provided benefits under a Pru-
dential policy.
To support his contention that Respondent encouraged
its employees to defect from union membership, the Gen-
eral Counsel claims that Jean Merolus was a supervisor
of Respondent within the purview of Section 2(11) of the
Act whose efforts in circulating the deauthorization peti-
tion should be attributable to Respondent. I am not con-
vinced that the record supports this contention.
Merolus testified that his entire workday was devoted
to performing the duties of a porter, maintenance me-
chanic, and an aide. Because of his length of service and
experience, he was called upon to explain work proce-
dures to new employees which were routine in nature.
Merolus, who works the same number of hours as the
other employees, possesses no authority to hire, dis-
charge, or discipline employees, nor can he effectively
recommend such personnel action. Accordingly, I find
that Merolus is not a statutory supervisor whose antiun-
ion efforts were binding on his employer. Moreover,
even assuming, arguendo, that Merolus did possess super-
visory status, I am far from persuaded that these activi-
ties in soliciting employees to sign a deauthorization peti-
tion in any manner bore the stamp of Respondent's in-
citement, encouragement, or approval.
In short, I conclude that Respondent did not violate
Section 8(a)(5) of the Act by any of the activities alleged
in the complaint. I shall therefore dismiss this aspect of
the General Counsel's pleadings.
At the hearing, the General Counsel amended his com-
plaint to add the allegation that, on April 27, 1978, Re-
spondent caused a health care facility styled as South
Shore Manor to discharge Aubrey Surgeon because he
gave testimony on April 14, 1978, in this proceeding, in
violation of Section 8(a)(4) of the Act. I find this allega-
tion to be totally lacking in merit.
As heretofore indicated, Surgeon was hired as a porter
at the Home in April. He was laid off on October 1. A
few months later, Abraham "Avil" Elkayam, Respon-
dent's night supervisor, was instrumental in obtaining
employment for Surgeon on the night shift at South
Shore Manor. This facility is owned and operated by
Baruch Mappa, Respondent's president, but has no ap-
parent operational nexus with the Home.
The record establishes and I find that, prior to Sur-
geon's employment at South Shore Manor, a night porter
named Victor who regularly worked there became ill
and was granted a leave of absence. Avi persuaded
Mappa to hire Surgeon and the latter was thereupon em-
ployed to take Victor's place.
On April 14, 1978, Surgeon was called as a witness in
this proceeding by the General Counsel. During his ex-
amination, Surgeon was not asked for and therefore gave
no testimony regarding any incidents which took place
between Avi and Johnson after the latter's recall to work
at the Home. On the evening of April 26, 1978, Surgeon
received a telephone call from Avi who requested that
Surgeon come to the hearing on the morning of April
27, 1978, and give truthful testimony concerning John-
SEAPORT MANOR, INC.
898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
son's conduct toward Avi after his recall to work. Sur-
geon readily consented to do so.
At 6:45 a.m. on April 27, 1978, Surgeon received a call
at work from South Shore's owner, Mappa, during
which Mappa informed him that the regular night porter
had recovered from his illness and would return to re-
claim his job. Mappa instructed Surgeon to return to the
facility on May I when Mappa would attempt to find
other employment for him. When Surgeon appeared at
the hearing on April 27, he told Avi of Mappa's call and
of his belief that he had been discharged that morning.
Avi expressed shock on receiving this report, and imme-
diately telephoned Mappa to question him about the
matter. Mappa advised Avi that Surgeon was mistaken
and that he was expected to continue to work for South
Shore Manor until May I when the regular night porter
was due to return to his former post. Mappa added that
he had invited Surgeon to come to the adult home so
that Mappa might explore the prospect of obtaining
other employment for him. So far as this record stands,
there is absolutely no evidence that Mappa had known
that Surgeon had testified for the General Counsel on
April 14 in this proceeding.
Surgeon testified at the hearing on April 27. He con-
tinued to work for South Shore Manor until May 1
when he was replaced by his predecessor. Through Avi's
good offices, Surgeon was rehired by Respondent on
May 17.
On the basis of the foregoing, I am hard-pressed to un-
derstand how the General Counsel can seriously contend
that Respondent caused South Shore Manor to discharge
Surgeon on April 27 for having given testimony on April
14, when, as the record convincingly reveals, Surgeon
was simply replaced in his job by the return of the regu-
lar night porter after an illness, and there is no evidence
which even remotely suggests that South Shore Manor
President Mappa was aware that Surgeon had ever given
testimony in this proceeding. In short, I shall dismiss this
allegation from the complaint.
Finally, the General Counsel asserts that Respondent
intruded upon rights guaranteed under Section 7 of the
Act and thereby violated Section 8(a)(l) of the Act by
interrogating employees concerning their activities on
behalf and in support of Local 144. I have heretofore
found that, in May, Respondent's manager, Rosenberg,
questioned Virginia Barker and Florence Doram as to
whether they had signed authorization cards on behalf of
Local 144, and Rosenberg, himself, admitted that he had
interrogated employee Anna Pilgrim about this topic
again in July. In the circumstances of this case, I con-
clude that such interrogation was coercive and hence
violative of Section 8(a)(l) of the Act.2 0
IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section 1II,
above, occurring in connection with Respondent's oper-
ations described in section 1, above, have a close, inti-
mate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
20 See Groendyke Transport, Inc., 211 NLRB 921, 922 (1974).
labor disputes burdening and obstructing commerce and
the free flow thereof.
v. THE REMEDY
I have found that Respondent has interfered with, re-
strained, and coerced its employees in the exercise of
rights guaranteed to them under Section 7 or the Act,
and thereby violated Section 8(a)(1) of the Act. I shall
therefore order that Respondent cease and desist there-
from.
I have also found that Respondent laid off Joesph
Johnson on May 10, 1977, and refused to reinstate him
on July 20, 1977, to substantially equivalent employment,
because he had joined and assisted Local 144 in its orga-
nizational attempts at the Home, and because he filed a
complaint against Respondent with the U.S. Department
of Labor over its wage payment practices, and thereby
violated Section 8(a)(3) and (1) of the Act. I have further
found that Respondent furloughed Shirley Johnson on
September 30, 1977, and refused to recall her thereafter,
because she had registered a complaint with the New
York State Division of Human Rights against Respon-
dent and had filed a union-security deauthorization peti-
tion with the Board, all in violation of Section 8(a)(l)
and (4) of the statute. To remedy these violations, I shall
order that Respondent offer immediate and full reinstate-
ment to Joseph Johnson and Shirley Johnson to their
former jobs or, if they no longer exist, to substantially
equivalent employment, and make them whole for any
loss of pay which they may have suffered as a result of
the discrimination practiced against them. The backpay
provided herein shall be computed in accordance with
the Board's formula set forth in F W. Woolworth Compa-
ny, 90 NLRB 289 (1950), with interest thereon as pre-
scribed in Florida Steel Corporation, 231 NLRB 651
(1977).21
I have found that Respondent deducted union dues
from its employees' wages without first obtaining their
authorization to make such deductions, and paid moneys
in the nature of dues to the Union on behalf of the em-
ployees without deducting these sums from the wages of
the employees or otherwise collecting those moneys
from authorized payroll deduction, and thereby violated
Section 8(a)(2) of the Act. I shall therefore order that
Respondent cease and desist therefrom.
Upon the basis of the foregoing findings of fact and
conclusions, and upon the entire record made in this pro-
ceeding, I hereby make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union and Local 144 are labor organizations
within the meaning of Section 2(5) of the Act.
3. By coercively interrogating employees concerning
their adherence to or support for Local 144 or any other
labor organization, and by issuing warning notices to em-
ployees for engaging in protected, concerted activities or
for availing themselves of rights guaranteed under the
Act, Respondent had engaged in and is engaging in
21 See, generally, Isis Plumbing & Hearing Co., 138 NLRB 716 (1962).
SEAPORT MANOR, INC. 899
unfair labor practices within the meaning of Section
8(a)(l) of the Act.
4. By laying off Joesph Johnson and failing to recall
him to his former or substantially equivalent position,
thereby discriminating in regard to his hire and tenure of
employment, in order to discourage his adherence to and
activities on behalf of Local 144, and to discourage his
filing of complaints with the U.S. Department of Labor
on behalf of his fellow employees, Respondent has en-
gaged in and is engaging in unfair labor practices within
the meaning of Section 8(a)(3) and (1) of the Act.
5. By laying off Shirley Johnson, thereby discriminat-
ing in regard to her hire and tenure of employment, in
order to discourage her from filing complaints with the
New York State Division of Human Rights, or from
filing petitions authorized under Section 9(e)(l) of the
Act with the Board, Respondent has engaged in and is
engaging in unfair labor practices within the purview of
Section 8(a)(1) and (4) of the Act.
6. By deducting union dues from employees' wages
without first obtaining their authorization to make such
deductions, and by paying moneys in the nature of dues
to the Union on behalf of its employees without deduct-
ing these sums from their wages or otherwise collecting
those moneys from authorized payroll deductions, Re-
spondent has engaged in and is engaging in unfair labor
practices within the ambit of Section 8(a)(2) of the Act.
7. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of
the Act.
Upon the foregoing findings of fact and conclusions of
law and the entire record, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, I
hereby issue the following recommended:
ORDER 2 2
The Respondent, Seaport Manor, Inc., and Martin
Rosenberg, Baruch Mappa, and Emil Klein, a partner-
ship, d/b/a Seaport Manor Home for Adults, Brooklyn,
New York, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Coercively interrogating employees concerning
their membership in or support for Local 144, or any
other labor organization.
(b) Giving warning notices to employees in order to
discourage them from seeking the assistance of state and
Federal agencies in matters relating to their terms and
conditions of employment.
(c) Laying off employees and failing to recall them to
their former or substantially equivalent positions in order
to discourage their adherence to Local 144, or any other
labor organization, or to inhibit their right to obtain the
assistance of Federal agencies in matters relating to their
terms and conditions of employment.
22 In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
(d) Laying off employees in order to discourage them
from filing complaints with the New York State Division
of Human Resources or to file petitions under the Act.
(e) Deducting union dues from employees' wages
without first obtaining their authorization to make such
deductions, or paying moneys in the nature of dues to
the Union on behalf of its employees without deducting
these sums from their wages or otherwise collecting
those moneys from authorized payroll deductions.
(f) In any other matter interfering with, restraining, or
coercing employees in the exercise of their rights guaran-
teed in Section 7 of the Act.
2. Take the following affirmative action, which I deem
is necessary to effectuate the policies of the Act:
(a) Offer to Joseph Johnson and Shirley Johnson im-
mediate and full reinstatement to their former jobs or, if
they no longer exist, to substantially equivalent employ-
ment, and make them whole for any loss of pay which
they may have suffered as a result of the discrimination
practiced against them, in the manner set forth in the
section of this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other re-
cords necessary to analyze the amount of backpay due
under the terms of this Order.
(c) Post at its health care facility in Brooklyn, New
York, copies of the attached notice marked "Appen-
dix." 23 Copies of said notice, on forms provided by the
Regional Director for Region 29, after being duly signed
by Respondent's authorized representative, shall be
posted by it immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 29, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be dis-
missed insofar as it alleges violations of the Act not spe-
cifically found herein.
23 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT question our employees concern-
ing their membership in or support for Local 144 or
any other labor organization.
SEAPORT MANOR, INC.
_ _ . _ _, _ _ ._ .
900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT give warning notices to our em-
ployees in order to discourage them fronn seeking
the assistance of state or Federal agencies in matters
relating to their terms and conditions of' employ-
ment.
WE WILL NOT lay off employees and refuse to
recall them to their former or substantially equiv-
alent jobs to discourage their membership in or sup-
port for Local 144, or any other labor organization,
or to discourage them from obtaining the assistance
of Federal agencies in matters relating to their
terms and conditions of employment.
WE WILL NOT lay off employees in order to dis-
courage them from filing complaints with the New
York State Division of Human Rights or from filing
petitions under the National Labor Relations Act, as
amended.
WE WILL NOT deduct union dues from our em-
ployees' wages without first obtaining their authori-
zation to make such deductions, or pay moneys in
the nature of dues to Local 6, International Feder-
ation of Health Professionals, International Long-
shoremen's Association, AFL-CIO, on behalf of
our employees without deducting these sums from
their wages or otherwise collecting those moneys
from authorized payroll deductions.
WE WILL NOT in any other manner interfere
with, restrain, or ceorce our employees in the exer-
cise of their rights guaranteed in Section 7 of the
Act.
WE WILL make Joseph Johnson and Shirley
Johnson whole for any loss of pay which they may
have suffered as a result of our discrimination prac-
ticed against them, and reinstate them to their
former or substantially equivalent jobs.
All our employees are free to become, remain, or re-
frain from becoming or remaining members of any labor
organization.
SEAPORT MANOR, INC., AND MARTIN
ROSENBERG, BARUCH MAPPA, AND EMIL
KLEIN, D/B/A SEAPORT MANOR HOME
FOR ADULTS