Petition — Multi-Medical Convalescent & Nursing Center of Towson v. National Labor Relations Board

Supreme Court brief1977

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IN THE

Supreme Court of the United States

OcTOBER TERM, 1977

No. 76-1849

MULTI-MEDICAL CONVALESCENT AND

NURSING CENTER OF TOWSON,

Petitioner,

Vv.

NATIONAL LABOR RELATIONS BOARD,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT, AND

APPENDICES THERETO

LEONARD E. COHEN,

JEFFREY ROCKMAN,

FRANK, BERNSTEIN, CONAWAY &

GOLDMAN,

1300 Mercantile Bank & Trust Bldg.

2 Hopkins Plaza

Baltimore, Maryland 21201

301-547-0500

Counsel for Petitioner,

Multi-Medical Convalescent

and Nursing Center of Towson.

The Daily Record Co., Baltimore, Md. 21202 eee s

TABLE OF CONTENTS

PETITION For A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SU: CN

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pT ae a er ER Mkt FS no SR de

GORPMTECOGE FUGTIETTEDD osececccsccccsscnccssiscccsscosscsonesestens

STATEMENT OF THE CASE. ....cccccccccocccccccsccccccccccccccees

REASONS FOR GRANTING THE WRIT:

1.

The decision below conflicts with other

decisions of the Fourth Circuit as well

as decisions of other Courts of Appeals

as to what constitutes misrepresenta-

tion in the solicitation of Union authori-

ON i

The decision below conflicts with the

decisions of other Courts of Appeals as

to the consideration to be given to

turnover in a bargaining unit in deter-

mining the appropriateness of a bar-

ED cist tcinnssedbicitcsnenitiininiiiacnns

Employer was denied by administrative

law judge its due process right to

impeach testimony of NLRB witnesses

and to make otfers of proof to preserve

Ginny GEIIIIITIIET - ‘seseneccnshsiiniicinataéadaieeiingadeiieasithiatedabaniate

I i i

APPENDIX A — OPINION OF COURT OF APPEALS

APPENDIX B — OPINION OF THE NATIONAL

LABOR RELATIONS BOARD. .............cccccceeeeeeceeeees

PAGE

we mw bd

11

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‘i

PAGE

APPENDIX C — DECISION OF THE

ADMINISTRATIVE LAW JUDGE ISSUED ON

MARCH 24, 1976 ..cccccccsccrcossrsrcccsccscessocccecsosssoseooes l4a

AUTHORITIES CITED

Cases

Fort Smith Outerwear, Inc. v. NLRB, 499 F.2d _

I I sets 6

G & P Trucking Co., Inc. v. NLRB, —— F.2d

___, 92 LRRM 3652 (4th Cir. 1976) ............. 10

Louisburg Sportswear Co. v. NLRB, 62 F.2d 380,

RN CI = A a oo 6

NLRB v. American Cable Systems, Inc., 427 F.2d

i Me IIS. TPPTED ccccsccsescecsccesnnsdccscessencoes 8

NLRB v. Burns, 207 F.2d 434 (8th Cir. 1953) ... 10

NLRB v. Capitol Fish Co., 294 F.2d 868 (5th Cir.

I id a i 10

NLRB v. General Stencils, Inc., 472 F.2d 170 (2nd

ISIC EES RENE ee a Oe g

NLRB v. Gissel Packing Co., 395 U.S. 575 (1969) 5, 9, 11

NLRB v. LB. Foster Co., 418 F.2d 1 (9th Cir.

RBG SS RNC WNP NODES VENER OO 8

NLRB v. M. Koppel Co., 412 F.2d 681 (3rd Cir.

EE EIEN STR Se ee 10

NLRB v. Ship Shape Maintenance Co., 474 F.2d

A I, ces 7,8

NLRB v. South Bay Daily Breeze, 415 F.2d 360

I ae 6

NLRB v. Tennessee-Carolina Transportation,

Inc., 226 F.2d 743 (6th Cir. 1955) .................. 10

NLRB v. United Brass Works, Inc., 287 F.2d 689

a I abil eitthininitiiatasinsincnasiennatiiciannsitiies 10

Peerless of America, Inc. v. NLRB, 484 F.2d 1108

SC eee 8

ili

PAGE

Pennsylvania Lumbermens Mutual Fire Insur-

ance Co. v. Nicholas, 253 F.2d 504 (5th Cir.

TORRE SOAR Rr AIRE ARS nia On PE SPC en eee pe eT a 10

U.S. v. James, et al., 510 F.2d 546 (5th Cir. 1975) 10

Statutes

I a cneienoepeeinenes 3

I i ia cecalesiaiialinamnistatll 2

I i tela llai 2

IN THE

Supreme Court of the United States

OcToBER TERM, 1977

No.

MULTI-MEDICAL CONVALESCENT AND

NURSING CENTER OF TOWSON,

Petitioner,

Vv.

NATIONAL LABOR RELATIONS BOARD,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

The Petitioner, Multi-Medical Convalescent and

Nursing Center of Towson respectfully prays that a

writ of certiorari issue to review the judgment and

opinion of the United States Court of Appeals for the

Fourth Circuit entered in this proceeding on February

24, 1977.

OPINION BELOW

The opinion of the Court of Appeals, not yet reported

appears in the Appendix hereto. Also included in the

Appendix hereto is the opinion of the National Labor

Relations Board of June 30, 1976 from which Petitioner

appealed to the Court of Appeals, and the Decision of

the Administrative Law Judge issued on March 24,

1976.

2

JURISDICTION

The judgment of the Court of Appeals for the Fourth

Circuit was entered on February 24, 1977. A timely

petition for rehearing en banc was denied on March 28,

1977, and this petition for certiorari was filed within 90

days of that date. This Court’s jurisdiction is invoked

under 28 U.S.C. §1254(1).

QUESTIONS PRESENTED

1. Whether Union authorization cards are valid

when employees are told by the Union that the cards

are for the purpose of getting an election although the

expression “only” or “sole” purpose is not used.

2. Whether turnover in the bargaining unit is a

factor which should be considered by the NLRB in

determining the appropriateness of a bargaining order

as a remedy for unfair labor practices.

3. Whether the Administrative Law Judge denied to

Employer its due process right to impeach testimony of

NLRB witnesses and to make offers of proof to preserve

the record.

STATEMENT OF THE CASE

Petitioner Multi-Medical Convalescent and Nursing

Center of Towson (herei:.after called “Employer’”) is a

Maryland limited partnership engaged in the operation

of a nursing home in Towson, Maryland. Pursuant to

Section 10(f) of the Labor-Management Relations Act of

1947, 29 U.S.C. §160, Petitioner filed with the United

States Court of Appeals on July 8, 1976 a petition for

review of a decision and order issued by the National

Labor Relations Board on June 30, 1976, affirming the

rulings, findings and conclusions of Administrative

Law Judge Benjamin Lipton that Petitioner violated

Section 102 of the LMRA of 1947, 29 U.S.C. §158.

3

On April 7, 1975 District 1199E, National Union of

Hospital and Health Care Employees, Retail, Wholesale

and Department Store Union, AFL-CIO (hereinafter

called the “Union”) filed a Petition with the National

Labor Relations Board in which the Union sought to be

certified as the bargaining representative of the

Employer’s “regular full-time and regular part-time

service and maintenance employees employed by the

Employer at its Towson, Maryland location”. On May

14, 1975 a representation election was held; the Union

failed to obtain a majority of the ballots cast.

As a result of unfair labor practice charges and

objections to the election filed by the Union with the

National Labor Relations Board, the Regional Director

from the Fifth Region issued a Complaint and Notice of

Hearing against the Employer — Case Nos.: 5-CA-7287

and 5-RC-9304. Said Complaint alleged that the

Employer violated Sections 8(a)(1) and 8(a)(3) of the

National Labor Relations Act, as amended, 29 U.S.C.

§151, et seq. The relief requested was the issuance of a

bargaining order against the Employer requiring it to

bargain with the Union. A subsequent Complaint

issued by the Board alleging violation of Section 8(a)(3)

against the Employer was consolidated with the above-

mentioned Complaint.

Hearings were held on September 16, 24, 25 and

October 21, 1975 and January 14, 1976. The hearings

were held before Administrative Law Judge Benjamin

Lipton to determine whether the Employer had violated

Section 8(a)\(1) and 8(a)(3) of the Act.

Judge Lipton issued his decision on March 24, 1976.

He decided, inter alia, that the Employer violated

Section 8(a)(3) of the National Labor Relations Act by

discharging employees for union activities; that Em-

ployer violated Section 8(a)(1) by improperly threaten-

ing employees with layoff in a speech; and that a

4

bargaining order should be issued against Employer

because of these violations.

Employer filed Exceptions with the NLRB to Judge

Lipton’s decision on April 14, 1976. The National Labor

Relations Board issued its Decision and Order on June

30, 1976, adopting all rulings and findings of Judge

Lipton and, additionally, finding Employer to have

violated Section 8(a)(5) of the Labor-Management

Relations Act. Employer filed a Petition for Review

with the Court of Appeals for the Fourth Circuit on July

8, 1976. On February 24, 1977, the Court issued its

opinion affirming the decision of the NLRB.

REASONS FOR GRANTING THE WRIT

1. THE DECISION BELOW CONFLICTS WITH OTHER DECI-

SIONS OF THE FOURTH CIRCUIT AS WELL AS DECI-

SIONS OF OTHER COURTS OF APPEALS AS TO WHAT

CONSTITUTES MISREPRESENTATION IN THE SOLICI-

TATION OF UNION AUTHORIZATION CARDS.

Employer presented undisputed testimony before the

Administrative Law Judge that the authorization cards

of two employees were obtained by misrepresentation —

that the cards were for the purpose of getting an

election and not for the purpose of designating the

Union as their representative. One of the employees

stated that she was told that the card “was to try to get

an election for the Union to come into the building”’.

The other employee testified that she was told that

signing the card would help the Union get an election.

Without these two authorization cards, the Union did

not have valid cards from a majority of the employees.

The Administrative Law Judge credited the testi-

mony of the two employees but took the position that

the cards were valid because the employees had not

been told the “sole” or “only” purpose of the card was to

get an election; the Board adopted the Administrative

Law Judge’s finding. The Fourth Circuit Court of

5

Appeals ruled that the Administrative Law Judge’s

finding was correct — the cards were not obtained by

misrepresentation because the employees were not told

that the “sole” or “only” purpose of the cards was to get

an election (2a and 3a).

The Court’s ruling that the authorization cards of the

two employees were not obtained by misrepresentation

is in conflict with the rule of law established by the

Supreme Court and applied by every Circuit —

including the Fourth Circuit.

The Fourth Circuit, in making its finding, relied on

NLRB v. Gissel Packing Co., 395 U.S. 575 (1969) where

the Supreme Court adopted the NLRB’s Cumberland

Shoe rule stating that employees will be bound by the

clear language of the card they sign unless the

language is cancelled by deliberate statements of a

union adherent. The Fourth Circuit, however, over-

looked the fact that the Supreme Court in Gissel also

expressly noted the Board’s language in Levi Strauss

where it was stated that the Cumberland Shoe rule

should not be applied mechanically — the words “sole”

or “only” need not be used in order for there to be a

misrepresentation.

“. . [E]mployees should be bound by the clear

language of what they sign unless that language is

deliberately and clearly canceled by a union

adherent with words calculated to direct the signer

to disregard and forget the language above his

signature. .. .” (Emphasis added) 395 U.S. 606.

The Circuit Courts — including the Fourth Circuit —

have heretofore heeded the admonition of the Supreme

Court in Gissel in determining whether statements by a

union solicitor constitute a misrepresentation.

6

In Louisburg Sportswear Co. v. NLRB, 462 F.2d 380,

387 (4th Cir. 1972), the Court reversed the Board’s

holding that certain cards were valid saying:

“The language of the card was an unequivocal

designation of the union as a bargaining represen-

tative of the signers. There was testimony, how-

ever, that many of them, obtained by Amalgamat-

ed’s organizer, Barnes, and William Foster, were

obtained with representations that the cards were

sought for the purpose of obtaining an election,

and that the cards would be effective and binding

only if an election were held and the union won.

This testimony was credited by the Board, but was

disregarded on the ground that the card signers

could not have failed to understand the clear

meaning of the printed words.

This resolution of the matter misses the point for

the card is invalid for the purpose of a card check

if its language is clearly contradicted by contrary

representations.”

In NLRB v. South Bay Daily Breeze, 415 F.2d 360

(9th Cir. 1969) — decided shortly after the Supreme

Court’s Gissel decision — the Court held invalid a card

where the union organizer told the employee that “the

cards would bring about an election”.

The Eighth Circuit in Fort Smith Outerwear, Inc. v.

NLRB, 499 F.2d 223 (8th Cir. 1974) considered invalid

the authorization cards of employees who had signed

after being told by the union solicitor that the card was

to petition for an election and that if enough people

signed there would be an election.

Thus, the Fourth Circuit’s ruling in the instant case is

in direct conflict with the Supreme Court’s decision in

Gissel and the decisions of the other Federal Circuits

which have dealt with this issue. This conflict created

by the Fourth Circuit, Employer respectfully submits,

must be resolved by the Supreme Court.

7

2. THE DECISION BELOW CONFLICTS WITH THE DECI-

SIONS OF OTHER COURTS OF APPEALS AS TO THE

CONSIDERATION TO BE GIVEN TO TURNOVER IN A

BARGAINING UNIT IN DETERMINING THE APPROPRI-

ATENESS OF A BARGAINING ORDER.

The Administrative Law Judge in the instant case

refused to allow Employer to present evidence of the

extensive turnover in the bargaining unit between the

time of the labor election and the beginning of the

hearings. He also would not allow a proffer to be made

as to said turnover; the extent of the turnover is

therefore not in the record. Neither the Board nor the

Fourth Circuit Court of Appeals disturbed the Adminis-

trative Law Judge’s ruling. In fact, neither the Board

nor the Court addressed itself to this ruling of the

Administrative Law Judge.

The Employer was prepared at the hearing to show

that of the 62 employees then in the bargaining unit

only 16 had been there at the time of the election and of

those 16 only 7 had indicated interest in the Union

by signing authorization cards. This extensive turnover

was, Employer submits, an appropriate factor to be

considered in determining whether a bargaining order

was needed to remedy the unfair labor practices of the

Employer.

With the exception of the Ninth Circuit, and now the

Fourth Circuit, all the Circuit Courts which have

considered whether turnover in the bargaining unit

should be a factor, have determined that it should be.

The Second, Fifth, Seventh and D.C. Circuits have held

that turnover in the work force is a factor that should

be weighed by the National Labor Relations Board

when determining the appropriateness of a bargaining

order. In NLRB v. Ship Shape Maintenance ©o., 474

F.2d 434 (D.C. Cir. 1972), the Court stated at page 443:

«_. [IJn the instant case, enforcement of the

Labor Board’s proposed bargaining order would

8

impose representation upon a current unit of

employees, the vast majority of whom were neither

employed by the Company at the time of the unfair

labor practice violation nor meaningfully affected

by its commission. Such enforcement would ignore

the fact that the N.L.R.A. expressly protects the

right of employees to refrain from organizatione|

activities if they so desire.”

Similarly, in NLRB v. General Stencils, Inc., 472 F.2d

170 (2nd Cir. 1972) the Court refused to enforce a Board

bargaining order and stated that this might be an

appropriate case for the Board to reconsider employee

turnover. In NLRB v. American Cable Systems, Inc.,

427 F.2d 446, 448 (5th Cir. 1970) the Court disagreed

with the Board’s refusal to consider turnover in the

bargaining unit, saying:

“. . . [Wje think that .. . the Board should have

taken the opportunity to consider the then existing

situation at American Cable to determine whether

the electoral atmosphere was still so contaminated

that a bargaining order was then justified.”

In Peerless of America, Inc, v. NLRB, 484 F.2d 1108

(7th Cir. 1973) the Court held that a reduction in the

employer’s work force was a factor which the Board

should have considered since it was the present work

force which would be denied the freedom of choice

available in an election, and the present work force was

substantially different from the one existing at the time

of the unfair labor practices.

Only the Ninth Circuit, prior to the instant case, had

agreed with the Board’s position that turnover should

not be considered. See, NLRB v. I.B. Foster Company,

418 F.2d 1 (9th Cir. 1969). The facts in that case,

however, involved only turnover in the bargaining unit

which occurred after the administrative law hearings.

Thus, the Ninth Circuit has only held that post-hearing

turnover in the bargaining unit is not a factor to be

9

considered; it has not addressed the question of pre-

hearing turnover.

The Second, Fifth, Seventh and D.C. Circuits supra

all held turnover — regardless of when it occurs — to be

a relevant factor the Board should consider. Only the

‘Fourth Circuit, in the instant case, has held that pre-

hearing turnover should not be considered by the

Board.

The decision of the Fourth Circuit only serves to

deepen the split between the Board and the Circuits on

the issue of turnover as a factor for consideration by the

Board in issuing bargaining orders. It would seem clear

under NLRB v. Gissel, 395 U.S. 575 (1969) that a

bargaining order is the remedy of last resort — only to

be used when the preferred remedy of a fair election is

impossible. Certainly turnover in the bargaining unit —

be it pre-hearing or post-hearing — is an important

element to be considered in determining whether in fact

a fair election can be held or whether a bargaining

order must be issued.

Employer submits, therefore, that it is essential that

the Supreme Court resolve this conflict which concerns

a matter closely related to the Section 7 right of

employees under the Taft-Hartley Act to decide whether

or not they want to be represented by a union — a right

which is abrogated by the imposition of a bargaining

order.

3. EMPLOYER WAS DENIED BY ADMINISTRATIVE LAW

JUDGE ITS DUE PROCESS RIGHT TO IMPEACH TESTI-

MONY OF NLRB WITNESSES AND TO MAKE OFFERS OF

PROOF TO PRESERVE THE RECORD.

Despite the well-settled state of the law that a party

has the right to attempt to impeach the testimony of

adverse witnesses, the Fourth Circuit in the instant

case failed to rule as to the impropriety of the

10

Administrative Law Judge’s evidentiary rulings which

prevented Employer from impeaching the testimony of

the General Counsel’s key witnesses. The Administra-

tive Law Judge would not permit testimony directed

toward establishing bias on the part of the,key witness

for the General Counsel for the Board. The Administra-

tive Law Judge would also not permit testimony and

evidence intended to establish a prior inconsistent

statement on the part of one of the charging parties.

The Fourth Circuit, in its opinion, does not even

address these issues, despite the clear state of the law in

various circuits that it is a denial of due process to

prevent a party from introducing testimony that may

impeach testimony offered against it. See, e.g., NLRB v.

M. Koppel Co., 412 F.2d 681 (3rd Cir. 1969); NLRB v.

Capitol Fish Co., 294 F.2d 868 (5th Cir. 1961); NLRB v.

Burns, 207 F.2d 434 (8th Cir. 1953). Indeed, the Fourth

Circuit itself has in the past recognized this right of a

party to impeach testimony against it. See, G & P

Trucking Co., Inc. v. NLRB, _— F.2d ___, 92 LRRM

3652, (4th Cir. 1976) and NLR® v. United Brass Works,

Inc., 287 F.2d 689 (4th Cir. 1961).

Similarly, it is an irrefutable statement of the law

that a party must be given the opportunity to put in the

record a fair statement of what it intended to prove, so

that an appellate court can properly pass upon the

challenged ruling of the trial judge. Refusal to allow a

proffer constitutes a denial of due process. U.S. v.

James, et al., 510 F.2d 546 (5th Cir. 1975); Pennsylvania

Lumbermens Mutual Fire Insurance Co. v. Nicholas,

253 F.2d 504 (5th Cir. 1958); NLRB v. Tennessee-

Carolina Transportation, Inc., 226 F.2d 743 (6th Cir.

1955). See, also, Rule 103(a)(2), Federal Rules of Evi-

dence.

In the present case, the Administrative Law Judge on

two occasions refused to allow Employer to make a

11

proffer. In both instances, the excluded evidence

concerned matters which were vital to the Employer's

case — turnover in the bargaining unit and testimony

intended to impeach the credibility of a charging party

in the case. The Court in affirming the decision of the

NLRB made no reference to these glaring procedural

errors.

Thus, Employer was denied the opportunity to fully

present its case before the Administrative Law Judge —

a clear violation of Employer’s right to due process; a

violation to which the Fourth Circuit, incredibly, never

addressed itself.

CONCLUSION

It is respectfully submitted that Employer’s Petition

for a writ of certiorari to review the judgment of the

United States Court of Appeals for the Fourth Circuit

should be granted for the following reasons:

1. The questions raised in this case concerning the

issuance of a bargaining order based upon an authori-

zation card majority, misrepresentation in the solicita-

tion of cards, and pre-hearing turnover in the bargain-

ing unit are issues which stem directly from the

Supreme Court’s ruling in Gissel, supra. These issues

are of great concern to labor practitioners across the

country who represent management because the NLRB

has extended the Supreme Court’s Gissel decision

beyond proper bounds. Yet the Fourth Circuit, in this

case, has approved the NLRB’s position without regard

to the numerous decisions from other Circuits holding

just the opposite.

2. By affirming the rulings of the Administrative

Law Judge respecting certain evidentiary matters,

which rulings resulted in an unquestionable denial of

due process to Employer, the Fourth Circuit has

rendered a decision which conflicts with every reported

12

decision of every federal Circuit Court which has

commented on the evidentiary and procedural rights of

parties at an NLRB hearing.

Respectfully submitted,

LEONARD E. ConHeEn,

. JEFFREY ROCKMAN,

FRANK, BERNSTEIN, CONAWAY &

GOLDMAN,

1300 Mercantile Bank & Trust Bldg.

2 Hopkins Plaza

Baltimore, Maryland 21201

301-547-0500

Counsel for Petitioner,

Multi-Medical Convalescent

and Nursing Center of Towson.

la

APPENDIX A

United States Court of Appeals

For the Fourth Circuit

No. 76-1738

Multi-Medical Convalescent and

Nursing Center of Towson,

Petitioner,

v.

The National Labor Relations Board,

Respondent.

On Petition for Review of an Order of the National

Labor Relations Board.

Argued January 10, 1977

Decided February 24, 1977.

Before WINTER, CRAVEN and BuTZNER, Circuit Judges.

CRAVEN, Circuit Judge:

On the employer’s petition to review, and the cross-

application of the National Labor Relations Board for

enforcement, we conclude, for reasons to be briefly

stated, that the Board’s order should be enforced.

I

The Board found that the active manager of the

petitioner (Mrs. Burkoff) told the employees that if they

2a

voted for the Union she would have to grant pay

increases demanded by the Union, that she could not

afford to pay such increases, and that she would have

no alternative but to lay off some employees. Previously

Mrs. Burkoff had told the employees that they would

receive raises in pay as the number of patients

increased in the nursing center. The Board viewed the

statements as the typical “carrot and stick approach”

and concluded that the speech was not a “carefully

phrased” prediction based on objective fact conveying

demonstrably probable consequences beyond respond-

ent’s control. NLRB v. Gissel Packing Co., 395 U.S. 575,

618 (1969). We agree that the employer's expression of

views, argument or opinion, fully protected by the First

Amendment and by the Act, 29 U.S.C. §158(c), was not

so carefully exercised as to screen out intended

implications of “threat of reprisal or force or promise of

benefit” in violation of 8(a)(1). 29 U.S.C. §158(c).

Il.

The Board found that as of April 19, 1975, the Union

had authorization cards for 20 of the 39 employees and

that as of April 23 it had 22 authorization cards. The

Company’s most serious objection to the’ authorization

cards related to those of Clark and Owens who were

told by Union representatives that their cards were to

help the Union get an election. The Board determined

that these cards should be counted because the

employees were not told that the cards were solely for

the purpose of obtaining an election and because the

cards contained a perfectly clear declar2 ion ‘at the

signer designated the Union as bargai*ing 2.~at. In

Gissel, supra, a unanimous Supreme wart ««:*oved

the Board’s Cumberland rule, 144 N.L.R.B. 1268 (1963),

as applied in one of the cases consolidated under the

Gissel name and as applied in that case (Generai Steel).

395 U.S. at 584, n.5. In approving the Cumberland rule,

the Court said:

[W]e think it sufficient to point out that employees

shall be bound by the clear language of ms a -

3a

sign unless that language is deliberately and

clearly cancelled by a union adherent with words

calculated to direct the signer to disregard and

forget the language above his signature.

Id. at 606.

The Board concluded, on substantial and indeed,

plenary evidence of unfair labor practices directed

toward destruction of the union majority, that the

application of the Board’s traditional remedies would

not serve to eliminate the lingering coercive effect of

unfair labor practices. Concluding that a fair new

election had been rendered highly improbable by the

conduct of the employer, the Board ordered the

employer to recognize the Union and to commence

bargaining on the basis of the signed authorization

cards of a majority of the employees. It is clear that

where practices have been engaged in that “have the

tendency to undermine majority strength and impede

the election processes” the Board has authority to issue

a bargaining order. Gissel, 395 U.S. at 614.

If the Board finds that the possibility of erasing

the effects of past practices and of ensuring a fair

election (or a fair rerun) by the use of traditional

remedies, though present, is slight and that

employee sentiment once expressed through cards

would, on balance, be better protected by a

bargaining order, then such an order should issue.

Id. at 614-615.

Il.

One aspect of the case gravely concerns us. It is the

apparent disposition of the administrative law judge to

adhere rigidly to exclusionary rules of evidence and, if

at all in doubt, to curtail development of potentially

relevant lines of inquiry. This is brinksmanship, and

here the administrative law judge very nearly tumbled

over the brink. For example, Mrs. Burkoff was asked

whether at the time she made her speech to employees

the nursing home was making or losing money. The

4a

administrative law judge interposed his own objection

and refused to permit the witness to answer on the

ground that it would be a conclusion and would require

testimony of an accountant to determine its truth, and

on the further ground that the best evidence would be

the books of the corporation. If there were nothing

more, we would be inclined to vacate and remand, but

later the judge saved himself by indicating he would

modify his ruling if counsel was prepared to bring in

the books to be examined. In response, counsel

ambiguously advised that financial statements are

normally year-end and that although he would be able

to bring the accountant, he was “not prepared to do

that at this moment.” Because of this circumstance,

and because there is nothing in the record in the nature

of objective evidence indicating that the Union had

demanded higher wages or would soon do so, we think

the administrative law judge skirted the edge of the

precipice.

We are also concerned that in considering the reasons

why Peay was discharged the judge refused to hear

evidence that other employees, not affiliated with the

Union, were dismissed for a reason aliegedly similar to

the one assigned by the company with respect to this

union adherent. After Mrs. Burkoff had been allowed to

testify that she had terminated “about four” employees

for insubordination, she was asked whether she could

identify them. Thereafter ensued a colloquy between the

administrative law judge and company counsel. The

judge indicated that he would not permit going into the

circumstances of the discharge of other employees “at

length” and having them called as witnesses, and also

indicated that Mrs. Burkoff’s statement that “four

employees were terminated for insubordination” would

stand. Counsel for the company apparently acquiesced

in the ruling and made no further proffer. Ex. App. 100.

That sort of evidence goes to whether the company

departed from its customary practice in discharging

union adherents, which goes to the question of

invidious motivation. The evidence supporting the

5a

Board’s decision that -Peay’s discharge was for union

activity was very strong. There was, indeed, so much of

it that the administrative law judge summarized the

factors he took into account and the summary comes to

one-half page of his decision.' Because the evidence is

very strong and because of counsel’s apparent acquies-

cence to the ruling cutting off further development of

the facts with respect to the alleged termination for

insubordination of other employees, we think the error

does not invalidate the proceediigs. But it would have

been better practice for the administrative law judge to

' The following is an excerpt from the administrative law

judge’s “Conclusions”:

My decision on the question of Peay’s discharge is

based, inter alia, upon the following considerations in

summary: (1) Peay’s unguarded leadership activities on

behalf of the Union. (2) Burkoff’s hostile reaction upon

finding Peay attended the Board representation hearing

on April 21, and her expressed belief that Peay was a

paid union organizer. (3) Burkoff's use of Connor as an

espionage agent, and his invasion and violation of

Peay’s confidence in obtaining and reporting to Burkoff

on Peay’s union conduct, including the remark in

question critical of Burkoff. (4) The fact that on April 29

Connor was engaged with Peay in a two-party conversa-

tion, purportedly overheard from a distance by two

employees who were not called to testify. (5) Connor’s

written report to Burkoff on April 29, pointing to Peay as

a “rabble-rouser” and as a dedicated proponent of the

Union, — while quoting Peay as stating she had heard

Burkoff is a crook. (6) The essential nature of Peay’s

remark regarding Burkoff. It was made in limited

reference to the reliability of the Union’s financial

statements given to Connor by Burkoff for campaign

propaganda. It appears as an offhand comment by an

obviously unsophisticated domestic-type worker. It was

not articulated for general circulation and, in my

opinion, was not uttered with intended or understood

malice against Burkoff personally. (7) Burkoff decided

summarily to discharge Peay before confronting her, —

Connor’s protests notwithstanding that he did not

intend such a result and that it was wrong. And Connor

was told he had to back her up; “administrators have to

stick together.”

Jt. App. 49.

6a

have permitted testimony, albeit briefly, as to the

conduct of the other employees said to have occasioned

discharge for insubordination.

In a nonjury trial, whether in the district court or

before an administrative law judge, little harm can

result from the reception of evidence that could perhaps

be excluded. This is so because the judge, trial or

administrative, is presumably competent to screen out

and disregard what he thinks he should not have heard,

or to discount it for practical and sensible reasons. On

the other hand, to exclude that which is competent and

relevant by mechanistic application of an exclusionary

rule is exceedingly dangerous to the administrative or

trial process and may well result in vacating the

judgment or order on procedural due process grounds.

It has long been settled? that an appellate court will

not reverse a judgment in a nonjury case because of the

admission of incompetent evidence, unless all of the

competent evidence is insufficient t* support the

judgment or unless it affirmatively appears that the

incompetent evidence induced the court to make an

essential finding which would not otherwise have been

made. Builders Steel Co. v. Commissioner, 179 F.2d 377

(8th Cir. 1950). See 2B W. Barron & A. Holtzoff,

Federal Practice and Procedure §972 (Wright ed. 1961).

Professor Wright tells us that “[t]he attitude now

governing has been strongly stated by Judge Sanborn:

‘In the trial of a nonjury case, it is virtually impossible

for a trial judge to commit reversible error by receiving

incompetent evidence, whether objected to or not.’” 2B

W. Barron & A. Holtzoff, supra, at 268.

The appellate courts have taken a similarly critical

view of exclusionary rulings by administrative agen-

cies. Samuel H. Moss, Inc. v. FTC, 148 F.2d 378, 380 (2d

Cir.), cert. denied, 326 U.S. 734 (1945). Thus, we strongly

advise administrative law judges: if in doubt, let it in.

* Innumerable decisions are collected in West’s Modern

Federal Practice Digest under the key number “Courts”

406.6(8\(i), Cases tried without jury, 15 Modern Federal

Practice Digest 466.

7a

IV.

We have carefully considered the other issues pres-

ented by the employer and find them without merit.

We hold that substantial evidence on the record as a

whole supports the Board’s findings that the nursing

home violated §8(a)(1) by threatening employees with

layoffs if they voted for the Union, and by coercively

interrogating employees about union activities and

conducting an espionage campaign. We hold that the

nursing home violated §§8(a)(3) and (1) of the Act by

discharging employees Wilma Peay and Vera Owens.

For the reasons stated, we also hold that the nursing

home violated §§8(a)(5) and (1) of the Act by refusing to

recognize the Union as majority representative of its

employees and that a bargaining order was not

inappropriate to effectuate the policies of the Act.

Order Enforced.

8a

APPENDIX B

United States of America

Before the National Labor Relations Board

Cases 5-CA-7287, 5-CA-7521, and 5-RC-9304

Multi-Medical Convalescent and

Nursing Center of Towson

and

District 1199E, National Union of Hospital and

Health Care Employees, Retail, Wholesale

and Department Store Union, AFL-CIO

DECISION AND ORDER

On March 24, 1976, Administrative Law Judge

Benjamin B. Lipton issued the attached Decision in this

proceeding. Thereafter, Respondent filed exceptions and

a supporting brief. General Counsel filed cross-

exceptions and a memorandum in support thereof, and

Respondent filed a brief in response to the cross-

exceptions of the General Counsel.

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 author-

ity in this proceeding to a three-member panel.

The Board has considered the record and the

attached Decision in light of the exceptions and briefs

and has decided to affirm the rulings,' find-

' Respondent has excepted generally to the Decision of the

Administrative Law Judge, contending that he exhibited bias

and hostility against Respondent which resulted in prejudice

to Respondent and a denial of due process. We have carefully

examined the record and find no basis for those exceptions.

9a

ings,” and conclusions of the Administrative Law Judge

to the extent consistent herewith and to adopt his

recommended Order as modified herein.

1. The Administrative Law Judge found that Re-

spondent’s unfair labor practices were sufficiently

egregious to warrant a bargaining order under N.L.R.B.

v. Gissel Packing Co., Inc.* He further found that under

our decision in Trading Port, Inc.,‘ the bargaining order

should be dated from April 21, 1975, the date on which

the Union had authorization cards from the majority of

Respondent’s employees in an appropriate unit, as well

as the date that Respondent embarked on a clear course

of unlawful conduct. We agree with these findings.

The Administrative Law Judge found it unnecessary

to reach the issue of whether Respondent violated

Section 8(a)(5) of the Act because it was not alleged in

We have further carefully reviewed the instances in which

the Administrative Law Judge limited certain testimony, to

which Respondent has also excepted. The only exclusion of

possibly relevant evidence was that which Respondent

sought to adduce to impeach the testimony of witness

Conners. That evidence, intended to impeach Conners’credi-

bility generally, concerned the circumstances under which he

left Respondent’s employ, and the Administrative Law Judge

stated that at most this would discredit Conners only as to

the facts concerning his departure, which were not in issue. It

is well established that an Administrative Law Judge can

discredit a portion of a witness’ testimony without discredit-

ing the witness generally. Under the circumstances, there-

fore, we do not find that the exclusion of this evidence was

prejudicial.

2 The Respondent has excepted to certain credibility

findings made by the Administrative Law Judge. It is the

Board’s established policy not to overrule an Administrative

Law Judge’s resolutions with respect to credibility unless the

clear preponderance of all of the relevant evidence convinces

us that the resolutions are incorrect. Standard Dry Wall

Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A.

3, 1951). We have carefully examined the record and find no

basis for reversing his findings.

* 395 U.S. 575 (1969).

* 219 NLRB No. 76 (1975).

10a

the complaint. We disagree. Although the complaint did

not allege an 8(a)(5) violation, we deem it appropriate to

make such a finding here inasmuch as that issue was

fully litigated at the hearing and all of the elements of

such violation are fully established by the record.®

Thus, the parties stipulated, for purposes of the

representation proceeding, that on April 21, 1975, the

Petitioner orally requested recognition as exclusive

collective-bargaining agent and that on the same date

the Employer orally refused to grant such recognition

unless and until the Petitioner was certified by the

Board. The parties further agreed as to the appropriate-

ness of the unit. Additionally, the record establishes

that on April 21 the Union had authorization cards

from 20 of Respondent’s 39 unit employees.

Based on the foregoing we find, contrary to the

Administrative Law Judge, that Respondent violated

Section 8(a)(5) of the Act by refusing to recognize and

bargain with the Union on and after April 21, 1975.*

ORDER

Pursuant to Section 10(c) of the National Labor

Relations Aci, as amended, the National Labor Rela-

tions Board adopts as its Order the recommended Order

of the Administrative Law Judge and hereby orders

that the Respondent, Multi-Medical Convalescent and

Nursing Center of Towson, Maryland, its officers,

agents, successors, and assigns, shall take the action

set forth in the said recommended Order, as modified

below:

1. Insert the following as paragraph l(e) and reletter

the present paragraph l(e) and 1(f):

“(e) Refusing to bargain collectively with District

1199E, National Union of Hospital and Health Care

* Respondent cannot claim surprise by this additional

finding inasmuch as the litigation of the remedial bargaining

order, including the Union’s majority status, the demand,

and the refusal, adequately apprised Respondent of the

likelihood of such a finding.

® Schwab Foods, Inc., d/b/a Scotts IGA Foodliner, 223

NLRB No. 43 (1976).

lla

Employees, Retail, Wholesale and Department Store

Union, AFL-CIO, as the exclusive bargaining represen-

tative of the Respondent’s employees in the following

appropriate unit:

All regular full-time and regular part-time service

and maintenance employees, excluding registered

nurses, licensed practical nurses, office clerical

employees, professional employees, guards, and

supervisors as defined in the Act.

2. Substitute the attached notice for that of the

Administrative Law Judge. Dated, Washington, D.C.

June 30, 1976.

Betry SOUTHARD Murpnuy, Chairman

JOHN H. FANNING, Member

JOHN A. PENELLO, Member

(SEAL) 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 ask you anything about your union

activities, or the union activities of your fellow

employees, in a manner which would coerce you

regarding your rights under the National Labor

Relations Act.

WE WILL NOT threaten you with discharge, layoff,

or other punishment because of your activities or

sentiments in behalf of District 1199E, National Union

of Hospital and Health Care Employees, Retail,

Wholesale and Department Store Union, AFL-CIO, or

any other labor organization.

WE WILL NOT assign or use our security guards, or

any other agents, to spy and report to us on your union

activities or sentiments.

12a

WE WILL NOT discourage membership in, or

activities in behalf of, District 1199E, National Union

of Hospital and Health Care Employees, Retail,

Wholesale and Department Store Union, AFL-CIO, or

in any other labor organization, by discharging

employees or in any other manner discriminating in

regard to hire or tenure of employment or any term or

condition of employment.

WE WILL NOT refuse to bargain collectively with

District 1199E, National Union of Hospital and Health

Care Employees, Retail, Wholesale and Department

Store Union, AFL-CIO, as the exclusive bargaining

representative in the appropriate unit described below.

The appropriate unit is:

All regular full-time and regular part-time service

and maintenance employees, excluding registered

nurses, licensed practical nurses, office clerical

employees, professional employees, guards, and

supervisors as defined in the Act.

WE WILL NOT in any other manner interfere with,

restrain, or coerce you in the exercise of your rights

guaranteed in the National Labor Relations Act, which

include:

To engage in self-organization

To form, join, or help unions

To bargain collectively through a representa-

tive of your choosing

To act together for collective bargaining or

other mutual aid or protection

To refuse to do any or all of these things.

WE WILL, upon request, recognize and bargain

with District 1199E, National Union of Hospital

and Health Care Employees, Retail, Wholesale and

Department Store Union, AFL-CIO, as the exclu-

sive collective-bargaining representative of our

employees in the appropriate unit. And, if an

understanding is reached, embody such under-

standing in a signed agreement.

Since it has been found that we unlawfully

discharged Wilma Peay and Vera Owens — WE

l3a

WILL offer them immediate and full reinstatement

to their former jobs or, if such jobs no longer exist,

to substantially equivalent jobs, and WE WILL pay

them for the earnings they lost because of the

discrimination against them, plus 6-percent inter-

est.

All our employees are free to become or remain, or

refrain from becoming or remaining, members of a

labor organization.

MuLtTi-MEDICAL CONVALESCENT AND

NURSING CENTER OF TOWSON

(Employer)

Dated = —_

, (Representative) (Title)

This is an official notice and must not be defaced by

anyone.

This notice must remain posted for 60 consecutive

days from the date of posting and must not be altered,

defaced, or covered by any other material. Any

questions concerning this notice or compliance with its

provisions may be directed to the Board's Office,

Federal Building, Room 1019, Hopkins Plaza, Balti-

more, Maryland 21201, Telephone 301-962-2772.

l4a

APPENDIX C

United States of America

Before the National Labor Relations Board

Division of Judges

Case Nos. 5-CA-7287, 5-CA-7521 and 5-RC-9304

Multi-Medical Convalescent and

Nursing Center of Towson

and

District 1199E, National Union of Hospital and

Health Care Employees, Retail, Wholesale

and Department Store Union, AFL-CIO

DECISION

Statement of the Case

BENJAMIN B. LIPTON, Administrative Law Judge:

Cases Nos. 5-CA-7287 and 5-CA-7521 present a consoli-

dated complaint by the General Counsel’ alleging that

Respondent engaged in certain independent violations

of Section 8(a)(1); that Respondent discharged Wilma

Peay and Vera Owens in violation of Section 8(a)(3):

and that a remedial bargaining order (based on

evidence of a majority of union authorization cards)

should be issued. Respondent denies the alleged

violations. In Case No. 5-RC-9304, pursuant to a

Decision and Direction of Election by the Regional

Director, an election was conducted on May 14 in a unit

generally consisting of the unlicensed service and

maintenance employees at Respondent’s nursing home.

The results of the election show that, of 34 eligible

' All dates are in 1975, unless otherwise shown. The

Union’s charge in 5-CA-7287 was filed on May 12, as to

which the complaint issued on July 9 and was amended on

July 25. In 5-CA-7521, the charge was filed on September 10,

—— on October 29, and the complaint issued on the

a ate.

l5a

voters, 15 votes were cast for the Union, 16 votes were

cast against the Union, and | vote was challenged. The

Union filed timely objections. On July 25, the Regional

Director issued his formal report on the objections. As

to Objection No. 1, he found substantial and material

issues of fact and ordered consolidation of the com-

plaint and representation cases for the purpose of

hearing. Certain of the election objections in issue are

broadly coextensive with the complaint allegations of

Section 8(a)(1).

On September 16, September 24, September 25,

October 21, 1975, and January 14, 1976, a hearing in

this consolidated proceeding was held before me in

Baltimore, Maryland. Posthearing briefs from the

General Counsel and Respondent have been duly

considered.

Upon the entire record in the cases, and from my

observation of the demeanor of the witnesses, I make

the following:

Findings of Fact

I. Jurisdiction and Labor Organization

Respondent is engaged in the operation of a proprie-

tary nursing home in Towson, Maryland. During the

year preceding issuance of the initial complaint,

Respondent had a direct inflow in interstate commerce

of materials valued in excess of $50,000, and had gross

revenues in excess of $100,000. It is admitted, and I

find, that Respondent is engaged in commerce, and that

the Union (as named in the case caption) is a labor

organization, within the meaning of the Act.

Il. The Unfair Labor Practices

A. Introductory Statement

Respondent’s facility involved herein commenced

operation on July 1, 1974. (Mr. and Mrs.) Alex and Rose

Burkoff are Respondent’s “administrators,” i.e., holding

the highest management positions. Rose Burkoff, as

she testified, “is” the administrator at another facility

called the Mt. Sinai Nursing Home, at an undisclosed

l6a

location.’ She gave testimony, in substance: The Union

has had a collective-bargaining agreement with Mt.

Sinai since 1969; she and the Union’s president had a

gentleman’s agreement’ reached several weeks before

July 1, 1974, that he would “let her get off the ground

floor” before he tried to unionize Respondent, and

Respondent would recognize the Union on the basis of a

card count; on February 26, a meeting took place at the

office of Respondent’s counsel for the purpose of

conducting a card count, and no agreement was

reached that the Union had established a card

majority. It is evident that, on December 23, 1974, the

Union filed a representation petition, — clearly indica-

tive that the Union was proceeding with its organiza-

tional campaign at Respondent. For reasons not shown.

the Union withdrew its petition on January 20. On

April 7, the Union again filed a certification petition.

On April 21, the parties met at the Board office and

entered into a stipulated record in the representation

case. As already indicated, a directed election was held

on May 14, following which the Union filed objections

alleging interference with the election.

Allegations appear in the testimony that threats or

predictions of layoff and firing were made to employees

by particular supervisors and an agent of Respondent.

Relating to the precise question of whether an employer

engages in permissible predictions of adverse affects of

unionism, as contrasted with coercive and unlawful

threats, the Supreme Court in Gissel was explicitly

sensitive to “the economic dependence of the employees

on their employer and the necessary tendency of the

former, because of that relationship, to pick up intended

implications of the latter that might be more readily

dismissed by a more disinterested ear.”® It is well ty

note that here the unit employees are essentially

unskilled menial help and, within my observation, are

* The corporate or financial relationship, if

these two facilities has not been aa. + /npameaaamamaaas

* N.L.R.B. v. Gissel Packing Co., 395 U.S. 575, 618.

lia

relatively unsophisticated. Therefore, it 1s fair to say

that these employees are more that normally apt “to

pick up intended implications” and statements made to

them without comprehending subtle distinctions. These

are circumstances which are properly part of the

context in which the issues arose.

In a defensive vein, Respondent seeks to portray an

image that it reacted benevolently to the Union’s

organizational efforts and that it was receptive to

recognition of the Union on the basis of a voluntary

card check. I regard such arguments as a sham,

particularly in light of Respondent’s actual conduct and

tactics hostile to union representation and clearly

intended to thwart the employees’ support of the Union.

B. Restraint and Coercion

I. Mildred Shiflett

Shiflett is the supervisor of housekeeping, with about

six employees in that department. During the morning

on February 28, agents of the Union, David Simon,

Carolyn Green and one other, were on the premises of

Respondent. After a telephone call to Burkoff, who was

then away from the facility, certain supervisors made

arrangement to permit the employees who so desired to

meet with these agents in the employees’ lounge.’ The

employees were paged by loud speaker.’ Employees

Josephine Medley, Eunice Brandon and Vera Owens

testified for Ceneral Counsel; employee Rosalee Thomp-

son and Supervisor Shiflett testified for Respondent.

Each identified the others as being present. Directly

concerned with the question of whether Shiflett en-

gaged in coercive conduct, my findings are in the

affirmative.

‘ Rose Burkoff had earlier granted Simon’s request for

leave to enter the home for solicitation purposes.

5 On March 18, Union Agents Simon and Green came

again to the nursing home. On this occasion, Burkoff allowed

only Green, and not Simon, to enter the facility. Employees

were paged, and were solicited by Green in the employees’

lounge for a limited time. No allegations are involved

relating to this visit.

18a

Shiflett spoke to some of the housekeepers in the

lobby before they entered the employees’ lounge to meet

with the union agents. I credit Brandon’s testimony, in

substance as corroborated, that Shiflett said — Burkoff

did not want the employees to sign cards, and if they

signed the cards (i.e., selected the Union as representa-

tive) three of the housekeepers would have to be laid off,

because Burkoff could not afford to pay union wages.

Medley’s version placed such a statement by Shiflett as

occurring 2 or 3 days after February 28. Thompson

testified that, in a conversation with housekeepers

about a month after February 28, Shiflett indicated

that, if the Union came in, some employees would be

laid off because “we would have a (union) raise.” And

Burkoff could not “afford to pay those prices.” Then

Shiflett added that she did not know who would be laid

off; it could even be herself. Medley also testified, as

did Owens, that on February 28, Shiflett told the

employees that, if they signed for the Union, they would

be “fired.” In the circumstances shown, with the Union

permitted to solicit within the facility, such a direct

threat of discharge for signing cards would seem

implausible. I cannot conceive that Brandon, being

present, would not have heard such a threat. This

significant discrepancy among General Counsel’s

witnesses, present at the same event, is not elsewhere

clarified. I am therefore constrained not to find that

Shiflett stated such a threat of firing employees, and

dismiss this latter allegation in the complaint.

Medley also testified that, on February 28, Shiflett

was in the employees’ lounge, saw her sign an

authorization card, took the card out of Medley’s hand,

and threw it in the trash can. I accept this aspect of her

® Shiflett testifie’ that, sometime subsequent to February

28, she was asked ¥ some employees whether they would be

laid off or fired if the Union came in, and she replied she did

not know — “Some of us will probably go and I may be one of

them.” In her direct examination, Burkoff responded with a

denial to the question whether she told Shiflett at any time

~~, re Union got in, 50 percent of the employees would

7 1 ‘oa

19a

testimony, corroborated by Owens who witnessed the

occurrence. Shiflett testified that, before the meeting

started, one of the union agents in the lounge (in the

presence of other employees) handed her a union card.

She said, — “here is what I think about your card,” —

and “tore it up and threw it in the trash can.”’ Shiflett

and Thompson testified that, after the meeting, em-

ployees were sitting around the lounge. Thompson first

asked Shiflett what to do with the cards and then took

her own card and other blank cards lying on the table

and threw them in the trash can. General Counsel has

not alleged and does not argue that an independent

violation was committed. I deem this evidence pertinent

to show the strong hostility of Supervisor Shiflett to the

signing of union cards, which attitude she pointedly

displayed to employees on February 28. Elsewhere

Shiflett testified, beyond credence, that at all times she

was unaware that any of the housekeepers had

sympathies for the Union. The elicited denials of

Shiflett and Thompson, to the extent inconsisent with

the findings above, are not credited.

In my opinion the violation is substantially the same

in Shiflett’s uttering the threat of layoffs, — whether or

not she specified that 3 of the 6 housekeepers, or 50

percent of them, would be so terminated; or whether or

not it occurred on February 28, within a few weeks

thereafter, or on more than one occasion.

If an employer undertakes to inform employees of the

effects unionization will have on his company, the

prediction “must be carefully phrased on the basis of

objective fact to convey an employer’s belief as to

demonstrably probable consequences beyond his con-

trol... .” (Emphasis added.)* What Shiflett stated to

the employees was not a prediction capable of objective

proof of consequences beyond Respondent’s control.

The free collective-bargaining process does not permit

7 At another point, Shiflett flatly stated she did not go into

the lounge “while the union was there.” And Thompson

testified to corroborate such fact.

® N.L.R.B. v. Gissel Packing Co., 395 U.S. 575, 618.

20a

the advance assumption that any concession is required

by either side. (Section 8(d)) Respondent could not

objectively forecast that dealing with the Union as a

statutory bargaining representative would inevitably

result (1) in higher employee wages and benefits, and

(2) in its inability to meet such higher cost without

having to reduce the current complement of employees.

In any case, it cannot be regarded that the language of

Shiflett was so “carefully phrased” as to eliminate

reasonable implications in the minds of the employees

that the projected layoffs were within Respondent’s

discretion and control. The Supreme Court in Gissel

found on the precise issue that “the Board could

reasonably conclude that the intended and understood

import of that message was not to predict that

unionization would inevitably cause the plant to close

but to threaten to throw employees out of work

regardless of economic realities.’’® I arrive at the same

conclusion here, and find Shiflett’s threat of a layoff

seriously violative of Section 8(a)(1).

2. William C. Connor

Connor is employed as a public school teacher and as

a part-time security guard under the auspices of the

Pinkerton company. From October 1974 to May 1975, he

was assigned as a guard at Respondent’s premises. He

worked along with Rose Burkoff almost on a daily basis

and had occasion to discuss with her the union

campaign.

On April 21, after Burkoff returned from the Board

hearing in the representation case, she called Connor

into her office. She mentioned that Wilma Peay and

Katie Woods were at that meeting and she was

particularly surprised to see Peay. She wanted him to

“feel out,” to see if he “could discover the feelings of the

employees as to their pro or con union,” since he had a

good rapport with them.”° And she asked him to report

* Id. at 619. And see, eg., N.L.R.B. v. Jimmy-Richard

Company, Inc., 90 LRRM 3258 (C.A. D.C. December 8, 1975).

‘© He testified that in fact he had a good relationship with

the employees.

eee ee

2la

back to her. She gave Connor copies of the Union’s

financial statements, which she explained to him.

Among other things, she told him, if the Union won the

election, she could not afford to pay union wages, and if

she had to, she would run the facility with LPN’s

(licensed practical nurses) and RN’s (registered nurses).

Thereafter, on several occasions with different em-

ployees, Connor had conversations to find out what

their sympathies were regarding the Union. Mainly he

spoke to about 10 employees on the 3 to 11 p.m. shift. He

discussed with them the financial statements of the

Union’s local and international.'' He tried to convince

them that the Union was in financial difficulties and

the parent was obviously helping the local. The

discussion was “more or less about who was feeling

prounion or antiunion.” He said Burkoff had told him

that, if the employees voted for the Union, she would

have to run the staff with LPNs and RNs. He expressed

his own opinion while he tried to impress upon the

employees that it could probably mean their jobs, that

Burkoff was losing money, could not afford union

wages, and would have to lay off some of the

employees. They should remember that, although there

might be benefits deriving from the Union, Burkoff

would still have the “final say-so as far as hiring and

firing.” After April 21, he haa discussions with Burkoff

from time to time, and he is sure that he verbally

reported to her the names of employees and their

feelings towards the Union. On April 29, he wrote a

note to Burkoff and left it on her desk. As will be

specifical!y shown infra, he commented on the general

attitudes of the employees, and specifically concerning

‘t Burkoff testified that Respondent distributed copies of

the Union’s financial statements to each supervisor and

placed a “batch” of them on the desk where Connor normally

sat. At the same time, she denied that she ever told Connor to

distribute these statements, and denied she had any

information that Connor was involved in finding out the

employees’ sentiments concerning the Union. She answered

that she does not care one way or the other whether the

Union comes into Respondent’s facility.

22a

the union activities of Peay and Woods. After Peay was

discharged on April 30, Burkoff wanted him to stop

feeling the employees out, to “drop the whole thing,”

because it was getting too involved.'? The foregoing in

essence reflects the account given by Connor. Burkoff’s

denials as to portions of these findings'’ are not

credited. My distinct opinion is that her testimony in

numerous instances was shifting, evasive, dissembling

and generally untrustworthy.

Initially, I find that Respondent authorized and

utilized the services of the security guard, Connor, to

operate covertly among the employees, exploiting their

confidence and trust, in order to ascertain and report to

Respondent, inter alia, the identities of those employees

who favored and those who opposed the Union. This is

clearly within the concept of employer espionage early

condemned by the Board and the courts as a fundamen-

tal intrusion into the protected activities of employees. '4

Accordingly, it is held, within the framework of the

complaint, that such conduct by Respondent violated

Section 8(a)(1) of the Act.

There are subsidiary questions whether certain

statements of Connor in the course of his “feeling out”

the employees are imputable to Respondent as unlaw-

fully coercive. In my opinion, the evidence does not

permit the inference that the employees were reasona-

bly led to believe that Connor, in what he told them,

was an agent, supervisor or spokesman for Respondent,

albeit he was an authorized agent in regard to his

‘2 Burkoff testified she merely told Connor to stop

interfering with the employees.

'S Such as, that she asked him to feel out the employees

and to report back, that she provided him with the formal

statements of the Union, or that he gave her any oral reports.

Much of this testimony was elicited by leading questions.

'4 E.g., Consolidated Edison Co. v. N.L.R.B. 305 U.S. 197,

230 (1938); Harvey Aluminum, Inc., 139 NLRB 151, 200, and

cases cited therein. And see Rust Sales Co., 157 NLRB 1681,

concerning the use of a detective agency to spy and report on

employees’ union activities.

a _

23a

undercover assignment.'® Therefore, the specific com-

plaint allegations that he engaged in coercive interroga-

tion of employees and that he warned employees of

termination because of their union sympathies —

cannot stand.'®

3. Al Rhine

He hired and directly supervised Jacqueline Brooks, a

dietary aide. Brooks was active in soliciting union

cards. On April 22, Rhine asked Brooks if she had

attended the Board (representation) hearing the pre-

vious day. She replied in the negative. He indicated that

Burkoff had asked him to find out if any of his girls

were at the hearing. He told her Burkoff said, if the

Union got in, he would have to let go 50 percent of his

employees because she could not afford to pay union

wages.'’

'° Cf., Kolpin Brothers Company, Inc., 149 NLRB 1378,

enfd. 379 F.2d 488 (C.A. 7), and Atlas Engine Works, Inc., 163

NLRB 486, where the employees enlisted by the employer to

engage in antiunion activities used threats and coercive

arguments within the direct authority given by the employer.

'6 Moreover, there is no evidence of actual conversations

and therefore no basis for applying the usual tests for

determining whether the speech used constituted coercive

interrogation. And his statements concerning the possibility

of layoffs and loss of jobs were characterized as reflecting his

personal opinion. An area of doubt is presented whether

Respondent should be held accountable for his statement to

employees, that Burkoff told him, if the Union came in, the

facility would be run by LPNs and RNs. There is testimony

elsewhere regarding such a statement from Respondent with

substantial ambiguity as to the meaning intended and

interpreted. A witness for General Counsel, employee

Jacqueline Brooks, testified that Burkoff indicated at a

meeting with employees that, if the employees engaged in a

strike, she would have the LPNs and RNs run the building. It

is plausible and probable that, in essence, this is what

Burkoff sought to convey to Connor. In the particular

circumstances, I find no independent violation in this

statement to employees made by Connor. Cf. American Door

Company, Inc., 181 NLRB 37.

'7 Rhine was not called by Respondent.

24a

In the context of the established union animus and

contemporaneous unfair labor practices, I find that

Rhine engaged in coercive interrogation of Brooks.'* In

addition, Section 8(a)(1) was violated in Rhine’s threat

that employees would be laid off if the Union were

selected as their representative.

4. Rose Burkoff

She spoke to assembled employees at a preelection

meeting on May 5.'° She testified that the purpose of

the meeting was to clarify “rumors running rampant”

through the facility. These rumors were brought to her

attention through the various supervisors, and not by

any employees. For her part, Marian Causey, an

assistant to Burkoff and the “administrator and head

of recreational therapy,” testified that Burkoff

“planned the meeting” at the request of certain

employees who had approached her, Causey. The

rumors described by Burkoff were, e.g., that there were

going to be wholesale firings; that she was going to run

the place with LPNs and RNs; and that if they signed

cards they would be terminated. As already shown,

certain statements of this nature had earlier been made

to the employees by supervisors, and by the guard,

Connor.

General Counsel’s witnesses gave testimony concern-

ing the meeting, in relevant substance, as follows: By

Denise Erwin: Burkoff said, if the Union came in, there

would have to be paid increases, and she would have to

lay off employees because she could not afford to pay

the increases. By Josephine Medley: Burkoff stated she

could not afford to pay union wages and, if the Union

came in, she would have to lay off some employees. She

also said that, when she got some more money, she

would divide it and give her help more money. By

Eunice Brandon: Burkoff said she could not afford to

18 Blue Flash Express, Inc., 109 NLRB 591.

‘9 Minor variations in the date were given by certain

witnesses. It is undisputed that only one meeting was held

about this time preceding the scheduled election on May 14.

25a

pay union wages. If she got more patients, she would

pay even more than the Union would. By Jacqueline

Brooks: Burkoff asked the employees to vote no in the

election because she could not afford to pay union

wages. If the Union did get in, the employees would

engage in a strike, and she would then have the LPNs

and RNs run the building. If the Union did get in, she

would have to lay off 50 percent of the people.

Respondent’s witnesses testified concerning the

meeting. By Virginia Miller: Answering a question,

Burkoff said there would be no blanket firing but “there

may, however, be layoffs because of lack of funds.” If

she were forced to raise wages, there were only so many

dollars to go around and “only so many employees

could be kept.’”’ No mention was made of any number or

percentage of layoffs. She said that, since it was a new

facility, “it was running in the red which was not at all

unusual.” If the employees stuck by her, when the

“census” went up, their pay wouid also go up. The

“census” referred to the number of patients in the

facility then about 30 as compared with the capacity of

120. The question was asked whether all the unlicensed

people would be fired and the facility run by licensed

people. Burkoff answered that this was impossible to do

because licensed personnel required more pay than the

unit employees. By Edward Rosenquist: Burkoff said

there would not be any blanket firing for signing cards.

If the Union came in and she had to increase the pay

with the same number of staff, she would have to lay

off some employees “to accommodate the money she

had.” She would have to increase the wages if the

Union came in. “Theoretically she stated” that if she

had to increase the pay, — “it would be logical that she

would have to lay off some people.” If the employees

would “give her a chance to prove herself, then she

could try to do her best to accommodate the standards

she could set up.” She showed them the Union’s

financial statements and said that the Union’s need for

members to resolve a deficit problem was the only

reason the Union wanted to come in. By Supervisor

26a

Shiflett: Burkoff said, if the Union came in and asked

for higher wages, “she could not afford to pay higher

wages so she would have to lay some of the employees

off.” If everybody would stick with her and give her a

chance, she would increase the pay when she got more

patients. Shiflett herself was repeatedly told about this

and she passed it on to her housekeepers. Burkoff said

nothing about running the facility with LPN’s and

RN’s. By Supervisor Causey: Burkoff said (in the event

the Union came in) “there would have to be layoffs if

we did not improve our patient census.” If the Union

did get in and made such demands for salary. . . it was

true there would be layoffs.”’ Answering whether there

would be mass terminations if the Union was selected,

Burkoff indicated that the employees who remained

would certainly have their salaries increased as the

patient load increased. By Rose Burkoff: Asked about

mass layoffs, she said — if she were placed “in a more

difficult position financially then she was already in,”

she would “have no choice but to lay off some people”

because the census then was 35 patients out of 120 beds.

She did not tell the employees to “stick with” her but

said that, if they gave her a chance, as the census

improves she will give them increases. She did not say

she would “fire” all nonlicensed personnel and run the

facility with RN’s and LPN’s.

I find, in substance, Burkoff told the employees, if

they designated the union in the forthcoming election,

that she would have to grant pay increases demanded

by the Union, that she could not afford to pay such

increases, and that she would have no alternative but to

lay off some employees. This essentially reflects the

testimony of Erwin and Medley, as well as Supervisors

Shiflett and Causey. I regard Burkoff’s version as

strained and equivocal. Only Brooks testified that

Burkoff specified she would have to lay off 50 percent of

the unit employees. It is not my finding that such a

statement was made by Burkoff at this meeting. Even

assuming that it had been made, the result I reach

would not be affected. However, it is to be noted that

27a

statements describing a number or percentage of

layoffs were earlier made to the employees by Supervi-

sors Shiflett and Rhine, and it may reasonably be

assumed they emanated from internal management

sources. In the preelection meeting on May 5, Burkoff

also emphasized that the employees would receive

raises in pay as and if the census of patients increased

in the facility.” General Counsel has not alleged the

promises of wage increases or benefits as violations,

and none is found on the state of this record.

Nevertheless, it is pertinent to consider from the

vantage point of the employees that Respondent was

holding out prospects of raises based upon improve-

ment in the census while simultaneously asserting it

could not afford to pay union wages and, if the Union

came in, it would inevitably result in layoffs. Burkoff

made no comment that, if the census improved,

Respondent would be able to afford Union-negotiated

raises. It is not conceivable that Burkoff’s statements

on their face were objectively persuasive to the

employees that layoffs upon the advent of the Union

would result as an economic necessity. Indeed, the

likely impact upon them was that of the “carrot and

stick” approach in Respondent’s efforts to influence

them away from the Union. Viewing all the testimony

as to the import of Burkoff’s statements, it can scarcely

be deemed that these were “carefully phrased” predic-

tions based on objective fact conveying demonstrably

probable consequences beyond Respondent’s control.?!

Rather I find they were thinly disguised threats.

Accordingly, upon the reasoning and authority dis-

cussed above concerning similar statements made by

Supervisor Shiflett, it is concluded that Burkoff’s

20 Observation is made in the general context that, at the

time of the hearing on September 24, the unit complement

had increased to 62 employees from the 34 employees eligible

at the election on May 14, — with the implication that at this

later date a substantial increase in the “census” must have

been achieved.

2! Gissel, supra, 395 U.S. at 618.

28a

statements depicting the eventuality of layoffs vio-

lated Section 8(a)(1) as alleged.

C. Discharge of Wilma Peay

Peay was employed from July 22, 1974, until April 30,

1975, as a “nurse’s assistant,” earning $2.25, then

raised to $2.35 an hour, and was admittedly regarded

by Burkoff as an excellent worker. She had signed

cards, attended union meetings, appeared on behalf of

the Union at the representation hearing on April 21,

and agreed to be the union steward “if the Union was

voted in.”

Relating to her discharge, the testimony in material

substance of the security guard, Connor, is given

credence. The incident relied on by Respondent stems

directly from Connors’ unlawful conduct of engaging in

espionage as to the employees’ union activities. Con-

flicting testimony of Burkoff and Causey is rejected.

On April 21, Connor was summoned and he reported

to the office of Burkoff after she returned from the

Board hearing.”? She said she was surprised that Peay,

of all people, was at the hearing. Her attorney had

informed her that Peay was a member of the Union,

and was salaried by the Union to act as an organizer

while working for the facility. Peay would not care

about losing her job because she was being paid by the

Union.

22 In passing, I note Burkoff's changing testimony, i.e.,

that she had absolutely no conversations with Connor

concerning the Union; then that she did not “specifically”

have such conversations; then that it took place only when

he brought it up; and finally what they discussed was that

“they (the Union) were trying to come in and over and

over and over again, they come in and they come in.”

23 Peay testified that, on April 21, Connor informed her of

his conversation with Burkoff. Connor related that Burkoff

insisted Peay was a paid worker for the Union and wanted

her out of there regardless of what they could get on her. He

indicated Burkoff also said “‘she would just have to show

those coconut heads who was boss.” Connor testified that, as

he recalled, the latter statement was made by him on April

30, as will described infra. Peay’s testimony is taken for the

29a

Following April 21, and his espionage assignment

arranged that day, Connor undertook discussions with

employees, as earlier noted. In the evening on April 29,

he prepared a report to Burkoff and left it in a sealed

envelope on her desk, viz.:

April 29, 1975

Dear Mrs. Burkoff,

In my opinion Mrs. Peay, who gives the outward

appearance of being a professional lady, is nothing

more than a rabble-rouser. She is saying things

like ‘I know about Rose Burkoff. I’ve heard she is

crooked.’ ‘When I go the union will be here.’ etc.

Katie Woods is the typical black who needs to be

led. She has found a leader in Peay. Woods says

she is going to be fired anyway so the hell with it.

Many people, I feel, are afraid to vote no because of

the nasty consequences that might follow. Conse-

quences that 1199E is noted for. They feel the

names of those who vote against will be known.

The morale of the staff is sinking. Peay walks

around letting people know that she doesn’t care if

she is fired or not. Others are really beginning to

‘sweat’ their jobs. Some said ‘Peay has a husband.

What am I going to do. J have to support myself.’

Sincerely,

Bill

On April 30, after he returned home from his teaching

position about 3:30 p.m., he received a call from Burkoff

to come immediately regarding his note. Soon thereaf-

ter in Burkoff’s office, she told him she was going to

have to terminate Peay because of the statement

“calling her a crook.” He protested that it was a

“hearsay conversation,” he didn’t intend it to be used in

such a way, and he thought it was wrong to terminate

her for this reason. Burkoff then said that, when he

truth of what Connor told Peay, but not for the truth of what

Burkoff actually told Connor. The testimony is generally

relevant to show such background in consideration of the

circumstances attending Burkoff's confrontation with Peay

on April 30.

30a

submitted his application for summer employment and

it was accepted by Respondent, — “you became a

member of the staff and you have to back..me up.

Administrators have to stick together.”** Burkoff stated

she was going ahead with this, to fire Peay, and would

call the staff together over the public address system —

“to set an example.” She said she “would show those

coconut heads who was boss.” The Burkoffs, Causey,

Peay’s supervisor (Igou), and Connor convened in the

hallway adjacent to the multipurpose room. The staff

was already seated 15-20 feet away in the multipurpose

room with the door open. Peay, having been summoned,

entered and was questioned by Burkoff. Burkoff said

she had a report Peay “had called her a crook,” she was

“not a crook,” and she proceeded to read to Peay the

portion from Connor’s report. Connor testified: Peay

“looked like she didn’t know what all was happening”

and, responding to Burkoff, — “if I recall correctly, Mrs.

Peay said I did or something to that effect.” Burkoff

then told Peay she had no other recourse than to ask

her to get her things and leave the premises because she

would not tolerate “anyone saying this” about her.

Connor testified that, in the late evening on Anril 29,

he had a discussion with employees Peay, Erica

Pinkney, and Kathy McCullough in the employees’

lounge. He was going over with them the “financial

statements, public records, federal statements” of the

local and parent of the Union. He had also voiced his

personal opinion concerning Burkoff’s “losing money”

and the possibility of layoffs because of inability to pay

union wages. Peay remarked, — “don’t tell me about >

that Rose Burkoff, I have heard she is a crook.”

Peay’s version varied, but not materially, from that of

Connor. On April 29, in the employees’ lounge, Connor

had been talking to Peay about the Union. He went to

his desk in that area and then called Peay to the desk.

“4 Then assigned as a part-time Pinkerton guard, Connor

was approached by Burkoff and Causey in April to take

employment during the coming summer months as an

assistant to Causey.

3la

He showed her the Union’s financial statements,

arguing that the Union just wanted the financial help

of the employees. Peay commented that the statements

are not necessarily true. Connor then indicated, — “‘well

here are the statements from Multi-Medical.” Peay

countered, — “well, they could be crooked too.” And he

said, “no, the Federal Government had printed these

statements and they were true.”25 McCullough and

Pinkney were sitting in the lounge about 12 feet away.

From the rambling manner of Connor’s testimony on

this issue, I have doubt that Peay used the exact

language he ascribed to her. However, my finding is

that she did remark to the effect that she had “heard”

Rose Burkoff is a “crook” or “crooked” in the context of

the discussion concerning the financial statements.

Continuing, Peay testified that on April 30, about 4:30

p.m., she was summoned and appeared in the sitting

area across from the multipurpose room. Present were

Mr. and Mrs. Burkoff, Connor and Causey. She

observed that some employees were in the multipurpose

room. Rose Burkoff confronted her — “I understand you

made a statement that I know all about Rose Burkoff

and she is a crook.” Peay replied that she did not recall

making such a statement. Burkoff then said there was

no need for her to “plead temporary insanity,” and

ordered her to punch out the timeclock.”

25 | do not find that Peay adverted to the Company’s own

financial statements. As I construe the testimony, she was

inarticulately referring first to the union statements made

available by Multi-Medical and then to the “Federal

Government” reporting and disclosure forms filed by the

Union.

26 At the conclusion of Peay’s direct examination, General

Counsel furnished Respondent, on request, Peay’s pretrial

affidavit of eight pages. There was virtually no cross-

examination of Peay. In addition, it is noted that Mr. Burkoff

and Supervisor Igou did not testify; nor did Respondent call

employees Pinkney or McCullough. (Indeed, Pinkney refused

to honor General Counsel’s subpoena.) Burkoff and Causey

testified that, before calling Peay, they questioned Pinkney,

and that, at the discharge interview, when Peay said she did

not remember making the remark read to her from Connor’s

32a

Conclusions

My decision on the question of Peay’s discharge is

based, inter alia, upon the following considerations in

summary: (1) Peay’s unguarded leadership activities on

behalf of the Union. (2) Burkoff’s hostile reaction upon

finding Peay attended the Board representation hear-

ing on April 21, and her expressed belief that Peay was

_ a paid union organizer. (3) Burkoff’s use of Connor as

an espionage agent, and his invasion and violation of

Peay’s confidence in obtaining and reporting to Burkoff

on Peay’s union conduct, including the remark in

question critical of Burkoff. (4) The fact that on April 29

Connor was engaged with Peay in a two-party conver-

sation, purportedly overheard from a distance by two

employees who were not called to testify. (5) Connor’s

written report to Burkoff on April 29, pointing to Peay

as a “rabble-rouser” and as a dedicated proponent of

the Union, — while quoting Peay as stating she had

heard Burkoff is a crook. (6) The essential nature of

Peay’s remark regarding Burkoff. It was made in

limited reference to the reliability of the Union’s

financial statements given to Connor by Burkoff for

campaign propaganda. It appears as an offhand

comment by an obviously unsophisticated domestic-

type worker. It was not articulated for general circula-

tion and, in my opinion, was not uttered with intended

or understood malice against Burkoff personally. (7)

Burkoff decided summarily to discharge Peay before

confronting her, — Connor’s protests notwithstanding

that he did not intend such a result and that it was

wrong. And Connor was told he had to back her up;

“administrators have to stick together.”

Such a remark as attributed to Peay is certainly not

to be condoned. Nevertheless, I do not accept as earnest

Burkoff’s protestations of alarm concerning the damage

report, Connor and Pinkney, in contradiction, asserted they

heard her make the remark. Connor did not so testify and

was not cross-examined on the point. Employee Denise

Erwin, who overheard the conversation from the multi-

purpose room, did not so testify.

33a

to her reputation. It was Burkoff herself who took pains

broadly to publicize Peay’s derogatory comment. Nor do

I find substance in Respondent’s arguments that failure

to discipline Peay would have adverse effects upon the

patients and the operation of the “fledgling” facility. In

the experience of industrial conflict, it is well known

that employees among themselves make strong re-

merks concerning an employer in the heat of a union

campaign. At the time she made the remark, Peay was

involved with Connor, at his initiative while other

employees were present, in a discussion concerning the

Union’s drive. She was therefore engaged in a protected

activity, as I find. The further question, however, is

whether her offense, in the remark affecting Burkoff,

was of such gravity as to forfeit the Act’s protection.?’

In all the circumstances present, I hold that it was not.

Burkoff’s desire to get rid of Peay because of her

organizational activities is inferrably quite plain. With

conspicuous alacrity, she seized upon this incident as a

pretext to accomplish such purpose. It is my finding

that, in discharging Peay, Burkoff was motivated in

virtual entirety by her determination to remove Peay as

an outstanding employee activist and paid worker for

the Union, and to “set an example” in this respect of

discouraging employees from their support of the Union

in the impending election. Accordingly, the violation of

Section 8(a)(3) is sustained.

It is also alleged in the complaint that Respondent

violated 8(a)(1) “in assembling and requiring employees

to witness the discharge of a known Union adherent.”

Connor testified that, in her office on April 30 before

confronting Peay, Burkoff indicated she would call the

staff together “to set an example.” Some employees

were present in the multipurpose room and heard the

discharge interview take place outside their door.

27 Cf. Keystone Ship ngineering Company, 113 NLRB

596, cited by Respondent, — where the Board held the

misconduct of an employee was serious enough to foreclose

any speculation that it was used as a pretext to discharge

him because of his union activities.

34a

Thereafter, Burkoff spoke briefly to the assembled

employees in the multipurpose room. Employee Erwin

testified Burkoff told them she had just fired Peay and

wanted them to be “a witness or something.”’*® In

discharging Peay and thereby discouraging union

membership, Section 8(a)(1) was derivatively violated.

Nothing was said by Burkoff at the discharge interview

or directly to the employees in the multipurpose room

which can be regarded as independently coercive apart

from the discharge itself. I have not been cited, nor am I

aware, of any case in which Section 8(a)(1) is held to be

violated by an employer calling or having employees

witness a discharge which is found to be discrimina-

tory. While it may give emphasis to an unlawful act of

discharge, I hold that it creates no additional violation.

This allegation is therefore dismissed.

D. Discharge of Vera Owens

Owens was employed since October 15, 1974, as a

housekeeper assigned to the second floor of the west

wing, encompassing about 15 bedrooms, as well as

bathrooms, halls, lobby, solarium and elevator, as her

specific responsibility. She performed a wide variety of

cleaning and miscellaneous duties under the standing

instructions she had since she began employment. One

of her major and most time consuming jobs was to

scrub the floors in the entire wing every day. All six

housekeepers in the department worked on 8-4:30 p.m.

shift. Her supervisor, Yorkevitch, was terminated about

1 month before she, Owens, was discharged on July 12.

During this period, Mildred Shiflett was his assistant

but did not directly exercise any authority over Owens.

Shiflett became the housekeeping supervisor upon

Yorkevitch’s departure, as appears, about early June.?’

Owens was particularly active for the Union. In

October 1974 and January 1975, she accepted authoriza-

28 As the evidence actually indicates, the employees were

not assembled in order to witness the discharge in their

physical presence.

29 Unrefuted testimony of Owens.

35a

tion cards from union agents being distributed at

Respondent’s driveway entrance, and she mailed her

signed cards to the Union. She also signed cards during

the Union’s meetings within the premises on February

28 and March 18, supra. Shortly following this meeting

in February, near the entrance to the facility as she was

reporting to work, Union Agent Simon openly handed

her about 15 blank cards. As she testified, this was

observed by the security guard standing within a glass

door 20-25 feet away.*” During the course of the same

day, she distributed 8 or 9 of these cards to unit

employees in the employees’ lounge. She informed

employees on each of 3 occasions union meetings were

to be held, and in various conversations with employees

she urged them to support the Union. For several days

prior to the election, she wore a union button (1 inch in

diameter) on the lower right side of her uniform.

On Saturday, July 12, Owens received a telephone

call at home from Supervisor Shiflett. Owens testi-

fied: Shiflett told her — “your werk doesn’t meet my

approval and Miss Burkoff, and she said to let you go.”

Owens said she done her work and repeatedly requested

the reason for dismissal, but Shiflett would not give her

any specific reason. Shiflett also said, “You’re a

troublemaker and I’m going to get rid of you.” At the

end of the conversation. Owens remarked, “Well, you

won’t hear the last of this.”” On Monday, Owens called

to speak to Burkoff at the nursing home and was told

Burkoff was not in. As to the telephone call on July 12,

Shiflett testified: She told Owens she was terminated —

“because she didn’t do the work | asked her to do.” She

said nothing else to Owens at that time. In later

testimony, Shiflett added that they talked about what

Owens had been told to do, cleaning up food stains and

mopping the floors. Owens protested she had mopped

the floors, “but she hadn’t.”

40 The guard was other than Connor, who came on duty for

the afternoon shift. It is not alleged, and I do not find, that

the unnamed guard was an agent of Respondent or that he

actually reported such information to Respondent.

36a

Shiflett testified that, on July 10, she had assigned

Owens certain work to be performed, described below.

On July 11, Shiflett’s day off, she was not present to

observe Owens’ work. On July 12, Owens’ day off, when

Shiflett returned and found the specified assignments

to Owens had not been done, she decided to terminate

her. Then she called Owens at home. She alone made

the determination to discharge Owens.

Only these two witnesses, in direct conflict, testified

on the issue. In substantial respects, I find Shiflett’s

testimony changing, inconsistent, implausible, and

fabricated. Owens is credited.

Incidents on July 10

Shiflett testified that, early in the morning on July

10, she asked Owens to clean the elevator. Owens said

she was not going to clean the “damned thing.” She

later observed it had been cleaned but did not know (or

try to find out) if it had been done by Owens. On cross-

examination, Shiflect indicated she did “not really”

consider the elevator incident in her decision to dismiss

Owens. Owens testified she had only her standing

instructions, and was not given by Shiflett this or any

other specific duty to perform on July 10. Owens

indicated such an incident did occur at least 1 month

before her discharge; that she did clean the elevator at

that time; and that she did not then, or ever, tell Shiflett

she would not perform any assigned task.

Shiflett stated that, about lunchtime, she approached

Owens to clean some water from the floor of Room 202.

Owens said, — “why didn’t you clean it up, you was

upstairs?”” When Owens later said she could not find

the water, Shiflett showed her where it was and it was

then cleaned. In her later testimony, Shiflett admitted

that she did not rely on this incident in discharging

Owens.*! This testimony was specifically denied by

*! Respondent elicited numerous alleged faults in the work

performance of Owens on which it expressly relied in the

decision to discharge Owens. At the hearing, Respondent’s

counsel was repeatedly cautioned not to adduce incidents

which were not relied upon and therefore irrelevant. In its

37a

Owens. She testified such an incident occurred 3 or 4

weeks before July 10. Shiflett had instructed her to

clean a water spill in Room 202. It was just a little spot

and she wiped it up with a paper towel.

Shiflett related that she instructed Owens to clean the

entire floor in the wing, including some of the rooms.*2

Specifically, Shiflett told Owens about food which a

patient had spilled on the floor near her bed. Also there

was a “wax buildup” in the same room and around the

doors and beds of each room. The only way to clean up

the wax was to “strip it,” — a task she had never

previously asked Owens to do. When Shiflett returned

on July 12, the food and wax were still there. She took a

buffer and cleaned the wax up herself. Later she

testified that, after Owens’ termination, she sent four

girls to scrape the food off the floor and remove the

wax.** As already noted, Owens denied any such

instructions on July 10. Josephine Medley is Shiflett’s

assistant, and was the supervisor in charge of house-

keeping when Shiflett was absent. On July 11, Shiflett’s

day off, Medley had occasion to observe Owens and saw

nothing wrong in the performance of her work.

Regarding Owens’ duties, Shiflett did not discuss with

Medley before or after July 11 concerning the food spill,

wax buildup, or any special assignments given to

Owens. And Medley had never complained to Shiflett

about Owens’ work. Owens testified she had never been

criticized or warned concerning her work performance.

Incidents before July 10

Shiflett testified she spoke to Owens several times, 3

or 4 weeks before July 12, that her work was slow, she

was not mopping the floors, or cleaning the bathrooms,

brief, Respondent persists in its reliance on the elevator and

water incidents, as well as the numerous generalized

criticisms of Owens’ preceding July 10, discussed infra.

32 Undisputedly, it was Owens’ normal daily duty to clean

the floors.

33 None of these employees was called to testify. It also

appears that another housekeeper was normally assigned to

Owens’ area of work on her day off, e.g., July 12.

38a

and “just wasn’t cleaning.” About 2 months before July

12, several times she told Owens the work has got to be

done. “Sometimes she did the work, sometimes she

didn’t.”’** She spoke to Owens a “couple of times” about

going to sleep at the monthly “in service” meetings, —

in which the housekeepers were instructed how to mix

the chemicals for cleaning purposes. Owens sat asleep

through most of these. In April and May, after each

such meeting, she told Owens to pay attention because

it was important.*° On cross-examination, Shiflett

testified she “didn’t think too much” about the sleeping

incidents as basis for discharge. She had discharged

Owens because she could not follow orders, specifically

the food spill, the wax buildup, and “keeping the floor

clean.’’ Owens testified that she had dozed once, and

that Shiflett never mentioned anything to her about

sleeping during the “in service’ meetings.*®

Conclusions

Shiflett was intent to establish, as she initially

testified, (a) that she independently made the decision

to discharge Owens, and (b) that she had utterly no

knowledge of the union activities of Owens, or of any of

the housekeepers. On both points, I find the record

supports the contrary. It was extricated from Shiflett

that, during the week before Owens’ discharge, she

discussed with Rose Burkoff the failure of Owens to

follow her instructions. As to these additional incidents.

Shiflett said “it was the same thing,” — mopping floors

and cleaning bathrooms, elevators and beds. Neverthe-

less, Shiflett testified that, while she came to Burkoff

with complaints about Owens, she indicated she did not

want to get rid of Owens. However, Burkoff said, “if

she’s not doing her work, you’ve got to have somebody

that will do it . . . so do what you have to do, replace

34 These purported incidents took place before Shiflett

became the housekeeping supervisor, supra.

35 bid.

36 During the course of her testimony, Shiflett volunteered

that, when she first went to work, Owens was a good worker.

39a

her.”*’ Shiflett testified that it was not customary for

her to consult higher management before she makes a

decision to discharge; however, she has in fact done so

with everyone she terminated; but in this instance, on

July 12, she did not.

Considering Shiflett’s reluctance to admit that

Burkoff played any part in the decision, I regard this

latter testimony as carrying significant implications. In

view of the background of this record, it is highly

probable that Burkoff was more emphatic in her

instruction to Shiflett, and that the determination to

discharge Owens was virtually settled during such

discussion. I find that Burkoff and Shiflett then knew

or believed Owens was strongly supporting the Union.

When the union agents visited the premises on

February 28, Shiflett was in and out of the lounge while

employees were being solicited to sign cards; and she

graphically demonstrated to the employees her concern

and animus in opposition to the card signing. Shiflett

concededly was aware that in general conversations

she had with the housekeepers, and at the May 5

preelection meeting with Burkoff, Owens had asked

pointed questions regarding the Union. Connor had

been unlawfully engaged in ascertaining the identity of

employees favoring the Union, and he did orally report

back to Burkoff certain names, unspecified. Burkoff

testified that, at the preelection meeting, Owens

“started to say something about the way she was

planning to vote and I stopped her and | said I was not

interested.” Although this testimony is partially self-

serving, it is indicative to an extent that Burkoff would

likely infer Owens’ union activism. Additionally, in

their telephone conversation on July 12, Shiflett told

Owens she is a “troublemaker” and is going to “get rid

of her.38

Respondent’s persistent reliance upon every conceiva-

ble deficiency it could dredge up concerning Owens’

37 Burkoff was not called on this issue.

38 Not specifically denied by Shiflett.

40a

work performance, many if not all of which were old,

plainly concocted, or admittedly not considered by

Shiflett, — signifies its pretextuous purpose in attempt-

ing to justify Owens’ discharge. Shiflett had been

effectively instructed by Burkoff to replace Owens. It is

found that Shiflett’s compiaints regarding Owens’

refusal and failure to perform assigned work on July 10

and 11 were contrived. The issue of union representa-

tion was then apparently still pending, after the

inconclusive election. It is found that the true reason for

the summary termination delivered by telephone on

July 12 was Respondent’s desire to “get rid of’ Owens

as a staunch union proponent and to discourage

adherence to the Union by other employees.

Bearing in mind Respondent’s violations of Section

8(a)(1) and (3) earlier described,*’ I find and conclude

that it was discriminatorily motivated in discharging

Owens, thereby further violating Section 8(a)(3).

F. Remedial Bargaining Order

1. Authorization card majority

On April 21, the parties entered into a stipulation of

the record in the representation case in which it was

agreed, inter alia, that as of such date the Union orally

requested recognition and Respondent orally refused

such request.” The stipulation incorporates an eligibil-

ity list, for purposes of the election held on May 14, with

the names of 39 unit employees‘! employed during the

biweekly payroll period ending April 19. The list

represents the pertinent unit complement to determine

the question of the Union’s card majority. Signed

39 See, e.g., Ohmite Manufacturing Company, 220 NLRB

No. 177, at p. 9 of slip op.

‘9 The pending petition filed on April 7 also constituted a

continuing recognition claim. It is unnecessary to determine

whether there existed a continuing claim by virtue of the

petition previously filed and later withdrawn, and the direct

dealings between the parties.

*! By agreement at the hearing, the name of Clair DeShield

was added to the list.

4la

authorization cards of 21 employees were admitted in

evidence. Included is the card of Linda Shiflett, who

was subpoenaed by General Counsel and declined to

appear. I have compared her signature on the card

signed on April 23 and on her W-4 form and find they

are clearly identical. The card of Sarah T. Wheeler,

signed on April 2, and her W-4 form were offered and

placed in the rejected exhibit file subject to restudy.

General Counsel represented that, to verify Wheeler’s

signature, reliance had been placed on the anticipated

testimony of Union Agent Green based on pretrial

investigation. Green was hospitalized and unavailable

to testify until October 21. Green testified she gave the

card to Wheeler and received the signed card in the

mail; she did not see Wheeler sign. The parties were

subject to a ruling that only evidence relating to

Green’s testimony would be adduced on October 21.

General Counsel represents that therefore no attempt

was made to subpoena Wheeler. I have reexamined

these particular circumstances and admit into evidence

Wheeler’s authorization card and W-4 form. In doing so,

I have also considered Respondent’s basis for objections

to certain of the cards — which I find, infra, devoid of

merit. The signatures on the card and W-4 form are

unmistakably the same. With Wheeler’s card included,

there are 22 signed authorization cards submitted by

the Union.

Two of the authorization cards, by Linda Shiflett and

Louis H. Costin, are dated April 23; the remainder were

signed on dates from October 31, 1974, to and including

April 8. Accordingly, I find that, as of April 19, the

Union had 20 valid authorization cards of 39 employees

in the unit, constituting a majority. Adding the cards of

Shiflett and Coston, the Union’s card majority as of

April 23 consisted of 22 employees of the 39 in the unit.

Respondent objects to the card of Nellie Clark on the

ground of her testimony that Vera Owens, who solicited

her signature, told her it was “‘to try to get an election.”

This contention is rejected; no representation was made

that the cards were sought solely for the purpose of

42a

getting an election.‘? Respondent asserts that the cards

of Shirley Fleming and Ruth Ford, both dated October

31, 1974, and that of Theresa Cross, dated November 24,

1974, are invalid because they were not signed as part

of the “current campaign.” It argues that the Union

began its campaign anew on February 28, and therefore

the earlier signed cards are stale. As plainly apparent

in this record, the Union was conducting a single

continuous campaign commencing prior to October 31,

1974. As of February 26, when the Union and Respond-

ent representatives met for the purpose of a card count,

it is Respondent’s own position that the Union was

short of a majority by one card,‘** and that the Union

was invited to seek additional cards. It is also evident

that the Union, on and after February 28, obtained

from employees duplicate cards, and the more recent of

these cards were introduced. I find the cards of

Fleming, Ford and Cross are sufficiently current within

the campaign and may properly be counted toward the

majority.*4

2. Gissel and Trading Port

As found, Respondent violated Section 8(a)(1) by

delegating a security guard to spy and report on the

employees’ union activities, by engaging in coercive

interrogation of employees, and by repeatedly threaten-

ing the employees with layoff if they selected the

Union. And it violated Section 8(a)(3) by discharging

Peay and Owens because of their union activities.

Peay’s discharge and the various independent acts of

coercion upon the employees had a clear tendency to,

and did, undermine the Union’s majority strength and

interfered with the election held on May 14. Respond-

ent’s unfair labor practices are sufficiently egregious ~

‘2 N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575, 584;

Cumberland Shoe Corporation, 144 NLRB 1268; Levi Strauss

& Co., 172 NLRB 732.

‘Ss The tests each party applied at such meeting for

counting the cards do not appear.

“* E.g., Blade-Tribune Publishing Company, 161 NLRB

1512, 1513.

43a

within the Supreme Court’s standards in the Gissel

case*® to conclude that the application of the Board’s

traditional remedies will not serve to eliminate the

lingering coercive effects of these practices; that a fair

rerun or new election has been rendered highly

improbable; that the signed authorization cards of a

majority of the employees reliably demonstrate their

representation desires for purposes of the Act and that

a remedial bargaining order is warrant.d.*® The

complaint herein does not allege a violation of Section

8(a)(5) on the basis of Respondent’s refusal to bargain

when the Union requested recognition on April 21. It is

unnecessary to reach such an issue.*’ In Trading Port,

Inc.,** the Board decided that an employer’s obligation

under a Gissel bargaining order should commence as of

the date of the employer’s embarkation on a clear

course of unlawful conduct. As I find that Respondent

embarked on such a clear course when it undertook, on

April 21, to assign espionage operations to the security

guard, thereafter acting upon his reports, the recom-

mended remedy will provide that Respondent’s bargain-

ing obligation be deemed to have commenced on such

date, which coincides with the Union’s bargaining

request and card majority.*”

Ill. The Effect of the Unfair Labor

Practices Upon Commerce

The activities of Respondent, set forth in section II,

above, occurring in connection with its operations

described in section I, above, have a close, intimate, and

substantial relation to trade, traffic and commerce

among the several States and tend to lead to labor

45 395 U.S. at 613-15.

46 E.g., Elling Halvorsen, Inc., 222 NLRB No. 70.

47 Jd. at fn. 4. Nothing in Gissel conditions the bargaining

order remedy upon a demand for bargaining. Ludwig Fish &

Produce Co., 220 NLRB No. 60, slip op. at p. 3.

*® 219 NLRB No. 76.

** And see Fordham Equipment Company, Inc., 221 NLRB

No. 75, fn. 1.

44a

disputes burdening and obstructing commerce and the

free flow of commerce.

IV. The Remedy

Having found that Respondent has engaged in

certain unfair labor practices, I shall recommend that it

cease and desist therefrom and take certain affirmative

action designed to effectuate the policies of the Act.

Particularly in view of the discriminatory discharges, a

broad cease and desist order is provided.®°

It has been found that Respondent discharged Wilma

Peay and Vera Owens in violation of Section 8(a)(3) of

the Act. It will therefore be recommended that Respond-

ent offer these employees immediate and full reinstate-

ment to their former positions, or, if such positions no

longer exist, to substantially equivalent positions,

without prejudice to their seniority or other rights and

privileges, and make them whole for any loss of

earnings they may have suffered as a result of the

discrimination against them, by payment to them of a

sum equal to that which they normally would have

earned, absent the discrimination, from the date of the

discrimination to the date of Respondent’s offer of

reinstatement, less net earnings, in accordance with the

formulae set forth in F.W. Woolworth Company, 90

NLRB 289 and Isis Plumbing & Heating Co., 138 NLRB

716. It will be further recommended that Respondent

preserve and make available to the Board, upon

request, all payroll records, social security payment

records, timecards, personnel records and reports, and

all other records necessary and useful to determine the

amounts of backpay and the rights of reinstatemen‘

under the terms of these recommendations.

In view of the provision for a remedial bargaining

order, it is recommended that the election held on May

14 be set aside and the petition be dismissed.

Upon the foregoing findings of facts, and upon the

entire record in the cases, I make the following:

°° N.L.R.B. v. Express Publishing Company, 312 U.S. 426;

N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532 (C.A. 4).

45a

Conclusions of Law

1. Respondent is engaged in commerce within the

meaning of Section 2(6) and (7) of the Act.

2. The Union is a labor organization within the

meaning of Section 2(5) of the Act.

3. By discharging Wilma Peay and Vera Owens,

thereby discouraging membership in the Union, Re-

spondent has engaged in and is engaging in unfair

labor practices within the meaning of Section 8(a)(3) of

the Act.

4. By the foregoing, and by other specific acts and

conduct interfering with, restraining and coercing

employees in the exercise of their rights guaranteed in

Section 7 of the Act, Respondent has engaged in and is

engaging in unfair labor practices within the meaning

of Section 8(a)(1) of the Act.

5. All regular full-time and regular part-time service

and maintenance employees employed by Respondent

at its Towson, Maryland, facility, excluding registered

nurses, licensed practical nurses, office clerical em-

ployees, professional employees, guards and supervi-

sors as defined in the Act, constitute a unit appropriate

for the purpose of collective bargaining within the

meaning of Section 9(b) of the Act.

6. Since April 21, 1975, the Union has been, and is

now, the exclusive representative of all employees in the

appropriate unit within the meaning of Section 9(a) of

the Act.

7. The aforesaid unfair labor practices are unfair

labor practices affecting commerce within the meaning

of Section 2(6) and (7) of the Act.

8. Respondent’s unlawful conduct interfered with

the election held on May 14, 1975.

Upon the above findings of fact, conclusions of law,

and the entire record in the cases, and pursuant to

46a

Section 10(c) of the Act, I hereby recommend the

following:>'

ORDER

Respondent, Multi-Medical Convalescent and Nurs-

ing Center of Towson, Towson, Maryland, its officers,

agents, successors, and assigns, shall:

1. Cease and desist from:

(a) Coercively interrogating employees concern-

ing their union activities or those of their fellow

employees.

(b) Threatening employees with layoff, dis-

charge, or er reprisal, if they select as their

representat: °. r because of their activities in behalf of,

District 1199, Naticnal Union of Hospital and Health

Care Employees, Retail, Wholesale and Department

Store Union, AFL-CIO, or any other labor organization.

(c) Assigning or utilizing its security guards, or

any other agents, to engage in surveillance of and

reporting on employees’ union sentiments or activities

in violation of Section 8(a)(1) of the Act.

(d) Discouraging membership in the above-

named labor organization, or in any other labor

organization, by discharging employees, or in any other

manner discriminating in regard to hire or tenure of

employment or any term or condition of employment.

(e) In any other manner interfering with, res-

training or coercing employees in the exercise of their

rights guaranteed in Section 7 of the Act.

2. Take the following affirmative action designed to

effectuate the policies of the Act:

5! In the event no exceptions are filed as provided by

Section 102.46 of the Rules and Regulations of the National

Labor Relations Board, the findings, conclusions, and

recommended Order herein shall, as provided in Section

102.48 of the Rules and Regulations, be adopted by the Board

and become its findings, conclusions, and Order, and all

objections thereto shail be deemed waived for all purposes.

47a

(a) Offer Wilma Peay and Vera Owens imme-

diate and full reinstatement to their former positions or,

if such positions no longer exist, to substantially

equivalent positions, without prejudice to their seniority

or other rights and privileges, and make them whole for

any loss of earnings, in the manner set forth in “The

Remedy” section of the Decision of the Administrative

Law Judge.

(b) Upon request, recognize and bargain collec-

tively with District 1199E, National Union of Hospital

and Health Care Employees, Retail, Wholesale and

Department Store Union, AFL-CIO, as the exclusive

bargaining representative of its employees in the

appropriate unit, described above, with respect to rates

of pay, wages, hours of employment, and other terms

and conditions of employment, and embody in a signed

agreement any understanding reached.

(c) Preserve and make available to the Board or

its agents all payroll and other records, as set forth in

“The Remedy” section of the Decision of the Adminis-

trative Law Judge.

(d) Post at its Towson, Maryland, facility, copies

of the notice attached hereto marked “Appendix.”®?

Copies of said notice, on forms provided by the

Regional Director for Region 5, shall, after being duly

signed by Respondent, be posted immediately upon

receipt thereof, in conspicuous places, and be main-

tained for a period of 60 consecutive days. Reasonable

steps shall be taken to ensure that said notices are not

altered, defaced, or covered by any other material.

52 In the event that the Board’s Order is enforced by a

Judgment of a United States Court of Appeals, the words in

the notice reading “POSTED BY ORDER OF THE NA-

TIONAL LABOR RELATIONS BOARD” shall be changed

to read “POSTED PURSUANT TO A JUDGMENT OF THE

UNITED STATES COURT OF APPEALS ENFORCING AN

ORDER OF THE NATIONAL LABOR RELATIONS

BOARD.”

48a

(e) Notify the Regional Director for Region 5, in

writing, within 20 days from the date of this Order

what steps Respondent has taken to comply herewith.

IT {S FURTHER ORDERED that Case No. 5-RC-9304

be severed and remanded to the Regional Director for

appropriate disposition in conformance with the find-

ings herein.

Dated at Washington, D.C.

BENJAMIN B. LIPTON,

Administrative Law Judge.

NOTICE TO EMPLOYEES

Posted by Order of The National Labor Relations Board

An Agency of The United States Government

AFTER A TRIAL, IN WHICH BOTH SIDES HAD

THE OPPORTUNITY TO PRESENT THEIR EVI-

DENCE, THE NATIONAL LABOR RELATIONS

BOARD HAS FOUND THAT WE VIOLATED THE

LAW AND HAS ORDERED US TO POST THIS

NOTICE; AND WE INTEND TO CARRY OUT THE

ORDER OF THE BOARD AND ABIDE BY THE

FOLLOWING:

WE WILL NOT ask you anything about your union

activities, or the union activities of your fellow

employees, in a manner which would coerce you

regarding your rights under the National Labor

Relations Act.

WE WILL NOT threaten you with discharge,

layoff, or other punishment, because of your

activities or sentiments in behalf of DISTRICT

1199E, NATIONAL UNION OF HOSPITAL AND

HEALTH CARE EMPLOYEES, RETAIL,

WHOLESALE AND DEPARTMENT STORE UN-

ION, AFL-CIO, or any other labor organization.

WE WILL NOT assign or use our security guards,

or any other agents, to spy and report to us on your

union activities or sentiments.

49a

WE WILL NOT discourage membership in, or

activities in behalf of, DISTRICT 1199E, NA-

TIONAL UNION OF HOSPITAL AND HEALTH

CARE EMPLOYEES, RETAIL, WHOLESALE

AND DEPARTMENT STORE UNION, AFL-CIO,

or in any other labor organization, by discharging

employees, or in any other manner discriminating

in regard to hire or tenure of employment or any

term or condition of employment.

WE WILL NOT in any other manner interfere

with, restrain or coerce you in the exercise of your

rights guaranteed in the National Labor Relations

Act, which are as follows:

To engage in self-organization;

To form, join, or help unions;

To bargain collectively through a representa-

tive of your own choosing;

To act together for collective bargaining or

other mutual aid or protection;

To refuse to do any or all of these things.

WE WILL, upon request, recognize and bargain

with DISTRICT 1199E, NATIONAL UNION OF

HOSPITAL AND HEALTH CARE EMPLOYEES,

RETAIL, WHOLESALE AND DEPARTMENT

STORE UNION, AFL-CIO, as the exclusive

collective-bargaining representative of our em-

ployees in the appropriate unit, composed of all

regular full-time and regular part-time service and

maintenance employees, excluding _ registered

nurses, licensed practical nurses, office clerical

employees, professional employees, guards and

supervisors as defined in the Act, regarding their

rates of pay, wages, hours of employment, and

other terms and conditions of employment; and, if

an understanding is reached, embody such under-

standing in a signed agreement.

Since it has been found that we unlawfully

discharged WILMA PEAY and VERA OWENS, —

‘WE WILL offer them back their regular jobs, or if

such jobs no longer exist, WE WILL give them

substantially equivalent jobs; and WE WILL pay

them for the earnings they lost because of the

50a

discrimination against them, plus 6 percent inter-

est.

All our employees are free to remain or refrain from

becoming or remaining members of a labor organiza-

tion.

MuLTI-MEDICAL CONVALESCENT AND

NuRSING CENTER OF TOWSON,

(Employer).

Dated . By eae

(Representative) (Title)

THIS IS AN OFFICIAL NOTICE AND

MUST NOT BE DEFACED

BY ANYONE

This notice must remain posted for 60 consecutive days

from the date of posting and must not be altered,

defaced, or covered by any other material. Any

questions concerning this notice or compliance with its

provisions may be directed to the Board’s Office. 1019

Fallon Federal Building, Hopkins Plaza, Baltimore,

Md. 21201 (Tel. No. 301-962-2772).

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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