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
la
‘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.