Delmar Gardens, Inc.

National Labor Relations Board - Board Decisions

Jul 19, 1972

198 N.L.R.B. 309 (N.L.R.B. 1972)

DELMAR GARDENS , INC. 309
Delmar Gardens, Inc. and Service Employees Interna-
tional Union, Local 50, AFL-CIO. Case
14-CA-6520
July 19, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On March 9, 1972, Trial Examiner Thomas F.
Maher issued the attached Decision in this proceed-
ing. Thereafter, both General Counsel and Respon-
dent filed exceptions and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three -member panel.
The Board has considered the record and the Trial
Examiner 's Decision in light of the exceptions and
briefs and has decided to affirm the Trial Examiner's
rulings, findings , ' and conclusions and to adopt his
recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner and hereby orders
that the complaint be, and it hereby is, dismissed in
its entirety.
I Contrary to the Trial Examiner's finding, employee Ware did not
testify that employees had inquired concerning their raises , but only that
Grossberg had so stated Ware's testimony was admissible and
nonobiectionabie to show what Grossberg said , but is hearsay and not
probative to show the truth of what Grossberg said We do not rely on
the finding by the Trial Examiner that the employees had in fact asked
Grossberg concerning their raises We rely, rather, on record evidence
that, in each of the past 3 years, most of Respondent 's employees had
received a third-quarter raise , which, in 1971 , appears to have been held
up by the Wage-Puce Freeze With this pattern shown , Grossberg's
speech of October 26 , and his grant of increases when the freeze was
over , cannot be found violative of Sec 8(a)(1)
TRIAL EXAMINER'S DECISION
Inc., Respondent herein , alleging violations of Section
8(a)(1) of the National Labor Relations Act as amended
(29 U.S.C., Sec. 151, et seq.), herein called the Act.
Thereafter, on December 16, 1971, the Acting Regional
Director issued his Report on Objections affecting the
results of the election held pursuant to an agreement for
consent election among Respondent 's employees in Case
14-RM-414, together with his order directing a hearing on
said objections and an order consolidating the two cases
for trial herein . In its duly filed answer Respondent, while
admitting certain allegations of the complaint , denied the
commission of any unfair labor practices.
Pursuant to notice a trial was held before me in St . Louis,
Missouri , where all parties were present , represented by
counsel , and afforded full opportunity to be heard , present
oral argument , and file briefs with me. Briefs were filed by
both General Counsel and Respondent on January 31, and
February 1, 1972, respectively. Upon consideration of the
entire record , including the briefs filed with me, and
specifically upon my observation of each witness appearing
before me , ' I make the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. THE NATURE OF RESPONDENT'S BUSINESS
Delmar Gardens , Inc., is a Missouri corporation main-
taining its office and facility in University City, Missouri,
where it is engaged in the operation of a nursing home,
providing nursing and custodial care and related services.
During the most recent annual period Respondent, in the
course and conduct of its business operations , derived
gross revenues in excess of $100 ,000 from the operation of
its nursing home , and it purchased and caused to be
transported to its University City, Missouri , facility goods
and materials valued in excess of $10,000, of which goods
and materials valued in excess of $10,000 were thus
transported directly from points located outside the State
of Missouri.
Upon the foregoing stipulated facts I conclude and find
that the Respondent is an employer engaged in commerce
within the meamng of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted and I accordingly conclude and find that
Service Employees Union, Local 50, AFL-CIO, the
Charging Party herein , is a labor organization within the
meaning of Section 2(5) of the Act.
STATEMENT OF THE CASE
THOMAS F. MAHER , Trial Examiner : Upon a charge filed
on November 9, 1971, by Service Employees Union, Local
50, AFL-CIO, herein called the Union, the Acting
Regional Director for Region 14 of the National Labor
Relations Board , herein called the Board , issued a
complaint on December 15, 1971, against Delmar Gardens,
III. THE UNFAIR LABOR PRACTICES
A. The Union 's Effort To Organize Respondent 's
Employees
Sometime in early October 1971 , Henry Grossberg,
Respondent 's vice president and administrator, observed
that the premises were being picketed by unidentified
i Bishop and Malco, Inc, 159 NLRB 1159, 1161
198 NLRB No. 57
310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
individuals. It soon came to his attention that deliveries
and services to the facility were being curtailed as a
consequence of the picketing. It was determined that the
activity was being conducted by the Union seeking
Respondent's recognition as the bargaining representative
of the employees. In accordance with appropriate proce-
dures Respondent, on October 14, 1971, filed with the
Board a petition for an election among its employees and
by an agreement for consent election executed on October
29, 1971, an election was held on November 4, 1971. A
tally of the results of the election disclosed that among 67
eligible voters 8 selected the Union and 54 voted against it,
with 5 additional votes challenged. Thereafter, on Novem-
ber 16, 1971, following timely objections to the conduct
affecting the results of the election filed by the Union, the
Regional Director issued his report on objections. Therein
he considered the two objections made, one being the
subject matter of a charge filed in Case 14-CA-6520, the
instant proceeding, relating to a promise of wage increases
in order to influence the employees to vote against the
Union and a subsequent granting of such an increase; the
second objection being the Union's allegation that Respon-
dent had caused one of its supervisors to act as its observer
during the election. By the Regional Director's order issued
together with his report these issues constitute the subject
matter of this proceeding and will be disposed of herein.
B. The Employee Meeting and Eventual Wage
Increase
Shortly after Respondent's October 14 filing of the
petition for an election, Vice President Grossberg tele-
phoned their accountant to inquire if, in view of the price
and wage freeze currently in effect pursuant to Presidential
Executive Order, it could increase the wages of employees
who had not received wages for sometime previously. In
response, Sidney Gorenstein, the accountant, sent the
following to Respondent on October 19, 1971:
This is to confirm our telephone conversation pertain-
ing to the wage-price freeze currently in effect.
In our conversation you stated to us that you very
much desired to increase the wages of employees who
had not received a raise for some time, but were
performing substantially the same duties.
You also requested information as to whether employes
who had been hired on a temporary basis and served an
apprenticeship period could have their wages raised
upon completion of their apprenticeship period.
We posed these questions to the Internal Revenue
Service, who is in charge of the wage-price freeze
currently in effect and who interpret the guidelines set
forth from time to time.
With reference to your regular employes we are advised
that the wages could not be raised at this time if they
continue to perform the same duties and the same basic
skills were required in the performance of their job.
With reference to your temporary employes, the wages
could be raised provided that the period of apprentice-
ship did not exceed three months.
As you know, the entire price-wage freeze law is
currently under review and new guidlines are expected
to be issued by November 15. When these guidelines
are released, I will contact you immediately.
Should you have any other questions, do not hesitate to
call.
Thereafter, on October 26, Grossberg called the employees
together in three groups corresponding to their respective
shifts. As credibly described by employee Idella Ware and
not denied by Grossberg, Grossberg spoke to them as
follows:
He told us that he was calling us together because we
had been asking him about the raises, and he had
gotten a letter from his auditor stating that we had got
caught in the freeze and that he could not give any raise
until after the freeze, which would be November 14 or
15 . . . . And he passed the paychecks and he told us
that an election would be held November 4, 1971, to
watch the bulletin board for the notice of the election,
where it would be held and at what time . . . . If you
was off that day to be sure to come in and vote, vote of
your own free choice, this is a free country, to vote as
you please to do.
Employee Christine Jones credibly quoted Grossberg as
referring to the raise which they did not get in August
because of the freeze.
When Grossberg finished his speech he distributed the
weekly paychecks. Normally, these were obtained in the
office by the individual employees. It is to be noted that
prior to this meeting no one had spoken to the employees
about the raises.
Records submitted into evidence by counsel for the
General Counsel disclose that upon the lifting of the so-
called "wage freeze" on November 14, 1971, the Respon-
dent granted wages to a considerable number of its
employees, in accordance with its earlier statement that it
planned to do so.
C. Conclusions
Respondent's failure in August 1971 to grant the
employees what appears from its records to have been a
periodic wage increase and its granting of such an increase
in mid-November are, in and of themselves, normal
business operations. It is common knowledge that the price
and wage freeze imposed by Executive Order in mid-
August precluded such increases for the time stated.
Certainly, then, it would not seem unreasonable for an
employer to tell his employees why they were not receiving
their raises, particularly since the rumors, reports, and
discussions of the wage freeze could reasonably create
questions in the employees' minds. This typically normal
situation was complicated here, however, by the injection
of the Union into the picture.
In early October, a union picket was observed walking in
front of Respondent's establishment. Thereafter on Octo-
ber 14 Respondent, by filing its petition with the Board,
initiated procedures to obtain an employee election.
Between then and October 19 it called its accountant to see
what could be done about granting the raises held up in
August, and on October 19 the accountant provided a full
explanation of the wage-freeze situation which was then
conveyed to the employees in a meeting called for that
purpose and also to remind them to vote in the election.
DELMAR GARDENS, INC.
This sequence of events adds to Grossberg's October 26
speech to his employees a disturbing ingredient: That an
inference may be drawn from the timing of the speech to
suggest that it was intended more to influence the course of
the election than it was to explain why raises were not
granted 2 months ago. Such a motive would most certainly
constitute an unlawful interference with the employees in
the exercise of their statutory right and I would so find but
for a chance remark of one of the witnesses testifying
concerning the speech. Thus, employee Ware stated that
Grossberg "told us that he was calling us together because
we had been asking him about the raises. "
I have no testimony before me to contradict Mrs. Ware's
statement that inquiries had been made by the employees
concerning the raise. If, then, they had been asking about
the raises , it is quite logical to expect Grossberg would
answer their questions. And this he did. It was certainly
fortuitous that questions about wage coincided with the
appearance of the Union in front of this establishment. But
be that as it may, as the record stands, it was the employees
who generated the subject matter of wages, not Respon-
dent.
Upon the foregoing, therefore, any conclusion that the
Union's appearance motivated the wage raise speech
would be pure speculation on my part. Notwithstanding
the peculiar circumstances under which Grossberg gave his
speech in which he explained the failure to grant wages and
gave his assurances for future adjustments and linked this
with an exortation to vote in the upcoming election, I
cannot substitute my suspicions, however lively, for legal
evidence and reasonable inferences drawn from it that
Grossberg thereby intended to interfere with, restrain, or
coerce its employees. Nor in the posture of the employees
having asked about the raises, can it be said that the
truthful and full answer to their inquiry would have the
tendency of causing such results.
What has been said above concerning the legal conse-
quences of Grossberg's speech applies with equal force to
the raises given to the employees upon the termination of
the freeze period in mid-November 1971. For, if it is
proper, as I find it be, to explain the effects of the wage
raise freeze and to give assurances of action to be taken
when it is lifted, certainly it would be no less proper to
implement what has already been properly assured. I
accordingly conclude and find that Respondent has not
interfered with, restrained, or coerced its employees and I
recommend that the complaint be dismissed in its entirety.
D. The Supervisory Status of the Election Observer
It has been alleged that the Respondent selected a
supervisor, Mrs. Gladys Reeves, as its official observer in
the election held in Case 14-RM-414, thereby adversely
affecting the outcome of the election. The basis for this
objection finds no solid support in the Board's Rules and
Regulations. Thus, Section 102.69, Series 8, provides "Any
party may be represented by observers of his own
selection , subject to such limitations as the Regional
Director may proscribe." I have not been advised of any
311
regulation promulgated by the Regional Director for the
Board's Fourteenth Region that would proscribe the use of
supervisory personnel as observers , nor does the record
show that in this instance the Regional Director objected
to the selection of Mrs . Reeves . While the Board has
traditionally discouraged the designation of supervisory
employees for this purpose ,2 it has qualified its position.
Thus, in Westinghouse Electric Corporation, 118 NLRB
1625, 1626 , the Board found to be without merit and
overruled an objection to the designation of a supervisor
by an employer as its observer at a Board conducted
election . In finding it unnecessary to resolve the issue of
the employees ' supervisory status the Board overruled the
objection for the reason that the objection had not been
raised until after the election. So, in the instant case
objection to Gladys Reeves was not raised until the Union
filed its formal objections with the Regional Director.
There is no evidence whatsoever that the status of the
employer's observer was ever challenged at or prior to the
election . Accordingly , and within the purview of Section
102.69 of the Rules and Regulations , I find that the
employer 's designation of Gladys Reeves and her partici-
pation in the election in that capacity was a matter within
the sound discretion of the Regional Director, it having not
been objected to by the Union.
In any event, I have carefully studied the duties which
Gladys Reeves performed in her capacity as bookkeeper
and secretary to the administrator of Respondent 's facility.
While it is true that on occasion she conveys orders and
instructions of Grossberg to individual employees, in his
absence carries out certain previously assigned orders to
employees , and that she preliminarily interviews and
screens applicants for employment prior to their hire by
Grossberg, I nevertheless find that these duties are purely
administrative , sporadic , subject to Grossberg's final
check , and performed in the nature of a "straw boss,"
which indeed she was , in her capacity as "the boss'
secretary ." Because I am not persuaded that Gladys
Reeves' supervisory status has been established on this
record I conclude and find that regardless of any
proscription against the designation of supervisors as
election observers Gladys Reeves' designation as such, as
an employee of the Respondent , and not its supervisor, was
entirely regular and proper . I accordingly overrule the
objection to the election based upon her designation as
observer.
Upon the basis of the foregoing findings of fact,
conclusions of law and the entire record herein, I hereby
issue the following recommended:
ORDER
It is recommended that the complaint in this matter be
dismissed in its entirety.
IT IS ORDERED that Case 14-RM-414 be severed from
Case 14-CA-6520 and that it be remanded to the Regional
Director for further action not inconsistent with the
findings and conclusions herein.
2 Burrows and Sanborn, Inc, 84 NLRB 304, The Ann Arbor Press, 88
NLRB 391; Peabody Engineering Co, 95 NLRB 952