Eden Forest & Garden of Eden Nursing Homes

National Labor Relations Board - Board Decisions

Sep 27, 1974

213 N.L.R.B. 734 (N.L.R.B. 1974)

734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sander, Inc. & Zeasel , Inc. d /b/a Eden Forest & Gar-
den of Eden Nursing Homes and National Union of
Hospital and Health Care Employees Local 1199 H,
Division of Retail , Wholesale and Department Store
Union, AFL-CIO. Case 9-CA-8278
September 27, 1974
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND PENELLO
rogation, and threats of reprisal; and Section 8(a)(1) and (5)
of the Act based on the withdrawal of recognition and the
subsequent refusal to recognize and bargain with the certi-
fied employee representative. An answer was duly filed,
denying the commission of any unfair labor practices. After
close of the hearing, briefs were filed by the General Coun-
sel and the Respondents.
Upon the entire record, including my observation of the
witnesses while testifying, and after due consideration of the
briefs, I make the following:
FINDINGS AND CONCLUSIONS
On June 27, 1974, Administrative Law Judge Joel
A. Harmatz issued the attached Decision in this pro-
ceeding. Thereafter, Respondent filed exceptions and
a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, 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, Sander, Inc. & Zeasel,
Inc. d/b/a Eden Forest & Garden of Eden Nursing
Homes, Cincinnati, Ohio, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
said recommended Order.
' 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.
DECISION
STATEMENT OF THE CASE
JOEL A. HARMATZ, Administrative Law Judge: This case
was heard in Cincinnati, Ohio, on May 14, 1974, upon a
charge filed on January 30, 1974, and a complaint issued on
March 27, 1974, alleging independent violations of Section
8(a)(1) of the Act, based on the soliciting of employees to
sign a petition rejecting the Union, the promising of benefits
to induce said withdrawal of union support, coercive inter-
I. THE BUSINESS OF THE RESPONDENTS
Sander, Inc., and Zeasel, Inc., are Ohio corporations en-
gaged in the operation of proprietary nursing homes located
in Cincinnati, Ohio, which are managed and run as a single-
integrated enterprise, with centralized control of labor rela-
tions, common management, and common financial con-
trol. The complaint alleges, the answer admits, and I find
that Sander, Inc., and Zeasel, Inc., referred to herein collec-
tively as Respondents, constitute a single employer within
the meaning of the Act.
During the 12 months preceding issuance of the com-
plaint, a representative period, Respondents in the course
and conduct of the aforedescribed operations received gross
revenues in excess of $100,000 and purchased goods and
materials valued in excess of $5,000 which were shipped
from points outside the State of Ohio directly to Respon-
dents' locations in Cincinnati, Ohio.
Respondents are and, at all times material, have been an
employer within the meaning of Section 2(2) of the Act,
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits , and I find that
National Union of Hospital and Health Care Employees
Local 1199 H , Division of Retail , Wholesale and Depart-
ment Store Union, AFL-CIO, is and has been a labor orga-
nization as defined in Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issue
At stake in this proceeding is whether signatures by a
majority of Respondents' employees to a document express-
ing repudiation of the certified Union were a byproduct of
Respondents' illicit activities and hence could not be in-
voked in defense of Respondents' conceded refusal to bar-
gain.
B. Background
On October 12, 1972, the Union was certified as the ex-
clusive bargaining representative for service and mainte-
nance employees in the two nursing homes involved here.
At that time the nursing homes were not owned and operat-
213 NLRB No. 107
EDEN FOREST & GARDEN OF EDEN NURSING HOMES
ed by Respondents. Later, Respondents, within the certifi-
cation year, acquired and then commenced operating the
nursing homes on February 11, 1973. Thereafter, the Union
learned of Respondents' acquisition of the nursing homes
and requested bargaining. After unfair labor practice
charges were filed by the Union, Respondents agreed to
recognize and bargain collectively with the Union. In conse-
quence, the charges were withdrawn. The parties thereafter
met, but were unsuccessful in reaching agreement on a col-
lective-bargaining contract. Negotiations ended when, at a
meeting scheduled for November 23, 1973, the Union was
informed that the Company had filed an RM petition.' It
is undisputed that, after filing the petition, Respondents
rejected repeated requests by the Union for a resumption of
negotiations.
C. The Refusal To Bargain and Related Unfair Labor
Practices
The lawfulness of the withdrawal of recognition from the
certified Union, which gives rise to the critical issue in this
case, turns on the factual question of whether evidence of
the Union's loss of the majority was solicited coercively by
a supervisor or agent of Respondents and therefore was
induced by Respondents' unfair labor practices. In accor-
dance with established Board policy, a withdrawal of recog-
nition from a certified union, upon expiration of the
certification year, violates Section 8(a)(5) unless the em-
ployer demonstrates "that, at the time of the refusal, the
Union no longer commanded a majority or that the
employer's refusal was predicated upon a reasonably based
doubt of majority." 2 As heretofore indicated Respondent
concedes that on November 23, 1973, slightly more than a
month after expiration of the certification year, recognition
of the certified Union was withdrawn and there was no
further bargaining. There is no dispute that Respondents in
withdrawing recognition relied on evidence of loss of major-
ity in the form of a petition signed by more than a majority
of the employees, indicating their repudiation of the Union.
The General Counsel concedes that this evidence prima
facie substantiates doubt of or loss of majority, but he none-
theless challenges the availability of such defense, contend-
ing that since these signatures were obtained through
Respondents' coercive solicitation, the evidence of loss of
majority is to be given no weight in the circumstances of this
case . The position advanced by the General Counsel is en-
tirely consistent with controlling legal authorities,3 and the
only question that remains is whether his contention has
been substantiated factually.
Turning to the evidence, the document, relied on to estab-
lish a loss of majority, is what appears to be lined, three-ring
i The petition filed by the Respondents in Case 9-RM-712 apparently was
initially processed by Region 9, for, pursuant to a stipulation upon consent
agreement, an election was scheduled for early February 1974 That election
was never conducted, however, because on January 30, 1974, the instant
charges were filed On March 29, 1974, the Acting Regional Director dis-
missed the RM petition pending disposition of the charges which led to
issuance of the instant complaint
20rion Corp, 210 NLRB 633 (1974)
3 See Debin Manufacturing Corporation, 208 NLRB 392 (1974), and cases
cited at fn 31 thereof, Condon Transport, Inc, 211 NLRB No 37 (1974)
735
loose leaf paper, which was apparently removed from a
spiral type notebook. It is dated September 22, 1973, and at
the top includes the handwritten declaration:
This paper is vote the Union 1199 out of the Garden
of Eden and the Eden Forest nursing homes. Thank
you.
Each signature appearing thereon is numbered in sequence
from I to 35. As will be seen below I deem it significant that
the first of the employee signatures appears on the seventh
line of the paper directly beneath the declaration quoted
above.
This document or petition was circulated by one Henry
Heard, who secured all the signatures appearing thereon.
Thelma Williams,4 who was called by the General Counsel,
credibly testified that when Heard asked Dorothy Gardner
and herself to sign he stated that the purpose was to get rid
of the Union because "the Union was responsible for us not
getting the money we were entitled to," and that "the owner
couldn't give . . . the money because of the holdup with the
Union." When Williams asked if Heard was sure the two
employees would get the money, Heard said yes, and that,
because of their length of service, the two women would get
more than the others. According to Gardner, Heard in ask-
ing them to sign stated that he needed three more signa-
tures 5 and that they would get a 50-cent raise. Heard, when
called as a witness for Respondents, was questioned as to
what he told the employees to get them to sign, and an-
swered as follows:
I just explained to them that if they wanted to sign the
papers, because I understand that we can 't get no raises
or anything during the bargaining with the Union. Per-
haps if you get the paper signed and everything like this
maybe we'll be able to get some raises or something like
that .6
Heard later testified that the employees asked about the
raises and he simply said that he couldn't "guarantee" them.
I credit Gardner and Williams and find that Heard, consis-
tent with his own original version of what he told employ-
ees, raised the possibility of wage increases as a means of
obtaining signatures. I am also persuaded that Heard, in
discussing the increases, used terms of assurance in express-
ing that they would be granted if the Union were voted out.'
The General Counsel contends that Heard, at the time he
promised the wage increases and solicited employees to
repudiate the Union, was a supervisor or agent of Respon-
Otherwise referred to in the record as "Joyce Williams " or "Velma."
5 Heard testified that he thought that there were about 40 employees in the
unit at the time he circulated the petition . Gardner and Williams were the
20th and the 21st signatures appearing on that document
6It is noteworthy that Heard himself received two raises prior to circula-
tion of the petition, one in April 1973 and the second on May 20, 1973.
11 was totally unimpressed with Heard's demeanor and testimony As will
be seen , infra, his explanations for suspicious aspects of his activities in
connection with the petition often bordered on the nonsensical, and he
impressed me strongly as intent on both deception and a conscious avoidance
of any testimony as to facts which might be prejudicial to Respondents On
the other hand, Williams and Gardner , whose union leanings are not clearly
defined on this record , and who have since voluntarily left the Respondents'
employ, testified under conditions which impressed me with their integrity.
736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dents and that his conduct is therefore attributable to Re-
spondents. Concerning this issue, it is noted that Sander
Lustig is president and administrator of Respondents and
is referred to in the record as the owner of the nursing
homes. At the time of Lustig's acquisition of the homes,
Frank Diamond was assistant administrator. The assistant
administrator was in charge of all maintenance and clean-
ing with authority over the nurses aides, porters, and kitch-
en help.8
Heard, at the time Respondents began operations, was a
porter. Indeed he had been a porter for some 6 to 7 years
in his previous employment with Respondents' predecessor.
In July or August 1973, Lustig called a meeting of all em-
ployees to announce that Heard had been promoted to the
position of "head cook." Lustig denies that at this meeting
he specifically informed the employees that Heard would
possess traditional indicia of supervisory authority. But
Lustig does not testify and the record does not show that
employees were informed that such authority was not en-
trusted to Heard. Nonetheless, I find that Lustig did inform
the employees that they were to abide by Heard's instruc-
tions. In all other respects Lustig's testimony is generally
consistent with Respondents' position that Heard, as a head
cook, was not a supervisor.9 But I note with interest the
following colloquy between Lustig and the General Counsel
on the latter's questioning of Lustig as to why he called an
employee meeting to announce this relatively minor promo-
tion:
General Counsel: Can you tell us why you told all
the employees that Mr. Heard was the new head cook?
Sander Lustig: If you would take the office boy in
your law firm and make him a partner wouldn't [that]
call for some kind of announcement?
General Counsel: It certainly would.
Sander Lustig: Well that's the reason.
In addition to Heard's promotion to head cook, at some
time thereafter his responsibilities were broadened and he
was awarded authority extending beyond the kitchen. The
General Counsel contends that this new authority was vest-
ed in Heard before he solicited the employee rejections of
the Union. Respondents claim that this did not occur until
October 20, 1973, well after the September 22, 1973, date
appearing on the petition circulated by Heard.
As to this issue , it appears that, at some time in the late
summer or early fall of 1973, Lustig apparently became
disenchanted with Diamond, whom he had retained as as-
sistant administrator and was considering his discharge.
Heard was selected by Lustig as Diamond's probable suc-
cessor, and there is no dispute that, when Diamond in mid-
November 1973 went into the hospital for an extended peri-
od, Heard assumed all of Diamond's responsibilities. 10 It is
conceded, however, that Heard took over some of
8 On the basis of Diamond 's uncontradicted testimony which is implicitly
confirmed by that of Lustig , I find that the position Diamond occupied was
that of a statutory supervisor.
9 At times material only four to five individuals were assigned to the
kitchen.
10 Diamond did not report back to work until January 1974. At that time
he was told that his services would no longer be needed.
Diamond's duties at an earlier date. The critical question is
when. Lustig, with corroboration from Heard, testified that
this did not occur until October 20, 1973, and that the
assignment of additional duties to Heard occurred on that
date and contemporaneously with what payroll records
show as the date of Heard's conversion from an hourly rated
employee to salaried status.
Gardner and Williams dispute this, claiming that when
Heard solicited their signatures he was already in charge of
the porters and practical nurses, and that Diamond had
been assigned to a painting job in the basement ." Consis-
tent with Williams and Gardner, Diamond testified that in
early September Lustig informed him that he was going to
let Heard take over the porters, kitchen help, and nurses
aides and that Diamond would concentrate on maintenance
work.
Considering the entire record, and my mistrust of Lustig
and Heard gleaned from observing them while testifying, I
credit Williams, Gardner, and Diamcnd in this respect and
find that at the time that Heard solicited employee signa-
tures he had succeeded to a portion of the duties of Dia-
mond and, at the very least, was held out by Respondent to
occupy a position invested with supervisory authority.
Aside from my reliance upon demeanor, this credibility
resolution is supported by a variety of factors indicating
that the credited testimony is more consistent with the prob-
abilities than that evidence which asserts that Heard did not
actually assume any of Diamond's responsibilities until Oc-
tober 20. These factors are outlined as follows:
1. Heard did not himself sign the petition. His failure to
do so lends strong indication that Heard himself believed
his status rendered him ineligible to register a choice on the
matter. Heard attempted to explain that he simply forgot to
sign . I find this explanation incredible. Heard admittedly
numbered each of the signatures obtained and he testified
that he regarded the task of obtaining the signatures as
undesirable and one that he wished to complete as soon as
possible. Since Heard admittedly had an idea of how many
signatures were needed, and since he obviously was keeping
track of the number of signatures he had obtained, I cannot
believe that he would have inadvertently neglected to sign
himself in his haste to get enough signatures as soon as
possible. In my opinion Heard's explanation in this regard
represents a transparent effort on his part to conceal his
deliberate refusal to sign on grounds that, as a supervisor,
he knew, while circulating the petition, that he had no voice
in the matter.
2. It is also significant that Lustig on October 20, and
thereafter, failed to call a meeting of all employees to an-
nounce the change in status of Heard effected on that date.
It will be recalled that such an announcement was deemed
necessary by Lustig when Heard was promoted to the posi-
tion of "head cook." Nonetheless, though the second pro-
motion was of far greater importance to employees
generally, no similar meeting was called on that occasion.12
The absence of a formal meeting on or after October 20,
11 Based on a composite of testimony of Gardner and Williams.
12 1 regard Lustig's asserted lack of recollection as to whether or not such
a meeting was called to be deliberate deception . He testified with clarity as
to the much earlier meeting in which he announced that Heard would be
made head cook. If Lustig had taken similar action on the subsequent promo-
EDEN FOREST & GARDEN OF EDEN NURSING HOMES
when the former porter was made a salaried employee, leads
to the conclusion that such a meeting was unnecessary be-
cause Heard previously was known by all to have been
enclothed with supervisory authority; that he had previous-
ly, at least, in part, assumed Diamond's responsibilities, and
that he already was "a partner in the firm," so to speak.
3. I am also convinced that the conversion of Heard to
salaried status on October 20 only occurred because he had
assumed broadened responsibilities at an earlier date. Lus-
tig testified that it was on October 20 that he asked "Dia-
mond to relinquish some of his authority in showing Henry
how to do it and see if Henry was performing properly."
Lustig further relates that at that time he told Heard that he
"would like him to take over more supervisory duties but
this would be more of a training period than actually giving
him any authority." Lustig relates that as of October 20 he
wasn 't "even 100 percent sure that he [Heard] would be able
to do it." A question naturally arises from Lustig' s testimo-
ny as to why Heard was converted to salaried status before
he had an opportunity to prove himself. When the General
Counsel pressed Lustig on this issue , Lustig then stated that
he thought Heard would be able to handle the job. I regard
Lustig's testimony with respect to the circumstances sur-
rounding the advancement of Heard to salaried status as
evasive and calculated to conceal the truth. I further view
it as entirely improbable that, at a time when, according to
Lustig's testimony, he had not yet decided to terminate
Diamond, Lustig would have taken authority away from
Diamond and placed Heard on salary status if in truth a
training period was necessary to permit determination of
whether Heard could handle effectively Diamond's respon-
sibilities. I regard it as the more probable that Lustig grant-
ed Heard the additional responsibilities in early September
when Diamond was absent from work for a week on sick
leave, and that on October 20 Heard was rewarded with
salary status because he had already demonstrated his abili-
ty to supervise the porters and practical nurses, as well as
the kitchen help.
4. The testimony of Lustig and Heard concerning the
pre-October 20 kitchen work force is also of interest. Lustig
testified that there were four individuals employed in the
kitchen-two cooks and two helpers. According to Lustig,
prior to October 20, the two cooks were Heard and Jose-
phine Diamond. Lustig's testimony makes no reference to
the hiring of a third cook in the period preceding Heard's
conversion to salary status. Moreover Lustig testified that,
while Heard served as head cook, employees assigned to the
kitchen had been working there regularly over the past year,
that they knew their jobs, and that it was not necessary to
have somebody constantly on the job to tell the kitchen
aides what to do. Heard, on the other hand, bared the fact
that in October when he took over Diamond's responsibil-
ity, a third cook, one Celestine Johnson, was assigned to the
kitchen and that "she was doing the major part of the cook-
ing." When questioned as to whether Johnson needed to be
Lion it would have been within his clear recollection I view his asserted loss
of memory as to this matter as a convenient dodge siezed upon to avoid the
plain inference that raises from his failure to call an all-employee meeting to
announce this second promotion
737
trained to do all the cooking Heard responded: "No. She
knew what she was doing." Heard testified that Johnson
and Josephine Diamond had been doing the cooking for
"quite a while" prior to October 20. It is true that Heard
subsequently indicated that he too was engaged in cooking
in that period and that Johnson was a learner. I regard this
latter testimony as contradictory and as an attempt by
Heard to mitigate his having revealed the hiring of Johnson,
a fact carefully concealed by Lustig's sworn description of
manpower in the period prior to October 20. Considering
Lustig's nondisclosure of the hiring of the third cook, a fact
which certainly he would be mindful of, and the absence of
any other explanation as to why during this period it was
necessary to operate with three cooks, I am satisfied that
well prior to October 20 Johnson was hired in order to
replace Heard in the kitchen, so that he might devote atten-
tion to his additional responsibilities with respect to the
porters and practical nurses. Here again, the record points
to the fact that Heard, prior to October 20, had assumed the
authority and duties which ultimately led to his conversion
to salaried status.
For the above reasons I credit the testimony of Diamond,
Williams, and Gardner and find that, as of September 22,
1973, Diamond was relegated to maintenance duties only,
and that his former responsibility in connection with clean-
ing and rank-and-file patient care personnel was conferred
upon Heard. As Heard was a supervisor, and an agent of
Respondents at that time, I find that Respondents violated
Section 8(a)(1) by Heard's soliciting employees to withdraw
their support of the Union, and by his promising wage
increases to induce such withdrawals. I further find that
these unfair labor practices induced the loss of majority
evidenced by the petition, and, accordingly, that Respon-
dents were not free to assert such evidence as a basis for
either a doubt of or an actual loss of majority in defense of
its withdrawal of recognition from the certified Union.13
Accordingly, I further find that Respondents violated Sec-
tion 8(a)(5) and (1) of the Act by refusing to bargain with
the Union on and after November 23, 1973.14
13 Condon Transport Co, Inc, 211 NLRB No 37 (1974)
i4
Frank Diamond testified that , in various conversations with Lustig, they
discussed methods of getting nd of the Union According to Diamond, about
a month prior to Heard's circulation of the petition , Lustig indicated that
they would "get everybody to sign a petition to get the Union out " There
is no question in my mind that Diamond harbored resentment towards the
Company and that his testimony therefore warrants close scrutiny But in this
respect, I credit him over Lustig and Heard because I am convinced by the
record as a whole that the Heard petition was both inspired and initiated by
Lustig in my opinion , Heard's highly unbelievable account of his role in
connection with the petition, on its face , evidences an attempt at deliberate
concealment This testimony creates far more than a suspicion that Lustig
was the moving influence behind circulation of the petition, and at the very
least convinces me that Diamond truthfully related that the petition was
Lustig's idea I am satisfied that this record adequately supports the infer-
ence that Heard, in circulating and drafting the petition, was acting on
Lustig's instructions
Thus, Heard's testimony to the effect that this petition originated with
other employees is so implausible as to indicate that the petition was derived
from other sources Thus he states that he first saw the petition when he was
asked by Charlotte Williams, a night-shift employee, if he "wanted to sign
a petition to do away with the union " Heard went on to testify that two
signatures were on the petition when he first saw it Because Heard admits
that he wrote the declaration of purpose on that document , the two signa-
tures, if Heard is to be believed would have been placed on the left hand side
Continued
738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D. Other Interference, Restraint, and Coercion
The complaint alleges that on January 24, 1974, well after
the refusal to bargain herein, and while the RM petition was
still pending, Lustig violated Section 8(a)(1) by coercively
interrogating employees as to which employees supported
the Union and by threatening that union supporters would
be discharged. In support of this allegation, Gardner and
Williams testified that about a week before the election,
which had been scheduled on the RM petition,l5 Lustig
approached them in the dining room and asked them to
come to the office. Both went with Lustig. At the office he
asked if the girls felt the Company had a chance of winning
the election. Williams said she thought the Union would
win, whereupon Lustig said that "anyone participating in
the union would be fired and that they wouldn't have a
chance of getting a job in a nursing home . . . he'd see to
that." 16 Lustig admits to such a conversation with Gardner
and Williams but, while indicating that he could not recall
everything that transpired, he admits questioning them as to
how they felt the election would come out. As to the threat-
ening remarks, Lustig initially stated that he didn't remem-
ber making any such statement, and then went on to testify
that he would not have done so "because it is against my
policy to give bad recommendations or anything like that."
Although Lustig's testimony, if construed strictly, does not
squarely contradict the material aspects of that of Williams
and Gardner, even if it did, for reasons heretofore stated, I
adopt the testimony of these former employees as the more
credible. Based thereon, I find that Respondent violated
Section 8(a)(1) of the Act by coercively interrogating em-
ployees as to matters which would tend to expose their
union sympathies, and by threatening to discharge employ-
ees because of their union activities.
CONCLUSIONS OF LAW
1. Respondents Sander, Inc. & Zeasel, Inc. d/b/a Eden
Forest & Garden of Eden Nursing Homes constitute a sin-
gle employer engaged in commerce within the meaning of
of a blank piece of paper, some seven lines down the page Examination of
the petition should make it plain that Heard had prepared the document
before any signatures were appended thereto, and that his testimony relative
to the two signatures was patently false. I discredit Heard's testimony that
he obtained the petition from Williams and conclude that that document was
prepared by him Contributing further to my disbelief that the petition origi-
nated with other employees is Heard's testimony that, while Heard regarded
this task as undesirable , he nonetheless assumed this undertaking because
other employees requested him to do so I am not persuaded that Heard
would have volunteered for this task as a favor to fellow employees Finally,
from my observation of Heard, I am convinced that he was not sufficiently
sophisticated to himself conceive the idea of such a petition Nor do I believe
that it was his idea to attribute the lack of wage increases to union negotia-
tions, for I am satisfied that, having received two wage increases during this
period, Heard would not have reasoned this out himself nor placed stock in
such a concept if merely "scuttlebut" passed on to him by other employees.
Upon analysis of Heard 's testimony, it is my opinion that , consistent with
Diamond's testimony, Heard acted on instruction of Lustig in soliciting the
withdrawals Under this view of the evidence , the 8(a)(5) and ( I) violation
would stand even if it were found that Henry Heard, on September 22, 1973,
was not a supervisor within the meaning of the Act.
15 It will be recalled that , in view of the filing of the instant charges, the
election scheduled for February 8, 1974, was never held.
16 Based on the testimony of Gardner, as corroborated by Williams
Section 2(2), (6), and (7) of the Act.
2. National Union of Hospital and Health Care Employ-
ees Local 1199 H, Division of Retail, Wholesale and De-
partment Store Union, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. All full-time and regular part-time service and mainte-
nance employees employed by the Respondent at their
Eden Avenue, Cincinnati, Ohio, nursing homes, including
licensed practical nurses/graduate licensed practical nurses,
custodians/porters, kitchen employees and laundry em-
ployees, but excluding the beautician, the barber, the dieti-
cian, the physical therapist, all office clerical employees,
and all guards, professional employees and all registered
nurses and all other supervisors as defined in the Act consti-
tute a unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the Act.
4. Respondents, by soliciting employees to sign a petition
indicating that they no longer wished representation by the
Union, by promising benefits to induce employees to sign
that petition, by coercive interrogating employees, and by
threatening discharge of union supporters, violated Section
8(a)(1) of the Act.
5. Respondents by refusing to bargain since November
23, 1973, with the Union as the exclusive bargaining repre-
sentative of employees in the appropriate bargaining unit
set forth above have violated Section 8(a)(5) and (1) of the
Act.
6. The aforesaid unfair labor practices constitute unfair
labor practices which affect commerce within the meaning
of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondents have engaged in certain
violations of Section 8(a)(5) and (1) of the Act, it shall be
recommended that Respondents cease and desist therefrom
and that certain affirmative action be taken which is neces-
sary to effectuate the policies of the Act, including a provi-
sion requiring Respondents, upon request, to bargain
collectively with the Union, and to embody any under-
standing reached in a signed agreement.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 17
Respondents, Sander, Inc. & Zeasel, Inc. d/b/a Eden
Forest & Garden of Eden Nursing Homes, Cincinnati,
Ohio, their officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating employees concerning
union activity, threatening reprisals for union activity, soli-
citing employees to withdraw from the Union as the exclu-
sive bargaining representative of all employees in the
17 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Sec 102 48
of the Rules and Regulations , be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes
EDEN FOREST & GARDEN OF EDEN NURSING HOMES 739
appropriate bargaining unit with respect to rates of pay,
wages , hours of employment, and other terms and condi-
tions of employment, and promising benefits to induce such
withdrawals.
(b) Refusing to bargain collectively with respect to the
wages , hours, and other terms and conditions of employ-
ment of employees in the appropriate collective-bargaining
unit.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights guaranteed by Section 7 of the Act. .
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Upon request, bargain collectively with the Union as
the exclusive representative of employees in the appropriate
unit and, if an understanding is reached, embody such un-
derstanding in a signed agreement.
(b) Post at its nursing homes in Cincinnati, Ohio, copies
of the attached notice marked "Appendix." 18 Copies of said
notice on forms provided by the Regional Director for Re-
gion 9, after being signed by a duly authorized representa-
tive of Respondents, shall be posted immediately upon
receipt thereof, and maintained for 60 consecutive days
thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken by Respondents to insure that said
posted notices are not altered, defaced, or covered by any
other material.
(c) Notify the Regional Director for Region 9, in writing,
within 20 days from the date of this Decision, what steps
Respondents have taken to comply herewith.
18 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 National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
tional Union of Hospital and Health Care Employees,
Local 1199 H, Division of Retail , Wholesale and De-
partment Store Union, AFL-CIO, as the exclusive col-
lective-bargaining representative of our employees in
the appropriate collective-bargaining unit , consisting
of:
All full-time and regular part-time service and main-
tenance employees employed by us at our Eden Ave-
nue, Cincinnati, Ohio, nursing homes, including
licensed practical nurses/graduate licensed practical
nurses, custodians/porters, kitchen employees and
laundry employees, but excluding the beautician, the
barber, the dietician, the physical therapist, all office
clerical employees and all registered nurses and all
other supervisors as defined in the Act.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of their right to self-organization, to form, join, assist,
or bargain collectively through National Union of Hos-
pital and Health Care Employees, Local 1199 H, Divi-
sion of Retail, Wholesale and Department Store
Union, AFL-CIO, and to engage in other concerted
activities for the purposes of collective bargaining or
other mutual aid or protection, or to refrain from any
and all such activities.
WE WILL, upon request, recognize and bargain collec-
tively with National Union of Hospital and Health
Care Employees, Local 1199 H, Division of Retail,
Wholesale and Department Store Union, AFL-CIO, as
the exclusive representative of all our employees in the
above-described bargaining unit with respect to rates
of pay, wages, hours of employment, and other terms
and conditions of employment and, if an under-
standing is reached, embody such understanding in a
signed agreement.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT coercively interrogate our employees
concerning union activity or threaten reprisals for en-
gaging in such activities, nor will we solicit employees
to cease to support National Union of Hospital and
Health Care Employees, Local 1199 H, Division of
Retail, Wholesale and Department Store Union, AFL-
CIO, or promise them benefits to induce them to with-
draw such support.
WE WILL NOT refuse to bargain collectively with Na-
SANDER, INC. & ZEASEL, INC.
d/b/a EDEN FOREST & GAR-
DEN OF EDEN NURSING HOMES
(Employer)
Dated By
(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 direct-
ed to the Board's Office, Federal Office Building, Room
3003, 550 Main Street, Cincinnati, Ohio 45202, Telephone
513-684-3686.