Forbes Pavilion Nursing Home, Inc.

National Labor Relations Board - Board Decisions

Aug 9, 1972

198 N.L.R.B. 802 (N.L.R.B. 1972)

802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Forbes Pavilion Nursing Home, Inc. and National
Union of Hospital and Nursing Home Employees, a
Division of RWDSU, Local 1199-P, AFL-CIO.
Cases 6-CA-5140, 6-CA-5446, and, 6-RC-5534
August 9, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On March 24, 1972, Trial Examiner Anne F.
Schlezinger issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and General Counsel filed an
answering brief.
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 I and the
Trial Examiner's Decision in light of the exceptions
and briefs and has decided to affirm the Trial
Examiner's rulings, findings,2 and conclusions, and
to adopt her 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 Respondent, Forbes Pavilion Nursing Home,
Inc., Pittsburgh, Pennsylvania, its officers, agents,
successors, and assigns, shall take the action set forth
in the Trial Examiner's recommended Order.
It is hereby directed that as part of his investigation
to ascertain representatives for the purposes of
collective bargaining with the Employer, the Region-
al Director for Region 6 shall, pursuant to the
Board's Rules and Regulations, Series 8, as amended,
within 10 days from the date of this Direction, open
and count the ballots of Norbert Harbin, Walter
Harbin, Joan Harbin, Edward Sydlowski, and
Cylesta Jordan and thereafter prepare and cause to
be served on the parties a revised tally of ballots,
including therein the count of said ballots. If the
Petitioner receives a majority of the valid ballots
cast, according to the revised tally, the Regional
Director shall certify it as the exclusive bargaining
representative of the employees in the appropriate
unit. If the Petitioner does not receive a majority, the
following shall become applicable:
IT IS FURTHER ORDERED that the election conducted
in Case 6-RC-5534 on March 26, 1971, be, and it
hereby is, set aside, and that said case be, and it
198 NLRB No. 113
hereby is, remanded to the Regional Director for
Region 6 to conduct a new election when he deems
the circumstances permit a free choice of a bargain-
ing representative.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
i Respondent has requested oral argument This request is hereby denied
as the record , the exceptions , and the briefs adequately present the issues
and positions of the parties
2 We find it unnecessary to pass upon the Trial Examiner 's finding that
Respondent violated Section 8(a)(I) by prohibiting employee Hooker from
engaging in union activities at any time on Respondent 's premises This
allegation is cumulative and unnecessary to the remedy, and accordingly we
need not reach the issues raised by the Respondent 's exceptions to this
finding Respondent's grant of retroactive wage increases , paid on the date
of the election and clearly made for the purpose of discouraging union
membership and activity , by itself precluded the holding of a fair election
and justified the sustaining of Petitioner 's objections to conduct affecting
the results of the election
We hereby correct the Trial Examiner 's inadvertent error in setting forth
the period of employee Robert Popp's employment by Respondent The
corrected dates are September 1969 through July 1970
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
ANNE F. SCHLEZINGER, Trial Examiner: Upon a charge
and an amended charge filed respectively on August 13
and December 29, 1970, in Case 6-CA-5140, and a charge
and an amended charge filed respectively on March 31 and
November 16, 1971, in Case 6-CA-5446, by National
Union of Hospital and Nursing Home Employees, a
Division of RWDSU, Local 1199-P, AFL-CIO, referred to
herein as the Charging Party or the Union, the General
Counsel, by the Regional Director for Region 6, issued on
June 30 an order consolidating cases and a consolidated
complaint, and on November 16, 1971, an amended
consolidated complaint. The amended consolidated com-
plaint alleges that Forbes Pavilion Nursing Home, Inc.,
referred to herein as the Respondent or the Employer,
interfered with, restrained, and coerced its employees in
the exercise of the rights guaranteed in Section 7 of the
Act, in violation of Section 8(a)(1) of the Act, by
interrogating and threatening employees, promising and
granting benefits, prohibiting union solicitation at any time
on the Respondent's premises, and engaging in surveillance
and/or creating the impression that the union activities of
its employees were being kept under surveillance. In its
answer to consolidated complaint and answer to amended
consolidated complaint, the Respondent denies that it has
engaged in the alleged unfair labor practices.
The order consolidating cases provides that, the Region-
al Director having directed a hearing with respect to
objections and challenges in Case 6-RC-5534, that case be
consolidated with the complaint cases herein for the
purposes of hearing, ruling, and decision by a Trial
Examiner; that thereafter Case 6-RC-5534 be transferred
to and continued before the Board; and that the provisions
of Sections 102.46 and 102.69(e) of the Board's Rules and
Regulations shall govern the filing of exceptions.
Pursuant to notice, a hearing in the consolidated
proceeding was held before me at Pittsburgh, Pennsylvania,
on December 2 and 3, 1971. All parties appeared at the
FORBES PAVILION NURSING HOME
hearing and were afforded full opportunity to present
evidence and to examine and cross-examine witnesses.
Briefs were received from the General Counsel and the
Respondent on or about January 17, 1972, which have
been fully considered.
Upon the entire record in these cases, and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, a Pennsylvania corporation with its
principal office in Pittsburgh, Pennsylvania, is engaged in
the business of operating a proprietary nursing home in
Pittsburgh. During the 12-month period immediately
preceding the issuance of the amended consolidated
complaint, the Respondent received in excess of $1 million
in gross revenues. During the same period, the Respondent
received goods and products valued in excess of $5,000
from outside the Commonwealth of Pennsylvania for use
at its Pittsburgh facility. The Respondent in its answer
admits, and I find, that the Respondent, at all times
material herein, has been an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
I find, as the Respondent's answer admits, that National
Union of Hospital and Nursing Home Employees, a
Division of RWDSU, local 1199-P, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Surveillance
The Union began organizing the Respondent's employ-
ees in May 1970. Organizers distributed leaflets and
solicited membership near the entrances to the Respon-
dent's premises on frequent occasions for a period of
months. An election petition was filed by the Union on
July 10, 1970, and an election, first scheduled for
December 28, 1970, was held on March 26, 1971.
(1) In June 1970, shortly after the organizing activities
began, Mary Fareri, the administrator of the Respondent
in overall charge of its operations, admittedly photo-
graphed the union organizers from the front doorway of
the Respondent's premises. Her assistant, Baher, was with
her at the time. Fareri testified 1 that she took the picture
because she had seen the organizers on the Respondent's
property, at times sitting on a planter, and thought she
might need proof of this "in the event that we were to seek
an injunction." Kay Tillow and Helen Lyles, two of the
union organizers, testified that they were standing on the
sidewalk, not sitting on the planter, when Fareri photo-
graphed them, that Tillow was at the time talking to an
employee, and that other employees were going in and out
on a change in shifts. There is no evidence that the
Respondent ever said anything to the organizers about
I Baher was not called as a witness.
2 N.L.R.B. v. Associated Naval Architects, Inc., 355 F.2d 788, 791 (C.A.
803
being on company property, or that the Respondent sought
an injunction at any time during the months of organizing
activities. The picture Fareri took was not placed in
evidence.
(2) Fareri also admitted that she stood in the doorways
and on the balcony of the Respondent's premises and saw
the organizers passing out leaflets and talking to employees
arriving or leaving during shift changes, and that she knew
the two employees, Robert Popp and Martha Hooker, who
were most active on behalf of the Union, "Because they
were in with the organizers outside the building as often as
they had the time to be with them. During breaks, after
working hours and whatever." Fareri denied that she stood
in the doorways or on the balcony for the purpose of
observing the union activities, but offered no explanation
for being there at these times other than that "my
responsibility is to oversee Forbes Pavilion and I was
performing my responsibilities."
I found Fareri an evasive and unconvincing witness.
Tillow and Lyles impressed me as frank and reliable
witnesses, and I credit their testimony regarding the
photographing incident. Moreover, as the Board has held,
"it is the act of photographing itself that had the tendency
in these circumstances to intimidate." I find further, on all
the relevant evidence, that Fareri stood in the doorways
and on the balcony in order to observe the union
organizing activities, and that her conduct in standing and
observing these activities and in photographing them "were
plain violations of the Act, whether or not they were
coercive in actual fact."2 Accordingly, I conclude and find
that Faren engaged in surveillance and created the
impression that the union activities of the employees were
being kept under surveillance, and that the Respondent
thereby interfered with, restrained, and coerced its employ-
ees in the exercise of the rights guaranteed in Section 7 of
the Act, in violation of Section 8(a)(1) of the Act.
(3) The complaint also alleges surveillance by Ronald
Harbin, the Respondent's building superintendent. Harbin,
who was no longer in the Respondent's employ at the time
of the hearing, testified that his work included building and
grounds maintenance, that he was frequently in a position
while engaged in such work to observe the union
organizing activities going on near the Respondent's
premises , and that he sometimes talked to the organizers. I
find the evidence insufficient to establish that Harbin was
engaging in surveillance of the organizing activities in
violation of the Act, and shall recommend dismissal of
these allegations of the complaint.
B. Threats
(1) Robert Popp, who was employed by the Respondent
from September to July 1970, was signed up by one of the
union organizers in May 1970 . He obtained additional
cards, and testified that he signed up about 25 employees
in 2 or 3 months . Popp also testified that in late May or
early June he was called , to the office of Helen Doyle, who
was then the Respondent's housekeeper and an admitted
supervisor, and that Doyle said she had a message from
4): Central Power & Light Co., 173 N LRB 287. 293. American National
Stores, 195 NLRB No. 3.
804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Fares that he could not solicit for the Union at any time
on the Respondent's premises and that, if there were one
more report of such activity, he would be discharged on the
spot.
Doyle, who had left the Respondent's employ, was called
as a witness by the Respondent. She testified that Popp was
the strongest supporter of the Union in her department;
that she told Fareri she was going to tell Popp to stop his
"Union activities on working time and around the building
because it was showing up in his work"; that she told Popp
"not to do the things that he was doing in the building";
and that when Popp, who was working a great deal of
overtime, "said something about on his own time," she told
him he needed to rest on his own time. Doyle denied that
she threatened any employee with discharge, or said
anything to Popp about discharge, but admitted that she
recommended to Fareri that Popp be discharged because
"It had just gotten to the point where with all this stirring
around that I was at my end, and I said well I would like to
have him or let him go."
Fares, who identified Popp as one of the two employees
most active in the Union and seen frequently with the
union organizers, also testified that his activity was
reported to her by some employees and by some supervi-
sors, but not by Doyle. She then admitted Doyle did talk to
her at one time about Popp, and that on "one occasion I
told Mrs. Doyle that she was to tell Mr. Popp that he was
not to engage in union activities during his working time."
I found Popp a candid and forthright witness and credit
his testimony. Accordingly, I find that Doyle, as she
admitted, told Popp he was prohibited from engaging in
union activities at any time on the Respondent's premises
and, further, that Doyle, as Popp credibly testified,
threatened him with discharge if he did not comply with
this prohibition.
About a week later, Popp and some other employees
were, as he testified, "sitting in the cafeteria before working
hours. . . . There was me and Pearl Dawson, Mary
Ritinger and a couple of other employees, I can't think of
their names, we were sitting there and Miss Fareri came
down the hall, looked in and she told me there were three
people let go from Presbyterian University for doing what I
was doing, and I said the only thing I am doing here is
talking. And she said bear that in mind and she turned and
walked away."
Fareri testified, on examination by Respondent's coun-
sel, that "Mr. Popp had been at the rear entrance of the
building talking with union organizers, and then came into
the building with a hand full of leaflets and commitment
cards and he met with a group of employees in the
cafeteria, every one of them were on working time and they
were having a discussion about the union. And I cautioned
Mr. Popp that since he was on duty that this was not
permitted. He was not to do this on working time. . . . I
do recall having told him that he was not to solicit for the
union on working time." On examination by the General
Counsel about this matter, Fareri also recalled that "I told
Bob Popp . . . that he was not to solicit for the union on
working time and that there had been two employees fired
from Presbyterian Hospital for similar activities . . . . That
they hadn't been recalled." While she admitted that
employees who come in early sometimes go to the cafeteria
and talk there, she maintained that this incident occurred
during the working hours of Popp and of the employees
with him. Her remarks, however, by her own testimony,
were addressed only to Popp and did not include a
directive that he and the other employees get to work.
On the basis of the demeanor of the witnesses and the
totality of the evidence, I credit Popp's testimony that this
incident occurred before he and the employees with him
were scheduled to begin work. I find further that Fareri
singled him out of the group because he was the one she
believed to be promoting the Union. I am convinced, and
find, in all the relevant circumstances, that Fareri's
statements to Popp that he was not to engage in union
activities "on working time" were intended by Fareri, and
understood by Popp, to mean at any time while on the
Respondent's premises, and that her references to dis-
charges for such activity at another establishment consti-
tuted implied threats of discharge if he persisted in his
union activities at any time on the Respondent's premises.
It is apparent, therefore, and I find, that the Respondent
prohibited union activity at any time on the Respondent's
premises under penalty of discharge, although the record
shows that employees were permitted to and did converse
with one another while at work. Furthermore, Fareri
testified, the Respondent had never "established a rule at
the Pavilion that there will be no solicitations, no selling
during working hours on Pavilion time" as "we have tried
to be kind to people," and the record shows that there was
widespread selling, with the knowledge of supervisors, of
cosmetics, raffle tickets,3 and other products.
(2) Mary Blackmann was employed as a maid in the
housekeeping department from February 17 to late July or
early August 1970. She testified that one day in July Doyle
asked her if she saw the union girl outside; that she replied
she came in the back door so did not, and then asked what
Doyle thought about the Union; and that Doyle replied:
. . if they get in why you aught make more money but
think how hard you are going to be working because they
are going to lay girls off and they are not going to have
enough money to pay everybody what the union is going to
give them and you are going to be doing your job and
other jobs and you are going to be working much harder.
And she said she didn't see where it was going to help us
none, so I just said to her, I guess not, and I just walked out
of her office, I was cleaning her office at the time." The
Respondent did not cross-examine Blackmann. Doyle's
testimony about this matter, on examination by the
Respondent, was as follows:
Q. Did you ever have any conversation with Mary
Blackman? About the union?
A. Well other than she was talking about the union
and I said well, Mary that is up to you, it is your own
' Fares testified that she bought some candy bars once from a night A No
aide, but did not recall any other employees ever asking her to buy Q Did you win a clock in a raffle within the last year or two?
anything She then testified further A Yes
Q Do you recall any employees asking you to buy any raffle She testified that the raffle ticket was sold to her by a nurse.
tickets9
FORBES PAVILION NURSING HOME 805
business what you do, they all talked at the building,
they didn't talk directly to me.
Q. Did you ever threaten her with a lay off?
A. I did not.
Q. Did you ever threaten any employee with
immediate termination if they solicited for the union on
Forbes Pavilion property?
THE WITNESS: No I did not. No I did not, because I
didn't.
I found Blackmann a more impressive and trustworthy
witness than Doyle and find, in accord with Blackmann's
credited testimony, that Doyle threatened that the work
would be harder and there would be layoffs if the Union
were successful.
(3) Martha Hooker, a registered nurse, was active in the
union organizing campaign although she was not in the
unit here involved. It was Hooker whom Fareri identified,
along with Popp, as the two employees most active in the
Union and whom she saw frequently with the union
organizers. Faren summoned Hooker to her office on one
occasion in May 1970 and confronted her with union
literature that a supervisor had taken from Hooker's desk
and turned over to Fareri. Hooker maintained that she had
the literature available for employees to read on their own
time. Fareri testified that "I did tell her that she was not to
have this literature available for employees to read during
their working hours, and I would retain it in my office and
she could avail herself of it after she was off duty'. I told
her that she was not to solicit during working hours."
Fareri also told Hooker she had in her office a transcript of
the representation case hearing which anyone who wished
to do so could read. She testified that she did so because
some of the union literature quoted parts of this record out
of context and "I felt that Miss Hooker played a part in
this."
Fareri testified, on examination by Respondent's coun-
sel, that on another occasion, in a conversation about a
claim of Hooker for overtime pay, "I did ask her how
much of that time she had spent in union activities while
on duty. . . . She said as she had continuously, she did not
spend her time with union activities on duty. . . . I was
aware that she was actively engaged in these activities
while she was supposed to be working." Fareri testified
further that she told Hooker she could prove this, and
explained in her testimony that the night supervisor told
her Hooker talked to other personnel "on several occasions
while they were on duty, and sometimes while she was on
duty, but sometimes she wasn't because she was there early
to talk to them." Her testimony continued as follows:
Q. (By Mr. Scheinholtz) Did you in words or in
substance ever tell Miss Hooker that you would fire her
if she continued to engage in union activities?
A. Yes I did.
Q. You did?
A. Yes.
Q. On working time or on nonworking time?
A. On working time.
Q. Did you ever tell her in words or in substance
that if she conducted these activities on non-working
time that she would be fired?
A. No I did not.
'Hooker was paid for 1 hour of the 1 hour and 35 minutes
of overtime she claimed on this occasion.
I find that Faren prohibited Hooker from engaging in
union activities at any time on the Respondent's premises,
and threatened Hooker with discharge in the event of
failure to comply with this prohibition. I find, therefore, on
the basis of the foregoing and the entire record, that Faren
,and Doyle, while permitting employees to sell products and
engage in other types of nonunion solicitation, prohibited
employees from engaging in union activities at any time on
the Respondent's premises and threatened discharge for
failure to comply with this prohibition,4 and that Doyle
threatened harder work and layoffs if the union campaign
were successful. I conclude and find that the Respondent
thereby interfered with, restrained, and coerced its employ-
ees in the exercise of the rights guaranteed in Section 7 of
the Act, in violation of Section 8(a)(1) of the Act.5
(4) Faren held meetings of employees, two on March 19
and two on March 24, which she testified were "concerning
the union election . . . to be held on March 26, 1971," and
at which she used prepared texts based on speeches made
prior to an election about 2 years earlier. She testified
variously that she read the texts, that she spoke from notes,
that she did both, that she added nothing to the prepared
texts, that at some meetings she added responses to
employee comments, and, as to a number of questions
counsel for the Charging Party asked Fareri about these
meetings, that "I don't recall." Faren explicitly denied,
however, that her remarks included the threats of changes
in working conditions in the event of a union victory that
were attributed to her by some of the employee witnesses.
It is clear from the texts of the speeches and Fareri's
testimony that she expressed the Respondent's opposition
to the Union, referred to the economic and other
advantages of working for the Respondent, and urged the
employees to vote against the Union. In view of the
variances and contradictions in the employee testimony as
to what Farerf said, however, and on the record as a whole,
I find that the evidence does not establish that Fareri made
the alleged threats in these speeches.6 Accordingly, I shall
recommend dismissal of these allegations of the complaint.
C. Promises and Grants of Benefits
The Respondent's wage policy included automatic
increases every 6 months during the first 3 years of
employment, and merit increases annually thereafter.
I See Comet Rice Mills Division, 195 NLRB No 117, in which the Board
recently held. "We regard a threat of job loss to be a serious deterrent to
organizational activity This is especially so where, as here, it is made in the
context of other expressions of hostility to unionization, albeit permissible,
and is addressed to the single employee identified by management as an
active solicitor of other employees on behalf of the Union "
5 N L R B v Miller-Charles & Co, 341 F 2d 870, 874 (C A 2), Campbell
Soup Company v N L R B, 380 F 2d 372 (C A 5) Crystal Tire Co, 165
NLRB 563, Varo, inc, 172 NLRB No 236, Texas industries, inc, 175
NLRB 1093. Goodyear Tire & Rubber Co, 195 NLRB No. 19, Daniel
Construction Company, Inc, 195 NLRB No 45, Comet Rice Mills Division,
supra
6 While Farerf at one point testified. "I did threaten them with more
strenuous working conditions;' I am convinced from the context of this
reply, a series of denials of alleged threats, that this was not an admission
but a typographical error in the transcript
806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Increases were given on or about the anniversary date of
the employee's hire. The automatic increases were within
fixed rate ranges depending upon classification. The
amounts of merit increases were determined by Fareri and
her assistant, Baher. The Respondent also at times granted
general increases.
The notice set forth below, addressed to all the
Respondent's employees and signed by Fareri, with the
closing "In your best interest," was dated and posted on
July 4, 1970:
The management of Forbes Pavilion is well aware of
the difficulty we all have in keeping up with the
increase in the cost of living. We have always
attempted to keep pace with increasing costs by giving
general increases to all of our employees, in addition to
regular incremental increases which they have earned.
As of June 28, 1970, in keeping with our past policies,
each of our employees will receive an increase in their
hourly rate in an amount that it is possible for us to pay
at this time. We believe this increase to be fair and
anticipate circumstances in the near future that will
enable us to give an additional pay increase.
We have been working on a Life Insurance program for
the employees of Forbes Pavilion for a considerable
length of time. This program will be in effect within
three months.
Service Award pins for employees with three or more
years of service are being prepared by the jeweler.
(These pins have been in process for several months.)
An "Award Dinner" date will be announced when the
pins are made.
I wish to take this opportunity to thank each of you for
your cooperation and interest in providing care for
"our" patients at Forbes. I know that all of the
employees, especially those who have been with us for
a long period of time really believe that there is
something more to working at Forbes than just
"showing up" for work on their scheduled days.
Fareri explained in her testimony, as to the grant of a
general increase effective June 28, that the Hospital
Council had recommended an increase, and that the
Respondent, although not a member, had in the past
granted increases recommended by the Council in order to
maintain its competitive position in the job market. The
Council's recommendation was made, however, as Fareri
admitted, on May 1, more than 2 months before the
Respondent announced and put into effect its general wage
increase. Moreover, the July 4 notice indicated that an
additional increase was anticipated "in the near future,"
although the Respondent was admittedly in such poor
financial condition that it laid off a number of employees
and closed one floor of the nursing home during the
T The allegation of the complaint regarding Fareri's announcement to
the employees of "a future pay increase and the institution of a new
insurance program in order to dissuade them from joining, supporting or
otherwise assisting the Union" does not include the announcement of a
general increase or the promise of service pins to be presented at an award
dinner These matters were contained in the same notice, however, were
fully litigated, and the issues as to the announcement of the general wage
increase were discussed in the briefs of both the Respondent and the
General Counsel
summer of 1970. Regarding the announcement of the
insurance program, which included group life and medical
provisions, Fareri testified that this had been planned for
some time, but she admitted that the July 4 notice was the
I first announcement to the employees of this insurance
program, which was promised to go into effect within 3
months and did become effective October 1, 1970. This
notice was also the first announcement of the grant of
service award pins that were being prepared by a jeweler
land were to be presented at an award dinner. No such pins
had been previously awarded and no such dinner had been
previously held. The pins were awarded at a dinner held in
,February 1971, about 7 months after the July 4 announce-
ment.
It thus appears that the Respondent on July 4, 1970, (1)
announced the grant of a general wage increase, (2)
I promised an additional increase to be granted "in the near
future," (3) announced for the first time an insurance
program that went into effect about 3 months later as
(promised, and (4) announced service award pins being
(prepared by a jeweler that were to be presented at an
award dinner, which promise was carried out about 7
months later.? These announcements and promises were
made, moreover, at a time when the Respondent was in
poor financial condition.
Fareri also in March 1971 gave I I employees retroactive
wage increases. She testified that Toluka, a maintenance
employee, about February 26 gave her a week's notice in
writing of his resignation; that she spoke to him about his
resignation on March 5 and learned then that one reason
for his leaving was the failure to receive an incremental
raise when it became due; that she assured him she would
,check and, if this were so, he would receive the increase
(retroactively even if he left; and that thereafter a
retroactive increase was given Toluka on March 6, 1971.8
Fareri testified further that after an investigation was
!made as to other possible omissions, she granted 10
additional retroactive increases , which became effective in
,the pay period ending March 20, 1971, a few days before
the election, and were paid on March 26, the day of the
-election. Farert testified that the Respondent sometimes
announced general increases but that she did not know of
any supervisors telling employees of other increases. On
this occasion, however, Fareri testified, she called each of
the 10 recipients to her office between March 5 and 20 to
tell them of their retroactive increases.
All 10 employees who were given retroactive increases
worked in the dietary department. The union organizers
had achieved considerable success in that department and
had signed up a majority of its 18 employees at the time
these increases were given. Although the retroactive
increases were given after checking the records for
errors-Farert testified variously that she or a clerk or both
8 Faren testified at one point that Toluka gave her the letter of
resignation but she did not look at it when he brought it in, and at another
that she was not present when he left the letter on her desk She also testified
at one point that she called Toluka into her office to ask why he was
resigning. at another that she made no attempt to get in touch with him after
reading his letter, but he called and made an appointment to see her on
March 5 Toluka, who has been reemployed by the Respondent , was not
called to testify
FORBES PAVILION NURSING HOME 807
checked the records-errors were made in giving these
increases. Faren admitted that such an error was made as
to Dolores Belt; that Belt was hired on August 20, 1967,
and should have received a merit increase on August 20,
1971; that instead a retroactive increase effective as of
February 20, 1971, was given Belt on March 26, the day of
the election. Farert also admitted that she thought at one
time increases had been given to Mary Lovas and Willia
Moore in error, but then determined their increases were
proper in view of changes that had been made in the status
of these employees. Before she learned this, as she testified,
"I did tell Mary Lovas that I thought that we had made an
error in her case, however, since I had already told her that
she was receiving this money she would receive it," that
this was "before the election," and that Lovas was paid
retroactively to February 20, 1971.
Faren explained in her testimony that the oversights of
10 out of the 18 in the dietary department occurred
because Connie Caputo, an admitted supervisor, was never
able, during the 2 years she was kitchen manager, to master
the mechanics of the automatic incremental raises, and
Baher, who was in overall charge of such matters, was out
ill for an extended period from late in January until late in
March 1971. Fareri admitted, however, that some dietary
department employees had received their increases while
Baher was out sick, and that one of the dietary department
employees received a retroactive increase in March 1971
going back as far as October 1970. She also admitted that
although Ronald Harbin, who had been for about 5 years
the building superintendent in charge of the housekeeping
and maintenance departments, had no problem with
payroll matters, Toluka, who was under Harbin's supervi-
sion, had been overlooked. She also testified that although
"I have not gone back and studied each employee in each
department," to her knowledge no employee in any
department was overlooked for increases other than
Toluka in maintenance and the 10 in the dietary depart-
ment. It developed, however, when she was examined on
the basis of records of the Respondent, that employees in
other departments had been overlooked but did not receive
their retroactive increases until after the election.
Schlienke, a maintenance employee, for example, received
on April 9, 1971, an increment due on December 27, 1970.
Fareri testified further that although Baher, who was in
charge of such matters, has been her assistant administra-
tor since 1967, was a certified public accountant, and had
never been found in error as to any increases prior to
March 1971, she gave the retroactive increases before he
returned to work although he apparently returned shortly
after these increases were given. Farert also testified that
she spoke to the head of the board of trustees about the
retroactive increases in March 1971, but that there was no
written report or communication with regard to this
matter.
The record shows, therefore, that the Respondent,
shortly after the Union began to organize its employees,
and at a time when its financial situation was poor,
announced and granted a general wage increase,9 promised
another increase in the near future, announced a new
insurance program10 and put it into effect as scheduled,
and announced and later carried out the preparation of
service pins by a jeweler and their presentation at an award
dinner. The Respondent also, Immediately prior to the
election, gave retroactive increases effective on the day of
the election to 10 of the 18 employees in the department in
which a strong union interest had been shown. I am
convinced, and find, that the timing and other circum-
stances of this conduct warrant "an inference that it was
designed to defuse the employees' union activity, particu-
larly in the absence of evidence of any legitimate economic
reason for the timing of the change," 11 and that the
Respondent's "series of specially timed announcements
... were designed to, and did, interfere materially with the
organizational rights of its employees." 12 Fareri testified
that she did not know when she gave the retroactive
increases which of the employees in the dietary department
had signed union cards. I find such knowledge immaterial
in the present circumstances. The promises and grants of
benefits were manifestly designed to impress upon all the
employees that such benefits were forthcoming from the
Respondent without the intercession of a union representa-
tive. As the Supreme Court has held: "The danger inherent
in well-timed increases in benefits is the suggestion of a fist
inside the velvet glove. Employees are not likely to miss the
inference that the source of benefits now conferred is also
the source from which future benefits must flow and which
may dry up if it is not obliged." 13 I find, in conclusion, that
the Respondent promised and granted benefits to its
employees in order to discourage membership in and
activities on behalf of the Union, and that the Respondent
thereby interfered with, restrained, and coerced its employ-
ees in the exercise of their Section 7 rights, in violation of
Section 8(a)(1) of the Act.14
IV. THE OBJECTIONS TO THE ELECTION
As noted above, a petition for an election was filed by
the Union in Case 6-RC-5534 on July 10, 1970. A
Decision and Direction of Election was issued on Novem-
ber 30, 1970, and an election was held on March 26, 1971,
in the following appropriate unit of the Employer's
employees:
All employees in the nursing, housekeeping, dietary,
and engineering and maintenance departments, includ-
ing licensed practical nurses and the activities director,
but excluding registered nurses, the social worker, the
payroll clerk, bookkeepers, the medical records clerk,
switchboard operators, and other office clerical em-
9 See Standard Fittings Co, 173 NLRB 42, 48, in which the Board,
holding a particular wage increase unlawful, found "totally unpersuasive"
the "attempted justification of the wage increase during a period when the
Company was in a 'tight financial situation' " See also Tower Records,
182 NLRB 382, enfd 79 LRRM 2736 (C A 9)
10 See Schuckman Press, 172 NLRB No 256, holding an announcement
of insurance benefits during a union campaign unlawful although the
insurance program had been initiated prior to the advent of the union
II American National Stores, Inc, 195 NLRB No. 3
12 Bryant Chucking Grinder Company, 160 NLRB 1526 , 1529, Bally Case
& Cooler, Inc, 172 NLRB No 106
I I N L R B v Exchange Parts Co, 375 U S 405, 409
14 M & W Marine Ways, Inc, 165 NLRB 191, Schuckman Press, supra,
N L V Casino Corp, d/b/a Silver Nugget. 174 NLRB 42 , 48, Gem Knits,
Inc, 174NLRB449,452
$08 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees, and guards, professional employees, and
supervisors as defined in the Act.
A tally of ballots showing the following results was duly
served on the parties:
1. Approximate number of eligible voters-121
2. Void ballots-0
3. Votes cast for Petitioner [Union]-45
4. Votes cast against participating labor organiza-
tion-49
5. Valid votes counted-94
6. Challenged ballots-6
7. Valid votes counted plus challenged ballots-100
8. Challenges are sufficient in number to affect the
results of the election
On March 29, 1971, the Union filed timely objections to
conduct affecting the results of the election. The Regional
Director, following an investigation, on June 30, 1971,
consolidated this case with the complaint cases, and
ordered a hearing to be held in the consolidated proceed-
ing to resolve the challenges and the objections.
A. The Challenged Ballots
Of the six ballots challenged at the election, which were
sufficient in number to affect the results, four were
challenged by the Union and two by the Employer. Prior
to the hearing herein, the Union withdrew all four of its
challenges, and at the hearing the Employer withdrew one
of its two challenges. The parties agreed that the Employer
had properly challenged the ballot of Antonio Vecchio.
The remaining five ballots to which challenges have been
withdrawn are sufficient in number to be determinative of
the election results. Accordingly, I shall direct that the
ballots of Norbert Harbin, Walter Harbin, Joan Harbin,
and Edward Sydlowski, which had been challenged by the
Union, and the ballot of Cylesta Jordan, which had been
challenged by the Employer, all of which challenges have
been withdrawn, shall be opened and counted.
B. The Objections
The Union filed timely objections to conduct affecting
the results of the election alleging that the Employer
granted wage increases to certain employees on the day of
the election, and threatened employees with economic
reprisals in order to discourage employees from voting in
favor of the Union. Counsel for the Union stated at the
hearing that he would present no evidence with regard to
the objections to the election as the evidence presented in
the complaint proceeding in his view sufficiently covered
the objections.
I have found above that the Employer engaged in
various unfair labor practices, including, during the critical
period between the Union's filing of the petition for an
election and the day of the election, Fareri's conduct in
prohibiting Hooker from engaging in union activities at
any time on the Employer's premises, threatening Hooker
that employees who did not observe this prohibition would
be discharged, and giving 10 employees in the dietary
department, in which a majority of the employees had
signed union cards, retroactive increases effective on the
day of the election, in order to discourage the employees'
union membership and activities.15 I find that such
conduct by the principal official of the Employer during
the critical period created an atmosphere which precluded
a fair election and effectively denied the employees their
statutory right to exercise a free choice in the election.16
I shall recommend, therefore, that the five ballots to
which the challenges were withdrawn be opened and
counted, and that the Regional Director thereafter prepare
and cause to be served on the parties a revised tally of
ballots, including therein the count of the said five ballots;
that if the Union receives a majority of the valid ballots
cast, according to the revised tally, the Regional Director
shall certify it as the exclusive bargaining representative of
the employees in the appropriate unit; and that if the
Union does not receive a majority, the election conducted
in Case 6-RC-5534 on March 26, 1971, shall be set aside
and a new election held when the Regional Director deems
that the circumstances permit a free choice of a bargaining
representative. i 7
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with its operations de-
scribed in section 1, above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among
the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
VI. THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices violative of Section 8(a)(1) of
the Act, I shall recommend that it be ordered to cease and
desist therefrom and from in any like or related manner
interfering with its employees' Section 7 rights, and that it
take certain affirmative action designed to effectuate the
policies of the Act. I shall also recommend that nothing
contained in the recommended order shall be construed as
requiring the Respondent to revoke any wage increases or
other employee benefits previously promised or granted.18
Upon the basis of the foregoing findings of fact, and
upon the entire record, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce 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.
15 1 find the evidence does not establish that Doyle's threats to N L V Casino Corp, d/b/a Silver Nugget, 174 NLRB 42, 45, Tower Records,
Blackmann were made in the critical period While Blackmann testified that supra
the conversation occurred in July, before her layoff in late July or early 17 Gary Aircraft Corporation, 193 NLRB No 21
August, she was unable to state how long before iN Exchange Parts Co, supra, Yale Rubber Manufacturing Company, 193
16 Wilkinson Mfg Co v N L R B, 456 F 2d 298 (C A 8, March 1972), NLRB No 24
FORBES PAVILION NURSING HOME 809
3. By engaging in surveillance of its employees' union
activities and creating the impression that such activities
were being kept under surveillance, prohibiting employees
from engaging in union activities at any time on the
Respondent's premises, threatening discharge for failure to
comply with this prohibition, threatening harder work and
layoffs if the Union were successful, and promising and
granting benefits in order to discourage membership in and
activities on behalf of the Union, the Respondent has
interfered with, restrained, and coerced its employees in
the exercise of the rights guaranteed in Section 7 of the
Act, and has thereby engaged in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record herein, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended: 19
purposes of collective bargaining with the Employer, the
regional Director for Region 6 shall, pursuant to the
Board's Rules and Regulations, Series 8, as amended,
within 10 days from the date of this Direction, open and
count the ballots of Norbert Harbin, Walter Harbin, Joan
Harbin, Edward Sydlowski, and Cylesta Jordan, and
thereafter prepare and cause to be served on the parties a
revised tally of ballots, including therein the count of said
five ballots; if the Union receives a majority of the valid
ballots cast, according to the revised tally, the Regional
Director shall certify it as the exclusive bargaining
representative of the employees in the appropriate unit;
and, if the Union does not receive a majority, the election
conducted in Case 6-RC-5534 on March 26, 1971, shall be
set aside, and that case remanded to the Regional Director
for Region 6 to conduct a new election when he deems the
circumstances permit a free choice of a bargaimng
representative.
ORDER
The Respondent, Forbes Pavilion Nursing Home, Inc.,
Pittsburgh, Pennsylvania, its officers, agents, successors,
and assigns, shall.
1. Cease and desist from:
(a) Engaging in surveillance of its employees' union
activities and creating the impression that such activities
are being kept under surveillance, prohibiting employees
from engaging in union activities at any time on the
Respondent's premises, threatening discharge for failure to
comply with this prohibition, threatening harder work and
layoffs if the Union is successful, and promising and
granting benefits in order to discourage membership in and
activities on behalf of the Union
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of the
rights guaranteed in Section 7 of the Act, except that
nothing contained herein shall be construed as requiring
the Respondent to revoke any wage increases or other
benefits previously promised or granted.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Post at its Pittsburgh, Pennsylvania, operation copies
of the attached notice marked "Appendix."20 Copies of the
said notice, on forms provided by the Regional Director
for Region 6, after being duly signed by the Respondent's
authorized representative, shall be posted by it immediate-
ly upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent
to insure that said notices are not altered, defaced, or
covered by any other material.
(b) Notify said Regional Director, in writing, within 20
days from the receipt of this Decision, what steps have
been taken to comply herewith.21
IT IS FURTHER RECOMMENDED that the complaint be
dismissed insofar as it alleges violations of the Act not
specifically found herein.
IT IS HEREBY DIRECTED that, as part of his investigation in
Case 6-RC-5534 to ascertain representatives for the
19 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
20 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 "
21 In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read
"Notify the Regional Director for Region 6. in writing , within 20 days from
the date of this Order , what steps the Respondent has taken to comply
herewith "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT engage in surveillance of our employ-
ees' activities on behalf of National Union of Hospital
and Nursing Home Employees, a Division of RWDSU,
Local 1199-P, AFL-CIO, or any other labor organiza-
tion, or create the impression that such activities are
being kept under surveillance; prohibit employees from
engaging in union activities at any time on our
premises; threaten discharge for failure to comply with
this prohibition; threaten harder work and layoffs if the
aforesaid union is successful; or promise or grant
benefits in order to discourage membership in or
activities on behalf of the aforesaid union, except that
nothing contained herein shall be construed as requir-
ing us to revoke any wage increases or other benefits
previously promised or granted.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of the rights guaranteed in the National Labor
Relations Act.
810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FORBES PAVILION NURSING This notice must remain posted for 60 consecutive days
HOME, INC. from the date of posting and must not be altered, defaced,
(Employer) or covered by any other material.
Any questions concerning this notice or compliance with
Dated By its provisions may be directed to the Board's Office, 1536
(Representative) (Title) Federal Building, 1000 Liberty Avenue, Pittsburgh, Penn-
sylvania 15222, Telephone 412-642977.
This is an official notice and must not be defaced by
anyone.