Gloria's Manor Home For Adults

National Labor Relations Board - Board Decisions

Sep 1, 1976

225 N.L.R.B. 1133 (N.L.R.B. 1976)

GLORIA'S MANOR HOME FOR ADULTS
Jo-Jo Management Corp ., d/b/a Gloria's Manor
Home For Adults and Local 1115 , Joint Board,
Nursing Home & Hospital Employees Division
Jo-Jo Management Corp ., d/b/a Gloria's Manor
Home for Adults and Local 1115 , Joint Board,
Nursing Home & Hospital Employees Division and
Medical & Health Employees Union , Local 4, Of-
fice & Professional Employees International Union,
AFL-CIO, Party in Interest
Medical & Health Employees Union, Local 4, Office
& Professional Employees International Union,
AFL-CIO and Local 1115 , Joint Board Nursing
Home & Hospital Employees Division and Jo-Jo
Management Corp ., d/b/a Gloria's Manor Home
for Adults , Party in Interest . Cases 29-CA-4050,
29-CA-4250, and 29-CB-2065
September 1, 1976
DECISION AND ORDER
BY MEMBERS FANNING, PENELLO, AND WALTHER
On March 31, 1976, Administrative Law Judge
Jennie M. Sarrica issued the attached Decision in
this proceeding. Thereafter, Respondent Employer
filed exceptions and a supporting brief. The General
Counsel filed cross-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 briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt her recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent Employer, Jo-Jo Man-
agement Corp., d/b/a Gloria's Manor Home for
Adults, Rockaway Beach, New York, its officers,
agents, successors, and assigns, and the Respondent
Union, Medical & Health Employees Union, Local
4, Office & Professional Employees International
Union, AFL-CIO, its officers, agents, and represen-
tatives, shall take the action set forth in the said rec-
ommended Order, except that the attached notice
1133
marked "Appendix B," is substituted for that of the
Administrative Law Judge.2
' Member Penello and Member Walther agree with the Administrative
Law Judge that it would not serve the purposes of the Act to defer to
arbitration in this case , but do so only on the ground that the interests of the
Respondent Union are in substantial conflict with employee O'Toole's be-
cause of his activities on behalf of the rival union
2 Based upon the Adminis trative Law Judge's recommended Order, part
B, I, (a), it is apparent that, in the recommended "Notice to Members," in
the first paragraph thereof beginning with "WE WILL" and immediately
preceding the word "means," the phrase "unless si.ch employees are clearly
and unequivocally offered an alternative" was inadvertently omitted
APPENDIX B
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had the chance to
present evidence and arguments, the National Labor
Relations Board has found that we violated the Na-
tional Labor Relations Act, and has ordered us to
post this notice and carry out its terms.
WE WILL NOT threaten to have employees of
Jo-Jo Management Corp., d/b/a Gloria's Man-
or Home for Adults, discharged for refusing to
sign dues-checkoff authorizations, or for refus-
ing to sign any other document.
WE WILL NOT cause or attempt to cause Jo-Jo
Management Corp., d/b/a Gloria's Manor
Home for Adults, to discharge its employees for
refusing to sign dues-checkoff authorizations or
other documents or for failure to pay dues and
fees not uniformly required as a condition of
employment.
WE WILL no longer use a card entitled "Appli-
cation and Check-off Authorization Blank," or
any similar dual-purpose card which serves as
both a union membership application and as a
dues-checkoff authorization in securing the
membership of any employee covered by a col-
lective-bargaining contract under which employ-
ees are required to become or remain union
members as a condition of employment , unless
such employees are clearly and unequivocally
offered an alternative means of applying for
membership without authorizing a checkoff.
WE WILL, jointly and severally with Jo-Jo
Management Corp., d/b/a Gloria's Manor
Home for Adults, reimburse Mary Abernethy,
William Cleary, Katheryn Curry, Joan Gruenke,
and Wanda Sullivan, for any loss of pay, with
interest, by reason of their discharges.
WE WILL NOT in any other manner restrain or
225 NLRB No. 156
1134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
coerce employees in the exercise of rights guar-
anteed in Section 7 of the Act.
MEDICAL & HEALTH EMPLOYEES UNION,
LOCAL 4, OFFICE & PROFESSIONAL EMPLOYEES
INTERNATIONAL UNION, AFL-CIO
DECISION
enterprises located in the State of New York which in turn
had received said products directly from suppliers located
outside the State of New York
Respondents admit and I find that Respondent Employ-
er is now, and has been at all times material herein, an
employer within the meaning of Section 2(2) of the Act,
engaged in commerce and in operations affecting com-
merce within the meaning of Section 2(6) and (7) of the
Act.
STATEMENT OF THE CASE
JENNIE M. SARRICA, Administrative Law Judge: This is a
proceeding under Section 10(b) of the National Labor Re-
lations Act, as amended (29 U.S.C. 151, et seq), hereinaf-
ter referred to as the Act. Based on charges filed on Octo-
ber 16, 1974, a complaint was issued on January 31, 1975,
presenting allegations that Jo-Jo Management Corp.,
d/b/a Gloria's Manor Home for Adults, hereinafter re-
ferred to as the Respondent Employer, committed unfair
labor practices within the meaning of Section 8(a)(1), (3),
and (4) and Section 2(6) and (7) of the Act. The Respon-
dent Employer filed an answer denying that it committed
the violations of the Act as alleged. Thereafter separate
charges were filed on March 7, 1975, and a consolidated
complaint was issued on May 30, 1975, presenting allega-
tions that Respondent Employer had engaged in further
violations of Section 8(a)(1), (2), and (3) of the Act and
that Medical & Health Employees Union, Local 4, Office
& Professional Employees International Union, AFL-CIO,
hereinafter referred to as the Respondent Union or Local
4, had committed unfair labor practices within the mean-
ing of Section 8(b)(1)(A) and 8(b)(2) and Section 2(6) and
(7) of the Act. The foregoing proceedings were consolidat-
ed for hearing by order dated June 3, 1975. The Respon-
dents filed timely answers respectively denying that each
committed the violations of the Act alleged. Upon due no-
tice, the consolidated matter was tried before me at Brook-
lyn, New York, on July 29, 30, and 31 and August 1, 6, 7,
8, and 11, 1975. Representatives of all parties entered ap-
pearances and had an opportunity to participate in the pro-
ceeding.
Based on the entire record, including my observation of
the witnesses, and after due consideration of the brief filed
by Respondent Employer and the oral argument of the
General Counsel, I make the following:
FINDINGS AND CONCLUSIONS
1. JURISDICTION
Respondent Employer, a New York corporation with
principal offices at Rockaway Beach, New York, is en-
gaged in the operation of a nursing home and home for the
aged with related facilities. During the year preceding is-
suance of the initial complaint, a representative period, Re-
spondent Employer, in the course and conduct of its busi-
ness operations, derived therefrom gross revenues in excess
of $100,000. During that period, Respondent Employer
purchased and caused to be delivered to its place of busi-
ness products valued in excess of $50,000 received from
II THE LABOR ORGANIZATIONS
Respondent Union, and Local 1115, Joint Board, Nurs-
ing Home & Hospital Employees Division, hereinafter re-
ferred to as Local 1115 or as the Charging Party, are each
labor organizations within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
1. Whether Respondent Employer engaged in unlawful
threats, interrogation, and warnings, gave the impression of
surveillance, and otherwise interfered with employees' Sec-
tion 7 rights in violation of Section 8(a)(1) of the Act.
2. Whether Respondent Employer rendered unlawful
assistance and support to Respondent Union through the
foregoing conduct and/or by deducting from wages sums
of money as union dues without prior checkoff authoriza-
tions, in violation of Section 8(a)(2) of the Act.
3. Whether Respondent Employer discharged O'Toole
because of his activity on behalf of Local 1115, because he
participated in filing a deauthorization petition with the
National Labor Relations Board to rescind the union-se-
curity provisions of the agreement between Local 4 and
Respondent Employer, in violation of Section 8(a)(3) and
(4) of the Act.
4. Whether the Board should defer to the arbitration de-
cision issued in the matter of the O'Toole discharge.
5. Whether Respondent Union requested the discharge
of five named employees for unlawful reasons and whether
Respondent Employer, when it discharged them, knew, or
should have known, that the request for the discharges un-
der the existing union-security contract was not based on
failure to pay dues and initiation fees uniformly required
under that agreement, in violation of Section 8(b)(2) and
(1)(A) and Section 8(a)(3) and (1), respectively
B. Background
Donald O'Toole was hired by Respondent Employer in
April 1974 as a dishwasher. He joined Respondent Union
that month and solicited union authorization cards from
employees on behalf of Local 4. On May 1, 1974, Respon-
dent Employer and Respondent Union executed a 3-year
collective-bargaining agreement containing lawful union-
security and checkoff clauses. In the office and presence of
Joseph Hagler, administrator of Gloria's Manor Home for
Adults, and secretary-treasurer of Jo-Jo Management,
GLORIA'S MANOR HOME FOR ADULTS 1135
O'Toole was appointed union steward by Bob Gordon,
then president of Local 4.
Sometime thereafter O'Toole asked Gordon for a copy
of Local 4's contract with Respondent Employer and was
told by Gordon that there was none. In late June 1974,
because of employee inquiries, O'Toole again contacted
Gordon and asked about a contract. When Gordon stated
that the employees had no contract, O'Toole requested that
Gordon come and speak with employees. This Gordon did
in early July.'
C. The Rival Union Activity
In mid-July 1974, O'Toole contacted Bill Morales, busi-
ness agent of Local 1115, and arranged a meeting with him
for Gloria's Manor employees. O'Toole, thereafter, solic-
ited their signatures on Local 1115's authorization cards A
few days after Local 1115 met with the employees, Hagler
confronted O'Toole with a list of names of the employees
who attended that meeting. Hagler questioned O'Toole for
an explanation of why the employees were not satisfied
with Local 4, and why they were turning to Local 1115.
Hagler informed O'Toole that this was causing nothing but
problems and accused O'Toole of turning against him.
O'Toole responded that his concern was for the benefit of
the employees and Hagler took exception to this statement.
With respect to the list of employees' names, O'Toole testi-
fied that Hagler stated he had paid $5 to someone who was
at the meeting in exchange for naming those who attended.
O'Toole further testified that on a subsequent occasion in
Hagler's office in late July 1974 Hagler told O'Toole that
he knew a lot of people and, because of O'Toole's activities
on behalf of Local 1115, Hagler could see to it that
O'Toole was fired.
Hagler specifically denied the statement relating to the
$5 cost of the list and affirmatively asserted that the only
conversation he had with O'Toole relating to O'Toole's Lo-
cal 1115 activities occurred on an occasion when he arrived
at the Home at 8:30 a.m. to find that the residents had not
been called to breakfast. Upon entering the kitchen to as-
certain why, he was informed by the chef that it was be-
cause of the union meeting that was going on; O'Toole,
who had already punched out,' the dishwasher, and several
waitresses had been discussing Local 1115. On that occa-
sion Hagler told O'Toole he would be better off if he would
concentrate more on his work than on holding up opera-
tions. Hagler further testified that he first became aware of
employee activity on behalf of Local 1115 when an em-
ployee told him that the employees had been given cards to
sign for Local 1115. This was before he received notifica-
tion of a Local 1115 petition for a representation election
filed with the National Labor Relations Board on July 20,
1974. When he received the official notification, Hagler
called a meeting of his employees and told them he had a
contract with Local 4 and that he had engaged them to
1 Testimony indicates that the matter of dues and initiation fees was dis-
cussed at this meeting and Gordon made certain waiver and deferral com-
mitments Gordon died in early August and his successor subsequently reaf-
firmed his commitments
2 Sometime during July, O'Toole had been transferred to the job of night
switchboard operator and security man
work under those circumstances He asked employees,
"What happened now?" At that time O'Toole spoke to Ha-
gler and told Hagler he was a chief adherent of Local 1115.
I find in Hagler's testimony confirmation of that of
O'Toole, at least in context. Thus, although Hagler asserts
there was only one conversation with O'Toole regarding
Local 1115 activities, Hagler fixes the context of at least
two such conversations: one after he received official noti-
fication of Local 1115's representation petition during
which O'Toole declared his advocacy of Local 1115 and
another when he singled out O'Toole in the kitchen inci-
dent to lecture him about devoting his efforts on behalf of
Local 1115, despite the fact that O'Toole, alone among the
group of employees gathered there, was not on working
time, thus indicating it was union activity rather than any
inattention to work by those on duty that most disturbed
Respondent Employer. Hagler's testimony as to when he
first learned of union activity of employees in connection
with Local 1115 reveals that an employee did report the
distribution of Local 1115 authorization cards. This first
occurred at the Local 1115 meeting in mid-July, and would
fix the date of such report after that meeting and before
July 20, precisely the time set by O'Toole as the occasion
when Hagler told him of an employee's report of the meet-
ing. In these circumstances, I credit O'Toole's testimony.
Accordingly, I find that Hagler engaged in unlawful in-
terrogation of O'Toole concerning employees' activities on
behalf of Local 1115 and their reasons therefor,3 in viola-
tion of Section 8(a)(1) of the Act. Hagler's claim to having
a source of information as to which employees attended
the Local 1115 meeting gave the impression that the union
activities of employees were under surveillance and Re-
spondent Employer thereby violated Section 8(a)(1) of the
Act. Additionally, Hagler's statement that he could see to it
that O'Toole was fired and Hagler's kitchen incident lec-
ture constitute warnings and threats of reprisal for his ac-
tivities on behalf of Local 1115, which are independent
violations of Section 8(a)(1) of the Act.
D. The Circumstances of O'Toole's Discharge
Petitions were circulated among employees for the pur-
pose of obtaining a deauthorization election. The first was
dated August 19, 1974; the second bears dates of signa-
tures on September 6 and 7. O'Toole was signatory to both
and a named sponsor of the latter. On September 10, 1974,
a union deauthorization petition, Case 29-UD-92, was
filed with the Board's Regional Office by the sponsors of
the second employee petition. Respondent received a copy
of the deauthorization petition on September 12. O'Toole
was discharged on September 16, 1974.
As previously noted, O'Toole was transferred to night
switchboard operator and security man sometime in July.
In this assignment, he worked from 10 p.m. until 6 a.m.
and at times until 8 a.m., 4 days a week. His security duties
J Hagler's admitted questioning of employees at the meeting called by
him after he received Local I I15's petition falls within the same category
However, without more evidence as to what was said by him in this respect
on that occasion, I have considered this as support for the conclusion that
Respondent Employer did engage in interrogation but do not find in it an
independent 8(a)(1) violation
1136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
required him to lock the gates at both ends of the building
grounds which covered a city block, lock the doors to the
building and make the rounds of the building every 2 hours
throughout the night, in the course of which he traversed
the corridors and stairwells of a four-story building one
block long, and punched eight separately located stations
for the "detex clock system." Each such round consumed
approximately 10-15 minutes. As switchboard operator he
was to respond to any calls or signals from residents and
investigate what their needs were, including going to the
room, and calling a doctor, and/or an ambulance, when
medical attention was needed. In addition, O'Toole was
occasionally required to perform porter work, including
vacuuming the lobby rug and mopping the dining room
floor. During periods when he was absent from the switch-
board, a microphone system, which would relay the switch-
board signals to him wherever he might be, was placed into
operation.
About 1:30 a.m. on September 16, 1974, O'Toole went to
the kitchen refrigerator for food to take with him to the
switchboard.4 As he was closing the refrigerator door Hag-
ler entered, excitedly accusing O'Toole of leaving the
switchboard unmanned and, proclaiming he was going to
fire O'Toole. Hagler directed O'Toole to follow him to the
office. O'Toole attempted to respond that the switchboard
microphone was on Once in the office, Hagler took out a
file and displayed to O'Toole petitions relating to the 9(e)
action referred to above on which O'Toole's signature ap-
peared.' Hagler stated, inter aka, that O'Toole's actions in
support of Local 1115 were not doing him any good and
were costing Hagler "a bundle for legal fees." Hagler said
he felt O'Toole had turned against him and was of no fur-
ther use to him, and he was discharging O'Toole; going to
"throw him out in the street," and "Local 1115 was not
going to do anything for him or anybody else." Hagler
asked O'Toole to write on company stationery a statement
that he was wrong in doing whatever Hagler accused him
of doing. O'Toole refused. Hagler then accused O'Toole of
negligence on the job-specifically, of not bringing chairs
into the building at night. O'Toole referred Hagler to their
previous conversation concerning this matter.6
4 O'Toole testified that he was supposed to eat his meal at the switch-
board and that he was not eating in the kitchen but had merely gone there
to get food O'Toole denied he was ever informed he was to eat before 10 30
when the evening switchboard operator was still on duty At first Hagler
testified that the only instruction he gave O'Toole was that he was to eat at
the switchboard, and he never complained Hagler also stated he never gave
O'Toole instructions about getting food Later Hagler testified that O'Toole
had the option of going to the kitchen when he came to work between 10
and 10 30 p in and eating a meal prepared by the chef or of bringing his
own food and eating at the switchboard Still later Hagler testified he left
instructions with the evening switchboard operator for the night man that
he should come in a half hour early to receive instructions and to get food
from the refrigerator because he was not to leave the switchboard and had
no lunch break The inconsistencies in his testimony are obvious and make
his testimony unreliable
5 O'Toole testified he did not know that a union-security contract be-
tween the Employer and Local 4 existed and that he understood the two
documents he signed seeking a 9(e) election were to rescind the dual-pur-
pose union membership checkoff cards signed in favor of Local 4 He fur-
ther testified that he was never relieved of his position as shop steward for
Local 4, had never received a copy of Local 4's contract with Respondent
Employer, and never saw one until after his discharge
6 O'Toole testified that he was instructed by Hagler at one time to bring
According to O'Toole, before he left the premises, Ha-
gler stated that he would consult with his attorney to ascer-
tain whether it would be in his best interest to hire O'Toole
back and that O'Toole should come in to see him the fol-
lowing Thursday. When O'Toole returned on the designat-
ed day, Hagler stated he had been unable to reach his law-
yer and had decided to let the discharge stand, adding that
there was nothing personal in it, but that O'Toole's in-
volvement with Local 1115 rendered him of no further use.
According to Hagler, he found O'Toole in the kitchen at
1:30 a.m. preparing food for himself and told him to punch
out and leave. O'Toole followed him into the lobby and
asked him to reconsider. He refused. Hagler denied asking
O'Toole to sign anything when he discharged O'Toole.
Hagler denied offering O'Toole $200 either to come back
to work or not to come back.? Hagler also denied telling
O'Toole he was costing a bundle of money in lawyers fees
or that Local 1115 was the cause of his problems, that he
was being fired because of his Local 1115 activity, or that
Hagler could not hire him back because of his Local 1115
activity.
Hagler related two additional incidents which occurred
during O'Toole's employment as night switchboard opera-
tor and security man. One involved an occasion when a
resident needed an ambulance and it was reported that
O'Toole had to be signaled at the switchboard 8 or 10
times. On the other occasion O'Toole was going to be late
so he called in and a fellow employee punched his timecard
for him before he arrived. Hagler confronted O'Toole at
the time and warned him not to repeat such conduct.
Respondent Employer contends that O'Toole's testimo-
ny should not be credited because he testified that what
Hagler took from the file and threw on the desk at the time
of discharge were the two petitions that had been circulat-
ed for signatures among employees and the General Coun-
sel admitted that the Board does not supply an employer
the lawn chairs into the building when he secured the gates and doors and
to put them in a designated place O'Toole pointed out to Hagler that if he
placed the chairs there they would block the fire exit and constitute a dan-
ger to the residents O'Toole told Hagler that from the switchboard he
would be able to see the chairs in the front lawn and that , as long as he was
responsible for security and safety of the residents , he would not place the
chairs where Hagler had designated Hagler made no comment in response
and O'Toole continued to leave the chairs in their normal location O'Toole
testified that he had never received a complaint about doing so
Hagler testified that the morning porter reported to him that some out-
door chairs were missing Hagler knew this to be true because he knew how
many he had purchased That evening he spoke to O'Toole about bringing
in furniture Hagler admitted that O 'Toole protested regarding stacking the
chairs in the designated fire exit and asserted he told O'Toole if he could not
put the chairs in the fire exit to put them in the front lobby Hagler stated
that O'Toole never refused to bring in the outdoor furniture but frequently
did not do so Hagler stated he had received complaints about the furniture
being left out three , four, or five times , but had no such complaint on the
evening of O'Toole's discharge
r O'Toole testified that sometime in December 1974 he received through
his brother , who still works at Gloria's Manor, a message to contact Hagler
In Hagler's office , where he went in response to this message , Hagler told
O'Toole that the case at the National Labor Relations Board was becoming"
too much of a hassle and offered O'Toole his job back and $200 O'Toole
declined O'Toole began new employment elsewhere on December 22, 1974,
and testified that he was not interested in returning to his old job at this
time I view this testimony as relating to attempted settlement and therefore
as having no bearing upon the merits of the case However , O'Toole's testi-
mony with respect to his lack of interest in reinstatement is relevant in
fashioning the remedy
GLORIA'S MANOR HOME FOR ADULTS 1137
with copies of documents supplied to support a UD peti-
tion. However, there is no evidence that either of the two
documents identified was actually used to support the peti-
tion filed with the Board. Nor is there evidence proving
that no copies of those documents were made which could
have found their way into the file of Respondent. More-
over, even if O'Toole was mistaken as to what documents
were shown him, this would hardly be sufficient cause to
destroy his credibility when their display was made in the
distracting context of his being discharged. I find O'Toole's
testimony generally credible.
The General Counsel emphasizes the timing of the dis-
charge in relation to Respondent Employer's notification
of the deauthorization petition and the precipitous nature
of the discharge as pointing to an unlawful motive. The
timing clearly suggests that the presence of O'Toole's name
on the UD petition as a sponsor was a precipitating factor.
Hagler's annoyance with O'Toole's Local 1115 advocacy
admittedly had been clearly expressed to O'Toole when he
caught O'Toole in the kitchen while off duty discussing the
merits of Local 1115 with fellow employees and warned
him that such activity was not to his own best interest.
According to Hagler's own version , he remained at the
Home for the night for the purpose of performing certain
official duties and had retired before O'Toole came on
duty. When he was unable to sleep he came to the kitchen
where he found O'Toole preparing his food, and simply
told O'Tocie to punch out and leave. Hagler's own vascil-
lating testimony as to what O'Toole's instructions were
with respect to his meals while on duty, together with relat-
ed facts; namely, that many of O'Toole's official duties
required him to be away from the switchboard, and a mi-
crophone system enabled O'Toole to monitor the switch-
board wherever he might be; O'Toole was not eating his
meal in the kitchen but merely getting it to carry back to
the switchboard,8 not clearly against any rule or instruc-
tion , and no emergency or even inconvenience had been
caused by his absence from the switchboard on this occa-
sion , convinces me that his presence in the kitchen was not
the real cause for O'Toole's discharge. Nor do I find in
Hagler's alleged comment after O'Toole's discharge that he
had given O'Toole a number of chances a sufficient basis
for finding any prior work incident to be part of the cause
for discharge. There is no evidence that there had been any
prior warning or reprimand relating to the outdoor furni-
ture or to any delay in responding to a switchboard signal.9
The verbal reprimand relating to punching the timeclock
8 In this respect, I also note the inconsistency in Hagler's testimony at the
hearing herein and the statement of facts attributed to him by the arbitrator
in the decision rendered on O'Toole 's discharge to the effect that O'Toole
was seated eating his meal in the kitchen
9 Residents in difficulty had only to remove the phone from the cradle to
signal for help With the microphone system in operation, it was necessary
for O'Toole to return to the switchboard from any location in order to
identify the room originating the signal or to answer the phone His return
to the switchboard, of necessity, would require time And, with his other
work assignments requiring his absence from the switchboard, it would be
inevitable that occasions would arise and complaints would occur when the
switchboard did not respond immediately Accordingly, I place no signifi-
cance on testimony concerning the few complaints which occurred, since
obviously Respondent Employer did not find them significant at the time
Further , the matter of missing lawn chairs and the night storage of these had
carried no general warning of discharge and the only other
warning was related to O'Toole's union activity on behalf
of Local 1115 and, as found above, was unlawful.
In all the circumstances , and on the basis of the credited
testimony, I find that Respondent Employer discharged
O'Toole because of his union activity on behalf of Local
1115 and because he sponsored the petition filed with the
Board to withdraw authority to maintain the union -securi-
ty provisions of Respondent Employer's contract with Lo-
cal 4. In discharging O'Toole for these reasons, and in re-
fusing to reinstate him, I find that Respondent Employer
violated Section 8(a)(3), (4), and (1) of the Act.
Respondent Employer has presented a copy of an arbi-
tration decision issued October 31, 1974, and urges the
Board to defer to that decision in which it was found that
Donald O'Toole was discharged for dust cause. The Gener-
al Counsel opposed deferral on grounds that there was no
adequate notice, and Local 4's interests were not in harmo-
ny with those of O'Toole because of his activities on behalf
of Local 1115.
The arbitration hearing was conducted on October 25,
1974. The only notice of hearing given was a telegram dis-
patched by Local 4 at 11:25 a.m. on October 23, 1974. Two
days is hardly adequate notice to prepare for such a pro-
ceeding. Moreover , there is no evidence that such notice
was actually received by O'Toole, and O'Toole denies that
he received it, asserting that his first knowledge of the arbi-
tration came at the time he visited the Board 's Regional
Office on November 22, 1974. Nor does it appear that any
of the contractual grievance procedure steps short of arbi-
tration were followed which might have given O'Toole ad-
vance warning that a proceeding involving his interest and
rights was about to take place. I agree with the General
Counsel that no adequate notice of the proceeding was
given. I also agree that O 'Toole's activities in earlier at-
tempting to displace Local 4 with Local 1115 and his activ-
ities, concurrent with the discharge, of attempting to re-
voke union-security provisions in Local 4's contract clearly
establish that his conduct was diametrically opposed to the
interests of Local 4 and that this raises a presumption that
Local 4 would not adequately protect O'Toole' s interests.
In such circumstances, deferral to an arbitration award is
not appropriate.10
E. Other Events Following Rival Union Activity
The first pay period in September 1974, and each suc-
ceeding month thereafter, Respondent Employer deducted
union dues from the pay of each employee covered by the
May 1, 1974, contract with Local 4. A number of employ-
ees had not signed Local 4's dual-purpose union member-
been the subject of an earlier discussion without a warning being issued and,
although Hagler admittedly knew O'Toole was not bringing in the chairs on
a number of occasions , this was not viewed to be of sufficient significance to
warrant his insistence that they be brought in, or a warning Accordingly, I
find that these matters had no bearing on the cause for O'Toole's discharge
10 Spielberg Manufacturing Company, 112 NLRB 1080 (1955), Booth Serv-
ices, Inc, 206 NLRB 862, 866 ( 1973) Moreover, because questions of viola-
tions of Sec 8(a)(4) involve , not matters concerning the administration of a
contractual relationship , but the protection of the integrity of the Board's
own process, which the Board, itself, can best police , I find deferral to
arbitration inappropriate for this additional reason
1138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ship application and checkoff. card," including Mary
Abernethy, William Cleary,12 Katheryn Curry, Joan
Gruenke, and Wanda Sullivan , who were later discharged
for failure to meet their dues obligations under the union-
security provisions of the contract.
According to Hagler, after the Local 1115 union activity
began in mid-July, he advised every new employee he in-
terviewed that the Company had a collective-bargaining
agreement with Local 4, and that there was another union
on the scene trying to make some kind of a disturbance,
but his contract was with Local 4 and it made no difference
to him what they thought about unions. All employees dis-
charged under the union -security provisions were hired af-
ter such rival union activity began Although each verified
some similar conversation wherein Hagler told each the
Company was having union problems in that one union
was there and another one was trying to get in, three testi-
fied that Hagler did not identify the unions involved and
two recalled his statement that it was up to the employee
whether he or she wanted to become a union member.
Only Curry, hired after the first checkoff deductions were
made, testified that Hagler told her the Company had a
contract with a union. She was told by Hagler that she
would automatically become a member and would have to
pay union dues. He did not mention initiation fees or how
much the union dues would be. Even Hagler 's testimony
does not suggest that he advised employees of the union-
security obligations under the contract and, assuming Ha-
gler was as explicit as Curry indicates when he hired her,
the advice was not accurate as to what steps she was re-
quired to take under the union-security provisions to retain
employment . Nor did any Local 4 representative take any
steps to do so, despite the fact that early in her employ-
ment Curry asked Shop Steward Evelyn O'Connor to see a
business agent of Local 4.
Dues were first deducted from the pay of Abernethy,
Cleary, Gruenke, and Sullivan on October 9. Abernethy
asked the bookkeeper , Barbara Perlstein , about the $6 de-
duction. Perlstein said , "It's union dues ." Abernethy pro-
tested she had not signed an authorization for their deduc-
tion. Perlstein replied , "Well everybody had it taken out,"
and gave her a Local 4 card. Abernethy did not sign the
card . Gruenke and Sullivan also spoke with the bookkeep-
11 The single card was enttiled "Application and Checkoff Authorization
Blank" and carried the following legend
1, the undersigned , hereby apply for membership in the above Local
Union and I authorize it to represent me for the purpose of collective
bargaining , and I authorize and irrevocably direct my Employer to
deduct from my wages initiation fees, monthly dues , and assessments,
to become due to it as the periodic dues , initiation fees and assessments
uniformly required by said Local Union as a condition of acquiring or
maintaining membership , and in compliance with the Labor Manage-
ment Relations Act of 1947
There followed a paragraph on revocability, and blanks to be filled in for
pertinent employment information and employee signature
12 Cleary testified he signed a Local 4 membership card at the request of
the switchborad operator and on the urging of Shop Steward O'Toole short-
ly after he came to work He did not know what was written on the card but
described it as a blue and white card He also testified that he protested to
the bookeeper when dues were deducted from his pay that he had not
signed an authorization therefor No Local 4 authorization card signed by
Cleary was produced at the hearing and I presume that one was not in the
possession of either Respondent
er in October when the $6 dues were deducted . The first
deduction from Curry was in November . She spoke with
the bookkeeper , who gave no explanation but sent her to
see Shop Steward Evelyn O'Connor. Curry asked O'Con-
nor why dues were deducted from her pay when she had
given no authorization and had signed no card. O'Connor
told Curry, "You're automatically in the union after you
are here four weeks and Mr. Hagler deducts $6 from your
pay for the union ." Curry argued that this was not appro-
priate and that if the Union wanted to deduct money from
her pay she wanted to see a card from Local 4, and she
would sign for the dues deduction . After Cleary spoke with
Curry, he went to the bookkeeper and asked why the union
dues were being taken out of his pay. Perlstein informed
him that these were Hagler 's instructions . Gruenke, who
had already spoken with the bookkeeper, went to see Hag-
ler about the dues deduction the following month. Hagler
merely informed her it was for the Union. He did not say
that it was required under the contract.
Cleary, Abernethy, and Gruenke all signed the August
19 and September 6 documents seeking 9(e) action and
each signed union membership cards for Local 1115 in Au-
gust. The election on the UD petition, which was filed in
September , was scheduled for October 11.
Curry testified that, in the dining room before the elec-
tion , Hagler asked her what she thought of the Union. She
responded, "What about the union?" Hagler asked how
she was going to vote and stated, "Don 't you think Local 4
would be the right choice." Curry stated she did not think
it was right for him to even suggest how she should vote or
which was the better Union. Hagler walked away. Hagler
specifically denied that this conversation ever took place
and further asserted that there was no election in which a
choice was to be made between the two Unions. While I do
not view the nature of the election being conducted as ne-
gating the existence of the concept in the minds of the
participants that it was in substance a contest between Lo-
cal 4 and Local 1115, I am not convinced that the weight of
the evidence, even allowing for demeanor , establishes that
such interrogation took place. Accordingly, I do not find a
violation of the Act on the basis of this testimony.
Gruenke testified that, while the voting was in progress,
she entered a hallway outside the dining room and came
upon Hagler about 4 feet away talking to Wanda Sullivan
and an employee named Loretta. Hagler asked Wanda if
she had voted in favor and Wanda said yes Loretta was
crying because she mistakenly voted against Hagler. Hag-
ler denied this incident . Loretta did not testify, and Wanda
Sullivan who did testify was not asked and made no refer-
ence to this incident . Gruenke further testified that
later that day in the lobby she was standing 4 or 5 feet from
Judith Hagler, wife of Joseph Hagler, who was talking to
an employee named Steve , and Johnnie , the porter . Hagler
was also present . According to Gruenke, she heard Steve
ask Mrs. Hagler what would happen if he did not vote.
Steve said he did not want to vote because he did not want
to hurt either party. Mrs. Hagler replied, "A boss can make
it difficult." Both Mr. and Mrs. Hagler denied this inci-
dent. Here again , available participants in the alleged con-
versation were not brought in to testify. It seems curious
that the porter would ask Mrs. Hagler such a question
GLORIA' S MANOR HOME FOR ADULTS 1139
when the boss, Hagler himself, was standing there, and if
Mrs. Hagler gave the answer alleged, one wonders why the
employee did not turn to Hagler for a more specific an-
swer. I am not persuaded that the preponderance of the
evidence is on the side of the General Counsel's allega-
tions. Accordingly, I shall not base a finding of unlawful
conduct on Gruenke's testimony relating these two inci-
dents.13
Cleary testified that, about 2 hours before the election,
Hagler stated to him that if he liked his job he would know
how to vote. Cleary made no reply and Hagler walked
away. Hagler gave a general denial. I was impressed with
Cleary's demeanor as a witness and with the simplicity of
his account, and credit him as against Hagler's general de-
nial. I find that Respondent Employer thereby engaged in
unlawful interference, restraint, and coercion in violation
of Section 8(a)(1) of the Act.
In mid-November, Shop Steward O'Connor notified em-
ployees to attend a meeting of Local 4 in the dining room
of Gloria's Manor. Vincent Gulino introduced himself as
the new president of Local 4. A composite of the credited
testimony of employees indicates that at this meeting Cur-
ry was elected the new shop steward. Curry asked Gulino
why the $6 was taken from her pay when she had not
signed a checkoff authorization and had not seen a Local 4
agent before, nor had she received or signed any card. Gu-
lino stated he had no authorization cards with him but she
should not worry about it because "after you're working
four weeks you automatically are in the union regardless if
you sign a statement or not." Curry raised the question of
the amount of the initiation fee and Gulino stated it was
$35 but that he would waive it for present employees be-
cause this was a new company and they were starting from
scratch; new employees at Gloria's Manor from then on
would have to pay the $35.14 Gruenke asked what the $6
dues was for and Gulino stated it was for his representing
them. Abernethy questioned why $6 had been taken from
her pay without a checkoff authorization, and stated that if
the dues were going to be deducted she wanted a union
identification card. Gulino told her to forget about that
matter; that he had other things he wanted to talk about.
Gulino then referred to the employee activity on behalf
of Local 1115 and said he wanted employees to sign a
statement that they would have nothing further to do with
Local 1115. Employee benefits were discussed and employ-
ees asserted they wanted a better contract. Gulino stated
u In view of my determination herein, I find it unncessary to determine
Judith Hagler 's supervisory or agency status
14 Gulmo testified that at his meeting he assured employees that Local 4
would live up to the commitment Bob Gordon had made with them at the
time he was organizing Gloria's Manor Gulino testified he understood the
commitment had been made to the employees by Gordon in February,
March, or April 1974, that initiation fees would be waived for those em-
ployed when the contract was signed and would be deferred until the
contract's first anniversary date for all those hired after the contract's execu-
tion, so that no one would have to pay initiation fees until May 1975 In
view of the difficulty Gulino had in clearly stating the conditions of this
waiver/deferral commitment as he understood it, I view it as entirely likely
that the commitment by Gordon was as described above but that Gulino
stated it to the employees in November in a fashion which led them to
understand that the waiver applied to all those employed at that time I do
not view the difference significant, however, in the context of this case for
the reasons stated infra
that as long as employees were meeting with Local 1115 he
was in no position to bargain with Hagler for them. Em-
ployees indicated that they would sign such a statement if
Gulino would bargain with Hagler on their behalf "in good
faith." He told Curry to get a blank sheet of paper and call
him the next day at which time he would tell her what to
write on it. Curry stated she wanted the document on Lo-
cal 4 letterhead stating exactly what it was Gulino wanted
employees to sign and she would have it signed for him.
Curry also stated she wanted a copy of Local 4's contract
with Respondent Employer.
Curry was supplied with a copy of the Local 4 contract
with Respondent Employer about 2 weeks later and after
she looked it over Curry spoke with Hagler in his office.
She told Hagler she had received a copy of Local 4's con-
tract and that from what she had read "it was from the
year one" and was "made for 1918" whereas this was 1974.
Hagler told Curry "we can always get together; we can add
on to the old contract, or we can make up a new contract."
Curry stated she wished to ask her attorney about this.
Curry related to some of the employees the benefit provi-
sions contained in the contract, then contacted Local 1115.
A meeting was arranged for Morales to meet with employ-
ees at 8 :30 p.m. at Rogers Hotel Restaurant on November
26, and Curry notified the employees.
About 2 hours before the scheduled Local 1115 meeting
Hagler came into the kitchen and asked Cleary whether he
would like to go for a drink after work. Hagler mentioned
three nearby bars, including the one at the Rogers Hotel.
Cleary said he would go, but Hagler left Gloria's Manor
before Cleary finished work and Cleary went to the Local
1115 meeting. I do not find in this invitation a sufficient
basis for holding that Respondent Employer thereby gave
the impression of surveillance of the employee union activ-
ities, which I presume was the basis for presenting this evi-
dence.
At the Local 1115 meeting, Morales obtained employee
signatures on new Local 1115 authorization cards. Aber-
nethy, Cleary, Curry, and Gruenke each signed one. Curry
informed the group at the meeting concerning the benefit
provisions contained in Local 4's contract 15 and Morales
told employees what the Local 1115 contract benefits were.
At that meeting, O'Toole, the discharged former Local 4
shop steward who had not previously known the provisions
of Local 4's contract, urged employees to try to get better
benefits from the Employer.
The day following the Local 1115 meeting Hagler spoke
to Curry and told her he had heard she had arranged the
Local 1115 meeting; that she could call as many meetings
with Local 1115 as she wanted to but it would be to no
avail and would be of no benefit to her coworkers; and
that the Local 1115 activity did not mean a thing because
Local 4 had a signed contract for 3 years and there was
nothing the employees could do about it The General
Counsel failed to file a brief and did not state the theory of
what violation this evidence was produced to prove. I do
not find a sufficient suggestion of surveillance to hold
Hagler's statements unlawful and his statements, which are
15
Curry testified that, although she had read the union-security provi-
sions of the contract, she did not mention them to employees but confined
her discussion to the benefits provided
1140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the nature of information and opinion, do not otherwise
exceed lawful bounds.
Shortly after the November meeting of Local 1115 at the
Rogers Hotel, Gruenke asked Hagler whether there was an
employee medical plan which would cover expenses for her
son who was sick. Although her inquiry was for insurance
coverage, Hagler offered her a loan of money to pay her
expenses. Gruenke refused. Hagler then commented about
her going to bars. Gruenke responded that she did not go
to bars. Hagler then told her that a doctor connected with
the Home would give her medical services. Here again, in
the absence of a brief, I must assume that the General
Counsel would have me infer that Hagler's reference to
Gruenke going to bars related to the recent Local 1115
meeting at the Rogers Hotel and that Hagler offered medi-
cal assistance to Gruenke only after her denial that she
went to bars implied that she denied being at the Local
1115 meeting. I regard this as much too tenuous a thread to
support a finding of unlawful conduct
Sometime around the first week of December, Local 4
supplied Curry with a document for employees to sign
which stated, inter aka, that they wanted Local 1115 to stop
harassing them. Curry obtained the signatures of employ-
ees on such document on various dates between December
7 and 13, 1974, telling employees, as she did so, that as
soon as all had signed Local 4 was going to bargain with
Hagler for better benefits for them When Gulino was giv-
en the completed document in mid-December, he told Cur-
ry and Abernethy he was going to bargain for them. Curry
told Gulino what benefits the employees wanted added
and Gulino wrote them down.
Curry testified that one Sunday in December, as she was
leaving work, Joseph Weisblum, a general partner in the
Home who is not active in its operations and is present
only about once a week, called her into the bookkeeper's
office and asked her if she liked working for Gloria's Man-
or. When Curry said yes, Weisblum stated that if she con-
tinued on with seeking help from Local 1115 she would no
longer be employed at Gloria's. Weisblum testified that it
was possible he had a conversation with Curry and asked
how she liked working there, but denied that he ever spoke
to her or any employee in any respect regarding either
Union. I note that other evidence establishes that, for per-
sonal reasons, Curry was absent from work between De-
cember 23, 1974, and the first of 1975, and that from the
first weeks of December Curry was active on behalf of
Local 4 rather than Local 1115. I credit Weisblum's denial
and find no unlawful conduct personally committed by Jo-
seph Weisblum.
In early January 1975, Gulino came to Gloria's Manor
and held a short meeting with those employees present.
Abernethy asked Gulino for her union identification card,
but Gulino stated he had none with him. Gulino told the
employees that he was going into the office to bargain for
them with Hagler. He invited Abernethy and Curry to ac-
company him. Abernethy declined but Curry joined him.
In addition to Hagler and Gulino, Curry testified that an
unidentified individual from the "International" was also
present at the meeting in Hagler's office. Curry stated what
additional benefits the employees wanted in their con-
tract.lb Hagler stated he would call his attorney and let
them know within 5 days whether they would have a new
contract or add to the old contract, but he would do his
best to get a better contract for his employees. Curry never
heard anything further about increasing the contract bene-
fits so she contacted Morales of Local 1115 and consulted
with him as to whether there were difficulties in amending
a contract if Hagler could give employees the benefits she
had requested. Morales advised her that it could be done.
Curry arranged another meeting of the employees with Lo-
cal 1115 at the Rogers Hotel on January 25, 1975. Most of
the discussion at this meeting related to the National Labor
Relations Board petitions.l" New cards were signed by em-
ployees for Local 1115, among them the five individuals
involved herein.
When Abernethy signed for her first February pay, the
bookkeeper told her, "Here is the card you have been ask-
ing for" and gave her a Local 4 membership/checkoff
card, stating, "Sign it and return it to me as soon as possi-
ble." Abernethy had been asking the bookkeeper for a Lo-
cal 4 identification card to show that she was a member.
When Abernethy saw what the card was, she was already
paying dues. Sullivan was also given a Local 4 member-
ship/checkoff card to sign at this time by the bookkeeper,
but did not sign it.
Hagler testified that Barbara Perlstem, his bookkeeper,
works in an office adjacent to his where there is an open
partition He instructed the bookkeeper that there was a
collective-bargaining agreement and that the Union would
require employees to pay dues and initiation fees pursuant
to the contract. There was at least one occasion when the
bookkeeper consulted him regarding union dues of an em-
ployee and he told her to get in touch with the Union. I
find that in handling employee's pay inquiries and in soli-
citing the dual-purpose membership/checkoff cards on be-
half of Local 4 bookkeeper Perlstein was acting as agent of
Respondent Employer and that said Respondent is respon-
sible for her actions in these respects
Hagler testified that a Local 4 representative checked
with the bookkeeper and found there were a number of
employees who had not signed checkoff cards. Gulino tes-
tified he learned that dues were being deducted but not
forwarded and there were no checkoff cards for those em-
ployees. He informed Respondent Employer that without
checkoff cards it was illegal for Gloria's Manor to take the
dues from the employees' pay, and advised the Company
to return the money. He then gave the employees until the
end of February to pay up their dues.18 According to Cur-
16 Curry enumerated the benefits which employees were requesting as 2
weeks' vacation with pay after I year, $3 37 per hour for all employees, a
medical and health plan, 10 paid holidays a year, and sick pay with pay
bonus for employees who used no sick leave during the year
17 In mid-January employees learned that the October UD election was
inconclusive Also, at that time Local 1115's appeal from the dismissal of its
RC petition was still pending
is
Gulino testified he was catching up on union records in the latter part
of January when it came to his attention that dues were not being paid by
employees at Gloria's Manor and that he did not have authorization cards
for those employees He went to the Home on a date not specified and
started giving out cards and telling employees to bring the dues up to date
Assertedly, he told some of the employees that if they did not bring the dues
up to date by February 10 they were going to be terminated under the
contract Gulino did not identify who these employees were He stated he
GLORIA'S MANOR HOME FOR ADULTS 1141
ry, at the beginning of the week of February 24, 1975, Guli-
no came into the dining room at Gloria's Manor with a
paper he asked her to sign . Gulino did not say what the
paper was. Curry did not read the paper. Gulino said he
had been busy. He told Curry that if she did not sign the
paper she was no longer the shop steward, her union dues
would be returned to her, and she would be fired.'9
I do not credit Gulino's testimony that he gave any of
the employees notice to bring their dues up to date. The
many internal inconsistencies in his testimony as well as
with other record evidence, and his general demeanor con-
vinces me that his testimony is not reliable. It is clear that
Gulino was made aware of the fact that dues were being
deducted from the pay of employees who had not signed
checkoff cards in the November meeting with employees.
Other evidence suggests that the parties learned in mid-
January that Local 4 had not lost the UD election, and
sometime before February 24 Gulino spoke with the book-
keeper and ascertained that a number of employees had
not yet signed the dual-purpose membership/checkoff card
for Local 4. The date thereof does not appear However,
when she distributed the checks in early February, the
bookkeeper attempted to obtain the needed checkoff signa-
tures, and when she was unsuccessful in obtaining signed
cards Gulino came to the Home and sought Curry's signa-
ture on a document, the identity and purpose of which is
undisclosed, but which inferentially would permit him le-
gally to accept the dues which had been withheld from
employees. Thus, Gulino threatened to return Curry's dues
and have her discharged if she did not sign the document
which he had with him. When Curry refused and instead
agressively censured him for not carrying out negotiations
for contract amendments, Gulino advised Hagler to refund
the dues of employees who had not signed union checkoff
cards.
On February 24, Hagler refunded to certain employees
moneys checked off for union dues for which they had not
signed checkoff authorizations.20 Hagler stated that "ba-
sically" he told each employee his bookkeeper was in error
had no list with him so he spoke to all employees who were working that
day Later Gulino changed his testimony to set the deadline date which he
gave as February 28 Gulino also testified that he told the same thing to the
five dischargees and to LaPaz, that none of them asked how much they
owed , and that Sullivan said she had been paying and he told her the Union
had not been receiving it so she would have to make good A couple of the
employees stated they were going to talk to Curry
i Gulino testified that when he had seen all of the employees working
that day he went into the dining room and found the five dischargees
around Curry Gulino approached Curry and she said, "Get away from
me-where have you been for five weeks," referring to the failure to negoti-
ate for the contract rider Gulino replied , "I'm not here for that " Curry
said, "Then get out of here, I don't want no parts of you " The employees
with her (Abernethy, Cleary, Gruenke, Sullivan, and Curry) all refused to
accept cards Gulino told Curry, "If you don't bring dues up to date by the
end of February you will be discharged " Curry said she was not going to
pa' dues because she did not receive the benefits promised
° Checks were $30 to Abernethy, $24 to Curry, $30 to Sullivan, $24 to
Gruenke , and $30 to Cleary It is not clear that these were the only refunds
made except for LaPaz On the other hand , it is not clear that there were
others who had not signed checkoff cards for whom dues were deducted
The evidence does show that there were dues deducted from the pay of
employees for whom no union " ledger card" showing receipt of such dues
was submitted by Respondent Union Nor was a "ledger card " presented
for any of the dischargees
when she removed $6 a month from their pay without au-
thorization and, therefore, he was returning the moneys
deducted. Abernethy testified that Hagler merely stated
when he gave her the check that it was a refund of union
dues, and asked her to take a similar check to Joan
Gruenke who was not working that day. Hagler did not tell
her why the money was being returned and she did not ask.
"Union dues" was written on the check. Curry testified
that Hagler handed her the check and stated he was told by
the Union to give her a check for her union dues. She
thanked him and left the office. Cleary recalled Hagler
gave him the check marked union dues and stated it was a
refund; the Union did not want him in the Union any-
more. He denied that Hagler told him the dues were being
returned because they had been improperly deducted, and
asserted that there was no conversation regarding how he
was to pay the dues after he received the refund.
On February 26, Hagler wrote Local 4 the following let-
ter:
As per your instruction I have returned the union
dues to the employees that you have indicated to me
are not union members, because they have not signed
union authorization cards.
On Friday, February 28, 1975, Henry Fineguerra, vice
president of Local 4, was in the lobby of Gloria's Manor.
The switchboard operator summoned the employees in-
volved by name to come to the desk in the lobby. Aber-
nethy testified that Fineguerra said he was from Local 4
and informed her that she owed $71. Abernethy asked
what it was for. Fmeguerra replied, "Union dues and initi-
ation fees." Abernethy asked Fineguerra whether he was
carrying any identification to prove he was from Local 4.
Fineguerra stated he had none. Abernethy asked what she
would get for $71 and Fineguerra replied she would get
"job security." Abernethy asked him what he would get for
her money and Fineguerra did not answer. Abernethy re-
turned to her work. Abernethy further testified that Fine-
guerra did not say how much of this was for dues and how
much was for initiation fees; he did not identify the period
covered; he did not tell her to whom to make payments; he
did not discuss the method of payment; and he did not say
when she should pay the $71.
Cleary was told by Fineguerra when he responded to the
call that he owed $71 in initiation fees and dues which he
would have to pay or he would be discharged. Cleary stat-
ed he had paid his union dues already. Fineguerra said he
never received them Fineguerra had a long paper with
writing on it which he stated Cleary would have to sign.
Cleary refused to do so. At no time did a Local 4 represen-
tative tell Cleary when dues and fees were to be paid or
how
Curry went to the lobby on a report from Cleary that he
had just been fired by Fineguerra who had demanded $71.
When she entered the lobby, Fineguerra called Curry over
and told her she owed $65 and "if she did not pay it she
was fired " Curry asked what the $65 was for, and Fine-
guerra said it was for union initiation fees and dues. Curry
replied that she did not owe the Union anything, she had
been paying her union dues and was a member in good
1142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
standing.21 In Curry's presence, Fineguerra demanded of
another employee, LaPaz, $71. LaPaz also protested she
did not have the money and did not owe it. Fineguerra
asked LaPaz to sign a paper which he had.
Fineguerra testified he spoke to the three or four em-
ployees and that he did mention to each a sum which was
the amount of dues to date plus initiation fees.22 He also
testified that he spoke on Monday,23 with those whose
names are written in on the discharge demand letter I
credit the testimony of the various employees, and find
that Fineguerra demanded the full amount and/or the sig-
natures on the mysterious document, then and there, with-
out further explanation.
While working in the kitchen on March 3, the cook
asked Cleary whether he would "sign for Local 4 if it cost
him his job." Cleary said he would decide that when the
time came. The cook told Cleary "the time is here," he was
going to be called into Hagler's office.24 About 1-1/2 hours
later Cleary was called into the office. Fineguerra was there
and told Cleary he owed dues and initiation fees to the
Union and to pay. Cleary insisted he had paid his dues.
Fineguerra said he never received it. Cleary told Fineguer-
ra to see Hagler. Fineguerra told Cleary to sign the paper
he had or be fired. Cleary turned to Hagler who told him to
sign for the Union and to pay the dues, and he would not
be fired. Cleary left the office and went to find Curry who
accompanied him back to the office where they found
Abernethy, Gruenke, and LaPaz
Hagler told the group he was sorry he had to release
them because they were good workers, but Local 4 had
requested their immediate dismissal on the grounds they
had not paid their union dues. Upon their request, Hagler
showed Abernethy and Curry the letter from Local 4 which
he was holding.2 Abernethy again asked Fineguerra for
21
Curry testified she then spoke with Hagler and asked whether the
Union could fire her Hagler told her the Union could fire her for nonpay-
ment of dues Curry asked whether she should go back to work Hagler told
her to do so and he would check with his attorney on this matter Hagler did
not testify concerning a conversation with Curry but did testify that he
spoke with Curry, Cleary, Gruenke and Sullivan in the dining room on
February 28, and expressed his desire to keep them because he was pleased
with their work and he did not want to discharge them He asked them to
straighten out their business with the Union if there was any way they
could He also testified he told the same thing to Abernethy on Sunday,
March 2 The dischargees were not called on rebuttal to deny this testimo-
ny Other evidence indicates that Hagler had no request for their discharge
on February 28 The oral demand was made to Mrs Hagler after he had left
and Mrs Hagler had insisted that the Union put its demand in writing It
would appear that Hagler may be confusing part of the events of March 3
with those of February 28
22 At first Fineguerra set the date as February 18 but in later testimony he
changed this to February 28 He testified that he merely asked the employ-
ees what their intentions were Although Fineguerra denied demanding a
flat sum then and there , he admitted mentioning a total amount and failed
to testify as to precisely what he said about the amount stated Fineguerra
claims he was not asking for the money at that time but told them to sign
the dues-checkoff authorization This is inconsistent with Gulmo's assertion
that February 28 had been given employees as the deadline date on which
they were to have brought their dues up to date, and with Fineguerra's
presentation of the oral demand for their discharges later that day
23 Fineguerra testified he went back March 3 with the letter because Mrs
Hagler insisted the discharge request be in writing He also testified he did
not know who he spoke with on February 28, but he did recall that he spoke
with Cleary separately and the others all at once, and together
24 Hagler testified that the cook is a supervisor
identification to prove he was from Local 4, and Fineguer-
ra stated he had none. She asked him at least to produce a
Local 4 contract that she would accept as identification.
Fineguerra said he was not in possession of one Abernethy
asked him if the Local 4 contract that they were negotiat-
ing contained a closed-shop provision, and if so she wanted
this read from the contract for her before she was dis-
missed from her position. Hagler volunteered to get the
Company's copy of the contract from the safe. Fineguerra
read the two paragraphs involved from the contract which
he stated was not a "closed shop" provision.
One of the other employees present reminded Fineguer-
ra that dues had been deducted from their salary for 5
previous months. Fineguerra stated he had never received
them. Curry called to Hagler's attention the fact that he
had deducted their monthly dues. Hagler was asked what
he had done with the moneys he had deducted Hagler
stated that on many occasions he had offered the money to
Local 4, but they had refused to accept it. One of the em-
ployees demanded to know why they had not been in-
formed previously because they had understood they were
members of Local 4. Hagler told them he was not discharg-
ing them, the Union was. After their discharges Hagler told
the employees to complete the day's work.26
Cleary, who worked until 8:30 that evening, testified that
when he was leaving Mr. and Mrs. Weisblum were in the
office with Mr. and Mrs Hagler Hagler again expressed
his regrets and told Cleary, "You should have signed that
paper." 27
On March 5, 1975, Wanda Sullivan, who was not present
on February 28 or March 3, 1975, was called to the desk
where Fineguerra was waiting. He said, "You owe me $71
for the union; sign this paper." Sullivan said she did not
have $71; that she did not owe him any money; and that
she was not going to sign any paper. At this point Hagler
was walking toward them. Fineguerra said to Hagler, "I
want you to remove this woman from the job right now."
Hagler told Sullivan to go and punch out. As she was
about to punch out, Hagler asked her to finish the day
through dinner and to stop by the office when she finished.
She did so and he had her check ready for her. Sullivan
asked Hagler what was going on and he said, "I don't
know, that's the union."
25 The names of Cleary, Curry, and LaPaz were typed thereon The names
of Gruenke, Abernethy, and Sullivan had been added in ink that morning
26 The employees' version of what occurred in the office at the time of
discharge is not significantly contradicted
Hagler testified that on March 5 he told the five employees he had re-
ceived a letter from the Union demanding their discharge for nonpayment
of dues and he was sure that following this letter a union representative
would appear on the scene to ask for their discharge and he would have no
recourse based on his advice from his attorney but to discharge them Em-
ployees said they had paid the money and he said this was done in error and
he had returned the money to them The error in date is obvious Further,
the evidence would seem to indicate that the oral demand for discharge was
made on February 28, and the written letter brought by Fineguerra on
March 3 , at which time additional names were inserted and four of the five
were discharged It would appear that Hagle. has confused not only the
dates but the events
27 Cleary also testified that while he was still working, Weisblum came
into the kitchen and offered to pay his initiation fee for him Gruenke
testified that Hagler did offer to loan her the initiation fees and dues if it
was a hardship for her , but she refused Both Weisblum and Hagler denied
offering to pay Local 4 any money on behalf of employees without repay-
ment I find that any such offers were as loans only
GLORIA'S MANOR HOME FOR ADULTS
Hagler testified he had no reason to believe that Local 4
had not made membership available to the five named em-
ployees on the same basis it had been made available gen-
erally, and no basis for believing employees had been de-
nied membership for any reason other than nonpayment of
dues and initiation fees.
G. Analysis and Conclusions
It is alleged that by the various acts of interference, re-
straint, and coercion, advanced as independent violations
of Section 8(a)(1), Respondent rendered further assistance
and support to Local 4 in violation of Section 8(a)(2) of the
Act. I have found only Hagler's statement to Cleary, that if
he liked his job he would know how to vote, unlawful.
Therefore, I do not find a course of 8(a)(l) conduct which
considered together constituted unlawful assistance.28
However, the unauthorized deduction of dues is a clear
violation of Section 8(a)(2) and (1) of the Act,29 for which
Respondent Employer is accountable. Moreover, the
Board has repeatedly held that dues-checkoff authoriza-
tions must be made "voluntarily," and that an employee
has a "right under Section 7 of the Act to refuse to sign
checkoff authorization cards." Any conduct, express or im-
plied, which coerces an employee in his attempt to exercise
this right clearly violates those Section 7 rights.30 The
Board has also held that in circumstances where the em-
ployees were given no opportunity to comply with the
union-security clause and join the Union unless they
signed the card which authorized the deduction of dues an
employee had no alternative and no choice but to author-
ize the checkoff or lose his job, and hence the use of a
dual-purpose checkoff card was coercive. The essence of
this finding is that each employee has a right to sign or not
to sign a checkoff authorization and he must be given the
opportunity to decide this for himself. Therefore, where
only the dual-purpose card is available to employees who
wish to comply with their obligations under a union-securi-
ty clause, it deprives employees of their right to select the
method by which they will pay their periodic dues to the
Union.31 Such interference is unlawful whether committed
by an employer or a union.32 I need not determine whether
28 In this respect I have not considered the unlawful discharge of O'Toole
and the violations of Sec 8(a)(1) which preceded the discharge, the former
because it was not encompassed by the allegation in par 23 of the consoli-
dated complaint, and the latter, even if encompassed thereby, because such
conduct was prior to the statutory 10(b) period with respect to this allega-
tion
29 See Howard Creations, The, 212 NLRB 179 (1974), Hope Industries,
Inc, 198 NLRB 853 (1972) There is no specific showing that Respondent
Union was a party to such unauthorized deductions or ever received the
moneys withheld Although credited testimony establishes the Union had
reason to believe this was being done from the complaints made by employ-
ees at the November meeting, I do not hold Respondent Union accountable
for this violation See Sea-Land Service, Inc, 189 NLRB 13, 17 (1971)
30
International Union of Electrical, Radio and Machine Workers, Local
601, AFL-CIO (Westinghouse Electric Corporation), 180 NLRB 1062 (1970)
Also see Communications Workers of America, Local 6306, AFL-CIO, and
Communications Workers of America, AFL-CIO (Southwestern Bell Tele-
phone Company), 198 NLRB 1098 (1972)
Si International Union of District 50, and Local Union No 14029, Interna-
tional Union of District 50, United Mine Workers of America (Ruberoid Com-
pany, a Division of General Aniline and Film Corporation), 173 NLRB 87
(1968)
1143
or not Hagler told employees that the dues deduction was
an error on the part of the bookkeeper, as neither such a
statement nor the refund of dues without authorization di-
minishes the effect of the interference with employees' Sec-
tion 7 rights occasioned by such conduct. Therefore, I find
that Respondent Employer rendered further unlawful as-
sistance to Local 4 when its bookkeeper solicited employee
signatures on Local 4's dual-purpose cards; when the chef
warned Cleary he was about to face a choice between his
job and signing a checkoff card for Local 4, and when
Hagler told Cleary to sign the paper for the Union and to
pay, and he would not be fired Respondent, by each of
these acts, violated Section 8(a)(2) and (1) of the Act.33
With respect to the alleged violations of Section
8(b)(1)(A) and 8(b)(2), the Board and courts have held that
a union seeking to enforce a union-security provision
against an employee has a fiduciary duty to deal fairly with
the employee affected. At a minimum this duty requires
that the union inform the employee of his obligations in
order that the employee may take whatever action is neces-
sary to protect his fob tenure.34 Further, where the protec-
tion of an individual employee's right to continued em-
ployment is to be balanced against the statutorily restricted
rights of the union to enforce a union-security agreement
requiring membership as a condition of employment, a
union must show that it had dealt fairly with the employee
and given him clear notice of what is required of him. Ab-
sent such a demonstration, the individual's right must be
held paramount and protected.35 Under well-established
decisional principles, a union's fiduciary duty to advise em-
ployees regarding their contractually specified obligation
requires positive action, without regard to an employer's
concurrent obligation to provide such notice,36 or any in-
formation the employee may have been provided through
fellow employees. 7 An employee is not presumed to be on
notice as to the extent of his obligations to the union.38
Evaluating the evidence within these guidelines, I find
that Respondent Union has not come forward with any
evidence that it informed employees of their obligations
under the contract.39 Indeed, it did not even inform em-
ployees that a union-security agreement existed under
32 Cf McDowell Mfg Co, Division of Alco Standard Corp, 198 NLRB
1229, fn 1 (1972)
33 Cf Luke Construction Company, Inc, 211 NLRB 602 (1974)
34 See Hotel, Motel and Club Employees' Union, Local 568, AFL-CIO
(Philadelphia Sheraton Corporation), 136 NLRB 888 (1962), enfd 320 F 2d
254, 258 (C A 3, 1963), Rocket and Guided Missile Lodge 946, International
Association of Machinists and Aerospace Workers, AFL-CIO (Aerojet-General
Corporation), 186 NLRB 561 (1970), International Association of Bridge,
Structural and Reinforced Iron Workers Union, Local 378, AFL-CIO (Judson
Steel Corporation), 192 NLRB 1074-75 (1971), and cases cited therein
35 Local 545, international Union of Operating Engineers, AFL-CIO (Jo-
seph Saraceno & Sons, Inc), 161 NLRB 1114, 1121 (1966)
36 Granite City Steel Company, 169 NLRB 1009, 1011 (1968), General
Truck Drivers, Chauffeurs, Warehousemen and Helpers Local 270, a/w Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of
America, Ind (Bulk Transport, Inc,), 186 NLRB 299, 301 (1970)
37 See Judson Steel Corp, supra
38
Conductron Corporation, a subsidiary of McDonnell Douglas Corporation,
183 NLRB 419, 425 (1970), Bulk Transport, Inc, supra
39 Even were I to credit the testimony of Gulmo, which I do not, the
actions he claims he took were clearly by way of forcing employees to sign
the checkoff cards and not to inform them of their contract obligations
Fineguerra's demand for a stated amount of money for "dues and initiation
Continued
1144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which they were required to pay dues and initiation fees
under penalty of loss of their jobs. While a copy of the
contract was supplied to Union Steward Curry upon her
demand and as a result of this she was the first employee
who had any information concerning any contract bene-
fits, Curry credibly testified that she concentrated on the
provisions covering benefits and did not advise employees
of the existence of the union-security provisions. Thus, it
was not until they were actually being discharged that the
employees were. informed of the existence of the union-
security provision, and then only because one of their
group demanded to know whether the Union had a "closed
shop," and to have the contract read to her. Even then, the
provision was not explained. Instead the Local 4 represen-
tative merely asserted it was not a "closed shop" contract,
an answer which could be very misleading to one not so-
phisticated in labor law.
Nor do I find that the Union's obligation to Curry, as an
employee, was met when it supplied her with a copy of the
agreement. None of the employees were ever informed how
and when they would be required to pay dues or how they
could become members other than by signing the dual-
purpose membership/ checkoff card 40 The use of that dual-
purpose card, itself, without providing employees an alter-
native to checkoff, is unlawful. I find that, by requiring
employees to sign these dual-purpose cards and by also
soliciting their signatures on an unidentified document un-
der threat of discharge, Respondent Union established re-
quirements and made demands other than tender of dues
and fees as a condition of membership and thereby violat-
ed Section 8(b)(1)(A) of the Act. Further, having failed in
its fiduciary obligation to employees, I find that Respon-
dent Union's request for the discharges under its union-
security agreement was in violation of Section 8(b)(1)(A)
and (b)(2) of the Act.
Additionally, the law is clear that a union may not de-
mand discharge under a union-security agreement for non-
payment of dues and initiation fees not uniformly required
as a condition of employment. The record establishes that
payment of initiation fees were deferred for all employees
until May 1, 1975, and that employees who had signed the
dual-purpose cards had no deductions made for payments
toward their initiation fees until June 18, 1975.41 It is also
clear that Respondent Union's demand for a stated gross
sum identified only as "initiation fees and dues" was a
demand for initiation fees as well as for the refunded
dues,42 and did not qualify as that which was uniformly
required as a condition of employment. Thus, Respondent
Union not only demanded sums of money not yet due-it
also discriminated against employees who refused to sign
the dual-purpose cards as against those who had signed
such checkoff cards. By this conduct, I find that Respon-
dent Union in demanding the discharge of the named em-
ployees violated Section 8(b)(2) and (b)(1)(A) of the Act.
As previously noted Respondent Employer asserts that it
had no reason to believe there were irregularities in the
treatment of the employees for whom discharges were de-
manded under the union-security agreement I find to the
contrary. Not only had Respondent been a party to the
unauthorizized deduction of dues and the subsequent re-
fund thereof, it was a party to the coercive efforts to obtain
employee signatures on the dual-purpose Local 4 authori-
zation cards, is accountable for knowledge of its own rec-
ords which revealed that initiation fees had not been de-
ducted for any of its employees who had signed the
dual-purpose checkoff cards, and Hagler was present when
Fineguerra demanded the full sum plus Cleary's signature
on the mysterious document as the alternative to discharge,
and himself told Cleary if he paid and signed the document
he would not be fired. These circumstances were more than
adequate to put Respondent Employer on notice that the
Respondent Union's discharge demand was not based
solely upon nonpayment of dues and fees uniformly re-
quired as a condition of employment. By acceding to that
demand, Respondent Employer violated Section 8(a)(3)
and (1) of the Act 43
The complaint alleges that Respondent Union and Re-
spondent Employer further violated Section 8(b)(1)(A) and
(2) and Section 8(a)(3) and (1), respectively, by causing the
discharge of, and by discharging, discrimmatees because
said employees joined and assisted Local 1115, and en-
gaged in other concerted activity While the refusal of these
employees to sign the checkoff cards appears to have been
a part of their union activity on behalf of Local 1115, I do
not find in the record persuasive evidence that their rival
union activity was itself the basis for their selection for
discharge. The record of those who had similarly supported
the Local 1115 activity, but who apparently had signed
Local 4 checkoff cards and remained employed, would in-
dicate that reprisal for such activity was not a motivating
factor. Accordingly, I shall not find a separate violation on
the part of either Respondent based on these allegations.
On the basis of the foregoing and the entire record, I
make the following:
fees" is not an adequate fulfillment of the obligation to fully inform employ-
ees
40 Although the contract was executed on May I, 1974, Local 4's own
"ledger cards" reveal that no moneys from any of Respondent Employer's
employees were received before November 1974 This it credited to October
dues although Respondent Employer began payroll deduction of dues for
all unit employees on September 4, 1974 Further, there was the existing
waiver and deferral of initiation fees None of this information would have
been revealed to Curry by a mere reading of the contract provision
41 The Company's payroll records and Local 4' s ledger cards reveal that
deductions of initiation fees began for the pay period of June 18, 1975, and
were posted by the Union on June 19, 1975, in amounts of $1 each, with the
exception of one new employee who on that date paid the full $35
42 A question of whether Local 4 was even entitled to demand the refund-
ed dues in the circumstances of this case is suggested by decisional prece-
CONCLUSIONS OF LAW
1. Jo-Jo Management Corp., d/b/a Gloria's Manor
Home for Adults, is an employer engaged in commerce,
and in operations affecting commerce, within the meaning
of Section 2(2), (6), and (7) of the Act.
2. Medical & Health Employees Union, Local 4, Office
& Professional Employees International Union, AFL-CIO,
dent hereinabove cited However, in the absence of briefs and a specific
allegation to that effect , I find it unnecessary to resolve that matter
4 Cf Allied Maintenance Company, 196 NLRB 566, 571 (1972), and cases
cited therein
GLORIA'S MANOR HOME FOR ADULTS 1145
and Local 1115, Joint Board, Nursing Home & Hospital
Employees Division, are labor organizations within the
meaning of Section 2(5) of the Act.
3. By engaging in interrogation of Donald O'Toole con-
cerning employees' activities on behalf of Local 1115 and
their reasons therefor; by giving the impression that the
union activities of employees were under surveillance; by
threatening reprisals for activities on behalf of Local 1115
in warning that such activities would not be to O'Toole's
best interest and that Respondent could see to it that
O'Toole was fired because of his Local 1115 activities; and
by telling William Cleary just before a Board election that
if he liked his job he would know how to vote, and by each
of such acts, the Respondent Employer engaged in interfer-
ence, restraint, and coercion in violation of Section 8(a)(1)
of the Act.
4. By discharging employee Donald O'Toole on Septem-
ber 6, 1974, because of his activities on behalf of Local
1115, and because he participated on September 10, 1974,
in filing the petition with the National Labor Relations
Board to rescind the authority of Respondent Employer
and Local 4 to maintain their union-shop agreement, and
by thereafter failing and refusing to reinstate him to his
former or substantially equivalent position of employment,
Respondent Employer discriminated in regard to tenure,
terms, and conditions of employment, thereby encouraging
membership in one labor organization and discouraging
membership in and activities on behalf of another labor
organization, in violation of Section 8(a)(3) and (1) of the
Act; and by discriminating against an employee for having
filed a petition under the Act, Respondent Employer there-
by engaged in unfair labor practices within the meaning of
Section 8(a)(4) of the Act.
5. By withdrawing and withholding union dues from the
pay of its employees without appropriate signed authoriza-
tions, and by soliciting employees' signatures on dual-pur-
pose membership/checkoff cards on behalf of Local 4, Re-
spondent Employer rendered unlawful assistance and
support to Local 4 and, thereby, engaged in unfair labor
practices within the meaning of Section 8(a)(2) and (1) of
the Act.
6. By threatening employees with discharge if they did
not sign an unidentified document, and/or the dual-pur-
pose membership/checkoff cards, and by demanding on
February 28 and March 3 and 5, 1975, that Respondent
Employer discharge employees Mary Abernethy, William
Cleary, Katheryn Curry, Joan Gruenke, and Wanda Sulli-
van, because said employees would not sign such cards and
documents and because said employees did not tender
dues and initiation fees required as a condition of employ-
ment under the terms of the collective-bargaining agree-
ment, notwithstanding that Respondent Union had failed
in its fiduciary relationship to said employees by failing to
advise employees of their contractual obligation, failing to
afford them a reasonable opportunity to meet their con-
tractual obligation, and had not made membership avail-
able to them on the same terms and conditions generally
applicable to other employees of Respondent Employer
who did authorize and have dues checked off from their
pay, Respondent Union restrained and coerced employees
in the exercise of the rights guaranteed in Section 7 of the
Act and thereby engaged in unfair labor practices within
the meaning of Section 8(b)(1)(A) of the Act.
7. By causing, and attempting to cause, the Respondent
Employer to discharge said employees in violation of Sec-
tion 8(a)(3) of the Act, Respondent Union thereby engaged
in unfair labor practices within the meaning of Section
8(b)(2) of the Act.
8. By discharging at the request of Respondent Union,
and thereafter failing and refusing to reinstate, its employ-
ees Mary Abernethy, William Cleary, Katheryn Curry, and
Joan Gruenke on March 3, 1975, and Wanda Sullivan on
March 5, 1975, pursuant to the demand made by Respon-
dent Union because said employees had failed to meet
their contractual obligations to tender the periodic dues
and fees, notwithstanding that Respondent Employer had,
or upon inquiry would have had, reasonable grounds for
believing that Respondent Union did not make compliance
with that obligation available on the same terms and con-
ditions generally applicable to other employees, Respon-
dent Employer discriminated, and is discriminating, in re-
gard to the tenure and terms and conditions of
employment of its employees, in violation of Section
8(a)(3) and (1) of the Act.
9. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent Employer violated Sec-
tion 8(a)(1), (2), (3), and (4) of the Act and Respondent
Union violated Section 8(b)(1)(A) and 8(b)(2) of the Act, I
shall recommend that they cease and desist therefrom and
take certain affirmative action designed to effectuate the
policies of the Act. Having found that Respondent Em-
ployer unlawfully discharged Donald O'Toole on Septem-
ber 16, 1974, because of his union activity and because he
filed a petition with the Board, and noting that on and
after December 22, 1974, O'Toole no longer desired to re-
turn to his employment with Respondent Employer, I shall
recommend that Respondent Employer be ordered to
make O'Toole whole for any loss of earnings he may have
suffered as a result of his unlawful discharge.
As I have found that the Respondent Union unlawfully
caused the Respondent Employer to unlawfully discharge
Mary Abernethy, William Cleary, Katheryn Curry, and
Joan Gruenke on March 3, 1975, and Wanda Sullivan on
March 5, 1975, within the meaning of Section 8(a)(3) and
(1) of the Act, I shall recommend that Respondent Em-
ployer, unless it has already done so, offer said employees
immediate and full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equivalent posi-
tions without prejudice to their seniority or other rights and
privileges and, jointly and severally with Respondent
Union, make them whole for any loss of earnings they may
have suffered as a result of their unlawful discharges with
interest thereon. Backpay, in each case, shall be computed
on a quarterly basis and in a manner consistent with the
Board's policy set forth in F. W Woolworth Company, 90
NLRB 289 (1950), and Isis Plumbing & Heating Co., 138
NLRB 716 (1962). The backpay liability of the Respondent
1146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union shall terminate 5 days after it notifies the Respon-
dent Employer and the named dischargees that it has no
objection to their reinstatement, as provided above. With
regard to Respondent Employer, its backpay liability, for
the five employees discharged under the union-security
agreement, shall terminate on the date each is offered rein-
statement.44
As I have found that Respondent Employer unlawfully
assisted Local 4 by checking off union dues without benefit
of a signed checkoff authorization from certain employees
and by soliciting employee signatures on Local 4's dual-
purpose membership/checkoff authorization cards, I shall
recommend that it be ordered to cease and desist from
rendering such assistance and support to Respondent
Union. Having found that Respondent Union required em-
ployees to sign the dual-purpose cards under threat of dis-
charge, I shall recommend that Respondent Union be or-
dered to cease using such dual-purpose cards unless it is
made clear to employees that they have an alternative
means of applying for membership without authorizing a
checkoff. In the absence of a specific request therefor by
the General Counsel, I shall not order that Respondent
Union refund to employees of Respondent Employer all
dues checked off pursuant to such dual-purpose cards, as
having been unlawfully exacted.
Because of the character and scope of the unfair labor
practices engaged in by the Respondents, it is recommend-
ed that the Respondents cease and desist from in any other
manner interfering with, restraining, and coercing employ-
ees in the exercise of the rights guaranteed in Section 7 of
the Act.
Upon the basis of the foregoing findings of fact and con-
clusions of law and upon the entire record in the case, I
make the following recommended:
ORDER45
A. Respondent Jo-Jo Management Corp., d/b/a
Gloria's Manor Home for Adults, Rockaway Beach, New
York, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Interrogating employees concerning their own and
other employees' union activities; giving employees the im-
pression that their union activities are kept under surveil-
lance; warning employees and threatening them with dis-
charge or other reprisals for engaging in activities on behalf
of Local 1115, Joint Board, Nursing Home and Hospital
Employees Division.
(b) Rendering assistance to Medical & Health Employ-
ees Union, Local 4, Office & Professional Employees Inter-
44 There is some evidence that offers of reinstatement of some kind may
have been made in July 1975 to possibly three of these employees, but there
is also indication that an insufficient opportunity to report was given before
employees were told they were replaced As the matter was not adequately
litigated, I shall leave such matters to the compliance stage of this proceed-
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
national Union, AFL-CIO, by deducting union dues from
the pay of employees who have not executed checkoff au-
thorizations; soliciting employees signatures on dual-pur-
pose membership/checkoff cards of Respondent Union;
and coercing employees to sign such dual-purpose cards
and other undisclosed documents under threat of dis-
charge.
(c) Discharging employees for participating in union ac-
tivities, for participating in filing a union deauthorization
petition with the Board, and, at the request of the Respon-
dent Union, for reasons other than nonpayment of dues
and fees uniformly required as a condition of employment.
(d) In any other manner interfering with, restraining, or
coercing employees in the exercise of rights guaranteed in
Section 7 of the National Labor Relations Act, as amend-
ed.
2 Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Make Donald O'Toole whole for any loss of pay suf-
fered by reason of his discharge on September 16, 1974, for
the period, and in the manner, stated in the section of this
Decision entitled "The Remedy."
(b) Offer Mary Abernethy, William Cleary, Katheryn
Curry, Joan Gruenke, and Wanda Sullivan immediate and
full reinstatement to their former positions or, if such jobs
no longer exist, to substantially equivalent ones, without
prejudice to their seniority or other rights and privileges.
(c) Jointly and severally with Respondent, Medical &
Health Employees Union, Local 4, Office & Professional
Employees International Union, AFL-CIO, make Mary
Abernethy, William Cleary, Katheryn Curry, Joan
Gruenke, and Wanda Sullivan whole for any loss of earn-
ings they may have suffered because of their unlawful ter-
mination of employment, paying to each the sum of money
computed in the manner specified in the section of this
Decision entitled "The Remedy."
(d) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security records, timecards, personnel
records and reports, and all other data relevant to compli-
ance with paragraphs 2(a), (b), and (c) above.
(e) Post at its place of business at 140 Beach 119th
Street, Rockaway Beach, New York, copies of the attached
notice marked "Appendix A." 46 Copies of said notice, on
forms provided by the Regional Director for Region 29,
after being duly signed by the Respondent Employer's rep-
resentative, shall be posted by it immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by any
other material.
(f) Upon being furnished the same by the said Regional
Director, post the notice marked "Appendix B" in the
same manner as "Appendix A."
46 In the event that the Board's Order is enforced by a Judgment of the
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 "
GLORIA 'S MANOR HOME FOR ADULTS
(g) Notify the Regional Director for Region 29, in writ-
ing, within 20 days from the date of this Order, what steps
the Respondent has taken to comply herewith.
B. Respondent, Medical & Health Employees Union,
Local 4, Office & Professional Employees International
Union, AFL-CIO, its officers, agents, and representatives,
shall:
1. Cease and desist from:
(a) Using a card entitled "Application and Check-off
Authorization Blank" or any similar dual-purpose card
which serves as both a union membership application and
as a dues-checkoff authorization in securing the member-
ship of any employee covered by a collective-bargaining
contract under which employees are to become or remain
union members as a condition of employment, unless such
employees are clearly and unequivocally offered an alter-
native means of applying for membership without authori-
zation of checkoff.
(b) Threatening to cause Jo-Jo Management Corp.,
d/b/a Gloria's Manor Home for Adults, to discharge em-
ployees for refusing to sign checkoff authorizations or
other undisclosed documents.
(c) Causing or attempting to cause Jo-Jo Management
to discharge or discriminate against employees with respect
to their tenure of employment or terms and conditions of
employment or to apply the union-security provisions of
their collective-bargaining agreement to employees for re-
fusing to sign checkoff authorizations or undisclosed docu-
ments, or for failure to pay dues and fees not uniformly
required as a condition of employment.
(d) In any other manner restraining or coercing employ-
ees in the exercise of rights guaranteed in Section 7 of the
Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Jointly and severally with Respondent Jo-Jo Man-
agement Corp., d/b/a Gloria's Manor Home for Adults,
make whole Mary Abernethy, William Cleary, Katheryn
Curry, Joan Gruenke, and Wanda Sullivan for any loss of
earnings they may have suffered because of their unlawful
termination of employment, paying to each the sum of
money computed in the manner specified in the section of
this Decision entitled "The Remedy."
(b) Post at its offices wherever maintained, and at its
meeting hall, copies of the attached notice marked "Ap-
pendix B." 47 Copies of said notice, on forms provided by
the Regional Director for Region 29, after being duly
signed by Respondent Union's representative, shall be
posted by it immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to mem-
bers are customarily posted. Reasonable steps shall be tak-
en by Respondent Union to insure that said notices are not
altered, defaced, or covered by any other material.
(c) Mail signed copies of the notice to the said Regional
Director for posting by Jo-Jo Management Corp., d/b/a
Gloria's Manor Home for Adults, at all places where no-
tices to its employees are customarily posted.
(d) Notify the Regional Director for Region 29, in writ-
1147
ing, within 20 days from the date of this Order what steps
the Respondent has taken to comply herewith.
47 See fn 46, supra
APPENDIX A
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had the chance to present
evidence and arguments, the National Labor Relations
Board has found that we violated the National Labor Rela-
tions Act, and has ordered us to post this notice and carry
out its terms.
WE WILL NOT interrogate employees concerning their
own or other employees' union activities.
WE WILL NOT give employees the impression that
their union activities are kept under surveillance.
WE WILL NOT warn employees and threaten them
with discharge or other reprisals for engaging in activi-
ties on behalf of Local 1115, Joint Board Nursing
Home and Hospital Employees Division.
WE WILL NOT deduct union dues from the pay of
employees who have not executed checkoff authoriza-
tions or solicit employees' signatures on the dual-pur-
pose membership/checkoff cards of Medical & Health
Employees Union, Local 4, Office & Professional Em-
ployees International Union, AFL-CIO.
WE WILL NOT discharge employees for participating
in protected concerted and union activities, for partici-
pating in filing a union deauthorization petition with
the National Labor Relations Board, or at the request
of Medical & Health Employees Union, Local 4, Of-
fice & Professional Employees International Union,
AFL-CIO, for reasons other than nonpayment of
dues and fees uniformly required as a condition of
employment.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of
rights guaranteed in Section 7 of the National Labor
Relations Act, as amended.
WE WILL reimburse Donald O'Toole, with interest,
for the loss of pay suffered by him because of our
discharge of him for union activities and for filing a
petition with the Board.
WE WILL offer reinstatement in their old jobs, with-
out loss of seniority or other privileges, to Mary Aber-
nethy, William Cleary, Katheryn Curry, Joan
Gruenke, and Wanda Sullivan, and jointly and sever-
ally with Medical & Health Employees Union, Local
4, Office & Professional Employees International
Union, AFL-CIO, reimburse each, with interest, for
any loss of pay suffered by reason of their discharges.
JO-JO MANAGEMENT CORP., d/b/a GLORIA' S MANOR
HOME FOR ADULTS