Grey'S Colonial Acres Boarding Home For The Aged

National Labor Relations Board - Board Decisions

Dec 16, 1987

287 N.L.R.B. 877 (N.L.R.B. 1987)

GREY'S COLONIAL BOARDING HOME 877
Kenneth W. Grey, Jr. and Ada N. Grey d/b/a
Grey's Colonial Acres Boarding Home for the
Aged and International Brotherhood of Team-
sters, Chauffeurs , Warehousemen and Helpers
of America , Local Union No. 538 , AFL-CIO.'
Case 6-CA-14534
16 December 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN, BABSON, STEPHENS, AND
CRACRAFT
On 29 June 1982 Administrative Law Judge Ben-
jamin Schlesinger issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed a brief in opposition
to the Respondent's exceptions.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,2 and
conclusions and to adopt the recommended Order.
We agree with the judge that the Respondent
violated Section 8(a)(3) and (1) of the Act by dis-
charging employees Janet Bosco, Nancy Fabian,
Jennie Fusaro, and Candy Graff for their activities
on behalf of the Union, Local 538,3 and also violat-
ed Section 8(a)(1) of the Act by threatening em-
ployees with surveillance and interrogation of their
union activities, threatening to withdraw future
wage increases, promising to implement new work
schedules and to increase shift time, and thereafter
implementing a new work schedule in order to dis-
courage employee support for Local 538. We also
agree with the judge that Local 538 enjoys the sup-
port of a majority of the Respondent's employees
' On 1 November 1987 the Teamsters International Union was read-
mitted to the AFL-CIO Accordingly, the caption has been amended to
reflect that change
2 The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
J In affirming the judge's finding that the Respondent had knowledge
of its employees' union activities and that the discharges violated the Act,
we emphasize that not only is this a "small plant," but the Respondent's
co-owner, Ken Grey, admitted that there was a grapevine from which he
would always find out information about what the employees were doing
and thinking The four discharged employees discussed their dissatisfac-
tion with working conditions for several months, and at the time of the
discharge the overwhelming majority of the unit employees knew of the
union campaign This, taken together with the sudden discharge of the
four employees the day after the first union meeting and on the day when
card solicitations were taking place on the Respondent's premises, war-
rants a finding that the Respondert knew of the union activities
Member Babson agrees that the circumstantial evidence here supports
an inference of employer knowledge of the employees ' union activities
He therefore finds it unnecessary to pass on the judge's additional reli-
ance on the "small plant" doctrine
in an appropriate unit by virtue of the fact that 13
of the 19 unit employees signed either authoriza-
tion cards or dues-checkoff cards on behalf of
Local 538,4 and that in the circumstances of this
case, a bargaining order is appropriate
Our dissenting colleagues object to our counting
the four dues-checkoff cards as evidence of em-
ployee support for Local 538 because they find
"nothing on the face of the card to suggest that its
execution was to be construed either as an expres-
sion of the signer's support for Local 538, or as an
authorization to Local 538 to represent the signer
for collective-bargaining purposes." They suggest
that the checkoff card only authorizes the Re-
spondent to deduct from the employee's wages "all
initiation fees, reinitiation or reinstatement fees,
membership dues and uniform assessments" and
that, consequently, the cards cannot be used for the
purpose of determining majority support. Our dis-
senting colleagues' argument is clearly without
merit.
In Lebanon Steel Foundry, 33 NLRB 233, 239
(1941), enfd. 130 F.2d 404 (D C. Cir. 1942), cert.
denied 317 U.S. 659 (1942), the Board held:
[A]n employee who signs such a check-off
card thereby clearly evinces a desire to have
the union in whose favor the check-off is au-
thorized negotiate a contract with his employ-
er as his collective bargaining representative.
This seems to us the reasonable intendment of
the check-off cards, and no evidence was ad-
duced or offered in the present proceeding to
show that the respondent's employees under-
stood otherwise
In enforcing that Board decision, the court of ap-
peals further noted that to interpret the cards as
not necessarily indicating an intent to support the
union and authorize it to bargain for the signers
would be to assume that the signers were deliber-
ately engaging in a "futile act," because dues could
not be checked off if the union were not the em-
ployees' lawful bargaining representative. Lebanon
Steel Foundry v. NLRB, 130 F.2d 404, 408 "The
card must be given some effect," the court con-
cluded, and that "can be done only if it is effective
to give authority to bargain collectively "
In the instant case, there is testimony by solici-
tors and cardsigners that the employees were told
that by signing the card, the Union would bargain
for and represent them. Thus, Lebanon Steel is
squarely on point. Indeed, the language of the
4 In total, nine authorization cards and four dues-checkoff authoriza-
tion cards were signed
287 NLRB No. 89
878 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
checkoff form s as well as the testimony of the
signers and solicitors concerning what was said at
the time of the solicitation, substantially supports
the conclusion that representation by the Union
was contemplated. In the absence of a union-securi-
ty clause, we can envision no other explanation for
the voluntary signing of a dues-checkoff card.6
This result is consistent with NLRB v. Gissel Pack-
ing Co., 395 U.S. 575, 606 (1969), in which the
Court stated-
[E]mployees should be bound by the clear lan-
guage of what they sign unless that language is
deliberately and clearly canceled by a union
adherent with words calculated to direct the
signer to disregard and forget the language
above his signature.
The Court in Gissel was referring to statements
that the cards will probably be used first to get an
election, and found no inconsistency concerning
the statements and the card's language. Certainly,
in the instant case, there is nothing inconsistent in
soliciting signatures on cards authorizing deduc-
tions for union dues, fees, and assessments, and stat-
ing that the Union would bargain for the employ-
ees.7
5 in addition to the above-quoted language, the dues-checkoff card also
contains the following language
This authorization shall be irrevocable for a period of one year
or until the termination of the applicable collective bargaining agree-
ment
The reference to such an agreement surely contemplates representation
by the Union, otherwise it is meaningless
6 Our dissenting colleagues point to certain factual differences between
Lebanon Steel and the present case While we agree that factual distinc-
tions can be made between the two cases, such distinctions in no way
undermine the basic holding in Lebanon Steel that an employee who vol-
untarily signs a union checkoff card demonstrates a desire to have that
union act as his or her representative in fact, without a collective-bar-
gaining agreement containing a checkoff provision, there would be no
obligation on the Respondent to deduct dues and fees pursuant to the
checkoff and remit them to the Union That being the case, the execution
of the checkoff card by the employee would be an exercise in futility-
unless, as evident here, the employee intended it to designate the Union
as his or her bargaining representative
7 Our dissenting colleagues, without citing any specific language in
their opinion, suggest that the Supreme Court in NLRB v Gissel Packing
Co, supra, implicitly overruled Lebanon Steel However, the Court in
Gissel framed the issue as "whether a union can establish a bargaining ob-
ligation by means other than a Board election and whether the validity of
alternate routes to majority status, such as cards, was affected by the
1947 Taft-Hartley amendments " 395 U S at 595-596 (emphasis added)
The Court continued to recognize the longstanding precedent that a
union "could establish majority status by other means under the unfair
labor practice provision of § 8(a)(5)- by showing convincing support, for
instance, by a union-called strike or strike vote, or, as here, by possession
of cards signed by a majority of the employees authorizing the union to
represent them for collective bargaining purposes " Id at 597 (emphasis
added) These references to means of establishing majority support are
merely illustrative rather than exclusive We find support for this posi-
tion, and for our conclusion that Gissel did not overrule Lebanon Steel, in
the Court's citation of its own decision in United Mine Workers v Arkan-
sas Flooring Co, 351 U S 62 (1956), for the proposition that "a 'Board
election is not the only method by which an employer may satisfy itself
as to the union's majority status,' 351 U S , at 72, n 8, since § 9(a),
'which deals expressly with employee representation, says nothing as to
For these reasons we agree that the judge prop-
erly counted the four dues-checkoff cards as evi-
dence of employee support for Local 538 and, as
noted, further agree with his finding that Local 538
enjoyed majority support among the Respondent's
unit employees and that a bargaining order is
needed to remedy the effects of the Respondent's
unfair labor practices.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Kenneth W.
Grey, Jr. and Ada N. Grey, d/b/a Grey's Colonial
Acres Boarding Home for the Aged, Kittanning,
Pennsylvania, its officers, agents, successors, and
assigns, shall take the action set forth in the Order.
CHAIRMAN DOTSON and MEMBER JOHANSEN, 'dis-
senting in part.
We agree with our colleagues and the judge that
the Respondent in various manners violated Sec-
tion 8(a)(1) of the Act.i We do not, however,
agree with their finding that Local 538 has demon-
strated that it enjoys the support of a majority of
the Respondent's employees in an appropriate unit.
Our colleagues' finding that Local 538 obtained
majority support among the Respondent's employ-
ees is premised on the fact that of the 19 employees
in the unit, 9 signed membership authorization
cards designating Local '538 as their bargaining rep-
resentative, and 4 signed dues-checkoff authoriza-
tion cards which our colleagues find are indicative
of employee support for that labor organization.
Contrary to our colleagues, we find that the dues-
checkoff cards signed by these four employees
how the employee's representative shall be chosen,' 351 U S , at 71 "
Gissel, 395 U S at 597 At one of the cited passages in Arkansas Flooring,
the Court itself had relied on the court of appeals decision enforcing the
Board's order in Lebanon Steel and, in particular, a page in that decision
emphasizing the necessity for "commonsense" rules for construing an em-
ployee's grant of bargaining authority Lebanon Steel Foundry v NLRB,
supra, 130 F 2d at 407, cited in 351 U S at 71 We find it impossible to
conclude that the Court intended to overrule Lebanon Steel in the same
decision in which it cited with approval one of its own prior cases that
had relied on it
i Member Johansen also agrees with the majority that the Respondent
violated Sec 8(a)(3) and (1) of the Act when it discharged employees
Bosco, Fabian, Fusaro, and Graff
Chairman Dotson does not agree that the discharge of the four em-
ployees violated the Act In this regard he notes that there is no direct
evidence that the Respondent knew of the employees' union activities
prior to discharging them and that these employees, in fact, concealed
their activities from the Respondent Unlike his colleagues and the judge,
Chairman Dotson will not impute such knowledge on the basis of the
"small plant" doctrine The ambiguous statements made by the Respond-
ent's owner are, in his view, insufficient to establish such knowledge
Under these circumstances, he finds that the General Counsel has not es-
tablished that the discharge of these employees was related to their union
activities and, accordingly, would dismiss these complaint allegations
GREY'S COLONIAL BOARDING HOME
cannot constitute evidence of their support for
Local 538.
The Board has long held that where the purpose
of a card is clearly and unambiguously stated on its
face, it would give effect to the card's stated pur-
pose and would not inquire into the cardsigner's
subjective intent when signing the card.2 As point-
ed out by the Board in Levi Strauss, supra, 172
NLRB at 733 "[a]n employee who signs such a
card may perhaps not understand all the legal rami-
fications that may follow his signing, but if he can
read he is at least aware that by his act of signing
he is effectuating the authorization the card de-
clares." The Board's view in this regard was
upheld by the Supreme Court in NLRB v. Gissel
Packing Co., 395 U.S. 575 (1969), which stated (at
606) that "employees should be bound by the clear
language of what they sign unless that language is
deliberately and clearly canceled by a union adher-
ent with words calculated to direct the signer to
disregard and forget the language above his signa-
ture."3
Applying the above principle to the present case,
it is clear that, contrary to our colleagues and the
judge, the dues-checkoff cards signed by the four
employees do not constitute evidence of their sup-
port for Local 538, or of their desire to be repre-
sented by that organization. Rather, the language
on the face of the checkoff cards clearly indicates
that they were intended to serve as nothing more
than an authorization for the deduction of fees and
dues. Thus, the checkoff card authorizes the em-
ployer to deduct from the employee's wages "all
initiation fees, reinitiation or reinstatement fees,
membership dues and uniform assessments as re-
quired" by the labor organization whose name ap-
pears thereon,4 and further states the conditions
under which the authorization can be revoked.
Other than the above language, there is nothing on
the face of the card to suggest that its execution
was to be construed either as an expression of the
signer's support for Local 538, or as an authoriza-
tion to Local 538 to represent the signer for collec-
tive-bargaining purposes.5
l Cumberland Shoe Corp, 144 NLRB 1268 (1963), enfd 351 F 2d 917
(6th Cir 1965), Levi Strauss & Co, 172 NLRB 732 (1968)
3 Although the issue in Cumberland Shoe, Levi Strauss, and Gissel Pack-
ing involved the effect to be given to authorization cards, the reasoning
and holding in those cases apply equally to situations where, as here, the
question raised is the effect to be given to a dues-checkoff authorization
card
a Local 538's name does not appear anywhere on the face of the dues-
checkoff cards signed by the four employees
s The majority's reliance on the Board's earlier decision in Lebanon
Steel Foundry, 33 NLRB 233 (1941), is misplaced In our view, that deci-
sion was implicitly overruled by the Supreme Court in NLRB v Gissel
Packing Co, supra Further, we note that that decision is, in any event,
factually distinguishable from the present case For example, the Board's
finding in Lebanon Steel, that the dues-checkoff cards signed by employ-
879
In view of the above facts, we would not count
the 4 dues-checkoff cards as evidence of employee
support for Local 538 and, consequently, would
find that Local 538 does not have the support of a
majority of the Respondent's employees in an ap-
propriate unit, having obtained valid authorization
cards from only 9 of the 19 employees in the unit.
A bargaining order under these circumstances is
clearly inappropriate.6
ees constituted an authorization to the union to represent them, was
based on evidence showing a prior custom and usage of such cards for
that purpose, a factor not established here Further, unlike the present
case , the employer in Lebanon Steel never questioned the validity of the
cards or the union's majority status prior to engaging in negotiations with
the union For these reasons we find, contrary to the majority, that the
Lebanon Steel decision is not controlling here
6 Gourmet Foods, 270 NLRB 578 (1984)
Leone P. Paradise, Esq., for the General Counsel.
Henry W. Ewalt, Esq. and John DiClemente, Esq. (Brooks
& Ewalt), of Pittsburgh, Pennsylvania, for the Re-
spondent.
Raymond Baker and Richard Sharkins, of Ford City,
Pennsylvania, for the Charging Party.
DECISION
STATEMENT OF THE CASE
BENJAMIN SCHLESINGER, Administrative Law Judge.
This proceeding was heard before me in Pittsburgh,
Pennsylvania, on February 1-5 and 19, 1982, and in-
volves four discharges and other alleged violations of
Section 8(a)(3) and (1) of the National Labor Relations
Act 29 U.S.C. § 151 et seq., so serious, the General
Counsel contends, that a bargaining order is required to
remedy them pursuant to NLRB v. Gissel Packing Co.,
395 U.S. 575 (1968). Respondent Kenneth W. Grey Jr.
(Ken) and his wife, Ada N. Grey (Ada), doing business
as Grey's Colonial Acres Boarding Home for the Aged
(the Home), denied that it violated the Act in any
manner and that, even if it did, a Gissel bargaining order
should not be granted.
On the entire record,' including my consideration of
the briefs filed by the General Counsel and Respondent
and particularly my observation of the demeanor of the
witnesses, I make the following
i The parties jointly moved to correct the official transcript in one re-
spect, and the General Counsel individually moved to correct the tran-
script in other respects, to which there was no opposition The motions
are granted and the transcript is amended accordingly The relevant
docket entries are as follows The unfair labor practice charge was filed
on May 7, 1981, and amended on June 29 , 1981, by Charging Party Inter-
national Brotherhood of Teamsters, Chauffeurs , Warehousemen and
Helpers of America, Local Union No 538 (the Union), complaint issued
on June 30, 1981, which was amended on July 23, 1981 , and further
amended at the hearing
880 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. JURISDICTION
I find, as Respondent admits, that it is a jointly owned
sole proprietorship engaged as a health care institution in
the operation of a nursing and boarding facility for the
aged in Kittanning, Pennsylvania. Based on a projection
of its operations since October 22, 1980, at which time
Respondent commenced its operations, Respondent in
the course and conduct of its business will annually
derive gross revenues in excess of $100,000; and since
October 1980, Respondent purchased and received at the
Home products, goods, and services valued in excess of
$18,000 from other enterprises, including Sky Brothers,
Jefferson Wholesale, John Groves, Continental Topper,
Alen's Market, and R&B Institutional Sales, all located in
the Commonwealth of Pennsylvania and each of which
had received the products, goods, and materials directly
from points located outside Pennsylvania I conclude
that Respondent is now, and has been at all times materi-
al, an employer engaged in commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act and a health
care institution within the meaning of Section 2(14) of
the Act
I further conclude, as Respondent admits, that the
Union is, and has been at all times material, a labor orga-
nization within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
From the perspective of the General Counsel' s case,
the facts surrounding the discharge of Janet Bosco,
Nancy Fabian, Jennie Fusaro, and Candy Graff (some-
times referred to as the four employees) are simple The
four, all longtime employees,2 were suddenly discharged
by telephone calls from Ken at 11 p.m on April 30,
1981,3 the day following the employees' first union meet-
ing at which they signed union authorization cards, on
the same day that further union activities were conduct-
ed, and 8 hours after the end of their normal work shifts.
No prior warning had been given to any of them, and
Ken's reasons for notifying them that their services were
no longer needed (no reason was given to Fusaro) were
indicative of discharges for an illegal purpose. The mass
discharge of union supporters, without prior notification
and coming on the heels of their first attempts at self-or-
ganization, has been deemed sufficient, without more, to
support an inference and finding of union animus, knowl-
edge of union activities, and illegal motivation. NLRB v.
Great Dane Trailers, 388 U S. 26 (1967); Syracuse Dy-Dee
Diaper Service, 251 NLRB 963, 966-967 (1980).
Respondent, however, contends that the employees'
union activities did not motivate its actions Instead, it
argues as follows: Grey and his wife, Ada, assumed own-
ership of the Home in October 1980 and, at an earlier
meeting with employees, announced that they were new
to the operations of the Home, had been convinced by
2 Prior to October 22, 1980, the Home was operated by William Alt-
meyer under the name of Altmeyer Colonial Acres Bosco was first em-
ployed by Altmeyer in March 1976, Fabian , April 1977, Fusaro, June
1977, and Graff, April 1974
a All dates refer to 1981, unless otherwise stated
Altmeyer not to make any personnel changes immediate-
ly, and intended to watch over the operations for 6
months, at which time they would then decide what
changes, if any, of personnel and operating procedures
were required. On April 30, a Lois Wingard visited the
Greys and complained that certain nursing staff employ-
ees were taking money and checks from her relative and
one of the residents, Eleanor Montgomery The Greys
confronted the morning and afternoon employees at shift
change4 with Wingard's charges, told them that it was
always against Respondent's policy to accept money
from residents, and asked who had been responsible. Al-
though one or more employees confessed, Bosco, the re-
cipient of more gifts than perhaps all other employees
combined, said nothing. Apparently disenchanted with
Bosco's silence, the Greys decided to terminate her, and,
feeling that the time was ripe to make a clean sweep of
less than adequate personnel, decided to review all the
personnel files to determine who else should join Bosco
as a former employee of Respondent. Ken and Ada
talked about the performance of their staff all afternoon
and evening, reviewed all personnel files, and finally de-
cided to terminate the four, Ken notifying each of them
about 11 o'clock that evening. Respondent alleged that
not only were the complaints about Bosco and the subse-
quent review of its employees' work habits its sole moti-
vating factors, but also that it had no knowledge' that
any union activities were being engaged in, no less by
whom, and no animus against the Union in any event
There are, however, a number of facts that cast doubt
on Respondent's contentions, not the least of which is
Respondent's discharge. of employee Eleanor Gearhart in
January for thwarting Respondent's attempts to run the
Home efficiently and to make changes necessary to that
goal. Gearhart's problems of attitude, including Ken's
complaint that she would not look him in the eye, were
similar to those reasons relied on by Respondent for its
discharge of Fabian, Fusaro, and Graff.5 Thus, there was
no impediment to their earlier discharge and no clear
commitment that Respondent would not make personnel
changes prior to the end of the 6-month period.
In a sense , the Gearhart discharge sustains other of
Respondent's claims. It was clearly not based on union
activities; indeed, her discharge gave partial impetus to
the employees' attempt to organize Further, Gearhart
was discharged without earlier warning and with no
reason given to her, somewhat similar to the manner in
which the four employees were discharged. But what
distinguishes her discharge from the four at issue is that
the Greys discharged her when they found that they
could not work with her. Here, they rely on the same
reasons for at least three discharges, existing for up to 4
months, but they made no move to correct it. Rather,
Respondent urges in essence that they were required to
continue to employ their employees for at least 6
months, and their 6-month review, caused by the Win-
gard complaint, led them to the discharge, a defense that
4 The shift change occurred about 3 p in The day-shift employees
worked from 7 am to 3 p in The afternoon shift worked from 3 to I1
p in Graff did not work on April 30
5 R Br 24
GREY'S COLONIAL BOARDING HOME 881
might be plausible if Gearhart had not been discharged,
but that, under these facts, cannot withstand scrutiny 8
I find that none of the adverse criticisms aimed at the
four employees were deemed by the Greys, even if I be-
lieved them all, of sufficient gravity to warrant any disci-
plinary action , otherwise , like Gearhart , they would have
been discharged I was particularly unimpressed with
Respondent 's reasons for discharging Fusaro, Ken's
major complaint being that she declined to work an addi-
tional day every other week. But Ken asked Fusaro to
work the additional day in December 1980, more than 4
months before her discharge , and, when she declined to
do so, Ken obtained other help Ada's claim that Fusaro
was rough and did not have much patience with the resi-
dents and hurt their feelings is similarly unavailing be-
cause no action was taken against her, even though Re-
spondent argues that satisfactory treatment of residents
and providing them with adequate care "are essential to
the continued success and operation or' the Home.7 Not
only do I find that Fusaro was not rough or hurtful to
her wards , noting that Respondent never opposed Fu-
saro's application for unemployment benefits (Respond-
ent opposed the applications of the other three), but also
it would be wholly inconsistent to find otherwise, for
Ken's request of Fusaro to work additional days demon-
strates that Fusaro was a valued employee and, there-
fore, that Ada's claim was unfounded and should not be
believed.8 Because Ken joined in that claim and took
what I deem to be an entirely inconsistent position, his
credibility is at best tainted
Without a sound reason asserted for Fusaro's dis-
charge, the law permits the inferences that Respondent's
motivation lies elsewhere and that the discharge was ille-
gally motivated Shattuck Denn Mining Corp. v. NLRB,
362 F.2d 466, 470 (9th Cir 1966) If hers was so motivat-
ed, what of Fabian , who did nothing on April 30 that
Respondent relied on for disciplining her The paucity of
reasons for discharging Fusaro was not lacking as to
Fabian Indeed , some of the reasons relied on by the
Greys at hearing might be considered, if true, so grave
that Respondent would have earlier discharged her
Thus, Fabian did not clean up spilled jelly beans for
days, despite Ken's requests for her to do so, she as-
sumed managerial functions by rearranging work sched-
ules to lessen her own workload, she did not attend to
the residents ' needs , when she did so, she gave inad-
equate dental care and physically injured one patient, she
deliberately refused to cooperate with the Greys' at-
tempts to run the Home efficiently 9 Respondent
6 Ken never , in fact , testified that he announced to the employees in
July 1980 that he would retain them for 6 months He said only that Alt-
meyer asked the Greys to keep the employees for "a period of time" and
the Greys agreed
R Br 23
B Ken testified that he did not discharge Fusaro but laid her off indefi-
nitely in order to force Fusaro to accept 4 days of work each week be-
cause she would then need the money I find this wholly incredible In
addition , I note that at the time of the hearing , Respondent employed one
employee who worked only 3 days each week, I day every other week
less than Fusaro worked
9 Fabian's alleged refusal to accept the Greys, to cooperate with them,
and to look them in the eye were the same complaints that prompted
Ken's discharge of Gearhart months before
argues:10 "Certainly , injuring residents and failure to
take proper care of them are sufficient offenses for which
serious discipline may be imposed Further, lack of
proper care of residents would do serious damage to Re-
spondent 's business and could result in imposition of li-
ability " I agree with this statement , assuming that the
underlying events took place as alleged
The problem with Respondent 's list of offenses is that
it is so long that if they are true, it is improbable that
Fabian ever would have lasted as long as she did Simi-
larly, Graff was accused of not taking proper care of
residents ; not walking them, despite knowing that this
was important and despite Ken's repeated requests that
she do so; taking excessively long lunch and coffee
breaks and taking unauthorized breaks so that she was
not available when needed , having a rebellious attitude
and refusing to change her attitude , despite repeated dis-
cussions with the Greys Here, again , I cannot conceive
that Graff remained as an employee as long as she did, if
the Greys ' account were credited I find that these
events relied on did not take place as alleged by Re-
spondent and credit the denials of Fabian '' and Graff. In
any event , even if the incidents occurred , it is obvious
that Respondent did not consider that they were as seri-
ous as the Greys would now have me believe
I find compelling that the only employees selected for
banishment from the Home were persons who had
signed union cards the day before At least two of them,
Graff and Fusaro, had been instrumental in advocating
employees ' organization - Graff arranged the union meet-
ing, which was held at her house , Fusaro contacted
other employees the next day to obtain further support
for the Union . Fabian was perceived as a follower of
Graff, whatever Graff did, Fabian was sure to follow.
Although Respondent argues that it had no knowledge
of the employees ' union activities , the selection of only
union adherents may not be looked at as merely coinci-
dental Hedison Mfg. Co., 249 NLRB 791, 804 (1980),
enfd . 643 F 2d 32 ( 1st Cir. 1981) It is accurate that there
is no direct proof that the Greys were aware , but reason-
able inferences may be drawn from various facts present
in this record . When Ken notified Fabian of her dis-
charge, he told her that it was "due to recent circum-
stances" (according to Ken ) or "in [light ] of today's hap-
penings" (according to Fabian ) It may be argued that
Ken's remarks were intended to convey hit and Ada's
review of Fabian 's personnel file as a result of the Win-
gard complaint , but a more likely view of Ken's remarks
is that he ascertained some new fact about Fabian which
he did not know before. He clearly knew how to limit
his remarks, for he testified that he discharged Bosco be-
cause of " things that have just been brought to our atten-
tion," 12 which I understand to be the charges of her
10 R Br 21
11 Fabian did not take issue with the criticism that she did not sweep
up the jelly beans Otherwise , Ada described Fabian as "willing," which
is completely contrary to her work habits as portrayed by the Greys else-
where
12 This and the following quotation are from the i I p in telephonic
discharge notifications , as testified to by Ken
882 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
taking money . Further, Ken gave no reason at all to
Fusaro, and to Graff he announced "We had made
changes before and she had fought against us and we
were going to make more changes and I didn ' t want the
resistance ." In the circumstances , the "resistance" more
likely refers to Ken 's recent obtaining of knowledge
about the union organization activities.
I also infer that Ken had knowledge of the union ac-
tivities because the employee complement was small13
and he admitted that there was a grapevine from which
he would always find out information about what the
employees were doing and thinking . Weise Plow Mfg.
Co., 123 NLRB 616 (1959 ). This is bolstered , in particu-
lar, by the fact that at the time of the discharge about 15
of Respondent 's employees knew of the union campaign
At least two, Pat Smith , who refused to sign a union au-
thorization card, and Vera McMeans, who was a signato-
ry to a union authorization card , might well have been
the source of the Grey's knowledge . McMeans told the
Greys about the union activities but could not recall
when, believing it was after the discharges . The weight
of her testimony is tempered by the fact that she ap-
peared to be clearly aligned with Respondent at the time
of the hearing 14 Smith did not testify , and she was the
person to whom all employees were to report when the
Greys were not available . She had been told prior to the
discharges of the union activities of the four employees
who were later discharged . Finally, Respondent 's motive
and, therefore , knowledge , is clearly shown by Ken's
latest reference to the four employees as "troublemak-
ers," 15 a reference which in all the circumstances, par-
ticularly his reference to Fusaro , who was not guilty of
any conduct that would qualify her as a "troublemaker,"
could have meant only that Ken knew that the • four em-
ployees were union adherents.
Wright Line, 251 NLRB 1083 (1980), enfd . 662 F 2d
899 (1st Cir 1981), required the General Counsel, in a
dual-motivation case, to make a prima facie showing to
support an inference that the protected union activities of
the employees involved was a "motivating factor" in the
employer's decision to discipline them . The Board holds
that , at that point, the burden shifts to the employer to
demonstrate that the same action would have taken place
even in the absence of the protected or union activities
Here, however, I find and conclude that Respondent's
13 Although the four dischargees attempted to keep their conversations
private, they and two other employees discussed their dissatisfaction with
Respondent's working conditions for 3 months prior to their contact with
the Union
14 The employee witnesses sat at the hearing in two distinct groups,
attesting to their allegiances The alleged discrimmatees and the General
Counsel's other witnesses sat together at one side of the room , Respond-
ent's witnesses, including its employees, sat with Ada or with Altmeyer,
who transported some of them to and from the hearing
15 The four employees were reinstated by Respondent during the week
of June 7, after the unfair labor practice charge had been filed here In
October, Ken told employee Myrna Walker that "when he got rid of the
troublemakers, the tension around the Home had gone away, but when
they came back , the tension came back , the tensions came back too " The
Greys made much of the fact that at ' ast three employees led the "resist-
ance ," Graff being the leader and I'usaro being part of the resistance
Again, there is nothing in the record about why Fusaro was so catego-
rized, other than what Ken must have known-that she was a union ad-
herent -
discharges of Fabian, Fusaro, and Graff were motivated
solely by its employees' union activities and that Re-
spondent violated Section 8(a)(3) and (1) of the Act
The issues regarding Bosco are different from those in-
volving the other three employees. Whereas I have
found that there was no reason that prompted the Greys
to examine their work performance, there was indisputa-
bly a question raised about Bosco's receipt of numerous
checks from Montgomery and her failure to reply to the
Greys' question of who had received checks. t 6 Again,
what is important is whether these facts motivated the
Greys to discharge Bosco or whether the reasons ex-
pressed by them were used as a pretext for her dis-
charge.
Some of the same rationale utilized in the earlier anal-
ysis here is pertinent. The list of horrors related by the
Greys makes one wonder how Bosco lasted as long as
she did. She was portrayed as an utter incompetent,
unable to prepare menus, and to cook biscuits. She spent
inordinate periods of time with Montgomery, referring
her to other doctors and hospitals, 17 and catering to her
every need, and then some, causing dissension among the
other employees, who had to work harder to please
Montgomery. Furthermore, not only did Bosco take
money, Ken mentioned as one of his reasons for her dis-
charge that she stole furniture when one of the residents
died These add up to a most harsh condemnation of
Bosco and, even if incorrect but honestly believed to be
true, gave firm foundation to a discharge, especially
when her work record is culminated by charges of re-
ceiving money from a resident.
However, Respondent's purported justification is tem-
pered by a number of facts, including my finding that the
testimony of the Greys is generally not to be trusted.
First, because I have found that the Greys gave no com-
mitment to continue the employment of Altmeyer's
former employees, I cannot credit their insistence that all
of these reasons truly motivated them to discharge
Bosco. Second, I find some of them simply untrue and
disparate. Whereas Ken relied on the accusation of
Bosco's theft, he refused to do so in the case of employ-
ee Elizabeth Zemko, because the charge had not been
verified.18 The attention that Bosco gave to Montgom-
ery had specifically been approved by Altmeyer on the
ground that Montgomery was one of the higher paying
residents and deserved to be catered to. Indeed, one of
the alleged criticisms directed at Fusaro was that she re-
fused to give a resident a cup of coffee, and Respondent
had issued rules to its employees that they were em-
ployed to give service to the residents For Respondent
now to urge that Bosco was discharged because she gave
is There is a conflict in the testimony about whether such question
was asked, which I resolve in favor of the Greys, noting particularly that
Shirley Harkleroad corroborated their testimony Because Bosco was
standing far away from the Greys, it may be that she did not hear the
question
17 This was allegedly raised by Wingard on April 30, but Ken recalled
that Bosco denied this allegation when confronted with it Because there
is no testimony that Ken talked with Bosco on April 30, his conversation
must have taken place earlier in any event, Bosco denied that she so ad-
vised Montgomery, and i believe her
18 Zemko did not sign a union authorization card
GREY'S COLONIAL BOARDING HOME 883
too much attention to a resident appears to undercut the
very nature of the purpose of the Home 19
Finally, there remains to be assessed the Wingard com-
plaint and whether that was, in fact, the alleged "straw
that broke the camel's back " There was much dispute
regarding Respondent's prior practice of prohibiting its
employees from accepting any gifts from residents Alt-
meyer, the Greys, and some of Respondent's witnesses
uniformly agreed that such was the rule To the con-
trary, the General Counsel's witnesses uniformly testified
that they knew of no such rule. I am persuaded that the
General Counsel's case is much the stronger 20 The
typed rules posted before the Greys assumed ownership
of the Home stated nothing. The rule was first set forth
in writing by Ken on or about June 1, 1981 Bosco testi-
fied without contradiction- (1) that Ada knew that Bosco
had accepted a check from a resident to purchase a blan-
ket, and Ada said nothing, (2) that another employee re-
ported to Ken that she had received a check from a resi-
dent, and in reply to her question whether anyone else
had received a gift, Ken replied that he had received a
check for $10, and (3) that Bosco had at Christmas 1980
placed an order for a resident to purchase two fruitcakes,
one for Respondent's employees, which they ate at the
Home, and the other for the Greys, to be delivered to
their house There was testimony that employees re-
ceived fruit, candy, and plants, without objection Graff
testified that she had received a check from a resident
and asked Ada whether it would be all right to accept it;
Ada had no problem with that Respondent acknowl-
edged that they had permitted another employee to re-
ceive a Christmas check from a resident. Although there
is some support in Grafts and the Greys' testimony that
employees sought permission from the Greys to accept
gifts, I find that there was no such rule and that employ-
ees had the right to receive gifts in their own discretion.
If they believed it was necessary, they would ask the
Greys for permission, but there was no requirement to
do so When permission was requested, it was always
granted by the Greys 21
I am persuaded, therefore, that the Wingard complaint
constituted a convenient pretext for Respondent to dis-
charge her 22 The Greys' immediate reaction to the
19 Despite the fact that complaints about Bosco's doing favors for
Montgomery commenced in late January or early February, Ada made a
memorandum of them only on April 29 I infer that that memorandum
was made for the purpose of this hearing and have generally given to
Respondent's files as much credit as I have given to the Greys' testimo-
ny See also the memorandum to Fusaro's file, dated April, dealing in
generalities about Fusaro's past brusque behavior toward residents
20 In so finding, I credit particularly the testimony of Walker, Harkler-
oad, and Betty Stewart, all of whom no longer worked for Respondent
and had little to gain by altering their testimony
21 Dorothy Peace testified that in 1977 she had accepted a bottle of
wine from a resident Altmeyer found out about it through the grape-
vine" and told her that it was against the Home's policy She did not
know whether the four employees were similarly told about the rule
22 To the extent that Graff was allegedly discharged for accepting
checks, a proposition that I discredit, I made the same finding Further, I
am not persuaded that one of the reasons for Bosco's termination was
that she failed to confess to the receipt of checks Graff was not present
at the shift change meeting on April 30 and thus had no opportunity to
confess She was still discharged
complaint was to consult with their employees and
advise them not to accept gifts. The delay in discharging
her for more than 8 hours and accompanying her dis-
charge with the leading union adherents indicates that
the Greys learned of the employees' union activities be-
tween shift change at 3 and 11 p m and that no decision
regarding the discharge of Bosco had been made until
that knowledge had been obtained 23 I therefore con-
clude that, but for Bosco's union activities, she would
not have been discharged and that Respondent, by dis-
charging her, had violated Section 8(a)(3) and (1) of the
Act.24
Turning to the other violations alleged in the com-
plaint, I find that in early May, Ken called a meeting of
employees at which he announced that he knew that
some employees (or perhaps he said 30 percent of the
employees) had signed union cards, that he did not know
who the signers were, that he did not care, but "eventu-
ally [or "possibly" or "probably"] I'm going to find out
who you are." The General Counsel alleged that this
constituted the creation of an impression of surveillance
and was particularly threatening in light of his earlier ac-
knowledgment of the fact that all the employees knew
he had discharged Bosco, Fabian, Fusaro, and Graff, a
statement that was contained in the investigatory affida-
vit of Harkleroad, which was offered into evidence by
Respondent without qualification However, lacking any
oral testimony by Harkleroad or corroboration by other
witnesses, I refuse to credit it
Nonetheless, I still conclude that Respondent violated
Section 8(a)(1) of the Act, although not precisely in the
manner alleged in the complaint When the Greys re-
ceived the Union's representation petition from the
Board's Regional Office, they posted at the Home the
notice to employees that accompanied it The employees
were thus aware that the petition had been filed and that
it was supported by a showing of interest in the Union.
Ken's statement that he knew that some employees had
signed cards was a matter of public knowledge, and the
employees could not reasonably glean from his remarks
that Ken had found out about union activities from ille-
gal surveillance. However, Ken also threatened that he
would find out who were the union adherents, and I
reject his defense that the meaning of this remark was
merely that rumors were frequently spread around, to
the employees, he could only have been threatening
something more sinister, such as surveillance or interro-
gation
All of General Counsel's witnessess concur, and I
credit their testimony, that Ken also informed the em-
ployees that he had talked with his bookkeeper, Marian
23 Gearhart was discharged at the end of her shift No cogent reason
was presented by the Greys for their delay in discharging Bosco
24 In finding all the discharges illegal under the Act, I have generally
discredited the testimony of the Greys about the reasons for their actions
I note that Ken opposed the applications of Graff, Fabian, and Bosco for
unemployment compensation benefits but raised only some, but not all, of
the reasons for the discharges I specifically find that Ken had shifted
those reasons for his own benefit and not for the truth I find no logic to
support his testimony that he wanted to oppose the claims, while he
knew that he would lose, but he desired to let the employees know what
he had on them, but then he did not relate all the reasons
884 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Barker, about giving the employees a raise in June, that
he and Barker had agreed on the amount, but that he
would not raise wages "until this mess" was cleared up
Ken, while not denying the essence of this allegation, 25
testified that he received with the Union's representation
petition a Board-published brochure outlining rights of
employees in representation elections and was merely re-
laying the thought that he was not allowed to grant pay
raises because it would look like a bribe But the bro-
chure is not that broad, rather, it states as an example of
conduct that interferes with rights of employees: "Prom-
ising or granting promotions, pay raises, or other bene-
fits, to influence an employee's vote by a party, capable
of carrying out such promises." Barring evidence of ille-
gal motivation, Respondent was well within its rights to
grant a previously promised increase'26 but Ken's threat
to withhold the increase because of the employees' union
and protected activities violated Section 8(a)(1) of the
Act.
Finally, the General Counsel alleged in her brief that
Ken informed the employees that he "was contemplating
a number of changes in their working conditions. the
elimination of their free lunches, scheduling employees'
lunch hour one-half hour earlier because the day shift
had too much time on their hands, and the possibility
that employees might have to work one-half hour longer
to compensate for the two 15-minute breaks and changes
in employee shifts."
Respondent contends that, although Ken spoke to em-
ployees about extending their shift one-half hour, he did
so in response to earlier employee complaints about re-
porting in 10 minutes before the commencement of their
shift; and, although he talked about free lunches, he did
so in the context of his accountant's recent advice that
the Internal Revenue Service required that he had to
deduct social security taxes from the cost-free lunches
and, if he were to discontinue free lunches, he would
give each employee an increase in wages to cover the
cost Of course, this latter statement runs somewhat con-
trary to Ken's insistence that he could not make promises
to increase wages, because that' was a violation of the
Act. But that is relevant only to Ken's credibility. What
is substantively important is that, even if I credited Ken's
explanation of why these matters were raised in the way
that they were, I would still find at least one violation of
the Act
The General Counsel does not rely on any union
demand for recognition or bargaining in this proceeding
Without a demand, there can be no violation of Section
8(a)(5) of the Act, even if I were to find, as I do, that a
retroactive bargaining order should be granted to
remedy the unfair labor practices found here Eagle Ma-
25 It is not clear whether all the employees had been definitively
promised a wage increase Some testified that Ken had said merely that
he would be giving raises in 6 months "if things worked out well" or it
would likely be June or July before he could give a raise Ken's state-
ment in May showed that there was an expectation of a raise, which was
canceled by the Union's representation petition
26 Upon advice of its counsel, Respondent granted the wage increase
retroactively There is no proof that the employees suffered any mone-
tary loss, and the General Counsel makes no request for reimbursement
of interest Rather, the complaint alleged as the only violation the threat
to withhold the increase, rather than the act of withholding it
terial Handling of New Jersey, 224 NLRB 1529 (1976),
enfd 558 F 2d 160 (3d Cir 1977) The problem of free
lunches had been discussed with employees months
before Ken's discussion of alternative solutions con-
tained a threat to change employees' working conditions,
but I am unable to link the threat to union activities, es-
pecially when Ken agreed to ensure that the employees
would not be hurt monetarily I conclude that Respond-
ent did not violate the Act However, Ken's discussion
of the extension of the work shift resulted from his belief
that he was solving at least one employee's grievance,
and such discussion was held in the context of discourag-
ing union activities, whether it be looked at as a threat,
as the complaint viewed it, or an illegal promise of bene-
fits, as Ken thought, and I find, it was
The complaint also alleged that about June 1, 1981,
Respondent changed the employees' work schedules.
Employees on the day shift testified that their shifts were
altered from continuous day shifts to 2 weeks on day
shift, followed by 1 week on afternoon shift. Ken's de-
fense to this change was that some employees had earlier
expressed concern about never receiving weekend days
off, and the new schedule was adopted to meet that con-
cern In that sense, the change constituted the grant of a
benefit to some employees to discourage their union ac-
tivities I conclude that Respondent violated Section
8(a)(1) of the Act.
The final group of alleged unfair labor practices con-
cern changes in the following rules adopted June and
October. (1) a bar on soliciting and/or accepting finan-
cial gifts from residents; (2) a requirement to report to
the Greys when any resident asks the employee to pur-
chase something, (3) a requirement to help any resident
even during the employee's meal period, (4) a rule that
the living room is not to be cleaned before 9 p m. on Sat-
urdays, (5) a rule prohibiting whispering in the presence
of residents; and (6) a rule requiring that beds be
changed by the day shift on a resident's shower day
The first rule was discussed above and was a new rule,
at least as of 3 p.m on April 30 Bosco testified that,
when the Greys confronted the employees at the change
of shifts, Ken stated that employees were no longer to
accept gifts or checks to buy items for residents. One
other employee testified that Ken's remark was directed
to receipt of checks from Montgomery and, when she
asked whether that pertained to another resident, Ken re-
plied that it did. The totality of the meeting indicated
that the Greys were making clear to employees Re-
spondent's policy on the first two rules. Because I have
held that they did not have knowledge of the employees'
union activities until later, and have credited their testi-
mony regarding the Wingard complaint, I conclude that
the later written enactment of a rule announced before
they had knowledge of any union activities cannot vio-
late the Act
In addition, the new rule was enacted as a result of the
Wingard complaint and not to interfere with, restrain, or
coerce Respondent's employees in the exercise of their
Section 7 rights 27 Regarding the other rule changes,
27 The rule was enforced later the same day as a pretext to discharge
Bosco
GREY'S COLONIAL BOARDING HOME
Ken stated that the employees' purpose was to serve the
Home's residents and to comply with their requests, that
cleaning of the living room on Saturday evenings pre-
pared the Home for visitors on Sunday; that many resi-
dents construed whispering in their presence as a reflec-
tion on them, and that it was silly to bathe a resident and
thereafter place the resident in an unclean bed It is not
the Board's function to determine whether these rule
changes are justified Rather, it is the Board's function to
determine whether these changes were made in order to
affect employees' Section 7 rights and, in the circum-
stances here, to discourage their union membership or
activities I conclude that there is no factual support for
finding that the rules were illegally motivated and rec-
ommend that these allegations of the complaint be dis-
missed
Ili. THE REQUEST FOR A GISSEL BARGAINING ORDER
The General Counsel contends that the four dis-
charges, together with the other violations found here,
constitute a sufficient basis for a Gissel bargaining order.
Gissel, 395 U S at 613-614, permits the Board to order
an employer to bargain with a union that has demon-
strated majority strength prior to the commission of the
unfair labor practices the order is meant to remedy An
order is appropriate only in "`exceptional' cases marked
by `outrageous' and `pervasive' unfair labor practices"
and "less extraordinary cases marked by less pervasive
practices which nonetheless still have the tendency to
undermine majority strength and impede the election
process " The General Counsel argued that this proceed-
ing falls within both of those categories.
Respondent contends, however, that the Union did not
represent a majority of Respondent's employees, and the
parties are additionally at odds about who should be in-
cluded in the appropriate unit It is stipulated that there
were at least 19 employees in a unit, an issue being raised
regarding the inclusion of Pat Smith and Marian Barker;
and I find that the Union obtained cards authorizing it to
bargain on behalf of 9 employees The General Counsel
offered as additional proof of the Union's majority status
dues-checkoff authorizations and assignment cards28
28 The cards read as follows
I, , hereby authorize and direct my Employer
every month to deduct from my wages all initiation fees, remitatia-
tion or reinstatement fees, membership dues and uniform assessments
as required by Teamsters Local Union No , or its legal succes-
sor I further authorize and direct that these monies so deducted be
turned over each month to the Secretary-Treasurer of Teamsters
Local Union No
This authorization and assignment shall be irrevocable for a period
of one year or until the termination of the applicable collective bar-
gaining agreement, whichever occurs first, and shall thereafter be
automatically renewed for successive periods of one year or until the
termination of the applicable collective bargaining agreement, which-
ever occurs first, unless written notice is given by me to my Em-
ployer and the Union at least 45 days but not more than 60 days
prior to the expiration of each one year period or of the applicable
collective bargaining agreement, whichever occurs first
This authorization and assignment is made pursuant to Section 302
of the National Labor Relations Act, as amended, and is in full force
and effect to the extent permitted by the Act
885
signed by four other employees' collective-bargaining
representative, are sufficient to demonstrate the employ-
ees' intent to become members of the Union and to be
covered by a collective-bargaining agreement that would
be negotiated by the Union In support, she cites Leba-
non Steel Foundry, 33 NLRB 233 (1941), enfd. 130 F 2d
404 (D.C Cir. 1942), cert denied 317 U S 659 (1942),
which appeared to be the only direct authority on the
effect of checkoff cards in a recognition case 29
Respondent argued that the 40-year-old Lebanon Steel
is no longer good law, being superceded by various
amendments to the Act, as well as by Gissel, supra 395
U.S at 606, in which the Supreme Court stated
[E]mployees should be bound by the clear language
of what they signed unless that language is deliber-
ately and clearly canceled by a union adherent with
words calculated to direct the signer to disregard
and forget the language above his signature
It followed, Respondent argued, that if subjective
intent may not be used to vary the terms of cards that
clearly authorize a labor organization to bargain on
behalf of the employee-signatory, subjective intent may
not be interposed to give authority to collectively bar-
gain when the card speaks only in terms of authorizing a
checkoff of dues. Assuming, arguendo, that Lebanon
Steel is not presently valid, there need be no addition of
subjective intent to supply meaning to the four cards at
issue Rather, the objective intent was clearly supplied in
the conversations testified to by the solicitors of the
cards and by the signatories, each of whom related that
they were told that, by signing the card, the Union
would bargain for or represent them and some of whom
were advised that the Union would attempt to better
their terms and conditions of employment. The explana-
tion of the purpose of the cards does not vary or cancel
what the employees signed, instead, it supports what the
Board and court of appeals found important in Lebanon
Steel. that the execution of the dues-checkoff authoriza-
tion evinces a desire by the employee to have the union
in whose favor the checkoff is authorized negotiate a
contract with this employer at his collective-bargaining
representative and, in the context there, could have only
that meaning. This is not contrary to current Board law.
When an employer refuses to recognize a previously rec-
ognized labor organization, it must show that it had suffi-
cient objective considerations for believing that the em-
ployees no longer wish that union to represent them in
collective bargaining. At least one indicator of objective
consideration is a dramatic reduction in the number of
dues-checkoff authorizations 30 If the revocation of
29 However, see Stoner Rubber Co, 123 NLRB 1440, 1445 (1959), in
which the Board stated that proof of majority "may be proved by signed
authorization cards, dues checkoff cards, membership lists, or any other
evidentiary means " Lebanon has been cited in other decisions, with ap-
proval
30 Peoples Gas System, 214 NLRB 944 (1974) It was reversed on
appeal sub nom Teamsters Local 769 v NLRB, 532 F 2d 1385, 1389-1390
(D C Cir 1976), in which the court stated that a decision to submit a
checkoff authorization does not necessarily, mean that the employee sup-
ports the union but may be attributable to confusion, ignorance, or peer
pressure No such showing is present here
886 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
checkoffs demonstrates, together with other consider-
ations, that employees do no wish the union to represent
them, the signing of checkoffs must under Board law
support the view that they do wish the union to act as
their collective-bargaining representative
Finally, my reading of Lebanon Steel is contrary to the
contentions of Respondent Neither the Board nor the
court of appeals relied on subjective evidence. The
court's decision is based solely on objective consider-
ations, namely, its understanding of the meaning of the
signed cards and the prior practice of the union in using
cards to evidence its designation as a bargaining agent.
Respondent argues that Lebanon Steel has no modern ap-
plication in the setting of an agency shop, where non-
union members pay fees to unions without becoming
members or desiring to do so, and that it could not be
relied on because of the 1947 and 1959 amendments to
the Act. The latter argument relying on the passage of
time is not appealing because the amendments have little
to do with the instant issue 31 Concerning the first argu-
ment , even in an agency shop, there is underlying au-
thority for the labor organization to bargain collectively
for employees, despite the fact they they may not
become members of that union.32 I find, therefore, that
Lebanon Steel is still valid and sensible law and that there
is no compelling reason why I should not be bound by it.
The act that four employees agreed to deductions from
their pay and assignment of their wages to the Union is,
in one sense , more compelling indicia of their allegiance
to the Union than a plain authorization card I conclude
that, as of April 30, 13 employees had authorized the
Union to bargain for them
As stated above, the parties were unable to agree on
the appropriate unit for bargaining. Their disagreement
resulted from a dispute regarding the inclusion of Marian
Barker and Pat Smith in the unit Whereas all 19 em-
ployees stipulated in an appropriate unit were involved
in patient care, kitchen and laundry work, and cleaning,
Barker performed only bookkeeping and secretarial func-
tions, had access to all employees' personnel files, and
worked in the same office as do the Greys She had no
contact with either the other employees or their work
and did not wear a uniform, as did other employees
Indeed, she is Ada's sister-in-law, and, according to Ken,
participated in Respondent's decision to raise employees'
wages. Her wage rate is $4.90 per hour, significantly
higher than the rest of the employees.33 Her name does
not appear on Respondent's seniority list, her initials did
not appear on the rules and regulations that Ken re-
quired all other employees to read and sign, and she
worked different hours from all other employees. I con-
clude, in agreement with the General Counsel, that
Barker did not share any community of interest with any
of the other employees, Allegheny General Hospital, 239
NLRB 872 (1978), and that she is at best an office cleri-
cal employee
Smith, contrary to Barker, engaged in the same kind
of work as the other 19 employees However, she was
the only person, other than the Greys, to dispense medi-
cations, and she had and has full responsibility for the
operation of the Home when the Greys were unavailable
and had the authority to resolve any complaints that
might arise All other 19 employees were directed to
refer to her all inquiries regarding patients Her salary
was 50 cents higher than the highest of the other 19 em-
ployees There is no other evidence indicating a supervi-
sory status, and it appeared peculiar that the employees
should have sought Smith's support for the Union if she
were really considered a supervisor I find that she was
not. In any event, in light of my conclusions regarding
the number of valid union authorization cards, even if
Smith were not included in the unit, there would be no
difference either in the Union's majority status (13 of 20
employees) or in the description of the following unit,
which I hereby conclude is appropriate
All employees who engage in patient care, kitchen
and laundry work and cleaning employed by Re-
spondent at its Kittanning, Pennsylvania facility, ex-
cluding all office clerical employees and guards,
professional employees and supervisors as defined in
the Act
The final issue is whether, in all the circumstances, the
unfair labor practices are of such a serious nature that
only a bargaining order may remedy them. The proprie-
ty of such an order turns on the facts in each case. Here,
the employees' attempt to organize was swiftly met with
Respondent's immediate punishment. Within a day and
one-half, 20 percent of Respondent's employees were dis-
charged, including the principal union advocates, Graff
and Fusaro Shortly afterward, Ken advised the employ-
ees that he did not know who the union adherents were,
but he would find out Still later, Respondent changed
the work schedule, a meaningful term and condition of
employment It cannot easily be undone without making
the Union appear as an ineffective mechanism to im-
prove employee needs and desires.34
It is true that, after the unfair labor practice charge
was filed here, in order to minimize the financial effect
of a finding contrary to Respondent in this proceeding,
Respondent rehired all four dischargees, but it does not
follow that this action relieved the need for a bargaining
order35 or that my recommended Order, requiring that
31 Respondent's brief fails to explicate how the amendments changed
the course of labor law to abrogate Lebanon Steel
32 In the context of Secs 8(a)(3) and 14(b) of the Act, payment of dues
under an agency shop provision is the "equivalent" of membership
NLRB v General Motors Corp, 373 U S 734 (1963), Retail Clerks Local
1625 v Schermerhorn, 373 U S 746 (1963) There is no question that
membership in a union constitutes authority to represent the employee in
collective bargaining
33 Only Pat Smith, discussed infra, earned as much as $4 25 per hour
on April 30 Three employees earned $3 75, and the vast majority of the
others earned minimum wages of $3 35
34 The Board's traditional remedy for a unilateral change of terms and
conditions of employment, accompanied by a bargaining order, is to
order the return to the status quo on request of the union This places the
union in a rather untenable position to request that the employee cancel
the shift change may well cause dissension among certain of the employ-
ees who were benefited thereby and who may withdraw their support of
the union if it makes such a request If the union does not so request the
employer may claim, because of its magnanimity, that the union is not
vital to protect employee interests in either event, the employer gains
support, which the union may well find difficult to undercut
35 NLRB v Suburban Ford, 646 F 2d 1244 (8th Cir 1981)
GREY'S COLONIAL BOARDING HOME
the employees be made whole for their loss of pay, with
interest, will be sufficient, without more, to cure the vio-
lations here. Whether there is, in the words of Gissel, 395
U S at 614, a "possibility of erasing the effects of [Re-
spondent's] past practices and of ensuring a fair election
by the use of traditional remedies" must necessarily
be grounded on an unscientific and unprovable determi-
nation of possibilities and probabilities and must look to
how employees will perceive Respondent's actions in the
future, as a result of its earlier illegal conduct That must
rely on the expertise of the Board in assessing the nature
of the unfair labor practices and employees' normal reac-
tions to them Such assessment is aided in this proceed-
ing by the testimony of two employees, McMeans and
Keller, who originally signed union authorization cards
and at hearing demonstrated their current alignment with
Respondent Keller, in particular, I find, discarded her
union adherence immediately after her four fellow em-
ployees were discharged 36 McMeans, originally express-
ing to her fellow employees had organized earlier, did a
complete turnaround, ardently opposed her fellow em-
ployees' attempts at the hearing, and attempted to make
an issue of the validity of her signing of the union au-
thorization card in total contradiction to her earlier pre-
hearing investigatory affidavit
These are only examples of what might be the effect
of employees' discharges in the minds of other employ-
ees They are sufficient indications and reminders that
loss of employment, especially important in the present
economic background, is a necessary result of union or-
ganization and the exercise of Section 7 rights to such an
extent that it is unlikely that employees will forget that
Respondent has power to control their economic desti-
nies, even if its actions ultimately proved illegal and
were administratively or judicially remedied. It has long
been held that the discharge of employees because of
their union activities is a serious unfair labor practice
that "goes to the very heart of the Act," has a residual
effect on employees, and taints the possibility of a free
election. NLRB v. Entwistle Mfg. Co., 120 F 2d 532, 536
(4th Cir 1941), NLRB v. Jamaica Towing Co, 632 F.2d
208, 212-213 (2d Cir 1980). "Discharges for union activ-
ity invariably create a lasting impact on employees, and
the impact is especially severe when a well-known union
activist is the victim of the discrimination." United Dairy
Farmers Cooperative Assn, 257 NLRB 772, 774 (1981).
The Board hereafter observed that in a relatively small
unit, the impact of an employer's unfair labor practices is
exacerbated. United Dairy, 257 NLRB at 773 fn 12,
NLRB v. Wilhow Corp., 666 F 2d 1294, 1305 (10th Cir.
1981). Finally, there is the speed of Respondent's re-
sponse to its employees' union activities that clearly must
be weighed. United Dairy, supra at fn. 13.
In view of Respondent's attempt to crush the "trouble-
makers' and the "resistance," employees could hardly
doubt the firmness of Respondent's resolve. For these
reasons, I conclude that the possibility of erasing the ef-
38 I discredit Keller's testimony that she made up her mind before the
discharges to ask for her card back She contacted no one on April 30 to
make such a request and said nothing to Graff when she advised Keller
late that night that Graff and the others had been fired
887
fects of the unfair labor practices and of ensuring that a
fair election will be held is slight "and that employee
sentiment once expressed through cards would, on bal-
ance, be better protected by a bargaining order " Gissel,
supra, 395 U S. at 614-615. Pursuant to Board law, the
effective date of the bargaining order is April 30, the
date on which Respondent embarked on its unlawful
conduct. Peaker Run Coal Co., 228 NLRB 93 (1977);
NLRB v. Daybreak Lodge Nursing Convalescent Home,
585 F 2d 79 (3d Cir. 1978).
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The activities of Respondent set forth in section II,
above, occurring in connection with the operations of
Respondent described in section I, above, have a close,
intimate , and substantial relationship to trade, traffic, and
commerce among the several States and tend to result in
labor disputes burdening and obstructing commerce and
the free flow thereof.
THE REMEDY
Having found that Respondent has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(1), (3), and (5) of the Act, I shall recom-
mend that it cease and desist therefrom, post an appro-
priate notice, and take certain affirmative action neces-
sary to effectuate the policies of the Act, including an
order requiring Respondent to bargain with the Union
and requiring rescission of the new work schedule, on re-
quest of the Union.
Additionally, I shall recommend that Respondent be
ordered to make whole Janet Bosco, Nancy Fabian,
Jennie Fusaro, and Candy Graff for any losses of earn-
ings they may have suffered by reason of their dis-
charges on April 30, 1980, by paying them a sum of
money equal to that which they normally would have
earned absent the discharges, less earnings during such
period to be computed in the manner prescribed in F. W.
Woolworth Co, 90 NLRB 289 (1950),37 with interest to
be computed in accordance with Florida Steel Corp, 231
NLRB 651 (1977). I shall also recommend, in accordance
with the Board's recent decision in Sterling Sugars, 261
NLRB 472 (1982), that Respondent remove from its
records any reference to its unlawful discharges of the
four employees and so notify them, in writing.
Finally, it follows from the recommended issuance of a
bargaining order that Respondent's violations of the Act
are sufficiently egregious to warrant the entry of a broad
cease-and-desist order. Hickmott Foods, 242 NLRB 1357
(1979).
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed38
37 See generally Isir Plumbing Co, 138 NLRB 716 (1962)
38 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations , the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
888 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ORDER
The Respondent, Kenneth W Grey Jr and Ada N
Grey, d/b/a Grey's Colonial Acres Boarding Home for
the Aged, Kittanning, Pennsylvania, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Discharging its employees because they joined,
supported, and assisted International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, Local Union No. 538, AFL-CIO, and in order
to discourage the membership in and support and assist-
ance of the Union by its other employees.
(b) Threatening its employees with surveillance and in-
terrogation concerning their sympathies for and activities
on behalf of the Union.
(c) Threatening its employees with withdrawal of
future wage increases in order to discourage them from
supporting the Union
(d) Promising its employees to implement new work
schedules and to increase the hours of each shift, in
order to discourage its employees from supporting the
Union.
(e) Implementing new work schedules of its employees
in order to discourage them from supporting the Union
(f) In any other manner interfering with, restraining,
or coercing its employees in the exercise of the rights
guaranteed them in Section 7 of the National Labor Re-
lations Act
2 Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request of the Union, bargain collectively with
it as the exclusive collective-bargaining representative of
Respondent's employees in the following unit appropri-
ate for bargaining with respect to rates of pay, wages,
hours, and other terms and conditions of employment
and, if an understanding is reached, embody such under-
standing in a signed agreement:
All employees who engaged in patient care, kitchen
and laundry work and cleaning, employed by Re-
spondent at its Kittanning, Pennsylvania facility, ex-
cluding all office clerical employees and guards,
professional a employees and supervisors as defined
in the Act.
(b) On request of the Union, rescind the unilateral
changes of new work schedules of Respondent's employ-
ees.
(c) Make whole Janet Bosco, Nancy Fabian, Jennie
Fusaro, and Candy Graff for any loss of earnings they
suffered by reason of Respondent's discrimination against
them on April 30, 1981, with interest to be computed as
described in the remedy section of this decision
(d) Remove from its. files any references to the dis-
charges of Janet Bosco, Nancy Fabian, Jennie Fusaro,
and Candy Graff on April 30, 1981, and notify them in
writing that this has been done and that evidence of
these unlawful discharges will not be used as a basis for
future personnel actions against them
(e) Preserve and, on request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this Order
(f) Post at its Kittanning, Pennsylvania place of busi-
ness copies of the attached notice marked "Appendix."39
Copies of the notice, on forms provided by the Regional
Director for Region 6, after being signed by the Re-
spondent's authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material
(g) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply
IT IS FURTHER ORDERED that the complaint be dis-
missed insofar as it alleged violations of the Act other
than those found here.
as If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al 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 "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice
WE WILL NOT discharge our employees because they
joined, supported, and assisted International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, Local Union No 538, AFL-CIO, and in order
to discourage the membership in and support and assist-
ance of the Union by our other employees
WE WILL NOT threaten our employees with surveil-
lance and interrogation concerning their sympathies for
and activities on behalf of the Union
WE WILL NOT threaten our employees with withdraw-
al of future wage increases in order to discourage them
from supporting the Union
WE WILL NOT promise our employees to implement
new work schedules and to increase the hours of each
shift, in order to discourage our employees from support-
ing the Union.
WE WILL NOT implement new work schedules of our
employees in order to discourage them from supporting
the Union.
WE WILL NOT in any other manner interfere with, re-
strain, or coerce our employees in the exercise of the
rights guaranteed them in Section 7 of the National
Labor Relations Act.
GREY'S COLONIAL BOARDING HOME 889
WE WILL, on request of the Union , bargain collective-
ly with it as the exclusive collective-bargaining repre-
sentative of our employees in the following unit found
appropriate for bargaining with respect to rates of pay,
wages, hours , and other terms and conditions of employ-
ment and, if an understanding is reached , embody such
understanding in a signed agreement
All employees who engage in patient care , kitchen
and laundry work and cleaning , employed by us at
our Kittanning , Pennsylvania facility , excluding all
office clerical employees and guards , professional
employees and supervisors as defined in the Act
WE WILL, on request of the Union , rescind the unilat-
eral changes of new work schedules of our employees.
WE WILL make whole Janet Bosco, Nancy Fabian,
Jennie Fusaro , and Candy Graff for any loss of earnings
they suffered by reason of our discrimination against
them on April 30, 1981 , with interest
WE WILL remove from our files any references to the
discharges of'Janet Bosco, Nancy Fabian, Jennie Fusaro,
and Candy Graff on April 30, 1981 , and notify them in
writing that this has been done and that evidence of
these unlawful discharges will not be used as a basis for
future personnel actions against them
KENNETH W. GREY, JR AND ADA N
GREY, D/B/A GREY'S COLONIAL ACRES
BOARDING HOME FOR THE AGED