Haven Manor Health Related Facility

National Labor Relations Board - Board Decisions

Oct 13, 1976

226 N.L.R.B. 329 (N.L.R.B. 1976)

HAVEN MANOR HEALTH RELATED FACILITY 329
Haven Manor Health Related Facility and Local 144,
Nursing Home , Hotel, Hospital and Allied Health
Services Union, SEIU, AFL-CIO and Local 1115,
Joint Board , Nursing Home and Hospital Employ-
ees Division. Cases 29-CA-4265 and 29-CA-4339
October 13, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS JENKINS
AND WALTHER
On March 9, 1976, Administrative Law Judge
Nancy M. Sherman issued the attached Decision in
this proceeding. Thereafter, Local 1115, Joint Board,
Nursing Home and Hospital Employees Division,
filed exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt her recommended Order.
Members Jenkins and Walther do not agree with
Chairman Murphy that Local 60, United Brotherhood
of Carpenters and Joiners of America, AFL-CIO, et al.
[Mechanical Handling Systems] v. N.L.R.B., 365 U.S.
651 (1961), bars our additional remedy here. In Local
60 the Board found that the Respondent Union had
violated Section 8(b)(1)(A) and (2) by maintaining
and enforcing an agreement which established
closed-shop preferential hiring conditions. There was
no evidence that the respondent unions coerced em-
ployees to join the ranks of the union or to remain
union members. As the Court stated, "No evidence
was offered to show that even a single person joined
the union with the view of obtaining work on this
project. Nor was there any evidence that any who
had voluntarily joined the union was kept from re-
signing for fear of retaliatory measures against him,"
(365 U.S. at 654). "Where no membership in the
union was shown to be influenced or compelled by
reason of any unfair practice," the Court concluded,
a reimbursement remedy is punitive since it does not
dissipate the effects of the unlawful action (365 U.S.
at 655).
In the present case, in contrast, the Respondent
Employer coerced majority membership in Local
1115. It is because of this coercion that we find un-
lawful the collective-bargaining contract which con-
tains a union-security clause requiring the mainte-
nance of union membership as a condition of em-
ployment. In view of the coercion practiced by Re-
spondent in securing majority representation for Lo-
cal 1115, it is reasonable to infer that even employees
who originally voluntarily joined that union were
coerced by the union-security clause to maintain
their membership in Local 1115. A reimbursement
remedy for such-employees therefore appears to be
necessary and proper to effectuate the policies of the
Act. Cf. Virginia Electric and Power Company v.
N.L.R.B., 319 U.S. 533 (1943). Accordingly, in addi-
tion to the remedy provided by the Administrative
Law Judge, we shall require Respondent to reim-
burse such employees for dues paid by them from,
on, and after the effective date of the contract.
In view of these significant differentiating factors,
our dissenting colleague's charge that we are "over-
ruling" the Supreme Court's holding in Carpenters is
groundless.
The cases cited in the dissent do not justify a con-
trary conclusion. Duralite Co., Inc., 132 NLRB 425
(1961); International Paper Company, 150 NLRB
1252 (1965), and Cowles Communications, Inc. and
Sufsun Co., Inc., 170 NLRB 1596 (1968), involved
situations where the employer unlawfully extended
recognition to, and contracted with, one union when
a question concerning representation existed or when
the employer was bound to extend recognition to an-
other union. In none of these, as here, was there evi-
dence that the employer had coerced employees by
threats, etc., into joining the union or that as a result
of such coercion the union had secured its majority
representation on the basis of which the employer
had contracted with the union. It is this publicized
proclivity to coerce, in addition to the unlawful con-
tract, which persuades us that employees who volun-
tarily joined the union could have been coerced into
maintaining that membership.'
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
1 Member Jenkins notes that this possibility is enhanced by the fact that
employees who joined Local 1115 before the coercive support of Respon-
dent did so at a time when Respondent was sponsoring Local 144. Their
Joining Local 1 115 at that time evidenced an opposition to a management-
sponsored union which is mconsistent with their voluntarily remaining
members after it became a management-supported union. In any event,
since the illegal union-security clause makes it impossible to know whether
they would have voluntarily remained members, any doubts resulting from
the illegal conduct should be resolved against the party responsible for it
226 NLRB No. 50
330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
orders that Respondent, Haven Manor Health Relat-
ed Facility, Far Rockaway, New York, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended. Order.
CHAIRMAN -MURPHY, dissenting in part:
My only disagreement with my colleagues relates
to the additional remedy they would provide.
I must dissent from their reversal of the Adminis-
trative Law Judge's conclusion that the Board cannot
require a dues reimbursement remedy for "employ-
ees who signed up for Local 1115, and for it alone,
before Respondent began to unlawfully assist it" be-
cause their support for the Union was achieved with=
out coercion. In my view, providing for reimburse-
ment of the dues paid by these employees after the
effective date of the contract flies in the face of the
Supreme Court's decision in Local 60, United Broth-
erhood of Carpenters v. N.L.R.B., 365 U.S. 651 (1961),
where the Court rejected a similar holding of the
Board, including the very reason given by my col-
leagues for requiring this additional remedy. As Jus-
tice Harlan pointed out in that case in his concurring
opinion, there is no "rational relationship at all be-
tween the amount of dues paid and the value an em-
ployee who is willing to join a union would place on
his freedom to change his mind."
Nevertheless, my colleagues attempt to distinguish
this case from Carpenters on the ground that Local
1115 achieved representative status through unlawful
coercion and assistance on the part of Respondent,
and thus even those who voluntarily joined it "were
coerced" by the contractual requirement of main-
taining membership in that local. But that distinc-
tion, and the questionable logic behind it, ignores the
fact that such coercive conduct as was brought to
bear on other employees to join Local 1115 occurred
after the employees in question had freely sought out
and designated that Union to represent them and
thus could not have influenced their choice. Indeed,
they signed membership cards for Local 1115 in the
face of Respondent's open and unlawful assistance
to Local 144. Furthermore, there is no evidence that
they subsequently wished to resign from 1115 or
made any effort to do so. In such circumstances, the
presumption arises that they voluntarily continued
their support for Local 1115.2 I therefore fail to see
how their situation appreciably differs from the one
involved in the Carpenters case, and I see-no-justifica-
tion (or authority) for my colleagues' overruling- the
Supreme Court's holding in that case.;
In any event, my colleagues' reliance on Virginia
Electric and Power Company v. N.L.R.B., 319 U.S.
533 (1943), is misplaced and contrary to Board prece-
dent. In Duralite Co., Inc., 132 NLRB 425 at 429
(1961), which involved an employer granting recogni-
tion to an outside union in the face of a contract with
an incumbent union, the Board refusedyto order the
reimbursement of dues for employees who had
joined the unlawfully assisted union because they,
like the employees here in question, were not coerced
into doing so. In reaching that conclusion, the Board
specifically held that Virginia Electric was inapplica-
ble because that case concerned a company-domi-
nated union whose very existence was, unlawful and
the return of dues was therefore necessary as a means
to achieve its disestablishment. Clearly then, Virginia
Electric is inapposite to the present situation, as Lo-
cal 1115 was not formed or dominated by Respon-
dent and disestablishment, therefore, would be inap-
propriate as a 'remedy.
Furthermore, in Cowles Communications, Inc., 170
NLRB 1596 (1968), and International Paper Compa-
ny, 150 NLRB 1252, 1253 (1965), both cases in which
the employers, like Respondent herein, actively ren-
dered unlawful assistance and support to unions to
enable them to achieve recognized representative sta-
tus, the Board excluded from dues reimbursement
remedies those employees who belonged to the assist-
ed unions before, any assistance occurred. Indeed, In-
ternational Paper Company appears to be directly on
point. There the employer had entered into a union-
security agreement with a union only after rendering
it assistance similar to that engaged in by Respon-
dent, and an Administrative Law Judge (nee Trial
Examiner) had recommended an all-inclusive reim-
bursement remedy. The Board, in affirming, found
that remedy too broad, stating:
The Remedy and paragraph 2(b) of the Recom-
mended Order are hereby clarified to specifical-
ly exclude Jose Palacious from this reimburse-
ment recommendation as it appears that he was
a member of the Intervenor prior to Respon-
dent's conduct herein found unlawful, and there
is no evidence that he was coerced into retaining
this membership. [Emphasis supplied.]
I see no distinction between the situation of Pala-
cious in International Paper Company and that of the
employees in this case who freely chose Local 1115
to be their designated bargaining representative.
Accordingly, I perceive no basis either in logic or
in court or Board precedent for the additional reim-
bursement remedy my colleagues would impose in
this case, and to that extent, and that extent alone, I
must dissent.3
2 Lianco Container Corporation, 173 NLRB 1444, 1449 (1969)
' In addition to the cases cited above in support of my position see Play-
skool, Inc, a Division of Milton Bradley Corporation, 195 NLRB 560, 562
(1972), and Crown Cork & Seal Company, Inc, 182 NLRB 657 (1970).
HAVEN MANOR HEALTH RELATED FACILITY 331
DECISION
STATEMENT OF THE CASE
NANCY M. SHERMAN, Administrative Law Judge: This
consolidated proceeding was heard at Brooklyn, New
York, on November 11, 12, and -13, 1975, pursuant to a
charge filed against Respondent Haven Manor Health Re-
lated Facility by Local 144, Nursing Home, Hotel, Hospi-
tal and Allied Health Services Union, SEIU, AFL-CIO
(Local 144), on March 20 , 1975, a charge filed against Re-
spondent by Local 1115 , Joint Board, Nursing Home and
Hospital Employees Division (Local 1115), on May 2,
1975, and a consolidated - complaint issued on June 26,
1975, amended on August 4, 1975, and further amended at
the hearing on November 11, 1975, pursuant to a Novem-
ber 10 oral and a November 11 written notice ` to Respon-
dent to add allegations of unfair labor practices on No-
vember 6, 1975.1 The questions presented are whether
Respondent violated the National Labor Relations Act, as
amended (the Act),' by interrogating its employees about
union activity; by threatening its employees about activity
on behalf of Local 1115; by keeping such activity under
surveillance ; by- denying employment to employee Kath-
leen Feinberg between November 1974 and January 1975,
allegedly because of her activity on behalf of Local 1115;
and by furnishing assistance to Local 144 prior to January
1975 and to Local 1115 thereafter , including the execution
with Local 1115 of a collective-bargaining agreement
which contains a union-security and a checkoff clause and
payments to Local 1115 pursuant thereto. '
At the conclusion of the hearing, oral argument was ten-
dered by^all counsel except counsel for-Despondent, who
stated that he would reserve all argument for his brief. No
briefs have been filed in this proceeding , although the Gen-
eral Counsel and counsel for Local 144 have advanced
some legal arguments in letters to me with copies to all
other parties.
Upon the entire record , including my observation of the
witnesses, and after due consideration of the oral argu-
ments and the foregoing posthearing •letters, I make the
following:
FINDINGS OF FACT
1. JURISDICTION
Respondent is a partnership or individual proprietorship
which operates a health related facility and related services
in Far Rockaway, New York. During the year preceding
the issuance of the complaint, a representative period, Re-
spondent derived from such operations gross revenues of
more than $100,000, and received goods and materials val-
ued at more than $50,000 from points outside New York. I
1 Over the objection of Local 144's counsel and counsel for the General
Counsel, a motion by Respondent 's attorney for leave to use a tape recorder
during the bearing was granted with substantially the same limitations as
those set forth in Allied Metal Hose Company, Inc, 219 NLRB _1135, 1136,
fn. 1 (1975). See Milgo Industrial, Inc-, 203 NLRB 1196, 1204, fn 2 (1973),
affd. 497 F.2d 919 (C A. 2, 1974).
find that, as Respondent concedes , it is engaged in com-
merce within the meaning of the Act, and that exercise of
jurisdiction over its , operations will effectuate the policies
of the Act.
Local 144 and Local 1115 are labor organizations within
the meaning of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Haven Manor began operations in late August 1974.
Shortly thereafter, both Local 144 representatives and Lo-
cal 1115 representatives began organizing campaigns at the
facility. When hired as a licensed practical nurse in Octo-
ber 1974, Ruth Neff, whom I find to be an employee for
the reasons stated infra, section II, E, 2 a, expressed disap-
pointment -about her wages to - Robertine Stephens, Re-
spondent's directress of nursing services , who was admit-
tedly a supervisor within the meaning of the Act. Stephens
said "to bear with her, that a union would be-coming in
soon."
B. Alleged Company Solicitation for Local 144
Administrator Aron Cytryn, who is admittedly a super-
visor within the meaning of the Act, testified that as of
January 1975 "I knew all along we were giving out [Local]
144 cards to supervisors, and . . . I felt that we . . . have
illegally given aid to a union."
In September or October 1974, Purchasing Manager
Alex Paskus, who is admittedly a supervisor , asked Local
144 Business Representative Marvin Goodman for some
Local 144 authorization cards. In Cytryn's presence, either
Goodman or Local 144 Business Representative Willie
Godwin gave some cards to Paskus. Cytryn testified, ". ' . .
as per their conversation , what I gather, I was able to un-
derstand was, there was some kind of deal arranged where
they had given some rates or some kind of salaries that
were supposed to go in effect once the deal, once they had
organized enough people . . . and Mr. Paskus said he
would give out [the cards] to supervisors , and as soon as
they would be filled out, he would turn it over to" Godwin
and Goodman. A few minutes later, Paskus gave Local 144
cards to Food Service Manager Israel Elbaz and House-
keeping Supervisor Robert Rufrano,'both of whom are ad-
mittedly supervisors , and instructed them to give out the
Local 144 cards. At this same time, Cytryn gave 30 or' 40
Local 144 cards to Rufrano, and asked Rufrano to distrib-
ute them to all the Haven Manor workers and to ask the
workers to sign them and return them to Paskus 2 Rufrano
then went to supervisor Stephens, said that Cytryn wanted
Rufrano to give out the cards to the staff , and asked her
opinion. Stephens said to do what Rufrano thought was
best.3 Rufrano then distributed the cards to the workers
? Local 144 Representative Godwin testified that he gave cards to Rufra-
no in October 1974. For demeanor reasons , I credit Rufrano 's and Cytryn's
testimony about where Rufrano obtained cards in 1974
3 My findings as to the Stephens -Rufrano conversation are based' on
Rufrano's testimony I credit Rufrano's testimony , as to the date, and discre-
Continued
332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with the statement that Cytryn gave him the cards and
asked him to have them signed, and that Cytryn wanted
them to sign the cards and return them to Rufrano- A few
workers asked Rufrano if it was all right for them to sign
the cards, and he said that they would be all right. Most of
the workers signed and returned the cards, which Rufrano
then "rushed" to Paskus a week or two later. Among these
cards was a card signed by Rufrano himself. A few em-
ployees asked Rufrano if he had returned the cards, and
Rufrano replied that he had returned them to Paskus.
While Rufrano still had some of these cards in his pos-
session , he was approached by Local 144 organizer God-
win, who asked Rufrano to sign some cards for Local 144.
Rufrano replied that he had some filled-out cards but
could not give them to Godwin because he had to turn
them in to "the office." At Godwin's request, Rufrano let
him look at them and write down the names thereon.
Also in October 1974, outside the Haven Manor prem-
ises, Local 144 Representative Godwin asked employee
Jose Rivera to sign a Local 144 card. When Rivera did so,
Godwin gave him some blank cards, said that Rufrano was
already handmg out Local 144 cards inside Haven Manor,
and told Rivera to get in touch with Rufrano. Rivera said
that he would. When Rivera talked to Rufrano, he told
Rivera to give Local 144 cards to the employees who had
not yet received them. Rivera gave out cards to employees,
and may have also signed another one himself. Rivera gave
some cards to Rufrano, who gave some back to him, but
the record fails to show which, if any, were signed. In Octo-
ber 1974, Supervisor Cytryn asked Rivera whether he was
involved with Local 144. Rivera untruthfully gave Cytryn
his "word" that Rivera was "out." Rivera credibly testified
that he said this to Cytryn because Rivera was afraid he
would lose'his job if he admitted his Local 144 activity.
About the same time, Rufrano gave a Local 144 applica-
tion to employee Neff and told her that she should sign it.
When she said that she did not want to sign, he said that
she "had better sign it because that's the union that man-
agement wants." Neff did not take the card. She told him
she would sign an application for whatever union came
into the facility.
Also about this same time, Neff telephoned Local 1115,
said that she understood Local 1115 was trying to become
the union at Haven Manor, and offered to help. Thereaf-
ter, Local 1115 mailed her about 25 application cards. Neff
then asked Supervisor Stephens whether it would be all
right if she distributed Local 1115 applications. Stephens
replied that if she did, she would lose her job. Accordingly,
Neff made no immediate effort to distribute these cards 4
In November 1974, when Neff was talking to Local 1115
representative Morales outside the building, Cytryn looked
out the window, pointed to them, and said to Stephens,
"Look at who Mrs. Neff is talking to." Stephens comment-
ed ". '.. she has the right to talk to who she wants." On the
dit Stephens' testimony that the conversation occurred in early January
1975, in view of their mutually corroborative testimony that Rufrano said
the cards had been given him by Cytryn, who gave such cards to Rufrano
about October 1974 but not in January 1975. I credit his testimony as to the
contents of the conversation in view of the witnesses' demeanor.
4 As related infra, she did distribute these cards in January 1975, after
Stephens told her to do so.
following day, Stephens told Neff that Cytryn had seen her
talking to Morales; Cytryn had come running to her office
and said ". . . do you see who she's talking to?"; Stephens
had said yes; Cytryn had said, ". . . well, what is she doing
with him?"; and Stephens had said, "... well, she knows
the man, she could talk to him."
About mid-November, Supervisor Rufrano asked em-
ployees Jose Rivera, Thomas Handy, and Walter Vernon,
and an employee identified in the record as. "the cook," to
sign Local 144 cards. Vernon and Rivera signed. Handy
accepted a card, but did not sign. Shortly thereafter, Super-
visor Elbaz approached Handy, on Haven Manor premises
but outside Handy's working hours, and told him to fill out
the card and sign it. In Elbaz' presence, Mrs. Handy (who
was also present) filled out the card and Handy signed it.
Handy then returned it to Elbaz. Handy, had previously
failed to sign a card given him by_a Local 144 representa-
tive.
The Local 144 cards given to Rufrano by Cytryn were
too few to accommodate all of Respondent's employees. In
November or December 1974, Supervisor Paskus ap-
proached Local 144 Organizer Godwin and said, "I know
that you are an organizer for 144 and I know that Robert
Rufrano. is working with you, and he is out of cards, and I
would like to see that he gets some ." Godwin asked Paskus
why he was interested. Paskus replied, "I want to see to it
that he gets the cards because I know factually that he is
your internal man." Godwin gave Paskus some blank
cards.
Thereafter, Godwin reported this -incident to Goodman,
who was a more experienced Local 144 organizer than
Godwin. Goodman and Godwin' s superiors berated him
for giving the cards to Paskus. Thereafter, ,Godwin asked
Paskus to return the cards to him. Paskus said that he
would not give them to anyone but Local 144 Director
Clarence Morgan, Godwin's superior. Morgan then tele-
phoned Paskus and asked him to return the cards. Paskus
said that he had wanted Morgan to come there and talk to
him "because he wanted to talk about a deal." Morgan
said, ". . . there is no deal to be made on any occasion."
Paskus never returned these cards.
About December 1974, Rufrano asked Godwin for some
Local 144 cards so Rufrano could distribute them to the
Haven Manor staff and return them to Local 144 without
Cytryn's knowledge.' Thereafter, Rufrano asked Sandra
Yates, a licensed practical nurse on the 11 p.m.-7 a.m.
shift,' to get the people on her shift together within a cou-
ple of days so Rufrano could bring up some cards from
Local 144 and have them signed. On January 8, Yates
"asked" her entire staff "if they were interested -to hear
anything about 144, to come to the second floor day
room." All of them came, during their duty hours. Rufrano
S In early December 1974, Housekeeping Supervisor Rufrano and his 3 to
5 subordinates were transferred to the payroll of First National Mainte-
nance. Rufrano continued to perform the same duties and continued to be
known among the employees as the housekeeping supervisor . While the
General Counsel disclaimed any contention that First National Mainte-
nance occupies smgle-employer status with Respondent , Respondent's
counsel expressly adhered on the record to the admission in Respondent's
answer that Rufrano had been Respondent's agent and supervisor at all
material times
6 Yates' duties are described infra, fn. 38.
HAVEN MANOR HEALTH RELATED FACILITY
asked them to meet with him so he could bring up some
Local 144 cards for their signatures . A nurses aide wanted
Rufrano to be checked out, with Local 144 Business Agent
Godwin before she signed a card. One of the employees
asked if Rufrano had given out cards before. He replied
that he had given them out and Godwin never received
them, so Rufrano was giving out some new ones. None of
the employees accepted a card from Rufrano that night.
On the following day, Rufrano gave Local 144 cards to all
of them, about 6 in number, and all of them signed. Rufra-
no obtained employee signatures on about 30 of the cards
given him by Godwin, and returned them to Godwin about
3 weeks . after they were signed.
In early January 1975, Local 144 petitioned the Board
for an election. The record fails to show the disposition of
this petition.
C. The Denial of Employment of Kathleen Feinberg,
Allegedly for Local 1115 Activity
Kathleen Feinberg began to work for Respondent in late
August 1974 as a nurses aide. Administrator Cytryn testi-
fied, "I thought of her as a pretty good aide all along, and
... we at the Facility were satisfied with her."
In September 1974, Feinberg signed and mailed to Local
144 a Local 144 card which she had picked up from a stack
of such cards on the desk at the second-floor nursing sta-
tion. Inlate October 1974, Local 1115 Representative Mo-
rales approached her outside the building and asked her to
give out Local 1115 cards, ask people to sign them, and
return them to him. She said she would, and he gave her
about 10 cards. In the course of the day, she asked others
to sign, but they refused because "if we signed for two
unions, they're afraid there would be conflict and we'd be
without a union." Feinberg then threw away the cards.
A day or two later, Supervisor Stephens told Feinberg
that several employees had been asking her opinion about
which union to join . Stephens said that since she was a
supervisor, she really could not give this information, but
she had been a member and thought highly of Local 1115,
and Feinberg could contact Hy Juvall if she wanted to
obtain more information and Local 1115 cards. Feinberg
never contacted Juvall, of whom she had never previously
heard. At this same time, the staff on Feinberg's shift met
in the staff dining room and decided that they wanted Lo-
cal 1115. A day or so later, Feinberg approached Morales
outside the building,',told him that there were staff mem-
bers who were interested in joining Local 1115, and asked
for some more membership cards, which she said she
would try to get signed. Morales gave her some more cards.
Thereafter, Feinberg signed a card and gave out about 10
Local 1115 cards, which were signed and returned to her
by members of the nursing staff (other than registered
nurses) and of the kitchen staff. She also gave several blank
cards to orderly Kevin Pruitt, who obtained signatures
thereon and returned the signed cards to Feinberg. Outside
of Haven Manor, Feinberg returned these cards to Local
1115 Representative Jim Tracy, who gave her some more
cards. Feinberg obtained employee signatures on these
cards also.
The last week in October, during working hours, Fein-
333
berg approached Supervisor Rufrano, who had been soli-
citing signatures on Local 144 cards, and asked hum to sign
a Local 1115 card. Rufrano took a Local 1115 card but did
not sign it. About the end of October, during working
hours, Administrator Cytryn approached Feinberg and
asked her if she had signed a Local 1115 card. She said that
she had. Cytryn asked who was giving out Local 1115
cards, and who the organizer was. Feinberg replied that
there was no organizer , and that several people were hand-
ing out the cards. Cytryn said that he did not believe that
there was no organizer, that "it was- running too smoothly
for people to just be handing out cards among themselves."
Feinberg replied that so far as she knew, there was no spe-
cial organizer. Cytryn said that if she found out who was
organizing for Local 1115, would she please give him that
information. He further said that he "did not want people
sneaking behind his back handing out cards . . . he didn't
care which union people signed up for, they could sign up
for any union they wanted but half signed for 1115 and
half signed for 144 and nobody was going to suffer but [the
employees], because it would be tied up in Court and [they]
would be out of a union, but he, personally, felt that 144
was the better union." He further said that he did not care
whether a union came in at all.
About this same time, Cytryn told Stephens that Pruitt
(who is not named in the complaint) and Feinberg had
been giving out Local 1115 cards, that there had been
"complaints" about both of them, and that they were to be
suspended. He further stated that Feinberg was to be sus-
pended for 4 weeks. He stated that the "complaints" about
Feinberg were that her "attitude had changed and she
wasn't performing the same way as before." Stephens had
never heard, about any such "complaints" before, although
residents ' families usually make their complaints to the
nursing directress or the administrator. Nor had Feinberg
ever been reprimanded for any reason. Cytryn also told
Stephens to direct Feinberg to hand the cards to Stephens
so that she could give them to Cytryn.1 Thereafter, Ste-
phens telephoned Feinberg at home and told her that Cy-
tryn had said Feinberg was to be terminated unless she
gave him all the signed cards for Local 1115 .8 That af-
ternoon, Feinberg gave her the signed cards which Fein-
berg had not already given to Local 1115.
On November 14 or 15 (infra, fn. 11), Cytryn directed
Stephens to draw up a notice suspending Feinberg for 1
month for insubordination or misconduct .9 Thereupon,
that same day, Stephens drew up, and arranged to have
typed over her and Cytryn's typewritten signatures, a no-
tice dated November 15, 1974, stating that Feinberg "is
suspended from work for one month starting 11-15-74
7 My findings as to this Cytryn-Stephens conversation are based on Ste-
phens' testimony . Cytryn merely testified that he told Stephens to suspend
Feinberg for 4 weeks
8 This finding is based on Feinberg's testimony . For demeanor reasons, I
credit such testimony rather than Stephens ' testimony that she merely told
Feinberg to turn the cards back in to Stephens so she could give them to
Cytryn
9 This finding is based on Stephens' testimony. Stephens testified that
Cytryn told her that on one occasion Feinberg had failed to acknowledge
his presence on the floor, but Stephens was not sure whether he told her that
his suspension decision was based on this alleged incident
334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
due to her change in attitude towards her work responsibil-
ity. Her employment will be reinstated December 14,
1974." Later that same day, Stephens called. Feinberg to
the office, read her this typewritten notice, gave her a copy
signed by Stephens and Cytryn,10 and told her that there
had been a "slack" in her work and Cytryn wanted her
suspended-for 30 days." Feinberg _said.that she could not
understand "where they could have gotten that informa-
tion that there was a slack in my'work. Stephens said that
she was sorry, it was not her idea, that Cytryn wanted her
suspended.12' Feinberg then asked if Stephens' would ask
Cytryn to postpone the beginning, of the suspension until
December 1, because she was-going to'move on December
1, needed all the money she could get up to that'point, and
thereafter could use the time off to get her house orga-
nized . Feinberg also asked Stephens for an interview with
Cytryn, who was then in his office. Steps hens called his
office and then said he was not available. 3
The Feinbergs had been planning to buy a house, but
they never did so and she never did move. Several times
during Feinberg's suspension, she telephoned Cytryn's of-
fice to ask him why he thought there was a slack in her
work, but she was never put through to Cytryn. About 30
days after her suspension, Feinberg telephoned Stephens to
find out -the exact date when Feinberg was supposed to
report back for work. Stephens replied that it was her un-
derstanding that Feinberg was not returning to work, and
said that she had been "terminated." Feinberg asked why
she had been terminated. Stephens replied that Cytryn had
told her that Feinberg was not coming back after the sus-
pension.
A day or two later, Feinberg went to Haven Manor and
talked to Cytryn and Paskus. Feinberg told Cytryn that she
thought she had been suspended for handing out Local
1115 cards, that she thought the suspension was unfair,
that she had nonetheless taken it, but that "no way" would
she settle to be terminated. Cytryn replied that the suspen-
sion and termination were completely Stephens' idea. Fein-
berg said that the only reason she had started handing out
Local 1115 cards was that Stephens had called her and told
her it would be all right. Cytryn then said that he would
have ajob for Feinberg within the next couple of weeks; he
was doing her a favor by taking her back; that when she
came back, "he didn't want any more hanky-panky"; if he
could not put her back at Haven Manor, he would find her
a job elsewhere ; but he did not want her "to pull the same
10 Stephens and to some extent Cytryn testified without denial that the
copy given to, Feinberg, which is not in evidence , was signed by both Ste-
phens and Cytryn. For reasons unexplained in the record , Respondent's file
cop' of this notice is signed by Stephens alone
As to the date of this conversation, Feinberg testified that Stephens
"told me I was being suspended . The next day, I was suspended ." Together
with her testimony in this respect , the language in the notice that she "is
suspended from work for one month starting 11-15-74 [to be] reinstated
December 14" indicates that this Stephens -Feinberg conversation occurred
on November 14, and that it did not occur on November 15, when both the
notice and Mrs. Stephens' notation - on Respondent's file copy (see infra, Sec
II, E, I, b) are dated . The date on which the suspension became effective
can be determined in compliance proceedings
12 Up to this point , my findings as to this conversation are based on a
composite of Stephens' and Feinberg's mutually corroborative testimony
13 My findings in these three sentences are based on Feinberg 's testimony.
For reasons summarized infra, I do not believe Stephens ' implicit denials
nonsense" over there. Feinberg was called back to' Haven
Manor about January 7, 19751;and was working there as a
nurses aide at the time of the hearing -in November 1975,14
On November 6; 1975, 5 days before the hearing, Cytryn
called Feinberg to his office and asked her to sign a state-
ment that her suspension had nothing to do with handing
out cards for Local 1115. Feinberg-'refused to sign it on the
ground that she believed it to be untrue, and explained her
reasons for this belief . Cytryn then said, "... wasn't there
a'matter of,[his] seeing [her] reading on the second floor?"
Feinberg replied that she did not have a book, and -that she
had spoken to him about the incident and he told her to
forget it. Cytryn then asked her to drop- the charges as a
favor to Haven Manor and a personal favor to Cytryn,
who said that he had done favors for her. Feinberg did not
agree to sign the statement, and left the floor shortly there-
after.
D. Alleged Support to Local 1115
1. Alleged solicitation for Local 1115
By letter received by Respondent on January 18, 1975,
Local 144, alleged that it represented Respondent's "Li-
censed Practical Nurses and non-professional' employees"
and asked for an early meeting at which Local' 144 could
assertedly demonstrate its representation through- a card
count.15 Cytryn testified that he ignored this' letter because
the facility had already rendered illegal aid to Local 144
and he did not want to get further involved with it.
In mid=January 1975, during working hours,' Supervisor
Elbaz told kitchen aide Handy, in Elbaz''office, that he
knew Handy had-filled out "the other card for the, other
union , but I want you to fill this card out, and, don't let
anybody see it`... because this is the union they want in
... because you'll be seeing a lot of people going out of
here." Elbai gave Handy a "Local 1115 card, which Handy
signed and returned to Elbaz. Elbaz told Handy not to say
anything outside the office about the incident.16 About 10
minutes later, Handy returned to the office and asked El-
baz, ".., . what's my chances of staying?" Elbaz said, ".. .
you don't have to worry about it, because you'd be the last
one that I'd fire, that I'd let go." 11 Elbaz also approached
six or"seven other kitchen employees, including Jose Riv-
14 In the summer of, 1975, she requested and received a 3-month leave of
absence 'because of babysitfmg problems owing to her husband' s business
triis
s Local 144 Representative Goodman testified that when this letter was
sent out, Local 144 had 80 to 85 cards and he believed the unit consisted of
about 90 people. The unit actually consisted of about 60 employees, exclud-
ing the recently contracted-out 5-employee housekeeping operation, but
during this period there was an undisclosed amount of employee turnover at
the facility
16 Handy credibly testified that he did not tell any of his coworkers about
the incident, but "About an hour later , everybody - . was knowing about
it, because he had everybody in the office
17 Handy credibly testified that he signed the Local 1115 card in January
1975 because he thought that otherwise he-would be fired, " What else are
you going to think if he tells you you're going to see a lot of people going
out of here" Handy further, credibly, testified that in mid=October 1974 he,
"the cook," and, Jose Rivera signed LocaL1115, cards a t the request of a
Local 1115 representative While these October 1974 conversations occurred
on Respondent's premises during working hours , there is no evidence that
Respondent was aware of the Local 1115 representative 's presence
HAVEN MANOR HEALTH RELATED FACILITY 335
era, Walter Vernon, and Linda Rivera, and asked them to
sign Local- 1115 authorization cards. Jose Rivera credibly
testified that he signed such a card at Elbaz' request. 8
Handy credibly testified without objection that all of these
employees initially told him that they thought that signing
the cards was the "wrong thing to do," but later told him
that they had signed.
As previously noted, in October 1974 employee Neff had
asked Supervisor Stephens if it would be all right if Neff
distributed Local 1115 authorization cards. At that time,
Stephens told Neff that she would be discharged if she did
this. On January 22, 1975, Supervisor Cytryn telephoned
Stephens and told her that he wanted Local 1115 cards to
be given out to employees. Stephens replied that she could
not do this, and Cytryn asked who could. Stephens said
that she thought Neff had cards and could do this. Ste-
phens then telephoned Neff while she was on duty, and
asked whether she still had the Local 1115 application
blanks. Neff replied that she did, and Stephens called her
to the nursing office . While waiting for Neff, Stephens re-
lated her conversation with Cytryn to Registered Nurse
Whitbecker.19 When Neff arrived, Stephens related to her
what Cytryn had said, and Neff agreed to give out Local
1115 applications. Stephens then returned to her duty sta-
tion. A while later, Cytryn telephoned to ask whether the
cards were being given out. Stephens replied that at that
time they were not, because they were at Neff's house. Cy-
tryn told Stephens to ask Neff to go home and get the
cards so they could be given out then. Stephens thereupon
telephoned Neff and told her to go home immediately to
get the Local 1115 applications, and to have them signed as
soon as possible that day, that Cytryn wanted them signed.
At that time, Neff's work shift had 3 or 4 more hours to go.
She went home immediately, got the Local 1115 applica-
tion cards, and returned to Haven Manor, an errand which
took about 30 minutes. No deductions for this half-hour
period were made from her pay. While continuing her du-
ties, she solicited signatures on the cards from other li-
censed practical nurses, the nurses aides, and the orderlies
on her own 7 a.m.-3 p.m. shift, and some of such employ-
ees on the 3 p.m.-11 p.m. shift. In the course of the day,
Neff reported to Stephens that many of the employees
were reluctant to sign cards 20 Thereafter, Cytryn tele-
phoned Stephens and asked whether the cards were being
18 Jose Rivera further testified that, on this occasion in January 1975,
Elbaz told him to sign the card "or else [he'd] be going out" or "fired "
Rivera's testimony in this respect is indirectly corroborated by Handy's
undented and credible testimony regarding Elbaz' activities during this peri-
od Moreover, although still in Respondent 's employ at the time of the
hearing, Elbaz did not testify , nor was his absence explained
However, although impressing me as an honest witness, Rivera was ex-
ceedingly nervous and confused on the witness stand . He testified that in
October 1974 , when other evidence shows that management was urging him
and other employees to sign Local 144 cards, Elbaz told him to sign a card
for "Local 115" (sic) or he would be "fired" (Rivera's initial version or
"else" (Rivera's second version). Accordingly , I do not base any unfair
labor practice finding on his testimony regarding threats made to him by
Elbaz In any event, such a finding would not affect the conclusions and
order herein.
19 Stephens testified that Whitbecker was "supervisor" on 'the 7 a m.-3
p.m. shift Neff testified that Whitbecker was her supervisor and had the job
title of "supervisor." There is no other evidence about Whitbecker's duties
20 However, Neff did not testify that this was true
given out. She replied that they were, and also relayed
Neff's report about the employees' alleged reluctance to
sign. Cytryn told Stephens to tell Neff to instruct them that
if they did not sign, they would be replaced. Stephens
thereupon put the telephone on "hold"-and had Neff pick
up the telephone and talk to Cytryn directly. There is no
direct evidence as to the contents of this Neff-Cytryn-con-
versation, but Stephens testified without objection that
Neff told her that Cytryn had told Neff to instruct the
employees that if they did not sign, they would be re-
placed 21
Later that day, Stephens told the nursing staff on the 7
a.m.-3 p.m. shift, including Whitbecker, that Cytryn had
said that if they did not sign Local 1115 cards they would
be replaced. There is no evidence that Whitbecker or Neff
relayed this message to anyone. Whitbecker did not testify.
Neff testified that without representing herself to be a su-
pervisor or an ally of management, she told the employees
about what Local 1115 had done for her when she was
employed elsewhere and what she had seen Local 1115 do
for her, "preached 1115," and. tried to "sell" it. Neff ob-
tained signatures on all the cards she had. A few of -the
signers indicated that they had already signed Local 1115
cards. Later that day, after thus using up all the cards
(about 25 in number), she telephoned Local 1115 and
asked for more cards as soon as possible. Local 1115 repre-
sentatives brought her about 15 more cards that same day.
Also that same day, Stephens told-the nursing staff on
the 3 p.m.-11 p.m. shift, including Registered Nurse Geral-
dine White,22 that Cytryn had said that if they did not sign
Local 1115 cards they would be replaced. That evening,
after Neff's shift had ended, she returned to Haven Manor,
where the 3 p.m.-11 p.m. shift was then on duty. She gave
a Local 1115 card to White and said why Neff thought it
was good. White signed. Neff also gave cards to others on
that shift, who likewise signed. In addition, Neff left some
blank cards with White and with employee Smalls, a nurses
aide, and asked them to give these cards to employees on
that shift and on the 11 p.m. -7 a.m. shift. They said that
they would. Neff asked them to leave the signed applica-
tions in the medication room and said that she would pick
them up the next morning when she came on duty.
As the 11 p.m. -7 a.m. shift employees approached the
facility that night, they encountered Local 144 representa-
tives outside the building. These representatives said; ".. .
don't let anybody force you to sign for any union, you have
a choice of union, you know, no matter what -they tell
you." When the night-shift employees entered the building,
nurses aides on the previous shift told them that Cytryn
was in the building and had said that -they "were going to
have to sign for Local 1115, or [they] would be replaced by
the next day." The aides further said that they had signed
because they were told that they were going to be replaced,
"So . . . you might as well sign."
Upon reaching the second floor, employee Jacqueline
Bascom, a nurses aide on the night shift, asked Registered
21 My findings in this paragraph are based on the testimony of Neff and
Stephens, which is in general mutually corroborative. To the extent that
their testimony differs , I credit Stephens for demeanor reasons Wliitbecker
did not testify Cytryn was not asked about this incident
22 White's duties are described infra, In 37.
336 DECISIONS OF NATIONAL LABOR RELATIONS' BOARD
Nurse White, who worked on the preceding shift, whether
Cytryn had said that the employees would be replaced if
they did not sign Local 1115 cards. White replied that it
was true. White then brought a stack of-blank Local 1115
cards from the medication room, and told Licensed Practi-
cal Nurse Yates," who was to relieve White, to leave the
signed cards locked up in that room. Bascom looked at
Yates, who said that she was going to telephone Supervisor
Stephens, and did so in the presence of Bascom and White.
Yates told Stephens that White had told the employees that
they were to sign the cards, or they would be replaced the
following day. Stephens said that "she had heard that was
the same thing they said Mr. Cytryn stated, if we did not
sign the cards, we would be replaced the following day
.... It was up to us, if we signed the cards, we had a job.
If we didn't sign the cards, we did not have a job." Yates
hung up with a gesture of disgust and relayed Stephens'
version of Cytryn's remarks to Bascom, who then signed a
Local 1115 card, and White. I believe Bascom's testimony
that this statement led her to sign a Local 1115 card at that
time, but I note that she had also signed one previously.
Yates also relayed Stephens' version of Cytryn's remarks to
the rest of the night shift, all of whom then signed Local
1115 cards. In accordance with White's and Stephens' in-
structions, Yates put these cards in the locked medication
room.24
On the following morning, when reporting to work on
the 7 a.m.-3 p.m. shift, Neff found about 10 Local 1115
applications, signed by employees on the two preceding
shifts, in the medication room. Neff called Local 1115 Rep-
resentative Tracy and said that she was pretty sure she had
all the nursing staff's signed applications and he could pick
them up from her whenever he wanted to. Tracy said that
he would pick them up after she had finished work. There-
after, Neff handed out Local 1115 cards to employees who
had been absent the previous day.
When Neff left Haven Manor at the 3 p.m. conclusion of
her shift that afternoon, January 23, she met Local 1115
Representative Tracy and gave him the signed Local 1115
applications which she had accumulated. Tracy and Neff
checked these applications against what Tracy said was a
list of employees from Haven Manor. Tracy said that more
than half the employees had signed applications, and that
he was going back to Haven Manor to present the applica-
tions and see Cytryn.
2. The recognition of and the contract with Local 1115
Late in the afternoon of January 23, 1975, Cytryn called
a staff meeting in the employees' dining room. This meet-
mg was attended by 30 to 40 employees, some of whom
worked on shifts which were not on duty at the time. Cy-
tryn said that he had received a letter from Local 144,
saying that it was going to come in and represent the peo-
23 Yates' duties are described infra, in. 38
24
My findings in this paragraph are based on the mutually corroborative
testimony of Stephens and Bascom , and on portions of Yates' testimony not
inconsistent with theirs. For demeanor reasons , and because Stephens cor-
roborated Bascom's and contradicted Yates' testimony regarding the hour
of the Stephens-Yates telephone call, I regard Bascom as a more reliable
witness than Yates White did not testify
ple. Cytryn further said that Local 1115 was going to be
coming in, for a card count, and that if a majority of the
employees had signed cards for Local 1115, it was going to
represent them. In addition, Cytryn said -that it was he and
not Stephens who had initiated the statement that employ-
ees would be replaced if they did not sign Local 1115 cards,
that he had made this statement because he had been
"pressured by 144," and that he could not tell the staff who
should or. should not sign union cards 25
Immediately after the meeting was adjourned, Local
1115 Representative Tracy entered the room with signed
Local 1115 authorization cards. In the presence of Tracy,
Local 1115 Representatives Alex DeLaurentis and Juvall,
Administrator Cytryn, Nursing Directress Stephens, and
Company Bookkeeper Schackner, Arbitrator Herbert Le
Grange compared the cards with a list of employees then
working at Haven Manor. No Local 144 representative was
present, nor had Local 144 been asked to participate in the
card check. At the conclusion of the card check, it was
announced that a majority of employees had signed up for
Local 1115, and it would represent the employees. Le
Grange, DeLaurentis, and Cytryn signed a statement "58
cards counted out of a total of 60 employees."26 The other
persons present were asked to sign this statement, and
about 22 of them did so. The employees then formed a
Local 1115 negotiating committee.
About January 27, 1975, Respondent and Local 1115
executed, a collective-bargaining agreement whereunder
Respondent recognized Local 1115 as the collective-bar-
gaining representative of Respondent's employees.27 The
agreement contained, inter alia, provisions which required
membership in good standing in Local 1115 as a condition
of employment and tenure of 'employment. Since that date,
Respondent has maintained and enforced this agreement,
including the union-security provisions, and has deducted
sums of money from its employees' wages as union dues
and other union obligations,', and paid the same over to
Local 1115; pursuant to checkoff authorizations signed by
them. Also on January 27, 1975, Arbitrator Le Grange exe-
cuted an affidavit, received in evidence without limitation
or objection, stating that 61 people were in the unit; he had
compared the signatures on 'designation cards submitted
by Local 1115 with the signatures on W-4 forms provided
by Respondent; where W-4 forms were not available, the
individual employees personally acknowledged their signa-
tures; and 58 designation cards, all of recent date, had
been counted in the overall unit. The' affidavit sets forth a
finding by Le Grange that by virtue of such designations,
Local 1115 is the exclusive bargaining representative of the
employees in the unit 28
25 My findings about Cytryn's remarks at the meeting are based on a
composite of Feinberg's and Stephens' testimony . My finding as to its hour
is based on the testimony of Feinberg , who evinced a better recollection
about the meeting than did Stephens
26 The specified unit was "all employees excluding Registered Nurses,
Supervisors, watchmen and guards as defined in the National Labor Rela-
tions Act as amended "
27 Excluded from the unit were registered nurses, confidential, office and
clerical employees , housekeeping and maintenance employees , recreational
em,?loyees, watchmen, guards , and supervisors.
The specified unit is "all employees employed at . . the facility oper-
ated by the Employer , except Registered Nurses, housekeeping employees,
HAVEN MANOR HEALTH RELATED FACILITY 337
E. Analysis and Conclusions
1. Respondent's conduct favoring Local 144
a. Conduct other than the alleged discrimination against
Feinberg
In agreement with the General Counsel, I find that Re-
spondent interfered with, restrained, and coerced its em-
ployees in the exercise of their Section 7 rights, in violation
of Section 8(a)(1) of the Act; and rendered unlawful assis-
tance and support to Local 144, in violation of Section
8(a)(2) of the Act, when (1) Supervisors Rufrano and Elbaz
solicited employees to sign Local 144 cards (many of which
these supervisors had obtained from Supervisors Cytryn
and Paskus with instructions to obtain employee signatures
thereon); 29 (2) Supervisor Rufrano gave blank Local 144
cards to employee Rivera and told him to obtain employee
signatures thereon; (3) Supervisor Stephens told employee
Neff that she would be discharged if she passed out cards
for Local 144's competitor, Local 1115; (4) Supervisor Cy-
tryn asked employee Feinberg whether she had signed a
Local 1115 card, who was giving out Local 1115 cards, and
who the organizer was, and asked her to tell him who was
organizing for Local 1115 if she found out; (5) Supervisor
Stephens, at Cytryn's direction, told Feinberg to give Ste-
phens the signed Local 1115 cards Feinberg had collected,
so Stephens could give them to Cytryn; and (6) Stephens
told Feinberg that she would be terminated unless she
complied with this direction. In finding a statutory viola-
tion based on Cytryn's interrogation of Feinberg about
whether she had signed a Local 1115 card, and the identity
of the Local 1115 organizer and of the employees who were
passing out such cards, I note that Respondent was seeking
information useful for discrimination; Respondent later
suspended and terminated Feinberg for her Local 1115 ac-
tivity; at the end of the interrogation interview Cytryn ex-
pressed preference for a rival union; and no legitimate pur-
pose appears for this interrogation.
However, I do not agree with the General' Counsel that
unlawful surveillance is, shown by the November 1974 inci-
dent where Cytryn drew Supervisor Stephens' attention to
employee Neff and Local 1115 Representative Morales as
they were conversing outside the plant 3° I see no basis for
inferring that Cytryn saw this incident because of a delib-
erate effort to find out about the employees' union activi-
ty 31
office clerical employees , confidential employees , guards, watchmen and
supervisors as defined in the National Labor Relations Act as amended."
9 In view of the active participation of an admitted supervisor and agent,
Rufrano, in almost every aspect of the January 8-9 night-shift solicitation of
signatures on Local 144 cards, I find it unnecessary to pass on the
complaint's allegation, denied in the answer, that Licensed Practical Nurse
Yates acted as Respondent's agent during such solicitation.
30 Although there is no direct evidence that Cytryn knew Morales to be a
Local 1115 representative, such knowledge is suggested by his comment to
Stephens, "Look at who Mrs Neff is talking to."
In connection with Supervisor Stephens' report to employee Neff about
this incident, I note that the complaint fails to allege that Respondent gave
its employees the impression of surveillance
b. The -alleged discrimination against Feinberg because of
her Local 1115 activity
(1) Evidence bearing on Respondent's explanation for its
action with respect to Feinberg
Administrator Cytryn testified that he ordered that Fein-
berg be suspended for 1 month because, on the day before
she was advised of her suspension, he had seen her reading
a book or (more likely) a magazine at her desk at the nurs-
es' station during working hours, and she continued to di-
rect her entire attention to the magazine during the next 7
to 10 minutes while Cytryn was making his rounds on her
floor. Cytryn testified that he regarded this conduct as a
serious offense because she was at that time the only aide
on the floor, which accommodated 46 or 47 patients, and
hence the only person available to respond to calls from
patients' families who were visiting them. Feinberg testified
that unless she or the charge nurse were making rounds, a
patient had to get in touch with her by using a bell in his
room or (if he was physically unable to use the bell) by
sending another patient.32 Feinberg further testified that
about 2 or 3 weeks before her suspension, Cytryn saw her
while she was sitting in a chair in the hall at a nursing
station for 5 minutes, during a period other than her sched-
uled breaktime and when nobody else was on the floor. She
testified that she was not reading a book during this period,
that nurses aides (whose work requires a great deal of
standing and walking) frequently rest their feet for short
periods when they have no immediate tasks to perform,
without any objection by management; and that Cytryn
said nothing to her when he saw her sitting there. Feinberg
further testified that she later apologized for not standing
up, as a matter of courtesy, when he came on the floor, and
he told her to "forget it." Feinberg's testimony in this re-
spect is to some extent corroborated by her undenied testi-
mony regarding her conversation with Cytryn on Novem-
ber 6, 1975, a few days before the hearing,33 and by
Stephens' testimony summarized supra, In. 9. Because Cy-
tryn did not deny this November 1975 conversation with
Feinberg; because the considerations which rendered ob-
jectionable the conduct testified to by Cytryn make im-
probable his testimony that he said nothing to her during
the 7 to 10 minutes he allegedly observed it, even when he
was preparing to leave; 34 and in view of the witnesses'
demeanor, I credit Feinberg's version of the date and
events of this incident.
Cytryn further testified that Feinberg was not rehired
after the conclusion of her 1-month suspension because
Stephens had told him that Feinberg "had told her that she
was going to be moving to some location where she
wouldn't be able to come back to work anyway, and there-
32 Most of the patients at the facility are fully ambulatory
33 "He said, wasn't there a matter of seeing you reading on the second
floor . . I told him that I did not have a book, and that I had spoken to
him about the incident, and he told me to forget it "
34 When I asked Cytryn whether she was still reading when he left the
floor, he replied, "No, as I left, after a few rounds I made, she finally closed
it"
338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fore she would just ask me whether, since they needed the
money for moving, whether instead of being suspended
now, to be suspended in two weeks from now, rather at this
time, and I denied it." Stephens testified (contrary to Fein-
berg) that Feinberg had made such representations to her,
and corroborated Cytryn's testimony about Stephens' rep-
resentations to him. Respondent's file copy of Feinberg's
suspension notice contains the entry, in Stephens' hand-
writing and signed by her: "On Nov. 15, 1975 Mrs. Fein-
berg stated to Mrs. Stephens . . . that she plans to move in
two weeks, therefore she would not be returning to work,
but could she work for those 2 weeks-This request was
refused."
I do not credit the ,foregoing testimony of Cytryn and
Stephens. In the first place, if Stephens had really told Cy-
tryn that Feinberg was about to move out of the commut-
ing area and Cytryn had really failed to call her back for
that reason, -Cytryn's natural response would have been to
relate these matters to Feinberg when she asked him why
she had not been recalled. However, it is undenied that
Cytryn replied, instead, that the suspension and the termi-
nation were `Stephens' idea, which representations were
untrue according to the testimony of both Cytryn and
Stephens. Furthermore, the handwritten entry on
Respondent's file copy of Feinberg's suspension notice
states that her request that she. be allowed to work for 2
weeks "was refused," bears the same date as the suspension
notice, and was prepared (according to Stephens) immedi-
ately after Feinberg had left Stephens' office to go to
Cytryn's office. However, the date of this entry cannot be
reconciled with Cytryn's testimony that he denied this re-
quest 2 or 3 days after Feinberg's suspension, the alleged
timing of this entry's preparation (before Feinberg could
have talked to Cytryn) cannot be reconciled with Cytryn's
testimony that it was he who denied the request, and the
nature of the request as set forth in Stephens' entry and in
her and Cytryn's testimony renders rather improbable
Cytryn's testimony that Stephens did not relay it to him for
2 or 3 days, after the suspension had already begun. Fur-
ther, although Feinberg testified that during the suspension
interview she asked Stephens for an interview with Cytryn
and she said he was not available, and Stephens thereafter
testified that at the end of the interview Feinberg went to
Cytryn's'office, neither Cytryn nor any other witness testi-
fied about what happened when Feinberg allegedly got to
his office. Moreover, Femberg's version of her request to
Stephens-that the suspension be postponed for 2 weeks to
coincide with her planned move and enable her to accumu-
late moving costs-seems more plausible than Stephens'
and Cytryn's version, which amount to a request that the
suspension be postponed until a time when Feinberg would
no longer be working for, Respondent anyway.
For the foregoing reasons, and after considering the wit-
nesses' demeanor, I do not credit Cytryn's or Stephens'
testimony about her representations to Cytryn regarding
Feinberg's moving plans and her request for postponement
of her.suspension . For,similar reasons, I do not credit Ste-
phens' version (except where corroborated by Feinberg) of
their suspension conversation or Stephens' testimony that
after this conversation, Feinberg left to go to Cytryn's of-
fice.
(2) Conclusions regarding the alleged discrimination
against Feinberg
The record shows that until January 1975 Respondent
was attempting to cause employees to sign Local 144 cards
and to prevent them from signing cards for its rival, Local
1115. From time to time between October 1974 and early
January 1975, Respondent's supervisors solicited employ-
ees to sign Local 144 cards. When employee Neff ex-
pressed interest in inducing her fellow employees to sign
cards for Local 1115, Supervisor Stephens told her that she
would be discharged if she did so. Feinberg nonetheless
successfully induced a number of her fellow employees to
sign Local 1115 cards. Thereafter, Cytryn asked her wheth-
er she had signed a card. When she admitted that she had,
he unsuccessfully attempted to obtain specifics from her
about the Local 1115 campaign. He also told Supervisor
Stephens that Feinberg had been, giving out Local 1115
cards, later during the same conversation that Feinberg
was to be suspended, and during the same conversation
told Stephens to direct Feinberg to hand the Local 1115
cards to Stephens so that she could give them to Cytryn.
While Cytryn did refer to "complaints" that Feinberg's
"attitude had changed and she wasn't performing the same
way as before," no complaints about Feinberg's work per-
formance had reached Stephens, as they likely would have
in the normal course. Moreover, it is uncontradicted that
Feinberg had never been reprimanded at all for not doing
her job properly. Thereafter, Stephens told Feinberg that
she would be discharged if she did not give Stephens the
signed, Local 1115 cards which Feinberg had accumulated,
and Feinberg gave them to Stephens.
A few days later, Feinberg was suspended for a month
on Cytryn's direction. Stephens told her, in effect, that Ste-
phens did not herself think that there had been a "slack" in
Feinberg's work, and did not know why Cytryn thought so.
Feinberg's subsequent attempts to talk to Cytryn directly,
when she could have asked him why he thought her work
had "slacked" off, were unavailing., At the hearing, Cytryn
testified that he had decided to suspend her because of an
incident which did not in fact occur, which according to
him happened on a date which (on the uncontradicted tes-
timony) preceded his decision to suspend Feinberg,"
which he did not mention to Stephens, and which was not
set forth in the suspension notice notwithstanding his own
testimony that he suspended her as an example to the other
aides and to forestall similar conduct by her and the others
in the future. On the basis of the foregoing facts, I con-
clude that Respondent suspended Feinberg because of her
activity on behalf of Local 1115, a rival to the union (Local
144) which Respondent then preferred. Accordingly, Fein-
berg's November 1974 suspension violated Section 8(a)(1),
(2), and (3) of the Act.
35 Stephens testified without contradiction that Feinberg returned the Lo-
cal 1115 cards to Stephens , pursuant to Stephens' directions relayed from
Cytryn, after Cytryn said he had decided to suspend Feinberg but before
she was suspended Feinberg testified without contradiction that she com-
plied with Stephens ' directions in this respect several days before receiving
her suspension notice Cytryn testified that the alleged reading incident oc-
curred the day before he told Stephens to prepare Feinberg 's suspension
notice.
HAVEN MANOR HEALTH RELATED FACILITY 339
Because Feinberg 's suspension was unlawful , Respon-
dent was at all times thereafter under a duty to recall her,
and would not be relieved of this duty even if its noncom-
pliance was motivated by an honest but mistaken belief
that she did not wish to return by reason of a change in
address.36 In any event, I conclude that Respondent's re-
fusal and failure to recall her until several weeks after the
reinstatement date specified on her suspension notice were
not so motivated , but were instead motivated by her activi-
ty on behalf of Local 1115 , which Respondent was still
opposing . In so concluding, I note that Cytryn promised
Feinberg a job after she told him that the only reason she
had started handing out Local 1115 cards was that Ste-
phens had called her and said it was all right , but accompa-
nied this promise by telling her that he "didn 't want any
more hanky-panky" or her "pulling the same nonsense."
For the reasons summarized supra, section II,E,I,b(l), I
conclude that Stephens ' handwritten entry on Re-
spondent 's file copy of Feinberg's suspension notice was
not made in response to any representation during the sus-
pension interview that Feinberg was moving , but was in-
stead made thereafter to provide paper support for a pre-
textuous contention that such was Respondent's real
motive for failing and refusing to recall her.
2. Respondent's conduct favoring Local 1115
a. Prerecognition conduct
In agreement with the General Counsel, I find that Re-
spondent violated Section 8(a)(1) and (2) of the Act when
(1) Supervisor Elbaz successfully solicited employees to
sign Local 1115 cards; (2) Elbaz accompanied his sohcita-
tion of employee Handy with an implied threat of dis-
charge if he did not sign, and, after Handy signed, told him
that he would be the last one Elbaz would let go; (3) Ste-
phens relayed to Neff Cytryn's statements that he wanted
Local 1115 cards signed; (4) Stephens relayed to Neff
Cytryn's instructions to go home during working hours to
obtain blank Local 1115 cards so they could be given out
at once; (5) Respondent paid Neff for the time she spent
on this errand; (6) Stephens told Neff to get these cards
signed as soon as possible ; (7) Supervisor Stephens told the
day-shift and evening-shift nursing staffs that if they did
not sign Local 1115 cards they would be replaced; and (8)
like statements were made to the night shift which began
work at l i p.m. on January 22, 1975.
As to this last incident, it is uncontradicted that after
White (a registered nurse on the 3 p.m.-to- I1 p .m. shift)37
had made such a statement to nurses ' aide Bascom , Super-
36 N L R.B ' v. Burnup and Sims, Inc, 379 U.S 21 (1964), o Rosenblum,
d/b/a Crown ' Handbag of California, and d/b/a Soft Touch Shoe Co, 137
NLRB 1162, 1164, 1177 (1962)
37 White reported directly to Supervisor Stephens, and told nurses aide
Feinberg that the orders which White gave her came directly from Stephens.
When White was on duty , she was the only person in charge of the nurses
aides and orderlies on her shift . She told them what to do and what floors to
work on . If the charge nurse (who was answerable to White) was not
around, emergencies were reported to White . White filled out employee
evaluation forms . She had the key to the medical supply cabinet , and occa-
sionally gave out medications . Nursing Directress Stephens testified that
White was a "supervisor" on the , 3 p.m -to-11 p in shift Licensed Practical
Nurse Yates, who did not work on White's shift , testified that to her knowl-
visor Stephens told Licensed Practical Nurse Yates 38 that
Stephens had heard from Supervisor Cytryn the same thing
that White had heard; and that Yates did in fact relay this
statement to Bascom and other employees on that shift. I
find it unnecessary to determine whether Yates and White
were employees or supervisors. If Yates was an employee,
Stephens' statement to her constituted an unfair labor
practice without regard to whether it was conveyed to
others. If, on the other hand, Yates was a supervisor, her
statements to others on the shift , whose employee status is
undisputed, constituted an unfair labor practice whether or
not authorized by Supervisor Stephens. If White was a su-
pervisor, or if Supervisor Stephens' statements to Yates
constituted an effective ratification of White's statements
to employee Bascom notwithstanding the suggestion that
Yates was herself a supervisor, White's replacement threat
would nevertheless add nothing to the unfair labor practice
findings based on Stephens' like threats to the two preced-
ing shifts and on the Stephens-Yates-Bascom conversations
charging Respondent with threats repeated by Stephens or
Yates.
The General Counsel apparently contends that Neff was
a supervisor. I do not agree. Neff reported to Nursing Di-
rectress Stephens, a registered nurse who was admittedly a
supervisor, and to registered nurse Whitbecker (supra, fn.
19), who, like Neff, worked on the 7 a.m.-3 p.m. shift. Neff
was a licensed practical nurse on the second and fourth
floor during the 7 a.m.-3 p.m. shift. There is no evidence
that any other licensed practical nurses were working on
those floors during that shift. The employees on those
floors, who were nurses aides and orderlies , reported emer-
gencies to Neff and went to her for instructions about what
job to do. Neff had the key to the medicine cabinets on
these floors, and was in charge of dispensing medicines on
these floors. Stephens, any other supervisor working for the
day, or Neff would walk around to make sure that employ-
ees were doing their jobs. Neff would orally reprimand em-
ployees for not doing their jobs, and would then report
such reprimands to her superiors, who would then put a
written reprimand in the employee's personnel folder or
otherwise take care of the matter . When higher manage-
ment issued orders, Stephens or other supervisors some-
times themselves told employees about them , and some-
times relayed them to Neff to relay to the employees. Neff
conveyed to nurses aides and orderlies the procedure and
policies set up by Stephens and Cytryn. When asked
whether Neff could use discretion in ordering people how
to do things, Stephens testified, "It was spelled out in the
guidelines as her job description called for as an L.P.N."
The record otherwise fails to show what these "guidelines"
were.
edge White was not a part of management , but for demeanor reasons, I do
not regard this as Yates' honest belief
38 Yates was a licensed practical nurse on the 1I p.m.-to-7 am shift
Nobody superior to her was on duty during this shift She testified that
during the period here involved, she was "the only professional" on that
shift She was in charge of and gave orders , instructions, and assignments to
the nurses aides and orderlies on that shift , who reported to her An employ-
ee on that shift who was late or absent would report to her. Yates repri-
manded employees on that shift if they did not do theirjobs right . She gave
out medications on that shift Employee Bascom , a nurses aide on that shift,
testified that Yates was "our supervisor."
340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I believe that such authority as Neff possessed with re-
spect to the nurses aides and orderlies was not supervisory,
but arose from her superior training regarding patient
care.39 However, such authority tended to suggest to the
employees that her solicitation of signatures on Local 1115
cards proceeded from management. Moreover, although
Neff evinced a desire to solicit support for Local 1115 be-
fore Respondent began to assist it, her Local 1115 solicita-
tions in January 1975 were stimulated, speeded, and eased
by orders and statements issued by her supervisory superi-
ors. Accordingly, I conclude that Respondent further vio-
lated Section 8(a)(1) and (2) when Neff solicited signatures
on Local 1115 cards. International Association of Machin-
ists; Tool and Die Makers Lodge No. 35 v. N.L.R.B., 311
U.S. 72, 78'-80 (1940); Prospect Gardens of Norwalk, Inc.,
177 NLRB 136, 138, In. 1 (1969).
b. Recognition of Local 1115 and execution with it of a
union-security clause
Before Respondent began to intervene on Local 1115's
behalf, a comparatively small number of employees signed
authorization cards for that union. However, in mid-Janu-
ary 1975, food service Supervisor Elbaz successfully solic-
ited seven' or eight of his subordinates to sign Local 1115
cards, accompanying his solicitation of employee Handy
by an implied threat of discharge if he did not sign and,
after Handy signed, by a promise that he would be re-
tained. An hour later, "everybody" knew about the Handy
incident. Moreover, on January 22, Supervisor Stephens
relayed to Neff Administrator Cytryn's statement that he
wanted Neff to give out Local 1115 cards to employees
and, at Cytryn's direction, asked Neff to go home during
paid working hours to procure blank Local 1115 cards for
this purpose. In addition, the same day, Stephens made the
employees more receptive to solicitation for Local 1115 by
telling a number of employees that they would be replaced
if they did not sign. The record shows that reports to this
effect were widely disseminated in Haven Manor while 35
to 40 employees, constituting a substantial majority, were
signing Local 1115 cards on January 22 and 23.
In short, after Elbaz and Neff began to solicit for Local
1115, the employees generally knew-either directly or
from reports made by others-that management was soli-
citing for that union and was threatening to replace em-
ployees who did not sign Local 1115 cards. Accordingly,
this unlawful conduct by management tainted all of the 35
or 40 cards which Neff gave to Local 1115 Representative
Tracy on' January 23.40 Moreover, Tracy's remarks and
conduct make it clear that such cards were essential to the
39 Pinecrest Convalescent Home, Inc, 222 NLRB 13 (1976); Wing Memori-
al Hospital Association, 217 NLRB 1015 (1975), St Mary's Hospital, Inc,
220 NLRB 496 (1975). Cf. Avon Convalescent Center, Inc, 200 NLRB 702,
704-707, enfd 490 F 2d 1384 (C.A 6, 1974), where the persons found to be
supervisors had power to enforce employer regulations regarding solicita-
tion and distribution , appearance and dress, leaving the building without
permission and other behavior , punching of timecards , work assignments
and schedules , smoking , and making or receiving telephone calls.
40 Amalgamated Local Union 355 [Russell Motors, Inc ] v N L R B, 481
F.2d 996, 1002, fn . 8 (C.A. 2, 1973)
card majority demonstrated by Local 1115 on the af-
ternoon of that day.41 Accordingly, I conclude that not-
withstanding such a paper showing, Local 1115 did not
represent an uncoerced majority of the employees in the
unit. It follows that Respondent violated Section 8(a)(1)
and (2) of the Act by thereafter executing, maintaining,
and enforcing a collective-bargaining agreement with Lo-
cal 1115 whereunder Local 1115 was recognized as the ex-
clusive representative of the employees in the contract unit,
Local 1115 membership in good standing was required as a
condition of employment, and dues and initiation fees
were deducted from employees' wages and paid to Local
1115 pursuant to employees' checkoff authorizations.42
In view of my conclusions in this respect, I find it unnec-
essary to determine whether Respondent's conduct was
likewise unlawful under the principles generated by Mid-
west Piping and Supply Co., Inc., 63 NLRB 1060, 1069-71
(1945), even though Local 144s claim was based at least
partly on authorization cards obtained through unlawful
assistance by Respondent. Cf. Kay Jay Corporation d/b/a
McKees Rocks Foodland, 216 NLRB 968 (1975); Anton No-
ley, et ano, a Co-Partnership, d/b/a Doctor's Hospital, Free-
port, New York, 185 NLRB 147, especially at 154, In. 23
(1970).
There is no evidence to support the complaint allega-
tions that Stephens, Elbaz, White, and Neff urged and so-
licited employees to sign checkoff authorizations. Nor is
there any evidence to support the complaint allegation that
Respondent urged and directed employees to attend a
meeting of Local 1115.
3. Respondent's interrogation of employee Jose Rivera
I further find that Respondent violated Section 8(a)(1) of
the Act when Supervisor Cytryn asked employee Jose Ri-
vera whether he was involved with Local 144. In so doing,
I note that Rivera gave an untruthful answer because he
was afraid he would lose his job if he admitted such activi-
ty, and that no legitimate reason appears for such an inqui-
ry
1. Respondent is engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
2. Local 144 and Local 1115 are labor organizations
within the meaning of Section 2(5) of the Act.
3. Respondent has violated Section 8(a)(1) and (2) of the
Act by soliciting employees to sign authorization cards for
Local 144, by telling an employee to solicit signed Local
144 cards from others, by threatening to discharge an em-
ployee if she solicited signatures on Local 1115 cards, by
interrogating an employee about activity on behalf of Lo-
cal 1115, by telling an employee to give management the
41 Accordingly, I need not and do not determine whether the record war-
rants an inference that the cards procured by Elbaz were used in the card
count
42 Department Store Food Corp of Penna., 172 NLRB 1203, 1208-09
(1968), enfd 415 F.2d 74 (C A. 3, 1969), Pittsburgh Metal Lithographing Co,
Inc, 158 NLRB 1126, 1132-34 (1966); Seaview Manor Home for Adults, 222
NLRB 596, 603-604 (1976), and cases cited. The complaint does not contain
an 8(a)(3) allegation based on the union-security clause
HAVEN MANOR HEALTH RELATED FACILITY
signed Local 1115 cards she had collected, and by threat-
ening to discharge her if she failed to comply with this
direction.
4. Respondent has violated Section 8(a)(1), (2), and (3)
of the Act by denying employment to Kathleen Feinberg
because of her Local 1115 activity.
5. Respondent has violated Section 8(a)(1) and (2) of the
Act by soliciting employees to sign Local 1115 authoriza-
tion cards; threatening employees with loss of employment
if they did not sign such cards; by promising an employee
job security because he had signed; telling an employee to
get employees to sign Local 1115 cards; telling her to go
home on paid working time to obtain blank Local 1115
cards; executing and maintaining a contract with Local
1115 whereunder Local 1115 is recognized as the exclusive
bargaining representative of the employees in the contract
unit and Local 1115 membership is required as a condition
of employment; and deducting dues and initiation fees
from employees' wages, pursuant to employee checkoff au-
thorizations, and paying them to Local 1115.
6. Respondent has violated Section 8(a)(1) of the Act by
interrogating an employee about his Local 144 activity.
7. Respondent has not kept protected employee activity
under surveillance, solicited employees to sign checkoff au-
thorizations, or solicited employees to attend a Local 1115
meeting.
8. The unfair labor practices found in paragraphs 3
through 6 affect commerce within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has violated the Act in
certain respects, I shall recommend that it be required to
cease and desist therefrom. This record shows that Respon-
dent initially used unlawful pressure to bring Local 144
into the facility and to exclude Local 1115, which was also
trying to organize the employees. Such pressure included a
threat to discharge employees for Local 1115 activity and
the termination (initiated by a suspension, and eventually
rescinded) of an employee because of her efforts to obtain
signatures on Local 1115 authorization cards. Later, after
Local 144 stated that it would "not make a deal" with
Respondent and Respondent decided that it preferred Lo-
cal 1115 instead, Respondent imposed comparable pres-
sure on employees to sign Local 1115 cards, including
threats to discharge employees who did not sign and a
promise of job security to an employee who did. After thus
creating a paper majority for Local 1115, Respondent
sought to secure its incumbency by executing a union-se-
curity/checkoff contract with it on the basis of a card
check in which Local 144 was not asked to participate,
even though its support was no more vulnerable to assis-
tance charges than was the support tendered by Local
1115. In short, in a period of 4 months, Respondent unlaw-
fully used its control over job tenure, first to favor Local
144 and defeat Local 1115, and then to achieve precisely
the opposite result. Such indiscriminate unfair labor prac-
tices lead me to anticipate that, unless restrained, Respon-
dent will engage in continuing and varying efforts to con-
341
trol its employees' exercise of their Section 7 rights.
Accordingly, I shall recommend that Respondent be re-
quired to cease and desist from infringing on employees'
rights in any other manner. N.L.RB. v. Express Publishing
Co., 312 U.S. 426,437-439 (1941); N.L.R.B. v. Southern
Transport, Inc., 343 F.2d 558, 560-561 (C.A. 8, 1965);
N.L.R.B. v. United Mineral and Chemical Corporation, 391
F.2d 829, 837-838 (C.A. 2, 1968); SKRL Die Casting, Inc.,
222 NLRB 85 (1976); Brom Machine and Foundry Co., 222
NLRB 74 (1976); Highland House Nursing Center, Inc., 222
NLRB 134 (1976).
Although, Kathleen Feinberg has been called back to
work as a nurses aide, it is not clear from this record that
she has been reinstated without loss of seniority or other
rights and privileges. Accordingly, as a precautionary mea-
sure, I shall recommend that Respondent be required to
offer her reinstatement if it has not already, done so. In
addition, I shall recommend that Respondent be required
to excise from her personnel records any reference to her
suspension or termination, and to make her whole for/any
loss of earnings by reason of the discrimination against her,
by payment to her of a sum of money equal to that which
she would- have earned but for the discrimination against
her, less her net earnings during this period, to be comput-
ed in the manner described in F. W. Woolworth Company,
90 NLRB 289 (1950), with interest as described in Isis
Plumbing & Heating Co., 138 NLRB 716 (1962).
In addition, I shall recommend that Respondent be re-
quired to withdraw and withhold all recognition from Lo-
cal 1115, and to cease giving effect to the January 1975
contract, which was unlawfully executed, or to any renew-
al, modification, or extension thereof, until such time as
Local 1115 shall have been certified by the Board as the
exclusive representative of the employees in question. Fur-
ther, because'the January 1975 contract with Local 1115
was unlawfully entered into with an assisted Union and
contained union-shop and checkoff clauses, I shall recom-
mend that Respondent be required to reimburse all em-
ployees in the contract unit for dues and initiation fees
paid by them to Local 1115, or checked off from their
wages. The reimbursement order shall include all employ-
ees who signed for Local 1115 for the first time after Re-
spondent bean unlawfully to assist Local 1115-that is,
when Supervisor Elbaz began to solicit for Local 1115-in
view of the evidence that word of Respondent's unlawful
aid to Local 1115 was widely circulated throughout'the
facility. The reimbursement order shall also include em-
ployees who signed for Local 1115 before Respondent be-
gan unlawfully to assist Local 1115, but also signed cards
for Local 144 or some other union while working at the
facility 43 However, the reimbursement order shall not in-
clude any remaining employees who signed up for Local
1115, and for it alone, before Respondent began unlawful-
43 The Drackett Company, 207 NLRB 447, 451 ( 1973) Doubts about
whether Local 144 cards were freely executed should for this purpose be
resolved against Respondent , whose unlawful conduct created such doubts
See N . L R.B. v Remington Rand, Inc , 94 F.2d 862 , 872 (C.A. 2, 1938), cert
denied 304 U S. 576 ; Local Union No 2088, International Brotherhood of
Electrical Workers, AFL-CIO (Federal Electric Corporation), 218 NLRB 396
(1975)
342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ly to assist it 44 Any such payments shall include, interest as
prescribed in Isis, supra.
In addition, I shall recommend that Respondent be re-
quired to post appropriate notices in both Spanish, the na-
tive language of some of Respondent's employees, and
English. It is true that just before the Local 1115 card
count, Cytryn told some of the employees that he could not
tell the staff who should or should not sign union cards.
However, during this same speech he conceded that he
himself had initiated Stephens' assertion that nonsigners
would be replaced, and immediately after the speech and
at all subsequent times, Respondent engaged in conduct
which would be lawful only on the assumption that the
Local 1115 cards were freely signed.
Local 144's posthearing letter states that "an election
should be ordered as part of the Board's remedy in this
case . . . . Ordering that an election immediately follow a
posting period . . .' will expedite implementation of the
employees' right to designate a bargaining representative
under conditions conducive to free choice." I agree with
Local 144 that the Board's remedial powers under Section
10(c) include the conduct of an election. N.L.R.B. v. Dis-
trict 50, United Mine Workers of America, 355 U.S. 453
(1958). However, I do not think directing such an election
in the instant case would effectuate the policies of the Act.
The time which could be saved by this'procedure would be,
under optimum conditions, the time needed by Local 144
or Local 1115 to obtain a fresh showing of interest dated
after the posting period. On the other hand, a direction of
election in the instant order not only would risk the
agency's expenditure of unnecessary time and funds, a risk
obviated by the showing-of-interest requirements in repre-
sentation cases,45 but also might in the end consume more
time than would expecting Local 144 to resort to normal
representation case procedures. Such procedures are al-
ready structured to accommodate any disputes as to unit
and voting eligibility, whereas no such structured proce-
dures exist in connection with the somewhat unusual elec-
tion directed in connection with a remedial order46 I note,
moreover, that such a remedy was rejected by the Board in
the most recent case I have been able to find in this area-
namely, Prospect Gardens, supra, 177 NLRB at 140, fn. 2.47
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recommend-
ed:
44 Local 60, United Brotherhood of Carpenters and Joiners of America,
AFL-CIO v NLRB, 365 U.S 651 (1961). Cf NLRB v Revere Metal
Art Ca, Inc, and Amalgamated Union Local 5, UAW, Independent, 280172d
96, 100-101 (C.A 2, 1960), cert denied 364 U.S 894, decided before Local
60, supra
45 See N L R.B v. J I Case Company, 201 F.2d 597, 598-599 (C A 9,
1953).
46 I note that the unit specified in the agreement for a card check (supra,
fn 26) is described in somewhat different language from the units specified
in the arbitrator's affidavit (supra, In. 28) and in the contract itself (supra, In
27). Moreover, even the instant record, which was not developed in connec-
tion with unit issues , raises a question as to whether Licensed Practical
Nurse Yates is a supervisor or an employee (supra, fn. 38).
47 The Board there rejected the Trial Examiner's recommended order to
this effect , which order he had issued in reliance on Purolator Products, Inc,
160 NLRB 80 (1966) I am unclear what distinction , if any, the Board was
drawing between the two cases Local 144 has not cited either of them
ORDER48
The Respondent Haven Manor Health Related Facility,
Far Rockaway, New York, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Soliciting employees to sign authorization cards for
Local 144, Nursing Home, Hotel, Hospital and Allied
Health Services, SEIU, AFL-CIO, or Local 1115, Joint
Board, Nursing Home and Hospital Employees Division,
or any other labor organization.
(b) Threatening to discharge employees if they solicit
signatures or authorization cards for Local 1115 or any
other' labor organization.
(c) Interrogating employees about activities on behalf of
Local' 144, Local 1115, or any other labor organization, in
a manner constituting interference, restraint, of coercion.
(d) Telling employees to give management the signed
cards for Local 1115, or any other labor organization, col-
lected by such employees.
(e) Threatening to discharge employees if they fail to
give management the signed cards for Local 1115, or any
other labor organization, collected by such employees.
(f) Threatening employees with loss of employment if
they do not sign authorization cards on behalf of Local
1115 or any other labor organization.
(g) Promising employees job security because they
signed authorization cards on behalf of Local 1115 or any
other labor organization.
(h) Telling employees to get other employees to sign au-
thorization cards on behalf of Local 144, Local 1115, or
any other labor organization.
(i) Telling employees to go home on paid working time
to obtain blank authorization cards for Local 1115 or any
other labor organization.
(j) Executing or maintaining a' contract with Local 1115
or any other labor organization wherein the contracting
labor organization is recognized as the exclusive bargain-
ing representative of the employees in the contract unit or
wherein membership in the contracting labor organization
is required as a condition of employment, where such con-
tracting organization did not at the time of such execution
represent an uncoerced majority of the employees in the
contract unit.
(k) Deducting dues and initiation fees from employees'
wages, pursuant to employee checkoff authorizations, and
paying them to Local 1115 or any other contracting labor
organization , pursuant to a collective-bargaining agree-
ment with a labor organization which did not at the time of
such execution represent an uncoerced majority of the em-
ployees in the contract unit, where such an agreement con-
tains a clause requiring membership in such labor organi-
zation as a condition of employment.
(1) Giving effect to or enforcing the collective-bargain-
ing agreement executed with Local 1115 about January 27,
48 In the event no exceptions are filed as provided by Sec . 10246 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , recommendations , 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
HAVEN MANOR HEALTH RELATED FACILITY
1975, or to any modification, extension, renewal, or supple-
ment thereof, unless and until that organization has been
certified by the National Labor Relations Board; provided,
however, that nothing herein shall require Respondent to
vary or abandon any existing term or condition of employ-
ment.
(m) Suspending or terminating employees, or in any
other manner discriminating against them, to encourage
membership in Local 144 or any other labor organization,
or to discourage membership in Local 1115 or any other
labor organization.
(n) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights under
Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Withdraw and withhold all recognition from Local
1115 as a representative of its employees for the purpose of
collective bargaining, -unless and until said labor organiza-
tion has been duly certified by the National Labor Rela-
tions Board as the exclusive representative of such employ-
ees.
(b) Reimburse present and former employees for all Lo-
cal 1115 dues and initiation fees paid by or withheld from
them in the manner provided in section of this Decision
entitled "The Remedy."
(c) Offer reinstatement to Kathleen Feinberg, if it has
not already done so, without prejudice to her seniority or
other rights and privileges; excise from her personnel rec-
ords any reference to her suspension or termination; and
make her whole for any loss of pay she may have suffered
by reason of the discrimination against her, in the manner
set forth in the section of this Decision entitled "The Rem-
edy."
(d) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records neces-
sary or useful to an analysis of the amount of backpay
under the terms of this Order.
(e) Post at its place of business in Far Rockaway, New
York, copies in Spanish and English of the attached notice
marked "Appendix." 49 Copies of said notice, on forms
provided by the Regional Director for Region 29, after
being duly signed by Respondent's representatives, 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 em-
ployees are customarily posted. Reasonable steps shall be
taken by Respondent to insure that the said notices are not
altered, defaced, or covered by any other material.
(f) Notify the Regional Director for Region 29, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint is dismissed to
the extent it alleges violations not previously found.
49 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
343
After a hearing in which all parties had the chance to pre-
sent their evidence, it has been decided that we violated the
law and we have been ordered to post this notice. We in-
tend to carry out the order of the Board and abide by the
following:
WE WILL NOT solicit employees to sign authorization
cards for Local 144, Nursing Home, Hotel, Hospital
and Allied Health Services Union, SEIU, AFL-CIO,
or Local 1115, Joint Board, Nursing Home and Hospi-
tal Employees Division, or any other union.
WE WILL NOT threaten to discharge employees if they
solicit signatures on authorization cards for Local
1115 or any other union.
WE WILL NOT ask employees about activities on be-
half of Local 144, Local 1115, or any other union, in a
manner constituting interference, restraint, or coer-
cion.
WE WILL NOT tell employees to give management the
signed cards collected by such employees for Local
1115 or any other union.
WE WILL NOT threaten to discharge employees if they
fail to give management such cards.
WE WILL NOT threaten employees with loss of em-
ployment if they do not sign authorization cards for
Local 1115 or any other union.
WE WILL NOT promise employees job security be-
cause they signed authorization cards for Local 1115
or any other union.
WE- WILL NOT tell employees to get other employees
to sign authorization cards on behalf of Local 144,
Local 1115, or any other union.
WE WILL NOT tell employees to go home on paid
working time to obtain blank authorization cards for
Local 1115 or any other union.
WE WILL NOT sign or keep in effect any contract with
Local 1115, or any other union, wherein the contract-
ing union is recognized as your only bargaining repre-
sentative or membership in that union is required as a
condition of employment, where that union did not, at
the time the contract was signed , represent an un-
coerced majority of the employees in the contract unit.
WE WILL NOT, pursuant to such a union-security con-
tract, deduct dues and initiation fees from employees'
wages, under employee checkoff authorizations, and
pay them to the contracting union, Local 1115, or
otherwise.
WE WILL NOT give effect to or enforce the contract
executed with Local 1115 about January 27, 1975, or
to any modification, extension, renewal, or supple-
ment thereof, unless and until Local 1115 is certified
by the Board; but we are not required to vary or aban-
don any existing term or condition of employment.
344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT suspend, terminate , or in any other
manner discriminate against employees , to encourage
membership in Local 144, or any other union, or to
discourage membership in Local 1115 or any other
union.
WE WILL withdraw and withhold recognition from
Local 1115 unless and until it is certified by the Board.
WE WILL reimburse present and former employees,
with interest , for all Local 1115 dues and initiation
fees paid by or withheld from them , in the manner
provided in "The Remedy" section of the Board's de-
cision.
WE WILL offer reinstatement to Kathleen Feinberg,
if we have not already done so, without prejudice to
her seniority or other rights and privileges ; remove
from her personnel records any reference to her sus-
pension or termination ; and make her whole, with in-
terest, for any loss of pay from the discrimination
against her.
To engage in self-organization
To form , join, or assist any union
To bargain collectively through- representatives of
their own choosing
To engage in activities together for the purpose of
collective bargaining or other mutual aid or protec-
tion
To refrain from any such activities.
WE WILL NOT in any other manner interfere with,
restrain , or coerce employees in the exercise of these
rights.
Our employees are free to exercise any or all of these
rights, including membership in Local 1115 , Local 144, or
any other union . Our employees are also free to refrain
from any or all of such activities , including membership in
Local 1115 or Local 144 , except to the extent that union
membership may be required by a collective -bargaining
agreement as a condition of employment -in accordance
with the proviso to Section 8(a)(3) of the Act.
The National Labor Relations Act gives employees the
following rights: HAVEN MANOR HEALTH
RELATED FACILITY