Lillian Abrahamson Nursing Home

National Labor Relations Board - Board Decisions

Apr 2, 1970

181 N.L.R.B. 910 (N.L.R.B. 1970)

910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2520 Madison Corporation d/b/a Lillian
Abrahamson Nursing Home and Hospital and
Nursing Home Division , Local 451 , Culinary
Workers and Bartenders , Hotel & Restaurant
Employees & Bartenders International Union,
AFL-CIO. Case 19-CA-3978
April 2, 1970
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
On October 15, 1968, Trial Examiner Martin S.
Bennett issued his Decision in the above -entitled
proceeding , finding that the Respondent had
violated Section 8(a)(1) and ( 5) of the National
Labor Relations Act, as amended, and
recommending that the Respondent be ordered to
cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies
of the Act, including an order directing the
Respondent to bargain with the Union. Thereafter,
the Respondent filed exceptions to the Trial
Examiner ' s Decision and a supporting brief.
On February 17, 1969, pursuant to the provisions
of Section 3(b) of the National Labor Relations
Act, as amended , the National Labor Relations
Board issued its Decision and Order ,' in which it
adopted the findings , conclusions and
recommendations of the Trial Examiner.
Thereafter , on June 16, 1969 , the Supreme Court
of the United States issued its opinion in N L.R B
v. Gissel Packing Company, 395 U.S 575, in which
it laid down certain guidelines relative to the
propriety of finding violations or violations of other
sections of the Act.
By notice dated August 5, 1969, the Board
notified the parties that it had decided to reconsider,
in light of Gissel , the finding of a violation of
Section 8(a)(5) and the imposition of a bargaining
order as part of its remedy, and invited all parties to
file statements of position on or before August 19,
1969.
Thereafter , on August 18, 1969 , the General
Counsel and the Charging Party filed statements of
position with the Board.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel
In the light of the entire record in this case, the
impact of the Supreme Court's Gissel Packing
Company2 decision and the statements of positions
of the General Counsel and the Charging Party
concerning such impact , the Board hereby reaffirms
174 NLRB No 86
its Decision and Order for the reasons indicated
below:
The Union conducted an organizational campaign
among Respondent's employees and obtained 27
authorization cards from the 41 employees in the
unit , filed a petition for an election on March 12
and on March 15, wrote Respondent requesting
recognition. The Union offered to prove its majority
and proposed bargaining for a contract. This
demand was in Respondent's hands on March 19,
1968. Immediately after receipt of the demand for
recognition, the two most active union employees,
Head Cook Marie Ensign and Assistant Cook
Mabel Searle, were told they were supervisors and
granted a 10-cent-per-hour pay raise effective
immediately Three nursing aides were similarly
given 10-cent-per-hour raises and told they would be
supervisory aides. On or about March 27 a staff
meeting of all employees was called, during which it
was promised that all employees would receive
10-cent-per-hour wage increases effective July 1, a
new vacation plan with 1 week after I year's
employment and 1 additional day per year up to a
total of 4 weeks, as contrasted with the existing
policy of only I week; and 2 paid holidays as
contrasted with the existing policy of none.
Approximately 2 days later, another meeting of the
staff was called, during which the staff was informed
that it had been learned that certain girls were
interested in the Union and had signed up, which
would require negotiations with the Union In that
event, the wage increases, vacations, and holidays
promised at the preceding meeting could not be
granted as negotiations might last 12 to 18 months.
It was suggested that the girls sign a petition
repudiating the Union as their negotiating agent.
Petitions repudiating the Union were drafted by
management and signed by the employees. The wage
increases were granted in July and the other benefits
were also put into effect. At no time were any of
these benefits discussed with the Union, and its
demand for recognition was completely ignored.
In our original decision, we found that by the
foregoing conduct Respondent violated Section
8(a)(l) and (5) of the Act, and we ordered
Respondent , inter alia to bargain with the Union.
Upon reconsideration, we believe that such findings
and order fully comport with the guidelines laid
down by the Supreme Court in the Gissel case.
Insofar as is relevant here, the Supreme Court in
Gissel approved the Board's authority to issue a
bargaining order to redress unfair labor practices
"so coercive that, even in the absence of a Section
8(a)(5) violation, a bargaining order would have
been necessary to repair the unlawful effect of those
[unfair labor practices]."' In addition the Court
approved the Board's authority to issue a bargaining
order " ... in less extraordinary cases marked by
less pervasive practices which nonetheless still have
'N L R B v Gissel Packing Company, supra
'N L R B v Gissel Packing Company, supra at 615
181 NLRB No. 148
LILLIAN ABRAHAMSON NURSING HOME 911
the tendency to undermine majority strength and
impede the election processes."' In such situation,
the Board must examine the nature and extent of
the employer's unlawful conduct and ascertain the
likelihood that the use of traditional remedies would
ensure a fair election. The Court instructed the
Board to decide whether " . . . even though
traditional remedies might be able to ensure a fair
election there was insufficient indication that an
election would definitely be a more reliable test of
the employees' desires than the card count taken
before the unfair labor practices occurred."5
Applying these principles to the facts of this case,
it appears that, upon the Union's demand for
recognition as the employees' bargaining
representative, Respondent engaged in the unlawful
conduct detailed above in a calculated effort to
undermine the Union's majority status and to
prevent the holding of an election. We are satisfied
that the unfair labor practices were so flagrant and
coercive in nature as to require, in view of the
Union's majority status, even in the absence of an
8(a)(5) violation, a bargaining order to repair their
effect. In any event, we find that Respondent's
unfair labor practices were of such a pervasive
character as to make it unlikely that their coercive
effects would be neutralized by conventional
remedies so as to produce a fair election thereafter
In these circumstances, we believe that employee
sentiment as expressed through the unambiguous
authorization cards is a more reliable measure of
their desires on the issue of representation in this
case than an election would be
In light of all the circumstances of this case, we
are satisfied that our finding of a violation of
Section 8(a)(5) and,our judgment that a bargaining
order is necessary to remedy Respondent's unfair
labor practices and to protect employee exercise of
Section 7 rights, considered in the light of the
Supreme Court's Gissel decision, are appropriate
and should be reaffirmed.
Accordingly we reaffirm the findings, conclusions,
and remedy provided in our original Decision and
Order.
'Id at 614
'Id at 616