Maple Shade Nursing and Convalescent Center

National Labor Relations Board - Board Decisions

May 17, 1976

223 N.L.R.B. 1475 (N.L.R.B. 1976)

MAPLE SHADE NURSING AND CONVALESCENT CENTER
Maple Shade Nursing Home, Inc., d/b/a Maple
Shade Nursing and Convalescent Center and Retail
Clerks Union, Local 1360 a/w Retail Clerks Inter-
national Association, AFL-CIO. Cases 4-CA-7387,
4-CA-7612, and 4-RC-11539
May i7, 1976
DECISION , ORDER , AND DIRECTION
BY MEMBERS JENKINS , PENELLO, AND
WALTHER
On January 7, 1976, Administrative Law Judge
Thomas A. Ricci issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tiois and a supporting brief, the General Counsel
filed cross-exceptions and a memorandum in support
thereof, and the Charging Party filed cross-excep-
tions and a brief in opposition to the Respondent's
exceptions.
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.
Tine Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
coj}clusions of the Administrative Law Judge and to
adp t his recommended Order, as herein modified.2
atrary to our dissenting colleague, we agree
with the Administrative Law Judge that the record
does not warrant the finding that Marie Engel was
discharged because of her union activities.
Although we recognize that Respondent's pretex-
tual reasons for the discharge of Engel may give rise
to an inference of unlawful motive, we find that the
surrounding circumstances of this case require a
finding contrary to any such inference. Thus, unlike
the cases relied on by our dissenting colleague, the
circumstances surrounding the discharge of Engel
1 The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge . It is the Board 's established policy not to over-
rule an Administrative Law Judge 's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect . Standard Dry Wall Products, Inc., 91
NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully
examined the record and find no basis for reversing his findings.
2 Respondent contends that it offered full and adequate reinstatement to
employee Schoenberg . The Administrative Law Judge found that, while
there was some evidence indicating the possibility that Schoenberg may
have been offered adequate reinstatement , the evidence on this point was
unclear and it was possible that the offer was not adequate under Board
law. We find it unnecessary to pass on the Respondent 's contention. The
question of whether the offer of reinstatement was to Schoenberg 's former
position or , if that position was no longer available , to a substantially equiv-
alent position , is a matter which we believe is best left to the compliance
stage of this proceeding.
1475
militate against, rather than reinforce, any inference
of unlawful motive. As found by the Administrative
Law Judge, Engel was not an active union supporter
and she had told Respondent so on a number of oc-
casions. Further, Engel did not attend any union
meetings and this fact was also communicated by
Engel to Respondent. Regarding her union authori-
zation card, there is no evidence that Respondent
knew that Engel had signed an authorization card.
Finally, and most significantly, Engel's discharge oc-
curred approximately 3 months after the election and
during this period Respondent committed no signifi-
cant acts indicating union animus. Contrary to our
dissenting colleague, we are not persuaded by the
facts that Engel signed a union leaflet and was ob-
served by Respondent talking to a group of employ-
ees, including two known leading union supporters,
in Respondent's parking lot. As to the union leaflet,
Engel was only one of approximately 15 employees
who signed the leaflet. With regard to the conversa-
tion in the parking lot, the record reveals only that
upon leaving work one day Engel stopped and brief-
ly talked to a group of employees who were standing
in Respondent's parking lot. Accordingly, we agree
with the Administrative Law Judge's dismissal of the
8(a)(3) allegation with respect to employee Marie
Engel.
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, as modified
below, and hereby orders that the Respondent, Ma-
ple Shade Nursing Home, Inc., d/b/a Maple Shade
Nursing and Convalescent Center, Maple Shade,
New Jersey, its officers, agents, successors, and as-
signs, shall take the action set forth in the said rec-
ommended Order, as so modified.
Substitute the following for paragraph 2(b):
"(b) Make whole Betty Morris and Marie Schoen-
berg for any loss of earnings or benefits they suffered
by reason of their unlawful discharges, by paying to
each of them a sum of money equal to the amount
each normally would have earned from the date of
her discharge on May 5, 1975, to the date that she is
offered reinstatement by the Respondent, less her net
earnings during this period. Backpay shall be com-
puted with interest on a quarterly basis in the man-
ner set forth in F. W. Woolworth Company, 90 NLRB
289 (1950), and Isis Plumbing & Heating Co., 138
NLRB 716 (1962)."
223 NLRB No. 216
1476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DIRECTION
It is hereby directed that , as part of the investiga-
tion to ascertain a representative for the purposes of
collective bargaining with the Employer , the Region-
al Director for Region 4, pursuant to the Board's
Rules and Regulations , within 10 days from the date
of this Decision , Order , and Direction , shall open
and count the ballots of Betty Morris , Marie Schoen-
berg, and Carol Heinselman , and thereafter prepare
and cause to be served on the parties a revised tally
of ballots, including therein the count of said ballots,
upon the basis of which the Regional Director shall
issue the appropriate certification.
MEMBER JENKINS, concurring in part and dissenting
in part:
Marie Engel was discharged on September 16,
1975. During the strongly contested union campaign
preceding the election on June 26 , she had signed an
authorization card and a petition supporting the
Union which circulated throughout the Home. She
was also seen by Assistant Administrator Amato ac-
companying the two leading union advocates on
Respondent's premises the day these employees were
illegally discharged.
Respondent's supervisory interrogations of her
during the campaign as to whether she supported the
Union were found by the Administrative Law Judge
to be violative of Section 8(a)(l) of the Act , as were
the other incidents in which Amato conveyed to her
the impression of surveillance , promised increased
benefits if she voted against the Union , and threat-
ened her by implying it would be to her disadvantage
to vote for the Union. All of this has been found by
the Administrative Law Judge and is accepted by the
majority.
In addition to his affirmative findings listed above,
the Administrative Law Judge found that the reasons
advanced by Respondent to justify Engel 's discharge
were false . In so doing he has created a vacuum with
respect to Respondent's motivation for discharging
Engel , set against a background of multiple unfair
labor practices , a majority of which were involved
directly with its illegal attempts to dissuade her from
supporting the Union. With the record in such a pos-
ture, it is incredible to me that the Administrative
Law Judge and my colleagues in the majority here
could fail to find that Respondent was motivated by
her support for the Union in discharging her.
Contrary to the Administrative Law Judge 's impli-
cation , the General Counsel need only show a gener-
al union animus as part of his prima facie case in
establishing that a discharge violated Section 8(a)(3)
of the Act . Moreover , as I have already noted, the
record here does in fact show that union animus by
Respondent was directed against Engel personally.
Likewise , I do not agree with the Administrative
Law Judge that the usual element of timeliness is
missing in this case , therefore militating against a
finding that Engel 's discharge was for illegal reasons.
There is no incident on the record that is advanced
as precipitating her discharge , and Respondent's own
witnesses contradict one another as to who made the
decision to discharge her. Given the fact that Re-
spondent filed determinative challenges as well as
objections to the June election , thus forestalling its
obligation to recognize the Union and creating the
possibility that a second election might be held, the
3-month delay in effecting Engel 's discharge is not so
remote from Respondent 's other unfair labor practic-
es that the connection cannot reasonably be made.
The Administrative Law Judge 's refusal to make
the connection between Respondent 's knowledge of
Engel 's union activity and its established union ani-
mus constitutes a failure to accept the clear implica-
tions of the facts as he himself finds them , as well as
a departure from Board precedent.
The Board has held , in a case with strikingly simi-
lar facts , that , when a prima facie case has been es-
tablished and Respondent 's affirmative defense has
been discredited , the inference that the motivation
for the discharge is unlawful is fully warranted. Dan
Lipman, Norman Ruttenberg and Abe Goldstein, a
Partnership, d/b/a Ascot Nursing Centre, 216 NLRB
680 (1975 ). In that case the respondent had claimed
that the alleged discriminatee had been discharged
for threatening an executive 's son . The Administra-
tive Law Judge found that no such threat had been
made , finding instead that respondent 's expressed
reasons were pretextual . He nevertheless held that
the record did not support a finding of an 8(a)(3)
violation because the General Counsel had not estab-
lished affirmatively that the alleged discriminatee
had been discharged for union or other protected ac-
tivities. In reversing , the Board stated that:
Where no real attempt is made to investigate
the alleged ground for a discharge and the rea-
son given for the discharge is false, there is [a]
basis for an inference that there was an unlawful
motive for the discharge which the employer de-
sired to conceal , at least where the surrounding
circumstances tend to reinforce that inference.
As illustrated above , the surrounding circumstances
here are completely and uniformly supportive of
such an inference , without one iota of affirmative ev-
idence to the contrary.
It cannot be gainsaid that Respondent made a spe-
cial effort to find out Engel's union sympathies and
tried mightily to persuade her to vote against it. Her
MAPLE SHADE NURSING AND CONVALESCENT CENTER
admissions that she had not attended any union
meetings created the impression in Respondent that
she stood with it against the Union. When' subse-
quently Respondent learned that she had affirma-
tively shown her support for the Union, it realized
that it had been deceived. Later, when there arose a
possibility of a second election, Respondent retali-
ated. Contrary to the majority, these circumstances
support the inference that her discharge was motivat-
ed by a desire to defeat the Union and no other.
More recently the Board has accepted an Adminis-
trative Law Judge's characterization that under these
circumstances it is "axiomatic that a party giving a
false reason for that action is unlawful." Sinclair &
Valentine Company, 223 NLRB 1043 (1976).
Under all the circumstances of this case, applying
the proper legal standards, I would find that Marie
Engel was discharged because of her support for the
Union and that Respondent has thereby violated
Section 8(a)(3) of the Act.
In all other respects, I am in agreement with my
colleagues in accepting the remainder of the Admin-
istrative Law Judge's findings and conclusions.
DECISION
STATEMENT OF THE CASE
THOMAS A. Ricci, Administrative Law Judge: A hearing
in this consolidated proceeding was held on November 3
and 4, 1975, at Philadelphia, Pennsylvania. The complaint
in Case 4-CA-7387 issued on August 29, 1975, against Ma-
ple Shade Nursing Home, Inc., d/b/a Maple Shade Nurs-
ing and Convalescent Center, herein called the Company,
the Respondent, or the Employer, on a charge filed on
May 7, 1975, by Retail Clerks Union, Local 1360 a/w Re-
tail Clerks International Association , AFL-CIO, herein
called the Union. The complaint in Case 4-CA-7612 is-
sued on October 21, 1975, against the same Respondent,
based on a charge filed on September 29, 1975, by the same
Union. In Case 4-RC-11539, a Board-conducted election
was held on June 26, 1975; the Employer challenged three
of the ballots cast and then filed objections to conduct
allegedly affecting the results of the election . The Regional
Director directed a hearing on the challenges and on the
objections. The three cases were consolidated for single
hearing. The issues to be decided are whether the Respon-
dent violated Section 8(a)(1) and (3) of the Act, whether
the challenges were valid, and whether the Union engaged
in conduct which improperly interfered with the election.
Briefs were filed by the General Counsel and the Union.
Upon the entire record, and from my observation of the
witnesses , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
1477
In its nursing home in Maple Shades, New Jersey, the
Respondent, a New Jersey corporation, provides skilled
help, nursing facilities, and related services. During the
past year its dollar volume in the performance of such serv-
ices exceeded $100,000. During the same period it received
goods valued in excess of $5,000 from suppliers located in
the State of New Jersey but which in turn received goods
directly from out-of-state sources. I find that Respondent
is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
I find that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. A Picture of the Case
Self-organizational activities started among the
Respondent's employees in January and February 1975.
The Union filed a petition seeking a Board election and a
hearing on the petition was held before a Board agent on
April 23, 1975. On May 21 the Regional Director directed
an election, which was held on June 26, 1975. The results
of the balloting, as they stand, are inconclusive. On May 5
the Respondent summarily discharged two nurses-Betty
Morris and Marie Schoenberg, the original and prime ac-
tivists in the prounion movement. The complaint alleges
these two women were discharged because of their union
activities and that' therefore the Respondent violated Sec-
tion 8(a)(3) of the Act in each instance. The Respondent
also discharged Marie Engel on September 16, 1975, and
the complaint alleges this discharge was also a violation of
Section 8(a)(3).
As the union activities progressed, the Respondent em-
barked upon a studied campaign to bring about defeat of
the Union in the expected election; it distributed literature
towards that end and had its management representatives
discuss the matter in individual interviews with practically
all the employees-involved. The complaint alleges that in
the course of such activities the Respondent improperly
interrogated employees concerning their union activities,
coerced them by making them understand their activities
were being surveyed, promised them improved conditions
of employment if they rejected the Union, and invited
them to deal directly with the Company, behind the
Union's back, all in violation of Section 8(a)(1) of the Act.
The Respondent denies all allegations of wrongdoing. As
to Morris and Schoenberg, it defends on the asserted
grounds that they were discharged for having spoken of-
fensively to Morris Ostreicher, one of the owners of the
business. Engel, according to the Respondent, was released
because of general incompetence and undesirability.
1478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Credibility
The two principal defense witnesses were Morris Os-
treicher , the owner, and John Amato , administrator, both
top management officials in the nursing home . Another
major witness was Madeline Miller, called by the General
Counsel to prove illegal coercion by the Respondent as
alleged in the complaint, but relied on by the Respondent,
during ostensible cross -examination of the witness, to es-
tablish affirmatively improper conduct by the Charging
Party, said to prove the merits of the objections to the
election. There are questions of credibility, primarily be-
tween Ostreicher and Amato on the one hand, and a num-
ber of employee witnesses on the other . As to Mrs. Miller,
the Respondent is in an ambivalent position . Miller was a
part-time nurse, and in the beginning very vocal and open-
ly active in favor of the Union. In her direct testimony she
said the administrator several times talked to her privately,
questioned her about her union activities , gave her benefits
she had never enjoyed , and promised her full-time supervi-
sory status-all in the attempt to dissuade her from her
prounion resolve , and invited her to formulate demands
that might satisfy the entire nursing group without a union.
At first reluctant, she later did attempt direct bargaining
behind the Union's back, and eventually was made a full-
time supervisor after the election . Testifying after Miller,
Amato gave her the lie as to all these preelection talks. At
the same time, however , the Respondent had Miller testify
about what went on at the union meetings when , according
to the objections, the Union is charged with having ap-
pealed to racial or ethnic prejudices and thereby frustrated
an untrammelled election . As to this part of Miller's testi-
mony, the Respondent wants her to be believed. Which
shall it be? By the time she appeared as a witness at the
hearing Miller was a representative of management, a con-
ceded supervisor.
Actually, the critical credibility resolutions in this case
are not very difficult. A major, if not the most important
question presented in this entire proceeding involves the
discharge of the two nurses on May 5, between the date of
the Board hearing in the representation case and the day of
the election . Apart from the usual coloration that all com-
peting witnesses tend to add to their stories , there is little
dispute as to what happened that day when a problem of
supply shortages arose. Ostreicher, who discharged Morris
and Schoenberg shortly thereafter, testified as to his state
of mind and his reason for taking the unprecedented ac-
tion. But there is no such thing as objective or detached
proof of a state of mind . Decision in this type of case as to
what the true motivation was always requires consideration
of all the relevant factors . And yet, in a real sense , it also
touches upon individual credibility: Can the man whose
actions are put in question and who asserts one reason or
another be believed? If the sworn statement of the Employ-
er, whose state of mind is critical to the case, on its face
proves to a rational mind that he in fact chose to give false
testimony, his denial of the illegal motive alleged in the
complaint loses virtually all persuasion.
Kathleen Mader, a registered nurse , testified that on
May 5 Ostreicher took her and two nurses aides to lunch at
a cafeteria as his guests . She continued that when returning
the women to the nursing home Ostreicher asked her for
her home telephone number, and when she asked could
they talk in the home instead, he said no. She gave him her
number, he called her home, and he asked would she have
lunch or dinner with him. When she asked him did he want
to talk about the Union, again he said no, "about busi-
ness ." She met him, by appointment, for lunch at the res-
taurant. From the nurse's testimony: "He asked me if I
knew about the Union. I said yes. He said, `Did you ever
sign a union card?' I told him it was none of his business.
He said, 'Do you know who sent the union cards in?' I said
no. . . . He asked me if I knew, and if I would help him in
finding out what I know about the Union. I said no... .
He asked me if I could find out anything and I said no,
because I had not worked there very long and did not
know the people very well. . . . He said he could not offer
me anything but if I was good to him he would be good to
me. . . . He asked me if I had ever been to a convention.
I imaged it was a nursing home convention . He was talking
about Atlantic City. I said, no, and he asked me if I wanted
to go, and I said no."
There was a union meeting on June 12 at the home of an
employee named Pascale. Mader also testified that shortly
before that meeting Ostreicher asked her did she know
about "the union meeting ... and he asked me if I was
going . . . he asked me if I would find out what went on
there and would I tell him." She said she would not.
Ostreicher's version of the first lunch is that the two
aides asked him to take them out, and to take Mader too.
He said that during the lunch, "It began to be discussed in
regard to the union among the other girls . . . `Why do
they want a union?' they said." Ostreicher continued that
Mader then told him she wanted to talk to him and in the
car when returning to the nursing home she gave him her
phone number with a request that he call her. He said he
called her, and when he asked "how is everything," she
answered she did not want to talk on the phone but sug-
gested they have lunch together. He made an appointment
and met her at a restaurant. The owner's total testimony of
what took place between him and the nurse at the restau-
rant resolves without question the credibility issue between
the two: "At the table she told me the same story. She said,
'Mr. Ostreicher, I do not have much more to tell you than
I did before. You know I am not signing the card. I am not
interested in the union. I am a part-time worker. I do not
have much to tell you.' I said, 'Did you go to any meet-
ings?' and she said, 'No, I did not go to any meetings.' This
was the end of the conversation." t
If Ostreicher is to be believed, it means: (1) Mader had
already told him, before the second lunch meeting, "the
same story," that she had not signed a union card and that
she was not interested in the Union; (2) she took the trou-
In the face of the witness' flat statement that he had asked Mader
whether she had gone to any meeting , came the last question on direct
examination by Respondent 's counsel:
Q. In any of the meetings that you had with Mrs. Mader, did you
ask her if she was going to union meetings?
A. I do not remember . Maybe she said it in the way she said ev-
erything else. I think probably she told me just in the way she told me
that as well. I do not remember exactly . She might have told me that
also.
MAPLE SHADE NURSING AND CONVALESCENT CENTER 1479
ble to have him call her at home to arrange another meet-
ing; (3) her purpose in all of this was no more than to tell
him all over again that she had not signed and was not
interested. I can conceive of an employee wanting to tell
her employer, even in secret, that she has nothing to do
with a union movement. It is not rationally possible to
believe an employee would resort to this kind of behind-
the-scene drama with a top official of her employing com-
pany to tell him once again, only days after the first revela-
tion, that her knowledge and activity were totally negative.
At this hearing Ostreicher was not telling the truth; he
stands a discredited witness. I credit Mader, and I find that
the owner interrogated her about her union activity and
that of other employees, that he asked her to spy upon the
union activities of others, and that he offered to reward her
materially in return for such surveyance upon other em-
ployees. By all such activities the Respondent violated Sec-
tion 8(a)(1) of the statute.
As to his second talk with Mader, shortly before the
June 12 meeting, Ostreicher's story is that he asked her:
"How is everything? I went over to her nursing station
once and I asked her `What are the new developments and
how are things going?"' Again, I credit Mader, and I find,
contrary to his testimony, that Ostreicher again interrogat-
ed her about her intention to attend a union meeting and
again asked her to learn the identity of unioneers and re-
port such information to him, in each instance again violat-
ing Section 8(a)(1).
C. Further Violations of Section 8(a)(1)
Amato, the administrator, was the principal actor in the
Respondent's program to assure that the employees would
reject the concept of collective bargaining through the
Union. While at times in his testimony at the hearing he
denied having raised the question of the Union in individu-
al conversations with employees, or said he could not recall
if it was he who invited them into private talk, and, indeed,
attempted to create the impression that he assured the em-
ployees of his neutrality in the entire matter, Amato's final
admissions of his total activity adds immeasurable credibil-
ity to the testimony of the employees as opposed to his.
This, apart from the fact that again and again he avoided
direct answers to plain factual questions and instead
launched upon extended exculpations of his activities. Am-
ato said that during the month or so before the election he
called a number of employees, at least 15 he remembered,
into the therapy room so that he could talk to each
alone-a technique which he described as "a one to one
basis." In each interview he handed the employee leaflets
prepared by the Respondent-others distributed elsewhere
to all the employees-as written antiunion propaganda.
From the record transcript: ". . . would it be fair to say
that your purpose in calling them in to speak to them indi-
vidually was with the hope of persuading them to vote
against the Union? The Witness: In a roundabout way, I
would say, Your Honor, yes." It is against these statements
by Amato that his denials , or oblique evasions of the direct
testimony of the employees, must be appraised.
Madeline Miller, the nurse promoted to supervisor be-
fore the hearing, was at the representation case hearing on
April 23, assisting the Union's lawyer; at that time she was
a part-timer working from 5 to 9 p.m. She testified that
when she came to work later that day Amato called her
into his office and "wanted to know why I wanted to join a
union . . . or why the nurses wanted to join the union."
She answered "I was interested in the benefits that the
Union could offer me. Being employed there as a part-
timer I was not receiving any benefits." Amato then asked,
still according to Miller, what hours she worked, and when
the nurse told him ". . . five days a week from 5:00 to 9:00
..." he came back with "I was a full time part-timer and
should be receiving some benefits." To this Miller an-
swered "that is great." But, when Amato told her the bene-
fits he was talking about were an old story in company
policy, and he could prove it, he pretended to look for the
papers in his office desk but could not find them. (In fact,
the Respondent produced no such documents in evidence
later at the hearing.) Miller's testimony continues that Am-
ato also said, "He did not understand why we wanted to
join a union . . . he said that as professional people, he felt
that we could have dealt with management. . . . He also
asked me if I would speak to some of the nurses and see if
we could draw up some sort of benefits in the way of what
the nurses wanted. I said I could not do that because that
was not my position. . . . It was would I speak to the nurs-
es to see what they wanted. "Q. Did Mr. Amato say that
he was surprised that you were one of the ring leaders? A.
Yes, he did. He said he knew who the ring leaders were and
he was surprised that I was one of them." Two days later,
still according to Miller, Amato telephoned her at home to
say "he would offer me a position as supervisor," and she
refused it.
About his talk with Miller, Amato started by saying that
he could not recall if he called her or if she had invited
herself. He denied any direct questioning of the employee,
any proposals that she formulate demands for the nurses,
or any talk about what the other nurses' demands might
be. He said it was she who asked what the benefits for
part-timers were, and that he told her there were proper
benefits which he would show her in writing, but that when
he looked for them he could not find them. Amato made
no reference to the telephone call later nor to any offer of
a supervisory job.
Miller now was one management representative talking
about another. I do not credit Amato. I find, on the basis
of Miller's testimony, that the administrator questioned the
then rank-and-file nurse about her union activity, asked
her about the union activities of others, and invited her to
join with other employees and bargain directly with the
company about their conditions of employment, and when
this request failed, attempted to bribe her with advance-
ment to a supervisory position towards that end. By all of
these acts of Amato's the Respondent violated Section
8(a)(1) of the Act.
Marie Engel testified about a number of personal inter-
views with Amato from April to June; she recalled three
specifically. She said at the first, late in April, Amato
"wanted to know whether I was for or against the union.
He wanted to know what the union could do for me and
could not do. He wanted to know all the promises that it
was making. . . . he asked me if I was attending union
1480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meetings . I told him that my husband would not allow me
to go . He said that he knew that there were particular ones
who were attending the meetings . He said it was Mrs. Mor-
ris, Mrs . Schoenberg, and Mrs . Farreny. He called them
rebel rousers."
Engel was called in again by Amato late in May. "He
then said, 'Again , what is the union going to do for you.'
He wanted to know what it could do and could not do. He
gave me pamphlets . He told me if the union did not come
through , then we would get anywhere from 15 cents to 25
cents an hour raise."
Finally, 2 weeks before the election , in another private
interview : "He said, 'Mrs. Engel , did you make up your
mind and do you know how you are going to vote?' I told
Mr. Amato I was not sure . I said, 'My husband has some
doubts and I have doubts.' At that time he said 'I would
just like you to know I have gathered 19 no votes . It would
be to your advantage , since the majority of the nurses are
going to vote no, that you also vote no.' "
Amato recalled these interviews . At times he denied
Engel's testimony about asking how she would vote, if she
was going to meetings , or if others were going . There are
also very revealing admissions in his testimony , however.
"They (Engel and another girl who was also present) were
going over the (union) constitution.... I wanted to know
if they were aware whether there was a union constitution.
Were they aware that the union could call them out on
strike and that there were fines and fees that they could be
assessed , and so forth . That was the conversation at that
time." "Q. Did you ever ask her which way she was going
to vote? A. Never outright did I ask her how she was going
to vote, no." Asked directly had he told Engel he knew
who was going to union meetings , Amato answered: "I do
not recall ." As to another meeting with Engel : " I believe in
the second meeting I was discussing the P and L or Profit
and Loss financial statement of the union and in one of the
statements I pointed out where the union was in trouble
and in the hole. As far as what they had done for the union
personnel in that column , it was absolutely blank . Appar-
ently they had done nothing for their people ." Amato de-
nied making any promises at all to Engel.
I credit Engel , and I find that the administrator interro-
gated her repeatedly about how she was going to vote in
the union election , asked her whether she was attending
union meetings , told her he knew who was doing that and
even named the individuals , and promised her that the em-
ployees would receive a raise in pay if they voted against
union representation , all in direct violation of Section
8(a)(1).
D. The Discharge of Morris and Schoenberg
Schoenberg was the first to start concerted activities in
the nursing home . In January she contacted an out-of-town
organization called the Nurses Association and, together
with Mrs . Morris, distributed that organization's pam-
phlets among the employees. When it developed that the
association limited itself to representing registered nurses,
Schoenberg and Morris decided that the Retail Clerks
Union would be better . With this , Mrs. Morris , in Febru-
ary, contacted Joseph Rago, business agent of that Union,
who brought her a supply of cards. Starting the next day
Morris and Schoenberg distributed the cards among the
nurses and nurses aides and solicited signatures inside the
nursing home. Both Morris and Schoenberg attended all
the union meetings that were held and, as part of the union
group, were present on April 23 at the Board hearing held
on the representation petition previously filed.
On the evening of May 1, Mrs. Dilullo, director of nurs-
es, called Morris at home to say Ostreicher, the owner,
wished to offer her a supervisory position. Dilullo ex-
plained that she expected to be out quite a while for health
reasons and that her assistant, Doneghy, would need help
during her absence and this was the reason why the offer
was being made. Morris answered she believed the Re-
spondent wished only to be in a position to discharge her
as a supervisor, and therefore refused the offer. Dilullo said
the pay would be more, and raised the ante again after
Morris again refused. Morris held firm in rejecting the of-
fer.
Morris was called to the office the next day, where she
first talked to Doneghy, the assistant to Dilullo. Morris
repeated her reason for rejecting the offer of promotion
and she testified without contradiction from Doneghy who
agreed with her that the Respondent's objective was just
that. Doneghy even recalled that during a prior absence of
Dilullo-as long as 4 to 6 weeks-there had been no need
for help in the office. At this point Ostreicher came to the
office and repeated the offer. Amato came and both he and
Ostreicher told Morris her fears were unwarranted. Os-
treicher did say, however, that while "he did not mind if
the nurses had a union," he was "concerned" that they
have the right one; "He did not feel that Retail Clerks had
proved their ability to represent nurses as professionals."
To this Morris disagreed, saying "Somebody had to be first
so why not us?"
Three days later, on May 5, Ostreicher discharged both
Morris and Schoenberg. A tension developed that day in
the work duties of the two registered nurses ; there was an
extraordinary shortage of essential supplies vitally neces-
sary for the care of patients. The nurses, overseers of the
nurses aides , were responsible for the welfare of convales-
cents in all stages of disability. There were no linens, towels
were lacking, the ice machine was broken, the hot water
failed, and there was a shortage of diapers. The nurses were
hard put to see that everyone was cared for. In the course
of the afternoon an emergency stretcher case patient was
brought by ambulance and, because of the materials short-
age, he waited, with his family standing about in an embar-
rassing situation. Another patient was cut and bleeding.
While Schoenberg applied compresses to him, Morris
called the man's doctor for instructions. The doctor told
her to put ice on the wound, but there was no ice available.
In one of the rooms the daughter of a patient was searching
for her mother's belongings-a hearing aid, dentures, etc.
When Morris saw her and entered the room to inquire, she
found old food in the closet drawer and removed it. Os-
treicher, who happened to be passing, saw the visitor and
told Morris that the aides, not the visitors, should clean the
drawers. Morris returned to the room but the visitor said
she liked to do things for her mother. To Ostreicher, Morris
then said, ". . . why don't you see that we have linens and
MAPLE SHADE NURSING AND CONVALESCENT CENTER 1481
hot water and ice and things that we need to take care of
the patients instead of worrying about minor things like
this."
While all of this was going on, the two nurses found
themselves together at the nurses' desk of their wing. Os-
treicher approached and asked , "What are all these com-
plaints you have?" The nurses listed all the necessary mate-
rials and equipment that they urgently needed . An aide
approached and complained about a patient who had been
lathered but could not be shaved because there were no
razors. Schoenberg told her to go to the parking lot and get
a supply from Schoenberg's car; Schoenberg regularly
keeps a personal reserve supply of razors, and other things
needed for such emergencies . Ostreicher then called Amato
and ordered him to send someone for razors . Amato did
that , and also sent someone else to obtain necessary linens
somewhere.
In the general talk voices were raised . Recalling the
scene , Ostreicher testified that at one point Morris waved
her finger back and forth in front of his face saying "Mind
your own business. Better you should take care of hot wa-
ter and giving us linen and giving us ice cubes and other
things ." He also said Schoenberg complained of having to
pay for the razors herself . Schoenberg denied having said
precisely this , and Morris denied telling the owner in so
many words to mind his own business , or waving her fin-
gers at him . But the women did admit voices were "elevat-
ed," and that there was a certain amount of resentment
expressed at the owner's apparent criticism of them during
that trying afternoon. About half an hour later Ostreicher
told Amato to fire the two women and he did. They were
ordered out of the nursing home then and there.
The complaint alleges Ostreicher 's real reason for dis-
charging the nurses was to remove them from the home
and to put a stop to their union activities, and I find that
the record in its entirety amply warrants the conclusion.
Certainly I do not believe that, had they not been the union
leaders , or the "rebel rousers" as Amato called them, the
Respondent would have sent away the two nurses at that
moment . The fact that Ostreicher said at the hearing he did
what he did only because "he was looking like a fool," has
little meaning to me for , as already stated , he was not a
truthful witness.
The realities are that Ostreicher does the business he
does only because there are nurses like Morris and Schoen-
berg who have the capacity and the will to do the kind of
work required to care for sick people in all stages of disa-
bility. It is hardly necessary to say that he would be unable
to diaper an adult with regularity or even to check on the
nurses aides to be sure they perform the service ade-
quately. He therefore knew and has always known that
part of the quid pro quo for which he pays them is that they
will be subject to pressure and human tension when the
tools necessary for them to discharge the unpleasant and
unselfish duties he places upon them are missing. When
Morris reminded him that it was his responsibility to make
the linen , hot water , ice, and diapers ready when needed-
even assuming she articulated the message with the phrase
"mind your own business ," she was only reminding him of
their agreement-he to supply the tools and she to do the
dirty work. I do not believe he was surprised or offended at
all to have her talk so directly. If Ostreicher knows one
thing, it is that the work demands on his staff can try a
woman 's soul.
He also knew that a number of essential supplies were
missing that day. The proof is not only in the nurses' de-
tailed testimony but in his and Amato' s admissions. He
said that the heater had been repaired during the night and
the ice machine had been fixed during the morning, but his
testimony is not precisely reliable. Amato did send out for
linen that day. As to Ostreicher's testimony that Schoen-
berg told him she had to pay for some equipment herself, it
is true her personal property was used for patients then and
there and that Amato also sent out for razors at the same
time. In short, the owner knew that whatever complaints
the nurses were voicing were of the Company's doing, not
theirs. If they complained at all, it was out of frustration at
not being able to perform the onerous duties which he
wanted above all for them to perform. And finally, he also
knew they were doing a good job because that very day a
letter had arrived from the State Department of Institu-
tions, complimenting the home on the quality of the care
given to patients. Indeed Amato had just told the ladies to
show it around and to "post it in a prominent place where
everybody could be able to see it." In their 3 years of em-
ployment neither nurse had ever been criticized for any-
thing. Schoenberg, even on the basis of Ostreicher's story,
had given him no cause for discharge at all. If she said she
had had to pay for razors out of her own pocket-a state-
ment she denied-it is a fact she had paid, and Ostreicher
knew it.
There was urgent need of nurses at the time. Doneghy,
the assistant to the director of nurses , in whose office Ama-
to informed the two women of Ostreicher's decision to dis-
charge them, said she would refuse to carry out the instruc-
tions because there "would not be coverage on the wing for
the weekend." Against this there is the Respondent's clear
hostility towards the union movement, its clear knowledge
of Morris and Schoenberg's leading part in it, and its
proved willingness to resort to illegal tactics to keep out the
Union, as shown by the many violations of Section 8(a)(1)
of the Act found above. On one day, about May 1, Morris
is the best nurse in the place , most qualified among all
available nurses to become an immediate supervisor. With-
in 5 days she becomes anathema to the owner after refus-
ing the offer of promotion to management status. I am
convinced Mrs. Morris divined it correctly, that Ostreicher
aimed in the first instance to remove her from the entire
arena of unionism . I find that the Respondent violated Sec-
tion 8(a)(3) when it discharged Morris and Schoenberg.
The day after the two discharges, when Nurse Barbara
Farrenyy, came to work, Amato called her into his office to
talk to her about what had happened to Morris and
Schoenberg. Farreny was the third of the principal activists
on behalf of the Union; she too had been at the Board
hearing on the representation petition and, as Amato him-
self related, she had a number of times spoken to him
about her very strong attachment to the Union. Farreny
testified that Amato said he wanted to explain the facts
about the two discharges and detailed the shortages of ma-
terials and Ostreicher 's resentment of the nurses' way of
talking to him about them. When she said the dismissals
1482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had been a mistake because Morris was a good nurse, still
according to Farreny, Amato asked did she think Morris
was "fired because of union activities?" Farreny said she
thought so, but Amato said no and then proceeded to ask
"what I hoped to gain by joining the union." The nurse
answered "better working conditions," and then Amato
said, "Why can't we sit down and talk about this?" and
"What do you intend to do if the Union does not get in?"
When Farreny replied she would resign her job, Amato
closed the interview with "Well, I would hope so."
As to this interview, Amato's version is that he spoke
privately with Farreny because she had been on vacation
when the two nurses were fired and he wanted to inform
her of the fact. He added that, when "Mrs. Farreny infer-
red that she would probably be the next one to go," he told
her "you will not be. We have no intention of firing any-
body who is involved with the union." Amato added that
there was nothing else said that day between the two. I do
not credit him. On his own admission the subject of the
Union was in his mind, for his version puts the subject in
his mouth first. More important, he also said there were
other nurses who did not know of the two discharges and
that he informed them by simply talking to them wherever
he chanced to run into them. He had no rational explana-
tion otherwise for singling out the remaining union leader
for special talk. It was a perfect moment for interrogating
her also about her union sentiments and even for propos-
ing direct dealing with management in place of the now
dangerous, as shown by the dismissal of Morris and
Schoenberg, union activities. I credit Farreny, and I find
that by interrogating her and by inviting her to deal with
the Respondent individually at that time, Amato again vio-
lated Section 8(a)(1) of the Act.
E. Discharge of Marie Engel
Engel started with the Respondent late in January 1975
and on September 16 was told she was discharged; she left
the Company 3 days later. More so than in the case of
Morris and Schoenberg, the story of her trials and tribula-
tions vis-a-vis supervisors was told as a mixture of fact,
fancy, argument, broadside accusations, and highly gener-
alized defense disputation. Madeline Miller by this time
had become a supervisor but was not working on the same
shift as Engel. Faith Derrickson, the director of nurses who
had been hired only the month before the discharge,
charged Engel with all sorts of incompetence and disregard
of duty. As they went along, however, often sitting mate
while pondering what answers to give to purely factual in-
quiries, they kept admitting tangentially that the errors
they detailed could as well have been committed by others,
and not Engel personally. She, on the other hand, in most
instances did not directly deny specific errors or failings,
but mixed her answers with explanations of why conditions
were such that her failure to fill in all summaries and re-
ports of patient treatment, to feed some patients on time,
or to be available when needed, was the result of just pres-
sures on the job beyond her control.
She had her faults; she did not perform that optimum
discharge of all assignments that an employer might desire.
At the same time there are related facts, clear on this rec-
ord, that make it impossible for me to believe this woman
was fired for the reasons advanced by the Respondent at
the hearing . To start with, the pinpointed errors , absences,
or indelicate personal appearance (as described by the di-
rector of nurses) were an old story . There is a system of
giving employees green slips as written warnings for unsat-
isfactory work, and also a system of warnings for absentee-
ism. Engel was never given any such warnings ; she was
discharged without the least advance notice. When Der-
rickson discharged her for all the failings she painstakingly
detailed later , she nevertheless agreed to give her a layoff
slip instead , which would mean no black mark on her em-
ployment record . Was this an act of kindness-while say-
ing at the hearing that the woman 's "neck was dirty," "her
pant suits did not meet in the middle ," and she was too
"large" to hold professional status-or was it because Der-
rickson knew in her heart the lady did not deserve to be
fired?
Derrickson stated her reasons in the following words:
.. a record of chronic absenteeism . . . her appearance
was nonprofessional . . . she was not doing the job .. .
not delivering patient care ...." On cross-examination
Derrickson then admitted the following : ( 1) the "level of
charting" was a "general problem" she had had to discuss
with ' various nurses ; (2) she "never had any specific dis-
cusssion with her (Engel) regarding her appearance"; (3)
"we were having a shortage of professional staff." Derrick-
son also stated clearly it was she who made the decision to
discharge Engel "on my own ." Amato , the admitiistrator,
who followed her to the stand , said instead it was he who
instructed Derrickson to fire the nurse . I do not believe
these witnesses and I do not believe Engel was discharged
because of her failings on the job.
But this is an unfair labor practice case, with the Em-
ployer accused of having been motivated by a precise ille-
gal motive-antiunionism . And while Board law general-
ly does not speak in terms of presumptions of innocence, it
does say the burden is upon the General Counsel to prove
the illegal objective by a preponderance of the substantial
evidence on the record as a whole. N.L.R.B. v. Glen Raven
Silk Mills, Inc., 203 F.2d 946 (C.A. 4, 1953). If the employ-
er asserts an objective reason , perfectly lawful as stated, for
the discharge , but does not prove it with evidence , you pay
no attention to its affirmative defense . But by like reason-
ing, if the complaint alleges an improper purpose in the
employer's mind but the contention is not proved by con-
vincing evidence , there remains no more than an unsup-
ported contention , which cannot support an unfair labor
practice finding . Engel was not an active supporter of the
Union; indeed she told management so a number of times.
She never went to a meeting . It was improper of Adminis-
trator Amato to have asked her, but the fact remains she
gave him no reason to fire her on that basis . Her sole parti-
cipation in union life is that she signed her name, with
many others , to a union leaflet distributed before the elec-
tion. There is no basis for believing the Company knew she
had one day signed a union card . In sum , there simply is
no evidence worthy of note that management directed, or
intended to direct , its union animus against her as an indi-
vidual . And, as a final pertinent fact that cannot be ig-
nored, she was fired about 3 months after the June elec-
MAPLE SHADE NURSING AND CONVALESCENT CENTER 1483
tion. Between the period of June and earlier, when the
many violations of Section 8(a)(1) were taking place, and
the day of Engel's discharge, no significant acts further
indicating union animus by management were committed,
so far as this record shows. Therefore, a critical element
normally supportive of improper or illegal motivation-
timeliness-is missing in this case.
Not without some hesitation, I find the probative evi-
dence insufficient here to prove thecomplaint allegation
that Engel was discharged because of her union activities,
and shall therefore recommend dismissal of the complaint
as to her.2
Case No. 4-RC-1 1539
Objections to the Election
When the Company filed objections to the June 26,
1975, election, it already stood as a named Respondent in
the Union's charge in Case 4-CA-7387, originally filed on
May 7 and amended on June 17. Its listed objections, as
filed, reveal a blunderbuss approach, hurling charges of
misconduct against others in all directions, apparently, as it
later developed, largely without basis in fact. The Regional
Director had ordered a hearing on all the objections, but at
the very start of the hearing, before any evidence was re-
ceived, the Respondent withdrew four of the nine charges.
Later, while the hearing was in progress and after certain
hearsay evidence had been received with respect to another
objection, it withdrew that one also.
On the evidence appearing in this record, I find no merit
in any of the remaining objections. Objection 1 says the
Union improperly waived its initiation fee only for those
employees who voted in favor of the Union in the election.
There was talk at union meetings of all these employees
not having to pay initiation fees if the Union became es-
tablished as exclusive majority agent and succeeded in ob-
taining a signed contract with this employer. Mrs. Morris
quoted Union Representative Rago as saying: ". . . any-
one who was initially involved in the union would not have
to pay initiation fees. Anyone who would be subsequently
employed after the union was in fact in the Nursing Home,
would then, of course, have to pay initiation fee." From
Schoenberg's testimony: ". . . he [Rago] told us that the
policy of the union is that with any new union that is
formed, the procedure was that they would not pay an
initiation fee for the first group. Anyone who came in after
that, would surely pay an initiation fee." From the testimo-
ny of employee Miller "he said the initiation fee would be
waived for those people who have joined the union initial-
ly. This was because we were a newly organized group
.... Anyone who joined after 30 days, I believe that was
the time, would have to pay an initiation fee. It was a
general waiver." I deem the essential purport of all this
testimony as supportive of Rago's recollection, at the hear-
ing, of what the Union gave the employees to understand
on this subject before the election. "There would be no
initiation fee for new members coming in the union... .
And there would be no dues until you reach a contract.
Once the Union is an established unit, and you have a
contract, anyone who follows that, would have a 30 day
period during which the Company could dismiss. After the
30 day period, those who came into the union would have
to pay the initiation fee." Rago denied having told any
employee she must sign a union card, or vote for the Union
in ordered to be spared payment of initiation fees. The
Union's "waiver of dues applied until a contract was nego-
tiated," and was therefore permissible. L. D. McFarland
Company, 219 NLRB 575 (1975). See N.L.R.B. v. Savair
Manufacturing Co., 414 U.S. 270 (1973).
Objection 2 says the Union offered bribes of "$100 to
$200" to buy support of the Union and for prounion votes.
The evidence offered in support of this objection consists
of Miller's testimony about a telephone conversation she
had with Union Representative Rago a few evenings be-
fore the June 12 union meeting. Rago had learned that she
was meeting privately with the Company and called to try
to dissuade her from doing that. She said she denied she
was "about to enter into negotiations with management,"
but told him instead she only "wanted to hear what they
had to say." According to her, Rago then said: ". we
help those who help us. We will give you $100 to $200 to
help organize the home. Those that help organize the home
get paid." The following, however, is also from Miller's
testimony: "Q. Did he offer you $100 or $200. A. He did
not say my name directly. He said `Those help organize
homes get paid, being it $100 or $200.' Q. Is that the only
reference made to the $100 or $200? A. Yes. Q. Did he say
there was anything in it for you? A. No. Q. Or for any
other employee? A. That is correct."
Miller did meet with management the next day, where,
in the office, there were also Amato and Dr. Moliken, the
home medical director, for the Company. Miller was ac-
companied by Sturtzman, also a nurse. She said the two of
them had prepared in writing, and presented for the
Respondent's consideration, proposals for "salary, staffing,
vacations, etc." The next day, June 12, there was the union
meeting to which she brought her husband. The record
shows clearly that there, Miller, her husband, not an em-
ployee of the Respondent, and Sturtzman disrupted the
meeting, by, at the least, heckling the union organizer.
"... [M]y husband was shooting questions at them left
and right." In a huff the three of them then walked out of
the meeting.
Rago recalled calling Miller on the phone and telling her
everybody was upset because she seemed "to be turncoat-
ing on them." He denied having spoken to her about mon-
ey payments at all during that conversation; he also denied
ever having said anything to any employee about money
payments in return for support.
On the question of any talk about money during that
evening telephone conversation I credit Rago over Miller
and therefore find no merit in the Company's Objection 2.
Objection 4. Here the Union is charged with having ap-
pealed to religious prejudices at union meetings-appar-
ently the same one on June 12 where Miller and her group
tried to embarrass the organizer-by "uttering" antisemitic
remarks, and by ratifying and condoning such remarks
2 Cf. W. J. Dillner Transfer Co., 221 NLRB 1022 (1975). made by employees. Ostreicher is Jewish and speaks Eng-
1484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lish with a very marked foreign accent. Morris said that
while Sturtzman was reading a question directed to Rago,
she, Morris, may have tried to speak "in a very thick heavy
Jewish accent." She added employees had done this before
at other meetings. At one point it seems Sturtzman was
having difficulty reading whatever he had in his hand, and
some employees said, "Of course he can't read it, because
it is written in Yiddish." It will be recalled Sturtzman had
just the day before been in the Company's office with Mill-
er discussing written proposals to bypass the Union Mor-
ris, the witness, said there was much laughter at this remark
about Yiddish writing. The only remaining evidence said to
support this objection is Miller's testimony that "Jewish
accents were attempted"; but she also added everybody
laughed and that Rago himself uttered no antisemitic re-
mark
I am reminded of an ancient line of Board cases that
speak of union activities not being any form of tea party.
The Union did nothing here to inflame irrational preju-
dices, and the employees laughed at their own jokes There
is no basis in this evidence for finding disrespect on the
part of the employees towards their employer. I find no
merit in this objection either.
Objection 9 Shortly before the election the Union pre-
pared a printed leaflet urging adherence. Rago urged em-
ployees to sign their names on it in longhand and 14 of
them did. He told them at the time their names on the
leaflet would evidence their sentiments in favor of the
Union, but also denied, and no one contradicted him, that
he said anything else about it. The objection charges him
with also having said that failure to sign would indicate
opposition to the Union He did not and the objection is
therefore without merit. I would make the same conclusion
had he said failure to sign indicated indifference or even
opposition to the union movement.
IV. THE REMEDY
It having been found that the Respondent committed
diversified unfair labor practices, it must be ordered to
cease and desist from such conduct in the future. Morris
and Schoenberg, having been illegally discharged, must be
made whole for any loss of earnings they may have suf-
fered in consequence of the illegal discrimination against
them-backpay to bear interest at 6 percent. There came a
time when the Respondent offered full reinstatement to
Morris and she accepted the offer. There is therefore no
occasion for ordering reinstatement as to her. At the hear-
ing there was some evidence indicating the possibility that
Schoenberg may also have been offered adequate reinstate-
ment, the evidence on that point is not clear, as it may be
that the offer made was not adequate under Board law.
Accordingly, I shall order regular reinstatement as to
Schoenberg
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations of Re-
spondent described in section 1, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
CONCLUSIONS OF LAW
The Challenges
The Employer challenged the ballots of Betty Morris
and Marie Schoenberg on the ground that they were no
longer employees at the time of the balloting. As it has now
been found that both these ladies had been illegally dis-
charged before the election , it follows they were entitled to
cast ballots . Accordingly , I find that the Employer 's chal-
lenges to these two ballots must be overruled and the bal-
lots opened and counted.
The Employer also challenged the ballot of Carol Hein-
Selman , on the ground that she was no longer an employee
because she had violated company rules by absenting her-
self from work more than 3 months after the birth of her
child , having been on maternity leave at that time There is
record evidence , documents from Hemselman 's personnel
file with the Company, proving that when she left on her
maternity leave, on February 17, 1975, she was given ex-
press permission to remain 6 months, a written exception
to whatever the company rule may have been The election
having taken place on June 26 , clearly she was eligible to
vote. I find the challenge to her ballot to be without merit,
and therefore recommend that her ballot be opened and
counted
I By discharging Betty Morris and Marie Schoenberg
for engaging in union activities, the Respondent has en-
gaged in unfair labor practices within the meaning of Sec-
tion 8(a)(3) of the Act
2. By the foregoing conduct, by interrogating employees
concerning their prounion or antiunion sentiments, by in-
terrogating employees concerning their union activities and
the union activities of other employees, by asking employ-
ees to spy upon the union activities of other employees and
to inform the Company about such activities, by offering
raises in pay and other improvements in conditions of em-
ployment as reward for abandoning union activities, by
inviting employees to bargain individually with the Com-
pany as a device for coercing them away from their pro-
union sentiments, and by offering advancement to supervi-
sory positions as inducement to abandon union activities,
the Respondent has engaged in unfair labor practices with-
in the meaning of Section 8(a)(1) of the Act
3. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended.
MAPLE SHADE NURSING AND CONVALESCENT CENTER 1485
ORDER3
The Respondent, Maple Shade Nursing Home, Inc.,
d/b/a Maple Shade Nursing and Convalescent Center,
Maple Shade, New Jersey, its officers, agents, successors,
and assigns, shall-
1. Cease and desist from
(a) Discharging or in any other manner discriminating
against its employees because of their union activities.
(b) Interrogating employees concerning their prounion
or antiunion activities, interrogating employees concerning
their union activities and the union activities of other em-
ployees, asking employees to spy upon the union activities
of other employees and to inform the Company about such
employee activities, offering raises in pay and other im-
provements in conditions of employment as a reward for
abandoning union activities, inviting employees to bargain
individually with the Company as a device for coercing
them away from their prounion sentiments , or offering ad-
vancement to supervisory positions as inducement to aban-
don union activities
(c) In any other manner interfering with, restraining, or
coercing employees in the exercise of the right to self-orga-
nization, to form, join, or assist Retail Clerks Union, Local
1360 a/w Retail Clerks International Association, AFL-
CIO, or any other labor organization, to bargain collec-
tively through representatives of their own choosing, and
to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or
to refrain from any and all such activities
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act-
(a) Offer Marie Schoenberg immediate and full rein-
statement to her former position or, if such position no
longer exists, to a substantially equivalent position, without
prejudice to her seniority or other rights and privileges.
(b) Make whole Betty Morris and Marie Schoenberg for
any loss of pay or any benefits they may have suffered by
reason of the Respondent's discrimination against them
(c) 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 to analyze the amount of backpay due under the terms
of this Order.
(d) Post at its place of business in Maple Shade, New
Jersey, copies of the notice attached hereto and marked
"Appendix." ' Copies of said notice, on forms provided by
the Regional Director for Region 4, after being duly signed
by its representatives, shall be posted by the Respondent
' 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, 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
° In the event 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 "
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are cus-
tomarily posted Reasonable steps shall be taken by it to
insure that said notices are not altered, defaced, or covered
by any other material.
(e) Notify the Regional Director for Region 4, in writ-
ing, within 20 days from the date of this Order, what steps
the Respondent has taken to comply herein.
It is hereby recommended that the complaint be, and it
hereby is, dismissed, with the respect to the allegation that
Marie Engel was unlawfully discharged.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board having found, after a
hearing, that we violated the Federal law by discharging
employees because they engaged in union activities and by
committing other acts of illegal coercion.
WE WILL NOT coercively interrogate our employees
concerning their prounion or antiunion sentiments.
WE WILL NOT interrogate our employees concerning
their union activities, attendance at union meetings, or
the union activities of other employees.
WE WILL NOT ask employees to spy upon the union
activities of their fellow employees and to inform us
about the union activities of other employees.
WE WILL NOT offer raises in pay or any other im-
provements in conditions of employment as reward
for abandoning union activities.
WE WILL NOT invite employees to bargain with us
individually and directly as a device for coercing them
away from their prounion sentiments
WE WILL NOT offer advancement to supervisory posi-
tions as inducements for our employees to abandon
their union activities.
WE WILL offer Marie Schoenberg immediate and full
reinstatement to her former position, or if such posi-
tion no longer exists, to a substantially equivalent po-
sition.
WE WILL pay Betty Morris and Marie Schoenberg
for any loss of earnings they have lost as a result of
our discrimination against them, plus 6 percent inter-
est
WE WILL NOT in any other manner interfere with,
restrain or coerce our employees in the exercise of
their rights to self organization, to join or assist Retail
Clerks Union, Local 1360 a/w Retail Clerks Interna-
tional Association, AFL-CIO, or any other labor or-
ganization, and to engage in other concerted activities
for the purpose of collective bargaining or other mutu-
al aid or protection or to refrain from any and all such
activities
MAPLE SHADE NURSING HOME INC d/b/a MAPLE
SHADE NURSING AND CONVALESCENT CENTER