Multi-Medical Convalescent

National Labor Relations Board - Board Decisions

Jun 30, 1976

225 N.L.R.B. 429 (N.L.R.B. 1976)

MULTI-MEDICAL CONVALESCENT 429
Multi -Medical Convalescent and Nursing Center of
Towson and District 1199E, National Union of Hos-
pital and Health Care Employees , Retail , Wholesale
and Department Store Union , AFL-CIO. Cases 5-
CA-7287, 5-CA-7521, and 5-RC-9304
June 30, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND PENELLO
On March 24, 1976, Administrative Law Judge
Benjamin B. Lipton issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief. General Counsel filed
cross-exceptions and a memorandum in support
thereof, and Respondent filed a brief in response to
the cross-exceptions of the General Counsel.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings,' findings,' and
conclusions of the Administrative Law Judge to the
extent consistent herewith and to adopt his recom-
mended Order as modified herein.
1. The Administrative Law Judge found that
Respondent's unfair labor practices were sufficiently
egregious to warrant a bargaining order under
N.L.R.B. v. Gissel Packing Co., Inc.3 He further
found that under our decision in Trading Port, Inc.,4
the bargaining order should be dated from April 21,
' Respondent has excepted generally to the Decision of the Administra-
tive Law Judge , contending that he exhibited bias and hostility against Re-
spondent which resulted in prejudice to Respondent and a denial of due
process We have carefully examined the record and find no basis for these
exceptions We have further carefully reviewed the instances in which the
Administrative Law Judge limited certain testimony , to which Respondent
has also excepted The only exclusion of possibly relevant evidence was that
which Respondent sought to adduce to impeach the testimony of witness
Conners That evidence , intended to impeach Conners' credibility generally,
concerned the circumstances under which he left Respondent's employ, and
the Administrative Law Judge stated that at most this would discredit Con-
ners only as to the facts concerning his departure , which were not in issue
It is well established that an Administrative Law Judge can discredit a
portion of a witness ' testimony without discrediting the witness generally
Under the circumstances , therefore , we do not find that the exclusion of this
evidence was prejudicial
2 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 (CA 3, 1951) We have carefully
examined the record and find no basis for reversing his findings.
3 395 U S 575 (1969)
1975, the date on which the Union had authorization
cards from the majority of Respondent's employees
in an appropriate unit, as well as the date that Re-
spondent embarked on a clear course of unlawful
conduct. We agree with these findings.
The Administrative Law Judge found it unneces-
sary to reach the issue of whether Respondent violat-
ed Section 8(a)(5) of the Act because it was not al-
leged in the complaint. We disagree. Although the
complaint did not allege an 8(a)(5) violation, we
deem it appropriate to make such a finding here inas-
much as that issue was fully litigated at the hearing
and all of the elements of such violation are fully
established by the record.'
Thus, the parties stipulated, for purposes of the
representation proceeding, that on April 21, 1975, the
Petitioner orally requested recognition as exclusive
collective-bargaining agent and that on the same
date the Employer orally refused to grant such recog-
nition unless and until the Petitioner was certified by
the Board. The parties further agreed as to the appro-
priateness of the unit. Additionally, the record estab-
lishes that on April 21 the Union had authorization
cards from 20 of Respondent's 39 unit employees.
Based on the foregoing we find, contrary to the
Administrative Law Judge, that Respondent violated
Section 8(a)(5) of the Act by refusing to recognize
and bargain with the Union on and after April 21,
1975.6
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent , Multi -Medical Conva-
lescent and Nursing Center of Towson , Maryland, its
officers , agents, successors , and assigns , shall take
the action set forth in the said recommended Order,
as modified below:
1. Insert the following as paragraph 1(e) and relet-
ter the present paragraph 1(e) as 1(f):
"(e) Refusing to bargain collectively with District
1199E, National Union of Hospital and Health Care
Employees , Retail, Wholesale and Department Store
Union , AFL-CIO, as the exclusive bargaining repre-
sentative of the Respondent's employees in the fol-
lowing appropriate unit:
219 NLRB 298 (1975).
5 Respondent cannot claim surprise by this additional finding inasmuch
as the litigation of the remedial bargaining order, including the Union's
majority status , the demand, and the refusal, adequately apprised Respon-
dent of the likelihood of such a finding
6 Schwab Foods, Inc, d/b/a Scotts IGA Foodliner, 223 NLRB 394 (1976)
225 NLRB No. 56
430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All regular full-time and regular part-time ser-
vice and maintenance employees, excluding reg-
istered nurses, licensed practical nurses, office
clerical employees, professional employees,
guards, and supervisors as defined in the Act."
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT ask you anything about your
union activities, or the union activities of your
fellow employees, in a manner which would
coerce you regarding your rights under the Na-
tional Labor Relations Act.
WE WILL NOT threaten you with discharge, lay-
off, or other punishment because of your activi-
ties or sentiments in behalf of District 1199E,
National Union of Hospital and Health Care
Employees, Retail, Wholesale and Department
Store Union, AFL-CIO, or any other labor or-
ganization.
WE WILL NOT assign or use our security guards,
or any other agents, to spy and report to us on
your union activities or sentiments.
WE WILL NOT discourage membership in, or
activities in behalf of, District 1199E, National
Union of Hospital and Health Care Employees,
Retail, Wholesale and Department Store Union,
AFL-CIO, or in any other labor organization,
by discharging employees or in any other man-
ner discriminating in regard to hire or tenure of
employment or any term or condition of em-
ployment.
WE WILL NOT refuse to bargain collectively
with District 1199E, National Union of Hospital
and Health Care Employees, Retail, Wholesale
and Department Store Union, AFL-CIO, as the
exclusive bargaining representative in the appro-
priate unit described below. The appropriate
unit is:
All regular full-time and regular part-time ser-
vice and maintenance employees, excluding
registered nurses, licensed practical nurses, of-
fice clerical employees, professional employ-
ees, guards, and supervisors as defined in the
Act.
WE WILL NOT in any other manner interfere
with , restrain , or coerce you in the exercise of
your rights guaranteed in the National Labor
Relations Act, which include:
To engage in self-organization
To form, join, or help unions
To bargain collectively through a represen-
tative of your choosing
To act together for collective bargaining or
other mutual aid or protection
To refuse to do any or all of these things.
WE WILL, upon request, recognize and bargain
with District 1199E, National Union of Hospital
and Health Care Employees, Retail, Wholesale
and Department Store Union, AFL-CIO, as the
exclusive collective-bargaining representative of
our employees in the appropriate unit. And, if
an understanding is reached, embody such un-
derstanding in a signed agreement.
Since it has been found that we unlawfully
discharged Wilma Peay and Vera Owens-WE
WILL offer them immediate and full reinstate-
ment to their former jobs or, if such jobs no lon-
ger exist, to substantially equivalent jobs, and
WE WILL pay them for the earnings they lost be-
cause of the discrimination against them, plus
6-percent interest.
All our employees are free to become or remain, or
refrain from becoming or remaining, members of a
labor organization.
MULTI-MEDICAL CONVALESCENT AND
NURSING CENTER OF TOWSON
DECISION
STATEMENT OF THE CASE
BENJAMIN B. LIPTON, Administrative Law Judge: Cases 5-
CA-7287 and 5-CA-7521 present a consolidated com-
plaint by the General Counsel I alleging that Respondent
engaged in certain independent violations of Section
8(a)(1); that Respondent discharged Wilma Peay and Vera
Owens in violation of Section 8(a)(3); and that a remedial
bargaining order (based on evidence of a majority of union
authorization cards) should be issued. Respondent denies
the alleged violations. In Case 5-RC-9304, pursuant to a
Decision and Direction of Election by the Regional Direc-
tor, an election was conducted on May 14 in a unit general-
ly consisting of the unlicensed service and maintenance
employees at Respondent's nursing home. The results of
the election show that of 34 eligible voters, 15 cast votes for
the Union, 16 cast votes against the Union, and I vote was
challenged. The Union filed timely objections. On July 25,
i All dates are in 1975 , unless otherwise shown The Union's charge in
Case 5-CA-7287 was filed on May 12, as to which the complaint issued on
July 9 and was amended on July 25 In Case 5-CA-7521, the charge was
filed on September 10, amended on October 29, and the complaint issued
on the latter date
MULTI-MEDICAL CONVALESCENT 431
the Regional Director issued his formal report on the ob-
jections. As to Objection 1, he found substantial and mate-
rial issues of fact and ordered consolidation of the com-
plaint and representation cases for the purpose of hearing.
Certain of the election objections in issue are broadly coex-
tensive with the complaint allegations of Section 8(a)(1).
On September 16, 24, and 25 and October 21, 1975, and
January 14, 1976, a hearing in this consolidated proceeding
was held before me in Baltimore , Maryland. Posthearing
briefs from the General Counsel and Respondent have
been duly considered.
Upon the entire record in the cases, and from my obser-
vation of the demeanor of the witnesses, I make the follow-
ing:
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION
Respondent is engaged in the operation of a proprietary
nursing home in Towson, Maryland. During the year pre-
ceding issuance of the initial complaint , Respondent had a
direct inflow in interstate commerce of materials valued in
excess of $50,000, and had gross revenues in excess of
$100,000 . It is admitted , and I find , that Respondent is
engaged in commerce and that District 1199E, National
Union of Hospital and Health Care Employees, Retail,
Wholesale and Department Store Union, AFL-CIO, here-
in the Union is a labor organization , within the meaning of
the Act.
in the representation case . As already indicated , a directed
election was held on May 14, following which the Union
filed objections alleging interference with the election.
Allegations appear in the testimony that threats or pre-
dictions of layoff and firing were made to employees by
particular supervisors and an agent of Respondent . Relat-
ing to the precise question of whether an employer engaged
in permissible predictions of adverse affects of unionism,
as contrasted with coercive and unlawful threats , the Su-
preme Court in Gissel was explicitly sensitive to "the eco-
nomic dependence of the employees on their employer and
the necessary tendency of the former, because of that rela-
tionship , to pick up intended implications of the latter that
might be more readily dismissed by a more disinterested
ear." 3 It is well to note that here the unit employees are
essentially unskilled menial help and, within my observa-
tion, are relatively unsophisticated. Therefore, it is fair to
say that these employees are more than normally apt "to
pick up intended implications" and statements made to
them without comprehending subtle distinctions. These are
circumstances which are properly part of the context in
which the issues arose.
In a defensive vein , Respondent seeks to portray an im-
age that it reacted benevolently to the Union's organiza-
tional efforts and that it was receptive to recognition of the
Union on the basis of a voluntary card check. I regard such
arguments as a sham, particularly in light of Respondent's
actual conduct and tactics hostile to union representation,
and clearly intended to thwart the employees' support of
the Union.
II. THE UNFAIR LABOR PRACTICES
A. Introductory Statement
Respondent's facility involved herein commenced opera-
tion on July 1, 1974. Alex and Rose Burkoff, husband and
wife , are Respondent 's "administrators"; i.e., holding the
highest management positions. Rose Burkoff, as she testi-
fied, "is" the administrator at another facility called the
Mt. Sinai Nursing Home , at an undisclosed location.2 She
gave testimony, in substance: The Union has had a collec-
tive-bargaining agreement with Mt . Sinai since 1969; she
and the Union 's president had a "gentleman 's agreement"
reached several weeks before July 1, 1974, that he would
"let her get off the ground floor" before he tried to union-
ize Respondent, and Respondent would recognize the
Union on the basis of a card count; and on February 26 a
meeting took place at the office of Respondent's counsel
for the purpose of conducting a card count, and no agree-
ment was reached that the Union had established a card
majority. It is evident that, on December 23, 1974, the
Union filed a representation petition, clearly indicative
that the Union was proceeding with its organizational cam-
paign at Respondent. For reasons not shown, the Union
withdrew its petition on January 20. On April 7, the Union
again filed a certification petition. On April 21, the parties
met at the Board office and entered into a stipulated record
2 The corporate or financial relationsbip , if any , between these two facili-
ties has not been shown.
B. Restraint and Coercion
1. Mildred Shiflett
Shiflett is the supervisor of housekeeping, with about six
employees in that department. During the morning on
February 28, agents of the Union, David Simon, Carolyn
Green and, one other, were on the premises of Respondent.
After a telephone call to Burkoff, who was then away from
the facility, certain supervisors made arrangement to per-
mit the employees who so desired to meet with these agents
in the employees' lounge.4 The employees were paged by
loudspeaker. Employees Josephine Medley, Eunice Bran-
don, and Vera Owens testified for General Counsel; em-
ployee Rosalee Thompson and Supervisor Shiflett testified
for Respondent. Each identified the others as being pres-
ent. Directly concerned with the question of whether Shif-
lett engaged in coercive conduct, my findings are in the
affirmative.
Shiflett spoke to some of the housekeepers in the lobby
before they entered the employees' lounge to meet with the
union agents. I credit Brandon's testimony , in substance as
corroborated, that Shiflett said Burkoff did not want the
3 N L R B v Gissel Packing Co, Inc, 395 U S 575, 618 (1969)
4 Rose Burkoff had earlier granted Simon's request for leave to enter the
home for solicitation purposes
5 On March 18, Union Agents Simon and Green came again to the nurs-
ing home On this occasion, Burkoff allowed only Green , and not Simon, to
enter the facility Employees were paged and were solicited by Green in the
employees ' lounge for a limited time No allegations are involved relating to
this visit
432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees to sign cards, and if they signed the cards (i.e.,
selected the Union as representative) three of the house-
keepers would have to be laid off, because Burkoff could
not afford to pay union wages. Medley's version placed
such a statement by Shiflett as occurring 2 or 3 days after
February 28. Thompson testified that, in a conversation
with housekeepers about a month after February 28, Shi-
flett indicated that, if the Umon came in, some employees
would be laid off because "we would have a (union) raise"
and Burkoff could not "afford to pay those prices." Then
Shiflett added that she did not know who would be laid
off; it could even be herself.6 Medley also testified, as did
Owens, that on February 28 Shiflett told the employees
that, if they signed for the Union, they would be "fired." In
the circumstances shown, with the Union permitted to soli-
cit within the facility, such a direct threat of discharge for
signing cards would seem implausible. I cannot conceive
that Brandon, being present, would not have heard such a
threat. This significant discrepancy among General
Counsel's witnesses, present at the same event, is not else-
where clarified. I am therefore constrained not to find that
Shiflett stated such a threat of firing employees, and dis-
miss this latter allegation in the complaint.
Medley also testified that on February 28 Shiflett was in
the employees' lounge, saw her sign an authorization card,
took the card out of Medley's hand, and threw it in the
trash can. I accept this aspect of her testimony, corroborat-
ed by Owens who witnessed the occurrence. Shiflett testi-
fied that before the meeting started one of the union agents
in the lounge (in the presence of other employees) handed
her a union card. She said, "here is what I think about your
card," and "tore it up and threw it in the trash can." 7
Shiflett and Thompson testified that after the meeting em-
ployees were sitting around the lounge. Thompson first
asked Shiflett what to do with the cards and then took her
own card and other blank cards lying on the table and
threw them in the trash can. General Counsel has not al-
leged and does not argue that an independent violation
was committed. I deem this evidence pertinent to show the
strong hostility of Supervisor Shiflett to the signing of
union cards, which attitude she pointedly displayed to em-
ployees on February 28. Elsewhere Shiflett testified, be-
yond credence, that at all times she was unaware that any
of the housekeepers had sympathies for the Union. The
elicited denials of Shiflett and Thompson, to the extent
inconsistent with the findings above, are not credited.
In my opinion the violation is substantially the same in
Shiflett's uttering the threat of layoffs-whether or not she
specified that three of the six housekeepers, or 50 percent
of them, would be so terminated; or whether or not it oc-
curred on February 28, within a few weeks thereafter, or on
more than one occasion.
6 Shiflett testified that sometime subsequent to February 28 she was asked
by some employees whether they would be laid off or fired if the Union
came in , and she replied she did not know-"Some of us will probably go
and I may be one of them " In her direct examination, Burkoff responded
with a denial to the question whether she told Shiflett at any time that, if the
Union got in, 50 percent of the employees would be "fired "
7 At another point, Shiflett flatly stated she did not go into the lounge
"while the union was there " And Thompson testified to corroborate such
fact
If an employer undertakes to inform employees of the
effects unionization will have on his company, the pre-
diction "must be carefully phrased on the basis of objective
fact to convey an employer's belief as to demonstrably
probable consequences beyond his control . . . . [Empha-
sis supplied.]" 8 What Shiflett stated to the employees was
not a prediction capable of objective proof of conse-
quences beyond Respondent's control. The free collective-
bargaining process does not permit the advance assump-
tion that any concession is required by either side (Sec.
8(d) ). Respondent could not objectively forecast that deal-
ing with the Union as a statutory bargaining representative
would inevitably result (1) in higher employee wages and
benefits, and (2) in its inability to meet such higher cost
without having to reduce the current complement of em-
ployees. In any case, it cannot be regarded that the lan-
guage of Shiflett was so "carefully phrased" as to eliminate
reasonable implications in the minds of the employees that
the projected layoffs were within Respondent's discretion
and control. The Supreme Court in Gissel found on the
precise issue that "the Board could reasonably conclude
that the intended and understood import of that message
was not to predict that unionization would inevitably cause
the plant to close but to threaten to throw employees out of
work regardless of economic realities." I I arrive at the
same conclusion here and find Shiflett's threat of a layoff
seriously violative of Section 8(a)(1).
2. William C. Connor
Connor is employed as a public school teacher and as a
part-time security guard under the auspices of the Pinker-
ton Company. From October 1974 to May 1975, he was
assigned as a guard at Respondent's premises. He worked
along with Rose Burkoff almost on a daily basis and had
occasion to discuss with her the union campaign.
On April 21, after Burkoff returned from the Board
hearing in the representation case, she called Connor into
her office. She mentioned that Wilma Peay and Katie
Woods were at that meeting and she was particularly sur-
prised to see Peay. She wanted him to "feel out," to see if
he "could discover the feelings of the employees as to their
pro or con union," since he had a good rapport with
them." 10 And she asked him to report back to her. She
gave Connor copies of the Union's financial statements,
which she explained to him. Among other things, she told
in if the Union won the election she could not afford to
pay union wages, and if she had to she would run the facili-
ty with LPN's (licensed practical nurses) and RN 's (regis-
tered nurses). Thereafter, on several occasions with differ-
ent employees, Connor had conversations to find out what
their sympathies were regarding the Union. Mainly he
spoke to about 10 employees on the 3 to 11 p.m. shift. He
discussed with them the financial statements of the Union's
local and international." He tried to convince them that
8 N L R B v Gissel Packing Co, Inc, 395 U.S 575, 618 (1969)
9 Id at 619 And see, e g , N L R B v Jimmy-Richard Co, Inc, 527 F 2d
803 (C A D C, 1975)
10 He testified that in fact he had a good relationship with the employees
11 Burkoff testified that Respondent distributed copies of the Union's fi-
nancial statements to each supervisor and placed a "batch" of them on the
MULTI-MEDICAL CONVALESCENT 433
the Union was in financial difficulties and the parent was
obviously helping the local. The discussion was "more or
less about who was feeling prounion or antiunion." He said
Burkoff had told him that if the employees voted for the
Union she would have to run the staff with LPN's and
RN's. He expressed his own opinion while he tried to im-
press upon the employees that it could probably mean their
jobs, that Burkoff was losing money, could not afford
union wages, and would have to lay off some of the em-
ployees. They should remember that, although there might
be benefits deriving from the Union, Burkoff would still
have the "final say-so as far as hiring and firing." After
April 21 he had discussions with Burkoff from time to time,
and he is sure that he verbally reported to her the names of
employees and their feelings towards the Union. On April
29, he wrote a note to Burkoff and left it on her desk. As
will be specifically shown infra, he commented on the gen-
eral attitudes of the employees, and specifically concerning
the union activities of Peay and Woods. After Peay was
discharged on April 30, Burkoff wanted him to stop feeling
the employees out, to "drop the whole thing," because it
was getting too involved.12 The foregoing, in essence, re-
flects the account given by Connor. Burkoff's denials as to
portions of these findings 13 are not credited. My distinct
opinion is that her testimony in numerous instances was
shifting, evasive, dissembling, and generally untrustworthy.
Initially, I find that Respondent authorized and utilized
the services of the security guard, Connor, to operate co-
vertly among the employees, exploiting their confidence
and trust, in order to ascertain and report to Respondent,
inter alia, the identities of those employees who favored
and those who opposed the Union. This is clearly within
the concept of employer espionage early condemned by the
Board and the courts as a fundamental intrusion into the
protected activities of employees." Accordingly, it is held,
within the framework of the complaint, that such conduct
by Respondent violated Section 8(a)(1) of the Act.
There are subsidiary questions whether certain state-
ments of Connor in the course of his "feeling out" the
employees are imputable to Respondent as unlawfully
coercive. In my opinion, the evidence does not permit the
inference that the employees were reasonably led to believe
that Connor, in what he told them, was an agent, supervi-
sor, or spokesman for Respondent, albeit he was an au-
thorized agent in regard to his undercover assignment.15
desk where Connor normally sat At the same time , she denied that she ever
told Connor to distribute these statements , and denied she had any informa-
tion that Connor was involved in finding out the employees ' sentiments
concerning the Union She answered that she does not care one way or the
other whether the Union comes into Respondent 's facility
i2 Burkoff testified she merely told Connor to stop interfering with the
employees
1 Such as , that she asked him to feel out the employees and to report
back , that she provided him with the financial statements of the Union, or
that he gave her any oral reports Much of this testimony was elicited by
leading questions
i4 E g, Consolidated Edison Co v N L R B 305 U S 197, 230 ( 1938),
Harvey Aluminum (Incorporated) and General Engineering, Inc, et at, 139
NLRB 151, 200 ( 1962), and cases cited therein And see Rust Sales Compa-
ny, 157 NLRB 1681 (1966 ), concerning the use of a detective agency to spy
and report on employees ' union activities
is Cf, Kolpm Bros Co , inc, 149 NLRB 1378, enfd 379 F 2d 488 (C A 7,
1967), and Atlas Engine Works, Inc, 163 NLRB 486 (1967 ), where the em-
Therefore, the specific complaint allegations that he en-
gaged in coercive interrogation of employees and that he
warned employees of termination because of their union
sympathies-cannot stand.16
3. Al Rhine
He hired and directly supervised Jacqueline Brooks, a
dietary aide. Brooks was active in soliciting union cards.
On April 22, Rhine asked Brooks if she had attended the
Board (representation) hearing the previous day. She re-
plied in the negative. He indicated that Burkoff had asked
him to find out if any of his girls were at the hearing. He
told her Burkoff said if the Union got in he would have to
let go 50 percent of his employees because she could not
afford to pay union wages.'
In the context of the established union animus and con-
temporaneous unfair labor practices, I find that Rhine en-
gaged in coercive interrogation of Brooks.18 In addition,
Section 8(a)(1) was violated in Rhine's threat that employ-
ees would be laid off if the Union were selected as their
representative.
4. Rose Burkoff
She spoke to assembled employees at a preelection meet-
ing on May 5.19 She testified that the purpose of the meet-
ing was to clarify "rumors running rampant" through the
facility. These rumors were brought to her attention
through the various supervisors, and not by any employees.
For her part, Marian Causey, an assistant to Burkoff and
the "administrator and head of recreational therapy," testi-
fied that Burkoff "planned the meeting" at the request of
certain employees who had approached Causey. The ru-
mors described by Burkoff were, e.g., that there were going
to be wholesale firings; that she was going to run the place
with LPN's and RN's; and that if they signed cards they
would be terminated. As already shown, certain statements
of this nature had earlier been made to the employees by
supervisors and by the guard, Connor.
General Counsel's witnesses gave testimony concerning
ployees enlisted by the employer to engage in antiunion activities used
threats and coercive arguments within the direct authority given by the
employer
1 Moreover, there is no evidence of actual conversations and therefore no
basis for applying the usual tests for determining whether the speech used
constituted coercive interrogation And his statements concerning the possi-
bility of layoffs and loss of fobs were characterized as reflecting his personal
opinion An area of doubt is presented whether Respondent should be held
accountable for his statement to employees that Burkoff told him, if the
Union came in, the facility would be run by LPN's and RN's There is
testimony elsewhere regarding such a statement from Respondent with sub-
stantial ambiguity as to the meaning intended and interpreted A witness for
General Counsel, employee Jacqueline Brooks, testified that Burkoff indi-
cated at a meeting with employees that, if the employees engaged in a strike,
she would have the LPN's and RN's run the building It is plausible and
probable that, in essence, this is what Burkoff sought to convey to Connor.
In the particular circumstances , I find no independent violation in this state-
ment to employees made by Connor Cf America Door Company, Inc, 181
NLRB 37 (1970)
17 Rhine was not called by Respondent
18 Blue Flash Express, Inc, 109 NLRB 591 (1954)
19 Minor variations in the date were given by certain witnesses It is undis-
puted that only one meeting was held about this time preceding the sched-
uled election on May 14
434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the meeting, in relevant substance, as follows: Denis Erwin:
Burkoff said, if the Union came in, there would have to be
paid increases, and she would have to lay off employees
because she could not afford to pay the increases. Josephine
Medley: Burkoff stated she could not afford to pay union
wages and, if the Union came in, she would have to lay off
some employees. She also said that, when she got some
more money, she would divide it and give her help more
money. Eunice Brandon: Burkoff said she could not afford
to pay union wages. If she got more patients, she would
pay even more than the Union would. Jacqueline Brooks:
Burkoff asked the employees to vote no in the election
because she could not afford to pay union wages. If the
Union did get in, the employees would engage in a strike,
and she would then have the LPN's and RN's run the
building. If the Union did get in, she would have to lay off
50 percent of the people.
Respondent's witnesses testified concerning the meeting:
Virginia Miller: Answering a question, Burkoff said there
would be no blanket firing but "there may, however, be
layoffs because of lack of funds." If she were forced to
raise wages, there were only so many dollars to go around
and "only so many employees could be kept." No mention
was made of any number or percentage of layoffs. She said
that, since it was a new facility, "it was running in the red
which was not at all unusual." If the employees stuck by
her, when the "census" went up, their pay would also go
up. The "census" referred to the number of patients in the
facility then about 30 as compared with the capacity of
120. The question was asked whether all the unlicensed
people would be fired and the facility run by licensed peo-
ple. Burkoff answered that this was impossible to do be-
cause licensed personnel required more pay than the unit
employees. Edward Rosenquist: Burkoff said there would
not be any blanket firing for signing cards. If the Union
came in and she had to increase the pay with the same
number of staff, she would have to lay off some employees
"to accommodate the money she had." She would have to
increase the wages if the Union came in. "Theoretically she
stated" that if she had to increase the pay "it would be
logical that she would have to lay off some people." If the
employees would "give her a chance to prove herself, then
she could try to do her best to accommodate the standards
she could set up." She showed them the Union's financial
statements and said that the Union's need for members to
resolve a deficit problem was the only reason the Union
wanted to come in. Supervisor Shiflett: Burkoff said, if the
Union came in and asked for higher wages, "she could not
afford to pay higher wages so :,he would have to lay some
of the employees off." If everybody would stick with her
and give her a chance, she would increase the pay when she
got more patients. Shiflett herself was repeatedly told
about this and she passed it on to her housekeepers. Bur-
koff said nothing about running the facility with LPN's
and RN's. Supervisor Causey: Burkoff said, in the event the
Union came in, "there would have to be layoffs if we did
not improve our patient census." If the Union did get in
and made such demands for salary "it was true there would
be layoffs." Answering whether there would be mass termi-
nations if the Union was selected, Burkoff indicated that
the employees who remained would certainly have their
salaries increased as the patient load increased. Rose Bur-
koff: Asked about mass layoffs, she said-if she were
placed "in a more difficult position financially than she
was already in," she would "have no choice but to lay off
some people" because the census then was 35 patients out
of 120 beds. She did not tell the employees to "stick with"
her but said that, if they gave her a chance, as the census
improves she would give them increases. She did not say
she would "fire" all nonlicensed personnel and run the fa-
cility with RN's and LPN's.
I find, in substance, Burkoff told the employees, if they
designated the Union in the forthcoming election, that she
would have to grant pay increases demanded by the
Union, that she could not afford to pay such increases, and
that she would have no alternative but to lay off some
employees. This essentially reflects the testimony of Erwin
and Medley, as well as Supervisors Shiflett and Causey. I
regard Burkoff's version as strained and equivocal. Only
Brooks testified that Burkoff specified she would have to
lay off 50 percent of the unit employees. It is not my find-
ing that such a statement was made by Burkoff at this
meeting. Even assuming that it had been made, the result I
reach would not be affected. However, it is to be noted that
statements describing a number or percentage of layoffs
were earlier made to the employees by Supervisors Shiflett
and Rhine, and it may reasonably be assumed they ema-
nated from internal management sources. In the preelec-
tion meeting on May 5, Burkoff also emphasized that the
employees would receive raises in pay as and if the census
of patients increased in the facility 20 General Counsel has
not alleged the promises of wage increases or benefits as
violations, and none is found on the state of this record.
Nevertheless, it is pertinent to consider from the vantage
point of the employees that Respondent was holding out
prospects of raises based on improvement in the census
while simultaneously asserting it could not afford to pay
union wages, and, if the Union came in, it would inevitably
result in layoffs. Burkoff made no comment that, if the
census improved, Respondent would be able to afford
union-negotiated raises. It is not conceivable that Burkoff's
statements on their face were objectively persuasive to the
employees that layoffs, upon the advent of the Union,
would result as an economic necessity. Indeed, the likely
impact upon them was that the "carrot and stick" ap-
proach in Respondent's efforts to influence them away
from the Union. Viewing all the testimony as to the import
of Burkoff's statements, it can scarcely be deemed that
these were "carefully phrased" predictions based on objec-
tive fact conveying demonstrably probable consequences
beyond Respondent's control 21 Rather, I find they were
thinly disguised threats. Accordingly, upon the reasoning
and authority discussed above concerning similar state-
ments made by Supervisor Shiflett, it is concluded that
Burkoff's statements depicting the eventuality of layoffs
violated Section 8(a)(1) as alleged.
20 Observation is made in the general context that, at the time of the
hearing on September 24, the unit complement had increased to 62 employ-
ees from the 34 employees eligible at the election on May 14, with the
implication that at this later date a substantial increase in the "census" must
have been achieved
21 G,ssel, supra , 395 U S . at 618.
MULTI-MEDICAL CONVALESCENT 435
C. Discharge of Wilma Peay
Peay was employed from July 22, 1974, until April 30,
1975, as a "nurse's assistant," earning $2.25, then raised to
$2.35 an hour, and was admittedly regarded by Burkoff as
an excellent worker. She had signed cards, attended union
meetings, appeared on behalf of the Union at the represen-
tation hearing on April 21, and agreed to be the union
steward "if the Union was voted in."
Relating to her discharge, the testimony in material sub-
stance, of the security guard, Connor, is given credence.
The incident relied on by Respondent stems directly from
Connors' unlawful conduct of engaging in espionage as to
the employees' union activities. Conflicting testimony of
Burkoff and Causey is rejected.
On April 21, Connor was summoned and he reported to
the office of Burkoff after she returned from the Board
heanng.22 She said she was surprised that Peay, of all peo-
ple, was at the hearing. Her attorney had informed her that
Peay was a member of the Union and was salaried by the
Union to act as an organizer while working for the facility.
Peay would not care about losing her job because she was
being paid by the Union.23
Following April 21, and his espionage assignment ar-
ranged that day, Connor undertook discussions with em-
ployees, as earlier noted. In the evening on April 29 he
prepared a report to Burkoff and left it in a sealed envelope
on her desk, viz:
is fired or not. Others are really beginning to "sweat"
their jobs. Some said, "Peay has a husband. What am
I going to do. I have to support myself."
Sincerely,
Bill
On April 30, after he returned home from his teaching po-
sition about 3:30 p.m., he received a call from Burkoff to
come immediately regarding his note. Soon thereafter, in
Burkoff's office, she told him she was going to have to
terminate Peay because of the statement "calling her a
crook." He protested that it was a "hearsay conversation,"
he didn't intend it to be used in such a way, and he thought
it was wrong to terminate her for this reason . Burkoff then
said that when he submitted his application for summer
employment and it was accepted by Respondent, "you be-
came a member of the staff and you have to back me up.
Administrators have to stick together." 24 Burkoff stated
she was going ahead with her plans to fire Peay, and would
call the staff together over the public address system "to set
an example." She said she "would show those coconut
heads who was boss." The Burkoffs, Causey, Peay's super-
visor (Igou), and Connor convened in the hallway adjacent
to the multipurpose room. The staff was already seated 15-
20 feet away in the multipurpose room with the door open.
Peay, having been summoned, entered and was questioned
by Burkoff. Burkoff said she had a report Peay "had called
her a crook," she was "not a crook," and she proceeded to
read to Peay the portion from Connor's report. Connor
April 29, 1975 testified Peay "looked like she didn't know what was hap-
Dear Mrs. Burkoff,
In my opinion Mrs. Peay, who gives the outward
appearance of being a professional lady, is nothing
more than a rabble-rouser. She is saying things like "I
know about Rose Burkoff. I've heard she is crooked."
"When I go the union will be here." etc.
Katie Woods is the typical black who needs to be
led. She has found a leader in Peay. Woods says she is
going to be fired anyway so the hell with it.
Many people, I feel, are afraid to vote no because of
the nasty consequences that might follow. Conse-
quences that 1199E is noted for. They feel the names
of those who vote against will be known.
The morale of the staff is sinking. Peay walks
around letting people know that she doesn't care if she
22 In passing, I note Burkoff's changing testimony, i e , that she had abso-
lutely no conversations with Connor concerning the Union, then that she
did not "specifically" have such conversations, then that it took place only
when he brought it up, and, finally, what they discussed was that "they [the
Union] were trying to come in and over and over and over again, they come
in and they come in "
23 Peay testified that, on April 21, Connor informed her of his conversa-
tion with Burkoff Connor related that Burkoff insisted Peay was a paid
worker for the Union and wanted her out of there regardless of what they
could get on her He indicated Burkoff also said "she would dust have to
show those coconut heads who was boss " Connor testified that, as he re-
called, the latter statement was made by him on April 30, as will be de-
scribed infra Peay's testimony is taken for the truth of what Connor told
Peay, but not for the truth of what Burkoff actually told Connor The testi-
mony is generally relevant to show such background in consideration of the
circumstances attending Burkoff's confrontation with Peay on April 30
pening" and, responded to Burkoff-"if I recall correctly,
Mrs. Peay said I did or something to that effect." Burkoff
then told Peay she had no other recourse than to ask her to
get her things and leave the premises because she would
not tolerate "anyone saying this" about her.
Connor testified that, in the late evening on April 29, he
had a discussion with employees Peay, Erica Penkney, and
Kathy McCullough in the employees' lounge. He was
going over with them the "financial statements, public re-
cords, and federal statements" of the local and parent of
the Union. He had also voiced his personal opinion con-
cerning Burkoff's "losing money" and the possibility of
layoffs because of inability to pay union wages. Peay re-
marked, "don't tell me about that Rose Burkoff, I have
heard she is a crook."
Peay's version varied, but not materially, from that of
Connor. On April 29, in the employees' lounge, Connor
had been talking to Peay about the Union. He went to his
desk in that area and then called Peay to the desk. He
showed her the Union's financial statements, arguing that
the Union just wanted the financial help of the employees.
Peay commented that the statements were not necessarily
true. Connor then indicated, "Well here are the statements
from Multi-Medical." Peay countered, "Well, they could
be crooked too." And he said, "No, the Federal Govern-
ment had printed these statements and they were true." 25
24 Then assigned as a part-time Pinkerton guard, Connor was approached
by Burkoff and Causey in April to take employment during the coming
summer months as an assistant to Causey
25 I do not find that Peay adverted to the Company' s own financial state-
ments As I construe the testimony, she was inarticulately referring first to
Continued
436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
McCullough and Pinkney were sitting in the lounge about
12 feet away. From the rambling manner of Connor's testi-
mony on this issue, I have doubt that Peay used the exact
language he ascribed to her. However, my finding is that
she did remark to the effect that she had "heard" Rose
Burkoff is a "crook" or "crooked" in the context of the
discussion concerning the financial statements.
Continuing, Peay testified that on April 30, about 4:30
p.m., she was summoned and appeared in the sitting area
across from the multipurpose room. Present were Mr. and
Mrs. Burkoff, Connor, and Causey. She observed that
some employees were in the multipurpose room . Rose Bur-
koff confronted her-"I understand you made a statement
that I know all about Rose Burkoff and she is a crook."
Peay replied that she did not recall making such a state-
ment. Burkoff then said there was no need for her to
"plead temporary insanity," and ordered her to punch out
the timeclock 26
Conclusions
My decision on the question of Peay's discharge is
based , inter aka, upon the following considerations in sum-
mary: (1) Peay's unguarded leadership activities on behalf
of the Union. (2) Burkoff's hostile reaction upon finding
Peay attended the Board representation hearing on April
21, and her expressed belief that Peay was a paid union
organizer. (3) Burkoff's use of Connor as an espionage
agent, and his invasion and violation of Peay's confidence
in obtaining and reporting to Burkoff on Peay's union con-
duct, including the remark in question critical of Burkoff.
(4) The fact that on April 29 Connor was engaged with
Peay in a two-party conversation, purportedly overheard
from a distance by two employees who were not called to
testify. (5) Connor's written report to Burkoff on April 29,
pointing to Peay as a "rabble-rouser" and as a dedicated
proponent of the Union, while quoting Peay as stating she
had heard Burkoff is a crook. (6) The essential nature of
Peay's remark regarding Burkoff . It was made in limited
reference to the reliability of the Union 's financial state-
ments given to Connor by Burkoff for campaign propagan-
da. It appears as an offhand comment by an obviously
unsophisticated domestic-type worker. It was not articulat-
ed for general circulation and, in my opinion, was not ut-
tered with intended or understood malice against Burkoff
personally. (7) Burkoff decided summarily to discharge
Peay before confronting her-Connor's protests notwith-
the union statements made available by Multi-Medical and then to the
"Federal Government" reporting and disclosure forms filed by the Union
26 At the conclusion of Peay's direct examination , General Counsel fur-
nished Respondent , on request , with Peay ' s prehearing affidavit of eight
pages There was virtually no cross-examination of Peay In addition, it is
noted that Mr Burkoff and Supervisor Igou did not testify, nor did Respon-
dent call employees Pinkney or McCullough (Indeed, Pinkney refused to
honor General Counsel's subpena ) Burkoff and Causey testified that, be-
fore calling Peay, they questioned Pinkney , and that, at the discharge inter-
view , when Peay said she did not remember making the remark read to her
from Connor's report, Connor and Pinkney, in contradiction, asserted they
heard her make the remark Connor did not so testify and was not cross-
examined on the point Employee Denise Erwin , who overheard the conver-
sation from the multi-purpose room, did not so testify
standing that he did not intend such a result and that it was
wrong. And Connor was told he had to back her up, "ad-
ministrators have to stick together."
Such a remark as attributed to Peay is certainly not to
be condoned. Nevertheless, I do not accept as earnest
Burkoff's protestations of alarm concerning the damage to
her reputation . It was Burkoff herself who took pains
broadly to publicize Peay's derogatory comment. Nor do I
find substance in Respondent 's arguments that failure to
discipline Peay would have adverse effects upon the pa-
tients and the operation of the "fledgling" facility. In the
experience of industrial conflict , it is well known that em-
ployees among themselves make strong remarks concern-
ing an employer in the heat of a union campaign. At the
time she made the remark , Peay was involved in a discus-
sion concerning the Union's drive with Connor, at his initi-
ative, while other employees were present. I find she was
therefore engaged in a protected activity. The further ques-
tion, however, is whether her offense, in the remark affect-
ing Burkoff, was of such gravity as to forfeit the Act's pro-
tection.27 In all the circumstances present, I hold that it was
not. Burkoff's desire to get rid of Peay because of her orga-
nizational activities is inferrably quite plain. With conspic-
uous alacrity, she seized upon this incident as a pretext to
accomplish such purpose. It is my finding that, in discharg-
ing Peay, Burkoff was motivated in virtual entirety by her
determination to remove Peay as an outstanding employee
activist and paid worker for the Union, and to "set an
example" in this respect of discouraging employees from
their support of the Union in the impending election. Ac-
cordingly, the violation of Section 8(a)(3) is sustained.
It is also alleged in the complaint that Respondent vio-
lated Section 8(a)(1) "in assembling and requiring employ-
ees to witness the discharge of a known Union adherent."
Connor testified that, in her office on April 30, before con-
fronting Peay, Burkoff indicated she would call the staff
together "to set an example ." Some employees were pre-
sent in the multi-purpose room and heard the discharge
interview take place outside their door. Thereafter, Burkoff
spoke briefly to the assembled employees in the multipur-
pose room. Employee Erwin testified Burkoff told them
she had dust fired Peay and wanted them to be "a witness
or something." 28 In discharging Peay and thereby discour-
aging union membership, Section 8(a)(1) was derivatively
violated. Nothing was said by Burkoff at the discharge in-
terview or directly to the employees in the multipurpose
room which can be regarded as independently coercive,
apart from the discharge itself. I have not cited, nor am I
aware of, any case in which Section 8(a)(1) is held to be
violated by an employer calling or having employees wit-
ness a discharge which is found to be discriminatory. While
it may give emphasis to an unlawful act of discharge, I
hold that it creates no additional violation. This allegation
is therefore dismissed.
27 Cf Keystone Ship Engineering Company, 113 NLRB 596 (1955), cited by
Respondent, where the Board held the misconduct of an employee was
serious enough to foreclose any speculation that it was used as a pretext to
discharge him because of his union activities
28 As the evidence actually indicates , the employees were not assembled
in order to witness the discharge in their physical presence
MULTI-MEDICAL CONVALESCENT
D. Discharge of Vera Owens
Owens was employed since October 15, 1974, as a house-
keeper assigned to the second floor of the west wing,
encompassing about 15 bedrooms, as well as bathrooms,
halls, lobby, solarium, and elevator, as her specific respon-
sibility. She performed a wide variety of cleaning and mis-
cellaneous duties under the standing instructions she had
been given when she began employment. One of her major
and most time-consuming jobs was to scrub the floors in
the entire wing every day. All six housekeepers in the de-
partment worked on 8-4:30 p.m. shift. Her supervisor,
Yorkevitch, was terminated about 1 month before she, Ow-
ens, was discharged on July 12. During this period, Mil-
dred Shiflett was his assistant but did not directly exercise
any authority over Owens. Shiflett became the housekeep-
ing supervisor upon Yorkevitch's departure, as appears,
about early June 29
Owens was particularly active for the Union. In October
1974 and January 1975 she accepted authorization cards
from union agents being distributed at Respondent's drive-
way entrance, and she mailed her signed cards to the
Union. She also signed cards during the Union' s meetings
within the premises on February 28 and March 18, supra.
Shortly following this meeting in February, near the en-
trance to the facility as she was reporting to work, Union
Agent Simon openly handed her about 15 blank cards. As
she testified, this was observed by the security guard stand-
ing within a glass door 20-25 feet away. ° During the
course of the same day, she distributed 8 or 9 of these cards
to unit employees in the employees' lounge. She informed
employees on each of three occasions union meetings were
to be held, and in various conversations with employees
she urged them to support the Union. For several days
prior to the election, she wore a union button (1 inch in
diameter) on the lower right side of her uniform.
On Saturday, July 12, Owens received a telephone call at
home from Supervisor Shiflett. Owens testified: Shiflett
told her-"your work doesn't meet my and Miss Burkoff's
approval, and she said to let you go." Owens said she had
done her work and repeatedly requested the reason for dis-
missal , but Shiflett would not give her any specific reason.
Shiflett also said, "You're a troublemaker and I'm going to
get rid of you." At the end of the conversation Owens re-
marked, "Well, you won't hear the last of this." On Mon-
day Owens called to speak to Burkoff at the nursing home
and was told Burkoff was not in. As to the telephone call
on July 12 Shiflett testified: She told Owens she was termi-
nated "because she didn't do the work I asked her to do."
She said nothing else to Owens at that time. In later testi-
mony, Shiflett added that they talked about what Owens
had been told to do-cleaning up food stains and mopping
the floors. Owens protested she had mopped the floors,
"but she hadn't."
Shiflett testified that, on July 10, she had assigned Ow-
ens certain work to be performed, described below. On
29 Unrefuted testimony of Owens
30 The guard was other than Connor, who came on duty for the afternoon
shift. It is not alleged, and I do not find, that the unnamed guard was an
agent of Respondent or that he actually reported such information to Re-
spondent.
437
July 11, Shiflett's day off, she was not present to observe
Owens' work. On July 12, Owens' day off, when Shiflett
returned and found the specified assignments to Owens
had not been done she decided to terminate her. Then she
called Owens at home. She alone made the determination
to discharge Owens.
Only these two witnesses, in direct conflict, testified on
the issue. In substantial respects, I find Shiflett's testimony
changing, inconsistent, implausible, and fabricated. Owens
is credited.
Incidents on July 10
Shiflett testified that, early in the morning on July 10,
she asked Owens to clean the elevator. Owens said she was
not going to clean the "damned thing." She later observed
it had been cleaned but did not know (or try to find out) if
it had been done by Owens. On cross-examination, Shiflett
indicated she did "not really" consider the elevator inci-
dent in her decision to dismiss Owens. Owens testified she
had only her standing instructions, and was not given by
Shiflett this or any other specific duty to perform on July
10. Owens indicated such an incident did occur at least 1
month before her discharge; that she did clean the elevator
at that time; and that she did not then, or ever, tell Shiflett
she would not perform any assigned task.
Shiflett stated that, about lunchtime, she approached
Owens to clean some water from the floor of Room 202.
Owens said, "why didn't you clean it up, you was up-
stairs?" When Owens later said she could not find the wa-
ter, Shiflett showed her where it was and it was then
cleaned. In her later testimony, Shiflett admitted that she
did not rely on this incident in discharging Owens.31 This
testimony was specifically denied by Owens. She testified
such an incident occurred 3 or 4 weeks before July 10.
Shiflett had instructed her to clean a water spill in Room
202. It was just a little spot and she wiped it up with a
paper towel.
Shiflett related that she instructed Owens to clean the
entire floor in the wing, including some of the rooms.32
Specifically, Shiflett told Owens about food which a pa-
tient had spilled on the floor near her bed. Also there was
a "wax buildup" in the same room and around the doors
and beds of each room. The only way to clean up the wax
was to "strip it,"-a task she had never previously asked
Owens to do. When Shiflett returned on July 12, the food
and wax were still there. She took a buffer and cleaned the
wax up herself. Later she testified that, after Owens' termi-
nation, she sent four girls to scrape the food off the floor
and remove the wax.33 As already noted, Owens denied
any such instructions on July 10. Josephine Medley is
31 Respondent elicited numerous alleged faults in the work performance
of Owens on which it expressly relied in the decision to discharge Owens At
the hearing, Respondent's counsel was repeatedly cautioned not to adduce
incidents which were not relied on and therefore irrelevant In its brief,
Respondent persists in its reliance on the elevator and water incidents, as
well as the numerous generalized criticisms of Owens' preceding July 10,
discussed infra
32
Undisputedly, it was Owens' normal daily duty to clean the floors
33 None of these employees was called to testify It also appears that
another housekeeper was normally assigned to Owens' area of work on her
day off, e g, July 12
438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Shiflett's assistant and was the supervisor in charge of
housekeeping when Shiflett was absent. On July 11,
Shiflett's day off, Medley had occasion to observe Owens
and saw nothing wrong in the performance of her work.
Regarding Owens' duties, Shiflett did not discuss with
Medley, before or after July 11, the food spill, wax buildup,
or any special assignments given to Owens, and Medley
had never complained to Shiflett about Owens' work. Ow-
ens testified she had never been criticized or warned con-
cerning her work performance.
Incidents before July 10
Shiflett testified she told Owens several times, 3 or 4
weeks before July 12, her work was slow, she was not mop-
ping the floors, or cleaning the bathrooms, and "just wasn't
cleaning." About 2 months before July 12, she told Owens
several times the work has got to be done. "Sometimes she
did the work, sometimes she didn't." 34 She spoke to Owens
a "couple of times" about going to sleep at the monthly "in
service" meetings, in which the housekeepers were instruct-
ed how to mix the chemicals for cleaning purposes. Owens
slept through most of these. In April and May, after each
such meeting, she told Owens to pay attention because it
was important.35 On cross-examination, Shiflett testified
she "didn't think too much" about the sleeping incidents as
basis for discharge. She had discharged Owens because she
could not follow orders, specifically the food spill, the wax
buildup, and "keeping the floor clean." Owens testified
that she had dozed once, and that Shiflett never mentioned
anything to her about sleeping during the "in service"
meetings.36
Conclusions
Shiflett was intent to establish, as she initially testified,
(a) that she independently made the decision to discharge
Owens, and (b) that she had utterly no knowledge of the
union activities of Owens, or of any of the housekeepers.
On both points, I find the record supports the contrary. It
was extricated from Shiflett that, during the week before
Owens' discharge, she discussed with Rose Burkoff the fail-
ure of Owens to follow her instructions. As to these addi-
tional incidents. Shiflett said "it was the same
thing"-mopping floors and cleaning bathrooms, elevators
and beds. Nevertheless, Shiflett testified that, while she
came to Burkoff with complaints about Owens, she indi-
cated she did not want to get rid of Owens. However, Bur-
koff said, "if she's not doing her work, you've got to have
somebody that will do it . . . so do what you have to do,
replace her.,, 37 Shiflett testified that it was not customary
for her to consult higher management before she made a
decision to discharge; however, she had in fact done so
14 These purported incidents took place before Shiflett became the house-
kee
3
ping supervisor, supra
/bid
36 During the course of her testimony, Shiflett volunteered that when she
first went to work Owens was a good worker
37 Burkoff was not called on this issue
with everyone she terminated; but in this instance, on July
12, she did not.
Considering Shiflett's reluctance to admit that Burkoff
played any part in the decision, I regard this latter testimo-
ny as carrying significant implications. In view of the back-
ground of this record, it is highly probable that Burkoff
was more emphatic in her instruction to Shiflett, and that
the determination to discharge Owens was virtually settled
during such discussion. I find that Burkoff and Shiflett
then knew or believed Owens was strongly supporting the
Union. When the union agents visited the premises on Feb-
ruary 28, Shiflett was in and out of the lounge while em-
ployees were being solicited to sign cards; and she graphi-
cally demonstrated to the employees her concern and
animus in opposition to the card signing. Shiflett conced-
edly was aware that in general conversations she had with
the housekeepers and at the May 5 preelection meeting
with Burkoff Owens had asked pointed questions regarding
the Union. Connor had been unlawfully engaged in ascer-
taining the identity of employees favoring the Union, and
he did orally report back to Burkoff certain names, unspec-
ified. Burkoff testified that, at the preelection meeting, Ow-
ens "started to say something about the way she was plan-
ning to vote and I stopped her and I said I was not
interested." Although this testimony is partially self-serv-
ing, it is indicative to an extent that Burkoff would likely
infer Owens' union activism. Additionally, in their tele-
phone conversation on July 12, Shiflett told Owens she is a
"troublemaker" and is going to "get rid of her."38
Respondent's persistent reliance upon every conceivable
deficiency it could dredge up concerning Owens' work per-
formance, many if not all of which were old, plainly con-
cocted, or admittedly not considered by Shiflett, signifies
its pretextuous purpose in attempting to justify Owens' dis-
charge. Shiflett had been effectively instructed by Burkoff
to replace Owens. It is found that Shiflett's complaints re-
garding Owens' refusal and failure to perform assigned
work on July 10 and 11 were contrived. The issue of union
representation was then apparently still pending after the
inconclusive election. It is found that the true reason for
the summary termination delivered by telephone on July
12 was Respondent's desire to "get rid of" Owens as a
staunch union proponent and to discourage adherence to
the Union by other employees.
Bearing in mind Respondent's violations of Section
8(a)(1) and (3), earlier described'39 I find and conclude that
it was discriminatorily motivated in discharging Owens,
thereby further violating Section 8(a)(3).
F. Remedial Bargaining Order
1. Authorization card majority
On April 21, the parties entered into a stipulation of the
record in the representation case in which it was agreed,
inter alia, that as of such date the Union orally requested
78 Not specifically denied by Shiflett
39 See, e g , Ohmue Manufacturing Company, Subsidiary of North America
Phillips Corporation, 220 NLRB 1206 (1976).
MULTI-MEDICAL CONVALESCENT
recognition and Respondent orally refused such request 40
The stipulation incorporates an eligibility list, for purposes
of the election held on May 14, with the names of 39 unit
employees 41 employed during the biweekly payroll period
ending April 19. The list represents the pertinent unit com-
plement to determine the question of the Union's card ma-
jority. Signed authorization cards of 21 employees were ad-
mitted in evidence. Included is the card of Linda Shiflett,
who was subpenaed by General Counsel and declined to
appear. I have compared her signature on the card signed
on April 23 and on her W-4 form and find they are clearly
identical. The card of Sarah T. Wheeler, signed on April 2,
and her W-4 form were offered and placed in the rejected
exhibit file subject to restudy. General Counsel represented
that, to verify Wheeler's signature, reliance had been
placed on the anticipated testimony of Union Agent
Green, based on prehearing investigation. Green was hos-
pitalized and unavailable to testify until October 21. Green
testified she gave the card to Wheeler and received the
signed card in the mail; she did not see Wheeler sign. The
parties were subject to a ruling that only evidence relating
to Green's testimony would be adduced on October 21.
General Counsel represents that therefore no attempt was
made to subpena Wheeler. I have reexamined these partic-
ular circumstances and admit into evidence Wheeler's au-
thorization card and W-4 form. In doing so, I have also
considered Respondent's basis for objections to certain of
the cards, which I find, infra, devoid of merit. The signa-
tures on the card and W-4 form are unmistakably the
same . With Wheeler's card included, there are 22 signed
authorization cards submitted by the Union.
Two of the authorization cards, by Linda Shiflett and
Louis H. Costin, are dated April 23; the remainder were
signed on dates from October 31, 1974, to April 8, inclu-
sive. Accordingly, I find that, as of April 19, the Union had
20 valid authorization cards of 39 employees in the unit,
constituting a majority. Adding the cards of Shiflett and
Coston, the Union's card majority as of April 23 consisted
of 22 employees of the 39 in the unit.
Respondent objects to the card of Nellie Clark on the
ground of her testimony that Vera Owens, who solicited
her signature, told her it was "to try to get an election."
This contention is rejected; no representation was made
that the cards were sought solely for the purpose of getting
an election 42 Respondent asserts that the cards of Shirley
Fleming and Ruth Ford, both dated October 31, 1974, and
that of Theresa Cross, dated November 24, 1974, are inval-
id because they were not signed as part of the "current
campaign." It argues that the Union began its campaign
anew on February 28, and therefore the earlier signed
cards are stale. As plainly apparent in this record, the
Union was conducting a single continuous campaign com-
mencing prior to October 31, 1974. As of February 26,
90 The pending petition filed on April 7 also constituted a continuing
recognition claim It is unnecessary to determine whether there existed a
continuing claim by virtue of the petition previously filed and later with-
drawn , and the direct dealings between the parties
41 By agreement at the hearing, the name of Clair DeShield was added to
the list
42 N L R B v Gissel Packing Co, Inc, 395 U S 575, 584 (1969), Cumber-
land Shoe Corporation, 144 NLRB 1268 (1963), Levi Strauss & Co, 172
NLRB 732 (1968)
439
when the Union and Respondent representatives met for
the purpose of a card count, it is Respondent's own posi-
tion that the Union was short of a majority by one card 43
and that the Union was invited to seek additional cards. It
is also evident that the Union, on and after February 28,
obtained from employees duplicate cards, and the more
recent of these cards were introduced. I find the cards of
Fleming, Ford, and Cross are sufficiently current within
the campaign and may properly be counted toward the
majority44
2. Gissel and Trading Port
As found, Respondent violated Section 8(a)(1) by dele-
gating a security guard to spy and report on the employees'
union activities , by engaging in coercive interrogation of
employees and by repeatedly threatening the employees
with layoff if they selected the Union. And it violated Sec-
tion 8(a)(3) by discharging Peay and Owens because of
their union activities. Peay's discharge and the various in-
dependent acts of coercion upon the employees had a clear
tendency to, and did, undermine the Union's majority
strength and interfered with the election held on May 14.
Respondent's unfair labor practices are sufficiently egre-
gious within the Supreme Court's standards in the Gissel
case 45 to conclude that the application of the Board's tra-
ditional remedies will not serve to eliminate the lingering
coercive effects of these practices; that a fair rerun or new
election has been rendered highly improbable; that the
signed authorization cards of a majority of the employees
reliably demonstrate their representation desires for pur-
poses of the Act; and that a remedial bargaining order is
warranted46 The complaint herein does not allege a viola-
tion of Section 8(a)(5) on the basis of Respondent 's refusal
to bargain when the Union requested recognition on April
21. It is unnecessary to reach such an issue.47 In Trading
Port, Inc.,48 the Board decided that an employer's obliga-
tion under a Gissel bargaining order should commence as
of the date of the employer's embarkation on a clear course
of unlawful conduct. As I find that Respondent embarked
on such a clear course when it undertook, on April 21, to
assign espionage operations to the security guard, thereaf-
ter acting upon his reports, the recommended remedy will
provide that Respondent's bargaining obligation be
deemed to have commenced on such date, which coincides
with the Union's bargaining request and card majority.49
111. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent, set forth in section II,
above, occurring in connection with its operations de-
scribed in section I, above, have a close, intimate , and sub-
43 The tests each party applied at such meeting for counting the cards do
not appear
44 E g, Blade-Tribune Publishing Company, 161 NLRB 1512, 1513 (1966)
45 395 U S at 613-615
46 E g , Elling Halvorson, Inc, 222 NLRB 534 (1976)
47 Id at In 4 Nothing in Gissel conditions the bargaining order remedy
upon a demand for bargaining Ludwig Fish & Produce, Inc, 220 NLRB
1086 (1975)
48 219 NLRB 298 (1975)
49 And see Fordham Equipment Company, Inc, 221 NLRB 681 (1975)
440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stantial relationship to trade, traffic, and commerce among
the several States and tend to lead to labor disputes bur-
dening and obstructing commerce and the free flow of
commerce.
IV. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act. Particularly in
view of the discriminatory discharges, a broad cease-and-
desist order is provided.50
It has been found that Respondent discharged Wilma
Peay and Vera Owens in violation of Section 8(a)(3) of the
Act. It will therefore be recommended that Respondent
offer these employees immediate and full reinstatement to
their former positions or, if such positions no longer exist,
to substantially equivalent positions, without prejudice to
their seniority or other rights and privileges, and make
them whole for any loss of earnings they may have suffered
as a result of the discrimination against them, by payment
to them of a sum equal to that which they normally would
have earned, absent the discrimination, from the date of
the discrimination to the date of Respondent's offer of re-
instatement, less net earnings, in accordance with the for-
mulae set forth in F. W. Woolworth Company, 90 NLRB
289 (1950), and Isis Plumbing & Heating Co, 138 NLRB
716 (1962). It will be further recommended that Respon-
dent preserve and make available to the Board, upon re-
quest, all payroll records, social security payment records,
timecards, personnel records and reports, and all other rec-
ords necessary and useful to determine the amounts of
backpay and the rights of reinstatement under the terms of
these recommendations.
In view of the provision for a remedial bargaining order,
it is recommended that the election held on May 14 be set
aside and the petition be dismissed.
Upon the foregoing findings of fact, and upon the entire
record in the cases, I make the following:
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By discharging Wilma Peay and Vera Owens, thereby
discouraging membership in the Union, Respondent has
engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a)(3) of the Act.
4. By the foregoing, and by other specific acts and con-
duct interfering with, restraining, and coercing employees
in the exercise of their rights guaranteed in Section 7 of the
Act, Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(1) of the
Act.
so N L R B v Express Publishing Company, 312 U S 426 (1941), N L.R B
v Entwistle Mfg Co, 120 F 2d 532 (C A 4, 1941)
5. All regular full-time and regular part-time service and
maintenance employees employed by Respondent at its
Towson, Maryland, facility, excluding registered nurses, li-
censed practical nurses, office clerical employees, profes-
sional employees, guards, and supervisors as defined in the
Act, constitute a unit appropriate for the purpose of collec-
tive bargaining within the meaning of Section 9(b) of the
Act.
6. Since April 21, 1975, the Union has been, and is now,
the exclusive representative of all employees in the appro-
priate unit within the meaning of Section 9(a) of the Act.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
8. Respondent's unlawful conduct interfered with the
election held on May 14, 1975.
Upon the above findings of fact, conclusions of law, and
the entire record in the cases, and pursuant to Section 10(c)
of the Act, I hereby recommend the following:
ORDER51
Respondent, Multi-Medical Convalescent and Nursing
Center of Towson, Towson, Maryland, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating employees concerning their
union activities or those of their fellow employees.
(b) Threatening employees with layoff, discharge, or
other reprisal if they select as their representative, or be-
cause of their activities in behalf of, District 1199E, Na-
tional Union of Hospital and Health Care Employees, Re-
tail, Wholesale and Department Store Union, AFL-CIO,
or any other labor organization.
(c) Assigning or utilizing its security guards, or any
other agents, to engage in surveillance of and reporting on
employees' union sentiments or activities in violation of
Section 8(a)(1) of the Act.
(d) Discouraging membership in the above-named labor
organization or in any other labor organization by dis-
charging employees, or in any other manner discriminating
in regard to hire or tenure of employment or any term or
condition of employment.
(e) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights guaran-
teed in Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Offer Wilma Peay and Vera Owens immediate and
full reinstatement to their former positions or, if such posi-
tions no longer exist, to substantially equivalent positions,
without prejudice to their seniority or other rights and priv-
ileges, and make them whole for any loss of earnings, in the
manner set forth in the section of this Decision entitled,
"The Remedy."
51 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec
102 48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes
MULTI-MEDICAL CONVALESCENT
(b) Upon request, recognize and bargain collectively
with District 1199E, National Union of Hospital and
Health Care Employees , Retail , Wholesale and Depart-
ment Store Union, AFL-CIO, as the exclusive bargaining
representative of its employees in the appropriate unit de-
scribed above with respect to rates of pay, wages, hours of
employment , and other terms and conditions of employ-
ment , and embody in a signed agreement any under-
standing reached.
(c) Preserve and, upon request , make available to the
Board or its agents all payroll and other records, as set
forth in the section of this Decision entitled , "The Reme-
dy"
(d) Post at its Towson , Maryland, facility, copies of the
attached notice marked "Appendix ." 52 Copies of said no-
52 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
441
tice, on forms provided by the Regional Director for Re-
gion 5, after being duly signed by Respondent, shall be
posted immediately upon receipt thereof, in conspicuous
places, and be maintained for 60 consecutive days. Rea-
sonable steps shall be taken to ensure that said notices are
not altered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 5, in wnt-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that Case 5-RC-9304 be severed
and remanded to the Regional Director for appropriate
disposition in conformance with the findings herein.
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 "