North Shore Convalescent Home, Inc.

National Labor Relations Board - Board Decisions

Mar 7, 1972

195 N.L.R.B. 737 (N.L.R.B. 1972)

NORTH SHORE CONVALESCENT HOME 737
IDAK Convalescent Centers, Inc. d/b/a/ North Shore
Convalescent Home, Inc. and Building Service Em-
ployees International Union , Local 254, AFL-CIO.
Case 1-CA-7623
March 7, 1972
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND KENNEDY
This case was tried before me at Boston, Massachusetts, on
August 11 and 12, 1971. All parties appeared at the trial and
were given full opportunity to participate therein. On Sep-
tember 23, 1971, the General Counsel and Respondent filed
timely briefs, which I have fully considered. For the reasons
hereinafter indicated, I find that Respondent did not engage
in conduct violative of the Act and will recommend that the
complaint be dismissed in its entirety.
Upon the entire record in the case,' and from my observa-
tion of the demeanor of the witnesses while testifying under
oath, I make the following:
On October 18, 1971, Trial Examiner Louis Libbin
issued the attached Decision in this proceeding. There-
after, the General Counsel filed exceptions and a sup-
porting brief, and the Respondent filed cross-excep-
tions to the Trial Examiner's Decision.
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 Trial
Examiner's Decision in light of the exceptions and brief
and has decided to affirm the Trial Examiner's rulings,
findings,' and conclusions2 and to adopt his recom-
mended Order.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Trial Examiner and hereby orders that the com-
plaint be dismissed in its entirety.
' As the record shows that Respondent 's counsel Furnari told the union
representatives that "he was now ready to go to an election" we correct the
typographical error in the first paragraph of section 8 of the " Facts" of the
Trial Examiner ' s Decision by changing "not" to "now."
' Member Fanning believes that , within the principles set forth by the
Board in Arthur F. Derse, Sr., President, and Wilder Mfg. Co., Inc., 185
NLRB No. 76, and by former Member Brown and him in their dissent in
Linden Lumber Division , Summer & Co., 190 NLRB No. 116, on the facts
of this case the Respondent 's insistence on an election did not violate
Section 8 (a)(5) of the Act.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Louis LIBBIN, Trial Examiner: Upon charges filed on
April 23 and May, 21, 1971, by Building Service Employees
International Union, Local 254, AFL-CIO, herein called the
Union, the General Counsel of the National Labor Relations
Board, by the Regional Director for Region 1 (Boston, Mas-
sachusetts), issued a complaint, dated June 30, 1971, against
IDAK Convalescent Centers, Inc. d/b/a/ North Shore Con-
valescent Home, Inc., herein sometimes called the Respond-
ent. With respect to the unfair labor, practices, the complaint
alleges, and Respondent's duly filed answer denies, that Re-
spondent violated Section 8(a)(5) and (1) of the Act by refus-
ing, upon request, to bargain with the Union which was
designated as bargaining representative by a majority of the
employees in a specified appropriate unit and by engaging in
specified acts of interference, restraint, and coercion.
195 NLRB No. 138
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent, a Massachusetts corporation with its princi-
pal office and place of business in Dedham, Massachusetts,
operates a proprietary nursing home in Saugus, Massa-
chusetts, herein sometimes called the Saugus facility. Re-
spondent does an annual gross volume of business in excess
of $100,000 and in the course and conduct of its business
causes large quantities of medicines, medical supplies, and
related products, used by it annually in the operation of its
Nursing home, to be purchased and transported in interstate
commerce from and through various States of the United
States other than the Commonwealth of Massachusetts.
Upon the above admitted facts, I find, as Respondent also
admits in its answer, that Respondent is engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
H. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, the record
shows, and I find, that Building Service Employees Interna-
tional Union, Local 254, AFL-CIO, the Charging Party.
herein, is a labor organization within the meaning of Section
2(5) of the Act.
111. THE UNFAIR LABOR PRACTICES'
A. Introduction; the Issues
IDAK Convalescent Centers, Inc. owns and operates sev-
eral nursing homes, the one herein involved being the North
Shore Convalescent Home, Inc., located in Saugus, Massa-
chusetts, and herein sometimes called the Saugus facility.
Harold Schwartz is the administrator of the Saugus facility.
Other representatives for whose conduct Respondent is liable
are Melvin Kline, the corporation's executive vice president,
Mrs. Platt, director and supervisor of nurses and nursing
coordinator, Mrs. Holden, a director of IDAK corporation,
and Bradford Moore, the assistant director of operations un-
der Mrs. Holden.
Prior to April 22, 1971,' representatives of Respondent met
with employees and their representatives to discuss their
grievances, including wage increases and improved working
conditions. On April 22, a group of employees walked out on
an economic strike, began to organize a union, and thereafter
engaged in picketing of Respondent's premises. The strike
ended with the return of the employees to work by the middle
of May. During the walkout,. Respondent put into effect a
package program, including wage increases and improved
I hereby note and correct the following obvious inadvertent errors in the
typewritten transcript of the testimony: On 1.21 of p. 110, the words "Trial
Examiner" are corrected to read "Mr. Ravech"; and on 1. 11 of p. 232, the
word "interior" is corrected to read " issues."
Unless otherwise indicated, the factual findings herein are based on
admissions and credited evidence which is either admitted or undenied.
All dates are in 1971, unless otherwise indicated.
738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
working conditions , talked to individual strikers and to
groups of employees , including strikers , about its package
program , and refused the Union 's requests for recognition as
the bargaining representative of its employees in the standard
appropriate unit although the Union had obtained signed
authorization cards from a majority of the employees in said
unit by April 30.
The principal issues litigated in this proceeding are
whether , as alleged in the complaint , Respondent ( 1) violated
Section 8 (a)(1) of the Act by its conduct in granting its em-
ployees wage increases and other benefits and by meeting and
discussing these matters directly with its employees and (2)
violated Section 8(a)(5) of the Act by refusing to recognize
the Union as the employees ' bargaining representative unless
the Union won a Board election.
B. The Facts
1. Management meetings with employees and their
representatives prior to strike or walkout of April 22°
On April 7 a group of about 10 employees from the Re-
spondent nursing home met with Administrator Schwartz.
They told Schwartz that they had certain problems and griev-
ances which they would like to discuss with him and with
IDAK representatives and requested him to set up a meeting
for this purpose.
Accordingly, Schwartz arranged a meeting for this purpose
for the following Tuesday, April 13. Schwatz had posted
notices on the timeclock, advising each department on each
of the three shifts to choose employee representatives to at-
tend this meeting . The meeting was thus attended by em-
ployee representatives from each shift in the various depart-
ments such as housekeeping, maintenance , kitchen , nurses
aides, and the licensed personnel. In addition, other em-
ployees also attended as observers. There was a total of about
15 to 20 employees in attendance . Management was repre-
sented by Administrator Schwartz and by IDAK Represent-
ative Mrs. Platt and Mrs. Holden. The former is the director
and supervisor of nurses and nursing coordinator; the latter
is a director of IDAK corporation. The meeting lasted be-
tween 1 and 2 hours.
The employee representatives had obtained a list of griev-
ances from the employees of their respective departments and
they presented this list to the management team. These griev-
ances revolved primarily around internal working conditions
and requests for wage increases . The grievances relating to
working conditions included such matters as labor loads and
cleanliness. All grievances were openly discussed and answers
were given to many of them. Thus, Mrs. Holden told the
nursing director, who was also present, to hire more people.
She told the employees that their complaints relating to the
kitchen would be referred to the main dietition at IDAK
Central, that more supplies and dishes would be forthcoming,
and that more help and another day nurse would be hired.
The employees questioned the vacation and weekend differen-
tial policies. Mrs. Holden explained the existing vacation
policy of which the employees were not fully aware. She told
them that they could not expect to get weekend differential
because that was not paid in any of the other IDAK homes.
With respect to the grievances concerning which Mrs.
Holden had no specific answer that day, she told the em-
ployees that management would have to work on them. With
The findings in this section are based on a composite of the mutually
consistent and undisputed testimony of Respondent Administrator
Schwartz, Director Holden of the IDAK corporation and striking employee
Marie Orlowski, the only witnesses who testified with respect to the matters
set forth in the text.
respect to wage increases, Mrs. Holden promised that the
employees would receive a wage increase without setting any
specific amount for any employee. She told them that the
specific amount of the wage increase would be brought back
to them within 10 days, that they would set up a program and
establish a minimum and maximum for each classification, as
the employees had requested, and that she would bring this
package plan back to the employees at another meeting to be
held within 10 days.
2. Events immediately preceeding strike or walkout of
April 22
a. Management activities
Immediately after the April 13 meeting, management rep-
resentatives started work on putting together the promised
package plan. At the very outset, the management team met
with Administrator Schwartz to discuss the number of em-
ployees involved in the various classifications and generally
their length of service and quality of their work. Mrs. Holden
requested Schwartz to prepare and to submit to her a list
showing each employee's length of service and a recommen-
dation as to whether the employee was a fair, bad, indifferent,
or good worker. She then went back and discussed with
IDAK's executive vice president, Kline, the increase in
staffing and the amount of wage increase. As a result of these
discussions, they determined the specific amounts of the wage
increase which they could afford to give to these employees.
Additional work was necessary before the program could be
presented to the employees because "all these are computer-
ized processes and have to be broken down and entered into
the computer" and "the home has to be notified of what
increases are going to take place, and so forth." All this was
finally completed and a wage schedule was formulated which
was to be taken back to the employees at the nursing home
within the 10-day period promised at the April 13 meeting.
b. Employee groups question Schwartz
Meanwhile, on April 15 a group of employees came to
Schwartz and stated that they would like to have an answer
from management by Thursday, April 22. On April 21, Mrs.
Platt came to the Respondent nursing home on a routine visit.
Schwartz asked her at that time when he was going to have
the package plan. She replied that he would get the package
within the time promised. That afternoon a group of em-
ployees came to Schwartz and inquired as to whether or not
he had "heard from the office." He told them what Mrs. Platt
had told him, that is, that he would get an answer within the
prescribed time.
The day-shift hours are from 7 a.m. to 3:30 p.m. Between
8:30 and 9 a.m. on April 22, a group of day-shift employees
came down to Schwartz's office and asked if he had heard
from the office about the "package" plan. He replied that he
had not but promised that, if he did not receive a call or the
"package" before the end of the day shift, he "would contact
the office." He asked whether "they had any additional prob-
lems or anything they would care to have" him "call the office
about." They replied in the negative. In response to his fur-
ther inquiry as to whether "everything" was "all right," they
said, "fine." Schwatz thereupon turned around and walked
out of the office.
3. Strike or walkout commencing morning of April 22
A strike or walkout of about 16 to 18 employees took place
from April 22 to about the middle of May. After his conversa-
tion with the group of employees on the morning of April 22,
as set forth in the preceding paragraph, Schwartz was in his
office doing some paperwork when the receptionist came in
NORTH SHORE CONVALESCENT HOME
and informed him that a group of employees had walked out.
Upon investigating , he found that six or seven employees had
walked out . Some employees who were on vacation or sick
leave on April 22 later joined the strike and participated in
the picketing which began later in the afternoon on April 22.
4. Management meeting with employees and their
representatives on April 225
About 10 a.m. on April 22 Mrs. Holden and Mrs. Platt
arrived at Schwartz 's office . Mrs. Holden had in her posses-
sion a breakdown for each employee of the wage increases
which had been promised at the April 13 meeting and also
a copy of the personnel policies , as the employees had not
fully understood the benefit program which was then in effect.
Upon their arrival , they learned that some employees had
walked out earlier that morning.
Schwartz arranged a meeting of the employees for 1 p.m.
He notified employees from the different shifts , asking them
to attend said meeting . He also telephoned employees from
the other shifts which were not yet at work to attend this
meeting . The meeting was attended by several employees
from each shift. Management was represented by Mrs.
Holden , Mrs. Platt , and Schwartz . The meeting started at 1
p.m. and lasted about 1% hours. There were no pickets outside
the plant during the meeting and no one in attendance knew
the whereabouts of the employees who had walked out that
morning.
Mrs. Holden explained the general scope of the wage in-
crease program and also the benefit program which had been
in effect without change since its revision in November 1970.
A set wage program was established with a minimum and
maximum rate for each category . Briefly, the program pro-
vided that raises would be granted on the basis of length of
service and individual merit and that the initial wage increase
would be made after the first 45 days of employment. Wage
increases were announced for all those who had been em-
ployed at least 45 days and the raises were made effective as
of Sunday, April 18, as the weekly pay period starts on a
Sunday. The shift representatives stated that they accepted
the wage package for the employees of their respective shifts.
5. Meeting of strikers on afternoon of April 22 and
commencement of union organizational campaign
A meeting of the strikers was held at the home of employee
striker Marie Orlowski about 2 p.m. on April 22. About 14
or 15 employees were present . Also present was James
Moore, the Union's assistant business agent , and Edward
Sullivan , the business agent of the local Union . Sullivan did
most of the talking on behalf of the Union.
The girls told Sullivan about the problems they were hav-
ing at the nursing home concerning working conditions and
wage increases and about their meetings with Schwartz and
other management representatives on these matters. They
explained that the reason for their walkout was that they felt
they were not getting anywhere with the management repre-
sentatives and that management was stalling and "giving
them a run around ." During this meeting, Moore solicited
employee signatures to union authorization cards and was
successful in getting about seven signed cards.
' The findings in this section are based on a composite of the mutually
consistent and undisputed testimony of Respondent Administrator
Schwartz and Director Holden of the IDAK corporation , the only witnesses
who testified with respect to the matters set forth in the text.
739
6. Union first requests recognition on afternoon of April
22 and Respondent refuses
Toward the end of the Management meeting with the em-
ployees on the afternoon of April 22, after everything had
already been resolved , Schwartz was called to answer a tele-
phone call and left the room for that purpose. When he
returned , he told Mrs . Holden that it was a gentleman who
had identified himself as being a union representative who
was representing the employees.
The telephone call was from Business Agent Sullivan who
identified himself as a union representative and stated he
represented the employees at the North Shore Convalescent
Home but was not at liberty to mention any names . Sullivan
said "something about representing [the employees] in a
vote." Schwartz replied that he had no authority to do what
Sullivan asked , adding that Schwartz would have to contact
his office . I find that this telephone conversation occurred
somewhere between 2 and 2 : 30 p.m ., and probably closer to
2:30.6
Schwartz immediately telephoned IDAK's executive vice
president, Kline, and related Sullivan 's telephone conversa-
tion . Kline stated that he would get back to Schwartz.
About 3 o'clock that same afternoon , Sullivan came into
Schwartz's office and asked if Schwartz had heard from
IDAK . Schwartz replied that he had not . When Sullivan
stated that he had to have an answer by 3:30 p . m., Schwartz
said that he could not promise an answer by that time. Sul-
livan thereupon stood up and walked out of the office. At that
time some of the employees were outside the building picket-
ing.
"At approximately 2:30 or so in the afternoon" of April 22,
Union Assistant Business Agent Buffum telephoned Re-
spondent 's Attorney Furnari , claimed to represent a majority
of the employees at the Saugus nursing home and requested
recognition . Furnari stated he would contact his client and
call back . About 10 minutes later Furnari called back and
stated that his client would not agree to recognition . Furnari
added that they could go to a quick consent election. How-
ever , in another telephone call to Buffum a short time later
that day Furnari stated that his client would not agree to a
consent election.'
7. Employees receive, and strikers learn of, wage increases
The wage increases were made effective as of Sunday, April
18. At the April 22 meeting , the employees who remained at
work were surprised to hear that those who had walked out
would also get a wage increase and they communicated that
fact to the strikers. That same day, some of the employees
who had not joined the strike informed Schwartz that those
6 Sullivan did not appear as a witness in this trial . Schwartz testified that
he could not recall what time this telephone call took place. It is undisputed,
as I have previously found, that the management meeting with the em-
ployees began at 1 p.m . that day and lasted about an hour and a half. It is
also undisputed that the meeting of the striking employees at Marie Orlow-
ski's home began at 2 p.m. that day. As that meeting and the solicitation of
the employees in attendance to sign union cards must have consumed some
time and as Mrs. Holden credibly testified that Schwartz was called to the
telephone toward the end of the management meeting after everything had
already been resolved, it seems more than likely that it was close to 2:30 p.m.
When Sullivan telephoned Schwartz.
Buffum explained that he called Attorney Furnari because Furnari had
represented the IDAK corporation on labor matters in the past , had signed
a consent stipulation for an election as the attorney for IDAK Convalescent
Centers, Inc., and had negotiated contracts for IDAK with a Retail-
Wholesale local . Upon the basis of the foregoing and other facts hereinafter
set forth , I find, contrary to the contention of Respondent 's Attorney Ra-
vech, that Furnari acted as Respondent's agent in these matters so as to
render Respondent liable for his conduct.
740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on the outside did not believe that they were also granted a
raise. For that reason , Schwartz told some of the strikers the
next day, Friday, April 23, that they had been told the truth
about the wage increases.
On April 30, a number of employees showed their pay-
checks to strikers because these checks reflected a wage in-
crease. However, the checks reflected the wages for the week
commencing Sunday, April 18. In addition , strikers who were
on vacation or on sick leave during part of the strike, received
checks which reflected pay increases for their vacation or sick
leave period.
8. Union again requests recognition and Respondent again
refuses
About 4 p.m. on April 28 Union Respresentatives Buffum
and Newman met with Respondent Attorneys Furnari and
Ravech. Buffum claimed that the Union represented a
majority of the employees at the Saugus nursing home, re-
quested that the Union be recognized as the bargaining agent,
and handed Furnan a paper which, among other things,
specified the requested appropriate unit. Furnari read the
document and then stated that they could not recognize the
Union. However, he added that he was not ready to go to an
election. Buffum exclaimed that now they could not go to an
election because wage increases were granted which, Buffum
claimed, had destroyed the majority. The attorneys denied
knowledge of any wage increases.
On May 4 Union Representatives Buffum and Newman
met with Respondent's representatives, Attorney Ravech and
IDAK's executive vice president, Kline, at the offices of the
State Labor Relations Commission in Boston , Massachusetts.
Also present was a State Board Examiner . Buffum again
requested recognition, claiming to represent a majority of the
employees in an appropriate nursing home unit and offering
to prove the majority claim by a card check if Kline would
agree to grant recognition . Kline refused , stating that "we
want to go for an election." Buffum refused to go to an
election and accused Kline of having destroyed the Union's
majority by granting the employees a wage increase. Kline
retorted that he could give his people an increase any time he
felt like it. At that point, Ravech questioned the jurisdiction
of the State Board. The State Examiner said that he would
make his recommendations to the full commission.
9. Management representatives talk to individual strikers
a. Administrator Schwartz
Administrator Schwartz admitted that during the strike he
contacted some strikers, individually, to come back to work,
that he "told them the company had promised to give them
the policy it had promised to give them," and that he stated
that he would like to have them come in so that he could go
over the program with them.
On April 23, Schwartz telephoned striking employee Hud-
son at his home. Schwartz stated that the IDAK corporation
had presented him with a package plan for the employees and
that he would like Hudson to get some of the girls who were
on strike to come in either as a group or individually to
discuss the package plan. Schwartz added that if they were
afraid to go to the nursing home because they might be seen
by some people, he would arrange to meet them at night.
Hudson replied that he was not a representative of the em-
ployees and could not speak for the girls but promised to ask
them if they would consider it. About the middle of the
following week, Schwartz again telephoned Hudson and told
him the same thing, mentioning something about a 12-cent
wage increase for the employees as part of the package plan.
Hudson again replied that he was not a representative but
that he would tell the girls and they could discuss it if they
wished.
On April 25 or 26 Schwartz telephoned striking employee
Cecilia Hinds and asked if she would come in. She replied
that she was "rather, disgusted, at the way ,some of the work
was going." A day or two later he telephoned her again. He
asked her to come in alone or with somebody else to talk
things over and see if they could come to some kind of an
understanding, in which event her name would be kept on the
payroll. Hinds replied that she would think it over. Later that
day Hinds telephoned Schwartz and informed him that she
could not go through a picket line because that was against
her principles. When Schwartz inquired if Hinds would come
back if the rest of the employees returned, she replied in the
affirmative.
b. George Ferencik
George Ferencik was the administrator of the IDAK
Brigham Convalescent Home in . Newburyport, Massa-
chusetts. Brad Moore, who was IDAK's Assistant Director
of Operations, requested Ferencik to keep in touch with
Schwartz and to assist him in any way he could during the
strike. I find that Respondent was responsible for Ferencik's
conduct hereinafter set forth.
About May 10, Ferencik telephoned striking employee
Hudson at his home, discussed Respondent's package plan
and stated that the employees might as well come back be-
cause they were not going to get anything more than what
IDAK had offered. He pointed out that Brad Moore had
taken a personal poll of the employees and found that the
majority really did not want, the Union. Ferencik added that
the employees really did not need the Union, as they could
negotiate themselves through their representative and would
not have to pay out any union dues.
The findings in the preceding paragraph are based on the
credited testimony of Hudson. Ferencik denied that he ever
talked to Hudson relative to union activity or about union
dues or a union poll. He denied that any poll of the em-
ployees' union sentiments was ever taken. He did not deify
having telephoned Hudson at his home and having discussed
the package plan with'him. Brad Moore denied that he ever
took a personal poll of the employees about whether or not
they wanted the Union. Moore impressed me favorably as a
credible witness. Moreover, `if such a poll had in fact been
taken, there clearly would have been a number of employee
witnesses to such an event. Yet, the General Counsel did not
produce a single employee witness to testify to such a poll.
Under all the circumstances, I find that no such poll was in
fact taken. On the other hand, Ferencik did not impress me
as a very credible witness and I am not convinced that Hud-
son's testimony relating to the above-detailed conversation of
Ferencik was made out of whole cloth and a complete fabrica-
tion. Under all the circumstances, I credit Hudson's tes-
timony in full and find that Ferencik did make the statements
attributed to him, including the false statement about a poll
having been taken by Brad Moore.
c Brad Moore
A few days before the end of the strike, IDAK' s assistant
director of operations, Brad Moore, spoke to striking em-
ployee Cecilia Hinds while she was on the picket line. Moore
spoke to her about Respondent's package plan and the wage
increases which had been granted. Moore also stated that a
lot of mistakes had been made and that they were going to
try to rectify them.
NORTH SHORE CONVALESCENT HOME 741
10. Management meetings with employees and strikers
during strike
a. Meeting of May 9
Schwartz posted a notice on the timeclock, calling for a
meeting of employees on Sunday afternoon, May 9, relative
to an explanation of the package plan which had been offered
on April 22. About 14 nonstriking employees attended. The
only employee strikers present were Richard Hudson and
Marie Orlowski who had heard about the meeting through
the grapevine. Management was represented by Administra-
tor Schwartz who presided over the meeting, Director of
Nursing Services Mrs. Platt and Administrator Ferencik of
IDAK's Newburyport facility.
Schwartz explained the same package plan which had been
presented to, and accepted by, the employees' representatives
on April 22, without any changes having been made therein.
This included pay raises and the existing benefits program, as
previously mentioned. Ferencik answered some of the em-
ployees' questions which they had concerning the Company's
existing policies regarding some of the employee benefits.
With respect to the employees' problems concerning working
conditions, Mrs. Platt stated that they would try to do better,
to get more help, and to do everything possible to rectify their
grievances. Mrs. Platt asked why the employees did not come
to her if they had problems and were not getting' anywhere
with them.
b. Meeting of May 10
On Monday , May 10, Schwartz held another meeting at
the nursing home with striking employees Hudson , Leslie
Whetzel and Dona Benson in attendance . Also present was
George Ferencik. Hudson attended this meeting in order to
get further details about the package plan. The other two girls
had not been present at previous meetings . The meeting
lasted between a half hour and an hour,.
The same package plan again was explained to the em-
ployees who were then asked if they were coming back to
work. The employees indicated that they did not know. They
kept on talking until Schwartz finally said, "you are really not
benefiting anybody by being out. If you come back we will
keep you on the payroll . We are not going to give in to the
Union . What we offered you [the package plan], is all you are
going to get."
c. Meeting of May 11
Schwartz and Ferencik met again on Tuesday , May 11,
with Hudson , Benson , and Whetzel . Also present for the first
time was striking employee Carol Garrett who heard about
the meeting the preceding night from Whetzel . This meeting
was held in the dining room of the nursing home.
The employees were told that there would be no hard
feelings when they came back to work and that things might
be difficult for them at first but to hold out and things would
be better. All four striking employees returned to work the
next day.
C. Conclusions
1. The alleged 8(a)(1) violations
The complaint alleges, and the General Counsel contends,
that Respondent violated Section 8 (a)(1) of the Act by its
alleged conduct in (a) offering and granting unit employees
wage increases and fringe benefits while a question concern-
ing representation existed , (b) polling employees as to their
support for the Union while a question concerning represen-
tation existed and (c) bargaining directly and individually
with unit employees with respect to wages, hours, and work-
ing conditions after the Union requested and was refused
recognition. Based on the factual findings previously detailed,
I find, as hereinafter noted, that Respondent's conduct was
not violative of the Act.
a. As to the offers and grants of wage increases and fringe
benefits while an alleged question concerning representation
existed
As previously found, at the meeting with the employee
representatives and employee observers on April 13, Re-
spondent promised that the employees would receive a wage
increase, that they would he informed of the specific amount
of their increase at another meeting to be held within 10 days
and that at that time Respondent would bring back a package
plan which would establish a minimum and maximum wage
for each category, as the employees had requested. With
respect to the employees' grievances relating to working con-
ditions, Respondent at that April 13 meeting disposed of
many of them with specific answers and promised that man-
agement would have to work on the others, all as previously
found.
Respondent kept its promise. At the April 22 meeting with
the employee representatives, Respondent explained the es-
tablishment of a set wage increase program based on length
of service and individual merit, with a minimum and max-
imum rate for each category, and announced the wage in-
creases granted to all employees who had been employed at
least 45 days to be effective as of the beginning of-the work-
week, Sunday, April 18, all as previously found. Because
employees had indicated at the previous meeting that they
either did not understand or were not fully aware of the
current benefit program, Respondent at this April 22 meeting
also explained its benefit program which had been in effect
without any changes since its revision in November 1970, also
as previously found.
While the announcement of the foregoing wage increases
and employee benefits occurred after, and with knowledge
that, some of the employees had walked out that morning, it
nevertheless was before Respondent was made-aware of the
existence of the Union on the scene and before any union
representative had informed Respondent of its claim to,repre-
sent the employees, as the previously detailed facts clearly
demonstrate. Indeed, on April 22 the Respondent was merely
carrying out what it had already set in motion at the April
13 meeting. Although the employees did not actually receive
the wage increase until April 30, that paycheck, as previously
found, reflected the wages for the week commencing Sunday,
April 18, consistent with Respondent's announcements at the
April 22 meeting. Nor does it seem significant that some
employees did not learn of the wage increase until they re-
ceived their paycheck on April 30, as all employees were not
present at the April 22 meeting. The wage increase and
benefit program which Respondent's representatives later
discussed with individual striking employees and with em-
ployee groups at the May meetings was the same package
plan which at the April 22 meeting Respondent informed the
employee representative it was putting into effect. As I previ-
ously found, at no time after the April 22 meeting did Re-
spondent make any changes in its announced wage raise and
benefit program.
In view of all the foregoing, I find that Respondent's offer
and grant of wage increases and fringe benefits was not, and
indeed could not have been, made for the purpose of under-
mining the Union's representative status or impinging upon
the employees' rights guaranteed by Section 7 of the Act.
Indeed, it would have been unlawful for Respondent, after it
became aware of the Union's presence, to have withheld its
promised wage increases merely because the Union was now
742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on the scene . I find that , under the circumstances disclosed
by this record, the above-described conduct of Respondent
did not violate Section 8(a)(1) of the Act.'
b. As to polling the employees
The complaint alleges that "Brad Moore, on or about May
7, 1971, at the Saugus facility, polled the employees as to their
support for the Union while a question concerning represen-
tation existed." As I have previously found , no such poll was
in fact made.
c. As to bargaining directly and individually with unit
employees
While it is true that Respondent 's representatives discussed
with individual strikers and with employee groups the Re-
spondent 's package plan with its wage increase program after
the Union had claimed to represent the employees and its
request for recognition had been denied, as previously found,
it is also true as I herein find that in these instances Respond-
ent's representatives were not bargaining with the employees
but were merely explaining and repeating the same package
plan which Respondent announced to the employee repre-
sentatives at the April 22 meeting and put into effect at that
time. As previously found, at no time after the April 22
meeting did Respondent make any changes in its announced
wage raise and benefit program and no such changes were
included in the discussions which Respondent 's representa-
tives had directly with the employees. Accordingly, I find
that the conduct engaged in by Respondent in these respects
was not violative of the Act.
2. The alleged 8(a)(5) violations
The complaint alleges, and the General Counsel contends,
that Respondent violated Section 8(a)(5) of the Act by refus-
ing to recognize the Union. as the bargaining representative
of the employees in an appropriate unit although the Union
had been designated as such representative by a majority of
the employees in said unit and by bargaining directly and
individually with unit employees . Based on the factual
findings herein detailed and controlling precedent , I find, as
hereinafter noted , that Respondent's conduct was not viola-
tive of the Act.
In agreement with the General Counsel, I find that the unit
alleged in the complaint is the standard type unit common to
the nursing home industry and constitutes an appropriate
unit for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act. I further find, in agree-
ment with the General Counsel, that by April 30 the Union
had in its possession authorization cards which had been
validly signed by a majority of the employees in said unit.
As previously found, Respondent did refuse to recognize
the Union as the bargaining representative of the unit em-
ployees on the basis of signed authorization cards. Instead,
Respondent insisted on an election as the means of proving
the Union's representative status. As I have found that Re-
spondent did not commit any unfair labor practices, it fol-
lows, as I further find, that its conduct in this respect did not
constitute a refusal to bargain within the meaning of Section
8(a)(5) of the Act and does not warrant a bargaining order.'
Nor, as I have also previously found, did Respondent's dis-
cussions with individual strikers and groups of unit em-
ployees constitute bargaining with the employees or conduct
violative of the Act.
3. The strike
The complaint alleges that the-strike which commenced on
April 22 "was prolonged by theuntair labor practices" of
Respondent. As I have found that Respondent did not engage
in any unfair labor practices, I further find that this allegation
is without any record support.
CONCLUSIONS OF LAW
By its conduct previously detailed, Respondent has not
engaged in any unfair labor practices within the meaning of
Section 8(a)(1) and (5) of the.Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings and conclusions
and pursuant to Section 10(c) of the National Labor Rela-
tions Act, as amended, I hereby recommend that the com-
plaint against IDAK Convalescent Centers; Inc. d/b/a/
North Shore Convalescent Home, Inc., Saugus, Massa-
chusetts, be dismissed in its entirety.
8 See, e.g ., Bisso Towboat Company, Inc., 192 NLRB No 116. 1 N.L R.B. v. Gissel Packing Co., 395 U.S 575