Seaview Manor for Adults

National Labor Relations Board - Board Decisions

Jan 27, 1976

222 N.L.R.B. 596 (N.L.R.B. 1976)

596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Harry Edison, Divadar Marcovici I and Bertram
Fried,' a Co-Partnership doing business as Seaview
Manor Home for Adults and Local 1115 Joint
Board, Nursing Home and Hospital Employees Di-
vision 3
Medical and Health Employees Union Local # 4,
AFL-CIO 4 and Local 1115 Joint Board , Nursing
Home and Hospital Employees Division. Cases
29-CA-3970 and 29-CB-1891
January 27, 1976
DECISION AND ORDER
By MEMBERS FANNING, JENKINS, AND PENELLO
On June 23, 1975, Administrative Law Judge Her-
bert Silberman issued the attached Decision in this
proceeding. Thereafter, Respondent Employer filed
exceptions and a supporting brief, and the General
Counsel filed cross-exceptions and a brief in support
of said cross-exceptions and the Decision of the Ad-
ministrative Law Judge.
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, the cross-
exceptions, and briefs and has decided to affirm the
rulings, findings, and conclusions of the Administra-
tive Law Judge and to adopt his recommended Order
as modified herein.
The Administrative Law Judge properly found
that Respondent engaged in the following unfair la-
bor practices:
The Company through Partner Marcovici violated
Section 8(a)(1) of the Act by threatening employee
Evelio Brito with reprisals if he engaged in union
activities.'
The Company through Partner Fried violated Sec-
tion 8(a)(1) and (2) of the Act by soliciting employee
Abigail Quijano to sign an authorization card for Lo-
cal 4.
The Company further violated Section 8(a)(1) and
(2) of the Act by recognizing Local 4, which did not
represent a majority of the employees, as their exclu-
sive bargaining representative and by entering into
'Herein called Marcovici
2 Herein called Fried.
3 Herein called Local 1115
4 Herein called Local 4
5 Marcovici told Brito that there was no union in Seaview Manor and
made reference to the fact that as an immigrant he was subject to possible
deportation.
and maintaining in effect a contract, dated July 17,
1974.6 The Company violated Section 8(a)(3) of the
Act by including therein a union-shop provision.
Local 4 violated Section 8(b)(1)(A) and 8(b)(2) of
the Act by agreeing to and executing said contract
with the Company.
We also find, contrary to the Administrative Law
Judge, that the Company engaged in certain addi-
tional 8(a)(1) violations:
As indicated above, about a week after she began
her employment with the Company on June 27, Qui-
jano signed an authorization card for Local 4 when
Fried unlawfully directed her to do so. Marcovici
then told Quijano not to sign any other cards. The
Administrative Law Judge correctly held that
Marcovici's instruction to Quijano "constituted an
additional infringement upon employees' self-organi-
zational rights." However, he erred in stating that no
allegation in the complaint refers to this subject and
that there can be no unfair labor practice finding for
that reason and because Marcovici was not ques-
tioned and Quijano was not cross-examined with re-
spect thereto. As noted in the Administrative Law
Judge's Decision, paragraph 11 of the complaint al-
leges, inter alia, that the Company violated Section
8(a)(1) of the Act by threatening employees with re-
prisals if they joined or assisted Local 1115, a rival
union, and by warning and directing employees to
refrain from becoming or remaining members of Lo-
cal 1115 and giving any assistance or support to it.
As we deem the foregoing language of the complaint
sufficiently broad to encompass Marcovici's instruc-
tion to Quijano not to sign any other card, we find
that Marcovici thereby violated Section 8(a)(1) of the
Act. We also find in disagreement with the Adminis-
trative Law Judge that the failure to question Mar-
covici or cross-examine Quijano does not warrant the
conclusion that the matter was not fully, litigated as
the Company did not avail itself of the opportunity
to do so.
On July 23 or 24, Quijano and other employees
signed authorization cards for Local 1115. Thereaf-
ter, Fried, who was advised that the employees de-
sired to be represented by that labor organization,
told Quijano and some of the other employees that
by signing cards for Local 1115 they had caused him
trouble and "that he didn't want Local 1115 because
he had planned on [Local 4] and all unions are the
same no matter what union [the employees] take, if
[the employees] were going to get any benefits, it was
going to be through him, not through the union." On
July 24, Fried also told Quijano and two other em-
ployees that the Company was "planning on taking a
union but the [Company] didn't know which one and
6 All dates below refer to 1974.
222 NLRB No. 94
SEAVIEW MANOR HOME 597
[it] was talking to Local 4 but he really didn't want
any union in." We find that Paragraph 11 of the
complaint embraces the foregoing conduct and that
the Company thereby violated Section 8(a)(1) of the
Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge as modified
below and hereby orders that Respondent Employer,
Harry Edison, Divadar Marcovici, and Bertram
Fried, a Co-Partnership doing business as Seaview
Manor Home for Adults, Far Rockaway, New York,
its agents, successors, and assigns, and Respondent
Union, Medical and Health Employees Union Local
# 4, AFL-CIO, Elmhurst, New York, its officers,
agents, and representatives, shall take the action set
forth in the said recommended Order, as so modi-
fied:
1. Insert the following as paragraphs A,1,(f), (g),
and (h) and reletter the subsequent paragraph ac-
cordingly:
"(f) Telling employees not to sign authorization
cards for any union.
"(g) Telling employees that the Company does not
want Local 1115 Joint Board, Nursing Home and
Hospital Employees Division and that the Company
prefers Medical and Health Employes Local # 4,
AFL-CIO.
"(h) Telling employees that while it does not want
any union, it plans to recognize one union, and that
it is talking to Medical and Health Employees Local
# 4, AFL-CIO, for that purpose."
2. Substitute the attached notice for the Adminis-
trative Law Judge's notice marked "Appendix A."
IT IS FURTHER ORDERED that the notices to be post-
ed by both Respondent Employer and Respondent
Union shall be posted in both English and Spanish.
APPENDIX A
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT recognize Medical and Health
Employees Union Local # 4, AFL-CIO, as the
exclusive collective-bargaining representative of
any of our employees unless and until said
Union has been certified as representative by
the National Labor Relations Board.
WE WILL NOT apply to our employees the con-
tract with Local 4, dated July 17, 1974.
WE WILL NOT withhold or deduct from the
wages of any of our employees any monies pur-
suant to the checkoff provisions of said contract.
WE WILL NOT contribute support to Local 4 in
any other manner.
WE WILL NOT encourage membership in Medi-
cal and Health Employees Union Local # 4,
AFL-CIO, or any other labor organization, by
conditioning the hire or tenure of employment
or any term or condition of employment of any
of our employees upon membership in, or dues
payment to, any such labor organization except
as authorized in Section 8(a)(3) of the National
Labor Relations Act, as amended.
WE WILL NOT threaten employees with repri-
sals if they engage in union activities.
WE WILL NOT tell employees not to sign au-
thorization cards for any union.
WE WILL NOT tell employees that the Company
does not want Local 1115 Joint Board, Nursing
Home and Hospital Employees Divisions and
that the Company prefers Medical and Health
Employees Union Local # 4, AFL-CIO.
WE WILL NOT tell employees that while we do
not want any union, we plan to recognize one
union, and that we are talking to Medical and
Health Employees Union Local # 4, AFL-CIO,
for that purpose.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of the rights to self-organization, to bar-
gain collectively through representatives of their
own choosing, and to engage in other concerted
activities for the purpose of collective bargaining
or other mutual aid or protection, or to refrain
from any or all such activities, except to the ex-
tent that such rights may be affected by an
agreement requiring membership in a labor or-
ganization as a condition of employment as au-
thorized in Section 8(a)(3) of the National Labor
Relations Act.
WE WILL jointly and severally with Medical
and Health Employees Union Local No. 4,
AFL-CIO, reimburse our former and present
employees for any dues or moneys deducted
from their wages and paid to Local 4, together
with interest thereon at the rate of 6 percent per
annum.
HARRY EDISON, DIVADAR MARCOVICI AND
BERTRAM FRIED, A CO-PARTNERSHIP DOING
BUSINESS AS SEAVIEW MANOR HOME FOR
ADULTS
598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DECISION
STATEMENT OF THE CASE
HERBERT SILBERMAN, Administrative Law Judge: A
charge and an amended charge having been filed in Case
29-CA-3970 on August 16 and December 18, 1974, re-
spectively, against Harry Edison, Divadar Marcovici, and
Bertram Fried, a co-partnership doing business as Seaview
Manor Home for Adults,' herein sometimes called the
Company or the Employer, and a charge and an amended
charge having been filed on the same respective dates in
Case 29-CB-1891 against Medical and Health Employees
Union Local # 4, AFL-CIO, herein called Local 4, by
Local 1115 Joint Board, Nursing Home and Hospital Em-
ployees Division, herein called Local 1115, an order conso-
lidating the separate cases and a complaint therein were
issued on December 23, 1974. The complaint, as amended,
alleges that the Company has engaged in and is engaging
in unfair labor practices affecting commerce within the
meaning of Section 8(a)(1), (2), and (3) of the National
Labor Relations Act, as amended, and Local 4 has en-
gaged in and is engaging in unfair labor practices affecting
commerce within the meaning of Section 8(b)(1)(A) and (2)
of the Act.
A hearing in these proceedings was held on various days
between February 6 and April 4, 1975, in Brooklyn, New
York. Pursuant to permission granted the parties at the
hearing, a brief was filed with the Administrative Law
Judge by General Counsel.
Upon the entire record in the case, and from my obser-
vation of the witnesses and their demeanor, I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
The Company, a co-partnership licensed to do business
in the State of New York, is engaged in the operation and
maintenance of a home for adults at 210 Beach 47th Street,
Far Rockaway, New York. Between April 1, 1974, the ap-
proximate date the Company commenced operations, and
December 31, 1974, which period is representative of the
Company's anticipated operations, the Company received
in excess of $100,000 in gross revenues for providing care
to its residents and for related services. During the same
period the Company purchased and caused to be delivered
to its business premises food and other goods and materials
valued in excess of $20,000 which were shipped through
channels of interstate commerce from locations outside the
State of New York. Respondents admit, and I find, that the
Company is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Local 4 and Local 1115 are labor organizations within
the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Issues
By answers duly filed in these proceedings, the Company
and Local 4 deny that they committed the unfair labor
practices alleged in the complaint, as amended on January
9, 1975, and as further amended during the hearing in these
proceedings.
The issues as framed by the pleadings are whether:
Since about May 15, 1974, the Company has solicited its
employees to execute cards constituting applications for
membership in Local 4 and checkoff authorizations for the
deduction from their wages of dues and other moneys for
payment to Local 4.
As alleged in paragraph 11 of the complaint, on or about
July 24 and on various other dates in July and August
1974, (a) the Company interrogated employees concerning
employees' membership in and activities on behalf of Local
1115; (b) warned and directed employees to refrain from
becoming or remaining members of or giving assistance to
Local 1115; and (c) threatened employees with discharge
and other reprisals if they became or remained members of
Local 1115 or if they gave any assistance or support to it.
On a date after August 1, 1974, the Company and Local
4 entered into a collective-bargaining agreement, dated as
of, and effective from, July 17, 1974, whereunder, among
other things, the Company recognizes Local 4 as the collec-
tive-bargaining representative of a unit of its employees,
and which includes a provision requiring employees to be-
come and remain members of Local 4 as a condition of
continued employment notwithstanding that (1) Local 4
had not been designated or selected as collective-bargain-
ing representatives by an uncoerced majority of the em-
ployees covered by the agreement; (2) a question concern-
ing the representation of such employees existed by reason
of a petition for certification of representative which had
been filed with the National Labor Relations Board on
July 26, 1974, by Local 1115 and docketed as Case
29-RC-2714; and (3) the Company had knowledge that
Local 1115 was engaged in an organizational campaign
and that its employees had executed applications for mem-
bership in Local 1115.
Since on or about August 1, 1974, the Company has
been deducting sums of money from the wages of its em-
ployees as union dues and other union obligations and has
been paying the same over to Local 4 notwithstanding that
authorizations for such deductions had not been executed
by the affected employees.
Local 4, by its shop steward and agent, Gloria Rivera, on
or about February 4, 1975, threatened employees of the
Company with discharge and other reprisals if they testi-
fied at the National Labor Relations Board hearing in this
case scheduled to be held on February 6, 1975, although
subpenas to appear to testify had been served on such em-
ployees, and on or about March 24, 1975, threatened em-
1 The names of Respondent Employer appear in accordance with the
amendment to the complaint granted at the hearing
SEAVIEW MANOR HOME 599
ployees of the Company with discharge and other reprisals
if they appeared, pursuant to an order to show cause
served on them, at a hearing before a district judge of the
Eastern District of New York.2
B. Development of Events
The theory of General Counsel's case is that shortly after
the Company began operations both Local 4 and Local
1115 attempted to gain recognition as the representative of
its employees. Because the Company strongly opposes Lo-
cal 1115, it gave assistance to Local 4 and sought to dis-
courage support for Local 1115. The Company is accused,
among other things, of soliciting employees to sign cards
designating Local 4 as their representative, unlawfully in-
terrogating employees, and threatening employees with re-
prisals if they remained members of or assisted Local 1115.
When, on July 26,3 Local 1115 filed with the Board a peti-
tion for certification of representative, the Company and
Local 4 quickly executed a collective-bargaining agreement
which they backdated to July 17, although Local 4 then did
not represent an uncoerced majority of the Company's em-
ployees.
Respondent's defense is that Local 4 successfully orga-
nized the Company's employees as reflected by a card
check conducted on July 16, at which time it was found
that all eight employees then in the appropriate collective-
bargaining unit had signed authorization cards for Local 4.
The Company and Local 4 immediately began negotiations
and executed a contract the next day, July 17. Respondents
deny having engaged in any of the alleged unlawful con-
duct set forth in the complaint.
1. The card check
The card check was conducted on July 16 by Burton
Horowitz, an attorney and a member of the panel of labor
arbitrators of the American Arbitration Association. Ho-
rowitz testified that about a week earlier he had been con-
tacted by Robert Gordon, then president of Local 4,4 and
had arranged with Mr. Gordon to conduct a card check at
the Company's premises on July 16.5 Horowitz testified
that he arrived at the Company's premises about 11 a.m.
on July 16. He was given the "union authorization cards," 6
the employees' W-4 forms, and the Company's payroll
records. The company representatives furnished Horowitz
2 At the hearing General Counsel attempted to show that Local 4 does not
have the capacity adequately to represent the Company's employees and, in
fact , has been deficient in providing services as a representative. The Gener-
al Counsel continues to press this contention in her brief However, such
subjects are outside the scope of the complaint and therefore irrelevant to
any of the issues in this case Compare International Brotherhood of Service
Station Operators of America a!k!a International Brotherhood of Professional
Services (Urich Oil Company), 215 NLRB No. 154 (1974).
3 All dates refer to 1974 unless otherwise indicated
4 Robert Gordon became ill on July 16 and died in early August 1974
5 As of July 16 Horowitz had not spoken to or met anyone affiliated with
the Company Subsequent to July 16 Horowitz was retained to represent the
Company in the representation proceeding instituted by the petition filed by
Local 1115 and in the instant proceedings
6 The cards which Horowitz inspected were not produced at the hearing
although they had been'subpenaed from Local 4. The explanation offered
by Local 4 is that the cards have been lost
with a list of the classifications employed by them, and the
Local 4 representatives gave Horowitz the names of the
employees who worked in those job classifications. Horo-
witz then retired to a private room where he compared the
signatures on the authorization cards with the signatures
on the W-4 forms and also ascertained which cards pur-
portedly were executed by currently employed persons. He
found that there were eight employees then in the unit and
that there was an authorization card purportedly signed by
each. From a note which he retained Horowitz identified
the eight employees as: Dornescu, Gordon, Quijano, Tay-
lor, Brito, Henny, Rivera, and Lievomo.
After Horowitz completed the card check he went into
an office where there were present: Robert Gordon, Vin-
cent Gulino, currently president but then business agent
for Local 4, and the copartners of the Company. Accord-
ing to Horowitz, "I announced to them that l had checked
the union authorization cards against the W-4 forms and
the payroll and had found that the union had a majority of
the people in the unit. I described the unit to them. I said to
Mr. Fried, `let me introduce you to Mr. Gordon, your
union representative.' And then I left."
Two days later, on July 18, Horowitz mailed to Local 4
and the Company the following affidavit:
I. That he is a member of the panel of arbitrators of
the American Arbitration Association and other labor
arbitration tribunals.
2. That on July 16, 1974, he did conduct a card check
at the offices of Seaview Manor Home for Adults, 210
.Beach 47th Street, Rockaway Beach , New York to de-
termine whether the signed union cards represented a
majority of the eligible maids, aides, kitchen help,
housekeeping and dining room employees of Seaview
Manor Home for Adults, who indicated a desire to be
represented in collective bargaining by Local # 4,
Medical and Health Employees Union, AFL-CIO.
3. He examined "membership cards" and "Form
W-4, Employee's Withholding Exemption Certifi-
cates" for signature verification.
4. That the similarity of the signatures was verified to
the best of his ability. This statement is made from his
own observation and not as a handwriting expert.
5. That as a result of his examination, it was clearly
determined that the cards did in fact show that a ma-
jority of the employees desired representation.
General Counsel contends that "the alleged card check
cannot be relied on by Respondents for any reason." In
support thereof General Counsel advances the following
arguments:
1. Horowitz "did not interview employees and thus
could not say that the cards were uncoerced." This is true.
If the authorization cards are tainted because employees
were coerced into signing them or were subject to other
unlawful influence, then, regardless of the results of the
card check, they do not constitute evidence of a majority
upon which the Employer and Local 4 may rely in giving
and accepting recognition as bargaining agent.
2. "Whether because of a fraud perpetrated upon Attor-
ney Horowitz by Seaview and Local 4 , or for whatever
600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other reason, it is clear that the cards Mr. Horowitz testi-
fied he examined are not cards signed by the employees
whose signatures seemed to be affixed thereto." The argu-
ments General Counsel sets forth in support of this posi-
tion are wholly unconvincing. Although Local 4 failed to
produce the authorization cards at the hearing, I find, con-
trary to General Counsel, that, as testified to by Horowitz,
on July 16 he inspected authorization cards on behalf of
Local 4 signed by each of the eight employees then in the
unit.
2. The Local 4 authorization cards
In June and July 1974, the only officials of Local 4 were
Robert Gordon, its president, who died during the first
week of August, and Vincent Gulino, who was then busi-
ness agent. According to Guhno, the authorization cards
were obtained in the 2 weeks preceding the July 16 card
check. One day he and Gordon drove to the Company's
premises, parked their car, and went into the kitchen
through a back door. Five employees were in the kitchen.
At the hearing, Gulino was able to identify only one of the
five, namely, Gloria Rivera. Gordon spoke in English to
the employees about Local 4 and all signed authorization
cards .7 Subsequently, Gordon obtained additional cards.
According to Gulino, "I think we wound up with about
eight or nine cards, somewhere in that scope."
Although Gulino was positive that when he and Gordon
were in the kitchen at the Company's premises five em-
ployees were there and signed Local 4 authorization cards,8
Gloria Rivera testified that there were only three employ-
ees present, herself, Belen Lievomo, and Benjamin Taylor.
Lievomo corroborated Rivera in this regard.'
Evelio Brito, who neither speaks nor writes English, tes-
tified that he never signed an authorization for Local 4.
However, Horowitz tertified, and I credit Horowitz, that
among the cards he checked on July 16 was a card bearing
Brito's name. Despite this discrepancy, I believe that Bnto
was a truthful witness. Brito appeared to be a person who
is neither suspicious nor assertive and of whom one can
take advantage. It is my opinion that although Brito signed
an authorization card for Local 4 he was unaware that he
had done so.
Abigail Quijano, one of the employees whose authoriza-
tion card for Local 4 was counted by Horowitz, worked for
the Company from June 27 until August 14, when she vol-
untarily quit. Quijano testified that she signed an authori-
zation card for Local 4 about I week after she began-her
employment with the Company under the following cir-
cumstances: While she was in the lobby of the premises
there were also present Gloria Rivera, Robert Gordon, and
Bertram Fried. Fried approached Quijano, gave her a Lo-
cal 4 authorization card, and told her he wanted her to sign
it. Fried then left. Gloria Rivera introduced Quijano to
Gordon. Gordon gave Quijano a pen to use. Quijano
signed the card and gave it to Gordon.10 Then, according
to Quijano, "The other boss Mr. Marcovici, came over and
told me not to sign any other cards ..... Bertram Fried
contradicted Quijano and testified,that he never asked Qui-
jano or any other employee to sign an authorization card
for Local 4. I credit Quijano and do not credit the contrary
testimony of Rivera and Fried. Quijano no longer is in the
employ of the Company. Quijano is a neighbor and friend
of Gloria Rivera. It was upon Rivera's recommendation
that Quijano obtained employment with the Company and,
as of the dates of the hearing, the two women still main-
tained a good relationship. Although Quijano was a reluc-
tant witness at this hearing, and appeared only after a pro-
ceeding to enforce a subpena had been instituted, her
testimony was given clearly, directly and with apparent
candor. There are no indications in the record of any bias
on the part of Quijano. I find that Quijano was a complete-
ly truthful witness.
I find, therefore, that by soliciting Quijano to sign an
authorization card for Local 4 the Company contributed
support to Local 4 in violation of Section 8(a)(2), and in
violation of Section 8(a)(1) interfered with and restrained
employees in the exercise of the rights guaranteed by Sec-
tion 7 to self-organization , to join or assist labor organiza-
tions, and to bargain collectively through representatives of
their own choosing. The instruction by Marcovici to Quija-
no that she should not sign any other union authorization
cards constituted an additional infringement upon employ-
ees' self-organizational rights. However, I find no allega-
tion in the complaint that refers to this subject. The matter
was not fully litigated as Marcovici was not questioned
thereon and Quijano was not cross-examined with respect
thereto. Accordingly, I make no unfair labor practice find-
ing based upon Marcovici's instruction to Quijano.I I
3. Committee election
7 Gulino testified that the cards signed by the employees were identical to
Exh. 13, in evidence in this case.
8 In this respect Gulino testified, "I am pretty positive now, you know, as
you are talking it refreshes your memory so I am pretty sure ." Gulino ex-
plained that he had been informed that there were eight or nine employees
then employed by the Company and he is certain that Gordon and himself
had obtained five cards because he is certain that they then obtained cards
from a majority of the employees.
9 Lievomo speaks , but does not write, English . Rivera , on the other hand,
speaks English fluently and also writes English Rivera testified that the first
time she met Gulino was on July 17. Upon further examination, she testified
that when she signed her card for Local 4 Gordon and another man from
the Union were present and she cannot be sure that the other person was
not Gulino . Her recollection was very clear that she met Gulmo on July 17,
the day she testified that she witnessed the execution of the collective-bar-
gaining agreement between Local 4 and the Company . She further testified
that she is certain she did not meet Gulmo the day earlier, July 16
Gulino testified that on July 16, prior to the hour when
the card check was conducted, he was present at a meeting
held in the dining room attended by eight or nine employ-
ees at which Gloria Rivera was elected as a committee to
represent the employees. Gloria Rivera contradicted Guli-
no to the extent that she testified that Gulino was not pre-
sent when she was elected as a committee.
10 Rivera testified that she was present when Quijano signed the authori-
zation card for Local 4 She further testified that Gordon gave Quijano the
card and that Fried was not present I do not credit this testimony
ii On p 4 of her brief, General Counsel states - "Then Marcovici came
over He told her not to sign any cards given her by anyone else" General
Counsel does not in any manner explain the significance of this testimony
or the relationship that this testimony has to the unfair labor practices al-
leged in the complaint.
SEAVIEW MANOR HOME 601
4. Negotiation and execution of the contract
Vincent Gulino testified that when the card check was
completed, about noon on July 16, there was an interlude
for coffee and then he and Gordon began negotiations
with the Company's partners. Present also, according to
Gulino, was Gloria Rivera. Gulino testified, "I brought her
in." 12 The bargaining on July 16 was not intense. Gordon
was not feeling well. After 2 or 3 hours, Gordon asked
Gulino to take him home. Gulino returned the next morn-
ing at 8:30 or 9 without Gordon and negotiations contin-
ued. Gloria Rivera, but no other employee, was present
during the negotiations on this day.
According to Guhno, on two or three occasions prior to
July 16, Gordon had visited the Company's premises, had
spoken with employees, and had obtained from them infor-
mation as to their rates of pay and their other conditions of
employment, but Gordon did not tell Gulino what he had
learned. Despite the lack of such information, Gulino, nev-
ertheless, carried the negotiations to a conclusion on July
17. Gulino testified that on July 17 "we continued negotia-
tions, we completed negotiations, I ran to the office [of
Local 4], had the contract typed up, came back and we
signed the contract.- He explained that on the morning of
July 17 the company representatives told us "this is what
we can afford to do now, because they are on a budget
.. I spoke to Gloria, I says what do you think, she says
it sounds good and we accepted it." The negotiations on
July 17 occupied from 3 to 5 hours. Approximately at noon
the discussions concluded. Gulino left and went to his of-
fice to have, the contract typed. He returned an hour and a
half or 2 hours later at which time the contract was execu-
ted.13 Gulino's explanation as to how the contract could
have been typed in such a short period is that the standard
provisions of the agreement had been typed in advance
and only inserts were added.
In two respects the testimony given by Gulino at the
hearing in this case is-inconsistent with the testimony he
gave at the representative hearing held on August 16, 1974,
in Case 29-RC-2714. At the representation hearing, which
took place I month after the contract allegedly. was execu-
ted, Gulino testified that- at the negotiations "[t]here were a
couple of people that work there" but that he did not know
their names. At the instant hearing, Gulino positively testi-
fied that the only employee present was Gloria Rivera and
that before he accepted the agreement he conferred with
and obtained Rivera's approval. It is difficult to under-
stand why he was unable to remember Rivera's name of
August 16 if she played the significant role in the negotia-
tions that he described in his testimony in this case. The
second inconsistency is that at the representation hearing
Gulino testified that the agreement was typed at the prem-
ises of the Company while at the instant hearing Gulino
testified that the contract was typed at the offices of Local
4.
Jean Bosze, the individual who typed the contract, was
called as a witness to corroborate Gulino that the contract
had been typed on July 17. I find that Bosze's testimony is
valueless because she testified that the only reason she be-
lieves the contract was typed on July 17 is that that is the
date which the instrument bears and she has no indepen-
dent recollection as to the date on which she typed the
instrument.
Bertram Fried corroborated Gulino to the extent that he
testified that the negotiations were conducted on July 16
and 17, that the contract was executed about 3 p.m. on July
17, and that the persons present at the time of the execu-
tion were himself, his two partners, Gulino, and Gloria
Rivera.
Gloria Rivera testified that she was present for 2 or 3
hours on July 17 during the negotiation of the contract and
also witnessed its execution. However, Rivera was unable
to recall anything that was said during the negotiations
and, although she testified that when the discussions were
concluded the provisions of the proposed agreement were
explained to her, she was unable to remember any of its
terms.l4
Abigail Quijano testified, which testimony I credit, that
at no time during her employment with the Company,
which was from June 27 through August 14, had she been
informed that there was a collective-bargaining agreement
in existence covering the terms and conditions of her em-
ployment. Furthermore, she testified that one day after
July 23 while she was eating lunch with Gloria Rivera and
Belen Lievomo they were joined by Fried. The employees
asked Fried what was being done about the union situation
and he replied that he did not know what to do or which
Union to call in. Fried said that "they were planning on
taking a union but they didn't know which one and they
were talking to Local 4 but he really didn't want any union
in."15
Although the collective-bargaining agreement between
the Company and Local 4 is dated July 17, 1974, and pro-
vides for a 5-percent increase as of July 17, 1974, the
Company's records show that the increase was not given
until the payroll period for August 7 through August 14
and that a retroactive lump sum payment was then made
to the employees to cover the period between July 17 and
August 7. There is no evidence that any other provision of
the contract was put into effect before August 1, 1974.16
I do not believe the testimony of Gulino, Fried, and Riv-
era and I find that the contract between the Company and
Local 4 was not executed on July 17. The circumstances
suggest, and I find, that the contract was executed after
Local 1115 filed a representative petition on July 26 in an
attempt to forestall the Company's employees from desig-
14 Gloria Rivera speaks English fluently . She appears to be an alert , intel-
ligent person. I believe that had she been present during the negotiations she
would remember what transpired . Further, I credit the testimony of William
Morales that on July 23, 1974, Rivera told him that there was no union
contract covering the Company's employees
Is 1 do not credit Fried's denial The foregoing testimony of Quijano but-
tresses General Counsel's contention that the contract was not signed on
July 17 and that the Company contributed support to Local 4 1 find no
other allegation of the complaint to which this testimony relates.
12 Rivera testified that she was not present at the negotiations on July 16 . 16 Gloria Rivera testified that the benefits of the contract were put into
13 Gulino testified that the contract was executed by the three copartners . effect "as soon as the contract was signed" so that she received her wage
However, the copy in evidence contains only one signature for the Compa- increase the very next payday This testimony is contradicted by the
ny Company's payroll records.
602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hating Local 1115 as their representative in a fairly con-
ducted Board election.
5. The organizational activities of Local 1115
With the cooperation of Gloria Rivera, William Morales,
the business representative of Local 1115, on July 23 and
July 24 obtained authorization cards on behalf of Local
1115 from the following five employees of the Company:
Gloria Rivera, Belen Lievomo, Evelio Brito, Benjamin
Taylor, and Abigail Quijano. On July 26, Local 1115 filed
with the Board a petition for certification of representative.
According to the testimony of William Morales, which I
credit, he had encounters with Fried and Marcovici during
which they indicated vehement opposition to Local 1115.
Morales testified about an incident which occurred at
the end of July or in early August which General Counsel
contends establishes the allegations of paragraphs 11(b)
and 11(c) of the complaint. Morales arrived at the premises
of the Company about 9 p.m. He was admitted to the lob-
by where there were present the switchboard operator and
a guard. After talking to them for 15 or 20 minutes and as
he was leaving the premises, Morales encountered Fried
and Marcovici. He was accused of trespassing and was
threatened with arrest. They flagged a passing police car
and informed the police officer that they wanted Morales
arrested for trespassing. After some further conversation,
they stated they no longer wished to press charges. Morales
testified that the guard was able to view the encounter be-
tween himself and Fried and Marcovici but could not hear
the conversation among them. Contrary to General Coun-
sel, I find this testimony does not support the referred-to
allegations of the complaint.
Abigail Quijano testified that after she had signed the
authorization card for Local 1115 Fried had a discussion
with her, Gloria Rivera, and Belen Lievomo. Fried in-
formed them that Local 1115 had called him and had ad-
vised him that the employees wanted to be represented by
that Union. Fried also said that by signing cards for Local
1115 the employees had caused him-trouble and "that he
didn't want Local 1115 because he had planned on Num-
ber four and all unions are the same so no matter what
union we take, if we were going to get any benefits, it was
going to be through him, not through the union." " I credit
Quijano with respect to the foregoing conversation despite
denials by Fried and Lievomo. This testimony supports the
findmg'I make below that the Company unlawfully contri-
buted to the support of Local 4. I find no other allegation
of the complaint to which this testimony relates.
Evelio Brito testified that some weeks after he signed the
authorization card for Local 1115 Marcovici and Fried
came to his work station in the kitchen, and Marcovici said
to him that in Seaview Manor there was no union and
made reference to the fact that as an immigrant he was
subject to possible deportation. I credit Brito despite the
denials by Fried and Marcovici. I find that Marcovici
threatened Brito with reprisals if he engaged in union activ-
17 Quijano testified that this conversation occurred 3 days before, she quit
on August 14.
ity and that this incident constitutes a violation of Section
8(a)(1).
6. The checkoff
Starting with the payroll period for the week ending Au-
gust 14, 1974, the Company began deducting union dues
from the wages of employees and remitting such dues to
Local 4. Fried testified that the Company does not have
any checkoff authorization cards in its possession. He testi-
fied that Gulino "just showed [them] to me and he took it
back. He said he's going to keep it for his files." is
As, for reasons discussed below, I recommend that the
contract between the Company and Local 4 shall be set
aside and that the employees shall be reimbursed for any
union dues deducted from their wages, it is unnecessary for
me to decide whether the language of Section 302(c)(4) of
the Act, "That the employer has received from each em-
ployee, on whose account such deductions are made, a
written assignment.... ," requires that an executed copy
of the checkoff authorization must be delivered to the em-
ployer in order for the employer lawfully to make any
checkoff deductions.
7. Interference with court and Board processes
Paragraphs 16(b) and 16(c) which were added to the
complaint by amendment on April 1, 1975, in effect, allege
that Local 4 by its shop steward and agent, Gloria Rivera,
threatened employees with discharge and other reprisals if
they testified at the Board- hearing scheduled for February
6, 1975, or at' a district court hearing scheduled for March
24, 1975. In support of these allegations of the complaint,
General Counsel offered the testimony of Evelio Brito. Bri-
to testified that a subpena to appear at the Board hearing
scheduled for February 6, 1975, was delivered to him at the
premises of the Company by Gloria Rivera and "she told
me not to go to testify and I should remember that I have
no green card." (Green card has some reference to the wit-
ness' status as an immigrant.) Brito further testified that on
or about March 24 he was served with an order to show
cause which directed him to appear at a hearing before a
justice of the United States district court. When he asked
Rivera to translate the papers for him, she took them away
and said, "I have to take them to the boss."
There is no evidence that Gloria Rivera was authorized
to act for Local 4 in any manner inconnection with the
appearance of witnesses at either of the hearings. Also,
Brito's testimony indicates that Gloria Rivera, if purport-
ing to act for a principal, was acting for the Company and
not for Local 4. Therefore, without considering the further
objections advanced by Local 4 that the testimony of Brito
is not subject to the construction that Gloria Rivera threat-
ened him with discharge or other reprisals, I find that Gen-
eral Counsel has failed to prove that she was acting as an
agent for Local 4 and that any improper conduct on her
part can be attributed to Local 4.
18 Fried was uncertain as to when or how many times he viewed the
authorization cards The authorization cards which Local 4 solicited from
the Company's employees are entitled "Application and Check-Off Author-
ization Blank," and contain a checkoff authorization
- SEAVIEW MANOR HOME 603
C. Conclusions
According to Burton Horowitz, on July 16 there were
eight employees in the unit Local 4 claimed to represent
and he inspected authorization cards for Local 4 purport-
edly signed by each of them. Four of the eight employees
testified at the hearing. Abigail Quijano credibly testified
that she signed an authorization card for Local 4 only after
she had been solicited to do so by one of the coowners,
Bertram Fried. Evelio Brito, who neither speaks nor writes
English, testified that he did not sign an authorization card
for Local 4. I find that if a Local 4 authorization card bears
his signature it was fraudulently procured. Gloria Rivera
and Belen Lievomo testified that they signed Local 4 au-
thorization cards at the same time. Both were certain in
their testimony that when they signed the cards the only
other employee present was Benjamin Taylor. On the other
hand, Gulino, who testified that he was present when Riv-
era and Lievomo signed authorization cards for Local 4,
was positive that five employees had been present and had
signed Local 4 authorization cards on the occasion de-
scribed by Rivera and Lieovmo. I believe neither Gulino,
Rivera, nor Lievomo was a truthful witness. Furthermore,
William Morales, whom I credit, testified that on July 23
Gloria Rivera told him that Marcovici, one of the
Company's coowners, "had given her cards to sign for an-
other local." Casting further suspicion upon the validity of
the authorization cards produced by Local 4 is the fact that
Local 4 was unable to produce the authorization cards at
the hearing in this case although the cards had been subpe-
naed by General Counsel. According to Respondents' wit-
nesses the card check was conducted on July 16. Only 10
days later, a representation petition was filed by Local
1115, a rival labor organization, and a hearing in the repre-
sentation matter, at which Gulino testified, was held on
August 16. Furthermore, the cards constituted the only
checkoff authorizations executed by the Company's em-
ployees with respect to whom union dues were deducted by
the Company and remitted to Local 4 beginning in mid-
August 1974. These circumstances suggest that particular
care would have been given to insure the preservation of
the authorization cards obtained from the Company's em-
ployees. Gulino's explanation that the cards somehow dis-
appeared from Local 4's files during the confusion atten-
dant upon a move of the Union's offices from Manhattan
to Queens is unconvincing.
The principle is well established that an employer who
helps a union organize his employees violates the Act. As
was stated in International Association of Machinists; Tool
and Die Makers Lodge No. 35 v. N.L.R.B., 311 U.S. 72, 78
(1940):
Slight suggestions as to the employer's choice between
unions may have telling effect among men who know
the consequences of incurring that employer's strong
displeasure.
Section 8(a)(2) of the Act invokes "a clear legislative policy
to free the collective bargaining process from all taint of an
employer's compulsion, domination, or influence." Interna-
tional Association of Machinists, etc. v. N.L.R.B., supra, 80.
In furtherance of this policy "[i]t has repeatedly been held
that an employer may not intrude in matters concerning
the self-organization of his employees. He must refrain
from all interference. . . . Especially is this so where the
adherence of the employees is being sought by rival labor
organizations. N. L. R B. v. Jones & Laughlin Steel Corp.,
301 U.S. 1 ...." Harrison Sheet Steel Company v.
N.L.R.B., 194 F.2d 407, 410 (C.A. 7, 1952).
It is Respondent's position that on July 16 the Company
recognized Local 4 as the collective-bargaining agent of a
unit of its employees and on July 17 a collective-bargaining
agreement was executed.19 . However, the authorization
card bearing Quijano's signature was unlawfully pro-
cured 20 This taints the majority purportedly obtained by
Local 4 as the Company's solicitation of Quijano to sign an
authorization card for Local 4 is presumed to have had an
unlawful restraining effect upon other employees. A wit-
ness to the incident was Gloria Rivera. Thus, two of the
eight employees in the unit, or 25 percent, were subject to
direct constraint by Fried's unlawful conduct. "It is unnec-
essary, in negating a claim of an uncoerced majority, to
show mathematically that less than a majority freely signed
authorization cards." 21 The evidence of the Company's an-
tipathy towards Local 1115, its preference for Local 4, and
its infringements upon the rights granted employees in Sec-
tion 7 of the Act suggest that the assistance given by the
Company to Local 4 in soliciting authorization cards from
its employees was substantially more widespread than the
single incident involving Quijano. Additionally, the value
of the Local 4 authorization cards as proof of a majority is
further impaired by testimony which indicates that Brito's
card was procured by fraud and also by the discrepancies
between the testimony of Gulino and the testimony of Riv-
era and Lievomo regarding the procurement of the Local 4
cards executed by the latter two. The evidence developed
at the hearing "permits the inference that the employees
did not have that freedom of choice which is the essence of
collective bargaining." 22
I find that at no time relevant to these proceedings had
Local 4 been selected or designated as collective-bargain-
ing representative by a free and uncoerced majority of the
Company's employees in an appropriate unit. Entering into
a collective-bargaining agreement with Local 4 in such cir-
cumstances was an unlawful trespass upon the employees'
right to select a collective-bargaining representative of their
own choosing. The Company thereby violated Section
8(a)(1), and Local 4 by accepting the benefits of such un-
lawful recognition violated Section 8(b)(1)(A). By entering
into such agreement the Company also contributed unlaw-
ful support to Local 4 in violation of Section 8(a)(2). These
infringements upon the rights guaranteed employees by
19 1 find above that the collective-bargaining agreement was not executed
until some date after July 26
20 While there is no direct evidence of similar unlawful procurement of
other Local 4 cards, there is the credible testimony of Morales which sug-
gests that Marcovici may have solicited Gloria Rivera and others to sign
authorization cards for Local 4.
2'A malgamated Local Union 355 v. N L R B, 481 F.2d 996, 1002, fn 8
(C.A. 2, 1974), cert denied 414 U.S 1002 Accord- Clement Brothers Compa-
ny, Inc,165 NLRB 698 (1967), enfd. 407 F2d 1027 (C.A 5, 1969), Jan
Power Inc Maintenance Service, 173 NLRB 798 (1968), enfd 421 F 2d 1058
(C A 9, 1970).
22 International Association of Machinists, etc v. N.L.R B., supra, 79
604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section 7 of the Act were aggravated by the inclusion of a
clause in the contract which required the employees cov-
ered by its terms as a condition of employment to become
members of Local 4. In the circumstances, such union-shop
provision created discriminatory conditions of employ-
ment encouraging membership in Local 4. Therefore, by
entering into and maintaining in effect the collective-bar-
gaining agreement, dated July 17, 1974, the Company also
violated Section 8(a)(3). Similarly, Local 4 as a party to the
execution and enforcement of the agreement was engaged
in an unlawful attempt to cause the Company to create
conditions which would result in discrimination prohibited
by Section 8(a)(3) of the Act, and thereby violated Section
8(b)(2) of the Act .23
For reasons stated above, I shall recommend that para-
graphs 16(b) and 16(c) of the complaint be dismissed. As I
find that the collective-bargaining agreement, dated July
17, 1974, was unlawfully executed and maintained in ef-
fect, it is unnecessary to make a further finding that the
checkoff of union dues pursuant thereto constituted a sepa-
rate and independent violation of the Act. Accordingly, I
shall recommend that paragraph 16(a) of the complaint be
dismissed. I have found only one violation of Section
8(a)(1), independent of the unlawful support contributed to
Local 4 by the Company, I shall therefore recommend that
the remaining allegations of paragraph 11 of the complaint
be dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Company and of Local 4, set forth
in section III, above, occurring in connection with the
Company's operations, described in section I, above, have
a close, intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and tend to
lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
seniority, or other substantive feature of the relationship
between the Company and its employees which may have
been established in the performance of said contract, or to
prejudice the assertion by the employees of any rights they
may have under said agreement. It would not effectuate
the policies of the Act to permit Local 4 to retain the union
dues and other moneys which have been exacted from em-
ployees of the Company as the price of their employment
pursuant to the union-security and checkoff provisions of
the contract dated July 17, 1974, which contract I find was
entered into and maintained in effect in violation of the
Act. In order to expunge the coercive effects of such illegal
exaction, I shall recommend that the Company and Local
4, jointly and severally, reimburse the Company's present
and former employees for all dues and other moneys de-
ducted from their wages and paid to Local 4 pursuant to
the terms of the union-security and checkoff provisions of
the contract dated July 17, 1974. Reimbursement shall in-
clude interest at the rate of 6 percent per annum.
The unlawful conduct on the part of the Company and
Local 4 in entering into a collective-bargaining agreement
at a time when Local 4 was not the representative chosen
freely and without coercion by a majority of the employees
covered by said agreement indicates a purpose to defeat
the rights granted by the Act to employees to engage in
self-organizational activities, to form, join, or assist labor
organizations, and to bargain collectively through repre-
sentatives of their own choosing. The unfair labor practices
commited by Respondents are potentially related to other
unfair labor practices proscribed by the Act, and the dan-
ger of their commission in the future is to be anticipated
from Respondents' conduct in the past. The preventive
purpose of the Act will be thwarted unless the recommend-
ed Order herein is coextensive with the threat. Accordingly,
in order to make effective the interdependent guarantees of
Section 7 and thus effectuate the policies of the Act, an
order requiring Respondents to cease and desist from in
any manner infringing upon the rights of employees guar-
anteed in the Act is deemed necessary.
V. THE REMEDY
Having found that the Company and Local 4 have en-
gaged in certain unfair labor practices, it will be recom-
mended that they cease and desist therefrom and that they
take affirmative action designed to effectuate the policies
of the Act.
More specifically, I shall recommend that the Company
withdraw and withhold recognition from Local 4 as the
collective-bargaining representative of any of the
Company's employees and that Local 4 cease acting as
such representative unless and until Local 4 shall be certi-
fied as such representative by the National Labor Rela-
tions Board.
I shall also recommend that the Company and Local 4
cease giving effect to their contract dated July 17, 1974,
and to any extension, renewal, or modification thereof.
However, nothing herein shall be construed as requiring
the Company to rescind, vary, or abandon any wage, hour,
23 The Grand Union Company, 122 NLRB 589 (1958)
CONCLUSIONS OF LAW
1. By recognizing Local 4 as the exclusive bargaining
representative of its employees and by entering into and
maintaining in effect the agreement dated July 17, 1974,
which among other things requires the employees covered
thereby as a condition of employment to become and re-
main members of Local 4, although Local 4 is not the rep-
resentative of such employees within the meaning of Sec-
tion 9(a) of the Act, the Company has engaged in unfair
labor practices within the meaning of Section 8(a)(1), (2),
and (3) of the Act.
2. By agreeing to and executing the contract with the
Company dated July 17, 1974, at a time when it did not
represent a majority of the employees in the unit covered
by said agreement, Local 4 has engaged in unfair labor
practices within the meaning of Section 8(b)(1)(A) and
8(b)(2) of the Act.
3. By threatening employees with reprisals if they en-
gage in union activities, the Company has interfered with,
restrained, and coerced employees in the exercise of the
SEAVIEW MANOR HOME 605
rights guaranteed in Section 7 of the Act and thereby has
engaged in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record in these proceedings, and pursuant to
Section 10(c) of the Act, I hereby issue the following rec-
ommended:
ORDER 24
A. Respondent Employer, Harry Edison, Divadar Mar-
covici, and Bertram Fried, a co-partnership doing business
as Seaview Manor Home for Adults, Far Rockaway, New
York, its agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Unlawfully contributing support to Medical and
Health Employees Union Local # 4, AFL-CIO, or any
other labor organization, by soliciting employees to sign
authorization cards for such Union or by executing a col-
lective-bargaining agreement with any such labor organiza-
tion at a time when it does not represent a free, unassisted,
and uncoerced majority of its employees in an appropriate
unit.
(b) Recognizing Medical and Health Employees Union
Local # 4, AFL-CIO, as the exclusive collective-bargain-
ing representative of any of its employees unless and until
the National Labor Relations Board shall certify Local 4 as
such representative.
(c) Maintaining or giving any force or effect to the con-
tract with the Union dated July 17, 1974, or to any exten-
sion, renewal, or modification thereof; provided, however,
that nothing in this Order shall require the Company to
rescind, vary, or abandon any wage, hour, seniority, or
other substantive feature of the relationship between the
Company and its employees which may have been estab-
lished in the performance of said contract, or to prejudice
the assertion by its employees of any rights they may have
thereunder.
(d) Encouraging membership in Medical and Health
Employees Union Local # 4, AFL-CIO, or any other la-
bor organization, by conditioning the hire or tenure of em-
ployment or any term or condition of employment of any
of its employees upon membership in, or dues payment to,
any such labor organization, except as authorized in Sec-
tion 8(a)(3) of the National Labor Relations Act, as
amended.
(e) Threatening employees with reprisals if they engage
in union activities.
(f) In any other manner interfering with, restraining, or
coercing its employees in the exercise of the rights guaran-
teed by Section 7 of the Act.
u 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.
2. Take the following affirmative action which, I find,
will effectuate the policies of the Act:
(a) Withdraw and withhold all recognition from Medi-
cal and Health Employees Union Local # 4, AFL-CIO, as
the exclusive collective-bargaining representative of any of
its employees unless and until said Union has been duly
certified as such representative by the National Labor Re-
lations Board.
(b) Jointly and severally with Local 4 reimburse its em-
ployees, former and present, for all dues and other moneys
illegally exacted from them by or on behalf of Local 4 in
the manner provided in the section herein entitled "The
Remedy."
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records neces-
sary to analyze the amounts due to its employees under the
terms of this recommended Order.
(d) Post at its place of business in Far Rockaway, New
York, copies of the attached notice marked "Appendix
A." 25 Copies of said notice, on forms provided by the Re-
gional Director for Region 29, after being duly signed by
its authorized representative, shall be posted-by Respon-
dent Company immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by the Respondent Company to insure that said no-
tices are not altered, defaced, or covered by any other ma-
terial.
(c) Notify the Regional Director for Region 29, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent Company has taken to comply herewith.
B. Respondent Union, Medical and Health Employees
Union Local # 4, AFL-CIO, Elmhurst, New York, its offi-
cers, agents, and representatives, shall:
1. Cease and desist from:
(a) Acting as the exclusive collective-bargaining repre-
sentative of any of the Company's employees unless and
until certified as such representative by the National Labor
Relations Board.
(b) Attempting to enforce or to apply the contract with
the Company dated July 17, 1974, or any extension , renew-
al, or modification thereof, and from entering into, main-
taining, or enforcing any agreement with the Company
which requires employees to join or maintain membership
in Local 4 as a condition of employment, unless the Union
is the representative of the employees as provided by Sec-
tion 9(a) of the National Labor Relations Act, and the
agreement in all other respects conforms to the require-
ments of Section 8(a)(3) of the Act.
(c) In any other manner restraining or coercing the
Company's employees in the exercise of their rights guar-
anteed by Section 7 of the Act.
2. Take the following affirmative action which, I find,
25 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board "
606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
will effectuate the policies of the Act:
(a) Jointly and severally with the Company reimburse
the Company's former and present employees for all dues
and other moneys illegally exacted from them by and on
behalf of Local 4, in the manner set forth in the section
herein entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
checkoff cards, dues payment records, and all other re-
cords necessary to analyze the amount of moneys due un-
der the terms of this recommended Order.
(c) Post at Local 4's business offices and meeting halls
copies of the attached notice marked "Appendix B." 26
Copies of said notice, on forms provided by the Regional
Director for Region 29, after being duly signed by an au-
thorized representative, shall be posted by Respondent
Union immediately upon receipt thereof, and be main-
tained by it for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to its mem-
bers are customarily posted. Reasonable steps shall be
taken by Local 4 to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Mail to the Regional Director for Region 29 signed
copies of said notice for posting by the Company at all
places where notices to its employees are customarily post-
ed. -
(e) Notify the Regional Director for Region 29, in writ-
mg, within 20 days from the date of this Order, what steps
Local 4 has taken to comply herewith.
IT Is FURTHER ORDERED that the allegations in the com-
plaint of violations of Section 8(a)(1) and 8(b)(1)(A) be
dismissed except insofar as specific findings of violations
of this section have been made above.
26 See fn. 25, supra
APPENDIX B
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT act as the exclusive bargaining repre-
sentative of any employees of Seaview Manor Home
for Adults, unless and until we are certified as such
representative by the National Labor Relations Board.
WE WILL NOT attempt to enforce or to apply to em-
ployees at Seaview Manor Home for Adults our con-
tract with said Company dated July 17, 1974.
WE WILL NOT attempt to cause Seaview Manor
Home for Adults to discharge or to refuse to employ
any employees because they are not members of our
Union or because they refuse to join, remain members
of, or assist our Union unless and until we are certified
as representative of such employees by the National
Labor Relations Board and have entered into an
agreement which in all respects conforms with the re-
quirements of the National Labor Relations Act.
WE WILL NOT in any other manner restrain or coerce
employees of Seaview Manor Home for Adults in the
exercise of their rights to self-organization, to bargain
collectively through representatives for the purpose of
collective bargaining or other mutual aid or protec-
tion, or to refrain from any or all such activities, ex-
cept to the extent that such rights may be affected by
an agreement requiring membership in a labor organi-
zation as a condition of employment as authorized in
Section 8(a)(3) of the National Labor Relations Act.
WE WILL jointly and severally with Seaview Manor
Home for Adults reimburse the Company's former
and present employees for all dues and other moneys
deducted from their wages and paid to Local 4, to-
gether with interest thereon at the rate of 6 percent per
annum.
MEDICAL AND HEALTH EMPLOYEES UNION LOCAL #
4, AFL-CIO