Shalom Nursing Home

National Labor Relations Board - Board Decisions

Sep 30, 1985

276 N.L.R.B. 1123 (N.L.R.B. 1985)

SHALOM NURSING HOME 1123
National Council Of Young Israel - d/b/a Shalom
Nursing Home and . Local 144, Hotel , Hospital,
Nursing Home and Allied Health " Services
-Union,' Service Employees International Union,
AFL-CIO. Cases 2-CA-17554 and 2-CA-
18096
30 September 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND JOHANSEN
-On " 27 May 1982 Administrative Law Judge
James F. Morton issued the attached decision. The
Respondent, the Charging Party, and the General
Counsel filed exceptions and supporting briefs.'
The National Labor Relations Board has delegat-
ed its authority in this' proceeding to a three--
member panel.
The Board has considered " the • decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,2 and
conclusions3 and to adopt the recommended Order
as modified. ' "
We agree-with the judge's findings and conclu-
sions except for his finding that the Respondent
violated Section " 8(a)(1) by impliedly promising
benefits to employees to induce them to vote
against the Union. The record shows that Adminis-
trator Wolf repeatedly told employees during a
series of preelection meetings that he could not and
would not make any promises about terms and con-
ditions of employment. -Wolf. told employees he
would be fair with them. At one meeting, in re-
sponse to questions from employees about wages
and benefits, Wolf briefly referred to wage in-
creases and bonuses received .by nonunion nurses as
an example of how he dealt with employees. The
employees asked Wolf if they would get increases
• "1 The Respondent and the Charging Party have requested oral argu-
ment The requests are denied as the record, exceptions, and briefs ade-
quately present the issues and the positions of the parties
2 The Respondent, the Charging Party, and the General Counsel have
excepted to some 'of the judge's credibility findings The Board 's estab-
lished policy" is not to overrule an administrative law judge 's credibility
resolutions unless the clear preponderance of all the relevant evidence
convinces us that they are incorrect Standard Dry Wall Products, 91
NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully
examined the record and find no basis for reversing the findings
2 The judge concluded that under Telautograph Corp., 199 NLRB 892
(1972), the Respondent did not violate Sec 8 (a)(5) by ceasing to bargain
with the Union following the filing of a decertification petition Telauto-
graph was overruled after the judge issued his decision . See Dresser In-
dustries, 264 NLRB 1088 ( 1982). In so doing, however, the Board re-
framed from giving its newly announced rule retroactive application
As the rule set forth in Telautograph applies in this case, we find it un-
necessary to pass on whether the rule announced in Dresser is the correct
statement of law.
Applying the test set forth in Clear Pine Mouldings, 268-NLRB 1044
`(1984), we agree with the judge that Queally and Love did not engage in
strike misconduct that warranted the Respondent's refusal to place their
names on the preferential hiring list
and bonuses. Wolf replied that-he-would not make
any promises other than to be fair.. In view of all
the circumstances, we find that Wolf's comments
did not constitute an implied promise of benefits.
Wolf made it clear throughout the- meetings with
employees that he could not make any promises.
Furthermore, on the one occasion that Wolf men-
tioned the nonunion nurses' wage increases and bo-
nuses, he reiterated that: he was not making any
promises. We, therefore, shall dismiss this allega-
tion. -
AMENDED CONCLUSIONS OF LAW
Delete- Conclusion of Law 3 and renumber the
subsequent paragraphs.
ORDER
- The National Labor.Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, National Council of Young Israel d/b/a
Shalom Nursing Home, Yonkers, New York, its of-
ficers, agents, successors, and assigns, shall take the
action set forth in the Order as modified.
1. Delete paragraph 1(a) and reletter the subse-
quent paragraphs. - -
2. -Substitute the attached notice for that of the
administrative-law judge. -
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE,
NATIONAL LABOR RELATIONS BOARD
.An Agency of the United States Government
The National Labor Relations Board has found
that we violated- the. National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT refuse to consider for reinstate-
ment to work any employee on strike who seeks to
return and who has -not engaged in serious miscon-
duct during the' strike. -
WE WILL • NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights. guaranteed you by Section 7 of
the Act. .
WE WILL offer Mary Queally and Lillie Love
their jobs back based on the preferential listing due
them as a result of their offers to return to work in
1981, and WE WILL make them whole for all back-
pay, with interest, they" lost because we had unlaw-
276 NLRB No. 118
1124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fully excluded their names from the preferential job
recall list. - -
NATIONAL, COUNCIL .OF YOUNG
'ISRAEL D/B/A SHALOM NURSING
HOME '
Stephen E. Appell, Esq., Michael J. DiMattia, Esq., and
Mary Ann Mills, Esq., for the General Counsel.
Peter A. Schneider, Esq., Roger P. Gilson, Esq., and Nicho-
las J. - Taldone, Esq. - (Jackson, Lewis, Schnitzler &
Krumpman), of New York, New York, for the Re-
spondent.
Paul A. Moore, Esq., of Poughkeepsie, New York, for the
Union.
- DECISION
STATEMENT OF THE CASE
JAMES F. MORTON, - Administrative Law Judge. On
September 24,'•1980; Local 144 Hotel, Hospital, Nursing
Home and Allied -Health .Services Union, Service Em-
ployees International Union, AFL-CIO (the_Union) filed
the unfair labor practice charge in Case 2-CA-17554
against National Council of Young Israel d/b/a Shalom
Nursing Home (Respondent). On October 20, 1980, the
Union filed an amended charge in that case. On Novem-
ber 6, 1980, a complaint issued in-that case alleging that
Respondent had violated Section 8(a)(1) of the National
Labor- Relations Act (the Act) by having threatened' and
otherwise coerced its employees respecting their support
for the Union during the course of conducting meetings
of Respondent's employees in September 1980 Respond-
ent filed an answer to that complaint which, inter alia,
denied those allegations. On June 10, 1981, an amended
complaint was. issued in . Case. 2-CA-17554 and it alleged
that, in addition to the coercive conduct described in the
initial complaint, Respondent had also violated Section
8(a)(5) of the Act by having' failed to bargain collectively
with the Union as specified in the amended complaint.
Respondent filed' an answer to the amended complaint
which placed in issue the alleged violations of Section
8(a)(1) and (5) of the Act,.
On May 28, 1981, the Union filed the unfair labor
`practice charge in Case 2-CA=18096 which alleged that
Respondent had unlawfully failed and refused to rein-
state to its employ various striking employees who alleg-
edly had unconditionally sought reinstatement.. On July
31, 1981, ,that case was consolidated with-Case 2-CA-
17554 and a consolidated complaint issued on that date.
The consolidated complaint alleged, inter alia, that Re-
spondent had violated Section 8(a)(1) and (3) of the Act
by having failed and refused to reinstate 21 employees
because they had engaged•in a strike and despite the fact
that they had sought- unconditionally to return to work.
The consolidated complaint further alleged that Re-
spondent had violated Section 8(a)(1) of the Act by-the
allegedly coercive conduct described in the amended
complaint that had issued in Case 2-CA-17554, also al-
leged as violative of Section 8(a)(5) of the Act. In addi-
tion, the consolidated complaint alleged that the strike in
which certain employees of Respondent had engaged
had been prolonged by the allegedly coercive unfair
labor practices described in the consolidated complaint
and that, as a consequence, the strike had been converted
to an unfair labor practice strike. On August 10, 1981,
Respondent filed its answer to the consolidated com-
plaint and placed the alleged unlawful conduct in issue,
along with the allegation that the' strike had been con-
verted to a unfair labor practice strike.
The hearing was held before me' on various days
during September and October 1981. During the course
of the hearing, the. General Counsel was permitted to
amend the consolidated complaint to add specific allega-
tions of unlawful conduct arising out of meetings con-
ducted by, Respondent with its employees in September
1980 and to add the names of additional striking employ-
ees who allegedly had been. denied reinstatement upon
unconditional application therefor.'.
On the entire record in these cases, 2 including my ob-
servation of the demeanor of the witnesses and after due
consideration of the briefs filed by the General Counsel,
by the Union, and by Respondent, I make the following
. FINDINGS OF FACT'
1. JURISDICTION AND THE UNION'S STATUS
Based on the pleadings and the stipulations received at
the hearing, I find that Respondent is an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act and that the Union is a labor orga-
nization as defined in Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. General Statement-of the Issues
There are three broad areas to be considered in this
case. - The first has to do with whether Respondent en-
gaged in good-faith bargaining with the Union in meet-
ings held in the summer of 1980 before a "blue ribbon"
mediation panel which was set up to help end a protract-
ed strike: The second area has to do with whether Re-
spondent -coerced its employees in the fall of 1980 when
its nursing home administrator held meetings with them
to persuade -,them to vote against the Union. The. third
area has, to -do with whether Respondent unlawfully
failed or refused to reinstate striking employees upon
their asserted unconditional application in 1981 for rein-
statement to their former positions. To put these matters
in context, some background material is now set out.
B. Background •
The National Council of Young Israel is the parent or-
ganization of over 160 synagogues throughout the
United States. It also operates two nursing homes. One
of those nursing homes is located in Yonkers, New York.
I The amendment also purports to correct the spelling of names and to
list dates more precisely Respondent amended its answer to place those
additional allegations in issue
2 Contemporaneously with the filing of its brief Respondent submitted
a motion to correct obvious errors in the transcript As the motion is un-
opposed and seeks no substantive changes, it is granted
SHALOM NURSING HOME
There, Respondent does business under the name,
Shalom Nursing Home. The day-to-day operations of
that nursing home are administered by Howard Wolf.
Shalom Nursing Home -has approximately 240 patients
and from 200 to 225 employees. -
On July 3, 1979, the Union was certified as the exclu-
sive bargaining representative of all full-time and regular
part-time service and maintenance employees, including
dietary employees, nurses aides, orderlies, maintenance
personnel, and activity aides employed by Respondent at
Shalom Nursing Home but excluding all registered
nurses, licensed practical nurses, office clerical employ-
ees, professional employees, guards and supervisors as
defined in the Act. Respondent and the Union began col-
lective-bargaining negotiations in September 1979. A
month later the Union called a strike in furtherance of its
bargaining goals. About 140 ,of 'the approximately 220
unit employees took part in that strike. Respondent
began hiring replacements for the striking employees. As
discussed in detail elsewhere in this decision, these re-
placements were hired on a permanent basis and Re-
spondent, on several occasions, expressed to them its
great sense of loyalty for having come in to take care of
patients during the strike and ' assured -them that they
would not be fired to make positions available for any of
the striking employees who desired to return. Mean-
while, contract negotiations continued. Agreement was
reached on some matters. By the spring of 1980, there
were still 11 contractual items - on which no agreement
was reached. In May 1980, the Union proposed that' the
striking employees be permitted to return to work by a
process described as "dovetailing." That offer was not
accepted. It appears that the Union then began to consid-
er and talk about demonstrating outside synagogues af-
filiated with the National Council of Young Israel. Louis
Levine, who had been commissioner of Labor for the
State - of New York, was on friendly terms with the
Union's president and also with Rabbi Ephraim Sturm,
one of Respondent's; officials. Levine was successful in
persuading them to agree to meet with a "blue ribbon"
mediation panel which would be set up for the purpose
of finding a mutually acceptable 'method to return the
striking employees to work while contract negotiations
continued. The mediation panel was then established; it
was comprised of Abraham Beame , former mayor of the
city of New York; Louis Lefkowitz, former attorney
general of the State of New York; Bayard Rustin , the na-
tionally known civil-rights figure; Morris Aarons, retired
judge of the Supreme Court of the State of New York;
and Eric J. Schmertz, a professor of law.
C. The Panel Meetings and Related Discussions
1. The respective contentions
The General Counsel and the Union contend that Re-
spondent engaged in bad-faith bargaining with respect to
the subject matter with which the panel was concerned.
Specifically, they contend that Respondent reneged on
an' agreement reached - before the mediation panel con-'
cerning the method to be followed in reinstating to work
the employees then on strike. They also contend that
there are alternate grounds , reach of which supports a
1125
finding that Respondent bargained in'bad faith with the
Union on the matter of reinstating the striking employees
to work.'Thus, they set forth the following three alterna
tives as separate bases for the-alleged violation: (a) that
Respondent entered into the discussions before the medi-
ation panel with a fixed intention not to-reach an agree-
ment, (b) that Respondent placed unlawful conditions on
the Union before it would entertain the recommendation
made by the -panel, and lastly (c) that Respondent, on
July 30, 1980, unlawfully withdrew recognition from the
Union as bargaining agent of the unit employees
Respondent contends it never reached agreement,-,ex-
press or implied, with the Union as to reinstating the
strikers. It denies that it entered into the panel-discussion
with a closed mind -or -that it placed any conditions on
the discussions then and it asserts that it was required by
law to withdraw recognition from the Union on July 30,
1980, as a valid decertification petition had just been
filed.
2. The panel meetings
The first panel meeting was held on June 26, 1980.
The.parties' witnesses are in essential agreement as to the
events at that- meeting.- After hearing presentations by
representatives for the respective sides, the panel's chair-
man proposed that the parties agree to consider recom-
mendations to be offered by the panel., The Union's -
president.Peter Ottley advised that the Union was will-
ing to accept any recommendations to be made by the
panel. Respondent's . executive vice president Rabbi
Sturm stated that he had not been given the authority by
the advisory board of the Shalom Nursing Home to re-
ceive recommendations. He advised that he would meet
with that body and then respond to the -panel's proposal
at the next session with the panel, which was set for July
17, 1980. -
The accounts" given by the witnesses called by the
General Counsel and Respondent respecting the develop-
ments at the July 17 panel meeting -are also essentially in
accord. At that meeting, after a brief discussion, Rabbi
Sturm and Peter Ottley were given copies of a document
which had been prepared by the panel. It was a five-
page typewritten statement captioned, "Recommendation
of Mediation Panel." The preamble of that document re-
cited the background and noted that- the panel had sug-
gested at the June 26 meeting that it be authorized to
make nonbinding recommendations "to resolve a dispute
between (the • parties) concerning the rights of the
Union's members to reinstatement after a prolonged
strike." The preamble further recited that the Union, on
June 26, had accepted that suggestion but that Respond-
ent had requested that its reply thereon be deferred to
July-17 in-order for it to be able to present the panel's
procedural suggestion to Respondent's advisory board.
The preamble concluded with -an observation that, on
July 17, Respondent had agreed to the foregoing proce-
dure whereby the panel would prepare and submit non-
binding recommendations to the parties. The document
then- set forth in a separate section the basis of the dis-
pute. It stated that the panel had been given to under-
stand that as of July 17 there were approximately 96 em-
1126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees on strike who had not returned to their jobs, that
Respondent had replaced all of those striking employees
with permanent replacements, and that it had, no job po-
sitions then vacant. Respondent had apparently advised
the panel that attrition would account for about only
three job vacancies per month in the collective-bargain-
ing unit. The recommendations by the panel were then
-set out in that document. Among its recommendations
were the following. Respondent would reinstate 25 strik-
ers within 2 weeks after they had submitted their re-
quests in writing to return- to work; the remainder of the
striking employees should be reinstated at 30-day inter-
vals in such a way that all striking employees who de-
sired reinstatement would be returned to employment no
later than 3 months and 2 weeks following the date of
the document,.i.e., July 17. The Union's president ad-
vised the panel that the Union accepted the recommen-
dation. Rabbi Sturm told the panel members that he
would first have to review the recommendations with his
advisory board. The meeting ended with an agreement
to reconvene on July 30.
A week prior to the scheduled date for the panel to
reconvene, a decertification petition was filed. In particu-
lar, a petition had been -filed on July 23, 1980, in Case 2-
RD-1015 whereby an election as sought to determine
whether or not the Union would continue to be the col-
lective-bargaining representative of Respondent's service
- and maintenance -employees at Shalom Nursing Home.
On July 24; Region 2 issued a notice of hearing in that
representation case.
The General Counsel called two witnesses who testi-
fied to the substance.of the panel meeting held 'on July
30, 1980. One of those witnesses was Irwin Bluestein, an
attorney. He testified that he and the Union's president
attended that meeting on behalf of the Union. According
to him, Rabbi Sturm and- an attorney, Bruno Gioffre, did
virtually all of the talking for Respondent. Bluestein tes-
tified that Rabbi Sturm and Gioffre had "indicated" to
the panel members that implementation of the panel's
recommendations and the reaching of a collective-bar-
gaining -agreement were conditioned upon indemnifica-
tion of Respondent by the Union for any damages suf-
fered by Respondent as result of any legal action taken
by any of the replacements against Respondent for dis-
placing them in order for it to reinstate striking employ-
ees. Bluestein testified that Rabbi Sturm and Gioffre also
proposed that one of the recommendations of the panel
should be modified. They sought to change the recom-
mendation that the reinstatement rights of strikers who
allegely engaged in picket line misconduct should be de-
cided by the National Labor Relations Board, and not
via arbitration. That modification was-accepted.
Bluestein . was asked by the General Counsel whether
it was Rabbi Sturm or Gioffre who made the statement
- that Respondent had accepted the panel's recommenda-
tions. Bluestein- responded that it was Rabbi Sturm who
had indicated to the panel Respondent's acceptance of its _
recommendations and that Gioffre spelled out that ac-
ceptance by discussing the other issues.
-Bluestein further testified that Rabbi Sturm, at some
point on July 30, engaged in some discussion about, a
senior care program that Respondent wanted to operate
and that Rabbi Sturm stated that' he believed that the
Union was using its political influence to prevent Re-
spondent from participating in that program . Bluestein
testified further that Rabbi Sturm and Gioffre then ad-
vised the panel that there was a third condition to be
placed on acceptance by Respondent of the panel's rec-
ommendations, i.e., that the Union and Respondent reach
agreement - on the 11 open contractual items . Thereupon,
according to -Bluestein, Gioffre stated that, Respondent
had reservations'as to whether it could continue-to deal
with the panel. In particular, Gioffre advised that he was
of the view that Respondent could not do so in view of
the pending decertification petition. Gioffre cited a
Board decision - in support of that assertion.3
The -Union's president Ottley testified as' follows re-
specting the -July 30 meeting. Ottley accepted the panel
recommendations on behalf of the Union. Rabbi Sturm
said that he would accept those recommendations also
but that there were three areas -which would have to be
cleared up. Rabbi Sturm identified those three areas as
(1) indemnification, (2)-the unwillingness of Respondent
to consider reinstating 13 striking employees whom it be-
lieved had engaged- in misconduct while on the picket
line, and (3) resolution 'of the I 1 items still blocking final
agreement on' the collective -bargaining agreement. Ac-
cording to -Ottley, he agreed to "the indemnification."
Ottley testified that he also agreed with Respondent that
.the 13 strikers who allegedly engaged in misconduct
would have their reinstatement rights determined not by
arbitration but by the National Labor Relations Board.
Respecting the 11 unresolved contractual issues, -Ottley
testified also that he stated to the panel and to Rabbi
Sturm that he had anticipated that there would be no
problem in resolving the 11 open contract items and that
he suggested that an early meeting be scheduled between
the representatives of the parties for that purpose. Ottley
further testified that Rabbi Sturm voiced annoyance with
what _ he - viewed as the Union's improper interference
with Respondent's attempt to obtain a grant of money
from the State of New York and that Rabbi Sturm ac-
cused the Union of having blocked that grant. Ottley tes-
tified that he told Rabbi Sturm that the Union was not
involved in that matter in any way.
Ottley also testified that he and Rabbi Sturm had a pri-
vate discussion on July 30 in which Rabbi Sturm also-ac-
cused the Union of being responsible for an investigation
by a state legislative body into alleged misuse by nursing
homes, and especially the Shalom Nursing Home, of
state funds in paying attorneys' fees to defeat union orga-
nizing campaigns. Ottley testified 'he told Rabbi Sturm
that the Union had nothing to do with that matter either.
Lastly, Ottley testified that Rabbi Sturm also accused the
Union of attempting to harm his own son's legal career.
Rabbi Sturm's son is associated with a law, firm that rep-
resents a sister local of.the Union. Ottley denied that the
Union was involved in any such attempt.
Respondent called Rabbi Sturm. and Gioffre to re-
spond to the foregoing testimony as to the events of July
30. -
Telautograph Corp, 199 NLRB 892 (1977)
SHALOM NURSING HOME
- Rabbi Sturm testified that he told the panel then that
his advisory board instructed him that it wanted a com-
plete package to consider for approval and that, as the
panel's recommendation went only to the matter of rec-
ommending a format for strikers to be reinstated, Re-
spondent could not respond. Rabbi Sturm testified that
he, said his advisory board was not interested in a "Camp
David agreement-with loose ends hanging around." The
loose ends. Rabbi Sturm apparently referred to were the
fact that there were 11 contractual items still open and a
reluctance by Respondent to accept the panel's recom-
mendation that cases involving 13 unnamed strikers who
allegedly engaged in picket line misconduct should be
heard by an arbitrator and not the National Labor Rela-
tions Board. The panel then modified its recommenda-
tion as to those 13. Rabbi Sturm testified that, at that
point, Gioffre stated on behalf of Respondent that it was
not permitted to negotiate at all "because of the decertifi-
cation idea." Rabbi Sturm also testified that at one point
Gioffre insisted that the Union would have to indemnify
Respondent against any loss Respondent may suffer by
reason of claims advanced by permanent replacements
who may be displaced to make room for returning strik-
ers., Rabbi Sturm testified that the panel meeting then
"sort of. disintegrated" and that there was no formal
ending to that meeting.
Bruno Gioffre testified on behalf of Respondent re-
specting the July 30'panel meeting as follows. He attend-
ed that meeting as counsel for Respondent and as a
member of the advisory board to Shalom Nursing Home.
The advisory board is a body separate and apart from
the board of directors of the National Council of Young
Israel which sets'policy for-the parent body. The-adviso-
ry board to Shalom Nursing Home oversees policy at
that home. A^separate' advisory board sets policy for Re-
spondent's other nursing home which is located in .Port-
chester, New York. On July 30, the chairman of the
panel, Schmertz, opened the meeting and recited the case
history to bring everyone up to date. Schmertz then
asked for Rabbi Sturm's report respecting whether or
not Respondent was interested in receiving the panel's
recommendations. Thereupon, Rabbi Sturm advised that
Respondent desired to give serious consideration to the
panel's recommendations and that there was not any in-
tention on the part of Respondent to fragmentize the rec-
ommendations. Rabbi Sturm advised that Respondent
had a very serious problem with respect to the question
of strike misconduct and as to whether certain of those
whom Respondent felt were involved in that misconduct
should be reinstated. Gioffre further testified that Re-
spondent advised the, panel that overriding all of those
considerations was the fact that a decertification petition
had just' been filed, a reference to Case 2-RD-1015.
Gioffre also recalled that Rabbi Sturm had made a pass-
ing reference to a requirement that Respondent would
have to be given some sort of indemnification because of
the possibility that some of the employees who had been
given positions of permanent employment during the
strike might possibly be able to pursue backpay claims
against Respondent. Gioffre identified himself as being
the individual who spoke respecting the decertification
matter and the other legal issues and he testified that that
1127
discussion was had between himself-and Irwin Bluestein
for the Union. Gioffre made, as he put it, primary refer-
ence to the Telautograph case, supra, and stated that it
was his understanding that that case prohibited Respond-
ent from going further in the discussions. He stated that,
when Bluestein indicated that he had a different interpre-
tation of that case, Gioffre told him that he would obtain
a second opinion. Gioffre's testimony also was to the
effect that Rabbi Sturm had stated that Respondent was
not interested in a piecemeal resolution of the issues but
that Respondent wanted a complete package. Gioffre
further testified that at lunch and apparently in separate,
private conversations, Rabbi Sturm and the Union's
president Peter Ottley exchanged heated words about the
legislative investigation, about an apparent attempt by
the Union to interfere with the legal career of Rabbi
Sturm's son, and about the failure of Respondent to be
awarded a state grant to finance a senior citizens' pro-
gram.
3. The telephone conversation between Frank
Russo and Rabbi Sturm
The General Counsel called the Union's vice president
Frank Russo to testify respecting a conversation he had
with Rabbi Sturm concerning agreements allegedly
reached during the panel meetings. -Russo testifed that
sometime in July 1980 he and the Union's attorney Irwin
Bluestein were negotiating a contract with a group of
employers not involved in this case and, at some point
during the course of those negotiations, Bluestein told
him that Rabbi Sturm had accepted the panel's recom-
- mendations. Russo testified that Bluestein also told him
that there may be some complications. Russo testified
that he then called a close personal friend and that that
friend prevailed upon Russo to call Rabbi Sturm direct-
ly. Russo testified as follows respecting the substance of
the conversation he had with Rabbi Sturm He told
, - Rabbi Sturm that-he understood that Rabbi Sturm had
accepted the recommendations of the panel and he
quoted Rabbi Sturm as saying that he had accepted those
recommendations. Russo testified that he then asked
Rabbi Sturm what the problem was and was told that
Respondent's attorney had advised that the matter of in-
demnification was a complication. Russo testified that he
stated that'he did not understand what that matter was
all about. Russo told Rabbi Sturm that Russo had talked
previously about demonstrating against the National'-
Council of Young Israel but had opted instead to use the
services of the Jewish Labor Committee which led to
the formation of the panel to resolve the reinstatement
rights of the strikers. Russo testified that, in response to
his comment, Rabbi Sturm went into a tirade and stated
that the Union's president had blocked Rabbi Sturm's ef-
forts to obtain funds for a program to aid elderly people
to obtain employment. Russo testified that he attempted
to calm Rabbi Sturm down but that Sturm instead ac-
cused Russo and the Union's president of having instigat-
ed an investigation by a state legislative committee
headed by Assemblyman Barbaro which-was set up to
investigate the alleged misuse of taxpapers' money as it
related to financing protracted labor disputes. Russo
1128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stated that Rabbi Sturm also accused the Union's presi-
dent of trying to•interfere with his son's right to practice
as an attorney. Russo said that he had attempted to calm
Rabbi Sturm down and told him he would talk to the
Union's president to find out whether any of Rabbi
Sturm's statements were true.
In the course of the testimony submitted on behalf of
the General Counsel by Irwin Bluestein , the Union's at-
torney, Bluestein -did not refer to any such discussion
with Russo. It is noted that Russo, in his testimony,
stated that Bluestein was standing immediately alongside
of him when he telephoned Rabbi Sturm. -
Rabbi Sturm testified as follows respecting the discus-
sion-he had on the telephone with Russo.- He received
that call about a week after the July 30 meeting. Russo
told him that the parties were very close to ending the
strike and that Rabbi Sturm should go back and push for
Respondent to accept the "terms, apparently a reference
to the panel's recommendations. Rabbi Sturm advised
Russo that he was forgetting that there were still 11
open contractual items and that his advisory board was
not interested in considering anything except-"the whole
package." He stated that Russo talked as if the 11 open
terms were a minor matter and that Russo attempted a
"sort of a little bit strong armed" approach by saying
that he believed that Rabbi Sturm could, if he wanted to,
twist arms. At that point, according to Rabbi Sturm, he
told Russo that he was the best friend the Union had but
that the Union had destroyed him as a friend. He stated
that he then discussed with Russo "those three items"-
an apparent reference to the Barbaro investigating com-
mittee, the senior citizens' program, and the alleged in-
terference by the. Union with the legal career of Rabbi -
Sturm's son.
Rabbi Sturm testified that Russo continued to press
him to make' an effort to persuade his advisory board to
accept the panel's recommendations but that the discus-
sion ended' when Rabbi Sturm advised Russo that there
was nothing further to discuss.
4. The 'August 11 and September 15 meetings
The testimony- is clear that a" meeting was held on
August 11, 1980, at the Union's office so that the parties
could take up the matter of the 11 "open" contractual
items. -
Respondent's administrator Howard. Wolf and one of
its attorneys Peter Schneider were present as were the
Union's president Ottley, its vice president Russo, and its
attorney Irwin Bluestein. The Union's vice president
Russo testified that he recalled being in the office then
but did not recall' any of the details"of that- meeting and
did not recall if the Union's attorney Bluestein was
present then. The Union's president Ottley testified that
the meeting was scheduled to discuss solely the 11 unre-
solved contractual- issues and that Respondent's attorney
quickly brought that matter to a head by advising that
Respondent could not discuss those.matters because of
the then pending decertification petition. The Union's at-
torney Irwin Bluestein testified as to that meeting and in
'general his testimony . thereon corroborates that of
Ottley. .
. The decertification petition referred to in the preced-
ing paragraph was the one that had been filed in Case 2-
RD-1015 on July 23, 1980 A notice of hearing had
issued in that case on July 24 , 1980 The hearing was
held in that case on August 18; the Decision and Direc-
tion of Election issued on August 18, 1980.
While that decertification petition was being proc-
essed , the panel 's chairman Schmertz notified the parties
that the panel had scheduled another meeting to be held
on September 15, 1980 . Respondent , on September 13,
sent a mailgram in response which stated that Respond-
ent would not attend the September 15 meeting because
of the pending decertification case.
The election -in Case 2-RD-1015 was held on October
2, 1980 . The ballots were impounded by reason of the
Union 's having filed the charge on September 24, 1980,
in Case 2-CA-17554, as noted earlier.
5. Analysis,
As observed earlier, the General Counsel contends
that Respondent had reached an agreement with the
Union as -a result of the discussions had concerning the
recommendations of the mediation panel and that Re-
spondent later unlawfully refused to honor that agree-
ment. Alternatively the General Counsel has argued that,
even if no agreement is found, the evidence shows that
Respondent engaged in unlawful surface bargaining as to
the effort by the Union to reach accord on a procedure
to reinstate the striking employees where they had been
permanently replaced. The General Counsel propounded
other theories, discussed below.
Obviously, the first issue is whether the parties
reached agreement. In that regard, the General Counsel
offered two bases for finding that an agreement was
reached. First, the General Counsel asserted that the evi-
dence establishes that there was an express agreement.
Alternatively, the General Counsel contended that an
agreement to reinstate the striking - employees must be
implied from the overall conduct of, the parties as Re-
spondent never objected to the panel's final recommen-
dations but instead sought concessions from the Union
which were. not within the scope of the collective-bar-
gaining process.
The evidence that the parties reached an express-
agreement has to be premised on certain testimony given
by the Union's attorney Irwin Bluestein and by its vice
president Frank Russo. Bluestein testified that, -at the
July 30 meeting, Rabbi Sturm had accepted the panel's
revised recommendation and that Gioffre then spelled
out that acceptance. Bluestein also related that Rabbi
Sturm, and Gioffre had both "indicated" , then that the
recommendations of the panel were accepted. The spe-
cific testimony given as to the discussions that took place
on July 30 does not lend probative weight to those broad
assertions Rather, the preponderance of the detailed tes-
timony demonstrates that Respondent did not expressly
agree to accept the panel 's recommendations. Gioffre's
account sets out in detail the discussions on July 30. It is
.patently clear from his testimony that no express agree-
ment had been reached between the Respondent and the
;Union on that day as to how and when the striking em-
SHALOM NURSING HOME - 1129
ployees were to be reinstated. I do not see any specific
factual conflict in the accounts of Ottley, Bluestein,
Gioffre, and Rabbi Sturm as to the events of-July' 30. I
do not accept the factual inferences drawn by Bluestein,
and Ottley as set out in their respective accounts.- If it
were necessary to make a specific credibility resolution, I
would credit Gioffre's account as it is factually- very de-
tailed. •
The other ground that the General Counsel has to
offer in support of a finding of an express contract is laid
out in Russo's testimony. However, I credit Sturm's ac-
count which discloses that ratification by the advisory
board of Shalom Nursing Home was a requirement
before the panel's recommendations were to become op-
erative and that such ratification had not been obtained. I
thus find that the preponderance of the evidence does
not support the General Counsel's contention that an ex-
press agreement had been reached.
The General Counsel separately urges that Respondent
reneged on an implied agreement that had been reached
or, alternatively, that Respondent engaged in bad-faith
bargaining by entering into negotiations with a fixed
intent not to reach agreement. Although those conten-
tions are diametrically opposed to each other, the evi-
dence relating to both is essentially identical . It will be
helpful in evaluating those contentions to consider the
framework under which the discussions took place.
By June 1980 the Union's strike had been going on for
about 8 months and there were still 11 contract items un-
resolved. All the striking employees had, by then, been
permanently replaced by employees to whom Respond-
ent felt a deep sense of loyalty and whom it assured -
would not be fired to make room for any returning strik-
ers. Rabbi Sturm , Respondent 's executive vice president,
was upset over what he perceived to be the Union's,ef-
forts (a) to undermine his son's legal career, (b) to block
a grant of money from the State of New York to fund a
senior citizens , program he was interested in, and (c) to
encourage a state assemblyman to conduct an official in-
quiry into the way Respondent funds its labor relations
policies. By June 1980 also, the Union had indicated that
it might extend its picketing to the synagogues affiliated
with Respondent.
Against this background which shows that (a) the
Union's strike was not effective in disrupting the oper-
ations of Shalom Nursing Home;, (b) Respondent would
resist vigorously any effort to have it oust the permanent
replacements ; and (c) Respondent 's vice president was
angry with the Union's efforts, as he saw it, to put im-
proper pressure on Respondent, it does not seem likely
to me that Respondent would have deferred readily on
July 30 to the panel's recommendations. It is more likely
that Respondent would have resisted the summary pro-
posal made-that Respondent effect a major turnover in
its service and maintenance unit in a 3 -month period to
accommodate the Union. I credit the accounts of Rabbi
Sturm and Bruno Gioffre that at all times Respondent
made it clear that Respondent viewed the panel 's recom-
mendations as nonbinding and that Respondent declined
to consider them further on the filing of the decertifica-
tion petition. On that premise, I find that the evidence is
insufficient to establish that Respondent and the Union
had entered into an implied agreement to. adopt the
panel 's recommendation.
I 'turn now to the General Counsel's contention that
the evidence, in any event, discloses that Respondent had
engaged in "surface bargaining" respecting the proposals
to end the strike. The same considerations which -were
relevant in determining whether Respondent had reached
an implied agreement with the Union also are relevant to
the General Counsel's alternative contention. It seems to
be fair to infer from those, same- considerations, (a)
through (c) above, that Respondent would not be readily
disposed- to make any concession to accommodate the
striking employees which would require it to terminate
the permanent replacements. At first glance, Respond-
ent's designation of Rabbi Sturm as its representative
before the panel appears to make its motives suspect in-
asmuch as Rabbi Sturm by then had good reason to be
angry with the Union in 'view of his perception then of
the Union's tactics on collateral matters, i.e., the Barbaro
investigation, the asserted effort to harm his son's legal
career, and the blocking of the grant for a senior citizens'
proposal made by Rabbi Sturm.
There are other considerations which may cast suspi-
cions on Respondent 's motives in participating in the
panel meetings . Thus, it would - seem that , when Re-
spondent agreed to the ad hoc use of a panel of distin-
guished citizens, it should also-have expected that the
panel would seek out and present a method of ending the
strike which would become operative quickly and which
would have the effect of displacing at least a significant
number of the permanent replacements. In that context,
Rabbi Sturm's refusal at the June 26 meeting even to
agree-to accept the panel's request that it be authorized
to'make nonbinding recommendations indicates that Re-
spondent was less than ready to accommodate the
panel 's- purpose. Respondent 's acts which resulted in a
more-than 2-week delay before it even could receive the
nonbinding proposals suggest that Respondent was in no
hurry to entertain them favorably. The' comments by
Rabbi Sturm, too, at the July 30 panel meeting were
hardly disposed to enhance the prospects for agreement.
The fact too that Respondent insisted then on agreement
on 11 contractual items still ' unresolved after months of
bargaining before it could consider the merits of the
panel 's recommendations reveals that Respondent was in
no hurry to return the strikers to work. -
Weighing against a finding that Respondent engaged
in surface bargaining are the following factors. The stat-
ute does not obligate Respondent to make concessions.
Secondly, there is no contention that Respondent failed
to meet union representatives other than with respect to
the scheduled September 15 meeting which is discussed
separately below. It did review and discuss the proposals
made . Further and specifically with respect to Respond-
ent's designation of Rabbi Sturm as its spokesman at the
panel meetings, the simple-fact is that his presence had
been sought out initially by a neutral individual, Louis
Levine. Finally, it may not have been unreasonable for
Respondent to have ' hoped - at the time it agreed to
appear before the panel, that the panel would offer the
1130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union a face-saving proposal-one that was tied closely
to attrition among the replacements.
The totality of the evidence fails to persuade me that
Respondent was guilty-of bad-faith surface bargaining.
At best, its conduct may be suspect and it is well settled
that suspicions are no substitute for proof.4
As noted above, the General Counsel has propounded
another theory in furtherance of the contention that Re-,
spondent failed to bargain collectively with the Union.
Thus, it is urged that Respondent unlawfully conditioned
the acceptance of the panel's recommendations upon the
Union's first (a) using its influence toward having a state
assemblyman terminate a legislative investigation, (b)
ceasing to interfere with the career of Rabbi Sturm' s son,.
and (c) .obtaining a grant of money from the State ' of
New York so that Respondent could establish a certain
program for senior citizens.
While Rabbi Sturm complained of the Barbaro investi-
gation, of attempts to harm his son's career, and of the
sudden failure to'receive a grant for a senior citizens'
program, the totality of the evidence fails to establish
that Respondent presented demands thereon as precondi-
tions for bargaining as to the strikers' reinstatement
rights.
There remains for= consideration- the General Counsel's
contention, joined in by the' Union, that Respondent un-
lawfully withdrew recognition from the Union on July
30. On that day, as noted above, Respondent through its
representative Bruno Gioffre expressed doubt that it
could bargain as to reinstating the strikers and on the 11
open contract items in view- of 'the pending decertifica-
tion petition. On August '11, the Respondent made . it
clear -to the Union that it could not continue to meet
with the Union to discuss, contract proposals because of
the petition then being processed in Case 2-RD-1015. As
noted above, the hearing in that case was held on August
12 and an election was directed in the decision therein
which issued on August 20. In September the panel's
chairman scheduled another panel meeting but Respond-
ent, on September 13, notified him that it declined to
participate on the ground that negotiations "are improper
during pendency of decertification proceeding."
The Board has held that an employer may. not ,bargain
collectively with an incumbent or any other, union,
where a decertification-petition with an adequate show-
ing of interest has been filed, until the real question con-
cerning representatioi 'raised by that petition has been re-
solved in that union's favor.5 On that premise, it is clear
that Respondent lawfully declined to discuss those mat-
ters with the Union. The General Counsel separately
argues that Respondent was still obligated 'to discuss
with it the striker reinstatement matter as that discussion
was' not aimed at a term or condition of employment to
be incorporated into a - collective-bargaining agreement
but was akin to agrievance ansing out of an existing
contract. The rationale for that view is based on the duty
4 Murray Ohio Mfg Co, 207 NLRB 481 (1973)
° Telautograph Corp, 199 NLRB 892 (1972) The General Counsel's
and the Union's reliance on the Board 's holdings in Lammert Industries,
229 NLRB 895 (1977), in Autoprod, Inc, 223 NLRB 723 (1976), and in
similar cases is misplaced as, in those cases, recognition was withdrawn in
the context of unfair labor practices , not found in the instant case
of parties to process grievances under 'an existing con-
tract' although barred from negotiating a renewal con-
-tract because a real question concerning representation
has 'been raised. The difficulty with the General Coun-
sel's view is that there is no agreed-upon contract, no es-
tablished procedure for reinstating the strikers or other
clause on which a grievance may find support, no griev-
ance procedure, and no grievance. In any event, a dis-
cussion respecting the reinstatement rights of stnkers is
one that may properly be the subject of collective bar-
gaining6 and thus it is more than an item analogous to a
grievance. The discussion pertaining to the return of the
strikers to work was aimed at an ageement determining
the seniority rights to be given the strikers vis-a-vis the
employees who had been hired to replace them. As there
is no evidence that the parties had entered into an agree-
ment thereon, Respondent was compelled under the Tel-
autograph principle to cease discussing that matter with
the Union when the petition in Case 2-RD-1015 had
been filed.
D. Alleged Coercive Conduct by Respondent's
Administrator Prior to Election
The General Counsel and the Union contend that Re-
spondent's administrator Howard Wolf in speeches made
to unit employees shortly before the election was to be
held in Case 2-RD-1015 made statements which violated
Section 8(a)(1) of the Act. Respondent has denied those
allegations in their entirety.
The General Counsel called for witnesses in support of
'the alleged violations.
The first, Lorna Wilson, testified that she has been em-
ployed by Respondent' as a nurses aide since 1976-and
that in August and September 1980 she attended meet-
ings ' held by Respondent's administrator Howard Wolf.
She testified that at one meeting there were about 20 to
25 unit employees present. She further testified that she
attended approximately four meetings, and could not
recall what was said at any particular meeting, but could
relate "overall" what she remembered. Her testimony
was that Wolf told the employees that there was to be an
election, that he wanted them to give him a chance, and
that he urged them to vote against the Union. According
to Wilson, Wolf stated that, if the''employees were not
satisfied with what he did thereafter, they could vote for
any other union. He asked for a chance "to prove hini-
self." When asked whether Wolf had suggested what
might happen if the employees voted for the Union, she
responded that he told them that "nobody can let him do
what he don't want to do." She further related that Wolf
had 'stated that, if the Union won the election, "dues
would have to be taken out of the employees' pay if
that's what they wanted and there is nothing he could do
about it." Her testimony also appears to allude to state-
ments made by Wolf that the Union was promising a
substantial wage increase and that Wolf stated that he
could not offer them any raise as it would look as if he
.6 In Coca-Cola Bottling Co of Louisville, 166 NLRB 134 (1967), the
Board held that an employer was not compelled to discuss the rehiring of
permanently replaced strikers
SHALOM -NURSING HOME
were bribing them. She also quoted Wolf as having said
that "if the Union lost-the election , the employees could
come directly to him but if the Union won,' he did. not
have , to speak to the employees directly ." When asked
whether Wolf had said anything with respect to what he
might have to do with the -replacements who had been
hired for striking employees , she responded - that he said
he -would have to get rid of them and take back the strik-
ing-employees and that what the Union wanted was to
have Respondent fire- the' replacements and take back the
strikers but that he would not do it because the replace-
ments had stood by him.
The second witness . called by the General Counsel-re-
specting remarks by Wolf was Hazel France . She testi-
fied as follows . She had been employed as a nurses aid
by-Respondent when she attended three meetings con-
ducted by Wolf in September 1980. There were about 40
employees at each of .those meetings . In each , Wolf said
that if the Union won the election , the Union would
want him to fire the workers inside so that he could take
back the strikers outside . Wolf said that the nurses got a
Christmas bonus and "we could do the same"; the nurses
are not represented by a union . Wolf said his door was
always open, that the employees could always come and
talk to him and that, if they could not get any satisfac-
tion with him, the employees asked him for a raise and
he responded that his hands - were tied . Wolf said that if
the Union won a lot of money would be taken out of the
employees ' wages for union dues. Wolf also had said that
the Union wanted him to fire "the people inside so that
he could take back the strikers and ,that if the Union
won "he -would have to fire [the replacements]. -
The General Counsel 's third witness in this case was
Emmy Ivery . ' She. testified as follows . She had - been em-
ployed ,as a nurses aid by Respondent when Wolf con-
ducted a series of meetings ' of employees in September
1980. At each of the meetings she attended then, there
were approximately ' 15 employees : Wolf told them to
vote "No" and that if they did not vote "No" they
would ` be out of a job because - the striking employees
would have to come back to work. According ' to her,
Wolf told the employees to give him a chance because
his hands were tied ..Wolf said that the nurses were get-
ting raises but that he could give - the nurses 'aides none
because his hands were tied.
The last witness called by' the General Counsel re-
specting - this allegation was 'Patricia Jean Brooks. She
testified as follows: She had been a nurses aide employed
by Respondent and- attended about four preelection meet-
ings in September 1980 which were conducted by Wolf.
Most of - the nurses aides on her shift were present at
those meetings . At the first meeting which was held in
mid-September, Wolf informed the aides "of what was
happening . with the strike , what's going on, (and said)
that he was unable to tell (them) much about it because
his hands, was tied , -it was confidential ." Wolf also told
the aides that Respondent was "still discussing the strik-
ers and . . . still having meetings (with) the Union." At
the second meeting - held approximately a week later
Wolf stated that there would be an election and that the
employees will vote on whether they would have a
union or not and "for the strikers to come back or not."
1131
Wolf stated that , if the Union won, about 70 or 80-per-
cent of the replacements would have to leave. At the
third meeting held a week after the second , Wolf told
the aides that if the Union won- all the replacements .
would have to go . Wolf at that meeting also - shows the
aides, by a diagram , how the - ballots should be marked.
Wolf also stated that the nurses employed by Respondent
do not have a union and that they get Christmas bonuses
and raises all year around . When asked why the aides
could not be' given increases , Wolf said ' he could not do
this - because his hands were tied and he could not do
anything until the strike was settled . Some of the aides
asked if they could bring in another union or form their
own. He said that they could come to'him with a list of
their demands and discuss them with him and " he would
see what he could or could not do with them . The aides
asked Wolf what raises they could expect and ' he said
that if would be around $4.50 or $4.75 that he would be
able to give them as a raise. At that time , Brooks was
making $4" an hour.
Respondent called Howard Wolf as its witness respect-
ing the meetings he held with the unit employees in Sep-
tember 1980 ." His testimony thereon was .as follows. His
basic purpose in having these meetings :was to make him-
self visible and he -followed no prearranged script of
schedule . In September he met with separate groups of
employees to tell them that -, a, date had been set for the
election and that it would take place on October 2, 1980.
He told them that it was important for every employee
to vote in the election and that the vote would be essen-
tially a Yes or No vote as to , whether the Union would
continue to represent them .. He also told the employees
that they would be - hearing things from the Union and
also from him, that what they would .be hearing from the
Union would be promises , and that -what they would be
hearing from him would be facts . Employees then sub-
mitted questions to Wolf. Basically the questions were
what benefits they would receive after the election. Wolf
told -them that, according to the National Labor Rela-
tions Board law , it, was • illegal for him to make any,
promises to them and that- he, would, not and could not
discuss any of those items . He assured, them that he
would be fair with them . In the second week of.Septem-
ber, he held meetings again with groups of employees.
At that second set of meetings , Wolf told the employees
that he had heard a rumor that he was antiunion because
there was no contract at. Shalom Nursing Home. Wolf
told the employees that that rumor - was not true as, in
the negotiations with the Union , Respondent had agreed
to a union-security clause. Wolf explained to the employ-
ees the significance of that clause . Wolf stated that' he
was asking the employees to provide him with a vote of
confidence, to vote No at the election . He told them
that , if they determine-later that he was not dealing fairly
with them, they were free to go back and ask the Union
or any other labor organization in New York to repre-
sent them. He also discussed with them • a second rumor
that had come to his,attention . The second rumor was
that he would fire the replacements : `On that point, Wolf
told the employees that when the Union called the strike
240 patients .were left without anyone to care for them,
1132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that he had to go out and secure replacements for the
strikers, and that the patients at Respondent owed.the re-
placements a tremendous indebtedness and a sense of
loyalty.; He told the -employees that it was his. position
that none of the permanent replacements would be fired.
Wolf stated that it was the Union's position, that the per-
manent replacements-should be let go and that the strik-
ers should be returned to work. One of the employees
stated that the employees had heard that the Union had
received an hourly wage rate of $6.50. To that Wolf re-
plied that they were mistaken. Wolf was then asked what
he had discussed with the Union. He responded that it
had been his position not to discuss the negotiations and
that the Labor Board did not'allow an employer to make
promises as they would be miscontrued as a bribe.
Wolfs testimony as ,to the third set of meetings_ with
the employees is- as follows. He held them in the third
week of September. He again advised the employees that
the election was corning up and that it was important for
them to vote. The employees asked Wolf a number of
questions as to what benefits they might expect to re-
ceive after the election and he again advised them that
he could not make any promises. Wolf then used the
professional staff of the Nursing Home as an example as
to how -he had dealt - fairly with employees and he as-
sured the employees that he' would deal fairly with them.
Respecting the nurses; he told the employees that over
the course of years the professional staff in the Nursing
Home had received wage increases amounting to ap-
proximately $50 and they had also received bonuses- at
Christmastime. The employees then asked if they would '
get increases and bonuses- and he responded again that he
would not make promises but only could say that he
would be fair with them.--
• 'The fourth and last set of meetings Wolf testified to
was held in the last week in October. His testimony
thereon follows. At that set of meetings, he showed the
employees that they were to make an X in either the
"Yes" or "No" boxes and told them that any extraneous
remarks or comments on the ballot would cause the
ballot to be disqualified. Wolf stressed the importance of
everyone voting and explained to them that there would
be two separate voting times so that all shifts would be
able to vote. He indicated to them that he wanted a vote
of confidence from them to show that he could be fair
- with them. He made reference to unfair labor practice
charges that had been filed in the preceding week and
stated that they were totally false insofar as Respondent
was accused of having threatened employees with the
loss of jobs. He told them that it was the position of Re-
spondent that no permanent replacement would be let go
from employment. He stated that it had been the consist-
ent position of the Union that the strikers should be re-
turned to work and that their replacements would have
to be let go. Wolf told the employees that it,was impossi-
ble for Respondent to maintain a double payroll and that
if the strikers were returned someone would have to be
let go.
,In their -respective briefs,- the General Counsel and the
counsel for the Union argue that . the -four witnesses
called by the General Counsel should be credited, inter
alia, on the grounds that Respondent failed to call as a
witness any of the supervisors present 'during Wolf's
talks (and that therefore an inference .adverse to Re-
spondent must be drawn) and also on the ground that
one of those four witnesses is still in Respondent's
employ, (and thus' not inclined on that basis to fabricate
an account adverse to Respondent ). Respondent argues
in its brief that the accounts of these witnesses are unreli-
able because they are vague , inconsistent , - and confused;
it contends Wolfs testimony should be credited as it is
clear , direct, and-unequivocal.
There are several factors - to be taken into consider-
ation - when evaluating credibility in addition to those
mentioned by the parties . It appears undisputed that
Wolf conducted four sets of meetings with the employ-
ees, 'each set being a week apart from -the next . This pat-
tern suggests to me that those meetings were carefully
planned by Respondent, and this would seem to certainly
be so. Wolfs' testimony suggests that he, met with the
employees' during the preelection weeks to keep himself
visible to them. If that testimony was offered, as seems
the case , to suggest that the meetings - he held were un-
planned and, were conducted spontaneously , I • must
reject that suggestion . More likely, Respondent wanted
the permanent replacements to know that the Union
wanted the striking employees to return with the re-
placements being let go as necessary . I reject the sugges-
tion by the General Counsel and the Union that the
Union did not seek that goal.
It is likely too in my' view that Wolf sought to get
across at each set of meetings a particular point . Such an.
approach . ensures consistency and avoids confusion-
basic points to be aimed at in a preelection campaign.
A separate , significant consideration to my mind is that
Respondent could likely count - on the replacements to
vote - against representation by- the Union and thus Re-
spondent would have little reason to resort to extreme
measures , such as patent unfair labor ,practices , to coerce
them to reject the Union.
Weighing all these factors, .I find that the General
Counsel and the Union have not persuaded me that the
accounts of Wilson, France, Ivery, and Brooks should be
credited.over the, account of Wolf as to the statements
made at the preelection meetings . Iii making that finding,
I should also make clear that I am not finding that those
four witnesses fabricated their accounts . Rather, their re-
spective accounts reflect their own impressions - as - to
what occurred at the meetings. In its brief the Union sep-
arately has urged that at the very least Wolfs comments
were .so phrased as to cause confusion . In that regard the
Union urges that I apply the principle enunciated below
in evaluating the impact _ of Wolfs remarks. The Union
notes that the Board has held:'
-'Communications which hover on the edge of the
permissible and the impermissible are objectionable
as it is only simple :justice that a person who seeks
advantage from his elected use of the murky waters
of entendre should be held accountable therefor- at
the level of his audience rather than at that of so-
Turner Shoe Co, 249 NLRB 144, 146 (1980)
SHALOM NURSING HOME
phisticated tribunals, law professors, scholars of the
niceties of labor law or grammarians:
I find merit in the Union's= contention. The Board has
held that-an employer violates Section 8(a)(1) of the Act
when it conveys to employees "an implied promise-of
benefit-i.e., that the employees would receive improved
wages or benefits if the employees gave (the employer) a
"chance" (by rejecting the Union at the polls) . .. even
though: the nature of the benefits was not spelled out."
Wolf's account establishes that he asked the employees
to'give him a chance to be fair with them and that he
said further that he was "fair" to the nonunion nurses in
that they received substantial raises. I find that his, re-
marks' constituted an implied promise of benefit condi-
tioned upon the employees' rejection of the Union at the
election. The fact that Wolf also told the employees he
was not-permitted by law to promise them anything does
not neutralize that promise as it is' well settled that such
disclaimers carry no effective weight.9
The credited evidence fails to support the other al-
leged violations of Section 8(a)(1) arising from Wolf's
preelection talks.
E: The Alleged Unfair Labor Practice Strike
The General Counsel contends that the Union's eco-
nomic strike against Respondent was converted' to an
unfair labor practice - strike in the fall of 1980 by reason
of Respondent 's having failed to bargain collectively vis-
a-vis the mediation panel . meetings , discussed above, and
by reason of Wolf's allegedly unlawful preelection re-
marks , also discussed above . The only evidence offered
to support that asserted conversion was the testimony of
a union organizer that she' observed that the picket signs
were changed about October 1980 to refer to Respond-
ent's unfair labor practices. She testified that she also ob-
served that the Union 's vice president Frank Russo
talked to the striking employees when that change was
effected but she did, not heir -what was said . Russo testi-
fied at the hearing but did not 'refer to any change in the
picket signs . Respondent 's witness Wolf testified that the
picket signs did not change , at all in the fall of 1980. I
credit Wolf's testimony as Russo did not offer testimony
to corroborate the General Counsel 's witnesses.
The record is devoid ,of any evidence that the striking
employees were even aware of the unlawful implied
promise of benefit that Wolf made to the replacements,
as found above . Obviously then, the strikers could not
thereby have been. influenced to prolong the strike. No
causal - vexus was established. 10
The credited evidence discloses no basis to support a'
finding that the economic strike was converted to an
unfair labor practice strike.
a Midland-Ross, Inc, 250 NLRB 254, .259 ( 1980)
9 See, e g , K & K Gourmet Meats, 245 NLRB 1331 (1979) -
19 Robbins Co, 233 NLRB 549 (1977), and' cases cited at fn 4 in-that
decision - ' -
F. The Alleged Unlawful Failure of Respondent to
Reinstate Striking Employees' -
1133
The General Counsel and the Union contend that Re-
spondent, in violation of, Section 8(a)(1) and (3) of the
Act, failed and refused to reinstate approximately, 25
striking employees in late March and early .April 1981
after they had unconditionally applied for reinstatement
to their former positions of employment. Respondent
contends that those individuals had not been reinstated at
that time because they had been permanently replaced
during the course of an economic strike,,because they
had abandoned their employment and, as a further alter-
native, because some of them had engaged in acts of seri-
ous misconduct while on the picket line.
During the General Counsel's case-in-chief, evidence
was produced to show that the approximately 25 striking
employees listed on appendix A to the amended. com- "
plaint had submitted to Respondent separate letters, iden-
tically worded, wherein each requested to be reinstated
to work. Those letters were sent to Respondent between
March 20 and April 1, 1981. The evidence proffered by
the General Counsel further established that only 5 of
those approximately 25 employees were reinstated in the
spring of 1981. The names of those five employees
appear below , and alongside each appears the 1981 date
of reinstatement for each: Antonio Cruz-May 11;
Phoebe Ellis-June 15; Linda Carberry-August- 3;
Arlene Vincent-May 11; and Rita James-May 20.
The General Counsel concluded the submission of evi-
dence respecting this allegation by offering evidence that
none of the other employees.who had sought reinstate-
ment and whose names appeared on appendix A, as
amended, had been reinstated by Respondent by May 20,
1981.''
- Respondent's administrator testified that he had turned
over to Bernice Misicka, the secretary. to the director of
nursing for Respondent, the responsibility for reinstating
,the striking employees who requested reinstatement to .
their former positions of employment or,. if- these no
longer existed , to- substantially equivalent positions of
employment. The guidelines established were relatively
simple. These provided' that the names of the striking
employees who sought reinstatement were to be kept on
a preferential hiring list in the order in which application
for reinstatement were received. When a position became
available, the' employees at the top of the list would be
offered a job. If two employees on strike had applied for
reinstatement at the same time , the most senior of those
two employees would be listed ahead' of the other on the
preferential hiring list.
Misicka testified that she in fact had begun to keep
such a list prior to receiving the requests for reinstate-
ment en masse in late March and early April 1981. Her
testimony established that a few of the striking employ-
ees had, several months prior to that time, applied for re-
1! In the interest of proceeding in an orderly manner, I had ruled at
the hearing that the burden at this point had devolved upon Respondent
to-come forward with evidence to show why the other employees had
not been reinstated and to show also why the-five who had been reinstat-
ed were not returned to work within 5 working days-from the date Re-
spondent received their applications for reinstatement.
1134 DECISIONS OF NATIONAL- LABOR RELATIONS BOARD
instatement and that those-employees had been either re-
instated promptly or_as soon as openings occurred. The
records Misicka maintained respecting those few employ-
ees were kept'-by her informally in longhand on a scratch
piece of paper..As the more formal requests for reinstate-
ment were received in late March 1981, Misicka main-
tained-an expanded record, still `however on' a relatively
informal basis. When the full -extent of the reinstatement
requests became clear, she devised a more permanent
system of recording those requests and the developments
thereon. The records she kept disclosed 'that she listed
the names of the employees seeking reinstatement, their
telephone numbers, the dates on which she had discus-
sions with them and notes as to the status-of each. Thus,
where a striking employee indicated that she desired to
be reinstated only on a 3 to 11 p.m. shift, an appropriate
notation thereon was made. If an opening occurred on a
different shift, that employee was not contacted. Misicka
testified -that, on occasion,' some of the striking employ-
ees modified their times of availability - insofar -as the
shifts were concerned and that she thereupon changed
the preferential hiring list accordingly. - -
By October 1981 Respondent had reinstated-16 strik-
ing employees'. Twenty-one others had not then been re-
instated. 12 - . , . . - - -
The General Counsel produced evidence, that Re-
spondent engaged a number of per diem- employees to
work in the place of unit employees on leave (maternity
and otherwise), notwithstanding that there' were then
employees - on strike who had sought reinstatement and
who had not been given the opportunity to perform that
work. The per diem nurses aides filled -in for aides-on
leave and did not - receive any fringe benefits 'which -are
given to the full-time and regular part-time'employees.
Misicka's testimony indicates that the per diem em-
ployees had worked as replacements for employees on
leave and that, when the respective employees on leave
returned to work or ' their -status had been terminated, the
per diem replacements were assigned elsewhere. That ar-
rangement appears-to.be in accord with the established
practice; -there is no evidence that Respondent' adopted
the use of per diem employees -as a subterfuge to frus-
trate the rights of the striking employees -to reinstate-
ment . In that regard,-there is no evidence that any of the
striking employees had applied to Respondent for em-
ployment as per diem aides. - - - -
- Misicka's testimony further established that other strik-
ing employees, -apart from the five named above, were
'reinstated during the summer months of 1981. I note also
that the parties appear to be -in agreement, as-'reflected
during the discussions before the panel meetings - in
August 1980, that attrition accounts for but about -three
jobs a month for striking employees.
I credit Misicka's account as it was fully supported by
the 'available records and was not controverted. -
The-evidence is clearthat'the employees named on ap-
pendix A, 'as amended, were engaged - in an economic
strike and - that-they "had in'late March and early-April
12. Respondent 's list contained the names of other strikers who had re-
quested reinstatement and , whose names , were not listed in the complaint
initially . , - ^
1981- requested reinstatement to-their former positions on -
an unconditional basis. While they were not promptly re-
instated to those jobs, Respondent did come forward
with evidence -which effectively negated an- inference
that those strikers had been unlawfully-denied their rein-
statement rights. The General Counsel did-not thereafter
successfully challenge the evidence proffered by Re-
spondent. i s In . these circumstances, I conclude that the
General Counsel's case has been effectively rebutted and
I shall therefore recommend dismissal of this allegation.
There were three striking employees whom Respond-
ent has declined to consider, for reinstatement; their
names were excluded from the preferential , hiring list
maintained by Misicka. They are Mary Queally, Willie
May Singleton, and Lillie Love.' The discussions as to
their reinstatement rights are contained in the following
subsections. - - -
G. Respondent's Refusal to Put MaryQueally s Name
on the List
Mary Queally had. been employed as a dietary aide by
Respondent from December 1977 to October 1979 when
she went out on strike in support of the Union's contrac-
tual demands. She had also been a member of the
Union's negotiating committee. She had applied to Re-
spondent in March 1981 for reinstatement to'her former
position. As set out below, her name was omitted from
- the preferential hiring list.- - - - -
- Respondent's' administrator Wolf testified that on the
day before the strike 'had begun he had established a pro-
cedure whereby supervisors and security personnel were
to report any acts of violence that -occurred during the
strike and any -acts that would constitute "harassment."
At the beginning of the strike, Wolf received those re-
ports on a daily basis and filed them in his office. Wolf
testified further that when he received-Queally's request
for reinstatement he reviewed his files ,to see if there
were any reports as to misconduct by her.. He testified
that he obtained from his files copies of reports respect-
ing her misconduct and after' having reviewed them he
made the.decision that she was not-fit to return to her
former position for Respondent. Thereupon, Wolf sent
Queally a return letter which stated that it had come to
his attention that Queally may have engaged in serious
'-misconduct during the course of the-strike which may
render her unfit for further service with Respondent.
Wolf'also advised her in that letter that-Respondent was
then' reviewing all the facts and circumstances. Wolf fur-
ther informed her that there were no openings then in
-her former job or in any-other position, that Respondent
did not know when an opening would occur, but that
should one become available Respondent would then -be
11 In its brief the General Counsel presented an exhaustive analysis of
Misicka's records and argued that Respondent 's failure to-have offered
explanations for its not having recalled strikers when temporary openings
appeared to exist must result in a finding of-discrimination There is no
discernible pattern in Misicka's record to indicate that discrimination was
a factor Misicka's uncontroverted testimony that she on occasion took -
extra efforts to accommodate strikers negates an inference of discrimina-
tory motivation. In essence the records themselves do not support an in-
ference of discrimination or warrant rejection of Respondent's contention
that Misicka was handling the recall list in a totally objective manner.
SHALOM NURSING HOME
making a final determination as to her eligibility for rein-
statement and that at that time Respondent would notify
her of its decision Wolf about this same time notified
Misicka, the individual who was maintaining Respond-
ent's preferential hiring list, not to put Queally's name on
that list . Wolf testified initially that he had no personal
knowledge of the matters recounted in the reports on
Queally which he used in deciding to exclude her name
from that list.
Respondent placed those reports on Queally in evi-
dence. The statements recounted therein which were re-
ceived in evidence only to establish that they had been
read by Respondent 's administrator and not for the truth
thereof, set out the following points on which Respond-
ent asserts that it had reasonable cause to believe that
Queally had engaged in misconduct sufficient to bar-her
reinstatement to her former job:
1. On October 22 Queally threw a cup of coffee
on •a car in which Wolf and others were riding. The
witness to that incident was a Sergeant Muller.
2. An assault by Queally on employee Emma
Johnson on February 23, 1980.
3 On September 4, 1980 Queally threatened
Evelyn Newell , LPN, with a very large stick or a
branch of a tree.
4. On April 9 , 1980 Queally sprayed Accamma
Jacob , a registered nurse at Respondent 's home,
with rain water by opening and closing an umbrella
alongside her.
5. On March 14, 1980 Queally called a pharma-
cist in Respondent's employ a "Jew Fuck."
6. On December 11, 1977 Queally was a passen-
ger in a car which briefly followed a van which
was transporting employees working at Respond-
ent's Home.
7. On April 4, 1980 Queally spit on the window
of the car being driven by an employee, Helen
Gileta.
8. Queally was in the vicinity of a car parked by
a guard who later found that the two rear tires of
his car had been slashed.
9. On February 18, 1980 Queally , for five minutes
blocked a vehicle driven by a nurse from entering
Respondent's premises.
10. On • February 29, 1980 Queally yelled
"Nigger" at all black female employees of Respond-
ent as they entered and left the property.
11. On February 20, 1980 Queally and others
blocked a van from entering Respondent 's premises
for over 30 minutes.
12. On March 14, 1980 Queally made vulgar
comments to a black female employee and then
cursed her husband after he had warned her to stop.
The report indicated that Respondent 's security su-
pervisor, Larry Wall, observed the entire incident.
13. On March 28, 1980 Queally and another em-
ployee repeatedly called several of the Black em-
ployees who were working "Niggers."
14 On March 28, 1980 Queally deliberately
stopped her car in front of a car driven by a guard
and forced the guard to blow the horn on her car
1135
for about 45 seconds before Queally moved her car.
This incident was repeated once more before the
guard was able to enter the driveway without fur-
ther incident.
15. On April 15 , 1980 Queally again referred to
Black employees entering and leaving Respondent's
property as "Niggers."
16. On April 16 , 1980 Queally held up a nude
male centerfold in front of the windshield of several
employees as they entered the premises Among
them ' was the individual who filed the report, J.
Wall - The report indicated that Respondent's ad-
ministrator Wolf was also'a witness'to,that incident.
17: On August 29, 1980 Wolf prepared a long
hand report in which he related that Queally and
several other pickets had blocked the driveway for
about ten minutes when a truck was attempting to
make a delivery . The report indicated that Queally
had called Wolf "Ayatollah."
Wolf testified during Respondent 's case that he had'
direct knowledge of remarks made by Queally and direct
knowledge of the. incident on which Queally threw
coffee on the car in which he was a passenger.
Queally was called as a rebuttal witness by the Gener-
al Counsel . Respecting the alleged incident with Emma
Johnson , Queally testified that Johnson had been on the
picket line for a number of months and that Johnson
then decided to return to work. It appears that she was
reinstated promptly by Respondent . Queally testified that
she and several other striking employees met Johnson by
the bus stop shortly after she finished work and they at-
tempted to persuade her to rejoin the picket line . Queally
stated that without provocation Johnson pushed her
down to the ground and started hitting her on the head.
Queally stated that the other individuals present then
pulled Johnson away.-
Johnson's account of that incident is not substantially
different from Queally 's. She testified on behalf of Re-
spondent that Queally came over to her and "put her
finger in . [my] face." She stated that thereupon they
"started fighting ." On cross-examination , she testified
that - when Queally put her finger in front of her face,
Johnson knocked Queally on the ground and kept Queal-
ly there until the others pulled her off.
With respect to the alleged incident in which Queally
threw coffee on a car, Queally testified that on the day
in question "a lot of coffee" had been thrown on the car
and that she had attempted to • stop one of the pickets
from throwing a cup when she was grabbed by a police
officer and was forcibly thrown back . None of the police
officers involved testified at the hearing . The only direct
testimony in the record implicating Queally is Wolfs
version that he personally witnessed the incident. It is
.noted that the report itself does not so reflect this; it
merely reports that Wolf and others were passengers in
the car at the. time. Further, Wolf did not controvert
Queally 's account that many cups of coffee had been
poured onto the car or that Queally 's arm was seized by
a police officer and that she was thrown to the ground.
In view of the conclusionary . nature of the testimony of-
fered by Respondent , I credit Queally 's account.
1136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Queally testified respecting the alleged incident involv-
ing nurse Evelyn Newell and denied that she had at any
time ever threatened her with a large thick branch of a
tree. Newell thereupon testified on behalf of Respondent.
Her account indicated that on one occasion Queally
picked up a large branch, made a few menacing steps to-
wards Newell's car, and then broke out into laughter
which was joined in by other pickets.
• Concerning the alleged incident in which Queally
sprayed rain water on employee Accamma - Jacobs,
Queally testified that there was one occasion when it was
raining that she and other pickets shook umbrellas at the
closed windows of the van which Respondent used to
convey employees through the picket line. Queally
denied that on any. occasion she sprayed water directly
on Jacobs or any other employees.
Queally, in testifying respecting the alleged antissemitic
remark made to a pharmacist, employed elsewhere by
Respondent, denied that she had- even done so. On cross-
examination she was questioned closely respecting this
allegation and vigorously denied that allegation . I credit
her, denial. In making that determination, I note that the
individual who allegedly reported the incident to Re-
spondent did not- testify thereon. I note also that the
report recounted that Respondent's security supervisor
Larry Wall was the individual to whom the pharmacist
pointed out Queally as being one who' made the antisemi-
tic remark and that Wall did not testify. Further al-
though Wolf had-indicated that he had direct knowledge
of ethic remarks made by Queally, his testimony did not
refer to this alleged incident. There is one last point.
Counsel for Respondent called a witness to testify, inter
alia; as to various aspects of Queally' s actions while.pick-
eting . She denied, in her direct examination , having ever
heard Queally make an antisemitic remark. The way she
so testified suggested to me that she believed that Queal-
ly would not engage in such conduct.
Respecting the accusation that she delayed an employ-
ee named Jalette from entering onto or leaving Respond-
ent's Premises, Queally testified she had no recollection
of any such incident. She testified that she and the other
pickets closely followed the orders given by the Yonkers
police whereby they were permitted to walk slowly in
front of any vehicle or person endeavoring to cross the
picket line. She testified the pickets were told they were
,subject to arrest if they delayed the entry or exit of
anyone for more than 30 seconds. I am persuaded that
Queally ws engaged in routine picketing activities and I
find that she did not unduly delay A he entry or exit of
any person at Respondent' s premises.
Queally's testimony on behalf of the General Counsel
further controverted the remaining matters contained in
the reports on which Respondent' s- administrator stated
he relied on in determining that she was not to be rein-
stated. In particular Queally denied ever having followed
any van, blocked any car, spat on any car, exhibited any
nude male centerfolds to any of the picketing employees,
or slashed any tires. Respondent called- no witnesses with
respect to the last item _ referred to, i.e., the allegation
that tires were slashed. I credit her denial respecting the
pervisor Larry Wall had witnessed that incident and as
he did not testify thereon. I also credit her denial re-
specting the alleged exhibition of a nude male centerfold.
The report thereon relied on by Respondent's administra-
tor contained his own name and three others as wit-
nesses. Respondent did offer'a witness at the hearing in
support of that allegation but that witness' name is not
contained in the report relied on by Wolf, the one he
himself filed. That report pertains to an alleged blocking
of a_ van from entering for an appreciable period of time.
As noted above, I credit Queally's account that she had
at no time blocked any person or vehicle from entering
onto or exiting from Respondent's premises for more
than a 30-second interval.
Respecting those reports which referred to Queally's
having called various of the striking replacements "Nig-
gers," Queally testified that virtually all of the striking
employees and the strike replacements were Black and
that she was one of the few white employees. She testi-
fied that at times she had joined in with most of the pick-
ets, who were Black, when they shouted to the replace-
ments that they were "Niggers." Her testimony, which
was uncontroverted, indicates that that term was used by
both strikers and replacements in an open manner. Queal-
ly testified further that she did refer to one of the re-
placements as a "half breed." Her testimony, indicated
that, when that employee's husband told her in a reprov-
ing manner that-she should not have made such com-
ments , she apologized to him and refrained thereafter
from making any racial comments. Queally testified fur-
ther that there had been a lot of name calling on both
sides as replacements went through the picket line.
The credible probative evidence discloses that Queally
engaged in none of the conduct attributed to her in the
reports read and considered by Wolf, except for one
aspect. On that one matter, the evidence is clear that she
at one time joined with other pickets who were. Black in
using the word "Niggers" to some replacements who
were going through the picket line; the evidence also
shows that on occasion, the replacements responded in
kind. While the term is opprobrious, Queally's participa-
tion in that incident, taken in overall context, would not
lead to such strained relations with other employees
were she permitted to return to work for Respondent; it
would not be an abuse of the Board's remedial powers to
order her reinstatement. 14
The General Counsel has established by a preponder-
ance of the credible evidence that Queally did not
engage in misconduct which would bar her reinstatement
to employment with Respondent. Accordingly, I fmd
that Respondent's refusal to place her name on its prefer-
ential hiriiig list prevented it from recalling her to work
when an appropriate opening developed. Such refusal
interfered with-her rights under Section 7 of the Act. i s
incident in which she' allegedly spat on the car as the 14 See J W Microelectronics Corp, 259 NLRB 327 (1981)
report thereon indicated that Respondent's security su- ' Cf NLRB v. Great Dane Trailers, 388 U S. 26 (1967)
SHALOM NURSING HOME
H. Respondent's Refusal to Put Lillie Love's Name on
the List
Lillie Love had worked for Respondent as a nurses
aide until she took part in the strike in October 1979. She
had been a member of the Union's negotiating commit-
tee. In the spring of 1981, she applied unconditionally for
reinstatement. In response, she received a letter worded
identically to the one Queally received, the substance of
which has been related before. Respondent's administra-
tor testified that that letter was sent after he reviewed his
files and read the reports therein pertaining to Love's as-
serted misconduct. Copies of those reports .were placed
in evidence.
One report, dated October 21, 1979, related that Love
on that day shouted to an employee of Respondent who
had been crippled since birth the following remark,
"Why don't you get up and walk." Later that day, Love
told another employees, whose sister was an amputee
that her sister has "a peg leg."
A second report on Love considered by Wolf was
dated October 25, 1979, and cites "foul language" she
supposedly used on the picket line and that she was one
of a group of pickets who -surrounded the employee
whose name appears in the report, Emma Tillman. The
report concludes with-an observation that another female
employee went to the picket line and escorted Tillman
through the picket line without further incident.
- A third report, and several others related to it, set
forth Love's purported involvement in the incident
which preceded the death of a man named Nelly who
was the husband of one of Respondent's employees.
A fourth report pertained to Love's being arrested by
a local police officer while on the picket line.
The General Counsel called Love as a witness who
denied that she taunted anyone about being handicapped,
that she was involved with other pickets who surround-
ed or harassed any employee who was crossing the
picket line, that she was involved in any altercation with
or about Nelly or that she had' done anything to warrant
being arrested by a police officer.
Respondent thereupon called two individuals to rebut
Love's testimony. The first testified that Love did' taunt
her by telling her to get up and" walk, notwithstanding,
that she'has been in a wheelchair since childhood. The
second, Respondent's assistant administrator, testified
that she heard Love refer to her sister as a "peg leg."
The assistant administrator also testified that she heard
Nelly scream at Love and other pickets shortly after her
husband had collapsed and that Love, with them, left the
area chanting, "We got one. We got one. We killed some
white trash." Respondent's assistant administrator further
testified that Love and the other pickets with her then
began _ chanting as' they 'left the front of Respondent's
premises, "We killed one and we'll kill you too."
I credit the accounts of Respondent's witnesses. The
first is no longer in Respondent's employ and gave a
vivid, forthright account The second, Respondent's as-
sistant administrator, also impressed me as candid.
Respecting the other matters contained in the reports
relied on by Wolf, I credit Love's denials. I note that as
to those matters, Respondent called no witnesses to con-
trovert those denials.
1137
The credited evidence establishes that Love engaged
in two of the incidents referred to in the reports relied
on by Wolf. On one occasion, she taunted a handicapped
employee as to her disability and a supervisor as, to a
handicap suffered by the supervisor's' sister. On another
occasion, she chanted some crude racial remarks when
the husband of an employee of Respondent died sudden-
ly near the picket line.
It is well settled that not every impropriety committed
during a strike deprives an employee of the Act's protec-
tion; impulsive behavior is to be expected, especially
when diiected against nonstrikers or replacements; a line
must be drawn where employees exceed. the bounds of
lawful conduct and those flagrant cases in which the mis-
conduct is violent or of such serious character as to
render the employees unfit for further service. 16
The misconduct Love engaged in by making com-
ments about physically handicapped people and by
chanting a racist remark is not to be condoned. That
conduct however was isolated to those occasions. I note
also that- the racist remark may well have been precipi-
tated by an unfair accusation that Love was the ,cause of
the heart attack that led to the death of an employee's
husband near the picket line. Taken in overall context,
her conduct in both incidents was not so egregious as to
render her unfit for further service with Respondent. 17 I
thus find that Respondent improperly excluded her name
from the preferential hiring list.
I. Respondent's Refusal to Put Willie Mae Singleton's
Name on the List
Willie Mae Singleton was a nurses aide who participat-
ed in the strike called by the Union. She also served on
the Union's negotiating committee with Queally and
others Singleton sent a letter to Respondent in - the
spring of 1981 seeking reinstatement and received from
Respondent the identical response Queally received, as
set out above. Respondent's administrator Wolf excluded
Singleton's name from the preferential hiring list kept by
Bernice Misicka, also as discussed above Wolf -based
that decision on certain reports to him.
One of the reports he relied on related that Singleton,
while picketing, hit an employee with a stick and told
him that he would end up "in a pine box.' Singleton did
not appear as a witness; the General Counsel offered. no
evidence to establish that Singleton did not engaged in
the reported misconduct. As it appears that Wolf could
readily have inferred from the report that Singleton as-
saulted- an employee without provocation and threatened
that he would be killed, and- as there is no evidence to
show that that report. was inaccurate, I find that Single-
ton's name was lawfully excluded from the preferential
hiring list. 18 .
16 J W Microelectronics Corp, supra
Ir Respondent would have a special standard apply to its employees as
they are employed in patient care I have taken that fact into consider-
ation I .see no basis to adopt a special standard as there is no basis to find
that nursing home employees are of a higher moral character than other
people •
18 IPCO Hospital Supply Corp, 255 NLRB 819 (1981) Wolf relied on
three other reports, none 'of which would have warranted her not being -
reinstated
1138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
J. The General Counsel's Request for a "Gissel"
Bargaining Order
In brief, the General Counsel urges that the "egre-
gious" unlawful conduct engaged in by Respondent re-
quires 'a bargaining order remedy as it seriously inter-
fered with the employees' free choice. My review of the
amended pleadings and of'the transcript in this-case fails
to disclose that the General Counsel had raised that
matter as a specific issue of consideration, prior to the
time it filed its brief. Presumably, it is raised somewhere
in the voluminous records in this case but I cannot read-
ily find a reference to it.- In any-event, the short answer
to the General Counsel's contention is that the unlawful
conduct found is not egregious.19
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2),'(6), and (7) of the
Act. -
2. The Union is a labor organization as defined in Sec-
tion 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act
when its administrator Howard Wolf impliedly promised
benefits to its employees to induce them to vote against
the Union in the election then to be held in Case 2-RD-
1015. -
4. Respondent violated Section 8(a)(1) of the Act by
refusing to place the names of Mary Ann Queally and
Lillie Love on its preferential hiring list.20
5. Respondent did not commit any other alleged viola-
tion of the Act.
6. It will not effectuate the policies of the Act to' re-
quire Respondent to bargain collectively with the Union.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed21
ORDER'
The Respondent, National Council of -Young Israel,
d/b/a Shalom Nursing Home, Yonkers, New York, its
officers, agents, successors , and assigns, shall
19 NLRB v. Gissel Packing Co, 395 U S 575 (1969)
20 NLRB v Burnup & Sims, 379 U S 21 (1964), Coronet Casuals, 207
NLRB 304 (1973) To remedy this violation , Respondent shall place their
names on the list , offer them reinstatement if their names would have
been reached had they been properly listed, and make them whole for all
backpay they lost-to be computed in accordance with the formula set
out in F. W Woolworth Ca , 90 NLRB 289 (1950), Isis Plumbing Co, 138
NLRB 716 (1962),, and Florida Steel Corp, 231 NLRB 651 (1977)
21 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations , the findings, conclusions , and recommended
Order shall, as provided in Sec 102 .48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
1. Cease and desist from '
(a) Promising benefits to its employees to induce them
to vote against the Union.
(b) Refusing to place the names of striking employees
on its preferential hiring list on their unconditional appli-
cation for reinstatement to their former positions where
the refusal is based on reports of misconduct lacking fac-
tual support.'
(c) In any like or related manner interfering with, re-
straining , or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Notify Mary Queally and Lillie Love by certified
mail that their names have been placed on Respondent's
preferential hiring list, recall them-t6 work if their names
would have been reached on that list had they been
listed properly at the time they applied for reinstatement,
and make them whole for all backpay lost as provided
for in footnote 20 of this decision.
(b) Preserve and, on -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 nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(c) Post at its Yonkers, New York nursing home
copies of the attached notice marked "Appendix."22
Copies of the notice, on forms provided by the Regional
Director for Region 2, after 'being signed by, the Re-
spondent's authorized representative,' shall be posted by
the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered,-defaced, or
covered by any other material.
(d) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply. -
IT IS FURTHER RECOMMENDED that the alleged viola-
tions found to be without merit above as noted in para-
graph 5 of the section entitled Conclusions of Law are
dismissed , as is the General Counsel's request that Re-
spondent be ordered to bargain collectively with the
Union.
22 If 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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board " -