Smithtown Nursing Home

National Labor Relations Board - Board Decisions

Feb 8, 1977

228 N.L.R.B. 23 (N.L.R.B. 1977)

SMITHTOWN NURSING HOME 23
Herbert Kallen, d/b/a Smithtown Nursing Home,
Smithtown Senior Home , and Smithtown Lodge
and District 1199, National Union of Hospital and
Health Care Employees , Retail , Wholesale and
Department Store Union , AFL-CIO. Cases 29-
CA-4252 and 29-RC-2860
February 8, 1977
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
JENKINS AND WALTHER
On March 18, 1976, Administrative Law Judge
Samuel Ross issued the attached decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief. Respondent also filed a
motion for rehearing de novoi and a memorandum in
support thereof, The General Counsel filed a brief in
support of the Administrative Law Judge's Decision
and a brief in opposition to Respondent's exceptions
and motion for rehearing de novo.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions, motion,
and briefs and has decided to affirm the rulings,
findings,2 and conclusions3 of the Administrative
Law Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Herbert Kallen,
d/b/a Smithtown Nursing Home, Smithtown Senior
Home, and Smithtown Lodge, Smithtown, New
York, its officers, agents successors, and assigns, shall
take the action set forth in the said recommended
Order.
IT IS FURTHER ORDERED that the petition in Case
29-RC-2860 be, and it hereby is, dismissed.
' We hereby deny Respondent 's motion for rehearing de novo as lacking
in merit
2 Respondent has excepted to certain credibility findings made by the
Administrative Law Judge It is the Board's established policy not to overrule
an Administrative Law Judge 's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect . Standard Dry Wall Products, Inc, 91 NLRB 544
(1950), enfd 188 F 2d 362 (C A 3, 1951) We have carefully examined the
record and find no basis for reversing his findings
The Administrative Law Judge inadvertently found at sec III, E, par 4, of
his Decision that Respondent gave unusually large wage increases to
employees on December 10, 1974 It is clear from the record that such
increases were given on December 20, 1974
228 NLRB No. 8
Relying in part on the credited testimony of employee Bellantomo, the
Administrative Law Judge found, inter alga, that Respondent unlawfully
threatened to make negotiations difficult and prolonged In our view, this
finding is strengthened by additional testimony of Bellantonio which was not
retied on by the Administrative Law Judge, to the effect that Respondent
told employees "They [ Respondent ] didn' t have to negotiate if they didn't
want to it would take a long time . If they negotiated at all "
Although we agree with the Administrative Law Judge that Respondent
unlawfully withheld raises from some of the unit employees based on
Administrator Kaye's admission that he took this action "because of the
advent of the Union organizing drive," we find that Respondent 's overall
conduct with respect to wage increases, including its unlawful granting of
wage increases, constituted a selective application of its wage rate policy in
violation of Sec . 8(ax 1).
3 As noted above , the Administrative Law Judge inadvertently found that
the Respondent embarked on its campaign to destroy the Union's majority
status on December 10, 1974, rather than on December 20 when the wage
increases constituting the first of Respondent 's unfair labor practices
actually were given . In accordance, therefore , with the principles enunciated
in Trading Port, Inc, 219 NLRB 298 (1975), we find and conclude that the
bargaining order should commence from that date and not the date of the
demand for recognition , as was found by the Administrative Law Judge Carl
Corporation, a wholly owned subsidiary ofO'Connor Industries, 222 NLRB 243
(1976), Franklin Parish Broadcasting, Inc., 222 1133 (1976).
Member Jenkins would find the 8 (aX5) violation as of the date Respon-
dent refused the Union's demand for recognition on December II, and
would date the bargaining obligation from that date
DECISION
STATEMENT OF THE CASE
SAMUEL Ross , Administrative Law Judge : Case 29-CA-
4252 is based on a charge filed by the above-named Union
on March 10, 1975, and on a complaint which issued
thereon on June 30 , 1975, against Herbert Kallen, d/b/a
Smithtown Nursing Home , Smithtown Senior Home, and
Smithtown Lodge , herein Respondent , which alleges that
Respondent engaged in unfair labor practices within the
meaning of Sections 8(a)(l) and 2 (6) and (7) of the Act. The
complaint was amended on August 20, 1975, to allege that
Respondent also engaged in unfair labor practices within
the meaning of Section 8(a)(5) of the Act. More specifically,
the complaint as amended alleges that , after Respondent
was apprised by a demand for recognition that the above-
named Union represented a majority of its employees in a
unit appropriate for the purposes of collective bargaining, it
refused to recognize the Union and it thereafter engaged in
various acts of interference , restraint , and coercion of its
employees in order to undermine and dissipate the Union's
majority status among the said employees . Respondent
filed an answer which denies the substantive allegations of
the complaint and the commission of unfair labor practices.
Case-29-RC-2860 is based on a petition filed by the
above-named Union on December 17, 1974, for certifica-
tion as the collective-bargaining representative of the said
employees . Pursuant to the said petition , an election was
conducted by the Board on February 28, 1975, which
resulted in four votes for the Union and seven against with
no challenged ballots . The Union thereafter filed timely
objections to conduct affecting the results of the election
which in substance allege that Respondent interfered with
the holding of a fair election by conduct which also is
alleged as unfair labor practices in Case 29 -CA-4252.
Inasmuch as the Regional Director issued a complaint in
the latter case , based, inter alia, on the same conduct as that
alleged in some of the Union 's objections to the election,
24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Regional Director issued an order on August 25, 1975, III. THE UNFAIR LABOR PRACTICES
consolidating the two cases for hearing, ruling, and disposi-
tion by an Administrative Law Judge.
These consolidated cases were heard before me on
October 20, 21, and 22, 1975, in Hauppauge and Commack,
New York. Upon the entire record, i including my observa-
tion of the witnesses and their demeanor, and after due
consideration of the briefs filed by the parties, I make the
following:
FINDINGS OF FACT
1. COMMERCE
Respondent is an individual who owns and operates three
facilities on a 15-acre tract of land in Smithtown, New
York. The three facilities are known as the Smithtown
Nursing Home, an institution where a high degree of
medical care is available to patients; the Smithtown Lodge,
a moderate care institution; and the Smithtown Senior
Home, an adult residence facility where minimal medical
assistance is provided. The Nursing Home and Lodge are
connected buildings. The Senior Home is located about 150
yards away. The three facilities are operated as a single-
integrated business enterprise with a common labor policy
for the employees. During the past year, a representative
period, Respondent derived gross revenues in excess of
$100,000 from the operation of the said facilities. During
the same period, Respondent purchased and caused to be
delivered to the said facilities goods and materials valued in
excess of $50,000 which were transported and delivered to
him from enterprises located in the State of New York
which received the said goods and materials in interstate
commerce directly from places located outside the State of
New York. Upon the foregoing undisputed facts, Respon-
dent admits and I find that he is engaged in commerce and
in operations affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
Ii. THE LABOR ORGANIZATION INVOLVED
Respondent also admits and I find that District 1199,
National Union of Hospital and Health Care Employees,
Retail , Wholesale and Department Store Union, AFL-
CIO, herein the Union , is a labor organization within the
meaning of Section 2 (5) of the Act.
i The transcript of the earlier hearing in Case 29-RC-2860 was made a
part of the record in the instant hearing as G.C Exh 10
2 The parties are in disagreement as to whether Gloria Mulgrew, one of
the three recreation aides in the Lodge, was an employee or supervisor at the
times material herein This issue will be determined infra.
3 The recreation aides who signed cards at this meeting were Charlotte
Eith, Sonya Pierce, Nancy Bellantonio, Barbara May, and Helene Race
4 Respondent contends that the card signed by Manlyn Suspenski should
A. Background
The Union has been the collective-bargaining representa-
tive of several units of Respondent's employees for a
number of years. It has represented Respondent's service
and maintenance employees for about 5 years, and the
licensed practical nurses and registered nurses for about 2
years. In each case, Respondent recognized the Union as
the representative of the employees in the said units on the
basis of a card check and without resort to the election
procedures of the Board.
In addition to the employees represented by the Union,
Respondent also employs recreation aides and one social
service employee who had not previously been represented
by any labor organization. The recreation aides are
employees whose function it is to involve Respondent's
patients and residents in games, exercises, and other
activities and to thereby enable them to lead a more
meaningful existence than just lying or sitting around and
doing nothing. The social service employees' function is to
counsel Respondent's patients concerning their adjustment
problems. In Case 29-RC-2860, the Regional Director
found that Diane Castiglia, the social service employee, is a
professional employee within the meaning of Section 2(12)
of the Act. At the times material herein, Respondent
employed seven recreation aides in the Nursing Home, two
or three in the Lodge, and one in the Senior Home.2
B. Union Organization and the Demand for
Recognition
On December 4, 1974, the Union began a campaign to
organize Respondent's recreation aides. On that date, at an
organizational meeting conducted by Grace Du Breuil, an
organizer for the Union, five of the recreation aides signed
cards applying for membership in the Union and authoriz-
ing the Union to represent them for collective-bargaining
purposes .3 On December 11, 1974, Du Breuil received two
additional cards signed by recreation aides Rosalyn Faust
and Marilyn Suspenski.4 The Union thus had authoriza-
tions to represent 7 of the 10 or II recreation aides
employed by Respondent.
On the morning of December 11, 1974, shortly before the
recreation aides were scheduled to begin work, Du Breuil,
accompanied by six (a majority) of Respondent's recreation
aides, entered the office of Administrator Owen Kaye and
requested immediate recognition of the Union as the
collective-bargaining representative of the recreation aides.
According to Du Breuil , whom I credit, she suggested to
not be counted towards the Union's majority because there is no testimony
that anyone saw her sign the card However , Nancy Bellantonio credibly
testified without contradiction that she gave a blank union card to Suspenski
for signature and that Suspenski later returned her signed card to Bellanto-
mo. In the light of that testimony, and the absence of any evidence that
Suspenski 's signature is not genuine , I find that Suspenski signed the card
which she gave to Bellantonio
SMITHTOWN NURSING HOME
Kaye that a card count be used as in the past. Kaye replied
that "that sounded reasonable" and that "he would get
back to me (Du Breuil)."5 Du Breuil thanked Kaye and she
and the recreation aides then left his office. As they did so,
they encountered Diane Castiglia, the social service em-
ployee, who told Du Breuil that she had decided to join the
Union. Du Breuil thereupon gave Castiglia a membership
application and authorization card which Castiglia prompt-
ly filled out and signed. Du Breuil and Castiglia then sought
out Kaye, and Du Breuil advised him that the Union's
request for recognition was intended to include Diane
Castiglia, the social service employee. Kaye again respond-
ed that he would get back to Du Breuil. However, on
December 17, 1974, Kaye sent the following mailgram to
the Union:
WE ARE IN RECEIPT OF YOUR MAILGRAM DATED 12-12-74
WE DOUBT THAT YOU REPRESENT A MAJORITY OF THE
EMPLOYEES IN THE SOCIAL SERVICES AND OR RECREATION
DEPARTMENT INFORMATION IS AT OUR DISPOSAL WHICH
CLEARLY INDICATES THAT YOUR REQUESTS FOR
RECOGNIZATION IS INPROPER (SIC) IF YOU WISH YOU MAY
ULITIZE (SIC) PROPER PROCEDURES OF THE NATIONAL
LABOR RELATIONS BOARD IN THIS MATTER
OWEN KAYE
ADMINISTRATOR
SMITHTOWN NURSING HOME
C. The Appropriate Unit and the Union 's Majority
Status
The complaint alleges , Respondent at the hearing admit-
ted, and I find that the following unit of employees is
appropriate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act:
All recreation aides and the social service employee
employed by the Respondent, excluding all other
employees, guards, watchmen and supervisors as de-
fined in the Act.
On December 11, 1974, when the Union demanded
recognition as the collective-bargaining representative of
the recreation aides and the social service employee,
Respondent employed either 10 or 11 recreation aides,
depending on whether Gloria Mulgrew, whose status is in
dispute, was then a supervisor or not. The General Counsel
contends that Mulgrew has been a supervisor at all the
times material herein. Respondent admits that Mulgrew is
now a supervisor, but it contends, based on her vote at the
election without challenge, that she was an employee when
the demand for recognition was made and when the
5 According to Du Breuil and Bellantonio whom I credit, Du Breuil was
accompanied on this occasion by recreation aides Race, Pierce , Eith, May,
Faust, and Bellantonio Barbara May also credibly testified that she was
present when the demand for recognition was made Administrator Kaye
testified that May was on vacation on that date, and that he did not recall
seeing her Later, when it was pointed out to Kaye that despite May's
vacation status , she still could have been present when the demand for
recognition was made , Kaye testified "more affirmatively" that she had not
been there Still later, on cross-examination , Kaye testified that when Du
Breuil came to his office to request recognition for the recreation aides,
"about 10 people I would say were there " In the light of that response, it is
25
election took place. According to Kenneth Kallen, the son
of Respondent and the director of operations of Respon-
dent's facilities, Mulgrew has been "Recreational Director"
at the Lodge since prior to December 11, 1974, the date of
the demand for recognition. In addition to Mulgrew,
Respondent has two other recreation aides at the Lodge,
Patti McLellan and Dolores Birkbeck, each of whom
received $2.50 per hour in December 1974. Mulgrew,
however, unlike these and all the other recreation aides who
are paid by the hour and punch a timeclock, was promoted
to "recreation head" and put "in charge of recreation in the
Lodge" on September 25, 1974, and was then given a
weekly salary of $150.6 I conclude from all the foregoing,
including her weekly salary status, her substantially higher
compensation, and her designation as recreational director
at the Lodge, that on December 11, 1974, when the Union
demanded recognition, Gloria Mulgrew was and ever since
has been a supervisor of Respondent within the meaning of
Section 2(11) of the Act. I therefore find that when the
Umon demanded recognition, Respondent employed 10
recreation aides in the appropriate unit found above.
As previously noted, in Case 29-RC-2860, the Regional
Director found that Diane Castiglia, the social service
employee, was a professional employee within the meaning
of Section 2(12) of the Act. The Regional Director further
found that if the social service employee so chose, her
inclusion in the unit with the recreation aides was appropri-
ate for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act. Castiglia disclosed on
December 11, 1974, that she desired to be included in the
aforesaid appropriate unit by signing the Union's member-
ship application and authorization card on that date, and
by accompanying Union Organizer Du Breuil when she
told Administrator Kaye that her demand for recognition
was intended to include Castiglia.7 There were thus II
employees in the appropriate unit on December 11, 1974,
when the Union demanded recognition as the representa-
tives of the recreation aides and the social service employee.
On that date, the Union had authorization cards signed by
eight of the employees in the appropriate unit, and thus
clearly represented a majority of the employees in the unit.
Moreover, since seven of the employees in the unit
accompanied Du Breuil when she made the two demands
for recognition, it is quite obvious that Respondent knew
that the Union represented a majority of the employees in
the appropriate unit.
Respondent contends that the authorization cards of four
of the employees in the appropriate unit, those of Marilyn
Suspenski, Diane Castiglia, Rosalyn Faust, and Barbara
May, should not be counted as part of the Union's majority
status. It contends that Marilyn Suspenski's card should not
be counted because its genuineness was not properly
fairly evident that Du Breuil was accompanied by the six recreation aides
named above, and since I consider Kaye's testimony as unreliable in many
respects , I do not credit his testimony that May was not present when the
demand for recognition was made
6 Anne O'Hara, Respondent's employee in charge of payroll and a
witness for Respondent , so testified Prior to the said promotion, Mulgrew
had worked at the hourly rate of $3.Only one other recreation aide, Barbara
May, received an hourly rate as high as $3 at that time.
7 Castigha also voted later at the Board election on February 28, 1975, for
inclusion in the unit
26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
authenticated. However, as found above, I regard her card
to have been properly validated by Bellantomo's testimony,
and I reject Respondent's contention as to her card.
Respondent contends further that the cards of Diane
Castiglia and Rosalyn Faust should not be counted because
they assertedly "were led to believe that they would
automatically get benefits" if they signed the cards.8 The
credited testimony does not support this contention as to
either of these employees. Castiglia first testified that,
before she signed the Union's card, Du Breuil had told her
on the telephone about the medical, dental, wage, and other
benefits which the Union "could get" for her. Castiglia then
testified that she was told by Du Breuil that "by joining the
Union, I would have them [these benefits]." I do not credit
Castiglia's testimony in this latter respect for the following
reasons , including my assessment of her testimony as
frequently evasive and generally unreliable. Castigha ad-
mitted on cross-examination, albeit reluctantly, that her
latter response represented an impression which she drew
from her conversation with Du Breuil. Castiglia further
admitted that she had never been told by Du Breuil that the
Union benefits "would come automatically from the Union
without negotiation," and that she knew that wage increas-
es come from the employer and not the Union. Similarly,
Faust, a witness for the General Counsel, testified on cross-
examination that the recreation aides were told by Du
Breuil that they "would get a much higher salary than we
were presently receiving from the Home. And other
benefits were mentioned." Faust conceded, however, that
they were told by Du Breuil that "the Union was going to
try to get these benefits for us." Du Breuil, whom I credit in
this regard, testified that she told Castiglia and the
recreation aides about the benefits which the Union already
had won through negotiations for the nurses aides, and that
she was going "to try to get the same benefits for the
recreation aides and the social service worker." I conclude
from the foregoing credited testimony of Faust and Du
Breuil that the cards of Castiglia and Faust were not
obtained through any misrepresentation that they would
automatically result in higher wages and better benefits. I
therefore reject the contention of Respondent that the cards
of these two employees should not be counted towards the
Union's majority status.
Respondent finally contends that the card signed by
Barbara May should not be counted because she had been
told before she signed the card that it "was not binding,"
and that she "could have the card back at any time." The
short answer to this contention is that there is no evidence
that May ever asked the Union to return her card, and that,
to the contrary, May accompanied Du Breuil to Kaye's
office when Du Breuil, in the company of six of the
recreation aides, demanded recognition of the Union as
their representative. I therefore reject as without merit the
contention that May's card should not be counted, and I
again conclude that on December 11, 1974, the Union
represented 8 of the 11 employees in the appropriate unit, a
clear majority.
8 The quotes are from the Respondent's brief
9 After much evasion, Administrator Kaye finally conceded that the
purpose of the meetings was to "get them [the employees ] to vote for
management "
D. The Respondent's Campaign To Dissipate the
Union's Majority Status
1. Promises and threats before the Board's
election
Following the Union's request for recognition and the
filing of its certification petition, Respondent held a serves
of six meetings with the employees in the appropriate unit
for the admitted purpose of persuading them to vote against
representation by the Union .9 The meetings were held
during working hours and the unit employees who worked
on the days that they occurred concededly were "captive
audiences." The meetings were addressed by Administrator
Kaye. Director of Operations Kenneth Kallen, Respon-
dent's son, attended several of the meetings and spoke to
the employees at one of them. Other supervisors also were
present at some of the meetings.
At these meetings, Kaye told the recreation aides that
there had been a lack of communication between Respon-
dent and the employees, and that he was there to listen to
their complaints and gripes. Kaye said that he thought that
the wage rate of $2.50 an hour which many of them were
receiving was low, and while he could make no promises
regarding what Respondent would do about it, he believed
that they "should have an increase in salary," and promised
"to review the matter of wages when the [union ] matter was
resolved." Kaye also said that Respondent had instituted a
new personnel policy which would apply to them "if there
was no Union," and that while he could not legally reveal
the details of what the new policy contained, and the
employees would have to take his word for it, the new
policy in fact was very good, "would make things better,"
and the recreation aides would "appreciate" its contents
which would be made applicable to them "if the Adminis-
tration [the Respondent] won the election." Kaye said that,
on the other hand, if the Union became their representative,
the employees would no longer be able to come to him
directly with their problems, and would, instead, have to do
so through the Union. Kaye further said that voting the
Union in would not necessarily get the employees what they
wanted, and that unlike his previous negotiations with the
Union, his approach now to negotiating with the Union
would be different, he was "going to really bargain," and
"make negotiations difficult for us," he would fight it if the
Union got in, and if it "resulted in a labor action or strike,
so be it." Kaye further said that the negotiations would take
a long time, and Kallen said it might take "until July." At
one of the meetings , Respondent handed out a leaflet in
which employees were requested to ask the Union to
"guarantee ," inter alia, that they would not be "forced to go
on strike," and that they would "not be replaced during a
strike" and would have their "jobs back when the strike is
over." io
In the context of Respondent's manifest hostility to the
representation of the recreation aides and the social service
employee by the Union, Administrator Kaye's statement to
the captive audience employees that there had been a lack
10 See G.C. Exh. 9-B. The findings above are based on a composite of the
credited testimony of Faust, Bellantonio , and May, and on admissions by
Kaye and Kallen which 1 credit to this extent
SMITHTOWN NURSING HOME
of communication between them, and his invitation to the
employees to air their grievances and complaints, clearly
conveyed the intended message that the employees did not
need the Union, and the implied promise that if they voted
against union representation at the Board election, Respon-
dent would satisfactorily resolve their grievances. In Ring
Metals Company,11 the Board said the following in respect
to like conduct by an employer:
where . . . an employer who has not previously had a
practice of soliciting employee complaints, institutes
such a practice to coincide with an organizational
campaign, the employer has engaged in improper
interference with his employees' freedom of choice in
violation of Section 8(a)(1).
There is no evidence that Respondent previously held
meetings with the recreation aides and the social service
employee for the purpose of discussing employee com-
plaints, and there are indications in the record that it had
not. Under the circumstances, I find that, by Kaye's
solicitation of employee grievances and his implied promise
to rectify them, Respondent engaged in unfair labor
practices within the meaning of Section 8(a)(1) of the Act.12
A like promise of better wages clearly was conveyed to
the employees by Kaye when he told them that the wage
rate which they were receiving was low and that while he
could make no promises, he believed that they "should have
an increase in salary." Sinularly, Kaye's remarks to the
employees about Respondent's new personnel policy which
would apply to them "if there was no Union," whose
contents he assertedly could not legally reveal, but which
"would make things better" and which the employees
would "appreciate" when it was made available to them
upon the Union's defeat at the Board election, subtly, but
nevertheless clearly, conveyed a promise of better employ-
ment conditions as a reward if the employees voted against
union representation. In the context of Respondent's open
opposition to the Union, and Kaye's admission that the
purpose of the meetings with the employees was to
persuade them "to vote for management," it is obvious that
these promises were made to induce these employees to
abandon their support of the Union and thus interfered
with the employees "freedom of choice" guaranteed in
Section 7 of the Act. I therefore find that, by these
statements, Respondent engaged in further unfair labor
practices within the meaning of Section 8(a)(1) of the Act.
In his efforts to persuade these employees "to vote for
management," Kaye utilized both the "carrot" and the
"stick" techniques. Thus, in addition to the promises found
above, Kaye also warned his captive audience employees
that, if they designated the Union as their representative, it
would not necessarily bring about their desired improve-
ments in wages and working conditions, for unlike his
previous negotiation with the Union, his approach to
negotiations would be different, he was going to "really
bargain," and "make negotiations difficult," and pro-
" 198 NLRB 1020(1972)
12 McMullen Corporation, d/b/a Briarwood Hilton, 222 NLRB 986 (1976)
13 The findings above are based on the credited testimony of recreation
aides Faust, Bellantonio , Race , and May, and on that of Kaye to the extent
that it accords with their testimony Kaye admitted during his cross-
27
longed, and that if this resulted in a strike, "so be it."
Moreover, by the distribution of the leaflet in evidence as
General Counsel's Exhibit 9-B, Kaye also subtly warned
that, in the event of a strike, employees who struck would be
replaced and would not have their jobs back when the strike
ended. I find that by these statements and the said leaflet,
Kaye artfully threatened that, if the Union won the
election, Respondent would not, as required by the Act,
negotiate expeditiously and in good faith with a view to
reaching prompt agreement with the Union, and that he
would permanently replace them if they struck in protest
over the prolonged negotiations. I find that by these threats
Respondent interfered with, restrained, and coerced em-
ployees in the exercise of their rights under the Act, and
that it further violated Section 8(a)(1).
2. The offer to deal and contract directly with
the employees
At one of Kaye's captive audience meetings with the
recreation aides and the social service employee, Linda
Thal, one of the aides asked Kaye whether the employees
could have their own contract with Respondent without the
Union, and she offered to bring in such a contract which
would be agreeable to the other recreation aides. Kaye
responded that she should bring it in and he would look it
over. Kaye also offered to have the said contract with the
employees drafted by Respondent's attorney, but Thai
rejected his offer and stated that she preferred to have it
prepared by a lawyer friend of her family. At the next
meeting of the employees called by Kaye, he announced
that he had been advised by counsel that Respondent could
not legally contract directly with the employees during the
Union's organizational campaign.13
At the time that Kaye agreed to consider an individual
employment contract with the recreation aides and the
social service employee, he had knowledge, contrary to the
disclaimer in this mailgram to the Union, that the Union
represented a majority of the recreation aides and the social
service employee unit, for, as previously noted, when Union
Organizer Du Breuil demanded recognition of the Union,
she was accompanied by 6 of the aides and by the social
service employee, a clear majority of the 11 employees in
the unit. Bargaining by an employer directly with his
employees when a majority of them have designated a labor
organization to represent them for the purposes of collec-
tive bargaining violates employees' Section 7 rights. More-
over, an employer is not relieved of his obligation to deal
exclusively with his employees' designated representative
merely because the employees ask that their designation be
disregarded.i4
Respondent contends that this violation of the Act
should be overlooked because "any damage to the employ-
ees' free choice which may have been caused . . . was
effectively neutralized by the disclaimer made by top
examination that he offered to have Respondent's counsel draft the proposed
direct contract with the employees
14 Medo Photo Supply Corporation v. N L R B, 321 U.S 678, 684-685, 687
(1944)
28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
management at the ensuing meeting prior to the elec-
tion."15 I reject this contention as without merit for the
record clearly discloses that unit employees did not attend
all of Respondent's captive audience meetings, and that
some of them did not hear Respondent's belated "disclaim-
er." 16 Accordingly, inasmuch as Respondent's agreement
to consider a direct contract with the unit employees
without the Union tended to denigrate, demean, and
dissipate the Union's status as the majority representative
of the employees, I find that, by the offer to draw up and to
consider such a direct contract with the unit employees,
Respondent further trenched and impinged on its employ-
ees' Section 7 rights and violated Section 8(a)(1) of the
Act.17
3. The granting of wage increases prior to the
Board election
In the weeks immediately following the commencement
of union organization on December 4, 1974, and the
Union's request for recognition on December 11, 1974, and
before the Board election on February 28, 1975, Respon-
dent gave unusually large wage increases to 5 of the 11
employees in the appropriate unit for which recognition
was sought. Helene Race and Linda Thal, both of whom
had received a wage increase of 10 cents an hour less than I
month earlier, were given additional raises of 65 cents an
hour to $3.25 in their pay on December 20, 1974, and
January 3, 1975, respectively; Nancy Bellantomo was
raised from $2.50 to $3 an hour in her pay on December 20,
1974; Marilyn Suspenski was raised 75 cents an hour from
$2.50 to $3.25 in her pay on December 20, 1974; and Diane
Castiglia, the social service employee who had received a
35-cent increase to $3.60 an hour as of November 13, 1974,
was given an additional increase to $3.75 an hour as of
January 1, 1975.
It is by now well established that the granting of wage
increases during a union organizational campaign to induce
employees to vote against union representation interferes
with, restrains, and coerces employees in the exercise of
rights guaranteed by Section 7 of the Act and violates
Section 8(a)(I).18 Respondent has advanced a number of
reasons in support of its contention that the wage increases
which it gave to the above-named employees neither
violated the Act nor interfered with the conduct of the
Board election. As explicated below, I regard Respondent's
contention to be without merit and I conclude that the
raises were given for the purposes of inducing employees to
vote against the Union at the Board election.
According to Administrator Kaye, Respondent has a
wage policy for its recreation aides which admittedly is
"very vague." Kaye testified that aides are hired at "the
lowest scale," $2.50 an hour, that at the end of between 60
and 90 days of employment, there is a review of their wage
15 Respondent's brief
16 Thus, the record discloses, for example , that Linda Thal who proposed
the individual employment contract with the Respondent attended only the
one meeting at which she made the proposal and did not attend the ensuing
meeting at which the disclaimer was made Similarly , Diane Castigha, the
social service employee attended only two or three of the Respondent's
meetings, and Barbara May and Helene Race credibly testified that after the
meeting at which an individual employment contract with Respondent was
proposed , they never heard the subject of such a contract discussed again
rates,19 and after that, there is a further review between 5
and 7 months "from the date of the last increase ." However,
contrary to Kaye's testimony regarding the said wage
review policy, the testimony of Respondent's witness,
Payroll Custodian Anne O'Hare, regarding the wage
increases which had been given to the recreation aides
clearly disclosed that the time intervals between hiring and
raises for newly hired aides, and between raises for
employees no longer on probation, followed no fixed time
patterns. Kaye testified that "a usual increase" is "some-
thing like 25 to 35 cents an hour," and that "50 cents an
hour is a big increase." The raises given to the above-named
employees clearly did not conform to the alleged wage
review policy. In the first place, the amounts of the raises
given to Race (65 cents), Suspenski (75 cents), Bellantomo
(50 cents), and Thal (65 cents) obviously were far greater
than the 25 cents to 35 cents which Kaye testified was usual.
Respondent offered no explanation as to why raises in these
unusually large amounts were given. Moreover, the timing
of several of these raises clearly did not accord with the
wage review policy as explicated by Kaye. Thus, contrary
to the asserted policy of wage review within 5 to 7 months
"from the date of the last increase," Race and Thal were
given their unusually large raises about 1 month after their
last increase, and Castiglia was given her raise less than 2
months after her previous raise in pay. I conclude from all
the foregoing that no credence can be given to Kaye's
testimony regarding the Respondent's policy of periodic
wage reviews, other than that it admittedly was "very
vague."
Respondent's brief in effect contends that the raises given
to the above-named employees prior to the Board election
did not violate the Act or interfere with the conduct of the
election, inter alia, because three of them had expressed
dissatisfaction with their rates of pay.20 Such dissatisfaction
clearly was not limited to the above-named employees, for
it is apparent from the record that all of the recreation aides
and the social service employee who signed union authon-
zation cards did so, in part, with the hope of thereby
improving their wage rates and other conditions of employ-
ment. This did not, however, justify Respondent's granting
wage increases during the pendency of the Union's organi-
zational campaign other than those which would have been
made in the normal course of business, absent the Union's
campaign. It obviously could not justify the granting of
exceptionally large wage increases to induce employees to
vote against the Union at the Board election.21
Respondent further contends that the January 1, 1975,
raise which it gave to Castiglia less than 2 months after her
last increase in pay did not violate the Act because it was
given to her in fulfillment of an agreement made to her
when she was hired on September 24, 1973. I place no
credence in the testimony of Kaye regarding this alleged
17 Medo Photo Supply Corporation v. N L R B, supra
18 N L R B v Exchange Parts Company, 375 U S 405 (1964)
19 According to the personnel policy of the Respondent in effect when the
Union began its organizational campaign , newly hired employees serve a
probationary period of 60 days from the date of hinng See G C Exh 15, par
4. 20
Race , Thal, and Suspenski . Suspenski had threatened to resign on
December 22, 1974, because of "insufficient wages ." (Resp Exh. 14.)
21 N. L R B v Exchange Parts Co, supra
SMITHTOWN NURSING HOME 29
agreement , and I consider his self-serving memorandum
dated October 28, 1974, regarding it, as a predated
fabrication created for the purpose of this hearing.22 I base
these conclusions on the following considerations. Accord-
ing to three other memoranda in evidence, Castigha was
placed on full-time status at $3.25 an hour on May 10, 1974;
on November 19, 1974, she was given an increase of 35
cents an hour "as of November 13, 1974;" and on January
1, 1975, less than 2 months later, she was given the
additional increase of 15 cents which allegedly violated the
Act. None of the Respondent's three memoranda which
recorded these wage increases contain any reference to any
promise of wage increases made to Castiglia when she was
hired.23 Kaye's rejected memorandum, although subpenaed
by the General Counsel, was not produced by Respondent
until the last day of the hearing when Kaye, Respondent's
last witness , was testifying. The memorandum significantly
did not come from Castiglia's personnel file, but it rather
allegedly was found belatedly during a search "in a file of
some personal correspondence" which Kaye had left at
Respondent's Nursing Home. According to Kaye, the
unfulfilled agreement pursuant to which he assertedly gave
raises to Castiglia on November 19, 1974, and again on
January 1, 1975, was made to her by Kenneth Kallen,
Respondent's son. Although Kallen was present throughout
most of the hearing in this case, and he testified for the
General Counsel as a witness under Rule 43(b) of Rules of
Civil Procedure for the United States District Courts, he
was not called by Respondent to testify, and he gave no
testimony regarding any such agreement when Castiglia
was hired to give her raises. Thus, Kaye's rejected self-
serving memorandum and his testimony regarding the said
alleged agreement are pure hearsay, and I accord them no
probative value. Moreover, Castigha, a witness for Respon-
dent, did not testify that any agreement about raises was
made to her by Kallen when she was hired. Her only
testimony about a promise to a raise referred to one
allegedly made to her by Kaye in November 1974, when she
received a raise of 35 cents an hour. She testified in this
respect on cross-examination that in October or November
1974, when she asked Kaye for a raise of 50 cents an hour,
Kaye told her that he could only give her 35 cents and that
"he would try to get" her the rest "by the end of the year,"
but that "he could not guarantee that the Kallens would
give me the 15 cents."24 In the light of all the foregoing,
including the absence of any reference to a prior promise in
the memorandum granting Castiglia a 15-cent raise as of
January 1, 1975, 1 reject as without merit Respondent's
contention that the raise given to Castiglia at that time was
made in fulfillment of a prior agreement.
Respondent finally contends that the increases in wage
rates given to Race and Suspenski could not have been
motivated by antiunion considerations because they were
approved on December 10, 1974, the day before the Union
requested recognition. In support of this contention,
Respondent offered into evidence two memoranda signed
by Kaye dated on that date which granted raises to Race
and Suspenski "as of December 11, 1974." 25 I find no merit
in this contention because I am persuaded by the record
that the Respondent then had knowledge of the Union's
organizational campaign which began on December 4,
1974.26
Viewed in the light of Respondent's determined cam-
paign to defeat the Union at the Board election, the timing
of the wage increases to the five employees in the appropri-
ate unit immediately after the commencement of the
Union' s organizational campaign, the absence of any
specific wage review policy which required the increases to
be given prior to the Board election, the short time interval
of some of these raises since the previous ones, and the
unusually large amounts of the increases, I conclude that
they were given for the purpose of inducing Respondent's
employees to vote against union representation at the
Board election.
That conclusion is further supported by the circumstanc-
es surrounding the raise given by Kaye to Bellantonio on
December 18, 1974, retroactive to December 11, 1974.
Bellantonio was hired by Respondent on August 7, 1974.
When she was hired, Bellantonio was told by Supervisor
Sue Montenegro that her probation period would be 3
months. In November 1974, when the 3 months elapsed,
Bellantonio asked Montenegro for a raise, but she was told
by Montenegro that her prior statement regarding the
length of the probation period had been erroneous, and that
the period was 6 months. Montenegro told Bellantomo to
"come back" for her raise at the conclusion of the
additional 3 months.27 Following her conversation with
Montenegro, Bellantonio did not thereafter ask for a raise
before one was given to her on December 18, 1974. On that
date approximately 2 months before Bellantomo was
entitled to a raise according to Montenegro's statement to
her, and I week after Bellantonio had accompanied Union
Organizer Du Breuil into Kaye's office when recognition of
the Union was demanded, Kaye called Bellantonio into one
of the empty rooms at Respondent's Lodge and told her
that she was going to get a raise in pay with her next
paycheck. According to Bellantonio 's credited testimony,
she told Kaye that she thought that she was required to wait
6 months before she was entitled to a raise , and she asked
him whether, in the light of the Union's recognition
demand, the raise was legal. Kaye instructed Bellantomo
not to tell anybody about it, and he said that if anyone
asked him why she was given the raise, he would say that
her probation period had just ended. Kaye also told
Bellantonio that he had cleared her raise "through the
N.L.R.B." On that same day, Kaye signed a memorandum
raising Bellantonio's pay from $2.50 to $3 an hour retroac-
tive to the week ending on the previous day, December 17,
1974.28
22 Respondent 's Rejected Exh 15
23 G C. Exhs I8-A, 18-B , and 18-D
24 In view of her testimony quoted above , I do not credit Casugha's
testimony on direct examination that her later I5-cent raise "had been
prearranged "
25 Resp Exhs 12 and 13
26 Race signed her union authorization card on December 4, 1974 (G C
Exh. 4-E) Suspenski signed hers on December 9, 1974 (G C Exh 4-H)
Thus, both of these employees signed their union cards before Kaye
approved the unusually large raises which they were given.
27 The findings above are based on Bellantomo's uncontroverted and
credited testimony Supervisor Sue Montenegro was not called by Respon-
dent to testify, and no explanation was offered for the failure to do so
28 See G C Exh 19 Kaye admitted that he had a conversation with
(Continued)
30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I conclude from all the foregoing, including Respondent's
campaign to defeat the Union at the Board election, and
the timing of the raise to Bellantonio on the day after
Respondent rejected the Union's recognition requests and
the Union filed its petition for certification, that Respon-
dent gave this raise to Bellantomo for the purpose of
inducing her to withdraw her support of the Union and to
vote against the Union at the election. I further conclude
that by this raise and by the similarly motivated raises to
the other above-named employees, Respondent engaged in
unfair labor practices within the meaning of Section 8(a)(1)
of the Act.29
4. The withholding of wage increases
Administrator Kaye admitted during cross-examination
that before the Board election, he also had withheld raises
from some of the unit employees "because of the advent of
the Union organizing drive." 30 It is by now well established
that the withholding from employees of wages or other
benefits which otherwise would have been given in the
normal course of business, because of the pendency of a
union organizational campaign, representation proceeding,
or other union related considerations, impinges on employ-
ees' rights under the Act and violates Section 8(a)(1).31 In
the light of Kaye's admission, I therefore conclude that by
withholding pay raises from employees because of the
Union's organizing drive, Respondent further violated
Section 8(a)(1) of the Act.
5. The granting of wage increases and other
benefits after the Board election
As previously noted, although the Union had signed
authorization cards from 8 of the 11 employees in the unit
when it requested recognition, it received only four votes at
the Board election which was conducted on February 28,
1975. The Union thereafter filed timely objections on
March 7, 1975, to Respondent's conduct affecting the
results of the election, and on March 10, 1975, it filed the
unfair labor practice charge against Respondent on which
the instant complaint is based. Notwithstanding the pen-
dency of the said objections and charge, and the possibility
that a rerun election might result, Respondent thereafter
gave additional wage increases to some of the unit
employees, and increased the fringe benefits for all of them.
In this regard, the record discloses as follows:
After the election, Bellantomo and May, prompted by
Kaye's subtle unlawful promise to improve wages if the
Bellantonio about her raise in pay in an empty room at the Respondent's
Lodge, but he testified that the date of this conversation was either
December 12 or 13, 1974. Kaye also testified that he had approved this raise
before the Union 's recognition request on December 11, 1974. In the light of
Kaye's memorandum granting Bellantomo's raise which is dated December
18, 1974, and which made the raise retroactive to December 11, 1974, 1 place
no credence in Kaye's testimony that he approved this raise prior to the date
of the recognition demand. I note in this regard that the Respondent's brief
now admits that Bellantonio's raise was granted on December 18, 1974.
Moreover, as previously indicated, I regard Kaye's testimony as frequently
evasive and unreliable, and occasionally self-contradictory, and I therefore
credit his version of this conversation only to the extent that it accords with
that of Bellantonio credited above or constitutes an admission against
interest.
29 N.L.R B. v. Exchange Parts Co., supra
Union was defeated at the Board election, asked Kaye on
several occasions for a raise. Kaye at first told them that
because unfair labor practice charges had been filed by the
Union against Respondent, he "could not put through an
increase . . . immediately until this was resolved." How-
ever, after consultation with counsel, Kaye later approved a
25-cent-an-hour raise for both Bellantomo and May on
April 2, 1975. As previously noted, Bellantonio had
received a 50-cent raise only 3-1/2 months earlier on
December 18, 1975, and May had received one on July 10,
1974. Respondent offered no evidence as to why these
employees were either entitled to or given the additional
raises on April 2, 1975. There is no evidence that these
raises were required or imperative while the objections to
the conduct of the election were pending resolution and the
possibility of a rerun election existed. I conclude from the
foregoing that the Respondent granted these raises to
Bellantonio and May in fulfillment of its unlawful preelec-
tion promise to the unit employees to correct their inade-
quate wage scale if the Union was defeated. I therefore find
that Respondent thereby further violated Section 8(a)(1) of
the Act 32
As found above, during his preelection meetings with the
unit employees, Kaye subtly and unlawfully also promised
them that if the Union was defeated at the Board election, a
new personnel policy for unrepresented employees which
contained very good benefits would be applied to them. At
that time, Castiglia, the social service employee, was the
only employee in the unit who had Blue Cross-Blue Shield
coverage provided and paid for by Respondent. The new
personnel policy to which Kaye referred in his meetings
with the unit employees admittedly was adopted by
Respondent during the pendency of the Union's represen-
tation petition. It was put into effect on January 2, 1975, for
all Respondent's unrepresented employees with the excep-
tion of those in the unit for which the Union sought
recognition. The new personnel policies provided new and
increased fringe benefits to the employees to whom it
applied. It provided, inter alia, an additional paid holiday
on the employee's birthday, one more personal day off each
year, extra pay (time and a half) when an employee is
required to work on a holiday and another day off for the
holiday which was missed, an extra day of vacation if a
holiday occurs during an employee's vacation, 2 additional
days of paid sick leave each year and earlier eligibility for
paid sick leave, a new paid leave of absence for marriage,
paternity, and bereavement, a new major medical health
insurance plan, Blue Cross-Blue Shield coverage paid for
30 On redirect examination , Kaye attempted to repudiate the foregoing
admission, and he denied that "any wage increase that would have been
granted in the normal course of business [was ] delayed during the election
campaign ." I place no credence in Kaye's said denial because contrary
thereto, in Kaye's affidavit given to a Board agent , Kaye admitted that he
had withheld pay raises from Faust and Birkbeck, two of the recreation
aides, inter aha, because, "I decided to hold [up ] increases with the advent of
the Union organizing drive."
31 Florida Steel Corporation, 220 NLRB 1201 (1975) and the cases cited in
fn. 10; National Utility Products Company, 220 NLRB 64 (1975).
32 Westminster Community Hospital, Inc., 221 NLRB 185 (1975). In the
light of this conclusion, I deem it unnecessary to also determine whether the
raises given to other unit employees shortly after the election further violated
the Act.
SMITHTOWN NURSING HOME
by Respondent for all unrepresented employees, and a new
combination pension and profit-sharing plan.33 After the
Union's defeat at the Board election, Respondent provided
these new fringe benefits to the unit employees. There is no
evidence that the revision of Respondent's personnel
policies was required either to maintain operations or the
retention of personnel. It is therefore quite apparent in the
context of Respondent's vigorous campaign to defeat the
Union at the Board election that, by applying the new
policies and increased fringe benefits to the unit employees
while the Union's objections to the conduct of the election
were pending resolution and the possibility of a rerun
election existed, Respondent was merely rewarding the said
employees for defeating the Union at the election and
fulfilling the unlawful promise which Kaye made to the
employees prior to the election. Accordingly, I find that
Respondent thereby further violated Section 8(a)(1) of the
ACt.34
E. The Refusal To Bargain With the Union
As found above, on December 11, 1974, when the Union
demanded recognition as the representative of the recre-
ation aides and the social service employee, it represented a
majority of 8 of the 11 employees in the said unit which
admittedly is appropriate for the purposes of collective
bargaining. Respondent then knew that the Union repre-
sented a majority of the employees in the said unit for seven
of the employees had accompanied Union Organizer Du
Breuil when she made her two requests for recognition.
Notwithstanding that knowledge, Respondent rejected the
Union's requests for recognition on the basis of a professed
doubt of the Union's majority status, it suggested to the
Union that it should utilize the Board's procedures, and it
then embarked on a determined, vigorous campaign to
dissipate and destroy the Union's majority status prior to a
Board election. As found above, coincident with the
commencement of the Union's organizing campaign, Re-
spondent gave 5 of the 11 employees in the appropriate unit
unusually large wage increases for the purpose of inducing
employees to withdraw their support of the Union. In
addition, in furtherance of its objective of destroying the
Union's majority status, Respondent thereafter conducted
a series of six captive audience meetings with the unit
employees during the course of which Respondent engaged
in numerous violations of Section 8(a)(1) of the Act. During
the said meetings, Administrator Kaye solicited employees
to voice their grievances and promised to resolve them, he
admitted that the employees' wage rates were too low and
promised to review and increase them "when the [Union]
matter was resolved," he promised to apply a new person-
nel policy to the unit employees which contained many new
and improved benefits if the Union was defeated at the
Board election, he agreed to consider a contract directly
with the unit employees without the Union and he offered
to have Respondent's attorney draft the contract, he in
effect threatened that if the Union won the election it would
33 The Respondent's prior personnel policy did not provide for either a
pension or profit-sharing.
34 Westminster Community Hospital, Inc, supra.
35 N. L. R. B. v. Gissel Packing Co., Inc., 395 U.S. 575 (1969).
36 Linden Lumber Division, Summer & Co v. N.LR.B., 419 U.S. 301
(1974).
31
be an exercise in futility on the part of the employees
because Respondent would not, as required by the Act,
negotiate expeditiously and in good faith with a view to
reaching prompt agreement, and he further threatened that
if the employees struck in protest over the prolonged
negotiations, they would be permanently replaced and
would not get their jobs back when the strike ended. The
foregoing conduct of Respondent quite evidently achieved
its intended objective, for at the Board election the Union
received only 4 of the 11 votes cast. It is thus obvious that at
least four of the employees who signed applications for
membership in the Union and authorizations for the Union
to represent them voted against the Union at the election.
As found above, after the Board election Respondent
continued to make certain that in the event of a rerun
election the employees would again "vote for manage-
ment." Thus, notwithstanding the pendency of the Union's
objections to the conduct of the election and the possibility
that a rerun election might result therefrom, Respondent
thereafter continued to violate Section 8(ax1) of the Act by
rewarding several unit employees with the wage increases
promised prior to the election, and by applying to all of
them the additional and improved fringe benefits which
Kaye had promised in his captive audience meetings with
the employees.
Respondent's foregoing extensive, pervasive, and unlaw-
ful conduct has not only undermined and destroyed the
Union's majority support which it enjoyed when recogni-
tion was requested, but its lingering, coercive, and restrain-
ing effects has also made the possibility of a fair rerun
election virtually impossible. Under these circumstances,
the authorization cards signed by the unit employees are
now the most reliable measure of their desires on the issue
of representation by the Union, and the policies of the Act
require that Respondent be ordered to bargain with the
Union as the exclusive representative of the unit employ-
ees.35 As the Supreme Court has held, an employer has a
right to a Board election so long as he does not impede the
election process 36 However, when he so obstructs the
process, he forfeits his right to an election and must bargain
with the Union on the basis of other clear indications of the
employees' desires, and his bargaining obligation com-
mences as of the time that he embarked on a clear course of
unlawful conduct or engaged in sufficient unfair labor
practices which undermine the Union's majority status and
subverts the Board's election process.37
In the instant case, Respondent embarked on its cam-
paign to destroy the Union's support among the unit
employees on December 10, 1974, when it gave substantial
and unusually large increases to several of the unit
employees to induce them to withdraw their support from
the Union. However, inasmuch as the Union's recognition
demand was not made until December 11, 1974, I conclude
that Respondent should be required to recognize and
bargain with the Union as of December 11, 1974.38 I
therefore find that as of that date, Respondent has engaged
in a refusal to bargain with the representative of his
37 Trading Port, Inc., 219 NLRB 298 (1975), Baker Machine & Gear, Inc,
220 NLRB 194(1975).
38 Trading Port, Inc., supra.
32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees in a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the Act, and
has engaged in unfair labor practices within the meaning of
Section 8(a)(5) and (1) of the Act.
IV. REPORT AND RECOMMENDATION ON THE UNION'S
OBJECTIONS TO THE ELECTION IN CASE 29 -RC-2860
As previously noted, on August 25, 1975, the Regional
Director for Region 29 of the Board issued an order
consolidating Case 29-CA-4252 with Case 29-RC-2860,
and he therein referred to me for hearing, ruling and
resolution the Union 's objections to the conduct of the
Board election which occurred on February 28, 1975. The
objections thus referred to me were as follows:
2. On or about February 20, 1975 the Employer
promised its employees individual contracts and in-
creases in wages and benefits if they opposed District
1199 in the election . Such promises constituted an
interference with the free exercise of the employees'
rights under Section 7 of the Act.
4. On or about December 17, 1974 the Employer
granted wage increases to three employees in order to
discourage their membership in a labor organization.
I have found above that during the six captive audience
meetings which Respondent conducted for the purpose of
inducing the recreation aides and the social service employ-
ee "to vote for management," Administrator Kaye solicited
and promised to resolve employee grievances , promised to
increase the admittedly low wage rates of these employees,
promised to give them new and improved fringe benefits,
and agreed to consider a contract directly with the said
employees without the Union, if the Union was defeated at
the Board election . I therefore find merit in the Union's
Objection 2 to the conduct of the election. I have also found
above that commencing with December 10, 1974, and
thereafter before the Board election on February 28, 1975,
Respondent gave substantial and unusually large increases
to 5 of the I I employees in the appropriate unit for which
the Union sought recognition, for the purpose of discourag-
ing union membership and support. I therefore also fmd
merit in the Union's Objection 4. I accordingly recommend
that the election which was held on February 28, 1975, be
set aside.
In Case 29-CA-4252, I have found above that, coinci-
dent with the Union's organizational campaign , Respon-
dent engaged in extensive and pervasive unfair labor
practices to undermine and dissipate the Union's majority
status among the unit employees , and as noted , infra, I
recommend the issuance of an order requiring Respondent
to recognize and bargain with the Union as the exclusive
bargaining representative of the employees in the appropri-
ate unit found above . In view of the said findings and
recommended Order in Case 29-CA-4252, I further recom-
mend that Case 29-RC-2860 be remanded to the Board for
dismissal.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations of
Respondent described in section I, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
VI. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices , I will recommend that he cease and
desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act.
In the light of Respondent's extensive and pervasive
unfair labor practices which were calculated to and have
destroyed the Union's previously enjoyed majority status,
and since I am persuaded that the application of traditional
remedies for the said unfair labor practices cannot elimi-
nate the lingering and restraining effects thereof and make
the holding of a fair and reliable rerun election virtually
impossible, I regard the employees' signed authorization
cards as a more reliable measure of their representation
desires . I will therefore recommend the issuance of an order
requiring the Respondent to recognize and bargain with the
Union as the exclusive collective-bargaining representative
of the appropriate unit of recreation aides and the social
service employee.39
Upon the basis of the foregoing findings of fact, and upon
the entire record in the case , I make the following:
CONCLUSIONS OF LAW
1. Respondent Herbert Kallen d/b/a Smithtown Nurs-
ing Home, Smithtown Senior Home, and Smithtown
Lodge , is an employer engaged in commerce and in
operations affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
2. District 1199, National Union of Hospital and
Health Care Employees, Retail, Wholesale and Depart-
ment Store Union, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. By soliciting and promising to resolve employees'
grievances and by promising and granting wage increases,
all for the purpose of undermining and dissipating employ-
ees' support of the above-named Union, by withholding
wage increases from employees because of the pendency of
the Union 's organizing campaign, by agreeing to consider a
contract directly with employees without the Union and to
supply an attorney to draft the said contract, and by
threatening employees that if the Union won the election, it
would not negotiate in good faith with a view of reaching
prompt agreement and would permanently replace them if
they struck in protest over the prolonged negotiations,
Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(1) of the Act.
39 N.L.R B v. Gissel Packing Co., supra; Trading Port, Inc, supra;
Westminster Community Hospital, Inc, supra
SMITHTOWN NURSING HOME 33
4. The following employees constitute a unit appropriate
for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
All recreation aides and the social service employee
employed by the Respondent at his Smithtown, New
York, facilities, excluding all other employees, guards,
watchmen and supervisors as defined by the Act.
5. On December 11, 1974, and at all other times
material herein, the above-named Union represented a
majority of the employees in the aforesaid unit for the
purposes of collective bargaining with respect to rates of
pay, wages, hours of employment, and other terms and
conditions of employment.
6. By refusing on and after December 11, 1974, to
recognize and bargain with the above-named Union as the
representative of the employees in the aforesaid unit, and
by engaging in the conduct described in Conclusion of Law
3 above, Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8(a)(5)
and (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in this case, I
hereby issue the following recommended:
ORDER 40
Respondent Herbert Kallen, d/b/a Smithtown Nursing
Home, Smithtown Senior Home, and Smithtown Lodge, his
agents , successors , and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in or support of District
1199, National Union of Hospital and Health Care Em-
ployees, Retail, Wholesale and Department Store Union,
AFL-CIO, or any other labor organization, by soliciting
and promising to resolve employee grievances, by promis-
ing and granting wage increases and other benefits, and by
offering to contract directly with the employees.
(b) Threatening employees with a refusal to bargain in
good faith with the above-named or any other labor
organization, and with any other reprisals, to discourage
union membership and support.
(c) Withholding wage increases from employees because
of the pendency of union organizational activities.
(d) Refusing to recognize and bargain with District 1199,
National Union of Hospital and Health Care Employees,
Retail , Wholesale and Department Store Union, AFL-
CIO, as the exclusive collective-bargaining representative
of the employees in the appropriate unit described below.
The appropriate unit is:
All recreation aides and the social service employee
employed by the Respondent at his Smithtown, New
York, facilities, excluding all other employees, guards,
watchmen and supervisors as defined by the Act.
(e) In any other manner interfering with, restraining, or
coercing employees in the exercise of their right to self-
organization, to form labor organizations, to join or assist
District 1199, National Union of Hospital and Health Care
Employees, Retail, Wholesale and Department Store
Union, AFL-CIO, or any other labor organization, to
bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or
protection, or to refrain from engaging in such activities,
except to the extent that such rights may be affected by an
agreement requiring membership in a labor organization as
a condition of employment, as authorized by Section
8(a)(3) of the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Upon request, bargain collectively with District 1199,'
National Union of Hospital and Health Care Employees,
Retail, Wholesale and Department Store Union, AFL-
CIO, as the exclusive collective-bargaining representative
of the employees in the appropriate unit described above,
and if an understanding is reached, embody such under-
standing in a signed agreement.
(b) Post at its three facilities located in Smithtown, New
York, copies of the notice marked "Appendix." 41 Copies of
the said notice, on forms provided by the Regional Director
for Region 29, after being duly signed by Respondent, shall
be posted by him for 60 consecutive days thereafter, in all
conspicuous places, where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by
Respondent to insure that the said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 29 in writing
within 20 days from the date of this Order, what steps have
been taken to comply herewith.
4U In the event no exceptions are filed as provided by Sec 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec 102.48
of the Rules and Regulations , be adopted by the Board and become its
findings, conclusions , and Order, and all objections thereto shall be deemed
waived for all purposes.
41 In the event the Board's Order is enforced by a Judgment of the United
States Court of Appeals, the words in the notice reading "Posted by Order of
the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
I hereby notify my employees that:
I WILL NOT refuse to recognize or bargain with
District 1199, National Union of Hospital and Health
Care Employees, Retail , Wholesale and Department
Store Union, AFL-CIO , as the exclusive representative
of the employees in the bargaining unit described
below.
I WILL NOT discourage membership in or support of
the said District 1199, or any other labor organization,
by soliciting and promising to resolve employee griev-
ances, by promising and granting wage increases, or by
4
DECISIONS OF NATIONAL LABOR RELATIONS34
offering to contract directly with my employees.
I WILL NOT threaten employees with a refusal to
bargain in good faith with the above-named or any
other labor organization , or with any other reprisals to
discourage union membership and support.
I WILL NOT withhold wage increases from employees
because of the pendency of union organizational
activities.
I WILL NOT in any other manner interfere with,
restrain , or coerce my employees in the exercise of
rights guaranteed them by Section 7 of the National
Labor Relations Act.
I WILL, upon request, bargain collectively with the
said District 1199, as the exclusive bargaining represen-
tative of all the employees in the bargaining unit
described below with respect to rates of pay, wages,
BOARD
hours of employment, and other conditions of employ-
ment, and, if an understanding is reached, embody such
understanding in a written, signed agreement. The
bargaining unit is:
All recreation aides and the social service employ-
ee employed by me at my Smithtown, New York,
facilities, excluding all other employees, guards,
watchmen and supervisors as defined by the
National Labor Relations Act.
HERBERT KALLEN D/B/A
SMITHTOWN NURSING
HOME, SMITHTOWN SENIOR
HOME AND SMITHTOWN
LODGE