Springfield Jewish Nursing Home For The Aged, Inc

National Labor Relations Board - Board Decisions

Feb 21, 1989

292 N.L.R.B. 1266 (N.L.R.B. 1989)

1266 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Springfield Jewish Nursing Home for the Aged, Inc
and Professional and Health Care Division,
United Food and Commercial Workers Union,
Local 1459 , a/w United Food and Commercial
Workers International Union, AFL-CIO Cases
1-CA-25132, 1-CA-25356, and 1-RC-18926
February 21, 1989
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On August 19, 1988, Administrative Law Judge
Walter H Maloney issued the attached decision
The Respondent filed exceptions, a supporting
brief, and a motion for oral argument I The Gener-
al Counsel filed a brief in reply to the Respondent's
exceptions
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 4
i The Respondents motion is denied as the record exceptions and
briefs adequately present the issues and the positions of the parties
2 The Respondent has excepti,d to some of the judge s credibility find
ings The Board s established 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)
R e have carefully examined the record and find no basis foi reversing
the findings
In sec I(B) par 12 of his decision the judge incompletely quoted the
speech given by the Respondents administrator Howard Braverman
The words it is the law should follow the words give you the truth
in the first paragraph of the quoted speech The words by mail or
should follow the words return the form to me in the third paragraph
of the quoted speech
3 In adopting the judge s conclusion that the Respondent violated Sec
8(a)(1) of the Act by granting new health insurance benefits during the
course of an organizational campaign we do not rely as did the judge
on any presumption that increases granted during an organizing campaign
are unlawtul Rather we infer improper motive and interference with
employee Sec 7 rights from all the evidence presented and the Respond
ent s failure to present a persuasive business reason demonstrating that
the timing of the grant of benefits was governed by fai,tors other than the
union campaign Montgomery Ward & Co 288 NLRB 126 fn 6 (1988)
Member Johansen did not participate in Montgomery Ward and finds it
unnecessary to distinguish between the judge s statement that a grant of
benefits during an election campaign is presumptively unlawful unless the
employer can establish that the timing of its action was governed by fac
tors other than the election and the panel majority s inference based on
all the evidence and the Respondents failure to provide a persuasive
business reason for the grant of benefits He finds it unnecessary to rely
on the judge s additional statement that benefit increases in response to an
issue raised by a union raise more than a presumption
4 In his remedy the judge found it necessary to issue a broad order
requiring the Respondent to cease and desist from infringing by any
other means or in any other manner on rights guaranteed employees by
Sec 7 of the Act However we have considered this case in light of the
standards set forth in H,ckmott Foods 242 NLRB 1357 (1979) and have
decided that the broad remedial language is not warranted Accordingly
The judge found that the Respondent violated
Section 8(a)(1) of the Act, and engaged in objec
tionable conduct affecting the result of the election,
by granting wage increases to 12 to 28 nonbargain-
ing unit nurses prior to the election in order to in-
fluence bargaining unit employees and dissuade
them from supporting the Union The judge found
that the pay increases were designed to rectify in
ternal wage discrepancies whereby nurses with the
same amount of seniority were being paid different
wages Internal wage discrepancies among bargain-
ing unit employees had been raised by the Union as
a campaign issue The judge found that the Re
spondent's willingness to address this campaign
issue vis-a vis nonbargaining unit employees was
likely to, and in fact did, come to the attention of
the bargaining unit employees
We find that the record supports the Respond
ent's contention that the wage increase was granted
to the nurses in order to remain competitive with
similarly situated employers and to prevent certain
nurses from leaving the employ of the Respondent
due to dissatisfaction regarding the internal wage
discrepancies The Respondent's administrator testa
feed that the wage increase, as well as wage in
creases granted earlier in the year to other employ
ees, was the result of periodic wage surveys con-
ducted by the Respondent There was also uncon
tradicted testimony that the Respondent faces a
nursing shortage in its area of operation Under
these circumstances, we cannot find that the Re-
spondent increased the wages of nonunit employees
to discourage employees within the bargaining unit
from joining, supporting, or assisting the Union
Moreover, we note that the record contains no evi-
dence that the Respondent actively attempted to
disseminate to the bargaining unit employees the
news of the newly granted increase 5 Accordingly,
we shall dismiss the part of the complaint alleging
that the Respondent violated Section 8(a)(1) of the
Act by granting a wage increase to nonbargaining
unit employees We also find that the wage in
crease does not constitute objectionable conduct of
fecting the result of the election
we shall modify par 1(1) of the recommended Order to use the narrow
injunctive language in any like or related manner
We shall further modify pars 1(e) (f) and (g) of the recommended
Order to more closely reflect the violations found by the judge We have
also issued a new notice to conform to our Order
5 The judge did find that charge nurse Jeanne Molloy a recipient of
the wage increase was walking by a picket line when she was asked by
bargaining unit employee Darlene Murphy whether the nurses had re
ceived an increase Molloy responded affirmatively Murphy then asked
What about our raises? Molloy replied If it wasn t for you and the
Union you would have gotten one As discussed infra we find that
Molloy is neither a supervisor nor an agent of the Respondent and there
fore this incident does not constitute dissemination by the Respondent
292 NLRB No 138
SPRINGFIELD JEWISH NURSING HOME 1267
We also disagree with the judge 's finding that
charge nurse Jeanne Molloy is a supervisor within
the meaning of Section 2(11) of the Act or, alterna-
tively , an agent for the Respondent pursuant to
Einhorn Enterprises , 279 NLRB 576 (1986)
The judge acknowledged that Molloy , in her ca-
pacity as a charge nurse , has no authority to hire,
fire, or discipline employees assigned to her unit
The judge , however , based his finding of supervi-
sory status on Molloy 's daily assignment of patient-
care duties to employees in her unit , her instruc-
tions to them concerning patient care and convey-
ance of the Respondent 's policies in this regard,
her preparation of evaluations of the employees in
her unit , and the responsibilities , as stated in the
Respondent 's new employee manual , of a charge
nurse during a fire
The routine assignment and direction of employ
ees regarding patient care does not confer supervi-
sory status on a charge nurse American Geri-Care,
258 NLRB 1116, 1121 (1981 ), enfd 697 F 2d 56 (2d
Cir 1982), cert denied 461 U S 906 ( 1983), French
Hospital Medical Center , 254 NLRB 711, 713
(1981) Further , Molloy testified without contradic-
tion that the evaluations completed by her are not
used as a basis for either wage increases or discipli-
nary action In this context , the authority simply to
complete evaluations is an insufficient basis on
which to find supervisory status Passavant Health
Center, 284 NLRB 887 (1987) We are also not per
suaded that the responsibilities assigned to a charge
nurse during a fire factor significantly in the deter-
mination of supervisory status We conclude, ac-
cordingly , that Molloy is not a supervisor within
the meaning of Section 2(11) of the Act
We also disagree with the judge's alternative
conclusion that Molloy is an agent of the Respond-
ent Einhorn Enterprises, supra , relied on by the
judge , is inapposite In Einhorn , a nonsupervisory
clerical employee , who was treated as a confidante
by management , regularly relayed confidential in
formation from management to rank and file em-
ployees and also relayed to management employee
requests for raises Further , this employee, who
worked in the employer ' s office and had access to
payroll records , was frequently approached by
other employees with questions relating to policy
and personnel matters The Board found that under
these circumstances the employee in question acted
as a conduit for information between management
and employees such that the latter would reason
ably believe that the employee was reflecting com-
pany policy and speaking and acting for manage
ment The Board thus found the employee to be an
agent of the employer
In the instant case , however , there is no basis for
a finding that Molloy served as a conduit for infor
matron between the Respondent and its employees
Asside from the judge ' s finding that Molloy con-
veyed to the employees in her unit the Respond-
ent s policies relating to patient care , there is no
evidence in the record that Molloy ever relayed
confidential , personnel , or any other information
between management and employees Nor was
Molloy a confidante of management with access to
information such as payroll records It cannot be
concluded , therefore , that the Respondent's em
ployees would reasonably believe that Molloy
spoke on behalf of, and reflected the position of,
the Respondent 6 Accordingly, a finding of agency
is not supported by the facts of this case
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified and set forth in full below and
orders that the Respondent , Springfield Jewish
Nursing Home of the Aged , Inc, Springfield, Mas
sachusetts , its officers, agents , successors, and as
signs, shall
1 Cease and desist from
(a) Instructing employees to refrain from discuss-
ing union matters with other employees
(b) Threatening employees with the reduction or
loss of pension or other benefits if they vote to un-
ionize
(c) Establishing or maintaining an employee hot
line or by any other means soliciting grievances
with a view toward adjusting them
(d) Establishing or maintaining a new grievance
procedure in order to dissuade employees from
supporting unionization
(e) Discriminatorily promulgating new rules that
impede employee access to company bulletin
boards
(f) Discriminatorily promulgating new rules re
garding solicitation and distribution on company
premises
(g) Discriminatorily promulgating new rules that
limit access of employees to company premises
before and after shifts
(h) Enlarging health insurance coverage or im-
proving health insurance benefits in to dissuade em
ployees from supporting the Union, providing that
nothing herein shall be construed to require the
Respondent to reduce any wages or benefits that
6 The judge failed to rule on Objection 5 which alleged that supervi
sors told unit employees on several occasions that the unit employees did
not receive wage increases because of the Union However no party has
excepted to the judge s failure to address Objection 5
1268 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
are being paid or offered on the effective date of
this Order
(i) In any like or related manner interfering with,
restraining, or coercing employees in the exercise
of the rights guaranteed them by Section 7 of the
Act
2 Take the following affirmative action neces-
sary to effectuate the policies of the Act
(a) Rescind the provisions contained in its new
employee manual relating to bulletin boards, em-
ployee access to the Respondent's premises during
off-duty hours, and solicitation and distribution of
literature on Respondent's premises
(b) Post at its facility in Springfield, Massachu-
setts, copies of the attached notice marked Appen
dix "4 Copies of the notice, on forms provided by
the Regional Director for Region 1, after being
signed by the Respondent's authorized representa
tive, shall be posted by the Respondent immediate-
ly 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 Respondent
to ensure that the notices are not altered, defaced,
or covered by any other material
(c) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply
IT IS FURTHER ORDERED that Case 1-RC-18926
is severed from Cases 1-CA-25132 and 1-CA-
25356, and that Objections 3, 6, and 7 to the con
duct of the election filed in Case 1-RC-18926 are
sustained and the election is set aside, and that
Case 1-RC-18926 is remanded to the Regional Di-
rector for Region 1 for the purpose of conducting
another election at such time as he deems the cir
cumstances will permit the free choice of a bar
gaining agent
[Direction of Second Election omitted from pub-
lication ]
7 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 Nation
al 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
Section 7 of the Act gives employees these rights
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro
tection
To choose not to engage in any of these
protected concerted activities
WE WILL NOT instruct employees to refrain from
discussing union matters with other employees
WE WILL NOT threaten employees with the re-
duction or loss of pensions or other benefits if they
vote to unionize
WE WILL NOT establish or maintain an employee
"hot line" or, by any other means, solicit griev
ances with a view toward adjusting them
WE WILL NOT establish or maintain a new griev-
ance procedure in order to dissuade employees
from supporting unionization
WE WILL NOT discriminatorily promulgate new
rules impeding employee access to company bulle
tin boards
WE WILL NOT discriminatorily promulgate new
rules regarding solicitation and distribution on
company premises
WE WILL NOT discriminatorily promulgate new
rules that limit employee access to company prem
ises before or after shifts
WE WILL NOT enlarge health insurance coverage
or improve health insurance benefits to dissuade
employees from supporting the Union
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 rescind those provisions in the new
employee manual relating to employee use of bulle
tin boards, employee access to the Home during
off duty hours and solicitation and distribution of
literature at the Home
SPRINGFIELD JEWISH NURSING HOME
FOR THE AGED, INC
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
Michael T Fitzsimmons Esq, for the General Counsel
Robert L Dambrov Esq of Springfield, Massachusetts,
for the Respondent
Denise Perry, of Springfield Massachusetts, and David
Rome Esq of Boston Massachusetts, for the Charg
ing Party
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
SPRINGFIELD JEWISH NURSING HOME 1269
DECISION
STATEMENT OF THE CASE
WALTER H MALONEY Administrative Law Judge I
heard this case in Boston Massachusetts pursuant to a
consolidated complaint ' issued by the Regional Director
for Region 1, which alleges that the Respondent2 violat
ed Section 8(a)(1) of the Act The complaint was con
solidated with objections to the conduct of an election
which , with one exception parallel the allegations con
tamed in the complaint More specifically the amended
consolidated complaint alleges that , during the Goodyear3
period which ran from July 16 until October 30, 1987
the Respondent granted improved health insurance bene
fits established a new grievance procedure in the issu
ance of a new employee handbook and the establishment
of an employee hot line to solicit grievances increased
wages of certain nonunit employees to influence the atti
tude of bargaining unit employees , promulgated new
rules limiting employee access to the Employers prem
ices during off duty hours, established a discriminatorily
motivated , no solicitation policy and discriminatorily mo
tivated limitations on the use of company bulletin boards,
and threatened employees with the loss of pension bene
fits if they voted for union representation The amended
consolidated complaint also alleges that sometime after
the election , the Respondent instructed an employee to
stay out of trouble by saying nothing about the Union to
other employees The Respondent either denies that the
above recited events occurred or states that certain
changes in employee benefits and restrictions on employ
ee activities either were de mmimis were dictated by
' The principal docket entries in the complaint case are as follows
Charge in Case 1 -CA-25132 filed by Professional and Health Care Divi
lion United Food and Commercial Workers Union Local 1459 a/w
United Food and Commercial Workers International Union AFL-CIO
(the Union) against the Respondent on December 3 1987 amended
charge filed by the Union against the Respondent on January 11 1988
consolidated complaint issued by the Regional Director for Region I
against the Respondent on January 27 1988 Respondents answer filed
on February 5 1988 charge in Case 1 -CA-25356 filed by the Union
against the Respondent on March 15 1988 amended consolidated com
plaint issued by the Regional Director for Region I against the Respond
ent on April 29 1988 Respondents answer filed on May 10 1988 hear
mg held in Boston Massachusetts May 23 and 24 1988 briefs filed with
the me on or before July 18 1988 The principal docket entries in the
representation case are as follows representation petition filed by the
Union on July 16 1987 in Case 1 -RC-13306 seeking an election in a
unit composed of the Respondents full time and regular part time non
professional employees employed at its Springfield Massachusetts nursing
home Decision and Direction of Election issued by the Regional Direc
tor for Region I on September 17 1987 election conducted on October
30 1987 in which 60 votes were cast for the Union and 101 votes were
cast against the Union timely objections to the conduct of the election
were filed by the Union on November 5 and on November 6 1987 an
additional objection was filed 6 objections were withdrawn by the Union
and the remainder were referred by the Acting Regional Director on
January 4 1988 to a hearing before an administrative law judge in con
junction with the hearing on the outstanding complaint
2 Respondent admits and I find that it is a corporation that maintains
and operates a nursing home at Longmeadow Massachusetts During the
preceding calendar year it has derived gross income in excess of
$100 000 and has purchased directly from points and places located out
side the Commonwealth of Massachusetts goods valued in excess of
$5000 Accordingly the Respondent is an employer engaged in com
merce within the meaning of Sec 2 (2) (6) and (7) of the Act The Union
is a labor organization within the meaning of Section 2(5) of the Act
3 Goodyear Tire & Rubber Co 138 NLRB 453 (1962)
business reasons or were never implemented On these
contentions The issues were drawn 4
FINDINGS OF FACT
I JURISDICTION
Since 1912 the Respondent has operated a nursing
home in Springfield Massachusetts , where it provides so
called level 2 and level 3 medical , nursing and rehabili
tative services to the aged and infirm It has about 200
beds about 160 of which are devoted to patients requir
ing skilled care and 40 of which are devoted to patients
requiring intermediate care Respondent has about 200
nonprofessional bargaining unit employees and a large
number of nonunit employees including 28 nurses There
is no history of collective bargaining at this nursing
home
II UNFAIR LABOR PRACTICES AND OJECTIONABLE
CONDUCT ALLEGED
In May 1987 the Union began organizing the nonpro
fessional employees at the Home There is evidence that
at least one employee signed a union card as early as
May 7 and that the Respondent was aware of organizing
activity as early as May 8 However the drive did not
swing into full gear until June A representation petition
was filed on July 16
For a considerable period of time up to October 1
1987 Respondents employees had the option of obtain
mg medical and hospital insurance from either Blue
Cross Blue Shield or from a health maintenance organ[
zation (HMO) known as Medical West As discussed
more in detail later there was a certain amount of em
ployee dissatisfaction with the entire health insurance
program offered by the Respondent especially in regard
ing coverage for dependents Some 183 bargaining unit
employees had either Blue Cross Blue Shield or Medical
West coverage but only 15 percent had opted for pro
grams that extended coverage to dependents
The Respondents manual for employees , which was in
effect until October 14 1987 stated the following with
regarding health insurance
Blue Cross Blue Shield-All full time employees
who work a minimum of twenty four (24) hours
weekly on a continuing basis are eligible to partici
pate in the Home s Blue Cross Blue Shield plan and
the Home assumes the cost of the plan for the em
ployee only And employee may include his family
but will have to pay the difference in cost
On or about October 14 the Respondent issued a new
employee manual which contained the following with
respect to health insurance
Group Medical Insurance-All employees who
work a minimum of twenty four (24) hours weekly
and have successfully completed their trial period
are eligible if not covered by another group plan
4 The Respondent filed a motion to correct the transcript in several
particulars The motion is granted
1270 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
for group hospital surgical and medical insurance
coverage The Home pays for your individual cov
erage
Employees who elect may also have their de
pendents covered The cost of this coverage is
shared by the Home and employee
The parties stipulated that, until October 1 1987 the
Respondent paid 100 percent of the premiums payable
under either plan for the employee himself, but for
family coverage it paid nothing for that portion of the
additional premium that was charged if the employee
elected dependent coverage As a result any employee
opting for dependent coverage under the Blue Cross
Blue Shield plan had to contribute from his own pay
$32 07 a week or $160 40 per month for health insur
ance These figures amounted to 59 9 percent of total
premium for that individual A Medical West beneficiary
opting for dependent coverage had to contribute from
his own pay $29 40 a week, or $127 60 a month for
health insurance These figures amounted to 62 9 percent
of the total premium payable for that individual
Beginning October 1, the Employer continued to pay
100 percent of the premium for employees seeking indi
vidual coverage only 5 It continued to provide Blue
Cross Blue Shield and Medical West programs and
added a new HMO called Cigna, giving every employee
the option of coverage by any one of these three insur
ers At this time the Employer began to make a contribu
tion to defray a portion of each plan allocated for de
pendent coverage for those employees seeking such pro
tection Under the Blue Cross Blue Shield plan, an em
ployee seeking dependent coverage now contributed
only $23 72 per week or $102 79 per month, for such
coverage, which figure represented 38 4 percent of the
total cost of his premium Under Medical West, an em
ployee seeking dependent coverage paid $12 43 per
week or $53 80 per month from his own wages for such
coverage This contribution amounted to 24 6 percent of
the total cost of the employees premium Under the new
Cigna plan the Respondent paid 100 percent of the em
ployee s own coverage Should the employee elect de
pendent coverage he was required to contribute $10 03
per week or $43 44 per month which amounted to 20 8
percent of the total premium for that individual
The pre October 1987 manual for employees contained
the following statement in a section entitled Warning
Notice and Grievance Procedure
Your department head or supervisor is required
to document, in writing any infringement of Home
rules It may be used prior to dismissal
If you have a problem or feel that you have not
been treated according to established Home pole
Gies rules and regulations as stated in this manual
feel free to discuss it with your supervisor If a sat
isfactory solution cannot then be reached your su
pervisor will refer the matter to your department
5 this enlargement of health insurance coverage was actually an
nounced on September 3 1987 in a letter sent to all employee by
Howard L Braverman the Home s executive vice president
head for guidance as to the proper procedure to
handle the problem
The manual did not contain a detailed outline of conduct
that would constitute an infringement of Home rules It
did state that employees were expected to be punctual,
should avoid soliciting tips from patients should not use
the telephone except for extreme emergency and should
smoke only in designated areas Gross violation of rules
warranting discharge was stated to be intoxication on the
job dishonesty insubordination, habitual tardiness fre
quent absences, fighting and any conduct unbecoming
an employee
The October 14 employee manual was much more de
tailed and explicit on these subjects It outlined 19 rule
infractions that ordinarily would result in immediate dis
missal because of the severity of such violations It also
spelled out nine other offenses that ordinarily would be
dealt with either by counseling or by various forms of
minor discipline Under the heading Disciplinary Proce
dure the new manual stated that, in the event an em
ployee should commit an offense warranting disciplinary
action his supervisor could initiate any of the steps out
lined under that heading depending on the seriousness of
the offense These steps included the making of a written
notation of the employees infraction giving the employ
ee a written warning with or without suspension, and
termination
The new manual outlined the grievance procedure, as
follows
In the effort to establish the smoothest possible
working relationship among the members of the
Home a regular system for settling employee griev
ances and problems has been established
What is a grievance? We believe a grievance is
the dissatisfaction which employees feel when they
believe rightly or wrongly that they have not been
treated fairly concerning the administration of a
rule plan Home policy or some other Home
action
When a grievance arises, a sincere effort will be
made to settle it in the following manner
Step 1 Supervisor
If you have a grievance discuss it with your su
pervisor Feel free to put your cards on the table
Your supervisor has been trained to work with you
in solving your problems This should be done
within five (5) working days of the occurrence of
the incident of concern
Step 2 Department Director
If you and your supervisor cannot solve your
problem or if you are not satisfied with the settle
ment of the supervisors decision you may refer the
matter to your department director
Step 3 Administrator
If you are not satisfied with your department di
rector s settlement you may refer the matter to the
administrator At this step you must put your
grievance in writing on the forms made available
for this purpose Take or send the written grievance
to the administrators office
SPRINGFIELD JEWISH NURSING HOME
Step 4 Executive Committee
If the administrators reply does not satisfy you
or if he is unable to solve your problem, the griev
ance will be sent to the executive committee of the
Home They will meet with you and all interested
parties and attempt to reach a settlement
Along with the new booklet, the Respondent prepared
a new form entitled Employment Understanding,
which every new employee was expected to sign One of
the items on this form was a statement by which the em
ployee agreed to read all the Home s bulletin boards
since they are for the general benefit of all employees
On August 27 Braverman made a speech to all em
ployees in which he disparaged the Union involved in
this proceeding and urged Home employees to vote
against it In the course of his speech he announced the
establishment of an employee Hot Line through which
they could communicate with management during the
campaign He spoke as follows
Between now and election day a lot of statements
will be made and a lot of printed material will be
given to you Some of you may be confused and
unsure what is the truth As I said before, I must
give you the truth and I want to be sure you get
the truth so you are not confused, and you can
make the right decision To be sure you ge, truthful
answers to any and all questions or statements I ve
established an employee Hot Line
Here s how it works'
This folder will be posted on the Bulletin Board
across from the cafeteria as well as at each nursing
unit Inside are forms for you to ask a question,
make a statement or request a clarification You do
not have to sign one if you don t want to Return
the form to me by dropping it off at the office I
will respond All answers or comments will be
posted on the Bulletin Boards so each and everyone
of you can benefit from the truth
If there is something you personally want to
know sign it and I will get back to you' Remember
it will be handled confidentially
As I said this is new to me as well as to you It
is a serious matter affecting all of us' So don t be
shy to have your questions answered Get the facts'
I promise you the truth Before you believe the
Union s statements get the facts from me'
In the ensuing months a number of hotline forms were
filled out and submitted The questions along with the
Respondents answers were posted on company bulletin
boards
The employee hotline complaints introduced into the
record deal mostly with grievances over pay and related
matters-asserted discrimination against a salaried, non
exempt employees seeking accumulated overtime pay for
hot'days worked and requesting time and a half for over
time, bonuses for working 6 months without missing
time, a raise on January 1 complaints by nurses aides as
signed to work on Mondays who end up working an un
usually large number of holidays a request for double
time for work on Christmas Day a complaint about the
1271
failure of the Home to pay wage differentials reflecting
longevity, a complaint over the night time differential in
pay a request for incentive bonuses for LPN s, a com
plaint about the contents of the new employee manual
and a host of other matters Braverman s answer was set
forth next to each posted complaint To one employee he
said If you feel you have time coming to you please
see me To several complaints he simply told the griev
ants that they had some good ideas but that nothing
could be done about them until after the election He
phrased one such answer to a question relating to the
wage structure, I have been working on a structured
wage program to address many issues but I cannot do
anything until the union is voted down All our improve
ments have been the result of commitments I have made
since assuming [my] position My past actions, I believe,
speak for the future To the complaint about the new
employee handbook Braverman replied Unlike a union
contract, we have flexibility to make improvements and
amendments to our booklet accordingly if the union is
voted out To a request for a change in current policy
involving prorating of sick pay he stated, Thank you
for your suggestion It does make some degree of sense
and we will review it I cannot however do anything
about it until the resolution of this union matter In one
hotline submission, an employee made reference to
recent changes that the Home had announced respecting
dependent health insurance coverage by stating you
solved our medical problem
In January 1987 the Respondent gave an across the
board increase to all employees In March 1987, the Re
spondent granted an increase to all LPNs On July 1 it
granted a 2 percent across the board increase to all em
ployees The reason for these increases was to permit the
wage rates at the Home to remain competitive with
other employers in a tight labor market in western Mas
sachusetts No challenge has been made in these proceed
ings to any of these increases
For the payroll period effective October 4 1987, the
Respondent made what it called levelling wage adjust
merits for 12 of its 28 registered nurses The net effect
of this adjustment was to establish a hiring in rate of
$1107 an hour and a standard or experienced rate of
$11 57 an hour with or three grades in between Before
this adjustment there were instances in which nurses
having the same amount of service were paid different
rates and this fact had been the subject of repeated com
plaints to the Respondents management during the pre
ceding 6 months At this time individual RNs received
increases ranging from 2 cents to 50 cents per hour
In late October a day or two before the election
charge nurse Jeanne Molloy6 was leaving the premises
6 An issue exists in the case whether Molloy is a supervisor so that her
remarks to Murphy should be attributed to the Respondent The General
Counsel contends that the Respondent is responsible for Molloy s state
ments because she is either a supervisor within the meaning of Sec 2(11)
of the Act or because she is a nonsupervisory agent
The Board has considered the supervisory status of charge nurses on
many occasions and has come to different results In earlier cases the
Board tended to regard them as nonsupervisory employees whose author
ity if any over other employees stems from their professional status
Continued
1272 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
of the Home and passed a picket line manned by several
employees including Darlene Murphy a laundry room
employee and a member of the bargaining unit Murphy
asked Molloy if the nurses had received a pay increase
She replied that they had received increases that were
long overdue Murphy then asked What about our
raises? I credit Murphy s testimony that Molloy replied
If it wasn t for you and the Union you would have
gotten one Murphy then asked, Am I the only one
with the Union on my face?
The former employee manual said nothing about limit
ing access of employees to the Home premises Its only
reference to solicitation involved strangers Canvassers
and solicitors are not permitted in the Home Please
report any such person seen to your supervisor This is
for your protection as well as that of the residents On
these subjects the new manual provided as follows
Entering and Leaving
Upon entering the building employees are ex
pected to report promptly to their job location and
leave the building immediately upon completion of
their schedule Requests to leave work areas shall
be directed to supervisors
You are permitted in the building no earlier than
fifteen (15) minutes prior to the start of your sched
uled work shift and are to leave the premises within
fifteen (15) minutes after completing your work as
signments and signing out If you are not working
you should not loiter on the Home premises
No Solicitation Policy
In the interests of efficiency convenience and
the continued good will of our residents and clients
and for the protection of our employees there shall
be no solicitation or distribution of literature of any
rather than from any investiture of power by the employer See Turtle
Creek Convalescent Centre 235 NLRB 400 (1978) and cases cited therein
Later cases have looked to indicia of supervisory authority without
regard to the context in which that authority is exercised Wright Memo
real Hospital 255 NLRB 1379 (1981) Northwood s Manor 260 NLRB 854
(1982) Pine Manor Nursing Center 270 NLRB 1008 (1984)
Molloy is the charge nurse in D unit which has about 40 patients It is
one of five units at the Home She is in charge of one nurse and four to
six nursing assistants Like the charge nurses in the most recent Board
cases cited above she has no power to hire fire or discipline others who
are working for her She does have the authority to assign them to par
ticular patients and she exercises that authority on a daily basis She testi
feed that she does not discipline her assistants but she does talk to them
about how to approach a patient and how to care for the difficult pa
tients who are in her unit She conveys to them the Employers policies
as they relate to patient care and prepares evaluations on employees as
signed to her unit These evaluations are then forwarded to the director
of nursing and address questions such as the speed and thoroughness of
the employee and her compatibility with other employees These evalua
tions are discussed with each employee along with suggestions regarding
how the employee can improve on any unfavorable ratings she has given
The new employee manual assigns to the charge nurse detailed responsi
bilities for directing employees and accounting for patients during a fire
These activities are clear indicia of supervisory authority so I conclude
that Molloy is a supervisor within the meaning of Sec 2(11) of the Act
In the event that she is not found to be a supervisor it is undenied in this
record that she serves as a conduit between the Respondents manage
ment and the employees who work under her control so that they would
reasonably believe that she was speaking for management As such she is
at least an agent for whose words and actions Respondent bears vicarious
responsibility Einhorn Enterprises 279 NLRB 576 (1986)
kind by any employee during actual working time
of the employee soliciting or the employee being so
licited This does not apply to rest or meal periods
There shall be no solicitation or distribution of
literature of any kind by any person in resident
service areas or lounges unless specifically ap
proved in advance by the administrator
The former employee manual contained a provision re
lating to bulletin boards which read The Home main
tains several bulletin boards for the giving of informa
tion Read your bulletin board Any employee desiring
to post notices on his board must obtain prior permission
from his department head There is uncontradicted evi
dence that in the past bulletin boards at the Home were
used repeatedly by employees for personal messages es
pecially those advertising automobiles or household
items for sale The new employee manual contained the
following statement under the heading Bulletin Board
We maintain a bulletin board at all nursing stations
and outside the cafeteria to keep employees advised
of all items that are of interest to everyone You
should check the bulletin board every day to be
sure you are aware of what is going on Information
will be posted for seven to ten days only The
Home s bulletin boards are reserved for official
Home postings and announcements only
On October 28 2 days before the election, three em
ployee meetings were held throughout the day during
which most if not all Home employees were addressed
by Edward Ricker a labor relations consultant from
Michigan who had been retained by the Respondent to
assist it during the campaign His talks dealt with the
subject of employee pensions Using a flip chart to illus
trate his points Ricker spoke of the pension plan then in
place at the Home in flattering terms and contrasted it to
another pension plan that the same Union had agreed to
with Geriatric Authority a public nursing home located
in Holyoke Massachusetts He told them that if the
matter of pensions were left to negotiation between the
Union and the Home, the Union would ask that its plan
be instituted That plan might be the inferior Geriatric
Authority plan or some other UFCW plan Ricker ad
mitted saying to employees on these occasions that
under a union contract employees might well come
away with a pension plan having less value than the one
they were presently enjoying Respondent s witness
Patina Lawrence testified that Ricker told employees
that if the Union came in at the Home the pension plan
could be discontinued along with everything else I
credit the testimony of Murphy that, at the early morn
ing session she attended, Ricker told employees that em
ployees would lose their present pension plan and end up
with a union plan Murphy took issue with Ricker insist
ing that employees would not lose anything but Ricker
simply ignored her and went on with his talk
The Union lost the election on October 30 by a margin
of about 40 votes The present objections to the conduct
of the election were filed shortly thereafter The follow
ing February Murphy, a known union supporter, com
SPRINGFIELD JEWISH NURSING HOME 1273
plamed to her supervisor Margaret Fabri that rumors
were going about the Home that laundry employees
were causing damage to an employees car These
rumors apparently were being attributed to Dorothy
Gentile, a seamstress who had originally been a union
supporter but who had changed her mind during the
campaign Fabbri went to get Gentile When she and
Murphy came into each others presence, they began to
argue They argued about rumors being circulated that
laundry employees did not work and they argued about
Gentiles car The latter felt that someone at the Home
had damaged her vehicle, and she further stated that she
thought that the damage had been caused because she
had been a union supporter and then had dropped out
After the argument was over, Fabbri told the parties to
avoid each other She told Gentile to stay out of the
laundry and told Murphy to stay out of the sewing
room I credit Murphy s statement that Fabbri also said
to her, I in going to give you a warning Stay out of
trouble and do not talk about the Union
Analysis and Conclusions
In NLRB v Exchange Parts Co 375 US 405 409
(1964), the Supreme Court observed
The danger inherent in well timed increases in bene
fits is the suggestion of a fist inside the velvet glove
Employees are not likely to miss the inference that
the source of benefits now conferred is also the
source from which future benefits must flow and
which may dry up if it is not obliged
Although the grant of an increase in wages or benefits
during an election campaign is not automatically a viola
tion of the Act it is presumptively so unless the employ
er can establish that the timing of its action was gov
erned by factors other than the pendency of the election
American Sunroof Corp 248 NLRB 748 (1980) Honolulu
Sporting Goods Co 239 NLRB 1277 (1979) When in
creases in wages or benefits granted during a campaign
are given in response to issues raised by the union the
ban on financial inducements is more than a presumption
Seneca Plastics, 149 NLRB 320 (1964)
There is no dispute that there had been widespread
dissatisfaction at the Home with the health insurance
plans available to employees before October 1, when the
new coverage was inaugurated The specific complaint
centered on the exhorbitant cost of dependent coverage
There is also no dispute that the Respondent was well
aware of this problem Early in 1987 Braverman told em
ployees that he was working on the problem but there is
no evidence in the record regarding what he was doing
at that point in time As late as July 14, when a draft of
the new employee manual had been completed, the Re
spondent was still insistent that all employees who opted
for dependent health insurance coverage pay the entirety
of the additional premium themselves as they had been
doing for many years If the Employer was doing any
thing at all about health insurance at this point in time it
was nothing more than shopping about for a cheaper
plan
What the Respondent put in place just before the elec
tion was not merely a cheaper health insurance plan but
an undertaking on its part to absorb a portion of the
extra cost of dependent coverage instead of deducting
the total amount of dependent coverage from the pay of
those who desired such protection This was a brand
new benefit and one that had never before been dis
cussed or offered When Braverman was asked at the
hearing why he had not taken this step earlier, he had no
answer His excuse for waiting until early October was
that he did not want to make any change until the anni
versary date of the Blue Cross Blue Shield policy which
occurred on August 15 Why the Respondent simply
could not have forgone payroll deductions for health in
surance premiums relating to dependent coverage at any
point in time is unexplained as is the question whether
its existing health insurance policy could have been
amended if necessary, at any time during the policy
year In fact the new benefit was not conferred on the
anniversary date of the Blue Cross Blue Shield policy It
did not take place until October 1, thus bringing the of
fective date of this change much closer to the election
The Union s Dear Friend letter dated July 24 and ad
dressed to all employees noted that employees with de
pendent health insurance coverage must pay a minimum
of $29 45 per week out of a $6 00 per hour paycheck
(emphasis in the original) These factors make it clear
that this new preelection benefit was being implemented
to respond to an issue raised by the Union and that it
was timed to affect the outcome of the election As such
it was a violation of Section 8(a)(1) of the Act and objec
tionable conduct warranting the setting aside of the elec
tion
The same is true of the wage increase given to nurses
just before the election The announced reason for this
increase, which was granted to 12 out of 28 nurses at or
about the same time the Home announced partial pay
ment of dependent health care premiums was that the
Respondent had to act to remain competitive with other
nursing homes in the area Already in 1987 the Respond
ent had given nurses, as well as others two general pay
increases to remain competitive No challenge to these
increases was made either by the Union or by the Gener
al Counsel The fact that two general increases had re
cently been granted tends to undermine the excuse prof
fered by the Respondent for a levelling adjustment in
October It should be noted that the increases being
questioned did not apply to all nurses another factor that
undercuts the rationale advanced by the Respondent
What was there about its competitive situation in a tight
labor market that required increases for some nurses and
none for others? The record is silent on this point What
the Respondent was doing in October just before the
election was not adjusting wages to meet a competitive
disadvantage but to resolve an internal inequity that had
been a sore spot for some time, but that had not been ad
dressed until the Union s July 24 letter brought it into
focus This letter stated among other things that, in
many cases employees who have worked hard for 10
12 or 15 years are being paid less than people recently hired
to do the same job (emphasis added) The fact that this
1274 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
increase was given only to selected nonunit personnel is
quite immaterial, Because it was clear that news of the
Respondents willingness to address an internal pay in
equity at issue in the campaign would filter through to
bargaining unit employees and in fact it did By granting
a levelling adjustment to certain registered nurses
shortly before the election in this case, the Respondent
violated Section 8(a)(1) of the Act and engaged in objec
tionable conduct affecting the result of the election
On August 26, the Union began to leaflet the Home
with campaign propaganda criticizing the Respondent
for an inadequate grievance procedure claiming that
union representation, including a full time union repre
sentative available at each step of grievance presentation
would be able to settle most grievances fairly and justly
at one of the first two steps On the following day Bra
verman announced the new hotline procedure Within 6
weeks, a new employee manual was published outlining
a detailed grievance procedure which in many particu
Lars, was different from the one noted in the old manual
Both the timing and the text of Braverman s August 27
speech, which was the occasion for announcing the hot
line, demonstrated that the hotline was implemented to
respond to union campaign charges and to defeat its or
ganizational drive
The hotline was established ostensibly to provide a
channel of communication for employees to contact the
front office regarding issues and charges that miglt arise
during the campaign Those issues and charges necessari
ly involved claims and counterclaims about wages,
hours, and terms and conditions of employment The
complaints received posted and answered by the Re
spondent all related to working conditions, wages and
benefits In short, they were grievances and the estab
lishment of a hotline during the campaign amounted to a
solicitation of those grievances In one instance, Braver
man replied to a grievant by suggesting that she come to
see him if she felt she had some money coming under the
terms of an existing company benefit In other instances,
Braverman said that he could not remedy the grievance
until after the union problem had been disposed of but
implicit in these answers was the idea that he would re
spond meaningfully and affirmatively to grievances after
the election By soliciting grievances during an organiza
tional campaign with a view toward adjusting them the
Respondent violated Section 8(a)(1) of the Act and en
gaged in objectionable conduct calculated to affect the
result of a representation election
A comparison of the grievance procedures outlined in
the new and old handbook reveal that the new prone
dure, effective on or about October 14, is much more de
tailed and more highly structured than the one it re
placed Whether it is also more advantageous to an indi
vidual grievant than the earlier procedure is problematic
The institution of such a procedure in the face of union
criticism did demonstrate to employees that their em
ployer was responding to perceived defects in its person
nel practices and that unionization was unnecessary to
bung about constructive changes at the Home Accord
ingly, the institution of this new procedure violated Sec
tion 8(a)(1) and was objectionable conduct calculated to
affect the result of a representation election
The new handbook contained new and different regu
lations in several areas, which had the effect of limiting
the Union s ability to communicate with employees
during the last critical weeks of the election campaign
In the past, bulletin boards had been available for person
al employee use? and we-e, in fact, regularly used to ad
vertise the sale of personal items The new regulation
stated flatly that bulletin boards were for the exclusive
use of he Home This change instituted just before the
election and during a period when a bulletin board had
been used for the posting of union propaganda was
plainly prompted by antiunion considerations and, as
such is an interference with protected activities in viola
tion of Section 8(a)(1) of the Act It is also objectionable
conduct affecting the outcome of the election
Before October 14, there was no written rule or regu
lation restricting access to the Home by off duty employ
ees Murphy testified without contradiction that it was
often her practice to come to work half an lour early
and have a cup of coffee in the cafeteria The new regu
lation limited access to the Home to 15 minutes before
and 15 minutes following an employees shift Both the
timing and the obvious effect of the change was to re
strict the ability of employees to promote union organiz
ing during off duty hours an obligation newly imposed
on them by a third innovation in the new manual The
new regulation violated Section 8(a)(1) of the Act and is
objectionable conduct affecting the outcome of the elec
tion
A third questioned provision in the new manual is the
no solicitation no distribution rule announced therein
Previous to the promulgation of this document no such
limitations were imposed on Home employees Suddenly,
within weeks of the election, this restriction on their abil
ity to communicate the Union s message to others was
formalized in wr ting and announced to all concerned
The General Counsel does not attack the internal nature
of the restrictions Had they been imposed at some other
time or under some other circumstances, they might very
well have passed muster However the timing of the
new rules was clearly calculated to inhibit organizational
activities Accordingly, the rules violated Section 8(a)(1)
of the Act and are objectionable conduct affecting the
outcome of the election
The Respondent defends these new regulations on the
basis that they were de minims and that they were never
enforced Neither defense is meritorious These regula
tions were not put into effect singly they were part of a
design involving several regulations all of which had an
adverse impact on the ability of employees to communi
cate with each other and on the ability of the Union to
communicate with all of them The fact that the Re
spondent may not have enforced these regulations is also
immaterial Respondent did not announce that 't was not
going to enforce its new regulations Any employees
I do not find an unfair labor practice or objectionable conduct from
the testimony of Murphy that members of the in house antiunion commit
tee removed union literature that she had posted on one of the bulletin
boards There is no evidence that this action on the part of some rank
and file employees was sponsored by or condoned by the Respondent
Hence there is no basis for attributing it to the Home
SPRINGFIELD JEWISH NURSING HOME 1275
reading these regulations, and all new employees, had to
sign a document stating that they had read the manual
and were put on notice that the were expected to
comply with these restrictions or incur the possibility of
discipline If the Respondent did in fact enforce these
regulations-up to now-its inaction indicates only that
there was no business reason or justification that prompt
ed it to include them in its new employee manual By
limiting access to the Home, by establishing a new distri
bution and no solicitation rule at the Home, and by re
stricting bulletin board use to official Home documents,
the Respondent violated Section 8(a)(1) of the Act and
engaged in objectionable conduct affecting the outcome
of the election
There is no dispute that, at the massed assembly
speeches that took place on October 28, some 2 days
before the election the Respondent's labor relations con
sultant Ricker made an unfavorable comparison between
the Home s existing pension plan and the pension plan
that the Union had agreed to with Geriatric Authority, a
publicly funded nursing home in nearby Holyoke Ricker
also told them that if the Union won the election it
would try to have its own plan installed and that, in the
course of collecti'e bargaining , employees might well
come away with less in the way of a pension plan than
they were currently enjoying I credit testimony to the
effect that he told at least one group of employees that
in the event of unionization, they would lose their
present pension plan and end up with the less generous
union plan Such a statement violates Section 8(a)(1) of
the Act and is objectionable conduct that affects the out
come of the election
The only allegation of a violation of the Act occurring
outside the Goodyear period involves a conversation be
tween Fabbri and Murphy in the laundry room sometime
in February 1988 Fabbri was understandably upset about
having to referee an ongoing dispute between two em
ployees that had its origin in their disagreement over
unionization She was within her rights by telling them
to stay away from each other However, she went
beyond the scope of permissible instructions when she
told Murphy I am giving you a warning Stay out of
trouble, and do not talk about the Union By virtue of
these remarks, the Respondent violated Section 8(a)(1) of
the Act
CONCLUSIONS OF LAW
1 The Respondent, Springfield Jewish Nursing Home
for the Aged, Inc is now and at all times material has
been an employer engaged in commerce within the
meaning of Section 2(2) (6) and (7) of the Act
2 Professional and Health Care Division, United Food
and Commercial Workers Union, Local 1459, a/w
United Food and Commercial Workers International
Union, AFL-CIO is a labor organization within the
meaning of Section 2(5) of the Act
3 By granting new health insurance benefits during
the course of an organizational campaign, by granting
levelling pay increases to nonunit employees to influence
bargaining unit employees during an organizing cam
paign, by establishing a new grievance procedure and an
employee hot line for the purpose of soliciting griev
ances and resolving them, by discriminatorily promulgat
ing new rules that would limit employee access to com
pany premises, inhibit their ability to solicit for the
Union and distribute union campaign literature on corn
pany premises, and impede employee access to bulletin
boards for the posting of union literature, by threatening
employees with the loss of pension benefits if they voted
to unionize, and by warning employees not to speak to
other employees about union matters , the Respondent
violated Section 8(a)(1) of the Act Such activity, with
the exception of the warning not to speak to other em
ployees concerning union matters, constitutes objection
able conduct affecting the result of a representation elec
tion conducted on October 30, 1987
4 The aforesaid unfair labor practices have a close in
timate, and substantial effect on the free Pow of com
merce within the meaning of Section 2(6) and (7) of the
Act
REMEDY
Having found that the Respondent has committed vari
ous unfair labor practices, I will recommend that it be
required to cease and desist therefrom and to take other
affirmative actions designed to effectuate the purposes
and policies of the Act Because the violations of the Act
found in this case evidence an attitude on the part of this
Respondent to behave in total disregard of the rights of
its employees and the requirements of the Act I will rec
ommend to the Board a so called broad 8(a)(1) remedy
designed to suppress any and all violations of that Sec
tion of the Act Hickmott Foods 242 NLRB 1357 (1979)
I will recommend that the Respondent be required to
post the usual notice advising its employees of their
rights and of the results of this case
[Recommended Order omitted from publication ]