Sunrise Manor Nursing Home

National Labor Relations Board - Board Decisions

Oct 30, 1972

199 N.L.R.B. 1120 (N.L.R.B. 1972)

1120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Eugene and Veronica McManus , co-partners d/b/a
Sunrise Manor Nursing Home and Local 1199, Drug
and Hospital Union, Retail, Wholesale and Depart-
ment Store Union, AFL-CIO and Grievance Com-
mittee, Party in Interest
Eugene and Veronica McManus, co-partners d/b/a
Sunrise Manor Nursing Home and Local 1199, Drug
and Hospital Union, Retail , Wholesale and Depart-
ment Store Union, AFL-CIO, Petitioner. Cases 29-
CA-2301 and 29-RC-1665
October 30, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER ' AND MEMBERS FANNING AND
JENKINS
On December 6, 1971, Administrative Law
Judge I Benjamin K. Blackburn issued the attached
Decision in this proceeding. Thereafter, Respondent
and the General Counsel filed exceptions and sup-
porting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order except as modified
herein.
The facts are discussed in detail in the attached
Decision. Briefly, local 1199, hereinafter referred to as
the Union, commenced its organizing campaign dur-
ing January 1971.2 On January 19, at the suggestion
of Respondent, the employees formed a grievance
committee to act as their representative in dealing
with management. The grievance committee met with
management of January 29, at which time Respon-
dent announced a pay raise effective with the pay
period beginning February 7. At these meetings vari-
ous other subjects were discussed and some additional
benefits were granted. At a staff meeting held on Feb-
ruary 1, Respondent made the same announcement
about the pay raise to the assembled employees. On
February 4, the Union demanded recognition, pre-
senting authorization cards from a majority of em-
ployees in the unit. Respondent stated that it
preferred an election, and the Union filed the petition
1 The title of "Trial Examiner" was changed to Administrative Law Judge"
effective August 19, 1972.
2 Unless otherwise stated, all dates occurred in 1971
in Case 29-RC-1665 on February 5. An Agreement
for Consent Election was executed and approved on
February 12 and the election was held on February
24. The results were 26 votes for the Union, 31 against.
There were no void or challenged ballots. Thereafter
the Union filed objections to the election, and the
Regional Director issued a complaint in Case 29-CA-
2301 following the filing of charges by the Union. The
Regional Director consolidated the two cases for
hearing.
The Administrative Law Judge found that Re-
spondent violated Section 8(a)(1), (2), and (5) of the
Act, that the election held in Case 29-RC-1665 on
February 24 should be set aside, and that Respondent
should be ordered to bargain with the Union. He,
therefore, ordered Case 29-RC-1665 severed and
transferred to the Regional Director for Region 29 for
further processing pursuant to the Board's Rules and
Regulations, Series 8, as amended. Thereafter, on
February 29, 1972, the Regional Director ordered the
election set aside.
On August 2, 1972, the Charging Party requested
permission to withdraw as much of the charge filed as
alleged that the Employer unlawfully refused to bar-
gain in violation of Section 8(l)(5) of the Act in order
that it might proceed with an election requested by it
in Case 29-RC- 1665. On August 16, 1972, the Gener-
al Counsel notified the Board that it had no objection
to the Charging Party's request. On August 23, 1972,
the Board issued an order granting the Charging
Party's motion and ordered that the 8(a)(5) allegation
of the complaint in Case 29-CA-2301 be dismissed.
Accordingly, we shall consider the 8(a)(1) and (2) alle-
gations remaining in issue.
The Respondent excepts to the Administrative
Law Judge's rulings at the hearing in granting the
General Counsel's motions to add the Grievance
Committee (hereafter Committee) as a Party in Inter-
est in Case 29-CA-2301 and to add a conclusionary
allegation to the complaint that Section 8(a)(2) of the
Act had also been violated.' Citing Champion Pneu-
matic Machinery Co., 152 NLRB 300, and Sunnen
Products, Inc., 189 NLRB No. 132, in support of its
opposition to the latter rulings, Respondent renews its
contention made at the hearing that the charge is not
broad enough to support the conclusionary allega-
tion. Since the Committee was formed on January 19,
and the motion to amend the complaint was granted
on September 9, Respondent argues further that the
effect of granting the motion was to allow an
amendment of the charge in violation of the 6-month
7 In view of the allegation in the amendment to complaint that Respondent
violated Sec 8 (a)(2) of the Act with respect to the Grievance Committee, and
in view of our finding herein that that amendment was proper , we find, as
did the Administrative Law Judge , that the Grievance Committee was prop-
erly named as a Party in Interest.
199 NLRB No. 154
SUNRISE MANOR NURSING HOME 1121
limitation proviso of Section 10(b). We find no merit
in these contentions.
The charge in the instant case was filed on March
4, 1971, and served on March 6. It alleged violations
of Section 8(a)(1) and (5) as follows:
On or about January 29, 1971 the Employer vio-
lated the Act by promising wage increases and
other benefits to the employees if they would
abandon the charging party, and on or about
February 19, 1971 the employees were given
wages [sic] increases and other benefits in line
with the promise previously made.
Since on or about February 4, 1971 the Employer
has refused to bargain with the charging party in
a unit of aides, housekeeping, maintenance and
kitchen employees, despite the fact that the
charging party represented a majority of such
employees. The Employer by making promises of
benefits and the actual grant of benefits has de-
stroyed the Union's majority.
The charge also contained the usual catchall printed
language; namely, "By the above and other acts, the
above-named employer has interfered with, re-
strained, and coerced. employees in the exercise of the
rights guaranteed in Section 7 of the Act."
The complaint, which issued on May 28, alleged
in paragraph 22:
On or about January 19, 1971, Respondent
... initiated, participated in the formation of, and
sponsored and encouraged the organization of
the Committee, and thereafter has recognized,
met, and dealt with said Committee on or about
January 29, 1971, February 26, 1971, March 26,
1971, and April 30, 1971, concerning grievances,
benefits, and other terms and conditions of em-
ployment ....
Paragraph 23 alleged:
On or about January 29, 1971, at a meeting
with the Committee, and or about February 1,
1971, at a staff meeting of the employees .. .
Respondent ... offered, promised, and on Feb-
ruary 7, 1971 granted wage increases to its em-
ployees . . . and on or about dates presently
unknown in February, March, and April 1971,
offered, promised, and granted ... other benefits
and improvements in their working conditions
and terms of employment, to induce them to re-
frain from becoming or remaining members of,
and giving any assistance or support to the Un-
ion, and to induce them to abandon their mem-
bership in and activity on its behalf. [Emphasis
supplied.]
Based on the foregoing and other conduct alleged in
paragraph 24, the complaint alleged violations of Sec-
tion 8(a)(1) but did not specifically allege a conclu-
sionary violation of Section 8(a)(2). The complaint
also alleged that Respondent engaged in all the above
conduct in order to undermine the Union and to de-
stroy its majority status among the employees and
thereby refused to bargain with the Union in violation
of Section 8(a)(5).
While we agree, as noted in the Champion and
Sunnen cases, supra, that the catchall printed language
in the charge does not embrace any and all violations
of Section 8(a)(2), (3), (4), and (5) which might have
occurred within the 6-month period prior to the filing
of the charge,4 It is well settled that the complaint may
allege violations of a different section of the Act than
that alleged in the charge if they are closely related to
the violations named in the charge and occurred with-
in 6 months of the filing of the charge.' Similarly, an
amended charge, although filed more than 6 months
after the occurrence of the unfair labor practice, will
be timely if it relates to an unfair labor practice inher-
ent in or connected with the original charge 6 The sole
issue presented by Respondent's exception is whether
the charge is broad enough to support the 8(a)(2)
allegations of the complaint.'
In our opinion, the critical link between the
8(a)(2) allegation in the complaint and the charge is
the allegation in the charge that on January 29 Re-
spondent promised wage increases and other benefits
to the employees if they would abandon the Union.
The record shows, as alleged in the complaint and
found by the Administrative Law Judge, that Respon-
dent first announced the wage increase on January 29
at a meeting with the Committee. The record shows
further, as we find below, that at this meeting Respon-
dent also dealt with the Committee concerning other
employee grievances and promised additional bene-
fits to the employees. It is also established on the
record that on January 19 Respondent called a staff
meeting for the purpose of dealing with discontent
and known union activity among its employees. Re-
spondent suggested the formation of the Committee
and Virginia Blomberg, Respondent's director of
nursing services and an admitted supervisor, re-
mained at the meeting while the members of the Com-
mittee were elected. It is apparent from the record,
and we find, that Respondent used the Committee as
the vehicle for dealing with the employees' grievances
and granting improvements in their wages and other
conditions. As alleged in the complaint, we find fur-
ther that Respondent's granting of the wage increase
and other benefits by virtue of its dealings with the
Committee on January 29 further undermined the
4 See also Prince Pontiac, Inc, 174 NLRB 919.
5 See Great Plains Steel Corp., 183 NLRB No. 96 , and cases cited therein.
6 K & M Machine Company, Inc, 162 NLRB 83, 93-94.
7 Since par . 22 of the complaint alleged in substance a violation of Sec.
8(a)(2), we conclude that the Trial Examiner's granting of the motion to
include the conclusionary allegation added nothing of substance to the com-
plaint or to the issue to be decided.
1122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union and, as also alleged in the charge, destroyed
the Union's majority. Accordingly, as the formation
of the Committee occurred within the 6-month period
prior to the service of the charge and was closely
related to the unfair labor practices alleged in the
charge, we conclude that the violation of Section
8(a)(2) alleged in the complaint, as amended, is well
founded.
Even if we agreed with Respondent's contention
that the charge was not broad enough to support the
inclusion of the 8(a)(2) allegation in the complaint, we
nonetheless would find Respondent's conduct with
respect to the Committee violative of Section 8(a)(1).
Respondent's suggestion that the employees form the
Committee was in response to the employees' efforts
to organize the Union and it is itself a violation of
Section 8(a)(1).8 It follows, therefore, that Respon-
dent's dealing with and granting of benefits through
the Committee in these circumstances also violated
Section 8(a)(1).9
We find merit in the General Counsel's excep-
tions to the failure of the Administrative Law Judge
to find that Respondent violated Section 8(a)(1) at the
January 29 meeting with the Committee by agreeing
to various proposals from the Committee; to wit: the
installation of vending machines, providing monthly
rather than weekly work schedules and mobile gar-
bage cans, the relocation of patient signal lights, and
scheduling patient shower days to coincide with
change of linen days. The record shows that these
changes were made for the convenience of the em-
ployees and constituted a grant of benefits or im-
provements in the employees' terms and conditions of
employment. In light of Respondent's unlawful con-
nection with the formation of the Committee and its
unlawful motives in dealing with and using the Com-
mittee to undermine the Union, we find Respondent's
dealings with and granting of benefits through the
Committee to be violative of Section 8(a)(1).10
CONCLUSIONS OF LAW
1. Eugene and Veronica McManus, co-partners
d/b/a Sunrise Manor Nursing Home, is an employer
REA Trucking Company, Inc., 176 NLRB 520, Alarm Device Manufactur-
rn^ Co, 175 NLRB 659, 666.
Cf. Illinois Marble Co., 167 NLRB 1012.
10 Cf. Illinois Marble Co., Inc., supra
The General Counsel alsd excepts to the failure of the Administrative
Law Judge to consider , as additional violations of Sec. 8(aX1), Respondent's
conduct in dealing with and granting benefits through the Committee at
subsequent meetings while objections to the election were pending . See Sea
Life, Incorporates{ 175 NLRB 982, 985; Ambox, Incorporate4 146 NLRB
1520. The Administrative Law Judge rejected part of the General Counsel's
evidence with regard to these meetings . As the finding of further violations
with regard to these meetings would be cumulative and would not affect the
remedy, we need not pass on the issues raised by this exception
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Local 1199, Drug and Hospital Union, Retail,
Wholesale and Department Store Union, AFL-CIO,
and the Grievance Committee are labor organizations
within the meaning of Section 2(5) of the Act.
3. By initiating the formation on January 19,
1971, of a labor organization to represent its employ-
ees, Respondent has violated Section 8(a)(2) and (1)
of the Act.
4. By announcing a pay raise to its employees on
January 29, and February 1, 1971, and by putting it
into effect on February 7, 1971, in order to induce its
employees to abandon their union activities; by inter-
rogating its employees about their union activities and
the union activities of other employees on or about
January 14, and February 1, 2, and 10, 1971; and by
threatening an employee with reprisals for her union
activities on February 2, 1971, Respondent has viola-
ted Section 8(a)(1) of the Act.
5. By dealing with and granting wage increases
and other benefits through the Grievance Committee
for the purpose of interfering with, restraining, or
coercing its employees in the exercise of rights guar-
anteed them in Section 7 of the Act, Respondent has
violated Section 8(a)(1) of the Act.
6. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that the Respondent, Eu-
gene and Veronica McManus, co-partners d/b/a
Sunrise Manor Nursing Home, its agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Interfering with the formation or administra-
tion of the Grievance Committee or any other labor
organization of its employees.
(b) Announcing and granting pay raises in order
to induce its employees to abandon their union activi-
ties.
(c) Dealing with and granting wage increases and
other benefits through the Grievance Committee, or
any other similar employee committee, for the pur-
pose of interfering with, restraining, or coercing its
employees in the exercise of rights guaranteed them in
Section 7 of the Act.
(d) Interrogating its employees about their union
activities and the union activities of other employees.
SUNRISE MANOR NURSING HOME 1123
(e) Threatening employees with reprisals for their
union activities.
(f) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
right guaranteed in Section 7 of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act:
(a) Withdraw and withhold recognition from the
Grievance Committee as a representative of its em-
ployees unless and until such time as the Grievance
Committee is certified by the National Labor Rela-
tions Board.
(b) Post at its nursing home in Bay Shore, New
York, copies of the attached notice marked "Appen-
dix." I I Copies of said notice, on forms provided by the
Regional'' Director for Region 29, after being duly
signed by Respondent's representative, shall be post-
ed by it immediately upon receipt" thereof, and by
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices
to employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that 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 the Respondent has taken to comply here-
with.
IT IS FURTHER ORDERED that the complaint be, and
it hereby is, dismissed insofar as it alleges violations
of the Act not found herein.
11 In the event that this Order is enforced by a Judgment of a United States
Court of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board " shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act gives all em-
ployees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through a representa-
tive of their own choosing
To act together for collective bargaining or
other aid or protection
To refrain from any or all of these things.
WE WILL NOT interrogate you about your un-
ion activities or the union activities of other em-
ployees.
WE WILL NOT threaten you with reprisals for
your union activities.
WE WILL NOT interfere with the formation or
administration of any labor organization which
represents you.
W WILL NOT announce and grant pay raises
in order to induce you to abandon your union
activities.
WE WILL NOT deal with and grant wage in-
creases and other benefits through the Grievance
Committee, or any other similar employee com-
mittee, for the purpose of interfering with, re-
straining, or coercing you in the exercise of the
above rights.
WE WILL NOT, in any like or related manner,
interfere with you or attempt to restrain or coerce
you in the exercise of the above rights.
WE WILL hereby withdraw our recognition of
the Grievance Committee as your collective-bar-
gaining representative.
All our employees are free, if they choose, to join
Local 1199, Drug and Hospital Union, Retail, Whole-
sale and Department Store Union, AFL-CIO, or any
'other labor organization.
Dated By
EUGENE AND VERONICA
MCMANUS, CO-PARTNERS
D/B/A/ SUNRISE MANOR NURS-
ING HOME
(Employer)
(Representative) (Title)
The National Labor Relations Board having found,
after a trial, that we violated Federal law by interro-
gating and threatening you about your union activi-
ties and by initiating the formation of the Grievance This is an official notice and must not be defaced
Committee, we hereby inform you that: by anyone.
1124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, 16 Court Street, Fourth Floor, Brook-
lyn, New York 11241, Telephone 212-596-5386.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
FINDINGS OF FACT
1. JURISDICTION
Respondent, a copartnership, operates a nursing home
in Bay Shore, New York. During the year just prior to
issuance of the complaint, it grossed more than $100,000
and received goods and materials valued at more than
$50,000 which came to it, directly and indirectly, from sup-
pliers located outside the State of New York. It is engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act. Local 1199 is a labor organization within the
meaning of Section 2(5) of the Act.
BENJAMIN K. BLACKBURN. Trial Examiner: The petition
in Case 29-RC-1665 was filed on February 5, 1971.1 The
election was held on February 24 pursuant to an Agreement
for Consent Election approved on February 12 by the Re-
gional Director of Region 29. Local 1199 filed objections on
March 1 and the charge in Case 29-CA-2301 on March 4.
On May 28 the Regional Director issued a complaint in case
29-CA-2301 and a report on objections in Case 29-RC-
1665, and consolidated the two cases for hearing. The hear-
ing was held on August 16, 17, and 18 and September 9 and
10 near Hauppauge, New York.
The complaint alleges that various acts by Respondent
constitute violations of Section 8(a)(1) and (5) of the Na-
tional Labor Relations Act, as amended. The report on
objections states that issues raised by two of Local 1199's
objections are substantially similar to some of the issues
involved in Case 29-CA-2301. At the hearing, I granted the
General Counsel's motions to add the Grievance Commit-
tee as a Party in Interest in Case 29-CA-2301 and to add
a conclusionary allegation to the complaint that Section
8(a)(2) of the Act had also been violated. Consequently, the
principal issues litigated are whether various acts, principal-
ly Respondent's role in the formation of a grievance com-
mittee on January 19 to represent its employees and its
granting of a wage increase effective February 7 to all em-
ployees in the bargaining unit involved in the election, con-
stitute violations of Section 8(a)(1), (2), and (5) of the Act,
whether the same acts require setting aside the results of the
election, and, if so, whether a bargaining order rather than
a second election is required under the Gissel principle.
N.L.R.B. v. Gissel Packing Company, 395 U.S. 575. For the
reasons set forth below, I find that Respondent has violated
Section 8(a)(1), (2), and (5) of the Act, that the election held
in Case 16-RC-1665 on February 24 should be set aside,
and that Respondent should be ordered to bargain with
Local 1199.
Upon the entire record, including my observation of
the demeanor of the witnesses, and after due consideration
of oral argument at the hearing as well as briefs filed subse-
quently, I make the following:
1 All dates are 1971 unless otherwise specified.
lI THE UNFAIR LABOR PRACTICES
A. Facts
Respondent moved into a new building containing 80
beds on November 6, 1970. Its old building had a 37-bed
capacity. Consequently, its staff expanded in a short time
from approximately 20 to approximately 90, including, in
both cases , registered nurses and licensed practical nurses
as well as the nurses aides, housekeepers, kitchen workers,
and maintenance employees who comprise the bargaining
unit agreed to in Case 29-RC-1665. In early October 1970,
Desmond McManus, administrator of the home and son of
the owners, gave bargaining unit employees a 15-cent raise.
This brought them to $2 an hour . In late October 1970,
Eugene McManus, one of the owners, told a group of nurses
aides that unions were going to try to get into the new home,
that a raise to $2.25 an hour was imminent, and that he
hoped the employees would be loyal enough to keep the
unions out . On November 6, 1970, Desmond McManus,
granted another raise to $2.25 an hour. He also increased
some fringe benefits employees were then receiving and
created others. Shortly thereafter, when employees inquired
about the possibility of future raises , he told them that he
planned to give another raise as soon as it was economically
feasible. Virginia Blomberg, Respondent's director of nurs-
ing services, replied in a similar vein when a group of nurses
aides raised the subject with her at a meeting in December
1970.
Concern about their wages led to union activities by the
employees. One of the nurses aides contacted Local 1199.
As a result, Edward Kay, an area director for Local 1199,
met four of Respondent' s nurses aides , including June
Fischer and Dellanor McGriff, at a restaurant near the
home on January 14. After a discussion of the prospects of
organizing Respondent's employees, he obtained signed au-
thorization cards from each of the four and gave them blank
cards so that they could obtain the signatures of other em-
ployees. They proceeded to do so forthwith. (The employees
placed prounion posters in the home within a few days of
January 14. They began wearing Local 1199 buttons on
their clothing around January 27.) Within a day or two of
January 14, Mrs. Blomberg asked Barbara Clarke and
Maureen Connor, both nurses aides, if they had been ap-
proached about the Union. They replied no, they had
SUNRISE MANOR NURSING HOME
approached the Union. Mrs. Blomberg said that she did not
think they needed a union because the benefits that the
home offered were very liberal. Mrs. Blomberg also received
a telephone call (whether before or after January 14 is un-
clear in the record) from a licensed practical nurse on
Respondent's staff who told her that there was discontent
among the employees. As a result, a staff meeting was
scheduled for the afternoon of Tuesday, January 19.
Dorothy Rindfleisch, a nurses aide who had formerly
belonged to Local 1199 when she worked at another nursing
home in the area, was working the 11 p.m. to 7 a.m. shift
at the time. Mrs. Blomberg had occasion to talk to her on
the telephone on the morning of January 19 and reason to
believe that she was opposed to the Union. Mrs. Blomberg
invited her to come to the meeting that afternoon. Mrs.
Rindfleisch did so.
At the January 19 staff meeting, Desmond McManus
and Mrs. Blomberg presided. An employee asked whether
there was going to be another pay raise. McManus said he
planned to grant one when it was economically feasible.
There was a discussion about the Union. Mrs. Rindfleisch
started to tell of her unsatisfactory experience with it when
she was shop steward at the other nursing home. Mrs. Fisch-
er interrupted her, saying that Mrs. Rindfleisch had failed
to represent the girls properly. Mrs. Rindfleisch sat down as
tears came to her eyes. Mrs. Fischer listed various benefits
that the Union had to offer. Among them, she said, was the
fact that five places were reserved in the student body of
Suffolk County Community College for members of Local
1199 who wanted to become nurses . McManus and Mrs.
Blomberg suggested that the employees form a grievance
committee to act as their representative in dealings with
management. The employees accepted the suggestion. Mc-
Manus left the room. Mrs. Blomberg remained as the em-
ployees elected, by a show of hands, five of their number,
including June Fischer, Dellanor McGriff, and Dorothy
Rindfleisch, as a grievance committee. The five were select-
ed on the basis of giving representation to employees on
each shift. Dellanor McGriff was selected as chairman
(whether before or after Mrs. Blomberg left is not clear in
the record). After the election, Mrs. Blomberg left the room
at the employees' request. As with all meetings between
McManus and/or Mrs. Blomberg and groups of employees,
the employees who attended the January 19 staff meeting
were paid for the time they spent there.
The following Monday, January 25, Mrs. Blomberg
telephoned the dean of Suffolk County Community College
and inquired whether what Mrs. Fischer had said about
places reserved for Local 1199's members was true. The
dean said that it was not. Mrs. Blomberg asked for a letter
to that effect. She went to the college and picked up a letter
from the dean which stated that all applicants had to meet
the same requirements for admission regardless of what
organization they belonged to. Mrs. Blomberg duplicated
the letter, posted it on bulletin boards in the home, and left
copies for employees at the nurses station on the first floor,
all on January 25.
McManus and Mrs. Blomberg met with the Grievance
Committee (it has no other or more formal name) on Friday
afternoon, January 29. McManus announced that all em-
ployees in the job classifications that eventually became the
1125
bargaining unit in Case 29-RC-1665 would receive a pay
raise effective with the pay period beginning Sunday, Feb-
ruary 7, which would show up in the paychecks they would
receive during the week of February 14. Employees with
more than 1 year of service were to receive $12 more per
week, those with less $10. Various subjects were discussed
by McManus, Blomberg, and the Grievance Committee. As
to Respondent's wage policy in the future, McManus sug-
gested an annual review and individual increases on a merit
basis. The committee took it under advisement. Other sub-
jects were vending machines for the use of the employees
(McManus pointed out that the building had been designed
with vending machines in mind, he had just not gotten
around to arranging for them; he subsequently did so);
monthly instead of weekly work-schedules so that employ-
ees could better plan their leisure time activities (accepted
by McManus); and various improvements in the building
and its equipment, such as additional, better located signal
lights that show what patients are calling for attention and
wheeled garbage cans which would make for a more effi-
cient operation.
A staff meeting was held on Monday, February 1. Mc-
Manus made the same announcement about a pay raise to
the assembled employees that he had made to the Grievance
Committee the preceding Friday. He said that he was grant-
ing the raise because the employees had pushed his back to
the wall. He also brought up the statement June Fischer had
made at the January 19 meeting about Local 1199 having
a special status at the local community college. He de-
scribed the investigation Mrs. Blomberg had conducted and
its result, i.e., proof that Mrs. Fischer's information was
inaccurate.
That night, Clara McCormack, Respondent's supervi-
sory nurse in charge of the 11 p.m. to 7 a.m shift, spoke to
a group of nurses aides as they were getting their assign-
ments for the shift. She said she was glad the girls had gotten
their raise and asked why, having gotten it, they wanted the
Union. One of them replied that what they wanted was job
security.
The next 'day, Tuesday, February 2, an incident oc-
curred which involved June Fischer and a newly hired nur-
ses aid named Evelyn Lopez. Miss Lopez had started to
work at the home on Monday. On Tuesday Mrs. Blomberg
called her to the office to sign various forms, including a
W-4. When Miss Lopez walked in, Mrs. Blomberg noticed
that she was wearing a union button. Mrs. Blomberg asked,
rhetorically, "What's that?" Miss Lopez told her it was a
union button she had received from Mrs. Fischer the eve-
ning before when Mrs. Fischer had gotten her to sign an
authorization card.2 Mrs. Blomberg reported to Desmond
2 Precisely what was said in this conversation presents the only significant
credibility conflict in the record . I found Virginia Blomberg to be an excep-
tionally candid and forthright witness with outstanding powers of recall. I
credit her explanation that Miss Lopez has confused this incident with an
episode in March when she happened to see Miss Lopez at Smithtown
General Hospital where Miss Lopez was taking clinical training in discred-
iting Miss Lopez' testimony that , on February 2, Mrs. Blomberg told her "if
I took off the 1199 [button) she will tell some of her friends to help me while
I was in training " I do not discredit Miss Lopez' and Mrs Fischer 's testimo-
ny that Miss Lopez signed an authorization card on February 1 at Mrs.
Fischer's request voluntarily and without any pressure being brought on her.
I think the explanation for Miss Lopez' giving Mrs Blomberg the opposite
Continued
1126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
McManus that Mrs. Fischer had pushed Miss Lopez into
signing a card.
Mrs. Fischer was summoned to the office. McManus
told Mrs. Fischer that he did not want her pushing her
prounion views down the throats of other employees. Mrs.
Fischer denied that she had done so. She said that it was not
fair of McManus to call only her to the office when all the
employees wanted the Union. McManus said that union
people were gangsters. Mrs. Blomberg said that they drove
around in Cadillacs. Mrs. Fischer said that Mr. Kay had a
Pontiac so old that he prayed every time he got into it. Mrs.
Fischer asked McManus why, if she was willing to pay her
$6.50 union dues, he was so against the Union. He replied
that it did not cost him anything because he was reimbursed
by "Albany" for whatever was spent. He said that he did not
want a union in the home telling him how to run his place.
Mrs. Blomberg said the home had been a big happy family
before. Mrs. Fischer asked her before what, before the Un-
ion came in the picture or before Mrs. Fischer came to work
there. (Mrs. Fischer started working for Respondent on
December 4, 1970.) Mrs. Blomberg replied, "Just before."
McManus said he thought Mrs. Fischer was the leader in
trying to organize the employees. He said he thought she
should try to influence the girls more for management and
less for the Union. He said that anyone who did not like the
way he ran the home was free to leave.
On Thursday, February 4, Kay visited the home. Ac-
companied by an associate and approximately 20 to 25 of
the employees who had signed authorization cards he met
with McManus in McManus' office. Kay had 42 authoriza-
tion cards with him. He told McManus that Local 1199
demanded recognition as bargaining representative of
Respondent's employees. He pointed to the presence of the
crowd of employees as living evidence of the employees'
desire for representation. When McManus refused imme-
diate recognition, Kay asked for a card count, displaying
the 42 cards he had in his hand and asserting that they were
from a majority of bargaining unit employees. McManus
demurred at a card count also. He suggested an election
conducted by a state board. Kay said that a National Labor
Relations Board election would be more appropriate and
questioned McManus about the size of his operation to
determine whether Respondent meets the Board's jurisdic-
tional standards. Kay then led the employees into the hall
where they caucused. He explained to them the technique
by which a labor organization gains representational rights
by petitioning the Board for an election. (This was the first
time the subject of an election had come up in the course
of the Union's campaign.) He asked the employees if they
wanted to go that route. They said that they did. Kay in-
formed McManus of the decision.
As already indicated, the petition in Case 29-RC-1665
was filed the next day, February 5. An Agreement for Con-
sent Election was executed and approved on February 12
and the election was held on February 24. The results were
26 votes for Local 1199, 31 against. There were no void or
challenged ballots.
impression on February 2 hes in the fact that Miss Lopez was a new employee
and Mrs Blomberg's abrupt question frightened her.
Meanwhile, as announced on January 29 and again on
February 1, the $10 and $12 pay raises for unit employees
went into effect on February 7 and was received for the first
time by the employees during the week of February 14.
(Respondent's professional employees, i.e., its registered
nurses and licensed practical nurses, subsequently received
$10 raises effective March 15.)
Around February 10 Mrs . McCormack encountered
two nurses aides, Gricell Rodriguez and Ruby Brooks, on
the second floor of the home. Mrs. McCormack asked them
why Mrs. Rodriguez was wearing a union button. Mrs. Ro-
driguez replied that "they" gave it to her. Mrs. McCormack
reached for the button. Mrs. Brooks said, "Don't take the
button off. It means money for us." McCormack walked
away.
McManus and Mrs. Blomberg met regularly with the
Grievance Committee through July. The meetings were gen-
erally held monthly on the last Friday of the month. Two
meetings were held in June. Various subjects were brought
up at these meetings. For example, at the February 26 meet-
ing, the committee informed McManus that the employees
did not want to go to a merit raise system. McManus reject-
ed their request for a second break during certain shifts. He
told them their complaint that registered nurses and li-
censed practical nurses were not doing their fair share of the
work in caring for patients had.ment and promised to in-
struct the nurses to answer call signals along with the nurses
aides when they were not otherwise engaged. Insofar as the
broad range of subjects relating to the proper running of a
nursing home which were brought up at these meetings is
concerned, McManus' and Mrs. Blomberg's meetings with
the Grievance Committee were not unlike the meetings they
held with staff members generally. The major difference is
that McManus and Mrs. Blomberg dealt with the commit-
tee as the representative of all the employees insofar as
conveying its instructions to employees is concerned and
insofar as dealing with the complaints or suggestions of all
employees is concerned rather than dealing with the em-
ployees on a mass or individual basis. On August 19, during
the hiatus in the hearing of these cases, McManus posted a
notice on the bulletin board in the home that meetings of
the Grievance Committee are suspended until further no-
tice. Presumably, McManus and/or Mrs. Blomberg have
not met with it since.
McManus' reference to "Albany," i.e., the State of
New York, in his confrontation with Mrs. Fischer on Feb-
ruary 2 grew out of the nature of Respondent's operations.
Respondent's monthly charge for caring for a patient is
more than $900. Only a handful of its patients-some half
dozen or so-are able to pay in full. The remainder are
welfare cases who qualify for state aid if their total worth
is below $1,550. They pay what they are able, $100 on the
average, and the Department of Social Services of the State
of New York makes up the difference. The State does not
begin paying for a patient admitted to the home as a welfare
client until after it has completed its investigation of his net
worth and approved him for aid, a process which takes
several weeks. Once the patient has been approved, of
course, the State pays all the charges he has incurred greater
than what he has been able to pay from the beginning of his
SUNRISE MANOR NURSING HOME
stay at the home . The State pays Respondent on the basis
of bills submitted the first of each month for the preceding
month.
Respondent's new 80-bed facility filled up by the first
week in December . In early January approximately half of
the patients in the home were welfare cases who had not yet
received state approval . As of February 1 the State of New
York owed Respondent something over $30 ,000 for ap-
proved cases for which McManus could submit a voucher.
At the same time , the amount outstanding for as yet unap-
proved cases was an additional $30,000 , approximately.
(Respondent has not had a patient for whom it did not
ultimately collect in full because his case was disapproved
by the State .) Between January 19 and 29 , Respondent was
notified by the State that it had approved only five cases.
McManus called the problem of the arrearages owed Re-
spondent to the attention of the Department of Social Serv-
ices sometime during January. As a result he met with
officials of that department around February 15 at which
time he was assured that the outstanding cases would re-
ceive speedy approval and he could expect prompt payment
of the arrearages owed him. In early February he received
from the State the $30,000 which had been due him for
approved cases as of January 1. Around February 23, as a
result of his conference with state officials , he received the
other $30 ,000 due him for previously unapproved cases.
B. Analysis and Conclusions
1. Section 8(a)(2)
Respondent contended at the hearing (although the
point is not raised in its brief) that the Grievance Committee
is not a labor organization within the meaning of the Act.
It was admittedly formed for the purpose of acting as a
conduit between Desmond McManus and Virginia Blom-
berg and Respondent 's employees for the presentation of
employee grievances and the discussion of conditions of
employment and thereafter acted in that capacity. It is,
therefore , a labor organization within the meaning of Sec-
tion 2(5) of the Act. Utrad Corporation, 185 NLRB 434.
The Grievance Committee came into existence at the
suggestion of McManus and Mrs . Blomberg. Respondent,
in the person of Mrs . Blomberg, who remained in the room
while the initial members of the committee were elected,
participated in its formation. By so doing, Respondent as-
sisted a labor organization in violation of Section 8(a)(2)
and (1) of the Act. The General Counsel , however, would
go further. He argues that Respondent also violated Section
8(a)(2) by the manner in which it dealt with the Grievance
Committee in the series of meetings between McManus
and/or Mrs. Blomberg and the committee which began on
January 29 and that Respondent's whole course of conduct
in dealing with the Grievance Committee rises to the level
of domination rather than mere assistance . I disagree. I find
no basis in the record for concluding that Respondent did
not deal with the committee on an arm's length basis after
January 19. Cf. Pines of America, Inc., 178 NLRB 376. On
the contrary , with the exception of the meeting on January
29 when McManus first announced the pay raise found
violative below , all meetings with the Grievance Committee
were held after the election . The committee exercised its
1127
own judgment as to subjects it wanted to raise with Mc-
Manus and/or Mrs . Blomberg and as to its reaction and
response to subjects which McManus and /or Mrs. Blom-
berg wanted to raise with it. It did not act like Respondent's
creature but like a group of independent -minded employees
bent on their own and their colleagues' best interest. Cf.
FTS Corp. (Division of HITCO), 184 NLRB No. 91. In
concluding that Respondent 's violation of Section 8(a)(2) of
the Act is limited to its role in calling the Grievance Com-
mittee into existence and not to the manner in which it dealt
with it at the meetings of February 26 and thereafter, I have
not overlooked the fact that Respondent paid the members
of the committee for the time they spent at meetings. This
represented no additional benefit conferred on employees.
Respondent has always paid employees for time spent at
staff meetings . The key fact is that Respondent's purpose in
initiating the Grievance Committee was to substitute meet-
ings with the committee for meetings with the staff as a
whole . It had no right to foist such representation on its
employees . However , it did not forfeit its right to deal with
its employees so that every postelection effort it made
through the Grievance Committee to cope with problems of
mutual interest to management and employees became ille-
gal.
2. Section 8(a)(1)
When McManus announced a pay raise at the Feb-
ruary 1 staff meeting he said that he was doing so because
the employees had "pushed his back to the wall." When
coupled with the fact that only employees in job classifica-
tions which Local 1199 was seeking to organize were includ-
ed in that raise , this statement can only be interpreted as an
admission that Respondent gave the raise because its em-
ployees were engaged in union activities. Moreover,
Respondent 's explanation of its reason for granting a raise
at that time does not hold water . It claims it decided to take
a calculated risk that its cash position would improve in
order to keep faith with its employees. I have no doubt that
McManus intended to give another raise as soon as opera-
tions in the new building got past the shakedown stage, thus
making a raise economically feasible . His promise to the
employees at the time of the move that he would do so
brought on the unrest which led to Local 1199's arrival on
the scene. However, the meeting with New York State offi-
cials which ultimately broke the logjam of payments to
Respondent for the bulk of its welfare patients did not take
place until February 15. McManus first announced the raise
on January 29. He could have had no reasonable expecta-
tion at that time that his financial problem would be solved
so soon that it was economically feasible to announce a
raise on January 29, absent an antiunion motive . By giving
a raise at the time it did for the reason it did, Respondent
violated Section 8(a)(1) of the Act . Cf. The Deutsch Compa-
ny, Metal Components Division, 178 NLRB 616.
Respondent also violated Section 8 (a)(1) by interrogat-
ing its employees about their union activities when:
(1) Mrs. Blomberg asked Barbara Clarke and Maureen
Connor a day or two after January 14 whether they had
been approached about the Union;
(2) Clara McCormack asked a group of nurses aides on
1128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
February 1 why, having gotten a raise, they wanted the
Union;
(3) Mrs. Blomberg asked Evelyn Lopez on February 2
"What's that?" when she noticed a Local 1199 button on
Miss Lopez' dress, and
(4) Mrs. McCormack asked Gricell Rodriguez and
Ruby Brooks around February 10 why Mrs. Rodriguez was
wearing a Local 1199 button.
In addition, McManus and Mrs. Blomberg interrogat-
ed June Fischer and threatened her with reprisals for her
union activities on February 2 when they summoned her to
the office and argued with her about the Lopez incident.
This, too, was an independent violation by Respondent of
Section 8(a)(1) of the Act.
3. Section 8(a)(5)
a. Majority
On February 4, Edward Kay, the Union's organizer,
and some 20 or 25 of Respondent's employees met with
Desmond McManus, Respondent's administrator, in Mc-
Manus' office. Kay demanded McManus recognize the Un-
ion as the collective-bargaining representative of a unit of
Respondent's nurses aides, housekeepers, maintenance em-
ployees, and kitchen employees, a unit admitted by Respon-
dent to be appropriate for bargaining and found to be
appropriate by the Regional Director when he approved the
Agreement for Consent Election in Case 29-RC-1665. Kay
offered to prove the Union's majority in such a unit by
showing McManus the 42 authorization cards he had in his
possession . There were in Respondent's employ on that day
59 persons whose jobs put them in such a unit. (The parties
stipulated as to 58. The 59th is one William Dunphy, whose
name appears on the payroll for the period ending February
6 and who the General Counsel contends is an irregular
part-time employee who lacks a community of interest with
unit employees. The only evidence in the record about Dun-
phy is the entries which appear after his name on the pay-
roll. On the basis of that evidence I find that Dunphy, on
February 4, was a regular part-time employee and, there-
fore, included in the unit.)
Two of the forty-two cards which Kay had in his hand
on February 4 bore the name of Judy Reddick. One of these
was unsigned and undated. Two others bore the names of
persons not in the unit. (They were apparently signed by
licensed practical nurses .) Thus the Union had a potential
majority of 39 out of 59 employees. Of the 41 persons whose
names appeared on Kay's 42 cards, 38 were called as wit-
nesses by the General Counsel to authenticate their cards.
At the conclusion of one witness' testimony, the General
Counsel elected not to offer her card into evidence. The
General Counsel also called the mother of the one unit
employee who did not appear to identify her daughter's
signature. I rejected that card on the ground that it had not
been properly authenticated. The two persons whose names
are not on the list of employees in the unit on February 4
did not appear. Thus 38 cards, including two bearing the
name of Judy Reddick, were received into evidence.
Respondent objected generally to all the authorization
cards on the ground that they had been obtained through
misrepresentation . The only evidence of-misrepresentation
in the course of the Union' s organizing campaign which
might conceivably invalidate the cards was the statement by
June Fischer, the Union's leading adherent among
Respondent's employees, during the January 19 staff meet-
mg that a certain number of places in the nursing course of
a nearby community college are reserved for members of
the Union. This is not true, as Virginia Blomberg,
Respondent's director of nursing services, promptly learned
by a telephone call to the head of the school. The school
gave Mrs. Blomberg a letter which so stated. Mrs. Blomberg
had copies of the letter posted on bulletin boards in the
home and distributed to employees. Therefore, any effect,
speculative at best, which Mrs. Fischer' s statement might
have had on the minds of prospective card signers was soon
dissipated by Respondent's rapid dissemination of the
truth. I find it insufficient to tamt any of the cards relied on
by the Union as proof of its majority on February 4.
Respondent contends that "a material misrepresenta-
tion of fact and law" occurred when Mrs. Fischer told sever-
al employees who were concerned about getting fired for
engaging in union activity that signing the card would pro-
tect them against that eventuality. While it is true, as Re-
spondent argues, "that an employee cannot be fired because
he signed a card, it is not true that an employee cannot be
fired once he has signed a card" and that Mrs. Fischer did
not make such a distinction, her failure to do so does not
invalidate the cards of the women to whom she spoke in this
vein. The record clearly establishes that each signed because
she wanted to authorize Local 1199 to represent her and not
because she sought to insulate herself from a discharge for
reasons unconnected with her signing of the card.
Eight of the cards are undated, but, in each instance,
there is other evidence in the record, either the testimony of
the signer that it was signed before February 4, the testimo-
ny of Kay that he had the executed card with him on Feb-
ruary 4, or, in the case of Judy Reddick, the existence of a
subsequent dated card on the basis of which I find that all
38 were filled in and returned to the Union by unit employ-
ees prior to the Union's demand for recognition on Feb-
ruary 4. Eight of the 38 cards require special consideration.
Mrs. Blomberg testified that Dorothy Rindfleisch, a
nurses aide and a member of the Union when whe worked
at another nursing home, telephoned her on the morning of
January 19 and complained that she was being harrassed to
join the Union even though she did not want to . Mrs. Blom-
berg urged Mrs. Rindfleisch to attend the staff meeting
scheduled for that day. During the meeting, according to
Mrs. Blomberg,. Mrs. Rindfleisch started to speak against
the Union, was interrupted by Mrs. Fischer, and was driven
to tears in the ensuing argument. However, Mrs. Rind-
fleisch signed her card sometime after January 19 and be-
fore January 29. She testified that she received it from Mrs.
Fischer, took it home with her where she signed it of her
own free will, and returned it to Mrs. Fischer the next day.
(She was not asked about her role in the January 19 meet-
ing.) Her card is, therefore, untainted.
Evelyn Lopez began working for Respondent as a nur-
ses aide on February 1 andjigned a card for the Union the
same day. Mrs. Blomberg testified that Miss Lopez told her
on February 2 she had signed when Mrs. Fischer shoved a
card in her face and she did not know what it was all about.
However, I credit Miss Lopez' testimony, confirmed by
SUNRISE MANOR NURSING HOME 1129
Mrs. Fischer, that Mrs. Fischer asked her if she wanted to
join the Union, she indicated that she did, and Mrs. Fischer
thereupon gave her a card which she read, filled in, and
returned. Mrs. Lopez' card is, therefore, also a valid one.
Janet Short, Respondent's supervisor of nurses on the
day shift, testified that she came upon two nurses aides,
Anna Slawkawski and Joan Stoehrer, in a distraught condi-
tion on February 4. When she asked what was wrong, they
told her Mrs. Fischer had threatened them in order to get
them to go to the Kay-McManus meeting being held that
day even though they did not want to get involved. Mrs.
Slawkawski and Mrs. Stoehrer both signed cards in Janu-
ary. Both testified that they had elected to sign for the
Union of their own free will and had not been threatened
by Mrs. Fischer on February 4. (Neither was asked about
a conversation with Mrs. Short on February 4.) Both of their
cards are, therefore, valid designations of the Union as their
collective-bargaining representative.
Regina Smith, a housekeeper, testified the nurses aide
who solicited a card from her told her that everyone else had
already signed. Such a statement does not invalidate her
card. Boyer Bros., Inc., 170 NLRB 1108 (fn. 2), affd. 448
F.2d 555 (C.A. 3).
Helen Newkirk, a nurses aide, testified that she was
told, when she signed an authorization card, that a union
representative would answer later the questions she posed
to June Fischer when Mrs. Fischer gave her the card. Her
testimony does not establish that she considered her signing
of the card a mere request for information and not, as the
card states on its face, an application for membership in
Local 1199 and authorization for it to represent her in col-
lective bargaining. Even if she did, her card would still be
valid. N.L.R.B. v. Boyer Bros., Inc., 448 F.2d 555 (C.A. 3).
The Union's authorization card contains a blank near
the top which is labeled "My name is" and two at the
bottom which are labeled "Signature" and "Date." Both
Charles Gibbs, a kitchen employee, and Irene Rasi, a nurses
aide, failed to sign and date their cards. Gibbs entered his
name in cursive writing in the "My name is" blank, Mrs
Rasi lettered her name. (The unsigned, undated card of
Judy Reddick is like Gibbs' in this respect.) Each intended
to designate the Union as his collective-bargaining repre-
sentative. Both cards are, therefore, valid designations of
the Union as the collective-bargaining representative of unit
employees. Crawford Manufacturing Co., 161 NLRB 989.
1018 (fn. 29).
On the basis of the 38 authorization cards which were
received into evidence, I find that the Union represented a
majority of 37 of Respondent's 59 unit employees when it
demanded recognition on February 4.
b. The Gissel principle
That the unit for .which Edward Kay sought recogni-
tion when he visited McManus in the latter's office on Feb-
ruary 4 is an appropriate one is evidenced by Respondent's
agreement to it and the Regional Director's approval of it
in Case 29-RC-1665. That what transpired between Kay
and McManus that day was legally a demand for recogni-
tion and a refusal thereof is self-evident. Therefore, all the
prerequisites for bargaining , i.e., a demand for recognition
by Local 1199 in a unit appropriate for collective bargaining
a majority of which is represented by the Union, are present
here. Whether McManus' refusal to recognize Local 1199
on February 4, in the context of Respondent's other unfair
labor practices, constitutes a violation by Respondent of
Section 8(a)(5) of the Act and whether a bargaining order
should be entered turn on the principle laid down in the
Gissel case, supra.
The Supreme Court's guideline for issuance of a bar-
gaining order where the union's right to represent employ-
ees is based on the union's securing authorization cards
from a majority of the employees is that a bargaining order
should issue "[i]f the Board finds that the possibility of
erasing the effects of past practices and of ensuring a fair
election (or a fair rerun) by the use of traditional remedies,
though present, is slight and that employee sentiment once
expressed through cards would, on balance, be better pro-
tected by a bargaining order." Here, the principle unfair
labor practices which Respondent has committed are assist-
ance to the Grievance Committee and the granting of a pay
raise in order to undermine Local 1199. The traditional
remedy for the former is a withdrawal of recognition unless
and until the Grievance Committee is certified as the em-
ployees' collective-bargaining representative. The tradition-
al remedy for the latter is simply to cease and desist from
such conduct in the future, without, however, rescinding the
raise already granted. Neither, in my opinion, is sufficient
to erase the effect of what Respondent did. A cease-and-
desist remedy and the passage of a little time might conceiv-
ably erase the effects of the relatively mild 8(a)(1) interroga-
tion and threats which Respondent also committed. The
employees will not, however, soon forget that their efforts
to organize under the banner of a union of their own choos-
ing resulted in their being represented by a labor organiza-
tion of Respondent's choosing and a bribe to persuade them
to forego their statutory rights. Reinforcing the lingering
effect of Respondent's actions is the fact that the two viola-
tions are entwined. Respondent granted a pay raise to in-
duce its employees to give up Local 1199. Simultaneously it,
in effect, informed them that the only acceptable way, in
Respondent's view, for them to deal with Respondent was
through the Grievance Committee, a labor organization
which eschewed the help of professional negotiators. This
was a restriction on the Section 7 right to organize which
severely limited the power of Respondent 's employees in
dealing with management in the free collective bargaining
between equals contemplated by the Act. I conclude, there-
fore, that the totality of Respondent' s Section 8(a)(1) and (2)
unfair labor practices brings this case within the Gissel
guideline. Respondent has refused to bargain with Local
1199 in violation of Section 8(a)(5) and (1) of the Act. A
bargaining order should issue . Isaac Putterman, d/b/a Rock-
ville Nursing Center, 193 NLRB 959; Escondido Ready-Mix
Concrete, Inc., 189 NLRB 442; Colonial Knitting Corp., 187
NLRB 980.
III THE OBJECTIONS TO THE ELECTION
The objections to the February 24 election which were
referred to me are that Respondent granted its employees
wage increases in order to persuade them to vote against the
Union and that it committed "others acts" which prevented
1130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the holding of a free and fair election. I have found that
Respondent granted a pay raise which began February 7 for
that purpose and that it interrogated employees around
February 10 . Both events took place after the filing of the
petition in Case 29-RC-1665 on February 5 and before the
election . Both interfered with the holding of a free and fair
election . I recommend, therefore , that the election held in
Case 29-RC-1665 on February 24, 1971, be set aside and
that, in conformity with my recommendations below in
Case 29-CA-2301, all proceedings in Case 29-RC-1665 be
vacated. Escondido Ready-Mix Concrete, Inc., supra, Case
29-RC-1665 is hereby severed and transferred to the Direc-
tor of Region 29 for further processing pursuant to the
Board's Rules and Regulations , Series 8 , as amended.
Upon the foregoing findings of fact, and upon the en-
tire record in these cases, I make the following:
CONCLUSIONS OF LAW
1. Eugene and Veronica McManus , Co-Partners d/b/a
Sunrise Manor Nursing Home, is an employer engaged in
commerce within the meaning of Section 2 (6) and (7) of the
Act.
2. Local 1199, Drug and Hospital Union, Retail,
Wholesale Department Store Union) AFL-CIO, and the
Grievance Committee are labor organizations within the
meaning of Section 2 (5) of the Act.
3. All aides, housekeeping , maintenance and kitchen
employees of Respondent , employed at its nursing home in
Bay Shore , New York, excluding office clerical and profes-
sional employees, registered and licensed practical nurses,
therapists , guards , and supervisors within the meaning of
the Act constitute a unit appropriate for the purpose of
collective bargaining within the meaning of Section 9(b) of
the Act.
4. At all times on and after February 4, 1971, Local
1199 has been and is now the representative for the purpose
of collective bargaining of the employees in the unit de-
scribed above within the meaning of Section 9(a) of the Act.
5. By refusing, on February 4, 1971 , to recognize Local
1199 as representative for the purpose of collective bargain-
ing of the employees in the unit described above and by
refusing at all times thereafter to recognize and bargain with
Local 1199 , Respondent has violated Section 8(a)(5) and (1)
of the Act.
6. By initiating the formation on January 19, 1971, of
a labor organization to represent its employees, Respondent
has violated Section 8 (a)(2) and (1) of the Act.
7. By announcing a pay raise to its employees on Janu-
ary 29 and February 1, 1971, and putting it into effect on
February 7, 1971, in order to induce its employees to aban-
don their union activities , by interrogating its employees
about their union activities and the union activities of other
employees on or about January 14 and February 1, 2, and
10, 1971, and by threatening an employee with reprisals for
her union activities on February 2, 1971, Respondent has
violated Section 8(a)(1) of the Act.
8. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
9. The allegation of the complaint that Respondent
violated Section 8(a)(1) of the Act by granting its employees
benefits and improvements in their working conditions and
terms of employment other than the pay raise referred to
above has not been sustained.
THE REMEDY
In order to effectuate the policies of the Act, it is neces-
sary that Respondent be ordered to cease and desist from
the unfair labor practices found and remedy them. For the
reasons already indicated , I will recommend that Respon-
dent be required to recognize and bargain with Local 1199
as the duly designated representative of its employees and,
if an understanding is reached , embody it in a signed agree-
ment. Since I have found that Respondent assisted but did
not dominate the Grievance Committee, I will not recom-
mend that it disestablish the Grievance Committee but
merely that it withdraw its recognition of the committee and
cease dealing with it as the representative of its employees
until such time as the Grievance Committee is certified by
the Board as their collective-bargaining representative. In
view of my recommendation of a bargaining order rather
than a new election in Case 29-RC-1665, the practical ef-
fect will be the same since recognition of Local 1199 as the
exclusive bargaining representative of its employees will
perforce preclude Respondent from recognizing and deal-
ing with the Grievance Committee so long as the relation-
ship between Respondent and Local 1199 continues.
Finally, I will recommend that Respondent be required to
post appropriate notices. It is not necessary, in order to
remedy the unfair labor practices which Respondent com-
mitted by announcing and granting a pay raise to its em-
ployees , that the raise which became effective on February
7, 1971, be rescinded . Therefore , I will not make such a
recommendation.
[Recommended order omitted from publication.]