Twilight Haven, Inc.

National Labor Relations Board - Board Decisions

May 2, 1978

235 N.L.R.B. 1337 (N.L.R.B. 1978)

TWILIGHT HAVEN, INCORPORATED
Twilight Haven, Incorporated and Hospital and Insti-
tutional Workers Union, Local 250, SEIU, AFL-
CIO. Cases 32-CA-189 (formerly 20-CA-12692)
and 32-RC-22 (formerly 20-RC-14003)
May 2, 1978
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
On December 14, 1977, Administrative Law Judge
William J. Pannier III issued the attached Decision
in this proceeding. Thereafter, Respondent filed
exceptions and a supporting brief, the General
Counsel filed an answering brief, and the General
Counsel and Petitioner filed limited cross-exceptions
and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions, cross-
exceptions, and briefs and has decided to affirm the
rulings, findings,' and conclusions of the Administra-
tive Law Judge and to adopt his recommended
Order, as modified below. 2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
modified, below and hereby orders that the Respon-
dent, Twilight Haven, Incorporated, Fresno, Califor-
nia, its officers, agents, successors, and assigns, shall
take the action set forth in the said recommended
Order, as so modified:
Insert the following paragraph after the final
paragraph of the Order:
"IT IS FURTHER ORDERED that the objections to the
conduct of the election filed by Petitioner in Case
32-RC-22 be sustained; that the election be set
aside; and that the petition in Case 32-RC-22 be
dismissed."
Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to credibili-
ty unless the clear preponderance of all of the relevant evidence convinces
us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91
NLRB 544 (1950). enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully
examined the record and find no basis for reversing his findings. We also
find totally without merit Respondent's allegations of bias and prejudice on
the part of the Administrative Law Judge, nor do we perceive any evidence
that the Administrative Law Judge prejudged the case, made prejudicial
rulings, or demonstrated a bias against Respondent in his analysis or
discussion of the evidence. Furthermore, we find no merit in Respondent's
235 NLRB No. 200
contentions relating to the failure of the Adrministrative Law Judge to make
any findings with respect to Employer's Exh. I, the inventory control chart.
on which the Administrative Law Judge apparently decided to place no
reliance. In our view, a careful examination of Employer's Exh. I, and in
particular an analysis of the entry dates on the chart and a comparison of
the writing on the chart with handwriting on other exhibits submitted as part
of the record, raises very serious questions concerning the validity of that
exhibit.
2 We find merit in the General Counsel's and Petitioner's exceptions to
the Administrative Law Judge's apparent inadvertent failure to recommend
that the election in Case 32-RC-22 be set aside, although he found the
unfair labor practices committed by Respondent sufficient to warrant the
issuance of a bargaining order. Accordingly, we will order that the election
be set aside.
The General Counsel and Petitioner have also excepted to the Adminis-
trative Law Judge's failure to authenticate and count three authorization
cards submitted at the hearing. In light of our disposition herein, we find it
unnecessary to rule on their authenticity.
DECISION
STATEMENT OF THE CASE
WILLIAM J. PANNIER III, Administrative Law Judge:
These cases were heard by me at Fresno, California, on
September 6 through 8, 1977.1 A complaint and notice of
hearing in Case 32-CA-189 (formerly Case 20-CA-12692)
was issued on May 18, by the Regional Director for Region
20 of the National Labor Relations Board, on the basis of
an unfair labor practice charge filed March 30, alleging
violations of Section 8(a)(1) and (3) of the National Labor
Relations Act, as amended, 29 U.S.C. § 151, et seq., herein
called the Act. Thereafter, the charge was amended on
June 14 and, again, on July 12, with the result that, on
August 4, the said Regional Director issued an amended
complaint and notice of hearing, alleging violations of
Section 8(a)(1), (3), and (5) of the Act. Finally, on May 24,
the said Regional Director issued a report on objections;
order consolidating cases; and notice of hearing, consoli-
dating for hearing with Case 32-CA-189 the objection in
Case 32-RC-22 (formerly Case 20-RC-14003) that Twi-
light Haven, Incorporated "interfered with, restrained,
and/or coerced its employees in the exercise of their rights
guaranteed by Section 7 of the Act."
All parties have been afforded full opportunity to appear,
to introduce evidence, to examine and cross-examine
witnesses, and to file briefs. Based on the entire record,2 the
briefs filed on behalf of the parties, and my observation of
the demeanor of the witnesses, I make the following:
FINDINGS OF FACT
I. JURISDICTION
At all times material, Twilight Haven, Incorporated,
herein called Respondent, has been a California corpora-
tion, with its principal place of business in Fresno,
California, where it has been engaged in the operation of a
nonprofit home for the aged and a hospital facility. During
the past year, Respondent, in the course and conduct of its
business operations, received gross revenues in excess of
$250,000, and received revenues in excess of $50,000 from
Medi-Care and Medi-Cal. Therefore, at all times material,
Unless otherwise stated, all dates occurred in 1977.
2 The General Counsel's unopposed motion to correct the transcript is
granted, and the record is hereby corrected.
1337
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent has been an employer engaged in commerce
and in operations affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
At all times material, Hospital and Institutional Workers
Union, Local 250, SEIU, AFL-CIO, herein called the
Union, has been a labor organization within the meaning
of Section 2(5) of the Act.
III. ISSUES
I. Whether, in December 1976 and January 1977,
Respondent, through Administrator Robert Butterfield,
interrogated employees about their membership in and
activities on behalf of the Union, in violation of Section
8(a)(l) of the Act?
2. Whether, on March 21, Respondent terminated, and
thereafter refused to reinstate, cook Pauline Gruenwald
because of her membership in or activities on behalf of the
Union or because she engaged in other concerted activities
for purposes of collective bargaining or other mutual aid or
protection, in violation of Section 8(a)(3) and (1) of the
Act?
3. Whether any unfair labor practices committed by
Respondent constituted conduct sufficient to warrant
setting aside the election conducted in Case 32-RC-22;
and, if so, whether, additionally, those unfair labor prac-
tices were so serious and substantial in character and effect
as to find that Respondent violated Section 8(a)(5) and (1)
of the Act by refusing to bargain collectively with the
Union?
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
In October 1976, as a result of discussions among the
dietary employees, cook Estella Bolton contacted a union
regarding representation. A meeting was then held at cook
Pauline Gruenwald's home. Thereafter, when jurisdiction
over the types of employees employed at Respondent's
facility was transferred from the union which had been
contacted by the employees to the Union, Gruenwald had
been the employee to whose home the Union's officials
first came to announce this change. She also had been the
employee with whom the union's business representative
and organizer, Elsie Moore, had conferred regarding
arrangements for a meeting with the employees. By the end
of 1976, the Union had solicited authorization cards from
the employees, and the General Counsel submitted 31
signed cards, contending that all had been signed prior to
January 1.
By at least December 28, 1976, Respondent had become
aware of the organizing campaign. It issued a two-page
3 According to Butterfield, this letter had been issued in response to a
union poster which had been brought to him by an employee who had
explained that it had been posted in the women's bathroom. However, while
Butterfield described the poster as being "a typical sort of union thing,"
Business Representative Moore testified that the Union had not dispatched
any flyers to Respondent's employees prior to January 3. Respondent
neither produced the poster which Butterfield claimed had been brought to
him, nor was the failure to produce it explained by Respondent. Further,
letter to all employees bearing that date and explaining
Respondent's version of the effects of signing cards.
3 In
addition, several employees testified to conversations with
Administrator Butterfield pertaining to the Union's cam-
paign. Thus, morning cook Gladys Mitchell, who had been
working for Respondent since only November 11, 1976,
testified that, in late 1976 or early in the following year,
Butterfield had inquired if she had heard anything about a
union, to which she had responded in the negative,
pointing out that "I'd only been there a short while."
Butterfield denied ever having participated in a conversa-
tion with Mitchell concerning authorization cards or the
Union. However, he did not dispute, other than in the most
general terms, the testimony of nurses aide Erma Lee
Mahaffey to the effect that, during a meeting which she
had requested with him to discuss her desire to recover the
authorization card which she had signed, he had asked why
she wanted the card returned and had inquired about the
identity of the person who had given her the card and
whether "other girls had signed the cards." 4
Annual performance evaluations are normally prepared
in early January. As part of this process, Butterfield
conducts individual meetings in his office with employees
who are evaluated. Three employees - Gruenwald, Bol-
ton, and nursing attendant Pat Mikel, whose employment
with Respondent had ceased in July - described the
substance of their separate early January meetings with
Butterfield. All three related that Butterfield had asked if
they liked or were happy with their jobs. Further, when
each answered affirmatively, all three related that Butter-
field had then questioned them about the Union and its
campaign. Thus, Mikel testified that Butterfield had asked
if she was aware that a union was attempting to organize,
to which she had replied affirmatively, adding that she was
"listening to both sides, and that I hadn't made up my
mind yet." According to Mikel, Butterfield had then said
that, based upon his experience, a union only took
employees' money without affording them representation,
and that Respondent was too small "to be bothered with
the Union" as "[w]e could settle our own problems."
Bolton testified that he had asked what she thought about
the Union, and that she had responded that she did not
believe that the Union "will come in here." Gruenwald
testified that Butterfield had queried, "Well, what have you
heard about a union?" In response, testified Gruenwald,
she had said that she had heard "rumbles and rumors," but
"at my age, who wants to be bothered." All three of these
witnesses also testified that, after hearing their responses,
Butterfield had then reviewed their evaluations and ad-
vised them of the amounts of their increases.
In general, Butterfield denied having ever interrogated
employees, pointing out that "I've had several labor
relations classes before, and you just don't do that - it's an
unfair labor practice." Yet, in testifying concerning the
both Bolton and Gruenwald testified that they had never seen any union
posters in the bathroom during December 1976. Respondent produced no
employees to controvert their testimony in this regard and to corroborate
Butterfield's assertion that one existed. In fact, Butterfield was not able to
identify the employee who purportedly had brought the poster to him.
4 During their conversation, Butterfield had assured Mahaffey, in
response to her recitation of what her husband had said to her, that her job
would not be jeopardized because she had signed a card.
1338
TWILIGHT HAVEN, INCORPORATED
specific conversations with these three employees, the
certainty of his denial diminished appreciably. For exam-
ple, in denying the remarks attributed to him by Gruen-
wald, he did not rely upon his recollection of their meeting.
Rather, he relied upon his normal comments to employees
during evaluation meetings:
No, I did not, because of the many people that I go
through, many of the employees, I kind of have a more
or less standard procedure as to asking them about the
evaluation itself - do you understand what has been
said, do you agree with it. We go over the areas of
improvement, if you will, or outstanding areas, and
then I tell them that I feel that they're doing a good job
if it's indicated, and tell them what their raise will be.
He did respond negatively when asked if he had
interrogated Bolton about what she thought of the Union,
if he had made any statements to her regarding the Union,
if he had made any statements to her regarding authoriza-
tion cards, and if she had said, in essence, that she did not
feel that a union would successfully organize Respondent's
employees. However, this sequence of questions and
answers occurred only after he had testified initially that he
did not recall having discussed the Union with Bolton
during the evaluation meeting and did not recall having
asked her what she thought about the Union. It was after
the specific questions pertaining to his conversation with
Bolton that he was then called upon to testify regarding the
remarks attributed to him by Mikel. This time he respond-
ed immediately by denying having asked her about the
Union, having discussed authorization cards or the Union
with her in any regard, and having told her of his
experience, and that all unions wanted was the employees'
money.
On January 11, the Union mailed letters to Butterfield
and to Respondent's then-President David Arnst, demand-
ing recognition.5 Delivery of the letter addressed to
Butterfield was refused on January 14. However, on the
following day, Arnst - who, so far as the record discloses,
had not had the benefit of labor relations classes -
accepted the letter addressed to him and then turned it
over to Butterfield. Respondent did not reply to that letter.
Thus, on January 14, the Union filed the petition in Case
32-RC-22, and, on February 15, the Regional Director for
Region 20 approved a Stipulation for Certification Upon
Consent Election in which the parties agreed to an election
on March 24 in a unit of all housekeepers, janitors, laundry
workers, maids, porters, gardeners, cooks, kitchen aides,
dishwashers, dietary aides, nurses aides, and orderlies;
excluding all registered nurses, licensed vocational nurses,
office clerical employees, engineers, guards, and supervi-
sors as defined in the Act.
During the period prior to the election, three sequences
of events transpired which are of significance to this
s In this letter, the Union demanded recognition as the representative of
the employees in a unit consisting of "Housekeeping Department, including
housekeepers, janitors, laundry workers, maids, porters; Dietary Depart-
ment, including cooks, kitchen aids [sic]. dietary aids [sic], dieticians,
dishwashers; Nursing Department, including LVN's, nurses aides, and
orderlies; excluding registered nurses, supervisors, office clerical [sic ,
guards, watchmen, and engineers as defined in the Act."
proceeding. First, Respondent conducted a campaign
involving both oral comments and literature describing,
inter alia, the violence which accompanied union cam-
paigns in general and the Union's past dealing with
employers in particular.
Second, there was discussion among supervisory person-
nel concerning the extent of Gruenwald's participation in
the organizing effort. Thus, former Dietary Supervisor
Debbie Himes6 testified that, in early January, Butterfield
had asked what she knew about "this union business that
was going around" and if she knew who was involved.
When, testified Himes, she had acknowledged awareness of
union talk and, further, that "all the girls in the kitchen
were involved," Butterfield had interjected "that he knew
that Pauline Gruenwald and Estella Bolton and Pat Mikel
had something to do with it." According to Himes, their
conversation had ended with Butterfield directing her to
"try to dissuade the girls in the kitchen against union
organizing."
Ultimately, Butterfield denied having participated in a
conversation with Himes in which he had said, in essence,
that he was aware that Gruenwald, Bolton, and/or Mikel
were involved in soliciting authorization cards. However,
to the extent that this constituted a denial of the remarks
attributed to him by Himes, its effect was diminished by his
contention that "I did not, because I did not know who was
involved in whatever their activities were." Thus, his denial
was predicated less on precise recollection as to what he
had not said to Himes and more on inability to have made
such a statement due to purported lack of knowledge as to
which employees were active on behalf of the Union.
Moreover, his denial was further diminished, as had been
the case with his denials of the remarks attributed to him
by Bolton, by his own earlier testimony that he could not
recall having discussed the Union with Himes in early
January. In this case, Butterfield conceded that it was
possible that he had done so.
That Gruenwald was at least one of Respondent's
suspected union proponents was amply illustrated by the
undisputed comments of Nursing Supervisor Carol Wil-
son,7 who, in February, had asserted that she knew that the
kitchen employees were behind the Union's campaign, and
that Respondent could possibly defeat the Union if it could
garner the support of the employees. During that conversa-
tion, Wilson had singled out Gruenwald, saying "And that
skinny long-legged thing, Pauline, you know, if you'd get
her fired, we'd be all right."
The third sequence of events pertained to the prophetic
nature of Wilson's remark, for, on March 21, Butterfield
terminated Gruenwald, setting forth on her "NOTICE OF
CHANGE IN EMPLOYEE STATUS" form, by way of
"EXPLANATnON," "Pauline Gruenwald physically sat on a
fellow employee and intimidated or threatened that em-
ployee. The employee that was threatened was in tears due
to this action. Pauline in doing this left her work station 3
6 Respondent agreed that, while it had employed Himes. she had been a
supervisor within the meaning of Sec. 2(11) of the Act and an agent of
Respondent.
I Respondent agreed that, at all times material, Wilson had been a
supervisor within the meaning of Sec. 2(1 I) of the Act and an agent of
Respondent.
1339
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
times or more during the day to intimidate this employee."
The purported incident to which this comment refers took
place on the preceding day, Sunday, March 20.
The employee referred to in the notice had been
housekeeping employee Virginia Buchnoff, who testified
that while she was sitting in the laundry room waiting for
the washing machine to complete its cycle Gruenwald had
entered, had sat on her lap, and, while shaking her finger in
Buchnoff's face, had "told me that Thursday the 25th [sic],
the day of the election, was my day off, and I shouldn't
come in and vote no. I should stay away from the place,
because my vote would kill her vote." According to
Buchnoff, Gruenwald had repeated this remark two or
three times before getting off Buchnoff's lap. However,
testified Buchnoff, when she also had risen, Gruenwald had
"cornered" her by the dryer - with Buchnoff "in the crux
of her elbow" of Gruenwald's left arm which had been
resting at shoulder's height on the dryer and with Gruen-
wald using her right arm and hand to continue shaking her
finger in Buchnoff's face - and had continued to repeat
her admonition two or three additional times before
departing. Buchnoff testified that she had been scared and
had begun to cry while "cornered" in front of the dryer.
While the two women had been in front of the dryer,
housekeeping employee Amanda Orona had entered the
laundry room. Essentially, Orona described Gruenwald's
posture and comments as had Buchnoff, adding that she
had quickly withdrawn from the room, since "I couldn't
take it, you know."
Gruenwald described the incident somewhat differently.
She testified that, while sitting in the restroom/locker room
on her break, Orona had reported that Buchnoff was in the
laundry room, "bawling" and "upset because of this
coming election and this union thing." Gruenwald testified
that she had then gone to the laundry room to console
Buchnoff, in the process sitting on Buchnoff's lap and
telling her that the election was not worth the upset; that
Buchnoff could vote as she wished; and that she could
simply stay home and not vote at all, since Thursday was
her day off. According to Gruenwald, she had then left the
room but had returned a few minutes later with a cup of
coffee for Buchnoff after having been told by Orona, "Boy,
Virginia is really bawling now." When Gruenwald offered
the coffee to Buchnoff, it was rejected, according to
Buchnoff, because the offer of coffee had only served to
frighten her further, although she conceded that all that
Gruenwald had said was, "Drink this. It'll calm your
nerves."
Shortly thereafter, Buchnoff had left the main building
and had gone to the nearby efficiency building to retrieve a
load of clothes from the dryer located there. As she had
been leaving the efficiency building to return to the main
building, she again had encountered Gruenwald, who had
said that she wanted to talk to Buchnoff. However,
Buchnoff had told Gruenwald to "get away" from her, and,
according to Buchnoff, Gruenwald had then followed her
back into the main building but had turned off to enter the
kitchen before Buchnoff had reached the nearby laundry
room. Gruenwald agreed that she had encountered Buch-
noff outside of the efficiency building but testified that she
had gone there to obtain coffee for the main building
kitchen, and that, after being rebuffed by Buchnoff, had
entered the efficiency building to complete her errand. She
denied having followed Buchnoff back into the main
building, although Orona testified that she had observed
Gruenwald walking behind Buchnoff down the hallway of
that building during the afternoon.
Prior to Buchnoff's trip to the efficiency building, Linda
Shamoon and Mildred Logan had been in the laundry
room with Buchnoff. Butterfield testified that, on the
following morning, Wilson had reported that Logan had
brought to her attention that an employee had been
physically upset the preceding day, and that he had then
spoken with Logan, who had related that Gruenwald had
physically abused, threatened, and intimidated Buchnoff
on March 20. However, neither Logan nor Wilson were
called as witnesses to corroborate Butterfield's testimony
or to describe what they had reported to him. Butterfield
spoke with Buchnoff about the incident, asking her to
prepare a written account of what had transpired. Further,
as Buchnoff had said that Orona had witnessed it, he then
had spoken with her, making a similar request for prepara-
tion of a written account. Thereafter, he had directed the
bookkeeper and office manager, Don Burns, to summon
Gruenwald to the office. According to Burns and Butter-
field, the latter had related to Gruenwald what had been
reported to him, but, though invited to respond with her
own description, Gruenwald had sat largely mute, and
Butterfield had then terminated her. Gruenwald, however,
testified that, when Butterfield had said that it had been
reported that she had been "harassing and threatening
people," she had demanded to know their identities; and,
when Butterfield had named Buchnoff, that she had
responded, "My gosh, I went to her to console her as a
friend. I did not harass her. I didn't threaten her. I went in
there as a friend." According to Gruenwald, Butterfield
had then said that he had a witness, identifying Orona in
response to Gruenwald's further query, and had said that
he was firing Gruenwald. She testified that she had replied
at this point, "Well, I deny all this, but I'm not going to sit
here and argue with you."
Approximately 2 hours after discharging Gruenwald,
Butterfield convened a meeting of dietary employees at
which he announced that Gruenwald had been terminated
for "physical abuse and her outrageous conduct toward a
fellow employee," adding that he would not tolerate such
conduct regardless of the objective. On the following day,
he summoned Bolton and cook Frieda Ollech to his office
where he told them that he understood that they were upset
over Gruenwald's termination and had inquired concern-
ing the reason. Ollech retorted that she was not upset but
did not believe that Gruenwald would do such a thing as
she was not that kind of person. Butterfield replied by
reviewing the events of March 20 briefly and by saying that
he had three witnesses' written statements supporting that
description. The meeting then ended. Significantly, Butter-
field testified that he had summoned these two employees
to his office because he had heard from Himes that they
were upset over Gruenwald's discharge. However, Himes
did not corroborate him in this regard, and Bolton denied
flatly having ever said, prior to this meeting, that she had
been upset by the termination.
1340
TWILIGHT HAVEN, INCORPORATED
At the election conducted on March 24, 23 votes were
cast for, and 24 against, the Union, with I ballot being
challenged.
B. Analysis
I. The alleged interrogations
Five employees - Mitchell, Mahaffey, Mikel, Gruen-
wald, and Bolton - testified that Butterfield had ques-
tioned them regarding various facets of the Union's
activities then in progress. Butterfield did not dispute
having asked Mahaffey who had given her the card which
she had signed and if other employees had signed cards.
Although this conversation had been initiated by Mahaf-
fey, this does not constitute a defense to interrogation
otherwise unlawful. See United States Lines, Inc., 217
NLRB 117, 124 (1975). The subject concerning which
Mahaffey had initiated the conversation pertained to
recovery of her card. Clearly unrelated to that subject were
those concerning the identity of the person who had given
her the card and whether other employees had signed
cards.
It is, of course, true that Butterfield did assure Mahaffey
that her job would not be jeopardized. However, the Board
has disavowed the "view that, absent the implication of
reprisals, interrogation by a supervisor of an employee
concerning his union activities and sympathies is never
coercive." Maple City Stamping Company, 200 NLRB 743,
fn. 3 (1972). Moreover, this assurance was confined only to
the issue of jeopardy to Mahaffey's job for having signed a
card. At no point, so far as the record discloses, did he
make a similar assurance if Mahaffey declined to answer
his questions. No valid purpose or explanation was ad-
vanced for having asked her these questions. Indeed, none
could be advanced, for "interrogation which seeks to place
an employee in the position of acting as an informer
regarding the union activity of his fellow-employees is
coercive." Abex Corporation-Engineered Products Division,
162 NLRB 328, 329 (1966). Just as an employer's question-
ing regarding the source of union buttons constitutes "an
attempt to restrain its employees from exercising rights
guaranteed by Section 7 of the Act" (Carolina American
Textiles, Inc., 219 NLRB 457 (1975)), so too does an
attempt to ascertain the source of authorization cards. "It
is obvious from the timing of the questions involved herein
that the Respondent was attempting to find out the extent
of union support among the employees." Florida Steel
Corporation, 215 NLRB 97 (1974). Therefore, I find that,
by Butterfield's questioning of Mahaffey concerning the
source of the card which she signed and whether other
employees had also signed cards, Respondent violated
Section 8(a)(1) of the Act.
In general, Butterfield denied the questioning attributed
to him by Mitchell, Gruenwald, Bolton, and Mikel. Yet, his
denials appeared based less on candor and a clear
recollection than on an effort to fortify Respondent's
position that no unfair labor practices had been commit-
ted. Thus, he based his denial concerning the comments
attributed to him by Gruenwald on what he customarily
told employees in evaluation meetings, rather than on his
recollection as to what had transpired in his meeting to
evaluate her performance. Further, he appeared unable to
recall whether he had made the comments attributed to
him by Bolton, and his specific denials of those remarks
were entered, pro forma, only after counsel's specific
questioning appeared to awaken him to the fact that his
prior answers were not entirely satisfactory. Finally, as
discussed in greater detail below, Butterfield was not a
credible witness.
The comments attributed to him by Gruenwald, Bolton,
and Mikel were sufficiently similar to be mutually reinforc-
ing. Moreover, the question which Mitchell recited him as
having asked her was essentially the same type of effort to
ascertain the extent of the Union's activity as had been his
second question to Mahaffey. In fact, his later concession
to Himes that he was aware that Gruenwald, Bolton, and
Mikel had been proponents of the Union manifests the fact
that he had been attempting to identify the Union's
supporters and had obtained such information. I credit the
accounts of Mitchell, Gruenwald, Bolton, and Mikel
concerning the questions put to them by Butterfield.
In view of the number of employees questioned, it can
only be inferred that Butterfield had been engaging in his
own campaign of systematic interrogations to ascertain the
source and breadth of the Union's support among Respon-
dent's employees. Including these questions in evaluation
meetings where employees' wage increases were at stake,
conducted in his office and not accompanied by any
assurances against reprisals for not answering, leaves no
room for any conclusion other than that the questions put
to Gruenwald, Bolton, and Mikel were coercive. While
Mitchell had been questioned in a working area, she was a
new employee and, as such, would be most likely to be
sensitive to the implication of adverse consequences that
could flow from an answer unsatisfactory to Butterfield.
Yet, she was neither extended assurances against reprisals
nor accorded an explanation for Butterfield's questioning.
See, e.g., Erie Technological Products, Inc., 218 NLRB 878
(1975). In fact, the clearest showing of the coercive effect of
Butterfield's questioning arises from the responses which
he received from Gruenwald, Bolton, Mikel, and Mitchell.
Although each of them had signed cards authorizing the
Union to represent them, each pleaded noninvolvement or
neutrality in responding to Butterfield's questions.
Therefore, I find that, by Butterfield's questions to these
employees, Respondent violated Section 8(aXl) of the Act.
2. The discharge of Pauline Gruenwald
One point regarding the events of March 20 is clear:
Buchnoff had been upset, at least in part, by Gruenwald
that day. The clearest evidence of this is their agreement
that Buchnoff had rebuffed Gruenwald's attempt to talk
further at the efficiency building door. Both this exchange
and the earlier offer of coffee to Buchnoff appear to have
been efforts by Gruenwald to placate Buchnoff. Moreover,
Bolton's testimony confirms this; for, when she described
Orona's reporting that Buchnoff was continuing to cry
notwithstanding Gruenwald's initial visit to the laundry
room, she testified that Gruenwald had said, "Oh, if I said
anything, I'll go apologize to her." However, the fact that
Buchnoff may have been upset at what Gruenwald had
1341
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
said or did that day does not resolve the issue of whether
the latter had been terminated in violation of the Act.
Accepting, arguendo, Buchnoff's and Orona's descrip-
tions of the March 20 events, the three exchanges of that
day involving Gruenwald had taken place in the context of
a preelection campaign. Gruenwald's appeal to Buchnoff
had been part of that campaign, for she had been seeking
to persuade Buchnoff not to vote against the Union. Such
an appeal, even when couched in terms of a request to
refrain from voting altogether, has been held protected by
Section 7 of the Act. Service Technology Corporation, a
subsidiary of LTV Aerospace Corporation, 196 NLRB 1036,
1043 (1972), enfd. 480 F.2d 923 (C.A. 5, 1973). In such
circumstances, Respondent's discharge of Gruenwald for
engaging in such conduct would violate the Act absent a
showing that the discharge had resulted from Respondent's
belief that her actions had risen to the level of unrefuted
misconduct. N.L.R.B. v. Burnup & Sims, Inc., 379 U.S. 21
(1964).
Misconduct, however, will not be found readily, for both
the Board and the courts have granted considerable
latitude to employees for argument and counterargument
in preelection situations, recognizing the "strong emotions"
generated by union activity. Id. at 23. Thus, failure to
exercise "finesse and gentility" in campaigning for or
against representation will not serve to divest employees of
their statutory protection. Cement Transport, Inc., 200
NLRB 841, 845-846 (1972), enfd. 490 F.2d 1024 (C.A. 6,
1974); see also N.L.R.B. v. Efco Manufacturing, Inc., 227
F.2d 675, 676 (C.A. 1, 1955). "Meaningful protection in
this situation must require that relatively minor incidents of
misconduct, such as name-calling or somewhat ambiguous
or veiled threats, do not remove the Act's protection from
the perpetrator, or suffice to legitimize his discharge."
Corriveau & Routhier Cement Block, Inc., 171 NLRB 787,
788 (1968), enforcement denied in circumstances presented
410 F.2d 347 (C.A. 1, 1969).8
Notwithstanding the hyperbole of Respondent's wit-
nesses' characterizations of Gruenwald's March 20 con-
duct, the specific factual descriptions of Buchnoff and
Orona, even if credited, fail to show that her actions that
day rose to the level requisite to establishing misconduct.
There is no evidence that Gruenwald directed an overt
threat to Buchnoff. Indeed, the second and third exchanges
show only that Gruenwald offered coffee to calm Buch-
noff's nerves and, later, requested to talk with Buchnoff.
The two exchanges, as pointed out above, were placatory,
rather than intimidatory, in nature. Further, assuming that
Gruenwald did follow Buchnoff back to the main building,
the latter conceded that, once inside, Gruenwald had
turned off into the kitchen prior to the time at which
Buchnoff had reached the laundry room. Since Gruenwald
had been a cook, such conduct is hardly inconsistent with
8 Although Corriveau involved comments made during an organizational
meeting conducted away from the employer's premises, while Gruenwald's
comments occurred on Respondent's premises, this does not render its
standard inapposite in the instant case; for there is neither a contention, nor
evidence to support a contention, that the three progressively shorter
exchanges of March 20 impaired the on-the-job efficiency of any of
Respondent's employees that day. Nor has there been a showing that these
exchanges occurred in the presence of residents or patients; and, further,
there has been no showing that Gruenwald's solicitations violated any valid
an intent to return to her work location following Buch-
noff's rebuff. Indeed, had Gruenwald's intent been intimi-
datory, it is unlikely that she would have acquiesced so
readily in Buchnoffs rebuff at the efficiency building door.
With regard to the first exchange that day, Respondent's
charge of misconduct boils down to the sitting on Buch-
noff's lap, the posture of Gruenwald at the dryer, the
finger-shaking in Buchnoff's face, the red-faced appear-
ance of Gruenwald, and the fact that Gruenwald had been
speaking in what Orona described as a "rough voice." Yet,
lap-sitting was a common practice among Respondent's
employees. While Buchnoff denied any knowledge of or
experience with this practice, no other witness corrobo-
rated her in this respect, and former Dietary Supervisor
Himes corroborated Gruenwald's testimony that the prac-
tice was a common one, occasioned by the shortage of
chairs on which employees could sit during breaks. More-
over, not only did Buchnoff testify that she had never
asked Gruenwald to get off her lap and had never
attempted to rise, but the very first sentence of her
statement to Butterfield reads: "Pauline came in laundy
[sic] and sat on my lap and told me if she made me up set
[sic] to stop."9 Finally, as discussed below, at one point
Buchnoff testified that she did not start crying until after
both she and Gruenwald had risen and were standing by
the dryer. In these circumstances, the lap-sitting cannot be
relied on to establish misconduct by Gruenwald.
With regard to Gruenwald's posture while standing in
front of the dryer, Buchnoff never made any effort to move
away from Gruenwald, and there is nothing uncommon in
ordinary conversation, particularly where an effort is being
made to persuade the listener, for a speaker to stand closely
and lean an arm against a fixed structure. Indeed, as
photographs of politicians commonly illustrate, it is not
abnormal for a speaker to put an arm around the shoulder
of a listener. Consequently, there is nothing inherent in
Gruenwald's posture to show misconduct. Furthermore,
Orona had entered the room during this portion of the
exchange; and, notwithstanding her conclusionary charac-
terization of what she had observed, she neither intervened
nor did Buchnoff request her to do so. This belies any
contention that Gruenwald's posture or words at the time
were violent or threatening. Indeed, Buchnoff herself
tended to refute such a conclusion when she testified, "I
just stood there, and I figured eventually she would just go
away and leave me alone."
With regard to the finger-shaking, Gruenwald conceded
that this might have occurred, testifying that she commonly
shook her finger during conversations. Again, this is not an
uncommon technique of debate, particularly used to
emphasize points. While it occasionally leaves listeners
with an uncomfortable feeling, it can hardly be character-
rule prohibiting solicitation. Consequently, the difference in location would
not preclude the Corriveau standard's application to the Sec. 7 activity in
which Gruenwald had engaged on March 20.
9 Wholly unconvincing was Buchnoff's testimony that Gruenwald had
never said this, and that she had written this exculpatory sentence in the
statement because "I was so upset when I wrote this, I didn't know - I
couldn't think what - that I was upset when she did come and sit on my
lap. But when I wrote this, I was upset. I mixed it all up." This was simply
unbelievable.
1342
TWILIGHT HAVEN, INCORPORATED
ized as a threatening gesture or as one which would give
rise to fear.
With regard to Gruenwald's red-faced appearance, it
should be noted that such facial coloration can indicate
any number of emotions in addition to the anger which
Buchnoff chose to attribute to Gruenwald. Indeed, Orona
testified that, while standing in front of the dryer, Buchnoff
had been "all red, you know." Moreover, Buchnoff's
characterization of Gruenwald as being mad and angry at
the time that she had entered the laundry room is but one
of a number of inconsistent aspects in Respondent's overall
defense. For, while it is undisputed that Gruenwald had
made repeated efforts to ensure Buchnoff's support for the
Union, the latter admitted that she had never taken the
position that she intended to vote against the Union; but
instead had always responded to Gruenwald that she did
not "know which way I'm going to vote." To the contrary,
on December 25, 1976, Buchnoff had executed a card
authorizing the Union to represent her. Accordingly, there
would have been no basis, so far as the record discloses, for
Gruenwald to have approached in the angry condition
attributed to her by Buchnoff and to have accused
Buchnoff of potentially "killing" Gruenwald's vote. See,
e.g., Price Brothers Company, 211 NLRB 822, 823 (1974).
Finally, with regard to Orona's description of Gruenwald
as speaking in a "rough voice," the fact is that, when
testifying, Gruenwald spoke in a gravelly tone. As Orona
conceded, that is her normal tone of voice. Consequently,
this can hardly be held to be evidence of misconduct.
In sum, there is no objective basis for attributing
misconduct to Gruenwald with regard to her words to or
treatment of Buchnoff on March 20. As found above, it
does appear that Buchnoff had become upset with Gruen-
wald on that day. However, there is no evidence that
Gruenwald intended such a result, and the record raises
considerable doubt as to whether Gruenwald had been
responsible for making Buchnoff cry, as opposed to simply
upsetting her and possibly making her angry on a day
when other causes had led to her tears. Bolton's testimony
that Buchnoff had cried "many times" was not refuted, and
Butterfield conceded that it had been reported to him on
March 21 that Buchnoff had been crying "all day" on
March 20. That Buchnoff would have reason for such
emotionalism is shown by Respondent's counsel's ac-
knowledgement that her son had been killed. Accordingly,
the evidence, taken as a whole, does not support Respon-
dent's contention that it had been Gruenwald who had
made Buchnoff cry.
In any event, even had Gruenwald's words occasioned
Buchnoff's tears, it would be improper to deprive an
employee of the Act's protection solely on the basis of a
listener's reaction. So long as the appeal is protected, the
reaction of those who hear it is immaterial. See, e.g.,
International Union of Operating Engineers Local 400, AFL-
CIO (Hilde Construction Company), 225 NLRB 596, 604-
605 (1976), enfd. 95 LRRM 3010, 81 LC 1 13,305
(C.A.D.C. 1977). Indeed, this case provides an excellent
illustration of the necessity for such a standard inasmuch
as Buchnoff appeared to be a particularly emotional person
who tended to overreact, as shown by her testimony
concerning the coffee incident. There is not one scintilla of
evidence that a reasonable person would have believed that
Gruenwald was so unstable and reckless that she would
risk her job and incur possible criminal liabilities by
drugging the coffee offered Buchnoff. In fact, the latter had
difficulty explaining what it had been about that incident
that had engendered her purported fear. That she would
settle on such an extreme explanation, ultimately, hardly
leads one to conclude that an employee's protection under
the Act should be based on her reactions.
Therefore, even accepting Respondent's evidence as
credible, it will not support a finding of misconduct
sufficient to deprive Gruenwald of statutory protection for
appealing to Buchnoff not to vote against the Union.
Moreover, I am convinced that Respondent never believed
that Gruenwald had, in fact, engaged in misconduct.
Rather, the evidence amply supports the conclusion that
Respondent seized on the incident as a vehicle both for
disposing of a union proponent and for proving to the
employees the truth of its earlier prophesies that violence
would follow in the Union's wake.
As found above, Butterfield had questioned employees in
an effort to ascertain the identities of those who supported
the Union. That Respondent had become fully aware of
the degree of support being afforded the Union by the
kitchen employees, particularly Gruenwald, was shown by
Himes' credible testimony concerning Butterfield's and
Wilson's remarks. It was Wilson who had pointed out to
Himes the desirability of disposing of Gruenwald as a
means of prevailing against the Union, and it was she who
had first broached Butterfield on March 21 concerning the
previous day's events. Butterfield's account of Wilson's
comments that morning was general, and Wilson was never
called to relate specifically what had been said during their
conversation. What is clear, however, is that the election
was nearing; and Butterfield, as he had told Himes earlier,
was desirous of dissuading the kitchen employees from
supporting the Union. It is, consequently, fairly inferrable
that Wilson and Butterfield embarked on a course of using
Gruenwald's discharge for misconduct as the vehicle to
attain that end. Then, to demonstrate to the employees the
violent nature of the Union and its supporters, Respondent
met with kitchen employees on two occasions and reiterat-
ed the purported misconduct of Gruenwald, thereby
attempting to reinforce its earlier predictions.
This conclusion is only buttressed by consideration of
Respondent's defense.
First, it was wildly inflated. By no stretch of the
imagination could Gruenwald's actions, even as related by
Buchnoff and Orona, be construed in the extreme language
resorted to by Respondent's witnesses.
Second, there were a number of gaps in Respondent's
defense. For example, not only was Wilson never produced
as a witness, but neither was Logan. Yet, she had been in
the laundry room on March 20, had spoken with Buchnoff
at that time, and, assertedly, had reported what she had
observed to Butterfield on March 21. No explanation was
advanced for not calling her as a witness to these events.
Instead, Respondent called only Orona, and her hostility
toward Gruenwald was manifest. In addition, no conceiv-
able explanation was advanced as to why Gruenwald
would have been as angry with Buchnoff as the latter
1343
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
described. Finally, in an effort to establish a basis for the
knowledge which had led to issuance of Respondent's
December 28, 1976, letter, Butterfield relied on a union
poster. Yet, no poster was produced, and no testimony was
adduced to support his testimony that such a poster had
existed or to controvert the General Counsel's evidence
that such a poster could not have existed in December
1976.
Third, the testimony of Respondent's witnesses suffers
the infirmities of major inconsistency and internal contra-
diction so great that it simply cannot be relied on. By way
of illustration -and by no means a complete account of
these matters - in an apparent effort to minimize his
knowledge of Gruenwald's union activities at the time of
her discharge, Butterfield testified that Buchnoff had
confined her March 21 oral and written accounts to the
events of the preceding day. Yet, Buchnoff flatly contra-
dicted him, for she testified that she had told Butterfield on
March 21, "[h]ow [Gruenwald] had gave out those cards
for us to sign" and "how in the morning, she would say for
us to join - sign this card yes and join - say yes on the
union day." Moreover, her statement, which Butterfield
conceded having read before discharging Gruenwald,
specifically recites Gruenwald's pre-March 20 activities in
support of the Union.
The statement itself provides grist for further contradic-
tions among Respondent's witnesses; for, while Butterfield
testified expressly that no supervisors had been present
when Buchnoff had prepared it, she testified that, after
hearing her oral account of the incident, Butterfield had
taken her to a room in which her supervisor had been
present; and that her supervisor had remained in that room
during the preparation of the statement. Yet, this supervi-
sor was never produced as a witness to support Butterfield
in this regard and to contradict Buchnoff. Not only does
this raise suspicion regarding the circumstances under
which the statement was prepared, but this suspicion is
only heightened by the fact that additions have been made
to the statement after Buchnoff had signed her name,
thereby raising a question as to whether these further
matters might not have been suggested to her for inclusion,
and by the further fact that at least one word was used in
the statement, "harrassing [sic]," which she conceded was
not a word which she would ordinarily use. No explanation
was advanced for her choice of the word on this occasion.
Nor do I believe, as Burns and Butterfield testified,
Gruenwald would simply have sat mutely, ignoring Butter-
field's purported invitations to explain what had taken
place the preceding day, and permitted Butterfield to
discharge her.
With regard to Orona, as noted above, she appeared
hostile toward Gruenwald. Had the portion of the incident
which she observed been so extreme that she "couldn't take
it," one wonders why she did not intervene on Buchnoff's
behalf. Certainly, she was not reluctant to intervene, since
she claimed that shortly thereafter she had told Gruenwald
to leave Buchnoff alone. In fact, after a detailed account of
her movements during the afternoon of that day, which
included only a single admonition to Gruenwald to leave
Buchnoff alone, she was interrogated in sufficient detail on
cross-examination that she testified inconsistently with her
account on direct examination. At that point, she then
recited a second conversation with Gruenwald, thereby
facially resolving her inconsistent testimony. I have no
doubt that this was the sole reason for her recitation of this
purported second admonition to Gruenwald - she was
simply trying to create a consistent story and was not
testifying with the object of describing what had taken
place with accuracy.
Buchnoff's unreliability was manifest. There was no
reason for Gruenwald to have accosted her in the manner
which she described. Her account that Gruenwald had kept
repeating the same words - over and over - was not
realistic. Her effort to attribute the possibility of violence
or harm by the 63-year-old Gruenwald was supported
neither by the physical appearance of these two women nor
by any evidence of a background of violent activity by
Gruenwald. Similarly, there was simply no basis for
believing that Gruenwald would have drugged the coffee
offered during the second exchange. In fact, Buchnoff
vacillated in trying to explain precisely what had been the
cause of her purported fear during this incident. Her claim
that it had been the manner in which Gruenwald had
thrust the coffee toward her was apparently perceived by
her to be unbelievable, as shown by her own concession
that Gruenwald had never spilled a drop of the coffee; and,
thus, she settled upon the possibility that Gruenwald might
have drugged it. In another area, Buchnoff vacillated when
asked at what point she had first begun crying because of
Gruenwald's actions. She initially testified that it had not
been until they had been standing in front of the dryer but
later testified, "when she come in and sat on my lap and
insisted for me not to come on the place is when she upset
me and made me cry."
I do not credit the testimony of Respondent's witnesses. I
find that Gruenwald was terminated for engaging in
protected activity in a manner which did not involve any
misconduct. I find that, in discharging her, Respondent
had sought to eliminate a union supporter, thereby hoping
to garner the support of other kitchen employees, to
eliminate one vote in favor of the Union, and to reinforce
its earlier predictions of union violence in an effort to prove
to the employees the accuracy of those predictions and the
undesirability of representation by the Union. While
Respondent argues, in essence, that there had been no
showing of discouragement of other employees within the
meaning of Section 8(a)3) of the Act, proof of subjective
evidence of employees' response "is not required where
encouragement or discouragement can be reasonably
inferred from the nature of the discrimination." Radio
Officers' Union of the Commercial Telegraphers Union, AFL
[Bull Steamship Co.] v. N.LR.B., 347 U.S. 17, 51 (1954). A
discharge for union activities constitutes discrimination
which "necessarily discourages union membership."
N.L.R.B. v. J. G. Boswell Co. et al., 136 F.2d 585, 596 (C.A.
9, 1943). Furthermore, while Respondent argues that it did
not discharge other active union supporters, "a discrimina-
tory motive, otherwise established, is not disproved by an
employer's proof that it did not weed out all union
adherents" (Nachman Corporation v. N.LR.B., 337 F.2d
421, 424 (C.A. 7, 1964)); for a "violation of the Act does
not need to be wholesale to be a violation." N.L.R.B. v.
1344
TWILIGHT HAVEN, INCORPORATED
Puerto Rico Telephone Company, 357 F.2d 919, 920 (C.A. 1,
1966).
3. The refusal to bargain
Although Respondent argues that any unfair labor
practices committed by it are insufficient in magnitude to
warrant setting aside the election and issuing a bargaining
order, it is clear beyond peradventure that an unlawful
discharge warrants both results. A. J. Krajewski Manufac-
turing Co., Inc., 180 NLRB 1071 (1970); Motel 6, Inc., 207
NLRB 473 (1973), enfd. by unpublished decision 94
LRRM 2368 (C.A. 9, 1974); Hambre Hombre Enterprises,
Inc., d/b/a Panchito's, 228 NLRB 136, 137 (1977).
A total of 31 authorization cards were produced. The
General Counsel contends that all should be counted to
support the Union's demand for recognition, which Re-
spondent concededly received on January 15.10 In its brief,
Respondent argues that eight of these cards may not be
counted in support of the Union's majority. In the case of
five of the cards (Olivia Rodriguez, Erma Lee Simon,
Gwen McCloud, Erma L. Mahaffey, and Willie Mae
Packard), Respondent argues that, because the legend
"INITIATION WAIVED" has been stamped on only some of
the cards, these five cards are rendered invalid under
N.LR.B. v. Savair Manufacturing Co., 414 U.S. 270 (1973),
because the same offer was not extended to all employees.
Neither Mahaffey nor Mikel and Cruz Estrada, who had
solicited four of these cards, could recall if the legend had
been stamped on them at the time that they were signed.
Moreover, nothing was said at the time that they were
solicited concerning a waiver of initation. Consequently,
the vice feared by the Court in Savair - "the solicitation of
authorization cards in exchange for consideration of fringe
benefits granted by the union" (Id. at 280) - has not been
shown to be present in the instant case.
Contrary to Respondent's subsidiary argument, the rule
of Savair does not impose a mandatory duty upon unions;
but rather imposes a restriction upon what unions can do
in this respect: They may not tell employees that it is
necessary to sign cards to avoid payment of an initiation
fee. Serv-U-Stores, Inc., 225 NLRB 37, 39 (1976). They
may, however, waive initiation fees, even for only some of
those who sign cards, without running afoul of Savair, so
long as it is not shown that the waiver is designed to serve
as an inducement for a signature on the card or, viewed
from a slightly different angle, so long as it was not
necessary to sign a card to avoid payment of an "initia-
tion" fee. Schwab Foods, Inc., d/b/a Scotts IGA Foodliner,
223 NLRB 394, 411 (1976), and cases cited therein.
Consequently, the Savair doctrine imposes no impediment
to the validity of these five cards.
Respondent further argues that Mahaffey's card should
not be counted inasmuch as she told Butterfield by early
January that she wished to retrieve it. Of course, she told
him this in the context of her fears that her job might be
jeopardized by virtue of her having signed a card. He
assured her that it would not be jeopardized. Thereafter,
she made no further effort, so far as the record discloses, to
10 Although there was a degree of disparity between the classifications
listed in this letter and those agreed on in the stipulation, this has not been
retrieve her card. Accordingly, as she made no effort to
contact the Union concerning return of her card, the card
may be counted in computing the Union's majority status,
since "an authorization card cannot be effectively revoked
in the absence of notification to the Union prior to the
demand of recognition." Struthers-Dunn, Inc., 228 NLRB
49 (1977), and cases cited therein.
Since all five of these cards are valid, the Union had at
least 28 cards at the time of the demand. At that time, there
were 52 employees in the bargaining unit. Consequently,
without resorting to resolution of the validity of the
remaining three cards and resolving the contention that
Bolton was subsequently promoted to a supervisory posi-
tion, it is clear that the Union did enjoy the support of a
majority of the employees at the time of its demand for
recognition. Moreover, through its unlawful interrogations,
Respondent had already commenced its campaign of
unfair labor practices by, at the latest, January 1. Accord-
ingly, I find that its bargaining obligation arose as of that
date (Broadmoor Lumber Company, 227 NLRB 1123, fn. 2
(1977)); and that, by refusing to recognize the Union on
and after January 15, Respondent violated Section 8(a)(5)
and (1) of the Act.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth above, occurring
in connection with Respondent's operations described in
section I, above, have a close, intimate, and substantial
relationship to trade, traffic, and commerce among the
several States and tend to lead, and have led, to labor
disputes burdening and obstructing commerce and the free
flow of commerce.
CONCLUSIONS OF LAW
1. Twilight Haven, Incorporated, is an employer within
the meaning of Section 2(2) of the Act, engaged in
commerce and in a business affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Hospital and Institutional Workers Union, Local
250, SEIU, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. By interrogating employees concerning their union
membership in and activities on behalf of Hospital and
Institutional Workers Union, Local 250, SEIU, AFL-CIO,
Twilight Haven, Incorporated, has violated Section 8(a)(1)
of the Act.
4. By discriminatorily discharging and refusing to
reinstate Pauline Gruenwald, Twilight Haven, Incorporat-
ed, violated Section 8(a)(3) and (1) of the Act.
5. A unit appropriate for collective bargaining is:
All housekeepers, janitors, laundry workers, maids,
porters, gardeners, cooks, kitchen aides, dishwashers,
dietary aides, nurses aides, and orderlies employed by
Twilight Haven, Incorporated, at its Fresno, California,
location; excluding all registered nurses, licensed voca-
shown to have been more than minor; and Respondent makes no argument
that it rendered the demand defective.
1345
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tional nurses, office clerical employees, engineers,
guards, and supervisors as defined in the Act.
6. At all times material since January 1, 1977, Hospital
and Institutional Workers Union, Local 250, SEIU, AFL-
CIO, has been the exclusive collective-bargaining represen-
tative of the employees in the above-described unit within
the meaning of Section 9(a) of the Act.
7. By failing and refusing on and after January 15,
1977, to recognize and bargain with Hospital and Institu-
tional Workers Union, Local 250, SEIU, AFL-CIO, as the
representative of the employees in the above-described
unit, Respondent violated Section 8(a)(5) and (1) of the
Act.
8. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Twilight Haven, Incorporated, has
engaged in certain unfair labor practices, I shall recom-
mend that it be ordered to cease and desist therefrom, and
that it take certain affirmative action to effectuate the
policies of the Act.
Twilight Haven, Incorporated, will be required to offer
Pauline Gruenwald immediate reinstatement to her former
position of employment or, if that position no longer exists,
to a substantially equivalent position without prejudice to
her seniority or other rights and privileges previously
enjoyed, dismissing, if necessary, anyone who may have
been assigned or hired to perform the work which Gruen-
wald had been performing prior to her termination on
March 21, 1977. Additionally, Twilight Haven, Incorporat-
ed, will be required to make Gruenwald whole for any loss
of earnings she may have suffered by reason of her
unlawful termination, with backpay to be computed on a
quarterly basis, making deductions for interim earnings,
and with interest to be paid on the amount owing and to be
computed in the manner prescribed in F. W. Woolworth, 90
NLRB 289 (1950), and Florida Steel Corporation, 231
NLRB 651 (1977). See, generally, Isis Plumbing & Heating
Co., 138 NLRB 716 (1962), enforcement denied on differ-
ent grounds, 322 F.2d 913 (C.A. 9, 1963).
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER" 1
The Respondent, Twilight Haven, Incorporated, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Interrogating employees concerning their member-
ship in and activities on behalf of Hospital and Institution-
al Workers Union, Local 250, SEIU, AFL-CIO, or any
other labor organization.
" In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
(b) Discharging or otherwise discriminating against
employees with regard to their hire or tenure of employ-
ment or any term or condition of employment for engaging
in activities on behalf of a labor organization or for
engaging in activity protected by Section 7 of the Act.
(c) Refusing to recognize or bargain collectively with
Hospital and Institutional Workers Union, Local 250,
SEIU, AFL-CIO, as the exclusive bargaining representa-
tive of the employees in the following appropriate bargain-
ing unit:
All housekeepers, janitors, laundry workers, maids,
porters, gardeners, cooks, kitchen aides, dishwashers,
dietary aides, nurses aides, and orderlies employed by
Twilight Haven, Incorporated, at its Fresno, California,
location; excluding all registered nurses, licensed voca-
tional nurses, office clerical employees, engineers,
guards, and supervisors as defined in the Act.
(d) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights under
Section 7 of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Offer Pauline Gruenwald immediate and full rein-
statement to her former position of employment, dismiss-
ing, if necessary, anyone who may have been hired or
assigned to perform the work that she had been performing
prior to March 21, 1977, or, if her former position no
longer exists, to a substantially equivalent position, without
prejudice to her seniority or other rights and privileges
previously enjoyed, and make her whole for any loss of pay
she may have suffered as a result of the discrimination in
the manner set forth above in the section entitled "The
Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents all payroll and other records necessary
to compute the backpay and reinstatement rights set forth
in the section of this Decision entitled "The Remedy."
(c) Upon request, recognize and bargain, effective as of
January 15, 1977, with Hospital and Institutional Workers
Union, Local 250, SEIU, AFL-CIO, as the collective-
bargaining representative of the employees in the above-
described appropriate unit, respecting rates of pay, wages,
hours, or other terms and conditions of employment and, if
an understanding is reached, embody such understanding
in a signed agreement.
(d) Post at its Fresno, California, facility, copies of the
attached notice marked "Appendix." 2 Copies of the
notice, on forms provided by the Regional Director for
Region 32, after being duly signed by Respondent's
authorized representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are custom-
arily posted. Reasonable steps shall be taken by Twilight
12 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."
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TWILIGHT HAVEN, INCORPORATED
Haven, Incorporated, to insure that said notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 32, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
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, as amended, gives
all employees the following rights:
To organize themselves
To form, join, or support unions
To bargain as a group through a representative
they choose
To act together for collective bargaining or
other mutual aid or protection
To refrain from any or all such activities
except to the extent that the employees' bargain-
ing representative and employer have a collective-
bargaining agreement which imposes a lawful
requirement that employees become union mem-
bers.
In recognition of these rights, we hereby notify our
employees that:
WE WILL NOT interrogate you regarding your mem-
bership in and activities on behalf of Hospital and
Institutional Workers Union, Local 250, SEIU, AFL-
CIO, or any other labor organization.
WE WILL NOT discharge or otherwise discriminate
against you for engaging in activities on behalf of
Hospital and Institutional Workers Union, Local 250,
SEIU, AFL-CIO, or any other labor organization.
WE WILL NOT refuse to recognize Hospital and
Institutional Workers Union, Local 250, SEIU, AFL-
CIO, as the collective-bargaining representative of:
All housekeepers, janitors, laundry workers,
maids, porters, gardeners, cooks, kitchen aides,
dishwashers, dietary aides, nurses aides, and
orderlies employed by Twilight Haven, Incorpo-
rated, at its Fresno, California, location; exclud-
ing all registered nurses, licensed vocational
nurses, office clerical employees, engineers,
guards, and supervisors as defined in the Act.
WE WILL NOT in any other manner interfere with any
of your rights set forth above which are guaranteed by
the National Labor Relations Act.
WE WILL offer Pauline Gruenwald immediate and
full reinstatement to her former position, dismissing, if
necessary, anyone who may have been hired or as-
signed to perform the work which she had been
performing prior to the time that she was terminated or,
if her former position no longer exists, to a substantially
equivalent position, without prejudice to her seniority
or other rights and privileges, and make her whole for
any loss of pay she may have suffered as a result of our
discrimination.
WE WILL, upon request, recognize and bargain with
Hospital and Institutional Workers Union, Local 250,
SEIU, AFL-CIO, as the collective-bargaining represen-
tative of the employees in the unit described above
respecting rates of pay, wages, hours, or other terms
and conditions of employment and, if an understanding
is reached, embody such understanding in a signed
agreement.
TWILIGHT HAVEN,
INCORPORATED
1347