Windsor Castle Health Care Facilities

National Labor Relations Board - Board Decisions

Mar 4, 1993

310 N.L.R.B. 579 (N.L.R.B. 1993)

579
310 NLRB No. 89
WINDSOR CASTLE HEALTH CARE FACILITIES
1 The Respondent Union’s name has been amended pursuant to its
unopposed motion.
2 The Respondents have excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
The Respondent Windsor Castle Health Care Facilities implies that
some of the judge’s rulings, findings, and conclusions demonstrate
bias and prejudice. On careful examination of the judge’s decision
and the entire record, we are satisfied that any such contentions are
without merit.
The judge found that the unit consisted of 108 employees. He also
properly found that the five 1115 paid organizers, who were tempo-
rarily at the Respondent Windsor’s facility solely in furtherance of
Windsor’s unlawful scheme to recognize 1115, should not be count-
ed as part of the unit. He inadvertently failed, however, to subtract
these five from his count of 108 unit employees, leaving 103. As-
suming for argument’s sake that the 48 cards designating 1115 (ex-
cluding the cards of the 5 organizers) were not otherwise tainted by
Windsor’s unlawful assistance, we note that 1115 still had less than
a majority (48 out of 103) of cards.
Member Oviatt notes that even if the five organizers’ activities at
the Respondent’s facilities were not in furtherance of the Respond-
ent’s 8(a)(2) conduct, they would still not be included in the unit
for voting purposes because, in view of the temporary nature of their
employment, they would not share a community of interest with the
other employees. See Multimatic Products, 288 NLRB 1279, 1316
(1988). Cf. Sunland Construction Co., 309 NLRB 1224 (1992),
which involved the entirely different question of whether, apart from
voter eligibility, union organizers are protected under Sec. 7.
3 Backpay is based on F. W. Woolworth Co., 90 NLRB 289
(1950).
Windsor Castle Health Care Facilities, Inc. (for-
merly known as Parkview Nursing Home, Inc.)
and New England Health Care Employees
Union, District 1199, SEIU, AFL–CIO and
1115 Nursing Home and Service Employees
Union, a Division of 1115 District Council,
H.E.R.E., AFL–CIO,1 Party in Interest
1115 Nursing Home and Service Employees Union,
a Division of 1115 District Council, H.E.R.E.,
AFL–CIO and New England Health Care Em-
ployees Union, District 1199, SEIU, AFL–CIO
Windsor Castle Health Care Facilities, Inc. (for-
merly known as Parkview Nursing Home, Inc.)
and Harriet D. Banks
1115 Nursing Home and Service Employees Union,
a Division of 1115 District Council, H.E.R.E.,
AFL–CIO and Harriet D. Banks. Cases 34–CA–
4597–1, 34–CA–4597–2, 34–CA–4760, 34–CA–
5070, 34–CB–1284, and 34–CB–1413
March 4, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On July 31, 1992, Administrative Law Judge Robert
T. Snyder issued the attached decision. The Respond-
ents filed exceptions and supporting briefs. The Gen-
eral Counsel and the Charging Party filed reply briefs.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions, to modify the remedy,3 and to adopt the rec-
ommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Windsor Castle Health
Care Facilities, Inc., New Haven, Connecticut, its offi-
cers, agents, successors, and assigns, and the Respond-
ent 1115 Nursing Home and Service Employees
Union, A Division of 1115 District Council, H.E.R.E.,
AFL–CIO, Westbury, New York, its officers, agents,
and representatives shall take the action set forth in the
Order.
William O’Connor, Esq., for the General Counsel.
Morris Tuchman, Esq., for Respondent Employer.
Richard M. Greenspan, P.C., for Respondent Union.
John M. Creane, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
ROBERT T. SNYDER, Administrative Law Judge. This case
was tried before me on February 5, 6, and 7 and March 20
and 21, 1991, in Hartford, Connecticut.
The consolidated amended complaint alleges that Windsor
Castle Health Care Facilities, Inc. (formerly known as
Parkview Nursing Home, Inc.) (Windsor Castle or Parkview)
rendered aid, assistance, and support to 1115 Nursing Home
and Hospital Employees Union, a Division of 1115 Joint
Board (Local 1115 or 1115), in violation of Section 8(a)(1)
and (2) of the Act, and granted recognition to and entered
into a collective-bargaining agreement with Local 1115 in a
unit of its employees at a time when Local 1115 did not rep-
resent an uncoerced majority of the employees in the unit,
in violation of Section 8(a)(1) and (3) of the Act. In other
paragraphs of the consolidated complaint, Windsor Castle is
alleged to have threatened employees with discharge if they
refused to become members of, and execute dues-checkoff
authorizations on behalf of Local 1115 in violation of Sec-
tion 8(a)(1), and to have discharged employees at the request
of, Local 1115 because they refused to pay dues to, or join,
or execute a dues-checkoff authorization on behalf of Local
1115, in violation of Section 8(a)(1) and (3) of the Act.
Still other paragraphs of the complaint alleging Windsor
Castle’s unlawful interrogation of and threats against certain
named employees concerning their honoring a subpoena at
and giving testimony before the National Labor Relations
580 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates shall have reference to the year 1989 unless otherwise
noted.
Board and unlawfully interrogating, threatening, warning,
suspending, and discharging them because they engaged in
concerted activities on behalf of the Charging Union, New
England Health Care Employees Union, District 1199, SEIU,
AFL–CIO (District 1199 or 1199) were settled pursuant to a
settlement agreement entered between General Counsel and
Windsor Castle and approved by me during the course of the
hearing, and severed from the instant proceeding. That agree-
ment specifically preserved General Counsel’s right to use
the evidence obtained by it in the investigation of the instant
cases, much of which was presented on the record before me,
in support of the remaining allegations.
The allegations of the consolidated complaint against
Local 1115 include its threats to discharge employees if they
refused to execute dues-checkoff authorizations, informing
employees that Windsor Castle was a closed shop, and re-
ceiving assistance and support by accepting moneys which
Windsor Castle deducted from wages of unit employees, in
violation of Section 8(b)(1)(A) of the Act, and requesting
and causing Windsor Castle to discharge certain named em-
ployees because of their refusal to pay dues or become and
remain members of Local 1115 pursuant to the union-secu-
rity provision contained in the contract it entered with Wind-
sor Castle, in violation of Section 8(b)(2) of the Act.
Both Respondents denied the conclusionary allegations of
the complaint.
All parties were given full opportunity to participate, to in-
troduce relevant evidence, to examine and cross-examine wit-
nesses, to argue orally, and to file briefs. General Counsel,
Respondents Windsor Castle, and Local 1115 and Charging
Union District 1199 have each filed posttrial briefs, each of
which has been carefully considered. On the entire record in
the case, including my observation of the witnesses and their
demeanor, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent Windsor Castle, a Connecticut corporation
with an office and place of business in New Haven, Con-
necticut (the New Haven facility), has at all times material
herein been engaged as a health care institution in the oper-
ation of a nursing home providing inpatient medical and pro-
fessional care services for the elderly and infirm. During the
12-month period ending June 30, 1990, in the course and
conduct of its business operations Windsor Castle derived
gross revenues in excess of $100,000, and purchased and re-
ceived at the New Haven facility goods, products, and mate-
rials valued in excess of $5000 directly from entities located
outside the State of Connecticut. Respondent Windsor Castle
admits, and I find, that it is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act. The Respondents admit, and I also find, that Respondent
Local 1115 and District 1199 are each a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background Facts
On June 1, 1989, Windsor Castle acquired Parkview
Manor Nursing Home and began operations at the New
Haven facility. Its principal owner is Nelson Tuchman,
whose brother, Morris Tuchman, is the attorney for Windsor
Castle in this proceeding. Nelson Tuchman is also chief ex-
ecutive officer for Winthrop Health Care (Winthrop), located
nearby in New Haven. Israel Fogel is both executive director
of Windsor Castle and administrative consultant to Winthrop
Health Care.
District 1199 was representing employees at a separate fa-
cility in New Haven that Winthrop acquired in June 1985.
Winthrop fired some of these employees and District 1199
reacted with a community based campaign to pressure Win-
throp into recognizing the Union and rehiring the employees
and issued a 10-day strike notice. Jerry Brown, District 1199
president, negotiated with Nelson Tuchman by telephone and
an agreement was reached to rehire the terminated employees
and with District 1199 prior to the strike.
District 1199 also had sought unsuccessfully, over the
years, to organize the employees at the New Haven facility
prior to its purchase by Windsor Castle.
B. Initial Employee Attempts to Organize for
District 1199
Lamarra Davis, a certified nursing assistant (CNA) com-
menced having discussions with other employees about
bringing a union to the New Haven facility after the change
in ownership from Parkview to Windsor Castle. In Sep-
tember 19891 she spoke to a few friends, among them,
Latania Slerge, who knew of District 1199. Slerge agreed to,
and did, contact District 1199 in New York. She learned that
to get that Union at the facility the employees needed a ma-
jority of signatures on a petition. Slerge prepared a hand-
written petition and both she and Davis circulated it among
some employees on their shift, obtaining the signatures of
seven other employees in addition to their own. The petition
read at the top ‘‘If you would like a Union sign for 1199.’’
The signings took place on September 19 and 20.
Probably toward the end of September Davis had an intro-
ductory conversation with Anna Maxwell, her supervisor and
a stipulated statutory supervisor, about getting a union into
the facility. Later, on October 5, Davis told Maxwell that pe-
titions were going around for a union to get started, that she
had one but she was confused at the time because cards were
being passed out for Local 1115 on that day also, and she
and other employees were in the process of getting a union,
1199. Maxwell told her to be careful.
On October 10, District 1199 organizers leafletted outside
the New Haven facility as employees came to work.
C. The Organizing Campaign and Recognition
of Local 1115
Israel Fogel testified that in September 1989 Windsor Cas-
tle was encountering difficulty in staffing CNAs, among
other employees, at its New Haven facility. For the quarter
ending September 30, a certain percentage of the total work
hours of its missing aides were supplied by agencies under
a pool arrangement, with the assigned aides’ payroll costs
being met by the agencies and Windsor Castle reimbursing
them and in turn being reimbursed by the State for the costs
involved. It was not uncommon for nursing homes in the
State to use such agencies with costs reimbursed by the
581WINDSOR CASTLE HEALTH CARE FACILITIES
2 Although ads ran for 11 days, less than a tenth of the total costs,
$84.48 of a total of $1073, were attributable to classified ads for
nurses aides.
3 Although Respondent Windsor Castle’s brief describes Suarez as
a third party employed by another, and Fogel at first testified that
Suarez was both a housekeeper at Windsor Castle and an employee
of Health Care Services Group, a national housekeeping company,
in its answer Windsor Castle admits Suarez’ status as supervisor
housekeeping/laundry and its agent, within the meaning of the Act
and Fogel later, on the record, admitted that Suarez was a depart-
ment head of Windsor Castle (Tr. 804).
4 McSherry said there were four, but of course there were five per-
sons waiting. McSherry may have been confused that four were
nurses aides and the fifth, Henry St. Paul was a dietary employee.
State. In August and Steptember, Windsor Castle ran news-
paper ads seeking employees, among them, CNAs.2
Toward the end of September, Fogel also spoke to George
Suarez, Respondent’s head of housekeeping and laundry,3
about its staffing problems. He asked Suarez if he could get
some qualified staff. Within a short time Suarez informed
Fogel that some people were going to come up to Windsor
Castle on Monday of the following week and Fogel in turn
informed Joan McSherry, director of nursing services, that
four or five people would be coming up from New York for
employment. According to Fogel, they were to be permanent
employees.
In seeking employees, Suarez contacted Pat Berry, Local
1115 business representative, to recruit them. According to
Nathanial Hall, Local 1115 divisional coordinator, Berry told
him in his office in the presence of Raul Aldrich, Local
1115’s vice president, of a facility he called Parkview in
New Haven that needed people to work there and which was
unorganized at that particular time. As a result of this con-
versation Local 1115 gathered people together and sent them
up to New Haven to get jobs and to organize the facility.
The responsibility to achieve this goal was between Pat
Berry and Sandy Moore, who was employed at the time by
Local 1115 as an organizer. Hall exercised supervision in
seeing to it that the individuals assigned actually went to
Parkview and in checking the membership cards actually ob-
tained from employees there.
At 7 a.m. on October 2, five individuals arrived together
from New York, appearing to seek employment, four as
nurses aides, at the New Haven facility. They were Sandy
Moore, Norma Michelle, Uvonne Lennon, Lydie Paul and
Henry St. Paul. Moore had been employed as a Local 1115
organizer since July 24. Moore and one of the four had also
previously worked at Rego Park Nursing Home in Queens,
New York, where Nelson Tuchman, among his other jobs
elsewhere, is assistant administrator. Two of the five, Lydie
Paul and Norma Michelle, were currently employed at West
Lawrence Care in Rockaway, New York. Local 1115 was
currently bargaining representative at both of these facilities
and Morris Tuchman, Nelson’s brother, is attorney for the
two facilities.
For their organizing and related activities performed at
Windsor Castle, each of the five named individuals received
payments from Local 1115. Moore continued to receive his
regular weekly pay as organizer and each of the four others
received individual payments of $150 by checks issued on
October 13, with Norma Michel having received an addi-
tional payment of $375 on October 6.
On their arrival at Windsor Castle, according to employee
Connie Tillman, whose testimony in this regard was not con-
tested, none of the five individuals, or any others involved
in these interchanges having testified, Moore informed in-
service director, Meredith Lima, in charge of orientations,
that they were there for orientation. Lima told Moore she
knew nothing about it and would have to speak with her su-
pervisor. Although Joan McSherry, director of nursing serv-
ices testified she learned in the prior week from Fogel that
‘‘some people’’ would be coming up from New York on Oc-
tober 2 to fill positions on staff, having talked previously
about nurses aides, she failed to inform Lima, McSherry ar-
rived at work at 7:45 that morning. By that time the five4
individuals had been sitting in the foyer since 7 a.m., and
Lima was upset when she approached McSherry about the
matter. McSherry apologized to her, told her she hadn’t told
her that they would be coming and we would orient them.
McSherry testified that she then reviewed the five individ-
uals employment applications, noted their qualifications and
experience, and ‘‘presumed’’ they were going to be good
workers and told Lima we would orient them.
This procedure on hiring nurses, in particular, was some-
what irregular, and conflicted with Windsor Castle’s regular
practice. Windsor Castle normally advertised for nurses aides
already certified. These applicants were not certified in Con-
necticut, although they were in New York. Furthermore,
while there was a certification program at Winthrop, Windsor
Castle didn’t have one, and it did not normally certify nurses
aides. On the spot, Lima, who had never done so before,
gave the group of applicants a ‘‘challenge exam’’ in order
to certify them. No such exam had been given applicants
since Nelson Tuchman and others acquired Parkview effec-
tive June 1.
In addition to the five individuals who arrived together
from New York early on October 2, two others were in-
volved with Lima that day. One, Steve Waller, began work
as a nursing aide on October 2, and another, Leon Marte,
who began work in housekeeping in the prior pay period,
was given in-service training. Thus, when Connie Tillman
said she saw seven individuals at 7 a.m. on October 2 wait-
ing at the reception area, the group likely included, in addi-
tion to the five from New York, Waller and Marte.
Lima herself was sufficiently confused by the events that
morning, as acknowledged by McSherry, that she had Henry
St. Paul, Hired on October 2 as an employee for the dietary
department, complete forms relating to his hire as an experi-
enced nurses aide.
Inasmuch as Fogel had vouched for these five individuals,
McSherry had no compunction about immediately putting
them on the payroll after passing their challenge exam, even
though she would have normally checked references pro-
vided on an application, particularly with out-of-state appli-
cants such as these five.
After witnessing the arrival of the group of individuals
early on October 2 Tillman spoke with Charge Nurse Paula
Switzer at the nurses’ station. The record establishes that
charge nurses give CNA’s their daily work assignments,
issue written warnings and provide evaluations which are ef-
fective in determinations extending the 30-day probationary
period for CNA’s. That evidence establishes the supervisory
status under the Act of Charge Nurses. Tillman told Switzer
582 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 Her proper name is Ana Maria Pelaez, since changed to Marta
Mead.
what she had seen between the seven individuals and Mere-
dith Lima. Switzer responded that she had heard talk about
a Union coming in but she wasn’t sure if it was 1115 or
1199. She said that 1115 was a ‘‘management union’’ and
advised Tillman to keep it quiet.
On their hire, Tillman saw some of the five new employ-
ees on the floor that day. Moore, who had been assigned to
Laura Bates for his orientation, and one of the three females,
assigned to Julia Suggs for orientation, while working on the
floor, were talking in favor of 1115, handing out Local 1115
designation cards, and informing employees they were from
Long Island and they were there to start a union. Later that
day, in a patient’s room, Moore told Tillman and Bates that
he was from Local 1115, and he was there to organize. Till-
man told him she had never heard of 1115 but was familiar
with 1119 from a previous job. Moore responded that 1199
couldn’t help them, because they were in $40 million worth
of debt and they, himself, and the others were there to orga-
nize.
Tillman saw the same New York employees continue to
engage in the same activities on the following and successive
days of that week, basically doing more card circulating and
union soliciting than working. Other employees were also re-
cruited to solicit cards. One of the new female employees
from New York was assigned to Tillman for training on Oc-
tober 5. According to Tillman, this employee, although ap-
parently certified in New York, did not really know what she
was doing when Tillman assigned her to a bed patient for
morning care. While assigned to Tillman, this female solic-
ited her to sign an 1115 card, Tillman responding that she
couldn’t because she was still on her probationary period.
Tillman did finally sign a 1115 card later that day.
On the same day, October 5, Tillman observed Sandy
Moore making a call at a pay telephone by the breakroom
at 11:30 a.m. Tillman was 5 to 10 feet away. She heard
Moore say he had a majority of the cards signed and that
he did what Tuchman sent him there to do. Moore did not
testify and this testimony is credited. Whatever minor errors
in dates occurred in Tillman’s recital and including an in-
stance of Tillman’s memory being refreshed by a perusal of
her pretrial affidavit, they were not an indication of any pre-
varication by Tillman, whose presentation was straight for-
ward and credible. Upon hearing Moore’s comments Tillman
went to the nurse’s station and asked Charge Nurse Switzer
who Tuchman was. After explaining that she heard Sandy
Moore refer to him by name on the telephone Switzer told
her that Tuchman was the owner of the facility, Tillman told
Switzer what she heard and Switzer repeated her earlier com-
ments about 1115 being a management union.
Later that day, in a patient’s room, with other employees
Laura Bates and Julia Suggs present, Tillman asked Moore
who was Tuchman. At first Moore said he didn’t know. Then
after Tillman told him she heard him mention Tuchman’s
name and say that he did what Tuchman sent him there to
do, Moore now said, ‘‘Oh, that’s the owner of the facility
but I don’t know him.’’ Moore’s comment about his lack of
knowledge is not credited.
On the same day, October 5, Switzer, after having been
paged to Joan McSherry’s office, returned and told Tillman
that Joan would like to speak to her because she, Paula, and
Tillman, had a good rapport. Tillman went to McSherry’s of-
fice, and with only those two present, McSherry asked her
what was going on. Tillman asked what did she mean,
McSherry said, about the Union. Tillman said it seems to me
you know what’s going on. McSherry then asked what did
Tillman hear Sandy Moore say. Tillman told her that she
heard Moore mention Tuchman’s name and that he said he
did what Tuchman sent him there to do. McSherry then
asked who was circulating cards and Tillman told her Laura
Bates and Julia Suggs. McSherry then said that their con-
versation wouldn’t go any further. Tillman’s testimony about
this interchange is credited, particular in the absence of any
contradiction by McSherry who failed to refer to it during
her testimony.
Lamaara Davis learned on the evening of October 4, from
a fellow employee, Connie Walker, that the Union had ar-
rived at the New Haven facility. The next morning, October
5, Davis was introduced to Moore in the north wing of the
facility. They agreed to meet at 2:30 p.m. before Davis start-
ed work on her shift at 3 p.m. They met in the facility park-
ing lot by Moore’s car. Moore told her he was from the
Union and heard she was trying to get a union. She con-
firmed this. He told her he wanted to give her some cards.
When he showed her the cards Davis told him this is not the
union I was talking about; that Union is 1199. Moore said
1199 can’t help you because they’re in debt for like $40 mil-
lion. Moore told her ‘‘These are the cards you’re supposed
to sign. They sent 1115 instead.’’ He showed her his 1115
identification badge. Davis agreed to distribute the cards and
received 10 or 12 of them and then left.
Davis’ confusion about the two Unions, the one, 1199, she
had earlier supported by a petition she circulated and the
one, 1115, Moore said was now acting in its stead, expressed
to supervisor Anna Maxwell, and Maxwell’s admonition to
be careful, has been earlier described. Nonetheless, Davis cir-
culated the 1115 cards among some fellow employees, most
of whom had earlier signed her 1199 petition.
The evening of October 5, a Hispanic employee named
Ana Marie, who works in housekeeping, entered the
breakroom where Davis and other employees were having
lunch. Davis and the others immediately stopped their union-
related discussion because of an unwillingness to trust this
employee from another department. Ana Marie at first spoke
to another employee in Spanish, but then turned to Davis and
the others and asked if they had signed union cards yet. The
room became quiet. Davis and the others said they had not.
Ana Marie opened a briefcase full of 1115 cards and Davis
now told Latania Slerge it was okay, she’s with the Union
and told Ana Marie that she had already gotten cards signed.
When Ana Marie asked for them, Davis handed them over.
At this point Ana Marie received a page over the loud-
speaker that she had a telephone call, and she left. Davis
then went into her Supervisor, Anna Maxwell’s office. Max-
well told her ‘‘Lamaara, I told you to be careful and I’m
going to tell you again, because a phone call came in for
Ana Marie from Izzy Fogel. So just please be careful about
this union. Don’t say anything else.’’ At this point, Davis
ceased her open union discussions and solicitations.
According to Israel Fogel, an Ana Marie Colias,5 the same
person that Davis identified as involved in soliciting and col-
lecting 1115 cards and the recipient of a telephone call from
583WINDSOR CASTLE HEALTH CARE FACILITIES
Fogel the early evening of Thursday, October 5, at the facil-
ity, performs cleaning services personally for Fogel at his
house located in New Haven. While Fogel testified that he
usually leaves the facility Thursday night to return to his
then permanent residence in Pittsburgh, and thus would have
occasion to advise Ana Marie when he was leaving so she
could arrange to clean it, Fogel studiously avoided asserting
any claim that his paging of Ana Marie on the particular oc-
casion referred to by Davis was related in any way to her
cleaning duties. I thus conclude that it was not. The only
other logical explanation for his interest in Ana Marie at the
particular time was in her solicitation activities on behalf of
Local 1115 and I do conclude such was the case.
Curiously, Fogel, disclaimed any knowledge of any card
solicitation or organizing activity on behalf of 1115 during
the first week of October. His earliest claimed knowledge of
1115’s interest in Windsor Castle’s employees came about
on the same afternoon in question, October 5, when Morris
Tuchman, the attorney, informed him that someone from
1115 had contacted him, claiming that 1115 represented a
majority of Windsor Castle’s employees, and had made a de-
mand for recognition. Fogel then went over to Windsor to
meet and talk with Nelson Tuchman where, in the course of
a 1- or 2-hour meeting, they mutually determined to have
Morris Tuchman arrange to have an arbitrator at the facility
the following day to do a card count. In this conversation
Fogel claimed he related to Nelson his past experiences with
1115 and other unions, the process of arranging a union rela-
tionship, and the advantages and disadvantages of voluntary
recognition as against demanding an election, all in the con-
text of making a business decision.
Fogel’s understanding was that recognition had been de-
manded in a unit consisting of blue collar workers. Further,
although this was a matter of importance to the facility, hav-
ing major economic consequences, Fogel chose to have the
card count and its consequences handled in his absence from
the facility. He was leaving for Pittsburgh Thursday evening,
October 5, and was not returning until late Sunday or early
Monday, October 9. Fogel claimed that he delegated his re-
sponsibilities on this matter to an administrator, Linda
Urbanski. Before he left for Pittsburgh at 9:30 that night, late
in the afternoon, he told Urbanski that there was going to be
a card count on the following day, although the time had not
yet been set.
On Friday, between noon and 2 p.m. Fogel called
Urbanski from Pittsburgh to inform her that an arbitrator, Jay
Kramer, was coming down to Windsor Castle late that after-
noon to conduct a card count. By this time Fogel had been
informed of the time of the card count.
The record is silent as to the nature and timing of the ar-
rangements which were made with Kramer as to the card
check. Nathanial Hall testified that it was 1115 Vice Presi-
dent Paul Aldrich, who along with attorney Morris Tuchman,
made the arrangement with Kramer. None of the three testi-
fied in this proceeding. Kramer is one of the arbitrators
named in contracts 1115 has in the hospital and nursing
home industry.
Early on the morning of Friday, October 6, by prearrange-
ment Hall met with Moore in a parking lot in Westchester
County, New York. Moore had with him in his car at the
time, the four other New York individuals, Michelle,
Lennon, Paul, and St. Paul. They were on their way to the
New Haven facility. Under 1199 counsel’s cross-examina-
tion, Hall testified he asked Moore how he was doing, and
whether he had any more cards. Moore gave him some cards,
and Hall now testified that he told Moore he would probably
see him later that afternoon. Hall denied that he was then
aware of any arrangement for a card check by Kramer. Yet,
he knew Moore was going to the New Haven, Connecticut
facility and would not be released from work until late in the
day and his own area of work was on Long Island. In seek-
ing to extricate himself from this apparent slip, Hall finally
lamely explained that his purpose in seeing Moore was per-
sonal; Moore owed him some money. I reject this expla-
nation. Hall’s discomfort and lack of credibility in his re-
sponses when pressed on his inadvertent comment to Moore
are apparent on the record. I find instead that at this time the
card count had already been arranged and Hall, who later ar-
rived at the facility at 5 p.m., was informing Moore that he
would be in New Haven for the count by which time Moore
and the four others would have completed their stints as or-
ganizers and phantom employees for Windsor Castle.
Tillman testified without contradiction that on Friday, Oc-
tober 6, he was still assigned to training one of the female
New York individuals. That morning she was in a patient’s
room with her trainee, Julia Suggs, Laura Bates, and Sandy
Moore. The trainee told Moore that she was ready to go,
‘‘Let’s go.’’ Moore told her to be cool, that he had to wait
until some one whose name Tillman didn’t recall (Nathanial
Hall?) brought them the other cards. The female trainee
pressed Moore that she was ready to go, that they had
enough cards. Moore repeated that he had to wait for the
other cards, but that once they got them, they were going to
leave. Moore explained that he was going to go up to Joan
McSherry and start a big argument and he was going to
leave.
Later that morning Tillman saw all five of the New York
individuals gathered in front of the nurse’s station and talk-
ing with each other. She saw Moore make a telephone call,
and then they all left. The five individuals punched out about
10:45 a.m. and left the parking lot in a small station wagon.
After they left, McSherry came to the North Wing nurse’s
station and asked head nurse Mary Adair what had happened.
Adair responded she didn’t know, she thought evrything was
okay.
After about half an hour to three-quarters of an hour the
five individuals returned to the facility. Tillman saw Moore
and asked him why he came back. Moore said his supervisor
(in Local 1115) told him to come back and finish out the
day. McSherry testified that when they returned she signed
their cards and had them go back to the floor at 11:30 a.m.
She said she did this because these were four people taken
away from care, and they could assist at lunch for the pa-
tients. This treatment of the five employees who left their
work stations and the facility without any excuse whatsoever
was extraordinary. Shortly afterward McSherry learned that
her nursing supervisor and the employees on the floor were
very upset upon learning that Moore had only returned when
he was told to do so by the Union. As McSherry put it, ‘‘the
aides had told the supervisors [that Moore told them he had
called the union and the union told him to come back]. The
nurses were all up in arms, and the supervisors came up to
me in the hall and said we have a problem, something’s
wrong, and everybody was all upset.’’ Tr. 861.
584 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Under these circumstances, in which I conclude
McSherry’s hand was forced by events outside her control,
McSherry now called Moore to her office. She asked him
what was going on, that people were saying that they had
called, and he was representing, a union. When Moore re-
plied it was none of her business and became arrogant,
McSherry told him to get the other people that came with
him and leave. When Moore protested that he was the only
one who has a problem, McSherry said you came together,
you’ll leave together and she called the others up to tell
them. During this confrontation Administrator Urbanski was
also present. When they arrived McSherry told them she was
going to terminate them. According to McSherry, Uvonne
Lennon wanted to stay but all were terminated. Curiously, al-
though McSherry terminated them at midday, and they all
punched out between 12:53 and 12:58 p.m. she wrote on
their timecards they were to be paid a full 8 hours for the
day. This decision to pay for a half day not worked as well
as for 45 minutes in the morning when the group left the fa-
cility without authorization, contrasts sharply with the experi-
ence of other employees who were forced to leave early
whether for personal reasons, injury, or when terminated.
Moore had achieved his earlier stated objective of foment-
ing a confrontation that day in which he and the others were
fired. McSherry permitted and rewarded conduct by a small
group of ostensible employees on their last day which was
highly unusual and contrary to employer policy and practice
and followed a week during which they acted as paid orga-
nizing agents of the Union, Local 1115, performing a min-
imum of duties as employees under the very nose of the
Windsor Castle administration. I conclude that both Fogel
and McSherry were disingenuous in denying knowledge of
the New York group’s conduct prior to Friday, October 6,
and in authorizing their employment and retention under cir-
cumstances where Windsor Castle was aware that these five
individuals upon their arrival at the facility were engaged pri-
marily in organizing activities for the week and, further, that
they intended all the while to sever their relationship with
Windsor Castle upon achieving their avowed and open orga-
nizational goal.
It is also evident, based upon the evidence of Moore’s
conduct, in particular his telephone calls and statements to
employees, that Fogel, who reported directly to Nelson
Tuchman, was privy to a Windsor Castle scheme to recruit
1115 organizers as ostensible employees who would solicit
designation cards over a short period of time sufficient to
warrant an impartial card count leading to an immediate rec-
ognition of, and early entry into a collective-bargaining
agreement with, Local 1115.
McSherry’s confusion concerning her role in terminating
the New York individuals only serves to strengthen the find-
ing I have made regarding her implication in the unlawful
scheme. At first McSherry testified that on the afternoon of
October 6 she spoke with Fogel by telephone about her firing
of the New York group. At that time he told her that if they
were representing a union and she had terminated them and
had them leave the building, she would be liable for unfair
labor practices. Fogel then told her to offer them their jobs
back. Later, on cross-examination, McSherry now recalled
that it was Linda Urbanski who in her presence had tele-
phoned Fogel in Pittsburgh and been instructed by him to
offer the group their jobs back. McSherry insisted that no
union was mentioned during this interchange and no mention
was made during it of the card count scheduled for later in
the day, although Urbanski had been so informed in a tele-
phone call from Fogel made between noon and 2 p.m.
McSherry waited until Wednesday, October 11, to send
letters to the New York group. This was a day following the
leafletting by District 1199. Although McSherry admitted
there was no real likelihood they would return to work on
Monday after the confrontation and discharges on the prior
Friday, incredibly she nonetheless waited because there was
‘‘a possibility, he was so arrogant, he may have come back.’’
Tr. 922. When, of course, Moore and the others did not re-
turn, McSherry sent a certified letter to each of the four nurs-
ing aides, excluding Henry St. Paul, the dietary employee not
under her supervision. She did not follow Fogel’s instruc-
tions as she described them. Her letter did not offer reinstate-
ment, as directed, but rather treated the four as continued
employees who were expected to return to their work sched-
ule on Monday, but since they did not appear, were being
given another change to return. A web of lies was being
woven to create the impression that the four continued to re-
tain their status as employees through the late afternoon card
count on October 6. The letter read:
You were scheduled to be at work on Monday, Octo-
ber 9, 1989. We are interested in your continued em-
ployment. If I do not receive a response from you by
Friday, October 13, 1989, I will conclude you have
abandoned your position at Parkview Nursing Home,
Inc.
McSherry insisted the four to whom she wrote were on the
work schedule for Monday, even though she had fired them.
She also admitted she was not interested in having them re-
turn. She further claimed that she was afraid of being held
liable for unfair labor practices even though she had fired
Moore and his associates after they walked out of the facility
without notice for an hour and after coming back had acted
in a very arrogant manner.
None of the fired group ever returned to the facility to
work in response to the letter and none filed an unfair labor
practice charge. In my judgment, the asserted fear which im-
pelled Fogel to insist on a letter offering the New York con-
tingent an opportunity to retain their jobs shielded the true
motive which was an attempt to establish that the cards
signed by at least four of the five to be submitted on the up-
coming card check later in the day, would be validly in-
cluded in the count. Apart from their status as employees at
all, a serious issue on which I conclude, infra, that the five
New York individuals were not bona fide employees whose
cards could be counted in determining Local 1115’s majority
status at the time Windsor Castle granted it recognition, Re-
spondents argue that on the day on which 1115’s majority
status was determined, the five had an expectancy of contin-
ued employment by virtue of Windsor Castle’s later written
invitation to them to continue their employment. As I have
concluded, that invitation was not made in good faith. Re-
spondents make a final argument that inasmuch as the five
were employed on the day of the card check Board precedent
supports their inclusion in the unit for purposes of union rec-
ognition. Unfortunately, all of the five were terminated hours
before the card count was held and it would be a perversion
585WINDSOR CASTLE HEALTH CARE FACILITIES
of the principle upon which Respondents rely to permit rec-
ognition to be supported by designations cards signed by per-
sons, who, at the time of the count, were no longer employ-
ees.
On Friday afternoon, Local 1115 Business Representative
Pat Berry and Nat Hall, picked up Arbitrator Jay Kramer on
Long Island and brought him to Windsor Castle to perform
the card check. Hall’s trip to New Haven was consistent with
his early morning promise made to Moore. They arrived at
about 5 p.m. In spite of his earlier discharge, Moore was still
at the facility, and presented additional cards to Hall on his
way in to the count. Linda Urbanski represented Windsor
Castle at the card count. She supplied business records and
W-4 forms for signature comparison. Berry and Hall attended
for Local 1115 as did dischargee Norma Michael. Sandy
Moore was ‘‘in and out’’ during the card check.
Although both Respondents rely heavily on the card count
and arbitrator Kramer’s award and order, see infra, as estab-
lishing beyond peradventure Local 1115’s majority status
among certain of Windsor Castle’s hourly employees, neither
Respondent was able to present any oral or documentary evi-
dence to establish what Arbitrator Kramer reviewed in deter-
mining the composition or scope of the bargaining unit in
which he conducted the count, or which designation cards
were presented to Kramer to establish 1115’s majority show-
ing. The only witness offered by Respondents who was
present at the count, Nat Hall, did not describe with any de-
tail or precision any of the material reviewed by Kramer,
other than the use of either a W-4 or some other type of pay-
roll record for comparison of signatures on the designation
cards. Fogel, not present at the count, when questioned about
the matter could not identify what information Kramer was
given to establish the unit or the majority showing. The Re-
spondents asserted that the cards utilized in the count were
not segregated and could not possibly be identified by the
time of trial. Linda Urbanski, Windsor Castle’s representative
at the count, was not called as a witness, and while she ap-
parently left Windsor Castle’s employ a year prior to the in-
stant trial, after being asked to resign, no effort had been
made to contact her or subpoena her to appear as a witness.
Fogel testified that there was bad blood between the two
when Urbanski left, but he also admitted that locating her
whereabouts was not a problem, and that she may have pro-
vided truthful testimony about the events at the card count.
Under these circumstances I am constrained to infer had
Urbanski been called to testify as a witness by Windsor Cas-
tle her testimony would not have been favorable to its de-
fense that its voluntary grant of recognition and later execu-
tion of a contract with 1115 were based on a valid majority
showing among unit employees.
While it cannot be established definitively, it is highly
likely that the cards of the five New York contingent were
submitted to Kramer, who, in his award and order identified
one of them, Norma Michael, as being present as an observer
for 1115. As earlier noted, Linda Urbanski did not testify and
there is no evidence that she informed Kramer that they had
been terminated earlier in the day, although, she had been
present when McSherry took that action.
In his award and order he dated and acknowledged on Oc-
tober 10, Kramer described the appropriate unit as consisting
of blue collar workers only, including nurses aides, orderlies,
dietary aides, housekeeping/laundry aides, maintenance aides,
and security. Later on the same day he issued a correction,
expunging the classification of security from the unit.
Kramer determined that of 102 eligibles in the unit, 53 by
valid signatures had designated and selected Local 1113 as
their collective-bargaining representative. On the basis of that
result and his certification that 1115 was the exclusive rep-
resentative for the employees in the described unit, Windsor
Castle immediately granted Local 1115 voluntary recognition
in that unit.
On the same day, October 10, that Kramer issued his
award and certification, representatives of District 1199 ap-
peared outside the New Haven facility to leaflet and talk to
employees. Lamarra Davies testified without rebuttal that
after seeing the 1199 representatives outside and upon enter-
ing the facility that day a little after 3 p.m., she saw her
nurse, Alice Garliglio come running in, stop Joan McSherry
and tell her ‘‘the union is out there, they’re out there, they’re
all over the place.’’ When McSherry asked Garliglio who
they were, and Garliglio replied ‘‘the people from 1199,
they’re all out there,’’ McSherry now responded, ‘‘well,
don’t worry about it. You know, it’s taken care of. Don’t
worry about it’’ and then walked into her office. (Tr. 251.)
Shortly after the card count steps were undertaken between
Windsor Castle and Local 1115 to quickly negotiate and exe-
cute a collective-bargaining agreement. Fogel returned to the
facility from Pittsburgh on Tuesday, October 10. By
Wednesday, October 11, he and Attorney Morris Tuchman
had held several conversations and had exchanged faxes con-
taining items to be included in a contract, including starting
rates, increases, sick days, holidays, dates, and related mat-
ters. It appears that Fogel was supplying Morris Tuchman
with responses to some of the demands being made by Local
1115. A meeting was then arranged by Tuchman to have
Fogel meet with David Aldrich and Nat Hall at the Norwalk
Holiday Inn on Thursday, October 12, to conclude a memo-
randum of agreement.
During this period of time, according to Hall, he had no
contact at all with the Windsor Castle unit employees, and
there is no evidence that anyone else from 1115 did so. It
was Hall’s position that there was no need to call a meeting
of employees to introduce their new representatives and seek
to ascertain their desires on the upcoming negotiations, be-
cause ‘‘that is not always done’’ and because he had re-
ceived information from Pat Berry and Sandy Moore that
they had consulted ‘‘a number of employees’’ with respect
to union demands.
According to Fogel, although Morris Tuchman and 1115
officials were negotiating a contract over the telephone and
by fax before the October 12 meeting, there were still some
issues to be resolved at the meeting. Fogel recalled that he
and Aldrich and Hall worked out a final starting pay rate,
final increases, bonuses based on hours worked and dis-
cussed but did not conclude the matter of health insurance.
However, on reviewing the memorandum Fogel agreed that
insurance coverage was resolved, with the agreement provid-
ing that the current health insurance plan would be continued
with certain modifications and at no cost to the employee.
Fogel arrived about 1:30 p.m. and the meeting continued
to 4 p.m., with the participants sitting in the lobby. Fogel re-
cited that several drafts were reviewed during that time.
Fogel was in touch directly with Morris Tuchman through
Windsor Castle, and changes to an initial draft apparently
586 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 This action was one of the complaint allegations settled at trial
and severed from the instant proceeding.
7 The name is misspelled Baisczewski in the complaint.
8 The provision is hardly an example of good draftsmanship. Per-
haps the proofreading left something to be desired or was it undue
haste in the execution? This is what the parties executed: ‘‘the Em-
ployer shall promptly upon hiring new employees notify them of the
existence of the Union to the Employer than an employee has not
complied with the Union shop requirements, the Employer shall
forthwith discharge said employee and forthwith advise the Union
thereof in writing.’’
9 The Regional Director’s Decision and Direction of Election,
dated December 21, 1989, rejecting the contention of the Employer
and Intervenor 1115 that their contract should serve as a bar to the
petition because to do so where it was executed while organizational
efforts were underway by two competing unions would serve to un-
dermine the principle of the freedom of employee choice, was re-
manded to the Regional Director in a Decision on Review issued by
the Board on May 25, 1990, in which the Board rejected the Re-
gional Director’s application of recognition bar doctrine to the facts
presented, found that the hearing officer had erred in failing to admit
the October 12 memorandum into evidence as a claimed contract,
and directed further proceedings consistent with its decision, includ-
ing a determination of the applicability of the contract bar doctrine
to either the collective-bargaining agreement or the October 12
memorandum. The election was held on January 8, 1990, but the
ballots were immediately impounded pending the Board review. To
date, and pending the resolution of the instant proceeding, no further
action has been taken by the Regional Director on the petition.
brought to the meeting were faxed from Tuchman’s office,
first to Windsor Castle, and then by an employee messenger
to the parties in Norwalk, and later, Winthrop, and delivered
by a courier from there. The bulk of the changes were agreed
to in the first 20 minutes of the meeting, and the last fax rep-
resented a clean copy with perhaps several additional
changes and in a form which the parties could sign. Before
signing the memorandum, the fax data was removed from the
top of the pages, and the pages were xeroxed. The final
version, indeed, none of them, contains a recognition clause,
recognition having been granted orally on October 10, but
the unit is described as a service and maintenance unit, and
it was agreed, inter alia, that the language, not economics,
of the agreement shall be as that found in the Bristol Manor
Nursing Home agreement except the probationary period
shall be 90 days.
The record contains three versions of the memorandum;
one, an apparent final form containing the handwritten date
of October 12 and the signatures of Hall and Fogel; with the
other two containing a few handwritten question marks and
minor handwritten revisions, neither of which latter drafts
bear date or signatures. A review of the documents shows
that few revisions of substance were made to the initial draft,
contrary to Fogel’s assertions.
Fogel defended the arrangement to meet in a Norwalk
Motel, 35 to 40 miles from New Haven and the Windsor
Castle facility and direct access to communicating, dupli-
cating and transmitting equipment, and counsel, on the
ground that it was equidistant between the parties, and fur-
ther, defended the timing and circumstances of a meeting, at
which few, if any, items of substance had not already been
worked out, and at which elaborate arrangements had to be
made to produce a final document, on the further ground that
he wanted to have a final thing to sign, and the earlier draft
was too messy to do that. Left unstated at the time, but clear-
ly acknowledged under further questioning, was the fact that
Fogel was aware that by October 12, District 1199 had ap-
peared in front of the facility and was distributing literature
and talking to employees. Thus, speed in executing a memo-
randum and final agreement was clearly a matter of some ur-
gency to all concerned.
Following 1199’s appearance outside the facility on Octo-
ber 10, Lamarra Davis, who was given a 5-day6 suspension
by Windsor Castle on October 14, meet with District 1199
Organizer John Neale immediately afterward. She told him
about her prior attempt to gain support for 1199, her rebuff
in that attempt by Sandy Moore and her signing of a card
for 1115 because she thought that was the only union there.
She agreed to obtain designation cards for 1199 and in a
week’s period signed up about 30 employees.
When Davis informed supervisor Anne Maxwell of her
suspension, Maxwell confirmed her earlier advise to be care-
ful. Nonetheless, Davis began her open solicitations for 1199
the following day, as did Connie Tillman and other employ-
ees given cards by Neale. Admitted shift supervisor, Lee
Barsczewski,7 also warned Tillman to be careful.
Then, on October 16, Supervisor Maxwell informed Davis
she had been terminated by McSherry for showing ‘‘favor-
itism’’ to Davis, and because Maxwell had not informed
McSherry what she knew about Davis’ Union activities. The
apparent favoritism had been Maxwell’s refusal to discipline
Davis on October 12 for an incident involving a patient for
which she was suspended 2 days later by McSherry and on
the basis of which action the allegation was included in the
complaint which was settled at trial.
On the same day, October 16, Fogel again met with Al-
drich and Hall to sign a full collective-bargaining agreement,
changes were made, proof read and initialed and the agree-
ment was signed by Aldrich and Fogel. The bargaining unit
is described as ‘‘all employees, excluding licensed practical
nurses, registered nurses, office and clerical employees, su-
pervisors, watchmen and guards.’’ The agreement also con-
tained a union shop provision and required the Employer to
discharge any employee not complying with the provision.8
On the following day, October 17, District 1199 filed a
representation petition in Case 34–RC–922.9
Although a sign had been posted by the timeclock on Oc-
tober 12, announcing a meeting by 1115 with employees to
be held the following Wednesday, October 18, the meeting
was rescheduled when Pat Berry and Nat Hall showed up in
the afternoon and informed employees that they had been
held up in Hartford and were meeting McSherry that day.
When asked about the contract, they told employees every-
thing was squared away, it had been faxed to Fogel, but they
didn’t have a copy with them.
Subsequently, on or around October 24, at a 2-hour meet-
ing held with employees, Hall and Berry handed out high-
light sheets and explained the benefits negotiated in the con-
tract.
A set of minutes show that at an emergency meeting
called among department heads on October 26, Fogel pre-
sented the topic of the collective-bargaining agreement made
on October 12 to represent Blue Collar employees. He re-
viewed the litigation between the two unions which had en-
gendered controversy. He referred to a ‘‘Closed Shop’’ (pro-
vision) which he defined as requiring ‘‘newly hired employ-
587WINDSOR CASTLE HEALTH CARE FACILITIES
10 The incorrect designation of Nelson as ‘‘Milton’’ at Tr. 168, l.
20 is hereby corrected.
11 This version differs from the one she was originally given in
that it omits any reference to litigation between the Unions and in-
cludes a reference to the October 16 collective-bargaining agreement,
absent from the first.
ees to join the union within three (3) months of employment,
or termination may result.’’ The attendees were informed that
the obligation of newly hired employees to the Union would
be incorporated into orientation procedures, and that union
cards may also be issued during such time.
There is unrebutted testimony that Fogel added to or de-
parted from the minutes to discuss retroactive raises as well
as noting that the owner’s brother was an attorney who dealt
with labor unions.
A hearing on the petition in 34–RC–922 was held on No-
vember 3. Lamarra Davis was subpoened to testify. After re-
ceiving it, she gave it to Fogel in the hallway in front of
McSherry’s office. She told Fogel she wouldn’t be able to
come into work that day because she had to testify at a hear-
ing. Fogel called McSherry over, and asked Davis ‘‘Is all
this really necessary?’’ When Davis replied she believed it
was, Fogel told her ‘‘You know, this can cause a lot of trou-
ble, a lot of problems.’’ Davis said she didn’t believe so.
Fogel persisted, asking Davis, ‘‘Well, why are you doing
it?’’ David replied, ‘‘For liberty and justice for all.’’
McSherry then told her she would not get paid for it and
Davis said it didn’t matter. They said ‘‘fine, ok’’ and Davis
left. Davis is credited on this interchange.
Marianne Hally, director of social services, was subpoened
by District 1199 Attorney Jamie Mills on November 10 to
appear at the November 13 hearing in the representation pro-
ceeding. Hally told Mills she was not in any union. Hally
was also asked and told Mills about her job duties. After this
conversation Hally called Urbanski to her office, handed her
the subpoena and asked if she, Urbanski, knew anything
about it. Urbanski said she would have to contact Fogel to
find out what to do. Hally asked if this had anything to do
with Urbanski wanting her to take Friday off. (Urbanski had
previously pressed Hally to take Friday, November 10, off,
purportedly to reward her good work and to relieve pressure
and stress). In Hally’s presence, Urbanski proceeded to call
Fogel, left a message for him, and then got a Tuchman.
While on the phone she asked Hally who subpoened her and
what she looked like. Hally then handed Urbanski a check
signed by Jamie Mills. Urbanski said she would be in touch
with Morris Tuchman and then get back to her. She then told
Hally she did not have to show up at court and honor the
subpoena. Hally said she would have to speak with her
brother who was an attorney. She asked Urbanski if she had
been subpoened, and Urbanski replied that she had, but she
didn’t have to appear, that ‘‘Mr. Tuchman’’ would represent
her. She also stated that Nelson Tuchman10 was trying to
stay away from the facilities since the people who subpoened
Hally were trying to subpoena him.
About an hour later Hally was paged to Urbanski’s office.
Urbanski was on the phone. She handed it to Hally. Fogel
was at the other end. Fogel asked her if she knew what any
of this was about. Hally said no. He asked her if she remem-
bered the department head meeting on October 26. She said
yes. He wanted her to relate what she recalled from that
meeting. Hally said she recalled collective-bargaining and
closed shop. He wanted to know what those meant. She told
him the only one she knew was closed shop. She told him
what it meant. He then asked who had subpoened her and
what was said. She then related the conversation with Jamie
Mills. Fogel then told her to tell the truth, not to be nervous,
and Morris Tuchman would meet with her on Monday before
the hearing. As Hally left the office Urbanski gave her her
beeper number and her home phone number and said to call
over the weekend if she had any problems or questions.
On Sunday, Hally called Urbanski to say she had spoken
to an attorney friend who told her she needed to honor the
subpoena. Urbanski said that wasn’t true, that she needed to
come to work and not to go to the National Labor Relations
Board on Monday. Hally said okay, and hung up.
On Monday morning, Hally called in for Urbanski. As
Urbanski was on another line, Hally left a message saying
that she would miss work because she was honoring the sub-
poena. Hally testified at the hearing. On the following day
she was paged to Fogel’s office. When she arrived Urbanski
was also there. Fogel told her he had heard she testified yes-
terday and according to the transcript there seems to be some
‘‘confusion’’; he just wanted to ‘‘clarify a few things.’’ Tr.
173. He proceeded to ask her some questions about who re-
ported to who such as did the nurses aides report to Linda
Urbanski. She said no. He started to read some of the testi-
mony from the transcript. He handed her a job description,
and said he thought she needed a better understanding of her
job and duties. He also gave her a copy of minutes from the
October 26 department head meeting,11 which had an attend-
ance form attached. He told her it was best for her to review
these and become familiar with them. Hally responded that
this was a form of harassment and retaliation, and then left.
The day after this meeting, Theresa Pepe, director of recre-
ation, told Hally that Linda Urbanski was angry that she had
appeared at the hearing and wanted to fire her for insubor-
dination. After the hearing the relationship between Hally
and Urbanski deteriorated. Urbanski avoided Hally in the
Hallways. Urbanski would not acknowledge Hally’s greetings
and appeared very angry and hostile towards her. Sometime
later, when Hally was being evaluated she asked Urbanski
why she was angry with her. Urbanski said she was angry
because Hally had appeared in court and that Tuchman did
not expect her to show and it caused a great inconvenience
for the nursing home. Hally’s 8(a)(3) and (4) allegations
were settled during trial. While Respondent failed to take a
position during trial whether Hally was a statutory supervisor
or managerial employee, in its brief at page 24 Windsor Cas-
tle asserts that Hally was managerial. Its belated position is
rejected and this issue will be discussed, infra.
Sometime in November Lamarra Davis and Julia Suggs
accompanied maintenance employee Bruce Bains to
Urbanski’s office because Bains had said he and an Angela
Cooper had not received their 50-cent increase due on com-
pletion of their probationary period. When Davis asked
Urbanski about this, Urbanski said he didn’t get the raise be-
cause they were getting a 30-cent-per-hour raise from the
Union. Davis responded that the Union’s raise had nothing
to do with it because the employer had told them about the
raise when they were hired. Urbanski now replied, ‘‘Well,
that’s what happens when you have unions. You know you
588 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
can’t get the 50 cents because you’ll receive 30 cents from
the union.’’ Davis said that has nothing to do with it, and
Urbanski repeated that’s what happens when you get unions.
Davis filed a charge in the time period when she was testi-
fying at the representation hearing. A few days later she told
Urbanski that there had been a mixup and she had not in-
tended to file the charge specifically against Urbanski, but
rather was filing against Joan McSherry. When Urbanski
asked why she had been named, Davis said my problem is
with McSherry because ever since the conflict between 1115
and 1199 somebody’s constantly on my back and it’s been
McSherry. She kept getting writeups every day. Davis noted
that her support for 1199, trying to get it in here was no se-
cret. Urbanski acknowledged Davis’ union support, but de-
nied knowledge that she was being harassed about it, and
agreed to have a talk with McSherry about it.
As earlier noted, the representation election was conducted
on January 18, 1990. Prior to it, Connie Tillman circulated
a petition signed by over 20 employees expressing support
for the Labor Board’s decision not to recognize the ‘‘phony
contract’’ negotiated by 1115, and for 1199, and threatening
a strike if Windsor Castle interfered with the election. A
strike vote was held among 1199 employee supporters on or
about January 8, 1990. After the election, on January 31,
1990, District 1199 sent a strike notice to Windsor Castle
and the Federal Mediation and Conciliation Service and
threatened to strike on February 12, 1990.
On February 7, 1990, Nelson Tuchman called a meeting
of all staff of the facility. According to Connie Tillman, and
not contradicted by any of the Respondent’s witnesses, she
had not attended any such meeting before or since this date.
Tuchman who spoke to the assembled group, also prepared
and distributed to the employees, along with their paychecks,
on February 8, a two-page letter presenting Windsor Castle’s
reactions to the strike notice. At the meeting, Tuchman told
the employees that if they went out on strike they would be
fired, and that strike was illegal because 1115 is the recog-
nized representative and 1199 cannot, therefore, legally strike
or issue a strike notice. Tuchman also claimed that the Na-
tional Labor Relations Board said 1199’s 10-day strike notice
was illegal, and they had to send a 30-day notice. He com-
pared the two unions to Coke and Pepsi, and disparaged both
as fighting for the employees’ dues. However, Tuchman then
went on to highlight the benefits provided under the 1115
contract and described them as being far superior to increases
in a 3-year contract recently negotiated by 1199.
In the letter, after reciting the matters he presented orally
on February 7, Tuchman made pointed reference to the fact
that facilities that signed with 1199 were laying off employ-
ees left and right.
During the course of the meeting, Tillman challenged
Tuchman about employees not receiving their raises on com-
pletion of their probationary period. Tuchman said he wasn’t
aware of their raises being taken away. Tillman re-
sponded,‘‘You’re the owner of this facility, and you don’t
know what’s going on here.’’ She added she knew exactly
what was going on, and if she had known he was going to
call a meeting, she would have brought the contract she had
from the prior hearing. Tuchman asked Fogel who she was
and took Fogel into the hallway for a brief discussion. When
they returned, Tillman was now ignored on every question
she put to Tuchman. But Tuchman did ask Tillman if she
was prepared to be sued, and all the other employees, if they
followed her out on strike. Tillman responded that he
couldn’t get blood from a turnip.
Also on February 8, Union Representative Steve Maritas
accompanied by a group of ‘‘tall, big, husky men’’ arrived
at the New Haven facility. Tillman saw them walking all
around the building. Tillman also saw Fogel up in the front
as she was coming down the hall, and he pointed to her, and
the men followed her into a patient’s room. As they entered
they ran into Laura Bates, another unit employee. One stood
in front of Bates, and one behind her, and they advised Bates
and Tillman to call off the strike or else there would be re-
percussions.
As the men were standing by the nurses station, Shift Su-
pervisor Mary Adair tried to get them to calm down, because
they were upsetting the patients, and asked them to leave the
floor. They told her that they had a right to be there, and
that if the employees didn’t call off this strike, what they
were going to do to them. One of the men said they take
on bimbos like us all the time. Mary Adair called Joan
McSherry to come to the floor. Adair told McSherry that the
men did not have a right to come on the floor to upset the
girls and the patients and that they also had pointed in her
face. McSherry replied that they had a right to be there, and
there was nothing that she could do about it. When Adair
then asked, what about patient’s rights, McSherry did not re-
spond and left.
The only witness called by either Respondent to rebut Till-
man’s account of the foregoing events of February 8 was
Maritas who denied calling any employees bimbos or telling
any of them that he knew how to take care of people like
them (who refused to call off the threatened strike) or even
being at the facility at any time before May 1990. Maritas
contradicted this latter testimony when he admitted, under
cross-examination, that he had been at the facility sometime
in March, prior to being assigned as 1115 representative to
the facility in May, in relief of Pat Berry. Based on Maritas’
casual and frivolous manner on the witness stand, the serious
contradiction regarding his first visit to the facility, and the
overall unpersuasive nature of his testimony and inability to
recall facts regarding his first assignment to the facility, I
discredit his denials, and credit Tillman’s account of the
events of February 8, 1990. I also do not credit Maritas
whenever either Tillman or Harriet Banks have attributed
statements to him on later occasions in the spring of 1990
at the facility.
In the spring of 1990, Maritas was at the facility on a reg-
ular basis seeking employee executions of dues-checkoff au-
thorizations for 1115. In either March or early May, depend-
ing on which recollection between employees Harriet Banks
or Connie Tillman is more accurate, but whose testimony
otherwise is corroborative of each other, Maritas approached
nurses aides Banks and Tillman on the floor. The employees
were together, having come out of a patient’s room. Maritas
asked Banks if she was in the Union, and she told him no,
she wasn’t and didn’t want to be. She also told him her 90
days weren’t up anyway. Maritas, nonetheless, asked her to
sign a checkoff card which may also have contained an ap-
plication for membership. When Tillman asked why he was
asking Banks to sign if her probationary period wasn’t up
yet, Maritas responded that he wasn’t coming back. When
Tillman asked how he was going to represent them, Maritas
589WINDSOR CASTLE HEALTH CARE FACILITIES
said that certain employees would be union delegates.
Maritas also offered to waive Banks’ initiation fee if she
signed, but Banks declined.
The three continued to argue back and forth, with Maritas
exclaiming at one point, that it was clear who Tillman was
supporting. Tillman was wearing a 1199 button. Tillman
pressed Maritas about terms of the contract that he had and
Maritas told her that it was a closed shop and they would
be fired if they didn’t sign. When Tillman raised another
question pertaining to the contract, Maritas said he wasn’t
going to stand there and let Tillman intimidate him anymore.
He put the cards and paraphernalia back in his briefcase and
walked away from them.
Maritas continued to approach Banks after this first en-
counter. The following week Maritas spoke with her on the
floor while she was with a patient. He asked if she was
ready to join the union yet. Banks again declined and again
informed him her 90 days was not up. At the end of that
month of May, according to Banks, Maritas now told her on
the floor that he had a contract with the facility, and that ev-
eryone had to join by a certain time and basically she had
to join. At this time Banks was again engaged in patient
care.
On May 24, 1990, Windsor Castle posted and distributed
to employees with their paychecks a memorandum signed by
new administrator, Margaret Bucknall, informing them that
‘‘the contract requires that all eligible employees sign check-
off authorization cards and become members in good stand-
ing as of June 1, 1990. If eligible employees do not comply
with this union request, the facility will be obligated, by con-
tract, to discharge such employee(s). You must obtain these
checkoff authorization cards from Carol Walker in Per-
sonnel.’’ The following day, another memorandum was post-
ed at the timeclock which stated ‘‘Please disregard the recent
memo concerning checkoff authorization. The memo was er-
roneous and all union business will be handled by represent-
atives of 1115.’’
A letter followed in June 1990, from Local 1115, signed
by Aldrich, which informed employees that the ‘‘Union has
a Union Shop Agreement with your Employer. The Union
Shop Clause requires you as a condition of employment to
become and remain a member of our Union in good stand-
ing.’’ It then informed employees that they were obligated to
pay $15.00 per month for union dues. It stated that employ-
ees could sign a checkoff authorization or make payments di-
rectly themselves. It then stated that if ‘‘you do not meet
your obligation, in accordance with the Union security provi-
sion of the Union agreement, our Union will have no alter-
native but to request your Employer to discharge you.’’
Maritas continued to go after employees to sign union
cards at the facility. Sometime in September he again ap-
proached Tillman and Banks. Tillman told Banks that she
didn’t have to speak with Maritas, Banks told Maritas she
would not talk while she was doing patient care, and they
both left. Shortly afterward both employees were told to go
to McSherry’s office. As Banks was treating a patient in a
whirlpool bath, her charge nurse and immediate supervisor,
Rose Stockman, relieved her of immediately responding to
McSherry’s order. A half-hour later Banks and Tillman were
emptying linen near McSherry’s office when they saw
Maritas in the hallway and McSherry come out of her office.
McSherry told them that Maritas wanted to speak to them
and they should hear what he has to say. Nurse’s aide Ro-
chelle Ramsey was also nearby. When Tillman and Maritas
started arguing McSherry asked them to move into the staff
dining room. Maritas got the 1115 shop steward, Michael
Williams, to come to the room over Tillman’s protest that
she didn’t want 1115 representation because she was not a
member.
Banks recalled Maritas now told them, ‘‘I’m tired of fool
games. I’m tired of playing games. Here’s the contract. If
you don’t sign this . . . [he had a form authorizing union
dues to be taken out of salary] I’m going to ask the employer
to terminate you.’’ Tillman recalled Maritas referring to the
card as ‘‘a union card.’’ The card was either a dual-purpose
application for membership and dues-checkoff card or it only
contained a dues-checkoff authorization form. In either case,
Maritas’ conduct in threatening their discharge for failing to
execute the card went well beyond the legal requirement
under a valid union shop clause that employees tender the
dues uniformly required as a condition of acquiring member-
ship in 1115 in order to avoid the adverse consequences of
union enforcement of this clause. Maritas also referred to the
contract, which he produced from his briefcase, as containing
a closed shop. Tillman told him do what you have to do, and
Maritas said he would submit their names to Administrator
Margaret Bucknall, to have them fired.
After the meeting, Banks asked McSherry if she would be
fired if she didn’t sign. In a reply not contradicted by
McSherry, the nursing director told Banks, ‘‘I don’t know
what’s going on. You have to do what they say. He is the
boss. He’s handling things. You listen to what these people
are telling you.’’ Banks then left.
In September 1990 Local 1115 distributed another letter to
employees identical to the one it had distributed earlier in
June, referring to employee obligation to comply with the
union shop clause at the risk of loss of their jobs.
On October 28, 1990, Local 1115 posted several docu-
ments on the union bulletin board, including three letters ad-
dressed to Bucknall demanding that Banks, Ramsey, and
Tillman be discharged for not being ‘‘a member in good
standing in the union as a result of his/her failure to pay
dues.’’ Local 1115 also posted a notice stating that ‘‘This is
a Union Shop. As of November 1, anyone not signed with
the Union will pay $125.00 initiation fee.’’
After seeing the notices, Banks, Tillman and Ramsey all
demanded of Bucknall that she remove them because they
were an invasion of privacy. Tillman asked to speak to
Tuchman but he was unavailable. When she asked Bucknall
if she was going to be terminated, because she wanted to
know what to do, and where to file charges, Bucknall could
only reply she was not terminating anyone, and she needed
to contact their attorney.
When Banks and Tillman asked Maritas why he had put
their names in a display case like he had, he responded, ‘‘To
show your co-workers what kind of people you are.’’
By letter dated January 24, 1991, Aldrich, on behalf of
Local 1115 made another written demand for the discharge
of Ramsey and Banks because they are not ‘‘members in
good standing.’’ On January 28, 1991, Bucknall asked Banks
to come to her office. Supervisor Lee Barsczewski and
Union Shop Steward Michael Williams were brought in.
Fogel was present. Banks objected to Williams’ presence as
she was not in the Union. Fogel replied, ‘‘That’s the prob-
590 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
lem, you’re not in the Union.’’ He went on to inform her
he had a contract with Local 1115 and he had a certified let-
ter saying he had to terminate her if she did not sign this
paper. Fogel held the paper in one hand and an ink pen in
the other. Fogel described the paper as authorizing dues and
something else (initiation fee?) taken out [of her salary].
Banks asked if she could have time to think about represen-
tation because she didn’t have anybody there with her. Fogel
denied her request, saying she had been there long enough
to know what was going on. He asked if she was going to
sign it, and she said no. He said, ‘‘Okay, punch your card.’’
She then left. Fogel also gave her a copy of the Union’s Jan-
uary 24 letter.
The following day, Banks called in to explain she was so
upset she had failed to punch out but was informed she had
been signed out. Banks came in to pick up her last check,
and was given a pink slip giving ‘‘willful misconduct’’ as
the reason for her firing.
Discussion and Analysis
In determining whether Windsor Castle provided aid and
assistance to Local 1115, thereby tainting whatever card
showing that Union made as a predicate to both Arbitrator
Kramer’s card check and Windsor Castle’s recognition of,
and immediate entry into a bargaining contract and relation-
ship with, 1115, one must examine the totality of the cir-
cumstances occurring at and in close proximity to the time
of recognition. Siro Security Services, 247 NLRB 1266,
1271–1272 (1980); Rainey Security Agency, 274 NLRB 269,
279–280 (1985). If such an analysis shows that the employ-
er’s support for the union exceeds the bounds of ministerial
cooperation and evinces, rather, a pattern of assistance, or
conduct of such a nature as leads employees to reasonably
conclude that the employer favors their selection of the
union, than any subsequent recognition is tainted and may
not be supported by claimed majority support garnered as the
fruit of such unlawful activity. See Famous Casting Corp.,
301 NLRB 404 (1991); D & D Development Co., 282 NLRB
224, 228–229 (1986); Longchamps, Inc., 205 NLRB 1025,
1031 (1973).
Such a pattern of conduct may take many forms. The facts
in the instant record illustrate some of them, the totality of
which lead me to conclude that 1115 was unlawfully assisted
by Windsor Castle from the outset, weeks prior to the card
check, and continued unabated through the time period cov-
ered by the record.
A number of different supervisors admonished employees
to be careful when disclosing their interest in supporting
1199, and, in particular, identified 1115 as either the ‘‘Com-
pany’’ or ‘‘Management’’ Union.
Windsor Castle failed to show a special need to hire the
five individuals at the beginning of October. Among other
things the newspaper ads placed were not primarily for
CNA’s and the pool arrangement in which Windsor Castle
participated in utilizing them was not uncommon in the in-
dustry.
As to the manner of their hire, the facts show that an em-
ployer supervisor and agent, Suarez, initiated contact with
1115 with management’s knowledge and approval to obtain
these additional staff. Most telling, no one representing the
employer with knowledge of the full facts came forward to
describe the details and circumstances of the union contact.
The absence of such information is important in weighing the
legality of its conduct. Siro Security Services, supra at 1272.
Clearly, 1115 saw this contact as an opportunity to orga-
nize and it acted accordingly. It dispatched a paid organizer
and four others whose identity would have been known to
Windsor Castle’s owner and probably its attorney. It paid the
staff organizer, Moore, his salary and the four others moneys
for their services to be performed at the New Haven facility.
Those services were predominantly organizing services.
The staff to receive and process the new arrivals’ applica-
tions and hire were kept in the dark, and, ultimately, special
arrangements had to be made for their employment, with
final approval given by the Nursing Director McSherry after
she had been informed by Executive Director Fogel that
‘‘some people’’ would be reporting for staff positions on that
Monday and who had, in effect, approved their hire in ad-
vance. The hiring process was also so rushed that the normal
process of checking references was completely omitted.
There is certain evidence, some already noted, that super-
visory personnel were aware that 1115, in contrast to 1199,
was a ‘‘management union,’’ i.e., preferred by management,
the installation of which as bargaining agent would be eased,
and, further, that it would be risky, even dangerous, for em-
ployees to make known their opposition to its approval by
talking openly against it.
In addition to evidence of direct employer solicitation of
1115 organizers there is strong evidence that either Windsor
Castle authorized the hire of the five individuals to organize
employees over a short period of time, or that it became
aware early in the week of their employ that they were
spending a good portion of their worktime and that of other
employees in soliciting for 1115 and did nothing to terminate
such conduct. Monfort of Colorado, 256 NLRB 612, 613
(1981).
I subscribe to the former interpretation, based primarily on
the credited testimony of Tillman who overheard Moore refer
by telephone to having completed what owner Tuchman sent
him New Haven to do, namely, obtain a majority of em-
ployee signatures on 1115 designation cards. Such testimony
speaks directly to Windsor Castle’s participation in a scheme
to defraud employees of their rights. It is a significant admis-
sion not only against 1115 but against Windsor Castle that
it conspired with 1115 to deprive employees of their right of
free choice and sought to impose the Respondent Union
upon them under the guise of an ostensibly arm’s-length pro-
cedure of a third party card check.
Tillman’s overhearing of Moore’s conversation led directly
to McSherry’s unlawful interrogation of her about her knowl-
edge of Moore’s and other employees’ union activities.
Fogel’s participation in the fraudulent scheme is high-
lighted by his paging of employee Ana Marie to his office
immediately after she displayed a brief case full of 1115
cards and solicited cards collected by employees Davis and
Slerge. Fogel’s leaving town at this most crucial time and
absenting himself from participation in the card check and
recognition exercise can be explained most cogently as based
upon an understanding of the parties that the organizers had
done their work well and no problem remained to achieving
the objective they both sought, i.e., entry of a bargaining re-
lationship to be imposed upon the Windsor Castle employ-
ees.
591WINDSOR CASTLE HEALTH CARE FACILITIES
12 Surely, if any disclosure had been made, Kramer would have
commented upon it and felt obliged to determine their inclusion or
exclusion from the unit.
13 The transcript is ordered corrected at p. 678 to read that her
name, mispelled as Coyler, is on the list.
What has been said previously about the lack of testimony
about the initial employer-union contact, is equally applicable
to the absence of any information forthcoming from either
participant about the details and circumstances of the card
check. It is evident that union officials were aware early in
the morning that a card count was planned for later in the
day, and that the services of the five organizers would no
longer be required at the facility. The manner in which the
five first quit the facility, the commotion and disruption they
caused among employees and in-patient services then and
when they soon returned to be reinstated without incident
contrary employer practice and policy, and finally manufac-
tured an episode to procure their early termination with full
pay for the day, among other special benefits, see Prestige
Bedding Co., 211 NLRB 690, 691 (1974), only serves to but-
tress and enhance the conclusions I have previously reached
regarding the sham nature of the organizers’ employment, the
Employer’s knowledge of same, and its acquiescence in the
union agents’ conduct, all in aiding and abetting the Union
in achieving its tainted status as exclusive bargaining agent.
The facts and circumstances surrounding the Employer’s
offer of return to employment of the five, in particular, mani-
fests a belated and unsuccessful effort to retain the employee
status for purposes of the card count of five card signers
whom both parties knew had hours previously been fired and
who failed to disclose to arbitrator Kramer their current sta-
tus.12 In failing to disclose such information, indeed, permit-
ting the participation at the count of two of them, Michel and
Moore, the parties are at least guilty of misleading Kramer
and permitting him to conclude his function without being in
possession of crucial facts which might have, and probably
would have, led him to conclude that a majority of signers
among employees were not submitted to him for his count.
Of course, this factual failure to disclose was the least of
what the parties withheld from Kramer, as I have recounted
above.
A final failure to produce facts by Respondent, which is
crucial to their claim of an uncoerced majority showing, con-
cerns the documents, records, and cards relied on by Kramer
in endorsing 1115’s majority showing. As I previously noted,
the record is lacking as to the precise cards and list of em-
ployees which were submitted to Kramer for his inspection.
Both Respondents’ apparent efforts to hide behind Kramer’s
award is unavailing, even if no conspiracy or aid and assist-
ance has been proven, since the award itself is inconclusive
if the alleged majority showing is based on the inclusion of
the cards of nonemployees or either includes or excludes em-
ployees improperly in determining the scope or composition
of the unit. While General Counsel clearly has the burden of
establishing the unlawful recognition of a minority union, see
Ladies Garment Workers ILGWU, 366 U.S. 731 (1961), I
conclude that it has met that burden in this case.
I have previously drawn the reasonable inference that the
testimony of Linda Urbanski would not have been favorable
to Respondent’ claims of a majority showing. I have also
concluded that Kramer very likely counted the cards of the
five paid organizers. I also now conclude that while under
Board law the votes of employees who sever their employ-
ment relationship on the day of a representation election are
normally deemed valid, see e.g., Choc-ola Bottlers, Inc., 192
NLRB 1247 (1971), the circumstances here do not warrant
the same result, primarily because the employer who is
granting voluntary recognition is committing a fraud by ac-
cepting a result based upon the number of unit employees
which he knows to be false. See Tennessee Shell Co., 212
NLRB 193, 200 (1974). In this case, furthermore, as I have
noted, the union participant had full knowledge as well, and
both parties failed to inform the third party on whom they
relied to legitimize the entry of their relationship. Finally,
and apart from the foregoing, it is evident that the five indi-
viduals hired on October 2, had no expectancy of future em-
ployment as they took the jobs solely to organize. As I con-
clude the five were temporary employees in any event, their
cards should not have been counted by Arbitrator Kramer.
See Dee Knitting Mills, Inc., 214 NLRB 1041 (1974).
Without the cards of the 5 paid organizers, Kramer was
presented with only 48 other cards bearing signatures. He
concluded that he had been submitted 53 valid signatures in
a unit consisting of 102 employees. At trial, Local 1115 pro-
duced 60 cards which it had in its possession. By
elimininating 7 of these cards, 4, because those of Bruce
Baines, Kevin Barnes, David Bradley, and Ana Maria Pelaez
contain printed names but not signatures on the signature
line, 2 others because they are blank on the signature line,
and 1 because signed by a self-described security officer,
Sheryl Cuyler, we are left with 53, the same number Kramer
lists as the tally of cards in his award.
Cuyler’s name appears on a stipulated list of 107 unit em-
ployees of alleged unit employees employed for the payroll
period ending October 7, the day following the card count.13
The parties stipulated her name should be removed from the
unit, thus leaving 106 names. This figure, of course, differs
from Kramer’s recital of 102 eligibles in the unit and the dis-
parity remains unexplained on the record. In any event, even
counting the cards of the five paid organizers, Local 1115
has failed to achieve a majority showing on the date of the
card count and recognition.
Furthermore, certain other employees, including Thelma
Riggins, a CNA hired for regular part work of 24 hours per
week on September 28, and not terminated until December
11 for unreliability, and Marion Sajloski, previously injured
and out on Worker’s Compensation at the time of the count,
were not included by the Respondents on the eligible list of
unit employees, but should have been. See J. P. Stevens &
Co., 247 NLRB 420, 482 (1980), as to the unit inclusion for
purpose of representation election of injured employees who
have not resigned or been terminated. Sajloski actually re-
turned to employment on November 6 and continued to work
until March 19, 1990, when she was injured again and back
on workers’ compensation to the close of hearing.
Including these 2 employees in the bargaining unit further
reduces 1115’s card showing, assuming it to have been non-
tainted, to a total of 53 out of 108; 48 out of 108 when the
cards of the 5 organizers are excluded.
Aside from the foregoing, it is apparent that the absence
of any accurate and detailed records which Kramer reviewed,
particularly since Kramer’s figures vary significantly from
592 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the Respondent’s unit claims as of the day of the count, fur-
ther destroy any reliability of the count itself and buttresses
further the conclusion that the parties’ rush to recognition
constitutes one element among the totality of surrounding
facts establishing the unlawful grant of assistance by Wind-
sor Castle to Local 1115.
Local 1115’s own independent conduct contributed to the
tainting of the cards and the receipt by it of unlawful aid and
assistance.
On a number of occasions, as borne out by the record,
Moore misrepresented to known 1199 adherents among em-
ployees, Tillman and Davis in particular, that 1119 couldn’t
help them because that union was in debt for 40 million dol-
lars. Moore then compounded his misrepresentation by hold-
ing out himself and Local 1115 as 1199’s approved suc-
cessor, when he declared, e.g., to Davis ‘‘these are the cards
your supposed to sign. They sent 1115 instead.’’
The confusion engendered among employees by those mis-
representations and the resulting unreliability of the cards
signed by employees subject to such solicitations, coupled
with the speed with which the Employer immediately granted
recognition following the 5-day blitzkrieg and quickly there-
after concluded memorandum and complete agreements with
little, outward evidence of negotiations, at a time when 1199
was known to be leafletting for employee support, also help
establish the unlawful nature of the entry of the parties’ rela-
tionship. Franklin Convalescent Center, 223 NLRB 1298,
1309 (1976); Monfort of Colorado, supra at 613.
In their rush to execute a final collective-bargaining agree-
ment the parties agreed to a unit description at variance with
the one described in Kramer’s award, as amended. By in-
cluding all employees and listing the named exclusions, the
unit described in the contract is broad enough to include
cooks. While both Respondents dispute that they ever in-
tended to include cooks, an argument can be made that the
unit as precisely described includes them. If cooks are in-
cluded in the unit to which the parties agreed on the face of
the agreement, 1115’s minority status is further enhanced.
Certain facts and circumstances occurring after the execu-
tion of the collective-bargaining agreement further manifest
a pattern of assistance and further support the conclusion that
the grant of recognition on October 6 was unlawful.
Respondent offered no evidence disputing Davis’ testi-
mony that McSherry terminated Supervisor Anna Maxwell
for showing favoritism to Davis and for not reporting on
Davis’ activities on behalf of Local 1199. Furthermore, at the
‘‘emergency’’ meeting of employees called on October 26,
Fogel described the parties’ union security clause as a
‘‘closed shop’’ requiring all new employees to ‘‘join the
Union . . . or termination may result.’’ The subsequent ac-
tions of the parties confirm this unlawful interpretation of the
contract clause.
Davis’ unrebutted account of Fogel’s’ close questioning of
her intent to honor the subpoena requiring her to testify at
the representation proceeding establishes a threat of unspec-
ified reprisal for exercising rights protected under the Act in
violation of Section 8(a)(1). Brookwood Furniture, 258
NLRB 208, 210 (1981). Likewise, the unrebutted remarks
Dave attributed to Urbanski in November that employees had
lost a 50-cent-an-hour raise on completing probation because
of unionization when that benefit had been previously due
them under the Employer’s practice and policies, constitutes
a violation of Section 8(a)(1). Urbanki’s reply to Davis’ in-
quiry as to the failure to provide the raise was, ‘‘Well, that’s
what happens when you get unions.’’
On November 10, McSherry and Urbanski both committed
violations of Section 8(a)(1) and Urbanski violated that sec-
tion again on November 12 when they each instructed Hally
not to honor her subpoena, Travelways, Inc., 267 NLRB
1332, 1336 (1983).
Respondent Windsor Castle’s defense that Hally was a
managerial employee is farfetched. In no respect did Hally
assist in formulating policy regarding social work services
supplied to patients nor did she effectuate management poli-
cies by ‘‘running’’ a single person department devoted to
such services. See NLRB v. Bell Aerospace Co., 416 U.S.
267 (1974). She was the sole social worker on staff; calling
her ‘‘Director of Social Services’’ did not enlarge her re-
sponsibilities in any real respect, none of which were of a
significant discretionary nature. Neither was Hally privy to
privileged labor relations matters by merely periodically at-
tending department head meetings at which union negotia-
tions were broached, and, thus, she could not be deemed
thereby a confidential employee.
Fogel’s conduct in interrogating Hally regarding her sub-
poena and proposed lines of questioning at the representation
hearing exceeded permissive bounds of interrogation under
the Act and was coercive, in spite of Fogel’s uncalled for ad-
vise to Hally to tell the truth. See Nestle Corp., 248 NLRB
732 fn. 3, 740 (1980). By later expressing displeasure with
her testimony and providing her with a revised job descrip-
tion as well as an amended copy of the minutes of the Octo-
ber 26 department head meeting Fogel intensified the coer-
cive pressure on Hally to cease her protected conduct and
brought home to at least one employee Windsor Castle’s vit-
riolic opposition to District 1199 and unlawful support for
Local 1115.
On February 8 Nelson Tuchman unlawfully threatened as-
sembled employees that if they struck in support of 1199’s
10-day strike notice, they would be fired. Tuchman misrepre-
sented the law as requiring a 30-day notice to strike. In this
situation Section 8(g) of the Act requires only a union to
provide a 10-day notice prior to a strike. See Hospital Em-
ployees District 1199, 232 NLRB 443 (1977). Further,
Tuchman’s reliance on 1115’s unlawful status as exclusive
bargaining representative as precluding 1199’s adherents
from exercising their protected conduct to threaten to strike
under the Act and threatening them with discharge if they
did so, is another aspect of Tuchman’s unlawful threat.
The conduct engaged in by 1115 agents Maritas and others
the previous day, in threatening bodily harm to, 1199 adher-
ents for exercising this right under the Act, to the extent of
acting with contempt toward supervisory personnel who re-
ceived no recourse or protection from McSherry, is part and
parcel of the parties’ conspiracy even if not separately al-
leged as an independent violation. These parallel acts by both
Respondents show a scheme and willingness to intimidate
employees and broach no opposition to their unlawful design.
In the spring and summer of 1990, employees were be-
sieged by union and management to sign dues-checkoff au-
thorizations and become members of 1115. Bucknall’s May
24 letter to employees requiring duescheckoffs and union
membership as the price of their continued employment vio-
lated Section 8(a)(1) and (2) of the Act. Siro Security Serv-
593WINDSOR CASTLE HEALTH CARE FACILITIES
ice, supra at 1273; SMI of Worcester, Inc., 271 NLRB 1508,
1524 (1984). Bucknall’s attempt to correct the erroneous let-
ter the following day was inadequate and unavailing. It failed
to describe the unlawful requirements of the first and reason-
ably led employees to believe that Windsor Castle had dele-
gated responsibility to 1115 to enforce the union-security
clause but not necessarily to change its interpretation.
In September 1990, McSherry went so far as to call recal-
citrant employees to her office to listen to Maritas who ‘‘as
the boss’’ was ‘‘handling things’’ in a major effort to get
employees to ‘‘become and remain members in good stand-
ing’’ as called for in both employer and union letters to em-
ployees.
The excessive final pressure applied to Banks by Maritas
to sign the dues-checkoff card and to comply with the con-
tractual ‘‘closed shop’’ clause, followed by Fogel’s direction
to Banks to sign the checkoff forms and join the Union, or
be fired, establish a series of violations of the Act, running
from 1115’s unlawful demands, to Windsor Castle’s acces-
sion to the demands, which constitute unlawful conduct by
both regardless of the validity or invalidity of 1115’s status
as bargaining representative. Siro’s Security Service, supra at
1273; Rainey Security Agency, 274 NLRB 269, 281 (1985);
Gloria’s Manor Home for Adults, 225 NLRB 1133, 1144
(1976).
CONCLUSIONS OF LAW
1. Respondent Employer, Windsor Castle Health Care Fa-
cilities, Inc. (formerly known as Parkview Nursing Home,
Inc.), is an employer engaged in commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act.
2. Respondent Union, 1115 Nursing Home and Hospital
Employees Union, a Division of 1115 Joint Board and New
England Health Care Employees Union, District 1199, SEIU,
AFL–CIO, are each labor organizations within the meaning
of Section 2(5) of the Act.
3. By encouraging and supporting agents of Respondent
Local 1115 in that Union’s efforts to solicit membership in
Local 1115 and permitting Respondent Local 1115 to utilize
the New Haven facility and Respondent Employer’s equip-
ment to solicit membership in Respondent Local 1115, and
by recognizing and granting exclusive collective-bargaining
rights to Local 1115 and entering into and maintaining and
enforcing a collective-bargaining agreement covering rates of
pay, wages, hours of employment, and other terms and con-
ditions of employment, including a union-security provision,
of its employees in the unit hereinafter described when said
Union did not represent an uncoerced majority of the em-
ployees in the agreed-to unit of all employees, excluding li-
censed practical nurses, registered nurses, office and clerical
employees, supervisors, watchmen and guards, Respondent
Employer has rendered and is rendering unlawful assistance
and support to a labor organization, in violation of Section
8(a)(1) and (2) of the Act.
4. By recognizing Respondent Local 1115 and by entering
into, and thereafter maintaining and enforcing the collective-
bargaining agreement under the circumstances as described
in paragraph 3, above, Respondent Employer has discrimi-
nated, and is discriminating, in regard to the hire or tenure
or terms or conditions of employment of its employees,
thereby encouraging membership in a labor organization in
violation of Section 8(a)(1) and (3) of the Act.
5. By discharging employee Harriet Banks because Re-
spondent Local 1115 requested her discharge for refusing to
pay union dues pursuant to the union-security provision de-
scribed in paragraph 3, above, when Banks was under no ob-
ligation to do so, and because Banks refused to execute a
dues-checkoff authorization on behalf of Local 1115 and re-
fused to become and remain a member of Local 1115, Re-
spondent Employer has unlawfully encouraged membership
in a labor organization in violation of Section 8(a)(1) and (3)
of the Act.
6. By interrogating its employees concerning their union
membership, activities, and sympathies and those of their fel-
low employees, and the nature and substance of testimony to
be given to the National Labor Relations Board, by threat-
ening its employees with unspecified reprisals or discharge if
they appeared and gave testimony at the National Labor Re-
lations Board or engaged in activities on behalf of District
1199, and by threatening its employees with discharge if they
refused to become a member of, and execute a dues-checkoff
card on behalf of, Respondent Local 1115, Respondent Em-
ployer has interfered with, restrained, and coerced its em-
ployees in the exercise of their Section 7 rights in violation
of Section 8(a)(1) of the Act.
7. By accepting exclusive recognition as the representative
of Respondent Employer’s employees in the agreed-to unit at
a time when it did not represent an uncoerced majority of
said employees; by verbal announcement and written com-
munication, threatening employees with discharge if they re-
fused to execute a dues-checkoff authorization; by informing
employees that Respondent Employer was a closed shop; and
by receiving aid, assistance, and support in the form of mon-
eys which Respondent Employer deducted from the wages of
the employees in the unit and remitted to it, Respondent
Local 1115 has restrained and coerced, and is restraining and
coercing, employees in the exercise of the rights guaranteed
in Section 7 of the Act, in violation of Section 8(b)(1)(A)
of the Act.
8. By requesting that Respondent Employer discharge cer-
tain of its employees in the unit because they refused to exe-
cute a dues-checkoff authorization; and by requesting that
Respondent Employer discharge employees Rochelle Ramsey
and Harriet Banks because they refused to pay union dues
when they were under no obligation to do so and because
they refused to become and remain members of Local 1115,
Respondent Local 1115 attempted to cause, and did cause, an
employer to discriminate against its employees in violation
of Section 8(a)(3) of the Act, thereby violating Section
8(b)(2) of the Act.
9. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
10. Respondents did not otherwise engage in violations of
the Act.
THE REMEDY
Having found that both Respondents engaged in certain
unfair labor practices, in violation of Section 8(a)(1), (2), and
(3) and Section 8(b)(1)(A) and (2), I shall recommend that
they cease and desist therefrom and that they take the fol-
lowing affirmative actions which are necessary to effectuate
the policies of the Act.
594 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
14 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
I have found that the Respondent Employer unlawfully as-
sisted Respondent Union to organize its employees and rec-
ognized Respondent Union on October 6, 1989, as the exclu-
sive collective-bargaining representative of certain of its em-
ployees in an agreed-to unit and that Respondent Union ac-
cepted such recognition as the exclusive representative of
said employees at a time when Respondent Union had not
been designated or selected as the collective-bargaining rep-
resentative of an uncoerced majority of said employees. By
such conduct, Respondent Employer has interfered with, re-
strained, and coerced its employees in the exercise of their
right freely to select their own bargaining representative, and
has accorded unlawful assistance and support to Respondent
Union and Respondent Union has restrained and coerced said
employees in the exercise of those same rights. In order to
dissipate the effect of these unfair labor practices, Respond-
ent Employer shall withdraw and withhold recognition from
Respondent Union as the exclusive representative of its em-
ployees in the aforementioned unit and Respondent Union
shall cease maintaining or giving effect to its current rec-
ognition by Respondent Employer, or any renewal or exten-
sion thereof, until such time as Respondent Union shall have
been certified by the Board as the exclusive representative of
the employees in question. Both Respondents shall also cease
maintaining or giving effect to any collective-bargaining
agreement between them, or any successor thereto, con-
cerning the employees in the described unit, unless and until
such time as Respondent Union shall have been certified by
the Board, provided, however, nothing in the remedial order
shall require Respondent Employer to withdraw or eliminate
any wage increase or other benefit, terms, and conditions of
employment which may have been established pursuant to
any such agreement.
By virtue of the fact that the Respondents have given ef-
fect to an invalid union-security provision requiring payment
of union dues as a condition of employment or continued
employment and that the clause has also improperly author-
ized checkoff of union dues from the pay of unit employees,
I will also recommend that Respondent Employer and Re-
spondent Union, jointly and severally, be required to reim-
burse all Respondent Employers employees for fees and
moneys deducted from their pay in requiring them to execute
union application and checkoff authorization cards on behalf
of Respondent Union, with interest added to such reimburse-
ments in the manner prescribed in Florida Steel Corp., 231
NLRB 651 (1977), and New Horizons for the Retarded, 283
NLRB 1173 (1987).
Having found that Respondent Employer discriminatorily
discharged Harriet Banks on or about January 28, 1991, in
violation of Section 8(a)(3) and (1) of the Act, and that Re-
spondent Union caused such discrimination, thereby violating
Section 8(b)(2) and (1)(A) of the Act, I shall also rec-
ommend that Respondent Employer offer Harriet Banks im-
mediate and full reinstatement to her former position or, if
that job no longer exists, to a substantially equivalent posi-
tion, without prejudice to her seniority or other rights and
privileges, and, jointly and severally with Respondent Union,
make her whole for any losses she may have suffered as a
result of the discrimination against her, with interest also to
be computed in the manner prescribed in Florida Steel
Corp., 231 NLRB 651 (1977), and New Horizons for the Re-
tarded, 283 NLRB 1173 (1987).
The Respondents’ violation of law in this case are of such
a pervasive nature which go to the very heart of the Act, I
shall also recommend broad cease and desist language in
their required undertakings to cease and desist from in any
manner infringing on the rights guaranteed to the Respondent
Employer’s employees by Section 7 of the Act. Franklin
Convalescent Center, supra at 1298 fn. 2; NLRB v Entwistle
Mfg. Co., 120 F.2d 532, 536 (4th Cir. 1941).
On these findings of fact and conclusions of law and on
the entire record in this proceeding, I issue the following rec-
ommended
ORDER14
A. The Respondent, Windsor Castle Health Care Facilities,
Inc. (formerly known as Parkview Nursing Home, Inc.), its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Assisting or contributing support to Respondent Local
1115 by helping in the organization of its employees or by
recognizing and granting exclusive collective-bargaining
rights to Local 1115 unless and until Local 1115 is certified
by the Board as the collective-bargaining representative of
said employees pursuant to Section 9(c) of the Act.
(b) Maintaining or giving any force or effect to the collec-
tive-bargaining agreement between Respondent Employer
and Respondent Local 1115 dated October 16, 1989, cov-
ering rates of pay, wages, hours of employment, and other
terms and conditions of employment, including a union-secu-
rity provision, of its employees in an agreed to unit at its
New Haven facility, or any modification or current extension
thereof, unless and until Respondent Local 1115 is certified
by the Board as the collective-bargaining representative of
said employees pursuant to Section 9(c) of the Act; provided,
however, that nothing in this order shall require the with-
drawal or elimination of any wage increase or other benefits,
terms or conditions of employment which may have been es-
tablished pursuant to the performance of said contract.
(b) Discharging or in any other manner discriminating
against its employees in regard to their hire or tenure of em-
ployment or any terms or conditions of employment in order
to encourage membership in Respondent Local 1115 or any
other labor organization or in order to discourage member-
ship in District 1199 or any other labor organization.
(c) Interrogating its employees concerning their union
membership, activities and sympathies, and the nature and
substance of testimony to be given to the National Labor Re-
lations Board, threatening its employees with unspecified re-
prisals or discharge if they appeared it gave testimony at the
Board or engaged in activities on behalf of District 1199 or
if they refused to become a member of, and execute a dues-
off check card on behalf of, Respondent Local 1115.
(d) In any other manner interfering with, restraining, or co-
ercing its employees in the exercise of the right to self-orga-
nization, to form labor organizations, to join or assist District
1199 or any labor organization, to bargain collectively
through representatives of their own choosing, and to engage
595WINDSOR CASTLE HEALTH CARE FACILITIES
15 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
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.’’
in other concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection as guaranteed in
Section 7 of the Act, or to refrain from any and all such ac-
tivities, except to the extent that such rights may be affected
by an agreement requiring membership in a labor organiza-
tion as a condition of employment as authorized in Section
8(a)(3) of the Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Withdraw and withhold all recognition from Respond-
ent Local 1115 as the collective-bargaining representative of
its employees employed at its New Haven, Connecticut facil-
ity, unless and until said labor organization has been duly
certified by the National Labor Relations Board as the exclu-
sive representative of such employees.
(b) Jointly and severally, with Respondent Union reim-
burse its past and present employees, for all dues and other
moneys withheld from their pay pursuant to the collective-
bargaining agreement executed on October 16, 1989, by Re-
spondents, or any successor agreement thereto, plus interest,
in the manner set forth herein in the remedy section.
(c) Offer Harriet Banks immediate and full reinstatement
to her former position or, if that job no longer exists, to a
substantially equivalent position, without prejudice to her se-
niority or other rights and privileges, and, jointly and sever-
ally, with Respondent Local 1115, make her whole for any
loss of earnings she may have suffered as a result of her dis-
charge, in the manner set forth herein in the remedy section.
(d) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
an reports, and all other records necessary to analyze the
amount of reimbursement of dues, other moneys, and back-
pay due under the terms of this Order.
(e) Post at its facility in New Haven, Connecticut, copies
of the attached notice marked ‘‘Appendix A.’’15 Copies of
said notice, on forms provided by the Regional Director for
Region 34, after being signed by the Respondent Employer’s
representative, shall be posted by Respondent Employer im-
mediately on receipt and maintained for 60 consecutive days
in conspicuous places including all places where notices to
its employees are customarily posted. Reasonable steps shall
be taken by Respondent Employer to ensure that said notices
are not altered, defaced, or covered by any other material.
(f) Post at the same places and under the same conditions
set forth in (e) above, as they are forwarded by the Regional
Director, copies of Respondent Local 1115’s notice marked
‘‘Appendix B.’’
(g) Mail signed copies of the attached notice marked Ap-
pendix A for posting at Respondent Local 1115’s offices and
meeting halls.
(h) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent Em-
ployer has taken to comply.
B. Respondent, 1115 Nursing Home and Hospital Employ-
ees Union, a Division of 1115 Joint Board, its officers,
agents, and representatives, shall
1. Cease and desist from
(a) Accepting exclusive recognition as the representative
of Respondent Employer’s employees at the facility located
in New Haven, Connecticut, or entering into a collective-bar-
gaining with Respondent Employer as the exclusive rep-
resentative of those employees at a time when Respondent
Union does not represent an uncoerced majority of employ-
ees in an appropriate bargaining unit.
(b) Acting as the exclusive collective-bargaining represent-
ative of the employees in an agreed-to unit employed by Re-
spondent Employer at its New Haven, Connecticut facility,
unless and until Respondent Union has been certified by the
National Labor Relations Board as the exclusive bargaining
representative of such employees in an appropriate bar-
gaining unit.
(c) Giving effect to the October 6, 1989 recognition agree-
ment, or the October 16, 1989 collective-bargaining agree-
ment executed by Respondents, and any modifications of
current extensions thereof.
(d) Causing or attempting to cause Respondent Employer
or any other employer to discharge or in any other manner
discriminate against its employees in regard to their hire or
tenure of employment or any term of condition of employ-
ment in order to encourage membership in Respondent Local
1115 or any other labor organization or in order to discour-
age membership in District 1199 or any other labor organiza-
tion.
(e) Restraining or coercing employees by threatening them
with discharge if they refused to execute a dues-checkoff au-
thorization, by informing employees that the Respondent Em-
ployer was a closed shop, and by falsely telling employees
that they are required to join Respondent Local 1115 as a
condition of continued employment.
(f) In any other manner restraining or coercing the Re-
spondent Employer’s employees in the exercise of the rights
guaranteed them in Section 7 of the Act, except to the extent
that such rights may be affected by an agreement requiring
membership in a labor organization as a condition of em-
ployment as authorized by Section 8(a)(3) of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Jointly and severally with Respondent Employer reim-
burse its employees, for all dues and fees withheld from their
pay pursuant to the collective-bargaining agreement executed
on October 16, 1989, by Respondents covering Respondents
Employer’s employees in an agreed-to unit at its New
Haven, Connecticut facility, or any modification or current
extension thereof, plus interest, in the manner set forth in the
the remedy section.
(b) Jointly and severally with Respondent Employer, make
Harriet Banks whole for any loss of earning she may have
suffered as a result of her discharge, plus interest, in the
manner set forth herein in the the remedy section.
(c) Notify Harriet Banks and Respondent Employer in
writing that it has no objection to the employment of Harriet
Banks and request her reinstatement.
596 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
16 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
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.’’
(d) Post at its offices and meeting halls copies of the at-
tached notice marked ‘‘Appendix B.’’16 Copies of said notice
on forms provided by the Regional Director for Region 34,
after being signed by Respondent’s Local 1115’s representa-
tive shall be posted by Respondent Local 1115 immediately
on receipt and be maintained for 60 consecutive days in con-
spicuous places, including all places where notices to mem-
bers are customarily posted. Reasonable steps shall be taken
by Respondent Local 1115 to ensure that said notices are not
altered, defaced, or covered by any other material.
(e) Post at the same places and under the same conditions
as set forth in (b) above, as they are forwarded by the Re-
gional Director, copies of Respondent Employer’s notice
marked ‘‘Appendix A.’’
(f) Mail signed copies of the attached notice marked ‘‘Ap-
pendix B’’ to the Regional Director for posting at Respond-
ent Employer’s New Haven, Connecticut facility.
(g) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
All other allegations of the consolidated complaint not dis-
posed of by the settlement agreement and not specifically
found to constitute unfair labor practices in violation of the
Act are hereby dismissed.
APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT assist or contribute support to 1115 Nursing
Home and Hospital Employees Union, a Division of 1115
Joint Board, or any other labor organization, by assisting it
to organize our employees or by recognizing it as the exclu-
sive collective-bargaining representative of our employees
unless and until it has been certified as such representative
by the National Labor Relations Board.
WE WILL NOT maintain or give effect to our contract with
Local 1115 executed on October 16, 1989, or any modifica-
tion, extension, or renewal thereof, or any other contract,
agreement, or understanding entered into with such labor or-
ganization, or any successor thereto, relating to rates of pay,
wages, hours of employment and other terms and conditions
of employment, including a union-security provision, unless
and until it has been certified as representative of our em-
ployees by the the Board; provided, however that nothing
herein shall require the withdrawal or elimination of any
wage increase or other benefits, terms or conditions of em-
ployment which may have been established pursuant to the
performance of said contract.
WE WILL NOT threaten our employees with unspecified re-
prisals or discharge, by telling them that they must join
Local 1115 or any other labor organization as a condition of
employment, or if they gave testimony at the Board, engaged
in activities on behalf of New England Health Care Employ-
ees Union, District 1199, SEIU, AFL–CIO, or refused to be-
come a member of Local 1115, or execute its dues-checkoff
card and WE WILL NOT interrogate our employees concerning
their union membership, activities and desires, or the nature
and substance of testimony to be given to the Board.
WE WILL NOT encourage membership in Local 1115, or
any other labor organization, or discourage membership in,
or activities on behalf of, District 1199, or any other labor
organization, by discharging or in any other manner discrimi-
nating against our employees in regard to their hire or tenure
of employment or any terms or conditions of employment.
WE WILL NOT in any other manner interfere with, restrain,
or coerce employees in the exercise of their rights to self-
organization, to form labor organizations to join or assist
District 1199, or any other labor organization, to bargain col-
lectively through representatives of their own choosing, to
engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain
from engaging in any or all such activities, except to the ex-
tent that such rights may be affected by an agreement requir-
ing membership in a labor organization as a condition of em-
ployment as authorized in Section 8(a)(3) of the Act, as
modified by the Labor Management Reporting and Disclo-
sure Act of 1959.
WE WILL withdraw and withhold all recognition from
Local 1115 as the collective-bargaining representative of our
employees.
WE WILL, jointly and severally with Local 1115, reimburse
our past and present employees for all dues and other mon-
eys withheld from their pay pursuant to the collective-bar-
gaining agreement we executed on October 16, 1989, with
Local 1115, or any successor agreement, plus interest.
WE WILL offer Harriet Banks immediate and full reinstate-
ment to her former position, or if that job no longer exists,
to a substantial equivalent position, without prejudice to her
seniority or other rights and privileges, and jointly and sever-
ally with Local 1115, make her whole for any loss of earn-
ings she may have suffered because of her discharge, plus
interest.
WINDSOR CASTLE HEALTH CARE FACILITIES,
INC. (FORMERLY KNOWN AS PARKVIEW NURS-
ING HOME, INC.)