Woodcliff Lake Manor Nursing Home, Inc.

National Labor Relations Board - Board Decisions

Sep 26, 1985

276 N.L.R.B. 752 (N.L.R.B. 1985)

752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Woodcliff Lake Manor Nursing Home, Inc. and
1115 Nursing Home and Hospital Employees
Union, a Division of 1115 Joint Board and
Local 6, International Federation of Health
Professionsals , International Longshoremen's
Association , AFL-CIO, Party in Interest
Local 6 , International Federation of Health Profes-
sionals, International Longshoremen 's Associa-
tion, AFL-CIO and 1115 Nursing Home and
Hospital Employees Union , a Division of 1115
Joint Board and Woodcliff Lake Manor Nurs-
ing Home, Inc., Party in Interest . Cases 22-
CA-11676 and 22-CB-4718
26 September 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 24 July 1984 Administrative Law Judge
James F. Morton issued the attached decision. The
General Counsel and the Charging Party each filed
exceptions and a supporting brief.
The National Labor. Relations Board has delegat-
ed its authority in' this proceeding to a three-
member panel.
The Board has considered the decision' and the
record in light of the exceptions and briefs and has
decided to affirm the-judge's rulings, findings, and
conclusions and to adopt the recommended Order
as modified, as further explained below.
1. We adopt the judge's conclusion that the Re-
spondent Employer (Woodcliff) violated Section
8(a)(1) of the Act by promulgating and maintaining
the no-solicitation rule set out in the 16 March
19821 contract between Woodcliff and the Re-
spondent Union (Local 6). We also adopt the
judge's conclusion that Local 6, by its representa-
tive, Steve Jarema, restrained and coerced employ-
ees in violation of Section 8(b)(1)(A) of the Act by
advising them that they could be discharged for re-
fusing to sign dues-checkoff forms. There are no
exceptions on these issues.
2. The remainder of the consolidated complaint
raises issues in connection with -the allegation that
Woodcliff extended recognition to Local 6 as the
exclusive bargaining representative of a unit of its
service and maintenance employees at a time when
Local 6 did not represent a majority of those em-
ployees. The consolidated complaint alleges further
that the Respondents thereafter entered into a col-
lective-bargaining agreement , which contained
union-security provisions, despite Local 6's failure
to achieve majority status. Through these actions,
Woodcliff is alleged to have violated Section
' All subsequent dates refer to the year 1982
8(a)(1), (2), and (3) of the Act, and Local 6 is al-
leged to have violated Section 8(b)(1)(A) and (2) of
the Act. .
The judge found that the General Counsel failed
to prove either by circumstantial or direct evidence
that a majority of employees did not support Local
6 on 12 March, the date of recognition. Conse-
quently, he recommended dismissing the complaint
allegations dependent upon such proof. Although
we agree with the judge about .the insufficiency of
circumstantial evidence on the.question of majority
status, an ambiguity in the direct evidence on this
point precludes affirming his findings and conclu-
sions or adopting his recommendation to dismiss.
Instead, we shall remand this proceeding to the
judge for determination of the unit eligibility of
two employees, Marie Martin and. Estane Hercule.
The General Counsel presented 37 witnesses em-
ployed by Woodcliff as service and maintenance
employees on 12 March. Thirty-five witnesses testi-
fied that they never signed authorization cards for
Local 6 before 12 March. The judge found that 28
of these witnesses were in the contractual unit as of
that date.2 .
Woodcliff's payroll on 12 March contained 91
service and maintenance employees. The contract
entered into by the Respondents on 16 March lim-
ited the bargaining unit to those nonsupervisory
service and maintenance employees who worked
more than 20 hours per week. From the payroll
records which he received into evidence as Gener-
al Counsel's Exhibit 12, the judge noted that 57
service and maintenance employees satisfied the
contractual requirement for membership in the
unit. Employees Martin and Hercule were among
the 57. Since only 28 of these employees denied
signing authorization cards for Local 6, the judge
found that the General Counsel had not demon-
strated that less than a majority of'the unit employ-
ees approved of Local 6 as their bargaining repre-
sentative.
In exceptions to the Board, the General Counsel
argued that the correct total of unit employees as
of 12 March was 55, not 57 as found by the judge.
The General Counsel referred to the testimony of
Woodcliffs administrator, Emily Howell, about the
departmental code numbers of bargaining unit em-
ployees. The departmental code numbers listed by
Howell as within the bargaining unit were: 130,
135, 140,- 150, 155, 160, and 165. As the General
Counsel observed, however, Exhibit 12 identifies
Hercule and Martin as being in department 157, a
2 We affirm the judge's conclusion that the remaining seven employees
who denied having signed authorization cards were not then in the con-
tractual bargaining unit
276 NLRB No. 84
WOODCLIFF LAKE MANOR NURSING HOME 753
departmental code number not mentioned by
Howell. The General Counsel contended that these
2 employees were not in the bargaining unit, and
that the 28 unit witnesses who denied signing cards
for Local 6 comprised a majority of the resulting
55 unit employees.
We are unable to determine from the brief and
conflicting evidence whether the two employees in
department 157 were properly in the bargaining
unit on 12 March. We shall therefore sever from
the instant proceeding the portions of the com-
plaint which turn on the General Counsel's proof
of Local 6's nonmajority status at the time of its
recognition by Woodcliff, and we shall remand
these portions to the judge for the limited purpose
of resolving the determinative unit status of em-
ployees Hercule and Martin.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that Respond-
-ent Woodcliff Lake Manor Nursing Home, Inc.,
Woodcliff , Lake, New Jersey, its officers, agents,
successors , and assigns , and Respondent Local 6,
International Federation of Health Professionals,
International Longshoremen's Association, AFL-
CIO, its officers, agents, and representatives, shall
take the action set forth in the Order.
IT IS FURTHER ORDERED that the portions of the
consolidated complaint which allege that Respond-
ent Woodcliff violated Section 8(a)(1), (2), and (3)
of the Act by recognizing Respondent Local 6 as
the bargaining agent for certain of its employees
and by executing a contract, which contained
union-security provisions, covering those employ-
ees, and that Respondent Local 6 violated -Section
8(b)(1)(A) and (2) of the Act by accepting recogni-
tion and by executing the above contract are sev-
ered and remanded to Administrative Law Judge
James F. Morton 'for the purpose of determining
whether employees Marie Martin and Estane Her-
cule were in the bargaining unit on 12 March. The
General' Counsel and the Charging Party shall be
permitted to present testimony and other evidence
limited to' the unit status of the above employees.
The Respondents shall be permitted to cross-exam-
ine any of the witnesses presented by the General
Counsel or the Charging Party pursuant' to this
remand, and to offer such rebuttal evidence as is
relevant. The administrative law judge shall pre-
pare and issue thereafter a supplemental decision
setting forth, where required, a resolution of the
credibility of any witnesses who testify in the sup-
plemental proceedings ordered herein , and contain-
ing findings of fact , conclusions of law , and a rec-
ommended Order. Following service of such sup-
plemental decision on the parties, the provisions of
Section 102.46 of the Board's Rules and Regula-
tions shall be applicable.
Robert A. Pulcrni, Esq., counsel for the General Counsel.
Richard Greespan, Esq., . of New York City, for the
Charging Party.
Sidney Zwerling, Esq. (Zwerling & Zwerling), • of New
York, New City, for the Respondent Employer.
William Perry, of New York City, for the Respondent
Union.
DECISION
STATEMENT OF THE CASE
JAMES F . MORTON , Administrative Law Judge. The
complaint , as amended , alleges that Woodcliff Lake
Manor Nursing Home, Inc. (Respondent Employer) vio-
lated Section 8(a)(1), (2), and (3) of the National Labor
Relations Act, and the Local 6, International Federation
of Health Professionals, International Longshoremen's
Association , AFL-CIO (Respondent Union) violated
Section 8(b)(1)(A) and (2) of the Act. In particular, the
amended complaint alleges that on March 12 , Respond-
ent Employer recognized Respondent Union as the ex-
clusive collective -bargaining representative of its service
and maintenance employees although - Respondent Union
had not then been selected by a majority of these em-
ployees as their representative . The complaint also al-
leges that the contract signed by Respondent Employer
and Respondent Union 4 days later is thus invalid, that
the Union -security clause therein unlawfully encouraged
membership in Respondent Union and that another
clause therein is an invalid no-solicitation rule. Further-
more, Respondent Union ' is alleged to have engaged in
independent acts which interfered with the employees'
rights under Section 7 of the Act, as discussed in detail
below. i -
The hearing was held before me on August 29-30,
September 27-29, 1983, and January 12, 1984.
On the entire record, including my observation of the
demeanor of the witneses, and after due consideration of
the briefs filed by the General Counsel and by Respond-
ent Union, I make the following
FINDINGS OF FACT
1. JURISDICTION AND LABOR ORGANIZATION STATUS
As the pleadings, stipulations, and evidence received at
the hearing establish, I find that Respondent Employer
operates a nursing home in Woodcliff Lake, New Jersey,
and that its operations meet the • applicable Board stand-
ard for the assertion of jurisdiction. I further find that
Respondent Union is a labor organization as defined in
the Act, as is 1115 Nursing Home and Hospital Employ-
ees Union, a Division of 1115 Joint Board (the Charging
Party).
I Separate allegations of conduct independently violative of Sec
8(a)(1) of the Act were settled during the hearing and were withdrawn
754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II THE ALLEGED UNFAIR LABOR PRACTICES
A Background
Based on a petition filed' by the Charging Party in
Case 22-RC-8520, an election was conducted in August
1981 among the approximately 70 full-time and regular
part-time service and ' maintenance employees of Re-
spondent Employer. Respondent Union was not a party
in the case The Charging Party lost that election by a
vote of 37 to 20 Counsel for Respondent Employer testi-
fied before me that an "outside" consulting firm had
been retained at considerable expense by Respondent
Employer to direct its campaign against the Charging
Party in that case.
The Charging Party's vice president testified that it in-
tended to make another organizing effort among those
same employees around the anniversary of that election.
As related below, Respondent Union began an organiz-
ing effort among these same employees in February
1982. The Charging Party learned in June 1982 that Re-
spondent Employer had signed a contract with Respond-
ent Union in March 1982. It thereupon filed the unfair
labor practice charges that gave rise to this case.
The General Counsel has stated in his brief that this
case "turn[s] on the simply posed question" of whether
or not Respondent Union represented a majority of the
unit employees when it was recognized by Respondent
Employer on March 12, 1982, and that "everything else
alleged in the Complaint as violations of the Act flows
from the validity or invalidity of this recognition."
B. The Recognition on March 12, 1982, of Respondent
Union
Many of the General Counsel's witnesses testified that
they were employed by Respondent Employer in early
1982 as service and maintenance employees and that they
were aware, in February and March of that year, that
Respondent Union was attempting to organize that
group of employees. As noted below, two of those wit-
nesses testified that they signed cards for Respondent
Union before it was recognized, one of them related that
Respondent Union met with about 12. employees em-
ployed in various departments and that that meeting was
held in March 1982, but it is not clear as to whether that
meeting was after or before the recognition date.
The General Counsel called Sidney Zwerling, counsel
for Respondent Employer, to testify pursuant to Rule
611(c) of the Federal Rules of Evidence. Zwerling testi-
fied that, on the basis of a card check he conducted on
March 12, 1982, he was satisfied that Respondent Union
had obtained signed cards from a majority of the service
and maintenance employees- employed by Respondent
Employer and that, on that basis, Respondent Union was
recognized. Four days later, a collective-bargaining
agreement was signed covering all service and mainte-
nance employees who work at least 20 hours a week.
The particulars as to the events in the period March 12-
16, 1982, are discussed further below.
C. The Scope of the Unit
It was not until the last day of the hearing (and the
hearing had to be reopened to do so) that the exact size
of the unit in this case was determined. Up until then
various estimates had been made. As noted above, there
had' been about 70 eligible voters when the election was
held in August 1981 in Case 22-RC-8520 among the
service and maintenance employees of Respondent Em-
ployer. The record of the earlier days of the hearing
before me discloses that the estimates of the number of
employees in the unit involved in this case as of March
12, 1982 (the date of the alleged unlawful recognition),
ranged from a low of 40 to a high of over 90. At one
point in the hearing, the parties appeared to have stipu-
lated that the unit was comprised of 52 employees. As it
ultimately turned out, Respondent had 91 service and
maintenance employees on its payroll as of March 12,
1982. Of the 91 employees, 57 were in the unit covered
by the contract signed 4 days later.2 The 91 names
appear on General Counsel's Exhibit 12 received in evi-
dence; the 57 named by the General Counsel as those in
the unit are so listed by him because they worked 20
hours or more a week-the unit as described in the con-
tract. I . i
D. The Alleged Lack of Majority Status
While the varying estimates referred to above as to the
size of the unit on March 12 were being discussed at dif-
ferent points throughout the first 4 days of the hearing,
the General Counsel was in the process of calling a total
of 37 witnesses who were employed by Respondent Em-
ployer on March 12, 1982, as service and maintenance
employees. Two of those 37 employees testified that they
had in fact signed cards of Respondent Union prior to
March 12, 1983.3
The remaining 35 testified that they never did. The
names of 7 of those remaining 35,' however, were not
among the 57 in the contractual unit as of the date of the
alleged unlawful recognition.4 Thus, of the 57 shown on
General Counsel's Exhibit 12 as being in the contractual
unit as of the date of the allegedly unlawful recognition,
only 28 testified they never signed authorization cards
for Respondent Union.5 It is,obvious that, based only on
2 The names of the 57 in the unit are John Acampora, Vicent Alvarez,
Susan Anderson , Clair Azzarella, Linda Blank , Elza Borno, Mary Brice,
Lisa Brandenburg , Loraine Bringman , Clyda Brown, Beth Brower, Maura
Brown , Karen Bryda, Chris Cassotta, Jeanne Cayo, Lucille Chabot, Ni-
colle Chancy, Emive Coicou, Carl Crites, Harry Davis, Nathalie Evans,
Ann Fitzmaunce, Grace Fogel , Marlaine Fluerismond, William Frenyea,
John Giolito; Mary Hannigan , Ann Harrison, Catherine Harris, Estane
Hercule, Susan Jordan, Marie Kernizant, Marie Kerolle, Linda Komor,
Teresa Kucich; Chris Lackovic, Linda Ladewig, Ketsia Laporte, Pauline Le-
tendre, Stella Lukaszewski , Mane Martin, Gloria McCannon, Clara
McDonald, Karen McLinskey, Olga Ortiz, Rita Reilly, Marie Robillard,
Rose Romano, Elizabeth Scharf, Carmela Scicutella, Cassandra Shackle-
ford, Kurt Staul , Denise St Peter , Bernadette Sullivan , Clare Watson,
Chnstel Wegner, John Zywokarta
3 Namely, Lucille Chabot and William Frenyea
* The seven who testified but were not part of the unit involved herein
are Ana Alvarez, Janet LeBeau, Carol Chintala, Michelle (DiNallo)
Donovan, David Gaetner, Susan Pennypicker , and Jennifer Post
5 The names of the 28 in the unit who testified that they never signed
a card for Respondent Union are all italicized in the listing of the 57
names set out above in In 2
WOODCLIFF LAKE MANOR NURSING HOME 755
the :testimony of those 28 employees, the General Coun-
sel has not shown that a majority of the 57 in the unit
did not want Respondent Union as their unit- representa-
tive on March 12, 1982.
The General Counsel, in apparent but nonetheless im-
plicit acknowledgement of the fact that 28 is not either
one-half, or a majority, of 57, has stated in his brief that
she is not required to establish a lack of majority "with
mathematical precision" in order to prove the alleged
violation. She would have me instead discredit the ac-
count given by counsel for Respondent Employer, who
was called as a 611(c) witness, as noted earlier. The Gen-
eral Counsel would also have me discredit the corrobo-
rative account of the president` of Respondent Union.
The evidence thereon is now set out. Parenthetically, I
observe that the circuitous route taken by General Coun-
sel towards proving the alleged lack of majority-might
have been avoided had he been able to produce but one
more service and maintenance employee in the contrac-
tual unit to testify that he or she never signed a card for
Respondent Union. Had he done so, 29 of 57 employees,
would have testified to that effect' and, if credited, the
lack of majority would have established with "mathemat-
ical precision." Instead, it is necessary to discuss and ana-
lyze the other evidence relied on by the General Coun-_
sel.
E. The Circumstantial Evidence
At the outset, I note that Respondent Employer had
engaged an outside consultant, apparently ' at some ex-
peiise, in its successful campaign against the efforts of the,
Charging Party in 1981 to be elected as bargaining repre-
sentative for a unit service and maintenance employees
of Respondent Employer.
I note too that, in February and March 1982, Re-
spondent Union had distributed authorization cards to,
unit employees and that, as set forth above, two employ-
ees testified that they in fact had signed such cards.
The General Counsel urges that the sudden recogni-
tion of Respondent Union on March 12, 1982, and the
signing of a contract 4 days later-when contrasted with
the opposition shown to the Charging Party by Respond;
ent Employer in 1981 and in context with the testimony
given by the employees as related earlier and by that of
the respective representatives of Respondent Union and
Respondent Employer-establishes, prima facie, that Re-
spondent Union was not the majority representative as of
March 12. The General Counsel contends further that
that showing has not been rebutted as the testimony
given by counsel for Respondent Employer and that
given by the president of Respondent Union " is a terri-
bly large pill to swallow by any standard."
William Perry, president of Respondent Union, testi-
fied as follows. His office received in the mail 50 signed
authorization cards from employees of Respondent Em-
ployer during the period in early 1982 when Respondent
Union was engaged in an organizational effort among
those employees. On March 9, 1982, Respondent Union
sent a telegram to Respondent Employer demanding rec
ognition . A meeting was arranged with its attorney for
March 12. On that date, Perry gave'the attorney, Sidney
Zwerling , the signed authorization cards. Zwerling
checked them against a list he had with him. Perry indi-
cated to Zwerling that he wanted recognition for all
service and maintenance employees who worked 20 or
more hours a week. Perry was not sure he had a majori-
ty and did not think the cards he had contained any ref-
erence to the hours worked each week by the employees
who signed them. Zwerling then told him that Perry had
a majority. Four days later, after two bargaining sessions,
a contract was signed.
Perry further testitfied that the authorization cards he
used on March 12 were later stored away at the' office
Respondent Union occupied then. That office later was
damaged in a flood. Respondent' Union now is at a dif-
ferent location. Perry testified that the cards he used are
now missing and have not been found at Respondent
Union's present location.
Zwerling's account is as follows. He was under in-
structions from his client to avoid another costly union
campaign and to recognize Respondent Union if it had a
majority. He asked the administrator of Respondent Em-
ployer's nursing home to provide him with a paper con-
taining the signatures of the service and maintenance em-
ployees and was given such a list. That list'was not pro-
duced at-the hearing. (No testimony was offered by any
employee that he or she ever signed such a list or had
never done so.) Zwerling's recollection is that Perry had
about 5 more cards than he needed to have a majority of
the approximately 90 names on that list:
F. Subsequent Events
In late April 1982, Respondent Employer' s administra-
tor asked a kitchen employee to be "the steward for the
kitchen." The employee declined because she was going
on a-leave of absence. Apparently, nothing further devel-
oped on that point.
The General Counsel called witnesses who testified
that Steve Jarema, a business agent of Respondent
Union, came to the premises of Respondent Employer in
May 1982 and gave the employees dues-checkoff cards
to sign. One employee asked him if she could be dis-
charged if she refused to sign a checkoff card. She and
the other witnesses called by the General Counsel testi-
fied that Jarema replied in the affirmative and that, when
Respondent Employer' s administrator was later asked by
them if Respondent Union could do that, she answered,
"Legally, yes." Jarema, in his testimony, simply denied
threatening any employee.
G. Analysis
-As observed above, the General Counsel did not
present direct evidence to establish that Respondent
Union was not authorized by a majority of the employ-
ees in the contractual unit to represent them when it was
recognized. Only 28 of 57 testified that they never so au-'
thorized: Respondent Union. The approach advocated by
the General Counsel implies that at least one more of
those 57 also had never so authorized the Respondent
Union. There is no evidence that any of the unit employ-
ees were coerced into signing authorization cards prior
to March 12. The General Counsel argues that the totali-
ty of the evidence requires a finding that appreciably less
756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
than a majority of unit employees had ever designated
Respondent Union as their representative That argument
was handsomely constructed in the General Counsel's
brief. It asserts that the testimony of Respondent Union's
president (to the effect that Respondent Union had 50
signed cards from unit employees when it was recog-
nized) cannot be credited because -(1) there were then
only 57 employees who worked 20 hours or more a
week, and (2) 28 of those 57 testified that they never
signed any card for Respondent Union, (3) thus making
it obvious that, at most, 29 could have signed cards for
Respondent Union, not 50. The General Counsel further
argues that, as Respondent Union was seeking a unit lim-
ited to those who worked 20 hours or more, it could not
account for the."missing" 21 cards (i.e., the balance of
the asserted 50 cards it then possessed) by suggesting
that they must have came from employees who worked
less than 20 hours a week. The General Counsel then
seeks to buttress that argument by stating that the testi-
mony offered by the respective representatives of Re-
spondent Employer and Respondent Union "inspires
little confidence" and contains "arbitrary creations" and
by commenting that Respondent Union could not offer
anything better in view of its assertion that the 50 signed
cards it claimed it had were "incredibly" 'lost' in a
`flood'.
In essence, the General Counsel would have me dis-
credit the-accounts given by Perry and Zwerling and, on
that basis,' find that Respondent Union had considerably
fewer than the requisite majority of signed cards when it
was recognized on March 12.
The difficulty that I have with that suggested ap-
proach is that, when all is said and done, it puts the onus
on Respondent Employer'and'Respondent Union to ab-
solve themselves of allegations of unlawful conduct. In
that regard, the General Counsel has observed that nei-
ther Respondent has "produced one witness to testify
that he or she' signed one card at any time on behalf of
Respondent [Union]." The record however discloses that
at least two employees called by the General Counsel as
witnesses themselves testified that they signed cards for
Respondent Union before it was recognized. More im-
portantly, the General Counsel never addressed the
matter of his not having called but one more witness to
establish the lack of majority.
All in all, while I have reservations as to whether 50
signed authorization cards were lost as a result of a
flood, while I have some skepticism'-that Respondent
Employer had a sheet containing about 90 signatures
against which it checked about 50 cards, and while the
argument advanced by the General Counsel to contest
the estimates of Zwerling and Perry that about 50 cards
were produced on March 12, 1982, gives me pause,,
-
I am
not persuaded that these considerations and the other cir-
cumstantial evidence relied on by the General Counsel
demonstrate the alleged lack of majority. A very signifi-
cant consideration -in making that evaluation is that the
General Counsel, without explanation,. did not produce.
but one more unit employee as of March 12 to testify
that he or she never signed a card for Respondent
Union. I note too that Respondent . Union had some cards
signed before March 12. The accounts of, Perry and
Zwerling are not so implausible in themselves as to over-
ride that consideration. It is possible that Perry hoped to
have a majority; it is possible that Zwerling made less
than a meticulously careful examination to verify that
claim; and it. is possible that Respondent Union had a
majority of all 91 service and maintenance employees
(including those working less than 20 hours_ a week) as of
March 12 and, presumably, a majority of the 57 in the
unit in which it sought and was given recognition. The
circumstances surrounding the recognition accorded to
Respondent Union are indeed suspicious, especially in
views of the campaign Respondent Employer had con-
ducted against the Charging Party's organizational effort
about to find a violation when evidence apparently read-
ily available to the General Counsel to establish defini-
tively a lack of majority was, without explanation, not
proferred. e
I note also that there is no allegation that Respondent
Employer or Respondent Union had engaged in any co-
ercive conduct before Respondent Union was recognized
which might have tainted that recognition.'
In view of the foregoing, I find that the evidence is
insufficient to establish that Respondent Union did not
possess a majority of authorization cards when it was
recognized on March 12, 1982.
The General Counsel amended the complaint during
the hearing to allege also that the unit in which Re-
spondent Union was recognized was inappropriate for
purposes of collective bargaining and 'that, as a conse-
quence, the recognition of Respondent Union as the ex-
clusive representative of the employees there was viola-
tive-of the Act. The ' General Counsel concedes, in his
brief, that there is nothing inherently inappropriate in a
unit of service and maintenance employees who work 20
or more hours a week.8 The theory he advances for as-
serting that the unit is unlawfully inappropriate is, in es-
sence, identical to that considered above- it assumes
"the lack 'of majority status ." As I have already deter-
mined that the evidence does not establish the asserted
lack of majority status, I must reject his theory as well
and I thus find that the evidence is insufficient to support
the contention that the unit is unlawfully inappropriate
for purposes of bargaining. .
In the General Counsel's beef, there are statements
that the "scenario of this case" suggest that "the smaller
the bargaining unit, the less likelihood that discovery of
the non-majority status would be made." The General
Counsel, elsewhere in his brief, contends that "the
American Beef Packers, 187 NLRB 996 , 997 (1971) See also Regency
Gardens Co, 263 NLRB 1268 (1982), and Progressive Construction Corp.,
218 NLRB 1368 (1975). Cf Sanford Home for Adults, 253 NLRB 1132
(1981).
7 Cf Siro Security Service, 247 NLRB 1266, 1271-73 ( 1980); Clermont
Bros Co., 165 NLRB 698 (1967) -
8 In any event , Board cases make that point very clear Thus , in Trust-
ees of Columbia University, 222 NLRB 309, 311-312 (1976), the Board ex-
pressly . declined to include employees who averaged 8 to 10 hours a
week in the unit found appropriate even though the employer there was
party to collective-bargaining agreements with other unions which cov-
ered employees working 8 to 10 hours a week . Cf. Tiflin Enterprise, 258
NLRB 160 (1981 ), where an'agreement to exclude certain regular part-
time employees was held not to have contravened the policies of the Act
even though the Board itself would have included those employees.
WOODCLIFF LAKE MANOR NURSING HOME
March 12, 1982 recognition was a device designed by
(Respondent Employer. and Respondent Union) to frus-
trate the return of [the Charging Party]." There is no
direct evidence that Respondent Union initiated its cam-
paign in early 1982 pursuant to any scheme it had then
with Respondent Employer. There is no question that
the March 12 recognition had such an effect. What is
significant to me, however, is that this case was not tried
on any theory that the Charging Party had a continuing
interest by reason of the showing it made in the election
held in August 1981 such that Respondent Employer
was obligated to maintain neutrality during the certifica-
tion year nor is there any allegation in the amended com-
plaint of disparate treatment.9
I turn now to the remaining issue . I credit the ac-
counts of the General Counsel's witnesses that Respond-
ent Employer's administrator sought unsuccessfully in
May 1982 to nominate a unit employee to be the steward
for Respondent Union for the employees working in the
kitchen. In his brief, the General Counsel urges that this
attempt should be found to be violative of the Act al-
though not specifically pleaded. On May 2, 1984, I ap-
proved a partial settlement in Case 22-CA-11676 which
effectively remedied the allegations of the complaint that
Respondent Employer, independently of the recognition
issue above and also of the no-solicitation issue in this
case , had interfered with employees' rights under Section
7 of the Act. In view of the settlement, no useful pur-
pose is served by requiring Respondent Employer to re-
state its assurances that it will not do anything to inter-•
fere with the rights of its employees guaranteed by the
Act, especially as the settlement specifically remedied
the allegation that the Respondent Employer violated the
Act by the response given by its administrator when em-
ployees questioned her as to what Steve Jarema told
them concerning their refusal to sign dues-checkoff
cards, as discussed next.
The complaint also alleged that Respondent Union, by
Steve Jarema, threatened employees in Mayor June 1982
with loss of their-jobs unless they signed dues-checkoff
cards. I credit the accounts of the General Counsel's wit-
nesses over Jarema's bare denial and thus find that he
told -them, when asked if they could be discharged for
refusing to sign dues-checkoff cards, that they could.
The last complaint allegation to be considered is that,
by the provisions of ,article V of the contract between
Respondent Employer and Respondent Union, Respond-
ent Employer has maintained an unlawfully broad no'so-
licitation rule. Article V, paragraph 1, of the contract
reads:
No employee shall engage in any union activity
including the distribution of literature which could
interfere with the performance of work during his
working time or in working areas of the Home at
any time.
Respondent Employer notified employees in March
1982 that this contract became effective. Although
9 Cf. Film Consortium , 268 NLRB 436 (1984), Bruckner Nursing Home,
262 NLRB 955 ( 1982), Lyndale Mfg. Corp, 238 NLRB 1281 (1978)
757
"working time" is for work, the rule is unlawful as it ap-
plies only to union activities.' ° -
CONCLUSIONS OF LAW
1. Respondent Employer is an employer within the
meaning of Section 2(2), (6), and (7) of the Act.
2. Respondent Union and the Charging Party are each
labor organizations as defined in Section 2(5) of the Act.
3. Respondent Employer did not violate Section
8(a)(1), (2), and (3) 'of the Act by recognizing Respond-
ent Union as the bargaining agent of certain of its service
and maintenance employees on'March 12, 1982, and by
executing a contract covering a unit of service and main-
tenance employees on March 16, 1982, which contained
union-security provisions. -
4. Respondent Union did not violate Section 8(b)(1)(A)
or (2) of the Act by reason of its accepting recognition
on March 12 or executing the March 16 contract.
5. Respondent Employer has violated Section 8(a)(1)
of the Act by promulgating and maintaining the no-solic-
itation rule set out in article V, paragraph 1 of the
March 16 contract."
6. Respondent Union, by its representative, Steve
Jarema, restrained and coerced employees in violation of
Section 8(b)(1)(A) of the Act by having advised them
that they could be discharged if they declined to sign
dues-checkoff forms.
7. The unfair labor practices found above in para-
graphs 5 and 6 affect commerce within the meaning of
Section 2(6) and (7) of the Act.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
edi2
ORDER
A. Respondent Woodcliff Lake Manor Nursing Home;
Inc, Woodcliff Lake, New Jersey, its officers, agents,
successors , and assigns, shall
1. Cease and desist from
(a) Maintaining in effect the provisions of article V,
paragraph 1, of the contract it has with Respondent
Union dated March 16, 1982.
(b) In any like or related manner interfering with, re-
straining , or coercing employees in the exercise of rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
10 Our Way, Inc, 268 NLRB 394 (1983)
ii It would not be appropriate to invalidate the entire contract because
of that rule or the answer given by Respondent Union's representative
Jarema when he was asked by employees if they could be discharged for
failing to sign dues-checkoff forms Cf Piledrivers Local 438 (Ernest Con-
struction) 234 NLRB 1301 (1978) There, the invalid contract provision
was ordered deleted.
12 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings , conclusions , and recommended
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 pur-
poses
758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Post at, its facility-in Woodcliff Lake, New Jersey,
copies of the attached notice marked "Appendix." 13
Copies of the notice, on forms provided by the Regional
Director for Region 22; after being signed by ,the Re-
spondent's authorized representative, shall, be posted by
the Respondent immediately upon'receipt and maintained
for 60 consecutive days in conspicuous places including
all places where notices' .to employees are customarily
posted. Reasonable steps shall be taken by the Respond-
ent to'ensure that the notices'are not altered, defaced, or-
covered by any other material.
(b) Notify the Regional Directoi- in writing, within .20
days' from the date of this Order what steps the Re-
spondent has taken to comply.
B. Respondent Local 6, International Federation of
Health Professionals, International Longshoremen's As-
sociation, AFL' CIO, its officers, agents, and -representa-
tives, shall
1. Cease and desist from
(a) Advising employees of Woodcliff Lake Manor
Nursing Home, Inc. that they could be discharged , for
failing to sign dues-checkoff authorization cards " for Re-
spondent Union. .
(b) In any like or related manner restraining or coerc-
ing employees in the exercise of rights guaranteed them
by Section 7 of the Act.
2. Take the following affirmative action 'necessary.. to
effectuate the policies of the Act -
(a) Post in conspicuous places at offices, meeting halls,
and-other places where notices to members are custom-'
arily posted, copies of the attached notice marked "Ap-
pendix."t' Copies of the notice, on. forms provided by
the Regional -Director for Region 22, after being signed
by the Respondent's authorized representative, shall be
posted by the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places
including all places' where notices to members are cus-
tomarily posted Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material:
(b) Notify the Regional Director in writing within 20
days from the date of -'this' Order what' steps the Re-
spondent has taken to comply. • ,
13 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 Na-
Labor Relations Board" shall read "Posted Pursuant to a Judgmenttional
of the United States Court of Appeals Enforcing an,Order of the Nation-
al Labor Relations Board " - -
14 See fn 13, above
IT IS FURTHER RECOMMENDED that . the complaint is
dismissed in all other respects. i s -
15 Pars 14 and 15, having been settled during the hearing, are of
course not subject to this recommended Order
APPENDIX A
NOTICE To EMPLOYEES -
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS- BOARD
An Agency of the United States Government
WE WILL NOT give effect to article V,•paragraph I of
our collective-bargaining agreement with Local 6, Inter-
national Federation of Health Professionals, International
Longshoremen ' s Association , AFL-CIO as that para-
graph unlawfully restricts only union activities of em-
ployees during working time.
WE WILL NOT in any like or related manner interfere
with, restrain , or coerce you in the exercise of the rights
guaranteed by Section 7.
WOODCLIFF LAKE' .. MANOR NURSING
HOME, INC. .
APPENDIX B -
NOTICE To MEMBERS
POSTED BY ORDER, OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
• WE WILL NOT advise' employees of Woodcliff Lake
Manor Nursing Home, Inc . that they could be dis-
charged for failing to sign dues -checkoff authorization
forms. - • i
'.WE WILL NOT in any like or related manner, restrain
or coerce you in the exercise of your 'rights guaranteed
by Section 7. - ,
LOCAL 6, INTERNATIONAL FEDERATION OF
HEALTH PROFESSIONALS, INTERNATIONAL
LONGSHOREMEN 'S ASSOCIATION, AFL-
CIO