Red Oaks Nursing Home, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Red Oaks Nursing Home, Inc. and Retail Clerks Union, Local No. 37, a/w Retail Clerks Interna- tional Union, AFL-CIO. Cases 25-CA 9299 and 25-RC 6717 March 26, 1979 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENEII.() AND TRUESDAI.E On November 14, 1978. Administrative Law Judge Almira Abbot Stevenson issued the attached Decision in this proceeding. Thereafter, the Respondent filed exceptions and a supporting brief: and the General Counsel filed cross-exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,land conclusions2 of the Administrative Law Judge and to adopt her recommended Order, as modified herein.) ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Or- der of the Administrative Law Judge, as modified be- low, and hereby orders that the Respondent, Red Oaks Nursing Home, Inc., Michigan City, Indiana, its officers, agents, successors, and assigns, shall take the i Both the Respondent and the General Counsel have excepted to certain crediihity lindings made by the Administrative Law Judge. It is the Board's cstablished pohcy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the rel- evant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Podui,, Inc., 91 NLRB 544 (1950). enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing her findings. ' he General Counsel excepted to the Administrative Law Judge's find- ing that Administrator Oszuscik effectively disavowed Personnel Director Barth's threat to deprive employees of benefits if the Union got in. He con- cedes that Oszuscik did counter Barth's threat that they would take the benefits they already had but argues that the threat to no longer help em- ployees with garnishments was not countered, we find it unnecessary to pass on this exception, since any additional violations that might be found would be cumulative and not necessary to support the bargaining order. 'The General Counsel excepted to those portions of the Administrative Law Judge's Order and notice to employees that contain the language "in any like or related manner." He contends that because Respondent's unfair labor practices are so pervasive the broader language "in any other manner" is necessary. We agree. The pattern oif Respondent's unfair labor practices. requiring both a cease-and-desist order and a bargaining order, reveals such a proclivity t violate the Act and purpose to prevent employees from exer- cising their rights that the broader language is warranted. We have modified the Administrative Law Judge's recommended Order accordingl. action set forth in the said recommended Order, as so modified: I. Substitute the phrase "in any other manner" for the phrase "in any like or related manner" in para- graph l(h). 2. Substitute the attached notice for that of the Administrative Law Judge. Ir IS FURTHER ORDERED that the objections in Case 25-RC-6717 be sustained, that the election be set aside, and that the petition in that case be dismissed. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT coercively interrogate employ- ees about their union activities or the union ac- tivities of other employees. WE WILL NOT give the impression that em- ployees' union activities are under surveillance. WE WILL NOT threaten employees with repri- sals because of their union activities. WE WIIL NO] imply that benefits have been lost because of the Union or would be lost if the Union is selected as the employees' bargaining representative. WE WILL NOT create the impression that selec- tion of the Union as the employees' bargaining representative would be futile. WE WIL.L NOT instruct employees to report union activity to management, or solicit griev- ances, implying they will be adjusted if employ- ees refrain from union activity. WE WILL NOT refuse to bargain with Retail Clerks Union, Local No. 37, a/w Retail Clerks International Union, AFL-CIO, as the exclusive representative of employees in the following ap- propriate unit: All full time and regular part time service and maintenance employees including charge aides, senior aides, nurse aides, house clerk, dietary employees, charge cook, laundry-linen employees, senior laundry-linen aide, house- keeping employees, senior housekeeping aide, activity employees and maintenance employ- ees employed at our 910 South Carroll Ave- nue, Michigan City, Indiana, facility, exclusive of all registered nurses, all licensed practical nurses, all professional employees, all office clerical employees, all confidential employees, all guards and all supervisors as defined in the Act. 241 NLRB No. 65 444 RED OAKS NURSING HOME WE WILL NOT in any other manner interfere with our employees' exercise of the rights guar- anteed them by Section 7 of the National Labor Relations Act, as amended. WE WILL, upon request, bargain with Retail Clerks Union, Local No. 37, a/w Retail Clerks International Union, AFL-CIO, for the unit de- scribed above with respect to rates of pay, wages, hours of work. and other terms and conditions of employment and, upon request, embody in a signed agreement any understanding reached. RED OAKS NURSING HOME, IN(C. DECISION STATFMENT ()F THE CASE ALMIRA ABBOT STEVENSON, Administrative Law Judge: A hearing was held in this consolidated proceeding at Michigan City, Indiana, March 15-17 and April 11-13. 1978. The amended charge in Case 25 CA-9299 was filed October 27. 1977, and served on the Respondent October 27 and November 15, 1977. The complaint was issued March 7, 1977, and amended at the hearing. The Respon- dent-Employer duly filed an answer to the complaint and amended it at the hearing. A petition was filed by the Union August 24. 1977. and an election was conducted by the National Labor Relations Board October 21, 1977. in the appropriate stipulated unit.' There were 36 votes for and 39 against the Union. with 3 challenges. which were insufficient to affect the results. The Petitioner-Union duly filed objections to the election, and on December 1, 1977, the Regional Director for Region 25 of the National Labor Relations Board issued a report on objections to conduct affecting results of election, order directing hearing, order consolidating cases, and notice of hearing. In his report, the Regional Director found that Objection I had been with- drawn; that Objections 2. 3, and 4 alleged conduct also alleged as unfair labor practices in Case 25-CA-9299: and that his investigation had uncovered additional alleged ob- jectionable conduct which might constitute additional grounds for setting aside the election and which were also alleged as unfair labor practices in the CA case. The Re- gional Director therefore consolidated Cases 25-CA-9299 and 25-RC-6717 for hearing. The issues are whether or not two individuals are super- visors; whether or not the Respondent violated Section 8(a)(l) of the National Labor Relations Act, as amended. and interfered with the October 21, 1977, election by engag- ing in various allegedly coercive conduct: whether or not the Union represented the majority of employees in the ap- The appropriate unit is: All full time and regular part time service and maintenance employees employed by Red Oaks Nursing Home. Inc., at its 910 South Carroll Avenue, Michigan City, Indiana. facility. including charge aides, senior aides, nurse aides. house clerk, dietary employees, charge cook. laundry- linen employees, senior laundry-linen aide, housekeeping employees, senior housekeeping aide. activity employees and maintenance employ- ees but excluding all registered nurses. all licensed practical nurses, all professional employees. all office clerical employees, all confidential em- ployees, all guards and all supervisors as defined in the Act. propriate unit before the election: whether or not the Re- spondent violated Section 8a)(5); and whether or not a Gissel 2 remedy is justified. Upon the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by the Respondent-Employer and the Gen- eral Counsel. I make the following: FINI)IN(;S OF FA I AND CON('IISIONS OF- LAW I. JI RISD)I( lON The Respondent, an Indiana corporation, maintains its principal office and sole place of business at Michigan City. Indiana. where it is engaged in the business of operating a nursing home. During the past year, the Respondent re- ceived gross revenue in excess of $100.000 and Medicare revenue in excess of $10,000. The Respondent is an em- ployer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. I.ABOR ORGANIZATION The Union-Petitioner is a labor organization within the meaning of Section 25) of the Act. Ill. UNFAIR L.ABOR PRA(l I(1-S A. Introduction I. Supervisors and agents The Respondent is engaged in the operation of a 116-bed comprehensive nursing home. It is organized into five de- partments: nursing, with 54-58 employees classified as nurses aides; dietary. 20 employees classified as cooks and aides; activity, with 2 part-time employees, and housekeep- ing, with 8 employees doing housekeeping and laundry work. The complaint alleges. the answer admits, and I find that the following individuals were, at material times. su- pervisors and agents of the Respondent: Donald Nixon president and business manager (retired October 1977); Maryann Oszuscik--administrator: Virginia Papunen-di- rector of nursing; and Gene Dipert-dietary supervisor. I here is a dispute over the supervisory status of Lorraine Barth and Julia Johnson. Lorraine Barth Although the Respondent initially admit- ted the allegation in the complaint that Barth is a supervi- sor, it amended its answer at the hearing to deny this allega- tion. There is no contention that Barth should be included in the appropriate unit. The evidence on the issue of Barth's status consists mainly of the testimony of Barth and Ad- ministrator Oszuscik, as follows: Barth's title is director of personnel. She does not directly supervise an, employees, nor does she make the final deci- sion to hire, fire, discipline, or adjust the grievances of any employee. She shares an office with the assistant adminis- trator, located next to the office of Administrator Oszuscik. Under Oszuscik's supervision, Barth directs the personnel 2N . R v. Gissel Packing o. Inc. 395 .S 5'5 (19691. 445 I)EC('ISIONS OF NATIONAL LABOR RELATIONS BOARD program of' the Red Oaks Home. Thus, she keeps records on hiring, firing, discipline, timecards. health certificates, vacations, medical insurance, payroll, and accounts payable and receivable, and deals with employees on most of these matters with authority to have them sent to her office for this purpose. Barth conducts the initial interview with all applicants and retains custody of their application forms. Upon receiv- ing a requisition from a department head for a new em- ploxec. she reviews the application forms on file and pulls those she considers qualified for the job: she telephones those applicants and sets up appointments. When an appli- cant arrives, Barth conducts another interview during which she briefs the applicant on Red Oaks employment policies. She then sets up an appointment with the depart- ment head and checks out the references, which she for- wards along with the application form and any other intofr- mation she has obtained in the interview to the department head with whom she discusses the merits of suitable appli- cants. Until July 1977. Barth had not been invited to man- agement staff meetings, but she was invited to two such meetings, on July 20 and 26. 1977. and attended them along with the president and business manager, administrator, de- partment heads, and the company attorney. At these meet- ings, the Respondent's approach to the union campaign, which had recently begun, was discussed, as were campaign materials and do's and don't's. Administrator Oszuscik ex- plained that Barth attended these meetings because. "We felt that she had a great deal of employee contact with handing out paychecks and checking time cards and with insurance . . and I felt she should be aware of some of the things that she was not allowed to say and those things that she was allowed to say." Oszuscik continued that inasmuch as Barth spoke for management on such matters as time- card rates, paychecks. insurance, and hospitalization, Oszu- scik was concerned that Barth know what to say and what not to say. Although Barth's supervisory status may be doubtful un- der Board precedent' it is clear that she spoke for manage- ment on matters relating to labor relations and that man- agement enlisted her on its side in its contest with the Union for employee allegiance. I find, therefore, that em- ployees could and reasonably did regard her as a manage- ment representative in this context and that her conduct throughout is therefore chargeable to the Respondent.4 Julia Johnson: Johnson's name was included on the Ex- celvior list, and she voted in the Board election without challenge. Although at the opening of the hearing the Re- spondent stipulated to the inclusion of Johnson in the ap- propriate unit, it changed its position thereafter and now contends she is a supervisor. In contrast to Barth. Johnson was not invited to the management antiunion strategy meetings. and she played a leading role in the Union's orga- nizing campaign. See Adelphi L'nieriAt. 195 NlRB 639, 644 (1972): Nor(hrop .i4rcra/i. Inc. 106 NlRB 23 ( 1953) Roc hesier (Cadet (Cleaners. In. 205 NLRB 773. fn. 5 1973): United Dalrn Farmer (perlz AsOimoatwn. 194 NlRB 1094. 1096 (1972). Bank. f .4mer'a. Vatalnal 7rusr and Saavinga A.s.s-oa tlonl 196 N .RB 591 (1972). and Sarhernl Seating ('anpalnl. ' u Prautlhra Dinilinl, 189 NlRB 391 (1971). ciled bh the Respondent. are distinguishable on their facts. There are approximately 20 employees in the dietary de- partment -- cooks, dietary aides, and dishwashers. Gene Di- pert (referred to by all the witnesses as Mrs. Dipert) is in overall charge as Food Service Supervisor. Johnson (re- ferred to by the witnesses as Julia or Julie) has the title of assistant food supervisor; she is the only employee with that title. She was promoted to that position in 1975. at which time she received a wage increase from $2.30 to $2.55 an hour; her current wage is $3.73 an hour, approximately 50 cents more than that of other employees in the department. Dipert and other department heads are salaried. Johnson and cook Michele Pavlak have completed a technical col- lege dietetic assistant program. and Johnson is a member of The Hospital. Institution, and Educational Food Service Society. which Pavlak chose not to join. Johnson's job de- scription, which Dipert has reviewed with her on numerous occasions, is entitled "Assistant Food Supervisor Cooks." Dipert's chief functions are to plan the menus; purchase the food and supplies; hire, discipline, and discharge depart- ment employees; and prepare work schedules. She is on duty Monday through Friday from 8 a.m. until 4:30 p.m. Johnson works Tuesday through Saturday, from 6 a.m. until 2:30 p.m. Johnson's duties are substantially the same as that of other cooks, except that she is responsible for the quarterly fire drills, while Dipert is present. Cook Loretta Carter credibly testified that the day before the hearing be- gan in this proceeding, while Dipert and Johnson were both present in the department, Dipert instructed Carter not to ask Johnson questions about the work but to ask Dipert., as she was the head of the kitchen. The Respondent's main contention is that Johnson exer- cises supervisory authority and is in f'ull charge of the kitchen during the 16 hours a week when Dipert is not present and while Dipert is on vacation. All witnesses agreed that Johnson is in charge during these periods; she is responsible that the work goes smoothly. Although she tells employees to quit talking and get busy. Dipert has in- structed her on many occasions not to tell employees what to do. Johnson also orders or substitutes food when it unex- pectedly runs out: and she calls in off-duty employees to replace no-shows. I do not credit Administrator Oszuscik and Supervisor Dipert, however, that Johnson is respon- sible for the serving of a well-balanced diet or that she has authority to assign work, discipline employees, or adjust their grievances; Johnson's testimony that Dipert insists on retaining full authority in these matters is the more credible, in light of the probabilities on the record as a whole. More- over, the record shows that the cooks, including Pavlak, Clara Lukasik. and Mary Jane Goodloe, none of whom are contended to be supervisors, have the same duties and re- sponsibilities as Johnson during other times of the week when Dipert is not present-from 4:30 to 7:30 p.m. Mon- day through Friday, after 2:30 p.m. on Saturday, and all day Sunday. During these periods. I find, as Oszuscik indi- cated, the work "is a fairly standardized thing in that all the employees know what they are to do." In view of' the above facts, including the tight control exercised over the department by Dipert. the fact that other employees in the unit are covered by the same job descrip- tion and exercise authority comparable to Johnson's, and the fact that the Respondent. which was advised by labor counsel at the time, included Johnson's name on the Excel- 44h RED OAKS NURSING HOME sior list but excluded her from staff meetings. I agree with the General Counsel and the Union that Johnson was a leadperson or strawboss but not a supervisor within the meaning of the Act. 2. Organizational campaign The Union's campaign began in July and was carried out through meetings with employees at various public rooms, including a pizza party for younger employees on October 6, and at the home of employee Diana Chambers: distribu- tion of campaign literature, including a flyer bearing the names of certain employees endorsing the Union's cause: distributing Vote Yes buttons at a meeting on October 13: and obtaining signed authorization cards. Management first became aware of the campaign July 20, when a union meet- ing notice appeared on a Red Oaks bulletin board. An at- torney was consulted and a staff meeting was immediately called; at this and a subsequent such meeting held July 26. the staff was provided with the customary do's and don'ts and instructed not to engage in conduct, including interro- gation, which would interfere with the employees' right to organize. Thereafter, the Respondent campaigned against the Union by means of meetings of Business Manager Nix- on with employees and distribution of literature urging them to reject the Union. No violation is alleged to have occurred in the Respondent's meetings or literature. On August 22, 1977, the Union dispatched a letter to the Respondent demanding recognition, and on August 24 it filed a petition in Case 25-RC 6717. On August 24, the Respondent refused recognition. As indicated, the election was held October 21, and the Union lost and filed objec- tions which pertain to the same matters alleged in the com- plaint as violations of Section 8(a)(1). B. Violations of Section 8(a)(1J I. Director of Nursing Virginia Papunen Papunen is second in command to Administrator Oszu- scik. Papunen supervises 45 50 nurses aides. Her assistant is Janice Sechrist. The complaint alleges, in effect, and the answer denies, that in the course of one-on-one meetings Papunen had with most of the nurses aides during the week of the election, and on one occasion with employee Szabo before that, Papunen interrogated employees. threatened them with reprisals if they supported the Union, promised benefits for refraining from supporting the Union. gave the impression of surveillance of union activities, and solicited employee grievances and implied they would be adjusted if employees refrained from union activity. The following tes- timony was presented in support of these allegations: Stella Szabo is a nurses aide to whom Papunen gave a routine yearly wage increase on October 3. Two days later, on October 5 (the day before the Union's October 6 pizza party for the younger employees), Papunen summoned Sza- bo to her office. Papunen's assistant, Sechrist, was present. Szabo testified that after she and Papunen discussed whether or not Szabo was unhappy with her wage increase, Papunen asked her if she knew how much the union men make a year. When Szabo replied she did not care, Papu- nen asked her, "Well, how about the pizza party? Do you know about our pizza party?" When Szabo said she did not Papunen told her, "Well, they are going to have a pizza party' and coke. You mean you are not invited?" Szabo said she knew nothing about it, and Papunen then declared, "I hear you have been making phone calls to the other em- ployees trying to get them to go to meetings." Szabo con- fessed to having made one such call, and Papunen informed her. "Well, we know about all the meetings and the parties that have been going on. We know everything that the union is doing. You girls don't have to keep hiding it from us. Szabo also testified that she had a one-on-one interview with Papunen shortly before the election when Szabo was, as she recalled, wearing a Vote Yes button. According to Szabo, Papunen asked her during the interview "why I though we would need a union" and encouraged her to vote in the election. Johnnie Anderson: By way of background to one of the statements Papunen allegedly made to Anderson, the rec- ord shows that in 1976 the Respondent instituted a work schedule for nurses aides of 80 hours' work fbr two consecu- tive 2-week periods followed by 64 hours for the next 2- week period, a schedule which was approved of by vote of the majority of nurses aides at the time. In May 1977, be- fore the advent of the Union, a group of aides consisting of Anderson, Ella Dennis, Lue Fleming, and Jo Barkow re- quested that Papunen restore the full 80-hour schedule and were told she would look into the matter in the spring after vacations were over. The union campaign intervened, how- ever, before any decision was made with respect to chang- ing the schedule. Anderson testified that in her interview with Papunen 2 days before the election, while Anderson was wearing a Vote Yes button, Papunen made the following remarks: Johnnie. I'm really surprised at you girls. I'm very hurt . . .Because you are trying to get that union in here. Anderson laughed. and Papunen continued: I don't know what you're laughing about. I'm going to make it very hard for you girls. Anderson mentioned the work schedule, and Papunen said: Well, I had changed the schedule. Since you all brought the union in here. it's nothing I can do about it here. Papunen charged Anderson with "going to all the meet- ings." and when Anderson admitted she had gone to all but one of the union meetings. Papunen exclaimed: Well, I see now I can't talk no more to you, but I'll tell you one thing. If that union comes in here. I'm going to make it hard for you girls. If it doesn't come in here, I'm still going to make it hard for you. Annie Fleming: Papunen summoned nurses aide Fleming to the dining room for a preelection interview after speak- ing with Anderson. According to Fleming. Papunen asked her why she was wearing a union button and whether she thought the Union would put up with employees' watching TV. Papunen allegedly told Fleming, among other things, "The Union is not worth a damn" and that Papunen "knew 447 DECISIONS OF NATIONAL LABOR RELATIONS BOARD all about it and she knew about everything that goes on there:" that Papunen had made out a schedule, but "her hands were tied, there was nothing she could do," showing Fleming a full 80-hour work schedule she said she had made out and repeating that her hands were tied, there was nothing she could do. and adding, "Whether the union gets in here or not I will personally make it very hard for you girls." Fleming testified she asked Papunen several times in the past for a full 80-hour work schedule, but Papunen had always said things were going to stay like they were. Flem- ing conceded Papunen told her to come in to vote but char- acterized the statement as saying Fleming had to vote not as encouraging her to vote. Diana Chambers testified to a pre-election conversation with Papunen in the dining room, in part as follows: Papu- nen began by saying "[Y]ou must think I am stupid. Diana. I know that you have been having the meetings at your home ... I thought you was against the union. All this time you let me think you were against it." Chambers agreed that she had been against the Union, and asked how a peti- tion could be got up showing that the employees did not want the Union. Papunen told her, however, she could not give such information because "it would have been against the union's rights." Papunen then wanted to know if em- ployee Debbie Streeting had changed Chambers' mind about the Union. Chambers denied this and asserted that "the reason we went to the Union was to have more bene- fits." Papunen said that with all the attorney's fees it was costing, "we don't need this damn union" and that the em- ployees would not benefit if the Union did get in. Papunen then almost yelled out, "[W]hat the hell do we need a union for, Diana? Why? Why do we need this union?" (Employ- ees Sandra Bruce, Jacqueline Cowan, and Sue Green, who had come in the dining room for lunch, corroborated Chambers as to this statement.) Papunen continued that she had granted requests for days off but the cost of the Union would prevent any wage increases: that she could change employees' shifts if she wanted to, she could put Chambers on the 7 to 3 shift and if Chambers could not make that shift she "might as well be looking out for another job." Papunen allegedly also informed Chambers that "people were telling her everything any time there was a meeting at my home or any time there was a meeting anywhere else she knew about it." Chambers admitted that when she asked if Papunen would be against her if the Union won the election, Papunen replied she would not and would not hold a grudge against Chambers and that Papunen encour- aged her to vote. Ella Dennis testified as follows with respect to relevant portions of her interview: Papunen began by stating, "Well, I notice you are wearing your yes button. Does that mean you are going to vote yes?": Papunen asked how Dennis knew the majority was going to vote yes. Dennis said she had always been dissatisfied with the 64-hour work sched- ule: Papunen asserted she had told Dennis she would think about that in the spring when vacations were over, and asked, "Well, how do you know I don't already have an 80 hour schedule made up for the aides?" Papunen also said she "was going to fight as hard as she could to keep the union out because we don't need a union." Dennis said that whether the Union got in or not she would be the same Ella Dennis she had always been, but Papunen told her, "Oh, no, things won't be the same." Deloris Phillips testified that Papunen said she was going to talk to all the aides "about this union mess" and asked, "what did the yes button on my shoes mean, that I was voting yes?" Laura Phillips had left the Respondent's employ in March and returned in May 1977. Phillips testified that on October 19, 1977, Papunen took her into the dining area, where we sat down and she said, "Tell me all about it, Lau- ra." And I said, "Tell you all about what? ... Are you going to ask me questions about the union?" She said she didn't want to harass me or coerce me, that she didn't know why we wanted any outsider representing us. Phillips voiced several complaints, and Papunen charged that Phillips knew nothing about unions, which Phillips contradicted on the grounds that her father was a union steward. Papunen then "said she didn't know why she was talking to me . . ." It is people like you baby that will be sorry when this is over.' " When Phillips responded that Papunen had not said anything she wanted to listen to, Papunen told her "she was sorry she hired me back." Karen Haynes testified that Papunen began her interview by saying she was surprised to see an intelligent person like Haynes wearing a union button and asking why she needed someone to represent her. Haynes responded she did not need anyone to represent her, and Papunen said, "Well, tell me about it?" Haynes said the employees needed sick bene- fits, and Papunen responded that "they had been working on it prior to the union activities." Haynes asked if it was okay to be the union observer at the election. After thinking it over, Papunen allegedly told her, "Well, it's not okay, but you can do it. But it doesn't mean you can vote yes." Brenda Callahan wore a Vote Yes button to her inter- view with Papunen, and, according to Callahan, Papunen began by saying she knew how Callahan was going to vote because of the Vote Yes button, but things would get tougher if the Union got in, that "we would make sure that we only get 15 minutes [for break]. And only a half hour for lunch." Callahan explained that although this was the rule at the time, it had not necessarily been enforced within an extra 5 minutes. Callahan admitted that Papunen encour- aged all employees to vote in the election. Papunen denied making the remarks attributed to her by these employees. She testified that she conducted preelec- tion interviews with substantially all the nurses aides at the suggestion of Respondent's attorney. She said that in each interview, except those in which employees raised addi- tional subjects, she followed a format she devised based on the staff do's and don'ts and company handouts, which she wrote on a card she carried with her, to the following effect: [I]t had beer. a long haul. The election is coming up this week. We hope that you will think for yourself. It's going to be a secret ballot and I certainly urge you to vote no matter what your feelings. Papunen testified, with some corroboration by Sechrist, that her October 5 conversation with Szabo was about Sza- bo's disappointment with a recent pay raise and desire to be 448 RED OAKS NURSING HOME promoted to senior aide, and that Papunen informed Szabo that Red Oaks had been unable to verify certain prior expe- rience Szabo had claimed in her application. According to Papunen, her preelection interview with Anderson followed Papunen's format except for protests by Anderson that peo- ple were blaming her for the union activity but she hoped Papunen did not think so as Anderson was loyal to Red Oaks and would think for herself with respect to the elec- tion because Red Oaks had been good to her. Papunen in- sisted she only followed her format in her interview with Fleming and that the only other comment was by Fleming, who had been off ill and who said the Home's hospital coverage was not good. Papunen testified her interview with Chambers was similar to those she had with other employ- ees, except that Chambers (who Papunen said had volun- teered information many times about union meetings and who had stated at an employee-staff meeting in September that the Union was going to try to get a former employee's (Streeting) job back for her) told Papunen that Streeting had lied to the Union about her termination. When Dennis raised the work-schedule question, Papunen said, she merely told Dennis she could do nothing about it at that point and would not make any promises. Although she tried to make her format statement to Laura Phillips, she said, Phillips refused to listen, saying "you don't have a thing to say to me," and walked away. Papunen testified she told Karen Haynes she was a very intelligent person and she should think for herself. When Haynes asked if it was all right for her to be an observer in the election, Papu- nen responded she would have to confer with Oszuscik and get back with the answer, and later told Haynes it would be all right. Papunen claimed to feel she knew Haynes better than some of the other nurses aides, but she could not ex- plain why their testimony was so different. I credit the testimony of the General Counsel's witnesses. Although some of them seemed nervous and unable to re- member everything that was said, this is not surprising in view of the presence of the Respondent's top management in the hearing room. Stella Szabo, Annie Fleming, Ella Dennis, Deloris Phillips, Laura Phillips, Karen Haynes, and Brenda Callahan all conveyed the impression of honesty under adverse circumstances. I do not, however, accept Haynes' testimony regarding alleged remarks by Papunen about being a union observer in the election, because I am convinced she misunderstood what Papunen said on that subject. Sechrist's faintly perfunctory corroboration of Papunen against Szabo failed to outweigh the force of Sza- bo's superior demeanor and the inherent believability of her story. Although Diana Chambers had vacillated on the union issue, her account of her interview with Papunen also seemed inherently believable, and she was corroborated on one point by witnesses, two of whom I have found credible. In assessing the credibility of Anderson, I have discounted all testimony about another conversation with Papunen af- ter the election, as in my view the factors on each side of that dispute cancel each other out. I find her account of her one-on-one preelection interview convincing and consistent with remarks I have found Papunen made to other employ- ees, with no indication of collusion or "orchestration" as charged by the Respondent. The number and apparent in- tegrity of these witnesses persuade me that Papunen yielded to the temptation to go beyond the do's and don'ts she had been instructed on and the format she devised in her efforts to defeat the union movement, and I therefore do not credit her against the aforenamed employees.5 In assessing the impact which Papunen's questions and comments may reasonably be said to have had on the em- ployees' exercise of their right to a free choice of bargaining representative, I have considered the reassurances given in general terms by Business Manager Nixon in his speeches and the Respondent's campaign literature, Papunen's en- couragement of all employees, including those wearing Vote Yes buttons, to vote in the election, and her disavowal of any intent to coerce or harass Laura Phillips or hold a grudge against Diana Chambers. In my opinion, however, these factors could not have nullified the coercive effect of such remarks by a powerful personality like Director of Nursing Papunen upon nurses aides summoned to a face- to-face encounter with her. Nor can I find merit in the Re- spondent's contention that Papunen's references in the past and during some of the interviews to her alleged "open door policy" and the existence of a grievance procedure in the Respondent's personnel handbook render lawful Papunen's solicitation of grievances, in view of the fact that she had never, before the advent of the Union, sought out any em- ployee's complaints while displaying a predilection to set them right. Moreover, with regard to the work schedule of the nurses aides, it is clear that before the advent of the Union several aides had requested an increase in hours to a straight 40-hour week; that Papunen had told some such a change would not be made and others that the matter would be considered after vacations were over in the spring; and that no decision had in fact been made. There- fore, when Papunen deceptively told employees during the union campaign that a decision had been made and implied that the requested schedule would have been implemented had the Union not appeared on the scene, the employees could reasonably conclude they were being deprived of a benefit because of their union activities. Therefore, based on the above credited testimony, I find that the Respondent, on October 5, 1977, coercively interro- gated Stella Szabo and gave her the impression it was keep- ing employees' union activity under surveillance; during the 4 days preceding the Board election of October 21, 1977, again interrogated Szabo: threatened Johnnie Anderson that reprisals would be taken against employees because of their union activities and conveyed the impression that union activities were under surveillance; interrogated An- nie Fleming, implied that benefits had been lost because of the Union and would be lost if the Union were selected as the employees' representative, and gave the impression of surveillance and threatened reprisals because of union ac- tivities: interrogated Diana Chambers, created the impres- sion with her of surveillance and the futility of selecting the Union as the employees' representative and threatened re- I have not relied on testimony by Sandra Bruce or Darlene Phillips be- cause their attempted explanations for the absence of support in their pre- trial affidavits for some of their statements were unconvincing. Nor have I relied on Jo Barkow or Betty Butts as, because of demeanor or content, their testimony was of uncertain dependability. 6 Although no specific allegation to this effect was included in the com- plaint, evidence thereon was received without objection, and the issue was full) litigated at the hearing. 449 DECISIONS OF NATIONAL LABOR RELATIONS BOARD prisals against Chambers; interrogated Ella Dennis and im- plied the loss of a benefit and reprisals because of the Union; interrogated Deloris Phillips; interrogated Laura Phillips and threatened reprisals against her; interrogated and solicited grievances from Karen Haynes; and threat- ened Brenda Callahan with reprisals if the Union was se- lected. I conclude that Respondent thereby violated Section 8(a)(1) of the Act. 2. Dietary Supervisor Gene Dipert Dipert supervises the approximately 20 employees in the dietary department. The complaint alleges, and the answer denies, that Dipert interrogated employees, threatened them with reprisals if they supported the Union, ordered employees to report union activities to her, told employees they could not converse with one another during working hours in order to discourage union activity, and instructed employees not to engage in union activities. Michelle Pavlak, a cook, credibly testified without con- tradiction that Dipert asked her, 3 or 4 weeks before the election, how she felt about the Union. Julia Johnson testified that a week before the first union meeting she attended on August 4, 1977, Dipert asked her and cook Clara Lukasik "if we knew anything about the union drive at Red Oaks. And had we signed a card." When the employees replied they knew nothing about the union drive, Dipert said, "Oh, come off it. Don't play inno- cent with me." Dipert said a union woman had come in and talked to the employees that night, and asked "could we please tell her if we saw anybody come in, that she wanted us to protect her." Within 2 weeks of the election, Johnson further testified, Dipert told her and several other employees whose identity Johnson could not remember that, "it was bad enough now, but if the union gets in, it's going to be a lot worse." On March 9, 1978, shortly before the hearing began in this proceeding, Dipert called Loretta Carter to her desk after Carter had taken a morning break with Julia Johnson and Clara Lukasik. According to Carter, Dipert told her "it was a mess" and asked "if Clara and Julie had discussed the Union bit with me," Carter said they had not, and Dipert "advised me not to sign a Union card if anyone come in and asked me to sign it. And Julie and Clara were the ring- leaders of it in the kitchen," and added that Carter was "not to talk this over with no one." Dipert testified that around the first of August she heard of a union representative's presence in the kitchen and asked Johnson and Lukasik to notify her if anyone showed up again as "they are not allowed in the kitchen." Dipert denied Carter's testimony and asserted that she called Car- ter to her desk after the morning break "and I mentioned that there were union cards in the house. We had word of it. And, since she was new there, I didn't feel that she ought to become involved." I have found above that Johnson was a credible witness. Her demeanor for truthfulness seemed superior to Dipert's and her testimony here carries an aura of authenticity. I also credit Carter as against Dipert, whose testimony re- garding her conversation with Carter was similar to Carter's but shaded to soften the possible impact of what she really said. I find that Dipert on August 4, 1977, coercively interro- gated Johnson and Lukasik and instructed them to report union activity to her; 2 weeks before the election threatened Johnson and other employees with unspecified reprisals if the Union were selected as collective-bargaining represent- ative; and on March 9, 1978, coercively interrogated Lo- retta Carter and, in the entire context of Dipert's remarks, coerced Carter in the exercise of a free choice as to whether or not to support the Union's cause.' I conclude that by this conduct the Respondent further violated Section 8(a)(1). 3. Director of Personnel Lorraine Barth The complaint alleges, and the answer denies, that Barth interrogated employees, threatened them with reprisals if they gave support to the Union, and gave the impression their union activities were under surveillance. Johnnie Anderson was summoned to Barth's office 2 or 3 days before the October 21 election, but their conference took place in the dining room, where they happened to encounter each other. Anderson described it as follows: "[S]he asked me was I interested in the union, and I asked her who told her that I was. And she said she had ways of finding things out." After some further discussion, Adminis- trator Oszuscik joined them, and Barth said the Respondent had helped Anderson with garnishments in the past, "[b]ut if the union gets in, we won't be able to help you ... if the union got in, they would take the benefits that we already have." Oszuscik spoke up, however, at this point and told Barth, "Lorraine, no, that's not true we cannot take what the girls already have. We will just have to negotiate from there." Julia Johnson had a conversation with Barth on October 18, 1977. According to Johnson, Barth sent for her to come to the office, and when she arrived, Barth said "since she wasn't a part of the bargaining unit, that she would like to talk to me ... as the Assistant Superintendent that maybe some of the girls might have come and talked to me." John- son agreed they had, and Barth asked, "What did they want with the union? What did they think the union would get them?" Johnson replied she would not tell any names but gave some of the employee complaints. Barth then asked what Johnson intended to do on Friday (election day). Johnson replied it was a free country and she would do as she wished. Barth asked if she realized "that things would be worse if the union got in?" and offered to show figures on other nursing homes which had unions. Johnson denied that her own vacation was mentioned. According to Barth, Johnson had asked to take her vaca- tion at a time when her father was ill. So when Barth saw Johnson in the office, she stopped her and said she was sorry to hear Johnson's father had been ill, and discussed her vacation request with her. Johnson responded that "this 'I place no reliance on Johnson's testimony that she overheard Dipert ask employees Lukasik and Goodloe, 2 weeks before the election, how they were going to vote or on her testimony that Dipert told her and Goodloe after the election, on March 8, 1978, that they were not allowed to talk during work- ing hours, as the General Counsel's witnesses were in disagreement as to what Dipert, who contradicted Johnson, said on these occasions. 450 RED OAKS NURSING HOME is what the girls had indicated that they felt that they should be paid for funeral leave or sick leave." Barth asked, "How do you feel about it?" And Johnson responded that her feelings were her own. Barth denied Johnson's contrary testimony. I have heretofore credited Anderson, and I also find her testimony more believable than Barth's denial with regard to Barth's interrogation of Anderson and conveying the im- pression of surveillance 2 or 3 days before the election, which I conclude were violative of Section 8(a)(1). How- ever, even accepting Anderson's version of Barth's alleged additional comments, with which Barth's testimony dis- agreed, I find that Barth's implied threat to deprive employ- ees of benefits if the Union got in was effectively disavowed immediately by Administrator Oszuscik, Barth's superior, thereby neutralizing the coercive impact of Barth's state- ment. I also credit Johnson, as I have above, over Barth, who seemed capable of slanting her testimony to support the Respondent's cause. I therefore find that on October 18, 1977, 3 days before the election, Barth coercively interro- gated Johnson and threatened her with unspecified reprisals if the Union were selected as bargaining representative. I conclude that this conduct violated Section 8(a)(1) of the Act. C. The 8(a)(5) Violation The complaint alleges, and the answer denies, that the Respondent unlawfully refused to bargain with the Union as the exclusive representative of the employees in the ap- propriate unit on and after August 22, 1977. The Respondent admits, and I find, that the appropriate unit is: All full time and regular part time service and mainte- nance employees including charge aides, senior aides, nurse aides, house aides, house clerks, dietary employ- ees, charge cook, laundry-linen employees, senior laun- dry-linen aide, housekeeping employees, senior house- keeping aide, activity employees and maintenance employees of the Respondent employed at its facility at 910 South Carroll Avenue, Michigan City, Indiana, exclusive of all registered nurses, all licensed practical nurses, all professional employees, all office clerical employees, all confidential employees, all guards and all supervisors as defined in the Act. The parties stipulated there were 78 employees, including Julia Johnson, in the appropriate unit on August 22, 1977. Initially, I find that 34 of these employees had signed valid union-authorization cards on or before that date.' In addi- 'This list includes employees whose signatures were solicited by Julia Johnson: Johnnie Anderson Lue Fleming Deborah Streeting Brenda Callahan Cassell Kiner Sharon Parrish Deborah Nicholsen Proft Becky Bulot Cindy Hahn Clara Lukasik Jo Barkow Pat Fraze Dorothy Summerlin Karen Haynes Ernestine Lewis Deloris Phillips Stella Szabo Judith Dick tion, contrary to the Respondent's contention, I find, based on the credited testimony of Johnnie Anderson and John Case, that five additional valid cards were executed on or before August 22, 1977.9 The Respondent challenges the following additional cards, which are in evidence and bear dates on or before August 22, 1977: Doreen Moore testified she signed an authorization card July 20, 1977, obtained from Union Organizer Candy How- ell. According to Moore, Howell told her the card was "[t]o form a committee so there could be an election." As Moore clearly was not told that her card would be used only to obtain an election, I find her card valid.i ° Ella Dennis signed a card August 1, 1977, at the request of employee Rose Mary Elmore. Although Dennis had the impression that Business Manager Nixon told the employ- ees that the purpose of the cards was solely to obtain an election, she affirmed that no one else told her that. I do not understand the law to permit the invalidation of a union authorization card by management in this manner, and I find this card valid. Betty Butts' card bears the signature date of July 6, 1977, and is stamped on the back as received by the National Labor Relations Board August 24, 1977. Butts testified that she put the wrong date on the card, as she actually signed it in August but could not remember what date in August. She further testified that "[s]omeone at the meeting" where she signed the card said the "only reason" for signing was to get an election, but she did not know who said it. As this card was stamped received by the NLRB on the same day as other cards which Union Business Representative John Case testified were mailed on August 22, 1977, to the Re- gional Office along with the petition in Case 25-RC-6717, I find that the card was executed on or before August 22, 1977. do not believe that an employee would reasonably conclude from a statement such as that set forth above by an unidentified individual that the card she signed would be used for no other purpose than to help get an election when the card, which she read before signing, on its face stated that the signer wanted the Union to act as her collective bargaining agent." I therefore find this card valid. There is a card in evidence which bears the name Kath- leen Hatfield and the date July 22, 1977. It is stamped re- ceived by the Union July 25, 1977. Although there is testi- mony that Hatfield took an active part in the union campaign and obtained employee signatures on other cards, Hatfield was not available to testify at the hearing. As the Julia Johnson Nancy Brummett Michelle Pavlak Mary Jane Goodloe Annie Fleming Dawn Lawrenz Evelyn Paddock Patricia Semla Sandra Bruce Elizabeth McKinney Barbara Johnston Ruthie Williams Janet Lewis Rose Mary Elmore Laura Phillips Dorothy Lewandowski Although Nancy Brummett's card is dated merely "8-77," I credit Julia Johnson that she saw Brummett sign the card the same day Dawn Lawrenz signed, August 20, 1977. ' Bessie Kellogg, James Sadler, Lee Ethel Jones, Cornne Matthews, and Lue Hart. 'Serv-U-Stores. Inc., 234 NLRB 1143 (1978). t Serv-U-Stores. Inc.. supra. 451 42DECISIONS OF NATIONAL LABOR RELATIONS BOAR[) signature on the card is the same as Kathleen Hatfield's signature on many other documents in evidence. I find that Hatfield executed the union authorization card on the date which it bears and that this card is therefore valid. As I have fund that a total of 43 of the 78 employees in the appropriate unit signed valid union authorization cards on or before August 22. 1977, the date of the Union's letter demanding recognition and bargaining.'2 I further find that the Union represented a majority of the employees in the appropriate unit on that date. In view of the numerous and substantial violations of Section 8(a)(1) committed by the Respondent before and after that date, it is clear that the Respondent's refusal of the Union's demand, which it re- ceived August 23 or 24. in its response dated August 24. 1977. was intended to and did in fact undermine the Union's majority status and prevent the holding of a fair election. Accordingly, I conclude that the Respondent vio- lated Section 8(a)(5) by refusing to bargain on and after August 24, 1977." i\N. ()BJECTIONS Based on the findings and conclusions above of violations of Section 8(a)(1) occurring between August 24, 1977, the date of the Union's petition in Case 25-RC-6717, and Oc- tober 21. 1977, the date of the election, I recommend that Objections 2, 3. and 4 be sustained. v. REMEDY Having found that the Respondent has engaged in unfair labor practices in violation of Section 8(a)( ) and (5) of the Act, I recommend that it be ordered to cease and desist therefrom and from infringing in any like or related manner on its employees' exercise of their rights under Section 7 of the Act. I recommend that the Respondent also be ordered to take certain affirmative action necessary to effectuate the policies of the Act. The Respondent contends that a bargaining order is not justified because the unfair labor practices committed were minor in nature; the literature distributed by the Respon- dent and the remarks to individuals by supervisors assuring employees of their freedom of choice in the election sub- stantially minimized the impact of its unfair labor practices. there has been a turnover since the election of almost 35 percent of the union complement; and other factors. I do not, however. consider the unfair labor practices committed to be minor in view of their nature, number, and extent of probable impact throughout the bargaining unit. In my opinion, neither the factors recited above nor the Board's traditional remedies for 8(a)(1) violations render it likely that another election would result in a truer measure of uninhibited employee choice than the authorization cards executed on or before August 22, 1977. 1 therefore, in all the circumstances of this case, find that the Respondent's unfair labor practices have undermined the Ulnion's major- ity and made the holding of a fair election most unlikely. 12 In these circumstances, it is unnecessary to rule on the validity of the additional authorization cards in evidence. 1 Sien- p Bottling Coampanv of San Francisco. 235 NLRB 297 (1978): Trading Port. Inc. 219 NLRB 298 (1975). and recommend that the petition in Case 25-RC-6717 be dismissed and the Respondent ordered to bargain on re- quest.'4 Upon the foregoing findings of fact and conclusions of law. and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: OR[)ER' The Respondent, Red Oaks Nursing Home. Inc., Michi- gan City, Indiana. its officers, agents, successors, and as- signs, shall: 1. Cease and desist from: (a) Coercively interrogating employees concerning their union activities and the union activities of other employees. (b) Creating the impression that employees' union ac- tivity is under surveillance. (c) Threatening to take reprisals against employees be- cause of their union activities. (d) Implying that benefits have been lost because of the Union or would be lost if the Union was selected as the employees' bargaining representative. (e) Creating the impression that selection of the Union as the employees' bargaining representative would be futile. (f) Instructing employees to report union activities to management, or soliciting grievances and implying they would be adjusted if employees refrain from union activity. (g) Refusing to bargain collectively concerning rates of pay. wages, hours, and other terms and conditions of em- ployment with Retail Clerks Union, Local No. 37 a/w Re- tail Clerks International Union, AFL-CIO, as the exclusive bargaining representative of its employees in the appropri- ate unit. (h) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action, designed to ef- fectuate the policies of the Act: (a) Upon request, bargain collectively with Retail Clerks Union. Local No. 37, a/w Retail Clerks International Union, AFL-CIO, as the representative of its employees in the appropriate unit and, if a contract is reached, sign it. (b) Post at its nursing home in Michigan City, Indiana, copies of the attached notice.'6 Copies of said notice, on forms provided by the Regional Director for Region 25, after being duly signed by an authorized representative of Respondent, shall be posted by it immediately upon receipt thereof, and be maintained by it for a period of 60 consecu- tive days thereafter. in conspicuous places, including all 14 N.L.R.B. v. Gissel Packing Co.. Inc., 395 U.S. 575 (1969); Plastic Film Products Corp., 238 NLRB 135 (1978). A In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings. conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 1' In the event that this Order is enforced by a judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National l.abor 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." 452 REI) OAKS NURSING HOME 453 places where notices to employees are customarily posted. ing. within 20 days from the date of this Order, what steps Reasonable steps shall be taken by the Respondent to in- Respondent has taken to comply herewith. sure that said notices are not altered. defaced. or covered by I s F Rll R ORI)tREI) that the objections filed in Case any other material. 25 RC 6717 be sustained, that the election be set aside. (c) Notify the Regional Director for Region 25. in writ- and that the petition in Case 25 RC 6717 be dismissed.