Liberty House Nursing Home

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Liberty Nursing Homes, Inc., d/b/a Liberty House Nursing Home and United Paperworkers Interna- tional Union, AFL-CIO-CLC United Paperworkers International Union, AFL- CIO-CLC and Liberty Nursing Homes, Inc., d/b/a Liberty House Nursing Home. Cases 5-CA-8719. 5-RC- 10021, and 5-CB- 2275 May 25, 1978 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN FANNING AND MEMBERS JENKINS ANt) PENE LLO On February 24, 1978, Administrative Law Judge Michael O. Miller issued the attached Decision in this proceeding. Thereafter, the Respondent filed ex- ceptions and a supporting brief. The General Coun- sel filed cross-exception, 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 brief and has decided to affirm the rulings, findings.' and conclusions of the Administrative Law Judge and to adopt his recommended Order. IT IS FURTHIER ORDERED that the election in Case 5- RC-10021 conducted on May 13, 1977, be, and it hereby is, set aside, and that the case be remanded to the Regional Director for Region 5 for the purpose of conducting a new election in the appropriate unit at such time as he deems the circumstances permit a free choice of a bargaining representative. [Direction of Second Election and E.Lcel.sior foot- note omitted from publication.] DECISION STATEMENT OF THE CASE MICHAEL O MILLER. Administrative Law Judge: These cases were heard on September 15 and 16, 1977, at Coving- ton, Virginia.' At issue was whether Liberty Nursing Homes, Inc., d/b/a Liberty House Nursing Home, herein Liberty House or the Employer, interfered with, restrained, and coerced its employees in the exercise of their statutory rights, in violation of Section 8(a)(1) of the National Labor Relations Act, as amended, and engaged in conduct war- ranting that the election be set aside, and whether United Paperworkers International Union, AFL CIO-CLC, herein the Union, restrained and coerced employees in the exercise of their statutory rights in violation of Section 8(b)(l)(A) of the Act. Briefs were received from all parties and they have been carefully considered. Upon the entire record, and upon my careful observation of the witnesses and their demeanor, I make the following: ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Liberty Nursing Homes, Inc., Clifton Forge, Virginia, its officers, agents, suc- cessors, and assigns. shall take the action set forth in the said recommended Order. I lhe General Colunsel has excepted to certain crcdibhilit findings lmade bh the Ad inlistr;ltive I.aw Judge. It is the Board's established policv lot ito oxerrule ait Admin slrative l.aw Judge's resoilutions with respect credliilitt unless the clear piepondcrilace of all of Ihe relevlant evidence colnl ni , us thiat the resouitions ire inc olrtect. Standard Drl H'ill Prduwti. In,. 91 NLRB 544 (1950). enfd. 18I F 2d 362 (( A 3, 1951. We have cmilefulk examinedl the re cor d and find ino ha is for reversing his finding . Ihe Administrltl e I .IJdge dismisxsed two 8(b) I()(A) allegitioni filt Mlichael I:l her anld Robert Smith threatenel cmpto Nes In the aihencie o an exception. we adopt these findings in addition. tle reiold shows iiia tl, Respolidcent asked cnmprlVee to sign a ffidaits ttcstiing [1i i-t .cIliel O Ralph l.ienin's speeches I hie General Co iunsel did nort llege this t. he I itolaton of Sec ;( I8a) ll ithie oilplait buit he l. contetnded ial tihel 1tCilng lie further contended thai the signilg wv.s ctinnected to the grultinig if litc relroactive wage increases in v1latitn of Sec 8( 1 )( II he Adnlinixtrr,te L aw Judge founid Ihe marter noil iti have been full, lhtigalted and fur thct that nelthel concllusion wiis suppoi ted in the record. We .itlopt this findsinng il thr ahbsence of an excepption FINDIN(;S O- FA('I I [He RESPONDENT'S BUSINESS AND titH LABOR ORGANIZATIION INVOLVED Liberty House is a Virginia corporation engaged in the operation of a nursing home in Clifton Forge, Virginia. Jurisdiction is not in issue. The complaint alleged, Respon- dent admitted, and I find and conclude that Respondent is and has been at all times material herein an employer, as defined in Section 2(2) of the Act. engaged in commerce and in operations affecting commerce, as defined in Sec- tion 2(6) and (7) of the Act. The complaint alleged, the answers admitted, and I find and conclude that the Union is and has been at all times material herein a labor organization within the meaning of Section 2(5) of the Act. Ihe chare icharge (se (' 2275 was filed on May 10, 1977. and was amended on June 13. 1977 Ihe harge In ( ise 5 (CA 8719 ws rfiled on June 28. 1977 Tic consolihdtled complaints were issued bh the Reglmnal Director for Region 5 of the National l.ahbor Relati. ns Board on A igust 4, 1977. Also consolidated fo hearting w ith the unfair labor practice comp- Iaints i ere Ulnion filed objec lionls to an election, on which a Supplemental Decision had issued on .tigust 4. 1977 1i mel) answer, were lied to the uriilir labor practice complalints. 236 NLRB No. 55 456 LIBERTY HOUSE NURSING HOME II BACKGROUND The Union began its organizational activities among the employees of Liberty House in February 1977. (All dates hereinafter are 1977, unless otherwise specified.) Robert Smith, the Union's International representative, conducted the campaign, with the assistance of some of the employ- ees, including about 10 who volunteered to serve on the organizing committee. Authorization cards were distrib- uted in the nursing home. employee meetings were held. and literature was distributed. The Employer opposed the unionization of its employees and conducted a number of meetings to dissuade them from supporting or voting for the Union. The meetings were conducted by Ralph Lemon, the Employer's execu- tive vice president. The organizational activities culminated in a representa- tion election conducted on May 13. The Union failed to secure a majority of the valid votes cast and filed timely objections to conduct of the Employer which, it contended, warranted that the election be set aside. III CASE 5 CB 2275 A. Alleged Threats by Michael Fisher General Counsel contends that Michael Fisher. then an employee of Liberty House, was an agent of Respondent Union and as its agent made coercive statements to other employees, in violation of Section 8(b)( )(A) of the Act. The Union denies both Fisher's agency' status and any vio- lations of the statute. On March 3. 1977, Robert Smith. the Union's interna- tional Representative, wrote the Employer requesting rec- ognition. In that letter, Smith informed the Employer that an organizing committee had been formed and named 10 members of that committee, including Fisher. Other than an indication that these employees volunteered for this committee at a meeting sometime prior to March 3. the record does not establish when the committee was estab- lished. Evelyn Goodbar, a nurses aide, testified that she had a conversation with Fisher on February 20. He insisted on giving her an authorization card. Goodbar asked Fisher about strike violence, specifically whether she would be hurt if she decided to cross a picket line. According to her testimony, he replied, "Not bodily, but who knows. I may throw tacks on the road." Nurses aide Charlotte Rock testified to a conversation with Fisher on February 24. He solicited her signature on an authorization card and, when asked, told her that a union would be good because the employees could get more money if they went on strike. She asked him what would happen if there was a strike and she were to cross the picket line. He replied, "You cross the picket line to get in to work and you can he hurt." Brenda Jack. also a nurses aide, testified that on March 9 she asked Fisher to return authorization cards signed by her children. She said that, without any preamble. Fisher began talking about strikes. He told her that if there was a strike and they crossed the picket line. her children could and would be hurt. According to Fisher, prior to having made up his own mind about the Union, he was asked by Mrs. Stancil, As- sistant Nursing Director, to speak with some of the other employees who were curious about the Union. This testi- mony is uncontradicted. Shortly thereafter, he spoke with Goodbar, Rock, and Jack all on the same night in late February. He denied asking any of them to sign cards. Each of these employees, Fisher testified, asked him whether union negotiations could lead to a strike and what could happen in the event of a strike. He told them that there could be a strike if bargaining did not result in an agreement. He cited, as an example of what could happen, the strike at a neighboring company, Hercules, where cars had been turned over. Both union and nonunion employ- ees, he said, were hurt.2 Based upon the foregoing, I must conclude that General Counsel has failed to establish that Fisher was an agent of the Union at the time he spoke to Goodbar and Rock. Whether they or Fisher are credited, these conversations occurred prior to any evidence establishing more than a casual connection between Fisher and the Union. Even as- suming that he was soliciting signatures upon authorization cards when the conversations took place, that, in itself, is insufficient to cloak him with authority to bind the Union by his actions. On the record before me, there was no evi- dence that at those times Fisher was more than a volunteer. However, according to Jack's testimony, Fisher's con- versation with her took place on March 9, after Fisher had been appointed to the organizing committee. As between Fisher and Jack, Jack presented the more credible de- meanor. Considering the inconsistencies between Fisher's testimony and his affidavit. improbabilities in his testi- mony, particularly as to when he decided to support the Union, and the demeanor of these witnesses, I therefore credit Jack's testimony as to both the contents of this con- versation and the date on which it occurred. The question is thus narrowed to whether a union may be held responsible for a coercive remark by an employee solely on the basis that the employee was a member of its organizing committee. Board precedent mandates that it may not. Tennessee Plastics, Inc., 215 NLRB 315 (1974); International Ladies' Garment Ui'orAers' Union, AFL-CIO (Georgetossn Dress Corporation), 214 NLRB 706 (1974). In both of those cases, as here. the employee who made the coercive statements was an active union supporter who vol- unteered to serve on the in-plant organizing committee be- cause of his own interest in securing union representation. From the rather sparse record before me, it appears that here. as in Georgretown Dress, the individual was not a paid employee of the Union or even yet a member of the Union. And, as in that case, the conduct complained of occurred at the jobsite and there was no evidence that the Union I his lestirnon is In conflict with the affidavit he signed during the inses atli ,atin of this matter In Ihat affidait. which isher claimed misstat- ed iAhat he tod the Boalrd agent, Fisher related that, at tercules. "nonunion people croised the picket line slome of these people got injured aind their carsswere d.lllllgced hx the utnion people lFisher initialed each page iof that affidailt .Iand winetd It In Iigh of the specificits of thai affidailt. and I is;hel' siitgItir anid iitl.,s thereon, I cannot credit hi, a.sserttion that it isst.alted the c ilcct e he guase Ithc in'etia1tin, Ligenlt 457 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was aware of it. Further, while Fisher may have been active in the campaign, there was no evidence that he was the Union's principal contact with the employees in the nurs- ing home. As in Tennessee Plastics, the Union here had one or more of its professional representatives in the area who managed the campaign, conducting frequent meetings with the employees and appearing outside the nursing home to engage in handbilling. Under all of the foregoing circumstances, I conclude that notwithstanding his membership on the organizing committee, Michael Fisher was not an agent of Respon- dent Union, and that Respondent Union is not responsible for his statements.3 I shall therefore recommend that this allegation be dismissed. B. Alleged Threat by Robert Smith The complaint alleged. and Respondent Union denied, that International Representative Robert Smith threatened employees with physical harm if they crossed a picket line at the nursing home. The evidence in support of this allegation comes from two employees, Ilona Downey and Harold Clark, who at- tended the organizational meetings together. Both testified that Smith, in answering a question about strikes, told the employees that if the Union got in and there was a strike "anybody crossing the picket line would get hurt." Smith denied uttering the foregoing statement. Strikes and violence, he said, were among the areas of major con- cern to the employees and employees asked a number of questions about strikes and the Union's strike policy in the meetings. According to his testimony, Smith explained the International Union's policy requiring employee support and International approval before a strike could be called. He also explained the restrictions upon striking at a nurs- ing home under the health care amendments to the Na- tional Labor Relations Act and emphasized how remote was the possiblity of a strike taking place. Employees ques- tioned Smith about violence which had taken place during strikes at two nearby locations, Hercules (where this union is the collective-bargaining representative) and Garthway Dam (where another union was involved). Smith acknowl- edged that there had been violence and stated: We had no control over it. Sometimes these acts do happen, but the International Union's position was that we took up for the employee's rights at all times but we did not encourage any violence and I empha- sized the necessity for standing up for the employee rights. In reference to a question about how violence arose in a In reaching this conclusion. I am not unmindful of N'. I.R B N. (;e rgeB town Dress C orporlion. 537 F.2d 1239 (C.A. 4. 1976). denying enforcement to the subsequent Georgetown Dress decision, 217 NLRB 41 ( 1975). wherein the Board found that employer's refusal to bargain unlawful. The ourt there concluded, contrary to the Board, that misconduct by members of the union's in-plant organizing committee was attributable to the union. It is, however, the duty of the Administrative Law Judge "to apply established Board precedent which the Board or the Supreme Court has not re'ersed." Insuranee Agenrs' International Union, AFL CIO (The Prudenioal Insurince (Company of Amerioa), 119 NLRB 768. 773 (1957). strike situation, Smith replied that "accidents do happen" but the Union did not condone it and tried to discourage it as much as possible. I found Robert Smith to be a candid witness who gave every impression of testifying in a straightforward and truthful manner. He did not try to avoid or deny the fact that strike violence was discussed in the meetings and his explanation of how this subject arose and how he replied is both logical and probable. As contended by the Union, I deem it highly improbable that a union representative as experienced as Smith would have told these employees, al- ready deeply concerned with the prospects of a strike and its implications, that a strike was likely or that they or their fellow employees would be hurt in such an event. I there- fore find Smith's recollection of his statements at the orga- nizational meetings to be more accurate than those of Downey and Clark. The statements of Smith, as I have found them, were frank admissions of problems that sometimes accompany strikes. They were not threats that violence would occur at Liberty or to Liberty House employees. Accordingly, I shall recommend that this allegation of the complaint be dismissed. IV. CASE 5-CA 8719 A. Ralph Lemon's Speeches In the course of Respondent Employer's campaign to defeat the Union's organizational efforts, Ralph Lemon, its executive vice president, made a series of speeches to the employees. General Counsel contended that these speeches threatened reduction or elimination of benefits and warned the employees that Respondent's bargaining posture would force them to engage in a strike in order to secure any additional benefits. In speeches they attended, employees Wanda Miklos and Connie McAllister recalled Lemon stating that "Mrs. Tyree (Director of Nursing) was very understanding about children and if they were sick she would let us off to take them to the doctor, but if the union got in, we would have to worry about getting them there the best way we could." They also recalled Lemon stating that the employees would have to strike in order to get anything and that the em- ployer would bring in other employees even if it had to use a helicopter to do so. Lemon had prepared texts for each of his three speeches and, he testified, read those speeches to the groups of as- sembled employees, as he told them he was doing. He also added some unwritten comments at specified points in the speeches and answered employees' questions. One question asked was whether the employees would still be able to take time off to take their children to doctors' offices if the Union was voted in. He answered that in negotiations, the employer could ask for stricter work rules and that if such rules were agreed to, they would apply to everyone uni- formly. Lemon's testimony in this regard was consistent with the tenor of his written remarks, wherein he discussed the employer's right to seek such things as uniform and strict work rules in negotiations. It was also corroborated by William Snead, the administrator of Liberty House, and 458 LIBERTY HOUSE NURSING HOME by the several employees who testified on Respondent's behalf. Similarly, Lemon denied saying. in haec verha, that there would be a strike at Liberty House in the event of a union election victory and his testimony was corroborated by those same witnesses. Lemon's written speeches were very detailed, much more than mere outlines. Lemon. himself, impressed me as a thorough, careful, and well-prepared witness and these characteristics in the witness lead me to believe that he was equally well prepared, careful, and thorough in delivering his speeches. I credit his corroborated assertion that he read the speeches or delivered them, essentially unchanged. from memory. I further find his version of the reply to the question of time off to take dependents to doctors' offices to be more accurate than the recollections of Miklos and McAllister. That particular statement, as he made it, did not contravene the provisions of Section 8(a)( 1 ) of the Act. Lemon's written speeches do not contain statements that there would be a strike in the event of a union victor) and I conclude that he did not make such a specific statement. However, Liberty House's intention to bargain hard in the event of a union victory and the possibility of strikes were prominent themes and were heavily emphasized in those speeches. The question remains whether that emphasis was such as to reasonably tend to convince employees that the selection of a bargaining agent would be a futile and poten- tially job-threatening act. Included in the first speech, consisting of three double spaced pages, delivered about April 29, were the following statements: Liberty Nursing Homes does not want a union here. We don't think a union can help you and we are not going to have a union tell us how to run our business. Under the law, even if the union is voted in, it cannot get you anything which the Nursing Home doesn't agree to. The union can make you promises, but they can't guarantee you a thing. On the other hand, a union can cost you money in initiation fees, special assessments, and lost wages if there is a strike. This union has a record of strikes. but we don't think a Nursing Homes [sic] is the place to have something like that happen. We would fight a strike if one happened here. We would hire replace- ments for anyone who went on strike. We would stay in operation in order to take care of the human beings who are our patients here. * . Before I close, let me add one more thing. Let's get this completely out in the open. Under the law, if the union is voted in, all wages and benefits are frozen. The union and the Nursing Home would negotiate to agree on a contract covering a lot of things besides wages and benefits. Nothing would be agreed on until everything is agreed on. Negotiations could go on for a long time. Keep this in mind, when the union is telling you what they are going to get for you. The Nursing Home can ask for things, too, such as strict work and safety rules, the violation of which would be grounds for discipline. There would be a lot of things we would want spelled out in a contract. So its a two- way street and you could end up with less after the bargaining is done. The employees at the hospital went for a year after their election before they had a contract. They lost out on three (3) months of a wage increase which the hospital would have given during that summer except for the fact that they were in ne- gotiations and everything was up for grabs. The second speech, delivered on May 6, was somewhat longer. seven pages. In that speech, these same themes were repeated in a question and answer context, with greater emphasis on striking, as follows: Q. What happens if the union does win the elec- tion'? A. If the union wins then the Nursing Home and the [Union sit down to bargain and negotiate a con- tract. This is a give and take process. Each side can have demands and counterdemands. There can be no contract unless both sides agree to it. The union can- not guarantee you a thing which the Nursing Home doesn't agree to. Q. ('an the union guarantee me anything? A. No. The law requires the Nursing Home to bar- gain in good faith with the union if the union wins the election. But this does not mean that the company must agree to what the union asks for. The union knows this but they don't want you to know it. Has the union shown you any guarantee in writing of what they will get you here? No, of course not. And they won't, because they know they can't guarantee you a thing. Please keep in mind that bargaining is a two way street. The Nursing Home can ask for things in a con- tract such as work rules and management rights. I hope I am making it clear to you that this bargaining thing can get pretty stickly. The Nursing Home can ask for things it wants and there is a lot to talk about besides money. There is no final agreement on anything until everything is agreed upon. It can take a long time to bargain for a contract and there is no guarantee that in the end there will be a contract. Also. you could end up with less. Remem- ber, if the union wins all wages and benefits are fro- zen. Q. What happens if the Nursing Home does not agree to the union's demands? A. The Union could try to get you to strike to force the Nursing Home to give in. Q. What happens if I strike for economic reasons? A. If sou go out on strike for higher wages or other economic reasons, the Nursing Home will stop paying your wages. If you strike for economic reasons. the Nursing Home can hire replacements to stay in opera- tion to take care of our patients. If you were replaced. you could not get your job back unless there was a vacanc. If a lot of people are on strike there will be a lot of replacements. Who knows how long it would be before sou could come back to work if at all? A strike can cost people their jobs as well as lost wages. 459 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The union doesn't want you to know this but here are newspaper clippings of other strikes this union has had where people who struck were replaced. Here it is. (Holds up clippings). Q. What if I go out on strike but then decide to come back to work? A. If you are in the union and go out on strike and then decide to come back to work you can be fined by the union.... Similarly, in the final speech, of five pages in length, delioered in the 25th hour before the election, Lemon told the employees: You all know that the Nursing Home doesn't want the union. We don't think it can help you and the Company, brother Bill and I, and Mr. Snead, are not going to have the union telling us how to run this Nursing Home. If the union is voted in here, as I have said, the Nursing Home must bargain in good faith about your wages, hours and working conditions. But the union also has to bargain with the Nursing Home. We can ask for things in a contract which the union and you, our employees, might not like. There will be a lot of things we will want spelled out in writing if we can't deal directly with you as individuals. If the union is voted in, it will find my brother and me very tough to deal with across the bargaining table. We are not going to roll over and play dead for the union. Under the law, we don't have to agree to what the union asks for. We are willing to take a strike if we have to. I just hope that those few of you who are supporting the union are also willing to strike if the union can't otherwise get you what it promised you or what you think you should have. It would be a shame for the employees to be stuck with something they re- ally don't want. The possibility and effects of a strike were not the only topics in Lemon's speeches, of course. He also discussed the procedures in a Board conducted election, the alleged loss of personal control attendant upon union membership, the Union's involvement in unfair labor practices, the dis- charge of an employee for allegedly coercing others to sup- port the Union, and the newness of Liberty House. In the final speech, employees who had told the employer of their support for the nursing home were praised for their loyalty. The guidelines for consideration of campaign propa- ganda such as the foregoing were set forth by the Board in W. A. Krueger ('o., 224 NLRB 1066, 1069 (1976): In assessing the reasonable impact of the foregoing statements, we are mindful of the Employer's right to discuss freely and frankly its views concerning unions, strikes, collective bargaining, plant closure, and any other topics it considers important. But it is equally clear that employees have the statutory right to associ- ate freely and to express their desires in an atmosphere free from fear and futility. It is the Board's duty to balance these rights and to provide the laboratory conditions, as nearly ideal as possible, to determine the uninhibited desires of employees. In this regard it is important to take into account the economic depen- dence of employees on their employer "and the neces- sary tendency of the former, because of that relation- ship, to pick up intended implications of the latter that might be more readily dismissed by a more disinterest- ed ear." N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575, 617 (1969). And the Board has held that when an employer leads its employees to believe that their choice is between no union or striking or otherwise gives them the implied message that selection of a union representative will be a futile act it interferes with the employees statutory rights, in violation of Section 8(a)(1) of the Act, and interferes with the exer- cise of a free choice in the electoral process. See Marathon Le Tourneau Company, etc., 208 NLRB 213, 218 (1974) (the conduct of Barrera); Amerace Corporation., ESNA Div., 217 NLRB 850 (1975); W. A. Krueger, supra; Boaz Spin- ning Company, Inc., 177 NLRB 788 (1969). In each of those cases, however, the employers coupled their repetition of the strike theme with vivid pictures of strike violence and dissension and thinly veiled threats of bad faith bargaining and plant closure leading to the loss of jobs and income. Lemon's speeches, while less than fully accurate in terms of the legal effect of unionization upon accrued benefits, did not reach those depths. While he may have hinted that a strike was likely, his statements regard- ing the employer's bargaining position were not such as to create an impression that the employer would cause a strike by bad faith bargaining. Neither did he, at any time, imply any threats to close the facility or to cause any loss of jobs other than through an employer's right to replace economic strikers. I therefore conclude that Lemon's speeches were privileged expressions of opinion under Sec- tion 8(c) of the Act and did not unlawfully pose to the employees a choice solely between no-union and striking or otherwise tend to create the impression that selection of a collective-bargaining representative would be a futile act. See R. & R. Processors, Inc., 217 NLRB 562 (1975); Oxford Pickles, etc., 190 NLRB 109 (1971). Accordingly, I shall recommend that this allegation of an 8(a)(l) violation be dismissed. B. Alleged Interrogation and Threat by Noftsinger General Counsel's contention that Edna Noftsinger in- terrogated employees concerning their union activity and threatened them with the elimination of privileges if the Union became bargaining representatives rests upon the testimony of Mildred Willis. According to Willis, a nurses aide, she had several conversations with Executive House- keeper Noftsinger wherein Noftsinger asked her such ques- tions as whether she had attended union meetings, what went on at such meetings, and who else attended. Willis claimed to have acknowledged her own attendance but told Noftsinger that she had no right to ask about such matters. Willis further testified that she once asked Noft- singer whether Noftsinger had told other employees that [under a union] "if they didn't have a babysitter [and] couldn't come in to work, (that] it would be an inexcusable absence." Willis testified that Noftsinger admitted that she 460 LIBERTY HOUSE NURSING HOME had said that and that she had been so told. Noftsinger denied questioning Willis or other employees about their union activities and denied engaging in any conversation with Willis about the Employer's policy for excusing employees with babysitting problems. She testi- fied that employees, including Willis, frequently and freely gathered in her office to eat lunch and openly discussed various matters, including their union activities, in her presence. Both Willis and Noftsinger appeared to be fully credible witnesses. Both had earlier ceased their employment at Liberty House and had little personal interest in the out- come of this litigation. I was, however, favorably impressed that Noftsinger made a special effort to come forward to testify, with substantial physical discomfort, while recuper- ating from a life threatening illness. All other factors being equal, and there being no other evidence corroborating Willis' testimony or establishing a pattern of interrogation or threats, I find that this effort, bespeaking sincerity, war- rants that I credit her testimony. Accordingly, I find that General Counsel has not estab- lished, by a preponderance of the evidence, that Edna Noftsinger interrogated or threatened employees in viola- tion of Section 8(a)(l) of the Act. C. Change in Respondent's Bulletin Board Policr Respondent maintains a bulletin board for the posting of various notices by both management and employees. Prior to April 8, employees had posted notices dealing with the sale of automobiles, solicitations for money to buy flowers, and thank you notes. On April 8, Respondent posted the following: TO ALL EMPLOYEES So that there will be no misunderstanding, the fol- lowing rules will be effective right away. I. Employees are prohibited from soliciting mone., membership or affiliation with unions, clubs or other organizations during time when they are supposed to be working. This rule includes solicitation for flowers for sick employees. 2. Employees may solicit for the above things be- fore work, after work, during meal periods and break periods. 3. Literature cannot be distributed in working areas at anytime. Literature ma} be distributed in non-work- ing areas such as the employee dining room. * * * 5. Unauthorized notices are not allowed on the bul- letin board. 6. Employees who violate the above rules will be subject to discipline, including discharge. According to William Snead, the administrator, this no- tice was posted because management was afraid that mate- rial derogatory to the nursing home might be placed upon the bulletin board. No attempts had been made to post such material; Snead's fear was derived from things he had read in newspapers. No employees sought permission to post material on the bulletin board subsequent to this no- tice; thus, none were denied that permission. However, af- ter April 8, Respondent posted some antiunion literature on the bulletin board, particularly dealing with the Union's involvement in strikes. General Counsel contended that by limiting the employ- ees' access to the use of the bulletin board, Respondent interfered with its employees statutory rights, in violation of Section 8(a)( 1) of the Act. I agree. Respondent's reason for requiring authorization prior to posting any material upon the bulletin board was based upon an entirely specu- lative and remote fear that material, which it might deem derogatory, would be posted. Neither the Union nor the employees had given any reason for such a fear. Moreover, as the Board has recently stated: Respondent cannot lawfully require an employee to secure permission as a precondition to engage, without fear of management interference or retaliation, in pro- tected activities .... AMC Air Conditioning Co., 232 NLRB 283 (1977); Fasco Industries, Inc., 173 NLRB 522, 524 (1968). Moreover, I find it of no consequence that no employees sought and were denied authorization to post protected literature upon the bulletin board. Few employees will seek their employ- er's permission to engage in union activities and thus ex- pose themselves to possible enmity and retaliation. Camp- bell Soup Company. 225 NLRB 222 (1976). D. The Withholding of WaJge Increases and Vacations The personnel policies of Liberty House, established and announced to its employees when it opened in May 1976. provided that full-time employees would be eligible for a period of paid vacation after one year of continuous em- plosment. It further provided that employees would "be evaluated after 90 days and on their anniversary date thereafter." Pay increases, it stated, were not automatic but were contingent upon the results of those evaluations and the employees' efforts and progress. Ralph Lemon ac- knowledged that it was Respondent's practice to give a wage increase if an employee was rated as satisfactory. Most employees would receive a 10-cent-per-hour in- crease: exceptional employees might receive 15 cents. On May 20, following the election held on May 13, Re- spondent posted the following notice: Local 675 United Paperworkers International Union has filed objections with the National Labor Relations Board to the election held last week. It is hoped the NLRB will act upon these objections in the near fu- ture. Until the results of the election are officially cer- tified we are forced to hold the status quo as regards employee benefits. Eimployees Mildred Willis and Joyce Potter saw the no- tice and asked Snead for an explanation. They were told that they would have to ask their Mr. Smith (Robert Smith, the union representative) about it. They were further told that the status quo would have to be maintained and that thev would not receive any further benefits until the objec- tions were cleared up. Respondent held up on its evaluations, wage increases 461 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and vacations until July. As it did not appear that the ob- jections would be speedily resolved, it then granted vaca- tions and commenced the evaluations, granting wage in- creases retroactively. It is well settled that the withholding of employee wage increases and other accrued benefits because the employ- ees had engaged in union activities, and so advising the employees, is violative of the Act. The applicable test for both the granting and the withholding of such benefits is whether they would have been granted or withheld in the absence of any union activity. Wells Fargo Alarm Services. 224 NLRB 1111 (1976). Moreover, an employer's errone- ous belief that the pendency of a representation proceeding precluded it from granting such accrued benefits does not excuse its conduct in withholding them. Dorn's Transporta- tion Comrpany, Inc., 168 NLRB 457 (1967). Applying these standards to the instant case, I must con- clude that Respondent has further violated Section 8(a)( I ) of the Act by withholding accrued vacations, employee evaluations, and the resulting wage increases because the Union had filed objections to the election, and by so advis- ing the employees. While the wage increases were depen- dent upon satisfactory evaluations, they were essentially automatic. All employees received identical increases un- less they were either exceptional or unsatisfactory. And, see American (Commercial Bank, 226 NLRB 1130, 1132 (1976), in regard to Respondent's placing of the onus for Respondent's failure to grant or consider wage increases to the Union. In that case, the Board held that "such a state- ment, whether considered as a clear threat that union activ- ities could result in economic loss or as interference with employee rights guaranteed under Section 7, was violative of Section 8(a)( ) of the Act." E. Additional 8(a)(1) Allegation In the course of the hearing, it came to light that Re- spondent had asked employees to sign affidavits attesting to its version of Lemon's speeches. While this matter was not alleged in the complaint, General Counsel contended that it had been fully and fairly litigated and should be found to be the basis for additional unfair labor practice findings. It was further alleged that the signing of these affidavits was somehow connected to the granting of the retroactive wage increases. Contrary to General Counsel, . do not find this matter to have been fully litigated. Further, I find the record insufficient to support a conclusion either that the granting of wage increases was contingent upon employee cooperation in the signing of these affidavits or that the circumstances of that signing was such as to vio- late Section 8(a)(l) of the Act. V CASF 5 RC 10021 CONDUCT AFFECTING RESU'LTS OF ELECTION As previously noted, certain Union filed objections to the conduct of the election in Case 5-RC-10021 parallel the unfair labor practice allegations. Specifically, Objection I dealt with the threats attributed to Ralph Lemon in the course of his speeches to employees, Objection 4 repeated the allegation relating to the change in bulletin board prac- tices, and Objection 7 concerned the interrogation and threat attributed to Edna Noftsinger. As I have found that Noftsinger did not engage in the unlawful conduct atrributed to her, and that Lemon did not threaten a change in Respondent's absenteeism policy as applied to parents with child-care problems, I recom- mend that Objection 7 and that portion of Objection I relating to Lemon's alleged threat of such a change be overruled. I have further found that Lemon's speeches constituted privileged expressions of free speech, pursuant to Section 8(c) of the Act, and were not impermissible attempts to persuade employees that they would necessarily have to strike in order to secure benefits at the bargaining table or that the selection of a bargaining representative would be a futile act. I therefore recommend that the remainder of Objection I be overruled. However, Respondent's change in the bulletin board practice unlawfully restrained employees in the exercise of protected rights, in violation of Section 8(a)(l). It follows that such conduct also interfered with the exercise of a free and untrammeled choice in the election held in Case 5- RC-10021 on May 13, 1977. University of the Pacific, 206 NLRB 606 (1973). Accordingly, I recommend that that election be set aside and a rerun election conducted. Vl THE REMEDY It having been found that Respondent Liberty House has engaged in unfair labor practices in violation of Sec- tion 8(a)(l) of the Act, it will be recommended that Re- spondent be required to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. CONCLUSIONS OF LAW 1. By prohibiting its employees from posting literature on the bulletin board without prior authorization from management, by withholding evaluations, wage increases, and vacation benefits because the employees had engaged in union activities and so informing the employees, and by placing the onus for the withheld benefits to the Union, Respondent has violated Section 8(a)(l) of the Act. 2. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 3. By the conduct described in Objection 4, Respondent Liberty House has interfered with the exercise of a free and untrammeled choice in the election in Case 5-RC-10021, held on May 13, 1977. 4. Objections I and 7 are without merit and are over- ruled. 5. Respondent Liberty House has not engaged in any unfair labor practices not specifically found herein. 6. Respondent Union has not engaged in any unfair la- bor practice as alleged in the complaint. Upon the basis of the foregoing findings of fact, conclu- sions of law, and the entire record in this proceeding, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 462 LIBERTY HOUSE NURSING HOME ORDER 4 The Respondent, Liberty Nursing Homes, Inc.. d/b/a Liberty House Nursing Home, Clifton Forge, Virginia. its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Prohibiting its employees from posting literature on the bulletin board without prior authorization from man- agement. (b) Withholding evaulations, wage increases, and vaca- tion benefits because of the emlpoyees' union activities and so informing the employees or placing the onus for the withheld benefits to the Union. (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Post at its nursing home in Clifton Forge, Virginia. copies of the attached notice marked "Appendix." 5 Copies of said notice on forms provided by the Regional Director for Region 5, after being duly signed by Respondent's au- thorized representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, including all places where notices to employees are customarily post- ed. Reasonable steps shall be taken by Respondent to en- sure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 5, in writ- ing, within 20 days from the date of the Order, what steps Respondent has taken to comply herewith. IT IS FURTHER recommended that the allegations of un- lawful conduct in Case 5-CB-2275, and those allegations of unlawful conduct in Case 5-CA-8719 not specifically found herein, be dismissed. IT IS ALSO RECOMMENDED that Objection 4 be sustained, that the election conducted in Case 5-RC-10021 on May 4 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. 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 be Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 13, 1977, be set aside and a rerun election conducted at an appropriate time to be fixed by the Regional Director, and that all remaining objections be overruled. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Act give employees the following rights: To engage in self-organization To form, join, or assist any union To bargain collectively through representatives of their own choosing To engage in activities together for the purpose of collective bargaining or other mutual aid or protec- tion To refrain from the exercise of any such activities. In recognition of these rights, we hereby notify our employees that: WE WILL NOT require our employees to secure ap- proval of management before posting materials, deal- ing with their union or protected concerted activities, on the bulletin board. WE WILL NOT withhold evaluations, wage increases, or vacation benefits from the employees because of their union activities and WE WILL NOT blame the United Paperworkers International Union, AFL CIO-CLC, or any other union for the withholding of such benefits, or tell employees that such benefits were withheld because of their union activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights under the National Labor Relations Act. LIBERTY NLRSING HOMES. INC d/b/a I.IERTn HOUSE NURSINc, HOME 463