Riviera Manor Nursing Home, Inc.

806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Riviera Manor Nursing Home, Inc. and Council 19, American Federation of State, County, and Munici- pal Employees, AFL-CIO. Cases 13-CA-8979 and 13-RC-11744 November 25, 1970 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS BROWN AND JENKINS On April 23, 1970, Trial Examiner John M. Dyer issued his Decision in the above-entitled consolidated proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. He further found that Respondent had not engaged in certain other unfair labor practices as alleged in the consolidated complaint. Thereafter, Respondent filed exceptions and a brief in support thereof, to the Decision. The General Counsel filed timely cross-exceptions and answer to Respondent's exceptions, with a supporting brief.' Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, cross-excep- tions, answer, and briefs, and the entire record in this cases, and hereby adopts the findings,2 conclusions, and recommendations of the Trial Examiner. The Trial Examiner found that among the benefits promised to employees by Respondent, in violation of Section 8(a)(1) of the Act, was a promise of 2-week paid vacations. This finding was inadvertently not included in the Recommended Order and Notice. We shall modify the Recommended Order and Notice to reflect this finding. We shall also modify the Recom- mended Order and Notice to include an order that Respondent refrain from conduct similar to that found herein. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommend- ed Order of the Trial Examiner, and hereby orders that Respondent, Riviera Manor Nursing Home, Inc., Chicago, Illinois, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as modified herein- after: 1. Modify paragraph I(e) of the Recommended Order to read as follows: "(e) Promising its employees wage, insurance, and vacation and holiday benefits if they did not select the Union as their collective-bargaining representative." 2. Add the following as paragraph 1(h) of the Recommended Order: "(h) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form labor organizations, to join or assist Council 19, American Federation of State, County, and Municipal Employ- ees, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of mutual aid or protection as guaranteed in Section 7 of the Act, and to refrain from any and all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a)(3) of the Act, as modified by the Labor-Management Report- ing and Disclosure Act of 1959." 3. Modify the fifth indented paragraph of the Notice to read as follows: WE WILL NOT promise wage, insurance, and vacation and holiday benefits to our employees if they do not select the Union as their collective- bargaining representative. 4. Add the following as the last indented para- graph of the Notice: WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist Council 19, American Federation of State, County and Municipal Employees, AFL-CIO, or any other labor organization, to bargain collectively through I No exceptions have been taken to the Trial Examiner's findings and conclusions that Respondent did not violate Section 8(a)(3), as alleged in the consolidated complaint, when it discharged employees Sullivan, Scarbrough, and Chatman. 2 General Counsel urges in its cross-exceptions that the Trial Examiner erred by his failure to make a finding concerning alleged unlawful interrogation by Respondent's assistant administrator. We find it unnecessary to pass upon this issue since a finding of unlawful interrogation , if made, would be merely cumulative in view of our Decision. Respondent has excepted to certain credibility findings made by the Trial Examiner. It is the Board's established policy not to overrule a Trial Examiner's resolutions with respect to credibility unless the clear preponderance of all the relevant evidence convinces us that the resolutions were incorrect . Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3). We find no such basis for disturbing the Trial Examiner's credibility findings in these cases. 186 NLRB No. 113 RIVIERA MANOR NURSING HOME, INC. 807 representatives of their choosing , and to engage in concerted activities for the purpose of mutual aid or protection as guaranteed in Section 7 of the Act, and to refrain from any and all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JOHN M. DYER, Trial Examiner: On March 25, 1969,' Council 19, American Federation of State, County, and Municipal Employees, AFL-CIO, herein called the Union, filed the charge in this matter alleging that Riviera Manor Nursing Home, Inc., herein variously called Respondent, the Company, the Home, or Riviera, violated Section 8(a)(1), (3), and (5) of the Act. The charge was amended on July 28, 1969, to include an additional allegation of an 8(a)(3) violation, and the Regional Director issued a nine- page complaint on July 31, 1969, alleging violations of Section 8(a)(1), (3), and (5). On January 9, the Union filed the petition in Case 13-RC-11744 seeking an election at Riviera, and on January 24, the Regional Director approved a Consent Election Agreement setting the election for February 20. On February 7, the Regional Director issued an Order Withdrawing Approval of the Agreement for Consent Election and setting a Representation Hearing for February 20, based on the intervention of Local No. 4, Service Employees International Union, AFL-CIO. On February 20, another Agreement for Consent Election was signed by the three parties and approved by the Regional Director setting the election for March 20, in a unit of: All nurses aides, licensed practical nurses, dietary and housekeeping employees employed by the Employer at its Nursing Home located at 490 West 16th Place, Chicago Heights, Illinois, but excluding office clerical employees, professional employees, registered nurses, doctors, supervisors and guards as defined in the Act. At the election held March 20, 13 votes were cast for the Union, 17 against, 2 were challenged, and none were cast for the Intervenor. On March 25, the Union filed timely objections to conduct affecting the result of the election which, inter alia, alleged intimidation and coercion of the employees by Respondent's threats, promises, interroga- tions, and discharge of several employees. On August 4, 1969, the Regional Director issued his Report on Objec- tions and Order Consolidating Cases, ordering that, since certain objection allegations were substantially similar to the allegations set forth in the complaint, it was appropriate to consolidate the matters, and that the Trial Examiner should prepare and cause to be served a report containing resolutions of credibility regarding the witnesses and make findings of fact and recommendations to the Director concerning Case 13-RC-11744. An answer was filed for Respondent by counsel who did not represent Respondent thereafter during this proceeding in this matter. This Answer was further amended at the hearing. Following the receipt of the original Answer, General Counsel on August 29, 1969, moved to strike portions of Respondent's Answer or in the alternative require Respondent to clarify its Answer. On September 19, 1969, Trial Examiner Charles W. Schneider issued his order on General Counsel's motion denying General Counsel's motion but stating that the allegations of paragraphs II(d), III, and X and the first allegation in paragraph XI of the complaint would be deemed admitted by the Respondent and found to be true, stating that no further proof of such facts was required and that contravention thereof was precluded. Respondent had admitted various facts regarding commerce and with Trial Examiner Schneider's Order it was deemed admitted and true that Respondent at all material times was an employer engaged in commerce within the meaning of the Act. Further from this Order it is found to be true and admitted that the Union had requested Respondent to recognize it and bargain collec- tively with it on or about January 9, and that Respondent had refused to do so on and after that date. Additionally Respondent stipulated that the Union was a labor organization within the meaning of the Act, admitted that it discharged Mary Sullivan on or about February 28 and Mary Scarbrough on March 17, but denied that it had discharged Mary Harrison 2 or Rose Chatman as alleged in the complaint. The parties stipulated that Respondent did grant a number of wage increases to employees within a month after the election, during the period that the Objections to the Election were pending. About that same time following the election, Respondent granted other employee benefits including certain paid holidays and an insurance program. At the hearing held in Chicago, Illinois, on October 7 through 10 and 20 through 23 and November 3 and 4, all parties were afforded full opportunity to appear, to examine and cross-examine witnesses, and to argue orally. General Counsel and Respondent have filed briefs which have been carefully considered. This case contains great amounts of flatly contrary testimony. Much of the testimony seems to be a collective memory of what the witnesses would like to believe happened. A great deal of the testimony conflicts with testimony of other witnesses or with business records or with testimony of witnesses who seemingly are disinterested in the proceeding. Some of the testimony seems to be a matter of simple carelessness with the truth. I have tried to reconcile the testimony where that is possible but what follows hereafter, where there are conflicts, is my best judgment of what happened, given the individuals involved, the circumstances at the particular time, and the inherent i The main events herein took place during the late fall of 1968 and the from Respondent's employ was adduced Respondent's oral unopposed early part of 1969 and unless specifically stated otherwise all dates refer to motion to dismiss the 8(a)(3) allegation relating to her was granted by me that period at the hearing 2 When Mary Harrison testified, no evidence concerning her departure 808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD plausibilities of the situations . In making these resolutions I have discredited at times testimony produced both by the General Counsel and by the Respondent. On the entire record in this case , including my evaluation of the reliability of the witnesses based on the evidence received and my observation of their demeanor, and, as noted above, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT AND THE LABOR ORGANIZATION INVOLVED Respondent is an Illinois corporation maintaining its place of business in Chicago Heights, Illinois, where it is engaged in the operation of a private nursing home . During the past year Respondent's gross revenues exceeded $200,000, of which a substantial portion was reimburse- ments under the Federal Medicare Plan, and during the same period it received drugs and supplies which originated from outside the State of Illinois, valued in excess of $10,000. I find that Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Respondent admits and I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. THE UNFAIR LABOR PRACTICES A. Background and Undisputed Facts Prior to the opening of Riviera, Gus Potekin, its president, was associated with other members of his family in a nursing home in Chicago , called the Fountainbleu. Employed there as an assistant administrator was Herman Frey, who, when Riviera was opened, came with Gus Potekin to Riviera in the same capacity. Olga Brown was employed as a licensed practical nurse at Fountainbleu, and sometime after the opening of Riviera moved there in the same position. Riviera opened in the late winter of 1967 with two patients. The building is basically a one-story structure with a partial basement. On the main or upper level which stretches east to west are 40 rooms for patients, most of them being double or quadruple bedrooms . The main entrance is in the center of the building on the north side and flanking it leading to the main corridor are a patients' TV room and a consultation room. Opposite the entrance hall in the main corridor is the patients' dining room. Basically the building is split into two sections, designated stations I and 2, with one station being designated for extended care, under the Medicare program, while the other is given over to State-supported patients and private- care patients. In the basement of the building is located the main office, the laundry room, and the kitchen area, as well as an employees' lounge area. Gus Potekin is the president of Riviera and owns 75 percent of the stock . His brother Irving Potekin, who presently runs the Fountainbleu home , is the vice president of Riviera and owns 25 percent of the stock. Gus' wife, Sylvia Potekin, is the secretary of Riviera and serves as the "dietician."3 Herman Frey was listed in the complaint as the administrator of Riviera, but according to his testimony acts as the assistant administrator . There is no dispute that all four of these people are managerial and supervisory. There is a dispute between the parties regarding the supervisory status of licensed practical nurse (LPN) Olga Brown, Pearl Green, the cook, and the director of recreation, Betty Frey, who is the wife of Herman Frey. The question of the status of these three individuals will be considered infra in the section concerning the 8(a)(5) allegation. Although starting in January 1967, the Home actually opened for business around March and the number of patients increased until the Home was operating at near capacity levels . On a regular basis Riviera employs some 40 or so people in the unit, in addition to the clerical employees and the registered nurses . As a nursing facility a three-shift operation is maintained, with the shifts running from 7 a.m. until 3 : 30 p.m., 3 until 11:30 p.m. and 11 p.m. to 7 a.m. The first two shifts have a half-hour unpaid lunch period while the late shift does not have a specific lunch period. All the employees with some few exceptions are paid on an hourly basis . From its inception Respondent granted employees a 1-week vacation after 1 year of employment . When asked on occasions to provide a longer vacation for people who had worked longer than 1 year, Potekin had replied (apparently due to turnover) that it would never happen. The exceptions to the vacation period are the managerial personnel, including Herman Frey, and Betty Frey, who was allowed to take a vacation period (2 weeks) coincident with her husband and receive her full salary . Around October or November, one of the patients missed a dress and following a complaint to Riviera it was assumed that the dress had been stolen. Riviera attempted to secure the return of the dress, and when it was not forthcoming, Gus Potekin ordered that a sum of money, $2, be deducted from each of the employees who would have had access to the area where the dress was kept. Each of the nurses' aides, LPN's , cleaning personnel , and registered nurses had her pay reduced $2 for the pay period of November 20. Employees in the kitchen were not assessed since it was felt that they would not have had access to the clothing. Mary Scarbrough and some other employees sought advice concerning the deduction , and were eventu- ally referred to the Union. Scarbrough and Sullivan took union cards and, together with employee Julia Williams, distributed cards among the employees during December, receiving signed cards and forwarding them to the Union. In the interim Gus Potekin left for a vacation in California, where he stayed from early December until early February. On January 9, Neal Bratcher appeared at Respondent and met with Herman Frey in the office on the lower level. Bratcher gave Frey two letters , one addressed to Frey and the other to Potekin, and informed Frey that his Union represented a majority of the employees and that it wished Respondent to meet and bargain with it. Frey replied that he did not have authority to grant the request . After leaving the letters Bratcher left the premises, and that afternoon 3 Mrs. Potekin actually serves more as liaison between the Home and a professional dietician under contract to the Home to provide such services. RIVIERA MANOR NURSING HOME, INC. 809 appeared at the Chicago Regional Office of the Board and filed the petition herein. There is some disagreement as to how regularly Respondent held meetings with the employees. Potekin indicated that group meetings were held about once a month and that individual meetings were held with employees when there was some complaint about the employees' work. According to Gus Potekin, he established the monthly meetings at shift-overlap time in the afternoon to catch the majority of the employees. The purpose of the monthly meetings, again according to Potekin, was to confront the group at one time so that where there were problems concerning one shift complaining that it was doing the work of the other shift, they all could be informed about it at one time. The meetings were also set up as a defense to demands for wages and so that problems could be discussed at one time with everyone. Respondent stated they discussed the appearance of the employees, how they were doing their job, and eventually something concerning wages would be brought up. In these meetings Potekin's response to wage questions was that this was a new home and due to the lack of patients in the beginning, they had losses, but as the number of patients continued to increase and the condition of the patients improved, Respondent could generate more money to pass on to the girls. He told the employees repeatedly that if the patients' families found that the patients were kept neat, clean, and well-groomed he could ask the families for more funds and these funds could be shared with the girls. Potekin testified that prior to October 1968 he never made any definite promises of wage increases to the employees but would tell them that he would like to give them insurance benefits, increased vacations, holidays, and more pay, and would like to set goals in this area and get to the point where Respondent could provide uniforms for everyone. At one of the meetings he mentioned profit sharing as a possibility. According to Potekin, prior to October and November 1968 they were showing no profit but in October they were approaching a break-even point, so during the monthly October meeting he mentioned the possibility of increasing wages and fringe benefits at a later date. He told the employees that the insurance company with whom he dealt on the Medicare program had told him they would go along on certain expenses on a reimbursement basis but would not reimburse Riviera for an insurance program for employees. Since they now knew what reimbursements Medicare would and would not allow, he had an idea of where he was going and they were having a final audit made to see how much money they would have available and then determine what they could do with it. During this meeting employees asked for specifics and he told them he could not give them specifics because he did not know how much money would be available. He emphasized in his testimony that he gave no promises for any specific amounts. He concluded the discussion saying he would try to have the final information by the November monthly meeting. At the November meeting he told the employees he still had not heard from the auditor, and according to his testimony he was vague in telling the employees about wages and fringe benefits, but said he knew they were anxious about benefits, and promised he would do the best he possibly could for them, and when he returned from his trip to California would have an answer for them. In his testimony he reemphasized that he made no specific promises at these meetings but said he would get something going for the employees when he returned. B. The January 9 Meeting 1. Irving Potekin testified that on January 9, he went to Riviera to pick up some supplies around noontime and stayed there between an hour and an hour and a half, using most of that time in getting the supplies loaded in his car. He stated that when he arrived, Herman Frey told him of the Union's request for recognition that morning. After loading the car he and Frey had a cup of coffee in the consultation room on the main floor where he stayed for 15 to 30 minutes , by his estimate. During that period some of the employees entered the room and spoke with him on several subjects. The first question he remembers asked of him concerned the $2 deduction. After Frey explained the deduction to him, he said he could not return it. Irving Potekin acknowledged that while some six or eight girls were there he told them he understood they wanted a union and that there would be an election. When called by the General Counsel as a witness near the beginning of the hearing, Irving Potekin testified he arrived at Riviera before noon and stayed about an hour during which time he spoke to Frey and addressed an employee meeting held in the consultation room before noon. On a later appearance as a witness, he stated he arrived about noon and left after 2 p.m. On one occasion he stated they went in the consultation room possibly as late as 1:30 but later said it only took 20 minutes or so to load the supplies. Thereafter he said he did not speak to employees at a general meeting. Concerning this January 9 affair he said no meeting was called for that day but that employees wandered in and they spoke. Herman Frey testified that Irving Potekin arrived at Riviera around noon and they discussed Bratcher's visit, loaded Potekin's car with supplies, and between 12:45 and 1: 15 went in the consultation room for a cup of coffee, having sent downstairs for Gloria Brown to bring some coffee up to them. While talking, five or six girls walked in and he heard one ask about the $2 matter. He left the room for a salesman visitor and when he returned some 15 minutes later, Potekin was saying there would be an election and everything would be decided by his brother. Irving Potekin testified that he addressed a group of 6 to 10 employees for as long as 20 minutes but that it was not a called meeting . He stated that there might have been some union literature laying around. Potekin remembered questions about a suggestion box, the $2 affair, and some questions about pay rates at Fountainbleu. Otherwise he denied most of the statements attributed to him by the employees and that he had had any conferences with employees other than this one meeting. A large number of employees , some of them from the second and at least one from the third shift, testified about the meeting and conversations with Irving Potekin. The number of second-shift people who were present would 810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD demonstrate that the meeting lasted longer than Potekin or Frey indicated, since second-shift personnel who were due to clock in at 3 p.m. would not normally appear at Respondent until after 2 p.m. unless they were told to appear for a meeting. With that much established it is also probable that Irving Potekin spoke both to first- and second-shift employees either as one rambling meeting or as a series of short discussions. In any event I must discount the time estimates of Frey and Irving Potekin, and I do not credit Potekin's denial of all the statements attributed to him. In the position in which he found himself, with his brother on the West Coast for an extended visit, it was natural for him as a part owner to seek why Respondent's employees had authorized a union to bargain for them. The question then is whether his inquiries crossed the unfair labor practice barrier. Although differing versions are given by a number of employees and it appears that some of the testimony may relate to meetings with Gus Potekin rather than Irving Potekin, it is clear from the volume of congruent testimony that some particular remarks were made by Irving Potekin. The following is an account of the January 9 meeting from credited versions of a number of witnesses. Irving Potekin told a group of employees that he understood a union had made a demand for recognition and he wanted to find out what had caused it. He did not think they needed a union and could get along without one, that at the other home, the Fountainbleu in Chicago, they did not have a union and were one big happy family. One of the employees mentioned the $2 deduction from their pay. Irving asked Frey about it and Frey explained why the money had been deducted. One of the employees mentioned a suggestion box and Potekin said he did not see why they should not have one. He said his brother Gus was in California and that he was sure Gus would do right by them. Potekin said he knew that some of the girls had signed up for the Union but he did not know who, and that they really did not need a union. During the meeting there was a pamphlet from Local 4 on the table, and Potekin said that if the employees got a union, it would just be management and the Union meeting together and the Company could buy the Union off and the employees would not gain anything. One of the employees spoke up and said they were not interested in Local 4, but in another union. Some employees asked Irving Potekin about higher wages, insurance, and holidays. Potekin assured them that they would get more benefits without a union and that his brother would do properly by them. At one point, one employee asked whether getting the $2 back would satisfy the employees, and if so, to raise their hands. Potekin indicated the return of the money was possible. They did not raise their hands and the employee commented that apparently they wanted the Union. I do not credit other statements attributed supposedly at this meeting to Irving Potekin, but as mentioned above I do not credit his denials that he said nothing concerning the Union. Irving Potekin may incidentally have gone to Riviera to pick up some supplies, but essentially his visit on January 9 was to determine the cause of the union demand that morning and the leafletting by Local 4 which was going on around that time. He was there to determine if there was a tide of union sentiment and if so to try to stem it until his brother's return. I conclude and find that Respondent by Irving Potekin on January 9 violated Section 8(a)(1) of the Act by promising employee benefits if the employees did not vote for the Union and by warning employees that selecting the Union would be a futile gesture since Respondent could pay the Union off in private meetings. I further find that Irving Potekin either in a rambling meeting or series of short meetings did make remarks to certain employees which the employees referred to as private interviews, but I find that his remarks were all confined to his visit on January 9. 2. Mary Harrison testified that while present with Mrs. Fulwiley, a nurse's aide, Irving Potekin, Olga Brown, and Frey, Potekin said he knew there were girls who had signed for the Union, and though he did not know who, he wished they would sign against the Union because he did not want it. Fulwiley was not questioned concerning such a meeting, and Potekin, Olga Brown, and Frey deny such a meeting took place. I believe that Harrison's statement refers to a remark made during the general meeting referred to above. 3. Viewelta Smith testified that she and employee Beulah Dumas were summoned for a private meeting with Irving Potekin on January 9, and he asked why they wanted a union. They answered that they wanted better wages and working conditions and Potekin told them they should work together and they could get along without the Union. Dumas testified that the meeting with Irving Potekin took place a few days after the original meeting. She stated that in this meeting Irving Potekin asked her if she had signed a card for the Union or if she knew who had brought the cards in, but she did not answer. He then said she did not have to tell him about it, that he knew the girls really wanted the Union. Dumas did not mention that Smith was present. I believe that Smith and Dumas were referring to remarks they heard Irving Potekin make on January 9, that it was evident that some of the girls had signed cards for the Union and that he did not know who they were and he was against the Union. I do not credit that Potekin asked Dumas individually if she knew who brought the union cards in. In essence then I find that Irving Potekin violated Section 8(a)(1) of the Act as set forth above in section 1. C. Gus Potekin's February Meeting Although his testimony was confused as to the date he held a meeting of employees, at one point saying February 5 or 6, and on the second occasion saying he did not return from California until February 11, Gus Potekin admitted he held an employee meeting which lasted about 2-1/2 hours in early February and that 30 to 32 employees were present. He testified he opened the meeting by telling the employees there was going to be an election on whether they wished the Union to represent them or not. He said notices about the election would be posted and it would be a secret ballot election and no one would know how they voted since no one could go into the voting booth with them. He said their future depended on their making their own decisions and that the only time people made errors RIVIERA MANOR NURSING HOME, INC. 811 was when they jumped to conclusions , did not analyze the facts, and therefore did not know what they were doing. He added that if someone was trying to persuade a person to do something, that the person usually had a reason for trying to do so, and that he should take his time and make up his own mind. The employees then asked questions, one of the first being from Mrs. Chatman . She complained about the $2 deduction saying that he was treating them like children and asked what he intended to do about it . He replied that they were adults and that when the dress was returned, the money would be paid back to the employees . One of the employees asked if they didn't have an election and a union whether they would get their $2 back. He said that had nothing to do with the Union and was based solely on the dress' disappearance . Alice Shenarult asked what Riviera would do if the employees went on strike. He said they were not the type of persons to walk off and leave sick people there who could not be cared for . She asked how they could know he would keep his word . He said that if he deceived them in any way they could always get the Union to come back . She said no, that the Union could not come back right away, that it would take a year for them to come back and have an election . He asked how she knew that and she did not answer. Johnie Mae Haley asked if the Union was going to double their salary. He said no that it could not be doubled because if the Union won the election they would sit down and try to come to some agreement with them and the Union would not want to make an agreement that would close the Company down, that that would defeat the purpose of the Union, since a salary like that would be impossible to pay, but reasonable demands would be met. Carey Kennedy asked what would happen if she did not want to join the Union, whether she could keep on working and whether she would have to join the Union. He answered that if the Union won the election that everybody in the Home would have to become a union member, but that if the Union lost, then everybody in the Home would not have to belong. One of the employees asked how much the dues were and whether they were deducted from their salary. He said he did not have all the facts, that they should get more facts before they make their decision. Pearl Green wanted to know if the Union would find out how she voted or what would stop them from blowing up her house. He said he doubted that they would blow up her house and no one would know how she voted because it was a secret-ballot election . Mary Scarbrough asked if it were true that if the Union got in that no one would be fired. He said no that is not true, that the only thing the Union was trying to accomplish was to see that you get paid for the amount of time that you are working, not the amount of time that you are sitting down, and that the Union would not defend them if they were not doing their job or were neglecting or hurting the patients. Hattie Taylor asked how much it would cost to join the Union . He told her that was one of the things she would have to ask the union people . She asked what would happen if she refused to pay it . He told her he was pretty sure that if the Union won the election there would be some kind of system whereby they would be forced to deduct it from their salaries and the employees would have to agree to that. Concerning holidays he said that if the Company won he would give them as many paid holidays as he could possibly afford, that they already had a paid vacation, and that he was on the verge of letting go on the insurance program although he did not know what the details would be because they had not decided on the exact program. He said that there would be a salary increase but he had not decided what it would be because he still had not heard from his auditor. Gus Potekin insisted that he did not give any specific amounts, dates, or times to any questions. Ida Perkins asked how they could know he was telling the truth and whether he would give them those promises in writing. He said he could not give them anything in writing and that after talking to his attorney he was pretty sure it would be illegal or be misunderstood as a bribe. Perkins insisted that he give them promises of what he would do in writing and that she would not show it to anybody. The $2 item was discussed several other times during this meeting. He explained again that it was a secret -ballot election and that no one would know how they voted. He asked them not to get into discussions on the floor concerning the Union because such things would affect the patients, since some were senile and reacted badly to loud or angry voices, and that a doctor had told him he was dispensing increased quantities of tranquilizers . He warned that they could not afford to have their actions affecting the patients. When probed during cross-examination Potekin stated he did not set out what specific holidays would be granted, but admitted he might have said they would get a certain number of holidays now and a certain number later, since he could not give them all the holidays to begin with. Then he said he would probably give them half the holidays and as conditions improved, probably in the following year, he would give them the remainder of the holidays . Potekin further testified that he told the employees they could not lose because if the Union lost he would give them everything he had promised them , and if the Union won they would sit down with the Union and come to some understanding as to what they could afford and make a deal as to what they would pay. One of the employees said he had made a lot of promises in the past and did not keep a number of them . He replied that he had not made them any specific promises but had said only that he would do the best he could . She asked what he was going to promise them now and he said only what he had told them before. Concerning the matter of a wage increase he states he did not say exactly how much they would get but an employee asked him what was the going union rate and he answered that as far as he knew it was $1.30 an hour . One of the girls asked what would happen if they were making over $1.30. He said this would be subject to negotiations and he did not know what would happen, that whatever figure they arrived at with the Union would be what the price would be, but if they made a deal for $1 .30 an hour the only ones affected would be the girls who were making less than $1 .30 while the ones who made more would continue to get the same amount, but since they would have expenses such as union dues, they would take home less money than they were 812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD presently taking home so it would amount to a cut in pay for them. He said he had no idea how it would work out because he had no contact with the Union and no one who was dealing with a union knew how negotiations would finally come out. In concluding the meeting he urged them to be their own persons, to do their own thing, and let no one use them. Most of the employees who testified concerning the Gus Potekin meetings referred to just one meeting rather than a meeting in February and one in March . However there were certain points of agreement ; for instance , most of the employees referred to Ida Perkins asking Potekin to put his promises in writing and Potekin refusing, saying that it would incriminate him. They also referred to Potekin saying that he would give them holidays, an insurance program, and a 15-cent raise if the Union did not come in. Potekin may not have expressly promised them a 15-cent raise but I am sure from the way the figure was used by the witnesses, that Potekin at least said he would give them a wage increase that might amount to 15 cents. In any event it is clear from Potekin's testimony, as well as from General Counsel 's testimony, that Potekin promised the employees that if the Union did not come in, he would give them at least half of the regular holidays, that they would have an insurance program, and that they would get a 15-cent-per-hour raise . These promises of his were much more specific than the previous vague statements he had made in the October and November meetings, wherein he said he would do the best he could for them. At the same time he was deprecating the Union to the extent that he was telling the employees that the going union rate was $1.30 per hour, and that if they agreed on that figure the employees presently earning $1 .30 per hour would get no more than that and would wind up with less take home pay after dues deductions. Potekin's acknowl- edgement of Perkin's requests for written promises could only have reference to more definite statements than he had previously made . She could only have referred to holidays, etc., not to vague promises to "do the best I can." I therefore conclude and find that in this February meeting, Gus Potekin made promises of definite improve- ments to the employees in the matter of paid holidays, insurance benefits, and wage increases , if the employees did not select the Union as their bargaining agent , and that these promises are violative of Section 8(a)(1) of the Act since they were intended to discourage the employees from participating in and supporting the Union. D. The March Meeting Gus Potekin held a 10- to 15-minute meeting with employees on March 6, around 3 p.m. in the dining room. During this meeting Chatman brought up the question of the $2 deduction and Potekin responded that the only way the employees could get their money back would be if the dress were returned . Potekin urged them to vote in the coming election, repeated his statement about making their own decisions, and urged them to get all the facts so they would know what they were doing. He cautioned them not to bicker on the floor because it was upsetting the patients, but to keep things calm and everything would be all right. He testified that in this meeting as well as in the February meeting, he said he did not know what the amount of the increases would be for salaries and benefits , that it was all subject to the audit as to how well the Company was doing and he did not have an answer on that yet , but said he would keep his promises. Inasmuch as during the March meeting Potekin again stated that he would keep his promises regarding the increases, and since I found that he did make particular promises on these matters , this reiteration is a further promise of benefit violative of Section 8(a)(1) as above, and further it was calculated to influence the employees to vote against the Union and was an attempt to undermine the Union's status of majority representative in the context of the upcoming union election. E. Gus Potekin's Private Meetings with Employees 1. Charlotte Bigham testified that when she was called to the consultation room on the first floor to see Gus Potekin, he talked about her job, whether she liked it, where she was from , etc., before speaking to her about the Union. On that topic, he discussed the disadvantages of a union saying that if Riviera had the Union it would be bad because money for dues would be taken from the girls' paychecks, but if the Union were kept out he could give the girls raises whenever he wished . He said some girls received more than others because they knew their jobs better or were doing different jobs and he could pay them accordingly. He asked whether other employees had been talking about the Union . She replied that she did not know anything about it, that she did not pay any attention to the others. Potekin asked what she knew about Mary Scarbrough being fired . She replied that she had heard a little bit about her being caught sleeping or something. Potekin said he had fired her because he caught her sleeping and it was not the first time. He asked who was working on her station and she said Johnie Haley and Alice Shenarult . Potekin said he did not want to talk with them because they were for the Union and were troublemakers, and asked who was working at the other station . She named some individuals and he told her to have Edith Kopenheim- er come see him. Bigham was in the office 1-1/2 to 2 hours during which time the conversation covered topics from how she was making out at work and her abilities to the fact that she wanted to get into nursing work and thought of going to nursing school. Gus Potekin testified that he had no recollection of any meeting with Charlotte Bigham and denied telling her that if the Union came in she would get no raise. In assessing credibility here, I note first that Potekin did not deny the conversation with Charlotte Bigham but merely said he did not recall such a meeting. Next he was asked to deny and denied a statement that Bigham did not attribute to Potekin . She testified Potekin said employees would get raises and he could grant them if the Union did not come in, while Potekin's denial was of saying no raises if the Union came in. This is a denial that skirts the issue but does not meet it . Charlotte Bigham impressed me that she was telling the truth in relating this incident and her demeanor and forthrightness both on direct and cross- examination favorably impressed me. On the other hand RIVIERA MANOR NURSING HOME, INC. 813 Potekin did not meet the issue here and he was prone to understate or overstate his testimony to put it in the most favorable light. As an example, he testified that on another occasion he had let an employee go because of a wage- deduction order. Subsequent testimony disclosed that the other person had left for another reason and that there had been no wage-deduction order against her. I conclude and find that Gus Potekin violated Section 8(a)(1) of the Act in his conversation with Charlotte Bigham by : (a) promising wage increases if the employees did not select the Union as their bargaining agent; (b) questioning her as to what other employees were saying about the Union; and (c) indicating he knew the pro-union sentiments of some employees , calling them troublemakers and saying he did not wish to talk with them, thus demonstrating his antipathy toward the Union and union adherents, his knowledge of who were union adherents, and giving the impression that Respondent was surveying its employees' union activities. 2. Dorothy Nelson, a current employee of Respondent, testified that shortly prior to the election, Gus Potekin asked her to talk to him in the consultation room just after she finished work. Potekin told her he heard she was going to vote for the Union and she answered yes. He said he was going to give the employees a 15-cent raise whether the Union got in or not, as well as giving them insurance, and for her to give this message to her sister-in-law Mary Nelson. He also told her he would know if she voted for the Union or not and if the Union got in and the employees went on strike he would tell the judge that the people in the Home were sick and the judge would throw the employees out. Gus Potekin testified he recalled talking privately in March with Dorothy Nelson only on the morning of the election when she passed by him in the doorway and said good luck and he answered thank you very much and do not forget to vote and she said she would be sure to do it. He denied saying he had ever told her he would give her a 15-cent raise and insurance whether the Union got in or not and stated that the only thing he might have said in private was that he would do what he had promised to do, that is, do what he could afford to do for them. Gus Potekin said the purpose of private meetings with employees in the consultation room was to discuss employee shortcomings and that in all the meetings he had with employees he tried to avoid specifics and tried to brush off employees' inquiries in regard to wages and other matters. I credit Dorothy Nelson's version of this incident. She is still employed by Respondent and her testimony including her demeanor indicated to me that she was attempting to truthfully tell what had happened. I therefore conclude that Gus Potekin did ask if she was going to vote for the Union, said he was going to grant a 15-cent raise and insurance benefits whether the Union came in or not, and told her to pass this message on to her sister-in-law. By making these statements and the statements that he would know how she voted in the election and that strikers would lose their jobs, Potekin violated Section 8(a)(1) of the Act. 3. Julia Williams testified that about 3 days before the election she was called to talk with Gus Potekin in the consultation room . Gus said he heard the girls had signed cards for the Union but if the Union did not win the election he would give them whatever the Union said it would give them, including paid holidays, insurance, and a raise. During cross-examination she elaborated on this testimony a bit, stating that Potekin said he heard she had signed a union card and asked if she knew anything about a union. She said she did because she had previously belonged to Local 4. He said that he could not tell her how to vote but if the Union did not come in he would give them paid holidays, a raise, and insurance. In partial confirmation of her testimony , Gus Potekin stated he had a private meeting with Julia Williams in March with Olga Brown present . They talked about her previous employment in another nursing home where he knew some of the people. Potekin indicated that she had come by the consultation room to ask for time off and that he had not called her in. He did say he asked if she had signed a union card and she said no. He denied saying that if the Union did not get in he would give her what the Union said it would get for her in the way of raises and insurance. I do not credit Gus Potekin 's denials in this instance because what he is denying is in essence what he testified he said to the employees in the general meetings ; that is, that the employees would prosper either from what he gave them or from what they were able to get from negotiations with the Union. I conclude and find that his inquiry of Williams as to whether she signed a union card was unlawful interrogation, and his promises of benefits if the employees did not select the Union as their bargaining agent are violative of Section 8(a)(1) of the Act. 4. Mary Sullivan, one of the alleged 8(a)(3)'s, testified that in February she saw Gus Potekin downstairs in the office with Mr. Frey and to Potekin's inquiry of how they were coming along with the Union she replied she guessed it was all right. Potekin stated he talked to Mary Sullivan privately in the consultation room in February and did not recall Frey being present at this warning meeting. He said he was getting some scuttlebutt about employees smoking and knew that she smoked and was warning her about smoking on the floor. He stated he did not ask her how the Union was coming. It is not clear whether these two people are talking about two different meetings or a single meeting . In any event there is a denial from Potekin that he inquired about how the Union was coming. Elsewhere Potekin testified he had no idea Sullivan was in any way connected with the Union when she was fired. I believe that this testimony was offered by General Counsel to establish that Respondent knew of Sullivan's union activities prior to her discharge . However, in assessing credibility as between these two individuals there is a grave problem since, similar to Potekin, I found that Sullivan exaggerated and distorted facts in her testimony and was not a truthful witness . In this instance I find there is no preponderance of the evidence that this event occurred and I will therefore dismiss the allegation referring to this incident. 5. Viewelta Smith testified that about 2 weeks before 814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the election she was sent to see Gus Potekin in the consultation room and this was the only conference she had with him in the room. After some conversation about how she liked the Home and her job, whether she had any problems, and how much she made, Potekin asked if she knew who the people were who were trying to bring the Union in. She said she did and Potekin asked if she had signed a union card and then said he did not want to know but asked how she was going to vote. She said she had made up her mind but would rather not say. She confirmed this testimony on cross-examination stating again that Potekin after asking if she had signed a union card told her he did not want to know. Gus Potekin testified he had a meeting with Viewelta Smith in March in which he warned her he was getting a number of complaints from supervisory personnel that she was sassy to them and that her conduct was bad for the patients. He told her that if the patients' families saw her arguing with a supervisor and causing a commotion, they would wonder if the situation was worse when they were not there. He said that if the reports were true it had to be stopped immediately and she said they were not true. He said that during this meeting he did not ask if she was for the Union, nor how she was going to vote in the union election. It is difficult from these conflicting versions to say whether the two witnesses are talking about the same meeting. The other conferences noted supra lend credence to Viewelta Smith's version since this conference took place around the time that Gus Potekin was talking to other employees in the consultation room and discussing their union views and sympathies. I credit her version of the conversation, finding this to be one of a series of conversations in which Gus Potekin sought to determine union strength by interrogating employees and sought to undermine the Union's majority status by holding out promises of benefits if the Union were defeated, and the possibility that employee take-home pay would be lessened by no wage increases and union dues deductions if the Union was selected by the employees. I conclude and find that Gus Potekin violated Section 8(a)(1) of the Act when he questioned Viewelta Smith as to whether she knew the identity of the union proponents, whether she had signed a union card and how she was going to vote. It is no mitigation of the offense that after she told him she knew the identity of the union proponents, that he followed his question of whether she had signed a union card by saying he did not want to know. He contravened this by asking how she was going to vote. Her answer declining to tell him and her other responses were enough to inform him that she was prounion. His actions constituted unlawful interrogation and an invasion of her Section 7 rights. 6. Johnie Mae Haley testified that 2 or 3 days before the election she was sent to see Gus Potekin in the consultation room. Potekin said he heard she was for the Union and she said she was. He told her that if they did not vote for the Union he would give them a 2-week paid vacation, paid holidays, insurance, and a raise after the election. He asked if she knew why Mary Scarbrough had been fired. She replied no. Potekin said that he had caught her sleeping in room 114. She confirmed her testimony on cross-examina- tion. Gus Potekin said he did not remember talking to Johnie Mae Haley in the consultation room in March but said he never told her he had heard she was for the Union or that if there were no union she would get benefits like vacations, holidays, insurance, and a raise. I credit Johnie Haley's testimony, noting again that this was one of a series of meetings Gus Potekin held in the consultation room in an effort to undermine the union majority. I conclude and find that Gus Potekin violated Section 8(a)(1) of the Act by telling employee Johnie Mae Haley that he understood she was for the Union and promised her better vacation , insurance, paid holidays, and a wage raise if the Union were not selected by the employees. His initial statement was calculated to impress upon her that Respondent knew of its employees' union sentiments and activities, intimating that such activities were under surveillance, and the other statements were promises held out to sway her attachment to the Union and to undermine its majority status. 7. Among other things Rose Chatman testified that she had a conversation with Gus Potekin 2 to 3 weeks before the election in which Potekin said he understood she was strong for the Union and she denied it. She stated that in this conversation she complained of being treated like a child and that nothing was said about the wage-deduction orders against her. Potekin testified he had a conversation with Rose Chatman in March regarding her treatment of a patient, Mrs. Anderson. He admits that something was said about the Union but he was unsure of the statement ; however, he was sure he said nothing to the effect that he heard she was for the Union. I do not believe Rose Chatman's testimony concerning this event, finding that she distorted her testimony concerning other events and was not truthful in a number of instances. This testimony was apparently offered to attempt to establish that management felt she was prounion. I do not credit it and I will dismiss that portion of the complaint alleging this action as violative of Section 8(a)(1). 8. Alice Shenarult testified that in her March meeting in the consultation room Gus Potekin to her inquiry answered that he fired Mary Scarbrough for sleeping. Potekin said he did not see why they needed the Union, that they should be like one big happy family and if the Union did not come in he would give the employees paid holidays, a 15-cent raise, and insurance after the election. Potekin testified he did not have any conversation with Alice Shenarult in the consultation room in March and that he did not tell her that without a union she would get insurance benefits, wage increases, etc. Alice Shenarult's testimony appeared credible to me and conformed to the pattern which Potekin set in these private conversations. I conclude and find that Gus Potekin violated Section 8(a)(1) of the Act by promising employee benefits if the employees did not select the Union as their bargaining agent in his plan to undermine the Union's majority status. RIVIERA MANOR NURSING HOME, INC. 815 F. The Increased Postelection Benefits The parties stipulated that following the election Respondent instituted pay raises of approximately 15 cents per hour which were put into effect within I month of the election date. There was testimony that employees were given May 30 (the first holiday after the election) as a paid holiday with work performed on that day being compensat- ed by double pay. The parties also stipulated that the insurance program selected by Respondent was put into effect a short time after the election. All these improve- ments were made during the period in which the objections to the election were pending. This case resembles Sea Life, Incorporated, 175 NLRB No. 168, in that vague promises were made to employees that conditions would improve as Respondent's economic conditions became better, and when a union appeared on the scene, definite promises were made , and following an election which the Union lost, the increased economic benefits were granted. As the Board said in that case "The record shows that while the Respondent expressed a desire to consider new benefits before it learned that the Union was organizing its employees, definite plans were formulat- ed and implemented only thereafter. . . . Considering the vagueness of the Respondent's commitment before it learned of the Union's campaign, the timing of the specific announcement, the vehicle for implementing new benefits, and the record as a whole, we find that the Respondent was motivated by a desire to defeat the Union, rather than by any legitimate business considerations. Therefore we find that the Respondent violated Section 8(a)(1) of the Act by granting group life insurance, profit sharing, and a credit union, while objections to the election were still pending." (Citing Ambox, Inc., 146 NLRB 1520.) In the instant case, the speeches made by both Irving and Gus Potekin, the private employee interviews, and the benefits granted immediately after the Union lost the election while objections to the election were pending, all amount to violations of Section 8(a)(1) of the Act and are sufficient in and of themselves to warrant setting aside the election in this matter. G. The Discharge of Mary Sullivan Mary Sullivan testified that she was fired on a Friday evening before going on duty on the floor. Her version of the incident is that, while downstairs checking in, she was told by Glona Brown that Mr. Frey wanted to see her in the office and she went in and asked him what was happening. Frey said that Gus got a call that she was smoking in a patient's room while oxygen was being used , and as of 11:30 that night she was fired. She responded no, not me and he said yes, you. Sullivan said they got the wrong one, that nobody saw her smoking around an oxygen tent while oxygen was in use. Frey said that she had been pointed out. Sullivan said that she had been doing that work for 15 or 20 years and had been around oxygen tanks and had better sense than to smoke around oxygen when it was in use. Frey said he was just doing his job that Mr. Potekin said to let her go. She said it was nice to get fired for the first time in her life just to see how it felt and that if she was fired at I1 p.m., she was fired as of that time and he could make out her check, that she was not working that night . He made out her check and she left. The version of her discharge as given by Frey, Potekin, and others is completely different and under the circum- stances is the version I find credible. Hattie Pearson testified that her mother was a patient at Riviera during February and March 1969 and that she knew Mrs. Sullivan from her visits with her mother. She testified she had seen Mrs. Sullivan, while carrying a lit cigarette, leave her mother's room, go down the hall, and walk into another room where oxygen was in use. Being concerned for her mother's safety, Mrs. Pearson wrote an anonymous letter dated February 10, 1969, to Gus Potekin stating in essence that some of the aides were smoking on the floor while oxygen was in use and that such a practice was dangerous to the patients. Thereafter she continued to see Mrs. Sullivan smoking on the floor and on February 25 wrote another letter to Potekin which she signed In this letter (Respondent's Exhibit 11) she stated again that she was writing about the aides smoking on the floor while oxygen was in use and that she feared for her mother's life since her mother was helpless. She stated that she had spoken to the aide about smoking but the aide had become angry about it. She stated that she did not want to cause any trouble for either the aide or for her mother but felt it was necessary to report Mary Sullivan. After receiving the letter Gus Potekin contacted Mrs. Pearson and she confirmed to him over the telephone that this had happened. Potekin asked her to come in that evening and confront Sullivan with it and she agreed. Sullivan was then working on the 3 to I I p.m. shift. After receiving the anonymous letter, Potekin asked Frey to speak to all the aides on the floor and warn them that they were not allowed to smoke anywhere on the floor. Frey confirmed that Potekin had given him such a message and testified that he did speak to all of the personnel on all of the shifts, warning them not to smoke anywhere on the floor. After receiving the second letter, Potekin told Frey that he had confirmed with Pearson the information in the letter and that he was planning to confront Sullivan with Pearson later that evening, and if Frey saw Sullivan smoking at any time to immediately discharge her. Frey testified that around 3:30 p .m. he went upstairs on the nursing floor and came upon Mrs. Sullivan close to the nurse's station where he saw her take a drag from a cigarette and put it out. He immediately went up to her, told her he wanted to see her in the office downstairs, went downstairs, had her card punched out, and told her he was discharging her for smoking. Sullivan's timecard, which contained punches for that date (Respondent's Exhibit 20), showed she punched in at 2:43 p.m. and punched out at 3:44 p.m., over 1 hour later, which would indicate that after punching in she had plenty of time to be up on the floor and should have been there, since her shift started at 3 p.m. when it overlapped with the shift that got off work at 3:30 p.m. Thelma Fitzpatrick, a licensed practical nurse who was Sullivan's charge nurse at that time, testified she saw Sullivan smoking in the hall coming from a patient's room 816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and confirmed that Sullivan was smoking when Frey came up behind her and told her to come down to the office. In addition to this corroborated, detailed testimony against Sullivan, the General Counsel during cross-exami- nation brought out that when Mrs. Pearson had seen Sullivan go into a room where there was oxygen in use, a relative of the patient in that room had run up to Mrs. Pearson and complained about such a thing going on, stating that she would remove her relative immediately if they allowed such dangerous practices in the Home. This testimony coming during cross-examination impressed me that Mrs. Pearson was telling the truth and that her letters to the home were founded on fact. It lent a more convincing air to the testimony against Sullivan. There is no contention that the Home did not have specific rules forbidding employees smoking on the nursing floor and that the posted no-smoking signs were meant for the relatives of patients as well. It is uncontested that this rule was enforced at that time. Despite Sullivan's protestations that she only smoked in the patient's dining room and the areas where the employees were allowed to smoke, her testimony on the whole was not credible as to the amount of cigarettes she smoked, particularly when she stated that she did not know how much she smoked each day, although she had smoked since she was 16 years old. General Counsel did not establish a case for Mrs. Sullivan, there being nothing to establish company knowledge of her union activities and there being convincing evidence that she was violating established and enforced company rules, and accordingly I must dismiss the allegations in the complaint relating to her. H. Mary Scarbrough Mary Scarbrough was employed as a nurse's aide at Riviera from 1967 until March 16, 1969. In late 1968 she became incensed about the $2 deduction from her paycheck and sought some information and assistance from a Local OEO office in Chicago Heights. Several days later Neal Bratcher of the Union contacted her and they discussed whether the employees would like a union. He told her if they wanted a union they would have to sign authorization cards and return them to him. He gave her a supply of cards. When Mary Sullivan picked her up to go to work, she told Sullivan about the meeting and gave her some cards. These two solicited the employees and procured most of the signed cards. On March 16, she had a meeting of employees at her home before going to work at 1 I p.m. and it was decided she would be the union observer at the election on March 20. After checking the patients she went downstairs to check the linen for the following morning and then went to the dining room where she ate lunch with Ida Perkins. She said she had some baked ribs and cake for lunch and then told Ida Perkins she had a stomach ache and was going to go to her station to set up the patient's medication. She testified she went to set up the medication but had menstrual cramps and telling Mrs. Powell, her charge nurse, of her problem asked her to set up the medication while she went to lie down near the radiator in room 114. She said that beside cramps she was chilled and got a blanket from the closet in the room, spread it on the floor, and lay down on it between the bed and window but did not cover herself with the blanket. She said the room lights were off and later she heard Gus Potekin and Herman Frey come in the room. The lights were turned on and they walked over beside the bed and asked who she was. She identified herself and said she had a stomach ache . Potekin said she was lying there sleeping and to get up and punch out. She told him she was not asleep and he said she was. Frey punched her timecard and made up her check and brought it to her and she left. During cross-examination when asked concerning her pains she stated that they had started earlier that evening and after more examination stated they had started that afternoon . She reiterated that, although she was lying close to the radiator for warmth, she did not cover herself with the blanket she had spread on the floor. The General Counsel produced Ida Perkins who testified that Scarbrough first complained of pain during the meeting preceding their going to work. She stated that although Scarbrough had brought some chicken for her lunch, she did not eat because her stomach was hurting badly. Perkins was positive that Scarbrough ate nothing. Perkins testified she suggested that Scarbrough go lie down in room 114 by the radiator. About 2:45 a.m. she saw Scarbrough go into the room carrying a blanket and she later went into the room and saw Scarbrough down on her knees with the blanket spread out. General Counsel's witness Eleanor Beeks testified she was on duty the same evening that Scarbrough was discharged. She said she had seen Scarbrough go into room 114 at times to take a nap and on the night of her discharge Scarbrough told her she was going in room 114 to take a rest. She had no recollection that Scarbrough said anything about being ill. Gus Potekin and Herman Frey testified as to how they found Scarbrough in room 114. Mr. and Mrs. Gus Potekin and Mr. and Mrs. Frey had been out socially and returned to the Frey home about I a.m. where the Potekins were going to stay overnight rather than drive some 50 miles to their home. Shortly after they arrived Frey received a telephone call and told Potekin it was an anonymous call from someone saying that Riviera personnel were sleeping on duty. After discussing this for a few minutes , Potekin said he thought they never caught any of them sleeping because they were able to see the lights in Frey's house across the street. They decided to turn out the lights and wait a few hours and then visit the Home. About 3 a.m. Frey and Potekin walked in one end of the Home cursorily viewing the rooms until they got to the nurse's station and asked Charge Nurse Beeks who else was on duty and where they were. Beeks said that Maper Thomas and Mary Scarbrough were working on the station and she thought they were down the hall in room 117 or 116. Potekin and Frey found Maper Thomas changing bed linen for a patient but she did not know where Scarbrough was. Back at the nurse's station Beeks said she did not know where Scarbrough was, did not think she was visiting at the other nurse's station, but could have gone to the laundry room. Potekin and Frey went downstairs to the laundry room, back upstairs to the other station where Powell and Perkins RIVIERA MANOR NURSING HOME, INC. 817 said they had not seen Scarbrough, and back to Beeks without seeing her They then started checking each of the rooms on station I starting with room 101, walking into the room to check for her. After going partway into room 114 and not seeing anyone Potekin noticed that the drapes were down and there was a spot on the ceiling. He called Frey and they went back in to discuss it. They turned on the lights and walked into the room. Potekin testified they almost stepped on Scarbrough who was lying on the drapes with her head on a pile of patient's clothing close to the bed and between it and the window. They had been unable to see her until they walked around the bed because the bed spread hung close to the floor. Potekin's testimony was confirmed by Frey, that he shook her awake and when she got up she claimed she was having menstrual cramps. Potekin accused her of sleeping on the floor, saying he was not paying her for sleeping and that if she had problems she should have been lying on the bed, not hiding behind the bed on the floor. She asked for another chance but he denied it and discharged her. He had Frey call a meeting of the others on that shift and told them he had fired Scarbrough for sleeping on the job. He said that when one person slept the work was made harder for the rest of them and if he felt they could get along with one less girl he would not have hired the number he did Potekin admitted he knew Scarbrough was a union adherent when he discharged her, saying he had gathered that from her remarks at the February and March meetings and heard from Frey the names of some of the girls who were active in the Union He said he also learned some names of two active union adherents from some of the girls This latter admission supports my findings that he did engage in conversations with employees as to which employees were active in the Union. The case presented to establish that Scarbrough was discriminatorily discharged does not hold together. As may be seen from a review of General Counsel's evidence, there are contradictions between the testimonies of Scarbrough and Perkins, as well as internal contradictions and actions which are not plausible if the circumstances were as reported. For instance, Scarbrough's pain which she originally reported after eating a big lunch, were expanded to have started some 8 or 9 hours earlier. It does not seem possible that she could have had the amount of pain she and Perkins described and put away a lunch of baked ribs and cake. Perkins apparently recognized this and emphati- cally testified that Scarbrough did not eat lunch It would further seem that if a person were having chills, she would either get in bed or wrap herself in a blanket, not merely lie on top of a blanket or drapes. Although Scarbrough intimated that Powell was her charge nurse, whereas Powell was working on the other station, Eleanor Beeks, her charge nurse and General Counsel's witness, testified that Scarbrough said she was going to lie down in room 114 and said nothing about being ill. It appears that the weight of testimony is that Scarbrough went to room 114 to take a nap and was caught sleeping on the job by Potekin and Frey. There is no allegation that the rule against sleeping on the job There is no allegation that the rule against sleeping on the job was not strictly enforced and there was testimony that others had been fired for breaking the rule. Respondent then had cause to discharge her and under the circum- stances I can not find that she was discriminatorily discharged. From the testimony above it appears that Respondent is most desirous of avoiding the Union and in this instance may have been happy to discover a valid reason for discharging Scarbrough. There may be some lingering suspicions in the minds of Respondent's employees as to the bona fides of the preelection discharges of Scarbrough and Sullivan, who were the main union proponents. However, suspicions can not supplant facts and as set forth above the facts of these two discharges negate any 8(a)(3) findings. I therefore recommend the dismissal of the 8(a)(3) allegation concern- ing Mary Scarbrough. 1. The Allegations Concerning Rose Chatman Rose Chatman, a licensed practical nurse, worked for Respondent from October 1967 until March 5, 1969. As noted above, I did not believe her testimony regarding an alleged 8(a)(1) interrogation by Gus Potekin. She did sign a union card but other than that, her union activity was minimal. Respondent's rules for its employees (Respondent's Exhibit 14) besides containing rules forbidding smoking, sleeping, or napping on the job also stated that any employee who receives a wage-deduction notice would have 72 hours to bring in a release of judgment or the person would be let go. In 1968 Rose Chatman and Respondent received a wage- deduction order for over $300 from Texaco Oil Company. In discussing it with Frey, they agreed that Respondent would make deductions from her salary for a period of time and such was done, and an amount over $200 was deducted and forwarded to Texaco's counsel. Gus Potekin stated that he made an exception for Rose Chatman because licensed practical nurses were very hard to find. Thereafter, a release was received and apparently Potekin, Frey, and Chatman felt that the entire matter was completed. In December 1968, she received a further letter from counsel representing Texaco dunning her for a balance of $117. She testified that she answered this letter in the latter part of December or early January, saying that she understood the bill had been paid and if there was a balance that they should contact the nursing home. Counsel for Texaco testified that this alleged letter was never received by him. Chatman testified that after writing the letter she talked to Herman Frey about the matter and Frey told her to bring in her receipts and check stubs and they would go over it. According to both her and Frey, they did so and it became evident after checking the amounts that had been deducted, that the full amount had not been paid, but that there was some discrepancy between the claimed balance of $117 and what they figured the balance to be. According to Chatman after that meeting with Frey nothing more was said by anyone from Riviera until just before the election when Frey had her come to the office and gave her a typewritten letter saying that she had to pay the balance by the next day and if it was not paid she would be discharged She specifically testified that she did not 818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discuss the wage-deduction order with Potekin after her first conversation with Frey. She was off work after receiving the letter from Frey and when she came in a few days later to pick up her check she was told by Gloria Brown that she was fired. She again specifically testified that she had no talks with Potekin except when he called her in to talk to her concerning the Union, which testimony I have discredited. Potekin testified that he thought that the matter had been settled in 1968 and was surprised to get the second wage- deduction order on Chatman in February 1969 bearing a return date of April 1. Potekin instructed Frey to contact his attorney Aaron Jacobs and Rose Chatman and check it out. Rose Chatman was called into the office on March 6, and Potekin asked her about the matter. She said she had paid it with her personal check. They telephoned Attorney Jacobs and Potekin described the matter to him and then had Chatman speak, to Jacobs. Chatman denied that she owed any money stating that the debt had been paid by check. Attorney Jacobs testified that around March 6, he had a telephone conversation with Rose Chatman in which she stated that the bill had been paid. He urged her to bring in the receipt so that they 'could take the matter up with counsel representing Texaco. Potekin testified that he had several more conversations with Rose Chatman asking for the receipts. Chatman claimed at first that she could not find her check stubs and then stated that she had used a credit-exchange office but could not remember where it was. Finally she remembered where it was and then reported that they would not give her a duplicate receipt. After several such conversations requesting that she supply proof that the bill was paid, Potekin said he became convinced she was giving him a runaround and had not paid the matter and that Riviera was going to become liable for the amount due since it had not deducted any sums from her wages. He told Frey to draw up a letter requiring her to show proof of payment or be discharged. According to Potekin, shortly before this instruction to Frey, he had met with Chatman in the office and asked if she had brought the receipt. She told him to stop harping on it. He said he had to have proof or he would have to start deductions from her pay. She asked if LPN's were that easy to get and he replied he could not go through this again and that he was not going to get hurt on the wage deduction. She offered him a deal, to vote against the Union. He said he wanted no deals, just for her to pay the people or he was going to take it out of her salary. At that point he told Frey to give her a letter with a deadline for bringing in the receipt she claimed she had. Potekin testified that Chatman was scheduled to work on March 20 and when he saw her he asked if she had voted in the election. She answered, no, that she had been fired. He told her that he did not fire her. She said, you gave me a letter and fired me. He told her no, that she had lied to him, and that if she did not have a job she had fired herself by not paying the amount that was due and owing. Deductions were made from her checks to cover the amount and Satisfaction of Judgment was received. The evidence here indicates that Chatman's testimony is false, that there were no conversations between her and management about this debt between her January conver- sation with Frey and the time she received the March letter requesting the receipt. Frey's version of the interim conversations appears plausible. Potekin may have embel- lished his testimony a bit but essentially it contains the truth of the matter and was corroborated by Respondent's counsel, Jacobs, and by counsel for the Texaco Company who had issued the wage-deduction order. It appears that Chatman made no attempt to clear up the debt between the time that she was notified of an amount still due and when she left Respondent's employ. From the evidence before me I can only conclude that Chatman was terminated because she did not produce a receipt showing that the debt had been cleared nor pay the amounts due and owing under the wage-deduction order nor make arrangements to do so at Respondent's request. I would therefore dismiss the 8(aX3) allegation as to Rose Chatman. J. The Objections to the Election The Union filed broad objections to the election, a number of which were not supported by any evidence during this proceeding. However I have found above that Respondent engaged in 8(axl) speeches, interrogations, and promises of benefit to employees from the time the demand was made until shortly before the election. These matters which are also alleged as objections to the election, I have found are substantiated and violative of Section 8(a)(1) and I conclude and find that they are sufficient to set the election aside. I would therefore recommend that the results of the election held on March 20, 1969, be set aside. K. The Refusal To Bargain Allegations Joint Exhibit I is a payroll listing of Respondent's employees of January 9 (date of the demand) and contains 37 possible inclusions in the unit. Of this number General Counsel would exclude Olga Brown and Mrs. Betty Frey, while Respondent would include them and exclude Pearl Green as a supervisor. General Counsel would include Green contending she was not a supervisor at the crucial times. I have concluded that Betty Frey should be excluded from the unit and Olga Brown and Pearl Green included. 1. Betty Frey On Joint Exhibit 1, Betty Frey is listed as an occupational therapist. Respondent stated that half her time was spent in assisting patients such as by reading to them, procuring things for them, and assisting them with games. The balance of her time was spent in checking the patient-care records maintained at the nursing station desk to ascertain that the records contained all the information required by various health agencies such as Medicare. She could not change the records but wrote notes to the appropriate nurse calling attention to the record deficiencies so that might be changed. Betty Frey is Assistant Administrator Herman Frey's wife and as noted above, they live across the street from the Home. Mrs. Frey has some young children and according RIVIERA MANOR NURSING HOME, INC. 819 to Gus Potekin, she is usually at home when her children are there. She has no fixed hours for work, but works at her own discretion, sometimes during the day and sometimes at night, but does punch a timecard. She receives a flat salary of $100 per week whether she works no hours or as many as 40, but she usually averages 20 hours a week. When her husband took a 2-week vacation, she accompanied him and was paid for the 2-week period. All other employees except management receive only a 1-week vacation. From this summary of her hours, pay duties, and independence it is clear that Betty Frey is a clerical employee in a quasi-managerial position, closely allied to management. She does not wear a uniform and has no common work interests with unit employees. She should be excluded from the unit. 2. Olga Brown Olga Brown is listed on Joint Exhibit 1 as a licensed practical nurse (LPN). The General Counsel's position is that her duties were more supervisory and he felt she could not operate as an LPN in Illinois since she was only registered in California. Whether Illinois State law permitted her to operate uncertified by the State as an LPN or not, the facts are that her duties at Respondent were essentially those of an LPN. As a long-time employee of Gus Potekin she undertook additional duties as well. She had worked with Gus Potekin as an LPN at the Fountainbleu home before coming to Riviera in 1967, where she set up the supply room and the system for dispensing supplies. She is married to a railroad man and has no children and made herself available for substantial overtime work. Because her home was some distance away in Chicago and because she worked so much overtime, Potekin allowed her the consultation room for her overnight use. By this device she did not have to travel the long distance late at night and early in the morning and Riviera was able to have extended use of her services. At Riviera she was originally compensated on an hourly basis of $1.75. Gus Potekin testified that because of her great amounts of overtime he offered her a flat monthly rate of $450 in 1968, which was later raised to $500 per month. The other LPN's are paid on an hourly basis, ranging from $2 to $2.30 per hour. If Olga Brown's pay rate were based on a 48-hour week she would be compensated at about $2.40 per hour, but the testimony establishes that she averaged between 60 and 80 hours per week, so her compensation is actually below that of other LPN's on an hourly basis. She testified that because of her close association with Gus Potekin the girls ask her to make requests to him for them, such as increases, days off, vacations, etc., and she makes the requests to Potekin or Frey and gives the response to the individuals. Most of the General Counsel witnesses testified that they were interviewed for employment by Olga Brown and in most instances it was she who told them they were hired. However, practically all of this testimony was compatible with Respondent's testimony that Olga Brown did not have the authority to hire but was used on occasion to interview people to see if they had the qualifications needed by Respondent . She would then discuss the person with Frey or Potekin who would tell her whether to hire the person or not. Respondent maintained that she was merely a messenger in such instances. Olga Brown testified that she had never hired or discharged anyone or given employees time off , but had merely passed requests or information to Frey or Potekin, received an answer, and given the answer to the individual. Further one of General Counsel's witnesses testified that prior to the initiation of the union campaign , Herman Frey in a meeting of employees said that Olga Brown was not a boss, that the employees had to take orders from him and not from Olga Brown regarding days off, etc., and that her authority was limited to the authority of an LPN. Other General Counsel's witnesses testified that Olga Brown made out the work schedules for the week. She, Frey, and Potekin testified specifically that she never made out a work schedule , that the work schedules were only prepared by Frey or the director of nursing, and that the most she would have done would have been to copy something they had prepared. Olga stated she prepared schedules for patient medication for the ensuing month and it could have been those forms that the General Counsel witnesses saw her prepare. There was testimony that on one occasion she told an employee to punch out and the person was fired . But there is countervailing testimony that in each instance after she had reported an employee's infraction to Frey or Potekin, Frey or Potekin interviewed the employee and determined what had happened and individually made the decision whether or not to discharge the employee. Because of her close relationship to Potekin there is an aura of managerial authority about Olga Brown , but it is clear from the weight of testimony that she does not possess the type of authority (other than LPN authority) which would label her as a supervisor within the meaning of the Act. She might be thought of as a managerial conduit in passing requests and complaints to management and answers to employees, and if I were to find she made the 8(a)(1) statements attributed to her by Carey Kennedy, I would hold management responsible for such conduct. However Kennedy's testimony did not impress me, as it seemed out of context and she was unable to relate the statement to any part of a conversation . I credit Brown's denial of Kennedy's statement. I conclude and find that Olga Brown should be included to the unit since she is an LPN and works as such and this group is included in the unit. Her authority does not extend to the prohibited supervisory level and she has a community of interest with the other employees in the unit. Like Pearl Green, discussed below, Olga Brown was an older trusted employee given some added duties because of that status and her experience in Respondent's organization.4 3. Pearl Green Pearl Green testified that she was employed as a cook shortly after Riviera opened and while there were only two 4 See Wilson Furniture Company, 181 NLRB No 14 820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD patients. She was told then that she had charge of the kitchen and was to prepare the meals according to the menus specified by the dietician and was to be sure that the kitchen was kept in proper order. As the volume of patients increased additional kitchen help was needed. On Joint Exhibit I Pearl Green is classified as a cook receiving a pay rate of $2 per hour. The other kitchen help received from $1.25 to $1.35 per hour. At the time of the demand (January 9) besides Pearl Green there were five others assigned to the kitchen, which is open from 6 a.m. until 8 p.m., 7 days a week. Two employees reported at 6 a.m. to prepare and serve breakfast and worked until 2 p.m. Pearl Green regularly worked from 10:30 a.m. until 7:30 p.m. and would see to the preparation of the lunch and evening meals. The food was generally cooked in advance and needed only to be heated up for the day she was off. Her authority included seeing that the food was properly cooked, on time, and in accordance with the dieticians specifications, that the dishes and trays were washed and the trays prepared. The food was ordered on a monthly basis by Frey, and milk and dairy products were delivered to the Home during the week. If she needed additional groceries she could order them. She testified that she attempted to train the kitchen help to cook so that if the kitchen were short handed they could assist or if by themselves they would know what to do. If someone wanted to be off she would do the work of that employee, but if employees were not coming in or wanted to be off they were supposed to get permission from Frey or Potekin. The Home has a contract with a dietician who prepares all the menus on a weekly schedule and meets and discusses the menus with Pearl Green impressing on her the necessity for following the menus precisely for diabetics, etc., and instructing her in the various aspects of nutrition. Pearl Green testified that there was a difference between the way she bossed the people around at the time of the hearing, when they had eight people working in the kitchen, and in the way she ran it in December and January. She said the main distinction is that formerly she did a good bit of the work herself, whereas now she told the employees what to do and had assistant cooks. Respondent conceded that Pearl Green was somewhat temperamental and occasionally got in disputes with other employees, reporting to management that she could not work with them. Gus Potekin stated that they would usually dismiss the other employee because he felt that Pearl Green was a good cook and he did not want to lose her services, while he could find other kitchen help at $1.25 per hour. A number of the kitchen employees were recommended by her and on one occasion she put a girl to work in the kitchen before Frey had an opportunity to interview her. Respondent, knowing that the applicant would have to get along with Green, usually accepted her recommendation as to employees, but there were occasions when employees were hired without her recommendation and Green was told to put them to work. In all instances management independently checked the person's background and references before the final approval of the applicant. In deciding whether Green should be excluded as a supervisor or included in the unit, the nature of her job, duties, and authority at the time of the demand is controlling here . It seems evident from the above summary that in December and January she acted more as a leadman than as a supervisor. Unlike the cook in Sea Life, Incorporated supra, Pearl Green did not schedule hours of work or change work schedules, award overtime or grant time off. Employees who called in were referred to Mr. Frey and not to her. Her principal duty was to keep the kitchen employees working and within the area of her discretion she did so. Her pay rate was higher than other kitchen employees but lower than others in the unit. She possessed some indicia of supervisory status, but I conclude that it was minor and her capacity was that of a leadman or strawboss. I conclude and find that Pearl Green during the critical period was not a supervisor and should be included in the unit as composed at that time. 4. Composition of the unit on January 9; and undisputed authorization cards From the above conclusions, I find that the unit on January 9 consisted of 36 employees, so that to represent a majority of the unit employees, the Union would have needed at least 19 valid authorization cards. The testimony establishes that the authorization cards were signed around Christmas 1968 and, following the demand meeting on the morning of January 9, the Union filed the petition herein that afternoon with supporting authorization cards. The petition and the supporting cards were time-stamped by the Regional Office when the petition was filed. Respondent did not contest the authenticity or validity of the 13 authorization cards introduced in evidence for Barbara Reynolds, Karie Fulwiley, Mary Scarbrough, Mary Sullivan, Dorothy Nelson, Mary Harrison, Betty Luckett, Ida Perkins, Rose Chatman, Loyal Moore, Mary Sweatt, Alice Shenarult, and Johnie Mae Haley. Respondent contested the validity of the cards of Pearl Green and Brenda Curtis on the basis that it felt Pearl Green was a supervisor and might have influenced Brenda Curtis to sign a card. Having decided that Pearl Green is not a supervisor, Respondent's contention as to Pearl Green fails and her card will be counted. Respondent further contended that from her testimony Brenda Curtis may have thought Pearl Green was a supervisor. Respon- dent contends that if an employee thinks another employee might be a supervisor, any card that person signs at the request of the putative supervisor is a nullity. Brenda Curtis testified that Pearl Green gave her a union card and said they were trying to bring the Union to a head. She stated Pearl Green was the head cook and told the employees in the kitchen what to do. In the same vein licensed practical nurses who are at times charge nurses tell the other LPN's and nurses' aides what to do on the floor, but that does not make them supervisors nor does it make the cards solicited by LPN's from nurses' aides a nullity. The fact is that the individual is not a supervisor within the meaning of the Act. Since Pearl Green was not a supervisor at the critical time, there is no taint to Brenda Curtis' card and the card is genuine and will be counted. RIVIERA MANOR NURSING HOME, INC. Annie Nelson was deceased at the time of the hearing. General Counsel and Respondent in their briefs discussed the testimony of Annie Nelson's son as to whether her card was genuine. However, NLRB Field Examiner Alexander testified that he had secured a subscribed and sworn affidavit from Annie Nelson on June 6, 1969, which he identified. In this affidavit Annie Nelson declared that she had signed the union authorization card appended to it after Julia Williams gave her the card on December 24, 1968. The affidavit recounted that she was told by Julia Williams that if she wanted to join the Union to sign the card and that she signed it but did not date it and returned it to Julia Williams in late December 1968. I conclude and find on the basis of this subscribed and sworn affidavit that the card submitted for Annie Nelson is genuine and should be counted towards the Union's majority showing.5 None of the parties sought to question Julia Williams regarding the procurement of the card. General Counsel produced considerable testimony in an attempt to establish that Alicia Washington and Victoria Washington were employed by Respondent prior to December 24, the date on which their authorization cards were apparently signed. In contravention Respondent produced oral testimony and documentary evidence to establish that neither of the girls was employed on December 24, but that they were employed several days later. It is uncontested that both were employed on the demand date, January 9. Viewelta Smith testified that she left work on December 16, because she was sick and after staying off returned to work in late December. Respondent offered testimony that Smith left on December 16, after being warned that if she did she would be fired. Respondent produced her timecard to establish that it contained a notation that she was discharged on December 18, and a further notation that she was rehired on December 29, 1968, in furtherance of its position that she was not an employee on the date on her card and that it should not be counted towards the Union's majority. Again there is no contest she was employed on the date of demand. Elaine (Eleanor) Beeks testified that she placed all of the writing including her signature on her union authorization card except the date thereon which is December 20. She testified that she did not remember whether she signed the card before or after Christmas. As to the two Washingtons and Smith, Respondent contends they were not employees at the time they signed their cards and therefore the cards should not be counted. Regarding Beeks, Respondent contends that since she does not know when she signed the card, conceivably it could have been signed after the date of the demand and that the card should not be counted towards the Union's majority status. In regard to the question of whether Beeks card was dated before or after it was received with the petition in the Regional Office, General Counsel produced Julia Dencker, the supervisor of the mail, file, and records unit of the NLRB Regional Office, who testified that she had been employed by the Board for 22 years and had been the 5 Annie Nelson's timecard is date-stamped as received by the NLRB Regional Office at 2 22 p m January 9 821 supervisor of this department since 1959 . She testified that when authorization cards were received with a petition, they are time-stamped in the office and the cards are examined to ascertain whether they are dated or not. Any authorization card which is not dated is stamped "Undated" in the place on the card for a date. This procedure is followed in the Regional Office to assure that a card cannot be returned and used to support a petition, at a later date . Mrs. Dencker also testified that the authoriza- tion cards are retained by the region during the time the case is open and it is only after the conclusion of a case that the cards may be returned to the petitioning union. This testimony establishes that the cards which were received on January 9 by the Region in support of the petition remained in the Region 's possession . The cards for the two Washingtons, Smith , and Beeks bear Regional Office time stamps on the reverse side showing that they were received in the Regional Office at either 2:22 or 2:23 p.m., January 9. This physical evidence together with the other testimony establishes that on January 9, the date of the demand, the Union had in its possession and gave to the Regional Office in support of the petition these four authorization cards as well as the others which were received by the Regional Office . Thus it would appear to be immaterial whether the employees were actually employed on the date they signed the union cards or whether they signed the cards on the date that they said. The fact is that they were employees on the date of demand and the Union had in its possession signed authorization cards from each of them authorizing the Union to act as their bargaining agent on the date the Union made its demand and filed its petition with the Board .6 Therefore I will count each of these cards towards the Union's status. Respondent's objections to 7 authorization cards have been resolved against Respondent and I find that with the 13 uncontested cards the Union represented 20 employees of a total of 36 unit employees when it made its demand for recognition, and thus represented a majority of Respon- dent's employees in an appropriate unit. Having determined above that Respondent's actions found violative of the Act are sufficient to sustain the objections to the election , and having recommended that the election be set aside , there remains the question of whether the violative acts of Respondent were so serious and pervasive as to render useless a choice by Respondent's employees in a second election and require as a fitting and necessary remedy the imposition of a bargaining order. In N. L. R. B. v. Gissel Packing Company, 395 U.S. 575, 614, 616, the Supreme Court approved the Board's authority to issue a bargaining order ". . . in less extraordinary cases marked by less pervasive practices which nonetheless still have the tendency to undermine majority strength and impede the election processes ." In such a situation the Board must examine the nature and extent of the employer's unlawful conduct and ascertain the likelihood that the use of traditional remedies would ensure a fair election . The Court instructed the Board to decide whether .. even though traditional remedies might be able to ensure a fair election there was insufficient indication that 6 See Polyurethane Products Company, Inc. 168 NLRB No 20 822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD an election . . . would definitely be a more reliable test of the employees' desires than the card count taken before the unfair labor practices occurred." In resisting a bargaining order Respondent alleges there has been a heavy turnover of employees in the interim and that to order it to bargain with the Union would be to order the Union to bargain for employees who have never authorized the Union to act for it. The Board answered this argument in New Alaska Developing Corp., Alaska Housing Corporation, 180 NLRB 150, that "It is now well settled that the Board is not precluded from issuing a bargaining order even though a great length of time and a substantial turnover of personnel has occurred since the commission of the unfair labor practices. N.L.R.B. v. Katz, 369 U.S. 736; Franks Bros. Co. v. N. L. R. B., 321 U.S. 702; N. L. R. B. v. P. Lorillard Co., 314 U.S. 512." The Supreme Court reaffirmed this authority in Gissel Packing Company, supra, stating that "If the Board could enter only a cease-and-desist order and direct an election or a rerun, it would in effect be rewarding the employer and allowing him 'to profit from [his] own wrongful refusal to bargain' ...." In this case I conclude and find that the nature of Respondent 's unfair labor practices are such as to prevent the holding of a free and fair election. The Union on January 9 was entitled to recognition and bargaining, which Respondent refused and between that date and the date of the election Respondent committed the various acts above found violative of Section 8(a)(1) which were intended to and did undermine the Union's majority status.? Respondent's violative acts commenced the day the Union made its demand for recognition when corporate officer and stockholder Irving Potekin questioned employ- ees as to what started the union, promised that Respondent would grant them benefits if they did not select the Union as their bargaining agent, and threatened that even if they did select the Union as their bargaining agent Respondent would be able to buy off the Union to the employees' detriment. This initial response followed by the 8(a)(I) activities of the chief stockholder and corporate officer Gus Potekin detailed supra completes the picture of Respondent seeking to avoid its duty to bargain collectively by attempting to undermine the Union's majority status. This activity coupled with the long-lasting effects of fulfilling the promises of wage raises, paid holidays, and an insurance program to employees after 2 years of vague promises when a union was not in the picture would inevitably disturb the atmosphere surrounding an election and would render impossible a free and impartial judgment by the employees as to whether they wished to have a union represent them. They would have in their memories, or would have been told by other employees, that Respondent had made preelection promises and kept them after the Union was defeated. The fact of these promises and their enjoyment of those benefits would be a perpetual reminder of that fact and would provide an uneven balance in any future election, which makes the free choice of the employees as shown by their authorization cards a more reliable guide to their desires. I therefore recommend that a bargaining order be imposed and that the petition be dismissed. III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section II, above, occurring in connection with Respondent's opera- tions described in section 1, above, have a close, intimate, and substantial relationship to trade , traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. IV. THE REMEDY Having found that Respondent engaged in the unfair labor practices set forth above, I recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act as follows: Respondent since on or about January 9, 1969, has at all times refused and still refuses to bargain with the Union as the representative of its employees in an appropriate unit. I therefore recommend that Respondent, upon request, bargain collectively with the Union in good faith and, in the event that an understanding is reached , embody such understanding in a signed agreement. Having also found that Respondent sought to undermine the Union's majority status by making promises of benefits if the employees rejected the Union as their collective- bargaining agent, by threatening to deal underneath the table with the Union to the employees' detriment if they did choose the Union as their collective-bargaining agent, by indicating to the employees that it knew of their union activities, by interrogating employees concerning their union activities and the union sentiments of others, by threatening employees that they would lose theirjob if they struck, by granting promised benefits following the defeat of the Union in the election and thereby having rejected the principle of collective-bargaining, and by acting to avoid collective bargaining, Respondent, by such action, has invaded its employees ' rights under the Act. I am of the opinion that Respondent may commit further unfair labor practices, having by the actions detailed herein shown its proclivity for so doing. Since it is a part of the purpose of the Act to prevent the commission of unfair labor practices, I recommend that Respondent be placed under a broad enjoinder to cease and desist from infringing upon the rights guaranteed its employees by the Act in this or any other manner. On the basis of the foregoing findings and the entire record, I make the following: CONCLUSIONS OF LAW 1. Riviera Manor Nursing Home, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. All nurses' aides, licensed practical nurses, and dietary and housekeeping employees of Respondent, exclusive of office clerical employees, professional employ- ees, registered nurses, doctors, guards, and supervisors as defined in the Act, constitute a unit appropriate for the 7 See Atlas Engine Works, Inc., 181 NLRB No. 13. RIVIERA MANOR NURSING HOME, INC. 823 purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. At all times since January 9, 1969, the Union has been, and is now, the exclusive representative of the employees in the said unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. Respondent, by refusing to bargain with the Union on and after January 9, 1969, as the exclusive representative of its employees in the appropriate unit, has engaged in and is engaging in unfair labor practices affecting commerce within the meaning of Sections 8(a)(5) and (1) and 2(6) and (7) of the Act. 6. Respondent has engaged in and is engaging in unfair labor practices affecting commerce within the meaning of Sections 8(a)(1) and 2(6) and (7) of the Act by: (a) Threatening its employees that if they selected the Union as their collective-bargaining representative Respon- dent would deal surreptitiously with the Union to the employees' detriment. (b) Indicating to the employees that it knew of their union activities, thereby giving the impression that their union activities were under surveillance. (c) Interrogating employees concerning their union activities and sentiments and the activities and sentiments of other employees. (d) Promising the employees wage, insurance, and holiday benefits if they did not select the Union as their collective-bargaining representative. (e) Threatening employees that they would lose their jobs if they struck. (f) Granting the employees wage, insurance, and holiday benefits after the employees had rejected the Union as their collective-bargaining representative in an election. RECOMMENDED ORDERS On the basis of the foregoing findings of fact and conclusions of law and the entire record in this case considered as a whole, I recommend that Riviera Manor Nursing Home, Inc., of Chicago Heights, Illinois, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively in good faith concerning rates of pay, hours of employment, and other terms and conditions of employment with Council 19, American Federation of State, County, and Municipal Employees, AFL-CIO, as the exclusive representative of the employees in the appropriate unit described in the section above entitled "Conclusions of Law." (b) Threatening employees that if they selected the Union as their collective-bargaining agent Respondent would deal surreptitiously with the Union to the employees' detriment. (c) Indicating to the employees that it knew of their union activities and sentiments. (d) Interrogating its employees as to their union activities and sentiments and the union activities and sentiments of other employees. (e) Promising its employees wage, insurance , and holiday benefits if they did not select the Union as their collective- bargaining representative. (f) Threatening employees that they would lose their jobs if they struck. (g) Granting its employees wage, insurance, and holiday benefits after they had rejected the Union as their collective-bargaining representative in the election held on March 20. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act. (a) Upon request, bargain collectively in good faith with the above-named Union as the exclusive representative of all the employees in the appropriate unit and embody in a signed agreement any understanding reached. (b) Post at its Chicago Heights, Illinois, establishment, copies of the attached notice marked "Appendix."9 Copies of said notice, on forms provided by the Regional Director for Region 13, after being duly signed by Respondent's representative, shall be posted by the Respondent immedi- ately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 13, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.io Under the terms of the order directing a hearing issued by the Director of Region 13 on August 4, 1969, Case 13-RC-11744 is severed from this proceeding and as I have stated above it is recommended that the election held pursuant to that case be set aside and the petition dismissed. " In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations, and Recommended Order herein shall, as provided in Section 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 9 In the event that the Board 's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD" shall be changed to read "POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF APPEALS ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD" 10 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read. "Notify the Regional Director for Region 13. in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government Following a trial in which the Company, the Union, and the General Counsel of the National Labor Relations Board participated and offered evidence, it has been found that we violated the Act. We have been ordered to post this notice and we intend to carry out the order of the Board, and abide by the following: WE WILL bargain collectively in good faith, upon request, with Council 19, American Federation of State, County, and Municipal Employees, AFL-CIO, as the exclusive representative of all employees in the 824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bargaining unit described below with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and, if an understanding is reached, we will sign a contract containing such understanding. The bargaining unit is: All nurses' aides, licensed practical nurses, dietary and housekeeping employees, excluding office clerical employees, professional employees, registered nurses, doctors, guards, and supervisors as defined in the Act. WE WILL NOT threaten our employees that if they select the Union as their collective-bargaining agent we will deal with the Union under the table to their detriment. WE WILL NOT (indicate to our employees that we know of their union sentiments and activities. WE WILL NOT ask our employees about their union activities and sentiments or the activities and sentiments of other employees. WE WILL NOT promise wage, insurance, and holiday benefits to the employees if they do not select the Union as their collective-bargaining representative. WE WILL NOT threaten our employees that they would lose their jobs if they struck. WE WILL NOT grant wage, insurance, and holiday benefits to our employees because they reject the Union as their collective-bargaining representative. All our employees are free to become or remain union members. Dated By RIVIERA MANOR NURSING HOME, INC. (Employer) (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered , defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, 881 U.S. Courthouse and Federal Office Building, 219 South Dearborn Street, Chicago, Illinois 60604, Telephone 312-353-7572.