Delmar Gardens, Inc.

DELMAR GARDENS, INC. 309 Delmar Gardens, Inc. and Service Employees Interna- tional Union, Local 50, AFL-CIO. Case 14-CA-6520 July 19, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On March 9, 1972, Trial Examiner Thomas F. Maher issued the attached Decision in this proceed- ing. Thereafter, both General Counsel and Respon- dent filed exceptions and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and briefs and has decided to affirm the Trial Examiner's rulings, findings, ' and conclusions and to adopt his recommended Order. 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 the complaint be, and it hereby is, dismissed in its entirety. I Contrary to the Trial Examiner's finding, employee Ware did not testify that employees had inquired concerning their raises , but only that Grossberg had so stated Ware's testimony was admissible and nonobiectionabie to show what Grossberg said , but is hearsay and not probative to show the truth of what Grossberg said We do not rely on the finding by the Trial Examiner that the employees had in fact asked Grossberg concerning their raises We rely, rather, on record evidence that, in each of the past 3 years, most of Respondent 's employees had received a third-quarter raise, which, in 1971 , appears to have been held up by the Wage-Puce Freeze With this pattern shown, Grossberg's speech of October 26, and his grant of increases when the freeze was over, cannot be found violative of Sec 8(a)(1) TRIAL EXAMINER'S DECISION Inc., Respondent herein, alleging violations of Section 8(a)(1) of the National Labor Relations Act as amended (29 U.S.C., Sec. 151, et seq.), herein called the Act. Thereafter, on December 16, 1971, the Acting Regional Director issued his Report on Objections affecting the results of the election held pursuant to an agreement for consent election among Respondent's employees in Case 14-RM-414, together with his order directing a hearing on said objections and an order consolidating the two cases for trial herein . In its duly filed answer Respondent, while admitting certain allegations of the complaint , denied the commission of any unfair labor practices. Pursuant to notice a trial was held before me in St. Louis, Missouri, where all parties were present, represented by counsel, and afforded full opportunity to be heard , present oral argument, and file briefs with me. Briefs were filed by both General Counsel and Respondent on January 31, and February 1, 1972, respectively. Upon consideration of the entire record, including the briefs filed with me, and specifically upon my observation of each witness appearing before me,' I make the following: FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. THE NATURE OF RESPONDENT'S BUSINESS Delmar Gardens, Inc., is a Missouri corporation main- taining its office and facility in University City, Missouri, where it is engaged in the operation of a nursing home, providing nursing and custodial care and related services. During the most recent annual period Respondent, in the course and conduct of its business operations, derived gross revenues in excess of $100,000 from the operation of its nursing home, and it purchased and caused to be transported to its University City, Missouri, facility goods and materials valued in excess of $10,000, of which goods and materials valued in excess of $10,000 were thus transported directly from points located outside the State of Missouri. Upon the foregoing stipulated facts I conclude and find that the Respondent is an employer engaged in commerce within the meamng of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED It is admitted and I accordingly conclude and find that Service Employees Union, Local 50, AFL-CIO, the Charging Party herein, is a labor organization within the meaning of Section 2(5) of the Act. STATEMENT OF THE CASE THOMAS F. MAHER , Trial Examiner : Upon a charge filed on November 9, 1971, by Service Employees Union, Local 50, AFL-CIO, herein called the Union, the Acting Regional Director for Region 14 of the National Labor Relations Board, herein called the Board, issued a complaint on December 15, 1971, against Delmar Gardens, III. THE UNFAIR LABOR PRACTICES A. The Union's Effort To Organize Respondent 's Employees Sometime in early October 1971 , Henry Grossberg, Respondent's vice president and administrator, observed that the premises were being picketed by unidentified i Bishop and Malco, Inc, 159 NLRB 1159, 1161 198 NLRB No. 57 310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD individuals. It soon came to his attention that deliveries and services to the facility were being curtailed as a consequence of the picketing. It was determined that the activity was being conducted by the Union seeking Respondent's recognition as the bargaining representative of the employees. In accordance with appropriate proce- dures Respondent, on October 14, 1971, filed with the Board a petition for an election among its employees and by an agreement for consent election executed on October 29, 1971, an election was held on November 4, 1971. A tally of the results of the election disclosed that among 67 eligible voters 8 selected the Union and 54 voted against it, with 5 additional votes challenged. Thereafter, on Novem- ber 16, 1971, following timely objections to the conduct affecting the results of the election filed by the Union, the Regional Director issued his report on objections. Therein he considered the two objections made, one being the subject matter of a charge filed in Case 14-CA-6520, the instant proceeding, relating to a promise of wage increases in order to influence the employees to vote against the Union and a subsequent granting of such an increase; the second objection being the Union's allegation that Respon- dent had caused one of its supervisors to act as its observer during the election. By the Regional Director's order issued together with his report these issues constitute the subject matter of this proceeding and will be disposed of herein. B. The Employee Meeting and Eventual Wage Increase Shortly after Respondent's October 14 filing of the petition for an election, Vice President Grossberg tele- phoned their accountant to inquire if, in view of the price and wage freeze currently in effect pursuant to Presidential Executive Order, it could increase the wages of employees who had not received wages for sometime previously. In response, Sidney Gorenstein, the accountant, sent the following to Respondent on October 19, 1971: This is to confirm our telephone conversation pertain- ing to the wage-price freeze currently in effect. In our conversation you stated to us that you very much desired to increase the wages of employees who had not received a raise for some time, but were performing substantially the same duties. You also requested information as to whether employes who had been hired on a temporary basis and served an apprenticeship period could have their wages raised upon completion of their apprenticeship period. We posed these questions to the Internal Revenue Service, who is in charge of the wage-price freeze currently in effect and who interpret the guidelines set forth from time to time. With reference to your regular employes we are advised that the wages could not be raised at this time if they continue to perform the same duties and the same basic skills were required in the performance of their job. With reference to your temporary employes, the wages could be raised provided that the period of apprentice- ship did not exceed three months. As you know, the entire price-wage freeze law is currently under review and new guidlines are expected to be issued by November 15. When these guidelines are released, I will contact you immediately. Should you have any other questions, do not hesitate to call. Thereafter, on October 26, Grossberg called the employees together in three groups corresponding to their respective shifts. As credibly described by employee Idella Ware and not denied by Grossberg, Grossberg spoke to them as follows: He told us that he was calling us together because we had been asking him about the raises, and he had gotten a letter from his auditor stating that we had got caught in the freeze and that he could not give any raise until after the freeze, which would be November 14 or 15 . . . . And he passed the paychecks and he told us that an election would be held November 4, 1971, to watch the bulletin board for the notice of the election, where it would be held and at what time . . . . If you was off that day to be sure to come in and vote, vote of your own free choice, this is a free country, to vote as you please to do. Employee Christine Jones credibly quoted Grossberg as referring to the raise which they did not get in August because of the freeze. When Grossberg finished his speech he distributed the weekly paychecks. Normally, these were obtained in the office by the individual employees. It is to be noted that prior to this meeting no one had spoken to the employees about the raises. Records submitted into evidence by counsel for the General Counsel disclose that upon the lifting of the so- called "wage freeze" on November 14, 1971, the Respon- dent granted wages to a considerable number of its employees, in accordance with its earlier statement that it planned to do so. C. Conclusions Respondent's failure in August 1971 to grant the employees what appears from its records to have been a periodic wage increase and its granting of such an increase in mid-November are, in and of themselves, normal business operations. It is common knowledge that the price and wage freeze imposed by Executive Order in mid- August precluded such increases for the time stated. Certainly, then, it would not seem unreasonable for an employer to tell his employees why they were not receiving their raises, particularly since the rumors, reports, and discussions of the wage freeze could reasonably create questions in the employees' minds. This typically normal situation was complicated here, however, by the injection of the Union into the picture. In early October, a union picket was observed walking in front of Respondent's establishment. Thereafter on Octo- ber 14 Respondent, by filing its petition with the Board, initiated procedures to obtain an employee election. Between then and October 19 it called its accountant to see what could be done about granting the raises held up in August, and on October 19 the accountant provided a full explanation of the wage-freeze situation which was then conveyed to the employees in a meeting called for that purpose and also to remind them to vote in the election. DELMAR GARDENS, INC. This sequence of events adds to Grossberg's October 26 speech to his employees a disturbing ingredient: That an inference may be drawn from the timing of the speech to suggest that it was intended more to influence the course of the election than it was to explain why raises were not granted 2 months ago. Such a motive would most certainly constitute an unlawful interference with the employees in the exercise of their statutory right and I would so find but for a chance remark of one of the witnesses testifying concerning the speech. Thus, employee Ware stated that Grossberg "told us that he was calling us together because we had been asking him about the raises. " I have no testimony before me to contradict Mrs. Ware's statement that inquiries had been made by the employees concerning the raise. If, then, they had been asking about the raises, it is quite logical to expect Grossberg would answer their questions. And this he did. It was certainly fortuitous that questions about wage coincided with the appearance of the Union in front of this establishment. But be that as it may, as the record stands, it was the employees who generated the subject matter of wages, not Respon- dent. Upon the foregoing, therefore, any conclusion that the Union's appearance motivated the wage raise speech would be pure speculation on my part. Notwithstanding the peculiar circumstances under which Grossberg gave his speech in which he explained the failure to grant wages and gave his assurances for future adjustments and linked this with an exortation to vote in the upcoming election, I cannot substitute my suspicions, however lively, for legal evidence and reasonable inferences drawn from it that Grossberg thereby intended to interfere with, restrain, or coerce its employees. Nor in the posture of the employees having asked about the raises, can it be said that the truthful and full answer to their inquiry would have the tendency of causing such results. What has been said above concerning the legal conse- quences of Grossberg's speech applies with equal force to the raises given to the employees upon the termination of the freeze period in mid-November 1971. For, if it is proper, as I find it be, to explain the effects of the wage raise freeze and to give assurances of action to be taken when it is lifted, certainly it would be no less proper to implement what has already been properly assured. I accordingly conclude and find that Respondent has not interfered with, restrained, or coerced its employees and I recommend that the complaint be dismissed in its entirety. D. The Supervisory Status of the Election Observer It has been alleged that the Respondent selected a supervisor, Mrs. Gladys Reeves, as its official observer in the election held in Case 14-RM-414, thereby adversely affecting the outcome of the election. The basis for this objection finds no solid support in the Board's Rules and Regulations. Thus, Section 102.69, Series 8, provides "Any party may be represented by observers of his own selection, subject to such limitations as the Regional Director may proscribe." I have not been advised of any 311 regulation promulgated by the Regional Director for the Board's Fourteenth Region that would proscribe the use of supervisory personnel as observers , nor does the record show that in this instance the Regional Director objected to the selection of Mrs . Reeves . While the Board has traditionally discouraged the designation of supervisory employees for this purpose ,2 it has qualified its position. Thus, in Westinghouse Electric Corporation, 118 NLRB 1625, 1626, the Board found to be without merit and overruled an objection to the designation of a supervisor by an employer as its observer at a Board conducted election. In finding it unnecessary to resolve the issue of the employees' supervisory status the Board overruled the objection for the reason that the objection had not been raised until after the election. So, in the instant case objection to Gladys Reeves was not raised until the Union filed its formal objections with the Regional Director. There is no evidence whatsoever that the status of the employer's observer was ever challenged at or prior to the election. Accordingly , and within the purview of Section 102.69 of the Rules and Regulations, I find that the employer's designation of Gladys Reeves and her partici- pation in the election in that capacity was a matter within the sound discretion of the Regional Director, it having not been objected to by the Union. In any event, I have carefully studied the duties which Gladys Reeves performed in her capacity as bookkeeper and secretary to the administrator of Respondent 's facility. While it is true that on occasion she conveys orders and instructions of Grossberg to individual employees, in his absence carries out certain previously assigned orders to employees, and that she preliminarily interviews and screens applicants for employment prior to their hire by Grossberg, I nevertheless find that these duties are purely administrative , sporadic, subject to Grossberg's final check, and performed in the nature of a "straw boss," which indeed she was , in her capacity as "the boss' secretary." Because I am not persuaded that Gladys Reeves' supervisory status has been established on this record I conclude and find that regardless of any proscription against the designation of supervisors as election observers Gladys Reeves' designation as such, as an employee of the Respondent , and not its supervisor, was entirely regular and proper . I accordingly overrule the objection to the election based upon her designation as observer. Upon the basis of the foregoing findings of fact, conclusions of law and the entire record herein, I hereby issue the following recommended: ORDER It is recommended that the complaint in this matter be dismissed in its entirety. IT IS ORDERED that Case 14-RM-414 be severed from Case 14-CA-6520 and that it be remanded to the Regional Director for further action not inconsistent with the findings and conclusions herein. 2 Burrows and Sanborn, Inc, 84 NLRB 304, The Ann Arbor Press, 88 NLRB 391; Peabody Engineering Co, 95 NLRB 952