Forbes Pavilion Nursing Home, Inc.

802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Forbes Pavilion Nursing Home, Inc. and National Union of Hospital and Nursing Home Employees, a Division of RWDSU, Local 1199-P, AFL-CIO. Cases 6-CA-5140, 6-CA-5446, and, 6-RC-5534 August 9, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On March 24, 1972, Trial Examiner Anne F. Schlezinger issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and General Counsel filed an answering 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 authority in this proceeding to a three-member panel. The Board has considered the record I and the Trial Examiner's Decision in light of the exceptions and briefs and has decided to affirm the Trial Examiner's rulings, findings,2 and conclusions, and to adopt her 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 Respondent, Forbes Pavilion Nursing Home, Inc., Pittsburgh, Pennsylvania, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order. It is hereby directed that as part of his investigation to ascertain representatives for the purposes of collective bargaining with the Employer, the Region- al Director for Region 6 shall, pursuant to the Board's Rules and Regulations, Series 8, as amended, within 10 days from the date of this Direction, open and count the ballots of Norbert Harbin, Walter Harbin, Joan Harbin, Edward Sydlowski, and Cylesta Jordan and thereafter prepare and cause to be served on the parties a revised tally of ballots, including therein the count of said ballots. If the Petitioner receives a majority of the valid ballots cast, according to the revised tally, the Regional Director shall certify it as the exclusive bargaining representative of the employees in the appropriate unit. If the Petitioner does not receive a majority, the following shall become applicable: IT IS FURTHER ORDERED that the election conducted in Case 6-RC-5534 on March 26, 1971, be, and it hereby is, set aside, and that said case be, and it 198 NLRB No. 113 hereby is, remanded to the Regional Director for Region 6 to conduct a new election when he deems the circumstances permit a free choice of a bargain- ing representative. [Direction of Second Election and Excelsior foot- note omitted from publication.] i Respondent has requested oral argument This request is hereby denied as the record , the exceptions , and the briefs adequately present the issues and positions of the parties 2 We find it unnecessary to pass upon the Trial Examiner's finding that Respondent violated Section 8(a)(I) by prohibiting employee Hooker from engaging in union activities at any time on Respondent 's premises This allegation is cumulative and unnecessary to the remedy, and accordingly we need not reach the issues raised by the Respondent's exceptions to this finding Respondent's grant of retroactive wage increases, paid on the date of the election and clearly made for the purpose of discouraging union membership and activity , by itself precluded the holding of a fair election and justified the sustaining of Petitioner 's objections to conduct affecting the results of the election We hereby correct the Trial Examiner's inadvertent error in setting forth the period of employee Robert Popp's employment by Respondent The corrected dates are September 1969 through July 1970 TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE ANNE F. SCHLEZINGER, Trial Examiner: Upon a charge and an amended charge filed respectively on August 13 and December 29, 1970, in Case 6-CA-5140, and a charge and an amended charge filed respectively on March 31 and November 16, 1971, in Case 6-CA-5446, by National Union of Hospital and Nursing Home Employees, a Division of RWDSU, Local 1199-P, AFL-CIO, referred to herein as the Charging Party or the Union, the General Counsel, by the Regional Director for Region 6, issued on June 30 an order consolidating cases and a consolidated complaint, and on November 16, 1971, an amended consolidated complaint. The amended consolidated com- plaint alleges that Forbes Pavilion Nursing Home, Inc., referred to herein as the Respondent or the Employer, interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, in violation of Section 8(a)(1) of the Act, by interrogating and threatening employees, promising and granting benefits, prohibiting union solicitation at any time on the Respondent's premises, and engaging in surveillance and/or creating the impression that the union activities of its employees were being kept under surveillance. In its answer to consolidated complaint and answer to amended consolidated complaint, the Respondent denies that it has engaged in the alleged unfair labor practices. The order consolidating cases provides that, the Region- al Director having directed a hearing with respect to objections and challenges in Case 6-RC-5534, that case be consolidated with the complaint cases herein for the purposes of hearing, ruling, and decision by a Trial Examiner; that thereafter Case 6-RC-5534 be transferred to and continued before the Board; and that the provisions of Sections 102.46 and 102.69(e) of the Board's Rules and Regulations shall govern the filing of exceptions. Pursuant to notice, a hearing in the consolidated proceeding was held before me at Pittsburgh, Pennsylvania, on December 2 and 3, 1971. All parties appeared at the FORBES PAVILION NURSING HOME hearing and were afforded full opportunity to present evidence and to examine and cross-examine witnesses. Briefs were received from the General Counsel and the Respondent on or about January 17, 1972, which have been fully considered. Upon the entire record in these cases, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent, a Pennsylvania corporation with its principal office in Pittsburgh, Pennsylvania, is engaged in the business of operating a proprietary nursing home in Pittsburgh. During the 12-month period immediately preceding the issuance of the amended consolidated complaint, the Respondent received in excess of $1 million in gross revenues. During the same period, the Respondent received goods and products valued in excess of $5,000 from outside the Commonwealth of Pennsylvania for use at its Pittsburgh facility. The Respondent in its answer admits, and I find, that the Respondent, at all times material herein, has been an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED I find, as the Respondent's answer admits, that National Union of Hospital and Nursing Home Employees, a Division of RWDSU, local 1199-P, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Surveillance The Union began organizing the Respondent's employ- ees in May 1970. Organizers distributed leaflets and solicited membership near the entrances to the Respon- dent's premises on frequent occasions for a period of months. An election petition was filed by the Union on July 10, 1970, and an election, first scheduled for December 28, 1970, was held on March 26, 1971. (1) In June 1970, shortly after the organizing activities began, Mary Fareri, the administrator of the Respondent in overall charge of its operations, admittedly photo- graphed the union organizers from the front doorway of the Respondent's premises. Her assistant, Baher, was with her at the time. Fareri testified 1 that she took the picture because she had seen the organizers on the Respondent's property, at times sitting on a planter, and thought she might need proof of this "in the event that we were to seek an injunction." Kay Tillow and Helen Lyles, two of the union organizers, testified that they were standing on the sidewalk, not sitting on the planter, when Fareri photo- graphed them, that Tillow was at the time talking to an employee, and that other employees were going in and out on a change in shifts. There is no evidence that the Respondent ever said anything to the organizers about I Baher was not called as a witness. 2 N.L.R.B. v. Associated Naval Architects, Inc., 355 F.2d 788, 791 (C.A. 803 being on company property, or that the Respondent sought an injunction at any time during the months of organizing activities. The picture Fareri took was not placed in evidence. (2) Fareri also admitted that she stood in the doorways and on the balcony of the Respondent's premises and saw the organizers passing out leaflets and talking to employees arriving or leaving during shift changes, and that she knew the two employees, Robert Popp and Martha Hooker, who were most active on behalf of the Union, "Because they were in with the organizers outside the building as often as they had the time to be with them. During breaks, after working hours and whatever." Fareri denied that she stood in the doorways or on the balcony for the purpose of observing the union activities, but offered no explanation for being there at these times other than that "my responsibility is to oversee Forbes Pavilion and I was performing my responsibilities." I found Fareri an evasive and unconvincing witness. Tillow and Lyles impressed me as frank and reliable witnesses, and I credit their testimony regarding the photographing incident. Moreover, as the Board has held, "it is the act of photographing itself that had the tendency in these circumstances to intimidate." I find further, on all the relevant evidence, that Fareri stood in the doorways and on the balcony in order to observe the union organizing activities, and that her conduct in standing and observing these activities and in photographing them "were plain violations of the Act, whether or not they were coercive in actual fact."2 Accordingly, I conclude and find that Faren engaged in surveillance and created the impression that the union activities of the employees were being kept under surveillance, and that the Respondent thereby interfered with, restrained, and coerced its employ- ees in the exercise of the rights guaranteed in Section 7 of the Act, in violation of Section 8(a)(1) of the Act. (3) The complaint also alleges surveillance by Ronald Harbin, the Respondent's building superintendent. Harbin, who was no longer in the Respondent's employ at the time of the hearing, testified that his work included building and grounds maintenance, that he was frequently in a position while engaged in such work to observe the union organizing activities going on near the Respondent's premises, and that he sometimes talked to the organizers. I find the evidence insufficient to establish that Harbin was engaging in surveillance of the organizing activities in violation of the Act, and shall recommend dismissal of these allegations of the complaint. B. Threats (1) Robert Popp, who was employed by the Respondent from September to July 1970, was signed up by one of the union organizers in May 1970 . He obtained additional cards, and testified that he signed up about 25 employees in 2 or 3 months. Popp also testified that in late May or early June he was called, to the office of Helen Doyle, who was then the Respondent's housekeeper and an admitted supervisor, and that Doyle said she had a message from 4): Central Power & Light Co., 173 N LRB 287. 293. American National Stores, 195 NLRB No. 3. 804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Fares that he could not solicit for the Union at any time on the Respondent's premises and that, if there were one more report of such activity, he would be discharged on the spot. Doyle, who had left the Respondent's employ, was called as a witness by the Respondent. She testified that Popp was the strongest supporter of the Union in her department; that she told Fareri she was going to tell Popp to stop his "Union activities on working time and around the building because it was showing up in his work"; that she told Popp "not to do the things that he was doing in the building"; and that when Popp, who was working a great deal of overtime, "said something about on his own time," she told him he needed to rest on his own time. Doyle denied that she threatened any employee with discharge, or said anything to Popp about discharge, but admitted that she recommended to Fareri that Popp be discharged because "It had just gotten to the point where with all this stirring around that I was at my end, and I said well I would like to have him or let him go." Fares, who identified Popp as one of the two employees most active in the Union and seen frequently with the union organizers, also testified that his activity was reported to her by some employees and by some supervi- sors, but not by Doyle. She then admitted Doyle did talk to her at one time about Popp, and that on "one occasion I told Mrs. Doyle that she was to tell Mr. Popp that he was not to engage in union activities during his working time." I found Popp a candid and forthright witness and credit his testimony. Accordingly, I find that Doyle, as she admitted, told Popp he was prohibited from engaging in union activities at any time on the Respondent's premises and, further, that Doyle, as Popp credibly testified, threatened him with discharge if he did not comply with this prohibition. About a week later, Popp and some other employees were, as he testified, "sitting in the cafeteria before working hours. . . . There was me and Pearl Dawson, Mary Ritinger and a couple of other employees, I can't think of their names, we were sitting there and Miss Fareri came down the hall, looked in and she told me there were three people let go from Presbyterian University for doing what I was doing, and I said the only thing I am doing here is talking. And she said bear that in mind and she turned and walked away." Fareri testified, on examination by Respondent's coun- sel, that "Mr. Popp had been at the rear entrance of the building talking with union organizers, and then came into the building with a hand full of leaflets and commitment cards and he met with a group of employees in the cafeteria, every one of them were on working time and they were having a discussion about the union. And I cautioned Mr. Popp that since he was on duty that this was not permitted. He was not to do this on working time. . . . I do recall having told him that he was not to solicit for the union on working time." On examination by the General Counsel about this matter, Fareri also recalled that "I told Bob Popp . . . that he was not to solicit for the union on working time and that there had been two employees fired from Presbyterian Hospital for similar activities. . . . That they hadn't been recalled." While she admitted that employees who come in early sometimes go to the cafeteria and talk there, she maintained that this incident occurred during the working hours of Popp and of the employees with him. Her remarks, however, by her own testimony, were addressed only to Popp and did not include a directive that he and the other employees get to work. On the basis of the demeanor of the witnesses and the totality of the evidence, I credit Popp's testimony that this incident occurred before he and the employees with him were scheduled to begin work. I find further that Fareri singled him out of the group because he was the one she believed to be promoting the Union. I am convinced, and find, in all the relevant circumstances, that Fareri's statements to Popp that he was not to engage in union activities "on working time" were intended by Fareri, and understood by Popp, to mean at any time while on the Respondent's premises, and that her references to dis- charges for such activity at another establishment consti- tuted implied threats of discharge if he persisted in his union activities at any time on the Respondent's premises. It is apparent, therefore, and I find, that the Respondent prohibited union activity at any time on the Respondent's premises under penalty of discharge, although the record shows that employees were permitted to and did converse with one another while at work. Furthermore, Fareri testified, the Respondent had never "established a rule at the Pavilion that there will be no solicitations, no selling during working hours on Pavilion time" as "we have tried to be kind to people," and the record shows that there was widespread selling, with the knowledge of supervisors, of cosmetics, raffle tickets,3 and other products. (2) Mary Blackmann was employed as a maid in the housekeeping department from February 17 to late July or early August 1970. She testified that one day in July Doyle asked her if she saw the union girl outside; that she replied she came in the back door so did not, and then asked what Doyle thought about the Union; and that Doyle replied: . . if they get in why you aught make more money but think how hard you are going to be working because they are going to lay girls off and they are not going to have enough money to pay everybody what the union is going to give them and you are going to be doing your job and other jobs and you are going to be working much harder. And she said she didn't see where it was going to help us none, so I just said to her, I guess not, and I just walked out of her office, I was cleaning her office at the time." The Respondent did not cross-examine Blackmann. Doyle's testimony about this matter, on examination by the Respondent, was as follows: Q. Did you ever have any conversation with Mary Blackman? About the union? A. Well other than she was talking about the union and I said well, Mary that is up to you, it is your own ' Fares testified that she bought some candy bars once from a night A No aide, but did not recall any other employees ever asking her to buy Q Did you win a clock in a raffle within the last year or two? anything She then testified further A Yes Q Do you recall any employees asking you to buy any raffle She testified that the raffle ticket was sold to her by a nurse. tickets9 FORBES PAVILION NURSING HOME 805 business what you do, they all talked at the building, they didn't talk directly to me. Q. Did you ever threaten her with a lay off? A. I did not. Q. Did you ever threaten any employee with immediate termination if they solicited for the union on Forbes Pavilion property? THE WITNESS: No I did not. No I did not, because I didn't. I found Blackmann a more impressive and trustworthy witness than Doyle and find, in accord with Blackmann's credited testimony, that Doyle threatened that the work would be harder and there would be layoffs if the Union were successful. (3) Martha Hooker, a registered nurse, was active in the union organizing campaign although she was not in the unit here involved. It was Hooker whom Fareri identified, along with Popp, as the two employees most active in the Union and whom she saw frequently with the union organizers. Faren summoned Hooker to her office on one occasion in May 1970 and confronted her with union literature that a supervisor had taken from Hooker's desk and turned over to Fareri. Hooker maintained that she had the literature available for employees to read on their own time. Fareri testified that "I did tell her that she was not to have this literature available for employees to read during their working hours, and I would retain it in my office and she could avail herself of it after she was off duty'. I told her that she was not to solicit during working hours." Fareri also told Hooker she had in her office a transcript of the representation case hearing which anyone who wished to do so could read. She testified that she did so because some of the union literature quoted parts of this record out of context and "I felt that Miss Hooker played a part in this." Fareri testified, on examination by Respondent's coun- sel, that on another occasion, in a conversation about a claim of Hooker for overtime pay, "I did ask her how much of that time she had spent in union activities while on duty. . . . She said as she had continuously, she did not spend her time with union activities on duty. . . . I was aware that she was actively engaged in these activities while she was supposed to be working." Fareri testified further that she told Hooker she could prove this, and explained in her testimony that the night supervisor told her Hooker talked to other personnel "on several occasions while they were on duty, and sometimes while she was on duty, but sometimes she wasn't because she was there early to talk to them." Her testimony continued as follows: Q. (By Mr. Scheinholtz) Did you in words or in substance ever tell Miss Hooker that you would fire her if she continued to engage in union activities? A. Yes I did. Q. You did? A. Yes. Q. On working time or on nonworking time? A. On working time. Q. Did you ever tell her in words or in substance that if she conducted these activities on non-working time that she would be fired? A. No I did not. 'Hooker was paid for 1 hour of the 1 hour and 35 minutes of overtime she claimed on this occasion. I find that Faren prohibited Hooker from engaging in union activities at any time on the Respondent's premises, and threatened Hooker with discharge in the event of failure to comply with this prohibition. I find, therefore, on the basis of the foregoing and the entire record, that Faren ,and Doyle, while permitting employees to sell products and engage in other types of nonunion solicitation, prohibited employees from engaging in union activities at any time on the Respondent's premises and threatened discharge for failure to comply with this prohibition,4 and that Doyle threatened harder work and layoffs if the union campaign were successful. I conclude and find that the Respondent thereby interfered with, restrained, and coerced its employ- ees in the exercise of the rights guaranteed in Section 7 of the Act, in violation of Section 8(a)(1) of the Act.5 (4) Faren held meetings of employees, two on March 19 and two on March 24, which she testified were "concerning the union election . . . to be held on March 26, 1971," and at which she used prepared texts based on speeches made prior to an election about 2 years earlier. She testified variously that she read the texts, that she spoke from notes, that she did both, that she added nothing to the prepared texts, that at some meetings she added responses to employee comments, and, as to a number of questions counsel for the Charging Party asked Fareri about these meetings, that "I don't recall." Faren explicitly denied, however, that her remarks included the threats of changes in working conditions in the event of a union victory that were attributed to her by some of the employee witnesses. It is clear from the texts of the speeches and Fareri's testimony that she expressed the Respondent's opposition to the Union, referred to the economic and other advantages of working for the Respondent, and urged the employees to vote against the Union. In view of the variances and contradictions in the employee testimony as to what Farerf said, however, and on the record as a whole, I find that the evidence does not establish that Fareri made the alleged threats in these speeches.6 Accordingly, I shall recommend dismissal of these allegations of the complaint. C. Promises and Grants of Benefits The Respondent's wage policy included automatic increases every 6 months during the first 3 years of employment, and merit increases annually thereafter. I See Comet Rice Mills Division, 195 NLRB No 117, in which the Board recently held. "We regard a threat of job loss to be a serious deterrent to organizational activity This is especially so where, as here, it is made in the context of other expressions of hostility to unionization, albeit permissible, and is addressed to the single employee identified by management as an active solicitor of other employees on behalf of the Union " 5 N L R B v Miller-Charles & Co, 341 F 2d 870, 874 (C A 2), Campbell Soup Company v N L R B, 380 F 2d 372 (C A 5) Crystal Tire Co, 165 NLRB 563, Varo, inc, 172 NLRB No 236, Texas industries, inc, 175 NLRB 1093. Goodyear Tire & Rubber Co, 195 NLRB No. 19, Daniel Construction Company, Inc, 195 NLRB No 45, Comet Rice Mills Division, supra 6 While Farerf at one point testified. "I did threaten them with more strenuous working conditions;' I am convinced from the context of this reply, a series of denials of alleged threats, that this was not an admission but a typographical error in the transcript 806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Increases were given on or about the anniversary date of the employee's hire. The automatic increases were within fixed rate ranges depending upon classification. The amounts of merit increases were determined by Fareri and her assistant, Baher. The Respondent also at times granted general increases. The notice set forth below, addressed to all the Respondent's employees and signed by Fareri, with the closing "In your best interest," was dated and posted on July 4, 1970: The management of Forbes Pavilion is well aware of the difficulty we all have in keeping up with the increase in the cost of living. We have always attempted to keep pace with increasing costs by giving general increases to all of our employees, in addition to regular incremental increases which they have earned. As of June 28, 1970, in keeping with our past policies, each of our employees will receive an increase in their hourly rate in an amount that it is possible for us to pay at this time. We believe this increase to be fair and anticipate circumstances in the near future that will enable us to give an additional pay increase. We have been working on a Life Insurance program for the employees of Forbes Pavilion for a considerable length of time. This program will be in effect within three months. Service Award pins for employees with three or more years of service are being prepared by the jeweler. (These pins have been in process for several months.) An "Award Dinner" date will be announced when the pins are made. I wish to take this opportunity to thank each of you for your cooperation and interest in providing care for "our" patients at Forbes. I know that all of the employees, especially those who have been with us for a long period of time really believe that there is something more to working at Forbes than just "showing up" for work on their scheduled days. Fareri explained in her testimony, as to the grant of a general increase effective June 28, that the Hospital Council had recommended an increase, and that the Respondent, although not a member, had in the past granted increases recommended by the Council in order to maintain its competitive position in the job market. The Council's recommendation was made, however, as Fareri admitted, on May 1, more than 2 months before the Respondent announced and put into effect its general wage increase. Moreover, the July 4 notice indicated that an additional increase was anticipated "in the near future," although the Respondent was admittedly in such poor financial condition that it laid off a number of employees and closed one floor of the nursing home during the T The allegation of the complaint regarding Fareri's announcement to the employees of "a future pay increase and the institution of a new insurance program in order to dissuade them from joining, supporting or otherwise assisting the Union" does not include the announcement of a general increase or the promise of service pins to be presented at an award dinner These matters were contained in the same notice, however, were fully litigated, and the issues as to the announcement of the general wage increase were discussed in the briefs of both the Respondent and the General Counsel summer of 1970. Regarding the announcement of the insurance program, which included group life and medical provisions, Fareri testified that this had been planned for some time, but she admitted that the July 4 notice was the I first announcement to the employees of this insurance program, which was promised to go into effect within 3 months and did become effective October 1, 1970. This notice was also the first announcement of the grant of service award pins that were being prepared by a jeweler land were to be presented at an award dinner. No such pins had been previously awarded and no such dinner had been previously held. The pins were awarded at a dinner held in ,February 1971, about 7 months after the July 4 announce- ment. It thus appears that the Respondent on July 4, 1970, (1) announced the grant of a general wage increase, (2) I promised an additional increase to be granted "in the near future," (3) announced for the first time an insurance program that went into effect about 3 months later as (promised, and (4) announced service award pins being (prepared by a jeweler that were to be presented at an award dinner, which promise was carried out about 7 months later.? These announcements and promises were made, moreover, at a time when the Respondent was in poor financial condition. Fareri also in March 1971 gave I I employees retroactive wage increases. She testified that Toluka, a maintenance employee, about February 26 gave her a week's notice in writing of his resignation; that she spoke to him about his resignation on March 5 and learned then that one reason for his leaving was the failure to receive an incremental raise when it became due; that she assured him she would ,check and, if this were so, he would receive the increase (retroactively even if he left; and that thereafter a retroactive increase was given Toluka on March 6, 1971.8 Fareri testified further that after an investigation was !made as to other possible omissions, she granted 10 additional retroactive increases, which became effective in ,the pay period ending March 20, 1971, a few days before the election, and were paid on March 26, the day of the -election. Farert testified that the Respondent sometimes announced general increases but that she did not know of any supervisors telling employees of other increases. On this occasion, however, Fareri testified, she called each of the 10 recipients to her office between March 5 and 20 to tell them of their retroactive increases. All 10 employees who were given retroactive increases worked in the dietary department. The union organizers had achieved considerable success in that department and had signed up a majority of its 18 employees at the time these increases were given. Although the retroactive increases were given after checking the records for errors-Farert testified variously that she or a clerk or both 8 Faren testified at one point that Toluka gave her the letter of resignation but she did not look at it when he brought it in, and at another that she was not present when he left the letter on her desk She also testified at one point that she called Toluka into her office to ask why he was resigning. at another that she made no attempt to get in touch with him after reading his letter, but he called and made an appointment to see her on March 5 Toluka, who has been reemployed by the Respondent, was not called to testify FORBES PAVILION NURSING HOME 807 checked the records-errors were made in giving these increases. Faren admitted that such an error was made as to Dolores Belt; that Belt was hired on August 20, 1967, and should have received a merit increase on August 20, 1971; that instead a retroactive increase effective as of February 20, 1971, was given Belt on March 26, the day of the election. Farert also admitted that she thought at one time increases had been given to Mary Lovas and Willia Moore in error, but then determined their increases were proper in view of changes that had been made in the status of these employees. Before she learned this, as she testified, "I did tell Mary Lovas that I thought that we had made an error in her case, however, since I had already told her that she was receiving this money she would receive it," that this was "before the election," and that Lovas was paid retroactively to February 20, 1971. Faren explained in her testimony that the oversights of 10 out of the 18 in the dietary department occurred because Connie Caputo, an admitted supervisor, was never able, during the 2 years she was kitchen manager, to master the mechanics of the automatic incremental raises, and Baher, who was in overall charge of such matters, was out ill for an extended period from late in January until late in March 1971. Fareri admitted, however, that some dietary department employees had received their increases while Baher was out sick, and that one of the dietary department employees received a retroactive increase in March 1971 going back as far as October 1970. She also admitted that although Ronald Harbin, who had been for about 5 years the building superintendent in charge of the housekeeping and maintenance departments, had no problem with payroll matters, Toluka, who was under Harbin's supervi- sion, had been overlooked. She also testified that although "I have not gone back and studied each employee in each department," to her knowledge no employee in any department was overlooked for increases other than Toluka in maintenance and the 10 in the dietary depart- ment. It developed, however, when she was examined on the basis of records of the Respondent, that employees in other departments had been overlooked but did not receive their retroactive increases until after the election. Schlienke, a maintenance employee, for example, received on April 9, 1971, an increment due on December 27, 1970. Fareri testified further that although Baher, who was in charge of such matters, has been her assistant administra- tor since 1967, was a certified public accountant, and had never been found in error as to any increases prior to March 1971, she gave the retroactive increases before he returned to work although he apparently returned shortly after these increases were given. Farert also testified that she spoke to the head of the board of trustees about the retroactive increases in March 1971, but that there was no written report or communication with regard to this matter. The record shows, therefore, that the Respondent, shortly after the Union began to organize its employees, and at a time when its financial situation was poor, announced and granted a general wage increase,9 promised another increase in the near future, announced a new insurance program10 and put it into effect as scheduled, and announced and later carried out the preparation of service pins by a jeweler and their presentation at an award dinner. The Respondent also, Immediately prior to the election, gave retroactive increases effective on the day of the election to 10 of the 18 employees in the department in which a strong union interest had been shown. I am convinced, and find, that the timing and other circum- stances of this conduct warrant "an inference that it was designed to defuse the employees' union activity, particu- larly in the absence of evidence of any legitimate economic reason for the timing of the change," 11 and that the Respondent's "series of specially timed announcements ... were designed to, and did, interfere materially with the organizational rights of its employees." 12 Fareri testified that she did not know when she gave the retroactive increases which of the employees in the dietary department had signed union cards. I find such knowledge immaterial in the present circumstances. The promises and grants of benefits were manifestly designed to impress upon all the employees that such benefits were forthcoming from the Respondent without the intercession of a union representa- tive. As the Supreme Court has held: "The danger inherent in well-timed increases in benefits is the suggestion of a fist inside the velvet glove. Employees are not likely to miss the inference that the source of benefits now conferred is also the source from which future benefits must flow and which may dry up if it is not obliged." 13 I find, in conclusion, that the Respondent promised and granted benefits to its employees in order to discourage membership in and activities on behalf of the Union, and that the Respondent thereby interfered with, restrained, and coerced its employ- ees in the exercise of their Section 7 rights, in violation of Section 8(a)(1) of the Act.14 IV. THE OBJECTIONS TO THE ELECTION As noted above, a petition for an election was filed by the Union in Case 6-RC-5534 on July 10, 1970. A Decision and Direction of Election was issued on Novem- ber 30, 1970, and an election was held on March 26, 1971, in the following appropriate unit of the Employer's employees: All employees in the nursing, housekeeping, dietary, and engineering and maintenance departments, includ- ing licensed practical nurses and the activities director, but excluding registered nurses, the social worker, the payroll clerk, bookkeepers, the medical records clerk, switchboard operators, and other office clerical em- 9 See Standard Fittings Co, 173 NLRB 42, 48, in which the Board, holding a particular wage increase unlawful, found "totally unpersuasive" the "attempted justification of the wage increase during a period when the Company was in a 'tight financial situation' " See also Tower Records, 182 NLRB 382, enfd 79 LRRM 2736 (C A 9) 10 See Schuckman Press, 172 NLRB No 256, holding an announcement of insurance benefits during a union campaign unlawful although the insurance program had been initiated prior to the advent of the union II American National Stores, Inc, 195 NLRB No. 3 12 Bryant Chucking Grinder Company, 160 NLRB 1526, 1529, Bally Case & Cooler, Inc, 172 NLRB No 106 I I N L R B v Exchange Parts Co, 375 U S 405, 409 14 M & W Marine Ways, Inc, 165 NLRB 191, Schuckman Press, supra, N L V Casino Corp, d/b/a Silver Nugget. 174 NLRB 42, 48, Gem Knits, Inc, 174NLRB449,452 $08 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployees, and guards, professional employees, and supervisors as defined in the Act. A tally of ballots showing the following results was duly served on the parties: 1. Approximate number of eligible voters-121 2. Void ballots-0 3. Votes cast for Petitioner [Union]-45 4. Votes cast against participating labor organiza- tion-49 5. Valid votes counted-94 6. Challenged ballots-6 7. Valid votes counted plus challenged ballots-100 8. Challenges are sufficient in number to affect the results of the election On March 29, 1971, the Union filed timely objections to conduct affecting the results of the election. The Regional Director, following an investigation, on June 30, 1971, consolidated this case with the complaint cases, and ordered a hearing to be held in the consolidated proceed- ing to resolve the challenges and the objections. A. The Challenged Ballots Of the six ballots challenged at the election, which were sufficient in number to affect the results, four were challenged by the Union and two by the Employer. Prior to the hearing herein, the Union withdrew all four of its challenges, and at the hearing the Employer withdrew one of its two challenges. The parties agreed that the Employer had properly challenged the ballot of Antonio Vecchio. The remaining five ballots to which challenges have been withdrawn are sufficient in number to be determinative of the election results. Accordingly, I shall direct that the ballots of Norbert Harbin, Walter Harbin, Joan Harbin, and Edward Sydlowski, which had been challenged by the Union, and the ballot of Cylesta Jordan, which had been challenged by the Employer, all of which challenges have been withdrawn, shall be opened and counted. B. The Objections The Union filed timely objections to conduct affecting the results of the election alleging that the Employer granted wage increases to certain employees on the day of the election, and threatened employees with economic reprisals in order to discourage employees from voting in favor of the Union. Counsel for the Union stated at the hearing that he would present no evidence with regard to the objections to the election as the evidence presented in the complaint proceeding in his view sufficiently covered the objections. I have found above that the Employer engaged in various unfair labor practices, including, during the critical period between the Union's filing of the petition for an election and the day of the election, Fareri's conduct in prohibiting Hooker from engaging in union activities at any time on the Employer's premises, threatening Hooker that employees who did not observe this prohibition would be discharged, and giving 10 employees in the dietary department, in which a majority of the employees had signed union cards, retroactive increases effective on the day of the election, in order to discourage the employees' union membership and activities.15 I find that such conduct by the principal official of the Employer during the critical period created an atmosphere which precluded a fair election and effectively denied the employees their statutory right to exercise a free choice in the election.16 I shall recommend, therefore, that the five ballots to which the challenges were withdrawn be opened and counted, and that the Regional Director thereafter prepare and cause to be served on the parties a revised tally of ballots, including therein the count of the said five ballots; that if the Union receives a majority of the valid ballots cast, according to the revised tally, the Regional Director shall certify it as the exclusive bargaining representative of the employees in the appropriate unit; and that if the Union does not receive a majority, the election conducted in Case 6-RC-5534 on March 26, 1971, shall be set aside and a new election held when the Regional Director deems that the circumstances permit a free choice of a bargaining representative. i 7 V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with its operations de- scribed in section 1, above, have a close, intimate, and substantial relation 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. VI. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices violative of Section 8(a)(1) of the Act, I shall recommend that it be ordered to cease and desist therefrom and from in any like or related manner interfering with its employees' Section 7 rights, and that it take certain affirmative action designed to effectuate the policies of the Act. I shall also recommend that nothing contained in the recommended order shall be construed as requiring the Respondent to revoke any wage increases or other employee benefits previously promised or granted.18 Upon the basis of the foregoing findings of fact, and upon the entire record, I make the following: CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in com- merce 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. 15 1 find the evidence does not establish that Doyle's threats to N L V Casino Corp, d/b/a Silver Nugget, 174 NLRB 42, 45, Tower Records, Blackmann were made in the critical period While Blackmann testified that supra the conversation occurred in July, before her layoff in late July or early 17 Gary Aircraft Corporation, 193 NLRB No 21 August, she was unable to state how long before iN Exchange Parts Co, supra, Yale Rubber Manufacturing Company, 193 16 Wilkinson Mfg Co v N L R B, 456 F 2d 298 (C A 8, March 1972), NLRB No 24 FORBES PAVILION NURSING HOME 809 3. By engaging in surveillance of its employees' union activities and creating the impression that such activities were being kept under surveillance, prohibiting employees from engaging in union activities at any time on the Respondent's premises, threatening discharge for failure to comply with this prohibition, threatening harder work and layoffs if the Union were successful, and promising and granting benefits in order to discourage membership in and activities on behalf of the Union, the Respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, and has thereby engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record herein, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 19 purposes of collective bargaining with the Employer, the regional Director for Region 6 shall, pursuant to the Board's Rules and Regulations, Series 8, as amended, within 10 days from the date of this Direction, open and count the ballots of Norbert Harbin, Walter Harbin, Joan Harbin, Edward Sydlowski, and Cylesta Jordan, and thereafter prepare and cause to be served on the parties a revised tally of ballots, including therein the count of said five ballots; if the Union receives a majority of the valid ballots cast, according to the revised tally, the Regional Director shall certify it as the exclusive bargaining representative of the employees in the appropriate unit; and, if the Union does not receive a majority, the election conducted in Case 6-RC-5534 on March 26, 1971, shall be set aside, and that case remanded to the Regional Director for Region 6 to conduct a new election when he deems the circumstances permit a free choice of a bargaimng representative. ORDER The Respondent, Forbes Pavilion Nursing Home, Inc., Pittsburgh, Pennsylvania, its officers, agents, successors, and assigns, shall. 1. Cease and desist from: (a) Engaging in surveillance of its employees' union activities and creating the impression that such activities are being kept under surveillance, prohibiting employees from engaging in union activities at any time on the Respondent's premises, threatening discharge for failure to comply with this prohibition, threatening harder work and layoffs if the Union is successful, and promising and granting benefits in order to discourage membership in and activities on behalf of the Union (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, except that nothing contained herein shall be construed as requiring the Respondent to revoke any wage increases or other benefits previously promised or granted. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Post at its Pittsburgh, Pennsylvania, operation copies of the attached notice marked "Appendix."20 Copies of the said notice, on forms provided by the Regional Director for Region 6, after being duly signed by the Respondent's authorized representative, shall be posted by it immediate- ly 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 the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify said Regional Director, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.21 IT IS FURTHER RECOMMENDED that the complaint be dismissed insofar as it alleges violations of the Act not specifically found herein. IT IS HEREBY DIRECTED that, as part of his investigation in Case 6-RC-5534 to ascertain representatives for the 19 In the event no exceptions are filed as provided by Sec. 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes 20 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 read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 21 In the event that this recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read "Notify the Regional Director for Region 6. in writing , within 20 days from the date of this Order , what steps the 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 WE WILL NOT engage in surveillance of our employ- ees' activities on behalf of National Union of Hospital and Nursing Home Employees, a Division of RWDSU, Local 1199-P, AFL-CIO, or any other labor organiza- tion, or create the impression that such activities are being kept under surveillance; prohibit employees from engaging in union activities at any time on our premises; threaten discharge for failure to comply with this prohibition; threaten harder work and layoffs if the aforesaid union is successful; or promise or grant benefits in order to discourage membership in or activities on behalf of the aforesaid union, except that nothing contained herein shall be construed as requir- ing us to revoke any wage increases or other benefits previously promised or granted. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed in the National Labor Relations Act. 810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FORBES PAVILION NURSING This notice must remain posted for 60 consecutive days HOME, INC. from the date of posting and must not be altered, defaced, (Employer) or covered by any other material. Any questions concerning this notice or compliance with Dated By its provisions may be directed to the Board's Office, 1536 (Representative) (Title) Federal Building, 1000 Liberty Avenue, Pittsburgh, Penn- sylvania 15222, Telephone 412-642977. This is an official notice and must not be defaced by anyone.