Dellridge Nursing Home

DELLRIDGE NURSING HOME Dellridge Associates, Inc., d/b/a Dellridge Nursing Home and Local 1115, Joint Board, Nursing Home and Hospital Employees Division. Case 22-CA- 7247 January 31, 1978 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND TRUESDALE On October 17, 1977, Administrative Law Judge Robert M. Schwarzbart issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the 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 and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions2 of the Administrative Law Judge, to modify his remedy, 3 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 Administrative Law Judge and hereby orders that the Respondent, Dellridge Asso- ciates, Inc., d/b/a Dellridge Nursing Home, Para- mus, New Jersey, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. I The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibili- ty unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. 2 The Administrative Law Judge in finding that Respondent violated Sec. 8(a)(5) relies in part on Condon Transport, Inc., 211 NLRB 297 (1974). Although Chairman Fanning agrees with that 8(aX5) finding, as in Condon Transport he does not rely on the Administrative Law Judge's dictum in Condon Transport concerning Telautograph Corporation, 199 NLRB 892 (1972). Member Truesdale, in adopting the Administrative Law Judge's Decision here, does not thereby express his approval or disapproval of Telautograp1h SiPra. 3 The Administrative Law Judge inadvertently specified interest to be paid at 7 percent; however, interest will be calculated according to the "adjusted prime rate" used by the U.S. Internal Revenue Service for interest on tax payments. See Isis Plumoing d Heating Co., 138 NLRB 716 (1962), for rationale on interest payments. DECISION STATEMENT OF THE CASE ROBERT M. SCHWARZBART, Administrative Law Judge: This case was heard in Newark, New Jersey, on March 7 and 8, 1977, on a complaint issued December 8, 1976,t based on a charge filed on October 19, by Local 1115, Joint Board, Nursing Home and Hospital Employees Division, herein the Union. The complaint alleges that Dellridge Associates, Inc., d/b/a Dellridge Nursing Home, herein the Respondent, violated Section 8(aX)(1) of the National Labor Relations Act, as amended, herein the Act, by coercively interrogating certain of its employees concern- ing the sympathies of other employees for the Union, by inducing its employees to circulate for signature a petition rejecting the Union and by promising its employees pay raises in order to unuermine their support for the Union; violated Section 8(aX3) and (1) by discharging Domenick Minella, its employee because of his continued support for the Union; and contravened Section 8(aX5) and (1) by refusing to continue to recognize and bargain collectively with the Union as the certified bargaining representative of certain of its employees; by bargaining directly with its employees; and by otherwise seeking to undermine the Union. The Respondent, in its answer, denied the commission of any unfair labor practices. Counsel for the General Counsel and the Respondent have filed briefs which have been carefully considered. Upon the entire record, including my observation of the witnesses, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The Respondent, a New Jersey corporation, is engaged in the operation of a nursing home in Paramus, New Jersey, where it provides health care and related services. During the preceding 12 months, which period is represen- tative of its annual operations generally, the Respondent derived gross revenues in excess of $100,000 from the performance of its health care and related services. During I All dates hereinafter are within 1976 unless stated to be otherwise. 234 NLRB No. 102 595 DECISIONS OF NATIONAL LABOR RELATIONS BOARD this same period of time, the Respondent caused to be purchased, transferred, and delivered to its Paramus facility goods and materials valued in excess of $10,000, of which, goods and materials valued in excess of $10,000 were transported to said Paramus facility in interstate commerce directly from States of the United States other than the State of New Jersey. In accordance with the foregoing conceded facts, I find that the Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 1. THE LABOR ORGANIZATION INVOLVED The Union is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background The Respondent, for approximately the past 5 years, has operated a nursing home in Paramus, New Jersey. Sara Winocur is the administrator and Patricia Volmer, the director of nursing and assistant to the administrator. 2 In the Respondent's food services department, Lee Starner is the dietitian, Bea Muscalini, the food services supervisor, and Mary Meyer, the chef-manager. On October 3, 1975, following an election conducted under the supervision of the Board's Regional Director for Region 22, the Union was certified as the collective- bargaining representative of a unit of certain of the Respondent's employees. 3 It was stipulated at the hearing that the unit thus certified consisted of approximately 53 employees. At the time of the events considered herein, the Respondent and the Union were negotiating the terms of a collective-bargaining agreement. While these discussions were still in progress, the Respondent, through its attorney, sent the following letter, dated October 4, to Alex DeLau- rentis, vice president of the Union: Please be advised that an issue has been raised questioning whether Local 1115 continues to represent a majority of the employees of Dellridge Nursing Home. Until this question concerning representation is resolved, the Employer desires to cancel any further contract-negotiation sessions including the session presently scheduled for October 8, 1976. The General Counsel and the Union, contrary to the Respondent, contend that the Respondent did not have a good-faith doubt as to the Union's continued majority status immediately upon the expiration of its certification year, but that the Respondent, through an unlawful course In Winocur's absence from the home, Volmer acts for her. 3 The certified unit was as follows: All service and maintenance employees employed by the Respondent at its Paramus. New Jersey, facility, including ward clerks, but excluding office clerical employees, technical employees, licensed practical nurses, registered nurses, professional employees, guards and all supervisors, as defined in the Act. of conduct, had acted to undermine the Union's support among its employees. This, Respondent denies. B. The Alleged Acts of Interference, Coercion, and Restraint I. The circulation of the antiunion petitions, coercive interrogations, and promised wage increases - facts and conclusions Robert Connelly4 testified that sometime in September he was called, via the public announcement system, to the office of Patricia Volmer, the director of nursing. 5 When Connelly entered her office, Volmer, who was alone, locked the door and asked him to sit down. She reassured Connelly that he was not in any trouble and told him that she was not allowed to speak to him about the matter that she was going to raise. She and the Respondent's home could get into trouble if this conversation were to be discovered. Volmer related that, about a year before, the Respondent had had trouble with the Union. She then stated that someone from the nursing home, an employee, a nurse's aide, or Connelly himself, who knew everybody and got along with the employees and patients, should take a petition around. There should be written on that petition that the employees of Dellridge Nursing Home do not want the Union in the home. This person would have to obtain at least 20 or 30 signatures and take the petition down to the National Labor Relations Board by himself, or herself, as the case may be, and present it there. Connelly refused to do this. Volmer, nevertheless, continued that the nursing home could not meet the Union's demands and that it would be no good to have the Union here. It would make for bad relations between employees and the owners and the administrative staff. Connelly again refused to sponsor the petition, telling Volmer that he was going to leave his job because he was not paid enough. He also stated that he would not circulate such a petition because the other employees were not getting paid enough either. Volmer declared that the home of Mr. Kenney, an owner of the Respondent, was mortgaged and that there was no money to pay. If Connelly did take the petition, and have it signed and the Union was kept out, Kenney would give a raise of $3 an hour for the people who were employed there for a year, a smaller amount to employees there for under a year and, perhaps, something could be done for Connelly. 6 At that point, to get out of her office, Connelly told Volmer that he would ask around about the Union to get the general feeling and would report back to her in a couple of days. Volmer unlocked the door. As Connelly left, she told him that this was between the two of them and that he should 4 Connelly was employed by the Respondent as an orderly from February to January 1977, when he resigned his job. While with the Respondent, he worked the 7 a.m. to 3 p.m. shift. 5 Although Connelly, in his testimony, could not recall the date of this interview with Volmer, from the weight of the evidence herein I find that it occurred on or about September 23. 6 In describing this part of the conversation, Connelly testified that Volmer did not specifically "mention any money or anything." 596 DELLRIDGE NURSING HOME not speak to anyone about this conversation. He returned to work. Connelly testified that, approximately 10 minutes after he returned to work, the loudspeaker called Selma Wil- liams, a nurses aide, to the office. Connelly did not see Williams go into Volmer's office, but he saw her approxi- mately 10 minutes later with a piece of paper in her hand. She entered the room where Connelly was working with a petition of the type that he had been asked to circulate.? Williams started to tell Connelly about the petition, but Connelly said that he already knew and she did not have to explain it to him. At that point, two other employees, a housekeeper and one of the nurses aides, Mary Scott and Lynn Williams, came down the hall. Selma called them to where she and Connelly were and asked them to sign the petition that the Union was not wanted. Williams told them that Mr. Kenney would give raises to everyone on November 3. The two women and Connelly signed Wil- liams' petition.8 The petition thereafter was circulated and, later that day, Selma Williams announced over the loudspeaker that there would be a meeting of nurses aides in the patients' dining room at 2:45 p.m. At the announced time on September 23, according to Connelly, from 15 to 18 employees gathered. Selma Williams entered the patients' dining room accompanied by about five nurses aides. Among those present were Mary Scott, Arthur Ellison of maintenance, Cathie Beattie, Enid O'Donnell, Connelly, and Domenick Minella, a dishwasher-waiter.9 Minella related that Williams told him to get the other dishwasher and a dietary aide from the kitchen and to come back to the meeting. According to Minella and Connelly, Selma Williams began the meeting by announcing that the signed petition given to her by the owners, Kenney and Camparello, that would keep out the Union, was now in Winocur's office. Williams stated that the employees would get a raise and be better off if the Union was kept out. Connelly asked how much of a raise were the employees going to get. Williams replied that she did not know. Employees Cathy Beattie and Enid O'Donnell were of the view that the employees should have a written statement from someone in charge as to how much of an hourly increase the employees were going to get. The group asked Williams to 7 The purpose of the petition. handwritten across the top, was as follows: "We, employees don't want any union." s Connelly explained his willingness to sign the petition, although he had just refused Volmer's request that he circulate it, by noting that he was planning to leave, he was indifferent and was also motivated, in part, by Williams' reiteration of Volmer's promise of a pay raise if the Union were ousted. He stated that he had declined Volmer's request because he had not liked the idea of her asking him to do such a thing. i Minella was alleged in the complaint as a discriminatee within the meaning of Sec. 8(aX3). His status will be discussed below. i0 It is undisputed that the September 23 employee meeting called by Williams, and announced by her over the Respondent's loudspeaker, was at variance with the Respondent's general policies. It was a first time that such a meeting had ever been held on working time at the instance of one employee and, apparently, was not in conformity with the Respondent's strict policies concerning the release of nurses aides and orderlies from their work areas. As Williams testified, to insure maximum patient coverage, before nurses aides take their afternoon breaks permission must be obtained from their charge nurses. The morning break and the lunch period are prescheduled by the head staff nurse on the employee's sign-in sheets. However, for the unscheduled afternoon break. permission, as noted, was go back to the office to obtain this information. Williams left, stating that she would see what she could learn from Mrs. Winocur. About 5 minutes later, Williams returned and announced that Winocur was in a negotiating session with the Union and no one in the office was authorized to give written statements. They all would have to wait until Monday to see what could be done. At that point, the meeting, which had lasted about 10 minutes, ended.' 0 After Williams had acquired 18 signatures on her petition, including her own, she placed the petition, without discussion, on Volmer's desk. Volmer, in turn, gave the petition to Winocur. HI Winocur sent the petition to the Respondent's legal counsel, on its advice. Connelly testified that, approximately 4 days after Volmer first asked him to circulate the petition, she again approached him in the employees' dining room and asked if he had heard anything further about the new job he was seeking. Connelly replied that he had not. Volmer then asked if she could speak with him in private about the other matter. When they were alone, Volmer asked Connelly if he had found out anything. Connelly replied that he had sensed a negative attitude among employees about the Union but he had not learned much. On October 4, the Respondent sent the Union the above- described letter questioning its majority and canceling further contract negotiations; on the next day, it filed a petition for an election with the Board's Regional Director for Region 22, in Case 22-RM-492. The Regional Direc- tor, however, by letter dated December 9, subsequent to the issuance of and consistent with the complaint in this matter, dismissed that petition. On November 3, Winocur and Volmer called a meeting of the Respondent's service, maintenance, and kitchen employees in the cafeteria. Winocur told the assembled employees that the petitions were in the hands of the Respondent's attorney and that perhaps the National Labor Relations Board would review the matter to find out whether the Union was interested in settling. There would be no raises until the matter was settled. Connelly then asked about the status of contract negotiations, declaring that the employees did not know what was going on. He was told that management was not allowed to discuss the matter until it was settled. required before leaving the work area. The meeting called by Williams, however, took place on working time; none of the employees who came had been required either to obtain permission or to sign out before attending. Although it had been publicly announced and Winocur and Volmer testified that they had learned of the meeting on the next day, no disciplinary action was taken as to Williams for having conducted this meeting. Contrary to the Respondent, I do not find this extraordinary session analogous to the annual meeting of certain employees to arrange for the home's Christmas party. 1' Winocur, the administrator, testified that in that period she found 3 more separate antiunion petitions under her door, with a total of 16 additional signatures. Two of these other three petitions were signed by Edward Volmer, the 16-year-old son of Patricia Volmer. Edward lived with her and worked for the Respondent as a part-time dishwasher. Edward Volmer's signature for the purpose of the above tally was counted only once. Williams testified that she had previously seen that petition, which, of the other three, had the largest number of signatures (10 names). This petition, Williams related, had been circulated independently by Gale Green, a nurses aide on the 3 to I I p.m. shift. Although Volmer received the petition circulated by Williams, she testified that she had not seen the other three petitions until shortly before the hearing. 597 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Volmer, in her testimony, asserted that she did not know Connelly very well, had had but three or four conversations with him during his employment, and under no circum- stances would have confided in him.'2 Volmer further denied that she had ever asked Connelly, Williams, or any other employee to circulate a petition to get rid of the Union, or that she had promised pay raises if the Union were to be dislodged. According to Volmer, in September she had summoned Connelly to her office pursuant to a complaint received, from a charge nurse that Connelly had refused an assign- ment to take care of a quadraplegic patient with a reputation for being difficult. On that occasion, she had told Connelly that he was putting his job in jeopardy by refusing to take care of this patient, that, if he had any reason for not wanting to meet his responsibilities, he should discuss such problems with the charge nurse. During that conversation, Connelly had described the patient as a spoiled brat to whom everyone catered. Volmer, however, had insisted that caring for this patient was a responsibility of the home, to be shared by everyone there. The interview ended when Connelly agreed to lift the patient in and out of bed and tub, conditioned upon his being assigned to this patient as seldom as possible. Connelly then returned to work. He was not written up for discipline by virtue of this or any other incident connected with his employment. Selma Williams 13 similarly denied that she had discussed her petition with management. Williams related that about 2 weeks earlier, while at lunch, she had been requested by several other employees to circulate such a petition. Employees in that group, besides Williams, included Lynn Williamson, Katy Kaps, Cathy Beattie, Enid O'Donnell, and an employee Williams remembered only as Yvonne. Williams had agreed and had written the legend at the top of the petition herself. Williams testified that she thereafter solicited signatures from various employees as they passed through her area of the Respondent's home. Accordingly, laundry employees were requested to sign the petition as they walked by Williams' desk on their way from the basement to the laundry. She similarly asked maintenance employees (in- 12 In September, Connelly had been employed by the Respondent for approximately 5 or 6 months. 13 Williams had been employed by the Respondent as a nurses aide for approximately 4 years at the time and, in point of service, was one of the most senior nurses aides in the Respondent's home. There is no evidence that she was a supervisor within the meaning of the Act. 14 Pompey, employed by the Respondent as a maintenance man for more than 4 years, testified that, at Williams' request, he had signed her petition after telling her that he was not in favor of the Union. He denied that Williams or anyone else had promised him anything in return for his signature. Although Pompey knew of the meeting of employees that later was called by Williams, he did not attend. The General Counsel contends that Pompey's testimony that he had not been promised a raise in exchange for his signature should not be credited because of certain inconsistencies in his testimony. While on the stand, Pompey initially denied having previously discussed his testimony with the Respondent's management or counsel. Pompey also averred that he had learned that a hearing was to be conducted in this matter only on the day before the hearing when he had been instructed by his immediate supervisor to attend. However, on redirect-examination, Pompey recalled that he, in fact, had discussed his testimony with the Respondent's counsel prior to this hearing. Although Pompey's testimony as to how he had learned of this hearing and the advance preparation that he had received was uneven, the substance of his cluding Reginald Pompey, 14 when she met him in the hallway) to sign the petition as they, too, passed her desk.' 5 Williams also apparently was free to leave her work area without permission to go to the kitchen to sign up the employees who worked there. When she first entered the kitchen, petition in hand, and asked Chef-Manager Meyer if she could come in, Meyer told Williams to wait until the kitchen employees were on break.'6 Thereafter, Williams returned to the kitchen during the kitchen employees' recess and solicited their signatures.' 7 Williams testified that, during the afternoon of an unrecalled date, she thereafter met with a number of employees in the patients' dining room. She had not requested permission to conduct the meeting which, she contended, did not last very long. The meeting was attended only by orderlies and nurses aides. No supervisors were present and the petition that she had circulated was not mentioned. The Union was discussed. A number of the nurses aides declared that they did not know anything about a union and were not in favor of it because the place was too small. In response to questions raised about union benefits, Williams told the group that she had seen a copy of the Union's contract and it contained a number of benefits that they already were receiving. The Respon- dent's employees, she concluded, therefore, were getting the same benefits without paying union dues and fees.'8 Williams also denied that she had told employees that, if they signed the petition, the Respondent would give them a raise. However, Williams' pretrial investigatory affidavit contained the following: No member of management promised me a raise if we got rid of the Union. I told a number of employees that we would get a raise. I believed this because I felt a raise was overdue and that it had been delayed because of the Union. When confronted by this inconsistency, Williams sought to explain that the affidavit had been written by the Board agent and that, although given the opportunity, she had not read all of it. However, she could not recall the details of her conversation with Connelly concerning the petition. testimony was presented in a straightforward manner and, by his own account, he independently was opposed to continued union representation. Pompey's testimony, therefore, is credited. Although Pompey may not have been offered a pay raise to sign Williams' petition, this finding is not extended to all other signers of that document. is Williams' desk was at the nurse's station where the charge nurse in charge of the shift was located. A number of the individuals who signed the petition did so in that area. is Williams denied having told Meyer why she was there. il Williams explained that it had not been necessary for her to obtain permission to circulate the petition because she had never really left her work station, signing up employees as they entered her general work area. Her only detours were to the kitchen, as noted above. No evidence was adduced as to whether the Respondent had an effective rule concerning solicitation on its premises. is Williams, contrary to Connelly, contended that there were only above five or six nurses aides and orderlies at the meeting, including Cathy Beattie, Enid O'Donnell, Connelly, Holly Mann, and one or two more whose names she could not remember. She could not recall if anyone from the kitchen staff also attended. Williams explained that the meeting had been called to give a number of the newer employees, who attended, the benefit of her experience as she had been there when the Union first came in. 598 DELLRIDGE NURSING HOME I do not consider Williams to be a credible witness. She did not appear to be forthright and her testimony was contradictory, not only within itself, but as to the Respon- dent's established policies. With respect to the petition, Williams, at first, related that, about 2 weeks before she began to circulate it, she had been invited to do so by a group of employees with whom she had been having lunch. As the General Counsel points out in her brief, Williams thereafter met again with much the same group of employees that had asked her to go around with the antiunion petition in the first instance, to give them the benefit of her experience as to why the Union was not beneficial. As noted, Williams initially denied having told employ- ees that the Respondent would give raises to induce them to sign the petition. However, when this was contradicted by her pretrial affidavit, Williams unconvincingly tried to avoid the inconsistency by downgrading the circumstances under which the affidavit had been prepared, and by testifying that she had not sufficiently read all of her sworn statement. Such testimony is not convincing. Williams' testimony was unique in other ways. She was the first of the Respondent's employees to call a meeting of other employees during working hours, conspicuously preempting the Respondent's public announcement system to do sods Williams' ability to conduct such a meeting openly on the Respondent's time among nurses aides, orderlies, and other employees who had not been excused from their work stations, and her freedom to circulate the petition during working time are in stark contrast to the Respondent's strict scheduling of breaktime, as outlined above, which included the requirement that permission be sought for the afternoon recess. Williams' explanation that, in soliciting signatures for her petition, she did not have to leave her work area and thus had not breached the work rules is not supported by the facts. In obtaining the signatures of the kitchen staff, Williams had found it necessary to take two separate trips to the kitchen area, having been requested on the first occasion, by Meyer to return when the employees were on break.20 It further is noted that at least some of the signatures had been obtained by Williams at the nurse's station where the charge nurse, responsible for the shift, was situated. Accordingly, Williams is not credited. Williams' activities, as found above, also had an adverse effect upon Volmer's credibility. As the management representative with overall responsibility for nursing ser- vices, Volmer had maintained a strict policy of time accountability among the members of the nursing home staff. Nevertheless, with respect to lunch and break periods and the need to clear the afternoon recess, when Williams circulated her petition and conducted her publicly an- 19 Both Winocur and Volmer testified that they had learned of the meeting on the next day. Minella, the discriminatee herein, also testified without contradiction that, about an hour before it began, he told Lee Starner, the dietitian, and Mrs. Kenney, wife of one of the owners and a full- time employee of the home, that a meeting of the Respondent's employees was going to be held that afternoon. Although both acknowledged that they already knew of the coming meeting, they otherwise were unconcerned. 2 There is no direct evidence that Meyer personally knew the purpose of Williams' visit to the kitchen. nounced employees meeting, these stern rules were disre- garded. The Respondent argues with some force that it is most unlikely that a senior administrator, such as Volmer, would have confided in a comparatively new orderly, like Connel- ly, in the manner described. Yet, as Connelly observed, Volmer had told him that she had singled him out because he knew everybody and got along with the employees and the patients. It further is noted that Connelly testified as a comparatively neutral witness. By the time of the hearing, even as he told Volmer he would, Connelly had resigned his job with the Respondent and had no continuing substantive interest in the outcome of this proceeding. Connelly's account of his talk with Volmer is further supported by the fact that Williams, in seeking signatures for her petition, used the same inducement as had Volmer with Connelly. Moreover, Volmer's denial that she previ- ously had known of the three other petitions rejecting the Union, which had been placed under Winocur's door, also is not credited. Volmer's minor son, Edward, who lived with her, had signed two of these three petitions. In view of the circumstances, it is not reasonable to find that Ed- ward's mother did not then know that he had signed these petitions. Accordingly, it is concluded from the credited, but circumstantial, 2l evidence herein, that the Respondent had solicited Connelly unsuccessfully and, thereafter, had utilized Williams as its agent to influence other employees to sign the petition rejecting the Union. It also is found that the Respondent had authorized Williams to promise wage increases to employees to induce them to sign the petition. In El Sol Mexican Foods, Inc.; et al.,22 the rule is stated thus: "Section 8(aXl) of the Act makes it unlawful for an employer to instigate and promote a decertification proceeding or induce employees to sign any other form of union-repudiating document, particularly where the solicitation is strengthened by express or implied threats of reprisals or promises of economic benefit." N.LR.B. v. Birmingham Publishing Co., 262 F.2d 2, 7 (C.A. 5, 1959). For the foregoing reasons, it is concluded that, by its following conduct, the Respondent, through its agents named below, violated Section 8(a)(X ) of the Act: 23 (a) By Volmer's request that Connelly influence other employees to sign a petition rejecting the Union. (b) Volmer's promise to Connelly of pay raises for himself and other employees, in order to induce him to circulate the antiunion petition. 21 See Height Funeral Home, Inc., 159 NLRB 723. 733-735 (1966), where the Board, upon circumstantial evidence, found that an individual had acted as an agent of the Respondent Employer in unlawfully assisting employees to withdraw their authorization cards. 22 200 NLRB 804. 808 (1972). 23 See United States Lnes, Inc., 217 NLRB 117 (1975); Quality Transport Inc., 211 NLRB 198, 205-206 (1974); Haymarket Bookbinders, Inc., 183 NLRB 121, 127(1970). 599 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) The Respondent's successful solicitation of Williams to influence other employees to sign the petition rejecting the Union. (d) The promise of raises made by Williams, as the Respondent's agent, to other employees to induce them to sign the petition for nonsupport for the Union. (e) Volmer's followup interrogation of Connelly as to whether he had learned anything about the union sympa- thies of other employees. 2. The alleged unlawful wage increases The General Counsel contends that, although Winocur and Volmer, on November 3, had told an assemblage of employees that no raises would be available until after the union matter was settled, the Respondent, in fact, did reward its employees for signing the antiunion petitions by granting across-the-board wage increases in January 1977. The Respondent, while admitting the pay increments, denies that they were connected with the Union. The Respondent asserts that these increases were merely adjust- ments caused by the then-recent boost of the New Jersey minimum wage. Volmer testified that, when new nursing staff employees were hired, it was her practice to give them a complete statement as to what was expected of them and of the wage and benefit package that was available. Under its pay policy, as explained, employees of the Respondent start at the minimum wage. They thereafter receive 20-cent-per-hour increases at the end of their 3- month probationary period and a yearly increment on their anniversary dates. The only times employees received across-the-board increases were on occasions when the minimum wage was raised. Winocur explained that, to her recollection, the New Jersey minimum hourly rate was raised in mid-November from $2.30 to $2.40 and further raised to $2.50 on January 1, 1977. These increases automatically elevated the Respondent's entry rate. Ac- cordingly, everyone employed during the payroll period which ended on January 30 received 20-cent increments raising the base pay to $2.50 an hour. In order to preserve within its pay schedule desirable differentials, based upon experience and seniority, all employees were given 20-cent increases. This enabled the Respondent to avoid a situation where employees who had been with Respondent for more than 3 months would be paid at the same rate as inexperienced people, newly hired.24 From the record as a whole, I find that the increases resulted from the impact upon the Respondent's pay schedule of the then-recent heightening of the minimum 24 The Respondent argued that, as it had offered the Union a rejected 25- cent across-the-board hourly raise during its negotiating session of Septem- ber 24, it then was free, on a theory of impasse, to unilaterally apply such an increment to employees within the unit. However, the complaint herein did not allege that the Respondent had violated Sec. 8(aX5) and (1) of the Act by creating unilateral changes in terms and conditions of employment and neither the matters of bargaining impasse nor what had transpired at contract negotiations was litigated. Accordingly, no finding is made or warranted herein with respect to whether the disputed pay increments were validly implemented following impasse. 25 Although the complaint alleges that the Respondent promised the employees benefits in order to undermine the Union, it did not allege that they actually had been granted. There appears to be no basis, on the record herein, to go beyond the scope of the complaint with respect to this contention. wage. As that schedule is grounded upon the prevailing minimum wage rate, the Respondent's explanation, that it also was necessary to raise the pay of other employees who by then had been promoted above the starting minimum wage in order to preserve existing differentials affecting the morale of longer term employees, is both logical and acceptable. Accordingly, I do not find that these increases, in fact, were related to the promises of wage increases made months before in connection with the signing of the antiunion petition.2 5 C. The Alleged Unlawful Discharge of Domenick Minella 1. Facts The General Counsel contends that Minella 26 was terminated because he had told members of management that he would not have signed the antiunion petition circulated by Selma Williams. The Respondent contends that Minella was discharged for cause. Minella initially and principally was employed by the Respondent as a dishwasher. Assigned from noon to 8 p.m., his duties encompassed the cleaning of the kitchen and dishwashing. Although the kitchen staff was generally supervised by Lee Starner, the dietitian,27 daily operations were supervised by Bea Mascalini, the food services supervisor, and Mary Meyer, the chef-manager. Mascalini worked from 7:30 a.m. to I p.m., and Meyer's hours were from 6 a.m. to 2 p.m. Accordingly, with the departure of other kitchen personnel, Minella worked alone in the kitchen each evening from 7 to 8 o'clock. Minella testified that on September 24, his last day on the job, 28 he arrived at noon as scheduled. Larry Haas, another dishwasher, told Minella that, at Selma Williams' request, he had signed an antiunion petition that also had other names on it. However, Haas continued it was too late for Minella to do anything because the petition already was in Winocur's office. Williams had told Haas she was going to deliver the petition there after it had been signed. At that time, Minella, who had not seen the petition, told Haas that he had not been on the premises that morning, but that he thought a big mistake had been made. About half an hour later, Minella, in the course of his duties, passed the opened door to Volmer's office, wherein were Starner, the dietitian, and Volmer. Starner called Minella into the office and asked how he was doing with his new duties. 29 Minella replied that he was not doing too badly. The only problem was that his work was taking longer and he could not finish by 8 p.m. Volmer suggested 26 Minella, hired by the Respondent in October 1975, was terminated on September 24, 1976. 27 Although Starner was then senior official in the Respondent's food services department, she only visited the Respondent's premises for a 6-to-8- hour day once every 2 to 3 weeks. 28 Although Minella recalled the date as September 23, the parties stipulated at the hearing that Minella was actually terminated on September 24. 29 In June, the Respondent had terminated its second chef, and had transferred to Minella that part of his duties which involved the serving of the evening meal, which Minella performed in addition to his cleaning and dishwashing chores. The discharged chef's cooking tasks were absorbed by 600 DELLRIDGE NURSING HOME that, perhaps, the Respondent could let Minella work from I to 9 instead of from noon to 8. In that way, he could have the extra hour and still work an 8-hour day. After a moment of thought, Starner rejected the idea, explaining that the State required that the kitchen be closed at 8 p.m. It would be necessary to change the whole system to have Minella work the extra hour. 30 Minella, on his own initiative, then asked Volmer what he had heard about Selma Williams going around with some kind of antiunion petition. He told Volmer that he would not sign Williams' petition - he would not sign anything that Selma had because she was an employee like himself, and had no special standing. He asked who the hell was Selma. Volmer replied that it was his prerogative to decide whether to sign the petition just as it was Selma's to go around with somenhing that she wanted to circulate. Around 2 p.m. that day, as noted above, Minella overheard some employees refer to a staff meeting that Selma Williams was going to conduct in the patients' dining room at 2:45 that afternoon. Minella testified that around 2:30 p.m. when Starner, the dietitian, entered the kitchen, Minella mentioned this meeting to her. Starner replied that she knew about it and it had nothing to do with her. Shortly thereafter, when Mrs. Kenney31 came to the kitchen to find Starner, Minella also mentioned the meeting to her and received the same response. Minella thereafter attended Williams' meeting. Minella testified that, at 5 p.m. that day, Volmer came to the kitchen with an envelope in her hand. She told Minella that she had something to say to him, but did not know how to say it. It was not her business, he did not work for her, but that Mrs. Winocur had given her the envelope which contained his last paycheck. Volmer told Minella that that was his final day at Dellridge. When Minella asked the reason for his discharge, Volmer replied that she did not have one. She could only speculate that perhaps it was because he had stayed late a few times. She invited him to speak to Winocur on the following Monday. Minella continued to work until the end of his day. At the hearing, Minella asserted that he still did not know the reason for his discharge. As to Volmer's reference to his having worked late, Minella related that his hours of work were recorded on the timesheet which he would sign upon his arrival and departure. He had begun to work late, past 8 p.m., in January, in order to be able to finish his work and have everything ready for the next morning. Although he frequently had stayed until 8:30 or 9 p.m., he always recorded his departure time as 8 p.m. and was not paid for his additional working time.32 Meyer, the chef-manager. Minella had been granted a 40-cent-per-hour increase for each of the 2 daily hours that he spent serving dinner in the patients' dining room. w3 Minella testified that it was during the course of this conversation that he, for the first time, had learned of any possible state requirement that the kitchen be closed by 8 p.m. In the past, he had merely been told to try to get the kitchen completed as close as possible to 8 p.m. 31 Mrs. Kenney, wife of one of the owners of the Respondent's home, was a full-time employee in charge of social services and medical records. 32 Minella testified that during his time with the Respondent, he had received overtime pay on only one or two occasions. 33 Minella conceded that in July, Fred Cartrell. the maintenance supervisor, had told him that certain doors leading to the kitchen and dining room from a common hallway had to be locked at night. Otherwise, it could Minella testified that, as early as January and thereafter, he frequently had been spoken to by Volmer for staying late. However, none of these conversations had constituted warnings that, if he did not complete his work by 8 p.m., the Respondent would take disciplinary action against him. Rather, Volmer, on these occasions, would tell him simply that it was foolish for him to stay late, as he was not getting paid for it. Apart from Volmer, to whom he was not directly assigned, no member of management had repri- manded him for working after 8 p.m.3 3 Minella also recalled that Mary Meyer, the chef-manag- er, spoke to him once or twice about fooling around on the job. The only other complaint, of sorts, that Minella could recall also had come from Volmer who, in addition to her continuing references to his working late, had told him, in August, that the home liked him, but that he was not doing as good a job as he could. Minella denied ever having received written or oral warnings. The Respondent contends that Minella was discharged for working late and for fooling around too much during working hours. In support of this contention, the Respon- dent introduced a variety of documentation and the testimony of Volmer, Winocur, and Meyer. The earliest of these records was the following note to Volmer from Meyer, dated June 11: "Would you please speak to Domenick Minella. I have spoken to him about staying after hours to finish his work. It seems that he does a lot of visiting with the patients instead of cleaning the kitchen so that the kitchen is open far after hours. I would appreciate it if you could give this your immediate attention." Meyer, who leaves work each day much earlier than Minella, testified that she had become aware of Minella's deficiencies and had written the note pursuant to com- plaints received from the charge nurse of the 3 to 11 p.m. shift and certain dietary aides who worked in the evening. The charge nurse had told Meyer that the kitchen was open after hours and that it had been left unattended. The dietary aides, in turn, had informed Meyer that the work was not being done on time. Meyer testified that she concurrently told Minella that he would have to apply himself or the Respondent would dismiss him. As she had felt that her words had been taken lightly, she had written the note to Volmer. Volmer testified that, upon its receipt, she, too, had reproved Minella. Meyer testified that, on June 23, she wrote a formal warning slip concerning Minella.3 4 The offense on the slip was "Too much fooling around and does not apply himself mean his job. Although Minella had been remiss in not locking the doors, a task necessitated by a state requirement, no warning slips had issued as a result of this incident and it does not appear from the evidence that this requirement was a direct or substantive cause of his discharge 2 months later. s4 The Respondent employs a disciplinary procedure pursuant to which employees are terminated after three written warnings. When an employee conducts himself improperly, the matter is discussed with him. If an offense of a similar nature recurs, a warning slip may be prepared. The matter is then discussed with the employee who is given a copy of the warning slip, while another copy goes to the administrator for placement in the employee's file. Supervisors have discretion to determine how many oral warnings should precede issuance of a written warning slip. 601 DECISIONS OF NATIONAL LABOR RELATIONS BOARD when it is necessary. Works well when he decides to work."35 Meyer testified that she had prepared this slip in response to complaints received from residents of the Respondent's home. Minella enjoyed "fooling around" with the patients and, in a good-natured way, mocked them. The residents, feeling that they were being ridiculed, had protested. Meyer testified that, contrary to the estab- lished disciplinary procedures, she had neither shown this warning slip to Minella nor told him that she was writing him up. She, however, did tell him to straighten up and apply himself. When the slip was prepared, she delivered it to Winocur. Volmer testified that, on July 7, she wrote the following note to Winocur: I had to speak to Domenick again today. The evening shift complained that he was fooling around in the hall and the patients' rooms and was making too much noise. Volmer related that the note had been occasioned by complaints received from the evening nurses that Minella was laughing and making loud sounds which disturbed the patients and distracted the nurses aides from their work. She had received complaints from the patients as well. On the next day, she had reprimanded Minella, telling him that if he could not do his job properly he should look for something else. Volmer also wrote a warning slip, dated August 25, concerning Minella. His offense, as noted thereon, was as follows: "Spoke to Domenick because when I came in at 8:30 p.m. last night, the kitchen was open - the dishes not done - the floor dirty and Domenick no place in sight. He came in about 9 p.m. from the outside. I told him that the kitchen must be closed by 8 p.m." Volmer testified that the slip was descriptive of what she had observed upon her return to the home at that time.36 At that time, Volmer told Minella that it was essential that the kitchen be closed at 8 p.m. Every other dishwasher could finish by that time except him. She repeated that the kitchen must be locked after 8 p.m. for safety reasons, as an open kitchen was dangerous to the patients. Minella replied that he would comply. Volmer also told Minella that she was going to write him up, which she did. She thereafter gave the warning slip to Winocur. Respondent also introduced two dietitians' reports, dated September 2 and 24, respectively, signed by Lee Starner.37 On the bottom of the September 2 report, following miscellaneous recommendations and notations relevant to operations, Starner wrote the following: Domenick Minella, an employee who works from 12 p.m. [sic] to 8 p.m. This employee remains until late at night after hours for his personal reasons allowing the kitchen to remain open at night jeopardizes our position. Security and safety this also causes a false 35 Although no evidence of an earlier written warning slip was intro- duced, the fact of Meyer's slip indicated that this was a record warning. 3e Although Volmer's regular workday ended at 5 p.m., she testified that she frequently returns to the Respondent's premises at night. 37 According to Volmer. dietitians' reports must be displayed pursuant to state regulations. Prepared during each of Starner's visits, they indicate what the dietitian is doing. picture of overtime.... His assignments are never completed. Recommend - speak to him to rectify situation. If he does not comply with rules, I recom- mend dismissal. Volmer testified that, in September, Starner had spoken to Minella in her presence. Volmer and Starner had asked Minella to come into Volmer's office as he was passing by. During their conversation, Starner had told Minella about his responsibilities and the complaints received about him and informed him that, if there were any more complaints, he would be discharged. It was essential that the kitchen be closed and the work be done. Volmer did not say anything at the time. Minella, a happy-go-lucky type, merely had laughed and promised to do better. Volmer testified that Minella .had begun to stay late during the first months of his employment and gradually had remained later and later. Volmer contended that during this period she had complained at various times to Minella, Winocur, Meyer, and Starner. On two previous occasions, Starner, having come to the home on business in the evenings, had told Volmer that she, too, had seen Minella working late at night and had reproved him. On cross-examination, Volmer conceded that Starner's notation on her September 2 dietitian's report had its genesis in a complaint made that day by Volmer to Starner, but contended that Starner also had based her report on complaints received from patients concerning noise in the hall in the evenings, and from Mary Meyer, the chef- manager.38 Volmer testified that Minella's discharge was finally prompted by events occurring on the evening of Thursday, September 23. She had gone to her home shortly after 5 p.m. that day, but found it necessary to return to the Respondent's premises around 9:30 p.m. to handle a special problem. When Volmer arrived at the parking lot, she noticed that the kitchen and the employees' dining room were still lit. Volmer went into the building through the back entrance and found that the doors to the kitchen and the employees' dining room were still open. Entering, she saw a patient seated in the dining room with his family. Minella was not in sight. The trays had not been disman- telled, there were dirty dishes and leftover food in evidence, and unclean pots were piled high. She observed that the floor, too, was a mess. In response to her inquiry, the patient told her that Minella was not there. However, within a few minutes, Minella appeared. Volmer asked where he had been. Minella replied that he had gone to the bathroom. Volmer testified, however, that it was her opinion that he had come from outside because she had heard the back door. Volmer told Minella that she was furious; he had been warned many times. As far as she was concerned, he was finished. Minella answered that he was trying to get his work done; however, with the additional chores involved in serving, he could not complete his work 38 Inconsistent, however, with Volmer's warning letter of August 25 and Starner's notation on her dietitian's report, dated September 2, Minella's pay records (corroborated by records of the New Jersey State Division of Disability Insurance) show that Minella was on sick leave from his job and was drawing disability compensation from the State in the period from August 23 to September 12. 602 DELLRIDGE NURSING HOME in the specified time. Volmer declared that she would report him to Winocur in the morning and that, in her view, Minella should leave immediately. On the next morning, when Volmer arrived at work about 9 a.m., she related the incident to Winocur and recommended Minella's discharge. Winocur and Volmer then reviewed Minella's file, noting the existing complaints. Winocur decided that Minella should be terminated that day. Volmer testified that, about an hour after reporting to Winocur, she also described to Starner what had happened the night before. Starner stated that she would recommend Minella's dismissal. Volmer told Starner that Winocur had suggested that herself. Accordingly, on her dietitian's report dated September 24, in addition to the items of regular business, Starner wrote the following: Spoke to Domenick about continuance of staying late at nite and finishing his task - recommend dismissal.39 Volmer related that Starner's notation concerning Minella on her September 24 dietitian's report had resulted from Volmer's conversation with her. Volmer testified that later that day, when giving Minella his final check, she told him that he was being dismissed because he had fooled around so much. Minella asked whether he was being dismissed because he had said that he was going to vote for Lester Maddox. He finished his work that day.40 2. Minella's discharge - Discussion and findings The General Counsel, as noted, contends that Minella was terminated because he had informed management that he would not sign an antiunion petition at a time when the Respondent was conducting a campaign to oust the Union. The Respondent, in turn, asserts that Minella was dis- charged because he was not sufficiently attentive to his responsibilities during working hours and could not finish his work on time. It is well established that a justifiable ground for dismissal is no defense if it is a pretext and not the moving cause.4 1 If an employee is discharged for reasons even partially motivated by his protected activities, there is a violation of Section 8(aX3) of the Act.42 Although Minella may not have been an outstanding employee, it does not appear from the record herein that he would have been terminated at the time in question had he not expressed his outspoken opposition to signing the antiunion petition then being sponsored by the Respon- dent. By Minella's account, he had been working late without extra compensation since January; Volmer, enlarg- ing upon this period, testified that she had been speaking to him about his slow habits with increasing frequency since he had started with the Respondent in the preceding October. Nevertheless, the significance of this infraction is questionable when viewed in the context of the Respon- dent's overall conduct. 39 Starner did not testify at the heanng. 40 Volmer denied ever having discussed with Minella a petition to get rid of the Union or that she ever had expressed her feelings concerning the Union. 41 N.L.R.B. v. Solo Cup Company, 237 F.2d 521, 525 (C.A. 8, 1956); The When the Respondent first raised this issue, it represent- ed that state law required that the kitchen be closed by 8 p.m. each night and promised to provide a copy of the relevant statute later in the hearing. As the matter proceed- ed, however, the Respondent altered its position and noted that this requirement was of a less formal derivation. The State did not specify that nursing home kitchens had to be closed at any given hour, but that such institutions merely were required to keep written operating procedures on their premises for inspection and that such procedures should include reference to the time that the kitchen closed for the night. The specific closing time was for each home to decide independently. The Respondent, having thus deter- mined that its kitchen should be closed by 8 p.m., in practice, it long allowed this rule to be breached. The undisputed evidence reveals that, for at least the first 9 months of 1976, it was prepared to and did tolerate Minella's practice of closing the kitchen well after 8 p.m. As expressions of its contemporaneous concern over Minella's work habits, the Respondent introduced two warning slips, two dietitian's reports, and two interoffice memoranda purporting to record his various infractions. This was accompanied by the testimony of the Respon- dent's two top resident administrators and Minella's immediate supervisor concerning their repeated complaints and efforts to get Minella to straighten up over a period of many months. The documents thus presented, apparently, were not handled in accordance with the procedure established under the Respondent's three warning disciplinary systems. Accordingly, when Minella testified that he had received no written warnings during his employment with the Respondent, he was not actually contradicted by the Respondent's evidence for, despite Volmer's testimony that under the Respondent's disciplinary system each warned employee was to be shown copies of any warnings to be placed in his file, by the issuing supervisor, this was not directly done with respect to Minella. Chef-Manager Meyer testified that she had not shown Minella either her note of complaint to Volmer, dated June I1I, or the warning slip she had prepared concerning him on June 23. Meyer admitted that she did not even tell Minella that she was writing him up. Similarly, there is no evidence that the interoffice note written by Volmer to Winocur, dated July 7, specifically had been brought to Minella's attention. Volmer did testify that, in advance of preparing the August 25 warning slip concerning the condition in which she had found the Respondent's premises, she had told Minella that she was going to write him up. However, he was not shown the warning slip after it was prepared. Moreover, this warning slip and the adverse notation concerning Minella on Starner's dietitian's report of September 2 are both suspect for the additional reason that Minella's pay record, as corroborated by the New Jersey State Division of Disability Insurance, revealed that he had been on sick leave from about August 23 to September 12, and that he had received state disability payments for that period. John Klann Moving and Trucking Company v. N. LR.B., 411 F.2d 261, 263 (C.A. 6, 1969). 42 N.LR.B. v. The George J. Roberts A Sons, Inc., d/bla The Roberts Press, 451 F.2d 941, 945 (C.A. 2, 1971). 603 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Accordingly, as contemporaneous expressions of displea- sure, these documents of August 25 and September 2 lack a certain spontaneity. The notation on the dietitian's report of September 24, recommending Minella's dismissal, ad- mittedly prepared by Starner on the basis of her conversa- tion with Volmer, and prepared after the decision to fire Minella had been made, seems subject to the same observation.4 3 The extent to which the complaints against Minella, a dishwasher, were marshalled, discussed, recorded, redis- cussed, and re-recorded over a period of three quarters of a year by the Respondent's key resident administrators, as the Respondent has sought to establish, is hard to believe. The Respondent's long-continued retention of and endless deliberation over Minella, an unskilled employee, in the context suggested, detracts from the credibility of its assertions, including that his inability to close the kitchen by 8 p.m. was jeopardizing the Respondent's position with the State, and that his other conduct was adversely affecting its patients. To the contrary, the most overt action to be taken by the Respondent during June, the month in which Meyer allegedly had written two negative reports concerning Minella, was to increase his duties and income by assigning him the additional task of serving the evening meal. 44 Finally, it is noted that, although Minella's work habits, such as they were, had been tolerated for months, he was terminated only about one-half day after he had expressed to Volmer and Starner his opposition to the antiunion petition then circulated by Selma Williams. In reviewing the conflicting versions of that conversation, Minella's account suffered from a certain patness which, under circumstances other than those found herein, would have caused it to appear less than convincing. However, in view of the violations found, which need not be repeated, the timing of the discharge in relation thereto, and noting also the Respondent's inconsistent treatment of Minella, his testimony is credited. For the foregoing reasons, it is concluded that the Respondent's discharge of Minella on September 24 was in violation of Section 8(a)(3) and (I) of the Act. E. The Alleged Refusal To Bargain The General Counsel contends that the Respondent unlawfully refused to bargain with the Union by its conduct in inducing its employees to circulate a petition renouncing support for the Union, by bargaining with them directly concerning rates of pay, in promising them wage increases in order to undermine the Union, and by, in effect, withdrawing recognition from the Union on October 4. This refusal by the Respondent to continue to recognize and bargain collectively with the Union came but a year and a day after the Union had been certified as the 43 Winocur testified that she had transmitted copies of Minella's warning slip in an envelope left for him in the sign-in book. This procedure, even if credited, would still constitute a departure from the Respondent's stated practice whereby the issuing supervisor gives a copy of the warning slip to the errant employee and discusses it with him. 44 As noted, Minella, upon assurmng this extra responsibility, received an increment of 40 cents an hour for each 2 daily hours required to serve the meal. bargaining agent for employees in the unit found appropri- ate herein.45 In Sander, Inc. & Zeasel, Inc. d/b/a Eden Forest & Garden of Eden Nursing Homes,4 6 Administrative Law Judge Harmatz, in his Board-approved Decision, noted the following: The lawfulness of the withdrawal of recognition from the certified Union, which gives rise to the critical issue in this case, turns on the factual question of whether evidence of the Union's loss of the majority was solicited coercively by a supervisor or agent of Respon- dents and therefore was induced by Respondents' unfair labor practices. In accordance with established Board policy, a withdrawal of recognition from a certified union, upon expiration of the certification year, violates Section 8(aX5) unless the employer demonstrates "that, at the time of the refusal, the Union no longer commanded a majority or that the employer's refusal was predicated upon a reasonably based doubt of majority." 2 2 Orion Corporation., 210 NLRB 633 (1974). As previously indicated, the Respondent agrees that on October 4, immediately upon expiration of the certification year, it questioned the continued majority status of the certified union, recognition was withdrawn, and there was no further bargaining. As in Eden Forest & Garden of Eden Nursing Homes, supra, there is no dispute that the Respon- dent, in so doing, relied on evidence of loss of majority based upon the petitions signed by certain of its employees, indicating repudiation of the Union. The General Counsel challenges the availability of this defense under the circumstances herein, contending that these signatures were obtained through the Respondent's unlawful con- duct. 47 Condon Transport, Inc., 4 8 contained the following analy- sis: Lending some support to Respondent's position that the withdrawal of recognition in this case was perfectly legitimate, is the Board's decision in Telautograph Corporation,5 which, in effect, held that a decertifica- tion petition, supported by an adequate showing of interest, which raises a real question concerning repre- sentation 6 may alone provide a defense to an employ- er's refusal to participate in further contract negotia- tions. However, in National Cash Register Company,7 the Board distinguished Telautograph, supra, by holding that a decertification petition furnished no defense to a refusal to bargain where the employer had inspired the filing of such a petition. A parallel to that proposition is the long-established Board policy which precludes an employer from asserting a good-faith doubt of majority where the employer has engaged in misconduct tending 4' See fn. 3, above. 4e 213 NLRB 734, 735 (1974). 47 Counting Edward Volmer's two signatures as but a single entry, it appeared that 34 of the 53 unit employees signed the antiunion petitions on which the Respondent relies. 4s 211 NLRB 297, 300 (1974). 604 DELLRIDGE NURSING HOME to dissipate the Union's majority and thereby to induce said loss of majority.8 5 199 NLRB 892 (1972). 6 The fact that a decertification petition has been administratively dismissed because of a pending 8(a)(5) complaint does not vitiate the defense raised here. The administrative determination that no question concerning representation exists is not conclusive, and is disregarded where through litigation of the complaint no possible connection between employer misconduct and employee decertification activity is shown. See Deblin Manufacturing Corporation, 208 NLRB 392 (1974). ?201 NLRB 1034(1973). Celanese Corporation of America, 95 NLRB 664, 673 (1951); Plastiline, Inc., 190 NLRB 365, 374 (1971); General Motors Aeceptance Corporation, 196 NLRB 137 (1972), and cases cited at fn. 8 thereof. From the credited evidence adduced, it has been found herein that the Respondent had (1) solicited Connelly to circulate among employees a petition rejecting the Union; (2) utilized Williams as its agent to obtain employee signatures on such a petition; (3) promised economic benefits to Connelly both for himself and for other employees to induce him to circulate the antiunion peti- tion; (4) through Williams, as its agent, had promised pay raises to employees to induce them to sign the petition rejecting the Union; (5) coercively interrogated Connelly concerning the union sympathies of other employees; and (6) terminated Domenick Minella because of his stated opposition to the Respondent-sponsored antiunion peti- tion. As it has been found that Selma Williams acted as an agent of the Respondent at the time, I found that the Respondent violated Section 8(a)(5) and well as Section 8(a)(1) by her promise of wage increases to employees to induce them to withdraw their support of the Union, as this constituted a form of direct bargaining clearly contrary to the Respondent's good-faith bargaining obligation. A similar finding is made with respect to Volmer's attempt to directly negotiate with Connelly with respect to wage increases for himself and for other employees within the unit. It further is found that these unfair labor practices induced and directly affected the claimed loss of the Union's majority evidenced by the 18 signatures on Williams' petition. 49 Accordingly, the Respondent is not free to assert such evidence as the basis for either a doubt of or an actual loss of majority in defense of its withdrawal of recognition from the certified union. It further is concluded that the Respondent violated Section 8(aX5) and (1) of the Act by its refusal to bargain with the Union on and after October 4, 1976. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, found to constitute unfair labor practices occurring in connection with its operations described in section I, 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 obstruct- ing commerce and the free flow thereof. 49 It also is concluded that the Respondent's conduct herein was such as to taint the other petitions and to deprive them of efficacy. 15 On March 7. 1977. the Respondent, on the record herein, offered CONCLUSIONS OF LAW 1. Dellridge Associates Inc., d/b/a Dellridge Nursing Home, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 1115, Joint Board, Nursing Home and Hospi- tal Employees Division, is a labor organization within the meaning of Section 2(5) of the Act. 3. All service and maintenance employees employed by the Respondent at its Paramus, New Jersey, facility, including ward clerks, but excluding office clerical employ- ees, technical employees, licensed practical nurses, regis- tered nurses, special employees, guards and all supervisors, as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. The Respondent violated Section 8(aXS) and (1) of the Act by (a) soliciting employees to withdraw their support from the Union; (b) bargaining directly with employees by soliciting them to accept wage increases in return for abandoning the Union; (c) withdrawing recogni- tion from and by refusing, since October 4, to bargain with the Union as the exclusive bargaining representative of employees in the appropriate bargaining unit set forth above. 5. The Respondent violated Section 8(aX3) of the Act by discharging Domenick Minella on September 24, 1976, because of his opposition to the antiunion petition then being sponsored by the Respondent. 6. The Respondent violated Section 8(aXi) of the Act by all of the foregoing conduct, and by coercively interro- gating an employee concerning the union sentiments of other employees. 7. The General Counsel has failed to prove by a preponderance of the evidence its contention that the Respondent unlawfully gave wage increases in early 1977. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, it will be recommended that the Respondent be ordered to cease and desist therefrom and that certain affirmative action be taken which is necessary to effectuate the policies of the Act. In view of the finding that the Respondent unlawfully discharged Domenick Minella, it is recommended that it be ordered to make him whole for any loss of earnings' suffered by reason of his discharge by payment to him of a sum of money equal to that which he would have earned as wages from the date he was terminated to the date that proper offer of reinstatement was made, less his net earnings during such period. Such backpay, if any, is to be computed on a quarterly basis in the manner established in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest thereon at 7 percent, calculated according to the formula set forth in Florida Steel Corporation, 231 NLRB 651 (1977). It having been found that the Respondent has violated Section 8(aX5) and (1) of the Act, it will be recommended Minella reinstatement to his former position, thereby serving to toll backpay. Accordingly, Minella's backpay period runs from September 25, 1976, the day after his discharge, to March 7, 1977. 605 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the Respondent, upon request, bargain collectively with the Union and embody any understanding reached in a signed agreement. As the discriminatory discharge of Minella, and the Respondent's other conduct found unlawful herein, goes "to the very heart of the Act," the Board's Order should be sufficiently comprehensive to prevent further infractions of the Act in any other manner. I shall so recommend. 51 Upon the foregoing findings of fact, conclusions of law, and the entire record in this case, and pursuant to Section 10(c) of the Act, I hereby issue the following recommend- ed: ORDER52 The Respondent, Dellridge Associates, Inc., d/b/a/ Dellridge Nursing Home, Paramus, New Jersey, its offi- cers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain in good faith with Local 1115, Joint Board, Nursing Home and Hospital Employees Division, as the collective-bargaining representative of employees in the unit found appropriate for purposes of collective bargaining. The bargaining unit is: All service and maintenance employees employed by the Respondent at its Paramus, New Jersey, facility, including ward clerks, but excluding office clerical employees, technical employees, licensed practical nurses, registered nurses, professional employees, guards and supervisors, as defined in the Act. (b) Bargaining directly with employees concerning rates of pay or other terms and conditions of employment in order to undermine the above-named Union. (c) Promising employees economic benefits to induce them to withdraw their support from the above-named Union, or any other labor organization. (d) Ceasing to bargain with the above-named Union in the absence of a good-faith doubt as to its majority status. (e) Soliciting employees to withdraw their support from the Union and inducing them to encourage other employ- ees to reject the Union as their collective-bargaining representative. (f) Coercively interrogating its employees concerning the union sympathies of other of its employees. (g) Discharging or otherwise disciplining its employees because they refused to withdraw their support for the Union as their bargaining representative. (h) In any other manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed under Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Upon request, bargain collectively with the Union as the exclusive representative of employees in the appropri- ate unit and, if an understanding is reached, embody such understanding in a signed agreement. (b) Make whole Domenick Minella for any loss of pay suffered by him by reason of his discriminatory discharge in the manner set forth in the section hereinabove entitled "The Remedy." (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records and reports, and all other records necessary to ascertain the amount, if any, of backpay due under the terms of this recommended Order. (d) Post at its premises at Paramus, New Jersey, copies of the notice marked "Appendix." 53 Copies of said notice, on forms provided by the Regional Director for Region 22, after being duly signed by an authorized representative of the Respondent, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily displayed. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 22, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. IT IS FURTHER ORDERED that the complaint be dismissed insofar as it alleges violations of the Act not found herein. 5' N.LR.B. v. Entwistle Manufacturing Company, 120 F.2d 532, 536 (C.A. 4, 1941); N. LKB. v. United Mineral & Chemical Corp., 391 F.2d 829, 837- 838 (C.A. 2, 1968). 52 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. 53 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National 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." APPENDIX NoTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing in which all sides were represented by their attorneys and presented evidence, it has been found that we have violated the National Labor Relations Act in certain respects. To correct and remedy these violations, we have been directed to take certain actions and to post this notice. WE WILL NOT refuse to bargain in good faith with Local 1115, Joint Board, Nursing Home and Hospital Employees Division, as the exclusive collective-bar- gaining representative of the employees in the following unit, found appropriate for purposes of collective bargaining: All service and maintenance employees employed by Dellridge Nursing Home at our Paramus, New Jersey, facility, including ward clerks, but exclud- ing office clerical employees, technical employees, licensed practical nurses, registered nurses, pro- fessional employees, guards and all supervisors, as defined in the Act. 606 DELLRIDGE NURSING HOME WE WILL NOT bargain directly with our employees with respect to their wages or other terms and condi- tions of their employment. WE WILL NOT promise our employees pay raises or economic benefits to persuade them to withdraw their support from the above-named Union, or any other labor organization. WE WILL NOT cease to bargain with the above-named Union in the absence of a good-faith doubt as to its continued majority status. WE WILL NOT solicit our employees to withdraw their support from the Union, and WE WILL NOT seek to induce them to encourage other employees to reject the Union as their collective-bargaining representative. WE WILL NOT coercively interrogate our employees concerning the union sympathies of our other employ- ees. WE WILL NOT discharge or otherwise discipline our employees because of their refusal to withdraw support from the above-named Union or any other labor organization. WE WILL NOT in any other manner restrain or coerce employees in the exercise of rights under Section 7 of the Act. WE WILL bargain in good faith with the aforesaid Union, upon request, as the exclusive representative of our employees in the above-described bargaining unit and embody in a signed agreement any understanding reached. WE WILL make whole Domenick Minella, with interest, for any loss of earnings he may have suffered by reason of his discriminatory discharge. DELLRIDGE ASSOCIATES, INC., D/B/A DELLiuDOE NURsING HOME 607