Highland House Nursing Center, Inc.

134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Highland House Nursing Center, Inc. and Profession- al and Health Care Employees Division , Local 1540, Retail Clerks International Association , AFL-CIO. Cases 13-CA-14257 and 13-RC-13630 January 12, 1976 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY MEMBERS FANNING, JENKINS, AND PENELLO On October 23, 1975, Administrative Law Judge Walter H. Maloney, Jr., issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions and a supporting brief, and the Acting Gen- eral Counsel, hereinafter called the General Counsel, filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order.2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that Respondent Highland House Nursing Center, Inc., Downer's Grove, Illinois, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, except that the attached notice is substituted for the Administra- tive Law Judge's notice. IT IS FURTHER ORDERED that the election held in Case 13-RC-13630, on April 11-and 12, 1975, be and it hereby is, set aside and that the case be remanded to the Regional Director for Region 13 for the pur- pose of conducting a new election in the appropriate unit at such time as he deems the circumstances per- mit the free choice of a bargaining representative. [Direction of Second Election and Excelsior foot- note omitted from publication.] 'Respondent has excepted to certain credibility findings made by the Administrative Law Judge . It is the Board's established policy not to over- rule an Adnumstrative Law Judge's resolutions with respect to credibility 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 Respondent alleges that the Administrative Law Judge failed to consider carefully the many issues of credibility raised by Respondent in its brief to the Administrative Law Judge and its arguments for resolving them in its favor as he issued his decision 8 days after receipt of its brief . Respondent has not alleged, and we have no reason to believe , that the Administrative Law Judge did not consider Respondent 's brief. Moreover, our review of the entire record, including Respondent's exceptions and brief, satisfies us that the Administrative Law Judge's Decision is supported by a clear preponder- ance of the relevant evidence. We hereby correct the Administrative Law Judge 's inadvertent conclu- sion that Supervisor Cora Hughes' interrogation of Philip Wmtermute took place in her office when in fact, as the Administrative Law Judge 's previous finding of fact reveals, this unlawful interrogation took place in the office normally occupied by the secretary of the administrator of the home 2 We find no merit in Respondent's exception to the scope of the remedial order, as the unfair labor practices committed by the Respondent are poten- tially related to other unfair labor practices proscribed by the Act, and the danger of their commission in the future is to be anticipated from the Respondent's conduct in the past. As the preventive purposes of the Act will be thwarted unless our Order is coextensive with the threat , we affirm the Administrative Law Judge's broad remedial order The recommended notice is clarified to indicate that benefits granted employees are not to be rescinded We further find merit in Respondent's exception that the notice should be modified to show that employees have the right to refrain from joining or supporting the Professional and Health Care Employees Division , Local 1540, Retail Clerks International Associa- tion, AFL-CIO, or any other labor organization Accordingly , we shall modify the notice in these respects. 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 parties had the opportu- nity to present their evidence it has been decided that we broke the law in certain ways. We have been or- dered to post this notice. We intend to carry out the order of the Board and abide by the following: WE WILL NOT interrogate employees concern- ing their union activities. WE WILL NOT threaten to discontinue any company benefits because of the unionization of the Home. WE WILL NOl grant benefits to employees in an attempt to persuade them from giving support to the Union. Provided however, that nothing here- in requires us to vary or abandon any economic benefit or any term or condition of employment which we have heretofore established. WE WILL NOT attempt to create in the minds of our employees an impression that their union activities are under surveillance. WE WILL NOT by any means or in any manner interfere with, restrain, or coerce employees in the exercise of rights guaranteed to them by Sec- tion 7 of the National Labor Relations Act. These rights include the right to form, join, or assist labor organizations; to bargain collec- tively through representatives of their own 222 NLRB No. 25 HIGHLAND HOUSE NURSING CENTER 135 choosing; and to engage in other concerted ac- tivities for their mutual aid and protection. All of our employees are free to become or remain members` of Professional and Health Care Employ- ees Division, Local 1540, Retail Clerks International Association, AFL-CIO, or any other labor organiza- tion, or to refrain from any and all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as au- thorized in Section 8(a)(3) of the Act. The representation election conducted on April I 1 and 12, 1975, has been get aside and another election will-be held at such time as the Regional Director of the Board deems appropriate. Further notice of the date, time, and place of said election and the eligibili- ty to vote in said election will be posted. HIGHLAND HOUSE NURSING CENTER, INC. DECISION FINDINGS OF FACT A. Statement of the Case WALTER H. MALONEY, JR., Administrative Law Judge: This case came on for hearing before me at Chicago, Illi- nois, upon a complaint,' amended at the hearing, which was issued against the Respondent Highland House Nurs- ing Center, Inc. (herein sometimes called the Home), by the Regional Director for Region 13. The complaint was consolidated with objections to the conduct of an election which were timely filed by the Charging Party herein .2 It alleges that the Respondent 3 committed various acts of coercive interrogation of employees through Supervisors Clinton, Evans, Hughes, Morrison, and LaSeur; created an impression of surveillance of the union activities of -em- ployees through statements made by Supervisors Evans, i The principal docket entries in the complaint case are as follows Charge filed on April 29, 1975; complaint issued on July 9, 1975; answer filed by the Respondent on July 18, 1975; hearing held in Chicago, Illinois, on August 27 and 28 and September 5, 1975; briefs filed with me by the General Counsel and the Respondent on October 14, 1975. 2 The principal docket entries in the consolidated representation case are as follows. petition for representation election filed by Professional and Health Care Employees Division , Local 1540, Retail Clerks International Association, AFL-CIO (herein called Union), on February 3, 1975; certifi- cation upon consent election agreement approved by the Regional Director, March 7, 1975, representation election conducted among Respondent's nurses aides, janitors, laundry, activity, housekeeping, kitchen, and clerical employees on April 11 and 12, 1975, which the Union lost by a vote of 27 to 37, objections filed on April 18, 1975; report on objections and order conso- lidating representation case with complaint case issued on July .11, 1975 3 Respondent admits, and I find, that it is an Illinois corporation which operates a proprietary nursing home in Downer's Grove, Illinois. During the preceding 12 months, a representative period, it derived gross revenues from this nursing home in excess of $100 ,000 and purchased and received directly at this place of business from points and places outside the State of Illinois, goods valued in excess of $5,000 . Respondent is an employer -within the meaning of Sec 2 (2), (6), and (7) of the Act The Union is a labor organiza- tion within the meaning of Sec 2(5) of the Act. Hughes, and LaSeur; gave employee Wintermute a pay in- crease in order to dissuade him and fellow employees from supporting the Union; by- remarks made by Supervisor Morrison threatened employees with loss of benefits in the event of a union activity victory; and attempted to discour- age or prevent employees subpenaed by the General Coun- sel from testifying at the hearing in this case. In the allega- tions of objectionable conduct which were pressed at this hearing, the Charging Union complained that the Respon- dent unlawfully interrogated employees concerning union activities, including making such interrogations within 12 hours of the representation, election or making them in the locus of managerial authority; that it threatened employees with the loss of jobs if the Union won the election; and that the Respondent unlawfully promised pay increases if the Union lost the election. The Charging Party seeks to set aside the election and to have the Board direct a second election. The Respondent -denies the commission of any unfair labor practices and denies engaging in any objec- tionable conduct. Upon these contentions, the issues herein are oined.4 B. The Objectionable Conduct and Unfair Labor Practices Alleged The Respondent operates a 145-bed nursing home in Downer's Grove, Illinois, a suburb of Chicago. Early in 1975, the Union began an organizing campaign among its nonprofessional employees. A substantial number of bar- gaining unit personnel are individuals in their late teens. The Union filed a petition for an election on February 3. The election was held in various sessions on April 11 and 12. The events at issue herein took place, for the most part, within this time frame. Sometime in February, Cora Hughes, the medical rec- ords supervisor at the Home, spoke with employee Philip Wintermute in the office normally occupied by the secre- tary to I'lene LaSeur, who is the administrator of the Home. Mrs. Hughes told Wintermute that he could not vote in the forthcoming election because he was a supervi- sor 5 and asked Wintermute if the Union had contacted him. Wintermute told Mrs. Hughes that a union represen- tative called at his house and spoke with his mother. Some time thereafter, Mrs. Hughes spoke with Wintermute in the conference room concerning the forthcoming election. She showed him a copy of the Union's constitution and bylaws and a form containing the salaries of union offi- cials.6 On this occasion, Mrs. Hughes asked Wintermute what he thought about the Union, whether union represen- tatives had visited him, and whether he was going to vote for or against the Home. Wintermute gave no answer. On April 10, the night before the election, the Union held a beer and pizza party for Home employees at a nearby Shakey's Restaurant. On the following day in the 4 Errors in-the transcript have been noted and corrected. 5 Wmtermute was a leadman in the kitchen. His name appeared on the Excelsior list, and he voted in the representation election. 6 While the record does not specifically reflect it, I presume that the list of salaries of union officials often mentioned by witnesses is either the form annually filed by labor organizations with the U S. Department of Labor disclosing such matters, or information derived therefrom, 136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent's kitchen, Mrs. Hughes asked Wintermute how the pizza party was, how many beers Wintermute drank, and how his girl friend enjoyed the party. His reply was "You know, I don't know." Wintermute then asked Mrs. Hughes for a copy of Miss LaSeur's campaign speech which had been delivered the previous evening to unit per- sonnel. Wintermute had missed that meeting. Mrs. Hughes furnished him with a written text which he then read .7 Af- ter he finished reading the speech, Mrs. Hughes told him, "Don't disappoint me." During this same period of time, Wintermute was, in effect, campaigning for a pay raise. Wintermute com- menced his employment with the Home on February 5, 1974, and had received successive raises from his initial wage of $2.05 an hour to $2.15, $2.25, and then $2.45 an hour. The last mentioned increase, granted in September 1974, was as a result of a family emergency which he brought to the attention of the Home management. The Home has a policy of granting an anniversary increase to employees I year following the date of their employment, or immediately thereafter. Early in February, Wintermute asked Mrs. Hughes for an anniversary raise. She said that she did not feel that he was entitled to one because he had received several already. On March 8, Betty Evans was promoted from second cook to first cook and became su- pervisor of the kitchen. Shortly thereafter, Wintermute asked her for a raise: She said that she would speak to Mrs. Hughes about the request and did so. Wintermute's argu- ment to Mrs. Evans was that he was then receiving less money as a leadman than Alan Fleagle, another kitchen employee with less responsibility, and that this disparity was making him look bad. In his paycheck of March 20, Wintermute received a 10-cent-an-hour increase, bringing his rate up to $2.55 per hour.8 The receipt of the check on March 20 was the first information Wintermute had that he was in fact receiving an increase. Late in February or early in March, employee Debbie Atkinson, a nurses aide, came into the office of Nursing Supervisor Bonnie Clinton 9 with Tracy Novak, another nurses aide, to complain about certain deficiencies on the part of the night nurses aides who assertedly were not properly dressing patients for bed. According to Mrs. At- kinson, after they had discussed the patient care problem, Mrs. Clinton asked Mrs. Atkinson to stay. She then began this portion of the conversation by stating that she had heard Mrs. Atkinson was trying to get a union in. Then, according to the Atkinson version, she asked Mrs. Atkin- son how much of a raise employees would be getting, warned her that the advent of a union would not necessari- ly mean a net increase in take-home pay because of deduc- 7 Mrs. Hughes denies any interrogation and recites, in some instances, versions of these conversations which differs from Wintermute's. I credit Wintermute 6 Wintermute testified that he first received the increase on his check of April 5 Mrs. Hughes testified that, at the request of counsel, she checked Wintermute's payroll record and found that he received the 10-cent-an-hour increase in the check distributed on March 20. Employees at the Home are paid twice monthly I credit Mrs Hughes on this point, although I note that no payroll records were introduced into evidence. 9 Shortly before the hearing, Bonnie Clinton remarried and is now Bonnie Perratto. Because she is more frequently described in this case by her former name, I have elected to do so. tions of union dues, and asked her how many meetings she attended. Mrs. Clinton insists she asked Mrs. Atkinson no questions concerning her activities. According to her ver- sion, it was Mrs. Atkinson who initiated the conversation on the question of unions, asking her whether she had ever been a union member and looking to her for advice. Mrs. Clinton's advice was simply to be careful and to look into the matter thoroughly. Mrs. Clinton was an unimpressive witness, and in a two-person credibility conflict, she would come off poorly. However, her version of this conversation is corroborated by former Assistant Director of Nursing Anne Sullivan, who was present during the above-recited conversation and vouched for Mrs. Clinton's version. For this reason, I credit Mrs. Clinton. Betty Evans was second cook in the kitchen until March 8, when she was promoted to the supervisory position of first cook. Mrs. Evans gave evidence of being personally embittered and antagonistic to trade unions. Prior to her promotion and just before the Union herein filed its repre- sentation petition, she went to a local public library in Villa Park and asked the librarian for a reference book on the subject of graft in the union movement. She was directed to a volume entitled, "Captive City-Chicago In Chains," by Ovid Demaris. The book in question deals with various phases of social, economic, and political life in Chicago and the involvement of racketeers in the city's affairs. Among the topics covered by the book is asserted infiltra- tion and control of labor organizations in the Chicago area by criminal elements, particularly the Mafia. She brought the book to work, discussed its contents with various of her fellow employees, and urged them to take it out of the library and read it. She returned it to the Villa Park library on February 22, about 2 weeks before her promotion to the status of supervisor. She admits discussing the contents of this book before the election. In addition to these discus- sions Mrs. Evans, after being promoted to supervisor, also had other conversations with employees concerning the campaign then in progress. Along with other supervisors, Mrs. Evans was furnished by company counsel with a copy of the Union's constitution and bylaws, a copy of a con- tract concluded by a union with a nursing home in Iowa, and a list of the salaries of union officials. In individual or small group meetings conducted among persons employed in the kitchen under her immediate supervision, she showed these documents, appropriately marked to convey the Respondent's point of view, to the employees in ques- tion. These conversations took place, for the most part, in the dining room of the Home. In the course of one such conversation with employees Anna Zanol and Terry Ed- wards, Mrs. Evans told them that the Union was run by the Mafia and the syndicate, and asked Miss Zanol how she was going to vote. She received no response. On another occasion, Mrs. Evans inquired about union matters in a conversation with Wintermute. About the middle of March, she asked Wintermute in the kitchen about a union pizza party which allegedly had taken place the night be- fore. Wintermute professed ignorance of the party, to which Mrs. Evans observed that she would have gone to the party herself since it was free. At or about this same time, Mrs. Evans asked employee John Carroll as they were conversing with each other in the kitchen if he had HIGHLAND HOUSE NURSING CENTER 137 been at Shakey's with the Union on the previous evening. Carroll replied that he had not been there. As this conver- sation unfolded, Carroll and Mrs. Evans proceeded to the dining room, where Mrs. Evans exhibited to Carroll the union constitution, bylaws and other papers showing sala- ries of union officials. Anna Zanol's sister, Constance Zanol, is also an employ- ee at the Home. She testified that, during the preelection period, she frequently went to the kitchen on her break to get coffee and was asked on several occasions by Mrs. Ev- ans how she was going to vote. On one such occasion, Miss C. Zanol told Mrs. Evans to "stop hassling her" and that she was going to vote yes. Mrs. Evans denies making any of the interrogations outlined above. I discredit her denials, and specifically credit Miss A. Zanol's testimony that the interrogation of her by Mrs. Evans occurred in the pres- ence of employee Edwards in the middle of March or late in March after the date when Mrs. Evans had been ap- pointed supervisor. The Respondent employs about six Spanish-speaking employees in its housekeeping department. During the course of the election campaign, the head of the depart- ment, Helen Morrison, held about three meetings with these employees to discuss the forthcoming election. She asked maintenance man Fermin Garcia, who is no longer employed by the Respondent, to act as interpreter. Garcia accommodated her. Garcia testified that, at the second meeting with Spanish-speaking employees, at Mrs. Morrison's request he asked the assembled employees what they thought of the Union and how they were going to vote. He also asked them if they had signed union cards and, at Mrs. Morrison's request, told them that they did not have to vote for the Union just because they had signed cards. Mrs. Morrison and her assistant, Nancy Nyswonger, denied that any such interrogations had taken place, al- though neither of them speaks Spanish. I credit Garcia, who is now a neutral witness and whose testimony was partially corroborated by Respondent's witness Angel Leon. Mrs. Morrison also conducted a series of personal inter- views on the subject of the organizing drive with the Eng- lish-speaking employees under her supervision and control. One such interview took place in the conference room of the Home on a Saturday in March with Toni Nessenzia, who works in the laundry. Mrs. Morrison exhibited to Miss Nessenzia the literature which was in use by company su- pervisors in conducting their campaign. In the course of the interview'she told Miss Nessenzia that, at the present, Highland House employees get 3-, 6-, and 12-month raises during their first year of employment but, if the Union came in, they' would get only yearly raises. Miss Nessenzia also had a personal interview with the assistant director of housekeeping, Nancy Nyswonger, during which Mrs. Nys- wonger also showed Miss Nessenzia the literature in ques- tion.10 On the second day of the election, Miss Nessenzia was working alone in the laundry. Just before 3 o'clock, Mrs. Morrison came into the laundry and asked Miss Nessenzia if she was going to vote "no." Miss Nessenzia made no response but left and went to vote. Mrs. Morrison denies the above-recited statements and interrogations and main- tains that, on the afternoon of the second day of the elec- tion, she merely offered to take over the laundry chores to permit Miss Nessenzia to go to vote. I credit Miss Nessenzia's version of both incidents. Elizabeth Ann Moore was a well-known union activist. On the night before the first day of the election, she was discussing the union campaign and the election with Ber- nadette Kessler, a registered nurse employed by the Re- spondent. She mentioned to Miss Kessler and to others who were listening that she was the only employee who had not been individually interviewed by the Home in con- nection with the campaign and that had she been accorded such an interview, she might be open to other sentiments. Early the following morning, Miss Kessler took it upon herself to report this statement to Miss LaSeur, the Admin- istrator, who told her to phone Miss Moore at her home and have her come to see her at Miss Moore's earliest con- venience. Miss Moore came to the Home during the morning hours of April 11 and spoke with Miss LaSeur in an ex- tended private interview in the conference room. The inter- view consisted of an admixture of union campaign discus- sion and Highland House gossip. Miss Moore mentioned to Miss LaSeur that she was the only Highland House em- ployee who had not been interviewed by management dur- ing the-campaign. Miss LaSeur said that she could not talk with every employee personally and observed that, as ev- eryone knew how deeply Miss Moore was involved with the Union, management felt that such an interview would be fruitless from its point of view. Miss LaSeur asked Miss Moore in a rhetorical manner if she knew how low the patient census was at the Home. She stated that, because the Home was losing patients who were not being replaced, the Home might not be able to meet Union's demands. She also told Miss Moore that, in the event of a union victory, the Home had no obligation to agree to anything the Union proposed. Its only obligation was to bargain in good faith. She went on to say that she knew when and where Miss Moore was meeting with Union Business Agent Pat- rick Maurer, mentioning meetings at the Shakey's and Big Boy restaurants. She said that her [Miss Moore's] relation- ship with Maurer, a married man, was hurting her parents, and observed that Maurer was only trying to use her for his own purposes but that, as far as the Home was concerned, Miss Moore's morals were her own business. Miss LaSeur indicated that she had spoken with Miss Moore's,mother, a former employee of the Home, concerning the Union but had advised her to stay out of the union matter at the Home since it might adversely affect her present employ- ment with a unionized company." Miss Moore repeated some gossip she had heard concerning Miss LaSeur and Mrs. Clinton. When the conversation ended, Miss LaSeur tU Mrs. Morrison denies having any individual interview with Miss Nes- senzia, although she admits having such interviews with her other employ- ees. I credit Miss Nessenzia. " Miss Moore had, in fact, met with union agents, including Maurer, on several occasions to discuss union business, but had not dated Maurer or established any personal relationship with him 138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD requested her to vote "no" at the forthcoming election and to campaign for the Home.12 On August 26, the day before the hearing in this case commenced, Miss LaSeur had individual conversations with Wintermute, A. Zanol, C. Zanol, and Carroll concern- ing the subpenas which they had received from the General Counsel. The subpenas were issued about 2 weeks in ad- vance of the hearing, but each of these employees had waited until the day before the hearing to request leave of absence to attend. None of the employees were told by Miss LaSeur not to attend the hearing, and none were de- nied permission to be absent in order to comply with the subpena. In each of the conversations, Miss LaSeur ex- pressed her irritation that the employees in question had waited until the day before the hearing to make known their request to be absent. She told them that she thought that this was a poor way to treat the management of the Home, since it would be difficult to find replacements on such short notice. She also said to some of them that she hoped that they felt bad about their lack of consideration in not making known their requests at an earlier day. All of the employees in question attended and testified for the General Counsel on the first day of the hearing. They testi- fied again (or were available to testify) a week or ,so later when the hearing resumed. C. Analysis and Conclusions The Charging Party contended that the conference room in which several supervisors conducted individual inter- views with employees on campaign-related matters was the locus of managerial authority and that any statements made in the course of these interviews constituted ob9ec- tionable conduct, even if such remarks did not rise to the level of violations of Section 8(a)(1). In Peoples Drug Stores, Inc., 119 NLRB 634, 636 (1957), the Board said: It is well established that the technique of calling em- ployees, individually or in small groups, into a private area removed from employees' normal workplaces and urging them to reject the union is in itself conduct which interferes with the conditions necessary to a free choice by the employees in the selection of a bar- gaining agent and warrants setting aside the election. In a more recent case, a Board majority rejected any per se application of the People's Drug rule and stated: We shall continue to adhere to General Shoe and Peo- ples Drug, but only where it can be said on reasonable grounds that, because of the small size of the groups interviewed, the locus of the interview, the position of the interviewer in the employer's hierarchy, and the tenor of the speaker's remarks, we are not justified in assuming that the election results represented the em- ployees' true wishes. In making this determination, all the facts in the particular case must be carefully weighed. A per se approach cannot be accepted. NVF 12 Miss LaSeur testified that she had learned from several sources that Miss Moore had been at union meetings at the Shakey's and Big Boy restau- rants She demes, however, that she mentioned this fact to Miss Moore or Company, Hartwell Division, 210 NLRB 663, 664 (1974). As discussed hereinafter, the record on this case presents evidence of conduct on the part of the Respondent which clearly violates Section 8(a)(1) of the Act. As this conduct also constitutes a basis for setting aside the election, it is applicable to the Charging Party's request for a second election even if it is not specifically mentioned in the Charging Party's objections.13 Therefore it is unnecessary to pass upon this contention of the Charging Party, and I decline to do so. In reviewing the facts as found above, I conclude that the following acts and conduct on the part of the Respon- dent constitute violations of Section 8(a)(1) of the Act and also amount to conduct which interferes with the holding of a free and fair representation election. a. In February, Supervisor Cora Hughes asked Winter- mute in her office whether the union had contacted him. Later, when engaged in a company campaign effort, she asked Wintermute what he thought of the Union, whether an organizer had visited him, and how he was going to vote. Such repeated interrogation, made in the course of a strong antiunion effort on the part of an employer, consti- tutes coercive interrogation. b. On March 20, within 3 and 4 weeks prior to the elec- tion, the Respondent gave Wintermute a raise. Normally, the granting of such benefits immediately prior to an elec- tion constitutes an illegal inducement to employees to vote against unionization. N.L.KB. v. Exchange Parts Company, 375 U.S. 405 (1964). Respondent seeks to justify the in- crease to Wintermute on the basis that it was a standard company policy to grant increases to employees on the an- niversary of their employment or immediately thereafter. Respondent is in a weak position to interpose this defense. When Wintermute brought to the attention of Mrs. Hughes the fact that he had worked for the Respondent for a year and that it was company policy to grant increases at that time, he was told that he had already received too many increases to be eligible to benefit from this practice. It was only after he continually importuned various supervisors and as the date of the election drew near that Respondent changed its position. The raise was not granted on the an- niversary date of Wintermute's employment and he did not learn of it until 6 weeks later, during which time he was continually being subjected to antiunion propaganda by the employer's representatives. In light of these consider- ations, I conclude that the increase in question cannot be justified by any regular employer practice which was fol- lowed in Wintermute's case but that the increase was made in such a manner and at a time calculated to influence Wintermute's vote in the forthcoming election. According- ly, it violates the Act. c. The credited evidence relating to the Atkinson-Clin- ton discussion in late February or early March indicates that Mrs. Clinton did little more than answer questions posed to her and express her own opinion, which was large- ly noncommittal. As such expressions are protected by Sec- tion 8(c) of the Act, I will dismiss as much of the complaint that she asked Miss Moore to campaign for the Home I credit Miss 13 Dal-Tex Optical Company, Inc, 137 NLRB 1782 (1962); Dawson Metal Moore's version. Products, Inc, 183 NLRB 191 (1970). HIGHLAND HOUSE NURSING CENTER 139 as alleges that they violate the Act. d. As for Supervisor Betty Evans, the credited evidence shows that she expressed great hostility to the unionization of the Home, and, in connection with the campaign_ which she waged, asked Anna Zanol how Zanol was going to vote, asked Wintermute and Carroll on different occasions about their attendance at union-sponsored pizza parties, and repeatedly asked Constance Zanol how she was going to vote.14 Such conduct constitutes coercive interrogation. of employees. Certain of these remarks demonstrate on the part of Evans a suspicion or an awareness that-certain em- ployees-had engaged in-union activities; they also consti- tute a creation in the minds of employees of an impression of surveillance of union activities in violation of the Act. e. Helen Morrison was named in the complaint as a su- pervisor who engaged in illegal interrogation. Credited evi- dence indicates that, just before the conclusion of the vot- ing, she asked Nessenzia in the laundry room whether she was going to vote "no." She-also spoke to the Home's Spanish-speaking employees with the assistance of mainte- nance man Fermin Garcia, a rank-and-file employee who interpreted for her. While acting in the capacity of a non- supervisory agent of the Respondent for whose remarks the Respondent is legally responsible, Garcia asked employees how they were going to vote, and whether they had signed union cards. Such- interrogation constitutes a clear viola- tion of the Act. f.-During the course of a campaign interview, Mrs. Mor- rison told Nessenzia that, at the present time, Highland House employees (including by implication laundry room employees) received 3-, 6-, and 12-month raises during the first year of their employment. However, in the event of a union victory, there would be only a yearly raise. This statement amounts to a threat of loss of existing benefits which was made in order to dissuade an employee from supporting the union. As such it violates the Act. g. During the course of a conversation on the morning of the first day of the election, Miss LaSeur attempted to influence Miss Moore to vote "no." In the course of an extended private conversation, she told Miss Moore that she was aware of her meetings with union agents at named restaurants. She also made statements which, in their con- text, had a particularly nasty overtone because they sug- gested immoral behavior on the part of Miss Moore in her relationship with Union Agent Maurer. Such statements constitute the creation of an impression of surveillance of Miss Moore's union activities and are a form of interfer- ence with protected activities, all of which violate the Act. It. Miss LaSeur was understandably perturbed when a total of four employees announced on the eve of the hear- ing in this case that they would not be at work the follow- ing day because they had been subpenaed to testify. All of them had known well in advance of the hearing date of their prospective absence from employment. However, by waiting until the last minute to inform Respondent's man- agement of this obligation, they made it gravely inconven- 14 In light of the General Counsel's concession in her brief that the inter- rogation of Constance Zanol should not be regarded as a violation of Sec 8(a)(1) of the Act, I regard it only as conduct which interferes with the holding of a fair and free representation election lent for the Home Administrator to find immediate re- placements in order to carry on the operations of the estab- lishment. Miss LaSeur's remarks to these employees on August 26 constituted an understandable and well-founded expression of irritation which had been prompted by the inconsiderate conduct of others. However, nothing she said or did in any way hampered or dissuaded the employees from attending and testifying, nor were her remarks calcu- lated to do so. Accordingly, I would dismiss this allegation in the amended complaint. Upon the foregoing findings of fact, and upon the entire record herein considered as a whole, I make the following: CONCLUSIONS OF LAW 1. Respondent Highland House Nursing Center, Inc., is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Professional and Health Care Employees Division, Local 1540, Retail Clerks International Association, AFL- CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By coercively interrogating employees concerning their union sympathies and activities; by granting a pay increase which was timed to influence the support of em- ployees for the Respondent in a forthcoming election; by threatening to discontinue benefits in the event of union- ization; and by-creating in the minds of employees the impression that their union activities were under surveil- lance, the Respondent herein violated Section 8(a)(1) of the Act. 4. The unfair labor practices recited above in Conclu- sions of taw 3 have a 'close, intimate, and substantial effect on the free flow of commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 5. By the unfair labor practices recited above in Conclu- sions of Law 3, the Respondent also interfered with the freedom of choice of its employees in their selection of a bargaining representative in the election of April 11 and 12, 1975. REMEDY Having found that the Respondent has committed cer- tain unfair labor practices, I will recommend that it be ordered to cease and desist therefrom and that it be re- quired to take other actions designed to effectuate the pur- poses and policies of the Act. As the Respondent's illegal actions have been widespread, repeated, and pervasive, and as they have embraced various kinds of activities which contravene the Act, I will recommend the issu- ance of a so-called broad 8(a)(1) order designed to sup- press any and all violations of Section 8(a)(1). N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532 (C.A. 4, 1941). The con- duct of the Respondent found herein has also interfered with the free choice of a bargaining agent by the employees who voted in the representation election of April 11 and 12, 1975, so I will recommend that the Charging Party's objections to that election be sustained, that the election be set aside, that Case 13-RC-13630 be severed from Case 13-CA-14257 and remanded to the Regional Director for 140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Region 13, with instructions to conduct a second election at such time as the free choice of a bargaining representa- tive can be made through the vehicle-of the Board's elec- toral processes. Upon the foregoing findings of fact, conclusions of law, upon the entire record herein considered as a whole, and pursuant to Section 10(c) of the Act, I make the following recommended: ORDER 15 Respondent Highland House Nursing Center, Inc., Downer's Grove, Illinois, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Coercively interrogating employees concerning their union sentiments and activities. (b) Granting benefits in order to dissuade employees from supporting a union, provided that nothing in this rec- ommended Order shall require the Respondent herein to withdraw or discontinue any benefit which it has hereto- fore granted. (c) Threatening employees with loss of benefits in order to dissuade them from voting for a union. (d) Creating in the minds of employees the impression that their union activities are under employer surveillance. (e) In any other manner interfering with, restraining, or 15 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. coercing employees in the exercise of rights guaranteed to them by Section 7 of the Act. 2. Take the following affirmative action designed to ef- fectuate the purposes and policies of the Act: (a) Post at its Downer's Grove, Illinois, nursing home copies of the attached notice in English and in Spanish, which notice is marked "Appendix." 16 Copies of said no- tice, on forms provided by the Regional Director for Re- gion 13 and duly signed by a representative of the Respon- dent, shall be posted by the Respondent immediately upon receipt thereof, and shall be maintained by it for 60 consec- utive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that such notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 13, in writ- ing, within 20 days from the date of this Decision, what steps it has taken to comply herewith. IT IS FURTHER ORDERED that objections 2 and 5 to the election conducted in Case 13-RC-13630 be, and they hereby are, sustained and said election is hereby set aside; that said case be, and it hereby is, severed from Case 13-CA-14257 and remanded to the Regional Director for Region 13, and that the Regional Director is hereby direct- ed to conduct a second election at such time as, in his judgment, a free and fair election can be held. Objections 3 and 4 to the election are hereby overruled, Insofar as the amended complaint herein alleges matters not found to be violative of the Act, the amended com- plaint is hereby dismissed. 16 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."