River Manor Health Related Facility

RIVER MANOR HEALTH RELATED FACILITY 227 Samuel Liefer and Harry Ostreicher, a Copartnership, d/b/a River Manor Health Related Facility I and Local 144, Hotel, Hospital, Nursing Home and Al- lied Health Services Union, affiliated with Service Employees International Union , AFL-CIO and Lo- cal 531, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Ameri- ca, Party in Interest Samuel Liefer and Harry Ostreicher , a Copartnership, d/b/a River Manor Health Related Facility and Lo- cal 1115, Joint Board, Nursing Home and Hospital Employees Division and Local 531, International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, Party in Interest Local 531, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Ameri- ca 2 and Local 1115, Joint Board, Nursing Home and Hospital Employees Division and Samuel Lief- er and Harry Ostreicher, a Copartnership, d/b/a River Manor Health Related Facility, Party in In- terest Samuel Liefer and Harry Ostreicher , a Copartnership, d/b/a River Manor Health Related Facility and Lo- cal 1115, Joint Board, Nursing Home and Hospital Employees Division. Cases 29-CA-4187, 29-CA- 4187-2, 29-CA-4245, 29-CB-2060, and 29-CA- 4307 May 28, 1976 DECISION AND ORDER By MEMBERS JENKINS, PENELLO, AND WALTHER On January 30, 1976, Administrative Law Judge Julius Cohn issued the attached Decision in this pro- ceeding Thereafter, the Respondent Employer filed exceptions and a supporting brief, and the General Counsel filed a brief in support of the Administrative Law Judge's Decision 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 i Herein called Respondent Employer 2 Herein called Respondent Union 3 The Respondent Employer 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 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 (CA 3 1951) We have carefully examined the record and find no basis for reversing his findings conclusions of the Administrative Law Judge and to adopt his recommended Order, except as modified herein In footnote 21 of the attached Decision, the Ad- ministrative Law Judge found that the Respondents' recognition agreement does not contain a union-se- curity provision, but merely provides for the inclu- sion of one in any future collective-bargaining agree- ment thereafter negotiated The Administrative Law Judge further found that, without regard to the valid- ity of the parties' recognition agreement, Respondent Employer violated Section 8(a)(2) of the Act by re- quiring employees to sign dues-deduction authoriza- tion cards on behalf of Respondent Union Addition- ally, the Administrative Law Judge found that by this conduct Respondent Employer also violated Sec- tion 8(a)(3) and Respondent Union violated Section 8(b)(2) because it constituted an attempt to enforce the above-described provision of the recognition agreement Inasmuch as we agree with the Adminis- trative Law Judge that the recognition agreement does not contain a union-security provision and that the Respondent Employer's conduct was violative of Section 8(a)(2), we find it unnecessary to pass on his finding of 8(a)(3) and 8(b)(2) violations Further- more, we note that such additional violations do not affect the remedy herein Accordingly, we shall mod- ify the Administrative Law Judge's conclusions of law, recommended Order, and notice in this respect AMENDED CONCLUSIONS OF LAW Substitute the following for paragraphs 4 and 8 of the Administrative Law Judge's Conclusions of Law "4 By requiring employees to sign dues-deduction authorization cards on behalf of Respondent Union, the Respondent Employer has violated Section 8(a)(2) of the Act " "8 By entering into a recognition agreement with the Respondent Employer at a time when it did not represent an uncoerced majority of the employees of that employer, the Respondent Union has violated Section 8(b)(1)(A) of the Act " 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 as modified below, and hereby orders that Respondent Samuel Liefer and Harry Ostreicher, a Copartnership, d/b/a River Manor Health Related Facility, Brooklyn, New York, its partners, agents, successors, and as- 224 NLRB No 38 228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD signs, and Respondent Local 531, International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, Yonkers, New York, its officers, agents, and representatives, shall take the action set forth in the said recommended Order, as so modified 1 Substitute the following for paragraph A,1(b) "(b) Giving effect to a certain recognition agree- ment between Respondent River Manor and Re- spondent Union dated December 9, 1974, or any ex- tension or modification thereof " 2 Substitute the following for paragraph A,1(c) "(c) Assisting Respondent Union by soliciting au- thorization cards on its behalf from its employees, by granting access to its premises for the purpose of so- licitation and conducting of meetings by Respondent Union and refusing to accord similar access to Local 144 and Local 1115, and by requiring its employees to sign dues deduction authorization cards on behalf of Respondent Union " 3 Substitute the following for paragraph B,1 (a) "(a) Giving effect to a certain recognition agree- ment between Respondent Union and Respondent River Manor dated December 9, 1974, or any exten- sion or modification thereof " 4 Substitute the attached notices for the Adminis- trative Law Judge's notices IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges violations not found herein APPENDIX A threaten them with reprisals in order to require them to join or support Local 531 WE WILL NOT discharge or otherwise discrimi- nate against employees because of their mem- bership in or assistance or support of Local 144, Hotel, Hospital, Nursing Home and Allied Health Services Union, affiliated with Service Employees International Union, AFL-CIO, or Local 1115, Joint Board, Nursing Home and Hospital Employees Division, or any other labor organization WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed in Section 7 of the Act WE WILL cease recognizing Local 531 as the representative for collective bargaining of our employees WE WILL cease giving effect to our recognition agreement with Local 531 WE WILL cease giving effect to any dues- checkoff card which our employees may have signed authorizing us to deduct union dues from their wages and pay them to Local 531 WE WILL provide to both Local 144 and Local 1115 the same equality of access to our nursing home, its work areas, bulletin boards, and em- ployees as may have heretofore been provided to Local 531 WE WILL make whole Brenda Frazier, Albert Hazell, and Mary Terrell for any loss of pay or any benefits they may have suffered by reason of our discrimination against them NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT recognize and bargain with Lo- cal 531, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, as the bargaining representative of our employees, unless it becomes certified by the Board as a bargaining representative after a Board-conducted election WE WILL NOT give effect to a recognition agreement signed with Local 531 on December 9, 1974 WE WILL NOT force employees to sign checkoff authorization cards for Local 531 WE WILL NOT assist Local 531 or any other labor organization by soliciting authorization cards on its behalf or permitting it to hold meet- ings and conduct business on our premises WE WILL NOT promise benefits to employees or SAMUEL LIEFER AND HARRY OSTREICHER, A COPARTNERSHIP, d/b/a RIVER MANOR HEALTH RELATED FACILITY APPENDIX B NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT give effect to any recognition agreement executed with River Manor Health Related Facility on December 9, 1974, or any extension or modification thereof WE WILL NOT act or purport to act as the col- lective-bargaining representative of employees of River Manor, unless and until we have been certified by the Board as the collective-bargain- ing representative after the holding of a Board election RIVER MANOR HEALTH RELATED FACILITY 229 WE WILL NOT in any other manner interfere with, restrain, or coerce employees of River Manor in the exercise of rights guaranteed to them by Section 7 of the National Labor Rela- tions Act acts in violation of Section 8(a)(1) The Respondents filed answers denying the commission of unfair labor practices These consolidated cases were tried at Brooklyn, New York, on June 16 through 19 and July 14 through 16, 1975 Issues LOCAL 531, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA DECISION STATEMENT OF THE CASE JULIUS COHN, Administrative Law Judge On April 14, 1975, the Regional Director for Region 29 issued an order consolidating cases and a complaint against Samuel Liefer and Harry Ostreicher, a Copartnership, d/b/a River Man- or Health Related Facility, herein called Respondent River Manor, and Local 531, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called Respondent Union or Local 531 The complaint was based upon charges filed on January 14, 1975, and on January 21, 1975, respectively by Local 144, Hotel, Hospital, Nursing Home and Allied Health Services Union, affiliated with Service Employees Interna- tional Union, AFL-CIO, herein called Local 144, and served on Respondents the same dates, and upon charges filed March 6, 1975, by Local 1115, Joint Board, Nursing Home and Hospital Employees Division, herein called Lo- cal 1115, and served the same date on Respondents There- after, on June 3, 1975, the Regional Director issued anoth- er complaint against Respondent River Manor based upon a charge filed by Local 1115 in Case 29-CA-4307 and served on Respondent River Manor on April 16, 1975 On June 3, the Regional Director issued an order consolidat- ing Case 29-CA-4307 for hearing with the aforementioned cases The complaints allege that Respondent River Manor un- lawfully solicited and by threats and promises of benefit induced employees to sign authorization cards designating Respondent Union as their representative It is further al- leged that the Respondents executed and maintained in effect a recognition agreement which was signed notwith- standing that Respondent Union did not represent an un- coerced majority of the employees covered by said agree- ment By having thereby rendered unlawful assistance to Respondent Union, it is alleged that Respondent River Manor violated Section 8(a)(1) and (2) of the Act, by its execution of the aforesaid agreement and attempting to enforce a union-security clause, it is alleged that Respon- dent Union violated Section 8(b)(l)(A) and 8(b)(2) of the Act In addition the complaints allege that Respondent River Manor unlawfully discharged certain of its employ- ees because of their activities on behalf of Local 144 or Local 1115, and in Case 29-CA-4307 it is further alleged that Respondent River Manor not only violated Section 8(a)(3) of the Act but also violated Section 8(a)(4) of the Act because it discharged an employee who gave testimony under the Act Finally the complaints allege commission of Whether licensed practical nurses employed by Respon- dent River Manor are supervisors or agents acting on be- half of Respondent River Manor Whether Respondent River Manor unlawfully assisted Respondent Union by soliciting its employees to sign cards designating Respondent Union as their collective-bargain- ing representative Whether Respondent River Manor promised benefits to employees should they sign cards designating Respondent Union as their representative Whether Respondent River Manor threatened employ- ees with discharge or other reprisals if they refused to sign authorization cards for Respondent Union Whether Respondent River Manor unlawfully permitted Respondent Union to conduct union business on the prem- ises during worktime Whether the Respondents unlawfully executed, main- tained in effect, and enforced a recognition agreement at a time when the Respondent Union did not represent an un- coerced majority of the employees of Respondent River Manor Whether Respondent River Manor unlawfully refused to permit Local 144 and Local 1115 entry to its premises and accord them the same privileges as Respondent Union Whether Respondent River Manor unlawfully interro- gated certain of its employees Whether Respondent River Manor discharged certain of its employees in violation of Section 8(a)(3) of the Act Whether Respondent River Manor discharged an em- ployee in violation of Section 8(a)(4) of the Act All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-examine witnesses, to argue orally, and to file briefs Briefs submit- ted by the General Counsel and Respondent River Manor have been carefully considered Upon the entire record of the case and from my observa- tion of the witnesses and their demeanor I make the follow- ing FINDINGS OF FACT I THE BUSINESS OF THE COMPANY Respondent River Manor is a copartnership composed of Samuel Liefer and Harry Ostreicher, with a principal place of business in Brooklyn, New York, where it is en- gaged in operating a health-related facility providing room and board, nursing supervision, and ancillary care and other related services for residents Since it commenced operations on August 26, 1974, Respondent River Manor has derived gross revenues at an annual rate in excess of $100,000, and during the same period it purchased and received at its place of business food products and other goods and materials valued at an annual rate in excess of 230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD $50,000, of which goods and materials valued at an annual rate in excess of $50,000 were received from suppliers lo- cated in the State of New York, each of which suppliers having received such goods and materials in interstate commerce directly from States other than the State of New York The complaint alleges, Respondent River Manor ad- mits, and I find that Respondent River Manor is an em- ployer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act II THE LABOR ORGANIZATIONS INVOLVED Respondent Union, Local 144, and Local 1115 are labor organizations within the meaning of Section 2(5) of the Act III THE ALLEGED UNFAIR LABOR PRACTICES INVOLVED A The Alleged Violations of Section 8(a)(2) of the Act 1 The supervisory status of the licensed practical nurses In August 1974 Respondent River Manor commenced operations of its nursing home, a six-floor facility of which only two floors were in operation during the period when the Respondent Union was engaged in organizing the em- ployees Elsie Harrington, a registered nurse, is the director of nurses and is responsible for the entire nursing operation in River Manor Thus she supervises the licensed practical nurses (LPN's), aides, and orderlies Harrington is respon- sible for hiring and firing of employees in her department and prepares work schedules, floor assignments, rosters, and assignments of patients requiring special attention to the aides and orderlies Harrington, of course, is admitted- ly a supervisor within the meaning of the Act The complaint alleges that LPN's Mercado, Russell, Link, and Pierre are supervisors or agents within the mean- ing of the Act i The record in this area, based upon the testimony of Harrington, the LPN's, as well as employee witnesses, reveals the following the LPN's cannot hire, fire, lay off, or promote employees Nor can they give rais- es to employees or discipline or warn employees, or effec- tively recommend any of the above actions In this connec- tion, the record does show that LPN's did report to Harrington concerning the work and conduct of aides or orderlies but it is clear that an LPN could take no action in that regard The LPN's punch the timeclock and are paid on a weekly basis It appears that from time to time the LPN on the afternoon or night shift would occasionally telephone for a replacement in the event an aide or orderly reported that he or she could not come or failed to appear for work However, such calls were made from a call-in list of so-called per diem people prepared and maintained by Harrington It was the custom to call the top name on the list and if that person was not available the LPN would communicate with Harrington who was always available to telephone for further instructions It is clear that such occa- 1 At the hearing the General Counsel was permitted to amend the com- plaint so as to include Pierre as an alleged supervisor or agent sional action on the part of a LPN does not involve the exercise of any independent judgment on her part which would indicate supervisory authority One of the LPN's, Mercado, worked days at the same time as Harrington her- self and she had been instructed by Harrington to prepare a form or schedule assigning certain duties to the aides and orderlies The purpose of this form was to assign patients in such a way to the aides and orderlies on each shift so that the more difficult patients would be rotated among them The preparation of this schedule by Mercado did not in- volve any exercise of individual judgment and is not suffi- cient, absent all other indicia, to constitute Mercado as a supervisor The aides and orderlies have their regular routine duties and will report to the LPN's only in cases of medical emer- gency In such instances, the LPN will direct the aide as to what she could do to help the LPN concerning matters such as taking temperature, checking vital signs, and the like The General Counsel argues that Russell, the LPN on the night shift and Link, an LPN who relieves Russell on the night shift when Russell is off, are supervisors because no acknowledged supervisor or member of management is at the facility during that shift Russell testified that, if required, she could change the floor on which an orderly was working and had been so instructed by Harrington But since the aides and orderlies already had received their assignments from schedules prepared by Harrington such a change by Russell, if it occurred, would be rare and then only in connection with medical requirements In case of serious medical emergency, the LPN on the night shift is instructed to call either Harrington or the doctor They are not permitted, for example, to call an ambulance to send the patient to the hospital Only the doctor or Harrington can authorize them to take such action The night shift LPN has no more authority than the others The fact that the director of nurses is not present on the night shift does not in and of itself create supervisory authority in the LPN on that shift 2 Finally, factors such as the LPN's giving out paychecks to employees, particularly on the night shift, and reporting employees to Harrington who have been late, or even transmitting a warning from Harrington to an employee concerning lateness, absent the power to make effective recommendations, are not sufficient to confer su- pervisory status upon an LPN as these matters are routine and most importantly, do not involve the exercise of any independent judgment on the part of the LPN In sum, the LPN's exercise a function of giving direc- tions to aides and orderlies in connection with nursing and medical care and in that respect they can call upon the aides and orderlies to assist them In these circumstances, particularly as they are not possessed of any of the usual indicia of supervisory authority, I find that the LPN's are not supervisors within the meaning of the Act 3 Z Leisure Hills Health Centers Inc, 203 NLRB 326 (1973), relied upon by the General Counsel in this connection in inapposite In that case the LPN on the night shift found by the Board to be a supervisor had been designat- ed as such by the employer and it was found that she exercised independent judgment ag Mountain Manor Nursing Home 204 NLRB 425 (1973) Wing Memorial Hospital Association 217 NLRB 1015 (1975) Eugene Good Samaritan Cen ter 191 NLRB 35 (1971) RIVER MANOR HEALTH RELATED FACILITY 231 However, as it does appear that the LPN's did serve as a conduit between Harrington and the aides and orderlies, the question as to whether the LPN's are agents of Respon- dent River Manor will be discussed in connection with the allegations of unlawful assistance 2 Facts as to solicitation for Respondent Union Respondent River Manor commenced operations of the nursing home in August 1974 As previously noted, Elsie Harrington is the director of nursing services, and Marvin Ostreicher is the administrator of the facility In October Ostreicher introduced Harrington to two representatives of Respondent Union Harrington recalled that one was named Valentino and does not recollect the name of the other representative but they were introduced to her by Ostreicher as representatives of Local 531 During their conversation Harrington told them that she was not inter- ested in a union They asked her if there were any LPN's around and she informed them that Mercado was present Harrington then went to Mercado and asked if she was interested in a union and Mercado told her that she was Harrington stated that she brought Mercado down through the corridor to a point outside her office and then intro- duced her to the representatives of Respondent Union Harrington says she then went into her own office, closed the door, and does not know where the others went or what they did Mercado identified one of the representatives with whom she spoke on that day as Charles Kranitz, who is vice president of Respondent Union Mercado also recol- lected that this meeting occurred on October 23 since that is the date that she signed her own card for Respondent Union She further said that the two representatives came out of Ostreicher's office and then were introduced to her by Harrington As a result of her conversation with them, she was given some membership cards and told to have the people sign them and that they would be back to pick up cards Mercado states that thereafter she gave out cards to the nurses aides working on her tour of duty Just before 4 p in she spoke to Allen, the LPN on the afternoon shift, and gave her cards to be distributed to the aides and orderlies on that shift In addition Mercado gave Allen enough cards to leave for LPN Russell on the midnight to 8 a in shift Mercado saw a representative from Respon- dent Union a week later, Montanez, and gave him some of the cards which she had obtained Mercado, a witness called by the General Counsel, maintained that Harrington merely told her that there were two men from Local 531 who wanted to talk with her Harrington did not say what they wanted to talk about nor did she say anything about Local 531 or benefits, nor did Harrington tell her, according to Mercado, the reason that she wanted her to meet the union representatives Harring- ton merely said she could talk to these people from Local 531 4 4 When asked by the General Counsel whether Harrington said anything to her prior to the introduction, Mercado stated that there was something in the statement she had given to the Board which she wanted to change The record does not reveal what Mercado had in mind On December 9, 1974, the Respondents entered into a recognition agreement following a card check conducted by an arbitrator who certified that Respondent Union had authorization cards from a majority of the employees in the unit The recognition agreement provided for the com- mencement of negotiations after receipt of union demands by the Employer, and further provided that the basic agreement should be the Union's usual contract containing union-shop and checkoff clauses, among other things A further provision called for arbitration in the event the par- ties could not agree on the terms of a contract Other than the circumstances of the introduction of the Respondent Union's representatives to Mercado as related above, certain other acts of illegal assistance and coercion are alleged in connection with the signing of cards by indi- vidual employees Vincent Cox, a dishwasher, testified that one day in Oc- tober he saw Ostreicher speaking to Kranitz and another union representative whom he identified as being a Spanish person They were sitting at a table in the staff dining room Cox did not hear what they were talking about nor did they talk to him A day or two later the Spanish union representative saw him in the kitchen and asked to speak to the kitchen people in the dining room He told the kitchen people that they would be making more money if they signed cards and Local 531 obtained a majority The repre- sentative gave Cox a card which he did not sign at that time Cox stated that a few days later a man, whom he could not identify but believes came from the office, asked if the kitchen staff had signed the cards for Local 531 Cox said he had not When Cox asked whether he had to sign, the office man said if he did not sign the card he could not work there any longer Thereafter, a union representative came in and Cox signed and dated the card for him Cox further testified that in January he was told by a cook that he had to sign a paper before getting his pay- check Cox went to the office where the bookkeeper showed him a checkoff card for dues deduction and told him that if he did not sign this card he would not get his check Cox refused to sign and the bookkeeper called Os- treicher who ordered him to give Cox the check Cox did not know the name of the bookkeeper Cox then signed the checkoff card Marietta Spadaro, a nurses aide, testified on behalf of the General Counsel that she commenced working at Re- spondent River Manor on January 3, 1975, after the execu- tion of the recognition agreement On January 16 when she went to Harrington's office to pick up her check, Harring- ton told her to sign an application and checkoff authoriza- tion card for Respondent Union Spadaro signed the card and a union representative came in and Cox signed and dated the card for him Enid Hoshing was hired on December 17 by Harrington as a nurses aide Hoshing stated that on January 16 when she went to the office to get her paycheck, Harrington gave her a card and told her to sign it Hoshing asked what the card was about and a nurses aide, Robinson, who was pres- ent, said that it was a card for Local 531 Harrington then said that if she did not sign the card Hoshing would not get her check Hoshing signed the card and Harrington gave 232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD her the check I do not credit Hoshing's testimony with respect to the threat that she would be fired if she did not sign the card Not only does Harrington deny making any threat to Hoshing, but the latter never mentioned it in the course of her statement given to a Board agent 8 days after the occurrence Moreover, Robinson did not corroborate this event even though she was presents There was some conflict whether Hoshing had signed one or two cards in Harrington's office on January 16 as only a sick and welfare card was received in the record Although in her statement Hoshmg only referred to signing one card, she stoutly maintained at the hearing that she did indeed sign two different cards and identified an applica- tion and checkoff authorization card of the Respondent Union as being one of the cards she signed I credit Hosh- ing in this matter The fact that an authorization card was not produced by Respondents pursuant to subpena does not preclude a finding that Hoshing actually signed a card Moreover, Harrington freely admitted that during the months of January and February she gave out such dual purpose cards to many employees Nor is it likely that a sick and welfare fund card would be requested of an em- ployee who had not signed an application for membership and checkoff card Mary Townsend, an aide, was hired by Harrington on November 6 and signed an authorization card for Respon- dent Union on November 20 Townsend stated that she was given the card by Mercado who told her that there was a union which she would like her to join, that it was Local 531, a good union and that Harrington wanted everyone to hurry up and join to get more benefits Townsend replied she wanted to think about it, but Mercado told her if she wanted to continue to work here she had better sign the card Townsend then signed Mercado also told her that she had herself signed a card and Harrington wanted all employees to sign Albert Hazell, an orderly, testified that on November 28 he signed an authorization card for Respondent Union which had been given him by Link, the LPN who filled in on the night shift during the absence of the regular LPN, Russell He stated that Link told him that Harrington would like him to fill out the card without any other em- ployees knowing about it and return it to Link the next day, which he did Hazell also recalled signing a previous card for Respondent Union in October which had been given to him by other employees who told him that Har- rington had said he had to sign a card in order to keep his job Brenda Frazier, an aide, was hired on October 30 and worked the shift from 12 midnight to 8 a m She signed an authorization card dated November 28 for the Respondent Union At the time, Frazier was in the first floor staffroom with Russell, the LPN, Dennis Williams, an orderly, and Allen, the LPN from the previous shift Russell came over 5 Alma Robinson an aide, testified at the hearing that she signed a sick and welfare fund card on the same date as Hoshing She did not mention this incident Of course, in her testimony Hoshing referred to a Miss Rob inson' and it is conceivable that she did not mean the Alma Robinson who appeared as a witness In any event if another Robinson was employed at that time, such person did not testify at the hearing to Frazier and gave her the card and asked her to sign it Frazier read the card and asked who was a truckdriver, that this was a nursing home Russell replied that Harring- ton had said that those who do not sign the card would be fired Frazier then signed the Local 531 card At about the same time, Williams received a card for Respondent Union from Russell,6 who stated that Harrington had given her the card for him to sign and that she wanted it back in the morning Williams did not sign the card at once and later Russell asked for it, saying that she wanted it quickly be- cause Harrington said that anyone who does not sign the card would be fired Williams, who had put the card in his locker, obtained it at the end of the shift, signed it, and returned it to Russell Williams also recalls Frazier and Hazell being present at the time Russell, testifying on behalf of Respondents, stated that when she came on duty that night she found the authoriza- tion cards for Respondent Union on her desk Allen, the LPN from the prior shift, told her "there are some cards on the desk for the Union, give them to the ones that come in, have them sign and leave it " Allen did not say where she got the cards or to whom Russell was to return them, she merely said to leave them on the desk Russell denied that Allen told her the cards had been left by Harrington Rus- sell testified that she heard the employees talking about not wanting a Teamsters union, but she said they still signed the cards although they did not care for that Union How- ever, she denied that Harrington ever asked her to distrib- ute these cards, stating that she does not see Harrington when she comes in to work at 1 I p in She further denied telling these employees that if they did not sign they would be fired, or that Harrington had said that they must sign the cards Finally, Russell said that at the end of her shift she left the cards on her desk and she believes that the LPN on the morning shift picked them up Alma Robinson commenced working as an aide at 12 midnight on December 3 and she testified that, several days after she began working, Russell gave her an authori- zation card for Local 531 and told her to sign it Robinson did not do so immediately, and the next day Russell asked her if she had signed the card and she replied she had not Russell then obtained another card and told her to sign it now because Harrington wanted it Robinson then signed the card and gave it back to Russell 7 There were two instances of employees alleging that they had signed cards for the Respondent Union which had been given to them by Harrington herself Neither of these cards had been produced by the Respondent Union pur- suant to the subpena Esmond G Phillip, an orderly, began working in September 1974, right after Labor Day He stat- ed that about 3 weeks after the commencement of his em- ployment Harrington gave him a card for the Respondent Union and told him that everyone had to sign it Phillip 6 Although Williams card is dated November 27 while Frazier s was dat- ed November 28 it appears from the testimony of Frazier Williams and Russell that the signing of cards by the employees on the midnight to 8 a in shift occurred about the same time ' A Local 531 authorization card signed by Robinson was not produced However Robinson was able to identify a blank card as the same as the one she had signed On January 16 she signed a sick and welfare card of Re- spondent Union which was received in evidence I credit Robinson Russell did not deny the incident RIVER MANOR HEALTH RELATED FACILITY 233 immediately signed it and gave it back to her At this time Phillip was working 4 p in to 12 midnight and the incident allegedly occurred at about 4 30 p in, a time when Har- rington was still at the facility He stated that Harrington told him that all the workers had to sign the card Phillip signed and dated the card and then walked over and re- turned it to Harrington who was talking to Allen, an LPN, at the time As to the card he signed, Phillip stated it was pink with blue writing and then changed his testimony to say it was a white card with black lettering Harrington denied giving any union authorization card to Phillip and asking him to sign it It is also alleged that Harrington gave Mary Terrell, a nurses aide, a card for the Respondent Union Terrell be- gan working on December 4 Although she insisted that she received an authorization card for Respondent Union from Harrington, she is not certain of the date At the outset she stated that about a week after she was hired she was approached by Mitchell, another aide, who asked her whether she had received a union card for Local 531 and Terrell replied that she had not Allegedly Mitchell told her that she was passing out cards only to people whom Har- rington told her to approach Terrell said about 1 week after talking to Mitchell she had a conversation with Har- rington about a card Presumably that would have oc- curred approximately December 18 Thereafter Terrell tes- tified that while she could not be sure of the date when she signed the card for Respondent Union she could place it in the following sequence of events She said that on a Satur- day in December she obtained an authorization card from Local 144, on the following Monday she talked with Har- rington about the card from Respondent Union, and on the next Wednesday she had a discussion in the elevator of the building with Mitchell concerning a meeting called by Respondent Union If this chronology is correct, it appears from the records of the Respondent River Manor that the only occasion in the month of December in which Terrell worked on a Saturday, Monday, and Wednesday was De- cember 14, 16, and 18 It would thus appear that the con- versation with Harrington occurred on December 16 Ac- cording to Terrell, Harrington called her while she was working on the first floor and told her that she had a card for her to sign She said she did not have it with her but would bring it back later Harrington returned 20 minutes later and told Terrell she wanted her to sign the card Ter- rell stated she took the card from Harrington, looked at it, and asked whether she had to sign it and Harrington re- plied she did Terrell took the card into an empty room, read it, signed it, and took it to Harrington's office where she placed in on the desk Harrington did not say anything to her Terrell further testified to a conversation she had with LPN Pierre in mid-December 8 Pierre allegedly told Terrell that she had heard that Local 531 was coming in and that they had appointed Mitchell to represent the aides and Mercado to represent the LPN's Terrell asked who ap- 6 As noted the General Counsel was permitted to amend the complaint so as to allege that Pierre was a supervisor and/or agent However, General Counsel at the time conceded that he does not allege that Pierre committed any unfair labor practices pointed them and Pierre told her to use her head, that nobody but Harrington and Ostreicher appointed them Allrich Normil, a cook, testified that on a payday in November he went to pick up his paycheck from the book- keeper (Abraham Zehnwirth), who told him he would have to sign a membership card of Respondent Union in order to obtain his check Normil stated he then signed the card and received his check This is another alleged card not produced by Respondents in accordance with the subpena Zehnwirth testified that he had never given out to employ- ees or requested that employees sign authorization cards in November or December on behalf of the Respondent Union He did state, however, that in January he distribut- ed applications and checkoff cards of Respondent Union as well as sick and welfare cards to be signed by the em- ployees when they came in for their checks, telling them they had to sign the card to get their checks In fact he said he did this with all of the employees except those whom he did not see such as the night shift As to these, he gave the checkoffs and sick and welfare cards to the LPN's with instructions that they have the employees sign them so that they could get a check Zehnwirth denied giving out any other cards to employees and stated that he did not recall ever seeing an application for membership card of the Re- spondent Union 3 Analysis concerning card solicitation The various allegations of illegal assistance both ante- date and postdate the execution of the recognition agree- ment by the Respondents on December 9 A determination of whether the recognition agreement was valid, that is, whether it was executed at a time when the Respondent Union represented an uncoerced majority of the employees of Respondent River Manor, is of course dependent on events preceding the recognition agreement, which will be first discussed Respondents' witnesses verify that on October 23, 1974, the administrator of Respondent River Manor, Marvin Ostreicher, introduced Director of Nurses Elsie Harrington to Charles Kranitz, vice-president of Respondent Union, and another representative of that organization In turn, Harrington introduced LPN Mercado to the union people After a short conversation the Local 531 representatives gave Mercado authorization cards to distribute among the employees and to obtain their signatures As a result there ensued the events involved in the solicitation of authoriza- tion cards described above which are alleged to constitute unlawful assistance The Board has held that a certain amount of employer cooperation with the efforts of a union to organize is insuf- ficient to constitute unlawful assistance Thus, the Board found no violation in a recent case relied upon by Respon- dents, where the employer not only introduced the union and its representatives to its premises but also provided it with an opportunity to address a meeting of its employees during worktime, and the employer directed certain em- ployees to go into a room so that a union representative 9Jolog Sportswear, Inc 128 NLRB 886 (1960) 234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD could speak to them 10 In the instant case it is urged that the assistance rendered is somewhat less than occurred in Longchamps since we have merely the introduction of the union representatives by the employer and not a meeting But the Longchamps case rests on the fact that the employer's conduct was limited to the introduction of the Union and the on-premises meeting It was stressed that there was no management involvement in the solicitation of authorization cards, employees were not threatened with reprisals if they did not join nor promised benefits if they did join the union, nor were management representatives present when the cards were signed In short, Respondents' reliance on such cases is misplaced as it presupposes an atmosphere free of coercion of employees by management or its representatives It is clear where authorization cards are solicited by supervisors or employees who have been made agents by the employer such conduct would consti- tute unlawful assistance to a union 11 Therefore the crux of the allegations with respect to unlawful assistance lies with the conduct of Harrington and whether the actions of the LPN's can be attributed to Respondent River Manor With regard to Harrington, she is alleged to have ob- tained authorization cards from two employees, an activity which she categorically denies The first is Esmond Phillip, a witness whose testimony can be at best described as un- certain Phillip stated that he began to work early in Sep- tember, right after Labor Day Since Labor Day 1974 was September 2 it can be assumed that he commenced work- ing during that week (The record does not indicate the exact date) He then states he signed a card for Harrington about 3 weeks after he began to work This would put the occurrence somewhere around the end of September or even possibly early in October The introduction of the union representatives to Harrington and to Mercado oc- curred on October 23, and there has been no testimony that any card was signed prior to that date At the outset Phillip testified that he signed a card which was pink and then later changed his testimony to say that the card was white The pink card to which he referred is the copy of the dual purpose application for membership and dues deduc- tion authorization card apparently used by Respondent Union after the recognition and no card of this type in evidence bears any date prior to January 1975 Therefore, while it may be possible that Phillip signed some paper, card, or document for Harrington, I cannot conclude from his testimony that this was an application for membership in Respondent Union The other employee alleged to have been given a card for Respondent Union by Harrington was Mary Terrell, who had a dim recollection concerning the dates As Terrell's employment began December 4 and the recogni- tion agreement was signed December 9, there is slight mar- gin for error It has been noted above that Terrell can only pinpoint the date she signed this card as a result of a se- quence of three events occurring on a Saturday, Monday, and Wednesday The records of the nursing home reveal that the only time in December in which she worked such a sequence of days was December 14, 16, and 18 As this 10 Longchamps Inc, and its wholly owned subsidiary S and B Restaurant of Huntington, d/b/a Steak and Brew of Huntington 205 NLRB 1025 (1973) 11 See Broyhill Company 210 NLRB 288, 294 (1974) was her final and positive recollection, the solicitation by Harrington on behalf of the Respondent Union could only have happened on December 16 Since that is a week after the recognition agreement was signed, Harrington's alleged conduct, even if it had occurred, could have no bearing on the question of whether the Respondent Union represented an uncoerced majority of the employees on December 9 In conclusion, with respect to the conduct of Harrington, I find the evidence insufficient to establish that Harrington solicited an authorization card for Respondent Union from Phillip or, indeed, if he ever signed one, nor does the evi- dence show that Harrington solicited an authorization from Terrell prior to the date of recognition of the Union In trying to establish a course of conduct of illegal assis- tance, the General Counsel places principal reliance on the activities of the LPN's, Mercado, Russell, and Link, in soli- citing authorization cards for Respondent Union from em- ployees Although it is clear that the LPN's solicited many cards, the specific prerecognition conduct alleged is with respect to cards obtained by Mercado from Townsend, by Link from Hazell, and by Russell from Frazier, Robinson, and Williams The Supreme Court has stated that the con- clusion that employees' choice was restrained by the Employer's interference must of necessity be based on the existence of conditions or circumstances which the Em- ployer created or for which he was fairly responsible and as a result of which it may be reasonably inferred that the employees did not have that free and unfettered freedom of choice which the Act contemplates 12 Thus, if the activi- ties of Mercado, Link, and Russell occurred as described above by the employees, and the Respondent River Manor is responsible for these actions of the LPN's, then unques- tionably it would have coerced and interfered with the em- ployees' freedom of choice and thereby rendered illegal as- sistance to the Respondent Union I have already found that the LPN's involved in these incidents are not supervi- sors within the meaning of the Act The question remains as to whether they are agents or representatives so as to bind their Employer for their actions At the outset I credit the versions of the events as related by employees Townsend, Hazell, Frazier, Williams, and Robinson and discredit the testimony of Mercado and Russell Townsend testified that Mercado told her to join Local 531, a good union, that Harrington wanted everyone to join up to get more benefits When Townsend replied that she wanted to think about it, Mercado said, "if you want to continue to work I suggest you sign the card" Townsend testified in a forthright manner and I believe her Mercado testified at the hearing but did not deny Townsend's account nor did she allude to it in any man- ner13 Despite Russell's denial that she used Harrington's name or said that employees would be fired if they did not sign the cards, I do not credit her testimony as to these matters Russell does not deny but rather admits that the employees on the night shift, including Frazier, Williams, Hazell, and 12 N L R B v Link Belt Company et al 311 U S 584, 588 (1941) 13 Mercado was called as a witness on behalf of the General Counsel and it was clear that she was hostile and her demeanor reflected a lack of can- dor In addition as will be hereinafter discussed, her testimony in certain areas was implausible I do not credit her RIVER MANOR HEALTH RELATED FACILITY 235 Robinson, discussed among themselves the fact that Re- spondent Union was a Teamsters union and that they were employed in a nursing home In fact she testified that "they didn't care for the Union but they still signed the card " Since the employees involved did not appear to want to join the Respondent Union, it is logical to assume that they signed the cards despite their feeling as a result of the im- petus received from the remarks of Russell Nor is it con- ceivable that these employees just voluntarily picked up and signed authorization cards which were lying on Russell's desk Similarly I credit the testimony of Hazell with respect to his solicitation by Link, the LPN who worked nights in the absence of Russell, as his testimony in this regard is uncon- tradicted on the record 14 On the basis of the above findings, it is clear that many authorization cards were obtained by the LPN's as a result of threats of discharge or promises of benefits The remain- ing question is the responsibility of the Respondents for their activities I find in all the circumstances that the man- agement herein must bear that burden It was the Respon- dent River Manor that brought representatives of Respon- dent Union into its premises and introduced them to LPN Mercado She was designated for this purpose This initiat- ed the campaign, the kickoff came from the Employer, not the employees Thereafter, union representatives were seen by employees talking to the administrator and they were permitted to go through the premises soliciting cards on company time 15 The brunt of the solicitation was delgated to the LPN's, starting with Mercado I do not credit the assertions of Harrington and Mercado that the latter was uninstructed How then could Mercado have free rein in soliciting cards from employees on the day shift, then instructing Allen to do the same on the afternoon shift, and also leave cards for Russell on the last shift? Russell denied being told by Allen what to do with these cards, but she seemed to know The name of Harrington was not used in vain by the LPN's, and the assertion of Russell that the employees signed cards voluntarily after indicating their dislike of Local 531 is implausible But, absent specific evidence that the LPN's were in- structed or authorized to engage in the above-described conduct, Respondent River Manor is responsible because they have been placed by management in a strategic posi- tion where employees could reasonably believe they speak on its behalf 16 A nursing home or health-related facility, as it is called, is quite different from the normal employing entity because of the medical services it renders It is un- contradicted that LPN's are in "charge" in that area How- ever, the Board will in all cases apply the statutory criteria in determining supervisory status so that in some cases 14 Link did not appear or testify at the hearing Finally I do not credit Normil that Zehnwirth refused him his paycheck unless he signed a Local 531 card in November Zehnwirth credibly denied that he even distributed authorization cards while freely admitted giving out checkoff cards in Janu- ary 15 Cox testified without contradiction that Ostreicher spoke to Krani'z in the dining room Union representatives came into the kitchen 16 See Mississippi Products Inc, 103 NLRB 1388 1393 (1953) enfd 213 F 2d 670 (C A 5 1954) even a registered nurse will be found not to possess such authority 17 In any case, by virtue of the medical responsi- bilities, the LPN is in a position of directing the aides and orderlies to that extent When this is coupled with certain other duties, albeit routine, affecting the working condi- tions of these employees, it may well be concluded in some case that they may be regarded as an arm of management Some of these duties in this case include handing out checks, Russell, upon express instruction from Harrington, warning Frazier and others about lateness, Harrington re- ceiving reports from the LPN's as to their performance and work habits, changing the work location of an orderly when required, calling for a replacement as needed, and transmitting information from and to Harrington These factors lead me to conclude that the LPN's appeared to have close ties with management and when they said Har- rington wanted the employees to sign cards or else (or words to that effect), the employees could reasonably be- lieve that the LPN's were delivering her message I find, therefore, the Respondent River Manor is responsible for the actions and conduct of the LPN's as described above 18 Accordingly, I find that by assisting Respondent Union in organizing its employees Respondent River Manor has given assistance and support to Respondent Union in vio- lation of Section 8(a)(2) of the Act By accepting such as- sistance and support, and the exclusive recognition, Re- spondent Union has violated Section 8(b)(l)A) of the Act 19 I further conclude that the authorization cards sub- mitted by Respondents to the arbitrator who made the card check were tainted by the conduct and pressures exerted upon the employees by the representatives of the Respondents and the other forms of assistance rendered to Local 531 By granting recognition to a union which did not represent an uncoerced majority of its employees, Re- spondent River Manor violated Section 8(a)(2) and by its acceptance Respondent Union violated Section 8(b)(1)(A) of the Act 20 The General Counsel has also alleged acts of unlawful assistance on the part of Respondent River Manor which occurred after the execution of the recognition agreement, principally in January 1975 These are with respect to dis- tribution of the so-called dual purpose card, the applica- tion and checkoff authorization blank This was also re- ferred to by the witnesses as the pink card because a pink carbon copy was attached for the employer's use for check- off purpose There is no conflict in the evidence concerning this activity Harrington freely admitted giving these cards to the aides and also to LPN's and, in addition, left some of them in an envelope for the LPN on the night shift to distribute to employees As described above, Abraham Wing Memorial Hospital Association, supra s Broyhill Company, supra N L R B v Dayton Motels Inc 474 F 2d 328 330 (CA 6 1973) 19 International Ladies Garment Woikers Union [Bernhard Altmann] v NLRB 366 U S 731 (1961) 20 Bernhard-Altmann supra In this connection Respondent's contention that the evidence did not show that more than a few employees were coerced is without merit Mercado and Russell admitted soliciting all the employees on their shifts and other uncontradicted testimony revealed that Local 531 representatives were all over the premises including the kitchen The record reveals a pattern of pervasive pressure on all the employees and assistance to Respondent Union Howard Creations Inc, 212 NLRB 179 (1974) 236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Zehnwirth, the bookkeeper, also admitted that he gave out the application and checkoff authorization blanks together with paychecks to the employees in January, and told them that they had to sign the checkoff authorization cards be- fore they received their checks In addition, Zehnwirth stat- ed that, as to those employees who had not picked up their checks in his office, he sent checkoff cards to the nurses with instructions that they have the employees sign them in order to get their checks All of this occurred in January after the recognition agreement was signed, and no collective-bargaining agree- ment has ever been signed As the recognition agreement has been found invalid, this subsequent conduct in January of forcing employees to sign checkoff authorization is clearly unlawful However, even if we assume that the rec- ognition agreement was validly executed, the conduct of Zehnwirth and Harrington in January was still unlawful While employees may voluntarily sign application for membership and dues deduction authorization cards prior to the execution of a collective-bargaining agreement, the above-described conduct can scarcely be considered volun- tary in view of the admission that employees were told that the cards had to be signed before they received their pay- checks I find, therefore, that whether or not the recogni- tion agreement was validly executed the Respondent River Manor violated Section 8(a)(1) and (2) by coercing em- ployees and rendering unlawful assistance to the Respon- dent Union which also violated Section 8(b)(1)(A) and 8(b)(2) of the Act by attempting to enforce alleged union- security provisions and being the recipient of the employer's assistance 21 In view of my findings on this mat- ter of the general distribution of dues-checkoff cards which occurred in January, it is not necessary to further discuss the individual allegations concerning distribution of the same cards at the same time by Harrington, Russell, and Zehnwirth to specific employees, since the remedy in any event would be the same 4 Other alleged acts of assistance Frank McKinney, a business representative of Local 144, visited the Respondent River Manor early in Septem- ber and met there with Harry Ostreicher, one of the princi- pals, and Harrington He asked them about the possibility of hiring some of his union members who had lost their jobs because of the closing of another nursing home in which Ostreicher had an interest In late October or early November McKinney returned with a Mr Morgan, direc- tor of the nursing division for Local 144, and another busi- ness agent Morgan told Ostreicher that Local 144 was in- 21 Despite the allegation in the consolidated complaint that the recogni- tion agreement contained a provision requiring employees to become and remain members in good standing of Respondent Union as a condition of employment, I do not so construe that agreement The recognition agree- ment provided as follows `The collective bargaining agreement shall be 'he Union's usual contract for, and shall, provide, among other things for a union shop checkoff dues and initiations, classifications holidays vaca- tions, general increases , welfare payments, etc I read this provision as merely providing that any collective-bargaining agreement reached between the parties shall contain provisions on the subjects listed Since no agree- terested and would be organizing at Respondent River Manor McKinney stated that his union passed out leaflets on December 28 at Respondent River Manor and on that occasion he attempted to enter the nursing home He was refused admission by a guard who told him that he had instructions not to let in anyone from Local 144 After further organizing activity, McKinney and Albert Hazell passed out leaflets again in late January McKinney tried to enter the facility but was again stopped by a guard who said he had instructions not to let him in McKinney fur- ther stated that he returned in February, passed out cards and leaflets outside the Respondent River Manor, and on this occasion he observed representatives of Respondent Union coming out of the building Once more the guard refused to let McKinney in Finally, on May 1 McKinney went to the premises with two other business agents and observed a representative of Respondent Union going in with material McKinney followed and told the guard he was there to attend a union meeting, and the guard permit- ted him to enter McKinney then told the receptionist he wished to see Ostreicher Instead, Laufer, the assistant ad- ministrator, came out and warned McKinney that he was calling the police When the police actually came, McKin- ney left with his colleagues William Morales, business representative of Local 1115, had been to the Respondent River Manor on several occa- sions in October and November and attempted to distrib- ute authorization cards outside the premises In fact he had been let into the kitchen by Allrich Normil and had given out cards to some of the employees there Thereafter, on December 12, he went through the front door and asked to speak to the administrator Marvin Ostreicher appeared and asked him his business and Morales said he wanted the same opportunity given other unions to speak to the em- ployees Ostreicher told him he was not permitted on the premises and if he did not leave he would call the police In addition, Respondent Union's vice president, Kranitz, testified that on November 20 he held a meeting of the employees in the premises of Respondent River Manor It has already been established that representatives of the Respondent Union were not only introduced to the premises and the employees but were given unlimited ac- cess to employees during working hours and in working areas by Respondent River Manor This occurred before and after the recognition agreement of December 9, which has been found to be invalid During this time, the Respon- dent River Manor denied similar privileges to representa- tives of both Local 144 and Local 1115 although those la- bor organizations requested such access I find that by this conduct Respondent River Manor rendered unlawful aid, assistance, and support to the Respondent Union and thereby violated Section 8(a)(1) and (2) of the Act 22 ment was ever reached, I find no union-security clause or checkoff provision would have been in effect even if the recognition agreement was valid 22 Spartans Industries Inc 173 NLRB 1219 (1968) Russell Coal and Clay Co, 165 NLRB 978 (1967) While Local 144 and Local 1115 engaged in some activity prior to the recognition, it is not clear whether this was exten- sive or even serious in any case neither the General Counsel nor either of these unions allege or contend that the recognition of Local 531 was in contravention of the Board's doctrine in Midwest Piping and Supply Co, 63 NLRB 1060 (1945) Indeed, they stipulated to the contrary RIVER MANOR HEALTH RELATED FACILITY 237 B The Alleged Discriminatory Discharges I Brenda Frazier As previously indicated Frazier was hired on October 30, 1974, as an aide to work on the midnight to 8 a in shift She signed a card for the Respondent Union on November 28 She stated that from that point on she and the other employees on the night shift talked about the Union almost every night since they believed that they needed a union and did not know what to do One night early in January she, Albert Hazell, and Dennis Williams were having a dis- cussion about the Union in the staff room in the presence of Russell, the LPN They particularly discussed the fact that they hadn't heard anything from Local 531 since sign- ing the cards She said that she would call the Labor Board in order to get some information This conversation was corroborated by Dennis Williams and Albert Hazell The following day Frazier called the State Labor Relations Board and informed the agent that she and other employ- ees were forced to sign cards for the Respondent Union and that they now wanted to get another union to repre- sent them Frazier said she was told that the employees could not be penalized for attempting to get another union She communicated this information to Hazell who later called her on January 9 and told Frazier that he had also gone down to the State Labor Board and was given the same information Hazell said that he also had called Local 144 and made an appointment to meet Frank McKinney, the business representative, that night, January 9, at the Respondent River Manor Frazier was not scheduled to work that night, but she met Hazell and McKinney in front of the nursing home shortly before midnight Hazell re- ceived some authorization cards from McKinney and Fra- zier signed one and then left while Hazell went in to work During their meeting they discussed briefly Local 144, sala- ries and benefits, and the like McKinney and Hazell both verify this conversation and meeting On the morning of January 10, Frazier received a tele- phone call from Harrington who told her that she was making up her check and was going to have to let her go because she had heard that Frazier was talking to other employees about Local 144 Harrington said that next week another union would be in the nursing home Frazier admitted being late frequently but stated that Harrington did not mention it when she called to discharge her She also stated that Harrington never warned her although Russell, the LPN, spoke to her about getting to work on time Harrington, the director of nursing, testified that she dis- charged Frazier on the morning of January 9 and not on January 10 as stated by Frazier Harrington said that she had examined the sign-in book for January 8 the last night on which Frazier had worked and noticed that Frazier had again been late and therefore decided to discharge her in view of the fact that she had been late so many times and that her habit of lateness had not improved Harrington said she called Frazier on January 9 and told her she had been late so much that she decided to discharge her, and Frazier said all right Harrington said there was no men- tion of a union in the conversation Harrington admits she never warned Frazier personally about her excessive record of latenesses, but she had asked Russell to speak to her and warn her about this habit Harrington also said that she had spoken personally to several employees about their lateness but could recall that only one employee, whose name she did not remember, had been discharged for late- ness In addition Harrington stated that she had a great deal of trouble with people about lateness, particularly on the night shift, and that it was very difficult to get people to come in on time Respondent River Manor contends that it had no knowl- edge of Frazier's activity, that it discharged her for habitu- al lateness, and that the discharge occurred on January 9 and not on January 10 as contended by the General Coun- sel It argues that since the discharge occurred on the morning of January 9 this would be before Frazier's activi- ty of meeting the union representative, McKinney, and Hazell, on the night of January 9 With regard to Frazier's activity, this was open as was the case with a number of the employees on the night shift From the credited testimony of Frazier, Hazell, Williams, and Robinson, it is apparent that they discussed the situation concerning the advent of Respondent Union and their own preference for Local 144 on several occasions at least in early January if not clearly before These conversations occurred in the staff room in the presence of Russell, the LPN who it has been estab- lished frequently served as a conduit for information to Harrington and management Russell herself testified that Frazier and the others were not happy with Local 531 Moreover, I do not accept Harrington's statement that she discharged Frazier on the morning of January 9 rather than January 10 23 I do not credit Harrington as her de- meanor reflected an attitude of being overly guarded and too studiously careful in her testimony Moreover, I find it inconceivable that Frazier, who, as did Hazell, had already learned something concerning her rights as a result of her visit to the State Labor Board, had not mentioned her dis- charge to McKinney and Hazell when they all met on the evening of January 9 Hazell said he was unaware that she had been discharged on January 9 McKinney, a very cred- ible witness, did not include anything concerning the dis- charge of Frazier in his account of what they discussed and what occurred during this brief meeting that night Dennis Williams, a very active employee on behalf of Local 144 who worked on the night shift and who signed a card on January 10, stated that he had not known at the time that Frazier had been fired for lateness Nor has Respondent River Manor sustained its defense that it discharged Frazier for excessive lateness It is mani- 23 Respondent River Manor sought to bolster Harrington's contention through the testimony of Alma Robinson whose authorization card for Lo- cal 144 is dated January 9 and who testified at one point that she believed she signed her card after Frazier was discharged There was a great deal of confusion during the hearing with respect to the exactitude of dates particu- larly as affecting the employees on this midnight shift Part of this stems from the fact that the aides sign-in book would be dated, for example January 9 and the employees who signed that page and worked the mid- night shift would be actually working from midnight to 8 a in on January 10 Because of this a certain amount of confusion is built into the system so that as I view it it is entirely possible that Robinson s card dated January 9 and the card of Dennis Williams dated January 10 could have been both signed during the same workday or just before or after 238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fest from the records that a great number of employees were late an exceedingly large number of times While con- cededly Frazier may have been late more times than others, some of the other people with long records of late- nesses were not employed the same length of time as Frazi- er In any event, only one employee was ever discharged for lateness, according to Harrington, and no evidence was submitted either as to the name of that employee or the particular circumstances It is apparent that lateness was a problem and a fact of business life with which the Respon- dent River Manor was living Harrington herself testified that almost every one on the night shift had records of latenesses, and, moreover, it was difficult for her to attract people to work on that late shift at the location of Respon- dent River Manor I also note that despite Frazier's record of lateness Harrington did not see fit to discuss the prob- lem with her personally but rather delegated it to LPN Russell In conclusion I find that Respondent River Manor dis- charged Brenda Frazier because of her activities on behalf of Local 144, particularly those in the early part of Janu- ary, including the night before her termination, rather than because of her poor record as to punctuality By such con- duct the Respondent River Manor violated Section 8(a)(1) and (3) of the Act 2 Albert Hazell Hazell was employed in September 1974 as an orderly on the midnight to 8 a in shift Because he was attending school, Harrington arranged to permit him to work a split shift in which his offdays would be Mondays and Wednes- days each week As previously noted Hazell was present at a conversation in the second floor office among Frazier, Dennis Williams, Alma Robinson, and himself, in the pres- ence of Russell, the LPN All of them talked about having signed cards for Respondent Union and not having heard anything about it It was suggested by Williams, who had been a member of Local 144 at one time and which all thought was a good union, that they attempt to bring in that union It was decided that Brenda Frazier would call the State Labor Board and find out the necessary steps to do this A couple of days later Frazier told Hazell that the men at the Labor Board said that they should get a majori- ty of the employees signed up and then take it to the union who would then approach management Hazell stated that he himself called the State Labor Board, verified the infor- mation Frazier had given him, and, on the same day, went to Manhattan and visited the Board where he was told the same thing Hazell said he was also informed that if man- agement fired any of the employees for this activity he should come back and file a charge Hazell then called McKinney, the business representative of Local 144, on January 9 and arranged to meet that night at 11 30 p in in front of the nursing home He met there with McKinney and Frazier and, after a brief conversation, Hazell took authorization cards from McKinney and then went inside the facility Between the nights of January 9 and 13, Hazell gave out authorization cards to many of the em- ployees and in return obtained signed cards from them In addition he gave authorization cards to Spadaro who turned them over to Mary Terrell to solicit on her own shift During this period of time, he also approached LPN Russell and asked her if she would like to sign up with Local 144, and Russell said she would not sign because she did not intend to be working there long Russell in her testimony acknowledged receiving a Local 144 card from Hazell Hazell estimated that he obtained at least 15 cards for Local 144 during this time On January 13 at approximately 8 am, just prior to his leaving, Harrington called Hazell to her office and told him that she understood that he was handing out cards for Local 144 and that because of this and his work she had to let him go She did not tell him what was wrong with his work, but she did say that his job had been a temporary one Hazell asked her whether she knew it was illegal for management to bring in a union and Harrington replied that she did not know anything about a union Hazell asked how it was that Harrington told Link to give him a union card and she did not respond Hazell also asked Harrington who was representing the employees in the Union and Harrington replied that Mercado, the oldest employee, was representing the employees in the Union Hazell said that he left in the middle of the conversation while Harrington was talking about Mercado Harrington testified she had told Hazell that he was being hired temporarily until she could get a staff because of his split days In January the problems caused by his split shift were getting too difficult and she decided to dis- charge him When she saw him in the dining room on Jan- uary 13, she asked him to come to her office She started to talk to him but was unable because he interrupted and said that he was only being called in because of Local 144 Harrington told him she did not know anything about Lo- cal 144 and he responded that Russell had informed her She said Hazell began yelling, got up, and, as he left, she told him he had only been hired temporarily She states that it was only Hazell who mentioned the Union During her cross-examination, Harrington added other reasons for Hazell's discharge she said she noticed that Hazell had come in late the morning of January 13, had been talking to employees, and had engaged in the same conduct the day before She also stated that he had not been doing his work On the basis of the above, I find that Hazell was dis- charged because of his activities on behalf of Local 144 rather than because of the reasons set forth by the Respon- dent River Manor Hazell was engaged in an open pattern of union activity at least a week prior to his discharge, including the solicitation of many employees for authoriza- tion cards for Local 144 In so doing he even solicited LPN Russell, who has already been found to be a source of information for Respondent Moreover, the precipitous na- ture of his discharge without warning during the height of his activity is more than suspicious and the reasons ad- vanced by the Respondent River Manor for his termina- tion are singularly unpersuasive The idea that he was hired temporarily because of his split shift hardly obtains after a period of more than 3 months without complaint He was never asked by Harrington to change his shift Nor was it established that his schedule caused any serious problems in the operation of the nursing home Moreover, RIVER MANOR HEALTH RELATED FACILITY 239 Harrington's belated advancement of additional reasons during her testimony reflects her effort to grasp at straws in piecing together a rationale for the discharge Although she accused Hazell of having been late too often, there is no indication that he was ever warned for this delinquency nor did she ever speak to him concerning his alleged ne- glect of duty or poor work performance Nor was he warned for spending time speaking to other employees, conduct which is alleged only to have occurred during the last 2 days of employment, and was undoubtedly Hazell's activity on behalf of Local 144 Accordingly, I find that by discharging Hazell on January 13 Respondent River Man- or violated Section 8(a)(1) and (3) of the Act 3 Mary Terrell Terrell was hired on December 4 by Harrington as an aide to work on the 8 a m to 4 p in shift In mid-Decem- ber as Terrell was going to work she was given a card for Local 144 by McKinney outside the building She went into the building and began talking with the other aides about Local 144 During their discussion in which the aides agreed that Local 144 was a good union, LPN Pierre said she had heard that Local 431 was coming in and that Mit- chell, an aide, had been appointed to represent them and Mercado was to represent the LPN's When Terrell in- quired as to who appointed them since the employees had not voted, Pierre told her to use her head, that nobody but Harrington and Ostreicher appointed them On January 12 Terrell received Local 144 authorization cards from Spadaro, another aide, who had been given them by Hazell but was afraid of getting involved On that date, as other aides came into work, Terrell distributed cards to at least five of them She picked up the signed cards and gave them to Hazell who informed her at this time that Frazier had been fired and he expected to be fired next Terrell was off the following day, January 13, and while at home she received a phone call from Harrington She was told not to bother to come in any more as Harrington was not satisfied with her work Terrell said thank you and hung up Prior to this, Terrell stated, Harrington had never criticized her work for any reason Harrington stated that she had observed Terrell at her work and noted that she was not a good aide, was a very poor worker, and was very untidy about herself and her appearance Moreover, she did not give good patient care, did not dress them well or bathe them or keep them clean In addition Harrington characterized her attitude as "a lit- tle snippy " 24 In spite of these rather serious complaints, Harrington stated that she never actually warned Terrell 24 Harrington based her "snippy' comment on an alleged report she re- ceived from Russell, the LPN, who told her that Terrell had said that she aid not have to take orders from her Russell had inquired as to why Terrell had not reported to her one morning when she was to commence work at 7 a in Terrell testified that the incident never occurred and that she never worked on a shift beginning at 7 a in before she was discharged The only time she came to work at 7 a in was after she had been reinstated in April In this connection, I credit Terrell rather Harrington and Russell, whom I have previously discredited In addition there is no indication that Terrell was required to come to work at 7 a in at any time prior to her discharge about her performance or attitude Although Harrington thought she talked to Terrell about performance, she could not recollect any specific time or incident, and she express- ly admitted not talking to Terrell about her "snippyness" in connection with Russell's report I find Respondent River Manor's explanation for the discharge of Terrell completely inadequate Terrell was al- legedly discharged for poor performance as well as certain personal habits and yet the supervisor is unable to point to any specific incident or time relating to her performance when she discussed these matters with Terrell On the other hand, Terrell engaged in union activity including the distri- bution of authorization cards and solicitation of signatures openly right up to the last day before she was discharged In addition she discussed the relative merits of Local 144 and the Respondent Union with LPN Pierre It has already been shown that the LPN's frequently reported informa- tion to Harrington and conveyed messages from her to the aides In this connection it may be noted that Harrington pointed to an alleged report she received from LPN Russell concerning Terrell's attitude and relied upon it, she says, in deciding to discharge Terrell In all the circumstances, I conclude that Respondent River Manor discharged Terrell because of her activities in behalf of Local 144 and thereby violated Section 8(a)(1) and (3) of the Act 4 Allrich Normil Normil was hired on September 1 as a cook by Samuel Liefer, one of the proprietors On November 7 he met Lo- cal 1115 Representative Morales outside the nursing home who asked him if there was a union in the place and Nor- mil told him there was not Normil said he would like to have a union and Morales gave him some cards to be dis- tributed and Normil signed a Local 1115 card at that time Morales also told him he was unable to get into the build- ing to talk to the employees because the administrator would not permit him to go in Thereafter, Normil let Mo- rales into the building on several occasions through the backdoor to talk to the kitchen employees On January 10 Normil also signed an authorization card for Local 144 which had been given to him by Hazell Normil stated that during a discussion he had one day in January with the administrator, Ostreicher, about medical insurance, he told Ostreicher he did not want to join the Respondent Union and the latter replied that he would have to join the Union in order to receive any benefits such as medical insurance On March 25, Normil gave an affidavit to the National Labor Relations Board in connection with the investiga- tion of these cards About a week later several of the aides told Normil that he had better be careful because manage- ment knew that he had gone to the Board to give a state- ment Normil could not identify who the aides were who passed on this information to him On April 11 several of the aides stopped working in pro- test against working conditions Normil told them that he supported their causes and said that the next move would be among the kitchen employees Later that day he dis- cussed the poor working conditions with Mark Barsano, the other cook in the kitchen The food service manager, 240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lazarus, was present as well as some employees who Nor- mil is unable to identify In their conversation, they made reference to the lack of a medical program or benefits Normil then went to see Mayer Laufer, the assistant ad- ministrator, and asked him what the working conditions were since they did not have a union or any benefits Ac- cording to Normil, Laufer responded by asking about his activities with Local 1115 and Local 144 Normil said that he thought that the employees had a right to have their own union and then Laufer said what about Local 531 That was the end of the conversation On April 13 Laufer called Normil and told him he want- ed to see him before he left Normil reported to Laufer when he finished working and was told that his services were not needed any more He was not given any other reason, Normil did not ask why and he left Laufer disputed Normil's version of the April I I meeting in his office He said that Normil came in and told him that he couldn't get along with Lazarus and Barsano and that he wanted Laufer to fire Barsano Laufer refused, telling Normil that he thought Barsano was a good cook Laufer further states that the only thing mentioned about unions in this conversation was a statement by Normil that Barsa- no was giving out cards for the Union (referring to the Respondent Union) and Laufer stated that he did not care about unions since Barsano was a good cook The Respondent River Manor contends that it dis- charged Normil because he was not able to handle the cooking for and feeding of the large number of patients resident at the nursing home at the time, that he was in- competent, and that his performance demonstrated by a large number of incidents reached a point where they were unable to keep him any longer Both Laufer and Marvin Ostreicher, the administrator, testified at length to the per- formance of Normil According to them Normil had been reasonably competent at the outset of his employment when there was a small number of patients in the facility However, the initial number of 15 or 20 patients at that time rose to something between 250 and 300 at the time of his discharge They claimed that Normil was not organized enough in his work to cope with the large number of peo- ple Laufer and Ostreicher testified to a large number of inci- dents demonstrating Normil's incompetence It is not nec- essary to go into great detail as to all of these occurrences, but the following indicate the basis for their conclusion He frequently splashed food while serving and on at least one occasion severely burned another employee, 70 pounds of beef stew was lost due to improper preparation by Normil, he served diabetic patients borscht with sugar despite the fact that the kitchen stocked two kinds, one of which was for the purpose of diabetic patients, Normil pre- pared vegetables without washing them, he constantly left food uncovered particularly hot food,25 he left chicken gi- blets in a sink overnight, Normil refrigerated meat and fish in the same pot, he used the unsanitary pot sinK for soak- 25 Apparently the issue of covering the hot food was always debated be- tween Normil Laufer and Ostreicher It appears that Normil left hot foods uncovered to cool off before refrigerating them which is contrary to the local health department regulations ing meats,26 Normil used a nondairy creamer for cooking contrary to instruction The culmination of Normil's trans- gressions occurred during the Passover holidays which commenced on March 27 27 During this holiday, at a time when Normil was the only cook working, he prepared a batch of non-Passover noodles When this was observed by the rabbi, the noodles had to be thrown away Normil ad- mitted doing this but states that they were the only noodles left for him to use by Lazarus According to Ostreicher, in preparation for the Passover holidays, all foods which are forbidden to be used during the holiday were put to one side and covered with sheets so that the cooks would know that they could not use anything under the sheets I credit Ostreicher in this connection as it is reasonable to assume that the gravity of the religious laws would mandate a sys- tem which would facilitate compliance At the time of the noodles incident, Ostreicher was out of town and, when advised by Laufer by phone, it was decided to get rid of Normil at once According to Ostreicher and Laufer, they had discussed over a long period of time the possibility of replacing Normil, but it was difficult to obtain a suitable replacement, particularly because of the location in which the nursing home was situated In any event, they had de- cided that they would replace him as soon as the holidays were over However, when Ostreicher received a call from Laufer as to the noodle incident, he determined to act at once At that time Laufer heard of another nursing home which was closing and was able to hire a cook, Braithe- waite, who had worked there, to commence working on April 16 to replace Normil in the regular rotation Normil had been scheduled to be off on April 14 and 15 Braithe- waite testified credibly that he went to the nursing home on April 10, filled out an application, and was told on that day by Laufer that he was hired With regard to the incidents enumerated above, Normil admitted most of them However, Normil was evasive and changeable in his testimony and I do not credit him He would deny an incident had occurred, then he admitted it, and attempted to excuse it or blame someone else for doing it In view of the fact that there were only two cooks em- ployed at the nursing home during the period and often they did not work at the same time, it would appear to be a rather simple matter to determine the responsibility for any of the events discussed above Both Laufer and Os- treicher spoke to him on many occasions following the var- ious incidents and while they did not threaten him with discharge they nevertheless remonstrated with Normil and tried to explain the proper procedures Normil did not deny that he was spoken to on these occasions although he attempted to vary the impact of what was told to him In any event it is clear from the above that Normil was, at the least, a very unsatisfactory employee While it is true that Normil engaged in certain union activity, this was spread over a period of many months and 26 A health department inspector upon visiting the nursing home had warned against using a sink in which pots were cleaned for the purpose of soaking meats The cooks had been instructed not to do this and to use a separate sink for the purpose of soaking meats The Respondent River Manor operated its nursing home and kitchen in a strictly Orthodox Jewish manner and thus it was necessary to observe all dietary laws and the kitchen and food was subject to inspection by rabbis RIVER MANOR HEALTH RELATED FACILITY does not appear to have been continuous Thus, he signed a Local 1115 authorization card in November and at that time permitted a Local 1115 representative entry to the kitchen There is no indication that Respondent River Manor was aware of this He then signed a card for Local 144 in January and had a conversation with Ostreicher about medical benefits which was uncoercive I do not credit Normil's assertion that Laufer coercively interrogat- ed him in his office on April 11 as the uncontradicted and credited testimony is to the effect that his replacement had actually been hired on April 10, the day before Noted also is the fact that by this time the Board had already issued complaints against the Respondent River Manor I find in all the circumstances that the General Counsel has not es- tablished by a preponderance of evidence that Normil was discharged because of his union activities rather than his palpable incompetence The only evidence in support of General Counsel's con- tention that the Respondent River Manor discharged Nor- mal because he had given an affidavit to the Board is Normil's testimony that he was warned by some unknown employees that management knew that he had given the statement to the Board As this testimony is unsupported and not probative, the 8(a)(4) allegation of the complaint must also be dismissed As I have not credited Normil's testimony concerning his conversation with Laufer on April 11, I conclude that the allegation that he was interrogated in violation of Sec- tion 8(a)(1) by Laufer concerning his activities on behalf of Locals 1115 and 144 be also dismissed In sum, I shall recommend dismissal of the complaint in Case 29-CA-4307 in its entirety C The Violations of Section 8(a)(1) On the basis of the credited evidence and the findings made above and particularly the conclusions that the LPN's acted as conduits and agents of Respondent River Manor in connection with the organizational campaign on behalf of Respondent Union, I further find that Respon- dent River Manor engaged in independent violations of Section 8(a)(2) LPN Mercado promised benefits to Town- send by stating that Harrington wanted everyone to hurry up and join the Union to get more benefits In the same conversation, she also threatened Townsend by telling her that she had better sign the card if she wanted to continue to work This occurred in November as did the conduct of LPN Russell, who told Frazier that Harrington said that those who did not sign Local 531 cards would be fired and told the same thing to Williams Thereafter, the threats by Zehnwirth, the bookkeeper, to employees on January 16, 1975, that they had to sign checkoff authorization cards in order to obtain their paychecks constituted threats in viola- tion of Section 8(a)(1) of the Act In conclusion I find that both promises of benefits and threats of reprisals were made to employees in November in order to induce them to sign authorization cards for Respondent Union and, further, threats were made to force employees to sign checkoff cards in January All of this conduct constituted violations of Section 8(a)(1) of the Act IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE 241 The activities of the Respondent set forth in section III above, occurring in connection with the operations of Re- spondent River Manor described in section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce V THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that they be or- dered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act As I have found that Respondent River Manor recog- nized Respondent Union at a time when that labor organi- zation did not represent an uncoerced majority of its em- ployees and that Respondents entered into a recognition agreement and continued to enforce that agreement by re- quiring employees to execute dues-checkoff authorization cards, I shall recommend that Respondent River Manor be required to withdraw and withhold recognition from Re- spondent Union as the collective-bargaining representative of its employees and to cease giving effect to that agree- ment As it appears that no dues or initiation fees were actually deducted from employees' wages or otherwise col- lected by Respondent Union, I shall not recommend any reimbursement remedy It also appears that Respondent River Manor has rein- stated Brenda Frazier, Albert Hazell, and Mary Terrell to their former positions as nurses aides or orderlies I shall therefore recommend that Respondent River Manor make them whole for any losses they may have sustained and backpay as provided in F W Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing and Heating Co, 138 NLRB 716 (1962) CONCLUSIONS OF LAW 1 Respondent River Manor is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 Respondent Union, Local 144, and Local 1115 are labor organizations within the meaning of Section 2(5) of the Act 3 By recognizing and bargaining with Respondent Union on and after December 9, 1974, when Respondent Union did not represent an uncoerced majority of its em- ployees, Respondent River Manor has violated Section 8(a)(1) and (2) of the Act By permitting representatives of Respondent Union on company premises during company time, by otherwise assisting Respondent Union in obtain- ing union authorization cards from its employees, by caus- ing membership cards in Respondent Union to be solicited by its employees, Respondent River Manor further violat- ed Section 8(a)(2) of the Act 4 By seeking to enforce a provision in said recognition 242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD agreement that a union-security clause be included in any collective-bargaining agreement thereafter negotiated in such manner as to require employees to sign dues-checkoff cards on behalf of Respondent Union, Respondent River Manor has violated Section 8(a)(3) of the Act 5 By discharging Brenda Frazier, Albert Hazell, and Mary Terrell, its employees, because of their activities on behalf of Local 144, Respondent River Manor discriminat- ed against said employees in violation of Section 8(a)(3) of the Act 6 By refusing access to its premises and employees to Locals 144 and 1115 at a time when it accorded such privi- leges to Respondent Union, the Respondent River Manor thereby rendered unlawful assistance to Respondent Union in violation of Section 8(a)(2) of the Act 7 By promising benefits to induce employees to join and threatening employees with loss of employment should they fail to become members of Respondent Union, Re- spondent River Manor violated Section 8(a)(1) of the Act By the acts and conduct set forth in Conclusions of Law 3 through 6, Respondent River Manor further violated Sec- tion 8(a)(1) of the Act 8 Respondent Union, by entering into a recognition agreement with Respondent River Manor at a time when it did not represent an uncoerced majority of the employees of that employer, and by including in said recognition agreement a provision that a future collective-bargaining agreement shall contain a union-security clause, and by maintaining and enforcing that provision so as to require employees to sign dues deduction authorization cards, the Respondent Union has thereby violated Section 8(b)(2) and Section 8(b)l(A) of the Act 9 The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act 10 The General Counsel has not established by a pre- ponderance of evidence that Respondent has violated the Act with respect to the allegations to the complaint in Case 29-CA-4307 Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended ORDER 2a A Respondent Samuel Liefer and Harry Ostreicher, a Copartnership, d/b/a River Manor Health Related Facili- ty, Brooklyn, New York, its partners, agents, successors, and assigns, shall 1 Cease and desist from (a) Recognizing or bargaining with Local 531, Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, as the collective-bargaining representatives of its employees, unless and until said labor organization is certified by the Board as the collective-bar- 29 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 10248 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 gaining representative of said employees pursuant to Sec- tion 9(c) of the Act (b) Giving effect to a certain recognition agreement be- tween Respondent River Manor and Respondent Union dated December 9, 1974, or any extension or modification thereof, and seeking to enforce said agreement by requir- ing employees to sign dues-checkoff cards for Respondent Union (c) Assisting Respondent Union by soliciting authoriza- tion cards on its behalf from its employees, and granting access to its premises for the purpose of solicitation and conducting of meetings by Respondent Union and refusing to accord similar access to Local 144 and Local 1115 (d) Promising benefits or threatening employees with discharge in order to influence their selection or rejection of a collective-bargaining representative (e) Discouraging membership in Local 144, Hotel, Hos- pital, Nursing Home and Allied Health Services Union, affiliated with Service Employees International Union, AFL-CIO, and Local 1115, Joint Board, Nursing Home, and Hospital Employees Division, or any other labor orga- nization, by discharging or otherwise discriminating against employees in respect to their hire or tenure of em- ployment or other conditions of employment (f) In any other manner interfering with, restraining, or coercing its employees in the exercise of rights guaranteed them in Section 7 of the Act 2 Take the following affirmative action designed to ef- fectuate the purposes and policies of the Act (a) Withdraw and withhold all recognition from Re- spondent Union as the representative of its employees for the purpose of dealing with the Respondent River Manor concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other terms or conditions of em- ployment, unless and until the National Labor Relations Board shall certify the Respondent Union as such repre- sentative, and abrogate the recognition agreement with Re- spondent Union covering such employees (b) Make whole Brenda Frazier, Albert Hazell, and Mary Terrell for any loss of pay or other benefits they may have suffered as a result of the discrimination found against them, in the manner set forth in the remedy section herein (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records neces- sary to analyze the amount of backpay due under the terms of this Order (d) Post at the nursing home facility in Brooklyn, New York, copies of the attached notice marked "Appendix A " 29 Copies of said notice, on forms provided by the Re- gional Director for Region 29, after being duly signed by Respondent's representatives, shall be posted by it immedi- ately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- 29 In the event the Board s Order is enforced by a Judgment of the 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 RIVER MANOR HEALTH RELATED FACILITY 243 ing all places where notices to employees are customarily posted Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material (e) Notify the Regional Director for Region 29, in writ- ing, within 20 days from date of this Order, what steps Respondent has taken to comply herewith B Respondent Local 531, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Yonkers, New York, its officers, agents, and rep- resentatives, shall 1 Cease and desist from (a) Giving effect to a certain recognition agreement be- tween the said Respondent Union and Respondent River Manor dated December 9, 1974, or any modification or extension thereof, and seeking to enforce such agreement by requiring employees to sign dues-checkoff cards (b) Acting or purporting to act as the collective-bargain- ing representative of the employees of Respondent River Manor, unless and until it shall have been certified by the Board as the collective-bargainmg representative of said employees pursuant to Section 9(c) of the Act (c) In any other manner interfering with, restraining, or coercing employees of Respondent River Manor in the ex- ercise 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 office copies of the attached notice marked "Appendix B "30 Copies of said notice on forms to be provided by the Regional Director of Region 29, after being duly signed by the Respondent Union's representa- tive, shall be posted by Respondent Union immediately upon receipt thereof, and be maintained by it, for 60 con- secutive days thereafter, in conspicuous places, including all places where notices to members are customarily post- ed Reasonable steps shall be taken by the Respondent Union to insure that said notices are not altered, defaced, or covered by any other material (b) Furnish to the Regional Director for Region 29 signed copies of said notice for posting by Respondent River Manor in places where notices to employees are cus- tomarily posted (c) Notify the Regional Director for Region 29, in writ- ing, within 20 days from the date of this Order what steps Respondent Union has taken to comply herewith IT IS FURTHER ORDERED that the complaint in Case 29- CA-4307 be dismissed in its entirety 30 See fn 29 supra