Multi-Medical Convalescent

MULTI-MEDICAL CONVALESCENT 429 Multi-Medical Convalescent and Nursing Center of Towson and District 1199E, National Union of Hos- pital and Health Care Employees, Retail, Wholesale and Department Store Union, AFL-CIO. Cases 5- CA-7287, 5-CA-7521, and 5-RC-9304 June 30, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND PENELLO On March 24, 1976, Administrative Law Judge Benjamin B. Lipton issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief. General Counsel filed cross-exceptions and a memorandum in support thereof, and Respondent filed a brief in response to the cross-exceptions of the General Counsel. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings,' findings,' and conclusions of the Administrative Law Judge to the extent consistent herewith and to adopt his recom- mended Order as modified herein. 1. The Administrative Law Judge found that Respondent's unfair labor practices were sufficiently egregious to warrant a bargaining order under N.L.R.B. v. Gissel Packing Co., Inc.3 He further found that under our decision in Trading Port, Inc.,4 the bargaining order should be dated from April 21, ' Respondent has excepted generally to the Decision of the Administra- tive Law Judge, contending that he exhibited bias and hostility against Re- spondent which resulted in prejudice to Respondent and a denial of due process We have carefully examined the record and find no basis for these exceptions We have further carefully reviewed the instances in which the Administrative Law Judge limited certain testimony , to which Respondent has also excepted The only exclusion of possibly relevant evidence was that which Respondent sought to adduce to impeach the testimony of witness Conners That evidence , intended to impeach Conners' credibility generally, concerned the circumstances under which he left Respondent's employ, and the Administrative Law Judge stated that at most this would discredit Con- ners only as to the facts concerning his departure , which were not in issue It is well established that an Administrative Law Judge can discredit a portion of a witness' testimony without discrediting the witness generally Under the circumstances , therefore , we do not find that the exclusion of this evidence was prejudicial 2 The Respondent has excepted to certain credibility findings made by the Administrative Law Judge It is the Board's established policy not to over- rule an 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. 3 395 U S 575 (1969) 1975, the date on which the Union had authorization cards from the majority of Respondent's employees in an appropriate unit, as well as the date that Re- spondent embarked on a clear course of unlawful conduct. We agree with these findings. The Administrative Law Judge found it unneces- sary to reach the issue of whether Respondent violat- ed Section 8(a)(5) of the Act because it was not al- leged in the complaint. We disagree. Although the complaint did not allege an 8(a)(5) violation, we deem it appropriate to make such a finding here inas- much as that issue was fully litigated at the hearing and all of the elements of such violation are fully established by the record.' Thus, the parties stipulated, for purposes of the representation proceeding, that on April 21, 1975, the Petitioner orally requested recognition as exclusive collective-bargaining agent and that on the same date the Employer orally refused to grant such recog- nition unless and until the Petitioner was certified by the Board. The parties further agreed as to the appro- priateness of the unit. Additionally, the record estab- lishes that on April 21 the Union had authorization cards from 20 of Respondent's 39 unit employees. Based on the foregoing we find, contrary to the Administrative Law Judge, that Respondent violated Section 8(a)(5) of the Act by refusing to recognize and bargain with the Union on and after April 21, 1975.6 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent , Multi-Medical Conva- lescent and Nursing Center of Towson , Maryland, its officers, agents, successors , and assigns, shall take the action set forth in the said recommended Order, as modified below: 1. Insert the following as paragraph 1(e) and relet- ter the present paragraph 1(e) as 1(f): "(e) Refusing to bargain collectively with District 1199E, National Union of Hospital and Health Care Employees, Retail, Wholesale and Department Store Union, AFL-CIO, as the exclusive bargaining repre- sentative of the Respondent's employees in the fol- lowing appropriate unit: 219 NLRB 298 (1975). 5 Respondent cannot claim surprise by this additional finding inasmuch as the litigation of the remedial bargaining order, including the Union's majority status, the demand, and the refusal, adequately apprised Respon- dent of the likelihood of such a finding 6 Schwab Foods, Inc, d/b/a Scotts IGA Foodliner, 223 NLRB 394 (1976) 225 NLRB No. 56 430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All regular full-time and regular part-time ser- vice and maintenance employees, excluding reg- istered nurses, licensed practical nurses, office clerical employees, professional employees, guards, and supervisors as defined in the Act." 2. Substitute the attached notice for that of the Administrative Law Judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT ask you anything about your union activities, or the union activities of your fellow employees, in a manner which would coerce you regarding your rights under the Na- tional Labor Relations Act. WE WILL NOT threaten you with discharge, lay- off, or other punishment because of your activi- ties or sentiments in behalf of District 1199E, National Union of Hospital and Health Care Employees, Retail, Wholesale and Department Store Union, AFL-CIO, or any other labor or- ganization. WE WILL NOT assign or use our security guards, or any other agents, to spy and report to us on your union activities or sentiments. WE WILL NOT discourage membership in, or activities in behalf of, District 1199E, National Union of Hospital and Health Care Employees, Retail, Wholesale and Department Store Union, AFL-CIO, or in any other labor organization, by discharging employees or in any other man- ner discriminating in regard to hire or tenure of employment or any term or condition of em- ployment. WE WILL NOT refuse to bargain collectively with District 1199E, National Union of Hospital and Health Care Employees, Retail, Wholesale and Department Store Union, AFL-CIO, as the exclusive bargaining representative in the appro- priate unit described below. The appropriate unit is: All regular full-time and regular part-time ser- vice and maintenance employees, excluding registered nurses, licensed practical nurses, of- fice clerical employees, professional employ- ees, guards, and supervisors as defined in the Act. WE WILL NOT in any other manner interfere with, restrain, or coerce you in the exercise of your rights guaranteed in the National Labor Relations Act, which include: To engage in self-organization To form, join, or help unions To bargain collectively through a represen- tative of your choosing To act together for collective bargaining or other mutual aid or protection To refuse to do any or all of these things. WE WILL, upon request, recognize and bargain with District 1199E, National Union of Hospital and Health Care Employees, Retail, Wholesale and Department Store Union, AFL-CIO, as the exclusive collective-bargaining representative of our employees in the appropriate unit. And, if an understanding is reached, embody such un- derstanding in a signed agreement. Since it has been found that we unlawfully discharged Wilma Peay and Vera Owens-WE WILL offer them immediate and full reinstate- ment to their former jobs or, if such jobs no lon- ger exist, to substantially equivalent jobs, and WE WILL pay them for the earnings they lost be- cause of the discrimination against them, plus 6-percent interest. All our employees are free to become or remain, or refrain from becoming or remaining, members of a labor organization. MULTI-MEDICAL CONVALESCENT AND NURSING CENTER OF TOWSON DECISION STATEMENT OF THE CASE BENJAMIN B. LIPTON, Administrative Law Judge: Cases 5- CA-7287 and 5-CA-7521 present a consolidated com- plaint by the General Counsel I alleging that Respondent engaged in certain independent violations of Section 8(a)(1); that Respondent discharged Wilma Peay and Vera Owens in violation of Section 8(a)(3); and that a remedial bargaining order (based on evidence of a majority of union authorization cards) should be issued. Respondent denies the alleged violations. In Case 5-RC-9304, pursuant to a Decision and Direction of Election by the Regional Direc- tor, an election was conducted on May 14 in a unit general- ly consisting of the unlicensed service and maintenance employees at Respondent's nursing home. The results of the election show that of 34 eligible voters, 15 cast votes for the Union, 16 cast votes against the Union, and I vote was challenged. The Union filed timely objections. On July 25, i All dates are in 1975, unless otherwise shown The Union's charge in Case 5-CA-7287 was filed on May 12, as to which the complaint issued on July 9 and was amended on July 25 In Case 5-CA-7521, the charge was filed on September 10, amended on October 29, and the complaint issued on the latter date MULTI-MEDICAL CONVALESCENT 431 the Regional Director issued his formal report on the ob- jections. As to Objection 1, he found substantial and mate- rial issues of fact and ordered consolidation of the com- plaint and representation cases for the purpose of hearing. Certain of the election objections in issue are broadly coex- tensive with the complaint allegations of Section 8(a)(1). On September 16, 24, and 25 and October 21, 1975, and January 14, 1976, a hearing in this consolidated proceeding was held before me in Baltimore, Maryland. Posthearing briefs from the General Counsel and Respondent have been duly considered. Upon the entire record in the cases, and from my obser- vation of the demeanor of the witnesses, I make the follow- ing: FINDINGS OF FACT I. JURISDICTION AND LABOR ORGANIZATION Respondent is engaged in the operation of a proprietary nursing home in Towson, Maryland. During the year pre- ceding issuance of the initial complaint, Respondent had a direct inflow in interstate commerce of materials valued in excess of $50,000, and had gross revenues in excess of $100,000 . It is admitted, and I find, that Respondent is engaged in commerce and that District 1199E, National Union of Hospital and Health Care Employees, Retail, Wholesale and Department Store Union, AFL-CIO, here- in the Union is a labor organization , within the meaning of the Act. in the representation case . As already indicated, a directed election was held on May 14, following which the Union filed objections alleging interference with the election. Allegations appear in the testimony that threats or pre- dictions of layoff and firing were made to employees by particular supervisors and an agent of Respondent . Relat- ing to the precise question of whether an employer engaged in permissible predictions of adverse affects of unionism, as contrasted with coercive and unlawful threats, the Su- preme Court in Gissel was explicitly sensitive to "the eco- nomic dependence of the employees on their employer and the necessary tendency of the former, because of that rela- tionship, to pick up intended implications of the latter that might be more readily dismissed by a more disinterested ear." 3 It is well to note that here the unit employees are essentially unskilled menial help and, within my observa- tion, are relatively unsophisticated. Therefore, it is fair to say that these employees are more than normally apt "to pick up intended implications" and statements made to them without comprehending subtle distinctions. These are circumstances which are properly part of the context in which the issues arose. In a defensive vein, Respondent seeks to portray an im- age that it reacted benevolently to the Union's organiza- tional efforts and that it was receptive to recognition of the Union on the basis of a voluntary card check. I regard such arguments as a sham, particularly in light of Respondent's actual conduct and tactics hostile to union representation, and clearly intended to thwart the employees' support of the Union. II. THE UNFAIR LABOR PRACTICES A. Introductory Statement Respondent's facility involved herein commenced opera- tion on July 1, 1974. Alex and Rose Burkoff, husband and wife, are Respondent's "administrators"; i.e., holding the highest management positions. Rose Burkoff, as she testi- fied, "is" the administrator at another facility called the Mt. Sinai Nursing Home , at an undisclosed location.2 She gave testimony, in substance: The Union has had a collec- tive-bargaining agreement with Mt . Sinai since 1969; she and the Union's president had a "gentleman's agreement" reached several weeks before July 1, 1974, that he would "let her get off the ground floor" before he tried to union- ize Respondent, and Respondent would recognize the Union on the basis of a card count; and on February 26 a meeting took place at the office of Respondent's counsel for the purpose of conducting a card count, and no agree- ment was reached that the Union had established a card majority. It is evident that, on December 23, 1974, the Union filed a representation petition, clearly indicative that the Union was proceeding with its organizational cam- paign at Respondent. For reasons not shown, the Union withdrew its petition on January 20. On April 7, the Union again filed a certification petition. On April 21, the parties met at the Board office and entered into a stipulated record 2 The corporate or financial relationsbip , if any, between these two facili- ties has not been shown. B. Restraint and Coercion 1. Mildred Shiflett Shiflett is the supervisor of housekeeping, with about six employees in that department. During the morning on February 28, agents of the Union, David Simon, Carolyn Green and, one other, were on the premises of Respondent. After a telephone call to Burkoff, who was then away from the facility, certain supervisors made arrangement to per- mit the employees who so desired to meet with these agents in the employees' lounge.4 The employees were paged by loudspeaker. Employees Josephine Medley, Eunice Bran- don, and Vera Owens testified for General Counsel; em- ployee Rosalee Thompson and Supervisor Shiflett testified for Respondent. Each identified the others as being pres- ent. Directly concerned with the question of whether Shif- lett engaged in coercive conduct, my findings are in the affirmative. Shiflett spoke to some of the housekeepers in the lobby before they entered the employees' lounge to meet with the union agents. I credit Brandon's testimony , in substance as corroborated, that Shiflett said Burkoff did not want the 3 N L R B v Gissel Packing Co, Inc, 395 U S 575, 618 (1969) 4 Rose Burkoff had earlier granted Simon's request for leave to enter the home for solicitation purposes 5 On March 18, Union Agents Simon and Green came again to the nurs- ing home On this occasion, Burkoff allowed only Green , and not Simon, to enter the facility Employees were paged and were solicited by Green in the employees' lounge for a limited time No allegations are involved relating to this visit 432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees to sign cards, and if they signed the cards (i.e., selected the Union as representative) three of the house- keepers would have to be laid off, because Burkoff could not afford to pay union wages. Medley's version placed such a statement by Shiflett as occurring 2 or 3 days after February 28. Thompson testified that, in a conversation with housekeepers about a month after February 28, Shi- flett indicated that, if the Umon came in, some employees would be laid off because "we would have a (union) raise" and Burkoff could not "afford to pay those prices." Then Shiflett added that she did not know who would be laid off; it could even be herself.6 Medley also testified, as did Owens, that on February 28 Shiflett told the employees that, if they signed for the Union, they would be "fired." In the circumstances shown, with the Union permitted to soli- cit within the facility, such a direct threat of discharge for signing cards would seem implausible. I cannot conceive that Brandon, being present, would not have heard such a threat. This significant discrepancy among General Counsel's witnesses, present at the same event, is not else- where clarified. I am therefore constrained not to find that Shiflett stated such a threat of firing employees, and dis- miss this latter allegation in the complaint. Medley also testified that on February 28 Shiflett was in the employees' lounge, saw her sign an authorization card, took the card out of Medley's hand, and threw it in the trash can. I accept this aspect of her testimony, corroborat- ed by Owens who witnessed the occurrence. Shiflett testi- fied that before the meeting started one of the union agents in the lounge (in the presence of other employees) handed her a union card. She said, "here is what I think about your card," and "tore it up and threw it in the trash can." 7 Shiflett and Thompson testified that after the meeting em- ployees were sitting around the lounge. Thompson first asked Shiflett what to do with the cards and then took her own card and other blank cards lying on the table and threw them in the trash can. General Counsel has not al- leged and does not argue that an independent violation was committed. I deem this evidence pertinent to show the strong hostility of Supervisor Shiflett to the signing of union cards, which attitude she pointedly displayed to em- ployees on February 28. Elsewhere Shiflett testified, be- yond credence, that at all times she was unaware that any of the housekeepers had sympathies for the Union. The elicited denials of Shiflett and Thompson, to the extent inconsistent with the findings above, are not credited. In my opinion the violation is substantially the same in Shiflett's uttering the threat of layoffs-whether or not she specified that three of the six housekeepers, or 50 percent of them, would be so terminated; or whether or not it oc- curred on February 28, within a few weeks thereafter, or on more than one occasion. 6 Shiflett testified that sometime subsequent to February 28 she was asked by some employees whether they would be laid off or fired if the Union came in, and she replied she did not know-"Some of us will probably go and I may be one of them " In her direct examination, Burkoff responded with a denial to the question whether she told Shiflett at any time that, if the Union got in, 50 percent of the employees would be "fired " 7 At another point, Shiflett flatly stated she did not go into the lounge "while the union was there " And Thompson testified to corroborate such fact If an employer undertakes to inform employees of the effects unionization will have on his company, the pre- diction "must be carefully phrased on the basis of objective fact to convey an employer's belief as to demonstrably probable consequences beyond his control . . . . [Empha- sis supplied.]" 8 What Shiflett stated to the employees was not a prediction capable of objective proof of conse- quences beyond Respondent's control. The free collective- bargaining process does not permit the advance assump- tion that any concession is required by either side (Sec. 8(d) ). Respondent could not objectively forecast that deal- ing with the Union as a statutory bargaining representative would inevitably result (1) in higher employee wages and benefits, and (2) in its inability to meet such higher cost without having to reduce the current complement of em- ployees. In any case, it cannot be regarded that the lan- guage of Shiflett was so "carefully phrased" as to eliminate reasonable implications in the minds of the employees that the projected layoffs were within Respondent's discretion and control. The Supreme Court in Gissel found on the precise issue that "the Board could reasonably conclude that the intended and understood import of that message was not to predict that unionization would inevitably cause the plant to close but to threaten to throw employees out of work regardless of economic realities." I I arrive at the same conclusion here and find Shiflett's threat of a layoff seriously violative of Section 8(a)(1). 2. William C. Connor Connor is employed as a public school teacher and as a part-time security guard under the auspices of the Pinker- ton Company. From October 1974 to May 1975, he was assigned as a guard at Respondent's premises. He worked along with Rose Burkoff almost on a daily basis and had occasion to discuss with her the union campaign. On April 21, after Burkoff returned from the Board hearing in the representation case, she called Connor into her office. She mentioned that Wilma Peay and Katie Woods were at that meeting and she was particularly sur- prised to see Peay. She wanted him to "feel out," to see if he "could discover the feelings of the employees as to their pro or con union," since he had a good rapport with them." 10 And she asked him to report back to her. She gave Connor copies of the Union's financial statements, which she explained to him. Among other things, she told in if the Union won the election she could not afford to pay union wages, and if she had to she would run the facili- ty with LPN's (licensed practical nurses) and RN 's (regis- tered nurses). Thereafter, on several occasions with differ- ent employees, Connor had conversations to find out what their sympathies were regarding the Union. Mainly he spoke to about 10 employees on the 3 to 11 p.m. shift. He discussed with them the financial statements of the Union's local and international." He tried to convince them that 8 N L R B v Gissel Packing Co, Inc, 395 U.S 575, 618 (1969) 9 Id at 619 And see, e g , N L R B v Jimmy-Richard Co, Inc, 527 F 2d 803 (C A D C, 1975) 10 He testified that in fact he had a good relationship with the employees 11 Burkoff testified that Respondent distributed copies of the Union's fi- nancial statements to each supervisor and placed a "batch" of them on the MULTI-MEDICAL CONVALESCENT 433 the Union was in financial difficulties and the parent was obviously helping the local. The discussion was "more or less about who was feeling prounion or antiunion." He said Burkoff had told him that if the employees voted for the Union she would have to run the staff with LPN's and RN's. He expressed his own opinion while he tried to im- press upon the employees that it could probably mean their jobs, that Burkoff was losing money, could not afford union wages, and would have to lay off some of the em- ployees. They should remember that, although there might be benefits deriving from the Union, Burkoff would still have the "final say-so as far as hiring and firing." After April 21 he had discussions with Burkoff from time to time, and he is sure that he verbally reported to her the names of employees and their feelings towards the Union. On April 29, he wrote a note to Burkoff and left it on her desk. As will be specifically shown infra, he commented on the gen- eral attitudes of the employees, and specifically concerning the union activities of Peay and Woods. After Peay was discharged on April 30, Burkoff wanted him to stop feeling the employees out, to "drop the whole thing," because it was getting too involved.12 The foregoing, in essence, re- flects the account given by Connor. Burkoff's denials as to portions of these findings 13 are not credited. My distinct opinion is that her testimony in numerous instances was shifting, evasive, dissembling, and generally untrustworthy. Initially, I find that Respondent authorized and utilized the services of the security guard, Connor, to operate co- vertly among the employees, exploiting their confidence and trust, in order to ascertain and report to Respondent, inter alia, the identities of those employees who favored and those who opposed the Union. This is clearly within the concept of employer espionage early condemned by the Board and the courts as a fundamental intrusion into the protected activities of employees." Accordingly, it is held, within the framework of the complaint, that such conduct by Respondent violated Section 8(a)(1) of the Act. There are subsidiary questions whether certain state- ments of Connor in the course of his "feeling out" the employees are imputable to Respondent as unlawfully coercive. In my opinion, the evidence does not permit the inference that the employees were reasonably led to believe that Connor, in what he told them, was an agent, supervi- sor, or spokesman for Respondent, albeit he was an au- thorized agent in regard to his undercover assignment.15 desk where Connor normally sat At the same time , she denied that she ever told Connor to distribute these statements , and denied she had any informa- tion that Connor was involved in finding out the employees ' sentiments concerning the Union She answered that she does not care one way or the other whether the Union comes into Respondent 's facility i2 Burkoff testified she merely told Connor to stop interfering with the employees 1 Such as, that she asked him to feel out the employees and to report back, that she provided him with the financial statements of the Union, or that he gave her any oral reports Much of this testimony was elicited by leading questions i4 E g, Consolidated Edison Co v N L R B 305 U S 197, 230 ( 1938), Harvey Aluminum (Incorporated) and General Engineering, Inc, et at, 139 NLRB 151, 200 ( 1962), and cases cited therein And see Rust Sales Compa- ny, 157 NLRB 1681 (1966), concerning the use of a detective agency to spy and report on employees' union activities is Cf, Kolpm Bros Co , inc, 149 NLRB 1378, enfd 379 F 2d 488 (C A 7, 1967), and Atlas Engine Works, Inc, 163 NLRB 486 (1967), where the em- Therefore, the specific complaint allegations that he en- gaged in coercive interrogation of employees and that he warned employees of termination because of their union sympathies-cannot stand.16 3. Al Rhine He hired and directly supervised Jacqueline Brooks, a dietary aide. Brooks was active in soliciting union cards. On April 22, Rhine asked Brooks if she had attended the Board (representation) hearing the previous day. She re- plied in the negative. He indicated that Burkoff had asked him to find out if any of his girls were at the hearing. He told her Burkoff said if the Union got in he would have to let go 50 percent of his employees because she could not afford to pay union wages.' In the context of the established union animus and con- temporaneous unfair labor practices, I find that Rhine en- gaged in coercive interrogation of Brooks.18 In addition, Section 8(a)(1) was violated in Rhine's threat that employ- ees would be laid off if the Union were selected as their representative. 4. Rose Burkoff She spoke to assembled employees at a preelection meet- ing on May 5.19 She testified that the purpose of the meet- ing was to clarify "rumors running rampant" through the facility. These rumors were brought to her attention through the various supervisors, and not by any employees. For her part, Marian Causey, an assistant to Burkoff and the "administrator and head of recreational therapy," testi- fied that Burkoff "planned the meeting" at the request of certain employees who had approached Causey. The ru- mors described by Burkoff were, e.g., that there were going to be wholesale firings; that she was going to run the place with LPN's and RN's; and that if they signed cards they would be terminated. As already shown, certain statements of this nature had earlier been made to the employees by supervisors and by the guard, Connor. General Counsel's witnesses gave testimony concerning ployees enlisted by the employer to engage in antiunion activities used threats and coercive arguments within the direct authority given by the employer 1 Moreover, there is no evidence of actual conversations and therefore no basis for applying the usual tests for determining whether the speech used constituted coercive interrogation And his statements concerning the possi- bility of layoffs and loss of fobs were characterized as reflecting his personal opinion An area of doubt is presented whether Respondent should be held accountable for his statement to employees that Burkoff told him, if the Union came in, the facility would be run by LPN's and RN's There is testimony elsewhere regarding such a statement from Respondent with sub- stantial ambiguity as to the meaning intended and interpreted A witness for General Counsel, employee Jacqueline Brooks, testified that Burkoff indi- cated at a meeting with employees that, if the employees engaged in a strike, she would have the LPN's and RN's run the building It is plausible and probable that, in essence, this is what Burkoff sought to convey to Connor. In the particular circumstances , I find no independent violation in this state- ment to employees made by Connor Cf America Door Company, Inc, 181 NLRB 37 (1970) 17 Rhine was not called by Respondent 18 Blue Flash Express, Inc, 109 NLRB 591 (1954) 19 Minor variations in the date were given by certain witnesses It is undis- puted that only one meeting was held about this time preceding the sched- uled election on May 14 434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the meeting, in relevant substance, as follows: Denis Erwin: Burkoff said, if the Union came in, there would have to be paid increases, and she would have to lay off employees because she could not afford to pay the increases. Josephine Medley: Burkoff stated she could not afford to pay union wages and, if the Union came in, she would have to lay off some employees. She also said that, when she got some more money, she would divide it and give her help more money. Eunice Brandon: Burkoff said she could not afford to pay union wages. If she got more patients, she would pay even more than the Union would. Jacqueline Brooks: Burkoff asked the employees to vote no in the election because she could not afford to pay union wages. If the Union did get in, the employees would engage in a strike, and she would then have the LPN's and RN's run the building. If the Union did get in, she would have to lay off 50 percent of the people. Respondent's witnesses testified concerning the meeting: Virginia Miller: Answering a question, Burkoff said there would be no blanket firing but "there may, however, be layoffs because of lack of funds." If she were forced to raise wages, there were only so many dollars to go around and "only so many employees could be kept." No mention was made of any number or percentage of layoffs. She said that, since it was a new facility, "it was running in the red which was not at all unusual." If the employees stuck by her, when the "census" went up, their pay would also go up. The "census" referred to the number of patients in the facility then about 30 as compared with the capacity of 120. The question was asked whether all the unlicensed people would be fired and the facility run by licensed peo- ple. Burkoff answered that this was impossible to do be- cause licensed personnel required more pay than the unit employees. Edward Rosenquist: Burkoff said there would not be any blanket firing for signing cards. If the Union came in and she had to increase the pay with the same number of staff, she would have to lay off some employees "to accommodate the money she had." She would have to increase the wages if the Union came in. "Theoretically she stated" that if she had to increase the pay "it would be logical that she would have to lay off some people." If the employees would "give her a chance to prove herself, then she could try to do her best to accommodate the standards she could set up." She showed them the Union's financial statements and said that the Union's need for members to resolve a deficit problem was the only reason the Union wanted to come in. Supervisor Shiflett: Burkoff said, if the Union came in and asked for higher wages, "she could not afford to pay higher wages so :,he would have to lay some of the employees off." If everybody would stick with her and give her a chance, she would increase the pay when she got more patients. Shiflett herself was repeatedly told about this and she passed it on to her housekeepers. Bur- koff said nothing about running the facility with LPN's and RN's. Supervisor Causey: Burkoff said, in the event the Union came in, "there would have to be layoffs if we did not improve our patient census." If the Union did get in and made such demands for salary "it was true there would be layoffs." Answering whether there would be mass termi- nations if the Union was selected, Burkoff indicated that the employees who remained would certainly have their salaries increased as the patient load increased. Rose Bur- koff: Asked about mass layoffs, she said-if she were placed "in a more difficult position financially than she was already in," she would "have no choice but to lay off some people" because the census then was 35 patients out of 120 beds. She did not tell the employees to "stick with" her but said that, if they gave her a chance, as the census improves she would give them increases. She did not say she would "fire" all nonlicensed personnel and run the fa- cility with RN's and LPN's. I find, in substance, Burkoff told the employees, if they designated the Union in the forthcoming election, that she would have to grant pay increases demanded by the Union, that she could not afford to pay such increases, and that she would have no alternative but to lay off some employees. This essentially reflects the testimony of Erwin and Medley, as well as Supervisors Shiflett and Causey. I regard Burkoff's version as strained and equivocal. Only Brooks testified that Burkoff specified she would have to lay off 50 percent of the unit employees. It is not my find- ing that such a statement was made by Burkoff at this meeting. Even assuming that it had been made, the result I reach would not be affected. However, it is to be noted that statements describing a number or percentage of layoffs were earlier made to the employees by Supervisors Shiflett and Rhine, and it may reasonably be assumed they ema- nated from internal management sources. In the preelec- tion meeting on May 5, Burkoff also emphasized that the employees would receive raises in pay as and if the census of patients increased in the facility 20 General Counsel has not alleged the promises of wage increases or benefits as violations, and none is found on the state of this record. Nevertheless, it is pertinent to consider from the vantage point of the employees that Respondent was holding out prospects of raises based on improvement in the census while simultaneously asserting it could not afford to pay union wages, and, if the Union came in, it would inevitably result in layoffs. Burkoff made no comment that, if the census improved, Respondent would be able to afford union-negotiated raises. It is not conceivable that Burkoff's statements on their face were objectively persuasive to the employees that layoffs, upon the advent of the Union, would result as an economic necessity. Indeed, the likely impact upon them was that the "carrot and stick" ap- proach in Respondent's efforts to influence them away from the Union. Viewing all the testimony as to the import of Burkoff's statements, it can scarcely be deemed that these were "carefully phrased" predictions based on objec- tive fact conveying demonstrably probable consequences beyond Respondent's control 21 Rather, I find they were thinly disguised threats. Accordingly, upon the reasoning and authority discussed above concerning similar state- ments made by Supervisor Shiflett, it is concluded that Burkoff's statements depicting the eventuality of layoffs violated Section 8(a)(1) as alleged. 20 Observation is made in the general context that, at the time of the hearing on September 24, the unit complement had increased to 62 employ- ees from the 34 employees eligible at the election on May 14, with the implication that at this later date a substantial increase in the "census" must have been achieved 21 G,ssel, supra, 395 U S. at 618. MULTI-MEDICAL CONVALESCENT 435 C. Discharge of Wilma Peay Peay was employed from July 22, 1974, until April 30, 1975, as a "nurse's assistant," earning $2.25, then raised to $2.35 an hour, and was admittedly regarded by Burkoff as an excellent worker. She had signed cards, attended union meetings, appeared on behalf of the Union at the represen- tation hearing on April 21, and agreed to be the union steward "if the Union was voted in." Relating to her discharge, the testimony in material sub- stance, of the security guard, Connor, is given credence. The incident relied on by Respondent stems directly from Connors' unlawful conduct of engaging in espionage as to the employees' union activities. Conflicting testimony of Burkoff and Causey is rejected. On April 21, Connor was summoned and he reported to the office of Burkoff after she returned from the Board heanng.22 She said she was surprised that Peay, of all peo- ple, was at the hearing. Her attorney had informed her that Peay was a member of the Union and was salaried by the Union to act as an organizer while working for the facility. Peay would not care about losing her job because she was being paid by the Union.23 Following April 21, and his espionage assignment ar- ranged that day, Connor undertook discussions with em- ployees, as earlier noted. In the evening on April 29 he prepared a report to Burkoff and left it in a sealed envelope on her desk, viz: is fired or not. Others are really beginning to "sweat" their jobs. Some said, "Peay has a husband. What am I going to do. I have to support myself." Sincerely, Bill On April 30, after he returned home from his teaching po- sition about 3:30 p.m., he received a call from Burkoff to come immediately regarding his note. Soon thereafter, in Burkoff's office, she told him she was going to have to terminate Peay because of the statement "calling her a crook." He protested that it was a "hearsay conversation," he didn't intend it to be used in such a way, and he thought it was wrong to terminate her for this reason. Burkoff then said that when he submitted his application for summer employment and it was accepted by Respondent, "you be- came a member of the staff and you have to back me up. Administrators have to stick together." 24 Burkoff stated she was going ahead with her plans to fire Peay, and would call the staff together over the public address system "to set an example." She said she "would show those coconut heads who was boss." The Burkoffs, Causey, Peay's super- visor (Igou), and Connor convened in the hallway adjacent to the multipurpose room. The staff was already seated 15- 20 feet away in the multipurpose room with the door open. Peay, having been summoned, entered and was questioned by Burkoff. Burkoff said she had a report Peay "had called her a crook," she was "not a crook," and she proceeded to read to Peay the portion from Connor's report. Connor April 29, 1975 testified Peay "looked like she didn't know what was hap- Dear Mrs. Burkoff, In my opinion Mrs. Peay, who gives the outward appearance of being a professional lady, is nothing more than a rabble-rouser. She is saying things like "I know about Rose Burkoff. I've heard she is crooked." "When I go the union will be here." etc. Katie Woods is the typical black who needs to be led. She has found a leader in Peay. Woods says she is going to be fired anyway so the hell with it. Many people, I feel, are afraid to vote no because of the nasty consequences that might follow. Conse- quences that 1199E is noted for. They feel the names of those who vote against will be known. The morale of the staff is sinking. Peay walks around letting people know that she doesn't care if she 22 In passing, I note Burkoff's changing testimony, i e , that she had abso- lutely no conversations with Connor concerning the Union, then that she did not "specifically" have such conversations, then that it took place only when he brought it up, and, finally, what they discussed was that "they [the Union] were trying to come in and over and over and over again, they come in and they come in " 23 Peay testified that, on April 21, Connor informed her of his conversa- tion with Burkoff Connor related that Burkoff insisted Peay was a paid worker for the Union and wanted her out of there regardless of what they could get on her He indicated Burkoff also said "she would dust have to show those coconut heads who was boss " Connor testified that, as he re- called, the latter statement was made by him on April 30, as will be de- scribed infra Peay's testimony is taken for the truth of what Connor told Peay, but not for the truth of what Burkoff actually told Connor The testi- mony is generally relevant to show such background in consideration of the circumstances attending Burkoff's confrontation with Peay on April 30 pening" and, responded to Burkoff-"if I recall correctly, Mrs. Peay said I did or something to that effect." Burkoff then told Peay she had no other recourse than to ask her to get her things and leave the premises because she would not tolerate "anyone saying this" about her. Connor testified that, in the late evening on April 29, he had a discussion with employees Peay, Erica Penkney, and Kathy McCullough in the employees' lounge. He was going over with them the "financial statements, public re- cords, and federal statements" of the local and parent of the Union. He had also voiced his personal opinion con- cerning Burkoff's "losing money" and the possibility of layoffs because of inability to pay union wages. Peay re- marked, "don't tell me about that Rose Burkoff, I have heard she is a crook." Peay's version varied, but not materially, from that of Connor. On April 29, in the employees' lounge, Connor had been talking to Peay about the Union. He went to his desk in that area and then called Peay to the desk. He showed her the Union's financial statements, arguing that the Union just wanted the financial help of the employees. Peay commented that the statements were not necessarily true. Connor then indicated, "Well here are the statements from Multi-Medical." Peay countered, "Well, they could be crooked too." And he said, "No, the Federal Govern- ment had printed these statements and they were true." 25 24 Then assigned as a part-time Pinkerton guard, Connor was approached by Burkoff and Causey in April to take employment during the coming summer months as an assistant to Causey 25 I do not find that Peay adverted to the Company's own financial state- ments As I construe the testimony, she was inarticulately referring first to Continued 436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD McCullough and Pinkney were sitting in the lounge about 12 feet away. From the rambling manner of Connor's testi- mony on this issue, I have doubt that Peay used the exact language he ascribed to her. However, my finding is that she did remark to the effect that she had "heard" Rose Burkoff is a "crook" or "crooked" in the context of the discussion concerning the financial statements. Continuing, Peay testified that on April 30, about 4:30 p.m., she was summoned and appeared in the sitting area across from the multipurpose room. Present were Mr. and Mrs. Burkoff, Connor, and Causey. She observed that some employees were in the multipurpose room . Rose Bur- koff confronted her-"I understand you made a statement that I know all about Rose Burkoff and she is a crook." Peay replied that she did not recall making such a state- ment. Burkoff then said there was no need for her to "plead temporary insanity," and ordered her to punch out the timeclock 26 Conclusions My decision on the question of Peay's discharge is based, inter aka, upon the following considerations in sum- mary: (1) Peay's unguarded leadership activities on behalf of the Union. (2) Burkoff's hostile reaction upon finding Peay attended the Board representation hearing on April 21, and her expressed belief that Peay was a paid union organizer. (3) Burkoff's use of Connor as an espionage agent, and his invasion and violation of Peay's confidence in obtaining and reporting to Burkoff on Peay's union con- duct, including the remark in question critical of Burkoff. (4) The fact that on April 29 Connor was engaged with Peay in a two-party conversation, purportedly overheard from a distance by two employees who were not called to testify. (5) Connor's written report to Burkoff on April 29, pointing to Peay as a "rabble-rouser" and as a dedicated proponent of the Union, while quoting Peay as stating she had heard Burkoff is a crook. (6) The essential nature of Peay's remark regarding Burkoff . It was made in limited reference to the reliability of the Union's financial state- ments given to Connor by Burkoff for campaign propagan- da. It appears as an offhand comment by an obviously unsophisticated domestic-type worker. It was not articulat- ed for general circulation and, in my opinion, was not ut- tered with intended or understood malice against Burkoff personally. (7) Burkoff decided summarily to discharge Peay before confronting her-Connor's protests notwith- the union statements made available by Multi-Medical and then to the "Federal Government" reporting and disclosure forms filed by the Union 26 At the conclusion of Peay's direct examination , General Counsel fur- nished Respondent, on request, with Peay's prehearing affidavit of eight pages There was virtually no cross-examination of Peay In addition, it is noted that Mr Burkoff and Supervisor Igou did not testify, nor did Respon- dent call employees Pinkney or McCullough (Indeed, Pinkney refused to honor General Counsel's subpena ) Burkoff and Causey testified that, be- fore calling Peay, they questioned Pinkney , and that, at the discharge inter- view, when Peay said she did not remember making the remark read to her from Connor's report, Connor and Pinkney, in contradiction, asserted they heard her make the remark Connor did not so testify and was not cross- examined on the point Employee Denise Erwin , who overheard the conver- sation from the multi-purpose room, did not so testify standing that he did not intend such a result and that it was wrong. And Connor was told he had to back her up, "ad- ministrators have to stick together." Such a remark as attributed to Peay is certainly not to be condoned. Nevertheless, I do not accept as earnest Burkoff's protestations of alarm concerning the damage to her reputation . It was Burkoff herself who took pains broadly to publicize Peay's derogatory comment. Nor do I find substance in Respondent's arguments that failure to discipline Peay would have adverse effects upon the pa- tients and the operation of the "fledgling" facility. In the experience of industrial conflict , it is well known that em- ployees among themselves make strong remarks concern- ing an employer in the heat of a union campaign. At the time she made the remark, Peay was involved in a discus- sion concerning the Union's drive with Connor, at his initi- ative, while other employees were present. I find she was therefore engaged in a protected activity. The further ques- tion, however, is whether her offense, in the remark affect- ing Burkoff, was of such gravity as to forfeit the Act's pro- tection.27 In all the circumstances present, I hold that it was not. Burkoff's desire to get rid of Peay because of her orga- nizational activities is inferrably quite plain. With conspic- uous alacrity, she seized upon this incident as a pretext to accomplish such purpose. It is my finding that, in discharg- ing Peay, Burkoff was motivated in virtual entirety by her determination to remove Peay as an outstanding employee activist and paid worker for the Union, and to "set an example" in this respect of discouraging employees from their support of the Union in the impending election. Ac- cordingly, the violation of Section 8(a)(3) is sustained. It is also alleged in the complaint that Respondent vio- lated Section 8(a)(1) "in assembling and requiring employ- ees to witness the discharge of a known Union adherent." Connor testified that, in her office on April 30, before con- fronting Peay, Burkoff indicated she would call the staff together "to set an example ." Some employees were pre- sent in the multi-purpose room and heard the discharge interview take place outside their door. Thereafter, Burkoff spoke briefly to the assembled employees in the multipur- pose room. Employee Erwin testified Burkoff told them she had dust fired Peay and wanted them to be "a witness or something." 28 In discharging Peay and thereby discour- aging union membership, Section 8(a)(1) was derivatively violated. Nothing was said by Burkoff at the discharge in- terview or directly to the employees in the multipurpose room which can be regarded as independently coercive, apart from the discharge itself. I have not cited, nor am I aware of, any case in which Section 8(a)(1) is held to be violated by an employer calling or having employees wit- ness a discharge which is found to be discriminatory. While it may give emphasis to an unlawful act of discharge, I hold that it creates no additional violation. This allegation is therefore dismissed. 27 Cf Keystone Ship Engineering Company, 113 NLRB 596 (1955), cited by Respondent, where the Board held the misconduct of an employee was serious enough to foreclose any speculation that it was used as a pretext to discharge him because of his union activities 28 As the evidence actually indicates , the employees were not assembled in order to witness the discharge in their physical presence MULTI-MEDICAL CONVALESCENT D. Discharge of Vera Owens Owens was employed since October 15, 1974, as a house- keeper assigned to the second floor of the west wing, encompassing about 15 bedrooms, as well as bathrooms, halls, lobby, solarium, and elevator, as her specific respon- sibility. She performed a wide variety of cleaning and mis- cellaneous duties under the standing instructions she had been given when she began employment. One of her major and most time-consuming jobs was to scrub the floors in the entire wing every day. All six housekeepers in the de- partment worked on 8-4:30 p.m. shift. Her supervisor, Yorkevitch, was terminated about 1 month before she, Ow- ens, was discharged on July 12. During this period, Mil- dred Shiflett was his assistant but did not directly exercise any authority over Owens. Shiflett became the housekeep- ing supervisor upon Yorkevitch's departure, as appears, about early June 29 Owens was particularly active for the Union. In October 1974 and January 1975 she accepted authorization cards from union agents being distributed at Respondent's drive- way entrance, and she mailed her signed cards to the Union. She also signed cards during the Union' s meetings within the premises on February 28 and March 18, supra. Shortly following this meeting in February, near the en- trance to the facility as she was reporting to work, Union Agent Simon openly handed her about 15 blank cards. As she testified, this was observed by the security guard stand- ing within a glass door 20-25 feet away. ° During the course of the same day, she distributed 8 or 9 of these cards to unit employees in the employees' lounge. She informed employees on each of three occasions union meetings were to be held, and in various conversations with employees she urged them to support the Union. For several days prior to the election, she wore a union button (1 inch in diameter) on the lower right side of her uniform. On Saturday, July 12, Owens received a telephone call at home from Supervisor Shiflett. Owens testified: Shiflett told her-"your work doesn't meet my and Miss Burkoff's approval, and she said to let you go." Owens said she had done her work and repeatedly requested the reason for dis- missal, but Shiflett would not give her any specific reason. Shiflett also said, "You're a troublemaker and I'm going to get rid of you." At the end of the conversation Owens re- marked, "Well, you won't hear the last of this." On Mon- day Owens called to speak to Burkoff at the nursing home and was told Burkoff was not in. As to the telephone call on July 12 Shiflett testified: She told Owens she was termi- nated "because she didn't do the work I asked her to do." She said nothing else to Owens at that time. In later testi- mony, Shiflett added that they talked about what Owens had been told to do-cleaning up food stains and mopping the floors. Owens protested she had mopped the floors, "but she hadn't." Shiflett testified that, on July 10, she had assigned Ow- ens certain work to be performed, described below. On 29 Unrefuted testimony of Owens 30 The guard was other than Connor, who came on duty for the afternoon shift. It is not alleged, and I do not find, that the unnamed guard was an agent of Respondent or that he actually reported such information to Re- spondent. 437 July 11, Shiflett's day off, she was not present to observe Owens' work. On July 12, Owens' day off, when Shiflett returned and found the specified assignments to Owens had not been done she decided to terminate her. Then she called Owens at home. She alone made the determination to discharge Owens. Only these two witnesses, in direct conflict, testified on the issue. In substantial respects, I find Shiflett's testimony changing, inconsistent, implausible, and fabricated. Owens is credited. Incidents on July 10 Shiflett testified that, early in the morning on July 10, she asked Owens to clean the elevator. Owens said she was not going to clean the "damned thing." She later observed it had been cleaned but did not know (or try to find out) if it had been done by Owens. On cross-examination, Shiflett indicated she did "not really" consider the elevator inci- dent in her decision to dismiss Owens. Owens testified she had only her standing instructions, and was not given by Shiflett this or any other specific duty to perform on July 10. Owens indicated such an incident did occur at least 1 month before her discharge; that she did clean the elevator at that time; and that she did not then, or ever, tell Shiflett she would not perform any assigned task. Shiflett stated that, about lunchtime, she approached Owens to clean some water from the floor of Room 202. Owens said, "why didn't you clean it up, you was up- stairs?" When Owens later said she could not find the wa- ter, Shiflett showed her where it was and it was then cleaned. In her later testimony, Shiflett admitted that she did not rely on this incident in discharging Owens.31 This testimony was specifically denied by Owens. She testified such an incident occurred 3 or 4 weeks before July 10. Shiflett had instructed her to clean a water spill in Room 202. It was just a little spot and she wiped it up with a paper towel. Shiflett related that she instructed Owens to clean the entire floor in the wing, including some of the rooms.32 Specifically, Shiflett told Owens about food which a pa- tient had spilled on the floor near her bed. Also there was a "wax buildup" in the same room and around the doors and beds of each room. The only way to clean up the wax was to "strip it,"-a task she had never previously asked Owens to do. When Shiflett returned on July 12, the food and wax were still there. She took a buffer and cleaned the wax up herself. Later she testified that, after Owens' termi- nation, she sent four girls to scrape the food off the floor and remove the wax.33 As already noted, Owens denied any such instructions on July 10. Josephine Medley is 31 Respondent elicited numerous alleged faults in the work performance of Owens on which it expressly relied in the decision to discharge Owens At the hearing, Respondent's counsel was repeatedly cautioned not to adduce incidents which were not relied on and therefore irrelevant In its brief, Respondent persists in its reliance on the elevator and water incidents, as well as the numerous generalized criticisms of Owens' preceding July 10, discussed infra 32 Undisputedly, it was Owens' normal daily duty to clean the floors 33 None of these employees was called to testify It also appears that another housekeeper was normally assigned to Owens' area of work on her day off, e g, July 12 438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Shiflett's assistant and was the supervisor in charge of housekeeping when Shiflett was absent. On July 11, Shiflett's day off, Medley had occasion to observe Owens and saw nothing wrong in the performance of her work. Regarding Owens' duties, Shiflett did not discuss with Medley, before or after July 11, the food spill, wax buildup, or any special assignments given to Owens, and Medley had never complained to Shiflett about Owens' work. Ow- ens testified she had never been criticized or warned con- cerning her work performance. Incidents before July 10 Shiflett testified she told Owens several times, 3 or 4 weeks before July 12, her work was slow, she was not mop- ping the floors, or cleaning the bathrooms, and "just wasn't cleaning." About 2 months before July 12, she told Owens several times the work has got to be done. "Sometimes she did the work, sometimes she didn't." 34 She spoke to Owens a "couple of times" about going to sleep at the monthly "in service" meetings, in which the housekeepers were instruct- ed how to mix the chemicals for cleaning purposes. Owens slept through most of these. In April and May, after each such meeting, she told Owens to pay attention because it was important.35 On cross-examination, Shiflett testified she "didn't think too much" about the sleeping incidents as basis for discharge. She had discharged Owens because she could not follow orders, specifically the food spill, the wax buildup, and "keeping the floor clean." Owens testified that she had dozed once, and that Shiflett never mentioned anything to her about sleeping during the "in service" meetings.36 Conclusions Shiflett was intent to establish, as she initially testified, (a) that she independently made the decision to discharge Owens, and (b) that she had utterly no knowledge of the union activities of Owens, or of any of the housekeepers. On both points, I find the record supports the contrary. It was extricated from Shiflett that, during the week before Owens' discharge, she discussed with Rose Burkoff the fail- ure of Owens to follow her instructions. As to these addi- tional incidents. Shiflett said "it was the same thing"-mopping floors and cleaning bathrooms, elevators and beds. Nevertheless, Shiflett testified that, while she came to Burkoff with complaints about Owens, she indi- cated she did not want to get rid of Owens. However, Bur- koff said, "if she's not doing her work, you've got to have somebody that will do it . . . so do what you have to do, replace her.,, 37 Shiflett testified that it was not customary for her to consult higher management before she made a decision to discharge; however, she had in fact done so 14 These purported incidents took place before Shiflett became the house- kee 3ping supervisor, supra /bid 36 During the course of her testimony, Shiflett volunteered that when she first went to work Owens was a good worker 37 Burkoff was not called on this issue with everyone she terminated; but in this instance, on July 12, she did not. Considering Shiflett's reluctance to admit that Burkoff played any part in the decision, I regard this latter testimo- ny as carrying significant implications. In view of the back- ground of this record, it is highly probable that Burkoff was more emphatic in her instruction to Shiflett, and that the determination to discharge Owens was virtually settled during such discussion. I find that Burkoff and Shiflett then knew or believed Owens was strongly supporting the Union. When the union agents visited the premises on Feb- ruary 28, Shiflett was in and out of the lounge while em- ployees were being solicited to sign cards; and she graphi- cally demonstrated to the employees her concern and animus in opposition to the card signing. Shiflett conced- edly was aware that in general conversations she had with the housekeepers and at the May 5 preelection meeting with Burkoff Owens had asked pointed questions regarding the Union. Connor had been unlawfully engaged in ascer- taining the identity of employees favoring the Union, and he did orally report back to Burkoff certain names, unspec- ified. Burkoff testified that, at the preelection meeting, Ow- ens "started to say something about the way she was plan- ning to vote and I stopped her and I said I was not interested." Although this testimony is partially self-serv- ing, it is indicative to an extent that Burkoff would likely infer Owens' union activism. Additionally, in their tele- phone conversation on July 12, Shiflett told Owens she is a "troublemaker" and is going to "get rid of her."38 Respondent's persistent reliance upon every conceivable deficiency it could dredge up concerning Owens' work per- formance, many if not all of which were old, plainly con- cocted, or admittedly not considered by Shiflett, signifies its pretextuous purpose in attempting to justify Owens' dis- charge. Shiflett had been effectively instructed by Burkoff to replace Owens. It is found that Shiflett's complaints re- garding Owens' refusal and failure to perform assigned work on July 10 and 11 were contrived. The issue of union representation was then apparently still pending after the inconclusive election. It is found that the true reason for the summary termination delivered by telephone on July 12 was Respondent's desire to "get rid of" Owens as a staunch union proponent and to discourage adherence to the Union by other employees. Bearing in mind Respondent's violations of Section 8(a)(1) and (3), earlier described'39 I find and conclude that it was discriminatorily motivated in discharging Owens, thereby further violating Section 8(a)(3). F. Remedial Bargaining Order 1. Authorization card majority On April 21, the parties entered into a stipulation of the record in the representation case in which it was agreed, inter alia, that as of such date the Union orally requested 78 Not specifically denied by Shiflett 39 See, e g , Ohmue Manufacturing Company, Subsidiary of North America Phillips Corporation, 220 NLRB 1206 (1976). MULTI-MEDICAL CONVALESCENT recognition and Respondent orally refused such request 40 The stipulation incorporates an eligibility list, for purposes of the election held on May 14, with the names of 39 unit employees 41 employed during the biweekly payroll period ending April 19. The list represents the pertinent unit com- plement to determine the question of the Union's card ma- jority. Signed authorization cards of 21 employees were ad- mitted in evidence. Included is the card of Linda Shiflett, who was subpenaed by General Counsel and declined to appear. I have compared her signature on the card signed on April 23 and on her W-4 form and find they are clearly identical. The card of Sarah T. Wheeler, signed on April 2, and her W-4 form were offered and placed in the rejected exhibit file subject to restudy. General Counsel represented that, to verify Wheeler's signature, reliance had been placed on the anticipated testimony of Union Agent Green, based on prehearing investigation. Green was hos- pitalized and unavailable to testify until October 21. Green testified she gave the card to Wheeler and received the signed card in the mail; she did not see Wheeler sign. The parties were subject to a ruling that only evidence relating to Green's testimony would be adduced on October 21. General Counsel represents that therefore no attempt was made to subpena Wheeler. I have reexamined these partic- ular circumstances and admit into evidence Wheeler's au- thorization card and W-4 form. In doing so, I have also considered Respondent's basis for objections to certain of the cards, which I find, infra, devoid of merit. The signa- tures on the card and W-4 form are unmistakably the same. With Wheeler's card included, there are 22 signed authorization cards submitted by the Union. Two of the authorization cards, by Linda Shiflett and Louis H. Costin, are dated April 23; the remainder were signed on dates from October 31, 1974, to April 8, inclu- sive. Accordingly, I find that, as of April 19, the Union had 20 valid authorization cards of 39 employees in the unit, constituting a majority. Adding the cards of Shiflett and Coston, the Union's card majority as of April 23 consisted of 22 employees of the 39 in the unit. Respondent objects to the card of Nellie Clark on the ground of her testimony that Vera Owens, who solicited her signature, told her it was "to try to get an election." This contention is rejected; no representation was made that the cards were sought solely for the purpose of getting an election 42 Respondent asserts that the cards of Shirley Fleming and Ruth Ford, both dated October 31, 1974, and that of Theresa Cross, dated November 24, 1974, are inval- id because they were not signed as part of the "current campaign." It argues that the Union began its campaign anew on February 28, and therefore the earlier signed cards are stale. As plainly apparent in this record, the Union was conducting a single continuous campaign com- mencing prior to October 31, 1974. As of February 26, 90 The pending petition filed on April 7 also constituted a continuing recognition claim It is unnecessary to determine whether there existed a continuing claim by virtue of the petition previously filed and later with- drawn , and the direct dealings between the parties 41 By agreement at the hearing, the name of Clair DeShield was added to the list 42 N L R B v Gissel Packing Co, Inc, 395 U S 575, 584 (1969), Cumber- land Shoe Corporation, 144 NLRB 1268 (1963), Levi Strauss & Co, 172 NLRB 732 (1968) 439 when the Union and Respondent representatives met for the purpose of a card count, it is Respondent's own posi- tion that the Union was short of a majority by one card 43 and that the Union was invited to seek additional cards. It is also evident that the Union, on and after February 28, obtained from employees duplicate cards, and the more recent of these cards were introduced. I find the cards of Fleming, Ford, and Cross are sufficiently current within the campaign and may properly be counted toward the majority44 2. Gissel and Trading Port As found, Respondent violated Section 8(a)(1) by dele- gating a security guard to spy and report on the employees' union activities , by engaging in coercive interrogation of employees and by repeatedly threatening the employees with layoff if they selected the Union. And it violated Sec- tion 8(a)(3) by discharging Peay and Owens because of their union activities. Peay's discharge and the various in- dependent acts of coercion upon the employees had a clear tendency to, and did, undermine the Union's majority strength and interfered with the election held on May 14. Respondent's unfair labor practices are sufficiently egre- gious within the Supreme Court's standards in the Gissel case 45 to conclude that the application of the Board's tra- ditional remedies will not serve to eliminate the lingering coercive effects of these practices; that a fair rerun or new election has been rendered highly improbable; that the signed authorization cards of a majority of the employees reliably demonstrate their representation desires for pur- poses of the Act; and that a remedial bargaining order is warranted46 The complaint herein does not allege a viola- tion of Section 8(a)(5) on the basis of Respondent's refusal to bargain when the Union requested recognition on April 21. It is unnecessary to reach such an issue.47 In Trading Port, Inc.,48 the Board decided that an employer's obliga- tion under a Gissel bargaining order should commence as of the date of the employer's embarkation on a clear course of unlawful conduct. As I find that Respondent embarked on such a clear course when it undertook, on April 21, to assign espionage operations to the security guard, thereaf- ter acting upon his reports, the recommended remedy will provide that Respondent's bargaining obligation be deemed to have commenced on such date, which coincides with the Union's bargaining request and card majority.49 111. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent, set forth in section II, above, occurring in connection with its operations de- scribed in section I, above, have a close, intimate, and sub- 43 The tests each party applied at such meeting for counting the cards do not appear 44 E g, Blade-Tribune Publishing Company, 161 NLRB 1512, 1513 (1966) 45 395 U S at 613-615 46 E g , Elling Halvorson, Inc, 222 NLRB 534 (1976) 47 Id at In 4 Nothing in Gissel conditions the bargaining order remedy upon a demand for bargaining Ludwig Fish & Produce, Inc, 220 NLRB 1086 (1975) 48 219 NLRB 298 (1975) 49 And see Fordham Equipment Company, Inc, 221 NLRB 681 (1975) 440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD stantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes bur- dening and obstructing commerce and the free flow of commerce. IV. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action de- signed to effectuate the policies of the Act. Particularly in view of the discriminatory discharges, a broad cease-and- desist order is provided.50 It has been found that Respondent discharged Wilma Peay and Vera Owens in violation of Section 8(a)(3) of the Act. It will therefore be recommended that Respondent offer these employees immediate and full reinstatement to their former positions or, if such positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings they may have suffered as a result of the discrimination against them, by payment to them of a sum equal to that which they normally would have earned, absent the discrimination, from the date of the discrimination to the date of Respondent's offer of re- instatement, less net earnings, in accordance with the for- mulae set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co, 138 NLRB 716 (1962). It will be further recommended that Respon- dent preserve and make available to the Board, upon re- quest, all payroll records, social security payment records, timecards, personnel records and reports, and all other rec- ords necessary and useful to determine the amounts of backpay and the rights of reinstatement under the terms of these recommendations. In view of the provision for a remedial bargaining order, it is recommended that the election held on May 14 be set aside and the petition be dismissed. Upon the foregoing findings of fact, and upon the entire record in the cases, I make the following: CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the mean- ing of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By discharging Wilma Peay and Vera Owens, thereby discouraging membership in the Union, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 4. By the foregoing, and by other specific acts and con- duct interfering with, restraining, and coercing employees in the exercise of their rights guaranteed in Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. so N L R B v Express Publishing Company, 312 U S 426 (1941), N L.R B v Entwistle Mfg Co, 120 F 2d 532 (C A 4, 1941) 5. All regular full-time and regular part-time service and maintenance employees employed by Respondent at its Towson, Maryland, facility, excluding registered nurses, li- censed practical nurses, office clerical employees, profes- sional employees, guards, and supervisors as defined in the Act, constitute a unit appropriate for the purpose of collec- tive bargaining within the meaning of Section 9(b) of the Act. 6. Since April 21, 1975, the Union has been, and is now, the exclusive representative of all employees in the appro- priate unit within the meaning of Section 9(a) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 8. Respondent's unlawful conduct interfered with the election held on May 14, 1975. Upon the above findings of fact, conclusions of law, and the entire record in the cases, and pursuant to Section 10(c) of the Act, I hereby recommend the following: ORDER51 Respondent, Multi-Medical Convalescent and Nursing Center of Towson, Towson, Maryland, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Coercively interrogating employees concerning their union activities or those of their fellow employees. (b) Threatening employees with layoff, discharge, or other reprisal if they select as their representative, or be- cause of their activities in behalf of, District 1199E, Na- tional Union of Hospital and Health Care Employees, Re- tail, Wholesale and Department Store Union, AFL-CIO, or any other labor organization. (c) Assigning or utilizing its security guards, or any other agents, to engage in surveillance of and reporting on employees' union sentiments or activities in violation of Section 8(a)(1) of the Act. (d) Discouraging membership in the above-named labor organization or in any other labor organization by dis- charging employees, or in any other manner discriminating in regard to hire or tenure of employment or any term or condition of employment. (e) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights guaran- teed in Section 7 of the Act. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act: (a) Offer Wilma Peay and Vera Owens immediate and full reinstatement to their former positions or, if such posi- tions no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and priv- ileges, and make them whole for any loss of earnings, in the manner set forth in the section of this Decision entitled, "The Remedy." 51 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes MULTI-MEDICAL CONVALESCENT (b) Upon request, recognize and bargain collectively with District 1199E, National Union of Hospital and Health Care Employees , Retail, Wholesale and Depart- ment Store Union, AFL-CIO, as the exclusive bargaining representative of its employees in the appropriate unit de- scribed above with respect to rates of pay, wages, hours of employment, and other terms and conditions of employ- ment, and embody in a signed agreement any under- standing reached. (c) Preserve and, upon request, make available to the Board or its agents all payroll and other records, as set forth in the section of this Decision entitled , "The Reme- dy" (d) Post at its Towson , Maryland, facility, copies of the attached notice marked "Appendix." 52 Copies of said no- 52 In the event that the Board 's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by 441 tice, on forms provided by the Regional Director for Re- gion 5, after being duly signed by Respondent, shall be posted immediately upon receipt thereof, in conspicuous places, and be maintained for 60 consecutive days. Rea- sonable steps shall be taken to ensure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 5, in wnt- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED that Case 5-RC-9304 be severed and remanded to the Regional Director for appropriate disposition in conformance with the findings herein. 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 "