Smithtown Nursing Home

SMITHTOWN NURSING HOME 23 Herbert Kallen, d/b/a Smithtown Nursing Home, Smithtown Senior Home , and Smithtown Lodge and District 1199, National Union of Hospital and Health Care Employees, Retail, Wholesale and Department Store Union, AFL-CIO. Cases 29- CA-4252 and 29-RC-2860 February 8, 1977 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND WALTHER On March 18, 1976, Administrative Law Judge Samuel Ross issued the attached decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief. Respondent also filed a motion for rehearing de novoi and a memorandum in support thereof, The General Counsel filed a brief in support of the Administrative Law Judge's Decision and a brief in opposition to Respondent's exceptions and motion for rehearing de novo. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions, motion, and briefs and has decided to affirm the rulings, findings,2 and conclusions3 of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the Respondent, Herbert Kallen, d/b/a Smithtown Nursing Home, Smithtown Senior Home, and Smithtown Lodge, Smithtown, New York, its officers, agents successors, and assigns, shall take the action set forth in the said recommended Order. IT IS FURTHER ORDERED that the petition in Case 29-RC-2860 be, and it hereby is, dismissed. ' We hereby deny Respondent's motion for rehearing de novo as lacking in merit 2 Respondent has excepted to certain credibility findings made by the Administrative Law Judge It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect . Standard Dry Wall Products, Inc, 91 NLRB 544 (1950), enfd 188 F 2d 362 (C A 3, 1951) We have carefully examined the record and find no basis for reversing his findings The Administrative Law Judge inadvertently found at sec III, E, par 4, of his Decision that Respondent gave unusually large wage increases to employees on December 10, 1974 It is clear from the record that such increases were given on December 20, 1974 228 NLRB No. 8 Relying in part on the credited testimony of employee Bellantomo, the Administrative Law Judge found, inter alga, that Respondent unlawfully threatened to make negotiations difficult and prolonged In our view, this finding is strengthened by additional testimony of Bellantonio which was not retied on by the Administrative Law Judge, to the effect that Respondent told employees "They [ Respondent ] didn't have to negotiate if they didn't want to it would take a long time . If they negotiated at all " Although we agree with the Administrative Law Judge that Respondent unlawfully withheld raises from some of the unit employees based on Administrator Kaye's admission that he took this action "because of the advent of the Union organizing drive," we find that Respondent's overall conduct with respect to wage increases, including its unlawful granting of wage increases, constituted a selective application of its wage rate policy in violation of Sec . 8(ax 1). 3 As noted above, the Administrative Law Judge inadvertently found that the Respondent embarked on its campaign to destroy the Union's majority status on December 10, 1974, rather than on December 20 when the wage increases constituting the first of Respondent 's unfair labor practices actually were given. In accordance, therefore, with the principles enunciated in Trading Port, Inc, 219 NLRB 298 (1975), we find and conclude that the bargaining order should commence from that date and not the date of the demand for recognition , as was found by the Administrative Law Judge Carl Corporation, a wholly owned subsidiary ofO'Connor Industries, 222 NLRB 243 (1976), Franklin Parish Broadcasting, Inc., 222 1133 (1976). Member Jenkins would find the 8(aX5) violation as of the date Respon- dent refused the Union's demand for recognition on December II, and would date the bargaining obligation from that date DECISION STATEMENT OF THE CASE SAMUEL Ross, Administrative Law Judge : Case 29-CA- 4252 is based on a charge filed by the above-named Union on March 10, 1975, and on a complaint which issued thereon on June 30, 1975, against Herbert Kallen, d/b/a Smithtown Nursing Home, Smithtown Senior Home, and Smithtown Lodge, herein Respondent , which alleges that Respondent engaged in unfair labor practices within the meaning of Sections 8(a)(l) and 2 (6) and (7) of the Act. The complaint was amended on August 20, 1975, to allege that Respondent also engaged in unfair labor practices within the meaning of Section 8(a)(5) of the Act. More specifically, the complaint as amended alleges that, after Respondent was apprised by a demand for recognition that the above- named Union represented a majority of its employees in a unit appropriate for the purposes of collective bargaining, it refused to recognize the Union and it thereafter engaged in various acts of interference, restraint, and coercion of its employees in order to undermine and dissipate the Union's majority status among the said employees . Respondent filed an answer which denies the substantive allegations of the complaint and the commission of unfair labor practices. Case-29-RC-2860 is based on a petition filed by the above-named Union on December 17, 1974, for certifica- tion as the collective-bargaining representative of the said employees. Pursuant to the said petition , an election was conducted by the Board on February 28, 1975, which resulted in four votes for the Union and seven against with no challenged ballots . The Union thereafter filed timely objections to conduct affecting the results of the election which in substance allege that Respondent interfered with the holding of a fair election by conduct which also is alleged as unfair labor practices in Case 29-CA-4252. Inasmuch as the Regional Director issued a complaint in the latter case, based, inter alia, on the same conduct as that alleged in some of the Union's objections to the election, 24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Regional Director issued an order on August 25, 1975, III. THE UNFAIR LABOR PRACTICES consolidating the two cases for hearing, ruling, and disposi- tion by an Administrative Law Judge. These consolidated cases were heard before me on October 20, 21, and 22, 1975, in Hauppauge and Commack, New York. Upon the entire record, i including my observa- tion of the witnesses and their demeanor, and after due consideration of the briefs filed by the parties, I make the following: FINDINGS OF FACT 1. COMMERCE Respondent is an individual who owns and operates three facilities on a 15-acre tract of land in Smithtown, New York. The three facilities are known as the Smithtown Nursing Home, an institution where a high degree of medical care is available to patients; the Smithtown Lodge, a moderate care institution; and the Smithtown Senior Home, an adult residence facility where minimal medical assistance is provided. The Nursing Home and Lodge are connected buildings. The Senior Home is located about 150 yards away. The three facilities are operated as a single- integrated business enterprise with a common labor policy for the employees. During the past year, a representative period, Respondent derived gross revenues in excess of $100,000 from the operation of the said facilities. During the same period, Respondent purchased and caused to be delivered to the said facilities goods and materials valued in excess of $50,000 which were transported and delivered to him from enterprises located in the State of New York which received the said goods and materials in interstate commerce directly from places located outside the State of New York. Upon the foregoing undisputed facts, Respon- dent admits and I find that he is engaged in commerce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act. Ii. THE LABOR ORGANIZATION INVOLVED Respondent also admits and I find that District 1199, National Union of Hospital and Health Care Employees, Retail, Wholesale and Department Store Union, AFL- CIO, herein the Union, is a labor organization within the meaning of Section 2(5) of the Act. i The transcript of the earlier hearing in Case 29-RC-2860 was made a part of the record in the instant hearing as G.C Exh 10 2 The parties are in disagreement as to whether Gloria Mulgrew, one of the three recreation aides in the Lodge, was an employee or supervisor at the times material herein This issue will be determined infra. 3 The recreation aides who signed cards at this meeting were Charlotte Eith, Sonya Pierce, Nancy Bellantonio, Barbara May, and Helene Race 4 Respondent contends that the card signed by Manlyn Suspenski should A. Background The Union has been the collective-bargaining representa- tive of several units of Respondent's employees for a number of years. It has represented Respondent's service and maintenance employees for about 5 years, and the licensed practical nurses and registered nurses for about 2 years. In each case, Respondent recognized the Union as the representative of the employees in the said units on the basis of a card check and without resort to the election procedures of the Board. In addition to the employees represented by the Union, Respondent also employs recreation aides and one social service employee who had not previously been represented by any labor organization. The recreation aides are employees whose function it is to involve Respondent's patients and residents in games, exercises, and other activities and to thereby enable them to lead a more meaningful existence than just lying or sitting around and doing nothing. The social service employees' function is to counsel Respondent's patients concerning their adjustment problems. In Case 29-RC-2860, the Regional Director found that Diane Castiglia, the social service employee, is a professional employee within the meaning of Section 2(12) of the Act. At the times material herein, Respondent employed seven recreation aides in the Nursing Home, two or three in the Lodge, and one in the Senior Home.2 B. Union Organization and the Demand for Recognition On December 4, 1974, the Union began a campaign to organize Respondent's recreation aides. On that date, at an organizational meeting conducted by Grace Du Breuil, an organizer for the Union, five of the recreation aides signed cards applying for membership in the Union and authoriz- ing the Union to represent them for collective-bargaining purposes .3 On December 11, 1974, Du Breuil received two additional cards signed by recreation aides Rosalyn Faust and Marilyn Suspenski.4 The Union thus had authoriza- tions to represent 7 of the 10 or II recreation aides employed by Respondent. On the morning of December 11, 1974, shortly before the recreation aides were scheduled to begin work, Du Breuil, accompanied by six (a majority) of Respondent's recreation aides, entered the office of Administrator Owen Kaye and requested immediate recognition of the Union as the collective-bargaining representative of the recreation aides. According to Du Breuil, whom I credit, she suggested to not be counted towards the Union's majority because there is no testimony that anyone saw her sign the card However , Nancy Bellantonio credibly testified without contradiction that she gave a blank union card to Suspenski for signature and that Suspenski later returned her signed card to Bellanto- mo. In the light of that testimony, and the absence of any evidence that Suspenski's signature is not genuine , I find that Suspenski signed the card which she gave to Bellantonio SMITHTOWN NURSING HOME Kaye that a card count be used as in the past. Kaye replied that "that sounded reasonable" and that "he would get back to me (Du Breuil)."5 Du Breuil thanked Kaye and she and the recreation aides then left his office. As they did so, they encountered Diane Castiglia, the social service em- ployee, who told Du Breuil that she had decided to join the Union. Du Breuil thereupon gave Castiglia a membership application and authorization card which Castiglia prompt- ly filled out and signed. Du Breuil and Castiglia then sought out Kaye, and Du Breuil advised him that the Union's request for recognition was intended to include Diane Castiglia, the social service employee. Kaye again respond- ed that he would get back to Du Breuil. However, on December 17, 1974, Kaye sent the following mailgram to the Union: WE ARE IN RECEIPT OF YOUR MAILGRAM DATED 12-12-74 WE DOUBT THAT YOU REPRESENT A MAJORITY OF THE EMPLOYEES IN THE SOCIAL SERVICES AND OR RECREATION DEPARTMENT INFORMATION IS AT OUR DISPOSAL WHICH CLEARLY INDICATES THAT YOUR REQUESTS FOR RECOGNIZATION IS INPROPER (SIC) IF YOU WISH YOU MAY ULITIZE (SIC) PROPER PROCEDURES OF THE NATIONAL LABOR RELATIONS BOARD IN THIS MATTER OWEN KAYE ADMINISTRATOR SMITHTOWN NURSING HOME C. The Appropriate Unit and the Union 's Majority Status The complaint alleges, Respondent at the hearing admit- ted, and I find that the following unit of employees is appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All recreation aides and the social service employee employed by the Respondent, excluding all other employees, guards, watchmen and supervisors as de- fined in the Act. On December 11, 1974, when the Union demanded recognition as the collective-bargaining representative of the recreation aides and the social service employee, Respondent employed either 10 or 11 recreation aides, depending on whether Gloria Mulgrew, whose status is in dispute, was then a supervisor or not. The General Counsel contends that Mulgrew has been a supervisor at all the times material herein. Respondent admits that Mulgrew is now a supervisor, but it contends, based on her vote at the election without challenge, that she was an employee when the demand for recognition was made and when the 5 According to Du Breuil and Bellantonio whom I credit, Du Breuil was accompanied on this occasion by recreation aides Race, Pierce , Eith, May, Faust, and Bellantonio Barbara May also credibly testified that she was present when the demand for recognition was made Administrator Kaye testified that May was on vacation on that date, and that he did not recall seeing her Later, when it was pointed out to Kaye that despite May's vacation status, she still could have been present when the demand for recognition was made , Kaye testified "more affirmatively" that she had not been there Still later, on cross-examination, Kaye testified that when Du Breuil came to his office to request recognition for the recreation aides, "about 10 people I would say were there " In the light of that response, it is 25 election took place. According to Kenneth Kallen, the son of Respondent and the director of operations of Respon- dent's facilities, Mulgrew has been "Recreational Director" at the Lodge since prior to December 11, 1974, the date of the demand for recognition. In addition to Mulgrew, Respondent has two other recreation aides at the Lodge, Patti McLellan and Dolores Birkbeck, each of whom received $2.50 per hour in December 1974. Mulgrew, however, unlike these and all the other recreation aides who are paid by the hour and punch a timeclock, was promoted to "recreation head" and put "in charge of recreation in the Lodge" on September 25, 1974, and was then given a weekly salary of $150.6 I conclude from all the foregoing, including her weekly salary status, her substantially higher compensation, and her designation as recreational director at the Lodge, that on December 11, 1974, when the Union demanded recognition, Gloria Mulgrew was and ever since has been a supervisor of Respondent within the meaning of Section 2(11) of the Act. I therefore find that when the Umon demanded recognition, Respondent employed 10 recreation aides in the appropriate unit found above. As previously noted, in Case 29-RC-2860, the Regional Director found that Diane Castiglia, the social service employee, was a professional employee within the meaning of Section 2(12) of the Act. The Regional Director further found that if the social service employee so chose, her inclusion in the unit with the recreation aides was appropri- ate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. Castiglia disclosed on December 11, 1974, that she desired to be included in the aforesaid appropriate unit by signing the Union's member- ship application and authorization card on that date, and by accompanying Union Organizer Du Breuil when she told Administrator Kaye that her demand for recognition was intended to include Castiglia.7 There were thus II employees in the appropriate unit on December 11, 1974, when the Union demanded recognition as the representa- tives of the recreation aides and the social service employee. On that date, the Union had authorization cards signed by eight of the employees in the appropriate unit, and thus clearly represented a majority of the employees in the unit. Moreover, since seven of the employees in the unit accompanied Du Breuil when she made the two demands for recognition, it is quite obvious that Respondent knew that the Union represented a majority of the employees in the appropriate unit. Respondent contends that the authorization cards of four of the employees in the appropriate unit, those of Marilyn Suspenski, Diane Castiglia, Rosalyn Faust, and Barbara May, should not be counted as part of the Union's majority status. It contends that Marilyn Suspenski's card should not be counted because its genuineness was not properly fairly evident that Du Breuil was accompanied by the six recreation aides named above, and since I consider Kaye's testimony as unreliable in many respects, I do not credit his testimony that May was not present when the demand for recognition was made 6 Anne O'Hara, Respondent's employee in charge of payroll and a witness for Respondent, so testified Prior to the said promotion, Mulgrew had worked at the hourly rate of $3.Only one other recreation aide, Barbara May, received an hourly rate as high as $3 at that time. 7 Castigha also voted later at the Board election on February 28, 1975, for inclusion in the unit 26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD authenticated. However, as found above, I regard her card to have been properly validated by Bellantomo's testimony, and I reject Respondent's contention as to her card. Respondent contends further that the cards of Diane Castiglia and Rosalyn Faust should not be counted because they assertedly "were led to believe that they would automatically get benefits" if they signed the cards.8 The credited testimony does not support this contention as to either of these employees. Castiglia first testified that, before she signed the Union's card, Du Breuil had told her on the telephone about the medical, dental, wage, and other benefits which the Union "could get" for her. Castiglia then testified that she was told by Du Breuil that "by joining the Union, I would have them [these benefits]." I do not credit Castiglia's testimony in this latter respect for the following reasons, including my assessment of her testimony as frequently evasive and generally unreliable. Castigha ad- mitted on cross-examination, albeit reluctantly, that her latter response represented an impression which she drew from her conversation with Du Breuil. Castiglia further admitted that she had never been told by Du Breuil that the Union benefits "would come automatically from the Union without negotiation," and that she knew that wage increas- es come from the employer and not the Union. Similarly, Faust, a witness for the General Counsel, testified on cross- examination that the recreation aides were told by Du Breuil that they "would get a much higher salary than we were presently receiving from the Home. And other benefits were mentioned." Faust conceded, however, that they were told by Du Breuil that "the Union was going to try to get these benefits for us." Du Breuil, whom I credit in this regard, testified that she told Castiglia and the recreation aides about the benefits which the Union already had won through negotiations for the nurses aides, and that she was going "to try to get the same benefits for the recreation aides and the social service worker." I conclude from the foregoing credited testimony of Faust and Du Breuil that the cards of Castiglia and Faust were not obtained through any misrepresentation that they would automatically result in higher wages and better benefits. I therefore reject the contention of Respondent that the cards of these two employees should not be counted towards the Union's majority status. Respondent finally contends that the card signed by Barbara May should not be counted because she had been told before she signed the card that it "was not binding," and that she "could have the card back at any time." The short answer to this contention is that there is no evidence that May ever asked the Union to return her card, and that, to the contrary, May accompanied Du Breuil to Kaye's office when Du Breuil, in the company of six of the recreation aides, demanded recognition of the Union as their representative. I therefore reject as without merit the contention that May's card should not be counted, and I again conclude that on December 11, 1974, the Union represented 8 of the 11 employees in the appropriate unit, a clear majority. 8 The quotes are from the Respondent's brief 9 After much evasion, Administrator Kaye finally conceded that the purpose of the meetings was to "get them [the employees ] to vote for management " D. The Respondent's Campaign To Dissipate the Union's Majority Status 1. Promises and threats before the Board's election Following the Union's request for recognition and the filing of its certification petition, Respondent held a serves of six meetings with the employees in the appropriate unit for the admitted purpose of persuading them to vote against representation by the Union .9 The meetings were held during working hours and the unit employees who worked on the days that they occurred concededly were "captive audiences." The meetings were addressed by Administrator Kaye. Director of Operations Kenneth Kallen, Respon- dent's son, attended several of the meetings and spoke to the employees at one of them. Other supervisors also were present at some of the meetings. At these meetings, Kaye told the recreation aides that there had been a lack of communication between Respon- dent and the employees, and that he was there to listen to their complaints and gripes. Kaye said that he thought that the wage rate of $2.50 an hour which many of them were receiving was low, and while he could make no promises regarding what Respondent would do about it, he believed that they "should have an increase in salary," and promised "to review the matter of wages when the [union ] matter was resolved." Kaye also said that Respondent had instituted a new personnel policy which would apply to them "if there was no Union," and that while he could not legally reveal the details of what the new policy contained, and the employees would have to take his word for it, the new policy in fact was very good, "would make things better," and the recreation aides would "appreciate" its contents which would be made applicable to them "if the Adminis- tration [the Respondent] won the election." Kaye said that, on the other hand, if the Union became their representative, the employees would no longer be able to come to him directly with their problems, and would, instead, have to do so through the Union. Kaye further said that voting the Union in would not necessarily get the employees what they wanted, and that unlike his previous negotiations with the Union, his approach now to negotiating with the Union would be different, he was "going to really bargain," and "make negotiations difficult for us," he would fight it if the Union got in, and if it "resulted in a labor action or strike, so be it." Kaye further said that the negotiations would take a long time, and Kallen said it might take "until July." At one of the meetings, Respondent handed out a leaflet in which employees were requested to ask the Union to "guarantee," inter alia, that they would not be "forced to go on strike," and that they would "not be replaced during a strike" and would have their "jobs back when the strike is over." io In the context of Respondent's manifest hostility to the representation of the recreation aides and the social service employee by the Union, Administrator Kaye's statement to the captive audience employees that there had been a lack 10 See G.C. Exh. 9-B. The findings above are based on a composite of the credited testimony of Faust, Bellantonio , and May, and on admissions by Kaye and Kallen which 1 credit to this extent SMITHTOWN NURSING HOME of communication between them, and his invitation to the employees to air their grievances and complaints, clearly conveyed the intended message that the employees did not need the Union, and the implied promise that if they voted against union representation at the Board election, Respon- dent would satisfactorily resolve their grievances. In Ring Metals Company,11 the Board said the following in respect to like conduct by an employer: where . . . an employer who has not previously had a practice of soliciting employee complaints, institutes such a practice to coincide with an organizational campaign, the employer has engaged in improper interference with his employees' freedom of choice in violation of Section 8(a)(1). There is no evidence that Respondent previously held meetings with the recreation aides and the social service employee for the purpose of discussing employee com- plaints, and there are indications in the record that it had not. Under the circumstances, I find that, by Kaye's solicitation of employee grievances and his implied promise to rectify them, Respondent engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act.12 A like promise of better wages clearly was conveyed to the employees by Kaye when he told them that the wage rate which they were receiving was low and that while he could make no promises, he believed that they "should have an increase in salary." Sinularly, Kaye's remarks to the employees about Respondent's new personnel policy which would apply to them "if there was no Union," whose contents he assertedly could not legally reveal, but which "would make things better" and which the employees would "appreciate" when it was made available to them upon the Union's defeat at the Board election, subtly, but nevertheless clearly, conveyed a promise of better employ- ment conditions as a reward if the employees voted against union representation. In the context of Respondent's open opposition to the Union, and Kaye's admission that the purpose of the meetings with the employees was to persuade them "to vote for management," it is obvious that these promises were made to induce these employees to abandon their support of the Union and thus interfered with the employees "freedom of choice" guaranteed in Section 7 of the Act. I therefore find that, by these statements, Respondent engaged in further unfair labor practices within the meaning of Section 8(a)(1) of the Act. In his efforts to persuade these employees "to vote for management," Kaye utilized both the "carrot" and the "stick" techniques. Thus, in addition to the promises found above, Kaye also warned his captive audience employees that, if they designated the Union as their representative, it would not necessarily bring about their desired improve- ments in wages and working conditions, for unlike his previous negotiation with the Union, his approach to negotiations would be different, he was going to "really bargain," and "make negotiations difficult," and pro- " 198 NLRB 1020(1972) 12 McMullen Corporation, d/b/a Briarwood Hilton, 222 NLRB 986 (1976) 13 The findings above are based on the credited testimony of recreation aides Faust, Bellantonio, Race, and May, and on that of Kaye to the extent that it accords with their testimony Kaye admitted during his cross- 27 longed, and that if this resulted in a strike, "so be it." Moreover, by the distribution of the leaflet in evidence as General Counsel's Exhibit 9-B, Kaye also subtly warned that, in the event of a strike, employees who struck would be replaced and would not have their jobs back when the strike ended. I find that by these statements and the said leaflet, Kaye artfully threatened that, if the Union won the election, Respondent would not, as required by the Act, negotiate expeditiously and in good faith with a view to reaching prompt agreement with the Union, and that he would permanently replace them if they struck in protest over the prolonged negotiations. I find that by these threats Respondent interfered with, restrained, and coerced em- ployees in the exercise of their rights under the Act, and that it further violated Section 8(a)(1). 2. The offer to deal and contract directly with the employees At one of Kaye's captive audience meetings with the recreation aides and the social service employee, Linda Thal, one of the aides asked Kaye whether the employees could have their own contract with Respondent without the Union, and she offered to bring in such a contract which would be agreeable to the other recreation aides. Kaye responded that she should bring it in and he would look it over. Kaye also offered to have the said contract with the employees drafted by Respondent's attorney, but Thai rejected his offer and stated that she preferred to have it prepared by a lawyer friend of her family. At the next meeting of the employees called by Kaye, he announced that he had been advised by counsel that Respondent could not legally contract directly with the employees during the Union's organizational campaign.13 At the time that Kaye agreed to consider an individual employment contract with the recreation aides and the social service employee, he had knowledge, contrary to the disclaimer in this mailgram to the Union, that the Union represented a majority of the recreation aides and the social service employee unit, for, as previously noted, when Union Organizer Du Breuil demanded recognition of the Union, she was accompanied by 6 of the aides and by the social service employee, a clear majority of the 11 employees in the unit. Bargaining by an employer directly with his employees when a majority of them have designated a labor organization to represent them for the purposes of collec- tive bargaining violates employees' Section 7 rights. More- over, an employer is not relieved of his obligation to deal exclusively with his employees' designated representative merely because the employees ask that their designation be disregarded.i4 Respondent contends that this violation of the Act should be overlooked because "any damage to the employ- ees' free choice which may have been caused . . . was effectively neutralized by the disclaimer made by top examination that he offered to have Respondent's counsel draft the proposed direct contract with the employees 14 Medo Photo Supply Corporation v. N L R B, 321 U.S 678, 684-685, 687 (1944) 28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD management at the ensuing meeting prior to the elec- tion."15 I reject this contention as without merit for the record clearly discloses that unit employees did not attend all of Respondent's captive audience meetings, and that some of them did not hear Respondent's belated "disclaim- er." 16 Accordingly, inasmuch as Respondent's agreement to consider a direct contract with the unit employees without the Union tended to denigrate, demean, and dissipate the Union's status as the majority representative of the employees, I find that, by the offer to draw up and to consider such a direct contract with the unit employees, Respondent further trenched and impinged on its employ- ees' Section 7 rights and violated Section 8(a)(1) of the Act.17 3. The granting of wage increases prior to the Board election In the weeks immediately following the commencement of union organization on December 4, 1974, and the Union's request for recognition on December 11, 1974, and before the Board election on February 28, 1975, Respon- dent gave unusually large wage increases to 5 of the 11 employees in the appropriate unit for which recognition was sought. Helene Race and Linda Thal, both of whom had received a wage increase of 10 cents an hour less than I month earlier, were given additional raises of 65 cents an hour to $3.25 in their pay on December 20, 1974, and January 3, 1975, respectively; Nancy Bellantomo was raised from $2.50 to $3 an hour in her pay on December 20, 1974; Marilyn Suspenski was raised 75 cents an hour from $2.50 to $3.25 in her pay on December 20, 1974; and Diane Castiglia, the social service employee who had received a 35-cent increase to $3.60 an hour as of November 13, 1974, was given an additional increase to $3.75 an hour as of January 1, 1975. It is by now well established that the granting of wage increases during a union organizational campaign to induce employees to vote against union representation interferes with, restrains, and coerces employees in the exercise of rights guaranteed by Section 7 of the Act and violates Section 8(a)(I).18 Respondent has advanced a number of reasons in support of its contention that the wage increases which it gave to the above-named employees neither violated the Act nor interfered with the conduct of the Board election. As explicated below, I regard Respondent's contention to be without merit and I conclude that the raises were given for the purposes of inducing employees to vote against the Union at the Board election. According to Administrator Kaye, Respondent has a wage policy for its recreation aides which admittedly is "very vague." Kaye testified that aides are hired at "the lowest scale," $2.50 an hour, that at the end of between 60 and 90 days of employment, there is a review of their wage 15 Respondent's brief 16 Thus, the record discloses, for example , that Linda Thal who proposed the individual employment contract with the Respondent attended only the one meeting at which she made the proposal and did not attend the ensuing meeting at which the disclaimer was made Similarly , Diane Castigha, the social service employee attended only two or three of the Respondent's meetings, and Barbara May and Helene Race credibly testified that after the meeting at which an individual employment contract with Respondent was proposed, they never heard the subject of such a contract discussed again rates,19 and after that, there is a further review between 5 and 7 months "from the date of the last increase." However, contrary to Kaye's testimony regarding the said wage review policy, the testimony of Respondent's witness, Payroll Custodian Anne O'Hare, regarding the wage increases which had been given to the recreation aides clearly disclosed that the time intervals between hiring and raises for newly hired aides, and between raises for employees no longer on probation, followed no fixed time patterns. Kaye testified that "a usual increase" is "some- thing like 25 to 35 cents an hour," and that "50 cents an hour is a big increase." The raises given to the above-named employees clearly did not conform to the alleged wage review policy. In the first place, the amounts of the raises given to Race (65 cents), Suspenski (75 cents), Bellantomo (50 cents), and Thal (65 cents) obviously were far greater than the 25 cents to 35 cents which Kaye testified was usual. Respondent offered no explanation as to why raises in these unusually large amounts were given. Moreover, the timing of several of these raises clearly did not accord with the wage review policy as explicated by Kaye. Thus, contrary to the asserted policy of wage review within 5 to 7 months "from the date of the last increase," Race and Thal were given their unusually large raises about 1 month after their last increase, and Castiglia was given her raise less than 2 months after her previous raise in pay. I conclude from all the foregoing that no credence can be given to Kaye's testimony regarding the Respondent's policy of periodic wage reviews, other than that it admittedly was "very vague." Respondent's brief in effect contends that the raises given to the above-named employees prior to the Board election did not violate the Act or interfere with the conduct of the election, inter alia, because three of them had expressed dissatisfaction with their rates of pay.20 Such dissatisfaction clearly was not limited to the above-named employees, for it is apparent from the record that all of the recreation aides and the social service employee who signed union authon- zation cards did so, in part, with the hope of thereby improving their wage rates and other conditions of employ- ment. This did not, however, justify Respondent's granting wage increases during the pendency of the Union's organi- zational campaign other than those which would have been made in the normal course of business, absent the Union's campaign. It obviously could not justify the granting of exceptionally large wage increases to induce employees to vote against the Union at the Board election.21 Respondent further contends that the January 1, 1975, raise which it gave to Castiglia less than 2 months after her last increase in pay did not violate the Act because it was given to her in fulfillment of an agreement made to her when she was hired on September 24, 1973. I place no credence in the testimony of Kaye regarding this alleged 17 Medo Photo Supply Corporation v. N L R B, supra 18 N LR B v Exchange Parts Company, 375 U S 405 (1964) 19 According to the personnel policy of the Respondent in effect when the Union began its organizational campaign , newly hired employees serve a probationary period of 60 days from the date of hinng See G C Exh 15, par 4. 20 Race, Thal, and Suspenski . Suspenski had threatened to resign on December 22, 1974, because of "insufficient wages." (Resp Exh. 14.) 21 N. L R B v Exchange Parts Co, supra SMITHTOWN NURSING HOME 29 agreement, and I consider his self-serving memorandum dated October 28, 1974, regarding it, as a predated fabrication created for the purpose of this hearing.22 I base these conclusions on the following considerations. Accord- ing to three other memoranda in evidence, Castigha was placed on full-time status at $3.25 an hour on May 10, 1974; on November 19, 1974, she was given an increase of 35 cents an hour "as of November 13, 1974;" and on January 1, 1975, less than 2 months later, she was given the additional increase of 15 cents which allegedly violated the Act. None of the Respondent's three memoranda which recorded these wage increases contain any reference to any promise of wage increases made to Castiglia when she was hired.23 Kaye's rejected memorandum, although subpenaed by the General Counsel, was not produced by Respondent until the last day of the hearing when Kaye, Respondent's last witness, was testifying. The memorandum significantly did not come from Castiglia's personnel file, but it rather allegedly was found belatedly during a search "in a file of some personal correspondence" which Kaye had left at Respondent's Nursing Home. According to Kaye, the unfulfilled agreement pursuant to which he assertedly gave raises to Castiglia on November 19, 1974, and again on January 1, 1975, was made to her by Kenneth Kallen, Respondent's son. Although Kallen was present throughout most of the hearing in this case, and he testified for the General Counsel as a witness under Rule 43(b) of Rules of Civil Procedure for the United States District Courts, he was not called by Respondent to testify, and he gave no testimony regarding any such agreement when Castiglia was hired to give her raises. Thus, Kaye's rejected self- serving memorandum and his testimony regarding the said alleged agreement are pure hearsay, and I accord them no probative value. Moreover, Castigha, a witness for Respon- dent, did not testify that any agreement about raises was made to her by Kallen when she was hired. Her only testimony about a promise to a raise referred to one allegedly made to her by Kaye in November 1974, when she received a raise of 35 cents an hour. She testified in this respect on cross-examination that in October or November 1974, when she asked Kaye for a raise of 50 cents an hour, Kaye told her that he could only give her 35 cents and that "he would try to get" her the rest "by the end of the year," but that "he could not guarantee that the Kallens would give me the 15 cents."24 In the light of all the foregoing, including the absence of any reference to a prior promise in the memorandum granting Castiglia a 15-cent raise as of January 1, 1975, 1 reject as without merit Respondent's contention that the raise given to Castiglia at that time was made in fulfillment of a prior agreement. Respondent finally contends that the increases in wage rates given to Race and Suspenski could not have been motivated by antiunion considerations because they were approved on December 10, 1974, the day before the Union requested recognition. In support of this contention, Respondent offered into evidence two memoranda signed by Kaye dated on that date which granted raises to Race and Suspenski "as of December 11, 1974." 25 I find no merit in this contention because I am persuaded by the record that the Respondent then had knowledge of the Union's organizational campaign which began on December 4, 1974.26 Viewed in the light of Respondent's determined cam- paign to defeat the Union at the Board election, the timing of the wage increases to the five employees in the appropri- ate unit immediately after the commencement of the Union's organizational campaign, the absence of any specific wage review policy which required the increases to be given prior to the Board election, the short time interval of some of these raises since the previous ones, and the unusually large amounts of the increases, I conclude that they were given for the purpose of inducing Respondent's employees to vote against union representation at the Board election. That conclusion is further supported by the circumstanc- es surrounding the raise given by Kaye to Bellantonio on December 18, 1974, retroactive to December 11, 1974. Bellantonio was hired by Respondent on August 7, 1974. When she was hired, Bellantonio was told by Supervisor Sue Montenegro that her probation period would be 3 months. In November 1974, when the 3 months elapsed, Bellantonio asked Montenegro for a raise, but she was told by Montenegro that her prior statement regarding the length of the probation period had been erroneous, and that the period was 6 months. Montenegro told Bellantomo to "come back" for her raise at the conclusion of the additional 3 months.27 Following her conversation with Montenegro, Bellantonio did not thereafter ask for a raise before one was given to her on December 18, 1974. On that date approximately 2 months before Bellantomo was entitled to a raise according to Montenegro's statement to her, and I week after Bellantonio had accompanied Union Organizer Du Breuil into Kaye's office when recognition of the Union was demanded, Kaye called Bellantonio into one of the empty rooms at Respondent's Lodge and told her that she was going to get a raise in pay with her next paycheck. According to Bellantonio's credited testimony, she told Kaye that she thought that she was required to wait 6 months before she was entitled to a raise, and she asked him whether, in the light of the Union's recognition demand, the raise was legal. Kaye instructed Bellantomo not to tell anybody about it, and he said that if anyone asked him why she was given the raise, he would say that her probation period had just ended. Kaye also told Bellantonio that he had cleared her raise "through the N.L.R.B." On that same day, Kaye signed a memorandum raising Bellantonio's pay from $2.50 to $3 an hour retroac- tive to the week ending on the previous day, December 17, 1974.28 22 Respondent's Rejected Exh 15 23 G C. Exhs I8-A, 18-B, and 18-D 24 In view of her testimony quoted above , I do not credit Casugha's testimony on direct examination that her later I5-cent raise "had been prearranged " 25 Resp Exhs 12 and 13 26 Race signed her union authorization card on December 4, 1974 (G C Exh. 4-E) Suspenski signed hers on December 9, 1974 (G C Exh 4-H) Thus, both of these employees signed their union cards before Kaye approved the unusually large raises which they were given. 27 The findings above are based on Bellantomo's uncontroverted and credited testimony Supervisor Sue Montenegro was not called by Respon- dent to testify, and no explanation was offered for the failure to do so 28 See G C Exh 19 Kaye admitted that he had a conversation with (Continued) 30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I conclude from all the foregoing, including Respondent's campaign to defeat the Union at the Board election, and the timing of the raise to Bellantonio on the day after Respondent rejected the Union's recognition requests and the Union filed its petition for certification, that Respon- dent gave this raise to Bellantomo for the purpose of inducing her to withdraw her support of the Union and to vote against the Union at the election. I further conclude that by this raise and by the similarly motivated raises to the other above-named employees, Respondent engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act.29 4. The withholding of wage increases Administrator Kaye admitted during cross-examination that before the Board election, he also had withheld raises from some of the unit employees "because of the advent of the Union organizing drive." 30 It is by now well established that the withholding from employees of wages or other benefits which otherwise would have been given in the normal course of business, because of the pendency of a union organizational campaign, representation proceeding, or other union related considerations, impinges on employ- ees' rights under the Act and violates Section 8(a)(1).31 In the light of Kaye's admission, I therefore conclude that by withholding pay raises from employees because of the Union's organizing drive, Respondent further violated Section 8(a)(1) of the Act. 5. The granting of wage increases and other benefits after the Board election As previously noted, although the Union had signed authorization cards from 8 of the 11 employees in the unit when it requested recognition, it received only four votes at the Board election which was conducted on February 28, 1975. The Union thereafter filed timely objections on March 7, 1975, to Respondent's conduct affecting the results of the election, and on March 10, 1975, it filed the unfair labor practice charge against Respondent on which the instant complaint is based. Notwithstanding the pen- dency of the said objections and charge, and the possibility that a rerun election might result, Respondent thereafter gave additional wage increases to some of the unit employees, and increased the fringe benefits for all of them. In this regard, the record discloses as follows: After the election, Bellantomo and May, prompted by Kaye's subtle unlawful promise to improve wages if the Bellantonio about her raise in pay in an empty room at the Respondent's Lodge, but he testified that the date of this conversation was either December 12 or 13, 1974. Kaye also testified that he had approved this raise before the Union's recognition request on December 11, 1974. In the light of Kaye's memorandum granting Bellantomo's raise which is dated December 18, 1974, and which made the raise retroactive to December 11, 1974, 1 place no credence in Kaye's testimony that he approved this raise prior to the date of the recognition demand. I note in this regard that the Respondent's brief now admits that Bellantonio's raise was granted on December 18, 1974. Moreover, as previously indicated, I regard Kaye's testimony as frequently evasive and unreliable, and occasionally self-contradictory, and I therefore credit his version of this conversation only to the extent that it accords with that of Bellantonio credited above or constitutes an admission against interest. 29 N.L.R B. v. Exchange Parts Co., supra Union was defeated at the Board election, asked Kaye on several occasions for a raise. Kaye at first told them that because unfair labor practice charges had been filed by the Union against Respondent, he "could not put through an increase . . . immediately until this was resolved." How- ever, after consultation with counsel, Kaye later approved a 25-cent-an-hour raise for both Bellantomo and May on April 2, 1975. As previously noted, Bellantonio had received a 50-cent raise only 3-1/2 months earlier on December 18, 1975, and May had received one on July 10, 1974. Respondent offered no evidence as to why these employees were either entitled to or given the additional raises on April 2, 1975. There is no evidence that these raises were required or imperative while the objections to the conduct of the election were pending resolution and the possibility of a rerun election existed. I conclude from the foregoing that the Respondent granted these raises to Bellantonio and May in fulfillment of its unlawful preelec- tion promise to the unit employees to correct their inade- quate wage scale if the Union was defeated. I therefore find that Respondent thereby further violated Section 8(a)(1) of the Act 32 As found above, during his preelection meetings with the unit employees, Kaye subtly and unlawfully also promised them that if the Union was defeated at the Board election, a new personnel policy for unrepresented employees which contained very good benefits would be applied to them. At that time, Castiglia, the social service employee, was the only employee in the unit who had Blue Cross-Blue Shield coverage provided and paid for by Respondent. The new personnel policy to which Kaye referred in his meetings with the unit employees admittedly was adopted by Respondent during the pendency of the Union's represen- tation petition. It was put into effect on January 2, 1975, for all Respondent's unrepresented employees with the excep- tion of those in the unit for which the Union sought recognition. The new personnel policies provided new and increased fringe benefits to the employees to whom it applied. It provided, inter alia, an additional paid holiday on the employee's birthday, one more personal day off each year, extra pay (time and a half) when an employee is required to work on a holiday and another day off for the holiday which was missed, an extra day of vacation if a holiday occurs during an employee's vacation, 2 additional days of paid sick leave each year and earlier eligibility for paid sick leave, a new paid leave of absence for marriage, paternity, and bereavement, a new major medical health insurance plan, Blue Cross-Blue Shield coverage paid for 30 On redirect examination, Kaye attempted to repudiate the foregoing admission, and he denied that "any wage increase that would have been granted in the normal course of business [was ] delayed during the election campaign." I place no credence in Kaye's said denial because contrary thereto, in Kaye's affidavit given to a Board agent, Kaye admitted that he had withheld pay raises from Faust and Birkbeck, two of the recreation aides, inter aha, because, "I decided to hold [up ] increases with the advent of the Union organizing drive." 31 Florida Steel Corporation, 220 NLRB 1201 (1975) and the cases cited in fn. 10; National Utility Products Company, 220 NLRB 64 (1975). 32 Westminster Community Hospital, Inc., 221 NLRB 185 (1975). In the light of this conclusion, I deem it unnecessary to also determine whether the raises given to other unit employees shortly after the election further violated the Act. SMITHTOWN NURSING HOME by Respondent for all unrepresented employees, and a new combination pension and profit-sharing plan.33 After the Union's defeat at the Board election, Respondent provided these new fringe benefits to the unit employees. There is no evidence that the revision of Respondent's personnel policies was required either to maintain operations or the retention of personnel. It is therefore quite apparent in the context of Respondent's vigorous campaign to defeat the Union at the Board election that, by applying the new policies and increased fringe benefits to the unit employees while the Union's objections to the conduct of the election were pending resolution and the possibility of a rerun election existed, Respondent was merely rewarding the said employees for defeating the Union at the election and fulfilling the unlawful promise which Kaye made to the employees prior to the election. Accordingly, I find that Respondent thereby further violated Section 8(a)(1) of the ACt.34 E. The Refusal To Bargain With the Union As found above, on December 11, 1974, when the Union demanded recognition as the representative of the recre- ation aides and the social service employee, it represented a majority of 8 of the 11 employees in the said unit which admittedly is appropriate for the purposes of collective bargaining. Respondent then knew that the Union repre- sented a majority of the employees in the said unit for seven of the employees had accompanied Union Organizer Du Breuil when she made her two requests for recognition. Notwithstanding that knowledge, Respondent rejected the Union's requests for recognition on the basis of a professed doubt of the Union's majority status, it suggested to the Union that it should utilize the Board's procedures, and it then embarked on a determined, vigorous campaign to dissipate and destroy the Union's majority status prior to a Board election. As found above, coincident with the commencement of the Union's organizing campaign, Re- spondent gave 5 of the 11 employees in the appropriate unit unusually large wage increases for the purpose of inducing employees to withdraw their support of the Union. In addition, in furtherance of its objective of destroying the Union's majority status, Respondent thereafter conducted a series of six captive audience meetings with the unit employees during the course of which Respondent engaged in numerous violations of Section 8(a)(1) of the Act. During the said meetings, Administrator Kaye solicited employees to voice their grievances and promised to resolve them, he admitted that the employees' wage rates were too low and promised to review and increase them "when the [Union] matter was resolved," he promised to apply a new person- nel policy to the unit employees which contained many new and improved benefits if the Union was defeated at the Board election, he agreed to consider a contract directly with the unit employees without the Union and he offered to have Respondent's attorney draft the contract, he in effect threatened that if the Union won the election it would 33 The Respondent's prior personnel policy did not provide for either a pension or profit-sharing. 34 Westminster Community Hospital, Inc, supra. 35 N. L. R. B. v. Gissel Packing Co., Inc., 395 U.S. 575 (1969). 36 Linden Lumber Division, Summer & Co v. N.LR.B., 419 U.S. 301 (1974). 31 be an exercise in futility on the part of the employees because Respondent would not, as required by the Act, negotiate expeditiously and in good faith with a view to reaching prompt agreement, and he further threatened that if the employees struck in protest over the prolonged negotiations, they would be permanently replaced and would not get their jobs back when the strike ended. The foregoing conduct of Respondent quite evidently achieved its intended objective, for at the Board election the Union received only 4 of the 11 votes cast. It is thus obvious that at least four of the employees who signed applications for membership in the Union and authorizations for the Union to represent them voted against the Union at the election. As found above, after the Board election Respondent continued to make certain that in the event of a rerun election the employees would again "vote for manage- ment." Thus, notwithstanding the pendency of the Union's objections to the conduct of the election and the possibility that a rerun election might result therefrom, Respondent thereafter continued to violate Section 8(ax1) of the Act by rewarding several unit employees with the wage increases promised prior to the election, and by applying to all of them the additional and improved fringe benefits which Kaye had promised in his captive audience meetings with the employees. Respondent's foregoing extensive, pervasive, and unlaw- ful conduct has not only undermined and destroyed the Union's majority support which it enjoyed when recogni- tion was requested, but its lingering, coercive, and restrain- ing effects has also made the possibility of a fair rerun election virtually impossible. Under these circumstances, the authorization cards signed by the unit employees are now the most reliable measure of their desires on the issue of representation by the Union, and the policies of the Act require that Respondent be ordered to bargain with the Union as the exclusive representative of the unit employ- ees.35 As the Supreme Court has held, an employer has a right to a Board election so long as he does not impede the election process 36 However, when he so obstructs the process, he forfeits his right to an election and must bargain with the Union on the basis of other clear indications of the employees' desires, and his bargaining obligation com- mences as of the time that he embarked on a clear course of unlawful conduct or engaged in sufficient unfair labor practices which undermine the Union's majority status and subverts the Board's election process.37 In the instant case, Respondent embarked on its cam- paign to destroy the Union's support among the unit employees on December 10, 1974, when it gave substantial and unusually large increases to several of the unit employees to induce them to withdraw their support from the Union. However, inasmuch as the Union's recognition demand was not made until December 11, 1974, I conclude that Respondent should be required to recognize and bargain with the Union as of December 11, 1974.38 I therefore find that as of that date, Respondent has engaged in a refusal to bargain with the representative of his 37 Trading Port, Inc., 219 NLRB 298 (1975), Baker Machine & Gear, Inc, 220 NLRB 194(1975). 38 Trading Port, Inc., supra. 32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees in a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act, and has engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. IV. REPORT AND RECOMMENDATION ON THE UNION'S OBJECTIONS TO THE ELECTION IN CASE 29-RC-2860 As previously noted, on August 25, 1975, the Regional Director for Region 29 of the Board issued an order consolidating Case 29-CA-4252 with Case 29-RC-2860, and he therein referred to me for hearing, ruling and resolution the Union's objections to the conduct of the Board election which occurred on February 28, 1975. The objections thus referred to me were as follows: 2. On or about February 20, 1975 the Employer promised its employees individual contracts and in- creases in wages and benefits if they opposed District 1199 in the election . Such promises constituted an interference with the free exercise of the employees' rights under Section 7 of the Act. 4. On or about December 17, 1974 the Employer granted wage increases to three employees in order to discourage their membership in a labor organization. I have found above that during the six captive audience meetings which Respondent conducted for the purpose of inducing the recreation aides and the social service employ- ee "to vote for management," Administrator Kaye solicited and promised to resolve employee grievances , promised to increase the admittedly low wage rates of these employees, promised to give them new and improved fringe benefits, and agreed to consider a contract directly with the said employees without the Union, if the Union was defeated at the Board election. I therefore find merit in the Union's Objection 2 to the conduct of the election. I have also found above that commencing with December 10, 1974, and thereafter before the Board election on February 28, 1975, Respondent gave substantial and unusually large increases to 5 of the I I employees in the appropriate unit for which the Union sought recognition, for the purpose of discourag- ing union membership and support. I therefore also fmd merit in the Union's Objection 4. I accordingly recommend that the election which was held on February 28, 1975, be set aside. In Case 29-CA-4252, I have found above that, coinci- dent with the Union's organizational campaign , Respon- dent engaged in extensive and pervasive unfair labor practices to undermine and dissipate the Union's majority status among the unit employees , and as noted, infra, I recommend the issuance of an order requiring Respondent to recognize and bargain with the Union as the exclusive bargaining representative of the employees in the appropri- ate unit found above. In view of the said findings and recommended Order in Case 29-CA-4252, I further recom- mend that Case 29-RC-2860 be remanded to the Board for dismissal. V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations of Respondent described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. VI. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I will recommend that he cease and desist therefrom and take certain affirmative action de- signed to effectuate the policies of the Act. In the light of Respondent's extensive and pervasive unfair labor practices which were calculated to and have destroyed the Union's previously enjoyed majority status, and since I am persuaded that the application of traditional remedies for the said unfair labor practices cannot elimi- nate the lingering and restraining effects thereof and make the holding of a fair and reliable rerun election virtually impossible, I regard the employees' signed authorization cards as a more reliable measure of their representation desires. I will therefore recommend the issuance of an order requiring the Respondent to recognize and bargain with the Union as the exclusive collective-bargaining representative of the appropriate unit of recreation aides and the social service employee.39 Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent Herbert Kallen d/b/a Smithtown Nurs- ing Home, Smithtown Senior Home, and Smithtown Lodge, is an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. District 1199, National Union of Hospital and Health Care Employees, Retail, Wholesale and Depart- ment Store Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By soliciting and promising to resolve employees' grievances and by promising and granting wage increases, all for the purpose of undermining and dissipating employ- ees' support of the above-named Union, by withholding wage increases from employees because of the pendency of the Union's organizing campaign, by agreeing to consider a contract directly with employees without the Union and to supply an attorney to draft the said contract, and by threatening employees that if the Union won the election, it would not negotiate in good faith with a view of reaching prompt agreement and would permanently replace them if they struck in protest over the prolonged negotiations, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 39 N.L.R B v. Gissel Packing Co., supra; Trading Port, Inc, supra; Westminster Community Hospital, Inc, supra SMITHTOWN NURSING HOME 33 4. The following employees constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All recreation aides and the social service employee employed by the Respondent at his Smithtown, New York, facilities, excluding all other employees, guards, watchmen and supervisors as defined by the Act. 5. On December 11, 1974, and at all other times material herein, the above-named Union represented a majority of the employees in the aforesaid unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. 6. By refusing on and after December 11, 1974, to recognize and bargain with the above-named Union as the representative of the employees in the aforesaid unit, and by engaging in the conduct described in Conclusion of Law 3 above, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this case, I hereby issue the following recommended: ORDER 40 Respondent Herbert Kallen, d/b/a Smithtown Nursing Home, Smithtown Senior Home, and Smithtown Lodge, his agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in or support of District 1199, National Union of Hospital and Health Care Em- ployees, Retail, Wholesale and Department Store Union, AFL-CIO, or any other labor organization, by soliciting and promising to resolve employee grievances, by promis- ing and granting wage increases and other benefits, and by offering to contract directly with the employees. (b) Threatening employees with a refusal to bargain in good faith with the above-named or any other labor organization, and with any other reprisals, to discourage union membership and support. (c) Withholding wage increases from employees because of the pendency of union organizational activities. (d) Refusing to recognize and bargain with District 1199, National Union of Hospital and Health Care Employees, Retail, Wholesale and Department Store Union, AFL- CIO, as the exclusive collective-bargaining representative of the employees in the appropriate unit described below. The appropriate unit is: All recreation aides and the social service employee employed by the Respondent at his Smithtown, New York, facilities, excluding all other employees, guards, watchmen and supervisors as defined by the Act. (e) In any other manner interfering with, restraining, or coercing employees in the exercise of their right to self- organization, to form labor organizations, to join or assist District 1199, National Union of Hospital and Health Care Employees, Retail, Wholesale and Department Store Union, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from engaging in such activities, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized by Section 8(a)(3) of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Upon request, bargain collectively with District 1199,' National Union of Hospital and Health Care Employees, Retail, Wholesale and Department Store Union, AFL- CIO, as the exclusive collective-bargaining representative of the employees in the appropriate unit described above, and if an understanding is reached, embody such under- standing in a signed agreement. (b) Post at its three facilities located in Smithtown, New York, copies of the notice marked "Appendix." 41 Copies of the said notice, on forms provided by the Regional Director for Region 29, after being duly signed by Respondent, shall be posted by him for 60 consecutive days thereafter, in all conspicuous places, where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by Respondent to insure that the said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 29 in writing within 20 days from the date of this Order, what steps have been taken to comply herewith. 4U 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. 41 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 " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government I hereby notify my employees that: I WILL NOT refuse to recognize or bargain with District 1199, National Union of Hospital and Health Care Employees, Retail, Wholesale and Department Store Union, AFL-CIO, as the exclusive representative of the employees in the bargaining unit described below. I WILL NOT discourage membership in or support of the said District 1199, or any other labor organization, by soliciting and promising to resolve employee griev- ances, by promising and granting wage increases, or by 4 DECISIONS OF NATIONAL LABOR RELATIONS 34 offering to contract directly with my employees. I WILL NOT threaten employees with a refusal to bargain in good faith with the above-named or any other labor organization, or with any other reprisals to discourage union membership and support. I WILL NOT withhold wage increases from employees because of the pendency of union organizational activities. I WILL NOT in any other manner interfere with, restrain, or coerce my employees in the exercise of rights guaranteed them by Section 7 of the National Labor Relations Act. I WILL, upon request, bargain collectively with the said District 1199, as the exclusive bargaining represen- tative of all the employees in the bargaining unit described below with respect to rates of pay, wages, BOARD hours of employment, and other conditions of employ- ment, and, if an understanding is reached, embody such understanding in a written, signed agreement. The bargaining unit is: All recreation aides and the social service employ- ee employed by me at my Smithtown, New York, facilities, excluding all other employees, guards, watchmen and supervisors as defined by the National Labor Relations Act. HERBERT KALLEN D/B/A SMITHTOWN NURSING HOME, SMITHTOWN SENIOR HOME AND SMITHTOWN LODGE