Royal Manor Convalescent Hospital

ROYAL MANOR CONVALESCENT HOSPITAL DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 322 NLRB No. 56 Royal Manor Convalescent Hospital, Inc. and Service Employees Union, Local No. 22, Service Employees International Union, AFL-CIO. Cases 20- CA-26278, 20-CA-26332, and 20-RC-17051 OCTOBER 17, 1996 DECISION AND ORDER BY CHAIRMAN GOULD AND MEMBERS BROWNING AND FOX This case presents issues involving alleged violations of Section 8(a)(1) and (3) of the Act, election misconduct, and the propriety of a remedial bargaining order.\1\ The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,\2\ and conclusions,\3\ and to adopt the recommended Order as modified.\4\ --------------------------------------------------------------------------- \1\On March 26, 1996, Administrative Law Judge Burton Litvack issued the attached decision. The General Counsel and the Respondent each filed exceptions and a supporting brief. The Charging Party joined in the General Counsel's exceptions. The General Counsel filed an answering brief to the Respondent's exceptions. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. \2\The Respondent and the General Counsel have excepted to some of the judge's credibility findings. The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. \3\We find it unnecessary to pass on the General Counsel's exception to the judge's failure to find that Andre Paige's inquiry to Faye Wilkerson about her union sympathies violated Sec. 8(a)(1). This violation, if found, would be cumulative and would not materially affect the remedy. \4\We shall modify the judge's recommended Order in accordance with our decision in Indian Hills Care Center, 321 NLRB No. 23 (May 8, 1996). We shall also substitute a notice that correctly identifies the Respondent and conforms the provisions of the notice to the recommended Order. --------------------------------------------------------------------------- The General Counsel has excepted to the judge's recommendation to dismiss the allegation that the Respondent violated Section 8(a)(1) of the Act by granting a wage increase prior to the election. Although we acknowledge the suspicious nature of the wage increase's scope and timing, we emphasize that, based on the judge's credited testimony: the Respondent had a legitimate and timely business need for the wage increases in order to attract and retain more certified nursing assistants (CNA's), thereby reducing excessive overtime expenses in a time of financial stress; the Respondent's officials made their decision to grant the wage increase prior to the filing of the representation petition; and, the decision to increase the wages of all CNAs, not just those who were underpaid according to a survey of area hospitals, was a reasonable means to implement the increase, because it gave equitable treatment to employees performing the same work in the same classification. As previously stated, there is no basis for overturning the judge's credibility resolutions in this regard. Consequently, the totality of circumstances shown by credited evidence demonstrates a business necessity for the wage increase warranting dismissal of the 8(a)(1) allegation. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Respondent, Royal Manor Convalescent Hospital, Inc., Sacramento, California, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraphs 2(a) and (b). ``(a) Within 14 days after service by the Region, post at its facility in Sacramento, California, copies of the attached notice marked `Appendix.'\51\ Copies of the notice, on forms provided by the Regional Director for Region 20, after being signed by the Respondent's authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since August 26, 1994. ``(b) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply.'' 2. Substitute the attached notice for that of the administrative law judge. It is further ordered that the election conducted in Case 20-RC- 17051 is set aside and that Case 20-RC-17051 is severed from this proceeding and remanded to the Regional Director for Region 20 for the purpose of conducting a second election among employees in the appropriate unit. Dated, Washington, D.C. October 17, 1996 ____________________________________ William B. Gould IV, Chairman ____________________________________ Margaret A. Browning, Member ____________________________________ Sarah M. Fox, Member (seal) National Labor Relations Board APPENDIX Notice To Employees Posted by Order of the National Labor Relations Board An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. We will not interrogate our employees with regard to their union membership, sympathies, or activities or the union membership, sympathies, or activities of their fellow employees. We will not create in the minds of our employees the impression that we are engaging in surveillance of their union activities. We will not inform our employees that, despite the presence of a union as their bargaining representative, it would not be able to save their jobs, thereby conveying to our employees that it would be futile to select a union as their bargaining representative. We will not solicit our employees to interrogate their fellow employees, regarding their union sympathies and activities, on our behalf. We will not solicit grievances from our employees, thereby impliedly promising to correct them. We will not in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. Royal Manor Convalescent Hospital, Inc. Lucile L. Rosen and Shelley Brenner, Esqs., for the General Counsel. David A. Laporiere, Esq. (Hubert, Shanley & Cohen), of Sacramento, California, for the Respondent Employer. Paul Supton, Esq. (Van Bourg, Weinberg, Roger & Rosenfeld), of Oakland, California, for the Charging Party-Petitioner. DECISION STATEMENT OF THE CASE Burton Litvack, Administrative Law Judge. The original and the first amended unfair labor practice charges in Case 20-CA-26278 were filed by Service Employees Union, Local No. 12, Service Employees International Union, AFL-CIO (the Union), on August 26 and November 29, 1994, respectively, and the unfair labor practice charge in Case 20-CA-26332 was filed by the Union on September 21, 1994. Based upon the unfair labor practice charges, on January 27, 1995, the Acting Regional Director of Region 20 of the National Labor Relations Board (the Board) issued an amended consolidated complaint alleging that Royal Manor Convalescent Hospital, Inc. (Respondent)\1\ engaged in conduct, violative of Section 8(a)(1) and (3) of the National Labor Relations Act (the Act), and that the appropriate remedy for the alleged unfair labor practices is the issuance an order, requiring Respondent to bargain with the Union. Respondent timely filed an answer, denying the commission of any of the alleged unfair labor practices. Subsequently, on April 12, 1995, the Acting Regional Director of Region 20 issued a report of objections in Case 20-RC-17051, ordering that the matter be consolidated with the above-described unfair labor practice cases for trial. Thereafter, pursuant to a notice of hearing, these consolidated matters came to trial before me on June 1 and 2, 1995, in Sacramento, California. At the trial, all parties were afforded the opportunity to examine and to cross-examine all witnesses, to offer into the record all relevant documentary evidence, to argue their legal positions orally, and to file posthearing briefs. The documents were filed by counsel for the General Counsel and by counsel for Respondent and these were carefully considered by me. Accordingly, based upon the entire record herein, including the posthearing briefs and my observation of the respective testimonial demeanor of the several witnesses, I make the following --------------------------------------------------------------------------- \1\Although the parties never moved to amend these proceedings' formal papers to reflect the correct name of Respondent, its corporate president, Bryan Jennings, testified that the correct name of Respondent is Royal Manor Health Care, Inc. d/b/a Royal Manor Convalescent Hospital. Accordingly, herein, when referring to the corporation, I shall call it Respondent and, when referring to Royal Manor Convalescent Hospital itself, I shall term it, Royal Manor. --------------------------------------------------------------------------- FINDINGS OF FACT I. JURISDICTION Respondent is a California corporation with an office and place of business in Sacramento, California, the Royal Manor, at which it is engaged in the operation of a convalescent hospital. During the 12-month period ending July 1994,\2\ in the normal course and conduct of its above-described business operations, Respondent derived gross revenues in excess of $250,000. Further, Respondent admits that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. --------------------------------------------------------------------------- \2\Unless otherwise stated, all events herein occurred during 1994. --------------------------------------------------------------------------- II. LABOR ORGANIZATION Respondent admits that the Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ISSUES In his amended consolidated complaint, the General Counsel alleges that Respondent engaged in several acts and conduct, violative of the Act. Specifically, he alleges that Respondent violated Section 8(a)(1) and (3) of the Act by terminating employee, Eunice Gates; that Respondent violated Section 8(a)(1) of the Act by granting its employees a raise in pay during the time period between the Union's filing of a petition for a representation election and the Board-conducted representation election; and that, through various management officials, Respondent violated Section 8(a)(1) of the Act by interrogating its employees regarding their union activities and sympathies and the union activities and sympathies of their fellow employees, creating amongst its employees the impression that their union activities were under surveillance, informing employees that it would be futile for them to select the Union as their representative for purposes of collective- bargaining, threatening employees with discharge if they selected the Union as their representative for purposes of collective bargaining, and soliciting employees to tell their fellow employees to vote against the Union. Finally, given their serious nature and breadth, the General Counsel alleges that requiring Respondent to bargain with the Union is the most appropriate remedy for its unfair labor practices. Contrary to the General Counsel, Respondent denies the commission of any unfair labor practices and, while admitting that it did, in fact, implement a raise in pay for certain of its employees during the critical period prior to the representation election, argues that such was planned prior to the filing of the representation election petition by the Union. Finally, assuming that it is found to have committed unfair labor practices herein, Respondent asserts that standard Board remedies are sufficient and that an extraordinary bargaining order remedy is unnecessary. IV. THE ALLEGED UNFAIR LABOR PRACTICES A. THE FACTS Respondent, a State of California corporation, is engaged in business in the operation of Royal Manor Convalescent Hospital, which is located in Sacramento, California, and which is a 49-bed skilled nursing facility offering 24-hour nursing care to patients who are required to have such attention, providing them with meals and social services, and ensuring that the patients' medications are administered and treatments are done. The record establishes that Bryan Jennings is the president of the corporation; that Judy Jenson is the administrator of Royal Manor and responsible for its day-to-day operations; that, since August 1, Vikki Gagnon has been the director of nurses for Royal Manor;\3\ and that Andre Paige is the administrative assistant to Jenson, performing office manager and clerical operations for the Royal Manor.\4\ The record further establishes that, as of July, at the Royal Manor, Respondent employed 33 individuals in various job classifications including certified nursing assistant,\5\ restorative nurse aide, cook, dietary aide, activity assistant, laundry aide, housekeeping, medical records director, and social services director. --------------------------------------------------------------------------- \3\Prior to Gagnon, Alenia Dial was the director of nurses. \4\Respondent admits that Jennings, Jenson, Gagnon, and Paige are supervisors within the meaning of Section 2(11). \5\Approximately 19 of the employees are in this job classification. --------------------------------------------------------------------------- Alleged discriminatee, Eunice Gates, testified that, as the social services director at the Royal Manor, she was responsible for taking care of the patients' needs including making doctor appointments and arranging transportation to doctors' offices, calling patients' families, and purchasing clothing, food, and other supplies for the patients. According to Gates, who had been a member of the Union from 1977 through 1985 during her employment at another Sacramento-area convalescent hospital, at which the employees were represented by the Union,\6\ while not the instigator of the union movement amongst Respondent's employees at the Royal Manor, commencing in the spring, she was involved in the discussions, concerning whether to seek representation by the Union,\7\ and volunteered to approach officials of the Union in order to inform them of the employees' interest in organizing and to obtain union authorization cards. Gates spoke to the Union's secretary/treasurer and was given 35 authorization cards, ``and I took some to the [Royal Manor]. I spoke to the employees, one on one, and told them I had the cards, and if they were interested, they want to fill them out, and we could meet and start discussing.'' As to what Gates said regarding the purpose of the authorization cards, all of which bear the heading, ``I hereby authorize SEIU Local 22, AFL-CIO to represent me and, in my behalf, to negotiate and conclude any and all agreements as to wages, hours and other conditions of employment,'' she admitted telling employees that the cards were to be signed ``if they wanted to get a union'' and that ``. . . filling in the card didn't mean it was going to automatically give them a union'' and doing so ``. . . could give them their right to vote for a union.'' The record reveals that, in all, during the period March 3 through June 30, Gates distributed to and collected from employees 19 signed authorization cards,\8\ executed her own authorization card, returned these same 19 authorization cards to the Union, and witnessed another employee, Cynthia Harris, sign an authorization card at a meeting of the Royal Manor employees with union officials. After obtaining the 21 executed authorization cards, on July 7, the Union filed a representation election petition in Case 20-CA-17051, seeking to be selected as the collective-bargaining representative of certain of Respondent's employees at the Royal Manor.\9\ The record reveals that Gates, was inadvertently listed in the petition as the ``employer representative to contact;'' that, after a representation case hearing,\10\ on August 19, the Regional Director of Region 20 issued a decision and direction of election in which he set forth the scope of the unit appropriate for bargaining as encompassing all employees in the above-described job classifications, including social services director;\11\ and that, Respondent did not request review of the Regional Director's decision and direction of election and the representation election was eventually scheduled to be conducted on September 16 by the Board. --------------------------------------------------------------------------- \6\Gates testified that, at this facility, Countryside Convalescent Hospital, she became acquainted with Vikki Gagnon, who was a charge nurse there. \7\According to Gates, ``different groups'' of employees would discuss the situation in the employees' breakroom. She estimated that approximately 25 to 30 employees participated in these discussions. \8\According to Gates, she collected and returned to the union authorization cards from 15 employees (Eddie Milton, Alice Gavin, Dorothy Haddox, Sandra Joe, Beverly Hopkins, Suwaran Kaur, Mohni Kumar, Roshmi Kumar, Barbara McIntosh, Christine Ramirez, Joyce Scott, Dora Simmons, John Wesley, Robyn Taylor, and Faye Wilkerson), each of whom signed a card in her presence. In addition, Gates distributed authorization cards to four employees (Jovita Acosta, Ruby Johnson, Joseph Judon, and Adrienna Lee), who returned their signed cards to her. \9\The petition described the bargaining unit as including only certified nursing assistants, dietary aides, laundry employees, and housekeeping employees. \10\At the trial, counsel for Respondent conceded that, at the representation case hearing, Respondent stipulated to the scope of the bargaining unit except for the social services director. \11\The Regional Director concluded that the social services director, Eunice Gates, was neither a supervisor nor a managerial employee. --------------------------------------------------------------------------- Respondent admitted that it announced a wage increase for all its certified nursing assistants\12\ at the Royal Manor in mid-July and that such became effective on or about August 1, and Judy Jenson, the Royal Manor administrator,\13\ conceded that a raise in pay would have been unexpected by employees in that job classification ``because the staff didn't know that I was out . . . working on trying to get an increase. . . .'' Initially, the record discloses that Respondent implemented this wage increase notwithstanding anticipated severe budget problems in the near future. In this regard, Jenson, whose job duties include responsibility for ensuring that Royal Manor operates within its established budget, testified that, during 1994, day-to-day operating costs continually increased and that, in May, she had been advised, by Respondent's president, Bryan Jennings, that the anticipated 1994-1995 State of California budget would include no increase in the daily Medi- cal patient reimbursement rate for convalescent hospitals of the size of Royal Manor.\14\ This was of critical import to Respondent as most of its patients are unable to afford the cost of daily resident care at the Royal Manor and rely upon Medi-cal payments to cover most of this cost,\15\ and Respondent had come to depend upon a regular yearly increase in the reimbursement rate to help offset any increased expenditures.\16\ Nevertheless, Jenson and Jennings each testified that the pay raise for the Royal Manor's certified nursing assistants was required. According to the former, at approximately the same time in May she became aware of the lack of increase in the Medi-cal reimbursement rate, the director of nurses, Alenia Dial, informed her that the certified nursing assistant complement was down by three or four individuals; that she was experiencing difficulty in hiring new employees in that job classification; and that, as a result, certified nursing assistants were being required to work overtime in order to maintain proper staffing levels on all shifts.\17\ Jenson added that Dial\18\ explained the reason for Respondent's hiring difficulties was that certified nursing assistant applicants ``. . . didn't want to accept the pay rate that we were giving out.''\19\ --------------------------------------------------------------------------- \12\Employees in this job classification, according to Administrator Jenson, ``take care of the daily activities of living for the resident, assist them with those . . .,'' including dressing, feeding, grooming, relieving themselves, and bathing.'' \13\Jenson testified that she is also the administrator at Riverside Convalescent Hospital, another Sacramento area convalescent hospital, the operations of which, in some manner unclear from the record, are related those of Respondent, and that she divides her time between Riverside and Royal Manor, working 20 hours a week at the latter. \14\Although unclear in the record, the State of California's Medi- cal program appears to be the State's version of the Federal Medicare program and provides financial relief for individuals who are unable to pay for the cost of health care. Jennings corroborated Jenson, testifying that, in May, he became aware that the proposed State of California budget contained no Medi-cal reimbursement rate increase for the next fiscal year and that the lack of an increase would cause a financial strain on Respondent as the reimbursement rates ``. . . have always increased since I've been in business. There's always been a general increase.'' \15\The 1993 Medi-cal reimbursement rate had been $79.25 per day for each patient. \16\In fact, as enacted, the new state budget retained the previous Medi-cal $79.25 daily reimbursement amount for convalescent hospitals of the size of the Royal Manor. \17\Jenson added that these required ``double shifts'' worsened Respondent's existing budget problems. \18\Dial was not called as a witness by Respondent, and the latter's counsel failed to explain its failure to do so. \19\During cross-examination, Jenson testified that Dial could not find people to work at the low per diem rate. --------------------------------------------------------------------------- Thereafter, according to Jenson, she spoke to Jennings, who ``. . . suggested that I conduct a survey and call the other facilities in the area and find out how our [wage rate] compared to their wages'' for certified nursing assistants.\20\ Jenson testified that she conducted such a survey, contacting seven other skilled nursing convalescent hospitals in the Sacramento area, and discovered that Respondent's certified nursing assistant starting standard wage rate was 20 cents per hour higher than three, the same as two, and 25 cents per hour beneath the starting wage rate paid by two others but that Respondent's starting per diem wage rate was significantly lower than paid by six of the other convalescent hospitals. Jenson further testified that she informed Jennings of the result of her survey but that, given the Medical funding problem, he decided to wait before committing to anything. Jenson added that, ``towards the middle to the end of June,'' she told Jennings ``. . . that I was still having problems, we were still having trouble trying to attract a competent staff.'' Jennings replied ``. . . that he had also done a survey of his own and found that the results were very similar to what I had shared with him,'' and ``. . . he said that he thought we were going to have to have to go ahead and do an increase.'' Jenson then testified that, ``towards the end of June,'' at a meeting of the staff, an announcement was made that certified nursing assistants would receive a wage rate increase. However, upon examining Respondent's Exhibit 3, payroll sheets for July and August, Jenson changed her testimony, stating that ``the pay increase took effect the 1st of August. So, it must have been towards the middle of July that we had our meeting, telling the employees that were going to be getting the increase.'' Finally, on this point, Jenson stated that, notwithstanding that the problem was with the low per diem wage rate, all certified nursing assistants received a wage increase ``because . . . I just didn't feel like I wanted to punish the people that were on the non-per diem wage'' and that, after the wage increase, certified nursing assistants worked significantly reduced overtime. --------------------------------------------------------------------------- \20\Apparently, as do most convalescent hospitals, Respondent maintains two pay scales for certified nursing assistants. Some work for an hourly pay rate and receive benefits including paid holidays, paid vacations, and paid sick leave. Others are paid a so-called per diem rate of pay, which is higher than what the other certified nursing assistants receive, but receive no fringe benefits. As of July, regular certified nursing assistants were hired at a wage rate of $6 per hour and per diem certified nursing assistants were hired at a $6.25 per hour wage rate. The record is contradictory as to whether Respondent employed more regular or more per diem certified nursing assistants. Thus, during direct examination, Jenson testified, ``. . . the biggest portion of our CNA's were not on a per diem wage, which means they don't get benefits.'' However, she later testified during cross-examination that ``. . . most of our [certified nursing assistants] didn't elect to take benefits. They went with the per diem rate.'' --------------------------------------------------------------------------- Bryan Jennings corroborated Jenson with regard to the rationale for and to the timing of the decision to grant the wage rate increase for certified nursing assistants. According to him, he had a conversation with Jenson in May or June with the latter telling him ``they were having problems in staffing the facility, as far as nurses, and so I told Judy to do a survey . . . to find out what other facilities were paying. . . . She reported the survey results to me, and then I called up some other hospitals and verified her results were accurate.'' His survey, assertedly done in June, Respondent's Exhibit 9, reveals that he contacted three area convalescent hospitals in order to confirm Jenson's findings.\21\ Thereafter, in June, he again discussed the certified nursing assistants' wage rates with Jenson over the telephone, and ``the main discussion was between per diem rate and a rate . . . other than per diem rate. And figuring out what the difference should be . . . . The decision was to increase the CNA's and try to make it as equitable as possible . . . .''\22\ He added that the Royal Manor's other employees' wage rates remained the same as these were equal to or better than those paid by the other area convalescent hospitals. --------------------------------------------------------------------------- \21\During cross-examination, Jennings testified that he was concerned only with the hourly wage rates of certified nursing assistants and did not consider fringe benefit packages and that he assumed that Respondent's fringe benefits were comparable. \22\Jennings dated this decision as being reached in the third or fourth week of June with the raise to become effective on August 1. --------------------------------------------------------------------------- Mickey Noble, who worked for Respondent at the Royal Manor as its medical records clerk,\23\ testified that, on August 12, the day of the hearing, based upon issues raised by the Union's petition for a representation election, she was in Jenson's office using the photocopying machine and spoke to Jenson, who had just returned from the hearing. According to Noble, in the midst of their conversation, Jenson ``. . . asked me if I had heard about the Union and the people trying to get in, and I said, `Yes.' And she asked me what I would vote, and I told her I'd vote no.'' Jenson generally denied ever having interrogated employees about the Union but did not specifically deny this conversation. Further, although she could not remember the date, Noble was able to recall a subsequent conversation with Jenson during which the former raised the subject of the Union and ``I recall [Jenson] saying that Eunice started it.'' Noble also testified that, approximately 2 weeks before Eunice Gates was laid off by Respondent on August 23, Jenson approached her and asked if she could handle the social services director job duties, and ``I said, no, I didn't think I would be able to.'' --------------------------------------------------------------------------- \23\This job entails auditing patients' health records, ensuring that nurses and the certified nursing assistants have done their patient charting correctly and have documented each shift that they have worked, performing admissions and discharges, and setting up and breaking down patient charts. Respondent contends that, in order to perform this job, the medical records clerk must have training and experience for it, and, during her cross-examination, Mickey Noble not only confirmed this but also agreed that it would be very difficult for someone with no training in medical records to work in that position. --------------------------------------------------------------------------- Eunice Gates, who worked a 4-1/2-hour shift, 5 days a week, testified that, on August 23, upon being informed by Vikki Gagnon that Jenson wanted to speak to her before she went home, she went to Jenson's office and found Jenson and Andre Paige there. Gates asked why Jenson wanted to speak to her, and the former ``. . . said she was sorry that she had to lay me off because of empty beds, and she was giving me my vacation pay along with my regular pay check and that she was sorry she had to do it, but . . . the kind of business it is, empty beds, but she had her orders from the office, so she had to do that.'' Judy Jenson failed to deny this conversation. With regard to the layoff of the alleged discriminatee, Vikki Gagnon conceded that, on August 23, subsequent to being informed of her layoff, Gates had a conversation with her in the breakroom and that ``. . . I told her that I had heard what had happened, and I wished her good luck in finding a new job. She said she'd be okay because the Union had already offered her another position.'' Certified Nursing Assistant Faye Wilkerson, who overheard this exchange, testified that, later in the day, she overheard a conversation between Jenson and Gagnon by the nurse's station in the front of the Royal Manor, with Jenson saying ``. . . `See, Vikki, I told you Eunice worked for the Union.''\24\ Also, in the last week of August, Jenson once again offered Mickey Noble the combined social services/ medical records position and informed her that Respondent was terminating Gates. As an inducement, Jenson offered Noble a $1-per-hour raise, and the latter agreed to work the combined jobs.\25\ Further, Mickey Noble testified that, one day during that same week, Bryan Jennings visited the Royal Manor and entered her office.\26\ ``He just said that he understood from what people were telling him that Eunice was a lot of trouble, and she was the cause of the Union and wanting the employees to be union, and he thanked me for doing the social services job. And I really didn't say anything.''\27\ Finally, the record discloses that, subsequent to the termination of Gates, Respondent hired the following employees at the Royal Manor: five certified nursing assistants, one licensed vocational nurse, one registered nurse, one maintenance supervisor, and an activities director, who also performs the social services work. --------------------------------------------------------------------------- \24\Jenson denied making such a comment. Mickey Noble testified that, on the day of the election, she overheard Gagnon make a similar comment to Jenson as they observed Gates leave Royal Manor, accompanied by a Board agent and a representative of the Union. Gagnon could not recall making such a comment. \25\This meant approximately $40 more per week for Noble, reducing, by almost half, any financial saving realized by the layoff of Gates, who earned $5 per hour for no more than 22 hours a week. Noble eventually tired of doing the combined social services/medical records job for Respondent, was able to find another job, and, on October 4, quit her job with Respondent, declining Jenson's offer to continue just in the medical records job. Jenson testified that, thereafter, Respondent hired an individual to perform only the medical records work as ``. . . the person that I hired . . . I didn't feel was qualified to do social services.'' Conveniently, Royal Manor's activities director also quit her job at that time, and, to fill the position, Jenson advertised for an individual, who could perform that work and who was experienced in social services work. She admitted that she never offered the job to Eunice Gates. \26\She described such an event as entirely out of the ordinary as he had previously never come into her office. \27\Jennings, who stated that he visited the Royal Manor for 2 days prior to the election and spoke to approximately 14 employees and that, when he does ``rounds'' at any of his facilities, he tries to speak to each employee on a personal basis, admitted going into Noble's office, thanking her ``for doing such a good job,'' and asking ``. . . was there anything I could do to make things better or anything that needs to be improved at the facility;'' however, ``I don't remember talking to her about Eunice Gates.'' --------------------------------------------------------------------------- Respondent's defense to the amended consolidated complaint allegation, that Gates was terminated in violation of Section 8(a)(1) and (3) of the Act, is that such was incidental to Respondent's effort, during the spring and summer of 1994, to cut costs due to the lack of an increase in the Medi-cal daily patient reimbursement rate in the 1994- 1995 State of California budget and a concomitant significant decline in the Royal Manor's daily patient census. In these regards, Jenson testified that, given the pay raise for the certified nursing assistants and the State of California's failure to raise the Medi-cal daily patient reimbursement rate for convalescent hospitals of Royal Manor's size, her budgetary mandate was to reduce expenses as much as possible.\28\ Initially, she sought to reduce the cost of supplies by ``. . . trying to find a cheaper vendor that would still give us the same quality that we needed for our supplies.'' Also, ``. . . we . . . looked into how we could decrease the payroll and check the staff.'' As to this, she testified, at the end of July, Riverside Convalescent Hospital's director of staff development, a full-time position, quit her job, and Jenson decided to combine the positions at Riverside and Royal Manor, enabling her to make the director of staff development position at Royal Manor a half-time position and to reduce the salary paid by Respondent to the individual in that job classification by half--a saving of $500 per pay period. Other cost- savings personnel decisions, reached by Jenson during this time period, included not replacing a laundry supervisor who quit and combining the position with a housekeeping supervisory position and eliminating a 4- hour afternoon certified nursing assistant shift, the hours of which had been shared by individuals in that job classification. --------------------------------------------------------------------------- \28\This is not to say that Respondent eliminated all efforts to raise additional revenues. Thus, according to Jenson, the daily patient rate for private payers was increased by $5. Bryan Jennings testified that Respondent's cash flow problems are reflected on ``its cash flow sheets,'' which are kept by Jenson on a month-to-month basis. Respondent failed to offer such documents into the record in support of its economic defense. --------------------------------------------------------------------------- While implementing these cost-savings measures, according to Jenson, she observed, in August, that the daily patient census, or bed count, at the Royal Manor ``. . . went down, down, down. . . . It went down significantly.''\29\ On this point, Respondent has 49 available patient beds, and analysis of Respondent's Exhibits 4 and 7 reveals that, in June, the daily patient census was 48 on most days and never became lower than 46; that, in July, the daily patient census ranged between 47 (July 1 through 4) and 44 (July 24 and 25) with the bed count on most days being 45; that, in August, the daily patient census was either 44 or 45 with the bed count at the latter figure from August 1 through 13 and August 24 through 31; and that, in September, the daily patient census ranged between 47 and 42 with the bed count during the final 6 days ranging from 44 to 42. Confronted with these figures which do support an asserted precipitous decline in the daily patient census in August, Jenson averred that a change in the daily bed count of just one to three beds has a significant effect upon income and costs and is something about which to be concerned.\30\ The Royal Manor administrator testified that, with matters in the above posture in August and with Jennings pressuring her to further reduce costs by, among other things, cutting employees' hours of work, ``. . . the only thing we could think of was to eliminate . . . the social services person and put that with a full-time position,'' the medical records clerk, which combined job was offered to Mickey Noble.\31\ --------------------------------------------------------------------------- \29\Bryan Jennings testified that the daily patient census began going down in May or June; however, no records were offered to support his assertion, and Jenson failed to corroborate him on this point. \30\Gates testified that there were no more than ``maybe five'' empty beds on August 23; that, during her 3-1/2 years of employment at the Royal Manor, the daily patient census never dropped below 42; that the bed count normally was in the mid to upper 40's; and that no one had ever previously been laid off when the bed count dropped. Certified nursing assistant, Fay Wilkerson, testified that, she was surprised that Gates was laid off as ``. . . we had been down patients before, and they have never laid nobody off. . . .'' \31\The job of social services director was the only regular part- time position at Royal Manor. --------------------------------------------------------------------------- Respondent advanced several reasons for failing to offer the combined social services/medical records job to Eunice Gates. According to Jenson, her primary consideration was the alleged discriminatee's lack of training to perform the job. She testified, ``[Gates] couldn't do medical records . . . . She didn't have the training or the skills to do medical records.'' In this regard, Jenson stated that Gates did not have strong documentation and charting skills and pointed to an early August incident in which, after investigating a complaint by the family of a former patient regarding the patient's transfer to another convalescent hospital, State of California officials issued a ``statement of deficiencies'' to Respondent, which document, among other deficiencies, noted the absence of a documented discharge plan, the preparation of which was the responsibility of the social services director.\32\ Also, Jenson testified, she did not consider Gates for the new position as, in the fall of 1993, Gates temporarily assumed the additional duties of activities director and, when asked to take over the combined job on a permanent full-time basis, Gates said, ``I don't want a full-time position.''\33\ As Respondent's final reason for concluding that Gates would not be able to perform the new combined job as well as Noble, Jenson pointed to the undisputed fact that, unlike Noble, Gates neither possessed a driver's license nor owned a car. On this point, notwithstanding that there is no record evidence that Gates' lack of a driver's license or car was ever mentioned to her as a job performance problem and while conceding that Gates never requested her help, Jenson stated that ``. . . there were several times that [Gates] needed to perform an errand . . . for a resident that either myself or another staff member had to do because Eunice didn't have a vehicle.'' Jenson added that such placed a strain upon the staff as ``. . . it took time away from their work.'' Nevertheless, during her cross-examination, Jenson admitted that Respondent never told the alleged discriminatee that her job was in jeopardy because she did not have a car or a driver's license, and Gates denied that her lack of a driver's license ever caused a problem and stated that her practice was to purchase items for patients while on her way to and from work. --------------------------------------------------------------------------- \32\Analysis of the deficiencies report reveals that lack of a documented discharge plan is the final finding of the state investigators and not one upon which the investigators placed much emphasis. Thus, the report is critical of the Royal Manor staffs failure to develop a ``comprehensive care plan'' to meet the patient's medical, nursing, mental, and physiological needs; Royal Manor's apparent exclusion of the patient's family from the decision making process; and the lack of a clear plan to place the patient in another convalescent facility. Vikki Gagnon corroborated Jenson that Gates had failed to prepare a discharge plan for the patient and that such was Gates' responsibility. Thereafter, according to Gagnon, ``. . . I tried to make sure that Eunice was up on her charting.'' Gates recalled the state investigation and conceded being informed by Alenia Dial that there had been documentation ``deficiencies.'' During cross-examination, she conceded that she was responsible for documenting discharge plans and that the patient's file was incomplete in this regard. \33\During cross-examination, Gates denied that the combined activities director/social services director job had ever been offered to her on a full-time basis and stated that she would have accepted the combined job if it had been offered on such a basis. Finally, she stated that such was never stated as a reason for her layoff. --------------------------------------------------------------------------- Based upon the allegations of the amended consolidated complaint and the testimony of the various witnesses, several alleged unfair labor practices occurred during the two week period prior to the day of the election, September 16. There is no dispute that, early one morning, Certified Nursing Assistants Robyn Taylor and Faye Wilkerson had a conversation with Vikki Gagnon in the breakroom. According to Taylor, who placed the conversation as occurring 2 weeks before the election, she was speaking to Wilkerson and another employee, Dorothy Haddox, when Gagnon entered the room, sat down, and asked, ``What can the Union do for you?'' Haddox responded that the Union could help with medical benefits, and Gagnon replied, ``. . . that if we did get the Union in . . . they would still find a reason to fire us . . . and we wouldn't get unemployment.'' Taylor added that she departed at that point and heard nothing more, and she denied that Gagnon mentioned implementing a progressive discipline system for employees. Wilkerson, who recalled the conversation as occurring 2 or 3 days before the election and who conceded that she is a close friend of Gates, corroborated Taylor that she, Haddox, and Taylor were speaking in the breakroom when Gagnon entered and immediately asked ``. . . what the Union can do for us, and I told her it could pay for our medical . . . . because I know, because I have been in a union before.'' Wilkerson further recalled that, with regard to what the Union could or could not do for the employees, Gagnon said that ``[j]ust because you have a union in there, it doesn't mean that the union can save your job'' and that, with regard to whether she knew how to terminate people, ``she said she knew how to go by steps. She would have to go by steps . . .'' and ``[the Union] couldn't save your job.'' Gagnon agreed that such a conversation occurred, testifying that the three employees ``. . . asked me my opinion of the Union. . . . And basically what I remember saying was that I didn't feel that they protected their employees. I also made mention that I thought that union dues could be better spent for their Christmas.'' She added that the subject of progressive discipline arose as ``we were just talking,'' and ``. . . I told them my process of discipline and termination is exactly the same as the Union's.'' Faye Wilkerson testified that she had a conversation with Andre Paige, the Royal Manor's administrative assistant, on the Friday before the election. They were in the dining room, and ``he was telling me that Judy Jenson was looking for me . . . because she wanted to talk to me'' and ``it had something to do with the Union.'' Thereupon, Paige ``. . . asked me if I wanted the Union. I didn't answer it, though. I didn't say yes or no.''\34\ According to Wilkerson, on the following Monday, just before her break, she approached Jenson in a hallway and asked if the latter wanted to speak to her. Jenson asked ``. . . did I know anything about the Union, and I told her, `no' And she asked me if it was okay if [Bryan Jennings] talked to me, and I told her, `yes.'''\35\ Later in the same day, Wilkerson testified, while she was taking a break in a rear office, Jennings approached and asked if they could step outside the building. They walked outside by the kitchen, and Jennings began, asking ``. . . did I know anything about the Union. And I told him, `no.' And he said when he was in the hospital, he . . . got really sick hearing . . . they were trying to get the Union in there.'' Continuing, Jennings ``. . . wanted to know why we wanted the Union. . . . And he wanted to know if I could help him to keep the Union out of there'' by speaking to the other employees and finding out why they wanted a union. The subject of the conversation turned to the Royal Manor employees' benefits and, in particular, her wage rate. Wilkerson said she was earning $6.35 per hour and wanted at least $7 per hour, and ``he said that . . . I should have a raise coming up pretty soon.'' Although giving a different version, Jennings admitted that such a conversation occurred ``. . . in the back of the hospital, near the kitchen.'' According to Jennings, ``I had asked her what was going on, why the Union was coming in . . . . and she said `I don't know' and shrugged her shoulders.'' Wilkerson then remarked she was concerned about health insurance and asked why Respondent didn't pay half of each employee's insurance, and Jennings responded that there had been a rate increase and that he wouldn't pay it. Jennings specifically denied soliciting Wilkerson to tell other employees to vote against the Union.\36\ --------------------------------------------------------------------------- \34\Paige denied the conversation. \35\Jenson denied ever asking Wilkerson anything about the Union. \36\Jennings averred that, while speaking to other employees, as ``I'm very close to some,'' two or three volunteered the information that Wilkerson was the ``ringleader'' of the union campaign. --------------------------------------------------------------------------- Finally, alleged discriminatee, Eunice Gates, testified that, on September 16, the day of the election, which, apparently was divided into two sessions, accompanied by a union business agent, she arrived at the Royal Manor in order to vote. She went inside and recognized David Cohen, an attorney for Respondent. The latter spoke to Gates, and ``. . . he told me I have to leave the facility, that I shouldn't even be there, because I had been terminated, I shouldn't be there. . . . And I couldn't vote. . . .'' Gates characterized Cohen's tone of voice as ``. . . kind of abrupt and short'' and stated that she did not cast a ballot that day.\37\ During her cross-examination, Gates testified that the Board agent ``. . . [wasn't] going to explain [the procedure for casting a challenged ballot] to me. This is when Mr. Cohen got involved.'' Confirming that he saw and spoke to Gates on the day of the election but denying that he ever said she was not entitled to vote or that he ejected Gates from the facility, attorney Cohen testified, ``I questioned whether she had the right to be the Union observer since she was not currently employed at the facility.'' Cohen added that the only time voting arose with regard to Gates was in the afternoon when she appeared after the closing of the election and was denied an opportunity to vote by the Board agent. --------------------------------------------------------------------------- \37\During cross-examination, Gates was confronted with her pretrial affidavit in which she stated that the initial part of the conversation concerned the Union's use of her as an observer during the election, Cohen's objection to said status for Gates as she was no longer an employee, and the Union's ultimate acquiescence to Cohen's arguments and agreement to use another observer. Then, the Union asked that Gates be allowed onto the premises in order to vote. Cohen again objected because Gates had been terminated and was no longer an employee. The Board agent then explained that she could vote a challenged ballot. Gates did not do so, and the affidavit, on this matter, ends with the words ```I did not vote that day because Cohen said that I was not eligible to vote.''' --------------------------------------------------------------------------- The tally of ballots for the election shows that, of 33 eligible voters, 22 employees cast ballots and that 11 voted in favor of the Union and 11 voted against the Union. There were no challenged ballots. On September 19, the Union filed objections to the conduct of the election, listing eight objections. B. LEGAL ANALYSIS The amended consolidated complaint alleges that Respondent engaged in several acts and conduct, violative of Section 8(a)(1) of the Act, and, in this regard, I initially turn to consideration of the legality of the wage increase, which was announced in mid-July and given to all certified nursing assistant employees on or about August 1.\38\ Arguing that Respondent's granting of the wage increase was ``clearly well-timed to influence the Union election the following month'' and citing the decision of the Supreme Court in NLRB v. Exchange Parts Co., 375 U.S. 405 (1964), counsel for the General Counsel contends that the purpose of the raise was to convince employees to reject the Union as their bargaining representative rather than to aid in recruiting certified nursing assistants and that, therefore, the wage increase was unlawful. To the contrary, counsel for Respondent argues that the pay increase was given in response to surveys which showed that the Royal Manor was paying its certified nursing assistants less than what other area convalescent hospitals were paying to employees in the job classification and that the decision to implement the increase was reached prior to the Union's filing of its representation petition. In Exchange Parts, the Supreme Court stated that ``the danger inherent in well-timed increases in benefits is the suggestion of a fist inside the velvet glove. Employees are not likely to miss the inference that the source of benefits now conferred is also the source from which future benefits must flow . . . .'' Id. at 409. In several subsequent decisions, the Board adopted the position that the granting of a wage increase during the course of a union's organizing campaign is prima facie or presumptive evidence that such is intended to undermine the union's effort and is, thus, violative of Section 8(a)(1) of the Act and that the burden rested with the respondent to establish that the increase was granted for reasons other than to undermine employee support for the union. Brooks Bros., 261 NLRB 876, 882 (1982); Montgomery Ward & Co., 253 NLRB 196, 205 (1980); Chester Valley, Inc., 251 NLRB 1435 (1980). --------------------------------------------------------------------------- \38\The amended consolidated complaint allegation, that such was an ``across-the-board'' wage increase is apparently incorrect, and counsel for the General Counsel did not challenge Respondent's evidence that the raise was only given to certified nursing assistants. --------------------------------------------------------------------------- More recently, however, the Board has refused to rely upon any such presumption that a pay raise conferred during an organizing campaign is unlawful; rather, it now examines the record evidence as a whole, including whether the respondent has established legitimate reasons for the timing of the increase, in order to determine whether an inference may properly be drawn that the intent of the wage increase was to interfere with its employees' freedom of choice. Speco Corp., 298 NLRB 439 at fn. 2 (1990); Montgomery Ward & Co., 288 NLRB 126, 127 at fn. 6 (1988). Herein, the record evidence, regarding the timing of, and underlying rationale for, the announcement and implementation of the wage increase for Respondent's certified nursing assistants, was uncontroverted. Moreover, while the respective credibility of Respondent's witnesses, Judy Jenson and Bryan Jennings, appeared to be markedly deficient in comparison to that of two of the witnesses, who were proffered by counsel for the General Counsel, I did not find either to be inherently incredible. Accordingly, relying upon the respective, unrefuted testimony of Jennings and Jenson,\39\ I find that the impetus, underlying the challenged wage increase, was Respondent's inability to recruit qualified certified nursing assistants during the month of May and the resulting necessity that its employees, in the job classification, work substantial, and costly, overtime hours; that the latter was a significant cost factor at a time when Respondent was faced with the lack of an increase in the State of California's daily Medi-cal reimbursement rate for patients; that, in May and June, Jenson and Jennings spoke to officials of comparable Sacramento-area convalescent hospitals and ascertained that, while Respondent's starting standard rate of pay for certified nursing assistants was higher than some and lower than others, its starting per diem rate of pay for certified nursing assistants was significantly lower than the area norm;\40\ and that, in June, Jennings and Jenson concluded that, despite the lack of the anticipated Medi-cal reimbursement rate increase, in order to recruit and hire competent certified nursing assistants and to reduce overtime costs, Respondent had no choice but to increase its starting per diem wage rate for certified nursing assistants and, in order to be equitable, also to increase the standard wage rate for the employees. In these circumstances, I find that Respondent did establish legitimate reasons for the timing of its challenged wage increase, which were unrelated to its employees Section 7 rights or to the pending election and shall recommend dismissal of paragraph 13 of the amended consolidated complaint. Stanton Industries of California, 313 NLRB 838 (1994). --------------------------------------------------------------------------- \39\It is, of course, not unusual that a trier of fact believes some, but not all, of a witness' testimony. \40\Counsel for the General Counsel attacks the validity of Respondent's surveys, which were limited to wages, as failing to consider and compare the cost of the fringe benefits, which were paid by the other area convalescent hospitals, to those paid by Respondent to its certified nursing assistants. However, Jennings was adamant that he was only concerned with wage rates, and, of course, the issue herein is not the sufficiency of the wage surveys but whether such were, in fact, conducted. In this regard, I credit both Jenson and Jennings that each conducted such a survey. --------------------------------------------------------------------------- With regard to the remaining allegations of violations of Section 8(a)(1) of the Act, analysis of the respective credibility of the various witnesses is required. At the outset, I believe that, as compared to Bryan Jennings and Judy Jenson, Faye Wilkerson, who was employed by Respondent at the time of the hearing, and Mickey Noble, who voluntarily left her job with Respondent in October 1994, were significantly more impressive witnesses, with each appearing to have testified in a forthright and candid manner.\41\ Therefore, I shall rely upon Wilkerson's and Noble's versions of conversations in considering whether such constitute violations of the Act. Several acts of unlawful interrogation allegedly occurred during the period between the filing of the representation election and election on September 16. As to these, I find that, on August 12, in her office, Jenson asked Noble whether she had heard about the Union and what she was going to vote; that, one morning shortly before the election, Vikki Gagnon encountered employees Faye Wilkerson, Robyn Taylor, and Dorothy Haddox in the breakroom and questioned the three employees as to what the Union could do for them; that, on the Friday before the election, Andre Paige located Faye Wilkerson in the dining room and, after informing her that Jenson wanted to speak to her, asked Wilkerson whether she ``wanted'' the Union; that, on the following Monday, after Wilkerson found Jenson in a hallway and asked if the latter wanted to speak to her, Jenson asked Wilkerson whether she knew anything about the Union; and that, later in the same day, after requesting Wilkerson to speak with him outside the facility, Jennings admittedly asked her why the employees wanted the Union. --------------------------------------------------------------------------- \41\Likewise, Wilkerson and Noble impressed me as being more candid witnesses than either Vikki Gagnon and Andre Paige and shall be relied upon whenever in conflict with the latter two individuals. Robyn Taylor was not an impressive witness and shall be relied upon only to the extent she was corroborated by Wilkerson. --------------------------------------------------------------------------- As directed by the Board in Rossmore House, 269 NLRB 1176, 1177 (1984), I must consider the circumstances surrounding each incident in determining whether each constituted unlawful, coercive interrogation.\42\ Thus, I note that, as to the Jenson interrogation of Noble, there is no record evidence that Noble was an avowed supporter of the Union, Jenson is the administrator of the Royal Manor and the individual in charge of day-to-day operations, the interrogation occurred in Jenson's office, and there appears to have been no purpose for Jenson's questions other than to determine Noble's union sentiments; that, as to the Jenson interrogation of Wilkerson, there is no record evidence that Jenson had any knowledge as to Wilkerson's Union sympathies and the only conceivable purpose for Jenson's question was to discover the employee's union sentiments; and that, with regard to the Jennings interrogation of Wilkerson, there is no record evidence that Wilkerson was an avowed supporter of the Union, Jennings is the president of the corporation which operates the Royal Manor, Jennings requested that Wilkerson speak to him in private outside the facility, and there appears to have been no valid purpose for his question. In the above circumstances, noting that Jenson's and Jenning's questions sought to elicit the precise type of information employees are privileged to keep from their employers, I find that Jenson's interrogations of Noble and Wilkerson and Jennings admitted interrogation of Wilkerson were each coercive and violative of Section 8(a)(1) of the Act. Custom Window Extrusions, 314 NLRB 850, 855-856 (1994); Waste Management of Utah, 310 NLRB 883, 890 (1993). Likewise, the question, which was posed by Gagnon as she commenced her conversation with employees Wilkerson, Taylor, and Haddox in the breakroom must be considered coercive. Thus, she had no knowledge of the employees' union sentiments, the purpose of the question could only have been to determine the union sentiments of the employees, and her question was accompanied by later comments, which, as shall be discussed infra, unlawfully conveyed to the employees the futility of supporting the Union. Accordingly, Gagnon's interrogation of the three certified nursing assistants constituted coercive interrogation, violative of Section 8(a)(1) of the Act, and I so find. Debber Electric, 313 NLRB 1094, 1097 (1994). On the other hand, Andre Paige was not Wilkerson's immediate supervisor, and his question of Wilkerson seems to have been casually placed and not coercive. Accordingly, I find that his question was not violative of Section 8(a)(1) of the Act. --------------------------------------------------------------------------- \42\The surrounding circumstances include the time and place of the interrogation, whether the employee is an avowed supporter of the Union, and the capacity of the interrogator. The Hertz Corp., 316 NLRB 672, 683 (1995). --------------------------------------------------------------------------- Crediting the testimony of Mickey Noble, I find that, prior to the election, during a conversation, Jenson informed Noble that she knew Eunice Gates had ``started'' the Union and that, one day during the last week of August, Jennings came into her office and, among other things, said he knew Gates had ``caused'' the Union. The Board has long held that, when, in comments to its employees, an employer specifically names other employees as having started a union movement or as being among the union leaders, the employer unlawfully creates the impression, in the minds of its employees, that he has been engaged in surveillance of his employees' union activities. Jenson's and Jenning's comments to Noble are of this type and were, therefore, violative of Section 8(a)(1) of the Act. Athens Disposal Co., 315 NLRB 87, 98 (1994); Garney Morris, Inc., 313 NLRB 101, 116 (1993). On the other hand, while I believe that the incidents occurred as described and reveal the extent to which Respondent believed Gates was involved in the Union's organizing campaign, I do not believe that Jenson's comment to Gagnon on August 23, which was overheard by Wilkerson, or Gagnon's comment to Jenson on September 16, which was overheard by Noble, were unlawful. Thus, the comments were made during conversation between the two management officials and were not directed to the employees; therefore, neither could not have been intended to create the impression of surveillance in the mind of either employee. Accordingly, neither comment was violative of Section 8(a)(1) of the Act. Crediting, in particular, Faye Wilkerson and Robyn Taylor, to the extent she corroborated Wilkerson, I find that, during the breakroom conversation with Wilkerson, Taylor, and Haddox, after interrogating the three employees as to what the Union could do for them, Gagnon informed the employees that, being represented by a union ``. . . doesn't mean that the union can save your job'' and that, in order to terminate employees ``she would have to go by steps and ``[the Union] couldn't save your job.'' While I do not believe that the comments arise to the level of unlawful threats of discharge,\43\ I do agree with counsel for the General Counsel that, by her comments, Gagnon, in effect, communicated to the employees that, despite the presence of the Union, Respondent could act as it pleased with regard to them. The Board has long held, and I find, that comments, such as made by Gagnon, constitute unlawful expressions of the futility of selecting a union as their bargaining representative and, therefore, are violative of Section 8(a)(1) of the Act. Hertz Corp., supra; American Furniture Co., 293 NLRB 408 at fn. 2 (1989). --------------------------------------------------------------------------- \43\I shall, therefore, recommend dismissal of par. 11(b) of the amended consolidated complaint. --------------------------------------------------------------------------- Again crediting Wilkerson, I find that, during her conversation with Jennings on the Monday preceding the election, the latter ``. . . wanted to know if I could help him to keep the Union out of there'' by speaking to the other employees and finding out why they wanted a union. The Board holds that a solicitation by an employer of an employee to campaign against a union violates Section 8(a)(1) of the Act. McCarty Processors, 292 NLRB 359, 367 (1989); Delco-Remy Division, 234 NLRB 995, 996 (1978). Similarly, by soliciting Wilkerson to interrogate her fellow employees as to their union sympathies and activities on Respondent's behalf, Jennings likewise engaged in conduct violative of Section 8(a)(1) of the Act, and I so conclude. Finally, although counsel for the General Counsel did not seek to amend the amended consolidated complaint to allege his comment as unlawful, Bryan Jennings admitted that, during his conversation with Mickey Noble in her office, he asked her ``. . . was there anything I could do to make things better or anything that needs to be improved at the facility.'' I do not believe that Jenning's comment was innocently intended and find that it constituted nothing less than a solicitation of complaints or grievances from Noble. The Board has long held that, during an organizing or election campaign, by asking employees for their complaints concerning their working conditions, an employer unlawfully impliedly promises to make changes. HarperCollins Publishers, 317 NLRB 168 (1995); Great Plains Coca-Cola Bottling Co., 311 NLRB 509, 513 (1993); Columbus Mills, 303 NLRB 225, 227 (1991). Accordingly, I find\44\ that Jennings comment was violative of Section 8(a)(1) of the Act. --------------------------------------------------------------------------- \44\Given that this finding is based upon an admission by Respondent, it obviously was fully litigated. --------------------------------------------------------------------------- Turning to consideration of whether Respondent's termination\45\ of Eunice Gates was violative of Section 8(a)(1) and (3) of the Act, I note, at the outset, that my determination of the legality of Respondent's conduct is governed by the traditional precepts of Board law in alleged union animus discharge cases, as modified by the Board's decision in Wright Line, 251 NLRB 1083 (1990), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 453 U.S. 989 (1982), approved in Transportation Management Corp., 462 U.S. 393 (1983). Thus, in order to prove a prima facie violation of Section 8(a)(1) and (3) of the Act, the General Counsel has the burden of establishing that the alleged discriminatees engaged in union activities; that Respondent had knowledge of such conduct; that Respondent's actions were motivated by union animus; and that the discharges and layoffs had the effect of encouraging or discouraging membership in the Union. United Broadcasting Co. of New Hampshire, 253 NLRB 697, 703 (1980). Further, the General Counsel has the burden of proving the foregoing matters by a preponderance of the evidence. Gonic Mfg. Co., 141 NLRB 201, 209 (1963). However, while the above analysis is easily applied in cases in which a respondent's motivation is straightforward, conceptual problems arise in cases in which the record evidence discloses the presence of both a lawful and an unlawful cause for the allegedly unlawful conduct. In order to resolve this ambiguity, in Wright Line, supra, the Board established a causation test in all Section 8(a)(1) and (3) cases involving employer motivation. ``First, we shall require that the General Counsel make a prima facie showing sufficient to support the inference that protected conduct was a `motivating factor' in the employer's decision. Once this is established, the burden will shift to the employer to demonstrate that the same action would have taken place even in the absence of the protected conduct.'' Id. at 1089. Two points are relevant to the foregoing analytical approach. First, in concluding that the General Counsel has established a prima facie showing of unlawful animus, the Board will not ``. . . quantitatively analyze the effect of the unlawful motive. The existence of such is sufficient to make a discharge a violation of the Act.'' Id. at 1089 fn. 4. Second, once the burden has shifted to the employer, the crucial inquiry is not whether Respondent could have engaged in the discharges and layoffs herein, but, rather, whether Respondent would have done so in the absence of the alleged discriminatees' union activities and support. Structural Composites Industries, 304 NLRB 729 (1991); Filene's Basement Store, 299 NLRB 183 (1990). --------------------------------------------------------------------------- \45\While Respondent may not have discharged Gates, given the fact that Jenson failed to offer her the combined activities/social services director job in October, it is clear that the personnel action was more than just a simple layoff. --------------------------------------------------------------------------- Herein, there can be no question but that the General Counsel has established a prima facie violation that Respondent's termination of Gates was violative of Section 8(a)(1) and (3) of the Act. Thus, it was uncontroverted that Gates was the employee who initially contacted the Union regarding representing the employees at the Royal Manor and that Gates personally distributed to and collected from the employees of the Royal Manor most, if not all, of the Union's executed authorization cards. Moreover, it is clear that Respondent knew or believed that, if not the originator of the union organizing campaign amongst the Royal Manor employees, Gates was, at least, one of the leading union adherents. In this regard, I previously have found that Ruth Jenson told Mickey Noble that Gates was the employee, who ``started'' the union movement at the Royal Manor and that, in another conversation with Noble, Bryan Jennings labeled Gates as the employee, who had ``caused'' the union movement. Also, I credit Faye Wilkerson that, on the day of Gates' layoff, after being told by Gates that the Union had found another job for her, Gagnon reported the conversation to Jenson, and, overheard by Wilkerson, Jenson responded to Gagnon, ``I told you Eunice worked for the Union.'' Further, that Respondent harbored unlawful animus toward Gates may be seen from Jennings remark to Noble, which I credit, that ``. . . people were telling him that Gates was a lot of trouble . . . .'' Accordingly, I believe that the General Counsel established a prima facie showing that Gates was terminated because Respondent believed that she was one of the organizers of the union campaign at the Royal Manor. In these circumstances, the burden shifted to Respondent to establish that it would have terminated Gates notwithstanding her involvement in the Union's organizing campaign. As to this, Respondent contends that, due to budgetary considerations and a declining patient census, the decision was reached to eliminate the position of social services director, the only part-time position remaining amongst its work force. Thus, Respondent's contention, that, in August, faced with a pending budget crisis due to increased costs, in part, resulting from the necessary wage rate increase given to certified nursing assistants, and stagnant revenues due to the State of California's failure to provide, in its 1994-1995 budget, for a daily Medi-cal reimbursement rate increase for convalescent hospitals of the size of the Royal Manor, it began to implement cost-savings measures, including combining the social services and medical records jobs, was uncontroverted. In these circumstances, I credit the testimony of Jenson\46\ that, among the cost-savings measures implemented by Respondent, were seeking less expensive service and product vendors; combining the director of staff development positions at the Royal Manor and at Riverside Convalescent Hospital, a saving of $500 per pay period; leaving unfilled a vacant housekeeping supervisory position and combining the position's responsibilities with those of a laundry supervisory position; and eliminating a 4-hour afternoon certified nursing assistant's shift. --------------------------------------------------------------------------- \46\I recognize that Respondent offered no financial records, corroborative of Jenson's testimony and considered the lack of such in crediting Jenson. However, her testimony was utterly uncontroverted. If counsel for the General Counsel had cast the slightest degree of doubt on Jenson's testimony on these points, the lack of corroborative evidence might have weighed more heavily in my decision to credit whether or not to credit Jenson; however, no contrary evidence was adduced by counsel. Finally, I recognize that I have not credited Jenson's testimony in other regards. However, as I stated above, it is not unusual for a trier of fact to believe portions of a witness' testimony and to disbelieve other aspects. --------------------------------------------------------------------------- When viewed against the aforementioned background of a foreseeable revenue shortfall and cost reduction efforts, the decline in the patient census, Respondent's second reason for eliminating the social services director position and the reason given to Gates for her layoff, also appears valid and reasonable. Thus, notwithstanding Jenson's unwarranted hyperbole regarding the August daily patient census, the record evidence is indisputable that Respondent did experience a decline in the daily patient bed count from a range of 46 to 48 patients in June to 44 or 45 in August, and, in light of the above circumstances, Jenson's comment, regarding the negative impact of a seemingly slight one to three bed patient census decline, is credible. Moreover, while the record establishes that the daily patient census had become as low as 44 or 45 on previous occasions without occasioning an employee layoff, there is no record evidence, regarding Respondent's surrounding financial circumstances, on those other occasions, and the instant uncontroverted record evidence of budget problems, resulting from the unchanged Medi- cal patient reimbursement rate, warrants a conclusion that the declining August patient census did, in fact, adversely impact upon Respondent's perceived financial difficulties. In these circumstances, I must credit Jenson that a logical cost- savings measure was to eliminate the social services director position, which was the only regular part-time job at the Royal Manor, and to combine the job duties of said position with those of the medical records clerk. This combined job was, of course, offered to Mickey Noble, and, while, I believe, Jenson may have been less than candid as to one of her reasons for doing so,\47\ I further credit Respondent's administrator's testimony that her primary consideration in not offering the position to Gates was Gates's lack of experience and training for the medical records job and that another consideration was Gates' previous rejection of an offer of a full-time combined social services director and activities director job. As to the former reason, Mickey Noble, who otherwise testified adversely to Respondent's interests, stated that the medical records job required training and experience and that it would have been exceedingly difficult for someone, with no such training or experience, to perform the required job tasks. There is no record evidence that Eunice Gates possessed the necessary skills or training for that work. Further, Jenson did not believe Gates had the required charting and documentation skills for the position, and I believe Gates' failure to document a discharge plan for a patient, which was noted by State of California investigators in a deficiencies report and which was conceded by Gates, exemplifies her lack of documentation skills. As to the latter reason, inasmuch as it is highly unlikely that Respondent would have insisted that she perform combined jobs on a part- time basis, I credit Jenson over Gates that, in the fall of 1993, she offered Gates the combined activities/social services director job on a full-time basis and that the latter refused the position. Accordingly, based upon consideration of the record as a whole, I am convinced that, despite what I consider to be obvious fabrication of other aspects of its defense to the amended consolidated complaint allegations, Respondent has established, to my satisfaction, that it would have laid off Gates on August 23 notwithstanding its suspicions of her part in the Union's organizing campaign and its demonstrable animus toward her and that, therefore, her layoff on August 23 was not violative of Section 8(a)(1) and (3) of the Act. In these circumstances, I shall recommend dismissal of paragraph 14 of the amended consolidated complaint. --------------------------------------------------------------------------- \47\In particular, I do not believe that Gates' lack of a driver's license or a car had anything to do with Jenson's decision and do not credit her in this regard. Gates had performed the social services director job for 2-1/2 years, and it seems obvious that, if Gates' lack of a driver's license or a car had been a problem for Respondent, it would have been resolved before August 1994. --------------------------------------------------------------------------- C. THE PROPRIETY OF A BARGAINING ORDER REMEDY The General Counsel seeks a bargaining order as the only appropriate remedy for Respondent's unfair labor practices herein. In this regard, in determining whether the various acts and conduct, violative of Section 8(a)(1) of the Act, in which Respondent engaged, are sufficiently serious to warrant the imposition of a bargaining order remedy, I am, of course, guided by the test of the Supreme Court set forth in NLRB v. Gissel Packing Co., 295 U.S. 575 (1969). Therein, the Court described two types of situations where such an order would be appropriate. The first category involves ``exceptional'' cases, marked by ``outrageous'' and ``pervasive'' unfair labor practices as to which traditional remedies cannot erase their coercive effects with the result that a fair election is rendered impossible. The second concerns ``less extraordinary cases marked by less pervasive [conduct] which nonetheless still have the tendency to undermine majority strength and impede the election processes.'' Id. at 613-614. The Supreme Court added that, in the latter type of case, a bargaining order should issue whenever the Board finds that ``the possibility of erasing the effects of past practices and of ensuring a fair election . . . by the use of traditional remedies, though present, is slight and that employee sentiment once expressed through cards would, on balance, be better protected by a bargaining order.'' Id. at 614-615. While, in my view, Respondent's unlawful acts and conduct arguably fall within the second category, even assuming that the Union established majority status in the bargaining unit, which the amended consolidated complaint alleges as appropriate for purposes of collective bargaining,\48\ at the time Respondent committed the unfair labor practices, which I have found herein, I do not believe that the acts and conduct were not so egregious as to preclude the holding of a fair and reliable second election after the application of the Board's traditional remedies. --------------------------------------------------------------------------- \48\In view of my holding herein, I need not decide whether the Decision and Direction of Election, which was issued by the Regional Director of Region 20, as to which there was no request for review filed, acts as res judicata on the question of the appropriateness of the bargaining unit or whether such is the ``best evidence'' of a stipulation of the parties on that issue. --------------------------------------------------------------------------- Thus, I have found that Respondent violated Section 8(a)(1) of the Act by interrogating its employees about their union activities and sympathies and those of their fellow employees, creating, in the minds of its employees, the impression that their union activities were under surveillance, informing its employees that selecting the Union as their bargaining representative would be futile as the Union would not be able to save their jobs; soliciting employees to interrogate their fellow employees concerning their union sympathies and activities on its behalf; and soliciting grievances from employees and impliedly promising to remedy the complaints. There is no question that each of the foregoing unlawful acts and conduct constitutes a serious violation of the Act; however, none of Respondent's acts, which I have found unlawful, involves such employer misbehavior as closing the business or threatening to do so, discharging employees or threatening to do so, or the granting of benefits to employees--the so-called ``hallmark'' violations of the Act, the presence of which clearly warrant the issuance of a bargaining order. NLRB v. Jamaica Towing, 632 F.2d 208 (2d Cir. 1980); Horizon Air Services, 272 NLRB 243 (1984). In this regard, the instant matters may be distinguished from such cases as HarperCollins Publishers, Inc., supra, and Kona 60 Minute Photo, 277 NLRB 867 (1985), in which bargaining orders were issued based upon violations of Section 8(a)(1) of the Act but also in which the unlawful conduct included hallmark violations, including threats of discharge and office closure. Moreover, without denigrating their seriousness, the instant unfair labor practices involve statements as opposed to employer actions or threatened acts, such as unlawful discharges or plant closure, and, therefore, did not have a lasting inhibitive effect on a substantial percentage of the work force as would have the latter misconduct. Cf. Horizon Air Services, supra. Finally, I note that the alleged unfair labor practices were directed toward just three employees, one of whom voluntarily quit in October. In the foregoing circumstances, I cannot find that Respondent's unlawful acts and conduct constituted unfair labor practices so pervasive and substantial so as to have dissipated the Union's majority status and to have been so disruptive of the election process to preclude the holding of a fair and reliable second election after the application of the traditional remedies. Accordingly, the General Counsel's request for a bargaining order remedy is unwarranted. Blue Grass Industries, 287 NLRB 274 (1987); Fiber Glass Systems, 278 NLRB 1255 (1986); Evans Bros. Barber & Beauty Salons, 256 NLRB 121 (1981). THE OBJECTIONS TO THE CONDUCT OF THE ELECTION In view of Respondent's above-described unfair labor practices, including interrogating employees regarding their union sympathies and activities and those of their fellow employees, creating, in the minds of employees, the impression that Respondent was engaging in surveillance of their union activities; informing employees that selection of the Union as their bargaining representative would be futile as the Union would not be able to save their jobs; soliciting employees to interrogate their fellow employees, on its behalf, regarding the Union, and soliciting grievances from employees and, thereby, impliedly promising to correct them, and given that such occurred during the critical period between the filing of the instant petition for a representation election and the holding of the election, I find merit in Objection No. 7 of the Union's objections to the conduct of the election.\49\ Accordingly, it will be recommended that the election, which was conducted on September 16, 1994, in Case 20-RC-17051 be set aside and the matter be remanded to the Regional Director of Region 20 for the purpose of conducting another election at such time and place he deems circumstances permit the free choice of a bargaining representative. --------------------------------------------------------------------------- \49\As to the remainder of the objections, as no evidence was adduced with regard to any of them, I shall recommend their dismissal. --------------------------------------------------------------------------- CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(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 interrogating employees with regard to their union sympathies and activities and the union sympathies and activities of their fellow employees, Respondent engaged in conduct violative of Section 8(a)(1) of the Act. 4. By creating the impression, in the minds of its employees, that it was engaged in surveillance of their union activities, Respondent engaged in conduct violative of Section 8(a)(1) of the Act. 5. By informing employees that, despite the presence of the Union as their bargaining representative, it would not be able to save their jobs, Respondent informed employees it would be futile for them to select the Union as their bargaining representative, thereby engaging in conduct violative of Section 8(a)(1) of the Act. 6. By soliciting employees to interrogate their fellow employees with regard to their union sympathies and activities, on its behalf, Respondent engaged in conduct violative of Section 8(a)(1) of the Act. 7. By soliciting grievances from employees and impliedly promising to correct them, Respondent engaged in conduct violative of Section 8(a)(1) of the Act. 8. The above-described acts and conduct constitute unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 9. Unless specifically found above, Respondent engaged in no other unfair labor practices. THE REMEDY I have found that Respondent engaged in serious unfair labor practices violative of Section 8(a)(1) of the Act. Therefore, my recommended Order will require Respondent to cease and desist therefrom and to take certain affirmative actions designed to effectuate the purposes and policies of the Act, including the posting of a notice. On these findings of fact and conclusions of law and on the entire record, I issue the following recommended\50\ --------------------------------------------------------------------------- \50\If no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all purposes. --------------------------------------------------------------------------- ORDER The Respondent, Royal Manor Convalescent Hospital, Inc., Sacramento, California, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Interrogating employees as to their union sympathies and activities and the union sympathies and activities of their fellow employees. (b) Creating the impression, in the minds of its employees, that it is engaging in surveillance of their union activities. (c) Informing employees that, despite the presence of the Union as their bargaining representative, it would not be able to save their jobs and, thereby, conveying to them that selection of the Union as their bargaining representative would be futile. (d) Soliciting employees to interrogate their fellow employees, regarding their union sympathies and activities, on its behalf. (e) Soliciting grievances from employees and, thereby, impliedly promising to correct them. (f) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the purposes and policies of the Act. (a) Post at the Royal Manor Convalescent Hospital in Sacramento, California, copies of the attached notice marked ``Appendix.''\51\ Copies of the notice, on forms provided by the Regional Director of Region 20, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained by for 60 consecutive days in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. --------------------------------------------------------------------------- \51\If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading ``Posted by Order of the National Labor Relations Board'' shall read ``Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.'' --------------------------------------------------------------------------- (b) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. It is further ordered that the amended consolidated complaint be dismissed insofar as it alleges that Respondent violated Section 8(a)(1) and (3) of the Act by terminating Eunice Gates and Section 8(a)(1) of the Act by granting a wage increase to its certified nursing assistants and that the election held on September 16, 1994, in Case 20-RC-17051 be, and it hereby is, set aside and the case is hereby remanded to the Regional Director of Region 20 for the purpose of scheduling and conducting another election at such time that he deems circumstances permit the free choice on the issue of representation. Dated March 26, 1996. APPENDIX Notice To Employees Posted by Order of the National Labor Relations Board An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. We will not interrogate our employees with regard to the union membership, sympathies, or activities or the union membership, sympathies, or activities of their fellow employees. We will not create in the minds of our employees the impression that we are engaging in surveillance of their union activities. We will not inform our employees that, despite the presence of a union as their bargaining representative, it would not be able to save their jobs, thereby conveying to our employees that it would be futile to select a union as their bargaining representative. We will not solicit our employees to interrogate their fellow employees, regarding their union sympathies and activities, on our behalf. We will not solicit grievances from our employees, thereby impliedly promising to correct them. Service Employees Union, Local No. 22, Service Employees International Union, AFL-CIO