Batavia Nursing And Convalescent Inn

886 DECISIONS OF NATIONAL' LABOR RELATIONS BOARD Batavia Nursing and Convalescent Inn and National Union of Hospital & Health Care Employees, District 1199, WV/KY/OH, Retail, Wholesale & Department Store Union, AFL-CIO. Case 9- CA-19897-1 28 June 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS' HUNTER AND DENNIS On 13 December 1984 Administrative Law Judge Nancy M. Sherman issued the attached deci- sion. The Respondent filed exceptions and a sup- porting brief, the Charging. Party,filed cross-excep- tions and a_ brief in support of its cross-exceptions and _ in opposition to the Respondent's exceptions; and the Respondent filed a brief in opposition to the Charging Party's cross-exceptions. - 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, i and conclusions;2 and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Batavia Nursing- and Convalescent -Inn, Batavia, Ohio, its officers, agents, successors, and assigns; shall take the action set forth in the Order. I The Respondent has excepted to some of the judge's. credibility find- ings The Board's established policy is not to overrule an administrative law ,fudge'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 2 In adopting the judge's conclusion that the Respondent is accounta- ble for its attorney's election day assault on the union, organizer in the presence of employees, we agree that the attorney's actions were within the general scope of his agency authority, even though the Respondent may not have authorized the specific acts ,in question In this regard we particularly rely on the judge's findings concerning the attorney's repre- sentation of the Respondent in various matters relating to the electiori, e.g., at the preelection conferences and at the counting of the ballots Thus, we note that on several occasions that day, the attorney, spoke for and engaged in activity on behalf of the Respondent, e g , by ordering ex- employees out of the election room and by escorting the union organizer to the door, following the afternoon conference We therefore find that the attorney's authority to deal with the Union was not limited to strictly legal matters, but rather was akin to that' exercised by the Respondent's administrators Moreover, in these circumstances 'the employees reason- ably could have regarded the attorney is a management representative Accordingly, we adopt the finding of the judge that the Respondent vio- lated Sec 8(a)(1) of the Act when its attorney assaulted the union orga- nizer in the presence of the Respondent's employees Chairman Dotson further finds that the attorney's conduct was coer- cive when viewed against the background of the campaign and the Re- spondent's failure to disavow the action - DECISION STATEMENT OF THE CASE NANCY M. SHERMAN, Administrative Law Judge. This case was heard before me in Cincinnati, Ohio, on Sep- tember 6, 1984, pursuant to a charge filed on July 18, 1983, and a complaint issued on April 18, 1984. The complaint alleges that Respondent Batavia Nursing and Convalescent Inn violated Section 8(a)(1) of the National Labor Relations Act (the Act), when Respondent's attor- ney, Julius M. Steiner, physically assaulted an agent of National Union of Hospital & Health Care Employees, District 1199, WV/KY/OH, Retail, Wholesale & De- partment Store Union, AFL-CIO (the Union), during the process of a Board election and in the employees' presence. On the record as a whole, including the demeanor of the witnesses, and after- due consideration of the briefs filed by -the General ,Counsel, the Union, and Respond- ent, I make the following FINDINGS OF FACT I. JURISDICTION Respondent is an Ohio corporation with an office and place of business in Batavia, Ohio, where it is engaged as a health care institution in the operation of a nursing and convalescent facility. During the year preceding the issu- ance of the complaint, a representative period, Respond- ent's gross revenues at, its Batavia facility exceeded $100,000; and Respondent purchased and received at its Batavia facility goods and materials valued in excess of $5000 directly from points outside Ohio. I find that, as Respondent admits, Respondent is engaged in commerce within the meaning of the Act and that assertion of juris- diction over its, operations will effectuate the policies of the Act. The Union of the Act. is a labor organization within the meaning II. THE ALLEGED UNFAIR LABOR PRACTICES A. Background In the spring of 1983, the Union conducted an organiz- ing campaign at Respondent's Batavia, Ohio facility. This campaign was directed by David Levdansky, a field or. ganizer with the AFL-CIO cooperative organizing' cam- paign based' in 'Cincinnati, Ohio. Pursuant to a petition filed by the Union in Case 9-RC-14237; a Board election was scheduled to be held at Respondent's facility on May 6, 1983. The Philadelphia, Pennsylvania law firm of Pechner, Dorfman, Wolffe, Rounick and Cabot, 'includ- ing partner Julius M. Steiner, was retained by Respond- ent to represent it in 'all legal matters pertaining to that case. In this representation, Steiner was "lead counsel." He represented Respondent in negotiating and executing the stipulation which led to that election. On May 5, 1983, the day before the election, the Union distributed some orange fliers prepared and signed by Levdansky, who gave his title as "AFL-CIO Co-op Organizer and Economist." The fliers contained crude, 275 NLRB No. 125 BATAVIA NURSING INN amateurish, and unflattering caricatures of Administrator Burton Ray Hodges-(captioned Ray Jr.) and David Jones, a black labor consultant who had at one timerep- resented the Union and who had been retained by Re- spondent in connection with the election. Jones' picture was captioned "Mr. David Jones (Judas)." Hodges was portrayed as giving a bag of money to Jones with the remark, "You've done a good job scaring and -confusing the workers," to which Jones was portrayed as replying that he expected to enjoy a vacation in the Caribbean. The flier further said: IN HIS CAPTIVE AUDIENCE MEETINGS, MR. DAVID JONES HAS CLAIMED TO BE EACH OF THE FOLLOWING: 1. VICE PRESIDENT OF DRESS-MAKING COMPANY. 2. REPRESENTATIVE OF STEINER'S LAW FIRM. 3. ADMINISTRATOR OF A NURSING HOME. . 4. REPRESENTATIVE OF INNOVATIVE MANAGEMENT SYSTEMS. - WE DON'T KNOW WHICH HE IS, ALL WE KNOW IS HE'S GOTTEN RICH FROM [RE- SPONDENT]. ,- LET ME HELP YOU BARGAIN YOUR FIRST CONTRACT AT [RESPONDENT]. WE CAN WORK TOGETHER FOR A BETTER TOMOR- ROW! VOTE "YES" FOR [THE UNION]. A May 6 preelection conference was scheduled at the facility before the scheduled start of the -balloting at 7 a.m. that day. Levdansky came into the facility about 6:30 a.m. that day, and apparently started to head direct- ly for* the activities room, where the balloting was to take place and which is in a wing off the center corridor of the building. Steiner and Hodges asked Levdansky to sit in the reception area. Steiner then went into the ac- tivities room, while Hodges waited with Levdansky in the reception area. About 5 minutes later, Steiner came into the reception area, introduced himself to Levdansky (who had never met him before), and escorted Lev- dansky and- Burton Ray Hodges into the activities room. Also present in the activities. room were Board -Agent Richard Kopenhefer and employees Ruth Lawson, Amanda, Sowards,, Bernetta Homer, and Pat Harris.' During the conference, Steiner. represented and did:some of. the talking for Respondent. He.told-Kopenhefer that the handout which had been passed out the night before not only was illegal but also had a' racial slur which really upset Jones. Steiner said that Levdansky owed Jones (who was not then present) tan apology-, and that Levdansky- owed Burton Ray Hodges an, apology,, too, for referring to him as' "Ray Junior." Levdansky apolo- gized to Hodges and said that he had not learned until a couple of days before that Hodges was not a junior. Lev- dansky further said that he was a new breed of organiz- er; had good literature, and was going to use Respond- 887 ent's operation and Steiner's law firm as a stepping stone to organize the county. After this conference,, Steiner walked Levdansky out to his truck in Respondent's parking lot. Steiner said that he was upset by the handbill, and said that it was a "low- down thing to do" which made Jones look "like a Sambo." Levdansky said that there were 'no racial inten- tions in the handbill. Steiner again said that he thought Levdansky should apologize to Jones. Levdansky said that he believed that what was really upsetting Steiner was the fact that Respondent was going to lose the elec- tion to a youthful looking, inexperienced organizer who was aggressive and could read and write legibly. Lev- dansky said that Steiner's law firm was. perceived, by most in the labor movement as being the "number one union busting law firm in the country," and that Lev- dansky was going to 'make his reputation by beating Steiner's law firm in the election. Steiner named a former organizer for another union who had "seen the light" and was now a consultant who 'advised management -in representation elections, and said that Levdansky "ought to think about that some time." Levdansky said that he was never going to "jump the fence" because his philos- ophy included a belief that the trade union movement furthers the cause of workers and society. i After Steiner had escorted Levdansky to his truck, Levdansky drove away to have breakfast with employee Margaret Hembree. During breakfast, he asked her to be a union observer, and she agreed. After finishing break- fast, the two drove to the facility and went into the re- ception area. Levdansky asked the receptionist to page Board Agent Kopenhefer.. She did so,, but Kopenhefer, did not appear. Instead, Steiner, Hodges, and Facility Coordinator Robert Lehman came into the reception area. Steiner said that Levdansky was not allowed to go into the balloting area, and that Kopenhefer was not al- lowed to leave the activities room during- the- actual voting. Levdansky said that all' he wanted to do was to substitute, Hembree; for employee Sowards, who was then, serving as- the Union's observer but 'needed to get some rest before starting to work on her night' shift. Steiner thereupon-approved the admission into the, activi- ties room of Hembree, who took over from Sowards. After the substitution; Levdansky displayed reluctance to leave. -After talking' to Levdansky, Steiner took' him by, by' the- arm. and walked him' out the front door. 2 My finding as'to the hour of this' conveiiation-is, based !on` Lev-' dansky's testimony, as to which he'appeared'to have abetter iecollectiori than Steiner My findings' as to` what was said aie'ba"sed'on a- composite' of credible'parts-of their testimony ".Levdan'sky'admittedly'felt that the Union had ,a good chance` of, winning the election; and' admittedly' said that Steiner's firm 'was widely perceived as the "number one union bust mg,. law firm in the country,^and that if,you know, this inexperienced guy beats you [in in], election, 'you'know "„I do; not accept Levdansky s denial -of Steiner's testimony that,Levdansky, sajd he: was going ' to make his reputation by beating Stemei's law firm 2 My findings as to this incident are based on a composite of credible ' parts of the testimony of Levdansky and Hodges Respondent's witnesses Steiner and Lehman and, the General Counsels'.witness Hembree. were not asked about this incident , 1 ,, 11 , , , ' 888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The afternoon session of the balloting was scheduled to begin at 4 p.m. During a conference preceding that session, Levdansky told Board Agent Joseph Roberts, who was in- charge of the afternoon session, that Lev- dansky would-object to any reading of any announce- ment over the public address system. Steiner said that Respondent wanted to make an announcement . Roberts said that Respondent could do so. After all physical ar- rangements had been made for the resumption of the bal- loting, Levdansky left the facility and headed across the parking lot. While in the middle of the parking lot, Lev- dansky decided'that he wanted to listen to the public ad- dress announcement to make sure that it-contained noth- ing illegal . He walked back into the reception area, where he encountered Steiner, Hodges, and Lehman: Levdansky asked Steiner if he would have any objec- tions to Levdansky's remaining where he was, to listen to the announcement. Steiner. said that Levdansky had made "an ass" of himself by objecting before, directed him in earthy- language to get out before Steiner kicked him out, grabbed Levdansky's arm, and dragged him a couple of steps. At the same time, Hodges threatened to call the police and have Levdansky arrested for trespass- ing:3 B. Steiner's Assault on Levdansky 1. Credited evidence regarding events after the polls were closed The activities room, where the ballots were counted and the tally was prepared and signed, is about 20 feet long by 11 feet, wide. One of the long sides contains a doorway which is near one end of the room and opens onto a corridor to the reception area. The short wall to the left of the doorway as one enters the room contains a sink. At all times relevant here, two tables, each of them 5 or 6 feet long and about 3 feet wide, were standing in the middle of the room with a short end of one abutting a short end of the other, and with the long sides parallel to the long walls-of the room. After the polls were closed, Levdansky reentered the activities room and' sat down on a chair against the wall which contained the doorway, and immediately to the right of the doorway as one enters the room. At that time, the four observers were seated facing Levdansky and at the side of the tables farthest away from him. From his right to -his left there were union observer Lawson, union observer Hembree, company observer Carolyn Kunz (also referred to in the record as Combs), and company observer Harris. All four were employees. Also present were Administrator Hodges, Facility Coor- dinator Lehman, Company Attorney Steiner, labor.con- sultant Jones, Director of Nursing-Betty Brown (a super- visor), and Personnel Director Beth Denny. -In addition, employees Delores Holtzclaw, Shirley McMullen, Elaine Connors, Kathy Riley, Sue Hartley, and Linda Mullen a My findings as to this incident are based on the testimony of Lev- dansky, the only witness who gave a complete account -of the incident. Hodges admitted asking Levdansky to leave at 4 p .m Hodges testified that he could not "recall" Steiner's escorting Levdansky out of the facili- ty at that hour For-demeanor reasons, I credit Levdansky to the extent that his testimony as to this matter may differ from Hodges' testimony were present. Board Agent Roberts was standing across from the observers and at the long side of the tables, with his back to Levdansky. As soon as Levdansky sat down, Steiner remarked that he had learned a lot from Levdansky during the cam- paign. Steiner said that he had studied Levdansky's tac- tics and methods and had gained some valuable insights. Levdansky said that Steiner would have a lot more to learn because Levdansky would be around in the labor movement for a long time. By this time, exemployee Geraldine Townley and her husband Jim had come into the room to watch the count. Steiner asked Hodges who they were. When Hodges explained, Steiner said, ."Get them out of here."4 'Hodges ' then walked across the room, passing between Levdansky and the table. As Hodges passed by, Levdansky remarked, "Ray, can't you be a gentleman just one time and let them stay?" Hodges continued by and told the Townleys to leave. They did so.5 - - Then, Jones stationed himself at the short wall where the sink stood. Hodges, Lehman, and Steiner sat down against the other short wall. Both Levdansky and Steiner brought out note pads and pens, in order to make a record of the ballot count. As Roberts called out the choice appearing on each ballot, Levdansky and (inferen- tially) Steiner recorded that vote on their respective pads. When Roberts had called out enough "Noes" to es- tablish that the Union had lost the election, Steiner ex- changed congratulations and handshakes with Lehman and Hodges.6 Then, all three walked over to the corner of the room to Levdansky's left and farthest away from him, where they thanked Jones and exchanged congratulations with Jones, Brown, and all of the antiunion' employees who had congregated there. After the final ballot was read off,, Levdansky walked over to union observers Lawson and Hembree to offer them some consolation. He sta- tioned himself at the table corner directly. across from where they were sitting, and with his side and back toward the wall with the sink. Board Agent Roberts was stationed opposite the observers and about where the two tables abutted, with the ballots in front of him. Lev- dansky said that he and the union observers had done their best, that they had run a good campaign, that they had nothing to be ashamed of, that they could walk out with their heads held high, and that they would figure out what would happen next. At this juncture, taking a path between the tables and the wall containing the door, Steiner walked past Levdansky's right side and sta- tioned himself in front of Levdansky. Steiner was fol- lowed by Lehman and Hodges, both of whom paused somewhat to Levdansky's right and a little behind him.7 * This finding is based on Levdansky 's testimony For demeanor rea- sons, I do not accept Hodges' testimony that it was he who initiated this request. 5 My findings as to the Townley incident are based on Levdansky's testimony, which for demeanor reasons I credit in preference to Hodges' somewhat different version - 6 The final tally was 41 yes votes, 72 no votes, and no more than 9 challenged ballots ° My finding as to where Steiner paused is based on Levdansky 's testi- mony My finding as to where Lehman and Hodges paused is based on Continued BATAVIA NURSING INN Meaning to refer to the orange flier,8 Steiner put his face close to Levdansky's face and said that Steiner could now use Levdansky's "smutty" campaign "literature in seminars throughout the country about how to defeat unions. Levdansky told him to go ahead, that he might learn something from it.9 Steiner called Levdansky a "smart ass" or an "asshole." Levdansky thereupon voice- lessly mouthed the words "Fuck -you" toward Steiner, whose face was 2 or 3 inches from Levdansky's face (see infra part II,C,3,a) Steiner immediately grabbed Lev- dansky by his shirt'and tie. Steiner said, "Apologize to me, you bastard _. . . you son of a bitch . . . you m- f- Who do you think you are, messing around with people's lives?" 10 As Steiner was saying this, he pushed Lev- dansky back several steps. Board Agent Roberts jumped between them, put up a hand, and said, "Stop it, gentle- men, break it up." However, Roberts remained near the pile of ballots on the table as Steiner advanced toward Levdansky, who took two or three steps backward and told Steiner to back off, to leave Levdansky alone, and to get away. Hodges and Jones moved over to Steiner's left and Levdansky's right, and walked beside Steiner and Levdansky as Steiner was advancing and Levdansky was retreating. Levdansky paused between the doorway and the chair where he had been sitting to take the ballot count which was standing by the, wall. He looked at Jones, who by this time had walked over to a -point within an arm's length of Levdansky's left, and said, "I have to sign that tally sheet before I get out of here."' Jones said, "No, you don't."11 At this juncture, Steiner, who is right-handed, hit Lev- dansky's left jaw with Steiner's right fist. Steiner is 37 years old, -is 6 feet 1 inch tall, and weighs 180 pounds. Levdansky is 8 years younger than Steiner, is a half-inch taller, and weighs about 20 pounds less. Steiner's blow inferences from Lawson's credible testimony that Hodges was on her right "when the fight started", Lehman's and Hodges' credible testimony that at that time Lehman was near Hodges, Hodges' testimony that he was at Levdansky's right during the Levdansky-Steiner conversation, Levdansky's credible testimony that when he mouthed an obscenity to Steiner (see infra), nobody else 'was behind or on either side of Steiner, and Steiner's testimony that he was alone when he approached Lev- dansky For demeanor reasons, I do not credit Lehman's uncorroborated testimony that Levdansky walked toward Steiner and met him immedi- ately behind Roberts a Hodges and Lehman testified that Steiner had the flier in his hand Steiner testified that he did not remember whether he then had it Hodges testified that Steiner had been keeping the flier folded in his pad, and that when Steiner went over to Levdansky, Steiner pulled out the flier As discussed infra, it is undisputed that within a matter of seconds after Steiner addressed Levdansky , Steiner hit Levdansky with his fist Neither Hodges nor Lehman gave any explanation for what happened to the flier, the pad, or the, pen before the blow I credit Hembree's testimo- ny that when approaching Levdansky, Steiner was not carrying either the flier, his pen, or his pad 9 This finding is based on the testimony of Levdansky,, Lawson, Hodges, and Hembree For demeanor reasons, I do not credit Steiner's denial - 10 My finding that Steiner called Levdansky "a bastard" is based on Hembree's - testimony For demeanor reasons, I do not credit Hodges' denial i 1 Under Board practice, the tally can be signed by one of the partici- pating observers or by any witness authorized to act National Labor Re- lations Board Casehandling Manual, Part II , Representation Proceedings, Sec 11340 9, p 157 (April 1984) 889 drove Levdansky's head into the wall.12 Levdansky, who was still holding his notebook in one hand, grabbed with the other hand at the place on the back of his head where it had hit the wall: Steiner cursed Levdansky, called him "a son of a bitch," grabbed him with both hands by his shirt and the lapels of his jacket, and pushed him toward the doorway. Then, Hodges, Lehman, Jones, and Steiner all told him to get out. Steiner continued to curse at Levdansky, called him "a son of a bitch," demanded an apology, and asked what he was doing messing around with people's lives. Lev- dansky looked around Hodges, Lehman, Jones, and Steiner; looked to employees McMullen and Holtzclaw, both of whom favored the Union; and said, "Let's go, let's-get out of here." At this point, Steiner pushed Lev- dansky from behind. As Levdansky stumbled out of the room, he was accompanied by Lehman, Hodges, Steiner, and Jones.13 Lehman, who is Hodges' superior, walked beside Levdansky as he walked down the hall, into the reception area, and out the front door; during this period, Lehman repeatedly told Levdansky, "Let's get out . . . Let's go. Get out, let's go." While Steiner, Jones, and Hodges were following Levdansky and Lehman, Jones and (perhaps) Hodges tried to get be- tween them and Steiner, who kept pushing against them and yelling, "You apologize to me,, you son of a bitch." 14 However, Steiner twice shoved Levdansky from behind. By the time of the latter shove, Levdansky was in the reception area. He left the building via the front door, talked for a few minutes with the Townleys, and then proceeded to his truck in the parking lot. After seeing Levdansky leave the building, Hodges returned to the activities room. Jones and Lehman also returned to - the activities room. However, at least until after the final tally,-Steiner did not return. 15 After Levdansky, Steiner, Lehman, and Jones had left the activities room, they could not be seen or heard by anyone who was still there, and there is no evidence that 12 My finding that Levdansky was standing by the doorway when Steiner hit him is based on the testimony of Levdansky, Hodges, Hem- bree, and Lawson My finding that Steiner struck only one blow is based on the testimony of Levdansky and Lawson, which is consistent with the testimony of all the other witnesses except Lehman and Steiner , both of whom testified that Steiner hit Levdansky twice Lehman was the only witness who testified that, when hit by Steiner, Levdansky was standing near the middle of the voting table For demeanor reasons, as to the mat- ters discussed in this footnote, I discredit Lehman and Steiner 13 This finding is based on credible parts of the testimony of Lev- dansky, Lawson, Hodges, and Hembree For demeanor ieasons, I do not accept Lehman's testimony that although he himself left the room with Levdansky, he did not know whether Hodges, Steiner, and Jones were with Levdansky and Lehman as they left , or Steiner's rather uncertain testimony that he himself remained in the room - 14 My findings as to Lehman's remarks and Steiner's yelling after Lev- dansky left the activities room are based on Hodges' testimony For de- meanor reasons, I do not credit Lehman's testimony that neither he nor Steiner said anything 15 This finding is based on Hembree's testimony Contrary to Hodges, Levdansky, and Hembree, Steiner testified, although rather hesitantly, that he did not leave the activities room with or after Levdansky Both Hodges and Lehman testified that after Lehman escorted Levdansky out of the activities room, Steiner returned to that room However, Hodges testified that Steiner walked back from the reception area with him, while Lehman testified that he walked back from the reception area with Hodges and that Lehman did not know where Steiner was at that time 890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD any employee saw anything which occurred while Lev- dansky was proceeding from the hallway outside the room to the facility exit. That evening, Hembree saw Levdansky with a red spot, on his jaw; and running his hand through his hair as if his head hurt. She suggested,that he have his head, X- rayed. 2. Aftermath Thereafter, Steiner fled a criminal charge against Lev- dansky. Following - that, Levdansky filed • a criminal charge against Steiner. Also, on an undisclosed date whose sequence with these criminal charges is not shown by the record, Levdansky filed a civil suit against Steiner and his law firm. Respondent was not a party to either of the court proceedings initiated by Levdansky. After Steiner had filed'the criminal charge against Levdansky, a trial date was- set for about September 1983 in Batavia, Ohio. About 4:1'5 p.m. on the day before the trial was scheduled to begin, Levdansky and the trial court re- ceived a telegram from Steiner (whose office is in Phila- delphia, Pennsylvania) that because of personal and pro- fessional considerations, he would not be able to get to; Batavia for the trial. The judge thereupon threw the case out of court. As of September' 6, 1984, the date of the hearing. before me, • Levdansky's criminal charge against Steiner was scheduled for trial on October 10, 1984. I have not been advised,of, the result of that trial, if any. Also as of September, 6,,19 84, a trial for, the civil suit had not yet been set. - . • - Respondent,paid Steiner.for his services on the day of the May 6, 1983- election. Respondent's, trial counsel during the,September 1984 hearing before me is not asso- ciated with Steiner's -law -firm. However, that law firm represented Respondent in ,the instant litigation until at• least July 18,. 1984,16, and at -the ^ time of. the September 1984 hearing before the, Steiner was still Respondent's attorney. Neithei Hodges, nor anyone, else, connected with Respondent apologized, to employee Lawson' for., the iiicident, told her that they had nothing to doi with it,, or gave her anything in writing' concerning it.^ Nor is there ' any evidence ;that any'-such 'communications were made ' to any of - the other employees who saw the inci- dent. ' . , '3. Remaining credibility issues a.,Reasons for-findings as to Levdansky's remarks-to i Steiner.. `As 'to what Levdansky 'said - to Steiner before- Steiner = ptished -him, 'the te`stimony' ` is' in 'conflict.'The- testimony of 'employees' L- awsoril arid] Heinbiee^ that they - did not hear L='evdansky' make Zany obsce'n'e' or ethnic' 'remarks is consistent =- with='Levdansky's^'testiinony) that he merely motitlied'the .only, bbscene"retnaiks he 'h ade'to'Steiner; but islincdnsistent withr'the testimony 'Of iSt^inei, 'Hodges, and Lehman ; .that Levdansky''- audibly: made- ' obscene t ethnic remarks to Steiner.? Steiner's1 notes of these-events,: 16 On that date, Steiner's law firm signed a receipt for an order-re- - schedulmg-the -hearing . Steiner!s law firm filed - Respondents April 25, 1984 answer.to the instant complaint - ... - : - ; 1) 1- . which notes he made about 3 weeks afterward , corrobo- rate Levdansky's testimony as to the words he used, al- though Steiner prepared these notes in order to have ,.some sort of record" of what-happened and made them as accurate as he could at the time . Particularly because Steiner had been a practicing attorney for over 10 years, I do not credit his explanation that his notes omitted any' reference to Levdansky's alleged ethnic slurs because "There wasn't any necessity for. me to record those. They- were recorded indelibly in my memory." Further, although Steiner, Lehman, and Hodges all testified that Levdansky made a slighting remark about . Steiner's Jewish religion and ethnic origin , 17 Steiner did not cor- roborate Hodges' and Lehman's testimony that Lev- dansky also referred to Steiner 's nose, Lehman did not corroborate Steiner's testimony that Levdansky called Steiner "a bastard," and Hodges denied such - testimo- ny.18 In view of the foregoing, and for demeanor rea- sons, I credit the testimony that Levdansky uttered no ethnic slurs, and that his only obscenity was mouthed toward Steiner; and discredit the contrary testimony of Hodges, Lehman , and Steiner. b. Other credibility issues Steiner and Lehman both testified that after. allegedly addressing an ethnic slur to Steiner, Levdansky gave him a push. Hodges testified that he could not -tell whether Levdansky touched Steiner, but but that Levdansky raised his hand as if he was going to put it on Steiner's shoul- der. Levdansky's denial that he made any contact with or raised his hand toward Steiner. is corroborated by Lawson and Hembree. For demeanor reasons, I credit Levdansky, Lawson, and Hembree. - - Lawson testified • that after being first grabbed by Steiner, Levdansky was continually pushed by Steiner until Levdansky, had reached the wall. Because Lev- dansky was in a better position to -know what happened, I credit, his testimony that Steiner initially pushed him two or'three steps-backward and he then backed up to the, wall under: his own power.' 9 , ..Hodges - testified that he and Jones tried to restrain Steiner before he hit ,Levdansky, and got, between Steiner and - Levdansky after the blow • was struck. Lehman testified that Hodges and Jones restrained- Steiner- after he hit Levdansky. 'Steiner 'did not testify to, any efforts. by anyone, to keep him from hitting Lev-,- dansky, and testified (contrary to the testimony: of other. witnesses; see supra fn. 13) that when Levdansky left the room„ ; Steiner, was, held by someone whose. identity 117 Also, Steiner s law firm is known as a Jewish law firm , {19 Hodges testified that when he discussed the incident with Steiner on an undisclosed date after he, filed criminal charges , against ' Levdansky, Steiner stated that 'Levdansky had called him "a bastard" and Hodges thought that' Steiner' had `either misunderstood 'Levdansky or-missed-'part of what he, had said. Hodges' also testified that during this conversation with. Steiner, Steiner attributed to Levdansky- a remark - about Stemer.'s nose, which remark differed from Hodges ' testimonial version on direct examinatioii 'and from Lehman's testimonial version Steiner's nose does not resemble either of the descriptions which Hodges and Lehman attrib- uted to Levdansky Levdansky and Lehman are not ethnically Jewish, and I see no reason to suppose that Hodges is Jewish , 19.The-testimony.of Hodges and Hembree is consistent with either-ver- sion. As to Lehman's testimony in this connection , see supra fn 12 BATAVIA NURSING INN Steiner could not recall . 20 In view of these inconsisten- cies, and for demeanor reasons, I discredit the testimony in this paragraph to the effect-that while in the activities room, Hodges and Jones restrained Steiner before or after he hit Levdansky. My finding that the Steiner-Levdansky encounter took place before the final count and the signing of the tally is based on the testimony of Levdansky, Lawson, Hodges, Lehman, and Hembree. Steiner testified that the encoun- ter happened after the counting was over and ("I think") while Roberts was "packing up to go home" and after the tally had been signed. For demeanor reasons, I reject Steiner's wholly uncorroborated testimony to this. effect. C. Analysis and Conclusions An employer violates Section 8(a)(1) of the Act by as- saulting a union representative in the presence of one or more employees under circumstances where an onlooker would likely infer from the -assault that the employer would also retaliate in some fashion against an employee who supported the union. NLRB v. Village IX, Inc., 723 F.2d 1360, 1365 (7th Cir. 1983); Heavenly Valley Ski Area, 215 NLRB 359 (1974), enfd. 552 F.2d 269 (9th -Cir. 1977); Martin Arsham Sewing Co., 244 NLRB 918, 922 (1979); Kelco Roofing, 268 NLRB 456, 463 (1983). I find that Company Attorney Steiner's assault on Union Rep- resentative Levdansky did in fact occur under such cir- cumstances. In the activities room just before the assault, Administrator Hodges and Facility Coordinator Lehman, together with Steiner, had displayed to the 'employees present Respondent's open satisfaction at the Union's defeat. Particularly in view of such conduct, the events in that room immediately -thereafter would reasonably lead employees to believe that Steiner assaulted Lev- dansky because of resentment at his union campaign lit- erature and at the fact that he had tried to organize Re- spondent's operation ("Who do you think you are, mess- ing around with people's lives?"). Further, I find that employees Lawson and Harris, who were among the em- ployees who witnessed the assault and also attended the preelection conference that morning, 'would likely be re- inforced in this belief by Steiner's and Levdansky's re- marks during that conference: At that time, Steiner's complaints to Levdansky were based entirely on: the Union's campaign literature and (so far as the record shows) Levdansky's remarks to Steiner were directed en- tirely to Levdansky's plans to engage in union organiza- tional activity elsewhere. Moreover, I conclude that the- employees who viewed Steiner's assault on Levdansky would likely have continued to believe that Steiner was motivated by- Levdansky's campaign literature even if the employees had been aware of Levdansky's mouthed obscenity to Steiner and 'of the Steiner-Levdansky' con- versations, earlier that day, where no. employees. were. present; these conversations had dealt entirely with,the Union's literature, the Union's campaign, and the elec- tion, including Steiner's recommendation (rejected by' 20 The credible evidence shows that Hodges, Lehman, and Jones all left the room with Levdansky So far as the record shows, Board Agent Roberts (who had custody" of and was-counting the ballots) and Steiner were the only other males present 891 Levdansky) that Levdansky become a management con- sultant in representation elections. Accordingly, and be- cause it cannot reasonably be urged that the assault by Steiner was justified by any misconduct in which Lev- dansky in fact engaged, I need not and do not consider whether circumstances not known to employees could constitute a defense to the kind of 8(a)(1) violation al- leged here. 21 - Further, I agree with the General Counsel and the Union that Respondent is answerable for Steiner's con- duct. The law firm in which Steiner is a partner was re- tained by Respondent to represent it in all legal matters pertaining to the representation case. Steiner was lead counsel in such representation of Respondent. He repre- sented Respondent in negotiating and executing the stip- ulation which led to the election. He represented and talked on behalf of Respondent during the preelection conference, held the morning of the election, which was attended by four employees, including two (Lawson and Harris) who later witnessed the assault. Hodges admitted that apart from a couple of occasions when he asked Levdansky to leave the facility, all of Respond`ent's con- versations with Levdansky were conducted through Steiner. Thus, ,Hodges admitted that Steiner was acting on Respondent's behalf when, in the presence of employ- ee Hembree (who witnessed the assault), Steiner refused to permit Levdansky to enter the activities room (in Re- spondent's facility) during the voting; when Steiner per- mitted Hembree to enter in order to substitute for one of the Union's observers; and when Steiner then took Lev- dansky by the arm and walked him out the door to the facility. That afternoon, when Levdansky reentered the facility at a time when all the physical arrangements for the afternoon balloting had been completed, Steiner or- dered him to get out at once, grabbed his arm, and dragged him a couple of steps, while Administrator Hodges threatened to call the police and have Lev- dansky' arrestedfor' trespassing.. After the polls were closed, Steiner-told Hodges (in the presence of the 10 employees who witnessed the assault) to get the Town- leys, out of the room, and Hodges did so. The assault took 'place at a highly significant stage in the representa- tion case process-namely, the final ballot count. After Steiner struck Levdansky, Hodges and Facility Coordi- nator Lehman told Levdansky, and not Steiner, to leave, Lehman escorted Levdanksy, and not Steiner, out of the activities room and out of the facility; and Respondent permitted Steiner to remain, in the building. Further, Re- spondent never apologized to any employee about the in- cident, or told any employee that Respondent had.noth- ing to do, with, it. Finally, Respondent paid Steiner for his services that. day, and at all times thereafter contin- ued to retain ;him - as counsel. The foregoing evidence persuades me that the assault,by Steiner was effected in furtherance of Respondent's, interest. and was within the general scope of the authority attributed to him. Accord- ingly, I find that Respondent is answerable for such con- 21 Cf Village IX,'supra, 723 F 2d at 1365, Fairleigh Dickinson Universi- ty, 264 NLRB 725 fn 1 (1982), enfd 732 F 2d'146 (3d Cir 1984) 892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD duct by Steiner. Bio-Medical of Puerto Rico, 269 NLRB 827 (1984); Gourmet-Foods, 270 NLRB 578 (1984). - For the foregoing reasons, I find that the assault by Company Attorney Steiner on Union_ Representative Levdansky in employees' presence constituted an 8(a)(1) violation by Respondent. No different result is suggested by Howell Chevrolet Co., 95 NLRB 410, 412, 424 (1951), enfd. 204 F.2d 79 (9th Cir. 1953), affd. 346 U.S. 482 (1953). The attorney in that case did not imply any retal- iation against the employees of the respondent in that case; rather, he said that "if the union wanted to play rough," as it allegedly had in trying to organize other employers, "he would play rough also," and that he per- sonally intended to sue'the union for libel. CONCLUSIONS OF LAW 1. Respondent • is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. Respondent has violated Section 8(a)(1) of the Act, through Julius M. Steiner by assaulting a representative of the Union in the presence of employees. 4. The foregoing unfair labor practices affect com- merce within the meaning of the Act." -' THE REMEDY Having found that Respondent has violated the Act in certain respects, I shall recommend that it be required to cease and desist from such conduct, and like or related conduct. The Union's request that Respondent be re- quired to pay the Union its reasonable legal fees is denied, on the ground that Respondent's defenses are not frivolous and turn partly on credibility issues. Time Chev- rolet, 242 NLRB 625, 631 (1979), affd. in this respect 659 F.2d 1006 (9th Cir. 1981); Glenside Hospital, 234 NLRB 62 (1978); Eliason Corp., 256 NLRB 1121, 1122 fn. 9 (1981), remanded on other grounds 688 F.2d 22 (6th Cir. 1982). The Union's request for a-requirement that Re- spondent afford a union organizer access to Respondent's premises, and the opportunity to address. Respondent's employees for a reasonable period on company time, is denied on the ground that the unfair labor practices herein are not so aggravated as to warrant unusual reme- dial action, and "that the Union has not shown that it has no viable alternative means for organizational access to employees. Tasty Box" Lunch Co., 175 NLRB 44 (1969); Greenfield Mfg. Co., '199 NLRB 756, 757 fn. 7 (1972). The Union's request that Respondent be required to mail a copy of the notice to each present employee, and to each employee employed at "the time of the assault, is denied, on the ground that the Union has failed to show that the notice would not be adequately exposed by-com- pliance with the notice-posting order. Newport News Shipbuilding Co., 236 NLRB 1499 fn 1, 1509 (1978). The -Union's request that Respondent be required to read the notice aloud to its present employees is rejected for the same reason, and for the further reason that there is no evidence that the unfair labor practice was committed pursuant-to orders from Respondent's top management. Cf. F. W.I.L. Lundy Bros. Restaurant, 248 NLRB 415, 416 (1980). The conventional notice-posting order will be recommended. " On these findings of .fact and conclusions of law and on the entire record, I issue the following recommend- ed22 - ORDER The Respondent, Batavia Nursing and Convalescent Inn, Batavia, Ohio, its officers, agents, successors, and as- signs, shall - 1. Cease and desist from - (a) Assaulting representatives of National Union of Hospital, & Health Employees, District 1199, WV/KY/OH, ,Retail, Wholesale & Department Store Union, AFL-CIO, or any other labor organization, in the presence of employees. ' (b) In any like or related manner interfering with, re- straining, or coercing -employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act. (a) Post at its Batavia, Ohio facility copies of the at- tached notice marked "Appendix."23 Copies of the notice, on forms provided by the Regional Director for Region 9, after being signed by the Respondent's author- ized representative, shall-be posted by. the Respondent immediately upon receipt and maintained for 60 consecu- tive days in conspicuous places including all -places where notices to 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. (b) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 22 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 pur- poses 23 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 Na- tional Labor Relations Board " shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation- al 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 or- dered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize " To form, join, or assist any union - BATAVIA NURSING INN 893 To bargain collectively through representatives of their own choice . To act. together for -other mutual aid or protec- ,tion - To choose not to engage in any of these protect- ed concerted activities. To refrain from the exercise of any or all such activities except to the extent that they may be re- quired to become and remain union members in order to keep their jobs under a lawful union-securi- ty contract. WE WILL NOT assault 'representatives of National Union of Hospital & Health Care Employees , District 1199, WV/KY/OH, Retail, .Wholesale & Department Store Union , AFL-CIO, or any other union, in the pres- ence of employees. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the -exercise of their rights under the Act. i t' _ It f4 '.- BATAVIA NURSING AND CONVALESCENT INN f i 1 7 I