Flatbush Manor Care Center

FLATBUSH MANOR CARE CENTER 457 Flatbush Manor Care Center and Local 144, Hotel, Hospital, Nursing Home and Allied Services Union, Service Employee International Union, AFL-CIO. Flatbush Manor Care Center and Local 144, Hotel, Hospital, Nursing Home and Allied Services Union, Service Employees International Union, AFL-CIO and Local 1115, Nursing Home and Hospital Employees Union , a Division of 1115, Joint Board, Party in Interest Local 1115, Nursing Home and Hospital Employees Union, a Division of 1115, Joint Board and Local 144, Hotel, Hospital, Nursing Home and Allied Services Union, Service Employees Inter- national Union, AFL-CIO Flatbush Manor Care Center and Local 6, Interna- tional Federation of Health Professionals, ILA, AFL-CIO Local 1115, Nursing Home and Hospital Employees Union, a Division of 1115, Joint Board and Local 6, International Federation of Health Professionals, ILA, AFL-CIO. Cases 29-CA- 9457, 29-CA-9462, 29-CA-9708, 29-CB-4791, 29-CA-9772, and 29-CB-4943 16 December 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND STEPHENS On 26 January 1984 Administrative Law Judge Steven Davis issued the attached decision . The Re- spondents Flatbush Manor Care Center and Local 1115, Nursing Home and Hospital Employees Union, a Division of 1115, Joint Board each filed exceptions with supporting briefs . The General Counsel filed an answering brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. 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, and conclusions only to the extent consistent with this Decision and Order. We agree with the judge's finding that the Re- spondent Local 1115 violated Section 8(b)(1)(A) by making payments of money to employees in the technical, service, and maintenance unit prior to a Board-conducted representation election on 1 Oc- tober 1981 . The judge also found that the Respond- ent Employer violated Section 8(a)(2) and the Re- spondent Union violated Section 8(b)(1)(A) based on the Employer's recognition of Local 11151 in November 1981 and their execution of collective- bargaining agreements in December 1981 and Janu- ary 1982 following the October election. However, we disagree with these findings for the reasons set forth below. The judge further found that the Em- ployer violated Section 8(a)(2) by extending recog- nition on 20 January 1982 to Local 1115 for a unit of registered nurses at a time when Local 1115 did not represent a majority of such employees. We find that a technical violation did occur but, for the reasons set forth below, find that under the circum- stances present here the question concerning repre- sentation is best settled by permitting the Regional Director to open and count the ballots impounded following a 13 April 1982 election and to take fur- ther appropriate action.2 As found by the judge, Local 1115 filed a repre- sentation petition on 10 September 1981 seeking to represent a unit of technical , service, and mainte- nance employees (blue collar unit). The following day the parties executed a Stipulated Election Agreement. The election was scheduled for 10 Oc- tober 1981 with the eligibility period ending 12 September. During the preelection period Local 1115 made certain monetary payments to employ- ees that we find violated Section 8(b)(1)(A) for the reasons set forth by the judge. During the period from September to November 1981 Local 1115 paid a total of $2241 to 48 em- ployees in the blue collar unit in amounts ranging from $4.80 to $114. Forty-eight of the 64 employ- ees on the Excelsior list received payments. Forty- three of them received payments after the petition was filed and prior to the 1 October election. Some employees were told by Local 1115 representatives that the money they received was to supplement their salaries, which were too low, and some were told the money was to reimburse them for lunch and carfare. Other employees had no conversations at all with Local 1115 representatives, "voted their mind" in the election, and had not signed cards for Local 1115. The judge noted that reported Board cases deal- ing with preelection payments by unions to em- ployees have arisen in the election objections area rather than as 8(b)(1)(A) allegations. He addressed the 8(b)(1)(A) issue that he viewed as having been left open by the Supreme Court in NLRB v. Savair Mfg. Co., 414 U.S. 270 (1973). He found no evi- dence that any payment was expressly conditioned on support for Local 1115 or that any employee believed he was compelled to vote for Local 1115 2 No exceptions were filed to the j udge's dismissal of the allegation that the Respondent Employer violated Sec 8(a)(3) in discharging em- I The unit consists of technical, service, and maintenance employees. ployee Faith McDonald. 287 NLRB No. 48 458 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD because of receiving the money. Further all author- ization cards obtained prior to the election were se- cured before the first payments. However, the judge rejected Local 1115's argu- ment that, at worst, its conduct constituted "inter- ference" and thus does not reach the level of an 8(b)(1)(A) violation that requires "restraint or coer- cion." The judge found no, legitimate reason for making the payments. He found that not all em- ployees receiving them had complained of low wages and that no statements of expenses for meals and transportation were requested from the recipi- ents. We agree with the judge's conclusion that the 8(b)(1)(A) standard was met in that a large number of employees were given the impression shortly before the election that the supplement to their wages would continue if Local 1115 were selected as the bargaining representative. These payments thus tended to restrain and coerce employees from voting against Local 1115. Local 1115 won the election and on 15 October 1981 was certified by the Regional Director. Pursu- ant to the certification the Employer recognized Local 1115 and on 1 December 1981 and 4 January 1982 entered into collective-bargaining agreements with it. On 16 March 1982, " following receipt of a letter from Charging Party Local 144, the Regional Di- rector issued a Notice to Show Cause why the cer- tification should not be revoked. On 12 January Local 144 had 'filed 8(a)(2) and 8(b)(1)(A) charges asserting that the recognition extended by the Em- ployer and accepted by Local 1115 was premature and that the payments to employees by Local 1115 were unlawful. The Regional Director also based his Notice to Show Cause on Local 144's further assertions that the Employer and Local 1115 fraud- ulently induced the Board to issue the certification and that the Employer had "packed" or "padded" the Excelsior list. The record shows that the Regional Director scheduled a hearing on his Notice to Show Cause., Prior to the commencement of the hearing Local 1115 filed a motion to withdraw its petition and the parties stipulated that the certification in Case 29- RC-5535 be revoked and declared null and void. The Regional Director then ordered that the Certi- fication of Representative issued on 15 October 1981 be revoked retroactive to that date. The judge addressed the premature recognition issue raised by the complaint in Cases 29-CA-9457 and 29-CB-4791. In finding the reciprocal viola- tions, he applied the tests set forth in Herman Bros., 264 NLRB 439 (1982). The judge found that at the time of recognition the Employer was not engaged in normal business operations and had not em- ployed a substantial and representative complement of-its projected work force. The judge's analysis overlooked a critical factor in that he did not consider the effect of the Board's representation proceedings on Local 1115's status at the time of recognition, as a result of which it became a Board-certified representative of the unit employees. It is important to note that the judge found no -merit to the General Counsel's claims that the Employer and Local 1115 engaged in a collusive scheme to secure certification and that the Employer "packed" the Excelsior list. We are fully aware that the certification was later revoked retroactively to include the period of recognition and bargaining.3 However, viewing the situation as the parties saw it immediately following the 15 Oc- tober 1981 certification, and in the absence of fraud or collusion, we shall not find premature recogni- tion violations when either of the parties by acting otherwise could have subjected itself to unfair labor practice charges based on a refusal to bargain in the presence of a then-valid Board certification.4 Turning to the 8(a)(2) allegation in Case 29-CA- 9708 we agree with the judge that the case turns on the application of the Board's dual-card theory. Local 1115 began an organizing campaign among the Employer's 11 registered nurses during Decem- ber 1981. By 18 January 1982 Local 1115 had ob- tained signed - authorization cards from a majority of the registered nurses and on •that basis made a demand for recognition. Following a card count, the Employer recognized Local 1115 on 20 Janu- ary. On 25 January Local 144 filed a petition in Case 29-RC-5637 with majority support in authori- zation cards obtained prior to Local 1115's recogni- tion. We agree with the judge's reasoning in find- ing that five of the six cards submitted to the Em- ployer by Local 1115 may not be counted toward the majority status of that union because the sign- ers of those cards also signed cards for Local 144. Thus, in the absence of a majority for Local 1115 on 20 January, we find, as did the Midge, that Re- spondent Employer violated Section 8(a)(2). See Bruckner Nursing Home, 262 NLRB 955 at fn. 13 (1982), citing Ladies Garment Workers (Bernhard- Altmann Texas Corp.) v. NLRB, 366 U.S. 731 (1961). In accord with this policy, we find that an election is the best means of resolving the compet- ing claims of the rival unions in this case. As the 3 We give no weight to the fact that the revocation occurred prior to any hearing on the merits of the allegations underlying the Notice to Show Cause 4 We therefore also dismiss the derivative allegations that the Employ- er violated Sec 8(a)(3) and that Local 1115 violated Sec 8(b)(2) by in- cluding union-security and dues-checkoff provisions in their collective- bargaining agreements FLATBUSH MANOR CARE CENTER election has already been conducted, 5 we find that the recognition of Local 1115, although technically in contravention of the Act, does not warrant a remedy particularly when there is no evidence that the Employer ever engaged in bargaining with Local 1115. Accordingly we shall dismiss the alle- gation. 6 ORDER The National Labor Relations Board orders that the Respondent, Local 1115, Nursing Home and Hospital Employees Union, A Division of 1115, Joint Board, its officers, agents, and representa- tives, shall 1. Cease and desist from (a) Making payments of money to employees of Flatbush Manor Care Center for the purpose of co- ercing such employees prior to any Board-conduct- ed election. (b) In any like or related manner restraining or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Post in conspicuous places in its business office, meeting halls, and places where notices to its members are customarily posted copies of the attached notice marked "Appendix A."7 Copies of the notice, on forms provided by the Regional Di- rector for Region 29, after being signed by the Re- spondent's authorized representative, shall be posted by the Respondent immediately upon re- ceipt and maintained for 60 consecutive days in conspicuous places including all places where no- tices to members are customarily posted . Reasona- ble steps shall be taken by the Respondent to ensure that the notices are not altered , defaced, or covered by any other material. Copies of the notice 6 Pursuant to the petition the Regional Director issued a Decision and Direction of Election Both Intervenor Local 1115 and the Employer filed requests for review. The election was held on 13 April 1982 and the ballots were impounded pending the Board's disposition of the requests for review. The Board denied review of all issues on 29 April 1982. On 19 May Local 144 filed the 8(a)(2) charges in the instant case and the Regional Director viewed these charges as blocking the further process- ing of the representation case. On 16 July 1982 the Board issued its deci- sion in Bruckner Nursing Home, supra On 5 August Local 1115 filed a request for reconsideration of the Board 's denial of its initial request for review based on Bruckner. On 10 September 1982 the Board denied the request as lacking in merit. There is no evidence that professionals other than registered nurses were employed by the Employer . Further, no party has challenged the appropriateness of the unit. 6 In view of the fact that we have dismissed the complaint concerning Respondent Flatbush Manor Care Center, the Regional Director for Region 29 may open and count the ballots in Case 29-RC-5637, furnish a tally to the parties, and take further appropriate action 7 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 Nation- al 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 " 459 shall also be posted at the Respondent Employer's place of business if it is willing. (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 RECOMMENDED that the com- plaint regarding Respondent Flatbush Manor Care Center is dismissed. MEMBER STEPHENS, dissenting in part. I agree with the majority's adoption of the judge's finding that the Respondent Local 1115 violated Section 8(b)(1)(A) by making payments to employees of Flatbush Manor Care Center prior to a Board-conducted election in the unit of technical, service, and maintenance employees styled by the judge as the "blue collar" unit. However, I dissent from my colleagues' reversal of the premature rec- ognition violations found by the judge with respect to the blue collar unit and with their dismissal of the 8(a)(2) allegation with respect to the registered nurses unit. Concerning the blue collar unit, my colleagues do not quarrel with the judge's finding, with which I also agree, that under Herman Bros., 264 NLRB 439 (1982), Local 1115 was a minority representa- tive at the time of recognition and hence the recog- nition was in fact premature. In my view, Ladies Garment Workers (BernhardAltmann Corp.) v. NLRB, 366 U.S. 731 ( 1961), plainly controls here- a good-faith belief that a union is the majority rep- resentative is no defense to 8(a)(2) and 8(b)(1)(A) allegations of extending recognition to a minority union. Although they do not say so explicitly, the majority would recognize an exception to Bern- hard-Altmann in which the parties' good-faith reli- ance is based on a Board certification. This posi- tion, however, begs the question of whether the certification had been properly granted in the first instance. Here it was not, as it was later retroac- tively revoked by the Regional Director at the re- quest of the parties. (In fact it was revoked on the basis of facts that had been known to the parties at the time recognition was extended.) In Rainey Security Agency, 274 NLRB 269, 281 (1985), the Board adopted a finding of an 8(a)(2) violation that the judge had explained as follows: [T]he law requires that there must in fact have been majority support at the time of rec- ognition. That fact of majority support will or- dinarily be presumed, as all actions such as recognition are normally presumed to be con- sistent with the law. But once there is some showing that any earlier-gathered majority, however manifested, might have been obtained or maintained by improper influence, the 460 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Board may, in the exercise of its reasoned judgment, ^ require the parties to divorce until properly wed. [Emphasis added.] On this basis I would therefore adopt the judge's findings of 8(a)(2) and 8(b)(1)(A) violations and the corresponding derivative violations of Sections 8(a)(3) and 8(b)(2). Next, concerning the nurses unit, I agree with my colleagues' adoption of the judge's dual-card analysis and his subsequent finding of an 8(a)(2) violation based on Bernhard-Altmann. I part com- pany with, them, however, when they not only de- cline to meet the Board's 10(c) obligation to remedy the unfair labor practice, but decide actual- ly to dismiss the complaint. The judge, in my view, recommended the appropriate remedy for this 8(a)(2) violation-order the Respondent employer to withdraw and withhold recognition from the un- lawfully recognized Local 1115 until that union is certified by the Board as the exclusive representa- tive of the nurses. I would adopt, the judge's rec- ommended Order. The majority's dismissal of what they concede is a meritorious complaint allegation is based on their application of Bruckner Nursing Home, 262 NLRB 955 (1982). They would rely on the election al- ready held as being in accord with Bruckner's man- date, given a properly supported petition by one unit, for an election to resolve competing majority claims of rival unions. It is important, however, to recognize that Bruckner, in espousing an election to resolve a representation issue 'in which rival unions both claim majority support, is predicated on the presence of actual uncoerced majority support for the union recognized before a rival petition is filed. Bruckner did not contemplate the situation present- ed here, namely, an 8(a)(2) charge filed after a peti- tion was filed in a two-union initial organizing con- text, alleging that the employer had accorded pre- petition recognition to a labor organization that did not actually have majority support. More specifi- cally, Bruckner certainly does not cover the situa= tion in which the petitioner, here Local 144, filed postelection but pretally charges that the Respond- ent Employer violated Section 8(a)(2) by prepeti- tion recognition of Local 1115. Under these circumstances, the Regional Direc- tor properly exercised his discretion in deciding to hold the representation case in abeyance pending first the resolution of the 8(a)(2) charge and then a final decision on the resulting complaint. Because Case 29-RC-5637 has not been consolidated with this unfair labor practice proceeding and therefore is not now before us and because, in my view, the Respondent Employer should be ordered to take the traditional actions to remedy its 8(a)(2) viola- tion, I consider it unwise at this point to suggest 'that' the Regional Director take any particular action with respect to the representation case. I would, instead, leave it to the Regional Director, following receipt of such an order and his subse- quent consultation with the parties, to,take what- ever action he deems appropriate. APPENDIX NOTICE To MEMBERS 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 make payments of money to em- ployees of Flatbush Manor Care Center for the purpose of coercing employees prior to any Board- conducted' election. WE WILL NOT in any like or related manner re- strain or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. LOCAL 1115, NURSING HOME AND HOSPITAL EMPLOYEES UNION, A DI- VISION OF 1115, JOINT BOARD Lauren Rich, Esq., for the General Counsel. Morris Tuchman, Esq. (Gluck and Tuchman, Esqs.), of New York, New York, for the Respondent Employer. Richard Greenspan, Esq. (Charles R. Katz, P.C.), of New York, New York, for Respondent Union. Daniel Engelstein, Esq. (Vladeck, Waldman, Elias &' En- gelhard, P. C ), of New York, New York, for Local 144. DECISION STATEMENT OF THE CASE STEVEN DAVIs, Administrative Law Judge. Pursuant to various charges filed by Local 144, Hotel, Hospital, Nursing Home and Allied Services Union, Service Em- ployees International Union, AFL-CIO (Local 144) and by Local 6, International Federation of Health Profes- sionals, ILA, AFL-CIO (Local 6), complaints, later con- solidated for hearing were issued by Region 29 of the National Labor Relations Board against Flatbush Manor Care Center (Respondent Employer or the Employer) and against Local 1115, Nursing Home & Hospital Em- ployees Union, a Division of 1115, Joint Board '(Re- spondent Union or Local 1115). Specifically, the complaint in Case 29-CA-9462, which was issued on March 17, 1982, based on a charge filed by Local 144 on February 1, 1982, alleged that the Employer violated Section 8(a)(1) and (3) of the Act by discharging Faith McDonald on January 29, 1982, be- FLATBUSH MANOR CARE CENTER 461 cause of her activities in behalf of Local 144. The com- plaint in Case 29-CA-9708, which was issued on August 10, 1982, based on a charge filed by Local 144 on May 19, 1982, alleged that the Employer violated Section 8(a)(1) and (2) of the Act on January 20, 1982, by grant- ing recognition to Local 1115 in a unit of registered nurses employed by the Employer, at a time when Local 1115 did not represent an uncoerced majority of the em- ployees in the registered nurses unit. The complaint in Cases 29-CA-9457 and 29-CB-4791, which was issued on September 29, 1982 , as amended at the hearing, based on charges filed by Local 144 on Jan- uary 29, 1982, alleged that the Employer violated Sec- tion 8(a)(1), (2), and (3) and Local 1115 violated Section 8(b)(1)(A) and 8(b)(2) of the Act by engaging in certain of the following conduct: (a) on or after October 15, 1981, the Employer recognized Local 1115 as the collec- tive-bargaining representative of the employees in a unit consisting of full-time and regular part-time technical employees and service and maintenance employees, in- cluding licensed practical nurses, nurses aides, dietary employees, and housekeeping employees (blue collar unit), (b) about December 1, 1981 and about January 4, 1982, the Employer and Local 1115 entered into separate collective-bargaining agreements, and since those dates, have maintained and enforced them, which cover certain terms and conditions of employment of the blue collar employees, and which agreements contain union-security and dues-checkoff provisions, (c) recognition was grant- ed and the collective-bargaining agreements were en- tered into as described above, notwithstanding that at that time Local 1115 did not represent and has not repre- sented an uncoerced majority of the blue collar employ- ees, (d) in August through September 1981, Local 1115 made direct monetary payments to the blue collar em- ployees in order to induce them to become members of Local 1115 and to induce them to vote for Local 1115 in a Board-conducted election.' The complaint in Cases 29-CA-9772 and 29-CB-4943, which was issued on October 7, 1982, as amended at the hearing, based on charges filed by Local 6 on June 16 and 18, 1982, was identical in all material respects to the complaint in Cases 29-CA-9457 and 29-CB-4791, dis- cussed above.2 The hearing was held before me in Brooklyn, New York, on various dates in October through December 1982. ' Respondent Union moves to dismiss the complaints on the ground that the charges did not provide with sufficient specificity the basis of the complaints and without such notice the complaints are barred by Sec. 10(b) of the Act. I deny the motion. A charge is not a pleading and does not require the specificity of a pleading . The complaint is not restricted to the precise allegations of the charge , and it may allege any matter closely related to or growing out of the charged conduct or related to the controversy that produced the charge . Flex Plastics, 262 NLRB 651, 652 (1982). 2 I grant the Employer's motion to dismiss, only as to the allegation concerning the alleged unlawful payments made by Local 115 from Sep- tember to November 1981. These acts occurred more than 6 months prior to the filing of the charges by Local 6 on June 16 and 18 , 1982, and is therefore barred by Sec. 10(b) of the Act. The other allegations of the complaint concern the nonrepresentative status of Local 1115 that oc- curred within the 10(b) period and will not be dismissed On the entire record, including my observation of the demeanor of the witnesses , and after due consideration of the briefs filed by all parties , I make the following FINDINGS OF FACT I. JURISDICTION Respondent Employer, a New York corporation, having its principal office and place of business at 2107 Ditmas Avenue, Brooklyn, New York, is engaged as a health care institution in the operation of a nursing home providing in-patient medical and professional care serv- ices. Based on a projection of its operations during the calendar year 1982, Respondent Employer, in the course and conduct of its operations , will derive annual gross revenues in excess of $2,500,000 and will purchase and receive at its Brooklyn, New York facility, food, drugs, medical, and other supplies valued in excess of $50,000 directly in interstate commerce from points outside the State of New York. Respondent Employer admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that Locals 6, 144, and 1115 are labor organizations witin the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Basic Facts In June 1980, the Employer applied to the New York State Health Department for a license to operate a nurs- ing home, and received such license in December 1980. The building occupied by the Employer contains five pa- tient floors for administrative offices and a basement. It is expected to have 200 patients when fully operational. The facility received its first patient on November 23, 1981. The first floor was filled with patients in early De- cember 1981 . The second floor was opened and had a full complement of patients in late December 1981. The third floor was opened in late June or early July 1982 and was filled 3 weeks later. The fourth floor was opened in September. At the time of the hearing, in De- cember 1982, the fifth floor had not yet opened for pa- tients. Prior to the admission of patients, much repair work needed to be done to prepare the facility and, according- ly, employees were hired in August and September 1981. On September 10, 1981 , Local 1115 filed a petition3 to represent certain employees. On September 16, the Em- ployer and Local 1115 executed a stipulation for certifi- cation upon consent election in which it was agreed that an election would be held on October 1, and that those eligible to vote would be employees upon the payroll for the period ending September 12. During the campaign, Local 1115 made certain payments to employees. The result of the election was that Local 1115 was selected by a vote of 51 to 1. On October 15, Local 1115 was certified as the exclu- sive representative of the employees in a unit consisting of all full-time and regular part-time technical employees 8 Case 29-RC-5535. 462 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD and service and maintenance employees, including li- censed practical nurses, nurses aides, dietary employees, and housekeeping employees (blue collar unit) and there- after on November 12, 1981, the Employer recognized Local 1115, based on the certification. Subsequently, col- lective-bargaining agreements were executed on Decem- ber 1, 1981, and January 4, 1982. Beginning in December 1981, Local 144 attempted to organize the employees of the Employer , and obtained certain signed authorization cards from them . However, on January 18, 1982, Local 1115 demanded such recogni- tion based on a card check of certain Local 1115 authori- zation cards signed by registered nurses. On January 25, 1982, Local 144 filed a petition for an election among the Employer's registered nurses.4 The Employer and Local 1115 alleged that the recognition of Local 1115 constituted a bar to the processing of the pe- tition, but the Regional Director , affirmed by the Board, directed that an election be held.5 On January 29, employee Faith McDonald was dis- charged. On March 16, based on a letter by Local 144, the Re- gional Director issued an order to show cause why the certification issued to Local 1115 in the blue collar unit should not be revoked. A hearing was held at which Local 1115 moved to withdraw its petition in the blue collar unit, on which it had received certification.6 On September 23, 1982, the Regional Director revoked the certification of Local 1115 in the blue collar unit retroac- tive to October 15, 1981. B. The Issues 1. The blue collar unit a. Payments by Local 1115 to employees The complaint alleges that Local 1115 made direct monetary payments to employees from August to Sep- tember 1981 in order to induce them to become members of Local 1115 and to vote for Local 1115 in the election held on October 1. The General Counsel argues that the payments violat- ed Section 8(b)(1)(A) of the Act because they were made to induce employees to vote for Local 1115 or, in the ab- sence of proof of such intent, had a tendency to influ- ence the outcome of the election and therefore tended to coerce employees in their freedom of choice. Local 1115 admits making the payments to the em- ployees, which were drawn on that Union's checks. However, it claims that the payments were legitimately made when it received complaints from the employees whom it solicited to organize the Employer that their wages were too low. It further argues that the money was paid to employees regardless of their support for Local 1115 and was not conditioned on a vote for it. 4 Case 29-RC-5637. 5 The ballots have been impounded and the case is blocked pending the outcome of the instant matter. ° Case 29-RC-5535 (1) Facts Local 1115 paid a total of $2241.32 to 48 employees, in payments ranging from $4.80 to $ 114.7 The payments were made from September 22, 1981 , to November 25, 1981. The names of the 48 employees receiving the money were all on the Excelsior list provided by the Em- ployer. Sixteen other persons on the list did not receive any money from Local 1115.8 A petition was filed by Local 1115 on September 10, 1981, and the election was held on October 1.8 Employees Norma Michel , George Suarez, and Katie Teagle testified consistently that they were asked by De Laurentis if they would apply for jobs at the Employer to help him organize it. They were, at the time, em- ployed elsewhere in institutions represented by Local 1115. They agreed, applied for, and began work at the Employer. They referred others to work there, some of whom were accepted for employment, and they also so- licited employees to sign cards for Local 1115 . Shortly after they began work at the Employer, Michel, San- tiago, and Teagle told De Laurentis that the wages paid by the Employer (about $3.80 per hour) were too low, and also reported to him that the employees they re- ferred complained too about the depressed pay.10 De Laurentis told Michel, Santiago, and Teagle that the Union would pay them and the people they referred $1.20 per hour for lunch and carfare."" They each checked the sign-in book and reported to De Laurentis the hours the employees worked each day. Employee Shirley Sargeant testified that she was told by Local 1115 business agent Diane Dominowicz to apply for a job at the Employer if she wished. Sargeant did so, and was told by Dominowicz to send the pays- tubs she received from the Employer to Local 1115, and the Union would give her additional money so that her total wage would be $4.95 per hour.12 Employee Clar- ence Davis was also told by Dominowicz that the Union would pay him the difference between his salary, which was $3.50, and $5. Employee Allen Shannon testified that a Local 1115 representative told him that jobs were available at the 7 See App. 1 for a list of names of the employees who received checks, the amounts they received , and the dates of the checks. 8 Alex De Laurentis, the vice president of Local 1115 , testified that the payments of $54.81 to Christine Coleman and $54.41 to ledma Manswell on October 15, and the payments of $48 to Norma Michel and $114 to George Suarez on October 5 were made because it is that Union 's prac- tice to give I day's pay to its election observers, and those people were the Union's designees. However, he testified on cross-examination that the Union had only one observer, Michel, present at the election and the other three were alternate observers . He also testified that he designated only one chief alternate observer , Lynette Samuels, on a form submitted prior to the election . She received $42.60 on October 15. De Laurentis further stated that the $114 payment to Suarez represented 2 days' work because (a) he was an alternate observer and (b) he performed certain or- ganizing work for Local 1115. ° The bulk of the payments were made on September 22 and October 2 and 5. 10 Sargeant's salary was about $3.50 per hour. I t Teagle stated that De Laurentis said that he would pay all the em- ployees. 17 Employee Roberto Manzanares told De Laurentis that the Employ- er's wages were too low. De Laurentis replied that Local 1115 would pay him $1 .20 per hour more for lunch and carfare FLATBUSH MANOR CARE CENTER 463 Employer. He applied for and received a part-time job, working only 1 day per week. About 1 week before the election he was told by Local 1115 agent Dominowicz that if he took the day off from his regular employer, Consolidated Maintenance, at Rockaway Care Center, and voted in the election at the Employer , he would be paid for taking the day off. Thereafter, on October 15, a check was issued by Local 1115 to Shannon for $28. Carmen Oquendo testified that she was told by fellow employee Sebastian Santiago that the checks she re- ceived from Local 1115 were for the purpose of increas- ing her wage from $3.80 per hour to $5 per hour, and were intended for reinbursement for carfare and lunch. Oquendo did not speak to anyone from Local 1115 before she received the checks. A few days before the election a meeting was held at the home of employee Castro. De Laurentis and about 26 workers were present. A Local 1115 campaign leaflet was distributed, which contained a marked sample ballot and urged employees to vote for Local 1115 in the elec- tion on October 1. Employee Steven Harrison testified that De Laurentis told him at the meeting that the checks he received from Local 1115 were given because the Employer was not paying its employees the "proper amount," and therefore the Union was making up the difference between the hourly wages paid and $5 per hour. Other employee testimony was adduced to the effect that certain employees who received payments from Local 1115 (a) had no conversation with union represent- atives concerning the money or the reason they received it, (b) were not told to vote for Local 1115 in the elec- tion, (c) voted their mind in the election, and (d) had not signed cards for Local 1115. (2) Analysis Apparently the only cases that have decided on the merits the issue of preelection payments to voters by unions have arisen as objections to elections , and not as violations of Section 8(b)(1)(A).13 In the major case on the issue of preelection benefits to employees by a union, NLRB v. Savair Mfg. Co.,14 the Supreme Court held that a waiver of union initiation fees for only those employees signing authorization cards before the election impairs employees ' free choice in the election. Union cards so obtained would constitute "en- dorsement," serve to "paint a false picture of employee support," and perhaps create a feeling of obligation to vote for the Union in the election . 15 The Court made it clear that only an across-the-board offer to waive such fees for all employees, whether they sign cards before or after the election, is a permissible campaign tactic. The Court, however, alluded to the issue presented herein: 13 Two cases contained allegations that a waiver of initiation fees vio- lated Sec. 8(b)(1)(A). However, the complaints both were dismissed on credibility grounds. Bakery Workers Local 213 (Beatrice Foods), 261 NLRB 773, 787 (1982); Amalgamated Industrial Union. Local 76B (Univer- sity of New Haven), 246 NLRB 727, 730-731 (1979). 14 414 U.S. 270 (1973). 15 Id. at 277-278. Any procedure requiring a "fair" election must honor the right of those who oppose a union as well as those who favor it. The Act is wholly neu- tral when it comes to that basic choice. By § 7 of the Act employees have the right not only to "form, join, or assist" unions but also the right "to refrain from any or all of such activities." 29 U.S.C. § 157. An employer who promises to increase the fringe benefits by $10 for each employee who votes against the union, if the union wins the election, would cross the forbidden line under our decisions. See NLRB v. Exchange Parts Co., 375 U.S. 405. The right of employees to "form, join, or assist" labor unions guaranteed by § 7 has an express sanction in § 8(a)(1) which makes it an unfair labor practice for an employer "to interfere with, restrain, or coerce employees" in the exercise of those rights. 29 U.S.C. §§ 157, 158(a)(1). Such interference is an unfair labor practice as we held in NLRB v. Ex- change Parts Co., supra. But, as already noted, § 7 guarantees the right of employees "to refrain from any or all of such activities." Congress has also listed in § 8(b) of the Act "unfair" labor practices of unions. 29 U.S.C. § 158(b). There is no explicit provision which makes "interference" by a union with the right of an employee to "refrain" from union activities an unfair labor practice. Section 8(c), however, provides: "The expressing of any views, argument, or opin- ion, or the dissemination thereof, whether in writ- ten, printed, graphic, or visual form, shall not con- stitute or be evidence of an unfair labor practice under any of the provisions of this subchapter, if such expression contains no threat of reprisal or force or promise of benefit." .. . Whether it would be an "unfair" labor practice for a union to promise a special benefit to those who sign up for a union seems not to have been squarely re- solved. The right of a free choice is, however, inherent in the principles reflected in § 9(c)(1)(A).16 [Emphasis added.] The Court therefore put the issue squarely: "whether it would be an unfair labor practice . . . to promise a special benefit to those who sign up for a union." In the instant case, as correctly argued by Local 1115, there is no evidence that any payment was expressly conditioned on support for Local 1115, voting for it in the election; or that any employee believed that he was compelled to vote for it because of receiving money from the Union. On the contrary, it appears that all authorization cards obtained prior to the election were secured by Septem- ber 10, at least 12 days before the first payments were made by Local 1115. Moreover, there was no evidence that the employees who were paid for being alternate union observers at the election were told before the elec- tion, that they would be paid for acting in such capacity. I ° Id. at 278-279. 464 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The checks they received were all dated after the elec- tion was held. The standard in evaluating the conduct of Local 1115 is whether the payments "tended to restrain or coerce employees" in exercise of their Section 7 rights.17 There is no question but that the payments to the large number of employees on the Excelsior list tended to re- strain or coerce them in the exercise of their Section 7 right to refrain from voting for Local 1115. A payment by an employer to cause an employee to vote against a union violates Section 8(a)(1) of the Act.18 A similar act by a union would also violate Section 8(b)(1)(A). In Bernhard-Altmann, 19 the Supreme Court stated: In the Taft-Hartley Law, Congress added § 8(b)(1)(A) to the Wagner Act, prohibiting, as the Court of Appeals held, "unions from invading the rights of employees under § 7 in a fashion compara- ble to the activities of employers prohibited under § 8(a)(1)." . . . It was the intent of Congress to impose upon unions the same restrictions which the Wagner Act imposed on employers with respect to violations of employee rights.20 Local 1115 argues that Section 8(a)(1) and 8(b)(1)(A) are not coextensive because Section 8 (a)(1) prohibits "in- terference" whereas Section 8(b)(1)(A) contains no re- striction against "interference," but only prohibits union "restraint or coercion," and was designed to reach only cases involving violence, threats , and intimidation. Al- though it is true that Section 8(b)(1)(A) does not contain the word "interference," "its range of application is not limited to union conduct involving threats of violence or economic coercion."21 Omission of the words "interfere with" from Sec- tion 8(b)(1)(A) was not intended to indicate that union conduct should be measured against a less de- manding standard than employer conduct. The leg- islation as originally proposed contained these words. They were deleted because it was feared that they would unduly restrict union organization campaigns; they might be "construed to mean that any conversation, any persuasion, any urging on the part of any person, in an effort to persuade another to join a labor organization , would constitute an unfair labor practice." 93 Cong.Rec. 4399 (1947), 2 Leg. Hist. 1138 (remarks of Senator Ives). Senator Taft agreed to the deletion because he was con- vinced it would have no effect on the application of Section 8(b)(1)(A): I have consulted with the attorneys and they tell me that elimination of the words "interfere with" would not, so far as they know, have any effect on the court decisions. Eliminating those words would not make any substantial change in the meaning.. . . Id. (remarks of Senator Taft). Similarly, Senator Ball stated that "the words `interfere with ' are very vague," that even with respect to employers "no complaint is ever issued on the interference angle," and that, because union organizational activities might be affected , it is "important that such vague language be eliminated ...." 93 Cong.Rec. 4399 (1947), 2 Leg. Hist. 1139 (remarks of Senator Ball).22 No legitimate reason existed for Local 1115 to make the payments other than to attempt to cause the employ- ees receiving them to vote for it. Not all employees re- ceiving the payments complained to the Union regarding their low wages at the Employer and notwithstanding the Union's suggestion that the money be considered as compensation for meals and transportation , no statements of such expenses were requested from any employees. The payments were therefore designed to improperly cause the employees thus paid to be compelled to vote for the provider of such gifts with the effect that they were restrained and coerced from voting against Local 1115. I am aware that in the case involving preelection pay- ments by a union in representation cases involving objec- tionable conduct issues, not all such payments constitute improper conduct: Indeed, "the mere fact that a payment has been made . . . does not require a per se finding that the employee's right to make a free and uncoerced choice of a bargaining representative has been de- stroyed." 23 However, the facts of this case, involving payments to large numbers of employees on the Excelsior list shortly before the election combined with the Union's stated purpose to the employees of increasing their hourly wage, thereby undeniably left the impression that the supplement to their wages would continue if it was selected as their bargaining representative , and clear- ly tended to restrain or coerce employees in the exercise of their Section 7 rights to reject Local 1115.24 I therefore find and conclude that Local 1115 violated Section 8(b)l)(A) by its preelection payments to employ- ees. b. Recognition of Local 1115 (1) Facts The General Counsel alleges that Local 1115 was rec- ognized, and collective-bargaining agreements entered into for the blue collar unit when it did not represent an uncoerced majority of the employees in that unit.25 17 Laborers Local 496 (Newport News of Ohio), 258 NLRB 1105 In. 2 (1981). 18 Roth 's /GA Foodlmers, 259 NLRB 132, 133 (1981). 19 Ladies' Garment Workers (Bernhard-Altmann) v. NLRB, 366 U.S. 731 (1961) 20 Id at 738. 21 Helton Y. NLRB, 656 F.2d 883 (D C. Cit. 1981), revg 248 NLRB 83 (1980). 22 Id. at 889. 2a Gulf States Canners, 242 NLRB 1326, 1327 (1979) 24 The campaign document of Local 1115 distributed to a large number of employees at a meeting a few days before the election stated, inter alia: "Vote for Local 1115 for better wages and increases every 6 months." 25 The unit as set forth in the contract consists of "all employees ex- cluding registered nurses, confidential , office and clerical employees, su- pervisors, watchmen and guards." FLATBUSH MANOR CARE CENTER 465 In addition, the General Counsel argues but did not allege in the complaint that when it recognized Local 1115, the Employer did not employ a representative complement of employees.26 The critical date for determining these issues is the date that recognition was accorded . 27 Recognition was demanded by Local 1115 by letter dated October 27, 1981, in which it requested certain information concern- ing the bargaining unit and a date to begin negotiations. By letter dated November 12, 1981, the Employer re- sponded to the letter of Local 1115 by providing certain information as to unit employees . I accordingly find that the Employer recognized Local 1115 on November 12, 1981.28 The Employer received its license from the New York State Health Department in December 1980. Renova- tions to the building were completed in July or August 1981 and it was expected that patients would be admitted at that time. However, in June or July 1981, the Em- ployer requested a delay in its opening date because it was not yet ready for a preopening survey to be con- ducted by the health department. The new date for the survey was set for September 1981. In early October a new inspection date was arranged for mid -November. However, because the Employer's mortgage broker needed an earlier inspection date, the health department agreed to and did perform a full, preopening survey of the premises on October 30. Thereafter, certain minor modifications were made, and on November 17 or 18, after another inspection , permission was granted to open and admit patients on November 23, 1981. In September 1981, certain employees were hired to and did perform , on a part-time basis, maintenance; cleaning work, which included washing floors, walls, beds, windows, making beds, cleaning the kitchen; set- ting up nursing units and painting. The Employer closed for the Jewish holiday of Suc- coth on October 12, 1981, remaining closed for about 2 weeks, and then reopened in late October.29 28 The General Counsel did not amend the complaint at the hearing to allege the nonrepresentative complement issue . Evidence as to this issue was received over Respondents' objections. I find without merit their ar- guments that such evidence was improperly admitted . Respondents had notice, as early as the General Counsel's opening statement, that she in- tended to prove this issue; this matter was closely related to the question of the majority status of Local 1115, which was alleged in the complaint; and the matter was fully litigated . Although Respondents may not have chosen to present evidence as to this issue , they had an opportunity to do so as they were on notice that this was a part of the General Counsel's case. 27 Herman Bros., 264 NLRB 439, 441 ( 1982). 48 Cf Klein's Golden Manor, 214 NLRB 807, 810 (1974), in which it was found that recognition was accorded when collective -bargaining ne- gotiations were begun 2' This according to the testimony of Employer Administrator Robert Kaszirer. However, the record is somewhat unclear on this point. Al- though Kaszirer's testimony is supported by checks that indicate that em- ployees worked in late October and early November, in evidence is an undated letter addressed to "Dear Employees " that states "please be ad- vised that we will re-open, the holidays having passed, about November 18, 1981." The letter is part of an exhibit bearing a cover letter dated November 12, 1981, sent by Kaszirer to Local 1115 official Alez De Laurentis, which states. "Enclosed please find a listing of employees who were contacted regarding our reopening ." (R. U. Exh 15) This might be explained, however, by the fact that in October, the Employer was not expecting a preopening survey until mid-November, and when it found In order to determine the twin issues of whether Local 1115 represented a majority of the unit employees on November 12, 1981, and whether the Employer em- ployed a representative complement of employees, it is necessary to examine certain checks produced by the Employer issued to employees on its payroll during the periods in question.30 The Employer has followed a practice of paying its employees for the week ending Friday or Saturday with checks dated the following Wednesday or Thursday.S' Accordingly, the week ending November 13 or 14, 1981, is the critical week because it encompasses November 12, the date of recognition. In order to determine who was employed during that period, the checks dated Novem- ber 18 and 19 must be examined. The record reveals that no checks dated November 18 or 19 were issued by the Employer, thereby supporting a finding that no employees were employed during the week ending November 13 or 14.32 Assuming that checks were issued about November 12 for the period covering November 6-12 to employees employed during that period, the record reveals that checks were issued to 11 employees,33 8 of whom are on the Excelsior list.34 I therefore find that 11 employees were employed on November 12 when recognition was given. For the payroll period from November 30 to Decem- ber 5, 1981,35 the first full week of the Employer's oper- that such an inspection was to be conducted on October 30, it reopened earlier and recalled certain employees to prepare for that survey. so The time records of the employees were unavailable, having been thrown out. I reject the General Counsel's argument that an adverse in- ference be drawn from the Employer's failure to produce the time records. There was no evidence that the records were destroyed because of this proceeding, and the Employer's officials were not involved in the apparently routine destruction of documents that were no longer needed in its daily operation The burden is on the General Counsel to prove that Local 1115 lacked representative status . Cf. United Supermarkets, 261 NLRB 1291, 1317 (1982). Si See G.C. Exhs. 35 and 37B, and Kaszirer testified to that effect. Thus, for example, for the week ending Saturday , September 5, employ- ees were paid on Wednesday, September 9. Also , for the week ending Friday, December 19, employees were paid on Thursday, December 24. 32 This finding would receive support in the Employer 's letter dated November 12 and the enclosed letter stating that the Employer would reopen about November 18. See in. 29, supra. sa Mayne Alexander (G.C. Exh 39, check 203); Samuel Allen (G.C. Exh. 39, check 209), Eduardo Castro (G.C Exh 39, check 205); Marvin Castro (G.C. Exh. 39, check 208); Wilford Drummond (G.C. Exh 39, check 207); Steve Harrison (G.C. Exh. 39, check 204); David Rosen- wasser (G.C. Exh. 37A, check 527); Sebastian Santiago (G.C. Exh 39, check 206); A. Alvarez (G.C. Exh. 37A, check 526); G. Bliomus (G.C. 37A, check 529); and B. Holquin (G.C. Exh. 37A check 538). Checks issued to Kolman Plotshker and Ms. Mejia in this period were not•includ- ed because according to Kaszirer's testimony, Plotshker hired employees and Mejias was the director of food services 94 Alexander, Allen, Eduardo, and Marvin Castro, Drummond, Harn- sion, Rosenwasser, and Santiago. 35 As evidenced by checks dated December 9, many of which bear the notation "W/E 12/5." G.C. Exh. 39. The names and check numbers are as follows: D. Rosenwasser, 242; S Cheng, 250; E. Cox, 251; M. Fol- linger, 254; G. Ellis, 255; B. Reid, 256; M . Reid, 257; B. Chalmers, 258; K. G. Everett, 259, B. Nurse, 260; K. Teagle, 261; K. Belvin , 262; 1. Lee, 263, S Numa, 264; D. Parkes, 265; C. Simmons, 266; R. Welch, 268; M. Grant, 269; G Hall, 270; F. Patterson, 271; C. Peters, 272, V. Peters, 273; D. Wade, 274, B . Wynter, 275; W Manapa, 276; J Prescod, 277; Mayne Alexander, 278, M. Caraballo , 279, J. Clermont, 280; E. Cahan, 281; H. Continued 466 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ation after its opening on November 23, the record re- veals that 41 unit employees were employed.36 At that time only the first floor of the facility had patients. The record further reveals that for the payroll period ending January 30, 1982, 96 unit employees were em- ployed.37 For the payroll period ending October 9, 1982, Column I Excelsior list, Payroll period ending 9/12/81 ........ 64 Week ending 11/12/81 ................................... 1 I Week ending 12/5/81 ...................................... 41 Payroll period ending 1/30/82 ....... ............... 96 Payroll period ending 10/9/82 ................... ... 137 (2) Analysis The evidence establishes that when recognition was accorded on November 12, 1981, 11 unit employees were employed on that date. Inasmuch as Local 1115 had se- cured authorization cards from seven of those employ- ees, I accordingly conclude that Local 1115 represent- ed a majority of the unit employees then employed when recognition was given by the Employer on November 12. However, I further find that recognition had not been lawfully extended on November 12, 1981, because a rep- resentative complement of employees had not yet been employed. As stated by the Board in Herman Bros.:40 The test for determining whether recognition has been lawfully extended is twofold: (1) at the time recognition is extended, the jobs or job classifica- tions designated for the operation involved must be substantially filled, and (2) the operation involved must be in normal production. The Board has not established a per se rule for determining whether there has been premature recognition, but has evalu- ated the facts to determine whether employees real- istically have had an opportunity to select a bar- gaining representative. Although not determinative, the Board has looked to the test set forth in General Hernandez, 282, M Castro, 283, W Alexander, 284, M. Clermont, 285, S Santiago, 286, A Alvarez, 287, B Holquin, 288, E Castro, 289, Clarence Davis, 290, N Hankins, 291, E Frais, 300 98 The checks of Thomasma Broughton, Chance Ostreicher, Sharon Wasserman, and Rachel Weinberger were not included because they were identified in later records, social service staff, and dietician 37 G.C Exh 68A, as evidenced by computer payroll sheets At that time there were patients on the first and second floors of the facility 38 G C Exh 68B, as evidenced by computer payroll sheets. At that time there were patients on four floors of the facility The fifth patient floor had not yet been opened which covered the period just prior to the opening of this hearing, the record reveals that 137 unit employees were employed.38 The following chart illustrates the number of employ- ees employed at various periods of time: Excelsior list of the 64 No of employees, the employees no. employed at employed the times listed vertically in column I W/E W/E PP/E PP/E 11/12/81 12/5/81 of 1/30/82 of 10/9/82 of of the 11 the 41 the 96 the 137 employees, employees, employees, employees, the no. the no. . the no. the no. employed employed employed employed at the times at the times at the times at the times listed listed listed listed vertically in vertically in vertically in vertically in column I column I column I column I 8 12 21 20 8 _-7 7 5 12 7 24 17 21 7 24 67 20 5 17 . 67 Extrusion41 to determine whether recognition is lawful. As in the contract-bar area, the Board, in deciding whether recognition has been improperly extended, has attempted to protect the rights of em- ployees who are working, as well as those who are to work in the future. It is clear that at the time of recognition, November 12, 1981, neither the jobs nor job classifications were substantially filled, nor, was the operation involved in normal production. The figures reveal that on November 12, 1981, 11 em- ployees were employed essentially in cleanup, mainte- nance, and preparation for opening the facility. The Em- ployer at that time must have known that it would even- tually be operating a five-floor patient facility, with the number of employees increasing rapidly after its opening. Thus, only 3 weeks later, on December 5, 1981, 41 em- ployees were employed; 2-1/2 months after recognition 96 employees were working; and 11 months after recog- nition 137 employees were employed. The figures compel the conclusion that a substantial and representa- tive complement of employees was not employed at the time of recognition. In addition, on November 12, 1981, the Employer was not in normal production, and may not have been open at all, having been closed for Succoth and prior to the 39 Samuel Allen, Alejo Alvarez, Eduardo Castro, Marvin Castro, Steve Harrison, Bienvemdo Holquin, and Sebastian Santiago 40 264 NLRB 439, 440-441 (1982) 41 General Extrusion Co, 121 NLRB 1165 (1958) The Board held there that a contract signed when an employer employed 30 percent of its employee complement in 50 percent of its job classifications would constitute a bar to a representation petition FLATBUSH MANOR CARE CENTER preopening survey Even if it was open, it was not in normal operation, which is patient care, the first patient not having been admitted until November 23. The employees employed on November 12 were not engaged in the work that they would be performing when the Employer opened. They were only engaged in maintenance or preparatory work Such work is not gen- erally considered to be normal production work.42 Respondents argue that the decision in Klein's Golden Manor43 is controlling here. I do not agree. In Klein's,-as here, the union was recognized prior to the opening of a nursing home, and at the time of recognition the employ-' ees were engaged in preparatory work prior to the open- ing of the facility However, the significant facts not present here, relied on by the Board in finding no prema- ture recognition, were: (a) all employees employed at the time of recognition were retained when the employer began operations 2 weeks later, (b) the employees. em- ployed at the time of recognition constituted 90 percent of the employer's staff during its first week of operation, which was the same percentage of its average number of employees during the next 3 months of its operations, and about 65 percent of its average weekly complement during the balance of the year, (c) the number of em- ployees who signed cards for the union constituted a ma- jority of those employed as of the date the contract was signed, and also was a majority of the employer's maxi- mum employee complement reached thereafter, and (d) the 11 employees employed at the time of recognition in July constituted more than 50 percent of the employer's complement of employees employed in the following 2 months and about 42 percent of that complement during the balance of, the year. The facts in this case, specifically' the numbers of em- ployees employed at the time of recognition and thereaf- ter, simply do not support a reliance on Klein's. In this case, (a) only 7 of the 11 employees employed at the time of recognition were employed in the first full week of operation (week ending December 5) after the opening of the facility and (b) the 11 employees em- ployed at the time of recognition constituted only 27 per- cent of the Employer's staff during its first full week of operation44 and 11-1/2 percent of the staff nearly 2 months after its opening,45 and only 8 percent of the staff employed 10 months after its opening.46 The 64 employees employed at,the time the Excelsior list was prepared may not be used as the critical, number in determining whether a substantial and representative complement were employed. The critical date, as set forth above, is the date of recognition, November 12, 1981. It is true that employees were not working during the period of the Employer's closing in October 1981, but were recalled However, the burden of the failure of the vast majority of them to return to work after the re- opening must fall on the Employer, whose closing caused the release from employment of the employees. It 42 Crown Cork & Seal Co, 182 NLRB 657, 662 (1970), Lianco Contain- er Corp, 173 NLRB 1444, 1448 fn 13 (1969) 43 214 NLRB 807 (1974) 44 Eleven of 41 employees 4s Eleven of 96 employees 46 Eleven of 137 employees 467 cannot be considered that they were still employed at the time of recognition especially since they did not return to work after the Employer's temporary closing in October 1981. As stated in Cowles Communications:47 [W]here an employer recognizes a union as the ex- clusive bargaining representative of its employees on the basis of a majority demonstrated by cards or a petition, as here, such recognition is inappropriate and unlawful if it is granted before the employer has recruited a work force that can be considered substantially representative of his anticipated com- plement of employees. The vice in such a premature grant of recognition is the employer's committing the majority of those not yet hired to a bargaining representative in whose selection they have had no choice. Assuming, as argued by Respondents, that authoriza- tion cards were obtained by Local 1115 from a majority of the employees at the time of the execution of the con- tract on December 1, 1981, as set forth in the contract,48 and were later obtained in August 1982 and submitted to an arbitrator for a card count, these acts do not cure the earlier illegal conduct. On the contrary, the Supreme Court has held that initial unlawful acts taint all that fol- lowed .4 s In finding that premature recognition was granted on November 12, 1981, I do not rely on any of the General Counsel's claims during the hearing that (a) Respondents engaged in a scheme or collusion to procure certification for Local 1115, (b) the Excelsior list was "packed" or "padded," and (c) there were irregularities concerning and tampering with checks issued by the Employer. I find no evidence to support these claims. I accordingly find and conclude that by recognizing Local 1115 at a time when the jobs or job classifications were not substantially filled and when the facility was not in normal operation, and by entering into contracts with that union on December, 1, 1981, and January 4, 1982; containing union security and dues-checkoff provi- sions, Respondent Employer violated Section 8(a)(1), (2), and (3) of the Act and 'Respondent Local 1115 violated Section 8(b)(1)(A) and 8(b)(2) of the Act. 2. The alleged unlawful recognition of Local 1115 in the registered nurses unit The complaint alleges that the Employer violated Sec- tion 8(a)(1) and (2) of the Act on January 20, 1982, by granting recognition to Local 1115 when Local 1115 did not represent an uncoerced majority of the employees in the registered nurses unit. The General Counsel asserts that when the Employer recognized Local 1115 (a) that Union did not possess a 47 170 NLRB 1596, 1610-1611 (1968) 48 The contract states that "Whereas the parties have met for the pur- pose of negotiating a collective bargaining agreement between Flatbush Manor Care Center (Employer) and the aforementioned Union and has conducted a card check to ascertain continued majority on this date " 49 Ladies' Garment Workers (Bernhard-Altmann) v NLRB, 366 U S 731, 738 (1961) 468 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD numerical majority of the employees in the unit, (b) cer- tain employees had also signed cards for Local 144, and (c) employer official Kaszirer knew that Local 144 was organizing the Employer's employees. Respondents argue that (a) the Employer was contrac- tually obligated to recognize Local 1115 as the represent- ative of the registered nurses, (b) Local 1115 represented a majority of the registered nurses, and (c) Bruchner Nursing Home50 requires dismissal of this allegation. a Facts On January 18, 1982, Local 1115 demanded recogni- tion and on January 20 the Employer advised that Union that based on a card check conducted on January 19, it had determined that Local 1115 represented a majority of the Employer's 11 registered nurses, and it extended recognition to Local 1115 At the time the Employer recognized Local 1115 on January 20, 1982, five persons had signed cards for Local 1115 and for Local 144. Employer Administrator Kaszirer admitted that before he recognized Local 1115 he knew that Local 144 was organizing the registered nurses but nevertheless recog- nized Local 1115 because he had a "preference" for that Union since he believed that it was more businesslike and professional than Local 144. Employee Local 1115 Local 144 Batson Jan 11, 1982 Jan 10 or 16, 1982 Brewster Jan 16, 1982 Browne Jan. 7, 1982 Jan 16, 1982 DesVignes Jan 15, 1982 Murray Jan. 9, 1982 Jan 20, 1982 Norman J 9 1982 Reid an. , - Dec 14, 1981 Richards - Jan 20, 1982 Thomas Rigby Dec 27, 1981 Jan 3, 1982 Salmon Jan 9, 1982 Jan 16, 1982 The circumstances surrounding the execution of the cards by those signing dual cards is as follows Employee Oliver Batson testified that he signed a card for Local 1115 in the Employer's premises on January 11, 1982. He signed a card for Local 144 on either Janu- ary 10 or 16. It would seem likely that the card was signed on January 16 because he stated that after he signed the first card certain questions arose concerning the type of coverage offered, so employees then signed cards for Local 144.5 i -Batson had formerly been a member of Local 144. Employee Marlene Stephenson-Browne testified that she signed a card for Local 1115 on January 7, 1982, and thereafter executed a card for Local 144 on January 16, which she mailed. Browne was a member of Local 144 prior to beginning work at the Employer Employee Ronie James Murray testified that she signed a card for Local 1115 on January 9, 1982, and thereafter signed a card for Local 144 on January 20. She signed both at the Employer's premises and read both before executing them Marlene Thomas Rigby testified that she signed a card for Local 1115 on December 27, 1981, and thereafter ex- ecuted a card for Local 144 on January 3, 1982. Ivy Salmon testified that she signed a card for Local 1115 on January 9, 1982, and executed a card for Local 144 on January 16. She stated that she did not read either card before signing it, but believed that by signing the cards she might receive more security and greater benefits. On January 25, 1982, Local 144 filed a petition to rep- resent the Employer's registered nurses. A hearing was held on February 9, at which Local 1115 intervened. The Employer and Locals 144 and 1115 stipulated at the hearing that- (a) The following 11 employees constituted all the unit employees as of the payroll period ending January 30, 1982: Batson, Brewster, Browne, deChalius, DesVignes, Kessin, McGarrell, Murray, Norman, Rigby (Thomas), and Salmon .52 (b) Myrtle Richards, Celeste Burrows Augenfeld, and Kevin O'Neill were "shift supervisors" and supervisors within the meaning of the Act. In the representation case the Employer and Local 1115 'asserted that the Employer's recognition of Local 1115 on January 20, 1982, acted as a bar to the process- ing of the Local 144 petition. In addition, Local 1115 argued that the Employer was obligated to recognize Local 1115 in the registered nurses unit because its cur- rent contract covering the blue collar employees con- tained the following clause: BARGAINING UNIT: 1 B "Any additional classifications not presently covered shall become part of this Agreement when the Union represents a majority within such classifi- cations and shall be subject to separate negotiations between the parties. The result of such negotiations shall be attached as an appendix to this Agree- ment." On March 16, 1982, the Regional Director issued a Decision and Direction of Election that, inter alia, reject- ed the claims of recognition bar and contract bar, and in which he directed that an election be held.53 None of the parties contested the Intervenor's (Local 1115's) majority claim The parties stipulated and the record shows that at the time the Interve- nor (Local 1115) was recognized , it represented a majority of the Employer's registered nurse em- ployees The record shows that prior to the January 20, 1982, recognition of the Intervenor (Local 1115) the Petitioner (Local 144) had obtained signed authori- so Bruckner Nursing Home, 262 NLRB 955 (1982) 5i In addition, Batson said that as a former Local 144 member he was aware of the benefits offered by that Union 51 The General Counsel alleges in the instant case that Venistene Reid should also be included in the unit as a regular part-time employee Ss The ballots were impounded pending the outcome of the instant case FLATBUSH MANOR CARE CENTER 469 zation cards from a majority of the Employer's reg- istered nurses. Assuming arguendo, that the Petition- er (Local 144) did not obtain a majority of the cards prior to the Intervenor's (Local 1115's) recognition, the record also shows that a supervisor of the Em- ployer had knowledge of the Petitioner's (Local 144's) organizing campaign for the registered nurses prior to the recognition of the Intervenor (Local 1115). Under all the circumstances, I find that the recognition agreement cannot be considered a bar within the Keller Plastics principle. Respondents argue that I am bound by (a) certain find- ings made in the representation case and (b) stipulations of the parties in the representation case as to supervisors and the number of employees in the unit . However, Re- spondents also urge that I am not bound by the Regional Director's findings there that no recognition bar or con- tract bar exists.54 The Board has consistently held that findings in a rep- resentation case as to the supervisory status of employees may be relitigated in a subsequent unfair labor practice case involving independent violations of the Act, and that the General Counsel is not bound by stipulations of the parties in a representation case in which the General Counsel is not a party.55 The Board has noted, however, that it "may accord a certain `persuasive relevance , a kind of administrative comity' to the prior representation case finding."56 Thus, the supervisory status of Batson, Norman, Rich- ards, and Thomas Rigby are at issue. (1) Batson Batson, a "nursing supervisor" prepared monthly time- sheets that stated how many employees would be needed to adequately staff the facility. He was told in advance by management officials how many were required. Then a daily work schedule was prepared that set forth the employees needed . The work schedule was submitted to and approved by the director of nursing services or her assistant prior to its posting, and he was told by them to call in a replacement if the units are shorthanded , by, for example, two employees. When he was hired, Batson was told to tell the director or assistant director of nurs- ing if he had any difficulty with staffing. He did not hire or fire employees nor recommend that anyone be dis- charged. He never gave any warnings to employees. He twice recommended that certain employees be repri- manded for failure to follow his instructions, but he was told by the director and assistant director to try to be more "flexible" and to understand the employees. Batson stated that he performed six to eight written evaluations for newly hired registered nurses. He gave the evaluation forms to the director of nursing who then spoke to the employees involved about the evaluation. Batson was present at some but not all of these discus- 54 The Board denied requests for review based on those issues 66 Southern Paint & Waterproofing Co., 230 NLRB 429, 436 (1977), Shelly & Anderson Furniture Mfg. Co., 199 NLRB 250, 255 (1972) See also Air Transit, 256 NLRB 278, 279 (1981). 56 Air Transit, supra sions and he was not told how the evaluations would be used. Batson, who punches a timeclock, worked from 7 a.m. to 3 p.m. The director and assistant director of nursing were on duty from 9 a.m. to 3 p.m. (2) Norman Norman, a "nursing supervisor" was told at her hire that the Employer is a newly opened facility and that her duties initially would be to help the director and as- sistant director of nursing hire employees and begin op- erations. For about 3 to 4 months Norman interviewed prospec- tive nurses aides, checked their applications to see that all the information was included, informed them of their duties, and directed them to see the director or assistant director who then conducted her own interview and made the final decision as to their hire. Norman dis- cussed with the assistant director two employees she interviewed and they were ultimately hired , but she never discussed with the assistant director an employee already interviewed by the assistant director. Norman did not discharge anyone, did not schedule any employees, and did not assign overtime. As the number of patients in the facility increased, Norman set up the patient floors with the new employees. The director and assistant director were on duty when Norman was working. Norman wrote evaluations for nurses aides and gave them to the director of nursing , but had no conversation with the director concerning the evaluations and had nothing more to do with them after giving them to the director. She stated that her duties were essentially the same as those of employee Batson. (3) Richards Richards, a "nursing coordinator," testified that her duties were to supervise the nurses and nurses aides and to assist with the general care of patients. She worked on the 11 p.m. to 7 a .m. shift, at a time when she was the highest ranking employee in the facility , when no other department heads were present. She did not hire or discharge any employees. She called in replacements for employees out sick once or twice per week, and did not have to check with anyone before calling in a substitute. She asked nurse's aides to work overtime. Richards substituted for admitted Supervisor Augen- feld from April to June 1982, after the events at issue here. In answer to certain hypothetical questions about events that had never occurred , Richards stated that: (1) if an employee reported to work drunk , she could send him home, and (2) if an employee hit a patient she would not send him home, but would report it to a management official. Richards also stated that she had the authority to assign employees from one floor to another if an extra employee was needed, but she never did so, and that em- 470 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ployees were supposed to request from her permission to leave early but they never did so.57 (4) Thomas Rigby Rigby, a "nurse supervisor," substituted for Kevin O'Neill, an admitted statutory supervisor, 2 days per week during which time she (Rigby) stayed in the nurs- ing office and performed the work of a nursing coordina- tor, but also worked on the floor when she was short of staff. The other 3 days she administered patient care, in- cluding giving medications and making entries on pa- tients' charts. When Rigby substituted for O 'Neill she had no author- ity to transfer an employee from one shift to another but could have reassigned employees. She made two to three changes in assignment of employees during the entire time she substituted for O'Neill. In making such assign- ments she checked to see how many employees were on duty in relation to the number of patients on the various floors, and would then "ask" a less senior employee if she would take a different assignment . On the one occa- sion that an employee left her shift early to go home, Rigby first obtained the permission of the assistant direc- tor of nursing. Each weekend, without receiving her su- perior's consent, Rigby asked two to three employees, li- censed practical nurses and registered nurses, to work overtime. When employees called in sick she would ask employees to work overtime or call replacements so that the schedule of employees, made by O'Neill, would be met. Rigby, who did not hire, fire, or evaluate employees, attended meetings with the director and assistant director of nursing, but was not present at meetings with the heads of departments. Vacation requests are sent to the director or assistant director of nursing. (5) Venistine Reid In the representation case, Reid was excluded from the unit by the parties. The General Counsel argues that she should have been included because she was a regular part-time employee. Reid was employed by the Employer from November 1981 to February 1982 while at the same time working full time at another hospital . In January 1982, she worked from 11 p.m. to 7 a.m., 2 days per week. How- ever, in the first 2 weeks in January she worked a total of only 1 day, and conceded that it was possible that she did not work at all for the Employer in the last 2 weeks of January (when the Employer recognized Local 1115). In the 6-week period from January to mid-February 1982, Reid worked a total of only 2 days. Reid testified that during the last 2 weeks of January 1982, she was ill at home, with phlebitis, and told the di- rector of nursing that she would call when she was able to work. She was sick for 3 to 4 weeks, and then re- turned to work. She stopped work for the Employer in February 1982. b. Analysis (1) The unit employees The evidence supports the parties' stipulations made at the representation hearing. Thus, Batson, Norman, and Thomas Rigby are all nonsupervisory employees;58 Richards is a statutory supervisory ; and Reid was prop- erly excluded from the unit because of her irregular status. The evidence clearly shows that Batson prepared monthly timesheets only after having been given the in- formation required by management officials, and the daily worksheet he prepared needed approval by such officials. He did not hire or fire employees; his recom- mendations that certain employees be reprimanded were apparently not carried out; and he simply prepared eval- uations of newly hired employees, which were discussed by the director of nursing with the employee . He pos- sessed no indicia of statutory authority and is therefore not a statutory supervisor. Norman conducted a preliminary interview of pro- spective employees essentially to make sure that their ap- plications were complete, but formal interviews were held with the director or assistant director without her being present. Although she wrote evaluations of the nurses aides, there was no evidence that the director acted on them. Norman, who did not hire, fire, or sched- ule employees, or assign overtime, is clearly not a super- visor. Thomas Rigby, although she substituted for admitted Supervisor O'Neill, nevertheless performed patient care when needed at that time. In making reassignments while filling in for O'Neill, she engaged in the routine exercise of sending employees to areas where they were needed in conformance with O'Neill 's prepared schedule of em- ployees. Rigby did not hire, fire, or evaluate employees. She is not a supervisor. Richards, a "nursing coordinator," supervises the nurses and nurses aides . She was the highest ranking em- ployee in the facility during her 11 p .m. to 7 a.m. shift. She called in replacements for employees out sick and assigned overtime to nurses aides . She possessed the au- thority to send an employee home if he reported to work in an inebriated state, and also had the authority to assign an employee from one floor to another as needed. It is significant that in the representation case the parties there stipulated that Richards and Augenfeld were "shift supervisors" and supervisors within the meaning of the Act. Here, the General Counsel has alleged in the com- plaint that Augenfeld is a supervisor and the Employer had admitted that allegation . Thus, it would appear that Augenfeld, an alleged admitted supervisor occupies the same position as Richards. I find that Richards is a su- pervisor within the meaning of Section 2(11) of the Act. With respect, to Venistine Reid, I find that evidence supports the parties' exclusion of her from the unit in the representation case. Her tenure, during the critical period at issue, was very brief. She worked a total of only 1 day 67 It is unclear whether they never left early or they never requested such permission from her. sa River Hills Nursing Home West, 262 NLRB 1458 (1982); Eventide South, a Division ofGeriatricx Inc., 239 NLRB 287 (1978) FLATBUSH MANOR CARE CENTER 471 in the first 2 weeks in January, and apparently did not work at all in the last 2 weeks of January when the Em- ployer recognized Local 1115. In the 6-week period from January to mid -February 1982, she worked a total of only 2 days. Reid's testimony is not credible. She first testified that she returned to regular work , 2 days per week in January, after her illness, but then stated that she worked a total of only 1 day in January, and 1 day in February. Moreover, her scheduling arrangement was quite tenuous. About 1 week in advance, she told the di- rector of nursing what days she did not work at her other, full-time job, and the director would advise her whether she could work those days . It thus does not appear that Reid was a regular, part -time employee, as argued by the General Counsel . Rather, Reid was a casual employee who was not a regular part-time worker. She was therefore properly excluded from the unit by the parties in the representation case and is not part of the unit here. Accordingly, on January 20, 1982, the date of recogni- tion, the unit consisted of the following 11 employees as stipulated by the parties in the representation case: Batson, Brewster, Browne, de Chalius, DesVignes, Kessin, McGarrell, Murray, Norman, Thomas Rigby, and Salmon. (2) The dual cards As set forth above, of the 11 employees , 8 signed au- thorization cards before January 20, 1982.511 Of the eight workers, six of them signed cards for Local 1115,80 and it is those cards, which Local 1115 of- ficial De Laurentis presented to the Employer on its demand for recognition that caused the Employer to accord recognition to Local 1115 . Thus, on its face it would appear that Local 1115 represented a majority of the registered nurses. However, five of the six Local 1115 card signers also executed cards for Local 144.61 It is those "dual cards" that, according to the General Counsel, void the majority showing of Local 1115. It is also urged by the General Counsel that the recognition by the Employer violated the Act because it occurred at a time when it knew that Local 144 was organizing its employees. Respondents assert that the Board's decision in Bruck- ner Nursing Home, 62 requires a finding that inasmuch as Local 144 did not file a petition, demand recognition, or notify the Employer of its interest in representing the employees, the "imposition of strict employer neutrality" was therefore not triggered, and accordingly, the Em- ployer was free to recognize Local 1115 on a showing that it represented a majority of the employees. The Board has consistently held that "where an em- ployee signs an authorization card for each of two unions, the cards cannot be validly counted in establish- ing the majority status of either union ,"83 essentially be- 88 Batson, Brewster, Browne, DesVignes, Murray, Norman, Thomas Rigby, and Salmon. 88 Batson, Browne, Murray, Norman, Thomas Rigby, and Salmon 61 Batson, Browne, Murray, Thomas Rigby, and Salmon 62 Bruckner Nursing Home, 262 NLRB 955 ( 1982). 63 Unit Train Coal Sales, 234 NLRB 1265, 1271 (1978), enf. denied 636 F.2d 1121 (6th Cit. 1980). cause it is impossible to determine which of the two unions the employee wished to represent him. Although in certain cases it may be found that one of the two cards was repudiated by the dual card signer, I am unable to find that any of the cards was repudiated. Thus, there was no evidence that the dual card signers intended to designate Local 1115 over Local 144 or that they were dissatisfied with one or the other union.64 The evidence simply establishes that, in each of the five dual card situations, with the possible exception of Batson,65 the employees signed a card for Local 144 about 1 week after executing a Local 1115 card. 66 I cannot agree that Bruchner Nursing Home changes prevailing Board con- cepts on the issue of dual cards . In Bruchner, the Board held that it will no longer find 8(a)(2) violations in rival- union initial organizing situations where an employer recognizes a labor organization that represents an un- coerced, unassisted majority, before a valid petition for an election has been filed with the Board . The Board noted that this holding would not preclude the finding of an 8(a)(2) violation where the employer recognized a labor organization that did not actually enjoy majority support, basing such holding on Bernhard-Altmann,67 a "longstanding principle ... unaffected by the revised Midwest Piping doctrine."68 Accordingly, the facts that no petition was filed, no "rival claim" for representation was made, and no request for recognition demanded by Local 144 are irrelevant to the question of whether Local 1115 in fact represented a majority of the employ- ees on January 20 , when it was recognized by the Em- ployer.69 Section 9(a) of the Act requires that a union recog- nized by an employer must "be designated or selected for the purposes of collective bargaining by the majority of the employees in the unit appropriate for such pur- poses." Because cards were signed for both unions, the cards thus signed by Local 1115 card signers may not be counted toward the majority status of that union. I therefore find that the five authorization cards signed by the dual card signers may not be considered and counted as valid Local 1115 designations on January 20. Accordingly, Local 1115 represented only 1 employee, 64 Wavecrest Home for Adults, 217 NLRB 227, 230 (1975). 88 Batson was not certain whether he signed a Local 144 card before or after he signed a card for Local 1115. 66 I reject Respondents' argument that inasmuch as certain of the dual card signers had been members of Local 144 in the past they therefore repudiated the card they signed for that Union by virtue of their execu- tion of a card for Local 1115 In the circumstances of a current campaign between two unions the employee is free to exercise his choice of a bar- gaining representative without concern as to which union had represent- ed him in the past. 87 366 U.S. 731 (1961). 88 Bruckner, supra at 957 In. 13 69 In Great Southern Construction, 266 NLRB 364 (1983), the Board re- fused to find an 8(a)(2) violation on the basis of Bruckner. However, in doing so, the Board noted that it would not analyze the case under the principles of Crest Containers Corp., 223 NLRB 739 (1976), concerning recognition in the context of dual cards because the authorization cards of the rival union were not introduced into evidence and because the case was litigated solely on the basis of Midwest Piping & Supply Co., 63 NLRB 1060 (1945). 472 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Norman, in a unit of 11 employees.70 Local 1115 was therefore not a majority-designated union when it was recognized by the Employer as the exclusive bargaining representative of the employees. Although I find that Administrator Kaszirer knew that Local 144 was organizing the registered nurses at the time the Employer recognized Local, 1115, such knowl- edge, which would have been relevant in Midwest Piping, is not a factor in such cases arising under Bruckner Nurs- ing Home Inasmuch as I find that Bruckner is inapplica- ble here because of the fact that Local 1115 did not, in fact, represent a majority of the employees, the knowl-' edge of the Employer would in any event be immaterial. Respondent argues that no violation has occurred be- cause the Employer was obligated, by virtue of its con- tract with Local 1115 for the blue collar employees, to recognize it in the unit of registered nurses. I reject this contention . This issue was raised in the representation case and rejected there. Moreover, Central 'General Has-' pital,71 cited by Local 1115, is inapposite. In that case the Board held that the parties intended, by the identical contractual provision as that involved here, to include within an existing unit of service and technical employ- ees, the medical records department employees. In the contract involved here, however, the-registered nurses were expressly excluded from coverage under the blue collar agreement. Accordingly I find no basis to con- clude that the Employer was contractually obligated to recognize Local 1115. I accordingly find and conclude that by recognizing Local 1115 on January 20, 1982, for a unit of its regis- tered nurses when Local 1115 did not represent an un- coerced majority of such employees, the Employer vio- lated Section 8(a)(1) and (2) of the Act. 3. The discharge of Faith McDonald In mid-January 1982, McDonald spoke with Augen- feld regarding the benefits offered by Locals 144 and 1115 and which Union would be better to join. McDon- ald stated that Augenfeld told her that DeGray asked her (Augenfeld) about McDonald's productivity and what type of person she was Augenfeld replied that she told DeGray that McDonald was her "best worker" be- cause she performed the work assigned; and also told DeGray that McDonald talks about union politics ' but "she's not what you may have heard." McDonald testi- fied that Augenfeld told her to "slow down because my union activity may be the result of why they're-Miss DeGray's question [to] her about . . . the individual I am."7 a Nine registered nurses had signed cards for Local 144 by January 20, 1982. Local 1115 had also obtained signed authorization cards from registered nurses in late Decem- ber 1981 and January 1982. On January 18, Local 1115 demanded recognition from the Employer for a unit of registered nurses. On January 20, the Employer recog- nized Local 1115 for that unit Robert Kaszirer, the Em- ployer's administrator, admitted that at the time he rec- ognized Local 1115 in the registered nurses unit he knew that Local 144 was organizing those nurses and that he had a "slight preference" for Local 1115 because: (1) Local 1115 already represented the blue collar unit and he believed that it was in the Employer's best interest to have one union rather than two in the facility and (2) he believed that Local 1115 was more businesslike and pro- fessional than Local 144.74 On January 25, 1982, Local 144 filed a petition to rep- resent the registered nurses. The Employer received a copy of the petition on January 29, and that night McDonald was discharged when she reported to work. On her discharge McDonald received a letter signed by DeGray, which stated: a Facts Faith McDonald began work at the Employer on De- cember 14, 1981, as a nurses aide. By that time Local 1115 had signed an agreement with the Employer con- taining certain terms and conditions of the employees in the blue collar unit. McDonald signed a card for Local 1115 on December 19, 1981 Shortly before Christmas 1981, McDonald received a number of blank authorization cards from representatives of Local 144 outside the entrance to the Employer's fa- cility. She solicited several registered nurses, some of whom signed cards in her presence. She signed a card for Local 144 on December 30, 1981, and also asked her supervisor, Celestine Augenfeld, in January 1982 to sign a card.72 McDonald requested and was given a transfer to another shift by Valerie DeGray, the Employer's as- sistant director of nursing. 70 Even if the Local 144 card of employee Murray, one of the 5 dual card signers , was not counted because it was executed on January 20, the date of recognition, Local 1115 would still not have represented a majori- ty of the employees-only 2 in a unit of 11 71 223 NLRB 110 (1976) 72 Augenfeld is an admitted Sec 2(11) supervisor Augenfeld signed a card for Local 144 but did not do so in McDonald's presence This is to inform you,that as of this date Jan. 29, 1982, your services will not longer be necessary. A check for all monies due you will be ready the next pay period. Respondent asserts that McDonald was discharged within the probationary period for leaving the premises without authorization during working hours. Hilda Goldstein, a security guard employed by SSI Se- curity, was assigned to occupy the desk at the Employ- er's front door.75 One of her duties was to keep track of employees taking breaks. She testified that in January 1982, she saw McDonald leave the building several times - in a 2- to 3-week period during working hours, during which she would be absent for 2 to 3 hours each time. Goldstein stated that on such occasions McDonald would leave the Employer's premises two to three times 73 Augenfeld distributed cards for Local 144 during the entire month of January 1982 74 Kaszirer had previously been the administrator at another nursing home where employees were represented by Local 144 and that Union had twice threatened to strike but never did so Later, however, Kaszirer testified that Local 144 struck that home in the spring of 1978 and in April 1982 75 SSI Security is not affiliated with the Employer FLATBUSH MANOR CARE CENTER 473 in an evening. Goldstein reported this to Solomon Levy, the Employer's controller who told her that he would take care of the matter. Levey then reported his conver- sation with Goldstein to administrator Kaszirer who dis- cussed it with certain security guards and with Assistant Director of Nursing DeGray.76 According to Kaszirer, a decision was then made to discharge McDonald because of her unauthorized absences from the premises and be- cause her probationary period was to expire soon. Regarding the probationary period , the contract be- tween Local 1115 and the Employer, effective January 9, 1982, which covered McDonald, stated: New employees shall be deemed probationary during the first 30 days of their employment during which time they may be discharged for any reason which need not be stated by the Employer. The foregoing period can be extended an additional 30 days with the consent of the Union, such consent not to be unreasonably withheld. On January 12, 1982, Kaszirer sent a letter to Local 1115 official De Laurentis, which stated: Please be advised that pursuant to our contrac- tual agreement, we are hereby extending the proba- tionary period for all employees to 60 days. This is being done due to the fact that the facility is in its starting-up period and additional time is needed to adequately evaluate new employees. Shortly thereafter, De Laurentis asked Kaszirer why it was necessary to extend the probationary period and Kaszirer explained that operations at the Employer were then "hectic" because of the admis- sion of the first patients in late November and early December 1981 and as a result there was insuffi- cient time to fully evaluate the employees whose 30-day probationary periods had not yet expired.77 De Laurentis replied that he did not believe that the extension of the probationary period was proper, but that he understood the Employer's "concerns and problems" and would take the matter "under advisement." In January 1982, Kaszirer told all heads of depart- ments to review all employee records and work perform- ance so they could be evaluated with respect to their probationary period. Kaszirer denied any knowledge of McDonald 's activi- ties in behalf of any union, but conceded that when McDonald was discharged he was aware that Local 144 was organizing employees, but did not know that it was organizing the registered nurses. McDonald testified that she received a 1-hour break during her 11 p.m. to 7 a.m. shift that she took, with one exception, on the Employer's premises. The one time that she left the premises she received permission from 76 Levy and DeGray did not testify. 77 On January 12, 1982 , the date of the request for extension of the probationary period McDonald had completed 29 days of employment with the Employer There was no completed evaluation form in her per- sonnel file, which indicates that she had not yet been evaluated. Supervisor Augenfeld to do so and returned before the hour had elapsed. However, McDonald admitted that when she worked the 3 p.m. to I 1 p.m. shift before Janu- ary 6, 1982, she left the Employer 's premises many times for lunch and went to her home, which was located one- half block from the Employer 's building, and always re- turned within 45 minutes . Other employees left the build- ing with her at those times. She denied ever leaving the premises when she was supposed to be at her work sta- tion. McDonald conceded that other employees had been discharged without reason , and that she knew one em- ployee, Sheridan, who was fired a couple of days before her discharge, after having been warned by Augenfeld. b. Analysis The General Counsel asserts that McDonald's dis- charge violated the Act essentially because : (a) she was an active Local 144 adherent who solicited other em- ployees to join that Union, (b) her activities in behalf of Local 144 were known by employer supervisors and offi- cials and, (c) Employer Administrator Kaszirer possessed animus toward Local 144. I do not agree that her dis- charge was unlawful. Although McDonald testified to facts that would appear to make one believe that she solicited many em- ployees in behalf of Local 144, her testimony is seeming- ly contradicted by certain employees she allegedly asked to sign cards. Thus, McDonald stated that she gave au- thorization cards to Marlene Stephenson Browne and Maylene Thomas Rigby and asked them to sign , but that they did not do so in her presence. She recalled that Rigby told her that she would mail her card to Local 144. Browne testified that she received the card that she signed from a stack of blank cards lying on a table. Rigby testified that she received the card that she signed from a male Local 144 representative and that she re- turned it to him the next day.78 Although it is true that McDonald had several conver- sations with Supervisor Augenfeld about Local 144 and solicited Augenfeld to sign a card for that Union, it was well known that Local 144 was organizing the employ- ees at the time of these conversations. Cards for Local 144 were openly available and were displayed promi- nently at the facility. Augenfeld, too, was a supporter of Local 144 who signed a card for Local 144 and solicited other employees to execute cards . I am unable to find that Augenfeld's statement to McDonald provides evi- dence of an unlawful motive in her discharge. In mid- January 1982, Augenfeld told McDonald that DeGray was asking about her productivity and job performance. Augenfeld advised her to "slow down" because her union activity "may" be the reason behind DeGray's 78 While I am aware that Browne and Rigby did not deny receiving a card from McDonald (they were not asked that question), and it is con- ceivable that McDonald solicited them and then they received other cards in the manner they described, I find that it would have been more likely, if McDonald is to be believed, that they would have executed the card she gave them rather than at some other time signed a card received elsewhere 474 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD questions. Thus, Augenfeld surmised that DeGray may be inquiring about McDonald because of her activity in behalf of Local 144. This vague, ambiguous comment cannot supply the necessary hostility toward Local 144, which must be shown, especially in view of the uncon- tradicted evidence that, coincident with the Employer's proper extension of the probationary period at that time, Kaszirer ordered the department heads to review their employees and evaluate their performance . DeGray therefore was simply asking Augenfeld for her opinion of McDonald's productivity and job performance, which are of course proper subjects of discussion between su- pervisory personnel. Although Kaszirer admitted a preference for Local 1115 as the representative of the registered nurses, there is no evidence that either he or DeGray, who made the decision to discharge, knew of her activity in behalf of Local 144. Even if Augenfeld's knowledge of McDon- ald's union activities were to be imputed to the Employ- er, it is clear that Augenfeld possessed such knowledge several weeks before the discharge and no action was taken against her. I am therefore unable to find that the General Counsel has established a prima facie case that McDonald was discharged in violation of the Act.79 The evidence is clear that McDonald was discharged within the properly extended probationary period, and that a firing made in such period may be for any reason that need not be stated by the Employer .80 Kaszirer re- ceived information that McDonald left the building during work hours and verified those reports with cer- tain security guards.81 McDonald conceded frequently leaving the building on the 3 p.m. to 11 p.m. shift. The close proximity of her house to the Employer's premises and her previous practice of leaving the building leads me to conclude that she continued her pattern on the 11 p.m. to 7 a.m. shift. Although the timing of the discharge, coming on the day the Employer received Local 144's petition is suspi- cious, this fact cannot render unlawful a discharge that was proper. It appears that other employees were dis- charged at about the same time, and that McDonald was fired within her probationary period . Moreover, DeGray granted McDonald's request for a change in shift at a time when McDonald was actively soliciting employees to join Local 144. I accordingly find and conclude that McDonald was lawfully discharged on January 29, 1982. 79 Wright Line, 251 NLRB 1083 (1980). so The General Counsel attacks the credibility of Goldstein, the guard who observed McDonald leave the building. I credit the testimony of Goldstein. She was a neighbor and friend of McDonald who bore no ani- mosity toward her and who would not have told falsehoods in order to have McDonald discharged Goldstein , who was at times combative on cross-examination, nevertheless related her story in a straightforward, factual, honest manner McDonald, however, contradicted herself. For example, she first testified that after her discharge, Goldstein told her that it was unfortunate that she was fired for her union activity Then McDonald testified that Goldstein said it was too bad that she was fired for "nothing" and then stated that Goldstein never directly told her that she was fired for her union activity. a' I do not infer a sinister motive in the innocent destruction of the sign-in sheets, which may have revealed when and if McDonald left the building. THE REMEDY Having found that the Respondents have engaged in certain unfair labor practices, I shall recommend that they be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the poli- cies of the Act. Having found that the Respondent Employer unlaw- fully recognized the Respondent Union as the exclusive bargaining representative for a unit of registered nurses, I shall recommend that Respondent Employer cease rec- ognizing Respondent Union for that unit and withdraw and withhold all recognition from Respondent Union for such unit unless and until Respondent Union is hereafter certified by the Board as the exclusive bargaining repre- sentative of Respondent Employer 's employees in such unit. I shall further recommend that Respondent Em- ployer be directed to cease giving effect to the contracts or agreements with Respondent Union , or to any renew- al, modification, or extension of such agreements cover- ing the blue collar employees . However, nothing in the Order shall authorize or require the withdrawal or elimi- nation of any wage increase or other benefits, terms, and conditions that may have been established pursuant to such agreements. I shall further recommend that the Re- spondent Employer and the Respondent Union be or- dered, jointly and severally, to reimburse the employees for dues and fees and any other moneys that may have been exacted from them by, or on behalf of, Respondent Union pursuant to the previously mentioned collective- bargaining agreements, together with interest as pre- scribed in Florida Steel Corp.82 CONCLUSIONS OF LAW 1. The Respondent Employer, Flatbush Manor Care Center, is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Respondent Union, Local 1115 Nursing Home and Hospital Employees Union, a Division of 1115, Joint Board, and the Charging Parties, Local 144, Hotel, Hos- pital, Nursing Home and Allied Services Union, Service Employees International Union, AFL-CIO, are labor or- ganizations within the meaning of Section 2(5) of the Act. 3. By recognizing Respondent Local 1115 on Novem- ber 12, 1981, as the exclusive collective-bargaining repre- sentative of its employees in a unit consisting of all em- ployees excluding registered nurses, confidential , office and clercial employees, supervisors, watchmen and guards, and by entering into collective-bargaining con- tracts with that union on December 1, 1981, and January 4, 1982, containing union security and dues checkoff pro- visions, when Respondent Employer did not employ a representative employee complement , and by maintaining in effect and enforcing the provisions of the contracts, Respondent Employer violated Section 8(a)(1), (2), and (3) of the Act. 4. By recognizing Respondent Local 1115 on January 20, 1982, as the exclusive collective-bargaining represent- 92 231 NLRB 651 (1977). FLATBUSH MANOR CARE CENTER ative of its registered nurses at a time when it did not represent an uncoerced majority of such employees, Re- spondent Employer violated Section 8 (a)(1) and (2) of the Act. 5. By accepting recognition from Respondent Employ- er on November 12, 1981, as the exclusive collective-bar- gaining representative of its employees in a unit consist- ing of all employees excluding registered nurses, confi- dential, office and clerical employees, supervisors, watchmen and guards , and by entering into collective- bargaining contracts with Respondent Employer on De- cember 1, 1981, and January 4, 1982, containing union- security and dues-checkoff provisions, when Respondent Employer did not employ a representative employee complement, and by maintaining in effect and enforcing the provisions of said contracts, Respondent Union vio- lated Section 8(b)(1)(A) and (2) of the Act. 6. By making payments of money to employees prior to the election on October 1, 1981, Respondent Union violated Section 8(b)(1)(A) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 8. Respondent Employer did not violate the Act by discharging Faith McDonald on January 29, 1982. [Recommended Order omitted from publication.] APPENDIX I Name Check Dated Amount Alexander, M ........................................................ 10/2 $ 12.50 ............................................................................. 11/24 4.80 Alexander, R ....................................................... 10/2 23.40 ............................................................................ 11/25 8.40 Alexander, T ........................................................ 9/22 18.00 ............................................................................ 10/2 8.40 Allen, P ................................................................. 9/22 16.80 ............................................................................. 10/2 7.80 Allen, S ................................................................. 10/2 16.80 ............................................................................. 10/2 72.60 Bird, N .................................................................. 10/2 31.80 ............................................................................ 11/25 8.40 Capers, T .............................................................. 9/22 18.00 ........................................................................... 10/2 7.20 Carabello, M ......................................................... 9/22 18.60 ............................................................................. 10/2 15.60 Castro, E .............................................................. 9/22 17.40 ............................................................................. 10/2 64.20 Castro, M .............................................................. 9/22 17.40 ............................................................................. 10/2 64.20 Cemelfort, M ........................................................ 9/22 30.30 ............................................................................ 10/2 15.00 Clements, M ......................................................... 9/22 7.80 Clermont, J ........................................................... 9/22 36.00 ............................................................................. 10/2 60.60 Clermont, M ......................................................... 9/22 16.80 ............................................................................. 10/2 69.00 Coleman, C .......................................................... 9/22 18.60 ............................................................................. 10/2 15.00 ............................................................................. 10/15 54.81 APPENDIX I-Continued Name 475 Check Amount Dated Davis, C ............................................................... 9/22 18.00 Dalberiste, B ..................................................... 9/22 6.60 Drummond , W ..................................................... 9/22 8.40 ....................................................................... 10/5 70.80 Ellis, L................................................................. 9/22 25.20 ............................................................................. 10/5 8.40 Fonseca, A.R ........................................................ 9/22 16.80 ............................................................................ 10/5 16.20 Frans, R ................................................................ 9/22 9.60 ............................................................................. 10/5 13.20 ............................................................................ 10/15 28.00 Fulton, N ............................................................ 9/22 16.80 ............................................................................. 10/5 22.20 Gist, S ................................................................... 9/22 12.00 ........................................................................... 10/5 13.80 Hall, J ................................................................... 9/22 7.20 ............................................................................. 10/5 15.60 Hankins, N ............................................................ 9/22 25.20 ............................................................................. 10/15 28.00 Harrison, D .......................................................... 9/22 18.00 ............................................................................. 10/5 16.20 Harrison, S ............................................................ 9/22 33.00 ............................................................................ 10/5 62.40 Lindsay, M ........................................................... 9/22 16.80 Manswell, 1 ........................................................... 9/22 18.60 ............................................................................ 10/5 15.00 ............................................................................. 10/5 54.41 Manzanares, R ...................................................... 9/22 15.00 ............................................................................. 10/5 27.00 Michel, N .............................................................. 9/22 16.80 ............................................................................. 10/5 7.20 ............................................................................. 10/5 48.00 Nelson, M ............................................................. 9/22 8.40 ............................................................................. 10/5 16.20 Oquendo, C .......................................................... 9/22 8.40 ............................................................................. 10/5 16.20 Parkes, D .............................................................. 9/22 25.20 ............................................................................. 10/5 7.80 Paz, A................................................................... 9/22 15.00 ............................................................................. 10/5 36.00 Prudencia, S ........................................................ 9/22 9.60 ............................................................................. 10/5 15.60 Rose, B .................................................................. 9/22 8.40 ............................................................................. 10/5 7.80 Rowe, E ................................................................ 9/22 5.40 ............................................................................. 10/5 7.80 Santiago, M .......................................................... 9/22 31.80 ............................................................................. 10/5 12.60 Santiago, S ............................................................ 9/22 16.80 ............................................................................. 10/5 7.80 Samuels, L ............................................................ 9/22 48.00 ............................................................................. 10/5 5.40 ............................................................................. 10/15 42.60 Sargeant, S ............................................................ 9/22 31.80 ............................................................................. 10/5 16.20 Shannon, A .......................................................... 10/15 28.00 Suarez, G .............................................................. 9/22 24.00 ............................................................................. 10/5 19.80 ............................................................................. 10/5 114.00 Teagle, K .............................................................. 9/22 12.00 ............................................................................. 10/5 18.60 Tirso, M ................................................................ 9/22 15.00 476 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD APPENDIX I-Continued APPENDIX I-Continued Name Check Amount Dated Name Check Dated Amount ............................................................................. 10/5 66.60 ............................................................................. 10/5 7.80 Webb, P ................................................................ 9/22 13.80 ............................................................................ 10/15 9.00 ........................................................................... 10/5 11.40 Willis, V ................................................................ 9/22 13.80