Grey'S Colonial Acres Boarding Home For The Aged

GREY'S COLONIAL BOARDING HOME 877 Kenneth W. Grey, Jr. and Ada N. Grey d/b/a Grey's Colonial Acres Boarding Home for the Aged and International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, Local Union No. 538, AFL-CIO.' Case 6-CA-14534 16 December 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN, BABSON, STEPHENS, AND CRACRAFT On 29 June 1982 Administrative Law Judge Ben- jamin Schlesinger issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief in opposition to the Respondent's exceptions. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,2 and conclusions and to adopt the recommended Order. We agree with the judge that the Respondent violated Section 8(a)(3) and (1) of the Act by dis- charging employees Janet Bosco, Nancy Fabian, Jennie Fusaro, and Candy Graff for their activities on behalf of the Union, Local 538,3 and also violat- ed Section 8(a)(1) of the Act by threatening em- ployees with surveillance and interrogation of their union activities, threatening to withdraw future wage increases, promising to implement new work schedules and to increase shift time, and thereafter implementing a new work schedule in order to dis- courage employee support for Local 538. We also agree with the judge that Local 538 enjoys the sup- port of a majority of the Respondent's employees ' On 1 November 1987 the Teamsters International Union was read- mitted to the AFL-CIO Accordingly, the caption has been amended to reflect that change 2 The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings J In affirming the judge's finding that the Respondent had knowledge of its employees' union activities and that the discharges violated the Act, we emphasize that not only is this a "small plant," but the Respondent's co-owner, Ken Grey, admitted that there was a grapevine from which he would always find out information about what the employees were doing and thinking The four discharged employees discussed their dissatisfac- tion with working conditions for several months, and at the time of the discharge the overwhelming majority of the unit employees knew of the union campaign This, taken together with the sudden discharge of the four employees the day after the first union meeting and on the day when card solicitations were taking place on the Respondent's premises, war- rants a finding that the Respondert knew of the union activities Member Babson agrees that the circumstantial evidence here supports an inference of employer knowledge of the employees ' union activities He therefore finds it unnecessary to pass on the judge's additional reli- ance on the "small plant" doctrine in an appropriate unit by virtue of the fact that 13 of the 19 unit employees signed either authoriza- tion cards or dues-checkoff cards on behalf of Local 538,4 and that in the circumstances of this case, a bargaining order is appropriate Our dissenting colleagues object to our counting the four dues-checkoff cards as evidence of em- ployee support for Local 538 because they find "nothing on the face of the card to suggest that its execution was to be construed either as an expres- sion of the signer's support for Local 538, or as an authorization to Local 538 to represent the signer for collective-bargaining purposes." They suggest that the checkoff card only authorizes the Re- spondent to deduct from the employee's wages "all initiation fees, reinitiation or reinstatement fees, membership dues and uniform assessments" and that, consequently, the cards cannot be used for the purpose of determining majority support. Our dis- senting colleagues' argument is clearly without merit. In Lebanon Steel Foundry, 33 NLRB 233, 239 (1941), enfd. 130 F.2d 404 (D C. Cir. 1942), cert. denied 317 U.S. 659 (1942), the Board held: [A]n employee who signs such a check-off card thereby clearly evinces a desire to have the union in whose favor the check-off is au- thorized negotiate a contract with his employ- er as his collective bargaining representative. This seems to us the reasonable intendment of the check-off cards, and no evidence was ad- duced or offered in the present proceeding to show that the respondent's employees under- stood otherwise In enforcing that Board decision, the court of ap- peals further noted that to interpret the cards as not necessarily indicating an intent to support the union and authorize it to bargain for the signers would be to assume that the signers were deliber- ately engaging in a "futile act," because dues could not be checked off if the union were not the em- ployees' lawful bargaining representative. Lebanon Steel Foundry v. NLRB, 130 F.2d 404, 408 "The card must be given some effect," the court con- cluded, and that "can be done only if it is effective to give authority to bargain collectively " In the instant case, there is testimony by solici- tors and cardsigners that the employees were told that by signing the card, the Union would bargain for and represent them. Thus, Lebanon Steel is squarely on point. Indeed, the language of the 4 In total, nine authorization cards and four dues-checkoff authoriza- tion cards were signed 287 NLRB No. 89 878 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD checkoff form s as well as the testimony of the signers and solicitors concerning what was said at the time of the solicitation, substantially supports the conclusion that representation by the Union was contemplated. In the absence of a union-securi- ty clause, we can envision no other explanation for the voluntary signing of a dues-checkoff card.6 This result is consistent with NLRB v. Gissel Pack- ing Co., 395 U.S. 575, 606 (1969), in which the Court stated- [E]mployees should be bound by the clear lan- guage of what they sign unless that language is deliberately and clearly canceled by a union adherent with words calculated to direct the signer to disregard and forget the language above his signature. The Court in Gissel was referring to statements that the cards will probably be used first to get an election, and found no inconsistency concerning the statements and the card's language. Certainly, in the instant case, there is nothing inconsistent in soliciting signatures on cards authorizing deduc- tions for union dues, fees, and assessments, and stat- ing that the Union would bargain for the employ- ees.7 5 in addition to the above-quoted language, the dues-checkoff card also contains the following language This authorization shall be irrevocable for a period of one year or until the termination of the applicable collective bargaining agree- ment The reference to such an agreement surely contemplates representation by the Union, otherwise it is meaningless 6 Our dissenting colleagues point to certain factual differences between Lebanon Steel and the present case While we agree that factual distinc- tions can be made between the two cases, such distinctions in no way undermine the basic holding in Lebanon Steel that an employee who vol- untarily signs a union checkoff card demonstrates a desire to have that union act as his or her representative in fact, without a collective-bar- gaining agreement containing a checkoff provision, there would be no obligation on the Respondent to deduct dues and fees pursuant to the checkoff and remit them to the Union That being the case, the execution of the checkoff card by the employee would be an exercise in futility- unless, as evident here, the employee intended it to designate the Union as his or her bargaining representative 7 Our dissenting colleagues, without citing any specific language in their opinion, suggest that the Supreme Court in NLRB v Gissel Packing Co, supra, implicitly overruled Lebanon Steel However, the Court in Gissel framed the issue as "whether a union can establish a bargaining ob- ligation by means other than a Board election and whether the validity of alternate routes to majority status, such as cards, was affected by the 1947 Taft-Hartley amendments " 395 U S at 595-596 (emphasis added) The Court continued to recognize the longstanding precedent that a union "could establish majority status by other means under the unfair labor practice provision of § 8(a)(5)- by showing convincing support, for instance, by a union-called strike or strike vote, or, as here, by possession of cards signed by a majority of the employees authorizing the union to represent them for collective bargaining purposes " Id at 597 (emphasis added) These references to means of establishing majority support are merely illustrative rather than exclusive We find support for this posi- tion, and for our conclusion that Gissel did not overrule Lebanon Steel, in the Court's citation of its own decision in United Mine Workers v Arkan- sas Flooring Co, 351 U S 62 (1956), for the proposition that "a 'Board election is not the only method by which an employer may satisfy itself as to the union's majority status,' 351 U S , at 72, n 8, since § 9(a), 'which deals expressly with employee representation, says nothing as to For these reasons we agree that the judge prop- erly counted the four dues-checkoff cards as evi- dence of employee support for Local 538 and, as noted, further agree with his finding that Local 538 enjoyed majority support among the Respondent's unit employees and that a bargaining order is needed to remedy the effects of the Respondent's unfair labor practices. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Kenneth W. Grey, Jr. and Ada N. Grey, d/b/a Grey's Colonial Acres Boarding Home for the Aged, Kittanning, Pennsylvania, its officers, agents, successors, and assigns, shall take the action set forth in the Order. CHAIRMAN DOTSON and MEMBER JOHANSEN, 'dis- senting in part. We agree with our colleagues and the judge that the Respondent in various manners violated Sec- tion 8(a)(1) of the Act.i We do not, however, agree with their finding that Local 538 has demon- strated that it enjoys the support of a majority of the Respondent's employees in an appropriate unit. Our colleagues' finding that Local 538 obtained majority support among the Respondent's employ- ees is premised on the fact that of the 19 employees in the unit, 9 signed membership authorization cards designating Local '538 as their bargaining rep- resentative, and 4 signed dues-checkoff authoriza- tion cards which our colleagues find are indicative of employee support for that labor organization. Contrary to our colleagues, we find that the dues- checkoff cards signed by these four employees how the employee's representative shall be chosen,' 351 U S , at 71 " Gissel, 395 U S at 597 At one of the cited passages in Arkansas Flooring, the Court itself had relied on the court of appeals decision enforcing the Board's order in Lebanon Steel and, in particular, a page in that decision emphasizing the necessity for "commonsense" rules for construing an em- ployee's grant of bargaining authority Lebanon Steel Foundry v NLRB, supra, 130 F 2d at 407, cited in 351 U S at 71 We find it impossible to conclude that the Court intended to overrule Lebanon Steel in the same decision in which it cited with approval one of its own prior cases that had relied on it i Member Johansen also agrees with the majority that the Respondent violated Sec 8(a)(3) and (1) of the Act when it discharged employees Bosco, Fabian, Fusaro, and Graff Chairman Dotson does not agree that the discharge of the four em- ployees violated the Act In this regard he notes that there is no direct evidence that the Respondent knew of the employees' union activities prior to discharging them and that these employees, in fact, concealed their activities from the Respondent Unlike his colleagues and the judge, Chairman Dotson will not impute such knowledge on the basis of the "small plant" doctrine The ambiguous statements made by the Respond- ent's owner are, in his view, insufficient to establish such knowledge Under these circumstances, he finds that the General Counsel has not es- tablished that the discharge of these employees was related to their union activities and, accordingly, would dismiss these complaint allegations GREY'S COLONIAL BOARDING HOME cannot constitute evidence of their support for Local 538. The Board has long held that where the purpose of a card is clearly and unambiguously stated on its face, it would give effect to the card's stated pur- pose and would not inquire into the cardsigner's subjective intent when signing the card.2 As point- ed out by the Board in Levi Strauss, supra, 172 NLRB at 733 "[a]n employee who signs such a card may perhaps not understand all the legal rami- fications that may follow his signing, but if he can read he is at least aware that by his act of signing he is effectuating the authorization the card de- clares." The Board's view in this regard was upheld by the Supreme Court in NLRB v. Gissel Packing Co., 395 U.S. 575 (1969), which stated (at 606) that "employees should be bound by the clear language of what they sign unless that language is deliberately and clearly canceled by a union adher- ent with words calculated to direct the signer to disregard and forget the language above his signa- ture."3 Applying the above principle to the present case, it is clear that, contrary to our colleagues and the judge, the dues-checkoff cards signed by the four employees do not constitute evidence of their sup- port for Local 538, or of their desire to be repre- sented by that organization. Rather, the language on the face of the checkoff cards clearly indicates that they were intended to serve as nothing more than an authorization for the deduction of fees and dues. Thus, the checkoff card authorizes the em- ployer to deduct from the employee's wages "all initiation fees, reinitiation or reinstatement fees, membership dues and uniform assessments as re- quired" by the labor organization whose name ap- pears thereon,4 and further states the conditions under which the authorization can be revoked. Other than the above language, there is nothing on the face of the card to suggest that its execution was to be construed either as an expression of the signer's support for Local 538, or as an authoriza- tion to Local 538 to represent the signer for collec- tive-bargaining purposes.5 l Cumberland Shoe Corp, 144 NLRB 1268 (1963), enfd 351 F 2d 917 (6th Cir 1965), Levi Strauss & Co, 172 NLRB 732 (1968) 3 Although the issue in Cumberland Shoe, Levi Strauss, and Gissel Pack- ing involved the effect to be given to authorization cards, the reasoning and holding in those cases apply equally to situations where, as here, the question raised is the effect to be given to a dues-checkoff authorization card a Local 538's name does not appear anywhere on the face of the dues- checkoff cards signed by the four employees s The majority's reliance on the Board's earlier decision in Lebanon Steel Foundry, 33 NLRB 233 (1941), is misplaced In our view, that deci- sion was implicitly overruled by the Supreme Court in NLRB v Gissel Packing Co, supra Further, we note that that decision is, in any event, factually distinguishable from the present case For example, the Board's finding in Lebanon Steel, that the dues-checkoff cards signed by employ- 879 In view of the above facts, we would not count the 4 dues-checkoff cards as evidence of employee support for Local 538 and, consequently, would find that Local 538 does not have the support of a majority of the Respondent's employees in an ap- propriate unit, having obtained valid authorization cards from only 9 of the 19 employees in the unit. A bargaining order under these circumstances is clearly inappropriate.6 ees constituted an authorization to the union to represent them, was based on evidence showing a prior custom and usage of such cards for that purpose, a factor not established here Further, unlike the present case, the employer in Lebanon Steel never questioned the validity of the cards or the union's majority status prior to engaging in negotiations with the union For these reasons we find, contrary to the majority, that the Lebanon Steel decision is not controlling here 6 Gourmet Foods, 270 NLRB 578 (1984) Leone P. Paradise, Esq., for the General Counsel. Henry W. Ewalt, Esq. and John DiClemente, Esq. (Brooks & Ewalt), of Pittsburgh, Pennsylvania, for the Re- spondent. Raymond Baker and Richard Sharkins, of Ford City, Pennsylvania, for the Charging Party. DECISION STATEMENT OF THE CASE BENJAMIN SCHLESINGER, Administrative Law Judge. This proceeding was heard before me in Pittsburgh, Pennsylvania, on February 1-5 and 19, 1982, and in- volves four discharges and other alleged violations of Section 8(a)(3) and (1) of the National Labor Relations Act 29 U.S.C. § 151 et seq., so serious, the General Counsel contends, that a bargaining order is required to remedy them pursuant to NLRB v. Gissel Packing Co., 395 U.S. 575 (1968). Respondent Kenneth W. Grey Jr. (Ken) and his wife, Ada N. Grey (Ada), doing business as Grey's Colonial Acres Boarding Home for the Aged (the Home), denied that it violated the Act in any manner and that, even if it did, a Gissel bargaining order should not be granted. On the entire record,' including my consideration of the briefs filed by the General Counsel and Respondent and particularly my observation of the demeanor of the witnesses, I make the following i The parties jointly moved to correct the official transcript in one re- spect, and the General Counsel individually moved to correct the tran- script in other respects, to which there was no opposition The motions are granted and the transcript is amended accordingly The relevant docket entries are as follows The unfair labor practice charge was filed on May 7, 1981, and amended on June 29, 1981, by Charging Party Inter- national Brotherhood of Teamsters, Chauffeurs , Warehousemen and Helpers of America, Local Union No 538 (the Union), complaint issued on June 30, 1981, which was amended on July 23, 1981 , and further amended at the hearing 880 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. JURISDICTION I find, as Respondent admits, that it is a jointly owned sole proprietorship engaged as a health care institution in the operation of a nursing and boarding facility for the aged in Kittanning, Pennsylvania. Based on a projection of its operations since October 22, 1980, at which time Respondent commenced its operations, Respondent in the course and conduct of its business will annually derive gross revenues in excess of $100,000; and since October 1980, Respondent purchased and received at the Home products, goods, and services valued in excess of $18,000 from other enterprises, including Sky Brothers, Jefferson Wholesale, John Groves, Continental Topper, Alen's Market, and R&B Institutional Sales, all located in the Commonwealth of Pennsylvania and each of which had received the products, goods, and materials directly from points located outside Pennsylvania I conclude that Respondent is now, and has been at all times materi- al, an employer engaged in commerce within the mean- ing of Section 2(2), (6), and (7) of the Act and a health care institution within the meaning of Section 2(14) of the Act I further conclude, as Respondent admits, that the Union is, and has been at all times material, a labor orga- nization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES From the perspective of the General Counsel's case, the facts surrounding the discharge of Janet Bosco, Nancy Fabian, Jennie Fusaro, and Candy Graff (some- times referred to as the four employees) are simple The four, all longtime employees,2 were suddenly discharged by telephone calls from Ken at 11 p.m on April 30, 1981,3 the day following the employees' first union meet- ing at which they signed union authorization cards, on the same day that further union activities were conduct- ed, and 8 hours after the end of their normal work shifts. No prior warning had been given to any of them, and Ken's reasons for notifying them that their services were no longer needed (no reason was given to Fusaro) were indicative of discharges for an illegal purpose. The mass discharge of union supporters, without prior notification and coming on the heels of their first attempts at self-or- ganization, has been deemed sufficient, without more, to support an inference and finding of union animus, knowl- edge of union activities, and illegal motivation. NLRB v. Great Dane Trailers, 388 U S. 26 (1967); Syracuse Dy-Dee Diaper Service, 251 NLRB 963, 966-967 (1980). Respondent, however, contends that the employees' union activities did not motivate its actions Instead, it argues as follows: Grey and his wife, Ada, assumed own- ership of the Home in October 1980 and, at an earlier meeting with employees, announced that they were new to the operations of the Home, had been convinced by 2 Prior to October 22, 1980, the Home was operated by William Alt- meyer under the name of Altmeyer Colonial Acres Bosco was first em- ployed by Altmeyer in March 1976, Fabian , April 1977, Fusaro, June 1977, and Graff, April 1974 a All dates refer to 1981, unless otherwise stated Altmeyer not to make any personnel changes immediate- ly, and intended to watch over the operations for 6 months, at which time they would then decide what changes, if any, of personnel and operating procedures were required. On April 30, a Lois Wingard visited the Greys and complained that certain nursing staff employ- ees were taking money and checks from her relative and one of the residents, Eleanor Montgomery The Greys confronted the morning and afternoon employees at shift change4 with Wingard's charges, told them that it was always against Respondent's policy to accept money from residents, and asked who had been responsible. Al- though one or more employees confessed, Bosco, the re- cipient of more gifts than perhaps all other employees combined, said nothing. Apparently disenchanted with Bosco's silence, the Greys decided to terminate her, and, feeling that the time was ripe to make a clean sweep of less than adequate personnel, decided to review all the personnel files to determine who else should join Bosco as a former employee of Respondent. Ken and Ada talked about the performance of their staff all afternoon and evening, reviewed all personnel files, and finally de- cided to terminate the four, Ken notifying each of them about 11 o'clock that evening. Respondent alleged that not only were the complaints about Bosco and the subse- quent review of its employees' work habits its sole moti- vating factors, but also that it had no knowledge' that any union activities were being engaged in, no less by whom, and no animus against the Union in any event There are, however, a number of facts that cast doubt on Respondent's contentions, not the least of which is Respondent's discharge. of employee Eleanor Gearhart in January for thwarting Respondent's attempts to run the Home efficiently and to make changes necessary to that goal. Gearhart's problems of attitude, including Ken's complaint that she would not look him in the eye, were similar to those reasons relied on by Respondent for its discharge of Fabian, Fusaro, and Graff.5 Thus, there was no impediment to their earlier discharge and no clear commitment that Respondent would not make personnel changes prior to the end of the 6-month period. In a sense, the Gearhart discharge sustains other of Respondent's claims. It was clearly not based on union activities; indeed, her discharge gave partial impetus to the employees' attempt to organize Further, Gearhart was discharged without earlier warning and with no reason given to her, somewhat similar to the manner in which the four employees were discharged. But what distinguishes her discharge from the four at issue is that the Greys discharged her when they found that they could not work with her. Here, they rely on the same reasons for at least three discharges, existing for up to 4 months, but they made no move to correct it. Rather, Respondent urges in essence that they were required to continue to employ their employees for at least 6 months, and their 6-month review, caused by the Win- gard complaint, led them to the discharge, a defense that 4 The shift change occurred about 3 p in The day-shift employees worked from 7 am to 3 p in The afternoon shift worked from 3 to I1 p in Graff did not work on April 30 5 R Br 24 GREY'S COLONIAL BOARDING HOME 881 might be plausible if Gearhart had not been discharged, but that, under these facts, cannot withstand scrutiny 8 I find that none of the adverse criticisms aimed at the four employees were deemed by the Greys, even if I be- lieved them all, of sufficient gravity to warrant any disci- plinary action , otherwise, like Gearhart, they would have been discharged I was particularly unimpressed with Respondent's reasons for discharging Fusaro, Ken's major complaint being that she declined to work an addi- tional day every other week. But Ken asked Fusaro to work the additional day in December 1980, more than 4 months before her discharge , and, when she declined to do so, Ken obtained other help Ada's claim that Fusaro was rough and did not have much patience with the resi- dents and hurt their feelings is similarly unavailing be- cause no action was taken against her, even though Re- spondent argues that satisfactory treatment of residents and providing them with adequate care "are essential to the continued success and operation or' the Home.7 Not only do I find that Fusaro was not rough or hurtful to her wards, noting that Respondent never opposed Fu- saro's application for unemployment benefits (Respond- ent opposed the applications of the other three), but also it would be wholly inconsistent to find otherwise, for Ken's request of Fusaro to work additional days demon- strates that Fusaro was a valued employee and, there- fore, that Ada's claim was unfounded and should not be believed.8 Because Ken joined in that claim and took what I deem to be an entirely inconsistent position, his credibility is at best tainted Without a sound reason asserted for Fusaro's dis- charge, the law permits the inferences that Respondent's motivation lies elsewhere and that the discharge was ille- gally motivated Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466, 470 (9th Cir 1966) If hers was so motivat- ed, what of Fabian, who did nothing on April 30 that Respondent relied on for disciplining her The paucity of reasons for discharging Fusaro was not lacking as to Fabian Indeed , some of the reasons relied on by the Greys at hearing might be considered, if true, so grave that Respondent would have earlier discharged her Thus, Fabian did not clean up spilled jelly beans for days, despite Ken's requests for her to do so, she as- sumed managerial functions by rearranging work sched- ules to lessen her own workload, she did not attend to the residents' needs, when she did so, she gave inad- equate dental care and physically injured one patient, she deliberately refused to cooperate with the Greys' at- tempts to run the Home efficiently 9 Respondent 6 Ken never, in fact , testified that he announced to the employees in July 1980 that he would retain them for 6 months He said only that Alt- meyer asked the Greys to keep the employees for "a period of time" and the Greys agreed R Br 23 B Ken testified that he did not discharge Fusaro but laid her off indefi- nitely in order to force Fusaro to accept 4 days of work each week be- cause she would then need the money I find this wholly incredible In addition , I note that at the time of the hearing , Respondent employed one employee who worked only 3 days each week, I day every other week less than Fusaro worked 9 Fabian's alleged refusal to accept the Greys, to cooperate with them, and to look them in the eye were the same complaints that prompted Ken's discharge of Gearhart months before argues:10 "Certainly , injuring residents and failure to take proper care of them are sufficient offenses for which serious discipline may be imposed Further, lack of proper care of residents would do serious damage to Re- spondent's business and could result in imposition of li- ability " I agree with this statement, assuming that the underlying events took place as alleged The problem with Respondent 's list of offenses is that it is so long that if they are true, it is improbable that Fabian ever would have lasted as long as she did Simi- larly, Graff was accused of not taking proper care of residents; not walking them, despite knowing that this was important and despite Ken's repeated requests that she do so; taking excessively long lunch and coffee breaks and taking unauthorized breaks so that she was not available when needed, having a rebellious attitude and refusing to change her attitude , despite repeated dis- cussions with the Greys Here, again , I cannot conceive that Graff remained as an employee as long as she did, if the Greys' account were credited I find that these events relied on did not take place as alleged by Re- spondent and credit the denials of Fabian '' and Graff. In any event, even if the incidents occurred , it is obvious that Respondent did not consider that they were as seri- ous as the Greys would now have me believe I find compelling that the only employees selected for banishment from the Home were persons who had signed union cards the day before At least two of them, Graff and Fusaro, had been instrumental in advocating employees' organization - Graff arranged the union meet- ing, which was held at her house , Fusaro contacted other employees the next day to obtain further support for the Union . Fabian was perceived as a follower of Graff, whatever Graff did, Fabian was sure to follow. Although Respondent argues that it had no knowledge of the employees' union activities, the selection of only union adherents may not be looked at as merely coinci- dental Hedison Mfg. Co., 249 NLRB 791, 804 (1980), enfd . 643 F 2d 32 ( 1st Cir. 1981) It is accurate that there is no direct proof that the Greys were aware , but reason- able inferences may be drawn from various facts present in this record . When Ken notified Fabian of her dis- charge, he told her that it was "due to recent circum- stances" (according to Ken) or "in [light] of today's hap- penings" (according to Fabian ) It may be argued that Ken's remarks were intended to convey hit and Ada's review of Fabian's personnel file as a result of the Win- gard complaint, but a more likely view of Ken's remarks is that he ascertained some new fact about Fabian which he did not know before. He clearly knew how to limit his remarks, for he testified that he discharged Bosco be- cause of "things that have just been brought to our atten- tion," 12 which I understand to be the charges of her 10 R Br 21 11 Fabian did not take issue with the criticism that she did not sweep up the jelly beans Otherwise , Ada described Fabian as "willing," which is completely contrary to her work habits as portrayed by the Greys else- where 12 This and the following quotation are from the i I p in telephonic discharge notifications, as testified to by Ken 882 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD taking money . Further, Ken gave no reason at all to Fusaro, and to Graff he announced "We had made changes before and she had fought against us and we were going to make more changes and I didn 't want the resistance." In the circumstances, the "resistance" more likely refers to Ken's recent obtaining of knowledge about the union organization activities. I also infer that Ken had knowledge of the union ac- tivities because the employee complement was small13 and he admitted that there was a grapevine from which he would always find out information about what the employees were doing and thinking . Weise Plow Mfg. Co., 123 NLRB 616 (1959). This is bolstered, in particu- lar, by the fact that at the time of the discharge about 15 of Respondent's employees knew of the union campaign At least two, Pat Smith, who refused to sign a union au- thorization card, and Vera McMeans, who was a signato- ry to a union authorization card , might well have been the source of the Grey's knowledge . McMeans told the Greys about the union activities but could not recall when, believing it was after the discharges . The weight of her testimony is tempered by the fact that she ap- peared to be clearly aligned with Respondent at the time of the hearing 14 Smith did not testify , and she was the person to whom all employees were to report when the Greys were not available . She had been told prior to the discharges of the union activities of the four employees who were later discharged . Finally, Respondent's motive and, therefore, knowledge, is clearly shown by Ken's latest reference to the four employees as "troublemak- ers," 15 a reference which in all the circumstances, par- ticularly his reference to Fusaro, who was not guilty of any conduct that would qualify her as a "troublemaker," could have meant only that Ken knew that the • four em- ployees were union adherents. Wright Line, 251 NLRB 1083 (1980), enfd . 662 F 2d 899 (1st Cir 1981), required the General Counsel, in a dual-motivation case, to make a prima facie showing to support an inference that the protected union activities of the employees involved was a "motivating factor" in the employer's decision to discipline them . The Board holds that, at that point, the burden shifts to the employer to demonstrate that the same action would have taken place even in the absence of the protected or union activities Here, however, I find and conclude that Respondent's 13 Although the four dischargees attempted to keep their conversations private, they and two other employees discussed their dissatisfaction with Respondent's working conditions for 3 months prior to their contact with the Union 14 The employee witnesses sat at the hearing in two distinct groups, attesting to their allegiances The alleged discrimmatees and the General Counsel's other witnesses sat together at one side of the room , Respond- ent's witnesses, including its employees, sat with Ada or with Altmeyer, who transported some of them to and from the hearing 15 The four employees were reinstated by Respondent during the week of June 7, after the unfair labor practice charge had been filed here In October, Ken told employee Myrna Walker that "when he got rid of the troublemakers, the tension around the Home had gone away, but when they came back , the tension came back , the tensions came back too " The Greys made much of the fact that at ' ast three employees led the "resist- ance," Graff being the leader and I'usaro being part of the resistance Again, there is nothing in the record about why Fusaro was so catego- rized, other than what Ken must have known-that she was a union ad- herent - discharges of Fabian, Fusaro, and Graff were motivated solely by its employees' union activities and that Re- spondent violated Section 8(a)(3) and (1) of the Act The issues regarding Bosco are different from those in- volving the other three employees. Whereas I have found that there was no reason that prompted the Greys to examine their work performance, there was indisputa- bly a question raised about Bosco's receipt of numerous checks from Montgomery and her failure to reply to the Greys' question of who had received checks. t 6 Again, what is important is whether these facts motivated the Greys to discharge Bosco or whether the reasons ex- pressed by them were used as a pretext for her dis- charge. Some of the same rationale utilized in the earlier anal- ysis here is pertinent. The list of horrors related by the Greys makes one wonder how Bosco lasted as long as she did. She was portrayed as an utter incompetent, unable to prepare menus, and to cook biscuits. She spent inordinate periods of time with Montgomery, referring her to other doctors and hospitals, 17 and catering to her every need, and then some, causing dissension among the other employees, who had to work harder to please Montgomery. Furthermore, not only did Bosco take money, Ken mentioned as one of his reasons for her dis- charge that she stole furniture when one of the residents died These add up to a most harsh condemnation of Bosco and, even if incorrect but honestly believed to be true, gave firm foundation to a discharge, especially when her work record is culminated by charges of re- ceiving money from a resident. However, Respondent's purported justification is tem- pered by a number of facts, including my finding that the testimony of the Greys is generally not to be trusted. First, because I have found that the Greys gave no com- mitment to continue the employment of Altmeyer's former employees, I cannot credit their insistence that all of these reasons truly motivated them to discharge Bosco. Second, I find some of them simply untrue and disparate. Whereas Ken relied on the accusation of Bosco's theft, he refused to do so in the case of employ- ee Elizabeth Zemko, because the charge had not been verified.18 The attention that Bosco gave to Montgom- ery had specifically been approved by Altmeyer on the ground that Montgomery was one of the higher paying residents and deserved to be catered to. Indeed, one of the alleged criticisms directed at Fusaro was that she re- fused to give a resident a cup of coffee, and Respondent had issued rules to its employees that they were em- ployed to give service to the residents For Respondent now to urge that Bosco was discharged because she gave is There is a conflict in the testimony about whether such question was asked, which I resolve in favor of the Greys, noting particularly that Shirley Harkleroad corroborated their testimony Because Bosco was standing far away from the Greys, it may be that she did not hear the question 17 This was allegedly raised by Wingard on April 30, but Ken recalled that Bosco denied this allegation when confronted with it Because there is no testimony that Ken talked with Bosco on April 30, his conversation must have taken place earlier in any event, Bosco denied that she so ad- vised Montgomery, and i believe her 18 Zemko did not sign a union authorization card GREY'S COLONIAL BOARDING HOME 883 too much attention to a resident appears to undercut the very nature of the purpose of the Home 19 Finally, there remains to be assessed the Wingard com- plaint and whether that was, in fact, the alleged "straw that broke the camel's back " There was much dispute regarding Respondent's prior practice of prohibiting its employees from accepting any gifts from residents Alt- meyer, the Greys, and some of Respondent's witnesses uniformly agreed that such was the rule To the con- trary, the General Counsel's witnesses uniformly testified that they knew of no such rule. I am persuaded that the General Counsel's case is much the stronger 20 The typed rules posted before the Greys assumed ownership of the Home stated nothing. The rule was first set forth in writing by Ken on or about June 1, 1981 Bosco testi- fied without contradiction- (1) that Ada knew that Bosco had accepted a check from a resident to purchase a blan- ket, and Ada said nothing, (2) that another employee re- ported to Ken that she had received a check from a resi- dent, and in reply to her question whether anyone else had received a gift, Ken replied that he had received a check for $10, and (3) that Bosco had at Christmas 1980 placed an order for a resident to purchase two fruitcakes, one for Respondent's employees, which they ate at the Home, and the other for the Greys, to be delivered to their house There was testimony that employees re- ceived fruit, candy, and plants, without objection Graff testified that she had received a check from a resident and asked Ada whether it would be all right to accept it; Ada had no problem with that Respondent acknowl- edged that they had permitted another employee to re- ceive a Christmas check from a resident. Although there is some support in Grafts and the Greys' testimony that employees sought permission from the Greys to accept gifts, I find that there was no such rule and that employ- ees had the right to receive gifts in their own discretion. If they believed it was necessary, they would ask the Greys for permission, but there was no requirement to do so When permission was requested, it was always granted by the Greys 21 I am persuaded, therefore, that the Wingard complaint constituted a convenient pretext for Respondent to dis- charge her 22 The Greys' immediate reaction to the 19 Despite the fact that complaints about Bosco's doing favors for Montgomery commenced in late January or early February, Ada made a memorandum of them only on April 29 I infer that that memorandum was made for the purpose of this hearing and have generally given to Respondent's files as much credit as I have given to the Greys' testimo- ny See also the memorandum to Fusaro's file, dated April, dealing in generalities about Fusaro's past brusque behavior toward residents 20 In so finding, I credit particularly the testimony of Walker, Harkler- oad, and Betty Stewart, all of whom no longer worked for Respondent and had little to gain by altering their testimony 21 Dorothy Peace testified that in 1977 she had accepted a bottle of wine from a resident Altmeyer found out about it through the grape- vine" and told her that it was against the Home's policy She did not know whether the four employees were similarly told about the rule 22 To the extent that Graff was allegedly discharged for accepting checks, a proposition that I discredit, I made the same finding Further, I am not persuaded that one of the reasons for Bosco's termination was that she failed to confess to the receipt of checks Graff was not present at the shift change meeting on April 30 and thus had no opportunity to confess She was still discharged complaint was to consult with their employees and advise them not to accept gifts. The delay in discharging her for more than 8 hours and accompanying her dis- charge with the leading union adherents indicates that the Greys learned of the employees' union activities be- tween shift change at 3 and 11 p m and that no decision regarding the discharge of Bosco had been made until that knowledge had been obtained 23 I therefore con- clude that, but for Bosco's union activities, she would not have been discharged and that Respondent, by dis- charging her, had violated Section 8(a)(3) and (1) of the Act.24 Turning to the other violations alleged in the com- plaint, I find that in early May, Ken called a meeting of employees at which he announced that he knew that some employees (or perhaps he said 30 percent of the employees) had signed union cards, that he did not know who the signers were, that he did not care, but "eventu- ally [or "possibly" or "probably"] I'm going to find out who you are." The General Counsel alleged that this constituted the creation of an impression of surveillance and was particularly threatening in light of his earlier ac- knowledgment of the fact that all the employees knew he had discharged Bosco, Fabian, Fusaro, and Graff, a statement that was contained in the investigatory affida- vit of Harkleroad, which was offered into evidence by Respondent without qualification However, lacking any oral testimony by Harkleroad or corroboration by other witnesses, I refuse to credit it Nonetheless, I still conclude that Respondent violated Section 8(a)(1) of the Act, although not precisely in the manner alleged in the complaint When the Greys re- ceived the Union's representation petition from the Board's Regional Office, they posted at the Home the notice to employees that accompanied it The employees were thus aware that the petition had been filed and that it was supported by a showing of interest in the Union. Ken's statement that he knew that some employees had signed cards was a matter of public knowledge, and the employees could not reasonably glean from his remarks that Ken had found out about union activities from ille- gal surveillance. However, Ken also threatened that he would find out who were the union adherents, and I reject his defense that the meaning of this remark was merely that rumors were frequently spread around, to the employees, he could only have been threatening something more sinister, such as surveillance or interro- gation All of General Counsel's witnessess concur, and I credit their testimony, that Ken also informed the em- ployees that he had talked with his bookkeeper, Marian 23 Gearhart was discharged at the end of her shift No cogent reason was presented by the Greys for their delay in discharging Bosco 24 In finding all the discharges illegal under the Act, I have generally discredited the testimony of the Greys about the reasons for their actions I note that Ken opposed the applications of Graff, Fabian, and Bosco for unemployment compensation benefits but raised only some, but not all, of the reasons for the discharges I specifically find that Ken had shifted those reasons for his own benefit and not for the truth I find no logic to support his testimony that he wanted to oppose the claims, while he knew that he would lose, but he desired to let the employees know what he had on them, but then he did not relate all the reasons 884 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Barker, about giving the employees a raise in June, that he and Barker had agreed on the amount, but that he would not raise wages "until this mess" was cleared up Ken, while not denying the essence of this allegation, 25 testified that he received with the Union's representation petition a Board-published brochure outlining rights of employees in representation elections and was merely re- laying the thought that he was not allowed to grant pay raises because it would look like a bribe But the bro- chure is not that broad, rather, it states as an example of conduct that interferes with rights of employees: "Prom- ising or granting promotions, pay raises, or other bene- fits, to influence an employee's vote by a party, capable of carrying out such promises." Barring evidence of ille- gal motivation, Respondent was well within its rights to grant a previously promised increase'26 but Ken's threat to withhold the increase because of the employees' union and protected activities violated Section 8(a)(1) of the Act. Finally, the General Counsel alleged in her brief that Ken informed the employees that he "was contemplating a number of changes in their working conditions. the elimination of their free lunches, scheduling employees' lunch hour one-half hour earlier because the day shift had too much time on their hands, and the possibility that employees might have to work one-half hour longer to compensate for the two 15-minute breaks and changes in employee shifts." Respondent contends that, although Ken spoke to em- ployees about extending their shift one-half hour, he did so in response to earlier employee complaints about re- porting in 10 minutes before the commencement of their shift; and, although he talked about free lunches, he did so in the context of his accountant's recent advice that the Internal Revenue Service required that he had to deduct social security taxes from the cost-free lunches and, if he were to discontinue free lunches, he would give each employee an increase in wages to cover the cost Of course, this latter statement runs somewhat con- trary to Ken's insistence that he could not make promises to increase wages, because that' was a violation of the Act. But that is relevant only to Ken's credibility. What is substantively important is that, even if I credited Ken's explanation of why these matters were raised in the way that they were, I would still find at least one violation of the Act The General Counsel does not rely on any union demand for recognition or bargaining in this proceeding Without a demand, there can be no violation of Section 8(a)(5) of the Act, even if I were to find, as I do, that a retroactive bargaining order should be granted to remedy the unfair labor practices found here Eagle Ma- 25 It is not clear whether all the employees had been definitively promised a wage increase Some testified that Ken had said merely that he would be giving raises in 6 months "if things worked out well" or it would likely be June or July before he could give a raise Ken's state- ment in May showed that there was an expectation of a raise, which was canceled by the Union's representation petition 26 Upon advice of its counsel, Respondent granted the wage increase retroactively There is no proof that the employees suffered any mone- tary loss, and the General Counsel makes no request for reimbursement of interest Rather, the complaint alleged as the only violation the threat to withhold the increase, rather than the act of withholding it terial Handling of New Jersey, 224 NLRB 1529 (1976), enfd 558 F 2d 160 (3d Cir 1977) The problem of free lunches had been discussed with employees months before Ken's discussion of alternative solutions con- tained a threat to change employees' working conditions, but I am unable to link the threat to union activities, es- pecially when Ken agreed to ensure that the employees would not be hurt monetarily I conclude that Respond- ent did not violate the Act However, Ken's discussion of the extension of the work shift resulted from his belief that he was solving at least one employee's grievance, and such discussion was held in the context of discourag- ing union activities, whether it be looked at as a threat, as the complaint viewed it, or an illegal promise of bene- fits, as Ken thought, and I find, it was The complaint also alleged that about June 1, 1981, Respondent changed the employees' work schedules. Employees on the day shift testified that their shifts were altered from continuous day shifts to 2 weeks on day shift, followed by 1 week on afternoon shift. Ken's de- fense to this change was that some employees had earlier expressed concern about never receiving weekend days off, and the new schedule was adopted to meet that con- cern In that sense, the change constituted the grant of a benefit to some employees to discourage their union ac- tivities I conclude that Respondent violated Section 8(a)(1) of the Act. The final group of alleged unfair labor practices con- cern changes in the following rules adopted June and October. (1) a bar on soliciting and/or accepting finan- cial gifts from residents; (2) a requirement to report to the Greys when any resident asks the employee to pur- chase something, (3) a requirement to help any resident even during the employee's meal period, (4) a rule that the living room is not to be cleaned before 9 p m. on Sat- urdays, (5) a rule prohibiting whispering in the presence of residents; and (6) a rule requiring that beds be changed by the day shift on a resident's shower day The first rule was discussed above and was a new rule, at least as of 3 p.m on April 30 Bosco testified that, when the Greys confronted the employees at the change of shifts, Ken stated that employees were no longer to accept gifts or checks to buy items for residents. One other employee testified that Ken's remark was directed to receipt of checks from Montgomery and, when she asked whether that pertained to another resident, Ken re- plied that it did. The totality of the meeting indicated that the Greys were making clear to employees Re- spondent's policy on the first two rules. Because I have held that they did not have knowledge of the employees' union activities until later, and have credited their testi- mony regarding the Wingard complaint, I conclude that the later written enactment of a rule announced before they had knowledge of any union activities cannot vio- late the Act In addition, the new rule was enacted as a result of the Wingard complaint and not to interfere with, restrain, or coerce Respondent's employees in the exercise of their Section 7 rights 27 Regarding the other rule changes, 27 The rule was enforced later the same day as a pretext to discharge Bosco GREY'S COLONIAL BOARDING HOME Ken stated that the employees' purpose was to serve the Home's residents and to comply with their requests, that cleaning of the living room on Saturday evenings pre- pared the Home for visitors on Sunday; that many resi- dents construed whispering in their presence as a reflec- tion on them, and that it was silly to bathe a resident and thereafter place the resident in an unclean bed It is not the Board's function to determine whether these rule changes are justified Rather, it is the Board's function to determine whether these changes were made in order to affect employees' Section 7 rights and, in the circum- stances here, to discourage their union membership or activities I conclude that there is no factual support for finding that the rules were illegally motivated and rec- ommend that these allegations of the complaint be dis- missed Ili. THE REQUEST FOR A GISSEL BARGAINING ORDER The General Counsel contends that the four dis- charges, together with the other violations found here, constitute a sufficient basis for a Gissel bargaining order. Gissel, 395 U S at 613-614, permits the Board to order an employer to bargain with a union that has demon- strated majority strength prior to the commission of the unfair labor practices the order is meant to remedy An order is appropriate only in "`exceptional' cases marked by `outrageous' and `pervasive' unfair labor practices" and "less extraordinary cases marked by less pervasive practices which nonetheless still have the tendency to undermine majority strength and impede the election process " The General Counsel argued that this proceed- ing falls within both of those categories. Respondent contends, however, that the Union did not represent a majority of Respondent's employees, and the parties are additionally at odds about who should be in- cluded in the appropriate unit It is stipulated that there were at least 19 employees in a unit, an issue being raised regarding the inclusion of Pat Smith and Marian Barker; and I find that the Union obtained cards authorizing it to bargain on behalf of 9 employees The General Counsel offered as additional proof of the Union's majority status dues-checkoff authorizations and assignment cards28 28 The cards read as follows I, , hereby authorize and direct my Employer every month to deduct from my wages all initiation fees, remitatia- tion or reinstatement fees, membership dues and uniform assessments as required by Teamsters Local Union No , or its legal succes- sor I further authorize and direct that these monies so deducted be turned over each month to the Secretary-Treasurer of Teamsters Local Union No This authorization and assignment shall be irrevocable for a period of one year or until the termination of the applicable collective bar- gaining agreement, whichever occurs first, and shall thereafter be automatically renewed for successive periods of one year or until the termination of the applicable collective bargaining agreement, which- ever occurs first, unless written notice is given by me to my Em- ployer and the Union at least 45 days but not more than 60 days prior to the expiration of each one year period or of the applicable collective bargaining agreement, whichever occurs first This authorization and assignment is made pursuant to Section 302 of the National Labor Relations Act, as amended, and is in full force and effect to the extent permitted by the Act 885 signed by four other employees' collective-bargaining representative, are sufficient to demonstrate the employ- ees' intent to become members of the Union and to be covered by a collective-bargaining agreement that would be negotiated by the Union In support, she cites Leba- non Steel Foundry, 33 NLRB 233 (1941), enfd. 130 F 2d 404 (D.C Cir. 1942), cert denied 317 U S 659 (1942), which appeared to be the only direct authority on the effect of checkoff cards in a recognition case 29 Respondent argued that the 40-year-old Lebanon Steel is no longer good law, being superceded by various amendments to the Act, as well as by Gissel, supra 395 U.S at 606, in which the Supreme Court stated [E]mployees should be bound by the clear language of what they signed unless that language is deliber- ately and clearly canceled by a union adherent with words calculated to direct the signer to disregard and forget the language above his signature It followed, Respondent argued, that if subjective intent may not be used to vary the terms of cards that clearly authorize a labor organization to bargain on behalf of the employee-signatory, subjective intent may not be interposed to give authority to collectively bar- gain when the card speaks only in terms of authorizing a checkoff of dues. Assuming, arguendo, that Lebanon Steel is not presently valid, there need be no addition of subjective intent to supply meaning to the four cards at issue Rather, the objective intent was clearly supplied in the conversations testified to by the solicitors of the cards and by the signatories, each of whom related that they were told that, by signing the card, the Union would bargain for or represent them and some of whom were advised that the Union would attempt to better their terms and conditions of employment. The explana- tion of the purpose of the cards does not vary or cancel what the employees signed, instead, it supports what the Board and court of appeals found important in Lebanon Steel. that the execution of the dues-checkoff authoriza- tion evinces a desire by the employee to have the union in whose favor the checkoff is authorized negotiate a contract with this employer at his collective-bargaining representative and, in the context there, could have only that meaning. This is not contrary to current Board law. When an employer refuses to recognize a previously rec- ognized labor organization, it must show that it had suffi- cient objective considerations for believing that the em- ployees no longer wish that union to represent them in collective bargaining. At least one indicator of objective consideration is a dramatic reduction in the number of dues-checkoff authorizations 30 If the revocation of 29 However, see Stoner Rubber Co, 123 NLRB 1440, 1445 (1959), in which the Board stated that proof of majority "may be proved by signed authorization cards, dues checkoff cards, membership lists, or any other evidentiary means " Lebanon has been cited in other decisions, with ap- proval 30 Peoples Gas System, 214 NLRB 944 (1974) It was reversed on appeal sub nom Teamsters Local 769 v NLRB, 532 F 2d 1385, 1389-1390 (D C Cir 1976), in which the court stated that a decision to submit a checkoff authorization does not necessarily, mean that the employee sup- ports the union but may be attributable to confusion, ignorance, or peer pressure No such showing is present here 886 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD checkoffs demonstrates, together with other consider- ations, that employees do no wish the union to represent them, the signing of checkoffs must under Board law support the view that they do wish the union to act as their collective-bargaining representative Finally, my reading of Lebanon Steel is contrary to the contentions of Respondent Neither the Board nor the court of appeals relied on subjective evidence. The court's decision is based solely on objective consider- ations, namely, its understanding of the meaning of the signed cards and the prior practice of the union in using cards to evidence its designation as a bargaining agent. Respondent argues that Lebanon Steel has no modern ap- plication in the setting of an agency shop, where non- union members pay fees to unions without becoming members or desiring to do so, and that it could not be relied on because of the 1947 and 1959 amendments to the Act. The latter argument relying on the passage of time is not appealing because the amendments have little to do with the instant issue 31 Concerning the first argu- ment, even in an agency shop, there is underlying au- thority for the labor organization to bargain collectively for employees, despite the fact they they may not become members of that union.32 I find, therefore, that Lebanon Steel is still valid and sensible law and that there is no compelling reason why I should not be bound by it. The act that four employees agreed to deductions from their pay and assignment of their wages to the Union is, in one sense, more compelling indicia of their allegiance to the Union than a plain authorization card I conclude that, as of April 30, 13 employees had authorized the Union to bargain for them As stated above, the parties were unable to agree on the appropriate unit for bargaining. Their disagreement resulted from a dispute regarding the inclusion of Marian Barker and Pat Smith in the unit Whereas all 19 em- ployees stipulated in an appropriate unit were involved in patient care, kitchen and laundry work, and cleaning, Barker performed only bookkeeping and secretarial func- tions, had access to all employees' personnel files, and worked in the same office as do the Greys She had no contact with either the other employees or their work and did not wear a uniform, as did other employees Indeed, she is Ada's sister-in-law, and, according to Ken, participated in Respondent's decision to raise employees' wages. Her wage rate is $4.90 per hour, significantly higher than the rest of the employees.33 Her name does not appear on Respondent's seniority list, her initials did not appear on the rules and regulations that Ken re- quired all other employees to read and sign, and she worked different hours from all other employees. I con- clude, in agreement with the General Counsel, that Barker did not share any community of interest with any of the other employees, Allegheny General Hospital, 239 NLRB 872 (1978), and that she is at best an office cleri- cal employee Smith, contrary to Barker, engaged in the same kind of work as the other 19 employees However, she was the only person, other than the Greys, to dispense medi- cations, and she had and has full responsibility for the operation of the Home when the Greys were unavailable and had the authority to resolve any complaints that might arise All other 19 employees were directed to refer to her all inquiries regarding patients Her salary was 50 cents higher than the highest of the other 19 em- ployees There is no other evidence indicating a supervi- sory status, and it appeared peculiar that the employees should have sought Smith's support for the Union if she were really considered a supervisor I find that she was not. In any event, in light of my conclusions regarding the number of valid union authorization cards, even if Smith were not included in the unit, there would be no difference either in the Union's majority status (13 of 20 employees) or in the description of the following unit, which I hereby conclude is appropriate All employees who engage in patient care, kitchen and laundry work and cleaning employed by Re- spondent at its Kittanning, Pennsylvania facility, ex- cluding all office clerical employees and guards, professional employees and supervisors as defined in the Act The final issue is whether, in all the circumstances, the unfair labor practices are of such a serious nature that only a bargaining order may remedy them. The proprie- ty of such an order turns on the facts in each case. Here, the employees' attempt to organize was swiftly met with Respondent's immediate punishment. Within a day and one-half, 20 percent of Respondent's employees were dis- charged, including the principal union advocates, Graff and Fusaro Shortly afterward, Ken advised the employ- ees that he did not know who the union adherents were, but he would find out Still later, Respondent changed the work schedule, a meaningful term and condition of employment It cannot easily be undone without making the Union appear as an ineffective mechanism to im- prove employee needs and desires.34 It is true that, after the unfair labor practice charge was filed here, in order to minimize the financial effect of a finding contrary to Respondent in this proceeding, Respondent rehired all four dischargees, but it does not follow that this action relieved the need for a bargaining order35 or that my recommended Order, requiring that 31 Respondent's brief fails to explicate how the amendments changed the course of labor law to abrogate Lebanon Steel 32 In the context of Secs 8(a)(3) and 14(b) of the Act, payment of dues under an agency shop provision is the "equivalent" of membership NLRB v General Motors Corp, 373 U S 734 (1963), Retail Clerks Local 1625 v Schermerhorn, 373 U S 746 (1963) There is no question that membership in a union constitutes authority to represent the employee in collective bargaining 33 Only Pat Smith, discussed infra, earned as much as $4 25 per hour on April 30 Three employees earned $3 75, and the vast majority of the others earned minimum wages of $3 35 34 The Board's traditional remedy for a unilateral change of terms and conditions of employment, accompanied by a bargaining order, is to order the return to the status quo on request of the union This places the union in a rather untenable position to request that the employee cancel the shift change may well cause dissension among certain of the employ- ees who were benefited thereby and who may withdraw their support of the union if it makes such a request If the union does not so request the employer may claim, because of its magnanimity, that the union is not vital to protect employee interests in either event, the employer gains support, which the union may well find difficult to undercut 35 NLRB v Suburban Ford, 646 F 2d 1244 (8th Cir 1981) GREY'S COLONIAL BOARDING HOME the employees be made whole for their loss of pay, with interest, will be sufficient, without more, to cure the vio- lations here. Whether there is, in the words of Gissel, 395 U S at 614, a "possibility of erasing the effects of [Re- spondent's] past practices and of ensuring a fair election by the use of traditional remedies" must necessarily be grounded on an unscientific and unprovable determi- nation of possibilities and probabilities and must look to how employees will perceive Respondent's actions in the future, as a result of its earlier illegal conduct That must rely on the expertise of the Board in assessing the nature of the unfair labor practices and employees' normal reac- tions to them Such assessment is aided in this proceed- ing by the testimony of two employees, McMeans and Keller, who originally signed union authorization cards and at hearing demonstrated their current alignment with Respondent Keller, in particular, I find, discarded her union adherence immediately after her four fellow em- ployees were discharged 36 McMeans, originally express- ing to her fellow employees had organized earlier, did a complete turnaround, ardently opposed her fellow em- ployees' attempts at the hearing, and attempted to make an issue of the validity of her signing of the union au- thorization card in total contradiction to her earlier pre- hearing investigatory affidavit These are only examples of what might be the effect of employees' discharges in the minds of other employ- ees They are sufficient indications and reminders that loss of employment, especially important in the present economic background, is a necessary result of union or- ganization and the exercise of Section 7 rights to such an extent that it is unlikely that employees will forget that Respondent has power to control their economic desti- nies, even if its actions ultimately proved illegal and were administratively or judicially remedied. It has long been held that the discharge of employees because of their union activities is a serious unfair labor practice that "goes to the very heart of the Act," has a residual effect on employees, and taints the possibility of a free election. NLRB v. Entwistle Mfg. Co., 120 F 2d 532, 536 (4th Cir 1941), NLRB v. Jamaica Towing Co, 632 F.2d 208, 212-213 (2d Cir 1980). "Discharges for union activ- ity invariably create a lasting impact on employees, and the impact is especially severe when a well-known union activist is the victim of the discrimination." United Dairy Farmers Cooperative Assn, 257 NLRB 772, 774 (1981). The Board hereafter observed that in a relatively small unit, the impact of an employer's unfair labor practices is exacerbated. United Dairy, 257 NLRB at 773 fn 12, NLRB v. Wilhow Corp., 666 F 2d 1294, 1305 (10th Cir. 1981). Finally, there is the speed of Respondent's re- sponse to its employees' union activities that clearly must be weighed. United Dairy, supra at fn. 13. In view of Respondent's attempt to crush the "trouble- makers' and the "resistance," employees could hardly doubt the firmness of Respondent's resolve. For these reasons, I conclude that the possibility of erasing the ef- 38 I discredit Keller's testimony that she made up her mind before the discharges to ask for her card back She contacted no one on April 30 to make such a request and said nothing to Graff when she advised Keller late that night that Graff and the others had been fired 887 fects of the unfair labor practices and of ensuring that a fair election will be held is slight "and that employee sentiment once expressed through cards would, on bal- ance, be better protected by a bargaining order " Gissel, supra, 395 U S. at 614-615. Pursuant to Board law, the effective date of the bargaining order is April 30, the date on which Respondent embarked on its unlawful conduct. Peaker Run Coal Co., 228 NLRB 93 (1977); NLRB v. Daybreak Lodge Nursing Convalescent Home, 585 F 2d 79 (3d Cir. 1978). IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE The activities of Respondent set forth in section II, above, occurring in connection with the operations of Respondent described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to result in labor disputes burdening and obstructing commerce and the free flow thereof. THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1), (3), and (5) of the Act, I shall recom- mend that it cease and desist therefrom, post an appro- priate notice, and take certain affirmative action neces- sary to effectuate the policies of the Act, including an order requiring Respondent to bargain with the Union and requiring rescission of the new work schedule, on re- quest of the Union. Additionally, I shall recommend that Respondent be ordered to make whole Janet Bosco, Nancy Fabian, Jennie Fusaro, and Candy Graff for any losses of earn- ings they may have suffered by reason of their dis- charges on April 30, 1980, by paying them a sum of money equal to that which they normally would have earned absent the discharges, less earnings during such period to be computed in the manner prescribed in F. W. Woolworth Co, 90 NLRB 289 (1950),37 with interest to be computed in accordance with Florida Steel Corp, 231 NLRB 651 (1977). I shall also recommend, in accordance with the Board's recent decision in Sterling Sugars, 261 NLRB 472 (1982), that Respondent remove from its records any reference to its unlawful discharges of the four employees and so notify them, in writing. Finally, it follows from the recommended issuance of a bargaining order that Respondent's violations of the Act are sufficiently egregious to warrant the entry of a broad cease-and-desist order. Hickmott Foods, 242 NLRB 1357 (1979). On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed38 37 See generally Isir Plumbing Co, 138 NLRB 716 (1962) 38 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations , the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses 888 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ORDER The Respondent, Kenneth W Grey Jr and Ada N Grey, d/b/a Grey's Colonial Acres Boarding Home for the Aged, Kittanning, Pennsylvania, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Discharging its employees because they joined, supported, and assisted International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Union No. 538, AFL-CIO, and in order to discourage the membership in and support and assist- ance of the Union by its other employees. (b) Threatening its employees with surveillance and in- terrogation concerning their sympathies for and activities on behalf of the Union. (c) Threatening its employees with withdrawal of future wage increases in order to discourage them from supporting the Union (d) Promising its employees to implement new work schedules and to increase the hours of each shift, in order to discourage its employees from supporting the Union. (e) Implementing new work schedules of its employees in order to discourage them from supporting the Union (f) In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed them in Section 7 of the National Labor Re- lations Act 2 Take the following affirmative action necessary to effectuate the policies of the Act. (a) On request of the Union, bargain collectively with it as the exclusive collective-bargaining representative of Respondent's employees in the following unit appropri- ate for bargaining with respect to rates of pay, wages, hours, and other terms and conditions of employment and, if an understanding is reached, embody such under- standing in a signed agreement: All employees who engaged in patient care, kitchen and laundry work and cleaning, employed by Re- spondent at its Kittanning, Pennsylvania facility, ex- cluding all office clerical employees and guards, professional a employees and supervisors as defined in the Act. (b) On request of the Union, rescind the unilateral changes of new work schedules of Respondent's employ- ees. (c) Make whole Janet Bosco, Nancy Fabian, Jennie Fusaro, and Candy Graff for any loss of earnings they suffered by reason of Respondent's discrimination against them on April 30, 1981, with interest to be computed as described in the remedy section of this decision (d) Remove from its. files any references to the dis- charges of Janet Bosco, Nancy Fabian, Jennie Fusaro, and Candy Graff on April 30, 1981, and notify them in writing that this has been done and that evidence of these unlawful discharges will not be used as a basis for future personnel actions against them (e) Preserve and, on request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order (f) Post at its Kittanning, Pennsylvania place of busi- ness copies of the attached notice marked "Appendix."39 Copies of the notice, on forms provided by the Regional Director for Region 6, after being signed by the Re- spondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted Reasonable steps shall be taken by the Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material (g) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply IT IS FURTHER ORDERED that the complaint be dis- missed insofar as it alleged violations of the Act other than those found here. as 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 " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice WE WILL NOT discharge our employees because they joined, supported, and assisted International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Union No 538, AFL-CIO, and in order to discourage the membership in and support and assist- ance of the Union by our other employees WE WILL NOT threaten our employees with surveil- lance and interrogation concerning their sympathies for and activities on behalf of the Union WE WILL NOT threaten our employees with withdraw- al of future wage increases in order to discourage them from supporting the Union WE WILL NOT promise our employees to implement new work schedules and to increase the hours of each shift, in order to discourage our employees from support- ing the Union. WE WILL NOT implement new work schedules of our employees in order to discourage them from supporting the Union. WE WILL NOT in any other manner interfere with, re- strain, or coerce our employees in the exercise of the rights guaranteed them in Section 7 of the National Labor Relations Act. GREY'S COLONIAL BOARDING HOME 889 WE WILL, on request of the Union , bargain collective- ly with it as the exclusive collective-bargaining repre- sentative of our employees in the following unit found appropriate for bargaining with respect to rates of pay, wages, hours, and other terms and conditions of employ- ment and, if an understanding is reached , embody such understanding in a signed agreement All employees who engage in patient care , kitchen and laundry work and cleaning , employed by us at our Kittanning, Pennsylvania facility , excluding all office clerical employees and guards , professional employees and supervisors as defined in the Act WE WILL, on request of the Union , rescind the unilat- eral changes of new work schedules of our employees. WE WILL make whole Janet Bosco, Nancy Fabian, Jennie Fusaro, and Candy Graff for any loss of earnings they suffered by reason of our discrimination against them on April 30, 1981 , with interest WE WILL remove from our files any references to the discharges of'Janet Bosco, Nancy Fabian, Jennie Fusaro, and Candy Graff on April 30, 1981 , and notify them in writing that this has been done and that evidence of these unlawful discharges will not be used as a basis for future personnel actions against them KENNETH W. GREY, JR AND ADA N GREY, D/B/A GREY'S COLONIAL ACRES BOARDING HOME FOR THE AGED