Hillcrest Nursing Home

HILLCREST NURSING HOME 5( Alfred Satin d/b/a Hillcrest Nursing Home and Florence Kirsch and Hillcrest Nursing Home Employees Association, Party to the Contract, and Local 875, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Help- ers of America, Party in Interest. Case 2-CA- 15727 August 12, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND TRUESDALE On April 29, 1980, Administrative Law Judge Melvin J. Welles issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings, and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein. The Adminstrative Law Judge found, inter alia, that Respondent violated Section 8(a)(l) and (2) of the Act by recognizing and entering into a contract with Hillcrest Nursing Home Employees Associ- ation at a time when the Association did not repre- sent a majority of Respondent's employees in the unit. The General Counsel excepts to the Adminis- trative Law Judge's failure to find that such activi- ty also violated Section 8(a)(3) as the contract en- tered into contained a union-security clause. We find merit in this exception. The General Counsel alleged separately in the complaint that Respondent violated Section 8(a)(3) in that the union-security provision of the contract does not comply with the requirements of Section 8(a)(3) of the Act. The Administrative Law Judge found that the language of the provision did not contravene the proviso of Section 8(a)(3). He further found, how- ever, that as the recognition of the Association was unlawful, so was the entire contract, and he or- dered that it be set aside. He saw no need, there- fore, for a separate order respecting the union-secu- rity clause. We disagree. In a case such as this where an employer enters into a collective-bargaining agreement containing a union-security provision with a minority union, the 8(a)(3) violation derives from the same facts upon which the 8(a)(2) violation is predicated, and which were fully litigated here. The finding of a 251 NLRB No. 14 violation upon which an order will issue depends not on whether or not the wording of the provi- sion conforms to the proviso of Section 8(a)(3), but on the fact that the existence of such a provision discriminatorily encourages employees to join the minority union.' We therefore find that the actions of Respondent here violated Section 8(a)(3), as well as Section 8(a)(2) and (1), and we shall pro- vide the appropriate remedy of reimbursement to employees for moneys paid to the Association for dues, fees, and other obligations as a result of Re- spondent's actions. 2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modi- fied below, and hereby orders that the Respondent, Alfred Satin d/b/a Hillcrest Nursing Home, Spring Valley, New York, its officers, agents, successors, and assigns, shall take the action set forth in said recommended Order, as so modified: 1. Insert the following as paragraph 2(b) and re- letter the subsequent paragraphs accordingly: "(b) Reimburse all present and former employees for moneys paid by, or withheld from, them on or after May 22, 1978, for initiation fees, dues, or other obligations of membership in Hillcrest Nurs- ing Home Employees Association, with interest thereon computed in the manner provided in Flor- ida Steel Corporation, 231 NLRB 651 (1977), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962)." 2. Substitute the attached notice for that of the Administrative Law Judge. Unal 7ril (Coli Sa , In, 234 NlRB 125h (Ig2 S) 2 Member Jnlklnrl, s l ss aIard Irs hacd n tihe tlnIat . forW111th in hi, dist t Irr ()tcll - .in Odula i ( 'rtotel ntO. 251 N Rl} N* - I Is()l APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD AN AGENCY OF THE UNITED STATES GOVERNMENT WE WIl.L NOT recognize Hillcrest Nursing Home Employees Association or any succes- sor thereto, as your exclusive bargaining repre- sentative unless it has been certified by the Na- tional Labor Relations Board as your exclusive bargaining representative in an appropriate unit. HILLCREST NURSING HOME 5q~~~ 60 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD WE WIIL. NOT give effect to the agreement we executed with the Hillcrest Nursing Home Employees Association, or to any modifica- tion, renewal, or extension of that agreement unless the Hillcrest Nursing Home Employees Association has been certified by the National Labor Relations Board as set forth above. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of the rights guaranteed to them by the National Labor Relations Board. WE wl.l. reimburse, with interest, all pres- ent and former employees for moneys paid by, or withheld from, them on or after May 22, 1978, for initiation fees, dues, or other obliga- tions of membership in the Hillcrest Nursing Home Employees Association. WE WILL. withhold and withdraw all recog- nition from Hillcrest Nursing Home Employ- ees Association, or any successor thereto, until it has been certified by the National Labor Re- lations Board as your exclusive bargaining rep- resentative in an appropriate unit. ALFRED SATIN D/B/A HILLCREST NURSING HOME DECISION STATEMENr OF THE CASE MELVIN J. WELLES, Administrative Law Judge: This case was heard at New York, New York, on February 5 and 6, 1979, based on charges filed June 17, 1978, and a complaint issued August 31, 1978, and amended Septem- ber 5, 1978, alleging that Respondent violated Section 8(a)(1), (2), and (3) of the Act. The General Counsel and Respondent have filed briefs. Upon the entire record in the case,' including my ob- servation of the witnesses, and upon consideration of the briefs, I make the following: FINDINGS OF FACr I. THE BUSINESS OF THE EMPI.OYER AND HE LABOR ORGANIZATIONS INVOLVED Respondent is a proprietary nursing home, with its principal office and place of business at Spring Valley, New York. It derives gross revenues in excess of $100,000 each year. It also purchases and receives goods and materials valued in excess of $10,000 annually from points outside the State of New York. I find, as Re- spondent admits, that it is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the i Pursuant to agreement hetwecn the General Couunsel and Respoird- ent, (.C. Exhs. 10 hrough 16 are hereby received into evidence and in- corporated into the transcript. The General Counsel's letter suhbmitting the aforesaid exhibits and requesting the correction of certain errors in the transcript is hereby designated as ALJ Exh I. arnd ;admitted i, ei- dencc. and the corrections are made as requested Act. Local 875, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, and Hillcrest Nursing Home Employees Association are labor organizations within the meaning of Section 2(5) of the Act. II. THE A.I.IEGEI) UNIAIR ABOR PRACTICES A. The Issues and the Facts The complaint alleges that Respondent, in April 1978, formed and dominated the Association and entered into an unlawful agreement with it, which contained a union- security provision that did not conform to the proviso of Section 8(a)(3) of the Act, thereby violating Section 8(a)(1), (2), and (3) of the Act. It also alleges that Re- spondent threatened its employees with discharge if they opposed the collective-bargaining agreement referred to above in any way, and that it discharged Florence Kirsch on May 4, 1978, because of her union activities on behalf of Local 875 the previous year, and her oppo- sition to the contract with the Association, thereby vio- lating Section 8(a)(3) and (1) as to her. B. Florence Kirsch-Facts The fact that Respondent entered into a contract with the Association containing a union-security provision is admitted, as is the fact that Respondent did discharge Kirsch on May 4, 1978. There is also no dispute as to the "union activities" engaged in by Kirsch in 1977. At that time, in September, she attended a meeting of Respond- ent's employees at a Holiday Inn, with Local 875 dele- gates present. She signed a Local 875 authorization card then, and also successfully solicited another employee, Rosemary Cervone, to sign a card. Cervone was a fellow worker in the activities department. Kirsch spoke with Saul Satin, the activities director and Kirsch's immediate supervisor, a few days later. She approached Satin and told him that his attitude had changed, and that it was "quite impossible" to work under such conditions. He told Kirsch he was disappointed in her because she did not tell him about the Union coming in, that he owed her something. Satin also asked her whether she had signed a union card, and she said that she had. Following that day, according to Kirsch, conditions changed in her department from the former "congenial atmosphere" to Saul Satin's being "grumpy" and insulting in front of other staff. On November 3, the Board conducted two elections at Hillcrest, one for professionals and one for nonprofes- sionals. The Union (Local 875) lost the former election 22 to 2 and the latter election 15 to 0. Kirsch stated, on the stand, that she had voted against the Union. Delores Husted, who was director of nurses for Hill- crest for 5 years, ending in November 1977, testified cre- dibly that Al Satin, Respondent's proprietor, asked her in August 1977 if she could help him get the nurses into a union. Husted subsequently told the nurses that Satin would like them to unionize, but added that if they were smart they would find one of their own. Husted thereaf- ter attended a Local 875 organizational meeting at a Holiday Inn, clearly the same meeting that Kirsch at- HILLCREST NURSING HOME 61 tended, as Husted testified Kirsch was there and Kirsch attended only one such meeting. Husted also testified to promises of benefit and threats to close the facilities made by management officials in relation to the union campaign prior to the November election. She added that the promises were implemented after the election. On December 8, 1977, Carol Medwin was discharged. She was a fellow employee of Kirsch in the activities de- partment. Kirsch was given two warnings at that time by Saul Satin. In one, she was told that another staff member (clearly Medwin) was terminated in part be- cause of Kirsch's "lack of discipline." On November 29, 1978, the Court of Appeals for the Second Circuit en- forced a Board Order, entered pursuant to a formal set- tlement, directing Respondent to make whole Carol Medwin, Floranne Revak, and Gary Berlin, to post no- tices, and to cease and desist from violating Section 8(a)(1) of the Act in various specified, and like or relat- ed, ways or from discriminating against employees in violation of Section 8(a)(3). The next activity of any kind by Kirsch relating to unions occurred late in April 1978. At a meeting called by Alfred Satin to discuss a proposed contract with the Association,2 a verbal exchange occurred between Kirsch and Alfred Satin. Rosemary Cervone testified that Kirsch said the raise for the activities department employees specified in the contract was not sufficient. Satin replied that they (activ ties department employees) were being overpaid, and he could get "any of us for less money." This was repeated back and forth several times. Both Kirsch and Cervone referred to lack of job security in their jobs, saying, "it was a swinging door in the ac- tivity room." Satin said, "I will deal with that later." Kirsch's testimony relative to this meeting was a bit un- clear. According to her, Karen Gornstein told Al Satin that the "girls were dissatisfied with the amount of money they were getting as raises and he replied that they were overpaid anyway and he wasn't giving any more raises and that was it. And he said that we were all a dime a dozen and that we could be replaced any- time.... I said that without a good staff . . . your rating wouldn't have been a good one and he sort of shrugged it off and said, 'Well, you could be replaced anytime.' And I said to him I notice the activity room was a swinging door and he said 'I'll take care of that later."' All this followed a protest by Kirsch prior to Satin's coming to the meeting, 3 about the raise being too small and that she did not like the idea of Alfred Satin running the Association. Alfred Satin's testimony con- firmed that Kirsch was not happy at that meeting with her share of the increases. He denied telling anyone there that they would be fired. About a week or so later, on May 4, 1978, Kirsch was discharged by Saul Satin. He testified that the discharge "was a combination of many things." He proceeded by referring to "excessive use of the phone," "her whole character diminished upon the firing of Carol Medwin in 2 The Association had been recognized as the bargaining agent of a professional group of Respondent's employees. The facts relating thereto are set forth hereafter. 3 Kirsch testified that Alfred and Harry Satin were asked into the meeting after some discussion among those present. December," and the failure of a particular activities de- partment program at the time of her discharge. Kirsch testified that on May 4 Saul Satin told her, relative to the just completed "art project" of the activities department, that "it was a piss poor project." 4 There is a dispute as to the number of warnings given to or received by Kirsch during her employment. Ac- cording to Respondent, she received two warnings on December 9, 1977, and one on each of 4 other days, March 7, March 16, April 5, and April 27, 1978. Accord- ing to Kirsch, only the December 9 warning was given to her. Based on other testimony at the hearing to the effect that warnings are placed in files without employee knowledge, I believe Kirsch that she did not receive the other warnings. It is clear to me, however, that the warnings came from Respondent's personnel files, as Saul Satin testified. Apparently, this involved the memo- rializing of verbal warnings without showing the recipi- ent of the verbal warning the written warning placed in the files. C. Florence Kirsch-Discussion The General Counsel contends that Kirsch was dis- charged on May 4, 1978, in retaliation for her union ac- tivities on behalf of the Teamsters in September 1977, and for questioning the legitimacy of Respondent's rec- ognition of the Association in April 1978. As noted in the facts, Kirsch's involvement on behalf of the Teamsters, by her own testimony, consisted of at- tending a meeting, signing a Local 875 authorization card, and asking a coworker to do so. This occurred in September 1977. Thereafter, she testified, she voted against the Union at the November 3, 1977, election. Seven months later, toward the end of April, Kirsch at- tended the meeting called to discuss the proposed con- tract between the Association and the Company. At either an earlier meeting, or earlier that day before any management official appeared, Kirsch had indicated her view that she was not "too thrilled" with what was in the contract, and that she "didn't like the fact that Alfred Satin was running this Association." When Satin was at the meeting, however, Kirsch's only complaints were about the 10-cent-an-hour proposed increase being insufficient, and the lack of job security. The foregoing represents the sum total of Kirsch's pro- tected activities. The testimony does show Alfred Satin was not exactly enamored of Kirsch's activities on behalf of the Teamsters prior to the election. However, her ac- tivities were not those of a "ringleader"; she was not the mainstay of the Teamsters organizational drive; she merely signed a pledge card and got a fellow employee in the activities department to sign one. Thus, whatever resentment Respondent harbored toward Kirsch in Sep- tember 1977 would have had to survive the overwhelm- ing defeat of Local 875 in the Board-conducted election. And by April 1977, that resentment over, Kirsch's long- past and not very long-lasting union activities would have had to be rekindled by Kirsch's mild objection to I Kirsch conceded that the project wa a "failure," tesillfying also, h aay f explanalion, that the activities department ',as not full 'taffed at the tlime HILLCREST NURSING HOME hi 62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the amount of the pay raise in the Association's contract under discussion in April 1978. The discussion itself oc- curred at a meeting called for the purpose of employees' voicing just such complaints, further diminishing the likelihood of Satin's resenting Kirsch's attitude to the extent of discharging her for it. Against this extremely thin case, Respondent's de- fenses appear at least tenable. Kirsch's admission that the discharge was immediately following the failure of the art project certainly makes the timing of the discharge a factor somewhat more in Respondent's favor than in the General Counsel's. (It occurred at least I week after the meeting at which the interchange between Alfred Satin and Florence Kirsch took place.) And the nature of Re- spondent's complaints about Kirsch was not really refut- ed by Kirsch, although her own testimony puts her in a better light, quite naturally, than does Saul Satin's. The General Counsel argues that Respondent's assert- ed bases for Kirsch's discharge are "a morass of inconsis- tencies." One aspect of this morass, asserts the General Counsel, is the fact that the failed art project concluded on Kirsch's last day of employment, May 4, but the only warning notice relating to that project was dated April 27, 1978. Thus, asserts the General Counsel, Saul Satin "purports to discipline on April 27, 1978, for an event which had not yet occurred. Since that is impossible the likely explanation is that the warning was prepared not while the event was fresh in he mind of Saul Satin, but long after Miss Kirsch was fired." Kirsch's own testimo- ny, however, seems to show that the "failure of the art project" referred to on May 4 concerned something dif- ferent from the substance of the April 27 warning, even as explained in Satin's testimony. At the very least, her own testimony establishes that the "piss poor project" did occur on the day of her discharge, not a week earli- er. The second major inconsistency seen by the General Counsel is Saul Satin's testimony that Kirsch's attitude changed after the firing of Carol Medwin taken in con- junction with the words "lax attitude," referring to Kirsch, in a letter of warning given her when Medwin was discharged. As the testimony here occurred in Feb- ruary 1979, concerning events in December 1977, 1 see no horrible inconsistency in Satin's verbally dating Kirsch's "laxity" from Medwin's discharge, and having in writing dated it just before (and contributing to) that discharge. For all the foregoing reasons, I conclude that the Gen- eral Counsel has failed to establish by a preponderance of the credible evidence that Kirsch was discriminatorily discharged, and shall dismiss this aspect of the com- plaint.5 D. Respondent's Recognition of the Association-Facts and Discussion Alfred Satin, Respondent's owner and proprietor, testi- fied that head nurse Karen Gornstein and charge nurse Helen Weinbrecht approached him "several months" ' lnlikc the (General Counsel, I dlo not regard anything in the inter- chmrigc hclueen Kirsch and Alfred Satin at the meeting in April as being a threat o(f discharge, and I dismiss he K(a)(l) allegation of the complaint rl 1 rspect. before the Company signed a contract with the Associ- ation (the contract was signed May 22, 1978) and asked for "recognition." He told them they would "have to show me." Gornstein and Weinbrecht left, returning what "could have been" 3 months later with three lists of signatures. Satin testified that he granted recognition to the Association on the basis of these lists presented to him by Gornstein and Weinbrecht. The General Counsel contends that this recognition was violative of Section 8(a)(l) and (2) of the Act. He argues that the Association never commanded numerical majority support, so that Respondent's recognition of it was unlawful under the principle of International Ladies' Garment Workers' Union, AFL-CIO [Bernhard-Altman Texas Corp.] v. N.L.R.B., 366 U.S. 731 (1961). He asserts that, even if it should be found that the Association had a numerical majority at any pertinent time, the signatures were procured by supervisors, and hence are invalid. Further, asserts the General Counsel, the undated lists of names relied upon by Respondent as showing the Associ- ation's majority cannot be so used as the "designation" thereon was of separate individuals, not the Association, with these individuals the very supervisors who pro- cured the signatures. Finally, the General Counsel con- tends that the grant of recognition was unlawful because Respondent's activities "in the aggregate rise to the level of domination." None of the three lists forming the basis for recogni- tion is dated, nor does any of the signatures on them have a date appended. Each list contained the typewrit- ten words "We designate" followed by three lines on which to insert a name or names, and then the words, also typewritten, "to represent us to negotiate a contract with the Hillcrest Nursing Home." The first list, with the names "Karen Gornstein RN" and "Helen Weinbrecht RN" appearing following the "We designate," contains 17 signatures. At the hearing, it was agreed by counsel that I of the 17 names, the last one on the list, was inde- cipherable. (I have not been able to do any better.) The second list, with "A. Berman RN" written in, contains five signatures, and the third list, with "I. Stewart" writ- ten in, contains three signatures, including Irene Stewart's. 6 Also, in evidence are five company weekly payroll records, one each for the months of December 1977 and January through April 1978 for weeks ending about the middle of each of the months. The payrolls contain the names of all Respondent's employees, including supervi- sory personnel, and each has well over 200 names. Based on the testimony at the hearing, the exhibits, and various stipulations, it is plain that the number of people in the recognized unit was somewhere in the neighborhood of 50 in each of the months. I consider first the question whether the Association represented a majority of the unit employees when Re- spondent recognized it. Ascertaining the precise date of recognition is, as will be seen, an impossible task. It is difficult enough to narrow the possibilities down on a T his third list also contained the following "(1. Jones-declined signing J Hill)" apparently in Hill's writing, as "Joan Hill RN" appears directl hbelos the quoted parenthetical notation. HILLCREST NURSING HOME 63 given month. Respondent argues that the payroll for the period ending January 15, 1978, should be used, claiming that the evidence "tends to establish" that the designa- tions were signed during January. The General Counsel, on the other hand, asserts that April was the most likely month of recognition. Karen Gornstein and Helen Wein- brecht both testified that they obtained the designations in late November or early December, and that recogni- tion was accorded the Association at that time, with ne- gotiations with Satin beginning "in late November" (Gornstein), and in January, with the Association bar- gaining with the Company "from January until April" (Weinbrecht). These two witnesses, as well as Irene Stewart, were admittedly vague and confused about dates. Lorna Jones testified that she first heard about the As- sociation in the spring of 1978, later modifying that to "between the end of the winter and spring." She was "pretty sure" that this occurred less than 3 months before the April 27 meeting. The third list of names, the one designating I. Stewart has the notation "(L. Jones- declined signing J. Hill RN)" between the second and third (last) signatures on that list. It is clear therefore that when Jones "heard" about the Association was when this list was offered to her and she would not sign it. John Burke, who assisted the "girls" with their con- tract proposals, testified that 'le visited the nursing home once or twice a week following his mother's admission to the home on February 16, 1978. He said that when "the girls found out that I was a retired union official, they told me that they had an organization, and they wanted to draft a contract, so they asked me if I would do so, and I was very happy to do it because if could make some friends for my mother I was very happy to do that." He testified to having had two sessions with the "entire unit," as well as to sessions with Al Satin, with the Committee with him. -Burke testified that the original proposals to Satin were made in April. It is clear, therefore, that the testimony of Gornstein and Weinbrecht about negotiations beginning in November or December, or even January, is far off the mark. Burke only started visiting the nursing home after February 16, and it would have taken at least some time for "the girls" to find out he had expertise in negotiating con- tracts. Alfred Satin himself was so vague and (admitted- ly) unclear and uncaring about precise dates as to make his recollections and estimates scarcely worth consider- ing. Based on the testimony of all witnesses, it does not seem likely that recognition was afforded the Association until at least late March or early April. As the three lists of signatures were also undated, I can only presume that they (the lists) would have been turned over to Satin very shortly after the signatures on them were obtained, and therefore (bolstered in this view by Lorna Jones' tes- timony) that they were signed in late March or early April. I, accordingly, reject the January date of recogni- tion urged by Respondent, in favor of an April or March date. I will analyze whether there was a valid majority with references to all 4 months, however, in light of the uncertainty that still remains. ' There is a serious question whether the lists of signa- tures have any validity at all in terms of proving a ma- jority for the Association. For, as noted above, the words "We designate" are followed by two names (Gornstein and Weinbrecht) on one list, and one more each (Berman and Stewart, respectively) on the other two, with no mention of "Association." However, al- though I am inclined to the view that undated signatures on undated lists with no union or organization of any kind signified thereon are not valid proof of majority, the burden here is on the General Counsel to show lack of majority. 7 This burden, for reasons set forth below, has been met. As noted above, the 3 lists contain a total of 25 signa- tures. One of them cannot be counted for it is illegible. Respondent argues that three of the four committeewom- en, Gornstein, Weinbrecht, and Berman, should also be counted, even though they did not sign the lists (Stew- art, the fourth designee, did sign list number three). The General Counsel contends that 4 of the 24 identifiable signers were in fact supervisors, and therefore cannot be counted. These four are Laverdi, Hill, Tolentino, and Foley. The General Counsel also would exclude Jacobs on the ground that she was an office employee and office employees were not part of the contract unit. Also at issue is whether some of the names on the payroll should be counted as in the unit in I or more months. Two of those named, Dealca and Trevisone, signed the lists. To begin with, I reject the Company's contention that Gornstein, Weinbrecht, and Berman should be counted as if they signed the lists. I have no doubt but that these three were in favor of something, probably their own designation as representatives of the employees to negoti- ate a contact. But Alfred Satin's testimony precludes their inclusion as part of any possible majority. He relied on signatures on the lists, not on some sort of "phantom designation." And that is the question I am now attempt- ing to resolve, whether there was a majority of signa- tures in any of the 4 possible recognition months. Various exhibits, stipulations, and testimony, taken to- gether, clearly support the General Counsel's contention that the signatures of Laverdi, Hill, Tolentino, and Foley should not be counted toward the Association's majority. As to Hill and Tolentino, the stipulation between counsel for Respondent and counsel for the General Counsel ex- plicitly states each to have been a supervisor at all mate- rial times, and this stipulation is confirmed by perform- ance evaluations for each that were introduced into evi- dence. As to Laverdi and Foley, they were at all materi- al times "in-service directors." This job classification was described by Josephine Choe, Respondent's director of nurses, as "directing all in-service continuous education for the staff." And the job description of the "in-service" director category shows "to supervise and guide all nurs- ing personnel on all wings" as part of the functions of that category. I shall accordingly not count the signa- tures of Laverdi, Hill, Foley, or Tolentino in determin- I Arguably, with Respondent's owner, Alfred Satin, having testified that he granted recognition solely on the basis of these lists, their being insufficient to demonstrate a majority is enough to carry the General Counsel's burden HILLCREST NURSING HOME 63 64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing whether the Association had a majority. Counsel also stipulated that Harriet Jacobs was secretary to the direc- tor of nurses at all material times. And Harry Satin testi- fied that "office help," listed as Code No. 0302 on pay- roll records, were not part of the unit. Although Jacobs appeared under Code No. 0302 only in the April payroll, I accept the stipulation of the parties that she was a clerk at all material times, and therefore do not count her sig- nature toward the Association's majority. The only other questions with respect to those employees who signed the lists involve Dealca and Trevisone. The payrolls in evidence seem to show that Dealca's employment ended on March 11, 1978, and that Trevisone's employment ended on March 25, 1978. If that is so, neither signature could be counted in April, and Dealca's could probably not be counted in March. I consider these two along with the rest of the employees whose inclusion in the unit for purposes of a numerical count presents a prob- lem in 1 or more months. The January 1978 payroll contains 57 names with code numbers indicating they are part of the unit. Three of these names are agreed by the parties (in their briefs) not to be in the unit-Choe, director of nurses, Adler, assist- ant director of nurses, and Saul Satin, agreed to be a su- pervisor. And I have already concluded that Hill's, La- verdi's, Tolentino's, Foley's, and Jacobs' designations cannot count toward a majority showing for the Associ- ation; naturally, they are not counted in terms of unit size either. These resolutions lower the unit size to 49 and the number of legible signatures on the lists to 19. There re- mains to be resolved the status of signers Dealca and Trevisone, as mentioned above, as well as of nonsigners Bergstrom, Burton, Faulls, Nack, and Revak, all of whom Respondent would exclude from the unit on the ground that they were last paid prior to the January pay- roll in evidence. The General Counsel would include Revak in the unit on the ground that she was a discri- minatee in the earlier settled case. The General Counsel takes no firm position with respect to Dealca, Nack, Trevisone, and Bergstrom, pointing out that although they were not paid during some of the months involved, other personnel records indicate that they may have been employed at material times. I agree with the General Counsel that Revak should be included in the unit for purposes of determining the Association's majority, or lack thereof, on any particular date, on the basis of the settlement agreement. Although a settlement agreement may not be used for purposes of establishing a violation of the Act, as noted above, it may be used to establish "eligibility" in an election, a for- tiori, to establish "eligibility with respect to determining a majority or lack thereof without an election. It is true that the settlement agreement here did not provide for Revak's reinstatement, but only for backpay. But the backpay for Revak covered the period from her dis- charge in December through July 24, 1978, a period that embraced all possible dates in which the Association's majority status could be at issue. In effect, then Revak was paid for the full period, and it must be presumed that she would have been at work during that period. Accordingly, I deem Revak properly included in the unit. As to the other four, payroll records indicate that Bergstrom was last paid on December 25, 1977; Dealca on March 11, 1978; Nack on December 4, 1977, and Trevisone on March 25, 1978. As to Dealca, there is a vacation request dated June 30, 1978, in the file, as well as indication of absences in October and December 1978. As to Bergstrom, there is evidence of an evaluation for the period from June to December 1978. And as to Trevisone, there is no evidence of any employee separa- tion form in the file. The fact that Dealca and Bergstrom were employed again in June 1978, or shortly thereafter, does not prove their presence during any of the payroll periods in question for which they were not paid, nor is it sufficient to establish that they were in some sort of status that carried with it a reasonable expectation of re- employment. The lack of a separation form in the file for Trevisone is also not a sufficient basis for concluding that she was on the payroll during the months in ques- tion (in her case, during April), particularly in the ab- sence of evidence showing that separation forms were always utilized for a departing employee. As to Nack, however, company records indicate that she returned from a 6-month maternity leave in July 1978. Under set- tled law, she must be counted as part of the unit during the intervening months. As to Burton, the payroll record for January 1978 in- dicates at one point that she was last paid in December 1977. However, subsequent payroll records show a last payment to her on February 4, 1978. Accordingly, she was in the unit in January, but not thereafter. Finally, payroll records show clearly that Faulls should be ex- cluded in March and April; Shakleford in February, March, and April; and Helen Sontag in February. March, and April. There are also, based on the payroll records, additions to the unit-of Sisterenik for the months of March and April, and Farley for the month of April. With these ad- ditions, and recapping all the foregoing resolutions as to which employees were in the unit in each of the 4 months, and how many of them can be counted toward the Association's majority, the following figures emerge: In January, the Association had 19 signers out of 47 in the unit; in February, it had 19 signers out of 44 in the unit; in March it had 18 signers out of 43 in the unit; and in April, it had 17 signers out of 43 in the unit. In sum, whether January, as urged by Respondent, April, as urged by the General Counsel, or February or March, the other two "possible" months during which recognition could have been granted, is utilized as the appropriate month to determine the Association's major- ity status, it is plain that no such status is shown. The most names on the list that are countable toward the As- sociation's majority at any time are 19. And the least number of employees in the unit in any of the 4 months is 43. Even counting the three nonsigner designees, Gornstein, Weinbrecht, and Berman for the Association would not alter this result. The figures in that event would show as ollows: January-22 out of 47; Febru- HILLCREST NURSING HOME 65 ary-22 out of 44; March-21 out of 43; and April-20 out of 43. As the evidence demonstrates that the Association was not the majority representative of the employees at any material time, Respondent has violated Section 8(a)(1) and (2) of the Act by recognizing it and entering into a contract with it. I do not conclude, however, that Respondent's con- duct in this case, in all the circumstances, amounted to domination of the Association. Perhaps, Respondent wel- comed the Association as a buffer against future organi- zational efforts by Local 875. But liking, or even accept- ing with open arms, a particular labor organization, is not unlawful unless the accepted labor organization is not entitled to recognition. As the latter is the case here, I have found that Respondent violated the Act. The other bases upon which the General Counsel relies in urging a finding of "domination" are the alleged supervi- sory status of Gornstein, Weinbrecht, Berman, and Stew- art; assistance to the Association in collecting signatures on company time and property; making nursing home premises available for Association meetings; and the fact that the Association did not "function normally." The evidence fails to establish to my satisfaction that the four employees were supervisors at pertinent times, under the standards set forth by the Board in Wing Memorial Hos- pital Association, 217 NLRB 1015 (1975). Nor does the evidence show that signature; were collected on work- time, the testimony is to the contrary-viz, Weinbrecht's testimony that she collected signatures on "my coffee break," not on worktime. The "meetings" for which nursing home premises were "made available" were ne- gotiation meetings, meetings between management and the Association to discuss the proposed contract. There is nothing untoward about that. The evidence relied upon by the General Counsel to show that the Associ- ation did not "function normally' seems to consist pri- marily of what is quite confusing testimony by Director of Nurses Josephine Choe, who clearly did not under- stand the questions being asked in some respects. For these reasons, I conclude that the General Counsel has not established a case of domination. E. The Alleged Unlawful Union-Security Clause A final allegation of the complaint is that the union- security clause of the May 22, 1978, agreement did not comply with the requirements of Section 8(a)(3)'s provi- so. The contract in evidence contains a union-security clause reading as follows: "As a condition of employ- ment, all employees covered by this Agreement shall, (90) days after the date of execution hereof or hiring become members of the Association and remain members during the term of this Agreement." The words "execu- tion hereof or" are written in ink, not typed. It seems to me that the General Counsel may have seen a typed ver- sion of the contract without the interlineated words, for he stated in his brief that the clause requires "member- ship 90 days after hiring." Be that as it may, I do not read the clause as being in contravention of the 8(a)(3) proviso in terms of its language, as I believe a "which- ever is later" is the purport of the provision, and there was no litigation of this point. Of course, as I have found that Respondent's recognition of the Association was un- lawful, so was the entire contract that followed recogni- tion, including its union-security clause. And, as I shall order that the contract be set aside and recognition with- drawn, there is no need for a separate order respecting the union-security clause in any event. CONCLUSIONS OF LAW 1. Local 875 and Hillcrest Nursing Home Employees Association are labor organizations within the meaning of Section 2(5) of the Act. 2. By recognizing and signing a contract with Hillcrest Nursing Home Employees Association for certain of its employees, Respondent has engaged in and is engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and (2) and Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER8 The Respondent, Alfred Satin d/b/a Hillcrest Nursing Home, Spring Valley, New York, his agents, successors, and assigns, shall: 1. Cease and desist from: (a) Recognizing Hillcrest Nursing Home Employees Association or any successor thereto as the representa- tive of any of his employees for the purposes of collec- tive bargaining unless or until said labor organization shall have been certified by the National Labor Relations Board as the exclusive representative of such employees in an appropriate bargaining unit. (b) Giving effect to the agreement with the Associ- ation executed May 22, 1978, or any modification, re- newal, or extension thereof unless and until it has been certified as the exclusive bargaining representative by the Board. (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Withhold and withdraw all recognition from Hill- crest Nursing Home Employees Association, or any suc- cessor thereto, until it has been certified in the manner aforesaid by the National Labor Relations Board. In the event no exception,s arc filid ais pros ided h Se, 1i)2 4h of the Rules and Regulations of the Naltionlal lthbor Relatiol, Btard. the finld- ings. conlusil,,s, and recomimended Order heret hall, a provided in Sec 1024 of the Rule and Regulation. be adopted h he I Board and beconle its indlilgs. cit;luionll, illd ()rder, aind 11 lhlCl iJctlol thereto shall he deemed 'W ai ed fotr all purpose, HILLCREST NURSING HOME 65 66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Post at its Spring Valley, New York, place of busi- ness copies of the attached notice marked "Appendix." 9 Copies of the notice, on forms provided by the Regional Director for Region 2, after being duly signed by an au- thorized representative of the Company, shall be posted 9 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted By Order of the National Labor Relations Board" shall read "Poslted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." immediately upon receipt thereof and maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places at all locations where notices to em- ployees are customarily posted. Reasonable steps shall be taken by the Company to insure that the notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 2, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith.