Cedar Grove Manor Convalescent Center

National Labor Relations Board - Board Decisions

Jul 29, 1994

314 N.L.R.B. 642 (N.L.R.B. 1994)

642
314 NLRB No. 106
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 We deny the Respondent Union’s request that we reject the Inter-
venor’s exceptions owing to an assertedly defective method of serv-
ice of a copy of these exceptions on the Respondent Union. The In-
tervenor has filed an opposition to this request. We find that the
method of service was not so deficient in the circumstances as to
warrant their rejection.
2 The Respondent Union contends that the judge committed preju-
dicial error by sequestering its designated representative, Raul Al-
drich, because he would be called to testify. Contrary to this conten-
tion, we find that because the judge applied his sequestration ruling
even-handedly to the designated representatives of each Respondent,
it was not prejudicial to the Respondent Union.
3 Exceptions have been filed to some of the judge’s credibility
findings, including his crediting witness Steve Jarema’s voice identi-
fication of Raul Aldrich as the caller who made telephonic threats
to Jarema. The Board’s established policy is not to overrule an ad-
ministrative law judge’s credibility resolutions unless the clear pre-
ponderance of all the relevant evidence convinces us that they are
incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
188 F.2d 382 (3d Cir. 1951). We have carefully examined the record
and find no basis for reversing the findings. Accordingly, we deny
the Respondent Union’s motion that the Board obtain the tran-
scription tape of Aldrich’s testimony at the hearing to make an inde-
pendent evaluation of Jarema’s identification of Aldrich’s speaking
voice.
We also find without merit the Respondent Union’s allegations of
bias and prejudice on the part of the judge. On our consideration of
the record and the decision, we perceive no evidence that the judge
prejudged the case, made prejudicial rulings, or demonstrated bias
against any party in his analysis or discussions of the evidence.
4 In adopting the judge’s finding of an 8(b)(1)(A) violation, we do
not rely on his consideration of the Board’s decision in Windsor
Castle Health Care Facilities, 310 NLRB 579 (1993).
Chairman Gould agrees with the judge’s finding that nothing in
the record justifies revoking the certification of the Respondent
Union as the bargaining agent for the Cedar Grove employees and,
therefore, finds it unnecessary to pass on the judge’s additional rea-
sons for rejecting the Respondent Employer’s affirmative defense to
the complaint.
1 These names reflect the proper names of these labor organiza-
tions, effective February 1, 1992, on motion made by its counsel,
without objection, on the second day of hearing on March 4, 1992.
Cedar Grove Manor Convalescent Center and 1115
Nursing Home and Hospital Employees Union
- New Jersey A, a Division of 1115 District
Council, H.E.R.E., AFL–CIO and District 6,
International Union of Industrial, Service,
Transportation and Health Employees, Inter-
venor
Local 1115, Nursing Home and Hospital Employees,
a Division of 1115 District Council, H.E.R.E.,
AFL–CIO and District 6, International Union
of Industrial, Service, Transportation and
Health Employees. Cases 22–CA–17729, 22–
CA–17749, and 29–CB–7911
July 29, 1994
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND DEVANEY
On May 18, 1993, Administrative Law Judge Robert
T. Snyder issued the attached decision. Counsel for the
Respondent Employer, the Respondent Union, and the
Intervenor filed exceptions and supporting briefs, and
counsel for the General Counsel filed an answering
brief to the Respondent Union’s exceptions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs1 and has
decided to affirm the judge’s rulings,2 findings,3 and
conclusions4 and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent Employer, Cedar Grove
Manor Convalescent Center, Cedar Grove, New Jersey,
its officers, agents, successors, and assigns, and the
Respondent Union, Local 1115, Nursing Home and
Hospital Employees, a Division of 1115 District Coun-
cil, H.E.R.E., AFL–CIO, Westbury, New York, its of-
ficers, agents, and representatives, shall take the action
set forth in the Order.
Bernard S. Mintz, Esq., for the General Counsel, Region 22.
Elaine Robinson, Esq. and Thomas M. Maher, Esq., for the
General Counsel, Region 29.
Peter A. Schneider, Martin Gringer, and Andrea C. Rothman,
Esqs. (Kaufman, Naness, Schneider & Rosensweig, P.C.),
of Melville, New York, for the Respondent Employer.
Richard M. Greenspan, P.C., of White Plains, New York, for
the Charging Party in Cases 29–CA–17729 and 22–CA–
17749 and for the Respondent Union in Case 29–CB–
7911.
Richard Kirschner, Esq., of Washington, D.C., for the Inter-
venor in Cases 22–CA–17729 and 22–CA–17749 and for
the Charging Party in Case 29–CB–7911.
DECISION
STATEMENT OF THE CASE
ROBERT T. SNYDER, Administrative Law Judge. These
consolidated cases were heard by me on October 15, 1991,
and March 4, 5, and 6, 1992, in New York, New York. Ini-
tially, in Cases 22–CA–17729 and 22–CA–17749, the con-
solidated complaint, issued on July 11, 1991, by the Regional
Director, Region 22, alleges that Respondent Cedar Grove
Manor Convalescent Center (Cedar Grove) had refused to
recognize or bargain with 1115 Nursing Home and Hospital
Employees Union-New Jersey A, a Division of 1115 District
Council, H.E.R.E., AFL–CIO1 (1115-New Jersey) as exclu-
sive representative of its employees in an appropriate unit,
following Local 1115 New Jersey’s certification as such ex-
clusive representative. The consolidated complaint also al-
leges that Cedar Grove refused to furnish 1115-New Jersey
with information it requested relevant to its performance as
643CEDAR GROVE MANOR CONVALESCENT CENTER
2 See fn. 1, above.
3 The threats are alleged to have been made on October 11 and
12, 1990, and Local 1115’s petition in Case 22–RC–10234, involv-
ing Cedar Grove, was filed on November 1, 1989.
exclusive collective-bargaining representative and unilaterally
instituted a savings plan for unit employees. By the fore-
going conduct Cedar Grove is alleged to have violated Sec-
tion 8(a)(1) and (5) of the Act. Cedar Grove is also alleged
to have violated Section 8(a)(1), (2), and (3) of the Act by
continuing to deduct dues from the wages of some of its em-
ployees and to remit such dues to District 6, International
Union of Industrial, Service, Transportation and Health Em-
ployees (District 6) the Union which had been the unit em-
ployees’ bargaining representative prior to Local 1115’s cer-
tification.
In its answer Cedar Grove denied committing any unfair
labor practices and interposed, inter alia, an affirmative de-
fense asserting that Local 1115-New Jersey’s abuse, possibly
criminal, of Board process precludes its being accorded sta-
tus as a labor organization or, alternatively, of being the cer-
tified representative of Respondent’s employees.
At the opening of hearing, District 6, which had not been
named as a party in the caption nor provided notice of the
proceeding, appeared by counsel, and successfully moved to
participate in the hearing as an intervenor, based on its status
as prior incumbent bargaining representative whose interests
would be adversely affected by a determination finding merit
to the allegations of the complaint affirming 1115-New Jer-
sey’s status as exclusive representative and dismissing Cedar
Grove’s affirmative defense.
Independent of the foregoing consolidated complaint, the
Acting Regional Director, Region 29, had issued a complaint
in Case 29–CB–7911 on June 17, 1991, alleging that Local
1115, Nursing Home and Hospital Employees, a Division of
1115 Joint Board2 (1115), the name of the labor organization
prior to its name change and affiliation with the AFL–CIO,
by a vice president and agent, by telephone, had threatened
a business agent for District 6, with bodily harm if the agent
continued to give testimony or other evidence before the
Board in Case 29–CB–7618 and in order to discourage ac-
cess to the Board, under circumstances where the threats be-
came known to employees of Oceanside Convalescence and
Rehabilitation Center (Oceanside), and of various other em-
ployers, in violation of Section 8(b)(1)(A) of the Act. The
charge in Case 29–CB–7618 filed by District 6 alleged that
since or about November 15, 1989, 1115 threatened or other-
wise interfered with the employees of named employers, in-
cluding Cedar Grove, because of the exercise by them of
rights guaranteed under Section 7 of the Act, by allegedly of-
fering, with employer assistance, to purchase ‘‘District 6 and
thereby succeed to its exclusive bargaining agent status
among unit employees at various employers with whom Dis-
trict 6 had collective-bargaining agreements.’’ That charge
had been dismissed by the Region and its dismissal had been
sustained on appeal. What was alleged in detail in this
charge and what the Region found and concluded as a result
of its investigation will be discussed, infra. Respondent 1115
filed answer denying any unfair labor practice.
After District 6 was granted intervenor status on the open-
ing day of hearing in Cases 22–CA–17729 and 22–CA–
17749, Respondent Cedar Grove’s counsel amended its af-
firmative defense previously described to now also allege
1115-New Jersey’s conduct in Case 29–CB–7911 in threat-
ening a District 6 representative with bodily harm if he con-
tinued to give testimony in Case 29–CB–7618 as a further
and more specific ground for denying 1115-New Jersey’s sta-
tus as a labor organization or, alternatively, for revoking its
certification as exclusive representative of Cedar Grove’s
unit employees.
Cedar Grove also moved orally at the same hearing to
consolidate the CA and CB complaints described, arguing,
inter alia, that they raised common issues and involved com-
mon parties.
Subsequently, further hearing was postponed pending
issuance of an order by me requiring Cedar Grove to perfect
its motion by serving the Regional Director for Region 29
and all other parties to the CB proceeding with a written mo-
tion seeking the same relief and providing a schedule for re-
sponses. After receiving submissions from the parties, I
issued an order granting motion to consolidate Case 29–CB–
7911 with Cases 22–CA–17749 and 22–CA–17729 and de-
nying the branch of Respondent’s motion seeking to compel
production of certain FBI tapes which Respondent claimed
had been submitted to Region 29 in the investigation of Case
29–CB–7618.
In granting the consolidation, in my order I noted that
while the allegations contained in charge in Case 29–CB–
7618 were dismissed by the Regional Director for Region 29,
such action did not preclude their assertion and litigation as
an affirmative defense in a subsequent unfair labor practice
proceeding, in reliance on Chicago Tribune Co., 304 NLRB
259 (1991). It was the District 6 agent’s testimony in that
charge which allegedly led to Local 1115’s threats on which
complaint issued in Case 29–CB–7911. I concluded that as
the threats alleged in Case 29–CB–7911 related to an alleged
course of misconduct by 1115-New Jersey asserted as a de-
fense to recognizing its status as certified bargaining rep-
resentative in Cases 22–CA–17729 and 22–CA–17749, the
two cases overlapped, and, therefore, in order to avoid exces-
sive costs and duplication of litigation I would order their
consolidation. However, I also noted that I had reservations
about certain matters asserted by Respondent Cedar Grove
and Intervenor and now Charging Party, District 6, which
would have to await their resolution in the presentation and
litigation before me. One concerned whether the course of
the conduct alleged by them was sufficient to warrant the ex-
traordinary relief sought. Standing alone, 1115’s threat as al-
leged in Case 29–CB–7911, was probably insufficient to jus-
tify the vacation of 1115-New Jersey’s certification, see Hol-
iday Inn Palo Alto-Stanford, 298 NLRB 521 (1990). Another
question involved whether Cedar Grove was precluded from
raising the defense at all because of a failure to assert it in
the underlying representation proceeding. Cedar Grove
claimed a lack of knowledge of 1115-New Jersey’s conduct
during the proceeding leading to its certification but the facts
regarding its knowledge and whether it could have known
would have to be presented and tested in the litigation. If no
Local 1115 threats had been communicated to Cedar Grove
employees then they could not have directly affected the out-
come of the representation election, apart from the timing of
their utterance.3 Furthermore, if no threats were commu-
nicated to employees who were or may have been the object
644 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
of 1115-New Jersey’s attempts to ‘‘raid’’ District 6 bar-
gaining units after District 6 allegedly rejected 1115’s buyout
attempt, then the nexus may be lacking for concluding that
the threat restrained and coerced employees from utilizing
the Board in violation of Section 8(b)(1)(A) of the Act.
Hearing resumed on March 4 and 5 and concluded on
March 6, 1992, on the consolidated CA and CB cases. Be-
cause it could be argued that the implications flowing from
the two complaints placed General Counsel in a position of
conflict with respect to 1115-New Jersey, the Charging Party
in the one, and 1115, the Respondent in the other, a separate
counsel for the General Counsel appeared to prosecute the
complaint issued by the Acting Regional Director for Region
29 in Case 29–CB–7911.
All parties were given full opportunity to participate, to in-
troduce relevant evidence, to examine and cross-examine wit-
nesses, to argue orally, and to file briefs. Each of the parties
has filed posthearing briefs. Counsel for 1115-New Jersey
and 1115 has filed separate briefs for each of the two cases
at my request, as Charging Party and Respondent, respec-
tively, each of the counsels for the General Counsel has filed
briefs for the case in which he or she served as proponent
for the complaint, and briefs have been filed by Respondent
Cedar Grove and Intervenor District 6 in the CA proceeding.
Each of these briefs has been carefully considered. On the
entire record in the consolidated cases, including my obser-
vation of the witnesses and their demeanor, I make the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
Respondent, Cedar Grove, a corporation with an office and
place of business in Cedar Grove, New Jersey (the Cedar
Grove facility) has been engaged in the business of providing
health care and related services. During the 12-month period
ending July 11, 1991, Cedar Grove, in the course and con-
duct of its business operations, derived gross revenues in ex-
cess of $100,000. During the same period of time Cedar
Grove purchased goods valued in excess of $5000 directly
from suppliers located outside the State of New Jersey.
Both West Lawrence Care Center, Inc. and Oceanside, em-
ployers with whom, at all times material, District 6 has had
collective-bargaining relationships, the former with principal
office and place of business in the Borough of Queens, New
York City and State of New York, where it is engaged in
the operation of a residential health care facility and the lat-
ter with principal office and place of business in Atlantic
City, Atlantic County, State of New Jersey, where it is en-
gaged in the operation of a nursing home providing nursing
care services, during the year ending December 31, 1990, de-
rived gross revenues from their respective operations in ex-
cess of $100,000. During the same period, West Lawrence
purchased and received at its West Lawrence facility prod-
ucts, goods, and materials valued in excess of $50,000 di-
rectly from firms located outside the State of New York or
from firms located within the State of New York, which
firms purchased the goods directly from outside the State of
New York. During the same period, Oceanside purchased
and received at its Atlantic City facility products, goods, and
materials valued in excess of $50,000 directly from firms lo-
cated outside the State of New Jersey, or from firms located
within the State of New Jersey, which firms purchased the
goods directly from outside the State of New Jersey.
Based on the foregoing, I find that Cedar Grove, West
Lawrence, and Oceanside are employers engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Cases 22–CA–17729 and 22–CA–17749
1. The underlying facts not in dispute
For many years, District 6 represented Cedar Grove’s serv-
ice and maintenance employees who worked 20 hours or
more per week. On this basis alone, I find that District 6 is
a labor organization within the meaning of the Act. In 1989,
1115-New Jersey filed a petition with the Board in Case 22–
RC–10234 seeking to represent these employees. At the hear-
ing held in this matter on November 22, 1989, District 6 in-
tervened in the proceeding, and the parties stipulated that
1115-New Jersey was a labor organization within the mean-
ing of the Act. On February 6, 1990, the Regional Director
for Region 22, issued a Decision and Direction of Election,
directing an election in the unit of employees historically
represented by District 6. District 6 filed a request for review
of the Regional Director’s Decision and Direction of Elec-
tion, which was granted by the Board. On April 5, 1990, the
Board issued a Decision on Review and Order, modifying
the Regional Director’s unit determination to the extent of in-
cluding in the bargaining unit as regular part-time employees
eligible to vote those part-time employees who are scheduled
to work either five 3-hour shifts a week or two shifts every
other weekend as well as on-call employees who regularly
averaged 4 or more hours per week in the last quarter. Fol-
lowing the issuance of a Second Direction of Election on
November 1, 1990, and the conduct of an election on De-
cember 7, 1990, resulting in 61 votes cast for 1115-New Jer-
sey, 0 votes cast for District 6, and 12 challenged ballots, the
Regional Director issued a Supplemental Decision and Cer-
tification of Representative on January 15, 1991, overruling
objections to conduct affecting the results of the election
filed by District 6 and certifying 1115-New Jersey as the ex-
clusive bargaining representative of Cedar Grove’s service
and maintenance employees, more fully described in the cer-
tification. Thereafter, the Board issued an Order denying Dis-
trict 6’s request for review of the Regional Director’s Sup-
plemental Decision and Certification as it failed to raise sub-
stantial issues warranting review.
On or about January 28 and April 8, 1991, 1115-New Jer-
sey by certified letters sent to Cedar Grove requested that the
Employer recognize it as the exclusive collective-bargaining
representative of the employees in the certified unit and bar-
gain collectively with it with respect to rates of pay, wages,
hours of employment, and other terms and conditions of em-
ployment. Cedar Grove did not respond to these requests and
has failed and refused to recognize and bargain with the
Union. 1115-New Jersey also requested Cedar Grove to fur-
nish it with the following information: (1) names and ad-
dresses of bargaining unit employees, showing job titles, date
of hire, weekly salary, and number of hours worked; (2)
amounts of the last three wage changes for the above-de-
scribed employees; (3) wage changes for the above-described
645CEDAR GROVE MANOR CONVALESCENT CENTER
employees; (4) the actual hours worked; (5) a list of all
fringe benefits provided, including medical, hospital, Blue
Cross/Blue Shield or other plans, and life insurance provided,
holidays, and vacation and sick pay; (6) a summary of all
bonuses paid to the employees for the last 3 years; and (7)
any other information of compensation provided.
At the hearing, Cedar Grove admitted that the information
requested was necessary for and relevant to 1115-New Jer-
sey’s performance of its function as the exclusive collective-
bargaining representative of the unit, provided it was prop-
erly certified as such representative. The parties also agreed
that item 6 referred to compensation provided to the unit em-
ployees. Cedar Grove had admitted in its answer receipt of
the Union’s bargaining demands.
Cedar Grove also admitted that since January 15, 1991, it
had continued to deduct dues from the wages of some unit
employees and remit such dues to District 6, contending
however that inasmuch as the Board’s certification of 1115-
New Jersey was improper, District 6 continued to be the rep-
resentative of the unit employees entitled to receive such re-
missions. Cedar Grove further admitted that in about mid-
May 1991, it instituted a savings plan for unit employees
containing borrowing privileges as well as life insurance,
with the possibility that the savings plan could be used to
fund retirement benefits, and that it did so without prior no-
tice to 1115-New Jersey or affording the Union an oppor-
tunity to negotiate and bargain over the terms of the savings
plan, even though the plan was a mandatory subject of bar-
gaining.
Cedar Grove denied the labor organization status of 1115-
New Jersey in its answer, although, as earlier noted, it had
stipulated to that status in the underlying representation pro-
ceeding, and 1115-New Jersey has been certified by the
Board as exclusive collective-bargaining representative in nu-
merous Board representation proceedings conducted in the
last few years in which District 6 participated as incumbent
representative and intervenor.
2. The contested allegations and affirmative defense
1115-New Jersey Business Representative Guy Masters
testified that his organization deals with employers with re-
spect to employee grievances and negotiates collective-bar-
gaining agreements with them, and that employees participate
in the organization, in processing grievances, negotiating
agreements and in union elections.
In spite of the foregoing, Cedar Grove, by its counsel, dis-
puted the organization’s labor organization status, disputing
that I could take judicial notice of its status in the other pro-
ceedings or even that its stipulation to such status in the un-
derlying representation case was binding on it since the mat-
ters it raised in its affirmative defense had not come to its
knowledge until after the representation proceeding closed.
Cedar Grove counsel also acknowledged that while it was re-
lying on the facts underlying its affirmative defense to dis-
qualify 1115-New Jersey from serving as Cedar Grove’s unit
employees’ representative, it was also asserting, as an alter-
native, albeit novel theory, that 1115-New Jersey’s conduct
in seeking to buy out District 6 and in physically threatening
a District 6 agent from filing charges or seeking Board relief
from such activity, rendered it unworthy of status of a labor
organization.
In support of its affirmative defense, Cedar Grove deferred
to District 6 which called two witnesses to support the claim
of alleged abuse of Board process.
The first witness to testify was District 6 President Wil-
liam Perry. He explained that sometime around 1984 or 1985
he was invited to the Manhattan law offices of Morris
Tuchman, an attorney who represents various employers with
whom District 6 has bargaining relationships. Perry was with
Steve Jarema, a business agent for District 6. Present also,
besides Tuchman, was Alex De Laurentis, then director of
organization for 1115, who later died on February 21, 1986.
According to Perry, De Laurentis expressed an interest in
buying District 6 for cash, the money to be paid under the
table, with District 6 in turn agreeing to deliver the nursing
homes it had under contract so that they would recognize and
continue bargaining agreement relationships with 1115 with-
out the consent of its members employed by the various
nursing homes. The process would also avoid Board involve-
ment. Perry refused to agree to the deal, said District 6 was
not for sale, and left the meeting.
As Perry described it, about 1-1/2 years later, Jarema in-
formed Perry that he had been approached by a representa-
tive of 1115 to seek to persuade Perry to consummate the
deal that De Laurentis had offered on behalf of 1115. Perry
advised Jarema to contact the FBI about the matter. Subse-
quently agents of the FBI visited Perry at the District 6 of-
fices, asked to see Jarema, and then departed with him that
day. It was Perry’s understanding that Jarema was wired by
the FBI and had taped conversations with De Laurentis and
other officials of 1115 relating to the buyout offer, as a result
of which District 6 filed charges with Region 29 of the
Board against 1115 relating to 1115’s alleged conduct in
seeking to buy District 6 for cash and in threatening a Dis-
trict 6 agent and employees to cease their pursuant of the
matter before the Board.
Perry asserted that 1115 is still being investigated by the
FBI, although later evidence showed that it had concluded its
investigation without finding any basis to pursue a violation
of Federal criminal law, that tapes exist of Jarema’s meetings
with 1115 officials, including one involving 1115 Counsel
Richard Greenspan and that they had been supplied to Re-
gion 29. That claim was later denied by counsel for General
Counsel.
Perry finally claimed that 1115 has followed up what they
said they were going to do; unless he sells the organization
for cash they will continue to go ahead in trying to ‘‘de-
stroy’’ all District 6 bargaining units, whenever they can get
hold of them, and Cedar Grove is one of them. This broad
claim of a conspiracy to replace District 6 as exclusive rep-
resentative of the unit employees of Cedar Grove, among
other nursing homes, motivated solely by retaliation because
District 6 refused to agree to the ‘‘sale’’ of its bargaining
units and contracts, constitutes the linchpin of District 6’s
claim that 1115-New Jersey should be denied the benefits of
a certified representative of the Cedar Grove employees. It
seeks to overcome the absence of any direct evidence of such
a motive and enterprise arising from Perry’s own testimony,
and ignores the Board processing of the underlying represen-
tation proceeding without incident or basis for its reversal on
review, which resulted in a vote of 61 to 0 in favor of 1115-
646 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 A different local than the labor organization, 1115, which Perry
asserts engaged in the alleged unlawful attempt to ‘‘buy’’ District 6.
5 In a footnote, the Board noted it had been administratively ad-
vised that the General Counsel had denied District 6’s claim of bias
on the part of Region 29 and that the FBI had concluded its inves-
tigation and plans to take no action. These were among the grounds
asserted by District 6 for the relief it sought.
New Jersey4 succeeding District 6 as exclusive bargaining
agent.
During Perry’s cross-examination by 1115-New Jersey
counsel, he asserted that he was told by an FBI supervising
agent not to discuss the case or disclose any information in-
volving its ongoing investigation of 1115. He received this
advise prior to or at the time of the representation pro-
ceeding. As a consequence, District 6, although an intervenor
in that proceeding, refrained from raising this issue there.
Subsequently Perry declared that District 6 received permis-
sion from the FBI to disclose 1115’s alleged unlawful con-
duct shortly after it filed the charges against 1115 and was
advised to serve copies on all the parties.
The charge in Case 29–CB–7618 was filed on May 3,
1990, at a time when contrary to Perry, the representation
proceeding was still pending, after the Board’s Decision and
Direction of Election of April 5, 1990, but before the Re-
gional Director’s Second Direction of Election on November
1, 1990. Thus, District 6, as Intervenor in that proceeding,
had ample opportunity to raise the issue of 1115’s alleged
disqualifying misconduct in the representation proceeding by
way of a motion to reopen hearing or similar petition, even
if it felt duty bound to honor the FBI’s request to refrain
from making these matters public prior to the date of its
charge. Yet, as Perry testified on cross-examination, even
after he was given permission by the FBI to give limited tes-
timony about 1115’s alleged conduct, sometime in 1990, nei-
ther he nor any other representative of District 6 ever pro-
vided the information in its possession to the Regional Direc-
tor for Region 22 in connection with the Cedar Grove rep-
resentation proceeding. Furthermore, by virtue of its receipt
of a copy of this charge, it having been named as one of nine
employers whose employees were adversely affected by
1115’s misconduct in separate representation proceedings, in-
cluding Case 22–RC–10234, Cedar Grove was then in pos-
session of the alleged facts which it now seeks to assert as
an affirmative defense in this case, and like District 6, it took
no action to raise 1115’s alleged disqualifying conduct while
the underlying representation case was still pending.
The charge in Case 29–CB–7618 alleges a course of con-
duct commencing on or about November 19, 1989, by which
1115, in violation of Section 8(b)(1)(A), coerced, threatened,
or otherwise interfered with the Section 7 rights of employ-
ees of the nine named employers.
By a three-page letter dated April 30, 1991, Regional Di-
rector Alvin Blyer for Region 29 dismissed the charge, con-
cluding that because there was insufficient evidence of any
violation of the Act, further proceedings were not warranted
at this time.
In the dismissal letter, the substance of the charge was re-
cited as an alleged offer by 1115 to purchase from District
6 its collective-bargaining rights with respect to certain em-
ployees in the health care field. As part of 1115’s conduct,
if District 6 declined the offer to ‘‘sell,’’ 1115 indicated its
intent to secure such rights by organizing shops represented
by District 6 and it had already done so. 1115 was also al-
leged to have accepted employer assistance in this conduct,
through the participation of a management attorney in the ne-
gotiations between the two unions.
In analyzing the evidence submitted, Director Blyer noted
that it was not clearly established that any monetary offer
made by 1115 was personal to any district official but could
be equally interpreted as an offer to recompense District 6
for the financial loss of abandoning its bargaining rights. As
to the alleged unlawful ‘‘transferral’’ of bargaining rights,
there was no evidence that 1115 had an intent other than to
organize those shops on District 6’s renunciation of its bar-
gaining rights. In filing petitions in such shops, there was in-
sufficient evidence to show that 1115 had any intent other
than to represent the employees for whom they might obtain
bargaining rights.
Director Blyer went on to note that Section 8(b)(1)(A), un-
like Section 8(a)(1) and (2) does not refer to ‘‘interference’’
with Section 7 rights and requires a showing of actual re-
straint or coercion of employee rights, not met by 1115’s un-
successful attempt in persuading District 6 to abandon its
representation rights. Neither did the management attorney’s
participation in the discussions amount to unlawful accept-
ance of employer assistance since it was unclear that he
acted as agent of any employer, he did not participate after
the initial meetings, and, in any event, there is no legal au-
thority for holding a Union in violation of Section 8(b)(1)(A)
for ‘‘accepting’’ assistance which did not result in its rec-
ognition.
District 6’s appeal of the dismissal was denied in a letter
dated July 10, 1991, from the General Counsel’s Office of
Appeals. In the letter Mary M. Shanklen, director of the Of-
fice of Appeals, noted first that the conduct in the instant
case could not by itself be found to constitute unlawful re-
straint or coercion of employees within the meaning of Sec-
tion 8(b)(1)(A). Interestingly, Shanklin goes on, ‘‘Nor was it
converted into an unfair labor practice by Local 1115’s
threats of physical harm to Mr. Jarema which have been al-
leged as violative of the Act in a Complaint in Case No. 29–
CB–7911.’’ It is apparent that District 6 brought the matters
alleged in the consolidated CB case to the attention of Gen-
eral Counsel on its appeal to strengthen its CA case by at-
tempting to show a related course of conduct which resulted
in physical threats, an argument very much like that which
Cedar Grove and District 6 are attempting to make here, al-
though both are seeking a different remedy, 1115’s disquali-
fication from serving as certified representative rather than li-
ability for the commission of unfair labor practices.
While its charge in Case 29–CB–7618 was pending, on
October 5, 1990, in a ruling, the Board’s Associate Executive
Secretary, by direction of the Board, denied District 6’s mo-
tion to hold in abeyance all representation petitions filed by
1115 seeking to represent employees currently represented by
District 6. More recently, on November 16, 1992, the
Board’s Associate Executive Secretary, by direction of the
Board, denied as lacking in merit another motion filed by
District 6 seeking to stay all Region 4, 22, and 29 pro-
ceedings affecting District 6 pending completion of current
NLRB and FBI investigations.5
647CEDAR GROVE MANOR CONVALESCENT CENTER
Earlier, shortly before dismissal of its charge in Case 29–
CB–7618 by letter dated March 28, 1991, District 6 had sub-
mitted a supplemental position statement to the Division of
Advice of the Office of General Counsel in which it had
sought, inter alia, similar relief from General Counsel, alleg-
ing that 1115 should not be certified in any of the District
6 shops in which it campaigned for election, after the buyout
attempt failed, and should have its certification revoked
where already obtained. District 6 argued, as it does here,
that 1115’s organizational campaigns were tainted by its
prior unlawful attempt to buy out District 6, and that 1115
does not have the single-minded purpose of protecting and
advancing the interests of the employees in those shops, but
has as its primary purpose the destruction of District 6.
In an advice memo dated April 22, 1991, from Robert E.
Allen, Associate General Counsel, Division of Advice to Re-
gional Director Blyer, Region 29, in which the Region was
advised to dismiss the charge, absent withdrawal, the relief
was rejected in footnote 6. The memorandum noted that even
if the buyout attempt was unlawful under criminal statutes,
such conduct by officers of a labor organization is not cog-
nizable under the Act and does not ipso facto make the
Union’s organizing efforts unlawful or preclude its certifi-
cation, citing Alto Plastics Mfg. Corp., 136 NLRB 850, 853–
854 (1962). The memorandum further noted that so long as
a union exists at least in part for the purpose of dealing with
employers concerning terms and conditions of employment,
it is a Section 2(5) labor organization which can be certified
if duly elected by the employees, citing Harrah’s Marina
Hotel & Casino, 267 NLRB 1007 fn. 2 (1983). Finally, the
advise memo referred to the absence of evidence that 1115—
a bonafide labor organization that has represented employees
in many units—has undertaken to organize District 6’s shops
wholly for the purpose of destroying District 6. The dis-
missal of the charge followed on April 30, 1991.
On the adjourned date for resumption of the now consoli-
dated CA-CB proceeding, Jarema testified as a witness called
by Intervenor District 6. He recalled being asked in 1985 or
1986 to accompany Perry to a meeting held at Morris
Tuchman’s office, which Alex De Laurentis also attended.
During the course of the meeting De Laurentis stated he was
willing to buy District 6 for $1.5 million. Perry became upset
and responded that this Union is not for sale, let’s get out
of here. De Laurentis then said it could be done one way or
the other. We can raid you all over the place, use the Board,
etc. or you can take the price. During this exchange
Tuchman tried to act as a mediator. De Laurentis did not ex-
plain how he arrived at the figure, but said that the money
would be paid to Perry.
Several weeks later, at the suggestion or urging of Perry,
Jarema met with several agents from the U.S. Department of
Labor who asked him to set up a meeting with De Laurentis
to test the validity of the earlier offer and to record the meet-
ing by wearing a wire. Jarema agreed. He telephoned De
Laurentis, told him he thought he could deliver, and asked
for a meeting. Further phone calls were held, all of which
were recorded.
A meeting was finally held with De Laurentis at a diner
on Route 35 in Red Bank, New Jersey. Prior to the meeting
the government agents placed a recording device on Jarema’s
body. At the meeting, De Laurentis expressed concern about
Perry’s approval of any deal in light of his earlier strongly
voiced opposition and raised a question about Jarema’s abil-
ity to deliver on any understanding. De Laurentis wanted
District 6 to deliver both members and employers. Payment
would be at a rate of $10 per member per month for a year.
On the basis of a District 6 membership of 8000, suggested
by Jarema, the payment would total $800,000. De Laurentis
offered Jarema a position with 1115 if he could bring both
the members and employers into 1115’s facility. How this
was to be accomplished was not explained. As to the method
of payment, payment would be by check as the members and
employers were brought in. Jarema first had noted that De
Laurentis had described how ‘‘we’’ would be paid and then
defined the ‘‘we’’ as being William Perry, without first spe-
cifically attributing the payee as being Perry in his individual
capacity.
At the conclusion of the meeting, the Department of Labor
agents retrieved the recorded tape a short distance from the
diner. Shortly afterward De Laurentis passed away and Dis-
trict 6’s pursuit of the matter or any governmental interest
was dropped.
According to Jarema, following a period during which
1115 raided District 6 by filing representation petitions and
seeking to oust District 6 from a number of nursing homes
in New Jersey, Perry asked if he would talk with an FBI
agent to try and reevaluate 1115’s offer.
As a result of Jarema’s meeting with an FBI agent, he
agreed to approach Morris Tuchman to see if there was any
current interest in the buyout of District 6 and at what price.
On the occasion of a Board proceeding in Region 22, in
Newark, New Jersey, in November 1989, in which both Dis-
trict 6 and an employer represented by Morris Tuchman were
involved, Jarema, who had a listening device in his attache
case, placed there by the FBI, asked Tuchman if he recalled
the meeting in his office attended by De Laurentis, Perry,
and himself where Alex offered to buy the Union for $1.5
million. Tuchman told him his numbers were off. Your num-
bers are only about 8000 and the figure is closer to
$800,000. Tuchman used a calculator, to compute the amount
on the basis of the $10-per-member ratio. Jarema asked if he
thought the offer still stands. Tuchman said he would find
out.
Some days later, Tuchman informed Jarema in a recorded
telephone call that 1115 was interested, and he should con-
tact Raoul Aldrich, De Laurentis’ successor as director of or-
ganization. Jarema telephoned Aldrich from his taped phone
and said I assume you know why I’m calling, Morris
Tuchman must have spoken to you. Aldrich said he knew but
wanted to discuss the matter further in person. The following
week a meeting was arranged at 1115 headquarters in
Westbury, Long Island. Jarema wore a recording device
planted by an FBI agent. In Aldrich’s office, Jarema said he
had a meeting with your predecessor De Laurentis a couple
of years ago covering his desire to purchase Local 6. Aldrich
replied that he thought Alex left some notes along those
lines. Jarema said, ‘‘I know you people are raiding the hell
out of us right now.’’ Aldrich replied that’s part of the over-
all thing. During cross-examination, Jarema added that Al-
drich said it would be cheaper buying the Union as opposed
to continuing raiding situation which cost him a lot of money
in attorney fees. The talk then turned to specifics. Aldrich
asked for the number of District 6 nursing homes under con-
tract unencumbered by 1115’s efforts. Jarema told him there
648 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
were approximately 23. Aldrich next sought a breakdown of
the nursing home personnel into nonmedical and medical.
Aldrich expressed interest only in the medical personnel
which totalled approximately 4000 members. Aldrich offered
to pay $10 per member per month for a year, totalling
$400,000. Aldrich also expressed interest in the home attend-
ant employees District 6 represented in bargaining relation-
ship with an employer, Human Development Association, in
a growing area of the medical field. Aldrich suggested put-
ting together a package including the nonmedical people, but
said he’d have to talk first to Mickey Sackman, 1115 presi-
dent.
On a later taped return call to Aldrich, a meeting was set
up with Sackman for sometime in January 1990. Again,
Jarema was wired by the FBI before the meeting. On his ar-
rival at 1115’s offices, Aldrich introduced Jarema to
Sackman in his own office, and then left.
For the first 20 minutes they engaged in small talk. Then
they discussed the purchase. Sackman said Raoul left some
numbers here, however, they are completely out of the ball-
park. We do not pay 1 year, we will pay a maximum of 6
months. He then said let me call my attorney. Sackman con-
firmed it was Richard Greenspan, 1115 and 1115-New Jersey
counsel, in the instant proceeding. As Sackman made the
call, Jarema said, ask him whether we have to get cards.
Sackman spoke to the party on the line by saying Richard,
didn’t we do something recently in purchasing a union. Tell
me if my numbers are correct. We don’t pay a year on the
dues factor, we only pay six months, am I correct? Sackman
listened and then responded yes, yes, right. That’s what I’m
telling this man. How about cards? Sackman listened, then
said No, there is no need for cards, right. What else do we
need from him?
Sackman hung up and told Jarema they would need an-
other meeting to which he should bring current copies of all
his contracts. Jarema responded, you know that the numbers
have changed dramatically. I have another party I have got
to talk to here and I’ll be back to you. A tentative meeting
was scheduled for the following week, at which 1115’s law-
yer and accountant would be present and would explain the
necessary arrangements. Sackman explained that a separate
office would be set up within 1115 to be manned by a Dis-
trict 6 representative ‘‘and as the members and the employers
were brought in District 6 or Local 6 would get paid by the
amount of people they brought into this special set up.’’ (Tr.
207.) After Jarema repeated that ‘‘we would get paid,’’ he
now responded to a leading question of his own counsel that
the money would go to Bill Perry, personally. In his unvar-
nished uninterrupted initial narrative as noted, the payments
were to be made to District 6. Jarema at no time attributed
any statements to De Laurentis, Aldrich, or Sackman prom-
ising personal payments to Perry and District 6 counsel never
asked Jarema whether the 1115 representatives with whom
he met had said it. I find that no private moneys were prom-
ised to Perry in the course of the meetings Jarema attended.
None of the alleged tapes made of his various interchanges
were produced to corroborate or clarify 1115’s position on
this matter. Jarema did repeat that each of the three 1115
representatives with whom he met insisted on District 6 de-
livering both its members and the employers, or there was
no deal.
After the meeting the FBI returned their listening device.
Thereafter, Jarema received 10 to 15 telephone calls from
Sackman which he did not return at the instructions of the
FBI. Some 8 months later, Jarema received the telephone
calls which are on the subject of the CB complaint.
Early in his cross-examination by counsel for General
Counsel, Jarema acknowledged that, contrary to his testi-
mony attributing to De Laurentis a response to Perry’s rejec-
tion of his offer to buy District 6 members and shops to the
effect he would take whatever measures were necessary to
accomplish that result, by raiding for example, in an affidavit
given to Region 29 on May 29, 1990, he didn’t think De
Laurentis said what would happen if Perry refused the offer.
In a separate written response to a question posed by District
6 counsel on March 5, 1990, Jarema described De Laurentis’
reaction to Perry’s refusal to entertain a buyout of District
6 as ‘‘He sort of backed off and that was the end of the
meeting.’’ I am not convinced that Jarema’s recollection was
better 2 years later when in early March 1992, he attributed
the calculated response to De Laurentis that he would
achieve his objective one way or another, including through
raiding. Significantly, Perry did not testify to any De
Laurentis’ response before both he and Jarema left the meet-
ing. Jarema’s credibility thus has been seriously com-
promised.
It is also noteworthy that in a number of important re-
spects Jarema’s recital differs from Perry’s. In Perry’s
version, Jarema informed him 1-1/2 years later that he had
been approached by 1115 to consummate the buyout, while
Jarema, who was not present for Perry’s testimony, testified
it was Perry who later approached him to meet FBI agents
to seek to resurrect the deal without any intervening ap-
proach by 1115. As Jarema testified, ‘‘I was never ap-
proached by 1115, me, individually.’’ (Tr. 316.) This dif-
ference is significant, because if Jarema is to be credited on
this point, nothing had happened between 1985 or 1986 and
1989, to indicate that 1115 was actively pursuing its original
buyout proposal, and only District 6’s own activity in feign-
ing renewed interest, led to the meetings Jarema held with
Aldrich and then Sackman. District 6’s contention that
1115’s raiding activity among District 6 shops show that
1115 carried out its threat to punish its rejection of the
buyout plan is not established by the facts. The series of a
dozen representation proceedings in which 1115 or 1115-
New Jersey filed petitions to become bargaining representa-
tive in place of District 6, offered in evidence by 1115-New
Jersey, shows that one petition had been filed as early as
1982, years before 1115 made its offer, four others had been
filed during 1990, after Jarema sought to arrange a meeting
with 1115 commencing in November 1989, and only two
were filed in the period 1987 and 1988. Furthermore, the re-
sults of the elections held in these proceedings, show over-
whelming support for 1115 among the employees who par-
ticipated as against very meager support for District 6, lead-
ing invariably to 1115’s certification as exclusive bargaining
representative, from which one may reasonably conclude that
legitimate employee support existed for 1115 to seek to sup-
plant District 6 as representative and that 1115 was moti-
vated, at least in part, by the perceived needs and/or desires
of these employees in processing and participating in these
proceedings.
649CEDAR GROVE MANOR CONVALESCENT CENTER
Another significant difference between the two involved
the source of any charges of criminal wrongdoing which in-
stigated the FBI investigation. Perry testified clearly that it
was Jarema who had made the charges to the FBI (Tr. 91–
92). Yet, when confronted with this testimony Jarema re-
peated that he never contacted the FBI, that they contacted
him, and that he never made any charges to them. (Tr. 326.)
Such a conflict serves to undermine Perry’s credibility.
Another difference between Perry and Jarema had to do
with the length of the initial meeting at Tuchman’s office,
with De Laurentis, Jarema claimed it was 40 minutes long
while Perry said it lasted only 10 to 15 minutes. Jarema also
for the first time on cross-examination by 1115-New Jersey
counsel acknowledged that Perry had stated at this meeting
that District 6 had 15,000 members, a statement which led
De Laurentis to indicate that on the basis of $10 per member
per month, he was willing to offer $1.5 million for District
6 members and shops. Perry himself did not testify that any
money offer was made by De Laurentis. In fact, District 6
had apparently listed only 3500 members on a Labor Organi-
zation Annual Report (LM-2) for 1986–1987 it had filed with
the U.S. Department of Labor. Thus, the suggestion attrib-
uted to Perry of a membership roll four times its actual size
is an example of a misleading misstatement which itself may
have contributed to 1115’s further pursuit of a proposal
which it might otherwise have ceased to pursue.
Jarema himself agreed on cross-examination that he had
given information to Aldrich about the size of the District 6
membership which was false, apparently double the members
listed on the 1986–1987 LM-2. In doing so, he had not fol-
lowed FBI advice but had lied on his own. When pressed
about this Jarema stated he was prepared to lie when his
livelihood was at stake but it wasn’t at stake during his testi-
mony. Jarema did not testify that his lying to Aldrich was
justified by concern about his job.
Jarema also on cross-examination did not recall De
Laurentis offering to pay money under the table.
Jarema also repeated that De Laurentis did not explain
how the transfer of members and employers would be ac-
complished. When he was then asked if he was familiar with
union merger or affiliation procedures and whether they
could be accomplished without membership referendum,
Jarema expressed ignorance. However, when Jarema was
later asked whether it wasn’t true that when Aldrich was
using the word purchase, he didn’t know whether Aldrich
was talking about a merger, an affiliation or a purchase, he
replied that there was no doubt in his mind that Aldrich was
talking about an outright purchase. Yet Jarema did not at-
tribute such unambiguous language or intention to Aldrich.
It is also apparent from Sackman’s intention to have both his
attorney and accountant attend a further meeting when the ar-
rangement would be formalized, at which District 6 was also
to produce LM-2s, contracts, and its constitution, that 1115
had something else in mind, which would seek to conform
to legal standards, yet provide Distict 6 with compensation
for relinquishing its status as exclusive representative at the
nursing homes to be involved in the transaction.
Jarema also now added that in his discussion with
Sackman, it was proposed that a District 6 representative be
assigned to the office to be set up within the 1115 facility
to administer the turnover of members and collective-bar-
gaining agreements and to receive the installment payments.
That office also may have been designated as a separate local
and Jarema had used those words previously to describe it.
The question of who at 1115, whether the District 6 agent,
or another would continue to service the District 6 shops
brought in, was not discussed. Further, Jarema now added
that Sackman rejected a demand he made that District 6 be
paid money up front after consulting his attorney by tele-
phone. It is possible that Sackman also promised Jarema a
job at 1115 anytime he wanted.
B. Case 29–CB–7911
The Presentation of the General Counsel’s
Case-in-Chief
Jarema was the chief witness for General Counsel. He tes-
tified that on or about October 2 or 3, 1990, he received a
telephone call from a man who said, ‘‘Jarema, I thought you
had a deal with the guy in Florida. Why don’t you cut the
nonsense and sit down and try to work this thing out.’’
Jarema asked who is this and what is this about. The caller
responded, ‘‘it is about the 1115 matter.’’ The conversation
ended at that point. Jarema testified that he recognized the
voice as belonging to 1115 Secretary-Treasurer Raoul Al-
drich, based on approximately 10 telephone calls he had with
Aldrich prior to this date.
Jarema continued, that on October 11 or 12, 1990, he re-
ceived another telephone call from a caller he suspected to
be Aldrich from his voice. The caller said, ‘‘why don’t you
stop this nonsense with the Labor Board or else.’’ Jarema
asked, ‘‘or else what?’’ The caller responded, ‘‘you will get
your legs broken.’’ This exchange ended the call. Subse-
quently, on October 24 or 25, 1990, Jarema received a tele-
phone call from a male caller whose voice he could not place
and which was muffled. There was also no discernable ac-
cent to the voice. The caller said, ‘‘you better develop amne-
sia with your testimony appearing before the Labor Board.’’
Jarema asked, ‘‘who is this? What is this all about?’’ The
caller then said, ‘‘Listen, people like you wind up in wooden
boxes.’’
The General Counsel offered the testimony relating to this
last telephone conversation in support of the complaint alle-
gation relating to the earlier one, since it involved the same
subject matter, and seeks an inference to be drawn that it
was the same caller who Jarema had identified as being Al-
drich. I received the testimony at the time over objection
grounded on the failure of the witness to identify the caller
or show his relationship to the Respondent 1115, leaving
open the possibility that in the absence of proof linking this
caller to the one who made the call on October 11 or 12,
I would not rely on it in evaluating whether General Counsel
had established the identity of the earlier caller.
Jarema reported to Perry, in the presence of two other
business agents, that he had received three threatening phone
calls. Two he believed were made by Raoul Aldrich. The
third caller he didn’t know, but they unnerved him. They
were made concerning his testimony before the Labor Board
on the 1115 situation.
In December 1990, Jarema visited Oceanside Convales-
cence and Rehabilitation Center in Atlantic City, a shop
under contract with District 6 and still under its jurisdiction
at the time of his testimony on March 5, 1992. By November
1990 Jarema had ceased servicing employees in New Jersey
650 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
facilities represented by District 6. But he was also treasurer
of the District 6 Credit Union, and in that capacity he was
responding to an earlier request from Oceanside employees
to visit the facility to explain the benefits of membership, the
procedure of becoming a member and to assist them in com-
pleting loan applications. In responding to these employees
and in communicating with other shops, Jarema had in-
formed them he would not provide them with specific arrival
dates and times because he had been threatened because of
his testimony at the Board. In meeting with a few employees
when he arrived at Oceanside, Jarema explained that he had
received threatening phone calls from 1115, he believed it to
be, due to his testimony at the Labor Board and that was
why he had been unwilling to set up a specific date and time
of his arrival so a membership meeting could be arranged.
He was afraid that if he scheduled a specific appointment,
the person who threatened him would find out and, in effect,
follow through on it. Jarema explained this to employees
gathered in the Oceanside cafeteria. He identified Brenda
Beverly, Carmela Love, and a third female employee named
Jones.
During his cross-examination by 1115 counsel, Jarema ex-
plained that his prior phone conversation with Aldrich had
taken place starting in November 1989 on the occasion of his
contacts to arrange an initial meeting and then later when he
sought to make arrangements with Aldrich to set up the Jan-
uary 1990 meeting with Sackman. Between January and Oc-
tober 1990 he had no contact with Aldrich.
Jarema had received the October 2 or 3 call at his home
in New Jersey. He could not recall if he had provided Al-
drich with his home telephone number but it was listed in
the directory.
When asked to agree that Aldrich is a Spanish-speaking
individual who speaks English with an accent, Jarema would
not, describing the voice as distinctive, but not containing a
spanish accent unlike the District 6 Hispanic members who
did speak with an Hispanic accent. In Jarema’s view, the
voice he described had an ‘‘east sidish’’ character, but he
was hard pressed to define that phrase. When asked if Al-
drich used slang, or curse words, Jarema said he did not to
his knowledge. The voice on the first two calls he received
in October was the same. Jarema later noted that he was 99
percent certain it was Aldrich and he would be able to recog-
nize Aldrich’s voice if he heard it now. The voice on the
third call was entirely different and was muffled. On none
of the calls had Jarema identified himself.
Although he believed, especially after the third call, that
he had received a serious threat to himself personally, Jarema
did not report the matter to the local police because he be-
lieved the caller, who was on the line for only a minute or
so each time, could not be traced. It was Perry who sug-
gested he go to the Labor Board and file a charge. Jarema
understood that such a charge would be helpful to District
6’s position in several pending cases.
The initial charge which Jarema signed and filed on behalf
of District 6 alleging the threat to his person as violative of
Section 8(b)(1)(A) was filed on October 26, 1990, in Case
29–CB–7791. That charge was dismissed by Regional Direc-
tor Blyer because of insufficient evidence of violation by let-
ter to District 6 dated December 21, 1990. It appears that
prior to dismissal District 6 had not produced corroboration
from employees that Jarema had told them about the nature
and source of the threats to his person. Upon the filing of
new charges, in Case 29–CB–7911, on February 21, 1991,
and after employees provided the Region with corroboration
of Jarema’s narrative that he advised them of the threat,
complaint issued on June 17, 1991.
Two employees testified in support of the complaint. Bren-
da Beverly was a certified nursing assistant (CNA) employed
at the Oceanside facility in Atlantic City, New Jersey. She
was a member and chief shop steward of District 6 at that
facility. In the period November to December 1990, Steve
Jarema met with Beverly and other employees in the em-
ployees’ dining room. Besides Beverly, present were
Carmela Love, Yvonne Jones, and Brendis Breems. Jarema
told then he was in the area and decided to stop in. Pre-
viously Beverly had asked Jarema by phone to stop by to
speak to employees about the credit union. Jarema added at
the time that he hadn’t been in the area or hadn’t returned
Beverly’s calls because he had been threatened by another
union, 1115. Beverly asked him what happened, but Jarema
didn’t go into detail, he didn’t say anything else about the
threat.
Later in the day Beverly asked Carmela Love if she heard
about Steve Jarema being threatened. Although present on
Jarema’s visit, Beverly wasn’t sure if she had heard her re-
marks. Love said she had not.
At the general membership meeting of Oceanside employ-
ees held at the facility on December 1990, Beverly, with
Love present, heard District 6 Agents Francis Wynn and
Essie Moore mention that Steve Jarema had been threatened
by another union, 1115, because he had gone to the National
Labor Relations Board.
Carmela Love testified she was employed as a CNA by
Oceanside at its Atlantic City facility. She was a member
and assistant shop steward of District 6 for 3 to 4 years. At
the meeting with Jarema in the employees’ lunchroom in No-
vember and December 1990, they discussed the credit union
and the possibility of organizing in the area, among other
things. When he he was asked about what was happening
with him in New York, he said he had been threatened by
Local 1115. Later in the day, Love discussed the threat with
Beverly, but could not recall the details of the conversation.
In December 1990, she and Beverly met with Business
Agents Wynn and Moore on the occasion of their visit to the
facility to conduct a general union meeting. The stewards
met the agents separately to discuss grievances and employee
problems. At the time, the agents told them that Steve
Jarema had been threatened by Local 1115 because he gave
testimony at the Labor Board.
Aldrich was called to testify by 1115 in its defense. He
described the relations and differences between the two Re-
spondent Unions in these consolidated cases. He was sec-
retary-treasurer of both 1115 and 1115 New Jersey. Jay
Sackman, Mickey Sackman’s son, is president of 1115 New
Jersey. Alex De Laurentis’ widow, Maggie De Laurentis, is
president of 1115. Mickey Sackman, as noted earlier, is gen-
eral president of the District Council 1115, the Union’s inter-
mediate body, with which 1115 and 1115-New Jersey, and
four other local unions are affiliated as its divisions. Besides
Aldrich, another common officer of 1115 and 1115 New Jer-
sey is Dennis Romano, who is vice president of 1115-New
Jersey and recording secretary of 1115.
651CEDAR GROVE MANOR CONVALESCENT CENTER
1115 and 1115-New Jersey each have different geographic
jurisdictions, 1115 operating in the New York City area and
1115-New Jersey covering northern New Jersey. They each
have separate collective-bargaining agreements and relation-
ships with employers in the nursing home industry.
Aldrich testified that he was born in Cuba, graduated from
high school there, and left for the United States at age 17.
Both he and his wife, who is from Costa Rica, are Spanish-
speaking, fluent in Spanish, and they speak Spanish at home.
Later testimony revealed that Aldrich had received an under-
graduate degree in political science from the State University
of New York (SUNY) and had taken special training in
union negotiations and leadership at Cornell University. As
I heard Aldrich’s voice, it appeared that he spoke with preci-
sion, in a cultivated manner, with very little traces of a Span-
ish or Hispanic accent.
While 1115 counsel drew from Aldrich that he never lived
in in New York City or its lower East Side, but had lived
on Long Island for the past 34 or 35 years, it appears that
what Jarema may have been referring to when he described
the voice he heard, as ‘‘east sidish,’’ was that the speaker
spoke in a refined manner. However, the fine traces of a
spanish accent were present as I heard Aldrich testify, and
Jarema had denied the voice he heard had any spanish into-
nation or inflection at all.
Aldrich admitted he knew Jarema, having met him twice,
and that he spoke with Jarema no more than three times by
telephone. The first time he placed a call to his office in late
1989 and left a message. Jarema called him back within that
week, and during a conversation which lasted no more than
3 or 4 minutes they had set up a meeting. After the meeting,
he spoke by phone with Jarema again to firm up a meeting
with Sackman.
Aldrich denied knowing where Jarema lives and he never
received Jarema’s house address or telephone number from
him. He denied ever calling Jarema at his home. Because of
the sequestration order, Aldrich was not present during the
earlier proceedings.
Aldrich denied making any of the remarks attributed to
him by Jarema during the October 2 or 3 and October 11
or 12, 1990 telephone conversations. In fact, he never spoke
with Jarema again, after introducing him to Sackman on the
occasion of Jarema’s visit to the 1115 headquarters in early
1990. He also denied calling Jarema on October 24 or 25
when Jarema claimed he received a third telephone call from
a caller with a muffled voice.
On cross-examination, Aldrich acknowledged meeting with
Jarema once toward the end of 1989 and speaking with him
then for 15 or 20 minutes. At that time Jarema was looking
for the possibility of having District 6 affiliate with 1115 and
he, Aldrich, had offered Jarema a job.
During his direct examination, in denying making the
threatening remarks attributed to him during the October 11
or 12 conversation, Aldrich sought to show he never spoke
with Jarema on that date by making the point that he did not
even make small talk with him, never mind threatening him,
not even to say hi, how are you doing? How’s the weather
down where you are? When pressed about what he meant by
the phrase, ‘‘down where you are’’ Aldrich at first was eva-
sive and then denied any implication as to location arising
from this testimony. The phrase was meant to show his lack
of interest in even small talk with Jarema. The record shows,
however, that Jarema resides in Piscataway, New Jersey, and
Aldrich resides on Long Island. Aldrich also did not recall
whether in the second conversation he called from his office
in Westbury or on his car telephone.
Aldrich also admitted having seen and having become
aware of the charge District 6 made against 1115 in Case
29–CB–7618 on May 3, 1990. He also was aware of the alle-
gation that 1115 was making an offer to purchase District 6
and to undermine the rights of employees and employers. He
provided the Regional Office with a statement relating to the
conversation he had held with Jarema in his office in re-
sponse to the charge. He denied that 1115 had engaged in
any unlawful conduct to intimidate or coerce employees.
Aldrich at first testified that he first became aware that
Jarema had been wired by Federal authorities for his meet-
ings with himself and Sackman a few days or a week before
his testimony, but then testified he had learned that District
6 had gone to the FBI when District 6 first distributed a leaf-
let claiming that 1115 was being investigated by the FBI
about 3 or 4 weeks before his testimony.
Aldrich also acknowledged that Mickey Sackman, the gen-
eral president of District Counsel 1115, resides in Florida, al-
though he often spent time at the Westbury office of the Dis-
trict Council.
When Aldrich learned of the claims Jarema and District 6
were making, by way of the unfair labor practice charge and
leaflet about 1115’s fraudulent conduct toward District 6 and
employees, he felt indignation and anger. He believed that
District 6 was reacting to 1115’s success in the representa-
tion elections in units in which District 6 had been the in-
cumbent, in some of which it received no votes at all.
Upon my review of the dramatically opposed accounts of
Jarema and Aldrich as to their telephone conversations,
Jarema alleging threatening remarks and Aldrich denying
having made the telephone calls at all, I find Jarema’s ac-
count to be more credible.
While Jarema exaggerated the number of times they had
spoken by telephone prior to early October 1990, I find that
his account of the calls he received in October and his identi-
fication of the caller are believable. Jarema’s identification of
Aldrich as his caller is a sufficient voice identification as re-
quired under the Federal Rules of Evidence. (See
Fed.R.Evid. Sec. 901(b)(5).) At the time, District 6, Jarema
in particular, had abruptly discontinued their discussions with
1115 about the buy out money months ago. Since that time,
by the spring or summer of 1990, Aldrich had learned of
District 6 and Jarema’s allegations of unlawful conduct by
1115 through his own and Sackman’s actions in seeking to
make a cash, under-the-table purchase of District 6 members
and shops in violation of the Act. While Aldrich may not
have been aware by October of District’s complaint to the
FBI and taping of its encounters with 1115, he was certainly
alerted by then through District 6’s charge to a fraudulent in-
ducement of 1115 to make offers to purchase District 6
shops. It was fraudulent because District 6 never intended to
fulfill its end of a bargain but rather was seeking to entrap
1115. On the record Aldrich expressed his resentment and
anger at District 6’s role in the affair, during which it was
represented by Jarema in all its aspects. The ULP charge in
Case 29–CB–7618 was still pending by October 1990, and
was not dismissed until April 30, 1991. On October 5, 1990,
the Board denied District 6’s motion to hold in abeyance all
652 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
representation petitions filed by 1115 seeking to represent
employees currently represented by District 6. Richard
Greenspan, 1115’s attorney, received a copy of this ruling.
I may infer that Aldrich, as a high officer of 1115 was privy
to this ruling as well as District 6’s motion for this relief
which had been previously pending. Thus, Aldrich was not
only on notice of District 6’s charge against 1115, but also
the lengths to which it was seeking to go to defeat 1115’s
raiding activity against it. Clearly, Aldrich had motive to act.
In evading a direct answer about his use of the phrase
‘‘down where you are’’ in his testimony, I find Aldrich was
attempting to shield his knowledge of Jarema’s residence lo-
cation in New Jersey which came out accidentally in his use
of the phrase.
This is not the first time 1115 agents have engaged in
similar intimidating conduct toward employees. In Windsor
Castle Health Care Facilities, 310 NLRB 579 (1993), 1115
Representative Steve Maritas accompanied by unidentified
tall, husky men engaged in intimidating and physically
threatening conduct toward nursing home employees on nurs-
ing home premises during work hours in an unlawful attempt
to secure designation cards during an employer assisted orga-
nizing campaign. Id. at 590–591. That conduct took place
earlier in the same year, 1990, as the telephone calls alleged
in the instant case. See Teamsters Local 812 (Sound Distrib-
uting), 307 NLRB 1267 fn. 2 (1992).
I do not find Jarema’s failure to pick up Aldrich’s faint
Hispanic accent a fatal flaw in his identification as it was a
very minor aspect of Aldrich’s voice and Jarema’s con-
fidence in his ability to identify even a 1-1/2 years later the
distinctive voice he heard is persuasive. Since I find that all
three telephone calls were indeed made and received by
Jarema at his home, the substance of those calls are suffi-
cient in themselves to provide prima facie proof of the iden-
tity of the caller based on circumstantial evidence. Iron
Workers Local 433 (United Steel), 280 NLRB 1325, 1333
(1986), citing U.S. v. McMillan, 508 F.2d 101 (8th Cir.
1974), among other cases. Only Aldrich, aside from Mickey
Sackman, was privy to Jarema’s role in past contacts with
1115. The caller identified Jarema’s role in providing testi-
mony under the Act to the Labor Board, referred to the 1115
matter and a deal the caller thought Jarema had with the guy
in Florida, clearly Sackman. The substance of the calls thus
provides strong circumstantial evidence of the identity of the
caller as being Aldrich. Jarema’s voice identification based
on prior conversations with him by telephone and in person,
provides independent proof of identification. While Jarema’s
credibility is suspect on certain facets of his testimony relat-
ing to his in person conversations with De Laurentis, Aldrich
and Sackman, to which he testified in Case 22–CA–17729,
I am prepared to credit him here, that Aldrich made the
threatening remarks attributed to him. I further find that the
third call is sufficiently related to the first two, although
independent verification of identity cannot be made because
of a disguising of the voice, to warrant my finding that Al-
drich or another 1115 agent was continuing the intimidating
and threatening conduct toward Jarema. The call lends
weight and credibility to the evidence pointing toward Al-
drich as the threatening voice on the first two telephone con-
versations
Analysis and Conclusions
The complaint in Case 29–CB–7911
While having identified Aldrich as the individual who
made the two telephone calls in early October culminating in
the threat of physical harm to Jarema on the second call, the
issue remains to be resolved whether Jarema’s and other
business agents’ later disclosure of this threat to employees
is sufficient to conclude that 1115 had thereby restrained and
coerced employees in the exercise of rights guaranteed in
Section 7 of the Act in violation of Section 8(b)(1)(A) of the
Act.
It is a basic principle of the Act, that union threats to in-
flict bodily harm made to employees or to supervisors in the
presence of employees with the purpose of inducing support
of the union are violative of Section 8(b)(1)(A) of the Act.
See Nassau Insurance Co., 280 NLRB 878, 880 (1986). Fur-
thermore, as noted by the Board in Meat Packers Union
(Geo. Hormel & Co.), 287 NLRB 720, 721 at fn. 5 (1987),
‘‘It is well established Board law that conduct directed
against nonemployee third parties can violate Section
8(b)(1)(A) where such conduct, as here, became or was sure
to become known to employees and would reasonably tend
to restrain or coerce them in the exercise of Sec. 7 rights [ci-
tations omitted].’’
It was reasonable for Aldrich to have foreseen that his at-
tempt to intimidate Jarema and District 6 from continuing
their efforts to seek Board relief from 1115’s buyout offer,
including its removal from its status as bargaining agent in
shops where it supplanted District 6, would not result in Dis-
trict 6 abandoning its efforts and that employees with whom
Jarema had a continuing relationship, among others, and also
including fellow business agents, would learn of the threat.
Aldrich should have been aware from his past dealings with
Jarema that District 6 would seek the widest publicity of the
threat and attempt to capitalize on it by filing the instant
charge, for example, and using it to strengthen its and Cedar
Grove’s claim that 1115 had forfeited its rights to Board cer-
tification. See, e.g., Furniture Workers Local 140 (Brooklyn
Spring Corp.), 113 NLRB 815, 822 (1955).
Under the above-cited principles, contrary to 1115’s argu-
ment in its brief, there is no requirement that the employees
who learn of the threat have to have had some involvement
with 1115. It is sufficient, also contrary to 1115’s contention
at pages 24–25 of its brief, that Aldrich’s remarks would rea-
sonably tend to restrain or coerce employees in the exercise
of Section 7 rights. Meat Packers Union, supra. Under the
Board’s longstanding test, if the objectional conduct had the
natural and foreseeable effect of coercing employees in the
exercise of their rights, it violates Section 8(b)(1)(A). See,
e.g., G & H Towing Co., 168 NLRB 589, 589, 591 (1967).
Respondent 1115 confuses two different concepts in
misreading the General Counsel’s Advice Memorandum of
April 11, 1991, in Case 29–CB–7618, described earlier, as
requiring anything more than that the proscribed conduct rea-
sonably tend to restrain or coerce employees. The language
in footnote 4 of that memorandum was included only to
demonstrate that Section 8(b)(1)(A), unlike Section 8(a)(1),
has not been applied broadly or derivatively.
I conclude that the reasonable tendency of Jarema’s,
Wynn’s, and Moore’s disclosures to employees Brenda Bev-
erly and Carmela Love, among others, that Jarema had been
653CEDAR GROVE MANOR CONVALESCENT CENTER
threatened by Local 1115 because he went to the National
Labor Relations Board and gave testimony at the Labor
Board was to restrain and coerce those employees in the ex-
ercise of their Section 7 rights under the Act. These disclo-
sures tend to inhibit their utilization of the Board’s services
and their continued support of District 6, whether or not
1115 had any organizing campaign underway among them or
was seeking bargaining rights at the time from their em-
ployer.
The complaint in Cases 22–CA–17729 and
22–CA–17749
The first issue to be dealt with is whether Cedar Grove
and District 6 are precluded from raising their affirmative de-
fense to the complaint seeking a bargaining order based on
1115-New Jersey’s certification because they could have
raised the same matter in the underlying representation pro-
ceeding. I have previously demonstrated that by virtue of
District 6’s charge in Case 29–CB–7618 filed on May 3,
1990, on notice to Cedar Grove, both Cedar Grove and Dis-
trict 6 had ample opportunity to litigate their defense at a
time when the underlying representation proceeding was
pending before the Region following the Board’s April 5,
1990 Decision on Review and Order modifying the Regional
Director’s unit determination and months before the Regional
Director issued a Second Direction of Election on November
1, 1990. That neither of them chose to do so does not privi-
lege them to raise the matter for the first time in the unfair
labor practice proceeding seeking to confirm the results of
the lengthy representation proceeding. Indeed, District 6, by
its pressing of the argument that 1115’s allegedly improper
conduct in offering to buy District 6 warrants a revocation
1115’s certifications at all shops named in the 29–CB–7618
charge, as early as June 11, 1990, in a letter to Regional Di-
rector Blyer, proves that District 6 was prepared to timely
litigate the defense. It simply chose not to do so in the very
representation case—Cedar Grove—pending at the time.
While the record does not show Cedar Grove or other em-
ployers having received this or or later correspondence be-
tween District 6 counsel and the Region, Cedar Grove has
not denied its receipt of the charge in which District 6 first
presented its theory of defense, timely to have pressed new
objections to 1115’s certification well before the representa-
tion proceeding concluded. It is noteworthy that Cedar Grove
counsel chose not to attend the adjourned proceeding in
March 1992, at which this issue was argued on the record
and the exhibits upon which I rely for its actual notice of
the claims relating to the affirmative defense were received
in evidence. Neither has Cedar Grove addressed this issue in
its posttrial brief. Cedar Grove did raise in its brief its re-
newed defense to the Board’s determination of the unit, a
matter which it had initially pressed in the representation
proceeding. Needless to say I am bound by the Board’s
modification of the Regional Director’s unit determination to
include additional part-time on-call employees in the bar-
gaining unit and that issue, previously litigated, may not be
relitigated before me.
The burden of establishing that the allegation regarding the
‘‘sale’’ of District 6 is newly discovered or previously un-
available or that special circumstances are present is on the
party seeking to overcome its preclusion. Frye v. Steel-
workers Local 3489, 767 F.2d 1216 (7th Cir. 1985). Cedar
Grove has not met the burden and is thus not entitled to re-
litigate in this proceeding alleging a violation of Section
8(a)(5) an issue which it could have litigated in the prior rep-
resentation proceeding. Sea-Jet Trucking Corp., 304 NLRB
67 (1991); Wickes Corp., 261 NLRB 1062 (1982). Neither
has Cedar Grove complied with Board Rule Section
102.67(f) which precludes relitigation in any related subse-
quent ULP proceeding of any issue which was, or could have
been raised in the representation proceeding where the party
seeking to raise the same has failed to request review. Cedar
Grove did not seek review. While District 6 did seek review,
its request was denied, and, under another portion of Section
102.67(f) it would also be precluded from relitigating the
issue in this proceeding. Cedar Grove also cannot argue that
Aldrich’s threat when combined with the ‘‘buy’’ allegation
constitutes a new allegation not previously available to it
which justifies its raising it in this proceeding. Such evi-
dence, of a discrete act which I have concluded violated the
Act, is insufficient, alone, to warrant the relief sought. See
Holiday Inn Palto Alto, 298 NLRB 521 at fn. 2 (1990). Its
combination, with the allegation previously available to
Cedar Grove, does not materially add to the claim of mis-
conduct serious enough to warrant the extraordinary relief of
vacating 1115’s certification. Furthermore, District 6 was in
possession of the facts comprising the threat by mid-October,
1990, at least 2 weeks before the Regional Director’s
issuance of a Second Direction of Election in the underlying
representation case on November 1, 1990, and 3 months be-
fore 1115 was certified as bargaining representative on Janu-
ary 15, 1991. To the extent that Cedar Grove has deferred
in asserting its defense to District 6, whatever evidence Dis-
trict 6 has presented through its own witnesses may be pre-
cluded from affecting the certification because of its, District
6’s, failure to expeditiously pursue the misconduct before
Region 22. Holiday Inn Palto Alto, supra.
Putting aside the procedural handicap Cedar Grove faces
here, an examination of the merits of its defense shows that
the relief requested is not warranted.
Both charges filed by District 6, the first in Case 29–CB–
7618 alleging the attempt to purchase District 6 and the sec-
ond, in Case 29–CB–7911, consolidated for hearing with
Cases 22–CA–17729 and 22–CA–17749, were filed against
1115, and not 1115-New Jersey. As noted earlier, each is a
separate labor organization, and, although Aldrich is an offi-
cer of both, he is alleged to have been acting only as an
agent of 1115 and his conduct is claimed to bind and result
in illegal conduct only by 1115 in the consolidated case here-
in. As the conduct alleged in the affirmative defense as
fraudulent in connection with the ‘‘buyout’’ attempt was also
asserted against 1115, and not 1115-New Jersey, in the
charge in Case 29–CB–7618, even if the conduct could rise
to the level of disqualifying conduct under the Act sufficient
to warrant the extraordinary remedy of removal of the certifi-
cation in Cedar Grove, it could not affect 1115-New Jersey,
the separate union which won the election and was certified
as the exclusive bargaining representative.
The branch of the affirmative defense questioning 1115-
New Jersey’s status as a labor organization is underminded
both by the parties’ stipulation to its labor organization status
under the Act on the record at the hearing in Case 22–RC–
10234, as well as by the uncontested testimony of 1115 New
Jersey Business Agent Guy Masters that employees partici-
654 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
pate in its organization and that it exists for the purpose, in
whole or n part, of dealing with employers concerning
wages, hours and other terms and conditions of employment.
See Alto Plastics Mfg. Corp., 136 NLRB 850, 851 (1962).
The series of documents relating to 1115-New Jersey’s par-
ticipation in Board representation proceeding and certifi-
cation as representative received in evidence confirm 1115-
New Jersey’s labor organization status.
Assuming that the issue was properly raised as a defense
in this proceeding, and that the conduct of offering to pur-
chase District 6 shops and employees and the threat of bodily
harm to a District agent could be attributed to 1115-New Jer-
sey, I conclude that nothing placed on the record before me
justifies revoking its certification as bargaining agent for the
Cedar Grove employees.
The Board has justifiably limited the extreme remedy of
revocation to those instances in which by its flagrant acts of
violence and misconduct in the particular case the Union in-
volved has shown a total lack of interest in representing em-
ployees in collective bargaining or concern for promoting the
Act’s policies of promoting collective bargaining and indus-
trial peace. See Holiday Inn Palto Alto, supra at fn. 2; Gibbs
& Cox, 292 NLRB 757 (1989); Teamsters Local 703 (Kenni-
cott Bros. Co.), 284 NLRB 1125, 1126 (1987); Union
Nacional de Trabajadores (Carborundum Co.), 219 NLRB
862 (1975), enfd. 540 F.2d 1 (1st Cir. 1976), cert. denied
429 U.S. 1039 (1977); Laura Modes Co., 144 NLRB 1592
(1963). Such is not the case here, as I have noted previously.
The testimony before me confirms that which prior re-
viewing bodies of the Board have concluded regarding the
alleged conduct of 1115 and/or 1115 New Jersey. The
Union’s series of discussions with Jarema of District 6 could
all be interpreted as preliminary attempts to arrange a legiti-
mate transfer of members, treasury and collective-bargaining
agreements from District 6 to a newly created local affiliated
with 1115 District Council for a consideration representing
District 6’s partial loss of members and contracts. The testi-
mony most telling in this regard is Jarema’s own account of
his last meeting with District Council President Mickey
Sackman during which these elements were discussed and a
proposal was made by Sackman for another meeting to be
attended by the Union’s attorney and accountant.
Doubt has been cast on the illegality of 1115’s actions by
the apparent refusal of the FBI or Department of Labor to
actively pursue further investigations of the matter. Region
29 which investigated District 6’s charge making the same
allegation encompassed in Cedar Grove’s affirmative defense
concluded, on advice, and was affirmed on appeal, that the
buyout offer itself did not rise to the level of an unfair labor
practice. The full presentation of evidence on the issue that
Cedar Grove and District 6 were accorded here has not
strengthened their defense or shown sufficient grounds to re-
voke 1115-New Jersey’s certification.
Nothing in the law or the cases I have cited convinces me
that 1115’s threat of physical harm may not be appropriately
remedied by traditional means provided for under the Act.
As Cedar Grove has admitted the certification of 1115-
New Jersey, its refusal of the Union’s request to bargain with
it, as well as its institution of a savings plan, an admitted
term and condition of employment, without notice or afford-
ing an opportunity to bargain to 1115 New Jersey and its re-
fusal to provide information requested by the Union admit-
tedly relevant and necessary to its obligations as bargaining
agent, I conclude that Cedar Grove has refused to bargain in
each of these respects in violation of Section 8(a)(1) and (5)
of the Act.
Further, by continuing to deduct and remit dues to District
6, the former collective-bargaining representative of its unit
employees, Cedar Grove has violated Section 8(a)(1), (2),
and (3) of the Act. Welsbach Electric Corp., 236 NLRB 503,
515 (1978); Howard Creations, 212 NLRB 179, 182–183
(1974).
CONCLUSIONS OF LAW
1. Respondent Cedar Grove Manor Convalescent Center
and Oceanside Convalescence and Rehabilitation Center are
employers engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
2. Respondent Union, 1115 Nursing Home and Hospital
Employees Union - New Jersey A, a Division of 1115 Dis-
trict Council, H.E.R.E., AFL–CIO; Local 1115, Nursing
Home and Hospital Employees, a Division of 1115 District
Council, H.E.R.E., AFL–CIO; and District 6, International
Union of Industrial, Service, Transportation and Health Em-
ployees are each a labor organization within the meaning of
Section 2(5) of the Act.
3. All full-time, regular part-time and on-call (who regu-
larly average 4 or more hours of work per week in the last
quarter) nursing aides, dietary employees, maintenance em-
ployees, housekeepers and laundry employees employed by
Respondent Employer at its Cedar Grove, New Jersey facil-
ity, excluding all clerical employees, registered nurses, LPNs,
technical and professional employees, supervisory cooks, in-
structors, administrative and executive employees, confiden-
tial employees, guards and supervisors as defined in the Act
constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act.
4. On or about January 15, 1991, 1115 Nursing Home and
Hospital Employees Union - New Jersey A, a Division of
1115 District Council, H.E.R.E., AFL–CIO, was certified as
the exclusive representative of the unit for the purposes of
collective bargaining with respect to rates of pay, wages,
hours of employment, and other terms and conditions of em-
ployment. Since that date, the said Union has been the exclu-
sive representative of all employees in the unit found appro-
priate in Conclusions of Law 3 for purposes of collective
bargaining within the meaning of Section 9(a) of the Act.
5. Since on or about January 15, 1991, by continuing to
deduct dues from the pay of unit employees and remitting
them to District 6, International Union of Industrial, Service,
Transportation and Health Employees, at a time when 1115,
Nursing Home and Hospital Employees Union, New Jersey
A had been certified as the exclusive representative of the
unit employees, the Respondent Employer has rendered, and
is rendering unlawful assistance and support to a labor orga-
nization, and has discriminated and is discriminating in re-
gard to the hire or tenure or terms and conditions of employ-
ment of its employees, thereby encouraging membership in
a labor organization, and has thereby been engaging in unfair
labor practices within the meaning of Section 8(a)(1), (2),
and (3) of the Act.
6. By refusing to recognize and to bargain with 1115,
Nursing Home and Hospital Employees Union, New Jersey
A, by failing and refusing to furnish the said Union with in-
655CEDAR GROVE MANOR CONVALESCENT CENTER
6 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
formation requested by it which is necessary for, and rel-
evant to, the performance of its functions as the exclusive
collective-bargaining representative of the unit described in
paragraph 3 above, and by instituting unilaterally and without
prior notice to the Union or having afforded it an opportunity
to bargain and negotiate with respect to the subject matter or
its effects, a savings plan for unit employees containing bor-
rowing privileges, as well as life insurance and retirement
benefits, the Respondent Employer has failed and refused,
and is failing and refusing, to bargain collectively and in
good faith with the said Union, and has thereby been engag-
ing in unfair labor practices within the meaning of Section
8(a)(1) and (5) of the Act.
7. By threatening a business agent for District 6 with bod-
ily harm, under circumstances where such threats became
known to employees of employers with whom District 6 had
ongoing bargaining relationships, in order to dissuade the
business agent from continuing to give testimony or other
evidence before the Board in Case 29–CB–7618, and to dis-
courage access to the Board, Respondent Union, 1115 Nurs-
ing Home and Hospital Employees Union, a Division of
1115 District Council, H.E.R.E., AFL–CIO restrained and
coerced, and is restraining and coercing, employees in the
exercise of the rights guaranteed in Section 7 of the Act, and
has thereby been engaging in, unfair labor practices within
the meaning of Section 8(b)(1)(A) of the Act.
8. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent Employer and Respond-
ent Union have each engaged in certain unfair labor prac-
tices, respectively, in violation of Section 8(a)(1), (2), (3),
and (5) and 8(b)(1)(A) of the Act, I shall recommend that
they each cease and desist therefrom and take certain affirm-
ative action which are necessary to effectuate the the policies
of the Act.
I shall recommend that the Respondent Employer, on re-
quest, bargain in good faith with 1115 Nursing Home and
Hospital Employees Union, New Jersey A as exclusive col-
lective-bargaining representative of its unit employees and
embody any understanding reached in a signed agreement. I
will further recommend that the Respondent Employer be re-
quired to refund to employees dues which have been de-
ducted from their pay and remitted to District 6, with interest
thereon to be computed in the manner prescribed in Florida
Steel Corp., 231 NLRB 651 (1977), and New Horizons for
the Retarded, 283 NLRB 1173 (1987).
To ensure that the unit employees are accorded the serv-
ices of their selected bargaining agent for the period provided
by law, I also recommend that the initial period of the cer-
tification be construed to begin on the date the Respondent
Employer begins to bargain in good faith with the said
Union. Sea-Jet Trucking Corp., 304 NLRB 67, 68 (1991);
Mar-Jac Poultry Co., 136 NLRB 785 (1962).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended6
ORDER
A. The Respondent, Cedar Grove Manor Convalescent
Center, Cedar Grove, New Jersey, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively with 1115 Nursing and
Hospital Employees Union - New Jersey A, a Division of
1115 District Council, H.E.R.E., AFL–CIO, as the exclusive
representative of our employees in the following unit with
respect to rates of pay, wages, hours of employment, and
other terms and conditions of employment:
All full-time, regular part-time and on-call (who regu-
larly average four or more hours of work per week in
the last quarter) nursing aides, dietary employees, main-
tenance employees, housekeepers and laundry employ-
ees employed by the Employer at its Cedar Grove, New
Jersey facility, excluding all clerical employees, reg-
istered nurses, LPNs, technical and professional em-
ployees, supervisory cooks, instructors, administrative
and executive employees, confidential employees,
guards and supervisors as defined in the Act.
(b) Refusing to furnish to the Union information requested
by it which is necessary for, and relevant to, the performance
of its functions as the exclusive collective-bargaining rep-
resentative of the employees in the unit described in para-
graph (a), above.
(c) Unilaterally, and without prior notice to the Union or
having afforded it an opportunity to bargain and negotiate
with respect to the subject matter or its effects, instituting a
savings plan for unit employees, containing borrowing privi-
leges, as well as life insurance and retirement benefits.
(d) Withholding from the pay of any of its unit employees
and remitting to District 6, International Union of Industrial,
Service, Transportation and Health Employees union dues, at
a time when another Union, 1115 Nursing Home and Hos-
pital Employees Union - New Jersey A, a Division of 1115
District Council, H.E.R.E., AFL–CIO, has been certified as
the exclusive collective-bargaining representative of its unit
employees.
(e) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Reimburse each employee or former employee from
whose wages it has deducted and remitted to District 6 union
dues on behalf of District 6, the amount of money which has
been deducted and remitted, together with interest thereon
computed in the manner set forth in the remedy section.
(b) Recognize and, on request, bargain with 1115 Nursing
Home and Hospital Employees Union - New Jersey A, a Di-
vision of 1115 District Council, H.E.R.E., AFL–CIO as the
collective-bargaining representative of all employees em-
ployed by it in the unit described in paragraph 1(a), above.
(c) Furnish to the Union information requested by it which
is necessary for, and relevant to, the performance of its func-
656 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
8 See fn. 7, above.
tions as exclusive collective-bargaining representative in the
aforesaid unit.
(d) Preserve and, on request, make available to the Board
or its agents for examination and copying all records nec-
essary to analyze and compute the amount of reimbursement
to employees, if any, which may be due under paragraph 2(a)
of this recommended Order.
(e) Post at its facility in Cedar Grove, New Jersey, copies
of the attached notice marked ‘‘Appendix A.’’7 Copies of the
notice on forms provided by the Regional Director for Re-
gion 22, after being signed by the Respondent Employer’s
authorized representative, shall be posted by Respondent Em-
ployer immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places, including all places
where notices to its employees are customarily posted. Rea-
sonable steps shall be taken by Respondent Employer to en-
sure that the notices are not altered, defaced, or covered by
any other material.
(f) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent Em-
ployer has taken to comply.
B. The Respondent, Local 1115, Nursing and Hospital
Employees, a Division of 1115 District Council, H.E.R.E.,
AFL–CIO, its officers, agents, and representatives, shall
1. Cease and desist from
(a) Threatening a business agent for District 6, Inter-
national Union of Industrial, Service, Transportation and
Health Employees, or any other representative of that or any
other Union, with bodily harm under circumstances where
such threats became known to employees of employers with
whom District 6 or such other Union has ongoing bargaining
relationships, with the purpose of dissuading and discour-
aging the giving of testimony before the Board and to dis-
courage access to the Board.
(b) In any like or related manner restraining or coercing
employees in the exercise of rights guaranteed them by Sec-
tion 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Post at its offices and meeting halls copies of the at-
tached notice marked ‘‘Appendix B.’’8 Copies of the notice
on forms provided by the Regional Director for Region 22,
after being signed by Respondent Union’s authorized rep-
resentative, shall be posted by Respondent Union imme-
diately upon receipt and maintained for 60 consecutive days
in conspicuous places, including all places where notices to
members are customarily posted. Reasonable steps shall be
taken by Respondent Union to ensure that the notices are not
altered, defaced, or covered by any other material.
(b) Mail signed copies of the attached notice marked ‘‘Ap-
pendix B’’ to the Regional Director for posting at the Atlan-
tic City, New Jersey facility of Oceanside Convalescence and
Rehabilitation Center.
(c) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent Union
has taken to comply.
APPENDIX A
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 vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT refuse to bargain collectively with 1115
Nursing and Hospital Employees Union - New Jersey A, a
Division of 1115 District Council, H.E.R.E., AFL–CIO as
the exclusive representative of our employees in the fol-
lowing unit with respect to rates of pay, wages, hours of em-
ployment, and other terms and conditions of employment.
All full-time, regular part-time and on-call (who regu-
larly average four or more hours of work per week in
the last quarter) nursing aides, dietary employees, main-
tenance employees, housekeepers and laundry employ-
ees employed by us at our Cedar Grove, New Jersey
facility, excluding all clerical employees, registered
nurses, LPNs, technical and professional employees, su-
pervisory cooks, intstructors, administrative and execu-
tive employees, confidential employees, guards and su-
pervisors as defined in the Act.
WE WILL NOT refuse to furnish to the Union information
requested by it which is necessary for, and relevant to, the
performance of its functions as the exclusive collective-bar-
gaining representative of our employees in the unit described
above.
WE WILL NOT unilaterally, and without prior notice to the
Union or having afforded it an opportunity to bargain and
negotiate with respect to the subject matter or its effects, in-
stitute a savings plan for our unit employees, containing bor-
rowing privileges, as well as life insurance and retirement
benefits.
WE WILL NOT withhold from the pay of any of our unit
employees and remit to District 6, International Union of In-
dustrial, Service, Transportation and Health Employees union
dues, at a time when another Union, 1115 Nursing Home and
Hospital Employees Union - New Jersey A, a Division of
1115 District Council, H.E.R.E., AFL–CIO, has been cer-
tified as the exclusive collective-bargaining representative of
our unit employees.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce any of our employees in the exercise of
the rights guaranteed by Section 7 of the Act.
WE WILL reimburse each employee or former employee
from whose wages we have deducted and remitted to District
6 union dues on behalf of District 6, the amount of money
which has been deducted and remitted, together with interest
thereon.
WE WILL recognize and, on request, bargain with 1115
Nursing Home and Hospital Employees Union - New Jersey
A, a Division of 1115 District Council, H.E.R.E., AFL–CIO
as the collective-bargaining representative of our employees
employed by us in the unit described above.
CEDAR GROVE MANOR CONVALESCENT CENTER
657CEDAR GROVE MANOR CONVALESCENT CENTER
APPENDIX B
NOTICE TO EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT threaten a business agent for District 6,
International Union of Industrial, Service, Transportation and
Health Employees, or any other representative of that or any
other Union, with bodily harm under circumstances where
such threats became known to employees of employers with
whom District 6 or such other Union has ongoing bargaining
relationships, with the purpose of dissuading and discour-
aging the giving of testimony before the Board and to dis-
courage access to the Board.
WE WILL NOT in any like or related manner restrain or co-
erce employees in the exercise of rights guaranteed to them
by Section 7 of the Act.
LOCAL 1115, NURSING HOME AND HOSPITAL
EMPLOYEES, A DIVISION OF 1115 DISTRICT
COUNCIL, H.E.R.E., AFL–CIO