Colonial Haven Nursing Home, Inc.

National Labor Relations Board - Board Decisions

Jun 30, 1975

218 N.L.R.B. 1007 (N.L.R.B. 1975)

COLONIAL HAVEN NURSING HOME, INC. 1007
Colonial Haven Nursing Home , Inc. and Service and
Hospital Employees, Local No. 50, of Service
Employees International Union , AFL-CIO-CLC.i
Cases 14-CA-7906 and 14-CA-7962
June 30, 1975
DECISION AND ORDER
BY MEMBERS FANNING, JENI{INS, AND
PENELLO
On December 27, 1974, Administrative Law Judge
Jerry B. Stone issued the attached Decision in this
proceeding. Thereafter, both General Counsel and
Respondent filed exceptions and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the parties' exceptions
and briefs and has decided to affirm the rulings,
fmdings,2 and conclusions of the Administrative Law
Judge to the went they are consistent herewith.
1. We find merit in General Counsel's exception
to the Administrative Law Judge's failure to find an
8(a)(1) violation with respect to the complaint
allegations that Respondent's administrator, Walter,
coercively interrogated employee Sharon Bridick.
Bridick testified that on or about March 6, 1974,3
Walter engaged her in a conversation in which he
asked her, among other things, whether she "had
heard anything about the union .... " Walter
testified that he-asked employees if they had seen the
NLRB notice which had been posted that day.
The Administrative Law Judge nowhere specifical-
ly discusses this allegation in his Decision. However,
with respect to almost identical allegations of 8(a)(1)
conduct by Walter involving interrogations of other
employees on the same day, the Administrative Law
Judge discredited Walter's explanation and found
the alleged interrogations to have been coercive in
violation of Section 8(a)(1). Since we believe the
Administrative Law Judge's failure to discuss the
Bridick incident was an oversight, and there being no
reason to believe that the Administrative Law Judge
would have treated her testimony any different from
that of the other employees whose testimony he
credited, if he had specifically considered it, we
hereby find that Walter did interrogate employee
i The name of the Charging Party appears as amended at the hearing.
2 Respondent has excepted to certain credibility findings made by the
Admtnistrative Law Judge . It is the Board's established policy not to
oven-We an Administrative Law Judge 's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (CA. 3, 1951 ). We have
218 NLRB No. 137
Bridick as alleged in the complaint. We further find
that, in the absence of any justification or explana-
tion for his asking her, without assurances of
nonreprisals, about her knowledge of union activity,
such questioning was coercive in violation of Section
8(a)(1) of the Act.
2. We also find merit in General Counsel's
exceptions to the Administrative Law Judge's failure
to find an 8(a)(1) violation with respect to the
complaint allegation that Walter impliedly promised
wage increases to employees to encourage them to
abandon their support for the Union.
Crediting employee Pierson's testimony over that
of Walter where they conflicted with respect to the
substance of a conversation between them on or
about March 6, the Administrative Law Judge found
that Walter told Pierson "that he had been an
administrator of 13 nursing homes and either one of
them didn't have a union and they got along quite
well and that he was a nickel and dime man. . . . He
said that he would rather give the employees a raise
when he thought that they really needed it than to
spend it out every 3 months...." 4 The Administra-
tive Law Judge further credited the testimony of
employee Willaredt over that of Walter, as to the
substance of a conversation which he found occurred
on March 7, that Walter told Willaredt, in the
context of describing the disadvantages of a union,
that "some nursing homes where he used to work
that if the girls wanted to make a good wage they
could as long as they worked at it." And although
not discussed or considered by the Administrative
Law Judge, again apparently through oversight, the
testimony of employee Bridick reveals that, on or
about the same date that Walter asked her whether
she had heard anything about the Union, he
discussed with her the disadvantages of a union, gave
her a paycheck which he indicated would reflect a
10-cent-per-hour increase in her pay, and told her
that the employees "might be evaluated again and
get a raise in a couple of months."
Notwithstanding the above evidence, the Adminis-
trative Law Judge found that "the facts [were]
insufficient to reveal that the Respondent .. .
impliedly promised employees wage increases if they
abandon[ed] the Union," We disagree. In our view,
Walter's statements to the employees about his wage
policies, when considered in context and together
with his discussion of the disadvantages of a union,
his interrogation of employees as to union activities,
carefully examined the record and find no basis for reversing his findings.
3 Hereinafter all dates refer to 1974, unless otherwise indicated.
4 As part of that same testimony, Mrs. Pierson further testified that
Walter told her "that there was a nursing home where he had been an
administrator where the nurses aides can get as high as $2.85 an hour and
they were non-union."
1008 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and his announcement of wage increases for each of
the employees he spoke with,5 establish that Walter
was clearly attempting to impress upon employees
Pierson, Willaredt, and Bridick that they could get
wage increases in the future without the assistance of
the Union. Under long-established Board precedent,
such implied, promises of future wage increases,
having as their object to dissuade employees from
continuing their suppoit' for the Union, constitute
interference with, the employees' exercise of their
Section 7 rights' and, as such, violate Section 8(a)(1)
of the Acts We so find, here.
3. We ford merit in General Counsel's exception
to the Admistr4tive Law Judge's failure to fmd an
8(a)(1) violation in Respondent's grant of a 25-cent-
per-hour increase in pay to employee Pierson.
Although the Administrative Law Judge found that
on April 27, 1974, Administrator Walter'told Pierson
that she would receive a raise of 25 cents per hour for
being in charge of a wing of the nursing home, he
found insufficient evidence that the-raise was given
to discourage, the employees' union activities. We
disagree.
As General Counsel notes, the Union had notified
Respondent on April 26 that it intended to picket
Respondent's premises the next day commencing at
6:30 a.m. unless Respondent took action to,settle the
unfair labor piactice charges which were pending
against it. Then, on April 27, at almost 'the precise
time that the announced picketing was scheduled to
begin, , Walter approached Pierson as she was
preparing to clock out for the day and told her that
she would be getting a 25-cent-an-hour increase for
being in charge, asked her how many days she had
been in charge,7 and instructed her to write on her
timecard the number of days she had been in charge
sa that he could pay her in accordance with the new
rate. Pierson further testified that, about 3 minutes
after her conversation with Walter, Mrs. Skube, the
director of nursing, approached her and informed
her for the first time that she was in charge. It is also
noteworthy that Pierson was one of the employees
whom the Administrative Law Judge found that
Walter unlawfully interrogated about the Union in
early March during the same conversation when he
informed her, that she was getting a 10-cent-an-hour
increase , and during which, as we have previously
concluded, Walter unlawfully promised by itnplica.-
tion'that further increases would be forthcoming.
Under these circumstances, we believe that the
timing of the 25-cent raise and the unusual size of
that pay increase was enough to make out a prima
facie case of interference. Having done so, the
5 For the reasons stated by the Administrative Law Judge, we do not
find that the increases that were given that day to employees violated the
Act.
burden shifted to Respondent to establish (1) that
such a substantial increase was consistent with its
prior practice with respect to compensating individu-
als similarly situated as being in charge of a wing of
the nursing home, and (2) to explain the unusual
coincidence of the timing of the increase granted
here, to the commencement of the strike, particularly
in view , of the unrefuted evidence that by then
Pierson had been in charge for 4 days and had not
previously been notified that she would be receiving
such an increase for having been placed in charge.
Having adduced no evidence with respect to these
matters, Respondent has not, in our view, satisfied
that burden. Accordingly, we find that the 25-cent-
an-hour increase which Respondent granted Pierson
on April 27 ' was an attempt to encourage her to
abandon the Union and not join in the strike
commencing that very morning and that, by such
conduct, Respondent violated Section 8(a)(1) of the
Act.
4. We find merit in General Counsel's exception
to -the Administrative Law Judge's fording that the
Union's April 27 to May 31 strike was for an
unlawful recognitional object rather than an unfair
labor practice strike, as General Counsel contends.
With respect to the strike, the Administrative Law
Judge found the following facts: On April 23, the
Regional Director issued his decision dismissing the
Union's petition on the ground that the sought-after
unit did not yet contain a representative complement
of employees. The Union received the decision the
next day, April 24. That evening and the next
evening the Union held meetings of its supporters
during the course of which, Potterton, the Union's
field representative responsible for organizing Re-
spondent's employees throughout the campaign, told
the employees that the Union and the employees had
"gotten ripped off" by Respondent and that Respon-
dent had committed many unfair labor practices.
Potterton then advanced several alternative courses
of action which the employees could take, including
(1) appealing the Regional Director's dismissal
decision, (2) filing a new petition, or (3) going on
strike and filing unfair labor practice charges.
Potterton also told those present that he thought "a
strike would be one way in which we could both get
some recourse and get an election, and also put the
company to cease their unfair labor practices." The
Administrative Law Judge further credited employee
Pierson's testimony that Potterton also alluded to
securing recognition from Respondent as part of its
object in pursuing the strike alternative.
6 See, e.g., JFB Manufacturing, Inc., 208 NLRB 2 (1973)
7 Pierson testified that she told Walter "that this was the fourth day" that
she had been in charge.
COLONIAL HAVEN NURSING HOME, INC. 1009
At the meeting held on the evening of April 25,
Potterton read the text of the letter he had drafted
which was to be delivered to Respondent if the
employees decided that they wanted to proceed with
a threat to strike and a strike if necessary . The letter
reads in pertinent part:
Colonial Haven Nursing Home has engaged in a
series of unfair labor practices and has repeatedly
refused to recognize the rights of its employees.
Unless an action in good faith is taken to settle
these charges by Saturday, April 27 at 6:30 a.m.,
an authorized picket line will be established at
that time... .
After reading the letter, Potterton asked the employ-
ees to vote on whether they wanted to go ahead with
the strike plan. Those present apparently voted to
proceed with it. When Respondent failed to respond
to the letter by 6:30 the next morning, April 27,
picket lines were established and approximately 37
employees failed to appear for work.
The Administrative Law Judge found that during
the strike, although generally the Union had employ-
ees carrying picket signs at the premises which did
not allude to a- recognition object, on occasion other
employees could be seen carrying picket signs nearby
which did refer to recognition as being one of the
objects of the strike. Also a union bulletin which
issued during the strike gave as the second reason
behind the strike that "our employer has refused to
recognize [the Union] as our collective bargaining
agent even though a majority of us have signed
application cards requesting such representation."
Essentially based on the foregoing facts, the
Administrative Law, Judge concluded that the em-
ployees' strike was not an unfair labor practice strike,
reasoning (1) the unfair labor practices involved only
a "few instances" of 8(a)(1) conduct including
interrogations and a request to one employee to
report back on the union activities of others, and
these "unfair labor practices are not the type
reasonably to be expected to cause a union or
employees to seek the self-help use of a strike for
correction"; and (2) "the overwhelming weight of the
facts reveals that the Union and employees were
motivated in having a strike as a means of putting
pressure on the Respondent to immediately and
voluntarily recognize the Union as bargaining agent
," and even "if the Union were seeking to force
an election, it was seeking to force an election . . . at
a time that such election would be improper."
Accordingly, the Administrative Law Judge conclud-
ed that "the overriding reason for the strike was for
an unlawful purpose-the obtaining of recognition
by the Union as an exclusive collective bargaining
agent in a bargaining unit which the Regional
Director had determined to be a nonrepresentative
complement." We disagree.
The principle is well established that, employees
may be entitled to the special reinstatement rights
provided unfair labor practice strikers even though
the strike activity may have been motivated by
concerns which went beyond their employer's com-
mission of unfair labor practices, so long as it can be
determined from the record as a whole that the
unfair labor practices contributed in part to the
employees' decision to strike. Thus as this Board
stated in footnote 4 of Larand Leisurelies, Inc., 213
NLRB No. 37 (1974):
Even assuming, arguendo, that the Administra-
tive Law Judge was correct in asserting that the
discharge of Bell and Brown [not alleged to be
unlawful ] was a primary cause of the strike, such
a finding would not warrant a conclusion that the
strike was an economic strike in view of the
convincing record evidence that the employees'
decision to strike was also occasioned by the
Employer's numerous unlawful acts. Thus, as we
have elsewhere pointed out, when it is reasonable
to infer from the record as a whole that an
employer's unlawful conduct played a part in the
decision of employees to strike, the strike is an
unfair labor practice strike. Juniata Packing
Company, 182 NLRB 934 (1970).
Although, as noted, the Administrative Law Judge
found that the "overriding reason for the strike" was
recognitional, he did not specifically make a finding
as to whether Respondent's unfair labor practices
contributed to the employees' decision to strike. We
find it unnecessary to determine which concerns
predominated in the employees' minds in determin-
ing to go out on strike (if indeed recognition was an
object), as it is clear from the facts found by the
Administrative Law Judge and detailed `above that
Respondent's unfair labor practices clearly contrib-
uted to their desire to take the concerted action of
engaging in a strike. We so find.
Having found that Respondent's unfair labor
practices contributed to the employees' motivation to
strike, we find the strikers to be unfair labor practice
strikers. As such, they would be entitled to automatic
reinstatement upon their unconditional offer to
return to work unless, as found by the Administrative
Law Judge, the strikers are to be deemed to have lost
this privileged status-and 'even their protected
"employee" status under the Act-because other
objects sought to be promoted by the strike were
unlawful or contrary to the policies of the Act. The
Administrative Law Judge found that the Union was
1010 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
either attempting to obtain recognition from the
Respondent by means of its strike, or attempting to
get an election, and that these objects contravened
the policies of the Act inasmuch as the Regional
Director had only recently dismissed its petition for
an election as seeking to bargain for a unit that was
not representative of the anticipated complement of
employees. Contrary to the Administrative Law
Judge, we do not believe that the employees' strike
lost its status as an unfair labor practice strike, or
that they were no longer entitled to the Act's
protection of them as employees for engaging in it.
At the outset, we note that there is nothing
unlawful or contrary to the Act in attempting to
obtain voluntary recognition from an employer at a
time when the Board under its expanding unit
principles will not authorize the use of its resources
to conduct an election because there is evidence that
in the near future the number of employees in the
sought-after unit and number of classifications filled
will increase substantially. Although the Board will
not recognize such voluntary recognition, or any
agreement'entered into as a result thereof, to be a bar
against petitions filed after the unit has been filled by
a representative complement,8 that policy was
designed to preserve the right of participation in
choosing a representative, or not to be represented,
to as many employees as possible so as not to "lock
in" for the term of contracts up to 3 years in duration
a group of nonconsenting employees disproportion-
ately larger than that which initially made the choice
between representation and no representation; 9 it
was never intended, however, to preclude an employ-
er and employees from entering into an agreement
providing for terms and conditions of employment
until such time as a petition has been filed for the
expanded unit.
Moreover, Section 8(b)(7)(C) of the Act clearly
permits picketing for a recognitional object, so long
as its provisions are satisfied.10 Although it appears
from the record here that the employees struck and
picketed for approximately a week longer than the
30-day maximum grace period provided therein for
filing a petition,11 no 8(b)(7) charge was ever filed in
this case putting the conduct in issue and putting the
Union on notice that it would be held to defend
against same, nor were these issues sufficiently
litigated in the present proceeding to make any
findings thereon.
However, even assuming arguendo that the Union's
picketing was motivated in part by a recognitional
object and that its extended picketing may have been
found to have violated Section 8(b)(7)(C) of the Act
had it been charged and litigated, we would
nonetheless find that the Union's conduct in picket-
ing Respondent's premises for over 30 days did not
seriously contravene the policies of the Act under the
circumstances present here. In this regard, we note
that the Union commenced its picketing motivated in
substantial part by Respondent's unfair labor prac-
tices; there is no record evidence of any affirmative
attempt by the Union to request recognition during
its picketing; and there is no evidence that the
duration of its picketing was extended because of its
recognitional object. Moreover, in weighing the
relative wrongdoings on both sides (assuming arguen-
do the Union's picketing may have been found
unlawful) we do not consider the Union's conduct in
picketing a few days longer than the 30 days
provided under Section 8(b)(7)(C) without filing a
petition, under the circumstances here where a prior
petition filed by the Union had just been dismissed
by the Regional Director for expanding unit reasons,
to outweigh the unfair labor practices which we have
found Respondent committed in this case.12 As the
6 General Extrusion Company, Inc„ General Bronze Alwmtite Products
Corp., 121 NLRB 1165 (1958).
9 See Clement Blythe Companies, A Joint Venture, 182 NLRB 502 (1970),
for a more extensive discussion of the policy considerations underlying this
Board policy.
10 Contrary to the Administrative Law Judge's suggestion that the
Union's picketing, to the extent it was in support of an expedited election,
was also "improper," the Board has previously interpreted Sec. 8 (bx7)(C) as
providing adequate procedures against abuse . Thus, as the Board stated in
International Hod Carriers Building and Common Laborers Union of America,
Local 840, AFL-CIO (C. A. Blinn Construction Company), 135 NLRB 1153
at 1157 (1962):
The expedited election procedure is applicable, of course, only in a
Section 8(b)(7)(C) proceeding, i.e., where an 8(b)(7)(C) unfair labor
practice charge has been filed... Thus, in the absence of an
8(bx7XC) unfair labor practice charge, a union will not be enabled to
obtain an expedited election by the mere device of engaging in
recognition or organization picketing and filing a representation
petition . [Footnote omitted .] And on the other hand , a picketing union
which files a representation petition pursuant to the mandate of Section
8(b)(7xC) and to avoid its sanctions will not be propelled into an
expedited election, which it may desire, merely because it has filed such
a petition....
This, in our considered judgment, puts the expedited election
procedure prescribed in the first proviso to subparagraph C in its
proper and intended focus. That procedure was devised to shield
aggrieved employers and employees from the adverse of jects ofprolonged
recognition or organization picketing Absent such a grievance, it was not
designed either to benefit or to handicap picketing activity. [Emphasis
supplied.]
11 It is, of course, no defense to an 8 (b)(7)(C) charge that a union's
picketing was also motivated by the employer's unfair labor practices, where
part of the union's object in picketing is recognitional. International Hod
Carriers,supra, fn. 8.
12 See, e.g., Newspaper Production Company, 205 NLRB 738, 741 (1973),
where the Board found employees not to have lost their reinstatement rights
by striking in support of their demand to expand the unit to include
additional classifications of employees , reasoning: '
Under all of these circumstances , we cannot say that the Union's
insistence to impasse upon the kind of unit expansion which had
traditionally been treated as a suitable subject for contractual
commitment , and where the unit sought by the Union was one fully
COLONIAL HAVEN NURSING HOME, INC. 1011
First Circuit stated in N.L.R.B. v. J payer Company
and H. N. Thayer, 213 F.2d 748 at 753 (C.A. 1, 1954),
enfg. 99 NLRB 1122 (1952), cert. denied 348 U.S. 883
(1954):
On the other hand where, as in the instant case,
the strike was caused by an unfair labor practice,
the power of the Board to order reinstatement is
not necessarily dependent upon a determination
that the strike activity was a "concerted activity"
within the protection of §7. Even if it was not, the
National Labor Relations Board has power under
§ 10(c) to order reinstatement if the discharges
were not "for cause" [footnote omitted] and if
such an order would effectuate the policies of the
Act. Of course the discharge of strikers engaged
in non-Section 7 activities often may be for cause,
or their reinstatement may not effectuate the
policies of the Act, but in certain circumstances it
may. [Footnote omitted.] The point is that where
collective action is precipitated by an unfair labor
practice, a finding that that action is not protect-
ed under §7 does not, ipso facto, preclude an
order reinstating employees who have been
discharged because of their participation in the
unprotected activity. [Footnote omitted.]
We think it is clear here that Respondent's refusal
to reinstate the striking employees was not "for
cause." Respondent presented no evidence of strike
misconduct by any of the employees denied re-
instatement nor did it rely on their picketing beyond
30 days without filing a petition for denying them
reinstatement . The only reason it gave for refusing to
reinstate them was that they had been replaced. Nor
do we think the circumstances in this case are such as
to warrant denying the employees their special
reinstatement rights as unfair labor practice strikers,
even assuming arguendo that they engaged in a
technical violation of Section 8(b)(7)(C), in order to
carry out the purposes of the Act.13
Consequently, for all the above reasons, we fmd,
contrary to the Administrative Law Judge, that the
employees' strike and picketing here were motivated
in substantial part by Respondent's unfair labor
practices and that the employees did not lose their
status as unfair labor practice strikers with the
attendant right to prompt reinstatement upon their
compatible with our own standards for appropriateness , was any more
violative of its bargaining obligation than was [the Employer 's ] upon
maintaining the established , voluntarily created, and also appropriate,
unit.
13 Cf. Local Union No. 707, Highway and Local Motor Freight Drivers,
Dockmen and Helpers, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America (Claremont Polychemrcal Corpora-
tion), 196 NLRB 613 (1972), where the majority of the Board refused to
provide a reinstatement remedy for two employees who participated in
picketing which was found to be violative of Sec. 8(b)(7)(B ) of the Act. In
that case, the picketing was charged , litigated, and found to be violative,
unconditional offer to return to work because an
object of the strike may also have been to obtain
recognition or an expedited election.
5. Having found the strikers to be unfair labor
practice strikers entitled to reinstatement upon their
unconditional offer to return to work, we also find
merit in General Counsel's exception to the Adminis-
trative Law Judge's finding that only those employ-
ees who personally applied to Respondent for
reinstatement made an unconditional offer to return
to work.
As found by the Administrative Law Judge, the
Union sent Respondent a letter dated May 31, the
substance of which reads as follows:
We represent striking employees of Colonial
Haven Nursing Home. This is to advise you that
these employees are herewith unconditionally
offering to return to work.
We have notified employees on strike to report to
work at their regular starting times on Monday,
June 3, 1974.
Thereafter, several employees personally appeared
for work or phoned Respondent to inquire about
working. All were told that they had been replaced
and that they had to make new applications for jobs.
On those facts the Administrative Law Judge
found-relying on the circumstances that the letter's
last sentence alludes to notification of employees,
considered together with the fact that many employ-
ees did thereafter personally contact Respondent-
that the offer to return to work was only on behalf of
those employees who later contacted Respondent.
We disagree.
The principle is well settled that a union can make
a collective offer to return to work for all striking
employees, and "Once such a request is made, the
burden is on the employer to offer reinstatement to
employees for whom positions are available. " 14
Contrary to the Administrative Law Judge, we fmd
the Union's letter of May 31 clearly reflected that the
unconditional offer to return to work was for all
striking employees, and not just for those personally
applying thereafter.
6. Finally, we fmd merit in General Counsel's
exception to the Administrative Law Judge's failure
and the employer relied on the picketing as the reason for denying the
employees reinstatement It is also significant that there the picketing was
solely in support of recognitional objectives and therefore did not present
some of the offsetting considerations present in an unfair labor practice
strike setting, such as this one, and upon which is predicated the special
reinstatement rights of unfair labor practice strikers . See Mastro Plastics
Corp., et aL v. N.L.RB., 350 U.S. 270 (1956).
14 Newspaper Production Company v. N.L.RB., 503 F.2d 821 (C.A. 5,
1974), enfg. 205 NLRB 738 (1973); National Business Forms, 189 NLRB 964
(1971), enfd. 457 F.2d 737 (C.A. 6, 1972).
1012 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to find an 8(a)(1) violation of the Act in Respon-
dent's conduct in taking pictures of those employees
picketing in front of its premises.
As found by the Administrative Law Judge, on the
first 2 days of the strike, April 27-28, Respondent's
president, Swiatek, from time to time engaged in
photographing employees carrying picket signs in
front of Respondent's premises, and also attempted
to use a movie camera (although that camera was
inoperative). Swiatek's only justification for engaging
in picture-taking was that it was done upon the
advice of counsel. The Administrative Law Judge
dismissed the 8(a)(1) complaint allegation predicated
on this conduct on the ground that, since he was
finding the striking activity of the employees to be
unprotected, picture-taking of such unprotected
conduct does not violate Section 8(a)(1).
Having previously found that the employees' strike
and picketing at no time lost its protected nature,
and in the absence of any showing that Respondent
had a reasonable basis to expect picket line miscon-
duct or violence, we find, contrary to the Administra-
tive Law Judge, that Respondent's picture-taking
created the appearance of coercive surveillance for
purposes of future reprisals and as such violated
Section 8(a)(1) of the Act.15
THE REMEDY
As we have found that the Respondent has
engaged in unfair labor practices, in addition to
those found by the Administrative Law Judge, we
shall order it to cease and desist therefrom and take
certain affirmative action designed to effectuate the
policies of the Act.
In view of our finding that the Respondent
unlawfully refused to reinstate the unfair labor
practice strikers upon the Union's unconditional
application on May 31, 1974, we shall order it to
offer them immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to
substantially equivalent positions without prejudice
to their seniority or other rights and privileges, and
make them whole for any loss of earnings they may
have suffered by reason of the discrimination against
them by payment to them of a sum of money equal
to that they normally would have earned from the
date of the Union's unconditional request for
reinstatement to the date of Respondent's offer of
reinstatement, less any net earnings during such
period. The backpay shall be computed in accord-
ance with the remedial relief policies set forth in F.
W. Woolworth Company, 90 NLRB 289 (1950), and
Isis Plumbing and Heating Co., 138 NLRB 716
(1962). (We leave to the compliance stage of this
proceeding the determination as to whether any of
the striking employees have abandoned their interest
in a job with Respondent.)
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent,
Colonial Haven Nursing Home, Inc., Granite City,
Illinois, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Coercively interrogating employees concerning
their union membership, activities, and sympathies;
requesting employees to engage in surveillance of
other employees' union activity and to report results
thereof; impliedly , promising wage increases to
employees to encourage them to abandon their
support for the Union; granting wage increases to
employees for the same purpose; and photographing
or creating the appearance of taking pictures of
employees as they peacefully picket.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which
the Board finds necessary to effectuate the policies of
the Act:
(a) Offer unfair labor practice strikers immediate
and full reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority and
other rights and privileges, dismissing, if necessary,
any employees hired as replacements for such
positions. Respondent shall make whole said unfair
labor practice strikers for any loss of pay they may
have suffered by reason of Respondent's refusal, if
any, to reinstate them, by payment to each of them a
sum of money equal to what he would have earned as
wages during the period from the date of the Union's
first unconditional request for reinstatement of the
strikers to the date of Respondent's offer of reinstate-
ment, such loss to be computed in the manner and
with interest as in F. W. Woolworth Company, 90
NLRB 289 (1950), and Isis Plumbing & Heating Co.,
138 NLRB 716 (1962).
(b) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
15 Larand Leisurelies, Inc, 213 NLRB No. 37 (1974), discussed in sec. Decision; The Udylite Corporation, 183 NLRB 163, 173 (1970), see text
III, A, "The Nature of the Strike," of the Administrative Law Judge's accompanying fn. 55, and cases cited in the footnote.
COLONIAL HAVEN NURSING HOME, INC. 1013
(c) Post at its Granite City, Illinois, nursing home
copies of the attached notice marked "Appendix." 16
Copiles of said notice, on forms provided by the
Regional Director for Region 14, after being duly
signed by Respondent's representative, shall be
posted by it immediately upon receipt thereof, and
be maintained by it for 60 consecutive days there-
after, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or
covered by any other material.
(d) Notify the Regional Director for Region 14, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
16 In the event that 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."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which both sides had the
opportunity to present their evidence, the National
Labor Relations Board has found that we violated
the law and has ordered us to post this notice; and
we intend to carry out the order of the Board and
abidle by the following:
WE WILL NOT ask employees how they feel
about the Union or about their union activities.
WE WILL NOT ask employees to report on the
union activities of other employees.
WE WILL NOT promise future wage increases to
employees in order to persuade them to stop their
support of the Union.
WE WILL NOT grant wage increases to employ-
ees to lure them away from the Union.
WE WILL NOT take pictures of employees as
they peacefully picket our premises.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the
exercise of the rights guaranteed employees in the
National Labor Relations Act which are as
follows:
To refrain from any and all these things.
WE WILL offer the employees who engaged in a
strike from April 27 through May 31, 1974,
immediate and full reinstatement to their former
positions or, if those jobs no longer exist, to
substantially equivalent jobs, without prejudice to
seniority or other rights and privileges, dismissing
if necessary any employees hired to replace them,
and make them whole for any loss of pay they
may have suffered because of our refusal to
reinstate them.
COLONIAL HAVEN
NURSING HOME, INC.
DECISION
STATEMENT OF THE CASE
JERRY B. STONE, Administrative Law Judge: This
proceeding, under Section 10(b) of the National Labor
Relations Act, as amended, was tried pursuant to due
notice on October 21, 22, 23, and 24, 1974, at St. Louis,
Missouri.
The original charge in Case 14-CA-7906 was filed on
April 25, 1974. The original charge in Case 14-CA-7962
was filed on June 3, 1974. The cases were duly consolidat-
ed on September 11, 1974, and such order of consolidation
and the complaint issued on said date. The issues are
whether (1) Respondent has violated Section 8(a)(1) of the
Act by acts of interrogation, promises of benefits, requests
for surveillance, by suggestions of disloyalty, by granting a
wage increase to an employee, and by the taking of
pictures of a picket line, (2) a strike by employees from
April 27 to May 31, 1974, was an unfair labor practice
strike, and (3) Respondent has violated Section 8(aX3) and
(1) of the Act by refusing to reinstate employees, who had
been on strike, to their jobs upon their unconditional offer
to return to work.
All parties were afforded full opportunity to participate
in the proceeding, and the General Counsel and the
Respondent have filed briefs which have been considered.'
Upon the entire record in the case and from my
observation of the witnesses, I hereby make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
Colonial Haven Nursing Home, Inc., the Respondent, is
and has been at all times material herein , a corporation
duly organized under, and existing by virtue of, the laws of
the State of Delaware.
To engage in self-orgarth ation
To form, join, or help a union
To bargain collectively through a repre-
sentative of your own choosing
To act together for collective bargaining
or other mutual aid or protection
1 The Respondent reiterates a request that an oral settlement under-
standing between the Respondent and the Charging Party be approved. I
Mind no reason to reverse my trial ruling rejecting such oral settlement on the
basis or inadequacy as to settlement of the allegations in issue . The General
Counsel is entitled under the circumstances of this case to have such issues
litigated and determined.
1014 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At all times material herein, Respondent has maintained
its principal office and place of business at 3900 Steams
Avenue, in the city of Granite City, and State of Illinois,
herein called the Respondent's facility. Respondent is, and
has been at all times material herein, engaged in the
operation of a, proprietary professional care nursing home.
Respondent's facility located at 3900 Steams Avenue;
Granite City, Illinois, is the only facility involved in this
proceeding.
During the year ending October 31, 1974, which period is
deemed representative of its operations at all times
material hereto, Respondent, in the course and conduct of
its business operations, is deemed to have derived gross
revenues in excess of $100,000 and is deemed to have
purchased and-caused to be transported and delivered at
its Granite City, Illinois, facility, nursing supplies and other
goods and materials valued in excess of $3,600, of which
goods and materials valued in excess of $3,600 were
transported and delivered to its Granite City, Illinois,
facility directly from points located outside the State of
Illinois.
Based upon the foregoing and as conceded by the
Respondent, the Respondent is now, and has been at all
times material herein, an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Service and Hospital Employees, Local No. 50, of
Service Employees International, AFL-CIO-CLC, is a
labor organization within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
A. Supervisory Status
There is no issue and, based upon the pleadings and
admissions therein, it is concluded and found that at all
times material herein, the following named persons
occupied positions set opposite their respective names, and
have been and are now supervisors of Respondent, within
the meaning of Section 2(11) of the Act, and its agents:
Robert Swiatek - President
Jerry Walter - Administrator
Mary Jo Skube - Director of Nurses
Roger Hotson - Administrator-in-Training
B. Background2
Colonial Haven Nursing Home, Inc., the Respondent, is
engaged in the operation of a proprietary care nursing
home. The Respondent, in 1970, purchased land for the
construction of a nursing home to consist of two identical
122-bed facilities. In March 1973, the Respondent com-
menced construction of the first said facility, and, in
October 1973, hired some employees and opened for
business . Thereafter other employees have been hired.
During the initial months of operation the Respondent
has had to cope with problems of completing and
correcting details of construction and installation of
equipment, and problems of personnel change. Thus,
Respondent has had changes in administrators during the
initial period of operation.
The overall facts reveal that Respondent has a policy
and practice of telling employees at time of hiring that their
job performance will be evaluated within 3 to 6 months for
purposes of possible raises . The Respondent also has
procedures which involve the employee's own actions with
respect to such evaluation and training process.
The overall facts, however, do not reveal that the
Respondent has told all employees, when hired, about its
3- to 6-month evaluation plan, or that the Respondent has
involved all such employees in its "evaluation" process.
The overall facts do reveal that such evaluation plan was a
part of policy and practice and that many such employees
were so advised and involved in such procedures. The
overall facts persuade that the problems of correcting
details in construction and installation of equipment
resulted in some delay in job performance evaluations.
The Union commenced its organizational activity on
February 5, 1974, when Union Representative Potterton
visited the nursing home, entered the premises, and handed
out union literature. On that day Administrator Walter saw
Union Representative Potterton in the kitchen part of the
home, and asked what he was doing there. Potterton told
Walter that he was talking to the employees. Administrator
Walter told Potterton that he could not be on the premises,
it was private property, that if he saw him again on the
property, he would have him arrested, and escorted him off
the premises.
Thereafter the Union continued its organizational
efforts, received signed authorization cards from many
employees, and on March 5, 1974, filed a petition relating
to representation rights of Respondent's employees, in
Case 14-RC-7604 with the NLRB.
In the meantime Walter, who had become administrator
in late January 1974, had been told by the previous
administrator that it was important that he commence the
job evaluations with respect to raises. Around the same
time Walter was receiving similar requests from Nursing
Supervisor Skube and employees.
Prior to February 26, 1974, Nursing Supervisor Skube
told Administrator Walter in effect that they should
evaluate all of the employees who had commenced work in
October 1973. Walter, thereupon, told Skube to prepare
such a list. It appears that Skube prepared a list of
employees for such evaluation and that evaluations of such
employees were made on February 26, 1974, and thereafter
until March 5, 1974. As to the evaluation of most of the
employees, Walter noted on small commercial memo-type
note paper that the employees listed thereon were
employees who had been there since October 1973. Walter
rated the employees on a scale from 0-10 and set forth
separately employee names and wage scales as granted.
Excepting for Walter's testimony and the notes to the
effect that the employees who were evaluated had been
there since October 1973, there is little evidence relating to
the original employment date of such employees. Pierson,
2 The facts are not in dispute and are based on the credited aspects of the exhibits in the record . Included in such exhibits is the Regional Director's
testimony of Potterton , Swiatek, and Walter, and on stipulations and Decision and Order in Case 14-RC-7604, issued on April 23, 1974.
COLONIAL HAVEN NURSING HOME, INC. 1015
one of the employees evaluated, testified to the effect that
she participated in a workshop on October 5, 1973, and
was hired on November 1, 1973. Barry, another employee
who was evaluated, testified to the effect that she was hired
on November 1, 1973. Coleman, another employee who
was evaluated, testified to the effect that she was hired
about December 1, 1973.
The sum of the evidence reveals that Walter intended to
evaluate the employees who had commenced working in
October 1973, and that with minor exception the employ-
ees who were evaluated on February 26, 1974, were
employees who had commenced work in October 1973.
Considering the closeness in time of November and
October 1973, I am persuaded that Pierson and Barry may
or may not have commenced work in October 1973. In any
event, it would appear that with Pierson's having partici-
pated in the October 5 workshop, that this would have
warranted considering her as having commenced work in
October 1973. Whether Coleman's inclusion in the list
resulted from simple inadvertent error by Skube, was the
result of confusion, or simply resulted from Skube's desire
to have her evaluated and to receive a wage increase is not
clear. It very well may have resulted from Skube's desire to
have Coleman evaluated within the scope of the policy of
evalluation within 3 to 6 months.
The evidence relating to the ratings and raises given on
March 5, 1974, reveal that employee Rosenberger had, a
rating of 9 and received a 5-cent raise, that employees
Barker and Ponder had ratings of 8, and that employee
Pierson had a rating of 7, and that Barker, Ponder and
Pierson all received raises of 10 cents per hour.
It is clear that Walter was in a hurry to get the
evaluations completed and raises granted. Walter credibly
testified to the effect that he was trying to complete the
evaluations and the granting of raises before Skube left for
vacation during the first week of March 1974. On March 5,
1974, Walter sent the payroll information, including the
granted wage increases, to the office that prepared the
payroll and checks the payroll information.
On March 6, 1974, around midday, the Respondent
received a copy of the Union's petition (Case 14-RC-7604)
and a notice, concerning employees rights, which the
NLRB suggested be posted.
On March 7, 1974, Walter received the payroll checks
and thereafter paid the employees for the payroll period
ending on March 5, 1974.3
C. Conduct of Walter
Early March, circa March 6, 1974
1. Walter had a conversation with Vicki Barry in early
March 1974, concerning her job evaluation and raise?
The facts relating to Walter's conversation with Barry
are revealed by the following credited excerpts from
Barry's testimony.
3 I am persuaded that Walter 's testimony on this point is more reliable
than that of Pierson and Willaredt and credit the facts as found. Coleman's
testimony corroborated Walter's on this point.
4 Barry's testimony was to the effect that the conversation with Walter
took place in early March . Walter's testimony was to the effect that when
A. He told me that they thought that I did good
work and I was flexible and they thought that I
deserved a raise . We talked about his family and he
asked me if I had been approached by any union
people and I told him no. He talked against the union.
He said that he had been in places where there was a
union and that patient care was bad and the help
wasn't any good at all. He just talked about that. I can't
remember anything else.
Q. Did he at any point tell you what your raise
was?
A. When I was leaving, I asked him and he told me
that it was a pickle.
Q. Have you now told us everything that you can
remember about that conversation?
A. Yes.
Q. Was there any discussion of union cards?
A. I think so, but I can't remember exactly what
was said.
Q. What was said, if you can remember?
A. He said that somehow the girls had gotten ahold
of union cards from someone. I don't remember.
2. On March 7, 1974, Administrator Walter spoke to
employee Peggy Coleman about her job evaluation and
raise. Prior thereto, on March 6, 1974, Nursing Supervisor
Skube had spoken to Coleman as is revealed by the
following credited excerpts from Coleman's testimony.
A. The day the home received the petition for an
election, Mary Jo told me that I would be getting a
raise. She said she was sorry that she hadn't had time to
do the evaluation, she had been too busy. I asked her
how much a raise I would be getting and she said it
would show it. She said to keep it confidential.
As indicated, on March 7, 1974, Walter spoke to
Coleman as is revealed by the following credited excerpts
from Coleman's testimony.
Q. Who did you talk to?
A. Jerry Walter.
Q. What did he say?
A. I went down to pick up my check and he said
that he wanted to talk to me. I went in his office and he
said he had been doing evaluations and he asked me if
I wanted to see mine. I said yes. He took a sheet of
paper from a filing, cabinet and he went down a long
list of things. He said he was satisfied with my work
and that I would be getting a raise. I asked him how
much of a raise and he said five cents.
The facts are clear that Coleman's paycheck, received on
March 7, 1974, reflected a raise for the payroll period
ending on March 5, 1974.
3. In early March 1974, Administrator Walter spoke to
employee Pierson about her job evaluation and raise as is
talking to some of the employees, he alluded to the suggested NLRB notice
received by him on March 6, 1974. As to the details of the conversation, I
find Barry's testimony to be more complete and objective, and so credit it
over Walter's where in conflict. As to whether such conversation took place
prior to March 6, 1974, 1 find the evidence insufficient to so establish.
1016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
revealed by the following credited excerpts from her
testimony.5
A. Well, I was called into his office at night
because I worked nights, around 12 or 12:30, and he
was telling me that the reason why I was in there I was
being evaluated at the time and he was telling me what
a good job I was doing and he talked about this other
girl that I worked with, Vicky Mack, that if he had
more employees like Vicky Mack and myself that the
nursing home would run just fine. He told me, he
started talking about his family, he asked me about my
family and then he asked me if I had seen a petition
going around the nursing home and then I asked him,
`What sort of a petition?'. He said, `Something from the
union,' and then I commented that I hadn't seen or
heard anything about a union. Then he started telling
me the disadvantages of a union in health care.
Q. What did he say, if you remember?
A. He said that he had been an administrator of 13
nursing homes and either one of them didn't have a
union and they got along quite well and that he was a
nickel and dime man. I think I just smiled at the time.
He said that he would rather give the employees a raise
when he thought that they really needed it than to
spend it put every, three months or every six months.
He said that the union wasn't, he didn't like the union
in health care because the employees wouldn't do their
work right and if they were told to do something which
they were not hired for they wouldn't do it. They would
always throw the union up. But, he told me that I
would be getting a dime raise and I thanked him. He
asked me to bring the other girl, Vicky Mack in, that's
all.
4. On March 7, 1974, Administrator Walter spoke to
employee Willaredt about her job evaluation and a raise.6
Q. Would you tell us, please, what the conversation
was that you had with Mr. Walter?
A. He told me that they had made the evaluations
and that I would be getting a nickel raise and that he
like the way I got along with the patients. Then he
started talking about the union. He asked me if I had
heard about a petition about the union and I told him
no. Then he started talking about what he thought was
the disadvantages of it and from what I can remember
he said, like if I get pregnant and want to come back
after the union was there I would have to-
MR. FRENCH (interrupting): Your Honor, the witness
is speaking too,fast and too low. I can't hear her.
JUDGE STONE: Would you speak slower so that
everybody can hear.
A. He said one disadvantage was that like if I
would get pregnant and I wanted to come back to work
5 On direct examination Pierson placed the timing of the event as on
March 3 or 4, 1974. On cross-examination Pierson placed the timing of the
event as on March 3, 4, or 5, and that she was unsure of the exact date.
Considering this, I find her testimony unreliable to establish that the event
occurred before March 16, 1974, when the Respondent received a suggested
"notice" for posting from the NLRB (in which "notice" reference was made
to the union's representation petition). I credit Pierson's testimony as to the
details as to what was said since I found her testimony more complete and
4
that I would have to pay an initiation fee to join the
union again and he said that like some nursing homes
where he used to work that if the girls wanted to make
a good wage they could as long as they worked at it. He
also said that if there ever came an election he wouldn't
try to persuade me to vote either for it or against it and
if I wanted to I could talk to somebody who belonged
to the union, and then I left.
Q. (By Mr. Dexter) And did you receive the raise
on your paycheck?
A. Yes, I did.
Q. How long was it after Mr. Walter talked to you
that you received the paycheck?
A. That day.
5. The facts clearly reveal that a number of employees
received raises in their paychecks which were given them
on March 7, 1974. The overall facts persuade that such
checks were dated on March 6, 1974, and were for the
payroll period ending on March 5, 1974.
Contentions and Conclusions
1. The General Counsel contends that the Respondent,
by Walter, engaged in unlawful interrogation of employee
union activities or desires in the conversations with
Willaredt, Pierson, and Barry. The Respondent contends
that it did not engage in unlawful interrogation but merely
referred in the conversations with employees to a notice
(referring to the union's petition) which the NLRB had
suggested that it post. The Respondent contends that such
"notice" was received on March 6, 1974, and posted
sometime thereafter.
Considering all of the facts, I am persuaded and
conclude and find that, the Respondent, by Walter,
violated'Section 8(a)(1) of the Act, by questioning Barry as
to whether' she had been approached by any union people.
The evidence reveals no legitimate basis for such inquiry
and revp is no assurances of nonreprisals. Accordingly, it
is conclilded and found that' such questioning as to
employee union activity was done in amanner constituting
interference and restraint, within the meaning of Section
8(a)(1) of the Act, and therefore is violative of Section
8(a)(1) of the Act.
Considering all of the facts, I am persuaded and
conclude and find that the Respondent, by Walter,
violated -Section 8(a)(1) of the Act, by asking Pierson if she
had seen a petition (from the Union) going around the
nursing home, and by asking Willaredt if she had heard
about a petition about the Union. While the Respondent
could refer to the NLRB notice relating to the Union's
representation petition and present its arguments against
the Union, it cannot question employees in a manner to
ascertain their knowledge of employee activity with respect
tq such union representation petition, The ,Respondent's
objective than Walter 's on such points. However, Icredit Walter's testimony
over Pierson's as to the date that she received her payroll check.
6 Willaredt places the time of such conversation as occurring on March
6, 1974. Considering all of the facts relating_ to the timing of the payroll
checks, I find that the event took-'place qn March 7, 1974. As to the details
otherwise, I found Willaredt 's testimony to be more complete and in detail
and credit it over Walter's where in conflict.
COLONIAL HAVEN NURSING HOME, INC.
questions about the union representation petition was not a
limited reference to the "notice" relating to such petition.
No legitimate basis for its broad inquiry and no assurances
of nonreprisals were given. Accordingly, I conclude and
find that the questioning of Willaredt and Pierson as to the
union petition was done in a manner constituting interfer-
ence, restraint, and coercion within the meaning of Section
8(a)(l) of the Act. It is so concluded and found.
2. The General Counsel contends that the Respondent,
by Walter, on or about March 6, 1974, granted employees
wage increases in order to discourage their union activity.
The Respondent contends that the wage increases that
were granted were not given in order to discourage
employee union activity.
Considering all of the facts, I am persuaded and
concllude and find that the facts are insufficient to establish
that the Respondent, by Walter, on or about March 6,
1974, granted wage increases in order to discourage
employee union activity. The facts clearly reveal that prior
to the advent of unionism the Respondent had plans to
evaluate employee job performance and to grant wage
increases where warranted within 3 to 6 months after
employment and prior evaluations. These plans were made
known to most employees at the time of hiring. The job
evaluations and wage increases granted on or about March
6, 1974, were consistent with the above-referred-to plans
and announcements. Although Respondent's officials
spoke to some employees about the Union at the time of
the wage increases, statements made to the employees were
to the effect that the employees had earned and merited
such wage increases . Under such circumstances, the timing
of the wage increases and statements about the Union do
not warrant an inference that the wage increases were
given to discourage unionism. 'The Respondent has a right
to carry out existing plans as to wage increases as long as
such is done without regard to unionism.
The General Counsel contends that the job evaluations
and wage increases were done in haste and in order to
dissuade employee support of the Union. I am persuaded
that the job evaluations and wage increases were done in
haste. I am also persuaded that such haste was because the
Respondent was aware that it was somewhat behind in its
evaluation program because of the shakedown problems in
getting started in its operations, because of change in some
managerial personnel, and because of a desire to complete
the same before Nursing Supervisor Skube went on
vacation during the first week in March 1974. Further, I
am 'persuaded that Walter, a self-described nickel-and-
dime man as regards wages, handled the manner of the
evaluations as he did because he considered it an efficient
way to dispose of the matter in relationship to other
business problems. In the realities of life many business
matters are conducted similarly. The General Counsel's
major thesis of haste for improper reasons may be said to
relate to ' the timing of the job evaluations and wage
increases with the timing of ' the initial advent of unionism
on February 5, 1974, and the filing of the Union's petition
for representation on March 5, 1974. As to the first date of
7 The event concerns a conversation between President Swiatek and an
employee named Gregory. Gregory testified to the effect that the event took
place in February 1974 Swiatek places the event around March 7, ^ 1974.
1017
February 5, 1974, I note that the job evaluations were
made on or around February 26, 1974, and the wage
increases therefrom on or about March 6, 1974. I am
persuaded therefore that the timing of such job evaluations
and wage increases, in connection with the plans an-
nounced prior thereto, does not reveal the job evaluations
and wage increases to have been improper. Further, as to
the timing of, such job evaluations and wage increases as
compared to the timing of the Union's representation
petition filed on March 5, 1974, I note that the facts reveal
that Respondent's first knowledge of such petition oc-
curred on March 6, 1974, after the job evaluations and
wage increases had been determined. Thus, the timing of
the Union's representation petition had no bearing on the
job evaluations and wage increases granted. Accordingly, it
is concluded and found that the facts do not reveal that the
Respondent granted wage increases on or about March 6,
1974, to discourage employee union activity.
3. The General Counsel contends that the Respondent,
by Walter, on or about March 6, 1974, impliedly promised
employees wage increases if they would abandon the
Union. The Respondent denies that Walter impliedly
promised employees wage increases on or about March 6,
1974.'
Considering all of the facts, I am persuaded, and
conclude and find that the facts are insufficient to reveal
that the Respondent, by Walter, on or about March 6,
1974, impliedly promised employees wage increases if they
would abandon the Union. Thus, the facts reveal that the
Respondent had plans, prior to the advent of unionism, to
make job performance evaluations and to grant wage
increases where appropriate. Most, if not all, of Respon-
dent's employees were aware of Respondent's plans for job
evaluations and wage increases . As indicated previously, it
has been found that the wage increases granted on or
about March 6, 1974, were not done to discourage union
activity. A careful examination of the statements made to
employees reveal that the employees were told that they
had earned and merited their wage increases . As indicated
previously, the granting of wage increases consistent with
policy, announced prior to the advent of unionism, does
not warrant the implication because of timing that the
wage increases were granted to discourage unionism. Nor
does it warrant an implication that the granting of wage
increases constitutes a promise of wage increases if the
employees abandon the Union. Accordingly, it will be
recommended that the allegation of unlawful conduct in
such regard be dismissed.
D. Conduct of Swiatek circa March 7, 19747
The facts reveal that President Swiatek has known
employee Gregory for some time and that the relationship
was friendly and proper. Gregory commenced working for
the Respondent on December 26, 1974, and was consid-
ered a good and conscientious employee.
Around March 1, 1974, Gregory had to enter a local
hospital. While in the hospital, on March 7, 1974, President
There is little dispute as to the actual facts. I am persuaded that Swiatek's
timing of the events is more reliable than Gregory's and place the event as
occurring on March 7, 1974.
1018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Swiatek visited the hospital. What occurred is revealed by
the following excerpts from Gregory's testimony.8
A. To the best of my recollection, he walked in the
room. He asked me how I was doing. I said I was doing
fine. He walked over and handed me a box of candy
and presented me with a check and said it was for
appreciation causes, that I was a good worker,
everyone missed me. Then he asked me if the union
had bothered me.
Q. What did you say?
A. I said no.
Q. What did he say then?
A. To the best of my recollection, I believe he said
O.K., fine, because there was something about a union
going on.
Considering the foregoing, the facts reveal no legitimate
basis for the questioning of Gregory about the Union, no
assurance of nonreprisal were given, and, accordingly, such
questioning was done in a manner constituting interfer-
ence, restraint, and coercion within the meaning of Section
8(a)(1) of the Act, and therefore such conduct is violative
of Section 8(a)(1) of the Act. It is so concluded and found.
E. Conduct of Swiatek Late March 1974
In late March 1974, President Swiatek had another
conversation with Gregory about the Union. Such conver-
sation is revealed by the following credited excerpts from
Gregory's testimony.
Q. And who did you talk to?
A. Mr. Swiatek.
Q. What did he say to you?
A. He said he believed that we were pretty good
friends and that, he said also that if I heard anything
about the union I was to let him know. He also stated
something about a lot of us could not keep up with the
union dues anyway.
Q. Is that all you can remember that he said?
A. Right now that is all I can remember.
Q. What did you say to him?
A. I said yes, we were good friends.
Considering the foregoing, I am persuaded and conclude
and fmd that the Respondent, by President Swiatek, as
alleged, engaged in conduct violative of Section 8(a)(1) of
the Act by requesting an employee to engage in surveil-
lance of other employees' union activity. Such conduct is
violative of Section 8(a)(1) of the Act. It is so concluded
and found.
F. Alleged Conduct of Swiatek circa April 11, 1974
The General Counsel alleges , and the Respondent
denies , that "on or about April 11, 1974, President Swiatek
interrogated an employee concerning the union activities
of said employee and others."
The General Counsel's witness to this alleged event was
Gregory. Gregory's testimony to this alleged event is
revealed by the following excerpts from her testimony.
Q. Now, between the time you went back to work
until the strike, did you have any other conversations
with Mr. Swiatek?
A. I did.
Q. How many did you have?
A. Two.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
When was the first one?
I believe it was in April.
Do you recall the day?
I do not.
How long before the strike was it?
Maybe a week, maybe two weeks. I don'''t know.
And where did the conversation take place?
In the hallway.
And who else was present?
I saw no one.
Q. What time of the day was it?
A. It was in the late afternoon.
Q. And what was the conversation?
A. He asked how I was doing and I said fine. He
mentioned the union and I had just tried to walk away
from it.
Q. What did he say about the union?
A. I believe he asked if I had heard anything.
Q. What did you tell him?
A. No.
Swiatek testified to the effect that this event did not
occur, that he was away from the area at the time.
Considering all of the above and the demeanor of the
witnesses, I found Gregory to appear unsure and hesitant
in her testimony, and her testimony did not have the ring
of truth as to this alleged event. I credit Swiatek's denial of
the event and discredit Gregory's testimony as to such
alleged event. Accordingly, it will be recommended that
the allegation of unlawful conduct thereto be dismissed.
G. Conduct of Hotson circa April 18, 1974
Employee Lieneman was hired on November 27, 1974.
At such time she was told by Administrator Pope that,
depending on the work she was doing, if she were doing her
job well, she would be considered for a raise.
About a week before April 27, 1974, Administrator-in-
Training Hotson told Lieneman that he appreciated the job
she was doing (in the laundry), she was a good worker, and
she was receiving a 20-cent raise. Hotson did not mention
the Union in the conversation.
Considering the foregoing and all of the facts, I fmd that
the evidence is insufficient to establish, as alleged, that
Hotson, on or about April 18, 1974, informed an employee
of a wage increase granted by the Respondent in order to
discourage employee union activity. Accordingly, it will be
recommended that the allegation of unlawful conduct in
such regard be dismissed.
s Swiatek's testimony was essentially to the same effect. It was made alleged. The General Counsel has not alleged that the extra , pay or sickpay
clear to the parties that the issues in this proceeding were those formally given by Respondent was violative of the Act.
COLONIAL HAVEN NURSING HOME, INC. 1019
H. Conduct of Walter circa April 24, 1974
Administrator Walter spoke to employee Lieneman on
or about April 24, 1974, concerning the wearing of a union
button, the Union, and sick leave. The facts are revealed
by the following credited excerpts from Lieneman's and
Walter's testimony.
Q. (By Mr. Dexter) And where was the discussion
you had with Mr. Walter?
A. It was in the laundry room.
Q. Who else was present?
A. No one.
Q. Would you tell us what he said and what you
said, please?
A. He asked me if Archer had talked to me about
rr y raise and I said, `Yes.' He said that they did
appreciate the job I was doing and that I did my job
well and he asked me why we wanted a union in the
home. I said, for sick benefits for one thing and he said,
`Well, we pay some sick benefits,' and he said that they
gave Charolette Gregory $100 when she was out sick
and that they gave Betty Gasparovic when she was out,
how much he didn't say, and took off a week when her
little boy was in the hospital and he said, `I believe we
gave money to you,' and I told him, `No, they didn't.'
Q. What else was said?
A. Then he gave me an illustration about an
employee, her name was Mae, I can't remember her
last name, but she worked in the kitchen for a while
and then they transferred her to the laundry and was
then transferred to housekeeping and she didn't do the
work very well. He said that if we had a worker like her
and a worker like me in the laundry that I would be
doing all the work and she would be doing nothing and
they anticipated that I would quit and they would have
her and maybe get another one like her and they
wouldn't be able to fire her because of the union.
Q. Is that all the conversation you now remember?
A. Yes.
Q. Was there any discussion of union buttons?
A. On the morning of-
MR. FRENCH (interrupting): I'm going to object to
this. There is no allegation in the case and that is
immaterial and irrelevant at this stage.
JUDGE SToNE : Overruled.
THE WrrNEss: The morning of the 25th, I believe it
was a Friday,, before we went on strike on Saturday,
Mr. Walter met me in the hallway of the nursing home
and I was wearing a union button and he asked me to
take off the button because it wasn 't part of my
uniform.
Excerpts from Walter's Testimony9
Q. (By Mr. Dexter) Mr. Walter, did you talk with
any employee individually?
A. Yes, I did.
Q. About a union notice, a notice referring to the
union or the union button, and I don't mean the simple
demand, take it off. I mean beyond that.
9 Walter also credibly testified to the effect that the Respondent had a
discretionary sick leave policy.
A. Yes, I asked people if they had seen the notice. I
make rounds throughout the home and I converse with
the employees as I go through . I remember talking with
employees relative to having seen the notice, yes.
Q. You talked to them relative to, other than to
take them off?
A. One that I can remember, Vicky Barry chal-
lenged me that she had the right to put the button on
because she was on her lunch hour but she challenged
me relative to that and I told her that if she was on her
time, fine, but when she came back from her lunch
hour I would ask that she remove it from her uniform.
Q. Did you have any discussion with the other
employees regarding this union button?
A. Yes, there was one young lady who I told that I
was surprised that she had one on.
Q. Who was that young lady?
A. Janice Lienemann.
Q. Would you tell us what the conversation was?
A. I told her that I was surprised that she had a
union button on.
Q. What did she say?
A. She said, `Everybody else is wearing them,' so
she was too.
Q. And what did you say then?
A. What else could I say?
Q. I don't know, what did you say?
A. I don't recall saying anything other than that.
Q. Did you tell her why you were surprised?
A. No, I made a statement that I was surprised that
she was wearing a union button.
Considering all of the foregoing, the fact that no
legitimate purpose was shown for interrogation of an
employee about union activity or desires , the fact that
assurances of nonreprisals were not given , I am persuaded
and conclude and find that the Respondent, by Walter,
interrogated an employee about union activities or desires
in a manner constituting interference , restraint, and
coercion within the meaning of Section 8(a)(1) of the Act,
and by such conduct violated Section 8(a)(1) of the Act.
Considering all of the foregoing , I am persuaded and
conclude and find that the evidence is insufficient to reveal
that the Respondent, by Walter, impliedly promised an
employee sickpay in order to discourage employee union
activity. The facts reveal that the Respondent has a
discretionary sick leave policy and has paid some employ-
ees for sick leave . Thus, the Respondent has paid Gregory
and Gasparovic for sick leave . Although much evidence
was adduced with respect to sick leave pay to Gregory, the
General Counsel did not allege such sick leave pay to
constitute violative conduct . For such evidence to have real
meaning , the General Counsel would have had to litigate
and establish it to have been violative . Considering all of
this , the facts reveal • that Respondent was merely arguing
its good points relating to sick leave pay as argument
against the reason an employee should want a union.
Accordingly, the allegation of unlawful conduct relating to
promises of sick leave pay will be recommended to be
dismissed.
1020 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Considering all of the foregoing, I am persuaded and
conclude and find that the evidence, relating to Adminis-
trator Walter's statement to Lieneman to the effect that he
was surprised that she had a union button on, is
insufficient to reveal that it constituted conduct violative of
Section 8(a)(1) of the Act. The questioning of Walter by
the General Counsel and Walter's answers indicate that the
Respondent had a notice relating to the wearing of union
buttons. Statements by counsel reveal that the General
Counsel had refused to issue complaint concerning
Respondent's requirement that employees not wear union
buttons. Under all the circumstances, the evidence is not of
sufficient probative clarity to reveal that Walter's remarks
were other than surprise at an employee's wearing a union
button contrary to Respondent's rules. Accordingly, the
allegation of unlawful conduct by Walter's remarks
concerning surprise at Lieneman's wearing of a union
button shall be recommended to be dismissed.
I. Conduct of Walter circa April 27, 1974
On or about April 23, 1974, employee Pierson, a nurses
aide, was placed in charge of a wing of the nursing home. It
appears that the employee, Geisler, who had previously
performed such duties had quit or resigned. Thereafter, on
or about April 27, 1974, Administrator Walter told Pierson
in effect that she would receive a raise of 25 cents per hour
for "being in charge."
Considering all of the foregoing and all of the facts, it is
clear that the evidence is insufficient to reveal that the 25-
cent raise was given in order to discourage said employee's
union activities . Accordingly, it will be recommended that
the allegation of unlawful conduct in such regard be
dismissed.
J. Conduct of Swiatek circa April 27, 1974
As indicated in more detail later herein, many of
Respondent's employees went out on strike on April 27,
1974, and remained on strike until around May 31, 1974.
On April 27 and 28, 1974, President Swiatek took
pictures from time to time of the employees who were
picketing and of picket signs on the picket line established
in front of Respondent's facility. Such pictures were taken
with a Polaroid and an Instamatic camera. Swiatek also
attempted to take pictures on such occasions with a movie
camera, which was inoperative.
The activities of Swiatek with respect to picture taking
and attempted picture taking were accomplished in such a
manner as to be readily seen and were observed by striking
employees.
Swiatek testified to the effect that he engaged in his
picture taking and attempted picture taking activity on
advice of counsel. No evidence was given as to the advice
of counsel otherwise or the motivation therefor.
As found later herein, the strike that occurred from April
27 to May 31, 1974, had an unlawful purpose and was not
a strike caused by unfair labor practices.
10 The General Counsel argues in his brief in effect that the Union's first
knowledge of unfair labor practices occurred around April 24, 1974.
Potterton at one point in his testimony testified to the effect that on March
5, 1974, he became aware of potential unfair labor practices . A trial ruling at
Considering the foregoing, the facts relating to Swiatek's
picture taking during the first several days of the strike do
not reveal conduct violative of Section 8(a)(1) of the Act.
The striking activity of the employees, as indicated later
herein, constituted unprotected activity. It follows, there-
fore, that the taking of pictures or purported taking of
pictures of the strikers does not constitute conduct
violative of Section 8(a)(1) of the Act.
K. The Strike
The NLRB representation petition filed by the Union on
March 5, 1974, in Case 14-RC-7604, was dismissed by the
Regional Director's decision and order dated April 23,
1974. The basis for the dismissal essentially was because
the Regional Director found that the current complement
of bargaining unit employees was not representative in that
the Respondent planned more job classifications and a
larger number of employees.
The Union received the above-referred-to Regional
Director's decision and order on April 24, 1974. Thereafter
the Union held meetings with employees on April 24 and
25, 1974. At the meeting on April 24, 1974, Union Official
Potterton told the employees about the Regional Director's
decision and order dismissing the representation petition.
Potterton told the employees that the Union and the
employees had "gotten ripped off' by the Respondent, that
the Respondent had committed many unfair labor prac-
tices, and discussed various courses of action that could be
taken. Potterton told the employees in effect that the
Regional Director's decision and order could be appealed,
that a new petition could be filed, or that the employees
could go on strike, and that unfair labor practice charges
could be filed. Potterton told the employees that he
thought that a strike could result in some recourse, obtain
an election and cause the Company to cease engaging in
unfair labor practices. At the meeting on April 24, 1974,
Potterton also sought information from the employees as to
potential unfair labor practices.io
As is often the case, many of the details were presented
in fragmented fashion. Thus, Potterton testified credibly to
the effect that if a new petition were filed, it could take
from 6 months to a year before they could find out
anything about the petition. Although Potterton did not
testify to the time delay that would be involved in an
appeal from the Regional Director's Decision and Order
dismissing the representation petition, the overall tenor of
his testimony and the events persuade that the employees
were advised of some time delay thereto.
Potterton, and most of the General Counsel' s witnesses
who testified as to the union meetings, testified to the effect
that the recourse sought was cessation of unfair labor
practices and the securing of an election. Pierson testified
to the effect, and I credit such testimony, that Potterton
alluded to securing recognition from the Respondent. The
totality of the facts, including a union press release and
bulletin, and employee signs used in picketing, reveals that
the employees and union sought to secure recognition of
that point stopped further examination on this point. Later, however, the
General Counsel was advised that he could question Potterton and others
on such issue . The General Counsel elected not to do so further.
COLONIAL HAVEN NURSING HOME, INC. 1021
the Union by the Respondent. Considering all of such
facts, as indicated, I credit Pierson's testimony as indicat-
ed.
I note that the letters and communications from the
Union to the Respondent were carefully worded and
referred to recognition of employee rights and to the use of
the Federal Mediation and Conciliation Service. Such
communications did not spell out that the Union was
seeking voluntary recognition. The overall facts, however,
make it clear that the language used was intended to
convey such message.
At a meeting on April 25, 1974, Potterton told the
employees that they would have to vote as to whether to
strike to put pressure on the employer. Potterton read a
draft letter to the Respondent which he proposed to give
the Respondent with copy of an unfair labor practice
charge. The message in such letter was to the effect that the
Respondent had engaged in unfair labor practices, the
Respondent had refused to recognize the rights of
employees , and, unless action in good faith were taken to
settle the charge by Saturday, April 27, 1974, at 6:30 a.m.,
a strike would ensue.
Potterton at a meeting on April 25 discussed with the
employees the mechanics of a strike, read the proposed
unfair labor practice charge and proposed letter to the
company, answered questions as to whether striking
employees could be replaced, and told employees that
unfair labor practice strikers could not be replaced.
Employees were given ballots to mark as to whether they
wished to strike or not.
Potterton, at another meeting on April 25, 1974,
apparently conducted a meeting similar to the first meeting
on April 25, 1974. What occurred is essentially revealed by
the following credited excerpt from Potterton's testimony.
A. Approximately seven o'clock that evening, the
25th.
Q. Would. you tell us, please , what you said at that
meeting?
A. I told the employees that I was glad to see such
a large turnout and it meant to me that there was strong
support behind the strike. I read to them the letter that
I was to deliver to the company the next day. Then, I
said that I had a plan, but I would need their approval
before we carried it out. The plan would be that I
would ' deliver this letter along with the unfair labor
practice charges, if they gave me the o.k., and if we did
not hear anything from the company by 6:30 o'clock
on the 27th, we would carry out a threat as stated in the
letter to strike. I then asked everybody to bring up all
the questions that they had about this and I did my best
to answer the questions . I then said about the list of
other nursing homes that we would provide to relatives,
I asked where certain people were who weren't at the
meeting that I knew were employees, and I passed
around ballots and asked the employees to vote
whether they wanted to carry out the plan I had
outlined.
It is clear that the employees approved Potterton's
proposed course of action.
On April 25, 1974, Potterton, for the Union, filed charges
of 8(a)( 1) violations against the Respondent with the
NLRB Regional Office in Case 14-CA-7906. On April 26,
1974, Potterton delivered a letter and a copy of the above-
referred-to unfair labor practice charges to the Respon-
dent.
The details of the April 26, 1974, letter are as herein set
out:
April 26, 1974
Mr. Robert Swiatek, President
Colonial Haven Nursing Home Inc.
3900 Stearns
Granite City, Illinois 62040
Dear Mr. Swiatek:
Colonial Haven Nursing Home has engaged in a series
of unfair labor practices and has repeatedly refused to
recognize the rights of its employees.
Unless an action in good faith is taken to settle these
charges by Saturday, April 27 at 6:30 A.M., an
authorized picket line will be established at that time. If
you do not intend to alter your position, please make
arrangements to move the home's patients so that they
will not suffer any undue hardships.
I am available to meet and discuss this situation with
you at your convenience.
Yours truly,
/s/ Jim Potterton
Jim Potterton
Field Representative
The Respondent made no response to the Union's letter
of April 26, 1974. On April 27, 1974, at 6:30 a.m., a strike
by certain of Respondent's employees commenced and
continued to May 31, 1974, at 1 p.m. It is clear that the
Union conducted and directed said strike. The number of
employees who initially participated in the strike was
around 37. Cheryl Davis was hired by the Respondent
during the strike and told to report to work on a stated day.
Instead, Davis joined the strike. At the end of the strike
there were 34 employees , including Davis, who had
commenced striking activity and who had not returned to
work at the Respondent.
On May 2, 1974, the Union transmitted a letter to the
following effect to the Respondent.
May 2, 1974.
Mr. Robert Swiatek, President
Colonial Haven Nursing Home, Inc.,
3900 Steams Avenue
Granite City, Illinois 62040
1022 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dear Mr. Swiatek:
In the spirit of trying to arrive at an amicable
settlement of our dispute, I am inviting you to join with
me in requesting the assistance of the Federal Media-
tion and Conciliation Service.
,I hope that your concern for a peaceful resolution of
our Labor dispute will prompt you to join with me in
this request.
Very truly yours,
JP:mb
opeiu # 13
/s/ James Potterton
James Potterton
Field Representative
Local 50
cc - Director
Federal Mediation & Conciliation Service
During the strike the Union had employees to carry
picket signs on the picket lines . These signs did not allude
to a "recognition" purpose. Some employees nearby,
however, on occasion carried picket signs referring to a
"recognition" purpose of the strike. A union bulletin also
referred to a "recognition" purpose of the strike. Such
bulletin contained in part the following language.
Second, our employer has refused to recognize Service
Employees Union, Local #50, _AFL-CIO as our
collective bargaining agent even though a majority of
us have signed application cards requesting such
representation.
On May 31, 1974, the Union sent a letter to the following
effect to the Respondent:
May 31, 1974
Mr. Robert Swiatek, President
Colonial Haven Nursing Home
3900 Stearns
Granite City, Illinois 62040
Dear Mr. Swiatek:
We represent striking employees of Colonial Haven
Nursing Home. This is to advise you that these
employees are herewith unconditionally offering to
return to work.
We have notified employees on strike to report to work
at their regular'starting times on Monday, June 3, 1974.
Sincerely,
/s/ Jim Potterton
1 1 The details of which employees did and did not contact the
Respondent for reinstatement are not in dispute. Because of the findings in
this case that the strike was for an unlawful purpose, I do not find it
necessary to set forth the details as to who did or did not contact the
Respondent for reinstatement . The Union's letter concerning the offer to
return to work alludes to its notification of employees to return to work.
Jim Potterton,
Field Representative
Thereafter a large number of employees appeared in
person or telephoned the Respondent' s agents concerning
going back to work. Such employees were told that they
had been replaced and that they would have to make new
applications for jobs. There was a small number of
employees who did not contact the Respondent for
reinstatement after the strike."
Contentions and Conclusions
The General Counsel contends that the strike from April
27 to May 31, 1974, was an unfair labor practice strike, that
therefore the Respondent could not lawfully replace such
employees, and that the failure of the Respondent to put
such employees back to work upon their unconditional
offer to return to work violated Section 8(a)(3) and (1) of
the Act. The Respondent contends in effect that the strike
was for an unlawful purpose, that the employees had been
replaced, and that it had no obligation to put the
employees back to work.
The General Counsel asserts in effect that the issue is a
factual issue as to whether the strike was an unfair labor
practice strike or was for an unlawful purpose.
Considering all of the facts, I am persuaded that the
strike was not an unfair labor practice strike, and'that the
overriding reason for the strike was for an unlawful
purpose - the obtaining of recognition by the Union as an
exclusive collective-bargaining agent in a bargaining unit
which the Regional Director had determined to be a
nonrepresentative complement. The unfair labor practices
are not the type reasonably to be expected to cause a union
or employees to seek the self-help use of a strike for
correction. Thus, the unfair labor practices reveal only a
few instances of unlawful interrogation of employees as to
their or others' union activities or sympathies, and an
instance of requesting an employee to report on union
activity of other employees. The overwhelming weight of
the facts reveals that the Union and employees were
motivated in having a strike as a means of putting pressure
on the Respondent to immediately and voluntarily recog-
nize the Union as bargaining agent rather than waiting
until the proper time for an election or recognition.
Further, even if the Union were seeking to force an
election, it was seeking to force an election (representation)
at a time that such election would be improper.
It is thus clear that the strike was for an unlawful
purpose, that the employees' striking activity was not
protected, and that the Respondent had no obligation to
Considering this, the letter and subsequent action of employees reveal the
offer to return to work to be on behalf of the employees who later contacted
the Respondent for reinstatement and not on behalf of the other employees
who had originally gone out on strike but who did not contact the
Respondent after the strike.
COLONIAL HAVEN NURSING HOME , INC. 1023
reinstate them either on the basis of rights as unfair labor
strikers or even as economic strikers.12
Accordingly, it is concluded and found that the Respon-
dent's failure to reinstate the striking employees upon their
unconditional offer to work, on May 31, 1974, and
thereafter, does not constitute conduct violative of Section
8(a)(3) and (1) of the Act. It is so found and concluded.'3
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the Respondent's
operation described in section I, above , have a close,
intimate, and substantial relationship to trade , traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices, it will be recommended that Respondent
12 The Respondent's action in telling the employees that they were
replaced and that they had to make new applications for employment is
tantamount to a message of discharge. Since the employee strike activity
was unprotected , there is no violation of the Act by such action.
cease and desist therefrom and take certain affirmative
action to effectuate the policies of the Act.
Upon the basis of the above findings of fact and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Colonial Haven Nursing Home, Inc., the Respon-
dent, is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Service and Hospital Employees Union, Local No.
50 of Service Employees International Union, AFL-CIO-
CLC, is a labor organization within the meaning of Section
2(5) of the Act.
3. By interfering with, restraining, and coercing its
employees in the exercise of rights guaranteed in Section 7
of the Act, the Respondent engaged in unfair labor
practices proscribed by Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
13 See ABC Prestress & Concrete, 201 NLRB 820 (1973), and Local 707,
Highway and Local Motor Freight Drivers, Dockmen and Helpers Teamsters
(Claremont Polychenucal Corporation), 196 NLRB 613 (1972).