New Fairview Hall Convalescent Home

National Labor Relations Board - Board Decisions

Oct 30, 1973

206 N.L.R.B. 688 (N.L.R.B. 1973)

688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Daniel A. Donovan , Charles Brennick and John Bren-
nick, Co-Partners doing business under the trade
name and style of Daniel A. Donovan d /b/a/ New
Fairview Hall Convalescent Home and Local 1199,
Drug and Hospital Union A/W National Union of
Hospital and Nursing Home Employees , Retail,
Wholesale and Department Store Union A/W AFL-
CIO. Cases 1-CA-7643, 1-CA-7837, and 1-
CA-7903
October 30, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND PENELLO
On February 20, 1973, Administrative Law Judge
Frank H. Itkin issued the attached Decision in this
proceeding. Thereafter, the General Counsel, Charg-
ing Party, and Respondent filed exceptions and sup-
porting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge, except
as modified herein.
We agree with each of the Administrative Law
Judge's findings relative to Section 8(a)(1) of the Act
as detailed by him. In addition, we find that
Respondent's promise of a pay increase to employee
Stopka during Shepard's unlawful interrogation of
her constituted an additional violation of Section
8(a)(1) of the Act.
We also agree with the Administrative Law Judge's
findings, for the reasons stated by him, that Respon-
dent did not violate Section 8(a)(3) and (1) of the Act
by suspending and thereafter discharging employee
Tierney, and that the strike which was triggered by
this discharge was therefore an economic strike. We
further agree with the Administrative Law Judge, for
the reasons stated by him, that Respondent did not
violate Section 8(a)(3) and (1) of the Act by refusing
to reinstate strikers Dean, Betzner, Fazzino, and Lin-
da Alger on account of their strike misconduct.
Contrary to the Administrative Law Judge, howev-
er, we find that Respondent's refusal to reinstate strik-
ers Adorno and Izzo violated Section 8(a)(3) and (1)
of the Act. Adorno's alleged strike misconduct con-
sisted merely of being present with other strikers and
union agents at the home of nonstriker Armstrong
when Armstrong was threatened by some of the other
strikers. Izzo's alleged misconduct consisted of put-
ting her head inside nonstriker Armstrong's automo-
bile and threatening Armstrong when she crossed the
picket line. Such conduct, viewed in the context of a
lengthy strike and a heated organizing campaign, is
not of such a serious character as to render Adorno
and Izzo unfit for reinstatement .2
We agree with the Administrative Law Judge, for
the reasons stated by him, that Respondent violated
Section 8(a)(3) and (1) of the Act by failing and refus-
ing immediately to reinstate the 18 strikers named in
Conclusion of Law 4 and thereafter delaying rein-
statement or failing to offer timely reinstatement to
these 18 strikers and employee Bernard when vacan-
cies arose. It is well settled that economic strikers are
entitled, upon application, to immediate reinstate-
ment to their former or substantially equivalent posi-
tions of employment unless such positions have been
permanently filled or eliminated or are unavailable?
In addition, an employer is obligated to accord eco-
nomic strikers preferential status and immediately to
reinstate such strikers when their previous or substan-
tially equivalent positions are available 4 Therefore,
we also agree with the Administrative Law Judge's
finding, for the reasons stated by him, that Respon-
dent violated Section 8(a)(3) and (1) of the Act by
failing to reinstate employee Gargiulo to her former
or substantially equivalent job, assigning her instead
to a more onerous job, and eventually discharging her
because she had engaged in protected activities. In
addition, we hereby correct the Administrative Law
Judge's apparently inadvertent failure to find that Re-
spondent also violated Section 8(a)(3) and (1) of the
Act by denying full reinstatement to employees Bren-
da Alger and Deborah Alger. The evidence estab-
lishes that these employees worked 2 days per week
prior to the strike, but were offered reinstatement and
were reinstated to 1-day-per-week jobs after the
strike. Such reinstatement does not constitute "full
reinstatement" under the criteria discussed above.
The Administrative Law Judge found, and we
i The General Counsel, Charging Party, and Respondent have excepted to
certain credibility findings made by the Administrative Law Judge It is the
Board's established policy not to overrule 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, enfd. 188 F.2d 362 (CA.
3; r951). We have carefully examined the record and find no basis for
reversing his findings.
2 McGwier Co., Inc, 204 NLRB No 87; Terry Coach Industries, Inc., 166
NLRB 560, enfd 411 F 2d 612 (C A. 9). -
3 N L R.B. v. MacKay Radio and Telegraph Co., 304 U.S. 33; N L R.B v
Fleetwood Trailer Co, Inc., 389 U.S. 375
4 N.L R B. v. Fleetwood Trailer Co, supra, N L. R B. v. Great Dane Trailers,
366 U S. 26; Laidlaw Corp, 171 NLRB 1366, enfd. 414 F.2d 99 (CA. 7), cert.
denied 397 U.S. 920.
206 NLRB No. 108
NEW FAIRVIEW HALL CONVALESCENT HOME , 689
agree, that the Union had valid authorization cards
from a majority of Respondent's employees in an ap-
propriate unit at all times relevant herein, that Re-
spondent rejected the Union's demands for
recognition and, instead, as found above, engaged in
pervasive and extensive acts of coercion, restraint,
and interference with employee rights intended to un-
dermine the employees' support of the Union. How-
ever, he inadvertently failed to find that Respondent
thereby violated Section 8(a)(5) of the Act. Based on
the facts as found by the Administrative Law Judge,
we find that Respondent's refusal to recognize and
bargain with the Union in the circumstances here vio-
lated Section 8(a)(5) and (1) of the Act .5
The Administrative Law Judge further concluded
that a bargaining order was inappropriate because of
the Union's strike misconduct. We do not agree. The
alleged strike misconduct involved only a handful of
the striking employees and, except for three instances
of mass picketing and a threat of like conduct in the
future made in August 1971, was confined to the early
weeks of the strike. The alleged misconduct consisted
of some threats and name calling directed at nonstrik-
ing employees, two instances of car following, two or
three instances of hitting nonstrikers' cars with fists
and pebbles or pieces of gravel as they passed through
the picket line, unsuccessful attempts to block en-
trance to the Respondent's premises, one instance of
property damage inflicted by striker throwing a bottle
on the windshield of a nonstriker's automobile, and
one instance of attempted forcible entry which was
successfully blocked by Respondent with the help of
police. There were no physical assaults upon employ-
ees or supervisory personnel, and only one incident of
actual property damage. The nonstriking, employees
continued to report to work and were able to enter
Respondent's premises without harm.
We do not condone any picket line violence, and
the processes of this Board are available to prevent its
recurrence, as is evidenced by the 8(b)- proceeding
herein. But we also are reluctant to deprive a-substan-
tial group of employees of the benefits of collective
bargaining because of the misconduct of a few mis-
creants. Here, looked at in perspective, there were but
few instances of misconduct by a relatively small pro-
portion of strikers, which occurred only sporadically
in the context of a 4-month long strike and against a
background of Respondent's frequent and recurring
unfair labor practices. Viewed in that light, while rec-
5 N.L KB. v. Gissel Packing Co., 395 U.S. 575 ( 1969). While Chairman
Miller agrees that a bargaining order is an appropriate remedial order herein,
he would, for the reasons stated in his separate concurrence in United Packing
Company of Iowa, Inc., 187 NLRB 878, predicate this remedy solely on the
extensive 8(a)(1) and (3) violations found herein. He sees no need for, and
does not join in, the legal fiction of a separate 8(a)(1) and (5) finding to
support such a remedial order.
ognizing that the matter is not altogether free from
doubt, we have concluded that the extraordinary
sanction of withholding an otherwise appropriate
remedial bargaining order would not best effectuate
the policies of the Act 6
As to the propriety of a remedial bargaining order,
we find that Respondent's pervasive unlawful con-
duct tended to undermine and destroy the Union's
majority support and.was of such a severe nature as
to make a fair election doubtful, if not impossible.' In
these circumstances, to deny the employees the rights
normally attendant upon the designation of a bar-
gaining agent by a majority of their number, knowing
that a prompt and fair means of freely determining
majority status has been effectively foreclosed by
Respondent's unlawful acts, would leave this work
force without any effective means of exercising its
rights under our Act and would reward Respondent
for its own wrongdoing. Therefore, we shall order
Respondent to- bargain collectively, upon request,
with the Union as the exclusive representative of the
employees in the unit described below, which we find
of be appropriate.
Based on the foregoing and the entire record herein,
we make the following:
ADDITIONAL CONCLUSIONS OF LAW 8
1. Respondent interfered with, restrained, and
coerced its employees in the exercise of the rights
guaranteed them in Section 7 of the Act and thereby
committed unfair labor practices in violation of Sec-
tion 8(a)(1) of the Act by telling employees to report
to management if and when they were asked to sign
a union card; by asking employees to report their
union activities and the union activities of other em-
ployees to management; by soliciting employees to
abandon the union; and by threatening employees
that management would lock its doors, before a strike
would occur.
2. Respondent discriminated with respect to the
hire and tenure of employment of its employees and
violated Section 8(a)(3) and (1) of the Act by refusing
6 Quintree Distributors, Inc, 198 NLRB No 69; Cascade Corporation, 192
NLRB 533.
r Cf. World Carpets of New York, Inc, 188 NLRB 122, enforcement denied
463 F.2d 57 (C.A. 2). Inhis dissent in World Carpets, Chairman Miller found
that a fair election was possible because the effects of the employer's unfair
labor practices , which consisted chiefly of a threat to move its plant , had been
dissipated . However, in the instant case, the effects of Respondent's discrimi-
natory discharges , its failure promptly to reinstate strikers , its parade of
8(a)(1) violations , and its unlawful grant of bonuses have, in his view- so
indelibly imprinted in its employees ' consciousness both the fear of retailia-
tion against legitimate concerted activity and the available rewards for re-
fraining therefrom that no free election can be held here.
8 The General Counsel has excepted to the Administrative Law Judge's
apparently inadvertent failure to include in his Conclusions of Law certain
of the 8(a)(1) violations found by him . We find mint in this exception and
hereby add the omitted conclusions.
690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to reinstate strikers Adorno and Izzo because of their
alleged strike misconduct; and, further, by assigning
reinstated strikers Brenda Alger and Deborah Alger
to less hours of employment than they had before the
strike.
3. Respondent engaged in unfair labor practices in
violation-of Section 8(a)(5) and (1) of the Act by refus-
ing on or about March 1, 1972, and at all times there-
after, to recognize and bargain with the Charging
Party in the following appropriate unit:
All full-time and regular part-time service and
maintenance employees employed by Respon-
dent at its Clifton Street, New Haven, Connecti-
cut facility, including nurses' aides, kitchen
employees, cooks, maintenance employees,
housekeeping employees, and laundry employ-
ees; exclusive of all office clerical employees,
professional employees, licensed practical nurs-
es, registered nurses, physical therapist, social
workers, social service director, in-service direc-
tor, charge nurse, shift supervisors, activities' di-
rector, guards and all other supervisors as
defined in the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that Respondent, Daniel A.
Donovan, Charles Brennick and John Brennick, co-
partners doing business under the trade name and
style of Daniel A. Donovan d/b/a New Fairview Hall
Convalescent Home, New Haven, Connecticut, its
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating employees concerning
their union activities and the union activities of their
coworkers.
(b) Threatening employees that it will lock its
doors before allowing a strike to occur.
(c) Threatening employees with loss of their jobs,
loss of their lunch and break periods, loss of their
benefits and other reprisals if they choose the Union,
Local 1199, Drug and Hospital Union A/W National
Union of Hospital and Nursing Home Employees,
Retail, Wholesale and Department Store Union,
A/W AFL-CIO, or any other labor organization, as
their bargaining representative.
(d) Telling employees that it is unlawful for them
to engage in any strike or any protected concerted
activities.
(e) Telling employees that they should have come
to management before going to the above Union and
that management could get the employees a union.
(f) Telling an employee that she would not get a
pay raise to which she was otherwise entitled while the
employees were engaged in union activities and with-
holding the employee's pay raise for,this reason.
(g) Telling an employee that the employees cannot
have the above Union or any other labor organization
as their collective-bargaining representative.
(h) Telling employees to report to management if
and when they are asked to sign a union card.
(i) Promising to give employees wage increases if
they refrain from engaging in union activities and
engage in surveillance of coworkers union activities.
(j) Soliciting employees to negotiate directly with
management and offering to adjust employee griev-
ances and complaints in an attempt to undermine the
above Union or any other labor organization.
(k) Soliciting employees to abandon the Union as
their collective-bargaining representative.
(1) Granting employees Christmas bonuses or
other benefits in an attempt to undermine the above
Union or any other labor organization.
(m) Failing and refusing to bargain collectively,
upon request, with respect to rates of pay, wages,
hours of employment, and other terms and conditions
of employment with Local 1199, Drug and Hospital
Union A/W National Union of Hospital and Nursing
Home Employees, Retail, Wholesale and Department
Store Union A/W AFL-CIO, as the exclusive repre-
sentative of its employees in the appropriate unit de-
scribed below. The appropriate bargaining unit is:
All full-time and regular part-time service and
maintenance employees employed by Respon-
dent at its Clifton Street, New Haven, Connecti-
cut facility, including nurses' aides, kitchen
employees, cooks, maintenance employees,
housekeeping employees, and laundry employ-
ees; exclusive of all office clerical employees,
professional employees, licensed practical nurs-
es, registered nurses, physical therapist, social
workers, social service director, in-service direc-
tor, charge nurse, shift supervisors, activities' di-
rector, guards and all other supervisors as
defined in the Act.
(n) In any other manner interfering with, re-
straining, or coercing its employees in the exercise of
their right to self-organization, to form, join, or assist
Local 1199, Drug and Hospital Union A/W National
Union of Hospital and Nursing Home Employees,
Retail, Wholesale and Department Store Union A/W
AFL-CIO, or any other labor organization, to bar-
gain collectively through representatives of their own
choosing, and to engage in other concerted activities
for the purpose of collective bargaining or other mu-
tual aid or protection, or to refrain from any or all
such activities.
NEW FAIRVIEW HALL CONVALESCENT HOME
2. Take the following affirmative action, which is
deemed necessary to effectuate the policies of the Act:
(a) Upon request, bargain collectively with Local
1199, Drug and Hospital Union A/W National
Union of Hospital and Nursing Home Employees,
Retail, Wholesale and Department Store Union A/W
AFL-CIO, as the exclusive representative of its em-
ployees in the aforesaid appropriate unit with respect
to rates of pay, wages, hours of work, and other terms
and conditions of employment and, if an under-
standing is reached, embody such understanding in a
signed agreement.
(b) Make the employees named below whole for
their loss of earnings in the manner set forth by the
Administrative Law Judge's Decision.
1. Lucy Abbattello
2. Brenda Alger
3. Deborah Alger
4. Terry Buzzin
5. Marie Conroy
6. Myrtle Gargiulo
7. Andrew Gaura
8. Joyce Jones
9. Rachael Novicki
10. Betty O'Connor
11. Mary Ann Pace
12. Edith Richards
13. Joanne Smith
14. Adel Vaicuilis
15. Lois Fazzino
16. Gertrude LaRocque
17. Gill Sewell
18. Lillian Reynolds
(c) In the manner prescribed in the Remedy sec-
tion of the Administrative Law Judge's Decision offer
to employees Cynthia Bernard, Myrtle Gargiulo,
Brenda Alger, Deborah Alger, Panay Adorno, and
Patricia Izzo immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to
their seniority or other rights and privileges and make
them whole for their loss of earnings in the manner set
forth in the Remedy section of the Administrative
Law Judge's Decision.
(d) Make employee Myrtle Gargiulo whole for the
loss of earnings sustained by her as a result of
Respondent's unlawful withholding of her pay raise.
(e) 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.
(f) Post at its facility at New Haven, Connecticut,
copies of the attached notice marked "Appendix." 9
,Copies of said notice, on forms provided by the Re-
gional Director for Region 1, after being duly signed
9 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 "
691
by the Respondent's representative, shall be posted by
the Respondent 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 the Respondent to
insure that said notices are not altered, defaced, or
covered by any other material.
(g) Notify the Regional Director for Region; 1, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a full trial in which both sides had the opportu-
nity to present their evidence, the National Labor
Relations Board has found that we violated the Na-
tional Labor Relations Act, and ordered us to post
this notice. We therefore notify you that:
WE WILL NOT interrogate employees about their
union activities and the union activities of their
coworkers.
WE WILL NOT threaten employees that we will
lock our doors before allowing a strike to occur.
WE WILL NOT threaten employees with loss of
their jobs, loss of their lunch and break periods,
loss of their benefits, and other reprisals if they
choose the Union, Local 1199, Drug and Hospi-
tal Union A/W National Union of Hospital and
Nursing Home Employees, Retail, Wholesale
and Department Store Union A/W AFL-CIO,
or any other labor organization, as their bargain-
ing representative.
WE WILL NOT tell employees to report to man-
agement if and when they are asked to sign a
union card.
WE WILL NOT tell employees that it is unlawful
for them to engage in any strike or other protect-
ed, concerted activities.
WE WILL NOT tell employees that they should
have come to management before going to the
above Union and that management could get the
employees a union.
WE WILL NOT tell employees that they will not
get a pay raise to which they are otherwise enti-
tled while employees are engaged in union activi-
ties, and WE WILL NOT withhold employees' pay
692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
raises for this reason.
WE WILL NOT tell employees that they cannot
have the above Union or any other labor organi-
zation as their bargaining representative.
WE WILL NOT promise employees pay increases
if they will refrain from engaging in union activi-
ties and engage in surveillance of coworkers
union activities.
WE WILL NOT solicit employees to negotiate di-
rectly with management and adjust employee
grievances and complaints in an attempt to un-
dermine the above Union or any other labor or-
ganization, or to abandon the Union or any other
labor organization as their collective-bargaining
representative.
WE WILL NOT grant employees a Christmas bo-
nus or any benefits in an attempt to undermine
the above Union or any other labor organization.
WE WILL NOT discourage union membership or
activities or other concerted activities by the em-
ployees at our New Haven, Connecticut, facility
by discharging them or by discriminating against
them in regard to hire and tenure of employment
or in regard to any other term or condition of
employment because of their union affiliation or
concerted activity.
WE WILL NOT fail and refuse to bargain collec-
tively, upon request, with the above-named
Union, as the exclusive representative of our em-
ployees in the appropriate unit described below.
The appropriate bargaining unit is:
All full-time and regular part-time service and
maintenance employees employed by Respon-
dent at its Clifton Street, New Haven, Con-
necticut facility, including nurses' aides,
kitchen employees, cooks, maintenance em-
ployees, housekeeping employees, and laundry
employees; exclusive of all office clerical em-
ployees, professional employees, licensed prac-
tical nurses, registered nurses, physical
therapist, social workers, social service direc-
tor, in-service director, charge nurse, shift su-
pervisors, activities' director, guards and all
other supervisors as defined in the Act.
WE WILL NOT in any other manner interfere
with, restrain, or coerce the employees at our
New Haven facility in the exercise of their right
to self-organization, to form labor organizations,
to join or assist the above Union or any other
labor organization, to bargain collectively
through representatives of their own choosing,
and to engage in other concerted activities for the
purposes of collective bargaining or other mutual
aid or protection or to refrain from,any or all
such activities.
WE WILL, upon request, bargain collectively
with the aforesaid Union, as the exclusive repre-
sentative of the employees, in the aforesaid ap-
propriate unit with respect to rates of pay, wages,
hours of work, and other terms and conditions of
employment and, if an understanding is reached,
embody such understanding in a signed agree-
ment.
WE WILL make the following employees whole
for their loss of earnings, as provided in the
Board's Decision and Order:
1. Lucy Abbattello
2. Brenda Alger
3. Deborah Alger
4. Terry Buzzin
5. Marie Conroy
6. Myrtle Gargiulo
7. Andrew Gaura
8. Joyce Jones
9. Rachael Movicki
10. Betty O'Connor
11. Mary Ann Pace
12. Edith Richards
13. Joanne Smith
14. Adel Vaicuilis
15. Lois Fazzino
16. Gertrude LaRocque
17. Gill Sewell
18. Lillian Reynolds
WE WILL offer the following employees imme-
diate 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 their loss of earnings, with 6-
percent interest per annum.
1. Myrtle Gargiulo
2. Cynthia Bernard
3. Brenda Alger
4. Deborah Alger
'5. Panay Adorno
6. Patricia Izzo
WE WILL make employee Myrtle Gargiulo
whole for her loss of earnings as a result of
Respondent's unlawful withholding of her pay
raise.
DANIEL A. DONOVAN,
CHARLES BRENNICK AND
JOHN BRENNICK , CO-PART-
NERS DOING BUSINESS UNDER
THE TRADE NAME AND STYLE
OF DANIEL A. DONOVAN
NEW FAIRVIEW HALL CONVALESCENT HOME 693
d/b/a NEW FAIRVIEW
HALL CONVALESCENT HOME
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Seventh Floor, Bulfinch Building, 15
New Chardon Street , Boston, Massachusetts 02114,
Telephone 617-223-3300.
DECISION
FRANK H. ITKTN, Administrative Law Judge: This case was
tried in New Haven, Connecticut, during some 28 days of
hearings commencing on January 24 and ending on May 3,
1972. The consolidated unfair labor practice complaints
issued herem, as amended before and during the hearings.'
allege in sum that Respondent Employer, in resisting the
Charging Party Union's organizational efforts at its nursing
home in New Haven, engaged in conduct violative of Sec-
tion 8(a)(1), (3), and (5) of the National Labor Relations
Act. The issues raised include whether Respondent Employ-
er interfered with, restrained, and coerced employees in the
exercise of their protected rights and discriminatorily dis-
charged employee Louise Tierney, in violation of Section
8(a)(1) and (3) of the Act; whether the Employer improperly
refused to recognize and bargain with the Union as the
designated bargaining agent of a majority of employees in
an appropriate bargaining unit, in violation of Section
8(a)(5) and (1) of the Act; whether the strike which com-
menced about May 6, 1971, was an unfair labor practice or
an economic strike; whether the Employer's subsequent re-
fusal, failure, and/or delay in reinstating certain striking
employees upon their unconditional offers to return to work
violated Section 8(a)(3) and (1) of the Act; and whether a
bargaining order is an appropriate remedy in this case.
Other issues related to the above include the supervisory
i On May 7, 1971, the Charging Party Union filed an unfair labor practice
charge against Respondent Employer and , on July 1, 1971, a complaint
issued in Case l-CA-7643 alleging violations of Section 8(a)(1) and (3) of the
Act. On August 30, 1971 , the Union filed a further charge against the Em-
ployer and, on November 4, 1971, an amended complaint issued in Cases
1-CA-7643 and 1-CA-7837 alleging violations of Sections 8(a)(1), (3), and
(5) of the Act. On October 7, 1971, the Union filed a further charge against
the Employer and, on December 3, 1971, a second amended complaint issued
in Cases 1-CA-7643, 1-CA-7837, and 1-CA-7903 alleging violations of
Section 8(a)(I), (3), and (5) of the Act. Thereafter, on January 10, 1972, an
amendment to the second amended complaint issued. And, at the hearing,
counsel for the General Counsel was permitted to amend further the second-
ed amended complaint to allege, inter alia, additional violations of Section
8(a)(1) of the Act
status and unit placement of certain persons; the validity of
various union membership cards signed by unit employees;
the nature and seriousness of employee misconduct during
the strike in order to determine whether particular striking
employees are entitled to reinstatement; and whether the
Union, because of its alleged misconduct, should be denied
the right to invoke the processes of the Act in aid of its
demand for recognition and, consequently, should be de-
nied a bargaining order as a remedy.
Upon the entire record,' including my observation of the
witnesses , and after due consideration of the briefs filed by
the parties, I make the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I THE BUSINESS OF RESPONDENT EMPLOYER,
THE LABOR ORGANIZATION INVOLVED
Respondent Employer is a proprietary nursing home and
extended care facility located at 181 Clifton Street, New
Haven, Connecticut. Daniel A. Donovan is the sole general
partner and Charles and John Brennick are limited part-
ners. The complaint-as amended and modified by stipula-
tion-alleges, the answer admits, and I find and conclude
that the Employer in the course and conduct of its business
derived gross revenues during the past calendar year in
excess of $100,000; that during the past calendar year the
Employer purchased drugs and other goods and materials,
the value of which was in excess of $10,000, which drugs and
goods and materials originated outside the State of Con-
necticut; and that the Employer is and has been engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
The parties stipulated and I find and conclude that the
Charging Party Union is a labor organization within the
meaning of Section 2(5) of the Act.
H. THE SEQUENCE OF EVENTS
A. Introduction
Daniel A. Donovan, the sole general partner at the
Employer's New Haven facility, is the highest ranking rep-
resentative of management; Robert Shepard, the adminis-
trator, is in charge of daily operations at the nursing home;
Jeremiah Donovan, Darnel's brother, was at all times mate-
rial assistant to the administrator; 3 and, Eleanor Boecker
was at all times material the director of nurses at the facility.
The facility provides 24-hour daily nursing care services.
It employs, inter alia, registered nurses, licensed practical
nurses, and nurses' aides. Their normal workday is divided
into three shifts-first shift: 7 a.m. to 3 p.m.; second shift:
3 p.m. to 11 p.m.; and third shift: 11 p.m. to 7 a.m. Kather-
ine Kornitzki was at all times material the supervisor of the
first shift; Mary Dennison was at all times material a super-
visor of the second shift; and Caroline Lane was at all times
2 General Counsel's motion to correct the transcript (dated August 21,
1972), which is unopposed by Respondent Employer and Charging Party
Union, is hereby granted.
3 Jeremiah Donovan also acted as construction supervisor at the facility
during a phase of certain remodeling operations.
694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
material the supervisor of the third shift. The facility also
employs kitchen employees, cooks, maintenance workers,
housekeepers, and laundry workers. Vincent Distasio was at
all times material the director of food services .4
The facility consists of three patient floors and a base-
ment . The building is located on a lot which slopes down-
ward from south to north on the easterly side of Clifton
Street. The first floor and kitchen area are on street levels;
the second floor is above street level and is also level with
the Employer's parking lot adjoining on the south side of the
premises ; and the third floor-is above both street and park-
ing lot levels. The first, second and third floors are divided
into four wings containing rooms for patients. There are two
elevators adjoining each other. The front entrance to the
facility is located on the south end of the second floor. To
enter the facility through the main entrance, a person would
walk through the parking lot and across a concrete ramp-
way to the main doorway. Directly inside this doorway is a
vestibule, which is also enclosed by various doors.5
The card was an application for membership; that
based on the cards, [the Union] would ask for recogni-
tion from the Employer if [the Union] got a majority
of the cards; that failing recognition from the Employ-
er, [the Union] would submit the cards to the National
Labor Relations Board, along with a petition and that
if we had a 30-per cent showing to the Board of cards,
valid signatures, that the Board would order an elec-
tion.
Brown testified:
We discussed that we needed a majority of cards and
we said that we would like to have more than 50 per-
cent because . . . if the Employer did fail to recognize
the Union and we were involved in an election cam-
paign, we feel that in order to win . . . we need more
... than 50 percent of the cards... .
Brown added:
B. The Union Commences its Organizational Effort,- The
Union Meetings of February 16 and 23, 19716
Jerome P. Brown testified that he is now acting vice presi-
dent for the Union and that both he and Leonard Seelig
were responsible for the Union's organizational drive at the
Employer's facility? Brown testified that employee Louise
Tierney had solicited the state AFL-CIO for organizational
assistance and, as a result, he communicated with her dur-
ing early February. On February 16, the first union meeting
was held at Tierney's home. And, on February 23, the sec-
ond union meeting was held at the Union's office in New
Haven.
Brown testified that present at the February 16 meeting
were Louise Tierney, Grace Betzner, Rachel Novicki, Elea-
nor Douglas, Winnie Rubino, and Betty O'Conner-all
nurses' aides employed at the facility; that the meeting last-
ed about 2 hours; that he "explained [to the employees]
what [an] authorization card was and what it meant"; and
that the six employees present signed union authorization
cards. Brown further testified that he explained to the em-
ployees, inter alia:
4 The parties stipulated, the essentially uncontroverted and credited testi-
mony establishes , and I find and conclude that Daniel A. Donovan , Robert
Shepard , Jeremiah Donovan, Eleanor Boecker, Katherine Kornitzki, Mary
Dennison, Caroline Lane, and Vincent Distasio were at all times material
supervisors within the meaning of Section 2 (11) of the Act. In dispute was
the supervisory status of one Beverly Wilmot, Daniel Greenwood , and James
Reynolds, discussed below. Also in dispute is whether Kornitzki , although
admittedly a supervisor , is in fact the so-called "first shift" supervisor As
discussed herein, I find and conclude that she is the "first shift" supervisor.
5 The first floor of the facility, as discussed herein, was not open until some
time in 1971 because of construction work and remodeling at the premises.
The facts recited in this introductory section are , as noted, essentially
uncontroverted and in part stipulated . In addition, the foregoing recitals are
based on the testimony of Robert Shepard as substantiated in material part
by diagrams, floor plans, photographs and related testimony. I credit his
testimony as recited above.
6 All dates hereinafter are in 1971 unless otherwise noted.
7 Brown explained that Seehg-the Union's vice president during the cam-
paign-died during October 1971. Brown was thereafter elevated from field
organizer to acting vice president of the Union.
I did tell them that it was our experience, in past times,
that we did not petition for. an election until we had
over a majority. We didn't make any commitment, in
this particular instance, with what percentage we would
go to the Board....
In addition, Brown discussed in general the advantages of
union representation.
Each of the employees present at the February 16 meeting
was given additional union authorization cards and in-
structed: "they should explain to the other workers what the
Union was . . . they should seek to get them to sign the
cards and' ask them to come to a Union meeting." During
the ensuing months, the Union, as Brown explained, re-
ceived a total of some 56 authorization cards purportedly
signed by the employees .8
Brown testified that at the February 23 meeting an organ-
izing committee was selected, including employees Louise
Tierney, Eleanor Douglas, Grace Betzner, Mary Jane Fazzi-
no, Jennie Cicarelli, Carmen Sein, and Joyce Jones. As
Brown explained:
... the main purpose of that meeting was to select an
organizing committee formally, to discuss the Union
with other employees who had not attended the first
meeting and to try to begin an organizing campaign
e On cross-examination, Brown also explained
. at every meeting and at that meeting, especially at the beginning
of the campaign, we discussed what the dues structure of the Union is
. how much monthly dues would be payable, depending on the
weekly salary, and we discussed the initiation fee and we made it plain
or clear as we do-as is in our constitution-that the initiation fees
would not apply to any workers who worked at [the] facility or began
to work at the facility before there was a contract.
9 I credit the testimony of Brown as recited above His testimony as sum-
marized herein is substantiated in material part by employees present at the
meetings and the events attending the execution of employee Union authori-
zation cards (discussed infra section III, C) and, under the circumstances,
impressed me as an accurate account of what was stated at the two meetings.
NEW FAIRVIEW HALL CONVALESCENT HOME 695
C. Director of Nurses Boecker Discusses the Union with
Employees Mary Ann Pace and Delores Dean during late
February; Daniel Greenwood Discusses the Union with Em-
ployees During Late February
Mary Ann Pace testified that she worked as a nurses' aide
at the Employer's facility on the first shift during 1971, and
that she signed a union authorization card on February 17.
Pace recalled that during late February Director of Nurses
Boecker entered the patient's room where Pace was work-
ing,
... and she [Boecker] asked me [Pace] if I knew any-
thing about the girls wanting a union, and I said no,
and she says, "Well, . . . I know that you are trying to
get a union in here.... All's I could tell you is, I'm
very disappointed and you're going to be sorry because
a union isn't all that it's supposed to be and you'd
probably be eliminating your coffee break in the morn-
ing, and of course they're [the Union] only after part
of your pay . . . because they had to take a fee."
In response, Pace assertedly told Boecker that she "didn't
know anything about it" and Boecker "turned around and
walked out" of the room.
Boecker testified that she in fact had a conversation with
employee Pace in a patient's room at the nursing home
during late February. According to Boecker:
I was sitting at my desk and I saw Mary Ann [Pace] in
the room [across the hall], doing her assigned duties.
I approached her and told her that I had heard
rumors that the girls were interested in the union and
that if this were so, maybe it would be to their benefit,
you know, to maybe give it a second thought because
they might be sorry in that sometimes union[s] are not
all that they appear to be... .
I also mentioned the fact that there would be certain
dues that would have to be paid . . . and that I was
'rather disappointed that the girls felt the necessity to be
represented by a union.
Boecker recalled that Pace "made no reply" and Boecker
"just left the room and went back to [her] office." Boecker
denied the other remarks attributed to her by Pace.
Delores Dean testified that she worked as a nurses' aide
at the facility on the second shift during 1971, and that she
signed a union authorization card on February 24. Dean
recalled that during the end of February Boecker ap-
proached her at the third floor nursing station and said: "I
know you heard about the cards going around and people
wanting tojom a union." Dean assertedly replied: `No, [she]
didn't" and Boecker stated: "well, if they come up to you
and ask you to sign a card will you please come to me and
let me know." Dean, as she testified, told Boecker: "Okay."
Boecker testified that during late February she saw Dean
"sitting at the nurse's station" on the third floor and "ap-
proached her and asked her, told her, that I [Boecker] had
heard a rumor that the girls were planning to have a meeting
and if this was so.... According to Boecker, Dean "re-
plied, no" and Boecker "walked away." Boecker denied that
anything else was said during this conversation. On cross-
examination, Boecker acknowledged that a maintenance
employee, Ray Cassista, had informed her on that same day
about the employees' attempts to form a union and she, in
turn, "pursued it to see Mr. Shepard" and relate to Shepard
what Cassista had said.
I credit the testimony of employees Pace and Dean as
stated above. Their testimony is in part mutually corrobora-
tive and substantiated by Boecker. Insofar as Boecker's tes-
timony conflicts with the above testimony of Pace and
Dean, I find that the testimony of Pace and Dean is a more
accurate and complete account of the particular conversa-
tions.10
Molly Arabo testified that she worked in the laundry
section at Respondent's facility on the first shift and that
she signed a union authorization card on February 17. She
recalled that on one day during early 1971 she was in the
basement of the home with some co-workers; that "the girls
were talking about the union . . . when they joined the
union ... "; and that Daniel Greenwood-an uncle of
Daniel Donovan who was then performing certain con-
struction services at the premises-11 approached the em-
ployees and said: `Come over here, I want you to see Mr.
Donovan." Arabo, when asked if she could remember "any-
thing else," testified: "That's all. . . . I don't remember
what they were talking about, but I was working."
Louise Tierney testified that during late February she and
a number of her coworkers were in the basement area pick-
ing up linen supplies and that,
Mr. Greenwood came into the laundry room and asked
how the Union was going, and I [Tierney] asked him
what union, what was he talking about. . . . [Green-
wood] said that he had heard that we were trying to get
a union together in Fairview and he wanted to know
why we didn't speak to Mr. Donovan about this getting
a union in, and that Mr. Donovan would be glad to talk
to us about it, and if not in the Home, then he would
take us out to a restaurant and have dinner some place
and discuss it away from the Home, and that Mr. Don-
10I note that there was uncontroverted testimony concerning certain an-
tiumon statements made by Boecker to a meeting of first and second shift
employees during the summer of 1970, before the Charging Party had initiat-
ed its campaign . Thus, according to the undemed testimony of employee
Louise Tierney, Boecker told the assembled employees:
. the unions weren't everything that they were cracked up to be, and
if that we thought that we were going to get a lot more money and
benefits and everything by having a union, that we were mistaken and
just that they didn 't want to hear any more talk of a union in there
because it would mean our termination.
In addition , former Adminsitrator Haskings made similar anti-union state-
ments at the meeting
I credit this undenied testimony of Tierney. Boecker , although questioned
at length by counsel for Respondent, was not asked about these statements
attributed to her. However , since these events occurred more than 6 months
prior to the filing of the charges in this case , I have received this evidence
for background purposes only See Local Lodge No. 1424, International Asso-
ciation of Machinists [Bryan Mfg. Co] v N. L.KB., 362 U.S. 411, 416-417
(1960); James W Glover, 178 NLRB 684, 685 (1969), enfd. sub nom. United
Brotherhood of Carpenters and Joiners, Local 745 450 F.2d 1255, 1256 (C.A.
9, 1971 ), and cases cited.
11 Respondent's responsibility for the statements attributed to Greenwood
is discussed in section VI, infra.
696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ovan would be glad to get us his union.
According to Tierney, employee Winnie Rubino, who was
also present, "said that they weren't interested in Mr.
Donovan's union and [the employees] had tried to talk to
Mr. Donovan and weren't able to. . . . Tierney also told
Greenwood, according to her testimony, "that we weren't
interested inMr. Donovan's union and we didn't want to
talk about it with him."
Greenwood testified that he was present at the nursing
home during February at which time he was assisting in a
phase of the construction work then in progress. Green-
wood explained:
I happened to be working down in the basement and
a group of girls were- down there for coffee breaks. I
overheard them talking about the union.... I walked
over and I said, "What is this I hear? ... What the hell
do you want a union in here for?" They told me they
were dissatisfied and nobody would listen to them.
They were having a few problems. They said: "Nobody
will listen to us." I said, "What do you mean nobody
will listen to you? Why don't you talk to Dan Dono-
van? He runs the place." That was about it. Some of the
girls wanted to and some didn't want to.
I credit Greenwood's recollection of what was said during
his conversation with the employees in the basement. Ara-
bo, as noted, was vague as to what she heard. Insofar as
Tierney's version of the incident conflicts with that of
Greenwood, I am persuaded that Greenwood's version is
more accurate.12
D. Union Representatives and Employees Meet with Ad-
ministrator Shepard on March 1; The Union Demands Rec-
ognition and Files a Representation Petition
Union Representative Brown testified that during the
morning of March 1 he "met a number of [Respondent's]
workers, who were off duty, on the street outside the drive-
way and . . . proceeded inside the facility . . . to attempt
to meet with Mr. Shepard . . . to demand recognition for
Local 1199 . . . "; that Shepard "invited us [the group] to
come up to his office . . . "; that "the people who were
on-duty . . . left their work stations at that time to come
also to meet with Mr. Shepard and we all went to Mr.
Shepard's office on the [third] floor . . . "; that, in the of-
fice, Brown apprised Shepard that the Union "represented
the majority of the employees in the service and mainte-
nance unit ... "; 13 that Brown offered to submit the
Union's signed authorization cards to a card check by a
neutral third party; and that Brown further apprised Shep-
ard that if the Employer did not grant recognition to the
Union, a petition for an election would be filed with the
Board. Shepard, as Brown further testified, asserted that,
12 Respondent's contentions that the allegations pertaining to the above
incidents should be dismissed because there was no timely charge filed and/
or they were not sufficiently pleaded are discussed infra, section VI.
13 Brown assertedly informed Shepard that he "could see that the number
of employees m his office at that time was a majority." According to Brown,
there were some 38 to 40 employees present and they displayed union but-
tons
"He did not know what the law was . . . he had to check
with the owners"; "he could not reach them and so . . . he
could not give [the Union] recognition.... 1114 According
to Brown, the employees and Brown "went out in the hall
to have a short meeting of the workers ... no more than
four to five minutes" and, thereafter, he "instructed those
on duty to go back to their work stations . . . and [he] went
outside with those workers who were off duty."
On cross-examination, Brown acknowledged that this
March 1 meeting with Shepard was called a "high noon."
He explained:
We have what we call a "high noon." It is merely a
phrase that describes for the most part the confronta-
tion of management to ask for recognition. . . . It is
our practice to meet with management with a group of
employees. . . . We, the employees, myself-had met
and had discussed the necessity of asking for recogni-
tion and we arranged a time where we would meet at
the nursing home and where those people who were
on-duty who wished to come to meet with Mr. Shepard
would come.... We arranged to meet outside the
facility and then to go inside to meet with Mr. Shepard
.... [A]t a particular time somewhere around 10
o'clock, we would come into the facility, myself; the
off-duty people, to meet with Mr. Shepard and that we
would like the on-duty people to come with us ... and
that . . . we had arranged first to meet on the second
floor . . . nursing station... .
Brown also recalled that employees engaged in handclap-
ping in or about Shepard's office and that no advance per-
mission was requested for on-duty employees to leave their
work stations.
Shepard testified that there were about 35 employees
present at the March 1 meeting; that, in addition to Brown,
Union Representatives Morico and Ciulla were also pres-
ent; that Ciulla did "most of the talking"; that a Union
spokesman said "that they represent the employees of the
nursing home [and] wanted to have [Shepard] or the nursing
home to sit down and bargain with them ..."; and that
Shepard replied:
I told them that I didn't have the authority; that I
would have to speak to the owners of the home; that
they were getting involved in legal matters of which I
had little knowledge... .
Shepard also recalled that a union spokesman noted that
"the people were wearing buttons then and that they didn't
want [Shepard] to do anything about the buttons ... they
had every legal right to wear those buttons ... "; that a
request was made for an independent card check; and that
employee Novicki spoke up and claimed "that all the em-
ployees were behind the Union and they wanted the Union
.... " Employees "cheered and clapped their hands."
14 Brown recalled that employee Novicki spoke up at the meeting and said:
"the workers wanted the Union ... they wanted [Shepard] to recognize the
Union and . they were organized.... " In addition , Brown instructed
Shepard that Respondent "would obey the law and would not intimidate
employees and members of our Union .. .
NEW FAIRVIEW HALL CONVALESCENT HOME 697
Thereupon. the employees and their representatives went
out into the hall and met for 2 to 3 minutes. Shepard then
apprised the group that they "must leave" and he "would
call the police if [they] didn't leave." A union spokesman
told Shepard that "they would only be there for a very short
period of time and so [Shepard] let things ... rest as it
was." The meeting then broke up.15
The above testimony of Shepard and Brown with respect
to the March 1 meeting is by and large mutually corrobora-
tive. Insofar as the two versions differ, I find that, under the
circumstances, Brown's recollection is a more complete and
accurate statement of what transpired and was said by the
union participants at the March 1 meeting.
Thereafter, on March 1, the Union dispatched a telegram
to the Employer, which was received either on March 1 or
2, stating:
... [the Union] represents a majority of your employ-
ees in an appropriate unit of service and maintenance
employees . . . we are requesting a meeting with you
for the purpose of discussing terms and conditions of
employment for said employees... .
The Union also offered in its telegram to submit to a card
check by a neutral or impartial person "if you have my
doubt as to our representative status." In addition, on
March 2, according to the uncontroverted testimony of
Union Employee Marta Kalinin (whose testimony I credit),
the Union mailed to the Board's Boston Regional Office
some 31 union membership cards purportedly signed by
unit employees. And, on March 4, the Union filed a repre-
sentation petition (Case 1-RC-11453) with the Boston Re-
gional Office for a unit consisting of Respondent's "service
and maintenance employees" at the New Haven facility.16
E. Shift Supervisor Lane Discusses the Union with Employ-
ee Virginia Pope During the First Week of March, Direc-
tor of Nurses Boecker Questions Employee Vivian Nugent,
and Beverly Wilmot Interrogates Employee Ellen Paluha
Virginia Pope testified that she is presently employed as
a nurse's aide at the facility; she signed a union authoriza-
tion card on February 26; and on March 1 she was present
when Union Representative Brown requested recognition
from Shepard. Pope also testified that she worked the night
shift on March 1, and Caroline Lane was her shift supervi-
sor. That night, according to Pope:
She [Lane] asked me [Pope] what the button was for
that I was wearing. And I told her we had come in that
day to ask for recognition. And she asked me if I had
been with them when they came in . She asked me if I
knew what I was getting into, and told me that the
Company wouldn't like it, that I was taking a chance
with my job.
She said why didn't we go to Mr. Shepard and pre-
15 Shepard, in answer to a question by Respondent's counsel , asserted that
"nothing was said about an election or a petition ," by the union representa-
tives.
16 The representation petition recites that a request for recognition was
made on March I and "no answer " was the Employer's response. The
Union's letter of March 2 , enclosing the 31 authorization cards, was received
by the Board's Regional Office on March 5.
sent -him with our problems. We would get more that
way than we could through the Union. That we would
be paying high dues and initiation fees, and that she
would no longer be in charge of us. That we would be
answerable to the Union. She wouldn't be able to help
us out.
She said we would all lose our jobs ... "You will all
be fired."
In addition, Pope testified that Lane "talked about" the
Union "quite often," occasionally in the presence of co-
worker Patricia Izzo. Pope recalled Lane saying:
... the Company would be giving us a hard time, and
they would never stand for the Union. Never consent
to it, or give us an election.
Lane assertedly "talked quite often to us about it." 11
Shift Supervisor Lane acknowledged that on the evening
of March 1 she "asked [Pope] what the button was"; that
Pope "told [her] it was a union button"; and that this was
the first time Lane had heard about the Union. Lane denied
the other statements attributed to her by the employee.
I credit the testimony of employee Pope recited above. I
do not believe that Lane, as she asserted, confined her con-
versation with employee Pope to asking "what the button
was" which the employee wore on the evening of March 1.
Lane admitted discussing the Union at length with other
employees during the organizational drive. Thus, Lane testi-
fied that she stated to various nurses' aides: " . . . I didn't
believe in unions in a small place like this"; "that a Union
would not be very beneficial to [Lane] or the nurses" be-
cause the nurses "wouldn't have the right to tell [the aides]
what to do"; and " ... why don't you go and talk to Mr.
Shepard and see if you can straighten things out with him
.... " Under the circumstances, I am persuaded that Lane
also made the above statements attributed to her by Pope.18
Employee Delores Dean testified that coworker Vivian
Nugent signed a union authorization card on February 24.
Dean further testified that about 1 week after Boecker's
initial conversation with her about the Union during late
February (section II, C, supra), Boecker "walked into the
room where Vivian [Nugent] and I were doing a patient."
According to Dean:
... [Boecker] stated to Vivian. . . "I know you know
17 On cross-examination, Pope explained that Lane initiated the first con-
versation about the Union, "after that maybe sometimes we did and maybe
sometimes she did", Lane "at times used to ask us questions and that would
start a discussion [or] somebody else would, another nurse would ask a
question, and it would start a discussion" in the lounge area; and Lane
"seemed very angry" at Pope when she, Lane, "saw the [union] button" being
worn by the employee Pope also testified on cross-examination that Lane
"said that they [the Employer] wouldn't go for it, they wouldn't stand for it";
"Donovan would not like it"; "You will all lose your jobs."
I note that Pope's preheating statement only refers to Lane's March I
conversation with the employee. Pope did not recall whether the Board's
agent asked her about other conversations with Lane
15 Lane's other conversations with employees concerning the Union are
discussed infra, section II, J.
698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
about the Union trying to get in and the girls wanting
to join." And Vivian said no, she didn't. And Mrs.
Boecker said, "Well, if they come up to you and ask
you to sign a card, would you?" And Vivian [said],
"No, Mrs. Boecker, you know me better than that."
And then she walked out.
Boecker denied having such a conversation with Nugent.
Boecker, however, as noted, admitted questioning Dean
about a union meeting and admitted discussing with em-
ployee Pace "rumors that the girls were interested in the
Union...... Under the circumstances, I do not credit
Boecker's denials of the above statements attributed to her
by Dean. '9
Ellen Paluha testified that she is presently employed at
Respondent's New Haven facility; she signed a union au-
thorization card on March 24; and, earlier, when a number
of her coworkers wore union buttons during late February
or early March, Beverly Wilmot discussed the Union with
her in the presence of coworker Lois Fazzino. According to
Paluha:
To the best of my knowledge this was the first time the
buttons had been worn and everyone was kind of talk-
ing about it, and Mrs. Wilmot wanted to know what
was going on. And she was asking Lois [Fazzinol and
[Paluha], and we told her that we weren't allowed to say
anything about the Union. And she said, well she
would keep after us until we told her, and she was going
to bug us all night. And we just told her at this point
I [Paluha] really didn't know anything about it. Al-
though she wouldn't believe me and she just kept fol-
lowing us around all night asking us questions, who,
why we wanted to join the Union. Who was in back of
it. What was it all about... .
I credit the undenied testimony of Paluha.20
F. Daniel Donovan and Robert Shepard Deliver Speeches
to the Employees on March 4 and 5
1. Donovan's speech
Daniel Donovan testified that he spoke to two groups of
second-shift employees at the facility during the afternoon
of Thursday, March 4. According to Donovan, he first
spoke to a group of employees assembled in the second floor
lounge or sitting room area and, shortly thereafter, spoke to
a group of employees assembled in the kitchen area. Dono-
van recalled that his speech was prepared during the eve-
ning of Wednesday, March 3, with the assistance of Shepard
and counsel for Respondent 2" Donovan admittedly did not
19 Nugent (who was terminated about April 12) did not testify and, further,
Respondent argues that in effect Dean testified that the above conversation
occurred on March 4 when Dean was not at work Although Dean was
uncertain as to the date of the conversation , I credit her testimony summa-
rized above. Respondent's further contention that the above incident was not
sufficiently alleged is discussed infra, section VI
20 Wilmot did not testify . Respondent's contention that Wilmot was not a
supervisor and the Employer is not responsible for her allegedly coercive
conduct is discussed infra, section VI.
21 Donovan testified that the speech was prepared in response to a newspa-
read his speech from the prepared text; rather, he studied
the text beforehand and addressed the employees without
notes. Donovan assertedly told the assembled employees:
I told the people I had asked them to come together for
a very important reason. I had heard that there was an
organizing attempt at the home, that the union was
involved, a union was involved, some union was in-
volved; that I was a little bit shocked and a little bit
taken back and I didn't understand what was going on.
I didn't think it was necessary. That we had been work-
ing for a few years together and we had had problems.
We had made mistakes and we would probably contin-
ue to make mistakes, but it was nothing we could not
resolve and I didn't think that outside representation
was necessary.
I told them I had been made aware by a newspaper
article that there had allegedly been a petition filed for
recognition, but had not received official notification
of this petition, and if in fact there had not been a
petition, I would go to Boston and seek a petition for
an election. That I thought the only way the situation
could be resolved was if we had a democratic election,
a secret election, an open election.
I also said the union people could make promises
that I could not make; that we were in a very legalistic
area and it was very carefully regulated and I was
counseled that I could not make any promises or say
anything and that I would notify them of whatever
information I got. I would pass it on to them.
Shepard, who was present during the preparation and dehv-
ery of Donovan's speeches, generally corroborated
Donovan's version of what was said to the employees.
Employee Paluha attended Donovan's speech in the sit-
ting room. She recalled that Donovan said:
... he was upset . . . because we had gone behind his
back to a union rather than to come to either himself
or Mr. Shepard or Mrs. Boecker, and stated our griev-
ance. And he said that some of them had been with
them for many years, and they knew he was having
financial problems and if they could just bear with
them, conditions would get better. And he said that,
however, if we did want a union he would see that we
would get a good union. And he said that he had al-
ready filed a petition in Boston concerning this.. .
On cross-examination, Paluha explained that Donovan had
said: "There was a petition in Boston for a union. . . . He
said he had already filed a petition." Paluha denied that
Donovan had used the words "company union," "sweet-
heart" union or named a specific union. Paluha also denied
that Donovan had used the words "gangster, hoodlum [or]
crook" in his speech.
Employee Gertrude LaRoque attended Donovan's
speech in the kitchen area. She recalled that Donovan said:
per article appearing in the New Haven Register on March 3 The article
stated, in part, that "The Union has asked the [NLRB] to conduct a represen-
tation election among the Home's more than 60 employees. . " Donovan
identified Exh R-57 as a Xerox copy of the prepared original speech; he
could not locate the original document.
NEW FAIRVIEW HALL CONVALESCENT HOME 699
Mr. Donovan said that he knew that we wanted a union
in there and he said something about going to Boston,
but I don't know what it was all about.
On cross-examination , LaRoque testified:
All I know is that he [Donovan] came into the kitchen
and talked to us one night and he said something about
he knew we wanted to get a union in there and that he
was going to Boston.
The witness could not remember whether Donovan said
that he was "going to Boston to file a petition" or whether
Donovan said "anything about getting another union."
Employee Marie Conroy attended Donovan's speech in
the second floor sitting room . She testified that Donovan
said: "How come you didn 't come to me if you wanted a
Union? . . . We could have got you a company union."
Conroy explained , "That's all I remember ." Later, Conroy
testified that Donovan said:
they [Local 1199 ] were gangsters from New York, that
he could have got us, if we wanted a union , he could
have got us a union himself, that these were gangsters
from New York ... all they wanted is to collect money
On cross-examination , Conroy testified:
He [Donovan] asked us if we wanted a union, he could
get us his union , or something, that 1199 was a bunch
of crooks. . . . He used the term "company union"
22
I am not persuaded that Donovan made the statements
attributed to him on March 4 by the employees . The em-
ployees, as shown above, differ in material part as to what
they heard. Donovan 's version of his speech is generally in
accord with the text prepared with the assistance of counsel
and his testimony is corroborated by Shepard . I credit
Donovan's testimony regarding the content of his speech.
2. Shepard's speech
Shepard testified that about 7 a.m. on Friday , March 5,
he "heard a rumor . . . that when Mr. Donovan gave the
talk the previous night . . . he had said that he was going
to bring [in ] another union. . . . " Shepard could not recall
the source of this rumor . Shepard immediately telephoned
Respondent 's counsel . Thereafter , Shepard caused the nurs-
es' aides on the first shift to be assembled in the sitting room
on the second floor. Shepard testified , as follows:
I told the aides that I had called them all into the
room to give a short talk to them, that Dan Donovan
had hoped to be here himself to speak to them, but he
wasn't able to make it down that day. Dan had spoken
to the aides the previous afternoon , the second shift
aides, and I said it seems that there had been some
misunderstanding as to what Dan did say, that I heard
rumors that he had mentioned he was going to bring
another union in , "I would like to bring another union
in." I told them that this was absolutely false, that he
didn't want any union, he certainly wasn 't going to talk
about bringing a second union into the picture. And
then I went on to tell them what he would have said if
he had been able to be present there himself. I told
them that he said that he had heard a rumor that there
was a union trying to get into the nursing home, that
he had worked in the nursing home or owned it for a
number of years and there had never been any need for
any outside representation and, to be frank , he didn't
think there was any need for it right now. That he was
a little bit shocked and surprised that some of the em-
ployees felt that there was presently a need for some
outside representation . He would have told them that,
sure there had been errors made in the past and there
would be errors made in the future , too, but he was
quite sure that they could work these errors out among
themselves . He then would go on to tell them that he
had seen an article in the previous day's paper, that
would have been two days previous at this point, that
the union had gone to the N.L .R.B. in Boston and filed
to have an election and that he was not , you know, he
had no official proof that this had been done but he did
believe that the paper was right. But, in case the paper
was not right, he personally would go to Boston and file
for an election.... I did say how we had been able
to work out arguments in the past , differences and all.
At that point Louise Tierney said that she had tried to
come to Dan and myself and nothing had helped at all.
I just went on from that point and didn't pay any
attention to what she had said . And then I got down
a little further in the argument and I said , I think I
should tell you something about this union , too, that
they are known to be a pretty rough bunch . And at that
Louise Tierney hopped up , said that they didn't have
to sit here and listen to me say anything against the
union . She left the room and the others said, yes, yes,
we agree, and they followed her out of the room, too
.... One of the aides, Miss Bernard, walked to-
wards-she was the last one to leave the room. She
walked towards the door and she sort of lingered there
.... I told her-let me get my thoughts straight again
as to where I was in the speech-that the union could
make all kinds of promises to them, that we weren't
allowed to make any promises to them at all, that this
became a very legal thing and we really didn't know
where we did stand, but that we would keep her and the
others in touch with any developments at all.
Employee Edith Richards testified that she signed a
union authorization card on February 24; she was present
in Shepard's office on March 1 when the Union demanded
recognition ; and she was present at Shepard 's speech on
March 5. She testified:
22 Conroy acknowledged that her daughter , Vivian Nugent, had been fired
by Respondent during the organizational effort. The discharge of Nugent, as
noted below, is not alleged as a violation of the Act.
I was late getting there and I just remember him saying
that if we wanted a union we should have come to them
700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Richards could not recall what else was said. Richards later
recalled that Shepard also said: "Why didn't you come to
us. We could get you a Union."
Employee Joanne Smith also attended Shepard's
speech.23 She recalled that Shepard said:
... that if we had any problems . . . we should have
come to talk to him first about it and that he could get
us a union.
Smith added: "Some of [the employees present] had said
that they had tried to talk to them before but they couldn't,"
and "we all left afterwards." 24 On cross-examination, Smith
testified that Shepard said: "if we had any problems ... we
should have come to him . . . [and] if we had wanted a
union, he could have gotten us one." 25
Employee Mary Ann Pace testified that she attended
Shepard's March 5 speech 26 She testified as follows:
... he [Shepard] said that he understood that we had
a problem, and he wanted to know why we didn't talk
it over with Mr. Daniel Donovan or Mr. Shepard.. .
and at this point Mrs. Tierney jumped up and said:
"We tried to talk to you but no one would listen to us,"
and he said: "Well, if you girls wanted a union, Mr.
Donovan will be glad to bring in his own union," and
he said that the union that we were going to be affiliat-
ed with was nothing but like gangsters and like to riot.
According to Pace, "at this point we all jumped up and said
that he could talk to us about our job . . . but we didn't
want to discuss the union with him, and we walked out of
the room." Shepard assertedly said: "wait a minute," but
the employees "walked back to [their] jobs." On cross-ex-
amination, the witness recalled Shepard stating: "if we had
come [to management] with our problems, Mr. Donovan
would have been glad to bring in his union."
Employee Louise Tierney testified that Shepard said to
the assembled employees:
He said that there had been talk of a union in the home
that Mr. Donovan wasn't aware that we were hav-
ing problems in the home, and if we were having prob-
lems why didn't we go to see Mr. Donovan. [Tierney]
told him that we had tried to see Mr. Donovan and
asked to speak with him several times and he either
wasn't available or didn't want to talk to us. . . . He
said that he didn't know if we were aware of it or not,
but that union was run by a bunch of rackateers... .
Tierney added: Shepard "said that we could talk to Mr.
23 Smith signed a union card on February 24 and she too was present in
She^ard's office on March 1.
2 The witness related that "Louise Tierney had said that they tried to talk
to them before and that they couldn't."
25 Employee Smith also testified that she subsequently attended another
meeting where Shepard told the workers: "in case we hadn't been at the other
meeting he wanted to point out to us that if we had any problems we should
have come to him first, talked to him first, talked to him about our problems
and that he could have gotten us a union, if we wanted one"; "that he could
get us another union other than 1199, which was a hoodlum group."
26 Pace signed a union card on February 17.
Donovan and maybe get us his union." Tierney then "told
Mr. Shepard that we didn't have to listen to any more of
what he had to say about Donovan's . . . union or against
our union, and we left the room." According to Tierney,
Shepard claimed that he "wasn't finished talking yet and
that we had to stay" and "he detained Cynthia Benard for
a minute or two."
Employee Grace Betzner testified as follows:
Mr. Shepard started out by saying that he heard there
were rumors going around we were trying to start a
union and Mr. Donovan was aware of the fact, and if
we were having problems why didn't we go to him first.
Mrs. Tierney spoke up and she said we tried but we
didn't get anywhere. He said we should have gone to
Mr. Donovan first, 'that they could have worked it out
without a union. He said, "I don't know if you are
aware of it or not but 1199 is a bunch of gangsters and
if you want a union you should have come to see us
first. We could get you a union." With that, Mrs. Tier-
ney said, "We don't have to listen to this." She stood
up and we all stood up just about the same time and
we walked out.
One of the girls, one of the aides, he cornered her. He
said, "I am not through yet. I want to finish. I am not
through." He tried to hold her in the doorway. She just
turned around and she said, "Man, move out of my
way," just like that... .
Shepard admittedly deviated in part from the text of the
speech prepared by Respondent's counsel for Donovan.
Thus, as Shepard acknowledged, he characterized the
Charging Party Union as "known to be a pretty rough
bunch" and spoke about a "rumor" to the effect that Dono-
van "would like to bring another union in." Under the
circumstances, I am persuaded from the corroborated testi-
mony of the employees as stated above that Shepard's devi-
ations from the recommended text were more extensive
than he admitted. Accordingly, I credit the above testimony
of employee Richards, as corroborated in material part by
employees Pace, Smith, Tierney, and Betzner, that Shepard
also told the assembled employees, in effect, that if the
workers had any problems they should have come to man-
agement first and that management could get the workers
a union. I also credit the testimony of employee Pace stated
above, as corroborated ii material part by Tierney and
Betzner, that Shepard referred to the Charging Party Union
as either "gangsters [who] liked to riot" or a "bunch of
rackateers [sic]."
3. The notice to employees posted on March 9
On March 9, management posted on the home's bulletin
boards a notice to the employees. The notice, signed by
Daniel Donovan, referred to a newspaper article, in part as
follows:
According to the article the union complained about
"an attempt by a management official to persuade
workers to join another union." Since I'm the only one
who spoke to you Thursday I must be the management
official they're referring to. You know, as well as I do,
that I never attempted to persuade you to join another
NEW FAIRVIEW HALL CONVALESCENT HOME 701
union. Nothing could be further from the truth . I would
never do this, nor would anyone else in management.
It would be unlawful.
There was another lie. The article said that another
part of the union's complaint is the "management's
refusal to meet with it to discuss a request for an early
election ." Since the union has now filed a petition with
the National Labor Relations Board the next step is for
the parties to meet with the government-probably in
Boston-to try to set up an election . The government
arranges this meeting. We have not yet received a call
from any government agent . So the union is dead
wrong about any refusal on our part to meet to discuss
an election. We want a secret ballot election and will
meet with the government just as soon as a date is
arranged.
The notice remained posted for a few weeks.
G. The Union 's Confrontation with Management on March
5; the Employer 's Rejection of the Union 's Request for Rec-
ognition on March 11; the Union's Confrontation with
Management on March 25; Management's Notice to Em-
ployees Announcing Representation Hearings
1. The March 5 incident
Union Representative Brown testified that about 2:30
p.m. on March 5 he "met off-duty employees outside the
[Employer's] building and [they] went inside to meet with
Mr. Donovan and Mr. Shepard ... to ask them to repeat
what had been said . . . by management at the employee
meetings on March 4 and 5, "so that we would all hear it."
According to Brown, "my purpose . . . was to tell them
that, in our opinion, this was [an] unfair labor practice
.... " Once inside the nursing home, Brown and off-duty
employees met with on-duty personnel at the nursing sta-
tion on the second floor; they went to the kitchen to look
for Shepard, went back upstairs to the secretary's office, and
went to the second floor lounge where they waited for Shep-
ard and Donovan. According to Brown, Shepard came to
the door of the lounge and told Brown and the off-duty
employees that they "would have to leave, that he did not
want to meet with [them] and that he would call the police
.. " Brown and the employees admittedly refused to
leave the premises. According to Brown, Brown asked both
Shepard and Donovan "to meet with us"; "to come in" the
lounge; "they refused and then the police came and asked
us to leave, so we left." Brown further recalled that after the
police arrived, "all of the employees, both on-duty and off-
duty, came outside for . . . 10, 15, minutes and then [the
on-duty personnel] returned to work." Brown recalled that
the on-duty and off-duty participants totaled about 35 to 40
employees 27 Brown acknowledged that this meeting or con-
frontation had been planned in advance by the Union's
organizing committee. No advance notice to management
or request for permission to meet on the premises had been
issued, and the on-duty employees were away from their
duty stations about 30 minutes.
27 Brown recalled that there were patients sitting in the lounge when they
entered.
Shepard testified that on March 5 he had instructed
Brown at the entrance to the premises "that he [Brown] was
not . . . to come into the nursing home. He was trespassing
on private property. . . . Mr. Brown informed [Shepard]
that he had every right in the world to be there and just
walked right by" Shepard. Shepard assertedly warned
Brown that he would call the police and Brown responded:
" ... go ahead and call them." Shepard recalled that the
group of employees included some 15 on-duty employees
and 19-20 off-duty employees; that there "was a lot of noise
and applause" while the employees were in the second floor
lounge; 28 and that Daniel Donovan told Brown to leave
and Brown repeatedly replied:
Won't you come down and talk to the employees. Why
don't you talk to your employees. You won't even listen
to your employees.
According to Shepard, about 5 minutes after the police
arrived the union representatives, on-duty employees, and
off-duty employees "left the building" and met in the park-
ing lot. Shepard asked the policemen to have the group
move out to the road and they did. Shepard recalled that the
on-duty employees returned to the home about 3 p.m.;
punched out on the timeclock and left; and the next shift
started at 3 p.m. as scheduled.
According to Shepard, Union Representative Seelig
called Shepard later that same afternoon, and said:
If we [management] did not give the employees a quick
election we would have more of the same, referring to
the walkout.... He said it won't be a short half hour
walkout ... it would be much longer walkouts... .
The testimony of Brown and Shepard stated above is in
part mutually corroborative. Insofar as Brown's version dif-
fers from Shepard's version, I credit Shepard. In view of the
related sequence of events, I am persuaded that Shepard's
recollection of the March 5 incident as stated above is more
accurate and complete. As for Seelig's telephone call to
Shepard later that day, Seelig is deceased and, therefore, I
have carefully scrutinized the testimony insofar as it per-
tains to Seelig. See, e.g., Sam Wallick , d/b/a Wallick and
Schwalm Company, 95 NLRB 1262, 1263 (1951), enfd. 198
F.2d 477, 483 (C.A. 3, 1952). Nevertheless, I credit
Shepard's testimony in this respect.
2. The March 5 notice to employees
During the late afternoon of March 5, management post-
ed a notice on the home's bulletin boards, stating in part:
This afternoon some employees walked off of their
duty stations without permission, and in total disregard
of the welfare and safety of our patients. I think you
should all understand one thing very clearly. We will
not tolerate such conduct. Each employee who left her
station will be docked for the time. Each employee will
be notified personally that a repetition of such conduct
will result in disciplinary action.
zs Employer Patricia Izzo testified-
. we were all shouting ... about we didn't want him [Shepard]
talking to the people about this union ...
702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Shepard acknowledged that on-duty employees partici-
pating in the March 5 walkout were docked 30 minutes; that
various timecards of the participating on-duty employees
contain the notation "union meeting"; and that he person-
ally told employees on the first shift that repetition of such
conduct would result in disciplinary action.29 Shepard ac-
knowledged that all on-duty personnel participating in the
March 5 walkout had "notations" placed in their personnel
files. Thus, for example, Louise Tierney has noted in her
personnel file, inter alia:
On March 5, 1971, at 2:30 p.m., a 30 min. walkout
occurred. Miss Tierney left her duty station for a half
hour to participate in an illegal job walkout. She was
informed that any repitition of this conduct would re-
sult in disciplinary action. She was docked for a half
hour.
3. The Employer's letter of March 11 to the Union; the
March 25 incident; management's March 25 notice to
employees
By letter dated March 11, counsel for Respondent ap-
prised the Union that:
The Company has referred to us your request for
recognition as the collective bargaining agent for the
employees of the New Fairview Hall Convalescent
Home.
The Employer has informed us that it doubts that
you represent an uncoerced and informed majority of
the employees in an appropriate unit. The Supreme
Court of the United States has stated that the prefera-
ble method for determining whether or not employees
desire to be represented by a collective bargaining
agent is a secret ballot election.
In view of the fact that you have filed a petition for
an election, we shall await the results of the Labor
Board proceedings.
The Boston regional office scheduled the first representa-
tion hearing in this case on April 1. On the evening of March
24, according to the testimony of Union Representative
Brown, a union meeting was held in New Haven. The em-
ployees selected a committee to attend the representation
proceeding in Boston, and
... discussed the possibility that the management
would attempt to delay or stall [the proceeding]... .
Consequently, according to Brown, the employees planned
a "meeting" with the Employer for the next day, March 25,
assertedly "to request that the hearing not be postponed
. and that there be no' ... stalling."
About 10 a.m. on March 25, Brown, as he testified, met
a number of off-duty employees outside of Respondent's
facility and attempted to enter the premises . Jeremiah Don-
29 Shepard claimed that he told on-duty employees that "any reoccurrence
of action like this, pertaining to the walkout, might result in disciplinary
action." I find (as the written memoranda in employee personnel files show)
that the word "would result in disciplinary action" was used instead of
"might" or "could."
ovan and others told Brown that "they would not let [the
group] in...: . Brown assertedly asked Jeremiah Dono-
van, "what authority he [Donovan] had not to let us in," and
Donovan persisted in his refusal to let Brown and his group
enter the premises. Thereupon, on-duty personnel left the
premises and met with Brown and the off-duty workers.
According to Brown, a committee was selected "to ask Mrs.
Boecker to convey to the management that [the Union and
the employees] did not want to delay ... " the representa-
tion case.
Jeremiah Donovan testified that on the morning of
March 25 neither Daniel Donovan nor Shepard were pres-
ent at the facility; he observed Union Representatives Roo-
sevelt Ward and Brown congregating in the parking lot
area; he, Donovan, "asked them to please leave the property
... they were trespassing"; and "they refused." Donovan
recalled that on-duty personnel started leaving the prem-
ises; he called the police; and the group was subsequently
asked to leave and did leave the Employer's grounds. Ac-
cording to Donovan, the walkout lasted about 30 minutes
and the on-duty personnel thereafter returned to work.
Some 17 on-duty employees participated in the walkout 30
Following the above incident, management posted on the
bulletin boards a notice stating:
This morning we had another example of the Union's
irresponsibility. The walk-out today was absolutely
senseless . I understand that the purpose of the walk-out
was to "force" a meeting with management. (I was not
even in Connecticut at the time.)
Nobody has to leave patients helpless in order to ar-
range a meeting. We will be glad to meet with each and
every one of you at any time-as long as we all under-
stand that our first obligation is to the patients.
As we told you the last time the Union misled you, we
are not going to tolerate any conduct which is contrary
to the welfare of our patients.
Each employee who left her work station will be
docked for the time. If there is any repetition of this
conduct, more severe disciplinary action will be taken.
You should also know that the Union's action is a
violation of Connecticut law. We have advised our at-
torneys to take the appropriate steps to see that this
type of activity does not happen again.
Shepard acknowledged docking on-duty employees for
their participation in the March 25 incident and that repri-
mands were placed in employee personnel files. Thus, for
example, Tierney's personnel file states:
On March 25, 1971 at 10:30 a.m. a 30 minute walkout
occurred. Miss Tierney again left her station for a half
hour to partake in the walkout. She was again informed
30 The above testimony of Brown and Jeremiah Donovan is in part mutual-
ly corroborative. Insofar as Brown's version differs from Donovan's version,
I credit Donovan. I am persuaded that Jeremiah Donovan's recollection of
this incident as stated above is more complete and accurate.
NEW FAIRVIEW HALL CONVALESCENT HOME
that any repetition of this conduct would result in dis-
criplinary action and discharge would be considered.
She was docked for a half hour.
4. Management's notice to employees concerning the
representation hearing
Representation hearings were held in Boston on April 1,
7, and 13. A few weeks prior to the first hearing, the Em-
ployer posted the following notice:
TO ALL EMPLOYEES
WE ARE HAPPY TO REPORT THAT WE WILL BE MEETING ON
APRIL 1, 1971 WITH THE NATIONAL LABOR RELATIONS BOARD IN
BOSTON FOR THE PURPOSE OF DETERMINING WHO WILL BE VOT-
ING IN THE UP-COMING SECRET BALLOT UNION ELECTION
WE WILL KEEP YOU INFORMED OF ALL DEVELOPMENTS WITH
RESPECT TO THIS MATTER AND AS TO ALL OTHER MATTERS OF
MUTUAL INTEREST
IF YOU SHOULD HAVE ANY QUESTION, PLEASE DO NOT HESITATE
TO SPEAK WITH MR DONOVAN, MYSELF OR YOUR SUPERVISOR.
H. The Events Pertaining to Employee Myrtle Gargiulo's
Request for a Pay Raise
Employee Myrtle Gargiulo testified that she started
working for Respondent during February 1968 as kitchen
help; during 1971 her hours of work were 8:30 a.m. to 12:30
p.m., 5 days a week; and that she signed a union authoriza-
tion card during the beginning of the campaign.31 Gargiulo
testified that during early February she "asked [Vincent]
Distasio for a raise and told him it was over a year ... "
since her last raise . Distasio told Gargiulo that he would
"take it up with Mr. Shepard." A few weeks later, according
to Gargiulo, she went to Shepard and asked him about the
raise . Shepard told the employee that "he did not think that
it was so long.... He would look into it." Gargiulo further
testified that she "went back to Distasio afterwards and
[she] asked him how come [she] didn't get the raise." Dista-
sio assertedly told the employee that she "wouldn't get a
raise as long as this union stuff was going on." Gargiulo
placed this latter conversation in March.
Shepard testified that during mid February employee
Gargiulo spoke to him about a raise. Gargiulo "informed
[Shepard] that her yearly anniversary date was up" and that
she had spoken to Mr. Distasio a few weeks earlier and had
not heard anything from him.... Shepard, according to
his testimony, did not speak to Gargiulo again about the
raise. Instead, Shepard assertedly told Distasio:
... we would not be giving her a raise, that she was
a very poor employee and that, in fact, if anything at
all, I would like him to find somebody else for that
position so that we could discharge her.
Shepard added:
31 Gargiulo also participated in the March 5 walkout and a written warning
was placed in her file.
703
I had spoken to [Distasio] earlier. Mrs. Gargiulo
worked approximately four to five hours a day ... and
I noticed that [her] work was not satisfactory, that the
dishes she was washing were not coming out as clean
as they should. I had complaints from some of the
nurses on this and I noticed it myself. . . . And I also
noticed that she couldn't finish in the same amount of
time, that the others who worked that early shift did
finish.... I told Vinny [Distasio] to speak to her to
see what he could do, to see if there was any way that
we could help to improve . . . [and] if we couldn't we
should get rid of her... .
Shepard acknowledged that Gargiulo's anniversary date
came due that February and, consequently, if management
"found [her] work satisfactory . . . [she] would receive a
raise" under the Employer's existing wage policy. Shepard
also acknowledged that Gargiulo was "one of the older
employees" at the facility; that Gargiulo continued to work
approximately 4 hours a day during March, April, and May
and, after the strike, she was offered reinstatement to an
8-hour-a-day job; and that during this entire period of time
other employees had been hired in the kitchen.32
Distasio testified that Gargiulo asked him for a raise dur-
ing mid-February; he spoke to Shepard that day about the
matter; 3 weeks later Shepard told Distasio: " . . . he wasn't
going to put it through because of her previous work rec-
ord"; and he, Distasio, agreed with Shepard. Distasio as-
serted that earlier, about December, 1970, he discussed
Gargiulo's work performance with Shepard, apprising
Shepard that Gargiulo was a "slow worker." Distasio assert-
edly spoke to Shepard again about the employee's work
between late 1970 and February 1971. Distasio testified that
after Shepard spoke with him in mid-February, he told Gar-
giulo "that Mr. Shepard didn't want to grant [the raise]
because of her previous work [and] until it improved she
wouldn't get one." Distasio denied referring to the "union
stuff," as testified by the employee. Distasio acknowledged
although he regarded the employee as "slow" before the
strike, he offered her an 8-hour-a-day job after the strike
with Shepard's approval; and earlier, about March, Shepard
had said to Distasio: "I want her out, get a replacement."
Distasio could not "recall offhand" whether he looked for
a replacement for Gargiulo commencing in March.
I credit the above testimony of employee Gargiulo as
substantiated in part by Distasio and Shepard. Insofar as
the above testimony of Gargiulo conflicts with the testimo-
ny of Distasio and Shepard, I find that Gargiulo's testimony
is more trustworthy. Further, in this respect, I discredit
management 's asserted reasons for withholding Gargiulo's
wage increase. I am not persuaded that the Employer per-
mitted Gargiulo to work as a dishwasher from about Febru-
ary or March to May some 4 hours a day, 5 days a week,
and, after the strike, reinstated her to an 8-hour-a-day job
although management had decided earlier to terminate the
employee because of poor work. Under the circumstances
32 The events attending management 's offer of reinstatement to Gargiulo
following the strike are discussed infra, section V.
704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(see subsection I, below), I am persuaded that management
told the employee that she "wouldn't get a pay raise as long
as this union stuff was going on" and withheld her raise for
this reason.
1. Daniel Donovan, Shepard and Distasio Talk to
Employees About a Union
Employee Andrew Gaura testified that he worked in the
Employer's laundryroom during 1971 and that he signed a
union authorization card on March 1. Gaura testified that
Darnel Donovan, Shepard, and Distasio visited the kitchen
area in the basement during late March,33 and that Dono-
van "asked [employees] Mamie Lee and John [Donohue]
why they wanted a union and they said they wanted better
working conditions." Gaura recalled that Distasio asked
him: `Why do you want one?" and Gaura replied: "Well, I
belonged to one in the aircraft [industry or plant], and wher-
ever there is one I always joined. . . . I learned union the
time my father was a coal miner." Thereupon, according to
Gaura, "Shepard looked at Donovan and he just shrugged
his shoulders and that was it.... .. 34
Employee Gertrude LaRoque testified that during
March, Daniel Donovan and Shepard "came down to the
kitchen and talked to us"; employees Mamie Lee, John
Donohue, and Andrew Guara were present; and Donovan
"asked Andy [Gaura] "what he thought of them [i.e . unions]
and [Gaura] said that they . . . were good and he had
always belonged to one." Shepard, Distasio and Daniel
Donovan denied the above conversations with employees in
the kitchen area 35 Distasio, however, as discussed below,
admittedly discussed the Union with Guara and employees
throughout the campaign.
The above testimony of employees LaRoque and Gaura
is in part mutually corroborative with respect to the particu-
lar incident. And, while the testimony is not totally clear in
all respects, I am persuaded that Distasio and Donovan
both made the statements attributed to them by the two
employees during their visit with employees in the basement
area. Distasio's like and related conversations with the em-
ployees are discussed below.
Employee LaRoque also testified that during late April
Distasio "asked [her] if [she] signed a union card and [she]
told [him] yes." LaRoque testified that Distasio "asked [her]
if the girls went out on strike, would [she] go and [she] said
yes." LaRoque testified that Distasio "asked [her] why [she]
wanted the Union" and she replied: "Better wages." La-
Roque placed this conversation, "just before the strike."
Employee Guara testified that during March Distasio
"told [Gaura that they] were very foolish and . . . were
wasting [their] time, that [they] wouldn't get any more any-
way whether [they] had a union or not." Gaura recalled that
33 Gaura explained that he was called into the kitchen from his post in the
laundry area by Shepard.
34 Gaura, in his prehearing affidavit, stated that Donovan spoke to him.
Gaura explained: ". . I may have said that it was Mr. Donovan at that
time," but he recalled "that it wasn 't Mr. Donovan , it was Mr. Distasio that
said it."
35 Distasio testified that on March 4 Donovan made a speech to the kitchen
help in the basement . Distasio asserted that he did not hear what was said
because he was using the toilet at the time.
during May, Distasio "started talking again about how fool-
ish [they] were, wasting [their] time. [Distasio] said, If they
want a union they can have one ... but not that one."
Gaura acknowledged that he and Distasio "were very
friendly" and often discussed "fishing and different things
like that."
Distasio testified that he "talked to [Laura] almost every
day" "mostly about fishing and things like that." Distasio
also testified that Gaura "told [Distasio] that he started a
union somewhere ... he was for them." Distasio assertedly
told Gaura that he "didn't like them [unions] that much
[and] . . . didn't like them in kitchens because [he] thought
they held back people." 36 Distasio also testified that he
spoke to employee LaRoque about the Union during April.
Distasio "asked her if there was a strike if she would go out
and she said to [him] that she didn't know." Distasio testi-
fied that he "was worried about staffing in the kitchen." 37
Distasio admittedly did not explain the "purpose" of his
questioning employee LaRoque. Distasio denied the other
statements attributed to him by LaRoque. Distasio ac-
knowledged that he was opposed to the Union; he expressed
his opposition to various employees including LaRoque,
Guara, and Lee; he "told [the employees] I didn't like
unions"; and he spoke to Gaura about the Union about four
or five times. Distasio stated:
I asked where he worked before, and he told me where
he was he started a union . . . he was one of the people
who started it. And I used to tell him I never liked
them.
On occasion other kitchen personnel were present during
the above conversations. Distasio also acknowledged talk-
ing to employee Lee about the Union. He testified, "I told
her that in kitchens ... I thought they would keep people
back since everybody would be starting off at the same
thing . . . chances for advancement would be hurt." Ac-
cording to Distasio, Lee "didn't say too much." Other em-
ployees could have been present, according to Distasio.
I credit the testimony of Gaura and LaRoque stated
above. Their testimony is mutually corroborative in part
and substantiated in part by Distasio. Insofar as the testi-
mony of Guara and LaRoque conflicts with the testimony
of Distasio, I credit the former as a more trustworthy and
reliable account of the statements made by Distasio to the
employees.
J. Shift Supervisor Lane's Conversations With
Employee Izzo
Employee Patricia Izzo testified that she worked on the
third shift during 1971; that she signed a union authoriza-
tion card on February 23; and that she was present at the
March 1 and 5 confrontations between the Union and the
Employer. Izzo testified that she had "many conversations"
with shift Supervisor Lane "concerning the Union." Izzo
36 Gaura was a laundry employee, Distasio, as stated , was in charge of the
kitchen.
37 Distasio placed this conversation a few days after the April 14 walkout,
which is discussed infra. He explained that he had been left short-staffed by
the walkouts.
NEW FAIRVIEW HALL CONVALESCENT ROME
recalled that during early March, Lane assertedly told Izzo
"that Mr. Shepard wanted to get rid of two people on this
night shift [and] . . . one is Joyce Jones.... " Jones, ac-
cording to Izzo, had special permission to report for work
30 minutes late each evening. Lane assertedly told Izzo, "to
talk to Joyce Jones about coming in at 11:30 p.m.," adding:
Well, now, you know, with this union, they could find
reasons to get rid of [Jones].
Izzo related Lane's warning to Jones and Jones, according
to Izzo, started reporting for work on time.
Izzo also testified that one evening at work, following a
union meeting which she had attended, Lane said to the
employee: "There was a union meeting tonight. Did you
go?". Izzo said: "Yes, I did." Lane then asked, "Well, why
do you want a union? What do your girls want a union?"
Izzo complained to Lane: " . . . Mr. Shepard just hired a
girl for $2.35. I've been here for three years. I'm making
$1.95 an hour." According to Izzo, Lane subsequently stat-
ed that she had related the employee's compalint to Shep-
ard. Izzo also testified that Lane stated during the above
conversation and on other occasions " ... You can be fired
for this. . . . " 38
Izzo testified that shortly after the representation hearing
in Boston, Lane told Izzo at the third floor nurse's station:
Mr. Shepard had known that the girls, ringleaders, had
started the union on the 7:00 to 3:00 shift and the 3:00
to 11:00 shift, but he couldn't understand who it was
on the 11:00 to 7:00shift. .. .
Izzo assertedly told Lane that she "had no idea about it .. .
Don't look at me." Lane replied: "The union has a squeal-
er," whereupon the two discussed who "the squealer" might
be.39 Izzo also testified that Lane told the employee: "this
union is going to let [her] be fired."
Izzo recalled that thereafter Lane again asked the em-
ployee why she wanted a union. Lane told the employee on
this occasion that Lane "didn't want a union because it
causes insubordination among the employees and the super-
visors.... " Izzo replied, "that was baloney." Again, Lane
assertedly told the employee: "You'll be fired. This stuff is
going to get everybody fired." Izzo also recalled that Lane
asked the employee: "Why don't you go to Mr. Shepard
with your problems instead of the union?" Izzo answered:
"Well, it's too late for Mr. Shepard. You know, now it's
going to be our way."
In addition, Izzo recalled that on the evening before the
strike (discussed infra ), Lane stated to the employee in the
presence of coworker Virginia Pope: "I don't know [what]
good [this time book] is going to do me if there is a strike."
Izzo assertedly told Lane that there would be no strike. Lane
responded:
You think so? . . . This could cause you to lose your
38 Izzo placed the above -conversation in the second floor lounge. She
recalled that Nurse Schuman and Aides Eleanor Schappa and Frances Tnca-
so were also present.
39 According to Izzo , the only reference to this person was the fact that she
was "a blonde."
705
job, you'll be fired, and you'll never see a union in here.
Mr. Donovan will put that big lock on the door... .
He'll put a lock on the door before any union gets in
here. 4b
Employee Eleanor Schappa testified that she signed a
union authorization card on February 25. Schappa recalled
that during late March employee Izzo was discussing the
Union with Supervisor Lane in the break room on the sec-
ond floor in the presence of "other girls." Schappa heard
Lane say, "that if we got involved in it or joined it we'd lose
our jobs." 41
Employee Frances Tricaso testified that she signed a
union authorization card on February 24. She recalled over-
hearing Lane say to Izzo and others in the break room
during late March: " ... If we all walked out we would be
fired." Tricaso explained that she did not hear the entire
conversation.42
Supervisor Lane testified that Nurse Schuman, Aides
Izzo and Schappa, and herself discussed the Union during
late March. According to Lane:
We were discussing the Union. Mrs. Schuman stated
that she didn't believe in unions especially in convales-
cent homes and I [Lane] went along with her and said
I didn't either. Even though I [Lane] had belonged to
a union in a large hospital I didn't believe in unions in
a small place like that.
Lane assertedly "told the girls" that if she "was a nurse's
aide . . . making $1.90 or 1.95 an hour, [she] would proba-
bly go along with them. But, because [she] was a registered
nurse . . . it was out of the question.... " According to
Lane, the employees told her: "they felt that was the only
way they could get better benefits and more money, by
having a union bargain for them." Lane claimed that em-
ployee Izzo stated that she, Izzo, "really didn't believe in
unions and was against it.... " Lane further testified that
Izzo complained about a nurse's aide who had been hired
at $2.35 an hour. Lane later discussed this complaint with
Shepard and, according to Lane,
The next time we were sitting around talking I [Lane]
did tell the girls that the girl [the newly hired aide] had
lied . . . she was making the same amount as the other
aides.
40 On cross-examination, Izzo acknowledged that she had worked with
Lane about a year and it was common practice for night-shift personnel and
Lane to sit and eat together Further , it was established that Izzo's prehearing
statement made no reference to "any conversations . [with] Mrs Lane
... [pertaining] to threats being made, or loss of job or anything like that."
Izzo explained that she first mentioned these conversations with Lane to
counsel for General Counsel on a later occasion when specifically asked if
anyone "had talked to [Izzo] , including Mrs . Lane.. . " Izzo acknowledged
writing an article appearing in The Modern Times, which stated, inter aim,
that Izzo was "one of the last to sign a Union card" and "never went to a
Union meeting until the end ." Izzo explained that her references to "last to
sign" and "until the end" are to the end of the initial period of organizational
activity.
41 Schappa acknowledged on cross-examination that her early prehearing
statement made no reference to "any conversation that [she] had or over-
heard that Mrs Lane talked to the girls. . " Schappa explained that she
"wasn't asked about it" and , in a later prehearing statement, referred to Lane.
42 The testimony of employee Virginia Pope pertaining to Lane is discussed
supra , section II, E.
11
DECISIONS OF NATIONAL LABOR RELATIONS BOARD706
Lane acknowledged that she "probably did" ask Izzo
"why she wanted a union." 43 And, Lane acknowledged
telling Izzo:
A union would not be very beneficial to me [Lane] or
the nurses.... We wouldn't have the right to tell them
what to do.
Izzo assertedly responded that "this was ridiculous." Lane
acknowledged that she repeatedly told the employees, in-
cluding Izzo , to go to Shepard with their problems. Accord-
ing to Lane:
They constantly said, they wanted the union because of
the money and the benefits , and I [Lane ] said why don't
you go and talk to Mr. Shepard and see if you can't
straighten the thing out with him . They said they
wouldn 't get any place with him . I said why don't you
try. They never did.
Further, Lane recalled that on the evening before the strike,
she said to Izzo: " . . . if there's going to be a strike tomor-
row I don't know what the sense is of worrying about the
time sheets because probably nobody will be here." Izzo
assured Lane that there would be no strike . Lane denied the
various other statements attributed to her. Lane explained:
I didn't actually approach [the nurses' aides], but dur-
ing coffee breaks and sitting around talking every once
in a while the subject of the union would come up and
I would ask what's new or is there anything going on
that would be [of] interest.
I credit the testimony of employee Izzo summarized
above . Her testimony is corroborated in part by the testimo-
ny of employees Pope (see section II, E, supra ), Schappa
and Tricaso , and is substantiated in part by the testimony
of Lane . Insofar as the testimony of Lane conflicts with the
testimony of Izzo as stated above , I find that Izzo's version
of the various statements made to her by Lane is more
accurate and complete.
K. Director of Nurses Boecker Discusses the Union with
Employees Tierney and Novicki
Employee Louise Tierney testified that between mid- and
late March Director of Nurses Boecker made the following
statements to Tierney at the second floor nurses' station:
Mrs. Boecker said that she knew that we were trying to
get a union in the home, and probably it wouldn't be
everything that we thought that we would get when we
got the union in, if we did. She [Boecker] said, first of
all, "You won't have a half-hour lunch period any more
if you get the union in, you won't have a 15-minute
coffee break. It would probably be half of that. And
43 In addition, Lane recalled that employee Joyce Jones was permitted to
report to work 30 minutes late from about January to March. In March, Lane
assertedly "was told to see if Joyce couldn't make other arrangements .. .
and come in earlier .. " Lane, however, denied discussing this subject
with Izzo.
you won't have the benefits that you think that you are
going to have," and if we were set on getting a union
in, that we were going to do it anyway and not listen
to what she had to say about the union . . . we would
be sorry.
Tierney explained that at the time the employees had a
15-minute coffeebreak and a half-hour lunch period.
Boecker denied having such a conversation with Tierney.
Employee Rachel Novicki testified that she signed a
union authorization card on February 16 at the first union
meeting in coworker Tierney's residence. Novicki recalled
that during late April, Nurse Santiamo read off the list of
work assignments that day for the various aides. According
to Novicki, Santiamo said: "Andyou [Novicki] have to mop
floors." Novicki testified that she had never been asked
before to do that job and,' consequently, told Santiamo: "
I was hired as a nurse's aide and not to mop floors."
Santiamo replied: "Now, you have to mop them." Novicki
refused. About 30 minutes later, Boecker-according to
Novicki-"stopped the employee in the hall and stated:
"she [Boecker] didn't like my [Novicki's] attitude toward
Mrs. Santiamo." Novicki respondented that the employee
"didn't like her [Santiamo's] attitude either." Boecker told
Novicki: "Well, now you have to mop floors." Novicki
assertedly responded: "All right. If you say I have to mop
floors, I'll mop floors...: . Boecker then asked Novicki:
"Do you think the union is worth going through all this
trouble?" In response, Novicki related her complaints to
Boecker and,
[Boecker] said she would get after her nurses , and see
what could be done about the problems.
Novicki then observed Boecker "go talk to Mr. Shepard."
Boecker testified that during late April she "approached"
Novicki in response to a "complannf ' from Santiamo.
Boecker testified:
[Santiamo] had asked Mrs. Novicki to perform a cer-
tain chore and Mrs. Novicki had refused to do so.
According to Boecker:
Mrs. Novicki stated that she was told to mop a spill that
had occurred on the floor and that she was a nurse's
aide and she was not going to do this. I [Boecker] in
turn told her [Novicki] that even though the girls were
more or less involved in union activities that we were
going to continue the routine that we had continued in
the past whereby, if there was a small spill that had
occurred . . . and if the houekeepers or maintenance
people were busy . . . that we would just pick up a mop
and wipe the spills so as to avoid any injury... .
Boecker also testified that Novicki became "rather upset,"
whereupon Boecker said: "Is the union worth all this aggra-
vation?" In response, Novick then related her complaints to
Boecker 44 Boecker admittedly told Novicki that she,
Boecker, "would investigate these complaints and try to do
44 Boecker characterized these as "chronic complaints that have been prev-
alent in the home for a number of years, [concerning] shortage of linen .. .
supplies . [and] supervisors .. .
NEW FAIRVIEW HALL CONVALESCENT HOME
what [she] could to rectify some of them." as
Novicki's testimony summarized above is substantiated
in large part by- Boecker. Insofar as Boecker's testimony
conflicts with Novicki's testimony, I credit the latter's testi-
mony as a more accurate and complete account of the inci-
dent. As for Tierney's testimony, as stated above, Boecker
generally denied that the particular conversation took place.
However, I note that, among others, employee Pace credi-
bly testified to related statements made by Boecker to Pace
(see supra, section II, Q. Under the circumstances, I am
persuaded that Boecker also made the above statements
attributed to her by Tierney.
L. Night Shift Supervisor Dennison's Statements to the
Employees; Wilmot's Statements to Employees
Employee Delores Dean testified that during mid-April,
Nurse Integlia "called a meeting" of the aides while they
were eating supper in the nurse's sitting room. According to
Dean:
Mrs. Integlia called a meeting with the girls [while] we
were sitting down having our supper. And she [Integlia]
said that she wanted to discuss . . . how we didn't get
along with Mrs. Dennison and things like this. And she
[Integlia] called Mrs. Dennison into the room and they
[Dennison and Integlia] were talking back and forth.
And then after Mrs. Integlia was all through she [Integ-
lia] brought up that her husband was in the Union for
the fire department and it wasn't what he thought it
would be after he had joined. . . . And she [Integlia]
says that we would have to think about joining the
union because if we got the union in here things would
be a lot worse than they were. And-she [Integlia] turned
to Mrs. Dennison'and . . . said to Mrs. Dennison, "Am
I right," and Mrs. Dennison said, `Yes." That if we did
get the union. in here we would lose everything we had,
such as our benefits, like our holiday time, our sick pay
and whatever other kinds of benefits we had.46
Night Shift Supervisor Dennison testified that during last
April:
Mrs. Integlia asked me to come into the sitting room
for a cigarette, which I did. And she [Integlia] began a
conversation by [saying], "Let's all get this out into the
open."
Dennison recalled that Aides Dean, Paluha, Buzzin, and
Clough were present in the sitting room during this incident.
Dennison continued:
She [Integlia] proceeded to tell us that her husband was
a fireman, and . . . he could not cross a picket line. But
45 Boecker's other discussions with employees concerning the Union are
summarized in sections II, C and II, E, supra.
46 On cross-examination, Dean explained that Integlia called this meeting
"because Mrs. Integha figured that if we had any problems we should get
them out in the open." These "problems," according to Dean, related to the
fact that "Mrs. Dennison and Mrs. Wilmot argued back and forth and the
girls getting involved." According to Dean, Dennison, and Wilmot "both
wanted to be in charge."
707
because we were registered nurses . . . we would have
to cross a picket line whether we wanted to or not. She
also stated that she felt that the girls had a right to fight
for what they wanted.
Dennison testified that she also spoke up in the sitting room.
Dennison assertedly stated to the employees:
Did you people know that if another Home went out
on strike with this particular union in it . . . they [the
employees] had to picket? And if they did not picket
they would be penalized by a certain percentage of
their pay.......Would a pay raise compensate for
the amount of money they would have to pay for union
dues.
Dennison did not "remember" whether Integlia told the
girls "that if the union got in things would be a lot worse
.... " Dennison denied the various statements attributed
to her and Integlia by Dean.
Employee Dean's testimony that the above incident oc-
curred is substantiated in part by Dennison. And, under the
circumstances (Wilmot's related conduct is discussed be-
low), I am persuaded that Integlia and Dennison made the
statements attributed to them by Dean.
Employee Dean also testified that about the second week
in April Beverly Wilmot made the following statements to
aides in the sitting room:
Mrs. Wilmot came in and she said that we were pretty
silly to want to have a union in here when things were
going real smooth as they were. And that we had better
sit down and think it over before we decide what we are
going to do. And, the girls told [Wilmot] that it was
none of her business. And we walked away.47
Employee Marie Conroy testified that during late March
Wilmot stated to Conroy at the nurse's station: "Marie, do
you know this union is going to take everything from you."
Conroy assertedly responded: ". . . I'd rather not discuss
anything about the union with you," and Conroy walked
out of the nurse's station. Conroy further testified that Wil-
mot "started off [this conversation by stating,] how by hav-
ing a union it would take all our benefits.... " Conroy
recalled, Wilmot "did say they were a bunch of crooks,"
referring to Local 1199. Conroy, after being shown her pre-
hearing statement, acknowledged that she was "confused"
as to what specifically was said.
Employee Paluha, whose earlier conversation with Wil-
mot about the Union is summarized in section II,' E, supra,
also testified that she had "several conversations" with Wil-
mot throughout the organizational campaign as One eve-
ning during April, according to Paluha, Wilmot told the
employee at work that Wilmot had turned the employee's
name into Boecker "as being one of those against the
4' Dean recalled that Wilmot also said "that the union wasn't what they
said. . they would promise you things and you wouldn' t get them." Coun-
sel for General Counsel asked Dean if she recalled "any mention of the
subject of benefits?" Dean answered: Wilmot "said we would lose our bene-
"fits."
48Paluha explained that she "used to give [Wilmot ] a ride home [and
Wilmot] used to ask [Paluhal questions "
708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union." Wilmot told Paluha that the antiunion workers
"were actually in the majority"; that "there were only a few
troublemakers that were for the Union"; that "if we try to
unite against them we wouldn't have all this trouble"; that
employees Dean and Nugent "were troublemakers and [Pa-
luha] shouldn't follow their lead"; and that Dean and Nu-
gent wanted the Union "to protect them" because they
"weren't good workers."
I credit the undenied testimony of employees Dean, Con-
roy, and Paluha summarized above. Their testimony is in
part mutually corroborative of Wilmot's antiunion efforts.
I find that Wilmot made the statements attributed to her.
(As for management's responsibility for Wilmot's conduct,
see infra, section VI).
M. The Union's April 14 Confrontation With Management;
Shepard's Statements to the Employees Concerning Their
Participation in the Walkouts and Attendance at the Repre-
sentation Hearings
As noted, Board-conducted representation hearings were
held in Boston on April 1, 7, and 13. Administrator Shepard
testified that about 7 a.m. on April 14 some 13 to 15 on-duty
employees left the home and "paraded around" in the park-
ing lot. Off-duty personnel were also present . Shepard re-
called that the on-duty employees who participated in this
walkout returned to work that day shortly before 10:30 a.m.
Shepard observed Union Representatives Brown, Ciulla,
Ward, and Seelig in the parking lot area. Shepard explained
that about 10 a.m. Seelig and the on-duty employees ap-
proached the entrance to the home. According to Shepard:
Mr. Seelig came with all the employees [to the front
door] and I [Shepard] told Seelig that I wanted, [him]
and the employees to leave the property of New Fair-
view. . . . [Seelig] said, "does this mean all the employ-
ees?" and [Shepard] said, "no, only the off-duty
employees" and that's really about it.
Shepard also recalled that Seelig "again reiterated the fact
that there would be more of these job walkouts unless the
employees got the quick election they wanted." No permis-
sion for such a meeting had been requested by the Union
or the on-duty employees. And, on April 19, counsel for
Respondent sent a letter to the Union, stating in part:
On behalf of our client, New Fairview Hall Conva-
lescent Home, we strongly protest and condemn the
action taken by your Union in instigating and partici-
pating in another work stoppage by employees of New
Fairview Hall on April 14, 1971.
You have once again demonstrated your total disre-
gard for the health and safety of the patients of New
Fairview and have displayed your utter contempt for
the State statute specifically prohibiting such conduct.
We also deplore the threat made by Mr. Seelig that
if New Fairview does not accede to your wishes, it can
expect a reoccurrance of this unlawful behavior. Please
understand that a repetition of this senseless and reck-
less action will serve no purpose as New Fairview Hall
Convalescent Home will not be intimidated.
Union Representative Brown testified that he "recalled"
a meeting at 7 a.m. during April when he went "to the
nursing home with Mr. Ciulla and [was] barred from enter-
ing the nursing home." Brown claimed that his "memory is
unclear on that" incident.
I credit Shepard's testimony stated above. Moreover, al-
though Seelig is now deceased, I have carefully scrutinized
Shepard's testimony pertaining to Seelig's April 14 state-
ment and I am persuaded that Seelig made the statement
attributed to him by Shepard.
Respondent, in its postheanng brief (p. 143), states in
part:
The Employer readily concedes that it orally repri-
manded employees who left their work stations and
engaged intermittent work stoppages, and also threat-
ened them with discipline for engaging in such con-
duct. In addition, it posted two notices in the facility
to this effect ... docked "on-duty" employees for time
not worked during the walkouts . . . and placed writ-
ten warnings in the personnel files of all such employ-
ees.... [See section II, G, supra]
Thus, according to employee Joanne Smith, during late
March while employees Smith and coworker Lucy Abbat-
tello were cleaning Shepard's office, Shepard "show[ed] [the
two workers] state statute cards forbidding . . . state hospi-
tal employees . . . to strike . . . and he said it had already
happened twice in two walkouts and . . . if it happened
again he would have to take disciplinary action." 49
Employee Mary Ann Pace testified that "after the second
walkout" Shepard approached a group of employees in the
basement near the laundryroom, and said:
You knew what you are doing is wrong, and I have to
tell you that if there is a third walkout, there'd be action
taken.
According to Pace, employee Tierney "came towards the
group," and Shepard "turned to her and stated the same"
thing. Tierney, according to Pace, replied: `Well, is this a
threat?" Shepard said: "No, I'm just warning you." Pace
recalled that employees Grace Betzner, Rachel Novicki,
Eleanor Douglas, Molly Arabo, and Winnie Rubino were
also present during the above incident so
According to employee Arabo, Shepard asked the em-
ployees in the basement, "how many of you did go out?"
Some girls said, "once." Arabo assertedly said, "twice."
Shepard replied, "Well, the third time you won't come
back." On cross-examination, Arabo acknowledged that
Shepard had said that continued walkouts may meet with
49 As requested by counsel for Respondent, I take notice of section 31-
l I la of the Connecticut statutes, which language was assertedly copied on
the cards used by Shepard. The statute says.
No employees of an employer licensed by the state department of health
under Section 19-32, or their representatives, or any other persons shall
engage in or induce or encourage, or attempt to engage in or induce or
encourage , any strike, work stoppage, slow down or withholding of any
goods or services by such employees or other persons at the institution
where they are employed. .
so On cross-examination, Pace explained that Shepard said to Tierney: I'm
glad that you are here and I'm going to repeat what I told the girls.... [If]
there was a third walkout there would have to be disciplinary action... .
NEW FAIRVIEW HALL CONVALESCENT HOME 709
disciplinary action. Arabo testified that she participated in
a third walkout.
According to employee Panay Adorno, Shepard told em-
ployees in the basement during late March: "we walked out
twice and ... if it happened again . . . he would be forced
to take action and let us go." Adorno recalled that "Shepard
directed his comments ... to people who had walked off
when they were on duty." Adorno participated in the third
walkout.
Employee Tierney testified that during late March, Shep-
ard said to Tierney in the basement:
Employee Grace Betzner testified that she was off duty
during the March 5 and 25 confrontations. Betzner recalled
that later, during March, she was told to go to Shepard's
office. Boecker was also present. According to Betzner:
[Shepard] told me [Betzner] . . . I had been on the
property when I wasn't working, that I was trespassing.
He said it was illegal. I shouldn't have been there. He
asked me why I was there. I said I heard there was a
meeting.
he wanted to warn me not to participate in a third work
stoppage or walkout.
Tierney explained: "I don't know which way he phrased it
... if I did participate in a third work stoppage . . . he
would have to seriously consider terminating [me].... "
Tierney asked Shepard, "if he was threatening" her and
Shepard said, "No, it was just a warning." Tierney testified
that she later participated in the third walkout on April 14.
On the next day, April 15, Director of Nurses Boecker asked
Tierney to go to Shepard's office. Boecker was also present
in the office. According to Tierney:
Mr. Shepard told me that I [Tierney] had been warned
before not to participate in a third work stoppage and
because I had, he was going to' have to take drastic
steps and maybe possibly terminate me, and he said
that he hadn't reached any decision yet, that he would
get back to me on it.
Employee Delores Dean testified that Shepard called her
to his office during late March or early April. According to
Dean:
Shepard asked me how come I never came to him
before. And I told him that I did.... And then .. .
he handed me a piece of paper ... [Shepard] told me
that I had participated in the walkouts and that I was
to read the paper and I was to sign it. I [Dean] told him
I couldn't, and he said, well if I didn't sign it that would
cause me to be fired.
Dean further testified:
While I was reading the paper, Mr. Shepard brought up
the union and asked me didn't I think the place was
running smooth without a union. And that if a union
got in the place wouldn't run smooth anymore and we
would lose our benefits, such as our holiday and our
sick pay.
Dean assertedly "didn't answer him . . . and signed the
piece of paper and . . . walked out." Dean claimed that she
was not on duty during the March 5 and 25 walkouts. Dean
was never given a copy of the paper which she signed in
Shepard's office. According to Dean, the paper said: ". . .
I had participated, in the walkouts and . . . he would have
to take disciplinary action against me." Dean acknowledged
that no disciplinary action was "ever taken against [her] for
walkouts," and that she had engaged in a walkout in April.51
He said I didn't belong on the property unless I was
working, that he didn't want me on the property, and
if it happened again he would have to let me go.
Betzner also recalled:
[Shepard] said ... "did you go up to the desk with the
other girls?" I [Betznerl said no, I did not.
During this meeting, Shepard attempted to confirm from
Boecker whether Betzner in fact had walked up to the desk
after she entered the premises during the last confronta-
tion.52
Employee Linda Alger (Fafard) also testified that during
April:
I [Alger] was called into the office ... the afternoon
that we had the walkout. . . . [Shepard] told me .. .
he couldn't allow these demonstrations to continue and
if I did it again that I would be definitely suspended.
And then he went on to say that the only reason they
were against the union was because the hospital
wouldn't be flexible with the girls as they had in the
past.
Shepard testified that during late March he spoke with
employees Smith and Abbattello while they were cleaning
his office. According to Shepard, he gave them index cards
with portions of the State statute printed on them, and asked
the workers to read the cards. Shepard assertedly told the
employees:
... by leaving the building it was an unlawful and
immoral act and we did not wish to see this continued
.... and I [Shepard] went on to tell them that we
would, if this occurred again, we would take discipli-
nary action and we would consider discharge.
Shepard also testified that he spoke to employees Pace,
Arabo, Adorno, Tierney, "and a few other aides in the
basement near the laundry room." According to Shepard:
I called them all together and told them that, for those
51 According to Shepard , Dean's personnel file had been "misplaced."
Shepard produced a particular reprimand which the employee had signed,
discussed below.
52 Betzner acknowledged that following the above conversation with Shep-
ard she participated in a walkout while on duty ; Betzner also acknowledged
that her prehearmg statements made no mention of the above conversations
with Shepard.
710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
who had taken part in the first walkout the previous
day, that was an unmoral and illegal act, that we did
not wish this to go any further and that if they took part
in a second walkout we would consider disciplinary
action.... [As] for those who took part in the second
walkout ... we would take disciplinary action if it
occurred again and we would consider discharge.
In addition, Shepard recalled that employee Tierney walked
over to the group, whereupon he "told her too that it was
an illegal and immoral act; that we didn't want to have this
continue and that if she took part in another walkout we
would take disciplinary action and we would consider dis-
charge." ss
Shepard testified that he spoke to employee Alger (Faf-
ard) during the afternoon of April 15. According to Shep-
ard: "I told her that if she did come into our property that
she was trespassing and that I didn't want her on the proper-
ty again when she was not on duty. I asked her what her
parents would think if she was arrested for trespassing and
I believe she told me her parents were entirely in favor of
what she was doing." Shepard "then told her that we didn't
want her on [the property] any more. [He] also asked her if
she had proceeded down the hall towards the nursing sta-
tion. And she said that she had not . . . [and] that was the
end of the conversation." Shepard denied mentioning the
subject of discipline or discharge and the various other
statements attributed to him by the employee.
As for Tierney, Shepard testified:
I would have had more than one [conversation] with
her. I saw Mrs. Tierney . . . after the first walkout .. .
and I told her what I had told the others before, that
it was an illegal and immoral act and we did not want
it repeated and if there was any repetition we would
consider disciplinary action. . . . [After the second
walkout] I told her there would be disciplinary action
and we would consider discharge... .
Shepard further testified:
On April 15, I called Mrs. Tierney to the office and
Mrs. Boecker . . . was in the office also, and I told Mrs.
Tierney that she had participated in three walkouts and
that we would. . . take disciplinary action, and that we
were in the process of considering what the disciplinary
action would be and we would let her know in a couple
of days.
As for Betzner, Shepard testified that she left her duty
stations on March 5 and 25 and was not on duty during the
April 14 confrontation. Shepard called Betzner to his office
on April 15. Boecker,was also present. According to Shep-
ard:
I told her that she came into the building the day before
... she was trespassing on private property, that she
was not on duty, and when she was not on duty we did
not want her on the property. . . . And I told her if this
occurred again we would summon the police and have
her arrested for trespassing... .
Shepard also confirmed that Betzner in fact did not walk
"down the hall to the nursing station" on April 14 when she
entered the home. Shepard denied discussing discharge or
discipline with Betzner. Shepard also explained that prior to
March 1:
... off-duty employees would enter the Home to pick
up paychecks.... They would also come in . . . to
visit their family . . . because some of the off-duty
employees had members of their families as patients in
the Home. Some of them ... would . . . visit the other
patients. They would come in to talk to the nursing
staff, the particular supervisors, and they would come
in to check time sheets and things of this nature... .
Shepard acknowledged that prior to March 1 the Company
had no rule prohibiting off-duty employees from entering
the premises. Shepard added, however, that there had never
been an occasion prior to March I when off-duty employees
entered the home in groups of 15 to 20.
As for Dean, Shepard explained that he issued the follow-
ing reprimand to the employee, which she signed:
On April 1, 1971 although you were scheduled to
report to work you did not do so. Furthermore your
refusal to report to work was without legitimate reason
and in direct disobedience of our specific instructions
that you report to work.
You are hereby given warning that in the event of a
reoccurence of this or similar activity we will be forced
to take strong disciplinary action.
/s/ Robert M. Shepard
I acknowledge receipt of this warning and under-
stand that it will be made a part of my personnel folder.
A few days later, Shepard was asked by Tierney and several
aides in the second floor lounge, "if we had considered what
the disciplinary action would be." Shepard "told them there
would be no disciplinary action." And, as Shepard ex-
plained, no "disciplinary action" was taken against any of
the employees who participated in the walkouts except for
"docking" their pay for lost on-duty time.
53 Shepard denied, inter alia, telling the employees in the basement that,
if they walked out a third time, he would be forced to take action and let them
go. Shepard asserted that he, with the assistance of counsel, "had written
those words down so [he] would make sure that the exact words were used
each tune." Shepard did not recall Adorno saying anything in the basement
meeting.
/s/ Delores Dean
Shepard further testified that prior to the April 1 representa-
tion hearing,
Either Mrs. Boecker or myself advised the employees
that if they were not already off that day we would try
to arrange to have them off, and we allowed them to
try to arrange [a day off] among the other employees
.... We told them that if this couldn't be arranged
that we thought they should work that day.
In short, Shepard assertedly was unable to give all the aides
NEW FAIRVIEW HALL CONVALESCENT HOME 711
time off that day. And, at the representation hearing in
Boston on April 1, Shepard noted the employees present. In
Dean's case, he noted that she was at the hearing although
her mother had called in claiming that the employee was ill
that day. No warnings were given to employees who were
scheduled off that day or who had arranged to be off.54
Further, Shepard explained that the above reprimand is the
only reprimand which he asked Dean to sign. He denied
threatening Dean with discharge if she did not sign; he also
denied discussing work stoppages, fringe benefits, and the
various other subjects related by Dean.55
As the above summary of testimony shows, man-
agement's version of the various incidents recited in this
section is substantiated in part by the employees' testimony.
There are, however, some conflicts. Thus, with respect to
Shepard's conversation with Smith and Abettello in his of-
fice, Shepard's version and Smith 's version of the incident
are essentially similar. Insofar as the two versions differ, I
find that Shepard's recollection stated above is more com-
plete and accurate. Likewise, Shepard's version of his state-
ments to a group of employees in the basement is in large
part substantiated by testimony of the employees who were
present. I am persuaded that Shepard, in speaking to the
employees in the basement, carefully _ adhered to his
counsel's advice on what to say to employees about the
walkouts. Consequently, insofar as Shepard's testimony
stated above conflicts with the testimony of employees
Pace, Arabo, Adorno, and Tierney as to what was said in
the basement, I find that Shepard's version is more accurate.
Likewise, as for Shepard's conversations with Tierney and
Betzner in his office and also in the lounge as stated above,
insofar as the employees' testimony conflicts with the testi-
mony of Shepard, I find that Shepard's testimony is more
accurate. And, as for Alger's testimony and Dean's testimo-
ny recited above, I am persuaded that Shepard's recollec-
tion of these particular incidents is more accurate than the
employees' version. (Alger's other conversations with Shep-
ard and Boecker are discussed infra, section II, N).
N. Boecker's and Shepard's Conversations With Employee
Alger, Shepard's Conversations With Employee Stopka
Employee Linda Alger (Fafard) testified that she was
hired at the home during early April 1971, and that she
signed a union authorization card on April 9. Alger testified
that during her interview in early April, Boecker questioned
Alger in the office. According to Alger:
about the union, and I [Alger] told her "yes", and she
asked me what I thought, what nay opinion of it was,
and I told her that I didn't know really enough to have
any sort of opinion about it.
In addition, Alger recalled that Boecker said: " . Well,
if you find out anything that you think might be helpful to
me I wish you would tell me." 56
Alger also testified that during late April, she was called
to Shepard's office. Boecker was also present. According to
Alger:
Mr. Shepard asked me [Alger] if I had heard any-
thing about the Union. And, I told him, "yes, I had
been talking to a few people about it." . . . [Shepard]
wanted to know who had been talking to me about it,
who had been sort of pushing the union among the girls
the most. And I told him that I didn't think it was fair
for me to name people to him... 57
During this conversation, "Boecker said that she thought
[Alger] was being disloyal to her."
Shepard testified that on April 15 he spoke with Alger
about her participation in the April 14 confrontation (supra,
section M). Shepard did not "recall a second meeting with
Linda Alger." Shepard did not "recall" showing Alger the
particular handbill publicizing an alleged bribe offer. Shep-
ard did not "recall" asking the employee "if' she had heard
anything about the Union." Shepard further denied the var-
ious statements and conduct attributed to him by Alger. In
addition, Boecker testified that she interviewed employee
Alger; that it was "just a routine interview"; and that
Boecker could not "recall" "specific things that were said
... outside of routine things in reference to her job."
Boecker denied discussing the Union with Alger and the
various statements attributed to Boecker by the employee.
Employee Sharon Stopka testified that she signed a
Union authorization card on April 28. About May 4, ac-
cording to Stopka:
Mr. Shepard asked me [Stopka] if I liked where I was,
and I told him I did, and he asked if I had better
benefits where I was before, and I told him I did. And
he asked me did I get along with the other workers here,
and I told him I did. And then he asked me did I see
a union leaflet. And I told him no. So he went out to
the office . . . he came back with a piece of paper .. .
and asked me to read it. . . . he asked me if I under-
stood what it was, and I told him I did.
... she [Boecker] asked me if I had heard anything
Si Shepard explained that less than six employees received warnings similar
to the one admittedly given to Dean.
55I note that the personnel folder of employee Marcia Twarkins contains
a notation:
April 15, 1971. Miss Twarkins was served a subpena by the Union
through the NLRB to testify at the hearing She was on duty at the time
Also, the personnel folder of employee Genny Cicarelli contains a notation:
On March 31, Mr. Shepard spoke to Genny and told her she was needed
at the nursing home on April 1. She was told it was not possible to fill
in for her and that if she went to Boston on that day disciplinary action
would be considered. She stated she was going anyway.
Cicarelli and other employees were given written reprimands similar to the
one given to Dean.
During this conversation, according to Stopka, Shepard ex-
plained to the employee:
... they usually hired the people at $1.80 an hour, but
since I had experience he could probably get me a dime
raise.
56 Alger's prehearing statement makes no reference to Boecker 's alleged
statement that the employee should report back to Boecker what she heard
about the Union.
57 Shepard assertedly questioned the employee about a "leaflet that was
being passed out" concerning an alleged bribe offer to an unidentified em-
ployee (discussed infra, section II, 0). Alger claimed that she did not know
anything about the leaflet and who the unidentified employee was
712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thereupon, Shepard,
... asked me [Stopka] if I knew who Dan Donovan
was ... did Dan Donovan ever talk to me about the
union leaflet or about joining the union. And I again
told him I didn't know who [Donovan] was.
Stopka continued:
And then he [Shepard] told me that some workers there
had been doing a lot of talking about the union. Did
I hear anything about the union? And I told him I did.
... And he said he wouldn't ask me for a name be-
cause it was my privilege to keep it. And then he men-
tioned Dolores Dean was passing out union cards and
talking about the union. "Did she talk to me about the
union?" And I didn't say anything. And he said it was
his guess that she [Dean] had already talked to me
about the Union. And I still didn't say anything. And
he told me if I had any questions about the union I
should ask him or Dan Donovan because he didn't
think anybody else could give me a straight answer.
Shepard testified that he "called [Stopka] into [his] office"
on May 4 in order to investigate the alleged bribe offer as
publicized in a union circular (discussed infra, section II,
0). Shepard testified:
I told her that she had the right to speak to me or not
to speak to me, that she could get up and leave the
room any time she wished.... I showed her the circu-
lar . . . and asked her if she had seen it before ... and
if she knew anything about this.
Shepard added:
... in the course of our conversation, since this was
one of the first times I had an opportunity to speak to
this young lady, I asked her how she was doing, wheth-
er she enjoyed working at the nursing home, and she
went on to tell me that . . . she had worked at another
nursing home, the Heritage House, for approximately
six months and she believed that other girls who had
worked for that long ... were hired in at a rate 10
cents an hour more than she was receiving.
Shepard questioned the employee about her hourly rate and
told her "that if she had worked for six months in another
nursing home ... there had been an error . . . and she
maybe should be receiving the additional 10 cents . . . and
that [he] would look into it." Shepard denied the various
other statements attributed to him by Stopka. Shepard ac-
knowledged that'Stopka did not start working until April
19 58 According to Shepard, "somehow or other, I heard a
rumor that she might know something about" the bribe
offer and circular. Shepard acknowledged that Stopka did
not get the 10-cent hourly raise because of the ensuing
strike.
I credit Alger's testimony concerning her interview with
Boecker and her later meeting with Shepard and Boecker in
Shepard's office as stated above. In the context of Boecker's
like and related conduct, I am persuaded that Boecker made
the statements attributed to her by the employee on both
occasions. Likewise, I find that Shepard made the state-
ments attributed to him by the employee. Further, I credit
the testimony of employee Stopka pertaining to her conver-
sation with Shepard. Under the circumstances, I do not
believe that Shepard limited his interrogation of this newly
hired employee to an investigation of an alleged bribe offer.
Rather, I find that he made the statements and engaged in
the conduct summarized above.
0. The Alleged Bribe Offer and the Discharge of Employee
Tierney
Louise Tierney started working for Respondent as a
nurse's aide during 1968. As shown above, she was- chiefly
responsible for the Union's organizational drive at
Respondent's nursing home. She initially solicited the
Union's assistance and thereafter actively and openly sup-
ported the Union's campaign. And, during the April 1, 7,
and 13 representative hearings, she sat at counsel table with
the union representatives.
Tierney testified that on Thursday, April 15, she was
assigned to work as an aide on the third- floor. According
to Tierney, aides from the second and third floors would
take a break from about 9:15 to 9:30 a.m. in the second floor
lounge. At the end of the break, the aides would generally
take the elevator from the second floor to the basement,
pick up their linen supplies and return to their respective
duty stations. Tierney testified that she followed this routine
on the morning of April 15. She recalled that employees
Grace Betzner, Cynthia Bernard and Eleanor Douglas were
also present in the second floor lounge during the break.
At the end of the break, Tierney recalled that she used the
nearby toilet facility and then waited for an elevator on the
second floor to take her to the laundry room in the base-
ment. Tierney explained that her co-workers were not pres-
ent at this time. Tierney testified:
... the elevator door [on the second floor] opened and
I got on the elevator.... Mr. Jerry Donovan was on
the elevator when I got on, and he said . . . he wanted
to speak to me on behalf of his brother, Dan Donovan,
and he wanted me to talk to the other workers and to
convince them to forget all of the union activities for
a period of at least 90 days, and if I would do so, that
he had a check made out for $200 to give me, and he
took the check out of his pocket and handed it to me.59
According to Tierney, she "looked at the check and ...
threw it' back at" Jeremiah Donovan. Tierney assertedly
"told [Donovan] to go and fuck himself and to tell his
brother the same thing." Tierney explained: "The check
went up in the air and I told him that even if it was a million
59 On cross-examination, Tierney claimed that Jeremiah Donovan wore a
58 The alleged bribe offer occurred on April 15 and the particular union sports jacket at the tune; that he took the check "from his outer jacket
circular was first distributed ut'the home 'on April 18. pocket"; and that the check was not folded.
NEW FAIRVIEW HALL CONVALESCENT HOME 713
dollars I wouldn't accept it " Jeremiah Donovan, according
to Tierney, "picked up the check" and said: "Well, you can't
blame me for trying." Tierney testified that "... the eleva-
tor door opened and I got out . . ." at the basement level.
Tierney recalled that Donovan then said: `Well, you think
about it." Tierney added that "Donovan was getting out
behind" her when the last statement was made.
Tierney described the check which Jeremiah Donovan
assertedly had handed to her, as follows:
It was made out in the amount of $200. It had Daniel
Donovan's signature on it, but there wasn't any payee,
and it was on a Boston bank.
Tierney added that Jeremiah Donovan "said that, when he
handed me the check that all he had to do was to fill in my
name." And, according to Tierney, Daniel Donovan's name
was printed on the check; "it was a personal check" and not
the same form or type as her salary check.
Tierney testified that she thereafter went to the laundry-
room, picked up her linen supplies, went back to the eleva-
tor, and returned to work on the third floor. Tierney
assertedly worked for about 20 minutes, whereupon she
went down to the second floor in order to use the public
telephone. Tierney testified:
... as I was going by the nurse's station [on the second
floor], I met Grace Betzner, and I told her what had
happened on the elevator. . . . Then, I went to use the
telephone. . . . I tried to get Jerry Brown on the
phone, and didn't get any answer. . . . So I went to
Grace Betzner and asked her if she would try to contact
JerryBrown and tell him that I wanted to talk to him
Tierney then allegedly returned to the third floor.
Tierney testified that shortly before lunch that day Betz-
ner called her to the public telephone on the second floor.
According to Tierney, Brown was on the telephone. Tierney
assertedly told Brown:
Jerry Donovan had offered me [Tierney] a bribe on the
elevator and everything that had happened... 60
Tierney testified that she also spoke to Brown later that
same day about the incident and that she also discussed "the
bribe" with, among others, coworkers Douglas and Ber-
nard.
Further, Tierney explained that on Saturday April 17,
Union Representative Brown brought to Tierney's resi-
dence a number of leaflets, which stated:
WE WILL NOT BE BRIBED
Daniel Donovan thinks that workers will do anything
for a dollar. He is so used to corruption that he thinks
everyone is corrupt. He is so used to thievery that he
60 On cross-examination, Tierney recalled that Brown "said that he
couldn't believe it."
thinks everyone is a thief. He thinks that workers at
Fairview Hall would sell out their brothers and sisters
for his bribes-well Dirty Dan, you had better think
again!
On Thursday, April 15, 1971, Jerry Donovan, the #2
Stooge at Fairview Hall offered one of our fellow union
members a $200.00 bribe to betray the other workers
and to talk against the Union. This vicious insult shows
us what we already knew. It shows that Dirty Dan and
his Stooges have no RESPECT for our intelligence, our
sincerity, or our honesty. They think everyone is moti-
vated by the same greed and avarice that they show.
The workers at Fairview Hall WILL NOT BE FOOLED by the
dishonest tactics of the desperate Mr. Donovan. We
KNOW that real security and dignity and real money
would be guaranteed only when WE WIN OUR FIGHT FOR
LOCAL 1199. This desperate tactic Shows that Donovan
is running scared. If the workers maintain their unity,
1199 Victory is just a matter of time. In the meantime,
we want to let Dirty Dan know that the world is not
made up of Judases, who will betray their brothers and
sisters for 30 pieces of silver 6i
Tierney distributed about 8 or 10 of these leaflets to her
coworkers on Sunday April 18 in the second floor break
room of the home. Tierney also gave a number of the leaf-
lets to coworker Dean that same day.
Tierney testified that on Tuesday, May 4, she was asked
by Boecker to go to Shepard's office. Boecker was also
present in the office. According to Tierney, Shepard said:
That he was going to have to suspend me for telling the
other workers about Jerry Donovan offering me a bribe
and for passing our leaflets about the bribe... .
At Tierney's request, Shepard "put [it] in writing" and
signed the document. The document states:
May 4, 1971
To.. Louise Tierney
FROM- Mr. R. Shepard
Administrator
We presently have information that the libelous circu-
lar titled "We Will Not Be Bribed" was distributed by
you, and that you in fact told the other employees that
the bribe was offered to you.
You are suspended while we further investigate this
matter.
/s/ Robert M. Shepard
During this interview, according to Tierney,
Mr. Shepard asked me if I had any of the leaflets put
on the bulletin board in the home or in the elevators,
61 This document also indicates that it is "issued by" Local 1199 and is
dated April 16.
714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and I told him no, and he asked me if I had passed any
of the leaflets out and I told him that, my answer was,
"Anything was possible."
Shepard also told Tierney, according to the employee, that
she was "suspended indefinitely" pending his further inves-
tigation of the matter. At Shepard's request, Boecker "es-
cort[ed] [Tierney] out of the building." 62 Thereafter, on
Thursday May 6, according to Tierney, Shepard telephoned
Tierney at her home and informed her that "he decided to
terminate [her] employment; that he had investigated the
matter further and that it was his decision that [she] was
terminated." 63
On cross-examination, Tierney stated that on Sunday,
April 18, she gave the remaining, undistributed pamphlets
to coworker Dean at work. Tierney was shown one of her
four prehearing affidavits which indicated that she distrib-
uted about 10 such leaflets and "also left some on the table
in the break room." Tierney at first acknowledged that she
"might have" left them on the table but then claimed that
she gave the remaining leaflets to Dean. Tierney asserted
that she told this to Board counsel, but "he didn't put it in
[her] statement." Tierney could not recall telling Board
counsel that she "also left some on the table in the break
room," although she read and signed the statement. Tierney
also claimed that Brown did not give Tierney any instruc-
tions when he brought the leaflets to her home and, further,
that she gave no instructions to Dean when she handed over
to Dean the undistributed leaflets. Tierney also claimed that
she did not know that the leaflets were being prepared until
Brown brought them to her residence on Saturday evening,
April 17.
On cross-examination, Tierney acknowledged that there
is no reference in her prehearing affidavits "about [her]
throwing the check back at Mr. Donovan, or about him
picking it up from the floor, or about what [Tierney] called
him.... " Tierney claimed that she told Board counsel
during her prehearing interview that she "had thrown the
check" at Donovan and "had sworn at him"; Tierney fur-
ther claimed that Board counsel "didn't put it in the state-
ment." Tierney also acknowledged that her prehearing
affidavits made no reference to "what Mr. Donovan said as
[they] left the elevator." Assertedly, Tierney told this to
Board counsel and "he didn't put that in.... " Tierney
claimed that she asked Board counsel "why" he did not
include the above information and his response was: ".. .
he knew and that was all-right."
Grace Betzner was also active in the Union's early organi-
zational'effort as shown above. She testified that "after the
[morning] coffee break we go down to get the linen for the
patients" in the basement. She recalled attending the same
coffeebreak with Tierney on Thursday, April 15. Betzner
claimed that when she got on the elevator to go to the
basement, she did not see Tierney. According to Betzner,
she picked up her linen supplies, returned to the elevator
and,
... when the elevator came down, the door opened. I
[Betzner] heard Mr. Jerry Donovan say, "You think
about it." Then Louise [Tierney] walked out and he
walked out right after her.
Betzner assertedly "got on the elevator and went back up
to the second floor" where she was working. Some 20 min-
utes later, Tierney assertedly told Betzner, "that SOB of-
fered me a check if I would forget about the union." Tierney
assertedly told Bertzner: `I'm going to call Jerry" Brown.
Tierney could not contact Brown and Betzner agreed to try
to telephone him. Brown, according to Betzner, called back
about 11 a.m.
Betzner further testified that she attended a union meet-
ing on Tuesday, May 4, with the aides and housekeepers on
the 7-to-3 and 11-to-7 shifts. According to Betzner:
They discussed what happened to Mrs. Tierney and we
also discussed the Heritage House 64 and all the events
that were going on at New Fairview Hall, the speeches
and so forth that Shepard and Donovan were giving,
and they also took a strike vote.
Betzner recalled that "Mr. Brown was telling us how they
were letting girls go one by one for union activities...."
On cross-examination, Betzner explained the elevator in-
cident:
As the door [of the elevator in the basement] was open-
ing, I heard Mr. [Jeremiah] Donovan say, "You think
about it." Mrs. Tierney came out and Mr. Donovan
right after her. I [Betzner] didn't say anything to either
one of them . . . [I] dust got on the elevator and went
upstairs.
62 Tierney also recalled that Shepard said to the employee:
... that Jerry Donovan wouldn't do anything like that-offer [the
employee] a bribe
Tierney assertedly responded, inter alta, "that he had offered [Tierney] a
bribe...: '
63 Tierney also testified that she attended a union meeting on May 4, that
the meeting was attended by Brown, Seelig, Ward, and about 50 aides and
housekeepers on the 7-to-3 and 3-to-11 shifts; and that they discussed
Tierney's "suspension. " According to Tierney, they "discussed appointing a
committee ... to go to the Home and ask management to reinstate" Tierney.
Tierney recalled that they discussed, inter a&a, what had happened to em-
ployees during a drive at another nursing home-"The things that had hap-
pened to some of the workers there who were fired because of the union";
the discharge of coemployee Vivian Nugent at Respondent's facility; and
.. they had suspended [Tierney] and ... they would probably go right
down the line.. " The employees present took "a strike vote" and, accord-
ing to Tierney, "decided that they would go on strike if [Tierney] wasn't
reinstated "
Although other aides normally go down to pick up their
linen after the break, there were no other aides on the eleva-
tor or in the immediate area.
Betzner claimed that there are two elevators in the area
which are separated by a partition and that there was some
object between Betzner and Tierney when Tierney left the
elevator. However, Betzner also acknowledged that she was
standing "in the middle" of the two elevators "right in front
of the buttons" on the center partition and that the center
partition is 12 inches wide and no more than 6 inches in
depth. Betzner claimed that Tierney came off the elevator
64 Heritage House is another nursing home in the area, in no way connect-
ed to Respondent 's facilities, which recently experienced an organizational
drive
NEW FAIRVIEW HALL CONVALESCENT HOME 715
to her right. However, in her preheanng affidavit, Betzner
did not recall which elevator opened. When it was demon-
strated to Betzner during cross-examination that if Tierney
got off the "right" elevator she would have to walk around
Betzner to get to the laundry, Betzner changed her testimo-
ny; she claimed that it was the elevator on the left side.
Admittedly, Betzner was only about 1 foot back from the
elevator door.
On further cross-examination, Betzner was asked:
Q. When you spoke to Mrs. Tierney later that day
[April 151 did you tell her you had observed her coming
out of the elevator?
A. At 10:00 before she went to make the phone call?
Q. Yes, anytime that day.
A. Later on, much later, I had asked her what had
happened.
Q. Did you tell her you saw her coming off the eleva-
tor?
A. Not at 10:00 o'clock.
Q. But some time later you did tell her?
A. Yes.
Betzner was subsequently asked:
Q. . . . when was the first time you told Mrs. Tier-
ney that you overheard what Mr. Donovan had said to
her when they were going out of the elevator?
A. I believe it was a couple of days later.
Q. A couple of days after the incident?
A. No. Yes. A couple of days after.
Betzner was also asked:
Q. When did you first tell Mr. Brown that you had
heard what Jerry Donovan had said?
A. In the beginning.
Q. . . . you mean about the time of the alleged
bribe?
A. Shortly after, yes.
Betzner, although she assertedly attended a Union meeting
about April 19, testified on cross-examination when asked
about the handbill: " . . . I told you I don't remember what
was discussed. I honestly don't remember."
Jeremiah Donovan testified, inter alia, that Thursday,
April 15, was his birthday; that he worked at the facility that
morning; that he wore a pair of slacks and shirt; that he
does not own a sportsjacket as claimed by Tierney; and that
he never offered the employee a bribe. Jeremiah Donovan
first saw the "We Will Not Be Bribed" pamphlet about 11
p.m. on Sunday, April 18, at the home. He admittedly did
nothing at the time. The next morning, Monday, April 19,'
Shepard brought a handful of the pamphlets to Jeremiah
Donovan in the office. The two then called Daniel Donovan
in Boston. Daniel Donovan assertedly asked them "to find
out who said this thing," referring to the unidentified em-
ployee who was allegedly offered a bribe. Jeremiah Dono-
van recalled that later that same week employee Molly
Arabo said to him in the laundryroom: ". . . she [Arabo]
was surprised at me [Donovan] for what I did to Louise
Tierney.... " Jeremiah Donovan related this to Shepard.
Jeremiah Donovan testified that Tierney was suspended
on Tuesday, May 4. During the morning of Wednesday,
May 5, according to Jeremiah Donovan, Union Represen-
tatives Brown and Ward with 10 to 15 off-duty employees
came to the home's parking lot. At the same time, on-duty
employees walked out. Donovan testified:
When Mr. Brown and Mr. Ward first arrived they were
alone. Then the off-duty employees came. I asked Mr.
Brown and Mr. Ward to leave the property,,that they
were trespassing. They refused to do so.. . . Mr. Ward
called me a farmer and a hillbilly and a white nigger.
... I asked Mr. Seymour to call the police. The police
arrived and they left.
Donovan recalled that the on-duty employees were away
from their duty stations about 30 minutes and that Brown
"gave [him] an ultimatum that if Mrs. Tierney wasn' t rein-
stated there would be a strike." This conversation assertedly
took place on the ramp at the main entrance. Later that
same morning, Jeremiah Donovan received a telephone call
from Brown. Brown asked for Tierney' s reinstatement.
Donovan declined to put her back. Brown said, inter alia,
" ... if you don't take her back there is going to be a
strike." Donovan replied, "Well, that is the way the ball
game goes." Donovan then related the above to Shepard
and Respondent's counsel.65
Shepard testified that the first time he saw the "We Will
Not Be Bribed" pamphlet was on Monday, April 19; that
he saw one posted on the bulletin board; and that he saw
15 to 20 near the timeclock. Shepard took the "batch" to
Jeremiah Donovan, and they called Daniel Donovan. They
also called Respondent's attorney either that day or the next
day. Shepard claimed that management did not know the
identity of the employee referred to in the pamphlet. Later
that week, Jeremiah Donovan assertedly related to Shepard
that "he had heard that Louise Tierney was the party to
whom the circular had referred." Shepard again called
counsel and Daniel Donovan. The following week, Wednes-
day and Thursday, April 28 and 29, Respondent's counsel
came to the nursing home and interviewed employees. On
late Friday, April 30, management decided to speak with
Tierney. Tierney assertedly was off work on May 1, 2, and
3 and Shepard first spoke to her on Tuesday, May 4.
Boecker was present during Shepard's interview with
Tierney. According to Shepard..
I showed Mrs . Tierney one of the circulars . . . and
asked her if she in fact was the one it refers to . . . she
said she could have been. . . . I asked her if she
brought the circulars into the home and put them on
the boards and she didn't give me any answer... .
Shepard then recalled that Tierney denied bringing in the
circulars. Tierney also denied telling employees "that she
was, the one mentioned here." Shepard assertedly told Tier-
65 Brown, in his testimony, claimed that Jeremiah Donovan said during the
above telephone conversation:
. . if it had been anybody else but Mrs Tierney who was a ringleader
and a troublemaker, that he might not have fired her... .
Donovan denied making the above or smular statements to Brown.
716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ney that Respondent "had evidence that she in fact was the
one who brought the circulars into the home, was the one
who posted it ..., was the one who told the employees that
Jerry Donovan had offered a bribe to her." Tierney assert-
edly said "that was a lie...... Shepard informed the work-
er that she was suspended pending further investigation,
gave her a "written notice" to that effect, and she left.
Shepard further testified that he later spoke to employees
Stopka, Wilmot, and others, but did not discover,'tanythmg
new." 66 On the morning of Thursday, May 6, Seelig assert-
edly telephone Shepard. Seelig, according to Shepard, de-
manded that Tierney be reinstated. Instead, Shepard called
Tierney on the telephone and advised her that she was
terminated. Shepard explained that the final decision to
discharge Tierney was made by Daniel Donovan.67
Daniel Donovan testified that he was called early Mon-
day, April 19, about the alleged bribe offer; that Jeremiah
Donovan and Shepard did not know who the alleged em-
ployee involved was; and that a few days later Shepard and
Jeremiah Donovan told Daniel Donovan that they had
heard "rumors" to the effect that Louise Tierney was the
employee who assertedly had received a bribe offer and
made the accusation. Daniel Donovan testified that inter-
views were conducted at the home on Wednesday and
Thursday, April 28 and 29, of the following week; and that
on Friday, April 30, he was informed by Shepard that Tier-
ney was the one. Daniel Donovan called his attorneys. He
later called Shepard and, according to Daniel Donovan,
... instructed Mr. Shepard to confront Mrs. Tierney
in an interview with the allegation; that if she admitted
that she had made the statements in the pamphlet she
was to be discharged. If she denied the allegations she
would be suspended pending further inquiry. 68
Donovan was later informed by Shepard that Tierney "had
denied the allegations and had been suspended pending
further inquiry." The following week, Daniel Donovan was
notified by Shepard of the 30-minute walkout on May 5 and
Brown's conversation with Jeremiah Donovan. Daniel
Donovan was also informed about Seelig's telephone call.
Daniel Donovan assertedly decided to discharge Tierney
and so advised Shepard.
On the record before me, I am not persuaded that Jeremi-
ah Donovan offered Louise Tierney a bribe as alleged. Tier-
ney, in relating the events culminating in her discharge,
appeared at times to be evasive and hostile. And, her pre-
hearing affidavits, as noted above, omit significant and ma-
terial facts to which she testified. I do not believe that if (as
she testified) Tierney called to the attention of Board coun-
sel significant and material omissions from her prehearing
affidavits, Board counsel would brush aside this informa-
tion. Further, I note that although Tierney was assertedly
told by Betzner that the latter had witnessed the elevator
66 Shepard recalled that on Wednesday , May 5 , Jeremiah Donovan related
to Shepard his conversation with Brown that day, referring to Tierney as the
employee involved in the alleged bribe offer Whereupon, according to Shep-
ard, they called counsel again.
67 Shepard claimed that on Tuesday May 4 he gave Tierney a "blue slip."
Later, he testified that this was an error-no "blue slip" was issued
68 According to Donovan , the above conversation was late Friday April 30.
incident in part, Tiemey's subsequent prehearing affidavit
makes no reference thereto. Under the circumstances, I do
not believe her testimony about the bribe. And, Betzner's
testimony concerning the elevator incident does not cor-
roborate the testimony of Tierney. Betzner, at first, claimed
that Tierney and Donovan exited from the elevator to her
right. When shown that they would have had to walk
around Betzner to get by in the basement area, Betzner
changed her story. Betzner's prehearing affidavit indicates
that Betzner did not know which elevator was involved. Her
testimony in this and related respects was evasive and in-
consistent. Further, Betzner's claim that, although she ob-
served Tierney and Donovan-in an elevator together and
heard in part their exchange, she did not tell Tierney about
this until some days later is under the circumstances unbe-
lievable. Rather, I credit the testimony stated above of Jere-
miah Donovan, as corroborated by the testimony of
Shepard and Daniel Donovan. Insofar as the above testimo-
ny of Tierney and Betzner conflicts with the testimony of
Jeremiah and Daniel Donovan and Shepard, I credit the
'latter. In addition, I do not believe, as claimed by Brown,
that Jeremiah Donovan in effect admitted in a telephone
conversation that Tierney was discharged in part because
she was a "troublemaker" or "ringleader." I credit instead
Jeremiah Donovan's version of the particular conversation.
In sum, I find and conclude that, on the record before me,
following an extensive investigation Tierney was suspended
and discharged because she distributed leaflets and told
employees about an untrue attempt to'bribe her.
P. The Employees Vote to Strike; Management's Letter of
May 20 to the Striking Employees
Union Representative Brown testified that some 28-30
employees attended a union meeting on May 4. According
to Brown, the employees discussed at the meeting "what we
considered to be unfair labor practices on the part of man-
agement, such as interrogation for example. There were
instances of interrogation that workers had told us about.
The warnings that were given to some workers after they
had participated in these demonstrations to speak to man-
agement. The termination of Vivian Nugent, which we felt
was related to Union activities.... " 69 Brown continued:
the employees also discussed at the meeting "what we con-
sidered to be the stalling tactics of management at the [rep-
resentation] hearings .. ," and they also discussed the
organizational campaign at the Heritage House and that
employer's alleged unfair labor practices there. Brown fur-
ther testified that:
[The] workers voted at this meeting unanimously to
demand the reinstatement of Mrs. Tierney and to give
management ... a 24 hour deadline to reinstate Mrs.
Tierney ... , if Mrs. Tierney was not reinstated the
workers voted to strike....
69 Nugent's termination is not alleged as violative of the Act.
70 Brown also recalled that Tierney's role in the campaign was discussed
and "the workers voted then to support her because they felt if it happened
to her . . . it could happen to any other employee and that it would probably
happen . . . [thhat this was a campaign on the part of management to destroy
the sentiment for the union...:'
NEW FAIRVIEW HALL CONVALESCENT HOME 717
Brown also related as noted above that on May 5 he,
together with on-duty and off-duty personnel, attempted to
speak with Shepard at the home, but was stopped at the
main entrance. Later that day, May 5, Brown called the
home and told Jeremiah Donovan, inter alia, "that there
was a deadline of 24 hours for the reinstatement of Mrs.
Tierney . . . that there would be a strike in 24 hours if Mrs.
Tierney was not reinstated." Tierney was not reinstated.
And, as Brown explained, the employees met on May 6 and
voted to strike. The strike started 10 p.m. on May Cl
The strike lasted until about September 8. The parties
stipulated that "at least" some 51 employees "did not per-
form any work and/or services for Respondent at any time
during the period commencing at 10 p.m. on May 6, 1971,
and through at least until September 8, 1971." And, it is
undisputed that the following document, signed by Daniel
Donovan, was sent to striking employees about May 20:
Although you have not reported to work for some
time you should know that the home is operative and
running smoothly.
We are IIwriting to tell you of your rights. You may
remain a*ay from work. However, we want you to
know that you have a right to work and no one can
prevent you from exercising this right.
If you need transportation we will provide you with
door to door service.
If you remain home you must know that we cannot
keep positions open indefinitely. We are in the process
of hiring permanent replacements for those who stay
out. As a result we may not have a position available
for you when and if you decide to return.
Since you are not working we will have to discontin-
ue your insurance coverage. You can contact the car-
rier directly if you wish continued coverage.
The evidence pertaining to the Union's alleged majority
status in an appropriate unit is discussed in section III, infra.
The evidence pertaining to alleged acts of misconduct by
union representatives and employees during the strike is
discussed in section IV, infra. The evidence pertaining to the
reinstatement of striking employees is discussed in section
V, infra.
Length of service Bonus
0-6 mos. $ 3
6-18 mos. 5
18 mos.-4 yrs. 10
4 yrs. and more 15
Daniel Donovan, as he testified, first acquired the New
Fairview Home during August 1968. A notice announcing
the Christmas bonus to the employees was posted on the
bulletin board at the home during early December 1971.
Daniel Donovan also acknowledged that he instituted the
Christmas bonuses at both his New Fairview and New
Lakeview facilities in Connecticut at the same time; that he
had acquired both of these facilities at the same time in
1968; and that the formula used to determine the bonus at
both facilities was essentially similar.72 Donovan explained
that the Christmas bonus formula utilized at his Lenox Hill
home in Massachusetts is also based on length of service.73
According to Donovan, this bonus formula was not extend-
ed to his home in Golden Hills because "[i]t just opened
recently, so it hasn't been open for Christmas." 74
III. THE UNION 'S MAJORITY STATUS IN AN APPROPRIATE BARGAINING
UNIT
A. The Nature of the Unit; the Exclusion from the Unit of
Pyne, Melchiodi, Bergmann and Reynolds
The complaint, as amended, alleges that a unit appropri-
ate for the purpose of collective bargaining within the mean-
ing of Section 9 of the Act is, as follows:
All full-time and regular part-time service and mainte-
nance employees employed by Respondent at its Clif-
ton Street, New Haven, Connecticut facility, including
nurses' aides, kitchen employees, cooks, maintenance
employees, housekeeping employees, and laundry em-
ployees; exclusive of all office clerical employees, pro-
fessional employees, licensed practical nurses,
Q. The Christmas Bonus
It is essentially undisputed and I find that for years prior
to Christmas 1971, Respondent's employees were not given
Christmas bonuses. However, a few weeks prior to Christ-
mas 1971, Respondent gave such bonuses to all unit em-
ployees, computed as follows:
Employee Novicki testified in part that the employees went on strike
"because Louise was suspended. The working conditions were terrible. They
were getting after the girls, and we felt that one by one we would all go."
Employee Pope testified that she struck "because of Louise Tierney being
fired. I felt that maybe I'd be fired too."
7i I credit the above testimony of Brown as corroborated in part by the
testimony of the employees and the sequence of events narrated herein
However, as noted in section II, 0, supra, insofar as Brown's version of the
above events differs from Jeremiah Donovan's version as to the May 5
occurrence, I find that Donovan's version is more accurate and complete.
7z At New Fairview the probationary period for employees was 6 months;
at New Lakeview it was 3 months. Thus, at New Lakeview employees from
0 to 3 months received a $3 Christmas bonus.
73 Donovan had acquired the Lenox Hill home in 1965.
74 Donovan has a partnership interest in the Golden Hills Home in Mil-
ford, Connecticut. Donovan explained that he did not believe Golden Hills
was open Christmas 1971, but there could be no length of service upon which
to compute a bonus "
Donovan claimed:
When I came to New Fairview Hall, they had a bonus system alread3
in effect which, I believe, gave bonuses a couple of times a year. They
requested me to maintain that system , which I put it to them at that time,
that it would have been my policy to give bonuses at Christmas and they
had their own system and they would rather keep their own system and
it was a very involved system where you-if you didn't use sick days,
you got some bonus, extra bonus and they wanted to maintain it and
I allowed them to maintain it for, I believe, two years and then, the third
year, they elected not to do it. .
Donovan further explained that the bonus at Fairview:
was a bonus for longevity, for attendance, for good work and all
the rest. One of the reasons I objected to this system was I couldn't
understand it and ,l thought there was a sufficient number of employees
that couldn't understand how the system worked and I had asked them
when I originally took over, in the first year, whether they would change
the system and they preferred not to and "they," I speak of Mrs. An-
drews as their representative, communicated to me that they strongly felt
that they should keep the bonus system, so I said, fine
718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
registered nurses, physical therapist, social workers, so-
cial service director, in-service director , charge nurse,
shift supervisors, activities' director, guards and all
other supervisors as defined in the Act.
Respondent , in its answer to the complaint as amended,
denies the above allegation. However, in its posthearing
brief (p. 194), Respondent states:
At the hearing the parties stipulated that all full-time
and regular part-time service and maintenance em-
ployees at the Employer's New Fairview Hall facility
in the following classifications constituted a unit ap-
propriate for collective bargaining: aides, kitchen em-
ployees, cooks, maintenance , housekeeping and
laundry employees... .
Job Summary
Under the direction of the licensed staff maintains the
clinical charts of all patients. Keeps all charts in the
proper order. Inserts new charting forms when needed.
Writes the name of the convalescent home on all pages.
Receives and inserts into charts all outside records, i.e.
hospital summary sheets, lab reports, x-ray reports.
Under the direction of the nurse fills out the transferal
form. Maintains patient's serial index file. Files away
the charts of all discharged and expired patients. Sorts
all incoming mail. Types forms and letters as directed
by the nursing director. Answers the telephone.
PERFORMANCE REQUIREMENTS
However, the parties do not agree with respect to the
unit placement of Pyne, Reynolds, Melchiodi and
Bergmann.
Respondent would include Pyne, Melchiodi , Bergmann,
and Reynolds in the unit. General Counsel would exclude
them. Counsel for the General Counsel argues that Pyne is
a ward clerk and should be excluded as an office clerical;
that Melchiodi is recreational director and should be ex-
cluded as a supervisor, managerial employee and/or be-
cause of her lack of community of interest with unit
employees; that Bergmann is a recreational employee and
should be excluded because of her lack of community of
interest with unit employees and/or because she is a casual
employee; and that Reynolds should be excluded because
he is a supervisor. As stated below, I find and conclude that
Pyne, Melchiodi, Bergmann, and Reynolds should be ex-
cluded from the unit.
1. Lorraine Pyne
Respondent argues in its post-hearing brief (p. 194):
"During the period February to May 1971, Lorraine Pyne
was the ward clerk at New Fairview Hall.... Her close
community of interest with service and maintenance em-
ployees during this period necessitates her inclusion in the
appropriate bargaining unit." The evidence of record
shows:
Shepard acknowledged that Pyne "was classified for .. .
payroll purposes with the other office employees"; that the
"other office clerical employees were bookkeeper[s] Mary
Craig . . . and Cynthia Dolphin"; and that "other than
those three"-Pyne, Craig and Dolphin-there were no
"others classified as office clerical employees for at least
payroll purposes ." Shepard also acknowledged that Pyne's
job duties required a person with "some clerical back-
ground"; that Pyne's job application , dated September 8,
1969, indicates that the position for which she applied was
"clerk"; that her education includes a "business course" as
a "high school graduate"; and that her prior positions with
other employers were "general office" and "cashier -secre-
tary."
Respondent 's written "Job Description" for the position
of "Ward Clerk" states, in part:
Responsibilityfor: Maintaining patient's clinical charts.
Organization of a filing system for unactive charts.
Does vital statistics and morbidity reporting.
Physical Demands: Sits and walks intermittently
throughout the day. Handles office equipment and
supplies. Finger dexterity and eye-hand coordination
in typing and filing. Stoops and reaches for records in
files.
Special Demands: Tact and courtesy in dealing with
patients, their families and friends. Cooperation with
other workers. Rapidity and accuracy in preparing re-
ports and charts., Works under the supervision of the
licensed staff.
QUALIFICATIONS
Education: High school graduate. This can be waived
when warranted by experience.
Training and Experience: Some clerical experience.
Knowledge of medical terminology is preferred but not
essential. Will receive training from licensed staff and
medical record consultant.
Job Knowledge: Knowledge of general clerical work.
Familiarity with office machines . Ability to type. Fa-
miliarity with the general layout of the nursing home.
WORK ENVIRONMENT
Works in a clean well-lighted, heated and ventilated
office and nursing station.
Shepard testified that there was, during the months preced-
ing the strike, a "general office" on the second floor "where
the office girls worked"; that payroll and other records
"would have been kept in the bookkeeper's office"; that
there "was a time when, I think, we had bookkeeping in the
general office, as one"; that "during the months of Febru-
ary, March, April and May, Pyne worked in . . . the second
NEW FAIRVIEW HALL CONVALESCENT HOME 719
floor main office"; and that Pyne "is still there." 75 Shepard
acknowledged that mail is processed in this main office and
Pyne "frequently did this"; that employee paychecks were
prepared and picked up in this office; that Pyne "carried out
some of the duties of the receptionist' 'including the answer-
ing of incoming calls; that Pyne answered Shepard's tele-
phone, took messages, and on occasion placed calls for
Shepard; that Pyne "greeted visitors to the home"; and that
Pyne "could" have spent as much as 85 percent of her work
time in that office. Shepard also testified that Pyne worked
on various records while in the office; she maintained cer-
tain filing systems relating to patient care for active and
inactive patients; and she did filing work with respect to
these records in the office. Shepard also acknowledged that
Pyne "completed in the office patient discharge records"
and "patient admission records."
In this office, according to Shepard, Pyne typed letters for
Shepard and Boecker; she typed onto various documents
the "patient's name and the doctor's name . . . a room
number . . . and other information; she assisted the book-
keeper with some of the bookkeeper's functions; she made
arrangements for transfers and transportation of patients;
she ordered some supplies; and she handed out paychecks
to employees and social security checks to patients. Shepard
acknowledged that when Pyne was absent nursing person-
nel were not assigned to her desk in the office.76
Pyne's hourly pay rate during the period in question was
$2.50; bookkeeper Dolphin's rate ranged from $2.50 to
2.75; and the hourly rate for nurses' aides was a few cents
below $2 or `just around" $2. Pyne, unlike the aides and
kitchen personnel, did not ordinarily work on holidays; her
hours and days of work were generally different than the
hours of aides; and sht took her breaks and lunch with the
bookkeepers. And, although Pyne received the same bene-
fits which the nurses' aides received, the bookkeepers and
office personnel also received these same benefits.
Shepard testified and the record shows that it was Pyne's
responsibility to initiate and maintain certain charts for the
nursing and medical staff ; she would inter alia assemble
these charts and print "basic information" on them; she
would keep patients' records up to date; she would file the
various reports in the patient's permanent record; she would
reassemble all records and charts into one pack when a
patient died or was discharged; that she maintained daily a
patient census; and that she is under the supervision of the
director of nurses. Shepard explained:
Mrs. Pyne would report to the nursing director, but the
nurses, too, would have things they would request her
to do. She is working on the charts every day which is
75 Shepard explained:
we did have Mrs. Helen Craig and Cynthia Dolphin in that office, and
then after the move took place . . . the Social Service Director and.
a receptionist are in the office with [Pyne] . .
Shepard could not recall when the bookkeepers were moved out of that
office, although , as he testified, "I think Helen Craig and Cynthia Dolphin
were with [Pyne] for at least part of this time you're talking about." Else-
where, Shepard testified:
I think at the particular time I moved the Director of Nurses and the
Social Service Director down in that office. .
76 Shepard testified that on occasion Pyne would interview job applicants
after they had filled out employment applications.
... an important element of nursing. It is a permanent
record and the nurses would tell her what reports they
needed in these... .
Patients' records are kept in a rack at the nurses' stations.
As for Pyne's place of work, Shepard explained:
Previous to the time when we operated on the first
floor, Mrs. Pyne always sat out at the nursing station.
She had a desk to the side of the nursing station and
that is where she spent all of her time. When we did
move upstairs, we found that the size of the nursing
station and the number of personnel around . . . was
not convenient to have her there, she was getting in the
way of people because she had to have a typewriter and
it wasn't just feasible to have her at the nursing station
doing that kind of work.
So now what she does is move around. She does what
she has to at the nursing station and then she brings her
work back into the office and works on it in the office.
Further, as noted, Pyne is hourly paid; she punches the time
clock; she receives similar benefits as other service and
maintenance personnel; and she was under the same em-
ployment practices" applicable to service and maintenance
personnel.
On the record before me,77 I find and conclude that Pyne
should be excluded from the unit as an office clerical. I find
and conclude that Pyne was classified for payroll purposes
as an office worker; her job is essentially clerical in nature;
at all times material she spent and spends a substantial
portion of her workday in the office with, inter alia, clericals,
bookkeepers, and/or supervisors; and, while she has inter-
changed duties and functions on occasion with other office
clericals, she has no real interchange of duties or functions
with unit personnel. Her hours and pay scale in part also
reflect the difference between her job and the work of the
various unit personnel. Under the circumstances, I find and
conclude that Pyne was an office clerical who performed
related clerk-receptionist duties and, therefore, should be
excluded from the unit. I find and conclude that Pyne does
not have a sufficient community of interest with service and
maintenance employees. See, generally, Jackson Manor
Nursing Home, Inc., 194 NLRB 892 (1972).
2. Jean Melchiodi and Helen Bergmann
Respondent argues in its posthearing brief (p. 202): "Mel-
chiodi and Bergmann were recreational employees who pos-
sessed a close community of interest with unit employees
and should be included in the unit." The record shows
Shepard acknowledged that Melchiodi worked as activities'
director at the home and, consequently, "her overall respon-
sibility was to arrange and implement recreation and activi-
ties for the patients." Her written job description provides
in part:
77 As stated, the foregoing evidence is based in substantial part upon
Shepard's testimony and supporting documents. I credit his testimony as
stated above.
720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
JOB SUMMARY
Plans, directs and organizes recreational program to
provide patients with directed activities in all areas.
Determines, with the aid of the nursing staff, what
activities will be best and which patients need extra
encouragement and help. Participates with patients in
various activities, such as games, dances, music and
arts and crafts. Prepares reports on patient participa-
tion and special interests and keeps simple financial
records of craft articles sold. Organizes, trains and re-
cruits volunteers to help in recreational program. Buys
supplies for all recreational activities and parties. Or-
ganizes religious activities and parties. Organizes reli-
gious activities and recruits priests, ministers and
rabbis to direct services.
Thus, as Shepard testified, Melchiodi directed the home's
recreational activities which varied from arts and crafts to
field trips. She also recruited volunteer workers; arranged
religious and funeral services; ordered some supplies for
various arts and crafts; arranged bus rides; oversaw the sale
of patient craftwork; and in part administered the expenses
of her program. According to Shepard, Melchiodi had a
desk in the activities' room.
Shepard acknowledged that Helen Bergmann worked ex-
clusively as a recreational employee. Bergmann, unlike Mel-
chiodi, was an hourly paid worker. Bergmann's hours and
days of work in effect "were set to fit into the activities"
under the direction of Melchiodo.78 According to Shepard,
Bergmann assisted Melchiodi on occasion in making vari-
ous arrangements for recreational functions. However,
Shepard claimed that Bergmann "didn't have set hours"
but, instead, would "arrive during a particular program
. " Shepard explained:
Mrs. Bergmann had been an employee . . . before Mrs.
Melchiodi was hired. . . . We didn't need Mrs. Berg-
mann there, but as long as she was there, she did assist
in certain functions. . . . There was no real need for
her to be there at those functions and Mrs. Melchiodi
had no power to get her there for those particular func-
tions, but since she [Bergmann] only put in a certain
number of hours a week, she usually did come to the
functions which she could be of most help, but it wasn't
necessary to have her [there] at all.
Elsewhere, Shepard testified:
. [Bergmann's] hours were established by when the
large recreational events were being held, the ones that
Mrs. Melchiodi felt she needed help with the number
of patients she had. So, whenever there was a birthday
party or . . . the bingo and some of the events that
would bring many of the patients into one certain area,
those were the days that Mrs. Bergmann came to the
nursing home.
Melchiodi had attended college, had received the special
73 Both Melchiodi and Bergmann were separately classified on the payroll
records.
training necessary to obtain a State license for her position
as recreational director; had attended training seminars;
and was a member of and participated in a recreational
directors' association. Connecticut law requires a home to
have a recreational director like Melchiodi, according to
Shepard. And, as of December 1970, Melchiodi's salary was
$105 per week; as of November 1971 it was $115 per week;
and as of December 13, 1971, it was $135 per week. Further,
Melchiodi took her lunch breaks with Bergmann; unlike the
aides, the two could leave the premises during lunch; and
they did not normally work on weekends.
Shepard testified: "Mrs. Bergmann and Mrs. Melchiodi
were all under the same rules as far as vacations [go for] all
the other unlicensed personnel in the nursing home." Shep-
ard added: "Mrs. Bergmann, first, used to take a fair
amount of time off. She would take several trips during the
course of the year.... She was never paid for any of the
time she had off.... She didn't receive pay [for this leave]
because she was a part-time employee and didn't work
enough hours to receive any vacation." Bergmann was also
required by State law to take special training and obtain a
license ; this requirement caused Bergmann's employment
to end in the summer of 197179
On the record before me, I find and conclude that Mel-
chiodi should be excluded from the unit because she lacked
sufficient community of interest with unit employees. Like-
wise, Bergmann, her assistant, should be excluded because
she too lacked sufficient community of interest with unit
personnel. See, generally, Jackson Manor Nursing Home,
Inc., supra, 194 NLRB 892.50
3. John Reynolds
During the months preceeding the strike, John Reynolds
and some five other persons performed maintenance work
at Respondent's facility. Reynolds, at all times material, was
and is a lieutenant with the New Haven fire department.
Likewise, the other maintenance personnel worked for and
presently work for the New Haven Fire Department. Re-
spondent argues in its posthearing brief (p. 198) that "Rey-
nolds is a non-supervisory employee who during the period
February to May 1971 possessed a community of interest
with the unit employees and, accordingly, should be includ-
ed in the unit." It is undisputed that the other maintenance
workers should be included in the unit.
Respondent acknowledged at the hearing that Reynolds
in fact was made a "supervisor" when the strike ended
during early September; that the home's "maintenance men
today report to Mr. Reynolds"; and that since the end of the
strike the housekeepers also report to Reynolds. Thus, as
Shepard testified, "shortly after [Reynolds] came back from
the strike" he was given the title and position of "Assistant
Administrator" over both maintenance and housekeeping
functions. Shepard further acknowledged that Reynolds
79 The above summary is based in part upon Shepard's testimony and
various supporting records I credit Shepard's testimony as summarized
above.
80 Under the circumstances, I find it unnecessary to determine, as counsel
for General Counsel argues, whether Melchiodi should also be excluded as
a supervisor or managerial employee, and Bergmann should also be excluded
as a casual employee
NEW FAIRVIEW HALL CONVALESCENT HOME 721
has, since the end of the strike, continued to perform main-
tenance work. Shepard testified that "he's [Reynolds] car-
rying several hats right now . . . ; even though he's an
Assistant Administrator he still mops the floors." Further,
Shepard acknowledged that during the months before the
strike, Reynolds was responsible for certain maintenance
problems and work assignments.
Shepard acknowledged that during the pertinent period
prior to the strike he entrusted Reynolds with the responsi-
bility "to see" that certain repairs were done correctly by
maintenance workers; "there could have been times" during
this period when Reynolds "might have" given directions to
maintenance men to do certain work over again; Reynolds
"might have written down" the hours maintenance men
were to work; and Reynolds adjusted the hours of work for
maintenance people when conflicts arose in their respective
schedules. Shepard testified that before the strike, Reynolds
"would serve as sort of a lead man," but when Reynolds was
not working the maintenance workers "would have to re-
port to somebody else." Shepard explained:
Now, if he [Reynolds] was on, they [the maintenance
people] might see him first and he [Reynolds] might see
me [Shepard] or they might see one of the others [refer-
ring to other senior maintenance men.]
"No one would give direct orders to Mr. Reynolds." How-
ever, admittedly Reynolds would " sometimes" select main-
tenance workers to do a particular job.
When asked how new maintenance personnel were re-
cruited, Shepard testified:
... whenever we needed additional maintenance men,
the firemen would send the word out and see if they
could get one. Mr. Reynolds, I'm sure, had a hand in
this, but I don't think he was the only one who did this.
There was no interviewing as such at the nursing home.
This was all done at the fire house.
Shepard added:
If we needed additional firemen [as] . . . maintenance
men, I might very well have told Mr. Reynolds that I
thought we needed somebody else.
Shepard claimed that he alone had the authority to dis-
charge or terminate maintenance personnel.81 Shepard testi-
fied that he "didn't know what kind of disciplinary action
[Reynolds] could have taken.... " Shepard claimed that
Reynolds performed the same duties as all other mainte-
nance employees; the maintenance men "worked out
[among] themselves" assignments-"they just knew what
had to be done and they went ahead and did what had to
be done.... " 82 Shepard claimed that the- maintenance
personnel "worked out among [themselves], according to
the hours they worked at the firehouse,"-what their separate
81 Shepard agreed that this was "similar to this] responsibility with respect
to aides and other classifications in the nursing home.... "
82 when Reynolds was not scheduled to work, Ray Cassista-another
officer in the fire department and stipulated as a maintenance employee-
would perform Reynolds' duties.
schedules would be at the nursing home. Shepard claimed
that Reynolds had no authority to reward employees or
even recommend such action; he did not evaluate or assist
in the evaluation of employees; he performed all jobs per-
formed by the employees; and he dressed in the same man-
ner, worked the same hours, punched the timeclock, and
worked in the same area. Reynolds, like other maintenance
men, was paid on an hourly basis and received overtime and
fringe benefits like other employees. His rate ranged from
$2.75 to $3 per hour, like other maintenance employees 83
Section 2(11) of the Act defines the term "supervisor" as:
any individual having authority, in the interest of the
employer, to hire, transfer, suspend, lay off, recall, pro-
mote, discharge, assign, reward, or discipline other em-
ployees, or responsibly to direct them, or to adjust their
grievances, or effectively to recommend such action, if
in connection with the foregoing the exercise of such
authority is not of a merely routine or clerical nature,
but requires the use of independent judgment.
The possession of any one of these authorities places an
individual within the supervisory class. Ohio Power Compa-
ny v. N.L. R.B., 176 F.2d 385, 387 (C.A. 6), cert. denied 338
U.S. 899; and see N.L.R.B v. Syracuse Stamping Co., 208
F.2d 77, 79 (C.A. 2, 1953).
I find and conclude that Reynolds at all times material
was a supervisor. Thus, I find and conclude that Reynolds
during the months before the strike was entrusted with the
responsibility for the home's maintenance department. Rey-
nolds in effect scheduled work hours and days and assign-
ments for the maintenance personnel. Maintenance
personnel did report to Reynolds. Reynolds made work
assignments to the personnel. Reynolds participated in the
recruiting of new personnel for maintenance. Reynolds di-
rected the work of employees. Reynolds-who still per-
forms in part work which he performed before the strike-is
now admittedly a supervisor. Under all these circumstances,
I am persuaaded that sufficient authority had been vested
in Reynolds during the February to May period and, conse-
quently, I find and conclude that he was a supervisor within
the, meaning of Section 2(11) of the Act 84
B. The Number of Employees in the Unit
Counsel for General Counsel states in his post-hearing
brief (p. 101) that " ... as of March 1, when the Union
made its initial demand for recognition upon Respondent,
there were 58 employees in the unit" and that "as of Friday
March 5 . . . the size of the unit remained unchanged
.... " Counsel for Respondent states in his post-hearing
brief (pp. 213, 214-215) that on "March 1, 1971, there were
62 employees in the appropriate unit ... " including in his
computation Pyne, Reynolds, Melchiodi, and Bergmann.
Accordingly--except for my ruling excluding Pyne, Rey-
nolds, Melchiodi, and Bergmann from the unit, as stated
-above-all parties agree that on March 1 there were 58
83 Reynolds and the other maintenance personnel did not work during the
strike
84 The above recitation is based in part on Shepard's testimony I credit
the testimony of Shepard as stated above.
722 , DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees in the appropriate unit. Further, as counsel for
Respondent states in his brief (p. 215), on "March 2, the
date of the Union's telegram requesting recognition, the
number of employees in the unit remained the same-62"
(or, 58 excluding the above four persons). And, on March
5, admittedly, ". . . the number of employees in the unit
remained the same ... " (ibid.). In sum, except as stated
above, the record shows and there is no real dispute as to
the total number of employees in the appropriate unit on
March 1, 2, and 5. I find and conclude that there were a total
of 58 employees in the appropriate unit on March 1, 2, and
5, as follows: -
Kitchen
1. Panay Adorno
2. Steven Boecker
3. John Donahue
4. Myrtle Garguilo
5. Gertrude LaRocque
6. Mamie Lee
7. Marion Masiulis
8. Rose Rich
9. Gill Sewell
10. C. Williams
Laundry
11. Molly Arabo
12. Andrew Gaura
13. Ken lannucci
Housekeepers
14. Lucy Abbattello
15. Anna Czyz
16. Eva Kopylec
17. Edith Richards
18 Joanne Smith
Maintenance Men
19. Frank Barbaro
20. Ray Cassista
21. Peter Fertig
Nurses' Aides
22. Brenda Alger
23. Deborah Alger
24. Cynthia Bernard
25. Grace Betzner
26. Terry Buzzin
27. F. Chaplin
28. Mary Clough
29. Marie Conroy
30. Genny Cicarelli
31. Helen Couture
32. Eleanor Douglas
33. Delores Dean
34. Marie Farrell
35. Lois Fazzino
36. Mary J. Fazzino
37. Virginia Hennessey
38. Violet Hoffman
39. Patricio Izzo
40. Joyce Jones
41. Rachel Novicki
42. Vivian Nugent
43. Betty O'Conner
44. Mary Ann Pace
45. Mabel Page
46. Louise Perry
47. Virginia Pope
48. Ellen Paluha
49. Lillian Reynolds
50. Winnie Rubino
51. Eleanor Schappa
52. Carmen Sein
53. Louise Tierney
54. Frances Tricaso
55. Marcia Twarkins
56. Adel Vaiculis
57. Betty Young
58. Teodora Zayas
In addition, counsel for Respondent states in his brief (p.
216) that on April 1 "there were 65 employees in the unit,"
or 61 excluding Pyne, Reynolds, Bergmann, and Melchio-
do. Counsel for General Counsel argues in his brief (App.
A) that as of April 3 and 10, respectively, there were 60 and
63 employees in the unit.85 As demonstrated infra, section
III, C, it is unnecessary for me to resolve this difference in
computation in view of my determination.
C. The Union Authorization Cards Signed By Unit Em-
ployees
1. As of March 1
There was testimony adduced at the hearing that the
Union had obtained during its campaign some 56 signed
authorization cards. See section II, B, supra . There were 54
cards, subject to various contentions and arguments, re-
ceived into evidence. Counsel for General Counsel asserts
in his posthearing brief (pp. 88, 101) that as of March 1, the
Union had secured card authorizations from 39 of 58 unit
employees; as of March 5, the Union had secured a total of
43 card authorizations out of 58 unit employees; and, fur-
85 Insofar as counsel for General Counsel and Respondent differ in their
computations , I note that General Counsel's computations are on a weekly
basis and if an employee worked any part of the week he is included in the
computation. And, as General Counsel states - "employees who were hired
(started work) and terminated during the same week (i.e, Jurgilh and Miko-
sky) although listed on [General Counsel's] computation are not included in
the weekly computations . . " Respondent , in reaching 61 for April 1,
apparently includes Mikosky
NEW FAIRVIEW HALL CONVALESCENT HOME 723
ther, the Union's card majority status continued thereafter
at least until May 6 when the strike commenced. Counsel
for Respondent states in his brief (pp. 213-217) that "Gen-
eral Counsel introduced 39 cards, all of which allegedly had
been executed on or before March 1.... " 86 Of these 39
cards, counsel for Respondent, in his posthearing brief (pp.
214-217), argues that employee Schappa's card was "really
executed" on March 25 and not on February 25, 1971, as
claimed, and that 17 of the remaining 38 cards presented
should not be counted in determining majority status for
other reasons. These 17 (18 including Shappa) cards were
assertedly signed by:
1. Sein 9. Jones
2. D. Alger 10. Lee
3. B. Alger 11. Tricaso
4. Bernard 12. Gargiulo
5. Zayas 13. LaRocque
6. Czyz 14. Donahue
7. Abbattello 15. L. Fazzino
8. Nugent 16. Izzo
17. Rich
The evidence of record pertaining to the 18 disputed
cards 87 is summarized as follows:
a. Carmen Sein
Employee Louise Tierney testified that following the ini-
tial union meeting on February 16 (see section II, B, supra),
she personally solicited the signatures of coemployees on
union authorization cards. Tierney testified that she gave
card G.C. Exh. 2 (ss) to Carmen Sein at work on February
17; on the same day Sein returned the card to Tierney; and
Tierney observed that the card had been filled out and
signed by Sein. Tierney explained that she "was standing
next to Carmen [Sein] in the patient's room when the card
was signed; Sein "was leaning on one of the night stands to
fill out the card"; and Tierney saw Sein sign the card. Tier-
ney later turned this card over to Union Representative
Brown88
86 They are the cards of-
1. Abbattello 20. Jones
2. B. Alger 21. LaRocque
3. D. Alger 22. Lee
4. Arabo 23. Novicki
5. Bernard 24. Nugent
6. Betzner 25. O'Conner
7. Cicarelli 26. Pace
8. Clough 27. Page
9. Conroy 28. Perry
10. Czyz 29. Pope
11. Dean 30. Rich
12. Donahue 31. Richards
13. Douglas 32 Rubino
14. Farrell 33 Schappa
15. L. Fazzino 34. Sem
16. Gargiulo 35. Smith
17. Hennessey 36. Tierney
18. Hoffman 37. Tricaso
19. Izzo 38. Vaiculis
39. Zayas
si Respondent in his posthearmg brief does not specifically discuss the
validity of the remaining 21 cards which were offered by General Counsel
sin ssupport of the Union's claim of majority status as of March 1.
On cross-examination , Tierney testified that she asked Sem "if she want-
b. Deborah Alger
Tierney testified that on February 20, she solicited the
signature of Deborah Alger. Tierney explained that she gave
Deborah card G.C. 2(tt)(1) in the presence of Brenda Alger,
Grace Betzner, and Cynthia Bernard; and that Tierney
asked Deborah "if she wanted to join the Union, and she
said yes.... " Tierney testified that G.C. 2(tt)( 1) was
"blank on one side ." 89 Deborah, with the assistance of Tier-
ney, wrote on the blank side of the card: "I, Deborah Alger,
wish to join N.U. of H. & N.H. Employees Union ... ";
dated the card February 20; and signed it. About 5 minutes
later, according to Tierney, Eleanor Douglas gave Tierney
a "good card," 90 G.C. 2(tt)(2). Deborah filled this card out
in part and signed it in the presence of Tierney. Tierney
turned both G.C. 2(tt)(1) and (2) over to Brown.91
Grace Betzner testified that she observed Deborah Alger
sign the blank and printed cards (G.C. 2(tt)(1) and (2)) on
February 20.
c. Brenda Alger
Tierney testified that she gave card G.C. 2(uu)( 1) to Bren-
da Alger in the home's parking lot on February 20 shortly
after she gave a card to Deborah (see above). Tierney ex-
plained that G.C. 2(uu)(1) was also blank on one side; that
G.C. 2(uu)(1) was filled out and signed by Brenda; that
minutes later Tierney was given a fully punted card (G.C.
2(uu)(2)) which was filled out in part and signed by Brenda
on February 20; and that Tierney observed Brenda sign
both cards. Tierney added that Brenda, Deborah, Grace
Betzner and Cynthia Bernard were also present at the time.
Betzner testified that she observed Brenda sign her cards.
Betzner recalled that Tierney told the girls that the purpose
of the card was "to join the Union."
d. Cynthia Bernard
Tierney testified that Cynthia Bernard was given card
G.C. 2(vv)(1) in the parking lot on February 20 by Grace
Betzner . This card (G.C. 2(vv)( 1) ) was also blank on one
side (see above) and, according to Tierney, Bernard filled in
the card and signed it on February 20. Tierney was at first
unsure when Bernard signed a second card (G.C. (vv)(2) ).
She recalled that at the February 23 union meeting:
Cynthia [Bernard] was sitting next to me and she asked
Jerry Brown if she could have another card to fill out
because the first one was blank, and she had to fill it
in, and [Brown] gave her a card, and she filled it out
and signed it.
Betzner also testified that she gave Bernard card G.C. 2
(vv)(1) in the parking lot in the presence of Tierney; Ber-
ed to join the union"; Sem said yes; and no other questions were asked or
statements made
89 The particular card had no printed lines and questions on the "applica-
tion" side of the card. Cf G.C 2(tt)(2)
90 That is a card containing all printed matter on both sides.
91 Tierney explained that she asked Deborah Alger, "Do you want to join
the Union," Alger said yes, and that was the "end of it."
724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nard filled in the card in part and signed it; and the card
was signed on February 20. Betzner also recalled that Ber-
nard signed a second card at the February 23 union meet-
ing, although Betzner did not personally observe Bernard
place her signature on the second card (G.C. 2(vv)(2).)
e. Teodora Zayas
Tierney testified that she gave card G.C. 2(ww) to Teodo-
ra Zayas at work; Zayas returned the card to Tierney about
2 or 3 days later; the card "was all filled out except for [the]
department ... "; it was signed; and it was dated February
22. Tierney recalled asking Zayas "if she wanted to join the
Union and [Zayas] said yes, and took the card." On cross-
examination, Tierney testified: "I asked her if she [Zayas]
would like to join the Union"; she said yes and took a card.
Further, Tierney recalled that she gave the card to Zayas on
February 22, "the day before the Union meeting ... "; that
Zayas returned the card a few days later; and from her brief
association with Zayas,92 Tierney identified Zayas' signa-
ture .93
f. Anna Czyz
Tierney testified that on the morning of March 1, before
the Union's meeting with Shepard, she "talked to Anna
Czyz [at work] and asked [Czyz] if she wanted to join the
Union." According to Tierney, Czyz "said that she didn't
understand what [Tierney] was asking ... " and Tierney
then asked Loretta Boguski, a private duty nurse who was
present at the time, "if she would explain it to [Czyz].... "
Tierney further testified that she "gave the card to Anna
Czyz and . . . showed it to Loretta Boguski and [Boguski]
explained it to [Czyz]," partially in Polish and partially in
English. Tierney explained:
She [Boguski] said something to [Czyz] in Polish and in
'English, she told [Czyz] it was a union membership
card and [Czyz] signed the card, [Czyz] said she wanted
to become a member of the union.
Tierney explained that Tierney dated the card (G.C. 2(xx) ),
although Czyz filled out the rest of the card and signed it 9a
Czyz was not produced as a witness because at the time she
was assertedly in Poland on leave.
g. Lucy Abbattello
Tierney testified that on February 17 Betzner gave Lucy
Abbattello card G.C. 2(bbb) in the laundry room; Abbattel-
lo filled out the card in part and signed it; and Abbattello
returned the card to Betzrier who in turn handed it to Tier-
ney. Tierney recalled that Betzner asked Abbattello "if she
92 Zayas assertedly started work early in February.
93 Tierney's prehearmg affidavit states that she did observe Zayas sign.
Tierney explained that "at the time I thought she had signed" in Tierney's
presence
94 Tierney claimed that the fact that Boguski could speak Polish "had
nothing to do with it" and that Czyz could speak "clear" English. Tierney
could not explain who placed the "X" on card G.C. 2(xx) in the signature
box before Czyz' signature.
wanted to join the union . . . "; Abbattello said yes; and
Betzner told her "to fill out the card."
Betzner testified that she gave Abbattello card G.C.
2(bbb) in the basement area; Abbattello "read it and filled
it out"; Abbattello signed it; and she believed Abbattello
returned the card to Tierney.
h. Vivian Nugent
Delores Dean testified that she gave union membership
cards to a number of employees; in particular, she gave
Vivian Nugent card G.C. 2(jj) in the home's sitting room
during February; and Nugent "read it," "signed it," and
gave it back to Dean. Dean recalled that Nugent dated the
card February 24. Dean also recalled that she "asked [Nu-
gent] if'[Nugent] wanted to join a Union" before giving her
the card.
i. Joyce Jones
Union Representative Brown testified that employee
Joyce Jones was a member of the Union's organizing com-
mittee ; Brown met Jones on many occasions at meetings
and at the home; and he gave Jones a union membership
card in the home's parking lot on the first Saturday (Febru-
ary 20), following the February 16 Union meeting. Brown
recalled: "I remember distinctly giving her a card and ex-
plaining to her what the Union was all about and what the
card was." (See Brown's related testimony, supra, section II,
B.) Brown testified that Jones later handed him card G.C.
2(i) and the card had her signature on it.95 Further, Brown
testified that the date on G.C. Exh. 2(i) was February 23;
he did not recall the day he received the card back; and the
card was submitted to the Union's New York City office by
March 1 and, as the card shows, was received by the Board's
Boston Regional Office on March 5. Further, Brown testi-
fied that he told Jones when he gave her the card "that the
card was an application for membership in the Union ... "
and that "if we were not able to get recognition . . . we
would use the card to go to the Labor Board to petition for
an election... .
Employee Pat Izzo testified that she had known Jones for
a number of years; that she "broke [Jones] in . . . at the
home. Izzo testified , inter alia , that she was familiar with
Jones' signature because Izzo saw Jones sign worksheets,
and in her view the signature on card G.C. 2(i) was Jones'
signature.
j. Mamie Lee, Gertrude La Rocque, and John Donahue
La Rocque was employed at the home as a traygirl in the
kitchen during 1971. She identified union card G.C. 2(t) as
the card which she had signed on February 25. She testified
that Mamie Lee, John Donahue, and herself were working
in the kitchen that day; two coworkers-one of whom was
Novicki-solicited their signatures to the cards; and all
three read and signed union cards.96 She recalled giving her
95 Brown testified that current efforts to locate Jones have been unsuccess-
ful.
96 La Rocque explained that Donahue filled in the date of February 25 on
her card because "she had given back [her] pen and she couldn't find it, so
NEW FAIRVIEW HALL CONVALESCENT HOME 725
card to Donahue after signing it; "he was holding it until
the next morning and then he was going to turn it in." La
Rocque also identified card G.C. 2(u) as the card of cowork-
er Mamie Lee, which she assertedly observed Lee fill out
and sign. La Rocque assertedly observed Lee give this card
to Donahue. Donahue's card is G.C. Exh. 2(p). The employ-
ees, according to La Rocque, were told to sign " ... if we
wanted to join the union.... '
La Rocque, as she testified, asked the card solicitor or
solicitors "what would happen if the Union got in and they
said there would be an election." Further, one of the solici-
tors assertedly told La Rocque that "most of the girls had
signed cards." La Rocque later explained that she was told
"that if the union got in they would elect officers" and that
"most everyone had signed the card." La Rocque was un-
sure whether the three workers signed in Novicki's presence
that night; she later reaffirmed in part her prehearing state-
ment that the cards were signed in the presence of Novicki.
Further, La Rocque testified that Novicki "asked if we
would sign a union card"; La Rocque said "yes if everybody
else was going to sign it"; and Novicki said "almost ev-
eryone had signed them" or "about 55 percent" or "some-
thing about 55"-"I think it was 55 people." La Rocque
added: "I didn't ask for how many people signed the card";
she read it first and signed it voluntarily; she was unable to
recall or remember whether the solicitor's reference to an
election was to a Labor Board or a union election; she later
recalled that the solicitor said that if the Union got in, they
would have an election of officers, and that "almost ev-
erybody had joined."
Employee Rachel Novicki testified that she gave cowork-
er John Donahue a union card in the elevator; Donahue put
the card in his pocket; and later on February 25 he returned
it to her "filled out" and "signed." (See G.C. 2(p).) 97
Mamie Lee testified that she is presently employed as
cook at the home. (The events attending and following Lee's
refusal to join the Union's picket line are discussed in sec-
tion IV, E, (4), infra.) Lee testified that she signed G.C. 2(u)
on February 25. According to Lee, she spoke to Tierney that
same day before signing the card and Tierney said:
... we are trying to get a Union . . . 80 percent of the
employees had already signed 'cards . . . if I [Lee]
signed the card then and the Union came in, it would
only be five dollars. . . . But if I waited it would be 25
dollars.
Lee further testified: " ... well, if 80 percent have already
signed, my vote wouldn't keep it in or out.... " Lee assert-
edly told Tierney: "I'm not signing the card for the money
.... If I don't get enough here, I can always get another
job. I'm signing for security." Lee further testified that Tier-
ney said: " ... if I didn't sign up then, after the union got
in, it would be 25 dollars. And if I didn't pay the 25 dollars,
it would be a closed hospital and I couldn't work there." Lee
testified that Donahue and La Rocque signed cards at the
same time; that she saw them sign; and that Eleanor Doug-
[Donahuel just filled in the date" on her card in her presence
97 Union Representative Brown testified that Donahue attended two union
meetings prior to the strike , picketed, received strike benefits , and otherwise
.participated in union activity. According to Brown, Donahue subsequently
moved to Puerto Rico
las gave her the card which she signed and Douglas "didn't
say anything to" Lee. Lee acknowledged that prior to sign-
ing the card she looked it over, read it and signed it "volun-
tarily." Lee explained that Tierney's conversation with her
was before signing the card; that Tierney said the $5 was for
"joining fees"; and that Tierney said "it would be $5 to join
... if I signed the card then.. "
(And see Brown's related testimony concerning the
Union's policy and his statements to employees about "ini-
tiation fees" and "dues," section II, B, supra.)
k. Frances Tricaso
Frances Tricaso testified that she signed card G.C. 2(ccc)
on February 24. Tricaso explained that Novicki gave her the
card and said:
Here's a card that some of the girls have signed .. .
would I [Tricaso] be interested in signing it and I said
yes.
Tricaso assertedly took it home, read it, filled it out, and
signed it. According to Tricaso, Novicki said: " ... we
wanted a union." Tricaso returned the signed card to No-
vicki. Tricaso also recalled that Novicki said "most" of the
girls had signed, but "no specific number" was mentioned.
When Tricaso was asked whether Novicki had said "most"
or "some" of the girls had signed, Tricaso said: "I really
don't remember." Later, Tricaso testified: "I don't remem-
ber whether [Novicki] said most of them or all the girls had
signed...... Tricaso was unsure. Later, she acknowledged
that "most was her best recollection."
1. Myrtle Gargiulo
Myrtle Gargiulo testified that she signed union card G.C.
2(bb). The date on the card is February 24. The card also
has a union date stamp of March 1 and a regional Board
date stamp of March 5 .11 Gargiulo assertedly did not date
her card; she does not remember the date on which she
signed the card; she filled out the card in all other material
respects. Further, Gargiulo testified that coworker Douglas
solicited her signature. Douglas assertedly said:
... if I [Gargiulo] would like to join the Union, if I
would sign the card, and I said yes. . . , [Douglas] said
if we didn't get ... if the Union didn't get in, we
would like get an election .. .
Further, Gargiulo recalled that after she signed, Douglas
said: " . . . we are trying to get an election." Gargiulo, after
reviewing her preheating statement, recalled that Douglas
said: " ... we would like to have the Union recognized,
and if not we could have an election."
98 According to the testimony of Union employee Kalinin, whose testimo-
ny I credit, on March 2 the Union mailed from its New York City office 31
cards and a letter, including the card of Gargiulo, to the Boston regional
office.
726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
m. Lois Fazzino "confused." As she testified:
Employee Lois Fazzmo testified that she signed union
card G.C. Exh. 2(pp) on February 20; her daughter Mary
Jane Fazzino filled the card out for her; and Mary present-
ed the card to her for signing. According to Lois, she was
told that the "purpose" of the card was "to belong to the
Union." Lois did not date the card and she believes that the
date on the card is the date when she signed. There is a
March 1 union stamp and a March 5 regional Board stamp
on the card. This card was also included with the 31 cards
mailed on March 2 by the Union from New York City to
the Board's Boston office.
Mary J. Fazzino testified that her mother, Lois, signed the
card on February 20; that she told Lois at the time " . .
we were trying to get Local 1199 as . . . a Union.... "
Mary further testified that she told Lois that "it was a Union
membership card," and Lois read it.
n. Patricia Izzo
Patricia Izzo testified that she signed union card G.C. 2(v)
on February 23. Izzo received her card from Douglas. Izzo
read the card and signed it. According to Izzo , Douglas had
telephoned Izzo the evening before and asked:
... if I [Izzo] wanted to sign a Union card, they were
going to have a Union, Local 1199, and she said that,
I think, 30, 35 people had signed. . . . [Izzo] told
[Douglas] " ... I don't care who's signed. I want it
Izzo signed the next day, February 23, in the home's parking
lot.
I think I'm getting you all confused and I'm getting
myself nerved up... .
Rich was unsure whether Adorno specifically had said "we
all got to sign." Rich claimed : ". . . I wouldn't say I was
afraid of her [Adorno ]. I was just following suit to satisfy
'em. I worked with . . . [Adorn] and I was working with
her and got along with her and so I adjusted myself to
her."2
p. Eleanor Schappa
In dispute is what day Schappa signed union card O.C.
2(k); that is, either February 25 or March 25. Schappa's card
is dated March 25 and her prehearing affidavit indicates
that the card was signed on March 25. However, Schappa
testified that she made a mistake in dating the card March
25 and that she really signed the card on February 25.
Likewise, Schappa explained that her affidavit also mistak-
enly refers to the March 25 date. Union Representative
Brown also testified that he received Schappa's card before
asking for recognition on March 1. I credit Schappa 's testi-
mony as corroborated by Brown that her card was in fact
signed on February 25.
q. The remaining 21 cards
As stated, the remaining 21 of the 39 cards offered into
evidence in support of the Union's March I claim of majori-
ty are not specifically controverted in Respondent's post-
hearing brief (pp. 213-217, 203-213). I find and conclude on
the evidence adduced that the following 21 unit employees
voluntarily signed union membership cards on the dates
o. Rose Rich,
Rose Rich is presently employed as a traygirl at the home.
Rich testified that she signed union card G.C. 2(y) on Feb-
ruary 25. Panay Adorno, a cook, gave her the card in the
kitchen, Rich signed it and returned it. According to Rich,
Adorno said: "We're alljoining a Union and you got to sign
this card." Rich assertedly "didn't ask any questions .. .
[she] just went along with it.... " Rich admittedly never
asked for her card back; she, read the card and signed it
"voluntarily"; she subsequently attended Union meetings
and wore a Union button.
Rich explained that Adorno was a kitchen employee.
Rich claimed that Adorno said: "we all have cards to
sign"-we all "got to sign." Rich then claimed she was
99 Lois acknowledged that she gave a preheanng statement to Board coun-
sel declining to identify her signature , the solicitor or the person to whom she
returned the card. She gave a later preheanng statement consistent in materi-
al part with her testimony . She explained that at first she "didn't want to get
involved" and that her second statement is correct.
i Mary J Fazzmo also assertedly signed a card before this date, which
card was lost by someone in the Union . Union Representative Brown also
testified that he had received a union card from Mary J. Fazzino on February
23 and "the card was lost" some time later . I credit their mutually corrobora-
tive testimony , however, I deem it unnecessary to determine whether the lost
card should be counted for majority.
indicated:
G.C. 2(n) Arabo 2/17
G.C. 2(a) Betzner 2/16
G.C. 2(rr) Cicarelli 2/17
G.C. 2(dd) Clough 2/23
G.C. 2(cc) Conroy 2/23
G,C. 2(ii) Dean 2/24
G.C. 2(f) Douglas 2/16
G.C. 2(o) Farrell 2/27
G.C. 2(aa) Hennessey 2/24
G.C. 2(qq) Hoffman 2/26
G.C. 2(e) Novicki 2/16
G.C. 2(b) O'Conner 2/16
G.C. 2(w) Pace 2/17
G.C. 2(x) Page 2/17
G.C. 2(ee) Perry 2/25
G.C. 2(g) Pope 2/26
G.C. 2(r) Richards 2/24
G.C. 2(c) Rubino 2/16
G.C. 2(s) Smith 2/24
2 Rich, as she testified, later spoke to Shepard, she "was wormed about
[her] fob... " Rich, as noted, never asked for her card back although she
assertedly told Shepard that she "didn't want any part of the Union." Shep-
ard assured Rich that she "didn't have anything to wont' about " The events
attending Rich's refusal to join the strike are discussed infra, section IV, E,
(5)
NEW FAIRVIEW HALL CONVALESCENT HOME 727
G.C. 2(d) Tierney 2/16
G.C. 2(1) Vaiculis 2/23
2. Respondent's contentions with respect to the above 39
cards
Respondent argues in its brief (pp. 203-206) that "cards
allegedly authenticated by Tierney, a most incredible wit-
ness, may not be counted in determining the Union's major-
ity status." I reject this contention. Instead, I find and
conclude that Tierney's testimony pertaining to, inter alia,
the cards of Sein, D' Alger, B. Alger, Bernard, Zayas, Czyz,
and Abbatello (as summarized above) is trustworthy and
credible. Tierney's testimony stated above is corroborated
in part by Betzner, by the cards themselves, by the events
attending the execution of the other cards and by the testi-
mony of Brown. (See section II, B, supra.) 3 Likewise, I
reject Respondent's contention that the "cards allegedly
authenticated by Dean, also a most incredible witness, may
not be counted in determining the Union's majority status"
(br., pp. 207-208). Instead, I find and conclude that Dean's
testimony with respect to, inter alia, the Nugent card (dis-
cussed above) is credible and is corroborated in part by the
card itself, by the events and circumstances attending the
execution of other cards and by the testimony of Brown (see
section II, B). Respondent further argues (p. 209): "Brown's
lack of credibility mandates that the card of Joyce Jones
(discussed above), which allegedly had been authenticated
by him, not be counted in determining the Union's majority
status." I find and conclude instead that Brown's testimony
summarized above with respect to this card is credible and
is corroborated in part by the events and circumstances
attending the execution of the various cards. (See section II,
B.)
Respondent argues (br. p. 210) that the card of Tricaso
(discussed above) may not be counted because Novicki
"materially misrepresented that most of the girls had al-
ready signed cards.... " However, as shown, Tricaso was
uncertain whether Novicki said "some" or "most" of her
coworkers had signed cards. Tricaso could not recall with
certainty what words were actually used. Further, I note
that Tricaso, as she testified, took the card home, read it
over, and voluntarily signed it. She thereafter participated
in the Union's campaign. Under the circumstances, I find
and conclude that Tricaso did not sign the card in reliance
upon any misrepresentations. Moreover, as the Board and
courts have stated, "[s]uch puffing does not vitiate the cards
unless the comments were a means of coercing the employ-
ees to sign cards out of fear of majority reprisal [and, here,
there] was no showing that any threats were used against a
signer of a card.... .. Amalgamated Clothing Workers of
s Respondent cites differences between Tierney's testimony and her affi-
davits with respect to card solicitations. In the context of the Union's exten-
sive campaign, I do not regard the cited differences as significant. Likewise,
Tierney's claim that Czyz could speak `blear English"-in the context of
Tierney's explanation that Boguski explained the card in English and Polish
to Czyz-does not render Tierney's testimony incredible as claimed by Re-
spondent. Further, Betzner's statements in her prehearing affidavit (as to
what Brown told the card solicitors) do not, under the circumstances, discre-
dit Betzner's testimony at the hearing with respect to specific testimony as
to the card solicitations.
America v. N.L.RB., 365 F.2d 898, 908 (C.A.D.C., 1966).
And, see N.L.R.B.'v. Gafner Automotive & Machine, Inc.. 400
F.2d 10 (C.A. 6. 1968); N.L.R.B. v. Cactus Petroleum, Inc.,
355 F.2d 755, 760, fn. 8 (C.A. 5, 1966); Marcellus S. Merrill,
d/b/a Merrill Axle and Wheel Service, 158 NLRB 11 ,13
(1966), enfd. 388 F.2d 514 (C.A. 10, 1968); City Welding and
Mfg. Co., 191 NLRB 124 (1970), enfd. 463 F.2d 245 (C.A.
3, 1972).
Respondent argues (br. p. 210) 'that Mamie Lee's card
(discussed above) may not be counted because Tierney as-
sertedly told Lee "that 80 percent _of the employees had
already signed the cards" and "if [Lee] signed the card and
the Union came in it would only be five dollars . . . if [she]
waited it would be 25 dollars...." a Tierney denied
Lee's testimony. Tierney, as Lee acknowledged, did not
solicit the card signature from Lee. And the record does not
show that Tierney made the same representations to other
employees although she had, as stated, urged numerous
employees to sign cards. Further, in view of Brown's expla-
nations to Tierney and others at the early union meetings
with respect to the purpose and nature of the cards and the
Union's initiation fee and dues policies (supra, section II, B),
I am not persuaded that Tierney made the specific state-
ments attributed to her by Lee. Moreover, Lee did not rely
upon those claimed misrepresentations. Lee assertedly said
to Tierney that she was "not signing the card for the money
... [but for] security." When Lee later received a union
card from Douglas, she read it and she voluntarily signed
it. And, prior to the strike, Lee participated in various union
activities. Under the circumstances, I do not find that Lee
was improperly induced into signing her card. See, general-
ly, Gafner Automotive & Machine, Inc., 156 NLRB 577, 578,
fn. 1 (1966), and cases cited, enfd. 400 F.2d 10 (C.A. 6,
1968). For, as the court stated in N.L.R.B. v. Southbridge
Sheet Metal Works, Inc., 380 F.2d 851. 855 (C.A. 1, 1967):
There is no evidence of such a "hard sell" as would
overcome the fact of signing a clearcut authorization
card. Moreover, the vacillating testimony of employees
in the hearing, held almost a year after the organized
campaign concluded and almost eight months after the
election, under the scrutiny of company counsel and
officials, illustrates the wisdom of requring fairly strong
evidence of misrepresentation and evidence of commu-
nication of recantation before cards secured at a much
earlier date are adjudged invalid.
And see : N.L.R.B. v. Gissel Packing Co., 395 U.S. 575, 606-
610 (1970); International Union, United Automobile ' Workers
[Preston Products Co.] v. N.L.R.B., 392 F.2d 801 , 806-808
(C.A.D.C., 1968), cert. denied- 392 U.S. 906.
Respondent argues that Gargiulo's card (discussed
above) may not be counted because she was assertedly told
by Douglas that the card would be used to get an election
(br. p. 211 ). However, the above testimony of Gargiulo
makes clear that Douglas did not misrepresent the purpose
of the card . See N.L.R.-B. v. Gissel Packing, supra , 395 U.S.
at 606-610. Respondent also argues that La Rocque's card
a Lee assertedly was also told by Tierney that if she "didn't pay the $25
. [she] couldn 't work there......
728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(discussed above) may not be counted because she asserted-
ly was told that there would be an election and that 55
percent had signed cards (br. p. 211). However, as shown
above, La Rocque acknowledged in effect that she may
have been told by her card solicitor that if the Union got in
there would be an election of officers. La Rocque vacillated
as to just what was told to her about how many employees
had signed. She acknowledged reading the card and signing
it voluntarily. Under the circumstances, I find that La Roc-
que voluntarily and freely signed the union card. As the
court, in agreement with the Board, stated in Amalgamated
Clothing Workers of America v. N.L.R.B., supra, 365 F.2d at
908:
The' Board found that "a showing, without more, of a
misrepresentation as to the number of others who have
signed Union cards is insufficient to invalidate a clear
and unequivocal designation card signed by the em-
ployee."
And, in any event, La Rocque's vacillating testimony fails
to convince me that she signed her card in reliance upon this
claimed misrepresentation .5
Respondent also argues that "Novicki's misrepresenta-
tive's were also made to Donahue before he had signed a
card" (br. p. 211, In. 204). However, I find that Donahue's
card (discussed supra) was also a voluntarily executed card
and should be counted.6 Further, Respondent argues that
Rose Rich's card (discussed above) should not be counted
(br. p. 213) because Rich "signed a card under duress." I
find, as her testimony shows, that Rich voluntarily signed
a union card. For, -as the Second Circuit stated in Snyder
Tank Corporation v. N.L.R.B., 428 F.2d 1348, 1350 (C.A. 2,
1970):
Primary reliance is placed on alleged misrepresenta-
5 Respondent cites La Rocque's testimony: "Well, I figured if everyone
else did, then I would sign" (br. p 211) Even assuming that La Rocque would
not have signed the card but for Novicki's statement as to how many others
had signed, her subjective state of mind should not impair an otherwise valid
card. See Gissel, supra, where the Supreme Court stated.
We cannot agree with the employers here that employees as a rule are
too unsophisticated to be bound by what they sign unless expressly told
that their act of signing represents something else. In addition to approv-
ing the use of cards, of course, Congress has expressly authorized reli-
ance on employee signatures alone in other area of labor relations, even
where criminal sanctions hang in the balance . . . and we should not act
hastily in disregarding congressional judgments that employees can be
counted on to take responsibility for their acts
s
We also accept the observation that employees are more likely than not
many months after a card drive and in response to questions by compa-
ny counsel, to give testimony damaging to the union, particularly where
company officials have previously threatened reprisals for union activity
.. We therefore reject any rule that requires a probe of an employee's
subjective motivation as involving- an endless and unreliable inquiry
s Respondent argues that Lois Fazzino's card (discussed above) may not
be counted because she did not understand what she had signed (br. P 211).
As demonstrated above, Lois Fazzino understood the purpose of the card
which she voluntarily signed Respondent argues (br. p. 212) Patricia Izzo's
card (discussed above) should not be counted because she was told that 30
to 35 employees had signed. Izzo, as noted, told her card solicitor that she
did not care who had signed and she voluntarily signed her card
tions made to the, employees as they signed. We must
adhere to the rule that:
... employees should be bound by the clear Ian -
guage of what they sign unless that language is delib-
erately and clearly canceled by a union adherent
with words calculated to direct the signer to disre-
gard and forget the language above his signature.
N.L.R.B. v. Gissel Packing Co., 395 U.S. at 606.
The cards were clear on their face; and the trial exam-
iner and the Board resolved what conflicting testimony
there was against the company. We cannot invalidate
a sufficient number of the cards to dissipate the majori-
ty without engaging in the forbidden practice of prob-
ing "an employee's subjective motivations." Id. at 608.
3. As of March 2 and 5 and April 1
I find and conclude that 39 of 58 unit employees volun-
tarily signed union cards by March 1. Concededly, the unit
contained the same number of employees on March 2. On
that day, employee Panay Adorno signed her card (G.C.
2(oo) ) 7 Consequently , as of March 2, the day when the
Union's telegram requesting recognition was received by
Respondent, the Union had 40 signed cards in a unit of 58.
Although it is unnecessary to discuss the remaining 14
signed cards received in evidence, I will discuss the cards
with reference to contentions raised by Respondent in its
posthearing brief (pp. 215-217). Thus, with reference to
March 5 , Respondent argues that "the cards of Couture and
Masiulis may not be counted . . . [and] the mere addition
of Buzzin's card ... brings the total number of cards to 23
.... "Respondent's claimed reason for rejecting the cards
of Couture and Masiulis is stated as follows (br., pp.
207-208):
As was the case with Tierney and Betzner the record
is replete with evidence establishing Dean's incredibili-
ty, evasiveness and deceitfulness. In view of her over all
unreliability, the cards allegedly authenticated by
Dean should not be counted in determining the
Union's majority status in the absence of credible cor-
roborated testimony.... ,
However, I credit Dean's testimony that on March 5 she
gave a card (G.C. 2(kk)) to Helen Couture ; Couture read
it, signed it, and returned it. Likewise , I credit Dean's testi-
mony that she gave Marion Masiulis card G .C. 2(11) on
March 5 ; that Masiuhs "read it" and "signed it." 8
Accordingly, accepting Respondent's computation of the
unit as of March 5 to be 58 (excluding Pyne, Reynolds,
Bergmann , and Melchiodi) (br. p. 215), I find and conclude
that the Union secured the three additional cards of Buzzin
(G.C. 2(g) ), 9 Couture (G.C. 2(kk) ), and Masiulis (G.C.
r Adorno testified that on March 2 she was presented a card at lunch time
by Cicarelli , that Adorno "read it," "signed it," and gave it back to Cicarelli
that same day. I credit her testimony.
8 Dean credibly explained that this card, although dated March 5, 1970,
should be March 5, 1971. There was no union campaign in 1970.
9 Union representative Brown testified that he received Buzzin's card on
NEW FAIRVIEW HALL CONVALESCENT HOME 729
2(11) ), bringing the total of signed cards to 43 out of 58 unit
employees as of March 5. '
Respondent next argues that (br. pp. 216-217):
On April 1, 1971, the date on which Seelig requested
recognition from Daniel Donovan at the representa-
tion hearing in Boston, there- were 65 employees in the
unit.. . . [or 61 as explained above] On March 7, 1971,
Violet Hoffman ceased employment with the Employer
(G.C. 45, 51). Accordingly, her card must be discount-
ed . . . Counsel for the General Counsel added six (6)
more cards, including Schappa's, in support of the
Union's majority status:
1. Williams (G.C. 2(h) )
2. Twarkins G.C. 20))
3. Schappa (G.C. 2(k) )
4. Gaura (G.C. 2(z) )
5. Paluha (G.C. 2(gg) )
6. L. Reynolds (G.C. 2(mm) )
Of these six, Respondent argues (p. 217) that "L. Reynolds
may not be counted" because Dean solicited Reynolds'
card. However, I find that Schappa in fact executed her card
on February 25 and not March 25 (as discussed above) and
further that Dean credibly testified that Reynolds read and
signed her card on March 11 in Dean 's presence . Accord-
ingly, accepting Respondent's computations, the Union lost
Hoffman and acquired five more signatures or some 47 out
of 61 unit employees as of April 110
Respondent, in his posthearing brief (p. 217), does not
specifically discuss the Union's card status after April 1.11
As Respondent stated (p. 213): "contrary to the assertion
proffered by counsel for the General Counsel the Union
requested recognition on four dates, to wit: March 1, 2, and
5 and April 1, 1971 it was not a continuing demand." I
have discussed above and find that the Union demanded
recognition in the unit alleged as an appropriate unit on
March 1 and 2. I find and conclude that there were further
requests at least up to April 7. Thus, by letter dated March
11 Respondent rejected the Union's earlier requests for rec-
ognition. Later, on April 7, at the representation proceed-
ing, the Board's hearing officer stated:
Petitioner on March 1, 1971, in writing requested rec-
ognition as bargaining agent for the employees in the
requested unit. The Company on March 11, in writing,
refused to grant recognition unless and until Petitioner
was certified by the National Labor Relations Board.
Does the Company, at this time, decline to recognize
the Petitioner as the exclusive bargaining agent for the
employees in the unit petitioned for, until such time as
it is certified as such in an appropriate unit determined
by the Board? ... .
Counsel for Respondent acknowledged "that is correct."
Under the circumstances, I find and conclude that there was
a continuing demand up to May 6, when the strike com-
menced. Cf. N.L R.B. v. Kostel Corp., d/b/a Big Ben Shoe
Store, 440 F.2d 347 (C.A. 7, 1971). In any event, on the
foregoing evidence, I find and conclude that a majority of
employees in a unit appropriate for collective bargaining
voluntarily and knowingly signed valid union authoriza-,
tions designating the Union as their bargaining agent by
March 1 and April 7.
March 4 in the mail The card is dated March 3 and postmarked March 4.
Buzzin credibly testified that Dean gave her a card at the home, she signed
it and later mailed the card to the Union. Buzzin's card is not specifically
discussed by Respondent in its brief.
111 find that employee Williams voluntarily executed union card (G C.
2(h) on March 9, employee Twarkins voluntarily executed G.C. 20) on
March 11, employee Guara voluntarily executed G.C. 2(z) on March 11; and
employee Paluha voluntarily executed G.C. 2(gg) on March 24. Respondent
makes no specific contentions in his posthearmg brief as to these cards (pp.
203-217).
11 Respondent, in arguing that all cards authenticated by Tierney should
not be counted (br. pp. 203, 206), cites the card of employee Lomplew Roy
which Tierney testified was executed by Roy on April? (G C. 2(zz) ). I credit
Tierney's undenied testimony. I find that Roy understood what she was
signing. Likewise, Respondent would exclude Sewell's card (G.C. 2(nn) )
because it was authenticated by Dean as signed on April 15 (br p. 207). 1
credit Dean's testimony in this respect.
Dean also solicited Stopka's signature on card G.C. 2(hh) which, according
to Dean and Stopka, was signed on April 28 (Resp. br. p. 207). Stopka,
although uncertain as to what was stated to her, claimed that she was told,
inter alia, "mostly everybody had already signed" and someone said that she
had to sign to vote-"not an election, just to vote." Stopka understood that
the card was for membership in the Union Stopka had signed a union card
about 6 months earlier at another nursing home. Dean denied making the
above statements to Stopka. Under the circumstances, and in view of the
employee's vacillating and uncertain testimony, I credit Dean and find that
Stopka voluntarily signed her card on on April 28. And see N.L.R.B. v. Gissel
Packing, supra, 395 U.S. at 607-608, and cases cited above.
Respondent would also exclude the card of Adams because it was authen-
ticated by Tierney (G.C 2(aaa), (Resp. br. p. 203) I credit Tierney's testimo-
ny that Adams voluntarily signed her card on April 7.
Further, Respondent argues (br. p. 212) that the card of Shelly Coldfarb
(G.C 2(m) ), dated March 24, "may not be counted because it was signed
IV THE EVIDENCE PERTAINING TO THE CONDUCT OF THE UNION
AND THE EMPLOYEES DURING THE STRIKE
A. The "CB" Cases
Respondent-in support of its various contentions relat-
ing to alleged union and employee misconduct before and
during the strike-requests that I take notice of the charges,
complaint, settlement agreement, and related documents in
Cases 1-CB-1811 and 1-CB-1847. I have taken official
notice of these proceedings as requested. The "CB" cases
principally pertain to union misconduct during the strike at
the Employer's nursing home. And, on March 27, 1972,
while the instant case was being tried before me, the Board
approved a stipulation for the entry of a consent decision
and order against Charging Party Union in the related "CB"
cases (DS 297; Cases l-CB-1811, 1847.12 The Board's
order enjoins the Union from, inter alga, engaging in picket-
at night on March 24 and placed in a post office depository on March 25,
the same day she quit working for the Employer, because she did not want
to participate in a strike " However, Goldfarb credibly testified that she read
it over, brought it home, and signed the card. She "understood it was to be
a membership in the union . ", and she was working when she signed it.
I find that she voluntarily signed the card and it should be included
Finally, Linda Sue (Alger) Fafard testified that she signed G.C. 2(ff) on
April 9; Brown gave her the card, and she voluntarily signed it and returned
it. I credit her testimony
12 The stipulation was entered into about November 30, 1971.
730 - DECISIONS OF NATIONAL LABOR RELATIONS)BOARD
ing that blocks the ingress and egress of employees and
other persons at the Employer's New Haven facility; dam-
aging vehicles or other property of employees; threatening
or assaulting employees or other persons because of their
desire to cross the picket line or to refrain from joining the
strike; following employees to and from work; and in any
manner restraining or coercing employees in the exercise of
their Section 7 rights. Affirmatively, the Union was directed
to, inter alia, post the required notices. 13 On April 17, 1972,
pursuant to the stipulation, a judgment was entered by the
Second Circuit enforcing the Board's order as summarized
above. Thereafter, by letter dated July 18, 1972, all parties
were advised by the Acting Regional Director in Cases 1-
CB-1811 and l-CB-1847, as follows:
Respondent having satisfactorily complied with the af-
firmative requirements of the Judgment in the above-
entitled case, and the undersigned having determined
that the Respondent is also in compliance with the
negative provisions of the Judgment, the case is hereby
closed.
Please note that the closing is conditioned upon contin-
ued observance of said Judgment and does not pre-
clude further proceedings should subsequent violations
occur.
The evidence adduced before me pertaining to the
Union's and employees' alleged acts of misconduct during
the strike is summarized below:
B. The Union's Attempt to Enter the Home on May 9
On Sunday May 9, there were approximately 125 persons
gathered and congregated in or about the driveway and
entranceway to the nursing home facility. There were two
New Haven policemen stationed at the base of the drive-
way. Union Representatives Leonard Seelig, Roosevelt
Ward, Vincent Ciulla, and Bill Morico were present.14 May
9, because it was Sunday and Mother's day, was a busy
visiting day at the nursing home.
Jeremiah Donovan testified that about 2:50 p.m. that day
a police truck parked near the driveway and two policemen
walked over to the truck. About this same time, some 40
persons stood around an automobile attempting to leave the
facility. The policemen noticed and responded to the
blocked vehicle. In the meantime, Union Representative
Brown, Louise Tierney, Mary Jane Fazzino, Delores Dean,
Marsha Twarkins, Joyce Jones, Grace Betzner, and other
employees assembled on Clifton Street about 50 feet from
13 The Employer, Charging Party in the CB cases and Respondent herein,
objected to approval of the above settlement. The Boaid, in rejecting
Respondent 's contentions , noted.
. . the approval by the Board of this Stipulation shall not be deemed
to preclude the Charging Party [Employer] from adducing in the unfair
labor practice proceeding against it [the instant proceeding] evidence
with respect to the matters herein settled, notwithstanding the settlement
. to the extent such evidence is relevant
14 Union Representative Brown acknowledged that there were about 100
pickets or demonstrators at the facility on May 9. Brown testified that "there
was a picket line set up in the driveway, in the street at the bottom of the
driveway, and we also had some people across the street in the park ... ,"
where speeches were being made by, inter atra , Union representatives.
the driveway. Suddenly,, Brown, Betzner, Tierney, and
others in their group started to run toward the front door
of the nursing home, cutting across the grass, dirt, and the
rampway.15 At the same time, Jeremiah Donovan, Vincent
Distasio, Robert Seymour, Rick Kirshneur, and Robert
Murphy, all working inside the facility, ran to the front door
in order to prevent Brown and the others from entering.
Jeremiah Donovan testified:
When I got down to the front door of the nursing home
on the second floor, Bob Seymour was there. Bob Mur-
phy was there, Vinny Distasio was there. Rich Kirshn-
eur was there. At this same moment the door came
flying open. Jerry Brown was there in the doorway and
there was a large group of people coming behind him
across this ramp.
Donovan further explained:
Mr. Brown opened the door and reached in and opened
that second door. These people were all coming and we
were trying to push them out just as hard as we could
push them out. Hands were flaying and flying and we
got the door shut. As they were coming in, there was
Grace Betzner, Delores Dean [and another person] .. .
They were trying to get in. We got the right hand door
shut and we got them pushed out and we were trying
to get the left hand door shut. A police officer reached
in and pulled out Mr. Brown and then he reached in
and pulled out Grace Betzner.
Betzner, assertedly, "was right in the doorway screaming
"; "Louise Tierney was standing there and Delores
Dean was there. I [Donovan] got the door shut and got it
locked." 16
Robert Seymour testified:
I tried to push these people back and get the doors
closed. And Jerry Brown came through the door. He
was inside the doors. And Grace Betzner came in and
sat right down on the floor inside the door. . . . She
was screaming ... as were the other people outside the
doors. Well, we managed to get the doors closed. And
the police officer finally arrived. And he opened the
door to the left and pulled both Jerry Brown and Grace
Betzner out of there.
15 Brown testified that for "the last few steps I did break into a trot, not
running . . . I didn 't race ... " Brown explained
I saw some people coming from inside the nursing home running down
the stairs [through the windows]. I saw them running down the stairs and
I wanted to open the door because I wanted to go inside the nursing
home.
Tierney claimed "We walked across the lawn, up the driveway and I only
got as close to the Home as the [ramp] that goes across the entranceway."
Tierney claimed that none of the participants ran.
16 Robert Seymour explained that "Jerry Brown reached in and opened
the [second] door [at the entrance]'by pulling on the panic bar to open both
of the front doors " Seymour added "There was Louise Tierney. I saw her
on the rampway Mary Jane Fazzino. Other people I didn't identify . .
Everybody was coming in... " Vincent Distasio observed Brown open the
front door, he saw some 25 persons out there; "And then Mary Jane Fazzino
and Grace Betzner fell on the floor, half way in and half way out"; "Jane
Fazzmo's mother [ Lois] was running up screaming that they had hit her .. .
and they were beating up her daughter or something like that.... The
police came in after that."
NEW FAIRVIEW HALL CONVALESCENT HOME 731
Jeremiah Donovan testified that he, Murphy, Distasio,
Betzner, and Brown were arrested following the above inci-
dent.17
C. The May 23 Car-Following Incident
About May 23, William Seymour and another person
working at the nursing home left the facility in a motor
vehicle in order to drive nonstriking employee Theresa Bos-
quet to her residence. Union Representatives Brown and
Ward followed the Seymour vehicle in their own car. While
driving Bosquet home, Seymour noticed two nonstriking
housekeepers walking home and he offered them a ride.
Brown and Ward continued to follow the Seymour car.
When the two housekeepers left the Seymour car, Ward
allegedly was observed by Seymour making comments to
the two housekeepers and shaking his fist at them.18 Sey-
mour then drove to Bosquet's residence. Brown and Ward
continued to follow the Seymour car. According to Sey-
mour, Bosquet stated that she did not want to go into her
home and they then drove back to the nursing home. Sey-
mour reported the above incident to Jeremiah Donovan and
was instructed to attempt to drive Bosquet home a second
time.
Seymour, accompanied this time'by Rick Kirshneur and
Bosquet, left the facility in their car. Brown, Ward, and two
other female passengers followed in the second car. Jeremi-
ah Donovan and Carl Nickerson followed in the third car.
While en route, Seymour stopped his car at a store. Kirsh-
neur went into the-store. Brown parked the second car be-
hind the Seymour car. Ward followed Kirshneur into the
store. Then, Nickerson and Jeremiah Donovan arrived in
the third car and parked adjacent to the- Seymour vehicle.
Kirshneur left the store followed by Ward. Seymour and his
people then drove off in the first car; Nickerson and Jeremi-
ah Donovan quickly pulled behind Seymour in their car;
and Brown and Ward followed in their vehicle. About this
same time, a fourth vehicle driven by Stephen Brown,
Union Representative Jerome Brown's brother, accompa-
nied by a nonemployee male passenger, followed Jerome
Brown's car.
The four vehicles drove along Grand Avenue for a num-
ber' of blocks. Jerome Brown unsuccessfully attempted to
pass the Nickerson-Donovan vehicle. At the corner of
Grand Avenue and Ferry Street, Seymour stopped his car
in the left lane for a red light. Nickerson pulled his car
behind Seymour's car. Jerome Brown also pulled his car
behind the stopped cars. However, Stephen Brown drove his
n The above summary is based in part upon the testimony of Jeremiah
Donovan as corroborated in part by Distasio and Seymour and substantiated
in part by Brown and Tierney. Insofar as the testimony of Tierney and Brown
conflicts with the testimony summarized above, I credit the testimony of
Jeremiah Donovan, Distasio, and Seymour as a more accurate account of the
incident
is The two housekeepers assertedly are Sophia Tyc and Ann Czyz
vehicle into the right lane, passed all three stopped cars, and
backed up bumper-to-bumper with the first vehicle,
Seymour's car. Stephen Brown got out of his car holding a
"tire iron." Jerome Brown got out of his car, took the tire
iron from his brother, waived the tire iron over the Seymour
vehicle and assertedly threatened to break the windshield of
the Seymour vehicle if that car moved. Then, Jeremiah
Donovan got out of the Nickerson car carrying or holding
a "piece of wood." About this time, youths wearing jackets
identifying themselves as the "Crusaders" arrived at the
scene.19 An exchange of words ensued. The police arrived
and no arrests were made. Seymour continued to drive Bos-
quet to her home and Union Representative Brown fol-
lowed the Seymour ear.20
D. The Leaflets Distributed During the Strike; Statements
Made to Visitors; The Union's Appeals to State and Local
Agencies
Brown testified that on May 9 and various other days
during the strike union representatives and members of the
organizing committee distributed a handbill to "strikers,
members of their family who may have been there .. ;
visitors and workers who crossed the [picket] line.... "
The pamphlet, entitled "Peddlars [sic] of Health Care,"
states in part as follows:
The Management of New Fairview Hall Nursing
Home is completely irresponsible. Its only concern is
profits out of the sick. It DOES NOT give a CARE for
the patients and for the workers.
This irresponsible Nursing Home has caused a lockout
of its workers and has left its patients defenseless.
THEY FIRED A WORKER WHO REFUSED TO ACCEPT A $200 00 BRIBE
FOR TURNING THE WORKERS AGAINST THEIR UNION
This Nursing Home is violating the National Labor
Relations Law through its dirty dealings against the
workers.
This irresponsible Nursing home has hired the worst
anti-union lawyers in the country in order to deny their
workers their basic rights.
19 There was testimony that so-called "Crusaders" were present at the
picket line during the strike
20 Brown claimed, inter alra, that he followed the car transporting Bosquet
in order to find out where she lived so that he could ask her not to cross the
Union's picket line. Brown could not recall how many times this employee
was followed home Brown also claimed, inter aka, that he held the "tire iron"
and otherwise conducted himself to protect his people until the police ar-
rived
The above summary of facts is based upon the testimony of Jeremiah
Donovan and Seymour as substantiated in part by Brown. Insofar as Brown's
version differs from the above, I credit the testimony of Donovan and Sey-
mour as a more accurate account of this incident.
732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The patients are suffering while this irresponsible Man-
agement is playing games with their lives.
Please call upon the Governor to intervene and to re-
strain the unscrupulous peddlers of health care from
gambling with the lives of the patients. -
PLEASE SUPPORT US BY ASKING THE GOVERNOR TO REMOVE THE
PATIENTS FROM THE NEW FAIRVIEW HALL NURSING HOME.
THE NEW FAIRVIEW HALL NURSING HOME WORKERS
Union Representative Seelig, according to Brown , authored
the handbill , had it reproduced and brought copies to the
facility on May 9. Jeremiah Donovan observed Seelig, De-
lores Dean and Linda- Alger distributing the handbill.
About May 23, according to Brown , union representa-
tives and members of the organizing committee distributed
another handbill " . . . to anyone who entered the nursing
home-visitors, employees and family." This handbill, enti-
tled "From the Employees of Fairview Hall" " To All Those
Concerned," stated in part as follows:
We ask for your understanding of why we are out here
on strike because we would much rather be inside
doing our jobs, caring for a member of your family, and
earning our living.
There are 55 of us, and we joined the union of our
choice, Local 1199, some months ago and filed with the
National Labor Relations Board for an election. But
Fairview's administrator, Daniel Donovan, tried to get
us to join the union of his choice and we refused. He
even tried to bribe one of us to convince the others to
join his union. When the bribe was refused our fellow
member was fired., We are backing her up and-fighting
for our right to have the union we want, not the one the
- boss wants.
As a result of the strike there is inadequate staff, and
conditions for the patients are difficult. We respectfully
suggest that if you have someone in there, you seriously
consider moving him or her to another home where
normal conditions allow for proper care.
Union Representative Brown also acknowledged that on
occasion "we asked the visitors for and suggested to them
that they might take their patients out of there"; "we might
ask the visitor to talk to the management to end the strike
or perhaps to take the patient out because we felt they were
not getting proper care, being short-staffed and so forth."
And, Louise Tierney acknowledged that she "might have"
asked visitors "to remove their family from the nursing
home.... "
In addition, Brown acknowledged that "we did talk to the
State agencies . . . "; "On occasion we did ask for the re-
moval of patients if conditions were not bettered and if the
strike were not settled"; "We did contact Dr. Foote [of the
State health department] . . . the patients should be re-
moved." And, according to Tierney, union representatives
and striking employees went to the State Capitol and picket-
ed there. Tierney acknowledged that "we were asking Gov-
ernor Meskill to help us in our strike"; Tierney
acknowledged that the picket signs requested the Governor
to remove welfare patients from the nursing home.
In addition, on June 17,1971, the New Haven Alderman-
ic Committee on Health met concerning the Employer's
nursing home. Dr. Foote advised the committee by letter, in
part, as follows:
We have had a number of letters and telegrams con-
cerning the nursing home alleging unsanitary condi-
tions, inadequate staffing and various other so called
violations. -
We have made repeated inspections of the nursing
home, investigating each complaint that has been made
carefully. On each occasion we have found that sani-
tary conditions are good and that all of the require-
ments of the state regulations are being met. In fact, the
staffing at all times has been better than the average
found in nursing homes throughout the state and well
above the requirements of the state laws.
And, Edward McMahon, assistant director of the New Ha-
ven Health Department reported to the committee, in part,
as follows:
I spoke to Mr. Seelig and some of the workers. I was
told that the elevators were not in operation, there were
rats and roaches and the toilets were broken. ...I
had a tour of the convalescent hospital. I found plenty
of clean linen and the rooms were clean. I road [sic] the
elevators. I checked the toilets and I found no defects.
The kitchen was kept in a clean and sanitary manner.
I found no evidence of rats, but I did find mice drop-
pings. I suggested that they sweep them off the shelves.
I also suggested that they call an exterminator. I found
no evidence of cockroaches.
At this meeting, employee Panay Adorno stated: "I work in
the kitchen. I have seen rats. Every morning there are holes
[in] bread and rat droppings." Seelig stated at the meeting:
"The patients are not receiving the proper care?' 21
21 Brown acknowledged that Adorno "may well have" made the above
statements as reported in the minutes of the committee meeting.
The above summary of evidence is based in part upon the documentary
evidence quoted above as substantiated by the testimony of Brown, Tierney
and J. Donovan.+ Although Seelig is now deceased, I have carefully scruti-
nized the above evidence and, under the circumstances, find that he made
the various statements attributed to him as stated above.
NEW FAIRVIEW HALL CONVALESCENT HOME 733
E. The Bomb Scare and Statements to
Nonstriking Workers
1. The bomb scare
Shift Supervisor Dennison testified that during the week
following May 9 she received a telephone call afthe nursing
home. Dennison identified the "caller's voice" as that of
employee Delores Dean. According to Dennison, Dean
said: "That there was a bomb in the sitting room, laughed
and hung up." Dennison explained that there "were po-
licemen around ... " and she "told a policeman" about the`
calL Dean denied that she made such a call.22 Under the
circumstances and in the context of like and related conduct
I am persuaded that Dean made this call to Dennison as
testified by Dennison. I do not credit Dean's denial.
2. The visit to Cicarelli's home
Brown asked the uncle to "tell her to stay home." The uncle
responded that Cicarelli "could make [her], own mind up."
Brown asked the uncle if he was a union member and then
said: "Well, things get pretty nasty. You know how they
get. "
Cicarelli testified that Tierney asked to speak to employee
Carmen Sein, also a nonstriker, who Was in her home. Sein
came to the door. Tierney told Sein:
The workers were on strike and that she didn't want us,
her, to go to work. And Carmen said she was going to
work. And Louise [Tierney] said that [Sein's] husband
wouldn't like what Louise would have to say to him
.... And then Louise said, again, "You made it yes-
terday. Let's see if you can make it today?"
Brown testified that "We tried to convince them that they
shouldn't cross the picket line." Brown testified:
I indicated to her that she had neighbors who were
union members that they might not think it was proper
for her to cross the picket line, that we might very well
ask some of them to discuss it with her... .
Union Representative Brown acknowledged that about
May 8 employees Mary Jane Fazzino, Louise Tierney,
Grace Betzner, and Brown visited the home of nonstriking
employee Genny Cicarelli.23 Cicarelli testified:
Jerry Brown said to me, "Genny, you know why we are
here.... " "We are here because we have a strike
going and you are going against the workers." And I
said, "Yes, I know that." And he said, "Well we don't
want you to go to work." And Louise Tierney said,
"You made it yesterday. Just see if you can make it
today." I said, "Well, I am going to go to work." And
he [Brown] said, "Well, this is going against the work-
ers." And I told Jerry that he knew I wasn't with him
anymore about a month and a half before that. And I
told him I had bills to pay . . . [and] he said, "Well, the
workers have bills to pay and families." Then, he told
me how would I like my neighbors to know that I was
a scab. And I said, "Well, my neighbors are my rela-
tives." And he said, "Well, you have a car." . . . "How
would you like your tires slashed?" And I said, "Well,
you are threatening me?" And he said, "Well things get
pretty rough."
Cicarelli then called her uncle. Cicarelh testified that her
uncle told Brown, "I don't want you threatening my niece."
'22 Dean's participation in the Union's effort is discussed supra, section II,
L. According to Brown, Dean was also a picket captain during the strike and
a member of the organizing committee . Dean's related conduct during the
strike is discussed below.
23 Cicarelli recalled that employee Marsha Twarkins was also present with
Brown. Cicarelh identified the orange car in which Brown drove up as
belonging to Union Representative Monco.
Brown admitted asking Cicarelli's uncle if he was a union
member. Brown assertedly "tried to urge him to ask his
niece not to cross the picket line." Brown did not "remem-
ber" whether Tierney stated to Cicarelli and Sein, "You
crossed the picket line yesterday' but you are not going to
make .it today." Brown and Tierney denied the various
statements attributed to them.24
3. The visit to Armstrong's home
Darlene Armstrong [Bachman] was a nonstriking worker
at the facility. Armstrong testified that about May 27 she
and two nonstrikers left the facility in a car driven by Philip
Murphy; that she exited from the car at her home; and that
shortly thereafter Murphy returned to her home. Murphy
told Armstrong he had observed "a carload of people from
the picket line around the corner from [her] house.... "
Armstrong then called the police. Employees Tierney,
Adorno, and Dean approached the front steps. Armstrong
and Murphy went to the front porch. Armstrong testified:
[Murphy] told them to leave me alone because the po-
lice were on their way. Then Jerry Brown and Delores
Dean's younger brother . . . came up behind the girls.
... Delores [Dean] and Jerry [Brown] and [Louise]
Tierney said . . . they wanted to talk with me. I told
them I had nothing to discuss with them.... When
Phil [Murphy] told Jerry [Brown] that nothing better
happen to me, Jerry Brown ,told Phil ... to worry
about himself. Jerry Brown told me that if I continued
to work there, if I kept crossing the line, my legs might
24 1 credit the testimony of Cicarelli summarized above as susbstantiated
in part by Brown and Tierney. Insofar as Cicarelli's testimony differs from
the testimony of Brown and Tierney, I am persuaded that Cicarelli 's account
is more accurate and reliable.
734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be broken.... Delores Dean said I was lucky they
hadn't been waiting in the hall for me. . . . [Tierney
said,] If I wasn't willing to talk with them out on the
street, that they would get me when they got back to
the hospital. When they got back in they were going to
make life hell for anybody who continued to cross the
picket line.
Armstrong added that, after Brown told Phil Murphy "to
worry about what was going to happen to himself, Phil went
to his car and got a stick out of his car." About this time,
a relative of Armstrong assertedly came out on the porch
with a 13-foot boa constrictor wrapped over her shoulders.
Brown and his group left. Armstrong accompanied by a
detective, went to the facility, and pointed out, inter alia,
Brown, Tierney, Dean, and Adorno, whereupon they were
all arrested. '
Brown recalled visiting Armstrong about May 27. Brown
claimed that he "drove the employees" and stayed "in [his]
car." Brown recalled that Tierney, Adorno, Dean, and Mur-
phy were present. Brown testified:
I really don't recall the whole sequence of events. I
went over to the group and 'I think Phil . . . Murphy
came back and got out of the car and went over to Miss
Armstrong-I then went over to the group . . . l asked
the employees to come with me, that there was no
purpose in staying there any further....
Brown's asserted purpose for the visit was "to speak to Miss
Armstrong." Brown also testified:
These women were talking to Miss Armstrong while I
was across the street, and as I approached when I saw
Murphy get out of his car . . . they told me that Mur-
phy had a blackjack.-. . .
Brown acknowledged that his group was arrested at the
picket line.
Tierney testified that Brown, Adorno, Dean, and herself
visited the Armstrong residence to "ask her if she would
honor our picket line and not go back to work there." Tier-
ney claimed that Brown at first was "across the street" and
crossed over after Murphy "had a blackjack and he threat-
ened to hit us with it." Tierney claimed: "We just asked
[Armstrong] if she would honor our picket line."
Dean testified that about May 27 she was part of the
group that went to Armstrong's home; Armstrong went into
her home; Murphy "spotted us and turned around and went
back"; Armstrong and Murphy "told us if we didn't get out
of there she was going to have us arrested"; Murphy "got
the jack out of his car . . . and he was waiving it"; that a
relative of Armstrong came down "with a snake and told us
she was going to sick the snake on us"; "we left." Dean
denied telling Armstrong that she was "lucky . . . we could
have waited for her in the hall ... " or that "anyone said
that she would get her legs broken." 25
25 Dean testified : "I don't remember exactly what anybody said. All I
know is we asked her how come she was crossing the picket line "
Tierney could not "remember" Dean telling Armstrong that "You are lucky
we didn't catch you in the hallway "
4. The visit to Lee's home
According to nonstriking employee Mamie Lee, Union
Representative Brown visited her home about May 19. Lee
testified:
Jerry Brown rang my door bell. And he said he wanted
to talk to me concerning the union. I told him I didn't
want to talk because I had to come to work. And he
said ... , "We don't want you to go to work, you will
be taking bread out of the worker's mouth." I say, "If
I don't go I'll be taking bread out of my own mouth."
So then, he said, "we have been to the welfare. They are-
going to give us food stamps. And we'll give you $15
per day." I told him it wasn't enough money for me
because I had bills to pay, and I had to work. And then
he said, "Well, if you do go, we won't be responsible
for what happens to your car or your home 26
Brown testified that he spoke to Lee at her home; he
"urged her . . . to stay out . . . "; and he discussed "the
purposes of the strike" and the various economic benefits or
assistance. Brown denied saying "anything in the course of
the conversation to the effect that [he] or the Union
wouldn't be responsible for what happened to her." 27
5. The visit to Rich's home
According to Rose Rich-a nonstriking employee-
Union Representative Vincent Ciulla, employees Adorno
and John Donohue visited her home and asked her not to
go to work. Rich thereafter stayed away from work for
about 1 week. Rich then returned to work. Shortly thereaf-
ter, according to Rich, she discovered that her automobile
was splashed with paint while parked overnight in her drive-
way. She called the nursing home and was given a ride
through the picket line that day. Rich recalled that, as she
crossed the line, Tierney yelled: " . . . How's your car,
Rose?" Thereafter, according to Rich, she received a tele-
phone call from a person who she identified as Union Rep-
resentative Ciulla. He stated: "I see you had your car fixed.
How would you like to have something new done, some-
thing else done to it." Rich hung up the telephone.28
Tierney testified that Adorno, Ciulla, and herself went to
Rich's home in order to persuade her not to cross the picket
line. Ciulla said: "That she should stay out with the workers.
It was only right " According to Tierney, Rich stayed away
from work for 1 week and then returned to work. Tierney
testified that "whenever [Rich] was driven through the pick-
I credit the testimony of Armstrong as stated above. Her testimony is
substantiated in part by the testimony of Brown , Tierney and Dean. Insofar
as the testimony of the latter witnesses conflicts with the testimony of Arm-
strong, I credit Armstrong . Further, I do not regard Armstrong as incredible
because, as urged by counsel for General Counsel , she was convicted of
"aggravated assault" during April 1971
26 Thereafter, Lee discovered three flat tires on her 1962 Oldsmobile On
another occasion, there were two flat tires on her 1966 Chevrolet . And, on
another occasion , she found that three of her house windows had been
broken
27 I credit Lee's testimony as stated above. Her testimony in part is sub-
stantiated by Brown. Insofar as Brown's testimony conflicts with Lee's testi-
mony, I find that Lee's account is more accurate.
25 Rich, on cross-examination, agreed that her telephone caller "possibly"
"could have been someone other than Ciulla "
NEW FAIRVIEW HALL CONVALESCENT HOME
et line," Tierney "might have called her a scab." 29
F. The Conduct at the Picket Line
1. May 6
About 10 p.m. on May 6, Union Representatives Brown,
Seelig, Ward, and Morico, together with some 30 to 40
employees, gathered about the driveway to the nursing
home. Mr. Romer, husband of a nurse working at the facili-
ty, drove to the entrance. As a result of the large crowd,
Romer stopped his car and then started forward slowly.
Union representatives banged on his car with their flash-
lights. Strikers, including Dean and Linda Alger, were ob-
served hitting the Romer car with their fists. Romer drove
into the parking lot, picked up his wife and attempted to
leave. He was required to stop; his car was banged upon by
flashlights and fists; he finally exited. Brown, during the
above, was observed calling Romer an "S.O.B." About this
time, Mr. Sidlauscus, husband of an aide working at the
facility, encountered similar difficulties in entering the
driveway. He backed out, parked on the street, and-with
the assistance of a police officer-walked his wife to the car.
Later that evening, Jeremiah Donovan arrived at the
premises in a car driven by Robert Murphy. The car was
stopped by the crowd, vulgar hand gestures and statements
were made by the strikers, a policeman cleared a path, and
the car entered the lot. The picketing ended about 1:30 a.m.
In departing, strikers-including Union Representative
Ward-drove up and down Clifton Street blowing their car
horns.30
2. May 7
By 7 a.m. on May 7, there were 20 to 30 pickets present
at the premises. Brown and Ward were there. Seymour was
transporting nonstrikers to work. Seymour, upon observing
the crowd, determined not to use the driveway and drove his
car with nonstrikers Cicarelli and Sein across the dirt or
grass and into the parking lot.31 Employees Dean, Linda
Alger, and Mary Jane Fazino were observed yelling at Sein
and Cicarelli, "you will be sorry"; "they were going to get
them."
Daniel Donovan arrived later with several nurses. Ten to
20 persons-including Ciulla and Morico-stood in the
driveway around the Donovan car. Morico kicked the car.
Donovan had Morico arrested. Morico then called Dono-
van a "bastard." Ciulla warned: "it is going to get a lot
worse before it gets better. We are going to have 300 kids
up here from Yale." 32
29 Although Rich was at times a confused and nervous witness (see section
III, C, 0, supra), I credit her testimony as stated above. Tierney in part
corroborated Rich. I am persuaded that Rich truthfully related the above
incidents. Insofar as Tierney's testimony conflicts with the above, I credit
Rich's testimony as stated. Further, I find that, under the circumstances,
Rich sufficiently identified her telephone caller as Ciulla. Ciulla did not
testify.
30 The above summary is based upon the mutually corroborative testimo-
ny of Jeremiah Donovan and Robert Seymour, which testimony I credit.
Insofar'as Brown denied the various acts of conduct attributed to him, I
credit the testimony stated above.
3i Kirshneur was also in the car.
735
3. May 9
The events occurring on May 9, Mother's Day, have been
described above. Present at the facility that day were Union
Representatives Seelig, Brown, Ward, Ciiulla,' and ivlorico.
There were at times 100 to 125 people present. The picket
line'extended 20 to 25 feet into the home's driveway. Super-
visor Dennison, as she attempted to enter that day, observed
Union Representative Ward and others hitting her car with
their fists. Someone told her that she was not going to enter.
She did. Stephen Brown, brother of Jerry Brown, and Ward
were arrested at the picket line that day. As Cicarelli entered
the facility that day, Mary Jane Fazino made a vulgar re-
mark to her.33
4. May 10
While Dennison was leaving the home's driveway on May
10, Dean was standing next to Tierney's car; Tierney was
seated in the car on the driver's side. Dean picked up some
pebbles or small rocks and threw them at the Dennison's
car, hitting the windshield. And, that same evening some 20
to 30 persons gathered about the driveway entrance chant-
ing, inter alia, "Jeremiah is a Bullfrog" and "Donovan come
on out here. We will roll right over you." 34
5. May 11
On May 11, Union Representative Brown told Kirshneur,
who was then dumping refuse, " . . . he [Brown] could very
easily arrange to have his [Kirshneur's] legs broken." That
same day, Linda Alger (Stratford) and Mary Jane Fazzino
drove to the Cicarelli home. Fazzino got out of the car with
a rock in her hand. Cicarelli was then seated in her' car in
her driveway. Cicarelli asked Fazzino "what the hell are you
doing here?" Fazzino replied: " . . . you are going to get it."
Fazzino threw the rock through the rear window of
Cicarelli's car. A fight ensued. Alger got out of the car and
joined the fight. Fazzino and Alger then got back into their
car. Cicarelli picked up a bottle and broke the windshield
of the Alger car. All three were arrested. Later that day, as
Cicarelli was crossing the picket line, Fazzino and Dean
yelled: "Genny, that wasn't enough. You will get more."
That same afternoon, Linda Alger blocked a car attempt-
ing to enter the nursing home by laying down in the drive-
way. A policeman ordered her to leave. And, during the
evening, over 40 pickets walked about the driveway.35
32 The above summary is based upon the mutually corroborative testimo-
ny of Darnel Donovan, Jeremiah Donovan, Seymour, Cicarelh , as substanti-
ated in part by Brown. Insofar as Brown's version differs from the above, I
credit the above.
33 The above summary is based in part on the mutually corroborative
testimony of J Donovan and Dennison as substantiated in part by Brown
Insofar as Brown's version differs from the above, I credit Donovan and
Dennison.
34 The above summary is based in part on the credible testimony of
Dennison and J. Donovan I do not credit Dean's denial of the conduct
attributed to her.
35 During the early morning hours of May I I or 12, an unidentified person
threw a rock through the front porch window of the Cicarelli home.
The above summary is based upon the mutually corroborative testimony
of Seymour and Cicarelh, which testimony I credit. Alger in part substanti-
Continued
736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
6. May 12 and late June
There was, according to the credible testimony of Jeremi-
ah Donovan, a large number of pickets present about the
driveway entrance on May 12. And, according to the credi-
ble testimony of Seymour, Strikers Mary Jane Fazzino and
Twarkins shot water pistols into a car transporting nonstrik-
ers through the picket line.
During late June, nonstriker Armstrong attempted to en-
ter the nursing home in her sister's car. Mary Ann Pace and
Pat Izzo crossed the driveway and put their hands on the
passenger door of the Armstrong car. Izzo leaned her head
into the car window, saying: ". . . you know what we do
to scabs." Pace said the same thing. Armstrong made a
"spitting noise" at Izzo. Armstrong and Izzo were both
arrested.
Previously, Armstrong had been a patient at the mental
institution where Union Representative Morico was em-
ployed as an orderly. When Armstrong attempted to cross
the picket line at Respondent's facility, Morico, Izzo, and
Dean openly commented upon Armstrong's prior mental
condition. Morico told Armstrong that he would tell ev-
eryone about her hospitalization. Brown made like and re-
lated statements to Armstrong.36
7. August 8 and 10 or 11
On Sunday August 8, up to 95 to 100 persons, including
union officials, congregated and picketed in front of the
nursing home. The largest concentration occurred around
the 3 p.m. shift change. Clifton Street was lined with parked
cars. The picket line extended into the home's driveway
some 40 or 50 feet. Cars entering or leaving were surround-
ed and were rocked and banged upon. Obscenities were
uttered. Stones were thrown. Some nonstriking employees
attempted to leave the premises by the kitchen exit. Among
others, Union Representative Ward, Dean, Betzner, and
Deborah and Brenda Alger went on the Employer's
grounds; they yelled, cursed, and screamed in an attempt to
prevent the nonstrikers from leaving.37
aces Cicarelli's testimony. Insofar as Alger's and Dean 's testimony conflicts
with the testimony of Cicarelli and Seymour , I credit the latter . I do not credit
Linda Alger's testimony that Cicarelli "started yelling and throwing rocks at
us ... " after they visited her . Likewise, I do not credit Alger's denials of
the various conduct attributed to her as stated above.
36 The above summary with respect to Armstrong is based upon her
testimony as substantiated in part by Izzo and Pace. Insofar as Izzo and Pace
deny or differ in their versions of the above incidents , I credit Armstrong.
I note that Morico was not called as a witness . Instead , Brown testified that
Morico was employed by the Union as an organizer in January 1971 but was
"laid off" on April 1, 1971. Brown testified that Morico was called back by
the Union October 1971. I do not credit Brown 's uncorroborated testimony
that Morico was not employed by the Union between April and October
1971. Morico. admittedly, was present during that period at the picket lines;
he assisted Brown during the period ; he carried a picket sign during that
period ; and Morico permitted Brown to use his car during that period. Under
the circumstances , I find that Morico was a union organizer and employee
at all times material herein.
37 Cicarelli testified that Brenda Alger yelled: "Genny, don't come down.
I'll break your legs." As Cicarelli left, she and other nonstrikers were called
"scabs" and "dirty words." Delores Dean on occasion called her a vulgar
name . Cicarelli admittedly swore back at Brenda Alger and others at the
picket line . The evidence summarized above is based upon the mutually
corroborated testimony of Shepard, Seymour, Cicarelli, Janelle Cousins,
G. Seelig and Brown Follow Daniel Donovan
and Nickerson
On a number of occasions during the strike, as stated
above, union representatives followed management repre-
sentatives and nonstrikers from the facility to their homes.
In late May 1971, Daniel Donovan left the facility in a car
driven by Carl Nickerson. Seelig and Brown followed after
Donovan. Donovan testified:
We made all the maneuvers on the side streets there
onto Grand Avenue. As we proceeded up Grand Ave-
nue, Mr. Seelig on two or three occasions came up on
the righthand side of our car but was never able to
sustain that position because there were cars parked. So
we had a series of him pulling over and coming up on
the righthand side and having to keep going back and
forth.
We proceeded down Grand Avenue. We had to stop at
the lights just after the railroad crossing, at which time
Mr. Seelig was able to pull up and stop directly beside
us. I was sitting on the passenger side in the front seat.
He rolled down the window and said to me, "I want to
talk to you." My window was closed and I just waved
my head to indicate "no" and the light changed. At that
time Mr. Seelig started off at an accelerated rate and
started to turn his car towards the left. Both Carl and
Mr. Seelig started to accelerate at a rather high rate of
speed. Mr. Brown was directly behind our car. We had
a situation where Mr. Seelig was turning his car to the
left and Carl was turning to the right.... The speed
got to what I would consider high for the particular
area, 40 or 50 miles an hour, with Mr. Brown directly
behind us and Mr. Seelig on one side. We drove all the
way down Grand Avenue at a high rate of speed and
we turned right on Grand Avenue, a lot of tires screech-
ing and so forth and with Mr. Seelig right beside us as
the case may be.
Nickerson finally pulled his car to the side of the road in
front of state police officers. I credit Donovan's testimony
as stated above 3s
On August 10 or 11, Tierney-in the presence of Brown-
told Seymour that there would be another mass demonstra-
tion the following weekend and if he, Seymour, got in their
way he might get his arms or legs broken.
Brendalee Payne, and Jean Melillo , as substantiated in part by Brown and
Tierney. Brown and Tierney denied the various alleged acts of misconduct
attributed to them. Brown claimed that there was no banging on cars. I credit
the testimony summarized above as more accurate.
38 I note that Seelig is deceased and, accordingly, I have carefully scruti-
nized the above testimony . Nevertheless, as stated , I credit the above. In
addition , there was at least one incident when Union Representative Morico
swerved his car into the path of Respondent's vehicle according to the unde-
nied and credible testimony of Seymour and Distasio. And, I note that
Brown could not recall whether he told a reporter , with reference to an article
appearing in the Register on August 9, that the Union "will be as militant
as it has to [to] win the strike."
NEW FAIRVIEW HALL CONVALESCENT HOME 737
V THE EVIDENCE PERTAINING TO RESPONDENT'S REINSTATEMENT OF
THE STRIKING EMPLOYEES
A. The Offers to Return; the Contentions of the Parties
All picketing teased during the evening of September 7.
By letter dated September 8, the Union made an uncondi-
tional offer to return to work on behalf of 48 striking em-
ployees.39 By approximately September 14, Respondent of-
feredreinstatement to 23 of the 48 employees named in the
Union's letter.40 Of the remaining 25, 641 were notified by
Respondent that strike misconduct had disqualified them
for reinstatement . Three42 were notified that they had been
permanently replaced and misconduct may disqualify them
for reinstatement . And, the remaining 1643 were notified
39 The 48 employees named in the letter were:
1. Laroccue 25 Abbettollo
2. Kopylec 26. Tricaso
3. Tierney 27. Richards
4. Rubino 28. Reynolds
5. Sewell 29. Schappa
6. Smith 30. Pace
7. Page 31. Paluha
8. Terry 32. Novicki
9. Hennessey 33. Izzo
10. Gaura 34. Garguilo
11. Farrell 35 L. Fazzino
12. M.J Fazzino 36. Dean
13. Donahue 37. Douglas
14. Buzzm 38. Betzner
15. L. Alger 39_ D. Alger
16. B. Alger 40. Adorno
17. Arabo 41. Conroy
18 `Czyz 42. Couture
19 Stopka , 43. Clough
20. Pope 44. Vaiculis
21. O'Conner 45. Jones
22. Bernard 46 Zayas
23. Reynolds 47 Casista
24. Barbaro 48. Enright
Counsel for the General Counsel states at p. 11 I of his brief that the Union
inadvertently omitted from its letter of September 8 the names of strikers
lannuci and Fertig who were "otherwise timely reinstated"; Chaplin who-
according to Shepard-declined several offers, and Twarkins who assertedly
moved away from the area.
40 The Employer's offers were made by individual letters and orally. The
23 employees were:
I. Rubino 12 Arabo
2. Farrell 13 Kopylec
3. Tncaso 14. Hennessey
4. Pope 15. Bernard
5. Perry 16. Shappa
6. Paluha 17. Page
7. Stopka 18. Clough
8. Douglas 19. Donahue
9. Couture 20. Czyz
10. Zayas 21. J. Reynolds
11. Barbaro 22. Enright
23. Cassista
As counsel for General Counsel notes, employees Fertig and lannuci, al-
though not named in the Union's September 8 letter, were also offered
reinstatement.
41
1. L. Alger 4. M.J Fazzmo
2. Betzner 5. Izzo
42 3.
Dean 6. Tierney
1. Pace
2. B. Alger
3. Adorn
that they had been permanently replaced . Thereafter, at
various times subsequent to September 16, Respondent of-
fered 18 of these 25 employees reinstatement 44
The principles applicable to the reinstatement of strikers
upon their unconditional applications to return to work are
clear. "Unfair labor practice strikers are entitled to rein-
statement with'backpay, even if replacements for them have
been made." N.L.R.B. v. Sunrise Lumber & Trim Corp., 241
F.2d 620, 625 (C.A. 2, 1957), cert. denied 355 U.S. 818
(1958)., And, as the Court stated in Retail Store Union v.
N.L.R.B. 80 LRRM 3244 (C.A.D.C., 1972);
The law is clear that striking employees may request
reinstatement collectively through their union ... ;
and that once a request is made, the obligation is upon
the employer to offer reinstatement to those employees
for whom there are available positions.
s x s
Prior to the decision of the Board in Laidlaw on June
13, 1968, it was a well settled rule, enunciated and
applied by the Board, that when an employer perma-
nently replaced an economic striker, he was under no
obligation thereafter to treat that striker other than as
a new applicant for employment. . . . Although he
was not permitted to discriminate against a former
striker on the basis of his prior protected activity .. .
he was not obliged actively to seek out and to offer
former strikers reinstatement in preference to other ap-
plicants, or to accord rehired strikers their full former
accrued rights and pay. Relying largely on the Supreme
Court's opinion in N.L.R.B. v. Fleetwood Trailer Co.,
389 U.S. 375, 66 LRRM 2737 (1967), the Board in
Laidlaw overturned this rule, and held that former
strikers. although not entitled to reinstatement in pref-
erence to replacements permanently hired during the
strike, are entitled to offers of reinstatement to vacan-
cies resulting from the subsequent departure of perma-
nent replacements; and they remain so entitled until
they have obtained "other regular and substantially
equivalent employment." [Citations omitted.]
And, as the Court noted in International Union, United Auto-
mobile Workers [Udylite Corp.] v. N.L.R .B. 455 F.2d 1357,
79 LRRM 2031, 2039 (C.A.D.C., 1971):
Even assuming that the strike could be characterized as
economic, the burden of establishing the defense that
43 1. Buzzin 9. Gaura
2. Novicki 10 Jones
3. Vaicuhs 11 O'Conner
4 Abbattello 12. Reynolds
5 D Alger 13. Richards
6 Conroy 14. Sewell
7. L. Fazzino 15. Smith
8. Gargiullo 16. Laroqcue
44 The 18 would include the 16 employees named supra, fn. 41, and Pace
and B. Alger named Supra, fn. 40. Six employees,-L Alger, Betzner, Dean,
M.J. Fazzino, Izzo, and Adorno-were denied reinstatement because of the
alleged misconduct . Tierney was, as noted, previously discharged. Whether
these employees were properly denied reinstatement is discussed infra, see.
VI.
738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unreinstated strikers are no longer necessary to the
company rests with the employer.
And see H. & F. Binch Co. v. N.L.R.B., 456 F.2d 357 (C.A.
2, 1972), and cases cited.
Counsel for General Counsel argues that Respondent
violated Section 8(a)(1) and (3) of the Act by failing and
refusing to reinstate the strikers because they were allegedly
unfair labor practice strikers. In any event, assuming the
employees were engaged in an economic strike, counsel for
General Counsel argues (brief, p. 120) that Respondent vio-
lated Section 8(a)(1) and (3) by "failing and/or refusing to
immediately reinstate most, if not all, of the 25 upon their
applications of September 8 . . ." and by thereafter delay-
ing reinstatment and/or otherwise failing to do so when
vacancies arose. . . °°45
Counsel for Respondent argues (brief pp. 185-188) that
the employees were engaged in an economic strike and the
Employer's "refusal to reinstate strikers after the uncondi-
tional request to return to work was based upon legitimate
and substantial business reasons." Respondent asserts, inter
alia:
At the outset of the strike, the Employer commenced
hiring new employees to provide adequate coverage for
its patients. In so doing, the Employer did not, in most
cases, hire an individual to replace a particular striker.
To the contrary, the Employer complied with State
regulations concerning the staffing of nursing homes
and its actions were directed toward hiring a sufficient
number of new employees for each shift, whose total
hours worked per week equalled or corresponded to the
total hours previously worked by the striking employ-
ees.
s s * s
As the strike progressed month after month, the facility
underwent major changes in its patient bed capacity
and licensing . The facility received a new license and
expanded its operations from the 120 beds it had prior
to the strike to 195 beds. . . . Concomitant with this
substantial increase in the number of patients, the Em-
ployer supplemented its personnel, as it was required to
do under State law, and hired additional employees for
each shift.
Respondent further argues:
Under State law, a 195 bed facility was required to
employ 20 nursing personnel , either aides , LPNs or
RNs, on the first shift . . . ; 13 nursing personnel on the
second shift . . . ; and 10 nursing personnel on the third
es The complaint, as amended, named 28 striking employees as discrimi-
natees. Counsel for General Counsel acknowledges in his brief (p.1 12) that
employees Donahue and Slopka were offered reinstatement prior to or shortly
after September 14, and that the Employer 's letter of September 14 to Ber-
nard went "unclaimed ." General Counsel moves to withdraw the names of
Donahue and Stopka from the complaint and I grant his motion. As for
Bernard, General Counsel asserts that Respondent 's subsequent refusal dur-
ing October to hire Bernard on the third shift as requested , was unlawful. This
contention is discussed infra, V, D.
shift.... On the date Shepard received the Union's
letter . . . requesting reinstatement . . . the Employer
more than amply met and complied with the State
regulations.46
Respondent explains:
In making its reinstatement offers the Employer relied
on several factors, the most important of which was
business need. The other factors were the type and
quality of work performed, shift, seniority, number of
days and hours worked per week, and whether the
employee had obtained substantially equivalent work
elsewhere... .
The relevant evidence is discussed below.
B. The Expansion of the Nursing Home;
the Availability of Unit Jobs
Respondent acknowledges that its "facility received a
new license and expanded its operations from 120 beds it
had prior to the strike to 195 beds..... At the representa-
tion proceedings conducted on April 13, Donovan testified
in part as follows:
Q. You testified that, as to the expansion of New
Fairview Hall, you indicated how many new employees
were needed.
A. Approximately 45.
Q. What did you base that determination on?
A. On the ratio of common employees plus the addi-
tional area.
Q.... I want to know what the elements were that
went into that decision. Let us take it department by
department. Let's start with nursing staff.
A. We have an additional 75 beds and therefore we
will have to staff as if it were 90 because the State of
Connecticut only recognizes a nursing unit of 30 beds.
As a result any fraction thereof you must use the near-
est multiple.
Q. What are the implications of that?
A. We will staff as if we have 90 beds.
Q. What are the implications of that ... ?
A. It means we will have at least nine employees on
the first shift.
Q. As far as nursing aides?
A. Yes. It would be 1 to 15, 1 to 20 on the following
shifts, the ratio.
Q. I don't want the ratio. I want the numbers.
A. . . . Minimum staffing in the nursing situation
would be 20 people.
Q. . . . you said nine on the first shift.... There
is a minimum requirement on the second shift of what?
A. 1 to 15.
46 Respondent claims that on the first shift 22 aides were employed, which
included 3 persons employed prior to May 6 who did not strike. The remain-
ing 19 employees were assertedly permanent replacements. Further, on the
second shift, 12 aides (including Dusablon-an employee hired prior to May
6 who worked during the strike) were employed . On the third shift , nine aides
were employed on a permanent basis. See Resp. Exh. 81-86.
NEW FAIRVIEW HALL CONVALESCENT HOME 739
Q. That is how many employees for those two shifts?
A. 15.
Q. And the last shift?
A. 1 to 20.
Q. That is basically the nursing staff of full-time
employees . That includes nurse's aides?
A. Yes.
Q., That includes RNs and nurses' aides?
A. Yes.
Q. What is the requirement or breakdown between
those different categories?
A. That is where it goes 1 to 30, 1 to 45. On the first
shift we have to have a licensed nurse for every 30
patients. You have to come up with three nurses on that
situation.
Q. One nurse for 30 patients?
A. Yes.
Q. In the next shift.
A. It would have to be one for every 45 patients. So
you could actually end up with two nurses there.
Q. And the other one?
A. On the last shift it's 1 to 60 so you have to come
up with two.
* * * *
Q. Is it correct to say that you would have to have
approximately 12 nurses' aides.
A. Yes. In a 24-hour period.
Q. How about the kitchen? Do you need additional
personnel, irr the-kitchen?
A.. Yes:
Q. How many would you need?
A. Two or three at the least.
Q. On what would you base that calculation con-
cerning food service people?
A. Additional food and additional preparation.
Q. What about laundry?'
A. Additional people'there also.
Q. How many?
A. One or two.
Q. How many do you calculate you would need in
maintenance?
A. Two.
Q. Housekeeping?
A. Two.
Q. If my mathematics are correct that would mean
'approximately a total of 21 employees not counting
supervisory personnel.
A. This is seven days a week we have to cover these
shifts.
Q. Am I correct in saying 21 employees?
A. I would say no. That would be the number of
employees you would need to cover one day and we
cover seven days a week.
Q. That makes up the full complement of 40 to 45?
A. When I said 40 to 45 I was talking about addi-
tional people. This is what I mean. You cannot say this
may be. This is what I mean. That is what you need on
a particular day for people who do not work seven days
a week. ,
* * *
Q. . . . How do you arrive at the figure of 40 to 45
for the entire week period?
A. It's figured by the ratio.
Q. I'm asking you to tell me what is the basis for the
determination.
A. Generally the part time people and the full time
people. It's a fairly constant ratio.
Q. So you have 21 full time and 21 part time?
A. Yes.
Moreover, Shepard -testified:
Q. When were you licensed for the full 75 beds?
A. For the full 75 beds, the last part of the license
came I think in August [1971].
It should have been the end of August.
Shepard also testified: " . . . the State [minimum] re-
quirements are for RN's and LPN's and nurses' aides... .
There are no State minimum requirements [for] kitchen,
maintenance, laundry, housekeeping at all ...." Shepard
admitted that "we do try to stay over the minimum"; "we
try to stay above the State minimum"; and "during most
weeks we had above the minimums" Further, Shepard tes-
tified: " ... By May we maybe had 125 patients or so
," and, as of about September 8, "somewhere in the
neighborhood of 185.... " 47 Shepard acknowledged that
the facility needed about 45 employees within the unit to
service the additional beds.
On the record before me, I find that on March 1 there
were approximately 58 unit employees; on April 13 (when
the representation hearings were held) there were about 63
unit employees; and on May 6 there were about 65 unit
employees. I find that Respondent reasonably anticipated
at the representation hearings that it would need approxi-
mately 40 to 45 new unit employees to meet its increase of
75 beds and, consequently, the total number of unit employ-
ees needed for the expanded facility at all times material
ranged from about 103 to 108. Based in part upon,
Respondent's claimed replacements (see Resp. Exh. 81-86),
I find that as of September 14 the total unit complement was
47 As discussed in section III, B, supra, on March 1 through 5 there were
some 58 employees in the unit . On April 1, there were approximately 61
employees in the unit . And, by May 6, there were approximately 65 employ-
ees in the unit . Shepard acknowledged that there was "a greater need on
September 8 than on May 6" for unit personnel
740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
approximately 67, including some 57 alleged permanent re-
placements and 10 prestrike employees on the payroll. Fur-
ther, I find that there were 48 strikers named in the Union's
September 8 letter plus Iannucci and Fertig, or 50; there
were 25 offers of reinstatement (including 5 maintenance
men who admittedly had not been permanently replaced);
there were some 6 unaccepted offers; and 19 strikers accept-
ed offers. Consequently, excluding the 6 strikers allegedly
guilty of misconduct and Tierney, there were 18 strikers
available for reinstatement.
I find that Respondent needed some 103 to 108 unit
employees during the pertinent period; Respondent em-
ployed as of September 14 some 67 unit employees; there
were approximately 36 to 41 positions available; there were
25 offers; there were about 11 to 16 additional vacancies;
there were some 6 vacancies created by unaccepted offers;
and, further, there were approximately 17 to 22 existing
vacancies as of September 14.41
Shepard claimed, inter alia, that Respondent in fact did
not hire 40 to 45 employees to cover the home's additional
beds. He claimed that the 40 to 45 figure "was based on the
best estimate one could make at the particular time." He
claimed: "We did not open up the laundry and did not need
the additional employees there"; "We ended up hiring more
fulltime employees than we did part-time employees"; and
"we decided we were spending too much money and should
cut back a little...." I do not credit these assertions. As
for the alleged change in laundry operations, the credible
evidence of record (discussed below) shows that Respon-
dent used a larger complement of laundry personnel after
the strike than before. As for the general assertion that
management decided to "cut back a little" because we
"were spending too much money," Shepard claimed that
"It's very hard to give you an exact date [when this decision
was assertedly made]." He claimed that "It was near the end
of the summer , which would be around the time the strike
ended." He added: "It was felt our payroll was a little bit
high and we should find ways to cut back a little." However,
as the record shows, Respondent continued to actively hire
new employees to meet its additional staffing requirements
as well as reinstating a number of strikers. As noted, Shep-
ard acknowledged that there was a greater need for unit
personnel when the strike ended. And, as Respondent ac-
knowledged prior to the strike, the ratio of "part-time peo-
ple and full-time people [is] a fairly constant ratio" at the
home. The record shows that the total complement of full-
time and part-time unit personnel had remained fairly con-
stant prior to the strike and prior to the substantial expan-
sion which took place at the home. In sum, I do not credit
management's asserted reasons for limiting and delaying its
offers of reinstatement.
(The evidence pertaining to the various offers of rein-
statement is discussed infra.)
48 Computed differently, there were 67 unit employees on September 14;
there were 25 offers by September 14; there was an alleged total need of 92
employees ; 6 offers were not accepted ; and the total unit complement was
86. Subtracting 86 from the needed unit -complement of 103 to 108, there were
some 17 to 22 existing vacancies.
C. The Evidence Pertaining to Respondent's
Offers to 18 of the Remaining 25
Employees
I find that Respondent offered reinstatement to the fol-
lowing 18 employees on or about the dates indicated:
Abbattello, Hkpr.-12/13
Alger, Brenda, Aide-11/29
Alger, Debra, Aide-11/29
Buzzin, Aide-11/12
Conroy, Aide-11/17
Garguilo, Dishwhr.-Early Oct. 71
Gaura, Laundry-12/6
Jones, Aide-12/28
Novicki, Aide-11/12
O'Connor, Aide-9/29
Pace, Aide-11 / 15
Richards, Hkpr.-12/8
Smith, Hkpr.-12/7
Vaicuilis, Aide-I 1/ 12
Fazzino, Lois, Aide-9/23
LaRocque, Tray Girl-Early Oct. 71
Sewell, Utly. Kit.-9/30
Reynolds, Aide-9/21
The evidence pertaining to these offers is summarized
below.
1. Vacancies in laundry and Respondent 's failure
to offer Gaura and others immediate resinstatement
Respondent acknowledged that an increase in beds
would cause a need for more laundry workers. Respondent,
however, claimed that it declined to offer striker Gaura
reinstatement because of its lack of need caused by a change
in the laundry operations. However, Respondent used a
larger complement of laundry employees after the strike
commenced than existed prior to the strike. Employee Betty
Young was transferred to the laundry from a nurse's aide
position about August and (according to payroll records)
two workers-Adams and Seymour (admittedly not perma-
nent replacements)-worked in the laundry on the weeks
ending September 15 and October 16, respectively 49 Ac-
cordingly, I find that there was a need for Gaura or another
eligible striker in the laundry prior to December 6, when the
offer Gaura was made.
49 Further, Respondent offered striker Arabo a position in the laundry
about September 14 and she did not accept it. Respondent also temporarily
assigned Steve Boecker from the kitchen to the laundry from about Septem-
ber 17 through October 22. Diane Boecker was temporarily assigned to
laundry during the week of October 9. Respondent transferred Mulvaney
from housekeeping to laundry during the week of October 9.
In addition, Respondent recalled laundry employee Iannucci to a job in
the kitchen. Kitchen jobs were unskilled. Respondent had a number of
vacancies in the kitchen prior to December 6 which could have been offered
to Gaura. Thus, Donohue refused a dishwasher's job prior to September 14.
Dishwasher Megliaro was hired about September 13. Suraci started work as
a pot washer on September 18. Suraci's application indicates that he was
hired September 10.
NEW FAIRVIEW HALL CONVALESCENT HOME 741
2. Vacancies in kitchen
a. Megliaro
Respondent hired Megliaro (a nonstriker), according to
her application„ on September 13. I find that Megliaro was
hired for Garguilo's dishwashing job (see V, E, infra). Re-
spondent did not first offer this job to Garguilo or any other
striker.50
b. Suraci
I find that Suraci (a nonstriker) was hired on September
10 and first worked on September 18 as a pot washer. This
job was not previously offered to any of the strikers. This
position was unskilled and could have been offered to other
strikers, including Gaura.
c. Donohue
About September 14, striker Donohue refused an offer of
reinstatement to his former dishwashing position. I find that
Respondent did not thereafter offer this job to one of the
strikers (including kitchen employees) but delayed until
about early October when it offered the job to Gargiulo.
(See V, E, infra.)
d. Fiore
Respondent claims that Fiore (a nonstriker) was em-
ployed as of September 8 as a pot washer. Respondent
claims that Fiore'is a permanent replacement. However, I
find that Fiore was a temporary summer employee accord-
ing to the notations on his application. Respondent has not
shown any change in that status at any time pertinent here.
Faizino was reinstated September 23 and Reynolds Sep-
tember 21.
b. Israel and Contenza
I find that first shift aides Israel and Contenza (nonstrik-
ers) were summer or temporary employees about September
14. Contenza's application indicates, inter alia, that she
would work until February when she planned to enroll in
LPN school (Licensed Practical Nurse). And, Israel's appli-
cation states that she was hired for summer employment. It
was never established that Israel's status changed at any
time material herein.
c. Mullen
I find that aide Mullen (a nonstriker) was hired by the
home on a temporary basis. Thus, according to Shepard,
Mullen "stayed only a brief period of time. . . ." Mullen
stayed at the residence of Supervisor Lane and admittedly
only worked "a short period of time.. . ." She was "recom-
mended" to Shepard by Daniel Donovan. I find that Mullen
terminated on October 18 to return home, and her vacancy
was not filled by a striker.
d. Couture, Bryant, and Matchutas
Employee Couture was reinstated on September 15 and
quit the same day. I find that Respondent thereafter made
no timely offers to remaining strikers to fill her job. Employ-
ee Bryant was terminated on September 16. I find that
Respondent thereafter made no timely offers of reinstate-
ment to strikers to fill that job. And, Matchutas terminated
her employment on September 17. I find that Respondent
made no timely effort to offer reinstatement to fill this va-
cancy.
3. Vacancies for nurse's aides
a. Strikers Reynolds and Lois Fazzino
Shepard testified:
... we sent out initially six letters of reinstatement to
people on the second shift. Those letters were dated on
September 14. Within a week of the mailing of those
letters, it came to our attention that . . . we had sent
out the wrong letter to Mrs. Lois Fazzino and Mrs.
Lillian Reynolds and through phone calls and addi-
tional letters to them, they were hired back the follow-
ing week... .
Later, Shepard testified that striker Lois Fazzino "called us
and we were about to call her . . . and [we] asked if she
could come back. . . ." Respondent's records show that
so Respondent admitted that the Union 's letter of September 8 "could
very well have been delivered" to the home by September 10. I note that
Shepard previously had received individual applications from employees and
was otherwise aware that the strike had ended by September 8. Although
Shepard assertedly did not read the Union 's September 8 letter until Septem-
ber 13, I find that it was received at the home by September 10.
e. Blaine and other alleged trainees for Golden Hill
Blaine was hired and started work on September 16 as a
third shift aide. Shepard testified that Blaine "was hired as
a nurse 's aide on the third shift. She was hired as a trainee
for the Golden Hill Home and would train at New Fairview
.." Blaine admittedly never went to the Golden Hill
Home and she performed work that normally would have
been performed by striking aides. Shepard testified that "the
work [persons like Blaine] were doing was" "basically the
same work" "the strikers would have done if they came
back."5t
Respondent needed and utilized Blame and the other new
aides at New Fairview; their later transfer to Golden Hill
51 A number of other persons were hired during the pertinent period who,
according to Shepard, we "were hoping . would eventaully transfer down
to Millford " Shepard could not recall the people hired to tram for Golden
Hill, the other nursing home Shepard testified.
at this particular time we needed additional people on the first shift-
nurses' aides. We had reached the point where we had to hire an addi-
tional aide or two. We were still considering the Millford home and we
were hoping we could hire somebody who would eventually transfer
down to Millford At that point that was not the most essential thing in
our minds then.
742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was speculative; none were ever transferred to Golden Hill;
they performed the work of strikers who were not reinstat-
ed; and various of their applications made no reference to
Golden Hill (i.e., Demaio, Phelps, Soares, and Blaine). In
sum, I find that Blaine and the various other new aides who
were allegedly hired for Golden Hill were, at best, tempo-
rary employees performing the jobs of strikers who had not
been reinstated.
f. Conroy
Shepard testified that "We didn't call [striker Marie Con-
roy on September 14] because we called her out of seniority.
We considered her to be a very poor employee.... " 52
Conroy had started working at the home in May 1969.
Conroy credibly testified that she had never been criticized
or reprimanded by her supervisor, Dennison. I do not credit
Shepard's asserted reason for delaying an offer of reinstate-
ment to employee Conroy.
g. Heinig
I find that Heinig, a male aide, was hired the week of
October 3 at the same rate paid to female aides. Shepard
acknowledged that Heinig performed substantially the
same work as the female aides. Strikers were not offered this
vacancy.
D. Cynthia Bernard
Cynthia Bernard was offered reinstatement on September
14. Her letter went unclaimed and was returned to Respon-
dent. Director of Nurses Bosak testified that thereafter dur-
ing October she "called and offered [Bernard] reinstatement
and [Bernard] said she had another job." Elsewhere, Bosak
testified:
There was several conversations that I had with her
over the phone because she called me back at least two
times after I called her about other questions.
Bosak acknowledged that Bernard "asked if she could go on
the 11 to 7 shift." Bosak said to Bernard: "We had another
girl who had not been called yet. Girls that were on the 11
to 7 shift, I had to offer them the positions available on that
shift first." Bosak acknowledged that she probably did not
call anybody on the day shift "to take the place of Cynthia
Bernard." I find that although Respondent had vacancies
on its third shift, it refused to hire Bernard on the third shift
or consider her request for future vacancies.53 And, Re-
52 Shepard asserted that "Conroy didn 't perform her duties as well as we
thought she should have"; "She tried very hard to do just as little work as
she possibly could ...."; and "she came to work looking like a very untidy
person."
531 find that Respondent , both prior to and subsequent to the strike,
transferred employees between its departments . Many of the unit positions
require little or no skill. Thus, employees were transferred between kitchen
and laundry; laundry and aide; housekeeping and laundry. Recalled laun-
dryman Iannucci was assigned to the kitchen. Further, reinstatement could
be offered to strikers for vacancies on different shifts then worked before the
strike . Nevertheless, Shepard testified:
Q. I'm talking about the shifts. Was any employee offered a job on
spondent failed to offer the job declined by Bernard to
another aide.
E. Myrtle Gargiuio
Counsel for General Counsel argues in his brief (p. 115)
that "notwithstanding the fact that Respondent otherwise
violated the Act by failing to grant immediate reinstatement
to Gargiulo and/or by delaying same, Respondent further
violated Section 8(a)(1) and (3) by its failure to accord her
proper reinstatement and its subsequent discriminatory dis-
charge of her." Management's treatment of Gargiulo prior
to the strike is discusses supra, section II, H. She started
working for Respondent as kitchen help during 1968. Prior
to the strike she worked about 4 hours a day 5 days a week.
At the time, she serviced only one meal and the home had
substantially fewer patients than after the strike. As stated
in section II, H, supra, I discredit management's asserted
reasons for withholding Gargiulo's pay raise before the
strike and find that management told her that she "wouldn't
get a pay raise as long as this union stuff was going on" and
withheld her raise for this reason.
Gargiulo participated in the strike and, according to the
testimony of Brown (which testimony I credit), the strikers
used Gargiulo's home as "kind of informal headquarters
. . ." After the strike ended, management-although it
assertedly regarded Gargiulo as slow and an otherwise un-
satisfactory employee-offered Gargiulo about early Octo-
ber reinstatement to a dishwashing job requiring the
employee to work twice as many hours each day and per-
form a substantially increased workload. Thus, Gargiulo's
new job required her to service two meals and substantially
more patients. Gargiulo credibly testified:
... when I returned to work, Mr. Distasio told me that
I was to get through at 8 o'clock at night. I was to have
all the dishes done. The first night I didn't get through
till 9:30.
The next morning Distasio came to me and he had
written on a piece of paper that I did not get through
in time, that I had made some other girls stay over. He
asked me to sign it. I refused.
Further, according to Gargiulo, she did not get through at
8 p.m. on a later occasion, and the "next morning he [Dista-
sio] came and . . . told me that I had left dirty dishes." 54
Gargiulo was discharged about 2 weeks later on October 21.
Carmen Megliaro was hired for the kitchen during Sep-
tember.55 Distasio testified:
another shift?
A. No.
Shepard acknowledged that after the strike ended Respondent "ran ads" in
the newspaper for "licensed help and unlicensed help." In addition, Respon-
dent in the past had operated with a reasonably constant part-time , full-time
complement . Management bypassed both part-time and full-time strikers
when it hired new employees in lieu of offering strikers reinstatement.
54 Gargiulo also credibly testified that she had seen an advertisement by
Respondent for tray girls . She asked Distasio , without success, for a job of
setting up trays. Distasio , she credibly testified, "had promised me [that] job
before . . . the signing of the card and the things for the union."
55 Respondent 's records indicate that Megliaro first started working on
September 14 and assertedly. was a permanent replacement . And, Distasio
acknowledged that "as of September [1971] ... there was a greater need for
NEW FAIRVIEW HALL CONVALESCENT HOME 743
Q. Mr. Distasio,,isn't it a fact that she [Megliaro] in
substance took Myrtle Gargiulo's job, the one Myrtle
had prior to the strike, the same hours as a dishwasher,
... substantially the same?
THE WITNESS : Well, she filled the . position.
Q. In other words, she was working after she was
hired substantially the same hours that Mrs. Gargiulo
worked before?
A. Yes.
Under the circumstances , I am persuaded that Respon-
dent-in addition to its failure to grant Gargiulo immediate
and timely reinstatement-did not reinstate her to her f or-
mer or a substantially equivalent position . I find that in-
stead Respondent, in offering Gargiulo a more onerous job,
was motivated in substantial part by its purpose to get rid
of another union adherent.56
F. Conclusion
In sum, on this record, I find and conclude that as of
September 14 Respondent failed and refused to immedi-
ately reinstate the 18 and thereafter delayed reinstatement
to the 19 (including Bernard) when vacancies arose; and
that Respondent, in refusing and delaying reinstatement,
was motivated in substantial part by a purpose to dissipate
the Union's majority status which was made clear to Re-
spondent before and during the strike. As for Gargiulo, I
find and conclude that Respondent also did not reinstate
her to her former or a substantially equivalent job, assigned
her a more onerous job and discharged her because she had
engaged in protected activities.
VI. DISCUSSION
A. Interference, Restraint, and Coercion
Section 8(a)(1) of the Act makes it an unfair labor prac-
tice for an employer "to interfere with, restrain or coerce
employees in the exercise of" the rights guaranteed them in
Section 7 of the Act. The latter section provides that em-
ployees "shall have the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to en-
gage in other concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection, and shall
have the right to refrain from any or all such activities
...." The credited testimony summarized in section II,
supra, and discussed below, establishes that the Employer,
in response to the Union's organizational drive, embarked
upon an extensive antiunion effort calculated to deprive the
kitchen employees" than there was previously.
561 credit the testimony of Gargiulo stated above. I do not credit
Distasio's claims that Gargiulo left his kitchen in "shambles" and "screwed
up everything." Instead, I find this was mere pretext Further, I note that
Respondent could have given Gargiulo the tray girl job as previously prom-
ised. Such a job required no special skill or proficiency and, therefore, could
be performed by a dishwasher.
employees of "the complete and unhampered freedom of
choice" guaranteed them in Section 7 of the Act. N.L.R.B.
v. Link-Belt Co., 311 U.S. 584,E 588 (1941).
1. Director of Nurses Boecker
As found in section II, C, supra, during late February
Respondent's Director of Nurses Boecker entered a
patient's room where employee Pace was working and inter-
rogated Pace whether she "knew anything about the girls
wanting a union...." Pace, although a union supporter,
claimed that she was unaware of the organizational drive.
Boecker then informed Pace how "dissappointed" Boecker
was and, at the same time, admonished Pace that if the
Union came in, " . . . you'd probably be eliminating your
coffee break...." Also during late February, Boecker
confronted employee Dean at the nurse's station and ap-
posed Dean: "I know you heard about the cards going
around and people wanting to join a Union." Although
Dean claimed that she. was unaware of the campaign,
Boecker asked the employee: ". . . if they come up to you
and ask you to sign a card will you please let me know."
Dean agreed that she would so inform Boecker.
Subsequently, during late February, as found in section
II, E, supra, Boecker told employee Nugent in the presence
of coworker Dean (while the two employees were working
on a patient), "I know you [Nugent] know about the Union
trying to get in and the girls wanting to join." Nugent
claimed that she too was unaware of the campaign. Boecker
then asked Nugent: ". . . if they come up to you and ask
you to sign a card, would you? " Nugent assured Boecker:
"you know me better than that." Nugent in fact signed a
union card on February 24. Thereafter during March, as
found in section II, K, supra, Boecker similarly confronted
employee Tierney at work and apprised Tierney that Boeck-
er "knew that [the employees] were trying to get a union in
the Home" and that the employees would be "sorry"; "you
won't have a half-hour lunch period any more if the union
got in and you won't have a 15-minute coffee break."
As found supra, section II, N, Boecker interviewed em-
ployee Linda Alger during early April in Boecker's office.
Boecker questioned Alger whether Alger "had heard any-
thing about the Union" and what Al'ger's "opinion of it
was." Alger told Boecker that she "didn't know really
enough" about it "to have any sort of opinion." Boecker
asked Alger, "if you find out anything that you think might
be helpful to me [Boecker], I wish you would tell me." And,
subsequently during late April, as found supra, section II, K,
Boecker faulted employee Novicki because the employee
had protested that she was "hired as a nurse's aide and not
to mop floors." During this conversation, Boecker asked
Novicki: "Do you think the Union is worth going through
all this trouble." Novicki, in response, related her various
grievances and complaints to Boecker. Boecker told No-
vicki that she, Boecker, "would get after her nurses and see
what could be done about the problems." Boecker thereaf-
ter was observed walking over to speak to Shepard.57
I find and conclude that Supervisor Boecker, by the fore-
57 As noted supra, fn 10, earlier during the summer of 1970, Boecker told
a group of assembled employees that "they didn't want to hear any more talk
Continued
744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
going conduct, violated Section 8(a)(1) of the Act as alleged.
Boecker's unwarranted attempts to pry into employee union
sympathies through such interrogations and solicitations,
coupled with management's demonstrated opposition to
unionization and threats of reprisals, constitute the kind of
coercion and restraint proscribed by Section 8(a)(1). See
generally N.L.R.B. v. Gladding Keystone Corp., 435 F.2d
129, 132-133 (C.A. 2, 1970) (and cases cited).58 Respon-
dent argues in its post-hearing brief (pp. 149-153) that the
"allegations in the second amended complaint pertaining to
purported misconduct in late February 1971 should be dis-
missed because all such allegations are barred by the six
month statute of limitations set forth in Section 10(b) of the
Act." 59 The initial charge was filed herein on May 7, 1971.
That charge generally alleges , inter alia, that the Employer
"has engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a), subsections (1) and (3)
and (4) " of the Act. The charge specifically alleges
Tierney's discharge as unlawful. Thereafter, on August 30,
1971, the second charge was filed generally alleging viola-
tions of Sections 8(a)(1) and (5) of the Act. That charge
refers to, inter alia, Respondent's conduct "designed to de-
stroy or dissipate the [Union's] majority status.... " A
third charge was filed on October 7, 1971, generally alleging
violations of Sections 8(a)(1) and (3) of the Act, referring
specifically to the events attending the reinstatement of
strikers. Under the circumstances, I reject Respondent's
contention. The initial charge sufficiently charges Respon-
dent with violations of Section 8(a)(1). See , e.g., North Amer-
ican Rockwell Corporation v. N.L.R.B., 389 F.2d 866,
870-871 (C.A. 10, 1968); Kansas Milling Company v. N.L.R.
B., 185 F.2d 413, 415-416 (C.A. 10, 1950). Further, all three
charges are related since they concern conduct arising from
the same course of events and Respondent was fully ap-
prised of these various related incidents by specific allega-
tions in the consolidated complaints. See N.L.R.B. v. Fant
Milling Company, 360 U.S. 301 (1959); N.L.R.B. v. Central
Power & Light Company, 425 F.2d 1318 (C.A. 5, 1970). In
addition, all such misconduct, as found herein, was fully
litigated at the hearings. Accordingly, Respondent's 10(b)
argument is rejected6°
of a union because it would mean [the employees' ] termination ." I have, as
noted, relied upon this testimony for background purposes only.
ss In this context , I also find and conclude that Boecker was attempting
to solicit and adjust employee grievances . (And see Supervisor Lane's related
conduct, infra, section VI, A, 3. Management's attempt to solicit and adjust
employee grievances while conducting a vigorous campaign against unioni-
zation is, under the circumstances , coercive, Cf. N.L.R.B. v. Eugene Yokell,
d/b/a Crescent Art Linen 387 F.2d 751, 755 (C.A. 2, 1967); Texaco, Inc. v.
N. L. R. B., 436 F.2d 520, 525 (C.A. 7, 1971).
59 Respondent cites allegations pertaining to Boecker 's conversations with
Dean and Pace (discussed above) and Greenwood's conversation with em-
ployees (discussed infra).
Respondent also attempted to strike employee Pace's testimony per-
taining to the above 8(a)(I) violations because of a claimed variance in the
date of the alleged conduct and in the date as testified . This variance, in the
context of like and related allegations against Boecker during the same
general period, cannot be deemed to be substantial . In any event , the matter,
was fully litigated at the unfair labor practice hearings . N.L.R.B. v. Puerto
Rico R a y o n M i l l s , Inc., 293 F.2d 941, 947-948 (C.A. 1 , 1961), and the Respon-
dent "understood the issue and was afforded full opportunity to justify ... "
its conduct . N.L.R.B. v. Mackay Radio & Telegraph Co., 304 U.S. 333, 349-
350 (1938). Respondent 's related contentions with respect to the testimony
concerning the Boecker-Nugent interrogation are rejected for the same rea-
sons.
2. Daniel Greenwood
As found in section II, C, supra, Daniel Greenwood was
present at the home during late February. While assisting in
a phase of construction work then in progress, Greenwood
"overheard" a "group of girls" "talking about the union."
He "walked over" and said:
What is this I hear? . . . What the hell do you want a
union in here for? They told him they were dissatisfied
and nobody would listen to them. . . . [Greenwood]
said, "What do you mean nobody will listen to you?
Why don't you talk to Dan Donovan? He runs the
place.
Under the circumstances, I do not find and conclude that
Greenwood's isolated remarks to the employees were coer-
cive. Consequently, it is unnecessary for me to determine
whether Respondent was otherwise responsible for
Greenwood's remarks 61
3. Shift Supervisor Lane
As found in section II, E, supra, on the evening of March
1, Shift Supervisor Lane questioned employee Pope "what
the button was for" which Pope was then wearing. Pope
explained to Lane that the employees "had come in that day
to ask for recognition." Lane then asked Pope if Pope "had
been with them when they came in." Lane also asked Pope
if Pope "knew what [she] was getting into." Lane threatened
Pope "that the Company wouldn't like it"; that the employ-
ee "was taking a chance with [her] job"; and that "You will
all be fired." Lane, at the same time invited Pope "to go to
Mr. Shepard and present him with [the employees'] prob-
lems. [They] would get more that way than [they] could
through the Union." 62
As found in section II, J, supra, Shift Supervisor Lane
warned employee Izzo during early March "that Mr. Shep-
ard wanted to get rid of two people on this night shift [and]
one is Joyce Jones." 63 Lane, at the same time, stated:
"Well, now, you know with this union, they could find
reasons to get rid of" Jones. On another occasion, Lane
quizzed Izzo at work about a Union meeting held earlier
that day.Lane asked Izzo, "Did you go. . . " and "why do
you want a union? " Izzo then related her grievances and
complaints to Lane. Lane warned Izzo, "You can be fired
for this.... " 64 In addition, Lane warned Izzo that " .. .
This stuff is going to get everybody fired." Lane asked Izzo:
"Why don't you go to Mr. Shepard with your problems
instead of the Union...... Izzo refused. And, on the eve-
ning before the strike, Lane warned Izzo that Donovan will
"put a lock on the door before any union gets in here."
61 Greenwood was an uncle of Daniel Donovan and, at various dates, had
been in charge of construction work at the home and had performed like and
related services for Daniel Donovan elsewhere.
62 Lane talked to the employees about the Union "quite often." Lane
warned the employees that "the Company would be giving [them] a hard time
... and . . . would never stand for a Union . . . never consent to it or give
[the employees] an election."
63 Jones had special permission to report for work 30 minutes late each
evening. Lane told Izzo "to talk to Joyce Jones about coming in at 11:30
pm"
6o Lane admonished Izzo that the Union has a "squealer" and "this union
is going to let [Izzo] be fired."
NEW FAIRVIEW HALL CONVALESCENT HOME 745
I find and conclude that Supervisor Lane coercively inter-
rogated employees, solicited employees to adjust their griev-
ances directly with management in lieu of engaging in
protected union activities, and threatened employees with
discharge and other reprisals for engaging in union activi-
ties, in violation of Section 8(a)(1) of the Act as alleged. (See
cases cited section VI, A, 1, supra.)
"an attempt by management official to persuade work-
ers to join another union." Since I'm the only one who
spoke to you Thursday I must be the management
official they're referring to. You know, as well as I do,
that I never attempted to persuade you to join another
union. Nothing could be further from the truth. I would
never do this, nor would anyone else in management.
I would be unlawful.
4. The speehes by Daniel Donovan
and Shepard
The speech delivered to the employees by Daniel Dono-
van on March 4 is summarized supra, section II, F, 1. Dono-
van made clear to the employees, inter alia, that he was
"shocked" and "taken back" by the organizational effort;
he "didn't think that outside representation was necessary";
"the Union people could make promises that [he] could not
make"; and "the only way the situation could be resolved
was if we had a democratic election.... " I find and con-
clude that Donovan's speech is not violative of Section
8(a)(1) of the Act.
The speech delivered to the employees by Administrator
Shepard on March 5 is summarized supra, section II, F, 2.
Unlike Donovan Shepard apprised the assembled employ-
ees, inter alia, that the Union was "gangsters [who] liked to
riot"; a "bunch of racketeers." And, as found, Shepard in
effect made clear to the workers that if they had any prob-
lems they should have come to management first and that
management could get the employees a union. Under the
circumstances, I find and conclude that Administrator
Shepard's encouragement of employees during the cam-
paign to abandon the Union and bring their problems di-
rectly to management, accompanied by his assertion that
management could get the employees a union, has a tenden-
cy to interfere with the Section 7 rights guaranteed the
employees. See N.L.R.B. v. Marsellus Vault & Sales, Inc.,
431 F.2d 933, 937 (C.A. 2, 1970), and cases cited.65
Respondent argues (br. p. 134) that "the Employer's
March 9, 1971, notice unequivocally dispelled the employ-
ees' misinterpretation of the Employer's speeches and the
Union's erroneous accusation of wrong doing." That March
9 notice (see section II, F, 3, supra), signed by Daniel Dono-
van, stated in part:
Last Saturday an article appeared in the New Haven
Journal Courier concerning our current union situa-
tion. The information in the article was obtained from
the union. I don't intend to comment on every article
the union puts in the paper. But a number of the state-
ments were such out and out lies that I feel obligated
to you to set the record straight.
According to the article the union complained about
ss Respondent's contention that Shepard 's statements to the employees
are protected by Section 8(c) is without merit . As the Supreme Court stated
in N.L.R.B. v. Gissel Packing Co., supra, 395 U.S. at 616-620:
. an employer's rights cannot outweigh the equal rights of the em-
ployees to associate freely, as those rights are embodied in Section 7 and
protected by Section 8(a)(1) and proviso to Section 8(c).
And see Irving Air Chute Company Inc. v. N.LR.B., 350 F.2d 176, 180 (C.A.
2, 1965).
In the context of Respondent's other coercive conduct both
before and after the posting of this notice , I find and con-
clude that the language contained therein did not sufficient-
ly "erase the coercive effect" of prior statements made by
Shepard . See United States Rubber Company v. N.L.R.B.,
384 F .2d 660, 663-664 (C.A. 5, 1967), and cases cited.
5. Food Service Manager Distasio
As found supra, section II, H, Food Service Manager
Distasio told employee Gargiulo during March that Gargiu-
lo "wouldn't get a pay raise as long as this union stuff was
going on" and Respondent withheld the employee's raise
for this reason. I find and conclude that such conduct and
accompanying statements are violative of Section 8(a)(1) as
alleged. Cf. N.L.R.B. v. Dorn's Transportation Company,
Inc., 405 F.2d 706, 715 (C.A. 2, 1969). Unlike in Dorn's,
supra, this is "a situation where the employer had by public
announcement specifically advised the employees [here,
Gargiulo] that the union is causing them to lose a wage
increase they would otherwise have received." Further, as
found supra, section II, I, Distasio asked employee Lar-
ocque during late April "if [she] had signed a Union card
.. " and would she go on strike "if the girls went out."
Distasio also asked Larocque "why" she wanted a Union.66
In the circumstances, I find and conclude that Food Service
Manager Distasio's conduct was coercive as alleged. See
N. L.R.B. v. Gladding Keystone Corp., supra.67
In addition, as found in section II, I, supra, Daniel Dono-
van, Shepard, and Distasio visited the kitchen during late
March and asked the various employees present "why they
wanted a union." In the context of Distasio's coercive con-
duct in the kitchen, management's demonstrated hostility to
unionization and the nature of the interrogation by upper
management, I find and conclude that this interrogation
was coercive. See N. L. R. B. v. Gladding Keystone Corp., su-
pra.68
" Although Distasio claimed that the purpose of his questioning was
because "he was worried about staffing in the kitchen ," he never explained
this to Larocque and his antiunion statements to Larocque and others go
beyond this asserted purpose.
7 In this context , equally coercive were Distasio statements to employee
Gaura that the employees were "very foolish"; they "were wasting (their]
time" ; they "wouldn't get any more anyway whether (they] had a union or
not"; if "they want a union they can have one ... but not that one. .
(Supra, section 11, 1.) See N. L. R. B. v. Marsellus Vault & Sales, Inc., supra, 431
F.2d at 937.
611 do not regard the minor variation in dates between the pleadings and
testimony with reference to this conduct as material . Likewise , although the
complaint arguably fails to specifically charge Distasio with this interroga-
tion, Distasio is charged with like and related misconduct, the matter was
fully litigated and defended, and since Shepard and Donovan were also
present at the conversation and charged with the misconduct, the failure to
also name Distasio is inconsequential.
746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
6. Shift Supervisor Dennison
As found supra, section II, L, Shift Supervisor Dennison
warned a group of assembled employees during mid-April
that "if we did get the union in here we would lose ev-
erything we had, such as [employee] benefits, . . . holiday
time, . . . sick pay and whatever other kinds of benefits [the
employees] had." I find and conclude that such statements
violate Section 8(a)(1) as alleged.
7. Shepard's statements to employees
As found supra, section II, N, during April employee
Linda Alger was called into Administrator Shepard's office.
There, in the presence of Director of Nurses Boecker, Shep-
ard asked Alger, inter alia, if she "had heard anything about
the Union." Alger stated that she didn't think it was fair for
[her] to name people to him. . . " During this conversation,
Boecker accused Alger of being "disloyal." During early
May, Shepard similarly interrogated employee Stopka in his
office. Shepard asked Stopka if she had "heard anything
about the union? " Stopka said, yes. Shepard mentioned to
Stopka that coworker Dean "was passing out union cards
and talking about the union." Shepard then asked Stopka
if Dean talked to Stopka "about the Union." Stopka did not
answer this question. Shepard persisted but Stopka re-
mained silent. During this same interrogation, Shepard ap-
prised Stopka that "they usually hired people at $1.80 an
hour, but since [Stopka] had experience he could probably
get [her] a dime raise.... " I find and conclude that the
foregoing interrogations by Administrator Shepard were
coercive and unlawful. N. L. R. B. v. Gladding Keystone Corp.,
supra.
8. Management's response to the work
stoppages and attendance by employees
at the representation hearings in Boston
As found in section II, D, G, and M, supra, unit personnel
engaged in series of short-term work stoppages. The em-
ployees, as planned in advance, left their duty stations and
were joined by off-duty workers and union representatives
in a confrontation with management. On various occasions,
off-duty personnel and union representatives attempted to
and did enter the Employer's property requiring manage-
ment to seek police assistance. Respondent admittedly is-
sued verbal and written warnings to both on-duty personnel
who left their duty stations and off-duty personnel who
entered or attempted to enter the premises. Thus, commenc-
ing after the March 5 walkout and work stoppage, manage-
ment apprised the employees, inter alia, that it "will not
tolerate such conduct"; "repetition of this conduct would
result in disciplinary action"; "Each employee who left her
work station will be docked for the time"; and "If there is
any repetition of this conduct, more severe disciplinary ac-
tion will be taken." Administrator Shepard, as found in
section II, M, supra, apprised employees on one such occa-
sion:
I called them all together and told them that, for those
who had taken part in the first walkout the previous
day, that was an immoral and illegal act, that we did
not wish this to go any further and that if they took part
in a second walkout we would consider disciplinary
action.... [As] for those who took part in the second
walkout . . . we would take disciplinary action if it
occurred again and we would consider discharge.
As for those off-duty employees who entered the premises
to participate in these confrontations, Shepard apprised
them, inter alia, that they were trespassing and should not
do so again. Thus, Shepard told employee Betzner:
I told her that she came into the building the day before
... she was trespassing on private property, that she
was not on duty, and when she was not on duty we did
not want her on the property. . . . And I told her if this
occurred again we would summon the police and have
her arrested for trespassing... .
There were such confrontations and work stoppages, as
noted above, on March 5 and 25 and April 14. And, as
found in section II, G, supra, Union Representative Seelig
warned Shepard during the afternoon of March 5 that man-
agement "would have more of the same.... "
Counsel for General Counsel argues in his brief (pp.
55-56):
Irrespective of the otherwise protected nature of the
employees' actions (so-called "walkouts") on March 5,
March 25 and April 14, the upshot of Respondent's
unlawful conduct which arose therefrom, in essence,
was the broad and limitless manner which Respondent
interferred with or otherwise sought to restrain the ex-
ercise of Section 7 rights by its employees.
However, Section 7 does not immunize all employment-
related activities without regard to the means employed or
the objectives sought. Thus, concerted activity has been
held unprotected where the objective of the activity contra-
venes the provisions or basic policies of the Act or the
provisions of a related federal statute 69 or the means uti-
lized involve major violence or misconduct,70 or are other-
wise plainly "indefensible" 71 by all recognized standards
"American New Co., 55 NLRB 1302 (1944) (strike to compel wage in-
crease in violation of Wage Stabilization Act); Thompson Products, Inc., 70
NLRB (1946), vacated 72 NLRB 886 (1947) (strike to compel employer to
violate Board certification); N.L. R.B. v. Brashear Freight Lines, Inc., 119
F.2d 379 (C.A. 8, 1940) (strike to compel employer to recognize minority
union); The Hoover Company v. N.L.R.B., 191 F.2d 380, 385-389 (C.A. 6,
1951) (boycott to compel employer to recognize one union while representa-
tion petition filed by another union was pending before the Board ); American
Rubber Products Corporation v. N.L.R.B., 214 F.2d 47, 50-52 (C.A. 7, 1954)
(strike to compel wage increase which would have violated W.S.B. regula-
tions).
70N.L.R.B. v. Fansteel Metallurgical Corporation, 306 U.S. 240 (1939)
(unlawful siezure of employer 's property); Southern Steamship Company v.
N.L.R.B., 316 U.S. 31 (1942) (strike which constituted mutiny under criminal
code); Victor Products Corporation, v. N.L.R.B., 208 F.2d 834 (C.A.D.C.,
1953) (forcibly barring ingress to plant); Hart Cotton Mills, Inc., 91 NLRB
728 (1950) (assault with deadly weapon); Old Town Shoe Company, 91 NLRB
240 (1950) (breaking windows in nonstriker's home).
11 Harnischfeger Corp., 9 NLRB 676, 686 (1938).
NEW FAIRVIEW HALL CONVALESCENT HOME 747
of conduct 72
Work stoppages which are partial, intermittent, or recur-
rent have been held unprotected because they produce "a
condition that [is] neither strike nor work." 73 Thus, the
Board and the courts have deemed it an "indefensible"
tactic for employees to refuse to work on the terms pre-
scribed by their employer, and yet to remain on their jobs
and thus deny employer the opportunity to replace them
with workers who will accept these terms. International
Union, U.A. W. v. Wisconsin E. R. Bd., 336 U.S. 245, 255-
256 (1949); N.L.R.B. v. Montgomery Ward & Co., 157 F.2d
486, 496 (C.A. 8, 1946); C.G. Conn Limited v. N. L. R. B., 108
F.2d 390, 395-397 (C.A. 7, 1939); Valley City Furniture Co.,
supra; Honolulu Rapid Transit Company, Limited, 110
NLRB 1806, 1809-10 (1954). Cf., N.L.R.B. v. Insurance
Agents' International Union [Prudential Ins. Co.], 361 U.S.
477, 492-494 (1960). To countenance such conduct, the
Board has said, would be to allow employees "to do what
we would not allow any employer to do; that is, unilaterally
determine conditions of employment" Valley City Furniture
Co., supra, 110 NLRB at 1594-95.
This exception to the broad guarantees embodied in Sec-
tion 7 does not, however, authorize an employer to use the
penalty of discharge to punish employees for engaging in a
single , concerted work stoppage of limited duration in pro-
test over working conditions. Cf., N.L.R.B. v. Washington
Aluminum Company, 370 U.S. 9, 17 (1962); N.L.R.B. v. Plas-
tilite Corp., 375 F.2d 343, 349-350 (C.A. 8, 1967); N.L.R.B.
v. Buzza-Cardozo, 205 F.2d 889, 890 (C.A. 9, 1953), cert.
denied 346 U.S. 923 (1954); N.L.R.B. v. Kennamental, Inc.,
182 F.2d 817, 819 (C.A. 3, 1950); Electromec Design & Dev.
Co., Inc., 168 NLRB 763, 1069 (1967); Wilder Finishing Co.,
138 NLRB 1017, 1019-20 (1962). Rather, it is only when
employees adopt a continuing strategy of work stoppages or
refusals to perform assigned tasks that their activity may
become "indefensible" and lose its protected status. As the
Court observed in N.L.R.B. v. Blades Manufacturing Corpo-
ration, 341 F.2d 998, 1005 (C.A. 8, 1965), upholding the right
of an employer to discharge employees who staged three
1-day walkouts within a period of less than 2 weeks, it was
"the repetitiousness of the intermittent walkouts within a
short span of time" (emphasis added) that rendered the
activity unprotected. See also International Union, U.A. W. v.
Wisconsin E. R. Bd., 336 U.S. 245 (1949) (26 "special meet-
ings" called during working hours by union over 5-month
period); Honolulu Rapid Transit Co., Ltd., 110 NLRB 1806,
1809-10 (1954) (refusal to work weekends over 2-1/2
months period). Cf. First National Bank of Omaha v. N.L.R.
72 Underwood Machinery Co., 74 NLRB 641, 646-647 (1947), Elk Limber
Co., 91 NLRB 333 (1950), and Farber Bros., Inc., 94 NLRB 748 (1951)
(slowdowns); N.L.R.B. v. Sands Manufacturing Company, 306 U.S. 332
(1939), and W.L. Mead, Inc., 113 NLRB 1040 (1955) (strikes in breach of
collective bargaining agreement ); N.L.R.B. v. Local 1229, International
Brotherhood of Electrical Workers [Jefferson Standard Broadcasting Co.], 346
U.S. 464 (1953) (showing unnecessary disloyalty to employer through published
attack on employer's product); N. L. R. B. v. Reynolds & Manley Lumber Compa-
ny, Inc., 212 F.2d 155 (C.A. 5, 1954) (walking off job in such manner as to
create dangerous situation ); Carnegie-Illinois Steel Corp., 84 NLRB 851
(1949), afd. 181 F.2d 652 (C.A. 7, 1950), and United States Steel Company v.
N.L.R.B., 196 F.2d 459 (C.A. 7, 1952) (walking out without taking adequate
steps to protect plant).
3 Valley City Furniture Co., 110 NLRB 1589, 1594-95 (1954), enfd. 230
F.2d 947 (C.A. 6, 1956).
B., 413 F.2d 921, 924 (C.A. 8, 1969), where the court noted:
"While there is some evidence in the record indicating that
the strike was a partial one and the girls intended to walk
off the job again if their overtime demands were not met,
the record as a whole supports the Examiner's finding to the
contrary...: .
Applying these principles to the facts in this case, I do not
find and conclude that management's warnings and notices
to employees summarized above tended to interfere with the
exercise of employee protected activities. Nor do I find and
conclude that management's coercive conduct as found
herein reasonably provoked these recurrent, intermittent
and partial work stoppages. Cf. Golay & Company, Inc. v.
N.L.R.B., 371 F.2d 259 (C.A. 7, 1966), cert. denied 387 U.S.
944. However, I do find and conclude that Shepard's read-
ing to employees Smith and Abbattello from a State law
which could reasonably be understood by employees to
make unlawful all employee protected activities (supra, sec-
tion II, M), violates Section 8(a)(1) of the Act. Thus, the
State law, as admittedly read to the workers (see Resp. br.
p. 137) provides:
No employees of an employer licensed by the state
department of health under Section 19-32, or their rep-
resentatives, or any other persons shall engage in or
induce or encourage, or attempt to engage in or induce
or encourage, any strike, work stoppage, slow down or
withholding of any goods or services by such employ-
ees or other persons at the institution where they are
employed... .
Such a State prohibition applied to Respondent's employees
would interfere with their rights under Section 7 of the
National Labor Relations Act. Cf. Automobile Workers Etc.
v. O'Brien, 339 U.S. 454 (1950); Amalgamated Assn. v. Wis-
consin Employ. Bd., 340 U.S. 383 (1951). And, requiring the
Employer to post a notice explaining the limitation of its
warnings against unprotected activities will clarify this
ambiguity. "The Company should not object to this oppor-
tunity to make its position clear." Cf. Utrad Corporation v.
N.L.R.B., 454 F.2d 520, 525 (C.A. 7, 1972); N.L.R.B. v.
Harold Miller, d/b/a Miller Charles & Co. 341 F.2d 870, 874
(C.A. 2, 1965).
In addition, as found supra, section II, M, management
had instructed the unit employees prior to the representa-
tion proceedings to be held in Boston that "if they were not
already off that day [the employer] would try to arrange"
time off. Management also allowed the employees to make
arrangements among themselves to be off for the hearings.
Management told the employees, including the nurses aides,
"if this couldn't be arranged that [the employer] thought
they should work that day." Shepard was unable to give all
the aides time off that day. And, at the representation hear-
ing in Boston on April 1, Shepard noted the employees
present. In employee Dean's case, Shepard noted that she
was at the hearing although her mother had called in claim-
ing that the employee was ill that day. Consequently, Shep-
ard issued a warning to Dean and other workers who had
not complied with his instructions. No warnings were given
to employees who were scheduled off that day or had ar-
ranged to be off. Under the circumstances, I do not find that
748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
management's conduct unlawfully interfered with the em-
ployees' protected activities . Cf. N.L.R.B. v. Superior Com-
pany, 199 F.2d 39 (C.A. 6, 1952).
9. The Christmas Bonus
As found in section II, Q, supra, Donovan first acquired
ownership of the New Fairview Home during August
1968.74 The employees at New Fairview were never given
Christmas bonuses until December 197175 The amounts of
the bonus ranged from $3 to $15 depending upon length of
service. Under the circumstances, I find and conclude that
the unprecedented granting of this benefit following the
strike and pending these proceedings was motivated in sub-
stantial part by a purpose to undermine the Union' s remain-
ing support among the employees. See N.L.R.B. v. Yokell,
d/b/a Crescent Art Linen Co., 387 F.2d 751, 755-756 (C.A.
2, 1967); N.L.R.B. v. Orleans Mfg. Co., Inc., 412 F.2d 94,
96-97 (C.A. 2, 1969). As the Supreme Court stated in N.L.R.
B. v. Exchange Parts Co., 375 U.S. 405, 409 (1964):
The danger inherent in well-timed increases in benefits
is the suggestion of a fist inside the velvet glove. Em-
ployees are not likely to miss the inference that the
source of benefits now conferred is also the source from
which future benefits must flow and which may dry up
if it is not obliged.
Donovan could not credibly explain why, after over 3 years,
he suddenly had decided to grant Christmas bonuses to unit
employees.76
10. Beverly Wilmot's conduct
As found in section II, E, and L, supra, Beverly Wilmot
interrogated employees at work during early March with
respect to the union buttons which the employees were
wearing and their related organizational activities. Wilmot
admonished employees that she would "keep after [them]
until" they answered her questions. And Wilmot "kept fol-
lowing" the employees around inquiring "who" wanted the
Union, "why" employees wanted to join the Union, and
"who was in back of it...." Thereafter, as found supra,
Wilmot continued questioning employees concerning their
protected activities. She warned employees that they would
lose their benefits by having a union and she referred to the
Charging Party. Union as "a bunch of crooks." During
April, Wilmot advised employee Paluha that Wilmot had
turned Paluha's name into Boecker "as being one of those
against the Union." Wilmot told Paluha that the antiunion
workers "were actually in the majority"; "there were only
a few troublemakers that were for the Union"; "if we would
74 Donovan also acquired another facility in Connecticut at this same
time.
75 Donovan also instituted the same bonus at his other Connecticut fa-
cily
Counsel for General Counsel also argues in his brief (p. 100) that the
Respondent 's May 20 letter to the strikers was coercive (see section II, P).
As discussed infra, I find and conclude that the strike was at all times material
an economic strike and , under the circumstances , the Employer's May 20
letter to employees is not coercive.
try to unite against them we wouldn't have all this trouble";
employees Dean and Nugent "were troublemakers and [Pa-
luha] shouldn't follow their lead"; and Dean and Nugent
wanted the Union "to protect them" because they "weren't
good workers."
I find and conclude that Wilmot's interrogations, threats
of loss of benefits, and related efforts calculated to induce
employees to abandon the Union are coercive. (See cases
cited section VI, A, 1, supra.) As noted, Wilmot was not
called to testify. Instead, Respondent argues (br. pp.
102-124) that "at all times material herein, Beverly Wilmot
was neither a supervisor within the meaning of the Act nor
an agent of the Employer and, accordingly, the Employer
may not be held responsible for her allegedly unlawful con-
duct." As discussed below, I find and conclude that Re-
spondent is responsible for Wilmot's unlawful conduct.
Counsel for Respondent, relying upon the Board's deci-
sion in Doctors' Hospital of Modesto, Inc., 183 NLRB 950
(1970), argues, inter alia , (br. pp. 122-124):
Wilmot possessed no more authority over lesser skilled
employees than any other staff RN. All such authority
that she possessed was strictly a manifestation of her
professional training. She did not and could not make
effective recommendations affecting the employment
status or pay of employees.
However, counsel for Respondent also acknowledges in his
brief (pp. 103-104) that Wilmot was hired on November 1,
1970, as a staff RN; that shortly thereafter Shift Supervisor
Coe terminated her employment; and that Wilmot "was
appointed by Boecker to serve as supervisor on an interim
basis." Respondent further asserts (pp. 104-109) that Den-
nison was hired as second shift supervisor on December 20,
1970; "that Wilmot and the seccnd shift employees were
fully aware that the independent authority temporarily pos-
sessed by Wilmot subsequent to Coe's leaving the facility
had been completely divested upon Dennison's hire...."
Nevertheless, as discussed below, Wilmot continued there-
after to perform various supervisory duties which she had
performed before the advent of Dennison.77
I find and conclude that Wilmot continued to possess and
openly exercise supervisory authority on a regular basis at
least until May 6. Further, Wilmot's performance of super-
visory functions was not limited to those instances when
Wilmot relieved Dennison; instead, Wilmot acted as a su-
pervisor on a regular basis even when Dennison was pre-
sent78 Director of Nurses Boecker acknowledged that she
77 Counsel for Respondent states (pp. 105-108) that "... Wilmot relent-
lessly tried to usurp Dennison's supervisory authority resulting in heated
arguments between the two. .: ' and that Dennison, "[iln addition to divest-
ing Wilmot of such responsibility, ... took further measures to protect
herself from Wilmot's meddling encroachments on her supervisory authority
...." An example of Wilmot's alleged "meddling encroachments" pertains
to preparation of the weekly time schedule and daily nursing assignment
sheets . Counsel for Respondent states in his brief (p. 107):
The responsibility for the preparation of both sheets was vested with
the shift supervisor. During the hiatus between Coe's leaving and the
hiring of Dennison , the responsibility fell on Wilmot. When Dennison
assumed the position of second shift supervisor, Wilmot should have
turned over that responsibility to"Dennison as a matter of normal ad-
ministrative procedure. However, Wilmot refused to do so.
79 The record suggests that Dennison was in fact hired for Coe's superviso-
NEW FAIRVIEW HALL CONVALESCENT HOME 749
"told the girls that Mrs. Wilmot was in charge of that floor
and they were to take whatever directions that she gave
them."' Employees were told this by Boecker both before
and after Dennison's arrival. And, I find and conclude that
at all times material, Wilmot scheduled, assigned, and ad-
justed the working days and places of assignment for several
shift personnel. Wilmot throughout the pertinent period
preceding the strike changed and implemented time sched-
ules. Dennison acknowledged that Wilmot "noted changes
of employees' work days" during March and April when
Dennison was not at work and, further, when Dennison was
present.80
Wilmot changed workdays of LRN's, RN's, and aides;
refused employee requests to change scheduled workdays;
and directed employees to work on their days off. Nurses
reported to Wilmot for assignments. Wilmot assigned, reas-
signed, and transferred employees. Wilmot granted permis-
sion to employees to leave early or arrive late; she adjusted
employee timecards; she authorized pay adjustments; she
checked on the work of the nursing personnel; she could
require work to be done over; she reported rule infractions
to Shepard; she scheduled and policed break periods; she
reprimanded employees; she adjusted employee grievances;
and she prepared evaluations or "reviews" of nurse's aides
during the pertinent period.
On this record,81 I find and conclude that Wilmot was at
all times material a supervisor within the meaning of the
Act. I do not credit Respondent's claims that the employees
were "fully aware that the independent authority tempo-
rarily possessed by Wilmot subsequent to Coe's leaving .. .
had been completely divested upon Dennison's hire...."
And, under the circumstances, I find and conclude that
Respondent-by permitting Wilmot to operate and act
openly as a supervisor-must bear the responsibility for her
coercive statements. As the Court stated in comparable situ-
ation in Irving Air Chute Co. v. N. L. R. B., 350 F.2d 176, 179
(C.A. 2, 1965):
However, "declarations made by `supervisory em-
ployees' will charge the employer [under the Act] [even]
ry position on a temporary basis since upper management had in mind that
Dennison would become director of nurses at its Golden Hill nursing home.
As Daniel Donovan testified in the representation case:
Q. Did you give any specific instruction regarding the hire of this
individual [ Dennison] ?
A. Yes.
Q. What were these instructions?
A. That she be hired on a trial basis with a view of making her
director of nurses at Golden Hill.
79 Employee Dean credibly testified that "Mrs. Boecker told us that Mrs.
Wilmot was our night supervisor, whatever she said , went... .
80 Dennison admitted that she did not "speak to Mrs. Wilmot" concerning
Wilmot's "switching days off without [Dennison's] knowledge when [Denni-
son] was present."
81 The foregoing summary of facts is based upon the mutually corrobora-
tive testimony of employees Dean and Conroy as substantiated in part by
Shepard, D. Donovan , Dennison , and Boecker . Insofar as the testimony of
Dean and Conroy differ from the testimony of Shepard, Donovan, Dennison,
and Boecker , I credit the testimony of Dean and Conroy as summarized
above and substantiated by management ' s witnesses.
Counsel for Respondent argues (pp. 119-121) that "Conroy and Dean
jointly conspired to and proffered fraudulent testimony embellishing
Wilmot's authority because of their mutual bias against her and the Employ-
er." I reject this contention . I have scrutinized their testimony and note that
management 's witnesses substantiate the employees ' testimony.
though they would not charge him under the doctrine,
of respondent superior." N. L. R. B. v. Moench Tanning
Co., 121 F.2d 951, 953 (2d Cir. 1941). This broader rule
places responsibility on an employer for acts of a super-
visor when "employees would have just cause to believe
that he was acting for and on behalf of the company."
N. L. R.B. v. Texas Ind Oil Co., 232 F.2d 447, 450 (9th
Cir. 1956).
Also see N.L.R.B. v. Solo Cup Company, 237 F.2d 521, 523-
524 (C.A. 8, 1950).82
B. The Nature of the Strike; Tierney's
Suspension and Discharge; Respondent's
Unlawful Conduct in Reinstating the
Strikers
As found supra, section II , P, the employees met following
the suspension of employee Tierney and "voted at this meet-
ing unanimously to demand the reinstatement of Mrs. Tier-
ney and to give management . . . a 24-hour deadline to
reinstate Mrs. Tierney . . . ; if Mrs. Tierney was not reins-
tated, the workers voted to strike...." An ultimatum to
this effect was communicated to the Employer ; the Employ-
er rejected the ultimatum ; and the strike commenced.
Under settled principles , where an employer's unfair la-
bor practice conduct constitutes "one of the causes of [a]
strike, . . . the strike [is] an unfair labor practice strike and
the strikers [are] protected against replacement during the
period of the strike... ." N.L.R.B. v. Milco, Inc., 388 F.2d
133, 139 (C.A. 2, 1968), and cases cited . However in the
instant case, I find and conclude , as discussed in section II,
0, supra, that Tierney's suspension and discharge were not
in violation of Section 8(a)(1) and (3) of the Act . In short,
Tierney was suspended and discharged because she distri-
buted leaflets and told employees about an untrue attempt
by management to bribe her and not because of protected
activities . Accordingly-although employees mentioned at
the strike vote meeting Respondent 's coercive conduct-I
find and conclude that under the circumstances the only
cause of the ensuing strike was, as stated in the Union's
24-hour deadline ultimatum , Tierney's suspension and dis-
charge . Therefore , I find and conclude the strike was not
caused by Respondent's unfair labor practices and, further,
Respondent did not thereafter engage in unlawful actions
which would convert this strike into an unfair labor practice
strike . Cf. N.L. R.B. v. Plastilite Corporation, 375 F.2d 343,
348 (...A. 8, 1967); N. L. R. B. v. Waukesha Lime & Stone Co.,
Inc., 343 F .2d 504, 510 (C.A. 7, 1965).
In addition, as discussed in section V, supra, I find and
conclude that as of September 14, Respondent had jobs for
at least the 18 strikers named therein ; Respondent failed
and refused to immediately reinstate the 18 and thereafter
delayed reinstatement or otherwise failed to offer timely
reinstatement to the 18 and employee Bernard (supra, sec-
tion V , D) when vacancies arose; Respondent also did not
reinstate employee Gargiulo to her former or substantially
equivalent job, assigned Gargiulo a more onerous job, and
821 note that Wilmot's coercive conduct was essentially similar to the
coercive conduct of admitted supervisors.
750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discharged her because she had engaged in protected activi-
ties (section V, E, supra); and Respondent, by the above
conduct, violated Sections 8(a)(1) and (3) of the Act. See
discussion supra, section V, A, and cases cited.
C. Respondent's Refusal to Reinstate
Employees who Engaged in Strike
Misconduct
Respondent refused to reinstate striking employees L.
Alger, M. J. Fazzino, Betzner , Dean, Tierney, Izzo, and
Adorno because of alleged acts of strike misconduct.
Under settled principles a striking employee may disqual-
ify himself for reinstatement by engaging in serious acts of
misconduct during a strike. "The question in each case is
whether, under the circumstances, the alleged misconduct
of the striker is sufficient to justify the refusal to reinstate."
W. J. Ruscoe Company v. N.L.R.B., 406 F.2d 725, 727 (C.A.
6, 1969). For, every act of impropriety on the part of a
striking employee does not automatically deprive the em-
ployee of the protection of the National Labor Relations
Act. As the Seventh Circuit stated in N.L.R.B. v. Illinois
Tool Works, 153 F.2d 811, 815-816 (C.A. 7, 1946):
We believe, as petitioner argues, that courts have
recognized that a distinction is to be drawn between
cases where employees engaged in concerted activities
exceed the bounds of lawful conduct in "a moment of
animal exuberance" (Milk Wagon Drivers Union v.
Meadowmoor Dairies, Inc., 312 U.S. 287, 293 (1941) or
in a manner not activitated by improper motives, and
those flagrant cases in which misconduct is so violent
or of such serious character as to render the employees
unfit for further service, cf. N.L.R.B. v. Fansteel Met-
allurgical Corp., 306 U.S. 240 (1939) and Southern
Steamship Co. v. N.L.R.B., 316 U.S. 31 (1942), and that
it is only in the latter type of cases that the courts find
that protection of the right of the employees to full
freedom in self-organizational activities should be sub-
ordinated to the vindication of the interests of society
as a whole.
The Board, in striking the balance required under the
foregoing principles, has determined that threats of physical
violence and property damage constitute " serious miscon-
duct" justifying the refusal to reinstate a striking employee.
See, generally, Firestone Tire & Rubber Company, 187
NLRB 54 (1971), enforcement denied 449 F.2d 511 (C.A. 5,
1971); Terry Coach Industries, Inc., 166 NLRB 560, fn. 2,
563-564 (1967), enfd. 411 F.2d 612 (C.A. 9, 1969); Longview
Furniture Company, 110 NLRB 1734 (1954) (on remand).
Thus, for example, the Board has held that "threatening to
put a bullet in [a person's] back if he . . . did not leave town
that night" and an employee's "involvement in the threat"
to "cause serious injury to" an employer's drivers and dam-
age to their equipment if that company persisted in crossing
the picket lines constitute sufficient acts of misconduct to
deny reinstatement. Firestone Tire & Rubber Company, su-
pra. On the other hand, the Board has held that "name
calling and vague hand gestures" and a "vague and ambigu-
ous" vulgar remark, which could be "understood to be a
vague threat ...," were insufficient acts of misconduct to
justify a refusal to reinstate (Ibid.). Moreover, the Board, in
determining whether reinstatement of unfair labor practice
strikers will effectuate the policies of the Act, "will balance
the severity of the employer 's unfair labor practice which
provoked the industrial disturbance against whatever em-
ployee misconduct may have occurred in the course of the
strike ." N.L.R.B. v. Thayer Co., 213 F.2d 748, 755 (C.A. 1,
1954), cert . denied 348 U.S. 883 ; Golay & Co. v. N. L.R.B.,
371 F.2d 259, (C.A. 7, 1967), cert . denied 387 U.S. 944.
As discussed supra, section IV, F, I find and conclude that
Linda Alger assaulted nonstriker Cicarelli at the latter's
home ; banged on cars attempting to enter the premises
during the strike; laid down in the Employer's driveway
until directed by police to leave ; and threatened nonstrikers
Cicarelli and Seine at the picket line .83 Under the circum-
stances , I find and conclude that Linda Alger engaged in
serious acts of misconduct during the strike and, conse-
quently , rendered herself unfit for further employment and
reinstatement.
As discussed in section IV, B, E, and F, I find and con-
clude that Mary Jane Fazzino participated in threatening
nonstrikers Seine and Cicarelli at the latter 's home; threw
a rock through Cicarelli 's car window at Cicarelli 's home;
assaulted Cicarelli at the latter's home ; threatened nonstrik-
ers Cicarelli and Seine at the Employer 's facility ; partici-
pated in the attempt to invade the nursing home during the
strike ; and squirted nonstrikers with a water pistol as they
left the facility . 84 I find and conclude that Mary Jane Fazzi-
no thereby engaged in serious acts of misconduct rendering
her unfit for further employment and, therefore, deny her
reinstatement.
As discussed supra, section IV , B, and E, I find and con-
clude that Grace Betzner forcibly entered the Employer's
facility during the strike; participated in threatening non-
strikers Cicarelli and Seine at Cicarelli 's home ; and partici-
pated in mass picketing . 85 I find and conclude that Betzner
engaged in serious acts of misconduct rendering her unfit
for further employment and should , therefore , be denied
reinstatment.
As discussed supra, section IV, B, D, E, and F , I find and
conclude that Delores Dean threatened nonstriker Arm-
strong at the latter's home ; called in a bomb scare to the
nursing home during the strike ; threatened nonstriker Ci-
carelli at the facility; threw small rocks or pebbles at Super-
visor Dennison's car while passing through the picket line;
attempted to forcibly enter the facility during the strike; and
engaged in mass picketing and banged on a car passing
through the picket line.86 I find and conclude that Dean
engaged in serious acts of misconduct rendereing her unfit
83 As noted in section IV, D, Alger participated in distributing the Union's
"Peddlers of Health Care" pamphlet. It is unnecessary for me to determine
whether the distribution of this or related pamphlets rendered her unfit for
further employment.
84 It is unnecessary for me to determine whether this employee's alleged
participation in defaming the Employer's services rendered her unfit for
further service.
85 It is unnecessary for me to determine whether Betzner rendered herself
unfit for further employment by allegedly "maliciously defaming the
Employer's services."
eb It is unnecessary for me to determine whether Dean rendered herself
unfit for further employment because she allegedly "malicously defamed the
Employer's services" and "uttered malicious remarks to Armstrong concern-
ing her personal life."
NEW FAIRVIEW HALL CONVALESCENT HOME 751
for further employment and, therefore, deny her reinstate-
ment.
As discussed supra, section IV, E, I find and conclude that
striker Adorno participated in the threatening of nonstriker
Armstrong at the latter's residence. And, as discussed supra,
section IV, F, I find and conclude that striker Izzo attempt-
ed to physically prevent nonstriker Armstrong from enter-
ing the facility during the strike and threatened Armstrong.
Under the circumstances, I find and conclude that the mis-
conduct of Adorno and Izzo were serious and rendered
them unfit for further employment and, therefore, would
deny them reinstatement 87
In denying reinstatement to the employees named above,
I have considered their misconduct in the context of
Respondent's coercive conduct and the extended strike.
Nevertheless, I find and conclude that the employees' seri-
ous acts of misconduct are without reasonable justification
or provocation.88
D. The Propriety of a
Bargaining Order
As discussed supra, section III, A , I find and conclude
that a unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9 of the Act is:
All full-time and regular part-time service and mainte-
nance employees employed by Respondent at its Clif-
ton Street, New Haven, Connecticut facility, including
nurses' aides, kitchen employees, cooks, maintenance
employees, housekeeping employees, and laundry em-
ployees; exclusive of all office clerical employees, pro-
fessional employees, licensed practical nurses,
registered nurses, physical therapist, social workers, so-
cial service director, in-service director, charge nurse,
shift supervisors, activities' director, guards and all
other supervisors as' defined in the Act.
Further, as discussed in section III, B, and C, supra, I find
and conclude that a majority of employees in the aforesaid
unit voluntarily and knowingly signed valid authorizations
designating the Union as their bargaining agent prior to
March I and 2 and April 7, at which times the Union
87 It is unnecessary for me to determine whether Adorno was also ren-
dered unfit for reinstatement because she allegedly "maliciously defamed the
Employee's services " Likewise, it is unnecessary for me to determine whether
Dean is unfit for reinstatement because she allegedly "authored and edited
a newspaper article which maliciously defamed the Employer" (quoted at p.
178 in Respondent's beef and identified as Resp . Exh. 6). However, with
respect to Resp. Exh. 6, I note my order dated September 6, 1972, denying
Respondent's motion to receive Resp. Exh 6 in evidence because as stated
therein:
I find and conclude that counsel for Respondent had sufficient opportu-
nity during the hearing to offer Respondent Exhibit 6 into evidence; that
counsel for Respondent's motion [dated Aug . 11, 19721 is untimely; and
that to grant said motion would prejudice counsel for General Counsel
and Charging Party from adducing further evidence pertaining to Re-
spondent Exhibit 6 for identification... .
Accordingly, I do not rely upon this exhibit.
ss As for Tierney, I have found that she was suspended and discharged
for nondiscriminatory reasons prior to the strike . It is unnecessary for me to
review her alleged acts of misconduct summarized in section IV, supra.
repeatedly had demanded recognition from the Employer in
the aforesaid unit. As discussed above, I find and conclude
that Respondent declined the Union's demandszfor recogni-
tion and, instead, engaged in pervasive and extensive acts
of coercion and restraint of and interference with employee
Section 7 rights.
The legal principles ordinarily relevant in cases of this
nature are those stated by the Supreme Court in N.L.R.B.
v. Gissel Packing Co., 395 U.S. 575 (1969). In Gissel, 'the
Supreme Court sustained the Board's remedial authority to
issue a bargaining order in cases where unfair labor practic-
es have been committed "that interfere with the election
process and tend to preclude the holding of a fair election."
Id. at 594. The Court indicated that a bargaining' order
would be appropriate (1) where the employer's unfair labor
practices are so "pervasive" and "coercive" that it is the
only effective means of remedying those unfair labor prac-
tices, or (2) where the unfair labor practices, though less
substantial, are nonetheless such that "the Board finds that
the possibility of erasing the effects of past practices and of
ensuring a fair election (or a fair rerun) by the use of tradi-
tional remedies, though present, is slight and that employee
sentiment, once expressed through cards, would, on bal-
ance, be better protected by a bargaining order." Id. at 614.
However, in the instant case, Respondent asserts, inter
alia, that a bargaining order should not enter because of the
Union's misconduct. Recently, in Allou Distributors, Inc.,
201 NLRB No. 4 (1973), the Board dealt with a similar
contention. The Board noted that previously, in Laura
Modes Company, 144 NLRB 1592 (1963),
... the employer, after the union requested recogni-
tion based on an authorization card majority, field two
separate meetings with the employees in which it re-
quested the employees to withdraw from the Union,
told them it did not intend to contact the union the next
day as promised, or any day thereafter, threatened
them with layoffs, and reduction of work, and an-
nounced it would never sign a contract with the union.
Apprised of this conduct, the union sent nine business
agents to the plant "to bolster [the employees'] mo-
rale." Upon being refused entry to the premises, one of
the agents struck an employer representative, and
pushed around an office employee who was attempting
to telephone the police. On another occasion, while a
strike was in progress, the same employer representa-
tive was assaulted. Although 8(b)(l)(A) charges were
filed, a settlement agreement was entered into, and the
CB complaint was withdrawn.
The Board found that the employer's conduct evi-
denced an intent to undermine the union's majority
status and to evade the employer's bargaining obliga-
tion, thereby violating Section 8(a)(1) and (5).
However, in Laura Modes, supra the Board declined to
enter a bargaining order, stating:
But our finding that the Respondents acted unlaw-
fully prior to the Union's misconduct is not to be taken
as condonation of the Union's subsequent resort to or
sanction of violent acts in furtherance of its demand
that the Respondents immediately recognize and bar-
gain with it. An atmosphere of violence and intimida-
752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion can hardly be expected to produce Respondents'
participation in reasoned discussion with union agents
about the subjects of collective bargaining.
For we cannot , in good conscience , disregard the
fact that, immediately before and immediately after it
filed the instant charges, the Union evidenced a total
disinterest in enforcing its representation rights
through the peaceful legal process provided by the Act
in that it resorted to and/or encouraged the use of
violent tactics to compel their grant. Our powers to
effectuate the statutory policy need not, we think, be
exercised so single-mindedly in aiming for remedial
restoration of the status quo ante, that we must disre-
gard or sanction thereby union enforcement of an
employer's mandatory bargaining duty by unprovoked
and irresponsible physical assaults of the nature in-
volved here . We recognize of course that the employ-
ees' right to choose the Union as their representative
survives the Union 's misconduct . But we believe it will
not prejudice the employees unduly to ask that they
demonstrate their desires anew in an atmosphere free
of any possible trace of coercion.
In Allou, the Board applied the Laura Modes rationale,
stating:
In the same vein, the Union here engaged in a delib-
erate plan of intimidation and violence in order to
insure the employees ' adherence to the Union. This
callous attempt to enforce its representation rights-
notwithstanding the Company 's own unlawful and de-
plorable conduct-is, in our opinion , of such a nature
as to preclude a bargaining order remedy . We therefore
believe that in light of the coercive conduct which has
heretofore occurred by both parties, the policies of the
Act will best be effectuated by directing a remedial
election so that the employees , themselves, can de-
termine the representation status of the Union 89
And see, World Carpets, 188 NLRB 122 ( 1971), enforcement
denied 463 F.2d 57 (C.A. 2, 1972).
In this case, I find and conclude that the Charging Party
Union (as discussed supra, section IV) engaged in serious
acts of misconduct during the strike . Thus, I find and con-
clude that Union Representative Brown accompanied by
striking employees forcibly entered the Employer's nursing
home during the strike ; Union Representative Brown ac-
companied by striking employees and others followed\,non-
striking employees to and from work and repeatedly
threatened them with physical harm and property damage;
striker Dean, also a picket captain for the Union, called in
89 The Board also stated:
In accord with the foregoing we shall direct the Regional Director to
direct and supervise the conduct of an election (1) when compliance, with
our Order herein is voluntarily achieved, after the posting period has
elapsed and at such time as the Regional Director determines that a free
election can be held; or (2) should the Respondents fail to comply with
the provisions in this Decision and Order and it is necessary to have this
Order enforced by a decree of a United States court of appeals, upon
the Respondents' full compliance with such decree.
a bomb scare to the nursing home during the strike; Union
Representative Ciulla threatened nonstriking employee
Rich with property damage; Union representatives partici-
pated in mass picketing, blocking the ingress and egress of
nonstrikers and banging on cars; Union Representative
Morico kicked a car and cursed at and threatened manage-
ment and, thereafter, attempted to run one of the
Company's representatives off the road during the strike;
striker Dean threw small rocks or pebbles at a supervisor's
car attempting to leave the facility during the strike; strikers
Mary J. Fazzino and Linda Alger assaulted a nonstriker and
damaged her property; and union representatives threat-
ened, followed and harrassed management's representatives
as they attempted to enter and leave the facility. And, as
found supra, section II, G, M, and P, even before the strike
union representatives repeatedly attempted to enter the
Employer's facility without permission.90
In sum, I find and conclude that, as the Board stated in
Laura Modes Company, supra, 144 NLRB at 1596: "in the
particular circumstances of this case the policies of the Act
and the legitimate interests of the public and the parties will,
best be served by denying the Union the right to invoke our
statutory processes in aid of a demand for recognition as
bargaining representative of Respondent's employees un-
less and until it demonstrates its majority among those em-
ployees through the Board's election procedures."
CONCLUSIONS OF LAW
1. Respondent, Daniel A. Donovan, Charles Brennick,
and John Brennick, co-partners doing business under the
trade name and style of Daniel A. Donovan d/b/a New
Fairview Hall Convalescent Home, is an employer engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act.
2. The Charging Party Union, Local 1199, Drug ,and
Hospital Union a/w National Union of Hospital and Nurs-
ing Home Employees, Retail, Wholesale and Department
Store Union a/w AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
3. Respondent interfered with, restrained, and coerced
its employees in the exercise of the rights guaranteed them
in Section 7 of the Act and thereby committed unfair labor
practices in violation of Section 8(a)(1) of the Act, by inter-
rogating employees about their union activities and the
union activities of their coworkers; by threatening employ-
ees with loss of their jobs, loss of their lunch and break
periods, loss of their benefits and other reprisals if they
chose the Union as their bargaining representative; by tell-
ing employees that it is unlawful for them to engage in any
strike or other protected, concerted activities; by telling
90I find and conclude that the Union is responsible for the misconduct
of Dean, M J. Fazzino, L Alger, and other strikers as found herein. By
engaging in and condoning violence , threats, intinudauon , and other coercive
conduct, the Union established a pattern and practice which Dean and other
strikers followed In such circumstances, the Board attributes the unlawful
actions of an individual to the Union on whose behalf the individual engaged
in misconduct. See, generally, Ray Compton, Reg Dir v. Puerto Rico Newspa-
per Gui&d Local 225, 343 F. Supp. 884 (D .C.P.R., 1972), and cases cited.
It is unnecessary for me to determine whether a bargaining order should
be withheld because, as the Employer argues, "The Union maliciously de-
famed the Employer's services and attempted to close the facility" (br. p. 28).
NEW FAIRVIEW HALL CONVALESCENT HOME
employees that they should have come to management be-
fore going to the Charging Party Union and that manage-
ment could get the employees a union ; by telling an
employee that she would not get a pay raise to which she
was otherwise entitled while the employees were engaged in
Union activities and by withholding the employee's pay
raise for this reason ; by telling an employee that the em-
ployees cannot have the Charging Party Union as their
bargaining representative ; by soliciting employees to nego-
tiate directly with management and adjusting employee
grievances and complaints in an attempt to undermine the
Union ; and by granting employees a Christmas bonus in an
attempt to undermine the Union.
4. Respondent discriminated with respect to the hire and
tenure of employment of its employees and violated Section
8(a)(1) and (3) of the Act by refusing to reinstate the 18
strikers listed below on September 14, 1971, although the
strikers had unconditionally applied for reinstatement; by
thereafter delaying and failing to offer timely reinstatement
to said 18 strikers and striker Cynthia Bernard although the
strikers had unconditionally applied for reinstatement; and,
further , by assigning striker Myrtle Gargiulo during early
October 1971 a more difficult job than the employee had
before the strike and by discharging her on October 21,
1971, because she had engaged in protected activities.
The 18 strikers (excluding Cynthia Bernard) are:
1. Lucy Abbattello
2. Brenda Alger
3. Debra Alger
4. Terry Buzzin
5. Marie Conroy
6. Myrtle Gargiulo
7. Andrew Gaura
8. Joyce Jones
9. Rachael Novicki
10. Betty O'Connor
11. Mary Ann Pace
12. Edith Richards
13. Joanne Smith
14. Adel Vaicuilis
15. Lois Fazzino
16, Gertrude LaRocque
17. Gill Sewell
18. Lillian Reynolds
5. The complaint , as amended , should be dismissed inso-
far as it alleges the discriminatory suspension and discharge
of employee Louise Tierney , and other unfair labor practic-
es not specifically found herein.
6. Respondent at all times material is and has been en-
gaged in commerce within the meaning of the Act and the
unfair labor practices found herein affect commerce within
the meaning of Secion 2(6) and (7) of the Act.
THE REMEDY
753
Since the unfair labor practices committed by Respon-
dent are numerous and widespread and go to the very heart
of the Act, I will direct Respondent to cease and desist not
only from committing the specific unfair labor practices
found herein but also from infringing upon any of the rights
guaranteed to employees by Section 7 of the Act.
The record shows that 'the strikers named above in section
VII (except for Gargiulo and Bernard ) have since been of-
fered reinstatement to their former or substantially equiva-
lent positions . Consequently, I will not direct Respondent
to offer reinstatement to them . However , as found herein,
Respondent violated Section 8(a)(1) and (3) by not offering
reinstatement to striker Cynthia Bernard during October
1971. Further, Respondent in violation of Section 8(a)(1)
and (3), did not reinstate striker Myrtle Gargiulo to her
former or substantially equivalent position , but instead as-
signed her a more difficult job during early October and
unlawfully discharged her on October 21, 1971. I therefore
will direct Respondent to offer each of these two employees
(Gargiulo and Bernard) immediate and full reinstatement to
their former jobs, or if those jobs no longer exist , to substan-
tially equivalent jobs, without prejudice to their seniority or
other rights and privileges previously enjoyed by them, dis-
charging, if necessary , any new employees hired to fill such
jobs and retransferring any employees transferred to fill
such jobs.
I will also direct that Respondent make each of the strik-
ers named above (excluding Bernard) whole for any loss of
pay they may have suffered by reason of Respondent's un-
lawful conduct since September 14, 1971, until the date
when Respondent made unconditional offers of full rein-
statement to said strikers . Such compensation is to be com-
puted in accordance with F. W. Woolworth Company, 90
NLRB 289, and shall carry interest in accordance with Isis
Plumbing & Heating Co., 138 NLRB 716. As for striker
Cynthia Bernard , I will direct that Respondent make her
whole for any loss of pay she may have suffered by reason
of Respondent's unlawful conduct since October 1971 (a
more specific date to be determined in compliance) until the
date when Respondent makes an unconditional offer of full
reinstatement to said striker . Compensation to be computed
and determined , as above.
Further , I will direct that employee Gargiulo be made
whole for any loss sustained by her as a result of
Respondent 's unlawful withholding of her pay raise.91
[Recommended Order omitted from publication.]
91 Since there is a pending representation proceeding , it is unnecessary for
me to provide for the direction of an election as contained in the Board's
order in Allou Distributor's, Inc ., supra.