Prospect Gardens of Norwalk, Inc.

National Labor Relations Board - Board Decisions

Jun 27, 1969

177 N.L.R.B. 136 (N.L.R.B. 1969)

136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Prospect Gardens of Norwalk , Inc. and Local 1199,
Drug and Hospital Employees Union , RWDSU,
AFL-CIO and Local 225 , Industrial Workers of
Allied Trades, Party to the Contract. Case
2-CA-11608
June 27, 1969
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND ZAGORIA
On February 20, 1969, Trial Examiner Lowell
Goerlich issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices within the meaning of the National Labor
Relations Act, as amended, and recommending that
it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial
Examiner's Decision. Thereafter, the Respondent
filed exceptions to the Trial Examiner's Decision
and a supporting brief, and the General Counsel
filed exceptions, together with a brief in support
thereof and in support of the Trial Examiner's
Decision, and an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in this case, and hereby adopts the
findings,' conclusions, and recommendations= of the
Trial Examiner, except as modified below.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that the Respondent, Prospect
Gardens of Norwalk, Inc., Norwalk, Connecticut,
its officers, agents, successors, and assigns, shall
take the action set forth in the Trial Examiner's
Recommended Order, as modified below:
1. At the end of paragraph 1(c), substitute a
comma for the period and add:
"provided that nothing herein shall require the
Respondent to cancel or withdraw any benefit
thereunder."
2. Insert the following after paragraph 1(c) and
reletter paragraph 1(d) accordingly:
"(d) Giving effect to any checkoff authorizations
heretofore executed by its employees, authorizing
the deduction of periodic dues, initiation fees, or
other monies for remittance to Local 225."
3. In paragraph 1(e), delete from the first line the
word "similar" and insert in its place "related."
4. Delete paragraph 2(a) and insert in its place the
following:
"(a) Withdraw and withhold recognition from
Local 225, or any successor thereto, as the exclusive
bargaining representative of its employees , unless
and until said labor organization shall have been
certified by the Board as the exclusive representative
of such employees."
5. Insert the following sentence at the end of the
first indented paragraph in the Appendix which
begins with the words "WE WILL":
However, we are not required to change any wage
schedule or working conditions which exist at this
time.
6. Insert the following paragraph in the Appendix
immediately after the sentence which reads, "WE
WILL NOT ask you to join or assist any union":
WE WILL NOT honor any checkoff authorizations
signed by our employees by deducting any money
from wages for payment to Local 225.
'The Trial Examiner correctly found, inter alia , that the distribution of
union authorization cards and solicitation of employee signatures thereto
with the assistance of a management representative rendered them invalid
for the purposes of establishing majority status. Scharr s activities in this
regard are clearly established and are sufficient to support the conclusion
Moreover , it is clear that both Buckner and Griffin were instructed by
Scharf to solicit signatures on the cards , and both therefore acted as agents
of the Respondent when they engaged in such activity . Riker Video
Industries, Inc, 171 NLRB No. 2; Goodman Lumber Company, 166
NLRB No . 48. In view of this finding , it is unnecessary to consider
whether, as the General Counsel contends , Buckner was a supervisor.
'We rind merit in the General Counsel's exceptions to the Trial
Examiner's recommended direction of election , and shall not adopt that
portion of the Trial Examiner' s recommended remedy . In this connection,
we do not adopt the statements in fn . 13 of his Decision and find it
unnecessary to consider whether the Trial Examiner properly included
part-time employees in the unit stipulated by the parties (fn. 14).
We shall also modify his recommended remedy to provide that the
Respondent shall cease giving effect to the dues deduction authorization
cards which were obtained illegally , and to state that the Respondent need
not cancel or withdraw any existing benefits.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
LOWELL GOERLICH, Trial Examiner: The charge in this
proceeding was filed on July 16, 1968, by Local 1199,
Drug & Hospital Employees Union, RWDSU, AFL-CIO,
herein referred to sometimes as the Charging Party or
Local 1199, and served by registered mail on Prospect
Gardens of Norwalk , Inc., Respondent herein, on July 17,
1968. The first amended charge in this proceeding was
filed by Local 1199 on July 24, 1968, and served by
registered mail on the Respondent on or about July 25,
1968, and Local 225, Industrial Workers of Allied Trades
(Party to the Contract), herein called Local 225, on or
about July 30, 1968. A complaint was issued on
September 30, 1968, alleging that the Respondent had
engaged in unfair labor practices in violation of Section
177 NLRB No. 17
PROSPECT GARDENS OF NORWALK, INC.
8(a)(1) and (2) of the National Labor Relations Act, as
amended , herein called the Act . The Respondent filed a
timely answer denying that it had engaged in or was
engaging in the unfair labor practices alleged . The case
came on to be heard ,' on December 9, 10, and 11, 1968,
at Stamford , Connecticut . Each party was afforded a full
opportunity to be heard , to call , examine, and
cross-examine witnesses , to argue orally on the record, to
propose findings of fact and conclusions of law , and to file
briefs . All briefs have been reviewed and considered by
me.
The principal questions before me are: (1) whether the
Respondent rendered unlawful assistance and support to
Local 225 in violation of Section 8 (a)(2) of the Act and
(2) whether , by reason thereof, a purported contract
executed on or about June 1 , 1968, between Local 225 and
the Respondent should be set aside and held for naught.
Upon the whole record and upon his observation of the
witnesses , the Trial Examiner makes the following:
FINDINGS OF FACT AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
The Respondent is, and has been at all times material
herein , a corporation duly organized and existing by virtue
of the laws of the State of Connecticut . Its principal place
of business is located on Prospect Avenue, Stamford,
Connecticut , where it operates a nursing and convalescent
center engaged in the care of the sick and infirmed.
Almost all of the patients at Prospect Gardens are
assigned to the center by the State Welfare Department.
During the past year , which period is representative of
its annual operations generally, Respondent in the course
and conduct of its business operations performed services
valued in excess of $100 ,000 and during the same period
Respondent in the course and conduct of its business
operations purchased materials valued in excess of $25,000
directly from firms located outside the State of
Connecticut . I find , as is admitted by the Respondent,
that at all times material herein the Respondent is, and
has been , an employer as defined in Section 2(2) of the
Act engaged in commerce and operations affecting
commerce as defined in Section 2(6) and (7) of the Act.
11. THE LABOR ORGANIZATIONS INVOLVED
Local 1199 and Local 225 are , and have been at all
times material herein, labor organizations within the
meaning of Section 2(5) of the Act.
111. THE UNFAIR LABOR PRACTICES
First : Solomon Scharf is the president and
administrator of the Respondent . In the latter part of
February 1968, while attending a nursing home
association meeting , he heard rumors that there was
"going to be a drive to organize the Connecticut nursing
homes as far as unions are concerned ." At or about the
same time , Scharf was visited by a New York
representative of Local 1115 who said that "he would like
to start organizing the nursing homes in Connecticut." In
that Scharf had a "very unpleasant experience" when he
'At the hearing an amendment to the complaint was allowed in which it
was alleged that the Respondent had violated Sec. 8 (a)(3) of the Act.
Respondent denied the allegations in the amendment.
'Briefs were not submitted to me by Local 225.
137
"fought an organizing drive by a union in another
institution [he] was running ," he became "very worried
about it" and called a friend who operated a nursing
home in New York. Scharf asked him if "he could find
out anything about it ." Thereafter, Abe Neider , president
of Industrial Workers of Allied Trades , Local 225,' was
contacted by a Mr . Stone , whom Neider had known for
about 10 years . Stone told Neider that he had a "friend
[Scharf] that said he might have trouble with an
organizing drive that is going on." Stone asked Neider to
help Scharf. A couple of days later Neider reached Scharf
by telephone and informed him that his friend had asked
him to call him.
Thereafter Scharf and Neider met at a New York City
restaurant . During the conversation which occurred,
Neider confirmed that there was going to be an
organizational drive in Connecticut . He asked Scharf
whether Scharf would let him organize the Respondent's
employees . He told Scharf that his union was a new local
and that it would be "fair to the employees and
employer ." Scharf expressed disappointment "because [he]
didn ' t call Mr . Neider to try to organize the nursing
home" but to get information about the organizing drive.
Scharf explained that almost all of the Respondent's
patients were paid for by the State Welfare Department
and its rates were "low" and it could not "afford any of
the demands" of which he had heard . Neider countered
that his union "would be reasonable to work with because
they are new and they would not push for the kind of
demands that the other established unions did in New
York ." He added that "he could come and try to organize
the people with or without [Scharf' s] consent." The
discussion ended with Neider indicating that he would get
in touch with Scharf.
Second : A few days later Neider appeared at Scharf's
office and requested permission to talk to some of the
Respondent's employees . Scharf replied "You are here.
Well, go ahead ." Neider's visit occurred in the beginning
of March.
Neider contacted a few of the Respondent ' s employees
and talked to them about union benefits. Union
authorizations were not solicited.
Later Neider returned to the Respondent's
establishment and formed an employee committee. Of the
four-member committee Neider designated two members
(Anthony Cuomo and Carolyn Garrison ) and Scharf
designated two members (Eugene Buckner and Edward
Griffin).' Neider met with the committee in a back office.
He told the committee he had left union authorization
cards' with the "office girl" and "as fast as they signed
them up, that is as fast [as he] could get to negotiate a
contract for them ." He told them that he "would work
out conditions" and, if he obtained enough cards, he
would "bring it back to them."
'Local 225 was affiliated with the Industrial Workers of Allied Trades,
Washington , D.C. Local 225 had been issued a charter in January 1968.
Membership in the Local was about 30. It had executed contracts with two
small employers.
Prior to the organization of Local 225 by Neider and several others,
Neider had been a "worker in the colosseum" under Teamsters Local 814.
Neider had not been "in the business of labor relations before:'
'Neider testified , ". . . we got a committee together ." He was asked who
"got this committee together." He answered , "I think I asked Mr. Scharf
to get some and I picked some as I was going out. " Later Scharf named
Griffin as a steward. Griffin served a week in this capacity.
'These cards contained an application for membership , a designation of
the union for collective bargaining , and a dues-checkoff authorization.
138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On April 9, 1968,6 Gladys Russell, an admitted
supervisor, asked certain employees if they would go to
the "green room" as Scharf wanted to catch the day and
night shift in order to talk to them about the Union; that
"he was bringing a union " there . About 18 to 20 women
appeared in the "green room ." Scharf told these
employees that "he was bringing a union in " and that he
"would like for [the employees] to sign the cards for the
union ." He passed Local 225 authorization cards to the
employees present . Some of the employees signed cards
and returned them to Scharf. This was the first time any
of these employees had heard of Local 225.'
In addition to the meeting in the "green room" Scharf
contacted personally other employees. Among these
employees was Fannie Welfare, to whom Scharf gave a
card saying, "that is the card for the Union." Except for
the signature , the card was filled out when handed to
Fannie Welfare. Scharf also gave a card to Daisy Welfare
and told her to sign it, commenting that they were trying
to bring a union in and "[w]e're bringing a union into
Prospect Gardens."
Joseph Patrick Rabbit received his card from Scharf in
the kitchen. It was the first time he had heard about the
Union. Scharf said to him "Would you sign this card,
Joe. We are going to get a union in here." Scharf gave
employee Cuomo his card in the office when he went in to
pick up his pay. Scharf approached Mildred Posener and
asked her to sign a card saying that he had "something
good ." She signed the card . Rigoberto Esquivel received
his card from Scharf. Willie Addison testified credibly,
"When I was in the office to pick up $10 and Mr. Scharf
asked me did I sign the union card , so I said no. So he
says, 'Well, you should sign it.' And I said, `Okay.' So he
told Neomi to give me one, his secretary , and I signed it
and [left] it on the desk ." Jeanette Wilson was also asked
to sign a card by Scharf. At the time the card was handed
to her it was filled out except for the signature.
Scharf admitted that he had engaged in the solicitation
of signatures to cards.'
Eugene Buckner, one of Scharf 's designees on the Local
225 committee , also distributed blank union authorization
cards to several employees and told employee Martha
Grant to go to the office to sign a card.'
`The April 9 , 1968, date is fixed by the date which appears on a union
card signed by employee Mildred Purnell who , during the meeting held in
the "green room," signed a card and entered thereon the date on which it
was signed
'Mildred Purnell , one of the employees present at the meting, asked
Scharf when a representative of Local 225 would "be out to talk" to the
employees because the employees did not "know anything anyway." Scharf
replied that someone from the Union would be out to talk to them
'Scharf explained . "Well, see , many employees don't speak any English.
We have , as you noticed here , we have some - I speak French and I am
practically the only ones we [sic] can talk to , and they had questions on
the union which they heard, so those are the people I handed the cards and
told them what they are all about and I said 'If you want to you can sign
and return it to the girl in the office,' so I must have distributed to most of
these or gave to some and they were given to the others and a lot of them
picked up the cards in the office , some of them the receptionist or other
employees distributed They were there She typed them up and they were
there."
'Scharf referred to Buckner as a "floating porter." Porters were engaged
in mopping floors, washing bathrooms , bathtubs , and walls, and cleaning
in general. Porters, together with maids , were assigned to the housekeeping
department Buckner spent about 6-1/2 hours out of a day's work engaged
in porters' duties, when other porters were absent , he filled in for them.
Other porters were assigned to one of the five sections of the Employer's
premises . Buckner had no such assignment . Buckner' s wage was higher
than that of other porters
Additionally Buckner gave supplies to all the maids and porters for the
Third: Some time in the forepart of May, Neider again
visited Scharf, at which time he presented Scharf with
approximately 35 union authorization cards which he had
picked up from the "office girl." Attached to each was an
authorization for the deduction of "such amounts
including initiation fees and dues" from the employee's
wages "as may be established by the Union." Scharf had
already viewed the cards. In fact he had counted the
cards, checked the payroll, and verified the signatures
thereon with the W-2 forms in the Respondent's
possession . He was aware that out of a unit of 45 or 50
employees, the 35 card signers constituted a majority.
Neider, claiming that he represented "a majority of
full-time non-professional employees," demanded
recognition for Local 225. Neider noted that there were
"two ways that this thing could go"; one was "to go to
election" and the other one was "to sit down and
recognize" the Union. Scharf "saw no point in going to
election." Thus he "decided to recognize" it.
Thereafter, in the "second half" of May, Scharf met
with Neider at the office of the Respondent's attorney in
New York City, together with Respondent's attorney
Burnstein, and the Union's secretary-treasurer. Neider
presented the Respondent with a contract and negotiations
commenced. Certain modifications favorable to the
Respondent were negotiated and the contract was settled
after about 5 hours of discussion. However, it was not
executed at such time because Neider had "to go back to
his people to see whether the contract [was] agreeable."
Neider commented that "he would take the contract with
him, have it retyped, corrected and [he would] go up and
talk to his people and [he would] be in touch with [Scharf]
if it's acceptable."
On the next Monday Neider met with the committee at
which time he gave them the contract to read. The
committee "went over" the contract and asked questions.
They were " satisfied" with the contract. Neider called
Scharf and informed him that they were ready to sign the
contract. The committee was never shown a copy of the
Union's original proposals. Employee signers of the
contract were Anthony Cuomo, Eugene Buckner, Carolyn
Garrison, and Edward L. Griff]n."
The contract provided for sick leave, holiday pay,
mourning time, and overtime pay after 45 hours, none of
which had been previously enjoyed by the employees. It
also included increased wages and vacations . The contract
further provided that the Employer recognize the Union
as "the sole collective bargaining Agent for all full-time
employees in its employ, excluding executives,
day and at the end of the day he gathered the supplies or gave out supplies
for the next day. Together with Scharf he made inspections of the five
sections to determine what was to be done for the next day . According to
Scharf a typical statement made to Buckner during such an inspection was
"Tomorrow , Eugene, when you give out your supplies you ask certain
employees to wash - " Employee Buckley , a maid , referred to Buckner as
her boss to whom she reported and who told her what to do Employee
Martha Grant , a maid, also referred to Buckner as her foreman. She
testified that Scharf had told her before she went to work that Buckner
"would be [her ] boss" She testified that if she wanted to leave early she
asked permission of Buckner , and that if she had trouble on her job she
contacted him. She also said that in the event of illness she notified
Buckner.
"After notification by Scharf , Griffin , a chef, appeared for the signing of
the contract . Sometime after he signed the contract Griffin executed a
union authorization card. Upon the request of Scharf , he solicited several
union card signers Scharf told Griffin that there were "some people that
he wanted [to sign] before they went home." As instructed by Scharf,
Griffin told the employees that it was "important for them to sign" the
card and "get it back to the office as soon as possible "
PROSPECT GARDENS OF NORWALK, INC.
administrators and office employees."
The contract contained a union -security clause as
follows:
All full-time employees , shall, as a condition of
continued employment , become and remain members of
the Union in good standing after they have completed
thirty (30) days of employment or thirty (30) days after
execution of this Agreement , whichever is later,
provided , however , that no employee shall be removed
from his employment under this paragraph so long as
he continues to tender uniform dues and initiation fees
to the Union after such thirty (30) day period. Any
employee who fails to maintain his membership to the
extent of not paying uniform dues and initiation fees
after such thirty (30) day period , shall be discharged by
the Employer one week after notification from the
Union in person or in writing , unless such employee
pays such dues and initiation fees within such seven (7)
days.
Aditionally the contract included a checkoff article
providing that upon the employee ' s written assignment the
"Employer shall deduct uniform membership dues and
initiation fees from the employees ' salaries , and make
such deductions from the first payroll in each month."
Pursuant to the checkoff provision and the employees'
written assignments the Respondent deducted sums of
money for Local 225 dues from the wages of employees
who had executed such assignments . The Respondent also
deducted money for Local 225 dues from the wages of
some employees who had not executed written
assignments for such purpose.
Fourth : Local 225 was a favored union with whom the
Respondent joined hands in order to achieve a majority
status for Local 225 and bring it "into Prospect Gardens."
Toward this end the Respondent allowed Local 225's
president free access to its premises, participated in the
distribution of union authorization cards to its employees
during working hours, and encouraged its employees to
apply for membership in Local 225 , designate it as their
bargaining representative , and execute dues-checkoff
authorizations for it." Twenty-four of the executed cards
which were relied on by Local 225 to support its
bargaining demands contained information typed thereon
by Respondent ; i.e., name, date , address , place of
employment , department employed , rate of pay, and
social security number . Many of these cards were handed
to the employees with the typed material already
appearing on the card.
The Act contemplates that the employees, in the
selection of their bargaining representative , shall have
"complete and unfettered freedom of choice," N.L.R.B. v.
Link-Belt Company, 311 U.S. 584 , 588. N. L.R.B. v.
Keller Ladders Southern , Inc., 405 F.2d 663 (C.A. 5).
This right of "complete and unfettered freedom of choice"
springs from ". . a clear legislative policy to free the
collective bargaining process from all taint of an
employer ' s compulsion , domination , or influence."
International Association of Machinists , Tool and Die
Makers Lodge No. 35 (Serrick Corp.] v. N.L. R.B., 311
U.S. 72. The collective-bargaining process which was
initiated here was contaminated by the Employer ' s efforts
in promoting , fostering , and supporting both its own
"The cards which the Respondent proffered to its employees contained a
dues-checkoff authorization and this language , "I hereby apply for
membership in the Industrial Workers of Allied Trades Local 225 Aff
N.F I U , and authorize and designate this Union to represent me for
collective bargaining with my employer."
139
aspirations for a union of its choice and the organizational
objectives of Local 225. The Union recognized by the
Respondent was a union chosen by the Respondent rather
than a union designated by its employees as their
uncoerced choice for a bargaining representative.
"The participation of management and employees in
the solicitation of signed cards on company time and
property, deprived the authorizations of voluntariness,
which the law requires." Hughes and Hatcher, Inc. v.
N.L.R.B., 393 F.2d 557 (C.A. 6). By its assistance and
support of Local 225 as above detailed the Respondent
violated Section 8(a)(1) and (2) of the Act.12
Fifth: It is well settled that union designation cards
obtained, as here, with the direct and open assistance of a
management representative are invalid for the purpose of
establishing a union 's majority. A. T. I. Warehouse, Inc.,
169 NLRB No. 75; see also Insular Chemical
Corporation, 128 NLRB 93, 98, 99. In that there is no
credible proof that Local 225 possessed any cards which
were not tainted by the Respondent's unlawful acts when
it made its demand for recognition, Local 225 could not
have been, at such time, lawfully designated as the
collective-bargaining representative of the majority of the
employees in any appropriate unit. Hence, its claim of
majority status was erroneous. Under these circumstances
the Respondent's recognition of Local 225 was of a
minority union and unlawful. The Supreme Court has said
in International Ladies' Garment Workers' Union,
AFL-CIO [Bernhard-Altmann Texas Corp.] v. N.L.R.B.,
366 U.S. 731, that "[t]here could be no clearer
abridgement of Sec. 7 of the Act, assuring employees the
right `to bargain collectively through representatives of
their own choosing' or `to refrain from' such activity"
than where an employer has "granted exclusive bargaining
status to an agency selected by a minority of its
employees, thereby impressing that agent upon the
nonconsenting majority." The Supreme Court further
opines that "Section 8(a)(2) of the Act makes it an unfair
labor practice for an employer to `contribute ... support'
to a labor organization. The law has long been settled that
a grant of exclusive recognition to a minority union
constitutes unlawful support in violation of that section,
because the union so favored is given `a marked advantage
over any other in securing the adherence of employees.' "
Accordingly, by recognizing and entering into a
collective-bargaining agreement with Local 225, a
minority Union, the Respondent aided and contributed
assistance and support to Local 225 in violation of Section
8(a)(1) and (2) of the Act and thereby violated Section
8(a)(1) and (2) of the Act.
Sixth: A contract which is obtained under an erroneous
claim of majority representation must fail in its entirety.
International Ladies ' Garment Workers ' Union,
AFL-CIO v. N.L.R.B., supra. Thus the limitations on
union activity, as well as the right to refrain from union
activity, imposed by the maintenance of membership
provisions of the contract, and the support to Local 225
provided thereby, are at odds with the requirements of
Section 8(a)(1), (2), and (3) of the Act. By reason of the
execution and maintenance of such provisions the
Respondent violated Section 8(a)(1), (2), and (3) of the
Act. Fiore Brothers Oil Co., Inc., 137 NLRB 191, 208,
"Sec. 8(aX2) of the Act provides , "It shall be an unfair labor practice
for an employer - to dominate or interfere with the formation or
administration of any labor organization or contribute financial or other
support to it. . " See also N.L.R.B v. Fiore Brothers Oil Co. Inc, 317
F.2d 710 (C A. 2).
140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
enfd . N.L.R.B. v. Fiore Brothers Oil Co., supra. Mr.
Wicke Ltd. Co., 172 NLRB No. 181; Carlson Furniture
Industries , Inc., 153 NLRB 162.
Furthermore the Respondent' s honoring of the
dues-checkoff authorizations obtained by the Respondent's
unlawful assistance and its deduction of dues pursuant to
a contract executed with a minority union constituted a
contribution of support to Local 225 and thereby the
Respondent violated Section 8(a)(2) of the Act. Further,
the deduction of union dues from employees' wages
without the employees' authorizations constituted financial
assistance within the meaning of Section 8(a)(2) of the Act
and discrimination within the meaning of 8(a )(3) of the
Act. See Lunardi-Central Distributing Co., Inc., 161
NLRB 1443, 1445, 1451. By such misconduct the
Respondent violated Section 8 (a)(2) and (3) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with its operations
described in section I, above, have a close , intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor
disputes burdening and obstructing commerce and the free
flow of commerce.
V. RECOMMENDED REMEDY
Since the Respondent has engaged in unfair labor
practices, I recommend that the Respondent cease and
desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act and restore
as nearly as possible the conditions which existed prior to
commission of the unfair labor practices.
I have found that the Respondent rendered and is
rendering unlawful assistance and support to Local 225,
Industrial Workers of Allied Trades , and thereby engaged
in and is engaging in unfair labor practices affecting
commerce within the meaning of Section 8(a)(2) of the
Act. In order to remedy this unlawful condition I
recommend that the Respondent withdraw all recognition
from Local 225 as an organization representative of the
Respondent's employees for the purpose of collective
bargaining in respect to rates of pay, wages, hours of
employment, and other conditions of employment. I have
further found that limitations imposed by the contract
executed with a minority union interfered with , restrained,
and coerced the Respondent ' s employees in the exercise of
their rights to self-organization and collective bargaining
and were executed and placed in effect in violation of the
provisions of the Act. Such contract, therefore, is
necessarily null and void and has no effect as contrary to
the provisions of the Act. Thus the contract, the fruit of
the Respondent's unfair labor practices, is a continuing
means of thwarting the policies of the Act. Cf. National
Licorice Company v . N.L.R.B., 309 U.S. 350.
I recommend that the Respondent must cease to give
effect to the contract.
In that dues deductions were in violation of the Act's
express requirements and were induced , obtained, and
retained in violation of the Act and, in order that the
status quo ante may be effected , I recommend that the
Respondent be required to restore to all employees whose
dues were deducted from their wages under the contract
or otherwise the amount of the dues deducted together
with interest at the rate of 6 percent per annum from the
date of the deductions until fully paid.
Citing Purolator Products, Inc., 160 NLRB 80, Local
1199 urges that I recommend that the Board order an
immediate representation election. The following language
from such case is controlling here.
As Respondent , by its unfair labor practices detailed
herein , has arrogated to itself the selection of a
bargaining representative for its Newbury Park
employees and has denied such employees a voice in the
matter, we shall , in addition to the usual provisions
requiring Respondent to cease recognizing the
Association as such representative, provide for a
remedial election , pursuant to Section 10(c) of the Act,
in order to resolve the question concerning
representation that exists at Newbury Park. To insure
that the effects of Respondent' s unfair labor practices
are fully dissipated and that all parties to the election
will have full and equal opportunity to inform all
eligible voters of the issues involved, thereby enabling
the employees to make a free and reasoned choice, we
shall apply the rule of Excelsior Underwear, Inc., 156
NLRB 1236, relating to the furnishing of eligibility lists
to the remedial election directed herein.
For the same reason I recommend that a remedial
election be ordered." The rule in Excelsior Underwear,
Inc., supra , shall be adhered to.
The recommended election shall be conducted among
employees in the following unit, which I find upon the
entire record to be appropriate for purposes of collective
bargaining within the meaning of Section 9(b) of the Act.
All employees employed by Prospect Gardens of
Norwalk, Inc., at its Norwalk, Connecticut,
establishment , including regular part-time employees, but
excluding all licensed registered and practical nurses,
office clerical employees, professional and technical
employees , executives and administrators , guards, and
supervisors as defined in the Act."
It is further recommended that the Board order the
Regional Director , Region 2, to direct and supervise the
conduct of an election (1) when compliance with the
Recommended 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 Respondent fail to comply with the
Recommended Order and further proceedings are
necessary , upon the full compliance with any subsequent
order or decree; or (3) in the event of noncompliance, at
such time as Local 1199, or any other union (first having
satisfied the employee interest requirements of the Board,
see Statements of Procedure Section 101.18) indicates that
it is, nevertheless , willing to proceed to an election.
In the election the employees shall determine whether
they wish to be represented for collective-bargaining
"The General Counsel complains that to recommend an election in this
case is to deny Respondent's employees "the right to have a labor
organization of their own choice represent them on the basis of a voluntary
grant of recognition ." A purpose of the remedy in this case is to assure a
complete and unfettered freedom of choice for employees . To encourage a
voluntary grant of recognition would involve the unnecessary risk of
exposing employees to the same abuses which gave rise to this action.
Thus, in the light of the record here, an election, with its safeguards, as an
alternate, is a more reliable means of guarding the employees ' complete
and unfettered choice of bargaining representative and will to some extent
foreclose a repetition of the Respondent ' s misconduct.
"Except for the inclusion of regular part-time employees , which the
Board normally includes in the appropriate unit (H W. Elson Bottling
Co., 155 NLRB 714, 724), the above unit is the unit described in the
contract. Scharf testified that licensed registered and practical nurses had
been excluded from the contract 's coverage.
PROSPECT GARDENS OF NORWALK, INC. 141
purposes by Local 1199, Drug & Hospital Employees
Union, RWDSU, AFL-CIO; by Local 225, Industrial
Workers of Allied Trades; or by neither.
Either union, upon timely request, may withdraw from
participation in the election. Other unions, which the
Regional Director finds satisfy the Board's requirements
for participation in the election, may intervene and also
appear on the ballot.
CONCLUSIONS OF LAW
1. Local 1199, Drug & Hospital Employees Union,
RWDSU, AFL-CIO, and Local 225, Industrial Workers
of Allied Trades are labor organizations within the
meaning of Section 2(5) of the Act.
2. The Respondent is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act and it will effectuate the purposes of the Act for
the Board to exercise jurisdiction herein.
3. By interfering with, restraining, and coercing
employees in the exercise of rights guaranteed them by
Section 7 of the Act, Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(1) of
the Act.
4. By recognizing Local 225, a minority union, as the
sole collective-bargaining agent for employees in its
employ and otherwise supporting and assisting Local 225
by allowing Local 225's president free access to its
premises, by participating in the distribution of union
authorization cards to its employees during working
hours, and by encouraging its employees to apply for
membership in Local 225, designate it as their bargaining
representative, and execute a dues-checkoff authorization
for it, the Respondent engaged in unfair labor practices
within the meaning of Section 8(a)(2) and (1) of the Act.
5. By entering into a collective-bargaining agreement
with Local 225, a minority union, containing a provision
requiring membership in Local 225, and by deducting
sums of money from the wages of its employees for union
dues to Local 225 pursuant to the union-security provision
of the agreement or pursuant to dues deduction
authorization cards unlawfully obtained, and by making
dues deductions to Local 225 for various employees
without dues deduction authorization from such
employees, Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(1), (2), and
(3) of the Act.
6. All employees employed by Prospect Gardens of
Norwalk, Inc., at its Norwalk, Connecticut,
establishment, including all regular part-time employees,
but excluding licensed registered and practical nurses,
office clerical employees, professional and technical
employees, executives and administrators, guards, and
supervisors as defined in the Act constitute an appropriate
unit for the purpose of collective bargaining within the
meaning of Section 9(b) of the Act.
7. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law and the entire record in this case, it is
recommended that the Respondent, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Rendering unlawful assistance and support to Local
225 or any other labor organization.
(b) Recognizing Local 225 as the representative of any
of its employees for the purpose of collective bargaining
concerning grievances, rates of pay, wages, hours of
employment, or other conditions of employment.
(c) Giving effect to the contract between the
Respondent and Local 225 dated June 1, 1968, or to any
modification, extension, renewal, or supplement thereto.
(d) In any like or similar manner interfering with,
restraining , or coercing its employees in the exercise of
their rights to self-organization to form labor
organizations, to join or assist any labor organization, to
bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or
protection or to refrain from any or all such activities.
2. Take the following affirmative action which is found
will effectuate the policies of the Act:
(a) Withdraw and withhold recognition from Local 225
as representative of any of its employees for the purpose
of collective bargaining with the Respondent concerning
grievances , labor disputes, rates of pay, wages, hours of
employment, or other conditions of employment and
inform Local 225 and each of its employees that the
contract between Local 225 and Respondent has been
found to constitute a violation of the National Labor
Relations Act, as amended, and that the Respondent is
therefore obligated to discontinue such contract as a term
or condition of employment and that the employees are
released from its obligations and that the Respondent will
no longer demand its performance.
(b) Reimburse each of its present or former employees
for the amount of money deducted from their wages as
dues or initiation fees for Local 225 with interest at the
rate of 6 percent, commencing from the date of each
deduction and continuing until full reimbursement is
made.
(c) Post at its Norwalk, Connecticut, establishment
copies of the attached notice marked "Appendix.""
Copies of said notice, on forms provided by the Regional
Director for Region 2, after being duly signed by the
Respondent's representatives, shall be posted by it
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, 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.
(d) Notify the Regional Director for Region 2, in
writing , within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith."
IT IS FURTHER RECOMMENDED that the complaint be
dismissed insofar as it alleges violations of the Act other
than found in this Decision.
"In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice . In the further
event that the Board 's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of
Appeals Enforcing an Order " shall be substituted for the words "a
Decision and Order."
"In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read . "Notify said Regional Director, in
writing, within 10 days from the date of this Order, what steps Respondent
has taken to comply herewith."
142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL EMPLOYEES
THIS NOTICE IS POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
A Trial Examiner for the National Labor Relations
Board has found that we have violated the National Labor
Relations Act, as amended , among other things by
recognizing and bargaining collectively with Local 225,
Industrial Workers of Allied Trades and executing a
contract with it dated June 1, 1968, and by unlawfully
assisting and supporting Local 225.
The Trial Examiner has further found that our
employees shall be released from the obligations of the
contract and that we may no longer demand its
performance from our employees or deduct any dues for
Local 225.
WE WILL therefore immediately withdraw all
recognition from Local 225 and discontinue the
contract as a binding obligation upon our employees.
WE WILL also reimburse our employees for any
moneys which we have deducted as dues from their
wages for Local 225.
The Act gives all employees these rights:
To engage in self-organization
To form , help, or join unions
To bargain collectively through a representative of
their own choosing
To act together for collective bargaining or other
mutual aid or protection and
To refrain from any or all of these things
Accordingly, we give you these assurances:
WE WILL NOT do anything that interferes with the
rights listed above.
WE WILL NOT assist or support Local 225, Industrial
Workers of Allied Trades.
WE WILL NOT try to persuade you i n any way to
support one union rather than another.
WE WILL NOT ask you to join or assist any union.
WE WILL NOT assist or interfere with any labor
organization which you may choose as your
collective-bargaining representative.
All of you are free to become or remain or refrain from
becoming or remaining members of any labor
organization.
Dated By
PROSPECT GARDENS OF
NORWALK, INC.
(Employer)
(Representative) (Title)
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.
If employees have any question concerning this notice
or compliance with its porvisions, they may communicate
directly with the Board 's Regional Office, 36th Floor,
Federal Building , 26 Federal Plaza , New York, New York
10007, Telephone 212-264-0306.