Queens-Nassau Nursing Home

National Labor Relations Board - Board Decisions

Jun 30, 1975

218 N.L.R.B. 1213 (N.L.R.B. 1975)

QUEENS-NASSAU NURSING HOME 1213
Cycle Cleaning Corp. and Maurice Gershman d/b/a
Queens-Nassau Nursing Home , Joint Employers
and Local 1115 , Joint Board, Nursing Home and
Hospital Employees Division
Cycle Cleaning Corp . and Maurice Gershman d/b/a
Queens-Nassau Nursing Home , Joint Employers
and Local 144, Hotel, Hospital, Nursing Home and
Allied Health Services Union affiliated with
Service Employees International Union, AFL-
CIO, Petitioner. Cases 29-CA-39241 and 29-RC-
26592
June 30, 1975
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
On March 31, 1975, Administrative Law Judge
Eugene E . Dixon issued the attached Decision in this
proceeding. Thereafter, the General Counsel and
Respondent Maurice Gershman d/b/a Queens-Nas-
sau Nursing Home filed exceptions and supporting
briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, fmd-
ings ,3 and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent Cycle Cleaning
Corp., New York, New York, its officers, agents,
successors, and assigns, and Respondent Maurice
Gershran d/b/a Queens-Nassau Nursing Home,
New York, New York, his agents, successors, and
assigns, shall take the action set forth in the said
recommended Order, except that the attached notice
is substituted for that of the Administrative Law
Judge in conformity with his Erratum.
i Local 144, Hotel , Hospital , Nursing Home and Allied Health Services
Union affiliated with Service Employees International Union, AFL-CIO,
was Party in Interest in this proceeding.
2 On March 31, 1975, Case 29-RC-2659 was severed from Case 29-CA-
3924 and remanded to the Regional Director for Region 29 for further
proceeding pursuant to an agreement for consent election.
218 NI RB No. 183
3 We note the following inadvertent errors in the Administrative Law
Judge's Decision which do not affect his conclusions or our adoption
thereof:
The nursing home's administrator , Krakowski , rather than Klein,
testified that representatives of Local 4 were ordered from the premises of
the nursing home because of their loud and foul language. The office of
Region 29 is located in Brooklyn , New York, rather than Milwaukee,
Wisconsin
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage membership in Local
1115, Joint Board, Nursing Home and Hospital
Employees Division or in Local 144, Hotel,
Hospital , Nursing Home and Allied Health
Services Union affiliated with Service Employees
International Union, AFL-CIO, or any other
union , by discharging or otherwise discriminating
against any of our employees because of union
considerations.
WE WILL NOT contribute assistance or support
to Local 144 in its solicitation of union member-
ship among our employees.
WE WILL NOT in any other manner interfere
with , restrain, or coerce our employees in the
exercise of their rights to self-organization, to join
or assist Local 144 or Local 1115 or to form, join,
or assist any other labor organization, to bargain
collectively concerning terms or conditions of
employment through representatives of their own
choosing , to engage in concerted activities for the
purpose of collective bargaining or other mutual
aid or protection , or to refrain from engaging in
any such activity , except as these rights might be
affected by a contract validly made under the
National Labor Relations Act with a labor
organization , whereby membership in the labor
organization is a condition of employment after
30,days following the date of the contract or the
beginning of the individual's' employment,
'whichever is later.
WE WILL offer to Robert Ortiz immediate and
full reinstatement to his former position or, if
such position no longer exists , to a substantially
equivalent position without prejudice to his
seniority or other rights and privileges , and make
him whole for any loss of earnings or other
economic loss suffered by him as a result of our
discrimination against him.
All our employees are free to become or remain, or
refrain from becoming or remaining, members in any
labor organization.
1214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CYCLE CLEANING CORP.
MAURICE GERSHMAN
D/B/A QUEENS-NASSAU
NURSING HOME
DECISION
STATEMENT OF THE CASE
EUGENE E. DIXON, Administrative Law Judge: This
proceeding, brought under Section 10(b) of the National
Labor Relations Act as amended (61 Stat. 136), herein
called the Act, was heard at Brooklyn, New York,
December 11-13, 1974. The complaint, dated October 4,
1974, was based on duly served charges filed by Local
1115, Joint Board, Nursing Home and Hospital Employees
Division on July 8, 1974, and was issued by the acting
Regional Director for Region 29 of the National Labor
Relations Board on behalf of its General Counsel, herein
called the Board and the General Counsel.
The Complaint alleges that Respondents had engaged in
and were engaging in unfair labor practices in violation of
Section 8(a)(1), (2), and (3) of the Act.
In their duly filed answers Respondents denied the
commission of any unfair labor practices.
The alleged unfair labor practices also form the basis for
objections filed by Local 1115 to conduct affecting the
results of an election conducted on June 12, 1974, in which
Local 1115 was rejected as collective-bargaining agent of
the employees in favor of Local 144, Hotel, Hospital,
Nursing Home and Allied Health Services Union affiliated
with Service Employees International Union, AFL-CIO.
Upon the entire record and from my observation of the
witnesses, I make the following:
FINDINGS OF FACT
1. RESPONDENTS' BUSINESSES
Maurice Gershman , an individual, is, and has been at all
times material , an individual proprietor doing business
under the trade name and style of Queens-Nassau Nursing
Home (herein called Home). At all times material
Respondent Home has maintained its principal office and
place of business at 520 Beach 19th Street , County of
Queens, in the city and State of New York, where it is and
has been at all times material continuously engaged in
operating a nursing home and performing related services.
During the year preceding issuance of the complaint,
which is representative of its annual operations generally,
Respondent Home in the course and conduct of its
operations derived gross revenues therefrom in excess of
$100,000.
During the same representative period of time Respon-
dent Home, in the course and conduct of its business,
purchased and caused to be transported and delivered to
its place of business food products and other goods and
materials valued in excess of $20,000, which were trans-
ported and delivered to its place of business in interstate
commerce directly from States of the United States other
than the State in which it is located.
Respondent Cycle Cleaning Corp. (herein called Cycle)
at all times material has been a corporation duly organized
under and existing by virtue of the laws of the State of New
York. At all times material Respondent Cycle has
maintained its principal office and place of business at
7730 164th Street, in the County of Queens, in the city and
State of New York, where it is and has been at all times
material continuously engaged in providing housekeeping
and porter services and related services for various nursing
homes located in the city and State of New York, During
1974, which year is representative of its annual operations
generally, Respondent Cycle in the course and conduct of
its business operations performed services valued in excess
of $50,000 for Respondent Home. Respondent Home and
Respondent Cycle each, at all times material, have been
Employers engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION
Local 1115, Joint Board, Nursing Home and Hospital
Employees Division and Local 144, Hotel, Hospital,
Nursing Home and Allied Health Services Union affiliated
with Service Employees International Union, AFL--CIO, at
all times material has been a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background and Issues
Prior to October 30, 1973, Respondent Home's house-
keeping department performed its own cleaning and
maintenance duties largely with its own employees. On
October 30, Home entered into a contract with Cycle
under which the latter for a fixed fee agreed to perform "all
such duties as would be performed" by Home's housekeep-
ing department. To accomplish this Cycle agreed to furnish
porters and maids and its own supervision.'
On May 16, 1974, Local 144 filed a representation
petition (Case 29-RC-2659) seeking certification as exclu-
sive bargaining agent of a unit consisting of nonprofession-
al employees, including nurses, aides and orderlies, em-
ployed by the Home and housekeeping employees,
including porters, employed by Cycle. On May 21 a
consent election agreement was entered into - the election
to be held on June 12 and to include on the ballot an
intervening union, Local 1115, Joint Board, Nursing Home
and Hospital Employees Division. Although not included
on the ballot two other unions (a Local 1119 , and a
Teamsters Local No. 4) also made some attempts during
the ensuing campaign to solicit the employees' support.
On June 12 the election took place in which Loral 1115
received only eight votes out of a total of 75. On June 17
Local 1115 filed objections to the election and on July 8
filed unfair labor practice charges resulting in the issuance
of a complaint. On October 31 the Regional Director
issued a report on the objections (recommending a hearing
I This supervision was comprised of a series of so-called housekeepers
who were assigned by Cycle full time to the Home and by periodic visits of
an area supervisor, Esther Watkins.
QUEENS-NASSAU NURSING HOME 1215
on them) and an order consolidating the complaint case
and the objections matter and a notice of hearing thereon.
In substance the main issues in the cases (the objections
being merged in the allegations of the complaint) are: 1.
Whether Respondents Home and Cycle are joint employ-
ers within the meaning of the Act. 2. Whether Respondents
assisted Local 144 in violation of Section 8(a)(2) of the Act.
3. Whether Respondents discharged Robert Ortiz because
of his activity on behalf of Local 11152 in violation of
Section 8(aX3). 4. Whether Respondents, by the above
conduct plus some other specified acts , interfered with,
restrained, and coerced employees in violation of Section
8(a)(1).
B. The Joint Employer Question
There is no common ownership between Home and
Cycle. None of the officers, directors, or stockholders of
Cycle have any interest or hold any office in Home. The
accounting system -employed by Home is not in any way
utilized jointly `or in conjunction with Cycle. No profit-
sharing, insurance, or other compensation plans are offered
by Home or Cycle employees. Cycle and Home maintain
their own independent offices geographically removed
from one another.
By and large Cycle hires its porters and maids without
any consultation with Home.3 Also without consultation it
draws up work schedules for its porters and maids;
determines on what shifts and which days each of the
various employees is to work; and what employees are to
work on holidays or to work overtime. Discipline of the
porters and maids is dispensed only by Cycle.
Once a week Cycle picks up the timecards of its
employees from which to compute its payroll. Cycle and
Home each prepares its own job descriptions. As for the
duties of the employees of Cycle and Home being
interchangeable Watkins testified that "In case of emergen-
cy ... no one . . is held to job descriptions," and went
on to explain, "Now, by `emergency,' I don't mean that the
roof is falling down but perhaps someone has not shown up
for a job or ... they have an empty slot and they have to
get something done."
Regardless what interpretation is given to ,the term
"emergency" the evidence shows that not only is there a
great deal of interchange of the porters' own duties with
those of the Home,4 but the porters are subject to the joint
control and supervision of Cycle and the Home. Thus,
when Cycle took over the housekeeping, porter Robert
Ortiz was told by Lebowitz that henceforth he would be
paid by Cycle and that if the porters had any problems in
the future they should come to him or to Cycle Supervisor
Watkins. Ortiz also testified credibly that when he was
head porter, before he could call in a replacement for an
absent porter or before he could take time off himself he
2 Another alleged discrimmatee, Juan Cmtron, failed to appear at the
hearing 'and charges involving him were dismissed at the General Counsel's
request. -
3 Nonetheless, in - the case of Ortiz, as will be seen, Assistant Adnumstra-
tor Morris Lebowitz of Home played a significant part in his retention and
promotion by Cycle.
4 Regularly porters have been ordered by Administrator Lebowitz and
had to get permission either from Assistant Administrator
Lebowitz or from Watkins.
The evidence also shows that nonemergency overtime for
porters and maids must have prior approval of Home
management. On one occasion the refusal of one of the
porters to accept an order from Lebowitz gave rise to a
meeting of the porters called by Watkins who wanted to
'find out who it was that was under the impression the
porters were not supposed to take orders from Lebowitz.
Thereafter Lebowitz' orders were obeyed.
The contract provides for Cycle to perform all the
housekeeping duties and specifies that "the housekeeping
department will operate as part of the nursing home staff."
The contract also specifies in detail the cleaning services
required and how they are to be accomplished. The
contract specifically reserves to the Home the furnishing of
all materials and supplies necessary for the cleaning
services. With regard to - the hiring of all personnel and
supervision for the housekeeping department the contract
provides that "all changes will be made only after
discussion and mutual agreement with the nursing home
'administration." The contract also sets forth in detail the
wage rates and fringe benefit costs to the employees in
question.
Officials of the Home exercise considerable authority in
connection with the hiring of Cycle's housekeepers. Thus
all housekeeper prospects are interviewed by Lebowitz and
the Home's Administrator, Al Krakowski, prior to hiring
and -their salaries are subject to Home's approval. In fact,
housekeeper Ephraim Klein, was hired by Lebowitz and it
was only after he was hired that Klein was spoken to by
Watkins so she "could explain his duties and responsibili-
ties." It also appears that Home plays an important role in
the discharge of the housekeepers. Thus Klein was
discharged only after consultation with the Home; and
Mintz, another housekeeper, was discharged on complaint
by the Home. Another housekeeper, Workman, was
transferred after complaints by Home.
Respondent Cycle admits that the Respondents are joint
employers of the porters and maids engaged in the
common operation of the housekeeping department of the
Home. Respondent Home, however, denies this allegation
in its answer and insists as an affirmative defense that
Respondent Cycle is an independent contractor providing
cleaning and related services to Home pursuant to a
contract, and provides its own employees over whom it
exercises sole authority and control. Notwithstanding this
contention it appears that in the agreement for consent
election signed by both Respondents in Case 29-RC-2659,
Home agreed to a unit that included "porters and maids
employed jointly by Cycle Cleaning Corp. and Queens-
Nassau Nursing Home."
In my opinion the foregoing facts reveal sufficient right
of control by Home over the Cycle employees to qualify
Home as a joint employer with Cycle. I so find. The
by Supervisor Watkins to do jobs such as unloading trucks, going to the
laundry, storing supplies, painting, putting in light bulbs, plumbing,
assisting in the kitchen , moving beds with aides, carrying luggage for
patients, fixing appliances , moving sprinklers , and assisting maintenance
employees with their many duties, none of all the foregoing being part of
their regular duties as porters.
1216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Greyhound Corporation (Southern Greyhound Lines Division)
and Floors, Inc., of Florida, 153 NLRB 1488 (1965); West
Texas Utilities Company, 108 NLRB 407 (1954); Austin
Company, 101 NLRB 1257 (1952).
C. Assistance
Several witnesses for the General Counsel testified
credibly about seeing Local 144 representatives in the
Home repeatedly. On some occasions they were active in
various parts of the Home soliciting employees on behalf
of the Union and on other occasions fraternizing with
supervisory personnel. Thus, Faye Winkler, receptionist,
testified that in May and June she saw Local 144
representative, Virginia Allen in the Home about a half
dozen times. Rita Freston, director of nursing, testified that
at the end of May she saw Allen having coffee with
Supervisors, Mary McNab and Ardis Watson. She also saw
Local 144 Representative Goodman making a telephone
call from the pay phone in the hall.
These things were reported to housekeeper Klein who
made no comment. McNab, a licensed practical nurse, saw
Goodman talking to one of the nurses at her station.
Morris Wilkinson, a porter, testified that during May and
June he saw Local 144 representatives Goodman and
Goodwin in the Home "at least 2 or 3 times a week ...."
On one occasion Goodman stopped and talked to him
about the Union in the first floor dining room. On another
occasion Goodman was talking to an employee at the
nurses' station on the second floor. Watson was present but
voiced no objection to Goodman.
Thomas McKethen, a porter, testified that in May or
June he saw Local 144 representatives in the lobby. As he
passed by them he was told, "Don't forget what union to
vote for, Local 144." McNab was present at the time and
voiced no objection. Daisy McQueen testified about seeing
Goodman in early June on the third floor handing out
leaflets . McQueen had been backing - another union, a
Local 1199, and her active solicitation for it on all five
floors and in, the dining room was known to management
but not prohibited or, interfered with in any way. In
addition to Local 144, Local 1115 and the Union being
backed by McQueen, another union, a Local 4 of the
Teamsters, was also interested in the Home and its
representatives were seen by McNab in the Home several
times handing out literature .5 McNab even signed one of
their cards.
Local 144 Representative Allen testified (reluctantly)
about being at the Home on June 5, 1974, talking to
employees about joining the Union. She also admitted
being at the Home on June 8 to talk to the employees
5 In December ,1973, according to Wilkinson 's testimony, the business
agent for Local 4 while attempting to talk to employees in the dining room
was ordered to leave the premises by a couple of the registered nurses The
reason for the expulsion as explained by Klein in his testimony was because
of the loud and foul language the business agent had used in an argument
that had developed between him and the nurses.
6 According to Watkins' testiniony, when a question was directed to a
union representative at the meeting he stated, "I'll let Miss Watkins answer
that question ... you all know her." -
7 Wilkinson testified that early in 1974 Watkins told him that the
employees "automatically ... belonged to 144." They had been talking
about attending a meeting to be held on June 10 at a bar
across the street' from the Home.
About this meeting, Wilkinson testified: For a week and
a half there was a "sign" in the dining room "like a poster"
announcing a meeting to beheld by Local 144 at 3 p.m. -
an hour before the end of the day shift. Wilkinson asked
the housekeeper (Mintz or Klein) if he could attend. The
housekeeper said he would have to get permission from
Esther Watkins. Watkins said that it was "okay" as long as
he punched out. Present at the meeting besides Union
Representatives Allen and Goodman were some nurses
aides, porters, and Supervisor Watkins herself. Allen,
according to Wilkinson, in a manner of speaking intro-
duced Watkins and said that "as far as the porters were
concerned, Miss Watkins would tell (them) about that
...." Someone said he heard that "Cycle was automat-
ically 144."7 Allen said that Watkins would explain
"because Cycle was entirely different than the Home."
In my opinion Watkins' attendance at and participation
in the Local 144 meeting of the employees, particularly in
the light of the free run 144s organizers had of the Home
and in 'view of Watkins' statement to Wilkinson that the
employees "automatically" belonged to Local 144, was a
clear signal to the employees that management approved
of and was backing 144 as the employees' bargaining
representative and constituted illegal assistance to Local
144 in violation of Section 8(a)(2). I so find.8 I also find
that this conduct is sufficient to require that the election in
Case 29-RC-2659 be set aside.
D. Discrimination
Robert Ortiz was hired as a porter in July 1973 by Morris
Lebowitz, then housekeeper at the Home. In October Ortiz
talked to Local 1115 Representative Morales at which time
he received a supply of authorization cards which he
proceeded to pass out to .employees during breaks, lunch,,
and after work. According to the testimony of Ortiz, in
October he talked to Morales 4 or 5 times outside the
Home or on the telephone from his home. On one of these
occasions as he was coming into the Home with authoriza-
tion cards in his hand, Lebowitz stopped him and asked
him what he had in his hand. Ortiz said, "These are union
cards." Lebowitz asked to look at one. Ortiz handed him
one; Lebowitz looked at it and handed it back without
comment.
Ortiz testified that in September 1973 he was made head
porter and given, 'a $10 raise.9 Ortiz also testified that in
May he attended a meeting of porters called by Watkins in
the basement of the Home. According to Ortiz, at this time
about when they were going to get a union . This was undenied by Watkins;
I credit Wilkinson.
a There was disputed evidence offered to show disparate treatment by
Respondents of Local 1115 representatives in connection with the granting
of access to the Homes premises . Since such conduct if found could only
serve to accentuate an already clear cut violation of Sec. 8(a)(2), I deem it
unnecessary to dispose of it.
9 Esther Watkins, then area supervisor for Cycle, testified that it was
after Cycle took over the housekeeping for the Home that Ortiz was made
head porter . The Company records confirm that on November 25, 1973
(after Cycle took over the housekeeping), Ortiz received his raise.
QUEENS-NASSAU NURSING HOME
she told them that if they voted for Local 1115 she would
"change the whole crew around." 10 He also testified that
about 2 weeks before the election Watkins told him that if
kept "talking about the Union" she would discharge him.
At the General Counsel's prodding he added that Watkins
identified the Union as Local 1115. Watkins denied at any
time threatening or talking to any porter about Local 1115.
I credit Watkins.1'
Three days before the election, June 9, according to
Ortiz's further testimony, Watkins called him in and told
him he was being discharged. Ortiz asked why and
Watkins replied that it was because he was "a trouble-
maker because of 1115."
Watkins testified that in the beginning Ortiz was very
good but as time went on his absenteeism and tardiness (an
admitted overall problem with the porters) 12 became
serious. So serious in fact that in early January she called
the porters together to impress upon them the importance
of their prompt and uninterrupted attendance. At about
this time Watkins received a list of three employees who
were on drugs and was ordered to discharge them. Ortiz
was one of them. When confronted about the matter, Ortiz
at first denied it then revealed that he was in a methodone
therapy program. Watkins agreed to keep him on if he
would get a letter for his file to that affect. Ortiz did so.
From the second week in February Ortiz began getting
oral and written warnings regarding his attendance record.
According to Watkins' testimony in late February she
confronted Ortiz, Perez, and Wilkinson about their
attendance records. All three promised to improve. Perez
and Wilkinson did, according to Watkins, but Ortiz did
not. In the second week of March, Watkins spoke to Ortiz
again about it warning him of possible discharge. At this
time she also spoke to Lawrence Roth, president of Cycle,
about it. Roth said he would talk to Ortiz about it because
Lebowitz had recommended him so highly. Roth did talk
to Ortiz telling him, "if you keep this up, we're going to
have to let you go, we don't want to, do this you know." 13
According to Watkins' further testimony, at Lebowitz's
suggestion the two of them also talked to Ortiz. Lebowitz
told Ortiz that Watkins was going to "get rid" of him if he
did not improve and that he was asking Watkins to give
him another chance.14
In addition to his attendance record, Watkins had
another problem with Ortiz. He had a tendency to go over
the head of the housekeeper and look to Lebowitz for his
supervision and direction. On June 4, according to
Watkins' further testimony, Ortiz's card was punched in at
$ :03 a.m. but he did not arrive at work until 8:30. Watkins
10 About this meeting Watkins testified as follows:
- I had a problem there with porters punching each others ' timecards.
A porter didn't even show up sometimes and the card was punched in
and out. I, myself, although I was off on Saturdays and Sundays
occasionally I would go in, I would find a porter punched in and he
had not been there. I would stay a couple of hours. He wouldn't even
show up for the whole day.
I did have a meeting, you know, called all of them down stairs and
told them that they're not doing their friend any good by punching
them in because the next time I found if someone was punched in and
wasn't there, the guy that was punched in was going to get fired and if I
found out who punched him in, that he was going to get fired, too, a
union or not, I'll change the whole dam crew around if I have to, but
I'm not going to have this.
11217
made a note in her diary to let him go but did nothing
about it until June 9 at which tinie he was discharged.
On direct examination Watkins was asked if the
discharge had anything to do with the union election. Her
answer was "Well, eyes and no." Asked to explain , Watkins
testified as follows:
Queens-Nassau wasn 't the only nursing home shat
Cycle had or that I was in charge of. Some of the
nursing homes that we had, that we was in charge of,
had union, I know for a fact that what you put up with,
you know, an employee , this is almost like what you are
stuck with . I know that , say, number one, the type of
record that Robert Ortiz had, number one, you know,
we couldn't put up with that, we definitely couldn't put
up with that because it was causing problems with the
other people you know.
From the foregoing it is ,clear illat the triggering
motivation for Ortiz's termination was the conviction that
if he was kept on until a union (be it Local 144 or Local
1115) became the bargaining agent of the employees, it
would then be impossible to get rid , of him. A better
example of how to discourage union membership can
hardly be imagined than the discharge of employees
because of their anticipated selection of a union to
represent them. I find that the discharge of Ortiz involved
such discrimination and thus violated Section 8(a)(3) of the
Act.
CONCLUSIONS OF LAW
1. Cycle Cleaning Corp. and Maurice Gerslnnan dib/a
Queens-Nassau Nursing Home, Joint Employers, are
employers engaged in commerce within the meaning of
Section 2(2) and (6) of the Act.,
2. Local 1115, Joint Board, ]Nursing Home and
Hospital Employees Division and ,Local 144, Hotel,
Hospital, Nursing Home and Allied Health Services Union
affiliated with Service Employees International Union,
AFL-CIO, are labor organizations within the meaning of
Section 2(5) of the Act.
3. By discharging Robert Ortiz for union considera-
tions, Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(3) of the
Act.
4. By contributing assistance and support to Local 144,
Respondents have engaged in and ate engaging in unfair
ii Supporting Watkins' was the testimony of Moms Wilkinson, a portel`
called by the General Counsel, who denied that Watkins or anyone else
made any threats regarding Local 1115.
12 Watkins testified that in December Lebowid complained about the
cleanliness of the Home. She explained that due to the absenteeism and
tardiness it was difficult to "carry on a full workload" with seven supposed
to be there at work and only four or five reporting.
13 Roth corroborated this in his testimony. He also testified that starting
in January or February he had a number of conversations with Watkins
regarding the attendance of Ortiz.
14 In his statement to the Board , Lebowitz denied talking to Ortiz about
his attendance or having any knowledge of dissatisfaction with Ortiz on the
part of Cycle. I credit Watkins. I also credit Respondents ' testimony over
Ortiz's denial that he had any warning whatsoever regarding his attendance
record.
1218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
labor practices within the meaning of Section 8(a)(2) of the
Act.
5. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
Having found that Respondents have engaged in and are
engaging in certain unfair labor practices it will be
recommended that they cease and desist therefrom and
take certain affirmative action necessary to effectuate the
policies of the Act.
Having found that Robert Ortiz was discharged by
Respondents in violation of Section 8(a)(3) of the Act, it
will be recommended that they offer him full and
immediate reinstatement to his former or substantially
equivalent position, without prejudice to his seniority and
other rights and privileges, and make him whole for any
loss of earnings or other monitory loss he may have
suffered as a result of such discrimination. Any backpay
due is to be determined in accordance with the formula set
forth in F W. Woolworth Company, 98 NLRB 289 (1950),
and Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
I also, recommend that the election in Case 29-RC-2659
be set aside.
Upon the foregoing findings of fact and conclusions of
law and the entire record; and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended:
ORDER15
Respondent, Cycle Cleaning Corp. and Maurice Gersh-
man d/b/a Queens-Nassau Nursing Home, Joint Employ-
ers, New York, New York, their officers, agents, succes-
sors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in Local 1115, Joint
Board, Nursing Home and Hospital Employees Division or
in Local 144, Hotel, Hospital, Nursing Home and Allied
Health Services Union affiliated with Service Employees
International Union, AFL-CIO, or any other labor
organization by discharging or in ' any other manner
discriminating against employees in regard to hire or
15 In the event no exceptions are filed, as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herem shall, as provided in Sec
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
tenure of employment, or any term or condition of
employment.
(b) Contributing illegal assistance and; support to Local
144, or any other labor organization.
(c) In any other manner interfering with, restraining, or
coercing their employees in the exercise of their rights to
self-organization, to form, join, or assist Local 144 or Local
1115 or any other labor organization, to bargain collective-
ly 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
necessary to effectuate the policies of the Act:
(a) Offer Robert Ortiz immediate and full reinstatement
to his former or substantially equivalent position without
prejudice to his seniority or other rights and privileges, and
make him whole for any loss of earnings or other economic
loss suffered by him in the manner set forth in the section
hereof entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents , for examination and copying, all
payroll records, social security payment records, timecards,
personnel records, and all other records necessary for
determination of the amount of backpay due and the rights
of reinstatement under the terms of this Order.
(c) Place at their place of business at 520 Beach 19th
street, County of Queens, New York City, copies of the
attached notice marked "Appendix. " 16 Copies of such
notice, on forms provided by the Regional Director for
Region 29, after being duly signed by an authorized
representative of Respondents shall be posted by Respon-
dents immediately upon receipt thereof, and be maintained
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
Respondents to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 29, in
writing within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
16 In the event that the Board 's Order is enforced by a Judgment of the
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."