Red Oaks Nursing Home, Inc.

National Labor Relations Board - Board Decisions

Mar 26, 1979

241 N.L.R.B. 444 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Red Oaks Nursing Home, Inc. and Retail Clerks
Union, Local No. 37, a/w Retail Clerks Interna-
tional Union, AFL-CIO. Cases 25-CA 9299 and
25-RC 6717
March 26, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS PENEII.()
AND TRUESDAI.E
On November 14, 1978. Administrative Law Judge
Almira Abbot Stevenson issued the attached Decision
in this proceeding. Thereafter, the Respondent filed
exceptions and a supporting brief: and the General
Counsel filed cross-exceptions and a supporting brief.
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,land
conclusions2 of the Administrative Law Judge and to
adopt her recommended Order, as modified herein.)
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge, as modified be-
low, and hereby orders that the Respondent, Red
Oaks Nursing Home, Inc., Michigan City, Indiana, its
officers, agents, successors, and assigns, shall take the
i Both the Respondent and the General Counsel have excepted to certain
crediihity lindings made by the Administrative Law Judge. It is the Board's
cstablished pohcy not to overrule an Administrative Law Judge's resolutions
with respect to credibility unless the clear preponderance of all of the rel-
evant evidence convinces us that the resolutions are incorrect. Standard Dry
Wall Podui,, Inc., 91 NLRB 544 (1950). enfd. 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing her
findings.
' he General Counsel excepted to the Administrative Law Judge's find-
ing that Administrator Oszuscik effectively disavowed Personnel Director
Barth's threat to deprive employees of benefits if the Union got in. He con-
cedes that Oszuscik did counter Barth's threat that they would take the
benefits they already had but argues that the threat to no longer help em-
ployees with garnishments was not countered, we find it unnecessary to pass
on this exception, since any additional violations that might be found would
be cumulative and not necessary to support the bargaining order.
'The General Counsel excepted to those portions of the Administrative
Law Judge's Order and notice to employees that contain the language "in
any like or related manner." He contends that because Respondent's unfair
labor practices are so pervasive the broader language "in any other manner"
is necessary. We agree. The pattern oif Respondent's unfair labor practices.
requiring both a cease-and-desist order and a bargaining order, reveals such
a proclivity t violate the Act and purpose to prevent employees from exer-
cising their rights that the broader language is warranted. We have modified
the Administrative Law Judge's recommended Order accordingl.
action set forth in the said recommended Order, as so
modified:
I. Substitute the phrase "in any other manner" for
the phrase "in any like or related manner" in para-
graph l(h).
2. Substitute the attached notice for that of the
Administrative Law Judge.
Ir IS FURTHER ORDERED that the objections in Case
25-RC-6717 be sustained, that the election be set
aside, and that the petition in that case be dismissed.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT coercively interrogate employ-
ees about their union activities or the union ac-
tivities of other employees.
WE WILL NOT give the impression that em-
ployees' union activities are under surveillance.
WE WILL NOT threaten employees with repri-
sals because of their union activities.
WE WIIL NO] imply that benefits have been
lost because of the Union or would be lost if the
Union is selected as the employees' bargaining
representative.
WE WILL NOT create the impression that selec-
tion of the Union as the employees' bargaining
representative would be futile.
WE WIL.L NOT instruct employees to report
union activity to management, or solicit griev-
ances, implying they will be adjusted if employ-
ees refrain from union activity.
WE WILL NOT refuse to bargain with Retail
Clerks Union, Local No. 37, a/w Retail Clerks
International Union, AFL-CIO, as the exclusive
representative of employees in the following ap-
propriate unit:
All full time and regular part time service and
maintenance employees including charge
aides, senior aides, nurse aides, house clerk,
dietary employees, charge cook, laundry-linen
employees, senior laundry-linen aide, house-
keeping employees, senior housekeeping aide,
activity employees and maintenance employ-
ees employed at our 910 South Carroll Ave-
nue, Michigan City, Indiana, facility, exclusive
of all registered nurses, all licensed practical
nurses, all professional employees, all office
clerical employees, all confidential employees,
all guards and all supervisors as defined in the
Act.
241 NLRB No. 65
444
RED OAKS NURSING HOME
WE WILL NOT in any other manner interfere
with our employees' exercise of the rights guar-
anteed them by Section 7 of the National Labor
Relations Act, as amended.
WE WILL, upon request, bargain with Retail
Clerks Union, Local No. 37, a/w Retail Clerks
International Union, AFL-CIO, for the unit de-
scribed above with respect to rates of pay, wages,
hours of work. and other terms and conditions of
employment and, upon request, embody in a
signed agreement any understanding reached.
RED OAKS NURSING HOME, IN(C.
DECISION
STATFMENT ()F THE CASE
ALMIRA ABBOT STEVENSON, Administrative Law Judge:
A hearing was held in this consolidated proceeding at
Michigan City, Indiana, March 15-17 and April 11-13.
1978. The amended charge in Case 25 CA-9299 was filed
October 27. 1977, and served on the Respondent October
27 and November 15, 1977. The complaint was issued
March 7, 1977, and amended at the hearing. The Respon-
dent-Employer duly filed an answer to the complaint and
amended it at the hearing. A petition was filed by the
Union August 24. 1977. and an election was conducted by
the National Labor Relations Board October 21, 1977. in
the appropriate stipulated unit.' There were 36 votes for
and 39 against the Union. with 3 challenges. which were
insufficient to affect the results. The Petitioner-Union duly
filed objections to the election, and on December 1, 1977,
the Regional Director for Region 25 of the National Labor
Relations Board issued a report on objections to conduct
affecting results of election, order directing hearing, order
consolidating cases, and notice of hearing. In his report, the
Regional Director found that Objection I had been with-
drawn; that Objections 2. 3, and 4 alleged conduct also
alleged as unfair labor practices in Case 25-CA-9299: and
that his investigation had uncovered additional alleged ob-
jectionable conduct which might constitute additional
grounds for setting aside the election and which were also
alleged as unfair labor practices in the CA case. The Re-
gional Director therefore consolidated Cases 25-CA-9299
and 25-RC-6717 for hearing.
The issues are whether or not two individuals are super-
visors; whether or not the Respondent violated Section
8(a)(l) of the National Labor Relations Act, as amended.
and interfered with the October 21, 1977, election by engag-
ing in various allegedly coercive conduct: whether or not
the Union represented the majority of employees in the ap-
The appropriate unit is:
All full time and regular part time service and maintenance employees
employed by Red Oaks Nursing Home. Inc., at its 910 South Carroll
Avenue, Michigan City, Indiana. facility. including charge aides, senior
aides, nurse aides. house clerk, dietary employees, charge cook. laundry-
linen employees, senior laundry-linen aide, housekeeping employees,
senior housekeeping aide. activity employees and maintenance employ-
ees but excluding all registered nurses. all licensed practical nurses, all
professional employees. all office clerical employees, all confidential em-
ployees, all guards and all supervisors as defined in the Act.
propriate unit before the election: whether or not the Re-
spondent violated Section 8a)(5); and whether or not a
Gissel 2 remedy is justified.
Upon the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by the Respondent-Employer and the Gen-
eral Counsel. I make the following:
FINI)IN(;S OF FA I AND CON('IISIONS OF- LAW
I. JI RISD)I( lON
The Respondent, an Indiana corporation, maintains its
principal office and sole place of business at Michigan City.
Indiana. where it is engaged in the business of operating a
nursing home. During the past year, the Respondent re-
ceived gross revenue in excess of $100.000 and Medicare
revenue in excess of $10,000. The Respondent is an em-
ployer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
II. I.ABOR ORGANIZATION
The Union-Petitioner is a labor organization within the
meaning of Section 25) of the Act.
Ill. UNFAIR L.ABOR PRA(l I(1-S
A. Introduction
I. Supervisors and agents
The Respondent is engaged in the operation of a 116-bed
comprehensive nursing home. It is organized into five de-
partments: nursing, with 54-58 employees classified as
nurses aides; dietary. 20 employees classified as cooks and
aides; activity, with 2 part-time employees, and housekeep-
ing, with 8 employees doing housekeeping and laundry
work. The complaint alleges. the answer admits, and I find
that the following individuals were, at material times. su-
pervisors and agents of the Respondent: Donald Nixon
president and business manager (retired October 1977);
Maryann Oszuscik--administrator: Virginia Papunen-di-
rector of nursing; and Gene Dipert-dietary supervisor.
I here is a dispute over the supervisory status of Lorraine
Barth and Julia Johnson.
Lorraine Barth Although the Respondent initially admit-
ted the allegation in the complaint that Barth is a supervi-
sor, it amended its answer at the hearing to deny this allega-
tion. There is no contention that Barth should be included
in the appropriate unit. The evidence on the issue of Barth's
status consists mainly of the testimony of Barth and Ad-
ministrator Oszuscik, as follows:
Barth's title is director of personnel. She does not directly
supervise an, employees, nor does she make the final deci-
sion to hire, fire, discipline, or adjust the grievances of any
employee. She shares an office with the assistant adminis-
trator, located next to the office of Administrator Oszuscik.
Under Oszuscik's supervision, Barth directs the personnel
2N . R v. Gissel Packing o. Inc. 395 .S 5'5 (19691.
445
I)EC('ISIONS OF NATIONAL LABOR RELATIONS BOARD
program of' the Red Oaks Home. Thus, she keeps records
on hiring, firing, discipline, timecards. health certificates,
vacations, medical insurance, payroll, and accounts payable
and receivable, and deals with employees on most of these
matters with authority to have them sent to her office for
this purpose.
Barth conducts the initial interview with all applicants
and retains custody of their application forms. Upon receiv-
ing a requisition from a department head for a new em-
ploxec. she reviews the application forms on file and pulls
those she considers qualified for the job: she telephones
those applicants and sets up appointments. When an appli-
cant arrives, Barth conducts another interview during
which she briefs the applicant on Red Oaks employment
policies. She then sets up an appointment with the depart-
ment head and checks out the references, which she for-
wards along with the application form and any other intofr-
mation she has obtained in the interview to the department
head with whom she discusses the merits of suitable appli-
cants. Until July 1977. Barth had not been invited to man-
agement staff meetings, but she was invited to two such
meetings, on July 20 and 26. 1977. and attended them along
with the president and business manager, administrator, de-
partment heads, and the company attorney. At these meet-
ings, the Respondent's approach to the union campaign,
which had recently begun, was discussed, as were campaign
materials and do's and don't's. Administrator Oszuscik ex-
plained that Barth attended these meetings because. "We
felt that she had a great deal of employee contact with
handing out paychecks and checking time cards and with
insurance . . and I felt she should be aware of some of the
things that she was not allowed to say and those things that
she was allowed to say." Oszuscik continued that inasmuch
as Barth spoke for management on such matters as time-
card rates, paychecks. insurance, and hospitalization, Oszu-
scik was concerned that Barth know what to say and what
not to say.
Although Barth's supervisory status may be doubtful un-
der Board precedent' it is clear that she spoke for manage-
ment on matters relating to labor relations and that man-
agement enlisted her on its side in its contest with the
Union for employee allegiance. I find, therefore, that em-
ployees could and reasonably did regard her as a manage-
ment representative in this context and that her conduct
throughout is therefore chargeable to the Respondent.4
Julia Johnson: Johnson's name was included on the Ex-
celvior list, and she voted in the Board election without
challenge. Although at the opening of the hearing the Re-
spondent stipulated to the inclusion of Johnson in the ap-
propriate unit, it changed its position thereafter and now
contends she is a supervisor. In contrast to Barth. Johnson
was not invited to the management antiunion strategy
meetings. and she played a leading role in the Union's orga-
nizing campaign.
See Adelphi L'nieriAt. 195 NlRB 639, 644 (1972): Nor(hrop .i4rcra/i.
Inc. 106 NlRB 23 ( 1953)
Roc hesier (Cadet (Cleaners. In. 205 NLRB 773. fn. 5 1973): United Dalrn
Farmer (perlz AsOimoatwn. 194 NlRB 1094. 1096 (1972). Bank. f
.4mer'a. Vatalnal 7rusr and Saavinga A.s.s-oa tlonl 196 N .RB 591 (1972). and
Sarhernl Seating ('anpalnl. ' u Prautlhra Dinilinl, 189 NlRB 391 (1971).
ciled bh the Respondent. are distinguishable on their facts.
There are approximately 20 employees in the dietary de-
partment -- cooks, dietary aides, and dishwashers. Gene Di-
pert (referred to by all the witnesses as Mrs. Dipert) is in
overall charge as Food Service Supervisor. Johnson (re-
ferred to by the witnesses as Julia or Julie) has the title of
assistant food supervisor; she is the only employee with that
title. She was promoted to that position in 1975. at which
time she received a wage increase from $2.30 to $2.55 an
hour; her current wage is $3.73 an hour, approximately 50
cents more than that of other employees in the department.
Dipert and other department heads are salaried. Johnson
and cook Michele Pavlak have completed a technical col-
lege dietetic assistant program. and Johnson is a member of
The Hospital. Institution, and Educational Food Service
Society. which Pavlak chose not to join. Johnson's job de-
scription, which Dipert has reviewed with her on numerous
occasions, is entitled "Assistant Food Supervisor Cooks."
Dipert's chief functions are to plan the menus; purchase the
food and supplies; hire, discipline, and discharge depart-
ment employees; and prepare work schedules. She is on
duty Monday through Friday from 8 a.m. until 4:30 p.m.
Johnson works Tuesday through Saturday, from 6 a.m.
until 2:30 p.m. Johnson's duties are substantially the same
as that of other cooks, except that she is responsible for the
quarterly fire drills, while Dipert is present. Cook Loretta
Carter credibly testified that the day before the hearing be-
gan in this proceeding, while Dipert and Johnson were both
present in the department, Dipert instructed Carter not to
ask Johnson questions about the work but to ask Dipert., as
she was the head of the kitchen.
The Respondent's main contention is that Johnson exer-
cises supervisory authority and is in f'ull charge of the
kitchen during the 16 hours a week when Dipert is not
present and while Dipert is on vacation. All witnesses
agreed that Johnson is in charge during these periods; she is
responsible that the work goes smoothly. Although she tells
employees to quit talking and get busy. Dipert has in-
structed her on many occasions not to tell employees what
to do. Johnson also orders or substitutes food when it unex-
pectedly runs out: and she calls in off-duty employees to
replace no-shows. I do not credit Administrator Oszuscik
and Supervisor Dipert, however, that Johnson is respon-
sible for the serving of a well-balanced diet or that she has
authority to assign work, discipline employees, or adjust
their grievances; Johnson's testimony that Dipert insists on
retaining full authority in these matters is the more credible,
in light of the probabilities on the record as a whole. More-
over, the record shows that the cooks, including Pavlak,
Clara Lukasik. and Mary Jane Goodloe, none of whom are
contended to be supervisors, have the same duties and re-
sponsibilities as Johnson during other times of the week
when Dipert is not present-from 4:30 to 7:30 p.m. Mon-
day through Friday, after 2:30 p.m. on Saturday, and all
day Sunday. During these periods. I find, as Oszuscik indi-
cated, the work "is a fairly standardized thing in that all the
employees know what they are to do."
In view of' the above facts, including the tight control
exercised over the department by Dipert. the fact that other
employees in the unit are covered by the same job descrip-
tion and exercise authority comparable to Johnson's, and
the fact that the Respondent. which was advised by labor
counsel at the time, included Johnson's name on the Excel-
44h
RED OAKS NURSING HOME
sior list but excluded her from staff meetings. I agree with
the General Counsel and the Union that Johnson was a
leadperson or strawboss but not a supervisor within the
meaning of the Act.
2. Organizational campaign
The Union's campaign began in July and was carried out
through meetings with employees at various public rooms,
including a pizza party for younger employees on October
6, and at the home of employee Diana Chambers: distribu-
tion of campaign literature, including a flyer bearing the
names of certain employees endorsing the Union's cause:
distributing Vote Yes buttons at a meeting on October 13:
and obtaining signed authorization cards. Management first
became aware of the campaign July 20, when a union meet-
ing notice appeared on a Red Oaks bulletin board. An at-
torney was consulted and a staff meeting was immediately
called; at this and a subsequent such meeting held July 26.
the staff was provided with the customary do's and don'ts
and instructed not to engage in conduct, including interro-
gation, which would interfere with the employees' right to
organize. Thereafter, the Respondent campaigned against
the Union by means of meetings of Business Manager Nix-
on with employees and distribution of literature urging
them to reject the Union. No violation is alleged to have
occurred in the Respondent's meetings or literature.
On August 22, 1977, the Union dispatched a letter to the
Respondent demanding recognition, and on August 24 it
filed a petition in Case 25-RC 6717. On August 24, the
Respondent refused recognition. As indicated, the election
was held October 21, and the Union lost and filed objec-
tions which pertain to the same matters alleged in the com-
plaint as violations of Section 8(a)(1).
B. Violations of Section 8(a)(1J
I. Director of Nursing Virginia Papunen
Papunen is second in command to Administrator Oszu-
scik. Papunen supervises 45 50 nurses aides. Her assistant
is Janice Sechrist. The complaint alleges, in effect, and the
answer denies, that in the course of one-on-one meetings
Papunen had with most of the nurses aides during the week
of the election, and on one occasion with employee Szabo
before that, Papunen interrogated employees. threatened
them with reprisals if they supported the Union, promised
benefits for refraining from supporting the Union. gave the
impression of surveillance of union activities, and solicited
employee grievances and implied they would be adjusted if
employees refrained from union activity. The following tes-
timony was presented in support of these allegations:
Stella Szabo is a nurses aide to whom Papunen gave a
routine yearly wage increase on October 3. Two days later,
on October 5 (the day before the Union's October 6 pizza
party for the younger employees), Papunen summoned Sza-
bo to her office. Papunen's assistant, Sechrist, was present.
Szabo testified that after she and Papunen discussed
whether or not Szabo was unhappy with her wage increase,
Papunen asked her if she knew how much the union men
make a year. When Szabo replied she did not care, Papu-
nen asked her, "Well, how about the pizza party? Do you
know about our pizza party?" When Szabo said she did not
Papunen told her, "Well, they are going to have a pizza
party' and coke. You mean you are not invited?" Szabo said
she knew nothing about it, and Papunen then declared, "I
hear you have been making phone calls to the other em-
ployees trying to get them to go to meetings." Szabo con-
fessed to having made one such call, and Papunen informed
her. "Well, we know about all the meetings and the parties
that have been going on. We know everything that the
union is doing. You girls don't have to keep hiding it from
us.
Szabo also testified that she had a one-on-one interview
with Papunen shortly before the election when Szabo was,
as she recalled, wearing a Vote Yes button. According to
Szabo, Papunen asked her during the interview "why I
though we would need a union" and encouraged her to vote
in the election.
Johnnie Anderson: By way of background to one of the
statements Papunen allegedly made to Anderson, the rec-
ord shows that in 1976 the Respondent instituted a work
schedule for nurses aides of 80 hours' work fbr two consecu-
tive 2-week periods followed by 64 hours for the next 2-
week period, a schedule which was approved of by vote of
the majority of nurses aides at the time. In May 1977, be-
fore the advent of the Union, a group of aides consisting of
Anderson, Ella Dennis, Lue Fleming, and Jo Barkow re-
quested that Papunen restore the full 80-hour schedule and
were told she would look into the matter in the spring after
vacations were over. The union campaign intervened, how-
ever, before any decision was made with respect to chang-
ing the schedule.
Anderson testified that in her interview with Papunen 2
days before the election, while Anderson was wearing a
Vote Yes button, Papunen made the following remarks:
Johnnie. I'm really surprised at you girls. I'm very hurt
. . .Because you are trying to get that union in here.
Anderson laughed. and Papunen continued:
I don't know what you're laughing about. I'm going to
make it very hard for you girls.
Anderson mentioned the work schedule, and Papunen said:
Well, I had changed the schedule. Since you all
brought the union in here. it's nothing I can do about it
here.
Papunen charged Anderson with "going to all the meet-
ings." and when Anderson admitted she had gone to all but
one of the union meetings. Papunen exclaimed:
Well, I see now I can't talk no more to you, but I'll tell
you one thing. If that union comes in here. I'm going
to make it hard for you girls. If it doesn't come in here,
I'm still going to make it hard for you.
Annie Fleming: Papunen summoned nurses aide Fleming
to the dining room for a preelection interview after speak-
ing with Anderson. According to Fleming. Papunen asked
her why she was wearing a union button and whether she
thought the Union would put up with employees' watching
TV. Papunen allegedly told Fleming, among other things,
"The Union is not worth a damn" and that Papunen "knew
447
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
all about it and she knew about everything that goes on
there:" that Papunen had made out a schedule, but "her
hands were tied, there was nothing she could do," showing
Fleming a full 80-hour work schedule she said she had
made out and repeating that her hands were tied, there was
nothing she could do. and adding, "Whether the union gets
in here or not I will personally make it very hard for you
girls." Fleming testified she asked Papunen several times in
the past for a full 80-hour work schedule, but Papunen had
always said things were going to stay like they were. Flem-
ing conceded Papunen told her to come in to vote but char-
acterized the statement as saying Fleming had to vote not
as encouraging her to vote.
Diana Chambers testified to a pre-election conversation
with Papunen in the dining room, in part as follows: Papu-
nen began by saying "[Y]ou must think I am stupid. Diana.
I know that you have been having the meetings at your
home ... I thought you was against the union. All this time
you let me think you were against it." Chambers agreed
that she had been against the Union, and asked how a peti-
tion could be got up showing that the employees did not
want the Union. Papunen told her, however, she could not
give such information because "it would have been against
the union's rights." Papunen then wanted to know if em-
ployee Debbie Streeting had changed Chambers' mind
about the Union. Chambers denied this and asserted that
"the reason we went to the Union was to have more bene-
fits." Papunen said that with all the attorney's fees it was
costing, "we don't need this damn union" and that the em-
ployees would not benefit if the Union did get in. Papunen
then almost yelled out, "[W]hat the hell do we need a union
for, Diana? Why? Why do we need this union?" (Employ-
ees Sandra Bruce, Jacqueline Cowan, and Sue Green, who
had come in the dining room for lunch, corroborated
Chambers as to this statement.) Papunen continued that she
had granted requests for days off but the cost of the Union
would prevent any wage increases: that she could change
employees' shifts if she wanted to, she could put Chambers
on the 7 to 3 shift and if Chambers could not make that
shift she "might as well be looking out for another job."
Papunen allegedly also informed Chambers that "people
were telling her everything any time there was a meeting at
my home or any time there was a meeting anywhere else
she knew about it." Chambers admitted that when she
asked if Papunen would be against her if the Union won the
election, Papunen replied she would not and would not
hold a grudge against Chambers and that Papunen encour-
aged her to vote.
Ella Dennis testified as follows with respect to relevant
portions of her interview: Papunen began by stating, "Well,
I notice you are wearing your yes button. Does that mean
you are going to vote yes?": Papunen asked how Dennis
knew the majority was going to vote yes. Dennis said she
had always been dissatisfied with the 64-hour work sched-
ule: Papunen asserted she had told Dennis she would think
about that in the spring when vacations were over, and
asked, "Well, how do you know I don't already have an 80
hour schedule made up for the aides?" Papunen also said
she "was going to fight as hard as she could to keep the
union out because we don't need a union." Dennis said that
whether the Union got in or not she would be the same Ella
Dennis she had always been, but Papunen told her, "Oh,
no, things won't be the same."
Deloris Phillips testified that Papunen said she was going
to talk to all the aides "about this union mess" and asked,
"what did the yes button on my shoes mean, that I was
voting yes?"
Laura Phillips had left the Respondent's employ in
March and returned in May 1977. Phillips testified that on
October 19, 1977, Papunen took her into the dining area,
where
we sat down and she said, "Tell me all about it, Lau-
ra." And I said, "Tell you all about what? ... Are you
going to ask me questions about the union?" She said
she didn't want to harass me or coerce me, that she
didn't know why we wanted any outsider representing
us.
Phillips voiced several complaints, and Papunen charged
that Phillips knew nothing about unions, which Phillips
contradicted on the grounds that her father was a union
steward. Papunen then "said she didn't know why she was
talking to me . . ." It is people like you baby that will be
sorry when this is over.' " When Phillips responded that
Papunen had not said anything she wanted to listen to,
Papunen told her "she was sorry she hired me back."
Karen Haynes testified that Papunen began her interview
by saying she was surprised to see an intelligent person like
Haynes wearing a union button and asking why she needed
someone to represent her. Haynes responded she did not
need anyone to represent her, and Papunen said, "Well, tell
me about it?" Haynes said the employees needed sick bene-
fits, and Papunen responded that "they had been working
on it prior to the union activities." Haynes asked if it was
okay to be the union observer at the election. After thinking
it over, Papunen allegedly told her, "Well, it's not okay, but
you can do it. But it doesn't mean you can vote yes."
Brenda Callahan wore a Vote Yes button to her inter-
view with Papunen, and, according to Callahan, Papunen
began by saying she knew how Callahan was going to vote
because of the Vote Yes button, but things would get
tougher if the Union got in, that "we would make sure that
we only get 15 minutes [for break]. And only a half hour for
lunch." Callahan explained that although this was the rule
at the time, it had not necessarily been enforced within an
extra 5 minutes. Callahan admitted that Papunen encour-
aged all employees to vote in the election.
Papunen denied making the remarks attributed to her by
these employees. She testified that she conducted preelec-
tion interviews with substantially all the nurses aides at the
suggestion of Respondent's attorney. She said that in each
interview, except those in which employees raised addi-
tional subjects, she followed a format she devised based on
the staff do's and don'ts and company handouts, which she
wrote on a card she carried with her, to the following effect:
[I]t had beer. a long haul. The election is coming up
this week. We hope that you will think for yourself. It's
going to be a secret ballot and I certainly urge you to
vote no matter what your feelings.
Papunen testified, with some corroboration by Sechrist,
that her October 5 conversation with Szabo was about Sza-
bo's disappointment with a recent pay raise and desire to be
448
RED OAKS NURSING HOME
promoted to senior aide, and that Papunen informed Szabo
that Red Oaks had been unable to verify certain prior expe-
rience Szabo had claimed in her application. According to
Papunen, her preelection interview with Anderson followed
Papunen's format except for protests by Anderson that peo-
ple were blaming her for the union activity but she hoped
Papunen did not think so as Anderson was loyal to Red
Oaks and would think for herself with respect to the elec-
tion because Red Oaks had been good to her. Papunen in-
sisted she only followed her format in her interview with
Fleming and that the only other comment was by Fleming,
who had been off ill and who said the Home's hospital
coverage was not good. Papunen testified her interview with
Chambers was similar to those she had with other employ-
ees, except that Chambers (who Papunen said had volun-
teered information many times about union meetings and
who had stated at an employee-staff meeting in September
that the Union was going to try to get a former employee's
(Streeting) job back for her) told Papunen that Streeting
had lied to the Union about her termination. When Dennis
raised the work-schedule question, Papunen said, she
merely told Dennis she could do nothing about it at that
point and would not make any promises. Although she
tried to make her format statement to Laura Phillips, she
said, Phillips refused to listen, saying "you don't have a
thing to say to me," and walked away. Papunen testified
she told Karen Haynes she was a very intelligent person
and she should think for herself. When Haynes asked if it
was all right for her to be an observer in the election, Papu-
nen responded she would have to confer with Oszuscik and
get back with the answer, and later told Haynes it would be
all right. Papunen claimed to feel she knew Haynes better
than some of the other nurses aides, but she could not ex-
plain why their testimony was so different.
I credit the testimony of the General Counsel's witnesses.
Although some of them seemed nervous and unable to re-
member everything that was said, this is not surprising in
view of the presence of the Respondent's top management
in the hearing room. Stella Szabo, Annie Fleming, Ella
Dennis, Deloris Phillips, Laura Phillips, Karen Haynes, and
Brenda Callahan all conveyed the impression of honesty
under adverse circumstances. I do not, however, accept
Haynes' testimony regarding alleged remarks by Papunen
about being a union observer in the election, because I am
convinced she misunderstood what Papunen said on that
subject. Sechrist's faintly perfunctory corroboration of
Papunen against Szabo failed to outweigh the force of Sza-
bo's superior demeanor and the inherent believability of her
story. Although Diana Chambers had vacillated on the
union issue, her account of her interview with Papunen also
seemed inherently believable, and she was corroborated on
one point by witnesses, two of whom I have found credible.
In assessing the credibility of Anderson, I have discounted
all testimony about another conversation with Papunen af-
ter the election, as in my view the factors on each side of
that dispute cancel each other out. I find her account of her
one-on-one preelection interview convincing and consistent
with remarks I have found Papunen made to other employ-
ees, with no indication of collusion or "orchestration" as
charged by the Respondent. The number and apparent in-
tegrity of these witnesses persuade me that Papunen yielded
to the temptation to go beyond the do's and don'ts she had
been instructed on and the format she devised in her efforts
to defeat the union movement, and I therefore do not credit
her against the aforenamed employees.5
In assessing the impact which Papunen's questions and
comments may reasonably be said to have had on the em-
ployees' exercise of their right to a free choice of bargaining
representative, I have considered the reassurances given in
general terms by Business Manager Nixon in his speeches
and the Respondent's campaign literature, Papunen's en-
couragement of all employees, including those wearing
Vote Yes buttons, to vote in the election, and her disavowal
of any intent to coerce or harass Laura Phillips or hold a
grudge against Diana Chambers. In my opinion, however,
these factors could not have nullified the coercive effect of
such remarks by a powerful personality like Director of
Nursing Papunen upon nurses aides summoned to a face-
to-face encounter with her. Nor can I find merit in the Re-
spondent's contention that Papunen's references in the past
and during some of the interviews to her alleged "open door
policy" and the existence of a grievance procedure in the
Respondent's personnel handbook render lawful Papunen's
solicitation of grievances, in view of the fact that she had
never, before the advent of the Union, sought out any em-
ployee's complaints while displaying a predilection to set
them right. Moreover, with regard to the work schedule of
the nurses aides, it is clear that before the advent of the
Union several aides had requested an increase in hours to a
straight 40-hour week; that Papunen had told some such a
change would not be made and others that the matter
would be considered after vacations were over in the
spring; and that no decision had in fact been made. There-
fore, when Papunen deceptively told employees during the
union campaign that a decision had been made and implied
that the requested schedule would have been implemented
had the Union not appeared on the scene, the employees
could reasonably conclude they were being deprived of a
benefit because of their union activities.
Therefore, based on the above credited testimony, I find
that the Respondent, on October 5, 1977, coercively interro-
gated Stella Szabo and gave her the impression it was keep-
ing employees' union activity under surveillance; during the
4 days preceding the Board election of October 21, 1977,
again interrogated Szabo: threatened Johnnie Anderson
that reprisals would be taken against employees because of
their union activities and conveyed the impression that
union activities were under surveillance; interrogated An-
nie Fleming, implied that benefits had been lost because of
the Union and would be lost if the Union were selected as
the employees' representative, and gave the impression of
surveillance and threatened reprisals because of union ac-
tivities: interrogated Diana Chambers, created the impres-
sion with her of surveillance and the futility of selecting the
Union as the employees' representative and threatened re-
I have not relied on testimony by Sandra Bruce or Darlene Phillips be-
cause their attempted explanations for the absence of support in their pre-
trial affidavits for some of their statements were unconvincing. Nor have I
relied on Jo Barkow or Betty Butts as, because of demeanor or content, their
testimony was of uncertain dependability.
6 Although no specific allegation to this effect was included in the com-
plaint, evidence thereon was received without objection, and the issue was
full) litigated at the hearing.
449
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
prisals against Chambers; interrogated Ella Dennis and im-
plied the loss of a benefit and reprisals because of the
Union; interrogated Deloris Phillips; interrogated Laura
Phillips and threatened reprisals against her; interrogated
and solicited grievances from Karen Haynes; and threat-
ened Brenda Callahan with reprisals if the Union was se-
lected. I conclude that Respondent thereby violated Section
8(a)(1) of the Act.
2. Dietary Supervisor Gene Dipert
Dipert supervises the approximately 20 employees in the
dietary department. The complaint alleges, and the answer
denies, that Dipert interrogated employees, threatened
them with reprisals if they supported the Union, ordered
employees to report union activities to her, told employees
they could not converse with one another during working
hours in order to discourage union activity, and instructed
employees not to engage in union activities.
Michelle Pavlak, a cook, credibly testified without con-
tradiction that Dipert asked her, 3 or 4 weeks before the
election, how she felt about the Union.
Julia Johnson testified that a week before the first union
meeting she attended on August 4, 1977, Dipert asked her
and cook Clara Lukasik "if we knew anything about the
union drive at Red Oaks. And had we signed a card."
When the employees replied they knew nothing about the
union drive, Dipert said, "Oh, come off it. Don't play inno-
cent with me." Dipert said a union woman had come in and
talked to the employees that night, and asked "could we
please tell her if we saw anybody come in, that she wanted
us to protect her."
Within 2 weeks of the election, Johnson further testified,
Dipert told her and several other employees whose identity
Johnson could not remember that, "it was bad enough now,
but if the union gets in, it's going to be a lot worse."
On March 9, 1978, shortly before the hearing began in
this proceeding, Dipert called Loretta Carter to her desk
after Carter had taken a morning break with Julia Johnson
and Clara Lukasik. According to Carter, Dipert told her "it
was a mess" and asked "if Clara and Julie had discussed the
Union bit with me," Carter said they had not, and Dipert
"advised me not to sign a Union card if anyone come in
and asked me to sign it. And Julie and Clara were the ring-
leaders of it in the kitchen," and added that Carter was "not
to talk this over with no one."
Dipert testified that around the first of August she heard
of a union representative's presence in the kitchen and
asked Johnson and Lukasik to notify her if anyone showed
up again as "they are not allowed in the kitchen." Dipert
denied Carter's testimony and asserted that she called Car-
ter to her desk after the morning break "and I mentioned
that there were union cards in the house. We had word of it.
And, since she was new there, I didn't feel that she ought to
become involved."
I have found above that Johnson was a credible witness.
Her demeanor for truthfulness seemed superior to Dipert's
and her testimony here carries an aura of authenticity. I
also credit Carter as against Dipert, whose testimony re-
garding her conversation with Carter was similar to Carter's
but shaded to soften the possible impact of what she really
said.
I find that Dipert on August 4, 1977, coercively interro-
gated Johnson and Lukasik and instructed them to report
union activity to her; 2 weeks before the election threatened
Johnson and other employees with unspecified reprisals if
the Union were selected as collective-bargaining represent-
ative; and on March 9, 1978, coercively interrogated Lo-
retta Carter and, in the entire context of Dipert's remarks,
coerced Carter in the exercise of a free choice as to whether
or not to support the Union's cause.' I conclude that by this
conduct the Respondent further violated Section 8(a)(1).
3. Director of Personnel Lorraine Barth
The complaint alleges, and the answer denies, that Barth
interrogated employees, threatened them with reprisals if
they gave support to the Union, and gave the impression
their union activities were under surveillance.
Johnnie Anderson was summoned to Barth's office 2 or 3
days before the October 21 election, but their conference
took place in the dining room, where they happened to
encounter each other. Anderson described it as follows:
"[S]he asked me was I interested in the union, and I asked
her who told her that I was. And she said she had ways of
finding things out." After some further discussion, Adminis-
trator Oszuscik joined them, and Barth said the Respondent
had helped Anderson with garnishments in the past, "[b]ut
if the union gets in, we won't be able to help you ... if the
union got in, they would take the benefits that we already
have." Oszuscik spoke up, however, at this point and told
Barth, "Lorraine, no, that's not true we cannot take what
the girls already have. We will just have to negotiate from
there."
Julia Johnson had a conversation with Barth on October
18, 1977. According to Johnson, Barth sent for her to come
to the office, and when she arrived, Barth said "since she
wasn't a part of the bargaining unit, that she would like to
talk to me ... as the Assistant Superintendent that maybe
some of the girls might have come and talked to me." John-
son agreed they had, and Barth asked, "What did they want
with the union? What did they think the union would get
them?" Johnson replied she would not tell any names but
gave some of the employee complaints. Barth then asked
what Johnson intended to do on Friday (election day).
Johnson replied it was a free country and she would do as
she wished. Barth asked if she realized "that things would
be worse if the union got in?" and offered to show figures
on other nursing homes which had unions. Johnson denied
that her own vacation was mentioned.
According to Barth, Johnson had asked to take her vaca-
tion at a time when her father was ill. So when Barth saw
Johnson in the office, she stopped her and said she was
sorry to hear Johnson's father had been ill, and discussed
her vacation request with her. Johnson responded that "this
'I place no reliance on Johnson's testimony that she overheard Dipert ask
employees Lukasik and Goodloe, 2 weeks before the election, how they were
going to vote or on her testimony that Dipert told her and Goodloe after the
election, on March 8, 1978, that they were not allowed to talk during work-
ing hours, as the General Counsel's witnesses were in disagreement as to
what Dipert, who contradicted Johnson, said on these occasions.
450
RED OAKS NURSING HOME
is what the girls had indicated that they felt that they
should be paid for funeral leave or sick leave." Barth asked,
"How do you feel about it?" And Johnson responded that
her feelings were her own. Barth denied Johnson's contrary
testimony.
I have heretofore credited Anderson, and I also find her
testimony more believable than Barth's denial with regard
to Barth's interrogation of Anderson and conveying the im-
pression of surveillance 2 or 3 days before the election,
which I conclude were violative of Section 8(a)(1). How-
ever, even accepting Anderson's version of Barth's alleged
additional comments, with which Barth's testimony dis-
agreed, I find that Barth's implied threat to deprive employ-
ees of benefits if the Union got in was effectively disavowed
immediately by Administrator Oszuscik, Barth's superior,
thereby neutralizing the coercive impact of Barth's state-
ment.
I also credit Johnson, as I have above, over Barth, who
seemed capable of slanting her testimony to support the
Respondent's cause. I therefore find that on October 18,
1977, 3 days before the election, Barth coercively interro-
gated Johnson and threatened her with unspecified reprisals
if the Union were selected as bargaining representative. I
conclude that this conduct violated Section 8(a)(1) of the
Act.
C. The 8(a)(5) Violation
The complaint alleges, and the answer denies, that the
Respondent unlawfully refused to bargain with the Union
as the exclusive representative of the employees in the ap-
propriate unit on and after August 22, 1977.
The Respondent admits, and I find, that the appropriate
unit is:
All full time and regular part time service and mainte-
nance employees including charge aides, senior aides,
nurse aides, house aides, house clerks, dietary employ-
ees, charge cook, laundry-linen employees, senior laun-
dry-linen aide, housekeeping employees, senior house-
keeping aide, activity employees and maintenance
employees of the Respondent employed at its facility
at 910 South Carroll Avenue, Michigan City, Indiana,
exclusive of all registered nurses, all licensed practical
nurses, all professional employees, all office clerical
employees, all confidential employees, all guards and
all supervisors as defined in the Act.
The parties stipulated there were 78 employees, including
Julia Johnson, in the appropriate unit on August 22, 1977.
Initially, I find that 34 of these employees had signed valid
union-authorization cards on or before that date.' In addi-
'This list includes employees whose signatures were solicited by Julia
Johnson:
Johnnie Anderson
Lue Fleming
Deborah Streeting
Brenda Callahan
Cassell Kiner
Sharon Parrish
Deborah Nicholsen Proft
Becky Bulot
Cindy Hahn
Clara Lukasik
Jo Barkow
Pat Fraze
Dorothy Summerlin
Karen Haynes
Ernestine Lewis
Deloris Phillips
Stella Szabo
Judith Dick
tion, contrary to the Respondent's contention, I find, based
on the credited testimony of Johnnie Anderson and John
Case, that five additional valid cards were executed on or
before August 22, 1977.9
The Respondent challenges the following additional
cards, which are in evidence and bear dates on or before
August 22, 1977:
Doreen Moore testified she signed an authorization card
July 20, 1977, obtained from Union Organizer Candy How-
ell. According to Moore, Howell told her the card was "[t]o
form a committee so there could be an election." As Moore
clearly was not told that her card would be used only to
obtain an election, I find her card valid.i °
Ella Dennis signed a card August 1, 1977, at the request
of employee Rose Mary Elmore. Although Dennis had the
impression that Business Manager Nixon told the employ-
ees that the purpose of the cards was solely to obtain an
election, she affirmed that no one else told her that. I do not
understand the law to permit the invalidation of a union
authorization card by management in this manner, and I
find this card valid.
Betty Butts' card bears the signature date of July 6, 1977,
and is stamped on the back as received by the National
Labor Relations Board August 24, 1977. Butts testified that
she put the wrong date on the card, as she actually signed it
in August but could not remember what date in August.
She further testified that "[s]omeone at the meeting" where
she signed the card said the "only reason" for signing was
to get an election, but she did not know who said it. As this
card was stamped received by the NLRB on the same day
as other cards which Union Business Representative John
Case testified were mailed on August 22, 1977, to the Re-
gional Office along with the petition in Case 25-RC-6717, I
find that the card was executed on or before August 22,
1977. do not believe that an employee would reasonably
conclude from a statement such as that set forth above by
an unidentified individual that the card she signed would be
used for no other purpose than to help get an election when
the card, which she read before signing, on its face stated
that the signer wanted the Union to act as her collective
bargaining agent." I therefore find this card valid.
There is a card in evidence which bears the name Kath-
leen Hatfield and the date July 22, 1977. It is stamped re-
ceived by the Union July 25, 1977. Although there is testi-
mony that Hatfield took an active part in the union
campaign and obtained employee signatures on other cards,
Hatfield was not available to testify at the hearing. As the
Julia Johnson Nancy Brummett
Michelle Pavlak Mary Jane Goodloe
Annie Fleming Dawn Lawrenz
Evelyn Paddock Patricia Semla
Sandra Bruce Elizabeth McKinney
Barbara Johnston Ruthie Williams
Janet Lewis Rose Mary Elmore
Laura Phillips Dorothy Lewandowski
Although Nancy Brummett's card is dated merely "8-77," I credit Julia
Johnson that she saw Brummett sign the card the same day Dawn Lawrenz
signed, August 20, 1977.
' Bessie Kellogg, James Sadler, Lee Ethel Jones, Cornne Matthews, and
Lue Hart.
'Serv-U-Stores. Inc., 234 NLRB 1143 (1978).
t Serv-U-Stores. Inc.. supra.
451
42DECISIONS OF NATIONAL LABOR RELATIONS BOAR[)
signature on the card is the same as Kathleen Hatfield's
signature on many other documents in evidence. I find that
Hatfield executed the union authorization card on the date
which it bears and that this card is therefore valid.
As I have fund that a total of 43 of the 78 employees in
the appropriate unit signed valid union authorization cards
on or before August 22. 1977, the date of the Union's letter
demanding recognition and bargaining.'2 I further find that
the Union represented a majority of the employees in the
appropriate unit on that date. In view of the numerous and
substantial violations of Section 8(a)(1) committed by the
Respondent before and after that date, it is clear that the
Respondent's refusal of the Union's demand, which it re-
ceived August 23 or 24. in its response dated August 24.
1977. was intended to and did in fact undermine the
Union's majority status and prevent the holding of a fair
election. Accordingly, I conclude that the Respondent vio-
lated Section 8(a)(5) by refusing to bargain on and after
August 24, 1977."
i\N. ()BJECTIONS
Based on the findings and conclusions above of violations
of Section 8(a)(1) occurring between August 24, 1977, the
date of the Union's petition in Case 25-RC-6717, and Oc-
tober 21. 1977, the date of the election, I recommend that
Objections 2, 3. and 4 be sustained.
v. REMEDY
Having found that the Respondent has engaged in unfair
labor practices in violation of Section 8(a)( ) and (5) of the
Act, I recommend that it be ordered to cease and desist
therefrom and from infringing in any like or related manner
on its employees' exercise of their rights under Section 7 of
the Act. I recommend that the Respondent also be ordered
to take certain affirmative action necessary to effectuate the
policies of the Act.
The Respondent contends that a bargaining order is not
justified because the unfair labor practices committed were
minor in nature; the literature distributed by the Respon-
dent and the remarks to individuals by supervisors assuring
employees of their freedom of choice in the election sub-
stantially minimized the impact of its unfair labor practices.
there has been a turnover since the election of almost 35
percent of the union complement; and other factors. I do
not, however. consider the unfair labor practices committed
to be minor in view of their nature, number, and extent of
probable impact throughout the bargaining unit. In my
opinion, neither the factors recited above nor the Board's
traditional remedies for 8(a)(1) violations render it likely
that another election would result in a truer measure of
uninhibited employee choice than the authorization cards
executed on or before August 22, 1977. 1 therefore, in all
the circumstances of this case, find that the Respondent's
unfair labor practices have undermined the Ulnion's major-
ity and made the holding of a fair election most unlikely.
12 In these circumstances, it is unnecessary to rule on the validity of the
additional authorization cards in evidence.
1 Sien- p Bottling Coampanv of San Francisco. 235 NLRB 297 (1978):
Trading Port. Inc. 219 NLRB 298 (1975).
and recommend that the petition in Case 25-RC-6717 be
dismissed and the Respondent ordered to bargain on re-
quest.'4
Upon the foregoing findings of fact and conclusions of
law. and upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recommended:
OR[)ER'
The Respondent, Red Oaks Nursing Home. Inc., Michi-
gan City, Indiana. its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from:
(a) Coercively interrogating employees concerning their
union activities and the union activities of other employees.
(b) Creating the impression that employees' union ac-
tivity is under surveillance.
(c) Threatening to take reprisals against employees be-
cause of their union activities.
(d) Implying that benefits have been lost because of the
Union or would be lost if the Union was selected as the
employees' bargaining representative.
(e) Creating the impression that selection of the Union as
the employees' bargaining representative would be futile.
(f) Instructing employees to report union activities to
management, or soliciting grievances and implying they
would be adjusted if employees refrain from union activity.
(g) Refusing to bargain collectively concerning rates of
pay. wages, hours, and other terms and conditions of em-
ployment with Retail Clerks Union, Local No. 37 a/w Re-
tail Clerks International Union, AFL-CIO, as the exclusive
bargaining representative of its employees in the appropri-
ate unit.
(h) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action, designed to ef-
fectuate the policies of the Act:
(a) Upon request, bargain collectively with Retail Clerks
Union. Local No. 37, a/w Retail Clerks International
Union, AFL-CIO, as the representative of its employees in
the appropriate unit and, if a contract is reached, sign it.
(b) Post at its nursing home in Michigan City, Indiana,
copies of the attached notice.'6 Copies of said notice, on
forms provided by the Regional Director for Region 25,
after being duly signed by an authorized representative of
Respondent, shall be posted by it immediately upon receipt
thereof, and be maintained by it for a period of 60 consecu-
tive days thereafter. in conspicuous places, including all
14 N.L.R.B. v. Gissel Packing Co.. Inc., 395 U.S. 575 (1969); Plastic Film
Products Corp., 238 NLRB 135 (1978).
A 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 herein 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.
1' 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 l.abor 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."
452
REI) OAKS NURSING HOME 453
places where notices to employees are customarily posted. ing. within 20 days from the date of this Order, what steps
Reasonable steps shall be taken by the Respondent to in- Respondent has taken to comply herewith.
sure that said notices are not altered. defaced. or covered by I s F Rll R ORI)tREI) that the objections filed in Case
any other material. 25 RC 6717 be sustained, that the election be set aside.
(c) Notify the Regional Director for Region 25. in writ- and that the petition in Case 25 RC 6717 be dismissed.