Riviera Manor Nursing Home, Inc.

National Labor Relations Board - Board Decisions

Nov 25, 1970

186 N.L.R.B. 806 (N.L.R.B. 1970)

806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Riviera Manor Nursing Home, Inc. and Council 19,
American Federation of State , County, and Munici-
pal Employees, AFL-CIO. Cases 13-CA-8979 and
13-RC-11744
November 25, 1970
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS BROWN
AND JENKINS
On April 23, 1970, Trial Examiner John M. Dyer
issued his Decision in the above-entitled consolidated
proceeding, finding that Respondent had engaged in
and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. He further found
that Respondent had not engaged in certain other
unfair labor practices as alleged in the consolidated
complaint. Thereafter, Respondent filed exceptions
and a brief in support thereof, to the Decision. The
General Counsel filed timely cross-exceptions and
answer to Respondent's exceptions, with a supporting
brief.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, cross-excep-
tions, answer, and briefs, and the entire record in this
cases, and hereby adopts the findings,2 conclusions,
and recommendations of the Trial Examiner. The
Trial Examiner found that among the benefits
promised to employees by Respondent, in violation of
Section 8(a)(1) of the Act, was a promise of 2-week
paid vacations. This finding was inadvertently not
included in the Recommended Order and Notice. We
shall modify the Recommended Order and Notice to
reflect this finding. We shall also modify the Recom-
mended Order and Notice to include an order that
Respondent refrain from conduct similar to that
found herein.
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 Trial Examiner, and hereby orders
that Respondent, Riviera Manor Nursing Home, Inc.,
Chicago, Illinois, its officers, agents, successors, and
assigns, shall take the action set forth in the Trial
Examiner's Recommended Order, as modified herein-
after:
1. Modify paragraph I(e) of the Recommended
Order to read as follows:
"(e) Promising its employees wage, insurance, and
vacation and holiday benefits if they did not select the
Union as their collective-bargaining representative."
2. Add the following as paragraph 1(h) of the
Recommended Order:
"(h) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise
of their right to self-organization, to form labor
organizations, to join or assist Council 19, American
Federation of State, County, and Municipal Employ-
ees, AFL-CIO, or any other labor organization, to
bargain collectively through representatives of their
own choosing, and to engage in concerted activities
for the purpose of mutual aid or protection as
guaranteed in Section 7 of the Act, and to refrain from
any and all such activities, except to the extent that
such right may be affected by an agreement requiring
membership in a labor organization as a condition of
employment as authorized in Section 8(a)(3) of the
Act, as modified by the Labor-Management Report-
ing and Disclosure Act of 1959."
3. Modify the fifth indented paragraph of the
Notice to read as follows:
WE WILL NOT promise wage, insurance, and
vacation and holiday benefits to our employees if
they do not select the Union as their collective-
bargaining representative.
4. Add the following as the last indented para-
graph of the Notice:
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees in
the exercise of their right to self-organization, to
form labor organizations, to join or assist Council
19, American Federation of State, County and
Municipal Employees, AFL-CIO, or any other
labor organization, to bargain collectively through
I No exceptions have been taken to the Trial Examiner 's findings and
conclusions that Respondent did not violate Section 8 (a)(3), as alleged in
the consolidated complaint , when it discharged employees Sullivan,
Scarbrough, and Chatman.
2 General Counsel urges in its cross-exceptions that the Trial Examiner
erred by his failure to make a finding concerning alleged unlawful
interrogation by Respondent ' s assistant administrator. We find it
unnecessary to pass upon this issue since a finding of unlawful
interrogation , if made , would be merely cumulative in view of our
Decision.
Respondent has excepted to certain credibility findings made by the
Trial Examiner . It is the Board's established policy not to overrule a Trial
Examiner's resolutions with respect to credibility unless the clear
preponderance of all the relevant evidence convinces us that the resolutions
were incorrect . Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188
F.2d 362 (C.A. 3). We find no such basis for disturbing the Trial
Examiner's credibility findings in these cases.
186 NLRB No. 113
RIVIERA MANOR NURSING HOME, INC. 807
representatives of their choosing , and to engage in
concerted activities for the purpose of mutual aid
or protection as guaranteed in Section 7 of the Act,
and to refrain from any and all such activities,
except to the extent that such right may be affected
by an agreement requiring membership in a labor
organization as a condition of employment as
authorized in Section 8(a)(3) of the Act, as
modified by the Labor-Management Reporting
and Disclosure Act of 1959.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JOHN M. DYER, Trial Examiner: On March 25, 1969,'
Council 19, American Federation of State, County, and
Municipal Employees, AFL-CIO, herein called the Union,
filed the charge in this matter alleging that Riviera Manor
Nursing Home, Inc., herein variously called Respondent,
the Company, the Home, or Riviera, violated Section
8(a)(1), (3), and (5) of the Act. The charge was amended on
July 28, 1969, to include an additional allegation of an
8(a)(3) violation, and the Regional Director issued a nine-
page complaint on July 31, 1969, alleging violations of
Section 8(a)(1), (3), and (5).
On January 9, the Union filed the petition in Case
13-RC-11744 seeking an election at Riviera, and on
January 24, the Regional Director approved a Consent
Election Agreement setting the election for February 20.
On February 7, the Regional Director issued an Order
Withdrawing Approval of the Agreement for Consent
Election and setting a Representation Hearing for February
20, based on the intervention of Local No. 4, Service
Employees International Union, AFL-CIO. On February
20, another Agreement for Consent Election was signed by
the three parties and approved by the Regional Director
setting the election for March 20, in a unit of:
All nurses aides, licensed practical nurses, dietary and
housekeeping employees employed by the Employer at
its Nursing Home located at 490 West 16th Place,
Chicago Heights, Illinois, but excluding office clerical
employees, professional employees, registered nurses,
doctors, supervisors and guards as defined in the Act.
At the election held March 20, 13 votes were cast for the
Union, 17 against, 2 were challenged, and none were cast
for the Intervenor. On March 25, the Union filed timely
objections to conduct affecting the result of the election
which, inter alia, alleged intimidation and coercion of the
employees by Respondent's threats, promises, interroga-
tions, and discharge of several employees. On August 4,
1969, the Regional Director issued his Report on Objec-
tions and Order Consolidating Cases, ordering that, since
certain objection allegations were substantially similar to
the allegations set forth in the complaint, it was appropriate
to consolidate the matters, and that the Trial Examiner
should prepare and cause to be served a report containing
resolutions of credibility regarding the witnesses and make
findings of fact and recommendations to the Director
concerning Case 13-RC-11744.
An answer was filed for Respondent by counsel who did
not represent Respondent thereafter during this proceeding
in this matter. This Answer was further amended at the
hearing. Following the receipt of the original Answer,
General Counsel on August 29, 1969, moved to strike
portions of Respondent's Answer or in the alternative
require Respondent to clarify its Answer. On September 19,
1969, Trial Examiner Charles W. Schneider issued his order
on General Counsel's motion denying General Counsel's
motion but stating that the allegations of paragraphs II(d),
III, and X and the first allegation in paragraph XI of the
complaint would be deemed admitted by the Respondent
and found to be true, stating that no further proof of such
facts was required and that contravention thereof was
precluded.
Respondent had admitted various facts regarding
commerce and with Trial Examiner Schneider's Order it
was deemed admitted and true that Respondent at all
material times was an employer engaged in commerce
within the meaning of the Act. Further from this Order it is
found to be true and admitted that the Union had
requested Respondent to recognize it and bargain collec-
tively with it on or about January 9, and that Respondent
had refused to do so on and after that date.
Additionally Respondent stipulated that the Union was a
labor organization within the meaning of the Act, admitted
that it discharged Mary Sullivan on or about February 28
and Mary Scarbrough on March 17, but denied that it had
discharged Mary Harrison 2 or Rose Chatman as alleged in
the complaint. The parties stipulated that Respondent did
grant a number of wage increases to employees within a
month after the election, during the period that the
Objections to the Election were pending. About that same
time following the election, Respondent granted other
employee benefits including certain paid holidays and an
insurance program.
At the hearing held in Chicago, Illinois, on October 7
through 10 and 20 through 23 and November 3 and 4, all
parties were afforded full opportunity to appear, to
examine and cross-examine witnesses, and to argue orally.
General Counsel and Respondent have filed briefs which
have been carefully considered.
This case contains great amounts of flatly contrary
testimony. Much of the testimony seems to be a collective
memory of what the witnesses would like to believe
happened. A great deal of the testimony conflicts with
testimony of other witnesses or with business records or
with testimony of witnesses who seemingly are disinterested
in the proceeding. Some of the testimony seems to be a
matter of simple carelessness with the truth. I have tried to
reconcile the testimony where that is possible but what
follows hereafter, where there are conflicts, is my best
judgment of what happened, given the individuals involved,
the circumstances at the particular time, and the inherent
i The main events herein took place during the late fall of 1968 and the from Respondent's employ was adduced Respondent's oral unopposed
early part of 1969 and unless specifically stated otherwise all dates refer to motion to dismiss the 8(a)(3) allegation relating to her was granted by me
that period at the hearing
2 When Mary Harrison testified, no evidence concerning her departure
808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plausibilities of the situations . In making these resolutions I
have discredited at times testimony produced both by the
General Counsel and by the Respondent.
On the entire record in this case , including my evaluation
of the reliability of the witnesses based on the evidence
received and my observation of their demeanor , and, as
noted above , I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT AND THE
LABOR ORGANIZATION INVOLVED
Respondent is an Illinois corporation maintaining its
place of business in Chicago Heights, Illinois , where it is
engaged in the operation of a private nursing home . During
the past year Respondent's gross revenues exceeded
$200,000 , of which a substantial portion was reimburse-
ments under the Federal Medicare Plan, and during the
same period it received drugs and supplies which originated
from outside the State of Illinois , valued in excess of
$10,000.
I find that Respondent is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
Respondent admits and I find that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
II. THE UNFAIR LABOR PRACTICES
A. Background and Undisputed Facts
Prior to the opening of Riviera , Gus Potekin, its
president , was associated with other members of his family
in a nursing home in Chicago , called the Fountainbleu.
Employed there as an assistant administrator was Herman
Frey, who, when Riviera was opened , came with Gus
Potekin to Riviera in the same capacity. Olga Brown was
employed as a licensed practical nurse at Fountainbleu,
and sometime after the opening of Riviera moved there in
the same position.
Riviera opened in the late winter of 1967 with two
patients . The building is basically a one -story structure with
a partial basement . On the main or upper level which
stretches east to west are 40 rooms for patients, most of
them being double or quadruple bedrooms . The main
entrance is in the center of the building on the north side
and flanking it leading to the main corridor are a patients'
TV room and a consultation room . Opposite the entrance
hall in the main corridor is the patients ' dining room.
Basically the building is split into two sections, designated
stations I and 2, with one station being designated for
extended care, under the Medicare program , while the
other is given over to State -supported patients and private-
care patients . In the basement of the building is located the
main office , the laundry room , and the kitchen area , as well
as an employees ' lounge area.
Gus Potekin is the president of Riviera and owns 75
percent of the stock . His brother Irving Potekin, who
presently runs the Fountainbleu home , is the vice president
of Riviera and owns 25 percent of the stock . Gus' wife,
Sylvia Potekin, is the secretary of Riviera and serves as the
"dietician ."3 Herman Frey was listed in the complaint as
the administrator of Riviera , but according to his testimony
acts as the assistant administrator . There is no dispute that
all four of these people are managerial and supervisory.
There is a dispute between the parties regarding the
supervisory status of licensed practical nurse (LPN) Olga
Brown , Pearl Green , the cook , and the director of
recreation , Betty Frey, who is the wife of Herman Frey. The
question of the status of these three individuals will be
considered infra in the section concerning the 8(a)(5)
allegation.
Although starting in January 1967, the Home actually
opened for business around March and the number of
patients increased until the Home was operating at near
capacity levels . On a regular basis Riviera employs some 40
or so people in the unit, in addition to the clerical
employees and the registered nurses . As a nursing facility a
three-shift operation is maintained , with the shifts running
from 7 a .m. until 3 : 30 p.m ., 3 until 11:30 p.m . and 11 p.m.
to 7 a . m. The first two shifts have a half-hour unpaid lunch
period while the late shift does not have a specific lunch
period. All the employees with some few exceptions are
paid on an hourly basis . From its inception Respondent
granted employees a 1-week vacation after 1 year of
employment . When asked on occasions to provide a longer
vacation for people who had worked longer than 1 year,
Potekin had replied (apparently due to turnover) that it
would never happen . The exceptions to the vacation period
are the managerial personnel, including Herman Frey, and
Betty Frey , who was allowed to take a vacation period (2
weeks) coincident with her husband and receive her full
salary . Around October or November , one of the patients
missed a dress and following a complaint to Riviera it was
assumed that the dress had been stolen . Riviera attempted
to secure the return of the dress, and when it was not
forthcoming, Gus Potekin ordered that a sum of money, $2,
be deducted from each of the employees who would have
had access to the area where the dress was kept. Each of the
nurses' aides, LPN's , cleaning personnel , and registered
nurses had her pay reduced $2 for the pay period of
November 20. Employees in the kitchen were not assessed
since it was felt that they would not have had access to the
clothing . Mary Scarbrough and some other employees
sought advice concerning the deduction , and were eventu-
ally referred to the Union . Scarbrough and Sullivan took
union cards and, together with employee Julia Williams,
distributed cards among the employees during December,
receiving signed cards and forwarding them to the Union.
In the interim Gus Potekin left for a vacation in California,
where he stayed from early December until early February.
On January 9, Neal Bratcher appeared at Respondent
and met with Herman Frey in the office on the lower level.
Bratcher gave Frey two letters , one addressed to Frey and
the other to Potekin, and informed Frey that his Union
represented a majority of the employees and that it wished
Respondent to meet and bargain with it. Frey replied that
he did not have authority to grant the request . After leaving
the letters Bratcher left the premises , and that afternoon
3 Mrs. Potekin actually serves more as liaison between the Home and a
professional dietician under contract to the Home to provide such services.
RIVIERA MANOR NURSING HOME, INC. 809
appeared at the Chicago Regional Office of the Board and
filed the petition herein.
There is some disagreement as to how regularly
Respondent held meetings with the employees. Potekin
indicated that group meetings were held about once a
month and that individual meetings were held with
employees when there was some complaint about the
employees' work.
According to Gus Potekin, he established the monthly
meetings at shift-overlap time in the afternoon to catch the
majority of the employees. The purpose of the monthly
meetings, again according to Potekin, was to confront the
group at one time so that where there were problems
concerning one shift complaining that it was doing the
work of the other shift, they all could be informed about it
at one time. The meetings were also set up as a defense to
demands for wages and so that problems could be
discussed at one time with everyone. Respondent stated
they discussed the appearance of the employees, how they
were doing their job, and eventually something concerning
wages would be brought up. In these meetings Potekin's
response to wage questions was that this was a new home
and due to the lack of patients in the beginning, they had
losses, but as the number of patients continued to increase
and the condition of the patients improved, Respondent
could generate more money to pass on to the girls. He told
the employees repeatedly that if the patients' families found
that the patients were kept neat, clean, and well-groomed
he could ask the families for more funds and these funds
could be shared with the girls. Potekin testified that prior to
October 1968 he never made any definite promises of wage
increases to the employees but would tell them that he
would like to give them insurance benefits, increased
vacations, holidays, and more pay, and would like to set
goals in this area and get to the point where Respondent
could provide uniforms for everyone. At one of the
meetings he mentioned profit sharing as a possibility.
According to Potekin, prior to October and November 1968
they were showing no profit but in October they were
approaching a break-even point, so during the monthly
October meeting he mentioned the possibility of increasing
wages and fringe benefits at a later date. He told the
employees that the insurance company with whom he dealt
on the Medicare program had told him they would go along
on certain expenses on a reimbursement basis but would
not reimburse Riviera for an insurance program for
employees. Since they now knew what reimbursements
Medicare would and would not allow, he had an idea of
where he was going and they were having a final audit
made to see how much money they would have available
and then determine what they could do with it. During this
meeting employees asked for specifics and he told them he
could not give them specifics because he did not know how
much money would be available. He emphasized in his
testimony that he gave no promises for any specific
amounts. He concluded the discussion saying he would try
to have the final information by the November monthly
meeting.
At the November meeting he told the employees he still
had not heard from the auditor, and according to his
testimony he was vague in telling the employees about
wages and fringe benefits , but said he knew they were
anxious about benefits, and promised he would do the best
he possibly could for them, and when he returned from his
trip to California would have an answer for them. In his
testimony he reemphasized that he made no specific
promises at these meetings but said he would get something
going for the employees when he returned.
B. The January 9 Meeting
1. Irving Potekin testified that on January 9, he went to
Riviera to pick up some supplies around noontime and
stayed there between an hour and an hour and a half, using
most of that time in getting the supplies loaded in his car.
He stated that when he arrived, Herman Frey told him of
the Union's request for recognition that morning. After
loading the car he and Frey had a cup of coffee in the
consultation room on the main floor where he stayed for 15
to 30 minutes , by his estimate . During that period some of
the employees entered the room and spoke with him on
several subjects. The first question he remembers asked of
him concerned the $2 deduction. After Frey explained the
deduction to him, he said he could not return it. Irving
Potekin acknowledged that while some six or eight girls
were there he told them he understood they wanted a union
and that there would be an election.
When called by the General Counsel as a witness near the
beginning of the hearing , Irving Potekin testified he arrived
at Riviera before noon and stayed about an hour during
which time he spoke to Frey and addressed an employee
meeting held in the consultation room before noon. On a
later appearance as a witness , he stated he arrived about
noon and left after 2 p.m. On one occasion he stated they
went in the consultation room possibly as late as 1:30 but
later said it only took 20 minutes or so to load the supplies.
Thereafter he said he did not speak to employees at a
general meeting. Concerning this January 9 affair he said
no meeting was called for that day but that employees
wandered in and they spoke.
Herman Frey testified that Irving Potekin arrived at
Riviera around noon and they discussed Bratcher 's visit,
loaded Potekin's car with supplies, and between 12:45 and
1: 15 went in the consultation room for a cup of coffee,
having sent downstairs for Gloria Brown to bring some
coffee up to them. While talking, five or six girls walked in
and he heard one ask about the $2 matter. He left the room
for a salesman visitor and when he returned some 15
minutes later , Potekin was saying there would be an
election and everything would be decided by his brother.
Irving Potekin testified that he addressed a group of 6 to
10 employees for as long as 20 minutes but that it was not a
called meeting . He stated that there might have been some
union literature laying around. Potekin remembered
questions about a suggestion box, the $2 affair, and some
questions about pay rates at Fountainbleu . Otherwise he
denied most of the statements attributed to him by the
employees and that he had had any conferences with
employees other than this one meeting.
A large number of employees , some of them from the
second and at least one from the third shift , testified about
the meeting and conversations with Irving Potekin. The
number of second-shift people who were present would
810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
demonstrate that the meeting lasted longer than Potekin or
Frey indicated, since second-shift personnel who were due
to clock in at 3 p.m. would not normally appear at
Respondent until after 2 p.m. unless they were told to
appear for a meeting. With that much established it is also
probable that Irving Potekin spoke both to first- and
second-shift employees either as one rambling meeting or
as a series of short discussions. In any event I must discount
the time estimates of Frey and Irving Potekin, and I do not
credit Potekin's denial of all the statements attributed to
him. In the position in which he found himself, with his
brother on the West Coast for an extended visit, it was
natural for him as a part owner to seek why Respondent's
employees had authorized a union to bargain for them. The
question then is whether his inquiries crossed the unfair
labor practice barrier.
Although differing versions are given by a number of
employees and it appears that some of the testimony may
relate to meetings with Gus Potekin rather than Irving
Potekin, it is clear from the volume of congruent testimony
that some particular remarks were made by Irving Potekin.
The following is an account of the January 9 meeting from
credited versions of a number of witnesses.
Irving Potekin told a group of employees that he
understood a union had made a demand for recognition
and he wanted to find out what had caused it. He did not
think they needed a union and could get along without one,
that at the other home, the Fountainbleu in Chicago, they
did not have a union and were one big happy family. One of
the employees mentioned the $2 deduction from their pay.
Irving asked Frey about it and Frey explained why the
money had been deducted. One of the employees
mentioned a suggestion box and Potekin said he did not see
why they should not have one. He said his brother Gus was
in California and that he was sure Gus would do right by
them. Potekin said he knew that some of the girls had
signed up for the Union but he did not know who, and that
they really did not need a union. During the meeting there
was a pamphlet from Local 4 on the table, and Potekin said
that if the employees got a union, it would just be
management and the Union meeting together and the
Company could buy the Union off and the employees
would not gain anything. One of the employees spoke up
and said they were not interested in Local 4, but in another
union. Some employees asked Irving Potekin about higher
wages, insurance, and holidays. Potekin assured them that
they would get more benefits without a union and that his
brother would do properly by them.
At one point, one employee asked whether getting the $2
back would satisfy the employees, and if so, to raise their
hands. Potekin indicated the return of the money was
possible. They did not raise their hands and the employee
commented that apparently they wanted the Union.
I do not credit other statements attributed supposedly at
this meeting to Irving Potekin, but as mentioned above I do
not credit his denials that he said nothing concerning the
Union. Irving Potekin may incidentally have gone to
Riviera to pick up some supplies, but essentially his visit on
January 9 was to determine the cause of the union demand
that morning and the leafletting by Local 4 which was
going on around that time. He was there to determine if
there was a tide of union sentiment and if so to try to stem it
until his brother' s return.
I conclude and find that Respondent by Irving Potekin
on January 9 violated Section 8(a)(1) of the Act by
promising employee benefits if the employees did not vote
for the Union and by warning employees that selecting the
Union would be a futile gesture since Respondent could
pay the Union off in private meetings.
I further find that Irving Potekin either in a rambling
meeting or series of short meetings did make remarks to
certain employees which the employees referred to as
private interviews, but I find that his remarks were all
confined to his visit on January 9.
2. Mary Harrison testified that while present with Mrs.
Fulwiley, a nurse's aide, Irving Potekin, Olga Brown, and
Frey, Potekin said he knew there were girls who had signed
for the Union, and though he did not know who, he wished
they would sign against the Union because he did not want
it. Fulwiley was not questioned concerning such a meeting,
and Potekin, Olga Brown, and Frey deny such a meeting
took place. I believe that Harrison's statement refers to a
remark made during the general meeting referred to above.
3. Viewelta Smith testified that she and employee
Beulah Dumas were summoned for a private meeting with
Irving Potekin on January 9, and he asked why they wanted
a union. They answered that they wanted better wages and
working conditions and Potekin told them they should
work together and they could get along without the Union.
Dumas testified that the meeting with Irving Potekin took
place a few days after the original meeting. She stated that
in this meeting Irving Potekin asked her if she had signed a
card for the Union or if she knew who had brought the
cards in, but she did not answer. He then said she did not
have to tell him about it, that he knew the girls really
wanted the Union. Dumas did not mention that Smith was
present.
I believe that Smith and Dumas were referring to remarks
they heard Irving Potekin make on January 9, that it was
evident that some of the girls had signed cards for the
Union and that he did not know who they were and he was
against the Union. I do not credit that Potekin asked
Dumas individually if she knew who brought the union
cards in.
In essence then I find that Irving Potekin violated Section
8(a)(1) of the Act as set forth above in section 1.
C. Gus Potekin's February Meeting
Although his testimony was confused as to the date he
held a meeting of employees, at one point saying February
5 or 6, and on the second occasion saying he did not return
from California until February 11, Gus Potekin admitted
he held an employee meeting which lasted about 2-1/2
hours in early February and that 30 to 32 employees were
present. He testified he opened the meeting by telling the
employees there was going to be an election on whether
they wished the Union to represent them or not. He said
notices about the election would be posted and it would be
a secret ballot election and no one would know how they
voted since no one could go into the voting booth with
them. He said their future depended on their making their
own decisions and that the only time people made errors
RIVIERA MANOR NURSING HOME, INC. 811
was when they jumped to conclusions , did not analyze the
facts, and therefore did not know what they were doing. He
added that if someone was trying to persuade a person to
do something , that the person usually had a reason for
trying to do so, and that he should take his time and make
up his own mind.
The employees then asked questions , one of the first
being from Mrs. Chatman . She complained about the $2
deduction saying that he was treating them like children
and asked what he intended to do about it . He replied that
they were adults and that when the dress was returned, the
money would be paid back to the employees . One of the
employees asked if they didn 't have an election and a union
whether they would get their $2 back . He said that had
nothing to do with the Union and was based solely on the
dress' disappearance . Alice Shenarult asked what Riviera
would do if the employees went on strike. He said they were
not the type of persons to walk off and leave sick people
there who could not be cared for . She asked how they could
know he would keep his word . He said that if he deceived
them in any way they could always get the Union to come
back . She said no, that the Union could not come back
right away, that it would take a year for them to come back
and have an election . He asked how she knew that and she
did not answer.
Johnie Mae Haley asked if the Union was going to
double their salary. He said no that it could not be doubled
because if the Union won the election they would sit down
and try to come to some agreement with them and the
Union would not want to make an agreement that would
close the Company down, that that would defeat the
purpose of the Union, since a salary like that would be
impossible to pay, but reasonable demands would be met.
Carey Kennedy asked what would happen if she did not
want to join the Union , whether she could keep on working
and whether she would have to join the Union. He
answered that if the Union won the election that everybody
in the Home would have to become a union member, but
that if the Union lost , then everybody in the Home would
not have to belong. One of the employees asked how much
the dues were and whether they were deducted from their
salary. He said he did not have all the facts, that they
should get more facts before they make their decision.
Pearl Green wanted to know if the Union would find out
how she voted or what would stop them from blowing up
her house . He said he doubted that they would blow up her
house and no one would know how she voted because it
was a secret-ballot election . Mary Scarbrough asked if it
were true that if the Union got in that no one would be
fired . He said no that is not true, that the only thing the
Union was trying to accomplish was to see that you get paid
for the amount of time that you are working, not the
amount of time that you are sitting down , and that the
Union would not defend them if they were not doing their
job or were neglecting or hurting the patients. Hattie Taylor
asked how much it would cost to join the Union . He told
her that was one of the things she would have to ask the
union people . She asked what would happen if she refused
to pay it . He told her he was pretty sure that if the Union
won the election there would be some kind of system
whereby they would be forced to deduct it from their
salaries and the employees would have to agree to that.
Concerning holidays he said that if the Company won he
would give them as many paid holidays as he could possibly
afford , that they already had a paid vacation, and that he
was on the verge of letting go on the insurance program
although he did not know what the details would be
because they had not decided on the exact program. He
said that there would be a salary increase but he had not
decided what it would be because he still had not heard
from his auditor . Gus Potekin insisted that he did not give
any specific amounts, dates, or times to any questions.
Ida Perkins asked how they could know he was telling the
truth and whether he would give them those promises in
writing. He said he could not give them anything in writing
and that after talking to his attorney he was pretty sure it
would be illegal or be misunderstood as a bribe . Perkins
insisted that he give them promises of what he would do in
writing and that she would not show it to anybody.
The $2 item was discussed several other times during this
meeting. He explained again that it was a secret -ballot
election and that no one would know how they voted. He
asked them not to get into discussions on the floor
concerning the Union because such things would affect the
patients , since some were senile and reacted badly to loud
or angry voices, and that a doctor had told him he was
dispensing increased quantities of tranquilizers . He warned
that they could not afford to have their actions affecting the
patients.
When probed during cross -examination Potekin stated he
did not set out what specific holidays would be granted, but
admitted he might have said they would get a certain
number of holidays now and a certain number later, since
he could not give them all the holidays to begin with. Then
he said he would probably give them half the holidays and
as conditions improved , probably in the following year, he
would give them the remainder of the holidays . Potekin
further testified that he told the employees they could not
lose because if the Union lost he would give them
everything he had promised them , and if the Union won
they would sit down with the Union and come to some
understanding as to what they could afford and make a
deal as to what they would pay. One of the employees said
he had made a lot of promises in the past and did not keep a
number of them . He replied that he had not made them any
specific promises but had said only that he would do the
best he could . She asked what he was going to promise them
now and he said only what he had told them before.
Concerning the matter of a wage increase he states he did
not say exactly how much they would get but an employee
asked him what was the going union rate and he answered
that as far as he knew it was $1.30 an hour . One of the girls
asked what would happen if they were making over $1.30.
He said this would be subject to negotiations and he did not
know what would happen, that whatever figure they arrived
at with the Union would be what the price would be, but if
they made a deal for $1 . 30 an hour the only ones affected
would be the girls who were making less than $1 .30 while
the ones who made more would continue to get the same
amount , but since they would have expenses such as union
dues, they would take home less money than they were
812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
presently taking home so it would amount to a cut in pay
for them . He said he had no idea how it would work out
because he had no contact with the Union and no one who
was dealing with a union knew how negotiations would
finally come out. In concluding the meeting he urged them
to be their own persons , to do their own thing , and let no
one use them.
Most of the employees who testified concerning the Gus
Potekin meetings referred to just one meeting rather than a
meeting in February and one in March . However there
were certain points of agreement ; for instance , most of the
employees referred to Ida Perkins asking Potekin to put his
promises in writing and Potekin refusing , saying that it
would incriminate him. They also referred to Potekin
saying that he would give them holidays , an insurance
program, and a 15 -cent raise if the Union did not come in.
Potekin may not have expressly promised them a 15-cent
raise but I am sure from the way the figure was used by the
witnesses , that Potekin at least said he would give them a
wage increase that might amount to 15 cents.
In any event it is clear from Potekin 's testimony , as well
as from General Counsel 's testimony , that Potekin
promised the employees that if the Union did not come in,
he would give them at least half of the regular holidays, that
they would have an insurance program, and that they
would get a 15-cent-per-hour raise . These promises of his
were much more specific than the previous vague
statements he had made in the October and November
meetings , wherein he said he would do the best he could for
them . At the same time he was deprecating the Union to the
extent that he was telling the employees that the going
union rate was $1.30 per hour , and that if they agreed on
that figure the employees presently earning $1 .30 per hour
would get no more than that and would wind up with less
take home pay after dues deductions . Potekin's acknowl-
edgement of Perkin 's requests for written promises could
only have reference to more definite statements than he had
previously made . She could only have referred to holidays,
etc., not to vague promises to "do the best I can."
I therefore conclude and find that in this February
meeting, Gus Potekin made promises of definite improve-
ments to the employees in the matter of paid holidays,
insurance benefits , and wage increases , if the employees did
not select the Union as their bargaining agent , and that
these promises are violative of Section 8(a)(1) of the Act
since they were intended to discourage the employees from
participating in and supporting the Union.
D. The March Meeting
Gus Potekin held a 10- to 15-minute meeting with
employees on March 6 , around 3 p .m. in the dining room.
During this meeting Chatman brought up the question of
the $2 deduction and Potekin responded that the only way
the employees could get their money back would be if the
dress were returned . Potekin urged them to vote in the
coming election , repeated his statement about making their
own decisions , and urged them to get all the facts so they
would know what they were doing . He cautioned them not
to bicker on the floor because it was upsetting the patients,
but to keep things calm and everything would be all right.
He testified that in this meeting as well as in the February
meeting , he said he did not know what the amount of the
increases would be for salaries and benefits , that it was all
subject to the audit as to how well the Company was doing
and he did not have an answer on that yet , but said he
would keep his promises.
Inasmuch as during the March meeting Potekin again
stated that he would keep his promises regarding the
increases , and since I found that he did make particular
promises on these matters , this reiteration is a further
promise of benefit violative of Section 8(a)(1) as above, and
further it was calculated to influence the employees to vote
against the Union and was an attempt to undermine the
Union's status of majority representative in the context of
the upcoming union election.
E. Gus Potekin 's Private Meetings with Employees
1. Charlotte Bigham testified that when she was called
to the consultation room on the first floor to see Gus
Potekin , he talked about her job , whether she liked it, where
she was from , etc., before speaking to her about the Union.
On that topic , he discussed the disadvantages of a union
saying that if Riviera had the Union it would be bad
because money for dues would be taken from the girls'
paychecks , but if the Union were kept out he could give the
girls raises whenever he wished . He said some girls received
more than others because they knew their jobs better or
were doing different jobs and he could pay them
accordingly . He asked whether other employees had been
talking about the Union . She replied that she did not know
anything about it , that she did not pay any attention to the
others. Potekin asked what she knew about Mary
Scarbrough being fired . She replied that she had heard a
little bit about her being caught sleeping or something.
Potekin said he had fired her because he caught her
sleeping and it was not the first time . He asked who was
working on her station and she said Johnie Haley and Alice
Shenarult . Potekin said he did not want to talk with them
because they were for the Union and were troublemakers,
and asked who was working at the other station . She named
some individuals and he told her to have Edith Kopenheim-
er come see him.
Bigham was in the office 1-1/2 to 2 hours during which
time the conversation covered topics from how she was
making out at work and her abilities to the fact that she
wanted to get into nursing work and thought of going to
nursing school.
Gus Potekin testified that he had no recollection of any
meeting with Charlotte Bigham and denied telling her that
if the Union came in she would get no raise.
In assessing credibility here , I note first that Potekin did
not deny the conversation with Charlotte Bigham but
merely said he did not recall such a meeting. Next he was
asked to deny and denied a statement that Bigham did not
attribute to Potekin . She testified Potekin said employees
would get raises and he could grant them if the Union did
not come in , while Potekin 's denial was of saying no raises
if the Union came in . This is a denial that skirts the issue
but does not meet it . Charlotte Bigham impressed me that
she was telling the truth in relating this incident and her
demeanor and forthrightness both on direct and cross-
examination favorably impressed me. On the other hand
RIVIERA MANOR NURSING HOME, INC. 813
Potekin did not meet the issue here and he was prone to
understate or overstate his testimony to put it in the most
favorable light. As an example, he testified that on another
occasion he had let an employee go because of a wage-
deduction order. Subsequent testimony disclosed that the
other person had left for another reason and that there had
been no wage -deduction order against her.
I conclude and find that Gus Potekin violated Section
8(a)(1) of the Act in his conversation with Charlotte
Bigham by : (a) promising wage increases if the employees
did not select the Union as their bargaining agent; (b)
questioning her as to what other employees were saying
about the Union; and (c) indicating he knew the pro-union
sentiments of some employees , calling them troublemakers
and saying he did not wish to talk with them, thus
demonstrating his antipathy toward the Union and union
adherents, his knowledge of who were union adherents, and
giving the impression that Respondent was surveying its
employees ' union activities.
2. Dorothy Nelson, a current employee of Respondent,
testified that shortly prior to the election, Gus Potekin
asked her to talk to him in the consultation room just after
she finished work. Potekin told her he heard she was going
to vote for the Union and she answered yes. He said he was
going to give the employees a 15-cent raise whether the
Union got in or not, as well as giving them insurance, and
for her to give this message to her sister-in-law Mary
Nelson. He also told her he would know if she voted for the
Union or not and if the Union got in and the employees
went on strike he would tell the judge that the people in the
Home were sick and the judge would throw the employees
out.
Gus Potekin testified he recalled talking privately in
March with Dorothy Nelson only on the morning of the
election when she passed by him in the doorway and said
good luck and he answered thank you very much and do
not forget to vote and she said she would be sure to do it.
He denied saying he had ever told her he would give her a
15-cent raise and insurance whether the Union got in or not
and stated that the only thing he might have said in private
was that he would do what he had promised to do, that is,
do what he could afford to do for them.
Gus Potekin said the purpose of private meetings with
employees in the consultation room was to discuss
employee shortcomings and that in all the meetings he had
with employees he tried to avoid specifics and tried to brush
off employees' inquiries in regard to wages and other
matters.
I credit Dorothy Nelson's version of this incident. She is
still employed by Respondent and her testimony including
her demeanor indicated to me that she was attempting to
truthfully tell what had happened. I therefore conclude that
Gus Potekin did ask if she was going to vote for the Union,
said he was going to grant a 15-cent raise and insurance
benefits whether the Union came in or not, and told her to
pass this message on to her sister-in-law. By making these
statements and the statements that he would know how she
voted in the election and that strikers would lose their jobs,
Potekin violated Section 8(a)(1) of the Act.
3. Julia Williams testified that about 3 days before the
election she was called to talk with Gus Potekin in the
consultation room . Gus said he heard the girls had signed
cards for the Union but if the Union did not win the
election he would give them whatever the Union said it
would give them , including paid holidays, insurance, and a
raise . During cross-examination she elaborated on this
testimony a bit , stating that Potekin said he heard she had
signed a union card and asked if she knew anything about a
union . She said she did because she had previously
belonged to Local 4. He said that he could not tell her how
to vote but if the Union did not come in he would give them
paid holidays , a raise , and insurance.
In partial confirmation of her testimony , Gus Potekin
stated he had a private meeting with Julia Williams in
March with Olga Brown present . They talked about her
previous employment in another nursing home where he
knew some of the people . Potekin indicated that she had
come by the consultation room to ask for time off and that
he had not called her in. He did say he asked if she had
signed a union card and she said no. He denied saying that
if the Union did not get in he would give her what the
Union said it would get for her in the way of raises and
insurance.
I do not credit Gus Potekin 's denials in this instance
because what he is denying is in essence what he testified he
said to the employees in the general meetings ; that is, that
the employees would prosper either from what he gave
them or from what they were able to get from negotiations
with the Union. I conclude and find that his inquiry of
Williams as to whether she signed a union card was
unlawful interrogation , and his promises of benefits if the
employees did not select the Union as their bargaining
agent are violative of Section 8(a)(1) of the Act.
4. Mary Sullivan, one of the alleged 8(a)(3)'s, testified
that in February she saw Gus Potekin downstairs in the
office with Mr. Frey and to Potekin's inquiry of how they
were coming along with the Union she replied she guessed
it was all right.
Potekin stated he talked to Mary Sullivan privately in the
consultation room in February and did not recall Frey
being present at this warning meeting . He said he was
getting some scuttlebutt about employees smoking and
knew that she smoked and was warning her about smoking
on the floor. He stated he did not ask her how the Union
was coming.
It is not clear whether these two people are talking about
two different meetings or a single meeting . In any event
there is a denial from Potekin that he inquired about how
the Union was coming . Elsewhere Potekin testified he had
no idea Sullivan was in any way connected with the Union
when she was fired.
I believe that this testimony was offered by General
Counsel to establish that Respondent knew of Sullivan's
union activities prior to her discharge . However, in
assessing credibility as between these two individuals there
is a grave problem since, similar to Potekin , I found that
Sullivan exaggerated and distorted facts in her testimony
and was not a truthful witness . In this instance I find there
is no preponderance of the evidence that this event
occurred and I will therefore dismiss the allegation
referring to this incident.
5. Viewelta Smith testified that about 2 weeks before
814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the election she was sent to see Gus Potekin in the
consultation room and this was the only conference she had
with him in the room. After some conversation about how
she liked the Home and her job, whether she had any
problems , and how much she made , Potekin asked if she
knew who the people were who were trying to bring the
Union in. She said she did and Potekin asked if she had
signed a union card and then said he did not want to know
but asked how she was going to vote. She said she had made
up her mind but would rather not say. She confirmed this
testimony on cross-examination stating again that Potekin
after asking if she had signed a union card told her he did
not want to know.
Gus Potekin testified he had a meeting with Viewelta
Smith in March in which he warned her he was getting a
number of complaints from supervisory personnel that she
was sassy to them and that her conduct was bad for the
patients. He told her that if the patients' families saw her
arguing with a supervisor and causing a commotion, they
would wonder if the situation was worse when they were
not there. He said that if the reports were true it had to be
stopped immediately and she said they were not true. He
said that during this meeting he did not ask if she was for
the Union, nor how she was going to vote in the union
election.
It is difficult from these conflicting versions to say
whether the two witnesses are talking about the same
meeting. The other conferences noted supra lend credence
to Viewelta Smith's version since this conference took place
around the time that Gus Potekin was talking to other
employees in the consultation room and discussing their
union views and sympathies. I credit her version of the
conversation, finding this to be one of a series of
conversations in which Gus Potekin sought to determine
union strength by interrogating employees and sought to
undermine the Union's majority status by holding out
promises of benefits if the Union were defeated, and the
possibility that employee take-home pay would be lessened
by no wage increases and union dues deductions if the
Union was selected by the employees.
I conclude and find that Gus Potekin violated Section
8(a)(1) of the Act when he questioned Viewelta Smith as to
whether she knew the identity of the union proponents,
whether she had signed a union card and how she was going
to vote. It is no mitigation of the offense that after she told
him she knew the identity of the union proponents, that he
followed his question of whether she had signed a union
card by saying he did not want to know. He contravened
this by asking how she was going to vote. Her answer
declining to tell him and her other responses were enough
to inform him that she was prounion. His actions
constituted unlawful interrogation and an invasion of her
Section 7 rights.
6. Johnie Mae Haley testified that 2 or 3 days before the
election she was sent to see Gus Potekin in the consultation
room. Potekin said he heard she was for the Union and she
said she was. He told her that if they did not vote for the
Union he would give them a 2-week paid vacation, paid
holidays, insurance, and a raise after the election. He asked
if she knew why Mary Scarbrough had been fired. She
replied no. Potekin said that he had caught her sleeping in
room 114. She confirmed her testimony on cross-examina-
tion.
Gus Potekin said he did not remember talking to Johnie
Mae Haley in the consultation room in March but said he
never told her he had heard she was for the Union or that if
there were no union she would get benefits like vacations,
holidays, insurance , and a raise.
I credit Johnie Haley 's testimony , noting again that this
was one of a series of meetings Gus Potekin held in the
consultation room in an effort to undermine the union
majority. I conclude and find that Gus Potekin violated
Section 8(a)(1) of the Act by telling employee Johnie Mae
Haley that he understood she was for the Union and
promised her better vacation , insurance , paid holidays, and
a wage raise if the Union were not selected by the
employees . His initial statement was calculated to impress
upon her that Respondent knew of its employees' union
sentiments and activities , intimating that such activities
were under surveillance , and the other statements were
promises held out to sway her attachment to the Union and
to undermine its majority status.
7. Among other things Rose Chatman testified that she
had a conversation with Gus Potekin 2 to 3 weeks before
the election in which Potekin said he understood she was
strong for the Union and she denied it. She stated that in
this conversation she complained of being treated like a
child and that nothing was said about the wage-deduction
orders against her.
Potekin testified he had a conversation with Rose
Chatman in March regarding her treatment of a patient,
Mrs. Anderson. He admits that something was said about
the Union but he was unsure of the statement ; however, he
was sure he said nothing to the effect that he heard she was
for the Union.
I do not believe Rose Chatman 's testimony concerning
this event, finding that she distorted her testimony
concerning other events and was not truthful in a number
of instances. This testimony was apparently offered to
attempt to establish that management felt she was
prounion . I do not credit it and I will dismiss that portion of
the complaint alleging this action as violative of Section
8(a)(1).
8. Alice Shenarult testified that in her March meeting in
the consultation room Gus Potekin to her inquiry answered
that he fired Mary Scarbrough for sleeping. Potekin said he
did not see why they needed the Union, that they should be
like one big happy family and if the Union did not come in
he would give the employees paid holidays, a 15-cent raise,
and insurance after the election.
Potekin testified he did not have any conversation with
Alice Shenarult in the consultation room in March and that
he did not tell her that without a union she would get
insurance benefits , wage increases , etc. Alice Shenarult's
testimony appeared credible to me and conformed to the
pattern which Potekin set in these private conversations. I
conclude and find that Gus Potekin violated Section 8(a)(1)
of the Act by promising employee benefits if the employees
did not select the Union as their bargaining agent in his
plan to undermine the Union 's majority status.
RIVIERA MANOR NURSING HOME, INC. 815
F. The Increased Postelection Benefits
The parties stipulated that following the election
Respondent instituted pay raises of approximately 15 cents
per hour which were put into effect within I month of the
election date. There was testimony that employees were
given May 30 (the first holiday after the election) as a paid
holiday with work performed on that day being compensat-
ed by double pay. The parties also stipulated that the
insurance program selected by Respondent was put into
effect a short time after the election . All these improve-
ments were made during the period in which the objections
to the election were pending.
This case resembles Sea Life, Incorporated, 175 NLRB
No. 168, in that vague promises were made to employees
that conditions would improve as Respondent's economic
conditions became better , and when a union appeared on
the scene, definite promises were made , and following an
election which the Union lost, the increased economic
benefits were granted. As the Board said in that case "The
record shows that while the Respondent expressed a desire
to consider new benefits before it learned that the Union
was organizing its employees , definite plans were formulat-
ed and implemented only thereafter. . . . Considering the
vagueness of the Respondent 's commitment before it
learned of the Union's campaign, the timing of the specific
announcement , the vehicle for implementing new benefits,
and the record as a whole, we find that the Respondent was
motivated by a desire to defeat the Union, rather than by
any legitimate business considerations . Therefore we find
that the Respondent violated Section 8(a)(1) of the Act by
granting group life insurance, profit sharing, and a credit
union , while objections to the election were still pending."
(Citing Ambox, Inc., 146 NLRB 1520.)
In the instant case, the speeches made by both Irving and
Gus Potekin, the private employee interviews, and the
benefits granted immediately after the Union lost the
election while objections to the election were pending, all
amount to violations of Section 8(a)(1) of the Act and are
sufficient in and of themselves to warrant setting aside the
election in this matter.
G. The Discharge of Mary Sullivan
Mary Sullivan testified that she was fired on a Friday
evening before going on duty on the floor. Her version of
the incident is that , while downstairs checking in, she was
told by Glona Brown that Mr. Frey wanted to see her in the
office and she went in and asked him what was happening.
Frey said that Gus got a call that she was smoking in a
patient 's room while oxygen was being used , and as of
11:30 that night she was fired. She responded no, not me
and he said yes, you. Sullivan said they got the wrong one,
that nobody saw her smoking around an oxygen tent while
oxygen was in use. Frey said that she had been pointed out.
Sullivan said that she had been doing that work for 15 or 20
years and had been around oxygen tanks and had better
sense than to smoke around oxygen when it was in use.
Frey said he was just doing his job that Mr. Potekin said to
let her go. She said it was nice to get fired for the first time
in her life just to see how it felt and that if she was fired at
I1 p.m., she was fired as of that time and he could make out
her check , that she was not working that night . He made
out her check and she left.
The version of her discharge as given by Frey, Potekin,
and others is completely different and under the circum-
stances is the version I find credible.
Hattie Pearson testified that her mother was a patient at
Riviera during February and March 1969 and that she
knew Mrs. Sullivan from her visits with her mother. She
testified she had seen Mrs. Sullivan , while carrying a lit
cigarette , leave her mother's room , go down the hall, and
walk into another room where oxygen was in use. Being
concerned for her mother 's safety, Mrs. Pearson wrote an
anonymous letter dated February 10, 1969, to Gus Potekin
stating in essence that some of the aides were smoking on
the floor while oxygen was in use and that such a practice
was dangerous to the patients . Thereafter she continued to
see Mrs. Sullivan smoking on the floor and on February 25
wrote another letter to Potekin which she signed In this
letter (Respondent's Exhibit 11) she stated again that she
was writing about the aides smoking on the floor while
oxygen was in use and that she feared for her mother's life
since her mother was helpless . She stated that she had
spoken to the aide about smoking but the aide had become
angry about it. She stated that she did not want to cause
any trouble for either the aide or for her mother but felt it
was necessary to report Mary Sullivan.
After receiving the letter Gus Potekin contacted Mrs.
Pearson and she confirmed to him over the telephone that
this had happened. Potekin asked her to come in that
evening and confront Sullivan with it and she agreed.
Sullivan was then working on the 3 to I I p.m. shift.
After receiving the anonymous letter, Potekin asked Frey
to speak to all the aides on the floor and warn them that
they were not allowed to smoke anywhere on the floor. Frey
confirmed that Potekin had given him such a message and
testified that he did speak to all of the personnel on all of
the shifts, warning them not to smoke anywhere on the
floor.
After receiving the second letter, Potekin told Frey that
he had confirmed with Pearson the information in the letter
and that he was planning to confront Sullivan with Pearson
later that evening, and if Frey saw Sullivan smoking at any
time to immediately discharge her.
Frey testified that around 3:30 p . m. he went upstairs on
the nursing floor and came upon Mrs. Sullivan close to the
nurse's station where he saw her take a drag from a
cigarette and put it out. He immediately went up to her,
told her he wanted to see her in the office downstairs, went
downstairs, had her card punched out, and told her he was
discharging her for smoking.
Sullivan 's timecard, which contained punches for that
date (Respondent's Exhibit 20), showed she punched in at
2:43 p.m. and punched out at 3:44 p.m., over 1 hour later,
which would indicate that after punching in she had plenty
of time to be up on the floor and should have been there,
since her shift started at 3 p.m. when it overlapped with the
shift that got off work at 3:30 p.m.
Thelma Fitzpatrick , a licensed practical nurse who was
Sullivan 's charge nurse at that time, testified she saw
Sullivan smoking in the hall coming from a patient's room
816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and confirmed that Sullivan was smoking when Frey came
up behind her and told her to come down to the office.
In addition to this corroborated, detailed testimony
against Sullivan , the General Counsel during cross -exami-
nation brought out that when Mrs. Pearson had seen
Sullivan go into a room where there was oxygen in use, a
relative of the patient in that room had run up to Mrs.
Pearson and complained about such a thing going on,
stating that she would remove her relative immediately if
they allowed such dangerous practices in the Home. This
testimony coming during cross-examination impressed me
that Mrs. Pearson was telling the truth and that her letters
to the home were founded on fact. It lent a more convincing
air to the testimony against Sullivan.
There is no contention that the Home did not have
specific rules forbidding employees smoking on the nursing
floor and that the posted no-smoking signs were meant for
the relatives of patients as well. It is uncontested that this
rule was enforced at that time.
Despite Sullivan's protestations that she only smoked in
the patient's dining room and the areas where the
employees were allowed to smoke, her testimony on the
whole was not credible as to the amount of cigarettes she
smoked, particularly when she stated that she did not know
how much she smoked each day, although she had smoked
since she was 16 years old. General Counsel did not
establish a case for Mrs. Sullivan, there being nothing to
establish company knowledge of her union activities and
there being convincing evidence that she was violating
established and enforced company rules, and accordingly I
must dismiss the allegations in the complaint relating to
her.
H. Mary Scarbrough
Mary Scarbrough was employed as a nurse's aide at
Riviera from 1967 until March 16, 1969. In late 1968 she
became incensed about the $2 deduction from her
paycheck and sought some information and assistance
from a Local OEO office in Chicago Heights. Several days
later Neal Bratcher of the Union contacted her and they
discussed whether the employees would like a union. He
told her if they wanted a union they would have to sign
authorization cards and return them to him. He gave her a
supply of cards. When Mary Sullivan picked her up to go to
work, she told Sullivan about the meeting and gave her
some cards. These two solicited the employees and
procured most of the signed cards.
On March 16, she had a meeting of employees at her
home before going to work at 1 I p.m. and it was decided
she would be the union observer at the election on March
20. After checking the patients she went downstairs to
check the linen for the following morning and then went to
the dining room where she ate lunch with Ida Perkins. She
said she had some baked ribs and cake for lunch and then
told Ida Perkins she had a stomach ache and was going to
go to her station to set up the patient's medication. She
testified she went to set up the medication but had
menstrual cramps and telling Mrs. Powell, her charge
nurse, of her problem asked her to set up the medication
while she went to lie down near the radiator in room 114.
She said that beside cramps she was chilled and got a
blanket from the closet in the room, spread it on the floor,
and lay down on it between the bed and window but did
not cover herself with the blanket. She said the room lights
were off and later she heard Gus Potekin and Herman Frey
come in the room. The lights were turned on and they
walked over beside the bed and asked who she was. She
identified herself and said she had a stomach ache . Potekin
said she was lying there sleeping and to get up and punch
out. She told him she was not asleep and he said she was.
Frey punched her timecard and made up her check and
brought it to her and she left.
During cross -examination when asked concerning her
pains she stated that they had started earlier that evening
and after more examination stated they had started that
afternoon . She reiterated that , although she was lying close
to the radiator for warmth , she did not cover herself with
the blanket she had spread on the floor.
The General Counsel produced Ida Perkins who testified
that Scarbrough first complained of pain during the
meeting preceding their going to work . She stated that
although Scarbrough had brought some chicken for her
lunch , she did not eat because her stomach was hurting
badly. Perkins was positive that Scarbrough ate nothing.
Perkins testified she suggested that Scarbrough go lie
down in room 114 by the radiator. About 2:45 a.m. she saw
Scarbrough go into the room carrying a blanket and she
later went into the room and saw Scarbrough down on her
knees with the blanket spread out.
General Counsel 's witness Eleanor Beeks testified she
was on duty the same evening that Scarbrough was
discharged . She said she had seen Scarbrough go into room
114 at times to take a nap and on the night of her discharge
Scarbrough told her she was going in room 114 to take a
rest. She had no recollection that Scarbrough said anything
about being ill.
Gus Potekin and Herman Frey testified as to how they
found Scarbrough in room 114. Mr. and Mrs. Gus Potekin
and Mr. and Mrs. Frey had been out socially and returned
to the Frey home about I a.m. where the Potekins were
going to stay overnight rather than drive some 50 miles to
their home. Shortly after they arrived Frey received a
telephone call and told Potekin it was an anonymous call
from someone saying that Riviera personnel were sleeping
on duty. After discussing this for a few minutes , Potekin
said he thought they never caught any of them sleeping
because they were able to see the lights in Frey's house
across the street. They decided to turn out the lights and
wait a few hours and then visit the Home. About 3 a.m.
Frey and Potekin walked in one end of the Home cursorily
viewing the rooms until they got to the nurse's station and
asked Charge Nurse Beeks who else was on duty and where
they were . Beeks said that Maper Thomas and Mary
Scarbrough were working on the station and she thought
they were down the hall in room 117 or 116. Potekin and
Frey found Maper Thomas changing bed linen for a patient
but she did not know where Scarbrough was. Back at the
nurse 's station Beeks said she did not know where
Scarbrough was, did not think she was visiting at the other
nurse 's station, but could have gone to the laundry room.
Potekin and Frey went downstairs to the laundry room,
back upstairs to the other station where Powell and Perkins
RIVIERA MANOR NURSING HOME, INC. 817
said they had not seen Scarbrough, and back to Beeks
without seeing her They then started checking each of the
rooms on station I starting with room 101, walking into the
room to check for her. After going partway into room 114
and not seeing anyone Potekin noticed that the drapes were
down and there was a spot on the ceiling. He called Frey
and they went back in to discuss it. They turned on the
lights and walked into the room. Potekin testified they
almost stepped on Scarbrough who was lying on the drapes
with her head on a pile of patient's clothing close to the bed
and between it and the window. They had been unable to
see her until they walked around the bed because the bed
spread hung close to the floor. Potekin's testimony was
confirmed by Frey, that he shook her awake and when she
got up she claimed she was having menstrual cramps.
Potekin accused her of sleeping on the floor, saying he was
not paying her for sleeping and that if she had problems she
should have been lying on the bed, not hiding behind the
bed on the floor. She asked for another chance but he
denied it and discharged her. He had Frey call a meeting of
the others on that shift and told them he had fired
Scarbrough for sleeping on the job. He said that when one
person slept the work was made harder for the rest of them
and if he felt they could get along with one less girl he
would not have hired the number he did
Potekin admitted he knew Scarbrough was a union
adherent when he discharged her, saying he had gathered
that from her remarks at the February and March meetings
and heard from Frey the names of some of the girls who
were active in the Union He said he also learned some
names of two active union adherents from some of the girls
This latter admission supports my findings that he did
engage in conversations with employees as to which
employees were active in the Union.
The case presented to establish that Scarbrough was
discriminatorily discharged does not hold together. As may
be seen from a review of General Counsel's evidence, there
are contradictions between the testimonies of Scarbrough
and Perkins, as well as internal contradictions and actions
which are not plausible if the circumstances were as
reported. For instance, Scarbrough's pain which she
originally reported after eating a big lunch, were expanded
to have started some 8 or 9 hours earlier. It does not seem
possible that she could have had the amount of pain she
and Perkins described and put away a lunch of baked ribs
and cake. Perkins apparently recognized this and emphati-
cally testified that Scarbrough did not eat lunch
It would further seem that if a person were having chills,
she would either get in bed or wrap herself in a blanket, not
merely lie on top of a blanket or drapes. Although
Scarbrough intimated that Powell was her charge nurse,
whereas Powell was working on the other station, Eleanor
Beeks, her charge nurse and General Counsel's witness,
testified that Scarbrough said she was going to lie down in
room 114 and said nothing about being ill. It appears that
the weight of testimony is that Scarbrough went to room
114 to take a nap and was caught sleeping on the job by
Potekin and Frey.
There is no allegation that the rule against sleeping on the
job
There is no allegation that the rule against sleeping on the
job was not strictly enforced and there was testimony that
others had been fired for breaking the rule. Respondent
then had cause to discharge her and under the circum-
stances I can not find that she was discriminatorily
discharged. From the testimony above it appears that
Respondent is most desirous of avoiding the Union and in
this instance may have been happy to discover a valid
reason for discharging Scarbrough.
There may be some lingering suspicions in the minds of
Respondent 's employees as to the bona fides of the
preelection discharges of Scarbrough and Sullivan, who
were the main union proponents . However , suspicions can
not supplant facts and as set forth above the facts of these
two discharges negate any 8(a)(3) findings. I therefore
recommend the dismissal of the 8(a)(3) allegation concern-
ing Mary Scarbrough.
1. The Allegations Concerning Rose Chatman
Rose Chatman, a licensed practical nurse, worked for
Respondent from October 1967 until March 5, 1969. As
noted above, I did not believe her testimony regarding an
alleged 8(a)(1) interrogation by Gus Potekin. She did sign a
union card but other than that, her union activity was
minimal.
Respondent's rules for its employees (Respondent's
Exhibit 14) besides containing rules forbidding smoking,
sleeping, or napping on the job also stated that any
employee who receives a wage-deduction notice would
have 72 hours to bring in a release of judgment or the
person would be let go.
In 1968 Rose Chatman and Respondent received a wage-
deduction order for over $300 from Texaco Oil Company.
In discussing it with Frey, they agreed that Respondent
would make deductions from her salary for a period of time
and such was done, and an amount over $200 was deducted
and forwarded to Texaco's counsel. Gus Potekin stated that
he made an exception for Rose Chatman because licensed
practical nurses were very hard to find. Thereafter, a release
was received and apparently Potekin, Frey, and Chatman
felt that the entire matter was completed. In December
1968, she received a further letter from counsel representing
Texaco dunning her for a balance of $117. She testified that
she answered this letter in the latter part of December or
early January, saying that she understood the bill had been
paid and if there was a balance that they should contact the
nursing home. Counsel for Texaco testified that this alleged
letter was never received by him. Chatman testified that
after writing the letter she talked to Herman Frey about the
matter and Frey told her to bring in her receipts and check
stubs and they would go over it. According to both her and
Frey, they did so and it became evident after checking the
amounts that had been deducted, that the full amount had
not been paid, but that there was some discrepancy
between the claimed balance of $117 and what they figured
the balance to be.
According to Chatman after that meeting with Frey
nothing more was said by anyone from Riviera until just
before the election when Frey had her come to the office
and gave her a typewritten letter saying that she had to pay
the balance by the next day and if it was not paid she would
be discharged She specifically testified that she did not
818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discuss the wage-deduction order with Potekin after her
first conversation with Frey. She was off work after
receiving the letter from Frey and when she came in a few
days later to pick up her check she was told by Gloria
Brown that she was fired. She again specifically testified
that she had no talks with Potekin except when he called
her in to talk to her concerning the Union, which testimony
I have discredited.
Potekin testified that he thought that the matter had been
settled in 1968 and was surprised to get the second wage-
deduction order on Chatman in February 1969 bearing a
return date of April 1. Potekin instructed Frey to contact
his attorney Aaron Jacobs and Rose Chatman and check it
out. Rose Chatman was called into the office on March 6,
and Potekin asked her about the matter. She said she had
paid it with her personal check. They telephoned Attorney
Jacobs and Potekin described the matter to him and then
had Chatman speak, to Jacobs. Chatman denied that she
owed any money stating that the debt had been paid by
check.
Attorney Jacobs testified that around March 6, he had a
telephone conversation with Rose Chatman in which she
stated that the bill had been paid. He urged her to bring in
the receipt so that they 'could take the matter up with
counsel representing Texaco.
Potekin testified that he had several more conversations
with Rose Chatman asking for the receipts. Chatman
claimed at first that she could not find her check stubs and
then stated that she had used a credit-exchange office but
could not remember where it was. Finally she remembered
where it was and then reported that they would not give her
a duplicate receipt. After several such conversations
requesting that she supply proof that the bill was paid,
Potekin said he became convinced she was giving him a
runaround and had not paid the matter and that Riviera
was going to become liable for the amount due since it had
not deducted any sums from her wages. He told Frey to
draw up a letter requiring her to show proof of payment or
be discharged.
According to Potekin, shortly before this instruction to
Frey, he had met with Chatman in the office and asked if
she had brought the receipt. She told him to stop harping on
it. He said he had to have proof or he would have to start
deductions from her pay. She asked if LPN's were that easy
to get and he replied he could not go through this again and
that he was not going to get hurt on the wage deduction.
She offered him a deal, to vote against the Union. He said
he wanted no deals, just for her to pay the people or he was
going to take it out of her salary. At that point he told Frey
to give her a letter with a deadline for bringing in the receipt
she claimed she had.
Potekin testified that Chatman was scheduled to work on
March 20 and when he saw her he asked if she had voted in
the election. She answered, no, that she had been fired. He
told her that he did not fire her. She said, you gave me a
letter and fired me. He told her no, that she had lied to him,
and that if she did not have a job she had fired herself by
not paying the amount that was due and owing. Deductions
were made from her checks to cover the amount and
Satisfaction of Judgment was received.
The evidence here indicates that Chatman's testimony is
false, that there were no conversations between her and
management about this debt between her January conver-
sation with Frey and the time she received the March letter
requesting the receipt. Frey's version of the interim
conversations appears plausible. Potekin may have embel-
lished his testimony a bit but essentially it contains the
truth of the matter and was corroborated by Respondent's
counsel, Jacobs, and by counsel for the Texaco Company
who had issued the wage-deduction order. It appears that
Chatman made no attempt to clear up the debt between the
time that she was notified of an amount still due and when
she left Respondent's employ.
From the evidence before me I can only conclude that
Chatman was terminated because she did not produce a
receipt showing that the debt had been cleared nor pay the
amounts due and owing under the wage-deduction order
nor make arrangements to do so at Respondent 's request. I
would therefore dismiss the 8(aX3) allegation as to Rose
Chatman.
J. The Objections to the Election
The Union filed broad objections to the election, a
number of which were not supported by any evidence
during this proceeding. However I have found above that
Respondent engaged in 8(axl) speeches , interrogations,
and promises of benefit to employees from the time the
demand was made until shortly before the election. These
matters which are also alleged as objections to the election,
I have found are substantiated and violative of Section
8(a)(1) and I conclude and find that they are sufficient to
set the election aside. I would therefore recommend that the
results of the election held on March 20, 1969, be set aside.
K. The Refusal To Bargain Allegations
Joint Exhibit I is a payroll listing of Respondent's
employees of January 9 (date of the demand) and contains
37 possible inclusions in the unit. Of this number General
Counsel would exclude Olga Brown and Mrs. Betty Frey,
while Respondent would include them and exclude Pearl
Green as a supervisor. General Counsel would include
Green contending she was not a supervisor at the crucial
times.
I have concluded that Betty Frey should be excluded
from the unit and Olga Brown and Pearl Green included.
1. Betty Frey
On Joint Exhibit 1, Betty Frey is listed as an occupational
therapist. Respondent stated that half her time was spent in
assisting patients such as by reading to them, procuring
things for them, and assisting them with games. The
balance of her time was spent in checking the patient-care
records maintained at the nursing station desk to ascertain
that the records contained all the information required by
various health agencies such as Medicare. She could not
change the records but wrote notes to the appropriate nurse
calling attention to the record deficiencies so that might be
changed.
Betty Frey is Assistant Administrator Herman Frey's
wife and as noted above, they live across the street from the
Home. Mrs. Frey has some young children and according
RIVIERA MANOR NURSING HOME, INC. 819
to Gus Potekin, she is usually at home when her children
are there. She has no fixed hours for work, but works at her
own discretion , sometimes during the day and sometimes at
night, but does punch a timecard. She receives a flat salary
of $100 per week whether she works no hours or as many as
40, but she usually averages 20 hours a week. When her
husband took a 2-week vacation, she accompanied him and
was paid for the 2-week period. All other employees except
management receive only a 1-week vacation.
From this summary of her hours, pay duties, and
independence it is clear that Betty Frey is a clerical
employee in a quasi-managerial position, closely allied to
management . She does not wear a uniform and has no
common work interests with unit employees. She should be
excluded from the unit.
2. Olga Brown
Olga Brown is listed on Joint Exhibit 1 as a licensed
practical nurse (LPN). The General Counsel's position is
that her duties were more supervisory and he felt she could
not operate as an LPN in Illinois since she was only
registered in California. Whether Illinois State law
permitted her to operate uncertified by the State as an LPN
or not , the facts are that her duties at Respondent were
essentially those of an LPN. As a long-time employee of
Gus Potekin she undertook additional duties as well. She
had worked with Gus Potekin as an LPN at the
Fountainbleu home before coming to Riviera in 1967,
where she set up the supply room and the system for
dispensing supplies. She is married to a railroad man and
has no children and made herself available for substantial
overtime work. Because her home was some distance away
in Chicago and because she worked so much overtime,
Potekin allowed her the consultation room for her
overnight use. By this device she did not have to travel the
long distance late at night and early in the morning and
Riviera was able to have extended use of her services.
At Riviera she was originally compensated on an hourly
basis of $1.75. Gus Potekin testified that because of her
great amounts of overtime he offered her a flat monthly
rate of $450 in 1968, which was later raised to $500 per
month. The other LPN's are paid on an hourly basis,
ranging from $2 to $2.30 per hour. If Olga Brown's pay rate
were based on a 48-hour week she would be compensated at
about $2.40 per hour, but the testimony establishes that she
averaged between 60 and 80 hours per week, so her
compensation is actually below that of other LPN's on an
hourly basis.
She testified that because of her close association with
Gus Potekin the girls ask her to make requests to him for
them , such as increases , days off , vacations , etc., and she
makes the requests to Potekin or Frey and gives the
response to the individuals.
Most of the General Counsel witnesses testified that they
were interviewed for employment by Olga Brown and in
most instances it was she who told them they were hired.
However, practically all of this testimony was compatible
with Respondent's testimony that Olga Brown did not have
the authority to hire but was used on occasion to interview
people to see if they had the qualifications needed by
Respondent . She would then discuss the person with Frey
or Potekin who would tell her whether to hire the person or
not. Respondent maintained that she was merely a
messenger in such instances.
Olga Brown testified that she had never hired or
discharged anyone or given employees time off , but had
merely passed requests or information to Frey or Potekin,
received an answer , and given the answer to the individual.
Further one of General Counsel 's witnesses testified that
prior to the initiation of the union campaign , Herman Frey
in a meeting of employees said that Olga Brown was not a
boss, that the employees had to take orders from him and
not from Olga Brown regarding days off, etc., and that her
authority was limited to the authority of an LPN.
Other General Counsel 's witnesses testified that Olga
Brown made out the work schedules for the week. She,
Frey, and Potekin testified specifically that she never made
out a work schedule , that the work schedules were only
prepared by Frey or the director of nursing, and that the
most she would have done would have been to copy
something they had prepared. Olga stated she prepared
schedules for patient medication for the ensuing month and
it could have been those forms that the General Counsel
witnesses saw her prepare.
There was testimony that on one occasion she told an
employee to punch out and the person was fired . But there
is countervailing testimony that in each instance after she
had reported an employee 's infraction to Frey or Potekin,
Frey or Potekin interviewed the employee and determined
what had happened and individually made the decision
whether or not to discharge the employee.
Because of her close relationship to Potekin there is an
aura of managerial authority about Olga Brown , but it is
clear from the weight of testimony that she does not possess
the type of authority (other than LPN authority) which
would label her as a supervisor within the meaning of the
Act. She might be thought of as a managerial conduit in
passing requests and complaints to management and
answers to employees , and if I were to find she made the
8(a)(1) statements attributed to her by Carey Kennedy, I
would hold management responsible for such conduct.
However Kennedy's testimony did not impress me, as it
seemed out of context and she was unable to relate the
statement to any part of a conversation . I credit Brown's
denial of Kennedy's statement.
I conclude and find that Olga Brown should be included
to the unit since she is an LPN and works as such and this
group is included in the unit . Her authority does not extend
to the prohibited supervisory level and she has a
community of interest with the other employees in the unit.
Like Pearl Green, discussed below, Olga Brown was an
older trusted employee given some added duties because of
that status and her experience in Respondent's
organization.4
3. Pearl Green
Pearl Green testified that she was employed as a cook
shortly after Riviera opened and while there were only two
4 See Wilson Furniture Company, 181 NLRB No 14
820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
patients. She was told then that she had charge of the
kitchen and was to prepare the meals according to the
menus specified by the dietician and was to be sure that the
kitchen was kept in proper order. As the volume of patients
increased additional kitchen help was needed. On Joint
Exhibit I Pearl Green is classified as a cook receiving a pay
rate of $2 per hour. The other kitchen help received from
$1.25 to $1.35 per hour.
At the time of the demand (January 9) besides Pearl
Green there were five others assigned to the kitchen, which
is open from 6 a.m. until 8 p.m., 7 days a week. Two
employees reported at 6 a.m. to prepare and serve breakfast
and worked until 2 p.m. Pearl Green regularly worked from
10:30 a.m. until 7:30 p.m. and would see to the preparation
of the lunch and evening meals. The food was generally
cooked in advance and needed only to be heated up for the
day she was off. Her authority included seeing that the food
was properly cooked, on time, and in accordance with the
dieticians specifications, that the dishes and trays were
washed and the trays prepared. The food was ordered on a
monthly basis by Frey, and milk and dairy products were
delivered to the Home during the week. If she needed
additional groceries she could order them.
She testified that she attempted to train the kitchen help
to cook so that if the kitchen were short handed they could
assist or if by themselves they would know what to do. If
someone wanted to be off she would do the work of that
employee, but if employees were not coming in or wanted
to be off they were supposed to get permission from Frey or
Potekin.
The Home has a contract with a dietician who prepares
all the menus on a weekly schedule and meets and discusses
the menus with Pearl Green impressing on her the necessity
for following the menus precisely for diabetics, etc., and
instructing her in the various aspects of nutrition.
Pearl Green testified that there was a difference between
the way she bossed the people around at the time of the
hearing, when they had eight people working in the kitchen,
and in the way she ran it in December and January. She
said the main distinction is that formerly she did a good bit
of the work herself, whereas now she told the employees
what to do and had assistant cooks.
Respondent conceded that Pearl Green was somewhat
temperamental and occasionally got in disputes with other
employees, reporting to management that she could not
work with them. Gus Potekin stated that they would usually
dismiss the other employee because he felt that Pearl Green
was a good cook and he did not want to lose her services,
while he could find other kitchen help at $1.25 per hour. A
number of the kitchen employees were recommended by
her and on one occasion she put a girl to work in the
kitchen before Frey had an opportunity to interview her.
Respondent, knowing that the applicant would have to get
along with Green, usually accepted her recommendation as
to employees, but there were occasions when employees
were hired without her recommendation and Green was
told to put them to work. In all instances management
independently checked the person's background and
references before the final approval of the applicant.
In deciding whether Green should be excluded as a
supervisor or included in the unit, the nature of her job,
duties, and authority at the time of the demand is
controlling here . It seems evident from the above summary
that in December and January she acted more as a leadman
than as a supervisor. Unlike the cook in Sea Life,
Incorporated supra, Pearl Green did not schedule hours of
work or change work schedules, award overtime or grant
time off. Employees who called in were referred to Mr. Frey
and not to her. Her principal duty was to keep the kitchen
employees working and within the area of her discretion she
did so. Her pay rate was higher than other kitchen
employees but lower than others in the unit. She possessed
some indicia of supervisory status, but I conclude that it
was minor and her capacity was that of a leadman or
strawboss.
I conclude and find that Pearl Green during the critical
period was not a supervisor and should be included in the
unit as composed at that time.
4. Composition of the unit on January 9; and
undisputed authorization cards
From the above conclusions, I find that the unit on
January 9 consisted of 36 employees, so that to represent a
majority of the unit employees, the Union would have
needed at least 19 valid authorization cards.
The testimony establishes that the authorization cards
were signed around Christmas 1968 and, following the
demand meeting on the morning of January 9, the Union
filed the petition herein that afternoon with supporting
authorization cards. The petition and the supporting cards
were time-stamped by the Regional Office when the
petition was filed.
Respondent did not contest the authenticity or validity of
the 13 authorization cards introduced in evidence for
Barbara Reynolds, Karie Fulwiley, Mary Scarbrough,
Mary Sullivan, Dorothy Nelson, Mary Harrison, Betty
Luckett, Ida Perkins, Rose Chatman, Loyal Moore, Mary
Sweatt, Alice Shenarult, and Johnie Mae Haley.
Respondent contested the validity of the cards of Pearl
Green and Brenda Curtis on the basis that it felt Pearl
Green was a supervisor and might have influenced Brenda
Curtis to sign a card. Having decided that Pearl Green is
not a supervisor, Respondent's contention as to Pearl
Green fails and her card will be counted. Respondent
further contended that from her testimony Brenda Curtis
may have thought Pearl Green was a supervisor. Respon-
dent contends that if an employee thinks another employee
might be a supervisor, any card that person signs at the
request of the putative supervisor is a nullity.
Brenda Curtis testified that Pearl Green gave her a union
card and said they were trying to bring the Union to a head.
She stated Pearl Green was the head cook and told the
employees in the kitchen what to do.
In the same vein licensed practical nurses who are at
times charge nurses tell the other LPN's and nurses' aides
what to do on the floor, but that does not make them
supervisors nor does it make the cards solicited by LPN's
from nurses' aides a nullity. The fact is that the individual is
not a supervisor within the meaning of the Act . Since Pearl
Green was not a supervisor at the critical time, there is no
taint to Brenda Curtis' card and the card is genuine and will
be counted.
RIVIERA MANOR NURSING HOME, INC.
Annie Nelson was deceased at the time of the hearing.
General Counsel and Respondent in their briefs discussed
the testimony of Annie Nelson's son as to whether her card
was genuine. However, NLRB Field Examiner Alexander
testified that he had secured a subscribed and sworn
affidavit from Annie Nelson on June 6, 1969, which he
identified. In this affidavit Annie Nelson declared that she
had signed the union authorization card appended to it
after Julia Williams gave her the card on December 24,
1968. The affidavit recounted that she was told by Julia
Williams that if she wanted to join the Union to sign the
card and that she signed it but did not date it and returned
it to Julia Williams in late December 1968. I conclude and
find on the basis of this subscribed and sworn affidavit that
the card submitted for Annie Nelson is genuine and should
be counted towards the Union's majority showing.5 None
of the parties sought to question Julia Williams regarding
the procurement of the card.
General Counsel produced considerable testimony in an
attempt to establish that Alicia Washington and Victoria
Washington were employed by Respondent prior to
December 24, the date on which their authorization cards
were apparently signed. In contravention Respondent
produced oral testimony and documentary evidence to
establish that neither of the girls was employed on
December 24, but that they were employed several days
later. It is uncontested that both were employed on the
demand date, January 9.
Viewelta Smith testified that she left work on December
16, because she was sick and after staying off returned to
work in late December. Respondent offered testimony that
Smith left on December 16, after being warned that if she
did she would be fired. Respondent produced her timecard
to establish that it contained a notation that she was
discharged on December 18, and a further notation that she
was rehired on December 29, 1968, in furtherance of its
position that she was not an employee on the date on her
card and that it should not be counted towards the Union's
majority. Again there is no contest she was employed on the
date of demand.
Elaine (Eleanor) Beeks testified that she placed all of the
writing including her signature on her union authorization
card except the date thereon which is December 20. She
testified that she did not remember whether she signed the
card before or after Christmas.
As to the two Washingtons and Smith, Respondent
contends they were not employees at the time they signed
their cards and therefore the cards should not be counted.
Regarding Beeks, Respondent contends that since she does
not know when she signed the card, conceivably it could
have been signed after the date of the demand and that the
card should not be counted towards the Union's majority
status.
In regard to the question of whether Beeks card was
dated before or after it was received with the petition in the
Regional Office, General Counsel produced Julia Dencker,
the supervisor of the mail, file, and records unit of the
NLRB Regional Office, who testified that she had been
employed by the Board for 22 years and had been the
5 Annie Nelson 's timecard is date -stamped as received by the NLRB
Regional Office at 2 22 p m January 9
821
supervisor of this department since 1959 . She testified that
when authorization cards were received with a petition,
they are time-stamped in the office and the cards are
examined to ascertain whether they are dated or not. Any
authorization card which is not dated is stamped
"Undated" in the place on the card for a date. This
procedure is followed in the Regional Office to assure that a
card cannot be returned and used to support a petition, at a
later date . Mrs. Dencker also testified that the authoriza-
tion cards are retained by the region during the time the
case is open and it is only after the conclusion of a case that
the cards may be returned to the petitioning union.
This testimony establishes that the cards which were
received on January 9 by the Region in support of the
petition remained in the Region 's possession . The cards for
the two Washingtons, Smith , and Beeks bear Regional
Office time stamps on the reverse side showing that they
were received in the Regional Office at either 2:22 or 2:23
p.m., January 9. This physical evidence together with the
other testimony establishes that on January 9, the date of
the demand , the Union had in its possession and gave to the
Regional Office in support of the petition these four
authorization cards as well as the others which were
received by the Regional Office . Thus it would appear to be
immaterial whether the employees were actually employed
on the date they signed the union cards or whether they
signed the cards on the date that they said. The fact is that
they were employees on the date of demand and the Union
had in its possession signed authorization cards from each
of them authorizing the Union to act as their bargaining
agent on the date the Union made its demand and filed its
petition with the Board .6 Therefore I will count each of
these cards towards the Union 's status.
Respondent's objections to 7 authorization cards have
been resolved against Respondent and I find that with the
13 uncontested cards the Union represented 20 employees
of a total of 36 unit employees when it made its demand for
recognition , and thus represented a majority of Respon-
dent's employees in an appropriate unit.
Having determined above that Respondent 's actions
found violative of the Act are sufficient to sustain the
objections to the election , and having recommended that
the election be set aside , there remains the question of
whether the violative acts of Respondent were so serious
and pervasive as to render useless a choice by Respondent's
employees in a second election and require as a fitting and
necessary remedy the imposition of a bargaining order.
In N. L. R. B. v. Gissel Packing Company, 395 U.S. 575, 614,
616, the Supreme Court approved the Board's authority to
issue a bargaining order ". . . in less extraordinary cases
marked by less pervasive practices which nonetheless still
have the tendency to undermine majority strength and
impede the election processes ." In such a situation the
Board must examine the nature and extent of the
employer 's unlawful conduct and ascertain the likelihood
that the use of traditional remedies would ensure a fair
election . The Court instructed the Board to decide whether
.. even though traditional remedies might be able to
ensure a fair election there was insufficient indication that
6 See Polyurethane Products Company, Inc. 168 NLRB No 20
822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
an election . . . would definitely be a more reliable test of
the employees ' desires than the card count taken before the
unfair labor practices occurred."
In resisting a bargaining order Respondent alleges there
has been a heavy turnover of employees in the interim and
that to order it to bargain with the Union would be to order
the Union to bargain for employees who have never
authorized the Union to act for it. The Board answered this
argument in New Alaska Developing Corp., Alaska Housing
Corporation, 180 NLRB 150, that "It is now well settled that
the Board is not precluded from issuing a bargaining order
even though a great length of time and a substantial
turnover of personnel has occurred since the commission of
the unfair labor practices. N.L.R.B. v. Katz, 369 U.S. 736;
Franks Bros. Co. v. N. L. R. B., 321 U.S. 702; N. L. R. B. v. P.
Lorillard Co., 314 U.S. 512." The Supreme Court reaffirmed
this authority in Gissel Packing Company, supra, stating that
"If the Board could enter only a cease-and-desist order and
direct an election or a rerun , it would in effect be rewarding
the employer and allowing him 'to profit from [his] own
wrongful refusal to bargain' ...." In this case I conclude
and find that the nature of Respondent 's unfair labor
practices are such as to prevent the holding of a free and
fair election.
The Union on January 9 was entitled to recognition and
bargaining, which Respondent refused and between that
date and the date of the election Respondent committed the
various acts above found violative of Section 8(a)(1) which
were intended to and did undermine the Union's majority
status.?
Respondent's violative acts commenced the day the
Union made its demand for recognition when corporate
officer and stockholder Irving Potekin questioned employ-
ees as to what started the union , promised that Respondent
would grant them benefits if they did not select the Union
as their bargaining agent , and threatened that even if they
did select the Union as their bargaining agent Respondent
would be able to buy off the Union to the employees'
detriment. This initial response followed by the 8(a)(I)
activities of the chief stockholder and corporate officer Gus
Potekin detailed supra completes the picture of Respondent
seeking to avoid its duty to bargain collectively by
attempting to undermine the Union 's majority status. This
activity coupled with the long-lasting effects of fulfilling the
promises of wage raises , paid holidays , and an insurance
program to employees after 2 years of vague promises when
a union was not in the picture would inevitably disturb the
atmosphere surrounding an election and would render
impossible a free and impartial judgment by the employees
as to whether they wished to have a union represent them.
They would have in their memories, or would have been
told by other employees, that Respondent had made
preelection promises and kept them after the Union was
defeated . The fact of these promises and their enjoyment of
those benefits would be a perpetual reminder of that fact
and would provide an uneven balance in any future
election, which makes the free choice of the employees as
shown by their authorization cards a more reliable guide to
their desires . I therefore recommend that a bargaining
order be imposed and that the petition be dismissed.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section II,
above, occurring in connection with Respondent 's opera-
tions described in section 1, above , have a close , intimate,
and substantial relationship to trade , traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
IV. THE REMEDY
Having found that Respondent engaged in the unfair
labor practices set forth above, I recommend that it cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act as follows:
Respondent since on or about January 9, 1969, has at all
times refused and still refuses to bargain with the Union as
the representative of its employees in an appropriate unit. I
therefore recommend that Respondent , upon request,
bargain collectively with the Union in good faith and, in the
event that an understanding is reached , embody such
understanding in a signed agreement.
Having also found that Respondent sought to undermine
the Union's majority status by making promises of benefits
if the employees rejected the Union as their collective-
bargaining agent , by threatening to deal underneath the
table with the Union to the employees' detriment if they did
choose the Union as their collective-bargaining agent, by
indicating to the employees that it knew of their union
activities , by interrogating employees concerning their
union activities and the union sentiments of others, by
threatening employees that they would lose their job if they
struck, by granting promised benefits following the defeat
of the Union in the election and thereby having rejected the
principle of collective-bargaining , and by acting to avoid
collective bargaining , Respondent , by such action, has
invaded its employees ' rights under the Act. I am of the
opinion that Respondent may commit further unfair labor
practices, having by the actions detailed herein shown its
proclivity for so doing . Since it is a part of the purpose of
the Act to prevent the commission of unfair labor practices,
I recommend that Respondent be placed under a broad
enjoinder to cease and desist from infringing upon the
rights guaranteed its employees by the Act in this or any
other manner . On the basis of the foregoing findings and
the entire record, I make the following:
CONCLUSIONS OF LAW
1. Riviera Manor Nursing Home , Inc., is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. All nurses' aides , licensed practical nurses, and
dietary and housekeeping employees of Respondent,
exclusive of office clerical employees, professional employ-
ees, registered nurses , doctors, guards , and supervisors as
defined in the Act, constitute a unit appropriate for the
7 See Atlas Engine Works, Inc., 181 NLRB No. 13.
RIVIERA MANOR NURSING HOME, INC. 823
purposes of collective bargaining within the meaning of
Section 9(b) of the Act.
4. At all times since January 9, 1969, the Union has
been, and is now, the exclusive representative of the
employees in the said unit for the purposes of collective
bargaining within the meaning of Section 9(a) of the Act.
5. Respondent, by refusing to bargain with the Union
on and after January 9, 1969, as the exclusive representative
of its employees in the appropriate unit, has engaged in and
is engaging in unfair labor practices affecting commerce
within the meaning of Sections 8(a)(5) and (1) and 2(6) and
(7) of the Act.
6. Respondent has engaged in and is engaging in unfair
labor practices affecting commerce within the meaning of
Sections 8(a)(1) and 2(6) and (7) of the Act by:
(a) Threatening its employees that if they selected the
Union as their collective-bargaining representative Respon-
dent would deal surreptitiously with the Union to the
employees' detriment.
(b) Indicating to the employees that it knew of their union
activities, thereby giving the impression that their union
activities were under surveillance.
(c) Interrogating employees concerning their union
activities and sentiments and the activities and sentiments
of other employees.
(d) Promising the employees wage, insurance, and
holiday benefits if they did not select the Union as their
collective-bargaining representative.
(e) Threatening employees that they would lose their jobs
if they struck.
(f) Granting the employees wage, insurance, and holiday
benefits after the employees had rejected the Union as their
collective-bargaining representative in an election.
RECOMMENDED ORDERS
On the basis of the foregoing findings of fact and
conclusions of law and the entire record in this case
considered as a whole , I recommend that Riviera Manor
Nursing Home , Inc., of Chicago Heights, Illinois, its
officers , agents, successors , and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively in good faith
concerning rates of pay , hours of employment, and other
terms and conditions of employment with Council 19,
American Federation of State , County, and Municipal
Employees , AFL-CIO, as the exclusive representative of
the employees in the appropriate unit described in the
section above entitled "Conclusions of Law."
(b) Threatening employees that if they selected the Union
as their collective -bargaining agent Respondent would deal
surreptitiously with the Union to the employees ' detriment.
(c) Indicating to the employees that it knew of their union
activities and sentiments.
(d) Interrogating its employees as to their union activities
and sentiments and the union activities and sentiments of
other employees.
(e) Promising its employees wage, insurance , and holiday
benefits if they did not select the Union as their collective-
bargaining representative.
(f) Threatening employees that they would lose their jobs
if they struck.
(g) Granting its employees wage, insurance , and holiday
benefits after they had rejected the Union as their
collective-bargaining representative in the election held on
March 20.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act.
(a) Upon request, bargain collectively in good faith with
the above-named Union as the exclusive representative of
all the employees in the appropriate unit and embody in a
signed agreement any understanding reached.
(b) Post at its Chicago Heights, Illinois, establishment,
copies of the attached notice marked "Appendix."9 Copies
of said notice, on forms provided by the Regional Director
for Region 13, after being duly signed by Respondent's
representative, shall be posted by the Respondent immedi-
ately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or covered
by any other material.
(c) Notify the Regional Director for Region 13, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.io
Under the terms of the order directing a hearing issued by
the Director of Region 13 on August 4, 1969, Case
13-RC-11744 is severed from this proceeding and as I have
stated above it is recommended that the election held
pursuant to that case be set aside and the petition
dismissed.
" In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, recommendations, and Recommended Order herein
shall, as provided in Section 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
9 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "POSTED
BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD"
shall be changed to read "POSTED PURSUANT TO A JUDGMENT OF
THE UNITED STATES COURT OF APPEALS ENFORCING AN
ORDER OF THE NATIONAL LABOR RELATIONS BOARD"
10 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read. "Notify the Regional Director for
Region 13. in writing, within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
Following a trial in which the Company, the Union, and the
General Counsel of the National Labor Relations Board
participated and offered evidence, it has been found that
we violated the Act. We have been ordered to post this
notice and we intend to carry out the order of the Board,
and abide by the following:
WE WILL bargain collectively in good faith, upon
request, with Council 19, American Federation of State,
County, and Municipal Employees, AFL-CIO, as the
exclusive representative of all employees in the
824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bargaining unit described below with respect to rates of
pay, wages, hours of employment, and other terms and
conditions of employment, and, if an understanding is
reached, we will sign a contract containing such
understanding. The bargaining unit is:
All nurses' aides, licensed practical nurses, dietary and
housekeeping employees, excluding office clerical
employees, professional employees, registered nurses,
doctors, guards, and supervisors as defined in the Act.
WE WILL NOT threaten our employees that if they
select the Union as their collective-bargaining agent we
will deal with the Union under the table to their
detriment.
WE WILL NOT (indicate to our employees that we
know of their union sentiments and activities.
WE WILL NOT ask our employees about their union
activities and sentiments or the activities and sentiments
of other employees.
WE WILL NOT promise wage, insurance, and holiday
benefits to the employees if they do not select the Union
as their collective-bargaining representative.
WE WILL NOT threaten our employees that they
would lose their jobs if they struck.
WE WILL NOT grant wage, insurance, and holiday
benefits to our employees because they reject the Union
as their collective-bargaining representative.
All our employees are free to become or remain union
members.
Dated By
RIVIERA MANOR
NURSING HOME, INC.
(Employer)
(Representative ) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office, 881
U.S. Courthouse and Federal Office Building , 219 South
Dearborn Street, Chicago, Illinois 60604, Telephone
312-353-7572.