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Red Oaks Nursing Home Inc. v. National Labor Relations Board

decided: October 22, 1980.


On Petitioner for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board

Before Swygert and Pell, Circuit Judges, and Baker, District Judge.*fn*

Author: Pell

Red Oaks Nursing Home, Inc., petitions for review of an order of the National Labor Relations Board. The Board has cross-applied for enforcement. The decision and order of the Board appear at 241 N.L.R.B. No. 65 (1979). The controversy arises from the efforts of the Retail Clerks Union, Local No. 37, to organize the service and maintenance workers at the Red Oaks Nursing Home in Michigan City, Indiana. The Board found that during the organizational campaign Red Oaks engaged in certain conduct which interfered with its employees' rights in violation of Section 8(a)(1) of the National Labor Relations Act. The Board concluded that this conduct constituted an unfair labor practice and justified setting aside the results of the representational election in which a majority of the employees had voted not to elect the union as their bargaining representative.*fn1 The Board, however, did not stop at setting aside the election. It also entered an order requiring, upon demand by the Clerks Union, that Red Oaks bargain with the union as the exclusive bargaining agent of its employees.

The Union's organizational campaign commenced in July 1977 and ended in October of that year when the election was held. During this time, the Board found, three management agents-Papunen, Dipert and Barth-engaged in conduct violative of Section 8(a)(1) by interrogating employees about their union activities and the union activities of others, creating the impression of surveillance of those activities, threatening reprisals because of those activities, and generally indicating to employees that the union had and would continue to lose employees' benefits and that selection of the union as a bargaining agent would be futile. We, of course, must respect these findings if they are supported by substantial evidence in the record as a whole.

We examine first the questions raised about the status of two of Red Oaks' employees. Red Oaks contends that Julia Johnson, the object of several of the employer's allegedly coercive remarks, is really a supervisory employee. Conversely, Red Oaks contends that Lorraine Barth, who allegedly engaged in some of the coercive conduct, was not a management agent whose conduct may be attributed to the employer.

The Board concluded that Johnson, notwithstanding her title as "assistant food supervisor," was not a supervisor within the meaning of Section 2(11) of the Act. We hold that substantial evidence supports this finding. Employee Johnson did have limited supervisory powers over other cooks during those times when the regular supervisor was absent and she did receive higher pay than the cooks. Nevertheless, her powers to direct other employees were narrow. She had no authority to discipline or settle the grievances of other employees. Unlike other regular supervisors, she was not salaried. Indeed, the employer originally stipulated to her inclusion in the bargaining unit, and she was permitted to vote in the election without challenge. We believe the evidence in the record fairly supports the Board's finding that Johnson exercised no substantial power in areas where independent judgment was required and that she was properly considered a lead person or "straw boss."

The question as to the status of employee Barth is a closer one. The Board found that insofar as the representational campaign was concerned, Barth was regarded by employees as a representative of the employer. Although the record shows that most of Barth's duties were clerical in nature and, indeed, some employees regarded her as merely the payroll clerk, she often did make contact with employees with respect to pay, insurance, and disciplinary matters. She also had the title of personnel director. When Red Oaks became aware of unionization efforts, and management meetings were called to discuss "do's and don'ts," Barth was invited to attend because of her frequent contact with employees on employment matters. Under these circumstances, we believe the Board could reasonably conclude that the employer was responsible for Barth's conduct, even though we query whether we would have reached the same conclusion were we making the decision in the first instance.

As to the question of whether Red Oaks violated Section 8(a)(1), we find that substantial evidence supports the Board's conclusion that several supervisors or agents of the employer engaged in conduct which would tend to coerce employees in the exercise of their rights guaranteed by the Act. We cite as examples some of what we regard as the most obvious violations of Section 8(a) (1). Virginia Papunen, the Director of Nursing, told employee Anderson, "I'll tell you one thing. If that union comes in here, I'm going to make it hard for you girls." The coercive tendency and threat of reprisal of statements such as this are clear. Less direct threats of reprisal were also made by dietary supervisor Dipert and personnel director Barth. Papunen also inquired about certain union activities by another employee and told her, "Well, we know about all the (union) meetings and the parties that have been going on. ... We know everything the union is doing. You girls don't have to keep hiding it from us." Notwithstanding the fact that union organizing activities were fairly well known around the work place, we cannot disagree with the Board's conclusion that statements such as this created the impression of employer surveillance of the employees' union activities. Isolated comments to individual employees made by Dipert and Barth may well have created a similar impression. The evidence is less compelling as to the other charges such as that of soliciting grievances with the implication that they would be adjusted if the union were defeated and of creating the impression that benefits had been withheld because of the union or would be lost if the union were selected as the employees' representative. Nevertheless, after giving due deference to the Board's expertise to assess the conversations in the context in which they occurred and to judge their probable effect upon the employees, we are not prepared to disturb the Board's findings as unsupported by substantial evidence. We therefore deny the petition and enforce the order insofar as its findings concern the Section 8(a)(1) violations.

Having determined that Red Oaks violated Section 8(a)(1) of the Act, the Board issued a cease and desist order, required posting of notices, and also concluded that a bargaining order was appropriate under NLRB v. Gissel Packing Co., 395 U.S. 575, 89 S. Ct. 1918, 23 L. Ed. 2d 547 (1969). The Board has confined its defense of the bargaining order to that part of the Gissel decision which approves of bargaining orders in cases marked by "less pervasive (unfair labor) practices which nonetheless still have the tendency to undermine majority strength and impede the election process," 395 U.S. at 614, 89 S. Ct. at 1940, and does not argue that Red Oaks' conduct was so outrageous or exceptional as to merit a bargaining order without a showing of union majority support.

Red Oaks submits that the union never had the support of a majority of employees and that the entry of the bargaining order was therefore not proper as a remedy for the unfair labor practices. The Board found that, as of August 22, 1977, 43 of the 78 employees*fn2 signed valid authorization cards. Red Oaks argues that four of the authorization cards should not be counted in determining the union's majority status because the employees were misinformed by union representatives as to the purpose of the cards. Furthermore, another five cards are invalid, according to Red Oaks, because they were solicited by Johnnie Anderson, who never saw the employees sign the cards. Red Oaks contends that Anderson is not credible as a witness and her testimony establishing the validity of the cards is not worthy of belief.

In determining whether the authorization cards demonstrate majority support for the union, the Board "... must establish that the signer of the card did, in effect do what he would have done by voting in a Board election." NLRB v. J. M. Machinery Corp., 410 F.2d 587, 591 (5th Cir. 1969), quoted in Medline Industries, Inc. v. NLRB, 593 F.2d 788, 793 (7th Cir. 1979). The cards signed by the employees at Red Oaks had the following words printed on them:


I, the undersigned employee of (Company) authorize the Retail Clerks International Association (RCIA) Local # 37 to act as my collective bargaining agent for wages, hours and working conditions. I agree that this card may be used either to support a demand for recognition, N.L.R.B. election or a signature comparison, at the discretion of the Union.

Of course, when the terms of the card are unambiguous, as they are here, the authorization must be counted, unless its meaning "is deliberately and clearly canceled by a union adherent with words calculated to direct the signer to disregard and forget the language above his signature." Gissel, supra, 395 U.S. at 606, 89 S. Ct. at 1936. The record before the Board contains some testimony tending to cast doubt on the understanding of the employees signing the first group of four authorization cards challenged here. Doreen Moore, for example, testified that a union representative told her that the card was "To form a committee so there could be an election." Although this incomplete explanation of the card approaches the outer limit of valid solicitation, the union representative did not refute the unambiguous language of the card, and the Board's determination of the validity of Moore's card withstands challenge. Furthermore, although another employee, Ella Dennis, signed a card under the impression that the sole purpose of her signature was to obtain an election, she based this belief on what the President and Business Manager of Red Oaks, ...

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