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National Labor Relations Board v. Daybreak Lodge Nursing and Convalescent Home Inc.

decided as amended december 5 1978.: October 17, 1978.

NATIONAL LABOR RELATIONS BOARD, PETITIONER
v.
DAYBREAK LODGE NURSING AND CONVALESCENT HOME, INC., RESPONDENT



ON APPLICATION FOR ENFORCEMENT OF AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD CASE NOS. 4-CA-7846 and 4-RC-11916

Before Adams, Weis and Higginbotham, Circuit Judges.

Author: Higginbotham

Opinion OF THE COURT

The National Labor Relations Board (Board) has filed suit pursuant to 10(e) of the National Labor Relations Act (Act), 29 U.S.C. § 151 Et seq., seeking enforcement of its order issued against Daybreak Lodge Nursing and Convalescent Home, Inc. (Home). The Board found the Home in violation of Sections 8(a)(1)*fn1 and 8(a)(5)*fn2 of the Act, 29 U.S.C. §§ 158(a)(1) and (a)(5). We will enforce the order although we make no decision as to the existence of an 8(a) (5) violation.

I.

The Retail Store Employees Union, Local 1349 (Union), began an organizational campaign among the Home's service and maintenance employees in the fall of 1975. On November 11, 1975 the Union advised the Home that the Union represented a majority of the employees in an appropriate unit and demanded to be recognized as the bargaining representative of the employees in that unit; however, the record indicates that the Union did not have a card majority as of this date. The Home made no response. On November 14, 1975, the Union filed a representation petition with the Board. On December 31, 1975, the Regional Director, after a hearing, directed that an election be held. The appropriate unit was defined as following:

All full-time and regular part-time service and maintenance employees at Employer's nursing home at Wilmington, Delaware, but excluding all registered nurses, licensed practical nurses, office clerical employees, technical employees, professional employees, guards and supervisors as defined in the Act.

An election was held on January 29, 1976 with thirty-one employees voting in favor of the Union and thirty-four voting against. On July 13, 1976, the Regional Director issued an unfair labor practice complaint against the Home. On February 4, 1976, the Union filed objections to the election and an unfair labor practice charge against the Home. The Union's and Board's charges were consolidated for hearing before an Administrative Law Judge.

The ALJ found that Leonard Leeds, the Home's administrator, committed numerous violations of 8(a)(1). These acts included: 1) threats to fire employees and subcontract their work if the Union became their representative; 2) threats to fire employees who supported the Union; 3) withholding a scheduled wage increase to one employee because of the pendency of the Union organization drive; 4) coercive interrogation of an employee with regard to an affidavit submitted by that employee to the Board and 5) threats as to the consequences of having a union including violent and costly strikes and bargaining "from nothing."

The above violations were found by the ALJ to have "created an atmosphere of fear and coercion in the employee unit and precluded employee free choice in the election of January 29, 1976." (Opinion of the ALJ, Appendix, p. 368). Therefore, the ALJ recommended the setting aside of the election. In addition he recommended the issuance of a bargaining order. The ALJ found that "the Union had obtained a card majority shortly before the election on January 29, 1976. . . . Most of the cards were signed in November 1975, and another group was signed in middle and late January 1976." Id., p. 369 (footnote omitted). This majority was undermined by the Home's conduct as summarized above. The Board affirmed "the rulings, findings, and conclusions of the Administrative Law Judge" and "adopt(ed) his recommended Order." 230 NLRB No. 127.

The Home opposes enforcement of the Board order on the following grounds:

1. That substantial evidence on the record as a whole does not support the Board's finding of the violations of Section 8(a)(1);

2. That the bargaining order is invalid because the union failed to make valid demand for recognition, because the NLRB's mere adoption of the ALJ's findings and conclusion is improper and because the unfair labor ...


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