Americare-New Lexington Health Care Center

National Labor Relations Board - Board Decisions

Apr 14, 1995

316 N.L.R.B. 1226 (N.L.R.B. 1995)

1226
316 NLRB No. 184
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 On June 15, 1994, Administrative Law Judge Richard A. Scully
issued the attached decision. The Respondent filed exceptions and a
supporting brief.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d
363 (3d Cir. 1951). We have carefully examined the record and find
no basis for reversing the findings.
3 Brooks v. NLRB, 348 U.S. 96 (1954). Our dissenting colleague
cites Brooks in support of his view that the certification year rule
should apply only to a newly established collective-bargaining rela-
tionship. Neither Brooks nor Mar-Jac Poultry Co., 136 NLRB 785
(1962), limits the rule in this fashion. In fact, those cases make no
mention of, much less focus on any special need to protect and nur-
ture a new bargaining relationship. Both cases discuss reasons for
the rule that apply to the period after any election in which unit em-
ployees have resolved a question concerning representation by cast-
ing a majority of votes for a union. See Brooks, supra at 99–100,
and Mar-Jac, supra at 786–787.
Americare-New Lexington Health Care Center and
Bus, Sales, Truck Drivers, Warehousemen and
Helpers, Local Union No. 637, affiliated with
the International Brotherhood of Teamsters,
AFL–CIO. Cases 9–CA–29550 and 9–CA–30063
April 14, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND COHEN
The primary issue presented for Board review in this
case is whether the administrative law judge correctly
found that the Respondent violated Section 8(a)(5) and
(1) of the Act by failing to recognize and bargain with
the Union for a continuous full year after a majority
of the Respondent’s unit employees voted in a decerti-
fication election for continued representation by the
Union.1 The Board has considered the decision and
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions, as further discussed below, and to adopt the
recommended Order as modified.
After a majority of unit employees voted for the
Union in an initial representation election, the Board
issued a certification of representative on September 3,
1987. The parties negotiated a collective-bargaining
agreement, which was effective from May 1, 1988, to
April 30, 1991. A decertification petition was filed in
February 1991. The Union won the election.
On March 22, 1991, the Board issued a certification
of representative to the Union based on the results of
the decertification election. On May 2, after one bar-
gaining session, the Respondent withdrew recognition
from the Union. The Union filed an unfair labor prac-
tice charge alleging an unlawful refusal to bargain. By
letter dated June 24, the Regional Director for Region
9 advised the Respondent that he intended to issue
complaint unless the Respondent agreed to, inter alia,
recognize the Union and, upon request, meet and bar-
gain in good faith. The Respondent executed a settle-
ment agreement which the Acting Regional Director
approved on July 18.
Negotiations between the parties resumed on August
29. Bargaining continued until March 26, 1992, when
the Respondent again withdrew recognition from the
Union. The Respondent acted in reliance on a petition
signed by 45 of 74 unit employees and stating that
those employees no longer desired the Union’s rep-
resentation. Since that date, the Respondent has re-
fused to recognize and bargain with the Union. The
Respondent has also refused to provide relevant bar-
gaining information requested by the Union in a June
10, 1992 letter.
The judge concluded that any challenge to the
Union’s majority status was precluded for 1 year after
the Union’s March 22 certification. He further found
that the settlement agreement triggered an extension of
the Respondent’s bargaining obligation for a period of
4 months, the time between the May 2 withdrawal of
recognition and the resumption of bargaining on Au-
gust 29. Accordingly, he found that the Respondent
was not privileged to withdraw recognition from the
Union on March 26, 1992, regardless of its claimed
good-faith doubt of the Union’s majority status.
The Respondent has excepted to the judge’s applica-
tion of the certification year rule. It asserts that the
rule should apply only to initial certifications. The Re-
spondent also contends that the judge erred in finding
that the settlement agreement extended the certification
year even in the absence of express language to that
effect in the agreement. We find no merit in either ar-
gument.
The certification year rule promotes peace and sta-
bility in industrial relations by providing at least 1 year
from the date of certification of representation during
which parties can negotiate a collective-bargaining
agreement free from distraction.3 Although the rule
arose in the context of initial representation election
campaigns, there is no basis in policy or precedent for
limiting it to that context. As aptly stated by the judge,
decertification elections can be more disruptive than
initial campaigns to the collective-bargaining relation-
ship. There is at least as great a need for a guaranteed
postelection insular period in which the bargaining re-
lationship can stabilize and succeed. Accordingly, we
expressly affirm the Board’s longstanding practice of
applying the certification year rule in every instance in
which the Board certifies a union after a representation
election, regardless of whether the Board has pre-
viously certified that same union’s representative status
1227AMERICARE-NEW LEXINGTON HEALTH CARE CENTER
4 Contrary to the Respondent’s argument, there is no meaningful
distinction in this regard either between precomplaint or
postcomplaint settlements or between unilateral and bilateral settle-
ment agreements.
5 To remedy this violation, the judge recommended that the Re-
spondent be required to bargain for a period of 4 months, represent-
ing the hiatus in bargaining during the certification year after the Re-
spondent withdrew recognition on March 26, 1992. In accord with
Board remedial precedent, we find that a 6-month extension of the
certification year is necessary to remedy the effects of the Respond-
ent’s disruptions of negotiations. See Colfor, Inc., 282 NLRB 1173
(1987). Accordingly, we will modify par. 2(a) of the judge’s rec-
ommended Order to require the Respondent to bargain with the
Union for 6 months from the resumption of bargaining.
1 See Ray Brooks v. NLRB, 348 U.S. 96 (1954).
2 Id. at 100.
3 See Keller Plastics Eastern, 157 NLRB 583 (1966).
4 321 U.S. 702, 705–706 (1944).
for the same bargaining unit in a prior valid Board
election.
Consistent with the above principles and the Union’s
new certification, the Union should have enjoyed an
irrebuttable presumption of continuing majority status
for the full year following March 22, 1991. The Re-
spondent should have recognized and bargained with
the Union throughout this period. It failed to do so. In-
stead, the Respondent triggered a hiatus in bargaining
by withdrawing recognition on May 2, 1991. It settled
unfair labor practice charges protesting this conduct by
agreeing with the Region to ‘‘upon request, meet and
bargain with the Union . . . .’’
The judge found, and we agree, that this agreement
automatically triggered an extension of the certification
year regardless of whether the express language of the
agreement mentioned such an extension. By operation
of law, an employer’s promise to bargain in settlement
of a refusal-to-bargain charge entails a promise to bar-
gain for a ‘‘reasonable time.’’4 In situations where the
agreement settles charges alleging a refusal to bargain
during the certification year, the Board has defined the
reasonable time for bargaining by reference to the cer-
tification year and has extended that year to the extent
deemed necessary to restore lost bargaining time to the
aggrieved union. E.g., Straus Communications, 246
NLRB 846 (1976). To hold otherwise would permit an
employer to take advantage of its own failure to fulfill
a statutory obligation to engage in a full year of bar-
gaining without challenge to the incumbent union’s
representative status. As the Respondent withdrew rec-
ognition from the Union during the extended certifi-
cation year, it violated Section 8(a)(5) and (1) of the
Act.5
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent,
Americare-New Lexington Health Care Center, New
Lexington, Ohio, its officers, agents, successors, and
assigns, shall take the action set forth in the Order as
modified.
Insert the following as paragraph 2(a) and reletter
the subsequent paragraphs.
‘‘(a) Upon request, bargain with the Union as the
exclusive representative of all employees in the appro-
priate unit with respect to rates of pay, wages, hours,
and other terms and conditions of employment, for at
least 6 months from the date it resumes bargaining
with the Union as if the initial year of certification had
not expired, and embody any understanding reached in
a written agreement.
MEMBER COHEN, dissenting.
I do not agree that the ‘‘certification year’’ principle
applies when an incumbent union wins a decertifica-
tion election. The ‘‘certification year’’ principle is
based on the premise that a newly established collec-
tive-bargaining relationship should be given a period
of time in which to succeed, free from any attacks on
the existence of the relationship.1 Phrased differently,
the newly born child should be given a chance to
walk. Thus, for 1 year after certification, the Board
will not permit the raising of a question concerning the
majority status of the union. In essence, the value of
protecting the new relationship prevails over the value
of employee free choice.
My colleagues assert that there is no case support
for the above rationale. In fact, there is ample support.
As explained in Ray Brooks v. NLRB, 348 U.S. 96, the
‘‘certification year’’ rule began under the Wagner Act
and continued under Taft-Hartley. One of the key ele-
ments underlying the rule was the principle that ‘‘a
union should be given ample time for carrying out its
mandate . . . and should not be under exigent pressure
to produce hothouse results or be turned out.’’2 This
same principle applies to situations where the union
wins bargaining rights pursuant to a settlement agree-
ment, Board order, or voluntary recognition, albeit in
these circumstances the period of time is a ‘‘reasonable
period’’ rather than 1 year.3 In explaining those prin-
ciples in Keller, the Board cited Ray Brooks and
quoted Franks Bros. Co. v. NLRB,4 as follows:
[A] bargaining relationship once rightfully estab-
lished must be permitted to exist and function for
a reasonable period in which it can be given a fair
chance to succeed.
In the instant case, the Union was entitled to a cer-
tification year after it won the original election in Au-
gust 1987. The relationship was given a chance to suc-
ceed, and indeed it did succeed. A contract was agreed
upon, effective from May 1, 1988, to April 30, 1991.
However, by the end of that contract, the Union was
no longer a newborn infant learning how to walk. It
1228 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 See Poole Foundry & Machine Co., 95 NLRB 34 (1951), enfd.
192 F.2d 740 (4th Cir. 1951), cert. denied 342 U.S. 954 (1952).
1 The charge in Case 9–CA–29550 was filed on April 29, 1992,
and that the charge in Case 9–CA–30063 was filed on October 16,
1992.
2 The complaints were consolidated for hearing in an order dated
December 30, 1992.
had been the certified representative for approximately
3-1/2 years, and had achieved and administered a col-
lective-bargaining agreement. Thus, the principle fa-
voring free choice prevailed over the need to protect
the relationship. Accordingly, a question concerning
representation could be raised, and indeed it was
raised. The Board conducted a decertification election
in March 1991, and the Union was recertified on
March 22. As stated supra, this was not the birth of
a new relationship; it was the continuation of an estab-
lished relationship. Thus, a new certification year was
not created.
Respondent subsequently withdrew recognition on
May 2, 1991. The case was informally settled on July
18. Bargaining resumed on August 29, 1991, and it
continued until March 26, 1992. At that point, Re-
spondent was presented with a petition signed by 45
of 74 employees, saying that they no longer desired
union representation. Respondent withdrew recogni-
tion, based upon the petition.
My colleagues argue that the Union was entitled to
a certification year from March 22, 1991. Since the
Union received only about 8 months of bargaining (1
month in the spring of 1991 and 7 months from Au-
gust 29, 1991, to March 26, 1992), the Respondent
could not withdraw recognition as of the latter date,
according to my colleagues.
For the reasons set forth above, I disagree with the
‘‘certification year’’ premise of my colleagues. On the
other hand, I agree that the Union was entitled to a
reasonable period of time for bargaining after the set-
tlement agreement of July 18, 1991.5 If the General
Counsel had argued the point, I would be presented
with the issue of whether that reasonable period con-
tinued beyond 8 months (July 18, 1991, to March 26,
1992). However, the General Counsel does not make
this contention, choosing to rest entirely on the ‘‘cer-
tification year’’ principle. Since I disagree with that
principle, as applied here, I would honor the employee
choice shown on March 26, 1992, and I would permit
the withdrawal of recognition.
James E. Murphy, Esq., for the General Counsel.
David F. Byrnes, Esq., of San Francisco, California, for the
Respondent.
DECISION
STATEMENT OF THE CASE
RICHARD A. SCULLY, Administrative Law Judge. On
charges1 filed by Bus, Sales, Truck Drivers, Warehousemen
and Helpers, Local Union No. 637, affiliated with the Inter-
national Brotherhood of Teamsters, AFL–CIO (the Union),
on June 9 and November 20, 1992, the Regional Director for
Region 9 of the National Labor Relations Board (the Board)
issued complaints2 alleging that Americare-New Lexington
Health Care Center (the Respondent) committed certain vio-
lations of Section 8(a)(1) and (5) of the National Labor Rela-
tions Act (the Act). The Respondent filed timely answers de-
nying that it had committed any violation of the Act.
A hearing was held in New Lexington, Ohio, on March
19, 1993, at which all parties were given a full opportunity
to participate, to examine and cross-examine witnesses, and
to present other evidence and argument. Briefs submitted on
behalf of the General Counsel and the Union have been
given due consideration. On the entire record and from my
observation of the demeanor of the witnesses, I make the fol-
lowing
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
At all times material, the Respondent was a corporation
engaged in the operation of a nursing home in New Lexing-
ton, Ohio. During the 12-month period prior to June 1992,
the Respondent, in conducting its operations, derived gross
revenues in excess of $100,000 and purchased and received
at its facility in New Lexington, Ohio, goods valued in ex-
cess of $10,000 directly from points outside the State of
Ohio. The Respondent admits, and I find, that it is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Respondent admits, and I find, that at all times mate-
rial the Union was a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The Respondent and the General Counsel previously filed
Cross-Motions for Summary Judgment in this matter with the
Board. On December 2, 1992, the Board issued an order de-
nying Motions for Summary Judgment and remanding pro-
ceedings to Regional Director in which it stated that it found
‘‘that the pleadings and motions raise factual and legal issues
warranting a hearing before an administrative law judge.’’
A. The Certification Year Issue
1. Undisputed facts
At the hearing, counsel for the parties entered into a stipu-
lation of facts, providing:
1. The Union was certified as the exclusive collective-bar-
gaining representative of the employees in a bargaining unit
consisting of:
All full-time and regular part-time nurses aides, reha-
bilitating aides, dietary aides, medical supply clerk,
laundry aides, housekeeping aides, maintenance em-
ployee and medical records clerk/receptionist, but ex-
1229AMERICARE-NEW LEXINGTON HEALTH CARE CENTER
cluding all registered nurses and licensed practical
nurses as supervisors within the meaning of the Act,
bookkeeper, activities director, admissions coordinator,
housekeeping and laundry supervisors, dietary super-
visor, administrator, director of nursing, assistant direc-
tor of nursing and all other guards, supervisors, profes-
sional employees and office clerical employees as de-
fined in the Act.
An election was conducted in the above-referenced bargain-
ing unit on June 4, 1987 (Case 9–RC–15096), and a certifi-
cation of representative was issued by the Board on Septem-
ber 3, 1987.
2. The Respondent and the Union entered into a collective-
bargaining agreement which covered the period between May
1, 1988, and April 30, 1991.
3. In or about February 1991, a decertification petition was
filed by an employee in the bargaining unit. Pursuant to that
petition, a decertification election was conducted under the
supervision of the Regional Director for Region 9 of the
Board, in the bargaining unit (Case 9–RD–1594). The Union
received a majority of the votes in the decertification elec-
tion, and on March 22, 1991, a certification of representative
was issued by the Regional Director.
4. The Respondent and the Union met for the purposes of
negotiating a successor collective-bargaining agreement on
April 30, 1991.
5. On May 2, 1991, the Respondent, by Vice President of
Human Resources Steven Romilo, withdrew recognition of
the Union as the exclusive bargaining representative of its
employees.
6. On May 13, 1991, the Union filed an unfair labor prac-
tice charge alleging that the Respondent had violated Section
8(a)(1) and (5) of the Act by refusing to bargain over the
terms of a new collective-bargaining agreement, and by with-
drawing recognition of the Union (Case 9–CA–28549).
7. By letter dated June 24, 1991, the Board agent assigned
to investigate the case informed the Respondent that the Re-
gion intended to issue a complaint unless the Respondent
agreed to enter into a settlement agreement which settled the
Union’s charge.
8. On June 27, 1991, the Respondent’s representative exe-
cuted the settlement agreement, which was enclosed with the
Board agent’s letter. The Union refused to enter into the set-
tlement agreement, but it was approved by the Regional Di-
rector unilaterally on July 18, 1991. No complaint was ever
issued by the Regional Director regarding the charge in Case
9–CA–28549. By letter dated July 23, 1991, Acting Regional
Director Edward C. Verst informed the Union’s attorney that
the Region was refusing to issue a complaint in that matter
in view of the undertakings contained in the settlement
agreement.
9. The Union did not file an appeal of the Regional Direc-
tor’s actions with regard to the charge in Case 9–CA–28549
and the case was assigned to Compliance Supervisor William
A. Maloney.
10. On August 29, 1991, the Respondent’s representatives,
Steve Ronilo and David Dixon, met with Union Representa-
tive Rodger Gable for the purposes of collective bargaining.
11. The parties continued negotiations from August 29,
1991, through March 1992.
12. The Respondent, by Administrator David M. Dixon,
withdrew recognition of the Union as the exclusive bargain-
ing representative of its employees in a letter dated March
26, 1992.
13. Since March 26, 1992, the Respondent has not recog-
nized the Union as the exclusive bargaining representative of
the employees at the New Lexington Health Care Center.
14. On April 29, 1992, the Union filed an unfair labor
practice charge alleging that the Respondent had violated
Section 8(a)(1) and (5) of the Act by the conduct referred
to in paragraphs 11 and 12, above (Case 9–CA–29550).
15. The charge in Case 9–CA–29550 was dismissed in
part by the Acting Regional Director in a letter dated June
9, 1992.
16. On June 10, 1992, Rodger Gable forwarded a letter to
David Dixon requesting that the Respondent furnish the
Union with the names, addresses, telephone numbers and job
classifications of all employees employed in the bargaining
unit.
17. On October 16, 1992, the Union filed an unfair labor
practice charge alleging that the Respondent had violated
Section 8(a)(1) and (5) of the Act by refusing to furnish the
information requested by the Union in the letter dated June
10, 1992 (Case 9–CA–30063).
2. Unagreed facts
The credible testimony of Union Representative Rodger
Gable establishes that, following the Respondent’s execution
of the settlement agreement, he sent a letter dated July 2,
1991, to the Respondent representative, Steven Ronilo’s stat-
ing the Union’s desire to resume negotiations for a collec-
tive-bargaining agreement, listing several proposed dates for
meeting, and enclosing the Union’s contract proposals. On
July 9, he had a telephone conversation with Administrator
David Dixon concerning, inter alia, setting a date for resum-
ing negotiations, in which Dixon said that the Company’s
first available date was August 29. Following approval of the
settlement agreement, the Respondent, in compliance with
the terms of the agreement, put back the union bulletin board
in the breakroom. Gable also testified that he has received
no reply to the June 10, 1992 request for information he sent
to the Respondent.
David Dixon credibly testified that on March 26, 1992, he
received an envelope in his office containing a petition
signed by 47 employees, stating that they no longer wanted
to be represented by the Union. After counting the signa-
tures, he undertook to verify that the signers were still work-
ing for the Respondent. He checked various payroll records
for the pay period ending March 17, 1992, and talked to su-
pervisors to determine the number of employees in the bar-
gaining unit as of that date and found that the total was 74.
After establishing the number of employees in the bargaining
unit and verifying the signatures on the petition, he con-
cluded that a majority no longer wished to be represented by
the Union. On the same date, he sent a letter to Rodger
Gable informing the Union that he had received ‘‘objective
evidence’’ that it no longer represented a majority of the em-
ployees and that the Respondent was withdrawing recogni-
tion as of that date. Dixon testified that after sending the let-
ter to Gable he checked the payroll records for the next pay
period ending March 31, 1992, to doublecheck the figures
1230 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Counsel for the General Counsel has stipulated that there were
74 employees in the bargaining unit on March 26, 1992, and that
there are genuine signatures of 45 employees on the petition.
4 NLRB v. Gissel Packing Co., 395 U.S. 575, 602 (1969).
5 The evidence does not establish that the Union was responsible
for or concurred in the delay in returning to the bargaining table.
The uncontradicted testimony of Gable establishes that the Union
proposed several dates in July and early August on which to meet;
and determined that a majority of the employees in the unit
had signed the petition.3
Analysis and Conclusions
I find that the Respondent has established that it did have
a good-faith doubt as to the Union’s lack of majority support
among the employees in the bargaining unit when it with-
drew recognition on March 26, 1992. From all that appears
that doubt was based on objective evidence consisting of the
petition presented to Administrator Dixon on that date which
contained valid signatures of not less than 45 of the 74 mem-
bers of the unit and clearly stated that the signers no longer
wanted to be represented by the Union. There is no evidence
or allegation that the petition was in any way tainted by em-
ployer involvement or assistance.
The Respondent argues that this determination necessarily
ends the matter because it was the only material issue of fact
possibly in dispute when the Board considered and denied
the Cross-Motions for Summary Judgment because there
were ‘‘factual and legal issues warranting a hearing.’’ It con-
tends that by so ruling the Board rejected the General Coun-
sel’s legal argument, otherwise, the question of the employ-
er’s good-faith doubt would have been immaterial because,
according to that argument, withdrawal of recognition was
precluded even if a majority of the unit employees no longer
supported the Union. It contends that the Board’s rejection
of the General Counsel’s position is the law of the case. I
do not agree. The Board’s ruling on the motions was inter-
locutory in nature and subject to reconsideration and change
until it has made its final decision in this case. Moreover,
had it intended its ruling to constitute a conclusive rejection
of the General Counsel’s legal argument, it undoubtedly
would have clearly said so.
It is well settled that where a union has been initially cer-
tified as the result of a Board-conducted election, under
Board rule, it is entitled to a certification year in which chal-
lenges to its majority status are precluded, and any refusal
to bargain based on such a challenge is unlawful. E.g., Ray
Brooks v. NLRB, 348 U.S. 96 (1954); and Straus Commu-
nications, 246 NLRB 846 (1979). This is because ‘‘a bar-
gaining relationship once rightfully established must be per-
mitted to exist and function for a reasonable period in which
it can be given a fair chance to succeed.’’ Franks Bros. v.
NLRB, 321 U.S. 702, 705 (1944). The question here is
whether the Union was entitled to a certification year by rea-
son of its victory in the decertification election held among
the bargaining unit employees on March 14, 1991. Counsel
for the General Counsel contends that it was and that the cer-
tification year was extended for a period equal to that during
which the Respondent unlawfully refused to bargain. The Re-
spondent contends that this results in a second certification
year for the Union and that the certification year rule applies
only in situations where a union is initially certified. It fur-
ther argues that the bargaining relationship involved here had
over 4 years to succeed and there is no reason in law or eq-
uity to grant the Union a second certification year.
In John Vilicich, 133 NLRB 238 (1961), the Board dis-
missed a petition for an election because an existing contract
constituted a bar. It also stated that even in the absence of
a contract bar the petition would be untimely as it was filed
during a certification year. The Board’s decision in Fisher-
man’s Cooperative Assn., 128 NLRB 62 (1960), establishes
that the certification referred to in John Vilicich, resulted
from a decertification election victory by labor organization
Seine and Line which, at the time the decertification petition
was filed, was the then currently certified and recognized
bargaining representative of the unit involved. There is no
significant difference in the situation involved here. The Re-
spondent has cited no authority in support of its contention
that a certification year only applies where a union is initially
certified. John Vilicich establishes that it is the union’s vic-
tory in a valid Board-conducted election that gives rise to a
certification year not the fact that it is its initial certification.
A decertification election campaign may create as much tur-
moil and disruption as an initial organizing campaign. There
is no reason that a union that is successful in winning such
an election should not enjoy the same freedom from chal-
lenges to its majority status as one winning a representation
election since the need for an opportunity for the bargaining
relationship to stabilize and succeed may be just as great.
‘‘[S]ecret ballot elections are generally the most satisfac-
tory—indeed the preferred—method of ascertaining whether
a union has majority support.’’4 Consequently, it would
make little sense to say that after the Union won the decerti-
fication election it could not be forced into another election
for 1 year, by reason of the statutory bar in Section 9(c)(3),
but that the Respondent could withdraw recognition on the
basis of an employee petition before that year was up. I find
that any challenge to the Union’s majority status was pre-
cluded from 1 year from March 22, 1991, the date that the
certification issued.
After participating in one bargaining session following the
certification, on May 2, 1991, the Respondent withdrew rec-
ognition of the Union in a letter in which it stated that it had
objective evidence that it no longer represented a majority of
the employees in the bargaining unit. The Union filed an un-
fair labor charge with the Board and after a Board agent in-
formed the Respondent that a complaint would be issued, it
executed a settlement agreement on June 27, 1991. By the
terms of the agreement the Respondent agreed, inter alia, to
recognize and bargain in good faith with the Union. Al-
though the Union did not agree to this settlement, it was uni-
laterally approved by the Regional Director on July 18, 1991.
The next negotiating session between the parties was held on
August 29.
Board law is clear that where a settlement agreement re-
solves allegations of a refusal to bargain in a certification
year the certification will be extended to assure that there is
a full year of actual bargaining. E.g., Vantran Electric Corp.,
231 NLRB 1014 (1977); Mar-Jac Poultry Co., 136 NLRB
785 (1962). In the present case there was no bargaining be-
cause of the Respondent’s withdrawal of recognition between
May 2 and August 29, 1991, a period of approximately 4
months.5 Therefore, the certification year was extended by 4
1231AMERICARE-NEW LEXINGTON HEALTH CARE CENTER
but, on July 9, Dixon informed him that the Respondent would not
be available before August 29.
6 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
months until July 22, 1992. However, the Respondent again
withdrew recognition on March 26, 1992. I find there is no
merit in the Respondent’s contention that the certification
year was not extended because the settlement agreement did
not specifically so provide. The Board made it clear in Mar-
Jac Poultry Co. that a settlement of an 8(a)(5) refusal-to-bar-
gain charge in which the employer agreed to bargain in good
faith would operate to extend the certification year to assure
that there was at least 1 full year of actual bargaining. The
settlement agreement here had that effect as a matter of law.
As stated in Straus Communications, supra at 847–848:
Where, however, the certification year is interrupted
by litigation of 8(a)(5) unfair labor practice charges, the
company ‘‘is obligated to bargain . . . for a reasonable
period of time exclusive of the period during which the
bargaining relationship was suspended by litigation of
the . . . unfair labor practices.’’ Once the litigation is
resolved, whether by a Board order or a non-Board set-
tlement agreement, the certification year will be ex-
tended ‘‘to embrace that time in which the employer
has engaged in its unlawful refusal to bargain.’’
. . . .
Accordingly, from the time of the settlement agree-
ment, the parties were entitled to and required to bar-
gain for that portion of the certification year to which
the Union still was entitled free of any encumbrances.
Because Respondent withdrew recognition from the
Union during the certification year, as extended, it vio-
lated Section 8(a)(5) and (1) of the Act. [Fns. omitted.]
I find that the same conclusion must be reached here.
B. The Union’s Request for Information
The Respondent admits that it did not provide the informa-
tion the Union requested in Gable’s letter of June 10, 1992,
and apparently does not dispute that such information would
be relevant and of use to the Union in the performance of
its duties as the unit employees collective-bargaining rep-
resentative. Its refusal to provide the information was based
on its contention that at the time of the request the Union
no longer enjoyed such status. Resolution of that issue in
favor of the Union necessarily results in a finding that the
Respondent violated Section 8(a)(5) and (1) by failing to pro-
vide the information requested. NLRB v. Truitt Mfg. Co., 351
U.S. 149, 152 (1956); Barnard Engineering Co., 282 NLRB
617, 619 (1987)
CONCLUSIONS OF LAW
1. The Respondent, Americare-New Lexington Health
Care Center, 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 full-time and regular part-time nurses aides, reha-
bilitating aides, dietary aides, medical supply clerk, laundry
aides, housekeeping aides, maintenance employee and medi-
cal records clerk/receptionist, but excluding all registered
nurses and licensed practical nurses as supervisors within the
meaning of the Act, bookkeeper, activities director, admis-
sions coordinator, housekeeping and laundry supervisors, die-
tary supervisor, administrator, director of nursing, assistant
director of nursing and all other guards, supervisors, profes-
sional employees and office clerical employees, as defined in
the Act, constitute a unit appropriate for the purposes of col-
lective-bargaining within the meaning of Section 9(b) of the
Act.
4. At all times material since March 22, 1991, the Union
has been and now is the certified and exclusive bargaining
representative of all employees in the above appropriate unit
for the purpose of collective bargaining within the meaning
of Section 9(a) of the Act.
5. By withdrawing recognition from, and by refusing on
March 22, 1992, and at all times thereafter, to bargain collec-
tively with the Union as the exclusive bargaining representa-
tive of all employees in the appropriate unit, the Respondent
violated Section 8(a)(5) and (1) of the Act.
6. By refusing to provide the Union with information rel-
evant and necessary for the proper administration of its du-
ties as the collective-bargaining representative of its employ-
ees, the Respondent violated Section 8(a)(5) and (1) of the
Act.
7. The above unfair labor practices are unfair labor prac-
tices affecting commerce within the meaning of Section 2(6)
and (7) of the Act.
THE REMEDY
Having found that the Respondent violated Section 8(a)(5)
and (1) by withdrawing recognition from the Union on
March 26, 1992, and thereafter refusing to meet and bargain
with it, I shall recommend that it be ordered to cease and
desist from withdrawing recognition and refusing to recog-
nize the Union and to bargain collectively, on request, with
the Union as the exclusive representative of its employees in
the appropriate unit and, if an understanding is reached, em-
body such understanding in a signed agreement.
There should have been bargaining for at least 1 year fol-
lowing the certification on March 22, 1991, and for a reason-
able time after the settlement agreement. The reasonable pe-
riod of time should compensate for the failure to bargain dur-
ing any period of the certification year. The Respondent
withdrew recognition and refused to bargain with the Union
on May 2, 1991. Bargaining did not resume pursuant to the
settlement agreement until August 29, 1991, a period of ap-
proximately 4 months and the certification year was extended
for a comparable period. Because the Union was not ac-
corded a full certification year, as extended, before the Re-
spondent again withdrew recognition on March 26, 1992, it
should be required to bargain for a period of 4 months, com-
mencing on the date the Respondent and the Union resume
bargaining and, if an agreement is reached, to embody it in
a signed agreement.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended6
1232 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
ORDER
The Respondent, Americare-New Lexington Health Care
Center, New Lexington, Ohio, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Withdrawing recognition from and refusing to meet
and bargain collectively concerning rates of pay, wages,
hours, and other terms and conditions of employment with
the Union as the exclusive bargaining representative of all
employees in the appropriate unit.
(b) Refusing to bargain collectively with the Union by fail-
ing to provide relevant information on request.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) On request, bargain with the Union as the exclusive
representative of all employees in the appropriate unit with
respect to rates of pay, wages, hours, and other terms and
conditions of employment, for the period of time specified
in the remedy section of this decision and, if an agreement
is reached, embody it in a signed agreement.
(b) On request, furnish to the Union all information re-
quested in its letter of June 10, 1992.
(c) Post at its facility in New Lexington, Ohio, copies of
the attached notice marked ‘‘Appendix.’’7 Copies of the no-
tice, on forms provided by the Regional Director for Region
9, after being signed by the Respondent’s authorized rep-
resentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT withdraw recognition from and refuse to
meet and bargain collectively with the Union as the exclusive
representative of all employees in the appropriate bargaining
unit.
WE WILL NOT refuse to bargain collectively with the
Union by refusing to supply relevant information on request.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL, on request, bargain with the Union as the exclu-
sive representative of all employees in the appropriate unit
with respect to rates of pay, wages, hours, and other terms
and conditions of employment and, if an understanding is
reached, embody that understanding in a signed agreement.
WE WILL, on request, furnish to the Union the information
requested in its letter of June 10, 1992.
AMERICARE-NEW LEXINGTON HEALTH CARE
CENTER