Easton Hospital

National Labor Relations Board - Board Decisions

Sep 19, 2001

335 N.L.R.B. 1091 (N.L.R.B. 2001)

EASTON HOSPITAL 1091
Easton Hospital and United Independent Union,
NFIU/LIUNA, AFL–CIO. Case 4–CA–27704
September 19, 2001
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS
TRUESDALE AND WALSH
On September 1, 1999, Administrative Law Judge
Martin J. Linsky issued the attached decision. The Gen-
eral Counsel and the Charging Party filed exceptions and
supporting briefs, and the Respondent filed an answering
brief to the General Counsel’s exceptions.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions2
and to adopt the recommended Order.

1 The General Counsel and the Charging Party have excepted to
some of the judge’s credibility findings. The Board’s established pol-
icy is not to overrule an administrative law judge’s credibility resolu-
tions unless the clear preponderance of all the relevant evidence con-
vinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have care-
fully examined the record and find no basis for reversing the findings.
2 In Levitz Furniture Co. of the Pacific, 333 NLRB 717 (2001),
which issued while this case was pending before the Board, the Board
overruled Celanese Corp., 95 NLRB 664 (1951), and its progeny inso-
far as they permitted an employer to withdraw recognition from an
incumbent union on the basis of a good-faith doubt of the union’s con-
tinued majority status. The Levitz Board held that “an employer may
unilaterally withdraw recognition from an incumbent union only where
the union has actually lost the support of the majority of the bargaining
unit employees.” Id. However, the Board also held that its analysis
and conclusions in that case would be applied only prospectively; “all
pending cases involving withdrawals of recognition [will be decided]
under existing law: the ‘good-faith uncertainty’ standard as explicated
by the Supreme Court” in Allentown Mack Sales & Service v. NLRB,
522 U.S. 359 (1998). We find that the judge’s analysis in the instant
case comports with the standards of Allentown Mack.
We agree with the judge’s finding that the November 24, 1998 letter
signed by 7 of the 14 unit employees was sufficient to provide the
Respondent with a good-faith uncertainty as to the continued majority
support of the Union according to the standards set forth in Allentown
Mack. As noted by the Charging Party, pre-Allentown Mack Board
precedent holds that employee petitions that request merely a “revote”
or an opportunity for employees to vote as to whether they desire con-
tinued representation by a union are alone insufficient to establish a
good-faith doubt as to a union’s majority status. See, e.g., Pic Way
Shoe Mart, 308 NLRB 84 (1992); Laidlaw Waste Systems, 307 NLRB
1211 (1992); Phoenix Pipe & Tube Co., 302 NLRB 122 (1991), enfd.
955 F.2d 852 (3d Cir. 1991). In contrast to such precedent, however,
the language of the petition signed by the employees in the instant case
conveys more than a simple request for a new election:
We feel that we have been misrepresented and therefore would like an
immediate opportunity to revote to determine whether we want the
union to continue its representation of our needs with Easton Hospital.
Thus, the employees’ use of the phrase “we feel that we have been
misrepresented” suggests dissatisfaction with union representation.
This expression of dissatisfaction, combined with the employees’ re-
quest for a vote, constitutes evidence sufficient to establish a good-faith
uncertainty as to the Union’s majority status under Allentown Mack.
Member Walsh stresses, however, that in the future, in all cases arising
after the Levitz decision, this type of evidence may be sufficient to
support an employer’s request for an election, but will no longer be
sufficient to justify a withdrawal of recognition.
ORDER
The recommended Order of the administrative law
judge is adopted, and the complaint is dismissed.

Peter C. Verrochi, Esq., for the General Counsel.
Roger D. Susanin and Daniel J. Brennan, Esqs., of King of
Prussia, Pennsylvania, for the Respondent.
Stephen Richman, Esq., of Philadelphia, Pennsylvania, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
MARTIN J. LINSKY, Administrative Law Judge. On De-
cember 1, 1998, the United Independent Union, NFIU/LIUNA,
AFL–CIO (the Union), filed a charge against Easton Hospital,
Respondent herein.
On April 19, 1999, the National Labor Relations Board, by
the Regional Director for Region 4, issued a complaint which
alleges that Respondent violated Section 8(a)(1) and (5) of the
National Labor Relations Act (the Act) when it withdrew rec-
ognition of the Union as the exclusive collective-bargaining
representative of a unit of registered nurses.
Respondent filed an answer on April 29, 1999, in which it
claimed that it lawfully withdrew recognition of the Union
because it had a reasonable good-faith doubt of the continued
majority status of the Union citing Allentown Mack Sales &
Service v. NLRB, 522 U.S. 359 (1998).
A hearing was held before in Philadelphia, Pennsylvania, on
July 20, 1999.
Based on the entire record in this case, to include posthearing
briefs submitted by the General Counsel, Respondent, and the
Charging Party, and on my observation of the demeanor of the
witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, Respondent, a Pennsylvania nonprofit
corporation, has operated a not-for-profit acute care hospital in
Easton, Pennsylvania.
Respondent admits, and I find, that at all material times Re-
spondent has been an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act and has
been a health care institution within the meaning of Section
2(14) of the Act.

Accordingly, we find it unnecessary to rely on the various prior
statements made by employees, possibly within the initial certification
year, and conveyed to the Respondent’s vice president of human re-
sources. See Chelsea Industries, 331 NLRB 1648 (2000).
335 NLRB No. 85
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1092
II. THE LABOR ORGANIZATION INVOLVED
Respondent admits, and I find, that at all material times the
Union has been a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICE
As an administrative law judge with the National Labor Re-
lations Act it is my function to find the facts and then apply
current Board law, as modified by the U.S. Supreme Court, to
those facts. In light of that standard and relying on Board
precedent and the recent Supreme Court decision relied on by
Respondent, i.e., Allentown Mack Sales & Service, supra, it is
my conclusion that Respondent had a reasonable good-faith
doubt, based on objective considerations, to withdraw recogni-
tion of the Union when it did so on November 30, 1998, and
did not violate the Act.
I note that the evidence in this case consisted of a number of
documents and the testimony of the Hospital’s vice president of
human resources, Robert J. Bandola, and Union Executive Vice
President Paul Diana. Bandola and Diana impressed me as
honest men and I credit their testimony in its entirety.
The unit involved in the instant case is a unit of registered
nurses working in certain specialized assignments. The Union
was certified by the National Labor Relations Board (the
Board) on September 7, 1997, following an election to be the
exclusive collective-bargaining representative of the registered
nurses in that unit. In the certification the unit is described as
follows:

INCLUDED: All full-time and regular part-time registered
nurses employed as Cardiac Catheterization Nurses, Electro
Physiology Nurse, Cardiac Rehabilitation Nurse, Renal Di-
alysis Nurses and Radiology Nurses employed by Easton
Hospital at its 250 South 21st Street, Easton, Pennsylvania fa-
cility.

EXCLUDED: All other employees, guards and supervisors
as defined in the Act

This unit of employees was referred to by the parties as the
“patient care areas” bargaining unit.1
The Union enjoys an irrebutable presumption of majority
status for 1 year following certification. In addition, if a collec-
tive-bargaining agreement is reached between the employer and
a union, the union will enjoy an irrebutable presumption of
continued majority status during the length of the contract pro-
vided the contract is for no longer than 3 years.
In the instant case, the Hospital and the Union began
negotiations for an initial contract. The parties met a number of
times and reached tentative agreements on a number of issues.
On November 16, 1998, the Hospital made its “final” offer to
the Union.
The Union did not accept the Hospital’s “final” offer. On
and after September 8, 1998, since the 1-year period of “irrebu-

1 The Union is also the certified collective-bargaining representative
of two other much larger units at Easton Hospital, i.e., a unit of regis-
tered nurses and a unit of licensed practical nurses. The Union and
Hospital agreed to collective-bargaining agreements with respect to
these units and they are not involved in this litigation.
table” presumption had expired, the Union, in the absence of a
contract, enjoyed only a rebutable presumption of continued
majority status.
After September 8, 1998, the Hospital could lawfully with-
draw recognition of the Union if it had a reasonable good-faith
doubt, not certainty, but doubt, of the continued majority sup-
port of the Union based on objective evidence.
As of November 30, 1998, there were 14 employees in the
“patient care areas” unit. On November 30, 1998, an envelope
was delivered to the Hospital’s vice president of human re-
sources, Ronald J. Bandola. Inside the envelope was a letter,
which stated as follows:

November 24, 1998

To Whom It May Concern:

We the undersigned are of the understanding that since a year
has gone by since the initial vote, we are eligible to vote again
regarding union membership. We feel that we have been mis-
represented and therefore would like an immediate opportu-
nity to revote to determine whether we want the union to con-
tinue its representation of our needs with Easton Hospital.

As we would like to vote on this matter immediately we ask
that you contact us with a date and time for a vote.

Respectfully Submitted, [R. Exh. 1].

The letter was signed by 7 of the 14 employees in the “pa-
tient care areas” unit. The language of the letter signed by half
of the unit would cause a reasonable doubt to be entertained
about the continued majority support of the Union among the
unit members. A majority of the unit would be eight or more.
Common sense instructs one that people want a new election
because they desire a result different from the earlier election
and common sense also instruct that people who feel “misrep-
resented” probably do not support the entity doing the repre-
senting. The letter furnishes a reasonable good-faith doubt as
to the continued majority support of the Union. There is no
allegation or evidence that Respondent did anything improper
or unlawful, which resulted in this letter being presented to
management.
After reading the letter, Bandola contacted counsel and made
the decision, after reading the letter and consulting counsel, to
withdraw recognition of the Union and to withdraw its “final
offer” to the Union. Bandola faxed the following letter on No-
vember 30, 1998, to the Union:

Mr. Paul Diana
Executive Vice President
United Independent Union
1166 South 11th Street
Philadelphia, PA 19147

Dear Mr. Diana:

The Hospital is in possession of evidence that provides it with
a good faith belief that the Union no longer represents a ma-
jority of the employees in the ‘patient care areas’ bargaining
unit. In light of the Hospital’s belief and the controlling fed-
eral law, the Hospital is compelled to cease bargaining and to
EASTON HOSPITAL 1093
withdraw its November 16, 1998 offer for a three year collec-
tive bargaining agreement.

Very truly yours, [GC Exh. 8].

Bandola credibly testified that he had other evidence of em-
ployee dissatisfaction with the union. Two members of the
“patient care areas” unit, Pam Valley and Lori Geklinsky, in
August or September 1998 had told Bandola “that the nurses in
Cardiology do not want to be member of the Union any more.
They asked how they could get out of the union. What can I do
to help them” (Tr. 24). Bandola told them to call the NLRB in
Philadelphia.
Unit employee Jean Losagio said to Bandola, “I don’t know
why we need this union here. They’re doing nothing for us. I
never voted for the union. How can we get rid of them.”
Losigio also told Bandola that “other people feel the same way
I do” (Tr. 26).
Valley, Geklinsky, and Losagio all signed the November 24,
1998 letter.
Supervisors Dave Lugg and Lori Tonetti reported to Bandola
in late summer od 1998 that the nurses in cardiology were say-
ing they did not like and did not want the Union.
Supervisor Sue Groeler told Bandola that unit employee
Teresa Langoussis from the dialysis unit in the August to Sep-
tember timeframe told her that some of the nurses “don’t want
to be in the union” (Tr. 28). Langoussis did not sign the No-
vember 24, 1998 letter.
I find that the November 24, 1998 letter signed by half of the
unit by itself furnished Respondent with a reasonable good-
faith doubt of the continued majority support of the Union.
Prior statements of employees to Bandola corroborate the rea-
sonable good-faith doubt that emanates from the letter as does
the employees’ statements about union support reported to
Bandola by Supervisors Lugg, Tonetti, and Groeler.
Union Executive Vice President Paul Diana credibly testified
that he had received no complaints about the Union from any
members of the “patient care areas” unit. He also produced a
letter from one of the seven unit employees who signed the
November 24, 1998 letter. This letter was dated December 9,
1998, and was signed by unit employee Diane Brown. The
letter was as follows:

I, the undersigned, have been frustrated with the situa-
tion our patient care area has been in for the past year plus.
The frustration has come from waiting for the Hospital and
the Union to initially negotiate after being promised it
would happen right after the “other negotiations’’ were
completed.2 Then the continued wait during a very slow
negotiation process for our area. The wage package and
other items were tentatively agreed to in May 1998, but
the wage package has been withheld until negotiations are
completed while every other employee has received a bo-
nus. I misunderstood what the petition meant, but wanted
the Hospital to inform us of why this process has been so

2 This is an apparent reference to negotiations regarding the larger
registered nurse and large licensed practical nurse units, which resulted
in a contract.
lengthy and discriminatory against us. I want to withdraw
my name from the submitted “petition” [GC Exh. 10].

Diane Brown’s letter was not turned over to the Hospital.
The Hospital was unaware of this letter from Brown and, in any
event, the operative date is November 30, 1998, when Respon-
dent withdrew recognition of the Union not some 9 days later
when Brown sent her letter to Diana.
Since I find Respondent had a good-faith reason based on
objective considerations as to the continued majority status of
the Union I must conclude that Respondent did not violate the
Act when it withdrew recognition. In reaching this conclusion I
am relying on the Supreme Court decision in Allentown Mack
Sales & Service v. NLRB, supra.
The General Counsel argues in this case and has argued in
Chelsea Industries, Case 7–CA–36846, a case pending before the
Board, that recognition may be withdrawn from a Board certified
union when there is reasonable good-faith doubt of continued
majority status only after a Board conducted election. That is not
current law however and I am bound to follow current Board law
as modified by the Supreme Court as noted above.
I believe, however, that what the General Counsel proposes
would be an appropriate change to the law. In the instant case
the employees who signed the November 24, 1998 letter stated
in the letter that they wanted an election and that they wanted to
vote on the matter of continued representation by the Union
“immediately.”
A relatively quick election to resolve the “doubt” one way or
the other raised by the November 24, 1998 letter would permit
the Union and the Hospital to promptly return to the negotiating
table or permit the Hospital to proceed with certainty and not
doubt as to the desires of their employees regarding the matter
of representation by the Union.
An election could result, absent objections, in the doubt re-
garding continued majority support raised by the employee letter
being resolved in a matter of weeks whereas unfair labor practice
litigation before a Labor Board judge, with exceptions to the
Board, and review by the court of appeals could take years.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act and is a health
care institution within the meaning of Section 2(14) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. Respondent did not violate the Act as alleged in the com-
plaint.
On the foregoing findings of fact and conclusions of law I is-
sue the following3
ORDER
The complaint is dismissed in its entirety.
3 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
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 pur-
poses.