Washington Manor Nursing Center

National Labor Relations Board - Board Decisions

Jun 11, 1974

211 N.L.R.B. 315 (N.L.R.B. 1974)

WASHINGTON MANOR NURSING CENTER (SOUTH) 315
Washington Manor, Inc., doing business as Washing-
ton Manor Nursing Center (South) and National
Union of Hospital and Nursing Home Employees
Local 1199H , Retail, Wholesale and Department
Store Union , AFL-CIO. Cases 9-CA-7857
. . June 11, 1974
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
PENELLO
On December 28, 1973, Administrative Law Judge
Sidney D. Goldberg issued the attached Decision in
this proceeding. Thereafter, the General Counsel and
the Respondent filed exceptions and supporting
briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings,'
findings, and conclusions2 of the Administrative
Law Judge and to adopt his recommended Order.3
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 Administrative Law Judge and
hereby orders that the Respondent, Washington
Manor, Inc., doing business as Washington Manor
Nursing Center (South), Centerville, Ohio, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order.
' The General Counsel argued that the Administrative Law Judge erred
in granting the Respondent's motion for severance of this case from Case
9-CA-7856 with which it had originally been consolidated . Contrary to the
General Counsel , we find that this ruling involved an exercise of the
Administrative Law Judge 's discretion , and that he did not abuse his
discretion in ordering severance . See Richmond v. Weiner, 353 F.2d 41, 44
(C.A. 9, 1965 ), cert. denied 384 U.S. 928, rehearing denied 384 U.S. 994;
Federal Rules of Procedure , Rule 42(b); Sec . 10(b) of the Act ; and Sec.
102.35 (h), Rules and Regulations , Series 8, as amended.
The General Counsel also argued that the Administrative Law Judge
erred in not relying on a notice to employees dated June 8, 1972, in reaching
his conclusion that the Respondent violated Sec. 8(aX5) and (1). This notice
was offered at the trial "as background ," and paraphrased contract
language to advise employees how to withdraw from the Union. We concur
with the Administrative Law Judge's determination to forego relying on this
notice , but for different reasons. The General Counsel now seeks to use the
notice to find a violation of the Act when he only introduced it "as
background ." This cannot be done since it goes beyond an attempt to "shed
light" on matters occurring within the 10(b) period, and thus conflicts with
Supreme Court's decision in Bryan Manufacturing Co. v. N.L.R.B., 362 U.S.
411 (1960).
2 We specifically disavow any reliance on the Administrative Law
Judge's extrapolations of "Estimated percentage of union support" as set
forth in sec. 4(b)(5) of his Decision.
3 Respondent's request for oral argument before the Board is denied as
the record and briefs adequately present the issues and positions of the
parties.
DECISION
SIDNEY D. GOLDBERG, Administrative Law Judge: This
case , involving one of two nursing homes operated by
Washington Manor, Inc., in and near Dayton, Ohio, raises
the question of whether Respondent was justified in
claiming a good-faith doubt of the Union's representative
status and refusing to bargain with it upon' the expiration
of the first contract following the Union's certification.
A similar question was raised concerning Respondent's
similar action with respect to the Union at its other
nursing home in the area. The Regional Director
ordered the two cases consolidated for hearing
.and issued, pursuant to Section 10(b) of the National
Labor Relations Act, as amended (the Act), a single
,consolidated complaint.' Respondent answered and, when
the issues raised by the answer came on for trial before me
at Moraine, Ohio, on September 18, 1973, it moved that the
cases be severed. In view of the factual differences between
the situations at the two installations, the motion to sever
was granted, but, because the same persons were involved
as parties and witnesses , the trial proceeded with respect to
both cases. Consistent with the order of severance,
however, separate Decisions are being issued with respect
to each of these nursing homes, and they have been
reentitled in accordance with that order and with stipula
tions at the trial. This Decision deals with the installation
at 7300 McEwen Road, in Centerville, called Washington
Manor Nursing Center, South.
With respect to this installation, the complaint, as
amended at the trial, alleges that, after an election held
October 20, 1971, National Union of Hospital and Nursing
Home Employees, Local 1199H, Retail, Wholesale and
Department Store Union, AFL-CIO (the Union) was, on
December 22, 1971, certified as the collective-bargaining
representative for
all full-time and regular part-time employees employed
at the respondent's Washington Manor Nursing Center
(South) located at 7300 McEwen Road, Centerville,
Ohio, including nurses aides, orderlies, maids, kitchen
help, maintenance employees, receptionist, and laun-
dresses, but excluding all licensed practical nurses, co-
op students, the beautician, the dietary consultant,
registered nurses, doctors, and all other professional
employees, guards, and supervisors as defined in the
Act;
that on or about June 6, 1972, the Employer and the Union
entered into a collective -bargaining agreement terminating
May 15, 1973; 2 that on March 3 the Union served notice
of its desire to terminate or modify the contract and,
commencing April 4, requested the Company to meet for
bargaining, but that the Company, then and since, has
unlawfully refused to bargain with the Union. The
complaint also alleges that, on April 18, the Company
1 Issued August 21, 1973, on charges filed June 21, 1973.
2 All dates hereinafter are 1973 unless otherwise specified.
211 NLRB No. 23
316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
threatened an employee with discharge unless he withdrew
from the Union and, on May 7, unlawfully interfered with,
coerced , and restrained its employees in their exercise of
self-organizational activities by the contents of a notice
posted on the employee bulletin board.
The Company answered, admitting the background facts
alleged in the complaint and its refusal to bargain with the
Union, but denying that it had interfered with employees'
self-organizational activities or that it had otherwise acted
unlawfully.
The issues so raised came on for trial before me as set
forth above. All parties were represented; they were
afforded an opportunity to adduce evidence, cross-exam-
ine witnesses , and argue upon the facts and the law. Briefs
filed by the General Counsel and by counsel for Respon-
dent have been considered.
For the reasons hereafter set forth in detail, I find that
Respondent threatened an employee with discharge unless
he withdrew from the Union and thereby coerced and
restrained him; I also find that Respondent did not have a
good-faith doubt, based on objective considerations,
concerning the status of the Union as the collective-
bargaining representative of the above-described employ-
ees and that, therefore, its refusal to bargain with the
Union violated Section 8(a)(5) of the Act.
Upon the entire record herein,3 and considering the
demeanor of the witnesses while testifying, I make the
following:
FINDINGS OF FACT
members of the Union, but that those employees who, 60
days after the execution or effective date of the contract,
are still members of the Union, all employees who
thereafter become members of the Union, and all newly
hired employees who join the Union within 60 days after
the commencement of their employment shall maintain
their union membership as a condition of their employ-
ment during the term of the contract.
The contract also includes a form entitled "Wage
Assignment and Dues Deduction Authorization" and it
provides that the employer will deduct, from the wages of
any employee who delivers an executed copy of the form to
it, the amount of that employee's union dues and pay it to
the union. The Union is required to supply the employer,
60 days after the execution or effective date of the contract,
with the names of its members and to keep the employer
informed of all changes in its roster.
The contract term was from May 15, 1972, to May 14,
1973, and automatically for yearly periods thereafter in the
absence of notice of intention to modify or terminate it by
either party not more than 90 days or less than 60 days
prior to its expiration date. In accordance with this
termination provision, the Union, by letter dated March 3
to Thomas Duffy, Respondent's administrator, gave notice
of its intention to negotiate a new agreement and requested
a meeting with his representative " as soon as possible."
David Jones, the Union's area organizer, testified that he
thereafter tried, in person and by telephone, to arrange for
a meeting to negotiate a new contract but that he was
unsuccessful in these efforts.
1. The parties
Washington Manor, Inc., an Ohio corporation, operates
two nursing homes in the Dayton area. Its operation of the
installation involved in this case is conducted under the
name Washington Manor Nursing Center, South. It admits
that its annual revenues exceed $100,000; that it annually
imports materials valued at more than $50,000; and that it
is an employer engaged in commerce as that term is
defined in the Act. I so find.
Local 1199 of the Retail, Wholesale and Department
Store Union, AFL-CIO, is a nationwide organization of
hospital and nursing home employees. It is divided, for
organizational purposes, into many "affiliates" covering as
much territory as several States, and each of them is
designated by a different initial or abbreviation following
the local number. Dayton is in the tristate area consisting
of Ohio, Indiana , and Kentucky and the affiliate covering
that area is designated by the initial "H" following the
local number "1199." The complaint alleges that Local
1199H is a labor organization, the answer admits this
allegation , and the 1972 collective-bargaining contract
signed by Respondent is with Local 1199H.
I find that the Union is a labor organization.
2. Background and chronology
The contract between Respondent and the Union
provides that employees shall not be required to be
7 Typographical errors in the transcript of proceedings have been
corrected by order dated December 14, 1973, and, as hereafter noted,
3. The issues
The General Counsel contends that Respondent's efforts
to persuade its employees to abandon their support of the
Union and its threat to discharge an employee if he did not
resign from the union were unlawful; that the Union's
status as representative of a majority of the employees is
presumed to have continued, and that Respondent, not
having proved that there were objective considerations
which justified its claim of a good-faith doubt concerning
the Union's status, was obligated to bargain with it.
Respondent contends that the conversation with, and
notices to, its employees, alleged by the complaint to
constitute restraint and coercion, were statements of fact,
argument, and opinion protected by Section 8(c) of the
Act; that there were objective considerations, including the
high rate of turnover and an admitted lack of majority
membership in the Union, that justified it in entertaining a
good-faith doubt that the Union represented a majority of
the employees in the unit; and that, therefore, it was not
obligated to bargain further with the Union.
4. Discussion and conclusions
a. Interference, restraint, and coercion
One of the principal contentions of the General Counsel
is that Respondent's conduct in interfering with its
employees' rights of self-organization and in coercing and
Respondent's revised version of its Exh. 15 has been substituted for the
exhibit received at the trial.
WASHINGTON MANOR NURSING CENTER (SOUTH) 317
restraining them in their exercise of those rights precludes a
finding that it entertained a good-faith doubt concerning
the Union's status as collective-bargaining representative.
Accordingly, it becomes necessary, at the threshold of this
discussion , to examine the evidence concerning this
interference, restraint , and coercion, both as it affects the
validity of Respondent's claim to a good-faith doubt and
as it supports the independent violations of the Act alleged
in the complaint.
Robert Surface, an orderly since 1969, testified that on
April 19, Administrator Duffy met him in the hall, took
him into a private office, and said: "I am not going to have
my good help threatened." When Surface asked him what
he meant , Duffy said: "You threatened two of the girls.
You are asking them to join the union and threatening
them if they didn't join the union." Surface denied having
threatened anyone, but Duffy said that "it came from the
horse's mouth" and Surface, admitting that he had asked
the employees to sign union cards, again denied any
threats. Duffy then said, according to Surface, "I have
done a lot of work in this place to really build it up since I
took it. You are not going to sink me." Surface asked what
Duffy meant by "sink me" and Duffy said: "I mean I want
you to withdraw from the union and I am giving you one
week to withdraw from it until next Friday. I want a letter
of resignation on my desk or you are going to be fired."
Duffy was not questioned concerning this exchange and,
therefore, did not deny it. There is nothing inherently
improbable in Surface's testimony and no reason to reject
it. Accordingly, I find that the exchange occurred as he
described it. In its brief, Respondent argues that Duffy was
engaged in investigating the complaint of the employees to
determine whether there had been a violation of the
contract provision, as well as the Company's rule against
harassment , and that his questioning, therefore, was not
violative of Section 8(a)(1). The determination of whether
Duffy's statements were violative of the Act does not turn
on the questioning and it is not necessary to determine the
point raised by Respondent. The allegation of the
complaint, added by oral amendment, was that Respon-
dent violated the section by "the conduct of said Thomas
Duffy on or about April 18, 1973, threatening an employee
by telling him that he had until next Friday to withdraw
from the union." The undisputed testimony shows that
Duffy threatened Surface with discharge unless he with-
drew from the Union by the following Friday. It requires
no citation of authority to show that this threat constituted
coercion violative of Section 8(a)(1) of the Act and I so
find.
The complaint also alleges that a notice posted on the
employees' bulletin board on or about May 7, 1973, had the
"specific purpose of undermining the union as the duly
designated bargaining representative of its employees."
The notice, dated May 7, consists of six paragraphs, only
one of which refers to the Union; that paragraph reads as
follows:
Union Contract: The Manor's labor contract with 1199-
H will expire on Tues. 15 May. Don't let our employees
become unduly alarmed about the rumors they might
hear during the coming weeks. This matter, just like
everything else in life , will be resolved reasonably. Two
nursing homes in Cincy who have labor contracts with
1199-H (Villa Hope and Medi-Centers) have recently
gone bankrupt and out of business. We don't want this
to happen to the Manor.
At the close of the General Counsel's principal case,
Respondent moved to dismiss this allegation for lack of
proof.4 Decision on the motion was reserved and the
General Counsel was directed to brief this point specifical-
ly-There is nothing in the General Counsel's brief relevant
to this point except a repetition of the language of the
notice and citation of general authorities. This language,
although undoubtedly designed to engender concern by
the employees, relates the closings of the other two nursing
homes to bankruptcy rather than to antiunion action by
those managements, making tenuous any implication of
similar action by Respondent. I find this statement to
constitute argument protected by Section 8(c) and not
interference, restraint, or coercion violative of Section
8(a)(1) of the Act .5
One further reference in the General Counsel's brief in
connection with violations of Section 8(a)(1) is to the
notice posted on June 8, 1972. This notice purports to
explain provisions of the then recently executed contract
with the Union, including a method of withdrawing from
the Union, a possible employee action recognized in the
contract. There is no allegation in the complaint under
which this evidence can be considered and the General
Counsel stated at the trial that it was offered "as
background." In his brief, however, the General Counsel
argues that, since Duffy admitted that this notice had never
been withdrawn and that he had, on employees' requests,
explained the manner in which they could withdraw from
the Union, it should be considered as part of Respondent's
"calculated plan" to undermine the Union. the evidence
does not support this argument and no such finding will be
made.
b. The refusal to bargain
(1) The facts
The facts concerning Respondent's refusal to bargain
with the Union are simple and not in dispute. Duffy
testified that about March 5 he received the Union's letter
notifying him that the contract would expire on May 14
and requesting a meeting, as soon as possible, to negotiate
a new agreement. He discussed this demand with Les
Pointer, the administrator of Washington Manor Nursing
Home North, who had also received a demand from the
union and he had a number of conversations over the
following weeks concerning the apparent strength of the
union at both nursing homes as reflected by the dues-
deduction authorizations on file. On April 6, Pointer and
Duffy met with Paul Moody, president of Washington
Manor, Inc. They both had with them graphs showing the
Union's "deduction strength" compared with the "total
4 On rebuttal , Jones testified that the Union had never had a contract
with Medi-Center because it had lost the representation election ; that it did
have a contract with Villa Hope and that both nursing homes had closed.
5 The minor factual misstatement does not affect this conclusion.
318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
membership eligibility." It showed, according to Duffy,
that fewer than 50 percent of the employees in the
bargaining unit were members of the Union. They decided
to postpone any decision on the subject. Pointer and Duffy
continued to discuss the subject at frequent intervals and,
on May 4, Pointer suggested that Respondent "might want
to consider a refusal to bargain on the basis that it
appeared that the union did not hold a majority of
employees as members." Duffy agreed with Pointer and,
after consulting with counsel, made the determination that
there would be no bargaining with the Union for the
employees at either of the nursing homes. Accordingly, by
letter from counsel, the Union was notified, on May 8, that
Respondent took the position that the Union did not
represent a majority of the employees in the bargaining
unit and would not meet for negotiations. Respondent
concedes that it has not, since that time, bargained with the
Union and contends that it is not under a legal obligation
to do so.
(2) The basis for Respondent's "good-faith doubt"
Duffy testified that it was in March and April, after
receiving the Union's request for bargaining, that he began
to gather statistics on the numbers of employees in the unit
and the number of checkoff authorizations on file and that,
about April 6, he came to the conclusion that throughout
the 11 months of the contract term that had already
expired the Union had never had a majority of the
employees as members . Duffy testified that his decision
not to bargain with the Union was based upon these
statistics and upon his judgment "on what I felt was
wanted by the majority of the employees." He denied that
he had relied upon any "close election" because the
election results at the two nursing homes were "considera-
bly different," but he nevertheless insisted that, in his
opinion, the Union "never had a majority at anytime." He
also stated that he had been surprised at the "small number
of cards," i.e., checkoff authorizations received after the
contract had been signed, and that this indicated to him
that the Union did not have a majority. He also testified
that he took into consideration the turnover in the work
force, which, he stated, was about 100 percent each year.
Finally, Duffy testified, he took into consideration the
comments by and questions from employees who asked
him how they could withdraw from the Union .6
(3) The applicable rule for decision
There is no dispute concerning the rule of decision
applicable to situations similar to that in this case. It is
most clearly stated by the Board in Terrell Machine
Company, 173 NLRB 1480,7 as follows:
It is well settled that a certified union, upon
expiration of the first year following its certification,
enjoys a rebuttable presumption that its majority
representative status continues.' This presumption is
designed to promote stability in collective-bargaining
relationships, without impairing the free choice of
employees.2 Accordingly, once the presumption is
shown to be operative, a prima facie case is established
that an employer is obligated to bargain and that its
refusal to do so would be unlawful. The prima facie
case may be rebutted if the employer affirmatively
establishes either (1) that at the time of the refusal the
union in fact no longer enjoyed majority representative
status,3 or (2) that the employer's refusal was predicat-
ed on a good-faith and reasonably grounded doubt of
the union's continued majority status. As to the second
of these, i.e., "good faith doubt," two prerequisites for
sustaining the defense are that the asserted doubt must
be based on objective considerations 4 and it must not
have been advanced for the purpose of gaining time in
which to undermine the union.5
' Celanese Corporation ofAmerica, 95 NLRB 664, 671-672.
2 Id
a "Majority representative status" means that a majority of
employees in the unit wish to have the union as their representative
for collective bargaining purposes. ID.
A See Laystrom Manufacturing Company, 151 NLRB 1482, 1484,
enforcement denied on other grounds (sufficiency of evidence) 359
F.2d 799 (C.A. 7, 1966); United Aircraft Corporation, 168 NLRB 480
(TXD); N.L.R.B. v. Gulfmont Hotel Company, 362 F.2d 588 (C.A. 5,
1966), enfg. 147 NLRB 997. And cf United States Gypsum Company,
157 NLRB 652.
5 C & C Plywood Corporation, 163 NLRB 1022; Bally Case and
Cooler, Inc., 172 NLRB 1127.
After correctly summarizing the foregoing rule, Respon-
dent's brief argues that
[respondent] had a good faith doubt of the union's
majority status, and at the hearing it proved that this
good faith doubt was based upon objective standards.
The high turnover, minority of employees on checkoff,
unsuccessful signup efforts, poor employee support,
and lack of representation all juxtapost [sic] into a clear
good faith position exculpating [respondent] from any
violation of Sec. 8(a)(5) of the Act.
This argument does not include-as it could not-the
contention that Respondent relied upon anything except
its claimed good-faith doubt concerning the Union's
,representative status as there is no evidence upon which
Respondent can validly argue that it has established in fact
that, on May 7, 1973, the Union was not the representative
of the employees in the unit.8
(4) Turnover among employees
Duffy testified that there was a turnover of about 100
percent each year among Respondent's employees; that
turnover was one of the factors on which Pointer relied in
!recommending that Washington Manor, Inc., refuse to
bargain with the Union at its North nursing home and that
he relied upon this same factor in reaching a similar
decision at Respondent's facility. Duffy also testified that
he was "surprised at the small number of cards" which
were delivered to him after June 12 under the contract
provision for checkoff. He made this point in reference to
the result of the election, which the Union won by 40 to 17,
6 There is no evidence that Duffy knew about, or made any particular Cash Register Company, 201 NLRB 1034.
point concerning , the union 's effort to sign up additional employees . 8 Compare GAF Corporation, 195 NLRB 169 , where it appeared that the
7 Enfd . 427 F.2d 1088 (C.A. 4, 1970), cert . denied 398 U.S. 929 (1970). employer had been given a copy of a decertification bearing the names of a
The same standard was recently reaffirmed by the Board in The National majority of the unit employees.
WASHINGTON MANOR NURSING CENTER (SOUTH)
these figures indicating that the Union was supported by
70 percent of the employees9 who voted and, in fact, by a
majority of all the employees in the unit, estimated at 75 at
the time.
As stated above, the collective-bargaining contract
executed on June 6, 1972, contained a provision permitting
employees to have their union dues checked off by
Respondent and, by June 12, there were 34 such authoriza-
tions on file as compared with 70 employees then in the
bargaining unit . While these figures show that only 49
percent of the employees were actually union members, it
would be superficial to conclude that these 34 members
measure the totality of the union's support. From this
figure, however, Respondent argues that the turnover of
employees between the election and June 12 had dissipated
the Union's representative status. This argument must be
rejected. The Board has ruled, with court approval, that
turnover among employees cannot, by itself, be used as the
basis for a belief that the union has lost its support since it
is presumed that, absent evidence that would justify a
contrary conclusion , new employees will support the union
in the same ratio as those whom they have replaced.
In Laystrom Manufacturing Co., 151 NLRB 1482,
1484-85,10 the Board wrote:
Employee turnover standing alone does not provide
a reasonable basis for believing that the Union had lost
its majority since the prior election. The Board has long
held that new employees will be presumed to support a
union in the same ratio as those whom they have
replaced.? There is no rebuttal of that presumption
here, and no independent evidence from which the
inference may be drawn that the new group of
employees replaced union adherents or that they
supported the Union less strongly than the old group.
Indeed, the Respondent adduced no competent and
probative evidence to establish that any employees, new
or old, no longer wished to be represented by the
Union.
r John S. Swift Company, Inc., 133 NLRB 185, enfd. 302 F.2d 342
(C.A. 7); National Plastic Products Company, 78 NLRB 699, 706, affd.
175 F.2d 755 (C.A. 4). Cf Small Tube Products, Inc., 134 NLRB 867,
afId 319 F .2d 561 (C.A. 3).
and it has since reiterated that position.1'
In N.L.R.B. v. The Little Rock Downtowner, Inc., 414
F.2d 1084 (C.A. 8, 1969), cited and relied on in respon-
dent's brief, the court wrote, on this subject, at page 1091:
The respondent and the Board stipulated to the high
turnover in company personnel since the union was
certified. However, employee turnover alone does not
provide a reasonable basis for concluding that a union
has lost its majority status . N.L.R.B. v. John S. Swift
Co., 7 Cir., 1962, 302 F.2d 342, 345; N.L.R.B. v.
National Plastic Products Co., 4 Cir., 1949, 175 F.2d
9 The precise figure is 70. 17 percent , All percentages hereafter, unless
otherwise noted , are rounded to the nearest two-digit number.
10 Enforcement denied 359 F.2d 799 (C.A. 7, 1966).
11 Printers Service, Inc., 175 NLRB 809, 812, enfd. 434 F.2d 1049 (C.A. 6,
1970); Massey-Ferguson, Inc., 184 NLRB 640, enfd. 78 LRRM 2289 (C A 7,
1971); The National Cash Register Company, 201 NLRB 1034.
i2 At the close of the trial there was discussion concerning the accuracy
319
755, 759; N.L.R.B. v. Small Tube Products, Inc., 3 Cir.,
1963, 319 F.2d 561, 563. Here, there was no independ-
ent evidence from which it may have been inferred that
respondent's new employees did not support the union.
From the foregoing, it follows that Respondent could not
properly rely on mere turnover as justification for a "good
faith doubt" concerning the Union's status as the collec-
tive-bargaining representative of its employees in the unit
and there is no evidence to justify a departure from the
Board's rule stated above. Accordingly, I find that the
Union was supported, on June 12, 1972, by the same
percentage of the employees as that disclosed by the vote
in the Board election, and that the 49-percent membership
on that date connotes the support of the same percentage
of the employees, i.e., 70 percent, as that which manifested
its support of the Union in the election.
(5) The percentage of employee-members of the
Union
Pointer testified that, from the very beginning of the
contract term, he kept a record of the comparison between
the number of employees in the unit at the North facility
and the number of dues-checkoff authorizations on file
there and that it was principally on these figures that he
relied in making his recommendation that Washington
Manor, Inc., refuse to bargain with the Union for a new
contract at the facility which he administered and Duffy
testified that he relied on Pointer's figures reaching back to
the commencement of the contract term in accepting his
recommendation. Duffy further testified that he examined
the figures showing checkoff authorizations at his facility
for the months of March, April, and May in reaching a
similar conclusion with respect to the facility for which he
was the administrator. It was Pointer, however, who
testified that the figures, for both facilities, in revised form,
were supplied to Respondent's counsel for use in the trial
of this case. During the trial, there were received in
evidence, at the request of the parties, several documents
reflecting the names and total number of employees in the
unit at various times and there is considerable testimony,
cross-examination, and argument in the record concerning
the accuracy of the information contained in these
documents. One of these documents, however, represents
the final analysis and refinement of all those which led up
to it. This document was prepared by Respondent's
counsel on the basis of other material in the record: it
shows , as of June 12, 1972, as of the first day of each
month thereafter to and including May 1, 1973, and as of
May 15, 1973, the number of employees in the bargaining
unit and the number of those employees who had executed
checkoff authorizations. The other parties have had ample
opportunity to examine the basic data supporting these
figures and have interposed no objection to them.12 The
of the figures on Resp. Exh. 15, a schedule showing the comparison, on
certain dates, between the number of employees in the unit and the number
of dues-checkoff authorizations on file with Respondent . Respondent's
counsel agreed to prepare a new version of this exhibit and the other parties
were given 15 days from receipt of a copy of the revised exhibit to file any
application concerning it. The revised exhibit was subsequently filed with
me, with a certificate of service on the other parties dated October 5, 1973.
(Continued)
320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union conceded that all of its members in Respondent's
employ in the unit signed checkoff authorizations and that
it delivered them to Respondent. It follows, therefore, and
I find, that this schedule (Respondent's Exhibit 15 as
revised) accurately shows the number of union members
among Respondent's employees in the unit on the dates set
forth therein.13
This schedule shows, as Pointer testified his continuing
survey disclosed to him, that at no time during the term of
the collective-bargaining contract were there checkoff
authorizations on file from a majority of the employees in
the unit, but that the percentage varied between 42 and 49.
It is on the basis of these figures, as objective considera-
tions, that Respondent contends that it was entitled to
entertain a good-faith doubt that the Union was the
collective-bargaining representative of a majority of the
employees in the unit. But this testimony and this
contention disclose Respondent's basic error in reaching its
conclusion not to bargain with the Union; it equates union
support with union membership. It is , however, union
support which is the true test of majority representation.
The Board's rule on this point, as set forth in Terrell
Machine Co., supra, 1481, is as follows:
a showing as to employee membership in, or
actual financial support of, an incumbent union is not
the equivalent of establishing the number of employees
who continue to desire representation by that union.6
There is no necessary correlation between membership
and the number of union supporters since no one could
know how many employees who favor union bargaining
do not become or remain members thereof. According-
ly, the Trial Examiner's finding here that on July 3, only
41 of the 90 employees in the unit were dues-paying
members does not justify his conclusion that on that
date the Union did not represent a majority of the
Respondent's employees.
6 United Aircraft Corporation, supra (TXD); N L.R.B. v. Gulfmont
Hotel Company, supra.
and the rule was recently applied in The National Cash
Register Company, supra.
In determining whether there were objective considera-
tions sufficient to justify a good-faith doubt concerning the
Union's representative status, Respondent was obligated to
consider more than the number of union members in the
unit at any particular time. It should also have taken into
consideration the relationship between the union's majori-
ty vote in the election and the number of checkoff
authorizations at the beginning of the contract term. It
could not, with objectivity, disregard the relationship
between the number of checkoff authorizations filed and
the number of votes for the union by shifting the basis for
determining majority representation to the total number of
employees in the unit and ignore the fact that a substantial
number of eligible voters failed to vote. It could not,
No application has been filed by any other party concerning this exhibit
and, accordingly , the revised version has been placed in evidence,
superseding the one introduced at the trial.
13 Undisputed testimony shows that checkoff authorizations executed by
newly hired employees were not delivered to Respondent until the
completion of the employee's 60-day probationary period and that the
figures in the schedule showing the total number of employees in the unit
therefore, regard the union's support as identical with its
membership. A similar situation, with the same argument,
was before the Board in Gulfmont Hotel Company, 147
NLRB 997, enfd. 362 F.2d 588 (C.A. 5, 1966). Although in
that case the number of employees in the unit on a month-
to-month basis did not appear, the election had resulted in
a 111-106 victory for the union at a time when there were
224 employees in the unit. During the 10 months prior to
the company's determination that the union no longer
represented a majority of the employees, there were
between 64 and 74 checkoff authorizations in effect.
Rejecting the employer's reliance on the number of
checkoff authorizations in effect as its justification for
entertaining a good-faith doubt of the union's majority
representation status, Trial Examiner Boyls wrote, at pages
1001-2:
... the fact that less than a majority have authorized
such checkoffs is immaterial to the issue of majority
status . Employees for various reasons unconnected
with their desire to have a union represent them, may
fail to execute checkoff authorizations. There may be
some who prefer, as a matter of principle, to pay their
financial obligations in person; there may be others
who prefer to decide when and if they can afford to
spare the money for dues and fees; and there may even
be some who are willing to vote for and accept union
representation but who decide to be free riders and
enjoy the expected benefits of representation without
paying for them at all. Accordingly, although the
voluntary signing of checkoff authorizations by a
majority in the unit may be considered as evidence of a
union's majority status, the converse is not true. The
fact that a majority in the unit do not sign such
authorizations has no bearing on the majority issue.
This statement was adopted by the Board, and the court
of appeals, enforcing the Board's Order, wrote (362 F.2d at
591, 592):
No one knows how many employees who favored the
unions had decided not to authorize the company to
deduct union dues or how many who favored union
bargaining were not even members of the unions.
s
The flaw with the respondent' s reasoning here is that
there is no necessary connection between the checkoff
list and the number of union supporters. There was no
compulsory checkoff ... .
The same point was recently repeated by the Board in The
National Cash Register Company, supra.
Respondent's schedule, therefore, is useful but incom-
plete. A practicable basis for estimating union support can
include probationers. A footnote to the schedule , however, states that the
number of existing checkoff authorizations on each date is based on their
date of execution rather than their date of filing with Respondent. Since the
revised schedule was prepared more than 60 days after the last date shown
thereon, it appears that any imbalance resulting from this time lag has been
erased.
WASHINGTON MANOR NURSING CENTER (SOUTH) 321
be derived by applying, to Respondent's figures of union
membership, the relationship between such membership on
June 12 and the manifestation of union support shown in
the election . As found above, the 49-percent membership
on June 12 may properly be regarded as the equivalent of
the 70-percent union support shown in the election. To
determine the extent of union support, as contrasted with
union membership, Respondent should have extended its
schedule to include an additional column, applying this 70
to 49 ratio to each of the figures showing the percentage of
union membership . These two columns would have given
Respondent the following information:
%of Est.%
EInp l . on , of Union
Date Checkoff Support
1972
6/12 49 70.00
7/1 45 64.28
8/1 42 60.00
91/1 49 70.00
10/1 47 67.14
11/1 46 65.71
12/1 47 67.14
1973
1/1 45 64.28
2/1 43 61.42
3/1 42 60.00
4/1 46 65.71
5/1 44 62.85
5/15 44 62.85
From these figures it appears that, on or about March 5,
when Duffy received the Union's request for bargaining,
his survey, if properly adjusted to show union support,
would have informed him that, as of March 1, the union
was supported by 60 percent of the employees in the unit;
that, after April 6 when, he testified, he and Pointer "up-
dated" the figures, they would have shown that the union
was supported by more than 65 percent and thereafter, on
May I and 15, that it was still supported by more than 62
percent. These figures, therefore, would not constitute the
"objective considerations" upon which a good-faith doubt
may be founded. Requiring Duffy and Respondent to
recognize the difference between union membership and
union support does not, in my opinion, place an unfair
burden upon them. Pointer testified that, from the
beginning , he inaugurated and maintained the statistical
14 Although counsel argued , and attempted to prove , that it was not until
shortly before May 7, 1973, that he was retained to advise Respondent, I
find that he was, throughout the contract year , Respondent 's advisor in
matters relating to the Union and this collective-bargaining contract.
15 Although it has been found that Duffy's threat to Surface violated Sec.
8(a)(I) of the Act , it did not represent the type of pervasive interference that
survey of the relationship between the number of union
members and the total number of employees in the unit
and Duffy testified that Pointer persuaded him of the
validity of this view of the problem. Accordingly, it is not
improper to hold Duffy and Respondent to the results of
the type of investigation they adopted. Moreover Respon-
dent had the assistance of specialized labor counsel
throughout the period 14 prior to concluding that it would
not bargain with the union.
From all of the foregoing evidence, I find that Respon-
dent did not have, on the basis of objective considerations,
a good-faith doubt concerning the Union's status as
collective-bargaining representative of the employees in the
unit and that its refusal to bargain constitutes a violation of
Section 8(a)(5) and (1) of the Act.15
5. The effect of the unfair labor practices upon
commerce
The activities of Respondent, set forth in findings of fact
2 and 4, occurring in connection with its operations
described in finding of fact 1, 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
thereof.
6. The remedy
Having found that Respondent has engaged in unfair
labor practices, I shall recommend that it cease and desist
therefrom and take affirmative action designed to effectu-
ate the purposes of the Act.
Having found that Respondent, by threatening employee
Surface with discharge unless he withdrew from the Union,
interfered with, restrained, and coerced employees in their
exercise of rights guaranteed by Section 7 of the Act, I shall
recommend that it cease and desist from a repetition of
that and similar activities.
Having found that Respondent, by refusing to recognize
and bargain with the Union as the collective-bargaining
representative of the nurses aides, orderlies, maids, kitchen
help, maintenance employees, receptionist, and laundresses
employed by it, committed an unfair labor practice, I shall
recommend that it recognize and bargain with the Union
as the representative of those employees and embody, in a
written contract, any agreement reached with the union.
Upon the foregoing findings of fact and upon the entire
record herein, I reach the following:
CONCLUSIONS OF LAW
1. Respondent 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. At the time of the activities set forth in the Decision,
is cited in some cases as major support for a finding of lack of good-faith
doubt . The finding herein is on the basis of the actual support for the Union
evidenced by the statistical method used by Respondent but with the results
which, I find , that method would have disclosed to Respondent had it
applied the correct standard to the statistics.
322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thomas E. Duffy was an officer and supervisor of
Respondent within the meaning of Section 2(11) of the Act
and acted as its agent.
4. By threatening Robert Surface with discharge unless
he withdrew or resigned from the Union, Respondent
interfered with, restrained, and coerced employees in their
exercise of rights guaranteed by the Act and committed an
unfair labor practice within the meaning of Section 8(a)(1)
of the Act.
5. All full-time and regular part-time employees em-
ployed at the Respondent's Washington Manor Nursing
Center (South) located at 7300 McEwen Road, Centerville,
Ohio, including nurses aides, orderlies, maids, kitchen help,
maintenance employees, receptionist, and laundresses, but
excluding all licensed practical nurses, co-op students, the
beautician, the dietary consultant, registered nurses,
doctors, and all other professional employees, guards, and
supervisors as defined in the Act, constitute a unit
appropriate for the purpose of collective bargaining within
the meaning of Section 9(a) of the Act.
6. Since October 20, 1971, and down to date, the Union
has been the exclusive collective-bargaining representative
of Respondent's employees in the unit described in
Conclusion of Law 4, above.
7. By failing and refusing, since May 7, 1973, to
bargain with the Union as the collective-bargaining
representative of the employees in the unit described in
Conclusion of Law 4, above, Respondent has committed
an unfair labor practice within the meaning of Section
8(a)(5) of the Act.
8. By the conduct described in Conclusion of Law 7,
Respondent has interfered with, coerced, and restrained
employees in the exercise of rights guaranteed in the Act
and has committed an unfair labor practice within the
meaning of Section 8(a)(1) of the Act.
9. The foregoing unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
on the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ville, Ohio, including nurses aides, orderlies , maids,
kitchen help, maintenance employees , receptionist, and
laundresses, but excluding all licensed practical nurses,
co-op students , the beautician, the dietary consultant,
registered nurses, doctors , and all other professional
employees , guards , and supervisors as defined in the
Act.
(c) In any like or related manner, interfering with,
restraining, or coercing employees in the exercise of their
right to self-organization, or to engage in concerted
activities for the purpose of collective bargaining and other
mutual aid or protection, or to refrain from any and all
such activities, except insofar as membership in a labor
organization may be required pursuant to a collective-
bargaining contract not inconsistent with Section 8(a)(3) of
the Act.
2. Take the following affirmative action to effectuate
the policies of the Act:
(a) Upon request, meet and bargain with National Union
of Hospital and Nursing Home Employees, Local 1199H,
Retail, Wholesale and, Department Store Union, AFL-CIO,
as the exclusive representative of all employees in the
unit described in paragraph 1(b), above, and, if any
understanding is reached, embody it in a signed agreement.
(b) Post at its nursing home at 7300 McEwen Road,
Centerville, Ohio, copies of the attached notice marked
"Appendix." 17 Copies of said notice, on forms provided by
the Regional Director for Region 9, after being duly signed
by its representative, shall be posted by it immediately
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 it to insure that
said notices are not altered, defaced, or covered by any
other material.
(c) Notify the Regional Director for Region 9, in writing,
within 20 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
The allegations of the complaint, insofar as not found by
the Decision to be violative of the Act, are hereby
dismissed.
ORDER 16
Respondent, Washington Manor, Inc., doing business as
Washington Manor Nursing Center (South), Centerville,
Ohio, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Threatening any employee with discharge unless he
or she resigns or withdraws from National Union of
Hospital and Nursing Home Employees, Local 1199H,
Retail, Wholesale and Department Store Union, AFL-
CIO, or any other labor organization.
(b) Refusing to bargain with National Union of Hospital
and Nursing Home Employees, Local 1199H, Retail,
Wholesale and Department Store Union, AFL-CIO, as the
collective-bargaining representative of employees in the
unit described as follows:
All full-time and regular part-time employees employed
at the Respondent's Washington Manor Nursing
Center (South) located at 7300 McEwen Road, Center-
16 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
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.
17 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 read "Posted Pursuant
to a Judgment of The United States Court of Appeals Enforcing an Order
of the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The trial held at Moraine, Ohio, on September 18, 19, and
20, 1973, at which all parties were afforded an opportunity
to present evidence, has resulted in a Decision that
WASHINGTON MANOR NURSING CENTER (SOUTH) 323
National Union of Hospital and Nursing Home Employ-
ees, Local 1199H, Retail , Wholesale and Department Store
Union , AFL-CIO, is the collective-bargaining representa-
tive of:
All full-time and regular part-time employees employed
at the Washington Manor Nursing Center (South)
located at 7300 McEwen Road, Centerville, Ohio,
including nurses aides, orderlies , maids , kitchen help,
maintenance employees , receptionist , and laundresses,
but excluding all licensed practical nurses, co-op
students, the beautician, the dietary consultant, regis-
tered nurses , doctors , and all other professional
employees , guards , and supervisors as defined in the
Act;
that we have been, and are, required by the National Labor
Relations Act to bargain with it for those employees; and
that, when we refused to bargain with it, we had no good
reason to doubt its status as such representative.
The Decision also found that we had threatened Robert
Surface with discharge unless he withdrew or resigned
from the said union.
In accordance with that Decision, and to assure our
employees that we will not interfere with their rights under
the Act, we hereby state that:
WE WILL NOT threaten any employee with discharge
unless he or she withdraws or resigns from the above-
named Union, or any other union; and
WE WILL, upon request, bargain with the said labor
organization about the wages , hours, and working
conditions of all employees represented by the said
labor organization and, if any agreement is reached, we
will embody it in a written contract.
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, or to engage
in concerted activities for the purpose of collective
bargaining and other mutual aid or protection, or to
refrain from any and all such activities, except insofar
as membership in a labor organization may be required
pursuant to a collective-bargaining contract not incon-
sistent with Section 8(a)(3) of the Act.
Dated By
WASHINGTON MANOR, INC.,
DOING BUSINESS AS
WASHINGTON MANOR
NURSING CENTER (SOUTH)
(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,
Federal Office Building, Room 2407, 550 Main Street,
Cincinnati, Ohio 45202, Telephone 513-684-3686.