A. W. Schlesinger Geriatric Center

National Labor Relations Board - Board Decisions

Aug 26, 1991

304 N.L.R.B. 296 (N.L.R.B. 1991)

296
304 NLRB No. 43
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 An unpublished Order not included in bound volumes of Board decisions.
On June 7, 1990, the Board denied the Respondent’s motion for reconsider-
ation of order remanding.
2 The General Counsel’s response to the judge’s order on remand averred
that these seven pages of signatures constituted the showing of interest filed
by the Petitioner in support of the petition in Case 23–RD–572. No petition
was submitted to the judge by the Regional Office.
3 The judge also submitted to the Board a copy of his order on remand, a
copy of his order denying motion, admitting evidence, and closing record on
remand, and a copy of the Respondent’s objection to admission of documents,
with covering letter.
4 The General Counsel and the Charging Party have excepted to some of
the judge’s credibility findings. The Board’s established policy is not to over-
rule an administrative law judge’s credibility resolutions unless the clear pre-
ponderance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d
Cir. 1951). We have carefully examined the record and find no basis for re-
versing the findings. In addition, the General Counsel asserts that the judge’s
failure to discuss certain discredited evidence demonstrates bias or prejudice.
See ALJD, sec. II, fn. 5. On careful examination of the judge’s decision and
the entire record, we are satisfied that the contention is without merit. 5 All subsequent dates are in 1985, unless stated otherwise.
A. W. Schlesinger Geriatric Center and Service
Employees International Union, Local 706,
AFL–CIO. Cases 23–CA–10109, 23–CA–10129,
23–CA–10165, and 23–CA–10188
August 26, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On March 31, 1986, Administrative Law Judge Rus-
sell M. King Jr. issued the attached decision. The Gen-
eral Counsel and the Charging Party filed exceptions
and supporting briefs, and the Respondent filed an an-
swering brief.
On April 19, 1990, the National Labor Relations
Board remanded this case to the judge with the instruc-
tion that he reopen the record for the sole purpose of
obtaining from the Board’s Regional Office, entering
into evidence, and transmitting to the Board, a copy of
the decertification petition filed in Case 23–RD–572
on August 1, 1985.1 Pursuant to this remand, on July
9, 1990, the judge admitted into evidence seven pages
of employees’ signatures received from the Regional
Office,2 closed the record in the case, and transferred
to the Board the seven signature pages.3
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 de-
cided to affirm the judge’s rulings, findings,4 and con-
clusions only to the extent consistent with this Deci-
sion and Order.
For the reasons set forth below, we agree with the
judge’s dismissal of complaint allegations that the Re-
spondent violated Section 8(a)(5) of the Act by refus-
ing to furnish the Union with requested information,
by unilaterally abrogating the contractual grievance-ar-
bitration procedure, and by suspending bargaining and
withdrawing recognition from the Union. In light of
our finding that the Respondent lawfully withdrew rec-
ognition from the Union on August 2, 1985,5 we also
adopt the judge’s dismissal of complaint allegations
that the Respondent violated Section 8(a)(5) by refus-
ing to allow a union representative to enter the Re-
spondent’s facility on August 6, and by unilaterally re-
ducing unit employees’ wages in October 1985.
Further, we adopt the judge’s finding that the em-
ployees’ July 1 to September 3 strike was an economic
strike for its duration, and his finding that the Re-
spondent did not unlawfully refuse to reinstate striking
employees immediately on their unconditional offer to
return to work. We reverse the judge, however, and
find that the Respondent violated Section 8(a)(3) by
treating employee Logie Rideaux as a striker and fail-
ing to reinstate her when she was ready to return to
work from disability leave.
The Respondent and the Union were parties to a col-
lective-bargaining agreement which was effective from
June 17, 1984, to June 30, 1985, and covered a unit
of service and maintenance employees at the Respond-
ent’s nursing home. On May 24, 1985, the parties
began negotiations for a new contract. They engaged
in 14 bargaining sessions between May 24 and July
18, but failed to reach an agreement. On June 28, the
Union’s membership authorized a strike which began
on July 1 and ended on September 3. Also on June 28,
the Respondent’s attorney sent a mailgram to the
Union’s business agent stating that the Respondent
would no longer be obligated to arbitrate grievances
once the contract had expired, but that it would arbi-
trate all grievances presented to the Respondent before
the expiration of the contract. Two unit employees
filed a decertification petition on August 1. On August
2, the Respondent suspended bargaining and withdrew
recognition from the Union. When the strike ended on
September 3, the Respondent established a preferential
hiring list of the striking employees and began to re-
hire them as vacancies occurred.
1. The complaint alleges that the Respondent vio-
lated Section 8(a)(5) by refusing to provide the Union
with requested information concerning the wages of
nonunit employees during four collective-bargaining
meetings in June 1985. The complaint also alleges the
Respondent unlawfully refused to provide information
requested by the Union in writing in July, August,
September, and October. These written requests sought
information regarding employees hired for unit jobs
during the strike, terms and conditions of employment
of all unit employees, and copies of all disciplinary ac-
tions since July 1. The written requests also covered
group health plan description and costs, and wage and
benefit changes for nonunit personnel.
297A. W. SCHLESINGER GERIATRIC CENTER
6 At the beginning of the negotiations, the Respondent posted at the facility
a memorandum to employees, dated June 3, stating that ‘‘all office and super-
visory personnel have had to accept reduced wages as of January 1, 1985.’’
7 Requests for information need not be in writing or expressed in any par-
ticular form to give rise to a duty to provide information. LaGuardia Hospital,
260 NLRB 1455 (1982). We find, however, that in the context of the bargain-
ing at issue here, the Union’s requests were not made in a manner that suffi-
ciently put the Respondent on notice that a more detailed response was re-
quired.
Early in the negotiations, the Respondent’s attorney
and chief negotiator, John Durkay, stated that the Re-
spondent believed that the unit’s wage scale was above
area standards, and therefore the Respondent wanted
the Union to agree to a reduction in wages. Durkay
consistently maintained, however, that the Respondent
was not claiming an inability to pay the current con-
tract wages. Faced with this wage concession demand,
the Union’s chief negotiator, Richard Hall, asked
Durkay during the June 18 bargaining session whether
nonbargaining unit employees were going to have their
wages cut.6 Hall told Durkay that the Union did not
think that only unit employees should be asked to take
cuts in wages and benefits. Durkay responded that at
that time the Respondent had not yet made a decision
regarding the fringe benefits of nonunit employees, and
that no changes in nonunit wages or benefits had been
made. Durkay added that, in any event, the matter of
nonunit employees’ wages and benefits was not a rel-
evant topic for bargaining and none of the Union’s
business.
Hall asked again at the June 20 meeting whether
only the bargaining unit employees were being cut,
and were any nonunit employees going to have their
wages and benefits reduced. Hall told Durkay that the
issue of ‘‘fairness’’ was very important to the unit em-
ployees, and that they needed to know if the cuts
would be widespread and whether other, nonunit em-
ployees would be asked to make a sacrifice. Hall asked
Durkay why the management staff, nursing staff, and
clerical staff were not being asked to share in the cuts.
Durkay replied that some nonunit staff and manage-
ment personnel were going to take a cut in hours.
Durkay added that since January 1 the Respondent had
eliminated a number of supervisory positions, and that
senior staff had been reduced from 9 or 10 to about
5. Further, in response to the Union’s questioning at
the June 24 meeting, the Respondent confirmed that
nurses had been told that they would not receive a pay
cut. Finally, at the end of the bargaining meeting on
June 26, Hall asked Durkay whether the Respondent
wanted to provide information about what was going
to be done with nonbargaining unit personnel, and
asked if Durkay understood the relevance of that infor-
mation. Hall testified that he did not receive a response
from Durkay at that meeting.
The Union’s first written request for wage and bene-
fit information about nonunit employees was given to
the Respondent at the bargaining session of July 18,
the last session before the Respondent’s suspension of
bargaining and withdrawal of recognition. This written
request also asked for detailed information concerning
(1) employees hired since the beginning of the strike
on July 1, (2) health plan costs, (3) monthly patient
day averages, (4) profit-and-loss statements, and (5)
statements of assets and liabilities. The record shows
that it was the practice of the parties to respond to
written information requests at the next bargaining ses-
sion. As noted above, no bargaining sessions were held
after July 18.
In finding that the Respondent did not unlawfully
refuse to furnish wage and benefit information regard-
ing nonunit employees during the June sessions, the
judge found that the requested wage information con-
stituted financial information and therefore was not rel-
evant to any bargainable issues because the Respond-
ent was not claiming an inability to pay wage in-
creases, but rather was stating an unwillingness to do
so. For the same reason, the judge found that the infor-
mation sought by the Union’s July 18 written request
was not relevant to any then-existing bargainable
issues, and therefore the Respondent’s failure to re-
spond to the request was not unlawful.
Although we agree that the Respondent did not un-
lawfully refuse to provide requested information, we
do so for reasons different from those advanced by the
judge. Our review of the record demonstrates that dur-
ing the June meetings there were no requests by the
Union for information regarding nonunit employees
that created an obligation on the part of the Respond-
ent to supply such information. The Union’s questions
and statements concerning how the nonunit employees
would be treated did not constitute clear and definite
requests for information sufficient to trigger a duty of
disclosure on the part of the Respondent. The record
shows that the Union’s established practice in bargain-
ing with the Respondent was to make information re-
quests in writing. We conclude that the Union’s pur-
ported oral ‘‘information requests’’ made during the
four sessions in June were more in the nature of state-
ments of the Union’s bargaining position, and were not
specific and precise enough to put the Respondent on
adequate notice that it was being asked to provide cer-
tain information in order to further the course of the
negotiations.7 Thus, we agree with the judge’s dismis-
sal of the complaint allegations regarding the Union’s
queries about nonunit employees’ wages and benefits
during the June bargaining sessions.
The Union did make a written and specific informa-
tion request on July 18. The portions of this request
relating to newly hired replacement employees and
health plan costs are presumptively relevant to bargain-
ing. Given the parties’ acknowledged practice of re-
sponding to information requests at the next bargaining
298 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 In light of our disposition of this issue, we find it unnecessary to reach
the issue of whether the information requested regarding nonunit employees’
wages and benefits was relevant to bargainable issues.
session, however, the Respondent’s obligation to pro-
vide the aforementioned information was rendered
moot by the Respondent’s lawful withdrawal of rec-
ognition on August 2, discussed below. The parties
had no more bargaining sessions after the one held on
July 18, when the written information request was
given to the Respondent, and there is no contention
that the Respondent should have complied with the re-
quest before August 2. Further, in light of the Re-
spondent’s lawful withdrawal of recognition on August
2, it had no duty to comply with any of the Union’s
information requests made after that date. Accordingly,
we affirm the judge’s dismissal of the complaint alle-
gations pertaining to the Respondent’s failure to supply
requested information.8
2. In affirming the judge’s finding that the Respond-
ent did not violate Section 8(a)(5) of the Act by abro-
gating the grievance-arbitration clause in the expired
collective-bargaining agreement, we do not rely on the
judge’s reasoning, but rather on our conclusion that the
Respondent’s conduct did not constitute a repudiation
of the grievance-arbitration procedure.
The record shows that on June 29, 1985—the day
before the parties’ last collective-bargaining agreement
expired—the Respondent sent a mailgram to the Union
stating, inter alia, that the Respondent was no longer
obligated to arbitrate grievances because the existence
of a written collective-bargaining agreement is a pre-
requisite to the arbitrator’s jurisdiction. The Respond-
ent added, however, that it would agree to arbitrate all
grievances presented to it prior to the expiration of the
contract. Further, at a bargaining session earlier that
day, the Respondent’s attorney and chief negotiator
told the Union’s negotiators that the Respondent’s po-
sition was that ‘‘we still do have to handle the griev-
ances through the grievance procedure and we may
well arbitrate the grievances but we are not bound to
do so, and all those that arose prior to the termination
of the contract, we would be bound to arbitrate.’’
The collective-bargaining agreement expired at mid-
night on the morning of July 1, 1985, and the employ-
ees began a strike at that time. No grievances were
filed after the strike began.
Based on credited testimony of the Respondent’s at-
torney, the judge found that it was the parties’ ‘‘inten-
tion and understanding’’ that the ‘‘no-strike clause and
the arbitration clause were linked together, and that
when one fell the other also fell.’’ Accordingly, the
judge concluded that the Respondent did not violate
the Act by abrogating the grievance-arbitration clause
in the expiring contract.
Contrary to the judge, we do not view the Respond-
ent’s statements to the Union when viewed together as
constituting a refusal to process grievances to arbitra-
tion. Although the Respondent posited that it was not
obligated to arbitrate grievances after the contract ex-
pired, the Respondent also stated that it would con-
tinue to arbitrate all grievances presented to it prior to
the expiration of the contract and that it ‘‘may well ar-
bitrate the grievances’’ arising thereafter. Under these
circumstances, the Respondent’s comments did not rise
to the level of being a total repudiation of an obliga-
tion to arbitrate and did not violate Section 8(a)(5) and
(1) of the Act. See Indiana & Michigan Electric Co.,
284 NLRB 53 (1987).
3. The judge found that the Respondent’s with-
drawal of recognition from the Union on August 2,
1985, was lawful because the Respondent had clear
and convincing evidence of actual loss of majority sta-
tus by the Union through the Respondent’s knowledge
that a majority of unit employees had signed petitions
stating that they no longer desired to be represented by
the Union. The judge also found that, even if the Re-
spondent did not have sufficient evidence of the
Union’s actual loss of majority status, the Respondent
had a reasonably grounded good-faith doubt concern-
ing the Union’s majority status in view of oral repudi-
ations of the Union by a substantial number of em-
ployees, the crossing of a ‘‘hostile’’ picket line by
large numbers of employees despite picket line mis-
conduct, and the Respondent’s knowledge of the ‘‘de-
certification’’ petitions mentioned above. For the rea-
sons set forth below, we agree that the Respondent’s
withdrawal of recognition did not violate Section
8(a)(5) and (1).
The record shows that on August 1, 1985, employ-
ees Thibodeaux and Walker filed with the Board’s Re-
gional Office a decertification petition with 142 unit
employees’ signatures. Earlier that day, Thibodeaux
told Supervisor Larkins about the petition and showed
her the petition’s six pages of signatures. Larkins
photocopied 4 of the 6 sheets of the petition; these 4
pages contained 93 signatures. After Thibodeaux and
Walker returned from the Board’s Regional Office,
they again informed Larkins that the petition contained
142 names, and told her that another petition of mostly
night-shift employees with 25 to 30 signatures had
been lost. On the evening of August 1, Larkins told
Personnel Director Rogers about the petition and Rog-
ers reported it to Executive Director Smith, who told
Attorney Durkay about it. The next morning, August
2, Larkins, Rogers, Smith, and Durkay discussed the
decertification petition, as well as the union sentiments
of the unit employees who then were working for the
Respondent, and determined that the Union no longer
had majority support. At that morning’s meeting of the
negotiating teams, Durkay announced that because of
the pending decertification petition he was suspending
negotiations, and thereafter the meeting ended.
299A. W. SCHLESINGER GERIATRIC CENTER
9 We do not rely on the implication in the judge’s decision that August 6
is a relevant date for determining whether the Respondent had a basis for be-
lieving that the Union had lost its majority status. Instead, the crucial date is
August 2, when the Respondent ‘‘suspended’’ bargaining. The complaint al-
leges that August 2 was the date on which the Respondent withdrew recogni-
tion from the Union, and we agree. Accordingly, the second petition shown
by Walker to Larkins on August 6 is immaterial to our resolution of this case.
10 The Respondent’s executive director, Emma Smith, testified on direct ex-
amination that on August 2 the Respondent employed an estimated 310–312
unit employees.
11 Contrary to the General Counsel’s contentions, we find that there is ample
evidence establishing that the striker replacements were hired on a permanent
basis. Thus, despite the statements of the Respondent’s attorney to the Union’s
negotiators that the status of the strikers was subject to bargaining, the Re-
spondent informed the Union on June 29, 1985, that effective on the following
July 2, the Respondent would begin hiring permanent replacements to fill the
strikers’ positions. At the commencement of the strike on July 1, the Respond-
ent began hiring replacements. Although it is not clear that all the employees
hired beginning on July 1 were told at that time that they were being hired
on a permanent basis, around the third week of July the Respondent initiated
a series of meetings, in response to various concerns expressed by the replace-
ments as to their status at the strike’s conclusion, at which the Respondent
told the replacements that they had been hired on a permanent basis.
On August 6, employee Walker obtained 42 more
signatures on a second petition of night-shift employ-
ees. Walker showed this petition to Larkins, who
photocopied it. This petition contained 11 duplicates of
signatures on the first petition of 142 names. On the
same date, Attorney Durkay wrote a letter to Union
Official Hall which stated that the Respondent had a
good-faith doubt regarding the unit employees’ major-
ity support for the Union, and therefore ‘‘active collec-
tive bargaining’’ would remain ‘‘suspended.’’
The judge concluded that based on the 167 to 172
signatures that Supervisor Larkins had seen or been
told about (the 142 on the petition and the 25–30 on
the alleged ‘‘lost’’ petition of night-shift employees),
as of August 2, the Respondent had evidence of actual
loss of majority status by the Union. Further, in light
of the 31 new signatures on employee Walker’s Au-
gust 6 petition (the judge mistakenly stated 32), the
judge found that as of August 6, Larkins had seen the
signatures of 174 (actually 173) different employees on
the decertification petitions by the time of Durkay’s
August 6 letter to the Union advising it that the Re-
spondent was suspending bargaining based on a good-
faith doubt of the Union’s continued majority status.
The judge concluded that all these circumstances dem-
onstrated that the Respondent had clear and convincing
evidence of the actual loss of majority status by the
Union.
Nevertheless, the judge found that, even assuming
there was insufficient evidence of the Union’s actual
loss of majority status, given the total circumstances of
the case, the Respondent had a reasonably grounded
good-faith doubt about the Union’s continued majority
status. In this regard, the judge relied on (1) detailed
testimony by supervisors concerning oral repudiations
of the Union by at least 84 employees; (2) the crossing
of the ‘‘hostile’’ picket line by the replacement em-
ployees despite picket line misconduct and property
damage by strikers; and (3) the Respondent’s knowl-
edge that a majority of the unit employees had signed
the decertification petitions. Although we agree with
the result reached by the judge, we do not agree with
his entire analysis of the record evidence, as explained
below.
The threshold determination that we must make con-
cerns the size of the unit on August 2, when the Re-
spondent withdrew recognition.9 There is an unre-
solved dispute in this case concerning the number of
employees in the unit during the first week of August.
The judge admitted into evidence two lists offered by
the Respondent which assertedly showed how many
unit employees there were on August 2. One of these
lists was labeled ‘‘Employees Working 8/1/85’’ and it
contained 178 names. The other list, labeled ‘‘Employ-
ees on Strike or Leave of Absence 8/1/85,’’ contained
125 names. Thus, adding these 2 lists together, the Re-
spondent argues that there were 303 employees on Au-
gust 2.10
The General Counsel and the Union allege that there
were 329 unit employees on August 2. They contend
that there were 26 names of striking employees im-
properly omitted from the Respondent’s list of employ-
ees on strike or on leave of absence, and that they
must be counted in computing the size of the unit on
August 2. In support of this contention, a list of these
26 names was offered by the Union and accepted into
evidence by the judge. The Respondent contends that
the individuals appearing on this list were not em-
ployed on August 2 because 20 had been discharged
for picket line misconduct and 6 were voluntary quits
before August 2. The judge did not make an exact
finding on the size of the unit because he found that
even assuming the General Counsel’s 329 figure, the
Respondent still had proof of actual loss of majority
status because it knew that 167–172 employees had
signed decertification petitions. The judge, however,
appeared to conclude that the total number of unit em-
ployees on August 2 was 302, based on testimony con-
cerning the number of employees in the prestrike unit
and the number of new employees hired during the
strike.11
After reviewing all the above evidence, we conclude
that the unit had 329 employees as of August 2, when
the Respondent withdrew recognition. Although the
Respondent contends that 20 of the individuals appear-
ing on the Union’s list of additional employees had
been discharged for picket line misconduct, none of
these individuals had been so advised by the Respond-
ent as of August 2, and there are no personnel records
or any other documentary evidence to support the Re-
spondent’s contention. Further, there is no evidence,
aside from Executive Director Smith’s testimony, that
the other six employees on the list resigned their em-
ployment prior to August 2. On the state of this record,
300 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 See, e.g., Destileria Serralles, 289 NLRB 51 (1988). Because we have
found that the Respondent did not unlawfully refuse to provide information
to the Union, this withdrawal of recognition was made in a context free of
unfair labor practices.
13 The decertification proceeding, Case 23–RD–572, had been ‘‘administra-
tively dismissed’’ pending the outcome of the unfair labor practice charge that
had been filed by the Union against the Respondent on July 19, 1985.
14 In doing so, the Board found no merit to the General Counsel’s position
concerning preserving the confidentiality of the signers of the petition because
Larkins had already seen the petition and therefore receipt of the petition into
evidence would not disclose the identity of any signers which had not pre-
viously been disclosed to the Respondent.
15 Although the General Counsel’s exceptions argue that the judge’s good-
faith doubt finding was incorrect, the General Counsel has never questioned
the existence of the petition nor argued that the petition had less than 142
names on it.
we find that the Respondent has failed to prove that
the additional 26 individuals in fact were discharged or
quit their jobs, and therefore we shall count them as
part of the unit on August 2.
The Respondent’s withdrawal of recognition from
the Union was lawful only if the Respondent is able
to show that the Union actually lost majority support,
or that the Respondent had a reasonably grounded
good-faith doubt, based on objective factors, concern-
ing the Union’s continued majority status.12
We need not address the issue whether the Respond-
ent proved actual loss of majority status because we
find that the Respondent had objective grounds for a
reasonable good-faith doubt of the Union’s continued
majority status. In order to satisfy its burden of proof
in this regard, the Respondent offered as evidence the
existence of the first decertification petition, statements
by a significant number of employees allegedly repudi-
ating the Union, and employees’ crossing of the picket
line and working during the strike. With respect to the
petition, the judge credited testimony that the Respond-
ent’s agent, Supervisor Larkins, reviewed 6 pages with
142 employees’ signatures repudiating the Union, and
that these pages were filed with the Board’s Regional
Office as a decertification petition. As mentioned ear-
lier, Larkins photocopied 4 of the 6 pages of this peti-
tion, and these 4 pages contained 93 signatures.
The four pages of the petition that Larkins had
photocopied were accepted into evidence during the
hearing before the judge, but the entire petition was
never made part of the record. On the first day of the
hearing, the Respondent caused to be issued on the
Board agent to whom the petition had been delivered
a subpoena duces tecum which called for the produc-
tion of the decertification petition case file.13 At the
hearing, the judge granted the General Counsel’s mo-
tion to quash the subpoena. In refusing to comply with
the Respondent’s subpoena, the General Counsel stated
that ‘‘generally, this agency does not disclose a peti-
tioner’s showing of interest in a representation case
due to its need to preserve the confidentiality of this
type of document.’’ Thus, the record initially presented
to the Board for review contained only 93 of the 142
names appearing on the August 1 petition.
The Board subsequently decided that in order to as-
certain whether the Respondent established a good-
faith doubt or a showing of actual loss of majority, it
was necessary for the Board to review all 142 names
on the 6 pages of the petition. Not only would this
corroborate the testimony regarding the number of sig-
natures on the petition, but it would also enable the
Board to compare the names on the petition with the
names of those employees who made antiunion state-
ments to supervisors to ensure that an employee was
only counted once for purposes of determining the
number of unit employees who had rejected continued
union representation. Accordingly, the Board, by Order
dated April 19, 1990, reversed the judge’s quashing of
the Respondent’s subpoena to the extent that it called
for the production of the decertification petition filed
on August 1, 1985, and remanded to the judge for a
reopening of the record for the limited purpose of ob-
taining from the Board’s Regional Office a copy of the
petition and transmitting that petition to the Board.14
In response to the remand order, the General Coun-
sel forwarded to the judge seven pages of employees’
signatures, that the General Counsel identified as the
showing of interest supporting the decertification peti-
tion. Two of these pages are the second petition con-
taining 42 signatures obtained by employee Walker on
August 6. These two pages already were admitted into
evidence during the hearing, and in any event, are ir-
relevant to our determination here because they were
obtained after the Respondent withdrew recognition
from the Union. The General Counsel, however, for-
warded to the judge only five of the six pages of em-
ployees’ signatures submitted to the Regional Office as
the showing of interest supporting the decertification
petition. Four of these five pages already were part of
the record, having been admitted into evidence during
the hearing. The fifth page, which is the only new
piece of evidence resulting from the Board’s remand,
contains 19 additional names. Thus, there are now 112
signatures of employees who signed the first decerti-
fication petition in evidence. The General Counsel has
not explained the absence of the sixth page of em-
ployee signatures, and we must conclude that the re-
maining page is currently unavailable to the Regional
Office.
We note that the General Counsel has never con-
tended that the petition had less than 142 signatures of
unit employees. Further, the credited testimony shows
that, when the petition was filed by employees
Thibodeaux and Walker on August 1, the Regional Of-
fice agent counted the names on the petition and ac-
knowledged that the petition consisted of 6 pages with
142 signatures.15 Because of the General Counsel’s
failure to forward the sixth page of signatures to the
judge, there is a possibility that there may be some
301A. W. SCHLESINGER GERIATRIC CENTER
16 Most of these statements were made during the first 2 weeks in July, after
commencement of the strike.
17 Obviously, an employee who both signed the first petition and made an
antiunion remark to a supervisor must be counted only once in ascertaining
employee disaffection from the Union.
18 These statements fall into one of three types: (1) the employee wanted
no part of the Union; (2) the employee did not care to have a union or have
the Union’s business agent represent him or her; and (3) the employee did not
need the Union to speak for him or her.
19 Specifically, these are the statements attributed to employees Karen Judge,
Shirley Walker, Wilma Barnett, Gloria Roundtree, and Ruby Lee Hill.
20 In view of this conclusion, we find it unnecessary to address the evidence
that employees, including striker replacements, crossed allegedly hostile picket
lines in the face of threats, name-calling, and damage to property at the facil-
ity.
In this regard, the judge cited Pennco, Inc., 250 NLRB 716 (1980), enfd.
684 F.2d 340 (6th Cir. 1982), for the proposition that strike replacements are
presumed to support an incumbent union in the same ratio as the employees
they replaced. The judge found that the Pennco presumption had been rebutted
here. We note that subsequent to the judge’s decision, the Board in Station
KKHI, 284 NLRB 1339 (1987), overruled Pennco and abandoned this pre-
sumption. In Station KKHI, the Board held that it will not apply any presump-
tion concerning the union sentiments of strike replacements, but will review
each case on its facts with respect to whether the employer has offered evi-
dence of employees’ expressed desires to repudiate the union sufficient to
overcome the overall presumption of continuing union majority status. Apply-
ing Station KKHI to the facts of this case, we have found that the Respondent
has shown sufficient objective considerations to support a good-faith belief
that the Union lacked majority support.
21 Rideaux’s status as a nonstriker was not affected by the fact that she was
seen on the picket line and, at the end of the strike when the Union tendered
to the Respondent the unconditional offer to return to work on behalf of the
strikers, Rideaux’s name was included on the list of those for whom the Union
was seeking reinstatement. The Union’s inclusion of Rideaux in its blanket re-
turn-to-work offer does not satisfy the Respondent’s burden to prove that
Rideaux’s disability status had ended before the cessation of the strike.
overlap between the individuals who signed that miss-
ing page and the individuals who made oral statements
to supervisors repudiating the Union. We have de-
cided, however, that this uncertainty must be resolved
in the Respondent’s favor because it has done all that
is possible to include the entire petition in the record.
In view of these circumstances, we find that the Re-
spondent has satisfied its burden to show that its agent
reviewed an employee petition with 142 names prior to
its August 2 withdrawal of recognition, although we
are able to examine only 112 of those names.
In addition to the signatures on the first decertifica-
tion petition, the judge also relied on a number of
statements made to supervisors by employees—both
nonstrikers and replacement employees—as justifying
the Respondent’s good-faith belief of the Union’s loss
of majority support. In this regard, the credited testi-
mony and a stipulation by the parties shows that 78
different employees, cited by name, made statements
to 5 supervisors criticizing or disavowing the Union
prior to the Respondent’s withdrawal of recognition on
August 2.16 An examination of the pages of signatures
in the record demonstrates that of these 78 employees,
33 signed the August 1 petition. Thus, for purposes of
determining whether the Respondent had an objective
basis for a good-faith doubt of the Union’s continued
majority status, the statements made by the 45 employ-
ees who had not signed the petition are material.17 Of
these 45 employees, we find that the statements of 40
demonstrate that they had repudiated the Union and no
longer wished to be represented by it for collective-
bargaining purposes.18 The evidence concerning the
statements of the remaining five employees is either
too sketchy or questionable to constitute evidence of
good-faith doubt because, although they may indicate
disagreement with the strike or rejection of the Union’s
conduct, they do not necessarily manifest a desire not
to be represented by the Union.19 Accordingly, in light
of the 142 names on the decertification petition that
the Respondent had seen and the evidence showing
that an additional 40 employees had expressly repudi-
ated the Union prior to August 2, we find that the Re-
spondent had objective reasons for a reasonable good-
faith doubt of the Union’s majority status, and there-
fore its August 2 withdrawal of recognition was law-
ful.20
4. The judge dismissed the complaint allegation that
the Respondent unlawfully refused to reinstate em-
ployee Logie Rideaux on September 5, 1985. The
judge found that the Respondent properly treated
Rideaux as a striking employee and placed her on the
preferential hiring list of striking employees. We dis-
agree, and find that the Respondent violated Section
8(a)(3) by its treatment of Rideaux.
Rideaux was on disability leave from her position as
a nurses aide beginning in mid-May 1985. In a tele-
phone conversation on September 4, 1985 (the day
after the strike ended), Rideaux told the Respondent’s
personnel director, Lillian Rogers, that her doctor had
released her to return to work on the next day. Rogers
told Rideaux that the Respondent believed that she had
participated in the strike, and that she would be treated
as any other striker. Rogers advised Rideaux that she
could not come back to work at that time and that the
Respondent would notify her when it was ready to take
her back. Rideaux confirmed this conversation in a let-
ter to Rogers dated September 5. Rideaux attached a
copy of her doctor’s release to this letter, and reiter-
ated that she was ready to return to work. Neverthe-
less, the Respondent placed Rideaux’s name on the
preferential hiring list the day it received the doctor’s
release in the mail.
The Board has held that an employee who is unable
to work during a strike because of an injury or disabil-
ity cannot be considered a striker because he is unable
to withhold his labor from his employer. Brinkerhoff
Signal Drilling Co., 264 NLRB 348, 349 fn. 5 (1982).
Rideaux was not released for work by her doctor until
after the strike ended, and the Respondent has not
shown that she was able to work before that time.
Thus, Rideaux did not have the status of a striker, and
the Respondent’s treating her as a striker was erro-
neous.21
The record shows that the Respondent’s practice is
that an employee returning from disability status is put
302 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
22 283 NLRB 1173 (1987).
23 If this Order is enforced by a judgment of a United States court of ap-
peals, 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.’’
back in the position he held before his disability, but
if that position is unavailable, he is asked to return to
a similar position. Rogers testified that when Rideaux
was cleared by her doctor to resume work, all nurses
aide positions were filled, and there were no related
positions available. This testimony, however, must be
read in light of Rogers’ belief that Rideaux was a
striker, and Rogers’ immediate placing of Rideaux’s
name on the preferential hiring list for returning strik-
ers. Rogers testified that comparable positions were not
considered for individuals on this list, nor was the pos-
sibility of a different shift offered to those on the list.
Thus, no comparable position was considered for
Rideaux, contrary to the Respondent’s practice before
the strike.
In addition, Rogers admitted that every time prior to
September 1985 when an employee had been released
by a doctor from disability leave, the employee was
placed back in a job promptly after the release. The
record also establishes that before Rideaux’s situation,
there had never been an occasion where there were no
openings for someone coming off of workers’ com-
pensation disability. We conclude that Rideaux was
treated differently than similarly situated employees
had been treated in the past because the Respondent
believed that she participated in the strike. Thus, the
Respondent treated Rideaux disparately and deprived
her of the job to which she was entitled under the Re-
spondent’s policy for reasons related to its perception
that she had engaged in activity protected by Section
7 of the Act. Accordingly, we reverse the judge and
find that the Respondent violated Section 8(a)(3) by
denying Rideaux immediate reinstatement.
REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, we shall order it to cease
and desist and to take certain affirmative action de-
signed to effectuate the policies of the Act. We shall
order the Respondent to offer Logie Rideaux imme-
diate reinstatement to her former job or, if that job no
longer exists, to a substantially equivalent position,
without prejudice to her seniority or any other rights
or privileges previously enjoyed, and to make her
whole for any loss of earnings and other benefits suf-
fered as a result of the discrimination against her, as
prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950), plus interest as computed in New Horizons for
the Retarded.22
ORDER
The National Labor Relations Board orders that the
Respondent, A. W. Schlesinger Geriatric Center, Beau-
mont, Texas, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Treating an employee who is ready to return to
work after a disability leave in a disparate manner
based on the Respondent’s perception that the em-
ployee had engaged in activity protected by Section 7.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer Logie Rideaux immediate and full rein-
statement to her former job or, if that job no longer
exists, to a substantially equivalent position, without
prejudice to her seniority or any other rights or privi-
leges previously enjoyed, and make her whole for any
loss of earnings and other benefits suffered as a result
of the discrimination against her, in the manner set
forth in the remedy section of the decision.
(b) Remove from its files any reference to the un-
lawful treatment of Logie Rideaux and notify the em-
ployee in writing that this has been done and the un-
lawful action will not be used against her in any way.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Order.
(d) Post at its Beaumont, Texas facility copies of the
attached notice marked ‘‘Appendix.’’23 Copies of the
notice, on forms provided by the Regional Director for
Region 16, after being signed by the Respondent’s au-
thorized representative, shall be posted by the Re-
spondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dis-
missed insofar as it alleges violations not specifically
found herein.
303A. W. SCHLESINGER GERIATRIC CENTER
1 All dates are in 1985 unless stated otherwise.
2 The Union also filed charges in Case 23–CA–10129 on 6 August, and in
Cases 23–CA–10165 and 23–CA–10188 on 7 October.
3 The term ‘‘General Counsel,’’ when used herein, will normally refer to the
attorney in the case acting on behalf of the General Counsel of the Board,
through the Regional Director.
4 The pertinent parts of the Act (29 U.S.C. 151 et seq.) are as follows:
Sec. 7. Employees shall have the right to self-organization, to form, or
assist labor organizations, to bargain collectively through representatives
of their own choosing, and to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or protection. . . .
. . . .
Sec. 8. (a) It shall be an unfair labor practice for an employer—(1) to
interfere with, restrain, or coerce employees in the exercise of the rights
guaranteed in Section 7 . . . (3) by discrimination in regard to hire or
tenure of employment or any term or condition of employment to encour-
age or discourage membership in any labor organization . . . (5) to refuse
to bargain collectively with the representative of employees. . . .
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
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT treat an employee who is ready to re-
turn to work after a disability leave in a disparate man-
ner based on our perception that the employee had en-
gaged in activity protected by Section 7.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL offer Logie Rideaux immediate and full
reinstatement to her former job or, if that job no longer
exists, to a substantially equivalent position, without
prejudice to her seniority or any other rights or privi-
leges previously enjoyed, and WE WILL make her
whole for any loss of earnings and other benefits suf-
fered as a result of our discrimination against her, with
interest.
WE WILL notify her that we have removed from our
files any reference to her unlawful treatment and that
it will not be used against her in any way.
A. W. SCHLESINGER GERIATRIC CENTER
Robert G. Levy II, Esq., for the General Counsel.
John J. Durkay, Esq. and James L. Weber, Esq. (Mehaffy,
Weber, Keith & Gonsoulin), of Beaumont, Texas, and
T. J. Wray, Esq. (Fulbright & Jaworski), of Houston,
Texas, for the Respondent Employer.
James E. Youngdahl, Esq. (Youngdahl, Youngdahl &
Wright), of Little Rock, Arkansas, for the Charging Union.
DECISION
STATEMENT OF THE CASE
RUSSELL M. RING JR., Administrative Law Judge. These
consolidated cases were heard by me in Port Arthur, Texas,
on 20 through 23, and 25 through 26 November 1985.1 The
Initial charge was filed on 19 July by Service Employees
International Union, Local 706, AFL–CIO (the Union).2 An
amended consolidated complaint was issued on 28 October
by the Regional Director for Region 23 of the National
Labor Relations Board (the Board) on behalf of the Board’s
General Counsel.3 The complaint alleges that A. W. Schles-
inger Geriatric Center (the Center), violated Section 8 (a)(l)
and (5) of the National Labor Relations Act (the Act), by the
following actions: (1) refusing to furnish the Union requested
information relevant to the performance of the Union’s func-
tion as exclusive bargaining representative of the Center’s
service and maintenance employees; (2) unilaterally abrogat-
ing the grievance-arbitration procedure as set out in the col-
lective-bargaining agreement (the contract) between the Cen-
ter and the Union; (3) through its supervisor and agent, Ma-
tilda Brown, soliciting employees to sign a petition to decer-
tify the Union; (4) refusing the request of union representa-
tive Richard Hall for permission to enter the Center’s facil-
ity, and thereby unilaterally changing a term and condition
of employment established by the recently expired contracts;
(5) refusing to meet at reasonable times for the purpose of
bargaining with the Union since on or about 2 August; and
(6) causing or prolonging a strike by certain employees that
commenced on 1 July by the unfair labor practices alleged
above. The complaint also alleges that the Center violated
Section 8(a)(3) and (1) of the Act in discriminating in regard
to the hire, tenure or terms and conditions of employment by
refusing to reinstate immediately the employees engaged in
the strike and employee Logie Rideaux on their uncondi-
tional offer to return to their former positions.4 The Center,
in its answer, denies that it violated the Act in any manner,
and defends on the following grounds: (1) the Center alleges
that it had no duty to furnish information concerning non-
bargaining unit employees, and even if so, it in effect gave
the requested information to the Union; (2) it did not refuse
to accept or arbitrate grievances, but merely announced the
position that the Center was not obligated to arbitrate griev-
ances arising after the contract expired; (3) the Union neither
objected to the Center’s position nor requested use of the
grievance-arbitration procedure; (4) the Center did not cause
or prolong the strike by any unfair labor practices; (5) and
due to a good-faith doubt that a majority of bargaining unit
employees supported the Union, as of 2 August, the Center
was privileged to refuse to bargain with the Union, to act
unilaterally, to refuse to afford the Union access to its prem-
ises, and to refuse to furnish the Union information. The
Center further contends that its agent, Matilda Brown, did
not solicit employees to sign a decertification petition, and
304 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 The facts found here are based on the record as a whole and on my obser-
vation of the witnesses. The credibility resolutions have been derived from a
review of the entire testimonial record and exhibits with due regard for the
logic of probability, the demeanor of the witnesses, and the teaching of NLRB
v. Walton Mfg. Co., 369 U.S. 404, 408 (1962). As to those testifying in con-
tradiction of the findings herein, their testimony has been discredited either as
having been in conflict with the testimony of credible witnesses or because
it was in and of itself incredible and unworthy of belief. All testimony and
evidence, regardless of whether or not mentioned or alluded to herein, has
been reviewed and weighed in light of the entire record.
6 The Center has approximately 400 beds. Press releases and other publica-
tions regarding the case indicate that it is the largest nursing home in Texas.
Further, its size and nonprofit status make the Center somewhat unique.
7 The Union was represented at these sessions by a bargaining team headed
by the Union’s business representative, Hall. The Center was represented by
a bargaining team headed by attorney John Durkay. Virtually all of the bar-
gaining conversations occurring at these sessions were between Hall and
Durkay. These conversations were taken down in shorthand by an employee
of the Center and were thereafter transcribed. These typed notes were all ad-
mitted into evidence in the case as a joint exhibit. The sessions were con-
ducted on the following dates 24 and 31 May; 5, 6, 18, 19, 20, 24–26, and
29 June; and 10, 17, and 18 July. The strike commenced on 1 July.
8 Approximately 5 days prior to the 14 June strike letter, the Union and the
Center, by agreement, obtained the services of a federal mediator from the
Federal Mediation and Conciliation Service, to participate in the bargaining.
9 A geriatric chair is similar to a wheelchair with a high padded and covered
back.
that the General Counsel’s only witness concerning the alle-
gation was not credible.
On the entire record, including my observations of the de-
meanor of the witnesses, and after due consideration of the
briefs filed herein by the General Counsel, counsel for the
Union and counsel for the Center, I make the following
FINDINGS OF FACT5
I. JURISDICTION
The pleadings, admissions, and evidence in the case estab-
lish the following jurisdictional facts. The Center is now, and
has been at all times material a nonprofit Texas corporation
with its principal office and facility in Beaumont, Texas.6
The center is engaged in providing medical, nursing and per-
sonal care for elderly and disabled persons. During the 12-
month period immediately preceding the issuance of the final
consolidated complaint, the Center, in the course and conduct
of its business operations, derived gross revenues in excess
of $100,000, and purchased and received at its Beaumont,
Texas facility, products, goods and materials valued in ex-
cess of $5000 directly from points located outside the state
of Texas. Thus, I find as alleged and admitted, that the Cen-
ter is now, and has been at all times material, an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
Also as alleged and admitted, I find that the Union is, and
has been at all times, a labor organization within the mean-
ing of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Brief Background
The Center and the Union have been parties to successive
contracts, the last of which by its terms was effective from
17 June 1984, to 30 June 1985. The unit represented by the
Union was composed of the Center’s service and mainte-
nance employees. On 24 May, the parties began a series of
negotiations for a new contract. Fourteen bargaining sessions
were held between 14 May and 18 July without reaching an
agreement on a new contract.
Early in the negotiations, the Center’s bargaining rep-
resentative, attorney John Durkay, made it known the Center
believed that the unit’s wage scale was above the area stand-
ard, and expected the Union to agree to a cut in wages.
While the Center requested these wage concessions and
Durkay indicated during bargaining that some staff and man-
agement employees were going to take a cut in hours,
Durkay also maintained that the Center was not claiming an
inability to pay the current contract wages. The Union’s firm
if not unshakable position was that it would not agree to a
pay cut, and the Union’s representative, Richard Hall, asked
for wage information concerning nonbargaining unit employ-
ees to determine whether these employees’ wages were also
being reduced. The Union struck the Center 1 July. On 2 Au-
gust, the Center withdrew from bargaining and in effect
ceased to recognize the Union, claiming a good-faith doubt
that the Union was supported by a majority of the unit’s em-
ployees. On 3 September the strike ended and the striking
employees offered to return to work. Although the Center
thereafter established a preferential hiring list of the striking
employees and commenced to rehire the striking employees
as vacancies occurred, it continues to refuse to recognize and
negotiate with the Union.
B. Chronology of Significant Events
The following constitutes a chronological list of the sig-
nificant dates and events in the case, most of which are
uncontested.
11 March: The Center’s Executive Director Emma Jo
Smith wrote to Hall, indicating the Center’s desire to modify
the contract and thereby terminating the contract on 30 June.
15 March: Hall wrote to Smith and requested the follow-
ing four items ‘‘in order to prepare for and conduct collec-
tive bargaining’’: a medicaid cost report for 1984, Texas De-
partment of Health Facility inspection reports for the past
year, a utilization report on health insurance program for the
past year, and copies of all job descriptions, work rules and
benefit programs or procedures which had been amended or
updated during the past year.
24 May through 18 July: 14 bargaining sessions were held
or conducted by the Center and the Union.7
14 June: The Union notified the Center by letter, hand de-
livered, that it intended to strike on 1 July.8
24 June: During the bargaining session, Durkay offered to
continue the current contract beyond its termination date and
with the same wages, providing that the parties would con-
tinue to bargain and there was no strike.
24 through 30 June: The backs of geriatric chairs and two
lounge chairs were discovered slashed.9
29 June: During a break in the bargaining session that day,
an unlit Molotov cocktail was found near the main natural
gas intake on the outside of the Center. Later, Durkay sent
a mailgram to Hall indicating that the Center was ‘‘no longer
obligated to arbitrate grievances since the existence of a writ-
ten collective-bargaining agreement is a prerequisite to the
arbitor’s jurisdiction,’’ adding that the Center would agree to
arbitrate all grievances presented to the Center prior to the
expiration of the contract. The mailgram also informed the
Union that effective July 2, 1985, the Center notifies the
305A. W. SCHLESINGER GERIATRIC CENTER
10 This restraining order expired on 15 July, but by a subsequent agreed
order it was extended to 24 July.
11 There were approximately 175 employees in the unit which the Union
represented as of the date of the strike, 1 July. Approximately 130 employees
went out on strike and as of the dates of the hearing of this case (in November
1985), approximately 30 of those striking employees had been rehired based
on the Center’s preferential hiring list. Approximately 44 employees did not
go out on strike initially and some 7 employees returned after going out on
strike. Walker and Thibodeaux were among the employees in the unit who did
not go out on strike.
12 The decertification petition, Case 23–RD–572, was ‘‘administratively dis-
missed’’ pending the outcome of the then existing unfair labor practice charges
against the Center by the Union.
13 I do not make this finding at this time and the petition will be discussed
at length later herein. Durkay had actually learned about the decertification pe-
tition in a telephone conversation with Smith the prior evening. Durkay met
with Smith, Rogers, and Larkins at approximately 7:30 a.m. They also dis-
cussed the attitude of most of the unit employees that were currently working
at the Center regarding whether or not they favored or supported the Union.
14 Notification of the strike termination and offer to return to work was actu-
ally made by letter from the Union dated 1 September. This letter was appar-
ently hand delivered to the Center.
Union that it intends to hire permanent replacements for eco-
nomic strikers without further notice.
30 June: During the evening, patients were administered
excessive amounts of laxatives, resulting in loose stools the
following morning. Also, drugs were mixed and patient med-
icine cards were found missing the following morning. At
midnight, the contract expired.
1 July: Sometime after midnight the strike commenced and
picket lines were established by the Union. The striking em-
ployees were virtually all replaced by new employees by the
end of the first week of the strike.
5 July: The Texas State District Court of Jefferson County
entered a temporary restraining order against the Union en-
joining certain picket line misconduct and limiting the num-
ber of pickets at any given time.10 Throughout the strike,
which lasted some 2 months, there was considerable mis-
conduct and violence on the part of some pickets. This picket
line misconduct and violence will be discussed in some detail
later in this Decision.
18 July: The two bargaining teams met for the last session
where bargaining actually took place. Hall apparently hand
delivered a letter dated 17 July to Durkay requesting certain
and additional information, including information regarding
newly hired replacements, health plan costs, monthly patient
day averages for the previous year, monthly profit-and-loss
statements for the same period, and a statement of current as-
sets and liabilities of the Center. The letter further requested
a summary of wage and benefit decreases or changes for
nonbargaining unit personnel during the period 1 January
through 18 July. Regarding this request, Hall stated in his
letter that it was ‘‘based upon [Durkay’s] contention that a
substantial decrease has been made for nonbargaining em-
ployees.’’ This letter also was the first written request from
the Union regarding information concerning the wages of
nonbargaining unit employees.
19 July: The Union filed its first charge in the case alleg-
ing bad-faith bargaining on the part of the Center on and
after 1 June, and also alleging that on or about 1 July the
Center ‘‘discriminated in terms and conditions of employ-
ment in order to discourage participation in and membership
in and support of the [Union].’’
25 July: Housekeeping aides and unit members Linda
Walker and Margaret Thibodeaux commenced to obtain em-
ployee signatures on a union decertification petition. Walker
had worked for the Center for 2-1/2 years and Thibodeaux
for 16 years.11 Walker testified she was not a union member.
Thibodeaux was not asked about union membership.
1 August: Employees Walker and Thibodeaux traveled to
Houston and filed the decertification petition with Region 23
of the Board.12 Prior to their departure, LVN Supervisor
Larkins found part of the petition unattended and copied
these sheets of signatures. Thibodeaux and Walker informed
Larkins prior to their departure to Houston that they were fil-
ing the petition and Larkins reported this to Executive Direc-
tor Smith. After Thibodeaux and Walker returned from
Houston, at their request they met again with Larkins where-
upon they explained the number of names and signatures
they had collected. Larkins gave this information to Person-
nel Director Lillian Rogers, who reported the information to
Smith.
2 August: A bargaining session had been scheduled for
9:30 a.m. but prior thereto Durkay met with Smith and Rog-
ers, and discussed the decertification petition filed the pre-
vious day. Also called in was Larkins and after discussing
the decertification petition with Larkins, Durkay and Smith
determined by calculation that a majority of the unit employ-
ees had signed the decertification petition.13 At the 9:30 a.m.
meeting of the negotiating teams, Durkay announced to the
Federal mediator and to Hall that because of the pending de-
certification petition, he was suspending negotiations, and
thereafter the session ended. Also Hall again on this date
submitted another extensive written request for information
to the Center, including information regarding nonunit em-
ployees.
5 August: Hall wrote to Durkay with an additional and ex-
tensive information request regarding the Center’s finances,
assets, liabilities, and again requested a summary of wage
and benefit decreases or changes for nonbargaining unit per-
sonnel. Also in this letter Hall, on behalf of the striking em-
ployees, offered their return to work providing bargaining re-
sumed ‘‘in accord with the N.L.R.A. [the Act].’’
6 August: Attorney Durkay wrote to Hall, partially in
reply to Hall’s 5 August letter, explaining that the Center had
a ‘‘good faith doubt’’ regarding the unit employee’s majority
support for the Union, and thus ‘‘active collective bargain-
ing’’ would remain ‘‘suspended.’’
3 September: As of 7 a.m., the strike ended and on behalf
of the striking employees, the Union made an unconditional
offer for their return to work.14 The Center prepared a notice
to the earlier striking employees and hand delivered this no-
tice to those former striking employees. The notice indicated,
among other things, that the Board of Directors had not
made any decision regarding the reemployment of strikers of-
fering to return to work, but that such a decision would be
made shortly. Thereafter, the Center began to rehire certain
striking employees on a ‘‘as vacancy occurred’’ basis.
Additional written information requests were submitted to
the Center by the Union on 6 September and 2 October. The
complaint alleges the failure of the Center to comply with all
the Union’s written information requests to be violations of
Section 8(a)(5) and (1) of the Act.
C. The Cause and Nature of the Strike
A significant issue in this case is whether the strike ini-
tially was an economic or an unfair labor practice strike, and
306 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
15 The record is curiously void of any specifics regarding the picket signs
and their language. No signs or pictures were submitted into evidence and
Hall’s testimony was vague on the subject.
16 This fact was conveyed to the employees by Hall at the strike-vote meet-
ings on 28 June, but there was no discussion about the offer.
if economic initially, whether or not it was converted to an
unfair labor practice strike by poststrike unlawful conduct by
the Center. If the strike was economic only, the striking em-
ployees may be entitled to be returned to work only as va-
cancys occur. If at any point the strike was an unfair labor
practice strike, the striking employees may be entitled to be
returned to their jobs immediately after their unconditional
offer to return, resulting in the immediate discharge of the
replacements. The General Counsel and the Union argue that
the strike, at its inception, was caused by the Center’s re-
fusal, during negotiations, to produce requested wage infor-
mation regarding nonbargaining unit employees, in violation
of Section 8(a)(5) and (1) of the Act. The General Counsel
and the Union argue in the alternative that other poststrike
alleged unfair labor practices by the Center prolonged the
strike, thereby converting the strike from an economic to an
unfair labor practice strike.
Hall either brought up or asked about the wages of nonunit
employees during four negotiating sessions in June. The po-
sition of the Center, as expressed by attorney Durkay, was
firmly that it was not relevant and none of the Union’s busi-
ness, although at the 18 June session Durkay indicated that
no decision had been made regarding the wages of nonunit
employees. At the 19 June session Durkay volunteered that
there had been some cuts in hours among staff and super-
visory employees, and at the 24 June session Hall learned
that the wages of the nurses would not be cut. The Union
held its strike vote at two separate meetings on 28 June and
the subject came up only once, through a question from an
employee in attendance at one of the meetings. It was far
from the major topic of conversation. By far the biggest con-
cern of the Union was the Center’s continuing insistence on
a wage cut to bring the unit’s pay scale within the pay range
of other similar units in the area. Durkay produced wage
comparisons from other area nursing homes in support of the
Center’s position, at least one of which Hall and Durkay had
actually negotiated, but Hall refused to consider them. The
Union’s steadfast position was that it would not and never
accept a wage cut, and in my opinion, it was over this issue
alone that the strike occurred. This fact is well supported by
the record and evidence in the case, including the transcribed
notes of the bargaining sessions, the Union’s correspondence
and published literature both before and after the strike, the
testimony of Durkay and that of Sherril Avery, who was a
member of the Union’s negotiating team and a striking em-
ployee, and whose testimony regarding the subject was di-
rect, firm and unequivocal. A multitude of subjects and
issues were discussed during the bargaining sessions, and
many issues had been settled. It is also noteworthy here that
the Union’s picket signs initially were economic and not un-
fair labor practice signs, and Hall himself testified that it was
not until late July or early August that any changes were
made regarding the signs.15 Thus find and conclude that the
strike in this case commenced as an economic strike.
I also find that the Center’s so-called refusal in June to
furnish wage information regarding nonunit employees was
not unlawful and was not a violation of Section 8(a)(5) and
(1) of the Act. In New York Times Co., 270 NLRB 1267,
1273 (1984), the Board adopted the administrative law
judge’s decision summarizing the law as follows:
An employer has a duty to provide on request infor-
mation relevant to bargainable issues. The law in this
area is clear and well settled. NLRB v. Truitt Mfg. Co.,
351 U.S. 149, 153 (1956); NLRB v. Acme Industrial
Co., 385 U.S. 432, 435–436 (1967). Where the re-
quested information concerns wage rates, job descrip-
tions, and other information relating to employees in
the bargaining unit, the information is presumptively
relevant to bargainable issues. Fawcett Printing Corp.,
210 NLRB 964 (1973); Curtiss-Wright Corp., 145
NLRB 152 (1963), enfd. 347 F.2d 61, 69 (3d Cir.
1965); Timkin Roller Bearing Co., 138 NLRB 15
(1962), enfd. 325 F.2d 746, 750 (6th Cir. 1963), cert.
denied 376 U.S. 971 (1964). Where the request is for
information concerning employees outside the bargain-
ing unit, the union must show the requested information
is relevant to bargainable issues. Brooklyn Union Gas
Co., 220 NLRB 189 (1975); Rockwell-Standard Corp.,
166 NLRB 124 (1967), enfd. 410 F. 2d 953 (6th Cir.
1969); Curtiss-Wright Corp., supra. In determining
whether the information requested by the Union is rel-
evant, the general approach has been to apply a liberal
discovery type standard to the issue of relevancy in
evaluating each case on its facts. Brazos Electric Power
Cooperative, 241 NLRB 10 (1979); Acme Industrial
Co., supra.
In considering whether or not financial information is rel-
evant to a bargainable issue, the Board has held that there
was no duty to produce such information where there is no
claim of an inability to pay wage increases, but rather an un-
willingness to pay such increases. Atlanta Hilton & Tower,
271 NLRB 1600 (1984). The Center’s case regarding the
wage cut rested on area standards, important to the Center
notwithstanding its nonprofit status. However, to the Union,
adamant in its position not to accept a wage cut, area stand-
ards had little or no significance in the matter. Nevertheless,
the Center, on 24 June, offered to continue the expiring con-
tract with its current wages if the Union did not strike and
continued to bargain.16 Although the Center’s financial posi-
tion was somewhat vague, the record in the case does not
support a conclusion that the Center was pleading poverty or
an inability to pay the contractual wage rates, but rather the
record does reflect that the Center’s position was an unwill-
ingness to continue the wage rates. I am mindful of the dan-
gers of accepting, carte blanche, an employer’s mere verbal
statements that its position is not one of an inability to pay,
thereby possibly blocking a union from relevant information.
However, in my opinion the record in this case, and the Cen-
ter’s nonprofit status, does not support even a suspicion that
the Center was attempting to mask what was essentially a
poverty plea. There was a legitimate reason for the Center’s
position regarding the wage cuts, wage information, and fi-
nancial information, and in my opinion these positions were
not taken in bad faith.
The complaint alleges that in the alternative, the strike was
prolonged, and thus converted from an economic strike to an
307A. W. SCHLESINGER GERIATRIC CENTER
17 The contract expired at midnight on Sunday, 30 June, and shortly there-
after the strike began (on 1 July). It was by mailgram dated Saturday, 29 June,
that Durkay informed the Union of the Center’s position regarding the griev-
ance arbitration procedure in the contract. Although the mailgram was dated
29 June, it came on the weekend prior to the Monday strike and is properly
treated in the complaint as a poststrike alleged unfair labor practice.
18 On 2 August the Center suspended bargaining and withdrew its recogni-
tion of the Union as the collective-bargaining representative of its unit of serv-
ice and maintenance employees. Later in this Decision, I find and conclude
that such suspension and withdrawal was legally justified on the part of the
Center.
The Complaint alleges three post-2 August unfair labor practices as also
prolonging the strike. These alleged violations include the Union’s written and
extensive information requests on 2 and 6 August, and the refusal to allow
Union Representative Hall to enter the Center’s facility on 6 August. The later
determination herein that the Center was legally justified in suspending bar-
gaining and withdrawing recognition of the Union, in my opinion, also justi-
fied Hall’s denial of entry on 6 August. Regarding the two information re-
quests, I also find the Center’s refusal to comply therewith justified based both
on my earlier reasoning regarding the wage rate requests during bargaining in
June, and also on the Center’s lack of duty to furnish such information after
its justifiable suspension of bargaining and withdrawal of recognition. For the
latter reason I further find the refusal by the Center to, at least in part, comply
with two additional written information requests on 6 September and 2 Octo-
ber, was also justified.
The complaint further alleges that the Center committed three more and sep-
arate unfair labor practices. First, that the Center wrongfully refused to rein-
state employee Logie Rideaux on 5 September. Commencing in mid-May,
Rideaux was on sick leave. In the meantime she participated in the strike. Al-
though she did not testify in the case, her 5 September letter to the Center
stating her readiness and desire to return to work was admitted into evidence.
I find that the Center properly treated her as a striking employee, and she was
placed on the Center’s preferential hiring list of striking employees. Secondly
the complaint alleges that the Center unlawfully refused to reinstate the strik-
ing employees immediately when the strike ended and they unconditionally of-
fered to return to work. This issue has been partially resolved earlier herein
when I determined that the strike was initially an economic strike. My disposi-
tion hereafter of the remaining poststrike unfair labor practice allegations will
resolve the matter completely in favor of the Center.
Lastly, the complaint alleges that the Center unilaterally and unlawfully re-
duced the wages of the unit employees effective 7 October, without notifica-
tion to or bargaining with the Union. My finding and conclusion later in this
Decision that the Center was legally justified in suspending bargaining and
withdrawing recognition of the Union also disposes of this final allegation fa-
vorably to the Center.
19 The first charge in these consolidated cases (Case 23–CA–10109) was
filed by Hall with the Board on 19 July, alleging violations of Sec. 8(a)(1),
(3), and (5) of the Act.
unfair labor practice strike, by certain unfair labor practices
on the past of the Center after the strike commenced on 1
July, including the following: (1) the failure to comply with
the Union’s written information request presented to Durkay
on 18 July; (2) the abrogation on 29 June of the grievance-
arbitration procedure contained in the expiring contract;17 (3)
the solicitation of employees to sign a petition to decertify
the Union by a supervisor on 10 July; and (4) the refusal of
the Center to further bargain on 2 August.18
The last negotiating session where bargaining actually took
place was 18 July. On that date attorney Durkay received a
somewhat extensive written information request from Hall. It
had been the practice of the parties to tender or exchange in-
formation requested at any given bargaining session at the
next scheduled session. The 18 July request asked for de-
tailed information regarding new hires in the unit on and
after 1 July (the strike date), and detailed financial informa-
tion about the Center, adding that the Union needed the in-
formation to ‘‘evaluate the financial hardship claims of the
facility.’’ This also was the Union’s first written request for
wage information about nonunit employees.19 I have earlier
determined that the Center was not claiming an inability to
pay the contractual wage rates, but did claim an unwilling-
ness to continue such rates for other reasons. I find that the
18 July requested information was not relevant to any then
existing bargainable issues, and thus I find that the Center’s
failure to respond to the request was not violative of the Act.
I note also that after the 18 July session, there were also no
further and actual bargaining sessions prior to the suspension
of bargaining on 2 August.
On 29 June, Durkay sent a mailgram to Hall reciting,
among other things, that the Center was ‘‘no longer obligated
to arbitrate grievances since the existence of a written collec-
tive-bargaining agreement a prerequisite to the arbitrator’s ju-
risdiction,’’ adding that the Center would agree to arbitrate
all grievances presented to the Center prior to expiration of
the contract. The complaint alleges that the mailgram and the
Center’s position regarding the arbitration grievance clause
unlawfully abrogated the clause in the expiring contract in
violation of Section 8(a)(5) and (1) of the Act. The Center
argues that the statement in the mailgram was merely a posi-
tion or opinion statement, and further urges, as Durkay so
testified, that it was the understanding between the parties
that the clause was coterminous with the no-strike clause of
the contract, that is, that each clause was a quid pro quo for
the other.
It is well settled that certain contractual provisions such as
grievance-arbitration clauses survive the expiration of a con-
tract unless the parties expressly or by clear implication ne-
gate such a presumption. Nolde Bros., 430 U.S. 243 (1977);
Lithochrome Corp., 276 NLRB 1190, (1985); American Sink
Top & Cabinet Co., 242 NLRB 408 (1979); Wayne’s Olive
Knoll Farms, 223 NLRB 260 (1976). I find that it was the
intention and understanding of the Union and the Center that
the no-strike clause and the arbitration clause were linked to-
gether, and when one fell the other also fell. See Gateway
Coal Co. v. Mine Workers, 414 U.S. 368, 382 (1974); Goya
Foods, 238 NLRB 1465 (1978). I thus find that the Center
did not violate the Act by abrogating the grievance-arbitra-
tion clause in the expiring contract.
The complaint alleges that on or about 10 July the Center,
by and through Housekeeping Supervisor Matilda Brown, so-
licited employees to sign a petition to decertify the Union,
in violation of Section 8(a)(1) of the Act. The only evidence
in the record of this alleged violation is in the testimony of
former employee Stacy Wolf, who worked for the Center for
a short period in August as a security guard. Wolfe testified
that he quit after about 30 days as a guard, but Chuck Robin-
son, who was in charge of security and safety at the Center,
testified that Wolfe was discharged for dereliction of duty
after 12 days on the job. I discredit Wolfe completely in this
case. In testimony, especially during cross-examination,
Wolfe vacillated and avoided direct answers. He was also
impeached with a criminal conviction and no less than six
other witnesses directly contradicted his testimony regarding
Brown’s actions. I thus find no such violation of Section
8(a)(1) of the Act.
D. The Center’s Suspension of Bargaining and
Withdrawal of Recognition
It is well established that an employer is free to withdraw
recognition from an incumbent union either by showing that
the union has actually lost majority support, or that the em-
ployer has a reasonably grounded doubt, based on objective
considerations, about the union’s continued majority status.
308 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
20 According to the General Counsel, 26 names were omitted from the Cen-
ter’s a list of employees considered to be on strike or leave of absence. Attor-
ney Durkay conceded in testimony that the 310 figure does not include a num-
ber of ‘‘discharged’’ employees. Smith estimated that the number of dis-
charged striking employees not listed to be from 15 to 20. Smith testified that
most of these individuals were ‘‘terminated,’’ a term which she said includes
discharge for picket line misconduct and voluntary resignation. However,
Smith also testified that, at the time of the hearing, the 15 to 20 ‘‘terminated’’
employees had not yet received notice of termination. She stated that employ-
ees would be notified only when all the investigations of what we were going
through were completed. Thus, the Center maintains that 15 to 20, and perhaps
up to 26 employees are no longer in the unit, although the record reveals no
such fact, other than Smith’s testimony.
21 The parties agree that the original unit was approximately 175 in number,
that 44 employees never went on strike, and that approximately 120 ‘‘new
hires’’ were hired during the strike. Using these figures, it follows that with
the approximately 131 employees who went on strike, together with 44 em-
ployees who did not strike, the 7 who later withdrew from the strike and re-
turned to work, and 120 ‘‘new hires,’’ the total number of unit employees was
approximately 302.
22 Larkins testified that Walker showed her the second night-shift petition,
and that Larkins also photocopied the list. It was admitted into evidence.
American Mirror Co., 277 NLRB 1626 (1986); Lithium
Corp., 275 NLRB 1482 (1985); Terrell Machine Co., 173
NLRB 1480, 1481 (1969), enfd. 427 F.2d 1088 (4th Cir.
1970). Such a good-faith doubt may be based on the overall
situation and attitudes of the employees, employee behavior
on the picket line, and spoken communications directly to the
employer. Terrell Machine Co., supra at 1480–1481. See also
Guerdon Industries, 218 NLRB 658 (1975): Bartenders Assn.
of Pocatello, 213 NLRB 651 (1974). Under recent Board law
an employer’s doubt of a union’s continuing status is justi-
fied where approximately 20 percent of nonstriking employ-
ees made statements repudiating or rejecting the union, non-
strikers continued to the cross picket line despite sustained
strike violence, and a substantial number of employees who
crossed the picket line did not in fact support the union.
Stormor, Inc., 268 NLRB 860, 865 (1984). Thus, the pre-
sumption that the employer is obligated to bargain with an
incumbent union may be rebutted by a clear and convincing
showing of either an actual loss of majority status, or of ob-
jective factors sufficient to support a reasonable good-faith
doubt of the union’s continued majority status. NLRB v.
Tahoe Nugget, 227 NLRB 357 (1976), enfd. 584 F.2d 293
(9th Cir. 1978); Terrell Machine Co., supra. However, it is
equally well settled that the filing of a decertification peti-
tion, standing alone, does not provide a reasonable ground to
doubt the majority status of a union. Dresser Industries, 264
NLRB 1088 (1982). A sufficient reason for an employer to
doubt a union’s majority status may be found where a major-
ity of employees in a unit sign a decertification petition, and
thereby would have sanctioned the employer’s withdrawal of
recognition, providing the employer’s action had been taken
in a context free of unfair labor practices. In Guerdon Indus-
tries, supra, the employer’s withdrawal of recognition was
found to be unlawful where ‘‘preceding violations are fla-
grant and egregious’’ and ‘‘of such a character to affect the
Union’s status, cause employee disaffection, or improperly
affect the bargaining relationship itself.’’
In the case at hand, I conclude that the Center had clear
and convincing evidence of an actual loss of majority status
by the Union after learning of the employee’s decertification
petition, with at least 167 signatures out of 302 unit employ-
ees, as discussed below. Furthermore, even assuming that
there had not been sufficient evidence of the Union’s actual
loss of majority status, I find that the Center also had a rea-
sonably grounded good-faith doubt about the Union’s contin-
ued majority status based on the following objective consid-
erations: the Center knew that a majority of employees
signed the decertification petition; approximately 84 employ-
ees made separate oral communications to supervisors
against the Union; and the crossing of picket lines by many
employees notwithstanding the picket line misconduct.
1. The Union’s actual loss of majority status
In the instant case the parties are in dispute over the total
number of employees in the bargaining unit during the strike.
The Center’s executive director, Emma Jo Smith, testified
that the total number of unit employees was estimated on 2
August to be 310 to 312. The General Counsel, on the other
hand, alleges that there were 329 bargaining unit employees,
and accuses the company of manipulating the figures.20 In
any case, assuming argendo that the total number of unit em-
ployees was 329, as General Counsel contends, the record
shows that the Center knew initially that between 167 to 172
unit employees signed the petition, still more than 50 percent
of the 329 figure.21
On 1 August, employees Linda Walker and Margaret
Thibodeaux filed the decertification petition with 142 signa-
tures in Houston with Region 23 of the Board. Earlier that
day Thibodeaux told Supervisor Larkins about the petition,
showing Larkins 6 pages with the 142 signatures. Larkins
photocopied part of the petition while Thidobeaux stepped
out of the room with the other part. Larkins testified that she
copied 4 sheets which were left in the room and which con-
tained 93 signatures, and that Thibodeaux took 2 more sheets
with her when she left the room. After Thibodeaux and
Walker returned from Houston, they met with Larkins at
their request, and again informed her that the first petition
contained 142 names, and that a second petition of night-
shift employees with 25 to 30 signatures had been lost. That
evening Larkins told Personnel Director Lillian Rogers about
the petition and Rogers reported it to Executive Director
Smith, who told attorney Durkay about the decertification pe-
tition. On 2 August, the next morning, Larkins, Rogers,
Smith, and Durkay discussed the petition, and determined by
calculation that the Union no longer had a majority. Smith
estimated the size of the bargaining unit to be 310 to 312
as of 2 August. Larkins had been told about 167 to 172 sig-
natures, actually seen 142 signatures, and copied 93. Based
on the 167 to 172 signatures Larkins had seen or had been
told about, as of 2 August the Center had evidence of actual
loss of majority status by the Union.
Subsequently, on 6 August employee Walker obtained 42
more signatures from a second petition of the night-shift em-
ployees.22 This petition contained 11 duplicates previously
on the first petition of 142 names. Thus, 32 more signatures
were added to the original 142, resulting in 174 signers to
decertify the Union. As of 6 August Larkins had seen or
been told of 174 signatures, and had photocopied 125 signa-
tures, out of 302 total unit employees. In his 6 August
mailgram to the Union, Durkay announced the ‘‘suspension’’
of negotiations based on an alleged good-faith doubt of the
Union’s continued majority status. Durkay did not use the
309A. W. SCHLESINGER GERIATRIC CENTER
23 It was counsel Robert Levy for the General Counsel, in this case, to
whom Walker and Thibodeaux delivered the decertification petition, on 1 Au-
gust. Counsel Levy also advised the two on the matter. Thus, prior to trial
of this matter, counsel for the Center caused to be issued a subpoena duces
tecum on Levy, which he received 15 November. The subpoena called for the
production of the decertification petition case file (23–RD–572) on the first
day of trial (20 November). At the trial, Levy filed a motion to quash the sub-
poena, with authorities, and for technical and legal reasons, I had to grant the
motion. In any event, counsel for the General Counsel himself had an oppor-
tunity to disprove a majority of signatures, if indeed that the was the case,
merely by producing the petition at trial.
phrase ‘‘withdrawal of recognition,’’ but under the cir-
cumstances of this case the suspension of bargaining resulted
in a failure or refusal to recognize the Union, since the Act
requires both parties to bargain in a timely fashion.
The foregoing circumstances persuade me that the Center
had clear and convincing evidence of the actual loss of ma-
jority status by the Union.23
2. Other evidence of the Union’s loss of majority status
The employer does not always bear the burden of proving
that an actual numerical majority opposes the union, but in
the alternative must demonstrate objective reasons for form-
ing a reasonable good-faith doubt of union majority support.
Sofco, Inc., 268 NLRB 159 (1983). Such a good-faith doubt
may be based on the overall situation and attitudes of the
employees, employee behavior on the picket line, and spoken
communications directly to the employer. Terrell Machine,
supra. Furthermore, the Board has held that an employer’s
doubt of a union’s continuing status is justified where ap-
proximately 20 percent of nonstriking employees made state-
ments repudiating or rejecting the union, nonstrikers contin-
ued to the cross picket line despite sustained strike violence,
and a substantial number of employees who crossed the pick-
et line did not in fact support the union. Stormor, Inc., 268
NLRB 860 (1984). See also Sofco, supra (good-faith doubt
based on a plant manager’s testimony that virtually all of the
approximately 27 employees had approached him at one time
or another and brought up the subject of ‘‘do[ing] away with
the Union’’). In the instant case, the record reveals detailed
testimony concerning verbal repudiations of the Union by
employees. Supervisor Larkins testified that ‘‘just about ev-
erybody’’ who signed the first petition had made derogatory
remarks about the Union. Larkins identified such employees
and according to Larkins, employees told her that if the strik-
ers cared about the patients, ‘‘they would have stayed in and
negotiated . . . rather than walk off.’’ Larkins recalled re-
peatedly that individual employees said they ‘‘didn’t want
any parts of the Union’’ if it meant ‘‘walking out on the
geriatric patients,’’ and ‘‘they didn’t need the Union to speak
for them.’’ she testified that the comments were made during
hiring interviews and daily orientation meetings. Matilda
Brown testified that employees often made antiunion com-
ments after being harassed while crossing the picket line.
Brown recalled 25 additional employees who made antiunion
statements. Emma Jo Smith testified that even prior to learn-
ing about the decertification petition, she believed that the
Union lacked majority status based on employee comments.
Smith recalled 3 additional employees who made comments
against the Union. It was stipulated that 3 other supervisors
heard a total of 30 other employees who made similar critical
remarks about the Union. Nursing Supervisor Mary Mason
identified 23 employees, the director of the dietary depart-
ment, Thelma Smith, identified 5 employees, and Nursing
Supervisor Jenore Young recalled 2 additional employees. In
sum, approximately 84 employees were recalled to have
made antiunion remarks. There is no indication that any of
the supervisors threatened employees or promised benefits in
return for antiunion sentiments. See Stormor, Inc., supra at
867.
Under Board law replacements are presumed to support an
incumbent union in the same ratio as the employees they re-
placed. The presumption is rebuttable, but cannot be rebutted
merely by showing that strike replacements crossed the union
picket line. Wilder Construction, 276 NLRB 977 (1985);
I. T. Services, 263 NLRB 1183 (1982); Pennco, Inc., 250
NLRB 716 (1980), enfd. 684 F.2d 340 (6th Cir. 1982). In
Pennco the Board held that ‘‘the occurrence of some vio-
lence on the picket line is, at best, one factor weakening the
presumption of majority status but not alone rebutting it.’’ In
I. T. Services, in finding that an employer had a good-faith
doubt about the union’s majority, the Board relied on several
factors, including the Union’s demand that the replacements
be discharged, the statements by replacements that they did
not want the Union to represent them, and the violence di-
rected against them. In the instant case, strikers told new em-
ployees that they would be replaced, and many of the new
employees made statements to supervisors that they did not
want the Union to represent them. The hostility and threats
directed against the new employees further justified the Cen-
ter’s good-faith doubt that the new employees did not want
the Union’s representation. During the 2 months of the strike,
threats directed by pickets against the new employees was
ubiquitous. Some obscene and violent threats were made by
the strikers, and the Center’s driveway was blocked. Mar-
garet Thibodeaux testified that she was called names such as
‘‘bitch’’ and was told that her ‘‘p—y would be hanging out
to the ground.’’ Supervisor Larkins testified that employee
Augustino Rocio related that her car was painted and em-
ployee Tammy Johnson related that her tires were slashed
and her car egged by the strikers. Security Guard Billy Riggs
testified that ‘‘disputes, arguments and intimidation’’ oc-
curred regularly on the picket line. According to Riggs. Cars
were struck by picket signs, delivery vehicles were stopped
and turned away, ambulances leaving the Center were fol-
lowed, strikers sometimes carried pipes and sticks, and tacks
were thrown on the driveway. Riggs further testified that the
police had to be called regularly, and came by at night on
a routine basis. On the picket line there was such hostility
that some employees were picked up in a van at rendezvous
points away from the Center, and driven passed the picket
line. According to Maintenance Director Chuck Robertson, a
pickup point had to be changed because strikers harassed em-
ployees waiting for the van. Nurses aide Jon Marie Batiste
testified that on 2 July she was waiting at a pickup point
when union representative Hall and a female union member
approached her and using vulgar language told her that she
was betraying her brothers and sisters. Robertson testified
that he heard ‘‘threats to kill’’ on the picket line, that cars
were hit, and that the situation got worse when union leaders
were on the picket line. Robinson also indicated that one
evening three sets of tires were slashed on the Center’s prop-
erty, and that an ambulance sustained a flat tire from tacks
thrown on the driveway. According to Robertson, the drive-
way had to be checked for tacks every half hour. A majority
310 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
24 It is noteworthy that throughout all of the negotiating sessions after the
strike began, picket line misconduct was never discussed.
25 The description of the unit in the complaint contains the word ‘‘tech-
nical’’ prior to the words ‘‘nursing aids.’’ The word ‘‘technical’’ has been re-
moved to conform to existing Board law.
of the unit employees were female, and Robertson further
testified that at the beginning picketers were predominately
female, but were later joined by a ‘‘lot of males at night.’’
Robertson added that employee Charlotte Semien told him
that someone painted her car, threatened to kill her, and also
threatened her baby. Employee Marvin Lewis testified that
rocks and insults were thrown at him when he rode his bicy-
cle to work. Housekeeping Supervisor Brown testified that
employee Ulysses Sam complained his tires were slashed,
and related that he filled a spray bottle with urine to spray
at the strikers because he was ‘‘tired of all that battering.’’
On 5 July the Texas State District Court of Jefferson County
entered a temporary restraining order against the Union en-
joining certain picket line misconduct and limiting the num-
ber of pickets at any given time.
Inside the Center, there was also evidence of misconduct
occurring before the strike. The week before the strike the
Center found that the backs of some 10 geriatric chairs and
2 lounge chairs had been slashed. On 29 June, an unlit Molo-
tov cocktail was found near the main natural gas intake on
the outside of the Center. Supervisor Larkins testified that
during the evening of 30 June, just before the strike, patients
were given excessive amounts of laxatives, resulting in loose
stools the following morning. Larkins also testified that drugs
were mixed and a pharmacist was called in to help sort the
medicines. The drugs that were mixed included Enderol,
Isodil, and Lanoxin, which Larkins indicated could have
caused contraindicated effects. Larkins added that patient’s
medicine cards were also found missing, and arm bands had
been removed from the patients.24
Given the total circumstances of this case, including the
Center’s knowledge of 174 signers of the decertification peti-
tion, the reality of the ‘‘new hires’’ and nonstriking employ-
ees crossing hostile picket lines, flagrant threats, name call-
ing and destruction to property occurring throughout the
strike despite a court injunction, and testimony concerning
the general running down of the Union by employees, I find
that the Center also had a reasonable basis for doubting in
good faith that the ‘‘new hires’’ and nonstriking employees
continued to want union representation. Therefore I find and
conclude that the Center’s suspension of negotiations and
withdrawal of recognition of the Union was justified, and
was not a violation of the Act.
Regarding this sad and unfortunate case, in my opinion the
Union perceived that it would take only a few days out on
strike for the Center to withdraw its bargaining position re-
garding a wage decrease. Such was not the case, and on see-
ing that the Center was able to promptly replace the striking
employees, the Union and the picketeers became increasingly
hostile and the situation soon became virtually out of hand.
On the foregoing findings of fact and initial conclusions
of law, and on the entire record, I make the following
CONCLUSIONS OF LAW
1. The Respondent Employer is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
2. The Charging Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. The following employees of the Respondent constitute
a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 of the Act:
All service and maintenance employees including
nurses aides, medication aides, X-ray aides, medical
records clerks, physical therapists, dietary assistants,
cooks, housekeeping, and laundry employees, excluding
all other employees, technical employees, including oc-
cupational technicians, occupational therapists,
EKG/inhalation/X-ray technicians, occupational thera-
pist aides, licensed vocational nurses, night and week-
end shift maintenance employees who perform security
duties, guards, watchmen, and supervisors are defined
in the Act.25
4. That the Respondent Employer has not violated the Act
as alleged in the amended consolidated complaint issued
herein on 28 October 1985, and has not otherwise violated
the Act.
[Recommended Order omitted from publication.]