244 N.L.R.B. 905 (N.L.R.B. 1979)

Bronxwood Home For Adults

National Labor Relations Board - Board DecisionsSep 7, 1979

244 N.L.R.B. 905 (N.L.R.B. 1979)

BRONXWOOD HOME FOR ADULTS David Scharf and Samuel Offen d/b/a Bronxwood Home for Adults' and Local 1115, Joint Board, Nursing Home and Hospital Employees Division and Local 422, International Production Service and Sales Employees Union, Party to the Contract. Case 2-CA- 14398 September 7, 1979 DECISION AND ORDER By Chairman Fanning and Members Penello and Murphy On January 27, 1977, Administrative Law Judge Thomas A. Ricci issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, the Charging Party and the General Counsel filed limited exceptions and memo- randums in support thereof, and the Party to the Contract filed a memorandum in opposition to the General Counsel's and the Charging Party's excep- tions. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,2 and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein. The Administrative Law Judge found that Respon- dent unlawfully extended exclusive recognition to, and signed a collective-bargaining agreement with, Local 422, International Production Service and Sales Employees Union (herein Local 422), after Local 1115, Joint Board, Nursing Home and Hospital Em- ployees Division (herein Local 1115) had made a de- mand for recognition and proffered signed cards in support of its claim that it represented a majority of the employees. The Administrative Law Judge con- cluded that Respondent thereby violated the require- ment of strict neutrality set forth in Midwest Piping & Supply Co., Inc.3 We agree with the Administrative Law Judge that Respondent violated Section 8(a)(1) and (2) of the Act. However, we do so on the grounds that it ex- ecuted a recognition agreement and contract recog- nizing Local 442 as the representative of its unit em- I Respondent's name appears as amended at the hearing. 2 Respondent has excepted to certain credibility findings made by the Ad- ministrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc.. 91 NLRB 544 (1950). enfd. 188 F.2d 362 (3d Cir. 1951). We have carefull) examined the record and find no basis for reversing his findings. '63 NLRB 1060(1945). ployees at a time when that union did not represent a majority of its unit employees.4 Local 1115 had organized a number of Respon- dent's geriatric homes. The Bronxwood Home for Adults (herein the Home), alone involved in this pro- ceeding, was a new operation, and, in February and March 1976, William Morales, Local 1115's business agent, began organizing the Home's employees. He attempted to keep out of sight while engaged in such activities, but around March 23 he happened to meet up with David Scharf, one of Respondent's owners, and at that time told him Local 1115 was organizing the Bronxwood employees.6 On March 30, Morales saw two men whom he recognized as Serge Diaz and Anthony Molinari, agents of Local 422, enter the Home. He then, along with Nathaniel Hall. another Local Il15 agent, tried to enter the building, but ended up in a confrontation with David Scharf and his brother Leon, Respondent's other principal owner. Morales demanded admittance to the building as the Local 422 agents had entered, stated he had a number of signed cards, offered to permit the Scharfs to inspect them, and demanded recognition. All these demands were summarily rejected by the Scharfs, who finally called in the local police to enforce their demand that Morales leave the premises. Sometime thereafter, Respondent. as indicated, signed both an agreement recognizing Local 422 as the bargaining representative of unit employees and a contract set- ting forth terms and conditions of employment, in- cluding union-security provisions. There is no evidence that Local 422 ever engaged in any organizing activity among Respondent's Bronxwood employees or that it had ever been desig- nated as bargaining representative by any, much less a majority, of those employees.7 Indeed, the only evi- dence of Local 422 activity is its agents' entering the Home with the permission or acquiescence of the Scharfs who, in essence, contemporaneously barred entrance to Local 1115 agents, although they knew the latter had been actively organizing their employ- ees. Obviously, the Scharfs were seeking to choose the union to represent their employees, and their subse- quent execution of agreements recognizing Local 422 as such representative in the absence of any showing or other evidence that that union represented a ma- jority of the unit employees was a clear violation of Section 8(a)(2) and (I1) of the Act. We so find. I Accordingly, we find it unnecessary to rely on Midwesl Piping & Supp!v Co. supra, in reaching this conclusion All dates are 1976. unless otherwise indicated David Scharf conceded he had known Morales well for some 3 or 4 years. No Local 422 authorization cards were introduced into evidence, and no agent of that union testified at the hearing. The Scharfs' testimony relating to the issue---as was all their testimony - was wholl) discredited b the Admin- istrative L.as Judge. 244 NLRB No. 84 905 DI)ECISIONS OF NATIONAL LABOR RELATIONS BOAR) AMENDl)I REMID)Y APPENDIX The General Counsel and the Charging Party con- tend that, in addition to the remedies recommended by the Administrative Law Judge, Respondent should be ordered to reimburse its employees for any dues and initiation fees which may have been improperly withheld from their pay pursuant to the union-secu- rity and dues-checkoff provisions in Respondent's un- lawfully executed contract with Local 422. We agree. Although it is unclear from the record whether Re- spondent has. in fact, enforced the union-security and dues-checkoff provisions of its contract with Local 422, the disgorgement remedy is clearly appropriate if moneys, in fact, were so withheld.' Accordingly, we will order Respondent to reimburse its employees for any dues, initiation fees, and assessments they may have been required to pay to Local 422. Such reim- bursement is to be paid with interest in the manner and amount as prescribed in Florida Steel Corpora- tion, 231 NLRB 651 (1977). 9 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Or- der of the Administrative Law Judge, as modified be- low, and hereby orders that the Respondent, David Scharf and Samuel Offen d/b/a Bronxwood Home for Adults, New York, New York, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Insert the following as paragraphs 2(b) and (c) and reletter the subsequent paragraphs accordingly: "(b) Make our employees whole for any dues, initi- ation fees, and/or other assessments they may have been required to pay to Local 422 pursuant to our contract with that labor organization, together with interest as set forth in the section of the Board's Deci- sion and Order entitled Amended Remedy. "(c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, timecards, personnel records and reports, and all other records necessary to determine the moneys due under the terms of this Order." 2. Substitute the attached notice for that of the Administrative l.aw Judge. Virginia Electric and Power Company v. NL.R.B.. 319 U.S. 533 (1943); see Colony Knitwear Corporation. 217 NLRB 245 (1975). he question of whether Respondent actually withheld dues and initiation ees on behalf of Local 422 from its employees' wages pursuant to the unlawfully executed contract can he ascertained in the compliance stage of the proceeding. 9 See. generally Isis Plumbing & Heating Co(. 138 NLRB 716 (19621. NOTICE To EMPI.YIES POSTED BY ORDER OF IFE NAIIONAL LABOR RELAIIONS BOARI) An Agency of the United States Government WE WIl. NOT assist or contribute support of Local 422, International Production Service and Sales Employees Union, or any other labor or- ganization. WE WlI.LL NOI recognize or contract with that labor organization as the bargaining representa- tive of our employees, unless and until said labor organization shall have demonstrated its exclu- sive majority representative status pursuant to a Board-conducted election among our employees. WE WI.L NOT perform or give effect to our 1976 agreement with that labor organization. or to any renewal, extension, modification, or sup- plement thereof. WE W'LL. NOT, in any like or related manner. interfere with, restrain, or coerce our employees in the exercise of their rights to self-organization. to join or assist Local 1115, Joint Board, Nursing Home and Hospital Employees Division, or any other labor organization, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. WE WILL withdraw and withhold all recogni- tion from that labor organization as the collec- tive-bargaining representative of our employees, unless and until said labor organization shall have demonstrated its exclusive majority repre- sentative status pursuant to a Board-conducted election among our employees. WE Wlll make our employees whole for any dues, initiation fees, and/or other assessments they may have been required to pay to Local 422 pursuant to our contract with that labor organi- zation, together with interest. DAVID SCHARF AND SAMUEL OFFEN D/B/A BRONXWOOD HOME FOR ADULIS DECISION SrATEMENt OF THE CASI THOMAS A. Rl( c(I, Administrative Law Judge: A hearing in this proceeding was held in New York City. New York. on November 22, 1976, on complaint of the General Coun- sel against David Scharf and Samuel Offen d/b/a Bronx- wood Home for Adults. here called the Respondent or the Company. The complaint issued on September 22. 1976. on a charge filed on July 16, 1976. by Local 1115. Joint Board. Nursing Home and Hospital Employees Division. here 906 BRONXW'OOD HOME. FOR A) I.IlS called the Charging Part or ocal 1 115. The issue of' the case is whether, in fact. Respondent. with knowledge that some of its employees were joining Local 1 15 for purposes of bargaining collectively with it. extended recognition to. and signed a contract with, L.ocal 422. International Pro- duction Service and Sales lEmployees Union. here called the Party of the Contract or Local 422. and thereby arrogated to itself the prerogative of deciding which of two unions should be the bargaining agent of its employees in violation of Section 8(a)(2) of the Act. Briefs, were filed by the Gien- eral Counsel and Respondent. Upon the entire record, and from my observation of the witnesses, I make the following: FINI)IN(S OF FA('T I. TIHF BtISINESS ()F RSPONI)i N1 Respondent operates a home for the aged and infirm, providing health, medical, and related services to such per- sons. The only home involved in this proceeding, owned and operated by Respondent and located in New York City. began operations about March 2, 1976. From June I to August 31. 1976, a period representative of Respondent's general annual operations. it derived gross revenues at this location in excess of $30.000, which, projected on an annual basis, is in excess of $100,000. During the same period. Re- spondent purchased food supplies and other goods and ma- terials valued in excess of $1.000 directly from sources out- side the State. which figure. projected on an annual basis. exceeds $4.000. find that Respondent is an employer en- gaged in commerce within the meaning of the Act. II. THE ABOR ORGANIZATIONS INVOI.VII) I find that Local 1115. Joint Board. Nursing Home and Hospital Employees Division. and Local 422. International Production Service and Sales Employees Ulnion. are labor organizations within the meaning of Section 2(5) of the Act. A. The Unfair Labor Practices This is a simple case. The people who own and run the Bronxwood Home for Adults, among them David Scharf and his brother Leon Scharf, also own and operate several other similar businesses. nursing homes or homes for adults. in the City of New York, and at some of them recognize and bargain with Local 1115 with respect to their nonpro- fessional employees The Bronxwood Home is a new one. built during the first months of 1976 and first opened for business on March 2. William Morales, business agent and organizer for Local 1115, went to the new home a number of times during February and March. soliciting authoriza- tion cards in favor of his union from newly hired employees as they came and went about the building. He never en- tered, and made a conscious effort not to be seen by the Scharfs. whom he knew personally. Early in the morning of March 30. he saw two men enter the front door of the home: he knew they were Serge Diaz and Anthony Molina- ri, agents of Local 422. With this, Morales abandoned the thought of not being seen and tried to enter the building with his assistant, Nathaniel Hall. another Local I 1 15 agent who was with him. At the top of the entrance steps, outside the door which is kept locked for security reasons. Morales met both David and Leon Scharf. A conversation between him and the two brothers resulted. At the hearing on this complaint, Mo- rales and both the Scharf's testified. and there is presented a straight question of credibility between him and the two company officers as to what they said to one another.' Ac- cording to Morales, he demanded entrance to the building since the local 422 agents had been permitted inside. told the Scharfs a number of employees had signed Ilocal I 1 5 authorization cards. offered them to the Scharfs tbr inspec- tion, demanded that the cards be checked against Respon- dent's payroll records, and asked for recognition. Morales added his every request was rejected summarilb, and that instead the company agents called the police and had him ordered off the premises. David Scharf, supported, in part. by his brother. testified to the contrary that Morales said nothing about having signed cards. did not claim representatives status or de- mand recognition, but only claimed a right of entry to ex- amine the Company's W-4 lforms for the present comple- ment of employees. They admitted calling the police to get rid of Morales and his friend. David Scharf went on to say that within I-1/2 hours after this in-front-of-the-door confrontation with the Local I 115 agents, he signed a recognition agreement with Local 422. He explained that two Local 422 men-Diaz and Mo- linari had somehow gotten into the lobby of the building before Morales arrived. that these were persons whom he had never before seen, that thev handed him 13 authoriza- tion cards signed by employees already at work, that this was a majority of the then complement. and that he then and there signed a formal recognition agreement. In sup- port. he offered into evidence such a purported document bearing the date March 30. 1974. and showing the name of Local 422. The complaint alleges that: (I) before Respondent signed any document in favor off Local 422 either recognition agreement or regular contract-a substantial number of the employees already had signed authorization cards in favor of Local 1115: (2) the Scharf brothers knew this: (3) the agent of Local 1115 had demanded recognition and had been refused: and (4) therefore. bh presuming itself to de- cide which labor organization was going to be the cllec- tive-bargaining agent for its employees in the face of a real question concerning representation. Respondent violated Section 8(a)(2) of the Act. B. The Facts. Credihilit Whatever questions may have to be decided on this rec- ord. be they questions of credibility or ofr law. one fact is clear beyond doubt: one or the other. Morales on one hand and David Scharf and his brother on the other. lied from The pleadings estahlish that Das id Schar I an and o ner .111 dminlIrator of this home Exactly what Leon's position i. wa. not made clear n he record. but here is nil question on the total re ord that he ,poke on behall ot Respondent that day. and that he Is, to some extent. an o, ner of some of the Scharf homes. iI not this one also 9O7 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the witness stand. The critical factual dispute centers on what conversation took place among the three men on March 30. David Scharf also spoke of what he did outside the presence of the Local 1115 agents. Believable or not, his story about that presents no conflict in testimony, for it is not contradicted, as indeed it could not be. There follows, therefore, the separate testimony of Morales and the two Scharfs. in summary or in quotation, limited to their joint talks that day. I. Morales' testimony Despite Morales' efforts not to be seen in the area of the home, David Scharf did see him one day a week or two before the end of March. Scharf asked what he "was doing around his place," and Morales answered he was trying to organize the employees. On the morning of March 30, Mo- rales saw Diaz and Molinari, the business agents of Local 422, enter the front door and therefore he walked up the steps and tried to enter. Leon Scharf came out the door in response, shook hands, and asked what he wanted. Morales said "I want the same opportunity you are affording the representatives of Local 422." When Scharf came back with "Oh, there isn't anyone in here," Morales said "I just saw those two men go in there from that Union, Local 422." Scharf repeated there was no one there "from any Union." and then asked: "In any case, what is it that you want?" Morales then produced seven authorization cards and said "We represent the majority of the employees, and we want Union recognition." Scharf's response to this was: "we are not going to have a Union in here ... It's a losing proposi- tion . . . Your bosses know my problem . . . I'm losing money here ... I only have a few ... residents and just a few employees." Morales again showed him the cards: "These are the cards of the employees that you have work- ing here ... I would like for you to examine them." Again Scharf answered: "I'm not going to examine them . . . You're not going to come in." It was after this conversation that David Scharf arrived and walked up the steps. Now there were four men outside the door--Morales, Hall, David and Leon Scharf. David asked Morales: "What is it you what?", and the business representative told him, too, "that we represented the em- ployees, and we wanted Union recognition." David also then said; "No . . . We are not going to have a Union in here, and you're not going to get recognition." Morales then said: "Well, I'm not leaving here until I get the oppor- tunity to go in and for you to cross-check these cards with your W-4 forms." Morales offered to show the cards to David, but he also refused to accept them. At this point Leon asked his brother to telephone the police: David went inside and did that, came out again, the police arrived, and without much else of significance said by anyone. Morales and Hall left. 2. David Scharrs testimony When he arrived at 8:30 he saw the two Local 1115 men "standing on top of the stoop . . . sort of tugging at the doors, trying to get in." As he mounted the steps, his brother. Leon. came out the door: "he had apparently heard the noise, somebody was trying to force the door open." David asked Morales: "What are you doing here?", and the business representative said: "I want to go into the building. I'm here to organize your people. I want to see your W-4 Forms, and I want a total list of your employees on the facility." David's response was: "you're standing on my property . .. get off the property. If you want to orga- nize my people, you're going to have to talk to them on the sidewalk." "Q. (By Company Counsel): Up to this point, had Leon Scharf said anything? A. No, sir. He was just walking up the entrance to the building." Again David asked Morales to leave, but "Mr. Morales started to yell and scream. 'I'm not going to leave until I get a chance to get in to the people and speak to the people ... By the way, get the other two guys out of the building.'" David asked "What two men are you talking about?", and Morales told him "'Look inside the building, there are two men from another union.' Then I turned around and I looked inside the building [the door is partially of glass], and sure enough there were two gentlemen standing in the center of the lobby looking out at us ... I turned around to Mr. Morales again and I said, 'What the hell are you talk- ing about, I don't know those people. I don't know who they are.' " Again Morales said: "'I want to come in, and I want to talk to my people also. I want to be able to hand some cards out. I want your W-4 forms.' " David again refused permission to enter and said he would call the po- lice. Now Morales "was shouting, he was yelling, he was in hysterics, a real act . .. 'Call the damn cops, I want to get arrested.' " "At that point ... I turned around, I left Leon standing outside, blocking the door. I had a key to the entrance. I opened the door and I walked in ... I walked over to the switchboard, and I asked by switchboard operator to call the police. After about a minute or two, I came back out." "Q. [By Company Counsel]: Up to that point that you en- tered Bronxwood, to have the switchboard operator call the police ... had Mr. Nathaniel Hall said anything at all? A. No. not at all.... Q. Had Mr. Leon Scharf said anything? A. No. sir." From the transcript: Q. (By Rickles): What happened after you came back outside? A. I came back outside, and when I reached back outside again, there was a shouting conversation, yell- ing, Morales screaming at Leon, "I want to see your W-4s, I want a list of your employees." "I have these cards that your employees signed for me," which he's waving this way, (indicating), just like that. Then he said-first he waves them like this (indicat- ing), and then Leon says to him, "Let me see those signatures," and then at that point, Morales says to him, "Let me see your list of employees and your W- 4s." There was no way for me to tell if there were signa- tures on the cards or if these were authorization cards. They were cards, period. * 908 BRONXWOOD HOME FOR ADULTS JUi)(tiE RI(-(-I: Did you say a while ago that you or your brother said to him, 'Let me see the authorization cards?' TiE WITNESS: That was first time in the conversa- tion. JUDGE RI((C: Would you please answer my ques- tion. Did-after Morales waved the authorization cards, did you or your brother say to him, "I want to look at them?" Tins WITNESS: Yes. JUDGE RI((I: Did he hand them to you or your brother? THE WItNESS: No. JUDGE RI(I: Did he hold them back so that you could not see them? THE Wt1NEss: Yes. * * Q. Did he refuse to show you, verbally refuse to show you the authorization cards? A. He did not say, "No, I will not show you." David Scharf's testimony about his talks with Morales ends with the statement that he then returned inside the building, and the police came to put an end to Morales' visit. A. (Continuing) And there were only three cards and they were not the same cards. Q. You wanted to get that in, Mr. Leon Scharf. and you did. A. I had to, because they are not the same cards. * Q. Did you speak to Mr. Morales at all? A. Not at that time. not until David went into the facility to call the police. Q. I see. So your testimon3 is that from the time that you opened the door and met Mr. Morales. to the time that your brother left to call the police, ou did not say one single word to Mr. Morales or Mr. Hall A. No. Q. (Continuing) ... is that correct? A. Well, the only thing that I said to him was. "Show me the cards." Q. Oh. you said that' A. Yes, I said when he waved them to me, I said, "Show me the cards." Q. So you did say something to him at that time? A. Yes. and that was in a second. "Show me the cards" and he wouldn't. Analysis and Conclusion 3. Leon Scharf's testimony He entered the back door of the building and crossed the lobby. "I seen a commotion, someone banging at the main entrance door." "Q. When you walked from the lobby to the front steps, did you see anyone in the lobby during that time? A. No, I didn't, because I focused my attention to the banging on the door and I went over there to see what it was." After David had entered the lobby to call the police, "I was standing with my back to the doors of the facility, and Mr. Morales wanted to force his way in, which I blocked him. I asked him, 'What do you want?' He said, 'Get those two men out of there.' I said him, 'What two men?' Then he said, 'Look, you'll see,' and I turned around to the glass door and I seen two men standing there, and told him, 'I don't know who they are.' Q. Do you know who they were? A. No, I didn't." Morales never told him he represented the employees at Bronxwood, or demanded recognition on behalf of the em- ployees. He "only want a list of the employees and W-4s." From the transcript: Q. At any time during that day, did they show you any executed authorization cards? A. David gave his testimony. The only thing I can say- Q. Did you- A. (Continuing) is the same thing, he was waving his hands. saying that these are cards. I told him to show it to me, and he put his hand like this (indicating) and wouldn't show it to me. Mr. Rickles: Let the record show that Mr. Scharf is holding his hand behind his back. Considering all of the recorded testimony. I credit Mo- rales against both the Scharfs. The relative demeanor of the witnesses is only one of many reasons for this credibility resolution. The owners were again and again led by their lawyer in direct examination. sometimes by this method brought back to apparent consistency when they strayed in their stories. Much of what appears as their testimony really are statements of fact made by their lawyer. Withall, direct inconsistencies remain in their testimony. Of greater significance is the very high improbability that a number of things they said they did could possibly be true. In parts of his testimony, Leon said his brother did all the talking before going inside to call the police. At other points he said he had himself asked to be shown the union cards before his brother left. Again, at another point, he said that after David had gone inside, he. Leon, asked Morales "What do you what?" This had to be false. for by that time. according to David. all the demanding-whatever it was- had been gone over very fully. David started by saying his brother had just emerged from the door when he. David. arrived and mounted the steps. Later the witness slipped and said "Leon was just walking up the entrance." The essential burden of both their stories was that Mo- rales said nothing about having any signed cards. or about wanting the Scharfs to look at and verify them, or about representative status and recognition. The Scharfs testified after Morales and after seven authorization cards in favor of Local I 15 had been received in evidence. On cross-ex- amination they admitted they did see cards in Morales' hands. Leon said "there were only three cards and they were not the same cards." Morales must therefore at least have given Leon a good look at the cards if the witness could he so sure they were not those signed and alread in 909 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD evidence. From David's testimony: "it looked to me, there were about two or three cards that he had in his hands ... Five by eight, four by six.... Q. Could he have had five or six? A. Yes, he could have. Q. Could he have had seven? A. He could have." Here, one step at a time, David's testi- mony gets closer and closer to that of Morales. With this from the owners virtual admissions they did see cards in Morales' hands we come to the matter of logic and probabilities. The Scharfs would have it that Mo- rales had no intention of showing them that, in fact, some employees already had signed in favor of Local 1I 15. If this were true. Morales was acting completely irrationally at that point. He had seen the agents of a competitor union walk into the place; he had every reason to believe they were there with the full knowledge and approval of the owners the doors here are locked to outsiders!; he had for weeks been working at organizing these employees: and he had seven perfectly good signed authorization cards in his hands. That he would do no more at that critical moment than tell the employer he desired nothing more than to take a look at W-4 forms. defies reason. Nor can I conceive of any purpose Morales could have had in wanting to be ar- rested a desire attributed to him by David Scharf. What coherent explanation can there be for the disparate treatment the Scharfs said they accorded Morales and Hall on one hand and Diaz and Molinari on the other? Re- stated: Except it be for a deliberately concealed and im- proper motive, would they have had an old friend forcefully removed from outside the building while graciously wel- coming total strangers who had gotten inside the building through the security system with nobody knowing, or. so far as appears, even asking how they had done so?' This company has collective-bargaining agreements with Local 1115 at "most" of its other homes. David Scharf said he was known Morales "very well ... for about three or four years," and "I think that we have good working relation- ship with them." If he did not want Morales in his building that day, all he had to do was close the door in his face and leave him standing outside. Instead he called the police. In contrast, he and his brother-as they both testified-turned around to look outside through the door after Morales told them there were two agents of another union inside, saw "two strangers," and thought nothing of leaving them there. According to David, he turned back again to Morales and asked him "What the hell are you talking about?" The question makes no sense, because Morales already had told him who they were. If either of the Scharfs entertained any question at all as to who the strangers were, one of them at least would have gone inside right away to find out. The fact must be that they very well knew. I do not know how or when Diaz and Molinari entered the building, nor, indeed, what David or Leon Scharf did with them that day or later, or at any other time. All I know, and I so find, is that the two Scharfs told a com- pletely fabricated story from the witness stand. I think nothing they said can be credited, not even their uncontra- 2 As late as November 1976. he day of the hearing, David's testimony: Q. Do you have any idea how they gained entrance to the facility' A. I don't know. All I know is that they were there when i came in. dicted story about Local 422, about cards their validity or sufficiency or about any written agreement made with that union. The note of falsity keeps ringing throughout the Schar's testimony. l.eon enters the building from the back door. there are two strangers standing in front of him in the lob- by, the entire home has only 10 or 12 patients so far, the doors are locked for security--and he does not see them! "I didn't look at faces." His brother looks through the door and sees the strangers, he turns to Morales and starts "What the helling" about who they might be. he enters the building lobby to tell the receptionist to make a phone call to the police, he stands there "about a minute or two" (these are his own words), he looks at the strangers-as he must have and says not a word to them! There would be no point in belaboring this credibility issue further. I tind. as Morales testified, that the Scharfs knew that morning that l.ocal 1115 had been organizing the employees, that a number of them had signed authorization cards in its favor, that Morales offered the cards for Re- spondent's inspection, that the Scharfs refused to look at them, and that on behalf of Local I 115. Morales demanded recognition as bargaining agent and was refused. I also find that Morales told David Scharf a week or so earlier. that he was in the process of organizing the employees of this home. It was after this, according to Respondent. that it ex- tended recognition to, and signed a contract with. Local 422 for the same employees, among whom are those who had signed Local 1115 cards. Respondent offered into evi- dence two documents, one on its face a recognition agree- ment and the other a collective-bargaining contract. These bear the names of Respondent and of someone self-styled as an agent of Local 422. The only finding that I make on this record as to this aspect of the case is that after the demand and refusal concerning Local 115. Respondent ex- tended exclusive recognition to local 422 in writing. As to exactly when these documents were made and signed. un- der what circumstances, or on the basis of what representa- tions or discussions, I make no finding at all. The reason for this is because all of the purported evidence on such matters came as oral testimony by the two Scharfs. who stand as completely discredited witnesses. But for this totally unreli- able testimony, the record stands as a void on this question of Local 422 claim to representation. David said he signed up with that union after seeing au- thorization cards-a majority-signed by the then employ- ees. No such cards were produced at the hearing. He said the cards represented a majority of his then employee com- plement. No payroll records were produced. He said the employees-practically all of them --participated in the ne- gotiations on and off, practically all day. Not a single em- ployee was produced as a witness. He said agents of Local 422 signed on its behalf. No officer or other agent of that union either testified or appeared at all at the hearing. For all this record shows, both documents recognition agree- ment and contract-may be completely fraudulent. I find that by recognizing Local 422 as the bargaining agent after the demand made by Local 1115,. Respondent violated Section 8(a)( I) and (2} of the Act. If there is one clear rule of law this statute was from its inception intended 910 BRONXWOOD HOME FOR ADULTS to establish, it is that the employer may not choose the labor organization which is to act as bargaining agent - is a vis him--on behalf of his employees. And, of course, the proscription is never more markedly violated than when he does so after a substantial number of the employees have evidenced a contrary desire and their employer knows it. In the case at bar, some employees already on the job already had signed in favor of Local 1115. Their cards were pro- duced at the hearing and are perfectly credible on their face. If the names appearing were not on Respondent's pay- roll, if the signatures as shown varied from those in the Company's W-4 forms, all Respondent had to do was pro- duce its records to raise the question. It did not. Instead its managers refused to look at them when offered the oppor- tunity at the time of the events. Board law clearly supports the complaint allegation. Midwest Piping and Suppl), Co.. Inc., 63 NLRB 1060 (1945). There is no merit in any of the defense contentions. ocal 1115 did not file a Board petition for an election. In March Morales did not know whether or not his seven cards con- stituted a majority because he did not know the number of the still increasing total complement of workers. The Scharfs refused to give him that information. He therefore continued to solicit signatures. and then he learned Respon- dent had informed the employees there was a contract in effect with another union and that it was checking off dues. Had Morales done no more than file an election request. it would have been dismissed by the Board on the ground of' contract bar. The Board does not accept evidence of unfair labor practices in representation proceedings. Nor is this a case where only a nebulous showing of inter- est is made on behalf of one union while another, with which a contract is made, is affirmatively shown to have. in fact, had a majority of cards at the time of recognition. There is no proof here that any employees of this company ever signed in favor of Local 422. If a mere piece of paper standing completely apart from any probative evidence of authenticity, related collateral support, or rational reliabil- ity-can alone frustrate the statutory rights of employees to select a collective-bargaining agent of their choice, the stated purpose of the entire Act becomes a mockery. IV. THE EFFECT OF THE UNFAIR ABOR PRA(TI(CES UPON (COMMER(CE The activities of Respondent set forth above, occurring in connection with the operations of that company as de- scribed in section I. above, have a close. intimate, and sub- stantial relationship to trade, traffic, and commerce among the several States and tend to lend to labor disputes burden- ing and obstructing the free flow of commerce. V. THE REMEDY Respondent, having been found to have committed cer- tain unfair labor practices, must be ordered to cease and desist therefrom and take certain affirmative action neces- sary to effectuate the policies of the Act. By its unlawful recognition of Local 422, Respondent has interfered with, restrained, and coerced its employees in the exercise of their right freely to select their own representative and it has accorded unlawful assistance and support to that union. To dissipate the affect of that conduct it must be ordered to withdraw recognition from Local 422. and to cease giving effect to its agreements with that union or to any renewal or extension thereof, until such time as that labor organization shall have demonstrated its exclusive majority representa- tive status pursuant to a Board-conducted election among the employees. CONC I SI()NS () .LAW I. By extending exclusive recognition to, and signing a collective-bargaining agreement with. Local 422. Interna- tional Production Service and Sales Employees Union. Re- spondent has assisted that labor organization in violation of' Sections 8(a)( I) and (2) of the Act. 2. The aforesaid unfair labor practices are unfair labor practices within the meaning of' Section 2(6) and (7) of the Act. Upon the foregoing findings of fact. conclusions of law. and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following: ORDER' The Respondent. )avid Scharf and Samuel Offn d/hb/a Bronxwood Home for Adults. New York ('it3 . Nek York. their officers, agents. successors. and assigns. shall: I. Cease and desist from: (a) Assisting or contributing support to I.ocal 422. Inter- national Production Service and Sales Emplosees Union. or any other labor organization. (h) Recognizing and contracting with that labor orgalii- zation as the bargaining representative of its employees, un- less and until said labor organization shall have demon- strated its exclusive maj,'rit representative status pursuant to a Board-conducted election among the employees. (c) Performing or giving effect to its 1976 agreement with that union, or to any renewal, extension, modification, or supplement thereof. (d) In an, like or related manner. interfering with, re- straining. or coercing its employee in the exercise of the right to self-organization, to bargain collectively through representatives of their own choosing. and to engage in other concerted activities for the purpose of collective bar- gaining or other mutual aid or protection. or to refrain from any or all such activities. 2. Take the following affirmative action necessary to ef- fectuate the policies of the Act: (a) Withdraw and withhold all recognition from Local 422. International Production Service and Sales Emploees Union, as the collective-bargaining representative of its em- ployees, unless and until this labor organization shall have demonstrated its exclusive majority representative status In the event no exceptions are filed. as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings. conclusions, and recommended Order herein shall. as pros ded in Sec 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 911 912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pursuant to a Board-conducted election among the employ- provided by the Regional Director for Region 2, after being ees. duly signed by its representatives, shall be posted by Re- (b) Post, at its New York City, New York, place of busi- spondent immediately upon receipt thereof, and be main- ness, Bronxwood Flome for Adults, copies of the attached tained by it for 60 consecutive days thereafter, in conspicu- notice marked "Appendix."' Copies of said notice, on forms ous places. including all places where notices to employees customarily are posted. Reasonable steps shall be taken by it to insure that said notices are not altered, defaced, or 4In the event that this Order is enforced by a Judgment of a United States covered by any other material. Court of Appeals, the words in the notice reading "Posted by Order of the (c) Notify the Regional Director for Region 2. in writing National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National within 20 days from the date of this Order, what steps Re- Labor Relations Board." spondent has taken to comply herewith.