Doctors Hospital

National Labor Relations Board - Board Decisions

Aug 27, 1970

185 N.L.R.B. 147 (N.L.R.B. 1970)

DOCTORS HOSPITAL
Anton Notey, et ano, a Co-Partnership , d/b/a Doc-
tors Hospital , Freeport , New York and Licensed
Practical Nurses of New York, Inc., and Licensed
Practical Nurses' Guild of Local 1115 Nursing
Home-Hospital-Senior Citizens Hotel Union,
Party to the Contract.
Licensed Practical Nurses' Guild of Local 1115
Nursing Home-Hospital -Senior Citizens Hotel
Union and Licensed Practical Nurses of New York,
Inc. and Anton Notey, et ano , a Co-Partnership,
d/b/a Doctors Hospital , Freeport, New York,
Party to the Contract . Cases 29-CA-1647 and
29-CB- 634
August 27, 1970
DECISION AND ORDER
BY MEMBERS FANNING, BROWN AND JENKINS
On January 8, 1970, Trial Examiner Lowell Goer-
lich issued his Decision in the above-entitled proceed-
ing, finding that the Respondents had engaged in
and were engaging in certain unfair labor practices
within the meaning of the National Labor Relations
Act, as amended, and recommending that they cease
and desist therefrom and take certain affirmative
action, as set forth in the attached Trial Examiner's
Decision. Thereafter, the General Counsel and
Respondent Union, respectively, filed exceptions to
the Trial Examiner's Decision and briefs in support
thereof.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are here-
by affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in this proceeding, and hereby adopts
the findings, conclusions,' and recommendations' of
the Trial Examiner, as modified herein.
' In adopting the Trial Examiner's ultimate findings and conclusions,
we do not adopt all of his comments with regard to the interpretation
and application of the principles set forth in the Supreme Court's decision
in NLRB v Gissel Packing Co, Inc, 395 US 375 However, we
agree with the violations found by the Trial Examiner stemming from
Respondent Employer's recognition of Respondent Local 1115 at a time
when a real question concerning representation existed
' Contrary to the Trial Examiner and in agreement with the General
Counsel's exceptions, we believe that the status quo will best be restored
ORDER
147
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
Order of the Trial Examiner as modified below and
hereby orders that Respondents, Anton Notey, Et
Ano, a co-partnership, d/b/a Doctors Hospital, Free-
port, New York, its officers, agents, successors, and
assigns, and Licensed Practical Nurses' Guild of Local
1115 Nursing Home-Hospital-Senior Citizens Hotel
Union, its officers, agents, and representatives, shall
take the action set forth in the Trial Examiner's
Recommended Order, as herein modified.
1. Insert the following as paragraph A, 2,(c) and
renumber the present paragraph A, 2,(c) as A, 2,(d):
"Pay to each of the employees, who revoked their
Local 1115 checkoff authorizations, all moneys with-
held and deposited in an escrow account from the
date of receipt of such revocation."
2. Delete paragraph B, 2,(a) and reletter the remain-
ing paragraphs accordingly.
3. Substitute attached Appendixes A and B for
those attached to the Trial Examiner's Decision.
by requiring the Respondent Employer herein to reimburse the seven
employees (L P N 's Amarante, Daller, Key, Marturano, Pugh, Tudor
and Gibson) from whom dues were deducted and held in escrow subsequent
to their written revocation of dues checkoff authorizations Accordingly,
we will amend the Trial Examiner's Recommended Order as requested
by the General Counsel Additionally, inasmuch as the employees did
enjoy the benefits of the Respondent Employer's contributions to the
welfare trust fund, reimbursement of such contributions to the employees
would amount to unjust enrichment and is deemed, under all the circum-
stances, to be unwarranted The Trial Examiner's Recommended Order
will be amended in this respect
APPENDIX A
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT assist or contribute support
to the Local 1115 or any other labor organization
by recognizing such labor organization as the
exclusive representative of our licensed practical
nurses for the purpose of collective bargaining
at a time when such labor organization has not
been designated by a majority of such employees
as their exclusive representative.
WE WILL NOT assist or contribute support
to Local 1115 or to any other labor organization
by entering into a collective-bargaining agree-
ment with such organization as exclusive repre-
sentative of our licensed practical nurses at a
185 NLRB No. 31
148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
time when there exists a real question concerning APPENDIX B
representation.
WE WILL NOT give effect to our contract
of April 27, 1969, with Local 1115 covering
the licensed practical nurses or to any renewal,
extension, modification, or supplement thereof
unless and until said labor organization has been
duly certified by the National Labor Relations
Board as the exclusive representative of such
employees.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed in Section
7 of the Act.
WE WILL pay to each of the employees of
Doctors Hospital all union dues deducted and
held in an escrow account subsequent to receipt
of their written notification that they desired
to withdraw their Local 1115 checkoff authoriza-
tions
WE WILL withdraw and withhold all recogni-
tion from Respondent Local 1115 as the exclusive
representative of its licensed practical nurses for
the purpose of collective bargaining unless and
until the said labor organization has been duly
certified by the National Labor Relations Board
as the exclusive representative of such employees.
All our employees are free to become or remain,
or refrain from becoming or remaining, members
of the above-named or any other labor organization.
ANTON NOTEY, ET ANO,
A CO-PARTNERSHIP,
D/B/A DOCTORS
HOSPITAL
(Employer)
Dated By
(Representative)
(Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office, 16 Court Street, Fourth Floor, Brooklyn, New
York 11201, Telephone 212-596-3535.
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT accept exclusive recognition
as the representative of the licensed practical
nurses employed by Doctors Hospital or any
other employer for the purposes of collective
bargaining at a time when we have not been
designated as the exclusive representative of such
employees.
WE WILL NOT enter into a collective-
bargaining agreement with Doctors Hospital or
any other employer as the exclusive representative
of any of its employees for the purpose of collec-
tive bargaining at a time when there exists a
real question concerning representation.
WE WILL NOT give effect to our contract of
April 27, 1969, with Doctors Hospital or to any
renewal, extension, modification, or supplement
thereof unless and until we have been duly
certified by the National Labor Relations Board
as the exclusive representative of such employees.
WE WILL NOT in any like or related manner
restrain or coerce employees of Doctors Hospital
in the exercise of their rights guaranteed in
Section 7 of the Act.
LICENSED PRACTICAL
NURSES' GUILD OF
LOCAL 11 15 NURSING
HOME-HOSPITAL-SENIOR
CITIZENS HOTEL UNION
(Labor Organization)
Dated By
(Representative)
(Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office, 16 Court Street, Fourth Floor, Brooklyn, New
York 11201, Telephone 212-596-3535.
DOCTORS HOSPITAL
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
LOWELL GOERLICH, Trial Examiner: In Case 29-CA-
1647 the charge filed on April 28, 1969, was served by
registered mail on Respondent Anton Notey, Et Ano, a
Co-partnership, d/b/a Doctors Hospital, Freeport, New
York, sometimes referred to herein as Doctors Hospital,
and the Respondent, Licensed Practical Nurses' Guild of
Local 1115 Nursing Home-Hospital-Senior Citizens Hotel
Union, sometimes referred to herein as Local 1115, on
the same date. The first amended charge filed on May
19, 1969, was served by registered mail on Respondent
Doctors Hospital and Respondent Local 1115 on the same
date. In Case 29-CB-634 a charge was filed on May
19, 1969, and served on the Respondent Doctors Hospital
and the Respondent Local 1115 on the same date. All
charges were filed by the Licensed Practical Nurses of
New York, Inc., sometimes referred to herein as the Associa-
tion. An Order Consolidating Cases, Complaint and Notice
of Hearing was issued on July 31, 1969 In the complaint
the Respondent Doctors Hospital was charged with viola-
tions of Section 8(a)(1), (2), and (3) of the National Labor
Relations Act, as amended, herein called the Act. The
Respondent Local 1115 was charged with the violation
of Section 8(b)(l)(A) and 8(b)(2) of the Act.
The Respondents filed timely answers denying that they
had engaged in or were engaging in the unfair labor practices
alleged.
The cases' came on for hearing on September 8, 9,
10, 11, and 12, 1969, and October 13, 14, and 15, 1969,2
at Freeport, Long Island, New York Each party was
afforded a full opportunity to be heard, to call, examine,
and cross-examine witnesses, to argue orally on the record,
to submit proposed findings of fact and conclusions, and
to file briefs. All briefs and contentions of the parties
have been carefully considered by the Trial Examiner and
the issues material to this decision have been resolved.
Upon the whole record and upon his observation of
the witnesses the Trial Examiner makes the following:
' Cases 29-CA-1647 and 29-CB-634 had been consolidated with
Cases 29-CA-1692 and 29-CB-646 At the opening of the hearing
the General Counsel moved that the consolidated complaint in Cases
29-CA-1692 and 29-CB-646 be severed from the consolidated complaint
in cases 29-CA-1647 and 29-CB-634 on the ground that a settlement
had been reached in Cases 29-CA-1692 and 29-CB-646 In these cases
Doctors Hospital and the Association were named as Respondents Local
1115 was the Charging Party Local 1115 objected to the granting of
the motion and the Trial Examiner after hearing arguments of counsel
reserved ruling Later in the hearing Local 1115 withdrew its objections,
the motion was granted by agreement of the parties and the settlement
agreement approved
Unless otherwise noted all dates refer to the year 1969
In drawing this decision the Trial Examiner has kept in mind this
language from Philip Carey Manufacturing Company v NL R B, 331
F 2d 720, 735 (C A 6), "Nor may we forget that the interests to be
protected are primarily those of employees "
FINDINGS OF FACT, CONCLUSIONS,
AND REASONS THEREFOR'
149
I. THE BUSINESS OF THE RESPONDENT DOCTORS HOSPITAL
Respondent Doc ors Hospital is a copartnership composed
of Anton Notey and approximately 70 other individuals,
doing business under the trade name and style of Doctors
Hospital, Freeport, New York. At all times material herein,
Respondent Doctors Hospital has maintained its principal
office and place of business at 320 Merrick Road in the
town of Freeport, county of Nassau, and State of New
York, where it is, and has been at all times material
herein, continuously engaged in providing medical services
and related services. During the past year, which period
is representative of its annual operations generally, Respond-
ent Doctors Hospital, in the course and conduct of its
business, derived in excess of $1 million gross revenue
therefrom and purchased and caused to be transported
and delivered to its hospital pharmaceutical products, and
other goods and materials valued in excess of $50,000,
of which goods and materials valued in excess of $50,000
were transported and delivered to its hospital in interstate
commerce directly from States of the United States other
than the State in which it is located.
Respondent Doctors Hospital is, and has been at all
times material herein, an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Licensed Practical Nurses' Guild of Local 1115 Nursing
Home-Hospital-Senior Citizens Hotel Union and Licensed
Practical Nurses of New York, Inc., are and have been
at all times material herein labor organizations within the
meaning of Section 2(5) of the Act.
III THE UNFAIR LABOR PRACTICES
First At all times material herein Anton Notey was
a partner and the executive director of Doctors Hospital
as well as partner and director of Central General Hospital,
Smithtown General Hospital, and the South Shore Nursing
Home; James J. Ryan, Lohta L. Minnick, and Virginia
Hatfield were respectively the administrator, director of
nursing services, and assistant director of nurses of Doctors
Hospital. Alex DeLaurentis was the president and chief
negotiator of Local 1115
A current collective-bargaining agreement, effective Octo-
ber 11, 1968, was and is in effect between Doctors Hospital
and Local 1115 covering blue collar hospital workers.
Licensed practical nurses (sometimes referred to herein
as L P.N.'s) were not covered by the agreement.` Similar
contracts with Local 1115 cover blue collar workers at
Central General Hospital, Smithtown General Hospital,
and South Shore Nursing Home. In addition to blue collar
' The unit described in the contract was "all of its employees excluding
registered nurses, licensed practical nurses, and supervisors "
150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
workers, the South Shore Nursing Home contract includes
licensed practical nurses and registered nurses.
Second: On the morning of April 21, at or about 10:30
or 11, DeLaurentis, accompanied by several L P.N.'s, includ-
ing Marguerite Grogan, appeared at Dr. Notey's office
in Doctors Hospital and presented him with 24 Local
1115 designation cards purportedly signed by L.P.N.'s in
the employment of Doctors Hospital. Claiming a majority
in a unit of 41 L.P.N 's,5 DeLaurentis demanded that
Dr. Notey sign the recognition agreement set forth in
the margin which was later executed on April 26.6 Among
other things, the agreement required that the Employer
concede and agree that Local 1115 had been "designated
Forty-one was DeLaurentis ' representation
` The agreement read as follows
AGREEMENT entered into this day of 19. effective as of 19, by
and between the Licensed Practical Nurses ' Guild of Local 1115
Nursing Home -Hospital-Senior Citizens Hotel Union, an unincorpo-
rated independent association , hereinafter referred to as the "UNION"
having its principal office in the state of New York, and DOCTORS
HOSPITAL, FREEPORT, NY, hereinafter referred to as the
"EMPLOYER" located at 320 W Merrick Rd, FREEPORT in
the State of New YORK
W ITN ESS ETH
WHEREAS, the Union has requested the Employer to bargain
with it for the purpose of consummating a Collective Bargaining
Agreement covering employees of the Employer who come within
the jurisdiction of the Union, and
WHEREAS, the Employer has requested proof of such representa-
tion, and the Union has presented evidence thereof
NOW, THEREFORE, it is agreed as follows
1 The Employer and the Union mutually agree that the following
classifications of employees of the employer constitute a unit
appropriate for the purposes of collective bargaining with respect
to rates of pay, wages, hours and other conditions of employment
Included LICENSED PRACTICAL NURSES
Excluded RN's
2 The Employer hereby concedes and agrees that the Union
has been designated or selected for the purpose of collective bargaining
by the majority of the employees in the unit appropriate for such
purposes as set forth in Paragraph "I" hereof, and by reason thereof
is the exclusive representative of all of the employees within the
said appropriate unit
3 The Employer hereby further agrees that it recognizes and
will bargain collectively with the Union as the exclusive representative
for the purpose of collective bargaining of all of its employees within
the said appropriate unit
4 The Employer agrees that it will negotiate, conclude and execute
a Collective Bargaining Agreement with the Union pursuant to the
negotiations hereunder on or before the day of 19.
5 In the event any of the issues arising out of said collective
bargaining negotiations are in dispute, said issues shall be submitted
to arbitration before Mr Morton Singer, of 13 Third Street, Rye,
New York who shall be hereinafter known as the arbitrator, and
whose decision shall be final and binding on both the Union and
the Employer The parties shall thereupon promptly embody terms
so awarded as well as the terms agreed upon in a written agreement
in the case of Mr Singer's death or resignation , George Moskowitz,
347 Madison Ave, New York City shall be the arbitrator
#
Licensed Practical Nursts ' Guild if LOCAL 1115 Nursing
Home-Hospital - Senior Citizens Hotel Union
Name Authorized Signature
Authorized Signature
or selected for the purpose of collective bargaining by
the majonty of the employees in the unit appropriate for
such purposes." Dr Notey, taken by surprise, inquired
of Hatfield, whom he summoned, whether she had known
that such organization activity was occurring; she denied
any knowledge.' The cards were then turned over to Hatfield
for verification. Hatfield, together with Local 1115 represent-
atives, compared the signers' signatures with signatures
on their withholding forms obtained from the Employer's
files. Since the signatures of some of the card signers
were not available , these signers were contacted by telephone
and asked if their signatures appeared on the card. All
answered in the affirmative Hatfield reported to Dr. Notey
that all the signers' signatures were verified. Later in the
afternoon or the next morning , after the Local 1115 repre-
sentatives had departed, Dr. Notey asked Hatfield to count
the number of L.P.N.'s on the staff. She reported at least
43.
When Hatfield reported to Dr. Notey that the signers'
signatures were verified DeLaurentis again demanded that
Dr Notey sign the recognition agreement.' Dr. Notey ref-
used and according to Grogan (whom the Trial Examiner
credits on this subject), Dr. Notey said that "he would
not do it unless and until he had spoken to his attorney."'
The confrontation deteriorated into "a lot of shouting"
and "a great deal of dissension " At the time Dr. Notey
showed no immediate inclination to voluntarily recognize
Local 1115. He insisted on putting off recognition until
"tomorrow." Indeed the credible record reveals no meeting
of the minds on the subject of recognition on April 21. iS
In the meantime L.P.N., Virginia Alex, am employee
who had not signed a Local 1115 designation card, learned
of Local 1115's organizational efforts. She conferred with
another L.P.N, Elizabeth Hultz, after which, at or about
11 a.m , she telephoned the Association and talked with
Pearl Rasin, the Association's field representative and eco-
nomic security chairman for the State of New York. Alex
Later Dr Notey learned that there had been "many meetings"
and that "Mrs Bishop, the supervisor, helped them to get the meetings
going "
DeLaurentis testified that he said to Dr Notey, "Here, sign the
recognition stipulation and we will start negotiating "
The Trial Examiner considers both Dr Notey and DeLaurentis,
whose testimony was of a capricious nature, to be unreliable witnesses
10 If the evidence is construed most favorably in support of a finding
that Local 1115 was recognized as the exlcusive bargaining representative
of the L P N's by Dr Notey on April 21, it, nevertheless, does not
appear that the Employer, within the meaning of the Act, had actually
recognized Local 1115 as the exclusive bargaining representative of the
L P N 's on that date The uncertainty of such a finding is implicit
in the following testimony
Ryan testified that sometime before the signatures were checked he
suggested an election to which DeLaurentis responded "[w]hy should
he go to an election and take a chance on losing it when he already
had 51%" In response to DeLaurentis' claim of majority, according
to Ryan, Dr Notey said, "Well, let me look into it and we will meet
tomorrow" and, when DeLaurentis asked Dr Notey to sign the recognition
agreement, Dr Notey responded that "he wanted to be sure that the
majority of LPN's wanted the union and at that time he wouldn't sign
it until he spoke to his lawyer "
Hatfield testified that after she returned from checking the cards Dr
Notey said, "Don't push me I'll sign it I'll sign it "
According to DeLaurentis, Dr Notey said, "I'll see you tomorrow,
I'll sign tomorrow You got it "
DOCTORS HOSPITAL
informed Rasin that Local 1115 was "wanting to represent
the licensed practical nurses at Doctors Hospital" and
inquired whether there was anything the Association could
do so that the L.P.N.'s could be represented by the Associa-
tion. Rasin explained that the Association must have desig-
nations from a majority of the L.P N 's before the Associa-
tion could represent them Rasin commented that, she
believed that the Association had members at Doctors
Hospital" and suggested that Alex contact them for help.
Rasin sent Alex some union information and material.
Third: On April 22, DeLaurentis again appeared at Doc-
tors Hospital and informed Dr. Notey that he "wanted
recognition." Dr. Notey answered, "I don't think I'm going
to sign it now. . . . I want to meet in Julius' office."12
Arrangements were made to meet in Lawyer Gerzof's office
the following day. Notey mentioned that his present informa-
tion was that there were 47 employees in the unit" and
that a majority of 1 was not enough. Notey insisted upon
an election. He observed that "he was not going to sign
anything like he did other times without his lawyer looking
at it first."
On the same day L.P.N. Hultz telephoned Rasin about
Association representation for L.P.N.'s. During the evening
Alex informed Supervisor Pagones that she was annoyed
with what was going on and observed that she had a
free choice as to what organization she desired to join.
She said she did not want to be pushed into something.
She asked permission to telephone Mr. Ryan and Dr.
Notey; she was unable to reach either one.
Fourth: On the morning of April 23, six L.P.N.'s, includ-
ing Alex and Hultz, formed a committee and sought audi-
ence with Dr. Notey. At first Dr. Notey refused an audience
but after having been reminded that he had told employees
in a general meeting that if they had any problems they
could come to him, he agreed. The meeting occurred shortly
after noon in Ryan's office. L.P N.'s Alex, Hultz, DeSantis,
Short, Walters, and Butler and Supervisors Ryan and Hat-
field were present. Dr. Notey was informed that the L.P.N.'s
DeLaurentis further testified that Dr Notey said, after the cards were
checked, "No, I am not going to sign it I know what is in there
I signed once before If we don't get together it goes to arbitration
I don't want to be put in that position I don't want to sign it now
You have got it You are in I will see you tomorrow You take my
word, my word is good I have dealt with you before I recognize
you, but I am not going to sign today I will see you tomorrow
You got it, you are in What are you worrying about')"
Dr Notey testified that he told DeLaurentis, "You know, Al, we
never had much trouble I will recognize them tomorrow I am
not in a hurry, this is not a volcanic eruption that has to be done
today and I might want to talk to my lawyer " Further testifying,
Dr Notey was asked, "What did you say to him upon which you
base your conclusion that you recognized the union)" Dr Notey answered,
"I told them the first time 'What's your hurry, what's your rush? We
have had this situation many times and I didn't always sign the first
hour, the first day Let me just sleep on it and let me see tomorrow
You know we won't have any trouble' My conclusion was based
on the signatures and on the majority I said, 'I will recognize
you, it doesn't have to be today, tomorrow "
" L P N Mary Pugh had been a dues paying Association member
for a number of years
" The office of Julius Gerzof, Notey's lawyer
" When DeLaurentis made his first demand for recognition he claimed
that there were 41 L P N 's in the unit
151
had contacted the Association and that a majority of the
girls wanted the Association and did not want Local 1115
to represent them . Dr. Notey was told that if the L.P.N's
were forced into Local 1115 the the Association partisans
would resign and that a "lot" of the L.P.N.'s had signed
Local 1115 designation cards because they were told that
the administration was behind it. Notey was asked whether
the L . P.N.'s could hold an open meeting at which all
the L . P.N.'s might attend so that they could find out
which Union they wanted Dr. Notey agreed . The meeting
was scheduled for Monday , Arpil 28, in the hospital's
board room . 14 Notey was asked not to sign a contract
with Local 1115. Dr. Notey told the committee that "he
had no preference whether it was Local 1115 or the Associa-
tion . He said it was the employees' decision to make.15
Later in the day DeLaurentis , Dr. Notey, and Gerzof
met in Gerzof s office , DeLaurentis tried again to obtain
recognition for Local 1115 , recognition was refused and
an election demanded . To this demand DeLaurentis respond-
ed "Never."
DeLaurentis left Gerzof s office and proceeded to Doctors
Hospital where he called a meeting of the blue collar
workers covered by the current agreement . The L.P.N.'s
did not attend the meeting . DeLaurentis reported the status
of the L . P.N.'s demand for recognition to the blue collar
workers and informed them that "if they wanted to back
up the workers" this could be accomplished "by sitting
in if necessary."
Fifth: On April 24 , the blue collar workers commenced
a "sit-in" in the conference room of the hospital . L.P.N.'s
did not join the "sit-in." Local 1115 also engaged in a
"sit-in" at South Shore Nursing Home, Central General
Hospital , and Smithtown General Hospital.
L.P.N DeSantis contacted Rasin by telephone and
inquired whether there was "any possibility of [her] coming
down the next day." DeSantis explained "that the licensed
practical nurses at Doctors Hospital [were] doing above
their duties of the L . P.N.'s because of the work stoppage
and the other workers who were stopping were not doing
their work and they had to do their work plus the other."
Sixth: On April 25, DeSantis again telephoned Rasin
and urged her to come to Doctors Hospital immediately
Rasin agreed to visit the hospital around 11:30 to 12
o'clock.
" A notice was posted in the hospital as follows.
Attention All LPN's-All shifts
Let's be represented by our own organization-"The L P N Assoc "
Be Sure to make this important meeting Your Professionalism
is at stake
Monday
April 28th, 1969
loam and7pm
" Ryan testified
When the meeting started the girls said they wanted to speak
to Dr Notey Their first question was,"How could you do this
to us9" He said, "Well, they claim they have 51%"
So, the girls said, "This isn't true " He said, "What can we dog"
He said, "I am sorry, you will have to fight with your association
I can not enter into it I have nothing to do with it It is out
of my hands "
152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Prior to arrival at Doctors Hospital, Rasin and Associa-
tion Attorney Robert Silagi contacted Dr Notey at the
Central Island Nursing Home. At the time Dr Notey
and his lawyer, Gerzof, were engaged in the preparation
of injunction proceedings involving the "sit-in." Rasm
informed Dr. Notey that she had been receiving calls from
L.P.N.'s at Doctors Hospital at least two or three times
a day concerning the Union situation and that she wanted
permission around lunchtime to visit Doctors Hospital in
order to learn what the L.P.N.'s problems really were.
Notey replied that "he had to do something to stop the
work stoppage because the patients care was being concerned
and that he was preparing an injunction with his attorney
at this time " Upon inquiry Dr. Notey told Rasin a total
of 47 L.P.N.'s were employed by Doctors Hospital. Dr.
Notey told Rasin that she could talk to the employees 16
He further informed her that DeLaurentis wanted to repre-
sent the L P.N.'s but he had refused him recognition.
Among other things Dr. Notey, who was in the process
of initiating injunctive proceedings against Local 1115's
"sit-in," said, "I want to throw those bums out." Dr.
Notey admitted that he knew Rasin and Silagi were going
to Doctors Hospital," and that he did not deny permission.
According to Dr. Notey, Rasin informed him that the
Association had members in the hospital among the L PPN's
and that she wanted to secure designations from them.
She added that the Association wanted a contract
Silagi and Rasin left Central Island Nursing Home and
proceeded to Doctors Hospital where they arrived about
12:10 p.m. Upon arrival they were met by Alex and Hultz
in the lobby and shortly after were joined by DeSantis.
At first this group planned to approach the L.P.N.'s and
solicit their signatures to cards, but this proved to be
difficult because they did not recognize many of the L.P.N.'s.
Considering solicitation in this manner to be an impossibility,
Alex asked the switchboard operator to announce that
all L.P.N.'s should meet in room 102-A, a vacant, patient's
room. The announcement was given over the public address
system even though Alex did not obtain permission from
the hospital authorities to make the announcement. In
response to the announcement the L.P.N.'s commenced
arriving at the room. Shortly thereafter Ryan appeared
and informed the participants that they could not hold
a meeting, "that the Union had complained." Silagi respond-
ed that Dr. Notey had given permission and they would
not be in there long Ryan departed. The meeting lasted
about one-half hour; a substantial number of cards were
signed 1e
Between 1:30 and 2 p in. Rasin and Silagi appeared
at Gerzof's office with the Association designation cards
" Rasin testified "From the course of the conversation it seems
like Dr Notey wouldn't give me a definite no He did tell me
that I could talk to them So the rest I did on my own "
" Dr Notey testified that he gave Rasm and Sdagi access to Doctors
Hopitals because he had learned that Local 1115 had used the hospital
for organizational activities and he desired to give the Association the
same right There is no credible proof that Dr Notey knew that the
Association intended to solicit card signers from other than employees
who were already Association members or hold a meeting for such
purpose at the hospital premises
claiming that the Association represented a majority of
the employees. They asked for recognition; the Association
was not recognized. The Association also addressed a tele-
gram to Dr. Notey which set forth that the Association
demanded "recognition as collect[ive] bargaining agent on
behalf of all licensed practical nurses." The telegram was
stamped "Apr 25 PM 12 53."
Seventh: At approximately 2 p.m. on April 26, DeLauren-
tis was served with four Orders to Show Cause directing
Local 1115 and its officers to cease and desist from any
interference with the operation of the hospitals, including
no "sit-down," no work stoppage, and no strike." DeLauren-
tis' response to the Order to Cause was "Mr. Gerzof,
tell these papers to do this work because the employees
will never go back to work until you first sign a contract
for the LPN's."
On April 26, a recognition agreement retroactive to April
21 was executed with Local 1115. During discussions in
regard thereto, DeLaurentis was advised that the Association
had made claims that it represented a majority of the
employees.
Eighth: On April 27 Local 1115 continued to ignore
the court's injunction and persisted in its "sit-in." Around
5 p.m., the Employer capitulated and signed the agreement
proffered by DeLaurentis DeLaurentis advised the employ-
ees that the contract had been achieved and ordered the
employees who were "sitting in" to return to work
The Employer's capitulation stemmed from emergency
conditions which were existing in the hospitals and nursing
home as a result of DeLaurentis' insistence on the "sit-
ins" even in the face of the injunction. A continuation
of the "sit-ins" would have imperiled the lives of patients
for whom accommodations were not available elsewhere.
Dr. Notey was confronted with either capitulation or a
continuation of certain risk to the lives of patients in
the three hospitals and the nursing home in which he
held interest.
The agreement provided for recognition of Local 1115
for a unit of "licensed practical nurses excluding supervisory
employees." The agreement was made retroactive to April
21. The agreement included a union-security clause as fol-
lows:
It shall be a condition of employment that all employ-
ees of the Employer covered by this agreement who
are members of the Union in good standing on the
execution or effective date of this agreement, whichever
is later, shall remain members in good standing and
those who are not members on the execution or effective
date of this agreement, whichever is later, shall on
the thirtieth (30) day following the execution of effective
date of this agreement, whichever is later, become
and remain members in good standing in the Union.
It shall also be a condition of employment that all
" Among those signing Association cards at this meeting were Alex,
Walters, Butler, Hultz, DeSantis, and Short, all of whom were the original
Association supporters L P N Mary Pugh, a dues paying member of
the Association for a number of years, also signed a card at this meeting .
" DeLaurentis testified, "I told the employer that the workers were
taking action until he negotiated a contract with us "
DOCTORS HOSPITAL
employees covered by this agreement and hired on
or after its execution or effective date, whichever is
later, shall on the thirtieth (30) day following the
beginning of such employment become and remain
members in good standing in the Union.
and a checkoff clause.
The Employer agrees to deduct no later than the
10th day of each month from the wages of employees
their membership dues, assessments and initiation fees
and agrees at the same time to remit immediately
to the Union all such deductions, provided that the
Employer has received from each employee on whose
account such deductions are made, a written assignment
which shall not be irrevocable for a period of more
than one (1) year , or beyond the termination date
of this agreement , whichever occurs sooner The
Employer shall furnish the Union monthly with a
record for those for whom deductions have been made
and the amounts thereof. All funds so deducted by
the Employer shall be held as trust funds and shall
not be co-mingled with other funds of the Employer.
Dues were checked off pursuant to the clause.
The agreement further provided that the employer "shall
pay to Local 1115 Welfare Trust Fund . . . the sum
of Twenty-Four dollars ($24) per month for each employee
covered by this Agreement."
Ninth: On April 28 the Association filed a representation
petition in Case 29-RC-1235 and the charge in Case 29-
CA-1647.
Tenth: The threshold question is whether, upon the pres-
entation of signed authorization cards by Local 1115 on
April 21, 1969, and the purported verification thereof by
signature comparison as to some and telephone acknowledg-
ment as to others , the Employer became obligated to recog-
nize the bargain with Local 1115, in conformity with the
requirements of Section 8(a)(5) of the Act. Section 8(a)
requires "It shall be an unfair labor practice for an employer
.. (5) to refuse to bargain collectively with the representa-
tives of his employees , subject to the provisions of section
9(a) "2°
The Board 's current practice , which in effect2i was
approved in N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S.
575, provides that "[w]hen confronted by a recognition
demand based on possession of cards allegedly signed by
a majority of his employees , an employer need not grant
recognition immediately , but may, unless he has knowledge
independently of the cards that the union has a majority,
decline a union 's request and insist on an election , either
by requesting the union to file an election petition or
by filing such an election petition himself under § 9(c)(1)(B),"
except that , if the employer "commits independent and
substantial unfair labor practices disruptive of election condi-
tions, the Board may withhold the election . and issue
" ° Sec 9(a) of the Act provides " Representatives designated or selected
for the purposes of collective bargaining by the majority of the employees
in a unit appropriate for such purposes , shall be the exclusive representa-
tives of all the employees in such unit for the purposes of collective
bargaining in respect to rates of pay, wages , hours of employment, or
other conditions of employment "
" See NLRB v American Cable Systems, Inc, 414 F 2d 661, 668
(CA 5)
153
instead a bargaining order as a remedy for the various
violations."
There is no credible evidence in the instant case which
supports a finding that the Employer had knowledge inde-
pendently of the cards presented by the Union that the
Union represented a majority of its L P.N.'s", or that
the Employer prior to its knowledge of the L P.N.'s interests
in the Association committed independent and substantial
unfair labor practices disruptive of election conditions. Nei-
ther does the credible evidence establish that the Employer
actually voluntarily or otherwise recognized Local 1115
as the exclusive representative of the L.P.N.'s until it execut-
ed the written recognition agreement on April 26, which
was compelled by the "sit in." Indeed , if the claim for
oral recognition is viewed most favorably for Local 1115,
on August 21, recognition was put off until "tomorrow."
Nevertheless , even though the Employer had confirmed
and acknowledged the Union 's card majority on August
21 and had accorded voluntary recognition to Local 1115,
as long as bargaining had not actually commenced and
the Employer possessed no knowledge of Local 1115's
alleged majority independently of the card showing, or
the Employer had committed no independent and substantial
unfair labor practices disruptive of election conditions, it
could have insisted on an election without committing
an unfair labor practice . See Gissel case, supra. Arthur
F. Derse, Sr., President, and Wilder Mfg. Co., Inc., 173
NLRB No. 30 . In the latter case the proof was that
not only did the respondent company know "that the
Union represented an uncoerced majority of its employees
in a unit appropriate for the purposes of collective bargaining
by reason of [the employer 's] examination of the union
authorization cards" but the employer "observed and knew
that a majority of its employees in such unit had ceased
work and were on a peaceful picket line patrolling the
Company's premises ." The Board reversing the Trial Exam-
iner held-
The Board has made clear that to establish that
an employer 's failure or refusal to grant recognition
to a union on the basis of a card showing violates
Section 8(a)(5), the General Counsel has the burden
of proving not only that a majority of employees
in the appropriate unit designated the Union as their
bargaining representative , but also that the Employer
in bad faith declined to recognize and bargain with
the Union . This is usually based on evidence indicating
that the Employer has completely rejected the collec-
tive-bargaining principle or seeks to gain time within
which to unlawfully undermine the Union and dissipate
its majority.
In the present case, however , there is no showing
whatsoever that Respondent had rejected the collective-
bargaining principle or engaged in any interference,
restraint , or coercion of employees to undermine the
Union . Nor does the record show that Respondent
has engaged in any other conduct which would prevent
the holding of a fair election We conclude, therefore,
" In this respect it is significant that none of the L P N 's joined
the "sit-in " at Doctors Hospital
154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the record does not preponderantly establish
Respondent's bad faith in refusing to recognize the
Union, and we shall dismiss the complaint.
In the instant case, at the time the Employer first insisted
upon an election, there was no showing that the Employer
had rejected the collective-bargaining principle or had
engaged in any interference, restraint, or coercion of employ-
ees to undermine the Union. Nor does the credible record
show that the Employer had at that time engaged in any
conduct which would have prevented the holding of a
fair election In that it does not appear that the Employer
acted in bad faith when it insisted upon an election or
resorted to unfair labor practices before it knew of its
employees' interest in a rival union, its insistence ' upon
an election may not be deemed unlawful. Thus a real
question of representation was raised, for when faced with
proof of a card majority an employer is within his rights
to insist upon an election, and this is true even though
he acknowledges the seeming validity of union authorization
cards by a signature check. As long as the insisting employer
stands free of commission of independent and substantial
unfair labor practices, union authorization cards in them-
selves may not be used to establish a union's majority
status. Cards for such purpose become material only when
an employer's insistence upon an election is accompanied
by the employer's misconduct of such a character as to
render a fair and uncoerced election unlikely. Gissel case,
supra, Arthur F. Derse, etc. supra. Thus the cards presented
to the Employer on April 21 could not under the circum-
stances of this case stand as proof of the majority status
of the Union. The Employer was not obligated to recognize
and bargain with Local 1115 on April 21 (cf. Sweatermasters
Co., Inc., 176 NLRB No. 38) and the Employer could
lawfully insist on an election.
A real question of representation may be resolved either
by an election or by an employer's "properly" recognizing
a union. See Keller Plastics Eastern, Inc., 157 NLRB 583.
Recognition of Local 1115 occurred in this case when
the Employer under stress abandoned its insistence upon
an election and signed a recognition agreement on April
26 and the next day signed a labor agreement. Was the
recognition under these circumstances "proper"?
As long as an employer lawfully insists upon an election
a real question of representation is pending unresolved.
During such a period a rival union's demand for exclusive
bargaining rights served on the employer is relevant and
the real question of representation already pending is broad-
ened to include the rival union 's claim . Once this claim
is advanced the employer is not legally free to recognize
and bargain with either union as the exclusive bargaining
representative of its employees until the real question of
representation had been resolved. Accordingly, when the
Association asserted its claim as exclusive bargaining repre-
sentative of the L.P.N's, untainted by any misconduct
of the Employer," the question of representation could
11 The Respondent Local 1115 insists that the Midwest Piping doctrine
is not applicable to the given situation, i e , "We submit that there
is no 'real question' [of representation] because of the employer [sic]
and Assn 's [sic] conduct." Local 1115 argues "All cards were 'tainted'
and the Assn cannot enjoy the fruits of the poisoned tree " But, assuming
not have been resolved either by voluntary recognition
of Local 1115 or the Association for the "cardinal element
of the Midwest Piping, 14 doctrine is that an employer cannot
arrogate unto himself authority to determine which of two
or more contending unions is entitled to recognition as
exclusive bargaining agent." Iowa Beef Packers, Inc., 144
NLRB 615, 619.25
Hence the recognition of Local 1115 during a period
when a real question of representation was pending was
unlawful and the contract executed pursuant to such unlaw-
ful recognition was and is null and void.
Accordingly the Trial Examiner finds that the Respondent
Employer, in recognizing the Respondent Local 1115 as
the exclusive representative of its L.P N.'s at a time when
Local 1115 had not been lawfully designated as their exclu-
sive representative for the purposes of collective bargaining
and thereafter entering into a collective-bargaining agree-
ment with Local 1115 covering such employees at a time
when a real -question concerning their representation for
the purposes of collective bargaining existed, violated Section
8(a)(2) and (1) of the Act.
The Trial Examiner further finds that Respondent Local
1115 violated Section 8(b)(1)(A) of the Act by accepting
recognition as the exclusive representative of L.P.N.'s and
by thereafter dealing and contracting with the Employer
in the circumstances above described, and the contract
which was obtained at a time when Local 1115 had not
been lawfully designated as the exclusive representative
of the Employer's employees must fail in its entirety.
The Trial Examiner further finds that the limitations
on union activity, as well as the right to refrain from
union activity, imposed by the maintenance of membership
provisions of the contract and the support to Local 1115
provided thereby are at odds with the requirements of
Section 8(a)(1), (2) and (3) of the Act, and that by reason
of the execution of and the maintenance of such provision
the Respondent Employer violated Section 8(a)(1), (2), and
(3) of the Act. Fiore Brothers Oil Co., Inc., 137 NLRB
191, 208, enfd. 317 F.2d 710 (C.A. 2); Mr. Wicke Ltd.
arguendo that the cards were "tainted" by the meeting of April 25
in room 102-A, such "taint" would not have vitiated the cards of original
Association supporters Alex, Hultz, Walters, DeSantis, Butler, and Short
or Pugh who was an Association member or Key, Maturano, Tudor,
Lejuene and Amarante whose cards were not signed in room 102-
A It may not be presumed that these employees had not or would
not have chosen the Association as their representative, even if the
meeting in room 102-A had not been held Moreover, the credible
proof does not establish that the Employer knew of, encouraged, or
gave its approval to the meeting of L P N 's for the purpose of Association
card solicitation In fact Ryan protested Neither the fact that the Associa-
tion lawyer stretched the truth nor the fact that certain nonsupervisory
employees assumed unauthroized solicitation privileges hangs the Employ-
er with unfair labor practices Furthermore no Employer's representative
was present at the meeting Under the circumstances of this case the
Association cards do not reflect the participation of the Employer in
their solicitation either directly or indirectly.
The Association's claim was a legitimate rival union claim Sweatermas
ters Co, Inc, supra
" Midwest Piping & Supply Co, Inc., 63 NLRB 1060
" "It is of no consequence that no petition for representation had
been filed by one of the rival unions for such a petition is not an
indispensable prerequisite to the existence of a question concerning repre-
sentation " Burke Oldsmobile, Inc, 128 NLRB 79, 86
DOCTORS HOSPITAL
Co., 172 NLRB No 181; Carlson Furniture Industries,
Inc., 153 NLRB 162.
The Trial Examiner further finds that , by entering into
the maintenance of membership provision in the contract
and accepting dues checked off to the Union , Local 1115
violated Sections 8(b)(1)(A) and (2) of the Act.
The Trial Examiner further finds that the Respondent
Employer in honoring the dues checkoff authorizations
obtained by the Respondent Employer 's unlawful assistance
and its deduction of dues pursuant to a contract executed
during a time when a real question of representation was
pending constituted a contribution of support to Local
1115 and thereby the Respondent Employer violated Section
8(a)(2) of the Act.
CONCLUSIONS OF LAW
1 The Respondent Employer is an employer engaged
in commerce within the meaning of Section 2(6) and (7)
of the Act.
2. The Respondent Local 1115 and the Association are
labor organizations within the meaning of Section 2(5)
of the Act.
3. By recognizing Local 1115 at a time when the Union
was not the lawful exclusive representative of the Respond-
ent Employer 's licensed practical nurses and by contracting
with it at a time when a real question concerning representa-
tion of such employees existed the Respondent Employer
thereby rendered and is rendering unlawful assistance and
support to a labor organization and has engaged in and
is engaging in unfair labor practices within the meaning
of Section 8(a)(2) and (1) of the Act
4. By including in said agreement a provision requiring
membership in Local 1115 and by deducting sums of money
from the wages of its licensed practical nurses for union
dues to Local 1115 pursuant to the Union's security provi-
sion of the agreement Respondent Employer has engaged
in unfair labor practices within the meaning of Section
8(a)(1), (2) and (3) of the Act.
5. By recognizing Local 1115 at a time when the latter
was not the lawful exclusive representative of its licensed
practical nurses and by contracting with it at a time when
a real question concerning representation of such employees
existed , the Respondent Employer has interfered with,
restrained , and coerced its employees in the exercise of
rights guaranteed in Section 7 of the Act and thereby
has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (a)(1) and (2) of the Act.
6. By accepting recognition as the exclusive representative
of the Employer's licensed practical nurses when it was
not the lawful exclusive representative of such employees
and by contracting with the Employer at a time when
a real question concerning representation of such employees
existed , and by accepting dues deductions for employees
covered by the agreement from the Employer , the Respond-
ent, Local 1115 , restrained and coerced employees in the
exercise of rights guaranteed in Section 7 of the Act and
has engaged in and is engaging in unfair labor practices
within the meaning of Section 8(b)(1)(A) and (2) of the
Act.
155
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
RECOMMENDED REMEDY
Since the Respondents have engaged in unfair labor prac-
tices and in order to protect the interests of the Employer's
employees as is compelled by the Act, the Trial Examiner
recommends that the Respondents cease and desist from
a continuation of their misconduct herein found and take
certain affirmative action designed to effectuate the policies
of the Act and restore as nearly as possible the conditions
which existed prior to commission of the unfair labor
practices. In order to dissipate the effect of the Respondent
Employer's unfair labor practices the Trial Examiner recom-
mends that the Respondent Employer be ordered to with-
draw and withhold recognition from the Respondent Local
1115 as the exclusive representative for the unit described
under the contract and to cease giving effect to the agreement
or to any renewal or extension thereof until such time
as Respondent Local 1115 shall have been certified by
the Board as the exclusive representative of the employees
in question. In order to dissipate the effect of Respondent
Local 1115's unfair labor practices it is recommended that
said Union cease maintaining or giving effect to its current
recognition and collective-bargaining agreement with the
Respondent Employer be excused from reimbursing employ-
until such time as the Respondent Union shall have been
certified by the Board as the exclusive representative of
the employees in question.
Although it has been found that the dues deductions
were in violation of the Act, in view of the compulsive
nature of Local 1115's "sit-ins"26 and the extreme peril
created thereby, the Trial Examiner recommends that the
Respondent Employer be excused from reimbursing employ-
ees for any dues deducted pursuant to the terms of the
contract prior to the issuance of this Decision. Cf. Intalco
Aluminum Corporation v. N.L.R.B. 417 F. 2d 36 (C.A.
9). The Employer maintains that "welfare payments received
by the Union and its Welfare Fund, from April 29th,
should be directed returned to the hospital and that all
Union dues collected by it of all of its members be returned
to each of them." As for the dues, since Local 1115
did obtain certain benefits for employees by its representation
of them, the Trial Examiner recommends likewise that
it be excused from reimbursing employees for any dues
deducted pursuant to the terms of the contract prior to
the issuance of this Decision.
As to the Employer's contributions on behalf of the
employees to the Local 1115 Welfare Trust Fund, pursuant
to the terms of the contract, a different problem is presented.
Under the terms of the contract there is no provision
for an employee's continued participation in the Fund after
the expiration of the contract. Thus the employee, upon
1° Cf NL R B. v Fansteel Metallurgical Corporation, 306 U S 240.
In this regard while the "sit-ins" were of doubtful legality, the Trial
Examiner is of the opinion that such conduct is not of such an insidious
character as to bar Local 1115 from further representation of "any
and all employees" as requested by the Respondent Employer
156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the voiding of the contract, will have no means by which
he may enjoy the benefits which the Employer's contribu-
tions were intended to provide, unless, of course, employees
again select Local 1115 as their bargaining agent and the
Fund is again instituted. However, in this there is a danger;
that is, employees may be unfairly induced to select Local
1115 as their bargaining agent because of a desire to enjoy
the benefits for which their Employer has already provided
contribution. To offset such contingency, to restore the
status quo ante, and to avoid an unjust enrichment, the
Trial Examiner recommends that the Respondent Local
1115 pay over to the employee the amount of money
which has been contributed to the Fund for him pursuant
to the terms of the contract, less any benefits from the
Fund received by him and less the reasonable costs incurred
in administering the Fund on his behalf (as distinguished
from the administrative costs incurred on behalf of other
participants) during the period contributions were made
to the fund for him and he was a beneficiary of the
Fund Perquisites of this character are a part of the employ-
ee's wages. Cf. Inland Steel Company v. N.L.R.B., 170
F 2d 247, 253 (C.A. 7), cert denied 336 U.S. 960; N.L.R.B.
v. Stackpole Carbon Company, 128 F. 2d 188, 191 (C.A.
3); W. W. Cross and Company, Inc. v N.L.R.B., 174
F. 2d 875 877-878 (C.A. 1); Lewis v. Benedict Coal Corpora-
tion 361 U.S. 459, 469.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law and the entire record in this case it
is recommended that:
A. Respondent Anton Notey, Et Ano, a co-partnership,
d/b/a Doctors Hospital, Freeport, New York, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Assisting or contributing support to the Respondent
Local 1115 or any other labor organization by recognizing
such labor organization as the exclusive representative of
its licensed practical nurses for the purpose of collective
bargaining at a time when there exists a real question
concerning representation.
(b) Assisting or contributing support to the Respondent
Local 1115 or any other labor organization by entering
into a collective bargaining contract with such labor organi-
zation as the exclusive representative for the purpose of
collective bargaining of its licensed practical nurses at a
time when there exists a real question concerning representa-
tion.
`(c) Giving effect to its contract of April 27, 1969, with
Respondent Local 1115 or to any renewal or extension,
modification or supplement thereto unless and until said
labor organization has been duly certified by the National
Labor Relations Board as the exclusive representative of
such employees
(d) In any like or related manner interfering with, restrain-
ing, or coercing its employees in the exercise of the rights
guaranteed by Section 7 of the Act.
2. Take the following affirmative action which is found
will effectuate the policies of the Act-
(a) Withdraw and withhold all recognition from the
Respondent Local 1115 as the exclusive representative of
its licensed practical nurses for the purpose of collective
bargaining unless and until the said labor organization
has been duly certified by the National Labor Relations
Board as the exclusive representative of such employees.
(b) Post at its hospital located at Freeport, New York,
copies of the attached notice marked "Appendix A [Board's
Appendix substituted for Trial Examiner's ] "2" Copies of
said notice, on forms provided by the Regional Director
for Region 29, after being duly signed by the Respondent
Employer's representative, shall be posted by it immediately
upon receipt thereof, and be maintained by it for 60 consecu-
tive days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent Employer
to insure that said notices are not altered, defaced, or
covered by any other material.
(c) Post at the same places and under the same conditions
as set forth in (b) above, as they are forwarded by the
Regional Director, copies of the Respondent Local 1115's
notice marked "Appendix B, [Board's Appendix substituted
for Trial Examiner's.]" and mail signed copies of the notice
marked "Appendix A" to said Regional Director for posting
at the place of business of the Local 1115 and places
where notices to members and employees and prospective
employees are customarily posted Copies of the notice
on forms provided by said Regional Director shall be
returned forthwith to the Regional Director after they
have been signed by an official representative of the
Respondent Employer for such posting.
(d) Notify the Regional Director for Region 29, in writing,
within 20 days from the receipt of this Decision, what
steps have been taken to comply herewith.28
B Respondent Local 1115, its officers, agents, and repre-
sentatives, shall:
1. Cease and desist from
(a) Accepting exclusive recognition as the representative
of licensed practical nurses of the Respondent Employer
for the purposes of collective bargaining at a time when
there exists a real question concerning representation.
(b) Entering into a collective-bargaining agreement with
the Respondent Employer as the exclusive representative
of its licensed practical nurses for the purpose of collective
bargaining at a time when there exists a real question
concerning representation.
" 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, recommendations, and Recommended Order
herein shall, as provided in Sec 102 48 of the Rules and Regulations,
be adopted by the Board and become its findings, conclusions, and
order, and all objections thereto shall be deemed waived for all purposes
In the event that the Board's Order is enforced by a Judgment of
a United States Court of Appeals, the words in the notice reading
"Posted By Order of the National Labor Relations Board" shall be
changed to read "Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations
Board "
" In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to read "Notify the Regional
Director for Region 29, in writing, within 10 days from the date of
this Order, what steps Respondent has taken to comply herewith "
DOCTORS HOSPITAL
(c) Giving effect to its contract of April 27, 1969, with
the Respondent Employer or to any renewal, extension,
modification, or supplement thereto unless and until it
has been duly certified by the National Labor Relations
Board as the exclusive representative of the employees.
(d) In any like or related manner restraining or coercing
employees of Respondent Employer in the exercise of the
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is necessary
to effectuate the policies of the Act-
(a) Pay over to each of the Respondent Employer's
employees the amount of money which has been contributed
to the Local 1115 Welfare Trust Fund by the Respondent
Employer in conformity with the conditions set forth in
that part of this Decision entitled "Recommended Remedy."
(b) Post at its business offices and meeting halls in
Freeport, Long Island, or elsewhere copies of the attached
notice marked "Appendix B."" Copies of said notice, on
forms provided by the Regional Director for Region 29,
after being duly signed by the Union's representative, shall
be posted by Respondent Union immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
157
thereafter, in conspicuous places, including all places where
notices to members are customarily posted. Reasonable
steps shall be taken by Respondent Union to insure that
said notices are not altered, defaced, or covered by any
other material
(c) Post at the same place and under the same conditions
as set forth in (a) above as soon as they are forwarded
by the Regional Director copies of the attached notice
marked "Appendix A."
(d) Mail to the Regional Director signed copies of the
Appendix B for posting by the Respondent Employer as
provided above herein. Copies of said notice on forms
provided by the Regional Director after being signed by
the Respondent Union's representative shall be forthwith
returned to the Regional Director for such posting
(e) Notify the Regional Director for Region 29, in writing,
within 20 days from the receipt of this Decision, what
steps have been taken to comply herewith.30
" See fn 27, supra
"See fn 28, supra