Greater New Orleans Artificial Kidney Center

National Labor Relations Board - Board Decisions

Dec 28, 1977

233 N.L.R.B. 1467 (N.L.R.B. 1977)

GREATER NEW ORLEANS ARTIFICIAL KIDNEY CENTER
Bio-Medical Applications of New Orleans, Inc., d/b/a
Greater New Orleans Artificial Kidney Center and
General Truck Drivers, Chauffeurs, Warehouse-
men and Helpers Local No. 270, a/w International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, Ind. Case 15-
CA-6385
December 28, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
On July 5, 1977, Administrative Law Judge Lowell
Goerlich issued the attached Decision in this pro-
ceeding. Thereafter, the General Counsel filed excep-
tions and a supporting brief, the Union filed excep-
tions, and Respondent filed a brief in support of the
Administrative Law Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge only to the extent consistent herewith.
The Administrative Law Judge found that Respon-
dent did not violate Section 8(a)(5) and (1) of the Act
by refusing to bargain with the Union, by failing to
supply certain information requested by the Union,
and by unilaterally changing wages and by reorga-
nizing its staff by changing certain jobclassifications. 2
We disagree with these conclusions for the reasons
specified below.
Respondent operates an out-patient facility in New
Orleans, Louisiana, that provides hemodialysis for
kidney patients. Following a Board-conducted elec-
tion, the Union was certified on December 31, 1975,
as the exclusive bargaining representative of a unit of
Respondent's hemodialysis technicians. Thereafter,
the parties held a number of negotiating sessions. 3
They failed, however, to reach an agreement. The
parties reached an impasse in April 1976, after which
Respondent granted wage increases on July 16,
1976. 4 Subsequently, the parties reached another
impasse on July 29, 1976.
'In his Decision at sec. III, par. 3, the Administrative Law Judge
indicated that an 8(g) charge against the Union was dismissed on November
15, 1975, and the appeal was denied on November 16, 1976, whereas, in fact,
the charge was dismissed on October 7. 1976, and the appeal was denied on
November 15, 1976. In addition, at sec. Ill, par. 4, the Administrative Law
Judge stated that there had been no bargaining "contracts" between
Respondent and the Union since July 29, 1976, whereas it is clear that he
intended to state that there had been no bargaining "contacts" since July 29,
1976.
233 NLRB No. 209
Thereafter, from August 3 to 10, 1976, the Union
engaged in a strike that 10 of the 21 unit employees
joined. At this time three of the unit employees were
on leave. During the strike eight other employees
crossed the picket line to work and after the strike
Respondent continued its operation with these eight
and those who by that time had returned from leave.
On August 10, the 10 strikers offered to return to
work. None of the strikers, however, has been
reinstated. On the basis of Respondent's action
toward these 10 strikers, the Union filed unfair labor
practice charges against Respondent on August 1,
1976, in Case 15-CA-6176. A complaint in that case
issued on October 13, 1976, and a hearing thereon
was held on December 6, 7, and 14, 1976. 5
On or about January 1, 1977, after the certification
year had expired, Respondent unilaterally increased
certain wages and changed certain job classifications
without notice to or bargaining with the Union.
Thereafter, in January, the secretary-treasurer of the
Union, Ledet, telephoned Respondent's administra-
tor, Maraist. Ledet inquired about resuming negotia-
tions and, thereafter, on February 2, 1977, sent a
telegram to Respondent in which he requested that
Respondent: (1) meet "to discuss wages, hours, and
conditions of employment"; (2) advise the Union
whether it had moved; (3) inform the Union whether
it had trained any other employees to do dialysis;
and (4) disclose whether it had promoted anyone to
lead technician or machine technician. On February
23, Respondent replied to the Union by a telegram in
which it declined to meet with the Union or to
provide the requested information. In support of its
action, Respondent indicated that it had a "good
faith doubt" that the Union still represented a
majority of its employees and asserted that its duty to
bargain had ended with the expiration of the certifi-
cation year.
The Administrative Law Judge concluded, and we
agree, that the Union in fact retained majority
support within the unit. The Administrative Law
Judge, nevertheless, concluded that Respondent had
sufficient objective considerations to support its
asserted doubt of the Union's majority status, finding
that the Union had abandoned any interest in
representing the employees in the bargaining unit. In
reaching this determination, he concluded that Colo-
2 In his Decision the Administrative Law Judge described Respondent's
changes in certain job classifications as reorganizing its staff. It is clear that
the reorganization only involved changing certain job classifications.
3 Negotiation meetings were held on February 3, 10, 11, 25, and 26;
March 19; April 19 and 20; and July 29, 1976.
' These wage increases are not alleged to have been unlawful.
5The case is currently pending before the Board on exceptions to a
decision of an Adrministrative Law Judge. In view of our decision herein, we
find it unnecessary to await the resolution of the issues in Case 15-CA-6176.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nial Manor Convalescent & Nursing Center, a Division
of the La Grange Land Corporation,6 was controlling
herein and therefore dismissed the complaint in its
entirety. We disagree.
In Colonial Manor, the Board found that the
respondent there had a reasonable basis for doubting
that the union continued to represent a majority of
its employees in view of the union's unexplained
failure to attend a scheduled bargaining session and
the total absence of any activity by the union and its
silence on behalf of the employees for more than 4
months, coupled with the employees' filing of a
decertification petition. In contrast, in the instant
case the Union at no time failed to attend a
scheduled negotiating session. Indeed, although no
bargaining sessions were held during the period from
July 29 to the expiration of the certification year, any
such meetings would appear to have been futile in
view of the impasse reached on July 29 and Respon-
dent's expressed bargaining position at that time. 7
Furthermore, from August 11 through December 14
the Union, consistent with the role of a collective-
bargaining representative, vigorously pursued the
rights of the employees by filing unfair labor practice
charges against Respondent based on its actions
towards the strikers and by participating in the
hearing held thereon. Additionally, after Respon-
dent's unilateral action on or about January 1, 1977,
the Union promptly contacted Respondent and
requested negotiations and, shortly thereafter, on
February 2, reiterated its request and sought infor-
mation from Respondent concerning matters affect-
ing all unit employees. Finally, unlike Colonial
Manor, the additional element of the filing of a
decertification petition is lacking here.
In view of the foregoing, we conclude, contrary to
the Administrative Law Judge, that the instant case
is distinguishable from Colonial Manor and that the
facts herein clearly established that the Union had
not abandoned interest in representing Respondent's
employees. We further note that the Administrative
Law Judge, in concluding that the Union had
abandoned its interest in representing the employees,
placed particular emphasis on his finding that,
notwithstanding the conclusion of the unfair labor
practice hearing on December 14, 1976, the Union
did nothing of significance until February 2, 1977, to
indicate to Respondent that it still considered itself
to be the majority representative of the employees or
6 188 NLRB 861 (1971).
1 We note in this regard the Administrative Law Judge's crediting of
Ledet's testimony that at the July 29 bargaining session Respondent's
representative stated that, "The Company is unwilling to move on
anything," and Ledet's reply that, "If the Company is unwilling to move on
any outstanding item we have, we are wasting time."
8 In its brief to the Board, Respondent contends that the impasse reached
on July 29. 1976, precludes the finding of an 8(a)(5) and (I) violation with
that it maintained interest in the employees who were
still working. It is clear, however, that in early
January the Union requested negotiations with Re-
spondent. In any event, unlike the Administrative
Law Judge, we cannot reasonably find that had the
Union failed to contact Respondent during this brief
period of time, this in itself would be sufficient to
warrant the conclusion that the Union had aban-
doned interest in representing Respondent's employ-
ees.
Accordingly, we find that the Union continued to
be the majority representative of the unit employees,
that the Union at no time abandoned its interest in
representing those employees, and that at all times
material Respondent was obligated to bargain with
the Union. It is therefore clear that Respondent, by
admittedly refusing to recognize and bargain with
the Union, and by unilaterally increasing wages 8 and
unilaterally reorganizing its staff by changing certain
job classifications without notice to or consultation
with the Union, violated Section 8(aX5) and (1) of
the Act. We further find that the information
requested by the Union on February 2, 1977, clearly
related to the terms and conditions of employment of
the bargaining unit employees and, therefore, was
relevant and necessary to the Union in exercising its
function as the collective-bargaining representative
of the unit employees. 9 Accordingly, Respondent's
admitted refusal to furnish the Union with the
requested information additionally violated Section
8(a)(5) and (1) of the Act.
CONCLUSIONS OF LAW
1. Bio-Medical Applications of New Orleans, Inc.
d/b/a Greater New Orleans Artificial Kidney Cen-
ter, is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. General Truck Drivers, Chauffeurs, Ware-
housemen and Helpers Local No. 270, a/w Interna-
tional Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, Ind., is a labor
organization within the meaning of Section 2(5) of
the Act.
3. At all times material herein, the Union has
been and is the exclusive representative of all
hemodialysis technicians at Respondent's New Orle-
ans, Louisiana, facility, excluding all other employees
including office clerical employees, medical techni-
cians, medical records clerk, chief technician, assis-
respect to the unilateral wage increases granted to employees in January
1977. Respondent, however, concedes that the record is silent concerning
whether the January 1977 increases were consistent with its final offer to the
Union at the July 29 meeting. Furthermore, it is clear from the record that
the January increases were determined after the July 29 meeting based on
area wage surveys conducted by Respondent sometime in November 1976.
We therefore find Respondent's asserted defense to be lacking in merit.
9 N.LR.B. v. Acme Industrial Co., 385 U.S. 432 (1967).
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GREATER NEW ORLEANS ARTIFICIAL KIDNEY CENTER
tant chief technician, housekeeping personnel, li-
censed practical nurses, registered nurses, profession-
al employees, watchmen, guards, and supervisors as
defined in the Act.
4. By refusing to recognize and bargain collec-
tively with the Union; by unilaterally increasing
wages and unilaterally reorganizing its staff by
changing certain job classifications without notice to
or consultation with the Union; and by refusing to
furnish to the Union the information it requested on
February 2, 1977, Respondent has engaged in and is
engaging in unfair labor practices within the meaning
of Section 8(a)(5) and (1) of the Act.
5. The aforesaid unfair labor practices are unfair
labor practices within the meaning of Section 2(6)
and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in
unfair labor practices violative of Section 8(a)(5) and
(1) of the Act, we shall order that it cease and desist
therefrom and that it take certain affirmative action
designed to effectuate the policies of the Act. We
shall order Respondent to recognize and bargain,
upon request, with the Union as the exclusive
bargaining representative of the employees in the
appropriate unit and embody in a signed agreement
any understanding reached. We shall further order
Respondent to supply the information requested by
the Union on February 2, 1977.
We shall further order Respondent, if requested by
the Union, to rescind the reclassification of certain
employees. It will be provided, however, that nothing
contained herein shall be construed as requiring to
revoke the wage increases or other benefits hereto-
fore granted. (See Strayer's Johnsonville Meats, Inc.,
174 NLRB 693, fn. 4 (1969).) We shall also require
Respondent to post appropriate notices.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Bio-Medical Applications of New Orleans, Inc.,
d/b/a Greater New Orleans Artificial Kidney Cen-
ter, New Orleans, Louisiana, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to recognize and bargain with General
Truck Drivers, Chauffeurs, Warehousemen and
Helpers Local No. 270, a/w International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
tO In the event that this Order is enforced by a Judgment of a United
States Court of Appeals. the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Helpers of America, Ind., as the exclusive bargaining
representative of the employees in the following
appropriate unit:
All hemodialysis technicians at Respondent's
New Orleans, Louisiana, facility, excluding all
other employees including office clerical employ-
ees, medical technicians, medical record clerk,
chief technician, assistant chief technician, house-
keeping personnel, licensed practical nurses, reg-
istered nurses, professional employees, watchmen,
guards, and supervisors as defined in the Act.
(b) Unilaterally changing wages and changing job
classifications without notice to or bargaining with
the Union.
(c) Refusing and failing to supply information
concerning unit employees requested by the Union in
its telegram of February 2, 1977.
(d) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise
of the rights guaranteed to them in Section 7 of the
Act.
2. Take the following affirmative action to effec-
tuate the policies of the Act:
(a) Upon request, recognize and bargain collective-
ly with General Truck Drivers, Chauffeurs, Ware-
housemen and Helpers Local No. 270 a/w Interna-
tional Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, Inc., as exclusive
representative of its employees in the above-de-
scribed appropriate bargaining unit, and embody in
a signed agreement any understanding reached.
(b) If requested by the Union, rescind the reclassifi-
cation of certain employees. However, nothing con-
tained herein shall be construed as requiring Respon-
dent to revoke the wage increases or other benefits
heretofore granted.
(c) Upon request, supply to the Union information
concerning whether Respondent has moved, whether
it has trained any other employees to perform
dialysis, and whether it has promoted any employees
to lead technician or machine technician.
(d) Post at its New Orleans, Louisiana, facility
copies of the attached notice marked "Appendix." IO
Copies of said notice, on forms provided by the
Regional Director for Region 15, after being duly
signed by Respondent's authorized representative,
shall be posted by Respondent immediately upon
receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 15, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply here-
with.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act gives all
employees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through a repre-
sentative of their own choosing
To act together for collective bargaining
or other aid or protection
To refrain from any or all of these things.
WE WILL NOT refuse to recognize and bargain
with General Truck Drivers, Chauffeurs, Ware-
housemen and Helpers Local No. 270, a/w
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America,
Ind. as the exclusive representative of our em-
ployees in the following appropriate unit:
All hemodialysis technicians at Respon-
dent's New Orleans, Louisiana, facility ex-
cluding all other employees including office
clerical employees, medical technicians,
medical records clerk, chief technician, assis-
tant chief technician, housekeeping person-
nel, licensed practical nurses, registered
nurses, professional employees, watchmen,
guards, and supervisors as defined in the
Act.
WE WILL NOT unilaterally change wages and
reclassify employees without notice to or consul-
tation with the Union.
WE WILL NOT refuse to supply information
requested by the Union concerning whether we
have moved, whether we have trained any other
employees to do dialysis, and whether we have
promoted anyone to lead technician or machine
technician.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed to them in
Section 7 of the Act.
WE WILL, upon request, recognize and bargain
collectively with the above-named Union as the
exclusive representative of our employees in the
unit set forth above.
WE WILL, if requested by the Union, rescind
the reclassification of certain employees. Nothing
herein shall be construed as requiring us to revoke
the wage increases or other benefits heretofore
granted.
WE WILL, upon request, supply to the Union
information concerning whether we have moved,
whether we have trained any other employees to
do dialysis, and whether we have promoted
anyone to lead technician or machine technician.
BIO-MEDICAL
APPLICATIONS OF NEW
ORLEANS, INC., D/B/A
GREATER NEW ORLEANS
ARTIFICIAL KIDNEY
CENTER
DECISION
STATEMENT OF THE CASE
LOWELL GOERLICH, Administrative Law Judge: The
charge filed by General Truck Drivers, Chauffeurs, Ware-
housemen and Helpers Local No. 270, a/w International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, Ind. (herein called the Union), on
February 28, 1977, was served on the Bio-Medical Applica-
tions of New Orleans, Inc., d/b/a Greater New Orleans
Artificial Kidney Center, Respondent herein, on or about
the same date. Complaint and notice of hearing was issued
on March 31, 1977. The complaint charged that Respon-
dent violated Section 8(aXI) and (5) of the National Labor
Relations Act, as amended, herein referred to as the Act,
by refusing to bargain with the Union, by failing to supply
information requested by the Union, and by unilaterally
changing wages and reorganizing its staff.
Respondent filed a timely answer denying that it had
engaged in any of the unfair labor practices alleged. The
case came on for hearing at New Orleans, Louisiana, on
May 12, 1977. 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 have
been carefully considered.
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GREATER NEW ORLEANS ARTIFICIAL KIDNEY CENTER
FINDINGS OF FACT,' CONCLUSIONS, AND REASONS
THEREFOR
I. THE BUSINESS OF RESPONDENT
Respondent, a Delaware corporation, is engaged in
providing out-patient facilities for hemodialysis at its New
Orleans, Louisiana, facility, the only facility involved in
this proceeding. During the last 12 months, a representative
period, Respondent, in the course and conduct of its
business, received in excess of $250,000 for providing
hemodialysis for kidney patients. During the same period
of time, Respondent purchased supplies and materials
valued in excess of $50,000 which were shipped directly to
it from points located outside the State of Louisiana.
Respondent 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 ORGANIZATION INVOLVED
The Union is, and has been at all times material herein, a
labor organization within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
On December 19, 1975, a stipulated election was held in
a unit of Respondent's hemodialysis technicians in which
22 employees participated; 17 votes were cast for the
Union, 4 against, and I vote was challenged. The Union
was certified as the collective-bargaining agent thereafter
on December 31, 1975. Negotiation meetings occurred on
February 3, 10, 11, 25, and 26; March 19; April 19 and 20;
and July 29, 1976. An impasse was reached in April after
which Respondent granted wage increases on July 16,
1976. Another impasse was reached on July 29, 1976.2
Thereafter, on August 3, 1976, the Union engaged in a
strike. Out of 21 technicians on the payroll, 10 employees
joined the strike. Three were on leave. On August 10, 1976,
the 10 strikers offered to go back to work but were not put
to work; they were placed on a preferential hiring list. The
Employer continued its operation with the 8 employees
who had crossed the picket line and the 3 who had been on
leave (these 3 had returned after the strike), 11 in all. One
of these employees was Enrique Carvajal, the son of Dr.
Enrique Carvajal, one of the medical directors of the
Center. 3 These II employees continued working at all
times material herein. None of the strikers has been
returned to employment.
On August 11, 1976, charges of unfair labor practices
were filed against Respondent by the Union (Case 15CA-
6176). A complaint issued on October 13, 1976, and a
1 The facts found herein are based on the record as a whole and on
observation of the witnesses. The credibility resolutions herein have been
derived from a review of the entire testimonial record and exhibits, with due
regard for the logic of probability, the demeanor of the witnesses, and the
teachings of N. L.R. B. v. Walton Manufacturing Company & Loganville Pants
Co., 369 U.S. 404. 408 (1962). As to those witnesses testifying in contradic-
tion to the findings herein, their testimony has been discredited. either as
having been in conflict with the testimony of credible witnesses or because it
was in and of itself incredible and unworthy of belief. All testimony has
been reviewed and weighed in the light of the entire record. No testimony
has been pretermitted.
hearing thereon was held on December 6, 7, and 14, 1976.
The case is still pending.4 On August 6, 1976, a charge was
filed against the Union alleging violations of Section 8(g) of
the Act. The charge was dismissed on November 15, 1975,
and the appeal denied on November 16, 1976.
Immediately after the certification expired on December
31, 1976, Respondent, on January 1, 1977, put into effect
certain wage increases and changed certain job classifica-
tions without notice to or bargaining with the Union. Up to
this point in time, there had been no bargaining contracts
between Respondent and the Union since July 29, 1976.
Sometime in January 1977, Ledet telephoned Leon Ma-
raist, Respondent's administrator, and asked him "if there
was a possibility we could resume negotiation and also
asked him about vacation pay that [hel thought he owed
some of the people that . . . went out on strike." Thereaf-
ter, on February 2, 1977, Ledet addressed a telegram to
Respondent in which it was requested among other things
that Respondent meet "to discuss wages, hours, and
conditions of employment." The telegram also included the
following:
Please advise whether you have moved. Have you
trained any other employees to do dialysis? Have you
promoted anyone to lead technician or machine techni-
cian?5
Respondent replied by a telegram on February 23, 1977,
in which it declined to meet with the Union or furnish the
requested information. Respondent noted that the certifi-
cation year had expired on December 31, 1976, and that
the "employer has a valid good faith doubt that your local
represents the majority of our remaining technicians who
worked through the strike consequently the employer has
no obligation to bargain with your local union or furnish
you the requested information."
As objective considerations to support its good-faith
doubt Respondent offered testimony through Maraist that
he had learned from two employees, Ester Nobles and Lois
Dunson, that they "did not want to have anything to do
with the union.... that several other technicians told
them the same thing." From two other employees, Enrique
Carvajal and Rick Wilmont, Maraist learned that "they
didn't feel they needed the union, or something to that
effect." Maraist further testified as a basis for a good-faith
doubt, "[W le felt that the working technicians, the fact that
they did cross the picket line, that they did volunteer
themselves to work overtime or whatever, during the strike,
to carry the center. Based on their overall attitude, they did
not in fact want to have anything to do with the union."
"It is well settled that a certified union, upon expiration
of the first year following its certification, enjoys a
2 Mitchel Ledet, secretary-treasurer of the Union, quoted Respondent's
representative as saying at the July 29 meeting, "The company is unwilling
to move on anything," and his reply, "If the company is unwilling to move
on any outstanding item we have, we are wasting time.'
3 The General Counsel claims that employee Carvajal should be
excluded as an eligible employee for the determination of majontrity status
because of his relationship with Dr. Carvajal.
4 The complaint concerned whether Respondent violated the Act by
refusing to reinstate the 10 technicians who engaged in the stnke.
5The General Counsel contends that under the Act Respondent is
obligated to furnish this information
1471
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rebuttable presumption that its majority representative
status continues.... Accordingly, once the presumption
is shown to be operative, a prima facie case is established
that an employer is obligated to bargain and its refusal to
do so would be unlawful. The prima facie case may be
rebutted if the employer affirmatively establishes either (1)
that at the time of the refusal the union in fact no longer
enjoyed majority status; or (2) that the employer's refusal
was predicated on a good-faith and reasonably grounded
doubt of the union's continued majority status. As to the
second of these . . . the asserted doubt must be based on
objective considerations .... " Terrell Machine Company,
173 NLRB 1480, 1480-81 (1969), enfd. 427 F.2d 1088 (C.A.
4, 1970). Moreover, the fact that an employee works during
the strike cannot be used as a factor to bolster an
employer's good-faith doubt.6 Thus, assuming arguendo
that there were 11 employees in the unit, 4 of whom
Respondent believed had disavowed the union representa-
tive, a majority remained who may be considered as
favoring union representation. The majority is more pro-
nounced if the 11 exstrikers on the preferential hiring list
are included in the unit.7
Hence, based on these objective considerations there was
no valid basis for Respondent's alleged good-faith doubt
unless it may have stemmed from the Union's lack of
contact with Respondent either by way of a request for
bargaining or otherwise as contended by Respondent. To
6 "The Board has clearly stated that the mere failure of employees to
support a strike called by their bargaining representative does not give rise
to a presumption that these employees have repudiated the union as their
bargaining representative." Coca Cola Bottling Works, Inc., 186 NLRB 1050,
1053 (1970).
I Moreover, in its brief Respondent concedes that "a] s economic
support this contention, Respondent cites Colonial Manor
Convalescent & Nursing Center, 188 NLRB 861 (1971), as
controlling the disposition of the instant case. These cases
are alike in that, in each case unfair labor practices were
pending during a hiatus in bargaining which exceeded a
period of more than 4 months. While in Colonial Manor,
unlike the instant case, a decertification petition had been
filed, the Board (at 862, fn. 2), declared that it did not rely
on this fact "to any significant extent." Opined the Board,
"Rather, we note that notwithstanding notice of the
dismissal in December 1969 the Union still did nothing for
3 months that would indicate that it still considered itself
the representative of a majority of Respondent's employ-
ees." In the instant case, although the unfair labor practice
hearing in Case 15-CA-6176 ended on December 14, 1976,
the Union "still did nothing" (at least no more than the
union did in Colonial Manor) of significance until February
2, 1977, that would indicate to Respondent that it still
considered itself the majority representative of Respon-
dent's employees or that it was interested in the employees
who were working. In this regard it is of significance that
the Union's show of interest did not occur until after the
certification year had expired.8 Considering myself bound
by the holding in Colonial Manor, I have no alternative but
to dismiss the complaint in its entirety.
[Recommended Order for dismissal omitted from publi-
cation.]
strikers on a preferential hiring list, those strikers that were not reinstated
maintained their right to vote in the election."
8 Unexplained in the record is why the Union, which claimed an alleged
interest in bargaining, waited until after the certification year expired to
contact the Employer.
1472